WALLACE, Donald Ray, ) Supreme Court case no. petitioner, ) 84S00-0412-SD-502 v. ) STATE OF INDIANA, ) Vigo Circuit Court case no. respondent. ) C-CR-80-9Donald Ray Wallace was convicted of four counts of murder and sentenced to death on the unanimous recommendation of a jury. Since then, he has had the convictions and sentence reviewed by a state trial court in two post-conviction proceedings, by this Court three times on appeal, and at all three levels of the federal judicial system. Wallace now requests permission to seek further review in state court. He concedes that courts have already considered and rejected the claims he presents. Because we conclude that Wallace has not shown a reasonable possibility that he is entitled to relief, we deny his request.
PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF IN CAPITAL CASE
The State sought the death penalty, alleging two aggravating circumstances that would render
Wallace eligible for a death sentence: the murders committed during the burglary
had been intentional and multiple murders had been committed. See Indiana Code
§ 35-50-2-9(b)(1) & (8). The jury unanimously recommended the death penalty.
The Vigo Circuit Court followed the jurys recommendation and sentenced Wallace to death.
The convictions and sentence were affirmed on direct appeal in Wallace v. State,
486 N.E.2d 445 (Ind. 1985), rehg denied, cert. denied 478 U.S. 1010 (1986).
The trial courts judgment denying relief in Wallaces first state court post-conviction
proceeding was affirmed on appeal in Wallace v. State, 553 N.E.2d 456 (Ind.
1990), rehg denied, cert. denied, 500 U.S. 948 (1991). The trial courts
judgment denying relief in a second state court post-conviction proceeding was affirmed on
appeal in Wallace v. State, 640 N.E.2d 374 (Ind. 1994), rehg denied, cert.
denied, 514 U.S. 1115 (1995). The federal courts denied Wallaces petition for
a writ of habeas corpus in Wallace v. Davis, No. IP95-0215-C-B/S 2002, WL
31572002 (S.D. Ind. Nov. 14, 2002), affd, 362 F.3d 914 (7th Cir.), rehg
and rehg en banc denied, 373 F.2d 844, cert. denied, 543 U.S.
___, 125 S.Ct. 617 (2004).
Wallace has thus completed the review of the convictions and sentence to which
he is entitled as a matter of right.
By counsel, Wallace has now filed a Tender of Successive Petition for Post-Conviction
Relief and has submitted a proposed Petition for Post-Conviction Relief. The State
filed its Verified Response in Opposition to Tender of Successive Petition For Post-Conviction
Relief, and Wallace was allowed to file Petitioners Reply to States Verified Response
in Opposition to Tender of Successive Petition For Post-Conviction Relief.
We have jurisdiction because Wallace has been sentenced to death. See Ind.
Appellate Rule 4(A)(1)(a).
The doctrine of res judicata prevents the repetitious litigation of claims that, like
Wallaces, have already been decided. See, e.g., Daniels v. State, 741 N.E.2d
1177, 1184 (Ind. 2001); Wrinkles v. State, 776 N.E.2d 905, 908 (Ind.
2002). Wallace correctly notes that the bar of res judicata may sometimes
not be enforced if the initial decision was "clearly erroneous and would work
manifest injustice." See, e.g., Arthur v. State, 663 N.E.2d 529, 531 (Ind.
1996) (internal quotation omitted). But Wallace has not shown that the prior
decisions were erroneous or unjust, much less clearly or manifestly so.
Claim No. 2. Wallace contends the trial court did not fully consider
Wallaces mental health status as a mitigating circumstance. We addressed the issue
of mitigating circumstances in the direct appeal and the first post-conviction appeal.
See Wallace v. State, 486 N.E.2d at 463 (Although the court did not
list each possible mitigating factor and dispose of it, he found that there
were absolutely no mitigating factors to be weighed against the aggravating ones.
The trial courts findings are amply supported by the record.); Wallace v. State,
553 N.E.2d at 470-71 (the jury was accurately instructed with respect to mitigating
circumstances and the trial court made findings regarding the lack of any mitigating
circumstances and discussed all of these issues at length).
Wallace asks us to reconsider the matter in light of Texas v. Smith,
543 U.S. ___, 125 S.Ct. 400 (2004). Smith turned on an improper
jury instruction. In Wallaces case, both the jury and the trial
court were properly informed about mitigating evidence. Wallace has not established a
reasonable possibility that he is entitled to relief on the basis of Smith.
Therefore, to the extent this claim is the same claim made and rejected
in prior proceedings, the claim is barred by the doctrine of res judicata.
See, e.g., Daniels, 741 N.E.2d at 1184; Wrinkles, 749 N.E.2d 1179, 1187
n. 3 (Ind. 2001). To the extent Wallaces claim is raised for
the first time, as the State contends, the claim is procedurally defaulted for
not having been presented timely, and we decline to address it. See,
e.g., Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002); Wrinkles v. State,
749 N.E.2d at 1187 n.3. This was the District Courts conclusion.
See Wallace v. Davis, 2002 WL 31572002 at *25 (S.D. Ind. 2002).
Because Wallace has already had extensive judicial review and there is pending before
us the States motion requesting that a date be set for execution of
the sentence, any request for rehearing must be prompt. Rehearing should not
be sought if Wallace simply intends to raise the same arguments we have
already addressed, but if he does petition for rehearing, the petition must physically
be filed with the Clerk no later than January 21, 2005. The
States response must be physically filed with the Clerk no later than January
28, 2005. To minimize any delay in the service and receipt of
papers, the attorneys are ordered to certify in papers presented for filing that
copies have been sent by fax to the Supreme Court Administration office (fax
number 317/232-8372), and by fax or electronic mail to the other partys attorney.
The Clerk is directed to send a copy of this order to the
Public Defender of Indiana; the Attorney General of Indiana; to the Public
Defender Council; to the Prosecuting Attorneys Council; to all counsel of record; and
to West Publishing for publication in the bound volumes of this Courts decisions.
DONE AT INDIANAPOLIS INDIANA, this 13th day of January , 2005.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson, Sullivan, Boehm and Rucker, JJ., concur.