Justices grant transfer, allow PCR case from second appeal

A man convicted of murder may proceed in his second pursuit of post-conviction relief now that the Indiana Supreme Court has concluded his petition addressed only the grounds arising from his second appeal and was therefore not considered a second or successive petition.

After a fight during a work-related trip resulted in the death of a hotel employee, Troy Shaw was convicted of murder in Allen County in 2002. Shaw’s 60-year sentence was affirmed on direct appeal and he later filed his first petition for post-conviction relief, alleging ineffective assistance of trial and appellate counsel. The post-conviction court denied that first petition, as did the Court of Appeals.

However, the 7th Circuit Court of Appeals ordered that Shaw be issued a writ of habeas corpus unless the state granted him a new appeal. Shaw moved for alternative relief, but that motion was improperly filed and, thus, never officially filed.

In a second direct appeal, Shaw argued he was prejudiced when the state amended his charging information 17 months after the set omnibus date. The appellate court affirmed his conviction and sentence, holding Shaw failed to demonstrate substantial prejudice. It additionally affirmed the dismissal of Shaw’s second petition for post-conviction relief, which alleged his appellate attorney failed to properly argue the issues in his new direct appeal.

But Indiana Supreme Court justices granted transfer to Shaw’s appeal in a per curiam opinion Wednesday. The high court concluded in Troy R. Shaw v. State of Indiana, 19S-PC-466, that because Shaw’s petition addressed only the grounds arising from his second appeal, it was not a “second” or “successive” petition as defined by Indiana Post Conviction Rule 1(12).

“Here, the issues and events Shaw raises in his second petition for postconviction relief had not yet occurred when he filed his first postconviction petition in April 2007. While a second or successive postconviction petition remains subject to the screening procedure outlined in P-C. R. 1(12), a post-conviction petition that raises only issues emerging from the new trial, new sentencing, or new appeal obtained from a federal court through habeas proceedings is not a ‘second’ or ‘successive’ petition,” the per curiam opinion said. “Therefore, Shaw is entitled to pursue his present post-conviction petition in the trial court without seeking leave from the Court of Appeals.”

Thus, the high court concluded Shaw’s petition could proceed without prior appellate authorization and that the Public Defender of Indiana may represent Shaw under the circumstances. It therefore remanded the case for further proceedings consistent with its opinion.

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