MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Feb 12 2018, 9:44 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Adrian Edwards                                           Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Adrian Edwards,                                          February 12, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1702-PC-337
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-0408-PC-145104



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018            Page 1 of 18
                                             Case Summary
[1]   Pro-se Appellant-Petitioner Adrian Edwards (“Edwards”) appeals the denial of

      his petition for post-conviction relief, challenging his convictions for two counts

      of Murder, a felony,1 and one count of Conspiracy to Commit Murder, a Class

      A felony.2 We affirm.



                                                        Issues
[2]   Edwards articulates seven issues for review. We address those issues that are

      not waived, res judicata, or procedurally defaulted,3 which we consolidate and

      restate as the following three issues:


                 I.           Whether Edwards was denied the effective assistance of
                              trial counsel;




      1
          Ind. Code § 35-42-1-1.
      2
          I.C. § 35-41-5-2.
      3
        Post-conviction procedures do not afford the petitioner with a super-appeal, and not all issues are available.
      Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral challenges to convictions
      must be based on grounds enumerated in the post-conviction rules. Id. If an issue was known and available,
      but not raised on direct appeal, it is waived. Id. If it was raised on appeal, but decided adversely, it is res
      judicata. Id. Most free-standing claims of error are not available in a post-conviction proceeding because of
      these doctrines. Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). Thus, we do not address Edwards’s
      claim that the trial court erred in admitting a portion of a police officer’s testimony, which Edwards considers
      invasive of the jury’s province, except as it relates to a claim of ineffectiveness of counsel. Nor do we address
      Edwards’s claim that fundamental error occurred at sentencing in the denial of his right of allocution. He did
      not pursue this claim on direct appeal or at the post-conviction hearing, but summarily mentions the alleged
      deprivation in his appellate brief.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018              Page 2 of 18
              II.      Whether he was denied the effective assistance of appellate
                       counsel; and


              III.     Whether the post-conviction court abused its discretion in
                       the issuance of subpoenas for post-conviction witnesses.


                            Facts and Procedural History
[3]   The facts underlying Edwards’s convictions were recited by a panel of this

      Court on direct appeal, as follows:


              On May 29, 2004, Djuan Edwards (Djuan), Adrian’s cousin,
              shot Jermaine Foster and Michael Solomon, injuring Foster and
              killing Solomon. Foster called 911 for help and identified Djuan
              as the shooter. April Adkisson had seen the shooting and also
              called 911, describing the suspected shooter, the direction in
              which he fled, and his vehicle. At that time, Adkisson was
              dating Michael Moss, who knew Djuan. Foster, Moss, and
              Adkisson identified Edwards as the shooter.


              At some point following the shooting, Djuan spoke to Adrian
              about the witnesses, explained that he was planning to turn
              himself into the authorities, and said, “[n]o witnesses, no
              case….” Tr. P. 490, 597, 601, 679. On June 1, 2004, Djuan
              turned himself into the authorities, and on June 3, he learned that
              Foster, Moss, and Adkisson were listed as witnesses for the State.


              Djuan instructed Adrian, Brandon Hardiman, and Chris Ealy to
              notify him if they saw Moss or Foster. On June 10, 2004, officers
              discovered Moss, dead, in his front yard. He had been shot
              multiple times. Upon entering Moss’s residence, the officers
              discovered Adkisson, who was also dead and had sustained
              multiple gunshot wounds. That same morning, Hardiman was


      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 3 of 18
        awoken by Adrian, who stated that he had entered Moss’s home
        and “shot the bitch in the face…” Id. At 504, 590-91, 632, 653.


        On August 11, 2004, the State charged Adrian with two counts of
        murder and three counts of class A felony conspiracy to commit
        murder. On January 13, 2006, the State filed a notice of intent to
        offer recordings of Djuan’s telephone calls made from jail into
        evidence. Adrian objected, but on March 22, 2006, the trial court
        granted the State’s motion. At trial, Hardiman identified the
        voices of the individuals speaking on the recordings. Among
        other things, the recordings reveal that on June 2, 2004, Djuan
        asked Hardiman, “what y’all being doing—huntin’ and sh*t[?]”
        Id. At 529-30. Adrian told Djuan, “the only thing they got is no
        witness[es].” Id. At 531. Adrian also informed Djuan, “I’m
        tryin’ to have your back….” Id. On June 10, 2004, after officers
        discovered the bodies of Moss and Adkisson, Djuan told Ealy,
        “Well, you got to buy that one for me, too, man … for real cause
        that’s the last car I need…” Id. At 568, 570-71. Djuan went on
        to say, “but please man, make sure you do that for me,” and Ealy
        responded, “Yeah – I’m gonna buy it.” Id. At 571. Later that
        day, Djuan told Ealy that he needed to buy a blue car, which
        Ealy understood to mean that Foster was to be killed. Id. At 647-
        48.


        A three-day trial began on March 27, 2006, and on March 30, the
        jury found Adrian guilty as charged. On April 21, 2006, the trial
        court found that Adrian’s convictions for conspiracy to commit
        the murders of Moss and Adkisson merged, respectively, into his
        convictions for murdering those individuals. The trial court
        sentenced him to fifty-five years imprisonment for each murder
        conviction and to thirty years for the conspiracy conviction
        relating to Foster, to be served consecutively, for a total of 140
        years imprisonment.




Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 4 of 18
      Edwards v. State, No. 49A02-0705-CR-383, slip op at 1-2 (Ind. Ct. App. Mar. 24,

      2008), trans. denied.


[4]   On appeal, Edwards argued that the trial court erroneously admitted into

      evidence recordings of Djuan’s telephone calls made from jail and that there

      was insufficient evidence to support the murder and conspiracy convictions. Id.

      Edwards’s convictions were affirmed. Id.


[5]   On September 8, 2008, Edwards filed a petition for post-conviction relief.

      Subsequently, Edwards’s public defender withdrew representation; Edwards

      proceeded pro-se. On January 29, 2016, Edwards was granted leave to file an

      amended petition for post-conviction relief. Therein, Edwards alleged

      ineffectiveness of trial and appellate counsel and fundamental trial error. The

      post-conviction court conducted a hearing on March 1, 2016, at which brief

      testimony from trial counsel was heard. On February 1, 2017, the post-

      conviction court entered its findings, conclusions thereon, and order denying

      Edwards post-conviction relief. Edwards now appeals.



                                 Discussion and Decision
                 Post-Conviction Appeal Standard of Review
[6]   A defendant who has exhausted the direct appeal process may challenge the

      correctness of his or her conviction and sentence by filing a post-conviction

      petition. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). Post-conviction

      proceedings are civil in nature and a defendant must establish his claims by a

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 5 of 18
      preponderance of the evidence. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.

      2000). A petitioner who has been denied post-conviction relief appeals from a

      negative judgment, and to the extent that his appeal turns on factual issues, he

      must convince this Court that the evidence as a whole leads unerringly and

      unmistakably to a decision opposite that reached by the post-conviction court.

      Stevens, 770 N.E.2d at 745. We do not defer to the post-conviction court’s legal

      conclusions, but accept its factual findings unless they are clearly erroneous. Id.


                               Effectiveness of Trial Counsel
[7]   Edwards contends that his trial counsel was ineffective. As our Indiana

      Supreme Court has observed:


              [t]his Court reviews claims of ineffective assistance of counsel
              under the two components set forth in Strickland v. Washington,
              466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s
              representation fell below an objective standard of reasonableness,
              id. at 688, 104 S.Ct. 2052, and that the errors were so serious that
              they resulted in a denial of the right to counsel guaranteed the
              defendant by the Sixth Amendment, id. at 687, 104 S.Ct. 2052.
              Second, the defendant must show that the deficient performance
              prejudiced the defendant. Id. To establish prejudice, a defendant
              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. at 694, 104 S.Ct. 2052. A
              reasonable probability is a probability sufficient to undermine
              confidence in the outcome. Id.


      Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 6 of 18
[8]   First, Edwards claims that his trial counsel “fail[ed] to challenge Opinion

      Witness Testimony for Drug Codes and Jargon that were false and misleading

      in violation of the Article I, section 12, 13, and 23 of the Indiana Constitution

      and [the] 5th, 6th, and 14th Amendment[s] to the United States Constitution.”

      Appellant’s Brief at 5. He complains that Indianapolis Police Detective Wagers

      (“Det. Wagers”) provided testimony that was “incredible due to the fact Det.

      Wagers did not possess the Skills or the prior educational abilities in Voice

      recognition to determine the accuracy of the Identification of the persons

      through [the] Marion County jail phone system” and that Det. Wagers

      “testified about alleged Code Words that were used during phone calls to Order

      the killing of the victims in this case.” Appellant’s Brief at 8-9.


[9]   Edwards apparently refers to recorded telephone conversations discussed on

      direct appeal, as follows:


              Here, Hardiman, a cousin of Djuan and Adrian, and Ealy, a
              close friend, identified the caller as Djuan and identified the
              voices of Adrian and the other participants of the various
              recorded telephone conversations. Hardiman and Ealy were able
              to make the respective identifications based on their long
              acquaintances with Adrian and the other participants. The
              authentication was corroborated by Marion County Sheriff’s
              Department employees charged with running the jail telephone
              system and the Indianapolis Police Detectives who obtained and
              reviewed the calls.


      Edwards, slip op. at 2.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 7 of 18
[10]   At the post-conviction hearing, Edwards elicited very brief testimony from his

       trial counsel and the trial counsel for one of the co-defendants. Edwards did

       not question counsel as to strategic reasons for making or withholding

       objections during police testimony that either corroborated voice authentication

       or explained the witnesses’ understanding of particular jargon. Edwards did

       not direct the post-conviction court to specific instances of alleged improper

       testimony. In short, Edwards failed to develop this contention of trial counsel

       error at the post-conviction hearing.


[11]   On appeal, Edwards likewise fails to develop an argument clearly identifying

       his trial counsel’s perceived deficiencies. On one hand, Edwards observes that

       “Counsel made many objections to Det. Wagers testifying about these phone

       conversations and the Trial Court overruled the Objections.” Appellant’s Brief

       at 9. On the other hand, he argues that counsel withheld appropriate

       objections, yet he does not direct us to specific portions of the record to support

       this contention. “In order to prove ineffective assistance of counsel due to the

       failure to object, a defendant must prove that an objection would have been

       sustained if made and that he was prejudiced by the failure.” Wrinkles v. State,

       749 N.E.2d 1179, 1192 (Ind. 2001). In this instance, we are presented with a

       bald assertion and lack record citations to particular testimony Edwards finds

       objectionable; we are thus unable to discern whether additional objections if

       lodged by counsel would have been sustained.


[12]   Edwards suggests that his counsel should have procured a voice-identification

       expert and he discusses at some length the requirements for admissibility of

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 8 of 18
       expert testimony and the scientific principles relative to the uniqueness of each

       person’s voice. Edwards fails, however, to acknowledge that his voice was

       identified by his cousin and his friend; he does not explain how he was

       prejudiced by the omission of a voice expert.


[13]   Edwards also claims that his trial counsel was “ineffective for failing [to]

       challenge that No Overt Act was proven for a Conspiracy to Commit Murder.”

       Appellant’s Brief at 5. This is, at bottom, a claim that counsel failed to

       recognize that insufficient evidence supported Edwards’s conspiracy conviction.

       The State alleged an overt act of locating victims. The overt act in a conspiracy

       count may be performed by either the accused or a person with whom he

       agreed. Minnifield v. State, 512 N.E.2d 1103, 1105 (Ind. 1987).


[14]   On direct appeal, Edwards obtained review of the sufficiency of the evidence

       supporting each of his convictions:


               To convict Adrian of murder, the State was required to prove
               beyond a reasonable doubt that he knowingly and intentionally
               killed another human being, specifically, Moss and Adkisson.
               I.C. § 35-42-1-1. To convict Adrian of conspiracy to murder
               Foster, the State was required to prove beyond a reasonable
               doubt that he agreed with another person to commit that murder.
               Id.; I.C. § 35-41-5-2.


               A murder conviction may be based entirely on circumstantial
               evidence. Franklin v. State, 715 N.E.2d 1237, 1241 (Ind. 1999).
               Circumstantial evidence is sufficient if inferences may reasonably
               be drawn therefrom to enable the factfinder to find the defendant
               guilty beyond a reasonable doubt. Id. The uncorroborated
               testimony of one witness, including an accomplice, may be

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 9 of 18
        sufficient, by itself, to sustain a conviction on appeal. Toney v.
        State, 715 N.E.2d 367, 369 (Ind. 1999).


        Here, although there was no forensic evidence linking Adrian to
        the crimes, Hardiman and Ealy testified at length regarding their
        knowledge of the plan to hunt down and kill Moss, Adkisson,
        and Foster at Djuan’s request. Both men also testified that
        Adrian actively participated in the crimes. And Adrian testified
        that he did, in fact, state “no witnesses, no case [against Djuan],”
        tr. P. 735, on at least one occasion. Hardiman and Ealy both
        recalled Adrian making the statement at other times as well.
        Adrian admitted that he owned two shotguns, a type of weapon
        used in the murders. Hardiman and Ealy both testified that
        Adrian told them that he kicked in the door to Moss’s residence –
        which was, in fact, kicked in – and then shot Adkisson. Indeed,
        Adrian still had a gun in his hand when he relayed the story to
        Hardiman. Id. At 503. Moreover, the recordings of telephone
        conversations between Djuan, Adrian, and others include coded
        instructions from Djuan to kill Moss, Adkisson, and Foster, and
        the other participants’ agreement to commit the murders.


        As a whole, we find that this is sufficient circumstantial evidence
        to support Adrian’s convictions. Adrian emphasizes the lack of
        forensic evidence and directs our attention to alleged
        inconsistencies in the testimony of Hardiman and Ealy, but these
        amount to requests that we reweigh the evidence and judge the
        credibility of witnesses – practices in which we do not engage
        when evaluating the sufficiency of the evidence supporting a
        conviction.


Edwards, slip op. at 4. In the face of sufficient evidence supporting Edwards’s

convictions, he cannot show that trial counsel was deficient for failing to draw

attention to alleged insufficiency.



Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 10 of 18
[15]   Edwards also contends that his trial counsel was ineffective for failing to move

       to sever his trial from that of Djuan. Indiana Code Section 35-34-1-9(b)(2) then

       provided:


               Two (2) or more defendants can be joined in the same indictment
               or information when:


               each of the defendants is charged as a conspirator or party to the
               commission of the offense and some of the defendants are also
               charged with one (1) or more offenses alleged to be in furtherance
               of the conspiracy or common scheme or plan; however, a party
               to the commission of an offense or conspirator need not be
               designated as such in the indictment or information[.]


[16]   During the post-conviction hearing, Edwards questioned counsel about

       severance. Djuan’s counsel responded that she “did not believe” she moved for

       severance and Edwards’s counsel testified that he “didn’t remember” whether

       or not he filed a motion to sever. (P-C.R. App. at 109, 111.) Even if we assume

       that there was, in fact, no motion for severance made, Edwards cannot show

       that counsel was deficient without also showing that there were grounds for

       severance and a motion would have been granted. See Smith v. State, 465

       N.E.2d 1105, 1121 (Ind. 1984) (recognizing that, where alleged co-conspirators

       are joined for trial upon statutory authority, a motion for severance must be

       supported by adequate grounds).


[17]   According to Edwards, “the evidence at trial was confused and conflicted as to

       which defendant was charged with what Murder” and “the jury could have

       easily presumed that both were involved in both murders which was not true.”

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 11 of 18
       Appellant’s Brief at 18. Edwards fails to provide any citation to relevant legal

       authority or corresponding argument, but instead baldly asserts that he suffered

       prejudice from potential jury confusion. “On review, we will not search the

       record to find a basis for a party’s argument, nor will we search the authorities

       cited by a party in order to find legal support for its position.” Young v. Butts,

       685 N.E.2d 147, 151 (Ind. Ct. App. 1997). Moreover, we hold pro se litigants

       such as Edwards to the same performance standards as practicing attorneys.

       See e.g., Smith v. State, 822 N.E.2d 193, 203 (Ind. Ct. App. 2005), trans. denied.

       Edwards has waived his claim for failure to provide cogent argument. See

       Appellate Rule 46(A)(8)(a).


[18]   Finally, Edwards claims that his trial counsel was “ineffective for failing to

       move for [a] single episode of criminal conduct for the Conspiracy charge and

       require Edwards Sentences be ran concurrent due [to] the balancing of the

       Mitigation and Aggravating facts.” Appellant’s Brief at 20. Edwards’

       corresponding argument is unclear; as best we can discern, he believes that

       counsel should have pointed out at sentencing that Conspiracy to Commit

       Murder is not defined as a crime of violence in the consecutive sentencing

       statute, Indiana Code Section 35-50-1-2, and that his crimes were a single

       episode of criminal conduct, according to that statute.4




       4
         Indiana Code Section 35-50-1-2(b) defines an “episode of criminal conduct” as an “offense or a connected
       series of offenses that are closely related in time, place, and circumstance.” Although he does not develop a
       factual argument relative to his offenses, Edwards seems to be persuaded that the foregoing statute requires
       fully concurrent sentences for offenses that constitute an episode of criminal conduct. He is incorrect.
       Rather, the statute imposes various limitations for an episode of criminal conduct. At the time of Edwards’s

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018          Page 12 of 18
[19]   Edwards seems to suggest that proper argument on the part of his counsel could

       have prevented the imposition of consecutive sentences. We disagree. A single

       aggravating circumstance may justify the imposition of consecutive sentences.

       Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009). “The presence of

       multiple victims is one such aggravating circumstance.” Id. Edwards has not

       demonstrated that counsel performed deficiently because he did not obtain

       concurrent sentences for Edwards.


                             Effectiveness of Appellate Counsel
[20]   The two-pronged standard for evaluating the assistance of trial counsel first

       enunciated in Strickland is applicable to appellate counsel ineffective assistance

       claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). Claims of

       ineffectiveness of appellate counsel will generally fall into three basic 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). Edwards claims

       that his appellate counsel failed to raise meritorious issues; thus, his claim is

       based upon the waiver of issues category. In order to show that counsel was

       ineffective for failing to raise an issue on appeal, thereby resulting in waiver for

       collateral review, “the defendant must overcome the strongest presumption of




       sentencing, subsection (c) provided in part: “except for crimes of violence, the total of the consecutive terms
       of imprisonment … to which the defendant is sentenced for felony convictions arising out of an episode of
       criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony
       higher than the most serious of the felonies for which the person has been convicted.”

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018            Page 13 of 18
       adequate assistance, and judicial scrutiny is highly deferential.” Ben-Yisrayl, 738

       N.E.2d at 260-61.


[21]   To evaluate the performance prong when counsel waived issues upon appeal,

       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 those raised. Garrett, 992 N.E.2d at 724. If the analysis

       under this test demonstrates that appellate counsel performed deficiently, we

       then evaluate the prejudice prong. Id. This requires an examination of whether

       the issues that appellate counsel failed to raise would have been clearly more

       likely to result in reversal or an order for a new trial. Id. Appellate courts

       should be particularly deferential to an appellate counsel’s strategic decision to

       include or exclude issues, unless the decision was “unquestionably

       unreasonable.” Bieghler, 690 N.E.2d at 194 (Ind. 1997).


[22]   Edwards contends that his appellate counsel should have argued that the trial

       court improperly admitted Detective Wagers’ testimony explaining what he

       perceived to be code words used during recorded jail conversations. The post-

       conviction court observed that Edwards failed to support his bald assertion:


               At the evidentiary hearing, the Defendant did not present any
               evidence from appellate counsel regarding why she did not raise
               this issue, and thus without impermissible speculation, it is
               impossible to determine why counsel selected and rejected the
               various available issues. While the issue that the Defendant now
               touts might have been an issue that possibly could have been
               raised on appeal, he makes no showing that this issue was clearly
               stronger than ones that appellate counsel ultimately chose.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 14 of 18
               Certainly, allowing a case detective to testify regarding the
               meaning of “coded” language is not without precedent. See e.g.
               United States v. Emmanuel, 565 F.3d 1324, 1335 (11th Cir. 2009).
               Moreover, in addition to failing to elicit specific testimony from
               appellate counsel, the defendant has also failed to provide
               specific citations in the record where he believes the case
               detective’s testimony was improper. Most fundamentally, the
               Defendant’s unsupported assertions do not, “show from the
               information available in the trial record or otherwise known to
               appellate counsel that appellate counsel failed to present a
               significant and obvious issue and that this failure cannot be
               explained by any reasonable strategy.” Stevens v. State, 770
               N.E.2d 739, 760 (Ind. 2002). And consequently the Defendant
               has failed to meet his burden of proof on these claims.


       (App. at 101-02.) We, like the post-conviction court, have nothing beyond a

       bald assertion. Edwards does not direct us to specific instances in the record

       where allegedly inadmissible testimony was permitted and he does not present

       legal argument as to the strength of the omitted appellate issue.


[23]   Edwards also summarily asserts that appellate counsel should have challenged

       the lack of an overt act to support the conspiracy conviction and the lack of

       eyewitnesses, and should have raised issues regarding non-severance, invasion

       of the jury’s province, and sentencing error. As we have previously discussed,

       appellate counsel raised an issue of sufficiency of the evidence and Edwards’s

       convictions were affirmed. To the extent that he attempts to support an

       allegation of ineffective appellate assistance with unsupported claims of trial

       counsel ineffectiveness or trial error, he cannot prevail. Edwards has failed to

       show that his trial counsel was ineffective, and his claims of ineffective


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 15 of 18
       assistance of appellate counsel premised upon trial counsel’s alleged

       deficiencies must also fail. Allen v. State, 749 N.E.2d 1158, 1168-69 (Ind. 2001).


[24]   Appellate counsel is presumed effective, and Edwards did not show that

       appellate counsel omitted an obvious issue with a greater chance of success

       than those issues actually raised. Accordingly, the post-conviction court did not

       err in denying post-conviction relief on grounds of ineffectiveness of appellate

       counsel.


                                      Issuance of Subpoenas
[25]   Edwards contends that the post-conviction court abused its discretion when it

       denied his requests for the issuance of subpoenas to some potential witnesses.


[26]   Our Post-Conviction Rules provide, in relevant part:


               If the pro se petitioner requests issuance of subpoenas for
               witnesses at an evidentiary hearing, the petitioner shall
               specifically state by affidavit the reason the witness’ testimony is
               required and the substance of the witness’ expected testimony. If
               the court finds the witness’ testimony would be relevant and
               probative, the court shall order that the subpoena be issued. If
               the court finds the proposed witness’ testimony is not relevant
               and probative, it shall enter a finding on the record and refuse to
               issue the subpoena.


       Ind. Post-Conviction Rule 1(9)(b). Under this rule, a post-conviction court has

       discretion to determine whether to grant or deny the petitioner’s request for a

       subpoena. Pannell v. State, 36 N.E.3d 477, 486 (Ind. Ct. App. 2015). We will



       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 16 of 18
       find that a post-conviction court has abused this discretion if its decision is

       against the logic and effect of the facts and circumstances before it. Id.


[27]   Edwards requested subpoenas for six post-conviction witnesses; the two

       subpoenas directed to trial counsel were issued. However, the post-conviction

       court denied the requests for subpoenas to Hardiman, Ealy, Djuan, and Tia

       Thomas (Edwards’s girlfriend at the time of the murders), entering findings in

       each instance that the evidence sought was not germane to the proceedings.


[28]   Edwards claims that Hardiman, Ealy, and Djuan would each be expected to

       recant prior false trial testimony and/or police statements. As for Thomas,

       Edwards anticipated that she would testify, consistent with her trial testimony,

       that Edwards had been with her at the time of the murders of Moss and

       Adkisson.


[29]   The post-conviction court did not abuse its discretion in denying subpoenas for

       Hardiman, Ealy, and Djuan based upon their alleged recantations. Post-

       conviction proceedings are not designed to permit attacks on witness credibility,

       but rather to address issues demonstrably unavailable at trial and on direct

       appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). Although Edwards

       might arguably have pursued a claim of newly-discovered evidence if

       Hardiman, Ealy, and Djuan were willing to recant prior testimony, he has not

       done so. He brought a post-conviction proceeding alleging ineffectiveness of

       counsel and has made no showing that post-trial witness recantations were

       relevant to his counsel’s performance. Likewise, the anticipated testimony from


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 17 of 18
       Thomas does not appear germane to the issue of ineffectiveness of counsel.

       Because none of the anticipated testimony pertained to Edwards’s claimed basis

       for post-conviction relief, we find no abuse of discretion in the trial court’s

       denial of the issuance of the requested subpoenas.



                                               Conclusion
[30]   Edwards has failed to show that the evidence as a whole leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court. Edwards has not demonstrated an abuse of discretion in the issuance of

       subpoenas. Thus, we affirm the post-conviction court’s judgment denying

       Edwards post-conviction relief.


[31]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-PC-337 |February 12, 2018   Page 18 of 18
