        MEMORANDUM DECISION

        Pursuant to Ind. Appellate Rule 65(D),
        this Memorandum Decision shall not be                          Oct 14 2015, 9:01 am
        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
        Michigan City, Indiana                                   Attorney General of Indiana
                                                                 Cynthia L. Ploughe
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                   IN THE
            COURT OF APPEALS OF INDIANA

        Khalid M. Jackson-Bey,                                   October 14, 2015
        Appellant-Petitioner,                                    Court of Appeals Case No.
                                                                 45A03-1311-PC-507
                v.                                               Appeal from the Lake Superior
                                                                 Court
        State of Indiana,                                        The Honorable Natalie Bokota,
        Appellee-Respondent.                                     Judge
                                                                 Trial Court Cause No.
                                                                 45G04-1106-PC-7



        Mathias, Judge.


[1]     Kalid Malik Jackson-Bey (“Jackson-Bey”) filed a petition for post-conviction

        relief in Lake Superior Court, and the court denied the petition. Jackson-Bey


        Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 1 of 15
        appeals and presents six issues for our review, which we consolidate and restate

        as: (1) whether the post-conviction court properly concluded that Jackson-Bey

        was not denied the effective assistance of trial counsel; and (2) whether the

        State presented evidence sufficient to support Jackson-Bey’s convictions.

[2]     We affirm.


                                      Facts and Procedural History

[3]     The facts underlying Jackson-Bey’s convictions were set forth in our decision

        on direct appeal as follows:


                On the morning of January 6, 2008, Jorge Molina was outside
                his house working on his car when a black man approached him
                quickly. The man displayed a gun and said he needed money.
                Specifically, he said “if he didn’t get any [money], he would
                shoot [Molina] right there.” The man then put the gun straight in
                Molina’s face. Molina said he did not have any money on him
                because his wallet was inside the house, where his wife and
                daughter were sleeping. The man then held his gun on Molina,
                pulled on his coat, and led him into the house. Once the man left
                the house, Molina called 911. Molina identified the man from a
                photo array and at trial as Jackson-Bey.


                Before Molina identified Jackson-Bey from the photo array, on
                January 8, 2008, Darrel Kilbourne was waiting for the bus
                outside his East Chicago HUD apartment when he realized he
                forgot something inside. As Kilbourne started to unlock the door
                to the apartment building, someone came from behind him and
                stuck a gun in his ribs, demanded money, and said, “I will shoot
                you.” Kilbourne said he did not have any money and gave him
                the change from his pocket.



        Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 2 of 15
        Edward Serna, Kilbourne’s roommate, heard a commotion
        outside and proceeded to the door. A black man pushed
        Kilbourne inside and pointed the gun at Serna’s head. The man
        asked Serna where he lived, and Serna responded upstairs. Once
        they were inside the apartment, Serna was able to get a good look
        at the man’s face. When the man asked for Serna’s money, he
        said that he did not have any, so the man asked for Kilbourne’s
        money. Still not successful in obtaining any money, the man
        “pistol whipped” Serna on the side of his head. The man then
        ordered the men to crawl on the floor and put the gun to the side
        of Serna’s head. At this point, Kilbourne reached into his pocket
        and said that he had some money after all. However, the man
        was still upset and threatened to shoot them. Serna begged for his
        life. The man then ordered Kilbourne and Serna back downstairs
        and out of the building. Unknown to the man, a police car was in
        front of the building because someone had called 911.


        East Chicago Police Department Officer Hector Rosario was
        dispatched to the apartment building for a disturbance call. He
        observed a black male exiting the building. When Officer Rosario
        summoned the man, he took off running down the alley. Officer
        Rosario chased him. He lost sight of the man between some
        houses while additional officers drove to the other side of the
        block. Eventually, Officer Rosario located the man underneath a
        front porch and pulled him out. He also located a handgun
        underneath the porch. Before placing the man inside a patrol car
        to be transported to the police station, Officer Rosario patted him
        down and found a bag of marijuana. Serna saw the man at the
        patrol car and knew that the officers had found the right guy.
        Serna later went to the police station and identified Jackson-Bey
        from a photo array.


Jackson-Bey v. State, No. 45A04-0911-CR-646, 2010 WL 2885966, slip op. at 2-4

(Ind. Ct. App. July 23, 2010), trans. denied.



Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 3 of 15
[4]     As a result, the State charged Jackson-Bey as follows: with regard to the

        January 6 incident involving Molina, Class B felony robbery and Class B felony

        criminal confinement; and with regard to the January 8 incident involving

        Kilbourne and Serna, Class B felony robbery, two counts of Class B felony

        criminal confinement, Class C felony battery, Class A misdemeanor resisting

        law enforcement, and Class A misdemeanor possession of marijuana. See id.,

        slip op. at 4.


[5]     The trial court bifurcated the charges based on the January 6 and 8 incidents.

        With regard to the January 6 incident, one jury found Jackson-Bey guilty of

        criminal confinement but not guilty of robbery. A separate jury found Jackson-

        Bey guilty as charged with regard to the January 8 incident.

[6]     In sentencing Jackson-Bey, the trial court noted that Jackson-Bey had been

        convicted of a November 2007 murder and robbery in Cause No. 45G04-0810-

        MR-8 (“Cause No. MR-8”), after he was in custody for the January 2008

        crimes in this case. In Cause No. MR-8, Jackson-Bey was sentenced to an

        aggregate term of sixty-five years. See Jackson-Bey v. State, No. 45A03-0908-CR-

        365, 2010 WL 909092 (Ind. Ct. App. Mar. 15, 2010). The trial court in the

        current case sentenced Jackson-Bey to ten years on each of his four Class B

        felonies, four years on his Class C felony, and one year on each of his two Class

        A misdemeanors. The court ordered Jackson-Bey’s ten-year sentence for the

        robbery of Kilbourne to be served consecutive to his sixty-five-year sentence for

        murder and robbery in Cause No. MR-8. The court ordered Jackson-Bey’s one-

        year sentences for the Class A misdemeanors to be served concurrently but the

        Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 4 of 15
        remainder of his sentences to be served consecutively, for an aggregate term of

        forty-four years in this case.

[7]     On direct appeal, Jackson-Bey argued that the evidence was insufficient to

        establish his identity as the culprit and that the trial court abused its discretion

        in ordering one of his sentences to be served consecutively to the sixty-five-year

        sentence in Cause No. MR-8. A panel of this court held that sufficient evidence

        established Jackson-Bey’s identity as the culprit and that the trial court did not

        abuse its discretion, thereby affirming Jackson-Bey’s convictions and sentence.

        See Jackson-Bey, No. 45A04-0911-CR-646, slip op. at 8-9.


[8]     Jackson-Bey filed a pro se petition for post-conviction relief on June 2, 2011,

        and an amended petition on October 15, 2012. The post-conviction court held

        evidentiary hearings on Jackson-Bey’s petition on December 19, 2012, and

        March 15, 2013. Both parties then submitted proposed findings of fact and

        conclusions of law to the court. The post-conviction court entered findings of

        fact and conclusions of law on October 29, 2013, denying Jackson-Bey’s

        petition. Jackson-Bey filed a notice of appeal on November 22, 2013. After

        numerous procedural delays, this case was finally fully briefed and submitted to

        this court.


                                 Post-Conviction Standard of Review

[9]     In addressing Jackson-Bey’s claims, it bears repeating that post-conviction

        proceedings are not “super appeals” through which convicted persons can raise

        issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d


        Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 5 of 15
         389, 391 (Ind. 2002). Post-conviction proceedings instead afford petitioners a

         limited opportunity to raise issues that were unavailable or unknown at trial

         and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). The

         post-conviction petitioner bears the burden of establishing grounds for relief by

         a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.

         2008). Thus, on appeal from the denial of post-conviction relief, the petitioner

         appeals from a negative judgment. Id. To prevail on appeal from the denial of

         post-conviction relief, the petitioner must show that the evidence as a whole

         leads unerringly and unmistakably to a conclusion opposite than that reached

         by the post-conviction court. Id. at 643-44.


[10]     Where, as here, the post-conviction court makes findings of fact and

         conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

         must determine if the court’s findings are sufficient to support its judgment.

         Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

         N.E.2d 962. Although we do not defer to the post-conviction court’s legal

         conclusions, we review the post-conviction court’s factual findings under a

         clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or

         judge the credibility of witnesses, and we will consider only the probative

         evidence and reasonable inferences flowing therefrom that support the post-

         conviction court’s decision. Id.


                                Ineffective Assistance of Trial Counsel

[11]     Our supreme court has summarized the law regarding claims of ineffective

         assistance of trial counsel as follows:
         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 6 of 15
        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). First, the
        defendant must show that counsel’s performance was deficient.
        This requires a showing that counsel’s representation fell below
        an objective standard of reasonableness, 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. Second, the
        defendant must show that the deficient performance prejudiced
        the defense. 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. A reasonable probability is a probability sufficient
        to undermine confidence in the outcome.

        Counsel is afforded considerable discretion in choosing strategy
        and tactics, and we will accord those decisions deference. A
        strong presumption arises that counsel rendered adequate
        assistance and made all significant decisions in the exercise of
        reasonable professional judgment. 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. Isolated mistakes, poor
        strategy, inexperience, and instances of bad judgment do not
        necessarily render representation ineffective. 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.


Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

omitted). Jackson-Bey argues that his trial counsel was ineffective for failing to

do several things. We address each in turn.




Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 7 of 15
         A. Failure to Make an Opening Statement

[12]     Jackson-Bey first argues that his trial counsel was constitutionally ineffective for

         failing to make an opening statement to the jury. Jackson-Bey’s trial counsel

         testified at the post-conviction hearing that he could not remember any

         particular reason for not making an opening statement at either of Jackson-

         Bey’s trials. He did say, however, that he usually chose not to make opening

         statements if the State’s case was fairly strong.


[13]     Jackson-Bey now argues that there could be no legitimate reason to choose not

         to make an opening statement. However, our supreme court has long held that

         “[i]t is by no means unusual for criminal defense counsel to waive opening

         argument for a wide variety of reasons.” Roche v. State, 690 N.E.2d 1115, 1124

         (Ind. 1997). Therefore, the court has “regularly held that the decision not to

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

         ineffective assistance of counsel claim.” Id.


[14]     Thus, Jackson-Bey has not demonstrated that the post-conviction court clearly

         erred in determining that Jackson-Bey’s trial counsel was not ineffective for

         failing to make an opening statement.


         B. Failure to Depose Witnesses

[15]     Jackson-Bey next argues that his trial counsel was ineffective for failing to

         depose certain witnesses. Jackson-Bey correctly notes that a criminal defendant

         has a constitutional right to confront the witnesses against him. See Ind. Const.

         Art. 1, Sec. 13(a); U.S. Const. amend. VI. However, this does not translate into

         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 8 of 15
         an absolute obligation upon counsel to depose witnesses. Indeed, our supreme

         court has held that “[c]ounsel’s failure to interview or depose State’s witnesses

         does not, standing alone, show deficient performance. The question is what

         additional information may have been gained from further investigation and

         how the absence of that information prejudiced his case.” Williams v. State, 771

         N.E.2d 70, 74 (Ind. 2002) (citing Williams v. State, 724 N.E.2d 1070, 1076 (Ind.

         2000)).


[16]     Here, Jackson-Bey makes the conclusory argument that deposing the witnesses

         prior to trial would have assisted his trial counsel during cross-examination.

         However, Jackson-Bey refers us to nothing in the record that would suggest that

         his trial counsel’s cross-examination of the witnesses was inadequate.

         Moreover, trial counsel testified at the post-conviction hearing that he does not

         always depose witnesses and that his choice to do so is a matter of strategy, as

         deposing a witness could preserve testimony unfavorable to his client that could

         then be used at trial. Therefore, we cannot say that the post-conviction court

         clearly erred in concluding that trial counsel was not ineffective for failing to

         depose certain witnesses.


         C. Failure to Suppress Jackson-Bey’s Confession

[17]     Jackson-Bey next faults his trial counsel for failing to object to and suppress the

         incriminating statement that Jackson-Bey gave to the police. Jackson-Bey

         argues that his counsel knew that the voluntariness of his confession was an

         important issue and that counsel was also aware that his confession was “false

         and coerced.” Appellant’s Br. p. 8. Jackson-Bey contends that, had his
         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015   Page 9 of 15
         confession been challenged, it would have been suppressed, dealing a “serious,

         probably fatal blow to the State[’]s case.” Id.


[18]     The problem with Jackson-Bey’s argument, however, is that he refers to no

         evidence suggesting that his confession was false or coerced. Although the State

         bears the burden of establishing the voluntariness of a confession at trial, see

         Pruitt v. State, 834 N.E.2d 90, 114-15 (Ind. 2005), Jackson-Bey, as the post-

         conviction petitioner, bore the burden of proving his claims for relief. See

         Henley, 881 N.E.2d at 643.


[19]     Jackson-Bey’s trial counsel testified at the post-conviction hearing that he did

         not recall Jackson-Bey ever telling him that the confession was coerced, and

         when Jackson-Bey himself testified at the hearing, he offered no testimony to

         support his contention that his confession was coerced. Accordingly, the post-

         conviction court properly concluded that Jackson-Bey had not established that

         his counsel was ineffective for failing to suppress Jackson-Bey’s statement to the

         police.


         D. Failure to Object to Prosecutor’s Allegedly False Statements

[20]     Jackson-Bey next argues that his trial counsel was ineffective for failing to

         object to certain statements made by the prosecuting attorney regarding a plea

         offer the State sent to Jackson-Bey. Specifically, the prosecuting attorney stated

         that the State offered a plea with consecutive sentencing and that Jackson-Bey’s

         trial counsel asked that this statement be reduced to writing, which the




         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015 Page 10 of 15
         prosecuting attorney did. However, the prosecuting attorney subsequently

         stated that he did not reduce the plea to writing or draft a plea. Id. at 10.


[21]     Jackson-Bey now claims that his trial counsel should have objected to this

         statement because his trial counsel forwarded to him a letter from the State

         containing a plea offer. Thus, Jackson-Bey argues that the prosecuting

         attorney’s statement that the plea was never reduced to writing constituted

         “false testimony” to which his trial counsel should have objected.


[22]     We first note that the statements of the prosecuting attorney, even if false, were

         not testimony. See Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004) (noting

         that statements of counsel are not evidence). More importantly, it does not

         appear that the statements by the prosecuting attorney were false.

[23]     Jackson-Bey’s trial counsel discussed a possible plea deal with the prosecuting

         attorney. At the request of Jackson-Bey’s trial counsel, this plea offer was

         reduced to writing on September 24, 2008, in a letter sent by the State to

         Jackson-Bey’s trial counsel, which stated in relevant part:

                 I am writing to follow up on our phone conversation today
                 regarding [Jackson-Bey]. The terms of the plea the State has
                 offered are as follows: plead to Counts I and II, ten (10) years on
                 each count to run concurrent with each other and consecutive to
                 the sentence in [Cause No. MR-08]. We are set for trial on
                 October 5, 2009. Hopefully, we can dispose of this matter on
                 Monday, September 28, 2009. After that date, the plea [offer] will
                 no longer be open.




         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015 Page 11 of 15
         PCR Ex. Vol., Petitioner’s Ex. 4. That same day, Jackson-Bey’s trial counsel took

         this letter to Jackson-Bey in jail, along with a letter stating in relevant part:

                  I came to see you today to tell you about the State’s offer.
                  Enclosed is a copy of the letter I got today from the prosecutor.

                  If you accept this offer, you will have to admit in court that you
                  did rob the victims in both counts, and you will have to sign a
                  statement that you did rob the victims.

                  If you accept this offer, sign your name below that you admit
                  robbing the victims, and that you will accept the State’s offer.


         Id., Petitioner’s Ex. 3.1


[24]     Although the copy of the letter submitted as evidence by Jackson-Bey indicates

         that he signed the plea offer on September 28, 2009, his trial counsel testified at

         the post-conviction hearing that Jackson-Bey never indicated to him that he was

         willing to accept the State’s plea offer. Instead, on the morning of the first trial

         on October 5, 2009, Jackson-Bey told the trial court that he was willing to

         accept the State’s plea offer. At this time, the prosecuting attorney told the trial

         court that the plea offer had expired.


[25]     In this context, it appears that the prosecuting attorney’s statements that

         Jackson-Bey now complains about were simply recounting to the trial court that

         although the plea offer had been reduced to writing, a formal plea agreement




         1
           The original text of this letter is in all capitals. For the sake of readability, we have used standard
         capitalization in our quotation.

         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015 Page 12 of 15
         was never reduced to writing. At most, the prosecuting attorney’s statements

         were unclear, not false. Therefore, we cannot fault Jackson-Bey’s trial counsel

         for failing to object to these statements.2


         E. Failure to Investigate or Present Alibi Defense

[26]     Jackson-Bey’s last claim of ineffective assistance of trial counsel is that his

         counsel was ineffective for failing to properly investigate and present an alibi

         defense. Jackson-Bey contends that, had his counsel properly investigated his

         case, he would have discovered the existence of an alibi defense.

[27]     At the post-conviction hearing, however, Jackson-Bey never established that he

         informed his trial counsel of the possibility of an alibi defense. Instead, he

         merely established that his trial counsel knew of a woman named Cherish

         Christian (“Christian”). Further, Christian’s affidavit, which was submitted into

         evidence by Jackson-Bey at the post-conviction hearing, does not actually

         establish an alibi for Jackson-Bey. The affidavit states that Christian received a

         telephone call from Jackson-Bey on January 6, 2008 “at 9:00 am while he was

         in Chicago[.]” Ex. Vol., Petitioner’s Ex. 2.3 This affidavit, however, does not

         explain how Christian knew that Jackson-Bey was in Chicago when he called.




         2
           To the extent that Jackson-Bey’s argument is that he did intend to accept the plea offer, his trial counsel’s
         testimony contradicts this claim, and the post-conviction court was well within its discretion to believe the
         testimony of trial counsel.
         3
           As noted by the State, Christian’s affidavit is typewritten except for a portion which appears to have been
         whited-out and overwritten in pen “at 9:00 am while he was in Chicago[.]” Id. This apparent alteration does
         not instill confidence in the integrity of the affidavit.

         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015 Page 13 of 15
         Also, the post-conviction court, as the trier of fact, was under no obligation to

         credit Christian’s affidavit. Moreover, the affidavit does nothing to establish

         that Jackson-Bey informed his trial counsel of the possibility that Christian was

         an alibi witness.

[28]     Under these facts and circumstances, the post-conviction court did not clearly

         err in determining that there was “no credible evidence that Jackson-Bey was in

         Chicago, Illinois or with Ms. Christian at 9:00 a.m. on January 6, 2008.”

         Appellant’s App. p. 7. Thus, his trial counsel was not ineffective for failing to

         present an alibi defense.


                                     II. Free-Standing Claim of Error

[29]     Amidst his claims of ineffective assistance of trial counsel, Jackson-Bey also

         argues that the State failed to introduce evidence that he was the perpetrator of

         the crimes, claiming that neither victim made an in-court identification of

         Jackson-Bey as the culprit. Jackson-Bey does not frame this question as one of

         the ineffective assistance of trial or appellate counsel; he simply claims that the

         State failed to prove that he committed the crimes.

[30]     This claim, however, may not be presented as a free-standing claim of error in a

         post-conviction proceeding. It has long been held that most free-standing claims

         of error are not available in a post-conviction proceeding because of the

         doctrines of waiver and res judicata. Timberlake, 753 N.E.2d at 597-98. That is,

         if an issue was known and available but not raised on direct appeal, the issue is

         “waived,” or more accurately, procedurally foreclosed; if an issue was raised


         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015 Page 14 of 15
         and decided on direct appeal, it is res judicata. Stephenson v. State, 864 N.E.2d

         1022, 1028 (Ind. 2007) (citing Timberlake, 753 N.E.2d at 597). Even free-

         standing claims of fundamental error may not be addressed in post-conviction

         proceedings. See id. at 1029.


[31]     Here, Jackson-Bey did present a claim of insufficient evidence on direct appeal,

         and this court held that sufficient evidence established that Jackson-Bey was the

         individual who committed the crimes in question. See Jackson-Bey, No. 45A04-

         0911-CR-646, slip op. at 8-9. This is now res judicata and cannot be relitigated.

         See Stephenson, 864 N.E.2d at 1028 (citing Timberlake, 753 N.E.2d at 597).


                                                    Conclusion

[32]     The post-conviction court did not clearly err in concluding that Jackson-Bey

         was not denied the effective assistance of trial counsel, and Jackson-Bey’s

         freestanding claim of insufficient evidence is barred by the doctrine of res

         judicata and may not be relitigated in an appeal from the denial of a petition for

         post-conviction relief.


[33]     Affirmed.


         Baker, J., and Bailey, J., concur.




         Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015 Page 15 of 15
