James L. Dowell, III v. State of Tennessee

07/05/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 23, 2017 at Knoxville

JAMES L. DOWELL III v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2010-B-1177 Cheryl A. Blackburn, Judge

No. M2016-01364-CCA-R3-PC

The Petitioner, James L. Dowell III, appeals from the denial of his petition for post-
conviction relief, wherein he challenged his jury conviction for first-degree felony
murder. In this direct appeal as of right, the Petitioner raises the following ineffective
assistance of counsel claims: (1) whether trial counsel failed to adequately meet with the
Petitioner and effectively communicate regarding the details of his case and defense
strategy; (2) whether trial counsel failed to call a witness to establish a duress defense,
thus, leading to no defense being presented at all; and (3) whether trial counsel failed to
convey a plea offer made by the State. After a thorough review of the record, 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.

Nathan D. Cate, Nashville, Tennessee, for the Appellant, James L. Dowell III.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn R. Funk, District Attorney General; and Megan M. King, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION
FACTUAL BACKGROUND

This case arises from a December 10, 2008 robbery at Ace Market in Davidson
County, Tennessee, during which one of the employees, Lindergh Thompson (“the
victim”), was shot three times, resulting in his death. For his participation in the robbery,
the Petitioner, along with Rivera L. Peoples and Brian I. Moreland, was indicted on
charges of first degree felony murder, attempted second degree murder (involving
another victim, Antionette Bell, who was also shot during the robbery), and employing a
firearm during a dangerous felony. The Petitioner was tried separately from his co-
defendants.1

The State dismissed the attempted second degree murder and firearm charges, and
the Petitioner proceeded to a jury trial on the first degree felony murder charge. See
Tenn. Code Ann. § 39-13-202 (felony murder). His first trial resulted in a hung jury, but
at his second trial in July 2012, he was found guilty as charged of first degree felony
murder. Thereafter, the trial court sentenced him to a life sentence in the Tennessee
Department of Correction.

A. Trial. Gift Bondwe, a cashier at Ace Market, recalled that, on December 10,
2008, the victim was killed while taking out the trash. During a later autopsy, it was
determined that the victim was shot three times.

The parties presented the following evidence at the Petitioner’s second trial:

Bondwe described the events leading up to the shooting, saying that
Bondwe was at the cash register organizing the money received from sales
that evening. [The victim] went to take the trash to the dumpster, and
Bondwe heard a “boom boom.” . . . Bondwe recalled that a customer who
had previously left the market came running back into the market, saying
“[T]hese people are crazy . . . they’re shooting outside.” Bondwe said he
walked to one of the store coolers while calling 911 to report the shooting.

....

Bondwe said that, when police arrived, he recounted the events for
them, including that a customer had returned to the store after hearing the
gunfire outside. When he returned to the inside of the store, he saw the
customer, Antionette Bell, crawling from a second cooler in the store away
from a pool of blood. At that point, he realized that she had also been shot.

Bondwe testified that the store had some video surveillance of the
shooting and that he gave the video footage to police officers. The video of
1
Rivera L. Peoples was also tried and convicted by a jury of first degree felony murder for his
participation in these events. See State v. Rivera L. Peoples, No. M2010-02162-CCA-R3-CD, 2012 WL
2356584, at *7 (Tenn. Crim. App. June 20, 2012).
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the shooting was then played for the jury. The video showed the
[Petitioner’s] entering the store. Bondwe recalled that, when the
[Petitioner] entered the store, he spoke to Bondwe, saying, “[W]hat’s up,
Chicken George,” which was a statement both men recognized as a
greeting. The [Petitioner], who was on the phone, walked to the back and
asked Bondwe several times the price on different items, which Bondwe
found unusual. [The victim] opened the door “a little bit,” and, in doing so,
[the victim] was ensuring that everyone was out of the store before [the
victim] took the trash to the dumpster. Bondwe said that [the victim] was
“very cautious” about security. The video depicted the [Petitioner’s]
leaving the store and [the victim’s] leaving to take out the trash. The
footage showed Bell coming into the store, showed her leaving, and briefly
showed the shooter.

During cross-examination, Bondwe testified that the [Petitioner]
called him “Chicken George” because Bondwe used to cook “good
chicken.” Bondwe testified that he was alone in the store after [the victim]
left to take the trash to the dumpster and that the [Petitioner] exited the
store.
Antionette Bell testified that she was shot in her left arm on
December 10, 2008, while she was at Ace Market. She described the
events leading up to the shooting, saying that she walked from her home to
the market, where she often shopped, to purchase beer and cigarettes.
Before entering the store, she noticed a gray or silver car and saw two men,
one of whom was the [Petitioner], getting out of the car. Bell asked the
[Petitioner] if he “had a light.” The [Petitioner] said, “[N]o, baby girl, I
ain’t got no light.” He then felt in his pockets and said, “[Y]eah, I do got a
light,” and he lit her cigarette. The [Petitioner], as seen on the video
footage, entered the store. Bell said she stood at the front corner of the
building when the [Petitioner] exited the store and [the victim] came
outside with the trash. Bell said she did not interact with the [Petitioner] at
this time, and she stayed in front of the market smoking her cigarette.

Bell testified that she then heard a voice say, “[G]o get the money
out of the register,” to [the victim], and she heard [the victim] respond to
the speaker to “go get the money” themselves. After that, Bell heard a
“couple” of shots, and she ran inside the store and hid inside one of the
store coolers. She said that, at some point, she felt a burn. She opened a
beer and began to drink it and then lost consciousness. When she regained
consciousness, she began to crawl out of the cooler.

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 During cross-examination, Bell testified that she could not identify
the shooter. She agreed that she had been drinking that evening but denied
that she was intoxicated. She said that she had smoked marijuana earlier
that day but denied using crack cocaine that day. Bell said she saw [co-
defendant] Brian Moreland at the market the evening of the shooting and
that he gave her a dollar. Bell admitted that she had previously been
convicted of two counts of attempted second degree murder.

Lieutenant Matt Pylkas, with the Metropolitan Nashville Police
Department, testified that, when he received the call about this shooting, he
traveled a few miles north of the market and then back to the market,
hoping to find a suspicious vehicle or person of interest fleeing the market.
He said that when he arrived at the 1000 block of Edgehill, he noted a
vehicle that fit the description of the vehicle involved in this shooting, a
silver Chevy Impala with a spoiler on the rear, some damage to one of the
quarter panels, and a temporary tag. The lieutenant said he approached the
unoccupied vehicle. He noted that it was a cold and rainy December night,
and he noted that there was heat emanating from the engine. Lieutenant
Pylkas looked inside the vehicle, and he saw what appeared to be black
stocking caps. . . .

....

Jerome Oseibonsu testified that he owned Kobby’s Auto Sales in
Nashville. In 2009, police contacted him about a car that he had sold to a
man named Rivera Peoples[, also a co-defendant]. He said the bill of sale
showed that he sold the car, a 2000 gray Chevrolet Impala, on November
24, 2008. [Co-defendant] Peoples provided Oseibonsu several references
in the event that Peoples defaulted on the loan. The first reference was
Peoples’s brother, Antonio Harris. The other references were [co-
defendant] Brian Moreland, the [Petitioner], and Shameka Harris.

....

[Co-defendant] Moreland testified that, on December 10, 2008, he
was involved in attempting to rob the Ace Market with Peoples, Harris, and
the [Petitioner]. He said that Harris and Peoples were brothers and that the
[Petitioner] was dating their sister. Moreland said he also dated one of
Harris’s and Peoples’s sisters. Also, Peoples was the father of the
[Petitioner’s] sister’s children. Moreland testified that, on the night of the
attempted robbery, Peoples was driving an Impala that he had recently
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 purchased. A few hours before going to the market, the men began
discussing how they needed money. Moreland said all of the men
participated in this discussion, and they settled on robbing the Ace Market.
Moreland said the plan for the robbery was that the [Petitioner] would enter
the store and see who was present. Then, Moreland and Harris would enter
the market with their faces covered with bandanas and rob the clerk.

Moreland said that, when they arrived at the market, they sat in the
car for a period of time discussing the robbery plan. The [Petitioner] then
got out of the car and went into the market to see who was there. While the
[Petitioner] was in the store, Peoples moved his car to another location, an
alley beside the store. The [Petitioner] was on the phone with Peoples
while the [Petitioner] was inside the store. Moreland said Peoples said that
they were good to start the robbery, so Moreland and Harris began putting
on their bandanas to start the robbery. Moreland recalled that, as the
[Petitioner] exited the store, another man came out also, carrying a trash
bag and walked toward the dumpster. Harris, who had his bandana on,
“hopped” out of the car and shot the man. Harris then ran to the front of the
store and shot in the store, and then he came back around the car and shot
the man carrying the trash bag again. Harris then got inside the car. The
four men left the market and went to Harris’s house.

Moreland testified that the [Petitioner] did not say anything when he
returned to the car from the market. He said that there was no
communication between the [Petitioner] and Harris before Harris got out of
the car and shot the man taking trash to the dumpster.

During cross-examination, Moreland testified that he used his own
free will when he participated in this robbery. Moreland said he did not go
into the store to rob it because Harris jumped out of the car and shot the
man. He conceded that he did not hear what the [Petitioner] said to Peoples
during their phone conversation. He denied that he shot anyone and denied
that he had said that “some lady grabbed something out of [his] hand and
that’s why [he] shot her.” He also denied saying that “the old man got in
the crossfire and [he] didn’t mean to kill him.” Moreland agreed that he
denied his involvement in this crime when he was first questioned by
police. Moreland agreed that he had previously been convicted of criminal
impersonation.

State v. James L. Dowell, III, No. M2011-02096-CCA-R3-CD, 2012 WL 3939978, at *1-
5 (Tenn. Crim. App. Sept. 11, 2012), perm. app. denied (Tenn. Feb. 12, 2013).
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 Forensic testing was performed on the evidence submitted by police involved in
investigating this case. According to Belinda Shea, a civilian latent fingerprint examiner
with the Metropolitan Nashville Police Department, the Petitioner’s fingerprints were
found on a dryer sheet box located inside Peoples’s car. Dowell, 2012 WL 3939978, at
*3. Shea also matched fingerprints from CDs in Peoples’s car to those of co-defendants
Peoples and Moreland. Id. Tennessee Bureau of Investigation (“TBI”) Agent Alex
Brodhad testified that the bullet recovered from the victim’s body and all of the cartridge
cases recovered from the crime scene were fired by the same nine-millimeter gun. Id. at
*4. TBI Agent James Russell Davis, II, testified that he found gunshot residue on four
gloves from the car. Id. TBI Agent Michael Turbeville testified that the Petitioner “was
consistent as a contributor of DNA on several items found in Peoples’s car,” including
two pairs of gloves and a toboggan hat. Id. Agent Turbeville also confirmed the
presence of the Petitioner’s DNA on two bandanas and a cigarette butt. Id.

Because it is relevant to the issues presented in this appeal, we also note that, at
trial, the Petitioner sought to offer the testimony of Antonio Harris, one of the men
involved in the robbery.

The [Petitioner] posited that Harris would testify that the [Petitioner] said
he did not want to participate in the robbery before Harris shot and killed
[the victim]. The State told the trial court that, if Harris so testified, the
State wanted to cross-examine Harris about robberies that Harris and the
[Petitioner] both admitted they committed together. The trial court held a
jury-out hearing to determine to what extent Harris would be subject to
cross-examination by the State.

During the jury-out hearing, Antonio Harris testified that the
[Petitioner] had no involvement in this shooting. Harris took responsibility
for the shooting and said that he had pled guilty to charges stemming from
it. Harris explained that he asked the [Petitioner] to be a lookout during the
robbery. Harris said that, “once [the Petitioner] did that[,]” the [Petitioner]
“changed his mind about the acts.” Harris said that Harris “jumped out of
the car” continued doing “what [he] intended to do from the beginning.”
Harris said the [the Petitioner] had no other involvement in this crime.

During the jury-out cross-examination, Harris testified that he and
the [Petitioner] were together for a couple of hours before the shooting. He
said that the two men met up with a third man, Harris’s brother [co-
defendant] Peoples, and then, shortly before the murder, they met up with a
fourth man, [co-defendant] Moreland. Harris said he proposed that the four
men rob the market, and, initially, the [Petitioner] and Peoples refused.
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 Harris recalled that Moreland was intoxicated and “out of it mentally,” so
he did not respond. Harris said that he had a gun in his hand at the time and
that he threatened the [Petitioner] and “intimidat[ed]” him so that the [the
Petitioner] would assist in the robbery. Harris testified that the [Petitioner]
only went into the market because of Harris’s threats against him. He
similarly testified that the only reason Peoples participated was because of
his threats. He said both men knew that he would hurt them if they did not
participate in the robbery.

Harris conceded that, a few weeks before the Ace Market shooting,
he, the [Petitioner], Moreland, and Peoples invaded a family home in the
Green Hills area of Nashville.2 The men covered their faces with bandanas,
and Harris brandished a weapon. The men forced the people in the house,
at gunpoint, to get into a car and drive to two automatic teller machines
(“ATMs”). The men used the people’s personal identification numbers to
withdraw money from their accounts. Harris said that he had forced the
[Petitioner] to participate in those kidnappings and robberies as well.
Harris testified that, after this robbery, the [Petitioner] continued to
associate with Harris because the [Petitioner] had no choice and because the
[Petitioner] was afraid of Harris. Harris said[,] “I had more pull on the
street than you can imagine.”

Harris conceded that he and the [Petitioner] were members of an
organization known as “Growth and Development.” He further conceded
that other people called the organization “Gangster Disciples.” Harris
testified that the colors often associated with his organization were blue,
grey, and black. Harris agreed that the bandanas found in the car were
colors associated with his organization. Harris acknowledged that he had
“tear drop tattoos,” and he explained that the tattoos meant that he had “lost
a couple of [his] friends.” Harris agreed that the tattoos could also mean
that he had killed a “couple of people.”

Harris testified that the [Petitioner] was dating one of Harris’s
sisters. He said he and his sister both lived in the Edgehill area but that
they lived separately.

2
The same four men participated in two home invasions on November 23, 2008, and were thereafter
charged with five counts of aggravated robbery and five counts of especially aggravated kidnapping. For
a detailed recitation of the facts of those offenses, refer to State v James L. Dowell III and Rivera L.
Peoples, No. M2012-00520-CCA-R3-CD, 2013 WL 1804191, at *3-13 (Tenn. Crim. App. Apr. 30,
2013).
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 Harris testified that the bandanas were in the car before he decided
to commit the robbery. He explained that his “dress code” required that he
wear a bandana if he entered a club or similar establishment. When he
decided to commit the robbery, he pulled into the market and told the
[Petitioner] to go inside the store and see how many people were there.
Harris said he got out of the car before the [Petitioner] returned to the car.
Harris said that, as he approached the store, he saw [the victim] taking out
the trash. Harris recalled that, when he returned to the car after shooting
[the victim], the [Petitioner] was in the car, and the four men left
immediately after the shooting.

The State questioned Harris about when, during the robbery, the
[Petitioner] allegedly told Harris that the [Petitioner] no longer wanted to
participate in the robbery, given Harris’s testimony that the [Petitioner] did
not return to the car until after Harris had left the car to shoot [the victim].
Harris said the [Petitioner] told him this when Harris “was in the car.”
Harris then said the [Petitioner] got back to the car before Harris exited the
car and shot Thompson. He clarified that it was at this point that the
[Petitioner] said he did not want to participate in the robbery.

During the jury-out redirect examination, Harris testified that he got
out of the car twice on the evening of the shooting. He said he was in the
alley both times and that the [Petitioner] said he no longer wanted to
participate in the robbery before Harris got out of the car the second time.

Defense counsel told the trial court that the defense wanted to
introduce Harris’s testimony to show that the Defendant no longer wanted
to participate in the robbery. The State countered that Harris’s testimony
would allow questioning about Harris and the [Petitioner’s] participation in
previous robberies together. The trial court ruled that if Harris testified that
the [Petitioner] expressed his desire to no longer participate in the robbery
then the State could ask Harris questions to determine whether Harris was
being truthful in this testimony. Those questions, the trial court stated,
included questions about their relationship and their previous joint criminal
ventures. Ultimately, the [Petitioner] chose not to call Harris to testify
based on the trial court’s ruling.

Dowell, 2012 WL 3939978, at *5-7.

B. Direct Appeal. The Petitioner appealed the jury’s verdict to this court, arguing
(1) that the trial court erred when it ruled that, if the Petitioner presented the testimony of
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Antonio Harris, his accomplice, the State could cross-examine Harris about past criminal
activities in which both the Petitioner and Harris willingly participated; and (2) that the
evidence was insufficient to sustain his conviction for felony murder. This court affirmed
the trial court’s judgment. See Dowell, 2012 WL 3939978, at *1, *12.

Regarding the Petitioner’s first issue, this court concluded that the trial court did
not err when it determined that Harris would be subject to cross-examination about
whether he and the Petitioner had recently committed two home invasions together.
Dowell, 2012 WL 3939978, at *9. In so holding, the panel reasoned as follows:

Although this evidence meets the criteria of character evidence, the trial
court correctly determined that the evidence is relevant to the litigated issue
of the [Petitioner’s] motive and intent to participate in the armed robbery.
The [Petitioner] sought to introduce evidence that he told Harris he no
longer wanted to participate in the robbery, and the fact that he and Harris
had, shortly before this offense, committed . . . home invasion[s] together
wherein they robbed and kidnapped the home owners became relevant to
show the [Petitioner’s] motive and intent.

Id.

The Petitioner also challenged the sufficiency of the evidence supporting his
felony murder conviction, submitting that “the State’s only witness to offer evidence that
the killing took place during the robbery attempt was Antionette Bell, whom he
impeached on three different occasions with her prior inconsistent statements.” Dowell,
2012 WL 3939978, at *10. Finding the evidence sufficient to support the Petitioner’s
conviction under a theory of criminal responsibility, this court provided the following
rationale:

In the case under submission, the evidence viewed in the light most
favorable to the State proved that the [Petitioner] and three other men,
Harris, Peoples, and Moreland, met and decided to commit a robbery. The
plan to commit the robbery included that the [Petitioner] enter the market,
see who was present, and inform the others. Peoples was driving the car
and Harris, who was armed with a gun, and Moreland were going to enter
the store and commit the robbery. The [Petitioner] entered the market, as
seen on surveillance video, [and] called Peoples, who told Moreland and
Harris that they were okay to proceed with the robbery. Before Moreland
could exit the car to enter the store, Harris exited the car and shot [the
victim], an employee of the market. Harris also shot in the direction of the
market, hitting Bell. The four men got back into the car and drove to
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 Harris’s house. This evidence is sufficient to support that the [Petitioner] is
criminally responsible for the attempted robbery that resulted in the killing,
and, thereby, supports his conviction for first degree felony murder.

As to the [Petitioner’s] specific argument that Bell lacked credibility
based upon his impeachment of her, this [c]ourt may not resolve questions
of witness credibility on appeal. That function is solely within the province
of the trier of fact. [State v. ]Bland, 958 S.W.2d [651,] 659 [(Tenn. 1997)].
The jury, by its verdict, accredited Bell’s testimony to the extent her
testimony was necessary to his conviction. We will not disturb the jury’s
findings.

Dowell, 2012 WL 3939978, at *12.

Our supreme court denied the Petitioner’s application for permission to appeal on
February 12, 2013.

C. Post-Conviction Proceedings. Following his unsuccessful direct appeal, the
Petitioner filed a timely pro se petition for post-conviction relief.3 Counsel was
appointed, and an amended petition was filed. In the amended petition, the Petitioner
claimed that he received the ineffective assistance of counsel in the following instances:
(1) trial counsel failed to sufficiently meet with him, to keep him informed, and to
“confer with [him] to discuss the details of [his] case”; (2) trial counsel failed “to
appropriately object to the admission of improper 404(b) evidence”—the prior robberies
committed by Harris and the Petitioner—by “not specifically limit[ing] the State’s
intended use of the propensity evidence and with no knowledge as to what limiting
instruction would have been given[,] there could have been no appropriate decision as to
whether to call Antonio Harris”; (3) trial counsel should have called Antonio Harris as a
witness regardless of the trial court’s 404(b) ruling because without Harris’s testimony
there was “complete and total lack of evidence” supporting the defense theory of duress;
(4) trial counsel failed to adequately challenge the State’s case (a) by objecting to the
State’s characterization of the victim as “killed,” (b) by failing to object the State’s
question, “Now after you heard what you later determined to be shots,” when no witness
had yet testified that they ever heard shots, and (c) by failing to ask the fingerprint
analyst, who “had a significant eye problem,” about her physical qualifications to identify
fingerprints; and (5) trial counsel failed “to appropriately voir dire the jurors” regarding

3
His petition was presented to prison officials for mailing on February 10, 2014. See Tenn. R. Crim. P.
49(d) (the “prison mailbox rule” provides that papers filed by incarcerated pro se litigants may be
considered filed within the prescribed time if delivered to the appropriate prison authority for mailing
within the time allowed for filing); see also Tenn. S. Ct. R. 28, § 2(G).
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the media coverage of the first trial.4 Thereafter, a hearing was held on the matter, at
which only the Petitioner and trial counsel testified.

The Petitioner stated that trial counsel met with him two or three times prior to his
first trial but only once between his first and second trial, estimating that trial counsel
spent a total of an “hour and a half at most” meeting with him in preparation for trial.
The Petitioner believed that he and trial counsel reviewed “in detail all of the events from
the first trial[,]” although the Petitioner could not recall for certain.

The Petitioner agreed that he discussed with trial counsel whether Antonio Harris
would testify on the Petitioner’s behalf at the second trial and that trial counsel explained
“whether the State could present other evidence against [the Petitioner’s] case if Mr.
Harris was called.” The Petitioner further clarified his understanding regarding Harris’s
testimony: “That if Mr. Harris had testified that they [were] going to bring up more
charges upon me that I was—that I was charged with at the time, that if he would testify,
they [were] going to use that against me.” However, the Petitioner claimed that he had
no knowledge of his defense strategy for the second trial, even after he sat through the
first trial in its entirety. “Based upon the facts that came out at trial[,]” the Petitioner
opined “that it would have been beneficial to call Mr. Harris despite what [prior bad act
evidence] could have come out[.]” According to the Petitioner, Harris’s testimony would
have supported “other evidence” of his innocence presented during trial.

The Petitioner acknowledged that he had “a copy of all the discovery” and that
trial counsel reviewed these discovery materials with him. Moreover, the Petitioner, for
“the most part[,]” was “able to communicate any concerns [he] had about [his] trial with
[trial counsel.]” Regardless, the Petitioner did not feel that trial counsel was prepared for
either his first or second trial. When asked how trial counsel could have been more
prepared, the Petitioner said there “could have been more communication” and that “a
better defense strategy would have helped.” Somewhat contrary to his prior testimony,
the Petitioner testified that he thought that the trial strategy was to mount a duress
defense, which Mr. Harris’s testimony was going to “corroborate[,]” but that none of that
happened, leading to no “defense at all” being presented to the jury.

On cross-examination, the Petitioner acknowledged that he was arraigned on
October 14, 2009, and had “multiple court appearances” thereafter in 2009, 2010, and

4
The Petitioner has abandoned his fourth and fifth grounds for relief on appeal, and we will treat those
claims as waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this court.”); see
also State v. Dellinger, 79 S.W.3d 458, 488 (Tenn. 2002) (refusing to address issues raised in the trial
court but abandoned on appeal). Therefore, we will limit our recount of the evidence presented at the
post-conviction hearing to that relevant to the Petitioner’s first three issues.
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2011. Although he did not talk with trial counsel at every in-court appearance, the
Petitioner did speak with trial counsel the “majority of the time” after those appearances.

The Petitioner recalled the jury-out hearing where Harris testified at his second
trial and the trial court’s ruling on the subject. The Petitioner admitted that he and trial
counsel discussed what to do following the trial court’s ruling, that trial counsel advised
the Petitioner that it “would [not] be the best thing to do to” call Harris to the stand, and
that the Petitioner agreed with this advice. However, the Petitioner explained his
rationale,

[T]he way he explained it to me was because I was still going to be able to
go along with my defense. . . . I wasn’t under the impression that I wasn’t
going to have a defense, that we were just going to let [the State] present
[their] case and me not have a defense against it. That wasn’t my
understanding of it.

On redirect examination, the Petitioner testified that his meetings with trial
counsel after court appearances lasted only about five to ten minutes and that they
typically discussed the events of the day in court, not trial strategy. The Petitioner also
believed that, prior to his second trial, he and trial counsel talked about whether to call
Harris as a witness. Again, somewhat in conflict with his earlier testimony, the Petitioner
said that he did not know until trial that the prior bad act evidence could be used against
him if Harris testified. The Petitioner further claimed that trial counsel did not inform
him that, by not calling Harris, the Petitioner’s defense would be “destroyed.”

Upon examination by the post-conviction court, the Petitioner stated that he had
heard all of the testimony presented against him at the first trial, including Bondwe’s
testimony placing the Petitioner inside the market and that Bondwe and the Petitioner
knew each other. Moreover, his co-defendant Brian Moreland did not testify at
Petitioner’s first trial, but did at the second, and Moreland provided details of the
Petitioner’s participation in the robbery. The Petitioner acquiesced that he “knew what
all the State’s proof was[,]” although, according to the Petitioner, the two trials “played
[out] different[ly]” with Moreland’s testimony at the second, and the State “played a
video in the first” that it did not introduce in the second. The Petitioner also confirmed
that trial counsel did not present a duress defense at his first trial. Finally, the Petitioner
averred that trial counsel did not adequately cross-examine the State’s witnesses at the
second trial, but he could not recall any specifics other than that trial counsel did not
“listen[] to [him.]”

Upon further redirect by post-conviction counsel, the Petitioner admitted that “the
State [had] a pretty strong case with [Petitioner’s] co-defendant testifying against [him]”
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at the second trial. The Petitioner clarified that, prior to the second trial, he discussed the
duress defense with trial counsel in “a single meeting” “for less than an hour[.]”
According to the Petitioner, he believed he “knew some of” what trial counsel intended to
introduce in his defense at the second trial; however, he now understood that the only
evidence to support a defense of duress was Harris’s testimony. The Petitioner claimed
that, “[h]ad [he] known that there was no other evidence that [trial counsel] could [have]
present[ed] to support that defense[, it] would . . . have affected [his] desire to call Mr.
Harris as a witness[.]”

Trial counsel testified regarding his recollection of the Petitioner’s case.
According to trial counsel, he met with the Petitioner between “thirty to fifty times” prior
to the Petitioner’s first trial. Trial counsel explained that most of those meetings occurred
in jail because the Petitioner was a “cooperating witness at that time,” so they met with
the district attorney’s office frequently.

According to trial counsel, the defense strategy at the Petitioner’s first trial was
“withdrawal.” In addition, he sat down with the Petitioner after the first trial and went
“over all the things [they] learned in the first trial.” Although they may not have known
exactly what evidence the State intended to present at the Petitioner’s second trial, they
“knew all the evidence that was out there,” including the possibility of a co-defendant
Moreland’s5 testifying against the Petitioner at his second trial. Trial counsel stated that
the “general theory” for the second trial was “a withdrawal duress defense.” Trial
counsel opined that “[i]f [the State] had called all the witnesses, if [the State] had used all
the confessions, if [the State] had presented all the evidence as they did in the first trial, it
would have been extremely difficult on either of those defenses, withdrawing or duress.”

Trial counsel then provided his rationale for not calling Harris to testify. Trial
counsel stated that he knew the State would attempt to “use the other robberies against”
the Petitioner if they called Harris to testify. He also recalled addressing this issue during
a jury-out hearing, where he argued that the propensity evidence was not admissible.
When asked why he did not raise the issue prior to trial, trial counsel explained,

From what I remember it was just right before trial that [Harris] agreed to
do that, that he agreed to actually testify. I don’t—I don’t think—this

5
Trial counsel talked in terms of the possibility of more than one co-defendant’s testifying at the
Petitioner’s second trial. However, Peoples proceeded to a jury trial of his own and his case was on
appeal at the time of the Petitioner’s trial; Harris was a proposed defense witness. The only co-defendant
that was cooperating with the State was Moreland. Moreland provided similar testimony against Peoples
at Peoples’s August 2010 trial. See Peoples, 2012 WL 2356584, at *3-4. Moreland also testified against
both Peoples and the Petitioner in the home invasion cases. See Dowell and Peoples, 2013 WL 1804191,
at *10-11.
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 wasn’t something that was available to us until the beginning. If it had
been, of course we would have done it sooner. I believe this is one where it
was just last minute. I don’t know what made him decide to—I think
maybe it was because he had lost an appeal. I can’t remember. But there
was a reason that he agreed to do this and his attorney was okay with it.

Trial counsel stated that, in light of the trial court’s ruling admitting the prior bad act
evidence and trial counsel’s observation of Harris’s demeanor on the witness stand, he
did not believe Harris’s testimony “would . . . go well at all with the jury.” According to
trial counsel, he discussed this decision with the Petitioner.

Trial counsel acknowledged that Harris’s testimony was a “crucial part” of the
defense theory, but he also believed the Petitioner was going to testify on his own behalf.
However, the Petitioner decided he did not want to testify following the jury-out hearing
concerning Harris’s testimony and Moreland’s trial testimony, according to trial counsel.
When asked if he had “an alternative theory of defense outside of withdrawal or
duress[,]” trial counsel replied, “Well, the State, of course, has to prove the case.” Trial
counsel clarified that duress or withdrawal was the “main sort of way to go” “[b]ecause
everything else [was] confirmed. You’ve got the video, you’ve got the confessions, I
actually think there were two confessions, only one of them was used though. And then
you’ve got his handwritten statements. You had all of these pieces of evidence.” He
continued that, “if all of that came in, the only gap you had in time to really create this
doubt was that phone call.” Trial counsel opined, “The second case I felt was a really
strong case” for the State.

Furthermore, at the Petitioner’s second trial, the State did not play the Petitioner’s
video-recorded interview, so they “could not get in the Chicken George defense.” Trial
counsel explained this defense as follows:

And basically the first trial Mr. Chicken George—everybody knows about
this. He would fry chicken at the store, and he knew—he knew [the
Petitioner]. And he would sell cigarettes to him underage. So I felt like
that was a good defense when that came out because that was rather
unexpected. . . . And the—what was said on that phone call was crucial,
like was it a call where he was calling the other people to come in and rob
the store or was it a call where he says, hey, I know Chicken George, I’ve
known him for five years and he’s working in the store and he’s the only
one here.

Additionally, trial counsel stated that, due to the strong case against the Petitioner,
he encouraged the Petitioner to take the State’s offer of twenty years as a Range I,
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standard offender. He believed that this offer was made soon after the first trial ended in
a hung jury, and he remembered discussing the State’s offer with the Petitioner. Trial
counsel acknowledged that this plea offer did not dispose of the prior robbery cases that
were still pending.

On cross-examination, trial counsel stated that he met with the Petitioner
approximately thirty times between the first and second trials. He explained,

I didn’t have as many meetings as I did the first time, but there were still
issues that came up, the letter, the other issues that were coming up that had
to do with the case. I met with him more frequently than I think would
have been necessary just because of these other extraneous matters that
were going on.

According to trial counsel, he “spent hours upon hours” on the Petitioner’s case. Trial
counsel asserted that he was prepared for trial, which included his filing pre-trial motions
and conferring with his investigator. Additionally, trial counsel confirmed that he talked
with the Petitioner about defense strategy during their meetings. Trial counsel averred
that he discussed the decision not to call Harris to the stand with the Petitioner during
trial and that the Petitioner agreed with trial counsel’s advice.

Trial counsel testified that the Petitioner wanted “the original deal” he was offered
by the State, but “it was hard for [the Petitioner] to realize that writing that letter and
sending it to the other attorney and to [the assistant district attorney] sort of destroyed
[the Petitioner’s] possibility of being the cooperating witness.” Regarding the plea offer,
trial counsel filed a “motion to try to enforce it” and get the Petitioner “the benefit of the
bargain[,]” to no avail.

On redirect examination, trial counsel was asked, “When you discussed with [the
Petitioner] calling Mr. Harris . . . did you explain that there wouldn’t be other evidence
that you would be presenting that would actually present duress or withdrawal to the
jury?” Trial counsel answered affirmatively but clarified that he advised the Petitioner to
testify “to get his theory across”; however, the Petitioner, as was his right, chose not to
take the stand in his own defense.

The Petitioner returned to the witness stand and testified that “[t]here was
absolutely no offer of twenty years between trials, before trial, or after trial.” The
Petitioner was asked if he was “ever aware of any offer formally made by the district
attorney’s office[.]” He responded, “Absolutely not. Because after the first deal—the
deal that didn’t go through, the D.A. didn’t offer me anything after that.” The Petitioner
also clarified that “[t]here was some proceeding with [him] and the district attorney that
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preceded all trials but didn’t go through”; this prior proceeding was not what he was
talking about, however. The Petitioner averred that, had an offer of twenty years been
communicated to him, he would have accepted it due to the strong evidence against him.

Upon examination by the post-conviction court, the Petitioner stated that “[t]here
was never a letter to the district attorney” but that the letter “in question was a letter that
[he] wrote under duress to a co-defendant.” He agreed that the letter “totally undercut
any testimony” he might have given as a cooperating witness. Furthermore, the
Petitioner disagreed with trial counsel that he advised him to testify. According to the
Petitioner, “[he] wasn’t worried about getting up here and testifying to the fact that [he]
was under duress” when he wrote the letter but that trial counsel recommended that he
not testify, so he did not.

In closing, post-conviction counsel argued that the Petitioner’s trial counsel should
have called Harris as witness despite the prior bad act evidence because it was the only
evidence establishing the defense theories of duress or withdrawal. Post-conviction
counsel also noted that trial counsel could have requested a limiting instruction on the use
of such evidence. Moreover, post-conviction counsel submitted that the Petitioner did
not understand that, by not calling Harris or testifying on his own behalf, no defense at all
was put forth to the jury.

The post-conviction court thereafter denied the Petitioner relief in an extensive
written order filed on June 2, 2016, concluding that the Petitioner had failed to establish
his claims of ineffective assistance of counsel. This timely appeal followed.

ANALYSIS

Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (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

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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. When a court
reviews a lawyer’s performance, it “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). Additionally, a
reviewing court “must be highly deferential and ‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’”
State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466 U.S. at
689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).

As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must
establish that his counsel’s deficient performance was of such a degree that it deprived
him of a fair trial and called into question the reliability of the outcome.” Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies
the second prong of Strickland.” Id.

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, 279 S.W.3d at 293-94. On appeal, we
are bound by the post-conviction 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 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 post-conviction court’s conclusions as to
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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.

First, we must address an issue not raised by the State in response to the
Petitioner’s allegations, which is the Petitioner’s severely wanting appellate brief.6 The
only issue specified for our review is “whether trial counsel failed to adequately
communicate with the Petitioner.” Then, after providing the legal tenants of ineffective
assistance of counsel claims, the Petitioner’s entire argument on appeal is as follows:

Trial counsel . . . was ineffective as trial counsel did not properly inform
[the] Petitioner of the details of his case and did not effectively
communicate with the client. Trial counsel failed to call a potential defense
witness to establish a duress defense and failed to inform [the Petitioner]
that without that witness there was effectively no defense. Further, trial
counsel failed to inform [the Petitioner] of an offer to settle the case. But
for trial counsel’s ineffective assistance, the jury would not have convicted
[the Petitioner].

In total, the argument section of the Petitioner’s brief is seven sentences long; his brief, in
total, is only three pages.

6
The State does argue that two of the Petitioner’s allegations on appeal—(1) that trial counsel failed to
inform the Petitioner that without Harris’s testimony, there would be no duress defense; and (2) that trial
counsel failed to inform the Petitioner of an alleged plea offer—were not raised his petition for post-
conviction relief, and therefore, this court should treat those allegations as waived. Evidence at a post-
conviction hearing is “limited to issues raised in the petition.” Tenn. Sup.Ct. R. 28, § 8(D)(4) (stating that
“[t]he hearing shall be limited to issues raised in the petition”); see Tenn. Code Ann. § 40-30-110(c)
(stating that “[p]roof upon the petitioner’s claim or claims for relief shall be limited to evidence of the
allegations of fact in the petition”); Tenn. Code Ann. § 40-30-104(d) (stating that “[t]he petitioner shall
include [in his petition] all claims known to the petitioner for granting post-conviction relief”). Regarding
the Petitioner’s claim that trial counsel failed to inform him that without Harris, there was effectively no
defense, it was arguably raised in the post-conviction petition, albeit in general terms. Moreover, the
Petitioner’s assertion about trial counsel’s failure to convey a plea offer arguably did not arise until trial
counsel’s testimony at the post-conviction hearing. In any event, the State did not object to the
Petitioner’s presenting evidence about this alleged failure to inform the Petitioner about his defense
absent Harris’s testimony and about a plea offer that was never conveyed to him, and testimony was
presented at the post-conviction hearing in these regards. Accordingly, we will consider the issues on
their merits because the evidence was heard, and ruled upon, by the post-conviction court. See Walsh v.
State, 166 S.W.3d 641, 645 (Tenn. 2005) (concluding that the State’s failure to assert the defense of
waiver at the post-conviction hearing precluded it from asserting the same on appeal); see also Tenn.
Code Ann. § 40-30-110(f) (“There is a rebuttable presumption that a ground for relief not raised before a
court of competent jurisdiction in which the ground could have been presented is waived.”).
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 The Petitioner does not provide this court with any idea in his appellate brief of
what details trial counsel failed to convey or how said lack of communication worked to
the Petitioner’s prejudice. Moreover, the Petitioner does not identify the “potential
defense witness” by name that trial counsel failed to call in support of the Petitioner’s
duress defense. Also, the Petitioner does not specify the particulars of the offer that trial
counsel failed to convey or argue that he would have accepted the offer instead of
proceeding to trial.

Rule 10 of the Rules of the Court of Criminal Appeals of Tennessee addresses
inadequate briefs. It states, in relevant part, “Issues which are not supported by
argument, citation to authorities, or appropriate references to the record shall be treated as
waived in this court.” Tenn. Ct. Crim. App. R. 10(b); See also Tenn. R. App. P. 27(a).
Accordingly, he arguably waived appellate review of these issues. See, e.g., Martin Dean
Gibbs v. State, No. M2016-00218-CCA-R3-PC, 2016 WL 5944992, at *3 (Tenn. Crim.
App. Oct. 13, 2016) (declining to review the petitioner’s ineffective assistance of counsel
claims due to an inadequate brief), perm. app. denied (Tenn. Feb. 16, 2107). Waiver
notwithstanding, we find no merit to the Petitioner’s claims, which we briefly choose to
address.

A. Failure to effectively communicate with the Petitioner or discuss defense
strategy and details of his case. At the evidentiary hearing, the Petitioner testified that
trial counsel met with him two or three times prior to the first trial and one time between
the first and second trial, spending a total of an hour and half at most meeting with him.
However, the Petitioner confirmed that trial counsel also met with him during numerous
courtroom appearances for at least five to ten minutes each time. The Petitioner further
agreed that trial counsel reviewed discovery with him, that they discussed defense
strategies, that he was able to express his concerns to trial counsel “for the most part,”
and that he had the benefit of hearing the State’s proof against him at the first trial, which
he went over with trial counsel prior to his second trial.

Trial counsel, on the other hand, testified that he met with the Petitioner at least
thirty to fifty times prior to the Petitioner’s first trial and approximately thirty times
between the first and second trials. Trial counsel asserted his belief that he was prepared
for trial. According to trial counsel, he and the Petitioner discussed trial strategy, and that
strategy changed somewhat between the first and second trial because one of the
Petitioner’s co-defendants, Brian Moreland, would possibly testify as a witness against
the Petitioner. Moreover, the State did not introduce the Petitioner’s video-recorded
statement in the second trial, which helped bolster the Petitioner’s withdrawal defense in
the first trial, according to trial counsel, by creating the “Chicken George” scenario.

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 The post-conviction court rejected the Petitioner’s allegation that trial counsel
failed to adequately meet with him, communicate with him, or keep him informed of the
details of his case. First, the post-conviction court reasoned that, considering the
Petitioner’s testimony alone, the Petitioner had failed to establish “that trial counsel was
ineffective in his communication with [the] Petitioner or that [the] Petitioner was
prejudiced by this alleged deficiency.” Next, the post-conviction court accredited the
testimony of trial counsel that he adequately communicated with the Petitioner, which is
a determination we do not disturb on appeal. See Fields, 40 S.W.3d at 456. We agree
that the Petitioner has failed to meet his factual burden of proof.

B. Failure to call Antonio Harris or inform the Petitioner that without Harris’s
testimony, there was effectively no duress defense. Importantly, we note that, from our
review of the trial record, trial counsel never intended on pursuing a defense of duress.
As this court noted in the direct appeal opinion, “[Trial] counsel told the trial court that
the defense wanted to introduce Harris’s testimony to show that the [Petitioner] no longer
wanted to participate in the robbery[,]” i.e., a withdrawal defense. See Dowell, 2012 WL
3939978, at *7. In fact, trial counsel made several statements specifically denying any
intent to argue duress to the jury using Harris’s testimony, going so far as to agree to
exclude portions of Harris’s testimony.

Regardless, trial counsel averred that Harris’s decision to testify for the Petitioner
was made “just right before” the second trial was to begin, so he did not have time to
address the prior bad act evidence in limine. The trial court’s decision to allow the
character evidence if Harris testified was affirmed by this court on direct appeal. See
Dowell, 2012 WL 3939978, at *7-9. We note that Harris’s testimony not only allowed
introduction of evidence of the prior robberies but also evidence that the Petitioner was
associated with Harris through membership in a criminal gang. This gang evidence
would have been highly prejudicial to the Petitioner’s case. Also, Moreland testified that
he was a willing participant in the robbery of Ace Market, indicating that he was not
forced by Harris to take part.

In addition, the Petitioner testified that he and trial counsel discussed the
possibility of a duress or withdrawal defense at the second trial and calling Harris to
support said defense. Trial counsel stated that, after the trial court’s ruling on the prior
bad act evidence and observing Harris’s demeanor, however, he did not think it was a
good plan to call Harris to the witness stand. Trial counsel said that he advised the
Petitioner of such, including explaining “that there wouldn’t be other evidence that [we]
would be presenting that would actually present duress or withdrawal to the jury[.]” Trial
counsel clarified that he advised the Petitioner to testify “to get his theory across”;
however, the Petitioner chose not to take the stand in his own defense. Moreover, the

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Petitioner conceded that he agreed with trial counsel’s decision not to present Harris as a
witness.

The post-conviction court previously accredited the testimony of trial counsel. It
also appears that trial counsel proceeded with a withdrawal defense, to the best of his
ability, despite the strong case against the Petitioner. We agree with the post-conviction
court that the Petitioner has failed to establish either deficient performance or prejudice in
this regard.7

C. Failure to convey a plea offer. The Petitioner asserted that his trial counsel
rendered ineffective assistance when he failed to communicate a favorable plea offer to
him. The post-conviction court, apparently reviewing the direct appeal technical record,
made the following findings in its order:

It appears that the State conveyed only one offer to [the] Petitioner, which
was prior to the first trial. This offer was revoked after [the] Petitioner
wrote his letter to the State prior to the trial of Rivera Peoples where [the]
Petitioner denied his previous statements. Since [the] Petitioner’s
cooperation no longer assisted the State, [the assistant district attorney]
moved forward with an agreement with Brian Moreland. After [the]
Petitioner’s first trial, on June 9, 2011, [t]rial [c]ounsel filed a motion to try
to enforce the State’s initial offer. This [c]ourt held a hearing on the issue
on June 21, 2011, and denied the motion in a written order filed June 27,
2011.

We note that neither the motion to enforce the plea agreement nor the hearing on
the motion is included in the appellate record, and it is the Petitioner’s duty to prepare an
adequate record for review. See Tenn. R. App. P. 24(b). The only testimony given at the
post-conviction hearing about the details of the offer was from trial counsel that the plea
offer was twenty years, as a Range I, standard offender, on the murder charge and that it
was made after the Petitioner’s first trial resulted in a hung jury. Regardless of the timing
of the offer, either before or after the Petitioner’s first trial, trial counsel testified that he
had discussions with the Petitioner about the State’s initial offer and that he encouraged
the Petitioner to accept it. The Petitioner’s own testimony confirmed that he was aware

7
The post-conviction court also cited Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990),
which holds that, when an ineffective assistance of counsel claim is predicated upon trial counsel’s failure
to present witnesses or introduce evidence, such witness’s testimony and evidence should be offered at
the evidentiary hearing in order for the trial court to determine whether the failure to call a witness or
introduce evidence prejudiced the petitioner. In this case, we know what Harris’s trial testimony would
have been, having the trial transcript of the jury-out hearing where Harris testified under oath.
Accordingly, we decline to apply the holding of Black to this case.
-21-
of the plea deal offered by the State: “Because after the first deal—the deal that didn’t go
through, the D.A. didn’t offer me anything after that.” This account was not inconsistent
with trial counsel’s version. There does not appear to have been any plea offer that trial
counsel failed to communicate to the Petitioner.

Trial counsel also testified that the Petitioner wanted “the original deal” he was
offered by the State, but “it was hard for [the Petitioner] to realize that writing that letter
and sending it to the other attorney and to [the assistant district attorney] sort of destroyed
[the Petitioner’s] possibility of being the cooperating witness.” After the Petitioner’s first
trial, trial counsel filed a motion to enforce the plea agreement, and a hearing was held,
albeit with a negative result for the Petitioner. Again, the post-conviction court credited
the testimony of trial counsel over that of the Petitioner, noting that trial counsel testified
that he had discussions with the Petitioner about the plea offer.8 The Petitioner, once
more, has failed to meet his factual burden of proof and is not entitled to relief.

CONCLUSION

Based upon the foregoing, the judgment of the post-conviction court is affirmed.

_________________________________
D. KELLY THOMAS, JR., JUDGE

8
The post-conviction court did not address this issue in a separate section of its order but did so in the
failure to communicate section.
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