Brian S. Roberson v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 12, 2014 Session
BRIAN S. ROBERSON v. STATE OF TENNESSEE
Appeal from the Circuit Court for Williamson County
No. CR043428 Timothy L. Easter, Judge
No. M2013-02565-CCA-R3-PC - Filed March 27, 2015
The Petitioner, Brian S. Roberson, appeals from the denial of post-conviction relief by the
Circuit Court for Williamson County. He was convicted for the sale of .5 grams or more of
cocaine and sentenced to thirty years’ imprisonment in the Tennessee Department of
Correction. On appeal, the Petitioner argues that he received ineffective assistance of trial
and appellate counsel. Upon review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and R OBERT H. M ONTGOMERY, J R., JJ., joined.
M. Matthew Milligan, Franklin, Tennessee, for the Petitioner, Brian S. Roberson.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Kim Helper, District Attorney General; and Sean D. Buddy, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
The Petitioner’s conviction for the sale of .5 grams or more of cocaine stems from a
controlled purchase involving a confidential informant and Joey Kimble, Director of the 21st
Judicial District Drug Task Force. This court summarized the underlying facts on direct
appeal as follows:
Officer Chris Mobley was an officer with the drug task force of the
Williamson County Sheriff’s Department. On July 15, 2003, he worked with
Sylvester Island, a confidential informant, who was making a controlled
purchase of cocaine. Island was paid $100 per transaction and had his rent
paid by the drug task force. Officer Mobley had worked with Island in the
past. Officer Mobley and another officer, Agent Zollicoffer, met Island and
searched both his person and his vehicle finding no contraband. They set up
a transmitter and recording device in order to record the purchase. The
officers then issued Island $250 to make the purchase. In the presence of the
officers, Island made a phone call to the [Petitioner], known to him as
“Ratman,” in order to schedule the purchase. At some point on Island’s way
to meet the [Petitioner], the transmitting equipment stopped working. Island
met with the officers so that they could fix the problem. Island then continued
on his way.
When Island first arrived to meet Ratman, the [Petitioner] was not there.
Ratman arrived shortly thereafter in his car. The [Petitioner] got in Island’s
car. Island gave the [Petitioner] the $250 and the [Petitioner] gave Island
approximately 5 to 6 grams of crack cocaine. After the deal was over, Island
began talking to a neighbor while the [Petitioner] departed in his car. Island
returned to the officers at the meeting location.
The officers once again searched Island and his vehicle and found no
contraband other than that just purchased. Island gave Officer Zollicoffer the
cocaine he had purchased with the $250. The cocaine’s preliminary weight
was 6.2 grams. Upon returning to the drug task force, the officers conducted
a field test, and the substance tested positive for being cocaine. The officers
placed the cocaine in an evidence bag, sealed the bag with tape, and wrote
their initials on the tape. The evidence bag was placed in a temporary
evidence locker.
Joey Kimble is the Director of the 21st Judicial District Drug Task
Force. He is also the evidence custodian. On July 16, 2003, he retrieved the
cocaine sold by the [Petitioner] to Island and placed it in the evidence room.
On August 11, 2003, the Grand Jury of Williamson County indicted the
[Petitioner] for two counts of selling .5 grams or more of cocaine.
On October 1, 2003, Director Kimble took the cocaine to the TBI
laboratory and gave the cocaine to a lab technician. Agent Cassandra Franklin
is a forensic chemist with the Tennessee Bureau of Investigation. She received
a sealed bag from a laboratory technician. She opened the bag and tested the
substance. She tested the substance purchased by Island at the TBI laboratory.
She determined that the substance was indeed cocaine, and the cocaine base
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weighed 5.4 grams. After testing the cocaine, she replaced the cocaine in the
bag and sealed the bag with evidence tape and wrote her initials on the tape.
On January 21, 2004, Director Kimble retrieved the cocaine and
returned it to the evidence room at the drug task force where it remained until
the day of trial.
At the conclusion of a jury trial held on March 8, 2005, the jury found
the [Petitioner] guilty of one count of the sale of .5 grams or more of cocaine.
The trial court held a sentencing hearing on May 16, 2005. The trial court
sentenced the [Petitioner] to fifty-four years as a Range III Persistent Offender
to be served consecutively to two unrelated sentences.
State v. Brian Roberson, No. M2005-01771-CCA-R3-CD, 2007 WL 92354, at *1-2 (Tenn.
Crim. App. Jan. 11, 2007), perm. app. denied (Tenn. Apr. 23, 2007). This court affirmed the
Petitioner’s conviction but remanded the case for resentencing, noting that the Petitioner
should have been sentenced as a Range IV career offender to thirty years. Id. at *8-9. The
Tennessee Supreme Court denied the Petitioner’s permission to appeal.
On April 24, 2008, the Petitioner filed a timely pro se petition for post-conviction
relief alleging multiple grounds of ineffective assistance of counsel. The Petitioner was
subsequently appointed counsel, but no amended petition was filed on his behalf. The
following evidence, as relevant to this appeal, was adduced at the June 24, 2013 post-
conviction hearing.
Post-Conviction Hearing. The Petitioner testified that his appellate counsel did not
meet with him or call him prior to filing the appellate brief. He said that appellate counsel
omitted the issue of the State’s use of perjured testimony at his trial. He stated that he would
have asked appellate counsel to include the issue if she had met with him prior to submitting
the brief. The Petitioner recalled that he only met with appellate counsel when he had to
appear in court. According to the Petitioner, a State’s witness testified at trial regarding an
action that the witness did not actually perform. Specifically, the Petitioner alleged that
Agent Chris Mobley testified regarding meeting with and obtaining the cocaine from the
confidential informant and then providing the secured evidence to Director Joey Kimble of
the 21st Judicial District Drug Task Force. The Petitioner maintained that this testimony was
false because Director Kimble later testified that Agent Leonardo Zollicoffer’s name was
listed in the evidence log. He produced a letter dated April 17, 2006, that he wrote to
appellate counsel after the brief had been filed which urged counsel to argue the perjured
testimony issue. The Petitioner said that this testimony prejudiced his case because some
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jurors had stated that they found law enforcement to be highly credible. He believed that his
conviction would have been reversed if appellate counsel had raised the issue.
The Petitioner testified that his trial counsel was ineffective for failing to secure a
hearing to suppress the video and audio recordings of the controlled purchase. He said that
he asked trial counsel twice to attempt to suppress this evidence. He stated that trial
counsel’s failure prejudiced his defense because the recordings were essential to his
conviction. The Petitioner also alleged that trial counsel was ineffective because counsel did
not object when the Petitioner told him that the trial judge and some jurors had fallen asleep.
The Petitioner testified that during the presentation of evidence, he noticed that a few jurors
and the judge had been nodding off and not paying attention. He later learned that one of the
sleeping jurors was the foreman. He stated that the outcome of the two-day trial would have
been different if the judge and members of the jury had not been asleep. The Petitioner
further stated that trial counsel was ineffective because counsel did not provide the Petitioner
with the State’s notices to seek enhanced punishment and to sentence him as a habitual drug
offender prior to trial. After he was sentenced, the Petitioner filed a pro se motion alleging
invalid notice on the part of the State. He said that he filed the motion pro se because he did
not receive trial paperwork until after the trial. The Petitioner testified that he would not
have gone to trial if he had been aware of the possibility of enhanced punishment. He stated
that he and trial counsel did not discuss the sentencing factors. The Petitioner claimed that
the cumulative effect of the errors of trial and appellate counsel prejudiced the judicial
process and warranted reversal in his case.
On cross-examination, the Petitioner acknowledged that trial counsel objected to the
chain of custody established in the case and that appellate counsel raised the issue on direct
appeal. He agreed that the perjury issue related to the chain of custody of the evidence. The
Petitioner maintained that some jurors and the trial judge were actually asleep, but he could
not provide specific facts to support his claim. He agreed that trial counsel met with him
multiple times before trial and that he had five prior drug convictions. The Petitioner
testified that trial counsel discussed the potential years of his sentence but never told him
about the State’s notice to seek enhanced punishment. He agreed that the State had offered
twenty-year and twenty-two-year sentences and that he wanted to go to trial because he
believed he was innocent of the charge.
On redirect examination, the Petitioner testified that trial counsel was surprised when
he received a fifty-four-year sentence. He said he did not realize his sentence could be more
than twenty or twenty-two years until he spoke with an inmate legal advisor and looked at
a chart. According to the Petitioner, when he wrote to trial counsel that his prior convictions
should not have enhanced his sentence, counsel responded by acknowledging that the
Petitioner received a higher sentence than warranted. He said that he saw trial counsel make
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a note about the sleeping jurors but that counsel never objected on the record. He agreed that
a point of reference would have been established if trial counsel had raised the issue.
Trial counsel testified that he passed the Tennessee Bar in 2000 and began by
practicing as a prosecutor for three years. During that time, he tried drug cases involving
confidential informants. He then entered private practice and represented criminal
defendants, including individuals charged with drug offenses. He was the Petitioner’s third
court-appointed counsel in this case, and he reviewed the discovery materials with the
Petitioner, including notes from the previous attorney. Trial counsel said that he did not file
a motion to suppress the audio and video recordings because he did not have a good faith
basis to file such a motion. There was no Fourth Amendment issue regarding illegal search
and seizure, and he considered the evidence to be relevant. He stated that “[t]he tape was
simply [the Petitioner] getting into a vehicle with [the confidential informant] and having a
conversation.” Trial counsel was unable to show the video to the Petitioner before trial
because he could not bring video equipment into the jail. However, trial counsel said he “had
made copious notes on exactly what was said and what the video showed,” and he discussed
the evidence with the Petitioner. Because eight years had passed since the trial, trial counsel
could not specifically recall whether he informed the Petitioner of the reason for not filing
a motion to suppress. He said that he and the Petitioner had disagreed on whether the tape
contained sufficient evidence to support a drug conviction. Contrary to trial counsel’s
advice, the Petitioner did not believe that he could be convicted because the video did not
depict a hand-to-hand transaction.
Trial counsel acknowledged that the Petitioner alerted him during trial that some
jurors may have been nodding off. He recalled that there was a juror whose eyes would
intermittently open and close for a few seconds, but he was uncertain whether the juror was
actually asleep. Trial counsel stated that if the juror had indeed nodded off momentarily, “it
would not have been in [the Petitioner]’s best interest to point it out to everyone in the
[c]ourtroom[.]” However, he did not believe that the trial judge fell asleep. He said that the
judge “was merely closing his eyes when he listened to the tape.” Trial counsel testified that
it was a strategic decision not to question whether the juror was asleep because embarrassing
the juror would have harmed the Petitioner’s case.
Trial counsel testified that he discussed everything relative to the case with the
Petitioner in the jail before trial. He could not recall whether he provided the Petitioner with
a copy of the State’s third notice to seek enhanced punishment. However, he stated that he
reviewed the notice with the Petitioner and that it contained the “same five prior
convictions[.]” He did not file an objection to the State’s use of enhancement factors
because he thought the convictions were valid. Trial counsel acknowledged that he possibly
did not provide the habitual drug offender notice to the Petitioner, but he testified that they
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had “lengthy discussions” about the Petitioner’s prior record, sentencing range, percentage,
and likely amount of time to be served if convicted. Trial counsel said that he thoroughly
explained the possible sentence and that the Petitioner understood. Even though the
Petitioner faced a possibility of 80 to 120 years for all of his convictions, trial counsel said
that the Petitioner rejected the State’s offer of twenty-two years at forty-five percent because
he did not believe the proof was adequate to convict him. Although trial counsel advised the
Petitioner that the likelihood of a conviction was high, the Petitioner was determined to have
a trial.
Appellate counsel testified that she was appointed to represent the Petitioner several
months after his motion for new trial was denied. She conferred with trial counsel about the
case and then reviewed the trial records. Appellate counsel could not recall when she first
spoke with the Petitioner, but she said that they communicated in person at the courthouse
and through letters. She stated that the Petitioner “was very opinionated about the issues”
and “ha[d] a lot to share.” She could not recall whether she met with the Petitioner before
or after the appellate brief was filed, but she was certain that they discussed the issues before
the brief was submitted. Appellate counsel said she kept a record of the letters but could not
locate the file prior to the hearing. She stated that the Petitioner possibly sent her a letter
raising an issue that was not included in the brief, but she did not recall receiving such a
letter. After the appeal in this case, appellate counsel represented the Petitioner at trial in a
separate matter.
Appellate counsel recalled that six issues were raised on appeal and that the Court of
Criminal Appeals granted relief on the sentencing issue. Specifically, the appellate court
found that the trial court should have enhanced the Petitioner’s range rather than his felony
classification. Accordingly, the Petitioner was resentenced for a Range IV, Class B felony
instead of a Range III, Class A felony. When presented with the Petitioner’s April 17, 2006
letter urging her to argue the perjured testimony issue, appellate counsel did not remember
the document. She agreed that the letter was sent after the brief had been filed and that the
issue had not been included. Appellate counsel stated that the Petitioner never raised the
perjury issue prior to this letter and that trial counsel would have included the issue in the
motion for new trial if the Petitioner had mentioned it. Moreover, she did not believe that
the issue had any merit because “there is nothing at all that would show that the officer’s
testimony was perjured.” Appellate counsel nevertheless opined that the issue would have
been harmless error on appeal because it related to the chain of custody, an issue that was
resolved by the appellate court. She stated that even if there had been conflicting testimony,
there was no indication that the chain of custody had been compromised.
At the conclusion of the hearing, the post-conviction court took the matter under
advisement. On October 16, 2013, the court entered a written order denying relief.
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Specifically, the court accredited the testimony of trial and appellate counsel and concluded
that the Petitioner failed to establish either deficient representation or prejudice. The
Petitioner timely appealed the post-conviction court’s order.
ANALYSIS
On appeal, the Petitioner argues that the post-conviction court erred in concluding that
trial and appellate counsel rendered effective assistance of counsel.1 He contends that trial
counsel was deficient by failing to suppress the audio and video recordings on evidentiary
grounds, failing to object to the sleeping judge and jurors, and failing to inform the Petitioner
of the State’s multiple notices to enhance punishment. The Petitioner further alleges that
appellate counsel was ineffective for omitting the perjured testimony issue on direct appeal.
Finally, the Petitioner asserts that he is entitled to post-conviction relief based on the
cumulative errors committed during trial and on appeal. The State responds that the post-
conviction court properly denied relief because the Petitioner failed to establish that he
received ineffective assistance of trial and appellate counsel. We agree with the State.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103. The Tennessee Supreme Court has held:
A post-conviction court’s findings of fact are conclusive on appeal
unless the evidence preponderates otherwise. When reviewing factual issues,
the appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of their
testimony are matters for the trial court to resolve. The appellate court’s
review of a legal issue, or of a mixed question of law or fact such as a claim
of ineffective assistance of counsel, is de novo with no presumption of
correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation marks and
citations omitted). “The petitioner bears the burden of proving factual allegations in the
petition for post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-
30-110(f); Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear
and convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
1
We have re-ordered the Petitioner’s issues for clarity.
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Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:
The right of a person accused of a crime to representation by counsel
is guaranteed by both the Sixth Amendment to the United States Constitution
and article I, section 9, of the Tennessee Constitution. Both the United States
Supreme Court and this Court have recognized that this right to representation
encompasses the right to reasonably effective assistance, that is, within the
range of competence demanded of attorneys in criminal cases.
Vaughn, 202 S.W.3d at 116 (internal quotation marks and citations omitted).
In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the defendant makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the evidence
establishes that the attorney’s conduct fell below “an objective standard of reasonableness
under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688; Baxter,
523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the petitioner
establishes “‘a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting Strickland, 466
U.S. at 694). This two-prong Strickland test applies to claims of ineffective assistance of
counsel at either the trial or appellate levels. See Campbell v. State, 904 S.W.2d 594, 596
(Tenn. 1995) (citing Evitts v. Lucey, 469 U.S. 387 (1985)).
We note that “[i]n evaluating an attorney’s performance, a 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.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, this
“‘deference to matters of strategy and tactical choices applies only if the choices are informed
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ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(quoting Goad, 938 S.W.2d at 369).
The Petitioner argues that his appellate and trial counsel were ineffective for several
reasons. He first complains that trial counsel was ineffective for failing to secure a hearing
to suppress the audio and video evidence despite the Petitioner’s request. He maintains that
trial counsel should have challenged the admission of the evidence because the video did not
show a hand-to-hand exchange between the Petitioner and the confidential informant. At the
post-conviction hearing, trial counsel testified that he did not have a good faith basis to file
a motion to suppress the recordings of the controlled purchase. He stated that the video
showed the Petitioner having a conversation in the confidential informant’s vehicle and that
the evidence was not obtained through an unreasonable search and seizure. Moreover, trial
counsel considered the evidence to be relevant. He noted that the Petitioner mistakenly
believed that the video was inadequate to support a conviction. In its written order denying
relief, the post-conviction court accredited trial counsel’s testimony that there was no valid
ground to suppress the video and found counsel’s strategy to be reasonable under the
circumstances. We agree with the post-conviction court’s conclusion that trial counsel was
not ineffective in this regard. Although the Petitioner faults trial counsel for failing to
challenge the admission of the recordings on evidentiary grounds, he has failed to establish
that counsel’s performance was deficient.
Next, the Petitioner alleges that the judge and some jurors fell asleep during trial and
that trial counsel was ineffective for failing to raise an objection. He contends that the issue
would have been preserved for appeal and that the outcome of the proceedings would have
been different if trial counsel had properly addressed it. At the post-conviction hearing, trial
counsel recalled that a juror may have nodded off for a few seconds, but he could not state
with certainty whether any jurors were actually asleep. He stated that the judge had merely
closed his eyes to listen to the tape. Trial counsel testified that the benefit of waking up a
juror who had fallen asleep for a few seconds was not worth the detriment of embarrassing
the juror and harming the Petitioner’s case. In denying relief based on this claim, the post-
conviction court found that the Petitioner failed to demonstrate that anyone was actually
asleep. The court specifically accredited the testimony of trial counsel and found that
counsel made the strategic decision not to bring the matter to the trial court’s attention. We
agree with the post-conviction court that trial counsel’s decision was tactical and did not
amount to deficient performance by counsel. See, e.g., Doris Nell Jones v. State, No.
M2011-02343-CCA-R3-PC, 2013 WL 871327, at *5 (Tenn. Crim. App. Mar. 8, 2013) (trial
counsel’s strategic decision not to call attention to sleeping juror did not entitle the petitioner
to post-conviction relief), perm. app. denied (Tenn. Aug. 14, 2013); Franklin Howard v.
State, No. W2009-00279-CCA-R3-PC, 2010 WL 2482327, at *7 (Tenn. Crim. App. June 17,
2010) (post-conviction relief was not warranted where petitioner failed to establish by clear
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and convincing evidence that juror was actually asleep), perm. app. denied (Tenn. Nov. 18,
2010). Moreover, apart from the Petitioner’s bare assertion of prejudice, he has failed to
support his claim with specific facts or argument. Accordingly, the Petitioner is not entitled
to relief on this issue.
The Petitioner also asserts that trial counsel failed to provide him with pretrial
pleadings, including the State’s multiple notices to seek enhanced punishment. The
Petitioner contends that he would not have gone to trial if he had known the extent of his
sentencing range. At the post-conviction hearing, the Petitioner testified that he did not
receive trial documents until after his trial. However, he acknowledged that trial counsel met
with him multiple times before trial; that he had five prior drug convictions; and that he
rejected the State’s offer of twenty-two years because he believed he was innocent. In
contrast to the Petitioner’s claims, trial counsel testified that he and the Petitioner had lengthy
discussions regarding the Petitioner’s prior record, sentencing range, and possible sentence
if convicted. Regarding this claim for relief, the post-conviction court found trial counsel
to be more credible and concluded that the Petitioner failed to prove either prong of the
Strickland test. The court noted that trial counsel was the Petitioner’s third court-appointed
attorney and that “[a]fter successfully negotiating and relaying a reduced offer to the
Petitioner, it was the Petitioner who rejected the offer and insisted on going to trial.” The
record fully supports the post-conviction court’s conclusion that trial counsel competently
represented the Petitioner during pretrial plea negotiations. Even though the Petitioner
understood that he faced a possible sentence of 80 to 120 years for all his convictions, the
Petitioner elected to go to trial rather than to accept the State’s offer of twenty-two years at
forty-five percent release eligibility. We conclude that the Petitioner has failed to meet his
burden of proof regarding this ground for relief.
The Petitioner’s next claim concerns the representation of appellate counsel. He
alleges that appellate counsel was deficient for failing to meet with him and for omitting the
perjured testimony issue in the appellate brief. In arguing that the State used perjured
testimony to secure a conviction at trial, the Petitioner contends that Drug Task Force agents
testified falsely regarding the chain of custody of the evidence. He asserts that if appellate
counsel had met with him and included the issue, the appellate court “could have ruled that
this evidence should not have been given much weight.” Although appellate counsel could
not recall whether she met with the Petitioner prior to filing the appellate brief, she testified
that the Petitioner “was very opinionated” and that they discussed the issues before the brief
was submitted. She further testified that the perjury issue was not previously raised and that
it lacked merit. In its order denying relief, the post-conviction court specifically accredited
the testimony of appellate counsel and found that “[t]here is absolutely nothing in the record
to support this claim [of perjured testimony].” The court further found that appellate counsel
“raised all the trial issues preserved for appeal as well as those sought by the Petitioner.”
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We conclude that the record supports the post-conviction court’s determination that
the Petitioner failed to prove either deficient performance or actual prejudice arising
therefrom on the part of appellate counsel. Initially, we note that “[a]ppellate counsel are not
constitutionally required to raise every conceivable issue on appeal.” Carpenter v. State, 126
S.W.3d 879, 887 (Tenn. 2004) (citing King v. State, 989 S.W.2d 319, 334 (Tenn. 1999)).
Where a petitioner claims that counsel failed to raise a certain issue on appeal, this court
should consider the merits of the issue. Id. Here, the Petitioner asserts that the appellate
court would have reversed his conviction if counsel had raised the perjured testimony issue.
However, he has failed to support his allegation with proof or argument. There is no
evidence in the record that State witnesses presented perjured testimony. Moreover, the
Petitioner conceded that the perjury issue related to the chain of custody of the evidence and
that appellate counsel argued on appeal that the State failed to establish the chain of custody.
Based on appellate counsel’s representation, the Petitioner’s sentence was successfully
reduced by twenty-four years. The Petitioner has not demonstrated that but for appellate
counsel’s failure to raise the perjured testimony issue, the outcome of the proceeding would
have been different. Accordingly, he is not entitled to relief on this claim.
As his final ground for relief, the Petitioner argues that he is entitled to post-
conviction relief based on the cumulative error doctrine. However, we have considered each
of the Petitioner’s allegations of ineffective assistance of counsel and have concluded that
he is not entitled to relief on any of his claims. Based on the record, we cannot conclude that
the results of the Petitioner’s trial and direct appeal were undermined or that the proceedings
were fundamentally unfair because of the alleged errors of trial and appellate counsel. See
Strickland, 466 U.S. at 670 (“[T]he ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.”). The Petitioner is not entitled
to post-conviction relief, and the judgment of the post-conviction court is affirmed.
CONCLUSION
After a thorough review of the record and the applicable law, we affirm the judgment
of the post-conviction court.
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CAMILLE R. McMULLEN, JUDGE
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