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Blackwell v. State2/12/2003
Blackwell, No. 02C01-9712-CC-00469, 1998 WL 902597, at *5. The petitioner argues that " y failing to properly request the appellate court to consider such a deposition under the applicable appellate rules, counsel's conduct fell below the standard for appellate counsel." The petitioner misconstrues this court's ruling.
Tennessee Rule of Appellate Procedure 13(c) observes that, on appeal, appellate courts "may consider those facts established by the evidence in the trial court and set forth in the record and any additional facts that may be judicially noticed or are considered pursuant to Rule 14." Rule 14 provides, "The Supreme Court, Court of Appeals, or Court of Criminal Appeals on its motion or on motion of a party may consider facts concerning the action that occurred after judgment." Tenn. R. App. P. 14(a) (emphasis added). In the instant case, the record clearly reflects that Dr. Shull's deposition was given prior to the petitioner's trial. Accordingly, as we previously observed, "this evidence was not contemplated by Rules 13(c) and 14 of the Tennessee Rules of Appellate Procedure." Blackwell, No. 02C01-9712-CC-00469, 1998 WL 902597, at *5. As such, we conclude that the petitioner's appellate counsel was not deficient in failing to gain this court's consideration of Dr. Shull's deposition. This issue is likewise without merit.
III. Conclusion
Based upon the foregoing, we affirm the judgment of the post-conviction court.
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