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COA finds petitioner failed to show trial counsel was ineffective

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In affirming a post-conviction court’s judgment, the Indiana Court of Appeals found a convicted child molester failed to carry his burden in claiming that his attorney was ineffective.

Ian McCullough was convicted of two counts of Class A felony child molesting and one court of Class C felony child molesting. After his convictions were affirmed on direct appeal, he sought post-conviction relief on the grounds that he received ineffective assistance of trial counsel.

The post-conviction court denied McCullough’s petition.

On appeal in Ian McCullough vs. State of Indiana, 49A02-1106-PC-57, McCullough argues that his trial counsel was ineffective on numerous grounds including that counsel failed to object to evidence of prior uncharged misconduct and to the prosecutor’s references to that misconduct; failed to adequately cross-examine the state’s investigators; failed to make an offer of proof when the trial court excluded his expert’s testimony; failed to present expert evidence of child memory; failed to present certain evidence; and failed to request the jury instruction as mandated by the Protected Person Statute.

The COA noted that to be successful in the claim of ineffective assistance of counsel, the petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance.

In reviewing the claim, the COA concluded that McCullough failed to carry his burden to show that the evidence, as a whole, leads unerringly and unmistakably to a conclusion different from that of the post-conviction court.

Judge Elaine Brown dissented. She wrote, “While some of the errors by trial counsel may not individually be sufficient to prove ineffective representation, when viewed cumulatively counsel’s overall performance fell below the prevailing professional norms….”


 

 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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