Timberlake v. State

ATTORNEYS FOR APPELLANT

Eric K. Koselke
Ann M. Sutton
Special Assistants to the Public Defender of Indiana
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Priscilla J. Fossum
James B. Martin
Deputy Attorneys General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

NORMAN TIMBERLAKE, )
)
Appellant (Petitioner Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9804-PD-252
STATE OF INDIANA, )
)
Appellee (Respondent Below). )
__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Nation, Judge
Cause No. 49G02-9302-CF-14191
__________________________________________________________________

ON PETITION FOR POSTCONVICTION RELIEF

__________________________________________________________________

August 20, 2001

BOEHM, Justice.
Norman Timberlake was convicted of the murder of Indiana State
Trooper Michael Greene and of carrying a handgun without a license. He was
sentenced to death. He appeals the denial of his petition for
postconviction relief and raises four issues: (1) his competency during
trial, direct appeal, and postconviction relief; (2) ineffective assistance
of trial counsel; (3) ineffective assistance of appellate counsel; and (4)
bias of the postconviction court. We affirm the trial court’s denial of
postconviction relief.

Factual and Procedural Background

The facts of this case are reported in Timberlake v. State, 690
N.E.2d 243 (Ind. 1997). In brief, on February 5, 1993, Timberlake and
Tommy McElroy stopped on Interstate 65 to urinate. Master Trooper Michael
Greene pulled up behind them to investigate the car stopped on the
roadside. A radio check identified McElroy as a person wanted by the
police, and as Greene was handcuffing McElroy, Timberlake shot Greene.
Timberlake was caught shortly thereafter in a lounge and charged with
murder, escape, and carrying a handgun without a license. He was convicted
of murder and the handgun violation and was sentenced to death. This Court
affirmed his conviction and sentence on direct appeal. Timberlake, 690
N.E.2d at 250. After this Court issued its opinion, but before an order on
rehearing was issued, Judith Menadue, Timberlake’s appellate attorney,
questioned his competency and filed a motion to hold the appeal in
abeyance. This Court denied the motion and then denied rehearing.
Timberlake filed a petition for postconviction relief on December 7,
1998. After two recusals, Judge Steven Nation was appointed to hear the
case. At the time Judge Nation assumed the case, the postconviction court
had sua sponte ordered two experts to evaluate Timberlake’s competency, but
that process was not complete. Pursuant to Judge Nation’s direction, on
August 2, 1999, Timberlake filed a motion to determine his competency.
After doctors interviewed Timberlake, competency hearings were held on
September 15, September 29, and October 5, 1999. Judge Nation ruled
Timberlake competent. This Court denied a request to present that issue on
interlocutory appeal. The postconviction hearing was held on November 8,
9, 10, 12, and 15 and, on December 27, the postconviction court issued
Findings of Fact and Conclusions of Law denying relief. This appeal
ensued.

Standard and Extent of Review

Timberlake bore the burden of establishing the grounds for relief by
a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because
he is now appealing from a negative judgment, to the extent his appeal
turns on factual issues, Timberlake must convince this Court that the
evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the postconviction court. Harrison v. State, 707
N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d 1117,
1119 (Ind. 1995)). We will disturb the decision only if the evidence is
without conflict and leads only to a conclusion contrary to the result of
the postconviction court. Id. at 774.
Postconviction procedures do not afford a petitioner with a super-
appeal, and not all issues are available. Rouster v. State, 705 N.E.2d
999, 1003 (Ind. 1999). Rather, subsequent collateral challenges to
convictions must be based on grounds enumerated in the postconviction
rules. P-C.R. 1(1); Rouster, 705 N.E.2d at 1003. If an issue was known
and available, but not raised on direct appeal, it is waived. Rouster, 705
N.E.2d at 1003. If it was raised on appeal, but decided adversely, it is
res judicata. Id. (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind.
1994)). If not raised on direct appeal, a claim of ineffective assistance
of trial counsel is properly presented in a postconviction proceeding.
Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of ineffective
assistance of appellate counsel is also an appropriate issue for
postconviction review. As a general rule, however, most free-standing
claims of error are not available in a postconviction proceeding because of
the doctrines of waiver and res judicata. Some of the same contentions, to
varying degrees, may be properly presented in support of a claim of
ineffective assistance of trial or appellate counsel. Because Timberlake’s
direct appeal raised a claim of ineffective assistance of trial counsel, we
address the issues Timberlake raises in this appeal primarily as claims of
ineffective assistance of his appellate counsel in presenting or omitting
issues bearing on his claim of ineffective trial counsel. We also address
those free-standing claims that are not barred by waiver or res judicata.

I. Competency

A. At Trial
Timberlake claims that he was incompetent during his initial trial
and, therefore, his convictions and sentence must be reversed. The
postconviction court held that this issue was waived because it was not
raised on direct appeal. The postconviction court also noted that, before
Timberlake was tried, two experts examined him and determined him to be
competent. The postconviction court found, “Petitioner has produced no
credible evidence that the conclusions reached by trial counsel’s experts
were wrong.”
We agree with the postconviction court that the issue of Timberlake’s
competency at trial was known and available on direct appeal and is
therefore not available as a freestanding claim in postconviction relief.
Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). In any event,
Timberlake has not established that he was incompetent at the time of
trial. For that reason, to the extent failure to present the competency
issue is presented here as appellate ineffectiveness, Timberlake does not
establish the prejudice prong of Strickland v. Washington, 466 U.S. 668,
687, 694 (1984). For the same reason, Timberlake does not fall into the
unusual category recognized in Tinsley v. State, 260 Ind. 577, 298 N.E.2d
429 (1973). In Tinsley, this Court ordered an evidentiary hearing on the
issue of defendant’s competency. The defendant first challenged his
competency in a post-trial motion to correct error. In support of that
motion the defendant submitted a finding of incompetency in a guardianship
proceeding. This Court found that “[i]n certain unique situations facts
coming to light only after the trial may be so significant and compelling
as to create ‘reasonable grounds’ to question a defendant’s competency at
the time of his trial and therefore require a hearing on the question.”
Tinsley’s “unique situation” is not presented here. Timberlake’s
competency was questioned by his trial counsel and Timberlake was examined
by two doctors who concluded he was competent. Nor was there a
contemporaneous finding of incompetency from another court.
To be competent at trial, a defendant must be able to understand the
nature of the proceedings and be able to assist in the preparation of his
defense. Ind. Code § 35-36-3-1 (1998); Brewer v. State, 646 N.E.2d 1382,
1384 (Ind. 1995). In this appeal Timberlake points to incidents from more
than ten years before his arrest, his conspiracy theories during his trial,
and post-trial medical testimony as evidence that he was incompetent at the
time of trial. The information about Timberlake’s competency both before
and after the trial is relevant but far from conclusive of his competency
at trial. Competency is not a static condition. Cf. I.C. § 35-36-3-1.
Given the contemporaneous findings of two doctors that he was competent at
the time of trial,[1] the postconviction court’s finding that Timberlake
has not established that he was incompetent at trial is more than amply
supported by the record, and Timberlake fails to establish prejudice in
counsel’s failure to present the issue on direct appeal.
B. On Direct Appeal
Timberlake also challenges his competency during the direct appeal.
As a preliminary matter, we note that it is not at all clear that
competency is required in a direct appeal. Cf. State v. White, 815 P.2d
869, 878 (Ariz. 1991), abrogated on other grounds by State v. Salazar, 844
P.2d 566 (Ariz. 1992); People v. Kelly, 822 P.2d 385, 414 (Cal. 1992);
People v. Newton, 394 N.W.2d 463, 466 (Mich. Ct. App. 1986), vacated on
other grounds by 399 N.W.2d 28 (Mich. 1987). The postconviction court made
findings on this issue as well. Specifically, the court found that
evidence of Timberlake’s questionable competence was discovered after his
appeal was decided, and, therefore, he had already assisted, as much as
possible, in his appeal. After the opinion on direct appeal was issued in
this case and while rehearing was pending, his appellate attorney, Menadue,
filed a motion to hold the appeal in abeyance based on her perception that
Timberlake was incompetent. At the time that this motion was filed, the
appeal had been decided after having been fully briefed for fifteen months.
That motion was denied by this Court.
We agree with the postconviction court that, even if competency is
required for a direct appeal, Timberlake has not shown that he was
incompetent at the relevant time. Menadue’s suspicions about Timberlake’s
competency were not raised until long after she had filed his appellate
briefs. Thus, even if Timberlake was unable to assist with his defense at
that time, the postconviction court was correct in concluding that this
presents no issue because the brief had already been filed and the issues
already raised. There was testimony from Dr. Gelbort, a psychologist, that
Timberlake was unable to assist in his defense at the time Menadue filed
her motion. But this claim, even if accepted, does not establish his
incompetency at the time his appeal was prepared and presented.
C. At the Postconviction Relief Proceedings
Timberlake’s postconviction counsel argue that mental illness
prevented Timberlake from rationally consulting with them, thus depriving
him of a fair postconviction proceeding.[2] Timberlake’s counsel filed a
motion to determine competency on August 2, 1999. Timberlake was examined
by several doctors and competency hearings were held on September 15,
September 29, and October 5, 1999. The postconviction court ruled that
Timberlake was competent to proceed. Timberlake sought to file an
interlocutory appeal and moved to stay the postconviction proceedings due
to incompetence. This Court denied both motions.
The claim of incompetence in a postconviction proceeding presents two
distinct issues: (1) whether Timberlake was “incompetent,” or unable to
assist his counsel in the preparation of his case and to understand the
nature of the postconviction proceedings, and (2) whether “competence,” as
that term is understood in cases addressing a defendant’s due process
rights at trial, is required in postconviction proceedings. The
postconviction court found against Timberlake on the first issue. Because
we agree that Timberlake’s mental state did not render him unable to
understand the nature of the proceedings and assist in his defense, we
affirm the trial court’s ruling on this point. We therefore leave for
another day the State’s plausible contention that competency is not
required for postconviction proceedings. We observe, however, that it
surely is not an inflexible requirement. It cannot be the case that in all
circumstances an improperly convicted person has no remedy because of his
incompetence. Cf. Jackson v. Indiana, 406 U.S. 715 (1972), rev’g Jackson
v. State, 253 Ind. 487, 255 N.E.2d 515 (1970).
The postconviction court did not address the second issue, but
determined there was “[e]xtensive evidence . . . heard on this [first]
issue, and Petitioner was found competent to pursue post-conviction
relief.” His counsel report that Timberlake says there is a machine that
is able to monitor his words and thoughts and has been used to kill other
prisoners.[3] According to his attorneys, Timberlake believes this machine
to be the only issue relevant to his case, and he will not cooperate with
them if he does not find his attorneys’ actions or strategic decisions
relevant to exposing the machine. His counsel contend that Timberlake’s
belief results from a mental disease that causes him to see the world only
through a deluded version of reality.
The postconviction court applied the familiar standard for trial
competency—the ability to understand the nature of the proceedings and
assist in the preparation of his defense—as the standard for competency to
pursue postconviction relief. See I.C. § 35-36-3-1(a); Brewer, 646 N.E.2d
at 1384. The court then held multiple hearings on the issue and heard from
four experts: Drs. Masbaum, Deaton, Crane, and Ochberg. All four found
that Timberlake understood the nature of the proceedings. Two of the
doctors, Masbaum and Crane, determined that, although Timberlake suffered
from delusions, he was competent to assist in his own defense. The other
two, Deaton and Ochberg, felt that Timberlake was delusional and could not
cooperate or work adequately with postconviction counsel. After hearing
all the evidence, the postconviction court determined that Timberlake was
competent and made detailed findings as to Timberlake’s competence.[4]
These included:
g. That the Court finds by its own observations that the Petitioner
was able to conduct himself in an appropriate manner and was able to
understand and comply with the commands and requests of the Court
during the Court proceedings. Such observations by the Court were
consistent with the psychiatric testimony presented in the cause.
Further, the Court finds that Petitioner was able to understand and
follow the commands and requests of the Bailiffs and/or Police
Officers during Court proceedings. Finally, as set forth in the
psychiatric testimony, the Court finds that the Petitioner was able to
understand and comply with commands or requests of his counsels [sic].
h. That the Petitioner has shown an extensive knowledge and memory of
the proceedings and has also demonstrated that he is well versed in
the law. He is very exacting that statements found in pleadings and
statements in the courtroom be correct.
. . . .
i. Court finds that the Petitioner understands that he has been
convicted of a capital crime, that he was not successful on the appeal
of such conviction and that these proceedings are his last attempt to
review this case, and if he is not successful in this proceeding or if
necessary upon appeal, he will be executed.

Because Timberlake has not established that the evidence unmistakably
points to a contrary conclusion, he cannot prevail on this claim.
We conclude that the postconviction court’s ruling on Timberlake’s
competency is supported by this record, though no single item is
conclusive. It seems clear that Timberlake was able to understand the
nature of the proceedings against him.[5] Second, although Timberlake may
not have cooperated with his lawyers when he disagreed with their
strategies, he has not established that he was unable to assist in his own
defense. We have no basis to dispute his attorneys’ contention that he
was, and presumably is, an extremely difficult client. Nevertheless,
counsel were able to converse with him and provide an adequate
postconviction review of his convictions and sentence. Timberlake’s
postconviction counsel conducted a five-day hearing with thirty-two
witnesses and forty-eight exhibits. Some of these issues were those that
Timberlake was concerned about in a list of potential grounds for
postconviction relief. Timberlake even participated in some of the
questioning by, for example, writing questions for his counsel to ask
witness McElroy. Although medical opinion was divided on this point, two
doctors also testified that Timberlake could assist in his own defense.
In sum, although Timberlake was difficult and had outbursts, he was
also able to understand the nature of the proceedings and assist his
counsel and the court when need be. Given the evidence from the doctors
that Timberlake satisfied the trial competency standard, the almost one
thousand pages of the evidence on Timberlake’s present medical state, the
postconviction court’s own observations and discussions, and the deference
we give to a trier of fact’s determination of competency, we cannot say
that the facts point unswervingly toward a result opposite the one reached
by the postconviction court. See Matheney v. State, 688 N.E.2d 883, 893
(Ind. 1997).

II. Ineffective Assistance of Trial Counsel

For several reasons, Timberlake argues that this Court should revisit
the issue of trial counsel ineffectiveness that was addressed in the direct
appeal. Timberlake, 690 N.E.2d at 259-61. First, Timberlake argues that
some instances of trial counsel ineffectiveness were not raised in the
direct appeal and are therefore not barred by res judicata and must be
addressed now.
This issue was recently addressed by this Court in Ben-Yisrayl v.
State, 738 N.E.2d 253, 259 (Ind. 2000):
In Woods, we held that a defendant may raise a claim of
ineffective assistance of trial counsel for the first time in a post-
conviction proceeding, but we emphasized that once the defendant
chooses to raise his claim of ineffective assistance of trial counsel
(either on direct appeal or post-conviction), he must raise all issues
relating to that claim, whether record-based or otherwise. 701 N.E.2d
at 1220. A defendant who chooses to raise on direct appeal a claim of
ineffective assistance of trial counsel is foreclosed from
relitigating that claim. Id. (“[I]neffective assistance of trial
counsel is not available in post-conviction if the direct appeal
raises any claim of deprivation of Sixth Amendment right to
counsel.”). See also Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind.
1997) (“Some of the [defendant’s arguments on post-conviction appeal]
are new arguments about aspects of trial counsel’s performance we
considered on direct appeal; others focus on aspects not mentioned
earlier. In either case, the earlier ruling that trial counsel was
not ineffective is res judicata.”); Sawyer v. State, 679 N.E.2d 1328,
1329 (Ind. 1997) (“[The defendant], having once litigated his Sixth
Amendment claim concerning ineffective assistance of counsel, is not
entitled to litigate it again, by alleging different grounds.”);
Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984) (“Notwithstanding the
fact that petitioner gave several additional examples of his counsel’s
alleged ineffectiveness during the post-conviction hearing, a
consideration of the ineffectiveness issue would constitute review of
an issue already decided on direct appeal.”).

In his direct appeal, Timberlake raised, and this Court considered and
rejected, a claim of ineffective assistance of trial counsel. Timberlake,
690 N.E.2d at 259-61. Res judicata thus bars him from relitigating this
issue in postconviction proceedings. The postconviction court erred as a
matter of law in considering the merits of the defendant’s claim directly
challenging trial counsel’s effectiveness.
Second, Timberlake claims that trial counsel ineffectiveness should
be revisited because “the initial decision was clearly erroneous.” Because
he does not explain how this Court’s decision was clearly erroneous, or
present a cogent argument as to how this case presents the “extraordinary
circumstance” where “the initial decision was clearly erroneous and would
work [a] manifest injustice” necessary to avoid res judicata, this claim is
waived. Former Ind. Appellate Rule 8.3(A)7 (now App. R. 46(A)8); Conner v.
State, 711 N.E.2d 1238, 1247 (Ind. 1999).
Third, Timberlake claims that trial counsel worked on the direct
appeal and, therefore, the question of trial counsel’s ineffectiveness
should have been postponed for postconviction relief and is now available.
For the reasons given in Part III of this opinion, counsel in the direct
appeal were not under an impermissible conflict of interest in raising this
claim and appellate counsel’s decision to raise trial counsel ineffective
assistance of counsel was not deficient performance. Therefore, this
argument fails as well.

III. Ineffective Assistance of Appellate Counsel

Timberlake claims that his appellate counsel was ineffective for
raising trial counsel ineffective assistance of counsel on direct appeal
when several of the instances of trial counsel ineffectiveness needed
information outside of the record and should have been preserved for
postconviction relief. Otherwise stated, he contends that Menadue
unreasonably took the risk of precluding undeveloped claims that remained
and also raised claims that were not supported by the record. He also
raises claims based on issues that were addressed on direct appeal,
apparently challenging the appellate presentation of these issues.
A. The Elements of Appellate Ineffectiveness
A defendant claiming a violation of the right to effective assistance
of counsel must establish the two components set forth in Strickland v.
Washington, 466 U.S. 668 (1984); accord Williams v. Taylor, 529 U.S. 362,
390-91 (2000). First, the defendant must show that counsel’s performance
was deficient. Strickland, 466 U.S. at 687. This requires a showing that
counsel’s representation fell below an objective standard of
reasonableness, id. at 688, and that the errors were so serious that they
resulted in a denial of the right to counsel guaranteed the defendant by
the Sixth Amendment, id. at 687. Second, the defendant must show that the
deficient performance prejudiced the defense. Id. To establish prejudice,
a defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord those decisions deference. Id. at 689. A
strong presumption arises that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. The Strickland Court recognized that even the
finest, most experienced criminal defense attorneys may not agree on the
ideal strategy or the most effective way to represent a client. Id. at
689. Isolated mistakes, poor strategy, inexperience, and instances of bad
judgment do not necessarily render representation ineffective. Bieghler v.
State, 690 N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d 1041,
1051 (Ind. 1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987). The two
prongs of the Strickland test are separate and independent inquiries.
Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be
followed.” Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting
Strickland, 466 U.S. at 697).
This Court has recognized three categories of alleged appellate
counsel ineffectiveness: (1) denying access to an appeal, (2) failing to
raise issues, and (3) failing to present issues competently. Bieghler, 690
N.E.2d at 193-95. 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 postconviction. The postconviction court must conclude
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, Timberlake’s burden before the
postconviction 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).
B. Timberlake’s Claims
As a preliminary matter, Timberlake’s claim of ineffective assistance
of appellate counsel appears to consist of several parts and subparts: (1)
appellate counsel was ineffective for raising trial counsel ineffectiveness
in the direct appeal (a) by reason of participation of trial counsel in the
appeal and (b) for having raised the issue at all; (2) appellate counsel
was ineffective in raising shortcomings of trial counsel in the guilt phase
by either (a) not raising claims or (b) not adequately supporting them; and
(3) appellate counsel was ineffective in presenting trial counsel’s errors
in the penalty and sentencing phases, either by (a) not raising claims or
(b) not adequately supporting them.
1. Appellate Ineffectiveness for Raising Ineffective Assistance of
Trial Counsel
Timberlake first claims that appellate counsel was ineffective for
raising trial counsel’s ineffectiveness on direct appeal because one of the
trial attorneys, Ellen O’Connor, was also appellate counsel. Timberlake
claims that this created a conflict of interest that requires review of
this contention under the standard set forth in Cuyler v. Sullivan, 446
U.S. 335 (1980), for claims of conflicted counsel. The postconviction
court found, “Trial counsel Ellen O’Connor was originally appointed as co-
counsel because of her relationship with Petitioner, but Menadue asked
O’Connor to withdraw her appearance, which O’Connor did, before the briefs
were written. O’Connor did not participate in the writing or review of the
appellate briefs.” Although O’Connor’s motion to withdraw was denied by
this Court, the postconviction court’s finding of no actual conflict of
interest is supported by testimony from both Menadue and O’Connor that
O’Connor did not write or review the appellate brief. That finding is not
clearly erroneous and eliminates the factual predicate of this contention.
Timberlake also argues that appellate counsel was ineffective for
raising three grounds of trial counsel ineffective assistance of counsel in
the direct appeal: (1) failure to confront McElroy with evidence
challenging his credibility, (2) failure to present mitigation evidence at
the penalty phase, and (3) failure to present and argue mitigation at the
sentencing phase. He argues that these claims should have been preserved
for postconviction because there was not an adequate record on direct
appeal to establish prejudice. The postconviction court did not directly
address this contention, but observed that Timberlake argued that these
claims of ineffective trial assistance were raised on appeal “without
sufficient investigation.”
To prevail on this claim, Timberlake must show not only that appellate
counsel performed deficiently by raising these claims on direct appeal, but
also that evidence established in postconviction relief would have proved
trial counsel’s ineffectiveness. Because Timberlake has failed to
establish deficient performance by his appellate counsel, he has not
satisfied his burden.
At the time of Timberlake’s direct appeal, Woods v. State, 701 N.E.2d
1208 (Ind. 1998), had not been decided. Appellate counsel Menadue
testified that the case law in Indiana was “not crystal clear” as to when
ineffective assistance of trial counsel should be raised. Indeed, in Woods
we acknowledged this ambiguity: “Despite the frequency with which
challenges to the effectiveness of trial representation appear in
postconviction petitions in this State, this Court has not conclusively
resolved whether waiver of this claim (1) always arises from a failure to
raise it on direct appeal, or (2) never does, or (3) turns on whether there
was or might have been a need for extrinsic evidence to assess either
attorney competence or prejudice.” Id. at 1213. Menadue testified in
postconviction relief that she concluded that she was required to raise the
trial counsel ineffectiveness claims that appeared on the face of the
record or risk waiver of these claims. Menadue raised the issue of trial
counsel ineffective assistance of counsel on direct appeal after
consultation with Timberlake’s trial counsel and investigation staff and
several other attorneys. She faced the choice of either raising the claims
on direct appeal without the benefit of extensive extra-record research or
risking waiver. Although in hindsight, her decision may not have been the
best one, that is not the standard by which we evaluate her actions. As
this Court has stated, “Judicial scrutiny of counsel’s performance is
highly deferential and should not be exercised through the distortions of
hindsight.” Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995). Judged
by this standard, Menadue’s decision did not fall below an objective
standard of reasonableness.
2. Appellate Ineffectiveness as to Guilt Phase Claims
a. Failure to Present Evidence, Argument, or Instructions on
Intoxication
Timberlake also argues that appellate counsel was ineffective for
failing to raise trial counsel’s ineffectiveness for not pursuing an
intoxication defense. The postconviction court addressed this as an issue
of trial counsel ineffective assistance of counsel and found that trial
counsel was not ineffective for failing to pursue an intoxication defense
because it was inconsistent with Timberlake’s principal claim that he was
not the shooter. Moreover, there was evidence that Timberlake drank both
before and after the shooting, making any conclusions about his
intoxication level at the time of the murder highly speculative.
Appellate counsel did not raise this issue on appeal. Therefore, this
claim is reviewed as a Bieghler type two issue, that is, failure to present
an issue. This Court has noted several times the need for a reviewing
court to be deferential to appellate counsel on this issue:
[T]he reviewing court should be particularly sensitive to the need for
separating the wheat from the chaff in appellate advocacy, and should
not find deficient performance when counsel’s choice of some issues
over others was reasonable in light of the facts of the case and the
precedent available to counsel when that choice was made.

Bieghler, 690 N.E.2d at 194. This Court has approved of the two-part test
used by the Seventh Circuit to evaluate these claims: (1) whether the
unraised issues are significant and obvious from the face of the record and
(2) whether the unraised issues are “clearly stronger” than the raised
issues. Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Otherwise stated, to prevail on a claim of ineffective assistance of
appellate counsel, “a defendant must 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, 738
N.E.2d at 260-61.
Menadue filed a 154-page brief and raised twenty-eight issues. She
thoroughly reviewed the record and interviewed trial counsel and other
members of Timberlake’s legal team before choosing what issues to raise on
appeal. She was not deficient for failing to raise this issue because it
was neither significant nor carried a reasonable probability of success.
Although there was evidence that Timberlake was intoxicated at the time of
the murder, he has not established that this defense would have had a
reasonable probability of success at trial. Under the law at the time, in
order to succeed on a defense of voluntary intoxication, the intoxication
had to be so severe as to preclude the defendant’s ability to form the
requisite mens rea. Ferguson v. State, 594 N.E.2d 790, 792 (Ind. 1992).
Evidence that the defendant could plan, operate equipment, instruct the
behavior of others, carry out acts requiring physical skill, disengage and
leave the scene, and find his way to a friend’s home seeking aid show that
his intoxication was not so great as to relieve him from responsibility for
his acts. Id. (citing Hughett v. State, 557 N.E.2d 1015, 1017-18 (Ind.
1990)). Here, Timberlake was able to shoot Greene, flee the scene of the
crime, and then phone for assistance. There was no reasonable probability
that the defense would have succeeded at trial.[6]
Timberlake’s argument fails for a second reason as well. We think it
is clear that trial counsel was not deficient for failing to raise
Timberlake’s intoxication at the guilt phase. Timberlake’s defense was
that McElroy did the shooting. Trial counsel’s decision not to pursue a
voluntary intoxication defense was a reasonable professional decision to
avoid seemingly inconsistent defenses. Because trial counsel was not
deficient, appellate counsel cannot be deficient for failing to raise this
issue.
b. Failure to Raise Trial Counsel’s Cross-Examination of Hood
Timberlake also challenges the handling of State witness Roy Hood.
Hood was a passing motorist who claimed to have seen a man fitting
Timberlake’s description shoot Greene. Before trial, Hood made several
inconsistent statements about the incident. At the postconviction relief
proceeding, Hood testified that when he saw Greene, he had already been
shot. Also, at the postconviction relief hearing, a coworker of Hood’s
testified that Hood had told specific lies to him and was a liar with a bad
reputation in the community. The postconviction court again addressed this
issue only in terms of ineffective assistance of trial counsel: “[T]rial
counsel was intimately familiar with the State’s case and witnesses and
many—if not all—significant witnesses were deposed by trial counsel.
Petitioner cannot show that trial counsel performed deficiently in this
regard.”
Because appellate counsel did not raise this issue on appeal, it again
presents a Bieghler type two issue. Therefore, Timberlake must 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, 738 N.E.2d at 260-61. This issue does
not appear to be a significant and obvious one. In any event, it would not
have established trial counsel ineffectiveness. Although Hood was not
questioned at trial about all the inconsistencies discovered by
postconviction investigation, trial counsel did cross-examine Hood on
several discrepancies in his statements. As we noted in the direct appeal:
“As defendant made clear during his cross-examination of Hood, there were
inconsistencies. However, the basic points of his testimony remained the
same and were corroborated by others.” Timberlake, 690 N.E.2d at 253 n.1.
We cannot say that the postconviction evidence unmistakably and unerringly
points to a conclusion contrary to the postconviction court’s on the issue
of trial counsel’s performance in this respect. Furthermore, Timberlake
has not established that appellate counsel was deficient based on the
information available to her—which did not include information on Hood’s
reputation for dishonesty—at the time of the direct appeal. Because
Timberlake has established neither deficient performance nor prejudice on
this point at the trial level, this issue was not an obvious one which
appellate counsel was deficient for failing to raise.
c. Inadequate Presentation of Trial Counsel’s Cross-Examination of
McElroy
Timberlake claims that appellate counsel ineffectively raised trial
counsel’s ineffectiveness in failing to cross-examine McElroy. Menadue
challenged trial counsel’s handling of McElroy, Timberlake, 690 N.E.2d at
260, but Timberlake now claims that she was ineffective in her handling of
this claim because the postconviction record established that McElroy was
under the influence of anti-psychotic drugs, was undergoing counseling, and
had been threatened with the death penalty, all of which may have affected
his perceptions on the day of the shooting and were not presented in her
claim of trial counsel ineffective assistance of counsel. The
postconviction court found this claim to be res judicata as to trial
counsel ineffective assistance of counsel and did not address it as to
appellate ineffective assistance of counsel.
This claim asserts a type three Bieghler error. This Court observed
that “[c]laims of inadequate presentation of certain issues, when such were
not deemed waived in the direct appeal, are the most difficult for convicts
to advance and reviewing tribunals to support.” Bieghler, 690 N.E.2d at
195 (emphasis in original). These claims are reviewed under the highest
standards of deference to counsel’s performance and relief will be awarded
only where “the appellate court is confident it would have ruled
differently.” Id. at 196.
We do not believe that Timberlake has established either prong of the
Strickland test with respect to this claim. Menadue’s failure to include
evidence of McElroy’s medications in her challenge to trial counsel’s
handling of his cross-examination does not rise to the level of deficient
performance given the role and function of appellate counsel on direct
appeal. First, Menadue cannot “be measured by information unknown to
appellate counsel but later developed after the appeal by post-conviction
counsel.” Ben-Yisrayl, 738 N.E.2d at 261. Second, McElroy was questioned
extensively at trial and at postconviction and his version of events never
changed with respect to his identification of Timberlake. Timberlake, 690
N.E.2d at 252 (“McElroy did not waver in his identification of defendant as
the shooter, nor was his testimony unsupported by other witnesses or
circumstantial evidence. The jury was aware of the inconsistencies and was
faced with the responsibility of judging the credibility of the witnesses
and determining what occurred.”). Finally, the record challenging this
omission does not establish a reasonable probability that McElroy’s
perception was clouded.[7] The postconviction evidence therefore does not
establish a reasonable probability of a different result. Because
Timberlake did not establish trial counsel ineffectiveness on this point,
he cannot establish that appellate counsel was ineffective for inadequate
presentation of this issue.
3. Appellate Counsel’s Failure to Raise Trial Counsel’s
Ineffectiveness as to Penalty Phase Claims
Timberlake also challenges appellate counsel’s handling of trial
counsel’s performance during the penalty and sentencing phases.
a. Failure to Present Evidence, Argument, or Instructions on
Intoxication
Timberlake first argues that appellate counsel was ineffective for
failing to raise trial counsel’s ineffectiveness in not presenting any
evidence, argument, or instructions on intoxication at the penalty and
sentencing phases. Although the postconviction court did not address the
intoxication issue specifically, it did note that appellate counsel was not
ineffective for failing to raise eighteen specific claims of ineffective
assistance of trial counsel because Timberlake cannot show that these
alleged errors of trial counsel denied him a fair trial.
This claim was not raised in the direct appeal, and is thus a Bieghler
type two issue. As we noted earlier, reviewing courts are particularly
deferential to appellate counsel’s decisions on what issues to raise.
Using the two-part test from Bieghler, it is clear that although the issue
of intoxication was obvious from the face of the record, it is not clearly
stronger than the issues raised by appellate counsel. Menadue raised
twenty-eight issues in her appellate brief, including that trial counsel
was ineffective at all three phases of the trial. She also raised four
instances of ineffectiveness in the guilt phase, including trial counsel’s
failure to present mitigation evidence. Although intoxication may be a
mitigating factor, this Court does not require it to be considered. See
Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997). As already noted,
Timberlake was able to fire a gun, escape, and place a telephone call for
help. We cannot say that it was unreasonable to raise the arguments that
were presented in lieu of a claim of trial ineffectiveness based on
inadequate presentation of intoxication as mitigation.
b. Appellate Counsel’s Handling of Trial Counsel’s Failure to Present
Any Mitigation Evidence at Penalty Phase
Timberlake claims that appellate counsel ineffectively presented trial
counsel’s ineffectiveness for failure to present mitigation evidence at the
penalty phase. Specifically, Timberlake claims that trial counsel was
ineffective for failing to subpoena any witnesses for the penalty phase and
for failing to present expert witnesses, and that this led to the
presentation of no mitigation evidence.
Menadue raised this issue in the direct appeal and this Court
concluded that trial counsel “may have reasonably concluded that to argue
any mitigation evidence would be ineffective and would open the door to
damaging rebuttal.” Timberlake, 690 N.E.2d at 261. The postconviction
court, in addressing this issue as one of trial counsel ineffectiveness,
stated that “[t]here can be no question that trial counsel also conducted a
proper mitigation investigation[,] effectively investigated the strength of
the State’s request for the death penalty[,] and presented the most
appropriate defense to that request, given the facts of the Petitioner’s
crime and his lengthy criminal history.”
Under the deferential standard of review of this claim, Timberlake has
failed to establish his claim of appellate counsel ineffective assistance
of counsel for two reasons. First, he has not established that Menadue’s
handling of the issue on direct appeal was deficient. From the information
known to Menadue and available in the record, she cannot be deficient for
failing to contend that the lack of subpoenas was the cause of the
deficient performance. This information only became available in
postconviction relief, and, thus, is not relevant to her performance.
Furthermore, because the lack of mitigation evidence was ascertainable from
the record, Menadue did not err in raising this issue on direct appeal.
See Part III.A.
Second, Timberlake has not established that there was prejudice from
trial counsel’s failure to present mitigation evidence and, therefore, any
prejudice from appellate counsel’s performance. The death penalty
aggravator in this case is Indiana Code section 35-50-2-9(b)(6), the
killing of a police officer in the course of duty. As we have previously
noted,
The killing of a police officer in the course of duty is a most
serious crime. Police officers routinely risk their lives in the
sometimes high stakes gamble of protecting society. They do a job
that we all want and need done, though few of us possess the bravery
and skill to do. They ask for little in return, but they do ask for
some protection. The General Assembly recognized this in enacting the
statutory aggravator of Indiana Code § 35-50-2-9(b)(6). The
seriousness of this aggravator is magnified in the present case due to
defendant’s use of such deadly force to kill an unaware and
unsuspecting police officer in an otherwise nonviolent and ordinary
arrest.

Lambert v. State, 675 N.E.2d 1060, 1066 (Ind. 1996) (citations omitted).
Although trial counsel could have presented evidence of Timberlake’s
difficult childhood and substance abuse problems, this evidence has
previously been held to be not very weighty. See Coleman v. State, 741
N.E.2d 697, 700 (Ind. 2000); Peterson v. State, 674 N.E.2d 528, 543 (Ind.
1996). In this case, Timberlake shot a police officer for no apparent
reason after the officer had allowed Timberlake to go free. This situation
is, if anything, more egregious than Lambert, where the defendant had been
arrested by the police officer he killed. Furthermore, Timberlake’s
mitigation evidence was that his family was poor, his parents were
alcoholics, and Timberlake had a problem with alcohol. Although
Timberlake’s father was physically abusive, the evidence is not nearly as
disturbing as that presented in Coleman.[8] As in this case, Coleman’s
counsel presented no mitigating evidence, but relied instead on a general
religious and moral argument against the death penalty and a request for
mercy. We concluded that:
Taking into consideration all the evidence, both presented and
omitted, and our previous holdings that a difficult childhood carries
little mitigating weight, we conclude that it is extremely unlikely
that the sentencing result would have been different had Coleman’s
trial counsel presented credible evidence of Coleman’s childhood abuse
and neglect. Because we find no reasonable probability that Coleman
would have avoided a death sentence based on the omitted evidence,
Coleman’s claim of IAC at the penalty and sentencing phase of his
trial fails under the second prong of Strickland.

Coleman, 741 N.E.2d at 703.
Given the minor weight of the mitigators and the aggravator present in
this case, there is not a reasonable probability that the jury would have
found the mitigators to outweigh the very weighty aggravator. Because
appellate counsel was not deficient and there was no trial court prejudice,
Timberlake fails on this claim.
c. Failure to Present Any Mitigation Evidence at Sentencing Phase
Timberlake also challenges appellate counsel’s presentation of trial
counsel’s failure to present mitigation evidence in the sentencing phase.
Appellate counsel raised this issue on direct appeal, and for the same
reasons discussed above in Part III.B.3.b, Timberlake fails on this claim
as well.

IV. Postconviction Court Bias

Finally, Timberlake claims that he was deprived of his due process
right to a fair and disinterested tribunal because of bias on the part of
Judge Nation.
The law presumes that a judge is unbiased and unprejudiced. In re
Edwards, 694 N.E.2d 701, 711 (Ind. 1998); Smith v. State, 535 N.E.2d 1155,
1157 (Ind. 1989). Our Judicial Code provides that when a judge’s
impartiality might be reasonably questioned because of personal bias
against a defendant or counsel, a judge is to recuse himself. Ind.
Judicial Conduct Canon 3(E)(1)(a); accord Edwards, 694 N.E.2d at 710. The
test for determining whether a judge should recuse himself or herself under
Judicial Canon 3(E)(1) is whether “an objective person, knowledgeable of
all the circumstances, would have a reasonable basis for doubting the
judge’s impartiality.” Edwards, 694 N.E.2d at 711. Timberlake has not
satisfied this test.
A. Ex Parte Communications
Timberlake argues that Judge Nation engaged in an ex parte
communication with Dr. Masbaum, an expert witness, in violation of Judicial
Canon 3(B)(8). Generally, the Code of Judicial Conduct prohibits a judge
from engaging in ex parte conversations that relate to pending proceedings.
Jud. Canon 3(B)(8); accord Bell v. State, 655 N.E.2d 129, 131 (Ind. Ct.
App. 1995). An exception to this general rule is found under Judicial
Canon 3(B)(8)(a), which permits ex parte communications for scheduling,
administrative purposes, or emergencies that do not deal with substantive
matters of a pending case. Under this exception, the judge must: (1)
reasonably believe that no party will gain a procedural or tactical
advantage and (2) promptly notify all other parties of the substance of the
ex parte communication and allow an opportunity to respond. James v.
State, 716 N.E.2d 935, 940-41 (Ind. 1999).
On September 28, 1998, Masbaum conducted an initial examination of
Timberlake. On August 30 and September 2, 1999, Timberlake filed
objections to the participation of Masbaum. Judge Nation contacted Masbaum
and informed him of the objections against him[9] and provided Masbaum with
a copy of these proceedings. These objections were discussed in a hearing
on September 2, and were overruled. In an order on that hearing, Judge
Nation stated:
The Petitioner’s request to exclude Dr. Masbaum as a Court appointed
psychiatrist is hereby denied on the grounds that there has been
insufficient evidence presented to this Court to show any impropriety
which may exclude Dr. Masbaum from such examination. The Court
advised the parties that Court staff will contact Dr. Masbaum to
determine whether he would wish to serve in such capacity and the
parties should be advised that Dr. Masbaum has agreed to continue as
the Court appointed psychiatrist.

During Masbaum’s second interview with Timberlake he determined that
Timberlake was competent. Timberlake claims that the trial judge’s ex
parte communications with Masbaum prejudiced him because they led to a
different diagnosis.
Judge Nation’s communication with Masbaum falls under the ministerial
exception to the bar on ex parte communications. Under the James test,
Judge Nation reasonably believed that neither side gained a tactical
advantage and notified both parties of the communications. Therefore, this
communication does not present a reasonable basis for doubting Judge
Nation’s impartiality.
B. Interference in Attorney-Client Relationship
Timberlake also alleges that Judge Nation was biased and damaged the
attorney-client relationship between Timberlake and his counsel. As
examples of how Judge Nation “damaged the attorney-client relationship,”
Timberlake points to the trial judge’s handling of the competency issue,
comments to Timberlake, and allowing evidence of the machine to be admitted
and discussed. As a preliminary matter, we note that Timberlake cites no
authority for this proposition. Turning to the first allegation,
Timberlake contends that Judge Nation undermined Timberlake’s confidence in
his attorneys by requiring them to raise the competency issue. It appears
that Judge Nation handled the issue as he did because he believed it was
the correct legal procedure. Client disagreements with counsel often arise
as a result of court rulings. We see no basis for a claim that the judge
attempted to interfere with Timberlake’s attorney-client relationship.
Judge Nation’s handling of Timberlake, including comments about
Timberlake’s understanding of events and investigation of the machine, also
do not support his claim of bias. Judge Nation appears to have done his
best to deal with a difficult defendant and to ensure that his rights were
being protected.
None of the claimed actions by Judge Nation are responsible for a
breakdown in the attorney-client relationship or constitute proof of bias.
In fact, when ruling on Timberlake’s counsel’s motion to withdraw, the
trial judge praised postconviction counsel: “I know that he is a difficult
client, in that, he has a strong opinion as to what he feels needs to be in
the record or what witnesses need to be called. It’s obvious that you
disagree with him concerning some of these directions. But from the
standpoint of the Court, I think you’re very—both of you are very good
counsel.” Timberlake has not established that there was a reasonable basis
for challenging Judge Nation’s impartiality.
C. Refusal to Medicate
Finally, Timberlake claims that Judge Nation was biased when he
refused to order any medication for Timberlake. Timberlake’s counsel filed
a motion requesting that he be treated. Judge Nation denied this request.
Timberlake claims that this denial illustrates the judge’s bias against
Timberlake in light of the medical evidence that Timberlake was psychotic.
As a preliminary matter, we again note that Timberlake cites no
authority for this proposition. Judge Nation held a lengthy hearing on the
issue of Timberlake’s competency and then determined that Timberlake was
competent to proceed without medical treatment. Timberlake himself stated
several times that he wanted no medication. Because we cannot say that
this finding is clearly erroneous, see Part I, Judge Nation’s decision to
deny medication does not appear to reasonably question his impartiality.

Conclusion

The judgment of the postconviction court is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Although Timberlake now challenges these findings as “unreliable,” he
does not carry his burden of establishing that they were incorrect. Two
doctors testified at the postconviction proceedings. One doctor called the
findings of the reports created before the trial “suspect.” Another
testified that the reports could not be analyzed without viewing the raw
data used to create them. As the postconviction court found, this
testimony, even if fully accepted, does not establish Timberlake’s
incompetency at trial.
[2] Postconviction counsel also argue that they “were unable to
investigate, prepare, and present any type of cogent postconviction
petition on behalf of Mr. Timberlake.” To the extent this is an argument
concerning Timberlake’s competency, it is addressed below. To the extent
it is an argument concerning counsel’s own ineffectiveness, it cannot be
raised. Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999).
[3] The postconviction court found that “[t]here is no machine that
monitors Petitioner’s mind and/or controls his thoughts.”
[4] The final findings were in significant part adopted from the State’s
proposed findings, but the record does not suggest this is true of the
findings as to competency.
[5] All four doctors agreed on this point. This can also be seen from
Timberlake’s activities. The issues he discussed as potential grounds for
postconviction relief demonstrated that Timberlake understood the nature of
the proceedings and could assist his attorneys. Although his list
contained numerous references to the machine, Timberlake also challenged
appellate counsel’s focus on his sentencing when he believed that the guilt
phase was more important. He identified issues with the cross-examination
of McElroy. As one of the doctors observed, Timberlake understood who his
attorneys were and expressed dissatisfaction with one of them, understood
that there had been a judge change, and had a file full of legal documents
pertaining to his situation. The postconviction court observed that
Timberlake, although occasionally unruly, was generally able to follow
commands and conduct himself in court. Several times throughout the
proceedings, Timberlake discussed the case and took note of the relevant
proceedings, including that his competency has been decided four times.
[6] Timberlake also argues that “intoxication could have served as a
defense to the mental state required to make [his] murder conviction
eligible for the death penalty.” His death penalty eligibility was based
on killing an officer acting in the course of duty. For the same reasons a
defense of intoxication would have failed under the circumstances of this
case, there is not a reasonable probability that intoxication would have
succeeded as a defense to the mens rea requirement of the death penalty
aggravating circumstance.
[7] Testimony at the postconviction proceeding established that McElroy had
taken two Mellarill pills the day of the shooting, was undergoing
counseling, and had been on anti-psychotic medication when he was
incarcerated shortly before the shooting.
[8] In Coleman,
Coleman offered testimony, inter alia, that his mother was a gambler
and a prostitute who “starved, beat & hustled” her children. Coleman
spent most of his childhood in conditions of squalor, living with a
grandmother who practiced voodoo and who told Coleman that his mother
had discarded him in a trash can when he was born. The grandmother
verbally vilified and physically beat Coleman. She addressed him by
his widely-known nickname “Pissy” because Coleman had bedwetting
problems through his early teens.
Coleman, 741 N.E.2d at 701 (citations omitted).
[9] It is not entirely clear what this contact entailed. The only
testimony on this point is from a competency hearing in which defense
counsel asked Masbaum: “[S]o you were—okay—did there come another occasion
you were aware, or see any pleadings in reference to that matter?” Masbaum
responded, “Well, the Judge—uh—indicated to me that I was—that there was a
pleading to take me off the case. That’s what I understood.”