Attorney for Appellant                    Attorneys for Appellee
Eric K. Koselke    Steve Carter
Indianapolis, IN    Attorney General of Indiana

    Christopher L. Lafuse
    Robin Hodapp-Gillman
    Deputy Attorneys General
    Indianapolis, IN

    In 2001, the Court of Appeals granted Graves permission to file a successive petition for post-conviction relief. Ind. Post-Conviction Rule 1(12). In filing this new petition, Graves alleged that Lewis provided ineffective assistance of counsel during the first post-conviction proceeding. The court held an evidentiary hearing and denied Graves’ petition.

The Court of Appeals reversed, saying:

Lewis failed to make an adequate attempt to establish that the record could not be reconstructed. If he had been successful in doing so, the post-conviction court’s ruling on the petition could have been different. We conclude Graves was not represented in a procedurally fair setting and thus received ineffective assistance of counsel.

Graves v. State , 784 N.E.2d 959, 964 (Ind. Ct. App. 2003) vacated.

The Court of Appeals largely resolved the present case by reference to Zimmerman v. State, 436 N.E.2d 1087, 1088-89 (Ind. 1982), which held that to obtain relief from a guilty plea when the record of a guilty plea hearing is lost or destroyed, the petitioner must either reconstruct the record pursuant to Ind. Appellate Rule 7.2(A)(3)(c) (currently Ind. Appellate Rule 31(A)), or present evidence showing reconstruction is impossible. It also relied on Patton v. State, 537 N.E.2d 513, 519-20 (Ind. Ct. App. 1989), which held that a lawyer’s failure to make these showings constituted inadequate performance and warranted relief. See footnote

     Zimmerman was decided during a period when this Court routinely set aside guilty pleas if the trial court judge failed during the plea hearing to recite to the defendant any of the advisements required by the Code. See Austin v. State, 468 N.E.2d 1027 (Ind. 1984); German v. State, 428 N.E.2d 234 (Ind. 1981). We overruled this approach toward plea hearings in White v. State, 497 N.E.2d 893, 905 (Ind. 1986), holding that a petitioner “needs to plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge’s failure to make a full inquiry in accordance with § 35-35-1-2(a) See footnote rendered his decision involuntary or unintelligent.” See footnote

Unsurprisingly, the availability of these multiple opportunities tends to produce serial re-litigation (i.e., “My trial lawyer should have done x, my appellate lawyer did a bad job of attacking my trial lawyer’s handling of x, my post-conviction lawyer failed in presenting x, etc.”). As Justice Sullivan noted recently in Corcoran v. State, 820 N.E.2d 655, 663-64 (Ind. 2005), as this litigation progresses through successive stages, the likelihood of finding an injustice diminishes.

During that same progression, the value of finality begins to outweigh the benefits of mandating further review at the post-conviction stage, because “[a]ny other conclusion would suggest that each previous proceeding serves no valuable purpose and would degrade the entire [criminal] proceeding to nothing more than a random game of chance.” Corcoran, 820 N.E.2d at 664 (quoting Anthony J. Casey, Maintaining the Integrity of Death: An Argument for Restricting a Defendant’s Right to Volunteer for Execution at Certain Stages in Capital Proceedings, 30 Am. J. Crim. L. 75, 103 (2002)).

This Court declared its approach to claims about performance by a post-conviction lawyer in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). We observed that neither the Sixth Amendment of the U.S. Constitution nor article 1, section 13 of the Indiana Constitution guarantee the right to counsel in post-conviction proceedings, and explicitly declined to apply the well-known standard for trial and appellate counsel of Strickland v. Washington, 466 U.S. 668 (1984). Baum, 533 N.E.2d at 1201. The Baum Court noted that post-conviction pleadings are not regarded as criminal actions and need not be conducted under the standards followed in them. Id. We held unanimously that a claim of defective performance “poses no cognizable grounds for post-conviction relief” and that to recognize such a claim would sanction avoidance of legitimate defenses and constitute an abuse of the post-conviction remedy. Id. at 1200-01.

We therefore adopted a standard based on principles inherent in protecting due course of law -- one that inquires “if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court.” Id. at 1201. As Justice DeBruler explained later, speaking for a majority of us, it is “not a ground for post-conviction relief that petitioner’s counsel in a prior post-conviction proceeding did not provide adequate legal assistance,” but such a contention could provide a prisoner with a basis for replying to a state claim of prior adjudication or abuse of process. Hendrix v. State, 557 N.E.2d 1012, 1014 (Ind. 1990) (DeBruler, J., concurring). See footnote

    The Baum approach bears resemblance to that followed in the federal system. The habeas provisions of the U.S. Code applicable to federal prisoners recognize the availability of successive collateral proceedings but authorize the courts of appeal to permit successive proceedings only in instances of newly discovered evidence of innocence or new rules of constitutional law declared retroactive by the U.S. Supreme Court. 28 U.S.C. § 2255 (2000). See footnote Thus, the Second Circuit has held that a petitioner may obtain relief from the adjudication of his habeas petition only in the “extraordinary circumstances” that “his lawyer abandoned the case and prevented the client from being heard, either through counsel or pro se.” Harris v. United States, 367 F.3d 74, 77 (2nd Cir. 2004). See footnote Such has been the grounds for relief under Baum. Waters v. State, 574 N.E.2d 911, 912 (Ind. 1991) (“[c]ounsel, in essence, abandoned his client and did not present any evidence in support of his client’s claim.”).

    Quite obviously, this state and federal aversion to serial re-litigation focused on performance of counsel stands on a completely different footing than a claim such as the discovery of previously unavailable evidence of innocence. 28 U.S.C. § 2255 (2000); Ind. Post-Conviction Rule 1(1)(a)(4); Bennett v. United States, 119 F.3d 468, 468-70 (7th Cir. 1997) (previously undiscovered evidence of drugs administered during trial); Williams v. State, 808 N.E.2d 652 (Ind. 2004)(new DNA tests).

Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., concurs in result without separate opinion.

Id. (internal citations omitted).