### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y

8, 200 7

BILLY RAY RILE Y v. STA TE OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Madison Cou nty

No. C-06- 061 Roger A. P age, Judge

No. W2006-01520-C CA-R 3-P C - F iled Jul y 12, 2007

The petiti oner, Billy Ray Riley , was convicted by a jury in the M adison County Circuit Court of theft

o f p r o p e rt y v a l u e d m o r e t h an$ 1 0 0 0 b u tl e s s t h an$ 1 0 , 0 0 0 , an d h e w a s s e n t e n c e d a s a R an g e III , persistent off

ender to twelve y ear s incarc eration in the Tennessee Depa rtmen t of Corre ction. Subsequently , the petitioner filed a petition for post-c onviction relief, a lleg ing that his trial counsel

was i n ef fe ct i v e b y not thoroug hly

revie wing his file with him, by not convincing him to testi fy at trial, and by having a conflict of i ntere st reg arding the case. The post-conviction court found that

c ouns e l w a s n ot i ne ff

e c tiv e and

de nie d th e peti tio n. On

a pp e a l, t he pe tit ion e r c on te sts the po stconviction cour

t’s ruling . Upon our re view of t h e re cord a nd the par

ties’ brief s, we a ffirm the judgme nt of the post-convic tion court.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court is Aff irm ed

.
N OR MA M C G EE O G LE , J ., delivere d the opinion of the cour t, in which J OS EP H M. T I PTON , P.J ., and J ER R Y L. S MI TH , J ., joined.

J

. C o l i nM o r

r i s , J a c k s o n , T e n n e s s e e , f o r t h e a p p e l l an t , B i l l y R ay R i l e y.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , A ssi sta nt A tto rn e y

Ge ne ra l; J ames G. Woodall, District Attorney Gene ral; and James W. Thompson, Assi stant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I. F ac tu al B ac kgr ound
The pe titioner was cha

rg ed with the thef

t of proper

ty valued o v er $1000 but less than $10,000. The proof

at trial reveale d that the victim, Harr iet Elaine Ne wber n, lived in J ackson. H er tw e nty -f ive -y e ar-o ld da

ug hte r s uf

fe re d f ro m di a be te s and bli nd ne ss a nd oc c a sio na lly

sta y e d in Maplewoo d

N u r s in g H o me to r e c e iv e tr e a tm e n t f o r h e r d ia b e te s

. O nJa n u ar

y 1 3 , 2 0 0 3 , N ewbe rn held at her home a birthday party for her daug hter. Fa rley Har dison a

nd the petitioner c ame to the-2-

party and told Newbe rn that they wer e traveling from Na shville t o M em p h i s. Newbe rn knew Ha rd iso n b ut n ot t

he pe tit ion e r. B e c a

us e Ne wb e rn

c ou ld t e ll that th e me n h a d b e e n d ri nk inga lc oh ol, she invited them to spend the nig ht in her home.

After the par ty , Newbe rn, Ha

rdison, and the pe t i t ioner drove Newbe rn’s da ug hter to the nursing home. The f

ollowing day , Newbe rn and the petit ioner drove t o the nursing hom e to pick up Newbe rn’s da

ug hter. Ne wber

n allowed the pe titioner to drive her vehicle to the nur sing home , and she rode with him. L ater

that day , they

drove N ewbe rn’s da

ug hter back t o the nursing home in the petitioner’s ve hicle. On January 15, Newbe rn had a

do ctor’s a

ppointment. The petitioner aske d Ne wb e rn if he c ou ld v isi t he r da

ug hte r in the nurs ing ho me wh ile Ne wb e rn wa s at th e a

pp oin tme nt. Newbe rn ag re ed an d permitted him to drive her vehicle to Ma

plewood. The petitioner left Ne wb e rn ’s ho me be fo re no on , a nd Ne wb e rn

wen t to he r a

pp oin tme nt. Af

te r t he a pp oin tme nt, Ne wb e rn re tur ne d h ome , b ut t

he pe tit ion e r had no t ret urne d w ithhe r v e hic le . N e wb e rn be c a me
c o n c e r n e d an d dr o v e t o M a

p l e w o o d w h e r e s h e l e ar

n e d t h a t t h e p e t i t i o n e r h a d n o tb e e nt h e r e t h a td a y.

Ne wb e rn re tur ne d home and wa ite d for the pe tit ion e r. Th e pe tit ion e r ha d not r e tur ne d w ith the vehicle by

5:00 p.m., so Newbe rn called the police. The police came to Newbe rn’s home, a nd she g ave a

repor t. The petitioner c alled Ne wber n while the po l ice we re the re. D uring the

conver sation, Newbe rn instructed the petitioner to retur n her vehicle, and he replied, “I can’ t.” The petitioner did not return the vehicle, which was worth about $3,500. Newbe rn spec ifically stated she ha d a llo wed

the pe tit ion e r t o d

ri ve the ve hic le to v isi t he r d a ug hte r, bu t sh e ha d n ot g ive n h im permission to keep the vehicle indefinitely

. Newbe rn acknow ledg ed that when the pe titioner called on J anuar y 15, he told her that he was lost. She also acknowledg ed that when she g ave the petitioner pe rm iss ion

to d ri ve the ve hic le , s he did

no t te ll h im w hat ti me to r e tur n it

. The pe titioner g ave a statement to police indicating that he had r idden with Har dison from Knoxvi lle to Newbe rn’s home in Jackson. New bern invited them to stay with he r, and the pe titioner beca me ac quainted wi t h Newbe rn’s da ug hter. On January

15, the petitioner a sked Ne wber n if he could “bor

row” her ve hicle so he could visit her daug hter at the nursing home. New bern a llowed him to take the vehicle , but he bec ame lost on his way . He c alled Ne wber n’s daug hter, a

nd she g ave him directions. Howeve r, he a g ain bec ame lost and drove toward Kn o x v ille. The petitioner maintained that he “‘should not have went t o Knoxvi lle. I am wrong f or that.’” State v. Billy

Ray Riley , No. W2004-02016-CCA-R3-CD, 2005 WL 1768718, at **1-2 (Tenn. Crim. App. at J ackson, J uly 26, 2005), per

m. to appeal de nied, (Te nn. 2005). B ased u pon the fore g oing pr oof, the jury found the pe titioner g uilty of theft of proper ty valued over $1000 but le ss tha n $10,000, and the tria l court sente nced the petitioner as a Rang e I I Ipersistent off

ender to twelve y ear s.
Subsequently , the petitioner filed a petition for post-conviction relief , alleg ing that his trial

c ouns e l w a s in e ff

e c tiv e by no t th or ou g hly

re vie wi nghis fi le wi th h im, by no t conv in cin g h im t oT h e p e tit io n e r ra ise d a d d iti o n a l issu e s in the lo w e r c o u rt; h o w e v e r, the th re e iss u e s a d d re sse d a re the o n ly 1
issu e s ra ise d o n a p p e a l.

-3- te sti fy a t tria l, a nd by havin g a c on fl ic t of

int e re st r e g ard ingthe c a se be c a us e he r f ir m ha d p re vio us ly repr esente d Newbe rn in a ba nkruptcy case

. 1
At the post-conviction hea ring , the petitioner’s trial counsel testified that she wa s appointed to re pr e se nt t

he pe tit ion e r a ft e r h is o the r atto rn e y s w e re re mov e d f ro m r e pr e se ntatio n d

ue to conflicts. When trial counse l beg an represe nting the petitioner, she was unawa re that her fir

m had pr e vio us ly

re pr e se nte d N e wb e rn

in a ba nk ru ptc y c a se . Co un se l st a te d th a t sh e ha d n ot p e rs on a lly repr esente d Newbe rn, but she subs equently saw Newber n’s name on a “c ase f

ile list.” At that tim e, counsel infor

med the petitioner of

her f irm’s prior re prese ntation of New bern, and counsel a sked the pe tit ion e r if the pr ior re pr e se ntatio n wa s pro ble ma tic

. At fi rs t, the pe tit ion e r d id n ot k no w i f i t w ou ld b e a p r o b le m. T h e is s u e w a s a d dr e s s e d in o p e n c o u rt, an d th e p e ti ti o n e r s a id th a t the prior repr esentation would not be a problem and counsel could continue to repr esent him . The pe titioner

never asked c ounsel to withdraw f rom repr esentation.

Pr ior to t ri a l, co un se l file d a disc ov e ry mot ion and su bs e qu e ntl y

c op ie d th e State ’s e nti re c a se file. Counsel rec alled that she r eturne d two or three times as the investig ation proce eded to e nsure that she had c opied all the information in the file. After counsel obtained the copies, she r eviewe d the discover

y materia ls with the petitioner. Counsel rec alled that she me t with the petitioner approximately

ten times.

Counsel r eca lled that the petitioner could not unde rstand why he was being char g ed with a crime w hen he ha d Newbe rn’s permission to take the ve hicle. Counsel explained to the petitioner that the State’s proof

indicated that he had excee ded the sc ope of N ewbe rn’s pe rmission. The pe tit ion e r b e lie ve d th a t he wa s inno c e nt o f a ny c ri me and

fe lt that any

a tto rn e y wh o d isa g re e d s ho uld not be re prese nting him.

Couns e l r e c a lle d th a t sh e argue d to the jur y that the pe tit ion e r h a d N e wb e rn ’s pe rm iss ion to use the ve hicle and that he had used t he vehicle on numerous oc casions. Additionally , the jury was instructed on the lesse r-include d offe nse of unauthorized use of a motor vehicle. N ewbe rn admitted during trial that she had g iven the petitioner pe rmission to use her vehicle, but she emphasized that sh e g a ve him

pe rm iss ion

to u se the ve hic le to g o to the nurs ingho me

. Couns e l state d, “ I thi nk Idid g et i t eff ectively acr oss that there was permission there .” She explained that the trial ne ver hing ed upon whether

Newbe rn g ave permission to use the vehicle but center ed upon whe ther the pe titioner exceede d the scope of that per mission.
Counsel stated that the petitioner did not provide the names or te lephone number s of any one who could be a w i t n ess for him at tria l. The petitioner told counse l that while he had N ewbe rn’s vehicle, he went to visit a sick uncle beca use it wa s an emer g ency

. Howeve r, the petitioner neve r provided to counse l the uncle’ s name or c ontact information. Additionally , counsel stated that she could have called H ardison as a witness, b u t ca l l ing H ardison risked inf orming the jury

that the-4-

petitioner and H ardison had a rrived at Newbe rn’s residence in a st olen J eep. Counsel wanted to ke ep the jury from lea rning that the J eep ha d been stolen.

Counsel rec alled that she r epeatedly discussed with the petitioner whe ther he would testify

a t tr ia l. Couns e l and the pe tit ion e r d isc us se d th a t th e on ly tw o p e op le wh o k

ne w the arr ang e me nts about the vehic le wer e Newbern and the pe titioner. Moreove r, they also discussed that if the petitioner testified, the State w ould attem p t to impeach his testimony with his ex tensive cr iminal his tor y . T he pe tit ion e r c on sis te ntl y sa id t hat he wo uld

te sti fy . Pr ior

to g ivi nghe r o pe nin g state me nt, counsel ve rified that the petitioner would testify

. Counsel said that she t old the j ury the petitioner would testify

beca use the pe t i t i o n er had assure d her that he would. Howe ver, at the close of the State’s proof the petitioner dec ided not to testify

. The pe titio n er t es t ified on his own beha lf at the post-c onviction hear ing. T he petitioner

re c a lle d th a t two attor

ne y s with dr e w fr om re pr e se ntatio n pri or to t he a pp oin tme nt o f t

ri a l c ouns e l. The pe titioner said that when c ouns el informed him that her firm had pr eviously

repr esente d Ne wb e rn , h e tol d h e r t

hat he wa nte d a ne w a tto rn e y . Wh e n d isc us sin g the ma tte r w iththe tr ia l c ourt , the trial cour

t told the petitioner that if he did not acc ept the re prese ntation of trial counse l the petitioner would have to repre sent himself. At that point, the pet i t i o n er ac q u iesce d to counsel’s repr esentation.

He sa id t hat c ou ns el vi sit e d h im o nly thr e e tim e s. He c omp la ine d th a t sh e did no t c a ll h is

u n c le to te s ti f

y a t t r ia l. H e a s s e rte d

th a t h is u n c le w o u ld

h a v e te s ti f

ie d th a t t h e p e ti ti o n e r

c a ll ed Newbe rn and trie d to return the vehicle, but he did not have a w ay of g etting it to her . The pe titioner maintained that coun s el d i d not issue a subpoena for his uncle , and she did not explain why she failed to issue a

subpoena.
The pe titione r co m p l ai ned that counse l did not show him until fifteen day s prior to the sentenc ing he aring a victim impact s tatement written by Newbe rn. The pe titioner maintained that in t he state me nt, Ne wb e rn state d tha t she did no t w ant t o p ro c e e d w iththe c a se . T he pe tit ion e r f e lt that counsel should have used the stateme nt to ge t his case dismissed.
The pe titioner stated that he did not under stand how he c ommitt ed thef t when he ha d Newbe rn’s pe rmission to use the vehi cl e; h e also did not understa nd what it meant to exceed the scope o f Ne wber

n’s per mission. The petitioner complained that c ounsel did not direct the jury ’s attention to unauthorized use of a vehicle. He co n t en d ed that his defe nse wa s that he had not committed theft but had instead c ommitt ed the una uthorized use of the ve hicle.

At the conc lusion of the post-conviction hea ring , the post-conviction cour t found that there

was no c onflict of intere st based upon counse l ’s fi rm p reviously repr esenting Newbe rn on an unrelated matter. Reg ardle ss, the court noted that the petitioner did not ass er t h o w t he alleg ed conflict pre

judiced him. Moreove r, t h e post-conviction cour t asserte d that the petitioner did not prese nt a n y p r o o f to s u

p p o rt h is r e ma in in g a ll e g a ti o n s

. T h e c o u rt f o u n d th a t c o u n s e l w as not ineffe ctive. The petitioner now a ppeals.-5- II. Ana lys is

To be successful in his claim for post-c onviction relief, the petitioner must prove a ll factua l alleg ations contained in his post-conviction petition by clea r and c onvincing evidenc e. See Te nn. Code Ann. § 40-30-110( f) (2006). “‘Clea r and convincing evidenc e means e vidence in which there is n o s e r io u s o r s u

b s ta n ti a l d o u b t a b o u t th e c o r

r e c tn e s s o f th e c o n c lu s io n s dr aw n f r om the

e vid e nc e .’ ” State v. Ho lde r, 15 S.W. 3d 90 5, 91 1 (T e nn

. Cr im. Ap p. 19 99 ) ( qu oti ngHo dg e s v . S. C. To of & Co. , 8 33 S.W. 2d

89 6, 90 1 n .2 (T e nn

. 19 92 ))

. I ssu e s re g ard ingthe c re dib ili ty of wi tne sse s, the weig ht and value to be acc orded the ir testimony , and the f actua l questions raised by the evidenc e adduce d at trial ar e to be r esolved b y t h e p o s t-conviction cour t as the trier

of fa ct. See He nley

v. S t at e, 9 6 0 S

. W

. 2 d

5 7 2 , 5 7 9 (T en n

. 1 9 9 7 ). T h er ef o re , we af fo rdth e p o s t -c o n v i ct i o nco u rt ’s fi n d i n gs of fa ct the we ight of

a jury verdic t, with suc h finding s being conclusive on a ppeal a bsent a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

A c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l is a mixe d qu e sti on of law a nd fa c t. S e e State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a pre sumption t hat those finding s are corr ect. See Fields v. S tate, 40 S.W.3d 450, 45 8 ( Te nn . 2 00 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n co ur t’ s c on c lus ion s o f l aw p ur e ly de novo. I d.

“To e stablish i n eff

ective a ssistance of c ounsel, the petitioner be ars the bur den of pr oving both that counsel’s performa nce was deficient and that the deficie ncy prejudice d the def

ense.” Goad

v. St a te , 9 3 8 S. W. 2 d 3 6 3 , 3 6 9 ( T e n n

. 1 9 9 6 ) ( c it in g Str ic k la n d v

. Wa s h in g to n , 4 6 6 U

. S. 6 6 8 , 687, 104 S. Ct . 2052, 2064 (1984))

. I n evaluating whether the petitioner has met this burden, this court must determine whe ther c ounsel’s p er formance wa s within the rang e of c ompetence require d of attorney s in criminal case s. See B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) . Moreove r,

[b] eca use a petitioner m ust establish both prongs of the test, a fa ilure to p ro ve e ith e r d e fi c ie nc y or pr e jud ic e pr ov ide s a su ff

ic ie nt b a sis to deny relief on the ineffe ctive assistanc e cla im. I ndeed, a court ne ed

no t a dd re ss t he c omp on ent s in a

ny pa rt ic ula r o rd e r o r e ve n a dd

re ss bo t h i f t he [petitioner] m akes a n insufficient showingof one

c omp on e nt.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

On a pp e a l, the pe tit ion e r co mpl a ins that hi s tr ia l c ouns e l w a s in e ff e c tiv e by no t th or ou g hly revie wing his file with him, by not convincing him to testi fy at trial, and by

having a conf

lict of interest bec ause her fi rm had pre viously repr esente d Newbe rn in a ba nkruptcy case . I n its order de nyingthe pe tit ion , th e po st- c on vic tio n c ourt imp lic itl y a c c re dit e d the te sti mony of tr ia l c ouns e l. At the post-conviction hea ring , trial counsel testified t hat she met with the pe titioner at least ten times and revie wed a ll discovery documents with him. The petitioner doe s not alleg e any thing that

c ouns e l sh ou ld h a ve re ve a le d b ut d id n ot n or doe s h e a lle g e wh a t pr e

jud ic e he su ff

e re d b y thi s-6-

alleg ed def

iciency . Moreove r, trial counse l asserte d that the petitioner de cided not to testify during trial; until then, t he petiti oner assured her t hat he would testify at t rial. Counsel had informed the petitioner that only

he and N ewbe rn knewwhat happe ned betwe en them re g ardingthe vehicle . She also informed him t h at i f he testified the State would attempt to impeach him with his ext ensive criminal history

. The right to testify at t rial i s a fundamental right t hat m ay be waived onl y by the

acc used, and de fense att o rn ey s m ay n ot unilaterally deprive their clients of that rig ht. Momon v. State, 18 S.W .3d 152, 161-62 (Te nn. 1999). In this case, howe ver, the petitioner chose not to testify in his defense . Counsel was not defic ient for honor ing the wishes of the pe titioner. Finally , counsel te sti fi e d th a t sh e inf

or me d c ouns e l of

the po te nti a l c on fl ic t of

int e re st, and the pe tit ion e r u lti ma te ly ag ree d that counsel c ould continue her repr esentation. L ike the trial c ourt, we ca n discern no prejudice deriving from counsel’s firm previously repr esenting Newbe rn in a bankrupt cy ca se. Acc ording ly , the petitioner has failed to me et his bur den of showing that the re cord pr eponder ates ag ainst the trial cour

t’s finding s.

III. Conclusi on
Finding no err or, we aff

irm the judg ment of the post-c onviction court.

___________________________________ NORMA McGEE OGL E, J UDGE