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7th Circuit: Attorney’s deficient performance prejudiced defendant

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Finding that an appellate attorney opted for a “hopeless sufficiency challenge” instead of the obvious claim challenging the validity of an amended information that elevated a charge to murder, the 7th Circuit Court of Appeals reversed the denial by the federal court of the man’s petition for writ of habeas corpus.

Troy Shaw was 18 years old in 2000 when he was working selling magazine subscriptions as part of a traveling team. His group was staying in a hotel when several of the team members attacked an uninvited stranger in the room. The man was chased outside and beaten to death. Shaw and two other men were charged with aggravated battery, although Shaw denied being involved in the attack. The two other men agreed to testify against Shaw, which led to the state seeking to elevate his charge from aggravated battery to murder.

Shaw’s trial attorney challenged the amendment of the information, claiming it was barred under basis of Indiana Code 35-34-1-5 (1982), a statute that had long limited prosecutors’ discretion to amend pending charges. The version of the statute then in effect specified that an amendment of “substance” could be made up to 30 days before the “omnibus date” and an amendment of mere “form” could be made even later if not prejudicial. The amendment wasn’t proposed in Shaw’s case until 17 months later, but the trial court allowed it.

Shaw was convicted and public defender Gregory Miller handled his appeal. Instead of raising the amendment issue, Miller instead argued that the evidence was insufficient to support the conviction. Shaw’s conviction was upheld on appeal and by the post-conviction court. He then sought relief in federal court, which denied his habeas petition.

In Troy R. Shaw v. Bill Wilson, 12-1628, the 7th Circuit reversed the denial of Shaw’s petition, finding Shaw was prejudiced by Miller’s choice of reasoning on appeal.

“The bottom line is that attorney Miller was faced with two potential arguments, one undeniably frivolous and the other solidly based on a state statute and reinforced by the Indiana Supreme Court’s pronouncement in Haak. In the face of this choice, Miller opted for the hopeless sufficiency challenge,” Judge Diane Wood wrote.

“Once again, it is necessary only to conclude that the amendment issue was clearly stronger than the sufficiency argument, and we have no trouble coming to that conclusion based on both the language of the statute and the Indiana Supreme Court’s Haak decision.”

Shaw demonstrated prejudice as he had a reasonable chance of success on appeal but for Miller’s deficient performance. The court remanded with instructions to issue a writ of habeas corpus unless the state grants Shaw a new appeal within 120 days after issuance of the mandate.
 

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  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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