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Shaw v. State

Supreme Court of Indiana

August 21, 2019

Troy R. Shaw Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

          Argued: June 28, 2019

          Appeal from the Allen Superior Court, No. 02D04-1803-PC-17 The Honorable Frances Gull, Judge

          On Petition to Transfer from the Court of Appeals, No. 18A-PC-1181

          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 Indianapolis, Indiana

          ATTORNEY FOR AMICUS CURIAE, THE PUBLIC DEFENDER OF INDIANA Stephen T. Owens Public Defender of Indiana, Jonathan O. Chenoweth Deputy Public Defender Indianapolis, Indiana

          OPINION

          PER CURIAM.

         At 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 appeal.

         We hold 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.

         Facts and Procedural History

         In 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).

         In 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).

         But the 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.

         In 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 ...


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