Attorneys for Appellant
Susan K. Carpenter
Public Defender of Indiana
Joanna Green
Deputy Public Defender
Indianapolis, IN
Kathleen Cleary
Deputy Public Defender
Indianapolis, IN
Danielle Gregory
Deputy Public Defender
Indianapolis, IN
Attorneys for Appellee
Karen Freeman-Wilson
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
HOWARD ALLEN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S00-9804-PD-249
)
)
)
)
)
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Raymond D. Kickbush, Judge
Cause No. CR87-194C
ON DIRECT APPEAL FROM THE DENIAL OF POST-CONVICTION RELIEF
June 29, 2001
SULLIVAN, Justice.
Petitioner Howard Allen appeals the denial of post-conviction relief
from his conviction for murder and sentence of death. We affirm the denial
of post-conviction relief for the reasons set forth in this decision.
Background
Our earlier opinion in this matter describes in detail the crimes of
which Allen was convicted. See Allen v. State, 686 N.E.2d 760, 766 (Ind.
1997). In brief, Allen murdered 74-year-old Ernestine Griffin in her
Indianapolis home. Police determined that Griffin had been killed by a
combination of a knife wound to her chest and a blow to her head. On a
kitchen counter, police found a piece of paper with Allen’s name and phone
number on it. A neighbor of Griffin’s informed police that Allen had
inquired with Griffin about a car that the neighbor had for sale. Police
later discovered Griffin’s camera at the carwash where Allen worked. After
extensive questioning, Allen admitted to the police that he had struck
Griffin, but denied killing her.
Allen was charged with Murder,[1] Felony Murder,[2] and Robbery.[3]
A jury convicted Allen on all three charges and recommended a sentence of
death. The trial court sentenced Allen to death on August 30, 1988.
We upheld Allen’s conviction and death sentence on direct appeal.
Allen v. State, 686 N.E.2d 760 (Ind. 1997). We addressed numerous issues
in our opinion, including the validity of Allen’s waiver of his Miranda
rights, the admissibility of certain evidence, and the effectiveness of
trial counsel. He also challenged the delay of his appeal that resulted
from the trial court’s failure to appoint appellate counsel, the court
reporter’s failure to prepare a record, and the inadequate briefing of his
initial appellate counsel, who was subsequently replaced and disciplined.
Allen, 686 N.E.2d at 784. We rejected these claims and affirmed.
Allen subsequently sought to have his convictions and sentence set
aside by filing a petition for post-conviction relief as permitted by
Indiana Post-Conviction Rule 1. The post-conviction court conducted
extensive proceedings on his claims for relief but ultimately denied them.
Allen now appeals from this denial of post-conviction relief.
Discussion
For the most part, completion of Indiana’s direct appellate process
closes the door to a criminal defendant’s claims of error in conviction or
sentencing. However, our law allows defendants to raise a narrow set of
claims through a petition for post-conviction relief. See Ind. Post-
Conviction Rule 1(1). The scope of the relief provided for in these
procedures is limited to “issues that were not known at the time of the
original trial or that were not available on direct appeal.” Ben-Yisrayl v.
State, 738 N.E.2d 253, 258 (Ind. 2000). Issues available but not raised on
direct appeal are waived, while issues litigated adversely to the defendant
are res judicata. See Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000),
cert. denied, 121 S.Ct. 886 (2001).
A court that hears a post-conviction claim must make findings of fact
and conclusions of law on all issues presented in the petition. See Ind.
Post-Conviction Rule 1(6). The findings must be supported by facts and the
conclusions must be supported by the law. See Bivins v. State, 735 N.E.2d
1116, 1121 (Ind. 2000), reh’g denied. Our review on appeal is limited to
these findings and conclusions.
We apply a deferential standard of review when examining these
findings and conclusions. See Williams, 724 N.E.2d at 1076 (“Post-
conviction procedures do not afford the defendant with a ‘super-appeal.’”).
Because the petitioner bears the burden of proof in the post-conviction
court, see Ind. Post Conviction Rule 1(5), an unsuccessful petitioner
appeals from a negative judgment. A petitioner appealing from a negative
judgment must show that the evidence as a whole “leads unerringly and
unmistakably to a conclusion opposite to that reached by the trial court.”
Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), reh’g denied. This
means that “[we] will disturb a post-conviction court’s decision as being
contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion.” Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert.
denied, 528 U.S. 1083 (2000).
I
Allen first contends that his conviction and sentence must be vacated
because a juror failed to reveal her criminal record when asked to do so on
juror questionnaires. Specifically, a routine questionnaire asked
potential jurors if they had “ever been accused of a crime.” One woman,
who was eventually seated as a juror at Allen’s 1988 trial, responded to
this question with a simple “no.” On the day jury selection began, she
completed another questionnaire in which she certified that she had never
appeared in court. Despite these answers, the post-conviction record shows
that the juror had had several brushes with the law, including: (1) a May,
1982, arrest for operating a vehicle under the influence of alcohol; (2) a
September, 1976, arrest for public intoxication; and (3) a January, 1961,
arrest for operating a vehicle under the influence of alcohol, of which she
was found guilty.[4]
We have held that juror misconduct[5] will warrant a new trial only
when the misconduct is both “gross” and “harmed the defendant.” Lopez v.
State, 527 N.E.2d 1119, 1130 (Ind. 1988). See also Hoskins v. State, 737
N.E.2d 383, 385 (Ind. 2000) (“To warrant a new trial upon a claim of juror
misconduct, the defendant must show that the misconduct was gross and
probably harmed the defendant.”). The post-conviction court determined
that Allen was not harmed by the juror’s conduct.
First, the post-conviction court made findings of fact to the effect
that “[t]rial counsel … would not have necessar[il]y excluded [this juror]
had he know[n] about her convictions, but since the convictions were
related to alcohol use he would have asked additional voir dire questions
relating to her behavior. [Counsel] did not find the facts of the
convictions to be troubling.” Appellant’s Appendix at 18.
There is evidence in the post-conviction record to support the post-
conviction court’s findings of fact. Allen’s trial counsel testified at a
deposition that he would not have sought to exclude the juror solely on the
basis of the prior arrests even if she had disclosed them on the
questionnaires. However, trial counsel testified that had he known of the
prior offenses, he would have questioned the juror as to whether “it had
been something of a recent nature and also kind of look to see if there’s
more than one … or tried to figure out whether or not there was a pattern,
whether or not I was dealing with a drunk.” (R.P-C.R. at 2362,
Petitioner’s Exhibit 45 at 28-29.) He emphasized that “quite simply, if
she had been arrested in some proximity to this in this succession of one
or two or three or something of that nature … that would tell me … this
person’s got a problem and even getting arrested isn’t remedying it.” (Id.)
On redirect, counsel again testified that he “would have explored … [the
juror’s] pattern of conduct, [and] the proximity of time is obviously one
of th[ose] things.” (Id. at 113.)
From its findings, the post-conviction court concluded that Allen
suffered no harm because his trial counsel would not have moved to exclude
the juror even if he knew about the juror’s misstatements. Specifically,
the post-conviction court concluded that “Allen’s evidence falls short to
show that his trial counsel would have removed [the juror] from the jury
panel had he known of the convictions. Trial counsel wavered as to whether
that juror would have been excluded or not. Allen has not shown any
prejudice from the juror misconduct … .” Appellant’s Appendix at 18
(emphasis in original).
Having found evidence to support the post-conviction court’s findings
of fact, we will upset its conclusions of law only if “the evidence is
without conflict and leads to but one conclusion, and the post-conviction
court has reached the opposite conclusion.” Miller, 702 N.E.2d at 1058.
The post-conviction court’s conclusion that Allen suffered no harm is
supported by its findings. Allen’s trial counsel testified that the
juror’s previous arrests alone would not have led him to seek her dismissal
from the panel. He testified that he would have asked follow-up questions
in order to determine whether the juror had a problem with alcohol that
would prevent her from functioning as a juror. However, the post-
conviction court could conclude that even these follow-up questions would
not have led counsel to attempt to exclude the juror. The four offenses
were scattered over 27 years.[6] The post-conviction court could properly
conclude that these arrests were too infrequent to suggest the type of
“pattern” of alcohol-related misconduct that would have led trial counsel
to seek the juror’s exclusion. It is also plausible that the post-
conviction court inferred that because the juror herself had been a
defendant in a criminal proceeding, she might have had more empathy for
Allen than would a potential juror who had never been arrested or tried.
That is, the post-conviction court could infer from the record she was the
type of juror that the State – and not Allen – would strike from the jury
panel.[7]
II
Allen contends that he is entitled to a new trial or, alternatively, a
new sentencing hearing because he received ineffective assistance of
counsel at both the trial and the penalty phase. The post-conviction court
concluded that Allen could not raise any claims of ineffective of
assistance of trial counsel because he asserted such a claim on direct
appeal. Appellant’s Appendix at 17. It is well-established that if a
defendant claims on direct appeal that his trial counsel was ineffective,
he may not raise further issues of trial counsel error during post-
conviction review. See Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998),
cert. denied, 528 U.S. 861 (1999), Sawyer v. State, 679 N.E.2d 1328, 1329
(Ind. 1997), Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984). We conclude
that the post-conviction court was correct to conclude that Allen could not
raise these claims in his petition for post-conviction relief.
III
Allen contends that he should receive a new trial and sentencing
because he claims he received ineffective assistance of appellate counsel
in violation of the Sixth Amendment to the federal constitution. The
standard for gauging appellate counsel’s performance is the same as that
for trial counsel. See Trueblood v. State, 715 N.E.2d 1242, 1256 (Ind.
1999), cert. denied, 121 S. Ct. 143 (2000).[8] Therefore, “[t]o prevail on
an ineffective assistance of counsel claim, [the petitioner] must show both
deficient performance and resulting prejudice.” Williams v. State, 706
N.E.2d 149, 154 (Ind. 1999), cert. denied, 529 U.S. 1113 (2000). See
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). As for the first
prong – counsel’s performance – we presume that counsel provided adequate
representation. See Troutman v. State, 730 N.E.2d 149, 154 (Ind. 2000).
Accordingly, “[c]ounsel is afforded considerable discretion in choosing
strategy and tactics, and we will accord that decision deference.” Williams
v. State, 733 N.E.2d 919, 926 (Ind. 2000). The second prong – the
prejudicial effect of counsel’s conduct – requires a showing that “‘there
is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.’” Williams v. Taylor, 529 U.S. 362, 391 (2000) (quoting
Strickland, 466 U.S. at 694).
Allen’s specific claims of ineffective assistance of appellate counsel
are difficult to decipher, but appear to be twofold. First, he argues that
counsel was deficient for raising some claims of trial counsel error in
regards to mitigation evidence while not raising others. Appellant’s Br.
at 31-33. Second, he argues that counsel was ineffective for failing to
investigate and develop a complete record for the claims he did raise.[9]
These claims are similar to those raised in Ben-Yisrayl v. State, 738
N.E.2d 253, 260 (Ind. 2000). In that case, the petitioner attempted to
raise several claims of trial counsel ineffectiveness, but we rejected
those claims because he raised trial counsel’s performance as an issue on
direct appeal. Id. at 259 (citing Woods, 701 N.E.2d at 1220). However,
the petitioner also argued “that appellate counsel failed to raise properly
preserved meritorious issues and errors apparent in the record, failed to
take necessary steps to adequately present issues that were raised, and
pursued the issue of ineffective assistance of trial counsel without
completely investigating and raising all related issues.” Id. at 260. We
analyzed these claims under the following standard:
When the claim of ineffective assistance is directed at appellate
counsel for failing fully and properly to raise and support a claim of
ineffective assistance of trial counsel, a defendant faces a compound
burden on post-conviction. If the claim relates to issue selection,
defense counsel on post-conviction must demonstrate that appellate
counsel’s performance was deficient and that, but for the deficiency
of appellate counsel, trial counsel’s performance would have been
found deficient and prejudicial. Thus, the defendant’s burden before
the post-conviction court was to establish the two elements of
ineffective assistance of counsel separately as to both trial and
appellate counsel.
Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000) (emphasis added).
Applying this standard to Allen’s claims of ineffective assistance of
appellate counsel, we conclude that the post-conviction court could
determine that his appellate counsel were not deficient.
The post-conviction court concluded that
[Allen’s] appellate counsel at all stages was not ineffective in
representing Allen but rather exerted an unusually vigorous defense …
. Those claims and allegations that Allen says should have been
asserted by [appellate counsel] are not significant issues as compared
to those that were raised. Further, there is not a reasonable
probability that the outcome of the proceedings of the appeal would
have been different had [counsel] raised other issues.
Appellant’s Appendix at 9.
The post-conviction court made certain findings of fact from which it
concluded that counsel was not ineffective in this regard. The post-
conviction court found that Allen’s appellate counsel
thoroughly reviewed the record of proceedings, interviewed Allen, and
consulted other attorneys. After identifying issues he intended to
raise on direct appeal, he hired an investigator to provide factual
development and to develop litigation evidence. … From the time of his
appointment to the time he filed his opening brief, appellate counsel
had five months to become familiar with the record. Additionally,
[counsel] filed a 158 page brief raising 17 separate issues on direct
appeal.
Id. at 8.
The post-conviction court’s findings were supported by the evidence.
Appellate counsel testified at the post-conviction hearing that after he
was appointed to represent Allen, he came to the conclusion that he needed
to complete “factual investigation” into Allen’s background because he was
“concerned about [Allen’s] intellectual functioning.” Counsel hired an
investigator to look into this potential mitigation evidence. Counsel and
the investigator then attempted to retrieve records from numerous sources,
including Allen’s schools and the Department of Correction.[10] This
investigation produced affidavits describing Allen’s low I.Q. and poor
school record. See infra note 25. Counsel filed a belated motion to
correct errors in the hopes of developing a record as to these claims.
Allen, 686 N.E.2d at 788 n.8. This motion was denied. Id. However, we
subsequently remanded Allen’s case because the record lacked a written
sentencing order. Id. Our remand order offered appellate counsel the
opportunity to present his mitigation evidence to the trial court. Id. at
789. The trial court considered this evidence, and counsel raised the
trial court’s consideration of it as an issue on direct appeal. Id. at
790. Counsel testified that he believed that he needed to raise the issue
of counsel’s ineffectiveness as to this mitigation evidence because it was
raised in the belated motion to correct errors that he filed with this
court. He testified that he was concerned that a failure to do so would
result in waiver, especially since the order denying his belated motion to
correct errors made it clear that he could raise such issues in his brief.
He noted that he knew of cases holding that if a defendant’s appellate
counsel was different than trial counsel, the defendant was obligated to
raise a claim of ineffective assistance of counsel or the claim was waived.
Having found evidence to support the post-conviction’s findings of
fact, we will reverse its conclusions of law only if “the evidence is
without conflict and leads to but one conclusion, and the post-conviction
court has reached the opposite conclusion.” Miller v. State, 702 N.E.2d
1053, 1058 (Ind. 1998), cert. denied, 528 U.S. 1083 (2000). Allen’s
arguments as to appellate counsel’s ineffectiveness are that counsel should
not have raised issues regarding trial counsel’s mitigation case because he
would waive other mitigation issues, and, alternatively, that he should
have conducted a more thorough investigation of the issues that he did
raise. We hold that the post-conviction court could conclude that “there
is not a reasonable probability that the outcome of the proceeding of the
appeal would have been different had [counsel] raised other issues.”
Appellant’s Appendix at 9.[11]
We reach this conclusion because the post-conviction record does not
show that trial counsel was deficient in regards to the issues on which
Allen relies to support his claim of ineffective assistance of appellate
counsel. Under Ben-Yisrayl, a claim that appellate counsel was
ineffective “for failing fully and properly to raise and support a claim of
ineffective assistance of trial counsel” will be successful only when the
petitioner shows that both trial counsel and appellate counsel were
ineffective under the Strickland standard. 738 N.E.2d at 261-62 (emphasis
in original). Therefore, Allen’s appellate counsel could not be
ineffective for waiving some claims of trial counsel error while failing
fully to support others if Allen’s post-conviction claims of trial counsel
error did not in themselves warrant relief under Strickland.[12] We will
analyze his claims of trial counsel error in this light. Because, as the
post-conviction court concluded, Allen cannot show that trial counsel was
ineffective, his claims of ineffective assistance of appellate counsel must
fail under the Ben-Yisrayl standard.
A
Allen first contends that his trial counsel was deficient for failing
to challenge his confession on the grounds that it was obtained through
coercion in violation of the due process clause of the federal
constitution. Appellant’s Br. at 61 (citing Colorado v. Connelly, 479 U.S.
157, 167 (1986)). He argues that the circumstances of his confession
rendered it involuntary, and therefore his counsel was ineffective for
failing to object.
Allen raised several issues regarding the confession during his direct
appeal. See Allen, 686 N.E.2d at 769-774, 777-79. Our opinion rejected
Allen’s claims that counsel was ineffective for failing to move to suppress
the confession. Id. at 777-79. This holding was based on two grounds,
both of which preclude Allen’s claims in this case. First, we held that
Allen’s trial counsel made a reasonable strategic decision not to move to
suppress the confession, especially in light of counsel’s attempts to
persuade the jury to convict only on the lesser included offense of
voluntary manslaughter. Id. at 778 (“The strategic decision not to file a
motion to suppress Allen’s statements therefore did not deprive Allen of
fair adversarial testing of the evidence.”).[13] Whether a hypothetical
motion should have been made on Miranda grounds (as Allen argued on direct
appeal) or on due process grounds (as Allen argues here), our determination
that counsel made a strategic decision not to move to suppress the
confession for any reason binds Allen. Second, our opinion on direct
appeal also concluded that even had counsel performed deficiently in
regards to a motion to suppress, Allen was not prejudiced under the
Strickland standard. Id. at 778-79 (“Assuming for the sake of argument
that counsel’s failure to file a motion to suppress is performance so
deficient as to meet the first prong of Strickland, we do not see prejudice
sufficient to satisfy the second prong of that test. The case against
Allen was so strong there is not a reasonable probability that the verdict
might have been different but for counsel’s alleged ‘error.’”). Again,
this determination bars Allen’s claims despite the different theories under
which a motion to suppress could have been raised. [14]
B
Allen next contends that trial counsel was ineffective in regards to
an Indianapolis police officer’s testimony that Allen never asked why he
was being taken to the police station. Allen argues that the officer’s pre-
trial deposition as well as the post-conviction affidavit of another
officer show that Allen did ask officers why he was being taken to the
station for questioning. Appellant’s Br. at 66-67.[15] He contends that
counsel should have impeached the officer with his deposition testimony and
objected when the prosecutor referred to the officer’s testimony in closing
argument. Id.
The post-conviction court made no findings of fact in regards to
counsel’s performance on this issue. See Appellant’s Appendix at 10-11, 15-
17. However, “the failure to enter specific findings of fact and
conclusions of law is not reversible error.” Herman v. State, 526 N.E.2d
1183, 1184 (Ind. 1988). Instead, we review Allen’s claim de novo.
Our review of the record indicates that trial counsel could have made
a reasonable strategic decision not to attack the officer’s statement on
the grounds that Allen asserts here. Counsel had two valid reasons for not
impeaching the officer’s testimony in this manner: (1) the fact that in a
statement to police Allen said he overheard the details of the crime on the
police officers’ radios and (2) trial counsel’s concession of Allen’s
involvement in the crime in an attempt to obtain a lesser conviction.
First, in a statement to police, Allen said that he heard discussion of the
crime on the police radio and trial counsel decided to emphasize this
possibility. The officer whose testimony is in question testified that the
radios were in use when he took Allen to the police station and noted that
there might have been radio traffic concerning the crime. He also
testified that Allen could have heard the radios for at least a brief
period. Counsel revisited this issue during closing argument, reminding
the jury that in the statement Allen maintained that he learned of the
crime over the radio and noting that the police radio was “all the way on
for a couple of seconds.” (R. at 2726.) It was reasonable for trial
counsel to craft a strategy in regards to the officer’s testimony that was
consistent with Allen’s statements, which were heard by the jury. Second,
trial counsel’s performance in regards to the officer’s testimony is
consistent with counsel’s decision to concede Allen’s presence at Griffin’s
home – as well as other incriminating facts – in the hopes of obtaining a
voluntary manslaughter conviction instead of a murder conviction. See
Appellant’s Appendix at 16-17, Appellant’s Br. at 68-69.[16] The evidence
that Allen asserts here, which demonstrates that Allen might not have known
why he was taken to the police station, conflicts with this theory, and it
was reasonable for counsel not to attack the officer’s testimony.
C
Allen raises several other claims of guilt phase ineffective
assistance of counsel under the rubric of “[c]umulative effect of guilt
phase errors.” Appellant’s Br. at 67. Specifically, he argues that counsel
should have (1) presented evidence concerning why Allen had a certain
amount of money in his possession when he was arrested; (2) pointed out the
conflict in pre-trial accounts of where and how Griffin’s camera had been
found at the carwash where Allen worked; (3) selected a different tactic
when he opted to argue that while Allen did kill Griffin, his conduct was
voluntary manslaughter, not murder. Appellant’s Br. at 67-69. Allen did
not raise these issues in his initial petition for post-conviction relief
or in any of his three amended petitions.[17] These claims are unavailable
here. Issues not raised in the petition for post-conviction relief may not
be raised for the first time on post-conviction appeal. See Ind. Post-
Conviction Rule 1(8) (“All grounds for relief available to a petitioner
under this rule must be raised in his original petition.”); Howard v.
State, 467 N.E.2d 1, 2 (Ind. 1984) (“It is well settled that issues which
are not raised either at the trial level, on appeal, or in a post-
conviction petition are waived.”).
D
Allen contends that his counsel was ineffective during the penalty
phase of his trial. He contends that trial counsel should have presented
evidence concerning Allen’s family history, abuse during his incarceration
at the Indiana Boy’s School (“IBS”), and testimony from experts analyzing
this evidence. Appellant’s Br. at 73-78. During the post-conviction
hearing, Allen presented detailed testimony on each of these points.
First, he presented the post-conviction testimony of three of his sisters
as well as a close friend. These witnesses testified as to Allen’s
difficult upbringing, including the fact that his mother[18] raised her
eight children by herself with little money and that Allen served as a
protector for the children, sometimes stealing so that the family would
have food. Second, Allen presented testimony concerning corporal
punishment inflicted on him at IBS[19] before such practices were
prohibited. He presented the testimony of two IBS employees and three men
who were detained at IBS at the same time as Allen, all of whom testified
that strappings, paddlings,[20] and slappings were part of life at IBS,[21]
as was overcrowding. Third, Allen presented testimony from mental health
professionals, including a social worker, a neuropsychologist, and a
forensic psychologist. These witnesses detailed the difficulty of Allen’s
childhood and how that might have affected his behavior later in life,
diagnosed him as having mental disorders, described Allen as possessing low
intelligence, and postulated that Allen would pose little risk of violence
in prison.
In regards to this mitigation evidence, the post-conviction court
concluded that
Trial counsel … purposely refrained from presenting certain mitigating
evidence during the penalty phase before the jury so that the State
would not be able to present evidence of Allen’s [previous]
convictions … . These decisions by counsel were strategic decisions
and not subject to any characterization of ineffectiveness of counsel.
Appellant’s Appendix at 17 (emphasis omitted). It also concluded that “the
information that Allen claims was not presented at his trial was available
to [the trial court] through [the] pre-sentence investigation report.” Id.
at n.22.
The post-conviction court made certain findings of fact from which it
reached this conclusion. The post-conviction court found that
Allen’s prior criminal history included a conviction for the voluntary
manslaughter of another elderly woman, Olga Cooper, during a burglary
as well as a pending charge against Allen at the time of his trial of
another murder of an elderly woman, Mrs. Hale, during the course of a
burglary. Throughout all phases of Allen’s trial, trial counsel … was
concerned that the evidence of petitioner’s criminal history including
several other felony convictions and juvenile record would reach the
jury.
Appellant’s Appendix at 16 (emphasis in original).
There was evidence to support the post-conviction court’s findings of
fact. The record reflects that Allen was convicted of eight felonies, most
of them burglaries or robberies. All of the victims were middle-aged or
elderly women and Allen was convicted of voluntary manslaughter in the
death of an 85-year-old woman. Allen’s lead trial counsel testified at a
deposition that his main goal during the penalty phase was to keep the jury
from learning about these crimes. He testified that he was especially
worried about the voluntary manslaughter conviction, as the facts of that
case resembled the murder of Griffin.[22] Counsel therefore chose to avoid
a detailed mitigation case and communicated this strategy to Allen, as is
reflected by Allen’s statements at sentencing. Moreover, when asked about
Allen’s previous voluntary manslaughter conviction, Allen’s expert on death
penalty litigation testified that “the thing to do would be to stay away
from it” and not open the door to such evidence.
Having found evidence to support the post-conviction findings of fact,
we next determine whether the post-conviction court could properly reach
the conclusions it reached based on these findings. In making this
determination, we will upset the conclusions of the post-conviction court
only if the evidence as a whole “leads unerringly and unmistakably to a
conclusion opposite to that reached by the trial court.” Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993), reh’g denied. Because Allen
asserts that trial counsel should have offered three distinct types of
evidence in mitigation, we analyze the post-conviction court’s conclusion
in light of each form of evidence.
First, Allen contends that trial counsel was deficient for failing to
present mitigation evidence in the form of testimony from family and
friends concerning the conditions in which Allen grew up. The post-
conviction court concluded that such evidence would open the door to
Allen’s criminal record and counsel did not pursue this evidence on that
ground. Appellant’s Appendix at 17. At the time of Allen’s trial, a
defendant’s criminal history was generally inadmissible as character
evidence. However, “[w]hen the accused offer[ed] evidence of her own
character, she open[ed] the door to the subject of her character for the
trait placed in issue.” Berkley v. State, 501 N.E.2d 399, 400 (Ind. 1986).
See also Bond v. State, 273 Ind. 233, 403 N.E.2d 812 (1980). Therefore,
evidence of prior crimes became admissible when they were relevant to rebut
a trait of good character that the defendant placed into evidence. See
Hauger v. State, 273 Ind. 481, 483, 405 N.E.2d 526, 527 (1980). Cf. Ashton
v. Anderson, 258 Ind. 51, 279 N.E.2d 210, 212 (1972) (“It is well
recognized that a witness may be required on cross examination to answer as
to prior convictions for the purpose of impeaching his credibility.”).
While the evidence of Allen’s family history describes the difficult
conditions of his childhood, it also contains numerous positive references
to Allen’s role as a protector of the younger children in his neighborhood
and family, his role as “man of the house,” his tendency to take blame for
others, and his practice of stealing to feed his family. This testimony –
which was intertwined with the negative aspects of Allen’s youth – is a
form of character evidence that could open the door to Allen’s criminal
history. Trial counsel’s performance was not deficient for not presenting
this evidence.[23] See Canaan v. State, 683 N.E.2d 227, 234 (Ind. 1997)
(“Counsel is permitted to make strategic judgments not to present certain
types of mitigating evidence, including evidence of defendant’s
background.”), cert. denied, 524 U.S. 906 (1998).[24]
Second, we address whether the post-conviction court could conclude
from its findings that counsel made a reasonable strategic decision not to
introduce evidence of abuse that Allen suffered at IBS. The post-
conviction court concluded that trial counsel made a strategic decision not
to introduce this evidence because counsel believed it might open the door
for the State to introduce evidence of his previous convictions. As we
have previously discussed, it was well-settled at the time of Allen’s trial
that evidence of previous convictions was inadmissible before the jury
unless Allen opened the door to them. See Hauger, 273 Ind. at 483, 405
N.E.2d at 527. Had Allen placed his experiences at IBS into evidence, he
could have placed his entire criminal history at issue. The IBS was a
juvenile correctional facility. Faced with a record that showed that Allen
had been incarcerated as a juvenile but that said nothing about
incarceration as an adult, the jury could infer that Allen did not have an
adult criminal history. The State might well seek to rebut any inference
that Allen’s criminal conduct ended with the acts that led him to IBS.
Because this evidence presented a risk that evidence of prior convictions
would be introduced, it was reasonable for counsel to avoid evidence
concerning abuse at IBS.
Finally, Allen presented post-conviction testimony from three mental
health professionals – a social worker, a neuropsychologist, and a forensic
psychologist. Because of their different professional qualifications,
these experts presented three distinct perspectives on Allen’s mental
condition. Therefore, we review the testimony of each expert individually
in light of the post-conviction court’s conclusion that counsel made a
reasonable decision to avoid such testimony.
First, social worker Marjorie Hammock presented a detailed social
history of Allen. Prior to testifying, Hammock interviewed Allen’s friends
and family to get a complete picture of his developmental history. After
discussing Allen with numerous people, she concluded that “his environment
compromised his ability to develop appropriately.” (R.P-C.R. at 2257.)
While this conclusion might have been helpful to Allen, Hammock only
reached this point in her testimony after sifting through much of the same
family history evidence that was discussed supra. As we have already
noted, counsel acted reasonably in withholding such details of Allen’s
family history for fear that the jury would learn about Allen’s criminal
history.
Second, Allen presented the testimony of Dr. Robert Heilbronner, a
neuropsychologist. After performing a number of tests, Dr. Heilbronner
concluded that Allen had certain mental conditions that affected his
actions. First, he testified that Allen possessed several brain
dysfunctions that could limit his ability to control his behavior. These
dysfunctions impaired Allen’s “capacity to organize [his] behavior, to plan
ahead, to think abstractly, to anticipate the consequences of [his]
actions.” (R.P-C.R. at 2325.) Second, he testified that Allen had a severe
learning disability. He then specifically compared this diagnosis to
mental retardation.
The post-conviction court was incorrect when it concluded that this
evidence could have opened the door to Allen’s criminal history. There is
no nexus between Allen’s mental health status and his criminal history. To
say that this evidence would open the door to evidence of prior convictions
would improperly allow a jury to learn the details of a defendant’s
criminal history every time a defendant introduced a mental health
diagnosis as mitigation evidence. Cf. Roth v. State, 550 N.E.2d 104, 106
(Ind. Ct. App. 1990) (holding that defendant’s testimony that he was not “a
crazy person” and that he had never been treated for a mental illness did
not open the door to his criminal history), transfer denied.
Despite the post-conviction court’s erroneous conclusion, Allen is not
entitled to relief because he has not demonstrated that counsel’s failure
to present evidence of these mental conditions was constitutional error.
First, Allen’s briefs make only a passing reference to his brain
dysfunctions, Appellant’s Br. at 78-79, and he does not present a cogent
claim that counsel was ineffective for failing to present this evidence.
See Ind. Appellate Rule 8.3(A)(7). Second, Dr. Heilbronner testified that
Allen suffered from a severe learning disability that was similar to mental
retardation. See generally Appellant’s Br. at 79 (“The symptomatology of
Allen’s disorders mimics in some respects mental retardation.”). However,
we held on direct appeal that the trial judge considered to our
satisfaction any evidence of mental retardation and this determination acts
as res judicata to Allen’s post-conviction re-characterization of this
claim as a learning disability. See Allen, 686 N.E.2d at 788-90.[25]
Finally, Dr. Mark Cunningham, a forensic psychologist, testified that
Allen is a low risk for committing a violent act so long as he is
incarcerated.[26] Dr. Cunningham analyzed a variety factors to determine
the statistical risk that Allen would commit a violent act if incarcerated.
He testified that if he had been called at Allen’ s trial, he would have
relied in part on Allen’s previous behavior while incarcerated. Therefore,
any testimony regarding Allen’s dangerousness in prison would have exposed
his convictions to the jury and the post-conviction court was correct to
conclude that counsel made a reasonable strategic decision in regards to
this testimony.
As a final matter, Allen argues that even if trial counsel made
strategic choices not to present this evidence, counsel did not make
sufficient investigation to support these strategic choices. Appellant’s
Br. at 80. In so arguing, Allen relies on Williams v. Taylor, a case in
which the United States Supreme Court overturned a death sentence in part
because of counsel’s failure to investigate potential mitigation evidence.
529 U.S. 362, 395 (2000). The Williams Court found counsel ineffective
because “[t]hey failed to conduct an investigation that would have
uncovered extensive records graphically describing Williams’ nightmarish
childhood, not because of any strategic calculation but because they
incorrectly thought that state law barred access to such records.” Id.
The present case is distinguishable, however, in that the record shows that
counsel had a working knowledge of some of the mitigation evidence that
Allen asserts on post-conviction review but made a strategic decision not
to present it. Allen’s counsel called several witnesses at the sentencing
hearing, and this testimony demonstrates that counsel had researched
Allen’s background and childhood. Moreover, counsel knew that Allen was
incarcerated at IBS because it was reflected on a pre-sentence report.[27]
It was counsel’s role to balance the value of this evidence with the damage
that the prior convictions would inflict. In light of the adverse effect
that evidence of similar crimes against similar victims could have on a
jury, counsel acted reasonably in striking a cautious balance towards
Allen’s criminal history.[28]
Having concluded that Allen could not prevail on his claims of
ineffective assistance of trial counsel, we conclude that the post-
conviction court could reject Allen’s claim of ineffective assistance of
appellate counsel.
IV
Allen contends that he was denied a panoply of procedural rights when
we remanded his direct appeal to the trial court for a written sentencing
order complying with the death penalty statute. Appellant’s Br. at 19.[29]
The remand order instructed the court to take three actions: (1) enter a
written sentencing order; (2) follow the procedures enunciated in Roark v.
State, 644 N.E.2d 565, 570 (Ind. 1994), reh’g denied, Bellmore v. State,
602 N.E.2d 111, 128 n.6 (Ind. 1992), reh’g denied, and Bivins v. State, 642
N.E.2d 928 (Ind. 1994), cert. denied, 516 U.S. 1077 (1996); and (3)
consider two affidavits that – according to appellate counsel – supported
Allen’s argument that he was mentally retarded and that this fact should
have been considered in mitigation. The trial court entered a detailed
sentencing order that complied with the mandate of our remand. See Allen,
686 N.E.2d at 787-90.
Allen claims that this procedure: (1) violated Clemons v. Mississippi,
494 U.S. 738 (1990), which governs how appellate courts may treat a death
sentence after determining that the sentencing court relied on an
impermissible aggravating circumstance; (2) shifted the burden of proof at
sentencing from the State to Allen; (3) deprived him of the right to be
present during sentencing; (4) denied him his statutory right to
allocution; (5) denied him the opportunity to present evidence at an
adversarial hearing on sentencing; (6) violated his right to notice of
sentencing; and (7) deprived him of due process of law under the federal
constitution. Appellant’s Br. at 19-29.
Issues available on direct appeal may not be raised during post-
conviction review. See Ben-Yisrayl v. State, 729 N.E.2d 102, 108 n.1 (Ind.
2000) (citing Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999), reh’g
denied), reh’g denied. Allen has waived these freestanding claims of error
in regards to the remand order for failing to raise them on direct
appeal.[30]
However, Allen also argues that his direct appeal counsel was
ineffective or abandoned him in regards to the remand proceeding.
Appellant’s Br. at 29. The post-conviction court concluded Allen was not
prejudiced by counsel’s efforts during the remand. Appellant’s Appendix at
15.
Allen does not claim that he suffered any prejudice during the remand
that is independent of his general claims of ineffective assistance of
counsel in regards to sentencing. See Part III-D supra. That is, Allen
does not cite any evidence that his counsel should have attempted to
introduce during the remand that he does not also argue should have been
introduced during the penalty phase.[31] Because we held that Allen
suffered no prejudice from his counsel’s efforts at the penalty phase,[32]
we similarly hold that he suffered no prejudice in the context of the
remand.[33]
V
Allen raises several claims that are either waived because they are
freestanding claims of trial court error or are barred by res judicata. “If
an issue was known and available but not raised on appeal, it is waived.
If it was raised on appeal but decided adversely, it is res judicata.”
Rouster, 705 N.E.2d at 1003.
First, Allen argues that the trial court deprived him of his right to
counsel by not appointing his chosen counsel as the public defender in the
case.[34] Appellant’s Br. at 52. As we previously stated, such
freestanding claims of trial court error are unavailable on post-conviction
review. See Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999), cert.
denied, 121 S. Ct. 83 (2000), Lowery v. State, 640 N.E.2d 1031, 1037 (Ind.
1994), cert. denied, 516 U.S. 992 (1995). He also contends that the
prosecutor put on perjured testimony and relied on it during closing
argument. Appellant’s Br. at 49. Specifically, an officer testified at
trial that Allen never asked why he was being questioned. However, the
officer stated in a pre-trial deposition that Allen did in fact ask why he
was being questioned. This freestanding claim of error may not be raised
on post-conviction review.[35]
Second, issues decided on direct appeal may not be collaterally
attacked on post-conviction review. See Ben-Yisrayl v. State, 738 N.E.2d
253, 258 (Ind. 2000), State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000),
cert. denied, 121 S.Ct. 2220 (2001). Two issues Allen raises are barred by
res judicata. First, he argues that his “constitutional rights were
violated by the length of time it took to resolve his direct appeal
issues.” Appellant’s Br. at 43. However, our opinion on direct appeal
concluded that “Allen has not been denied due process by the length of time
his appeal has taken.” Allen, 686 N.E.2d at 785. While the time lag
between the trial court’s sentencing and the conclusion of Allen’s direct
appeal was unfortunate and largely not Allen’s fault, we have already
determined that the delay did not warrant a new trial or a reduced
sentence. Id.[36] Second, he contends that the prosecutor committed
misconduct by putting on purportedly false testimony and relying on it in
closing argument. Specifically, he argues that two officers lied on the
stand when they said that they had not provided details of the murder
before Allen began to discuss it. Appellant’s Br. at 50. However, we
decided this precise issue adversely to Allen on direct appeal. Allen, 686
N.E.2d at 775.
Conclusion
We affirm the post-conviction court’s denial of Allen’s petition for
post-conviction relief.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1(1).
[2] Id. § 35-42-1-1.
[3] Id. § 35-42-5-1.
[4] The same juror was also arrested for public intoxication in June,
1988, after the jury had convicted Allen and recommended death. She later
pled guilty to this crime.
[5] Although the State argues that the juror might have misunderstood
the questionnaire and therefore the misstatements were not misconduct, we
assume for the sake of argument that the juror did in fact commit
misconduct.
[6] Allen cites no other evidence concerning the juror and alcohol.
See Br. of Appellant at 15. Moreover, counsel had the opportunity to
question the juror during voir dire. She responded to questions about
whether she could analyze the facts and the law and reach a fair
recommendation as to the death penalty. She also answered a series of
questions concerning the reasonable doubt standard. There is no
suggestion in the record that she did not understand these questions or
gave incoherent answers to them.
[7] Allen also casts this argument in terms of ineffective assistance
of counsel, contending that trial counsel’s failure to ask follow-up
questions in regards to the juror’s criminal record and abuse of alcohol
rendered counsel ineffective in violation of the Sixth Amendment to the
federal constitution. Having already determined that the post-conviction
court could conclude from the evidence that trial counsel would not have
moved to exclude the juror even had he known of these offenses, we hold
that counsel’s lack of knowledge in this regard did not render him
ineffective.
[8] Despite these overlapping standards, we have noted some unique
characteristics in our analysis of claims of ineffective assistance of
appellate counsel:
Appellate counsel’s performance, as to the selection and
presentation of issues, will … be presumed adequate unless found
unquestionably unreasonable considering the information available in
the trial record or otherwise known to appellate counsel. To prevail
on a claim of ineffective assistance of appellate counsel, a defendant
must therefore show from the information available in the trial record
or otherwise known to appellate counsel that appellate counsel failed
to present a significant and obvious issue and that this failure
cannot be explained by any reasonable strategy.
Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000)
[9] We have noted that “appellate ineffective assistance of counsel
claims generally fall into three basic categories: (1) denying access to
appeal; (2) waiver of issues; (3) failure to present issues well.”
Harrison v. State, 707 N.E.2d 767, 786 (Ind. 1999), cert. denied, 529 U.S.
1088 (2000). Allen’s claims fall under the second and third of these
categories.
[10] Counsel was able to complete his investigation and file a lengthy
brief in little under five months. See Allen, 686 N.E.2d at 769.
[11] Allen also recasts this argument by contending that appellate
counsel was deficient for failing to “argue as error the trial court’s
failure to consider relevant mitigation information.” Appellant’s Br. at
34. However, because we determine infra that trial counsel was not
deficient for failing to present this evidence, Allen’s claims of appellate
counsel ineffectiveness in this regard are unpersuasive.
[12] Put in its simplest terms, Ben-Yisrayl stands for the proposition
that direct appeal counsel are not ineffective in their handling of issues
of trial counsel’s performance if there was no issue to raise in the first
place.
[13] The evidence most probative to counsel’s trial strategy was
contained in Allen’s statements to the police. We noted on direct appeal
that “Allen’s statements were the source of counsel’s argument imploring
the jury to consider convicting him on just the lesser included charge of
voluntary manslaughter. If this strategy had succeeded, it would have
spared Allen the death sentence.” Allen, 686 N.E.2d at 778.
[14] Cf. People v. Mitchell, 727 N.E.2d 254, 344-45 (Ill.)
(“Defendant tries to revive the Miranda argument by relying on post-
conviction affidavits that he believes help to establish that he would have
been unable to make a knowing, voluntary, and intelligent waiver of his
Miranda rights. Just as we held on direct appeal, however, the Miranda
issue is irrelevant given our determination that any error in the admission
of defendant’s confession was harmless.”), cert. denied, 121 S. Ct. 388
(2000).
[15] We dealt with a slightly different claim of perjured testimony on
direct appeal. See Allen, 686 N.E.2d at 775.
[16] Allen also argues that counsel was ineffective in making this
decision, but, as we hold infra, he has waived this claim.
[17] Allen very briefly mentions the first two of these issues in his
petition. He makes a brief reference to the third of these issues – which
was not mentioned at all in the petition – in his proposed findings of fact
and conclusions of law. The first two issues are not mentioned in those
proposed findings and conclusions.
[18] Allen’s family members testified that his mother drank heavily on
the weekends, and would occasionally not come home for several days during
these spells. They testified that they would sometimes stand outside the
tavern where she drank and implore adults entering the tavern to get money
from her so that they could eat. They also testified that she drank only
occasionally during the week and seldom drank in front of the children.
Allen’s mother testified during Allen’s sentencing hearing, but died prior
to the post-conviction hearing.
[19] The conditions at the Indiana Boys School during the late 1960s
and early 1970s are documented in Nelson v. Heyne, 355 F. Supp. 451 (N.D.
Ind. 1972), which placed limits on the punishments Allen’s evidence
describes.
[20] These forms of corporal punishment were administered to the
children’s bare buttocks while they bent over. IBS officials meted out
these strappings and paddlings in front of large groups of children.
[21] Two of the former IBS detainees testified that they saw IBS
officials inflict such punishments on Allen on at least two occasions.
[22] Trial counsel also testified that the prosecutors made it clear
to him that they would attempt to introduce Allen’s criminal history if any
opening presented itself.
[23] Counsel’s strategy here resembles Timberlake v. State, 690 N.E.2d
243, 261 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999) in that counsel
minimized the amount of evidence presented during the penalty phase because
of an external factor but made a plea for mercy on his client’s behalf. In
Timberlake, we held that
After an investigation into potentially mitigating evidence, a defense
counsel may decide that it would be better for his client not to
argue, as mitigation evidence, defendant’s background history such as
a history of drug abuse and a bad family life. Instead, defense
counsel may determine that the better strategy would be to attack the
morality and effectiveness of the death penalty itself and inform the
jury that, if sentenced to a term of years, the defendant would likely
spend the remainder of his life in prison.
Id. (citations omitted).
[24] Allen argues that while counsel might have reasonably decided not
to run this risk in front of the jury, he should have called these
witnesses at the sentencing hearing before the judge because the evidence
of the prior conviction would be contained in the pre-sentence
investigation report that the judge would read. See Appellant’s Br. at 84-
85. However, counsel called several witnesses during the sentencing
hearing, including Allen’s mother, sister and uncle. These witnesses
testified to Allen’s difficult childhood, including that Allen grew up in a
poor, fatherless home in which he acted as a protector and that he
sometimes stole so that the family would have food. Therefore counsel
employed just the strategy that Allen suggests here – he avoided opening
the door to the evidence of prior convictions while the case was in front
of the jury, but presented mitigation evidence to the judge when that
threat had passed.
[25] Allen contends that the claim of mental retardation was a
misdiagnosis of his severe learning disability. Appellant’s Reply Br. at 8.
This claim is barred because similar evidence of Allen’s struggles with
learning was presented in the affidavits that were considered on remand and
on direct appeal. These affidavits included discussion from school
officials as to whether Allen should have been placed in special education.
The affidavits also refer to tests of Allen’s “general intellectual
functioning” and document his poor reading skills and low intelligence
quotient. In light of this evidence, which was considered on remand and on
direct appeal, Allen has already litigated this claim.
[26] Dr. Heilbronner also testified that Allen’s impairments would not
prevent him from functioning well in prison. (R.P-C.R. at 2337.)
[27] It appears from the record that whatever investigation trial
counsel conducted did not include mental health professionals. However,
Allen has not demonstrated constitutional error in counsel’s failure to
consult the type of the witnesses he offered on post-conviction review.
First, trial counsel testified at a post-conviction deposition that at the
time of Allen’s trial, attorneys rarely consulted neuropsychologists such
as Dr. Heilbronner. As for the other mental health experts, one – social
worker Hammock – testified to Allen’s family history to which counsel was
already exposed, while the other – forensic psychologist Cunningham –
offered evidence that would have opened the door to prior convictions while
offering little to Allen’s mitigation case. Moreover, the judge had before
him a pre-sentence investigation report that detailed Allen’s criminal
history, but reported no violent acts while in prison. The judge also
received a series of letters in support of Allen, all of which stated that
Allen did not have a violent nature.
[28] Allen also contends that his death sentence is unreliable because
of counsel’s failure to introduce this mitigation evidence. Appellant’s Br.
at 41-43. Having found no constitutional error in counsel’s failure to
introduce such evidence, we similarly reject his claim that the death
sentence was unreliable on these grounds.
[29] We remanded Allen’s direct appeal after it became “apparent that
the record of proceedings in this case [did] not contain a written
sentencing order, which is a violation of Indiana’s death penalty
sentencing procedure.” Allen, 686 N.E.2d at 788 n.32. Our opinion on
direct appeal contains a detailed reproduction of the remand order. Id.
[30] The fact that Allen has waived these claims is reinforced by our
rejection of his petition for rehearing during his direct appeal. Our
direct appeal opinion addressed several issues in regards to the remand.
See Allen, 686 N.E.2d at 787-90. In his petition for rehearing, Allen
raised several more issues, including many of the claims he asserts here.
We rejected Allen’s claims on rehearing and repeat that rejection here.
[31] Specifically, Allen argues that counsel should have introduced
evidence that he
suffered from mental health impairments which significantly restricted
his ability to control his impulses rather than being mentally
retarded. Additionally, there was evidence post-trial that Allen
responded very well to incarceration. There was a wealth of evidence
available to support mitigation circumstances and rebut the State’s
evidence of intent to commit murder.
Appellant’s Br. at 31. Allen cross-references the prejudice he asserts here
with his claims of ineffective assistance of counsel during the penalty
phase. See id. (citing Appellant’s Br. at 70-87.)
[32] Allen suggests that he was completely deprived of counsel on
consideration of the belated motion to correct errors and on remand and
therefore we should presume that he suffered prejudice. See Appellant’s
Br. at 30 (citing Penson v. Ohio, 488 U.S. 75, 88 (1988) (presuming
prejudice because “the denial of counsel in this case left petitioner
completely without representation during the appellate court’s actual
decisional process.”). However, Allen’s appellate counsel chose to file
the affidavits referred to in the order and then challenged the remand
process on appeal. This course of action reflects a conscious decision-
making process by counsel, which should be analyzed under the general
standard of Strickland and not cases (such as Penson) where prejudice is
presumed because counsel is completely absent from an appeal. See Penson,
488 U.S. at 88; see also Strickland, 466 U.S. at 692 (“Actual or
constructive denial of the assistance of counsel altogether is legally
presumed to result in prejudice.”) (emphasis added).
[33]As a related matter, Allen argues that our denial of his belated
motion to correct errors interfered with counsel and rendered his
performance ineffective because he did not have an opportunity to develop a
record. Appellant’s Br. at 38-39. Similarly, he argues that counsel was
rendered ineffective by the limited scope of the remand order and its tight
deadline. Id. at 40-41. Allen again fails to assert that counsel would
have presented any evidence during the belated motion to correct errors or
the remand that he did not also argue should have been presented at the
penalty phase. Having already determined that Allen could not demonstrate
constitutional error in counsel’s choice not to investigate and present
such evidence at the penalty phase, we conclude that he has not shown error
here.
[34] Allen initially hired private counsel, who subsequently withdrew
because Allen was not able to afford his fees. The court appointed two
other attorneys to serve as trial counsel.
[35] We addressed this claim in terms of ineffective assistance of
counsel supra.
[36] This post-conviction appeal follows Allen’s direct appeal by
roughly three and a half years, which is not out of the ordinary in death
penalty cases. See, e.g., State v. Holmes, 728 N.E.2d 164 (Ind. 2000)
(four-year delay between appeals), cert. denied, 121 S.Ct. 2220 (2001);
Williams v. State, 724 N.E.2d 1070, (Ind. 2000) (three-and-one-half year
delay between appeals), cert. denied, 121 S.Ct. 886 (2001); Miller v.
State, 702 N.E.2d 1053 (Ind. 1998) (slightly more than five year delay
between appeals), cert. denied, 528 U.S. 1083 (2000).