1 In the di rect appeal , th is court spel led th e petit ioner ’s name “Marc us” La mon t W illoughb y. The postconviction pleadings spell his fi rst name “Markus.” We use the latter in this opini on. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs S eptem

ber 10, 200 2 MARKUS LAMO NT WILLOUGHBY v. STA TE OF TENNESSEE 1

Direct Appeal from the Circuit Court for Madison County No. C-00-117 Clayburn Peeples, Judge by Interchange

No. W2002-00096-CCA-R3-PC - F iled November 1, 2002

The petitioner appeals the t rial court 's deni al of p ost-c onvi ction relie f. He ar gues tr ial co unsel 's failure to investigate and present an alibi defense deprived him of the effective assistance of counsel at his orig inal tria l. We find n o merit to h

is argu ment and a

ffirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G. R ILE Y , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D A VID G

. H AYES , JJ., joined. Ramsdale O'DeNeal, Jr., Jackson, Tennessee, for the a ppellant, Markus Lamont Willoughby

. Paul G. Summers, Attorney Gene ral andReporter ; Brade

n H. Bouc ek, Assist

ant Attor ney Genera l; James G. (Jerry) Woodall, District Attorney General; and

Al fred Ly

nn Earls, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
The petitioner was convicted of first degree felony murder , es pe ci al ly a ggr av at ed bu rg la ry, conspiracy

to commit especially ag gravated burglary , and theft over $500, and received an effective life sentenc e. On dir

ect appe al, th e especia

lly a ggra vated bur glary convicti on was re duced to aggravated

burglary ; otherwise, the judgments were affirmed. State v. Mo ntez Antua n Adams, Ricardo Maxwell, and Marcus Lamont Willoughby , C.C.A. No. 02 CO1-9709-CC-00352, 1998 Tenn. Crim. App. LEXI

S 903, at ** 1-2 (Ten

n. Crim. App. Sept. 1, 1998, at Jackson), perm. to app. denied (Tenn . 1999). The proof at trial established the petitioner, who was a juvenile whe n the2 The post-conviction re cord ind icates the petitioner’s case was tran sferred from j uven ile cour t to circu it court. -2- crimes occurred, 2 and his co-defendants were committing a burglary

in the home of vi ctim Anton io Givens when Givens returned home at appr oximately midnight ; the petitio ner shot a nd killed G

ivens. Id. at **5-8.

POST-CONVICTION RELIEF HEARING During the post- convicti on relief hearing, the petitione r testified trial co

unsel met with him only once, two day s prior to t

rial, to di scuss his c ase. He stated he told his attorney he w as not at the crime scene. T he petitio ner said

he told histrial attorney that L awanda

Reeves, Rashad Re eves, Lakesha Dougla s, and Ta

nis Bowe rs could c onfirm hisalibi. The petitione r said his attorney

told him they could not prese

nt Tanis Bowers' testimony because Bowers had a

prior criminal record.
Peti tion er's trial attorney testified a t the post-conviction hearing that he met with the petitioner as many as four t imes to disc

uss the case. He stated

he obtained full discovery from the district a ttorney and inter viewed a ll the witnesses listed on the indictment. The attorney stated he spoke with a

potentia l alibi witness, Latasha S tarks , but she was unabl e to co nfirm the pe titi oner's alibi. The attorney stated the petitioner

told him he was with his girlfriend, Lawa nda Reeves, at the time the crime was committed. The attorney said his efforts to contact Reeves were un success ful. He said the petitioner did not tell him Tanis Bowers was an alibi witness.
The petitioner's mother, Linda Jean Willoughby , testified she met with trial counsel approxima

tely seven to ten times in his office to discuss her son's case. She said she knew of at least three occasions when trial counsel met with the petitioner. She also stated she met Lawanda Reeves one time, which was prior to trial, in an effort to get Ree ves to come to court. Tanis Bowers testified the defendant was at B owers' home on the day of the c

rime, but that the defendant left around dusk. He said the defendant returned later when B owers was asleep and woke him up by knocking on his window, but he did not know what time that occurred.
The petitio ner argue s his trial counsel did not provide him effective assistance because he failedto adequately inve stigate the case and presen t an a libi defense. He contends trial counsel failedto adequa

tely interview him abou

t the facts of his ca se prior to trial, and he failed to interview and present the testimony of a libi witnesses provided to h im by the pet itioner. In deny

ing the petition for post-conviction relief, thepost-conviction court found trial counsel's performanc e "met and excee ded the st a ndards required of attorney s in criminal cases." The post-conviction court specific ally

found, inter alia , counsel me t with the petiti oner sev eral time s, discuss ed the ca se in detail with the petitioner, met with all potential witnesses he could locate, and used a competent trial st ra te gy.-3- INEFF ECTIVE ASSISTA NCE OF C OUNSEL
Since the petitioner alleged ineffective a ssistance of counsel, it was petitione r’s burd en in the post-conviction court to prove the allegations by clear and convincing e

vidence in order to get relief. Tenn. Code Ann. § 40-30-210(f). We are required to affirm the post-c onvi ction court ’s fin dings unless the petitioner proves that the evidenc e preponderate s again st those findings. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).
In order to prove ine ffectiv e assista

nce of c ounsel, th

e petition er must prove (1) that c ounse l's performa nce was deficien t, and (2) th at the defici ency was pr ejudi cial i n term s of ren derin g a reasona ble probabil

ity t hat the r esult of th

e tr ial was unreliable or the proceeding s were fundame ntally unfair. Strickland v. Washington , 466 U.S . 66 8, 6 87, 104 S. Ct . 20 52, 206 4, 8 0 L. Ed. 2d 674 (1984)

. “When a petitioner contends that trial cou nsel fail e d to discover, interview, or present witnesses in support of his defense, these witnesses shou ld be presented by the petitioner at the evidentiary

hearing.” Black v . State , 794 S.W.2d 752, 757 ( Tenn. Crim. App. 199 0); see also Scott v. State , 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the only way the petitioner can establish that (1) a material witness existed who could have been discovered

but for counsel’s neglig ent i nvestigation of the case; (2) a known witness was not intervie wed; (3) the failure to discover or inter view the w itn ess caus ed him pre judice; o r (4) the failure to prese nt a known witness r

esulted in th e denial of critical evidence which caused the pe titioner prejudice. Black , 794 S.W.2d at 757. Neither the trial court nor this court can speculate on what a witness’s te st im on y might

have been if introduced by counsel. Id.

ANALYSIS
In the instant case, the petitioner testified trial cou nsel met w ith him only

one time to

discuss his ca se , a nd th is me et in g o cc ur re d t wo da ys prior to tr ial. However, the testimony of trial counsel and the petiti oner' s mother indicated trial cou nsel met w ith the pe

titioner a t le ast three time s. Further, the ir testimon y established trial counse l met with the petitioner's mother on numerous occasions to discuss the p etitioner' s case. T he evide nce doe s not prep onderat e aga inst the po stconviction court’s fin ding that trial counsel met with the petitioner on several occasions and discusse d the cas e with him in detail.
The petitioner further contends trial counsel ineffectively failedto present the testimony of alibi witnesses Law anda Reeves, Rashad Reeves, Lakesha Douglas, and Tanis Bowe rs. Trial cou nse l testified the petitioner

told him he was with Lawanda Reeve s at the time the crime was committed. The attorne

y st ated he a ttempted t o contac t her, but

was unab le to reach her. Furth er, th e peti tion er's mothe r testifie d she met Reeves on o nly one occ asion and

tried to g et her to

come to c ourt; it is apparent that her eff

orts were also unsuccessful. The evidence does not preponde rate against the post-conviction court’s finding that trial counsel met with all witnesses he was able to locate. The-4-

pet itioner did not present the testimony of L awanda Reeves, Rashad Reeves, or L akesha Dougla s during the post- convicti on hearing. We a re unabl e to assum

e their testimony

would have supported an alibi defense for the petitioner. See Black , 794 S.W.2d at 757.
Trial counsel testifiedthe petiti oner did not advise him Tanis Bowerswas an a libi witnes s. The post-conviction court implicitly accr edited this testimony. Thus, trial counsel was not

deficient in failing to contact him. Further, while Tanis Bowe rs did testify

at the post-conviction hearing, he was unable to confirm that the petitioner was with h im near midn ight, the approximate time the crimes were committed. Thus, the petitioner has failed to establish prejudice.
Given these facts, we cannot conclude the post-conviction court er red in deny

ing postconviction relief. We agree with the post-conviction court that the evidenc e indicates the defendant was not denied the effective assistan ce of counsel. Therefore, we aff irm the judgment of the trial court.

_____________________ ___________

_____ _ JOE G. RILEY, JUDGE