      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                        FILED
      this Memorandum Decision shall not be                                    Nov 08 2019, 5:43 am

      regarded as precedent or cited before any                                     CLERK
      court except for the purpose of establishing                              Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
      Rodney Kinta Jenkins                                    Curtis T. Hill, Jr.
      Michigan City, Indiana                                  Attorney General of Indiana

                                                              Jesse R. Drum
                                                              Supervising Deputy Attorney
                                                              General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Rodney Kinta Jenkins,                                   November 8, 2019
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              02A03-1710-PC-2334
              v.                                              Appeal from the Allen Superior
                                                              Court
      State of Indiana,                                       The Honorable Frances C. Gull,
      Appellee-Respondent.                                    Judge
                                                              Trial Court Cause No.
                                                              02D05-1609-PC-121



      Shepard, Senior Judge.


[1]   Rodney Kinta Jenkins is incarcerated for convictions of felony murder and two

      counts of criminal confinement. He succeeded in having a robbery conviction

      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019           Page 1 of 9
      vacated on direct appeal, but he did not prevail on his petition for post-

      conviction relief. This Court granted him permission for a successive petition.

      The trial court denied that petition, and we affirm.


                                                    Issues
[2]   The key issues in this appeal are as follows:


              I.      Whether the successive post-conviction relief court (SPCR
                      court) erred in granting the State’s request to accept
                      evidence by affidavit and not hold an evidentiary hearing;


              II.     Whether the SPCR court erred in rejecting Jenkins’ claims
                      of ineffective assistance of trial and appellate counsel;


              III.    Whether the SPCR court erred in rejecting Jenkins’ claim
                      of ineffective assistance of post-conviction counsel; and


              IV.     Whether the SPCR court erred in rejecting Jenkins’ claim
                      that the Indiana Supreme Court violated his constitutional
                      right to equal protection under the law.


                               Facts and Procedural History
[3]   Jenkins and Timothy D. Thomas entered Darrick C. Lawson’s apartment,

      intending to rob him. Jenkins and Thomas had handguns and wore gloves.

      Lawson’s girlfriend, Shalia R. Rogers, was in an upstairs room when they

      arrived. Jenkins entered her room and ordered her to go downstairs. Seeing

      that Jenkins was armed, she complied.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019   Page 2 of 9
[4]   Jenkins and Thomas restrained Lawson and Rogers with tape. After Lawson

      denied having any drugs or money, Jenkins heated up a spoon and threatened

      to torture Rogers with it. Lawson then admitted that he had hidden money in

      his mattress. After Jenkins retrieved $300 from Lawson’s mattress, he stated

      that the amount was less than they had hoped for. Thomas attempted to

      strangle Lawson with a rope. Lawson broke free of his restraints, picked up a

      nearby handgun, and shot Thomas seven times, killing him. Jenkins fled.


[5]   In 1997, the State charged Jenkins with felony murder, two counts of robbery

      (Lawson and Rogers), and two counts of criminal confinement (Lawson and

      Rogers). The jury determined Jenkins was not guilty of robbing Rogers but was

      guilty of the remaining charges.


[6]   Jenkins appealed, arguing: (1) the felony murder statute was inapplicable to his

      case; (2) there was insufficient evidence to sustain his convictions; and (3) his

      convictions of felony murder and robbery violated his constitutional protections

      against double jeopardy. The Indiana Supreme Court vacated Jenkins’

      remaining robbery conviction on double jeopardy grounds but otherwise

      affirmed. See Jenkins v. State, 726 N.E.2d 268 (Ind. 2000).


[7]   In 2001, Jenkins filed a pro se petition for post-conviction relief, which he

      withdrew in 2002. In 2004, he filed another pro se petition, which his counsel

      amended in 2013. The post-conviction court held an evidentiary hearing in

      2014 (PCR-1 hearing), at which Jenkins was represented by counsel. In 2015,

      the court denied Jenkins’ amended petition and entered judgment for the State,


      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019   Page 3 of 9
       concluding Jenkins had “failed to prove his claim on the merits by a

       preponderance of the evidence.” Appellant’s App. Vol. 2, p. 15. Jenkins did

       not appeal.


[8]    In 2016, Jenkins moved this Court for permission to file a successive petition

       for post-conviction relief. A panel of this Court granted Jenkins’ motion.

       Jenkins v. State, Cause No. 02A05-1609-SP-2263 (Ind. Ct. App. Nov. 23, 2016).

       The SPCR court clerk filed Jenkins’ successive petition.


[9]    On December 14, 2016, the State moved the SPCR court to require Jenkins to

       submit his case by affidavit. The court granted the motion. On January 17,

       2017, Jenkins filed an amended successive petition. He later filed an affidavit in

       support of his claims, and the State filed a response.


[10]   On September 6, 2017, the SPCR court issued findings of fact, conclusions

       thereon, and a judgment denying Jenkins’ amended successive petition for post-

       conviction relief. Jenkins filed a motion to correct error, which was deemed

       denied. This appeal followed.


                                    Discussion and Decision
                                        I. Standard of Review
[11]   A petitioner for post-conviction relief is obligated to raise all available grounds

       for relief in the original petition and bears the burden of proving the grounds for

       relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1. To

       prevail on appeal from the denial of post-conviction relief, the petitioner must


       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019   Page 4 of 9
       show that the evidence as a whole leads unerringly and unmistakably to a

       conclusion opposite to that reached by the trial court. Johnson v. State, 670

       N.E.2d 59 (Ind. Ct. App. 1996).


[12]   A post-conviction proceeding “is not a substitute for a direct appeal from the

       conviction and/or the sentence . . . .” P-C. R. 1(1)(b). Similarly, “[p]roper

       successive petitions contain claims that by their nature could not have been

       raised in earlier proceedings. Claims that could have been, but were not, raised

       in earlier proceedings and otherwise were not properly preserved are

       procedurally defaulted.” Matheney v. State, 834 N.E.2d 658, 662 (Ind. 2005).


                              II. Denial of Evidentiary Hearing
[13]   Jenkins argues the SPCR court erred in granting the State’s request to decide

       the case by affidavit and dispense with a hearing. He argues that he raised

       issues of material fact that required the court to hold a hearing at which his

       trial, appellate, and PCR-1 attorneys should have testified.


[14]   When a post-conviction petitioner proceeds without counsel, “the court at its

       discretion may order the cause submitted upon affidavit.” Ind. Post-Conviction

       Rule 1(9)(b). The court need not order the petitioner to be present “unless his

       presence is required for a full and fair determination of the issues raised at an

       evidentiary hearing.” Id. If a post-conviction court orders the case submitted

       by affidavit, after reviewing the affidavits “it is the court’s prerogative to

       determine whether an evidentiary hearing is required.” Smith v. State, 822



       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019   Page 5 of 9
       N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied. We review the court’s

       decision to forego a hearing under an abuse of discretion standard. Id.


[15]   One of the three issues Jenkins raises on appeal is procedurally defaulted and

       should not have been raised in successive post-conviction proceedings. In

       addition, as we discuss below, Jenkins did not provide sufficient evidence to

       support the other two claims and justify an evidentiary hearing. For these

       reasons, the SPCR court did not abuse its discretion in granting the State’s

       request to decide the case by affidavit and declining to hold a hearing.


            III. Ineffective Assistance - Trial and Appellate Counsel
[16]   In his successive petition, Jenkins raised numerous claims of ineffective

       assistance of trial and appellate counsel. Jenkins did not ask the SPCR court to

       take judicial notice of the trial record, choosing instead to submit excerpts from

       the transcript, jury instructions, and other documents. In addition, he did not

       ask the court to obtain the record from his direct appeal. As a result, he failed

       to ensure that the court had a proper record to address his claims.


[17]   In any event, after reviewing his claims of ineffective assistance, we conclude

       that he could have raised the claims during his PCR-1 proceeding. Indeed,

       Jenkins conceded as much in his initial successive petition. Appellant’s App.

       Vol. 2, p. 34. Thus, these claims are waived. See Bethel v. State, 110 N.E.3d 444

       (Ind. Ct. App. 2018) (claim of ineffective assistance of trial counsel waived;




       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019   Page 6 of 9
       appellant could have raised claim in prior post-conviction proceeding), trans.
                 1
       denied.


                        IV. Ineffective Assistance – PCR-1 Counsel
[18]   Jenkins claims his PCR-1 counsel rendered ineffective assistance by failing to

       raise certain issues and by failing to pursue a post-conviction appeal. There is

       no federal or state constitutional right to the assistance of counsel in post-

       conviction proceedings. Baum v. State, 533 N.E.2d 1200 (Ind. 1989). As a

       result, the performance of post-conviction counsel is reviewed under a “highly

       deferential standard.” Daniels v. State, 741 N.E.2d 1177, 1190 (Ind. 2001). If

       counsel in fact appeared and represented the petitioner in a procedurally fair

       setting that resulted in a judgment of the court, it is not necessary to judge his

       performance by the standard set forth in Strickland v. Washington, 466 U.S. 668

       (1984). Baum, 533 N.E.2d 1200.


[19]   In this proceeding, Jenkins failed to ask the SPCR court to take judicial notice

       of the trial record. He also failed to ask the court to obtain the record of his

       direct appeal. Jenkins instead attached self-serving excerpts from the transcript

       and jury instructions to his proposed findings of fact and conclusions thereon.

       As the petitioner, he bore the burden of establishing a factual basis for his

       claims. Without the complete records from Jenkins’ trial and direct appeal,




       1
        Similarly, Jenkins appears to directly challenge several decisions by the trial court, such as the trial court’s
       method of communicating with the jury during deliberations. Appellant’s Br. p. 24. Jenkins may not raise
       “[f]reestanding claims of fundamental error” in a post-conviction proceeding. Graham v. State, 941 N.E.2d
       1091, 1097 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019                Page 7 of 9
       neither the SPCR court nor this Court can determine whether Jenkins’ PCR-1

       counsel should have raised different claims during the PCR-1 hearing and on

       appeal and failed to meet the Baum standard. Jenkins has failed to demonstrate

       that the evidence as a whole leads unerringly and unmistakably to a conclusion

       opposite to that reached by the trial court.


                                          V. Equal Protection
[20]   Several months after Jenkins’ PCR-1 proceeding ended, the Indiana Supreme

       Court issued a decision in Layman v. State, 42 N.E.3d 972 (Ind. 2015). In

       Layman, the Supreme Court reversed a conviction of felony murder, deeming

       the evidence to be insufficient.


[21]   Jenkins argues that the facts of his case are identical to the facts in Layman. He

       further claims that the Supreme Court, by rejecting his challenge to the

       sufficiency of the evidence supporting his felony murder conviction in 2000

       while finding in favor of Layman in 2015, violated his rights to equal protection

       of the law under the federal and state constitutions.


[22]   Jenkins’ claim is novel. None of the authorities he cites discuss an equal

       protection claim arising out of an appellate court’s rulings in unrelated cases.

       Instead, Jenkins cites to numerous cases discussing the history of the felony

       murder charge in Indiana and urges the Court to compare the facts of his case

       to the facts of Layman. We conclude that Jenkins is in substance merely asking

       the Court to reconsider his sufficiency of the evidence claim in light of the

       Layman case. His request is procedurally barred. See State v. Holmes, 728

       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019   Page 8 of 9
       N.E.2d 164, 168 (Ind. 2000) (“a petitioner for post-conviction relief cannot

       escape the effect of claim preclusion merely by using different language to

       phrase an issue and define an alleged error”).


                                                Conclusion
[23]   For the reasons stated above, we affirm the judgment of the trial court.


[24]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-PC-2334 | November 8, 2019   Page 9 of 9
