IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 12, 2022

DARRYL CLAXTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 13-02927 Chris Craft, Judge

No. W2021-01240-CCA-R3-PC

The petitioner, Darryl Claxton, appeals the denial of his petition for post-conviction relief, 

which petition challenged his 2015 Shelby County Criminal Court Jury conviction of first 

degree murder, arguing that he was deprived of the effective assistance of counsel at trial. 

Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and JOHN W. CAMPBELL, SR., JJ., joined.

Sharon Morales, Memphis, Tennessee, for the appellant, Darryl Claxton.

Herbert H. Slatery III, Attorney General and Reporter; Kayleigh Butterfield, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

On March 27, 2015, a Shelby County Criminal Court Jury convicted the 

petitioner of first degree murder for the shooting death of the victim, Terry Johnson, on 

November 14, 2012. This court summarized the evidence in our analysis of the sufficiency 

of the convicting evidence:

Viewing the evidence in a light most favorable to the 

State in this case, we conclude that there was sufficient 

evidence for the jury to find that the [petitioner] acted with 

premeditation. About an hour before the shooting, Ms. Milam 

overheard the [petitioner] speaking with Mr. Shaw and others 

about killing someone for money. Ms. Milam and Ms. Webb 

07/14/2022
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testified that the [petitioner] left Ms. Milam’s apartment 

several minutes before the victim. The [petitioner] was in the 

breezeway when the victim left the apartment, and the shooting 

happened immediately after Ms. Milam closed her apartment 

door. Before he shot the victim, the [petitioner] said[,]

“[D]on’t say s* * * else to me, on the FAM[,]” and “I been [sic] 

[killing] motherf* * * * *s.” Additionally, there is nothing in 

the record to indicate that the victim was armed; the [petitioner]

ran from the scene of the shooting, disposed of the murder 

weapon immediately after the shooting, and it was never 

recovered; and the [petitioner] surrendered himself to the 

Greenbriar Apartments security guards within minutes of the 

shooting. . . .

. . . .

In this case, three eyewitnesses, Mr. Peete, Ms. Webb, 

and Ms. Malone, saw the [petitioner] shoot the victim multiple 

times. Ms. Webb was standing mere feet from the victim when 

he was shot, and she testified that there was “no doubt in [her] 

mind” that the [petitioner] was the shooter. Further, Ms. Webb 

and Ms. Malone identified the [petitioner] as the shooter in a 

photo lineup within hours of the offense. Ms. Milam also 

overheard the [petitioner] speaking with others about the 

possibility of killing someone for money. . . .

State v. Darryl Claxton, No. W2015-00885-CCA-R3-CD, 2016 WL 1615648, at *7-8 

(Tenn. Crim. App., Jackson, Apr. 20, 2016) (seventh through tenth alterations in original).

Our supreme court denied the petitioner’s application for permission to 

appeal on September 23, 2016, and, in April 2017, the pro se petitioner filed a timely 

petition for post-conviction relief, alleging, among other things, that he was deprived of 

the effective assistance of counsel at trial. Following the appointment of counsel, the 

petitioner filed two amendments to his petition for post-conviction relief that further 

refined his claims of ineffective assistance of counsel.

At the evidentiary hearing, the petitioner testified, as is relevant to this 

appeal, that he met trial counsel in court but “not often” and that trial counsel visited him 

at the jail only two times during the time his case was pending in the trial court. He could 

not recall whether an investigator worked on his case. The petitioner said that he and trial 

counsel did “not often” speak about the case and that he did not ever discuss the facts of 
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the case with counsel. The petitioner testified that he did not ask his counsel any questions 

about the case and that he could not recall whether he had received the discovery materials 

in his case.

The petitioner maintained that trial counsel “took advantage of him” when 

she told him that he “cannot take the stand for my first time” because “I had a history of 

some robbery charges.” He said that counsel “told me the wrong things” that prevented 

him from taking “the stand to give them my point of view.” The petitioner claimed that 

the robbery charges at issue had been dismissed before his trial in this case. He said that 

he “tried to” tell trial counsel that he wanted to testify, but trial counsel advised him not to 

testify. He insisted that his decision not to testify was based solely on counsel’s advice 

that he not do so. He claimed that his testimony “might have been different for the jury to 

probably know a better picture.” The petitioner said that he attended special education 

classes in school and that he “notified” trial counsel of his learning difficulties, “but she --

some things she didn’t want to hear. She ignored it.” He said that his testimony at trial 

would have touched on these issues.

The petitioner testified that he asked trial counsel about forensic testing of 

the clothing he was arrested in given that he was arrested shortly after the shooting. He 

said that trial counsel told him, “It doesn’t matter.” He maintained that forensic testing 

would have made a difference in his case.

During cross-examination, the petitioner admitted that he had previously 

been convicted of misdemeanor drug offenses in the general sessions court but claimed 

that trial counsel did not explain that those offenses could have been used to impeach him 

had he elected to testify. The petitioner insisted that trial counsel did not tell him she would 

have been required to disclose to the State the results of forensic testing on his clothing.

Trial counsel testified that after she was appointed to represent the petitioner, 

she met with him 15 times at the jail and seven times “in lockup” when he was awaiting a 

court appearance. She said that the two discussed the facts of the case and that she 

“provided him not one but two copies of discovery, because he lost his first copy.” She 

said that they “went through that discovery,” discussing each of the potential witnesses for 

the State as well as any potential defense witnesses. She procured the services of an 

investigator who went with her to visit the petitioner at the jail.

Trial counsel testified that she “[a]bsolutely” told the petitioner that he would 

be sentenced to life if convicted at trial. She said that she provided him the statutory 

definitions of each of the homicide offenses and explained the potential sentences for each 

just before the trial. She also discussed the petitioner’s mental limitations prior to trial and 

even “had a psychologist appointed.” Trial counsel accompanied the psychologist “on the 
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first [visit] to introduce them so that he knew who she was, that she was part of the defense 

team.” On the “second or third visit,” however, the petitioner “acted like he had never met 

her. He didn’t know if the sky was purple or was black or anything.” Ultimately, the 

psychologist determined “that he was feigning intellectual limitations, and that she could, 

in fact, not complete her testing, because he was presenting as though he were so limited.” 

Because of the petitioner’s actions, counsel “was not in a position to pursue those 

intellectual limitations.” Counsel concluded that the petitioner “frankly, was playing 

games, and thought that, well, I am going to make this report look really good as though 

he presented that he was a drooling idiot, which he is not.” She recalled that the petitioner’s 

mother agreed “that he may, in fact, be playing games with the psychology aspect of our 

investigation.”

Trial counsel testified that she discussed with the petitioner his right to testify 

at trial. She added that she “had an opinion about it, and I have concerns that [the 

petitioner] may not have benefited his own case,” but maintained that she “did not tell [the 

petitioner] to testify or not to testify.” Instead, she said that she would have likely given 

him her opinion that he should not testify because “he would have been very easily led 

around by” his “tendency to get stuck on little things” during “cross-examination not to his 

benefit.” Trial counsel testified that she would never have misinformed the petitioner about 

what part of his criminal record could have been used to impeach him had he elected to 

testify. She said that after having practiced criminal law for 28 years, she was “pretty 

confident that I identified prior convictions that would have qualified for impeachment and 

ones that did not, but I did not tell him he can’t testify.”

Trial counsel recalled that she and the petitioner “thoroughly discussed” 

having his clothing tested for gunshot residue. She said that the discovery materials 

indicated that the shooter had been wearing “a jacket that was taken off.” She did not 

pursue gunshot residue testing on the petitioner’s clothing because “[t]hat jacket would 

have had the residue on it, not [the petitioner’s] clothes.” She added, “So there was nothing 

for me to test.” Trial counsel, observing that the State had not performed gunshot residue 

testing, stated that she was concerned that “if the gun residue test established there was 

anything on [the petitioner’s] clothes, that just further puts him on the scene and standing 

there with the gun.” Counsel maintained that gunshot residue testing “could not have 

helped him, it would have hurt.”

During cross-examination by the State, trial counsel testified that she had 

handled 20 to 30 major felony cases, including a number of murder cases and some capital 

cases, during her more than 20-year career. Trial counsel said that, in lieu of seeking 

gunshot residue testing on the petitioner’s clothing, which might have inadvertently 

bolstered the State’s case, she elected to challenge the State’s failure to conduct gunshot 

residue testing “in an effort to show that this was shoddy investigation by law 
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enforcement.” She added, “Strategically it was better to be in a position . . . to attack the 

lack of the investigation and how they pursued their investigation and why they failed to 

conduct the gun residue testing.”

At the conclusion of the hearing, the post-conviction court took the matter 

under advisement. The post-conviction court later denied post-conviction relief in a written 

order. In the order, the post-conviction court found “the petitioner’s testimony to have 

been less than credible,” observing that during his testimony at the evidentiary hearing, the 

petitioner “flatly contradicted himself[] and failed to remember basic facts about the 

preparation of his case.” In contrast, the court found “the testimony of his attorney, a highly 

accomplished defense attorney who has tried multiple [m]urder [f]irst [d]egree cases, to be 

very credible.” As to the petitioner’s claim that trial counsel misled him about the potential 

that he could be impeached by his prior convictions, the post-conviction court accredited 

counsel’s testimony that “she and the petitioner discussed his right to testify on more than 

one occasion, and she told him it was his decision alone as to whether or not he wished to 

testify.” The court also accredited counsel’s testimony that she would have been concerned 

about the potential for the petitioner to be “very easily led around . . . on crossexamination.” The post-conviction court noted that the petitioner testified during the 

Momon colloquy that he was aware that he had a constitutional right to testify at trial and 

that he had personally elected not to do so. With regard to the petitioner’s claim that trial 

counsel performed deficiently by failing to pursue gunshot residue testing of his clothing, 

the post-conviction court determined that counsel’s decision to forego testing was a sound 

strategic decision made after adequate preparation. The post-conviction court also 

observed that the petitioner had failed to prove that he was prejudiced by counsel’s decision 

because “no attempt was made to test the petitioner’s clothes during the pendency of this 

petition” and “no proof was offered at the hearing on this petition that any testing of the 

clothes would have resulted in anything exculpatory.”

In this timely appeal, the petitioner asserts that the post-conviction court 

erred by denying relief, reiterating his claims that trial counsel “failed to properly advise” 

the petitioner “about his right to testify” and that counsel performed deficiently by failing 

to seek gunshot residue testing of the clothing he was wearing at the time of his arrest. The 

State contends that the court did not err.

We view the petitioner’s claim with a few well-settled principles in mind. 

Post-conviction relief is available only “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.” T.C.A. § 40-30-103. A post-conviction petitioner bears 

the burden of proving his or her factual allegations by clear and convincing evidence. Id.

§ 40-30-110(f). 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 
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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).

Before a petitioner will be granted post-conviction relief based upon a claim 

of ineffective assistance of counsel, the record must affirmatively establish, via facts 

clearly and convincingly established by the petitioner, that “the advice given, or the 

services rendered by the attorney, are [not] within the range of competence demanded of 

attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and 

that counsel’s deficient performance “actually had an adverse effect on the defense,” 

Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must 

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the 

petitioner fail to establish either deficient performance or prejudice, he is not entitled to 

relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

. . . that course should be followed.” Strickland, 466 U.S. at 697.

The petitioner first asserts that trial counsel performed deficiently when 

advising him about the right to testify, claiming that he declined the opportunity to testify 

solely based on trial counsel’s erroneous advice that the State would be permitted to 

impeach him with his criminal history if he did so. Trial counsel’s accredited testimony, 

however, belies the petitioner’s claim that she misadvised him with regard to the State’s 

potential use of his criminal record. Instead, counsel testified that she communicated her 

opinion that the petitioner ought not testify, which was based upon her concern that the 

petitioner would not hold up well under cross-examination, but that she told the petitioner 

that the decision whether to testify was his alone to make. At the Momon colloquy, the 

petitioner testified that he had elected to “plead the 5th” after having thoroughly discussed 

his right to testify with trial counsel. Moreover, when given the opportunity at the 

evidentiary hearing, the petitioner did not indicate what his trial testimony would have 

been. Although he said that he believed the jury should have heard his “side of the story,” 

he did not offer his side of the story at the evidentiary hearing. We cannot evaluate the 

impact of this absent testimony on the proof that was adduced at trial and, consequently, 

cannot conclude that there was a reasonable probability that the petitioner’s testimony 

would have changed the outcome of the trial.

The petitioner also claims that trial counsel performed deficiently by failing 

to request gunshot residue testing of the clothing he was wearing at the time of his arrest. 

Counsel’s accredited testimony established that she did not ask for gunshot residue testing 
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because she did not believe that gunshot residue testing of the clothing the petitioner was 

wearing would have yielded any useful results because other evidence established that the 

shooter was wearing a jacket that was later discarded. She also stated that she was 

concerned that gunshot residue testing might actually further implicate the petitioner by 

definitively placing the petitioner at the scene “with a gun in his hand.” Instead, counsel 

chose to attack the lack of gunshot residue testing as part of her broader attack on the 

quality of the police investigation. Counsel’s tactical decision, made after considerable 

thought and preparation, was a reasonable trial strategy. Additionally, the petitioner did 

not produce any evidence at the evidentiary hearing to establish that gunshot residue testing 

of his clothing would have yielded exculpatory evidence.

Because the record supports the denial of post-conviction relief, the judgment 

of the post-conviction court is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE