ATTORNEYS FOR APPELLANT

Mark Earnest
Eric K. Koselke
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana

SUPREME COURT OF INDIANA

MICHAEL WILLIAM DANIELS,            )

       

On November 22, 1993, assisted by appointed counsel, Daniels filed the petition at issue in this appeal. (S.P-C.R. at 164, 175.) Daniels contended that the trial court was bound by a 1978 plea agreement that it signed but then rejected on the record at the sentencing hearing a month later. State v. Daniels, 680 N.E.2d 829, 831 (Ind. 1997). The post-conviction court granted summary judgment in favor of Daniels on this claim, and the State appealed. Id. This Court reversed the grant of summary judgment and remanded the case to the post-conviction court to address the remaining issues in Daniels’ petition. Id. at 885. After a hearing, the post-conviction court denied relief, and this appeal ensued. See footnote (S.P-C.R. at 56, 94.)

Rowley was initially charged with Allen Streett’s murder. (S.P-C.R. at 2902.) According to the probable cause affidavit, this charge was based on Timothy Streett’s identification of Rowley “as being with the person” who shot his father. (S.P-C.R. at 2903.) The record does not reveal why charges against Rowley were ultimately dropped. A warrant was issued for a search of Rowley’s home for the gun used in the Streett murder. (S.P-C.R. at 1637-38.) Although no gun was recovered, shell casings fired from the same gun as the shell casings found at the murder scene and at the scene of the fourth robbery were found. See footnote (S.P-C.R. at 1514.)

Daniels contends that his trial counsel were deficient for failing to use all of this information at trial because, but for these omissions, there is a reasonable possibility he would have been acquitted. The State responds that “[a]lthough a more vigorous defense might have persuaded the jury that one or another of the victim’s identifications was not sufficiently positive to be reliable, it is simply not credible that they were all wrong.” (Appellee’s Br. at 8.)

The State correctly points out that the evidence relating to the four robberies is intertwined. The common thread is the testimony of Edmonds. If the jury believed Edmonds, all of the convictions, including identification of Daniels as the shooter, follow. See footnote

Moreover, the jury was presented with other reliable evidence sufficient to find that Daniels was the shooter. Steve McCloskey, the first victim, identified Daniels as the man who took his wallet and struck his mother. McCloskey also testified that he heard a gunshot at about the time that Edmonds said Daniels shot himself in the leg. Timothy Streett, the victim of the second robbery, testified that Daniels shot his father.

Mary Ann Beem identified Daniels as the gunman who robbed both her and her father. Jack Beem found Timothy Streett’s wallet when he searched for his own wallet at his home where this third robbery occurred. Dr. Barnett, the victim of the fourth robbery, also identified Daniels as the person who shot him. Shell casings found at the Barnett and Streett crime scenes were fired from the same gun.

The successive post-conviction court was critical of trial counsel’s failure to make use of the evidence relating to Rowley, but concluded:
48. Although trial counsel was not as thorough nor effective in hindsight as they should have been, and in several areas they did a deplorable job, it is the Court’s finding that with the remaining body of evidence that the State presented, trial counsel’s representation did not fall below the norms for trial counsel at the time, so as to have made the jury’s finding of guilty unreliable.
49. Although the Petitioner has shown that trial counsel’s performance was lacking and ineffective, he has not carried his burden that such performance prejudiced the defense to the extent that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

(S.P-C.R. at 85-86.) Thus, the post-conviction court rejected Daniels’ guilt phase contentions on their merits. It went on to hold, however, that Daniels’ claim of trial counsel ineffectiveness was unavailable in this successive post-conviction petition because it was raised and adjudicated in his first petition for post-conviction relief. See footnote (Id. at 89.) The court was correct to so hold.

B. Residual Doubt at the Penalty Phase. All of the robbery victims testified that they saw two robbers and only one wielded a gun. (T.R. at 767, 799, 830, 847, 871.) Edmonds testified that he was with Daniels, who carried the gun throughout the evening, while Cox remained in the car. (T.R. at 970-79.) The State’s theory of the case was that Daniels, Edmonds, and Cox were the only participants in the crime spree. Daniels argues that the cited evidence suggesting Rowley’s involvement created at least a “residual doubt” as to whether Daniels was the shooter , and that Daniels’ trial counsel were ineffective for failing to make a penalty phase argument based on residual doubt. (Appellant’s Br. at 59.)

As we recently observed in Miller v. State, 702 N.E.2d 1053, 1069-70 (Ind. 1998), “counsel ought have no obligation to argue to the jury that its just-returned unanimous determination of guilt ought be revisited . . . . The failure to argue ‘residual doubt’ does not constitute ineffective assistance of counsel.” Therefore, the failure here, if any, was in omitting to present, in the guilt phase, the evidence suggesting that Daniels was not the shooter. As noted above, this claim was raised in the first post-conviction proceeding and is, therefore , foreclosed under res judicata.

C. Res Judicata and Waiver. This case thus presents the dilemma between the dual goals of ending litigation and ensuring only proper imposition of the death penalty. The errors claimed here, unlike those asserted in Daniels’ earlier appeals, deal with whether Daniels was the shooter, and thus whether he was properly found eligible for the death penalty.

The items cited by Daniels establish neither his innocence nor his ineligibility for the death penalty. At most, they individually and collectively present inconsistencies in the accounts of some of the testifying victims, and evidence potentially implicating Rowley as a co-perpetrator, and as such may have been worthy of pursuit by the defense. The question is whether these modest inconsistencies and the hints concerning Rowley are so weighty that they warrant vitiating a generation’s worth of fact-finding and litigation that points in the opposite direction. The events are now more than twenty years in the past. Rowley is dead. (S.P-C.R. at 2458.) Edmonds did not testify at the post-conviction hearing and the record does not indicate his current availability. Apart from the usual considerations of cost and court resources, requiring victims and their families to revisit these awful crimes is itself no small matter.
    
Perhaps most significantly, all of these matters were known or knowable both at trial and at the time of Daniels’ first post-conviction proceeding. Therefore, the post-conviction court correctly held that Daniels’ new claims of trial counsel ineffectiveness were barred by res judicata and waiver. As this Court observed in our last opinion in this case, “[t]he Indiana Rules of Procedure for Post-Conviction Remedies require that all grounds for relief available to a petition[er] under the post-conviction rules must be raised in the original petition.” State v. Daniels, 680 N.E.2d 829, 835 n.10 (Ind. 1997) (citing Ind. Post-Conviction Rule 1(8)).
[T]he issue of effectiveness of both Daniels’ trial and appellate counsel was extensively litigated and appealed in his first postconviction proceeding nine years ago. Daniels v. State, 528 N.E.2d 775, 779-81 (Ind. 1988). The issues raised by Daniels in this appeal were on the face of the record from the time of his trial. Accordingly, consideration of additional issues bearing on trial or appellate counsel’s ineffectiveness that were available at that time is precluded.

Id. See also Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989) (“If a convicted person wishes to challenge the performance of his defense counsel at a trial upon criminal charges, he may do so. If such challenge is included in the second petition for post-conviction relief, the claim then is properly subject to waiver or res judicata.”); Resnover v. State, 547 N.E.2d 814, 816 (Ind. 1989), cert. denied, 498 U.S. 881 (1990)(In his first petition for post-conviction relief, “Resnover did raise the issue of ineffectiveness of counsel who handled his trial and his direct appeal and the issue was decided adversely to his petition. He was not entitled to be heard on this issue in this second petition . . . .”).

We must mean what we say in our rules, that a defendant is entitled to one post-conviction hearing and one post-conviction opportunity to raise the issue of ineffectiveness of trial counsel in the absence of newly discovered evidence or a Brady violation. Viewed in hindsight, any trial could have been handled differently. As time passes it becomes increasingly speculative why a given strategy was or was not employed.

Although the evidence related to Rowley might have helped Daniels’ defense, none of these lines of inquiry except for Timothy Streett’s identification were addressed either at trial or as examples of ineffective trial assistance at the first post-conviction proceeding. This did reflect upon the level of effort by trial counsel, but there are many other possible reasons why these matters might have been of no value to the defense. One obvious example is that Rowley, against whom the murder charge was not pursued, may have had an airtight alibi. We recognize that there is nothing in the record to support this conjecture, but Daniels likewise offers largely speculation that Rowley was a participant. We mention it only to illustrate the difficulty in evaluating, two decades later, the reasons for and effects of available lines of inquiry that were not pursued.
    
In sum, we reaffirm the sound and long-established principle that considerations of finality preclude re-litigation of previously available contentions in successive post-conviction proceedings.
    
D. The Claims Were Available in Prior Proceedings. Daniels nevertheless argues that res judicata or waiver should not apply to his ineffective assistance of counsel claims because the issue raised in this petition “was not ascertainable or available to him” in his prior petition. (Appellant’s Br. at 77.) His argument pertains to his personal knowledge rather than that of his post-conviction attorney.

Daniels further contends that his post-conviction counsel refused his request to raise other claims of trial and appellate counsel ineffectiveness. (Appellant’s Br. at 80.) Finally, and in a similar vein, he asserts that “[a]ny waiver of his right to present a full claim of ineffective assistance of trial counsel claim was not knowing[ly], voluntarily and intelligently made on the part of Daniels.” (Appellant’s Br. at 81.) In support of this argument, he points to two pro se filings and a brief colloquy between himself and the first post-conviction court. See footnote

A review of those filings and that colloquy does not answer the question whether the potential involvement of Rowley in these crimes was among the issues Daniels urged his first post-conviction counsel to pursue. On the eve of his first post-conviction hearing, Daniels filed a pro se “Motion to Withdraw Petition of Post Conviction Relief,” which alleged that he could not get his attorney to investigate “matters concerning this case,” that he could not convince counsel to “obtain evidence that has been kept from the defendant’s knowledge for six (6) years,” and that the evidence requested from his counsel was “listed from 1 to 71” in the motion to compel discovery filed on June 20, 1978. (P-C.R. at 140.) See footnote The list of seventy-one items, which was compiled by the State, itemized the materials provided to Daniel’s counsel in partial compliance with Daniels’ previous motion for discovery filed in March 1978. (See T.R. 26-29, 59-66.) Among the items included in the list were Edmonds’ police statement, records of seized or recovered property, polygraph reports, criminal histories, probable cause affidavits, and reports of lineup results. (T.R. at 62-65.)

The first post-conviction court began the hearing by discussing this motion with Daniels. Daniels told the court that he “wanted to present other errors, I have been trying to present them for the past four years, and I’m constantly getting these excuses from these attorneys . . . .” (P-C.R. at 350-51.) The post-conviction court asked Daniels the nature of the evidence he wanted to present, and Daniels mentioned the list of seventy-one items. (P-C.R. at 352.) The court asked counsel about the evidence he planned to present, and counsel responded that he had “allegations which go to just about every phase of the trial from the original charging affidavit through the sentencing and appeal process.” (P-C.R. at 353.)

The court asked Daniels, “[W]hat is outside the record that you’re interested in?” (P-C.R. at 354.) Daniels responded that counsel had “more or less presented the case upon the issues that I wanted to present it, what the attorneys did not do, more or less ineffectiveness of counsel, he’s not speaking directly to any Fourth Amendment issue[s] . . . .” (P-C.R. at 354.) When asked for specific issues, Daniels again mentioned the Fourth Amendment and further commented “[c]oncerning my arrest,” but then stated that if he provided more detail he “would be giving the prosecution an edge, so to speak.” (P-C.R. at 354-55.) The post-conviction court told Daniels that it wanted to hear
the evidence that’s been prepared and then give you an opportunity to consult further with [post-conviction counsel] or perhaps even proceed on your own . . . you will have an opportunity, we don’t necessarily have to finish this thing today, it can continue until a time when I’m satisfied that you’ve had every opportunity to present whatever it is you choose to present, within the constraints and the confines of the law . . . .

(P-C.R. at 355-56.) Although these statements were made at the beginning of the post-conviction hearing, which was held over three days during a four week period, the issue was not revisited.

More than a year later, Daniels filed a pro se “Motion to Waive Appeal.” (P-C.R. at 343A-C.) The motion asserted that Daniels had been denied his right to present errors during the post-conviction hearing, and claimed that Levy
refused to present errors or aid defendant in obtaining documents necessary for the needed investigation of defendant[’]s cause. (4.) The acts of all the attorneys has grossly impaired the defendant. These very acts committed by counsel are designed to actually force the defendant into circumstances where by the time defendant gets his investigation under-way whatsoever may surface from said investigation will be deemed waived by a court of law.

(P-C.R. at 343A-B.)

As the U.S. Supreme Court observed in Taylor v. Illinois,
Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has – and must have – full authority to manage the conduct of the trial. The adversary process could not function effectively if every tactical decision required client approval.

484 U.S. 400, 417-18 (1988) (footnote omitted). The Court explained that these “basic rights” include decisions regarding entering a guilty plea, waiving the right to a jury trial and waiving the right to be present during trial. Id. at 418 n.24; see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (recognizing that a defendant has “the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, . . . take an appeal, [and] with some limitations, . . . act as his or her own advocate”) (citations omitted).

At issue here is counsel’s selection of the issues to be raised in a post-conviction proceeding, which plainly does not fall in the ambit of these “basic rights” or “fundamental decisions” that must be made by the client. Rather, decisions regarding which issues to raise in a post-conviction petition are more akin to determinations about the issues to be raised on appeal. In that context, the U.S. Supreme Court has made clear that appointed counsel on appeal does not have a constitutional duty to raise every colorable claim requested by the defendant. See Jones, 463 U.S. at 754. Moreover, this Court rejected an argument similar to the one advanced by Daniels in this appeal in its opinion affirming the denial of Daniels’ first petition for post-conviction relief, where Daniels requested that none of the issues raised be considered waived.
In support it is suggested that [Daniels] personally never waived any issue; rather, his attorneys did so over his objection and he should not be penalized for his attorneys’ mistakes. The suggested approach would destroy any concept of finality in the appellate process. Decisions by counsel as to what issues will be raised, at trial and on appeal, are binding absent a finding of ineffective assistance.

Daniels, 528 N.E.2d at 783.

In sum, none of Daniels’ claims is predicated on newly discovered evidence, and no claim of a Brady violation is raised. The first post-conviction challenge to the adequacy of Daniels’ representation did not focus on the apparent lack of thoroughness on the part of trial counsel in pursuing the Rowley-related issues asserted here. Nevertheless, we adhere to the view that claims of ineffective assistance of counsel, if litigated at the initial post-conviction proceeding, are barred by the doctrine of res judicata in successive petitions for post-conviction relief, and any acts or omissions of trial counsel that were available in the first post-conviction proceeding but not raised are waived in a successive petition. This doctrine controls the disposition of this case.
E. Daniels Has Not Presented a Case for an Exemption. We also reject Daniels’ argument that applying res judicata to his case would constitute a “manifest injustice,” see Huffman v. State, 643 N.E.2d 899, 901 (Ind. 1994), or that his claims may be raised because they are based on fundamental error, see, e.g., Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995). We do not agree with Daniels’ contention that he “has presented solid evidence that someone other than him may have committed the crimes for which he now faces execution.” (Appellant’s Br. at 80-81.) If that were the case, this Court could elect to address Daniels’ claims on their merits rather than relying on procedural barriers such as waiver and res judicata. Cf. Huffman, 643 N.E.2d at 901 (“Finality and fairness are both important goals. When faced with an apparent conflict between them, this Court unhesitatingly chooses the latter.”) Although the matters Daniels cites suggest some degree of ambiguity or uncertainty in some evidence, the testimony of Edmonds and four separate robbery victims makes it plain that Daniels received a sufficiently fair trial.

F. Failure to Present Daniels’ Social History at the Penalty Phase. Daniels also contends that trial counsel were ineffective for failing to investigate and present his “social history” at the penalty phase of his trial. He lists seventeen claims that he asserts were available, had trial counsel conducted an adequate investigation.

The evidence presented at trial included the testimony of Daniels’ mother, who addressed some of these seventeen items. She testified that she and Daniels’ father divorced when Daniels was four years old, (T.R. at 1088), that Daniels was a “slow learner” in school, (T.R. at 1090), and that his reading level was “well below his [sic] average,” (T.R. at 1094).

Daniels raised this same basic claim on appeal from the denial of his first petition for post-conviction relief. His argument there comprised nearly ten pages of his brief. (S.P-C.R. at 2805, pp. 76-85.) Daniels’ counsel pointed to evidence that Daniels “suffered from a learning disability and consequently had difficulty in school, that illnesses after his birth retarded his development and that he was a follower who could not say no when his friends suggested unlawful behavior.” (Id. at pp. 79-80.) Daniels’ counsel also indicated that there were other available family members and friends to testify against a jury recommendation for the death penalty. (Id. at p. 81.) This Court rejected Daniels’ contention that trial counsel were ineffective for failing to investigate and present mitigating evidence.
While in retrospect it is easy to say that defense counsel should have presented additional evidence in mitigation besides the testimony of appellant’s mother, that testimony itself emphasizes that there may have been tactical reasons why additional witnesses were not called. As a result of statements made by appellant’s mother, the prosecution was permitted to introduce a portion of appellant’s juvenile record. Pitfalls exist in any strategy . . . . Without a specific significant mitigator being identified, the decision to call only appellant’s mother cannot be deemed deficient.

Daniels, 528 N.E.2d at 780. An additional decade of investigating mitigators has not yielded substantially different or weightier material than we examined in 1988. For the reasons explained in Parts C. & D., supra, this claim is also barred by the doctrines of res judicata and waiver. See footnote

    

From a broader perspective, “[t]he right to counsel in a post-conviction proceeding is guaranteed neither by the Sixth Amendment of the United States Constitution nor article 1, § 13 of the Constitution of Indiana.” Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989); see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today.”) (citation omitted).

Daniels acknowledges that the performance of post-conviction counsel is reviewed under the highly deferential standard set forth as a matter of Indiana state law in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). In Baum, Justice DeBruler announced that we would review claims of ineffectiveness of post-conviction counsel under a standard that is
responsive more to the due course of law or due process of law principles which are at the heart of the civil post-conviction remedy. We adopt the standard that if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not necessary to judge his performance by the rigorous standard set forth in Strickland v. Washington.

Id. at 1201(citation omitted).

    
This Court applied the Baum standard in Waters v. State, 574 N.E.2d 911 (Ind. 1991), and reversed the denial of a petition for post-conviction relief. In Waters, the defendant/petitioner filed a pro se petition; counsel filed an appearance one month later; and the post-conviction court ordered the evidence submitted by affidavit. Id. at 912. The petitioner submitted the affidavits pro se, and counsel submitted nothing on behalf of the petitioner, save a petition for instructions, because the State filed no counter-affidavits or other evidence. Id. The post-conviction court denied relief, finding that the pro se affidavits were inadequate for various procedural and technical reasons. Id.

This Court observed that post-conviction “counsel should have known that the affidavits were technically inadequate and should have taken the necessary steps to present them to the trial court in an acceptable form. Counsel, in essence, abandoned his client and did not present any evidence in support of his client’s claim.” Id. See footnote This is not the case here. Daniels’ post-conviction counsel filed a fifteen-page petition that raised seven separate claims, many with multiple parts, and presented nine witnesses at a three-day hearing. (P-C.R. at 21-35, 369-576.)     

The post-conviction court found that “even if the standard of performance of counsel described in Strickland were applicable, post-conviction counsel’s performance was not ineffective in that his representation was in accord with prevailing standards in the legal community at that time.” (Appellant’s Br. App. at 35.) Our review of the record does not lead unerringly and unmistakably to an opposite conclusion; therefore, we affirm the judgment of the post-conviction court. See Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999), cert. denied, 120 S.Ct 1722 (2000).

Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion, in which Rucker, J., joins.

Mark Earnest
Eric K. Koselke
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana

    IN THE

    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable James Detamore, Special Judge
    Cause No. CR78-47D

    As this Court recently observed in Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), Criminal Rule 24, which became effective January 1, 1990, now “creates minimum standards for the criminal litigation experience, specialized training, compensation, and caseload of lawyers appointed in capital cases.” Prosecutors and defense attorneys agree that “Rule 24 ha[s] led to improved representation by defense lawyers in capital cases.” Id. (quoting Norman Lefstein, Reform of Defense Representation in Capital Cases: The Indiana Experience and Its Implications for the Nation, 29 Ind. L. Rev. 495, 509 (1996)). “[A] death penalty verdict returned [since the advent of Rule 24 is] more likely to be sustained on appeal, and the appellate court [is] less apt to find that defense counsel was ineffective.” Id.
    C. Performance of Postconviction Counsel
These seemingly glaring omissions of trial counsel were repeated in the first postconviction proceeding. Daniels was represented in the 1984 proceeding by Paul Levy. Levy testified at the successive postconviction hearing that Daniels’ case was among the first two or three death penalty postconviction cases in Indiana after the reinstatement of the death penalty. At the time, Levy was the only person in the State Public Defender’s Office who was working on such cases. When he filed the petition for postconviction relief in February of 1984, he had less than four years experience as a lawyer, and a predominant part of this experience was reviewing guilty plea transcripts to see if they were in compliance with Boykin v. Alabama, 395 U.S. 238 (1969), and the Indiana statutory requirements for a guilty plea. See footnote Levy testified that he “had no experience doing a factual investigation of a case” and that he “had never worked with an investigator.” He testified that he did not recall obtaining the files of trial counsel in the case, and he either did not recall or did not review the trial court’s file. The only thing Levy could confidently say he had done was review the record of proceedings from trial. Indeed, Levy testified that he “didn’t do much of my own factual investigation beyond the reading of the trial transcripts,” and that “if I had known about other evidence that could have cast doubt on the reliability of the identification of Michael Daniels as the murderer in this case, I would have pursued it. But did I investigate and look for that? No.” Finally, Levy testified that part of the reason he left his job with the State Public Defender a few years later was “a growing sense of unease that I wasn’t doing my job very well.”
It appears that Levy viewed his role as essentially a second appellate attorney. However, as this Court observed in Woods v. State, 701 N.E.2d 1208, 1216 (Ind. 1998),
expecting appellate lawyers to look outside the record for error is unreasonable in light of the realities of appellate practice. Direct appeal counsel should not be forced to become a second trial counsel. Appellate lawyers may have neither the skills nor the resources nor the time to investigate extra-record claims, much less to present them coherently and persuasively to the trial court.

Postconviction counsel is not to function as another appellate attorney. In Woods, we noted the importance of conducting a factual investigation and developing extrinsic evidence to support many claims of ineffective assistance of counsel. Id. at 1216. This was recently again emphasized by the United States Supreme Court in Williams v. Virginia, 120 S. Ct. 1495, 1515-16 (2000), in the context of omitted mitigating evidence. It is equally true of the Rowley-related evidence, which would have required Levy to develop and present evidence beyond the face of the trial record to establish ineffective assistance of counsel.
As noted above, had Criminal Rule 24 been in effect at the time of Daniels’ trial, much of the Rowley evidence would likely have been presented to the jury. However, for many years the State Public Defender’s Office has been equipped to identify errors of the magnitude of those that occurred here and raise them in the initial postconviction proceeding. See footnote The briefing in this and other cases demonstrates that capital postconviction counsel in recent years conduct a very thorough factual investigation and appear to raise every conceivable issue as grounds for postconviction relief. The contrast between Daniels’ initial postconviction proceeding and those of later years is stark.
    Although many capital cases present virtually irrefutable physical and testimonial evidence of guilt, guilt in this case is based on the testimony of a co-defendant who testified pursuant to a plea agreement for a reduced charge and eyewitness victims, some of whom had previously identified Rowley or others. Trial counsel had available, but failed to use, a substantial body of information suggesting that someone else may have committed the crimes for which Daniels was charged. Postconviction counsel added nothing, with the result that no court considered these points until the second postconviction proceeding in 1997.
    D. The Postconviction Court’s Findings
    The evidence the majority cites is surely enough to sustain a conviction, but I cannot exclude the possibility that the omitted evidence could have affected the sentence. The second postconviction court concluded that it would have. After a lengthy hearing at which the omitted Rowley evidence was presented and trial counsel and Levy testified about their performance, the second postconviction court found that “had trial counsel done a fully professional job the residual doubt which would have been placed with the jury and the Judge would have created a reasonable probability that the recommendation would have been different and a reasonable probability that the Judge would not have imposed the death penalty.” Because this is ultimately a factual determination, this Court will reverse only upon a showing of “clear error”—that which leaves us with a definite and firm conviction that a mistake has been made. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). The postconviction court’s finding that, but for trial counsel’s omissions the death penalty would not have been imposed, is not clearly erroneous. Nevertheless, the postconviction court quite correctly viewed itself as barred by our pronouncements that a prior postconviction try at ineffective assistance precludes revisiting that issue, and accordingly denied relief.
    E. The Need for an Exception to the Usual Res Judicata/Waiver Rules
    This case thus presents a case in which (1) the death penalty was imposed; (2) the trial was conducted before Criminal Rule 24; (3) there was minimal investigation; (4) postconviction counsel was inexperienced and conducted no factual investigation; (5) subsequent investigation revealed exculpatory evidence; and (6) a subsequent postconviction court found the omitted evidence sufficient to render the death penalty unreliable. In light of the adoption of Criminal Rule 24 and the dramatic improvements in capital postconviction representation by the State Public Defender, I trust this case presents a set of circumstances that will recur infrequently. But given the woeful performance at the initial postconviction proceeding, I cannot prioritize the powerful reasons favoring finality over the concern that the death penalty may have been imposed not for the defendant’s acts, but for counsel’s oversights.
Accordingly, I believe this Court should consider the merits of Daniels’ claim of ineffective assistance of trial counsel based on inadequate investigation of and failure to present the Rowley evidence. Giving due deference to the factual determinations of the successive postconviction court, I would affirm the denial of relief as to the convictions but reverse the denial of relief as to the penalty phase.
RUCKER, J., concurs.