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10/26/87 HUBERT FERRIER v. STATE INDIANA

Filed.: October 26, 1987.

HUBERT FERRIER, APPELLANT (PETITIONER BELOW)
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW)



APPEAL FROM THE FOUNTAIN COUNTY CIRCUIT COURT, The Honorable Earl M. Dowd, Special Judge, Cause No. 75 S 18

Pivarnik, J. Shepard, C. J., DeBruler, Givan, and Dickson, JJ., concur.

Author: Pivarnik

PIVARNIK, J.

Hubert Ferrier was convicted of Murder on May 19, 1975. He was sentenced to life imprisonment. His conviction and sentence were affirmed in Ferrier v. State (1977), 266 Ind. 117, 361 N.E.2d 150. He filed a pro se Petition for Post-Conviction Relief, the summary denial of which was reversed on appeal. Ferrier v. State (1979), 270 Ind. 279, 385 N.E.2d 422. The petition was then denied after an evidentiary hearing. The denial was affirmed in Ferrier v. State (1980), 274 Ind. 585, 413 N.E.2d 260.

Ferrier filed his second pro se Petition for Post-Conviction Relief on September 14, 1984. After an evidentiary hearing was held, the trial court denied his second petition. Ferrier directly appeals that denial raising the following issues:

1. admission of Ferrier's rights were violated when his co-defendant's statement was admitted into evidence,

2. alleged error in permitting testimony on Ferrier's criminal history;

3. denial of Ferrier's motion for change of venue;

4. refusal of Ferrier's tendered final instruction 1;

5. effective assistance of trial counsel;

6. effective assistance of direct appeal counsel; and

7. effective assistance of first post-conviction counsel.

The State asserts Ferrier has waived his post-conviction remedy because it is predicated on arguments available but not raised in either his original direct appeal nor his appeal from the denial of his first post-conviction petition. See Ferrier v. State (1977), 266 Ind. 117, 361 N.E.2d 150; Ferrier v. State (1980), 274 Ind. 585, 413 N.E.2d 260. Despite the apparent applicability of that general rule in this case, the State is precluded from now asserting the waiver defense for the first time in this appeal. When the State chooses to meet a petitioner's allegations on the merits ...


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