      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                               FILED
      court except for the purpose of establishing                       May 04 2020, 5:49 am

      the defense of res judicata, collateral                                 CLERK
      estoppel, or the law of the case.                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Jason Dean Hubbell                                       Curtis T. Hill, Jr.
      Pendleton, Indiana                                       Attorney General of Indiana

                                                               Ellen H. Meilaender
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jason Dean Hubbell,                                      May 4, 2020
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               19A-PC-2058
              v.                                               Appeal from the Bartholomew
                                                               Circuit Court
      State of Indiana,                                        The Honorable Kelly S. Benjamin,
      Appellee-Respondent.                                     Judge
                                                               Trial Court Cause No.
                                                               03C01-1504-PC-1915



      Shepard, Senior Judge.


[1]   Jason Hubbell appeals the denial of his petition for post-conviction relief. We

      affirm.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020                 Page 1 of 10
                               Facts and Procedural History
[2]   The underlying facts, as stated in Hubbell’s direct appeal, are as follows:


              Sharon Myers left for work at the Arvin plant early on the
              morning of May 13, 1997. She never arrived. Another employee
              of Arvin, Sherry Young, saw a man and a woman leaving the
              Arvin plant as she arrived at work that same morning. The
              woman looked similar to Myers. The man had one hand on the
              woman’s neck or back, and the two entered a white van and
              drove away.


              The police came to the plant later that morning to look for
              Myers. Young had “mentally” made note of the license plate
              number and gave the police the number and a description of the
              van. The police traced the license plate number to a white van
              owned by Hubbell. Hubbell worked at the Arvin plant with
              Myers and had called in sick on May 13. Young then identified
              a picture of the van as the one she had seen that morning, and
              later that day identified Hubbell when police presented him to
              her.


              In November 1997, skeletal remains were found in a marsh area
              in Johnson County and identified as Myers’ through dental
              records. An autopsy showed a fracture in the hyoid bone which,
              together with the size of a ligature found around Myers’ neck,
              indicated that the cause of death was manual strangulation.
              Acrylic fibers found near the body were consistent with fibers
              found in Hubbell’s van. Grass fragments found in the search of
              the van were consistent with grass samples from the marsh. . . .


              On August 31, 1998, Hubbell was indicted by a grand jury on the
              charges of murder and criminal confinement. On September 28,
              Hubbell filed a notice of alibi, which he amended on October 15.
              The State did not respond. At trial, the State introduced parts of

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 2 of 10
              Hubbell’s statements made following a polygraph examination.
              The State also introduced testimony from a jail inmate that
              Hubbell admitted the killing to him.


      Hubbell v. State, 754 N.E.2d 884, 887-88 (Ind. 2001) (internal footnote omitted).


[3]   Additional facts presented at trial supported the jury’s verdict. As the Arvin

      human resources clerk, Myers handled insurance and disability matters. In that

      position she had several interactions with Hubbell, who was having difficulty

      obtaining disability payments and adding his newborn son to his insurance.

      Further, an investigating officer testified at trial that Hubbell told him “it might

      be possible” that he was responsible for Myers’ disappearance and that “he

      can’t say that he did do it, but he has prayed to God every night since then that

      it isn’t so.” Trial Tr. Vol. 17, p. 129.


[4]   At the end of a four-week jury trial in late 1999, Hubbell was convicted of both

      charges. The court sentenced him to consecutive terms of sixty-five years for

      murder and ten years for confinement. Hubbell, 754 N.E.2d at 888.


[5]   On direct appeal, Hubbell raised ten issues, and our Supreme Court affirmed

      the judgment. See id. at 887.


[6]   In 2002, Hubbell filed a pro se petition for post-conviction relief, which was

      denied in 2015. Still acting as his own counsel, Hubbell appealed. This Court

      reversed and remanded with instructions for the post-conviction court to obtain

      the direct appeal record and permit Hubbell to question his witnesses and



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 3 of 10
      present his arguments with the benefit of the record. See Hubbell v. State, 58

      N.E.3d 268 (Ind. Ct. App. 2016).


[7]   In December 2016, Hubbell filed an amended post-conviction petition, which

      the court heard in February 2019. The court took the matter under advisement

      and denied Hubbell’s petition in August. He now appeals.


                                                    Issues
[8]   Hubbell presents two issues, which we restate as:


              I.      Whether the post-conviction court erred by denying
                      Hubbell’s claim of ineffective assistance of appellate
                      counsel.


              II.     Whether the post-conviction court erred by denying
                      Hubbell’s request for discovery of evidence in an unrelated
                      case.


                                   Discussion and Decision
[9]   As the post-conviction court has denied relief, the petitioner appeals from a

      negative judgment and faces the rigorous burden of showing that the evidence,

      as a whole, leads unerringly and unmistakably to a conclusion opposite that

      reached by the post-conviction court. Harris v. State, 762 N.E.2d 163 (Ind. Ct.

      App. 2002), trans. denied. A post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error — that which leaves us with a

      definite and firm conviction that a mistake has been made. Kistler v. State, 936

      N.E.2d 1258 (Ind. Ct. App. 2010), trans. denied. In this review, findings of fact

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 4 of 10
       are accepted unless they are clearly erroneous, and no deference is accorded to

       conclusions of law. Id.


                                      I. Ineffective Assistance
[10]   To prevail on a claim of ineffective assistance of counsel, a defendant is

       required to establish both (1) that counsel’s performance was deficient and (2)

       that counsel’s deficient performance prejudiced the defendant. Johnson v. State,

       948 N.E.2d 331 (Ind. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-

       96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To satisfy the first element, the

       defendant must show that counsel’s representation fell below an objective

       standard of reasonableness and that counsel’s errors were so serious that the

       defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea

       v. State, 983 N.E.2d 1134 (Ind. 2013). In order to satisfy the second element,

       the defendant must show prejudice; that is, a reasonable probability that, but for

       counsel’s errors, the result of the proceeding would have been different. Id.

       There is a strong presumption that counsel rendered effective assistance and

       made all significant decisions in the exercise of reasonable professional

       judgment, and the defendant has the burden of overcoming this presumption.

       Harris, 762 N.E.2d 163.


[11]   Hubbell asserts that his appellate counsel was ineffective for failing to raise a

       double jeopardy issue on appeal. Because the strategic decision regarding

       which issues to raise on appeal is one of the most important decisions to be

       made by appellate counsel, counsel’s failure to raise a specific issue on direct


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 5 of 10
       appeal rarely constitutes ineffective assistance. Brown v. State, 880 N.E.2d 1226

       (Ind. Ct. App. 2008), trans. denied. “For countless years, experienced advocates

       have ‘emphasized the importance of winnowing out weaker arguments on

       appeal and focusing on one central issue if possible, or at most a few key

       issues.’” Walker v. State, 988 N.E.2d 1181, 1191 (Ind. Ct. App. 2013) (quoting

       Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)), trans. denied. Accordingly, on

       review, we should be particularly deferential to appellate counsel’s strategic

       decision to exclude certain issues in favor of other issues more likely to result in

       a reversal. Id. To prevail on such a claim, a defendant must show from the

       information available in the trial record or otherwise known to appellate

       counsel that counsel failed to present a significant and obvious issue and that

       this failure cannot be explained by any reasonable strategy. Ben-Yisrayl v. State,

       738 N.E.2d 253 (Ind. 2000).


[12]   Hubbell’s trial counsel was also his appellate counsel. Prior to Hubbell’s

       sentencing, counsel filed with the trial court a motion to vacate or reduce the

       confinement conviction on double jeopardy grounds. The State filed a response

       identifying the evidence that supported separate injuries so as to avoid any

       violation of Hubbell’s double jeopardy rights. The State pointed to trial

       evidence of loss of consciousness and a cigarette burn that the jury could have

       found fulfilled the serious bodily injury element of Hubbell’s confinement

       charge. The court denied Hubbell’s motion.


[13]   As we noted above, on direct appeal, Hubbell’s counsel raised ten issues. Our

       Supreme Court affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 6 of 10
[14]   Hubbell’s trial/appellate counsel testified at both his post-conviction hearings,

       stating that the State’s response to the motion to vacate “laid out a compelling

       case that the[re] were separate facts used to convict [Hubbell] of both the

       criminal confinement and the murder.” 2015 PCR Tr. Vol. 1, p. 68.

       Additionally, counsel testified he believed there were “other compelling or

       stronger arguments to have the conviction reversed.” Id. And later he

       reiterated, “[W]e did consider raising that on appeal, but it was decided, as I

       testified last time that we felt that the State’s argument was strong, that we

       wouldn’t be successful on that argument, and we had more arguments that we

       felt were going to be more successful in the appeal than that would have been

       and we made a conscious decision not to include it.” 2019 PCR Tr. Vol. 2, p.

       12. Counsel also indicated that a successful double jeopardy argument would

       have resulted only in a reduction of sentence whereas success on the issues

       raised on appeal had the potential to lead to a reversal. Id. at 57.


[15]   The post-conviction court observed that Hubbell’s trial/appellate counsel

       argued double jeopardy to the trial court based on the Richardson test, that the

       State responded with compelling arguments, and that the trial judge, who had

       just presided over the trial, denied Hubbell’s motion. The post-conviction court

       further found that counsel made a strategic decision not to include the double

       jeopardy claim on appeal due to the State’s strong argument in the trial court

       and the trial court’s decision, as well as the existence of stronger issues. Finally,

       the court noted that counsel attempted to show the cumulative effect of multiple




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 7 of 10
       trial errors in an attempt to obtain a reversal of Hubbell’s convictions and, to do

       so, used 13,997 of the allotted 14,000 words in his appellate brief.


[16]   Hubbell’s appellate counsel testified that his decision not to raise a double

       jeopardy claim on appeal was a strategic decision based on his assessment of

       other possible claims and their corresponding potential benefit. Moreover, his

       assessment was informed by the practice run in the trial court, and counsel was

       thus able to make his decision in light of the State’s argument and the court’s

       decision on the motion to vacate. Hubbell has not met his burden of showing

       that his appellate counsel failed to present a significant and obvious issue and

       that the failure cannot be explained by any reasonable strategy.


                                     II. Request for Discovery
[17]   Hubbell next contends the post-conviction court erred by denying his motion

       for discovery of the record of the unrelated criminal case of Michael Dean

       Overstreet.


[18]   Post-conviction proceedings are governed by the same rules applicable in civil

       proceedings, including discovery procedures. Ind. Post-Conviction Rule 1(5).

       Trial and post-conviction courts are afforded broad discretion in ruling on

       discovery matters, and we will affirm their determinations absent a showing of

       clear error and resulting prejudice. Wilkes v. State, 984 N.E.2d 1236 (Ind. 2013).


[19]   Hubbell claims the post-conviction court’s ruling deprived him of his ability to

       “fully question, present evidence, and argue [his] position that Michael Dean

       Overstreet was the perpetrator of the crimes committed in [his] case.”
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 8 of 10
       Appellant’s Br. pp. 21-22. However, Hubbell posed questions and argued his

       position during his evidentiary hearings. At his first hearing, Hubbell

       questioned his trial counsel about counsel’s investigation into Overstreet as a

       suspect in the disappearance of Myers. Counsel testified that he deposed the

       detective/lead investigator in Hubbell’s case who stated he had looked into

       Overstreet but “could never come up with any connection.” 2015 PCR Tr. Vol.

       1, p. 16. Referring to Overstreet, counsel further testified that he “thoroughly

       investigated that lead at the trial stages and ruled him out positively.” Id. at 89.

       Counsel recalled checking Overstreet’s BMV registration and records to

       determine if he had a van of the type that was described by Sherry Young,

       talking with Overstreet’s attorneys, and reviewing all the media coverage of the

       Overstreet case. He stated, “The facts weren’t matching up. We made a

       conclusion that he wasn’t an alternate suspect. If he would have been, we

       absolutely would have included him in there. In fact, we had two other

       alternate suspects that we included[,]” one of whom admitted to the murder.

       Id. at 90; 2019 PCR Tr. Vol. 2, p. 17.


[20]   At Hubbell’s second hearing, counsel again stated that he had thoroughly

       investigated Overstreet but that he “wasn’t a viable alternative suspect.” 2019

       PCR Tr. Vol. 2, p. 17. Hubbell extensively questioned his counsel as to his

       investigation of Overstreet. See id. at 29-48.


[21]   There was no basis for the court to allow Hubbell to engage in a fishing

       expedition fueled merely by his speculation or hope that there is relief to be

       found. See Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997) (post-conviction is

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 9 of 10
       not device for investigating possible claims, but rather means for vindicating

       actual claims). Hubbell has failed to demonstrate that the post-conviction

       court’s refusal to allow him to obtain the records in Overstreet’s unrelated

       criminal case was clearly erroneous.


                                                Conclusion
[22]   Based on the foregoing, we conclude Hubbell has not met his burden of

       showing the evidence leads unerringly and unmistakably to a conclusion

       opposite that reached by the post-conviction court.


[23]   Affirmed.


       Bradford, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020   Page 10 of 10
