post-conviction evidentiary hearing in Tennessee

2026Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

2026Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

2025App. Sept. 10, 2015), perm. app. denied (Tenn. Dec. 10, 2015) (concluding that a petitioner who asserts a claim of ineffective assistance of counsel based on counsel’s failure to make an offer of proof of a witness’s proposed testimony is unable to demonstrate that such a failure prejudiced the defense unless the petitioner presents that witness’s testimony at the post-conviction evidentiary hearing); see also Black, 794 S.W.2d at 757 .

2018We agree that Counsel’s failure to present known and available material witnesses at trial may be grounds for post-conviction relief; however, only when the witnesses testify at the post-conviction evidentiary hearing and the testimony’s absence from trial “resulted in the denial of critical evidence which inured to the prejudice of the petitioner.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

2007In the context 1 The record reflects that same judge presided at the post-conviction evidentiary hearing and at trial. -5- of a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim.

2001In closing, we note the petitioner’s assertion at the post-conviction evidentiary hearing that he “didn’t have a choice.” In this regard, we have previously observed that “[t]he statement, ‘I have no choice,’ may . . . well mean that, after considering the options before him, the petitioner -10- concluded that the only intelligent choice was to plead guilty.” Hicks, 983 S.W.2d at 248 .

2019As to the Petitioner’s claim that trial counsel was ineffective for failing to argue the speedy trial issue on direct appeal, the right to a speedy trial, which is guaranteed by the Sixth Amendment to the United States Constitution and by article I, section 9 of the Tennessee Constitution, “attaches at the time of arrest or indictment, whichever comes first, and continues until the date of the trial.” State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim.

2018As to the Petitioner’s claim that trial counsel was ineffective for failing to argue the speedy trial issue on direct appeal, the right to a speedy trial, which is guaranteed by the Sixth Amendment to the United States Constitution and by article I, section 9 of the Tennessee Constitution, “attaches at the time of arrest or indictment, whichever comes first, and continues until the date of the trial.” State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim.

2017However, a footnote in the Petitioner’s brief states, “[b]ased on the record on appeal, including the testimony elicited during the post-conviction evidentiary hearing, Appellant chooses not to address grounds (3) and (4) in this brief.” The post-conviction court addressed all of the Petitioner’s issues in its order denying relief; however, this opinion will focus solely on the two issues addressed in the Petitioner’s brief. -7- Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation marks omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. St

2017Initially, we note that “there is no constitutional entitlement to the effective assistance of counsel in a post-conviction proceeding.” Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010).

2010He ar gues that the court’s ruling is “against the weight of the evidence.” If afforded a post-conviction evidentiary hearing by the trial co urt, a petitioner must do m ore than m erely present evidence tending to show incompetent representation and prejudice; the petitioner must prove factual allegations by a prep ondera nce of the evidenc e. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.

1999If afforded a post-conviction evidentiary hearing by the trial court, a petitioner must do m ore than m erely present evidence tending to show incompetent representation and prejudice; the petitioner must prove factual allegations by a prep ondera nce of the evidenc e. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.

2026Cf. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) (holding that recusal was not required when “[a]ny adverse attitudes that [the judge] evinced toward the defendants were based on his study of the depositions and briefs which 5 the parties had requested him to make [prior to trial]”).

2026State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (“As a general matter, appellate courts must defer to a post- conviction court’s findings with regard to witness credibility, the weight and value of witness testimony, and the resolution of factual issues presented by the evidence.”).

2026State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (“As a general matter, appellate courts must defer to a post- conviction court’s findings with regard to witness credibility, the weight and value of witness testimony, and the resolution of factual issues presented by the evidence.”).

2024See State v. Flake, 114 S.W.3d 487, 498 (Tenn. 2003). -6- Additional witnesses testified at the post-conviction evidentiary hearing about the Petitioner’s behavior during and after high school, and family members testified about his family’s mental health issues.

2022See Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim.

2020Taylor v. State, 443 S.W.3d 80, 85 (Tenn. 2014) (quoting Black, 794 S.W.2d at 757 ); Terrance Cecil, 2011 WL 4012436 at *8; Shakir Adams, 2011 WL 744736 at *12.

2017Although counsel did not address many of the Petitioner’s claims at the hearing, “[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 v. State, 146 S.W.3d 56, 61 (Tenn. 2004) (quoting House v. State, 911 S.W.2d 705, 711 (Tenn. 1995)).

2017However, a footnote in the Petitioner’s brief states, “[b]ased on the record on appeal, including the testimony elicited during the post-conviction evidentiary hearing, Appellant chooses not to address grounds (3) and (4) in this brief.” The post-conviction court addressed all of the Petitioner’s issues in its order denying relief; however, this opinion will focus solely on the two issues addressed in the Petitioner’s brief. -7- Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation marks omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. St

2017Although counsel did not address many of the Petitioner’s claims at the hearing, “[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 v. State, 146 S.W.3d 56, 61 (Tenn. 2004) (quoting House v. State, 911 S.W.2d 705, 711 (Tenn. 1995)).

2017However, a footnote in the Petitioner’s brief states, “[b]ased on the record on appeal, including the testimony elicited during the post-conviction evidentiary hearing, Appellant chooses not to address grounds (3) and (4) in this brief.” The post-conviction court addressed all of the Petitioner’s issues in its order denying relief; however, this opinion will focus solely on the two issues addressed in the Petitioner’s brief. -7- Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation marks omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. St

2015Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim.

2011As to the Petitioner’s claim that counsel should have talked with him about having a court reporter at trial, we note that “a court reporter [is] not provided at state expense for a misdemeanor unless a defendant [is] unable to afford one based upon indigency.” State v. Nail, 963 S.W.2d 761, 764 (Tenn. Crim.

2011In Ring v. Arizona, 536 U.S. 584, 587 (2002), the Court applied Apprendi to hold that because Arizona conditioned eligibility for the death penalty upon the presence of an aggravating fact that was not an element of first degree murder, the Sixth Amendment guaranteed the defendant a right to a jury determination of that fact.

2010Our supreme court, in setting forth the standard for identifying a constitutionally valid guilty plea, has noted that “before a trial judge can accept a guilty plea, there must be an affirmative showing that it was given intelligently and voluntarily.” State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)).

2010Our supreme court, in setting forth the standard for identifying a constitutionally valid guilty plea, has noted that “before a trial judge can accept a guilty plea, there must be an affirmative showing that it was given intelligently and voluntarily.” State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)).