06/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 18, 2018

       RODERICK DEWAYNE CROSBY v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2011-B-1911 Mark J. Fishburn, Judge
                     ___________________________________

                           No. M2017-01482-CCA-R3-PC
                       ___________________________________

A Davidson County jury convicted the Petitioner, Roderick Dewayne Crosby, of four
counts of aggravated kidnapping, three counts of aggravated robbery, one count of
burglary, one count of aggravated assault, and one count of possession of a firearm
during the commission of a dangerous felony, and the Petitioner received an effective
sentence of thirty-four years. On appeal, this court affirmed the judgments. See State v.
Roderick Dewayne Crosby, No. M2014-00914-CCA-R3-CD, 2015 WL 4197613, at *1
(Tenn. Crim. App., at Nashville, July 13, 2015), perm. app. denied (Tenn. Oct. 15, 2015).
The Petitioner filed a post-conviction petition, and the post-conviction court denied relief
following a hearing. On appeal, the Petitioner maintains that he received the ineffective
assistance of counsel. After review, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Jesse Lords, Nashville, Tennessee, for the appellant, Roderick Dewayne Crosby.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

      A Davidson County jury convicted the Petitioner of four counts of aggravated
kidnapping, three counts of aggravated robbery, one count of burglary, one count of
aggravated assault, and one count of possession of a firearm during the commission of a
dangerous felony. On direct appeal, this court summarized the evidence presented at trial
as follows:

             This case arose after the [Petitioner] and two others invaded the
      victims’ home. T.B. testified that at the time of the incident, she was living
      with her grandmother, B.M., her mother, P.M., and her younger brother,
      J.C. B.M. slept on a couch in the living room, J.C. had his own bedroom,
      and T.B. and P.M. shared a bedroom (“T.B.’s room”). On the evening of
      the incident, after the rest of the family had gone to sleep, T.B. was awake
      in her bedroom when she heard several loud kicking noises at the door.
      She started screaming at her mother that someone was kicking the door,
      and the two rushed into the living room.

              T.B. and P.M. saw three men in the living room. All three men were
      wearing dark “hoodies,” had bandanas covering their faces, and were
      holding guns, which the victims testified were visible for the entirety of the
      incident. T.B. testified that the victims’ cell phones were all on a dresser
      and that the men took the cell phones as soon as they entered the residence.
      The first man was later identified as Kirk Pointer, the second man was
      identified as the [Petitioner], and the third man was identified as “Pop.”
      T.B. described the [Petitioner] as an African-American male who was “kind
      of short” with “shoulder length” dreadlocks. She believed that the
      [Petitioner]’s hood was down because she was able to see his dreadlocks.
      She testified that the [Petitioner] had his sleeves rolled up, and she saw that
      he had a sizeable tattoo of the letter “C” on his left arm. He wore a
      bandana tied around his mouth and nose, but the bandana slid off of his
      nose several times, allowing T.B. to partially see his nose. T.B. recognized
      him as a person whom she had previously seen at a store in North
      Nashville, but she did not know him by name. P.M. described the
      [Petitioner] as an African-American male who had dreadlocks that fell just
      beyond his shoulders. She also testified that his sleeves were rolled up and
      that he had a “very visible” tattoo of the letter “C” on his left arm. P.M.
      saw that the [Petitioner] had other tattoos, but she did not attempt to
      identify them because the “C” was the most distinguishable tattoo. T.B.
      and P.M. both identified a photograph of a tattoo of a “C” as the tattoo that
      they saw on the [Petitioner].

              T.B. believed that the men were intending to rob her sister’s
      boyfriend, whom they mistakenly believed lived at the residence. She
      testified that the [Petitioner], after seeing a picture of her sister’s boyfriend,
      informed Mr. Pointer and Pop that they were “in the right house,” although
                                            -2-
J.C. testified that it may have been Pop who identified the boyfriend. The
men asked if anyone else was in the house, and P.M. informed them that
J.C. was there.

        J.C. testified that he was in his bedroom asleep when he heard
shouting in the living room. He went to investigate the commotion and saw
T.B., P.M., and B.M. in the living room with three armed men. J.C.
attempted to return to his bedroom, and the [Petitioner] followed him into
the room. J.C. described the [Petitioner] as an African-American male who
was 5’8” or 5’9” tall with dreadlocks “past his shoulders.” At one point,
the [Petitioner] grabbed J.C.’s arm and ordered him to go into T.B.’s
bedroom. J.C. was able to look at the [Petitioner’s] arm, and he saw a
large, green letter “C” tattooed on the [Petitioner’s] left arm. He saw that
the [Petitioner] had other tattoos, but he could not identify them. He
testified that the [Petitioner] wore a blue bandana tied around his face that
fell down several times, allowing J.C. to see the [Petitioner’s] face from the
top of his lip to his eyes at times during the incident. J.C. testified that he
was attempting to pay close attention to the [Petitioner’s] face “[t]o see if I
could see who he was or could I remember who he was.”

        The men took all of the victims into T.B.’s bedroom and ordered
T.B., P.M., and J.C. to lie on their stomachs on the bed and to place their
hands behind their backs. Mr. Pointer then put duct tape on their hands,
ankles, and mouths. B.M. was in the bedroom, but the men did not duct
tape her. As Mr. Pointer was binding the victims, the [Petitioner] and Pop
started to ask the victims where the money was, with the [Petitioner]
stating, “[W]here is the money; ya’ll know where the money is.” T.B.
testified that while the [Petitioner] was demanding the money, Pop “was
just standing around just watching everything” and that he appeared to be
using a phone or a walkie-talkie to narrate the unfolding events to someone
outside of the residence. All of the victims testified that the [Petitioner]
was in close proximity to them while they were in the bedroom and that he
was holding his gun.

       Shortly after duct taping the victims, the men began ransacking the
house. T.B. testified that the men were “going through everything, pulling
everything out.” P.M. testified that the [Petitioner] was “[u]sing a lot of
profanity, asking us where the money [was] and mostly he was just tearing
up the house.” The [Petitioner] found P.M.’s purse, and she saw him empty
the contents onto the floor. P.M. testified that $400 and a cell phone were

                                     -3-
taken from her. Each of the victims testified the [Petitioner] was primarily
responsible for the search of the house.

        While the [Petitioner] was scouring the residence, Mr. Pointer took
P.M. into J.C.’s bedroom. He removed the tape from her mouth and started
to kiss her. He pulled off her pajamas and kissed her breasts. He then took
down his pants and demanded that P.M. perform oral sex on him. When
she was finished, Mr. Pointer told her that “he was going to do [her]
daughter the same way” if P.M. did not tell him where the money was. Mr.
Pointer returned P.M. to T.B.’s room and took T.B. to J.C.’s room. When
P.M. returned to the room, Pop was the only man in the room.

       In J.C.’s bedroom, Mr. Pointer began to sexually assault T.B.
During the assault, the [Petitioner] opened the bedroom door, and Mr.
Pointer stopped his assault and pretended as though he was simply talking
to T.B. The [Petitioner] immediately closed the bedroom door, and Mr.
Pointer resumed his sexual assault. The [Petitioner] later opened the
bedroom door a second time and caught Mr. Pointer in the midst of his
assault. The [Petitioner] entered the bedroom and said to Mr. Pointer,
“[W]hat are you doing, come on out of there” and exited the bedroom. Mr.
Pointer then returned with T.B. to her bedroom.

        Once the three men and the victims were back in T.B.’s room, T.B.
heard the men telling a fourth party that they could not find anything and
asking if they should leave the residence. J.C. heard the men say “‘that the
house was clean,’” and he observed them ripping the telephones out of the
wall. Pop was speaking with an individual on a walkie-talkie, and this
person told the men to exit the residence. J.C. testified that before the men
left, they instructed the victims not to leave until the men were gone. The
men made off with J.C.’s cell phone and several dollars off of his dresser,
P.M.’s cell phone and $400 from her purse, and a cell phone belonging to
T.B.

       After the men left, the victims began to assist each other in removing
the duct tape. T.B., whose hands had been freed when Mr. Pointer took her
into J.C.’s bedroom, called the police. Several officers, including Detective
Edmond Strickling, arrived at the scene. Detective Strickling testified that
in 2009, he was working for the Metro Nashville Police Department in the
sex crimes unit. He arrived at B.M.’s residence and interviewed P.M.,
T.B., and J.C. He interviewed the three separately, and each provided the
same general description of the [Petitioner] as a [sic] African-American
                                    -4-
male who wore a black “hoodie”, had dreadlocks “[p]ossibly down to his
shoulders,” and a tattoo of the letter “C” on his forearm. After the
interview, P.M. and T.B. went to the hospital for a medical examination.
Detective Strickling took DNA swabs from P.M. to the Tennessee Bureau
of Investigation (“TBI”) to put in the CODIS system for testing. However,
he was not able to develop any other leads in the case, and the case “kind of
went cold.”

        Nearly a year and a half after the robbery, on February 14, 2011,
T.B. saw the [Petitioner] when both were being booked into jail. The
[Petitioner] had already been booked, and T.B. was beginning the booking
process. When T.B. saw the [Petitioner], she immediately recognized him
as one of the men who broke into her house. His tattoos were not visible,
but she was able to recognize him based solely upon his facial features.
When the [Petitioner] saw her, he “did a double take,” and he approached
T.B. to speak with her. He asked T.B. to make a phone call for him, and
T.B. told him that she could not use the phone. The [Petitioner] continued
to try to speak to her, and eventually a guard locked the [Petitioner] in a
separate cell.

       T.B. estimated that she was with the [Petitioner] for an hour in jail.
When she left, the [Petitioner] handed her a slip of paper with “a lot” of
names and telephone numbers. He asked her to call the numbers to help
him get out of jail “before his probation violation c[a]me up in the system.”
T.B. told her mother that she saw the [Petitioner] in jail, but she did not
contact Detective Strickling because she did not know how to reach him.

       In April of 2011, Detective Strickling learned that there had been a
CODIS match from the DNA swab of P.M. that identified Mr. Pointer.
Detective Strickling subsequently contacted P.M. and T.B. and met with
them to show them a photograph lineup that included Mr. Pointer. Each
victim viewed the lineup separately. Before showing them the lineup,
Detective Strickling explained “that the suspect may or may not be in this
form, in these photos, don’t assume that the guilty party is in the photos, the
photo lineup is used in a way to also free up and prove someone’s
innocence as long as - as well as guilt.” T.B. corroborated these cautionary
instructions, testifying that Detective Strickland told her prior to showing
her the lineup that “it’s a page of people, they may or may not have
committed this crime, it may just be that they’re eliminating someone off of
here.” Both T.B. and P.M. identified Mr. Pointer from the lineup.

                                     -5-
        After viewing the lineup, T.B. informed Detective Strickling that she
may have seen the suspect with a “C” tattooed on his arm while she was in
jail. T.B. had attempted to locate a “Face It” magazine, which contained
the mug shots of people who had been arrested, to find the [Petitioner’s]
mug shot, but she was unable to do so. She was unable to provide
Detective Strickling with the piece of paper containing the names and
numbers that the [Petitioner] had given her because she had lost it.
However, the [Petitioner] had given T.B. his phone number, and Detective
Strickling testified that T.B. was able to provide him with that phone
number. Detective Strickling retrieved the records for all of the African-
American males arrested on the same day as T.B. By cross-referencing the
phone number provided by T.B. with the arrest records of February 14,
2011, Detective Strickling was able to discover that the [Petitioner] gave
that phone number when he was booked. Detective Strickling looked
through the historical photos of the [Petitioner] and saw that he had a tattoo
of the letter “C” on his forearm. He agreed that the photograph of the
[Petitioner] matched the description given to him by the victims.

        After finding the photograph of the [Petitioner], Detective Strickling
interviewed Mr. Pointer about the crime. He showed Mr. Pointer a lineup
that contained the [Petitioner’s] photograph, and Mr. Pointer picked the
[Petitioner’s] photograph out of the lineup. Mr. Pointer voluntarily
provided information about the [Petitioner], using the [Petitioner’s] first
name. He described the [Petitioner] as a black male with dreadlocks, and
he told Detective Strickling where the [Petitioner] lived and the type of
vehicle that he drove.

        After speaking with Mr. Pointer, Detective Strickling compiled a
photographic lineup that contained the [Petitioner’s] picture. He testified
that he did not tell the victims that the man T.B. had seen in booking was in
the lineup or that any of the persons in the lineup had a tattoo of the letter
“C.” He stated that he read the victims the “advisory for reviewing a
photograph form” and explained to the victims that “the guilty party may or
may not be in here, and the purpose of the photo lineup is to free up the
innocent as well as [implicate] the guilty.” T.B. and J.C. confirmed that
Detective Strickling gave them cautionary instructions before showing
them the lineup. T.B., J.C., and P.M. each viewed the lineup separately.
T.B., J.C., and Detective Strickling all testified that Detective Strickling did
not direct their attention to a particular photograph. T.B. picked out the
[Petitioner’s] photograph almost immediately after seeing the lineup, and
she told Detective Strickland that she was “[o]ne hundred percent sure” of
                                     -6-
her identification. J.C. also selected the [Petitioner’s] photograph, and he
believed that he was “75 to 80 percent” confident in his identification.

       Kirk Pointer testified that he pled guilty to aggravated rape,
aggravated sexual battery, two counts of aggravated robbery, and
aggravated burglary stemming from the incident at the victims’ home. He
stated that he was friends with the [Petitioner] and Pop and had known
them for about six months prior to the incident. The men met at Mr.
Pointer’s aunt’s house to discuss the crime. He knew the [Petitioner] as
“Rod” and the third man as “Pop.” Mr. Pointer recalled that the [Petitioner]
had dreadlocks and tattoos on his arms. When asked whose idea it was to
commit the robbery, Mr. Pointer testified, “I think it was - I think it was
they idea.” He believed that the house was selected because it contained
drugs. He did not have any knowledge that drugs were in the house, and he
received this information from the [Petitioner] and Pop. He agreed that the
District Attorney did not threaten him or coerce him into pleading guilty
and that he did not receive any promises in exchange for his guilty plea. He
agreed that the District Attorney did not ask him to testify at trial in
exchange for a plea deal.

        On cross-examination, Mr. Pointer testified that he had “a lot” of
prior felonies. He agreed that he was facing a potential sentence of life
without parole as a result of the “three strikes rule.” He agreed that he was
initially charged with fourteen crimes and that nine were dismissed after he
pled guilty to five. He testified that the [Petitioner] may have had a “C”
tattooed on his arm but that he could not recall what was on the
[Petitioner’s] other arm. He testified that he did not attempt to help
detectives find Pop because he did not know where to find him.

       Mr. Pointer’s attorney testified that he had thorough discussions with
the District Attorney about a plea bargain for Mr. Pointer. He agreed that
the discussions did not involve the possibility of Mr. Pointer testifying
against any of his co-defendants in the case.

        Ellard Miller testified that he was the records technician at the
Davidson County Sheriff’s Office. He authenticated documents that
showed that the [Petitioner] and T.B. would have been in the booking area
at the same time.

        Dr. Jeffrey Neuschatz testified as an expert in the field of eyewitness
identification. He testified that a lengthy retention interval between an
                                     -7-
      event and a later viewing of a lineup could be harmful in making an
      accurate eyewitness identification and could potentially lead to a mistaken
      identification. He testified that it was possible that T.B. could have
      mistakenly incorporated her encounter with the [Petitioner] in jail into her
      memory of the robbery. He stated that as a result, T.B. could have been
      mistaken in her later identification of the [Petitioner].

             Dr. Neuschatz testified that a high-stress situation decreases a
      person’s ability to make an accurate identification. He discussed “weapon
      focus,” which is a theory that if a weapon is present, a person is more likely
      to be looking at the weapon instead of focusing on the other aspects of the
      event. He testified that weapon focus “inhibits people’s ability to make
      accurate identifications.”

              Dr. Neuschatz explained that confidence in an identification did not
      always correlate to accuracy in the identification. He testified that
      confidence was affected by a variety of factors that were unrelated to the
      accuracy of an identification or the memory of a particular event. He also
      testified that covering a person’s hairline impaired the accuracy of an
      eyewitness identification. He agreed that if a person’s face were covered
      with a bandana, it could affect another person’s ability to accurately
      remember the event and make an identification. He testified that it was
      more difficult to identify a person whose face was covered than a person
      whose face was fully visible.

             Dr. Neuschatz testified that several guidelines for conducting an
      unbiased lineup were followed in this case but that several were not
      followed, particularly the lack of a “double blind” lineup. He testified that
      the lineup was not a double blind lineup because Detective Strickling knew
      the identity of the suspect. He explained that the guidelines for unbiased
      lineups were promulgated by the Department of Justice, but he agreed that
      the Department of Justice had not recommended a double blind lineup
      when the lineup guidelines were published in 1999. He agreed that the
      combined effect of a high-stress situation, the presence of weapons, and the
      covering of faces could have led to a mistaken identification in this case.

Crosby, 2015 WL 4197613, at *1-5 (footnotes omitted). Based upon this evidence the
jury convicted the Petitioner of four counts of aggravated kidnapping, three counts of
aggravated robbery, one count of burglary, one count of aggravated assault, and one
count of possession of a firearm during the commission of a dangerous felony, and the
trial court imposed an effective sentence of thirty-four years.
                                          -8-
         The Petitioner filed a post-conviction petition alleging, among other things,
ineffective assistance of counsel. He contended that his attorney (“Counsel”) was
ineffective for: (1) failing to communicate adequately with the Petitioner; (2) failing to
adequately investigate the case; and (3) failing to withdraw at the Petitioner’s request. At
the post-conviction hearing, the Petitioner testified that his case, from arraignment to
trial, lasted approximately fourteen months. During this time, he said that he met with
Counsel two times. The Petitioner stated that he met with Counsel’s private investigators
“often” but that the investigators were unable to answer the Petitioner’s questions.

       The Petitioner testified that Counsel provided him with a copy of the discovery in
the case but that he did not understand most of what he read. He recalled telling Counsel
that he did not understand the discovery documents he was reading, and Counsel
responded that the Petitioner matched the suspect’s description. The Petitioner said that
Counsel did not attempt to explain discovery to him. He reiterated that he mostly met
with investigators who were unable to answer his questions. The Petitioner did not
articulate what his questions about the discovery were but agreed that his questions were
“outside of what it was that [the investigators] were investigating.”

        The Petitioner testified that Counsel never discussed the possibility of filing pre-
trial motions. Further, Counsel never discussed a defense strategy or the strength of the
State’s case against the Petitioner. The Petitioner stated that Counsel failed to review his
statements to police with him before the trial. He agreed that he waived his right to
testify at the trial but explained that he chose not to testify because he “didn’t know half
of what I was even going through.”

       The Petitioner testified that he provided Counsel with information about potential
witnesses and Counsel failed to contact these potential witnesses. The Petitioner said that
he tried to give Counsel his mother’s phone number but that Counsel did not want to
speak with her unless she was “a part of the case.” The Petitioner said that he wanted
Counsel to speak with his mother because he did not understand what he was being told
by the investigators. He confirmed that the only person he wanted Counsel to contact
was his mother. The Petitioner said that he did not recall Counsel ever returning one of
his phone calls but that Counsel did respond to the Petitioner’s letters. He said the
responses, however, were unhelpful.            The Petitioner confirmed that “most
communication” with Counsel occurred at court.

       The Petitioner testified that, due to these difficulties, he sent a letter to the Board
of Professional Responsibility “explaining that we [are] having a conflict of interest, that
I don’t know what I’m dealing with.” The Petitioner identified a March 10, 2012
response letter from the Board of Professional Responsibility that included Counsel’s
                                            -9-
response to the complaint. After receiving this letter, the Petitioner did not see Counsel
again until trial, seven months later. The Petitioner identified a “motion for dismiss
counsel” that the Petitioner filed on September 10, 2012. When asked about the outcome
of this motion, the Petitioner said he “never even came in the courtroom for this motion.”

       The Petitioner testified that he wanted Counsel to access phone records and his co-
defendant’s cell records. The Petitioner claimed that the numbers Mr. Pointer provided
the detectives were not his phone numbers. The Petitioner believed that the phone
records would have shown that Mr. Pointer was “trying to use his story to involve [the
Petitioner] in the case.” The Petitioner said that the phone records might have shown that
he was outside the residence when he received a phone call from one of his co-defendants
instructing him to enter the residence.

        On cross-examination, the Petitioner agreed that he understood the allegations
against him and, generally, what the testimony against him would be at trial. The
Petitioner confirmed that he was aware before trial that he had been identified as a
perpetrator of the crimes. The Petitioner agreed that Counsel visited him in jail in
February 2012, approximately seven months before trial. When asked what questions he
had that Counsel did not provide answers for, the Petitioner reiterated “I didn’t
understand fully of what I was reading.” When pressed for more specific examples of
what questions went unanswered, the Petitioner stated that Counsel was not “trying to get
[his] side of the story” and merely urged him to sign a plea agreement with the State.

       The Petitioner testified that Counsel conveyed the State’s offer of a fifteen-year
sentence to plead guilty. He explained that he did not want to enter the plea agreement
because he was serving a probation sentence originating in Georgia. He denied that
Counsel ever told him that the minimum sentence possible was fifteen years. The
Petitioner acknowledged that Counsel filed a motion to suppress the identification in his
case and obtained an expert witness, Dr. Neuschatz, to testify at trial. The Petitioner
agreed that in August 2012, Counsel met with the Petitioner five times in one week and at
multiple other court hearings. He further agreed that Counsel attempted to talk to him
about the Petitioner’s tattoos and what the State’s witness might testify to at trial but that
he could not listen because Counsel “argu[ed] and holler[ed] at [him].” The Petitioner
agreed that Counsel encouraged him to enter a guilty plea, but he did not because
Counsel failed to explain the process. The Petitioner agreed that Counsel’s paralegal
explained the State’s offer to him.

       Counsel testified that he was appointed to the Petitioner’s case and attended the
arraignment on August 10, 2011. Counsel said that he filed for discovery, reviewed it,
and then sent a copy to the Petitioner. He said that he discussed the State’s evidence with
the Petitioner and what the defense would need to negate the proof. Counsel said that, in
                                            - 10 -
his interactions with the Petitioner, he found that when he told the Petitioner what he did
not want to hear, the Petitioner would claim they could not communicate. Counsel stated
that the defense faced significant challenges because the eyewitnesses identification was
based upon some very specific characteristics, such as the tattoo and dreadlocks, and Mr.
Pointer intended to testify against the Petitioner.

       Counsel testified that the Petitioner did not agree with the State’s witnesses and
wanted to proceed to trial. He said that the Petitioner would become upset if Counsel did
not agree with the Petitioner’s version of the events. Counsel stated that he did not
believe it was his job to agree with the Petitioner’s version of the events but rather to
explain the charges, range of punishment, evidence, and possibilities for the defense. In
evaluating the relevant factors of this case, Counsel became of the opinion that it would
be very difficult to succeed at trial. Counsel discussed the unique circumstances that led
to the State making the low offer for a guilty plea in this case. He said that he took the
Petitioner’s mother to the holding cell so that she could speak with him and possibly
explain “things” to the Petitioner. At the end of the discussion, the Petitioner’s mother
said, “we’re gonna leave this in God’s hands and you take it to trial.”

        Counsel testified that he was aware that, at the time of the offense, the Petitioner
was serving a probation sentence in Georgia. The State factored the probation sentence
into its offer. Counsel stated that the State’s offer and the Petitioner’s potential sentence
if convicted at trial were “repeatedly explained to him.” He said that he was
“dumbfounded” that the Petitioner now claimed that he did not understand. Counsel
recalled that the assistant district attorney assigned to the case reviewed the State’s offer
with the Petitioner, as did Counsel’s paralegal. Counsel said that the Petitioner told him
that he did not want to accept the offer because his uncle, who had served time in the
Department of Correction, felt “the offer was too much.”

       Counsel testified that, in an attempt to answer some of the Petitioner’s questions,
he arranged for the assistant district attorney to meet with he and the Petitioner to discuss
who the witnesses would be, why the State was making their offer, and why the
Petitioner was charged with those specific offenses. Counsel confirmed that he discussed
with the Petitioner pre-trial motions and the State’s notice of enhancement. Counsel filed
a motion to suppress the photographic lineup, but the trial court denied the motion. As to
the Petitioner’s complaint that Counsel would not speak with his mother, Counsel stated
that he did speak with her; however, he noted that the Petitioner’s mother was not a
witness to the crimes nor did she have any information about the offenses that would aid
the defense.

       Counsel testified that he did not recall discussing phone records with the Petitioner
but said that he typically would not present evidence that a client had contact with a co-
                                           - 11 -
defendant during an offense. Counsel stated that he was aware of the notice of
enhancement and agreed that the prior offenses were for possession of a firearm and a
felony drug offense.

       On cross-examination, Counsel testified that he filed a motion with the court to get
an investigator assigned to the case. Counsel said he did not recall the Petitioner asking
about obtaining phone records, but in his experience it was often harmful to present
communication with a co-defendant during an offense. Counsel said that he tried to
“distance” the Petitioner from the crime. Counsel read a portion of his response to the
Board of Professional Responsibility with respect to the Petitioner’s complaint, “I have
no intentions of withdrawing from representation of [the Petitioner].” Counsel agreed
that in the following paragraph, he stated that he would not speak with the Petitioner’s
mother because he had no obligation under the Rules of Conduct to do so.

     After hearing the evidence, the post-conviction court denied relief. It is from this
judgment that the Petitioner now appeals.

                                       II. Analysis

       On appeal, the Petitioner maintains his claim that Counsel’s representation was
ineffective. He contends that Counsel failed to adequately communicate with him, failed
to adequately investigate the case, and failed to withdraw at the Petitioner’s request. The
State responds that the Petitioner has not met his burden of showing that any alleged
deficiency led to his conviction. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
the evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court’s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.

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       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

              First, the [petitioner] must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the [petitioner] by
      the Sixth Amendment. Second, the [petitioner] must show that the
      deficient performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the [petitioner] of a fair trial,
      a trial whose result is reliable. Unless a [petitioner] makes both showings,
      it cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
deferential and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,
we note that a defendant in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.
                                           - 13 -
Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
“‘The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.’” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “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; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

                                    A. Communication

       The Petitioner alleges that Counsel failed to keep him informed throughout the
case and that, because Counsel failed to effectively communicate with the Petitioner, he
was unable to assist in his own defense. The State responds that the Petitioner has failed
to establish any deficiency or any resulting prejudice.

       As to this issue, the post-conviction court made the following findings:

       Trial Counsel met with Petitioner multiple times at set court dates and
       visited him at the jail on at least six (6) occasions. During these meetings,
       Trial Counsel provided and reviewed with Petitioner the written discovery,
       including what the State’s witnesses were expected to say at trial, explained
       to him the charges against him, what the State had to prove, and the range
       of punishment. And, by his own admission, Petitioner met multiple times
       with the investigator to discuss the case although the investigator could not
       answer all of his questions. Although it may be viewed by some as
       unorthodox, Trial Counsel had Petitioner speak with the District Attorney
       on two separate occasions for her to also explain to him his criminal
       exposure, including his exposure to enhanced punishment, and confirm that
       the co-defendant intended to testify against him. Additionally, Trial
       Counsel had his paralegal speak with Petitioner concerning his exposure,
       how jail credits were applied for these types of charges, and other factors
       bearing on sentencing based on his own experiences from serving time for

                                            - 14 -
       aggravated robbery convictions. Trial Counsel also communicated with the
       plea deal multiple times to Petitioner and advised him to take it.

              ....

       Petitioner has failed to present credible evidence that Trial Counsel failed to
       meet with him to discuss the merits of the State’s case and his exposure if
       convicted. In fact, the record shows Trial Counsel went to great lengths to
       insure that Petitioner understood the nature of the charges against him, the
       possible punishment related to the offenses, the evidence against him as
       contained in the discovery, which was given to and reviewed with him by
       Trial Counsel.

       The evidence does not preponderate against the post-conviction court’s findings.
The Petitioner initially claimed he only met with Counsel twice, but during further
questioning he acknowledged meeting with Counsel on numerous court dates. The
Petitioner agreed that Counsel met with him five times in one week in August 2012 and
visited him in jail in February 2012. Further, the Petitioner agreed at the post-conviction
hearing that he met with Counsel’s investigator multiple times. The Petitioner also
agreed that he met with Counsel’s paralegal. Counsel testified that, due to the
Petitioner’s continued questioning about why he was charged with certain offenses and
concern about whether his co-defendant would testify, he arranged for the Petitioner to
speak directly with the assistant district attorney assigned to the case in hopes of
resolving the Petitioner’s concerns. Moreover, the Petitioner has not shown 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.

       Accordingly, the Petitioner has not shown that he is entitled to relief under the
Strickland standard. Therefore, the post-conviction court properly denied relief.

                                     B. Investigation

       The Petitioner asserts that Counsel failed to investigate the case. Specifically, he
challenges Counsel’s failure to subpoena the Petitioner’s or his co-defendant’s phone
records and Counsel’s failure to speak with the Petitioner’s family about an alibi. The
State responds that the Petitioner has not established a deficiency or prejudice from any
alleged deficiency.

       The post-conviction court made the following findings:



                                           - 15 -
Petitioner complains that Trial Counsel failed to adequately investigate the
case or to develop a defense strategy for the trial. In support of his
position, Petitioner specifically points to Trial Counsel’s failure to
interview his mother and sister to develop an alibi and his failure to obtain
Petitioner’s phone records to establish his non-presence at the victims’
apartment, thus corroborating his alibi by his family.

       ...

Trial Counsel admits that he did not investigate either “alibi” situation as
possible defenses . . . .

        Initially the court notes that Petitioner did not have his mother or
sister testify at the post-conviction hearing to-establish that they would
have provided an alibi defense. A petitioner who claims ineffective
assistance of counsel based on the failure to call witnesses must present
those witnesses at the post-conviction hearing, for the court is not in a
position to speculate as to what the witness might say or if the witness is
credible. State v. Black, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990). [ ]

       More importantly, Petitioner’s own testimony at the post-conviction
hearing belies the viability of an alibi defense and corroborates Trial
Counsel’s opinion that Petitioner’s family members were not credible.
Although Petitioner complains about the failure to pursue an alibi defense,
he admits that he was present and ransacked the house, but denied
culpability because he didn’t know the reason his co-defendants went there
until he was called by Mr. Pointer to come to the apartment. Before then,
he claims to have been waiting outside. He further claims that his phone
records would have established the fact that he was waiting outside when
Mr. Pointer called. Being present at the scene is not an alibi. Instead it is
an admission against interest.

       An attorney has an affirmative duty to “conduct an appropriate
investigation, both factually and legal”. Nichols v. State, 90 S.W.3d 576,
587 (Tenn. 2002). If the investigation leads to possible defenses, then trial
counsel “must assert them in a proper and timely manner”. Id. If counsel
foregoes any part of the investigation, the decision to do so must be based
on sound reasoning. Strickland v. Washington, 466 U.S. at 690-91.
Although a defendant’s statement or confession may not eliminate
counsel’s duty to investigate, the reasonableness of counsel’s action “may
be determined or substantially influenced by the defendant’s own
                                   - 16 -
       statements or actions. The court is perplexed how Petitioner can complain
       about Trial Counsel not developing an alibi defense when it is clear that to
       do so would require the use of perjured testimony. Further, it boggles the
       court’s mind why Petitioner would want Trial counsel to get the phone
       records that would confirm his presence at or near the scene of the crime.
       The issue is without merit.

       The evidence does not preponderate against the post-conviction court’s findings.
The Petitioner testified that the phone records would show that he was at the crime scene.
Counsel testified that he did believe that this evidence would benefit the defense.
Further, the Petitioner failed to show how the absence of the phone records prejudiced
him. As to Counsel’s failure to interview the Petitioner’s family, we agree with the post-
conviction court that to succeed on a claim of ineffective assistance of counsel for failure
to call a witness at trial, a petitioner should present that witness at the post-conviction
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). No such
witnesses testified at the post-conviction hearing in this case. Therefore, we conclude
that the Petitioner has not shown by clear and convincing evidence that Counsel was
deficient in his investigation of witnesses.

        Accordingly, we conclude that the post-conviction court did not err when it denied
relief as to this issue. The Petitioner failed to show that Counsel’s representation was
ineffective and that he was prejudiced by Counsel’s representation. The Petitioner is not
entitled to relief.

                                 C. Failure to Withdraw

        As his last issue, the Petitioner argues that Counsel was ineffective because he
failed to withdraw as counsel at the Petitioner’s request. The State responds that, because
the trial court denied the Petitioner’s motion to withdraw, Counsel was required to
continue his representation of the Petitioner.

       As to this issue, the post-conviction court made the following findings:

       Testimony was given that Petitioner filed a motion for Trial Counsel to
       withdraw. Using its discretion, this court denied the motion and Trial
       Counsel was not allowed to withdraw. Because Trial Counsel could not
       withdraw from representation without the consent of this court, Trial
       Counsel was not ineffective in this regard.

      The evidence does not preponderate against the trial court’s findings. Counsel
was not free to withdraw from representation without the trial court’s permission. The
                                           - 17 -
Petitioner filed a motion and had the burden of establishing a ground for the grant of
substitute counsel. State v. Gilmore, 823 S.W.2d 566, 568-69 (Tenn. Crim. App. 1991).
The trial court denied the motion; therefore, Counsel was not at liberty to withdraw.

       Accordingly, the trial court did not err when it denied relief on this basis. The
Petitioner is not entitled to relief.

                                    III. Conclusion

      In accordance with the foregoing reasoning and authorities, we affirm the post-
conviction’s court dismissal of the Petitioner’s post-conviction petition.


                                            ____________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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