MEMORANDUM DECISION
Oct 08 2015, 9:58 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Khalid M. Jackson-Bey Gregory F. Zoeller
Indiana State Prison Attorney General of Indiana
Michigan City, Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Khalid M. Jackson-Bey, October 8, 2015
Appellant-Petitioner, Court of Appeals Case No.
45A03-1311-PC-506
v. Appeal from the Lake Superior
Court
State of Indiana, Trial Court Cause No.
45G04-1103-PC-1
Appellee-Respondent.
The Honorable Thomas P.
Stefaniak, Judge
The Honorable Natalie Bokota,
Magistrate
Pyle, Judge.
[1] Khalid M. Jackson-Bey (“Jackson-Bey”), pro se, appeals the denial of his
petition for post-conviction relief regarding his convictions for murder and
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robbery. In his petition, he claimed that he received ineffective assistance of
trial counsel because his attorney: (1) did not object during the State’s opening
statement; (2) waived opening statement; and (3) failed to interview or depose
the State’s witnesses. He also claimed that the State committed prosecutorial
misconduct by using perjured testimony to secure his conviction. Concluding
that Jackson-Bey’s trial counsel was not ineffective and that Jackson-Bey’s
claim of prosecutorial misconduct was not a cognizable issue for post-
conviction relief proceedings, we affirm the denial of his petition.
[2] We affirm.
Issue
Whether the post-conviction court erred in denying Jackson-
Bey’s petition for post-conviction relief.
Facts
[3] The underlying facts of Jackson-Bey’s crimes were set forth in the opinion from
his direct appeal as follows:
[4] On November 16, 2007, Anthony Rias, Jr., Jamal Hillsman,
Edgar Covington, Jermaine Hammonds, and Mrtyrone Metcalf
visited with Jackson-Bey and his brother, Haneef, at the Jackson-
Bey home. Rias asked the Jackson-Bey brothers and Metcalf if
the wanted to “do a lick” (in street terms, commit a robbery).
(Tr. 311)[.] The group of young men, excluding Haneef, left in
Hillsman’s blue Ford Explorer. Jackson-Bey was armed with a
small silver gun. They picked up Jamil Pirant, and Rias and
Jackson-Bey explained to him “about the lick.” (Tr. 314)[.]
Metcalf inquired whether Pirant had a pistol; at first Pirant
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jokingly replied that he had left it behind but then assured
Metcalf that he had the pistol.
The group proceeded to a White Castle, where Rias procured a
loaner vehicle (a white Ford Explorer) from one of his friends.
Rias, Metcalf, Pirant, and Jackson-Bey drove off in the white
Explorer, with Hillsman, Covington, and Hammonds following
in the blue Explorer. Rias, who had been driving the white
Explorer, stopped the vehicle in an alley. The three occupants of
his vehicle went to the apartment of Dominique Keesee. The
blue Explorer was parked nearby.
Keesee answered his door, and Jackson-Bey advised that he
wanted to buy marijuana. Keesee agreed to the sale and went to
get the marijuana; Metcalf and Pirant forced their way into the
apartment. Jackson-Bey followed. Outside, Covington heard
gunshots. Hammond exited the blue Explorer and began to run.
Rias drove up to Hillsman’s vehicle and directed him to follow so
that the white Explorer could be hidden. Once the white
Explorer was parked, Rias got into Hillsman’s blue Explorer and
they proceeded to the alley by Keesee’s apartment. Jackson-Bey,
Metcalf, and Pirant came running up to the vehicle with bags in
hand.
With Hillsman, Rias, Jackson-Bey, Metcalf, Pirant, and
Covington present, there was some discussion of the events that
had transpired. Rias asked Jackson-Bey “is it done” and
Jackson-Bey replied, “it is done.” (Tr. 536.) Jackson-Bey
indicated that Metcalf had shot Keesee in the chest and further
stated, “We come to kill him.” (Tr. 538.)
Dionne Austin found Keesee in his apartment, suffering from
gunshot wounds to the head and chest. He had been shot
approximately fifteen times[] from two .22 caliber weapons.
Medical assistance to Keesee proved futile and he died.
Meanwhile, Rias and Hillsman returned the white Explorer to its
owner and Covington, Jackson-Bey, Metcalf and Pirant went
back to the Jackson-Bey house. Haneef divided up the marijuana
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and some of the young men began to play a video game that had
been stolen from Keesee.
Several months later, Jackson-Bey’s attorney advised the Lake
County Sheriff’s Department that Jackson-Bey had information
about Keesee’s murder. Jackson-Bey gave a statement indicating
that Rias and Hillsman were the “shooters” that had killed
Keesee. (State’s Ex. 64a, pg. 3.) Subsequently, Jackson-Bey
gave a statement identifying Metcalf and Pirant as the shooters.
Ultimately, Jackson-Bey, Metcalf, and Rias were charged with
Keesee’s murder.
Jackson-Bey v. State, No. 45A03-0908-CR-365, slip op. at 1 (Ind. Ct. App. March
15, 2010). A jury found Jackson-Bey guilty of murder and robbery, and he was
sentenced to a total of sixty-five (65) years in prison. He appealed his
convictions, claiming that the trial court committed fundamental error in
instructing the jury, that insufficient evidence supported his conviction, and that
his sentence was inappropriate. We found no errors and affirmed his
conviction.
[5] On March 4, 2011, Jackson-Bey filed a pro se petition for post-conviction relief,
claiming that he received ineffective assistance of trial counsel and alleging
prosecutorial misconduct against the State. The post-conviction court began an
evidentiary hearing on December 19, 2012, and, after a continuance, concluded
the hearing on March 15, 2013. Jackson-Bey’s trial counsel, Noah Holcomb
(“Attorney Holcomb”), testified about representing him during his murder trial.
Specifically, he testified about not giving an opening statement and not
deposing the State’s witnesses.
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[6] As to waiving opening statement, Holcomb testified that, “from [his] standpoint
[and] his evaluation of the State’s evidence, [if] it’s going to be fairly strong
against my client, I will not give an opening statement.” (Tr. 37). In response
to a hypothetical posed by Jackson-Bey, Holcomb explained that if the State
mentioned certain evidence in opening statement and failed to introduce that
evidence, he would take advantage of it in closing arguments rather than
making an objection. As to depositions, Holcomb testified that the extent of
discovery provided by the State dictated the need for depositions. He also
stated that he cautions his clients on taking depositions of civilian witnesses
because of the State’s ability to use those depositions if the witness later
becomes unavailable to testify at trial.
[7] Finally, Jackson-Bey alleged that the State committed prosecutorial misconduct
by using perjured testimony. In an attempt to point out inconsistencies in a
witness’s testimony, Jackson-Bey attempted to support this allegation by
admitting portions of the transcript from his co-defendant’s trial, which took
place after his. The post-conviction court entered its findings of fact and
conclusions thereon denying Jackson-Bey’s petition for post-conviction relief.
He now appeals the denial of his petition.
Decision
[8] Jackson-Bey appeals the post-conviction court’s order denying post-conviction
relief on his claims of prosecutorial misconduct and ineffective assistance of
trial counsel.
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[9] We observe that post-conviction proceedings do not grant a
petitioner a “super-appeal” but are limited to those issues
available under the Indiana Post-Conviction Rules. Post-
conviction proceedings are civil in nature, and petitioners bear
the burden of proving their grounds for relief by a preponderance
of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
who appeals the denial of PCR faces a rigorous standard of
review, as the reviewing court may consider only the evidence
and the reasonable inferences supporting the judgment of the
post-conviction court. The appellate court must accept the post-
conviction court’s findings of fact and may reverse only if the
findings are clearly erroneous. If a PCR petitioner was denied
relief, he or she must show that the evidence as a whole leads
unerringly and unmistakably to an opposite conclusion than that
reached by the post-conviction court.
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations
omitted), trans. denied.
[10] At the outset, we note that while the post-conviction court addressed the merits
of Jackson-Bey’s claim of prosecutorial misconduct, that argument is not
appropriate for post-conviction relief proceedings. Post-conviction proceedings
do not provide a petitioner with an opportunity to present freestanding claims
that contend the original trial court committed error. Wrinkles v. State, 749
N.E.2d 1179, 1187 n. 3 (Ind. 2001). “In post-conviction proceedings,
complaints that something went awry at trial are generally cognizable only
when they show deprivation of the right to effective counsel or issues
demonstrably unavailable at the time of trial or direct appeal.” Sanders v. State,
765 N.E.2d 591, 592 (Ind. 2002).
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[11] The alleged perjured testimony took place during the trial of one of Jackson-
Bey’s co-defendants, which occurred after Jackson-Bey had been convicted and
before he filed his appellate brief. He makes no argument that this claim was
unavailable to him on direct appeal. Accordingly, Jackson-Bey’s prosecutorial
misconduct claim is a freestanding claim of error at trial that is not cognizable
during post-conviction proceedings. See, e.g., Myers v. State, 33 N.E.3d 1077,
1115-16 (Ind. Ct. App. 2015) (claim of prosecutorial misconduct failed where
raised for the first time in post-conviction proceedings instead of direct appeal),
trans. denied. Thus, we turn to Jackson-Bey’s claims of ineffective assistance of
trial counsel.
[12] A claim of ineffective assistance of trial counsel requires a showing that: (1)
counsel’s performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind .2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), reh’g
denied, cert. denied. “Failure to satisfy either of the two prongs will cause the
claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012)
(citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans. denied. Most
ineffective assistance of counsel claims can be resolved by a prejudice inquiry
alone. French, 778 N.E.2d at 824.
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[13] Jackson-Bey first claims that his trial counsel was ineffective because he did not
interview or take depositions of the State’s witnesses. Our supreme court has
clearly stated, “counsel’s failure to interview or depose State’s witnesses does
not, standing alone, show deficient performance.” Williams v. State, 724 N.E.2d
1070, 1076 (Ind. 2000). “The question is what additional information may
have been gained from further investigation and how the absence of that
information prejudiced his case.” Id.
[14] Here, Jackson-Bey makes general allegations of what Attorney Holcomb could
have done with depositions, but he points to no specific information that
depositions would have revealed. Without specific information, there is no way
to tell what information would have been discovered that would have affected
the result of his trial. Accordingly, he has shown no prejudice in Attorney
Holcomb’s decision not to depose witnesses. See, e.g., id.
[15] Jackson-Bey’s remaining claims of ineffective assistance of trial counsel revolve
around opening statements. He claims Attorney Holcomb was ineffective
because he did not object during the State’s opening statement and because he
did not give an opening statement on Jackson-Bey’s behalf.
[16] Before a defendant can show that his counsel’s failure to object constitutes
deficient performance, the defendant must be able to show that the objection
would have been sustained. Whitener v. State, 696 N.E.2d 40, 44 (Ind. 1998)
(citing Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997)). Jackson-Bey’s claim
here fails because he does not direct our attention to anything in the State’s
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opening statement that was objectionable. Again, Jackson-Bey makes general
claims about what happened but points to nothing specific in the record.
Specifically, he merely asserts that the State introduced unproven facts and
misled the jury during its opening statement. Despite the fact that everything is
unproven during an opening statement, we cannot assess his claim without a
specific reference to what might have been objectionable. As a result, we find
that Attorney Holcomb did not render ineffective assistance of counsel when he
failed to object.
[17] As to Jackson-Bey’s remaining complaint about opening statements, our
supreme court has spoken clearly and succinctly on the matter: “[t]he decision
not to make an opening statement is a matter of trial strategy and will not
support an ineffective assistance claim.” Douglas v. State, 663 N.E.2d 1153,
1155 (Ind. 1996).
[18] Finding that Jackson-Bey has not shown that the post-conviction court’s
decision was clearly erroneous, we affirm its order denying Jackson-Bey’s
petition for post-conviction relief.
[19] Affirmed.
Crone, J., and Brown, J., concur.
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