                                                                                     04/26/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs April 3, 2018

             MARQUEZ WILLIAMS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Shelby County
                  No. 11-06687      James M. Lammey, Judge
                    ___________________________________

                          No. W2017-01175-CCA-R3-PC
                      ___________________________________

The petitioner, Marquez Williams, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel at trial. Following our review, we affirm the denial of the petition.

     Tenn. R. App. P. 3 as of Right; Judgment of the Criminal Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
ROBERT L. HOLLOWAY, JR., JJ., joined.

Ernest J. Beasley, Memphis, Tennessee, for the appellant, Marquez Williams.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                                       FACTS

      A. Trial Proceedings and Direct Appeal

       The petitioner was convicted of aggravated robbery for which he received a
sentence of 11 years in the Department of Correction. The petitioner subsequently
challenged the sufficiency of the evidence supporting his conviction and the sentence
imposed on direct appeal. This Court summarized the underlying facts leading to the
petitioner’s conviction, as follows:

          This case stems from the armed robbery of a pizza delivery driver in
      Memphis. At trial, Maurice Steele (“the victim”) testified that he moved to
Memphis in November 2010, after completing military service in Fort
Hood, Texas. After moving, he was employed by Domino’s Pizza as a
delivery driver. The victim recalled that around midnight on May 24, 2011,
he received a call to deliver an order of two large pizzas and a two liter
bottle of Sprite to a house on Patte Ann Drive. When he arrived at the
location, the victim did not see anyone, and it did not appear that anyone
was at the residence. The victim parked his car on the street in front of the
house and walked up the driveway carrying his pizza delivery bag. About
halfway up the driveway, the victim was approached from behind by two
men, who yelled for him to “stop right there.” When the victim turned
around, the men demanded the pizza order and the victim’s money.

       The victim testified that both assailants appeared to be young,
African-American men. He recalled that the first man had on a dark hoodie
with a purple bandana “underneath his nose down” and either dark blue or
black jeans and the second man wore a light-colored hoodie and white
bandana over his nose and the bottom of his face. The first man was
holding a Beretta 9mm pistol -- the same type of gun the victim used in the
military. The victim also noticed that the front site post on the assailant’s
gun was orange in color. The victim testified that, when he realized that he
was being robbed, he was shocked and afraid.

        The victim recalled that the man with the gun grabbed the delivery
bag out of his hands and then demanded cash. The victim denied having
any money, but the assailant made him empty his pockets and took $90
from the victim. The assailant then asked the victim if there was anything
else in his car. After the victim assured him there was not, the assailant
instructed the victim to get in the car and leave. The victim testified that
once he got into his car, it sounded like the assailant fired the weapon into
the air. The victim drove away, and once around a corner, he called police
and the pizza store.

        The victim identified the [petitioner] as the assailant with the gun.
He explained that although it was dark outside, he was able to see the
[petitioner]’s face by the lights from an elementary school across the street.
The victim additionally stated that there was a motion sensor light on at the
house next door.

      A couple of days after the robbery, the police asked the victim to
view a photo lineup. In this photo spread of six pictures, the victim was
unable to identify anyone. A few days later, the victim returned to the
                                    -2-
police station to look at a second photo lineup. Before looking at the photo
spread, he was instructed not to pick out anyone unless he was 100 percent
sure of the identification. The victim testified that he looked carefully at
the pictures and took his time to “make sure that [he] was picking the
correct person.” When looking at the photographs, the victim used a piece
of paper to cover the bottom half of the faces so that he could focus on the
top portion of the individuals’ faces. After looking at the photos, the victim
picked out the [petitioner]’s picture and circled it. He also wrote on the
bottom of the photo spread, “[The petitioner] was the first man with the
gun. He pulled the gun on me and demanded the pizza order and the
money I had. After I gave him what he wanted, he told me to drive off.”
The victim then signed and dated the form.

        The victim testified that he was 100 percent sure that the [petitioner]
was one of the men who had robbed him. The victim explained that he
observed the [petitioner] for “a minute or so” during the robbery and he
was able to positively identify the [petitioner] based upon a scar above the
[petitioner]’s eyebrow, the spacing of his eyes, and the size of the
[petitioner]’s nose. During trial, the victim pointed out to the jury where on
the [petitioner] he had seen the scar.

        On cross-examination, the victim explained that, at the preliminary
hearing, the [petitioner]’s attorney asked him if the gunman’s bandana was
“about midway of the nose,” and he replied, “yes, about.” He also
acknowledged that, during the same hearing, he testified that the gunman
had a scar going through his eyebrow. The victim explained that he meant
that the suspect had a scar above the eyebrow and he did not intend to say
that the scar went through the eyebrow.

        Kevin Ware testified that on May 24, 2011, he, the [petitioner], and
three other individuals -- Nakia Jackson, D’Jarvis Parker, and the
[petitioner]’s brother, Marquell Wade -- planned to rob the delivery driver
from Domino’s Pizza in order to obtain money to buy drugs. Mr. Ware
explained that the group began planning the robbery about 10:00 p.m. while
on Patte Ann Drive, a street by Graceland Elementary School. Ms. Jackson
used Mr. Ware’s cell phone to call Domino’s and place an order for two
pizzas and soda to be delivered to a house on Patte Ann Drive. Mr. Ware
explained that the group picked the address for the delivery because it did
not appear that anyone lived there. Mr. Ware testified that the [petitioner]
had a black, 9 millimeter gun with an orange site on it and, when the
delivery person arrived, the [petitioner] was supposed to take the pizza and
                                     -3-
the driver’s money. Mr. Ware was supposed to be the look-out during the
robbery and warn the [petitioner] if he saw police.

       After Ms. Jackson placed the order, the group sat in a park across
from the house where the pizza was to be delivered and waited because
they did not want to be seen at the house. While sitting at the park, a car
pulled up, shining its lights towards the group. Afraid that it might be the
police, the group ran to Mr. Parker’s house. However, the [petitioner] and
Ms. Jackson eventually returned to the house on Patte Ann Drive.

       The [petitioner] and Ms. Jackson later returned to Mr. Parker’s
house with pizza and soda, and the group ate the pizza behind a house. Mr.
Ware said he did not see any cash. The [petitioner] told Mr. Ware that,
when the victim pulled up, he made the victim give him the pizza and then
told the victim to get in his car and leave. The [petitioner] also said that he
shot his pistol into the air before the victim drove off.

       Mr. Ware recalled that, at the time of the robbery, the [petitioner]
was wearing dark clothes, including a black shirt and blue shorts, while Ms.
Jackson was wearing white shorts and a white shirt. Mr. Ware testified
that, before the robbery, he saw the [petitioner] and Ms. Jackson put on
bandanas as masks. He believed that one bandana was white and one was
red. Mr. Ware also confirmed that he heard a gunshot around the time of
the robbery.

       Mr. Ware admitted that he pled guilty to aggravated robbery in
connection with the offense. Mr. Ware stated that he had talked to police
about the robbery with the hope that it would help him out, but he denied
that he had a deal with the State in exchange for his testimony.

        On cross-examination, Mr. Ware acknowledged that he did not tell
the police that he heard a gunshot on the night of the robbery or that the
[petitioner] told him about the robbery when it was over. Mr. Ware agreed
that, after his arrest, police told him that he was looking at a lot of charges
and that it could help his situation if he talked to them.

       On redirect, Mr. Ware explained that before he gave his statement to
authorities, the police had discovered that the Domino’s Pizza order was
placed from Mr. Ware’s cell phone. Mr. Ware stated that he had thought it
might be to his advantage at that point to tell the police the truth about what
had happened.
                                     -4-
        Sergeant Albert Bonner of the Memphis Police Department testified
that after he was assigned to investigate the robbery that occurred on Patte
Ann Drive, he contacted Domino’s Pizza and obtained the phone number of
the caller who had placed the delivery order to that location. Sergeant
Bonner explained that the phone number belonged to a relative of Mr. Ware
and, based upon this information, Mr. Ware became a suspect.

        Sergeant Bonner brought Mr. Ware to the police department to talk
to him about the offense. Sergeant Bonner acknowledged telling Mr. Ware
that, if he cooperated, he would talk to prosecutors to let them know he
cooperated. He told Mr. Ware that it could help him “down the road,” but
he denied making any promises to him. After speaking with his mother,
Mr. Ware decided to give a statement to Sergeant Bonner about the offense.
Sergeant Bonner explained, “[Mr. Ware] advised us that he, along with
others, had planned to rob the pizza man and once the pizza man got there
they were going to take the pizza, go back to a different location and they
were going to eat the food at that time.” Mr. Ware told the sergeant that the
[petitioner], Ms. Jackson, Mr. Parker, and Mr. Wade had also been
involved in the robbery. After developing Mr. Ware as a suspect, Sergeant
Bonner prepared a photo lineup to show the victim, which included Mr.
Ware’s photograph. However, the victim was unable to make a positive
identification from this first photo array.

        Sergeant Bonner testified that he also interviewed the [petitioner]
about his involvement in the offense. After being read his Miranda
warnings, the [petitioner] signed an advice of rights form and indicated that
he wanted to talk to Sergeant Bonner. According to Sergeant Bonner, the
[petitioner] made several inconsistent statements during the interview. For
example, the [petitioner] knew all of the details of the robbery but claimed
that he did not participate in it and was not there. Nonetheless, the
[petitioner] admitted that he ate some of the food taken during the robbery.
The [petitioner] claimed he was at his girlfriend’s house at the time of the
robbery, and he received a phone call from Mr. Ware, Ms. Jackson, and Mr.
Parker after the robbery had taken place. After hearing that the group had
committed a robbery, the [petitioner] told his girlfriend about the robbery
and decided to meet up with the group. The [petitioner] claimed that, when
he got to the group’s location, “everyone was just talking about what
happened” and that was how he learned the details of the robbery.



                                    -5-
               Sergeant Bonner testified that he followed up on the [petitioner]’s
       statement by talking to the [petitioner]’s girlfriend. The [petitioner]’s
       girlfriend stated that “she did not know what [the petitioner] was talking
       about, that he did not tell her anything about a robbery.” Sergeant Bonner
       then placed the [petitioner]’s photograph in a lineup for the victim to view.
       Before showing the photo spread to the victim, Sergeant Bonner told the
       victim to take his time and that the person who robbed him may or may not
       be in the lineup. Because the suspects had worn bandanas over parts of
       their faces, Sergeant Bonner also told the victim that he could take a blank
       sheet of paper and put it across the bottom of the faces while looking at
       them. The victim identified the [petitioner] and circled his picture.
       Sergeant Bonner then had the victim write down “what that person did to
       him” at the bottom of the lineup.

               On cross-examination, Sergeant Bonner testified that the victim
       estimated the first assailant’s height as five-nine or five-ten. The arresting
       officer listed the [petitioner]’s height as five-seven, which the officer likely
       obtained from the [petitioner]’s driver’s license. Sergeant Bonner recalled
       that the victim also told him that the first assailant had “something above
       the eyebrow, a discoloration or something” but could not recall if the victim
       said it was a scar. Sergeant Bonner explained that he placed the
       [petitioner]’s photograph in the lineup based upon both Mr. Ware and Mr.
       Wade telling him that the [petitioner] was involved in the robbery. After
       selecting the [petitioner] in the photo lineup, the victim told Sergeant
       Bonner that he was “pretty sure” of the identification. Based upon this
       testimony, the jury convicted the [petitioner] of aggravated robbery.

State v. Marquez Williams, No. W2013-02764-CCA-R3-CD, 2015 WL 12978633, at *1-
4 (Tenn. Crim. App. Jan. 27, 2015) no perm. app. filed. After its review, this Court
affirmed the petitioner’s conviction and sentence. Id. at *8.

       B. Post-Conviction Proceedings

        The petitioner timely filed a pro se petition for post-conviction relief, alleging,
among other things, trial counsel was ineffective for failing to call an alibi witness and
that he was “not properly informed about the amount of evidence the State had against
him. . . .” Following the appointment of counsel, the post-conviction court held a hearing
on the motion, during which only the petitioner and trial counsel testified.

      Trial counsel testified that he has been licensed to practice law since 2010. At the
time of the petitioner’s trial, trial counsel was associated with the attorney originally
                                            -6-
hired by the petitioner. Initial counsel asked trial counsel to help with the petitioner’s
case, and as initial counsel dealt with some health issues, trial counsel became even more
involved in the petitioner’s case. According to trial counsel, the petitioner was free on
bond pending trial, and trial counsel, as well as initial counsel, met with the petitioner and
his grandmother several times at trial counsel’s office. Trial counsel also stated that the
State offered the petitioner a plea deal with a sentence of eight or nine years.

        Trial counsel acknowledged he was aware of a potential alibi witness, Sherrie
Walker. Ms. Walker was the petitioner’s girlfriend at the time and claimed the petitioner
was with her all day the day of the robbery. However, Ms. Walker refused to come to
trial counsel’s office to meet with him. Additionally, Ms. Walker’s story did not match
completely with the petitioner’s version, and trial counsel feared putting her on the stand
and allowing the State to question her about the “gaps” in her timeline.

       When questioned about discovery in the petitioner’s case, trial counsel testified
they filed a motion for and received discovery from the State. He also noted the
petitioner would have been provided a copy of discovery if he had requested such.

        On cross-examination, trial counsel testified that the petitioner was present for a
preliminary hearing. According to the proof, the petitioner was the gunman in the
robbery, and Kevin Ware was the lookout. Mr. Ware testified at trial as a witness for the
State, and trial counsel was able to cross-examine him about inconsistencies between his
statement to police and his trial testimony. Additionally, the victim, while unsure
initially, identified the petitioner as the individual who robbed him.

      According to trial counsel, the petitioner’s defense was that he was not present
during the robbery and only knew details of the robbery because his brother, who was
involved, told him about the robbery.

       The petitioner testified he hired initial counsel and was never told that trial counsel
would be taking over his case. He also stated that he requested a copy of the discovery
provided by the State, but his attorneys would not allow him to have a copy. He was
unaware the victim identified him as the gunman and never saw the “police affidavit.”
Thus, the petitioner had no idea about the strength of the State’s case when he rejected
the State’s nine-year plea offer. Had he been better informed, the petitioner would have
accepted the State’s plea offer.

       On cross-examination, the petitioner maintained he did not participate in the
robbery and only knew some of the details because his brother shared them with him.
Despite his claim that he did not receive discovery or know the extent of the evidence
against him, the petitioner admitted trial counsel discussed the case with him and that he
                                            -7-
met with trial counsel several times. When asked directly what trial counsel could or
should have done differently to make sure he was fully advised about his case, the
petitioner responded, “Um-hum – somethin’ – I don’t know.” When asked to “tell the
court how your lawyers did not do their job,” the petitioner simply stated, “I believe that
they could have gave me – I could have got a lesser sentence.” The petitioner, however,
did not explain what trial counsel should have done to accomplish this goal.

        At the conclusion of the hearing, the post-conviction court denied the petition
stating,

               Well, I agree with the State. I haven’t seen any proof of deficient
       performance at all, not at all. As a matter of fact, remembering the case, I
       remember how good a job [trial counsel] did in this. And apparently [initial
       counsel] as well. He managed to have the bond reduced where he could get
       out and assist in his defense. It was reduced from seventy-five to thirty
       thousand dollars on March 20 of [20]12; and then the case wasn’t tried until
       -- it looks like September of [20]13, so I don’t see any -- I don’t know how
       -- he says, “Well, I didn’t receive discovery.” Well, I don’t believe that.

               You know, I don’t find him to be credible at all. If he’d wanted
       discovery, I’m sure they would have given it to him, and he probably did.
       But assuming they didn’t actually hand him discovery, he knew exactly
       what was going on here -- he knew exactly what he was charged with. He
       went through a preliminary hearing. He went through a bond hearing. And
       when he set the case for trial, he turned down the nine-year offer and set it
       for trial. And he knew exactly what he was doing.

              So, being that there was no deficient performance, how could there
       be prejudice? I still haven’t heard. He said, “Well, I could have got a better
       offer.” I don’t know -- I don’t know if I would have taken the offer. Who
       knows. I mean, hindsight is twenty/twenty, I guess.

               And [trial counsel] also managed to make sure that he didn’t get the
       maximum. I could have given him twelve years at eighty-five percent
       rather than eleven. I haven’t seen any prejudice whatsoever.

              I find [trial counsel’s] testimony very credible, whereas I find [the
       petitioner’s] testimony incredulous, and you may step out. I’m going to
       show [the petition] denied.

This timely appeal followed.
                                           -8-
                                        ANALYSIS

        On appeal, the petitioner asserts the outcome of his case would have been different
absent the deficiencies of trial counsel. The petitioner argues trial counsel was
ineffective for failing to call an alibi witness known to trial counsel and that he would
have pled guilty had he been fully informed about the strength of the State’s case. The
State contends the petitioner has failed to establish either allegation and is, therefore, not
entitled to relief. Following our review of the record and submissions of the parties, we
affirm the judgment of the post-conviction court.

       The petitioner bears the burden of proving his post-conviction factual allegations
by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of
fact established at a post-conviction evidentiary hearing are conclusive on appeal unless
the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500
(Tenn. 1996). This Court will not reweigh or reevaluate evidence of purely factual
issues. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate
review of a trial court’s application of the law to the facts is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issue of ineffective assistance of counsel presents mixed questions of fact and law. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews the
petitioner’s post-conviction allegations de novo, affording a presumption of correctness
only to the post-conviction court’s findings of fact. See id.; Burns v. State, 6 S.W.3d 453,
461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the standard for determining ineffective assistance of counsel applied in federal cases is
also applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.



                                            -9-
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

        Initially, the petitioner contends that trial counsel was ineffective for failing to call
the petitioner’s girlfriend, Sherrie Walker, as an alibi witness. We note, however, that the
petitioner failed to call his alleged alibi witness during the post-conviction hearing.
When a petitioner contends trial counsel failed to discover, interview, or present
witnesses in support of his defense, the petitioner must call those witnesses to testify at an
evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This
is the only way the petitioner can establish that:

              (a) a material witness existed and the witness could have been
       discovered but for counsel’s neglect in his investigation of the case, (b) a
       known witness was not interviewed, (c) the failure to discover or interview
       a witness inured to his prejudice, or (d) the failure to have a known witness
       present or call the witness to the stand resulted in the denial of critical
       evidence which inured to the prejudice of [p]etitioner.

Id. Even if a petitioner is able to show counsel was deficient in the investigation of the
facts or the calling of a known witness, the petitioner is not entitled to post-conviction
relief unless he produces a material witness at his post-conviction evidentiary hearing
who “could have been found by a reasonable investigation” and “would have testified

                                             - 10 -
favorably in support of his defense if called.” Id. at 758. Without doing this, the
petitioner cannot establish the prejudice requirement of the two-prong Strickland test. Id.

        Other than the petitioner’s own testimony, which the post-conviction court found
not credible, the petitioner failed to call Ms. Walker or offer any proof regarding what
she would have testified to had she been called at trial. Moreover, trial counsel testified
that Ms. Walker refused to meet with him prior to trial and that they were concerned
about putting her on the stand because her timeline did not match that of the petitioner’s
for the day of the robbery. This Court will not reweigh the credibility determinations of
the post-conviction court, nor will it second guess the tactical and strategic decisions of
trial counsel made after adequate trial preparation. Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). The petitioner has failed to carry his burden of proving trial counsel’s
failure to call Ms. Walker as an alibi witness prejudiced the outcome of his trial and,
therefore, is not entitled to post-conviction relief.

        The petitioner’s final claim on appeal is that counsel was ineffective for failing to
sufficiently advise him of the strength of the State’s case. He argues had he been fully
advised of what he was facing at trial he would have accepted the State’s plea offer.
However, as noted by the State, the petitioner failed to offer an explanation of trial
counsel’s deficiencies other than state, “Um-hum – somethin’ – I don’t know” and “I
believe that they could have gave me – I could have got a lesser sentence.” The
petitioner did, however, corroborate trial counsel’s testimony that trial counsel met with
the petitioner and discussed the case with him. Trial counsel also testified he was
provided with discovery from the State and would have provided the petitioner with a
copy of the discovery if he requested it. Finally, the post-conviction court, in addition to
accrediting the testimony of trial counsel, noted that the petitioner was present for the
bond hearing as well as a preliminary hearing and, thus, the petitioner “knew exactly
what he was doing.”

       Based on the proof presented, we affirm the post-conviction court’s determination
that the petitioner failed to meet his burden of proof and is not entitled to relief.
Accordingly, the petitioner is not entitled to relief.

                                     CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.




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   ____________________________________
    J. ROSS DYER, JUDGE




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