MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                             Oct 11 2018, 8:41 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael K. Ausbrook                                      Curtis T. Hill, Jr.
Bloomington, Indiana                                     Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Troy R. Shaw,                                            October 11, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1181
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1803-PC-17



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018              Page 1 of 9
[1]   Troy R. Shaw appeals the post-conviction court’s dismissal of his petition. We

      affirm.


                                      Facts and Procedural History

[2]   On June 9, 2000, Shaw was arrested and charged with aggravated battery as a

      class B felony. Shaw v. State, 898 N.E.2d 465, 467 (Ind. Ct. App. 2008), trans.

      denied. On December 12, 2001, the trial court granted the State’s motion to

      amend the charging information to one count of murder and granted Shaw’s

      motion for a continuance. Id. The jury found Shaw guilty of murder. Id. He

      appealed the sufficiency of the evidence supporting his conviction, and this

      Court affirmed. Shaw v. State, No. 02A03-0205-CR-132 (Ind. Ct. App. May 7,

      2003).


[3]   In April 2007, Shaw filed an amended petition for post-conviction relief alleging

      ineffective assistance of trial and appellate counsel. Shaw, 898 N.E.2d at 467.

      He argued he was denied effective assistance of appellate counsel when counsel

      failed to argue that the trial court erred by allowing the State to amend the

      charging information after the omnibus date. Id. at 468-469. On March 5, 2008

      the post-conviction court denied the petition, and another panel of this Court

      subsequently affirmed. Id. at 470.


[4]   Shaw later sought habeas corpus relief, and the United States District Court for

      the Southern District of Indiana denied his petition. Shaw v. Mize, No. 2:09-CV-

      325-JMS-WGH (S.D. Ind. February 16, 2012). The United States Court of

      Appeals for the Seventh Circuit vacated the judgment of the district court, held

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018   Page 2 of 9
      that the performance of Shaw’s appellate counsel was deficient because the

      sufficiency argument that was raised was so weak that pursuing it was the

      equivalent of filing no brief at all, that an argument about the validity of the

      State’s effort to amend the indictment would have been materially stronger than

      the sufficiency of the evidence argument that was raised, and that Shaw

      suffered prejudice as a result. Shaw v. Wilson, 721 F.3d 908, 914-919 (7th Cir.

      2013), reh’g denied, reh’g en banc denied, cert. denied, 134 S. Ct. 2818 (2014). The

      Court remanded “with instructions to issue a writ of habeas corpus unless the

      State of Indiana grants Shaw a new appeal within 120 days after issuance of the

      mandate.” Id. at 919-920.


[5]   On December 19, 2013, after the Seventh Circuit had denied the State’s

      petitions for rehearing and rehearing en banc, the State filed under Shaw’s post-

      conviction appeal cause number an emergency notice of pending proceedings

      before the United States Supreme Court following federal habeas corpus

      proceedings. Shaw v. State, 82 N.E.3d 886, 892 (Ind. Ct. App. 2017), reh’g

      denied, trans. denied. In that notice, the State asked this Court to grant Shaw a

      new direct appeal by January 3, 2014, which was 120 days from the date that

      the Seventh Circuit had issued its appellate mandate. Id. The State also asked

      that we hold the new appeal in abeyance so that it could pursue a writ of

      certiorari from the United States Supreme Court. Id. On December 31, 2013,

      we ordered the Clerk to open a direct appeal under a new appellate cause

      number and to hold that appeal in abeyance pending further order. Id. On




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018   Page 3 of 9
      June 17, 2014, after the United States Supreme Court denied certiorari, the

      State filed a notice of termination of proceedings. Id.


[6]   In the new direct appeal, this Court addressed Shaw’s argument that the trial

      court erred when it allowed the State to amend the charging information

      seventeen months after the omnibus date. Id. at 894. We concluded that Shaw

      had failed to demonstrate prejudice to his substantial rights resulting from the

      untimeliness of the amendment and that the trial court did not err when it

      allowed the State to amend the charging information. Id. at 897.


[7]   On March 5, 2018, Shaw filed a petition for post-conviction relief alleging an

      untimely amendment of the charging information and that his appellate

      attorney failed to properly argue the issues. On March 9, 2018, the State filed a

      Motion to Dismiss Successive Petition for Post-Conviction Relief. That same

      day, the post-conviction court dismissed Shaw’s petition. Specifically, the

      court’s order states:


              The Court finds that the Petition for Post-Conviction Relief filed
              on March 5, 2018, is a successive petition for post-conviction
              relief, inasmuch as the Petitioner’s previous Petition for Post-
              Conviction Relief was denied on March 5, 2008, and that the
              Petition has not been authorized to be filed in this Court pursuant
              to Rule 1, Section 12 of the Indiana Rules of Procedure for Post-
              Conviction Remedies.


      Appellant’s Appendix Volume 2 at 20.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018   Page 4 of 9
                                                    Discussion

[8]    The issue is whether the post-conviction court erred in dismissing Shaw’s

       petition. Shaw argues that “with respect to ‘the conviction’ or ‘the sentence’

       within the meaning of Rule 1, § 1(a), a post-conviction petition collaterally

       attacking the new conviction or new sentence is simply not even a second

       petition, much less a successive one.” Appellant’s Brief at 36. He asserts that

       “after obtaining post-conviction relief, state or federal, a person has been re-

       convicted or re-sentenced, an entirely new conviction and/or sentence results.”

       Id. He argues that if the Post-Conviction Rules do not provide the right to file a

       petition, then the Due Process and Equal Protection Clauses of the United

       States Constitution allow him to do so. Shaw also contends that, if he may not

       file a fresh post-conviction petition as of right under Post-Conviction Rule 1, §

       1, then he did not, in fact, have a “new direct appeal” of his conviction. Id. at

       43.


[9]    The State asserts that Shaw is raising the same claims challenging the same

       judgment that were denied in his first petition for post-conviction relief and that

       his conviction and sentence have never been vacated or reversed in federal or

       state court. It argues that Shaw’s arguments that he is constitutionally entitled

       to file another post-conviction petition without seeking authorization are

       meritless. The State also contends that res judicata applies because the claims

       Shaw raised in his successive petition have been adjudicated by this Court.


[10]   “Post-Conviction Rule 1(12) provides that a second, or successive, petition for

       post-conviction relief must first be authorized by” this Court or the Indiana
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018   Page 5 of 9
       Supreme Court “before it can be filed.”1 Lacey v. State, 829 N.E.2d 518, 519 n.2

       (Ind. 2005).


[11]   We find the Indiana Supreme Court’s order in Azania v. State, 738 N.E.2d 248

       (Ind. 2000), to be instructive. In Azania, Zolo Agona Azania f/k/a Rufus

       Averhart was convicted of murder and sentenced to death. 738 N.E.2d at 249.

       That judgment was affirmed on direct appeal, Averhart v. State, 470 N.E.2d 666

       (Ind. 1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2051 (1985), but the death

       sentence was vacated in post-conviction proceedings in the Indiana Supreme

       Court and a new penalty phase proceeding was ordered. Averhart v. State, 614

       N.E.2d 924 (Ind. 1993), reh’g denied. Azania was again sentenced to death at




       1
           Specifically, Ind. Post-Conviction Rule 1(12) provides:

                  (a) A petitioner may request a second, or successive, Petition for Post-Conviction Relief by
                  completing a properly and legibly completed Successive Post-Conviction Relief Rule 1
                  Petition Form in substantial compliance with the form appended to this Rule. Both the
                  Successive Post-Conviction Relief Rule 1 Petition Form and the proposed successive
                  petition for post-conviction relief shall be sent to the Clerk of the Indiana Supreme Court,
                  Indiana Court of Appeals, and Tax Court.
                  (b) The court will authorize the filing of the petition if the petitioner establishes a
                  reasonable possibility that the petitioner is entitled to post-conviction relief. In making this
                  determination, the court may consider applicable law, the petition, and materials from the
                  petitioner’s prior appellate and post-conviction proceedings including the record, briefs and
                  court decisions, and any other material the court deems relevant.
                  (c) If the court authorizes the filing of the petition, it is to be (1) filed in the court where the
                  petitioner’s first post-conviction relief petition was adjudicated for consideration pursuant
                  to this rule by the same judge if that judge is available, and (2) referred to the State Public
                  Defender, who may represent the petitioner as provided in Section 9(a) of this Rule.
                  Authorization to file a successive petition is not a determination on the merits for any other
                  purpose and does not preclude summary disposition pursuant to Section (4)(g) of this Rule.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018                             Page 6 of 9
       this retrial and that new sentence was affirmed in the direct appeal from the

       retrial. Azania v. State, 730 N.E.2d 646 (Ind. 2000), reh’g denied.


[12]   By counsel, Azania filed a “Petition for Leave to File Petition for Successive

       Post-Conviction Relief and Application for Stay of Execution Date,”

       accompanied by the tender of a “Successive Petition for Post-Conviction

       Relief,” alleging newly discovered evidence relevant to the guilt phase of his

       murder trial. 738 N.E.2d at 249-250. The Indiana Supreme Court granted this

       petition on October 12, 2000. Id. at 250.


[13]   In addition, Azania tendered a “Notice of Filing Post-Conviction Petition in

       Superior Court and Application for Stay of Execution Date, or in the

       Alternative, Petition for Successive Post-conviction Relief and Application for

       Stay of Execution Date” (“Notice of Filing”). Id. In response, the State filed

       “State’s Response to Petition for Leave to File Successive Petition for Post-

       Conviction Relief.” Id. Finally, Azania filed “Petitioner’s Reply to the State’s

       Response to Petition for Post-Conviction Relief and for Leave to File

       Successive Petition for Post-Conviction Relief.” Id. In an order addressing

       these filings, the Indiana Supreme Court held:


               This Court’s rules permit a person convicted of a crime in an
               Indiana court to attack that conviction collaterally through a
               post-conviction proceeding. Ind. Post-Conviction Rule 1. As
               noted above, Azania has previously availed himself of that
               procedure. The rules also authorize a procedure for seeking a
               second or successive collateral review of a conviction and
               sentence. P-C.R. 1 § 12. In the “Notice of Filing,” Azania
               advises the Court that on September 14, 2000, a petition was filed

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018   Page 7 of 9
               in the trial court seeking post-conviction relief. The petition
               alleges generally that the attorneys who represented him during
               the retrial of the penalty phase proceedings and in the appeal
               therefrom did not provide him with the effective assistance of
               counsel to which he was entitled under the U.S. Constitution and
               raises additional claims concerning the retrial. Inasmuch as this
               petition sought successive post-conviction relief, it was
               procedurally improper to file the petition without authorization
               from this Court. P-C.R. 1 § 12. The Allen Superior Court is
               therefore directed to dismiss the “Petition for Post-Conviction
               Relief” that was filed on September 14, 2000.


       Id.


[14]   The Court stated: “Recognizing the procedural problem, Azania has asked in

       the alternative that this Court nevertheless authorize the filing of the successive

       petition seeking post-conviction relief from the judgment rendered at the retrial

       of the penalty phase proceeding and affirmed on appeal.” Id. The Court then

       found that the pleadings conclusively showed that Azania was entitled to no

       relief on some of his claims but authorized him to present the issue of whether

       an error in the Allen County jury selection system denied him his U.S.

       Constitutional rights to a fair trial, due process, and equal protection of the

       laws. Id. The Court ultimately ordered the trial court to dismiss the “Petition

       for Post-Conviction Relief” that was filed on September 14, 2000, authorized

       the filing of Azania’s successive petition for post-conviction relief only for the

       purpose of presenting his claim regarding the Allen County jury selection

       system, and ordered that the successive petition shall be consolidated with the

       proceedings in Azania’s separate successive petition for post-conviction relief


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018   Page 8 of 9
       alleging newly discovered evidence relevant to the guilt phase of his murder

       trial, which was authorized to be filed by the Court’s October 12, 2000 order.

       Id. at 252.


[15]   We note that Azania’s sentence was actually vacated in post-conviction

       proceedings and that, after re-sentencing, the Indiana Supreme Court held that

       it was procedurally improper for Azania to file a petition for post-conviction

       relief without authorization. Thus, for purposes of arguing that a request for a

       successive petition was not required, Azania presented a stronger case than

       Shaw presents here because Shaw’s sentence was not vacated and he was

       merely permitted to pursue a new direct appeal. In light of Azania and the

       opportunity to request a successive petition for post-conviction relief under Ind.

       Post-Conviction Rule 1(12), we cannot say that the dismissal violated Shaw’s

       rights or that the post-conviction court erred in dismissing Shaw’s petition. See

       also Post-Conviction Rule Appendix (Instructions to Form for Successive Post-

       Conviction Relief Rule 1 Petitions state: “If you have previously filed a Petition

       for Post-Conviction Relief directed to this conviction or these convictions and

       the earlier petition was decided on the merits, you must fill out this form and

       file it along with your Petition.”).


                                                   Conclusion

[16]   For the foregoing reasons, we affirm the post-conviction court’s order.


[17]   Affirmed.


       Altice, J., and Tavitas, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1181 | October 11, 2018   Page 9 of 9
