### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs A

ugust 21, 2001
JEFFREY E. DUNLAP v. STA TE OF TENNESSEE
Appeal from the Criminal Court for Knox County No. 68159 Ray L. Jenkins, Judge

No. E2001- 00189-CCA- R3-PC October 16, 2001

The petitioner, Jeffrey

E. Dunlap, appea

ls the trial court'

s denial of post-c

onviction relief.

The single issue presented for

review is whether the

petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS and A LAN E. G LENN , JJ., joined.
Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Jeffrey E. Dunlap.

Paul G. Summers, Attorney General & Reporter; Eliza

beth B. Marney

, Assistant Attorne

y General ; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On May 16, 1993, Officer Kenneth Robertson was dispatched to

the Mugford Phar

macy in Knoxville. Upon his arrival, Officer Robertson observed the petitioner and one other man standing inside the pharmacy holding boxes. A window was broken. The two men fled. Officer Robertson pursued and eventually arrested the defendant. The other man g ot away. Some merchandise had bee n placed i n the boxes and some w as found outside the

building. Offic

er Robertson neve

r lost sight of the petitioner from the time he arrived at the ph armacy until the time the petitioner was placed under arrest.

Convicted of burglary, the petitioner was sentenced to 12 y ears as a career offender. This court affirmed ondirect appeal. State v. Jeffrey Eugene Dunlap , No. 03C01-9607-CR-00251 (Tenn. Crim. App., at Knoxville, Aug. 21, 1997). Application for permission to a ppeal was denied

April 13, 1998.-2-

On May 13, 1999, the petitioner placed the petition for post-conviction relief in the prison mail system. The petition was marked for filing on May 18, 199 9. The petitioner a

lleged at least 25 grounds for relief, including the claim that his trial co unsel had been ineffective. After the appointment

of post-convictio

n counsel, the petitioner filed amendments, including the allegation that his conviction was based in part upon the "untrue, false, and misleading testim

ony" of Ronn

ie Ride nour, the victim of the crime , who, according

to documents in the r

ecord, was subse

quently involved in a conspiracy

to illegally distribute a controlled substance. The petitioner claimed that Ride nour c ond uct ed a f enci ng op erat ion at t he p harm acy an d th at t here was no r obb ery, o nly a "voluntary and consensus exchan ge of drugs for money or goods."

At the evidentiary heari

n g, the petitioner testified that his trial counsel met with him only four or five times before the trial, for a total of no more than three hours all to

gether. Acco

rding to the petitioner, the two talked approximately three more times by telephone. He complained that his trial counsel never

informed him that he would tes tify at his tr

ial until he was ac

tually calle

d as a witness. The petitioner claimed that his trial counsel failed to call at least five witnesses he had requested be present. He also contended that his trial counsel failed to present any evidence on his behalf at the sentencing hearing and argued that his trial counsel was ineffective for having failed to object to the admission of a ring into

evidence. The petitioner sub mitted that his trial

counsel failed to

properly investigate

the victim, who, the petitioner claimed, "was running illegal activities and . . . selling the stuff (stolen goods he

had acquired in r

eturn for drugs) through a flea market [o]n Alcoa Highway."

Trial counsel testified that he had talked to his client many times in preparation for

the trial. He described the defense as "a drug deal gone bad." Trial counsel stated that only the victims, the petitioner, and a co-defendant named McBee were at the pharmacy at the time of the offense. While conceding that the petitioner provided se

veral na mes of potential witnesses, trial counsel, who claimed to have contacted each one of them by telephone or in person, concluded that "nothing that they had to say served to benefit the defense." Trial counse l also testified that he was aware that each of the Ridenours (husband and wife) who had testified at trialhad extensive criminal records, which "we brought . . . out at the trial." Trial counsel estimated that the amount of time he

invested in

the defense of the case was 72.3 hours out of court and 25.1 hours in court. Trial counsel recalled that Mr. McBee did not testify at the trial. Trial counsel further explained the theo ryof defense as follows:

Mr. McBee had purchased some bad cocaine from Mr. Ridenour, and . . . Mr. Dunlap and Mr. McBee went o ver to the Ridenours . . . [to] get it straightened out. And when they got there is when the problem occur

red. There was

all sorts of jewelry and claims of . . . a purchase by Mr. McBee of . . . cocaine from Mr. Ridenour which Mr. Rid eno ur d eni ed, fla tly.

The trial court

accredited the testimony of trial counsel and determined that the petitioner had notclearly and convincingly proved his allegations of ineffective assistance of counsel. Rejecting altogether the claims of the petitioner, the trial judge denied post-conviction relief.-3-

In this appeal, the petitioner acknowledges that the proof presented at the evidentiary hearing is almost in direct conflict. He asserts generally that the facts in the re cord estab lish ineffec tive assistance of counsel. For the first time on appeal, the state argues that the petitioner failed to timely filehis petition for post-conviction relief, pointing out that our suprem

e court denied application for permission to appeal on April 13, 1998, and that the petitioner placed the petition in the prison mail system one year and 30 day s later.

This court will first address the procedural issue

. In State v. Nix , 40 S.W.3d 459 (Tenn. 2001), our supreme court made the following observation:
As the state points o

ut, Tenn. Code Ann. § 40-30-202(a) declares that the one-year statutory pe

riod is an element o

f the right to

filea post-conviction petition and that i tis not an affirmat

ive defense that

must be asserted b

y the state.

Therefore, it is incumbent

up on t he petitioner to include allegations of fact in the petition establishing eit

he r timely filing or tolling of the statutory period. SeeTenn. Code Ann. § 40-30-204(e) ("the petitioner shall include allegations of fact supporting each claim for relief set forth in the petition . . ."). Failure t o include sufficient factual allegations of either complianc e wi th the statute or incompetence requiring tolling will result in a dismis sal.

Panels of our court have held that the statute of limitations begins to run on the date our supreme court files its opinion. See, e. g. , Monro e Brown v. State, No. 01C01-9112-CR-00367 (Tenn

. Crim. App., at Nashville, Aug. 6, 1992). Neither the petitioner nor the state make s an y argument as to whether the issuance of the mandate, 30 days after the opinion, qualifies as "the final action of the highest stat e appellate court to which an appeal is taken. . . ." The statute further provides that "if no appealis taken," the action should be filed "within one year of the date on which the judgment b ecomes final. . . ." Because our court has determined that the final action of th e supreme court is on the date

of fili ng of e ither their opinion or their denial of the application for permission to appeal, those cases serve as precedent and would bar consideration of the substantive issues. John Haws Burrell v. State , No. E1999-02762-CCA-R3-P C (Tenn. C rim. App., at Knoxville, Jan. 8, 2001).
Notwithstanding our determination that the statute of limitations precludes consideration of the issue of effective assistance of counsel, it is our vi ew that the petitioner would not have succeeded on the merits of his claim.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance o f counsel, he must first establish that the services rendered or the advice given

were below "t he range of competence demanded of att orneys in criminal cases." Baxter v. Rose , 5 23 S.W. 2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse e ffect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shouldthe petitioner fa il to establis h either factor, he is not entitled to relief. Our supreme court described the stand ard o f review as follow

s:-4-

Because a peti tioner mus t establis h both pron gs of the test, a failure to prove either deficiency

o r prej udice provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not address the co

mponents in any particular order or even address both i f the d efendant makes an insufficient showing of one component.

Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996). On claims o f ineffective a

ssistance of coun

sel, the petitioner is not entitled to the benefit of hindsight, may

not second-guess a reasonably based trial str ate gy, 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 decision s of counsel, however, appli es only if the

choices are mad

e after adequa

te preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Under our statutory law, the petitioner bears the burden of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the findings of fact made by the trial court areconclusive and will not be disturbed unless the evidence contained in the record preponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderated against those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

T he record demonstr

ates that the tria

l court accredi

ted the testimony

of trial counsel, concluding that his services were not deficient. The petitioner wa s unable to

establish any prejudice, whether or not his counsel's performance met professional guidelines. For example, he presented
no w itnesses at the post-conviction proceeding that might have shown that the results of his trial might have been different had they been able to g ive testimony.
Accordingly, the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE