FILED

September 30, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998

LARRY T. CARTER, ) C.C.A. NO. 01C01-9710-CR-00488

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. ANN LACY JOHNS

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT: FOR THE APPELLEE:

LARRY T. CARTER JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

TDOC #83297

Middle Tennessee Correctional LISA A. NAYLOR

Complex Assistant Attorney General

7177 Cockrill Bend-Industrial Road 425 Fifth Avenue North

Nashville, TN 37209-1005 Nashville, TN 37243-0493

VICTOR S. JOHNSON

District Attorney General

ROGER MOORE

Assistant District Attorney

Washington Square - Ste. 500

222-2nd Avenue N.

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

Appellant Larry T. Carter appeals the trial court's denial of his petition for

post-conviction relief. He presents the following issues for our consideration on

this appeal: (1) whether the trial court denied Appellant a full and fair evidentiary

hearing by failing to timely file its order dismissing his petition for post-conviction

relief; (2) whether there is a constitutional and statutory right to the effective

assistance of counsel in post-conviction proceedings; and (3) whether the trial

court erred in dismissing Appellant's petition for post-conviction relief.

After a review of the record, we affirm the judgment of the trial court.

I. FACTUAL BACKGROUND

Appellant was convicted by a jury in the Davidson County Criminal Court

on March 13, 1991 of the following offenses: four counts of aggravated rape, one

count of aggravated sexual battery, four counts of rape, and one count of sexual

battery. As a Range II multiple offender, Appellant received an effective

sentence of one hundred ninety-eight years incarceration with the Tennessee

Department of Correction. This Court affirmed his conviction and sentence.

State v. Larry T. Carter, C.C.A. No. 01C01-9110-CR-00308, Davidson County

(Tenn. Crim. App., Nashville, October 29, 1992). The Tennessee Supreme Court

denied permission to appeal on January 25, 1993. perm. to appeal denied,

(Tenn. 1993).

On July 20, 1995, Appellant filed his pro se petition for post-conviction

relief in the Davidson County criminal Court, alleging, inter alia, that his trial

counsel ineffectively represented him. The trial court conducted a hearing on the

petition on April 17, 1996. On May 12, 1997, the trial court dismissed Appellant's
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petition for post-conviction relief. On June 16, 1997, Appellant filed an untimely

notice of appeal.

Specifically, Appellant alleges the following deficiencies in his trial

counsel's representation:

(1) failure to present an alibi defense;

(2) failure to call Reba Carter, Appellant's wife and the mother

of the two victims, to testify as anticipated in counsel's

opening statement; and

(3) failure to call Appellant to testify.

As stated previously, Appellant also complains about his post-conviction hearing.

It is these claims we will address first.

II. POST-CONVICTION RELIEF

In post-conviction proceedings, the Appellant bears the burden of

proving the allegations raised in the petition by clear and convincing evidence.

Tenn. Code Ann. § 40-30-210(f). See also Scott v. State, 936 S.W.2d 271, 272

(Tenn. Crim. App. 1996). Moreover, the trial court's findings of fact are

conclusive on appeal unless the evidence preponderates against the judgment.

Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1996); Campbell v. State, 904

S.W.2d 594, 595-96 (Tenn. 1995); Cooper v. State, 849 S.W.2d 744, 746 (Tenn.

1993).

A. FULL AND FAIR HEARING

Appellant's first contention is that he was denied a full and fair hearing on

his post-conviction petition because the trial court failed to issue an order within

the time constraints set forth in Tenn. Code Ann. § 40-30-211(d). We disagree.

Tenn. Code Ann. § 40-30-211(d) provides:

(d) The court shall rule within sixty (60) days of conclusion of

the proof. Such deadline shall not be extended by

agreem ent, and such deadline may be extended only by order
1

The only thing remotely resembling some sanction for a failure to comply with Section 40-30-

211(d) is an annual report to the general assembly by the administrative office of the courts as to the

com plianc e by the trial c ourts with th e pre scrib ed tim e lim its. Presuma bly this is so th e gen eral a ssemb ly

mig ht enact either e xpre ss sanc tions for the trial c ourts or a re me dy for post-con viction litigant s should

widespread or routine failure to comply with Sec. 40-30-211(d) app ear.

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of the court based upon a finding that unforeseeable

circumstances render a continuance a manifest necessity.

Such extension shall not exceed thirty (30) days.

Tenn. Code Ann. § 40-30-211(d).

Appellant's evidentiary hearing was held on April 17, 1996. On May 12, 1997,

more than one year later, the trial court entered an order dismissing Appellant's

petition for post-conviction relief. 

Nothing in the post-conviction procedure act prescribes either a remedy or

a sanction for a trial court’s failure to comply with the time limits set out in Section

40-30-211(d).1 Although we do not condone a failure to comply with the law as

stated in Section 40-30-112(d), we reject the notion that such an error in this case

deprived Appellant of a full and fair hearing of his post-conviction claims. A full

and fair hearing of post-conviction claims is a hearing wherein the petitioner is

given every opportunity to present evidence and argum ent with respect to his

claims. See, House v. State, 911 S.W.2d 705, 711 (Tenn. 1995). Appellant was

afforded such an opportunity in this case. The fact that the final order was

entered in an untimely fashion does not detract from the full presentation of

Appellant’s claims to the courts. Therefore, this issue is without merit.

B. CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

DURING POST-CONVICTION PROCEEDINGS

Appellant next urges this Court to conclude that the constitutional right to

effective assistance of counsel should be broadened to apply in the context of
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post-conviction proceedings. To bolster this assertion, he alleges that the PostConviction Procedure Act of 1995, Tenn. Code Ann. § 40-30-201, et seq.,

created a statutory right to the effective assistance of counsel in post-conviction

proceedings. We disagree.

Both the Tennessee Suprem e Court and this Court have held that there is

no constitutional right to the effective assistance of post-conviction counsel.

House v. State, 911 S.W .2d 705, 712 (Tenn. 1995); State v. Phillips, 904 S.W.2d

123, 124 (Tenn. Crim. App. 1995). See also Pennsylvania v. Finley, 481 U.S.

551, 554-55, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (holding that there

exists no federal constitutional right to the effective assistance of post-conviction

counsel). Furthermore, Tenn. Code Ann. § 40-30-201, et seq., contains no

statutory right to the effective assistance of counsel in the post-conviction setting.

This issue is without merit.

III. EFFECTIVE ASSISTANCE OF COUNSEL

Appellant's final claim on this appeal is that the trial court erred in denying

his petition for post-conviction relief based upon Appellant's allegation that he

received ineffective assistance of trial and appellate counsel.

A. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

The Sixth Amendment provides in part, "In all criminal prosecutions, the

accused shall enjoy the right. . . to have the assistance of counsel for his

defense." U.S. Const. amend. 6. Similarly, the Tennessee Constitution

guarantees an accused "the right to be heard by himself and his counsel. . . "

Tenn. Const. art. I § 9. In Strickland v. Washington, the United States Supreme

Court articulated a two-prong test for courts to employ in evaluating claims of
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ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The Tennessee Supreme Court adopted Strickland's two-part test in

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began

its analysis by noting that "The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result." Strickland, 104 S.Ct. at 2064. When a convicted

defendant challenges the effective assistance of counsel in a post-conviction

proceeding, the Appellant bears the burden of establishing (1) deficient

representation of counsel and (2) prejudice resulting from that deficiency.

Strickland, 104 S.Ct. at 2064; Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim.

App. 1996). Appellant must prove that counsel's representation fell below an

objective standard of reasonableness. Strickland, 104 S.Ct. at 2064. This Court

is not required to consider the two prongs of Strickland in any particular order.

Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). "Moreover, if the

Appellant fails to establish one prong, a reviewing court need not consider the

other." Id. With regard to counsel's deficient performance, the proper measure

is that of reasonableness under prevailing professional norms. Id. (citing

Strickland, 104 S.Ct. at 2065). Put differently, counsel's performance is required

to be "within the range of competence demanded of attorneys in criminal cases."

Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975); Harris, 947 S.W.2d at 163.

Respecting the prejudice prong of Strickland, the Appellant must establish 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." Strickland, 104

S.Ct. at 2068.
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The Strickland Court emphasized that "Judicial scrutiny of counsel's

performance must be highly deferential." Id. at 2065. "A `fair assessment . . .

requires that every effort be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel's challenged conduct, and to

evaluate the conduct from counsel's perspective at the time.'" Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 2065). The mere

failure of a particular tactic or strategy does not per se establish unreasonable

representation. Id. at 369. However, this Court will defer to counsel's tactical and

strategic choices only where those choices are informed ones predicated upon

adequate preparation. Goad, 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982).

Regarding Appellant's first alleged deficiency, he specifically complains

that trial counsel performed deficiently at trial by failing to present an alibi

defense. At the hearing on Appellant's post-conviction petition, trial counsel

testified that he and Appellant had discussed the trial strategy of discrediting the

two victims as well as other character witnesses. The attorney testified that

Appellant understood this strategy. In its order dismissing Appellant's petition for

post-conviction relief, the trial court concluded that because the victims resided

with Appellant and because the "criminal conduct was an ongoing part of [the

victims] daily existence. . ., the acts simply could not be tied to calendar dates by

the victims. Therefore, a defense of alibi was not available in this case. 

 We conclude it was reasonable not to present a defense of alibi,

especially given that the victims could not identify specific dates on which the

offenses occurred. The trial court properly concluded that the attorney had

directed his efforts in a more appropriate direction by focusing on discrediting the
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testimony of the victims rather than pursuing a rather useless alibi defense. This

alleged deficiency does not make out a claim of ineffectiveness of counsel.

We find no merit in Appellant's second allegation that his trial attorney

rendered deficient representation by failing to call Appellant’s wife, Reba Carter,

as a witness although he had mentioned her nam e during his opening statem ent.

Counsel conceded that he had mentioned Reba Carter's name in his opening

statement. However, after the first day of the trial, Reba Carter purportedly

threatened one of her daughters (the alleged victims) during a telephone

conversation. As a result of some of the comments made by Mrs. Carter to her

daughter during the telephone conversation, trial counsel advised Appellant that

it would be problematic to use Mrs. Carter's testimony. Counsel further testified

that Appellant wanted counsel to make the final decision as to whether or not to

call Reba Carter. Finally, although counsel gave no explanation to the jury as to

the reason for not calling Mrs. Carter as a witness, the decision not to call Reba

Carter as a witness was a reasonable tactical choice under the circumstances.

Moreover, during the jury selection process, the trial court instructed the jury that

lawyers commonly added or deleted people from their list of potential witnesses

as the trial evolved and that such alterations were not significant. In light of the

foregoing, we cannot conclude that the outcome of Appellant's trial would have

been different had Reba Carter been called to testify.

Finally, Appellant erroneously asserts that trial counsel was ineffective in

failing to present Appellant's testimony. At the post-conviction hearing, trial

counsel explained that he thought that it would be detrimental to Appellant to

testify because this would "open the door" to cross-examination concerning

Appellant's prior conviction for child sexual abuse. See, Tenn. R. Evid. 609. Trial

counsel successfully prevented the jury from becoming aware of this prior
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conviction, and given the nature of the charges we conclude this was a prudent

strategic decision. This issue is without merit.

B. EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Appellant next urges this Court to conclude that the trial court erroneously

determined that he received effective assistance of counsel on appeal. However,

Appellant does not specifically enumerate the deficiencies of which he complains.

The same two-prong standard that is used in considering claims of

ineffective assistance of trial counsel is also employed to evaluate allegations of

ineffective assistance of appellate counsel. See, e.g., Porterfield v. State, 897

S.W.2d 672, 677-78 (Tenn. 1995). Typically, the decision about which issues to

raise on appeal is one that is left to the professional judgment and sound

discretion of appellate counsel. Porterfield, 897 S.W.2d at 678; Cooper v. State,

849 S.W.2d at 747.

Approximately one month after Appellant's trial, trial counsel filed a motion

to withdraw. However, according to counsel’s testimony at the post-conviction

hearing, he withdrew the motion because Appellant wanted counsel to continue

to represent him on appeal. Counsel’s time sheet reflects that he spent over

51.3 out-of-court hours preparing Appellant's case for appeal. Trial counsel

raised ten issues on appeal to this Court. Carter, C.C.A. No. 01C01-9110-CR00308, slip op. at 1-2. The trial attorney testified that after this Court issued its

decision in Appellant's case, counsel again filed a motion to withdraw. Given the

state of this record we can discern no insufficiency in counsel’s performance

during the direct appeal of this case.
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Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

DAVID G. HAYES, JUDGE