IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 2, 2016

BENNIE OSBY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 11-02364 James C. Beasley, Jr., Judge

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No. W2015-02479-CCA-R3-PC - Filed December 29, 2016

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Bennie Osby (“the Petitioner”) was convicted after a jury trial of especially aggravated 

kidnapping, attempted second degree murder, aggravated robbery, and employing a 

firearm during the commission of a felony. He sought post-conviction relief alleging 

ineffective assistance of counsel. The post-conviction court denied relief. On appeal, we 

affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY JR., J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Carlissa Shaw, Memphis, Tennessee, for the appellant, Bennie Osby.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney 

General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

Trial

This court provided a detailed summary of the testimony presented at trial in the 

opinion from the Petitioner‟s direct appeal. State v. Bennie Osby, No. W2012-00408-

CCA-R3-CD, 2012 WL 5381371, at *1-4 (Tenn. Crim. App. Nov. 2, 2012), perm. app. 

denied (Tenn. Mar. 5, 2013). To summarize, the Petitioner and another person 
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approached Marlon Toney and Eric Moody, pointed guns at them, and demanded that 

they exit Mr. Moody‟s truck. The Petitioner and his companion ordered Mr. Toney and 

Mr. Moody to lie on the ground and searched them. They then “marched” Mr. Toney and 

Mr. Moody into Mr. Toney‟s backyard, where they “ordered the victims onto the ground 

a second time and „started duct-taping [their] hands behind [their] backs.‟” Id. The 

Petitioner and his companion took money and a cellular phone from the victims and 

struck Mr. Toney in the head with their pistols. The Petitioner and his companion fled, 

but Mr. Toney followed them, so the Petitioner and his companion fired their guns at Mr. 

Toney. At that time, Mr. Toney observed the Petitioner fall to the ground and then run 

away limping. Id. at *1-2. 

Candis Bowman testified that she heard gunshots on the night in question. Within 

seconds of hearing the gunshots, the Petitioner knocked on her door and told her that he 

had been shot. She observed gunshot wounds to his left shoulder and right hip. The 

Petitioner told her that he had been shot by unknown assailants. Ms. Bowman called the 

police, and the Petitioner was transported to the hospital. Police investigated the 

Petitioner‟s claim that he was shot by an unknown person, but officers found no blood, 

shell casings, bullets, or any other evidence that a shooting had taken place at the location 

where the Petitioner claimed he was shot. Additionally, “only a single shooting was 

reported on that night, and [the Petitioner] was the victim.” Id. at *3-4.

The jury convicted the Petitioner of two counts of especially aggravated 

kidnapping, two counts of aggravated robbery, attempted second degree murder, and 

employing a firearm during the commission of attempted second degree murder. Id. at 

*4. The trial court imposed an effective sentence of life without the possibility of parole 

plus 105 years‟ incarceration. Id. This court affirmed the Petitioner‟s convictions on 

appeal. Id. at *10.

Post-Conviction Proceedings

The Petitioner filed a pro se “Petition for Relief from Conviction or Sentence.” 

Post-conviction counsel was appointed, and an “Amended Petition for Post-Conviction 

Relief” was filed. Collectively, the petitions alleged that trial counsel was ineffective for 

failing to: (1) “interview a material witness[,] Mr. Walter Edwards[,] who was an eye 

witness to the alleged crime”; (2) object to the imposition of two life sentences; (3) 

present any legal argument at the hearing on the motion for new trial; (4) put the State‟s 

case to a meaningful adversarial test; (5) object to the trial court‟s “misinterpretation of 

the law in regards to the lesser-included charge of facilitation”; and (6) “argue suggestive 

identification was used at the preliminary hearing.” The pro se petition also alleged that 

appellate counsel was ineffective for failing to present “any legal argument” to support 

the Petitioner‟s claim that the evidence was insufficient to support his convictions.
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The transcript of the post-conviction hearing is not included in the record on 

appeal.1 However, the post-conviction court‟s written order states:

The [P]etitioner was convicted after a jury trial and alleges that he 

did not receive effective assistance of counsel in said trial. The court heard

the testimony of [the Petitioner] and trial counsel and determined that the 

[P]etitioner did in fact receive effective assistance of counsel. The proof 

against the [P]etitioner was very strong[;] both direct and circumstantial 

evidence pointed to the [P]etitioner as one of the perpetrators. One of the 

robbers was shot during the course of the robbery[,] and the [P]etitioner 

showed up at a hospital with a gunshot wound that night. Strangely enough 

for Memphis and Shelby County there were no other gunshot injuries 

reported that particular night. The [P]etitioner was also identified by the 

victims. The witnesses were extensively cross[-]examined by [trial] 

counsel[,] and the [P]etitioner‟s explanation of how he was shot was very 

thoroughly explained [through] State‟s witnesses by trial counsel. The 

[P]etitioner alleges that [trial] counsel should have called a particular 

witness who would have exonerated him. However, no one has been able 

to locate said witness. He was not around for trial and over several months 

and attempts by an investigator for post[-]conviction counsel has not been 

located to this date, therefore, there is nothing to suggest that his testimony 

would have been favorable to the [P]etitioner. The opposite is true[;] he 

may not have wanted to testify for [the] [P]etitioner. This court finds that 

trial counsel did a thorough job in defending [the] [P]etitioner and has seen 

nothing that would have changed the verdict returned by the jury. The 

court entered oral findings of fact and conclusions of law at the hearing and 

hereby incorporates said ruling into this order.

The post-conviction court denied relief. This timely appeal followed.

 

1 By order entered September 16, 2016, this court pursuant to Rule 10(a) of the Court of Criminal 

Appeals struck the brief filed by the Petitioner as “inexcusably substandard” because it failed to comply 

with Tennessee Rule Appellate Procedure 27(a)(1),(2),(6),(7), and (8). On October 3, 2016, the Petitioner 

filed a new brief and a motion to supplement the record with a transcript of the post-conviction hearing. 

This court entered an order on October 4, 2016, allowing the Petitioner to supplement the record with a 

transcript of the post-conviction hearing. On October 21, 2016, the trial court clerk filed a document 

certifying the “absence of the supplemental transcript of the record of the post conviction hearing.” 

Counsel for the Petitioner still has not supplemented the record with a transcript and has failed to comply 

with Tennessee Rule of Appellate Procedure 24(b). 
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II. Analysis

Although the Petitioner alleged several instances of ineffective assistance of 

counsel in his original and amended petitions, on appeal the Petitioner argues only that 

trial counsel was ineffective for failing to investigate and interview “relevant witnesses”

who would have provided exculpatory evidence for the defense. The State argues that 

the Petitioner has waived his claim by failing to include a transcript of the postconviction relief hearing in the record. Additionally, the State contends that the 

Petitioner is not entitled to relief because the Petitioner did not present the testimony of 

any additional witnesses at the post-conviction hearing and therefore cannot establish 

deficiency or prejudice.

In order to prevail on a petition for post-conviction relief, a petitioner must prove 

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828, 

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and 

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound 

by the post-conviction court‟s factual findings unless the evidence preponderates against 

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing 

the post-conviction court‟s factual findings, this court does not reweigh the evidence or 

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally, 

“questions concerning the credibility of the witnesses, the weight and value to be given 

their testimony, and the factual issues raised by the evidence are to be resolved by the 

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579); 

see also Kendrick, 454 S.W.3d at 457. The trial court‟s conclusions of law and 

application of the law to factual findings are reviewed de novo with no presumption of 

correctness. Kendrick, 454 S.W.3d at 457.

The right to effective assistance of counsel is safeguarded by the Constitutions of 

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. 

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, 

a petitioner must prove: (1) that counsel‟s performance was deficient; and (2) that the 

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); 

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same 

standard for ineffective assistance of counsel applies in both federal and Tennessee 

cases). Both factors must be proven in order for the court to grant post-conviction relief. 

Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). 

Additionally, review of counsel‟s performance “requires that every effort be made to 

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‟s 

challenged conduct, and to evaluate the conduct from counsel‟s perspective at the time.” 

Strickland, 466 U.S. at 689. We will not second-guess a reasonable trial strategy, and we 
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will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision. 

Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel‟s performance is effective 

if the advice given or the services rendered are within the range of competence demanded 

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523 

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that 

counsel was deficient, the petitioner must demonstrate “that 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); see 

also Baxter, 523 S.W.2d at 936.

Even if counsel‟s performance is deficient, the deficiency must have resulted in 

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong 

of the Strickland analysis, 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks 

omitted).

In cases where a petitioner contends that trial counsel failed to present a witness in 

support of the petitioner‟s defense, the petitioner must present such witness at the postconviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). 

Neither a trial nor an appellate judge can speculate as to whether that witness‟s testimony 

would have been favorable to the defense. Id. Therefore, the petitioner must “produce a 

material witness who . . . would have testified favorably in support of his defense if 

called [at trial]. Otherwise, the petitioner fails to establish the prejudice requirement 

mandated by Strickland v. Washington.” Id. at 758. 

We again note that the transcript of the post-conviction hearing is not included in 

the record. The party seeking appellate review bears the burden of preparing a record 

which conveys a fair, accurate, and complete account of what transpired with respect to 

the issues forming the basis of the appeal. Tenn. R. App. P. 24(b). The post-conviction 

court found that the Petitioner did not present any witness at the post-conviction hearing 

that trial counsel supposedly failed to interview or investigate, and the evidence in the 

record does not preponderate against the post-conviction court‟s finding. The Petitioner 

cannot prove that he suffered prejudice without producing such witness at the postconviction hearing. See Black, 794 S.W.2d at 758. Therefore, the Petitioner‟s claim is 

without merit.
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III. Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is 

affirmed.

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ROBERT L. HOLLOWAY JR., JUDGE