IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2001

JESSE JAMEEL DAWAN, AKA JESSIE JONES, JR. v. STATE OF

TENNESSEE

 Appeal from the Circuit Court for Haywood County

No. 2868 L.T. Lafferty, Judge

No. W2001-00792-CCA-R3-CD - Filed March 11, 2002

The petitioner, Jesse Jameel Dawan, appeals the denial of his petition for post-conviction relief. In

this appeal, he claims that he was denied the effective assistance of counsel. The judgment of the

trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.

HAYES, JJ., joined.

James Seymour Haywood, Brownsville, Tennessee, for the appellant, Jesse Jameel Dawan.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and

Guy Townsend, Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

The petitioner was convicted of robbery, aggravated assault, and two counts of aggravated

burglary. The trial court imposed a Range II, effective sentence of 20 years. This court affirmed the

convictions on direct appeal. State v. Jessie Jones, Jr., a.k.a. Jesse Jones, No. 02C01-9512-CC00382 (Tenn. Crim. App., at Jackson, Jan. 28, 1997). Several months later, the petitioner filed a

petition for post-conviction relief alleging (1) that he was denied the effective assistance of counsel;

(2) that newly discovered evidence established that his blood type was A+ rather than A, as

contended by the state at trial; (3) that illegal evidence had been used to obtain his conviction; (4)

that the state failed to provide a sufficient chain of custody before his clothes were admitted at trial;

and (5) that evidence was acquired and handled illegally by a witness for the state. The postconviction court originally dismissed the petition. In an appeal from that decision, this court

determined that the petitioner had presented a colorable claim on grounds of ineffective assistance

of counsel and remanded for an evidentiary hearing on the issue. Jesse Jameel Dawan, a.k.a. Jessie

Jones v. State, No. 02C01-9709-CC-00370 (Tenn. Crim. App., at Jackson, March 30, 1999). 
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At the evidentiary hearing, the petitioner’s trial counsel testified that when she informed the

petitioner that she knew the victims in the case, he asked her to withdraw as counsel. At the

preliminary hearing in the Haywood County General Sessions Court, she reported her familiarity

with the victims and moved to withdraw. When, upon questioning by the court, trial counsel

testified that her acquaintance with the victims would not prevent her from representing the

petitioner effectively, the motion was denied.

Later, at the urging of the petitioner, trial counsel asked permission of the trial court to

withdraw. She could not remember whether she had made the request on the record. In any event,

the trial court denied the motion and ordered counsel to continue her representation.

Counsel explained that she knew William "Eagle" Lane, one of the victims, because he was

a firefighter in her community. She was also aware that Natalie Harwell, another of the victims, was

a teller at her bank. Counsel testified that she had attended some leadership classes with Mary Lou

Lane, an owner of the property that the defendant had allegedly burglarized. Counsel stated that she

would not classify any of the victims as friends and knew them only from her community

interactions. She added that she did not attend church with any of the victims and had never seen

them socially.

When called as a witness at the evidentiary hearing, Mary Lou Lane confirmed that she had

attended some leadership classes with the petitioner’s trial counsel. She explained that there were

20 to 25 people in the class and that she was not particularly familiar with the petitioner's trial

counsel. William “Eagle” Lane testified that he knew counsel because of her position as a public

defender but would not describe her as a friend. Natalie Harwell testified that she had done some

minor banking business for counsel and had seen her in the grocery store on occasion. Roy Lane,

William Lane's father and also an owner of the burglarized property, testified that his interaction with

counsel was limited to the trial in this case.

At the conclusion of the hearing, the trial court ruled that the petitioner had failed to establish

by clear and convincing evidence that his counsel had an actual conflict of interest. The trial court

also found that the petitioner had received the effective assistance of counsel.

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

counsel, he must first establish that the services rendered or the advice given were below "the range

of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the

defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Our supreme court described the standard of

review as follows:

Because 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
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particular order or even address both if the defendant makes an insufficient showing

of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective assistance of counsel,

the petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial

strategy, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of

the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference

to the tactical decisions of counsel, however, applies only if the choices are made after adequate

preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

The petitioner contends that his trial counsel was ineffective because she had an actual

conflict of interest. An actual conflict of interest is usually defined in the context of one attorney

representing two or more parties with divergent interests. An actual conflict of interest occurs when

"regard for one duty tends to lead to [the] disregard of another." State v. Reddick, 230 Neb. 218,

222, 430 N.W.2d 542, 545 (1988); see Gardner v. Nashville Housing Authority, 514 F.2d 38 (6th

Cir. 1975). In Ford v. Ford, the court declared a conflict of interest when an "attorney was placed

in a position of divided loyalties.” 749 F.2d 681, 682 (11th Cir. 1985).

The right to counsel requires complete devotion to the interest of the defendant. State v.

Knight, 770 S.W.2d 771 (Tenn. Crim. App. 1988). When counsel is unable to provide a "zealous

representation . . . unfettered by conflicting interests," there has been a breach of the right to the

effective assistance of counsel. State v. Thompson, 768 S.W.2d 239 (Tenn. 1989). In Cuyler v.

Sullivan, the United States Supreme Court held that because there is a breach of loyalty in cases

involving a conflict of interest, prejudice is presumed. 446 U.S. 335 (1980). Unless the petitioner

can establish that his counsel "actively represented conflicting interests," he can not established the

constitutional predicate for his claim. Id. at 350. To establish a claim based upon conflict of

interests, the conflict must be actual and significant, not irrelevant or "merely hypothetical." Howard

Clifton Kirby v. State,No. 03C01-9303-CR-00074 (Tenn. Crim. App., at Knoxville, Sept. 28, 1994).

Here, trial counsel was merely acquainted with the victims. The petitioner has failed to

establish any relationship that would imply a loyalty on the part of trial counsel towards any of the

victims. The trial court accredited the testimony of counsel, finding that no actual conflict of interest

existed. The evidence does not preponderate against that finding. 

Accordingly, the judgment of the trial court is affirmed.

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GARY R. WADE, PRESIDING JUDGE