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Bishop v. State

Court of Criminal Appeals of Tennessee, Jackson

November 15, 2016


          Assigned on Briefs September 7, 2016

         Appeal from the Criminal Court for Shelby County No. 08-07886 James M. Lammey, Judge

         The Petitioner, Courtney Bishop, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his convictions of first degree felony murder and attempted aggravated robbery and resulting effective sentence of life plus three years. On appeal, the Petitioner contends that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the postconviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

          Genna M. Lutz, Memphis, Tennessee, for the appellant, Courtney Bishop.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Samuel David Winnig and Tyler Parks, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.



         I. Factual Background

         On the night of August 19, 2008, Marlon McKay, a marijuana dealer, decided to rob Maurice Taylor, another marijuana dealer. State v. Bishop, 431 S.W.3d 22, 31 (2014), cert. denied, 135 S.Ct. 120 (2014). McKay explained his plan to the Petitioner, and they drove to Taylor's home. Id. About 11:00 p.m., Taylor, who was at home with his older brother, received a telephone call and went outside. Id. Taylor's brother heard a gunshot and found Taylor lying on his back in the yard. Id. Taylor died of a gunshot wound to the chest shortly thereafter. Id. Small plastic bags were on the ground near the victim's body, and $1, 163.75 in cash was in his wallet. Id. at 32. Investigators spoke with neighbors, who described seeing a light-colored sedan with tinted windows that had been circling the neighborhood at the time of the shooting. Id. Information obtained from the victim's cellular telephone then led investigators to McKay's girlfriend and her silver 1997 Mercury Cougar, and the police arrested McKay. Id. McKay told them that he "got cold feet" during the robbery and was walking back to the car when the Petitioner shot the victim. Id.

         On August 22, 2008, the police took the Petitioner to the Memphis Criminal Justice Center and obtained from a magistrate a "'48 hour hold' authorization-a procedure that involves a finding of probable cause to arrest, along with an assumption that if a suspect's alibi checks out, the suspect will be released within 48 hours." Id. During the Petitioner's second day in custody, he admitted to participating in the robbery but claimed the victim was "tussling" with him, which caused the gun to "go off." Id.

         In December 2008, the Shelby County Grand Jury indicted the Petitioner for first degree felony murder and attempted aggravated robbery. Id. at 33. The Petitioner moved to suppress his confession, claiming that it was the fruit of an illegal arrest because McKay's statement implicating him did not provide the police with probable cause for his arrest. Id. The trial court denied the motion, and the Petitioner proceeded to trial in April 2010. The Petitioner testified that he shot the victim accidentally, but the jury convicted him as charged. Id. at 33-34. The trial court sentenced him to consecutive sentences of life for the first degree murder felony conviction and three years for the attempted aggravated robbery conviction. Id. at 34.

         On direct appeal of his convictions, this court concluded that the trial court erred by denying the Petitioner's motion to suppress his statement and that the State failed to prove the corpus delicti of aggravated robbery because the only evidence introduced at trial that the Petitioner attempted to rob the victim was his own uncorroborated confession. Id. This court also sua sponte determined, "at least in part, " that the Petitioner's forty-eight-hour hold resulted in a violation under Gerstein v. Pugh, 420 U.S. 103 (1975). Id. at 43. Accordingly, this court dismissed the Petitioner's conviction for attempted aggravated robbery and remanded the case for a new trial on the modified charge of second degree murder. Id. at 34. The State appealed to our supreme court, and that court reversed, finding that the police had probable cause to arrest the Petitioner and that the Petitioner's confession did not require corroboration because the Petitioner repeated his confession under oath at trial. Id. Regarding the Gerstein violation, the supreme court held that this court erred by not addressing the issue as plain error, which would have resulted in a conclusion that the Petitioner was not entitled to plain error relief. Id. at 45. Thus, our supreme court reversed the judgment of this court and reinstated the Petitioner's convictions. Id. at 63.

         The United States Supreme Court denied the Petitioner's petition for writ of certiorari, and he filed a timely petition for post-conviction relief, alleging that he received the ineffective assistance of counsel because trial counsel failed to argue that his confession was coerced, that trial counsel failed to advise him properly about the ramifications of testifying, and that trial and appellate counsel failed to argue that his arrest was illegal because his forty-eight-hour hold was for an illegal purpose or furthering an investigation. The post-conviction court appointed counsel, and counsel filed an amended petition, additionally alleging that trial counsel ...

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