Assigned on Briefs May 2, 2017
from the Criminal Court for Shelby County No. 09-07493 Chris
Petitioner, Kenneth Kirkwood, appeals the dismissal of his
petition for post-conviction relief, arguing that the
post-conviction court erred in denying him a full hearing and
concluding that he waived all his ineffective assistance of
counsel claims by raising an allegation of ineffective
assistance of counsel in his motion for new trial and on
direct appeal. Following our review, we affirm the dismissal
of the petition on the basis that the Petitioner has already
been afforded an opportunity to litigate his ineffective
assistance of counsel claim.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
D. Sipes, Jackson, Tennessee (on appeal); and Lindsey R.
Steffgen Memphis, Tennessee (at hearing), for the appellant,
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Carla L. Taylor,
Assistant District Attorney General, for the appellee, State
E. Glenn, J., delivered the opinion of the court, in which
Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.
E. GLENN, JUDGE.
December 2012, the Petitioner was convicted by a Shelby
County Criminal Court jury of especially aggravated robbery,
especially aggravated kidnapping, use of a firearm during the
commission of a dangerous felony, and aggravated burglary. He
was subsequently sentenced by the trial court to an effective
term of forty-five years in the Department of Correction at
100% as a violent offender. His convictions were affirmed by
this court on direct appeal, and our supreme court denied his
application for permission to appeal. See State v.
Kenneth Kirkwood, No. W2013-01007-CCA-R3-CD, 2014 WL
4243764, at *1 (Tenn. Crim. App. Aug. 27, 2014), perm.
app. denied (Tenn. Jan. 15, 2015).
direct appeal opinion reveals that the Petitioner's
convictions were based on his actions on April 28, 2009,
when, assisted by an accomplice, he accosted the victim,
Arnedra Taylor, in the driveway of her home, forced her at
gunpoint inside her home, moved her from room to room as he
searched for cash and valuables, took approximately $230 in
cash and a laptop from her, and shot her in the hip, injuring
her severely, before departing with his accomplice.
Id. at *1-2. Ms. Taylor made both out-of-court and
in-court identifications of the Petitioner as the man who
accosted her in the driveway and shot her in the hip and of
the Petitioner's co-defendant, William Acey, as the man
who accompanied the Petitioner inside the home, helped search
for valuables, and gave the Petitioner his gun to shoot the
victim after the Petitioner's weapon jammed. Id.
at *3-4. At the conclusion of the trial, the jury convicted
the Petitioner of all indicted charges but acquitted Mr. Acey
of all charges. Id. at *5.
the issues the Petitioner raised in his motion for new trial,
despite the warning of the trial court, was whether he was
denied the effective assistance of trial counsel.
Specifically, the Petitioner alleged that his counsel had at
various times during the trial fallen asleep. In overruling
the motion, the trial court noted that trial counsel had
informed him at the start of the trial that he was taking
cold medicine, which made him drowsy. The court also observed
that it had watched counsel throughout the trial and "at
no time . . . was [trial counsel] not ready." The trial
court concluded that trial counsel had performed
"adequately" and that the Petitioner had received a
fair trial. Id. at *6.
direct appeal, the Petitioner "acknowledge[d] that his
attorney's performance at trial 'fell within the
range of competence demanded of attorneys in criminal
cases'" but argued that he was also basing his
ineffective assistance of counsel claim on counsel's
performance during the hearing on the motion for new trial.
The Petitioner asserted that counsel's performance during
the hearing on the motion for new trial should be presumed
prejudicial under the United States v. Cronic, 466
U.S. 648 (1984), standard because of counsel's complete
failure to communicate with him or advise him regarding his
ineffective assistance of counsel claim. Id. at
*9-10. In rejecting the Petitioner's argument, this court
first noted that trial counsel must have communicated with
the Petitioner in some fashion for counsel to have included
the ineffective assistance of counsel claim in the motion for
new trial. This court also concluded, among other things,
that the Petitioner failed to show that he was prejudiced by
counsel's performance at the hearing. Id. at
August 10, 2015, the Petitioner filed a pro se petition for
post-conviction relief in which he raised a number of claims,
including ineffective assistance of counsel. Following the
appointment of post-conviction counsel, he filed an amended
petition in which he alleged that his trial counsel was