Troy R. Shaw Appellant-Petitioner,
State of Indiana, Appellee-Respondent
Argued: June 28, 2019
from the Allen Superior Court, No. 02D04-1803-PC-17 The
Honorable Frances Gull, Judge
Petition to Transfer from the Court of Appeals, No.
ATTORNEY FOR APPELLANT, TROY SHAW Michael K. Ausbrook,
Michael P. Smyth, Certified Legal Intern Indiana University
Maurer School of Law
ATTORNEYS FOR APPELLEE, STATE OF INDIANA Curtis T. Hill, Jr.
Attorney General of Indiana, Andrew A. Kobe Deputy Attorney
General, Angela N. Sanchez Deputy Attorney General
ATTORNEY FOR AMICUS CURIAE, THE PUBLIC DEFENDER OF INDIANA
Stephen T. Owens Public Defender of Indiana, Jonathan O.
Chenoweth Deputy Public Defender Indianapolis, Indiana
issue is whether a petitioner who has obtained the right to a
new appeal from a federal court may, without prior
authorization, file a post-conviction petition that
challenges only the issues emerging from the new direct
that a post-conviction petition that addresses only the
proceedings on remand from this grant of relief is not a
"second" or "successive" petition under
Ind. Post-Conviction Rule 1(12). In these limited cases, such
a petition may proceed without the prior authorization of
this Court or the Court of Appeals.
and Procedural History
2002, a jury convicted Troy R. Shaw of the murder of Brett
King. Shaw's conviction and 60-year sentence were
affirmed on direct appeal. Shaw v. State, No.
02A03-0205-CR-132, 787 N.E.2d 1030 (Ind.Ct.App. 2003).
April 2007, Shaw filed his first petition for post-conviction
relief, alleging the ineffective assistance of trial and
appellate counsel. The post-conviction court denied his
petition in March 2008, and the Court of Appeals affirmed.
Shaw v. State, 898 N.E.2d 465, 470 (Ind.Ct.App.
2008), trans. denied. Shaw thereafter filed a
petition for writ of habeas corpus, which was denied by the
U.S. District Court, Southern District of Indiana. Shaw
v. Mize, No. 2:09-cv-325-JMS-WGH (S.D. Ind. 2012).
U.S. Court of Appeals for the Seventh Circuit vacated the
District Court's judgment, holding that Shaw's
appellate counsel's performance was deficient in several
respects. Shaw v. Wilson, 721 F.3d 908
(7th Cir. 2013), reh'g denied, reh'g
en banc denied, cert. denied, 134 S.Ct. 2818 (2014). The
Seventh Circuit 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 919-20. A new appeal was
opened and held in abeyance until the State's petition
for certiorari was denied.
Shaw's second direct appeal, he argued that he was
prejudiced when, 17 months after the omnibus date, the State
amended the charging information to charge him with murder
instead of Class B felony battery. But the Court of Appeals
affirmed the conviction and sentence, holding that Shaw
failed to demonstrate substantial ...