                                                           FILED
                                                        May 09 2012, 8:45 am
FOR PUBLICATION
                                                               CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                               GREGORY F. ZOELLER
Public Defender of Indiana                     Attorney General of Indiana

JOHN PINNOW                                    ANN L. GOODWIN
Deputy Public Defender                         Deputy Attorney General
Indianapolis, Indiana                          Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ASHANTI CLEMONS,                               )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )      No. 49A02-1108-PC-737
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Respondent.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven J. Rubick, Judge
                          Cause No. 49G01-0509-PC-148898



                                       May 9, 2012


                               OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Ashanti Clemons appeals the post-conviction court’s denial of his amended

petition for post-conviction relief. Clemons raises two issues for our review:

       1.     Whether he received ineffective assistance of trial counsel.

       2.     Whether he received ineffective assistance of appellate counsel.

       We affirm.

                      FACTS AND PROCEDURAL HISTORY

       The facts underlying Clemons’ amended petition for post-conviction relief were

set out in his appeal from his conviction for voluntary manslaughter:

              On August 30, 2005, Clemons, who lived with his mother, Letiate
       Tate (“Tate”), argued with Prentice Webster (“Webster”) in the upstairs
       hallway of Tate’s apartment building. Shortly thereafter, Webster died
       from multiple gunshot wounds. Police searched the apartment complex for
       witnesses and were told that Webster was heard saying to Clemons “get off
       of me,” Tr. p. 93, and that someone had been entering and exiting Tate’s
       apartment. A witness saw a man run into an apartment wearing a white t-
       shirt and leave a few minutes later wearing a black shirt. Police knocked
       on Tate’s door, and when she opened it, they observed bullets, a box full of
       live ammunition rounds, and several live rounds scattered on Tate’s living
       room floor, all of which were consistent in caliber, brand, and composition
       to the fired casings. The police also observed a white t-shirt on Tate’s
       living room couch. Tate informed the police where they could find
       Clemons. When the police located Clemons, he was wearing a black shirt
       and agreed to go to the police station for questioning.

              Once there, the police conducted a videotaped interview of Clemons.
       A police officer read aloud the advisement of each Miranda right to
       Clemons and then handed him the Advice of Rights/Waiver of Rights form
       (“the form”) for him to initial by each right if he understood it. Clemons
       wrote his initials next to each right. The officer then read aloud to Clemons
       the waiver of rights portion of the form and again handed him the form and
       requested that he initial by each statement to indicate his understanding.
       Clemons wrote his initials next to each statement and signed the waiver.
       During this process, the officer explained certain words and concepts from
       the form that he feared Clemons might not understand. For example, the
                                             2
      officer explained the meaning of the word “coercion” and what it meant to
      say that he would “make a statement.” Ex. p. 37-38. Clemons gave no
      indication that he did not understand what these rights meant after they
      were explained to him. During his interview with the officer, Clemons
      made certain comments indicating to the officer that he understood and was
      fully aware of his rights. For instance, Clemons stated, “You see what I’m
      saying, I mean I, like you read, read my rights, you see what I’m saying, I
      don’t have to, I’ve got the right, you see what I’m saying to stop talking at
      any time or whatever.” Id. at 57. Clemons also admitted to carrying a gun
      without a license and that he fired the gun.

              The State charged Clemons with Count I, Voluntary Manslaughter
      as a Class A felony,[] and Count II, Carrying A Handgun Without A
      License as a Class A misdemeanor,[] which was later enhanced to a Class C
      felony due to a previous conviction. On June 1, 2005, Clemons filed a
      Motion To Suppress the videotaped statements, which was denied
      following a hearing. At the conclusion of his trial, a jury found Clemons
      guilty of carrying a handgun without a license but was hung as to the
      voluntary manslaughter charge. Clemons pursued a direct appeal of his
      handgun conviction. On appeal, Clemons argued that the trial court abused
      its discretion when it admitted the videotape and transcript of statements he
      gave to police, claiming that the police violated his Fifth Amendment right
      to counsel when they failed to stop the interview after he requested counsel.
      Concluding that Clemons’ procedural questions and comments about
      attorneys did not constitute an unequivocal request for an attorney, a panel
      of this Court held that the police did not violate his Fifth Amendment right
      to counsel and that therefore the trial court did not abuse its discretion when
      it admitted the evidence. See Clemons v. State, No. 49A02-0608-CR-722
      (Ind. Ct. App. May 10, 2007), trans. denied [“Clemons I”].

             During Clemons’ retrial on the voluntary manslaughter charge,
      Clemons again objected to the admission of his videotaped statements on
      the basis that he did not knowingly and voluntarily waive his right to
      counsel. The trial court denied Clemons’ objection, stating that the totality
      of the circumstances indicated that Clemons “freely and voluntarily waived
      his rights and that he did have sufficient comprehension and understanding
      to knowingly waive his rights.” Tr. p. 168. At the conclusion of his retrial,
      the jury found Clemons guilty of voluntary manslaughter.

Clemons v. State, No. 49A02-0703-CR-319, at *1-*2 (Ind. Ct. App. Dec. 31, 2007)

(“Clemons II”). We affirmed Clemons’ voluntary manslaughter conviction, id. at *6, and

Clemons did not seek transfer.
                                            3
       On July 15, 2008, Clemons filed a pro se petition for post-conviction relief. On

October 3, appointed counsel filed an amended petition for post-conviction relief. On

September 14 and November 16, 2010, the post-conviction court held a hearing on the

amended petition. And on July 20, 2011, the trial court denied post-conviction relief.

Clemons now appeals.

                            DISCUSSION AND DECISION

                                   Standard of Review

       In post-conviction appeals, our standard of review is well established:

       [T]he petitioner bears the burden of establishing grounds for relief by a
       preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v.
       State, 881 N.E.2d 639, 643 (Ind. 2008). When appealing the denial of post-
       conviction relief, the petitioner stands in the position of one appealing from
       a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will
       not reverse the judgment unless the petitioner shows that the evidence as a
       whole leads unerringly and unmistakably to a conclusion opposite that
       reached by the post-conviction court. Id. at 643-44. Further, the post-
       conviction court in this case made findings of fact and conclusions of law
       in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a
       post-conviction court’s findings and judgment only upon a showing of clear
       error, which is that which leaves us with a definite and firm conviction that
       a mistake has been made. Id. at 644. The post-conviction court is the sole
       judge of the weight of the evidence and the credibility of the witnesses.
       Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We accept findings of
       fact unless clearly erroneous, but we accord no deference to conclusions of
       law. Id.

Taylor v. State, 929 N.E.2d 912, 917 (Ind. Ct. App. 2010), trans. denied.

       Clemons’ request for post-conviction relief is premised on his contentions that he

was denied the effective assistance of trial and appellate counsel in violation of the Sixth

Amendment to the United States Constitution. A claim of ineffective assistance of

counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984).


                                             4
First, the defendant must show deficient performance: representation that fell below an

objective standard of reasonableness, committing errors so serious that the defendant did

not have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the

defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to

undermine confidence in the outcome) that, but for counsel’s errors, the result of the

proceeding would have been different. Id. at 694.

                   Issue One: Effective Assistance of Trial Counsel

      Clemons first contends that he was denied the effective assistance of trial counsel,

Brian Lamar, because Lamar conceded that Clemons’ request for counsel during

interrogation was equivocal and because counsel did not obtain school records before the

first trial as proof of Clemons’ low intellect and inability to waive his Miranda rights.

We address each contention in turn.

      We first consider Clemons’ claim regarding Lamar’s decision to concede at the

first trial’s suppression hearing that Clemons’ request for counsel during his post-arrest

interrogation was equivocal. During his post-arrest interrogation, Clemons stated:

      [Detective]: You’re 27 years old. I want to express how much of a man
                   you were here to us today. How truthful and honest you were
                   here to us today, I want to be able to express that.
      [Clemons]: Oh you’re going to be able to express it, only thing I, I just
                   want my momma sitting right here, you know what I’m
                   saying can I have somebody sitting here with me though?
      [Detective]: I, I understand that . . .
      [Clemons]: That, that’s all I’m asking, I mean I ain’t asking saying [sic] I
                   want, I want to talk to my lawyer. I ain’t said none of that.
      [Detective]: I know.
      [Clemons]: You see what I’m saying, I mean I, like you read, read my
                   rights, you see what I’m saying, I don’t have to, I’ve got the
                   right, you see what I’m saying to stop talking at any time or
                   whatever.
                                            5
      [Detective]: Exactly.
      [Clemons]: You see what I’m saying, ask for a lawyer or something like
                   that, you see what I’m saying. Hey look could I still have a
                   lawyer? Sit here and talk to me right now?
      [Detective]: I’m sorry what?
      [Clemons]: If, you know what I’m saying I don’t have a paid lawyer
                   could I still have a, you all said I could have a lawyer or
                   somebody come talk to me right now, sit here while I . . .
      [Detective]: As I stated at any time you can have a lawyer present when
                   talking to us. Okay. Now . . .
      [Clemons]: even when it’s paid or not?
      [Detective]: A lawyer is not going to let you talk to us. But if you want
                   one, we’ll walk out of here right now and it’s all yours. You
                   know. If you do, but what you think you need to do [sic]. I
                   will not violate your civil rights. I’ve made a promise to your
                   mother and I’m going to stand up to the promise. I mean it
                   looks like this guy got shot through the leg and shot through
                   the arm and got hit in the neck.
      [Clemons]: Let me see.

Clemons I Exhibits at 203, Clemons II Exhibits at 56-57. Again, Clemons argues that his

trial counsel’s performance was ineffective because Lamar conceded that Clemons’

request for counsel was equivocal during his post-arrest interview.

      We initially consider the State’s brief argument that, under the law of the case

doctrine, we are bound by the prior determination that Clemons “did not [unequivocally]

invoke his right to counsel.” Appellee’s Brief at 14. The law of the case doctrine “is a

discretionary tool by which appellate courts decline to revisit legal issues already

determined on appeal in the same case and on substantially the same facts.” Godby v.

Whitehead, 837 N.E.2d 146, 152 (Ind. Ct. App. 2005) (citation omitted), trans. denied.

To invoke the law of the case doctrine, the matters decided in the prior appeal clearly

must appear to be the only possible construction of an opinion, and questions not

conclusively decided in the prior appeal do not become the law of the case. Id. (citation


                                            6
omitted). The doctrine is based upon the sound policy that once an issue is litigated and

decided, that should be the end of the matter. Id. (citation omitted).

       Here, the State asserts only that Clemons “may not make a claim of prejudice that

contravenes” our prior determinations in the two direct appeals that Clemons’ request for

an attorney was equivocal.      Appellee’s Brief at 14.      The State is correct that we

determined in Clemons’ direct appeal from his handgun conviction that his request for

counsel was equivocal. See Clemons I, No. 49A02-0608-CR-722, slip op. at *2.

       In his petition for post-conviction relief and here, Clemons argues that his trial

counsel was ineffective for conceding that his post-arrest request for an attorney was

equivocal. But a review of the transcript of Clemons’ post-arrest interview with the

detectives shows that Clemons did not clearly and unequivocally request the assistance of

counsel. We agree with this court’s conclusion in the direct appeal from the handgun

charge that

       his statements indicate he understood he had signed the waiver of rights
       form prior to speaking with the officers and he understood the police had to
       stop questioning him if he requested counsel. His questions regarding
       whether he could obtain counsel were procedural questions that were not an
       unequivocal request for counsel.

Id. at *2. As such, Clemons cannot show that his trial counsel performed deficiently

when he correctly conceded this point.

       Clemons next contends that his trial counsel was ineffective for failing to

introduce certain evidence at the first suppression hearing in order to show that Clemons’

waiver of Miranda rights was not knowing and voluntary. Specifically, trial counsel did

not offer into evidence at the first suppression hearing school records showing that


                                             7
Clemons has a low IQ. Clemons has not shown that he was prejudiced by trial counsel’s

failure to obtain and offer Clemons’ childhood school records.

       At the post-conviction hearing, Lamar testified that he had attempted to obtain

Clemons’ school records before the first trial but was unsuccessful.        In particular,

Clemons’ mother had claimed to have the records but was unable to find them. Lamar

then instructed one of his investigators to obtain the records from the school but was

finally able to get them shortly before the second trial when Clemons’ mother personally

delivered a consent form to the school. Lamar then offered the school records into

evidence at the voluntary manslaughter retrial. The records showed that Clemons, who

was twenty-seven years old at the time of his arrest, had an IQ of 74 when he was eleven

years old.

       The evidence shows that Lamar took steps to obtain Clemons’ school records in

advance of the first trial and was unsuccessful through no fault of his own. Further, the

same trial judge presided over both trials, and even after the trial court reviewed such

records at the second trial’s suppression hearing, the court found that Clemons’ waiver of

his Fifth Amendment rights was knowing and voluntary. On these facts, Clemons has not

shown that Lamar’s performance was deficient.

                            Issue Two: Appellate Counsel

       Clemons also contends that he was denied effective assistance of appellate

counsel, Julie Slaughter. Specifically, he asserts that Slaughter was ineffective because

she failed to petition for transfer from this court’s decision in Clemons II affirming his

voluntary manslaughter conviction and thereby procedurally defaulted him from seeking


                                            8
habeas corpus relief. He maintains that the post-conviction court erroneously relied on

Yerden v. State, 682 N.E.2d 1283 (Ind. 1997), in finding that Clemons had not shown

ineffective assistance of appellate counsel. We must agree.

       In Yerden, a direct appeal, our supreme court considered a claim that interlocutory

appellate counsel was ineffective for having failed to make a particular argument, to

show how prejudice would result by newly passed rules of evidence, and to seek transfer

to the supreme court. Applying the Strickland test, the court noted that the defendant had

“literally provided no argument, much less any cogent argument, explaining how the

lawyer who took the interlocutory appeal performed below prevailing norms.” Id. at

1286. Only then did the court note in dictum that a “healthy majority of lawyers who

lose before the Indiana Court of Appeals, for example, elect not to seek transfer. On the

face of it, without any explanation, a lawyer who does not petition for transfer has simply

performed according to the statistical norm.”      Id.   As a result, Yerden’s claim of

ineffective assistance failed. Id.

       The opinion in Yerden is distinguishable. There the defendant did not explain

how failing to petition for transfer constituted representation below an objective standard

of reasonableness. On that ground, our supreme court held that the defendant had failed

to show ineffective assistance of counsel. Id. Conversely, and as discussed in more

detail below, Clemons has shown that, under O’Sullivan v. Boerckel, 526 U.S. 838

(1999), the failure to seek review from the highest appellate court of the state may result

in procedural default of a federal habeas claim and, therefore, could constitute

performance below that standard.      Thus, Yerden is inapposite, and we are left to


                                            9
determine whether Clemons has shown that his appellate counsel was ineffective in this

case.

        Clemons correctly observes that a defendant must exhaust all state court remedies,

including a request for discretionary review by a state court of last resort, in order to

preserve his right to request federal habeas corpus relief. The Supreme Court has held

that,

        [b]efore a federal court may grant habeas relief to a state prisoner, the
        prisoner must exhaust his remedies in state court. In other words, the state
        prisoner must give the state courts an opportunity to act on his claims
        before he presents those claims to a federal court in a habeas petition. The
        exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 29
        L. Ed. 868, 6 S. Ct. 734 (1886), is now codified at 28 U.S.C. § 2254(b)(1)
        1994 ed., Supp. III).

Boerckel, 526 U.S. at 842. The exhaustion doctrine, codified at 28 U.S.C. § 2254

provides in part that an

        application for writ of habeas corpus on behalf of a person in custody
        pursuant to a judgment of a State court shall not be granted unless it
        appears that—

        (A) the applicant has exhausted the remedies available in the court of the
        State; or

        (B)(i) there is an absence of available State corrective process; or

        (ii) circumstances exist that render such process ineffective to protect the
        rights of the applicant.

28 U.S.C. § 2254(b)(1). A habeas petitioner “shall not be deemed to have exhausted the

remedies available in the courts of the State . . . if he has the right under the law of the

State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).

“The exhaustion requirement is satisfied if the federal issue has been properly presented


                                              10
to the highest state court, either by direct review of the conviction or in a post-conviction

attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

       Here, again, following the direct appeal of Clemons’ voluntary manslaughter

conviction, his appellate counsel did not petition for transfer. Clemons argues that, as a

result, he is prevented from exhausting his state remedies by having the supreme court

consider whether his Fifth Amendment right to counsel was violated during his post-

arrest interrogation. Clemons is incorrect.

       A petitioner’s failure to exhaust his claims properly ripens into a procedural

default once state remedies are no longer available. Miller v. Danforth, 2012 U.S. Dist.

LEXIS 30017, at *16 n.6 (S.D. Ga. March 6, 2012) (citing McNair v. Campbell, 416 F.3d

1291, 1305 (11th Cir. 2005)). But state remedies are yet available to Clemons regarding

his Fifth Amendment claim. Specifically, if Clemons were to petition for transfer from

the present post-conviction decision, the alleged denial of his Fifth Amendment right to

counsel would be before the Indiana Supreme Court when it considers the issues

Clemons has raised in this appeal.        Therefore, Clemons has not been denied the

opportunity to exhaust his state remedies regarding his alleged denial of the Fifth

Amendment right to counsel.       As such, his right to seek habeas review has not been

procedurally defaulted, and, therefore, Clemons has not shown ineffective assistance by

his appellate counsel.

                                        Conclusion

       Clemons has not shown that his trial counsel was ineffective for conceding at his

first trial that his post-arrest request for counsel was equivocal. Nor has he shown


                                              11
ineffectiveness when his trial counsel, despite investigation, was unable to secure and

offer into evidence Clemons’ sixteen-year-old schools records as evidence of his low IQ

and, therefore, his purported inability to knowingly waive his right to counsel. Finally,

Clemons has not demonstrated that his appellate counsel was ineffective for failing to file

a petition to transfer from his voluntary manslaughter conviction. Because he may still

seek review by the Indiana Supreme Court by appealing the instant decision, Clemons

has not been procedurally defaulted. As such, he has not demonstrated that his appellate

counsel’s representation was deficient. We affirm the denial of Clemons’ amended

petition for post-conviction relief.

       Affirmed.

ROBB, C.J., and VAIDIK, J., concur.




                                            12
