      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be                               Mar 16 2020, 5:35 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 Duane Johnson                                     Curtis T. Hill, Jr.
      Michigan City, Indiana                                   Attorney General

                                                               George P. Sherman
                                                               Supervising Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rodney Duane Johnson,                                    March 16, 2020
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               19A-PC-1620
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      State of Indiana,                                        The Honorable John M.
      Appellee-Respondent                                      Marnocha, Judge
                                                               Trial Court Cause No.
                                                               71D02-1708-PC-30



      Crone, Judge.


[1]   Rodney Duane Johnson appeals the denial of his successive petition for post-

      conviction relief (“PCR”). We affirm.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1620 | March 16, 2020              Page 1 of 5
[2]   In 2006, a jury found Johnson guilty of murder and arson based on his 1996

      shooting of Lyman Diggins and his burning of Diggins’s body and vehicle with

      gasoline. Johnson’s appellate counsel used the Davis/Hatton procedure to file

      both a PCR petition and a direct appeal. In his PCR petition, Johnson argued

      that the State failed to disclose that jailhouse informants who testified against

      him had been promised leniency; the post-conviction court denied his petition.

      In his direct appeal, Johnson argued that the trial court erred in admitting

      hearsay evidence. Another panel of this Court affirmed the post-conviction

      court’s ruling on the basis that no promises of leniency had been made, and

      affirmed the trial court’s ruling on the basis that Johnson had failed to preserve

      the hearsay issue. Johnson v. State, No. 71A03-1103-PC-97, 2011 WL 5928057

      (Ind. Ct. App. Nov. 29, 2011). Johnson’s appellate counsel did not file a

      petition to transfer to our supreme court. 1 In 2017, this Court allowed Johnson

      to file a successive PCR petition limited to the issue of whether his appellate

      counsel was ineffective in not filing a petition to transfer. In 2019, after a

      hearing at which Johnson was represented by counsel, the post-conviction court

      denied Johnson’s successive PCR petition.


[3]   Johnson now appeals pro se, “but this does not mean that we will treat his brief

      any differently than we would if he were represented by counsel.” Receveur v.

      Buss, 919 N.E.2d 1235, 128 n.4 (Ind. Ct. App. 2010), trans. denied. “Indeed, it



      1
        Counsel informed Johnson via letter that he was unable to file a petition to transfer due to a policy change
      in the public defender’s office; the letter was sent after the deadline for filing a petition had passed.
      Appellant’s App. Vol. 2 at 142.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1620 | March 16, 2020                      Page 2 of 5
      has long been the rule in Indiana that pro se litigants without legal training are

      held to the same standard as trained counsel and are required to follow

      procedural rules.” Id. (italics omitted). “We will not become an ‘advocate for a

      party, or address arguments that are inappropriate or too poorly developed or

      expressed to be understood.’” Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct.

      App. 2016) (citation omitted), trans. denied (2017).


[4]   “The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence.” Crowder v. State, 91

      N.E.3d 1040, 1048 (Ind. Ct. App. 2018). A petitioner appealing from the denial

      of PCR appeals from a negative judgment. Id. “On review, we will not reverse

      the judgment unless the evidence as a whole unerringly and unmistakably leads

      to a conclusion opposite that reached by the post-conviction court.” Id.


              Generally, to prevail on a claim of ineffective assistance of
              counsel a petitioner must demonstrate both that his counsel’s
              performance was deficient and that the petitioner was prejudiced
              by the deficient performance. A counsel’s performance is
              deficient if it falls below an objective standard of reasonableness
              based on prevailing professional norms. To meet the appropriate
              test for prejudice, the petitioner 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. Failure to satisfy either prong will
              cause the claim to fail.


      Id. (citations omitted).




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1620 | March 16, 2020   Page 3 of 5
[5]   As best we can tell, Johnson’s argument appears to be that his appellate counsel

      was ineffective in failing to file a petition to transfer because it foreclosed his

      ability to seek habeas corpus relief in federal court. See 28 U.S.C. §

      2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person

      in custody pursuant to the judgment of a State court shall not be granted unless

      it appears that … the applicant has exhausted the remedies available in the

      courts of the State[.]”). Assuming, purely for argument’s sake, that Johnson’s

      counsel performed deficiently in not filing a petition to transfer, 2 we note that

      Johnson has failed to develop a cogent argument with citations to relevant

      authority that there is a reasonable probability that a federal habeas proceeding

      would have been successful, i.e., that he was prejudiced by counsel’s allegedly

      deficient performance. 3 Accordingly, we find Johnson’s claim waived and

      affirm the denial of his successive PCR petition. See Collins v. State, 911 N.E.2d




      2
        The United States Supreme Court has held that a criminal defendant has no constitutional right to counsel
      to pursue discretionary state appeals, such as a petition to transfer to the Indiana Supreme Court, see Ind.
      Appellate Rule 57(H) (“The grant of transfer is a matter of judicial discretion.”), and therefore a defendant
      cannot “be deprived of the effective assistance of counsel by his retained counsel’s failure to file the
      application timely.” Wainwright v. Torna, 455 U.S. 586, 588 (1982).
      3
        Johnson does not specifically argue that there is a reasonable probability that the Indiana Supreme Court
      would have granted a petition to transfer and reversed his convictions; indeed, he states that “[w]hether or
      not the transfer is granted is not the issue.” Appellant’s Br. at 7. In a footnote in the table of contents volume
      of his appendix, Johnson purports to raise an argument that the trial court erred in not striking the testimony
      of a fingerprint examiner, who testified without objection that one of Johnson’s fingerprints matched a latent
      fingerprint on a plastic gasoline cap found near Diggins’s burned vehicle and body, because a second
      fingerprint examiner who allegedly confirmed the identification did not testify at trial. We advise Johnson
      that an appendix is not the proper vehicle for raising substantive arguments and that “post-conviction
      procedures do not provide a petitioner with a ‘super appeal’ or opportunity to consider freestanding claims
      that the original trial court committed error. Such claims are available only on direct appeal.” Lambert v.
      State, 743 N.E.2d 719, 726 (Ind. 2001), cert. denied (2002).

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1620 | March 16, 2020                        Page 4 of 5
      700, 709 (Ind. Ct. App. 2009) (finding appellant’s claim waived for lack of

      cogent argument), trans. denied.


[6]   Affirmed.


      May, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1620 | March 16, 2020   Page 5 of 5
