IN THE INDIANA SUPREME COURT
WALLACE, Donald Ray, ) Supreme Court case no.
petitioner, ) 84S00-0412-SD-502
v. )
STATE OF INDIANA, ) Vigo Circuit Court case no.
respondent. ) C-CR-80-9
PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION
FOR POST-CONVICTION RELIEF IN CAPITAL CASE
Introduction
Donald Ray Wallace was convicted of four counts of murder and
sentenced to death on the unanimous recommendation of a jury. Since then,
he has had the convictions and sentence reviewed by a state trial court in
two post-conviction proceedings, by this Court three times on appeal, and
at all three levels of the federal judicial system. Wallace now requests
permission to seek further review in state court. He concedes that courts
have already considered and rejected the claims he presents. Because we
conclude that Wallace has not shown a reasonable possibility that he is
entitled to relief, we deny his request.
Procedural Background
A jury unanimously found Wallace guilty of four counts of felony
murder for killing Patrick and Teresa Gilligan and their two children, ages
four and five, during a 1980 burglary in the Gilligan home. Evidence at
trial showed Wallace had been seen in the neighborhood on the night of the
murders. Items belonging to the Gilligans were found in Wallace’s
possession after the murders. Blood on Wallace’s blue jeans matched blood
types of the victims but not Wallace’s. People who knew Wallace testified
he admitted killing the Gilligans.
The State sought the death penalty, alleging two aggravating
circumstances that would render Wallace eligible for a death sentence: the
murders committed during the burglary had been intentional and multiple
murders had been committed. See Indiana Code § 35-50-2-9(b)(1) & (8). The
jury unanimously recommended the death penalty. The Vigo Circuit Court
followed the jury’s recommendation and sentenced Wallace to death.
The convictions and sentence were affirmed on direct appeal in
Wallace v. State, 486 N.E.2d 445 (Ind. 1985), reh’g denied, cert. denied
478 U.S. 1010 (1986). The trial court’s judgment denying relief in
Wallace’s first state court post-conviction proceeding was affirmed on
appeal in Wallace v. State, 553 N.E.2d 456 (Ind. 1990), reh’g denied, cert.
denied, 500 U.S. 948 (1991). The trial court’s judgment denying relief in
a second state court post-conviction proceeding was affirmed on appeal in
Wallace v. State, 640 N.E.2d 374 (Ind. 1994), reh’g denied, cert. denied,
514 U.S. 1115 (1995). The federal courts denied Wallace’s petition for a
writ of habeas corpus in Wallace v. Davis, No. IP95-0215-C-B/S 2002, WL
31572002 (S.D. Ind. Nov. 14, 2002), aff’d, 362 F.3d 914 (7th Cir.), reh’g
and reh’g en banc denied, 373 F.2d 844, cert. denied, 543 U.S. ___, 125
S.Ct. 617 (2004).
Wallace has thus completed the review of the convictions and sentence
to which he is entitled as a matter of right.
By counsel, Wallace has now filed a “Tender of Successive Petition
for Post-Conviction Relief” and has submitted a proposed “Petition for Post-
Conviction Relief.” The State filed its “Verified Response in Opposition
to Tender of Successive Petition For Post-Conviction Relief,” and Wallace
was allowed to file “Petitioner’s Reply to State’s Verified Response in
Opposition to Tender of Successive Petition For Post-Conviction Relief.”
We have jurisdiction because Wallace has been sentenced to death.
See Ind. Appellate Rule 4(A)(1)(a).
Our Post-Conviction Rules
Wallace has already availed himself of our rule that permits a person
convicted of a crime in an Indiana state court one collateral review of the
conviction and sentence in a post-conviction proceeding. See Ind. Post-
Conviction Rule 1. Wallace has initiated two post-conviction proceedings.
Wallace now requests permission to litigate another or “successive” post-
conviction proceeding. We will authorize the proceeding to go forward “if
the petitioner establishes a reasonable possibility that the petitioner is
entitled to post-conviction relief.” P-C. R. 1 § 12 (b). In deciding
whether the petitioner has made the required showing, we consider the
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 we deem relevant. Id.
Wallace’s Claims
Claim No. 1. Wallace claims his death sentence is unconstitutional
because it is based on invalid aggravating circumstances. Specifically,
Wallace asserts the trial court should not have considered his criminal
history, which included two convictions that were vacated after Wallace had
been sentenced. He cites Johnson v. Mississippi, 486 U.S. 578, 584
(1988); Sochor v. Florida, 504 U.S. 527, 532 (1992); Clemons v.
Mississippi, 494 U.S. 738, 751-52 (1990); and Bivins v. State, 642 N.E.2d
928 (Ind. 1994).
As the State notes, and even Wallace admits, he raised this claim in
earlier appeals and lost. We previously concluded the trial court based
its sentencing decision on the aggravating circumstances—the factors that
made Wallace eligible for the death penalty—listed in Indiana’s death
penalty statute, see Wallace v. State, 486 N.E.2d at 463 (direct appeal),
and we concluded the trial court did not commit error by considering
Wallace’s criminal history, see Wallace v. State, 553 N.E.2d at 471 (post-
conviction appeal). Similarly, the federal courts previously concluded
Wallace was not entitled to relief on account of having had two convictions
vacated. See Wallace v. Davis, 2002 WL 31572002 at *25 (S.D. Ind. 2002)
aff’d, 362 F.3d at 917-18 (7th Cir. 2004).
The doctrine of res judicata prevents the repetitious litigation of
claims that, like Wallace’s, have already been decided. See, e.g., Daniels
v. State, 741 N.E.2d 1177, 1184 (Ind. 2001); Wrinkles v. State, 776 N.E.2d
905, 908 (Ind. 2002). Wallace correctly notes that the bar of res judicata
may sometimes not be enforced if the initial decision was "clearly
erroneous and would work manifest injustice." See, e.g., Arthur v. State,
663 N.E.2d 529, 531 (Ind. 1996) (internal quotation omitted). But Wallace
has not shown that the prior decisions were erroneous or unjust, much less
clearly or manifestly so.
Claim No. 2. Wallace contends the trial court did not fully consider
Wallace’s mental health status as a mitigating circumstance. We addressed
the issue of mitigating circumstances in the direct appeal and the first
post-conviction appeal. See Wallace v. State, 486 N.E.2d at 463 (“Although
the court did not list each possible mitigating factor and dispose of it,
he found that there were absolutely no mitigating factors to be weighed
against the aggravating ones. The trial court’s findings are amply
supported by the record.”); Wallace v. State, 553 N.E.2d at 470-71 (the
jury was accurately instructed with respect to mitigating circumstances and
the trial court made findings regarding the lack of any mitigating
circumstances and discussed all of these issues at length).
Wallace asks us to reconsider the matter in light of Texas v. Smith,
543 U.S. ___, 125 S.Ct. 400 (2004). Smith turned on an improper jury
instruction. In Wallace’s case, both the jury and the trial court were
properly informed about mitigating evidence. Wallace has not established a
reasonable possibility that he is entitled to relief on the basis of Smith.
Therefore, to the extent this claim is the same claim made and
rejected in prior proceedings, the claim is barred by the doctrine of res
judicata. See, e.g., Daniels, 741 N.E.2d at 1184; Wrinkles, 749 N.E.2d
1179, 1187 n. 3 (Ind. 2001). To the extent Wallace’s claim is raised for
the first time, as the State contends, the claim is procedurally defaulted
for not having been presented timely, and we decline to address it. See,
e.g., Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002); Wrinkles v. State,
749 N.E.2d at 1187 n.3. This was the District Court’s conclusion. See
Wallace v. Davis, 2002 WL 31572002 at *25 (S.D. Ind. 2002).
Conclusion
Wallace acknowledges he has previously litigated the claims he
presents and we see no principled reason to allow him to relitigate them.
Wallace has not met his burden of establishing a reasonable possibility
that he is entitled to post-conviction relief. Accordingly, we decline to
authorize the filing of a successive petition for post-conviction relief.
Because Wallace has already had extensive judicial review and there
is pending before us the State’s motion requesting that a date be set for
execution of the sentence, any request for rehearing must be prompt.
Rehearing should not be sought if Wallace simply intends to raise the same
arguments we have already addressed, but if he does petition for rehearing,
the petition must physically be filed with the Clerk no later than January
21, 2005. The State’s response must be physically filed with the Clerk no
later than January 28, 2005. To minimize any delay in the service and
receipt of papers, the attorneys are ordered to certify in papers presented
for filing that copies have been sent by fax to the Supreme Court
Administration office (fax number 317/232-8372), and by fax or electronic
mail to the other party’s attorney.
The Clerk is directed to send a copy of this order to the Public
Defender of Indiana; the Attorney General of Indiana; to the Public
Defender Council; to the Prosecuting Attorneys Council; to all counsel of
record; and to West Publishing for publication in the bound volumes of this
Court’s decisions.
DONE AT INDIANAPOLIS INDIANA, this 13th day of January , 2005.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson, Sullivan, Boehm and Rucker, JJ., concur.