 Pursuant to Ind.Appellate Rule 65(D),
                                                                           Aug 28 2013, 5:42 am
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




APPELLANT PRO SE:                                     ATTORNEYS FOR APPELLEE:

JAMEL DOUGLAS GILBERT                                 GREGORY F. ZOELLER
Carlisle, Indiana                                     Attorney General of Indiana

                                                      GARY R. ROM
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMEL DOUGLAS GILBERT,                                )
                                                      )
       Appellant-Petitioner,                          )
                                                      )
               vs.                                    )      No. 45A03-1201-PC-7
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Respondent.                           )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Diana Ross Boswell, Judge
                                Cause No. 45G03-0906-PC-3


                                           August 28, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Jamel Douglas Gilbert, pro se, appeals the post-conviction court’s denial of his

petition for post-conviction relief. He contends that the post-conviction court erred in

holding that he did not receive ineffective assistance of trial counsel and that he waived

the rest of the claims he asserted for failure to make a cogent argument. Finding that

Gilbert did not receive ineffective assistance of trial counsel and he failed to meet the

burden of establishing grounds for relief as to his additional claims, we affirm.

                              Facts and Procedural History

       The facts underlying Gilbert’s convictions were adopted from this Court’s

memorandum decision on direct appeal:

       On October 9, 2004, Demeka Smith invited several individuals to her
       birthday party located on Fourth and Tyler Street in Gary, Indiana. Invitees
       James Baker (“Baker”) and Jewaun McFerson (“McFerson”) arrived at the
       party at “10:00 [p.m.] or a little after.” Shortly after the party began, a fight
       erupted directly outside the house, and the party ended. Baker and
       McFerson left the party in Baker’s vehicle and proceeded to Baker’s
       residence located on East Seventh Avenue. As Baker was driving away,
       McFerson, the front seat passenger in Baker’s vehicle, noticed that a white
       four-door vehicle with tinted windows and rims was following directly
       behind them. Baker and McFerson arrived in front of Baker’s residence
       and got out of the car, but Baker reentered the vehicle to close his sunroof.

       The white four-door vehicle that had been following them pulled up and
       stopped “a little bit past [Baker’s] driveway.” An individual exited the rear
       passenger-side of the white vehicle and walked toward Baker; three other
       individuals remained inside the vehicle. McFerson observed that the man,
       who had exited the rear passenger-side, wore a red hooded sweatshirt and
       he commenced to fire five or six shots in rapid succession at Baker.

       The police were called, and McFerson gave the officers a description of the
       vehicle. The description of the vehicle was dispatched. Officer Donald
       Evans (“Officer Evans”) attempted to respond to the shooting near Seventh
       and Ohio Street; but, as he approached Tennessee and Eighth Street, he
       observed two red hooded sweatshirts lying in the middle of the street.
                                              2
       Officer Evans stopped and maintained the area until the crime scene
       detectives arrived. The crime scene detectives collected the two red hooded
       sweatshirts for evidence. Shortly thereafter, Officer John Faulkner
       (“Officer Faulkner”) stopped a vehicle matching the suspect vehicle’s
       description. Officer Willie Oliver (“Officer Oliver”) assisted with the stop.
       Officer Oliver testified that he pulled four individuals from the white four-
       door Dodge Dynasty in the following order: the driver, Paris [Albert]; the
       left rear passenger, Jackie Hicks; the right rear passenger, Gilbert; and the
       front seat passenger, Carlton Crosslin. That same night, McFerson
       positively identified the vehicle as the vehicle that was at the scene of the
       shooting. The following day, McFerson identified Gilbert in a photo array
       as the person who shot and killed Baker.

Gilbert v. State, No. 45A05-0610-CR-609 (Ind. Ct. App. Sept. 7, 2007) (citations

omitted). On appeal, Gilbert argued that the trial court abused its discretion when it

admitted certain DNA evidence and did not admit evidence of a prior unrelated shooting,

and this Court affirmed. Id.

       Gilbert then filed a post-conviction relief petition, alleging ineffective assistance

of both trial and appellate counsel. Appellant’s App. p. 17-18. Gilbert argued that his

trial and appellate counsel were ineffective for multiple reasons.        However, in his

petition, Gilbert fully addressed only one claim: that his trial counsel was ineffective for

not requesting a hearing concerning whether an alternate juror may have overheard

Gilbert’s mother say that “They might find Jamel guilty.” Id. at 57-58. After a hearing,

the post-conviction court found that the rest of Gilbert’s claims were waived for failure to

develop a cogent argument. The post-conviction court also found that Gilbert’s trial

counsel’s performance did not fall below professional norms and that Gilbert was not

prejudiced by his trial counsel’s actions.

       The post-conviction court denied Gilbert’s petition for post-conviction relief.

Gilbert, pro se, now appeals.
                                             3
                                Discussion and Decision

       The petitioner in a post-conviction proceeding bears the burden of establishing

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of

post-conviction relief, the petitioner stands in the position of one appealing 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. The post-conviction court in this case entered findings of fact

and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). “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.” Id. The post-conviction court is the sole judge of the weight of the evidence and

the credibility of witnesses. Id. We accept findings of fact unless clearly erroneous, but

we accord no deference to conclusions of law. Id.

       Gilbert contends that the post-conviction court erred in finding that he waived

numerous claims for failure to present a cogent argument and that he received effective

assistance of trial counsel.

                                  I. Waiver of Claims

       Gilbert contends that the post-conviction court erred in determining that he waived

many of his claims for failure to present a cogent argument. We find that Gilbert’s claims

were not waived, but rather that Gilbert failed to meet his burden of establishing grounds

for relief on those claims.

                                            4
       In a post-conviction hearing, “[t]he petitioner has the burden of establishing his

grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5).

In his post-conviction petition, Gilbert alleged that his trial counsel was ineffective for: (1)

not requesting a hearing concerning whether an alternate juror may have heard his mother

comment “they might find Jamel guilty”; (2) failing to present evidence that threats by law

enforcement prevented a witness from testifying that Gilbert was not the shooter; (3)

failing to suppress DNA evidence; and (4) failing to object to the alternate juror being in

the jury room. He also alleged that his appellate counsel was ineffective for not arguing

that the DNA evidence was inadmissible. Appellant’s App. p. 17-18.

       At the post-conviction hearing, Gilbert offered his own testimony along with the

testimony of his appellate counsel, his mother, and his sister in an attempt to substantiate

his claims.1 Gilbert’s appellate counsel testified that he did challenge the qualifications of

the expert who testified about the DNA evidence. Tr. p. 7-8. Gilbert’s mother and sister

both testified that Gilbert’s mother did make the comment that “they might find Jamel

guilty,” but neither could testify that the alternate juror actually heard the comment. Id. at

30-31, 36. Finally, Gilbert testified that his friend told him that he was threatened by a

police officer to testify that Gilbert was the murderer. Id. at 22. However, Gilbert did not

actually hear the conversation at issue. Id. at 25.

       In his proposed findings of fact and conclusions of law following the hearing,

Gilbert only fully addressed the one claim concerning the comment made by his mother

by providing legal argument and citation to authority. Id. at 39-43. Therefore, there was

       1
          Gilbert’s trial counsel did not testify because he passed away on September 13, 2010.
Appellant’s App. p. 56.
                                              5
only one “fully briefed and argued” claim presented for review. Id. at 58. Since Gilbert

failed to present sufficient evidence or legal authority on all but one of his post-conviction

claims, while we cannot say that the post-conviction court should have waived the claims,

we do hold that Gilbert failed to meet his burden of establishing grounds for relief by a

preponderance of the evidence on those claims. The denial of post-conviction relief was

therefore appropriate.

                           II. Ineffective Assistance of Counsel

       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. Strickland v. Washington, 466 U.S. 668, 687

(1984). Failure to satisfy either prong will cause the claim to fail. French v. State, 778

N.E.2d 816, 824 (Ind. 2002). Counsel’s performance is deficient if it falls below an

objective standard of reasonableness based on prevailing professional norms. Id. Counsel

is afforded considerable discretion in choosing strategy and tactics, and we will accord

those decisions deference. Timberlake, 753 N.E.2d at 603. A strong presumption arises

that counsel rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.       Id.   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.

Id. A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).




                                             6
      In his one claim that survived the post-conviction hearing, Gilbert argues that his

trial counsel was ineffective for not requesting a hearing concerning whether an alternate

juror may have overheard Gilbert’s mother say at church one night during the trial that

“They might find Jamel guilty.” The record shows that Gilbert’s counsel was aware of

the statement, but determined that it would not have an effect on the impartiality of the

jury and therefore did not request a hearing on the issue. Appellant’s App. p. 60. Gilbert

contends that this was ineffective assistance. We disagree.

      There is a strong presumption that counsel gave adequate assistance and exercised

reasonable professional judgment in making all significant decisions. Timberlake, 753

N.E.2d at 603.    Additionally, we afford counsel substantial discretion in choosing

strategy and tactics, and we will accord deference to those decisions. Id. Deciding not to

make an issue of the statement potentially overheard by an alternate juror was a strategic

decision made by Gilbert’s counsel, and Gilbert has provided nothing in the record to

suggest that this was unreasonable. We must defer to the judgment of Gilbert’s counsel

and we cannot say that the post-conviction court erred in finding that Gilbert’s counsel

did not provide a deficient performance.

      Additionally, Gilbert has failed to show that he was prejudiced in any way.

Gilbert presented no testimony that the alternate juror actually heard the comment or that

he communicated the comment to the other jurors. He only presented the testimony of

his mother and sister, and both were unsure if the comment was even overheard. Tr. p.

30, 37-38. We therefore hold that the post-conviction court did not err in finding that it




                                            7
was not ineffective assistance for Gilbert’s trial counsel to not request a hearing

concerning whether the alternate juror overheard Gilbert’s mother’s statement.

      Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.




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