7. Post-conviction trial counsel Wilkins rendered IAC by: (a) failing to challenge Judge Carter's qualification to serve as the thirteenth juror under State v. Ellis, 453 S.W.3d 889 (Tenn. 2015) (ECF No. 1-8 at PageID 76, 78-79);

The trial court's determination regarding whether to grant a new trial as thirteenth juror is a distinct inquiry from determining whether the evidence is legally insufficient to sustain a verdict. State v. Ellis, 453 S.W.3d 889, 898 (Tenn. 2015). A finding that the evidence is legally insufficient - that no rational trier of fact could have returned a conviction - results in an acquittal.

The Tennessee Supreme Court observed that "[a]s to the successor judge's analysis of the trial record, this Court is in the same position to evaluate the transcript and exhibits as is the successor judge," and indicated that "a de novo review of the successor judge's analysis of the trial record is appropriate." State v. Ellis, 453 S.W.3d 889, 909 (Tenn. 2015). In a parental termination decision involving a successor judge deciding a case without hearing live testimony, this court observed that, while deference is normally afforded to a trial court's findings, where those findings are based upon the trial transcript and exhibits and not observation by the successor judge of live testimony, this court "may draw our 'own conclusions with regard to the weight and credibility' of the evidence."

(quoting State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App. 1996)). State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995). In determining the weight of the evidence, "'The trial judge does not have to view the evidence in the light most favorable to the prosecution; he may weigh the evidence himself as if he were a juror and determine for himself the credibility of the witnesses and the preponderance of the evidence.'" State v. Ellis, 453 S.W.3d 889, 899 (Tenn. 2015) (quoting State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)). Because "[a]ppellate courts are ill-suited . . . to assess whether the verdict is supported by the weight and credibility of the evidence . . ., the accuracy of a trial court's thirteenth juror determination is not a subject of appellate review."

Additionally, our supreme court has stated "a criminal defendant's right to have the trial court sit as the thirteenth juror is not constitutional in nature." State v. Ellis, 453 S.W.3d 889, 900 (Tenn. 2015). As such, the Petitioner has failed to show that application of the amended version of Tennessee Code Annotated section 17-1-305 violated his due process rights.

This court must "review a successor judge's decision about whether he can act as the thirteenth juror under a de novo standard of review." State v. Justin Ellis, ___ S.W.3d ___, No. E2011-02017-SC-R11-CD, slip op. at 22 (Tenn. Jan. 13, 2015). "[T]he key factor for a successor judge to consider in her analysis of whether she can act as the thirteenth juror is the extent to which the credibility of one or more material witnesses is actually a significant aspect of the case."