Assigned on Briefs June 5, 2019
from the Criminal Court for Shelby County No. 14-02782 J.
Robert Carter, Jr., Judge
Petitioner, Dantario Burgess, appeals the denial of his
petition for post-conviction relief, arguing that the
post-conviction court erred in finding that he received
effective assistance of trial counsel. Following our review,
we affirm the denial of the petition.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
M. Matthews (on appeal), and Mark McDaniel, Jr., (at
hearing), Memphis, Tennessee, for the appellant, Dantario
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of
E. Glenn, J., delivered the opinion of the court, in which
Thomas T. Woodall and Timothy L. Easter, JJ., joined.
E. GLENN, JUDGE
2015, the Petitioner and two co-defendants, Rodriguez McNary
and Joseph Jones-Cage, were tried together before a Shelby
County Criminal Court jury on charges that arose out of their
participation with a fourth man, Benjamin Bohannon, in a
drive-by shooting of a group of people outside a Memphis
apartment complex. State v. Dantario Burgess, Rodriguez
McNary and Joseph Jones-Cage, No. W2015-00588-CCA-R3-CD,
2017 WL 417231, at *1 (Tenn. Crim. App. Jan. 31, 2017),
perm app. denied (Tenn. May 22, 2017). At the
conclusion of their trial, the Petitioner was convicted of
two counts of attempted first degree murder, one count of
aggravated assault, one count of reckless endangerment, one
count of employing a firearm during the commission of a
dangerous felony having been previously convicted of a
felony, and one count of possession of a firearm after having
been convicted of a felony involving the use or attempted use
of violence. The trial court sentenced him to an effective
term of fifty-five years in the Department of Correction.
Id. This court affirmed the Petitioner's
convictions and sentences, and our supreme court denied his
application for permission to appeal. Id.
direct appeal opinion provides the following overview of the
evidence at trial:
The evidence presented at trial established that on March 10,
2013, the Defendants and co-defendant Benjamin
Bohannon shot at a group of people at an apartment complex
and then fled in Mr. Jones-Cage's vehicle. The group
included Mr. Demarcus Thomas, Ms. Shanna Niter, Ms.
Niter's two-year-old son[, ] J.N., Ms. Brittany Hervery,
and Ms. Hervery's two-month-old daughter[, ] J.H. Mr.
Thomas sustained multiple gunshot wounds to the face and
head. He survived the shooting but requires twenty-four-hour
care as a result of the injuries. Ms. Niter sustained a graze
gunshot wound to her right side.
Id. (footnote omitted).
shooting was precipitated by co-defendant Jones-Cage's
anger over Facebook posts about him that were made by Ms.
Niter's cousin, Glen Hervery, Jr., who was known as
"Little Glen." Id. at *2, *8. At
approximately 10:30 to 11:00 a.m. on April 10, 2013, Mr.
Jones-Cage and his three co-defendants appeared at the
Hillview Apartments in a Ford Explorer that was registered to
Mr. Jones-Cage's father. Id. at *1, *7. Mr.
Jones-Cage was driving, the Petitioner was sitting in the
backseat on the passenger side of the vehicle, co-defendant
Rodriguez McNary was sitting in the backseat on the
driver's side of the vehicle, and co-defendant Benjamin
Bohannon was sitting in the front passenger seat. Mr.
Jones-Cage called out to ask Ms. Niter where "Little
Glen" was and to tell her to call him to the scene.
Id. at *1-6. Mr. Thomas told the men to leave
because there were ...