IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED AUGUST SESSION, 1998 December 31, 1998 Cecil W. Crowson Appellate Court Clerk BRUCE EDWARD LITTLE, ) C.C.A. NO. 01C01-9710-CR-00461 ) Appe llant, ) ) DAVIDSON COUNTY V. ) ) ) HON. WALTER C. KURTZ, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST -CON VICTIO N)

FOR THE APPELLANT: FOR THE APPELLEE: JONATHAN COLE JOHN KNOX WALKUP Baker, D onelso n, Attorney General & Reporter Bear man & Ca ldwell 1700 Nashville City Center KAREN M. YACUZZO U nion Stre et Assistant Attorney General P.O. Box 190613 2nd Floor, Cordell Hull Building Nashville, TN 37219 425 Fifth Avenue North Nashville, TN 37243 VICTO R S. JO HNS ON, III District Attorney General JOHN C. ZIMM ERM AN Assistant District Attorney General Washington Square Second Avenue North, Suite 500 Nashville, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Bruce Edward Little, appeals as of right from the trial court’s dismissal of his petition for post-conviction relief following an evidentiary hearing. In his issues on appeal, the Petitioner argues that the indictment was cons titutiona lly defective because it failed to allege a proper mens rea, he was denied the effective assistance of counsel at trial, evidence used against him at trial was seized pursuant to an invalid search warrant, and the post-conviction trial court shou ld have recused himself from presiding over the post-conviction hearing. After review of the record , the brie fs filed o n beh alf of the parties , and th e app licable law, we affirm the judgm ent of the tria l court.

Following a jury trial, Petitioner was convicted in the Davidso n Cou nty Criminal Court of c onspira cy to deliver o ver thirty (30) grams of cocaine, delivery of over thirty (30) grams of cocaine, and possession with intent to deliver over thirty (30) gr ams of coc aine. T he fac ts of the case are se t forth in th is court’s opinion of the direct app eal from those co nvictions. State v. Little , 854 S.W.2d 643 (Tenn. Crim. App. 1992 ). The supreme court denied Petitioner’s application for permission to appeal on October 26, 1992, and he timely filed his petition for post-conviction relief on Au gust 21 , 1995.

Only the Petitioner and his trial counsel testified at the post-conviction hearing. Petitioner testified that he retain ed Da le Quillen o f the Nas hville Bar to represent him in the pen ding charge s. Howeve r, Mike Flanagan, who practiced law with Mr. Quillen, actually represented Petitioner pre-trial and at the trial. He denied

-2- consenting to being represented by Mr. Flanaga n, and specifically stated that he wanted Mr. Quillen to be his law yer. Petitione r comp lained th at Mr. Flanagan conducted no pre-trial investigation and did not speak with any witnesses. He stated that Mr. Flana gan d id not c all any w itness es to te stify on h is behalf either at the trial or at the sentencing hearing. Furthermo re, Petitioner asserted that Mr. Flanagan only talked to him once or twice in a year and a half prior to trial, and never discuss ed defe nse strate gy with Pe titioner.

Mr. Flanagan testified that he was licensed to practice law in Tennessee in 1981. After being in private practice in East Tennessee for approximately two years, he moved to Nash ville and wo rked in the legal office o f the Dep artmen t of Safety. In 1986 he re turned to private pra ctice in the law offices of M r. Quillen. Prior to Petitioner’s trial, Mr. Flanagan had been involved in twelve to fourteen criminal jury trials. At the Department of Safety, his specific duties involved representing various state agencies in forfeiture proceedings wherein vehicles had been seized pursuant to applicable drug laws.

On a regular basis, Mr. Flanagan assisted Mr. Quillen in representation of clients who had retained Mr. Quillen. Due to his p articular expertise in seizu re matters, Mr. Fla naga n imm ediate ly beca me in volved in repre sentin g Petitio ner regarding the seizure of certain of Pe titioner’s pro perty as a result of his a rrest.

Flanagan relayed that he and Quillen had spoken with Petitioner about Flanagan representing Petitioner, and P etitione r gave his consent. In fact, Pe titioner told Mr. Flanagan that he wanted Flanagan to represent him. Flanagan also recalled that he met with Petition er on se veral occ asions, a t least ten (1 0) to fifteen (1 5) times to discuss the case. Mr. Flanagan testified that he had obtained all discovery he was -3- lawfully entitled to receive prior to the jury trial. He gained knowledge about the State ’s case at the forfeiture hearing and well as in formal discovery. Flanagan stated that he discus sed a ll aspe cts of th e cas e with P etitione r prior to trial.

David Clark was a co-defendant of Petitioner who testified for the State at Petitioner’s trial. Flanagan recognized that his best available defense was to thorou ghly cross-examine Clark. He felt that if the jury believed Clark, Petitioner would be convicted, and conversely, if the jury did not believe Clark, Petitioner would likely be acquitted. Petitioner admitted to Flanagan that he obtained the drugs from the motel, taken the drugs to this home, and had given the drugs to another co- defend ant. Therefore, un der Mr. Flana gan’s plan of de fense strategy, putting the Petitioner on the stand to testify was not an option. In fact, according to Flanagan, Petitioner did not w ant to testify. Flanagan acknowledged that Petitioner did not advise him o f other tr ansa ctions involving Mr. Cla rk, to wh ich Mr. Clark testified at trial.

Petitioner asked Flanagan to have the executive director of the YMCA testify on this behalf at the sentenc ing hearing co ncerning D efendant’s ch aracter.

Flanagan interviewed this witness, who initially sp oke we ll of Petitioner. Howeve r, he adm itted tha t his op inion w ould be different if he knew that Petitioner had been convicted in a case involving that much cocaine. According to Flanagan, Petitioner never gave h im an y nam es of p otentia l witnes ses fo r the trial itself. Flanagan estimated his preparation time for the trial, including participation in the c ivil forfeiture hearing , to be a m inimum of forty (40) h ours.

SUFFICIENCY OF INDICTMENT -4- Petitioner was charged in three (3) of the four (4) counts of the indictment along with various co-defendants. The co unts of the in dictm ent wh erein Petitioner was charged alleged as follows:

COUNT ONE JANUARY TERM, 1990, CRIMINAL COURT THE GRAND JURO RS of Davidson County, Ten ness ee, du ly impan eled an d sworn , upon the ir oath, pres ent that: Bruce Edward Little, Trina Lavelle Thompson, Charles Jo hn Miller, Shannon R. Benton, Rose Adell Flynn and D avid Ra y Clark on the 28th day of June, 1989, in Davidson County, Tennessee and before the finding of this indictment, unlawfully and feloniously did conspire to deliver thirty (30) grams or more of a subs tance co ntaining c ocaine , a Sche dule II controlled substance, and in furtherance of said conspiracy did commit one or more of the following overt acts: 1. Defen dants Charles John Miller and Shannon R. B enton went to the residence of defendant Trina Lavelle Thompson to buy approximately ½ kilogram of cocaine; 2. Defendant Bruce Edward Little transported appro ximate ly ½ kilogram of cocaine from room 215 of the Econo Lodge, which was occupied by the said Rose Adell Flynn and David Ray Clark, to the residence of Trina Lavelle Thompson; 3. Defendant Trina Lavelle T homps on and B ruce Edw ard Little retained the profits fro m the d rug trans action; in violation of Tennessee Code Annotated § 39-6-417(c) and against the peace and dignity of the State of Tennessee.

C OU NT TW O And the Gra nd Juro rs aforesaid , upon their oath aforesaid, do further present that the s aid Bruce Edward Little, Tr ina La velle Thompson, Charles John Miller, Shannon R. Benton, Rose Adell Flynn and David R ay Clark o n the day and yea r aforesa id, in the cou nty aforesaid, unlaw fully and felonio usly did deliver thirty (30) grams or more of a substance containing cocaine, a Schedule II controlled substance, in violation of Tennessee Code Annotated § 39-6-417(c) and against the peace and dignity of the State of Tennessee.

COUNT FOUR -5- And the Grand Jurors aforesaid, upon their oath aforesaid, do further present that the said Bruce Edward Little, Rose Adell Flynn and David Ray Clark on the day and year aforesaid, in the county aforesaid, unlaw fully did possess with intent to deliver thirty (30) grams or m ore of a substance containing cocaine, a Schedule II controlled substance, said possession occurring at room 215 at the Econo Lodge, 1400 Brick Church Pike, in violation of Tennessee Code Annotated § 39-6-417(c) and against the peace and dignity of the State of Tennessee.

All of the counts in the indictment alleged a violation of Tennessee Code Anno tated section 39-6-417(b)(4)(c)(1) (Repealed 1990). The pertinent portion of that statute provides as follows:

Except as authorized by §§ 39-6-401 — 39-6-419 and Title 53, chapter 11, parts 3 and 4 , it shall be unlawful and shall constitute a Class X felony for a pers on to k nowin gly manufacture, deliver, sell or possess with intent to man ufactu re, deliv er, sell, or for two (2) or more persons to conspire to manufacture, deliver or sell or possess with intent to manufacture, deliver or sell the following controlled substances in the following amounts: *** (E) Thirty (30) grams or more of any substance containing cocaine.

Petitioner alleges that the counts of the indictment are void because the culpa ble mental state of “knowingly” is not alleged in any of the counts. Tennessee Code Annotated section 40-30-203 provides that relief under the Post-Conviction Act “shall be granted when the co nviction or sen tence is void o r voida ble because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” As stated in State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997), “the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Tennessee Constitution guarantee to the accused the right to be inform ed of the nature and caus e of the accus ation.”

-6- The constitutional requirement that the cu lpable mental state must be alleged is satisfied if it can be inferred from the nature of the criminal conduct alleged. Hill, 954 S.W.2d at 729. The offenses for which Petitioner was convicted were alleged to have been committed prior to the effective date of the 1989 revisions of the Criminal Code, effective November 1, 1989. Our supreme court has held that the analysis o f Hill is as app licable to convic tions u nder th e Act p rior to 19 89 as it is to conviction s for acts c omm itted after the effective da te of the ne w Act. Dykes v. Compton, _____ S.W.2d _____, No. 02S01-9711-CC-00105, slip op. at 3, Lake Coun ty (Tenn ., at Nash ville, Septem ber 21, 1 998).

Count 1 of the indictment alleges cond uct tha t the Pe titioner “u nlawfu lly and feloniously did conspire” to deliver thirty (30) grams or more of a substance containing cocaine and, in furtherance of the conspiracy, he transporte d appro ximate ly ½ kilogram of cocaine from a motel room registered to two (2) of his co-defe ndants to the residence of another co-defendant. Furtherm ore, cou nt 1 alleged that Petitioner and another co-defendant retained profits from the transaction. Coun t 4 of the indictm ent inc ludes allega tions th at the P etitione r “did possess with intent to deliver” thirty (30) grams or more of a substance containing cocaine. Count 2 of the indictment alleges in part that the Petitioner “unlawfully and felonio usly did deliver thirty (30) grams or more of a substance containin g coca ine.”

Each coun t of the in dictm ent alle ged th at the a ctions of the Petition er wer e in violatio n of Tennessee Code Annotated section 39-6-417(c). When read in their entirety, the three (3) counts o f the indictm ent whe rein Petition er was c harged with criminal actions provide sufficient facts from which the culpable mental state of “knowingly” can be inferred. Especially taken in light of the fact that there was a

-7- spec ific reference to the s tatute a lleged ly violated, the Petitioner w as sup plied with more th an am ple notice of the offen se cha rged. Dykes v. Compton, slip op. at 3.

We , therefore , decline to grant relief to Petitioner o n this issue .

SEARCH WARRANT

In this issue, Petitioner asserts that evidence was seized p ursuan t to an invalid search warrant d irecting a s earch o f the premises located at 3524 Chesapeake Drive. The search warrant and affidavit filed for issuance of the warrant were made an exhibit at the hearing. There was not a motion filed to suppress evidence seized as a re sult of e xecutio n of the searc h warr ant prio r to Pe titioner’s trial. Tenn essee Code Annota ted sectio n 40-30 -210(f) provides in part that “[t]here is a rebuttable presumptio n that a ground for relief not raised before a court of competent jurisdiction in w hich the g round c ould ha ve been presen ted is waive d.”

The precis e issue of whether th e sea rch wa rrant w as issu ed an d/or ex ecute d in violation of Petitio ner’s c onstitu tional rig hts reg arding searc h and seizur e law is therefore waived since there is no evidence to rebut the statutory presumption.

Howeve r, Petitioner has included in his allegations of ineffective assistance of counsel the failure of his trial attorney to file a motion to suppress evidence seized pursua nt to the se arch wa rrant.

In addition to the search warrant which was made an exhibit, the only testimony at the post-conviction hearing concerning trial counsel not filing a motion to suppre ss is as follo ws. During cross-examination of trial counsel, the following testimony was elicited: -8- Q. And, Mr. Flanagan, you asserted no objection prior to trial to the search that was conducted of Mr. Little’s residence, did you?

A. I’m not sure what you’re asking about, no objection.

Q. Did you m ove to suppre ss -- A. No, I did not file a motion to suppress.

Q. But the other d efendants in this c ase did, didn’t they?

A. Not to my se arch the y didn’t. They m ay have filed their own motions to suppress in o ther areas. Bu t there was no reas on to file a motio n to supp ress in M r. Little’s situation .

During his direct examination in rebuttal, the Petitioner testified as follows on this issue:

Q. Mr. Little, why are you upset about Mr. Flanagan’s failure to move to suppress this evidence obtained by the search warrant?

A. Because when I looke d at the motio n for dis cover y it said that Mr. Miller [co -defen dant] s aid he don’t know where the drugs come from. He don’t know whe re they com e from. But wh en Mr. Flanagan had, Ph illip [Taylor], the vice detective on the stand and he asked him about that, he said that’s what lawyers have to go by is the motion for disc overy. A nd it said on the -- on the search warrant it said that Mr. Miller made statements that he didn’t -- that he m ade sta temen ts and said he got it from me. But in the search w arrant -- on the m otion -- Q. On the m otion for discovery?

A. Yeah, on the motion for discovery it says he don’t kn ow where them drugs com e from . And h e didn ’t get it from Mr. Little. But on the search w arrant it said that he said he got them from Mr. Little. And Mr. Flan agan ask ed Mr. [Taylor] on the stand about that and he sa id, well, I th ough t he sa id that Mr. Rigsby said -- he though t he said th at, but he d idn’t say tha t.

In his brief, Petitioner argues that the affidavit in support of the search warrant did not es tablish pro bable ca use to jus tify the search because it was based

-9- upon an anonymous tip which failed to satis fy the requ iremen ts of State v. Jacu min, 778 S.W.2d 430 (Tenn. 1989), which adopte d the two -prong te st of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 112 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 41 0, 89 S.C t. 584, 21 L.Ed.2d 637 (1969). It is true that the affidavit does conta in information provid ed by an unknown informant. Ho wever, the trial court found, and we agree, that the affidavit contains substantial information in addition to recitation of anonymous phone calls which, when read together, establish proba ble cause for issuance of the search warrant. Furthermore, there is no proof in the record that the failure to file a mo tion to suppress in this case was outside the range of competence dema nded o f attorneys in crimina l cases. See Baxter v. Rose, 523 S.W .2d 930 , 936 (T enn. 19 75).

Petitioner also makes the conclusory argument that there are fraudulent misrepresentations made in the affidavit filed in support of issuance of the search warran t. He bases this upon language in the search warrant affidavit that “Charles Miller [co-de fenda nt] ma de sta teme nts ag ainst h is pen al interest to Officer Ed Rigsby that he had gotten the cocaine from Bruce L ittle at 3524 Chesa peake Drive.”

Petitioner concludes that this is a fraudulent or reckless misrepresentation based upon a portio n of the State’s response to Petitioner’s motion for discovery filed by the assistant district attorney som e six (6) mon ths afte r the se arch w arran t affidavit was filed. The discovery response states in part as follows, “[t]he defendant Miller stated to Officer Taylor that he didn’t know anything about the cocaine. Then Miller stated that some man at the house g ave the on e-half (½ ) kilogra m of c ocain e to him but denied kn owing his iden tity or the reason for the d elivery of the cocaine.”

-10- The assistant district attorney general who filed the discovery response did not testify at the post-conviction hearing. In fact, it was the same assistant district attorney general who represented the State during the post-conviction hearing. Mr. Flanagan was not questioned about purported conflicting statem ents made by the co-defendant Miller. Officer Taylor, who signe d the a ffidavit in support of the search warrant and would be the most logical person to question regarding any inconsistency o r contradictions, did no t testify. In short, Petitioner provided woefu lly inadequate proof in support of his contention that trial counsel was ineffective by failing to move to suppress evidence obtained pursuant to the search warran t. As stated by the State in its brief, due to the dearth of evidence contained in the record, this court is unable to know whether the officer’s statement in the affidavit is false or whether the assistant district attorney was mistakenly provided with incom plete or ina ccurate informa tion by a third party.

We are unable to grant Petitioner relief on this issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

In addition to his complaint that trial counsel was ineffective for not filing a motion to suppress evidence seized pursuant to the search warrant, Petitioner asserts th at his trial cou nsel wa s ineffective for the follow ing reaso ns:

(a) Counsel failed to raise the issue of deficienc y of the indic tment.

(b) Counsel failed to call any witnesses or present any proof to rebut the State’s case to offer a plausible defense, or to prese nt a reasonab le doubt in the m inds of the jury.

-11- (c) Trial counsel was ineffective in making his opening statement which allowed the trial court to permit introduction of prejudicial evidence ag ainst petitioner.

(d) Trial counsel failed to object to statements made by the prosecutor during closing arguments which Petitioner classifies as “pros ecutorial m iscondu ct.”

Regarding the first ground of ineffective assistance of counsel, we have previo usly determined in this opinion that the indictm ent was not deficie nt.

Therefore, trial counsel cannot be said to have be en ineffec tive for failing to raise an issue tha t is found to be withou t merit.

In post-conviction relief proceedings, Petitioner has the burden of proving the allegation in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The factual findings of the trial c ourt in hearings “are c onclusive on appeal unless the evidence preponderates aga inst the judgm ent.” State v. Buford, 666 S.W .2d 473 , 475 (T enn. C rim. App . 1983) (c itations om itted).

In reviewing the Pe titioner’s Sixth Amen dment claim of ineffective assistance of counsel, this cou rt must d etermine whether the advice given or services rendered b y the attorney are within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5). To preva il on a claim of ineffective counsel, a petition er mu st sho w that c ouns el’s representation fell below an objective standard of reasonableness and that th is performance prejudiced the defense. There must be a reasonable probability that but for counsel’s errors, the result of the proc eeding s would have be en differen t.

Strickland v. Wa shington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d -12- (1984). While Petitioner does not identify in this brief the names or proposed testimony of any potential witnesses other than himself, he did testify at the hearing that he wanted the exec utive directo r of the YM CA an d his wife to testify to c ertain matters at the trial and/or sentencing hearing. However, even though the witnesses could apparently have been eas ily subpoenae d to testify at the post-con viction hearing, Petitioner did not present the testimony of any witness whom he says trial counsel should have produced at the trial. As stated by our court in Black v. S tate, S.W .2d 752, 757 (Tenn. Crim . App. 1990 ):

When a petitioner contends that trial coun sel failed to discover, interview, or present witnesses in support of his defense, these witnesses should be presented by the petitioner at the evidentiary hearing. As a general rule, this is the only way the petitioner can establish that (a) a material witness existed and the witness could h ave been discovered but for counsel’s neglect in his investigation of the case, (b) a kno wn witne ss was not interview ed, (c) the fa ilure to discover or interview a witness inured to his prejudice, or (d) the failure to have a k nown w itness pre sent or call the witness to the stand resulted in the denial of critical evidence which inured to the prejudice of the petition er. It is eleme ntary that neit her a trial judge nor an appellate court can specu late or gue ss on the question of whether further investigation would have revealed a material witness or what a witnes s’s testimony might have b een if in troduc ed by d efens e cou nsel.

The same is true regarding the failure to call a known witness.

Petitioner argues that because trial counsel asserted in his opening statement that “the State is going to try to convince you , merely by his [Pe titioner] presence in this circ le, that h e sho uld be found guilty,” that this opened the door for evidence to be admitted at trial which would have otherwise been inadmissible.

There is no proof in the record that the complained-of evidence would not have been adm issible absent the opening statem ent by trial counsel. In fact, the trial cou rt found in its me mora ndum opinio n and order dism issing the petition for p ost- conviction relief that “[t]he issue of the Petitioner’s intent was at the very center of this case and would remain so whatever was said in the opening statement. ‘Other -13- crimes’ evidence would still have been adm issible. ” W e agre e with th e trial co urt’s conclus ion.

Finally, Petitioner asserts that his trial counsel was ineffective by not objecting to statements made by the prosecutor during closing arguments which Petitioner classifies as “p rosecutorial m isconduct.”

The issue of “prosecutorial misconduct” during the State’s closing argument was raised by Petitioner’s appellate counsel on the direct appeal. Our court held that this issue was waived for failure to make an objecti on during the argument, but nevertheless stated:

Waiver notwithstanding, the appellant’s objection is without merit. The prosecutor did not state anything that was untrue. There was no evidence in the record that the appellant was simply purchasin g cocaine for his own use . The prose cutor may h ave mischaracterized the point of the defens e attorne y’s closing a rgume nt, but that is not prosecutorial misconduct. We see nothin g improper about the prosec utor’s state ment. T his issue is without m erit.

State v. Little, 854 S.W.2d at 651.

Even if we were to assume in arguendo that trial counsel was deficient in not objec ting to the p rosecu tor’s closing argument, he has failed to show any resulting prejudice . If the issue of p rosecu torial misc onduc t had be en obje cted to and properly raised on appeal, it is obvious that it would not have changed the outcome of the trial or resulted in a new trial for Petitioner.

MOTION TO RECUSE

-14- Petitioner argues that the trial c ourt wa s biase d aga inst him and s hould have recused himself after Petitioner filed a motion to recuse. Petitioner asserts that he currently has a civil lawsuit pending against the trial court seeking over $2,000,000.00 in dam ages . Furthe rmor e, Petitio ner co ntend s that th e trial court’s communication with the Department of Correction regarding whether Petitioner was entitled to work release was in excess of his judicial authority and demonstrated his bias aga inst the Pe titioner.

A motion for recusal based upon the alleged bias or prejudice of the trial court addresses itself to the sound discretion of the trial court and will not be reversed on appea l unless cle ar abus e appe ars on th e face of th e record . State v. Hines, 919 S.W .2d 573 , 578 (T enn. 19 95), cert. denied, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996) (citations om itted). A trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or when ever h is impartia lity can reasonably b e ques tioned. Id., (citing State v. Cash, 867 S.W.2d 741, 749 (T enn. C rim. App . 1993); Lacke y v. State, 478 S.W.2d 101, 104 (Tenn. Crim. A pp. 197 8)).

The trial court in this case stated that he was not prejudiced against the Petitioner in any way. In his order declining to recuse himself, the trial court stated as follows: The petition er has move d the u nders igned Judg e to rec use h imse lf relying on the fact that the petitioner has filed a damage action against the Judge in fede ral cou rt. The unde rsigne d was unaw are of th is Civil Rights lawsuit un til informed of it in the mo tion filed. Th e Cou rt, however, has no personal anim osity ag ainst th is petitio ner as he is one of thousands of c rimina l defen dants who h ave pa ssed throug h this Court in the last fourteen (14) years and m any crim inal de fenda nts file Civil Rights suits naming the State Trial Judge as the defend ant. The

-15- fact that he has filed a lawsuit against the Judge is not a deciding factor in whether the J udge recu ses himse lf. (citations omitted).

At the hearing for the petition for post-conviction relief, the trial court further reasoned that “lookin g at him [P etitioner] righ t now I do n’t reco gnize him. I d on’t have any feelings about him one way or the other . . . . But I didn’t even know I was sued until you told m e. W e still don ’t know it other than you told me.” On the issue of the cour t’s corresp onden ce with th e Department of Correction, Petitioner admitted at the hearing that the trial court actually sent the letter to the Department of Correction after receiving a request for his input regarding the appropriateness of work rele ase for the Petitioner.

As the Petitioner bears the burden of proving a clear abuse of discretion by the trial court in denying the motion to recuse himself, he has failed to include either a copy of the trial court’s letter to the Department of Correction or any verification of his civ il rights a ction a gains t the trial c ourt. T here is no indication in the record that the trial court, subjectively or objectively, had any bias or prejudice against the Pe titioner s uch th at his im partiality might be questioned. On the contrary, all the evidence within the record d emon strates the trial court’s ob jectivity in determ ining the o utcom e of Petition er’s mo tions and petition. Recusal is not required in the case sub judice based upon the facts before this court, and this issue is without m erit.

W e affirm the trial court’s order dismiss ing the pe tition for post- conviction relief.

____________________________________ THOMAS T. W OODALL, Judge -16- CONCUR:

(See sepa rate dissent) JOHN H. PEAY, Judge

___________________________________ L.T. LAFFERTY, Special Judge

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