Montea Wilson (A.K.A. Marcus Floyd) v. State of Tennessee

The petitioner, Montea Wilson, appeals from the Criminal Court of Shelby County's denial in part of his petition for post-conviction relief and simultaneous order of a delayed appeal. After a hearing, the post-conviction court determined that appellate counsel was ineffective in failing to "protect[] the petitioner's right to litigate the trial court's failure to properly instruct the jury on [second degree murder as a lesser included offense of felony murder] by raising that point in the motion for new trial" and granted a delayed appeal. The postconviction court further determined that trial counsel were effective in their representation of petitioner and, at the time of the petitioner's trial, had no obligation to request second degree murder as a lesser included offense to felony murder. In this appeal, the Petitioner argues that the post-conviction court erred by not setting aside his conviction for felony murder and granting a new trial because (1) trial counsel was ineffective for failing to request an instruction on second degree murder and for failing to allege in the motion for new trial that the trial court erred by not instructing the jury on second degree murder as a lesser included offense; and (2) appellate counsel was ineffective for failing to argue on direct appeal that the trial court's failure to instruct the jury on second degree murder as a lesser included offense constituted plain error. For the reasons set forth within this opinion, we reverse the post-conviction court's determination that trial counsel provided effective assistance of counsel, vacate the petitioner's conviction, and remand for a new trial. In regard to the petitioner's delayed appeal, our decision pertaining to trial counsel's performance renders it moot.