### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE January 22, 2002 Se ssion
MOHAMED F. ALI v. STATE OF TE NNESSEE Appeal from the Criminal Court for Washington County No. 26033 R. Jerry Beck, Judge, By Interchange

No. E2001-00183-CCA-R3-PC April 11, 2003

The petitione

r, Mohame d F. Ali, a

ppeals f rom the jud

gment of the Washin gton Coun

ty Crimin al Court denying him post-conviction relief from his convictions for rape and attempted bribery. He is serving an effective se

ntence o f fiftee

n ye ars in the

Departm ent of Cor

rectio n. The pet itioner contends that the post-conviction court erred in (1) apply

ing inco rrect la w gover ning judi cial bias , (2) finding that the convicting trial judge wa s not biased agains t him, (3) excluding evidence of judicial bias, (4) refusing the petitioner’s discovery requests re gard ing the issue of bias, and (5) denying the petitioner’s clai m of ineffective assis tanc e of c ounse

l. We affirm the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON , J., delivered the opinion of the cour t, in which J AMES C URWOOD W ITT , J R . and N ORMA M C G EE O GLE , JJ., joined.
Janie L . Lind amood, Johns on City , Tennes see, for the appe llant, Moh amed F. Ali.
Paul G. Summers , Attorney Gene ral and Reporter; Mark

A. Fulks, Assistant Attorney Ge neral; Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, A ssi stant District Attorney General, for the appellee, State of Te nnessee.1 W e note that the p etitioner ’s brief fai ls t o comply wit

h the r equirement s of t he rul es of appel late procedure. The post-c onvic tion rec ord conta ins seve n volu mes o f testimon y and e xhibits. The convicti ng tri al recor d contain s over thirty vol ume s of various sizes. Pursuant to Rule 27(a)(6), T.R.A.P., the appellant i s required to present a st atement “setti ng forth the f

acts r elevant

to th e iss ues pres ented f or revi ew with ap propriat e refer en ces to the record.” The following is the petitioner’s statement of the facts:

Original facts were detailed by thi s Court in State o f Ten nessee v. M oha med F. Ali , 1996 Tenn . Cr im. App. LEXIS 617 @ *2-5 ( copy at tach ed) an d also by the lo wer co urt. R, II @ 220-25; T, I @ 18-23

Post- convi cti on fac ts were de tai led by the lower court . R, II @ 225-29; T, I @ 23-32.

For purp ose o f brevity, A li relies on the statem ents of the facts alrea dy in rec ord , supra
. The argum ent po rtion o f the brie f is written in a c ryptic style tha t i n many i nstan ce s defies underst anding unless t he
reco rd is sea rched and r eview ed in d etail to determine the perti nent fact s and tr ial court act ions. Arguments are oft en conclusory or tang ential. Th e brie f purp orts to rai se fi ve iss ues but many th ings are argue d. Given t he natu re of t

he brief and the task a t hand , we will focus o ur ana lysis on the five issues a nd re frain from pursu ing argu men ts that are ta ngen tial, irr elev ant, or wai ved. -2- OPINION
The petitioner, a medical doctor, was convicted of raping a drugged

patient in his office and
o f attemptin g to brib e her to d rop the r ape cla im. A conc ise summar

y of the rele vant facts come s from an earlier appeal in which the sentenc es were affirmed. 1

The defendant is a phy sician. In 1989, one of h is female patients, the victim, went to the defend ant to have her cholesterol checked. After

taking a blood sample, the defendant put on a rubber glove, p ul led up the victim’s dress, and placed his hand inside her
un derwe ar. The defendant then administered an injection which he explained was for

muscle spasms and directed her to the examination table. The victim described her state afterwards as in a “dr eam world”
or “in la la land.” The defendant removed the vi ctim’s u nderwear, fondled her privates, and stated that he would hav e to show the victim how sh e and h er husba nd should h ave inte

rcourse . The vic tim
re member ed that the d

efenda nt unzipped

his pants a

nd place d his penis into her v agina a

nd that, when she tr

ied to pull away, he forced her back. She described the incident was “over quic kl y .” When the victim stepped away

from the examination t able, she noticed what appeared to be a semen stain on the paper covering. She recalled that she was unab le to fin d her underwear. The defe ndant then directed her to the reception desk to make another appointment. After lea ving the office, the victim stopped at a convenience marke t and calledher husband. When her h

usband a rrived a t the mark

et, he found that

her speechwas slurr

ed. The victim

informed him that she had been raped-3- by the de fendant an d could not find her underwear. The matter wa s then reported to the police.
Officers later found a semen stain on the examination table. Testing indicatedthat the defendant could have been the source of the
semen. Later, the victim’s husband met wi th th e d ef

en da nt pr iv at el y. A recording of the conversationconfirmed that the defendant claimed to have given the vi ctim an injection dosage of a steroid which he contended

had caused her to imagine that the rape had occurred. The defendant stated that

he had c ontacte d his insurance company and had been au th or iz ed to pa y $ 20,000.00 in cash for the wrongful injection. The defendant had

also offered to pay

for psychiatr

ic counseling for the victim. Testimony

by a repr esentative of the defendant’s malpractice insurance carrier contradicted the defendant’s claims. A blood and urine analysis of

the victim contradicted the defendant’s claim that he had administer e d depo-medrol, a steroid; instead, tests indicated a high level of hydroxy

zine, asedative

used as a pre-anesthetic. Expert testimonyindicated that the drug could make one phy sically

helpless

. Statev. Mohame d F. Ali , Nos. 03 C01-98 02-CR-00065 and 03C01-9809-CR-00310, Washington Co un ty, slip op. at 2-3 (Tenn. Crim. App. Aug. 24, 1999) . The convictions we re affirmed in a pre vious appeal. See State v. Mohamed F . Ali , No. 03C01 -9405-CR- 00171, Was hington C ounty (Tenn. Crim. App. Sept. 26, 1996).
After he was convicted, the petitioner ended his retained c oun sel’s repr esentation and represented

himself through the motion for new trial hearing and sentencing. He raised the issue of ineffective assistance of counsel and presented sever al witnesses at the new trial motion hear ing. Counsel were appointed for the appeal, but they did not ra ise the issue of ineffective assistance of counsel in the appe al.
The post-con

viction he aring w as ess entially limited to testimony on the issues of judicial bias and the inef

fective assistanc e of appe

llate cou nsel. Relative to ineffective as sistance of trial c ounsel, the post-con

viction c ourt note d that the petitione r repre se nt ed himself at the motion for new trial hearing and raised the issue of c ounsel’seffec tiveness at that time . It c oncluded that the is sue was, therefore, previous ly d

etermined and that

if appellate counsel should have raised it in the appeal, the only record would have been the transcript of the motion for new trial hea ring. Thus, the relevant record for us to review consists of the post-conviction hearing transcr iptand the motion for new trial hearing transcript. We also take judicial notice of the c onvicting trial record on appeal.-4- POST-CONVICTION HEARING
Rev. Donald P. Strother testified that he talked by telephone with Judge Ly nn W. Brown, who preside d at the pe

titioner’ s trial, two or thr

ee wee ks befor e the pet itioner’ s sentenc ing. He

said he told Judge Brown that he had listened to the trial and that he thought a lega lly trained mind

could
see the lack of

evidence and, at least, give the petitioner a light se ntence. He said Judg e Brown told him to come to

the hearing to say

what he wanted to say

for the petitioner but also said, “y ou are not going to like what I’m

going to do about Dr. Ali.” Rev. Strother acknowledg ed that he a lso wrote Judge Brown a letter on the petitioner’s behalf but that Judge B rown returned it without reading it. He denied going to Judge Brown’s office. Judge Ly nn W. Brown testified that he presided at the petiti oner’s 1 993 trialsfor rape and bail jumping. He reca

lle d Rev. Strother coming to his office between the petitioner’s tria l and sente ncing. He knew

Rev. Stroth

er, who h ad previ ously

served as grand jury

forem an when Judge Brownhad been an Assistant District Attorney General. Judge B r own stated that Rev. Strother wantedto talk to him about the petitioner’s case and that he told Rev. Strother such a discussion was improper. However, Rev. Strother persisted, telling him that the petitioner had accepted Jesus and was innoc ent. Judge Brown testified that he told Rev. Strother that nothing could be considered outside of court. He acknowledged say ing to Rev. Strother that the Reverend was not going to like what Judge Brownwas going to do, but he denied having his mind made up abo ut sen tenci ng at th at ti me. J udge Brownindicated that his statement was partly in response to Rev. Strother’ s claim of the petitioner’s innocenc e, give

n the over whelming evidenc e of the p etitioner ’s guilt. Judge Brown w as questi oned about other e vents which the petitioner contends show his bias agains tthe petitioner. Judge Brown acknowledged te lling a bondsman that what heneeded was a “good used cam el” rela tive to the bondsman’ s attemptsto return the petit ioner from E gypt. Ju dge Brownsaid that he was intending humor directed at the bondsman given the futility of his attemp ts. Judge Brown acknowledged that he w as a n acquaintance of Dr. Jan Allen DeWitt who testified at the moti on for new trial he aring a t which the

petit ioner re presented himself. He acknowledged

eating lunch

with Dr. DeWitt on the day he testified. Judge Brown explained

that he went to lunch with his court reporter. When Dr. DeWitt arrived and no seats were available, he invited Dr . DeWitt to jo in them. Judge Brown also said he sawno reason to disclose the fact that Dr. DeWitt was a personal acquaintance. Judge Brown identified

a transcript

of a hea ring fo r bond for the petiti oner pending ap peal. The transcript reflects that the petitioner’ s counsel sought Judge Brown’s recusa l because the petition erha d filed a complaint against him with the Court of the Judiciary . Regarding the complain t, Judge Br

own state d, “I

have never see

n so much ga

rbage , untruth, lies and d

eceitfu lness. And the Court of Judiciary determinedthat that was about the substance of it, it’s been dismissed.”-5-

After hearing argument fr

om couns el, with r eferen ces to the ev idenc e at th e tria l and s enten cing, Judge Brown denied bond, concluding that a r isk of flight existed.
J udge Brown denied harboring any personal prejudice or bias against the pe titioner . H e deniedbasing any

rulings in trial or sentencing in any sense on personal prejudice or bias against the petitioner.
Ronald R. England testified that he was the sheriff in Washingt

on County

in 1994. He

said he continued to hold the petitioner in the local jail after sentencing at the request of Rev. Strother. He said Judge

Brown th

en told him t

o send the

petiti oner to the st

ate p enite ntiar y w hen t he ne xt opening occurred.
Randall Reagan testified that he handled the petitioner’s case on appeal through his contra ct appella te work for the Public Defender’s Office . He said he reviewed the entire recor d and had
numerous telephone conve rsations with the pe

titioner, discussin g the case and strategies. He concluded

that the r ecord w as not suf

ficient t o raise the issue of ineffectiveness of counsel on appeal and told the petitioner the issue was better left for a post-conviction claim. Mr. Reaga n did not think this was bad advice and noted appellate dec isions saying the practice of raising ineffective assistance of counsel on direct ap peal was “frau ght with peril.” He believed that the main issue for appe al related to whether a proper wai ver of counsel existed for the petitioner’s new trial motion and sente ncing. He did

not review the record for ineffective counse l purposes and saw no glaring er ror committed

by t rial counsel.
David Bautista , the Distr

ict Public D efende

r, te sti fied tha

t his offic e was ap

pointed to represent the petitioner o n appeal. He said they review the case, identify issues available for the appeal, and note the m o n a form. The petitioner’s form has notes that the petitioner complained about the ineffective assistance of counsel. Mr. Bautista was aware that Mr. Reagan did not include the ineffe ctive counsel issu e in the br ief. How ever, Mr . Bautist a did notbelieve sufficient grounds existed to pu

rsue the claim.
Mr. Bautista recalled

the hearing before Judge B rown regarding the pe titioner getting bond pending appeal. He said Judge Br own seemed upset or mad for no apparent re ason.
James T. Bowma

n, the pet itioner’ s trial counsel, te stif ied that he saw no thin g in J udge Brown’s demeanor toward the petitioner dur i ng the trial that would have led him to believe any preconceived

bias or prejudice existed. The trial court barred further testimony

from Mr. Bowman regarding his representationof the petitioner, noting that the issue of ineffective assistance of trial counsel was previously dete rmined andthat appellate counsel would only have had the transcript of the motion for new trial hearing.-6- MOTION FOR NEW TRIAL HEARING
The petitioner, acting as his own counsel, called numerous witnesses at the hearing on the motion for new

trial. Hisprimary

complain

ts against his tria

l counsel dealt wit h the fai lure to de velo p and present existing evidence on his behalf, obtain expert assistance, and obta in existing evidence to impeach the victim.
Dr. Jan Allen DeWitt testified that he examined the victim on the day in question. He saw
no bruises, no changes in her flesh, nor dried secretions. He said he found nothing “positive.” He said that her behavior was tens e and “co nsistent with having something awful happen however.” Dr. DeWitt admitted it would be difficult to tell whether a drug or something else was af fecting her demeanor, but he sai d he sa w no sign that the victim was under the influence of something. Dr. DeWitt wa s s ub po en ae d b y th e s ta te bu t n ot as ke d t o t es ti fy. He was not conta cted by trial cou nsel.
Johnson City Police Sergea nt Sam Reed was the chief investigating offic er on the case. He testified that they had a

n open filepolicy and that Dr. De Witt’s report was in the file. He recalled being at the emergen c y r

oom for tw o or thre e hours w hile the victim was e

xamined. Dr . DeWitt gavehim a sex crime kit for the victim, whichhe sen t to t he FBI. Ser geant R eed sai d that a coll ege student a ccompan ied him. Sergeant Reed testified that he searched the petitioner’s off ice, primarily the e

x amini ng room in question. He took swabs and smears from various places and took the paper from the top of the examination table. He sent the various items to the FBI but was not awarethat the swabs and smears had not dried enough for use until an FBI agent testified at the trial. Sergeant Reed al so ack nowle dge d havi ng to obtain three separate blood samples from the defendant. The first two did not result in any FBI testing , but the last one did. Danny Pyke testifie d that he w as a

former officer

and had accompanied Sergea nt Reed to the petitioner’s office. He recalled the paper being taken from the examination table. He acknowledg ed being indicted for

prescription forgeries and receiving pretrial diversion. However, he denied any wrongdoing.
Sarella Patel test ified tha t he had been a deputy

jailer f or the Was hington C ounty Sheriff’s Department

in 1992. He acknowledged providing inf ormation to the District Attorney Ge neral a day
or two before the petitioner’s trial that was based upon what the petitioner had told him. He testified at the petitioner’s trial on behalf of the state.
Nechia Ann Douglas testified that she took a Phy sician’s Desk Refe rence (PDR) to the petitioner’s trial attorney a t the courthouse during the trial and retrieved it afterward. She said that Mr. Bowman’s secretary , Martha Perkins, told her that she would receive medical records fr om Blue Cr os s/ Bl ue Sh ie ld , b ut sh e n ev er re ce iv ed an y.-7-

Vickie Wise testified that she had beenthe petitioner’s secretary and medical assistant. She said she tried to get Mr. Bowm an’s off ice to g et a ledg er car

d from Jone s & Jones la w firm in Greeneville. Mr. Bowman’s secretary kept saying

that they would. Ms. Wise said she called them for weeks, but they

did not get any

ledger cards. She identified a card and said that it was the day she “worked Ms. Dugger out,”refer ring to the victim’s daughter, and that she had talked with the vict im and the victim

had paid o n her ac count. She said this w as importa

nt becau se the victim deniedpaying

anything on the

day in question, claiming tha t she d id not have time. She acknowledged

that she testified at

the petitioner’s trial regarding the victim making a payment and the ledger card.
Ms. Wise testified that she gave Mr. Bowman a list of pat ients that had bee n in the office that day and medical records. She said that a

week before trial, Mr. Bowman a sked her for information regarding Depo-Me drol and V

istaril bu t that she t oldhim that she was not qualified. She also stated that sh e r elayed to Mr. B owman the petitioner’s request for an independent DNA and genetics expert. She said Ms. Perkins, Mr. Bowman’s assistant, complained about and was frustrated over the short per

iod of time

she was a llowed to handle the case, mentioning that Mr. Bowman ha d given it to her one month before trial. Christy Lea h Anders on testifi ed that sh e had no p

roblem a t all i n gett

ing ten boxes of document s from Jones & Jones law firm after the trial. She ackn owledg ed that she had an affair with the petiti oner for

three y ears.
Martha Davis Bo wman test

ified tha t she was a

certified paralegal who ha d workedfor Mr. Bowman for two y

ears at the time of

the hear ing. She recall ed being inf

ormed ab out reco

rds in Greeneville, but she remembered that her office had a copy of the pa

rticular ledger card

of intere st that was used at trial. She said that they believed that the copy

showed the victim had paid.
Ms. Bowman acknowledged that the pe titioner provided a specif ic name of a

DNA exper

t, Jack Ra ll ey, and a neurologist. The neurologist trea ted the petitioner before the petitioner left the country before h is trial. The petitioner wanted him to testify about the pe titioner’s state of mind before he left and the medications he presc ribed for the petitioner.
Ms. Bowman testified that the petitioner told her he had “important char acter” witnesses and provided her with the names. She did not recall whether any of the character witnesses were called at the trial. Als o , she did not remember complaining before trial of ha ving too little time for the
case.
The petitioner testified and identified various exhibits. He had photographs of his office and the examining room

in question. He submitted medical records and lab tests of patients that were
seen by him on the day in question, noting that he was questioned at the trial regarding other persons who were examined

in thatroom. He submitted a letter and an article by Dr. Donald C. Thompson dealing with certain drugs causing sexual fantasies a nd hallucina tions, noting that the victim was prescribed

one of the drugs discussed. The petitioner prese nted letters fr om willi ng character-8-

witnesse s, both physicians and nonphy sicians. He had documents from persons who had information regarding the victim . The pet

itioner pr esented financi al reco

rds, stating that t

hey would show that he left asse

ts for his wife and child. He noted that he was cross-examined about his fleeing to Egy pt and not supporting his family.
On cross-examination, the petitioner sa id that he discussed character witnesses with Mr. Bowman, but he den

ied agr eeing with him that

character witne sses w ould not be used. The petitioner said that he also gave Mr. Bowman the na mes of two people who were willing to testify regarding DNA. He didnot believe Mr. Bowman had the scientific knowledg e to cross-examine a DNA expert. He said he urged Mr. Bowman many times to obtain such an expert. He e xplained that such an expert could cast doubt upon the state’s expert who identified semen from the examining
roomas coming from

the petitioner. When asked if he had told Mr. Bowman that he had had sex in many place s in that office and that the semen could have been his, the petitioner said “not in that particular room, no.” He also acknowl edg ed that he told Mr. Bowman that he and his wife were trying to conceive a child, that he had been doing spe rm counts on himself, and that the semen may have come from that. He denied getting Christy Anderson to tell Mr. Bowman just before trial that she and the petitioner had sex on the exam ination ta ble that n ight. He also denied ha

ving sex w ith Ms. Ander son on that

table tha t night.
The petitioner acknowledged prescr ibing Xanax for the victim and that the FBI test of the victim’s blood did not find any Xanax. However , he referred to “ f lashbacks, hallucinations” that could occur.
The petitioner submitted a copy of his civil com plai nt against Mr. Bo wman, sta ting tha t it contained the various complaints he had about Mr. Bowman’s re presentation.
The state called Mr. Bowman as a witness. Mr. Bowman had practiced for twen ty- five y ears, primaril y in criminal defense. He was hired by t he petitio ner whe

n the petitioner wa s charg ed with rape and bribery

and also represented the petitioner when he wa s indicted on Medicaid and Blue Cross fraud charges. He

said that a

lot of peo ple commu

nicated with him on t

he petitio ner’s be

half and some offered

to be character witnesses. Mr. Bowman testified that he had difficulty getting the petitioner to focus on what he thought was important regarding the case. He said the petitioner often talked about filing lawsuits and often tried to enlist Mr. Bowman’s help for othe r prisoners.
Mr. Bowman believed that the fact the petitioner was de pressed when hefled the country was a nonissue. He did not think anyone would d oubt his being depressed and noted that witnesses testified about it. He saw no need to bring in the neurologist who treated the petitioner.
Mr. Bowman saw n o need for a DNA expert. He said the petitioner never denied that the
semen could be his and the petitioner had an explanation as to why his semen would be f ound in the
room. H e said the petitioner told him that he routinely conducted sperm counts because he w a s trying to have a child. Mr. Bow man said tha t closer to trial, the petitioner said he had sex in the
roomwith Ch ri st y Anderso n. Mr. Bo wman stat ed that the petition

er also s aid that he had sex a ll-9-

over his office with various people and that it would not be unusual to find his semen in the office. Mr. Bowman said he

told the petitione

r that he would hav e him testi fy

regar ding the sperm count, butnotthe sex in the office because it would not create a “creditable impression” on the jury. He acknowledged

that after the petitioner told him different versions regarding the

semen, he doubted whether the petitioner was telling the truth.
Mr. Bowman testified that he discussed character witnesses with the pe

titioner a lot. He sa id that he went o ver the p

ros and c ons with the

petitione r and told

him that calling them “w ould probab lybe a bad mistake” and recommended aga inst them. He said that the petitioner did not understandthe limited nature of character witnesses. He noted that the state could ask the witnesses about the fraud charges and c all other witnesses. He believed that, at b est, cha

racter witnesse s would be a “wash .” He did

not know if

the petiti o ner agreed with his assessment, but he stated that the petitione r “cer tainly acquies ced” in h

is decisio n not to use

them.
Mr. Bo wman te stified that the petitioner considered himself an expert in the area of ph ar ma co lo gy. Mr. Bowman said that he emphasized to the petitioner that the case was a rape case , nota case o f drugs . He said that the p etitioner

never of fered h im an explan ation for

why Vistaril was in the vic tim’s blood stream, s aying that he did not k

now. He n oted that

the petiti oner fa

iled to advise him that the petitioner had administered Vistaril to the victim in the past, a point on which the state cross-examined the petitioner at the trial.
Mr. Bowman testified that the petitioner wanted to be co-counsel because the trial court had admonished him

at one time for speaking up. The petitioner believed tha t if he were co-counsel, the trial court could not

put him in jail. Mr. Bowman told the petitioner that he was not willing to have the petitioner as co-counsel.
On cross-examinat ion, Mr. Bowman acknowledged not introducing into evidence the photographs taken of the petitioner’s examining room and examination table. He acknowledged that the petitioner asserted that it was impossible to have sex the way the victim claimed on the table and wantedhim to bring

the examina

tion table into court. Mr. Bowman thought it would have been very damaging to introduce the table, and hewas also concerned given the fac t that the p etitioner had told him that he had had sex with Christy Anderson on the examination table.
Mr. Bowmanacknowl edged that Dr. D eWitt was th

e only phy sician to

examine the

victim and that he was not called as a witnesseven thou gh the p etitioner asked him

to do so. Mr. Bowman said he discussed the matter with the petitioner at counsel table. He said that

Dr. DeWitt did not find any physical evidenc e, but would have testified that the victim was in a distraught state of mind and reporte d having

underg one a ter

rible ev ent. Mr. B owman de clined to call Dr. DeWitt.
Ge ne ra ll y, Mr. Bowman

did not think that the scientific issues about which the petitioner was concerned

about witnesses not

being c alled wou

ld have a ffecte d the outc ome. He r elated th is specific ally

to the drug testing that was done and the DNA evidenc e. I

n this respect, he did not think it was important to determine the victim’s husband’s DNA.-10-

Mr. Bowman acknowledged that he did not ca

ll any of the other

patients that the petitioner saw that day. He

noted that the petitioner’s office had trouble tracking them down, attributing the trouble to the length of time that transpired when the petitioner left the c ountry.
Mr. Bowman testified that he did not t

hink a cha

nge of venue sh ould have

been sou ght. He didnot believe that the publicity reg arding the petitioner’s case justified a cha nge. He said that the petitioner had been of the opinion that hehad many friends and suppo

rters in Wa shington

County and that the trial should remain there.
Mr. Bowman a

cknowle dged lis tening t

o the taped conversation that thepetitione r had with the victim and her husband. He believed that he could understand what was being said. He said that he did not have the tape checked for a uthentication. He explained that he saw no need to check it because the petitioner never complained that the tape had false statements in it. He noted that the petitioner was, in fact, anxious that some parts of the tape be play ed because the petitioner denied the rape.
The petit ioner called Dr. Michael Miy amoto, a professor of pharmacology at the Quillen Coll ege of

Med icine. He

said he sa

w nothing

connec ting benzodiazepines with se xual fanta sies, altho ugh he said it cou ld be possible. He de nied know ing the e

ffects o f Vistar

il or Depo -Medrol

. He read from a PDR regarding the Depo-Medrol formulation being changed

in Novemb er 1990 to be more “bioavailable” than previously . He explained that bioavailability relate s to the drug’sability to combine with the appropriate receptors to produce the intendedeffec t. He acknowledg ed that a drug tha t is not highly bioavailable can be injected but found in very small tra ces in the blood half an hour or an hour after absorption.
Lisa Michelle Stewart testified that she was a medical office assistant for the petitioner. She identified a letter that she wrote to Mr. Bowman and noted that the office records reflected that the victim had previously bee

n hysterical a

nd called the office many times threatening to kill her self if she could not t

alk to the petitione r im mediately . She said t hat the vi ctim had o ther per sonality problems , too. She de scribed the victim

as a prob lem patie

nt. Ms . Stewart was subpo enaed to te st if y, but at that time, she hada five- day -old baby and her h usband wa s having

surger y th at same da y. She said that s he did not recall being contacted by Mr. Bowman or his office about testify ing th e n ex t d ay.
Ms. Penny R. Smith testifi e d that she was the former wife of the petitioner and tha t her attorney was Rebecca Jones of Jones & Jones in Greeneville. Af te r t he pe ti ti on er le ft th e c ou nt ry, her attorney had boxes of his mail, office records, an d th e like delivered to the law office. She recalled testifying a

t the trial and talking with Mr. Bowman. However, she did not believe that

they discussed the substance of her testimony . Ms. Smith identified documents reflecting that she received $50,000 on the sale of the house and $700 per month for ten ye ars for the sale of the petitioner’s office building and stated that the petitioner left her with $ 50,000 in c ashier’ s checks

. She also acknowledged having a Toyota and a Jeep. How ever, Ms. Smith noted that the petitioner askedher for the checks, which she ref used, about a month before he fled to Egy pt and that the-11-

finances were a mess after his flight. On cross-examination, Ms. Smith said that they had planned
on starting a family . She said that she went off birth control pills in June and gotpregn ant some time in July. She said th at th e petitioner did the pregnancy test and would have known that she was pregnant by

August. Judge Brown a

ccredite d Mr. Bowman’s testimony. He concluded that the tape of the petitioner’s conversation wi th the vic ti m was damaging and that counsel did “quite a good job” minim izi ng damage d one when the petitioner testified. He concluded that the petitioner re ceived excellent representation.

POST-CONVICTION COURT’S FINDINGS AND CONCLUSIONS
After the hearing, the

post-conviction court entered a Finding of Fact and Memora ndum of Lawthat is sixty-two pag es long and nee d not be re produce d here. I

t suffice s, at this ju

ncture, to state the court’s summary

finding s: (1) The petit

ioner, Mohamed F . Ali, has f ailed to e sta

blish by clear and convincing evidence , T.C.A. § 4 0-30-210 (f), tha t he is enti tled to post-conviction relief upon an issue or combined issues presented.
Alth ough no longer the l aw, the co urt had a lso viewe d the facts in light of the former p

reponde rance r ule and finds the petitioner had not sh own that he would be entitled to relief under the former and now repeal ed prepo nderanc e test. (2) This cour

t specifi c al ly f inds t

hat th e ac tions of Jud ge L

yn n W. Brown, beyond a re asonable doubt, did not and could not resul t in any prejudice to the pet

itioner a nd that the

petitione r was not d

enied a f air judge at any

stage of the proceeding s.
Th e c ou rt ac cr ed it ed Ju dg e B ro wn ’s te st im on y. Relative to the claim of ineffective trial counsel, the court stated:
This court declined

to hear new proof or reopen the issue alleg ing that original trial counsel was ineffe ctive on t he basis that this issue had been directly ra

ised as a ground in the motion for new trial where a n evidentiary he aring

was conducted by

the original trial judge.

. . . . This court, considering that the Tennessee Court of Cri minal Appe als had specifically f

ound the pro se petitioner’s rep resentat ion at the-12- motion fo r new trial hearing was proper, f ound that the issue was waivedand previously dete rmined by the trial court. In effect, the court declined a

direct second bite of the apple. House v. State , 911 S.W.2d 705, 710 (Tenn. 1995).
Relative to the cla

im of inef fective appella t e counsel, the post-conviction court noted that appella te counsel advised the petitioner not to include the ineffective assistance of trial counsel as
an issue on appeal because it was best left for a future post-conviction proceeding. The court stated this was incorrect legal advice . However, thecourt also concluded that the decision not to appeal the ineffective counsel issue was a “reasonable tactical choic e” based upon appellate counsel’s view of the weakness of the issue. I n this respect, the court also concluded t hat the pe titioner was not prejudic ed by

the failu re to pur sue the is sue in the origina l appeal

. LAW GOVERNING JUDICIAL BIAS
The petitioner cont ends that the post- convicti on court a pplied an incorrect standa

rd in assessing whether judicial bias existed at the petitioner’s convicting trial. He asserts that the court mistakenl y applied harmless error analy sis and, even then, disregarded t he cumulative affect of existing errors. The state responds that the post-convict ion cou rt did not apply harmless err or analysis, noting that the c ourt found that no judicial bias existed.
The petition er assert s that the l aw gove rning ju dicial bia s emanat es from State v. Benson , 973 S.W.2d 202 (Ten

n. 1998), in which our supre me court vacate d convict

ions beca use the judge had solicited a bribe from the defendant. The cour t held tha t the rig ht to an impa

rtial judg e is basic

to a fair trial and

that a violation o f the rig

ht affe cts the int

egrity of the jud

icial pro cess and

require s a new trial without a need for harmless error analysis. Id. at 207. I

t quoted f rom Vasquez v. Hillary , 474 U. S. 25 4, 263 , 106 S . Ct. 617, 6 23 (19 86), t he fol lowi ng:

“When constitutional error calls into question the objectivity of those charged with bring

ing a de fendant to judgme

nt, a reviewing court can neither indu lge a presum

ption of r egular ity nor evalu ate the resulting harm. A cc ordingly, whe n the trial judge is discovered to have had
some basis for

render ing a bia sed judg ment, his a ctual moti v at ions
are hidden from review, and w e must presume that the process was impaired.”
973 S.W.2d at 20 7. We no te th at th e q uo te co me s f ro m a pa ra gr ap h i n w hi ch on ly a plurality of the court joined. See Vasquez , 474 U.S. at 255, 106 S. Ct. at 619. The petitioner also relies upon the Code of Judicial Conduct, which provides: “A judge sh all d isqualify himself or herse lf in a proceeding in which the judge’s impartiality might reasonably

be questioned.” Tenn. S. Ct. R. 10, Canon 3, E(1).-13-

The petitione

r contends that Benson adopted the evide ntiar y standar d and “ 2-pro ng” rule in Vasquez

. He states that the evidentiary standard is “some basis.” He states that the “2-p rong” rule is “that, once the ju dge is di scovered to have h ad ‘SOME BASI S’ for ren dering

a biased judgmen t, a reviewing court can neither indulg e a presumption of regularity nor evaluate the resulting harm.” First, we agree that the post-conviction cour t on occasion viewed events solel y f rom a prejudice viewpoint. However, we believe the petitioner misappr ehends many of the post-conviction court’s rulings. In many

of the examples the petitioner cites to us, the post-conviction court’s actions reflect finding s rega

rding both the la

ck o f bias ag ainst the p etitioner and the la

ck of har m to him. As previously noted, the post-conviction court ultimately stated:

This cour t s peci fica

lly findsthat t

he actions of Jud ge L

yn n W. Brown, beyond a

reasona ble doubt d

id not and c ould not re sult in any prejudice to the pet

itioner a nd that the

petitione r was not d

enied a f air judge a t any stage o f the pro ceeding s.
We interpre

t the post- convicti on court’ s ruling s to encompass two issues: (1) whether Judge Brown was biased against the petitioner and (2) whether Judge Brown’s conduct was improper ly prejudicial to the petiti o ner. In other words, the court considered the impact of Judge B rown’s claimed misconduct

even if it did not justify a finding of bias. We conc lude that the post-conviction court did not er roneousl y a pply a harmle ss error

analy sis to the ul

timate issu e of judic ial bias.
As to the petitioner’s claimed evidentiary standard of “some basis,” we do not believe that
our supreme court adopted such a standard or burden of proof when it quoted Vasquez . In Benson , the court concluded that the preponderance of the evidence showed that the trial judge had solicited the petitioner

for a bribe and that the judicial corruption required r eversal. 973 S.W.2d at 207. The preponderance

of the evidence standard arose fr om the former post-conviction procedure act and the court noted that under the new act, a petitioner has the burden of proving factual alleg ations by clear and convincing evidence. Id. ; see Tenn. Code Ann. § 40-30-210(f). The present case is governed by the new Post-Conviction Procedure Act. Thus, the petitioner was required to prove hi s allegations of fact by

clear and convincing evidence, and we may over turn t he tri al cou rt’s f indi ngs only when the evidence in the record prepond erates agains tthose findings. See Fields v. State , 40 S.W.3d 450, 456- 57 (Tenn . 2001). We do agr ee, thoug h, with the

petitione r’s asse ssment o f the result once judicial bias is proven. Reversal is required without any separate consideration of whether proof of prejudice exists.
Whatconstitute s the ty

pe of bia s that is at issue in this case has been fully discussed by t

his
co ur t p re vi ou sl y.
While the words “bias” an d “ prejudice” are central to the

determination of whether a recusal should be g

ranted, neither

term is defined in Tenne ssee ca se law asit relate s to the issu e of rec usal. Genera lly the termsrefer

to a state of mind or attitude that works to-14- predispo se a judge

for or a gainst a party . Other ju

risdic tions have elaborated on that decision.
A Missouri court has defined “prejudice” necessary

to require
recusa l as [T]he attitude o f person al enmity towards the party or in favor of

the adve rse par ty to the other ’s detrim

ent. It is not the mere possession of views regarding the law or the conduct

of a party or of his c ounsel. Prejudice is in the per s onal sense rather than in the judicial sense. Prejudice refers to a mental attitude or a dispos ition of the judge towards a party : either a hostile feeling or spirit of

ill-will against one of the litigants, or a favoritism toward one of them. Stateex rel. Wesolich v. Goeke , 794 S.W.2d 692, 697 (Mo. App. 1990).
Not ever y bias, partiality , or prejudice merits recusal. To disqualify, prejudice must be of a personal character, direc ted at the litigant , “must stem

from an e

xtrajudici al s ource an d result in an opinion on the merits on some basis other than what the judge learned from . . . participation in the case.” Id.
Personal bias in volves an antagonism toward the moving part y

. . . but does not refer to any vi ews that a judge may

have regarding the subject matter at issue. Impersonal pr ejudice resulting from the judge’s background experience does not warrant disqualification. If th e bias is based upon actual observance of witnesses and e viden c e givenduring t

he trial, the judge’s prejudice does not disqualify the judge. Howeve

r, if the b ias is so pe

rvasive that it is suffic ient to deny the litig ant a fa

ir trial, it need no t be extraj udicial.
Adverse rulingsby a

trial cou rt are n ot usually

suffic ien t grounds to establi sh bias. Rulings o f a trial judge, even if e

rroneou s, numerous and continu ous, do not, without more, justify disqualification.
Often pa rt ie s a ll eg e t ha t c om me nt s m ad e b y t he ju dge demonstr ate bias or prejudice. An expression of opinion of

the merit s of the case prior to hearing the evidence is indicat

ive of bia s. Remarks which suggest that the judge has taken a p osition fa vorable
or unfavorable to a party

also i ndic ate bi as. Re marks indi catin g a judge’s personal moral conviction or which “reflect pre vailing-15- societal attitudes ” are insufficient alone to mandate disqualification. United States v. Norton , 700 F.2d 1072, 1076 (6th Cir. 1983). Any comments made by t

he trial c ourt must

be construed in the context of all the facts and circumstances to det ermine whether

a reaso nable person would construe those remarks as indicating partiality on the merits of the case. Alley v. State , 882 S.W.2d 810, 821-22 (Tenn. Cr im. App. 1994 ) (most citations omitted). We will review the claim of bias with these guidelines in mind.
JUDICIAL BIAS
The petitioner contends that the post-conviction court erred by finding that Judge Brown was notbiased. He refers to va r ious events that happened before, during, a nd after his trial, which he claims show Judge Brown’s bias against him. First, he refers to J udge Brown’s comments during hearing s on June 6, 1991, and October 4, 1991, t hat deal t wit h the bonding company on the petitioner’s bond during the time that the petitioner had abscond

ed to Egy pt. Relati ve to an a

ttempt to lo cate and return the petiti oner for

trial, Judge Brown commented about his hoping that the bonding agent had a “good u sed came

l,” beca use he was g oing to need it. The post-con viction c ourt, referring

to one of t

he hear ings, fo und that:
The camel comment was not a racial slur nor evidence of bias of the judge toward th e petitioner and even if by some leap of the imagination it could be

consider ed as such it

would be harmless error beyond a reasonable doubt and

no possible prejudice could fall on the petitione r as a re sult of the

comment.
The comment se

ems to be at best a side remark clearly a imed at the bail bondsman pointing out the difficulty he might have in returning
a very elusive f

ugitive defendant

from Egy pt [probably an attempt

at ironi cal h umor]

. Also, althoug

h his brief does not

specify how the r

emarks s how bias, the post- convic tio n court stated tha

t the petit

i o ner claimed that the comment amounted to a racial slur and wa s insensitive to the

petit ione r. We assume that t he pet itio ner’s c oncern s rema in th e same, altho ugh he does not explain why he believed the c omment to be a racial slur and insensitive to him. The petitioner complains that the courtconsidered only one of the remarks. Given the fact of the petitioner’s whereabouts at the time of the hearings, the fact that Eg ypt is large

ly desert terr

ain, and the fact that camels have been used for c ountless centuries as beasts of bur den and conv ey ance in desert regions of Africa and the Middle East, we agree with the post-conviction court’s view of the comments. Obviously, the context of both comments was the same , and although the post--16-

conviction court mentioned only one of the he arings , its findin gs apply equally well to the second hearin g. Second, the petiti oner refers to Judg e Brown prohibiting him at his motion for new trial hearing from making an of fer of p roof thr ough wit nesses of the manner by w hich the petitioner’s pass por twas rele ased to pr ivate ind ividuals w

ho, he cla

ims, unlaw fully

posed as F

BI a gents in Egy pt. The petitioner claimed that he wanted to show that the police were not author

ized to rel ease the passport and that the methods used to return him for tr ial violat ed his Fourth Amendment rig hts. The record reflec ts th at Ju dge Brown viewed the petitioner’s claim as irrelevant to the issue of whether or not the petitioner was entitled to a new trial. Also, Judge Brown noted that the petitioner testified that he returned from Egy pt voluntarily. He indicated that the fact that “bounty hunters put some pre ssure” o n the petitioner wa s irrelevant. The petit ioner co mplains tha

t Judge B rown’s r

efusal to allow him

to prese nt proof r eflects that Judge Brown “targeted”

the petitioner. We note that the post-conviction court wrongly found that this issue was waived b ecause it was not i n the motion

for new trial. Ho wever, we agr

ee with the court’s conclusion that the remedies argua bly resulting fr

om the petitione r’s cla

im would not result in h

is obtaining a new

trial. Third, the petiti oner refers to im peachme nt of the victim at trial. His brief states that the court allowed impeachment “but excluded similar others intended to show bias and proof of habit. Bias was shown when Brown stated that the only perjured testimony

he hear d was Ali’ s . . . when the alleged victim’s perjury ha d been noted” by

Judge Brown. The petitioner’s brief does not specify what was allowed and what was excluded. The recor d of the convicting trialreflec ts that the victim was describing the sensation that she felt from the medication that the petitioner had given

her before the rape. Mr. Bowman then queried, “Was it the same se nsation t hat you had afte

r you had take

n LSD or ma rij ua na in y our lif e?” The victim responded that she had never taken L SD or marijuana in her li fe. At first , Jud ge Brown sustained the state’s objection. The recor d reflects that

document s reporte dly

from Watauga Mental Health Services included an in ta ke sh ee t d at ed fi ve da ys after the rape obtaining information rega rding the victim. One of the sheets contained notes reflecting that the victim had used LSD in 1986 and used marijuana two to three times in 1986. The prosecution had turned the records over to the defense. Ini ti al ly, Judge Brown believed that its prejudicial effect outweighed

any probati ve value of the evidence. However , the next morning he considered the matter further. In a

jury out hear ing, the victim ag aindenied any use of LSD or marijuana. When shown the mental health center documents, she denied telling a nyone that she had used LSD and marijuana in 1986 and denied that she had written those notations. She said that the information was inaccurate. Judge Br

own then c oncluded

that the d efense could que stion the victim regarding prior
use of LSD and marijuana. I n front of the jury, Mr . Bowman asked the victim if she ev er told representatives of the Watau ga Mental Health Center that she in fact had used LSD and marijuana. She repli ed that she did not.-17-

We fail to see how any

actions by Judge B rown regarding this issue indicate bias a gainst the petitioner. To th e c on tr ar y, the record reflects that he used considered judgment and ruled in favor of the petitioner.
At the motion for new trial hearing, Judge Brown was delivering hi s findi ngs when the petitioner inquired about findings regarding t he victim’s “perjured testimony .” Judge Brown responded, “The Court is of the opinion that if there was any perjured testimony in this case it wa s you rs, Mr. Ali.” He also explained that the victim had not signed the documents and he did not find it to be perjury. We view Judge B rown’s comment to be gratuitous relative to the issue regar ding the victim’s testimony. However, Judge Brown presided over the

trial and observed all the witnesses and evidence given during the tria l. Judge Brown’s comment reflects a conc lusion drawn from those observations. He was allowed to do so. See Alley , 882 S.W.2d at 821. Fourth, the petitioner refers to the ex parte contact Judge B rown had with Rev. Strother noting that two weeks before his sentencing hea ring, Judge Brown

said, “D on, y ou are not going to like what I am going

to do in Dr. Ali’s case.” The petitioner’s brief reg arding this issue complains about the findings of

the post-conviction court and questions the validity of Judge Brown’s original insistence that Rev. Strother had visited him in the office as opposed to havinga tele phone conversation. The brief

does not ot

herwise specify how Judge

Brown’ s comment s hows him to be biased against the petitioner.
The record reflects that Rev. Strother contacted Judge Brown in ex parte fashion about the petitioner ’s sentenci ng. He i ndica ted th at he b eliev ed the re was l ack of e viden ce and t hat J udge Brownshould give the petitioner a light sentence. Judge Brown acknowledged te lling Rev. Strother that he would not like what Judge Brown was going to do about the petitioner. However, he denied having his mind made up about sentencing at that time a

nd indica ted that h is stateme nt was pa rtly in response

to Rev. Strother’s c laim o f the petitioner’s innocence. The post-conviction court accredited

Judge Br

own’s tes timony

regar din g the se facts. We do not believe the record prepond erates agains t such fin dings. Fifth, the petitioner refers to Judge Brown’s purporte d ex parte contact withSheriff England for the purpose of having the pe ti ti on er se nt to th e s ta te pe ni te nt ia ry. The petitioner asserts that the timing was critic al because it was before the hea ring on his motion for new trial and he was proceeding without an attorney. He notes , as well, t hat Judge Brown th en chan ged the

hearing date to over two

weeks la

ter, whic h the petitioner a sserts a llowed c ertain w itnesses t o become “unavailable” on the new date. The petitioner’s brief do es not spe cify the missing

witnesse s or their
ex pe ct ed te st im on y.
The record reflects that Judge Brown deniedcontacting Sheriff England about the petitioner. Mr. Englan d testifie d that Judg e Brown had told him to send

the p etiti oner

the n ext time there was
an opening. Mr. England acknowledg ed that he had previously been holding

the petitione

r locally at the request of Rev. Strother. The post-conviction court found nothing wrongwith Judge Brown’s actions and pointedly cr

iticized Mr. England for comply ing with Rev. Strother’s request.-18-

The petitioner contends that Judge Brown’s actions reflect bias because he targeted the petitioner with them. He notes that Judge Brown did not tell

the forme r sherif f to “ship off sentenced prisoners.” On the other

hand, we note that the evidence does not reflect whether any other prisoners were being i ntent ional ly detain ed by the fo rmer s heriff and wh ether J udge Brown knew about them. The post-conviction court found that Judge Brown’s actions did not show bias. We do not believe that the evidence preponderates otherwise. Sixth, the petitioner refers to Court of the Judic iary

finding s. He ass erts that Judge Brown violated confidentiality rules re garding the court’s investigation of the petitioner’s complaints and that Judge Brown “used foul

langua ge and i nsul ted” t he pet itio ner. At the po st-co nvict ion h earing, Judge Brown acknowledged that the Court of the Judiciary deemed t he lunch with Dr. De

Witt and the ex parte conversation with Rev. Strother to be inappropriate. The record r eflect s that Judge Brownheld a hearing re garding bond pe nding a ppeal wh ile the pe titioner’ s case w as on app eal. When the petitioner’s counsel referred to the complaint filed with the Courtof the Judi ciary, J udge Brown stated, “I

have never see

n so much garbage, untruth, lies and deceitfulness. And the Court of the Judiciary determined tha t that was about the substance of it, it’s been dismissed.”
The post-conviction court viewed th

e Court of

the Judicia

ry finding s to be irrelevant to the issue of judicial bias. We agree. Moreover, the petitioner

does not sp ecify

what con fidentia lity rule Judge Brown violated in discussing with the petitioner’s attorney s complaints thatthe petitioner had made t o the Court of the Judi ciary. We do not e that the pe titi oner’s convi ction and se ntenc ing, which were ultimately sustained, ha d occurred at the time of the bond hearing . In other words , Jud ge Brown’s view of th

e petitioner’s all egatio ns in th e compl aint h as no p robat ive va lue as to J udge Brown’ s views of

the petiti oner in e arlier p roceed ings. Seventh, the petiti o ner ref ers to the fact that Judge Brown ate lunch with a witness who testified at the motion for new tria l hearin g and f

ailed to disclose his relat ionship wit

h the witne ss. This clai m relate s to the fa ct that Judg e Brown

ate lunch with Dr. Jan Allen DeWitt, who testified at the new trial hearing. Judge Brown ac knowledged

that he was an acquaintance of Dr. D eWitt and acknowledged

eating lunch with him on the day Dr. DeWitt

testified. Judge Brown said that he and his court reporter went to lunch and tha t wh en Dr. DeWitt arrived, he invited him to join them because no o ther sea

ts were available. Judge Brown saw no reason to disclose the fact that Dr. DeWitt was a personal acquaintance. The post-conviction court found that the proof did not show “any ac t b y [ Judge] Brown that would detract from the conclusion that the petitioner suffe red no harm to his case or that the trial judge was biased against him.” We ag ree that the petitioner has not shown how this relates to purpor ted bias. Dr. DeWitt ’s testimo ny w as straig htforwa rd reg arding

his examination of the rape victim. The record reflec ts that the p etitioner made sev eral co mplaints to the Court of the Judiciary reg arding Judge Brown . Apparently , the court in one of the cases responded

th at it was i nappropriate for Judge Brown to be ea ting lunch with a witness who was testifying in the matter before the judge. Howeve r, we see n othing th at would r elate Judge Brown’s actions to bias against the petitioner.-19-

Eighth, the petiti oner referre d to Judge B rown’s a dvising p ris on g uards in 1998 that the petitioner remained a security

threat and should not have his restraints removed. Unfortunately, the petitioner’s brief fa

ils to rela te this to a

ny m easure of bias. We fail to see any specific relevance of these circumstances to the petitioner’s convictions and sentence s. Ninth, the petitioner asserts that Judge Brown made improper comments during the motion for new trial hearing. He notes that Judge Brown told an assistant district attorney, “I

know we’re wasting time General, but let’s–I’m g iving–him more latitude, ” and “I ’m letting him build a record.” This occurred while the

petitioner was examining a witness. The petitioner’s brief asks, “Who were WE /US ?” The state argues that Judge Br own’s sta tements a re nothin g more t

han an explanation

to an objecting prosecutor rega rding the broad latitude given a pro se defenda nt. It also argues that the
use of the pr

onoun “we ” was obv

iously a refe rence t o the coll ective ind ividuals in the cour troom. We agree with the state’s view of this matter. Tenth, the petitioner refers to an assistant districtattorne

y g eneral filing a motion to qu ash
a subpoena on behalf of Judge Brown. The petitioner claims that such wa s inappropriate and a conflict of interest. Howeve

r, as the state notes, the motion to quash was filed in the post-conviction proceeding bef ore ano th er j udg e. It is irrelevantto whether Judge Brown was biased ag ainst the petit ioner durin g the pr oceedi ngs dea ling w ith h is con victi on and sente ncing.
The petitioner claims that various events a nd conduct by

Judge Br own prove

bias. Ove

rall, the petitioner presents (1) two pretrial hearing s dealing with the petitioner’s fugitive status, (2) a mid-trial ruling relativeto impeachment of the victim, (3) Judge Brown’s prese ntence conversation withRev. Strother, (4) Judge Brown’s order bef ore the motion for new trial hearing that the petitioner be sent to the peniten tiary, (5) Judge Brown’s refusal to allow the petitioner to provide evidence at the moti on for new trial he aring r egard ing the p etitioner’s passport and how he was returned to the United States, (6) Judge Brown’s comments to the prosecutors during the motion for new trial hearing relative to wasting time, (7) Judge Brown’s comment at the motion for new trial hearing that the only perjury he hadheard

was the p etitioner ’s, (8) Judge Br own’s ea ting lunc h with Dr. DeWitt dur

ing the m o tion for new trial hearing, (9) Judge B rown’s comments regarding the Courtof the Judiciary complaints that were fi led aft er the p etit ioner ’s case was on appeal , (10) Judge Brown’s comments to prison guards in 1998, and (1 1) the moti on to quash filed on beh alf of Judge Brownby an assistant district attorney general during the post-conviction proceedings. Looking at the fac ts, severally a

nd collectively, re garding the various events upon which the petitione r relies , giving credit

to most of th

e basic f indings made by

the post- convicti on court, we fail to see how any
ra tional mind could conclude to any r easonable degree that Judge B rown was personally bi ase d agains tthe petitioner during the trial court proceeding s in the petitioner’s rape and attempted bribery
case.-20- EXCLUSION OF EVIDENCE
The petitioner complains about the post-co nviction court’s excludi ng evid ence at the he aring. He contends that the evidence was admis sible bec ause it wa s releva nt to the iss ue of judi cial bias

. Some of the

complain ts are sp ecific w

hile othe rs are n ot.
T he pe titioner complains that the post-conviction court prohibited him from questioning Judge Brown r

egard ing the “ refusa l” to grant the petitioner pretrial jail credits. While reviewing the petitioner’s list of

disciplinary complaints at the post-conviction hea ring, Judge Brown

noted the one about this claim and stated that he did not recall pretrial jail credits ever arising as an issue. When the peti tioner’s counsel was verify ing if Judge Brown did not recall, the post-conviction cour t sustained the state’s objection. The court stated that because the petitioner had ultimately received his jail credits, he was not prejudiced.
The record

reflec ts that the

judgmen t forms fo

r the pet itioner’ s convict

ions, file d in December

1993, were completely

filled out except for the pretrial jail credits. Although the petitioner testified about

the length of his detention at the sentencing hear ing, we see no indication in the record that the petitioner raised the issue of the judgments being incomplete after the date they were fi led. Tha

t is, no men

tion was ma

de at the motion for

new tria l hearin g or on a

ppeal.
The petitione

r claims t hat Judge Brown le ft his pre trial jail credits off and

then ignored the petitioner’s subsequent motion to obtain the credits. He argues that the fact that he ultimat ely receiv ed the cr

edits is beside the point. Rather, h e argu es, Judge

Brown’ s nonacti on is rele vant to the petiti oner’s c laim that Judge Br own was b iased ag ainst him.
We agree with the petitioner. The post-conviction cour t erred in not allowing him to question Judge Brown a

bout the f ailure to act reg arding

the pret rial credits. However, in context, we do not believe that the error more probably than not affected the result. T. R.A.P. 36( b). As pr eviously noted, in reviewing the record, includi ng th e m an y i nstances that the petitioner has claimed show bias, we have concluded that the existing evide nce do es not reflec t pers onal, impro per bi as by Jud ge Brownagainst the petitioner. We also note that the post-conviction court found that the petitioner was not deni ed a fair judge at any stage of the proceeding s. Nothing even hints at such a bias throu gh the motion fo r new tria l hearin g. Judge

Brown sa

id that he did not re call pre

trial cr edits being an iss ue. We

cannot fathom how further questioning would have made any difference in the ultimate f indings a nd conclu sions rea

ched by the post- convicti on court.
The petitioner complains that the trial court refused to allow proof reg arding Judge Brown’s relation ship with Danny Pike. He states that Mr. Pike testified at the motion for new trial hearing and knew Jud ge Brown

persona lly. He state s that Judg e Brown was “ judiciall y ” involved in Mr. Pike’s multiple indictments, pretrial diversions, and probation revocations. The petitione r asser ts that Judge Brown failed to disclose his personal and judicial relationship with Mr. Pike.-21-

The record

reflec ts that Mr. Pike was called by the petitioner to testify at the motion for new trial hearing relative

to the state not providing exculpatory inf ormation. Mr. Pike had been employe d by the Johnson City Police Department and had acc ompanied Sergeant Sam Reed in the July 1989 search of the pe titioner’ s office . He testi fied about the item s found by him and Serg eant Reed. He acknowledged

being indicted in 1992 for forging narcotic prescriptions and being place d on pretrial diversion. Mr. Pike denied abusing narcotics in July 1989 and denied having a narcotics problem
or forg ing narcotic prescriptions. Judge Brown conclude d that Mr. Pike revealed no exculpatory informat ion for the petitioner. We not e that Mr. Pike did not

testify at the pe titioner’ s trial.
The post-conviction court concluded that because Mr. Pike did not testify at the trial, proof regarding him and Judge Brown was unnecessary . Again, we agree with the petitioner that the postconviction court missed the petitioner’s point. The f act tha t Mr. Pike did not testify at the petitioner’s trial had little relevanceto whether or not Judge Brown’s relation ship with him was a matter of concern at the motion for new trial hearing . Thus, the post-conviction court erred. However, in context, we do not b elie ve th at the er ror more probably than not a

ffecte d the res ult. T .R.A.P. 36(b). First, we do not believe that the witness’s being a former police depar

tmen t employee and a former defendant appea ring before Judge Brown ga ve rise to a duty on

Judge Brown to disclose any re

lationship. Second, we note that the fact that Mr. Pike was a nominal witness and answer ed all of the petiti oner’s q

uestions p

rovides n o hint of ju dicial bia s in the pr ocess. Next, the petitioner complains about the trial court’s failure to comply with the July

18, 1994 order of this court remanding the issue of the petitioner’s indigency to the tria l court fo r heari ng. His argumen t is t he fol lowi ng:

An excluded “act from the bench”. Brown r efused t o comply withthis Court’s Order dated 7/18/94 (R, I at

112-118, 127-28). Ali wantedto discover

Brown’s habit or routine practice and whe ther he treated similarly-situated defenda nts alike . Th e cumulative-effect.. [sic] The petitioner’s references a re only to the

orders filed by

this court and his own pleadings. There is no evidence of what

transpired in the trial court after this court’s July 1 8 order. In fa ct, ther e is
no referen ce to an ything occ urrin g at the po st-conviction hearing relative to this matter. The petitioner has shown no basis for relief. Next, the petiti oner refers to a n “untrue affida vit and moti on to quash

in 1997.” He

states:
De tails and exhibits are explained in the record (R, I at 20, 110- 11, 128-29). Con nection to Ali is obvious. This a ct was neither

“from the bench” nor

after B rown “lo st

control of case”, but the court ignored it in the Order. The cumulative-ef fect..[sic]-22-

The record reference s are to the petitioner ’s post-conviction petition, an exhibit to his amended petition, and his memorandum in support of his post-conviction claim of bias. The exhibit reflec ts that the motion to quash a subpoena for Judge Brown was filed in a civil case the petitioner had filed agains tthe victim and others. The petitioner m a kes no reference to the hear ing transcript relative to proof or the post-conviction court’s rejection of these matters. The petitioner has shown

no basis for relief. Next, the pe

titioner r efers to “ex parte contact with Alfa

Bridg er.” He

asserts: Details, exhibits and connections to Ali are explained in record (R, I at 20, 101-02, 129). After Brown testified, his credibility was at issue and Ali was e

ntitled to q

uestion hi m about an y relationship that he has had in the past, a friendship, association or otherwise, to show bias, prejudice or interest (Exhibit 10, I at 91). Ali wanted to reveal that B rown di scussed his case with his friend ex parte . The cumulative-effect..[sic] Again, the ref

erence s are to

pleading s, exhibits, and a mem orandum f

iled by the petiti oner. The only reference to the record relates to Judge Brown a llowing the state at the motion for new trial hearing to cros s-examine a witness called by the petitioner about her intimate relationship with the petitioner. Judge Brown viewed

it to be relevant to her

credibility in testify

ing for the petitioner. At another point, the p etitioner

so ught to a sk Judge B rown about a rela tionship with anothe

r woman, not a witness, and the post-conviction court prohibited it as irrelevant to the inquiry. The petitioner has failedto see the difference betwee n the two events. The relationship of a party a nd a witness who testifies for that p arty

is relevant to the witness’s credibility, the concern obviously be

ing whether the witness would knowingly or unknowingly slant testimony in fa vor of

the part y to be helpf ul. However, when t he part y is test ifying and is as ked about a relationship with a nonwitness, the relation ship to the par

ty’ s credib il it y is not apparent. I n the present case, the petitioner has not provided anything othe

r than general claims reg arding what he expected to prove by such a line of quest ioni ng. A trial court need not admit tangential evidence or allow fishing expedition s. In this respec t, the determination of relevancy is within the discretion of the trial cour t and will not be overturned

absent an abuse of discretion. State v. Williamson , 919 S.W.2d 69, 78-79 (Tenn. Cr im. App. 1995). Next, the petitioner

complains about the post-conviction court not al lowi ng proo f of J udge Brown’ s signing

a blank or

der of di smissal in 1 998 in one of the pe titioner’ s habeascorpus c ases. His brief present s the follo wing ar gument:
Ali did not seek to “re-try a habeas corpus” in p ost-conviction context, contrary

to the court finding (T, I a t 97, 101, 113). Error was corrected after A li was forc ed to file

multitudes of pleadings (R, I at 103-04, 126-30). He wanted to show that Brown targe ted him with the act. Was it

his habi t or routine practice to sign blank orders-23- dismissing similarly-situated writs? If he an s wered “YES”, he was grossly negligent and if he answer ed “NO”, he targeted A li. The court did not allow Ali’s questions after Brown was cross-examined (T, I at 98: lin es 1-3) and even after the State asked him about difference

“acts from the bench” to show non-bias (T, II at 165). The cumulative-effect..[sic]
The record reflects that

in November 1998, Judge Brown entered an order in one of the petitioner’s habeas corpus c ases tha

t did not co ntain

a case number. The petitioner refers to a le tter f

rom J udge Brownto the presiding judge of the district that explains that the judgment related to a case that had been appealed and remanded for execution of judg ment but that the clerk’s office filled in the wrong
c asenumber, t

hereby dismissing

another pending habeas c orpus ca se by

the petiti oner. Th

e postconviction court ruled that evidence rega rding the order would not be allowedbecause

it relate d to events well after Judge Brown had a ny dealing s with the petitioner’s criminal case.
The petitioner contends that the post-conviction court was mistakenly relying on the fact that the habeas corpus action was a collatera l matter because of

its mistaken belief that prejudice was the issue. As before, the petitioner ass erts t hat th e evid ence wo uld b e relev ant to provi ng that Judge Brownwas biased against him during the times at issue. We ag ree with the petitioner that the postconviction court misunderstood the purpose of the evidence. However, we believe that any evidence presented regarding that time would be of nominal proba tive value regarding Judge B rown in 1993 and 1994. We believ e that an y e rror wa s harmles s. Next, the petitioner complains about the post-conviction court excluding evidence regarding Jud ge Brown’s writing the Board of Paroles against the petitioner being parole d. The petition e r asserts that the letter contained “untrue facts.” He notes that

the letter st

ated tha t he ente red guilty pleas to Medicaid fraud charges whe n he actually e

ntered a nolo contendere plea to theft under $500. He states that Judge Brown said that the petitioner’s lawsuit aga inst the victim had been “dismissed
as frivolou s,” when

it had bee

n voluntar

ily nonsuited a

t the time. The petit

ioner as serts that he wantedto questio n Judge B rown about his opinions in the lette r which w ere inc onsistent with facts persona lly known to Judg e Brown . As in the t rial cou rt, he posits that t he let ter res ulted from J udge Brown’s anger

about the petitioner’s lawsuit that had been served upon him just days ea rlier. Again, the post-con

viction c ourt ref

used to allow the qu estioning of Judge B rown re garding the le tter or to allow a subpoena for “simi lar lette

rs aga inst similarly-situated

parolees of different race

or religion.” He boldly asserts, “B rown’s letter showed bias in 1999 and supported earlier bias in 1993 and 1994. The cumulativ e-eff

ect.. [sic ]” We do not q

uarrel with the po st-convi ction cou rt’s dec isio n not to allow evi den ce r ega rdi ng t he l ett er. In fact, the petitioner’s argument reg arding theletter resulting from Judge Brown’s anger a

bout the petitioner’s lawsuit warrants an inference tha t the letter has no probative va lue regarding whether or not Judge Brown was biased in 1993 or 1994. There is no merit to th

is claim. Last, th e peti tion er refer s to an “ex p arte bo at tri p in 1 999" an d stat es the follo wing:-24- Details, exhibits and connection to Ali are explained in record (R, I at 20-21, 100, 130). After B rown testified, h is credib il ity was at issue and Ali was e

ntitled to questio n him about any relation ship that he ha s had in

the past, a f

riendshi p, associ ation or o therwise , to show bias, prejudice or

interest (Evid. R. 616; Please See Exhibit 10, I at 91).
Under the totality of circumstance s, a quest ion s uch as “Jud ge Bro wn: Did y ou discuss Ali’s on y our boat that day ?” would have been relevant. The cumulative-effect..[sic]
The refer ences a re to the petitioner’s pleadings and an exhibit of an internal memorandum from the Correctional Counseling Institute’s dir ector to its executive director. Generally , the circumstances relate to a Marc

h 1999 soc ial gat

herin g with Judg e Brown and his wife and the director a nd an employee of his on Judg e Brown ’s boat. We can glean no relevance to the issues in this case. The petitioner providesno author

ity t hat he ca n take hisown leg al fishing trip to ask questions regarding anyone that Judge Brown happens to meet. As previously noted, the post-conviction court had the discretion to determine the admissibility of evidence and its re levance to the case. There isno merit to this cla im.
DISCOVERY REQUESTS
The petitioner contends that the post-convictioncourt impr operly refused to allow discovery relating to certain

matters i nvolving

Judge Br own’s tes timony . He ref

ers to a le tter thatthe postconviction court sent to Judge Bro wn on Janu ary 19, 20 01, i n whic h the c ourt n oted t hat J udge Browntold the c ourt’s le gal a s sistant that he had reviewed his calendars or journals to allay any concerns he had regarding his testimony about facts or events that occurred eight y

ears earlier. The court advised Judge Brown to notify the court and

counsel i f

something developed from his review. Partly in respo nse to the le tter, the pe titi oner fi led a m otio n seek ing a rehear ing, a new trial , and, alternatively, a

reconsiderat

ion. Among other things, the motion sought complete discovery regarding Ju dge Brown’s comments to the post-conviction court’s legal a ssistant. The inference made by the petitioner wasthat Judge Brown had appare ntly viewed s ome of his testimony to be in
error. The court denied the motion without al lo win g fu rth er t est im ony f rom Ju dge Bro wn. It assumed for argument

sake that Judge Brown

was acknowledging that his conver sation with Rev. Strother was by telephone, not in pe

rson as he had prev iously described. The court concluded that the change wo uld not alt er its view of Judge

Brown’ s credib ility

or its find

ings. We n ote that a secondorder of denial entered by the post-conviction court reflects that the petitioner filed a second motion to reconsider.
The petitione

r contends that he

was entit led to question Judge Brown under oath in order to as se ss th e c ha ng es , i f a ny, in Judge Brown’s recollections that would bear on his credibility or the bias claim. He

asserts t hat even though Judge Br

own did not

o ffer any

new information, the-25-

petitioner and the post-conviction court should be allowed to make th eir own assessment of such information by means of

a hearing. The

state respondsthat the c ourt lost ju risdictio n of the c ase, so the petitioner was not entitled to a hearing or discovery . We agree with the state.
The post -conv icti on cou rt ent ered it s jud gment d enying t h e petitioner relief on January 7, 2001. It issued the let

ter to Judge Brown, with copies to counsel, on January 19, 2001. The petitioner filed his notice of appeal and motion for a transcript of the proceedings for appea l purposes January 22, 2001. The petit

ioner’s first

motion for relief from the post-conviction court’s judgment was filed on February

16, 2001.
Unless otherwis e provided by a statute or rule, a trial co urt’s jurisdiction over a case ends upon the filing of a notice of appeal. See State v. Pe nderg rass , 937 S.W.2d 834, 837 (Tenn. 1996). The filing o f the notic e of appe al vests ju risdictio n in the ap

pellate c ourt. Any

filing in the trial court and any action by that court a

fter the notice of appeal is filed are e ffectively nullities. In the present case, the post-conviction court had no jurisdiction to order the discovery requested by

the petitioner. Thus, there is no merit to this issue.

INEFF ECTIVE ASSISTA NCE OF C OUNSEL
Most of the petitioner’s complaints and assertions relate to his trial attorney , Mr. Bowman. He also asse

rts that he

has over come the presumpt

ion of wa iver so a s to allow h

im to pursue

his claim of ineffective assistance of his trial counsel. He r elies upon matters he claims were discovered after his motion for new trial hearing, such as, the affidavit of Da na Rogers in which Mr. Rogers stated that he wa s a forme

r boy friend o f the vic tim and tha t the victim made numerous false criminal charges ag ainst him. R ev. Strother testified that he obtained the affidavit and relay ed it to Mr. Bowman in 1995. First, we believe that the pet itioner mi sa pprehends the status of his claim against trial counsel. The petit

ioner ra ised and l itigate d this claim at the mot ion for ne w trial he aring. He did
so at his peril. The fact that he had not discovered certain circumstance s regarding counsel does not negate the fact that he had take n the opportunity to present his claim at that time.
A ground for reli ef is p re viously determined if a c ourt of competen t jurisd iction ha s ruled on the merit s after a

full and f

air hearing. A

full and f air hea ring ha s occurr

ed wher e the pet itioner is afforded the opportunity to call witnesses and other wise present evidence, regardless of whether the pe titioner actually introduce d any evidence.
Tenn. Code Ann. § 40-30-206(h). Moreover, this court has concluded that a llegations of additional facts to support

a claim f or relief may

not overc ome the f

act tha t the claim has bee n previou sly determined. See Cone v. Sta te , 927 S.W.2d 579, 582 (Tenn. Crim. App. 1995). I n this resp ect, the petitioner has neither alleged nor shown that his failure to discove r the ne w information resulted-26-

from improper state conduct or other such conduct that might ra ise a due process issuewhich might ov ercome the rule of previous determination. See, e .g. , Sample v. St ate , 82 S.W.3d 267 (Tenn. 2002). Thus, with

the petiti oner ac ting as h is own cou

nsel at the

new tria l motion hea

rin g , any failure to prese

nt all factual base s for his c laim ag ainst tria l counsel falls at h is feet. T

he postconvicti on court p

roperly limited the petitioner’s claim to the issue of the ineffective assistance of appella te counsel with the record for review being limited to the original trial and the hearing on the motion for

a new tri al.
At this point, we note that the petitioner repeatedly refers to “cross-over” effect from J udge Brown’s actions – which he claims were biased – to the issue of ineffe ctive assistance of t rial counsel. We need not revisit the petiti oner’s c laims against Judge Brown. Suffice it to say that our conclusion that the trial court properly found that Judge Brown was not biased forecl oses this avenue of the petitioner’s attack.
Due process of

law requ ires that a criminal defendant be entitled to the effective a ssistance of counsel on appeal. Campbell v . State , 904 S.W.2d 5 94, 596 (T enn. 1995 ); Evitts v. Lucey , 469 U.S. 387, 105 S. Ct. 830 (1985). The test by which we c onsider the effectivenes s o f appell ate counsel is the same

as that fo

r trial c ounsel. U

nder the Si xth Amendment , when a claim of ineffective assistance of trial counsel is made, the burden is on the petitioner to show (1) that counsel’s performance was deficient and ( 2) that the deficiency

was prejudicial in terms of rendering
a reasona ble proba bility that the r esult of th e trial w as unrel

iable or the proc eeding s fundame ntally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2 064 (1984 ); Statev. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). Also, in reviewing counsel’s conduct, a “f air assessment of attorney performance requires that eve ry eff ort be made to e limi nate the distorting effects of hi ndsight, to reconstruct the circumstances of counsel’s c hallenged conduct, and to evaluate t h e conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689 , 104 S. Ct. at 2065 ; see Hellardv. State , 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the fac t that a particul ar strat egy or tactic failedor even h

urt the de fense does not, alone, support a claim of ineffective assistance. D eference is made to tr

ial strat egy or tactic al choic es if

they are informed

ones based upon adequate preparation. See Hellard , 629 S.W.2d at 9.
Relative to appellate counsel, the pet itioner contendsthat coun sel incor rectly advised h

im regarding not raising on appeal the issue of the ineffective assistance of trial c ounsel and imprope rly failedto raise the issue on appeal. Unquestionably , the circumstances of this case reflect that appell a te counsel was legally incorrect in telling the petitioner that the ineffective c ounsel issue could be raised in a subsequent po st-convi c tion case and should not be raised in the appeal of the conviction. We ack nowle dge that appellate counsel was attempting to follow this court’s previous admonishm

ents about raising the issue of trial counsel’s effectiveness in the direct appe al, warning that such a practice is “fraug

ht with peril.” See, e .g. , State v. Anderson , 835 S.W.2d 600, 606 (Tenn. Crim. App. 1992); State v. Jimmy L. Sluder , No. 1236, Knox County (Tenn. Crim. App. Mar. 14, 1990) (refusing to decide the issue and st ating t hat it could be raised later in a post-conviction action). However, on ce the petition er raised the issue in his motion for new trial and developed-27-

extensive proof, counsel should have recognized that the failure to appea

l this litig ated issu e would leave the matter as a previously determined issue.
In any eve

nt, we conclude that the petitioner has not shown that his co nvictions , sentenc es, or lost appeals resulted from the ineffective assistance of counsel. First, we note that the petitioner’s brief on this issue provides little detail, little explanation of the fac ts support

ing his assertions, and littlereason ing. He starts with “examples” that he say s show the “cross-over effect of judicia l bias.” The examples relate to Judge Brown’s (1) hindering the petitioner’s ability to develop a “ fruit of the poisonous tree” claim, (2) having the petitioner sent to the DOC and chang ing the new trial motion hearing date, thereby

causing loss of wit

nesses, ( 3) hinder

ing the p etitioner ’s devel opment of his “Mystery Witness/Campbell/Caldwell/Henderson” claim, and (4) h indering the petiti oner’s a

bility to preserve a

claim regarding g

randjury tampering. Unfo

rtunately, the petiti oner doe s not explain either the facts behind each claim or how any facts or la w would pr

ovide him r

elief fr om his convictions or sentences.
He then presents an “example” showing that the preponder ance of the evidence is ag ainst the trial court’s finding s. He note s that he c laim ed co unsel should have investigated DNA evidence reflecting that sperm found in the petitioner’s examining room belonged to the petitioner. The peti tioner’s ex-wife had testified that they knew she was pregnant “by August.” The petition e r correctly notes that the rape charge wa s in July but that the trial court incorrectly concluded that the rape was August. Based upon this mistake, the trial court stated that if the petitioner had testified that the sper m could ha

ve existed because of sperm count tests f

or pregnancy

purposes , “the defense
case would hav e self-d

estructed.” Nee dless to say, the trial court’ s reliance uponthe rape occurring in August was in error. However, the petitioner does not explain how this error renders th e trial court’s conclusion that the petitioner received effective assistance to be error. Moreover, t h e petitioner providesno other e

xamples, on

ly asserting that the“evidence and record pre ponderates against the majority

of lower court’s findings aga inst Ali.” Finally , the petitioner a sserts the following

regar ding ap pellate c ounsel: Appellat e c oun sel rendered deficient performa nce, and prejudiced

Ali again, in 1995 by

giving him wrongadvice on waiver of Ineffective Counsel issue and by failing to raise other

issues which had reasonable probability of success. “Fruit of

the Poisonous Tree”, “Mystery Witness” and “Grand

Jury Tampering” cla

ims were ripe for review “as is” (as developed pro se ). EXAMPL E: the lower court found FACTUAL MERIT in “Frui t of the Poi sonous Tr

ee” cla im(R, II @ 226 & n. 3, 269). Ali cited McLaughli n , 500 U.S. 44 and Wong Sun , 371 U.S. 47 1 in his Amended Motion or [sic] A New Trial dated 2/4/94 (Ex hi bi t 1 8, II @ 6-7), thus, this claim had LEGAL MERIT as well; Huddleston , 924 S.W.2d 666.-28- The lower court denied relief mainly due to the imperfect quality of Motion for

a New Tr ial pro se record, which

was caused by the cros s-over e

ffect o f judicia

l bias and errors
. The evidenc e in rec ord prep onderat es aga inst the majority of lower co urt’s findings ag ainst Ali.
The cumulative-effect

of all factors and errors should tip the scale in Ali’s favor under the second prong of Strickland

. The conclusory a

nd limited arguments in the petitioner’s brief are insufficient to justify relief. I

f the petitioner provi des on ly “exam ples, ” it i s not our jo b to ru mmage t hrough the record to find other “examples.” As to the examples given, thepetitioner does not specify and w e have not found any prejudice related to them.
The “Fruit

of the Poisonous Tree” claim relates to the fact that the pe titioner’s passport was appare ntly given to private citizens by

law enfo rcemen t for the p urpose of aid ing in pur suin g and returning the peti tioner who had fled to Egy pt. The “Mystery

Witness” claim is related to the “Poisonous Tree” claim in that it is based upon the state’s witness, Paul Caldwell, who went to Egy pt and induced the petitioner’s return to the United States.
The convicti ng tria

l transcr ipt reflects th at Mr. Caldwell contracted with the petitioner’s bonding company , as a bounty hunter, t o locate and retr ieve the petitione r from Eg ypt . Mr. Caldw ell acknowledged

using an alias of Bob H enderso n and having othe r associ ates usin g alias es. He stated that he loc ated t he pet itio ner and talke d wit h him about retur ning. He said the p etitioner refuse d to leave Egy pt and off ered him various sums of money to leave him alone. Ultimately, Mr. Caldwell got the petitioner to return to the United States by using “psyc

hological measures.”
At the new trial motion hearing, the petitione r compla ined that Mr. Caldw ell was a

surprise witness who had not previously bee n disclosed to the defense. The petitioner asserted that

the state soughta con tinuance

to obtain th

e prese nce of “ Paul Campb ell” but th at Paul Cal dwell wa s t h e witness called. The state

noted tha t the def ense neither objected to the witness testify ing nor sought
a delay to allow fur

ther defense preparation. Thus, any objection at the time of the motion for new trial was waived.
Un fo rt un at el y, the petiti oner doe s not spec ify in his b rief

the issue to which Mr . Caldwell relates

. If he

is still comp laining

about Mr. Caldwell

being a surprise witness and the failure of his counsel to object

to him, he h as not pro vided wha t, if any thing, ha s been uncovere d that would have
a reasonable probability

of changingthe r esult in his trial. In other words, he has not shown any improper prejudice because of Mr. Caldwe ll’s testimony. Perhaps the petitioner’s complaint regarding Mr. Ca ldwell relates to the “poison ous tree ” claim. In another part of his brie f, the petitioner claims that his passport was imprope r ly released-29-

to private citizens who took it overseas and lied about being FB I agents. As pr eviously discussed, in complain

ing about Judge B rown not a llowing t he petitio ner to ca

ll witnesse s at the new t rial motion hearing , the petitioner’sbrief a sks if the b ounty hunters a cted in c oncert with state a gents, what was the chain of custody of the passport, and when was he brought before a magistrate for arraignment

after a warran tless arr est. He r aises the se conce

rns in the co ntext of viol ation of h is Fourth Amendment rights and invokes the fruit of the poisonous tree doctrine by which items and statements derived from an illegal searc h or seizure may not be use d as evidence. Unfortunately, thoug

h, the petitioner does not specify what items or statements aresubject to suppression. In any

event, we seeno merit to the petitioner’s claim. Even if the bounty hunters were acting on behalf of

the State of Tennessee, the petitioner admitted that he returned vo lu nt ar il y. Thus, no seizure occurred in Egy pt. As importantly for trial purposes, the fact that he may have been “duped” regar

ding the bounty hunters’ authority

does not bar his prosecution in Tennessee. See, e .g. , Statev. James Blanton , No. 01C01 -9307-CC- 00218, Che atham Coun ty, slip op. 32-37 (Tenn. Cr im. App. Apr . 30, 1996) (holding that “ille gal” kidnapping of defendant in Mexico by FBI ag ents and return to the United States did not bar the defendant’s trial and conviction), aff’d , 975 S.W.2d 269, 285 (Tenn. 1998) (expressly a ffirming the issues decided in the Court of Criminal Appeals).
Relative to his claim of b eing he ld forty-eight

hours with

out an ar raignm ent, it appears that he is referring to the circumstances sur rounding his return from

Egypt. I n this respect, we note that the petitioner was already indicted and that

a capias had issued for his arrest once his fug itive status had been learned. Obviously , his arrest or detention cannot be considered “wa rrantless.”
Relative to his “Grand Jury Tampering ” claim, the petitioner relies upon his trial attorney ’s affid avit filed a t the n ew tri al mot ion h earing w hich s tates the fo llow ing:

On Thursday, F

ebruary 1, 1990, I began r

ec eivin g information concerning the allegations contained in the fo regoing motion. I received additional information on Wednesday, Fe bruary 7, 1990. Neither I, a nyo ne in my empl oy, nor the def endant, have had any contact with any grand juror, no r to my knowledge did any one abovenamedsolicit an

y ot her per son for th

is informa

tion. Nev erthele ss, ba sed upon infor

matio n and

belie f, I state the f oreg oing [sic]. Investigator

Sam Reed appear ed as t he only Grand Jury

witness in this cause. One grand juror excused himself from voting in this case. Thereafter, following the testimony, the Grand Jury voted a “no tr

ue” bill, the vote being eleven for and one against. Thereafter

the witne ss was allowed to return to the Grand Jury room, not for the purpose of giving testimony

but for the purpose

of influe ncing th e re calcitrant grand juror into chang ing his or her vote. Afte r two subse

quent vote s, said grand juror did in fact chang e her vote. Ad di tionally, upon information and belief, I

state that the witness falsely te stified to the GrandJury that the defendant had “ confessed” to thecrime s in the-30- indictmen t. The state has provided all statements of the defendant to counsel and I am awar

e of no statement by

the defendant

that can be characterized

as a con fessi on. I am further advised tha t when requ ested by a grand juror to produce said state

ments, the

witness declined to do so.
At the new tr

ial motion h

earing , Judge B rown vie wed Mr. B owman’s a ffid avit as bear ing on the petitioner’s claim of newly discove red evidence. He noted that a motion to dismiss the indictment had not been filed before trial and deemed the issue waived. SeeTenn. R. Cr im. P. 12(b)(2). The petitioner sought to call witnesses, apparently including a grand juror, but Judg e Brown deemed themunnecessary

given his ruling. The petitioner did not testify or question Mr. Bowman about the circumst ances su rroundin g this issu e as it wou ld relate to the ineffectiv e assista

nce of c ounsel.
We perceive a fundamental problem with the petitione r’s claim, even taking Mr. Bowman’s affida vit as true. The affidavit provi des that th e informa tion came to Mr. Bo wman’s a

ttention in February 1990. The original indictment against the petitioner was re turned in December 1989

. However, the trial

court dis missed tha

t indictme

nt and ord

ered tha t any resubmiss ion of the

case occur befo re a new grand j ury to be selec ted on March 1, 1990. The indictment under which the petitioner was tried and convicted was returned on March 12, 1990. Any tainting of the grand jury returning the original indictment could not carry over to the new grand jury and new indictment. The petitioner has not specified how this claim could result in relief from his conviction.
Other than pre viousl y no ted, the petitioner’s brief does not point to any evidence showing the ineff ective a ssist ance of counsel. We have reviewed the record and the various claims of ineffective assistance of counsel presented by the petiti oner at b oth his new trial and post-conviction hearing s. The post-conviction court made detailed findings reg arding the petitioner’s claims about counsel. It found in many of them that Mr. Bowman’s conduct was reasonable and tactical in nature. It found no prejudice to the petitioner from Mr. Bowman’s actions o r lack thereof. In thi s respect, the court concluded that there was no probability that an appea l on the issue of ineffective assistance of trial counsel would have been successful. We agre e. We see nothing in the record that entitles the petitioner to relief from his convictions and sentences based on his claim of t he ineffective assistanc e of coun sel at tri al or on a ppeal.
In consideration of the for egoing and the r

ecord a s a whole, we affirm the judgment of the post-con viction c ourt.

___________________________________ JOSEPH M. TIPTON, JUDGE