            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1997


                                                          FILED
ISHAAN K. MUBARAK,          )                        November 25, 1997
                            )    No. 02C01-9706-CR-00211
      Appellant             )                        Cecil Crowson, Jr.
                            )    SHELBY COUNTY       Appellate C ourt Clerk
vs.                         )
                            )    Hon. W. FRED AXLEY, Judge
STATE OF TENNESSEE,         )
                            )    (Post-Conviction)
      Appellee              )



For the Appellant:               For the Appellee:

Richard F. Vaughn                John Knox Walkup
1928 - 100 N. Main               Attorney General and Reporter
Memphis, TN 38103
                                 Elizabeth T. Ryan
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 William Gibbons
                                 District Attorney General

                                 Ms. Alanda Horne
                                 Asst. District Attorney General
                                 Criminal Justice Complex
                                 Suite 301, 201 Poplar Street
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                       OPINION



       The appellant, Ishaan K. Mubarak, appeals the Shelby County Criminal

Court’s order denying his petition for post-conviction relief. On July 10, 1992, a jury

returned a verdict finding the appellant guilty of conspiracy to commit murder in the

first degree. He is currently serving a twenty-five year sentence in the Department

of Correction for this offense. On May 4, 1994, the appellant filed the instant

petition for post-conviction relief alleging that he received the ineffective assistance

of counsel. Specifically, he contends that trial counsel failed to adequately

investigate the case and prepare for trial, failed to interview potential witnesses,

failed to adequately cross-examine the State’s witnesses, permitted two potential

defense witnesses to remain in the courtroom thus disqualifying them from

testifying, and advised the appellant against accepting the State’s plea offer. The

post-conviction court conducted an evidentiary hearing and denied relief. The

appellant now appeals this denial.



       The proof at the post-conviction hearing established that appellant’s trial

counsel was a ten-year veteran of the public defender’s office in Shelby County.

At the hearing, the appellant's trial counsel testified that he and previous counsel

met with the appellant on at least four or five occasions. Trial counsel stated that

the investigator with the public defender’s office took the statements of all testifying

witnesses and the victim in this case. After talking with the appellant’s mother,

counsel decided not to call her as a witness because her testimony contradicted that

of the appellant’s. The record indicates that counsel’s cross-examination of State’s

witness, Hooker, was more than adequate. Counsel stated that he was unaware of

the possibility of the two potential defense witnesses until after the witnesses had

been sitting in the courtroom and after hearing the proof. Moreover, counsel stated

that the appellant maintained his innocence and wanted to proceed to trial.




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       In denying relief, the post-conviction court accredited the testimony of the

appellant’s trial counsel and concluded that the appellant had not met his burden of

proving that he had been deprived of the effective assistance of counsel. To prove

that he was denied the effective assistance of counsel, the appellant must show, by

a preponderance of the evidence, Taylor v. State, 875 S.W.2d 684, 686 (Tenn.

Crim. App. 1993), perm. to appeal denied, (Tenn. 1994), first, that counsel's

representation fell below the range of competence demanded of attorneys in

criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and, second,

that, but for these errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v.

Melson, 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874, 110 S.Ct. 211

(1989). On post-conviction review, there is a strong presumption of satisfactory

representation, Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).



       When this court undertakes review of a lower court's decision on a petition

for post-conviction relief, the lower court's findings of fact are given the weight of a

jury verdict and are conclusive on appeal absent a finding that the evidence

preponderates against the judgment. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979). After reviewing

the record, we cannot conclude that the evidence preponderates against the post-

conviction court's findings. Moreover, we find no error of law mandating reversal of

the court's judgment. The post-conviction court's denial of the appellant's petition

for post-conviction relief is affirmed in accordance with Tenn. Ct. Crim. R. App. 20.




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                          ____________________________________
                          DAVID G. HAYES, Judge


CONCUR:



_____________________________________
JOHN H. PEAY, Judge



_____________________________________
PAUL G. SUMMERS, Judge




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