MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 11 2018, 8:41 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael K. Ausbrook Curtis T. Hill, Jr.
Bloomington, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Troy R. Shaw, October 11, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-1181
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1803-PC-17
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018 Page 1 of 9
[1] Troy R. Shaw appeals the post-conviction court’s dismissal of his petition. We
affirm.
Facts and Procedural History
[2] On June 9, 2000, Shaw was arrested and charged with aggravated battery as a
class B felony. Shaw v. State, 898 N.E.2d 465, 467 (Ind. Ct. App. 2008), trans.
denied. On December 12, 2001, the trial court granted the State’s motion to
amend the charging information to one count of murder and granted Shaw’s
motion for a continuance. Id. The jury found Shaw guilty of murder. Id. He
appealed the sufficiency of the evidence supporting his conviction, and this
Court affirmed. Shaw v. State, No. 02A03-0205-CR-132 (Ind. Ct. App. May 7,
2003).
[3] In April 2007, Shaw filed an amended petition for post-conviction relief alleging
ineffective assistance of trial and appellate counsel. Shaw, 898 N.E.2d at 467.
He argued he was denied effective assistance of appellate counsel when counsel
failed to argue that the trial court erred by allowing the State to amend the
charging information after the omnibus date. Id. at 468-469. On March 5, 2008
the post-conviction court denied the petition, and another panel of this Court
subsequently affirmed. Id. at 470.
[4] Shaw later sought habeas corpus relief, and the United States District Court for
the Southern District of Indiana denied his petition. Shaw v. Mize, No. 2:09-CV-
325-JMS-WGH (S.D. Ind. February 16, 2012). The United States Court of
Appeals for the Seventh Circuit vacated the judgment of the district court, held
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that the performance of Shaw’s appellate counsel was deficient because the
sufficiency argument that was raised was so weak that pursuing it was the
equivalent of filing no brief at all, that an argument about the validity of the
State’s effort to amend the indictment would have been materially stronger than
the sufficiency of the evidence argument that was raised, and that Shaw
suffered prejudice as a result. Shaw v. Wilson, 721 F.3d 908, 914-919 (7th Cir.
2013), reh’g denied, reh’g en banc denied, cert. denied, 134 S. Ct. 2818 (2014). The
Court remanded “with instructions to issue a writ of habeas corpus unless the
State of Indiana grants Shaw a new appeal within 120 days after issuance of the
mandate.” Id. at 919-920.
[5] On December 19, 2013, after the Seventh Circuit had denied the State’s
petitions for rehearing and rehearing en banc, the State filed under Shaw’s post-
conviction appeal cause number an emergency notice of pending proceedings
before the United States Supreme Court following federal habeas corpus
proceedings. Shaw v. State, 82 N.E.3d 886, 892 (Ind. Ct. App. 2017), reh’g
denied, trans. denied. In that notice, the State asked this Court to grant Shaw a
new direct appeal by January 3, 2014, which was 120 days from the date that
the Seventh Circuit had issued its appellate mandate. Id. The State also asked
that we hold the new appeal in abeyance so that it could pursue a writ of
certiorari from the United States Supreme Court. Id. On December 31, 2013,
we ordered the Clerk to open a direct appeal under a new appellate cause
number and to hold that appeal in abeyance pending further order. Id. On
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June 17, 2014, after the United States Supreme Court denied certiorari, the
State filed a notice of termination of proceedings. Id.
[6] In the new direct appeal, this Court addressed Shaw’s argument that the trial
court erred when it allowed the State to amend the charging information
seventeen months after the omnibus date. Id. at 894. We concluded that Shaw
had failed to demonstrate prejudice to his substantial rights resulting from the
untimeliness of the amendment and that the trial court did not err when it
allowed the State to amend the charging information. Id. at 897.
[7] On March 5, 2018, Shaw filed a petition for post-conviction relief alleging an
untimely amendment of the charging information and that his appellate
attorney failed to properly argue the issues. On March 9, 2018, the State filed a
Motion to Dismiss Successive Petition for Post-Conviction Relief. That same
day, the post-conviction court dismissed Shaw’s petition. Specifically, the
court’s order states:
The Court finds that the Petition for Post-Conviction Relief filed
on March 5, 2018, is a successive petition for post-conviction
relief, inasmuch as the Petitioner’s previous Petition for Post-
Conviction Relief was denied on March 5, 2008, and that the
Petition has not been authorized to be filed in this Court pursuant
to Rule 1, Section 12 of the Indiana Rules of Procedure for Post-
Conviction Remedies.
Appellant’s Appendix Volume 2 at 20.
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Discussion
[8] The issue is whether the post-conviction court erred in dismissing Shaw’s
petition. Shaw argues that “with respect to ‘the conviction’ or ‘the sentence’
within the meaning of Rule 1, § 1(a), a post-conviction petition collaterally
attacking the new conviction or new sentence is simply not even a second
petition, much less a successive one.” Appellant’s Brief at 36. He asserts that
“after obtaining post-conviction relief, state or federal, a person has been re-
convicted or re-sentenced, an entirely new conviction and/or sentence results.”
Id. He argues that if the Post-Conviction Rules do not provide the right to file a
petition, then the Due Process and Equal Protection Clauses of the United
States Constitution allow him to do so. Shaw also contends that, if he may not
file a fresh post-conviction petition as of right under Post-Conviction Rule 1, §
1, then he did not, in fact, have a “new direct appeal” of his conviction. Id. at
43.
[9] The State asserts that Shaw is raising the same claims challenging the same
judgment that were denied in his first petition for post-conviction relief and that
his conviction and sentence have never been vacated or reversed in federal or
state court. It argues that Shaw’s arguments that he is constitutionally entitled
to file another post-conviction petition without seeking authorization are
meritless. The State also contends that res judicata applies because the claims
Shaw raised in his successive petition have been adjudicated by this Court.
[10] “Post-Conviction Rule 1(12) provides that a second, or successive, petition for
post-conviction relief must first be authorized by” this Court or the Indiana
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Supreme Court “before it can be filed.”1 Lacey v. State, 829 N.E.2d 518, 519 n.2
(Ind. 2005).
[11] We find the Indiana Supreme Court’s order in Azania v. State, 738 N.E.2d 248
(Ind. 2000), to be instructive. In Azania, Zolo Agona Azania f/k/a Rufus
Averhart was convicted of murder and sentenced to death. 738 N.E.2d at 249.
That judgment was affirmed on direct appeal, Averhart v. State, 470 N.E.2d 666
(Ind. 1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2051 (1985), but the death
sentence was vacated in post-conviction proceedings in the Indiana Supreme
Court and a new penalty phase proceeding was ordered. Averhart v. State, 614
N.E.2d 924 (Ind. 1993), reh’g denied. Azania was again sentenced to death at
1
Specifically, Ind. Post-Conviction Rule 1(12) provides:
(a) A petitioner may request a second, or successive, Petition for Post-Conviction Relief by
completing a properly and legibly completed Successive Post-Conviction Relief Rule 1
Petition Form in substantial compliance with the form appended to this Rule. Both the
Successive Post-Conviction Relief Rule 1 Petition Form and the proposed successive
petition for post-conviction relief shall be sent to the Clerk of the Indiana Supreme Court,
Indiana Court of Appeals, and Tax Court.
(b) The court will authorize the filing of the petition if the petitioner establishes a
reasonable possibility that the petitioner is entitled to post-conviction relief. In making this
determination, the court may consider applicable law, the petition, and materials from the
petitioner’s prior appellate and post-conviction proceedings including the record, briefs and
court decisions, and any other material the court deems relevant.
(c) If the court authorizes the filing of the petition, it is to be (1) filed in the court where the
petitioner’s first post-conviction relief petition was adjudicated for consideration pursuant
to this rule by the same judge if that judge is available, and (2) referred to the State Public
Defender, who may represent the petitioner as provided in Section 9(a) of this Rule.
Authorization to file a successive petition is not a determination on the merits for any other
purpose and does not preclude summary disposition pursuant to Section (4)(g) of this Rule.
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this retrial and that new sentence was affirmed in the direct appeal from the
retrial. Azania v. State, 730 N.E.2d 646 (Ind. 2000), reh’g denied.
[12] By counsel, Azania filed a “Petition for Leave to File Petition for Successive
Post-Conviction Relief and Application for Stay of Execution Date,”
accompanied by the tender of a “Successive Petition for Post-Conviction
Relief,” alleging newly discovered evidence relevant to the guilt phase of his
murder trial. 738 N.E.2d at 249-250. The Indiana Supreme Court granted this
petition on October 12, 2000. Id. at 250.
[13] In addition, Azania tendered a “Notice of Filing Post-Conviction Petition in
Superior Court and Application for Stay of Execution Date, or in the
Alternative, Petition for Successive Post-conviction Relief and Application for
Stay of Execution Date” (“Notice of Filing”). Id. In response, the State filed
“State’s Response to Petition for Leave to File Successive Petition for Post-
Conviction Relief.” Id. Finally, Azania filed “Petitioner’s Reply to the State’s
Response to Petition for Post-Conviction Relief and for Leave to File
Successive Petition for Post-Conviction Relief.” Id. In an order addressing
these filings, the Indiana Supreme Court held:
This Court’s rules permit a person convicted of a crime in an
Indiana court to attack that conviction collaterally through a
post-conviction proceeding. Ind. Post-Conviction Rule 1. As
noted above, Azania has previously availed himself of that
procedure. The rules also authorize a procedure for seeking a
second or successive collateral review of a conviction and
sentence. P-C.R. 1 § 12. In the “Notice of Filing,” Azania
advises the Court that on September 14, 2000, a petition was filed
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in the trial court seeking post-conviction relief. The petition
alleges generally that the attorneys who represented him during
the retrial of the penalty phase proceedings and in the appeal
therefrom did not provide him with the effective assistance of
counsel to which he was entitled under the U.S. Constitution and
raises additional claims concerning the retrial. Inasmuch as this
petition sought successive post-conviction relief, it was
procedurally improper to file the petition without authorization
from this Court. P-C.R. 1 § 12. The Allen Superior Court is
therefore directed to dismiss the “Petition for Post-Conviction
Relief” that was filed on September 14, 2000.
Id.
[14] The Court stated: “Recognizing the procedural problem, Azania has asked in
the alternative that this Court nevertheless authorize the filing of the successive
petition seeking post-conviction relief from the judgment rendered at the retrial
of the penalty phase proceeding and affirmed on appeal.” Id. The Court then
found that the pleadings conclusively showed that Azania was entitled to no
relief on some of his claims but authorized him to present the issue of whether
an error in the Allen County jury selection system denied him his U.S.
Constitutional rights to a fair trial, due process, and equal protection of the
laws. Id. The Court ultimately ordered the trial court to dismiss the “Petition
for Post-Conviction Relief” that was filed on September 14, 2000, authorized
the filing of Azania’s successive petition for post-conviction relief only for the
purpose of presenting his claim regarding the Allen County jury selection
system, and ordered that the successive petition shall be consolidated with the
proceedings in Azania’s separate successive petition for post-conviction relief
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alleging newly discovered evidence relevant to the guilt phase of his murder
trial, which was authorized to be filed by the Court’s October 12, 2000 order.
Id. at 252.
[15] We note that Azania’s sentence was actually vacated in post-conviction
proceedings and that, after re-sentencing, the Indiana Supreme Court held that
it was procedurally improper for Azania to file a petition for post-conviction
relief without authorization. Thus, for purposes of arguing that a request for a
successive petition was not required, Azania presented a stronger case than
Shaw presents here because Shaw’s sentence was not vacated and he was
merely permitted to pursue a new direct appeal. In light of Azania and the
opportunity to request a successive petition for post-conviction relief under Ind.
Post-Conviction Rule 1(12), we cannot say that the dismissal violated Shaw’s
rights or that the post-conviction court erred in dismissing Shaw’s petition. See
also Post-Conviction Rule Appendix (Instructions to Form for Successive Post-
Conviction Relief Rule 1 Petitions state: “If you have previously filed a Petition
for Post-Conviction Relief directed to this conviction or these convictions and
the earlier petition was decided on the merits, you must fill out this form and
file it along with your Petition.”).
Conclusion
[16] For the foregoing reasons, we affirm the post-conviction court’s order.
[17] Affirmed.
Altice, J., and Tavitas, J., concur.
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