Jeremy McMillon v. State of Tennessee, E2020-01260-CCA-R3-PC

Background

In 2007 Jeremy McMillon was tried and convicted of first-degree premeditated murder for the shooting death of Larry Parks; the jury imposed life imprisonment and the conviction was affirmed on direct appeal.
At trial the State relied heavily on witness Corey Haden and evidence placing McMillon at the scene; gun used in the homicide was not recovered.
Trial issues included late-disclosed gunshot-residue (GSR) tests, fingerprints on a co-defendant’s vehicle, a .260 bolt-action rifle and a mask recovered from a third party’s property, and a later-discovered bullet from the victim’s clothing that was tested by the TBI.
McMillon filed a post-conviction petition alleging ineffective assistance of counsel (IAC) on many grounds (failure to investigate, to object to prosecutorial gang-themed remarks, to seek continuances, to obtain written consent for an alleged conflict, poor cross-examination, etc.) and a stand-alone claim of prosecutorial misconduct.
At the evidentiary hearing trial counsel testified about strategic choices (e.g., not calling unpredictable witnesses, objections he did make, plea discussions); the post-conviction court credited counsel and denied relief, finding no deficient performance or prejudice.
The Court of Criminal Appeals affirmed, concluding McMillon failed to prove both deficient performance and prejudice for IAC claims and that the prosecutorial-misconduct claim was waived for failure to raise it on direct appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
IAC — failure to object to prosecutor’s gang-/community-safety remarks	McMillon: counsel should have objected; remarks inflamed jury and anchored State’s theory	State: counsel may have made tactical choice; petitioner offered no proof counsel’s reasons were not strategic	Court: No relief — petitioner failed to show counsel’s performance was deficient or prejudicial; tactical decisions afforded deference
IAC — failure to object to irrelevant evidence (rifle and mask)	McMillon: rifle and mask were irrelevant and prejudicial; counsel should have objected	State: rifle showed access to weapons at third party’s property; counsel did object to mask at bench and challenged relevance	Court: No relief — counsel’s limited objections were reasonable; admission of rifle not shown to have altered outcome
IAC / conflict of interest — prior representation of witness (Eric Norman) and lack of written consent	McMillon: counsel’s previous representation of victim’s family / witness created an actual conflict and written consent was required	State: prior representation was remote, disclosed to court and petitioner, trial court found no actual conflict; written consent not required	Court: No relief — trial court found no actual conflict, petitioner did not show he would have withheld consent, counsel’s decision not to call witness was strategic
Prosecutorial misconduct (stand‑alone)	McMillon: State repeatedly appealed to community safety and gang prejudice, warranting relief	State: claim was not preserved in post-conviction and was raised on appeal only	Court: Waived — petitioner failed to raise prosecutorial-misconduct claim on direct appeal, so it is procedurally barred

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance: deficient performance and prejudice)
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) (competence standard for counsel in Tennessee)
Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980) (actual conflict required to presume prejudice)
Henley v. State, 960 S.W.2d 572 (Tenn. 1997) (post-conviction fact-findings entitled to deference)
State v. White, 114 S.W.3d 469 (Tenn. 2003) (description of actual conflict as compromising independent professional judgment)
Black v. State, 794 S.W.2d 752 (Tenn. Crim. App. 1990) (petitioner must present expected testimony of omitted witnesses to show prejudice)