Assigned on Briefs September 7, 2016
from the Criminal Court for Shelby County No. 07-02157 Glenn
Ivy Wright, Judge.
Petitioner, Mitchell Garner, appeals the Shelby County
Criminal Court's denial of his petition for
post-conviction relief from his conviction of aggravated
sexual battery and resulting twelve-year sentence. On appeal,
the Petitioner claims that he received the ineffective
assistance of counsel. Based upon the record and the
parties' briefs, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
A. McClusky, Memphis, Tennessee, for the appellant, Mitchell
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Amy P. Weirich, District Attorney
General; and David M. Zak, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
MCGEE OGLE, JUDGE.
trial, the victim testified that in December 2007, she was a
prostitute. State v. Mitchell Garner, No.
W2008-01333-CCA-R3-CD, 2010 WL 571793, at *1 (Tenn. Crim.
App. at Jackson, Feb. 18, 2010). In the early morning hours
of December 17, the victim left the motel room she was
sharing with her boyfriend in order to obtain crack cocaine.
Id. She was not working as a prostitute at that
time. Id. The Petitioner, who was a large,
African-American male, called to the victim from his
semi-trailer truck, which was parked in an empty parking lot
across from the motel. Id. He got out of the truck
and talked with the victim in the lot. Id. The
Petitioner wanted "'a date'" for $30.
Id. When the victim refused, he grabbed her,
wrestled her to the ground, and started beating and choking
her. Id. The victim pulled out a pocketknife she
carried for protection, but the Petitioner took it and cut
her wrist and mouth. Id. He also pulled down her
pants and penetrated her vagina with his fingers.
Id. The victim said that she repeatedly
"'went out'" due to the choking and that
she did not know if he penetrated her with his penis.
Id. The attack lasted for hours and ended when a
police officer pulled over someone near the truck.
Id. On cross-examination, the victim denied telling
police that a white man was in the passenger seat of the
truck and said that she did not see anyone other than the
police officer testified that he stopped a motorist nearby,
heard the victim screaming, and found her naked and covered
in blood. Id. at *2. He ordered the Petitioner out
of the truck at gunpoint and saw that the Petitioner had
blood on his shirt and pants and scratches on his face.
Id. at *2. The Petitioner offered several different
explanations for what had happened to the victim, including
that she tried to rob him and that he defended himself.
Id. After the officer handcuffed the Petitioner, he
noticed that Chad Harris, who was white, was in the
truck's passenger seat. Id. A second officer who
arrived on the scene noticed that the truck had a broken
victim spent eleven days in the hospital, including four days
in the intensive care unit. Id. at *1, 2. A forensic
nurse testified that the victim had injuries all over her
body and that blood was in her vaginal area, which was
consistent with digital penetration. Id. at *3.
police officer spoke with the victim at the hospital in the
early morning hours of December 17 and testified that she
told him "'a white person had stopped and offered
her money for sex; when she refused to perform the sex act,
that she was attacked.'" Id. at *2.
However, the victim told another officer the day after the
attack that the Petitioner penetrated her with his fingers,
that he attempted to penetrate her with his penis, and that
no one else was involved. Id. at *3.
testing revealed that the victim's DNA, but not the
Petitioner's DNA, was on the bloody pocketknife.
Id. Blood with the victim's DNA also was on two
shirts the Petitioner was wearing at the time of the attack.
Id. Vaginal swabs ...