         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-CC-
00382 (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 post-
conviction 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).
         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.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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