William Glenn Wiley v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 6, 2012 Session

WILLIAM GLENN WILEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 95-C-1918 Walter Kurtz, Senior Judge

No. M2012-00158-CCA-R3-PC - Filed January 7, 2013

The petitioner, William Glenn Wiley, appeals the denial of post-conviction relief from his
convictions for first degree felony murder and aggravated robbery, arguing that he is entitled
to a new trial based on “the State’s systematic late-disclosures of exculpatory evidence,”
which rendered his trial counsel presumptively ineffective under United States v. Cronic, 466
U.S. 648 (1984). In the alternative, he argues that he received ineffective assistance of
counsel under the Strickland standard based on counsel’s inadequate response to the late-
disclosed evidence and failure to call two exculpatory witnesses at his trial. Finally, the
petitioner argues that he is entitled to a new post-conviction evidentiary hearing because of
the post-conviction court’s denial of his request for a continuance and an order to have the
potentially exculpatory fingerprint evidence analyzed. Following our review, we affirm the
post-conviction court’s denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and J OHN
E VERETT W ILLIAMS, JJ., joined.

Edward M. Yarbrough and Andrew J. Ross, Nashville, Tennessee, for the appellant, William
Glenn Wiley.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor
S. Johnson, III, District Attorney General; and John C. Zimmerman and Shannon Poindexter,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS and PROCEDURAL HISTORY
 In 1995, the petitioner was convicted in the Davidson County Criminal Court of the
first degree felony murder and especially aggravated robbery of Frank Andrews, for which
he received concurrent sentences of life without the possibility of parole and twenty-five
years, respectively. His convictions and sentences were affirmed by this court on direct
appeal, and our supreme court denied his application for permission to appeal. State v.
William Glenn Wiley, No. M1999-02487-CCA-R3-CD, 2001 WL 400390, at *1 (Tenn.
Crim. App. Apr. 20, 2001), perm. app. denied (Tenn. Oct. 8, 2001).

The petitioner then filed a post-conviction petition, which resulted in the post-
conviction court’s granting him a new trial based on the trial court’s failure to instruct the
jury on second degree murder as a lesser included offense to first degree felony murder.
After this court affirmed the judgment of the post-conviction court, both the State and the
petitioner filed applications for permission to appeal to our supreme court. William Glenn
Wiley v. State, No. M2003-00661-CCA-R3-PC, 2004 WL 2185959, at *1 (Tenn. Crim. App.
Sept. 23, 2004), perm. app. granted (Tenn. Feb. 28, 2005). Our supreme court granted both
applications, reversed the judgment of this court, and remanded for new trials on both
convictions. Specifically, the court concluded that the petitioner was not entitled to post-
conviction relief on the basis of the trial court’s failure to instruct the jury on second degree
murder as a lesser included offense because State v. Burns, 6 S.W.3d 453 (Tenn. 1999), did
not establish a new constitutional rule that had to be applied retroactively to post-conviction
cases, but that the petitioner was denied his constitutional right to effective assistance of
counsel because counsel failed to request a jury instruction on second degree murder and
failed to pursue and assert the defense of self-defense. Wiley v. State, 183 S.W.3d 317, 330-
33 (Tenn. 2006).

Following his retrial, the petitioner was again convicted of first degree felony murder
and especially aggravated robbery. The jury sentenced him to life without parole for the
murder conviction, and the trial court sentenced him to a concurrent term of twenty years for
the especially aggravated robbery conviction. This court affirmed the judgments on direct
appeal, and our supreme court denied his application for permission to appeal. State v.
William Glenn Wiley, No. M2007-01299-CCA-R3-CD, at *1 (Tenn. Crim. App. Sept. 29,
2009), perm. app. denied (Tenn. Mar. 15, 2010). The State’s proof at trial established that
the victim was found murdered in Room 309 of the Knights Inn in Nashville, where the
petitioner worked as a caretaker and lived in Room 325 with his girlfriend, Michelle
Scheffel. Our direct appeal opinion provides the following summary of the evidence
presented at the petitioner’s retrial:

Betty Andrews, the victim’s mother, testified that the victim, Frank
Andrews, moved from Orlando, Florida, to Nashville, Tennessee, . . . with the
hope of becoming a famous musician. Andrews said that the last time she

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talked to her son was the Saturday before his death. Approximately two weeks
before her son moved to Nashville, he received a settlement for his injuries
from a car wreck. Andrews stated that her son regularly carried a wallet and
a money clip in his pockets. She stated that her son had many health problems
throughout his life and that her son had been released from the hospital for a
blood clot in his left leg approximately one week before his death. She also
said that her son was an alcoholic, was 37, and was approximately five foot
seven or eight inches tall and weighed between 130 and 137 pounds at the time
of his death. He was in poor health when he moved to Nashville.

Jim Stevens, a lieutenant with the Metropolitan Nashville Police
Department's Strategic Development Division, testified that he was a Master
Patrol Officer at the time he worked on this case. On June 6, 1995, at
approximately 5:00 or 5:30 p.m., he and Officer David Korman, a trainee,
were dispatched to Room 309 at the Knights Inn at 1360 Brick Church Pike in
Davidson County, Tennessee. Lieutenant Stevens stated that he found the
victim’s body partially submerged in the bath tub with the head face down in
the toilet. At the time, he could not tell whether the victim was male or female
because of the victim’s long hair and small frame. As they entered the room,
he noticed that there was a large blood stain and broken glass on the bed. He
noted that the position of the body did not look natural, and he saw a cord and
wadded money and a small amount of blood in the tub. There was blood in the
toilet, but he did not see any vomit in or around the toilet. He checked the
body for a pulse, and then he and Officer Korman backed out of the hotel
room. As they were leaving the room, Lt. Stevens said that he noticed that
there were also a few small pieces of glass on the floor and a towel with blood
on it next to an air conditioner near the door. As they were exiting the room,
medical personnel arrived. He accompanied one of the medical personnel to
do an examination of the body after telling the individual not to touch anything
in the room.

Lieutenant Stevens said it was his job to preserve the crime scene,
rather than to investigate it. He positioned Officer Korman in front of the door
to the hotel room so that no one other than law enforcement entered the room.
He also told Officer Korman to keep a log of the detectives and investigators
that entered and exited the room. Once he established the crime scene
perimeter at the front door to the hotel room, he called the identification
technicians, the homicide investigators, and his sergeant to the crime scene.
Once the homicide investigators arrived, they asked him to extend the crime
scene perimeter to the entire third floor of the hotel.

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 Johnny L. Hunter, a retired sergeant with the Metropolitan Nashville
Police Department, testified that he was a crime scene investigator at the time
that he responded to the scene at the Knights Inn at 6:00 p.m. on June 6, 1995.
When he entered the room, he saw a large area of blood and some broken glass
on one of the beds. He said the victim was in the bathtub “with his head over
the toilet, almost in the toilet.” The victim’s hair was wet, and he had a
significant amount of blood on the hem of his shirt. The victim’s pockets had
been pulled inside out, and there was a closed pocket knife on the floor near
his waist. The bathtub had smears of blood on it, and he observed two cords,
a telephone cord and an electrical cord from the lamp in the room, in the
bathtub. There was also a footprint in blood at the end of the tub. He also
observed a towel with blood on it next to the air conditioner and a broken
bottle on the floor outside the bathroom near the beds. He supervised the
collection and documentation of evidence from the room. Hunter identified
several photographs of the victim, which depicted the victim’s face and head
with lacerations on the top left temple and lacerations on the back of the head,
the victim’s hand with blood on it, and the victim’s arms with abrasions on his
left and right elbows.

Tommy Simpkins, an officer with the identification department of the
Metropolitan Nashville Police Department, testified that he arrived at the crime
scene on June 6, 1995, and helped collect evidence from Room 309. This
evidence included a towel with blood on it, an electrical cord, a telephone
cord, money, a pocketknife, and a suitcase. The telephone cord was tan in
color and had been tied in knots to form loops. The electrical cord was black
in color, had been cut several times, and had been tied in knots. Both cords
were found in the bathtub. He said he also took some photographs of Room
325 because it was believed that the suspects may have been staying there. In
addition, he collected a pair of size nine work boots with a substance appearing
to be blood across the top of one of the toes found in Room 201, which was a
floor below where the victim was found. The boots were not sent to TBI to be
tested.

Marsha Brown, an officer for the crime scene investigation unit of the
Metro Nashville Police Department at the time that she investigated this case,
testified that she was called to the Knights Inn on June 6, 1995, to investigate
a murder. Upon entering the crime scene in Room 309, she noticed a large
pool of blood and broken glass from a juice bottle on the bed closest to the
bathroom, broken glass from a juice bottle between that bed and the wall, a
broken vodka bottle in front of the dresser, and trash in the room. She also

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saw a bloody towel next to the air conditioner. In the bathroom, she saw the
victim’s body in the bathtub with his head over the commode. The victim had
blood on one of his feet. There was also money, an electrical cord, and a
telephone cord in the bathtub. She identified the telephone cord in the bathtub
as being from the telephone in Room 309. There was a pocket knife on the
bathroom floor near the victim. She also collected a bottle of medication and
numerous pills found in a suitcase. Officer Brown collected latent fingerprints
from a beer can on the night stand and the broken vodka bottle next to the
dresser in Room 309. She also investigated Room 325, where she noticed beer
cans, beer boxes, and that the beds were made. Officer Brown photographed
a pair of work boots in front of Room 201 that appeared to have blood on
them. She was unsure whether these boots were ever sent to TBI to be tested.
Officer Brown stated that there was no forced entry into Room 309.

Julia Hooper, a police identification supervisor with the Metropolitan
Nashville Police Department, was tendered as an expert in fingerprint
examination. She determined that fingerprints taken from the broken vodka
bottle and a beer can on the nightstand belonged to [the petitioner]. Hooper
said that she was never asked to make a comparison of the prints collected
with known prints belonging to Scheffel and the victim. She said there were
several other identifiable prints taken from Rooms 309 and 325 that did not
match [the petitioner’s] known fingerprints. These identifiable prints were
saved to the AFIS system in the computer so that future matches of these prints
could be made.

James Walker, a detective with the Evansville, Indiana Police
Department, testified on June 25, 1995, he was notified that [the petitioner]
had been arrested at the Arrowhead Motel in Evansville, Indiana. His
department notified the Metropolitan Nashville Police Department that [the
petitioner] was in their custody, and [the petitioner] was extradited to
Nashville.

Larry Flair, a retired detective with the Homicide/Murder Squad
Division of the Metropolitan Nashville Police Department, testified that he
was dispatched on June 6, 1995, to Room 309 at the Knights Inn. After
arriving at the crime scene, he was told that [the petitioner], the caretaker for
the motel, and Michelle Scheffel, [the petitioner’s] girlfriend, had begun
working at the motel on June 1, 1995 and had left the day of the murder. Prior
to their departure, [the petitioner] and Scheffel had stayed in Room 325. Flair
reviewed the motel’s employment records and obtained a copy of [the

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petitioner’s] employment application from the motel manager. He identified
the employment application as the one he received from the motel manager.
Flair attempted to locate [the petitioner] at the motel and at some of the
addresses listed on his application but was unsuccessful. He was later notified
by another officer that [the petitioner’s] fingerprints had been found in Room
309. Thereafter, he obtained a warrant for [the petitioner’s] arrest, which was
loaded on the computerized NCIC system. Shortly thereafter, Flair received
notice that [the petitioner] had been arrested in Evansville, Indiana. He then
took [the petitioner] into custody in Indiana. Flair identified [the petitioner]
for the court.

After receiving information about [the petitioner’s] arrest in Evansville,
Flair obtained the registration receipt from the Arrowhead Motel in Evansville,
Indiana, which showed that [the petitioner] and Scheffel checked into the
motel on June 23, 1995. He identified the receipt as the document that he
received from the Arrowhead Motel.

Flair said that he took [the petitioner] into custody in Indiana on June
25, 1995. He then obtained permission from Michelle Scheffel to search the
room she and [the petitioner] shared at the Arrowhead Motel, wherein he
discovered some of [the petitioner’s] personal documents. Flair stated that [the
petitioner] used his own name, rather than an alias, when he registered for the
room at the Arrowhead Motel. Flair also identified a pair of size 11 work
boots found in [the petitioner’s] room at the Arrowhead Motel. He also
identified a second pair of boots found in that motel room, and although they
did not have a size on them, they were only slightly shorter than the size 11
boots he had previously identified. Flair stated that the car in the parking lot
of the motel was registered to [the petitioner].

Dr. Ann Bucholtz testified that she was the chief medical examiner for
Davidson County in June of 1995. She was tendered as an expert in forensic
pathology. Dr. Bucholtz performed the victim’s autopsy and concluded that
his cause of death was blunt force trauma to the head. She observed several
lacerations on the victim’s scalp area, including one larger laceration and four
other superficial lacerations with bruises underneath in the area of the crown.
She identified two curved abrasions above the victim’s right eyebrow that
looked as if they occurred near death or after death. Dr. Bucholtz stated that
the victim’s injuries were consistent with being hit in the head with a bottle.
She also stated that the injuries indicated that the victim had suffered at least
two different blows to the head. The victim’s neck had no injuries, although

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she found evidence that the victim’s neck had been resting against an object.
Dr. Bucholtz opined that the injuries to the victim’s elbows, hands, and the
back of his hands could have been defensive wounds. There was no evidence
of a heart attack. There was also no trauma to the neck. She stated that
although the victim did not have any physical signs of seizure, this did not
mean that a seizure did not occur. She said that it is very difficult to determine
whether a person died of a seizure because a seizure is not easily observed and
documented in an autopsy. The victim’s vascular system was normal, and
there was no sign of an aneur[y]sm. There were no signs that the victim died
of acute intoxication. Although the victim did not have a fractured skull, he
had bruising on the scalp that confirmed the outside bruising she observed on
the skin related to the abrasions above his eyebrow. Dr. Bucholtz’s
microscopic examination also confirmed that the victim died of blunt force
trauma. She stated that although the victim had a blood alcohol level of .34,
this amount would not necessarily have been fatal to him if the victim was a
chronic drinker. Dr. Bucholtz said that she did not recall having information
that the victim had a seizure disorder at the time of the autopsy. When asked
about whether the victim could have died of positional asphyxia or hanging,
Dr. Bucholtz maintained that the victim’s cause of death was blunt force
trauma. She stated, “[T]here were no other findings I thought were significant
in an autopsy to cause the death.” Although alcohol or a seizure could have
contributed to the victim’s death, Dr. Bucholtz said, “[T]he final cause of
death in my opinion is still blunt force trauma.” She said that she was unable
to change her opinion as to the victim’s cause of death based on the evidence
presented to her during cross-examination.

Michelle Scheffel, [the petitioner’s ] former girlfriend, testified that in
June of 1995 she and [the petitioner] had a child who was two or three months
old. She identified [the petitioner] for the court. She state[d] [that] she and
[the petitioner] worked at the Knights Inn for approximately one week before
leaving. While they were at the Knights Inn, she met the victim, although she
did not know his name. The day they left the Knights Inn, she had seen the
victim and [the petitioner] drinking beer in the motel room that she shared with
[the petitioner]. She and [the petitioner] got into a “little bit of a physical
fight” because she wanted the keys to the car to go get some cigarettes. The
victim told [the petitioner] to leave her alone and take his hands off of her, and
[the petitioner] let go of her. [The petitioner] and the victim left the room.
Approximately an hour later, Scheffel took her baby and went to the victim’s
room to look for [the petitioner] so that she could get some cigarettes. When
she knocked on the victim’s room, no one answered the door. When she came

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back a short time later and knocked on the door again, [the petitioner] pulled
her inside, and she saw [the petitioner] and the victim fighting. Once she
entered the room, [the petitioner] and the victim continued fighting, although
she could not determine what they were fighting about. Then she saw [the
petitioner] hit the victim on the head with a bottle, which knocked him to the
floor. Although she did not initially see any injuries to the victim when she
first entered his room, the victim began bleeding when [the petitioner] hit him
with the bottle. She did not notice any injuries to [the petitioner] while she
was in the victim’s room. When [the petitioner] hit the victim with the bottle,
glass from the bottle shattered everywhere, and Scheffel took her baby back
to their room. Scheffel said that she cleaned the victim’s room everyday as a
part of her job as housekeeper, and she never noticed any cut cords or damaged
property. About fifteen to twenty minutes after she left the victim’s room, [the
petitioner] came to their motel room and told her that the victim was calling
the police and that they had to leave. Scheffel said that [the petitioner] owned
a buck knife that he carried in his pocket. She also stated that the victim was
“a lot smaller” than [the petitioner]. She believed the victim weighed
approximately 150 pounds, although the autopsy report said that he weighed
187 pounds.

[The petitioner] never told her what happened between him and the
victim after she had left the victim’s room. She noticed that [the petitioner]
had some small cuts on his knuckles and a few blood splatters on his shirt
when he returned to their room. Scheffel grabbed some of the baby’s things
and went to sit in the car. [The petitioner] packed the rest of their belongings,
put them in the car, and they left the Knights Inn to go to Clarksville. They
made one stop, where [the petitioner] changed his clothes, and he threw the
clothes he had been wearing into the garbage bag full of their belongings.
Scheffel also remembered [the petitioner] throwing what she thought was a
wallet out of the window. She said that they had only a few dollars when they
left the Knights Inn, and she believed that they left the Knights Inn without
their paychecks. She and [the petitioner] spent a few nights at a motel in
Clarksville before camping for two or three weeks at the Land Between the
Lakes. From there, they drove to Evansville, Indiana, and stopped at the
Arrowhead Motel. After staying there for a while, she heard a knock on their
room at the Arrowhead Motel. She answered the door and saw several
Evansville police officers with their guns drawn. They ordered Scheffel to the
ground; she told them there was a baby inside, and they lowered their weapons.
The officers made Scheffel sit near their police cars and told her to write down
everything that had happened because her mother had filed a missing persons

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report. When the officers later interviewed her, they told her that [the
petitioner] was a suspect in a murder in Nashville, Tennessee. They asked her
what she knew about the murder, and she told them that she did not know the
victim and did not know anything about his murder, which was not the truth.
She talked to [the petitioner] after she talked to the Evansville Police
Department because she wanted some answers about what was happening.
[The petitioner] told her only that the police had him now, and he was going
to prison. [The petitioner] urged Scheffel to stay with his mother, who was at
the police station, for a little while, which she did. At about 12:45 a.m. or 1:45
a.m., Scheffel spoke to officers from the Metropolitan Nashville Police
Department and again stated that she did not know anything about the victim’s
murder. She said [the petitioner] never told her what happened between him
and the victim in the motel room after she left.

After [the petitioner] was transported to Nashville, Scheffel gave a tape
recorded statement to Detective West in Nashville that varied from the other
two statements she had given to the Nashville and Evansville officers. She
told Detective West that she had seen the victim, and she described what she
had seen in the victim’s motel room before she left. She explained the reason
that she had previously been untruthful to the Evansville and Metro Nashville
officers:

I was scared, in shock, I didn’t know what to say. And after,
you know, I had time to think about it, it started to wear on me.
And [Detective] West, he was, he seemed to be nice, and he told
me if I had any information to give him a call and he would sit
down and talk with me, and so I gave him a call.

Scheffel admitted that she had been charged with simple marijuana
possession several years before, but this charge was expunged after she called
a probation officer for six months. She also became aware that she had written
three checks to Walmart in 1996 for insufficient funds when she tried to buy
a house. She repaid Walmart and was never formally charged regarding the
checks.

Scheffel acknowledged that she told Detective George in Evansville
that she and [the petitioner] met another couple that were taking over the maid
and groundskeeper positions at the Knights Inn and that [the petitioner] told
her to pack up her belongings because they were leaving the motel. She also
admitted telling Detective West in Nashville that she and [the petitioner] left

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the motel because they had met the other couple taking over their jobs, and
there was no point in working if they were going to get fired at the end of the
week. She also told Detective West that she did not see [the petitioner] hit
anyone with a vodka bottle and did not see [the petitioner] throw a billfold out
of the window of the car on June 25, 1995.

Glen John Glenn, a special agent forensic scientist with the Tennessee
Bureau of Investigation (TBI) Crime Laboratory of Nashville, testified that he
generated a report on the substances submitted by law enforcement in this
case. He identified twenty-seven tablets as Phenobarbital, a controlled
substance. He also identified several exhibits containing pills that were
controlled substances, including Methyltestosterone, Lorazepam, and
Alprazolam.

Bradley Everett, a special agent forensic scientist with the TBI Crime
Laboratory in the serology unit, testified that he was required to test a white
towel containing blood obtained by law enforcement in this case. Agent
Everett stated that he was asked to compare the blood on the white towel with
a sample of [the petitioner]’s blood. After conducting DNA testing, he
concluded that the blood on the towel belonged to [the petitioner].

[The petitioner] testified that in 1995 he was twenty-eight years old, and
he and Michelle Scheffel were dating and had a young child together. He,
Scheffel, and the baby moved to Nashville so that he could look for a job and
be closer to his mother who lived in Greenville, Kentucky. They first worked
at the Scottish Inn in Nashville. They stayed at this motel for only three days
because Scheffel did not like her housekeeping job. Then they began working
at the Knights Inn on a one-week trial basis; Scheffel worked as a
housekeeper, and he worked as a groundskeeper. Their work paid their rent,
and “if there was some extra, we [received] money for it.” [The petitioner]
said that he and Scheffel discovered that management had hired another couple
to replace them at the end of the week. [The petitioner] said that his job
required very little work and that he spent most of his free time drinking. He
also said that he had a drinking problem at the time and drank a case of beer
a day.

[The petitioner] said that he met the victim at the Knights Inn when he
was sitting by the pool drinking beer. [The petitioner] and the victim drank
together for a couple of hours and then went to the liquor store and bought a
bottle of vodka and some beer. They drank in [the petitioner]’s room for a

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while until Scheffel came in the room, and Scheffel and [the petitioner] had a
verbal argument. [The petitioner] said, “I have never put my hands on no
woman, never been arrested for no domestic violence, or nothing like that.”
[The petitioner] said he and the victim decided to go to the victim’s room to
get away from Scheffel. After arriving at the victim’s room, they drank Busch
beer, Budweiser beer, and vodka. After they had been at the victim’s room for
an hour, two women that he believed were prostitutes knocked on the door.
The victim talked to them a minute, gave them some money, and told them to
come back later that night. The victim knew the women, and it appeared that
the women had been at his room the night before. [The petitioner] and the
victim continued to drink, and the victim had a blackout, wherein the victim
asked [the petitioner] to give him some money to buy drugs and believed [the
petitioner] was a cab driver. [The petitioner] and the victim started arguing,
and then the victim “rushed” [the petitioner]. [The petitioner] said that he was
intoxicated at that time, and the victim was angry and intoxicated. [The
petitioner] said that when the victim “rushed” him, he hit the dresser with the
back of his legs, which made him sit down. The victim was “pushing [him]
and swinging, [and [the petitioner]] bowed backwards and . . . was trying to
push up off the dresser.” [The petitioner] felt the vodka bottle with one of his
hands, and he hit the victim one time on the head, but the blow “never phased
him.” [The petitioner] said the victim continued to swing at him. [The
petitioner] hit the victim a second time with the vodka bottle, and the victim
fell backwards on the bed. [The petitioner] claimed the vodka bottle did not
break until the second time he hit the victim with it. He denied hitting [the
petitioner] with the orange juice bottle that was found broken in the victim’s
room and said he did not know how the orange juice bottle had been broken.
[The petitioner] said he hit the victim two times because “[h]e had me off
balance, and he was in drunken rage. I mean, it was like [he had] unbelievable
strength.” Then the victim “raised up” from the bed and tried to say
something. [The petitioner] told him he was leaving, and the victim kept
trying to talk to him. He saw that the victim was bleeding, and he helped him
to the bathroom doorway. [The petitioner] said that he hit the victim with the
bottle a second time because “he was attacking me. He was bleeding. After
he raised up off the bed, I [saw] he was bleeding. He seemed that he could use
some help. I helped him to the bathroom.” He said that getting the victim to
the bathroom “was the extent of the help he needed” and that the victim
walked there on his own. As he got to the bathroom, [the petitioner] noticed
his nose was bleeding in the bathroom mirror, and he took a towel out of the
bathroom and cleaned the blood off of his nose. He said he did not have any
cuts on his hand that were bleeding at the time. He left the victim in the

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doorway to the bathroom. [The petitioner] said he did not remember seeing
any electrical and telephone cords in the bathtub, and he had no idea how the
cords got there. As he was leaving the motel room, he noticed the victim’s
wallet on the night stand, and he took the wallet and put it in his back pocket.
The wallet contained $240, which he removed and put into his own pocket.
He threw the towel in the room, picked up his cooler, and left. He said he took
the victim’s wallet to “get back [at him], drunk, I guess. He done attacked me,
he done cost me my job, [so I] just walked over and picked it up.” He said that
he did not use force to take the victim’s wallet because the victim was in the
bathroom at the time. [The petitioner] also said that when he hit the victim in
self-defense, he did not intend to take anything from the victim. [The
petitioner] denied robbing the victim, emptying his pockets, and beating him
up. He claimed he hit the victim with a vodka bottle “to get him off of me.”

[The petitioner] said that when he left the room, the victim “was alive,
he was talking, he was bleeding, and he was intoxicated.” He said he helped
the victim because he knew what it was like to be a drunk. [The petitioner]
took the victim to the bathroom so that he could “clean up, sober up, whatever
he needed to do.”

When [the petitioner] left the room, he, Scheffel, and the baby headed
for Greenville, Kentucky, but Scheffel was driving, and they ended up in
Clarksville. While they were driving on the interstate, [the petitioner] took the
victim’s wallet and threw it out the window of the car along with some paper
and some beer bottles. [The petitioner] said he never changed out of his
clothes with blood on them before checking into the motel in Clarksville. He
said that the clothes he had on when he left the victim’s room had been washed
with the rest of his clothes, and he kept the shoes he was wearing when he left
the victim’s room. [The petitioner] said that the boots collected from the
second floor of the Knights Inn that were introduced by defense counsel were
not his boots. He said that he, Scheffel, and the baby spent one night at a
motel in Clarksville and then went to his mother’s home in Greenville. Then
they went to the Kentucky Lake to camp. He said that he was not worried
about the police looking for him after they left the Knights Inn. After they
camped at the lake, he, Scheffel, and the baby returned to [the petitioner]’s
mother’s house. [The petitioner] picked up his unemployment check, and then
decided to go to Evansville, Indiana, because it was near his mother’s home
in Greenville, to see if he could find a job. Once they got to Evansville, they
got a room at the Arrowhead Motel, where he was later arrested. [The
petitioner] said the officers knocked on the door, he answered it, and they had

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their guns raised and told him to come out of the room. The officers told [the
petitioner] they had a warrant for his arrest out of Nashville. He initially
believed that this warrant was for theft. As he was taken to jail, an officer told
[the petitioner] that he had been arrested for murder, and [the petitioner] told
him that they had arrested the wrong person. Once he got to the police station,
he was taken into custody by the Nashville police. [The petitioner] believed
that his mother told the police where to find him.

[The petitioner] gave a tape-recorded statement to Detective West at the
Evansville police station. They talked for an hour and a half before Detective
West took a ten minute tape-recorded statement from him. [The petitioner]
was then extradited to Nashville.

[The petitioner] acknowledged that he signed the job application at the
Knights Inn. He stated that the glass bottle of orange juice was already in the
room when they returned from the liquor store. [The petitioner] said that he
had never been in the victim’s room prior to the time that he hit the victim with
the vodka bottle.

Arthur Woods testified that he was in prison at the South Central
Correctional Facility serving a seven to eight year sentence. Woods said that
he met the victim in Nashville at the Ramada Inn Lounge. The victim told him
that he had an audition on Music Row and said he needed a ride. Woods gave
him a ride to Kroger and gave him his beeper number in case he needed a ride
later. He said that the victim would give him gas money in exchange for
transportation. Later, the victim contacted Woods and asked him to bring him
a six pack of beer to his room. Woods brought him the beer and talked to the
victim for a few minutes. He left, and a short time later, Woods learned that
the victim was dead. Woods said that he only went to the victim’s room one
time. The police interviewed him because they found his beeper number in the
victim’s room. Woods said that he did not rob or kill the victim. He also said
that he did not have a key to the victim’s room.

Jeff West, an investigator with the Metropolitan Nashville Police
Department in 1995, testified that he and Detective Larry Flair led the
investigation in this case. West was dispatched to the Knights Inn on June 6,
1995, and attended the victim’s autopsy the next day. West said that Dr.
Bucholtz had told him that the victim’s cause of death was blunt force trauma
to the head. Because of Dr. Bucholtz’s findings as to the cause of death, West
obtained an arrest warrant for [the petitioner], charging him with the victim’s

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homicide. West interviewed [the petitioner] in Evansville, Indiana, where he
was arrested. He said that the officers in Evansville tape-recorded
approximately five minutes of his interview with [the petitioner], although he
talked with [the petitioner] for approximately an hour.

Clifford W. Mann, a former detective in the homicide unit of the
Metropolitan Nashville Police Department, testified that he investigated this
case in 1995 and canvassed the area around the Knights Inn for witnesses.
Mann called Dr. Conavey, who was listed on a pill bottle found in the victim’s
room, and asked for him to give him a call. Dr. Conavey told Mann that he
was treating the victim for high blood pressure, a blood clot in his left leg, and
an infection in his left ankle and had prescribed several medications for the
victim. Dr. Conavey also told Mann that he believed the victim was addicted
to painkillers. Mann also learned that Arthur Woods was acting as a cab driver
for the victim shortly before his death. Mann interviewed Woods but was
unable to confirm that Woods worked for any cab companies in Nashville.
During his investigation, Woods learned that the last time the victim was seen
alive was on June 5, 1995. Mann said that he turned all of his information
about Arthur Woods and Dr. Conavey over to Detective West.

Dr. Murray Smith, who was tendered an expert in addiction medicine,
testified that he was a consultant for the defense in this case. He considered
the autopsy report, the testimony from the pathologist, and the drug testing and
alcohol testing performed on the victim. He contacted Dr. Conavey, one of the
victim’s physicians, who told him that he had prescribed two anti-seizure
medications, Dilantin and Phenobarbital, to the victim. Based on the date of
the prescriptions and the number of pills remaining, Dr. Smith opined that the
victim was not properly taking his anti-seizure medication, which put him in
a high risk category to have a seizure. He also noted that the victim had an old
injury that resulted in a scar on the right frontal lower part of his brain, which
could have been the area where the victim’s seizures began before spreading
to the rest of his brain. He said that the toxicology report showed that the
victim had a blood alcohol level of .34, which was over four times the legal
limit. Dr. Smith stated that the victim was an alcoholic, and it was common
for alcoholics to have seizures. He also stated that an alcoholic can have a
seizure as they are going through withdrawal from the alcohol, even though
they still have alcohol in their blood stream.

Dr. Smith stated that people who have major motor seizures often start
thrashing or jerking, so it is important that they are positioned so that they can

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easily breathe. He also said that alcohol is a respiratory depressant, which
makes a person less aware that they are not getting enough oxygen. He said
that the position of the victim in the bathtub with his head over the edge of the
toilet bowl was an unnatural position that could have compromised his ability
to breathe. Dr. Smith stated that the combination of the victim’s stress about
the injuries and bleeding, his old brain injury, his high blood alcohol level, and
his failure to take his anti-seizure medicine placed the victim in a very high
risk category for a seizure. He said that even if the victim had been hit on the
head, he still would have been at risk for a seizure. However, he explained
that a failure to take anti-seizure medication does not guarantee that an
individual will have a seizure. He said that the fact that the victim suffered
blunt force trauma to his head made it more likely that he had a seizure.

Dr. O’Brien Cleary Smith, who was a former medical examiner and
who was tendered as an expert in forensic pathology, testified that he acted as
a consultant for the defense in this case. He reviewed the medical examiner’s
report, the autopsy report, the motel room investigation, and the records
regarding the victim’s medical conditions. He stated that Dr. Bucholtz’s report
showed that it was a partial autopsy, rather than a full autopsy, because it failed
to include the areas of the upper neck and tongue. He also claimed that Dr.
Bucholtz did not properly document her findings during the autopsy. He felt
the investigation of the motel room and the victim’s medical history were
incomplete.

Dr. O.C. Smith said that because of the victim’s unnatural position in
the bathtub with his head dangling over the commode, there was a possibility
that the victim’s breathing had been interrupted because of the compression of
his neck. In his opinion, the victim’s body was in a “lethal position.” He said
a person with a high alcohol level in the blood “runs the risk of irritating the
heart, and the heart is more likely to enter into a lethal arrythmia.” He also
stated that alcohol can depress the respiratory system and that if someone has
a seizure disorder, this can cause the person to have a seizure. Dr. O.C. Smith
said that he did not agree with Dr. Bucholtz’s conclusion that the victim died
of blunt force trauma to the head. He argued that Dr. Bucholtz “didn’t leave
enough documentation in there for me to have absolute confidence in what she
said she saw.”

Dr. O.C. Smith said that the evidence indicated that the victim could
have died from spontaneous bleeding into the brain because of his alcoholism,
from a subdural hematoma because of anticoagulant therapy, from a second

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impact to the head where there was an old injury, from his seizure disorder, or
from postural asphyxia. However, he did not believe that the victim died
because of alcohol poisoning because the evidence suggested that the victim
had a tolerance to alcohol. He argued that Dr. Bucholtz should have removed
the victim’s tongue during the autopsy because the neck area becomes
important because of the position of the victim’s body.

Dr. O.C. Smith acknowledged that the information he reviewed
indicated evidence of blunt force trauma. He also acknowledged that blunt
force trauma can cause an accumulation of blood inside the skull, which could
ultimately cause death. After reviewing the histology slides, Dr. O.C. Smith
believed that Dr. Bucholtz removed the victim’s brain first during the autopsy,
which caused him concern:

[A] classic mistake in forensic pathology, if there is a concern
about bleeding in the head, the rest of the body should be
opened first, because that pulls the blood down, the liquid blood
down and out of the brain tissues, because the danger is, there
is a lot of blood up there in the head area, and as soon as you
make a cut in there, you can actually induce bleeding into the
brain, leaking of blood into the brain but it can mimic things like
subarachnoid hemorrhage very easily.

Dr. Bruce Phillip Levy, the Davidson County Medical Examiner,
testified that he reviewed Dr. Bucholtz’s autopsy in this case. He said that the
autopsy was “a fairly typical standard medical examiner autopsy. I didn’t
notice any particular deficiencies in it at all.” He characterized Dr. Bucholtz’s
work as “a complete autopsy.” Dr. Levy concluded that the victim’s cause of
death was “blunt force injuries to his head” and that his injuries were
consistent with being hit over the head at least two times with a vodka bottle.
He explained that the evidence he reviewed in this case was not consistent
with the victim’s dying of a seizure.” Dr. Levy admitted that it is impossible
to see evidence of a seizure death in an autopsy.

To rebut [the petitioner]’s testimony that he had never hit a woman, the
State called Kimberly Wingate and Paul Snyder for impeachment purposes.
Kimberly Wingate testified that at 11:00 p.m. on July 18, 1987, [the petitioner]
and another man walked up to her car in the parking lot of Ray’s Grocery,
pulled her out of her car, and threw her on the ground. [The petitioner] then
asked her, “What the [f---] do you have to say about that?” Wingate got the

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 license plate number of the car in which [the petitioner] and the other man left
the scene, and she ran into the grocery store.

Paul Snyder testified that at 11:00 p.m. on July 18, 1987, he was in the
parking lot of Ray’s Grocery when he observed a large man pulling Kimberly
Wingate out of her car and throwing her to the ground. Snyder said that this
man was later identified as William Glenn Wiley [the petitioner]. The trial
court instructed the jury that they were to consider the testimony of Wingate
and Snyder only as it related to the credibility of [the petitioner] as a witness
and not as evidence of guilt of the offenses with which [the petitioner] was
charged at trial.

Id. at *2-11.

Among the issues that the petitioner raised on direct appeal was whether he should be
granted a new trial due to various Brady and Tennessee Rule of Criminal Procedure 16
violations that occurred during the course of his trial. Id. at *1. These included the State’s
delayed disclosure of various items of potentially exculpatory evidence, including the
following: evidence that unidentified fingerprints had been collected from the crime scene,
which defense counsel did not receive until the first day of trial; evidence that Michelle
Scheffel’s fingerprints were found on a beer bottle on a night stand in one of the rooms of
the motel, which defense counsel did not receive until the first day of trial; evidence of an
early interview of Michelle Scheffel in which she denied any knowledge of the victim or the
murder, which defense counsel did not receive until the trial; information about videotaped
statements of the petitioner and his mother and of the petitioner and Scheffel, of which
defense counsel was not notified until the third day of trial; evidence of a detective’s
supplemental reports about the crime, which defense counsel did not receive until after the
detective had already testified; and evidence of the receipt from the Arrowhead Motel, which
the State failed to disclose during discovery. Id. at *18-31.

After analysis, we determined that the various Brady and discovery rule violations,
viewed individually, constituted harmless error because none was prejudicial to the
petitioner’s ability to present a defense. We further determined that, although the number
of violations in the case was “disconcerting,” the various violations, viewed cumulatively,
did not result in reversible error. Id. at *27, 33. In a separate concurring opinion, Judge D.
Kelly Thomas, Jr., expressed his concern about the “numerous misdeeds” committed by the
State during the trial, which, in his view, would have required reversal of the convictions had
not the State’s evidence against the petitioner been so strong:

The record in this case reveals suppression by the State of a prior

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 inconsistent statement made by a key State witness. In addition, during the
five-day trial, several discoverable documents were delivered to the
[petitioner]. Evidently, delayed disclosure was so commonplace that the trial
court kept count of the State’s apologies. . . .

In light of the strength of the State’s evidence at trial, I agree that timely
disclosure of the documents and statement in question would not have altered
the result. The presence of unidentified fingerprints at the scene of the crime
does not change the fact that the [petitioner’s] fingerprints are on the murder
weapon. Likewise, the [petitioner’s] girlfriend’s initial denial of knowledge
concerning the murder does not change the fact that the [petitioner] admitted
hitting the victim in the head with a vodka bottle and taking his money. It is
the strength of the State’s proof that led to the majority’s holding that the
cumulative effect of the errors does not require reversal of the verdict. Again,
I agree. If the State’s proof was less convincing, I would conclude that the
cumulative effect of the numerous harmless errors requires reversal. As the
trial court admonished the State, “This is not a way to conduct a serious felony
trial.”

Id. at *43.

The petitioner filed a pro se petition for post-conviction relief on August 19, 2010,
in which he raised a number of claims. Following the appointment of counsel, he filed an
amended petition on July 22, 2011, in which he alleged that counsel were deficient, thereby
prejudicing his case, for failing to adequately respond to the State’s various evidentiary and
discovery violations and for failing to call two exculpatory witnesses at trial: Pamela Warden
and Dr. Conavey. The petitioner asserted that he was not trying to “relitigate the issues” that
were presented on direct appeal but that “the multitude of evidentiary, discovery, and Brady
issues that occurred during the trial of this case presented such an obstacle to defense counsel
. . . that they were rendered wholly ineffective by their response to the numerous violations.”

At the December 1, 2011 evidentiary hearing, Rick Berry, the private investigator who
worked with defense counsel on the case, testified that he and his associate conducted three
different interviews with Pamela Warden, who knew the victim and provided information
to them about his lifestyle and associates. During the course of those interviews, Warden
expressed her belief that a prostitute named “Dawn” and a pimp named “Frank” were the
perpetrators of the victim’s murder. Berry stated that Warden was unable to provide any
more identifying information about these two potential witnesses. He said he had Warden
subpoenaed for trial, but he could not recall whether he was ever asked to personally bring
her to the courthouse. On cross-examination, he acknowledged that Warden’s brother

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informed him that Warden was suffering from Alzheimer’s Disease and was addicted to
prescription medication. He also acknowledged that Warden was on probation for
solicitation to commit first degree murder at the time he interviewed her.

Berry also interviewed Dr. Conavey, a physician in another state who had treated the
victim and reviewed his medical records. According to Berry, Dr. Conavey “had seen that
[the petitioner] had been prescribed” both Coumadin and “another drug called Keflex,”
which, if taken together, could “cause massive hemorrhaging.” Berry said that Dr. Conavey
indicated a willingness to testify at trial that the ingestion of those drugs could have been the
cause of the petitioner’s death. He stated that he gave his reports of his interviews with Dr.
Conavey to trial counsel, but he could not recall if Dr. Conavey was subpoenaed for trial.

Former Metro Nashville Homicide Detective Larry Flair, who was the lead
investigator in the case, testified that at the time of the victim’s murder, the area surrounding
the Knights Inn and other nearby motels was known for prostitution and “things of that
nature.” He said that when he arrived at the crime scene, he found the deceased victim in the
bathroom with his head partially inside the rim of the toilet and the pockets of his pants
turned inside out, which made it appear that he had been the victim of a robbery. The scene
was “pretty bloody,” and the victim appeared to have sustained blunt force trauma to the
head. The petitioner and his girlfriend were developed as suspects, and the petitioner was
subsequently arrested in Indiana. Flair testified that the petitioner gave him an incriminating
statement at the time of his arrest, the essence of which was that he had struck the victim in
the head with a bottle and taken his money but that the victim had been fine when he left his
motel room. He agreed that trial counsel was successful in having that statement suppressed
at trial.

Trial counsel, who had been licensed to practice law in California in 1995 and in
Tennessee in 1997, testified that she had practiced criminal law in California, clerked for a
judge in Tennessee, worked for the public defender’s office in Tennessee, and, since 2001,
been engaged in the private practice of law in Tennessee with her primary focus on criminal
defense. She was appointed to represent the petitioner in his post-conviction following his
initial conviction and was then appointed to represent him in the retrial of his case, with
another, newer attorney assigned to assist her. She had received her death penalty
qualification by the time of the petitioner’s retrial, and the petitioner’s was the fourth or fifth
homicide trial that she had handled.

Trial counsel was unable to remember many of the specifics of how she reacted to
each piece of late-disclosed evidence, given the number of years that had elapsed since trial,
but she was able to recall that the State’s repeated late disclosures had angered her and
“stressed [her] out.” She agreed that the State’s numerous late-disclosures “took [her] out

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of [her] game” and testified that, in hindsight, she could have perhaps “more cleanly
objected” and made more motions for continuances and mistrials. Overall, though, she
thought that she did the best that she could and “put on a pretty good fight.” She also
explained that she was conscious of trying to “keep [her] cool” and avoid being seen by the
jury as continually stopping the trial and being “the obstructionist.”

As for her reaction to specific pieces of late-disclosed evidence, counsel conceded that
she should have asked for a mistrial or a continuance in order to have the unidentified latent
prints that were recovered from the crime scene run through the police department’s database
to see if they matched anyone with a history of a violent crime. She could not recall the
specifics about Michelle Scheffel’s fingerprints on a beer bottle on a motel room nightstand,
but she did recall not having been informed until trial that Scheffel had given an early
statement denying that she was in the victim’s room. Counsel acknowledged that she was
unsuccessful in her attempts to have Scheffel’s entire testimony excluded in light of the late-
disclosed statement and conceded that she might have been able to impeach Scheffel’s
credibility with the fingerprint evidence from the bottle, had it been recovered from the
victim’s room. She could not remember why she did not recall either Scheffel or the police
identification officer in order to determine where the bottle with Scheffel’s fingerprint had
been found. She explained, however, that it was difficult for her in the midst of trial to
recognize or react to the significance of every piece of late-disclosed evidence: “I think that
. . . I was pushing through, in some respects, as best as I could. The ability to stop and
completely appreciate the seriousness of how I could use those little pieces of evidence that
were thrown mid-trial, I am not sure I was able to.”

Trial counsel testified that the videotape of the petitioner speaking with Scheffel and
his mother might have been useful had it been audible, but as she recalled it was “messed up”
and unable to be repaired. She could not recall whether she moved for a mistrial following
the State’s late disclosure of the videotape but conceded that she should have done so. She
said she would not have recalled Detective Flair to attempt to impeach him regarding the
damaged videotape because, as a State’s witness, he would have been “a dangerous witness
to put on.” For the same reason, she did not recall him to question him about his late-
disclosed supplemental reports.

Trial counsel could not remember why she did not call Pamela Warden as a witness
but speculated that it might have been because she had not shown up, that she had shown up
but been “a mess,” or that much of what she had to say would have been inadmissible
hearsay. Trial counsel also could not specifically recall if she and her investigators tried to
locate the prostitute and pimp that Warden mentioned, but she thought that they would have
made the attempt. As for Dr. Conavey, she recalled that one of the medical experts she called
as a witness, Dr. Murray Smith, had spoken to Dr. Conavey and may have even had access

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to his reports. In addition, both Dr. Murray Smith and Dr. O.C. Smith testified about the
victim’s poor state of health and offered their opinions about potential causes of death other
than blunt force trauma. In hindsight, however, she thought she should have called Dr.
Conavey as an additional medical expert at trial.

A former assistant district attorney who was assigned to the petitioner’s original post-
conviction case testified that she handled trial counsel’s request for discovery by inviting trial
counsel “to come and have full access to the file.” She said that the only thing she would
have removed from the file was her or a fellow assistant district attorney’s personal work
notes.

The assistant district attorney who served as junior trial counsel at the petitioner’s
2007 retrial testified that she was assigned to the petitioner’s case shortly after she joined the
Davidson County District Attorney’s Office in 2006, which followed four and a half years
spent in private practice, a number of years as a staff attorney for the Tennessee Court of
Criminal Appeals, time spent as an appellate law clerk, and work as an assistant district
attorney for the Gibson County District Attorney’s Office. She said she spent the first two
to three weeks after her assignment organizing the voluminous case file. She stated that she
responded to trial counsel’s discovery requests to the best of her ability and spent
considerable time and effort arranging for trial counsel to view the exhibits that were kept
at the property room of the police department. The witness explained that she and the lead
prosecutor were not aware of the card of latent fingerprints, which had apparently been kept
at the ID Section of the police department, until the ID officer began testifying about them
at the trial. She stated that they were similarly unaware of Detective Flair’s supplemental
reports until she realized, during his testimony, that he was testifying from reports that she
had never seen and that were not, to her knowledge, ever in the State’s file. As for the
videotapes of the petitioner’s and Scheffel’s interviews, she found manilla envelopes
containing VHS tapes in the file, which, upon examination, were not functioning properly.
She testified that she never removed anything from the file and that she assumed trial counsel
was aware of those videotapes because they were in the boxed materials to which trial
counsel had access.

At the conclusion of closing arguments, the petitioner’s post-conviction counsel
moved for the court to order the State to have the unidentified fingerprints analyzed. The
court denied the motion and, on December 16, 2011, entered a written order denying the
petition for post-conviction relief. Among other things, the court found that the petitioner
failed to show that counsel was deficient in her responses to the late-disclosed evidence or
in her failure to call the additional witnesses at trial or that he was prejudiced as a result of
counsel’s alleged deficiencies. The court further found that the petitioner was not denied the
effective assistance of counsel under the Cronic standard because it was clear from the record

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that “the prosecution’s case was forced by trial counsel to ‘survive the crucible of meaningful
adversarial testing.’” This appeal followed.

ANALYSIS

I. Post-Conviction Standard of Review

Post-conviction relief is available to a petitioner who establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden of
proving his allegations by clear and convincing evidence. Id. § 40-30-110(f). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
post-conviction court “are entitled to substantial deference on appeal unless the evidence
preponderates against those findings.” Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see
also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review is of
purely factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a post-conviction
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo,
with a presumption of correctness given only to the post-conviction court’s findings of fact.
See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

II. Ineffective Assistance of Counsel under Strickland

The right to effective assistance of counsel is safeguarded by the Constitutions of both
the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn. Const. art.
I, § 9. Ordinarily, to establish that he was denied the effective assistance of counsel, the
petitioner has the burden to show both that trial counsel’s performance was deficient and that
counsel’s deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland standard
is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so

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 serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
reviewing court must indulge a strong presumption that the conduct of counsel falls within
the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices
were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

The prejudice prong of the Strickland test is satisfied by showing a reasonable
probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

III. Presumed Prejudice under Cronic

In limited circumstances, a petitioner may be able to show that he was denied the
effective assistance of counsel without the necessity of inquiring into the actual conduct of
the trial. Cronic, 466 U.S. at 660. In Cronic, the United States Supreme Court identified
three scenarios involving the right to counsel where the circumstances are “so likely to
prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”
466 U.S. at 658 (footnote omitted). In these circumstances, a presumption of prejudice is
justified without the necessity of inquiring into counsel’s actual performance at trial. Id. at
662. These scenarios are: (1) situations involving “the complete denial of counsel,” where
the accused is denied the presence of counsel at “a critical stage” in the proceeding; (2)
situations where “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing;” and (3) situations where “counsel is available to assist the accused
during trial, [but] the likelihood that any lawyer, even a fully competent one, could provide

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effective assistance is so small that a presumption of prejudice is appropriate without inquiry
into the actual conduct of the trial.” Id. at 659-60.

The Cronic Court listed five factors that are “relevant to an evaluation of a lawyer’s
effectiveness in a particular case” although it noted that “neither separately nor in
combination” were they determinative of the issue of whether competent counsel was able
to provide the defendant with “the guiding hand that the Constitution guarantees.” Id. at 663.
These five factors are: (1) the time afforded for investigation and preparation; (2) the
experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses;
and (5) the accessibility of witnesses to counsel. Id. at 662-66.

“Under the third category of Cronic, the presumption of prejudice applies in limited,
egregious circumstances.” Fuller v. Sherry, 405 F.App’x 980, 985 (6th Cir. 2010). The
petitioner argues that his case fits this limited third Cronic scenario, asserting that of the five
Cronic factors, all but the second weigh strongly in favor of a finding that his trial was
rendered so inherently unfair and fundamentally flawed by the State’s systematic late
disclosure of exculpatory evidence that his trial counsel, despite her extensive experience and
skill, was simply unable to respond or function as an effective advocate. The State responds
by arguing, inter alia, that a finding of presumed prejudice under the third Cronic category
is appropriate only in very rare, egregious circumstances, such as those present in Powell v.
Alabama, 287 U.S. 45 (1932), which is the only case where the United States Supreme Court
has found a presumption of prejudice warranted under the third Cronic category. We agree
with the State.

The United States Supreme Court concluded that the circumstances in Powell were
of such a magnitude that “the likelihood that any lawyer, even a fully competent one, could
provide effective assistance [was] so small that a presumption of prejudice” was appropriate.
Cronic, 466 U.S. at 659-60. Those circumstances, as described by the Cronic Court, were:

The defendants had been indicted for a highly publicized capital
offense. Six days before trial, the trial judge appointed “all the members of the
bar” for purposes of arraignment. “Whether they would represent the
defendants thereafter if no counsel appeared on their behalf, was a matter of
speculation only, or, as the judge indicated, of mere anticipation on the part of
the court.” [Powell], 287 U.S., at 56, 53 S. Ct. , at 59. On the day of trial, a
lawyer from Tennessee appeared on behalf of persons “interested” in the
defendants, but stated that he had not had an opportunity to prepare the case
or to familiarize himself with local procedure, and therefore was unwilling to
represent the defendants on such short notice. The problem was resolved
when the court decided that the Tennessee lawyer would represent the

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 defendants, with whatever help the local bar could provide.

“The defendants, young, ignorant, illiterate, surrounded by hostile
sentiment, haled back and forth under guard of soldiers, charged with an
atrocious crime regarded with especial horror in the community where there
were to be tried, were thus put in peril of their lives within a few moments
after counsel for the first time charged with any degree of responsibility began
to represent them.” Id., at 57-58, 52 S. Ct., at 60.

This Court held that “such designation of counsel as was attempted was
either so indefinite or so close upon the trial as to amount to a denial of
effective and substantial aid in that regard.” Id., at 53, 53 S. Ct., at 58. The
Court did not examine the actual performance of counsel at trial, but instead
concluded that under these circumstances the likelihood that counsel could
have performed as an effective adversary was so remote as to have made the
trial inherently unfair. Powell was thus a case in which the surrounding
circumstances made it so unlikely that any lawyer could provide effective
assistance that ineffectiveness was properly presumed without inquiry into
actual performance at trial.

Id. at 660-61 (footnotes omitted).

The Cronic Court noted that not “every refusal to postpone a criminal trial” will “give
rise to such a presumption” and that no such presumption of prejudice was warranted in
Avery v. Alabama, 308 U.S. 444 (1940), a capital case in which counsel was appointed only
three days before trial, because the evidence and witnesses “were easily accessible to defense
counsel” and “the circumstances did not make it unreasonable to expect that counsel could
adequately prepare for trial during that period of time.” Id. at 661. The Cronic court,
likewise, concluded that the circumstances surrounding Cronic’s case were not of such a
magnitude as to warrant a presumption of prejudice. Id. at 666. These circumstances
included the fact that the defendant, who was charged with federal mail fraud, was appointed
as counsel a young attorney whose principal practice was real estate law, who had never
before tried a case before a jury, and who had been given only twenty-five days to prepare
for trial. Id. at 662-66.

In support of his argument that he is entitled to a presumption of prejudice under the
third Cronic category, the petitioner attempts to distinguish his case on its facts from Fuller,
in which the Sixth Circuit Court of Appeals concluded that, despite defense counsel’s late
appointment to the case, no presumption of prejudice was warranted due in part to the fact
that the case was “fairly straightforward, and witnesses and evidence had already been

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identified.” 405 F.App’x at 989. The petitioner also seeks to identify his case with Hunt v.
Mitchell, 261 F.3d 575, 583-85 (6th Cir. 2001), in which the Sixth Circuit Court of Appeals
found presumptive prejudice under the third Cronic category due to the fact-intensive nature
of the case and defense counsel’s limited time to prepare.

The defendant in Fuller was appointed new counsel at his request only one hour and
twenty-eight minutes before jury selection began in his state criminal trial for resisting and
obstructing a police officer, criminal sexual conduct in the fourth degree, and marijuana
possession. 405 F. App’x at 981. The trial court granted a one-hour recess following the
selection of a jury but declined the defendant’s late discovery requests and motion for an
adjournment. Id. at 981-82. Following his conviction, the defendant filed a petition for writ
of habeas corpus in which he argued that he was entitled to a presumption of ineffective
assistance of counsel because it was “unlikely that any attorney could [have] provid[ed]
competent representation with so little preparation time.” Id. at 981.

In affirming the denial of the petition, the Sixth Circuit Court of Appeals analyzed the
circumstances of the case under the five Cronic factors. The Court noted that although the
short time counsel was given to prepare was “striking,” counsel was an experienced attorney,
the defendant was represented at the arraignment and preliminary examination by former
counsel who “[p]resumably” would have identified witnesses and evidence, the charges were
less serious than those faced by the defendants in Powell and other cases, and the case was
relatively uncomplicated. Id. at 988-89.

The defendant in Hunt was convicted in Ohio state court of felonious assault and
domestic violence following a jury trial in which the court appointed counsel on the day of
trial and refused counsel’s request to confer with his client before proceeding to voir dire.
261 F.3d at 577. The Hunt Court concluded that Hunt’s was “one of those rare cases” in
which the presumption of prejudice was appropriate due to the late appointment of counsel
and the fact that counsel was denied the opportunity of consulting with his client or
conducting any discovery or independent investigation of the facts. Id. at 585. In reaching
this conclusion, the court observed that a defendant “‘is effectively denied his constitutional
right to assistance of counsel’” when “‘counsel has no acquaintance with the facts of the case
and no opportunity to plan a defense.’” Id. at 585 (quoting Chambers v. Maroney, 399 U.S.
42, 59 (1970) (Harlan, J., concurring in part and dissenting in part)).

The charges against the petitioner in the case at bar were serious and the theories of
defense relatively complex. However, in contrast to Powell, Fuller, and Hunt, trial counsel,
an experienced and skilled defense attorney, was appointed well before the start of the trial.
Counsel, in fact, was initially appointed to represent the petitioner in his original post-
conviction proceedings before being appointed to represent him in the retrial of his case.

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There is no suggestion that counsel was prevented from meeting with the petitioner or was
unable during the lengthy time that elapsed pretrial to investigate and familiarize herself with
the essential facts of the case or to plan and prepare an adequate defense. At the evidentiary
hearing, counsel described her extensive efforts in preparation for the case and expressed her
opinion that she and her colleagues had “worked [the] case to death.”

We have no doubt that counsel was “t[aken] out of [her] game” by the State’s repeated
disclosures of various items of potentially exculpatory evidence during the trial. The late-
disclosed evidence was not, however, of such a nature as to require counsel to change her
theories of defense or the manner in which she presented the case. Counsel was not, for
example, forced to abandon her defense theory of the petitioner’s having acted in self-
defense, the victim’s having died from something other than blunt force trauma, or the
victim’s having been killed by another individual or individuals who entered the motel room
after the petitioner’s departure by the State’s late disclosure of the broken and irreparable
videotape, Detective Flair’s supplemental report, Michelle Scheffel’s statement denying
knowledge of the crime, or evidence of Scheffel’s fingerprints on an unbroken beer bottle
and unidentified fingerprints at the crime scene.

With respect to the unidentified fingerprints, which the petitioner asserts could have
helped support his theory of another perpetrator, we note, again, Judge Thomas’ concurrence
to the direct appeal opinion that “[t]he presence of unidentified fingerprints at the scene of
the crime does not change the fact that the [petitioner’s] fingerprints are on the murder
weapon.” William Glenn Wiley, 2009 WL 3103768, at *43. Indeed, in light of the
undisputed character of the motel and neighborhood in which the victim was murdered, we
think it would be surprising if unidentified fingerprints, or even bodily fluids, had not been
found in the motel room. We also note that the petitioner failed to request that the
fingerprints be run through the police department’s database until late in the evidentiary
hearing and, thus, was unable to show that they could have been matched to any offender or
that they have any relevance to the crimes.

In sum, we conclude that the circumstances of this case do not rise to the egregious
level required for a finding of pro se prejudice under the third category of Cronic. The
petitioner is not, therefore, entitled to post-conviction relief on the basis of his claim of
presumed prejudice.

IV. Claims of Ineffective Assistance under Strickland Test

The petitioner also contends that trial counsel provided ineffective assistance under
the Strickland standard. Specifically, he argues that the outcome of his trial was prejudiced
by counsel’s failure to adequately respond to the State’s late-disclosed exculpatory evidence

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and her failure to call Dr. Conavey and Pamela Warden as witnesses at trial. The State
responds that the petitioner has failed to show that counsel was deficient in her responses or
actions or that the petitioner was prejudiced as a result of any alleged deficiency in counsel’s
performance. We, once again, agree with the State.

In denying relief on the basis of these claims, the post-conviction court found, among
other things, that trial counsel “offered a reasoned explanation of why she could not or did
not show prejudice” as a result of the State’s late disclosures of evidence. The post-
conviction court noted that trial counsel explained her belief that Dr. Conavey’s testimony
would have been redundant to that of the two medical experts that she called at trial, each of
whom cast doubt on the medial examiner’s findings as to the victim’s cause of death. The
court further found that the petitioner failed to show that the identification of the fingerprints
found in the victim’s motel room would have been helpful to the petitioner’s defense or that
he was prejudiced by counsel’s failure to call Pamela Warden as a witness at his trial.

The record fully supports the findings and conclusions of the post-conviction court.
Counsel provided several reasonable possibilities for why Warden did not testify at trial and
explained that she chose not to call Dr. Conavey because his testimony would have been
redundant to the two medical experts she called as witnesses. She also gave a reasonable
explanation for why she did not recall the police detective to the stand to question him about
his supplemental reports or the damaged videotapes. Finally, she also explained that,
although she thought in hindsight she should have made more motions for continuances or
mistrials, at the time of trial she was conscious of not wanting to appear as “the
obstructionist” to the jury. We conclude, therefore, that the petitioner has failed to show that
he was denied the effective assistance of counsel under the Strickland standard.

V. Denial of Motion for Continuance

As his final issue, the petitioner contends that the post-conviction court erred in
denying his motion for a continuance to have the unidentified fingerprint evidence analyzed.
The granting of a continuance lies within the sound discretion of the trial court, and we will
not reverse that decision absent a showing of an abuse of discretion. State v. Schmeiderer,
319 S.W.3d 607, 617 (Tenn. 2010) (citing State v. Odom, 137 S.W.3d 572, 589 (Tenn.
2004)). “‘An abuse of discretion is demonstrated by showing that the failure to grant a
continuance denied defendant a fair trial or that it could be reasonably concluded that a
different result would have followed had the continuance been granted.’” Id. (quoting State
v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)).

In denying the petitioner’s motion, the post-conviction court concluded that it was
“too late in the day” for the court “to grant a motion made at the close of closing arguments

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to reopen the proof and also to order a fingerprint examination.” As the post-conviction
court noted in its ruling, the case had been pending for some time and the petitioner failed
to make his request until after closing arguments had already been completed. Under these
circumstances, we find no abuse of discretion in the post-conviction court’s denial of the
motion for a continuance.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the petition
for post-conviction relief.

_________________________________
ALAN E. GLENN, JUDGE

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