COA: Post-conviction court too speedy in its denial of petition

July 22, 2015

A post-conviction court which denied a petition even before the state had responded has been ordered by the Indiana Court of Appeals to go back, slow down and do it over.

Abdullatip Osmanov, a permanent resident of the United States, filed a petition for post-conviction relief after he learned his guilty plea could possibly result in his deportation.

He pleaded guilty to Class D felony theft and Class B misdemeanor failure to stop after an accident resulting in non-vehicle damage in Huntington Superior Court. In addition, he filed a “Written Advisement and Waiver of Rights” form which included a provision detailing the possibility of deportation for non-U.S. citizens with felony convictions.

Subsequently, Osmanov filed a petition for post-conviction relief, claiming, in part, his guilty plea was not entered into knowingly because he was unaware of the immigration consequences. Twelve days after he filed a petition and before the state filed an answer, the post-conviction court summarily denied Osmanov’s request for relief.

On appeal, Osmanov argued the post-conviction court erred by denying his petition without holding an evidentiary hearing. The state of Indiana countered the court properly denied the petition because Osmanov’s conduct at his guilty-plea hearing and the Written Advisement and Waiver of Rights he signed refuted his post-conviction claims.

The Court of Appeals found the post-conviction court acted so quickly that neither party had time to file a motion for summary disposition or submit affidavits or other evidence. The court issued a denial less than two weeks after Osmanov filed and before the state had a chance to respond.  

Instead, the post-conviction court relied on the waiver form and the transcript from Osmanov’s guilty-plea hearing when it disposed of his petition.

The Court of Appeals noted that when the petition is reviewed without considering the documents outside of the pleadings, Osmanov raises issues of possible merit. Consequently, the panel ruled the post-conviction court erred by summarily denying Osmanov’s petition under Post-Conviction Rule 1(4)(f).

In Abdullatip Osmanov v. State of Indiana, 35A04-1412-PC-568, the Court of Appeals reversed the post-conviction court’s judgment and remanded for further proceedings.


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