      MEMORANDUM DECISION
                                                                        Oct 08 2015, 9:58 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT, PRO SE                                         ATTORNEYS FOR APPELLEE
      Khalid M. Jackson-Bey                                     Gregory F. Zoeller
      Indiana State Prison                                      Attorney General of Indiana
      Michigan City, Indiana
                                                                Karl M. Scharnberg
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Khalid M. Jackson-Bey,                                    October 8, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                45A03-1311-PC-506
              v.                                                Appeal from the Lake Superior
                                                                Court

      State of Indiana,                                         Trial Court Cause No.
                                                                45G04-1103-PC-1
      Appellee-Respondent.
                                                                The Honorable Thomas P.
                                                                Stefaniak, Judge
                                                                The Honorable Natalie Bokota,
                                                                Magistrate




      Pyle, Judge.

[1]   Khalid M. Jackson-Bey (“Jackson-Bey”), pro se, appeals the denial of his

      petition for post-conviction relief regarding his convictions for murder and

      Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015     Page 1 of 9
      robbery. In his petition, he claimed that he received ineffective assistance of

      trial counsel because his attorney: (1) did not object during the State’s opening

      statement; (2) waived opening statement; and (3) failed to interview or depose

      the State’s witnesses. He also claimed that the State committed prosecutorial

      misconduct by using perjured testimony to secure his conviction. Concluding

      that Jackson-Bey’s trial counsel was not ineffective and that Jackson-Bey’s

      claim of prosecutorial misconduct was not a cognizable issue for post-

      conviction relief proceedings, we affirm the denial of his petition.


[2]   We affirm.


                                                      Issue
              Whether the post-conviction court erred in denying Jackson-
              Bey’s petition for post-conviction relief.

                                                     Facts
[3]   The underlying facts of Jackson-Bey’s crimes were set forth in the opinion from

      his direct appeal as follows:

[4]           On November 16, 2007, Anthony Rias, Jr., Jamal Hillsman,
              Edgar Covington, Jermaine Hammonds, and Mrtyrone Metcalf
              visited with Jackson-Bey and his brother, Haneef, at the Jackson-
              Bey home. Rias asked the Jackson-Bey brothers and Metcalf if
              the wanted to “do a lick” (in street terms, commit a robbery).
              (Tr. 311)[.] The group of young men, excluding Haneef, left in
              Hillsman’s blue Ford Explorer. Jackson-Bey was armed with a
              small silver gun. They picked up Jamil Pirant, and Rias and
              Jackson-Bey explained to him “about the lick.” (Tr. 314)[.]
              Metcalf inquired whether Pirant had a pistol; at first Pirant


      Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015   Page 2 of 9
        jokingly replied that he had left it behind but then assured
        Metcalf that he had the pistol.
        The group proceeded to a White Castle, where Rias procured a
        loaner vehicle (a white Ford Explorer) from one of his friends.
        Rias, Metcalf, Pirant, and Jackson-Bey drove off in the white
        Explorer, with Hillsman, Covington, and Hammonds following
        in the blue Explorer. Rias, who had been driving the white
        Explorer, stopped the vehicle in an alley. The three occupants of
        his vehicle went to the apartment of Dominique Keesee. The
        blue Explorer was parked nearby.
        Keesee answered his door, and Jackson-Bey advised that he
        wanted to buy marijuana. Keesee agreed to the sale and went to
        get the marijuana; Metcalf and Pirant forced their way into the
        apartment. Jackson-Bey followed. Outside, Covington heard
        gunshots. Hammond exited the blue Explorer and began to run.
        Rias drove up to Hillsman’s vehicle and directed him to follow so
        that the white Explorer could be hidden. Once the white
        Explorer was parked, Rias got into Hillsman’s blue Explorer and
        they proceeded to the alley by Keesee’s apartment. Jackson-Bey,
        Metcalf, and Pirant came running up to the vehicle with bags in
        hand.
        With Hillsman, Rias, Jackson-Bey, Metcalf, Pirant, and
        Covington present, there was some discussion of the events that
        had transpired. Rias asked Jackson-Bey “is it done” and
        Jackson-Bey replied, “it is done.” (Tr. 536.) Jackson-Bey
        indicated that Metcalf had shot Keesee in the chest and further
        stated, “We come to kill him.” (Tr. 538.)
        Dionne Austin found Keesee in his apartment, suffering from
        gunshot wounds to the head and chest. He had been shot
        approximately fifteen times[] from two .22 caliber weapons.
        Medical assistance to Keesee proved futile and he died.
        Meanwhile, Rias and Hillsman returned the white Explorer to its
        owner and Covington, Jackson-Bey, Metcalf and Pirant went
        back to the Jackson-Bey house. Haneef divided up the marijuana



Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015   Page 3 of 9
              and some of the young men began to play a video game that had
              been stolen from Keesee.
              Several months later, Jackson-Bey’s attorney advised the Lake
              County Sheriff’s Department that Jackson-Bey had information
              about Keesee’s murder. Jackson-Bey gave a statement indicating
              that Rias and Hillsman were the “shooters” that had killed
              Keesee. (State’s Ex. 64a, pg. 3.) Subsequently, Jackson-Bey
              gave a statement identifying Metcalf and Pirant as the shooters.
              Ultimately, Jackson-Bey, Metcalf, and Rias were charged with
              Keesee’s murder.


      Jackson-Bey v. State, No. 45A03-0908-CR-365, slip op. at 1 (Ind. Ct. App. March

      15, 2010). A jury found Jackson-Bey guilty of murder and robbery, and he was

      sentenced to a total of sixty-five (65) years in prison. He appealed his

      convictions, claiming that the trial court committed fundamental error in

      instructing the jury, that insufficient evidence supported his conviction, and that

      his sentence was inappropriate. We found no errors and affirmed his

      conviction.


[5]   On March 4, 2011, Jackson-Bey filed a pro se petition for post-conviction relief,

      claiming that he received ineffective assistance of trial counsel and alleging

      prosecutorial misconduct against the State. The post-conviction court began an

      evidentiary hearing on December 19, 2012, and, after a continuance, concluded

      the hearing on March 15, 2013. Jackson-Bey’s trial counsel, Noah Holcomb

      (“Attorney Holcomb”), testified about representing him during his murder trial.

      Specifically, he testified about not giving an opening statement and not

      deposing the State’s witnesses.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015   Page 4 of 9
[6]   As to waiving opening statement, Holcomb testified that, “from [his] standpoint

      [and] his evaluation of the State’s evidence, [if] it’s going to be fairly strong

      against my client, I will not give an opening statement.” (Tr. 37). In response

      to a hypothetical posed by Jackson-Bey, Holcomb explained that if the State

      mentioned certain evidence in opening statement and failed to introduce that

      evidence, he would take advantage of it in closing arguments rather than

      making an objection. As to depositions, Holcomb testified that the extent of

      discovery provided by the State dictated the need for depositions. He also

      stated that he cautions his clients on taking depositions of civilian witnesses

      because of the State’s ability to use those depositions if the witness later

      becomes unavailable to testify at trial.


[7]   Finally, Jackson-Bey alleged that the State committed prosecutorial misconduct

      by using perjured testimony. In an attempt to point out inconsistencies in a

      witness’s testimony, Jackson-Bey attempted to support this allegation by

      admitting portions of the transcript from his co-defendant’s trial, which took

      place after his. The post-conviction court entered its findings of fact and

      conclusions thereon denying Jackson-Bey’s petition for post-conviction relief.

      He now appeals the denial of his petition.


                                                  Decision
[8]   Jackson-Bey appeals the post-conviction court’s order denying post-conviction

      relief on his claims of prosecutorial misconduct and ineffective assistance of

      trial counsel.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015   Page 5 of 9
[9]            We observe that post-conviction proceedings do not grant a
               petitioner a “super-appeal” but are limited to those issues
               available under the Indiana Post-Conviction Rules. Post-
               conviction proceedings are civil in nature, and petitioners bear
               the burden of proving their grounds for relief by a preponderance
               of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
               who appeals the denial of PCR faces a rigorous standard of
               review, as the reviewing court may consider only the evidence
               and the reasonable inferences supporting the judgment of the
               post-conviction court. The appellate court must accept the post-
               conviction court’s findings of fact and may reverse only if the
               findings are clearly erroneous. If a PCR petitioner was denied
               relief, he or she must show that the evidence as a whole leads
               unerringly and unmistakably to an opposite conclusion than that
               reached by the post-conviction court.


       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations

       omitted), trans. denied.


[10]   At the outset, we note that while the post-conviction court addressed the merits

       of Jackson-Bey’s claim of prosecutorial misconduct, that argument is not

       appropriate for post-conviction relief proceedings. Post-conviction proceedings

       do not provide a petitioner with an opportunity to present freestanding claims

       that contend the original trial court committed error. Wrinkles v. State, 749

       N.E.2d 1179, 1187 n. 3 (Ind. 2001). “In post-conviction proceedings,

       complaints that something went awry at trial are generally cognizable only

       when they show deprivation of the right to effective counsel or issues

       demonstrably unavailable at the time of trial or direct appeal.” Sanders v. State,

       765 N.E.2d 591, 592 (Ind. 2002).


       Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015   Page 6 of 9
[11]   The alleged perjured testimony took place during the trial of one of Jackson-

       Bey’s co-defendants, which occurred after Jackson-Bey had been convicted and

       before he filed his appellate brief. He makes no argument that this claim was

       unavailable to him on direct appeal. Accordingly, Jackson-Bey’s prosecutorial

       misconduct claim is a freestanding claim of error at trial that is not cognizable

       during post-conviction proceedings. See, e.g., Myers v. State, 33 N.E.3d 1077,

       1115-16 (Ind. Ct. App. 2015) (claim of prosecutorial misconduct failed where

       raised for the first time in post-conviction proceedings instead of direct appeal),

       trans. denied. Thus, we turn to Jackson-Bey’s claims of ineffective assistance of

       trial counsel.


[12]   A claim of ineffective assistance of trial counsel requires a showing that: (1)

       counsel’s performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

       probability that, but for counsel’s unprofessional errors, the result of the

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind .2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), reh’g

       denied, cert. denied. “Failure to satisfy either of the two prongs will cause the

       claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012)

       (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans. denied. Most

       ineffective assistance of counsel claims can be resolved by a prejudice inquiry

       alone. French, 778 N.E.2d at 824.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015   Page 7 of 9
[13]   Jackson-Bey first claims that his trial counsel was ineffective because he did not

       interview or take depositions of the State’s witnesses. Our supreme court has

       clearly stated, “counsel’s failure to interview or depose State’s witnesses does

       not, standing alone, show deficient performance.” Williams v. State, 724 N.E.2d

       1070, 1076 (Ind. 2000). “The question is what additional information may

       have been gained from further investigation and how the absence of that

       information prejudiced his case.” Id.


[14]   Here, Jackson-Bey makes general allegations of what Attorney Holcomb could

       have done with depositions, but he points to no specific information that

       depositions would have revealed. Without specific information, there is no way

       to tell what information would have been discovered that would have affected

       the result of his trial. Accordingly, he has shown no prejudice in Attorney

       Holcomb’s decision not to depose witnesses. See, e.g., id.


[15]   Jackson-Bey’s remaining claims of ineffective assistance of trial counsel revolve

       around opening statements. He claims Attorney Holcomb was ineffective

       because he did not object during the State’s opening statement and because he

       did not give an opening statement on Jackson-Bey’s behalf.


[16]   Before a defendant can show that his counsel’s failure to object constitutes

       deficient performance, the defendant must be able to show that the objection

       would have been sustained. Whitener v. State, 696 N.E.2d 40, 44 (Ind. 1998)

       (citing Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997)). Jackson-Bey’s claim

       here fails because he does not direct our attention to anything in the State’s


       Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015   Page 8 of 9
       opening statement that was objectionable. Again, Jackson-Bey makes general

       claims about what happened but points to nothing specific in the record.

       Specifically, he merely asserts that the State introduced unproven facts and

       misled the jury during its opening statement. Despite the fact that everything is

       unproven during an opening statement, we cannot assess his claim without a

       specific reference to what might have been objectionable. As a result, we find

       that Attorney Holcomb did not render ineffective assistance of counsel when he

       failed to object.


[17]   As to Jackson-Bey’s remaining complaint about opening statements, our

       supreme court has spoken clearly and succinctly on the matter: “[t]he decision

       not to make an opening statement is a matter of trial strategy and will not

       support an ineffective assistance claim.” Douglas v. State, 663 N.E.2d 1153,

       1155 (Ind. 1996).


[18]   Finding that Jackson-Bey has not shown that the post-conviction court’s

       decision was clearly erroneous, we affirm its order denying Jackson-Bey’s

       petition for post-conviction relief.


[19]   Affirmed.


       Crone, J., and Brown, J., concur.




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