Juan Vargas v. State of Tennessee

02/26/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 12, 2020

JUAN VARGAS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2010-B-1410 Cheryl A. Blackburn, Judge
___________________________________

No. M2019-00620-CCA-R3-PC
___________________________________

A Davidson County jury convicted Petitioner, Juan Vargas, of first degree murder, and
the trial court sentenced him to life in prison. Petitioner appealed, and this court affirmed
his conviction on direct appeal. Petitioner filed a pro se Post-Conviction Petition, and
after a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that
ineffective assistance of counsel and prosecutorial misconduct require a new trial. After
a thorough review of the record and applicable case 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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

Timothy Carter, Nashville, Tennessee, for the appellant, Juan Vargas.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Glenn Funk, District Attorney General; and Doug Thurman,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

On direct appeal, this court summarized the testimony presented at Petitioner’s
trial as follows:
 [Petitioner] and his brother were indicted by the Davidson County
Grand Jury in April of 2010 for first degree murder and employing a
firearm during the commission of a dangerous felony. The incident giving
rise to the indictment occurred on March 1, 2010, inside Las Potrancas Bar
on Haywood Lane where Manual Santos Reyes, the victim, was shot. He
died from a gunshot wound to the head several days later.

Ahmad El-Assuli, a licensed armed security guard, was employed by
the owner of the bar, which was primarily patronized by Spanish-speaking
customers. At the time of the incident he had worked there approximately
eight months. His job required him to search the customers coming in for
“[a]ny guns, any weapons” and to “maintain[ ] peace inside the bar and
watch[ ] the customers.” Mr. El-Assuli did not speak Spanish.

On the evening of Sunday, February 28, 2010, business was slow
inside the small bar, which was located in a building that used to be a
Waffle House. A few “regular” customers, including the victim and his
friend, Antonio Hernandez, were inside the bar playing pool. The victim
was dating one of the servers, Laura Cervantes.

Around 9:00 p.m., Mr. El-Assuli searched a man entering the bar.
He did not recognize the man, who sat with several of his friends at a table
in the back corner of the bar near the pool table. Mr. El-Assuli did not see
any interaction between the men seated at the table and the victim during
the evening.

Around 2:15 a.m., Mr. El-Assuli checked the bathroom to make sure
it was empty because it was approaching closing time. When he exited the
bathroom, he saw the man get up from his table in the far corner of the bar
and walk toward the exit door. According to Mr. El-Assuli, the man
stopped near the pool table and “looked like he said something” to the
victim, possibly even whispering it to him. Mr. El-Assuli thought the
interaction between the two men lasted anywhere from ten to thirty
seconds. Then, the man pulled a gun from his waistband, pointed it to the
victim’s head, and pulled the trigger.

Mr. El-Assuli testified that he pulled out his gun, pointed it at the
man and pulled the trigger before realizing that the safety was engaged.
Mr. El-Assuli quickly put his gun back in the holster, “hoping” that the man
did not see him because the man’s “friends got all around him,” trying to
take him outside. The man “climb[ed] on top of [his friends]” and pointed
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his gun at Mr. El-Assuli and tried to shoot him three times, but “[o]ne of
[the man’s] friends pull[ed] him down.”

The group left the bar. Mr. El-Assuli waited for about thirty seconds
before going outside. He saw them get into a maroon Impala with
temporary tags. He was unable to see who was driving but watched the car
make a U-turn and drive slowly through the parking lot past the front of the
bar. Mr. El-Assuli drew his pistol and fired a warning shot at the car,
hoping to scare them and draw the attention of police. Mr. El-Assuli then
called police and an ambulance. Once the men left, he went back inside the
bar to help the victim, who was still alive.

Mr. El-Assuli’s hunch regarding his warning shot was correct.
Officer James Thomas was nearby investigating an abandoned vehicle and
heard a gunshot coming from the direction of Las Potrancas. Officer
Thomas arrived in time to see a dark-colored Impala pull out of the parking
lot.

The victim was still alive when the ambulance arrived but later died
as a result of a single gunshot wound to the head. Dr. Erin Carney, a
forensic pathologist, testified the shot was fired from an “indeterminate
range.”

As part of the investigation, Mr. El-Assuli met with detectives from
the Metropolitan Nashville Police Department. Mr. El-Assuli was shown
several photographic lineups. In one, he identified the person who pulled
down the shooter’s arm. In another lineup, Mr. El-Assuli identified the
shooter as the man “in the bottom row in the middle.” Mr. El-Assuli
explained that the photograph of the man he identified as the shooter was
labeled “5” on the lineup but [that] the lineup form he signed indicated that
he identified photograph “6.” Mr. El-Assuli explained that the officer “just
got the wrong number [on the lineup form]” because both the man in
photograph “5” and the man in photograph “6” had the first name “Juan.”
Mr. El-Assuli insisted that he picked out the person in position “5” on the
lineup, the picture “in the bottom row in the middle,” identified as
[Petitioner]. Detective Derry Baltimore confirmed that Mr. El-Assuli
picked out [Petitioner]’s photograph, in position “5” on the lineup but that
he made a mistake and improperly wrote “No. 6” on the lineup form that
was later signed by Mr. El-Assuli. When asked, Mr. El-Assuli was unable
to identify [Petitioner] at trial.

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 Mr. Hernandez was playing pool with the victim the night of his
death. There were not very many people at Las Potrancas that night, and he
was not paying much attention to any of the men sitting at the table in the
back corner of the bar. Mr. Hernandez saw the group get up to leave the
bar and “saw that they just walked by the billiard table and they shot.” It
appeared as if the victim moved his head as if he were talking to someone
before he was shot. However, Mr. Hernandez was unable to identify the
shooter. Mr. Hernandez saw the men get into a car with temporary tags.
He was unable to identify [Petitioner] at trial.

Ms. Cervantes, a bartender at Las Potrancas, was the victim’s
girlfriend. Ms. Cervantes dated the victim for approximately two years
prior to his death. The night of the shooting, the victim came to the bar
around 7:00 p.m. when Ms. Cervantes reported for work. He spent the
night playing pool with Mr. Hernandez. When Ms. Cervantes heard the
gunshot, she was in the midst of clearing empty beer bottles from the bar
area. She immediately threw her body down to the ground behind the bar
and was unable to see who shot the victim. When she got up from her
hiding place, she saw a person leaving the bar with a gun in his hand. He
was being followed by other people.

Ms. Cervantes met with police the day after the incident. She was
able to identify [Petitioner]’s brother, Aldofo Vargas, from a photographic
lineup. She knew that he was [Petitioner]’s brother from conversation at the
bar. In another photographic lineup, Ms. Cervantes identified [Petitioner]
stating that “he looks like [the person holding the pistol].” Ms. Cervantes
did not see who fired the shot.

Debora Caferri was one of [Petitioner]’s close friends. She was
“close to dating” [Petitioner] for nine or ten months prior to the incident.
Around 4:00 or 5:00 a.m. on March 1, 2010, she received a phone call from
[Petitioner]. During the conversation, [Petitioner] told her that he was
leaving town “because him and his brother, they had got in some trouble
and that a man was being killed. So they had to leave the country right
away.” [Petitioner] told her,

[s]omething about that they were at Potrancas Bar and he was
with his friends, and the guy was playing pool, and I guess
there were some mean looks. The guy was looking at them
the wrong way and they were just about to get in a fight . . .
and that’s when the shooting happened.
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 Ms. Caferri stated it was possible [Petitioner] told her “we” shot
somebody. [Petitioner] called a few days later to tell her that he was in
Missouri using a different name. She could not remember if he was going
by the name “Pedro” or “Fernando.”

Ms. Caferri was able to tell officers that [Petitioner] lived with his
brother and other relatives at an address in Nashville and that they drove a
“dark red four-door” car. At trial, she explained that [Petitioner] looked
different at trial than he did in 2010 because he had gained weight, had
longer hair, more facial hair, and his skin was lighter.

Police executed a search warrant at the residence where [Petitioner]
was living. They located an international driver’s license belonging to
[Petitioner]. The driver’s license photograph was used to prepare the
photographic lineups used by police. Several days later, police found a
maroon Chevy Impala parked in the backyard of the Vargas home. The car
had temporary tags and contained a sales receipt showing that [Petitioner]
purchased the car.

[Petitioner] was eventually apprehended in 2014. He testified at trial
that he was drinking at Las Potrancas on the night of the shooting for about
three or four hours with his brother and a friend. When they got up to
leave, he “saw that somebody was shot.” [Petitioner] claimed that he was
not close to the person when the shooting happened and did not know who
shot the person. [Petitioner] insisted that he was drunk and did not really
understand what happened. He remembered getting to the car and that his
brother drove him home that night. [Petitioner] admitted that he called Ms.
Caferri and told her about the “accident” and he “thought that [his] brother
and the other guy they had shot somebody” but that he “wasn’t sure about
what had happened.” [Petitioner] told Ms. Caferri that he was going to
work where he “was doing tile in bathrooms.” [Petitioner] continued to
work for about three more days before he was “detained with a fake ID and
. . . deported.” [Petitioner] went back to Mexico for four or five months
before illegally returning to the United States.

[Petitioner] denied having a gun at the bar or shooting the victim.
He explained that someone fired the gun over his shoulder. He left the bar
with the people who were sitting at his table. As they were leaving, his
brother “hugged” him. He denied that his brother grabbed his arm.
[Petitioner] stipulated that as part of the investigation, police identified

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 [Petitioner]’s latent fingerprints from a beer bottle collected from Las
Potrancas Bar.

State v. Juan Diego Vargas, No. M2015-02458-CCA-R3-CD, 2017 WL 678839, at *1-3
(Tenn. Crim. App. Feb. 21, 2017), perm. app. denied (Tenn. June 7, 2017). “At the
conclusion of the testimony, the jury found [Petitioner] guilty of first degree murder.” Id.
at *3. “According to the judgment form, the trial court dismissed count three of the
indictment, which charged [Petitioner] with employing a firearm during a dangerous
felony, and sentenced [Petitioner] to life in prison.” Id. “After the denial of a motion for
new trial, [Petitioner] appealed, arguing that there was insufficient evidence to sustain his
conviction.” Id. This court affirmed the judgment of the trial court on direct appeal. Id.
at *1.

Petitioner filed a timely pro se Post-Conviction Petition. The trial court appointed
counsel to represent Petitioner, and counsel filed two amended Post-Conviction Petitions,
arguing ineffective assistance of counsel, a due process violation,1 a violation of
Petitioner’s constitutional rights by the trial court’s denial of a continuance, State
prosecutorial misconduct through multiple interruptions during defense counsel’s closing
arguments, and failure to sequester the jury.

At the post-conviction hearing, trial counsel testified that he represented Petitioner
during his trial in September of 2015. He said that, in preparing for trial, he spoke with
two different witnesses who had dated the victim. Trial counsel stated that he did not
remember speaking with Mercedes Pacheco or watching a recorded interview of her but
that he would have watched a video if one existed. He said that he was able to speak with
Mr. El-Assuli in the courthouse hallway the morning of trial. Trial counsel stated that, in
an effort to impeach Mr. El-Assuli’s testimony, he asked him why he was unable to
identify Petitioner at trial.

Trial counsel said that he did not subpoena any witnesses. He said that
Petitioner’s brother, Co-Defendant Adolpho Vargas, went to Mexico and was unavailable
to testify. He stated that one material witness, “Mr. Hernandez[,] indicated [that] he did
not see anything.” Trial counsel pointed out during cross-examination of Ms. Caferri that
Petitioner’s statement to her regarding the shooting was “inclusive of himself and his
brother, not just [‘]I killed somebody[.’]” He stated that he did not recall whether he

1
Petitioner argued that, because Tennessee Supreme Court Rule 13 section 5 requires a petitioner
to obtain the services of an expert witness in order to be granted post-conviction relief under an argument
that trial counsel failed to call an expert witness, and because Tennessee Supreme Court Rule 13 section 5
also prohibits funds to retain expert witnesses for indigent petitioners except in capital cases, an indigent
petitioner in any other case does not have the same access to justice as non-indigent petitioners who have
the funds to retain expert witnesses.
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cross-examined State witnesses Detective Scott Sulfridge and Investigator Sharon Tilley.
When asked whether, after Ms. Rhonda Evans testified, he “stipulated to the rest of the
scientific evidence[,]” trial counsel responded, “If that’s what it says in the record.”

Trial counsel testified that he did not recall how many times he visited Petitioner
prior to trial or whether Petitioner contacted him via letter or phone call. He did not
recall whether he discussed with Petitioner what other witnesses would be testifying to
but stated that he was “sure [he] did.” Trial counsel stated that he discussed with
Petitioner possible defenses and plea bargains. He did not recall whether he discussed
with Petitioner his right to testify on his own behalf but stated that it was his standard
procedure to do so.

Trial counsel recalled questioning Petitioner about his border crossings during
direct examination because it was “something [he] believe[d] the jury was fully aware of”
but that he was “not sure why [he] asked or what the context was.” He knew that Ms.
Caferri had already testified that Petitioner left the country after the shooting, so he
believed Petitioner’s illegal border crossing “was kind of already out there at that point.”
Trial counsel stated, “And then also the [S]tate had introduced some evidence in the form
of pictures that had been taken upon his reentry into the country[.]” He agreed that
Petitioner’s legal status had not been brought up by the time he questioned Petitioner
regarding his illegal border crossings. He did not know whether Petitioner had an
Immigration and Customs Enforcement (ICE) “hold” at that time and did not recall if he
filed any pretrial motions regarding ICE.

Trial counsel stated that Petitioner “always indicated to [him] that he did not need
a translator,” so he only used a translator at trial. He said that his relationship with
Petitioner was “fine” and that he was sure that Petitioner asked questions.

Trial counsel did not recall whether he filed a motion for a continuance prior to
trial. He remembered speaking with Dr. Jeffrey Neuchatz prior to trial as a possible
expert witness “[t]o discuss if there [were] any issues with identification that he could
help to assist the defense.” After discussions with Dr. Neuchatz, trial counsel concluded
that Dr. Neuchatz would not have been a beneficial witness because he saw no issues
with the identification. He decided that “it would’ve been detrimental . . . to put him on
the stand.” The post-conviction court asked trial counsel, “[D]o you remember that we
were working around Dr. Neuchatz’s schedule? . . . Which is why you filed your motion
to continue. And then we managed to be able to get him here by working with his
schedule, [but] you then said you didn’t need him.” Trial counsel responded, “Yes.
Correct, Judge.”

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 Trial counsel did not recall whether the State made several objections during his
closing argument, and he did not recall what he was “trying to convey with [his] closing
argument.” He testified that he heard that “something was said” to the jury by someone
outside the courtroom but that he did not see it.

Regarding Petitioner’s direct appeal, trial counsel stated that the issue of the
photographic lineup was addressed as a sufficiency of the evidence question.

On cross-examination, trial counsel stated that, prior to Petitioner’s trial, he had
tried ten to twelve other murder trials and had been practicing law about twelve years.
He testified that he had filed several motions to suppress and motions in limine in his
career. Trial counsel stated that Detective Derry Baltimore’s inadvertent error in writing
down the wrong number from the photographic lineup was something he chose to exploit
in front of the jury because Mr. El-Assuli could not later identify Petitioner. Moreover,
he said that “there was nothing that was overly suggestive” involved in the lineup for him
to be able to file a pretrial motion to suppress. Trial counsel stated that Mr. El-Assuli’s
inability to identify Petitioner as the shooter was a “better strategy” to use in front of the
jury.

Trial counsel testified that he cross-examined Ms. Caferri regarding Petitioner’s
statement to her that “they” had shot someone and believed that was “pretty damaging
evidence.” He stated that, in his understanding, the person who addressed the jury out of
court made the statement “find the person not guilty.” Trial counsel said that, if he had
learned that the person had told the jurors to find Petitioner “guilty,” then he “absolutely
would [have]” filed a motion regarding that statement. He said that the trial court asked
each juror individually whether the person’s out-of-court statement to them had any
affect.

Trial counsel stated that, at trial, Petitioner admitted to being at the bar on the
night of the murder. Trial counsel’s theory of the case was that “someone behind him
reached over him with a gun and fired.”

Petitioner testified through a Spanish-language interpreter. He stated that trial
counsel communicated with him “very little” during the course of his representation and
that trial counsel visited him in jail “three or four times.” Petitioner stated that he asked
trial counsel to withdraw because “he was making a bigger effort on finding me guilty
than on what the case was actually.” He said that trial counsel sent a private investigator
to “pressure” him to plead guilty by playing a recording of the preliminary hearing where
Petitioner’s brother was testifying. Petitioner stated that trial counsel spoke to him
regarding testifying “a few minutes before” he actually testified. He said that trial
counsel “told [him] that [he] needed to testify, that [he] had to testify.” Petitioner
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testified that the plea offer trial counsel presented him with was “forty or life” and that
his current sentence was life in prison.

On cross-examination, Petitioner stated that he reviewed some of the discovery,
but because it was in English, he did not understand all of it. Prior to trial, he knew that
Ms. Caferri and the security guard were going to testify against him, but he did not know
that Ms. Cervantes was a potential witness. Petitioner stated that, when he asked trial
counsel to withdraw, trial counsel refused. He agreed that, prior to his testimony at trial,
he had never told trial counsel that someone else fired the shot. Petitioner stated that he
never asked trial counsel to investigate or interview anyone as a witness.

On redirect examination, Petitioner testified that someone at the prison helped him
draft some motions to the court discussing trial counsel’s representation and that
Petitioner wanted trial counsel to file certain motions on Petitioner’s behalf.

On rebuttal, trial counsel testified that he reviewed with Petitioner the potential
State witnesses’ testimonies. He said that the State’s plea offer was either twelve or
fifteen years and that he conveyed that to Petitioner several times. Trial counsel stated
that he hired a private investigator to try to “find people” to see if there were “any
angles” that trial counsel could pursue. He said that he went over the discovery with
Petitioner because he knew that Petitioner could not read English. Trial counsel stated
that he discussed whether to testify with Petitioner prior to trial and that it was
Petitioner’s decision.

Post-conviction counsel stated to the court that he attempted to locate Mercedes
Pacheco for the post-conviction hearing but was unsuccessful.

In its written order, the post-conviction court denied Petitioner’s Post-Conviction
Petition. The court concluded that trial counsel’s actions did not fall below the objective
standard of reasonableness under prevailing professional norms and that, even if it had,
Petitioner had not shown prejudice. The post-conviction court credited the testimony of
trial counsel and stated that “[n]othing in the record indicates that [t]rial [c]ounsel failed
to meet with [P]etitioner and keep him informed of the proceedings.” It stated that, in
regards to trial counsel’s questioning on Petitioner’s legal status, Petitioner did not show
that trial counsel was ineffective, and even if he had made that showing, Petitioner “still
ha[d] not demonstrated how he was prejudiced by his self-admissions of illegally entering
the country.” The post-conviction court stated that trial counsel was not deficient for not
filing a pretrial motion to suppress the photographic lineup identification because he
planned to use Mr. El-Assuli’s failure to identify Petitioner to the defense’s advantage.

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 Regarding Petitioner’s constitutional claims, the post-conviction court determined
that Petitioner did not establish that he was prejudiced by the trial court’s denial of the
motion to continue the trial to accommodate his expert witness because trial counsel
explained that the expert witness’s testimony would have been detrimental to the defense.
The post-conviction court concluded that Petitioner waived his prosecutorial misconduct
claim by not raising it on direct appeal. Nevertheless, the post-conviction court
addressed the merits of the prosecutorial misconduct claim and stated that Petitioner’s
claim did not qualify as prosecutorial misconduct under State v. Goltz, 111 S.W.3d 1, 6
(Tenn. Crim. App. 2003).

Regarding Petitioner’s jury sequestration claim, the post-conviction court found
that Petitioner did not establish by clear and convincing evidence that either the hallway
outburst or his lack of opportunity to question the individual who made the outburst
prejudiced him.

Regarding Petitioner’s due process claim, the post-conviction court noted that a
petitioner did not have a constitutional right to investigative or to expert services at post-
conviction. The court noted that some petitioners do have a statutory right to such
services but that the statutory right was exclusive to petitioners in capital cases.
Moreover, the post-conviction court found that Petitioner had access to funds for an
expert witness at trial, but his trial counsel strategically chose not to use the expert
witness.

This timely appeal follows.

Analysis

I. Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
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see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.

II. Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
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 A. Failure to Investigate

Petitioner argues that trial counsel was ineffective for failing to investigate the
evidence of a bar fight on the night of the murder and whether “other violent suspects
known to frequent the bar” were present and had possible motives to harm the victim.
The State responds that trial counsel met with Petitioner, hired an investigator who also
met with Petitioner, and contacted numerous witnesses prior to trial. Thus, the State
contends, Petitioner has not shown deficiency or prejudice.

1. Other Violent Suspects

Initially, we note that Petitioner did not raise in his petition or address at the post-
conviction hearing his claim that trial counsel failed to investigate whether “other violent
suspects known to frequent the bar” were present at the time of the murder. “As a
general rule, this court will not address post-conviction issues that were not raised in the
petition or addressed in the trial court.” Brown v. State, 928 S.W.2d 453, 457 (Tenn.
Crim. App. 1996) (citing State v. Smith, 814 S.W.2d 45, 49 (Tenn. 1991)). Because
Petitioner failed to raise this issue below, thereby depriving the post-conviction court of
the opportunity to adjudicate this claim, our consideration of the issue is waived.
Petitioner is not entitled to relief on this basis.

2. Bar Fight

Trial counsel has a duty to “conduct appropriate investigations, both factual and
legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at
933. Here, Petitioner claims that trial counsel was ineffective for his failure to investigate
a “bar fight,” yet Petitioner proffered no evidence that the shooting was related to a bar
fight. If a petitioner’s claim “is based on a failure to properly investigate, then the
evidence or witness must be produced so that the post-conviction court judge can
properly evaluate the evidence or the witness.” Demarcus Sheriff Smith v. State, No.
W2001-01353-CCA-R3-PC, 2002 WL 1482697, at *4 (Tenn. Crim. App. Mar. 8, 2002)
(citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). “This court may
not speculate as to what evidence could have been proven in the absence of clear and
convincing evidence.” Id. Because Petitioner did not produce evidence at the post-
conviction hearing that a “bar fight” was related to the shooting, Petitioner has failed to
show deficient performance or prejudice. Petitioner is not entitled to relief.

B. Eliciting Prejudicial Testimony

Petitioner argues that trial counsel was ineffective when he elicited prejudicial
testimony from Petitioner on direct examination. Petitioner claims that trial counsel’s
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questioning forced him to admit to criminal activity that was not at issue in the trial, thus
denying him a right to a fair trial. He claims that trial counsel should have discussed
“any issues with illegal border crossing” in “pretrial motions.” The State responds that
Petitioner has not established trial counsel’s deficiency or any prejudice to Petitioner’s
case.

“Because a petitioner must establish both prongs of the test to prevail on a claim
of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580. We agree with the post-conviction court that, even if trial counsel was
deficient in his questioning, Petitioner has not shown that such deficiency prejudiced him.
Petitioner presented no evidence that, absent his testimony that he was “deported” and
returned illegally, the result of his trial would have been different. Indeed, the fact that
he was forcibly removed from the country and subsequently reentered bolstered the
defense theory that he was not fleeing a crime. Petitioner has failed to show a reasonable
probability that, but for trial counsel’s eliciting Petitioner’s mention of an illegal border
crossing, the result of his trial would have been different, especially when considering the
abundance of evidence of Petitioner’s guilt. He is not entitled to relief.

C. Failure to File Motions to Suppress Co-Defendant’s Statements and Petitioner’s
Photographic Lineup Identification

Petitioner argues that trial counsel was ineffective for failing to file a motion to
suppress the hearsay statements of his Co-Defendant, Adolfo Vargas, that Petitioner had
“left the jurisdiction,” which Petitioner claims was introduced at trial by “detectives.” He
claims that the improper admission of Co-Defendant Vargas’s statement violated
“Bruton[ v. United States, 391 U.S. 123 (1968)], Crawford[ v. Washington, 541 U.S. 36
(2004)], and the Confrontation Clause of the [Sixth] Amendment” of the United States
Constitution because Co-Defendant Vargas was not subject to cross-examination.
Petitioner also argues that trial counsel was ineffective for failing to file a motion to
suppress Mr. El-Assuli’s identification of Petitioner from a photographic lineup. Because
an officer incorrectly labeled the lineup form, the State questioned Detective Derry
Baltimore as to whom Mr. El-Assuli identified during the lineup, and Petitioner argues
this was inadmissible hearsay.

The State responds that no such statement was made by detectives and that, even if
such a statement had been made, Ms. Caferri had already testified to the fact that
Petitioner had left the jurisdiction. Thus, any admission of a hearsay statement through
the detective was harmless. The State also contends that trial counsel had no reason to
attempt to suppress the photographic lineup because two witnesses testified that the

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incorrect mark on the lineup form was a mistake. Moreover, trial counsel planned to use
Mr. El-Assuli’s inability to identify Petitioner to impeach his testimony.

The State is correct that no hearsay statement by any detective is found in the
record, either on direct appeal or post-conviction appeal.2 Moreover, Petitioner’s brief
does not cite to any place in the record where a detective testified that Co-Defendant
Vargas made a statement that Petitioner left the jurisdiction. Petitioner cites only to this
exchange during the direct examination of Detective Baltimore:

[THE STATE]: Did you ask anyone if [Petitioner] was there?

[DET. BALTIMORE]: Yes, I asked [Co-Defendant Vargas] was [Petitioner] there.
I asked his brother was he there, and he told me no.

Clearly, Detective Baltimore did not testify as to a statement by Co-Defendant
Vargas that Petitioner had “left the jurisdiction.” Thus, trial counsel had no reason to file
a motion to suppress or to object to a statement that did not exist. Trial counsel was not
deficient, and Petitioner is not entitled to relief on this claim.

Regarding Petitioner’s claim that trial counsel was ineffective by failing to file a
pretrial motion to suppress the photographic lineup, the post-conviction court properly
denied Petitioner’s claim. To establish that trial counsel’s failure to file a pretrial motion
to suppress evidence resulted in prejudice, a petitioner “must show by clear and
convincing evidence that (1) a motion to suppress would have been granted and (2) there
was a reasonable probability that the proceedings would have concluded differently if
counsel had performed as suggested.” Terrance Cecil v. State, No. M2009-00671-CCA-
R3-PC, 2011 WL 4012436, at * 8 (Tenn. Crim. App. Sept. 12, 2011) (citing Vaughn v.
State, 202 S.W.3d 106, 120 (Tenn. 2006)), no perm. app. filed. “In essence, a petitioner
should present a motion to suppress hearing within the petitioner’s evidentiary hearing.”
Danny Santarone v. State, No. E2018-01312-CCA-R3-PC, 2019 WL 6487419, at *10
(Tenn. Crim. App. Dec. 2, 2019), no perm. app. filed.

Trial counsel testified that he wanted to use Mr. El-Assuli’s inconsistencies to
impeach his testimony, that there was nothing suggestive about the photographic lineup,
and that he saw no legal basis to file a suppression motion. The post-conviction court
credited trial counsel’s testimony. When reviewing the post-conviction court’s factual
findings, this court does not reweigh the evidence or substitute its own inferences for
2
To assist in the resolution of this proceeding, we take judicial notice of the record from the
Petitioner’s direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn.
2009); Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987); State ex rel Wilkerson v. Bomar, 376
S.W.2d 451, 453 (Tenn. 1964).
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those drawn by the post-conviction court. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 456 (citing Henley, 960 S.W.2d at 578). Petitioner has not shown that “(1) a
motion to suppress would have been granted and (2) there was a reasonable probability
that the proceedings would have concluded differently if counsel had performed as
suggested.” Terrance Cecil, 2011 WL 4012436, at * 8. He is not entitled to relief.

III. Prosecutorial Misconduct

Petitioner argues that excessive objections by the State during trial counsel’s
closing arguments “prejudice[ed] [Petitioner] by not providing a clear summary of the
defense’s view of the events in question.” The State responds that Petitioner has waived
this issue and that Petitioner has failed to prove that the State’s objections during closing
statements were so improper as to materially affect the verdict.

Under the Post-Conviction Procedure Act:

A ground for relief is waived if the petitioner personally or through an
attorney failed to present it for determination in any proceeding before a
court of competent jurisdiction in which the ground could have been
presented unless: (1) [t]he claim for relief is based upon a constitutional
right not recognized as existing at the time of trial if either the federal or
state constitution requires retroactive application of that right; or (2) [t]he
failure to present the ground was the result of state action in violation of the
federal or state constitution.

Tenn. Code Ann. § 40-30-106(g); see Cauthern v. State, 145 S.W.3d 571, 599 (Tenn.
Crim. App. 2004); Black, 794 S.W.2d at 756.

In Christopher Lee Blunkall v. State, this court noted that

[i]t is well established that a party may not raise an issue in a post-
conviction petition that could have been raised on direct appeal. State v.
Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000), overruled on other
grounds by State v. Terry, 118 S.W.3d 355 (Tenn. 2003). Pursuant to the
Post-Conviction Procedure Act, “[a] ground for relief is waived if the
petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in
which the ground could have been presented[.]” Tenn. Code Ann. § 40-30-
106(g).

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No. M2017-01038-CCA-R3-PC, 2019 WL 104136, at *41 (Tenn. Crim. App. Jan. 4,
2019), perm. app. denied (Tenn. Apr. 11, 2019).

Here, Petitioner had the opportunity to raise this issue on direct appeal and failed
to do so. The issue is waived pursuant to Tennessee Code Annotated section 40-30-
106(g).

Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE

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