ATTORNEYS FOR APPELLANT

David C. Stebbins
Columbus, Ohio

Joe Keith Lewis
Marion, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

James D. Dimitri
Deputy Attorney General
Indianapolis, Indiana

                            )
DAVID LEON WOODS,                )
                            )
    Appellant (Petitioner below),        )    Supreme Court
                            )    Cause No. 06S00-9403-PD-224
    v.                        )
                            )        
STATE OF INDIANA,                )    
                            )
    Appellee (Respondent below).        )
                            )

appeals the denial of his petition for postconviction relief challenging the effectiveness of his trial counsel. This case presents a frequently encountered issue. The trial court found that the claim of ineffective representation was waived for failure to raise the issue on direct appeal. Woods contends that the trial record was not sufficiently developed to assess the merits of this claim on direct appeal. In brief, although ineffective assistance occasionally lends itself to resolution on direct appeal, we hold that a Sixth Amendment claim of ineffective assistance of trial counsel may be presented for the first time in a petition for postconviction relief. However, if ineffective assistance of trial counsel is raised on direct appeal, it will be foreclosed in postconviction proceedings. Turning to the merits of Woods' claim, we affirm the trial court's denial of relief.

v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996), reh'g granted in part, 681 N.E.2d 181 (Ind. 1997), cert. denied, __ U.S. ___, 118 S. Ct. 1060 , 140 L. Ed. 2d 121 (1998). The postconviction court is the sole judge of the weight of the evidence and the credibility of witnesses. See, e.g., Stewart v. State, 517 N.E.2d 1230, 1231 (Ind. 1988).

direct appeal.See footnote 1 Woods also raises other grounds to support his claim of ineffective assistance.

state of the record on direct appeal requires an analysis of the diverse nature of these contentions.
    For purposes of the question presented today, issues supporting an ineffectiveness claim can be separated into three broad categories. Some can be evaluated on the face of the trial record (“record errors”). Examples are failure to tender or object to an instruction or failure to object to inadmissible evidence where the failure is outside the range of reasonable professional judgment and its prejudicial effect is clear. In those situations, there may be no need for delay or the taking of extrinsic evidence on the competence prong of Strickland because the claim may be resolved from the face of the trial record.See footnote 3 If so, the interest of prompt resolution of the matter favors permitting it to be raised on direct appeal. For example, in Pemberton v. State, 560 N.E.2d 524 (Ind. 1990), trial counsel aggressively litigated a motion to suppress that challenged the admissibility of a suggestive “show-up” identification, but inexplicably failed to object at trial to preserve the issue for appeal. In holding that this amounted to deficient performance, this Court reasoned that “[t]here is no conceivable rational basis upon which to predicate a decision not to object. This can in no way be characterized as a strategical or tactical decision gone awry.” Id. at 527. See also Allen v. State, 686 N.E.2d 760, 778 (Ind. 1997) (distinguishing Pemberton on the ground that “counsel's decision to file a motion in limine instead of a motion to suppress could well have rested on strategic reasons”), petition for cert. filed, __ U.S.L.W. ___ (U.S. Aug. 28, 1998)

(No. 98-5855). Because the omission was found to be inexcusable and prejudicial as a matter of law, the claim was resolvable on direct appeal without extrinsic evidence.
    Far more common, however, are issues that are not visible at all on the trial record, or that require additional record development to assess either the competence of the attorney or the prejudice resulting from the claimed error. These contentions may require an investigation of facts far beyond the record, and sometimes beyond the knowledge of either trial or appellate counsel, to establish substandard counsel performance (“extra-record errors”). Typical examples may be failure to pursue a factual defense of alibi or insanity or, as in this case, an undisclosed conflict of interest.
    Finally, much confusion is generated by issues that are based on an action taken on the record, but whose evaluation requires a showing to rebut the presumption of counsel competence. An example of such a “hybrid” contention is an act or omission on the record that is perhaps within the range of acceptable tactical choices counsel might have made, but in the particular instance is claimed to be made due to unacceptable ignorance of the law or some other egregious failure rising to the level of deficient attorney performance. Kimmelman v. Morrison, 477 U.S. 365, 383-87, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).See footnote 4

The requirement of a showing of the allegedly unacceptable basis for the error derives from the presumption of attorney competence.See footnote 5 Because we assume competence, if an action or omission is in the range of reasonable attorney behavior, it can support a claim of ineffective assistance only if that presumption is overcome by specific evidence as to the performance of the particular lawyer. Where no evidence of deficient representation is presented, therefore, the claim fails.See footnote 6 The reasoning of trial counsel is sometimes apparent from the trial

record.See footnote 7 However, in assessing hybrid contentions it is often necessary for an additional record to be developed to show the reason for an act or omission that appears in the trial record.See footnote 8
    For the reasons explained below, we conclude that precisely because it can take myriad forms, ineffective assistance of trial counsel “eludes once-and-for-all disposition.” Guinan v. United States, 6 F.3d 468, 473 (7th Cir. 1993) (Easterbrook, J., concurring).See footnote 9 Nonetheless, we are dealing with a subject that has the potential for both forfeiture of important constitutional protections and also enormous demands on counsel and the judiciary. Accordingly, the always important objectives of clarity and workability of rules of law take on even greater significance.

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. It is well established as a general proposition that issues that were or could have been raised on direct appeal are not available in postconviction proceedings and that postconviction is not a “super appeal.” Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind. 1993); Ind. Post-Conviction Rule 1(1)(b) (providing that postconviction is “not a substitute for a direct appeal”). Rather, postconviction review supplements direct review by allowing the petitioner “to raise issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time.” Schiro v. State, 533 N.E.2d 1201, 1204 (Ind. 1989). As this Court cautioned in one of the first cases to flesh out the postconviction rules: “It was not our intent . . . to provide a means whereby one convicted could repeatedly re-litigate claims of improper conviction, or could . . . raise an untimely challenge directed at some aspect of the proceedings against him.” Langley v. State, 256 Ind. 199, 203, 267 N.E.2d 538, 540 (1971).     Consistent with the residual nature of postconviction proceedings, we have held that failure to raise a “record” ineffectiveness claim results in waiver of the issue. For example, in Johnson v. State, 502 N.E.2d 90 (Ind. 1986), in an effort to show that the defendant was credible because he could admit past mistakes , trial counsel questioned the defendant on direct examination about problems in his childhood and delinquent behavior. The defendant contended in postconviction that this trial tactic prejudiced his assertion of self-defense by damaging his credibility. This Court held that the issue of trial counsel's effectiveness was waived because the single basis asserted was “clearly known and available” on direct appeal.

Id. at 91. Accord Hall v. State, 646 N.E.2d 379 (Ind. Ct. App. 1995) (claim of trial ineffectiveness for failure to object to allegedly defective jury instruction was waived for failure to present the issue on direct appeal). These cases, although not framing the issue in terms of what was apparent from the trial record, support the proposition that a single matter knowable from the trial record is waived if not presented on direct appeal. Cf. Daniels v. State, 680 N.E.2d 829, 835 n.10 (Ind. 1997) (issues pertaining to trial or appellate counsel's effectiveness could not be litigated in second petition for postconviction relief because, among other reasons, the alleged errors were apparent on the record from the time of trial).
    Two cases are closer to presenting the issue of whether any need for record development allows an ineffectiveness claim to be presented for the first time in collateral proceedings. Hollonquest v. State, 432 N.E.2d 37 (Ind. 1982) and Williams v. State, 464 N.E.2d 893 (Ind. 1984) both involved an ineffective assistance claim based on trial counsel's failure to call an alibi witness. Like most failures to investigate, establishing this ground for ineffective assistance would require going beyond the trial record to show what the investigation, if undertaken, would have produced. This is necessary because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1528, 140 L. Ed. 2d 678 (1998). Hollonquest and Williams held that the claim was waived, but for several reasons neither case controls the issue presented today. First, Hollonquest was decided before Strickland established the two-prong test for ineffective assistance, and Williams, though decided one month after Strickland, did not

consider the effect of Strickland. Second, and more importantly, Hollonquest and Williams were decided before courts began giving much detailed consideration to the complexity of ineffectiveness claims. Both simply applied general waiver principles to the facts in a single paragraph. Neither case discussed the potential need for an evidentiary hearing to assess either the reasons for the alleged error or the likelihood that it affected the result.See footnote 10     
    We have noted in other contexts that an ineffective assistance of counsel claim may often require evidentiary development. For example, Hough v. State, 690 N.E.2d 267 (Ind. 1997), petition for cert. filed, __ U.S.L.W. ____ (U.S. July 23, 1998) (No. 98-5826), recently observed that a grant of summary judgment on the issue of trial counsel's effectiveness without an evidentiary hearing is “a bit unusual” because “[t]ypically . . . an ineffective assistance of counsel claim revolves around the unique facts of that case and many of those facts may exist outside of the record.” Id. at 273. Indeed, some of our decisions suggest, without examining the question in any detail, that any challenge to the effectiveness of trial counsel's representation may be raised for the first time in postconviction proceedings. Lane v. State, 521 N.E.2d 947 (Ind. 1988) (ineffectiveness due to trial counsel's failure to call an alibi witness would have been available in postconviction, but defendant could not raise issue

for first time on appeal through guise of ineffective assistance of postconviction counsel). Others could be read to imply the contrary. Resnover v. State, 547 N.E.2d 814, 816 (Ind. 1989) (“Ineffective assistance of counsel as an issue is known and available to a party on his direct appeal . . . .”); Metcalf v. State, 451 N.E.2d 321 (Ind. 1983) (holding several assertions of alleged ineffectiveness to be waived without distinguishing between record-based contentions and those requiring evidentiary development).
    Most recent Court of Appeals cases have held that ineffective assistance of trial counsel is generally known and available on direct appeal so long as the defendant is represented by different counsel on appeal. See, e.g., Haynes v. State, 695 N.E.2d 148, 153 (Ind. Ct. App. 1998); Moore v. State, 649 N.E.2d 686, 690 n.2 (Ind. Ct. App. 1995). At least one intermediate appellate decision distinguished record-based assertions of ineffectiveness from those requiring extrinsic evidence and held that the latter may be raised for the first time in postconviction proceedings. Wilson v. State, 565 N.E.2d 761 (Ind. Ct. App. 1990). Finally, this Court recently held that if a claim of ineffectiveness is raised on direct appeal, it precludes raising in a postconviction proceeding additional issues to support a claim of ineffective assistance. Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997); Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind. 1997) (citing Sawyer).     
    In sum, the availability of ineffective assistance of trial counsel in postconviction proceedings where it was not asserted on direct appeal is unresolved as a matter of this Court's precedent.

assistance of trial counsel, irrespective of the nature of the contentions, can (or even must) be postponed until collateral review. Nonetheless, for the reasons set forth below, we conclude that the most satisfactory resolution of a variety of competing considerations is that ineffective assistance may be raised on direct appeal, but if it is not, it is available in postconviction proceedings irrespective of the nature of the issues claimed to support the competence or prejudice prongs.     
    A. Use it or lose it
    The State maintains that the issue of trial counsel's effectiveness is known on direct appeal and therefore waived if not presented. This view would not differentiate at all among

the various types of contentions that may support a claim of ineffective assistance of counsel. There appear to be only a few states and no federal circuits adhering to that approach, cf. note 15 infra, and with good reason. As tribunals of last (or at least not first) resort, appellate courts review the work of other courts as reflected in the record. We agree with the Tenth Circuit that in the context of assessing ineffectiveness claims, typically a “factual record must be developed in and addressed by the [trial] court in the first instance for effective review.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (footnote omitted). Where the record is incomplete, the reviewing court is poorly positioned to address the merits; nor does it have any reasonable ability to engage in factfinding or take new evidence. The State's approach might be more palatable if ineffective assistance were commonly easily resolved based on the trial record, but as already noted it often is not. Nor would a blanket ban on raising ineffective assistance of counsel in postconviction proceedings be fair to the defendant. Because of the presumption of competence, extrinsic evidence is needed in many cases:
    When the only record on which a claim of ineffective assistance is based is the trial     record, every indulgence will be given to the possibility that a seeming lapse or error     by defense counsel was in fact a tactical move, flawed only in hindsight. It is no     surprise that such claims almost always fail.

Taglia, 922 F.2d at 417-18. In addition, the rule that the State proposes appears to leave no place for ineffectiveness claims, such as counsel's undisclosed conflict of interest, not reasonably knowable until after direct appeal.
    Even under a “use it or lose it” approach, the question is not whether an evidentiary

hearing will be held in some cases, but rather what procedure is available to develop the record. We disagree with the State that allowing appellate counsel to supplement the record in a hearing on a motion to correct error is sufficient where an appellate court concludes that additional evidence is needed. First, this implicitly requires appellate counsel to investigate facts outside the record in a frequently futile effort to unearth all possible ineffective assistance claims for presentation on direct appeal. As elaborated in Part V below, expecting appellate lawyers to look outside the record for error is unreasonable in light of the realities of appellate practice. Direct appeal counsel should not be forced to become a second trial counsel. Appellate lawyers may have neither the skills nor the resources nor the time to investigate extra-record claims, much less to present them coherently and persuasively to the trial court. Requiring any claim to be raised on direct appeal under pain of waiver forces upon appellate counsel “a nasty dilemma: if he seeks reversal on the basis of ineffective assistance of trial counsel, the judgment is almost certain to be affirmed, barring the raising of the issue in collateral proceedings; if he does not, the government may contend in any collateral proceeding that he should have.” Guinan, 6 F.3d at 472.
    Second, even if extra-record investigation were a fair burden to place on appellate counsel, we see little point in forcing the claim to be squeezed into the Procrustean bed of a motion to correct error. That procedure has never been viewed as a substitute for postconviction relief. Langley v. State, 256 Ind. 199, 204, 267 N.E.2d 538, 541 (1971) (motion to correct error provides “an expeditious means by which a trial judge may have an opportunity to first correct his own errors while the circumstances surrounding the alleged

error are still fresh in his memory”). Moreover, some forms of ineffective assistance do not fit within any recognized ground for either a Trial Rule 59 or Trial Rule 60 motion. Both rules contemplate either “error” or new evidence that “with reasonable diligence, could not have been discovered and produced at trial.” Ind. Trial Rule 59(A)(1). The thrust of an ineffective assistance claim is often neither of these, but rather that trial counsel failed to present relevant evidence. To be sure, such a claim could be presented as any “other” ground under Rule 60(B)(8) (if it is within one year), but there is little reason to prefer that mode over a postconviction proceeding in the same court that can be conducted by counsel equipped to present it independent of any errors alleged on direct appeal.See footnote 13 Even if these procedures were a good fit for review of ineffective assistance claims, any attempt to adjudicate the adequacy of trial representation in a motion to correct error creates yet another round of litigation -- with further expense and delay -- between the trial and postconviction proceeding.
    A “use it or lose it” rule has other undesirable consequences. A state-court finding of procedural default generally precludes review of the merits of the claim in federal collateral proceedings. See footnote 14 Thus if an ineffectiveness claim is waived if not presented on direct

appeal, it may never be addressed on the merits by any court. The narrowing of federal habeas review since the 1970s reflects increasing deference to state courts in adjudication of federal constitutional claims arising out of state criminal trials:
    The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility of vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.

Engle v. Isaac, 456 U.S. 107, 128, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982) (citation omitted). Hence as a matter of procedural fairness a finding of waiver by an Indiana court must be predicated on a meaningful opportunity to litigate the claim. Alternatively, if an ineffectiveness claim found to be waived in our courts is nonetheless addressed on the merits in federal court, this State will have foregone the opportunity to correct the possible error before federal review of our judicial process. One goal of our postconviction rules is to minimize the level of federal constitutional error before federal review of the conviction: “[O]ne of the functions of our post conviction remedy rules is to preserve what sanctity remains to this [S]tate's disposition of a criminal charge by allowing a convicted criminal defendant ample opportunity to present claims for relief in the courts of this state before resort must be had to the federal courts.” Langley, 256 Ind. at 204, 267 N.E.2d at 541. An unnecessarily or unfairly restrictive waiver rule would frustrate this purpose.See footnote 15     

issue of material fact. Ind. Post-Conviction Rule 1(4)(g); Daniels v. State, 680 N.E.2d 829, 831-32 (Ind. 1997).
    B. Defer all or only some claims
    Some courts resolve these varying considerations by holding that a claim of ineffective assistance of trial counsel is waived if withheld until the collateral stage unless the petitioner has a “valid reason” for the postponement. Under this view, good cause for waiting can be shown by any one of either (1) trial counsel was also appellate counsel; (2) the claim could not be developed without new facts; or (3) at the time of the direct appeal, it reasonably appeared that new evidence would be needed, even though it has since become clear that the trial record was adequate grounds for judging the merits of the claim. Guinan, 6 F.3d at 472.See footnote 16
    We have recognized the first of these. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995); cf. Matter of Sexson, 666 N.E.2d 402 (Ind. 1996) (trial counsel violated Indiana Rule of Professional Conduct 1.7(b) by arguing own ineffectiveness on direct appeal). The second and third grounds of this approach are theoretically sound, but ultimately in our view generate more complexity and unpredictability than is desirable. In application this approach raises the thorny problem of identifying the ineffectiveness claims that are available on direct review. There are bound to be complications and uncertainty in determining whether

extrinsic evidence reasonably appeared to be needed at the time of direct appeal to assess the merits of the claim. The postconviction court will have to undertake the difficult task of seeing the case through appellate counsel's eyes, possibly long after the direct appeal was decided. The potential exists for efforts of both counsel and courts to be wasted on both direct appeal and collateral review in satellite litigation over the application of a complicated waiver standard.See footnote 17 Permitting all claims of ineffectiveness to be raised in postconviction proceedings if ineffectiveness was not raised on direct appeal offers a bright-line rule that is understandable. It is preferable over requiring ineffectiveness to be raised on direct appeal because the track record for ineffectiveness claims demonstrates that most require additional evidence to assess their merits. Cf. Guinan, 6 F.3d at 473 (Easterbrook, J., concurring) (“No surprise, then, that my colleagues have been unable to find a single case in which this circuit reversed a conviction on direct appeal because of deficient performance by trial counsel.”). Finally, and more importantly, assessment of a claim of ineffective representation requires consideration of the overall performance of counsel and a reasonable probability that the alleged error affected the outcome. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1528, 140 L. Ed. 2d 678 (1998). Because these factors rarely lend themselves to resolution in isolation, the effectiveness of the representation

should be resolved in a single proceeding.See footnote 18
    For the reasons outlined, a postconviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim. We nonetheless agree that potential for administrative inconvenience does not always outweigh the costs of putting off until tomorrow what can be done today: “If there is no reason for delay in presenting a claim, the delay should not be countenanced, for there is a considerable social interest in the finality of criminal proceedings.” Taglia, 922 F.2d at 418. If we are dealing with an improperly incarcerated defendant, the cause of justice is plainly better served by making that determination as soon as possible. The same is true even if a retrial is required. Resolving record-based ineffectiveness claims on direct review also has some doctrinal appeal because it is more consistent with the residual purpose of postconviction proceedings. Langley, 256 Ind. at 204-05, 267 N.E.2d at 541 (“[T]he permissible scope of review on direct appeal is well defined and broader than that permitted by collateral attack through post conviction relief.”). These considerations can be largely met under a procedure that allows a defendant to suspend the direct appeal to pursue an immediate petition for postconviction relief. Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977); see also Hatton v. State, 626 N.E.2d 442 (Ind. 1993) (reiterating vitality of Davis procedure). This should cover the exceptional case

in which the defendant prefers to adjudicate a claim of ineffective assistance before direct appeal remedies have been exhausted. Because of the Davis procedure, the direct appeal is not necessarily an obstacle to speedy adjudication of the adequacy of the representation, as recent cases in which the procedure was invoked for that purpose demonstrate. See Coleman v. State, 694 N.E.2d 269 (Ind. 1998); Brown v. State, 691 N.E.2d 438 (Ind. 1998). Although not to be used as a routine matter in adjudicating the issue of trial counsel's effectiveness,See footnote 19 a Davis request may be appropriate “where the claim asserted arguably requires a certain level of fact finding not suitable for an appellate court.” Lee v. State, 694 N.E.2d 719, 721 n.6 (Ind. 1998), petition for cert. filed, __ U.S.L.W. ____ (U.S. Sept. 24, 1998) (No. 98- 6205).     
    C. All or nothing
    As already noted, some grounds supporting an assertion of inadequate representation will not be reasonably knowable, much less fully factually developed, until after direct appeal. For the reasons given, the doors of postconviction must be open to adjudicate ineffective assistance if it is not raised on direct appeal. The defendant must decide the forum for adjudication of the issue -- direct appeal or collateral review. The specific contentions supporting the claim, however, may not be divided between the two proceedings. The administrative disadvantages to an approach that would require the defendant essentially

to split an ineffectiveness claim between record-based and other contentions also apply to voluntary bifurcation. We note again that we recently held that ineffective assistance of trial counsel is not available in postconviction if the direct appeal raises any claim of deprivation of Sixth Amendment right to counsel. Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997); Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind. 1997) (citing Sawyer); but cf. Galloway, 56 F.3d at 1242 (holding that presentation of ineffectiveness claim on direct appeal did not foreclose assertion in federal habeas proceedings of additional grounds for finding inadequate representation). As a practical matter, this rule will likely deter all but the most confident appellants from asserting any claim of ineffectiveness on direct appeal. It will certainly deter some. Nonetheless, the concerns for prompt resolution of claims lead us to permit ineffective assistance to be raised within or without the procedure available pursuant to Davis.
    In sum, we hold that a Sixth Amendment claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in postconviction proceedings. However, if ineffective assistance of trial counsel is raised on direct appeal by a Davis petition or otherwise, the issue will be foreclosed from collateral review.
        

raise trial counsel's effectiveness on direct appeal, the substance of the claim is addressed in either event.See footnote 20 However, for at least two reasons, the right to challenge appellate counsel's performance is not equivalent to a direct challenge to trial counsel's representation.     First, ineffective assistance of appellate counsel requires the petitioner to overcome the double presumption of attorney competence at both trial and appellate levels. This is no mere quibble. Appellate lawyers must make difficult judgment calls in narrowing a broad range of possible claims to a select few that are thought to have the best chance of success. In this winnowing process, possibly valid claims may be eliminated due to page limits, time limits on oral argument, or the strategic judgment that the perceived strongest contentions not be diluted. Accordingly, there are situations in which a claim of ineffective assistance of trial counsel will succeed on the merits but fail if forced to overcome the presumption of effective appellate counsel. See Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (United States Constitution does not require appellate counsel to argue all nonfrivolous claims; appellate counsel noted possible claim of ineffective assistance of trial counsel but declined to raise the issue). Indeed, we recently emphasized that reviewing courts “should be particularly deferential to counsel's strategic decision to exclude certain

issues in favor of others” and “particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy[.]” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997). Other courts have made similar observations. See, e.g., Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989) (“The threshold question is not whether trial counsel was inadequate but whether trial counsel was so obviously inadequate that appellate counsel had to present that question to render adequate assistance.”).See footnote 21
    Second, in elaborating the right to effective assistance of appellate counsel, the Supreme Court of the United States has never suggested that counsel must look outside the record for possible claims of error for the performance to be constitutionally effective.See footnote 22 To

the contrary, courts adjudicating appellate ineffectiveness claims have rejected imposing this burden on appellate counsel. See, e.g., Kitt v. Clarke, 931 F.2d 1246, 1249-50 (8th Cir. 1991) (“Given that the jury separation issue was not preserved in the record, appellate counsel's failure to raise the issue cannot be considered deficient performance.”); Wilson v. State, 565 N.E.2d 761, 764 (Ind. Ct. App. 1990) (where appellate counsel did not investigate trial counsel's effectiveness other than by thoroughly reviewing the record, appellate counsel acted consistent with “accepted practice then prevailing”). This Court has also resisted that view. See Bieghler, 690 N.E.2d at 199-200 (appellate counsel's failure to raise issues not apparent on the face of the record, in light of overall performance, was not grounds for reversal). Cf. Gray v. Greer, 800 F.2d 644, 647 (7th Cir. 1986) (“When a claim of ineffective assistance of counsel is based on failure to raise issues on appeal, we note it is the exceptional case that could not be resolved on an examination of the record alone.”). Because there is no constitutional requirement for appellate counsel to search outside the record for error, an ineffective assistance of appellate counsel claim that is in substance a trial counsel claim requiring extrinsic evidence may be dead on arrival.
    In short, a claim of ineffective assistance of appellate counsel is not an adequate back door to a full adjudication of ineffectiveness of trial counsel.

trial counsel had an actual conflict of interest and that the conflict adversely affected counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (discussing Cuyler). Once the two prongs of Cuyler are met -- actual conflict and adverse impact -- prejudice is presumed. Burger v. Kemp, 483 U.S. 776, 783, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). An adverse effect on performance caused by counsel's failure to act requires a showing of (1) a plausible strategy or tactic that was not followed but might have been pursued; and (2) an inconsistency between that strategy or tactic and counsel's other loyalties, or that the alternate strategy or tactic was not undertaken due to the conflict. Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993) (adopting test followed by First and Third Circuits). See also Cates v. Superintendent, Indiana Youth Center, 981 F.2d 949, 955 (7th Cir. 1992) (“The premise of a defendant's claim that he was denied conflict-free assistance . . . must be that his lawyer would have done something differently if there was no conflict.”). See footnote 24
    The State asserts that Rhetts' predicament did not rise to the level of an “actual”

conflict because he never questioned Woods' mother under oath. Indeed, Rhetts explained in postconviction that he was aware of the possibility of the conflict months before he withdrew, but did nothing because he believed the conflict would not be a problem until trial approached. Whether the conflict was “potential” or “actual” is academic because, even assuming an actual conflict,See footnote 25 Woods has not established an adverse effect on his counsel's performance. First, he has not explained what the State could have learned at the meeting in which Rhetts asked to withdraw that so upset the possibility of a fair trial. Rhetts disclosed no details of the prior representation. Second, contrary to Woods' contention, Rhetts did not sit idle for the six months that he was on the case. Although he had not prepared for a possible penalty phase, he investigated Woods' sanity and competency to stand trial, filed a standard discovery request, and secured a change of venue due to adverse pretrial publicity arising out of the trial of co-defendant Greg Sloan. While not perfect representation in a capital case, at the pretrial stages this is not the stuff of adversely affected performance. Cf. Thompkins v. State, 482 N.E.2d 710, 713 (Ind. 1985) (counsel's representation was not adversely affected where he conducted thorough discovery and filed

numerous motions and objections on defendant's behalf).     
    Third, and not surprisingly, Woods fails to direct our attention to evidence supporting his assertion that the conflict tainted the rest of the proceedings. There is no claim that the new lawyers had a conflict and Woods has not explained how Wharry and Johnston would have handled the case differently if they had been told of or discovered Rhetts' conflict. Any information Rhetts possessed about the mother was presumably privileged. Even if Rhetts' prior representation of the mother precluded him from fully probing her possible involvement in the crime, as Woods contends, Wharry and Johnston deposed her on that subject and had adequate opportunity to investigate that issue. More generally, the trial court granted the new lawyers' request for a continuance to give them more time to prepare, and this Court held on direct appeal that the failure to grant additional continuances was not error: “There is no basis in the record upon which to conclude that additional time for preparation and consultation would have better equipped defense counsel to represent their client.” Woods, 547 N.E.2d at 788. Thus we cannot accept that the conflict structurally infected the rest of the proceedings.
    Woods would have us overlook the fact that Rhetts withdrew nearly four months before trial. This is a critical point. Because successor counsel Wharry and Johnston planned and executed their defense strategy after their own discovery, pretrial motions, and consultations with Woods, any claim that Rhetts' inaction likely affected their performance -- or, for that matter, the fairness of the trial -- requires more than a bald allegation. Woods in effect asks us to presume ineffectiveness and an unfair trial where initial trial counsel

withdraws due to a conflict. There is no such presumption. Accordingly, his claim that he was denied effective assistance due to Rhetts' prior representation of his mother fails.

more respects.See footnote 26 Woods nonetheless must show a reasonable probability of a different result but for the alleged errors. The postconviction court found in detailed findings that Woods had not shown prejudice. There is no need to repeat these findings here. It suffices to say that Woods makes no colorable claim that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion as to the required showing of prejudice. For that reason alone, we affirm the denial of postconviction relief. Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind. 1995).
    The individual incidents of allegedly deficient performance are too numerous to list or even summarize here. The brief filed on behalf of Woods deals with nearly every action or inaction by trial counsel, but makes no effort to establish prejudice from the supposed errors. At one point, Woods even suggests that proof of prejudice is not required and refers to the postconviction court's finding that no prejudice was shown on a particular point as the “incorrect legal standard” to apply in determining whether the Sixth Amendment was violated. Woods, not the postconviction court, is incorrect on that point. We are aware that the “duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” Burger v. Kemp, 483 U.S. 776, 785, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). Nonetheless, Woods' failure to point to anything contradicting the postconviction court's finding of lack of prejudice permits an uncomplicated disposition of

the rest of the appeal notwithstanding the serious nature of the proceedings.
    Because this is a death penalty case, and for that reason only, we briefly address the ineffectiveness claims, roughly in the order that they are presented but with some consolidation due to redundant argument. Woods first alleges a variety of areas of possible investigation that were not but might have been pursued. The postconviction court found no prejudice from any of these and no serious contention is made attacking that finding.     Although several challenges related to jury selection were preserved and rejected on direct appeal, Woods, 547 N.E.2d at 785-86, 791, Woods argues that counsel's handling of voir dire fell below prevailing professional norms. The objections to counsel's performance in voir dire include fifteen shortcomings identified by Woods' expert on death penalty defense standards in the postconviction court. Woods concludes his discussion of this list by complaining that the postconviction court “failed to explore the issues of whether any jurors actually were seated who should not have been.” He fails to explore that subject in this appeal and for that reason presents no claim for reversal.
    Woods next attacks the content of counsel's opening and closing arguments at the guilt phase, as well as other tactical trial decisions (e.g., failure to cross-examine witnesses or object to evidence, and failure to argue theories such as sudden heat that were supposedly more consistent with the mitigation evidence). Woods seeks to avoid the obvious point that classic tactical choices of this sort hardly ever support a claim of ineffective assistance because they are matters of trial strategy, Douglas v. State, 663 N.E.2d 1153 (Ind. 1996), by contending that counsel's performance was so uninformed that no presumption of strategic

decision should attach. However, Woods has not elaborated how any alternative argument or tactic would possibly, much less reasonably probably, have changed the outcome. T rial counsel Johnston testified in postconviction that “we honestly felt we had a very difficult case. It was very difficult to win on the guilt phase.” Woods concedes in this appeal that there was “overwhelming evidence of his participation in the crime.” In light of the powerful evidence of guilt -- including a confession held on direct appeal to have been properly admitted, Woods, 547 N.E.2d at 786-87 -- we cannot say that the convictions were a fundamentally unfair or unreliable result. Fretwell, 506 U.S. at 369.     
    Woods next points to numerous alleged omissions at the penalty phase, including failure to give an opening statement or call Woods to the stand, failure to assemble and present a complete social or life history of Woods for mitigation purposes, and failure to make an effective presentation of the mitigation evidence that was gathered. The argument (not unfamiliar in postconviction) boils down to (1) counsel should have done more; and (2) counsel was ineffective with respect to what little was done. Neither contention withstands scrutiny here. As noted, counsel's choices related to opening or closing argument -- and, for that matter, the decision whether the defendant should testify -- are strategic calls that will rarely support a Sixth Amendment violation. Indeed, counsel Johnston testified in postconviction that he feared Woods would be “beat up” by the prosecutor if he took the stand.
    With respect to the mitigation evidence, the postconviction court found that the evidence offered at the postconviction hearing was cumulative of the evidence presented at

trial. Woods' contention to the contrary is wholly conclusory; and he concedes that at least some of this evidence was duplicative. In any event, Woods has not explained what any witness would have said, or any investigation would have uncovered, that might have led to a different sentence. He focuses on postconviction testimony illustrating difficulties in his upbringing, particularly related to his abusive mother. These arguments were not only made at trial but credited: on direct appeal we agreed with the trial court's determination that Woods' “turbulent childhood” was a “significant mitigating circumstance.” Woods, 547 N.E.2d at 782. Thus, even assuming the postconviction evidence on this point was not cumulative, prejudice has not been proved because Woods' surroundings were accepted as a mitigating factor at sentencing without the postconviction testimony. See also Hough v. State, 690 N.E.2d 267, 272 (Ind. 1997) (prejudice was not established because defendant's personality disorder and abusive family background were not necessarily entitled to mitigating weight), petition for cert. filed, __ U.S.L.W. ____ (U.S. July 23, 1998) (No. 98- 5826).See footnote 27     
    The next contention is that the postconviction court erred in summarily dismissing

several claims alleging that “numerous procedural, constitutional and instructional issues” not litigated either at trial or on direct appeal supported a finding of ineffective assistance of counsel. In the eight pages devoted to this argument, nowhere does Woods explain what these “issues” are. Rather, he incorporates the claims by reference by listing the relevant postconviction court findings on these “issues” in a footnote. It is apparent from the findings that some of the arguments -- such as allegedly deficient handling of voir dire -- duplicate Woods' other claims. Others (e.g., prosecutorial misconduct) were resolved against Woods on direct appeal. For each argument, the postconviction court found that Woods offered no evidence or authority to support his contention or failed to show a reasonable probability of a different result but for the error. Because Woods points to nothing in the record showing these findings to be clearly erroneous, this presents no basis for reversal.
    Woods' remaining ineffectiveness claims are miscellaneous in nature and, because they are meritless, amenable to summary disposition. Woods raises a laundry list of undeveloped challenges to the jury instructions. It is difficult to determine whether these claims allege ineffective assistance for failure to object to or proffer a particular instruction, or are direct (and thus untimely) challenges to rulings at trial on instructing the jury. These arguments, if not defaulted for failure to raise them as free standing claims on direct appeal,See footnote 28 are waived for lack of cogency and failure to cite to the record. Armstead v. State, 538

N.E.2d 943, 945 (Ind. 1989). Finally, Woods contends that the postconviction court erred in finding certain claims to be res judicata because they were or could have been raised on direct appeal. Woods maintains that his petition for postconviction relief asked that these issues be addressed as both free standing claims and ineffective assistance for failure to raise each issue on direct appeal; therefore the finding of procedural default was error. This assertion presents no basis for reversal.See footnote 29

     SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.

the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. . . . [A]n accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal.

Id. at 378. At least one federal circuit drew from Kimmelman the proposition that ineffective assistance of trial counsel can be put off until postconviction proceedings. English v. Cody, 146 F.3d 1257 (10th Cir. 1998) (discussing the matter in the context of whether challenges to trial counsel's effectiveness were barred in federal habeas proceedings for failure to raise the claim on direct appeal in state court). Others have relied on a confession of error in Billy-Eko v. United States, 509 U.S. 901, 113 S. Ct. 2989, 125 L. Ed. 2d 685 (1993), where the Solicitor General took the position that federal criminal defendants should not be required to assert ineffective assistance of trial counsel on direct appeal. See, e.g., United States v. DeRewal, 10 F.3d 100, 103-05 (3d Cir. 1993) (quoting Solicitor General's brief in Billy-Eko and holding that a showing of “cause and prejudice” was not required to raise issue of trial counsel's effectiveness in collateral proceedings); cf. Guinan, 6 F.3d at 475 (Easterbrook, J., concurring) (also citing Billy-Eko confession of error in arguing for bright-line rule that ineffective assistance need not be raised on direct appeal). The United States advanced a similar view in prior administrations. United States v. Cronic, 466 U.S. 648, 667 n.42, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (noting but not addressing merits of government's argument that “a defendant can attack the actual performance of trial counsel only through a petition for postconviction relief”). Federal precedent is collected in a number of secondary sources. See generally Twenty-Seventh Annual Review of Criminal Procedure: Right to Counsel, 86 Geo. L.J. 1593, 1612-13 & n.1659 (1998); Twenty-Seventh Annual Review of Criminal Procedure: Habeas Relief for Federal Prisoners, 86 Geo. L.J. 1938, 1945 & n.2904 (1998); Larry W. Yackle, Postconviction Remedies § 108 (1981 & Supp. 1998).

L. Ed. 2d 991 (1997) (discussing Coleman and other cases on procedural default in federal habeas proceedings).

postconviction procedures has been taking place since 1994. Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994) held that Oklahoma's rule that ineffectiveness claims are generally waived if not presented on direct appeal was not an “adequate” state ground that precluded federal habeas review because it deprived the petitioner of “any meaningful review of his ineffective assistance claim.” Id. at 1364. Brecheen concluded that Oklahoma's waiver rule was a “Hobson's choice” that forced the petitioner to raise the claim on direct appeal under threat of forfeiture but without the benefit of additional (and possibly essential) factfinding. Id. A number of Tenth Circuit decisions followed Brecheen and refused to find a claim of ineffective assistance to be procedurally barred. See, e.g., Nguyen v. Reynolds, 131 F.3d 1340, 1347 n.3 (10th Cir. 1997), cert. denied, ___ U.S. ___, 119 S. Ct. 128, 67 U.S.L.W. 3233 (1998). Advancing arguments similar to the State's contentions here, the Oklahoma Court of Criminal Appeals responded to Brecheen by defending Oklahoma's waiver rule. Berget v. State, 907 P.2d 1078 (Okla. Crim. App. 1995). Among other things, Berget emphasized that procedures were available on direct appeal for remand for an evidentiary hearing where record development was required to evaluate the claim. Id. at 1084-85. In a recent reply to Berget, the Tenth Circuit expressed doubt that these procedures cured the concerns that drove Brecheen, but left open the possibility that an Oklahoma court's finding of waiver for failure to raise ineffective assistance on direct appeal could constitute an “adequate” state ground for purposes of federal procedural default. English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998). The Tenth Circuit has reached similar conclusions with respect to Wyoming's postconviction procedures. Osborn v. Shillinger, 861 F.2d 612, 622-23 (10th Cir. 1988) (ineffectiveness claim was available in federal habeas proceedings because it depended on facts outside the record and trial counsel acted as appellate counsel). Wyoming's approach resembles Oklahoma's and the State's proposed rule here. See Calene v. State, 846 P.2d 679 (Wyo. 1993). The parties do not contend in this case that Indiana's rules of procedural default present any similar concerns as to reasonable opportunity to present the claim in state court.

issues, a fortiori counsel can limit claims of error to those supported by the record and satisfy the defendant's right to effective appellate counsel. See also id. at 91 (Rehnquist, C.J., dissenting) (agreeing with the majority that “the filing of an Anders brief creates strong presumption that counsel has diligently worked on the case”).

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