Despite entering guilty pleas to both felony murder and aggravated burglary, the petitioner challenges only 1

the validity of his conviction for felony murder.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 24, 2008 Session

MICHAEL DERRICK HUSKINS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Polk County

No. 07-023 Carroll Ross, Judge

No. E2007-02627-CCA-R3-PC - Filed September 3, 2008

The petitioner, Michael Derrick Huskins, appeals from the denial of his petition for post-conviction

relief wherein he challenged his 2006 Polk County Criminal Court conviction of felony murder. In

this appeal, the petitioner contends that his guilty plea was involuntary and was the result of the

ineffective assistance of his trial counsel. Discerning no error, we affirm the judgment of the postconviction court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

Kenneth Miller, Cleveland, Tennessee, for the appellant, Michael Derrick Huskins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;

and Brian Chapuran, District Attorney General pro tem, for the appellee, State of Tennessee.

OPINION

On January 26, 2006, the defendant entered pleas of guilty to felony murder and

aggravated burglary in relation to the death of the victim, Alicia Gale Burger. The State provided

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the following factual summary during the entry of the guilty pleas:

On the date alleged in the indictment, this defendant was observed

going into the home of the victim by two county employees. They

were familiar with him and knew who he was. They observed him

enter the residence shortly before the victim in this case arrived at that

residence. The victim arrived and the same county employees

observed . . . the victim going into the residence, and then they went
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back to their work. They were working on a roadway above the

house where this occurred. These same two workers then observed

this defendant leave that residence sometime later. Law enforcement

was called when . . . the body of the victim was discovered by her

father. Investigation subsequently centered on this defendant, and

upon taking him into custody, and upon doing an inventory of him

and doing testing on his articles of clothing, the blood of the victim

was found on his underwear. Additionally, there is a previous history

between this family and the defendant. He was married to the sister

of the victim. The defendant was taken into custody and certain

statements were elicited from him that while not admitting to crimes,

certainly made admissions that were damaging to any other defense

that he might have.

At the post-conviction hearing, lead trial counsel recalled that the victim had been strangled, stabbed

three times, beaten, shot five times, and her throat had been cut. He also remembered that “the

deceased’s car door was left open and a small child was left in there.”

On January 18, 2007, the petitioner filed a petition for post-conviction relief alleging

that his felony murder guilty plea was not knowingly, voluntarily, and intelligently entered and that

he was denied the effective assistance of counsel. After the appointment of counsel and the filing

of an amended petition, the post-conviction court held an evidentiary hearing on September 14,

2007.

In the hearing, the petitioner testified that he had been charged with both premeditated

and felony murder in relation to the victim’s death and that the State had filed a notice seeking the

death penalty. The petitioner claimed that lead trial counsel met with him only “three or four times”

and that co-counsel met with him “one more time than [lead counsel].” He asserted that neither lead

counsel nor co-counsel would discuss defense strategy, and instead they focused their efforts at

getting him to plead guilty to the charges. The petitioner also claimed that he informed his trial

counsel of various infirmities with his pretrial statement to the police but that counsel insisted that

the information was “irrelevant.” He claimed that his counsel told him “there was no way [he] could

be found innocent, that [he] was going to death row[,] and that [he] would never get to see his family

again if [he] didn’t sign those papers.”

The petitioner insisted that he did not want to plead guilty and conceded to do so only

after his counsel informed him that if he “got found guilty and got sent to death row, [he would]

never be able to see [his] family again, which is a lie.” The petitioner also contended that co-counsel

told him “that a post-conviction relief was better than an appeal.” He also testified that co-counsel

“brought a psychiatrist to talk [him] into pleading guilty.” He claimed that although his trial counsel

arranged for a mental health evaluation, “they told [him] not to answer any of their questions about

[his] case or anything like that. And then whenever [the] evaluation came back, it said that [he]

wasn’t being truthful.”
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The petitioner also contended that even though he knew that the plea agreement

provided for a sentence of life without parole, he believed that he would be eligible for parole after

serving 32 years’ incarceration. He claimed that his trial counsel told him that “a life sentence is 32

years.”

During cross-examination, the petitioner acknowledged telling the trial judge that he

had not been threatened to enter his guilty plea but stated that he was “tricked into pleading guilty.”

The petitioner stated that the only reason he agreed to plead guilty was his desire to maintain

visitation with his family. He denied that co-counsel had told him that he would be able to have “no

contact” visitation with his family should he be sentenced to death. Although he specifically recalled

telling the trial court that the visitation issue prompted his guilty plea, the petitioner exhibited only

a spotty recollection of the remainder of the hearing, claiming that he could not recall telling the

court that he was satisfied by the performance of his attorneys. The petitioner conceded that all the

plea documents provided for a sentence of life without parole.

The petitioner’s mother, Theresa Abercrombie, testified that she spoke with the

petitioner’s counsel on several occasions and claimed that “[f]rom the very beginning, they were

wanting [her] to get [the petitioner] to go with a guilty plea.” Ms. Abercrombie stated that counsel

lied to her about statements provided by mitigation witnesses and that they refused to investigate the

petitioner’s drug addiction as a mitigating factor. She testified that trial counsel informed her that

the petitioner’s mental state at the time of the murder “didn’t matter.” She claimed that trial counsel

“always just like, assumed like he was guilty and that [pleading guilty] was the best way to go.”

Lead counsel testified that prior to being appointed to represent the petitioner, he had

handled 43 homicide cases. He stated that he was appointed to represent the petitioner in the general

sessions court and that he asked that the preliminary hearing be postponed until a mental health

evaluation could be completed. The evaluation “indicated that [the petitioner] was competent to

stand trial” and that a defense ofinsanity could not be supported. After learning that the State would

likely seek the death penalty, lead counsel contacted co-counsel to assist him in the handling of the

case and specifically with the gathering of mitigation evidence. Lead counsel stated that although

he had some concerns about the petitioner’s mental health, he never believed that the petitioner was

incapable of understanding the proceedings. He stated that the petitioner “knew exactly what was

going on, because he would get irritated at me when I would sit down and go over the case with

him.” Lead counsel also stated that he met with the petitioner at least “a dozen times . . . in the jail

here in Polk County and the other jail where he was.” With regard to the petitioner’s entering his

guilty plea, lead counsel testified that he was “confident [the petitioner] knew exactly what he was

doing.”

Lead counsel testified that in addition to seeking the services of co-counsel, he

utilized the services of an investigator, who interviewed fact witnesses. Lead counsel stated that he

apprized the petitioner of the status of his investigation on numerous occasions. Lead counsel

recalled that the petitioner admitted murdering the victim, explaining to them that he had “lost

control” and demonstrating how he had shot the victim. He also recalled that the petitioner claimed

he had asked for and been denied an attorney during his interrogation. Based upon this claim, lead

counsel prepared a motion to suppress the statement but did not file it due to the petitioner’s decision
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to plead guilty, which “put a halt to doing much else.” Lead counsel denied that Ms. Abercrombie

told him she felt threatened by officers who asked to search her house. He stated that he

remembered her say “that she gave them a consent to search because she didn’t have anything to

hide.”

Regarding the petitioner’s demeanor at the guilty plea submission hearing, lead

counsel stated, “I guess you had to work with [the petitioner] for three yearsto realize how he would

try to manipulate things that really weren’t necessarily important, but in his mind were.” Lead trial

counsel stated that he believed that it was in the petitioner’s best interest to enter the guilty plea. He

testified that he “felt like that the government had a very good felony murder case, and . . . think

there were some enhancing factors, particularly the way the body was . . . dealt with in killing her,

all the different stab wounds and shot wounds, that there was certainly enough there that had a jury

wanted to give him the death penalty, they could have.” Lead counsel stated that none of the

petitioner’s statements during the plea submission hearing gave him pause because he had no “doubt

that [the petitioner] understood and was giving up his rights.” Lead counsel testified that, even at

the time of the plea submission hearing, he anticipated that the petitioner would file a petition for

post-conviction relief.

Co-counsel, who testified that she had been practicing law for more than 19 years,

recalled that lead counsel contacted her prior to the State’s filing the death notice because he

anticipated that one would be filed and he wanted her to begin preparing mitigation evidence. She

stated that they “were looking at potential items regarding mitigation and [the petitioner’s] mental

health.” She testified that they hired Doctor Robert Brown, a neuropsychologist, to assist them in

their effort to address the potential mental health issues. During the investigation, she obtained the

petitioner’s mental health records and Doctor Brown administered further tests to the defendant. Cocounsel testified that after a mental evaluation and thorough review of the petitioner’s mental health

records with Doctor Brown, counsel concluded that the petitioner was competent and fully

understood the proceedings. 

Regarding the petitioner’s decision to plead guilty, co-counsel recalled that she

approached the petitioner in October 2005 with the State’s offer and asked whether “he would be

amenable to it.” She testified that she “read each one of [the plea documents] to him and asked him

if he understood, made sure he didn’t have any questions at that time.” Co-counsel stated that the

petitioner was “agreeable to a plea” and signed the plea documents in October. A delay occurred

when the State requested more time to discuss the agreement with the victim’s family. After the

victim’s family expressed satisfaction with the agreement, a date was set for the plea submission

hearing. Co-counsel denied that Doctor Brown accompanied her during the October visit, saying,

“He just went with us one time, and that was at my request, to meet with [the petitioner], and that

actually was on January the 18th, 2006, in Blount County at the Blount County jail.” Co-counsel

testified that she asked Doctor Brown to accompany her in January because “he had a good rapport

with [the petitioner]” and because the petitioner “had tended to manipulate some of the situations

with us [and she] wanted to make sure that there was absolutely no question that he understood what

was going on.” During the January visit, she again covered the plea documents “line by line” with

the petitioner. She stated that Doctor Brown also attended the plea submission hearing for the same

reasons. She stated she had no concern that the petitioner did not understand the consequences of
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his guilty plea, explaining, “He knew and he could ask us questions about things, and he could verse

those questions. He did come across as manipulative in situations when we would meet with him.”

Co-counsel testified that she was unaware of any potential literacy issue because the petitioner

“could comprehend and read” discovery materials and later discuss them with counsel.

Co-counsel recalled that in addition to the mental health issues, she and lead counsel

discussed the fact issues with the petitioner and interviewed a number of potential fact and

mitigation witnesses. As a result of these interviews, co-counsel felt that it was “quite possible” the

petitioner would be convicted and sentenced to death for the victim’s murder. She stated that the

petitioner’s history of “extensive drug use,” his prior violent outbursts, and the violent nature of the

crime led her to this opinion. She recalled that one particular potential mitigation witness

remembered the petitioner’s saying that he “wanted to kill someone, that he was going to kill.” She

stated that she “just really had a hard time finding people to say good things” about the petitioner.

Co-counsel recalled that she discussed visitation with the petitioner because he

“wanted to make sure that he continued to get to see his family.” She stated that she contrasted the

visitation rules for death row inmates with those in the general population but nevertheless assured

the petitioner that “he would be able to have visits at both . . . they would just be different.” She

insisted that she never told the petitioner that he would be unable to see his family if he received a

sentence of death. She stated that on the day of the entry of the plea, she discussed the proceeding

with the petitioner and his mother for at least half an hour prior to the hearing. She recalled that

during that time, the issue of visitation “never came up . . . . That was . . . why [she] was kind of

shocked when we got out in front of the Judge that he even mentioned it, because he hadn’t brought

that up.” Co-counsel also testified that she informed the petitioner “on more than one occasion” that

a sentence of life without parole “meant he would absolutely be in there the rest of his life.” At no

point did the petitioner ever indicate to her that he thought he would be released after serving any

number of years.

During cross-examination, co-counsel stated that lead counsel did not accompany her

during the October visit with the petitioner because “a conflict” had arisen between the two men.

She explained that lead counsel had decided to focus his attention on trial preparation while she

attempted to “salvage the plea.” She stated that she thought the strategy was appropriate given the

petitioner’s tendency to “try[] to manipulate situations.” She testified that she reviewed the plea

documents with the petitioner in January because of the time delay and because she wanted to

explain that the victim’s family had consented to the plea and that the theft charge would be

dismissed. She stated that she did not feel it was necessary to explain the visitation protocol to the

petitioner during the plea submission hearing because she had already done so and believed that “this

was just one of [the petitioner’s] ways of manipulating the plea.”

At the conclusion of the hearing, the post-conviction court, in a written order detailing

its factual findings and legal conclusions, held that the petitioner “has not presented any evidence

that would sustain his Petition of Post Conviction Relief, and the same is hereby dismissed.” The

court found that the petitioner “knew what his rights were and what charges he was pleading to.”

The post-conviction court determined that although the petitioner had, in fact, expressed concern

about being able to visit his family, his concerns had been alleviated during the course of the plea
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submission hearing. The court concluded that the petitioner chose the “less severe of two bad

choices” but there was simply “no proof that the Petitioner’s plea was anything other than

‘voluntarily and knowingly’ made.” The post-conviction court accredited the testimony of trial

counsel that they had thoroughly investigated the case, including any potential mental health

defenses, “and, once those evaluations showed that no insanity defense could be supported, they

engaged in plea negotiations in an effort to obtain the best possible deal for their client.” The postconviction court found that the “[p]roof against the [petitioner] was not only overwhelming but also

of such a nature, because of the excessively brutal nature of the killing, that certain enhancement

factors could easily have been found by the jury to support the death penalty.” The court concluded

that the petitioner “offered no evidence at his hearing that would support his contention” that his

guilty plea was the product of the ineffective assistance of counsel.

In this appeal, the petitioner challenges the post-conviction court’s ruling, contending

that his guilty plea was not knowingly and voluntarily entered because he was denied the effective

assistance of counsel. The State contends that the petitioner has failed to establish his claims by

clear and convincing evidence.

The post-conviction petitioner bears the burden of proving his or her allegations by

clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court

accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these findings

are conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960

S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

By contrast, the post-conviction court’s conclusions of law receive no deference or presumption of

correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

I. Voluntariness of Plea

The petitioner first argues that his guilty plea was not voluntarily entered because he

did not understand that he would be allowed to visit with his family even if he received a death

sentence and that a sentence of life without parole did not provide for parole at any time.

Due process demands that a guilty plea be entered voluntarily, knowingly, and

understandingly. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1711 (1969).

“[T]he core requirement of Boykin is ‘that no guilty plea be accepted without an affirmative showing

that it was intelligent and voluntary.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)

(quoting Fontaine v. United States, 526 F.2d 514, 516 (6th Cir. 1975)). The plea must represent a

“voluntary and intelligent choice among the alternative courses of action open to the defendant.”

North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). A plea is involuntary if the

accused is incompetent or “if it is the product of ‘ignorance, incomprehension, coercion, terror,

inducements, [or] subtle or blatant threats.’” Blankenship, 858 S.W.2d at 904 (quoting Boykin, 395

U.S. at 242-43, 89 S. Ct. at 1712).

The Boykin requirement that guilty pleas be knowing and voluntary may stand

independently of the claim that an unknowing or involuntary guilty plea is the result of ineffective

assistance of counsel. Boykin, 395 U.S. at 241, 89 S. Ct. at 1711. The constitution requires that, to
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satisfy due process, the trial court must inform the guilty-pleading defendant of his rights to avoid

self- incrimination, to confront witnesses, and to be tried by a jury. However, “a guilty plea is not

rendered constitutionally infirm because a criminal defendant is not informed about ‘the details of

his parole eligibility, including the possibility of being ineligible for parole.’” Alan Dale Bailey v.

State, No. M2001-01018-CCA-R3-PC (Tenn. Crim. App., Nashville, Feb. 8, 2002), perm. app.

granted (May 28, 2002), voluntary dismissal granted (July 11, 2002) (quoting Rickey Sams v. State,

No. 03C01-9511-CC-00368, slip op. at 5 (Tenn. Crim. App., Knoxville, Nov. 14, 1996)). In this

case, the petitioner’s claims regarding visitation privileges and parole eligibility status are not

constitution-based claims and, as a result, would not be cognizable in a post-conviction proceeding.

See T.C.A. § 40-30-103 (2006) (“Relief under this part shall be granted when the conviction or

sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution

of Tennessee or the Constitution of the United States.”).

II. Ineffective Assistance of Counsel

The petitioner also contends that his guilty plea was not voluntary because it was the

product of ineffective assistance of counsel. Specifically, he contends that his counsel failed to

adequately investigate the case, failed to advise him of available defenses, and misinformed him

regarding the visitation privileges on death row and the unavailability of parole in a sentence of life

without parole.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, he must first establish that the services rendered or the advice given were below “the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the

defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to

render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the

trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either

factor, he is not entitled to relief. Our supreme court described the standard of review as follows:

Because a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any particular

order or even address both if the defendant makes an insufficient

showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffective assistance of counsel, the petitioner is not entitled to the

benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a

sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v.

State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of
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counsel, however, applies only if the choices are made after adequate preparation for the case.

Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Claims of ineffective assistance of counsel are regarded as mixed questions of law

and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,

461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual

findings, our review is de novo, and the post-conviction court’s conclusions of law are given no

presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v.

England, 19 S.W.3d 762, 766 (Tenn. 2000).

In our assessment, the petitioner has failed to establish that his trial counsel performed

deficiently. Although the petitioner testified that his trial counsel misinformed him regarding

visitation privileges and his eligibility for parole, both lead counsel and co-counsel denied providing

incorrect information and the post-conviction court accredited this testimony. The post-conviction

court also accredited the testimony of trial counsel that they thoroughly investigated the facts and

circumstances of the case and the availability of mitigation proof. The post-conviction court shared

the opinion of trial counsel that a conviction and sentence of death were very real possibilities in the

petitioner’s case. In addition, the record supports the finding of the trial court that the petitioner

“knew what his rights were and what charges he was pleading to.” The plea documents, signed

twice by the petitioner, detail the charges, potential sentences, and rights available to the petitioner

as well as the details of the plea agreement, including the sentence of life without parole. At the plea

submission hearing, the trial court clearly outlined those rights the petitioner was giving up by

entering his plea and the sentence that would be imposed as a result of the plea.

Accordingly, the judgment of the post-conviction court is affirmed.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE