Michael Lynn Poston v. State of Tennessee

09/22/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 10, 2017

MICHAEL LYNN POSTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for White County
No. CR-4761 John D. Wootten, Jr., Special Judge

No. M2016-01693-CCA-R3-PC

The Petitioner, Michael Lynn Poston, appeals from the White County Criminal Court’s
denial of his petition for post-conviction relief from his conviction for aggravated sexual
battery, for which he is serving an eleven-year sentence. On appeal, he contends that the
post-conviction court erred in denying his ineffective assistance of counsel claim, that the
court applied an erroneous legal standard to the ineffective assistance of counsel claim,
and that the trial judge engaged in improper ex parte communication with the jury during
its deliberations. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Brandon S. Griffin (at hearing) and Michael J. Rocco (on appeal), Sparta, Tennessee, for
the appellant, Michael Lynn Poston.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; Phillip A. Hatch,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner’s conviction relates to the unlawful touching of his step-
granddaughter. The victim’s father was an employee of the trial court clerk’s office.
Trial counsel moved for a change of venue based upon the father’s employment, and the
trial court denied the motion. The Petitioner was represented by a different attorney at
the trial than in the motion for a new trial. On appeal, this court affirmed the trial court’s
denial of the motion for change of venue. Also on appeal, the Petitioner raised an issue
regarding the trial judge’s failure to recuse himself based upon his professional
acquaintance with the victim’s father, but this court noted the absence from the record of
a motion and a hearing transcript relative to a motion for recusal of the trial judge and
presumed that the trial court’s ruling had been correct.1 State v. Michael Lynn Poston,
No. M2012-02321-CCA-R3-CD, 2014 WL 309648 (Tenn. Crim. App. Jan. 28, 2014),
perm. app. denied (Tenn. June 20, 2014). As relevant to this appeal, the post-conviction
petition and the amended petition allege that trial counsel provided ineffective assistance
by failing to file a motion for recusal and that the trial judge engaged in improper ex
parte communication with the jury during its deliberations.

At the post-conviction hearing, the trial judge was called as a witness and testified
that he recalled speaking with the jury once during their deliberations. He said that he
asked if they would like the court clerk to order food for them. He did not recall
speaking with them any other time during the “proceedings.” He said that before
entering the jury room, he asked the attorneys for the State and the defense whether they
objected to his asking the jury whether they wanted food and that the attorneys had not
objected. When asked if he took food to the jurors, he said he did not think they
requested food. When asked if an occasion arose in which the jury asked him a question
during the jury’s deliberations, he answered, “Never.”

The trial judge testified that trial counsel filed a motion for a change of venue
before the Petitioner’s trial and that the court had conducted a hearing on the motion.
The trial judge stated that he had reserved his ruling on the motion until completion of
voir dire. The trial judge agreed that, ultimately, he had allowed nine peremptory
challenges, rather than the “normal” eight, “because of the alternates in this case.” The
defense’s peremptory challenge sheet was received as an exhibit, and it reflected that the
defense exercised eight challenges. The trial judge did not recall trial counsel’s
requesting removal of an empaneled juror during the trial.

The trial judge testified that he knew the victim’s father worked in the clerk’s
office. When asked if the victim’s father handled “only child support and civil matters,”
the judge stated, “He is not a clerk that’s assigned to this court that I’ve ever seen.” The
trial judge stated that his interaction with the victim’s father was “[n]othing more” than
his interactions with a court officer or a person who appeared in his courtroom. The trial
judge identified trial counsel’s fee claim form, which reflected that the court approved

1
The Petitioner raised additional issues in the previous appeal, but they are not pertinent to his post-
conviction action. In any event, this court denied relief on all issues raised in the previous appeal.

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fees of over $3000, which the judge said was appropriate for a case of this nature. The
judge noted that, ultimately, counsel received $1552.64.

Brenda Phillips, the Petitioner’s sister, testified that she attempted to speak with
trial counsel before the Petitioner’s trial but that counsel never spoke with her. She said
“we” attempted to speak to counsel “several times” during court breaks. She said that
counsel asked “us” to call him later but that counsel did not take the calls. She said that
when the Petitioner was going to a meeting with counsel regarding trial preparation, “we
said tell him that we want to talk to him” but that counsel refused and did not want to talk
to “us.” She did not identify who, other than she, wanted to speak with counsel. Ms.
Phillips said that she was not an eyewitness to the events underlying the Petitioner’s
conviction but that the Petitioner’s wife had called her on the night of the relevant events.

Linda Powell, the Petitioner’s sister, testified that she attempted to schedule
meetings with trial counsel. She said he did not meet with her.

Myrna Poston, the Petitioner’s wife, testified that she attempted to speak with trial
counsel on several occasions. She said counsel had been present at his office about two
times but that on five or six occasions, his office had been locked or an employee had
advised her that he was not present. She said counsel did not follow up with her after
missing the meetings. She said that during the trial, counsel appeared unconcerned about
the missed meetings.

Ms. Poston testified that before the trial, Ms. Powell tried to persuade Ms. Poston
not to testify against the Petitioner. Ms. Poston agreed that Ms. Powell called the victim
a “lying b----.” When asked if she had been pressured by the Petitioner “or people in his
camp” to testify in a way other than how she ultimately testified, Ms. Poston responded,
“Well it was [an] upsetting time for everybody.”

The Petitioner testified that he tried to meet with trial counsel several times before
the trial on January 4 of an unspecified year. The Petitioner said counsel would state that
he was busy but would contact the Petitioner. The Petitioner stated that when he called
counsel, counsel would state that he was going to be in Sparta on a specified date and
would call the Petitioner but that counsel never called. The Petitioner stated that when he
called counsel after not hearing from him on the specified dates, counsel would say that
something had “come up” and that counsel was on his way back to Cookeville. The
Petitioner stated that counsel eventually called him and told him to be ready to spend all
day at counsel’s office on January 1 through January 3 to prepare for the January 4 trial.
The Petitioner stated that he arrived as instructed at counsel’s office at 8:00 a.m. on
January 1, that counsel arrived around 9:00 a.m., that counsel left at 9:20 a.m. after

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stating he had something to do, and that counsel told the Petitioner to return the next
morning. The Petitioner stated that he arrived at counsel’s office at 8:00 a.m. on January
2, that counsel arrived around 8:30 a.m., that they met for about thirty minutes, and that
counsel made a telephone call and stated he had to leave. The Petitioner stated that
counsel was about one and one-half hours late for their meeting on January 3, that they
talked for fifteen to twenty minutes, that counsel stated, “I think we’ve got it downpat
[sic],” and that their meeting concluded. The Petitioner estimated that he met with
counsel for a total of forty-five minutes to one hour on January 1 through January 3. The
Petitioner stated that if counsel’s fee claim reflected that they met in excess of eight or
nine hours, he disputed the information on the fee claim. He acknowledged his wife’s
testimony that she met with counsel but had no personal knowledge of their meeting. He
acknowledged that counsel advised him that if he were convicted at the trial, he would be
subject to the sex offender registry, community supervision for life, 100% service of his
sentence, and Range II sentencing.

The Petitioner testified that he had asked trial counsel to contact John Holtzclaw,
Julie Holtzclaw, Mike Sparks, and Rhonda Grilty as potential witnesses. The Petitioner
said that counsel told him to provide counsel with the witnesses’ names and addresses in
order for counsel to subpoena them. The Petitioner said that although he provided the
information and told counsel he wanted the witnesses to testify, counsel stated “[a]t court
day” that they did not need the witnesses and that the Petitioner should trust counsel. The
Petitioner was unaware of counsel’s ever speaking with the potential witnesses. The
Petitioner said he and counsel never discussed the facts to which these witnesses could
testify. The Petitioner did not know if counsel reviewed pretrial statements from the
victim and another witness who had been in the home on the night of the offense. The
Petitioner said he and counsel discussed the defense, which was that the Petitioner did not
commit the offense. The Petitioner agreed that the defense plan was for counsel to cross-
examine the victim, the Petitioner’s wife, and another witness who had been in the home
and for the Petitioner to testify that he did not commit the offense. The Petitioner agreed
that at the trial, counsel cross-examined the victim and the Petitioner’s wife and that the
Petitioner testified on his own behalf. He agreed that he and the victim had been alone in
a bedroom on the night of the offense.

The Petitioner testified that he spoke with trial counsel about filing a motion for
recusal of the trial judge. When asked if counsel pursued the motion, the Petitioner said,
“Not the way I wanted to[.]” The Petitioner agreed that counsel filed a motion for change
of venue and said he had “no idea” whether counsel “follow[ed] up” on the motion for
change of venue during the voir dire process. The Petitioner stated that although counsel
exercised eight peremptory challenges, the Petitioner had wanted counsel to strike an
additional juror whom counsel did not strike. The Petitioner disagreed that counsel

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attempted to have this juror removed the day after jury selection. He did not recall
counsel’s having made a motion to have a juror removed because the juror knew the
victim’s father. The Petitioner said counsel did not strike the juror whom the Petitioner
wanted removed.

The Petitioner testified that trial counsel did not make a timely objection when the
victim testified at the trial without being sworn as a witness. The Petitioner agreed that
the victim was sworn at the end of her testimony and that she stated she had testified
truthfully. The Petitioner stated that every time he “had [an] answer or a question,”
counsel told him to trust counsel and said, “I’ve got this.” The Petitioner said counsel
never communicated any plea offers to him. The Petitioner said he was aware of “certain
medical records” and wanted counsel to investigate the records but that the Petitioner was
unaware of counsel’s having done so. The Petitioner said the medical records were
relevant, despite the lack of any allegation of penetration, because the victim had stated
his fingernails had hurt her. He said the records contained statements that the victim had
“not been touched.” The Petitioner stated that he wanted counsel to investigate how the
Petitioner and the Petitioner’s wife handled their disputes but that counsel never
addressed the issue with the Petitioner’s wife. The Petitioner said that his behavior of
having walked away from the house after arguing with his wife and after she left in his
truck with the victim and another child was consistent with his habit of walking away
from their arguments.

Trial counsel testified that his fee claim for the Petitioner’s conviction proceedings
reflected 7.9 in-court hours and 64.4 out-of-court hours. Counsel said that he was only
paid for about one-half of the time he spent working on the Petitioner’s case and that “at
some point once you’ve gone over a certain number of hours, you really almost don’t
even keep records anymore.” He said he might have worked more hours on the case than
his fee claim reflected. He said the fee claim petition had been filed for him by a
“service” based upon information he provided. Counsel said the fee claim reflected the
following meetings with the Petitioner: 1.5 hours on April 26, 2011; an unspecified time
on May 1, 2011; two hours on May 8, 2011; 1.5 hours on August 8, 2011. Counsel said
the fee claim reflected six hours of trial preparation on January 2 of an unidentified year
and that some of this time involved a meeting with the Petitioner and that some of it
involved reviewing documents and other tasks.

Trial counsel had no notes or recollection of the Petitioner’s having mentioned
John Holtzclaw, Julie Holtzclaw, Mike Sparks, or Rhonda Grilty as potential witnesses.
He said that none of these individuals were present at the house on the night of the crime
and that the Petitioner never mentioned any fact witnesses who could testify that the
offense did not occur. Counsel said, though, that he and the Petitioner discussed potential

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character witnesses and that these individuals may have been the Petitioner’s proposed
character witnesses. Counsel said he advised the Petitioner that character witnesses
would not be helpful and that the case turned on the victim’s word against the Petitioner’s
word. Counsel said that he advised the Petitioner he was not going to call character
witnesses and that the Petitioner said nothing further about the issue. Counsel thought
that the Petitioner gave him a list of witnesses and that counsel had made telephone calls
to locate potential witnesses.

Trial counsel testified that he talked to the Petitioner’s wife and that he thought
she was in a difficult position. He thought her testimony would be somewhat helpful and
noted that she seemed anxious about testifying, but he did not want to call her as a
witness and “ask a question you don’t know the answer to . . . and then get burned.”
Counsel also noted that the Petitioner’s wife had been in the house and that “the door was
open and that was established at trial.” Counsel said the Petitioner’s wife stood by her
statements that were in the discovery materials and that the question was whether she
would be supportive of the Petitioner in her testimony. Counsel said that he knew the
State would call the Petitioner’s wife as a witness.

Trial counsel testified that he was aware of the Petitioner’s prior felony
convictions that could be used to impeach the Petitioner’s credibility. When counsel was
asked why he did not elect to present character witnesses to repair the Petitioner’s
credibility, counsel said that a few days before the trial, it was apparent the Petitioner’s
wife “wasn’t going to buttress his character.” Counsel said that if the person with whom
the Petitioner lived would not vouch for his character, counsel did not want to raise the
issue.

Trial counsel testified that one of the Petitioner’s sisters tried to meet with counsel.
He thought that he talked to her by telephone and that the information she had “was
nothing.” He noted that the Petitioner’s sisters were not in the house on the night of the
offense. He said he did not investigate the Petitioner’s sisters as potential character
witnesses.

Trial counsel testified that he discussed plea offers with the Petitioner, although he
could not remember the details. Counsel recalled an offer that involved a lengthy
sentence of more than ten years and said he had thought he would never be able to “sell”
the offer to the Petitioner. Counsel said he advised the Petitioner of the possibility of
being subject to community supervision for life, having to be listed on the sex offender
registry, 100% service of a sentence, and the possible length of a sentence. Counsel said
the Petitioner did not want to plead guilty due to the length of the sentence prescribed by

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the offer and because it would ruin his marriage and his family life. Counsel said the
Petitioner maintained his innocence.

Trial counsel testified that he and the Petitioner went to an office supply store to
make copies and that counsel provided the Petitioner with copies of all of the discovery
materials. Counsel said he reviewed the discovery materials with the Petitioner.

Trial counsel testified that he did not file a motion for the trial judge to recuse
himself because counsel did not think the motion would be successful. He said that the
Petitioner was concerned about receiving fair treatment from the clerk’s office but never
spoke with counsel directly about a motion for recusal. Counsel said that instead of a
motion for recusal, he filed a motion for a change of venue. Counsel agreed that the trial
court reserved ruling on the motion until the completion of voir dire. He agreed that the
defense had one unexercised peremptory challenge remaining at the end of jury selection.
Counsel said he consulted with the Petitioner about prospective jurors and noted that he
relied on the Petitioner’s knowledge of jurors because counsel did not live in Sparta. He
had no recollection of having asked the court to excuse a juror after the jury had been
selected but agreed that the trial transcript spoke for itself in this regard. He thought the
court excused this juror for cause. Counsel said he did not raise the change of venue
issue a second time because nothing that occurred in voir dire added to the argument for a
change of venue. He said he understood that failing to raise the issue would waive
appellate review.

Trial counsel testified that he prepared for the victim’s testimony and cross-
examination by reviewing the victim’s pretrial statement in the discovery materials. He
said he spoke to the victim’s father and was aware of her family’s feelings about the
matter. He said he did not speak to the victim and did not think her parents would have
allowed it. He acknowledged he had not raised the issue of the victim’s not having been
sworn and said he had not noticed but someone else must have noticed because she was
sworn at the end of her testimony. He agreed that the victim stated her previously
unsworn testimony had been truthful. Counsel said the trial judge summarized the
victim’s previous testimony, and in counsel’s opinion, it would not have been helpful to
the defense for the victim to have testified and to have been cross-examined again.

Trial counsel testified that calling medical providers as witnesses would not have
been helpful to the defense because they would have corroborated the victim’s statements
to them regarding the Defendant’s touching her inappropriately. Counsel said the
medical reports were not conclusive as regards to corroborating the victim’s account of a
touching. Counsel said the Petitioner knew how counsel was approaching the case.

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 Trial counsel testified that he had been involved in many trials in which the trial
judge “might stick his head” in the jury room and inquire whether the jury wanted food.
Counsel did not recall the judge going into the jury room other than to inquire about food.
He did not recall the judge’s asking the attorneys if they objected to the judge’s asking
the jury if they wanted food. Counsel said, however, that he had no issue with the judge
speaking with the jury about food.

Trial counsel testified that he had been disbarred. He said that his wife passed
away after battling breast cancer for six and one-half years and that about six months
after his wife’s death, he wrote letters to his clients advising them that he was quitting the
practice of law. He said he “never responded to the bar.” He said that after he wrote the
letters to his clients, he did not communicate with them because their questions were too
stressful. He said this occurred two years after his representation of the Petitioner had
concluded. He said in 2011 and early 2012, his wife’s illness did not create a problem
with his ability to practice law.

After receiving the proof, the post-conviction court denied relief. This appeal
followed.

Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

I & II

Ineffective Assistance of Counsel

To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland

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standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure 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). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

The Petitioner raised numerous allegations of ineffective assistance of counsel in
the post-conviction court, but on appeal, he has limited his challenge to the post-
conviction court’s ruling that he failed to prove ineffective assistance in trial counsel’s
failure to file a motion for recusal based upon the trial judge’s professional acquaintance
with the victim’s father. The Petitioner argues that trial counsel should have filed a
motion for recusal and, barring that, should have obtained the Petitioner’s informed
written consent not to file such a motion. Relative to this issue, the post-conviction court
made the following findings:

File a motion for recusal where the victim’s father was a Circuit
Clerk, more accurately a Deputy Circuit Court Clerk, with whom the trial
judge was acquainted. Now I want to talk about that in conjunction with
venue . . . . This court could find that those issues really have been
previously determined. They were addressed in the Court of Criminal
Appeals opinion. Now it’s true that [trial counsel] did not renew the
motion for venue, that’s true. But the trial judge, as the state says, tabled
that and probably took it under advisement to wait and see what happened.

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 You know, that’s what trial judges do sometimes. They want to see if we
can get a jury here. Well I’ve reviewed the transcription of the voir dire.
There is nothing that I can see in there that would trigger any trial judge to
grant that motion on his own or even had it been renewed to grant it. You
had, you only used eight challenges and then there’s a mysterious ninth one
that appears in the transcript. But really the, the Court of Criminal Appeals
addressed this and even though you might want it at the time, it still rests
within the sound discretion of the trial judge. Looking at this record, I
don’t see any reason why it should have been granted had it been renewed.
So I find first of all that impliedly that failure to grant or renew the motion
for a change in venue has been previously determined. And even if it
hasn’t, that that was not deficient on the part of [trial counsel]. That you
have failed by, to meet the standard by clear and convincing evidence.

Now with regard to recusal, the Court of Criminal Appeals
addressed this and the way the trial judge handled that. The clerk in this, in
this county was in somewhat of an awkward position because the father of
the victim worked for her. But the Court of Criminal Appeals talks about
that and talks about the, shall I say the safeguards used to assure that there
would be a fair trial. Indeed, the Court of Criminal Appeals and indeed [the
trial judge] even reiterated today that the Deputy Clerk has nothing to do
with criminal cases anyway. The clerk here was going to take it on her
own, the elected clerk to make sure that she had the file, she controlled the
file, all those things. And so I find that with regard to [the trial judge], he
told it like it was. He’s going to be friendly with everybody that he
encounters. That’s the nature of public life and being an elected official.
But there’s been no showing that there was anything untoward involving
the father of the victim, the judge, or the clerk, anything like that. Indeed I
find in this case that there’s been no showing by clear and convincing
evidence that counsel’s performance was deficient. And even assuming
that it was, there was no prejudice established in this instance.

At the post-conviction hearing, the Petitioner said he asked trial counsel to file a
motion for recusal and that although counsel filed an unspecified motion, counsel did not
pursue the issue in the way the Petitioner preferred. Counsel testified that the Petitioner
was concerned about receiving fair treatment from the clerk’s office but that the
Petitioner never asked counsel directly to move to have the judge recuse himself from the
Petitioner’s case. Counsel said that he did not file a motion for recusal because he did not
think it would be successful and that instead, he filed a motion for a change of venue.

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 We note that in the Petitioner’s previous appeal, this court was unable to
determine with certainty whether a motion for a change of venue was made in the trial
proceedings. This court noted that the record did not contain a written motion for
recusal, nor did it reflect that such a motion was made orally. This court noted, however,
that in denying the motion for a new trial, the trial court stated that it had “considered the
[the victim’s relation to the assistant clerk] on the motion of the defendant’s attorney at
the time,” and that “the court did not find that it had reason to recuse itself and still does
not.” Michael Lynn Poston, 2014 WL 309648, at *7. This court stated, “If there was, in
fact, a motion for recusal made by the defendant, the lack of a transcript of a hearing on
such motion in the record makes it impossible to conduct a meaningful review of this
issue.” Id. Ultimately, this court presumed that the trial court’s ruling had been correct.
See id.

In the post-conviction proceedings, the Petitioner alleged that no motion for a
change of venue had been filed in the trial proceedings, and his allegation is supported by
trial counsel’s testimony that in order to address the Petitioner’s concern about being
treated fairly by the clerk’s office, counsel elected to file a motion for change of venue
instead of a motion for recusal. The evidence shows that counsel’s decision was a
strategic one because in his opinion, a motion for recusal would be unsuccessful. The
post-conviction evidence also shows that the victim’s father and the trial judge shared
only a passing professional acquaintance and that the victim’s father’s job duties did not
involve matters in the judge’s court. The record reflects that counsel considered the
Petitioner’s concern about being treated fairly by the clerk’s office and that counsel made
an informed, strategic decision to address the Petitioner’s concern in the way he thought
held the greater possibility for obtaining relief. That his strategy was unsuccessful is not
determinative of the question of ineffective assistance of counsel if the decision was an
informed choice made after adequate preparation. See Cooper, 847 S.W.2d at 528. The
post-conviction court found that the Petitioner failed to present clear and convincing
evidence that counsel provided ineffective assistance with regard to a motion for recusal
and a motion for a change of venue. Because the record supports the post-conviction
court’s determination that counsel did not provide ineffective assistance with regard to a
motion for recusal, the Petitioner is not entitled to relief on this basis.

With regard to the Petitioner’s argument that trial counsel was ineffective because
he failed to obtain a written waiver from the Petitioner regarding counsel’s not filing a
motion for recusal of the trial judge, we note that the Petitioner did not pursue this theory
in the post-conviction court and offered no evidence to support it. Other than a brief,
general complaint, he has offered no argument in his appellate brief regarding his theory
that this fell below the standard required of a criminal defense attorney. He is not entitled
to relief on this basis.

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 In considering this issue, we have not overlooked the Petitioner’s argument that
the post-conviction court applied an incorrect legal standard for evaluating his ineffective
assistance of counsel claim. He notes that in articulating the burden of proof, the post-
conviction court stated that the Petitioner must establish clear and convincing evidence of
both deficient performance and “that the deficient performance actually prejudiced the
defense, or in other words that the results would have been different had other things
taken place.” The Petitioner complains that the proper standard for the prejudice prong
of an ineffective assistance of counsel claim only required him to show a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. The Petitioner is correct that the post-conviction court did not
specifically use the “reasonable probability” terminology when reciting the burden of
proof. We note, however, that the court referred to Strickland v. Washington as providing
the framework for its analysis of the Petitioner’s claim. Further, the court found that the
Petitioner failed to carry his burden of proof relative to the deficient performance prong.
Even if the court’s application of the standard of proof relative to prejudice could be
faulted, the Petitioner’s failure to establish the deficient performance prong is fatal to his
claim. See Henley, 960 S.W.2d at 580; Goad, 938 S.W.2d at 370. As such, he is not
entitled to relief on this basis.

III

Ex Parte Communication

The Petitioner contends that the trial court engaged in improper ex parte
communication with the jury by asking them during their deliberations if they wanted the
clerk to order food for them. The Petitioner acknowledges that he did not raise the issue
before the jury returned its verdict and that, therefore, the issue is waived under current
law. He argues, however, that ex parte communication between judge and jury “violates
either his right to confront witnesses face to face or violates his right to due process and a
fair trial by an impartial tribunal.”

We conclude that this issue is waived because the Petitioner failed to raise his
constitutional challenge in the trial court and in the previous appeal. Tennessee Code
Annotated section 40-30-106(g) provides:

(g) A ground for relief is waived if the petitioner personally or through an
attorney failed to present it for determination in any proceeding before a
court of competent jurisdiction in which the ground could have been
presented unless:

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 (1) The claim for relief is based upon a constitutional right not
recognized as existing at the time of trial if either the federal or state
constitution requires retroactive application of that right; or

(2) The failure to present the ground was the result of state action in
violation of the federal or state constitution.

The Petitioner’s constitutional challenge does not fall within either of the exceptions to
the general rule of waiver. He is not entitled to consideration of the merits of this issue.

In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.

_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE

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