In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1628
T ROY R. S HAW,
Petitioner-Appellant,
v.
B ILL W ILSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:09-cv-325-JMS-WGH—Jane E. Magnus-Stinson, Judge.
A RGUED A PRIL 30, 2013—D ECIDED JULY 24, 2013
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. Troy Shaw and two other men
were arrested and charged by the State of Indiana in an
information with aggravated battery after Brett King
was beaten to death outside a motel in Fort Wayne.
Shaw denied participating in King’s beating, but the
other two men, in exchange for prison sentences of
under three years, agreed to plead guilty to voluntary
manslaughter and to testify against Shaw. The state then
2 No. 12-1628
moved to amend the information to elevate the charge
against Shaw from aggravated battery to murder. The
trial court granted the state’s motion over Shaw’s objec-
tion that the murder charge was barred by an Indiana
statue that limits the time for amending charging docu-
ments. Shaw was convicted after a jury trial and sen-
tenced to 60 years in prison.
On direct appeal, Shaw’s new lawyer abandoned trial
counsel’s contention that the information was amended
too late and instead pressed a futile claim that the
evidence against Shaw was insufficient to support his
conviction. Not surprisingly, the appellate court was
unpersuaded; appellate counsel dropped the case at that
point and did not file a petition to transfer with the
Supreme Court of Indiana. Shaw persisted with a
petition for post-conviction relief in the Indiana courts,
but that too failed all the way up the line to the state
supreme court. Shaw then turned to the federal court
with a petition under 28 U.S.C. § 2254. There he argued
again that his appellate lawyer’s decision to forgo chal-
lenging the validity of the amended information in
favor of a frivolous sufficiency challenge constituted
ineffective assistance of counsel in violation of the
Sixth Amendment. The district court denied relief, but
we conclude—with full cognizance of the high bar that
such a case must clear—that the Indiana appellate
court’s decision to the contrary is an unreasonable ap-
plication of Strickland v. Washington, 466 U.S. 668 (1984),
and the elaboration on Strickland of Smith v. Robbins,
528 U.S. 259 (2000). We therefore vacate the judgment of
the district court and remand with instructions to issue
No. 12-1628 3
a writ of habeas corpus unless the State of Indiana
grants Shaw a new direct appeal in which he will have
the opportunity to advance the argument that his
appellate counsel should have raised.
I
A. Offense and Trial
Shaw was 18 years old and had just finished high school
at the time of the deadly attack that landed him in
prison. Days earlier, he had been recruited to sell
magazine subscriptions as part of a traveling sales team,
and he arrived in Fort Wayne, Indiana, with the team
on June 5, 2000. The trouble began when his boss, Eric
Werczynski, rented several motel rooms for the group
and in one of those rooms encountered and confronted
Brett King, an uninvited stranger. King fled, but as he
ran away from the motel, Werczynski yelled to his em-
ployees, “Get the motherfucker!” Two of them, Steven
Johnson and Chris Starling, obliged, chasing King
down and knocking him into a ditch. Several
other team members then joined Johnson and Starling
in punching and kicking King. He died in the ditch
from multiple blows to his head.
The attackers had disbanded by the time police arrived,
but Johnson, Shaw, and a third team member, Benjamin
Brooks, were arrested and charged with aggravated
battery. Shaw denied even being present during the
fatal beating, but Johnson and Brooks admitted partici-
pating, and at some point they told authorities that
4 No. 12-1628
Shaw had been the most aggressive of the attackers.
The two negotiated sentences of two and a half years in
prison (eight-year sentences with five and half of those
years suspended) in exchange for pleading guilty to
involuntary manslaughter and agreeing to testify
against Shaw.
After Johnson and Brooks cut their plea deal, the state
moved to amend the information to charge Shaw with
murder rather than aggravated battery. His trial lawyer
objected on the basis of Indiana Code § 35-34-1-5 (1982),
a statute that had long limited prosecutors’ discretion
to amend pending charges. The version of the statute
then in effect specified that an amendment of “substance”
could be made up to 30 days before the “omnibus date”
(defined by state law as “a point in time from which
various deadlines . . . are established,” I.C. § 35-36-8-1), and
an amendment of mere “form” could be made even later
if not prejudicial. Because the precise language of the
1982 version of the statute is important to Shaw’s case,
we set out the relevant portions here:
(b) The indictment or information may be amended
in matters of substance or form, and the names of
material witnesses may be added, by the prosecuting
attorney, upon giving written notice to the defendant,
at any time up to:
(1) thirty (30) days if the defendant is charged with
a felony; or
(2) fifteen (15) days if the defendant is charged only
with one (1) or more misdemeanors; before the omni-
bus date. When the information or indictment is
No. 12-1628 5
amended, it shall be signed by the prosecuting attor-
ney.
(c) Upon motion of the prosecuting attorney, the
court may, at any time before, during, or after the
trial, permit an amendment to the indictment or
information in respect to any defect, imperfection, or
omission in form which does not prejudice the sub-
stantial rights of the defendant.
(d) Before amendment of any indictment or infor-
mation other than amendment as provided in subsec-
tion (b) of this section, the court shall give all
parties adequate notice of the intended amendment
and an opportunity to be heard. Upon permitting
such amendment, the court shall, upon motion
by the defendant, order any continuance of the pro-
ceedings which may be necessary to accord the de-
fendant adequate opportunity to prepare his defense.
I.C. § 35-34-1-5 (1982).
Although no Indiana appellate court ever had invali-
dated an amendment under the 1982 law, in 1998 in Haak
v. Indiana, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana
Supreme Court held unequivocally that if an amend-
ment “was of substance, or prejudicial to the defendant
even if of form, it was impermissible under the statute”
from 30 days before the omnibus date. Shaw’s omnibus
date was July 31, 2000, and the amendment was not
proposed until 17 months later. Nevertheless, despite
the three-year-old precedent in Haak, the trial court
granted the state’s motion. Shaw’s attorney then asked
6 No. 12-1628
for a continuance to permit time to prepare a defense to
the murder charge, and he was given two months.
At trial, Johnson and Brooks both testified that Shaw
had kicked King in the head repeatedly and viciously. In
his defense, Shaw called an inmate who had shared a
jail cell with Brooks. The inmate testified that he over-
heard Brooks on the telephone blaming his boss,
Werczynski, for the fatal blows to King’s head. (According
to media reports, Werczynski and Starling were not
charged with a crime until after Shaw’s conviction, at
which point they were charged, respectively, with
“aiding battery” and “assisting a criminal.” Starling
pleaded guilty and was sentenced to serve 18 months
in prison. Werczynski was convicted at trial and sen-
tenced to six years, of which he was expected to
serve under three. See Sara Eaton, 5th Salesman Gets 6
Years for Role in Motel Slaying, FORT W AYNE J. G AZETTE
(Aug. 12, 2003).) Shaw testified as well, insisting that
he had gone to sleep rather than follow the crowd to the
ditch where King was killed. The jury believed Johnson
and Brooks and found Shaw guilty of murder.
A public defender, Gregory Miller, handled Shaw’s
appeal and settled on a single appellate argument: The
prosecution’s evidence was insufficient to support the
jury’s verdict. Miller filed a short brief in which he ob-
served that “there is conflicting testimony as to whether
the Defendant, Troy Shaw, was in the ditch where
Brett King was murdered.” This observation was both
true and catastrophic for Shaw’s appeal; it amounted to
a concession that the appeal was doomed because
No. 12-1628 7
Indiana courts (like federal courts) must resolve all evi-
dentiary conflicts in the prosecution’s favor, and they
must reject a sufficiency challenge unless no “reasonable
trier of fact” could have found the defendant guilty. See
Jackson v. Indiana, 925 N.E.2d 369, 375 (Ind. 2010). Shaw’s
conviction was affirmed in a short opinion deferring to
the jury’s assessment of the witnesses’ credibility. See
Shaw v. Indiana, No. 02A03-0205-CR-132 (Ind. Ct. App.
May 7, 2003).
B. Fajardo v. Indiana
Roughly four years after Shaw lost his direct appeal,
the Indiana Supreme Court revisited the issue of
untimely amendments of substance in Fajardo v. Indiana,
859 N.E.2d 1201 (Ind. 2007). The trial court in that case
had allowed the prosecution to add a second count of
child molestation to the information after it concluded
that the amendment would not prejudice the defendant.
Tellingly, the Indiana Supreme Court reversed and con-
firmed that it meant what it had said in Haak about
the proper reading to be given to I.C. § 35-34-1-5. Citing
Haak and declaring that “the statute is clear,” the court
concluded that “[b]ecause the challenged amendment
in this case sought to modify the original felony infor-
mation in matters of substance, it was permissible only
up to thirty days before the omnibus date,” regardless of
prejudice. Id. at 1207-08. As a result, the court vacated
the defendant’s second conviction. Id. at 1208.
The state supreme court noted in Fajardo that for
decades Indiana law had strictly limited prosecutors’
8 No. 12-1628
discretion to amend pending charges. Indeed, under the
1970s version of the statute, amendments of substance
were prohibited entirely after arraignment. The court
also observed that decisions applying the 1982 version
of the statute had been “inconsistent and conflicting.”
Id. at 1205-07. Appellate panels, it acknowledged, had
disregarded the language of the statute even after Haak,
and one of the supreme court’s own post-Haak decisions,
Brown v. State, 728 N.E.2d 876, 879-80 (Ind. 2000), was
problematic because it conflated the issue of prejudice
with the question of substance versus form. See id. at 1206-
07, 1207 n.9. The amendment in Brown, however,
was determined to be one of form rather than sub-
stance, and so the analysis, though confused, did not
contradict Haak’s pronouncement about substantive
amendments.
After Fajardo was decided, the Indiana legislature
repudiated the decision by amending the statute to
allow substantive amendments to charging documents
at any time before trial if not prejudicial. See I.C.
§ 35-34-1-5(b) (2007); Joel M. Schumm, Recent Develop-
ments in Indiana Criminal Law and Procedure, 41 IND. L.
R EV. 955, 955-56 (2008).
C. State Postconviction Proceedings
After his conviction was upheld on direct appeal, Shaw
filed a postconviction petition in state court in which
he asserted that his appellate lawyer’s performance
had been deficient and prejudicial in that he abandoned
No. 12-1628 9
trial counsel’s promising challenge to the validity of
the amended information. Invoking the two-part analysis
of Strickland v. Washington, 466 U.S. 668 (1984), Shaw
argued that omitting the claim under Section 35-34-1-5
constituted deficient performance because that claim was
significantly stronger than the sufficiency challenge
that appellate counsel actually made. With respect to
prejudice, Shaw contended that the abandoned claim
likely would have succeeded if made, and his conviction,
like the defendant’s in Fajardo, would have been vacated.
The trial court rejected Shaw’s petition, and he
appealed to the Court of Appeals of Indiana. That court
conceded that attorney Miller possibly could have
argued that the text of Section 35-34-1-5 “required the
amendment to be dismissed, as was argued in Fajardo,”
though the court also stressed that case law was mostly
against him. Shaw v. Indiana, 898 N.E.2d 465, 470 (Ind. App.
Ct. 2008). Some decisions of the state supreme court
“included dicta indicating an amendment of substance
would be invalidated if it was untimely,” the court ex-
plained, but no amendment actually had been invalidated
under the 1982 version of the statute. Id. Instead, the court
continued, “a long line of Indiana decisions” had treated
amendments of substance and form identically, and
attorney Miller had testified during a hearing on
Shaw’s petition that he was unaware of any authority
that would have supported a challenge to the amended
information. Id. Under these circumstances, the court
reasoned, the trial court correctly found that Miller’s
performance was not deficient. (Unfortunately, no tran-
script of Miller’s testimony was included in the record,
10 No. 12-1628
and so we do not know whether he even familiarized
himself with the objection that trial counsel had made,
or if he indicated awareness of Haak. According to one
of Shaw’s state-court filings, Miller testified that “he
could not recall whether he had considered raising the
issue, or even whether he had realized that the
Charging Information had been amended.”) Touching
on the issue of prejudice, the state court said only that
“appellate counsel would not have been able to dem-
onstrate prejudice because Shaw had been granted
a continuance to prepare for trial.” Id.
D. Federal District Court
After the Indiana Supreme Court declined to hear
Shaw’s appeal, he filed his petition under 28 U.S.C. § 2254
in which he carries forward his argument that the
Indiana appellate court unreasonably applied Strickland
v. Washington to his claim of ineffective assistance of
appellate counsel. The district court, emphasizing
the deference to be given state courts under the
Antiterrorism and Effective Death Penalty Act (AEDPA),
asked “ ‘whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.’ ” Shaw
v. Mize, No. 2:09-cv-325-JMS-WGH, 2012 WL 527454, at *2
(S.D. Ind. Feb. 16, 2012) (quoting Harrington v. Richter,
131 S. Ct. 770, 788 (2011)). It concluded that such an
argument could be imagined, if one were to accept the
Indiana appellate court’s premise that, before Fajardo,
the support in Indiana law for the claim that suc-
ceeded in that case was so weak that no lawyer was
No. 12-1628 11
obliged to make the argument on behalf of any client. Id.
at *3.
II
Under Strickland v. Washington, attorney Miller’s repre-
sentation of Shaw cannot be found to be constitutionally
ineffective unless (1) his performance was deficient,
meaning it fell below an “objective standard of reasonable-
ness” informed by “prevailing professional norms” and
(2) his deficient performance prejudiced Shaw, meaning
that there is “a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 688, 694. In evalu-
ating an attorney’s performance, courts must defer
to any strategic decision the lawyer made that
falls within the “wide range of reasonable professional
assistance,” id. at 689, even if that strategy was
ultimately unsuccessful. And because of AEDPA an
extra layer of deference enters the picture: we will defer
to the Indiana appellate court’s determination that
Shaw received effective assistance of counsel unless
that determination is contrary to, or an unreasonable
application of, clearly established Supreme Court prece-
dent, or was based on an unreasonable determination
of the facts. 28 U.S.C. § 2254(d); Richter, 131 S. Ct. at 783-
84. An application of Supreme Court precedent is rea-
sonable—even if wrong in our view—so long as
fairminded jurists could disagree over its correctness. Id.
at 786. The combination of Strickland and Section 2254(d)
requires deference upon deference from federal courts
12 No. 12-1628
reviewing the constitutionality of state criminal convic-
tions. Id. at 788.
Before delving into the merits of this case, we must
address the state’s opening argument: that this court
is entirely prohibited from evaluating the Indiana
appellate court’s assessment of Shaw’s claim because
that claim involves a question of state law. As the state
correctly observes, federal courts are not permitted to
review a state court’s resolution of state-law questions.
Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010). Moreover,
although claims of ineffective assistance of counsel can
be premised on an attorney’s failure to raise state-
law issues, see Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); McNary v. Lemke, 708 F.3d 905, 920 (7th Cir. 2013);
Goff v. Bagley, 601 F.3d 445, 464 (6th Cir. 2010); Mason v.
Hanks, 97 F.3d 887, 892-94 (7th Cir. 1996), federal courts
reviewing such claims must defer to state-court precedent
concerning the questions of state law underlying the
defendant’s ineffectiveness claim, George v. Smith, 586
F.3d 479, 483-84 (7th Cir. 2009); Huusko v. Jenkins, 556
F.3d 633, 637 (7th Cir. 2009); Cole v. Young, 817 F.2d 412,
416 (7th Cir. 1987).
The state’s argument, however, misses the point
that Shaw is making. Shaw is not asking (and has no
reason to ask) that we second-guess an Indiana court
on the meaning of Section 35-34-1-5. Shaw is making a
simpler point: a competent lawyer in Indiana should
have recognized that there was a state statute under
which relief for his client was possible and would have
pursued that theory on appeal. An argument about
No. 12-1628 13
the validity of the state’s effort to amend the indictment
would have been materially stronger than the frivolous
sufficiency-of-the-evidence point that Miller raised.
With that much accepted, there is no further role for the
federal judiciary: whether the Indiana appellate court
would have been persuaded, or if not, whether the
Indiana Supreme Court would have granted transfer, is
immaterial. The state’s argument that even this kind of
comparative assessment is out of bounds, if accepted,
would foreclose federal review of almost any ineffective-
ness claim that rests on an attorney’s mishandling of a
state-law issue, no matter how egregiously deficient
the attorney’s performance. It is well established that a
defense attorney’s failure to raise a state-law issue can
constitute ineffectiveness. “[T]he constitutional right to
counsel, and its derivative right that counsel be at least
minimally effective, is unrelated to the source—whether
state or federal—of the defendant’s defenses. To argue
otherwise would be to attempt to resurrect an argument
that the Supreme Court implicitly rejected more than
half a century ago, when it held that the Fourteenth
Amendment entitled capital defendants who had, so far
as appears, no federal defenses to the assistance of coun-
sel.” Fagan v. Washington, 942 F.2d 1155, 1158 (7th Cir.
1991) (citing Powell v. Alabama, 287 U.S. 45, 71-72 (1932)).
A. Deficient Performance
Appellate lawyers are not required to present every
nonfrivolous claim on behalf of their clients—such a
14 No. 12-1628
requirement would serve to bury strong arguments in
weak ones—but they are expected to “select[] the most
promising issues for review.” Jones v. Barnes, 463 U.S. 745,
752-53 (1983). For this reason, if Miller abandoned a
nonfrivolous claim that was both “obvious” and “clearly
stronger” than the claim that he actually presented, his
performance was deficient, unless his choice had a
strategic justification. See Smith v. Robbins, 528 U.S. 259,
288 (2000) (approving this court’s “clearly stronger”
inquiry); see also Ramchair v. Conway, 601 F.3d 66, 73
(2d Cir. 2010); Caver v. Straub, 349 F.3d 340, 348 (7th Cir.
2003); Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir. 2003);
Cargle v. Mullin, 317 F.3d 1196, 1202-03 (10th Cir. 2003);
Winters v. Miller, 274 F.3d 1161, 1197 (7th Cir. 2001). This
standard is difficult to meet because the comparative
strength of two claims is usually debatable. But Smith
confirms that the theory is available. 528 U.S. at 288. We
evaluate Miller’s performance from the perspective of a
reasonable attorney at the time of Shaw’s appeal, taking
care to avoid “the distorting effects of hindsight.” Strick-
land, 466 U.S. at 689.
We conclude that this is one of the rare cases in
which counsel’s performance fell below the constitu-
tional minimum, and that the Indiana appellate court’s
conclusion otherwise was an unreasonable application
of Supreme Court precedent. Particularly given the con-
cession that the evidence could support either conviction
or acquittal, the sufficiency argument that Miller made
on Shaw’s behalf was so weak that pursuing it was the
equivalent of filing no brief at all. While sufficiency
challenges always place “an extremely difficult burden” on
No. 12-1628 15
the defendant because the evidence is viewed in the
light most favorable to the verdict, United States v.
Hosseini, 679 F.3d 544, 557 (7th Cir. 2012), cert. denied, 133
S. Ct. 623 (2012), the argument Miller presented was
a certain loser. We suspect this exercise in futility
was effectively a substitute for an Anders brief, see
Anders v. California, 386 U.S. 738 (1967), because in
Indiana appellate attorneys must “submit an ordinary
appellate brief . . . no matter how frivolous counsel
regards the claims to be,” Mosley v. State, 908 N.E.2d
599, 608 (Ind. 2009). Because Miller made a single
argument that any reasonable lawyer would have recog-
nized as dead on arrival, we have a situation close to
the one described in Smith v. Robbins, where counsel
erroneously refrains from filing a merits brief at all.
528 U.S. at 288. In that situation, the Court held, the
defendant need show only that “a reasonably competent
attorney would have found one nonfrivolous issue war-
ranting a merits brief.” Id. The same rule should obtain
if counsel raises only an entirely frivolous argument
and passes by another that is genuinely arguable
under the governing law.
That a claim challenging the validity of the amended
information would have been “obvious” at the time of
Shaw’s direct appeal is beyond question. Miller should
have learned of the potential claim while reviewing
the trial record because trial counsel carefully
preserved it by objecting (and, as Indiana case law re-
quires, requesting a continuance, see Kidd v. Indiana,
738 N.E.2d 1039, 1041-42 (Ind. 2000)). Trial counsel’s
preservation of a claim can make it obvious. See Suggs
16 No. 12-1628
v. United States, 513 F.3d 675, 678 (7th Cir. 2008)
(finding challenge to improperly admitted evidence to
be obvious because trial counsel had objected to the
admission and described the issue in a “pre-appeal brief
letter”); Mason v. Hanks, 97 F.3d 887, 894 (7th Cir. 1996)
(“That this issue was an obvious one to raise on appeal
is beyond dispute. Mason’s lawyer had, of course,
objected to [the hearsay statements] at trial.”). Considering
in addition the language of I.C. Section 35-34-1-5 (1982)
and the fact, stressed by Shaw, that dozens of similar
(though unsuccessful) challenges were documented
in published opinions, Miller’s abandonment of the ob-
jection to the amended information cannot be excused
on the basis that the claim was obscure or novel.
Nor can Miller’s abandonment of that claim be
excused on the basis that it would not have appeared
promising enough. This is a relative inquiry, and there
is no doubt that the amendment challenge had sig-
nificantly more promise than the sufficiency argument.
The amendment issue, far from being frivolous, had a
better than fighting chance at the time of his 2002
appeal considering the text of Section 35-34-1-5 and the
1998 statement in Haak that “if the amendment was of
substance . . . it was impermissible under the statute” from
30 days before the omnibus date. 695 N.E.2d at 951. Shaw
also cites other cases from the Indiana Supreme Court
that he says would have supported a challenge to the
amended information at the time of his appeal. The
most compelling among them are Wright v. Indiana, 593
N.E.2d 1192, 1197 (Ind. 1992), and Sharp v. Indiana, 534
N.E.2d 708, 714 (Ind. 1989), which both include declara-
No. 12-1628 17
tions that a charging document cannot be amended to
change the “identity of the offense” after the deadline
in Section 35-34-1-5. Similar statements are made in
appellate cases. See, e.g., Taylor v. Indiana, 677 N.E.2d 56
(Ind. Ct. App. 1997) (“The amendment here did not change
the theory of the case, change the identity of offense
charged, or cause prejudice to Taylor’s substantial
rights. Therefore, the amendment of the information in
this case was not error.”).
The state counters that the Indiana Supreme Court’s
reading of Section 35-34-1-5 in Fajardo sharply diverged
from that court’s prior understanding of the statute in
Haak and thus was a radical change in the law, not a
clarification. But that line of argument implicitly draws
us into the content of state law, and we have em-
phasized that this is forbidden territory. Once again, it is
necessary only to conclude that the amendment issue
was clearly stronger than the sufficiency argument, and
we have no trouble coming to that conclusion based
on both the language of the statute and the Indiana Su-
preme Court’s Haak decision.
Defense attorneys, it is true, are generally not obliged
to anticipate changes in the law, see Valenzuela v. United
States, 261 F.3d 694, 700 (7th Cir. 2001); Mayo v. Henderson,
13 F.3d 528, 533 (2d Cir. 1994), but in some instances
they are obliged to make an argument that is sufficiently
foreshadowed in existing case law. See Thompson v.
Warden, 598 F.3d 281, 288 (6th Cir. 2010) (“ ‘[C]ounsel’s
failure to raise an issue whose resolution is clearly fore-
shadowed by existing decisions might constitute inef-
18 No. 12-1628
fective assistance of counsel.’ ”) (quoting Lucas v. O’Dea,
179 F.3d 412, 420 (6th Cir. 1999)); Larrea v. Bennett, 368
F.3d 179, 183 (2d Cir. 2004) (“To determine whether
reasonable counsel would have pred icted the
Antommarchi outcome and objected to the trial court’s
supplemental Allen charge, we must examine the extent
to which prior cases foreshadowed the Antommarchi
holding.”). In Haak, the Indiana Supreme Court did more
than foreshadow Fajardo; the court explicitly stated the
same rule that it later would apply in Fajardo. Although
Indiana appellate courts resisted that clear statement
until Fajardo was decided, see, e.g., Townsend v. Indiana,
753 N.E.2d 88 (Ind. App. Ct. 2001) (discounting Haak);
Davis v. State, 714 N.E.2d 717, 721 (Ind. Ct. App. 1999)
(same), the fact that an intermediate court likely
would have rejected the argument at the time of Shaw’s
appeal is no excuse not to make it, see Mayo, 13 F.3d at 533-
34 (“[A]ttorney’s omission of a meritorious claim cannot
be excused simply because an intermediate appellate
court would have rejected it.”); Orazio v. Dugger, 876 F.2d
1508, 1513-14 (11th Cir. 1989) (holding that appellate
counsel was obliged to raise a challenge that, although
likely to be rejected by the appellate court, ultimately
would have been successful in the state supreme court).
The state also stresses that Shaw cannot point to a
single published case before Fajardo in which an Indiana
appellate court invalidated any amended information
in reliance on the 1982 version of Section 35-34-1-5, sug-
gesting that Miller rightly would have viewed a chal-
lenge as a waste of time. But the state is looking at only
half the picture. As Shaw points out, it has not identified
No. 12-1628 19
(nor have we found) any published case in which a charge
had been elevated to murder from something lesser
after the statutory deadline passed (though such an
amendment would be permissible if new evidence were
to come to light, see Warner v. State, 773 N.E.2d 239, 243
(Ind. 2002)), and this dearth should have suggested to
Miller that the amendment in Shaw’s case was unusual
and distinguishable from those that had been upheld.
Moreover, Section 35-34-1-5 was not a dead letter. Some
trial courts did disallow untimely amendments, and
appellate courts thwarted prosecutorial attempts to get
around those rulings by dropping the original charges
and refiling more serious ones. See, e.g., Davenport v.
Indiana, 689 N.E.2d 1226, 1230 (Ind. 1997) (vacating con-
viction where the state had“received an adverse ruling
in the original trial court on its [untimely] motion to
amend the information . . .[and so] dismissed the case
and filed a second information” in another court);
Indiana v. Klein, 702 N.E.2d 771, 772, 776 (Ind. Ct. App.
1998) (affirming dismissal of charges that were filed
“solely to circumvent the court’s [previous] order
refusing [an] amendment” that was untimely).
The bottom line is that attorney Miller was faced
with two potential arguments, one undeniably frivolous
and the other solidly based on a state statute and rein-
forced by the Indiana Supreme Court’s pronouncement
in Haak. In the face of this choice, Miller opted for the
hopeless sufficiency challenge. The record reveals no
strategic reason for his choice of arguments, and in any
case “[n]o tactical reason . . . can be assigned for [his]
failure to raise the only substantial claim[] that” Shaw
20 No. 12-1628
had. See Fagan, 942 F.2d 1155 at 1157; cf. Smith v. Murray,
477 U.S. 527 (1986) (concluding that appellate counsel
who did not raise a claim that was questionable under
Virginia law but did raise 13 more-promising claims
was not deficient). Fairminded jurists who have the
proper standard in mind can conclude only that Miller’s
performance fell short of what Strickland v. Washington
and Smith v. Robbins require, and that the Indiana
appellate court’s conclusion to the contrary was an unrea-
sonable application of Supreme Court precedent.
B. Prejudice
On the question of prejudice, the Indiana appellate
court said simply that Shaw, because he was given
extra time to prepare for trial, was not prejudiced by the
court’s granting of the prosecution’s motion to amend.
But that takes too narrow a view of the matter. Strickland
requires us to ask whether there is “a reasonable prob-
ability that, but for [Miller’s] unprofessional errors,
the result of [Shaw’s direct appeal] would have been
different,” see 466 U.S. at 694. In assessing prejudice,
we must bear in mind once again that we are making
a comparative inquiry about counsel’s choices; we are
not resolving any issue of state law, and we are not
telling the Indiana judiciary how it should approach
this issue. Prejudice exists, however, if counsel bypassed
an nonfrivolous argument that, if successful, would
have resulted in the vacation of Shaw’s conviction (just
as the conviction in Fajardo later was). If one is entitled
to a dismissal, a continuance is no comfort. And when
No. 12-1628 21
evaluating prejudice, unlike when evaluating attorney
performance, hindsight is permissible. Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993); Hemstreet v. Greiner, 491
F.3d 84, 91 (2d Cir. 2007); Eddmonds v. Peters, 93 F.3d
1307, 1326 n.5 (7th Cir. 1996). This means that the
Indiana Supreme Court’s ultimate decision in Fajardo is
relevant to whether the argument Miller jettisoned
was both nonfrivolous and stronger than the sufficiency
argument he presented.
The state posits that the amendment to the informa-
tion in Shaw’s case may have been one of mere form. If
that were undisputably so, then the amendment theory
too would have been dead on arrival. But counsel had a
strong argument that this particular amendment was
substantive. After all, the amendment elevated a charge
from aggravated battery, I.C. § 35-42-2-1.5, to murder,
id. § 35-42-1-1—thereby increasing the possible sentence
more than threefold, see id. §§ 35-50-2-5 (aggravated
battery, a class B felony, is punishable by 6 to 20 years
in prison) and 35-50-2-3 (murder is punishable by 45 to
65 years). The state argues that in the final analysis
the state courts might have concluded otherwise,
quoting the Indiana Supreme Court’s comment that “[i]f
the defense under the original information would be
equally available after the amendment is made and the
accused’s evidence would be equally applicable to the
information in one form as in the other, the amendment is
one of form and not of substance. An amendment is of
substance only if it is essential to the making of a valid
charge of the crime.” Sharp v. State, 534 N.E.2d 708,
714 (Ind. 1989). But once again, Shaw’s theory does not
22 No. 12-1628
turn on the ultimate outcome in the state courts; it
depends only on the relative strength of this argu-
ment over the one counsel chose. The argument that the
amendment was substantive is not frivolous. The state
supreme court offered its statement in Sharp in the
context of an amendment that did not change the
identity of the offense charged; counsel thus could have
argued that Sharp does not apply to an amendment that
substitutes one offense for another. More importantly,
in rejecting Shaw’s postconviction petition, neither the
Indiana appellate court nor the trial court suggested
that the amendment was not substantive.
The state also touches on, but does not develop, another
argument that Shaw cannot show prejudice. This one is
based on the Indiana legislature’s decision in 2007 to
amend Section 35-34-1-5 in the wake of Fajardo. The
statute now treats amendments of substance the same
as amendments of form. The line of cases following
Lockhart v. Fretwell, 506 U.S. 364 (1993), and Nix v.
Whiteside, 475 U.S. 157 (1986), stand for the proposition
that Strickland prejudice cannot be established if counsel’s
deficiency was in not making a claim that, although
valid at the time of trial or appeal, has since been rejected.
The rationale is that defendants must not “receive a
windfall as a result of the application of an incorrect
legal principle or a defense strategy outside the law.”
Lafler v. Cooper, 132 S. Ct. 1376, 1386-87 (7th Cir. 2012).
But Fretwell and Nix do not foreclose a finding of preju-
dice in Shaw’s case. A legislative repeal of a statute
does not present the same situation as the one in which
No. 12-1628 23
a court mistakenly recognizes a right for some period
of time and then corrects itself (or is corrected by a re-
viewing court). The Fifth Circuit has explained the dis-
tinction: “[A] case that has been overruled is not authorita-
tive in all pending and subsequent litigation whereas
a duly-enacted statute conferring procedural or substan-
tive rights entitles its beneficiaries to those rights for
the period in which it is validly operating. Unlike
the benefit in Fretwell, a state statute is not an error,
misapprehension, or ‘right the law simply does not recog-
nize.’ ” Young v. Dretke, 356 F.3d 616, 627 (5th Cir. 2004)
(quoting Nix, 475 U.S. at 186). Shaw “seeks relief from
counsel’s failure to meet a valid legal standard,” see
Lafler, 132 S. Ct. at 1387, and the Indiana legislature’s
later decision to change that standard does not defeat
Shaw’s ineffectiveness claim. Fajardo itself offers some
insight into what the state supreme court would have
done in the period before the amendment. We do
note a division of authority in Indiana over whether the
legislature meant for the current, revised version of
Section 35-34-1-5 to apply retroactively. Compare Fields v.
Indiana, 888 N.E.2d 304, 309-10 (Ind. Ct. App. 2008) (hold-
ing that the former version of Section 35-34-1-5 and
Fajardo apply “on direct appeal [even] where the
offenses were committed prior to Fajardo”) with Hurst v.
Indiana, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008) (holding
that the statute enacted in reaction to Fajardo is retroac-
tive, “[t]hough the legislature did not expressly provide
for retroactive application of the amended statute”).
The resolution of that debate, however, is not pertinent
to our case. No matter what its outcome, fairminded
24 No. 12-1628
jurists must agree that Shaw has demonstrated
prejudice: he had a reasonable chance of success on
appeal but for Miller’s deficient performance. The state
also cites a case holding that Fajardo is not retroactive in
a collateral attack, Leatherwood v. Indiana, 880 N.E.2d
315, 320 (Ind. Ct. App. 2008), but that decision is
irrelevant because the relief to which Shaw is entitled is
a new direct appeal. Should Indiana choose to grant
this relief, instead of releasing Shaw outright, the
Indiana appellate courts will be free to consider all perti-
nent issues of state law at that time.
* * *
Because Miller’s performance was deficient and Shaw
suffered prejudice as a result, the decision of the district
court is V ACATED and the case is R EMANDED with in-
structions 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.
7-24-13