Narrell Pierce v. State of Tennessee ( 2018 )

11/05/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 21, 2018
NARRELL PIERCE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2011-B-1707 Steve R. Dozier, Judge
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No. M2017-01268-CCA-R3-PC
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The Petitioner, Narrell Pierce, filed for post-conviction relief from his convictions of
attempted aggravated robbery, attempted second degree murder, employment of a firearm
during the commission of a dangerous felony, and unlawful possession of a handgun by a
felon. The Petitioner alleged that his trial counsel was ineffective by (1) failing to
challenge the sufficiency of the evidence supporting his attempted aggravated robbery
conviction, (2) failing to object to his co-defendant’s testimony, (3) depriving the
Petitioner of his constitutional right to testify, and (4) failing to present a ballistics expert.
After a hearing, the post-conviction court denied relief, and the Petitioner appeals. Upon
review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and CAMILLE R. MCMULLEN, JJ., joined.
Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Narrell Pierce.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and J. Wesley King,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
The Petitioner was charged with attempted aggravated robbery, especially
aggravated kidnapping, attempted first degree murder, employing a firearm during the
commission of or attempt to commit a dangerous felony, possession of a handgun by a
convicted felon, and theft of property based on his role in a shooting that occurred at the
Lewis Street Market in Nashville. State v. Narrell Christopher Pierce, No. M2014-
00120-CCA-R3-CD, 2015 WL 2102003, at *1 (Tenn. Crim. App. at Nashville, May 5,
2015). Following a motion filed by the State prior to trial, the trial court dismissed the
especially aggravated kidnapping charge and the theft of property charge. Id.
On direct appeal, this court summarized the facts as follows:
At the suppression hearings, . . . Anthony Wilfert
testified that in March 2011, he was a detective with the
Metropolitan Nashville Police Department (“NPD”). On
March 15, 2011, he responded to a report of a robbery and
shootout at the Lewis Street Market. Detective Wilfert met
with the victim, Kamil Alakabi, who described the two
suspects as African American males. Detective Wilfert also
viewed the Lewis Street Market’s surveillance video and
located shell casings throughout the building.
During his investigation, Detective Wilfert developed
the [Petitioner] as a possible suspect and compiled a
photographic lineup that included the [Petitioner]. . . . The
victim looked at the lineup for several minutes, . . . then
identified photograph number 3, which depicted the
[Petitioner], and stated, “Number 3 looks like him; all others
don’t resemble him.” Detective Wilfert told the victim that
he needed to be “100 percent sure” that he identified the
correct person, and the victim responded, “That’s him, none
of the others were him.”
....
Kamil Alakabi, the owner and operator of Lewis Street
Market, testified that on March 15, 2011, two men attempted
to rob his store at gunpoint. The victim recalled that at
approximately 9:00 p.m. that evening, he was organizing the
shelves in his store with one of his employees when two men,
later determined to be the [Petitioner] and Travis Bowman,
entered the store. They walked directly towards the victim,
and the [Petitioner] put a gun in his face. The victim grabbed
the gun, and the [Petitioner] punched him and knocked him to
the ground. The two men then approached the other
employee, and the victim retrieved his own gun. The
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[Petitioner] fired several shots at the victim, and the victim
returned fire. The two men then ran out of the store and fled
the scene. The victim immediately called the police to report
the incident. He described the suspects and viewed the
surveillance video with the responding officers.
The victim recalled being shown a photographic lineup
by police and identifying the [Petitioner] as the gunman. He
said that he told Detective Wilfert that he was “50 percent
sure that’s him.” . . . The victim attended a subsequent court
hearing and identified the [Petitioner] as the man who shot at
him and attempted to rob him. He again identified the
[Petitioner] as the perpetrator during the suppression hearing.
On cross-examination, the victim agreed that he had
never seen the [Petitioner] prior to the robbery. He also
agreed that the gunman wore sunglasses and a hat, making it
harder to see him, and that the gunman pulled out his gun
very quickly and surprised the victim. He recalled that the
entire incident happened very quickly and was over within
one or two minutes. The victim reiterated that he told
Detective Wilfert he was “50 percent certain” that the
photograph he selected depicted the gunman. He agreed that
seeing the surveillance video and subsequent photographs
made him more certain that he had selected the man who shot
at him.
....
The victim’s testimony at trial was largely consistent
with his testimony at the suppression hearing. He clarified
that after being knocked to the ground by the [Petitioner], the
[Petitioner] and Mr. Bowman approached the victim’s
employee and held a gun to his face. While the perpetrators
focused their attention on the other employee, the victim
retrieved a nine millimeter handgun from his pocket. Before
he could fire any shots, however, the magazine fell out of his
gun, and the [Petitioner] began firing his own weapon at the
victim. The victim retrieved the magazine and returned fire.
The [Petitioner] then continued to shoot at the victim while he
and Mr. Bowman fled the store. After the perpetrators fled
the store, the victim called 911. Police responded to the
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scene, interviewed the victim, and collected evidence at the
store. During their investigation of the scene, officers
collected one 40–caliber cartridge case. Two more 40–caliber
shells were later discovered by the victim and collected by
NPD officers. The victim also provided police with the
surveillance video that captured the incident and turned over
his gun for analysis. Several days after the shooting, the
victim identified the [Petitioner] in a photographic lineup as
the gunman who attempted to rob his store.
Detective Wilfert’s testimony was likewise consistent
with his testimony at the suppression hearing. As the lead
detective assigned to the case, he met with the responding
officers and interviewed the victims. The police department’s
surveillance unit retrieved the surveillance video from the
victim’s store and released it to local news stations. Several
days later, Detective Wilfert received a tip that led him to
develop the [Petitioner] as a suspect. He compiled a
photographic lineup and showed it to the victim, who
identified the [Petitioner] as the gunman. Detective Wilfert
obtained an arrest warrant for the [Petitioner], and the
[Petitioner] was arrested the following day, March 18, 2011,
at his mother’s residence as he exited his vehicle. Inside of
the vehicle, police discovered a handgun under the driver’s
seat. A fingerprint lifted from the gun matched the
[Petitioner], and forensic analysis by the Tennessee Bureau of
Investigation revealed that this handgun fired the .40 caliber
casings recovered from the Lewis Street Market.
After the [Petitioner]’s arrest, police seized the
[Petitioner’s] vehicle and cellular phone, and Detective
Wilfert obtained a search warrant for both pieces of property.
Upon searching the [Petitioner]’s car, police officers
discovered a blue baseball cap, two pairs of sunglasses, and a
magazine for a Glock .40 caliber pistol. A series of text
messages were recovered from the [Petitioner]’s cellular
phone and read into evidence. These messages discussed the
[Petitioner] taking a “major loss” on his money and having a
“near-death” experience as a result of a “shootout.”
Travis Bowman, the [Petitioner]’s cousin, testified that
he was the other individual that entered the Lewis Street
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Market with the [Petitioner] on March 15, 2011. Earlier that
evening, they met two other men at an apartment complex in
east Nashville, and all four left together in a white Pontiac.
Mr. Bowman recalled that during the car ride, the [Petitioner]
and the driver of the Pontiac discussed “some money” and
said they “needed money.” Mr. Bowman claimed, however,
that he did not know the [Petitioner] intended to rob the
Lewis Street Market. The driver pulled into Lewis Street
Market, and the [Petitioner] exited the car and walked
towards the store. While looking for his money clip, Mr.
Bowman found a handgun on the floorboard of the car and
asked the other two passengers whether they had dropped
anything. The driver told Mr. Bowman, “[N]o, that’s for you.
. . . [Y]ou need to get out and help your cousin.”
Mr. Bowman exited the vehicle and told the
[Petitioner] to “let this go,” but the [Petitioner] responded, “I
got this,” and entered the store. Mr. Bowman followed the
[Petitioner] into the store. The [Petitioner] approached the
owner and “wrestled [him] to the ground, pulled out the gun,
and hit him a few times.” As the [Petitioner] approached a
second employee in the store, the owner retrieved a gun and
“shots began.” Mr. Bowman testified that the [Petitioner]
shot his weapon first, and the owner returned fire. Mr.
Bowman did not fire his gun in the store. The [Petitioner]
and Mr. Bowman fled the store and left the scene in the white
Pontiac. Mr. Bowman put the gun back on the floorboard of
the car and was dropped off at his home. The [Petitioner] told
him to “lay low, . . . don’t say anything, . . . everything will
be alright.” Several days later, Mr. Bowman was contacted
by police regarding his involvement in the incident.
On cross-examination, Mr. Bowman acknowledged
that he had been indicted on a number of counts related to the
attempted robbery and, if convicted, would face a lengthy
prison sentence. He agreed that he hoped his cooperation
with authorities would help him receive a better sentence but
denied that he had received any promises in exchange for his
testimony. He conceded that after the attempted robbery, he
did not contact the police and lied to his family about his
involvement. He maintained that he did not know the
[Petitioner] intended to rob Lewis Street Market until they
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pulled into the parking lot and agreed that the [Petitioner]
never talked about hurting anyone prior to entering the store.
The State also introduced into evidence recorded
phone calls that the [Petitioner] made from the county jail and
played them for the jury.
Id. at *2-5 (footnotes omitted).
The Petitioner filed a timely pro se petition for post-conviction relief, counsel was
appointed, and an amended petition was filed. The Petitioner alleged, in pertinent part,1
that trial counsel was ineffective by (1) failing to challenge the sufficiency of the
evidence supporting his attempted aggravated robbery conviction in the motion for new
trial; (2) failing to object when co-defendant Bowman testified that a robbery probably
would have occurred if the shooting had not begun; (3) depriving the Petitioner of his
constitutional right to testify at trial by advising the Petitioner that counsel would not
allow the Petitioner to testify untruthfully; and (4) failing to present a ballistics expert to
corroborate the Petitioner’s contention that he did not aim at the owner of the store but
fired his gun at random to escape.
At the post-conviction hearing, the Petitioner testified that trial counsel began
representing him in general sessions court and continued to represent him throughout his
trial and direct appeal. The Petitioner said that he was confined in prison in Hardeman
County prior to trial. Trial counsel did not visit the Petitioner in prison; nevertheless,
they had sufficient communication about the case.
The Petitioner asserted that when he entered the store, he did not demand money
from the owner or the employee; accordingly, the State did not adduce proof of a
robbery. The Petitioner acknowledged Bowman’s testimony that if the shooting had not
started, a robbery probably would have occurred; however, the Petitioner argued that
counsel should have objected to Bowman’s testimony because it was inconsistent with
his earlier testimony and because it was speculative. The Petitioner also complained that
trial counsel failed to challenge the sufficiency of the evidence supporting the attempted
aggravated robbery conviction in the motion for new trial, which failed to preserve the
issue for appeal.
The Petitioner said that he and trial counsel discussed the events at the store “to
come up with a scenario” but that trial counsel refused to “put any scenario in there.”
1
The Petitioner raised additional issues in the petitions that have been abandoned on appeal. We
have limited our summary of the facts adduced at the post-conviction hearing to those pertinent to the
Petitioner’s appellate issues.
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Trial counsel advised that he did not want the Petitioner to testify if the Petitioner
intended to lie. Trial counsel further advised that if the Petitioner chose to testify
untruthfully, trial counsel would not ask the Petitioner questions while he was on the
stand, and the jury would know the Petitioner was lying. The Petitioner said that trial
counsel could not have known whether the Petitioner was lying because the Petitioner
never told trial counsel his version of events. The Petitioner insisted that he wanted to
testify in order to tell the jury that he “wasn’t trying to kill nobody.” He acknowledged,
however, that he was convicted of the lesser-included offense of attempted second degree
murder. The Petitioner noted that trial counsel told him the State could use his
aggravated robbery convictions to impeach his credibility if he testified.
The Petitioner complained that trial counsel did not do any investigation of the
ballistics, noting that one bullet the Petitioner fired did not land near the owner, which
showed the Petitioner was not shooting at the owner. The Petitioner maintained that he
fired three shots just to get out of the store.
On cross-examination, the Petitioner said that he was incarcerated prior to trial
because he violated his probation on four robbery convictions and three attempted
robbery convictions. Before trial, the Petitioner and trial counsel “had two big
arguments” about how the case would proceed and trial counsel’s failure to prepare the
Petitioner to testify. Therefore, the Petitioner chose to represent himself during part of
voir dire; however, before voir dire ended, the Petitioner decided to have trial counsel
represent him.
The State repeatedly asked the Petitioner what his trial testimony would have
been, but the Petitioner was reluctant to reveal his prospective trial testimony. He
eventually stated that before entering the store, he thought only one person was inside,
but, after entering the store, he discovered two people were inside. Upon being pressed
for further details, the Petitioner responded, “That it is [sic] whole thing I just said, we
never prepared to [sic] what I was going to say. . . . We never prepared it.”
The Petitioner hesitated to give further details about the day of the offense,
explaining that he should discuss the issue with his lawyer because he did not want to
compromise his “5th Amendment right[s]” in the event he was granted a new trial.
However, after the post-conviction court advised the Petitioner that it would not be able
to evaluate whether the Petitioner suffered prejudice if he refused to reveal how he would
have testified at trial, the Petitioner conceded that he entered the store to rob “an Iranian
dude . . . for some dope” but maintained that he did not intend to rob the store. He said
that he entered the store before Bowman, that he and Bowman had their guns out when
they entered the store, and that the owner of the store was the first person to fire a gun.
The Petitioner said, “[M]y main thing about testifying is because I was charged [with]
attempted first-degree murder and I never tried to kill nobody.”
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The Petitioner acknowledged that Bowman testified that if shooting had not
started, a robbery would have occurred. The Petitioner further acknowledged that
Bowman testified that he overheard the Petitioner having a telephone conversation during
the drive to the store, during which the Petitioner stated he needed money.
Trial counsel testified that he had been with the public defender’s office for over
twenty years and that he practiced only criminal law. He represented the Petitioner
throughout trial and on direct appeal except for the brief time he served as “elbow
counsel” while the Petitioner represented himself. Trial counsel asserted that he was
prepared to try the Petitioner’s case.
Trial counsel and the Petitioner discussed the charges, potential trial strategies,
problems with the case, and the motions that could be filed. Trial counsel recalled that
the State’s proof was that the owner of the store had identified the Petitioner during a
lineup; the police had a surveillance video of the crime; Bowman would testify against
the Petitioner; the Petitioner had made incriminating telephone calls from jail; and a gun
was found which matched ballistics from the scene.
Trial counsel explained that the defense had two trial strategies: (1) that the owner
of the store’s identification of the Petitioner was not certain and (2) that the State failed to
adduce proof of an attempted premeditated first degree murder. Because the State’s
proof of identification was strong, trial counsel thought an “elements-type defense” was
likely to be more successful. The Petitioner was more interested in establishing that he
was not the perpetrator and that the State could not prove he was the person on the
surveillance video or in the market. Trial counsel and the Petitioner discussed
extensively that the Petitioner was the person on the surveillance video; nevertheless, trial
counsel thought that he was not prohibited ethically from challenging the State’s proof
regarding the identity of the person on the video.
Trial counsel did not “think it was ever seriously discussed that [the Petitioner]
would testify and claim that he was not the person in the video.” Trial counsel explained
that such testimony was different from challenging the State’s proof of identity and
would have been “fraudulently represent[ing] something to the [trial court].” Trial
counsel acknowledged that the Petitioner had a constitutional right to testify. Regardless,
trial counsel thought he could not ethically support the Petitioner’s testimony denying he
was the person on the video because both he and the Petitioner knew that testimony
would not be truthful. In that event, trial counsel would have been constrained to either
make a “noisy withdrawal” or to allow the Petitioner to testify in a narrative fashion
without being asked questions. The Petitioner readily accepted trial counsel’s advice
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against testifying. Trial counsel opined that the Petitioner understood the Momon2
proceedings and knowingly and intelligently waived his right to testify.
On cross-examination, trial counsel said that the Petitioner received multiple plea
offers from the State. The Petitioner was interested in settling the case, but the State
never made an offer the Petitioner “could live with.”
Trial counsel said that he probably advised the Petitioner that the State might use
his prior aggravated robbery convictions to impeach his credibility if he testified but that
he could not recall definitively whether he advised the Petitioner of that possibility. Trial
counsel thought he filed a motion in limine to prevent the State from using the prior
convictions for impeachment because they were too similar to the charged offenses.
Trial counsel conceded that he did not challenge the sufficiency of the evidence to
support the attempted aggravated robbery conviction in the Petitioner’s motion for new
trial or on direct appeal but offered no specific explanation for his decision.
After the hearing, the post-conviction court filed an order denying relief. On
appeal, the Petitioner challenges this ruling.
II. Analysis
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
2
In Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999), our supreme court outlined procedural
safeguards to ensure that a criminal defendant’s constitutional right to testify at trial was knowingly,
voluntarily, and intelligently waived on the record.
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Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,
[b]ecause 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. Indeed, a court need not address the components in
any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
The Petitioner asserts that trial counsel should have challenged the sufficiency of
the evidence because the State adduced no proof a robbery occurred. The Petitioner
maintains that counsel “effectively waiv[ed] the issue for appeal.” We note, however,
that sufficiency of the evidence is “an issue which is not waived by the defendant’s
failure to raise it in his motion for new trial.” State v. Bowman, 327 S.W.3d 69, 93
(Tenn. Crim. App. 2009) (citing State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim. App.
2001); Tenn. R. App. P. 3(e)).
Moreover, the proof at trial revealed that Bowman heard the Petitioner discussing
his need for money. Shortly thereafter, Bowman and the Petitioner met two other men,
and the four men drove to the store. The Petitioner exited the car first, and, as Bowman
felt on the floor of the car for his money clip, he felt a gun. The two men in the car urged
Bowman to take the gun with him to help the Petitioner, saying that the Petitioner “has
this [under control].” As they walked into the store, Bowman pled with the Petitioner to
buy some chips and leave the store, but the Petitioner responded, “I got this,” which
Bowman interpreted to mean the Petitioner and the other men had formed a plan to “get
some money” and “rob the store.” The Petitioner entered the store and wrestled with the
owner of the store. Eventually, the owner got his own gun, and the Petitioner fired the
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first shot. The owner and the Petitioner exchanged gunfire as the Petitioner and Bowman
ran outside and got in the car. We conclude that the State adduced sufficient proof to
sustain the Petitioner’s attempted aggravated robbery conviction; therefore, the Petitioner
suffered no prejudice by trial counsel’s failure to raise the issue on direct appeal. See
State v. Tyler Young, No. W2013-01591-CCA-R3-CD, 2015 WL 513643, at *4 (Tenn.
Crim. App. at Jackson, Feb. 6, 2015); State v. Kevin L. Buford, Sr., No. M2010-01618-
CCA-R3-CD, 2012 WL 1895953, at *21 (Tenn. Crim. App. at Nashville, May 24, 2012).
In a related issue, the Petitioner contends that trial counsel should have objected to
Bowman’s testimony that a robbery probably would have occurred if shots had not been
fired, which the Petitioner asserts was only speculation. We note that even without
Bowman’s challenged testimony, the proof adduced at trial clearly established that the
Petitioner intended to rob the store. Accordingly, we conclude the Petitioner did not
suffer any prejudice by trial counsel’s failure to object. See Leonard Lebron Ross v.
State, No. 03C01-9802-CR-00077, 1999 WL 357339, at *4 (Tenn. Crim. App. at
Knoxville, June 4, 1999).
The Petitioner contends that trial counsel deprived him of his constitutional right
to testify by advising the Petitioner that “he would not allow him to testify at trial because
his answers would be lies.” The Petitioner maintains that “[t]rial counsel was not
ethically prohibited from allowing [the Petitioner] to testify in his defense even if those
answers might make him feel uncomfortable.” Initially, we note that the Tennessee
Supreme Court’s Rules of Professional Conduct provide in pertinent part:
(b) A lawyer shall not offer evidence the lawyer knows to be
false, except that a lawyer who represents a defendant in a
criminal proceeding, and who has been denied permission to
withdraw from the defendant’s representation . . . may allow
the client to testify by way of an undirected narrative or take
such other action as is necessary to honor the defendant’s
constitutional rights in connection with the proceeding.
Tenn. Sup. Ct. R. 8, RPC 3.3(b). Trial counsel correctly advised the Petitioner that if he
intended to offer false or fraudulent testimony, trial counsel ethically would be unable to
question the Petitioner and would be constrained to have the Petitioner testify in a
narrative fashion.
Moreover, the post-conviction court accredited trial counsel’s testimony that he
advised the Petitioner not to testify and that the State could impeach the Petitioner with
his prior convictions. Trial counsel had a valid concern regarding an ethical issue if the
Petitioner had chosen to testify completely contrary to his acknowledgment to trial
counsel that the Petitioner was the person shown on the video. The Petitioner is not
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entitled to relief on this basis. Scott Bradley Price v. State, No. E2004-02718-CCA-R3-
PC, 2005 WL 3479242, at *7 (Tenn. Crim. App. at Knoxville, Dec. 16, 2005).
Finally, the Petitioner contends that trial counsel was ineffective by failing to
present a ballistics expert to corroborate the Petitioner’s claim that he was not aiming at
the victim but was firing his weapon at random in order to escape the store. However,
the Petitioner did not have a ballistics expert to testify at the post-conviction hearing.
Generally, “[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 v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). We may not speculate on what benefit this witness might have offered to the
Petitioner’s case, nor may we guess as to what evidence further investigation may have
uncovered. Id. Accordingly, the Petitioner has failed to demonstrate prejudice in this
regard.
III. Conclusion
In sum, we affirm the judgment of the post-conviction court and conclude that the
Petitioner is not entitled to post-conviction relief.
_________________________________
NORMA MCGEE OGLE, JUDGE
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