Rodney Duane Johnson v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 16 2020, 5:35 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Rodney Duane Johnson Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General
George P. Sherman
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rodney Duane Johnson, March 16, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-1620
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Respondent Marnocha, Judge
Trial Court Cause No.
71D02-1708-PC-30
Crone, Judge.
[1] Rodney Duane Johnson appeals the denial of his successive petition for post-
conviction relief (“PCR”). We affirm.
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[2] In 2006, a jury found Johnson guilty of murder and arson based on his 1996
shooting of Lyman Diggins and his burning of Diggins’s body and vehicle with
gasoline. Johnson’s appellate counsel used the Davis/Hatton procedure to file
both a PCR petition and a direct appeal. In his PCR petition, Johnson argued
that the State failed to disclose that jailhouse informants who testified against
him had been promised leniency; the post-conviction court denied his petition.
In his direct appeal, Johnson argued that the trial court erred in admitting
hearsay evidence. Another panel of this Court affirmed the post-conviction
court’s ruling on the basis that no promises of leniency had been made, and
affirmed the trial court’s ruling on the basis that Johnson had failed to preserve
the hearsay issue. Johnson v. State, No. 71A03-1103-PC-97, 2011 WL 5928057
(Ind. Ct. App. Nov. 29, 2011). Johnson’s appellate counsel did not file a
petition to transfer to our supreme court. 1 In 2017, this Court allowed Johnson
to file a successive PCR petition limited to the issue of whether his appellate
counsel was ineffective in not filing a petition to transfer. In 2019, after a
hearing at which Johnson was represented by counsel, the post-conviction court
denied Johnson’s successive PCR petition.
[3] Johnson now appeals pro se, “but this does not mean that we will treat his brief
any differently than we would if he were represented by counsel.” Receveur v.
Buss, 919 N.E.2d 1235, 128 n.4 (Ind. Ct. App. 2010), trans. denied. “Indeed, it
1
Counsel informed Johnson via letter that he was unable to file a petition to transfer due to a policy change
in the public defender’s office; the letter was sent after the deadline for filing a petition had passed.
Appellant’s App. Vol. 2 at 142.
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has long been the rule in Indiana that pro se litigants without legal training are
held to the same standard as trained counsel and are required to follow
procedural rules.” Id. (italics omitted). “We will not become an ‘advocate for a
party, or address arguments that are inappropriate or too poorly developed or
expressed to be understood.’” Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct.
App. 2016) (citation omitted), trans. denied (2017).
[4] “The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence.” Crowder v. State, 91
N.E.3d 1040, 1048 (Ind. Ct. App. 2018). A petitioner appealing from the denial
of PCR appeals from a negative judgment. Id. “On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court.” Id.
Generally, to prevail on a claim of ineffective assistance of
counsel a petitioner must demonstrate both that his counsel’s
performance was deficient and that the petitioner was prejudiced
by the deficient performance. A counsel’s performance is
deficient if it falls below an objective standard of reasonableness
based on prevailing professional norms. To meet the appropriate
test for prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Failure to satisfy either prong will
cause the claim to fail.
Id. (citations omitted).
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[5] As best we can tell, Johnson’s argument appears to be that his appellate counsel
was ineffective in failing to file a petition to transfer because it foreclosed his
ability to seek habeas corpus relief in federal court. See 28 U.S.C. §
2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted unless
it appears that … the applicant has exhausted the remedies available in the
courts of the State[.]”). Assuming, purely for argument’s sake, that Johnson’s
counsel performed deficiently in not filing a petition to transfer, 2 we note that
Johnson has failed to develop a cogent argument with citations to relevant
authority that there is a reasonable probability that a federal habeas proceeding
would have been successful, i.e., that he was prejudiced by counsel’s allegedly
deficient performance. 3 Accordingly, we find Johnson’s claim waived and
affirm the denial of his successive PCR petition. See Collins v. State, 911 N.E.2d
2
The United States Supreme Court has held that a criminal defendant has no constitutional right to counsel
to pursue discretionary state appeals, such as a petition to transfer to the Indiana Supreme Court, see Ind.
Appellate Rule 57(H) (“The grant of transfer is a matter of judicial discretion.”), and therefore a defendant
cannot “be deprived of the effective assistance of counsel by his retained counsel’s failure to file the
application timely.” Wainwright v. Torna, 455 U.S. 586, 588 (1982).
3
Johnson does not specifically argue that there is a reasonable probability that the Indiana Supreme Court
would have granted a petition to transfer and reversed his convictions; indeed, he states that “[w]hether or
not the transfer is granted is not the issue.” Appellant’s Br. at 7. In a footnote in the table of contents volume
of his appendix, Johnson purports to raise an argument that the trial court erred in not striking the testimony
of a fingerprint examiner, who testified without objection that one of Johnson’s fingerprints matched a latent
fingerprint on a plastic gasoline cap found near Diggins’s burned vehicle and body, because a second
fingerprint examiner who allegedly confirmed the identification did not testify at trial. We advise Johnson
that an appendix is not the proper vehicle for raising substantive arguments and that “post-conviction
procedures do not provide a petitioner with a ‘super appeal’ or opportunity to consider freestanding claims
that the original trial court committed error. Such claims are available only on direct appeal.” Lambert v.
State, 743 N.E.2d 719, 726 (Ind. 2001), cert. denied (2002).
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700, 709 (Ind. Ct. App. 2009) (finding appellant’s claim waived for lack of
cogent argument), trans. denied.
[6] Affirmed.
May, J., and Pyle, J., concur.
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