Jermaine Carl Davis v. State of Indiana (mem. dec.)

J
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 30 2020, 9:53 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Jermaine Carl Davis                                      Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jermaine Carl Davis,                                     December 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-PC-489
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Natalie Bokota,
Appellee-Plaintiff.                                      Magistrate Judge
                                                         Trial Court Cause No.
                                                         45G04-1708-PC-05



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020                Page 1 of 17
                                             Case Summary
[1]   Jermaine Davis appeals the post-conviction court’s (“PC Court”) denial of his

      petition for post-conviction relief (“PCR”). We affirm.


                                                    Issues
[2]   Davis raises several issues, which we revise and restate as:


            I.         Whether Davis received ineffective assistance of trial
                       counsel.

           II.         Whether Davis received ineffective assistance of appellate
                       counsel.

                                                     Facts
[3]   The facts as set out in Davis’s direct appeal follow:


                 On August 21, 2013, Willie Bailey was at a gas station in Gary
                 when Davis approached him. Davis was the ex-boyfriend of
                 Bailey’s sister, Erica. Davis told Bailey that his sister was a
                 “wh***” and threatened to hurt Bailey. Tr. Vol. I p. 65. Outside
                 the gas station, Davis again approached Bailey, called his sister
                 names, and threatened to hurt Bailey. Bailey thought Davis was
                 going to hit him, so Bailey punched Davis, knocking him out.
                 Davis later called Erica and said that he was “going to shoot
                 [their] house up.”

Id. at 134.

Davis also called Erica and
                 Bailey’s aunt, Glynda Randolph, and told her that he was going
                 to kill Bailey.


                 The next day, the Bailey family went to a funeral. Bailey rode
                 home that evening with Erica and her friend. As Bailey unlocked
                 the front door of his home, Davis approached him from behind
                 and shot Bailey repeatedly. Erica was sitting in the car with her
                 friend and saw Davis shoot Bailey. Bailey was shot five times

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 2 of 17
        and is now paralyzed from the waist down. Immediately after
        the shooting, Bailey’s brother opened the front door, and Bailey
        told his brother and aunt that Davis shot him. Bailey’s brother
        saw Davis running away. When officers arrived at the scene,
        Bailey told them that Davis shot him. While in the hospital,
        Bailey also identified Davis as the shooter in a photo array. The
        next day, Erica also gave a statement to officers and identified
        Davis as the shooter. Four cartridge casings and three spent
        bullets were recovered at the scene. Melissa Oberg of the Indiana
        State Police Laboratory determined that the four cartridge
        casings were fired from the same weapon and that the three
        bullets were fired from the same weapon.


        The State charged Davis with Class A felony attempted murder,
        Class B felony aggravated battery, Class C felony battery by
        means of a deadly weapon, Class C felony battery resulting in
        bodily injury, and Class D felony pointing a firearm. On the
        Saturday before the trial, the deputy prosecutor informed Davis’s
        counsel that he had just discovered Oberg’s lab report. The
        deputy prosecutor immediately provided the report to Davis’s
        counsel. Prior to the start of the trial, the parties discussed the
        State’s late disclosure of the lab reports. Davis noted that a “big
        theory of [the] defense was that no analysis of any evidence
        collected was done . . . .”

Id. at 10.

In response to the trial
        court’s questioning, Davis’s attorney noted that the defenses were
        “alibi and lack of investigation.”

Id. at 11.

The trial court noted
        that the “paperwork saying that the casings came from the same
        or similar firearm does not inhibit your ability to present an alibi
        defense” and denied Davis’s motion for a continuance.

Id. On the first

day of the trial, Davis’s counsel informed the trial
        court:


                Judge, we have an issue. When meeting with my client,
                yesterday, he advised me that he does not have confidence
                in my abilities to represent him with respect to the trial this
Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 3 of 17
                      week and I believe there is a break-down of
                      communication and he, on his behalf, he wants me to
                      request either a continuance of the trial or he said he wants
                      a new lawyer.

Id. at 3.

The trial court informed Davis that he was entitled to a
              public defender but not the public defender of his choosing. The
              trial court then asked Davis if he had the money to hire an
              attorney, and Davis responded that he did not. After a
              discussion of preparation done by his attorney and prior
              attorneys, the trial court denied the motion for a continuance.
              Later, immediately before jury selection began, Davis told the
              trial court that his family was going to hire an attorney. The trial
              court informed Davis that he had two and one-half years since he
              was charged to secure a private attorney and that the trial would
              proceed as planned. The trial court then told Davis that if he
              hired a private attorney and had the attorney in court the next
              morning, he would “consider it.”

Id. at 36.

The next morning,
              Davis had not hired a private attorney, and the trial continued as
              planned.


              The jury found Davis guilty of the charges except for the pointing
              a firearm charge. The trial court merged the remaining counts
              into the attempted murder conviction and sentenced Davis to
              forty-five years in the Department of Correction.


      Davis v. State, No. 45A03-1606-CR-1636, slip op. at 2-5 (Ind. Ct. App. Apr. 12,

      2017), trans. denied.


[4]   Attorney Phillip King represented Davis at the trial, and Attorney Scott King

      represented Davis at sentencing and during the filing of a motion to correct

      error. Attorney Kristin Mulholland represented Davis on direct appeal.



      Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 4 of 17
[5]   On direct appeal, Davis raised two issues: (1) whether the trial court properly

      denied Davis’s motion for a continuance following the State’s late disclosure of

      lab reports; and (2) whether the trial court violated Davis’s constitutional right

      to counsel when it denied his motion for a continuance to hire a different

      attorney. This Court affirmed, and our Supreme Court denied transfer.


[6]   In August 2017, Davis filed a petition for post-conviction relief, which he

      amended in April 2019. Davis’s amended petition for ineffective assistance of

      counsel alleged: (1) ineffective assistance of trial counsel for failing to properly

      investigate, to interview witnesses, to consult with Davis, to cross-examine

      certain witnesses effectively, to object to certain evidence, to adequately prepare

      for trial, and to prepare for sentencing; (2) ineffective assistance of appellate

      counsel for failing to raise certain issues; (3) ineffective assistance of post-

      conviction counsel; (4) the trial court erred by denying Davis’s request for a

      change of counsel, failing to grant a mistrial, and admitting certain evidence;

      and (5) prosecutorial misconduct. After multiple evidentiary hearings, the PC

      Court entered findings of fact and conclusions of law denying Davis’s petition

      for ineffective assistance of counsel. Davis now appeals.


                                                  Analysis
[7]   Post-conviction proceedings are civil proceedings in which a defendant may

      present limited collateral challenges to a conviction and sentence. Gibson v.

      State, 

133 N.E.3d 673

, 681 (Ind. 2019), reh’g denied, cert. denied; Ind. Post-

      Conviction Rule 1(1)(b). “The scope of potential relief is limited to issues

      unknown at trial or unavailable on direct appeal.” 

Gibson, 133 N.E.3d at 681

.
      Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 5 of 17
      “Issues available on direct appeal but not raised are waived, while issues

      litigated adversely to the defendant are res judicata.”

Id. The petitioner bears

      the burden of establishing his claims by a preponderance of the evidence. Id.;

      P.-C.R. 1(5).


[8]   When, as here, the petitioner “appeals from a negative judgment denying post-

      conviction relief, he ‘must establish that the evidence, as a whole, unmistakably

      and unerringly points to a conclusion contrary to the post-conviction court’s

      decision.’” 

Gibson, 133 N.E.3d at 681

(quoting Ben-Yisrayl v. State, 

738 N.E.2d 253

, 258 (Ind. 2000), cert. denied, 

534 U.S. 1164

, 

122 S. Ct. 1178

(2002)). When

      reviewing the PC court’s order denying relief, we will “not defer to the post-

      conviction court’s legal conclusions,” and the “findings and judgment will be

      reversed only upon a showing of clear error—that which leaves us with a

      definite and firm conviction that a mistake has been made.” Bobadilla v. State,

      

117 N.E.3d 1272

, 1279 (Ind. 2019). When a petitioner “fails to meet this

      ‘rigorous standard of review,’ we will affirm the post-conviction court’s denial

      of relief.” 

Gibson, 133 N.E.3d at 681

(quoting DeWitt v. State, 

755 N.E.2d 167

,

      169-70 (Ind. 2001)).


                              I. Ineffective Assistance of Trial Counsel

[9]   Davis argues that his trial counsel rendered ineffective assistance of counsel.

      To prevail on his ineffective assistance of trial counsel claims, Davis must show

      that: (1) his counsel’s performance fell short of prevailing professional norms;

      and (2) his counsel’s deficient performance prejudiced his defense. Gibson, 133


      Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 6 

of 17 N.E.3d at 682

(citing Strickland v. Washington, 

466 U.S. 668

, 687, 

104 S. Ct. 2052

, 2064 (1984)).


[10]   A showing of deficient performance “requires proof that legal representation

       lacked ‘an objective standard of reasonableness,’ effectively depriving the

       defendant of his Sixth Amendment right to counsel.”

Id. (quoting Overstreet v.

       State, 

877 N.E.2d 144

, 152 (Ind. 2007), cert. denied, 

555 U.S. 972

, 

129 S. Ct. 458

       (2008)). We strongly presume that counsel exercised “reasonable professional

       judgment” and “rendered adequate legal assistance.”

Id. Defense counsel enjoys

“considerable discretion” in developing legal strategies for a client.

Id. This “discretion demands

deferential judicial review.”

Id. Finally, counsel’s “[i]solated

mistakes, poor strategy, inexperience, and instances of bad judgment

       do not necessarily render representation ineffective.”

Id. [11]

  “To demonstrate prejudice, the defendant must show a reasonable probability

       that, but for counsel’s errors, the proceedings below would have resulted in a

       different outcome.”

Id. “A reasonable probability

is a probability sufficient to

       undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694

, 104 S. Ct.

       at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v.

       State, 

845 N.E.2d 1027

, 1031 (Ind. 2006). Most ineffective assistance of counsel

       claims can be resolved by a prejudice inquiry alone.

Id. [12]

  On appeal, Davis raises multiple allegations of ineffective assistance of trial

       counsel. Specifically, Davis argues his trial counsel was ineffective for: (1)

       failing to properly prepare for the trial; (2) failing to cross-examine Willie Bailey


       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 7 of 17
       and William Wright effectively; and (3) failing to object to closing arguments by

       the deputy prosecutor. 1 The PC Court found no deficient performance or

       prejudice concerning these claims, and we cannot say the PC Court’s findings

       of fact and conclusions of law are clearly erroneous.


                                                A. Failure to Prepare

[13]   Davis first argues that his trial counsel failed to properly prepare for the trial by

       failing to: (1) investigate late-disclosed ballistics lab report; 2 (2) consult with

       Davis; (3) interview Cedric Miller; and (4) prepare a proper defense. Davis,

       however, has failed to demonstrate that his trial counsel’s performance was

       deficient or that he was prejudiced by any alleged deficiency.




       1
         Davis also argues that trial counsel: (1) failed to cross-examine Glynda Randolph effectively; (2) failed to
       investigate Erica Bailey’s criminal history; and (3) failed to prepare properly for the filing of the motion to
       correct error. Davis, however, did not raise these arguments in his petition for ineffective assistance of
       counsel. Issues not raised in a petition for post-conviction relief cannot be raised for the first time on appeal.
       Allen v. State, 

749 N.E.2d 1158

, 1171 (Ind. 2001) (holding that claims were “unavailable” where the petitioner
       did not raise the issues in his initial petition for post-conviction relief or in any of his three amended
       petitions), cert. denied, 

535 U.S. 1061

, 

122 S. Ct. 1925

(2002). Davis also argues that trial counsel failed to
       object to the deputy prosecutor vouching for a witness during closing arguments. This claim, however, was
       improperly presented as a freestanding claim in the petition for post-conviction relief, not in the context of
       ineffective assistance of trial counsel. Accordingly, the PC Court’s denial of the claim is not clearly
       erroneous.
       2
         The PCR record includes lab reports dated December 19, 2013 (ballistics), November 7, 2013 (latent
       impressions), October 29, 2013 (DNA). The ballistics lab report identified Item 004 (one cartridge case) and
       Item 009T (three bullets and cartridge cases test fired in the firearm in Item 009). The
       “Results/Opinions/Interpretations” section of the report merely provided:
              The cartridge case in Item 004 and a test fired cartridge case from Item 009T were entered into
              the IBIS database.
              The test fires In Item 009T will be returned to the contributor. It is recommended that the test
              fires are retained for a period of at least five years.
       PCR Exhibit p. 12. Davis makes no argument on appeal regarding the DNA or latent impressions reports.

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020                     Page 8 of 17
[14]   Much of Davis’s argument centers on the ballistics lab report, which was not

       provided to Davis’s trial counsel until the weekend before the trial. As a result

       of the late-discovered evidence, trial counsel asked for a continuance of the

       trial, which the trial court denied. We noted on direct appeal:


                  At the trial, Davis’s main defenses were that he had an alibi and
                  that the investigation was shoddy. The admission of the lab
                  report did not harm either defense. The [ballistics] lab report
                  merely noted that the four cartridge casings were fired from the
                  same weapon and that the three bullets were fired from the same
                  weapon. The [ballistics] lab report did not indicate who fired the
                  weapon and did not affect Davis’s alibi defense.


       Davis, No. 45A03-1606-CR-1636, slip op. pp. 5-6.


[15]   At the post-conviction hearing, Davis argued that his trial counsel failed to

       properly prepare for trial by the failure to realize that the ballistics lab report

       was not in the file and the failure to timely request the lab report. In the post-

       conviction appeal, however, Davis argues that his trial counsel “could have

       argued that the victim [was] shot with a .45 caliber weapon and the State had

       submitted a .9 mm handgun for ballistic testings.” Appellant’s Br. p. 14. The

       ballistics lab report apparently established that the casings and bullets found at

       the scene were all fired from the same weapon, which was not the handgun

       submitted for testing. 3 Our review of the record, however, reveals no

       information regarding the .9mm handgun submitted for testing and its




       3
           This is not evident from the lab report submitted at the PCR hearing.


       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 9 of 17
       connection to Davis, if any. The fact that a random .9mm handgun was

       submitted for testing would not have made it more or less likely that Davis was

       the shooter of the .45 caliber handgun. Given this lack of evidence, Davis has

       simply failed to establish that his trial counsel was deficient for failing to raise

       the issue. Moreover, Davis has failed to establish that his trial counsel’s

       preparation and investigation related to the ballistics lab report impaired

       Davis’s defenses or that Davis was actually prejudiced.


[16]   Cedric Miller testified at the PCR hearing that he received a call from his

       cousin, Mason, shortly after the shooting and learned that Bailey had been shot.

       Davis’s name was not mentioned during the conversation, and the family did

       not know who shot Bailey. The PC Court found: “Although Davis considers

       Miller to be a vital witness overlooked by counsel, the evidence does not prove

       that counsel overlooked him or that Miller possessed any relevant information

       concerning the case generally or the identity of the shooter specifically.”

       Appellant’s App. Vol. II p. 202. The PC Court’s finding is not clearly

       erroneous. Even if trial counsel had called Miller as a witness and the

       testimony had been admissible, there is no reasonable probability that the result

       of the proceeding would have been different.


[17]   Overall, Davis has simply failed to prove that his trial counsel’s performance

       was deficient as related to the trial preparation. Evidence presented at the

       ineffective assistance of counsel hearings demonstrated that Attorney Phillip

       King has been an attorney since 2003, and he was the second attorney assigned

       to Davis’s case. When King was assigned to the case, he reviewed the case file

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 10 of 17
       from Davis’s prior attorney, reviewed the State’s discovery, reviewed the prior

       depositions, hired an investigator to contact witnesses, attempted to locate

       Davis’s alibi witnesses and a possible suspect, attempted to confer with Davis,

       and prepared a theory for the defense. The defense theory included

       insufficiency of the evidence, poor eyewitness identifications, and a lack of

       proper investigation. Despite King’s investigation efforts, he was unable to

       locate an unknown female that allegedly spoke to the Gary police on the night

       of the shooting. The Gary police did not identify the woman in their report.

       Further, alibi witnesses identified by Davis did not cooperate with King.


[18]   Davis argues that King only met with Davis one time. According to King,

       however, he spoke with Davis several times before the trial. After court

       hearings, Davis would leave immediately and would not stay to discuss his

       case. King made arrangements to meet with Davis, but Davis repeatedly

       cancelled the appointments. King met with Davis the Sunday before the trial,

       but Davis became upset and “cut [the meeting] short.” PCR Tr. Vol. II p. 35.

       King was “frustrated” by Davis’s “unwillingness to cooperate.”

Id. at 37. [19]

  None of Davis’s allegations related to his trial counsel’s lack of preparation for

       the trial amount to deficient performance nor do they establish that Davis was

       prejudiced by the alleged deficient performance. We cannot say the PC Court’s

       denial of this claim was clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 11 of 17
                                        B. Effective Cross-Examination

[20]   Next, Davis argues that he received ineffective assistance of counsel because his

       trial counsel failed to effectively cross-examine Willie Bailey and William

       Wright. 4 Davis further contends that trial counsel failed to impeach Bailey and

       Wright with prior inconsistent statements from their depositions. The PC

       Court analyzed the alleged deficiencies and found that the lack of cross-

       examination amounted to either a strategic decision or that Davis’s trial counsel

       had indeed impeached Bailey and Wright with the inconsistencies.


[21]   Our review of Bailey’s and Wright’s testimony shows that trial counsel did, in

       fact, impeach both by confronting both with inconsistencies in their testimony.

       Most of the other instances raised by Davis can be explained as strategy

       decisions, as stated by the PC Court. To the extent the instances cannot be

       explained as strategy, we again note that a showing of deficient performance is

       not supported by isolated mistakes. 

Gibson, 133 N.E.3d at 682

. Rather, such a

       showing “requires proof that legal representation lacked ‘an objective standard

       of reasonableness,’ effectively depriving the defendant of his Sixth Amendment

       right to counsel.”

Id. Even if there

are isolated instances of inconsistencies that

       Davis’s trial counsel should have explored on cross-examination, Davis has




       4
         Davis also briefly contends that his trial counsel should have cross-examined Oberg regarding the lab
       report. As with Davis’s arguments related to his trial counsel’s preparation, Davis has similarly failed to
       demonstrate that he was prejudiced by this lack of cross-examination regarding the lab report.

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020                  Page 12 of 17
       failed to demonstrate that his trial counsel’s performance was deficient. The PC

       Court’s denial of this claim is not clearly erroneous.


                                   C. Objection to Closing Arguments

[22]   Next, Davis argues that he received ineffective assistance of trial counsel

       because trial counsel failed to object to alleged inflammatory comments during

       the deputy prosecutor’s closing arguments. These comments relate to Bailey’s

       confinement to a wheelchair, Bailey’s inability to give his daughter away at her

       wedding, and Bailey’s inability to go to a daddy/daughter dance. The PC

       Court rejected this claim and found:


               Trial counsel made a tactical decision to not object to the
               majority of the State’s comments during closing arguments. Like
               many attorneys, he considers the statements in the light of their
               context: arguments, not evidence. When the State asked the jury
               to put itself in the victim’s place however, counsel did object and
               the objection was sustained. Tr. Vol. II, pp. 100-01. Davis fails
               to prove deficient performance.


       Appellant’s App. Vol. II p. 206.


[23]   Trial counsel did, in fact, object to the deputy prosecutor’s comment regarding

       the victim during closing arguments. Moreover, trial counsel’s lack of objection

       to other comments during closing arguments was a matter of strategy and a

       tactical decision, which does not support a finding of deficient performance.

       The PC Court’s finding that Davis failed to prove deficient performance is not

       clearly erroneous.



       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 13 of 17
                            II. Ineffective Assistance of Appellate Counsel

[24]   Davis next argues that he received ineffective assistance of appellate counsel.

       “The standard for gauging appellate counsel’s performance is the same as that

       for trial counsel.” Weisheit v. State, 

109 N.E.3d 978

, 992 (Ind. 2018), reh’g

       denied, cert. denied, 

139 S. Ct. 2749

(2019). Our Supreme Court has held that

       appellate ineffective assistance of counsel claims “generally fall into three basic

       categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure

       to present issues well.” Garrett v. State, 

992 N.E.2d 710

, 724 (Ind. 2013).


                                          A. Ballistics Lab Report

[25]   Davis argues that his appellate counsel was ineffective in her arguments related

       to the late-disclosed ballistics lab report. Appellate counsel raised the issue in

       the context of Davis’s motion to continue, but Davis contends appellate counsel

       should have raised the issue differently.


[26]   This claim falls in the category of failure to present an issue well. “Claims of

       inadequate presentation of certain issues . . . are the most difficult for convicts

       to advance and reviewing tribunals to support.” 

Weisheit, 109 N.E.3d at 992

.

       To the extent that Davis’s appellate counsel failed to present zealous arguments

       regarding the ballistics lab report, “an ineffectiveness challenge resting on

       counsel’s presentation of a claim must overcome the strongest presumption of

       adequate assistance.” Bieghler v. State, 

690 N.E.2d 188

, 196 (Ind. 1997), cert.

       denied, 

525 U.S. 1021

, 

119 S. Ct. 550

(1998). “Judicial scrutiny of counsel’s

       performance, already ‘highly deferential,’ is properly at its highest.”

Id. Court of Appeals

of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 14 of 17
       (internal citation omitted). “Relief is only appropriate when the appellate court

       is confident it would have ruled differently.”

Id. [27]

  According to Davis, his appellate counsel simply raised the same issues raised

       in his motion to correct error. Davis argues that his appellate counsel should

       have also raised the issue of the firearm discussed in the ballistics lab report

       because the “firearm could have helped Davis’s case since the victim was shot

       with a .45 caliber bullet and the gun that was in the lab reports was a .9mm.”

       Appellant’s Br. p. 30. We have already rejected this argument in the context of

       Davis’s ineffective assistance of trial counsel claim. We again note that the

       record reveals no information regarding the .9mm handgun submitted for

       testing and its connection to Davis, if any. Even if appellate counsel had made

       the argument regarding the .9 mm handgun, there is no indication that this

       argument would have resulted in a different ruling on direct appeal. The PC

       Court’s denial of this claim is not clearly erroneous.


                               B. Ineffective Assistance of Trial Counsel

[28]   Next, Davis seems to argue that appellate counsel should have raised a claim of

       ineffective assistance of trial counsel. To show that appellate counsel was

       ineffective for failing to raise an issue on appeal, thus resulting in waiver for

       collateral review, “the defendant must overcome the strongest presumption of

       adequate assistance, and judicial scrutiny is highly deferential.” 

Garrett, 992 N.E.2d at 724

. To evaluate the performance prong when appellate counsel

       waived issues upon appeal, we look at the following: (1) whether the unraised

       issues are significant and obvious from the face of the record; and (2) whether
       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 15 of 17
       the unraised issues are “clearly stronger” than the raised issues.

Id. “If the analysis

under this test demonstrates deficient performance, then we evaluate

       the prejudice prong which requires an examination of whether ‘the issues which

       . . . appellate counsel failed to raise would have been clearly more likely to

       result in reversal or an order for a new trial.’”

Id. (quoting Bieghler, 690

N.E.2d

       at 194).


[29]   The PC Court denied this claim and found:


               Davis claims that appellate counsel should have raised ineffective
               assistance of trial counsel. When ineffective assistance of trial
               counsel is not raised on direct appeal, it may be raised for the first
               time in a petition for post-conviction relief. Since ineffective
               assistance of trial counsel is available for post-conviction review,
               Davis was not prejudiced by appellate counsel’s omission of this
               issue on direct appeal. Davis fails to establish deficient
               performance or prejudice concerning appellate counsel’s
               representation.


       Appellant’s App. Vol. II p. 209 (internal citations omitted).


[30]   Our Supreme Court has noted that “the failure to litigate a claim of ineffective

       assistance of counsel in a direct appeal does not preclude a petitioner from

       seeking post-conviction relief on that basis.” Landis v. State, 

749 N.E.2d 1130

,

       1133 (Ind. 2001). Moreover, “if a claim of ineffective assistance of counsel has

       been litigated on direct appeal, it is not available in post-conviction

       proceedings.”

Id. See also Jewell

v. State, 

887 N.E.2d 939

, 941 (Ind. 2008) (“A

       criminal defendant claiming ineffective assistance of trial counsel is at liberty to

       elect whether to raise this claim on direct appeal or in post-conviction
       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 16 of 17
       proceedings. But if raised on direct appeal, the appellate resolution of the issue

       acts as res judicata and precludes its relitigation in subsequent post-conviction

       relief proceedings.”) (internal citation omitted). Our Supreme Court held in

       Conner v. State, 

711 N.E.2d 1238

, 1252 (Ind. 1999), cert. denied, 

531 U.S. 829

,

       

121 S. Ct. 81

(2000), that “because appellate counsel is not required to raise this

       claim [of ineffective assistance of trial counsel] on direct appeal, appellate

       counsel’s failure to do so was not deficient representation.”


[31]   As in Conner, Davis was not prejudiced by appellate counsel’s failure to raise a

       claim of ineffective assistance of trial counsel on direct appeal. Such a claim

       was still available in post-conviction proceedings. The PC Court’s denial of

       Davis’s claim is not clearly erroneous.


                                                 Conclusion
[32]   The PC Court’s denial of Davis’s petition for ineffective assistance of counsel is

       not clearly erroneous. We affirm.


[33]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-489 | December 30, 2020   Page 17 of 17

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