Troy R. Shaw v. State of Indiana
Supreme Court Case No. 19S-PC-466
Indiana Supreme Court
August 21, 2019
The Honorable Frances Gull, Judge
I N T H E
Indiana Supreme Court
Supreme Court Case No. 19S-PC-466
Troy R. Shaw
Appellant-Petitioner,
–v–
State of Indiana,
Appellee-Respondent
Argued: June 28, 2019 | Decided: August 21, 2019
Appeal from the Allen Superior Court, No. 02D04-1803-PC-17
The Honorable Frances Gull, Judge
On Petition to Transfer from the Court of Appeals,
No. 18A-PC-1181
Per Curiam Opinion
All Justices concur.
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Per curiam.
At issue is whether a petitioner who has obtained the right to a new appeal from a federal court may, without prior authorization, file a post-conviction petition that challenges only the issues emerging from the new direct appeal.
We hold that a post-conviction petition that addresses only the proceedings on remand from this grant of relief is not a “second” or “successive” petition under Ind. Post-Conviction Rule 1(12). In these limited cases, such a petition may proceed
Facts and Procedural History
In 2002, a jury convicted Troy R. Shaw of the murder of Brett King. Shaw’s conviction and 60-year sentence were affirmed on direct appeal. Shaw v. State, No. 02A03-0205-CR-132, 787 N.E.2d 1030 (Ind. Ct. App. 2003).
In April 2007, Shaw filed his first petition for post-conviction relief, alleging the ineffective assistance of trial and appellate counsel. The post-conviction court denied his petition in March 2008, and the Court of Appeals affirmed. Shaw v. State, 898 N.E.2d 465, 470 (Ind. Ct. App. 2008), trans. denied. Shaw thereafter filed a petition for writ of habeas corpus, which was denied by the U.S. District Court, Southern District of Indiana. Shaw v. Mize, No. 2:09-cv-325-JMS-WGH (S.D. Ind. 2012).
But the U.S. Court of Appeals for the Seventh Circuit vacated the District Court’s judgment, holding that Shaw’s appellate counsel’s performance was deficient in several respects. Shaw v. Wilson, 721 F.3d 908 (7th Cir. 2013), reh’g denied, reh’g en banc denied, cert. denied, 134 S.Ct. 2818 (2014). The Seventh Circuit remanded “with instructions to issue a writ of habeas corpus unless the State of Indiana grants Shaw a new appeal within 120 days after issuance of the mandate.” Id. at 919-20. A new appeal was opened and held in abeyance until the State’s petition for certiorari was denied.
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In Shaw’s second direct appeal, he argued that he was prejudiced when, 17 months after the omnibus date, the State amended the charging information to charge him with murder instead of Class B felony battery. But the Court of Appeals affirmed the conviction and sentence, holding that Shaw failed to demonstrate substantial prejudice. Shaw v. State, 82 N.E.3d 886 (Ind. Ct. App. 2017), reh’g denied, trans. denied.
Shaw filed another petition for post-conviction relief, alleging that his appellate attorney failed to properly argue the issues in his new direct appeal. The trial court dismissed the petition as an unauthorized successive petition for post-conviction relief under
Shaw seeks transfer, and the Public Defender of Indiana has filed an amicus brief in support of transfer. For the reasons discussed below, we grant transfer, thus vacating the Court of Appeals decision, and remand for further proceedings consistent with this opinion.
Discussion and Decision
“Any person who has been convicted of, or sentenced for, a crime by a court of this state” has the right to collaterally attack that conviction or sentence through a petition for post-conviction relief.
Post-conviction proceedings are not a “super-appeal”; rather, the grounds enumerated
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available on direct appeal.’” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013), quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).
In affirming the trial court’s dismissal of Shaw’s second post-conviction petition as unauthorized under
Azania was sentenced to death for murder. His sentence was vacated in post-conviction proceedings, but after a retrial, Azania was again sentenced to death, and his second death sentence was affirmed on direct appeal. As is relevant here, Azania filed a second post-conviction petition with the trial court and then tendered to this Court a “Notice of Filing Post-Conviction Petition … or in the Alternative, Petition for Successive Post-[C]onviction Relief[ ],” alleging that his counsel was ineffective during his retrial and second direct appeal. Id. at 250. The State responded with a motion titled “State’s Response to Petition for Leave to File Successive Petition for Post-Conviction Relief.” Id.
This Court directed the post-conviction court to dismiss Azania’s petition, holding that “[i]nasmuch as [the petition] sought successive post-conviction relief, it was procedurally improper to file the petition without authorization from this Court.” Id. (Azania was, however, authorized to pursue one of the four claims he raised in this petition by amending an authorized successive post-conviction petition that was already pending.)
But Azania did not squarely address the matter at issue here: whether a post-conviction petition should be considered a “second” or “successive” petition if the errors it asserts arose from the proceedings on remand. Azania’s apparent efforts to hedge his bets by filing the second petition with the post-conviction court while notifying — or, in the alternative, seeking the leave of — this Court to file a successive post-conviction petition made it unnecessary for the Court to establish parameters on what makes a petition successive.
Here, the issues and events Shaw raises in his second petition for post-conviction relief had not yet occurred when he filed his first post-conviction petition in April 2007. While a second or successive post-conviction petition remains subject to the screening procedure outlined in
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As we have held that a post-conviction petition that addresses only these proceedings on remand is not a “second” or “successive” petition, and therefore does not require authorization under
Conclusion
Troy Shaw filed a petition for post-conviction relief, alleging the ineffective assistance of counsel in his second direct appeal. Because the petition addressed only the grounds arising from the second appeal, it was not a “second” or “successive” petition as defined by
All Justices concur.
ATTORNEY FOR APPELLANT, TROY SHAW
Michael K. Ausbrook
Bloomington, Indiana
Michael P. Smyth, Certified Legal Intern
Indiana University Maurer School of Law
Bloomington, Indiana
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ATTORNEYS FOR APPELLEE, STATE OF INDIANA
Curtis T. Hill, Jr.
Attorney General of Indiana
Andrew A. Kobe
Deputy Attorney General
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE, THE PUBLIC DEFENDER OF INDIANA
Stephen T. Owens
Public Defender of Indiana
Jonathan O. Chenoweth
Deputy Public Defender
Indianapolis, Indiana