rigorous standard in Indiana

2020“A petitioner who has been denied post-conviction relief faces a rigorous standard of review on appeal.” Dewitt v. State, 755 N.E.2d 167, 170 (Ind. 2001).

2020The petitioner has an “affirmative duty to present evidence sufficient” to prove a right to relief and “may not rely on matters outside the record of the post- conviction hearing.” Henry v. State, 170 Ind. App. 463, 466 , 353 N.E.2d 482, 484 (1976). [7] “A petitioner who has been denied post-conviction relief faces a rigorous standard of review.” DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

2025Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied. [6] Post-conviction proceedings are civil in nature.

2023Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied. [10] Post-conviction proceedings are civil in nature.

2019Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011).

2018Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011).

2013We 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 . . . . 533 N.E.2d at 1201 .

2012Taylor v. State, 882 N.E.2d 777, 783 (Ind. Ct. App. 2008) (quoting Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989)). 4 Therefore, “[w]e 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.” Id.

2016Kien v. State, 866 N.E.2d 377, 381 (Ind.Ct.App.2007), trans. denied.

2014Kien v. State, 866 N.E.2d 377, 381 (Ind. Ct. App. 2007), trans. denied.

2007Benefiel v. State, 716 N.E.2d 906, 911 (Ind.1999), reh’g denied.

2006Benefiel v. State, 716 N.E.2d 906, 911 (Ind.1999), reh'g denied.

2017McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied.

2016McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012) (citing Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied), trans. denied.

2007See Gallagher v. State, 274 Ind. 235, 239 , 410 N.E.2d 1290, 1292 (1980) (“[T]he Equal Protection Clause of the United States Constitution prevents a state from imposing a more rigorous standard on petitioners seeking a belated appeal than on those seeking a timely appeal.”).

2007See Gallagher v. State, 274 Ind. 235, 239 , 410 N.E.2d 1290, 1292 (1980) (“[T]he Equal Protection Clause of the United States Constitution prevents a state from imposing a more rigorous standard on petitioners seeking a belated appeal than on those seeking a timely appeal.”).

2019I also agree that A.M.’s claim is not governed by the rigorous standard announced in Strickland v. Washington, 466 U.S. 668 (1984).

2012Therefore, rather than applying the rigorous standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), we instead judge post-conviction counsel by a lesser standard based on due-course-of-law principles.

2019Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003).

2018Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003).

2017Ind. Post-Conviction Rule 1(5). “‘A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court.’” Id. (quoting Shepherd, 924 N.E.2d at 1280 ).

2017Ind. Post-Conviction Rule 1(5). “‘A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court.’” Id. (quoting Shepherd, 924 N.E.2d at 1280 ).

2020“Because the [petitioner] is now appealing from a negative judgment, to the extent his appeal turns on factual issues, he must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002).

2017Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003); see Ind. Post-Conviction Rule 1(5). [11] As stated by our supreme court, “[a] petitioner who has been denied post- conviction relief faces a rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

2019Cartwright v. State, 962 N.E.2d 1217, 1221 (Ind. 2012); see, e.g., Addison v. State, 962 N.E.2d 1202, 1213 (Ind. 2012).

2012See, e.g., Addison, 962 N.E.2d at 1212-13 .

2014Id.; see also Hill v. State, 960 N.E.2d 141, 147 (Ind. 2012) (reaffirming the Baum standard as the appropriate standard for evaluating post- conviction counsel’s performance).

2012Id.; see also Hill v. State, 960 N.E.2d 141, 147 (Ind. 2 Specifically, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which Emerson argues applies in this case, does not apply to our evaluation of the effectiveness of counsel in a post-conviction proceeding.

2024In this arena, precedent affording protection for candidacy “can be best described as a legal morass.” Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).

2024See Bullock v. Carter, 405 U.S. 134 , 142–43 (1972) (“the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review” but “laws that affect candidates always have at least some theoretical, correlative effect on voters”); see also Clements v. Fashing, 457 U.S. 957, 963 (1982) (explaining there is no fundamental right for a candidate to run for office).

2024See Bullock v. Carter, 405 U.S. 134 , 142–43 (1972) (“the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review” but “laws that affect candidates always have at least some theoretical, correlative effect on voters”); see also Clements v. Fashing, 457 U.S. 957, 963 (1982) (explaining there is no fundamental right for a candidate to run for office).

2020On appeal from the denial of post-conviction relief, the petitioner “faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post- conviction court.” Jent v. State, 120 N.E.3d 290, 92-93 (Ind. Ct. App. 2019), trans. denied.

2020The petitioner has an “affirmative duty to present evidence sufficient” to prove a right to relief and “may not rely on matters outside the record of the post- conviction hearing.” Henry v. State, 170 Ind. App. 463, 466 , 353 N.E.2d 482, 484 (1976). [7] “A petitioner who has been denied post-conviction relief faces a rigorous standard of review.” DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

2020The petitioner has an “affirmative duty to present evidence sufficient” to prove a right to relief and “may not rely on matters outside the record of the post- conviction hearing.” Henry v. State, 170 Ind. App. 463, 466 , 353 N.E.2d 482, 484 (1976). [7] “A petitioner who has been denied post-conviction relief faces a rigorous standard of review.” DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

2019Cartwright v. State, 962 N.E.2d 1217, 1221 (Ind. 2012); see, e.g., Addison v. State, 962 N.E.2d 1202, 1213 (Ind. 2012).

2018See State v. Johnson , 503 N.E.2d 431 , 433 (Ind. Ct. App. 1987), trans. denied (concluding that, while an unapproved breathalyzer test "would not have been admissible at trial ," it could be used to establish probable cause).

2018See Rhoades, 675 N.E.2d at 702 .

2013That said, in subsequent cases we have chosen to decide the issue “upon the supposition that in some degree a post-conviction petitioner is entitled to advice and assistance of counsel in a post-conviction proceeding, whether that entitlement is conferred by constitution or otherwise.” Evans v. State, 809 N.E.2d 338, 342 (Ind. Ct. App. 2004).

2012Taylor v. State, 882 N.E.2d 777, 783 (Ind. Ct. App. 2008) (quoting Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989)). 4 Therefore, “[w]e 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.” Id.

2005See Graves v. State, 823 N.E.2d 1193, 1195-97 (Ind.2005) (discussing the standard in Indiana state courts for reviewing counsel's performance in post-conviction proceedings); Baum v. State, 533 N.E.2d 1200, 1201 (Ind.1989) ("We adopt the standard that if [post-conviction] 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 [ 466 U.S. 668 , 104 S.Ct. 2052 , 80 LEd.2d 674 (1984) ].").