Kenneth Kirkwood v. State of Tennessee, W2016-00948-CCA-R3-PC

In December 2012 Kenneth Kirkwood was convicted by a Shelby County jury of especially aggravated robbery, especially aggravated kidnapping, using a firearm during a dangerous felony, and aggravated burglary; sentenced to an effective 45 years at 100% as a violent offender.
The convictions were affirmed on direct appeal and the Tennessee Supreme Court denied permission to appeal.
At trial the victim identified Kirkwood; Kirkwood had previously raised ineffective-assistance claims in his motion for new trial, alleging trial counsel appeared to fall asleep during trial. The trial court and this court rejected that claim on the merits.
Kirkwood filed a pro se post-conviction petition (later amended) raising ineffective-assistance claims again (failure to investigate, failure to subpoena certain officers, counsel sleeping), and alleged prosecutorial misconduct regarding the source of the victim’s identification.
The post-conviction judge (who had presided at trial) refused to receive evidence on ineffective-assistance claims, finding them previously litigated, allowed limited other evidence, then denied the petition for failing to prove allegations by clear and convincing evidence.
On appeal the Court of Criminal Appeals affirmed, holding the ineffective-assistance claim was previously determined on direct appeal and thus could not be relitigated in post-conviction proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the post-conviction court erred by denying a full hearing on ineffective-assistance claims	Kirkwood: some ineffective-assistance allegations (e.g., failure to investigate, failure to subpoena officers) were new and warranted a hearing	State: the ineffective-assistance claim was a single ground already raised in the motion for new trial and reviewed on direct appeal, so it is precluded from relitigation	Court: Affirmed — claim was previously determined and relitigation is barred
Whether claims about successor counsel or different specifics can be litigated in post-conviction despite prior direct-appeal ineffective-assistance argument	Kirkwood: variations and new factual allegations should be considered in post-conviction	State: prior litigation of the ineffective-assistance ground bars reassertion even with different particulars; successor-counsel exceptions inapplicable	Court: Affirmed — exceptions cited by Kirkwood didn’t apply; post-conviction relief properly denied

United States v. Cronic, 466 U.S. 648 (1984) (establishes circumstances under which counsel’s failure to act can give rise to a presumption of prejudice)