### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs D ecem

ber 4, 2001
JESSE JAMEEL DAWA N, AKA JESSIE JONE S, 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 Mar ch 11, 2002

The petitioner, Jesse Jameel Dawan, appeals the denial of his petition for pos t-c onv ict io n re li ef. In this appeal, he claims that hewas 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

G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined. James Seymour Hay

wood, Brownsville, Tennessee, for the appe llant, Jesse Jameel Dawan. Paul G. Summers, Attorney Gene ral & Reporter; Kim R. Helper, Assistant Attorney Gene ral; and Guy Townsend, Assistant District Attorney General, for the appellee, the State of Te nnessee.
OPINION
The petitioner was convicted of robbery, a

ggravated assault, and two c ounts of aggravated bu rg la ry. The trial court imposed a Range I I, effective se

ntence of 20 y ears. This court affirmed the
conv ictions on di rect appeal. State v. Jessie Jones, Jr., a.k.a. Jesse Jones , No. 02C01 -9512-CC00382 (Tenn. Cr

im. App., a

t Jackson, Ja

n. 28, 1997 ). Sever

al month s later, the petitioner filed a petition for post-conviction relief alleging (1) that he was denie d the eff ective a ssistance

of counse l; (2) that newly discover

ed evidence established that h is blood type was A+ ra ther than A, as contended

by the state at

trial; (3 ) that ille gal evi dence h ad been used to obt

ain his conviction; (4) that the state failed to provide a sufficient chain of custody before his clothes were a

dmitted at trial; and (5) that e

vidence was acq uired an d handled

illega lly b y a witness f

or the sta te. The p ostconviction court or

ig in al ly dismissed the petition. In an appeal from that dec ision, this court determinedthat the petitioner hadpresented a colorable claim on gr ounds of ineffective assistance of counsel and remanded for an evidentiary hearing on the issue. Jesse Jamee l Dawan, a.k.a. Jes sie Jones v. Stat

e , No. 02C01-9709-CC-00370 (Tenn. Crim. App., at Jackson, March 30, 1999).-2-

At the evidentiary he aring, the petitioner’s trial counsel testified that when she informed the pe t itioner that she knew the victims in the case, he asked her to withdraw a s counsel. At the preliminary

hearing in theH ay wood Count y General Sessions Court, she r

eported her fam iliarity withthe v ictims an d moved to withdraw. When, upon questioning by the court, trial counsel testified that her

a cquaintance with the victims would not prevent her from repre senting the petitioner effectively , the motion was denied.

Late r, at the urging

of the pe

titioner, trial cou

nsel aske d permissi on of the t rial cou rt to withdraw. She could not remember whether she had made the request on the record. In a ny e vent, 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 awarethat Natalie Harwell, another of the victims, was
a teller at her bank. Counsel testified that she hadattended some leadership classes with Mary Lou Lane, an owner

of the pr operty that the defendant had allegedly burglarized. Counsel stated that she would not classify any

of the victims as friends and k new t hem only

from her

community interac tions. She added that she did not attend church with any

of the vic tims and had never seen th em so ci al ly.

When called as a witness at the evidentiary hearing, Mary

Lou L ane confirmed that she had attendedsome leadership classes with the petitioner’s trial counsel. She explained that there were 20 to 25 p e ople in the class and that she was not particularly familiar with the petitioner's trial counsel. Wi lliam “Ea

gle” L ane test ified tha t he knew counsel b ecause

of her po sition 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 groce ry store on occasion. Roy L

ane, William Lane 's fath

er and a lso an own er of the

burgla rized pro perty , testifie d that his in

teracti on with counsel was limited to the trial in this case.

At the conclusion of the hearing, the trial court ruled tha t the petit ioner ha d failed to establi sh by clear and convincing evidence that his counsel had an actual conflict of interest. The trial court also foun d that the

petitione r had re ceived t

he effective as sistance

of counse

l.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of counsel, he must fir st establi sh that t he serv ices r endere d or th e advi ce given were be low "t he range of competence dem anded of atto rneys in criminal cas es." Baxter v. Ro se , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the def icien cies "actually

had an adverse effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Should the p etitioner fail to establish either factor , he is not entitled to relief. Our supreme court described the standa rd of review a s follows:

Becau se a petitioner must establish both prongs of the test, a failure to prove either deficiency

or prejudice p r ovides a sufficient basis to deny relief on the ineffective assistanc e claim. I ndeed, a court need not add

ress the componen

ts in any-3-

particular order or even address both if the defe ndant makes an insufficient showing of one co mponent.
Goad v. State , 938 S.W.2d 3 63, 370 (T enn. 1996 ). On cla ims of inef

fective assistanc e of coun sel, the petitioner is not entitled to the benefit of hindsight, may not second- guess a reasonably based trial st ra te gy, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tacti cal dec isions of c ounsel, ho wever, applies o nly if the choice s are ma

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

The petiti o ner contends that his trial counsel was ineffective bec ause she had an actual conflict of inter est. An ac tual conflict of interest is usually de fined 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 lea

d to [the] disregard of

another." Sta te v. Reddick , 230 Neb. 218, 222, 430 N.W.2d 542, 545 (1988); see Gardne r v. Nash ville Hous ing Auth ority , 514 F.2d 38 (6th Cir. 1975). In Fordv. Ford , the court declared a conflict of interest whe n 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 intere st 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 bee n a breach o f the rig ht to the effective assistance of counsel. State v. Thompson , 768 S.W.2d 239 (Tenn. 1989). In Cuyler v. Sullivan , the Un ited States Supreme Court held that because there is a breac h of loyalty

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

that his co

unsel "a ctively represented

conflicting interests," he can not established the constitutional predicate for his claim. Id. at 350. To establish a clai m b ased upon conflict of interest s, the conflict must be actual and significant, not irrelevant o r "merely hypothetical." Howard Clifton Kirby v. S tate , N o. 03C01-9303-CR-00074 (Tenn. Crim. App., at Knoxville, Sept. 28, 1994).
Here, tria l counsel was merely acquainted with the victims. The petitioner has failed t o establish an y re la ti on sh ip th at wo ul d i mp ly 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 ag ainst that finding. Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE