Kenneth Brown v. State of Tennessee

02/22/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 9, 2019 Session
KENNETH BROWN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
Nos. 11-02623, 11-07432 Lee V. Coffee, Judge
___________________________________
No. W2017-01755-CCA-R3-PC
___________________________________
The Petitioner, Kenneth Brown, appeals from the Shelby County Criminal Court’s denial
of his petition for post-conviction relief, arguing (1) that trial counsel provided
ineffective assistance in failing to present Agent James Davis and Beatrice Vaulx1 as
witnesses at trial and in failing to request an instruction on proximate cause of death; and
(2) that he is entitled to a second post-conviction hearing based on post-conviction
counsel’s ineffectiveness. We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and J. ROSS DYER, J., joined.
Lance R. Chism, Memphis, Tennessee, for the Petitioner, Kenneth Brown.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Factual Background. This case concerns the July 3, 2010 shooting of individuals
outside a home on Northmeade Avenue in Memphis, Tennessee. Following this incident,
the Petitioner was indicted for first degree premeditated murder, thirteen counts of
attempted first degree murder, thirteen counts of aggravated assault, one count of reckless
endangerment, and one count of employment of firearm during a dangerous felony. State
v. Kenneth Brown, No. W2013-00329-CCA-R3-CD, 2014 WL 5092906, at *1 (Tenn.
1
Although the transcript from the post-conviction hearing identifies this individual as “Beatrice
Baulx,” an exhibit to the post-conviction hearing shows that this individual’s name is actually “Beatrice
Vaulx.”
Crim. App. Oct. 9, 2014), perm. app. denied (Tenn. Feb. 13, 2015). Prior to trial, one
count of attempted first degree murder and one count of aggravated assault were
dismissed. Id.
The facts presented at trial showed that on July 3, 2010, the Petitioner and two co-
defendants, all of whom were armed, opened fire on a large group of people attending a
party outside a home on Northmeade Avenue. Id. at *8. As a result of this shooting, one
victim, Kimberly Jamerson, died of a single gunshot wound and a second victim,
Lamarcus Moore, received a gunshot wound to his leg. Id. at *2-4, *6. Though no other
victims sustained injuries during the shooting, numerous individuals were outside the
home and could have been shot. Id. at *1.
The shooting incident occurred because of an earlier dispute between the
Petitioner and his two co-defendants and several individuals at the home on Northmeade
Avenue. Id. at *1-3, *5-6, *8. Several witnesses2 testified at trial that someone from the
victims’ group at the Northmeade home “flagged down” the Petitioner and one co-
defendant, who had been driving by the house, for the purpose of purchasing some
marijuana. Id. at *2-3, *5. After this drug deal allegedly took place, the Petitioner and
the co-defendant drove away but returned shortly thereafter, claiming they were owed $5.
Id. at *1-3, *5, *8. After receiving assurances by Felix Williams, one of the home’s
residents, that he would look into the issue regarding the owed money, the Petitioner and
the co-defendant drove away but returned several minutes later with a third man, also a
co-defendant. Id. at *1-3, *5. At that point, Felix Williams gave the Petitioner and his
two co-defendants $5 to cover the debt for the marijuana. Id. at *1-3, *5, *8. After
receiving this money, the Petitioner’s group started to drive away and nearly ran over
someone from the victims’ group, who then threw a beer can inside the car the
Petitioner’s group was in. Id. at *2-3, *5, *8. When this occurred, the Petitioner’s group
stopped, got out of their vehicle, and engaged in a “fist fight” with several people from
the victims’ group. Id. After this fight, the Petitioner’s group made statements indicating
that they would be back. Id. at *2-3, *6.
The Petitioner, following his arrest, told police that after the fight, he and the co-
defendants returned home, where “guns started coming out” and one of his co-defendants
began “talking about going back around there.” Id. at *8. The Petitioner then drove with
his two co-defendants to a location on Helmwood Street. Id. The Petitioner’s group
jumped out of their car and fired their guns for a period of time before returning to the car
and driving away. Id. The Petitioner stated that he fired “six to eight shots” into the air
2
We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Presiding Judge John Everett Williams believes that referring to witnesses without
proper titles is disrespectful even though none is intended. He would prefer that every adult witness be
referred to as Mr. and Mrs. or by his or her proper title.
-2-
from his “Glock .45” during the incident. He said that one co-defendant fired two shots
from his shotgun and that while he was unsure what firearm the other co-defendant was
shooting, that the co-defendant fired shots for a longer period of time than the other two
men. Id.
From the Northmeade location, where Kimberly Jamerson was shot, officers
collected 9mm cartridge cases and 7.62x39mm cartridge cases. Id. at *9. At the
Helmwood location, where the Petitioner and his co-defendants fired their guns, officers
collected .30 carbine cartridge cases, .45 auto cartridge cases, .223 Remington caliber
cartridge cases, and .20 gauge shot shell cases. Id. Special Agent Steve Scott, a forensic
scientist with the Tennessee Bureau of Investigation, opined that while the 7.62x39mm
cartridges are a .30 caliber class bullet, the .30 caliber class bullet fragments recovered
from the Northmeade area were not consistent with the 7.62x39mm casings. Id. He also
said it would be very rare to see a 7.62x39mm cartridge loaded with the type of .30
caliber bullet found at the Northmeade location. Id. Agent Scott also opined that the .30
carbine cartridge cases were all fired from the same gun and that they were typically
loaded with the type of bullet collected during Jamerson’s autopsy. Id.
Following a jury trial, the Petitioner was convicted of one count of first degree
premeditated murder, twelve counts of attempted first degree murder, twelve counts of
aggravated assault, one count of reckless endangerment, and one count of employment of
a firearm during a dangerous felony. Id. at *10. At sentencing, the trial court merged the
aggravated assault convictions with the attempted murder convictions and imposed a
sentence of life imprisonment plus 308 years. Id.
On direct appeal, the Petitioner argued that the evidence was insufficient to sustain
his murder and attempted murder convictions and that the trial court erred in failing to
suppress his confession. Id. at *1. Thereafter, this court affirmed the trial court’s
judgments, and the Tennessee Supreme Court denied the Petitioner’s application for
permission to appeal. Id. at *18.
Post-Conviction. On May 14, 2014, the Petitioner filed a pro se petition for post-
conviction relief, alleging twenty-one ineffective assistance of counsel claims, six trial
court errors, and one claim of ineffective assistance of appellate counsel. As relevant to
the issues raised on appeal, the Petitioner specifically alleged in his pro se petition that
trial counsel provided ineffective assistance in failing to present a forensic expert to
introduce evidence of the gunshot residue tests and in failing to request a continuance to
ensure that Beatrice Vaulx testified at trial. Following the appointment of post-
conviction counsel, the Petitioner filed an amended petition, this time alleging, in
pertinent part, that trial counsel was ineffective in failing to investigate, interview and
subpoena material witnesses, including Beatrice Vaulx, to testify at trial and in failing to
-3-
subpoena or present testimony from Agent James Davis about the results from the
gunshot residue tests. Neither the pro se petition nor the amended petition explicitly
included an issue regarding trial counsel’s ineffectiveness in failing to request a
proximate cause of death jury instruction.
At the July 7, 2017 post-conviction hearing, post-conviction counsel asserted that
she had “issued multiple subpoenas for Beatrice Vaulx.” She and the court then had the
following discussion regarding her extensive attempts to locate Beatrice Vaulx:
[Post-Conviction Counsel]: [Beatrice Vaulx] is not to be found. I
have sent . . . her several letters, both of
which were returned to me. I attempted
to have her subpoenaed. They [came
back that she was] not to be found.
Additionally, I tried to add her on
Facebook. It was a last resort, but I did
find her on Facebook. She would not
accept my friend request. I don’t know if
it is because I’ve already sent her all
these letters, and she is not wanting to be
involved, and I believe that that was the
problem [trial counsel] had, as well. But,
if I can’t get her served, I can’t get her
here. And, if she is evading service, I
don’t know. . . .
....
The Court: For the record, Beatrice [V]aulx, that
[the Petitioner] continues to complain
about, . . . , that [the Petitioner] says, “I
want to see,” has been subpoenaed at
least twice by [post-conviction counsel
at] an address on Ladue . . . . [On] July
7, 2017, Shelby County Sheriff’s office
indicated that, after diligent search and
inquiry, she is not to be found in Shelby
County, Tennessee. [The deputy
a]ctually spoke to a person [who] lives at
that address [who s]aid she didn’t live
-4-
there, and had no idea as to where
[Beatrice Vaulx] lived.
That is not the first time a subpoena has
been issued for Ms. [V]aulx. A
subpoena was also issued for the setting
on November 10, 2016. And, after
diligent search and inquiry, she is not to
be found. [The deputy s]poke to a
person who identified herself as Ms.
[V]aulx’s mother. . . . [She] says that
[Ms. Vaulx] is out of the state due to a
sickness of a relative, and did not know
how to get in contact with Ms. [V]aulx.
[Post-conviction counsel] has sub-
poenaed [Ms. Vaulx] at least twice.
[The] Shelby County Sheriff’s office
cannot locate her.
Following this discussion, the Petitioner presented testimony from Agent James Davis
and trial counsel and testified in his own behalf.
Agent James Davis, a forensic scientist with the Tennessee Bureau of
Investigation, testified that prior to the Petitioner’s trial, he received and tested gunshot
residue tests from four different individuals—Cleotha Norwood, Mark Chambers, Nakia
Greer, and Felix Williams. For the tests from Norwood and Chambers, Agent Davis
found that although the “[e]lements indicative of gunshot residue were absent,” the
results could not eliminate the possibility that Norwood and Chambers could have fired,
handled, or were near a gun when it fired. For the test from Greer, Agent Davis found
that “[e]lements indicative of gunshot residue were inconclusive,” which meant that the
results could not eliminate the possibility that Greer could have fired, handled, or was
near a gun when it fired. Finally, for the test from Williams, Agent Davis found that
“[e]lements indicative of gunshot residue were present,” which meant that the results
indicated that Williams could have fired, handled, or was near a gun when it fired. Agent
Davis explained that washing hands with soap and water, the passage of time, and certain
other activities affected the presence of gunshot residue on an individual’s hands. He
confirmed that the post-conviction hearing was his first appearance in this case and that
he had never been subpoenaed by either party to testify at trial.
-5-
Agent Davis clarified that if gunshot residue was absent or if the gunshot residue
test was inconclusive, this did not mean that the individual did not fire a gun. He also
said that regardless of whether Norwood, Chambers, Greer, or Williams had gunshot
residue on their hands, this evidence did not tell him whether the Petitioner was guilty of
the crimes charged. Agent Davis acknowledged that he did not conduct any gunshot
residue tests on the Petitioner.
Trial counsel testified that he received a report from Officer Merritt indicating that
he had talked with Beatrice Vaulx, who said that on July 4, 2010, she heard several shots
being fired and when she looked outside her window, she saw an unidentified African-
American man being helped into a red vehicle parked in front of her residence. Vaulx
said that she observed this man placing a sawed-off shotgun into the backseat of the red
vehicle; however, she asserted that she would not be able to identify this man because it
was dark and she did not know him. Trial counsel said that after receiving this
information, he attempted to interview Beatrice Vaulx but was unable to find her. He
said that he was never able to locate Vaulx, even though he hired private investigators to
find and talk to her. He also said that he subpoenaed Vaulx for trial, but she failed to
appear. Trial counsel acknowledged that Vaulx’s testimony could have been beneficial
to the Petitioner at trial because it placed other shooters at the scene, which corroborated
evidence that there were two groups of shooters the night of the incident. He said his
defense theory at trial was that someone else fired the bullet that killed Kimberly
Jamerson.
Trial counsel said he attempted to get the results from the gunshot residue tests
introduced at trial through a witness other than Agent James Davis; however, the State
objected, and this objection was sustained. Trial counsel acknowledged that it would
have been a good idea to subpoena Agent Davis because it would have shed light on
whether the bullet that killed Kimberly Jamerson came from the Petitioner and his co-
defendants or Mark Chambers and his group. Trial counsel said that it was a difficult job
defending the Petitioner because the evidence in this case included the Petitioner’s
confession to police and the cartridge casings that were collected from the Helmwood
location, where the Petitioner and his co-defendants fired their guns.
Trial counsel said that while admitting the gunshot residue report would have been
helpful to the Petitioner’s defense, which is what he tried unsuccessfully to do at trial,
Agent Davis’s testimony about his gunshot residue report would not have been helpful.
He explained that Agent Davis’s testimony would not have benefitted the Petitioner
because Agent Davis would have stated, as he did at the post-conviction hearing, that a
person could fire a gun and not have the presence of gunshot residue and that a person
could have the presence of gunshot residue and never have fired a gun. Trial counsel said
that although he was aware, through discovery, of a phone conversation between Officer
-6-
Merritt and Beatrice Vaulx, he never received a statement from Vaulx herself because the
police were unsuccessful in obtaining such a statement.
At the conclusion of trial counsel’s testimony, the post-conviction court noted that
trial counsel had filed a motion to suppress, arguing that the police had illegally held the
Petitioner for forty-eight hours without probable cause. The court noted that trial counsel
had vigorously contested the admission of the Petitioner’s statement but that the court
ultimately denied the motion to suppress. The court also noted that when the Petitioner’s
statement acknowledging that he fired shots into the air was admitted, the State
proceeded under a theory of criminal responsibility.
The Petitioner testified that trial counsel erred in failing to call Beatrice Vaulx. He
also maintained that trial counsel failed to do everything he could have done to show that
Kimberly Jamerson was killed by friendly fire from the victims’ group during the
shootout. In addition, the Petitioner claimed that trial counsel pursued a self-defense
theory and requested a self-defense instruction at trial, even though he had instructed him
not to pursue this defense. He asserted, “[T]his is not a self-defense case. This is a case
where the proximate cause of death was in question.” At that point, the post-conviction
court stated for the record that it did not charge self-defense at the Petitioner’s trial
because it was not raised by the proof. When questioned about whether self-defense was
an appropriate defense in his case, the Petitioner replied:
By [trial counsel] alleging self-defense, it took my gun out of a
direction in which I [shot it]—I said I shot it into the air, but [the self-
defense theory] indicated to the jury—self-defense is constructively saying,
“Hey, I killed this person, but it was in self-defense,” which this is not one
of those cases. This is a case when no one could honestly say—neither
expert witness or anything could honestly say which direction this bullet
came from that killed this victim. No one is saying that they had this
weapon, so they don’t know which way it came from.
So we’re, like, what’s the proximate cause of death? And I felt like
the perfect defense could have been requesting proximate cause of death
jury instruction rather than self-defense.
At the conclusion of the post-conviction hearing, the court made several oral
findings. Regarding trial counsel’s failure to call Agent Davis, the court noted that Agent
Davis’s testimony “would not have made any difference at all” in the outcome of the
Petitioner’s trial because the gunshot residue tests “d[id] not indicate whether or not a
person fired a gun.” As to trial counsel’s failure to call Beatrice Vaulx, the court
recognized that although trial counsel subpoenaed Vaulx and requested that the
-7-
Petitioner’s trial be delayed so that Vaulx could testify after concluding her sleep study,
Vaulx never appeared at trial. The court also noted that despite post-conviction counsel’s
efforts to find Vaulx and subpoena her to testify at the post-conviction hearing, the
Petitioner had been unable to present Vaulx’s testimony at the post-conviction hearing.
The post-conviction court stated that “[t]here [was] absolutely nothing that is before the
Court that would indicate that [trial counsel] erred” or that trial counsel’s performance
“prejudic[ed]” the outcome of the Petitioner’s case.
On August 4, 2017, the post-conviction court entered its written order denying
relief. In it, the court determined that the Petitioner’s testimony at the hearing was not
credible. It noted that because the Petitioner had failed to present Beatrice Vaulx at the
post-conviction hearing, the Petitioner was asking the court “to engage in rank
speculation as to how any additional witnesses could have made a difference in the
outcome of this trial,” which it declined to do. The court held that Agent Davis’s
testimony about the results from the gunshot residue tests “would not have made a
difference in the outcome of the [p]etitioner’s trial” and that trial counsel had “made a
well-informed tactical decision not to present such useless testimony at trial.” In
addition, the court held that the issue regarding the proximate cause of death instruction
was waived because the Petitioner had failed to request this instruction at trial and that, in
any case, the Petitioner had “wholly failed to prove how he was prejudiced by the Court’s
properly instructing the jury on the law.” Ultimately, the post-conviction court concluded
that trial counsel “was not deficient in his performance” and that the Petitioner had
“failed to prove prejudice.” Following entry of this order, the Petitioner filed a timely
notice of appeal.3
ANALYSIS
I. Ineffective Assistance of Counsel. The Petitioner contends that trial counsel
provided ineffective assistance in failing to present Agent James Davis at trial, in failing
to present Beatrice Vaulx at trial, and in failing to request a jury instruction on proximate
cause of death. We conclude that the Petitioner is not entitled to relief on these claims.
Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence 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
3
Following entry of the order denying post-conviction relief, the court appointed a different
attorney to represent the Petitioner on appeal. However, after both parties filed appellate briefs, this court
struck the Petitioner’s brief, removed appellate post-conviction counsel, and appointed a new attorney,
referenced above, to file a supplemental brief in this case and to represent the Petitioner on appeal.
-8-
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 citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).
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. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(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). “Because a petitioner
must establish both prongs of the test, a failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim.” Id.
A. Failure to Present Agent Davis. The Petitioner argues that trial counsel was
ineffective in failing to present Agent Davis at trial to testify about the results of the
gunshot residue tests performed on Mark Chambers, Nakia Greer, and Felix Williams.
He claims that because the jury heard evidence that several 7.62x39mm casings were
found at the Northmeade location and because Agent Scott at trial could not rule out the
possibility that the victim had been killed from a bullet from one of these 7.62x39mm
casings, trial counsel should have presented Agent Davis to testify about the gunshot
residue tests because this evidence would have supported the defense theory that
-9-
someone else was responsible for killing Kimberly Jamerson. The State counters that the
post-conviction court properly denied relief on the basis that this evidence was “useless”
and “would not have made any difference at all.” Because trial counsel’s failure to
present Agent James Davis and the gunshot residue tests was neither deficient nor
prejudicial, the Petitioner is not entitled to relief on this issue.
At trial, the State pursued a theory of criminal responsibility, and the Petitioner
suggested that either Mark Chambers or Steven Chambers, who returned fire from the
Northmeade location, was responsible for killing Kimberly Jamerson. We agree with the
State that neither the gunshot residue tests nor the Agent Davis’s testimony about these
tests would have helped the Petitioner’s case because this evidence would not have
assisted the jury in determining who was responsible for killing Jamerson. Although the
jury heard substantial proof that Mark and Steven Chambers returned fire, it nevertheless
found that the Petitioner was responsible for Jamerson’s death, either because of his own
actions or because he was criminally responsible for the actions of his co-defendants. As
to the Petitioner’s claim that trial counsel was ineffective in failing “to present as much
physical evidence as possible supporting the theory that someone from the Northmeade
location fired the fatal shot,” we note that the jury heard evidence about the 7.62x39mm
casings found at the Northmeade location and still chose to convict the Petitioner of first
degree premediated murder. Agent Davis specifically testified that the presence of
gunshot residue on someone else’s hands would not have exonerated the Petitioner. We
agree with the State that neither the test results nor Agent Davis’s testimony would have
shown that Chambers, Greer, or Williams was responsible for killing Jamerson. Because
trial counsel’s failure to present Agent James Davis and the gunshot residue tests was
neither deficient nor prejudicial, the Petitioner is not entitled to relief on this claim.
B. Failure to Present Beatrice Vaulx. The Petitioner also asserts that trial
counsel provided ineffective assistance in failing to present testimony from Beatrice
Vaulx at trial. He claims that Vaulx would have testified that an unidentified person was
in possession of an assault rifle, not just a shotgun, and that this unidentified person had
fired the 7.62x39mm casings found at the Northmeade location and was responsible for
killing Kimberly Jamerson. The State counters that the Petitioner cannot establish
prejudice because he failed to present Beatrice Vaulx at the post-conviction hearing and
that, regardless of his failure to present her, the Petitioner has not shown how trial
counsel’s failure to present Vaulx at trial was deficient or prejudicial. We agree with the
State.
At the post-conviction hearing, trial counsel stated that after receiving Officer
Merritt’s report showing that he had talked to Beatrice Vaulx, he hired an investigator
and attempted to interview Vaulx about what she observed the night of the shooting, but
he was unable to find her. In addition, he said that although he subpoenaed Vaulx for
- 10 -
trial, she failed to appear. Trial counsel opined that Vaulx’s testimony could have been
beneficial to the Petitioner at trial because it placed another shooter at the scene and
suggested that someone, other than the Petitioner and his co-defendants, was responsible
for firing the bullet that killed Kimberly Jamerson.
During the post-conviction hearing, the court recalled trial counsel’s extensive
efforts to present Vaulx at trial:
[Trial counsel] did try to locate Ms. [V]aulx. Had an investigator on the
case. Did all he [could] in order to have her in court. Issued a subpoena
for her. She was not present. Could not be located by an investigator. Did
continue the case so they could try to locate this person overnight, also.
Could not get Ms. [V]aulx in court as Ms. [V]aulx . . . was out of the state,
and apparently [wa]s being evasive as to where she [wa]s, and the Shelby
County Sheriff’s office some . . . five years later still can’t locate Ms.
[V]aulx.”
The post-conviction court also noted, “[I]f [Ms. Vaulx] is not present in court under oath,
the truthfulness, or the validity, or the strength, or the worth of that testimony, case law
would indicate that I can’t speculate as to what benefit it would have done, because she
still, some six years later, is not present in court.”
Later, the post-conviction court noted that during the Petitioner’s trial, the
Petitioner’s other trial attorney sent an email, essentially asking the trial court to delay the
start of the trial so that the defense could get Beatrice Vaulx in court to testify. The email
stated that the defense’s investigator had informed them that Beatrice Vaulx was in a
sleep study and that she would be in court once she was released from the hospital. It
also said that Vaulx was a material witness to the Petitioner’s defense. The court
explained that after receiving this email, it held the Petitioner’s trial until approximately
10:30 a.m. in the hope that Vaulx would appear, though she never did. This email was
admitted as an exhibit to the post-conviction hearing. Still later, the post-conviction court
noted that trial counsel made an offer of proof at trial regarding Beatrice Vaulx’s
purported testimony by using Officer’s Merritt’s report about his phone conversation
with Vaulx.
Although the Petitioner asserts that trial counsel’s failure to present Vaulx’s
testimony at trial was ineffective, the Petitioner never presented Vaulx’s testimony at the
post-conviction hearing. This court has concluded that “[w]hen a petitioner contends that
trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing.” Black
- 11 -
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The presentation of the witness
at the post-conviction hearing is typically the only way for the petitioner to establish:
(a) a material witness existed and the witness could have been discovered
but for counsel’s neglect in his investigation of the case, (b) a known
witness was not interviewed, (c) the failure to discover or interview a
witness inured to his prejudice, or (d) the failure to have a known witness
present or call the witness to the stand resulted in the denial of critical
evidence which inured to the prejudice of the petitioner.
Id. Neither the post-conviction court nor this court may speculate on “what a witness’s
testimony might have been if introduced by defense counsel.” Id.
While the Petitioner acknowledges that Vaulx did not testify at the post-conviction
hearing, he cites Tavarus U. Williams v. State, No. 02C01-9711-CR00423, 1998 WL
742348, at *7 (Tenn. Crim. App. Oct. 23, 1998), for the proposition that this court has, on
occasion, made an exception to the general rule that witnesses must be presented at the
post-conviction hearing. The Petitioner asserts that Officer Merritt’s report shows that
Vaulx provided information about the unidentified shooter, that both trial counsel and
post-conviction counsel summarized the substance of Vaulx’s statement to police, and
that post-conviction counsel made several attempts to secure Vaulx’s presence at the
hearing. Consequently, the Petitioner urges this court to excuse his failure to present
Vaulx at the post-conviction hearing.
In Tavarus U. Williams, the Petitioner appealed the denial of post-conviction
relief, asserting that trial counsel failed to adequately investigate and assess his case and
failed to effectively present proof at trial. Id. at *1. At the post-conviction hearing, the
defense investigator testified that she found a key witness prior to trial that supported the
Petitioner’s claim of self-defense. Id. at *3. The morning of the Petitioner’s trial, the
investigator placed the name of this key witness and a summary of this witness’s
testimony in trial counsel’s box at the public defender’s office. Id. The investigator said
that this particular witness attended the Petitioner’s trial and was available to testify on
the Petitioner’s behalf, but trial counsel never called him to testify. Id. The investigator
did not recall the name of the key witness and did not have a copy of the summary of this
witness’s statement. Id. Trial counsel testified at the post-conviction hearing that he was
unware of this witness. Id. This court concluded that trial counsel was ineffective in
failing to present this key witness at trial, stating:
We recognize that this witness’ proposed testimony should have been
produced at the post-conviction hearing under the general rule announced
in Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990).
- 12 -
However, we think it is fundamentally unfair to hold this failure of proof
against the appellant and, therefore, find the Black rule inapplicable under
the facts of this case. To hold otherwise puts the appellant in a double bind
from which he cannot escape: his lawyer’s ineffectiveness condemns him
not only at trial but prevents him from later proving that ineffectiveness at
his post-conviction hearing.
The best evidence that the appellant had of the crucial testimony was
[the investigator], and he did produce that proof at the hearing.
Accordingly, because he produced independent proof of vital testimony that
would have been available at the hearing but for his trial lawyer’s
ineffectiveness (in never discovering the witness, not calling him and losing
all record of him), we hold that the appellant has established both prongs of
the Strickland test.
Id. at *7.
We find Tavarus U. Williams distinguishable from the instant case. Unlike trial
counsel’s complete failure to pursue the key witness in that case, trial counsel in
Petitioner’s case made extensive efforts to ensure that Vaulx testified at trial. Trial
counsel hired an investigator to locate her, subpoenaed her for trial, and successfully
obtained a continuance during the Petitioner’s trial in an attempt to secure her testimony.
Unfortunately, despite all these efforts, trial counsel was unable to present Vaulx’s
testimony at trial. In light of trial counsel’s conscientious and repeated efforts to obtain
Vaulx’s testimony, the Petitioner has failed to prove that trial counsel was deficient in
not presenting Vaulx’s testimony at trial.
In addition, the Petitioner has not shown that trial counsel’s failure to present
Vaulx prejudiced the outcome of his case. Vaulx’s statement to police shows that her
testimony would not have changed the outcome of the Petitioner’s trial. Vaulx told
police that after being awakened by the gunshots, she looked out her window and
observed an unidentified African-American man, whom she did not know and could not
identify, placing a sawed off shotgun in the backseat of a red vehicle. While Vaulx’s
statement might support the fact that there was another shooter the night of the incident, it
does not show that the unidentified man she observed fired the fatal shot at Kimberly
Jamerson. At trial, the jury heard substantial evidence suggesting that the shooters at the
Northmeade location, who were returning fire from the shots fired by the Petitioner and
his co-defendants, were responsible for Jamerson’s death. Because the jury heard
evidence suggesting that there were other shooters at the scene and because Vaulx never
saw the man responsible for killing Kimberly Jamerson, we conclude that Vaulx’s
testimony would not have changed the outcome of the Petitioner’s trial. Because trial
- 13 -
counsel’s failure to present Vaulx at trial was neither deficient nor prejudicial, the
Petitioner is not entitled to relief on this issue.
C. Failure to Request an Instruction on Proximate Cause of Death. The
Petitioner also asserts that trial counsel provided ineffective assistance in failing to
request an instruction on proximate cause of death. See 7 Tenn. Prac. Pattern Jury Instr.
T.P.I.—Crim. 42.14. He asserts that trial counsel’s failure to request this instruction was
both deficient and prejudicial because had it been given, the jury would have had
reasonable doubt as to whether someone other than the Petitioner or his co-defendants
caused Kimberly Jamerson’s death, especially given that 7.62x39mm casings were found
near the victim and that Agent Scott could not rule out the possibility that the fatal bullet
came from one of these casings. While acknowledging that he failed to raise this issue in
his pro se or amended post-conviction petition and that post-conviction counsel never
questioned trial counsel about this issue at the post-conviction hearing, the Petitioner
nevertheless asserts that he testified, without objection from the State, that trial counsel
should have requested an instruction on proximate cause of death and that the post-
conviction court ruled on this particular issue. Accordingly, the Petitioner claims that he
properly preserved this issue for appellate review. See Marlon Yarbro v. State, No.
W2017-00125-CCA-R3-PC, 2018 WL 4441364, at *7 (Tenn. Crim. App. Sept. 17, 2018)
(concluding that the State waived its claim of procedural default when it failed to object
to an issue raised by the petitioner at the post-conviction hearing that was not explicitly
included in his petition for post-conviction relief). The State responds that the Petitioner
has waived this issue by failing to raise it in his petition or amended petition and that
waiver notwithstanding, the post-conviction court properly denied relief because trial
counsel was not ineffective in failing to request this instruction. See T.C.A. §§ 40-30-
104(d), (e), -106(d); Tenn. Sup. Ct. R. 28, § 8(D)(4). We conclude that although this
issue is reviewable on its merits, the Petitioner is not entitled to post-conviction relief.
While the Petitioner admits that he did not explicitly include in his post-conviction
petitions a claim of ineffective assistance of counsel based upon trial counsel’s failure to
request the proximate cause of death instruction, we note that the Petitioner did generally
claim that he received ineffective assistance of trial counsel. See Marlon Yarbro, 2018
WL 4441364, at *6. At the post-conviction hearing, the Petitioner asserted, “[T]his is not
a self-defense case. This is a case where the proximate cause of death was in question.”
Then, when questioned about whether self-defense was an appropriate defense in his
case, the Petitioner replied:
By [trial counsel] alleging self-defense, it took my gun out of a
direction in which I [shot it]—I said I shot it into the air, but [the self-
defense theory] indicated to the jury—self-defense is constructively saying,
“Hey, I killed this person, but it was in self-defense,” which this is not one
- 14 -
of those cases. This is a case when no one could honestly say—neither
expert witness or anything could honestly say which direction this bullet
came from that killed this victim. No one is saying that they had this
weapon, so they don’t know which way it came from.
So we’re, like, what’s the proximate cause of death? And I felt like
the perfect defense could have been requesting proximate cause of death
jury instruction rather than self-defense.
The record shows that neither post-conviction counsel nor the State asked the Petitioner
or trial counsel any specific questions about trial counsel’s failure to request the
proximate cause of death instruction. However, when the Petitioner raised this issue
during his testimony at the post-conviction hearing, the State never objected on the basis
that the Petitioner failed to include this issue in any of his post-conviction petitions. See
Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not addressed in the post-
conviction court will generally not be addressed on appeal.”); Cauthern v. State, 145
S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n issue raised for the first time on appeal
is waived.”); see also Steven Tyler Nabi v. State, No. M2017-00041-CCA-R3-PC, 2018
WL 1721869, at *2 (Tenn. Crim. App. Apr. 9, 2018) (concluding that an issue was
reviewable on its merits when the Petitioner raised the issue at the post-conviction
hearing and the State failed to object that the issue was waived on the basis it had not
been included in the pro se or amended petition). Had the State objected, the Petitioner
could have amended his petition, which the Post-Conviction Procedure Act clearly
contemplates and generously allows. See Tenn. Sup. Ct. R. 28, § 8(D)(5). For all these
reasons, we conclude that the Petitioner did not waive his issue regarding trial counsel’s
failure to request the proximate cause of death jury instruction.
Although this issue is reviewable on its merits, we nevertheless conclude that the
Petitioner has failed to establish that trial counsel was ineffective in failing to request this
instruction. We note that the proximate cause of death instruction is given when there is
evidence that the victim’s death was caused by an independent, intervening act or
omission that the defendant could not reasonably have anticipated. The “cause of death”
instruction at issue states, in pertinent part, the following:
Before the defendant can be convicted of any degree of homicide,
the State must have proven beyond a reasonable doubt that the death of the
deceased was proximately caused by the criminal conduct of the defendant
[, by the conduct of another for whom the defendant is criminally
responsible, or both]. The proximate cause of a death is that cause which,
in natural and continuous sequence, unbroken by any independent
- 15 -
intervening cause, produces the death and without which the death would
not have occurred.
The defendant’s conduct need not be the sole or immediate cause of
death. The acts [or omissions] of two or more persons may work
concurrently to proximately cause the death, and in such a case, each of the
participating acts [or omissions] is regarded as a proximate cause. It is not
a defense that the negligent conduct of the deceased may also have been a
proximate cause of the death.
However, it is a defense to homicide if the proof shows that the
death was caused by an independent intervening act [or omission] of the
deceased or another which the defendant, in the exercise of ordinary care,
could not reasonably have anticipated as likely to happen. However, if, in
the exercise of ordinary care, the defendant should reasonably have
anticipated the intervening cause, that cause does not supersede the
defendant’s original conduct, and the defendant’s conduct is considered the
proximate cause of death. It is not necessary that the sequence of events or
the particular injury be foreseeable. It is only necessary that the death fall
within the general field of danger which the defendant should have
reasonably anticipated.
....
If you find that the defendant’s acts, if any, did not unlawfully cause
or contribute to the death of the deceased, or if you have a reasonable doubt
as to this proposition, then you must find [him][her] not guilty.
7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.14 (footnotes omitted).
Here, the proof showed that either the Petitioner or his co-defendants fired the
fatal bullet or someone from the Northmeade location fired the fatal bullet, but there was
no evidence that Kimberly Jamerson’s death was caused by an independent, intervening
act or omission that the responsible party could not reasonably have anticipated. Because
pattern jury instruction 42.14 was clearly inapplicable to the evidence presented at the
Petitioner’s trial, we conclude that the Petitioner has failed to show that trial counsel was
deficient in failing to request this instruction or that such an instruction would have
changed the outcome of the Petitioner’s trial. Accordingly, the Petitioner is not entitled
to relief on this issue.
- 16 -
II. Second Post-Conviction Hearing. Lastly, the Petitioner asserts that even if
this court determines that trial counsel did not provide ineffective assistance at trial, he is
nevertheless entitled to a second post-conviction hearing based upon post-conviction
counsel’s ineffectiveness. He claims that post-conviction counsel failed to adequately
present numerous claims at the post-conviction hearing4 and failed to allege in the
amended petition that trial counsel was ineffective in not arguing that the police did not
“scrupulously honor” the Petitioner’s invocation of his right to remain silent during his
interview. While acknowledging that petitioners are not entitled to effective post-
conviction representation and that a post-conviction counsel’s failure to follow the
guidelines in Supreme Court Rule 28 does not warrant a second post-conviction petition,
he claims that he is entitled to a second post-conviction hearing pursuant to footnote 10 in
Thaddeus Johnson because post-conviction counsel failed to “provide him with the
limited amount of due process that is required[.]” See Thaddeus Johnson v. State, No.
W2014-00053-CCA-R3-PC, 2014 WL 7401989, at *9 n.10 (Tenn. Crim. App. Dec. 29,
2014), perm. app. denied (Tenn. May 18, 2015). The State counters that the Petitioner is
4
Specifically, the Petitioner claims that post-conviction counsel failed to question trial counsel
about the following claims he raised in his pro se petition:
(1) Trial counsel was ineffective for failing to request that fingerprint testing be
conducted on the 7.62x.39 casings found near the victim’s body at 2706 Northmeade.
(2) Trial counsel was ineffective for failing to retain an independent ballistics expert to
assist the defense.
(3) Trial counsel was ineffective for failing to investigate and request the results of the
victim’s gunshot residue tests.
(4) Trial counsel was ineffective for failing to interview Kristie Norman in preparation
for trial.
(5) Trial counsel was ineffective for failing to call Nakia Greer as a witness at trial.
(6) Trial counsel was ineffective for failing to call Lt. McCollum as a witness at trial.
(7) Trial counsel was ineffective for failing to request a continuance when key witness
Beatrice [V]aulx did not show up at trial.
(8) Trial counsel was ineffective for failing to retain an expert in the area of bullet
trajectory.
The Petitioner also asserts that post-conviction counsel failed to “personally knock on doors in an effort to
find Ms. [V]aulx, failed to “ask[] trial counsel why he did not request a jury instruction on proximate
cause of death,” “failed to present Kristie Norman, Nakia Greer, and Lieutenant McCollum as witnesses
at the post-conviction hearing,” and “failed to make a closing argument at the close of proof at the post-
conviction hearing.” Lastly, the Petitioner criticizes post-conviction counsel’s failure to call appellate
counsel at the post-conviction hearing so she could question him about his ineffectiveness in “failing to
raise ‘essential issues’ that were raised in the motion for new trial” and in “arguing on appeal that
Petitioner was acting in self-defense at the time he fired his shots.”
- 17 -
not entitled to a second post-conviction hearing because post-conviction counsel followed
the requirements of Tennessee Supreme Court Rule 28. We conclude that because post-
conviction counsel complied with the requirements of Rule 28 and because any issues not
raised at the initial post-conviction hearing are waived, the Petitioner is not entitled to
relief.
In considering this issue, we recognize that a petitioner is only entitled to limited
due process rights in the post-conviction setting. The United States Supreme Court has
held that the protections inherent in the Due Process Clause are less stringent in a state
post-conviction proceeding than they are at trial or on direct review. Pennsylvania v.
Finley, 481 U.S. 551, 555-57 (1987). Similarly, the Tennessee Supreme Court held that
“the opportunity to collaterally attack constitutional violations occurring during the
conviction process is not a fundamental right entitled to heightened due process
protection.” Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992). “All that due process
requires in the post-conviction setting is that the defendant have ‘the opportunity to be
heard at a meaningful time and in a meaningful manner.” Stokes v. State, 146 S.W.3d
56, 61 (Tenn. 2004) (quoting House v. State, 911 S.W.2d 705, 711 (Tenn. 1995)). In
other words, a “full and fair hearing” merely requires “the opportunity to present proof
and argument on the petition for post-conviction relief.” House, 911 S.W.2d at 714.
As acknowledged by the Petitioner, there is no constitutional right to effective
assistance of counsel in a post-conviction proceeding. Frazier, 303 S.W.3d at 680;
Stokes, 146 S.W.3d at 60; House, 911 S.W.2d at 712. There is a statutory right to post-
conviction counsel. T.C.A. § 40-30-107(b)(1); Frazier, 303 S.W.3d at 680. The rationale
for this statutory right “is to afford a petitioner the full and fair consideration of all
possible grounds for relief.” Frazier, 303 S.W.3d at 680. “This statutory right does not,
however, serve as a basis for relief on a claim of ineffective assistance of counsel in a
post-conviction proceeding and does not include ‘the full panoply of procedural
protection that the Constitution requires be given to defendants who are in a
fundamentally different position—at trial and on first appeal as of right.”’ Id. (quoting
House, 911 S.W.2d at 712).
Tennessee Supreme Court Rule 28 outlines the obligations and responsibilities of
post-conviction counsel. Specifically, post-conviction counsel “shall be required to
review the pro se petition, file an amended petition asserting other claims which
petitioner arguably has or a written notice that no amended petition will be filed,
interview relevant witnesses, including petitioner and prior counsel, and diligently
investigate and present all reasonable claims.” Tenn. Sup. Ct. R. 28, § 6(C)(2). In
addition, post-conviction counsel must file a certificate of counsel certifying that he or
she has “thoroughly investigated the possible constitutional violations alleged by
petitioner . . . and any other ground that petitioner may have for relief,” has “discussed
- 18 -
other possible constitutional grounds with petitioner,” has “raised all non-frivolous
constitutional grounds warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law which petitioner has,” is “aware that
any ground not raised shall be forever barred . . . and ha[s] explained this to petitioner.”
Tenn. Sup. Ct. R. 28 § 6(C)(3), app. C. While these rules do establish a minimum
standard of service to which post-conviction counsel are held, they do not provide a basis
for relief from a conviction or sentence. Frazier, 303 S.W.3d at 681; David E. Breezee v.
State, No. W2015-02251-CCA-R3-PC, 2017 WL 1907738, at *7 (Tenn. Crim. App. May
9, 2017), perm. app. denied (Tenn. Sept. 22, 2017); Charles Edgar Ledford v. State, No.
E2016-00208-CCA-R3-PC, 2017 WL 837705, at *6 (Tenn. Crim. App. Mar. 3, 2017),
perm. app. denied (Tenn. June 7, 2017); David Edward Niles v. State, No. M2014-00147-
CCA-R3-PC, 2015 WL 3453946, at *7 (Tenn. Crim. App. June 1, 2015), perm. app.
denied (Tenn. Sept. 17, 2015); Thaddeus Johnson, 2014 WL 7401989, at *9.
Moreover, even if we were inclined to agree with the Petitioner, a post-conviction
counsel’s Rule 28 violations do not warrant a second post-conviction hearing. David E.
Breezee, 2017 WL 1907738, at *7 (“[T]his court has repeatedly held that post-conviction
counsel’s Rule 28 violations do not warrant a second post-conviction hearing.”); Charles
Edgar Ledford, 2017 WL 837705, at *7 (“This Court has repeatedly held that violations
of Rule 28 by post-conviction counsel alone do not warrant a second post-conviction
hearing.”); Demarcus Keyon Cole v. State, No. W2015-01901-CCA-R3-PC, 2016 WL
2859196, at *11 (Tenn. Crim. App. May 11, 2016) (“This court has repeatedly held that
violations of Rule 28 by post-conviction counsel do not afford the remedial right of a
second post-conviction hearing.”), perm. app. denied (Tenn. Sept. 26, 2016); David
Edward Niles, 2015 WL 3453946, at *7 (“[T]his Court has repeatedly held that violations
of Rule 28 by post-conviction counsel do not warrant a second post-conviction
hearing.”); Thaddeus Johnson, 2014 WL 7401989, at *9 (“[T]his Court has repeatedly
held that violations of Rule 28 by post-conviction counsel do not warrant a second post-
conviction hearing.”).
Despite the extensive authority holding that violations of Rule 28 do not warrant a
second post-conviction hearing, the Petitioner claims that he is entitled to relief pursuant
to footnote 10 in Thaddeus Johnson, which states:
We . . . acknowledge that there could conceivably be a situation where
counsel’s egregious violation(s) of Rule 28 might impermissibly violate the
limited due process requirements for post-conviction proceedings so as to
warrant a second post-conviction hearing; however, we reaffirm that there
is no legal authority for the proposition that a Rule 28 violation, in itself,
justifies another bite at the post-conviction apple.
- 19 -
Id. at *9 n.10 (citation omitted). Although he relies on Thaddeus Johnson, the Petitioner
fails to explain with any particularity how post-conviction counsel failed to follow the
guidelines of Rule 28, choosing instead to claim that counsel failed to adequately present
a laundry list of post-conviction claims. Additionally and most importantly, the
Petitioner has failed to show how post-conviction counsel committed “egregious
violation(s) of Rule 28.” Id.
In this case, the Petitioner filed his pro se petition, and post-conviction counsel
was appointed. Thereafter, the record shows that post-conviction counsel reviewed the
pro se petition, diligently investigated the Petitioner’s case, interviewed the relevant
witnesses who could be found after an exhaustive search, filed an amended petition in
which she developed several of the claims outlined in the Petitioner’s pro se petition and
incorporated the claims raised in the pro se petition, and then competently presented all
reasonable claims at the post-conviction hearing. See Tenn. Sup.Ct. R. 28, § 6(C)(2).
Post-conviction counsel also filed a certificate of counsel, certifying that she had
“thoroughly investigated the possible constitutional violations,” “raised all non-frivolous
constitutional grounds,” and made the Petitioner “aware that any ground not raised shall
be forever barred.” See Tenn. Sup.Ct. R. 28 § 6(C)(3), app. C. At the post-conviction
hearing, post-conviction counsel presented testimony from Agent James Davis, trial
counsel, and the Petitioner. While post-conviction counsel did not address every one of
the Petitioner’s claims, the transcript from the post-conviction hearing shows that she
addressed the overwhelming majority of issues raised in his pro se petition. Moreover,
the record is clear that during his post-conviction hearing, the Petitioner “was afforded
every opportunity to present evidence and argument” on all of his post-conviction claims.
See House, 911 S.W.2d at 711.
Notwithstanding the fact that he received a full and fair hearing, the Petitioner
claims that he is entitled to the appointment of new post-conviction counsel, the
opportunity to amend his post-conviction petition, and the chance to have a second post-
conviction hearing on these additional grounds. However, the Petitioner fails to
recognize that any issues not raised at his initial post-conviction hearing are waived. As
Tennessee Code Annotated section 40-30-106(g) explains,
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:
(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
- 20 -
(2) The failure to present the ground was the result of state action in
violation of the federal or state constitution.
Additionally, Code section 40-30-110(f) provides, “There is a rebuttable presumption that
a ground for relief not raised before a court of competent jurisdiction in which the ground
could have been presented is waived.”
Because there is no constitutional or statutory right to effective assistance of
counsel in post-conviction proceedings, the Petitioner’s claim that counsel was
ineffective at a prior post-conviction proceeding is insufficient to rebut the presumption
of waiver. House, 911 S.W.2d at 706, 712. In other words, the Petitioner’s claim of
ineffective assistance of post-conviction counsel “does not establish a legal excuse for
failure to raise the issues in the initial proceeding.” Id. at 712. Even if we were to
appoint new post-conviction counsel and allow the Petitioner to have a second post-
conviction hearing, the Petitioner has waived any claims not presented at the initial post-
conviction hearing. This is because “[w]aiver in the post-conviction context is to be
determined by an objective standard under which a petitioner is bound by the action or
inaction of his attorney.” Id. at 714 (footnote omitted).
We conclude that the Petitioner has failed to show that he is entitled to a second
post-conviction hearing based on any deprivation of his due process rights. We reiterate
that “[a]ll that due process requires in the post-conviction setting is that the defendant
have ‘the opportunity to be heard at a meaningful time and in a meaningful manner.”
Stokes, 146 S.W.3d at 61 (quoting House, 911 S.W.2d at 711). Because the Petitioner
received a full and fair hearing on his post-conviction petition with the assistance of post-
conviction counsel, which is all that the law requires, he is not entitled to relief. See
Charles Edgar Ledford, 2017 WL 837705, at *7.
CONCLUSION
Based upon the aforementioned authorities and reasoning, we affirm the judgment
of the post-conviction court.
________________________________
CAMILLE R. MCMULLEN, JUDGE
- 21 -