MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Apr 05 2016, 9:45 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Tommy Borders                                             Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General of Indiana

                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tommy Borders,                                            April 5, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          11A05-1502-PC-68
        v.                                                Appeal from the Clay Superior
                                                          Court
State of Indiana,                                         The Honorable J. Blaine Akers,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          11D01-1311-PC-853



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016           Page 1 of 24
[1]   Tommy Borders appeals the denial of his petition for post-conviction relief.

      Borders raises two issues which we revise and restate as:


        I.    Whether Borders was denied the effective assistance of appellate counsel;
              and

       II.    Whether Borders was deprived of a procedurally fair post-conviction
              hearing.

      We affirm.

                                       Facts and Procedural History

[2]   In January 2009, Borders, Tabitha Golden, and her daughter lived in a

      residence in Clay County. Borders and Golden were unemployed and kept

      methamphetamine in a black vinyl bag.


[3]   On January 5, 2009, Clay County Sheriff’s Narcotics Detective Jerry Siddons

      went to Borders’s residence around 4:00 p.m. regarding a separate

      investigation. While there, Detective Siddons detected the odor of burnt

      marijuana as well as odors consistent with the use of methamphetamine, and he

      ended his contact with Borders.


[4]   Around 9:00 p.m., Cassandra “Susie” McDaniel, who had known Golden for

      years, went to Borders’s residence. Trial Transcript at 735. McDaniel had

      previously babysat for Golden’s child in return for methamphetamine, Borders

      and Golden had previously provided methamphetamine to her, and Golden

      and McDaniel used McDaniel’s methamphetamine that day.


[5]   The same day, Officer Jeremy Mace conducted a traffic stop of Borders’s

      vehicle and requested the presence of Brazil City Police Officer Kenny Hill.
      Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 2 of 24
      Officer Mace requested that Officer Hill conduct a dog sniff around Borders’s

      vehicle because he said that he saw Borders and his passenger digging around in

      the car. Officer Hill’s dog gave a positive indication on the vehicle. Officer Hill

      detected a chemical smell around the car when he walked his dog around and

      then could smell the odor of burnt marijuana coming from Borders when he

      exited the vehicle.


[6]   Detective Siddons and Deputy James Switzer also responded to the scene.

      While speaking with Borders, Detective Siddons smelled the odor of burnt

      marijuana. Deputy Switzer also detected the odor of burnt marijuana and a

      chemical odor he had previously detected in the presence of either the ingestion

      or manufacture of methamphetamine. The police conducted a search of

      Borders’s vehicle and did not find any drugs but seized $2,930.


[7]   At 1:45 a.m. on January 6, 2009, the police obtained a search warrant for

      Borders’s residence, and the police executed the warrant at 2:19 a.m. They

      discovered Golden, her child, and McDaniel within the residence. The search

      of the house revealed scales and paraphernalia, including smoking pipes and

      rolling papers, a hand-rolled marijuana cigarette, hypodermic needles, Q-tips, a

      metal spoon, and two bags of an off-white powdery substance later determined

      to be methamphetamine, weighing 29.02 grams.


[8]   The State charged Borders with Count I, possession of methamphetamine as a

      class A felony; Count II, possession of methamphetamine as a class C felony;

      Count III, maintaining a common nuisance as a class D felony; Count IV,


      Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 3 of 24
       possession of marijuana as a class A misdemeanor; Count V, possession of

       paraphernalia as a class A misdemeanor; and Count VI, being an habitual

       substance offender.


[9]    In November 2009, the court held a jury trial, at which the State presented the

       testimony of Detective Siddons, Officer Hill, Officer Mace, Golden, and

       McDaniel.


[10]   During closing argument, the prosecutor stated without objection:

               I told you at the beginning in opening statement what a pox
               methamphetamine is on a community. You have seen victims of
               that pox here. You have seen Susie (phonetic) McDaniel. That
               was a woman who’s 32 years of age. And you folks can see what
               – have seen with your own eyes what 15 years of
               methamphetamine use did to her. You’ve seen Tabitha Golden.
               You’ve seen what methamphetamine use has done. She’s lost
               her child, and of course, that child is another victim of
               methamphetamine. The families of the defendant, the families of
               these witnesses, they’re victims, as is this community as a whole.
               You have citizen law enforcement officers in this community
               who are out there risking their lives to save the victims, save the
               community, and actually to help and save those who violate the
               laws.


       Id. at 806-808.


[11]   The prosecutor stated that “there are certain defenses that could be filed by a

       defendant that would cause us to have to say it happened at a particular time.”

       Id. at 816. Borders’s trial counsel objected, and the trial court admonished the

       jury that statements of counsel were not evidence, that the statements are

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 4 of 24
       simply an argument to persuade them, and that they can judge the evidence and

       the laws presented to them. The court then stated: “And with that, I will

       overrule the objection.” Id. at 817.


[12]   The prosecutor stated:


               The one thing we know is – about Susie McDaniel is this: We
               know that in the morning following her arrest, she gave a
               statement to Detective Siddons that was videotaped. And you
               heard testimony that a copy of that videotape was provided to the
               defense counsel. If she had given any information in that video
               statement that she contradicted in her testimony before you, you
               surely would have heard about it. There was no such evidence
               that she had given any prior inconsistent statement to the
               statement she testified to before you. Secondly, if there was any
               independent evidence that anything that she had said in that
               video statement given to the defendant’s counsel was wrong or
               incorrect, that evidence should have been presented to you. So,
               in other words, is – was there anyone who contradicted what
               [McDaniel] testified to? They have her statement, they knew
               what she said, yet no evidence was presented to contradict what
               she had told Detective Siddons either on the night following the
               arrest or in regard to the testimony she presented here.


       Id. at 833-835.


[13]   The prosecutor later stated:

               Finally, we presented evidence of motive. Why did we not
               introduce the money, hundred dollar bills? To show the
               defendant’s motive for having this methamphetamine. His
               motive was to use it and sell it. The evidence of using it and
               having it to sell it is the money and the electronic scales that was
               used to measure it out. If he were just a user, he wouldn’t need

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 5 of 24
               that in his little black bag. That’s why we introduced evidence of
               his unemployment, and that’s why we introduced Susie’s
               testimony that she had seen it, the black bag of Tommy’s, lots of
               times.


       Id. at 837-838.


[14]   During defense counsel’s closing argument, the prosecutor objected, and the

       court again told the jury that statements of counsel were not evidence, that they

       are simply arguments to attempt to persuade them, that “you have observed the

       evidence by the testimony and the exhibits given, and you should consider on

       that evidence and not on the statements of counsel.” Id. at 867. Defense

       counsel later stated: “Mr. Borders is not of the – he’s not some scourge of your

       community. He’s a fellow citizen. He’s a part of your community.” Id. at 871.


[15]   Following defense counsel’s closing argument, the court again admonished the

       jury and stated:


               And before [the prosecutor] finishes his closing statement, ladies
               and gentlemen of the jury, I’m going to admonish you at this
               time that closing statements, there has – go ahead. In closing
               statements by counsel to this point, there may have been an
               inference made that the defendant was dealing
               methamphetamine. You will be given instructions as to the exact
               five charges that you are to consider and all the elements thereof.
               And I would admonish you and tell you that he is not charged
               with dealing methamphetamine and you should not consider any
               inference, if there has been any such inference made. And
               further, you are to judge this case based upon the evidence that’s
               been presented. You may make any inferences therefrom for the
               charges that have been filed against the defendant.


       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 6 of 24
       Id. at 872-873.


[16]   During the prosecutor’s rebuttal, he stated: “It’s not fair to have

       methamphetamine in the community doing the things that it’s doing to children

       and families affected.” Id. at 876-877. Defense counsel objected, and the court

       overruled the objection.


[17]   The prosecutor later stated:


               [Golden] was in here not wanting to have to say the things she
               had to say, but she’d already testified before Judge Akers to these
               odd questions. She didn’t want to, but that doesn’t mean they’re
               untruthful. And was there any evidence introduced by the
               defendant that those statements were untruthful? Not an iota. It
               wasn’t just Detective Siddons that smelled it. It was Officer Hill
               at the traffic stop that smelled the meth and the marijuana. It
               was Clay County’s drug recognition expert, Deputy Switzer, who
               smelled these drugs. And you know who was never mentioned
               by defense counsel? Onya (phonetic), the certified drug testing
               dog. Silence. Did you hear counsel ever address whether there
               was methamphetamine at that residence? Silence. We know it’s
               meth. We knew it was an ounce of meth. We know it’s at his
               residence. Now, the question is, based on the inferences and
               evidence, did he know it was there? The inferences and
               evidence, two persons who testify, the smells. Did you ever hear
               of any syringes and paraphernalia in the house? Did you ever
               hear them mentioned? Silence. This is a tragic story. This isn’t
               we’re on a wild goose chase to persecute people. Our life
               experiences tell us what methamphetamine does and does to a
               community.


       Id. at 879-881.



       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 7 of 24
[18]   Following the closing arguments, the court instructed the jury that statements

       made by the attorneys were not evidence, that their verdict should be based on

       the law and the facts as they find them, that Borders was not required to present

       any evidence, and that no defendant may be compelled to testify.


[19]   Following the court’s instructions and outside the presence of the jury, the court

       stated that during closing argument, defense counsel approached the court, and

       the court instructed her that it would reserve her right to make a motion prior to

       the jury beginning its deliberations. Borders’s counsel then asked the court to

       declare a mistrial based on the prosecutor’s statements in closing that the

       charges were appropriate because the prosecutor was duly elected, that

       methamphetamine has an impact in the community, and that law enforcement

       officers were risking their lives. The court denied the motion for a mistrial.


[20]   The jury found Borders guilty of Count I, possession of methamphetamine as a

       class A felony; Count II, possession of methamphetamine as a class C felony;

       Count III, maintaining a common nuisance as a class D felony; and Count V,

       possession of paraphernalia as a class A misdemeanor. The jury found Borders

       not guilty of Count IV, possession of marijuana as a class A misdemeanor.


[21]   The court then proceeded to the second phase of the trial addressing whether

       Borders was an habitual substance offender, and Borders waived his right to a

       jury trial on the second phase. The court found Borders to be an habitual

       substance offender. The court sentenced him to an aggregate term of forty-five

       years of imprisonment.


       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 8 of 24
[22]   On appeal, Borders’s appellate counsel argued that there was no probable cause

       to support the issuance of the search warrant, the trial court abused its

       discretion in admitting evidence seized during the traffic stop, and the trial

       court improperly sentenced Borders. Borders v. State, No. 11A05-1001-CR-203,

       slip op. at 2 (Ind. Ct. App. April 18, 2011), trans. denied. We affirmed. Id.

       With respect to the search warrant, we observed that the statement of an

       unidentified informer describing the means by which Borders acquired the

       methamphetamine and the assumptions of a police detective regarding

       Borders’s dealing methamphetamine were insufficient but that the officers’

       observations of strong marijuana odors and odors consistent with the

       manufacturing of methamphetamine coming from Borders’s home were

       sufficient to support a finding of probable cause. Id. at 4. As to the traffic stop,

       the court held that the narcotics detection dog’s alert on the exterior of

       Borders’s vehicle to the presence of contraband supplied the probable cause

       necessary for further police investigation of the contents of Borders’s vehicle.

       Id. at 8. Borders’s appellate counsel filed a petition for rehearing and a petition

       for transfer, both of which were denied.


[23]   On October 13, 2011, Borders filed a pro se petition for post-conviction relief.

       On June 27, 2013, Borders filed an amended petition and alleged that he

       received ineffective assistance of appellate counsel and asserted that “[a]ppellate

       counsel failed to raise . . . the issue of improper argument by the prosecuting

       attorney. Specifically, the prosecution vouched for the credibility of the

       investigation and the state’s witnesses.” Appellant’s Appendix at 30. On July


       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 9 of 24
       3, 2013, Borders, by counsel, filed a motion to amend his original petition filed

       on October 13, 2011, by substituting the petition filed on June 27, 2013. On

       July 9, 2013, the court granted Borders’s motion to substitute the June 27, 2013

       petition.


[24]   On January 29, 2014, an evidentiary hearing was held. During the hearing,

       Borders’s appellate counsel testified, and when asked whether he considered

       raising any other issues on direct appeal, he stated:


               Yes, . . . prior to my appointment, I had . . . perfected probably . .
               . over a hundred and fifty (150) uh appellate briefs and probably a
               hundred (100), hundred and fifty (150) or more trial, uh trial
               cases on . . . I reviewed the . . . record of proceedings and, and I
               have uh, reviewing my personal notes I have about, I believe
               almost fifty (50) pages that er [sic] in excess of fifty (50) pages of
               a handwritten notes regarding . . . the transcript. I have about
               five (5) pages of . . . hot, potential issues that I considered raising
               and . . . researched the merits of raising and . . . not raising and
               after, as part of my process and determining what issues to raise
               on the appeal, I narrowed those the issues as a strategy decisions
               [sic] down to the three (3) issues that I raised on appeal.


       Post-Conviction Transcript at 8. After Borders’s post-conviction counsel

       referred to the beginning of the prosecutor’s closing argument and asked if he

       made any notation of it, appellate counsel stated:


               I did, I was aware of . . . that issue in the final argument, in those
               those [sic] object . . . or those issues as I recall were not objected
               to by . . . trial counsel and I decided not to raise them as
               fundamental error because I thought the issues that I rose were
               much more substantial if we had won on the suppression issues


       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 10 of 24
               then everything would have been moot and a new trial would
               have been granted.


       Id. at 9. Borders’s post-conviction counsel referenced other parts of the

       prosecutor’s closing argument, and appellate counsel stated:

               Yes, I’d considered them as issues, and then again, I didn’t
               consider those to be in terms of winning issues, I didn’t consider
               those to be of the same magnitude as issues regarding the
               suppression. An . . . and over the years the Appellate Courts
               have made it clear, that on appeal they desire you to be as
               succinct as possible and raise your best issues put your . . . best
               foot forward and raise the issues that you consider to be the
               strongest and uh, that if granted lead to a reversal and . . . it was
               in that strategy decision in my opinion that I raised the three (3)
               issues that I thought were most likely to win a reversal.


       Id. at 9-10.


[25]   Borders’s post-conviction counsel asked appellate counsel whether he felt the

       issues “that the prosecutor, say vouching for the witnesses, in pages eight oh

       three (803) to um eight oh seven (807) and also . . . (inaudible) new evidence

       being a fifth (5th) amendment violation on page eight thirty four (834) and eight

       seventy-seven (877), you thought those were issues, just not the strongest

       issues?” Id. at 10. Appellate counsel stated: “Yes, yes.” Id.


[26]   Borders’s post-conviction counsel asked to amend the petition for post-

       conviction relief to allege that trial counsel was ineffective on the same grounds

       that appellate counsel was ineffective. The court allowed Borders leave to

       amend the petition. On February 24, 2014, post-conviction counsel filed a

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 11 of 24
       notice informing the court that he would not be amending the petition for post-

       conviction relief or requesting to present any further evidence.


[27]   On January 23, 2015, the court denied Borders’s petition for post-conviction

       relief. Specifically, the court stated:


               In support of its ruling, the Court finds that [Borders] has failed
               to prove his request for relief by a preponderance of evidence in
               that there is no sufficient evidence presented the appellate
               counsel’[s] performance was deficient, no sufficient evidence that
               the performance fell below the objective standard of
               reasonableness, and that there is no sufficient evidence the
               performance contained errors so serious it resulted in a denial of
               [Borders’s] 6th Amendment rights. Further, the Court finds there
               is no error in the appellate counsel’s performance that the result
               of any such error(s) would have caused a different outcome.


               Also, the Court finds that the trial counsel did not object to
               prosecutorial statements which [Borders] claims constituted
               misconduct. There is not sufficient evidence the prosecutorial
               statements claimed by [Borders] constituted fundamental error.
               The prosecutorial statements did not make a fair trial for
               [Borders] impossible.


       Appellant’s Appendix at 93.


                                                    Discussion

                                                          I.


[28]   The first issue is whether Borders was denied the effective assistance of

       appellate counsel. Before discussing Borders’s allegations of error, we observe

       that the purpose of a petition for post-conviction relief is to raise issues

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 12 of 24
       unknown or unavailable to a defendant at the time of the original trial and

       appeal. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). A post-conviction

       petition is not a substitute for an appeal. Id. Further, post-conviction

       proceedings do not afford a petitioner a “super-appeal.” Id. The post-

       conviction rules contemplate a narrow remedy for subsequent collateral

       challenges to convictions. Id. If an issue was known and available but not

       raised on appeal, it is waived. Id.


[29]   We also note the general standard under which we review a post-conviction

       court’s denial of a petition for post-conviction relief. The petitioner in a post-

       conviction proceeding bears the burden of establishing grounds for relief by a

       preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

       Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

       conviction relief, the petitioner stands in the position of one appealing from a

       negative judgment. Fisher, 810 N.E.2d at 679. 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. “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. In this review, we accept findings of fact unless

       clearly erroneous, but we accord no deference to conclusions of law. Id. The

       post-conviction court is the sole judge of the weight of the evidence and the

       credibility of witnesses. Id.




       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 13 of 24
[30]   Borders argues that his appellate counsel was ineffective for failing to raise the

       issue of prosecutorial misconduct as fundamental error. He argues that the

       prosecutor’s statements regarding the community and law enforcement during

       closing argument were an attempt to improperly arouse the passion and

       prejudice of the jury, that the prosecutor’s statements regarding the appearance

       of McDaniel and Golden were an improper comment on their condition, that

       the prosecutor’s statements that his motive was to sell the methamphetamine

       was improper because he was not charged with dealing methamphetamine, and

       that the prosecutor improperly commented on his right to remain silent.


[31]   The State argues that Borders’s petition focused only on the prosecutor’s

       statements that “vouched for the credibility of the investigation and the state’s

       witnesses.” Appellee’s Brief at 11. The State asserts that Borders’s arguments

       on appeal with respect to the other statements made by the prosecutor are

       waived for failure to raise them in the petition for post-conviction relief. The

       State also contends that Borders’s claims fail waiver notwithstanding.


[32]   Borders’s petition for post-conviction relief alleged only the ineffective

       assistance of appellate counsel as the ground for relief and in the portion of the

       petition listing the facts which support the ground for relief stated merely:

       “Appellate counsel failed to raise on direct appeal the issue of improper

       argument by the prosecuting attorney. Specifically, the prosecution vouched for

       the credibility of the investigation and the state’s witnesses.” Appellant’s

       Appendix at 30. To the extent Borders challenges his appellate counsel’s failure

       to raise the prosecutor’s other statements, we find those arguments waived

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 14 of 24
       because his petition challenged only appellate counsel’s failure to challenge the

       prosecutor’s alleged vouching for the credibility of the investigation and the

       State’s witnesses. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues

       not raised in the petition for post-conviction relief may not be raised for the first

       time on post-conviction appeal.”), reh’g denied, cert. denied, 535 U.S. 1061, 122 S.

       Ct. 1925 (2002); Post-Conviction Rule 1(8) (“All grounds for relief available to

       a petitioner under this rule must be raised in his original petition.”).


[33]   Even assuming that Borders properly raised all of the prosecutor’s statements,

       we cannot say that reversal is warranted. 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. French v. State, 778 N.E.2d 816, 824 (Ind. 2002)

       (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g

       denied). A counsel’s performance is deficient if it falls below an objective

       standard of reasonableness based on prevailing professional norms. 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). Failure to satisfy either prong will cause the

       claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel

       claims can be resolved by a prejudice inquiry alone. Id. We apply the same

       standard of review to claims of ineffective assistance of appellate counsel as we

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 15 of 24
       apply to claims of ineffective assistance of trial counsel. Williams v. State, 724

       N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied, 531 U.S. 1128, 121 S.

       Ct. 886 (2001).


[34]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

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

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986).


[35]   Ineffective assistance of appellate counsel claims fall into three categories: (1)

       denial of access to an appeal; (2) waiver of issues; and (3) failure to present

       issues well. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013). “To show that

       counsel was ineffective for failing to raise an issue on appeal thus resulting in

       waiver for collateral review, ‘the defendant must overcome the strongest

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

       Id. (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 260-261 (Ind. 2000), reh’g

       denied, cert. denied, 534 U.S. 1164, 122 S. Ct. 1178 (2002)). “To evaluate the

       performance prong when counsel waived issues upon appeal, we apply the

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 16 of 24
       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.” Id. (quoting Timberlake v. State, 753 N.E.2d 591, 605-

       606 (Ind. 2001), reh’g denied, cert. denied, 537 U.S. 839, 123 S. Ct. 162 (2002)).

       “If the analysis under this test demonstrates deficient performance, then we

       evaluate the prejudice prong which requires an examination of 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.’” Id. (quoting Bieghler v.

       State, 690 N.E.2d 188, 194 (Ind. 1997), reh’g denied, cert. denied, 525 U.S. 1021,

       119 S. Ct. 550 (1998)).


[36]   Generally, in reviewing a properly preserved claim of prosecutorial misconduct,

       we determine: (1) whether the prosecutor engaged in misconduct, and if so, (2)

       whether the misconduct, under all of the circumstances, placed the defendant in

       a position of grave peril to which he should not have been subjected. Cooper v.

       State, 854 N.E.2d 831, 835 (Ind. 2006). Whether a prosecutor’s argument

       constitutes misconduct is measured by reference to caselaw and the Rules of

       Professional Conduct. Id. The gravity of peril is measured by the probable

       persuasive effect of the misconduct on the jury’s decision rather than the degree

       of impropriety of the conduct. Id. Where, as conceded by Borders here, a

       claim of prosecutorial misconduct has not been properly preserved, our

       standard of review is different from that of a properly preserved claim. Id.

       More specifically, the defendant must establish not only the grounds for the

       misconduct, but also the additional grounds for fundamental error. Id.

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 17 of 24
[37]   Fundamental error is an extremely narrow exception that allows a defendant to

       avoid waiver of an issue. Id. It is error that makes “a fair trial impossible or

       constitute[s] clearly blatant violations of basic and elementary principles of due

       process . . . present[ing] an undeniable and substantial potential for harm.” Id.

       “This exception is available only in ‘egregious circumstances.’” Brown v. State,

       929 N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068

       (Ind. 2003)), reh’g denied. “Fundamental error is meant to permit appellate

       courts a means to correct the most egregious and blatant trial errors that

       otherwise would have been procedurally barred, not to provide a second bite at

       the apple for defense counsel who ignorantly, carelessly, or strategically fail to

       preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[38]   We note that Borders’s appellate counsel testified that he narrowed the issues

       down to the three issues raised on appeal as a strategic decision. Further, as

       discussed, the trial court admonished the jury multiple times and informed

       them that the statements of counsel were not evidence, that they could judge

       the evidence and the laws presented to them, and that they should consider the

       evidence and not the statements of counsel. During final instructions, the court

       stated: “Statements made by the attorneys are not evidence,” and “[y]our

       verdict should be based on the law and the facts as you find them. It should not

       be based on sympathy or bias.” Trial Transcript at 904, 907. The court also

       stated: “And I would admonish you and tell you that [Borders] is not charged

       with dealing methamphetamine and you should not consider any inference, if

       there has been any such inference made.” Id. at 872-873.


       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 18 of 24
[39]   As for Borders’s argument that his appellate counsel was ineffective for failing

       to raise the prosecutor’s comments that allegedly commented on his right to

       remain silent, and to the extent that Borders cites Davis v. State, 685 N.E.2d

       1095 (Ind. Ct. App. 1997), we do not find that case requires reversal. In Davis,

       a police officer testified that the defendant admitted “I took the car,” when he

       was arrested for auto theft. 685 N.E.2d at 1097. During closing argument, the

       State argued that the defendant “said he took the car. There is nothing to

       controvert that. There is no evidence saying that isn’t so. There’s not even an

       argument that he didn’t say that.” Id. On appeal, we held that “before

       determining whether a prosecutor’s comment is improper, it must first be

       determined whether a reasonable jury could have interpreted the comment as a

       suggestion to infer the defendant’s guilt from his failure to testify.” Id. at 1098.

       We observed that the prosecutor’s comments called attention to the defendant’s

       alleged admission and pointed out that there was no claim to the contrary and

       the prosecutor indirectly brought to the jury’s attention the fact that the

       defendant did not deny this allegation. Id. We noted that the defendant was

       the only one who could have denied that this statement was made because only

       he and the police officer were present at the time. Id. Accordingly, we

       concluded that a reasonable jury could have taken that comment as an

       invitation to consider the defendant’s failure to testify as an inference of guilt

       and the prosecutor’s comments were improper. Id. We then observed that the

       defendant failed to object and addressed fundamental error as follows:

               We have held that where a prosecutor made no direct reference
               to a defendant’s decision to remain silent, but instead
       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 19 of 24
               emphasized the uncontradicted nature of the testimony, there
               was no fundamental error. Channell v. State, 658 N.E.2d 925, 932
               (Ind. Ct. App. 1995), trans. denied. In addition, the Indiana
               Supreme Court has indicated that “if in its totality the
               prosecutor’s comment is addressed to other evidence rather than
               the defendant’s failure to testify, it is not grounds for reversal.”
               Hopkins v. State, 582 N.E.2d 345, 348 (Ind. 1991), reh. denied. In
               each of the prosecutor’s comments complained of by Davis, the
               prosecutor emphasized the lack of contradictory evidence and
               made no direct mention of the defendant’s failure to testify.
               Davis was not placed in grave peril by these comments, and it is
               improbable that the prosecutor’s comments, taken in context,
               would have had a persuasive effect on the jury’s decision. We
               conclude that the prosecutor’s comments did not constitute
               fundamental error.


       Id. at 1098-1099.


[40]   Without citation to the record, Borders asserts that the prosecutor specifically

       highlighted the fact that Borders introduced no evidence that McDaniel’s

       statements were not truthful and that the only one who could have disproved or

       discredited McDaniel’s statements was Borders. McDaniel testified that

       Borders had previously provided methamphetamine to her and that Borders

       kept meth in his bag, but Borders does not cite to the record or develop an

       argument that only he could have contradicted her testimony. Thus, we cannot

       say that Borders has demonstrated that the prosecutor’s comments were

       improper similar to those in Davis. Further, as in Davis, the prosecutor’s

       comments complained of emphasized the lack of contradictory evidence and

       made no direct mention of Borders’s failure to testify. Further, the trial court

       here stated:

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 20 of 24
               The defendant is not required to present any evidence to prove
               innocence or to prove or to explain anything. The burden is
               upon the State to prove beyond a reasonable doubt that the
               defendant is guilty of the crimes charged.


       Trial Transcript at 898-899. The court also gave the following instruction to the

       jury: “No defendant may be compelled to testify. The defendant has no

       obligation to testify. If the defendant did not testify, you must not consider this

       in any way.” Id. at 903.


[41]   Under the circumstances, we cannot say that Borders was placed in grave peril

       by the prosecutor’s comments, and it is improbable that the prosecutor’s

       comments, in light of the court’s admonishments and instructions, would have

       had a persuasive effect on the jury’s decision. We cannot say that the

       prosecutor’s comments constituted fundamental error or that appellate counsel

       was ineffective in failing to raise fundamental error based upon the prosecutor’s

       individual comments or their cumulative impact.


                                                          II.


[42]   The next issue is whether Borders was deprived of a procedurally fair post-

       conviction hearing. Borders argues that his post-conviction counsel’s failure to

       raise the issue of whether he was denied the effective assistance of trial counsel

       constitutes a due process violation. He appears to assert that he is not claiming

       that his post-conviction counsel was ineffective under the Sixth Amendment but

       that his post-conviction counsel violated his due process rights under the

       Fourteenth Amendment. In other words, “Borders is raising the claim that

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 21 of 24
       post-conviction counsel’s ineffectiveness extends to his equal protection rights,

       under the 14th Amendment, for counsel’s failure to raise an issue that was

       known to him at the time he argued the case.” Appellant’s Brief at 25. The

       State argues that Borders’s claim is not a cognizable claim for relief and that

       post-conviction counsel appeared and represented Borders in a procedurally fair

       setting.


[43]   The Indiana Supreme Court discussed performance by a post-conviction

       counsel as follows:

               This Court declared its approach to claims about performance by
               a post-conviction lawyer in Baum v. State, 533 N.E.2d 1200 (Ind.
               1989). We observed that neither the Sixth Amendment of the
               U.S. Constitution nor article 1, section 13 of the Indiana
               Constitution guarantee the right to counsel in post-conviction
               proceedings, and explicitly declined to apply the well-known
               standard for trial and appellate counsel of Strickland v.
               Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674
               (1984). Baum, 533 N.E.2d at 1201. The Baum Court noted that
               post-conviction pleadings are not regarded as criminal actions
               and need not be conducted under the standards followed in them.
               Id. We held unanimously that a claim of defective performance
               “poses no cognizable grounds for post-conviction relief” and that
               to recognize such a claim would sanction avoidance of legitimate
               defenses and constitute an abuse of the post-conviction remedy.
               Id. at 1200-01.


               We therefore adopted a standard based on principles inherent in
               protecting due course of law—one that inquires “if counsel in
               fact appeared and represented the petitioner in a procedurally fair
               setting which resulted in a judgment of the court.” Id. at 1201.
               As Justice DeBruler explained later, speaking for a majority of

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 22 of 24
               us, it is “not a ground for post-conviction relief that petitioner’s
               counsel in a prior post-conviction proceeding did not provide
               adequate legal assistance,” but such a contention could provide a
               prisoner with a basis for replying to a state claim of prior
               adjudication or abuse of process. Hendrix v. State, 557 N.E.2d
               1012, 1014 (Ind. 1990) (DeBruler, J., concurring).


       Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005).


[44]   At the post-conviction hearing, Borders’s post-conviction counsel introduced

       and the court admitted the trial record, the appellate briefs in the direct appeal,

       the petition for rehearing and petition for transfer filed by appellate counsel, and

       this court’s opinion on direct appeal. Post-conviction counsel called Borders’s

       appellate counsel and questioned him. Post-conviction counsel also filed

       proposed findings of fact and conclusions of law concluding that appellate

       counsel provided ineffective assistance.


[45]   Based upon the record, we cannot say that Borders was deprived of a

       procedurally fair post-conviction hearing. See Graves, 823 N.E.2d at 1197

       (affirming the post-conviction court’s denial of relief when post-conviction

       counsel appeared at the post-conviction relief hearing, directly examined the

       petitioner, and tendered affidavits).


                                                    Conclusion

[46]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Borders’s petition for post-conviction relief.


[47]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 11A05-1502-PC-68 | April 5, 2016   Page 23 of 24
Kirsch, J., and Mathias, J., concur.




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