IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs at Knoxville April 27, 2021

MICHAEL BAILEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

Nos. 09-02887, 09-02888, 09-02889, 09-02890, 09-02891, 09-02892, 09-02893

Lee V. Coffee, Judge

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No. W2019-02152-CCA-R3-PC

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The pro se Petitioner, Michael Bailey, appeals the denial of his petition for post-conviction 

relief in seven cases that resulted in his convictions for eight counts of aggravated robbery 

and one count of aggravated assault and an effective sentence of two consecutive life terms 

without the possibility of parole. Based on our review of the record and the parties’ briefs, 

we affirm the judgment of the post-conviction court. 

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

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which TIMOTHY L. EASTER 

and J. ROSS DYER, JJ., joined.

Michael Bailey, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. FACTUAL BACKGROUND

In April 2009, the Shelby County Grand Jury indicted the Petitioner in seven cases 

with one count of aggravated assault and eight counts of aggravated robbery based on 

offenses committed in October and November 2008 against different victims. The 

Petitioner initially pled guilty to the offenses in exchange for an effective sentence of thirty

years at sixty percent as a career offender. The Petitioner later filed a petition for writ of 

habeas corpus, alleging that the sentences were illegal because he should have been 

09/13/2021
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sentenced at one hundred percent. The writ of habeas corpus was granted and the 

convictions vacated. 

The Petitioner was subsequently convicted by a jury of aggravated robbery in case 

number 09-02888 and sentenced by the trial court as a career, repeat violent offender to 

life without the possibility of parole. The Petitioner pled guilty in the six other cases, 09-

2887, 09-2889, 09-2890, 09-2891, 09-2892, and 09-2893, to seven counts of aggravated 

robbery and one count of aggravated assault, and was sentenced by the trial court for each 

aggravated robbery conviction to life without the possibility of parole. The trial court 

ordered the life sentence in case number 09-02888 served consecutively to one of the other 

life sentences, for an effective sentence of two consecutive life terms without the possibility 

of parole. On direct appeal of case number 09-02888, the Petitioner challenged the 

sufficiency of the evidence and the imposition of consecutive sentencing. This court 

affirmed the judgment of the trial court, and our supreme court denied the Petitioner’s 

application for permission to appeal. State v. Michael Bailey, No. W2014-02517-CCAR3-CD, 2016 WL 269851, at *1 (Tenn. Crim. App. Jan. 11, 2016), perm app. denied (Tenn. 

May 9, 2016).

On October 2, 2015, the Petitioner filed a pro se petition for post-conviction relief, 

followed by an amended petition after the appointment of counsel, and, still later, a pro se 

“Supplemental Amended Petition for Post-Conviction Relief.” In the amended petition 

filed by appointed counsel, the Petitioner alleged that his trial counsel was ineffective for

failing to adequately investigate the case or meet with and communicate with the Petitioner. 

He further alleged that his guilty pleas were unknowing and involuntary because they were 

coerced by trial counsel, were entered at a time when the Petitioner had not taken his 

necessary psychiatric medication, and resulted in sentences that were no better than the 

sentences the Petitioner would have received had he been convicted at trial. In the original 

and supplemental pro se petitions, the Petitioner alleged that trial counsel coerced him into 

pleading guilty by telling him she could not win at trial and leading him to believe that his 

guilty pleas would result in a repeat of his original thirty-year sentence rather than the

consecutive life without parole sentences he received. 

Prior to the July 1, 2019 evidentiary hearing, the Petitioner waived his right to 

counsel. Consequently, he represented himself at the evidentiary hearing, with his postconviction counsel appointed as elbow counsel. The Petitioner began his examination of 

trial counsel by asking if she was familiar with presentence reports and complaining about 

her failure to contest the presentence report’s allegedly false information that he had given 

a statement to police. After seeking clarification about what the Petitioner was asking, trial 

counsel testified that she did not have a presentence report to review with the Petitioner 

before the Petitioner’s trial or guilty pleas because a presentence report is not ordered by 

the trial court until after conviction. She reminded the Petitioner that she had reviewed 
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with him his extensive criminal history, which was part of the information contained in the 

presentence report. 

After arguing with the post-conviction court and trial counsel about the statutory 

language and when the report should have been prepared, the Petitioner began complaining 

that the trial court sentenced him on the day he was convicted and later resentenced him in 

the same case. The Petitioner asserted that his second sentencing for the same case violated 

double jeopardy. Because the Petitioner was so unclear, the prosecutor attempted to clarify 

the Petitioner’s argument, explaining to the post-conviction court that she believed the 

Petitioner was referring to the fact that a sentencing hearing to determine whether the life 

sentences required by law would be served consecutively or concurrently was held after 

the Petitioner’s entry of his guilty pleas. 

When asked by the post-conviction court whether he understood, the Petitioner 

responded that he did not, expressed his belief that someone had altered the judgment 

forms, and continued to make confusing arguments about issues with his presentence 

report. In another attempt to clarify the Petitioner’s argument, the prosecutor recited the 

procedural history of the case, including that the State had offered a plea-bargained 

sentence of thirty years at one hundred percent in exchange for the Petitioner’s guilty pleas 

to all the offenses after the Petitioner’s original convictions were vacated, but the Petitioner 

rejected the offer. The prosecutor said the presentence report prepared after the Petitioner 

was convicted erroneously reflected the Petitioner’s original thirty-year sentence for the 

offenses. 

After further argument with the post-conviction court about whether the trial court 

and trial counsel were responsible for errors in the presentence report, the Petitioner 

continued with his direct examination of trial counsel. Trial counsel testified she was 

appointed to represent the Petitioner after he filed his pro se petition for writ of habeas 

corpus. She stated that she tried unsuccessfully to explain to the Petitioner what was 

obvious to all the attorneys, which was that the technically illegal thirty-year sentence at 

sixty percent was to his benefit. She informed the Petitioner that because the law provided 

for one hundred percent service, the Petitioner’s thirty-year sentence at only sixty percent 

for all eight aggravated robberies was “a good deal,” especially given the fact that he was 

a repeat violent offender, which would require that he serve a life sentence without parole 

if he were found guilty on any one of the eight matters that were then set for trial. 

Trial counsel identified a letter she had sent to the Petitioner in which she recorded 

her explanation of the situation, as well as the Petitioner’s demand for a twenty-year 

sentence. Trial counsel could not recall having told the Petitioner that she was angry at 

him for insisting on a trial. She said, however, that it sounded reasonable to her that she 
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might have asked the Petitioner why he was insisting on a trial when the discovery in the 

case, combined with her experience, indicated that the outcome would not be good. 

Trial counsel testified that she was aware that the Petitioner had been prescribed 

psychiatric medication. Her understanding was that the medication was necessary, as it 

helped the Petitioner make decisions and enabled him to participate in his defense. Trial 

counsel disputed the Petitioner’s claim that he had been sentenced twice for the same 

offense, testifying that all the parties were aware at the time the Petitioner entered his pleas 

that the sentence would be life without parole and that the only real issue, reserved for the 

sentencing hearing, was whether the sentences would be ordered to run concurrently or 

consecutively. She took exception to the Petitioner’s repeated assertions that she wanted 

him to plead guilty, stating that she did not have “a dog in the hunt.” 

On cross-examination, trial counsel testified that she had been in private practice 

for approximately seven years, focused exclusively on criminal law, at the time she 

represented the Petitioner. At the time of her appointment, the case had been transferred

to the trial court in Shelby County for further proceedings following the habeas court’s 

ruling that the sentence was illegal. Trial counsel explained that the Petitioner had filed 

his habeas corpus petition in another jurisdiction, which was where he was incarcerated, 

and that court could not resentence him. She said she first talked with the Petitioner about 

not following through with the habeas petition and instead attempting to persuade the trial 

court to leave the sentence as it was originally imposed. When the Petitioner declined that 

route, the prosecutor made an offer of thirty years at one hundred percent. Trial counsel 

agreed the prosecutor had made it clear that the State would be filing notice that the 

Petitioner was subject to a life sentence without parole and that the prosecutor did indeed

file that notice when plea negotiations broke down.

Trial counsel recalled that the Petitioner had undergone a mental evaluation and was 

found competent to stand trial. She said that she was not surprised at the Petitioner’s pro 

se appearance at the evidentiary hearing, as the Petitioner was always very interested in the 

disposition of his case and confident in his abilities to represent himself. She was aware 

that the Petitioner’s medical records reflected that he had refused his medication at different 

points during his incarceration. She was also aware that the Petitioner had been found to 

be malingering at times. 

Trial counsel acknowledged that the State’s proof in the case that went to trial 

included the victim’s identification of the Petitioner as the perpetrator and the Petitioner’s 

confession. Additionally, the Petitioner was found in possession of a weapon that matched 

the victim’s description of the gun used in the robbery. She said she had hired an 

investigator, reviewed discovery, and was prepared for trial; however, the State’s case was 

very strong and the defense case very weak. She testified that the State’s proof in the cases 
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that resulted in guilty plea convictions was similarly strong, with victim identifications of 

the Petitioner as the perpetrator. 

Trial counsel testified that she did not advise the Petitioner to plead guilty, as she 

would never be part of such a serious decision. Instead, she presented the options to the 

Petitioner and allowed him to make his own decision. She recalled that the trial court 

informed the Petitioner that he would be sentenced to life in prison without the possibility 

of parole and that it would be served at one hundred percent. She also recalled that the 

Petitioner responded that he understood and that he was satisfied with her representation. 

The Petitioner refused the opportunity for redirect examination of trial counsel, 

informing the post-conviction court that he had no further questions because the postconviction court would just interrupt him. When asked if he had any further proof to 

present, the Petitioner stated that he wanted the prosecutor who had handled the guilty plea 

hearing as a witness because she continually referred to him as a “three strikes offender” 

rather than as a “repeat violent offender.” The Petitioner asserted that he could not legally 

be sentenced as a repeat violent offender without the prosecutor’s having used those 

specific words. 

The post-conviction court denied the Petitioner’s request. The Petitioner then 

announced that he wanted to leave and that the post-conviction court should just deny the 

petition. The following exchange occurred: 

THE COURT: Judge - - she put you on notice, the Court put you on 

notice. It’s all contained in your guilty plea colloquy.

THE PETITIONER: Okay. I’m ready to go.

THE COURT: You don’t have any other proof you want to present?

THE PETITIONER: No. No. I’m straight. 

THE COURT: You’re ready to go? 

THE PETITIONER: Yeah. Just gone [sic] and deny it and let me go. 

THE COURT: Thank you, sir. You can step out, Mr. Bailey. 

In a lengthy oral ruling issued after the Petitioner’s premature departure from the 

courtroom, the post-conviction court found, among other things, that the Petitioner had 

abandoned his petition for post-conviction relief by walking out in the middle of the 

hearing, that the Petitioner had failed to present any proof to show that he received 

ineffective assistance of counsel but instead kept raising complaints that were irrelevant to 

the claims in his petition, and that the Petitioner deliberately tried to mislead the court and 

was not truthful in the details he presented about the case. The court further found that the 

Petitioner failed to show that his guilty pleas were unknowing and involuntary. 
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On November 4, 2019, the post-conviction court entered a lengthy and detailed 

written order denying the petition. The court found that the denial of the petition was 

justified not only by the Petitioner’s abuse of the judicial process by walking out of the 

hearing without presenting his own sworn testimony but also by the Petitioner’s failure to 

prove his allegations of ineffective assistance of counsel and involuntary and unknowing 

guilty pleas by clear and convincing evidence. With respect to the latter, the court 

accredited trial counsel’s testimony that the Petitioner was able to participate in his defense 

and that it was the Petitioner’s decision to plead guilty after being fully informed of the 

guilty plea agreement and the consequences of the pleas. The court observed that the 

Petitioner answered appropriately in the guilty plea colloquy with the trial court, indicating, 

among other things, that his trial counsel had fully informed him of the plea agreement and 

that he understood he would be sentenced to life without the possibility of parole.

The Petitioner was appointed counsel to represent him in this appeal but filed a 

motion with this court requesting that he be allowed to proceed pro se. Post-conviction 

counsel also filed a motion requesting that he be allowed to withdraw from representation. 

Post-conviction counsel asserted in his motion that he had received a letter from the 

Petitioner with “hateful language” and coated in a brown substance that counsel believed 

to be human feces. 

On July 15, 2020, this court entered an order remanding the case to the postconviction court for an evidentiary hearing “to determine whether the [Petitioner] wishes

to make a knowing and intelligent waiver of the right to counsel on appeal or whether his 

misconduct justifies a forfeiture of the right to counsel on appeal.” Following an 

evidentiary hearing, the post-conviction court entered an order finding that the Petitioner 

voluntarily, knowingly, and intelligently waived his right to counsel on appeal. The court 

further found that the Petitioner had abused the judicial process and engaged in a pattern 

of despicable behavior with his series of appointed post-conviction counsel. The court 

noted that the Petitioner did not deny that he had coated the letter to his latest counsel in 

fecal matter, and found that, by not denying the allegation, the Petitioner tacitly admitted 

the misconduct. The court, therefore, found that the Petitioner not only knowingly and 

intelligently waived his right to counsel, but also forfeited his right to counsel by his 

outrageous and unconscionable behavior. 

II. ANALYSIS

The Petitioner contends on appeal that trial counsel was ineffective for, among other 

things, failing to properly investigate the case, including the Petitioner’s mental health 

issues, and failing to adequately communicate with the Petitioner. The State argues that 

the post-conviction court properly denied the petition for post-conviction relief because the 
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Petitioner has not shown that he was denied the effective assistance of counsel or that his 

guilty pleas were unknowing and involuntary. We agree with the State. 

To be successful in a claim for post-conviction relief, a petitioner must prove the 

factual allegations contained in the post-conviction petition by clear and convincing 

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means 

evidence in which there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. 

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). 

Issues regarding the credibility of witnesses, the weight and value to be accorded their 

testimony, and the factual questions raised by the evidence adduced at trial are to be 

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 

572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled 

to substantial deference on appeal unless the evidence preponderates against those findings. 

See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and 

fact. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the postconviction court’s findings of fact de novo with a presumption that those findings are 

correct. See Fields, 40 S.W.3d at 458. However, we will review the postconviction court’s conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance 

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was 

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To 

establish deficient performance, the petitioner must show that counsel’s performance was 

below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 

523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that 

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause a petitioner must establish both prongs of the test, a failure to prove 

either deficiency or prejudice provides a sufficient basis to deny relief on the 

ineffective assistance claim. Indeed, a court need not address the 

components in any particular order or even address both if the [petitioner] 

makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of 

a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s 
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errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks

v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App.1998); see also Hill v. Lockhart, 474 U.S. 

52, 59 (1985).

When a defendant enters a plea of guilty, certain constitutional rights are waived, 

including the privilege against self-incrimination, the right to confront witnesses, and the 

right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order 

to comply with constitutional requirements, a guilty plea must be a “voluntary and 

intelligent choice among the alternative courses of action open to the defendant.” North

Carolina v. Alford, 400 U.S. 25, 31 (1970). In order to ensure that a defendant understands 

the constitutional rights being relinquished, the trial court must advise the defendant of the 

consequences of a guilty plea and determine whether the defendant understands those 

consequences. Boykin, 395 U.S. at 244.

In determining whether the petitioner’s guilty pleas were knowing and voluntary, 

this court looks to the following factors:

the relative intelligence of the defendant; the degree of his familiarity with 

criminal proceedings; whether he was represented by competent counsel and 

had the opportunity to confer with counsel about the options available to him; 

the extent of advice from counsel and the court concerning the charges 

against him; and the reasons for his decision to plead guilty, including a 

desire to avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.1993).

We conclude that the post-conviction court properly denied the petition. First, we 

agree with the post-conviction court that the pro se Petitioner abandoned his petition by 

walking out in the middle of the evidentiary hearing without providing any sworn 

testimony to support his factual allegations. See Tenn. Code. Ann. §40-30-110 (a)(“The 

petitioner shall appear and give testimony at the evidentiary hearing if the petition raises 

substantial questions of fact as to events in which the petitioner participated, unless the 

petitioner is incarcerated out of state[.]”) Second, we agree that the evidence the Petitioner 

presented, which was essentially only the testimony of trial counsel, failed to show that the 

trial counsel was deficient in her performance, that the Petitioner was prejudiced as a result 

of any alleged deficiency, or that the Petitioner’s guilty pleas were not knowingly, 

voluntarily and intelligently entered. Trial counsel’s testimony, which was accredited by 

the post-conviction court, was that the Petitioner took medication that enabled him to 

participate in his own defense, that he was engaged and interested, and that he made the 

decision to plead guilty after she fully informed him of the plea agreement and the 

sentences he would be required to serve due to his lengthy criminal background and 
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previous convictions for aggravated robbery. We, therefore, affirm the judgment of the 

post-conviction court. 

III. CONCLUSION

Based upon the record and the parties’ briefs, we affirm the judgment of the postconviction court.

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NORMA MCGEE OGLE, JUDGE