Assigned on Briefs February 7, 2017
from the Criminal Court for Shelby County No. 10-02856 James
C. Beasley, Jr., Judge
petitioner, Henry Bates, was convicted by a Shelby County
jury of aggravated robbery, burglary of a building, and
vandalism of $1000 or more, for which he received an
effective sentence of forty-two years' imprisonment. He
now appeals the post-conviction court's denial of relief
arguing that trial counsel was ineffective in failing to
present an alibi witness at trial. Upon our review, we affirm
the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
A. Timmerman, Bartlett, Tennessee, for the
Defendant-Appellant, Henry Bates.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Counsel; Amy P. Weirich, District Attorney
General; and Stacy McEndree, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J., and J. Ross Dyer, JJ.,
CAMILLE R. McMULLEN, JUDGE
early morning hours of July 29, 2009, a white pick-up truck
crashed into the front window of a Mapco Express in Memphis,
Tennessee. The impact shook the building and dislodged the
drink machine and the ATM. Two of three men jumped out of the
truck, ran inside the store, and yelled, "Don't
move, you won't get shot." One of the men, later
identified by the store clerk as the petitioner, grabbed the
ATM, put it in the bed of the truck, and they left. The
petitioner had a pair of pantyhose over his head, but they
were loose and did not disguise his appearance. State v.
Henry Bates, No. W2012-02718-CCA-R3-CD, 2014 WL 823402,
at *1-2 (Tenn. Crim. App. Feb. 28, 2014). As a result, the
petitioner was subsequently charged and convicted of
aggravated robbery, burglary of a building, and vandalism of
$1000 or more. He received an effective sentence of forty-two
years' imprisonment. This court affirmed his convictions
and sentence on direct appeal, and the Tennessee Supreme
Court denied the petitioner's application to appeal on
June 24, 2014. Id. On September 23, 2014, the
petitioner filed a pro se petition seeking post-conviction
relief and the appointment of counsel. On October 1, 2014,
the post-conviction court appointed post-conviction counsel,
and on February 20, 2015, an amended petition for
post-conviction relief was filed.
following proof was adduced at the January 8, 2016
post-conviction hearing. At the time of the hearing, Emma
Jones had been romantically involved with the petitioner
"on and off" over a twelve-year period. She
testified that she was with the petitioner on the night of
July 29, 2009. She said she remembered that night, five and a
half years prior to the hearing, because it was her birthday.
We got together around 6:00 p.m., that evening, and we had
went out. And after we, you know, stayed out for a certain
amount of time, he came over my house and he did stay all
night until the next morning.
her sister, and the petitioner went to "Little Box"
café, ate, danced, talked, had fun, and then went back
to Jones's place around midnight. She said the petitioner
slept in her bed that night and was there the next morning.
Jones did not know the petitioner had been arrested for the
instant offenses until two-weeks after her birthday. She said
his relatives told her about the charges. She also testified
that she was never contacted by trial counsel to testify at
trial as an alibi witness.
petitioner testified that he was innocent of the convictions
in the instant case. He claimed he told trial counsel that he
was with Jones on the night of the offense, and trial counsel
said he would contact her. He recalled being with Jones on
July 29, and said they went out to celebrate her birthday. He
denied being present at the Mapco, and stated that he
"knew of" Deljuan Williams, but "didn't
just know him." He denied being present at
Williams's auto shop where the ATM was taken after the
robbery and cut open. He said he gave Jones's name to
trial counsel and that his defense hinged on her trial
testimony. As his trial date approached, the petitioner asked
trial counsel about Jones, and trial counsel did not explain
why she had not appeared. Upon being asked by the post-conviction
court if the petitioner told Jones to come and talk to trial
counsel, the petitioner replied, "No, I never did."
Asked why, the petitioner replied, "I thought he would
get in touch with her."
counsel, an attorney with the Shelby County Public
Defender's Office for over twenty years, testified that
he was assigned the petitioner's case and investigated
all of the information he was given. He did not recall being
advised about Jones as an alibi witness. Significantly, trial
counsel testified that "the clerk went into work the
evening of the 28th around 10:00 I think. And the
truck smashed into the store sometime in the early morning
hours like 2:00 or something of that nature." Even if
trial counsel had been given Jones's information, he did
not believe her testimony would have made a difference in the
petitioner's case because the police responded to the
robbery at 2:45 a.m., or in the early morning hours on July
29. Trial counsel's defense theory was twofold: (1) he
challenged the store clerk's identification of the