Bruce Reliford v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 13, 2013

BRUCE RELIFORD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
Nos. 9306433, 9306434, 9306437, 9306438 J. Robert Carter, Jr., Judge

No. W2012-02339-CCA-R3-PC - Filed November 27, 2013

After his previous guilty-pleaded convictions were vacated, petitioner, Bruce Reliford,
pleaded guilty to aggravated robbery charges and was found guilty by a jury of felony
murder. Following an unsuccessful direct appeal and denial of discretionary review by our
supreme court, he filed the instant petition for post-conviction relief. The post-conviction
court denied relief, and this appeal follows, in which petitioner alleges the following: (1)
ineffective assistance of counsel by failing to properly communicate with him; (2) ineffective
assistance of counsel by advising him to plead guilty to the aggravated robbery charges; and
(3) the post-conviction court’s error in denying his motion to recuse. Following our thorough
review, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the Court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.

Michael R. Working, Memphis, Tennessee, for the appellant, Bruce Reliford.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy Weirich, District Attorney General; and Paul Goodman, Assistant District
Attorney General, for the appellee, State of Tennessee.

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 OPINION

I. Facts

A. Procedural History Following the 1995 Guilty Plea Submission/Petitioner’s
Motion for Correction of Sentence

As set forth more fully below, in 1995, petitioner entered guilty pleas to one count of
first degree felony murder, two counts of aggravated robbery, and one count of aggravated
assault. Four years later, he filed a “Motion for Correction/ Reduction of Sentence.”
Obtaining no relief in the trial court, petitioner successfully appealed. His convictions were
vacated, and the case was remanded to the trial court. This court summarized the procedural
history of petitioner’s case as follows:

This direct appeal follows dismissal of the appellant’s motion at the
trial level for a “Correction/Reduction” of his sentences. The appellant is
currently serving an effective sentence of life without parole after pleading
guilty in 1995 to the offenses of first degree murder, two counts of aggravated
robbery and one count of aggravated assault. He argues that his sentences are
illegal and are subject to correction because (1) his life sentence is in direct
contravention of statutory authority and (2) his negotiated plea agreement with
the State is incapable of specific performance. The indictment alleges that
these offenses occurred on December 24, 1992. On this date, life without the
possibility of parole was not an available sentencing option for first degree
murder. Although we find that appellate review of a “Motion for Correction
or Reduction” of a sentence is not available, as of right, under Tenn. R. App.
P. 3(b), nonetheless, we hold that review is available under the common law
writ of certiorari . . . .

On February 6, 1995, the appellant, Bruce C. Reliford, entered,
pursuant to a negotiated plea agreement, guilty pleas to two counts of
aggravated robbery, one count of aggravated assault, and one count of first
degree murder. The indictment recites that these offenses occurred on
December 24, 1992. The negotiated plea agreement provided that the appellant
would receive concurrent sentences of twelve years for each count of
aggravated robbery, six years for aggravated assault, and a sentence of life
without the possibility of parole for first degree murder. The agreement further
provided that the appellant’s state sentences would be served concurrently with
a federal sentence in case CR93-20107M, USDC, W.D.TN. The trial court
accepted the plea agreement and imposed the bargained for sentences.

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 On July 23, 1999, the appellant filed a “Motion for Correction/
Reduction of Sentence,” alleging that the Shelby County Criminal Court
imposed illegal sentences.

....

Finding that the trial court was without statutory authority to impose the
bargained for sentence of life without the possibility of parole for the
appellant’s conviction of first degree murder, we vacate the conviction and
sentence for first degree murder. Moreover, since the appellant’s plea bargain
agreement encompassed not only the charge of first degree murder but also the
charges for aggravated robbery and aggravated assault, we are unable to
separate the individual convictions/sentences imposed under the plea
agreement in fashioning appropriate relief. Accordingly, we must vacate all
convictions and remand to the trial court. On remand, the trial court may
impose a sentence that is mutually agreeable to the State and the appellant, so
long as the sentence is available under the applicable law. If an agreement is
not reached, the appellant may withdraw his guilty pleas and proceed to trial
on the original charges.

State v. Bruce C. Reliford, No. W1999-00826-CCA-R3-CD, 2000 WL 1473846, at *1-3
(Tenn. Crim. App. Oct. 2, 2000) (internal citation omitted).

B. Facts from Trial

Following the aforementioned remand to the trial court, petitioner entered guilty pleas
to two counts of aggravated robbery and proceeded to trial on the charge of felony murder.
The facts from the trial were summarized by this court on direct appeal as follows:

The defendant, Bruce C. Reliford, entered guilty pleas to aggravated
robbery charges, following a remand, and was convicted by a jury of felony
murder. The trial court imposed a life sentence for the felony murder
conviction and twelve years for each aggravated robbery conviction, to be
served concurrently. On appeal, the defendant contends that: the trial court
improperly allowed evidence to be introduced at trial; his statement to police
was not given voluntarily; and the trial court erred in accepting his guilty pleas
and in setting his sentence. After careful review, we affirm the judgments from
the trial court.

On December 24, 1992, the defendant robbed two employees at a
Memphis gas station. He also shot and killed Shannon Wilson and stole

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Wilson’s car in the process of fleeing the scene. Initially, the defendant entered
the gas station and grabbed Cynthia Coleman. He ordered two other women
to go into the women’s restroom and demanded that Ms. Coleman open the
safe. The defendant was armed with a gun and threatened to kill Ms. Coleman
if she did not open the safe and give him the money. He told Ms. Coleman not
to touch the phone and that if a police car came onto the lot, he would go to
jail for murder because he would blow her brains out. She estimated that she
gave the defendant approximately $6000 and put it in a brown paper bag. Ms.
Coleman then went into the men’s restroom and locked the door.

After he got the money from the safe, the defendant knocked on the
women’s restroom door and demanded Karen Yarber’s car keys. She complied
with his demand after the defendant pointed the gun at her and told her to give
him the keys. The women emerged from the restrooms after the defendant left,
and Ms. Yarber observed that the defendant had not taken her car. Ms.
Coleman called 911 to report the robbery when she was sure the defendant was
gone.

The women in the gas station observed a lot of “commotion” at the
Toddle House across the street. The police later returned with the bag of
money, Ms. Yarber’s keys, and the jacket the defendant had been wearing
when he robbed the store.

Vincent Price testified that he was eating breakfast at the Toddle House
when he heard a loud crash outside. He went outside to see what happened and
heard someone yell, “[H]e shot me.” He saw the defendant standing over
Shannon Wilson, who was lying on the ground near a car. Mr. Price testified
that he observed the defendant step over Wilson’s body, get in the car, and
drive away. He told police that the car was a dark blue Toyota. Mr. Price
applied pressure to a gunshot wound in the victim’s chest until the ambulance
arrived.

Shannon Wilson’s father testified that his son purchased a new dark
blue Toyota about a month before he was killed.

On the day following the robbery and shooting, the witnesses, Ms.
Chapman, Ms. Yarber, and Mr. Price, were called to the police station to view
a lineup. Each witness identified the defendant as the man responsible for the
robbery.

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 Sergeant Alan Pinnow testified that he interviewed the defendant two
days after the crimes. He said that the defendant executed a waiver of his right
to remain silent and his right to counsel and agreed to answer the sergeant’s
questions. The defendant confessed to robbing the gas station and identified
the gun that he used to commit the crimes. The defendant also acknowledged
that he took Ms. Yarber’s car keys so he could escape in her car but, when he
was unable to open her car, he ran across the street to the restaurant where he
found Wilson sitting in his car. The defendant told the police that Wilson
grabbed the gun from him, and it went off. The defendant said that he then got
in the car and fled the scene. The defendant’s interview was transcribed in the
robbery bureau. When the statement was presented to the defendant, he refused
to sign it because there was an error in the transcript.

....

The defendant presented two witnesses who testified that someone at
the lineup said, “That’s him, that’s him[,]” during the identification process.

Linda Sue Ridgell testified that she was standing at the cash register at
the Toddle House restaurant when she saw someone shoot a man in the
parking lot. She said that she did not get a good look at him but thought he was
“five six to five seven” in height. The defendant demonstrated that he was six
feet tall. She testified that the outburst from the person in the lineup room had
no impact on her identification.

State v. Bruce C. Reliford, No. W2007-02899-CCA-R3-CD, 2010 WL 1610517, at *1-2
(Tenn. Crim. App. Apr. 19, 2010), perm. app. denied (Tenn. Sept. 23, 2010).

C. Facts from Post-Conviction Proceedings 1

1. Hearing on Petitioner’s Motion for Recusal

Prior to the evidentiary hearing, petitioner, without benefit of counsel, filed a motion
for the post-conviction judge to recuse himself; however, post-conviction counsel argued the
motion on behalf of petitioner. As grounds, counsel presented an order for recusal filed by

1
Petitioner raised several issues in the post-conviction court. However, he pursues only three issues
in this appeal. Thus, our recitation of the facts will be limited to those that are pertinent to determination of
the issues raised herein.

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the judge in Division VIII2 of the Shelby County Criminal Court wherein the court noted
“several other divisions that should probably recuse themselves and cited [Division III]” in
the list.3 The post-conviction judge stated that when petitioner’s post-conviction case was
first assigned to him in Division III, his “first question was [whether] he [had] any contact,
supervisory authority, participation even on a tangential matter[,] [or] handle[d] any part of
it[,] and the answer is[,] [“]No.[”] The court further stated that he was never a prosecutor in
any of petitioner’s cases and never supervised any unit of the prosecutor’s office that handled
any of petitioner’s matters. The court ruled that simply being employed by the district
attorney’s office at the same time that petitioner had a case pending did not disqualify the
court from handling the instant matter.

In a written order, the post-conviction court held:

Petitioner, through counsel, has filed a Motion for Recusal of this
Court. As grounds, he alleges that “it is possible” that Petitioner’s case was
handled in the same Division of Criminal Court where this Court once was
assigned as an Assistant District Attorney General.

Counsel, at the hearing, states that his client’s original case was a
special prosecution case, handled “vertically”4 by a single prosecutor. The
Court was not that prosecutor. Counsel further agrees that a review of the
State’s file and the record of the Criminal Court clerk show[s] no sign that this
Court ever participated, even slightly, in the handling of Petitioner’s case.

The Petitioner’s case was apparently tried in Division I of Criminal
Court in the early 1990’s. This Court has never participated in the prosecution

2
It appears from the record that the post-conviction judge was employed as an assistant district
attorney general and assigned to Division VIII of the Shelby County Criminal Court at some point during the
pendency of petitioner’s case at the trial level.
3
Although petitioner characterizes the order in question as having recommended that other judges
recuse themselves from this case, it appears that said order was not introduced as an exhibit at the hearing
on the motion to recuse, nor was it appended as an exhibit to petitioner’s motion. Our review of the technical
record reveals signed orders of recusal from the judges of Divisions IV and V but not VIII. Thus, we may
not consider this order on appeal.
4
A “vertical prosecution” model has been described by our supreme court as one in “which one
prosecutor is designated to remain with the case through final disposition[,] [r]ather than dividing the
management and responsibility for a case among numerous prosecutors as it moves through pre-trial and
trial[.]” State v. Thomas, 158 S.W.3d 361, 408 (Tenn. 2005).

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 of[] or had any knowledge of the facts or circumstances surrounding
Petitioner’s case.

The mere fact that the Court was employed by the . . . District Attorney
General’s Office at the same time that Petitioner was prosecuted does not
create a conflict or the appearance of a conflict. There was no connection
between the Court[] as a prosecutor[] and the Petitioner’s case.

Following denial of petitioner’s motion for recusal, the post-conviction court held an
evidentiary hearing that spanned four different dates in August 2012.

2. Evidentiary Hearing

Petitioner testified that trial counsel (collectively) were appointed to represent him at
trial after his retained counsel sought leave to withdraw from his case.5 He stated that he met
with Trial Counsel A and Trial Counsel B one time each in the three-year period that he was
incarcerated at the county jail awaiting trial. Post-conviction counsel asked petitioner about
his jail visitation records, which reflected that Trial Counsel B visited him one time
approximately three weeks prior to trial and three or four times during the week preceding
trial. Petitioner maintained that Trial Counsel B may have visited with another prisoner
during that week but that he did not meet with petitioner. Petitioner noted that although his
case was a capital murder case for many years, he received “maybe three” visits from his
attorneys. He also claimed that he never received written correspondence from them.

Petitioner claimed that trial counsel “encouraged” him to plead guilty to the robbery
counts. He asserted that Trial Counsel B entered the holding cell outside of the courtroom
and “pointed his finger in [petitioner’s] face and told [him] [he] was going to cop out to the
robbery[,] and [he’d] better not take the stand in trial . . . .” He claimed that this incident was
witnessed by a private investigator who was present. Post-conviction counsel noted that
petitioner had never disclosed that the incident was witnessed until his testimony at the
evidentiary hearing.

Petitioner believed that he was prejudiced by his pleading guilty because the jury
would have assumed his involvement in the murder once it was informed that he had
admitted his participation in the robberies. Although trial counsel argued that the guilty pleas

5
The State filed a notice of intent to seek the death penalty in petitioner’s case. Accordingly, the
trial court appointed two attorneys to represent him. Trial Counsel A was listed as lead counsel, and Trial
Counsel B was “second chair.” However, when the State withdrew its notice, Trial Counsel A was officially
discharged, although he continued to be involved with the case, leaving Trial Counsel B as primary counsel.

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were inadmissible, the trial court allowed the jury to hear the evidence because it established
that petitioner was in the vicinity of the murder at the time it was committed. Petitioner
stated that he had not had any prior discussions with trial counsel about trial tactics or
strategy. He had also not discussed the possibility of pleading guilty to the robbery charges
prior to the day he entered the pleas. Before he entered the pleas, he had expected to testify
at his murder trial, but after he pleaded guilty, trial counsel advised against petitioner’s
testifying at trial.

Trial Counsel B testified that he was licensed to practice law in 1992 and that eighty-
five to ninety percent of his practice involved criminal cases. With regard to petitioner’s
pleading guilty to the robbery charges, Trial Counsel B stated that he and Trial Counsel A
“certainly advised him to do so under the circumstances.” He elaborated that trial counsel
wanted to keep the video footage from the robbery out of evidence and that as a matter of
trial strategy, they thought they would be successful if they reduced the “probative” nature
of the video by having petitioner plead guilty to the crimes that were captured on tape. Trial
Counsel B acknowledged that they were aware of what strategies had not worked in
petitioner’s case because he had already been convicted in federal court. Trial Counsel B
further testified that he did not recall how many times he visited petitioner in jail but said that
Trial Counsel A would have also met with petitioner.

Based upon the testimony and exhibits introduced at the evidentiary hearing, the post-
conviction court denied relief by written order.

II. Analysis

Although petitioner addressed several claims in his petition for post-conviction relief
and subsequent amendments thereto, in this appeal, he pursues only three issues: (1)
ineffective assistance of trial counsel for failure to adequately communicate with him; (2)
ineffective assistance of trial counsel for advising him to plead guilty to the robbery charges;
and (3) the post-conviction court’s improperly denying his motion to recuse. Accordingly,
the remaining issues have not been addressed in this appeal. See Ronnie Jackson, Jr. v. State,
No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26,
2009) (“While the Petitioner raised additional issues in his petition for post-conviction relief,
he has abandoned those issues on appeal.”).

A. Standard of Review

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her

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factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

“[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It is
a violation of this standard for defense counsel to deprive a criminal defendant
of a substantial defense by his own ineffectiveness or incompetence. . . .
Defense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his
client’s interest, undeflected by conflicting considerations.”

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Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

B. Issues

1. Alleged Failure to Properly Communicate with Petitioner

Petitioner argues that until the week prior to trial, he received only one visit from Trial
Counsel B and that such level of communication fell below the standard of performance,
especially in a capital murder case. The State counters that the record contradicts petitioner’s
testimony and that he cannot demonstrate prejudice. We agree with the State.

In denying relief on this claim of error, the post-conviction court made the following
findings of fact:

Petitioner first contends that he only saw trial counsel [B] “twice in
three years.” The jail visitation records (Exhibit 1 to this hearing) would
appear to contradict that statement, but Petitioner maintains that if trial counsel
came to the jail[,] it was not to see him.

It is clear that trial counsel was familiar with the facts of the case.
Indeed, the transcript of the federal trial provided a blueprint for the case that
the State would present.

Petitioner does not allege anything that he was unable to communicate
to his attorney. The record further indicates that trial counsel had ample
opportunity to meet with Petitioner on the many court dates, as well as in the
jail.

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The evidence does not preponderate against these findings; thus, they are deemed conclusive
in this appeal.

The post-conviction court held:

The record is clear that the long history and the federal prosecution in
these matters gave trial counsel an opportunity to be totally familiar with the
facts of the case. There were many chances for Petitioner to communicate
with the lawyers and investigator. There was no proof of any information that
trial counsel did not already have.

We agree with the post-conviction court. The jail visitation log, which was specific to
petitioner’s visitors only, indicated multiple visits from both of his trial attorneys. Even if
they had visited more often, “[b]ecause . . . petitioner has failed to satisfactorily prove how
this lack of communication might have affected the results of the trial, no relief can be
granted on this basis.” Brimmer v. State, 29 S.W.3d 497, 511 (Tenn. Crim. App. 1998).
Petitioner is not entitled to relief on this claim of error.

Petitioner also makes an allusory statement that he could not have made “an informed
decision to forfeit his right to testify if he did so without the opportunity to speak with his
lawyer.” The post-conviction court noted:

Petitioner also complains of his decision not to testify in the trial. He
blames his trial attorney for this decision. The decision in this case was
memorialized in a Momon hearing conducted by the trial court . . . . It clearly
outlines the fact that Petitioner, his two attorneys[,] and even his mother all
discussed the matter prior to Petitioner declaring that it was his decision not
to testify.

We agree with the post-conviction court. As fully set forth above, we again conclude
that “petitioner has failed to satisfactorily prove how this lack of communication might have
affected the results of the trial . . . .” Brimmer, 29 S.W.3d at 511. Petitioner is not entitled
to relief on this issue.

2. Failure to Properly Advise Petitioner with Regard to Entering Guilty Pleas

Petitioner asserts that trial counsel were ineffective in advising him to plead guilty to
the aggravated robbery charges. He acknowledges that the voluntariness of his guilty pleas
has already been challenged and affirmed by this court on direct appeal; thus, he now
challenges trial counsel’s actions in advising him to enter the pleas. The State responds that

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trial counsel employed a reasonable trial strategy “designed to reduce the probative value of
evidence of the robbery.” We agree with the State.

In denying relief, the post-conviction court made the following findings of fact:

As part of the trial of the case[,] [m]otions were heard concerning the
admissibility of the evidence of the aggravated robberies in the trial of the
murder indictment. In an effort to bolster their argument to preclude such
testimony[,] a decision was made by Petitioner to plead guilty to the robberies.
This was done in the hope of strengthening the argument that the two events
were “separate and distinct” [and] had no relevance to one another.

Petitioner stated that he went along with it only at the direction of his
attorney. In the [evidentiary] hearing, Petitioner complained about the
voluntariness of the plea and his lack of understanding of the consequences.
These issues were raised in his Motion for New Trial and covered in his
appeal.

He now complains about the trial attorney’s decisions around this tactic.
Trial counsel testified that this course of action was pursued to give them a
better argument when attempting to keep the evidence of the robberies out of
the murder trial.

It appears that Petitioner now is second[-]guessing the strategy out of
unhappiness with the result.

We accredit these findings as being conclusive on appeal because the evidence does not
preponderate against them.

Although the post-conviction court did not specifically address this allegation in its
conclusions of law, it held that “Petitioner maintains that his attorneys were deficient in a
variety of ways. He concludes that they mishandled his pre-trial motions, the trial itself[,]
and later the appeal as of right. He simply offers no proof of these assertions.”

We also conclude that petitioner has failed to meet his burden of proof with regard to
this issue. “[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Felts v. State, 354 S.W.3d 266, 277
(Tenn. 2011) (quoting Strickland, 466 U.S. at 690-91). In this case, trial counsel had the
unique benefit of hindsight; the case had already been tried in federal court, and they knew

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which strategies were unsuccessful. Trial counsel also demonstrated an understanding of the
rules of evidence in that they attempted to reduce the probative value of the video footage
by advising petitioner to plead guilty. They hoped that the guilty plea would result in a ruling
by the trial court that the probative value of the video was substantially outweighed by unfair
prejudice. See Tenn. R. Evid. 403. The trial court nonetheless found that the video was
probative because it established petitioner’s whereabouts at the time of the crimes. “The fact
that a particular strategy or tactical decision failed does not by itself establish deficiency. Id.
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn.1996)). Petitioner is not entitled to relief
on this claim.

3. Post-Conviction Court’s Denial of Petitioner’s Motion to Recuse

Petitioner contends that because the post-conviction judge once worked as an assistant
district attorney general and was assigned to Division VIII, the division in which petitioner’s
case was first docketed, the post-conviction court should have recused itself. In furtherance
of this position, petitioner argues that “the propriety of recusal is so obvious[] that nearly all
of [Divisions V, VI, VII, VIII, IX, and X] disqualified themselves without any request from
[petitioner]” and that the post-conviction court should have recused itself as well. The State
responds that petitioner’s argument is meritless because the post-conviction judge had no
contact with petitioner’s case. Again, we agree with the State.

The decision of whether to “grant a motion for recusal is within the discretion of the
trial judge.” Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009) (citing Bd. of Prof’l
Responsibility v. Slavin, 145 S.W.3d 538, 548 (Tenn. 2004)). The court should grant a
motion to recuse “‘when the judge has any doubt as to his or her ability to preside impartially
in the case or when a person of ordinary prudence in the judge’s position, knowing all of the
facts known to the judge, would find a reasonable basis for questioning the judge’s
impartiality.’” Smith v. State, 357 S.W.3d 322, 341 (Tenn. 2011) (quoting Bean, 280 S.W.3d
at 805). Furthermore, “[r]ecusal is required when a judge has previously served as
prosecutor of a defendant in the same case.” Smith, 357 S.W.3d at 340. But see Owens v.
State, 13 S.W.3d 742, 757 (Tenn. Crim. App. 1999) (holding that when “[t]he proof
established that the [post-conviction] judge was one of nearly seventy attorneys employed
by the District Attorney’s Office[,] . . . was never assigned to prosecute or assist in the
prosecution of [the] case[,] [and] related that he knew nothing about the facts of this case,”
recusal was not required) (emphasis in original).

In this case, the post-conviction court summarized its reasons for denying petitioner’s
motion to recuse. Among the reasons it cited were: (1) petitioner’s case involved a “vertical”
prosecution in which one assistant district attorney general handled all of the proceedings,
and he was not that prosecutor; (2) although petitioner’s case was originally docketed in
Division VIII, it was tried in Division I, and the court had no involvement with the case while

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it was in Division VIII; and (3) the judge had no involvement with petitioner’s case, did not
have supervisory responsibilities over any prosecutor involved with petitioner’s case, and had
not participated in even the most “tangential” aspect of the prosecution of petitioner. We
agree that the post-conviction court’s employment in the Office of the District Attorney
General during the pendency of petitioner’s case did not, in and of itself, require the court
to recuse itself twenty years later.

Petitioner also maintains that he was prejudiced by the post-conviction court’s failure
to recuse because an issue involving “the notorious Memphis forty-eight[-]hour hold”
developed during the evidentiary hearing. He states that he was prejudiced by the court’s
holding that any such claim regarding the constitutionality of the forty-eight-hour hold was
waived, a ruling that stemmed from the court’s failure to recuse. He asserts that “‘[a]n
objective person of ordinary prudence’ would likely question the post-conviction court’s
impartiality on the question of forty-eight[-]hour holds based on years of work as a cog in
that corrupt wheel.” The State counters that petitioner’s argument is based on a “flawed
premise.”

Petitioner bases his argument on State v. Courtney Bishop, No. W2010-01207-CCA-
R3-CD, 2012 WL 938969, at *7-14 (Tenn. Crim. App. Mar. 14, 2012), perm. app. granted
(Tenn. Aug. 15, 2012). He interprets Courtney Bishop as this court’s having struck down the
practice of the forty-eight-hour hold as unconstitutional. He suggests that as a natural
consequence, the post-conviction court demonstrated bias by denying petitioner the right to
address claims with regard to the hold because of the judge’s involvement with the practice
as an assistant district attorney general. The State’s position is that the current viability of
the forty-eight-hour hold is in question because our supreme court has granted discretionary
review of the Courtney Bishop case.

On the record, the post-conviction court stated that it agreed that “holding someone
without charging them . . . [was] an absolutely intolerable, awful procedure.” Nothing in the
record suggests that the post-conviction court was a proponent or advocate of the hold or that
its ruling with regard to waiver was designed to preclude further review of the practice. The
court preceded its ruling on waiver by asking, “How has it not been waived?” It further
posited, “[I]f [petitioner] [were] the one who was being held here some 21 years ago[,] and
you’re alleging that’s some constitutional infirmity . . . , how can 21 years later in the last
phrase from his voice go[,] [‘][Oh], by the way, I just thought of that[’]? How has that not
been waived?” We must clarify that neither the constitutionality of Memphis’s forty-eight-
hour hold nor the post-conviction court’s ruling with regard to waiver is at issue in this

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appeal.6 The issue before us is whether petitioner suffered prejudice, as demonstrated by the
post-conviction court’s ruling as to waiver, by the court’s denying his motion to recuse. We
conclude that he did not. There is no basis in the record from which to conclude that any of
the post-conviction court’s rulings were made with the intent to prejudice petitioner. The
post-conviction court did not abuse its discretion in denying petitioner’s motion to recuse.

CONCLUSION

Based on our review of the record, the parties’ briefs, and applicable legal authorities,
we discern no error and affirm the judgment of the post-conviction court.

_________________________________
ROGER A. PAGE, JUDGE

6
To be clear, while petitioner alludes to a free-standing constitutional violation with regard to the
forty-eight-hour hold as well as a potential ineffective assistance of counsel argument for trial counsel’s
failure to challenge the practice, we note that: (1) no such claim is contained in the petition for post-
conviction relief or any subsequent amendment thereto; (2) the post-conviction court did not address either
claim in its order denying relief; and (3) petitioner does not, in this appeal, argue either claim. His argument
focuses simply on the prejudice that ensued from the post-conviction court’s denial of his motion to recuse.

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