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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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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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