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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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