Assigned on Briefs August 2, 2016
from the Criminal Court for Shelby County No. 11-02364 James
C. Beasley, Jr., Judge
Osby ("the Petitioner") was convicted after a jury
trial of especially aggravated kidnapping, attempted second
degree murder, aggravated robbery, and employing a firearm
during the commission of a felony. He sought post-conviction
relief alleging ineffective assistance of counsel. The
post-conviction court denied relief. On appeal, we affirm the
judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Carlissa Shaw, Memphis, Tennessee, for the appellant, Bennie
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Karen Cook, Assistant District
Attorney General, for the appellee, State of Tennessee.
L. Holloway Jr., J., delivered the opinion of the court, in
which John Everett Williams and Camille R. McMullen, JJ.,
L. HOLLOWAY JR., JUDGE
Factual and Procedural Background
court provided a detailed summary of the testimony presented
at trial in the opinion from the Petitioner's direct
appeal. State v. Bennie Osby, No.
W2012-00408-CCA-R3-CD, 2012 WL 5381371, at *1-4 (Tenn. Crim.
App. Nov. 2, 2012), perm. app. denied (Tenn. Mar. 5,
2013). To summarize, the Petitioner and another person
approached Marlon Toney and Eric Moody, pointed guns at them,
and demanded that they exit Mr. Moody's truck. The
Petitioner and his companion ordered Mr. Toney and Mr. Moody
to lie on the ground and searched them. They then
"marched" Mr. Toney and Mr. Moody into Mr.
Toney's backyard, where they "ordered the victims
onto the ground a second time and 'started duct-taping
[their] hands behind [their] backs.'" Id.
The Petitioner and his companion took money and a cellular
phone from the victims and struck Mr. Toney in the head with
their pistols. The Petitioner and his companion fled, but Mr.
Toney followed them, so the Petitioner and his companion
fired their guns at Mr. Toney. At that time, Mr. Toney
observed the Petitioner fall to the ground and then run away
limping. Id. at *1-2.
Bowman testified that she heard gunshots on the night in
question. Within seconds of hearing the gunshots, the
Petitioner knocked on her door and told her that he had been
shot. She observed gunshot wounds to his left shoulder and
right hip. The Petitioner told her that he had been shot by
unknown assailants. Ms. Bowman called the police, and the
Petitioner was transported to the hospital. Police
investigated the Petitioner's claim that he was shot by
an unknown person, but officers found no blood, shell
casings, bullets, or any other evidence that a shooting had
taken place at the location where the Petitioner claimed he
was shot. Additionally, "only a single shooting was
reported on that night, and [the Petitioner] was the
victim." Id. at *3-4.
jury convicted the Petitioner of two counts of especially
aggravated kidnapping, two counts of aggravated robbery,
attempted second degree murder, and employing a firearm
during the commission of attempted second degree murder.
Id. at *4. The trial court imposed an effective
sentence of life without the possibility of parole plus 105
years' incarceration. Id. This court affirmed
the Petitioner's convictions on appeal. Id. at