Fredrick Milan appeals the dismissal of his post-conviction relief petition, claiming ineffective assistance of trial counsel. He argues that his attorney failed to communicate a twenty-five year plea offer from the State and did not call key witnesses for his defense. The court thoroughly reviewed the record and concluded that Milan did not demonstrate that his trial counsel was ineffective, affirming the post-conviction court's judgment. Milan was previously convicted of aggravated assault and first-degree premeditated murder related to the shooting of Pamela Stafford. The evidence showed that after an argument, Milan shot the victim multiple times as she attempted to flee. Although he asserted the shooting was accidental, the conviction was upheld on direct appeal, with the aggravated assault conviction being reversed due to improper indictment consolidation. At the post-conviction hearing, Milan revealed he participated in an undercover drug operation while incarcerated, which resulted in multiple federal indictments.
Petitioner stated that his cooperation with federal authorities led to his placement in protective custody, and he anticipated a settlement offer for his murder case, preferring to avoid trial. He indicated that his trial counsel was aware of his undercover work, visited him in jail, and sought a written deal from federal agents, but no formal offer was received. During the sentencing hearing, federal agents informed him of a deal that had been established, and the prosecutor confirmed that a substantially reduced offer had been made.
During cross-examination of Officer Raymond Tilton, it was revealed that Petitioner’s undercover work was motivated by a promise from authorities to inform the judge about his cooperation to influence his sentencing. Although Petitioner inquired about the reduced offer with trial counsel, he was told that there was no significant discussion regarding it. Petitioner later learned from post-conviction counsel that the reduced offer was for twenty-five years and expressed that he might have accepted it if given the chance.
Further, Petitioner testified that federal agents indicated he could expect an offer of twelve years. He reported that trial counsel met with him only four times, totaling about two to two and a half hours, and showed a lack of preparedness for trial. Petitioner requested the postponement of the trial due to counsel's unpreparedness and the absence of subpoenas for expected witnesses. While trial counsel hired a private investigation firm, he chose not to call certain witnesses due to a lack of trust in them.
Petitioner recounted multiple meetings with an investigator from the company, during which statements were taken from several witnesses, including Lisa Milan, Mary Walker, his mother, and C.L. Pratt. He asserted that his defense would have centered on the shooting being accidental, arising from an argument with the victim, his girlfriend. Petitioner intended to have his wife, Lisa Milan, testify that he was not abusive and that the victim displayed violent tendencies. He noted that Ms. Milan had provided a written statement to the investigator.
Petitioner criticized his trial counsel for not calling Ms. Milan as a witness and suggested that Peggy Joyner, the mother of two of his children, should have been called to testify about his non-abusive nature, citing her knowledge of his relationship with the victim and her presence during arguments. He claimed trial counsel dismissed his inquiries about calling Ms. Joyner, citing strategic reasons.
Additionally, Petitioner mentioned Frances Harper, the mother of his oldest son, as another potential witness. He expressed frustration that the investigators did not inquire about the dynamics of his relationship with the victim, focusing instead on his work history and federal agents.
Petitioner wanted trial counsel to call Johnnie May Williams to testify about purchasing an engagement ring for the victim. He contested the State's portrayal of his relationship with the victim, asserting they were in counseling and that he had attended anger management classes. He requested that trial counsel contact Dr. Camilla Guy, their counselor, but was told she could not be located; he noted she was present when he turned himself in after the shooting.
He also desired testimony from Lieutenant Berryhill and Lieutenant Thompson, who had been friends for years and could attest to his character and relationship with the victim. Lastly, Petitioner wanted his step-father, C.L. Pratt, to testify about the circumstances surrounding the shooting, noting Mr. Pratt’s presence during the altercation.
Petitioner claimed that trial counsel failed to call crucial witnesses, Mr. Pratt and Ms. Butler, to testify during the trial. He requested that trial counsel contact the manager of Guns and Ammo to obtain receipts verifying the victim's purchase of two guns, one resembling the shooting weapon, but was told the manager was unavailable and that no continuance was sought to gather this evidence. Petitioner later presented a receipt showing the victim bought a Bersa Thunder and a Ruger pistol on June 29, 2002. He also wanted his mother, Eddie Milan Davis, to testify about his relationship with the victim and his sister to counter the State's claim regarding the victim not posting his bond for an aggravated assault charge, asserting that she could confirm the victim had indeed posted the bond.
During cross-examination, Petitioner acknowledged that he testified at trial, asserting that the victim had been the initial aggressor and abusive, although he was uncertain if he mentioned his prior assault on the victim that led to anger management classes. Many of the witnesses he wished to call were family members. His sister, Cosandra Milan, did testify about their relationship and incidents leading up to the murder but noted that she was not asked about Petitioner’s relationship with the victim during her testimony.
Petitioner indicated uncertainty about the plea offer from federal agents, which he learned about a year into the case, and acknowledged discussing a twelve-year offer with trial counsel, who insisted on having it in writing. Petitioner expressed regret that he did not fully understand the federal agents' limitations in making offers for the State. He believed that had all his witnesses testified, the trial's outcome could have been different. He was aware that trial counsel received investigative information from Inquisitor and later permitted them to send witness statements to Petitioner. While he did not know the exact terms of a potentially reduced plea offer (later disclosed as twenty-five years by post-conviction counsel), he felt he was not given a fair opportunity to consider any offers. Cosandra Milan testified she met with trial counsel twice but felt her insights about Petitioner’s relationship with the victim were not solicited. On the day of the murder, she described an argument between them after witnessing the victim in a compromising situation.
Ms. Milan provided testimony regarding her observations of the victim and Petitioner, stating she saw them removing boxes of alcohol from a house and placing them in an Escalade. She noted a prior history of violence from the victim towards Petitioner, including threats of physical harm and an incident where the victim expressed intent to purchase a gun. Despite this, Ms. Milan indicated that trial counsel did not inquire about these violent interactions or the victim's threats to kill Petitioner, nor did he inform her of the State's allegations of Petitioner’s abuse.
On the day of the murder, Ms. Milan testified that she dropped Petitioner off at his apartment, where she initially claimed she did not enter, but later corrected herself to state that they both went inside. Inside, she recounted a food smell and an argument that ensued between Petitioner and the victim, who was in lingerie. Ms. Milan's statements in a sworn affidavit conflicted with her testimony, as she had previously stated she did not go inside the apartment. She also indicated that the victim called Petitioner, claiming she was not at home, which was inconsistent with her earlier statements about the victim's emotional state upon Petitioner’s arrival.
Charles Pratt, Petitioner’s step-father, testified about the events leading up to the murder, confirming that he was supposed to accompany Petitioner to look at a truck and had spoken to the victim earlier that day. He saw Petitioner leaving the house with the victim around 8:00 to 9:00 a.m.
Mr. Pratt testified about an incident involving Petitioner and the victim, stating he observed the victim appearing to hit Petitioner when he arrived at a gas station. He noted that Petitioner seemed to be trying to distance himself from the victim. Following this, Mr. Pratt heard a gunshot and saw the victim exit the truck, yelling and cursing. After the victim fell, he heard another gunshot and witnessed Petitioner panic, pointing the gun at his own head before fleeing the scene. Mr. Pratt clarified that he did not see Petitioner shoot the victim or stand over her with the gun, and despite initially being a witness for the State, he indicated that parts of his written statement to the police were inaccurate. He met with trial counsel multiple times, believing his testimony would have contradicted other witnesses who claimed Petitioner shot the victim while standing over her. He confirmed that his preliminary hearing testimony supported probable cause for the murder charge against Petitioner.
Former Deputy Chief Anthony Berryhill testified about his long acquaintance with Petitioner, describing him as a cooperative witness in past cases. Berryhill stated that Petitioner turned himself in after the murder and was very cooperative during the investigation, although he could not recall whether Petitioner claimed the shooting was accidental. He noted that he would have testified in Petitioner’s defense if called. During cross-examination, Berryhill acknowledged he did not make any promises regarding the murder case's outcome and had limited knowledge of Petitioner’s past, including any history of domestic violence or felony charges.
Lieutenant Ronnie Thompson, a retired officer from the Memphis Police Department, testified about his long-standing relationship with Petitioner, whom he first met in 1988 or 1989 when Petitioner served as an informant to mitigate another criminal offense. Thompson expressed shock at Petitioner’s murder charge, asserting he had never witnessed any violent behavior from him. Prior to Petitioner’s surrender, Thompson sought to locate him at his mother’s house, later discovering Petitioner was afraid to turn himself in due to a SWAT team presence. Upon surrendering, Petitioner claimed to have accidentally shot the victim and was cooperative during the process.
Thompson later visited Petitioner in jail, unaware that Petitioner had also been working as an informant for a federal investigation involving jail officers and drug sales. He noted he was not contacted by Petitioner’s trial counsel to testify about Petitioner’s non-violent nature and cooperation, indicating he would have supported Petitioner at trial and recommended a reduced sentence.
Trial counsel recounted his representation of Petitioner, mentioning that he learned of Petitioner’s cooperation with police after a visit to another client in jail. He advised Petitioner against speaking with an undercover officer due to concerns of impropriety. Counsel relayed that Petitioner was informed by an officer that his murder case would be dismissed. He conducted an investigation and visited the crime scene but did not recall providing Petitioner with discovery materials, believing it inappropriate for such documents to circulate in jail. Counsel noted he would have conveyed any plea offers from the prosecution, confirming he would have communicated a twenty-five-year offer if it had been made.
Trial counsel indicated that he was unaware of any 'substantially reduced offer' made to Petitioner, asserting that if such an offer existed, he would have informed Petitioner. He expressed doubt about the possibility of an offer being made after the trial concluded. Counsel stated that Petitioner did not express any desire to plead guilty, instead believing the case would resolve favorably as previously promised. Counsel focused on the defense that Petitioner accidentally discharged a pistol while attempting to disarm the victim, noting that the issue of the primary aggressor was irrelevant to this defense.
Counsel revealed that due to Petitioner’s undercover work, he was relocated to a facility in Tipton County without counsel's knowledge, and attempts to meet with Petitioner were initially unsuccessful. Counsel eventually made several trips to meet him and believed he had met with Petitioner shortly before the trial. He stated he interviewed all known witnesses but was selective regarding their potential usefulness, typically avoiding family members as witnesses due to perceived bias. Counsel refrained from calling Petitioner’s wife, fearing negative jury perceptions regarding Petitioner’s personal life, especially given previous allegations of assault against her.
Counsel also did not call character witnesses, believing that evidence of Petitioner’s peaceful nature was irrelevant to the accidental nature of the shooting and would risk exposing unfavorable aspects of Petitioner’s past. He noted that character testimony could lead to undesirable inquiries by the prosecution about Petitioner’s history. Counsel did not recall discussions with Peggy Joyner, the mother of some of Petitioner’s children, and generally preferred to reserve character witnesses for the sentencing stage.
Character witnesses were deemed unnecessary for the trial to avoid giving the State more opportunities for cross-examination, which could introduce unfavorable evidence. The defense theory centered on an accidental shooting in a vehicle. Petitioner suggested calling attorney Larry Fitzgerald, but trial counsel believed this would not benefit the case. Petitioner also mentioned Johnnie May Williams to counter the State's claim regarding the victim's engagement to someone else, yet trial counsel doubted the relevance of her testimony given Petitioner’s ongoing marriage to Ms. Milan. He made a tactical decision against calling her.
Trial counsel considered the testimonies of Lieutenant Thompson and Deputy Chief Berryhill irrelevant, as they did not witness the incident. He recognized the potential testimony of Petitioner’s step-father, Charles Pratt, regarding Petitioner’s relationship with the victim but noted Pratt's credibility issues due to prior impeachment. Trial counsel was aware of the victim's firearm purchases and speculated that if the firearm was not the one used in the incident, he wouldn’t have called it as evidence unless it aligned with the defense theory of the victim retrieving the firearm from her purse.
He also discussed Cosandra Milan's testimony at the post-conviction hearing, which he deemed irrelevant to the defense. Trial counsel expressed regret over allowing Petitioner to testify, noting that Petitioner’s language during cross-examination negatively affected the jurors’ perceptions, shifting their body language and undermining the defense's position.
Trial counsel in the sentencing hearing asked Petitioner if he wanted to address the judge, to which Petitioner responded negatively and did not disclose a twenty-five year plea offer from the State. During cross-examination, trial counsel confirmed that a federal officer testified about Petitioner’s cooperation leading to the arrests of jail staff for drug smuggling. Counsel acknowledged stating in his opening that Petitioner was married to another woman, had purchased a Lexus and a ring for the victim, and described a struggle over a gun during which the victim hit Petitioner. Petitioner testified he shot the victim out of anger during their altercation. Trial counsel recognized the importance of demonstrating that the gun belonged to the victim and noted that shell casings from a .380 caliber pistol were collected at the crime scene. Although he had spoken to a gun shop about weapons purchased by the victim, he opted not to subpoena the shop owner due to concerns that the testimony could be harmful. Counsel admitted that Petitioner’s violent reputation was known, but he aimed to limit discussions of violence to focus on the incident in the car, believing it more prejudicial than beneficial. Post-conviction counsel questioned whether highlighting the victim's aggressiveness would have been relevant to the defense, to which trial counsel expressed uncertainty about his strategy but recalled trying to portray Petitioner as in love with the victim to counteract any violent narrative.
The prosecution repeatedly attempted to use witness testimony against the defendant, but trial counsel's strategy was to avoid confronting this issue and minimize its exposure to the jury. Trial counsel expressed that if the prosecution had discredited a witness, his approach would have been to either challenge the witness's credibility or highlight positive aspects of their character. He noted that Mr. Pratt, a witness who knew the petitioner, could not provide relevant testimony about the events inside the vehicle during the incident, as he only observed the situation from a distance at a gas station. Trial counsel decided against calling Mr. Pratt as a witness because his account was inconsistent with the defense theory and did not support the claim that the petitioner executed the victim.
Trial counsel acknowledged that discrepancies existed between Mr. Pratt's statements and the testimonies of other witnesses who claimed the petitioner shot the victim from a close range. Additionally, he recognized that the medical examiner's findings contradicted the assertion of close-range gunfire. Throughout the trial preparation, trial counsel faced challenges due to the petitioner's frequent relocations within the jail system and his misplaced belief that the murder charge would be dismissed due to cooperation with law enforcement. Trial counsel advised the petitioner against relying on informal deals, emphasizing the importance of proper legal representation in any discussions with authorities, which he did not facilitate, particularly concerning the FBI. He was aware that the petitioner was cooperating with federal authorities as an informant involved in drug activities within the jail.
Trial counsel instructed Petitioner not to engage with federal authorities without his presence and to provide contact information for any individuals attempting to speak with him. Counsel did not reach out to the FBI, U.S. Attorney’s Office, or the prosecutor regarding Petitioner’s cooperation. He was unaware of Petitioner’s informant status since 1988 and learned about the extent of Petitioner’s cooperation only shortly before or during the trial. Counsel did not know that Petitioner was the individual testifying against officers nor that Petitioner’s trial had been postponed pending the officers' prosecution. When informed about Petitioner’s relocation to different facilities, counsel prioritized Petitioner’s safety over negotiations. He was also unaware of any plea offers and stated he would have communicated any offer if it existed. Counsel expressed doubts about the utility of testimonies from Lieutenant Thompson or Deputy Chief Berryhill in either trial or negotiations. Regarding witness Charles Pratt, counsel believed Pratt could be easily impeached due to inconsistencies in his statements. On appeal, Petitioner claimed ineffective assistance of counsel for failing to present a twenty-five-year plea offer, not calling key witnesses, and inadequately questioning Petitioner’s sister. For post-conviction relief, Petitioner must demonstrate a constitutional right violation and bears the burden of proof by clear and convincing evidence. The post-conviction court's factual findings are conclusive unless contradicted by stronger evidence.
The court will not reassess evidence or witness credibility, as these determinations are reserved for the trial court. Findings of fact by the post-conviction court hold substantial deference and are treated as conclusive unless contradicted by overwhelming evidence. Legal conclusions are reviewed de novo without presumption of correctness. Ineffective assistance of counsel claims require the petitioner to demonstrate both deficient performance and resulting prejudice, as established in Strickland v. Washington. To show deficient performance, the petitioner must prove that counsel's actions fell below the standard expected of criminal attorneys. For prejudice, there must be a reasonable probability that the outcome would have differed had counsel performed adequately. Failure to prove either aspect results in denial of the claim. The court will not apply hindsight to evaluate counsel's decisions and will not overturn tactical choices made after sufficient case preparation. The petitioner argued that trial counsel failed to communicate a proposed twenty-five-year plea deal from the State and contended that his cooperation with law enforcement and prior undercover work should have led to a more favorable plea. He expressed uncertainty about the appropriate length of a plea agreement but believed it should be less than twenty-five years. The petitioner also claimed that his attorney should have effectively argued against his First Degree Murder conviction, presenting evidence of his cooperation during the proceedings.
While incarcerated on a murder charge, the petitioner collaborated with an FBI task force investigating corruption within the Shelby County Jail, serving as a key witness that led to multiple indictments of jail staff and inmates on various charges. He kept his cooperation secret, even from his attorney, and believed he had been promised that his charges would be dismissed or significantly reduced, potentially to a twelve-year sentence for the murder. His trial counsel discovered this collaboration inadvertently when he saw an undercover officer visiting the petitioner. Counsel expressed frustration over being kept out of the loop and instructed the petitioner to refrain from communicating with others without his presence.
During sentencing, there was mention of a "substantially reduced offer" that the petitioner did not accept, but details of this offer were unclear. The petitioner felt that his cooperation should have led to a more favorable outcome, and he chose to go to trial when he did not receive the expected offer. He attributed the jury's rejection of his defense, which claimed the victim was primarily at fault, to his attorney's performance. The burden of proof rested on the petitioner to demonstrate that his attorney's performance was deficient and negatively impacted his defense, as established in Strickland v. Washington.
The post-conviction court found that the petitioner excluded his attorney from communications with federal officers and could not blame the attorney for the lack of a favorable outcome. The court's findings were largely supported by the record, except regarding whether trial counsel communicated any plea offers, which counsel did not recall but stated he would have conveyed if there had been one. The petitioner had expressed confidence that the case would be dismissed due to his cooperation, claiming to expect a twelve-year offer, but trial counsel indicated he was unaware of any such offer, especially post-trial.
Petitioner did not express a desire to plead guilty instead of going to trial, nor did he definitively indicate he would have accepted a twenty-five-year plea offer if it had been made. During the post-conviction hearing, Petitioner ambiguously suggested he might have accepted such an offer, but he failed to provide clear evidence that the State had made this offer, and he did not call any witnesses, including the prosecutor, to support his claims. The record indicates that Petitioner had multiple attorneys, but there was no evidence that a plea offer was communicated to them.
Petitioner also alleged that trial counsel was ineffective for not calling specific witnesses, including his step-father and law enforcement officers, and for inadequately examining his sister during the trial. The post-conviction court noted that the trial strategy focused on portraying the shooting as an accident, based on Petitioner’s police statement, rather than claiming self-defense, which could have introduced damaging evidence against him.
Witness testimony established that Petitioner shot the victim multiple times, contradicting his claim of an accidental shooting. Trial counsel was supported by a private investigator, and believed that calling certain witnesses would not benefit the defense. Petitioner’s assertion regarding the relevance of a gun store employee's testimony about the victim purchasing a gun was dismissed, as the defense centered on the accidental nature of the shooting. During the hearing, a witness, C.L. Pratt, testified that he heard the shooting differently than recorded by police, claiming inaccuracies in the official statement against Petitioner. Overall, Petitioner has not established ineffective assistance of counsel or shown entitlement to relief.
Trial counsel decided against calling Mr. Pratt as a witness for the Petitioner because he had previously testified for the State during the Preliminary examination. At the Post-Conviction Hearing, two retired Memphis Police Department officers testified about their history of using Petitioner as a "snitch" and confirmed they were instrumental in his arrest following the shooting. They expressed surprise at the murder charge, stating they had not seen a "violent side" of Petitioner and were unaware of his prior convictions for Assault. The trial court's findings were upheld, indicating no preponderance against the record.
Trial counsel explained his general reluctance to use family members as witnesses, believing juries might view their testimonies as biased. He did not call anyone to testify about Petitioner’s peaceful nature, arguing it was irrelevant to the defense theory that the shooting was accidental. Counsel noted the victim had purchased firearms, which he acknowledged could have been significant, but ultimately deemed it inconsequential given the defense strategy.
The Petitioner maintained that he accidentally shot the victim after taking the gun from her. However, the evidence showed Petitioner shot the victim multiple times, including after she was unarmed and on the ground. Counsel had communicated with Petitioner’s sister, Cosandra Milan, who claimed she had not witnessed abuse by the victim, a statement she later contradicted at the post-conviction hearing. Milan's evolving testimony included details about the nature of Petitioner and the victim's relationship, which conflicted with her trial statements and a sworn affidavit.
Ms. Milan's sworn affidavit indicated that the victim informed the Petitioner on the day of the murder that she was not at home and appeared upset about not being able to find him. She contradicted her own affidavit by stating in post-conviction testimony that the victim was angry upon Petitioner’s arrival, while her affidavit claimed Petitioner was the one who was angry because the victim wore lingerie. Ms. Milan acknowledged the affidavit's inaccuracies and stated that it did not assist Petitioner’s case.
Trial counsel believed that Petitioner’s step-father, Charles Pratt, could have provided testimony regarding their relationship, but noted that Pratt did not witness the shooting. Pratt's credibility was undermined by his prior police statement, which claimed he saw Petitioner point a gun at the victim. Although Pratt heard two shots, this was contradicted by other witnesses and the medical examiner, who stated the victim was shot at least three times. Trial counsel determined it was strategically sound not to call Pratt as a witness due to credibility issues.
Trial counsel also recalled that Petitioner claimed to have turned himself in after the murder, but he did not remember Petitioner requesting the officers, Lieutenant Thompson and Deputy Chief Berryhill, to testify. Thompson testified that Petitioner only called to surrender after the SWAT team arrived, and while the officers could have testified to Petitioner’s non-violent behavior, trial counsel felt their testimony would not support the defense strategy. Ultimately, the court found no evidence of ineffective assistance of counsel or resulting prejudice to Petitioner, affirming the judgment of the post-conviction court.
