FILED
May 09 2012, 8:45 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
JOHN PINNOW ANN L. GOODWIN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ASHANTI CLEMONS, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1108-PC-737
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven J. Rubick, Judge
Cause No. 49G01-0509-PC-148898
May 9, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Ashanti Clemons appeals the post-conviction court’s denial of his amended
petition for post-conviction relief. Clemons raises two issues for our review:
1. Whether he received ineffective assistance of trial counsel.
2. Whether he received ineffective assistance of appellate counsel.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts underlying Clemons’ amended petition for post-conviction relief were
set out in his appeal from his conviction for voluntary manslaughter:
On August 30, 2005, Clemons, who lived with his mother, Letiate
Tate (“Tate”), argued with Prentice Webster (“Webster”) in the upstairs
hallway of Tate’s apartment building. Shortly thereafter, Webster died
from multiple gunshot wounds. Police searched the apartment complex for
witnesses and were told that Webster was heard saying to Clemons “get off
of me,” Tr. p. 93, and that someone had been entering and exiting Tate’s
apartment. A witness saw a man run into an apartment wearing a white t-
shirt and leave a few minutes later wearing a black shirt. Police knocked
on Tate’s door, and when she opened it, they observed bullets, a box full of
live ammunition rounds, and several live rounds scattered on Tate’s living
room floor, all of which were consistent in caliber, brand, and composition
to the fired casings. The police also observed a white t-shirt on Tate’s
living room couch. Tate informed the police where they could find
Clemons. When the police located Clemons, he was wearing a black shirt
and agreed to go to the police station for questioning.
Once there, the police conducted a videotaped interview of Clemons.
A police officer read aloud the advisement of each Miranda right to
Clemons and then handed him the Advice of Rights/Waiver of Rights form
(“the form”) for him to initial by each right if he understood it. Clemons
wrote his initials next to each right. The officer then read aloud to Clemons
the waiver of rights portion of the form and again handed him the form and
requested that he initial by each statement to indicate his understanding.
Clemons wrote his initials next to each statement and signed the waiver.
During this process, the officer explained certain words and concepts from
the form that he feared Clemons might not understand. For example, the
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officer explained the meaning of the word “coercion” and what it meant to
say that he would “make a statement.” Ex. p. 37-38. Clemons gave no
indication that he did not understand what these rights meant after they
were explained to him. During his interview with the officer, Clemons
made certain comments indicating to the officer that he understood and was
fully aware of his rights. For instance, Clemons stated, “You see what I’m
saying, I mean I, like you read, read my rights, you see what I’m saying, I
don’t have to, I’ve got the right, you see what I’m saying to stop talking at
any time or whatever.” Id. at 57. Clemons also admitted to carrying a gun
without a license and that he fired the gun.
The State charged Clemons with Count I, Voluntary Manslaughter
as a Class A felony,[] and Count II, Carrying A Handgun Without A
License as a Class A misdemeanor,[] which was later enhanced to a Class C
felony due to a previous conviction. On June 1, 2005, Clemons filed a
Motion To Suppress the videotaped statements, which was denied
following a hearing. At the conclusion of his trial, a jury found Clemons
guilty of carrying a handgun without a license but was hung as to the
voluntary manslaughter charge. Clemons pursued a direct appeal of his
handgun conviction. On appeal, Clemons argued that the trial court abused
its discretion when it admitted the videotape and transcript of statements he
gave to police, claiming that the police violated his Fifth Amendment right
to counsel when they failed to stop the interview after he requested counsel.
Concluding that Clemons’ procedural questions and comments about
attorneys did not constitute an unequivocal request for an attorney, a panel
of this Court held that the police did not violate his Fifth Amendment right
to counsel and that therefore the trial court did not abuse its discretion when
it admitted the evidence. See Clemons v. State, No. 49A02-0608-CR-722
(Ind. Ct. App. May 10, 2007), trans. denied [“Clemons I”].
During Clemons’ retrial on the voluntary manslaughter charge,
Clemons again objected to the admission of his videotaped statements on
the basis that he did not knowingly and voluntarily waive his right to
counsel. The trial court denied Clemons’ objection, stating that the totality
of the circumstances indicated that Clemons “freely and voluntarily waived
his rights and that he did have sufficient comprehension and understanding
to knowingly waive his rights.” Tr. p. 168. At the conclusion of his retrial,
the jury found Clemons guilty of voluntary manslaughter.
Clemons v. State, No. 49A02-0703-CR-319, at *1-*2 (Ind. Ct. App. Dec. 31, 2007)
(“Clemons II”). We affirmed Clemons’ voluntary manslaughter conviction, id. at *6, and
Clemons did not seek transfer.
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On July 15, 2008, Clemons filed a pro se petition for post-conviction relief. On
October 3, appointed counsel filed an amended petition for post-conviction relief. On
September 14 and November 16, 2010, the post-conviction court held a hearing on the
amended petition. And on July 20, 2011, the trial court denied post-conviction relief.
Clemons now appeals.
DISCUSSION AND DECISION
Standard of Review
In post-conviction appeals, our standard of review is well established:
[T]he petitioner bears the burden of establishing grounds for relief by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v.
State, 881 N.E.2d 639, 643 (Ind. 2008). When appealing the denial of post-
conviction relief, the petitioner stands in the position of one appealing from
a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will
not reverse the judgment unless the petitioner shows that the evidence as a
whole leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court. Id. at 643-44. Further, the post-
conviction court in this case made findings of fact and conclusions of law
in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a
post-conviction court’s findings and judgment only upon a showing of clear
error, which is that which leaves us with a definite and firm conviction that
a mistake has been made. Id. at 644. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of the witnesses.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We accept findings of
fact unless clearly erroneous, but we accord no deference to conclusions of
law. Id.
Taylor v. State, 929 N.E.2d 912, 917 (Ind. Ct. App. 2010), trans. denied.
Clemons’ request for post-conviction relief is premised on his contentions that he
was denied the effective assistance of trial and appellate counsel in violation of the Sixth
Amendment to the United States Constitution. A claim of ineffective assistance of
counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984).
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First, the defendant must show deficient performance: representation that fell below an
objective standard of reasonableness, committing errors so serious that the defendant did
not have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the
defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to
undermine confidence in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different. Id. at 694.
Issue One: Effective Assistance of Trial Counsel
Clemons first contends that he was denied the effective assistance of trial counsel,
Brian Lamar, because Lamar conceded that Clemons’ request for counsel during
interrogation was equivocal and because counsel did not obtain school records before the
first trial as proof of Clemons’ low intellect and inability to waive his Miranda rights.
We address each contention in turn.
We first consider Clemons’ claim regarding Lamar’s decision to concede at the
first trial’s suppression hearing that Clemons’ request for counsel during his post-arrest
interrogation was equivocal. During his post-arrest interrogation, Clemons stated:
[Detective]: You’re 27 years old. I want to express how much of a man
you were here to us today. How truthful and honest you were
here to us today, I want to be able to express that.
[Clemons]: Oh you’re going to be able to express it, only thing I, I just
want my momma sitting right here, you know what I’m
saying can I have somebody sitting here with me though?
[Detective]: I, I understand that . . .
[Clemons]: That, that’s all I’m asking, I mean I ain’t asking saying [sic] I
want, I want to talk to my lawyer. I ain’t said none of that.
[Detective]: I know.
[Clemons]: You see what I’m saying, I mean I, like you read, read my
rights, you see what I’m saying, I don’t have to, I’ve got the
right, you see what I’m saying to stop talking at any time or
whatever.
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[Detective]: Exactly.
[Clemons]: You see what I’m saying, ask for a lawyer or something like
that, you see what I’m saying. Hey look could I still have a
lawyer? Sit here and talk to me right now?
[Detective]: I’m sorry what?
[Clemons]: If, you know what I’m saying I don’t have a paid lawyer
could I still have a, you all said I could have a lawyer or
somebody come talk to me right now, sit here while I . . .
[Detective]: As I stated at any time you can have a lawyer present when
talking to us. Okay. Now . . .
[Clemons]: even when it’s paid or not?
[Detective]: A lawyer is not going to let you talk to us. But if you want
one, we’ll walk out of here right now and it’s all yours. You
know. If you do, but what you think you need to do [sic]. I
will not violate your civil rights. I’ve made a promise to your
mother and I’m going to stand up to the promise. I mean it
looks like this guy got shot through the leg and shot through
the arm and got hit in the neck.
[Clemons]: Let me see.
Clemons I Exhibits at 203, Clemons II Exhibits at 56-57. Again, Clemons argues that his
trial counsel’s performance was ineffective because Lamar conceded that Clemons’
request for counsel was equivocal during his post-arrest interview.
We initially consider the State’s brief argument that, under the law of the case
doctrine, we are bound by the prior determination that Clemons “did not [unequivocally]
invoke his right to counsel.” Appellee’s Brief at 14. The law of the case doctrine “is a
discretionary tool by which appellate courts decline to revisit legal issues already
determined on appeal in the same case and on substantially the same facts.” Godby v.
Whitehead, 837 N.E.2d 146, 152 (Ind. Ct. App. 2005) (citation omitted), trans. denied.
To invoke the law of the case doctrine, the matters decided in the prior appeal clearly
must appear to be the only possible construction of an opinion, and questions not
conclusively decided in the prior appeal do not become the law of the case. Id. (citation
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omitted). The doctrine is based upon the sound policy that once an issue is litigated and
decided, that should be the end of the matter. Id. (citation omitted).
Here, the State asserts only that Clemons “may not make a claim of prejudice that
contravenes” our prior determinations in the two direct appeals that Clemons’ request for
an attorney was equivocal. Appellee’s Brief at 14. The State is correct that we
determined in Clemons’ direct appeal from his handgun conviction that his request for
counsel was equivocal. See Clemons I, No. 49A02-0608-CR-722, slip op. at *2.
In his petition for post-conviction relief and here, Clemons argues that his trial
counsel was ineffective for conceding that his post-arrest request for an attorney was
equivocal. But a review of the transcript of Clemons’ post-arrest interview with the
detectives shows that Clemons did not clearly and unequivocally request the assistance of
counsel. We agree with this court’s conclusion in the direct appeal from the handgun
charge that
his statements indicate he understood he had signed the waiver of rights
form prior to speaking with the officers and he understood the police had to
stop questioning him if he requested counsel. His questions regarding
whether he could obtain counsel were procedural questions that were not an
unequivocal request for counsel.
Id. at *2. As such, Clemons cannot show that his trial counsel performed deficiently
when he correctly conceded this point.
Clemons next contends that his trial counsel was ineffective for failing to
introduce certain evidence at the first suppression hearing in order to show that Clemons’
waiver of Miranda rights was not knowing and voluntary. Specifically, trial counsel did
not offer into evidence at the first suppression hearing school records showing that
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Clemons has a low IQ. Clemons has not shown that he was prejudiced by trial counsel’s
failure to obtain and offer Clemons’ childhood school records.
At the post-conviction hearing, Lamar testified that he had attempted to obtain
Clemons’ school records before the first trial but was unsuccessful. In particular,
Clemons’ mother had claimed to have the records but was unable to find them. Lamar
then instructed one of his investigators to obtain the records from the school but was
finally able to get them shortly before the second trial when Clemons’ mother personally
delivered a consent form to the school. Lamar then offered the school records into
evidence at the voluntary manslaughter retrial. The records showed that Clemons, who
was twenty-seven years old at the time of his arrest, had an IQ of 74 when he was eleven
years old.
The evidence shows that Lamar took steps to obtain Clemons’ school records in
advance of the first trial and was unsuccessful through no fault of his own. Further, the
same trial judge presided over both trials, and even after the trial court reviewed such
records at the second trial’s suppression hearing, the court found that Clemons’ waiver of
his Fifth Amendment rights was knowing and voluntary. On these facts, Clemons has not
shown that Lamar’s performance was deficient.
Issue Two: Appellate Counsel
Clemons also contends that he was denied effective assistance of appellate
counsel, Julie Slaughter. Specifically, he asserts that Slaughter was ineffective because
she failed to petition for transfer from this court’s decision in Clemons II affirming his
voluntary manslaughter conviction and thereby procedurally defaulted him from seeking
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habeas corpus relief. He maintains that the post-conviction court erroneously relied on
Yerden v. State, 682 N.E.2d 1283 (Ind. 1997), in finding that Clemons had not shown
ineffective assistance of appellate counsel. We must agree.
In Yerden, a direct appeal, our supreme court considered a claim that interlocutory
appellate counsel was ineffective for having failed to make a particular argument, to
show how prejudice would result by newly passed rules of evidence, and to seek transfer
to the supreme court. Applying the Strickland test, the court noted that the defendant had
“literally provided no argument, much less any cogent argument, explaining how the
lawyer who took the interlocutory appeal performed below prevailing norms.” Id. at
1286. Only then did the court note in dictum that a “healthy majority of lawyers who
lose before the Indiana Court of Appeals, for example, elect not to seek transfer. On the
face of it, without any explanation, a lawyer who does not petition for transfer has simply
performed according to the statistical norm.” Id. As a result, Yerden’s claim of
ineffective assistance failed. Id.
The opinion in Yerden is distinguishable. There the defendant did not explain
how failing to petition for transfer constituted representation below an objective standard
of reasonableness. On that ground, our supreme court held that the defendant had failed
to show ineffective assistance of counsel. Id. Conversely, and as discussed in more
detail below, Clemons has shown that, under O’Sullivan v. Boerckel, 526 U.S. 838
(1999), the failure to seek review from the highest appellate court of the state may result
in procedural default of a federal habeas claim and, therefore, could constitute
performance below that standard. Thus, Yerden is inapposite, and we are left to
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determine whether Clemons has shown that his appellate counsel was ineffective in this
case.
Clemons correctly observes that a defendant must exhaust all state court remedies,
including a request for discretionary review by a state court of last resort, in order to
preserve his right to request federal habeas corpus relief. The Supreme Court has held
that,
[b]efore a federal court may grant habeas relief to a state prisoner, the
prisoner must exhaust his remedies in state court. In other words, the state
prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas petition. The
exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 29
L. Ed. 868, 6 S. Ct. 734 (1886), is now codified at 28 U.S.C. § 2254(b)(1)
1994 ed., Supp. III).
Boerckel, 526 U.S. at 842. The exhaustion doctrine, codified at 28 U.S.C. § 2254
provides in part that an
application for writ of habeas corpus on behalf of a person in custody
pursuant to a judgment of a State court shall not be granted unless it
appears that—
(A) the applicant has exhausted the remedies available in the court of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
28 U.S.C. § 2254(b)(1). A habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).
“The exhaustion requirement is satisfied if the federal issue has been properly presented
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to the highest state court, either by direct review of the conviction or in a post-conviction
attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Here, again, following the direct appeal of Clemons’ voluntary manslaughter
conviction, his appellate counsel did not petition for transfer. Clemons argues that, as a
result, he is prevented from exhausting his state remedies by having the supreme court
consider whether his Fifth Amendment right to counsel was violated during his post-
arrest interrogation. Clemons is incorrect.
A petitioner’s failure to exhaust his claims properly ripens into a procedural
default once state remedies are no longer available. Miller v. Danforth, 2012 U.S. Dist.
LEXIS 30017, at *16 n.6 (S.D. Ga. March 6, 2012) (citing McNair v. Campbell, 416 F.3d
1291, 1305 (11th Cir. 2005)). But state remedies are yet available to Clemons regarding
his Fifth Amendment claim. Specifically, if Clemons were to petition for transfer from
the present post-conviction decision, the alleged denial of his Fifth Amendment right to
counsel would be before the Indiana Supreme Court when it considers the issues
Clemons has raised in this appeal. Therefore, Clemons has not been denied the
opportunity to exhaust his state remedies regarding his alleged denial of the Fifth
Amendment right to counsel. As such, his right to seek habeas review has not been
procedurally defaulted, and, therefore, Clemons has not shown ineffective assistance by
his appellate counsel.
Conclusion
Clemons has not shown that his trial counsel was ineffective for conceding at his
first trial that his post-arrest request for counsel was equivocal. Nor has he shown
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ineffectiveness when his trial counsel, despite investigation, was unable to secure and
offer into evidence Clemons’ sixteen-year-old schools records as evidence of his low IQ
and, therefore, his purported inability to knowingly waive his right to counsel. Finally,
Clemons has not demonstrated that his appellate counsel was ineffective for failing to file
a petition to transfer from his voluntary manslaughter conviction. Because he may still
seek review by the Indiana Supreme Court by appealing the instant decision, Clemons
has not been procedurally defaulted. As such, he has not demonstrated that his appellate
counsel’s representation was deficient. We affirm the denial of Clemons’ amended
petition for post-conviction relief.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
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