            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON              FILED
                          DECEMBER 1998 SESSION



JESSE JAMEEL DAWAN,           *      C.C.A. # 02C01-9709-CC-00370
                                                        March 30, 1999
a.k.a. JESSIE JONES,
                              *      HAYWOOD COUNTY
             Appellant,
                              *      Hon. Dick Jerman, Jr., Judge
VS.                                                      Cecil Crowson, Jr.
                              *      (Post-Conviction)
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,
                              *
             Appellee.
                              *




For Appellant:                       For Appellee:

Jesse Jameel Dawan                   John Knox Walkup
Pro Se                               Attorney General and Reporter
Inmate # 148525
L.C.C.X. Site 1, A-2-20              Georgia Blythe Felner
P.O. Box 1000                        Criminal Justice Division
Henning, TN 38041                    Cordell Hull Building, 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 REMANDED




GARY R. WADE, PRESIDING JUDGE
                                           OPINION

               The petitioner, Jesse Jameel Dawan, a.k.a. Jessie Jones, appeals the

trial court's dismissal of his petition for post-conviction relief. The trial court did not

appoint counsel or grant an evidentiary hearing. Because the petitioner presented a

colorable claim for relief, we must reverse the judgment and remand the cause for

the appointment of counsel.



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

counts of aggravated burglary. The trial court imposed a Range II effective

sentence of twenty years. This court affirmed the convictions on direct appeal.

State v. Jessie Jones, Jr., a.k.a. Jesse Jones, No. 02C01-9512-CC-00382 (Tenn.

Crim. App., at Jackson, Jan. 28, 1997). Several months later, the petitioner filed

this, his first petition for post-conviction relief.



               On the petition form, the petitioner checked as present the following

grounds for relief:

               (9)     Denial of effective assistance of counsel;

               (10)    Newly discovered evidence;

               (11)    Illegal evidence; and

               (12)    Other grounds.

The petitioner also made the following specific allegations:

               1. Denial of effective assistance of counsel. (a) The
               petitioner, after finding that appointed counsel had a
               conflict of interest at his preliminary 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 used evidence of type (A) blood to
               prosecute the petitioner.
               (b) Subsequently, the petitioner has discovered that his
               blood type is (A+) and not type (A).
                                              ***

                                               2
               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 illegal gathering and control of
               evidence by the victim in the case, Shawn Williams.
               7. The record reflects discrepancy 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 said petition for post conviction relief does not state

any ground or claim upon which relief may or should be granted."



               On appeal, the petitioner makes the additional allegations that the trial

court should have charged lesser offenses and that dual convictions for burglary are

inappropriate. Because these issues were not considered by the trial court, they

cannot be considered for the first time on appeal. A post-conviction petition "must

necessarily rest upon and be determined by the factual allegations it contains."

Long v. State, 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). If, however, any of the

claims contained in the original petition are "colorable," the petitioner is entitled to

the appointment of counsel and, generally, an evidentiary hearing.



               Upon the filing of a post-conviction petition in proper form or upon

receipt of an amended petition, our law requires trial courts to subject the petition to

"preliminary consideration." Tenn. Code Ann. § 40-30-206. During this preliminary

phase, the trial judge must examine the allegations of fact in the petition. "If the

facts alleged, taken as true, fail to show that the petitioner is entitled to relief ... the

petition shall be dismissed." Tenn. Code Ann. § 40-30-206(f). In Waite v. State,

948 S.W.2d 283 (Tenn. Crim. App. 1997), this court established guidelines to


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determine under the new Act whether a claim is "colorable" 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 alleges facts showing that the conviction resulted from an

abridgment of a constitutional right and which demonstrates that the ground for relief

was not previously determined or waived.'" Id., 948 S.W.2d at 284-85 (quoting Hugh

Ronald Carmley v. State, No. 03C01-9305-CR-00167, slip op. at 6 (Tenn. Crim.

App., at Knoxville, Jan. 13, 1994)). "'The pro se petitioner must assert a basic

theory of relief.'" Waite, 948 S.W.2d at 284 (quoting Lowe v. State, 805 S.W.2d

368, 372 (Tenn. 1991)). Under the new statute, the trial judge 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 original). See also Tenn.

Sup. Ct. R. 28(2)(H).



              The amended Post-Conviction Procedure Act also requires a

preliminary stage determination as to "whether the petitioner is indigent 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 dismissal, however, the statute 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 the allegation is true, that would

establish a constitutional basis for post-conviction relief. See Cuyler v. Sullivan, 446

U.S. 335 (1980).




                                             4
                The petitioner's claim of new evidence of innocence would not entitle

him to relief. See generally Tenn. Code Ann. § 40-30-217(a)(2). Yet the allegation

that the petitioner has A+ blood type instead of A does not indicate innocence. An

A+ blood type is, of course, the same as an A type. In a related issue, the petitioner

claimed the state's use of the blood type evidence was illegal and thus a separate

ground for post-conviction relief. There was, of course, nothing illegal about

characterizing the type as A rather than A+.



                Furthermore, the claim of "illegal gathering and control of evidence by

the victim" also fails to state a colorable claim. There are simply not enough facts

alleged. The new statute requires a "full disclosure of the factual basis of [the]

ground[.]". Tenn. Code Ann. § 40-30-206(d). In our view, the claim regarding the

chain of evidence is also lacking a factual basis. Id. Because a claim regarding the

chain of evidence was litigated on direct appeal, the issue may be barred as having

been previously determined. See Jones, slip op. at 7. Previous determination

occurs when a "court of competent jurisdiction has ruled on the merits after a full

and fair hearing." Tenn. Code Ann. § 40-30-206(h). Claims which have been

previously determined may not form the basis for post-conviction relief. Tenn. Code

Ann. § 40-30-206(f).



                Because an ineffective assistance of counsel claim is colorable,

preliminary dismissal was inappropriate. The cause must, therefore, be remanded

for the appointment of counsel and an evidentiary hearing. See Tenn. Code Ann. §

40-30-207(b)(1) (if the cause is not dismissed upon preliminary consideration and

the petitioner is indigent, "the court shall appoint counsel to represent the

petitioner").




                                            5
                                 ________________________________
                                 Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



______________________________
John Everett Williams, Judge




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