Dean, aka Shabazz v. State
| Decision Date | 31 March 2000 |
| Docket Number | 98-00135 |
| Citation | 59 S.W.3d 663 |
| Parties | FRED EDMOND DEAN, a/k/a OMAWALI ASHANTI SHABAZZ, Appellant, VS. STATE OF TENNESSEE, Appellee. E1998-00135-IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE |
| Court | Tennessee Court of Criminal Appeals |
SULLIVAN COUNTY
OPINION FILED ________________
REVERSED IN PART; POST-CONVICTION RELIEF GRANTED IN PART
The Petitioner, Fred Edmond Dean, also known as Omawali Ashanti Shabazz, appeals as of right from the trial court's denial of post-conviction relief after an evidentiary hearing. The Petitioner was originally indicted for first degree murder and attempted first degree murder. He was tried before a jury on January 24-26, 1995, and was found guilty of the lesser included offenses of second degree murder and attempted second degree murder. The trial court sentenced him to thirty years incarceration as a Range II multiple offender for the second degree murder conviction and to fifteen years as a Range II multiple offender for the attempted second degree murder conviction. The sentences were ordered to be served consecutively. The Petitioner then appealed his convictions and sentences to this Court, and we affirmed the judgment of the trial court. See State v. Fred Edmond Dean, C.C.A. No. 03C01-9508-CC-00251, 1997 WL 7550 (Tenn. Crim. App., Knoxville, Jan. 10, 1997). The supreme court denied permission to appeal.
On July 10, 1997, the Petitioner filed a pro se petition for post-conviction relief. The post-conviction court appointed counsel, who filed a supplemental petition. An evidentiary hearing on the petition was held on October 30, 1998. The post-conviction judge subsequently entered a written order in which he made extensive and thorough findings of fact and denied post-conviction relief. On appeal from that denial, the Petitioner raises the following issues:
I. Whether the post-conviction court erred in failing to find that the trial court engaged in judicial misconduct.
II. Whether the post-conviction court erred in failing to find that the erroneous sentencing instruction entitled the Petitioner to relief.
III. Whether the post-conviction court erred in failing to find that the lost rent receipt constituted a Brady violation, entitling the Petitioner to relief.
IV. Whether the post-conviction court erred in failing to find that the erroneous discovery response concerning a statement made by Freda Michelle Lubeke entitled the Petitioner to relief.
V. Whether the post-conviction court erred in failing to find that the "moral certainty" charge to the jury entitled the Petitioner to relief.
VI. Whether the post-conviction court erred in failing to rule upon all issues raised by the Petitioner.
We partially reverse the judgment of the post-conviction court and grant the Petitioner post-conviction relief with respect to his attempted second degree murder conviction.
Relief under our Post-Conviction Procedure Act will be granted only when the conviction or sentence is void or voidable because of the abridgement of any right guaranteed by either the Tennessee Constitution or the United States Constitution. Tenn. Code Ann. 40-30-203. At a post-conviction hearing, the petitioner has the burden of proving the allegations of fact by clear and convincing evidence. Id. 40-30-210(f). The findings of fact made by the trial court are conclusive on appeal unless the evidence preponderates otherwise. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).
To be considered, a petition for post-conviction relief must show that the claims for relief have not been waived or previously determined. See Tenn. Code Ann. 40-30-206(f). A ground for relief is waived if the petitioner failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented. Id. 40-30-206(g). 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. Id. 40-30-210(f). The rebuttable presumption of waiver is not overcome by allegations that the petitioner did not personally waive the ground for relief. Waiver is to be determined by an objective standard, under which the petitioner is bound by the action or inaction of his attorney. House v. State, 911 S.W.2d 705, 706 (Tenn. 1995).
The Petitioner first argues that the post-conviction court erred in failing to find that the trial court engaged in judicial misconduct. This is an issue which could have been raised at the trial court level and on direct appeal. The Petitioner did not set forth in his petition for post-conviction relief any reason why this issue was not previously raised. Although the State's response to the petition asserted that the issue was waived for failure to present it at a prior proceeding, the Petitioner never responded with an explanation of why it was not previously raised. The post-conviction court considered the issue on the merits, and after making thorough findings of fact, determined that the trial judge did not engage in judicial misconduct and that, even if he did, such conduct was harmless. We conclude that the evidence does not preponderate against these findings, but we also find that the Petitioner failed to rebut the presumption that the issue was waived. Consequently, any alleged judicial misconduct is not a cognizable ground for relief in this post-conviction proceeding. See id.; Tenn. Code Ann. 40-30-206(f), (g).
The Petitioner next claims that the post-conviction court erred in failing to find that the erroneous sentencing instruction entitled him to relief. Both parties agreed that the trial court erred in instructing the jury that the sentence range for attempted second degree murder was three to ten years, when the actual sentence range for the offense was eight to thirty years. See Tenn Code Ann. 40-35-111(b)(2). Because the Petitioner was a Range II offender, his actual sentence range was twelve to twenty years. See id. 40-35-112(b)(2). Although the sentencing instruction was incorrect, the Petitioner failed to object to the instruction at trial, failed to challenge the instruction in the motion for a new trial, and failed to challenge the instruction on direct appeal. Because this issue could have been presented at a prior proceeding and because the Petitioner failed to rebut the presumption of waiver, we find that this issue is waived. Moreover, the failure to give a correct jury instruction on the sentence range is a violation of a statutory right, not a constitutional right. State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991); State v. Meyer, 994 S.W.2d 129, 131 (Tenn. 1999). As such, it is not a proper ground for post-conviction relief. See Tenn. Code Ann. 40-30-203.
Notwithstanding, the Petitioner also alleges that he was denied the effective assistance of counsel due to his trial counsel's failure to challenge the erroneous jury instruction in the motion for a new trial and his appellate counsel's failure to raise the issue on direct appeal. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the Sixth Amendment right to counsel was "'so fundamental and essential to a fair trial . . . that it is made obligatory upon the States by the Fourteenth Amendment.'" Id. at 340 (quoting Betts v. Brady, 316 U.S. 455, 465 (1942)). This right to trial counsel includes the right to effective trial counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In Douglas v. California, 372 U.S. 353 (1963), the Supreme Court held that the Fourteenth Amendment guarantees a defendant the right to counsel through the first appeal. Id. at 357-58. Recognizing that ineffective representation is no better than no counsel at all, the right to counsel was held to necessarily encompass the constitutional right to effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985).
The same principles apply in determining the effectiveness of both trial and appellate counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). To determine whether counsel provided effective assistance, the court must decide whether counsel's performance was within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that counsel was ineffective, a petitioner bears the burden of showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the petitioner, resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687; Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the second prong, 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." Strickland, 466 U.S. at 694. This reasonable probability must be "sufficient to undermine confidence in the outcome." Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
When reviewing counsel's actions, this Court should not use the benefit of hindsight to second-guess trial strategy and criticize counsel's tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel's alleged errors should be judged at the time they were made in light of all facts and circumstances. Strickland, 466 U.S. at 690; see Cooper 849 S.W.2d at 746.
The Petitioner here...
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