Assigned on Briefs June 6, 2017
from the Criminal Court for Shelby County No. 11-04050 Lee V.
Petitioner, Herman McKinley, filed a petition for
post-conviction relief, alleging that his trial counsel was
ineffective by failing to preserve his right to allocution at
the sentencing hearing and by failing to ask the trial court
to recuse itself because it signed the Petitioner's
arrest warrant. The post-conviction court denied relief, and
the Petitioner appeals. Upon review, we affirm the judgment
of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Mogy (on appeal) and James Jones (at hearing), Memphis,
Tennessee, for the Appellant, Herman McKinley.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney
General; and Alanda Dwyer, Assistant District Attorney
General, for the Appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
Petitioner was indicted for the first degree premeditated
murder of Toby Gladney; the attempted first degree
premeditated murder of Jimmie Williams; the aggravated
assault of Williams; the aggravated assault of Laquita
Turner; employing a firearm during the commission of a
dangerous felony; and the unlawful possession of a handgun by
a convicted felon. State v. Herman McKinley, No.
W2012-00050-CCA-CCA-R3-CD, 2013 WL 3193415, at *4 (Tenn.
Crim. App. at Jackson, June 20, 2013). On direct appeal, this
court stated that the Petitioner's
multiple convictions in this case arose from two separate,
although related, shootings which occurred on September 23,
2009, at the Claiborne Holmes Apartments in Memphis. Multiple
witnesses testified about the two shootings, and certain
discrepancies were noted in the various testimony. However,
the general testimony offered, with the exception of the
[Petitioner's], established that the [Petitioner]
approached Laquita Turner and Jimmie Williams outside Ms.
Turner's apartment and began an argument because his
girlfriend refused to exit the apartment. After leaving the
scene, the [Petitioner] returned with a gun and fired one
bullet between Ms. Turner and Mr. Williams, although neither
party was wounded. The [Petitioner] then left the area again,
and police were called to the scene to investigate. After the
police left the scene, the [Petitioner] returned and was
heard threatening Mr. Williams. He approached the area where
Mr. Williams was assisting a neighbor with his automobile and
began firing the gun. In the fray, seventeen-year-old Toby
Gladney was shot and later died as a result of a gunshot
wound to the back.
Id. at *1. The jury convicted the Petitioner of the
lesser-included offense of second degree murder in count one
and of the remaining offenses as charged. Id. at *4.
The trial court sentenced the Petitioner to forty years at
one hundred percent for second degree murder; forty years at
thirty-five percent for attempted first degree murder;
fifteen years at forty-five percent for each aggravated
assault; fifteen years at one hundred percent for employing a
firearm during the commission of a dangerous felony; and six
years at forty-five percent for possession of a handgun by a
convicted felon. Id. The trial court ordered the
sentences to be served consecutively, for a total effective
sentence of one hundred and thirty-one years. Id. On
direct appeal, this court affirmed the Petitioner's
convictions and sentences. Id. at *6-11.
the Petitioner filed a petition and an amended petition for
post-conviction relief, alleging, in pertinent part, that his
trial counsel was ineffective by failing to preserve the
Petitioner's right to allocution at the sentencing
hearing and by failing to ask the trial court to recuse
itself because it had signed the Petitioner's arrest
post-conviction hearing, trial counsel testified that he was
appointed to represent the Petitioner in 2011, approximately
one and one-half years prior to trial. Trial counsel recalled
that the case originally was set in Division X, which had a
"very, very long wait period for trials" but that
the trial court in Division VII ...