State v. Ishaan Mubarak

• Court: Court of Criminal Appeals of Tennessee
• Decided: November 25, 1997
• Docket: 02C01-9706-CR-00211
• Status: Published

Opinion

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.

2 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.

3 ____________________________________ DAVID G. HAYES, Judge

CONCUR:

_____________________________________ JOHN H. PEAY, Judge

_____________________________________ PAUL G. SUMMERS, Judge