      MEMORANDUM DECISION
                                                                     Aug 12 2015, 9:10 am
      Pursuant to Ind. Appellate Rule 65(D), 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
      Cecil J. Black Jr.                                        Gregory F. Zoeller
      Michigan City, Indiana                                    Attorney General of Indiana

                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Cecil J. Black, Jr.,                                      August 12, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                71A03-1406-PC-211
              v.                                                Appeal from the St. Joseph Superior
                                                                Court
      State of Indiana,                                         The Honorable John M. Marnocha,
      Appellee-Respondent                                       Judge

                                                                Case No. 71D02-0809-PC-42




       Crone, Judge.


                                              Case Summary
[1]    Cecil J. Black, Jr., appeals the postconviction court’s denial of his petition for

       postconviction relief. He contends that the postconviction court erred in

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 1 of 18
      denying his motion for continuance and also raises numerous allegations of

      ineffective assistance of trial and appellate counsel. Finding that the

      postconviction court acted within its discretion in denying Black’s last-minute

      motion for continuance and finding that Black failed to establish ineffective

      assistance of counsel, we affirm.


                              Facts and Procedural History
[2]   The facts as summarized in an unpublished memorandum decision on Black’s

      second direct appeal are as follows:

              On September 24, 2003, Black and his friend, Eddy Kawira, had spent
              the day at Black’s home drinking alcohol and using illegal substances.
              In the late afternoon, John Luke came to Black’s residence to buy
              drugs from Black. Luke purchased the drugs using money that he had
              stolen from Black’s father. After Black learned of the theft, he became
              outraged. He walked to Luke’s house, where Luke’s girlfriend delayed
              Black while Luke escaped from the back of the residence.
              Black walked back to his own residence, still angry, and vowed that he
              would “f*ck [Luke] up.” Shortly thereafter, Luke’s girlfriend arrived at
              Black’s house to discuss the situation, but Black shoved her off of his
              porch and said that she and Luke were acting together to “screw” him
              out of his money.
              After the confrontation with Luke’s girlfriend, Black and Kawira drove
              away from Black’s residence to purchase more beer. While they were
              out, Black purchased a handgun and, on the drive back to Black’s
              house, he fired the gun into the air several times.
              Early on the morning of September 25, 2003, Frank Pangallo and
              Renee Milligan drove to Black’s residence so that Renee could repay
              Black some money that she owed to him. Black showed Pangallo the
              handgun that he had purchased, and Pangallo showed Black how to
              operate the “somewhat broken” weapon. Black mentioned that Luke
              had stolen money from him and Pangallo and Milligan observed that
              Black was still upset about it.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 2 of 18
        As Pangallo and Milligan left Black’s house and walked to their
        vehicle, Pangallo noticed someone, later identified as Luke, walking
        down the street towards them. Before Pangallo entered the vehicle, he
        turned around and saw Black pointing the handgun at Luke, who was
        holding a knife in his hand. Pangallo heard the men arguing and,
        while Pangallo was turned in the other direction, he heard a gunshot.
        When he turned around, he saw Luke on the ground. Black fired his
        gun at Luke, who was attempting to flee, two more times and then
        fled. Pangallo and Renee drove away to a pay phone and called 911.
        South Bend Police officers arrived on the scene within minutes and
        found Luke on the street. Luke had been shot three times, and one of
        the wounds proved fatal. He had also suffered contusions and bruises
        on his left cheek. The forensic pathologist who conducted [the]
        autopsy testified that the bullets causing Luke’s injuries had been fired
        from a gun that was at least three feet away at the time of the shooting.
        Five days after the shooting, Black surrendered to the police, having
        cut his hair, thrown away the clothing he was wearing at the time of
        the incident, and disposed of the handgun. Black provided different
        versions of the shooting to the police, at first contending that he and
        Luke had fought and the gun had fired accidentally and denying that
        he had purchased the handgun only hours before the shooting. Black
        then changed his story, admitting that he had purchased the gun that
        night and claiming that he had fired the weapon in self-defense,
        notwithstanding an earlier claim that he did not know that Luke had
        been carrying a knife at the time of the shooting.
        On September 26, 2003, the State charged Black with murder. A jury
        found Black guilty as charged on September 10, 2004. Black appealed
        his conviction and this court reversed, finding that he had not received
        a fair trial because the trial court had prohibited him from questioning
        prospective jurors regarding self-defense during voir dire. Black v. State,
        829 N.E.2d 607, 612 (Ind.Ct.App.2005) [(“Black I”)].
        Black’s second jury trial commenced on February 27, 2007. He
        proffered jury instructions on self-defense, voluntary manslaughter,
        and involuntary manslaughter. The trial court instructed the jury on
        self-defense and voluntary manslaughter but refused to give the
        involuntary manslaughter instruction because there was no evidence to
        support it. The jury found Black guilty as charged, and on March 28,
        2007, the trial court sentenced Black to fifty-five years imprisonment.

Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 3 of 18
      Black v. State, No. 71A03-0705-CR-196 (Ind. Ct. App. Oct. 9, 2007) (“Black II”)

      (some citations omitted). The same attorney (“Counsel”) who represented

      Black in his appeal in Black I also represented him at trial and on appeal in Black

      II.


[3]   Black filed a direct appeal in Black II, claiming that the trial court erred in

      refusing to give his proffered jury instruction on involuntary manslaughter.

      Another panel of this Court affirmed his conviction in a memorandum

      decision. Id.


[4]   In September 2008, Black’s court-appointed counsel filed a petition for

      postconviction relief (“PCR”), and in October 2008, the State filed its answer. 1

      In February 2012, Black’s counsel withdrew his appearance. In January 2014,

      Black filed his pro se amended petition for postconviction relief, claiming that

      he received ineffective assistance of counsel during his second trial and appeal

      in Black II. On the day of his March 2014 evidentiary hearing, Black orally

      requested a continuance in order to secure the attendance of Counsel as a

      witness. The postconviction court denied his motion and took judicial notice of

      its case files in Black I and Black II as well as the trial transcript in Black II. On

      May 21, 2014, the court entered its findings of fact and conclusions of law in an




      1
        Black has not included a copy of either of these filings in his appendix. Thus, it is unclear what issues were
      raised in his original petition.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015               Page 4 of 18
      order denying Black’s petition for postconviction relief. Black now appeals.

      Additional facts will be provided as necessary.


                                  Discussion and Decision
[5]   Black contends that the postconviction court erred in denying his petition for

      postconviction relief. The petitioner in a postconviction proceeding “bears the

      burden of establishing grounds for relief by a preponderance of the evidence.”

      Ind. Postconviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind.

      2013). When issuing its decision to grant or deny relief, the postconviction

      court must make findings of fact and conclusions of law. Ind. Postconviction

      Rule 1(6). A petitioner who appeals the denial of his postconviction petition

      faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind.

      2011). In conducting our review, we neither reweigh evidence nor judge

      witness credibility; rather, we consider only the evidence and reasonable

      inferences most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199

      (Ind. Ct. App. 2013), trans. denied (2014). “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.”

      Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other

      words, if a postconviction petitioner was denied relief in the proceedings below,

      he must show that the evidence as a whole leads unerringly and unmistakably

      to a conclusion opposite the one reached by the postconviction court. Massey,

      955 N.E.2d at 253. Postconviction relief does not offer the petitioner a super

      appeal; rather, subsequent collateral challenges must be based on grounds

      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 5 of 18
      enumerated in the postconviction rules. McKnight, 1 N.E.3d at 199. These

      rules limit the scope of relief to issues unknown or unavailable to the petitioner

      on direct appeal. Id. Where, as here, the judge who presided over the

      defendant’s trial is also the judge who presided over his postconviction

      proceedings, the postconviction court’s findings and judgment should be

      entitled to “greater than usual deference.” Hinesley v. State, 999 N.E.2d 975, 982

      (Ind. Ct. App. 2013) (citation omitted), trans. denied (2014). 2


          Section 1 – The postconviction court acted within its
          discretion in denying Black’s motion for continuance.
[6]   Black asserts that the postconviction court abused its discretion in denying his

      oral motion for continuance. Where a continuance is not required by statute, a

      ruling on a motion for continuance lies within the postconviction court’s

      discretion and will be reversed only for an abuse of that discretion and resulting

      prejudice. Evans v. State, 809 N.E.2d 338, 342 (Ind. Ct. App. 2004), trans.

      denied. An abuse of discretion occurs where the court’s ruling is against the

      logic and effect of the facts and circumstances before it or where the record

      demonstrates prejudice from the denial of the continuance. Ross v. State, 844

      N.E.2d 537, 544 (Ind. Ct. App. 2006).




      2
        After this Court’s decision in Black I reversing and remanding for a new trial, the original trial judge
      recused, and the case was assigned to the current trial/postconviction court.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015                 Page 6 of 18
[7]   As a pro se litigant without legal training, Black is held to the same standard as

      a licensed attorney. Evans, 809 N.E.2d at 344. He requested a continuance on

      the day of the PCR hearing. A continuance requested for the first time on the

      morning of trial is not favored. Williams v. State, 29 N.E. 3d 144, 147 (Ind. Ct.

      App. 2015). See also Laster v. State, 956 N.E.2d 187, 192-93 (Ind. Ct. App. 2011)

      (holding that trial court acted within its discretion in denying last-minute oral

      motion for continuance to party seeking to locate a witness, where other

      witnesses and jurors were present and ready to proceed and where moving

      party made no showing as to likelihood of locating witness within a reasonable

      time).


[8]   Black requested the continuance at the beginning of the PCR hearing, stating

      that he needed more time to secure Counsel’s attendance as a witness. In

      denying his motion, the postconviction court emphasized (1) the unlikelihood

      of success in securing Counsel’s attendance and (2) the already protracted

      postconviction proceedings. With respect to the probability of securing

      Counsel’s attendance, the postconviction court established for the record that

      the court had been unsuccessful in its own attempts to secure Counsel’s

      attendance on Black’s behalf. The court explained that Counsel had relocated

      to Ohio in the intervening years since Black II and that the court had been

      unsuccessful in its attempts to serve him with a summons and subpoena, which

      were returned as not servable. See PCR Tr. at 12 (“Given the attempts to have

      subpoenas issued to [Counsel], the Court does not believe that a continuance in

      this hearing would result in [Counsel’s] appearance in this case or Mr. Black’s


      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 7 of 18
      ability to serve him with a subpoena for any future hearing.”). As for the issue

      of timing, the postconviction court emphasized, “[T]his whole case began

      eleven years ago with the filing of the original information. It has gone through

      the appellate process twice. The post[]conviction relief case … has been

      pending for five and-a-half years.” Id. See also Evans, 809 N.E.2d at 342

      (holding that postconviction court acted within its discretion in denying

      petitioner’s last-minute motion for continuance where PCR petition had already

      sat idle for years).


[9]   Black did not present evidence to show that he had attempted to secure

      Counsel’s attendance or that he could even do so where Counsel was outside

      the territorial limits of Indiana. See Ind. Trial Rules 4.14, 4.4 (outlining

      circumstances for serving nonresidents beyond state’s territorial limits). He also

      failed to demonstrate the facts to which he believed that Counsel would have

      testified. 3 Moreover, Black’s postconviction proceedings span more than five

      years, yet he failed to explain why he had not sought this continuance earlier

      rather than requesting it on the day of the hearing, when other witnesses were

      present and ready to testify. Based on the foregoing, we conclude that the




      3
        Black claims that he did present facts to which Counsel would be expected to testify, citing as support PCR
      Tr. at 3-6. However, the cited portion of the PCR transcript does not address facts to which Counsel was
      expected to testify; instead, it consists merely of Black’s general explanations of the burden of proof in
      ineffective assistance cases and general statements concerning his need to secure Counsel’s attendance in
      order to show that Counsel’s alleged (but unspecified) omissions resulted in an unlawful conviction.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015             Page 8 of 18
       postconviction court acted within its discretion in denying his motion for

       continuance.


           Section 2 – Black was not denied his constitutional
              right to effective assistance of trial counsel.
[10]   Black maintains that he was denied his constitutional right to effective

       assistance of counsel in his second trial and appeal. At the outset, we note the

       postconviction court’s comprehensive finding, which states in pertinent part,

               [M]uch, if not all, of the evidence adduced at the PCR hearing was in
               the form of the petitioner showing witnesses various reports and
               portions of trial transcripts, having the witnesses read those items, then
               asking the witnesses to state their opinion about what they had just
               read. The petitioner failed to present any cogent evidence or argument
               showing that he is entitled to relief. He has failed to prove that his trial
               counsel was ineffective; he has failed to prove that his appellate
               counsel was ineffective. He has failed to prove (or even argue) what
               his trial and appellate counsel either did, or failed to do, which was
               ineffective.
[11]   Appellant’s App. at 39 (citations to record omitted). Our review of the PCR

       transcript leads us to the same conclusion, but we nevertheless address Black’s

       ineffective assistance claims on the merits.


[12]   To prevail on an ineffective assistance claim, Black must satisfy two

       components; he must demonstrate both deficient performance and prejudice

       resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient

       performance is “representation [that] fell below an objective standard of

       reasonableness, [where] counsel made errors so serious that counsel was not

       functioning as ‘counsel’ guaranteed by the Sixth Amendment.” Passwater, 989

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 9 of 18
       N.E.2d at 770. We assess counsel’s performance based on facts that are known

       at the time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709

       (Ind. Ct. App. 2006), trans. denied. Evidence of isolated poor strategy,

       inexperience, or bad tactics will not support an ineffective assistance claim;

       instead, we evaluate counsel’s performance as a whole. Flanders v. State, 955

       N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “[C]ounsel’s

       performance is presumed effective, and a defendant must offer strong and

       convincing evidence to overcome this presumption.” Ritchie v. State, 875

       N.E.2d 706, 714 (Ind. 2007). “Strickland does not guarantee perfect

       representation, only a reasonably competent attorney.” Hinesley, 999 N.E.2d at

       983.


[13]   In his amended PCR petition, Black raised the following allegations of deficient

       performance by Counsel before and during his second trial: (1) failure to

       properly investigate and prepare for trial; 4 (2) failure to impeach certain of the

       State’s witnesses; and (3) failure to object during the State’s closing argument.




       4
         With respect to Counsel’s pretrial preparation and investigation, Black raised a novel argument in his
       amended PCR petition that Counsel was ineffective in relying solely on the investigation conducted by his
       previous (ineffective) counsel in his first trial. Without evidentiary support, he asserted that his first trial
       counsel was ineffective and then characterized Counsel’s reliance on previous counsel’s pretrial investigation
       as being derivatively deficient. He failed to develop a cogent argument on this issue at the PCR hearing or in
       his appellant’s brief and therefore has waived it for review. Ind. Appellate Rule 46(A)(8); Ross v. State, 877
       N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied (2008).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015              Page 10 of 18
       Appellant’s App. at 47. 5 “[C]ounsel has a duty to make reasonable

       investigations or to make a reasonable decision that makes particular

       investigations unnecessary.” Strickland, 466 U.S. at 691. Because Strickland’s

       prejudice prong necessitates a showing of a reasonable probability that

       counsel’s deficient performance affected the outcome of the trial, establishing

       ineffective assistance of counsel based on counsel’s failure to investigate

       “requires going beyond the trial record to show what investigation, if

       undertaken, would have produced.” McKnight, 1 N.E.3d at 201.


[14]   Black’s investigation argument focuses on Counsel’s alleged failure to examine

       the transcript from his first trial to show that police investigators made false,

       inconsistent statements under oath concerning the presence of four one-dollar

       bills in the victim’s pants pocket and the presence of blood on the pant leg. He

       claims not only that the officers made false statements but also that the

       prosecutor in his second trial knowingly allowed the statements in order to

       create a false narrative and that Counsel was ineffective for failing to address

       the alleged perjury. Because of the overlap between this argument and his




       5
         In his appellant’s brief, Black also includes an assertion of ineffective assistance based on Counsel’s alleged
       failure to object or require the State to make a showing of good faith effort to secure certain witnesses for trial
       before using prior depositions or trial testimony of an unavailable witness at trial. In his amended PCR
       petition, he failed to raise this assertion vis-à-vis Counsel’s performance at trial. Instead, he raised it only in
       conjunction with Counsel’s performance on appeal. As such, we analyze the allegation only as it pertains to
       Counsel’s performance on appeal. See Walker v. State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (issues not
       raised in PCR petition may not be raised for first time on PCR appeal), trans. denied, cert. denied (2007).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015                 Page 11 of 18
       argument that Counsel was ineffective in failing to impeach the officers who

       conducted the crime scene investigation, we address the allegations together.


[15]   Among the witnesses called to testify at Black’s PCR hearing were crime scene

       investigators Sergeant Randy Kaps and Sergeant Alex Arendt. In his

       examination of the officers, Black sought to establish that they had testified

       falsely at his trials concerning their investigations of the victim’s pants. Using

       excerpts from the trial transcripts, Black questioned the officers concerning

       alleged discrepancies between the findings of their initial investigation, pursuant

       to which the pants were found to contain no money, and a subsequent

       investigation showing that four one-dollar bills were discovered inside the small

       watch pocket. 6 He characterizes the inconsistent reports and testimony to the

       latter as perjurious. He does the same with the discrepancy between the initial

       investigation, where police did not notice any blood, and the investigators’

       subsequent report of discovering blood by a hole in one of the pant legs.


[16]   Black also questioned Frank Schaffer, the prosecutor from his second trial,

       using excerpts from the transcripts from both trials and claiming that Schaffer

       had essentially allowed the officers to give false testimony. From this line of

       questioning, Black sought to establish derivatively that Counsel was ineffective

       for failing first to investigate and then to impeach these witnesses. Instead, the

       witnesses’ PCR testimony explained their trial testimony to the effect that it is



       6
         The relevance of the four one-dollar bills goes to the question of whether just prior to the murder, the
       victim was attempting to repay Black’s father for the money he had previously taken from him.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015               Page 12 of 18
       customary for the initial examination of evidence to be cursory, followed by

       more thorough examination(s) of each piece of evidence. Thus, the

       inconsistencies were owing to further discoveries made during the subsequent

       comprehensive examination of evidence. As such, Black’s claim that Counsel

       was ineffective in not impeaching these witnesses based on prior “false”

       statements is simply not supported by the evidence.


[17]   In a closely related claim, Black also submits that Counsel was ineffective in

       failing to object to the prosecutor’s allegedly inflammatory statements during

       closing argument. However, he has failed to identify the specific remarks to

       which he now objects and has otherwise failed to develop a cogent argument

       with citations to authority demonstrating that any objection would have been

       sustained and that he was prejudiced by Counsel’s failure to object. Perryman v.

       State, 13 N.E.3d 923, 931 (Ind. Ct. App. 2014), trans. denied.                  As such, he has

       waived this issue for review. Ind. Appellate Rule 46(A)(8); Pierce v. State, 29

       N.E.3d 1258, 1267 (Ind. 2015).


          Section 3 – Black failed to establish that he received
         ineffective assistance of appellate counsel in Black II.
[18]   Black also contends that he received ineffective assistance of counsel on his

       second direct appeal. The standard of review for a claim of ineffective

       assistance of appellate counsel is the same as for trial counsel in that the

       defendant must show that appellate counsel was deficient in his/her

       performance and that the deficiency resulted in prejudice. Strickland, 466 U.S. at


       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 13 of 18
       686; Bieghler v. State, 690 N.E.2d 188, 192–93 (Ind. 1997), cert. denied (1998).

       Ineffective assistance of appellate counsel claims generally fall into three

       categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure

       to present issues well. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006).


[19]   Black’s claims against Counsel address waiver of issues for failure to raise them

       or present them fully in his second direct appeal. “Ineffective assistance is very

       rarely found in cases where a defendant asserts that appellate counsel failed to

       raise an issue on direct appeal because the decision of what issues to raise is one

       of the most important strategic decisions to be made by appellate counsel.”

       Manzano v. State, 12 N.E.3d 321, 330 (Ind. Ct. App. 2014), trans. denied, cert.

       denied (2015). To show that counsel was ineffective for waiving an issue by

       failing to raise it on direct appeal, the defendant must overcome the strongest

       presumption of adequate assistance, and judicial scrutiny is highly deferential.

       Id. at 329.


[20]   In evaluating the performance prong when appellate counsel has failed to raise

       an issue and waiver results, we apply the following test: (1) whether the

       unraised issues are significant and obvious from the face of the record and (2)

       whether the unraised issues are “clearly stronger” than the raised issues.

       Timberlake v. State, 753 N.E.2d 591, 605–06 (Ind. 2001) (citation omitted). “If

       the analysis under this test demonstrates deficient performance, then we

       examine whether the issues which ... appellate counsel failed to raise, would

       have been clearly more likely to result in reversal or an order for a new trial.”

       Manzano, 12 N.E.3d at 329-30.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 14 of 18
[21]   In Black II, Counsel raised one issue: whether the trial court erred in refusing

       his proffered jury instruction on involuntary manslaughter. Black maintains

       that Counsel was ineffective for failing to allege fundamental error in the trial

       court’s finding that State’s witnesses Milligan and Kawira were unavailable to

       testify at his second trial. 7 With respect to the State’s attempts to secure

       Milligan and Kawira’s attendance at the second trial, the prosecutor from that

       trial testified at the PCR hearing in pertinent part as follows:

                Q. Didn’t you violate Petitioner Black’s Sixth Amendment Right to
                confront his accusers, when you failed to make a good faith effort to
                obtain the presence of Renee Milligan [and] Eddy Kawira at trial?

                A. Nope.

                ….

                Q. … So you sent subpoenas out for [Milligan] … well, you said you
                sent officers out, you didn’t send subpoenas?

                A. I’m sorry?




       7
          Counsel did not object to the trial court’s finding of unavailability, which allowed the State to
       use Milligan’s Black I trial testimony and Kawira’s deposition testimony. This limited Counsel to
       raising the issue as fundamental error.


                The fundamental error exception [to the contemporaneous objection rule] is “extremely
                narrow, and applies only when the error constitutes a blatant violation of basic principles,
                the harm or potential for harm is substantial, and the resulting error denies the defendant
                fundamental due process.” The error claimed must either “make a fair trial impossible”
                or constitute “clearly blatant violations of basic and elementary principles of due
                process.” This exception is available only in “egregious circumstances.”
       Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015              Page 15 of 18
        Q. You didn’t send subpoenas to their former addresses or any
        addresses at that time where you might have tried to locate them?

        A. No, we used to give the subpoenas to the homicide officers, then
        they went out and served them personally.

        Q. So you sent officers to Oklahoma?

        A. No, we sent officers out with subpoenas, they contacted the right
        people. If someone was out-of-state, they tried to get authorities from
        out-of-state to track them down.

        Q. And that’s—

        A. Unfortunately in Indiana, a subpoena doesn’t do any good outside
        the State of Indiana.

        Q. And that’s all you did?

        A. That’s what I gave the homicide investigator’s job to do, yes.

        Q. There is nobody to testify to that?

        A. Excuse me?

        Q. There’s nobody to testify to that?

        A. No, I testified to the Court what we did, obviously … or with the
        transcript you provided.

        Q. Isn’t it more that you … isn’t it [sic] more required than that, than
        just you saying it?

        A. Nope.

        Q. So it’s just your word, your word is good enough then?

        A. My word as officer of the Court.

        Q. There is no procedural thing that you could have done to try to

Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 16 of 18
               secure Renee Milligan and Eddy Kawira, for testimony you wished to
               use against the Petitioner Black?

               A. Obviously we did, and it wasn’t successful.

               Q. So you did everything you could to locate two individuals?

               A. Yes, because I told the Court that as an officer of the Court.
       PCR Tr. at 38-40.


[22]   Black neither called Milligan as a witness at the PCR hearing nor otherwise

       made a showing to the postconviction court concerning her availability. As for

       Kawira, Black called him to testify at the PCR hearing, and Kawira said that he

       did not receive a subpoena to testify at the second trial and that if he had

       received one, he would have returned to Indiana to testify. This testimony did

       not necessarily conflict with the prosecutor’s, and even if it had, the

       postconviction court was the trier of fact charged with making credibility

       determinations, which we may not second-guess on appeal. Moreover, Black

       did not question Kawira concerning facts to which he would have testified had

       he attended the trial and how any such testimony might have varied from the

       statements made in his prior deposition, during which he was under oath and

       subject to cross-examination.


[23]   Simply put, Black failed to meet his burden of establishing that the issue of

       Milligan’s and Kawira’s availability was obvious from the record and clearly

       stronger than the issue raised on appeal in Black II. As such, he has failed to

       demonstrate that Counsel was ineffective for failing to raise witness availability

       as fundamental error on appeal in Black II. Accordingly, we affirm.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 17 of 18
[24]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-PC-211| August 12, 2015   Page 18 of 18
