# FILED

March 30, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

JESSE JAMEEL DAWAN, * C.C.A. # 02C01-9709-CC- 00370 a.k.a. JESSIE JONES, * HAYWOOD COUNTY

Appellant, * Hon. Dick Jerman , Jr., Judge VS. * (Post-Conviction) STATE OF TENNESSEE, *

Appellee. *

For Appellant : For Appellee : Jesse Jameel Dawan John Knox Walkup Pro Se Attorney General and Repor ter Inmate # 148525 L.C.C.X. Site 1, A-2-

20 Georgia Blythe Felner P.O. Box 1000 Criminal Justice Div ision Henning, TN 38041 Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Clayburn L. Peeples District Attorney General 109 East First Street Trenton, TN 38343

OPINION FILED:__________________________

REVERSED AND REMAND ED

GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Jesse Jameel Da wan, a.k.a. Jessie Jones , appeals the trial court's dismis

sal of his petition for post-c onviction relief. The tri al court did not appoint counsel or grant an evidentiary hearing . Because the petitioner pres ented a colorable claim for reli ef, we must reverse the j udgment and remand the cause for the appointment of counsel.

The pet itioner wa s convicte d of robb ery, aggrava ted assa ult, and two counts o f aggravat ed burgla ry. The tri al court im posed a Ra nge II ef fective sentence of twenty year s. This court affirmed the convi ctions on direct appeal. State v. Jessie Jones, J r., a.k.a. Jesse Jones , No. 02C01-9512-CC-00382 ( Tenn. Crim. App., at Jackson, Jan.28, 1997). Several months l ater, the petitioner filed this, hi s first

petiti on for pos

t-conv iction relief.
On the petition form, the petitioner checked as present the follow ing grounds for rel ief: (9) Denial of effective assistance o f counsel; (10) Newly discov

ered evidence; (11) Illegal evidence; and (12) Other grounds. The petitioner also made the following specific allegations:

1. Denial of effective assistan ce of counsel. (a) The petitioner, after finding that appointed counsel had a conflict of interest at his pr eliminary hearing, moved the court in motion for counsel to withdraw, but the court denied the motion. *** 2. Newly discovered evidence. (a) At the petitioner's trial, the prosecution use d evidence of type (A) bl ood to prosecute the petitioner. (b) Subsequently, the petitioner has discovered that his blood type is (A+) and not type (A). ***3 3. Illegal evidence.The prosecution used wrong blood type at the petitioner's trial. They used type (A), when the petitioner's type is (A+). *** 6. The record reflects the il legal gathering and c ontrol of evidence by the victim in the case, Shawn Williams. 7. The record reflects discr epancy in the chain of custody of the evidence .... 8. And so much more.
The trial court denied relief, concluding, "upon preliminary consideration by the Court, and the entire record in this cause, it satisfactorily appears to the Court that the sa id petition for post convi ction relief does not state any ground or claim upon which relief may or s hould be granted."

On appeal, the petitioner makes the additional allegations that the trial court should have charged lesser offenses and that dua l convictions for burglary are inappropriate. Because these i ssues were not consider ed by the trial court, they cannot be considered for the first time on app eal. A post-conviction petition "must necessarily rest upon and be determined by the factual al legations it contains." Long v. State , 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). If, how ever, any of the claims contained in the ori ginal petition are "colo rable," the petitioner is e ntitled to the appointm ent of counse l and, generally, an evidentiary hearin g.

Upon the filing of a post-conv iction petition in proper form or upon receipt of an amended petition, our l aw requires tri al courts to subject the peti tion to "preliminary consideration." Tenn. Code Ann. § 40-30-206 . During this preliminary phase, the trial judge must examine the allegations o f fact in the petition. "If the facts alleged, taken as true, fail to show that the petiti oner is entitled to reli ef ... the petition shall be dismiss ed." Tenn. Code Ann. § 40-30-206(f). In Waite v. State , 948 S.W.2d 283 (Tenn. Crim. App. 1997), this cour t established guidelines to4 determine under the new Act w hether a claim is "colorabl e" or actionable. If so, the petition is allowed to pass beyond the preliminary stage. After examining the case law on the subject established prior to the 1995 Act, this court ruled that a colorable claim is "'one that alleg es facts showing that the conviction resulted from an abridgment of a constitutional right and which demonstr ates that the ground for reli ef was not previously

determined or waived. '" Id. , 948 S.W .2d at 284-85 (qu oting Hugh Ronald Carmley v. S

tate , No. 03C01-9305-CR-00 167, slip op . at 6 (Tenn. C rim. App., at Knoxville, Jan. 13, 1994)). "'The pro se petitioner must assert a basic theory of relief.'" Waite , 948 S.W .2d at 284 (quot ing Lowe v. State , 805 S.W.2d 368, 372 (Tenn. 1991)). Under the new statute, the trial j udge is required to determine at the preliminary stage "whether it appear [s] beyond doubt that the [petitioner could] prove no set of facts in support of his claim which would entitle him to relief." Waite , 948 S.W.2d at 284 (second alteration in ori ginal). See also Tenn. Sup. Ct. R. 28(2)(H).

The amended Post-Conviction Procedure Act also requires a preliminary stage det

ermination as to "whether the petitioner is indige nt and in need of counsel." Tenn. Code Ann. § 40-30-206( e). The trial court "may provide counsel and allow time for an amendment to the petition." Id. Before there can be a preliminary dismiss

al, however, the stat ute requires the trial court to assume "as true" the facts alleged by the petitioner.

In our view, the petitioner's claim that counsel was ineffective because of a conflict of interest is a "colorable" claim. If th e allegation is true, that would establish a constitutional basis for post-conviction relief. See Cuyler v. Sulli van , 446 U.S. 335 (1980).5 The petitioner's claim of new evidence of innocence would not en title him to relief. See generally Tenn. Code Ann. § 40-30-217(a)(2). Yet the allegation that the petitioner has A+ bl ood type instead of A does not indi cate innocence. An A+ blood type is, of cours e, the same as an A type. In a r elated issue, the petitioner claimed the state's use of the blood type evidence was

illegal and thus a separ ate ground for post-conviction relief. There was, of cour se, nothing illegal about characterizing the type as A rather than A+.

Furthermore, the claim of "ill egal gathering and cont rol of evidence by the victim" also fails to state a colorable claim. Ther e are simply not enough facts alleged. The new statute r equires a "full disclosu re of the factual basis of [the] ground[.]". Tenn. Code Ann. § 40-3 0-206(d). In our view, the claim regarding the chain of evidence is also l acking a factual basis. Id. Because a claim regardi ng the chain of evidence was li tigated on direct appeal, the issue may be barred as hav ing been previously deter

mined. See Jones , slip op. at 7. Previ ous determination occurs when a "court of competent jurisdiction has ruled on the me rits after a full and fair hearing." Tenn. Code Ann. § 40-30-206(h). Claims w hich have been previously determin ed may not form the basis for post-conviction relief. Tenn. C ode Ann. § 40-30-206(f).

Because an ineffective assistanc e of counsel claim is colorable, preliminary dismiss

al was inappropriate. The cause must, therefore, be remanded for the appointment of counsel and an evi dentiary hearing. See Tenn. Code Ann. § 40-30-207(b)(1) (if the c ause is not dismissed upon pre liminary considerati on and the petitioner is indig ent, "the court shall appoint c ounsel to represent the petitioner").6 ________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

______________________________ John Everett Williams, Judge