# FILED
March 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1997 SESSION
CHARLES E. DORSE, JR. ) and EDDIE L. WILLIA MS, ) NO. 02C01-9706-CR-00205

) Appellants, ) SHELBY COUNTY ) VS. ) HON. CHRIS CRAFT, ) JUDGE STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee. )

FOR APPELLA

NT DORSE : C. ANNE TIPT

ON 140 North Third Street Memphis, TN 38103-2007 FOR APPELLANT WILLIA MS : JIM N. HALE (At Hearing) 147 Jefferson Avenue, Suite 1204 Memphis, TN 38103 GERALD STA

NLEY GREEN (On Appeal) 147 Jefferson Avenue, Suite 1115 Memphis, TN 38103 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DEBORAH A

. TULLIS Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General DANIEL R. WOODY Assistant

District Attorney

General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

DORSE - AFF IRMED IN PAR T; DELAYED A

PPEAL GRA

NTED WILLIAMS - A

FFIRMED
JERRY L. SMITH, JUDGE2 OPINION

The petitioners, Charles E. Dorse, Jr. and Eddie L. Williams, appeal the order of the Shelby County Criminal Court denying theirrespe ctive petitions for postconviction relief after

an evidentiary hearin g. On appeal, pet itioners allege ineffe ctive assistance of both trial and appellate counse l. Dorse further argues that , at trial, the jury w

as charged withan unconstitutional reasonable doubt instruction. Williams presents threeadditional issues: (1) whether the original trial court properly refused to suppress his statement to the police; (2) whether the original trial court properly refused to sever the defendants; and (3) whether the post-co nviction court properly consolidated the subject petitions atthe hearing. Because w e agree with the trial court’s finding that Dors e’s trial c ounsel failed to notify him of his right to seek second ti er appell ate review, we grant him the right to seek a delayed appeal to the Tennessee Supreme Court. In all other respect s, t he judgment of the trial court is affirmed.

FACTUAL BA CKGROUND

A. Trial The petitioners were convicted after a jury trial of first degree murder in the perpetration of a robbery. Both wer e senten ced to l ife impriso nment. Their convictions

were affirmed by this Co urt. Sta te v. Charles Edwar d Dorse, Jr. and Eddie Louis Willi ams , C.C.A. No. 02C01-9103-C R-00023, Shelby County (Tenn. Crim. App. filed April 1, 1992, at Jackson). We will recite the facts as set out by this Court on direct appeal:

On May 7, 1988, at approxi mately 4:15 a.m., the victi m w as shot by the defendant Dorse. The undisput ed proof was that the victim had been in a grocery s tore and was returning to h is vehicle when he was appr oached b y the def endants. After entering his v ehic le from the driver's side,he was required to s lide across to the passenger

side while the defendant Williams got i n the driver's seat and the defendant Dorse got in the ba ck seat. T wo witnesses in a parked vehicle then saw the d e fendan t Dorse fire a shot into the victim's head but did not see any scuffle3 prior to the firing of the pistol. At this point these witnesses observ ed the two defendants exit the v ehicle and ru n from the scene. Prior to hearing the gunshot one of these witnesses had also s een the defendant Dorse strike the v ictim in the head. In addition, the mother of the two w itnesses recalledseeing the defendants standing outside the grocery store when she had entered the store. All three wi

tnesses identified the defendant Dors e from pretrial photographic displays and at trial. One witness also positively iden tifi ed the defendant Williams from a pretrial photographic array and at trial. Having been call ed by t he S tate, a friend of the defendants testified that the defend ants had borrowed t wo pistols from him, one of which had not ha d am munition. He further testified that they had returned these pistols on the follow ing morning and that

the defendant Dorse had admitted to him that they had killed someone. In addition, redacted vers ions of the defendants' statements given to an officer with the Memphis Police Department were read at the trial. In his statement the defendant Dorse admitted that he was going to take the victim's aut omobile . He further acknowledg ed shooting the victim with a .22 caliber revolv er but stated that thepistol had discharged after the vi ctim had grabbed for it. The defendant Williams admitted he had intended to r ob the vi ctim of h is money. Williams also stated that he hadpulled the unloaded weapon on the vic tim and forced him into the vehicl e. He added that after he ha d entered on the driver's side, the victim had gr abbed for his pistol. Testifying in his own behalf, the defendant Dorse's version of the events had changedsomewhat from his original statement to the officers. At trial he denied havi ng known that a robbery had be e n about to take place and claimed that he had shot the victim when he had observed the victi m grabbing for the defe ndant Williams' pistol. His confusing explanation for hi s previous contradict ory stat e ment was that he had not wanted his mother to know that

he had just shot the man but rather that the shooting was part of

an “accidental robbery”. State v. Ch arles Edw

ard Dorse, Jr. and Eddi e Louis Williams , slip op. at 2-4. B. Post-Conviction Hearing

(1) At the post-conviction hearing, Dorse testified that heonly ha d two “out-ofcourt visits” with

his trial counsel in p reparation for and throughout the course of the trial. He claimed t hat he a nd his attorney never talked about the facts and
c ircumsta nces of his case. He testified that his attorney did not thoroughly investigate, did not file any motions, and refused to in terview or present any witnesses

at the trial and suppression hearing. He further claimed that trial counsel did not inform him of the adverse dec ision of this Court affirming his conviction. D orse’s attorney, Martin Kri ger, testified at the hearin g as well. He sta te d4

that he talked with Dorse on numerous o ccasio ns and discussed with hi m the particular

facts of the case. He received full discovery from the state, including the
names of witnesses, the facts of the cas e and Dorse’s statement to the poli ce. He filed a motion to adop t the motions filed by Dors e’s co-defendant, which inc luded
a m otion to suppress his pre-trial statement to the police. He stated that Dorse
never expressed any complaint s concerning his repr

esentation. Although he testified that it was his practice to notify h is clients of any adver se decision from the Court of Criminal Appeals, h e had no recollection of doing so in this case. (2) Petitioner

Williams testified that he was repres ented at trial by Robert Jones of the Shelby County Publi c Defender’s office. He claimed that Jones discus sed his
case fully with him, but c onvinced him not to testify at the suppression hearing and at trial against his ow

n wishes. He claimed that his statement to th e police was involuntaryas it was illegally obtained. He also st ated that Jones did not contact potential defense witnesses in preparation for trial. He further claimed tha t his app ellate counsel, Mark Ward, did not discuss w ith him the issues that w ould b e raised on appeal. Trial counsel, Robert Jones, testifie d that he discussed the case fully with Williams, obtained discovery fr om the state, spoke with state’s witnesses, filed pretrial motions and had hearings on thos e motion s. He could not recall w hether Williams requested that he present witnesses in his defense. He also stated that Willi ams chos e not to te stify. Appellate counsel Mark Ward, also with the Public Defender’s office, testified that the only ap pellate iss ue which he considered hav ing possible merit w

as the sufficiency of the evidence. He further st ated that it was not his usual p ractice to confer with a defendant while preparing the appeal.
(3) The post-convic tion court made extensive findi ngs of fact and conclusions of law in separate, w ritten orders. Regar ding petitioner Dorse, the court found that1 The post-conviction court made other findings of fact and conclusions of law which

are germane to this appeal, including: (1) the reasonable doubt jury instruction given at trial was constitutional; (2) the trial court did not abuse its discretionin denying a severance of defendants;

(3) the trial court corr

ectly ref used to suppress bo

th petitioners’ sta

tements; and (4) Williams’ appellate attorney was not ineffective for failing to challenge the suppression rul ing a s th ere w as n o le gal f oun dat ion to c hal len ge th e st ate men t’s adm iss ibi lit y. 5 attorney Kriger w

as not deficient, nor did Dors e suffer any prejudice as a result of trial counsel’s representation.However, the tr ial court did find that Dors e did not recei ve effective notice of the adv erse decisi on from this C ourt. On William s ’ petition, the t rial court found that neither trial counsel nor appellate counsel was ineffe ctive in any of t he allege d instanc es. Moreo ve r, the trial court found that petitioner

Williams cou ld not demonstrate prejudice. Therefore, the trial court denied r elief. 1

POST-CONVICTION STA NDARD OF R EVIEW
The trial judge's findings of fact on post-conviction hearings are conclusi ve on appeal unless the evid ence pre ponderates otherwise. Butler v. State , 789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995). The trial court’s findings of fact are af forded the weight of a jury verdict, and this Court is bound by the trial c ourt’s findings unless th e evidence in the record preponderates aga inst those findings. Henley v. State , S.W.2d (Tenn. 1997); Dixon v. State , 934 S.W.2d 69, 72 (Tenn

. Crim. App. 1996). This Court may

not reweigh or reev

aluate the evidence, nor substitute its inferenc es for those drawn by the trial judge. Henley v. State , S.W.2d at ; Massey v. State , 929 S.W.2d 399, 403 (Tenn . Crim. App. 1996); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questio ns concerning the credib ility of witnesses

and the weight and value t

o be given

to their tes

timo ny are r esolved by the trial court, not this court. Henley v. State , S. W.2d at ; Black v. State , 794 S.W.2d at 755. The burden of establishing that th e evidence preponderates other wise is on petitioner. Henley v. State , S.W.2d at ; Black v. State , 794 S.W.2d at 755.6 INEFFECTIVE A

SSISTANCE OF C

OUNSEL

A. Standard o

f Review Both petitioners claim that they received ineffe ctive assistance of counsel at trial. This C ou rt reviews a cl aim of ineffective assistance of counse l under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975 ), and Stri ckland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The petitioner has the burden to prove that (1) the attorney’s performance was deficient, and ( 2) the deficient performance resulted in preju dice to t he defe ndant so as to depr ive him of a fair trial. S trickla nd v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064 ; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990). The test in Tennessee in determini n g whether co unsel pro vided eff ective assistance is whether counsel’s per formance waswithin the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d at 936. The petitioner

must ove rcome the presumption that counsel ’s conduct falls withi n the wide range of acceptable pr ofessional assistance. Stricklan d v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065; State v. Willia ms , 929 S.W.2d 385, 3 89 (Tenn. Crim. App. 1996). Therefore, in order t o prove a deficiency, a petitioner must show that counsel’s acts or omiss ions were so seriou s as to fall be low an obje ctive standard of reasonableness under prevai ling prof essional norms. Stricklan d v. Washington , 466 U.S. at 688, 104 S.Ct. at 2065 ; Henley v. State , S.W.2d at ; Goad v. State , 938 S.W.2d at 369. In reviewing couns

el's conduct, a “fair asses sment . . . requir es that every effort be made to eliminate the distorting effects of hindsight, to re construct the circumstances

of counsel's challenged conduc t, and to evaluate the conduct from counsel's perspective at the time.” Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065. The fact that a particular strategy or tacticfailed or hurt the defense, does not, stand ing alone, establish unreasonable representation. However, deference to matters of strategy and tactical choices applies only if the choices are7

inf ormed ones based upon adequate preparati on. Goad v. State , 938 S.W.2d a t 369; Hellard v. State , 629 S.W.2d 4, 9 (Tenn . 1982); Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). B. Dorse Dorse claims that he received ineffective assistance of cou nsel at trial. In this regar d, he co ntends that trial counsel failed to adequately prepare for trial, failed to properly investigate all possible witnesses for trial and the su ppres sion hearing, failed t o properly conduct discovery and failed to file necessary pr e-trial motions. He further argues that he r eceived ineffective assis tance of appellat e counsel in that his attorney fail ed to inform him of his right to seek second tier appella te review. (1) Failure to Prepare for Trial Dorse argues that trial counsel did not fully discuss the

circumstances of his
case. He testified that

he met with hi s attorney only twi ce outside of the courtroom

. He claimed that

his attorney never discussed a trialstrategy with him, reviewed his confession or discussed possible witnesses. Essential ly, he testified that he and his attorney never discussed anything meaningful. However, trial attorney

Kriger testified that

he researched and prepared for trial. He spoke with Dorse on numerous occasio ns, an d they had “extensive meetings” immediately prior to tr ial and during the trial. Although Dorse insis ted on testifying at trial, Kriger

attempted to develop a trial str ategy which w

ould attack the eyewitness testimony. Howev er, because Dorse admitted at t r ial that he was present during the crime, Kri ger was not a ble to de velop tha t strategy. The trial court specifical ly found Dorse’s testimony to be incredible. T he court further found that the trial record fully supported Kriger’s testimony and found
no evidence that Kriger was deficient. The evidence in the record before this Court does not preponderate against that finding. This allegati on is without merit.

(2) Failure to Inv

estigate Witnesses Next, Dorse claims that Krig er fail ed to properly inves tigate potential witnessesto be used at the suppression hear ing and at trial. He t

estified at th e2 Dorse’s mot her died pri or to the po st-convic tion heari ng. 8 post-convictionhearing that he was se venteen at the time of

his arrest. His mother
was present during the

police interview . Although she signed a w aiver allowing the police to interrogate her so n, Dorse c laims that she was addict ed to drugs at the time and did no t have the requisite mental state to surrender his right to remain silent. Because of thi s, Dorse cl aims that she had “vital information ” to offer, and his attorney was def icient in not call ing her to testif y at the suppressio n hearing. In support of this al legatio n Dorse’s first cousin, Denee Dorse Spencer, testified that she was aware of Dorse’s mother’s drug

addiction. 2 However, she w as not aware whether Dor se’s mother used drugs on that occasion. Nevertheless, even if this Court were to accept this allegation as true, Dorse has n ot demon strated that he was prej udiced. As the trial cour t correctly noted, “[e]ven if he could som ehow show that his m other was using drugs at the time of the statement, this would not pr ove that her consent, or hi s consent and waiver of his Mirandarights was not voluntary.” See State v. Lundy , 808 S.W.2d 444, 446 (Tenn. 1991). Dorse f ail ed to sho w that his co nfessio n was othe rwise involu ntary. Furthermore, Dorse has not shown what “vit al information”his mothe r could ha ve offered if she had been called to testify at t he suppress ion heari ng. Accord ingly, because Dorse has not demonstrated prejudice, this allegation must fail. Dorse also claims that Krig er did not contact other witnesses in preparation fortrial. Three witness es, as well as Spencer , tes tified at t he post-conviction hearing. Although they all claimed that Kriger did not contact t hem prior to trial,
none of these witnesses had first
- hand k nowledge of the crime. Do rse has not shown how

he was prejudiced by

the failure to contact these w itnesses. Therefore, this allegation is w

ithout merit. (3) Failure to Cond uct Discovery Dorse claims that his attorney failed to prop erly conduct disco very. Although he concedes that his attorney received discover

y from the state, he complains that the dis covery motion was not filed until the first day of trial. He argues that hi s attorney did not have enough time to properly review such d iscovery. However, he9

has failed to demonstrate how he was prejudiced by the alleged actions of his attorney. As such, this allegation has no merit. (4) Failure to File Pre-Trial Motions Dorse also asserts that trial counsel was ineffective i n failing to file necessary pre-trial motions. Pr ior to trial, Kriger fil ed a motion to adopt thepre-trial motions of the co-defendant, Williams. The post-convic tion court listed sev

enteen (17) motions

fi led by W illiams, including the motion to suppress his pre- trial statement to the police. The trial c ourt granted the r

equest to adopt the motions, and an evidentiary hearing was held on these motions. The post-conviction court found that Kriger was “completely prepared” to pre sent the motions and did an “excellent job.” This Co urt finds that Kriger w as not deficient in choosing to adopt the codefendant’s motions. Furthermore, Dorse has not proven that he was p rejud iced by this procedure. This allegation is without merit. (5) Failure to Notify In his final assertion of ineffective assistance of counsel, Dorse claims that his attorney on direct appeal did not inform him of the ad verse decision of this Court affirming his conviction

. Therefore, he was not able to seek seco nd tier appellate review by the TennesseeSupreme Court. The trial court found that Dorse should be granted a delayed appeal. We agree. Although Kriger testified that it was his usual practi ce to notify his clients of any adverse decisi on by the Court of Criminal Appeals, he had no specific recollection of doing s o in th is instance. Dorse testified that he learned of the adverse decision aft

er the time

had expired to apply for permission to appeal. When a defendan t is denied second tier appellate review through no fault of his own, he is entitled to a delay ed appeal. Pinkston v. State , 668 S.W.2d 676 , 67 7 (Tenn. Crim. App. 1984). We, therefore, grant Dorse the right to seek a delayed appeal t o th e Tennessee Supreme Court. We vacate our judgment of April 1, 1992, and reinstate it as of the date of the release of this opinion.10 C. Williams Williams argues that he receiv ed ineffective assistance of tri al and appellate counsel. He contends that trial co unsel was deficient in fail ing to demonstrate that Williams knowi ngly a nd volu ntarily chose not to te stify and by failing to

object to the testimony

of Dorse, his co-defendant. He claims that trial counsel wa s ineff ective in failing t o include “pertinent and meaning ful assignments of error” i n the motion fornew trial. He further claims that appellate counse l was i neff ective in failing to amend the motion for new trial in order to present “pertinent and meaningful issues” on appeal. (1) Trial Counsel Williams’ first complaint wit h t rial counsel is that tr ial counsel failed to demonstrate that W illiams wai ved his righ t to testi fy. At the post-conviction h earing, Williams claimed that he wanted to testify at both the suppression heari ng a nd at trial , but that h is attorney would not let him testify. Trial counsel, Robert Jones, testifi ed that W illiams m ade the d ecision n ot to test ify. Williams testified at the post-convi ction hearing that he wanted to explain to the jury that he onl y intended to r ob the vict im, but did no t intend to k

ill him. However, because petitioners wer e convicted of a reckless killing in the perpetration of a robbery, this testimony would have essential ly proven an element of the state’s
case. Because such testimony would have been extremely detriment al to the defens e, Wi lliams ca nnot pro ve prejudi ce by his fa ilure to te stify. Furthermore, the post-conviction court found that trial counsel’s advice not to testify was a sound tac tical choice, and Williams voluntarily chose no t to testi fy. Therefore, the trial c ourt fou nd no def iciency. The evidence does not preponderat e against this finding. Thi s allegation has no merit. Williams also claims that trial counsel sh ould hav e objected to his codefendant’s testimony

at trial and should have requested a jury-out hearing of this testimo ny. He bases this argument on the fact that his co-defendant implicated him during his trial testimony.However, Williams has not pro vided this Court with any
reason why this testimony should not be admissible. The fact that such testimony11

was “devastating” does not render it inadmissible. Therefore, his attorney cannot be deficient for failing to objec t. This allegation has no mer it. Williams further asserts that trial counsel was deficient for fail ing to alleg e “meaningful” an d important issues in the moti on for new trial, thereby failing to preserve such issu es for ap pellate review. However, Williamsfails to assert which issues he considers meaningful ones. Accordingly, he c annot demonstrate how he
was prejudiced by trial counsel’s failure to allege other issues in the motion for new trial. This allegati on is without merit. (2) Appellat

e Counsel Finally, Williams c ontend s that he was denied the effectiv e assistance of appellate counsel in that co u nsel only alleged in sufficiency of the evidence on appeal. It is counsel’s responsibil ity to d etermine the issues to present on appeal. State v. Matson , 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986). This responsibility address es itself to the professional judg ment and sound discretion of appellat e counsel. Porterfield v. State , 897 S.W.2d 672, 678 (Tenn . 1995) . There is no constitutional requireme nt that e ve r y conceivable issue be raised on appeal. Campbell v. State , 904 S.W.2d 594, 597 (Tenn. 1995). The determination of which issues to raise is a tac

tical or strategic choice. Id

. Appellate counsel, Mark Ward, testified that after reading the tec hnical record and the transcripts from the pre- trial hearing and trial, he determined that sufficiency of the evidence was the onl y reasonable issue that he could raise on appeal. The post-convictioncourt found “ no showing by petitioner of either deficient performance
or prejudice to petitioner in his appeal.” We agree. This allegation is w ithout merit.

REASONABLE DOUBT JURY I NSTRUCTION

Dorse also argues that the jury instruction given at trial on “reasonable doubt” is constitutionally infirm as it violat es due process. He contends that the jury instruction defining “reasonable doubt” violates due process of law by

lowering the3 Moreover, the Sixth C ircuit of the United States Court of Appeals agrees that the language used in this instruction is constitutional. See Austin v. Bell , 126 F.3d 843, 847 ( 6th Cir. 1997). 12 burden on the state to prove gui lt. Tennessee courts have c onsistently held that using the phrase “moral certaint y” in conjunctionwith an instruction that “reasonable doubt is that doubt engendered by an investigation of all the proof in the case and
an inability, after such investigation, to l et the mind rest easily as to the certainty of guilt”is a valid instruc

tion on reasonable doubt. Nichols v. State , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn v. State , 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994); State v. Hallock , 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993)

. 3 Th erefore, this issue is w ithout merit.

SUPPRESSION OF WILLIAMS’ STATEMENT

Williams argues that the original trial court erred in refusing to suppress his post-arrest statement to the police. This issue is w aive d as it should have been raised o n direct appeal. See Givens v. State , 702 S.W.2d 578, 580 (Tenn. Crim. App. 1985). Moreover, we do not fi nd that a ppellat e counse l was ineff ective for failing to raise this issue on direct appeal . Appellate counsel testified that he read the suppression hearing and found no constitutional impro pr iety regarding Williams’ confession to the police. This Court will not second gues s strategical or tac

tic al decisionsmade by counsel. See Hellard v . St ate , 629 S.W.2d at 9. Further, the post-convictioncourt found that there was no l eg al found ation upon which to challenge the statement. We agree. This issue is without merit.

SEVERANCE OF DEFENDANTS

Next, Willi ams argues that the origi nal trial court erred in failing to grant a13

severance of the defendants. Thi s issue is al so waived as it shou ld have been raised on direct appeal. See Givens v. State , 702 S.W.2d at 580. Furthermore, appellate counsel was not deficient for failing to raise the issue
on appeal as the issue has no merit. Althoug h the state introduced the confessions of both petitioners at trial, each of the statements w as redacted prior to trial , thereby eliminating any

confrontation issues pursuant t o Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See Tenn. R. Crim. P. 14(c)( 1). At trial the co-defenda nt testified, thereby eliminat ing the Bru ton problem. Furthermore, Williams has failed to demonstrate how severance was necessary “to promote a fair determination of [his] guilt or innocence.” Tenn. R. Crim. P. 14(c)(2)(i). This issue has no merit.

CONSOLIDATION OF PETITIONS

Willi ams argues that the post-conv iction court erred in c

onsolidating the hearings on the petition for post-conv ic tion relief. However, there is no indication in the record that either petitione r objecte d to consolidating the hear ings on the petitions. The issue is waived. See Tenn. R. App. P. 36 (a). Furt hermore, William s has not demonstrated how he was prejudiced by such cons olidation. See

Tenn. R. App. P. 3

6(b). Th erefore,he is entitled to no rel ief. This issue is without merit.

CONCLUSION

We find that both petitioners rece ived effective assistance of counsel at both the trial and appellate levels. However, because Dorse’s a t torney failed t o notify him of his right to seek secon d tier appellat e review, we grant him the rig ht to seek
a delayed appeal to the Tennessee Supr eme Court. Accordingly, we vacat e ou r judgmentof April 1, 1992, and rei n state it as of the date of the release of th is opinion. In all other res pects, the judgment of the trial court is affirmed.14 JERRY L. SMITH, JU DGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

CURWOOD WITT, JUDGE