02/23/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 5, 2017
MATTHEW PERRY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 08-02978 Paula L. Skahan, Judge
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No. W2017-00766-CCA-R3-PC
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The Petitioner, Matthew Perry, appeals the post-conviction court’s denial of his petition
for post-conviction relief in which he challenged his convictions for first degree felony
murder and attempted aggravated robbery. On appeal, the Petitioner contends that trial
counsel rendered ineffective assistance by leaving before the close of the trial, which
effectively pressured the Petitioner not to testify in his own defense, and by failing to
introduce an exculpatory photograph into evidence. Upon reviewing the record and the
applicable law, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.
Robert Golder, Memphis, Tennessee (on appeal); Stephen C. Bush, District Public
Defender; and Neil Umsted, Assistant District Public Defender (at hearing), for the
appellant, Matthew Perry.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Pam Stark, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
Trial
The evidence presented at trial established that on October 3, 2007, Mr. Asa
McGhee, the victim, was shot and killed in his own home during an attempted robbery
perpetrated by the Petitioner and another man identified only as “Big P.” The facts
relevant to this post-conviction appeal are summarized below; a complete recitation of
the evidence presented at trial is included in this court’s opinion on direct appeal. See
State v. Matthew Perry, No. W2010-00951-CCA-R3-CD, 2011 WL 3962865, at *1-8
(Tenn. Crim. App. Sept. 8, 2011), perm. app. denied (Tenn. Jan. 10, 2012).
Ms. Paris Humes, the victim’s girlfriend and mother of his child, testified that she
arrived at the victim’s home at approximately 9:30 a.m. on the morning of the murder.
She noticed the victim’s car parked in the street with its door and trunk open. Ms. Humes
got out of her car and saw a man, “Big P,” exiting the victim’s house. Ms. Humes had
never seen “Big P” before that day. She took her baby out of the car, went into the house,
and noticed that the wood on the inside of the carport door was cracked. “Big P”
followed Ms. Humes inside the house and asked if she was the victim’s girlfriend. Ms.
Humes replied affirmatively and asked where the victim was. Ms. Humes walked toward
the victim’s bedroom and could hear voices, one of which belonged to the victim. Inside
the bedroom, she saw the Petitioner, whom she knew as “ATL,” kneeling over the victim
as the victim lay on the floor between the bed and the wall. When “Big P” entered the
bedroom, Ms. Humes asked what was happening and he responded, “[Y]ou know what
this is.” The victim told the Petitioner, “[M]an, I ain’t got nothing.” Ms. Humes then
noticed that “Big P” had a gun, and she began to scream, “[P]lease don’t kill him!”
“Big P” then forced Ms. Humes and her baby into a small bathroom connected to
the victim’s bedroom. Ms. Humes heard the Petitioner tell the victim, “Man, I got your
baby in here, and your girl here now, you going to give me the money or what.” The
victim maintained that the only money he had was in his pants and urged the Petitioner to
check his car to confirm that he did not have any money. The Petitioner said they had
already checked his car. Ms. Humes then heard the Petitioner say, “[M]an, give me the
gun,” followed by three to four gunshots. She heard the victim groan after each gunshot
except the last. “Big P” told Ms. Humes to stay inside the bathroom. After she heard a
car leave, she stepped out of the bathroom to check on the victim. The victim was
wrapped in a blanket with multiple gunshot wounds. Ms. Humes heard someone banging
on the window and saw Mr. Ponsay Bratcher. Mr. Bratcher said he had called the police.
The victim died of multiple gunshot wounds: one in the chest, one in the abdomen, and
one in the head.
Ms. Humes testified that she had met the Petitioner while she was with the victim.
After introducing Ms. Humes to the Petitioner, the victim told her that the Petitioner
wanted to purchase the victim’s watch. She had seen the Petitioner at the victim’s house
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on one other occasion. She identified the Petitioner in a photographic line-up and again
at trial.
Mr. Corey Armstrong, the victim’s stepbrother, testified that he was familiar with
the victim’s possessions and had cleaned the victim’s room after emergency personnel
left. Mr. Armstrong said he could not find the victim’s wallet, a diamond earring, and the
victim’s watch. He described the watch as black with diamonds circling the face.
After his arrest, the Petitioner was interviewed by Memphis police. When asked if
he was responsible for the victim’s death, the Petitioner said, “If it wasn’t for me, it
would have never happened.” The Petitioner gave a description of “Big P” and described
the weapon that “Big P” had as a black or silver automatic handgun. The Petitioner also
gave a description of the events on the morning of the victim’s murder:
Big P called and asked me if I knew where any good green was, and I told
him my guy got it. We got together and we was fixing to go. On the way
there, he kept asking, what he got. What kind of work he working with.
We pull up to the house and park on the side of the road behind his car. I
got out of the car. I walked up and knocked on the door and ring the
doorbell. Big P got out the car with the gun and was like, man, come on, I
know he got something in there. I go back over there and I ring the side
doorbell. When I walk back to the other side Big P was bum rushing
through the door. He was walking through the house and he saw [the
victim] and he fired a shot. I went on to the side of the bed with [the
victim] and was talking to him. For a span of at least twenty to thirty
minutes I was on the side of the bed with [the victim]. Then Big P walked
in and said [the victim’s] momma was outside. Big P walked out of the
room and came back with a pistol to a girl that wasn’t [the victim’s]
momma. It was [Ms. Humes], [the victim’s] baby’s momma she had his
baby with her. I’m telling the dude to give me a gun because she didn’t
have nothing to do with it, but he didn’t give it to me, so I just told [Ms.
Humes] and the baby to go in the bathroom. Like ten minutes later, Big P
came back and was like, come on, let’s go. I was still on the side of the bed
with [the victim]. After awhile, Big P told me to go. I started to leave, I
heard one more gunshot, so I walked back in there with [the victim]. He
was fixing to die, and then I seen Big P pull off in the car, so I ran out of
the house and ran around the corner and tried to follow him. I got around
the corner and the car doors was open and the trunk was open. Big P was
in the car talking about we was fixing to go and let’s go, and I got in the car
with him. On the way to the house I was just asking him what happened.
He said he got bad and he didn’t get nothing. We got back to the Burger
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King. I got out of the car and he yanked out in my car. I left and went out
of town to Brownsville. I don’t even know where my car at. On the [way]
back … to the Burger King, Big P told me not to say his name or he knew
where my girlfriend and everybody stay at. He said don’t put my name in
nothing. I didn’t even get nothing. I told him all right. I don’t know
nothing.
The Petitioner did not testify at trial. The jury convicted the Petitioner as charged
of both offenses, and he was sentenced to an effective sentence of life in the Tennessee
Department of Correction. This court affirmed the convictions on appeal. State v.
Matthew Perry, 2011 WL 3962865, at *18. The Petitioner filed a timely post-conviction
petition.
Post-Conviction Hearing
At the post-conviction hearing, the Petitioner testified that he had a good working
relationship with trial counsel during the course of his trial. He stated that he got along
with trial counsel and trusted trial counsel to represent him. He testified that trial counsel
visited him on multiple occasions to discuss his case, during which trial counsel reviewed
the discovery with him and discussed the Petitioner’s decision regarding whether to
testify at trial. The Petitioner stated that he informed trial counsel of his desire to testify
at trial and that trial counsel never objected to his decision.
The Petitioner testified that after hearing the testimony at trial, he was certain of
his decision to testify because “a lot of stuff that was said was very inaccurate.” After the
State concluded its proof, trial counsel again discussed the Petitioner’s decision regarding
whether to testify. The Petitioner stated that he told trial counsel that he wanted to testify
but that trial counsel informed the Petitioner that he would be going out of town and
would not be present for the Petitioner’s testimony. The Petitioner stated that trial
counsel said substitute counsel would fill in for him if the Petitioner still wanted to
testify. The Petitioner testified that he did not know the substitute counsel and that he did
not want anyone else representing him. The Petitioner stated that being informed of trial
counsel’s absence was a big part of his decision not to testify, stating, “I would have been
more comfortable with him being there to testify with me.”
The Petitioner also testified as to what his testimony would have been at trial. He
stated that he had known the victim for several months, that he had previously bought
marijuana from the victim, that he formed a “closer relationship over time” with the
victim, and that he and victim did not owe each other any money. He stated that he never
went by the alias “ATL” or by any alias at all. He testified that he never had a
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conversation with the victim or with Ms. Humes about the victim’s watch and that he did
not have any interest in the watch.
The Petitioner testified that on October 3, 2007, he and “Big P” went to the
victim’s house to purchase half an ounce of marijuana. The Petitioner stated that he
never knew “Big P’s” real name and could only provide a description of the man. The
Petitioner drove his green Chevrolet Cavalier, with “Big P” in the passenger’s seat, to the
victim’s house. The Petitioner tried to call the victim, but the victim did not answer. The
Petitioner then got out of the car and knocked on the door. “Big P” came up from behind
the Petitioner, kicked in the door, and rushed inside. The Petitioner was “shocked” and
followed “Big P” inside the house. “Big P” ran towards the victim and fired a shot as the
victim ran into his bedroom. The Petitioner followed “Big P” and the victim into the
bedroom, went to the side of the bed with the victim, noticed that the victim had been
shot in the chest, and asked the victim if he was all right. The victim asked the Petitioner
why he brought “Big P” to his house, and the Petitioner responded that “Big P” wanted to
buy marijuana from the victim. “Big P” stood in the bedroom doorway, waved his gun in
the air, and demanded money from the victim. “Big P” then left the room.
The Petitioner testified that he did not have his cellular phone with him, that he
tried to call for help on the victim’s cellular phone, but that it was not working properly.
The Petitioner stated that he never went outside with “Big P” during the incident. When
“Big P” came back inside the room, Ms. Humes and her baby were with him. The
Petitioner told “Big P” that Ms. Humes “had nothing to do with it” and told Ms. Humes
to “just be cool” and to “go in the bathroom.” The Petitioner testified that after Ms.
Humes went into the bathroom, “Big P” continued to demand money from the victim,
and the victim responded that he did not have any money. The Petitioner stated that he
asked “Big P” for the gun multiple times. “Big P” did not give him the gun, and instead,
“Big P” fired two more shots and ran out of the room. The Petitioner remained in the
room for a “little while” and left after he believed the victim had died. The Petitioner
stated that, once outside, “Big P” pointed the gun at him and ordered him to get in the
car, and the Petitioner complied. While “Big P” drove the Petitioner’s car, “Big P”
threatened the Petitioner and his family. “Big P” kicked the Petitioner out of the car
while in a Burger King parking lot. The Petitioner testified that he never saw his car
again and that he was not aware of any items or money taken from the victim.
The Petitioner testified that he found a photograph from the crime scene of what
he believed to be the victim’s allegedly missing watch (“post-conviction photograph”)
while reviewing the discovery material sent to him by trial counsel after the trial had
concluded. He stated that the watch in the photograph looked like the watch in another
photograph (“trial photograph”) that was introduced into evidence by the State during the
trial. The trial photograph was a photograph taken before the homicide, and it showed
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the victim sitting in a chair, with a watch lying face-up in the cup holder. The post-
conviction photograph found by the Petitioner depicted a watch lying face-down on a
table. The Petitioner testified that when he asked trial counsel about the post-conviction
photograph, trial counsel responded that he had never seen it before.
On cross examination, the Petitioner acknowledged that trial counsel was present
through closing arguments and did not leave until jury deliberations began. He
acknowledged that he was advised of his right to testify and that he did not tell the trial
court that his decision not to testify was due to trial counsel informing him that trial
counsel would not be present during the his testimony.
Trial counsel testified at the post-conviction hearing that he and the Petitioner got
along well and that he discussed the Petitioner’s decision of whether to testify “[a]lmost
every time [they] spoke.” After the State concluded its proof, trial counsel spoke with the
Petitioner about his decision of whether to testify again. The Petitioner asked for trial
counsel’s opinion, and trial counsel told the Petitioner that the decision was for the
Petitioner alone to make. Trial counsel told the Petitioner that he was concerned that the
Petitioner’s testimony could undermine their case strategy. Trial counsel explained that
because the Petitioner’s statement to the police placed the Petitioner at the scene of the
crime, the goal at trial was to show the jury that the Petitioner was a “naïve” juvenile who
did not realize what he was getting into when taking “Big P” to the victim’s house that
day. Trial counsel told the Petitioner that if the Petitioner chose to testify, then the jury
might realize that the Petitioner was an intelligent man, which would undermine his
strategy. Trial counsel also explained to the Petitioner that he would have to answer
some difficult questions such as why he followed “Big P” into the house, why he did not
call the police, why he left with “Big P,” and why he fled town. Trial counsel testified
that he did not tell the Petitioner he would be out of town if the Petitioner chose to testify,
stating, “I had no intention of leaving [] court until the trial was over[,] no matter how
long it took.” Although trial counsel did not remember when he told the Petitioner that
he would be leaving, he stated he knew “for a fact” that it was not when the Petitioner
was determining whether to testify.
Trial counsel testified that he did leave the trial while the jury was still
deliberating and before the verdict was read because his wife had bought tickets to a
concert in Nashville for that night. He testified that he told his wife he might not be able
to make it to the concert if the trial had not concluded yet. Once the jury was
deliberating, trial counsel left, and one of his employees took the jury’s verdict in his
absence.
Trial counsel testified that midway through the State’s proof at trial, the State
informed him that it had an additional witness who would testify as to the missing watch.
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Trial counsel then learned about the trial photograph, which was later entered into
evidence by the State. When shown the post-conviction photograph, trial counsel
testified that it could have been the same watch that was in the trial photograph.
However, as the post-conviction court noted, the trial photograph was not available
during the post-conviction hearing for trial counsel to compare with the post-conviction
photograph.
Following the hearing, the post-conviction court entered an order denying the
Petitioner’s post-conviction petition. Regarding the Petitioner’s argument that trial
counsel effectively pressured the Petitioner into not testifying, the court held that the
Petitioner failed to show deficiency and prejudice. The post-conviction court credited the
testimony of trial counsel over the Petitioner’s testimony and found the Petitioner’s
argument to be “implausible and in direct contradiction to [the Petitioner’s] previous
sworn testimony.”
In regard to the Petitioner’s argument that trial counsel was ineffective by failing
to introduce the post-conviction photograph of the missing watch, the post-conviction
court found that the Petitioner failed to show deficiency. The court noted that the
Petitioner presented only his own testimony about the photograph and that trial counsel
was not questioned about when he became aware of the photograph’s existence or if he
would have entered the photograph had he been aware of it during trial. The court also
noted that the Petitioner did not show that the photograph was what the Petitioner
purported it to be — a crime scene photograph taken by investigators of the victim’s
house. The Petitioner timely appeals.
ANALYSIS
The Petitioner argues that trial counsel provided ineffective assistance by telling
him that trial counsel would not be present if the Petitioner chose to testify at trial and by
failing to introduce the post-conviction photograph at trial.
To be granted post-conviction relief, a petitioner must establish that his conviction
or sentence is void or voidable due to the abridgement of any constitutional right. T.C.A.
§ 40-30-103. The petitioner has the burden of proving the allegations of fact by clear and
convincing evidence. Id. § 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Grindstaff, 297
S.W.3d at 216 (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).
Factual findings by the post-conviction court are conclusive on appeal unless the
evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010).
This court may not substitute its inferences for those drawn by the trial judge, and
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“questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial
judge.” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Claims of ineffective
assistance of counsel in post-conviction petitions are regarded as mixed questions of law
and fact. Grindstaff, 297 S.W.3d at 216. Thus, our review is de novo with no
presumption of correctness. Pylant v. State, 263 S.W.3d 854, 867-68 (Tenn. 2008)
(citing Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007)).
The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution guarantee the accused the right to effective assistance of
counsel. To prevail on a claim for ineffective assistance, a petitioner must prove “that
counsel’s performance was deficient and that the deficiency prejudiced the defense.”
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).
To demonstrate deficiency, a petitioner must show “‘that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’” Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting
Strickland, 466 U.S. at 687). A petitioner “‘must show that counsel’s representation fell
below an objective standard of reasonableness’ guided by ‘professional norms’ prevailing
at the time of trial.” Id. (quoting Strickland, 466 U.S. at 688) (internal quotations
omitted). On review, counsel’s performance is not to be measured by “20-20 hindsight.”
Id. at 277. Instead, there is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. (citing State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999)). The court must presume that counsel’s acts might be “‘sound
trial strategy,’” and strategic decisions are “‘virtually unchallengeable’” when made after
a thorough investigation. Id. (quoting Strickland, 466 U.S. at 689).
To establish prejudice, “a petitioner must establish ‘a reasonable probability that,
but for counsel’s unprofessional errors, the results of the proceeding would have been
different.’” Id. (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. A petitioner must
show that counsel’s performance was so deficient that it deprived the petitioner “of a fair
trial and called into question the reliability of the outcome.” Finch, 226 S.W.3d at 316
(citing Burns, 6 S.W.3d at 463). “Failure to establish either deficient performance or
prejudice necessarily precludes relief.” Felts, 354 S.W.3d at 276.
I. Right to Testify
The Petitioner argues that trial counsel provided ineffective assistance when he
informed the Petitioner that trial counsel would not be present if the Petitioner chose to
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testify, which effectively pressured the Petitioner into not testifying. The Petitioner
maintains that prejudice should be presumed under United States v. Cronic, 466 U.S. 648
(1984), because his testimony constitutes a critical stage of a judicial proceeding and his
right to testify was affected. Alternatively, the Petitioner argues that this court should
find actual prejudice because there is a reasonable probability that the jury would have
convicted him of a lesser-included offense had he testified at trial.
The Petitioner testified at the post-conviction hearing that his decision not to
testify rested on being informed by trial counsel that trial counsel would not be present
during the Petitioner’s testimony if he chose to testify. The testimony of trial counsel,
however, directly contradicted that of the Petitioner. Trial counsel testified that he did
not inform the Petitioner that he would be leaving the trial when the Petitioner was
deciding whether to testify. Trial counsel informed the Petitioner that the decision to
testify was for the Petitioner to make, but trial counsel did provide his own opinion
regarding how Petitioner’s testimony could affect the overall strategy of the case. The
Petitioner acknowledged that during a jury-out hearing at trial, he stated that he had been
advised of his right to testify and that he was making his decision voluntarily. He also
acknowledged that he did not tell the trial court that his decision was based on trial
counsel informing him that trial counsel would be absent during his testimony. The post-
conviction court credited the testimony of trial counsel over that of the Petitioner, and the
evidence does not preponderate against this finding. See Ward, 315 S.W.3d at 465.
Accordingly, the Petitioner has not established that trial counsel informed the Petitioner
that he would be absent during the Petitioner’s testimony and thus did not show
deficiency. Because the Petitioner has failed to establish that trial counsel was deficient,
he is not entitled to relief under the Strickland standard, and we need not reach the issue
of prejudice. See Felts, 354 S.W.3d at 277.
The Petitioner also argues that prejudice should be presumed under Cronic
because he believed trial counsel would be absent if he chose to testify and because the
Petitioner testifying is a critical stage of a judicial proceeding. In Cronic, the United
States Supreme Court determined that exceptional circumstances may exist “that are so
likely to prejudice the accused” that a denial of a defendant’s Sixth Amendment right to
counsel is presumed. 466 U.S. at 658. “Most obvious, of course, is the complete denial
of counsel.” Id. at 659. Exceptional circumstances also include the complete failure by
counsel “to subject the prosecution’s case to meaningful adversarial testing,” the denial
of the right to cross examination, and where “counsel labors under an actual conflict of
interest.” Id. 659-62, n.31.
Although the State’s brief is silent as to this issue, we conclude that the Petitioner
is not entitled to relief under Cronic. The evidence established that trial counsel was only
absent during jury deliberations and the reading of the verdict, and the Petitioner
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concedes in his brief that he is not challenging trial counsel’s absence during these stages.
Instead, the Petitioner maintains that trial counsel’s threatened absence pressured the
Petitioner into not testifying. As the post-conviction court found, however, trial counsel
did not inform the Petitioner at the time he was deciding whether to testify that trial
counsel would be leaving early. Since the Petitioner has not established that his decision
not to testify was influenced by trial counsel’s threatened absence, the Petitioner is not
entitled to relief, and we need not determine whether prejudice should be presumed under
Cronic.
II. Photograph
The Petitioner argues that trial counsel was deficient in failing to introduce the
post-conviction photograph into evidence for the purpose of showing that the missing
watch had not be stolen or to impeach the testimony of Ms. Humes.
The Petitioner asserted that the post-conviction photograph was taken of the crime
scene and that the watch in the photograph was in fact the same watch that was in the trial
photograph admitted by the State. The Petitioner testified at the post-conviction hearing
that he found the post-conviction photograph while reviewing his discovery material after
his trial had concluded. He also testified that he asked trial counsel about the photograph
and that trial counsel responded that trial counsel had never before seen the photograph.
However, during the post-conviction hearing, trial counsel was not questioned about his
knowledge of the photograph’s existence. Trial counsel was merely asked he if believed
the watch in the post-conviction photograph was the same watch that was in the trial
photograph. Trial counsel was not provided with the trial photograph to review. He was
not asked when he became aware of the photograph’s existence or whether he would
have used the photograph in the trial had he been aware of it. As the post-conviction
court noted, the only evidence that trial counsel was unaware of the post-conviction
photograph was the testimony of the Petitioner. Accordingly, the Petitioner has failed to
meet his burden of establishing by clear and convincing evidence that trial counsel was
aware of the photograph and deficient in failing to introduce the photograph. See
Grindstaff, 297 S.W.3d at 216; T.C.A. § 40-30-110(f).
Moreover, we cannot conclude that there is a reasonable probability that the
verdict would have been different even if the watch in the post-conviction photograph
was the same watch allegedly stolen from the victim. See Felts, 354 S.W.3d at 276.
Even if the post-conviction photograph had been admitted during the trial, the evidence
would still support the convictions. On direct appeal, this court determined that the
evidence was sufficient to support the attempted aggravated robbery conviction because
the Petitioner demanded money from the victim, not because the Petitioner attempted to
take the victim’s watch. See Matthew Perry, 2011 WL 3962865, at *18. Ms. Humes
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testified that she heard the Petitioner demand money from the victim and the victim
respond that he did not have any money. In addition to testifying about the allegedly
missing watch, Mr. Armstrong testified that the victim’s earring and wallet were missing
following his death. This evidence supports the conclusion that the Petitioner attempted
to commit aggravated robbery, even if the watch was not taken. See T.C.A. §§ 39-12-
101; 39-13-401; 39-13-402. Because the Petitioner has failed to establish both deficiency
and prejudice, he is not entitled to relief on this claim.
CONCLUSION
Based on the foregoing reasons, we affirm the post-conviction court’s denial of the
Petitioner’s post-conviction petition.
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JOHN EVERETT WILLIAMS, JUDGE
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