                                                               FILED
                                                          Aug 21 2019, 10:52 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court


                       IN THE

Indiana Supreme Court
          Supreme Court Case No. 19S-PC-466

                    Troy R. Shaw
                   Appellant-Petitioner,

                           –v–

                  State of Indiana,
                   Appellee-Respondent


     Argued: June 28, 2019 | Decided: August 21, 2019

Appeal from the Allen Superior Court, No. 02D04-1803-PC-17
            The Honorable Frances Gull, Judge

     On Petition to Transfer from the Court of Appeals,
                     No. 18A-PC-1181



                   Per Curiam Opinion
                    All Justices concur.
Per curiam.

   At issue is whether a petitioner who has obtained the right to a new
appeal from a federal court may, without prior authorization, file a post-
conviction petition that challenges only the issues emerging from the new
direct appeal.

   We hold that a post-conviction petition that addresses only the
proceedings on remand from this grant of relief is not a “second” or
“successive” petition under Ind. Post-Conviction Rule 1(12). In these
limited cases, such a petition may proceed without the prior authorization
of this Court or the Court of Appeals.


Facts and Procedural History
  In 2002, a jury convicted Troy R. Shaw of the murder of Brett King.
Shaw’s conviction and 60-year sentence were affirmed on direct appeal.
Shaw v. State, No. 02A03-0205-CR-132, 787 N.E.2d 1030 (Ind. Ct. App.
2003).

   In April 2007, Shaw filed his first petition for post-conviction relief,
alleging the ineffective assistance of trial and appellate counsel. The post-
conviction court denied his petition in March 2008, and the Court of
Appeals affirmed. Shaw v. State, 898 N.E.2d 465, 470 (Ind. Ct. App. 2008),
trans. denied. Shaw thereafter filed a petition for writ of habeas corpus,
which was denied by the U.S. District Court, Southern District of Indiana.
Shaw v. Mize, No. 2:09-cv-325-JMS-WGH (S.D. Ind. 2012).

  But the U.S. Court of Appeals for the Seventh Circuit vacated the
District Court’s judgment, holding that Shaw’s appellate counsel’s
performance was deficient in several respects. Shaw v. Wilson, 721 F.3d 908
(7th Cir. 2013), reh’g denied, reh’g en banc denied, cert. denied, 134 S.Ct. 2818
(2014). The Seventh Circuit remanded “with instructions to issue a writ of
habeas corpus unless the State of Indiana grants Shaw a new appeal
within 120 days after issuance of the mandate.” Id. at 919-20. A new
appeal was opened and held in abeyance until the State’s petition for
certiorari was denied.



Indiana Supreme Court | Case No. 19S-PC-466 | August 21, 2019            Page 2 of 6
   In Shaw’s second direct appeal, he argued that he was prejudiced
when, 17 months after the omnibus date, the State amended the charging
information to charge him with murder instead of Class B felony battery.
But the Court of Appeals affirmed the conviction and sentence, holding
that Shaw failed to demonstrate substantial prejudice. Shaw v. State, 82
N.E.3d 886 (Ind. Ct. App. 2017), reh’g denied, trans. denied.

  Shaw filed another petition for post-conviction relief, alleging that his
appellate attorney failed to properly argue the issues in his new direct
appeal. The trial court dismissed the petition as an unauthorized
successive petition for post-conviction relief under Ind. Post-Conviction
Rule 1(12). In a memorandum decision, the Court of Appeals affirmed the
dismissal. Shaw v. State, No. 18A-PC-1181 (Ind. Ct. App. 2018).

   Shaw seeks transfer, and the Public Defender of Indiana has filed an
amicus brief in support of transfer. For the reasons discussed below, we
grant transfer, thus vacating the Court of Appeals decision, and remand
for further proceedings consistent with this opinion.


Discussion and Decision
    “Any person who has been convicted of, or sentenced for, a crime by a
court of this state” has the right to collaterally attack that conviction or
sentence through a petition for post-conviction relief. Ind. Post-Conviction
Rule 1(1). But a second or successive post-conviction petition cannot be
filed without prior authorization from this Court (in capital appeals) or
the Court of Appeals (in all other appeals), either of which “will authorize
the filing of the petition if the petitioner establishes a reasonable
possibility” that the petitioner is entitled to relief. Ind. P-C. R. 1(12). By
permitting successive post-conviction petitions only when the petitioner
makes some showing of merit, this appellate screening function reduces
the burden on trial courts. Overstreet v. State, 993 N.E.2d 179, 180 (Ind.
2013).

   Post-conviction proceedings are not a “super-appeal”; rather, the
grounds enumerated in the Post-Conviction Rules are “limited to ‘issues
that were not known at the time of the original trial or that were not


Indiana Supreme Court | Case No. 19S-PC-466 | August 21, 2019        Page 3 of 6
available on direct appeal.’” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind.
2013), quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).

  In affirming the trial court’s dismissal of Shaw’s second post-conviction
petition as unauthorized under P-C. R. 1(12), the Court of Appeals relied
on Azania v. State, 738 N.E.2d 248, 250 (Ind. 2000).

   Azania was sentenced to death for murder. His sentence was vacated in
post-conviction proceedings, but after a retrial, Azania was again
sentenced to death, and his second death sentence was affirmed on direct
appeal. As is relevant here, Azania filed a second post-conviction petition
with the trial court and then tendered to this Court a “Notice of Filing
Post-Conviction Petition … or in the Alternative, Petition for Successive
Post-[C]onviction Relief[ ],” alleging that his counsel was ineffective
during his retrial and second direct appeal. Id. at 250. The State responded
with a motion titled “State’s Response to Petition for Leave to File
Successive Petition for Post-Conviction Relief.” Id.

  This Court directed the post-conviction court to dismiss Azania’s
petition, holding that “[i]nasmuch as [the petition] sought successive post-
conviction relief, it was procedurally improper to file the petition without
authorization from this Court.” Id. (Azania was, however, authorized to
pursue one of the four claims he raised in this petition by amending an
authorized successive post-conviction petition that was already pending.)

   But Azania did not squarely address the matter at issue here: whether a
post-conviction petition should be considered a “second” or “successive”
petition if the errors it asserts arose from the proceedings on remand.
Azania’s apparent efforts to hedge his bets by filing the second petition
with the post-conviction court while notifying — or, in the alternative,
seeking the leave of — this Court to file a successive post-conviction
petition made it unnecessary for the Court to establish parameters on
what makes a petition successive.

  Here, the issues and events Shaw raises in his second petition for post-
conviction relief had not yet occurred when he filed his first post-
conviction petition in April 2007. While a second or successive post-
conviction petition remains subject to the screening procedure outlined in



Indiana Supreme Court | Case No. 19S-PC-466 | August 21, 2019           Page 4 of 6
P-C. R. 1(12), a post-conviction petition that raises only issues emerging
from the new trial, new sentencing, or new appeal obtained from a federal
court through habeas proceedings is not a “second” or “successive”
petition. Therefore, Shaw is entitled to pursue his present post-conviction
petition in the trial court without seeking leave from the Court of Appeals.

   As we have held that a post-conviction petition that addresses only
these proceedings on remand is not a “second” or “successive” petition,
and therefore does not require authorization under Ind. P-C. R. 1(12), the
Public Defender of Indiana may represent indigent petitioners in these
circumstances just as it represents others who file an authorized second or
successive petition for post-conviction relief.


Conclusion
   Troy Shaw filed a petition for post-conviction relief, alleging the
ineffective assistance of counsel in his second direct appeal. Because the
petition addressed only the grounds arising from the second appeal, it
was not a “second” or “successive” petition as defined by Ind. P-C. R.
1(12). Shaw’s petition may therefore proceed without prior appellate
authorization and the Public Defender of Indiana may represent Shaw
under these circumstances.

  Having granted transfer, we remand for further proceedings consistent
with this opinion.


All Justices concur.



ATTORNEY FOR APPELLANT, TROY SHAW
Michael K. Ausbrook
Bloomington, Indiana

Michael P. Smyth, Certified Legal Intern
Indiana University Maurer School of Law
Bloomington, Indiana




Indiana Supreme Court | Case No. 19S-PC-466 | August 21, 2019       Page 5 of 6
ATTORNEYS FOR APPELLEE, STATE OF INDIANA
Curtis T. Hill, Jr.
Attorney General of Indiana

Andrew A. Kobe
Deputy Attorney General

Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE, THE PUBLIC DEFENDER OF
INDIANA
Stephen T. Owens
Public Defender of Indiana

Jonathan O. Chenoweth
Deputy Public Defender
Indianapolis, Indiana




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