Assigned on Briefs September 7, 2016
from the Criminal Court for Shelby County No. 08-07886 James
M. Lammey, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court is Affirmed.
M. Lutz, Memphis, Tennessee, for the appellant, Courtney
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
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
MCGEE OGLE, JUDGE
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.
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.
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.
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.
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 ...