Eric Bledsoe v. State of Tennessee

04/13/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 18, 2017 at Knoxville

ERIC BLEDSOE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
No. 09-06393 Chris Craft, Judge

No. W2016-00419-CCA-R3-PC

The Petitioner, Eric Bledsoe, appeals as of right from the denial of his petition for post-
conviction relief, wherein he challenged his conviction for aggravated rape, aggravated
burglary, and theft of property valued at $1,000 or more but less than $10,000. See Tenn.
Code Ann. §§ 39-13-502; -14-103; -14-403. On appeal, the Petitioner contends that his
attorney provided ineffective assistance of counsel by failing to call potential defense
witnesses during trial and failing to adequately investigate the Petitioner’s mental health
history. Following our 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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Terrell L. Tooten, Memphis, Tennessee, for the appellant, Eric Bledsoe.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Marianne L. Bell, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On October 8, 2009, the Shelby County Grand Jury indicted the Petitioner of one
count of aggravated rape, one count of aggravated burglary, and one count of theft of
property valued at $1,000 or more but less than $10,000. On April 16, 2012, the
Petitioner’s case went to trial, and the jury convicted him as charged. At the subsequent
sentencing hearing, the trial court sentenced the Petitioner to an effective sentence of
sixty-five years to be served in the Tennessee Department of Correction. On direct
appeal, the Petitioner challenged the sufficiency of the evidence supporting his
aggravated rape conviction, and this court affirmed the judgment of the trial court. See
State v. Eric Bledsoe, No. W2012-01643-CCA-R3-CD, 2013 WL 3968780, at *1 (Tenn.
Crim. App. July 31, 2013).

In its opinion, this court summarized the facts of this case as follows:

C. O. (“the victim”) testified that the incident took place on May 18,
2009. At the time, she was residing in a townhome at 303 Bishop Drive,
Memphis, Tennessee. The previous night the victim left her downstairs
kitchen window partially open. She awoke at approximately 5:00 a.m. to
what she described as a “creeping noise.” The victim initially thought the
noise was her young son moving around the house, but when she looked
out of her bedroom door, she saw a man on all fours just outside her
bedroom. The intruder was dressed in a brown denim jacket, jeans, a red
baseball cap with an “A” on it, and a “dewrag.” At trial, the victim
identified the [Petitioner] as the intruder who entered her home that night.

The victim testified that she did not react immediately upon seeing
the [Petitioner] because she was in shock. When the [Petitioner] realized he
had been seen by the victim, he stood up, entered the bedroom, turned the
lights on, and stood over the victim’s bed. The [Petitioner] told the victim,
“I’m not going to hurt you. I want some.” The victim understood his
words to mean he “wanted sex,” and she immediately began kicking and
hitting him. In response, the [Petitioner] placed both hands around the
victim’s neck and choked her until she was unconscious. When the victim
regained consciousness, the [Petitioner] was gone, and she noticed that her
underwear had been pushed to the side.

After rearranging her underwear, she went to her son’s room to
make sure he was unharmed, and from her son’s window she saw that her
vehicle was missing. The victim then went downstairs to check the rest of
her home and discovered that her car keys, student identification, some
money, and her driver’s license were missing from her purse. She noticed
her kitchen window was completely open, and the screen over the kitchen
window was missing. The victim called her mother and 911. After police
arrived at the scene, the victim was transported to the Memphis Sexual

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Assault Resource Center (“the Rape Crisis Center”), where Dr. Amanda
Taylor conducted a full physical examination of the victim. The victim’s
injuries were photographed, DNA samples were taken for a rape kit, and
she was given a Plan B pill. The underwear the victim had been wearing
during the incident was kept by the Rape Crisis Center as part of the rape
kit. After leaving the Rape Crisis Center, the victim worked with a sketch
artist to create a composite picture of her attacker, and she also gave a
statement to police.

On cross-examination, the victim denied knowing the [Petitioner]
prior to the attack. When questioned about why she failed to state, in a
written statement made during a photo identification three days after the
crime, that the [Petitioner] had assaulted or sexually assaulted her, the
victim testified that she still was too distraught and that she already had told
the police that she had been sexually assaulted.

Dr. Amanda Taylor, a sexual assault nurse examiner at the Rape
Crisis Center, testified as an expert witness in forensic nursing and sexual
assault examinations. The victim arrived at the Rape Crisis Center at 9:30
a.m. on May 18, 2009. Dr. Taylor explained that the procedure following a
victim’s arrival at the Rape Crisis Center is to first talk to the patient with
an advocate present, then to do a full physical examination, collect “labs,”
administer medications, and collect a rape kit. Any injuries a victim might
have are photographed. In this case, the victim had injuries both to her
neck and thighs, and they were fresh injuries at the time of the physical
examination. The victim also had a genital examination, which involved
both an internal and external examination. The victim did not have any
injuries to her genitals. Dr. Taylor testified that women commonly do not
have any genital injuries after being sexually assaulted and that 80% of
sexual assault victims do not show injuries in their genital area. Dr. Taylor
collected a rape kit consisting of four swabs from the victim’s mouth for
baseline DNA, four swabs from the “vulvar area,” and four swabs from the
internal genital area. The kit also included the victim’s underwear. Dr.
Taylor testified that, after a kit has been collected, all of the evidence is
sealed and sent to the Tennessee Bureau of Investigation (“TBI”) for
analysis. The kits are kept in a secure location until they are transported to
the TBI.

On cross-examination, Dr. Taylor explained that the advocate who is
present during the initial interview at the Rape Crisis Center is there to
explain to a victim the legal proceedings involved. The advocate is not
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present for the medical exam. Dr. Taylor confirmed that the victim did not
have any injuries to her genitals and that she could neither confirm nor
negate sexual abuse had taken place. The victim’s statement taken at the
Rape Crisis Center did not include anything about her underwear being
awry after she recovered from unconsciousness. On redirect, Dr. Taylor
confirmed the victim’s injuries were consistent with the statement the
victim gave at the Rape Crisis Center.

Dyane Karl, a forensic technician with TBI, testified that it is her job
to receive and label evidence and then place it in the TBI’s vault until it is
ready to be analyzed. Karl testified that the TBI will not accept evidence
that is either unsealed or not delivered by law enforcement. She received
the sealed rape kit taken from the victim’s examination from Hyun Kim, a
Memphis Police Department (“MPD”) officer. Karl testified that Francesca
Sanders, who also worked as a forensic technician at TBI, received the
DNA standard swabs of the [Petitioner] from Officer Kim.

Donna Nelson, a special agent forensic scientist assigned to the
serology[, and] DNA unit with the TBI, testified as an expert witness in the
area of DNA analysis. Her job at the TBI was to process evidence for DNA
and test any DNA evidence for possible matches. After receiving the rape
kit, Special Agent Nelson first tested the vaginal swabs for the presence of
semen. The vaginal swabs tested negative for the presence of semen. The
vulvar swabs were then tested for the presence of alpha amylase, an ezyme
found in saliva. The tests returned positive results for the presence of alpha
amylase. Because alpha amylase is found in other substances, its presence
only indicates the possibility of the presence of saliva, and is not
conclusory. The victim’s underwear tested positive for the presence of
semen, on the inside of the underwear, in the “front of the crotch area.”
After these tests were performed, the evidence was returned to the TBI’s
evidence vault, and Special Agent Nelson requested a DNA standard from
the [Petitioner]. The semen found on the victim’s underwear was matched
to the [Petitioner’s] DNA. Dr. Taylor’s report on the DNA test results
stated that the “probability of an unrelated individual having the same DNA
profile from either the African American, Caucasian, Southeastern Hispanic
or Southwestern Hispanic population exceeds the current world
population.”

Marvin Pender, a supervisor at Memphis Police Communications,
testified that the victim made an emergency call on May 18, 2009. His
testimony was based on a 911 chronology record. The dispatcher initially
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classified the call as a “prowler call,” but after talking with the victim, the
dispatcher discovered the victim was sexually assaulted, and the call was
changed to criminal assault. A dispatch to the victim’s home was made at
5:37 a.m.

Officer James Henderson of the MPD responded to the victim’s 911
call first. The victim told Officer Henderson that she had been sexually
assaulted and that she suspected the intruder had entered her home through
the open kitchen window. Officer Henderson observed that the window
was open and that its screen was on the ground outside. He also noticed
injuries on the victim’s arm and neck. Officer Henderson took a
description of the victim’s assailant, and noted that her car, keys, and
student identification had been stolen.

Officer David Galloway, a crime scene unit officer with the MPD,
photographed the crime scene and processed the kitchen window’s sill for
fingerprints. He also processed the window screen and sent it to the crime
lab to be dusted for fingerprints. The screen was not processed at the scene
because Officer Galloway determined that, due to the nature of the window
screen, better fingerprints could be obtained in the crime lab.

Sergeant Roger Wheeler of the MPD was a part of crime scene
investigation at the time of the incident. He obtained three fingerprints
from the window screen, and sent those fingerprints to be examined by a
latent print examiner.

Officer Archie Rudd of the MPD received a call over his radio to be
on the lookout for the victim’s Jeep. A vehicle matching the description
was located on the lot of a Mapco. A witness at the scene informed Officer
Rudd that a black male had been attempting to change the tire on the
vehicle. The Jeep was still on a jack when officers arrived on the scene,
and a tire was pushed under the vehicle. After talking to witnesses, Officer
Rudd then went to a nearby McDonald’s. He attempted to use the
restaurant’s surveillance cameras to identify the suspect and also located
another tire from the Jeep in a dumpster behind the McDonald’s. Officer
Rudd then returned to the Jeep and had it towed to the city impound lot.
Officer Rudd testified that either he or his trainee was the one to fill out the
paper work for towing the Jeep. Officer Rudd testified that he stands over
his trainees’ shoulders and makes sure any paperwork they fill out is
correct.

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 Sergeant Ricky Davison of the MPD testified that he processed the
victim’s Jeep after it was towed. He photographed the vehicle and also
dusted the exterior for fingerprints. The photographs were taken before and
after he dusted the outside. Sergeant Davison found fingerprints on the
exterior of the passenger door. The Jeep’s rear view mirror had been torn
off, and it was located on the rear passenger floorboard. Sergeant Davison
obtained fingerprints from the rear view mirror.

Martin Milner, a civilian employee of the MPD’s crime scene
investigation latent print unit, testified as an expert in latent print
examination. Milner received all of the fingerprint evidence collected by
MPD officers from the crime scene and from the victim’s Jeep. Milner
determined that seven of the fingerprints collected by law enforcement
officers were “of value.” The fingerprints of value were then compared to
known fingerprints using the automated fingerprint identification system
(“AFIS”), a computerized database of known fingerprints. The AFIS
returned a single identification number, 248804, as a match to the
fingerprints taken from the crime scene. This number had previously been
assigned to the [Petitioner]. Milner manually compared the fingerprints
after they were scanned using the AFIS. Two fingerprints from the torn
rear view mirror matched a known print of the [Petitioner] on more than ten
points of comparison. A thumb print taken from the victim’s window
screen matched the [Petitioner’s] known fingerprint on seven points of
comparison. A palm print taken from the passenger door of the victim’s
vehicle matched the [Petitioner] on six points of comparison. Milner
testified that he preferred not to make a comparison with less than five
points of comparison matching and that he felt very comfortable in saying
there was a match when seven points of comparison matched. He did not
like “to go below five” points of comparison when identifying matching
fingerprints.

On cross-examination, Milner confirmed his preferences for the
number of matching points when making an identification. Milner stated
that he would still report an identification between fingerprints when only
four points matched but explained that four matching points neither
confirmed nor negated a match.

Debra Finley, a fingerprint technician working for the Shelby
County Sheriff’s Office, testified as an expert witness in fingerprint
identification. She testified that fingerprints taken from the [Petitioner] the
day of the trial were the “exact same” as the fingerprints already on file for
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the [Petitioner] on between seven to ten different comparison points. The
file number attached to the previously known fingerprints was 248804. The
comparisons were made using the right thumb print and the right index
finger. On cross-examination, she admitted there are more than ten points
for comparison when identifying fingerprints.

Mark Workman, a composite layout artist with MPD’s photo
laboratory, testified that he developed a sketch of the victim’s assailant
during an interview with the victim in his office based on the description
given to him by the victim. Workman’s process is to begin creating a
sketch using a description given to him without looking at photographs. He
continuously shows the image to whoever is describing the person until
they do not wish to make any more changes. Once the picture is complete,
it is sent to the investigating officer.

Lieutenant Angela Smith of the MPD was the lead investigator on
the case. At the time of the investigation, she held the rank of sergeant.
Lieutenant Smith responded to the victim’s home, and she also responded
when the victim’s Jeep was found. She took the victim’s statement after
she had been examined at the Rape Crisis Center, and she was also
responsible for circulating the composite sketch of the suspect. After the
fingerprints taken at the crime scene and from the Jeep were matched to the
[Petitioner’s] fingerprints, Lieutenant Smith created a photo array that
included a photo of the [Petitioner] and presented it to the victim. The
victim identified the [Petitioner] from the photo array.

After the [Petitioner] was arrested, Lieutenant Smith interviewed
him, took his statement, and obtained a DNA swab. Lieutenant Smith
testified that the [Petitioner] was aware of his rights when he gave his
statement. The [Petitioner’s] statement included the following:

I open the window up went in and I was looking
around and I went upstairs and in this room and when I got in
the room the lady woke up and I start talking to her asking her
questions and stuff and when I got in the room I seen [sic] her
butt naked then I started talking to her asking where her
boyfriend was and what she was doing naked. Then she told
me he had just left then we were still talking and I asked her
if she could give me a few dollars to get something to eat
cause I was high then she started screaming and stuff and I
told her don’t be yelling cause [sic] I wasn’t going to do
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 anything to her and then yelling and kicking and then she
kicked me in my stomach and I grabbed her leg and tried to
calm her down then she swung at me so after that I opened
her legs up and had sex with her but I took it out before I had
ejaculated. I took it out and did it on the bed I didn’t have a
condom on when I left out of there I got her keys from off the
table and drove off.

When the [Petitioner] was asked if there was anything else he
wanted to add to his statement, he stated, “I really apologize for what I did
because I wasn’t in my right mind, I sorry [sic] I did [sic] her like that that
is not me.”

Officer Andy Hurst of the MPD worked in the sex crimes division at
time of the incident. He was asked by then-sergeant Smith to help her take
a statement from the [Petitioner]. Officer Hurst testified that the
[Petitioner] never appeared to be confused, “out of his mind,” under the
influence, or uncooperative during his police interview. At one point
during the interview, the [Petitioner] asked Lieutenant Smith to leave the
room. After she had left the interview room, the [Petitioner] immediately
began crying and stated it “wasn’t like him” to do what he had done. The
[Petitioner] blamed his actions on the “pills and alcohol” that he had
consumed. After this admission, Officer Hurst determined it would be best
to get a statement from the [Petitioner], and he notified Lieutenant Smith to
return to the interview room so they could take the [Petitioner’s] statement.
On-cross examination, Officer Hurst testified that the statements the
[Petitioner] made while Lieutenant Smith was absent from the room were
not included in his written statement because they were “covered in the
narrative.”

The [Petitioner] did not testify, and the defense did not call any
witnesses.

Bledsoe, 2013 WL 3968780 at *1-6.

The Petitioner timely filed a pro se petition for post-conviction relief, and upon
appointment of counsel, an amended petition was filed. The post-conviction court held a
bifurcated evidentiary hearing, which took place on three different dates: May 28, 2015;
July 10, 2015; and August 28, 2015.

I. May 28, 2015 Post-Conviction Hearing

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 On May 28, 2015, the Petitioner explained that he had concerns regarding his trial
counsel’s representation. The Petitioner claimed that he did not speak with trial counsel
regularly, claiming that they spoke “mainly when [the Petitioner] came to court and a
couple of times [when trial counsel] came to the jail.” The Petitioner said that trial
counsel visited him “twice” while he was in jail. He asserted that there were matters trial
counsel told the Petitioner he was working on, but the Petitioner never received updates
from him. He contended that trial counsel “left [him] in the dark” on matters concerning
his case.

The Petitioner also testified that he had concerns regarding the victim’s testimony
about the Petitioner and her relationship with him. The victim asserted that she had never
met the Petitioner, but he claimed that he and the victim knew each other prior to the
night of the attack. He said that he informed trial counsel that he and the victim were “in
a pre-existing relationship” and that he had “moved out” of her home. The Petitioner
insisted that he and the victim were “[b]oyfriend and girlfriend.” The Petitioner
explained that he would have called witnesses to testify at trial regarding his relationship.
He claimed that he wrote a letter to his trial counsel in which he asked trial counsel to
contact Veronica White, James Bledsoe, and Lois Bledsoe about testifying at his trial.
However, according to the Petitioner, he never received a response to this request from
his attorney.

When asked if he had the opportunity at trial to confront the victim about her
truthfulness, the Petitioner responded “[n]o” and explained that “[trial counsel] never
asked [him] anything” about what the victim “stated.” He further explained that if trial
counsel had “subpoenaed witnesses that [the Petitioner] asked [trial counsel] to call on
[his] behalf to testify that [he and the victim were] together” and that they had “seen
[them] together and know[n] that [they were] staying together, [then trial counsel] would
have known that [the Petitioner] and [the victim] had a relationship.”

Additionally, the Petitioner testified that he suffered from mental illness. He
explained that he had “PTSD, paranoid schizoaffective disorder, depressive disorder, and
probably substance dependence.” The Petitioner agreed that he had received a mental
health evaluation prior to his trial but explained that he had trouble understanding the
process and his evaluator “got frustrated with [him].”

Furthermore, the Petitioner claimed that trial counsel “never brung [sic] up [his]
mental illness that [he] told [trial counsel] about.” He insisted that his mother, Lois
Bledsoe, could have verified that he suffered from mental illness. The Petitioner stated
that he relayed this information to trial counsel, but never got a reply from him. The
Petitioner explained that he had dealt with mental illness problems “[s]ince [he] was a
kid” and agreed that “in order to function” he had “to have [his] medication.”

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Additionally, the Petitioner stated that his medication had been “upgraded” during his
time in jail regarding this incident.

The Petitioner also expressed concern about how trial counsel handled “statements
he might have made during the time that he was under the influence” and “wasn’t on [his]
medicine.” He explained that at the time he was arrested, he had not been taking his
medication. He stated that when the police began talking to him, he “told them that [he]
was not in [his] right mind[,]” that he “was under the influence[,]” and that he had not
taken his “medicine and [he] needed to see a psychologist[.]” When asked how the
police responded to his assertions, the Petitioner stated that “[t]hey never even tr[ied] to
help [him.]” He asserted that he had informed his trial counsel of this information and
that he “wanted [trial counsel] to file a motion for suppression and he never filed it.” The
Petitioner agreed that at trial, his counsel asked the interrogating officers during cross-
examination about their interview with the Petitioner, and the Petitioner claimed that the
officers responded that “they never really ask people about their mental health history[.]”

II. July 10, 2015 Post-Conviction Hearing

On July 10, 2015, the post-conviction hearing continued. On cross-examination,
the Petitioner was asked to explain what happened on the night of the incident involving
the victim. The Petitioner testified that he was at the victim’s home that night, and that
he arrived around 11:00 p.m. He said that he “used [his] key” and “walked right in” the
“front door[.]” The Petitioner asserted that the victim was expecting him. He explained
that once he was inside the home, he “took . . . a shower and laid down.” The Petitioner
stated that after he had taken a shower, his “baby mama[, Veronica White,] called [him]
about [his] daughter.” He said that after he received this phone call from Ms. White, the
victim “flipped out[,]” and they “start[ed] arguing[.]” He explained that as they were
arguing, the victim “put her hands” on the Petitioner, and they “started wrestling[.]” He
claimed that the victim “started kicking [him] and hitting [him] and [he] was trying to
leave.” He said that he “blacked out and the next thing [he knew], [he was] choking her.”
He agreed that he “put [his] hands around her throat” and “choke[d] her until she was
unconscious.” The Petitioner averred that this happened “on the bed in the bedroom” and
that after he choked the victim he left the house. He explained that he left the victim’s
house that night “in her truck” and then went to the home of his brother, James Bledsoe.
He explained that he stayed with his brother “when [he] and [the victim got] into it.”

Additionally, the Petitioner claimed that he had a sexual relationship with the
victim but that they did not have sex on the night of the incident. However, he claimed
that he had sex with the victim “three days prior.” Furthermore, the Petitioner stated that
he had taken “Loxapine,” and had used “marijuana” and “heroin” on the day of the
incident. He also agreed that he had been “drinking alcohol that night.” According to the
Petitioner, he was arrested on May 21, 2009.
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 The Petitioner testified that upon being arrested, he gave a statement to law
enforcement officers at the police station. He explained that he “didn’t talk to [the
officers] until they told [him] the only way [he] would be able to use the phone was if I
talk[ed] to them about what went on.” When asked if the officers made threats, the
Petitioner responded, “That’s the only reason [he] talked to them.” He agreed that he
made a statement to the police, that they typed it, and that he signed the typed copy. He
stated that he gave the statement “because [he] was tired and ready to go lay down” and
because he wanted “to be able to call [his] family.” He claimed that he “never paid
attention” to what was in his statement “because [he] was under the influence” of
“marijuana, heroin,” and “all type of stuff.” He further claimed that the “only thing [he]
remember[ed] telling [the police] was that three days before” he and the victim “got into
an altercation and [they] had sex.” He asserted that he told trial counsel about this
interview but that trial counsel “never responded to [his] letters.”

The Petitioner was questioned about the type of mental illness he suffered. The
Petitioner testified that he had “[m]ajor depression[,] PTSD[, a]nd paranoid
schizophrenia.” He explained that at “eight or nine”, he was diagnosed with major
depression, at “eighteen” he was diagnosed with “PTSD[,]” and “in 2006, [he] was
diagnosed with paranoid schizophrenia.” He asserted that he had taken the following
medications for these conditions: “Xanax, Seroquel, Lexapro, Celexa, Prozac,”
“Thorazine,” “Risperdal,” and “Depakote.” He stated that he was currently taking
“Zoloft, Benadryl[,] and Loxapine.” The Petitioner agreed that there were times in his
life when he did not take his prescribed medications. He explained that “[w]hen he
couldn’t get [his medications], that’s the only time” he did not take them. He
acknowledged that he functioned “better” when he took his medications.

The Petitioner claimed that he discussed his mental health with the attorney who
represented him while his case was in General Sessions court. He conceded that he knew
his attorney “submitted an order to the court to have [him] evaluated for [his] mental
health issues” and admitted that he remembered meeting with “the doctors” who
performed the evaluation. However, when asked if he knew the results of his evaluation,
the Petitioner asserted that he “never knew what . . . the outcome [was].” The Petitioner
denied being aware of a letter regarding his mental health evaluation addressed to the
General Sessions judge, which stated that the Petitioner “was competent” and had “the
ability to talk to [his] lawyer about [his] case.”

The Petitioner agreed that the case proceeded after his first mental health
evaluation. He acknowledged that he had a preliminary hearing, his case was bound over
to the grand jury, and then his case went to criminal court. Additionally, the Petitioner
confirmed that he was appointed trial counsel when his case advanced to criminal court.
The Petitioner conceded that he discussed the previous mental health evaluation with his

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trial counsel and that trial counsel “decided to have [the Petitioner’s] mental health status
reviewed[.]” The Petitioner admitted that trial counsel did this upon the Petitioner’s
request. The Petitioner insisted that he never saw the results of this evaluation and that
trial counsel never discussed it with him.

On re-direct, the Petitioner identified a document as his “mental health treatment
plan.” He stated that the document explained what he was diagnosed with and claimed
that he obtained this document by requesting it from the “prison facilities that offer
mental health” treatment. The report was entered into evidence in order to show that the
Petitioner suffered symptoms of “depression[,]” “nightmares[,]” and “paranoia[.]”

The Petitioner’s trial counsel testified that he was appointed to represent the
Petitioner in this case. Trial counsel testified that he had been practicing law since 1982
and that he had practiced criminal law since 1989. In response to the Petitioner’s
testimony, trial counsel testified as follows:

[The Petitioner] gave me – it was several jail visits by the way, I
counted at least five jail visits, at jail property. Mentioned the other day
three, today two, but it was at least five. He gave me the names of the
[potential witnesses] he [had] mentioned today, telephone numbers. I did
not turn those numbers over to investigators to track down for two reasons.
One, I wanted to talk to them myself first and I left voicemails at the
numbers given me. I had given [the Petitioner] my card any number of
times. I return all phone calls. And two, the fact that he might have known
her [had] nothing to do with consensual sex on the night alleged, the early
morning hours of May 18th, 2009.

On cross-examination, trial counsel acknowledged that he remembered
representing the Petitioner and that he remembered “submitting [the Petitioner] for a
mental health examination.” He explained that he did this “[b]ecause [the Petitioner] had
asked that and it [was his] understanding there, that they [were] a little more thorough
when they [were] being evaluated for a criminal court judge[.]” He stated that he was not
sure if that “was absolutely accurate or not[,]” “[b]ut just in case,” trial counsel requested
that the Petitioner receive a second mental health evaluation. Regarding the results of the
evaluation, trial counsel admitted that he did not “recall ever having sent any client a
copy of those letters[,]” but he asserted that he informed the Petitioner that “the doctor
said he was A-OK” and competent to stand trial. Furthermore, he agreed that he
informed the Petitioner that “whatever his mental health diagnosis” was, it would not
have been “a defense to be used at trial.”

Additionally, trial counsel testified that he kept the Petitioner informed on the
status of his case. Trial counsel asserted that he met with his client at multiple court dates
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and discussed what was occurring with the Petitioner. Trial counsel also testified that he
sent the Petitioner copies of discovery and kept him informed on developments in his
case. He again asserted that he visited the Petitioner in jail “at least five times.”

Regarding the potential trial witnesses the Petitioner asked him to call to testify,
trial counsel explained,

[The Petitioner] told me on one of those jail visits that he had met [the
victim] on Beale Street once. I asked her about that on cross[-]examination
and she denied it. If any of these folks he had given me their names, if they
had confirmed that, I would have called them in here. I’ve called people to
the stand five minutes after meeting them. Whether [the prosecutor] would
have let me get away with it or not, I don’t know, but I would have tried.

Trial counsel insisted that he had “tried personally” to contact these individuals
and insisted that “if anything had come of it, [he] would have asked an investigator to
talk to [the potential witnesses].” Furthermore, trial counsel did not “recall [the
Petitioner’s] ever saying [he and the victim] had cohabitated.” He testified that he
informed the Petitioner that whether or not he knew the victim was “irrelevant to
consent[.]” He asserted that he asked the Petitioner if any of these individuals were
present “the night [the victim] alleged this happened[,]” and the Petitioner told him that
they were not there. Furthermore, he testified that when alibi witnesses [were] family
[members], he considered them “less reliable.” Despite potentially being less reliable,
trial counsel claimed that if he “had thought it would have . . . gone to the issue of
consent, mama, daddy, brother, cousin, [he] would have called them.”

Trial counsel testified that the physical evidence offered at trial was consistent
with the victim’s version of events. Trial counsel agreed that her testimony at the
preliminary hearing, trial, and her statement to the police “were all very consistent.”
Also, he averred that the Petitioner’s “statement to the police and his story of the events
that happened that night, were very consistent with [the victim’s] version of events.”
Trial counsel stated that he “believe[d the Petitioner] said in his statement he didn’t know
[the victim].” Counsel also testified that when the victim “was asked to do the sketch [of
her attacker], there was no picture of [the Petitioner] presented, and again, it was just spot
on.” Trial counsel agreed that “physical evidence would have been consistent with her
testimony of how she regained consciousness and what her situation was at that time.”

Additionally, trial counsel explained that the defense theory at trial was that “there
was no proof of [sexual] penetration.” On re-direct, trial counsel identified a document
that was entered into evidence at the Petitioner’s trial. The document contained mug
shots of six individuals, one of which was circled. There was a handwritten note signed
by the victim, which stated, “This is the person that invaded my home, choked me, and
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stole my car.” The signed note was dated May 21, 2009. Trial counsel testified that he
used this document to support his trial strategy that “there was not penetration.”

James Bledose testified and explained that the Petitioner was his “baby brother.”
He stated that the Petitioner would often stay at his house. When asked if he was
“familiar with the Petitioner and the victim[,]” he replied that he knew “they had a few
arguments over the phone.” On cross-examination, Mr. Bledsoe admitted that he had
never met the person the Petitioner would argue with over the telephone. Mr. Bledsoe
could not remember exactly when it was that the Petitioner would come over to his house
and use the telephone.

Mr. Bledsoe also confirmed that he did not testify at the Petitioner’s trial. When
asked why, Mr. Bledsoe explained that no one called him and stated that he was supposed
to have been “called by a lawyer[,]” but he never received a call. He agreed that he did
not attend the Petitioner’s trial but testified that he visited his brother in jail “[p]lenty of
times.”

III. August 28, 2015 Post-Conviction Hearing

The post-conviction court continued the hearing to August 28, 2015. On that date,
Lois Bledsoe testified that she was the Petitioner’s mother. She stated that in May 2009,
the Petitioner “had several girlfriends[.]” She knew this because they went “to [her]
house.” She agreed that she saw “several different girlfriends purporting to be [the
Petitioner’s] girlfriend that would drive to [her] house[.]” She testified that she did not
recall their names.

Additionally, the Petitioner offered further testimony. The Petitioner testified that
“if [trial counsel] would have filed the grounds that [the Petitioner] asked according to
the defects in the indictment and trial court errors, [the Petitioner] would have probably
had a better trial than [he] had.” The Petitioner agreed that he wrote to trial counsel
“explaining the different things that [he] would have liked [trial counsel] to do.” The
Petitioner identified a collective exhibit, which consisted of a series of letters the
Petitioner sent to trial counsel. The Petitioner explained that the document contained
letters to his trial counsel making requests and letters to the “Board of Professional
Responsibility” “complaining about [trial counsel’s] not responding to [his] request[s].”
The letters were entered into evidence.

The Petitioner also raised additional claims at the post-conviction hearing related
to a lack of his DNA from the rape kit, trial counsel’s failure to retest the victim’s
underwear, and trial counsel’s failure to strike a juror who had been a victim of a robbery.
However, he failed to raise those claims on appeal. Thus, those issues are waived. See
Tenn. R. App. P. 36(a).
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 The post-conviction court subsequently denied the petition. In its order denying
the Petitioner relief, the post-conviction court found that the Petitioner offered no proof to
support his claim that his trial counsel should have called witnesses to establish that he
had a prior relationship with the victim. In its order denying the petition, the court found
that

[The Petitioner] testified that he asked his trial attorney to call
Veronica White, his brother James Bledsoe and his mother Lois Bledsoe at
trial to show that he knew her, to impeach the victim’s credibility. He
claimed that although he did not have sex with the victim that night, he did
have sex with her three nights before. No proof was offered by the
[P]etitioner that he had ever met the victim prior to the rape other than his
completely unsupported testimony. His mother, Lois Bledsoe, was called
as a witness at the hearing, and could only testify that he had a lot of
girlfriends during that time and she could not remember any of their names.
Her testimony at trial, if she had been called, would have been completely
irrelevant. His brother James testified that he never met the victim or knew
her name, but was told by the [P]etitioner that the victim was the lady he
had been arguing with on the telephone. This testimony would not have
been allowed at trial as inadmissible hearsay. His brother also testified that
the [P]etitioner mostly stayed with him for the three years prior to his
arrest. The victim was consistent in her 911 call, her statement to first
responders on the scene, in her formal statement to the police, in her
preliminary hearing testimony and in her trial testimony that she woke up to
find the [P]etitioner in her bedroom and had never met him before. She
worked with a composite layout artist with the MPD to attempt to produce
a portrait of the rapist. In the [P]etitioner’s signed confession, he admitted
that he did not know her. His trial attorney testified that the [P]etitioner
told him that he had only met her once on Beale Street, never alleging that
they had an ongoing relationship. Veronica White was never called by the
[P]etitioner as a witness for the hearing, even though they apparently have a
child together. In general, the only way a petitioner can establish that trial
counsel’s failure to interview or present a witness in support of his defense
at trial inured to his prejudice is to present the witness at the evidentiary
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
This court finds the [P]etitioner totally lacking in credibility on this issue,
and finds that this allegation must fail for lack of any credible proof of
deficient performance or prejudice to the [P]etitioner.”

The Petitioner filed a timely notice of appeal.

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 ANALYSIS

On appeal, the Petitioner argues that he received ineffective assistance of counsel
because trial counsel failed to call potential defense witnesses to testify at trial. The
Petitioner also argues that the post-conviction court erred in denying his petition “when it
concluded that Petitioner’s witness would have been excluded based on its belief that it
was inadmissible hearsay.” He spends much time in his brief focusing on the fact that the
post-conviction court never found that the testimony of James Bledsoe lacked credibility,
but that the post-conviction court instead incorrectly concluded that his testimony would
have been inadmissible hearsay and not admitted. The State responds that the post-
conviction court did not find any of the Petitioner’s evidence credible, “which appear[ed]
to encompass all of the [Petitioner’s] witnesses[.]” The State argues that “[b]ecause this
[c]ourt cannot revisit credibility findings, the [post-conviction] court’s denial of the
petition should be affirmed.” The State further argues that “[e]ven assuming the
[Petitioner’s] brother testified,” the Petitioner “cannot show any prejudice.” We agree
with the State that the Petitioner has failed to establish prejudice.

Furthermore, the Petitioner asserts that he “had mental health issues, which could
have easily explained his alleged ‘confession’ to the police.” However, the Petitioner
completely fails to support this allegation with argument. Thus, the issue is waived. See
Tenn. R. app. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).

I. Standard of Review

Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the [c]onstitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
burden in a post-conviction proceeding is on the petitioner to prove his allegations of fact
supporting his grounds for relief by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal,
we are bound by the trial court’s findings of fact unless we conclude that the evidence in
the record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456
(Tenn. 2001). 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. Id. Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo
standard with no presumption of correctness. Id. at 457.

II. Ineffective Assistance of Counsel

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 Criminal defendants are constitutionally guaranteed the right to effective
assistance of counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI;
Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of
counsel is made under the Sixth Amendment to the United States Constitution, the burden
is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a petitioner must establish
both prongs of the test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. In reviewing
counsel’s conduct, a “fair assessment of attorney 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.” Id. at 689. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. Hellard v.
State, 629 S.W. 2d 4, 9 (Tenn. 1982).

Prejudice requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.

Here, the Petitioner has failed to establish that had trial counsel called these
potential witnesses to testify there is a reasonable probability that the result of his trial
would have been different. The Petitioner argues that trial counsel should have called
several potential witnesses to testify that the victim and the Petitioner had a relationship
prior to the attack in May 2009. However, one of the Petitioner’s potential witnesses,
Veronica White, did not testify at the post-conviction hearing. Lois Beldsoe simply
testified that the Petitioner had several girlfriends, but she never identified the victim as
one of those girlfriends. James Bledsoe testified that the Petitioner argued on the
telephone with the victim, but he did not explain how he knew that the person the
Petitioner was arguing with was the victim. Additionally, this testimony arose after the

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Petitioner was convicted at trial, and these witnesses were the Petitioner’s family
members, rendering this testimony less reliable.

Furthermore, weighed against the evidence offered at trial, the probative value of
the testimony of these witnesses is minimal. The victim consistently testified that she did
not know the Petitioner. Without viewing a photo of the Petitioner, the victim worked
with a sketch artist to construct an image of her attacker, which resembled the Petitioner.
Also, the Petitioner confessed to choking and raping the victim and then leaving her
home in her car. The victim’s statement to police and her testimony at the preliminary
hearing and trial were congruous with the Petitioner’s confession. Moreover, both the
victim’s testimony and the Petitioner’s statement were consistent with the other evidence
entered at trial. The Petitioner’s fingerprints were found on the victim’s kitchen window,
and his semen was found in her underwear. We agree with the post-conviction court’s
conclusion that the Petitioner was unable to show that the result of his trial would have
been different had these witnesses testified. Accordingly, the Petitioner is not entitled to
relief on this issue.

CONCLUSION

Based upon consideration of the foregoing and the record as a whole, the post-
conviction court’s denial of the petition for post-conviction relief is affirmed.

__________________________________

D. KELLY THOMAS, JR., JUDGE

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