Attorney for Appellant Attorneys for Appellee
Eric K. Koselke Steve Carter
Indianapolis, IN Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorneys General
Appeal from the Marion Superior Court, No. CR81-009B
The Honorable Amy J. Barnes, Master Commissioner
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0207-PC-522
March 16, 2005
In 2001, the Court of Appeals granted Graves permission to file a successive
petition for post-conviction relief. Ind. Post-Conviction Rule 1(12). In filing this
new petition, Graves alleged that Lewis provided ineffective assistance of counsel during the
first post-conviction proceeding. The court held an evidentiary hearing and denied
The Court of Appeals reversed, saying:
Lewis failed to make an adequate attempt to establish that the record could
not be reconstructed. If he had been successful in doing so, the
post-conviction courts ruling on the petition could have been different. We conclude
Graves was not represented in a procedurally fair setting and thus received ineffective
assistance of counsel.
Graves v. State , 784 N.E.2d 959, 964 (Ind. Ct. App. 2003) vacated.
The Court of Appeals largely resolved the present case by reference to
v. State, 436 N.E.2d 1087, 1088-89 (Ind. 1982), which held that to obtain
relief from a guilty plea when the record of a guilty plea hearing
is lost or destroyed, the petitioner must either reconstruct the record pursuant to
Ind. Appellate Rule 7.2(A)(3)(c) (currently Ind. Appellate Rule 31(A)), or present evidence showing
reconstruction is impossible. It also relied on Patton v. State, 537 N.E.2d
513, 519-20 (Ind. Ct. App. 1989), which held that a lawyers failure to
make these showings constituted inadequate performance and warranted relief.
Zimmerman was decided during a period when this Court routinely set aside guilty
pleas if the trial court judge failed during the plea hearing to recite
to the defendant any of the advisements required by the Code. See
Austin v. State, 468 N.E.2d 1027 (Ind. 1984); German v. State, 428 N.E.2d
234 (Ind. 1981). We overruled this approach toward plea hearings in White
v. State, 497 N.E.2d 893, 905 (Ind. 1986), holding that a petitioner needs
to plead specific facts from which a finder of fact could conclude by
a preponderance of the evidence that the trial judges failure to make a
full inquiry in accordance with § 35-35-1-2(a)
rendered his decision involuntary or unintelligent.
Unsurprisingly, the availability of these multiple opportunities tends to produce serial re-litigation (i.e.,
My trial lawyer should have done x, my appellate lawyer did a bad
job of attacking my trial lawyers handling of x, my post-conviction lawyer failed
in presenting x, etc.). As Justice Sullivan noted recently in
State, 820 N.E.2d 655, 663-64 (Ind. 2005), as this litigation progresses through successive
stages, the likelihood of finding an injustice diminishes.
During that same progression, the value of finality begins to outweigh the benefits
of mandating further review at the post-conviction stage, because [a]ny other conclusion would
suggest that each previous proceeding serves no valuable purpose and would degrade the
entire [criminal] proceeding to nothing more than a random game of chance.
Corcoran, 820 N.E.2d at 664 (quoting Anthony J. Casey, Maintaining the Integrity of
Death: An Argument for Restricting a Defendants Right to Volunteer for Execution
at Certain Stages in Capital Proceedings, 30 Am. J. Crim. L. 75, 103
This Court declared its approach to claims about performance by a post-conviction lawyer
Baum v. State, 533 N.E.2d 1200 (Ind. 1989). We observed that
neither the Sixth Amendment of the U.S. Constitution nor article 1, section 13
of the Indiana Constitution guarantee the right to counsel in post-conviction proceedings, and
explicitly declined to apply the well-known standard for trial and appellate counsel of
Strickland v. Washington, 466 U.S. 668 (1984). Baum, 533 N.E.2d at 1201.
The Baum Court noted that post-conviction pleadings are not regarded as criminal
actions and need not be conducted under the standards followed in them.
Id. We held unanimously that a claim of defective performance poses no
cognizable grounds for post-conviction relief and that to recognize such a claim would
sanction avoidance of legitimate defenses and constitute an abuse of the post-conviction remedy.
Id. at 1200-01.
We therefore adopted a standard based on principles inherent in protecting due course
of law -- one that inquires if counsel in fact appeared and represented
the petitioner in a procedurally fair setting which resulted in a judgment of
Id. at 1201. As Justice DeBruler explained later, speaking
for a majority of us, it is not a ground for post-conviction relief
that petitioners counsel in a prior post-conviction proceeding did not provide adequate legal
assistance, but such a contention could provide a prisoner with a basis for
replying to a state claim of prior adjudication or abuse of process.
Hendrix v. State, 557 N.E.2d 1012, 1014 (Ind. 1990) (DeBruler, J., concurring).
The Baum approach bears resemblance to that followed in the federal system. The habeas provisions of the U.S. Code applicable to federal prisoners recognize the availability of successive collateral proceedings but authorize the courts of appeal to permit successive proceedings only in instances of newly discovered evidence of innocence or new rules of constitutional law declared retroactive by the U.S. Supreme Court. 28 U.S.C. § 2255 (2000). See footnote Thus, the Second Circuit has held that a petitioner may obtain relief from the adjudication of his habeas petition only in the extraordinary circumstances that his lawyer abandoned the case and prevented the client from being heard, either through counsel or pro se. Harris v. United States, 367 F.3d 74, 77 (2nd Cir. 2004). See footnote Such has been the grounds for relief under Baum. Waters v. State, 574 N.E.2d 911, 912 (Ind. 1991) ([c]ounsel, in essence, abandoned his client and did not present any evidence in support of his clients claim.).
Quite obviously, this state and federal aversion to serial re-litigation focused on performance
of counsel stands on a completely different footing than a claim such as
the discovery of previously unavailable evidence of innocence. 28 U.S.C.
(2000); Ind. Post-Conviction Rule 1(1)(a)(4); Bennett v. United States, 119 F.3d 468, 468-70
(7th Cir. 1997) (previously undiscovered evidence of drugs administered during trial); Williams v.
State, 808 N.E.2d 652 (Ind. 2004)(new DNA tests).
Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., concurs in result without separate opinion.
[t]he loss of a record or transcript does not by itself require granting
post-conviction relief, or require denying post-conviction relief. Because the availability of an
original transcript is not the only factor in such determinations, our rules requiring
transcripts to be retained for a time certain were not intended to create
an implicit statute of limitations [on post-conviction relief petitions].
Id. (internal citations omitted).