State v. Ishaan Mubarak ( 1997 )

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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