Justices take certified questions, rule Gary death row inmate didn’t ‘properly’ file PCR petition

A Gary man sentenced to death did not “properly file” a post-conviction petition in 2016, and an Indiana Supreme Court order in 2017 to file the deficient PCR petition did not render it proper, the Supreme Court has ruled in response to certified questions from a federal judge.

The high court on Friday responded to two questions posed by Indiana Northern District Judge Holly A. Brady in Kevin Isom v. Ron Neal, 21S-CQ-545.

In 2007, Kevin Charles Isom was accused of brutally killing his wife, Cassandra Isom, and her teenage children, 13-year-old daughter Ci’Andria Cole and 16-year-old son Michael Moore. Isom was convicted and sentenced to death row despite maintaining his innocence.

The Indiana Supreme Court affirmed Isom’s convictions and death sentence on direct appeal in 2015.

Isom then sought post-conviction relief, challenging the effectiveness of his trial and appellate counsel. After lengthy proceedings that led to the post-conviction court’s denial of Isom’s petition, the Supreme Court unanimously affirmed in a 46-page decision handed down in July 2021.

Isom has now petitioned for a writ of habeas corpus in the United State District Court for the Northern District of Indiana. With his petition, Isom filed a “Motion for Statutory and/or Equitable Tolling” that raises questions about the legal effect of the Supreme Court’s unpublished Jan. 13, 2017, order directing the trial court to file Isom’s state post-conviction relief petition despite its defects.

The district court certified two questions the Supreme Court pursuant to Indiana Appellate Rule 64:

  • Is a petition for post-conviction relief, tendered to a trial court without the verification required by Post-Conviction Rule 1, Sections 2 and 3, properly filed?
  • If not, does a later order of the Indiana Supreme Court, which neither affirms nor reverses a trial court order dismissing an unverified petition but orders the petition filed by the trial court as of the date of the Supreme Court’s order, render the unverified petition properly filed as of the date of its initial submission?

In her opinion, Brady anticipated the answers to both questions were “no” but concluded those answers should come from the Supreme Court.

Justices accepted the certified questions and agreed with Brady in answering “no” to her questions.

“The unverified post-conviction petition Isom tendered to the Lake Superior Court in January 2016 was not ‘properly filed’ as of the date of its initial submission, nor did our subsequent order issued in January 2017 render Isom’s post-conviction petition ‘properly filed’ as of the date of its initial submission,” the court opined.

In a footnote, the justices recognized that when accepting a certified question, they often set a schedule for briefing on the questions raised.

“But here, the parties briefed — and orally argued — related issues as part of Isom’s state post-conviction appeal,” the court wrote in a per curiam opinion. “In light of those extensive arguments, we find further briefing on these certified questions unnecessary.”

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