Douglas W. Curtis Case

This is a petition for post-conviction relief filed by Petitioner, Mr. Douglas W. Curtis (“Petitioner”), on January 24, 2018, and opposed by Respondent, the State of Tennessee (“the State”). The Court heard the Petition on May 22, 2018, taking the matter under advisement. Mr. Curtis alleges that he received ineffective assistance of counsel in his trial and is, accordingly, entitled to post-conviction relief.

STATEMENT OF FACTS

Douglas W. Curtis was indicted on four counts of Rape of a Child, a Class A felony. This case arose after the victim, who was twenty-nine years old at the time of trial, came forward with allegations that the petitioner, her father, raped her when she was a young girl. At his trial, Petitioner was represented by John.

Code Ann. § 40-30-106(d) (2017). At the hearing of a petition, “the petitioner shall have the burden of proving the allegations of fact by clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2017). “If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable . . . the court shall vacate and set aside the judgment . . . .” Tenn. Code. Ann. § 40-30-111 (2017).

Mr. Curtis alleges his constitutional right to effective assistance counsel under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution was abridged. See generally, U.S. Const. Amend. VI; Tenn. Const. Art. I, § 9. The denial of a defendant’s Sixth Amendment right to counsel is also a denial of the defendant’s right to be heard by counsel under the Tennessee Constitution. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see also Tenn. Const. art. I, § 9. The Supreme Court of the United States has, for some time, maintained that “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)). When the accused is not accorded effective assistance of counsel, his conviction cannot stand. Goosby v. State, 917 S.W.2d 700, 707 (Tenn. Crim. App. 1995) (citing Harris v. State, 875 S.W.2d 662, 665 (Tenn.

at 694. While merely showing that “the errors had some conceivable effect on the outcome of the proceeding” is insufficient to meet this burden, “a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.” Id. at 693. In bringing a petition for post-conviction relief, “[a] petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); see also Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (“It cannot be said that incompetent representation has occurred merely because other lawyers, judging from hindsight, could have made a better choice of tactics.”).

Tennessee appellate courts have ruled several times that malfunctioning trial strategy does not form a sufficient basis for overturning a conviction on appeal. Even so, the Tennessee Supreme Court has stated while “[t]his court does not sit to second guess strategic and tactical choices made by trial counsel[,] when counsel's choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel.” Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (quoting United States v. DeCoster, 487 F.2d