Donnegan, 809 N.E.2d at 974-76. On May 19, 2005, Donnegan filed a pro se petition for post-conviction relief, and later obtained counsel to represent him. Donnegan v. State, 889 N.E.2d 886, 890 (Ind. App. Ct. 2008) (Donnegan II). In the post-conviction proceedings, Donnegan raised the following claims: (1) the prosecutor committed a Brady violation by failing to disclose that he had entered into an agreement with two witnesses in exchange for their testimony; and (2) his appellate counsel was ineffective in failing to raise an argument based on Blakely v. Washington, 542 U.S. 296 (2004), on appeal. Following an evidentiary hearing, the trial court denied post-conviction relief. Donnegan II, 889 N.E.2d at 891.
Only the precedent available to appellate counsel at the time of the direct appeal is relevant to our determination of whether counsel was ineffective. Donnegan v. State, 889 N.E.2d 886, 893 (Ind.Ct.App.2008), trans. denied. This is because “[a]ppellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law.”
) Indiana law forbids parties from raising new claims in a petition to transfer, in a petition for rehearing, or in a reply brief. See Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App. 2008) (citing Bunch v. State, 778 N.E.2d 1285, 1290 n. 3 (Ind. 2002) (affirming that an issue not raised in the appellant's principal brief is waived); Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990) (finding that the defendants waived an issue raised for the first time in their brief in support of petition to transfer). As a result, Mishler's first three claims are procedurally defaulted.
Indiana law forbids parties from raising new claims in a petition to transfer, in a petition for rehearing, or in a reply brief. See Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App. 2008) (citing Bunch v. State, 778 N.E.2d 1285, 1290 n. 3 (Ind. 2002) (affirming that an issue not raised in the appellant's principal brief is waived); Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990) (finding that the defendants waived an issue raised for the first time in their brief in support of petition to transfer). Thus, this claim, too, is procedurally defaulted.
September 18, 2008. Appeal from the 889 N.E.2d 886. Grant and Denial of Cases in Which Transfer to the Indiana Supreme Court has been Sought Transfer denied.
[42] Davis claims his appellate counsel, Mark Bates, misstated the facts on appeal, causing a panel of this Court to erroneously affirm his conviction. The Sixth Amendment entitles a criminal defendant to the effective assistance of counsel not only at trial, but also during a first appeal as of right. Donnegan v. State, 889 N.E.2d 886, 892 (Ind. Ct. App. 2008), trans. denied. The standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel.
1.The purpose of post-conviction relief is to give the petitioner an opportunity to argue issues that were unavailable or unknown during trial or direct appeal. Donnegan v. State, 889 N.E.2d 886 (Ind.Ct.App.2008). On post-conviction relief, the petitioner has the burden of establishing his claims by a preponderance of the evidence.
. Similarly, in Donnegan v. State, 889 N.E.2d 886, 892–93 (Ind.Ct.App.2008), trans. denied, we determined that appellate counsel was not ineffective for not raising a Blakely challenge to a defendant's sentence affirmed on direct appeal in June 2004. Consequently, we conclude that Meyer has not shown that the objection to his sentence would have been sustained if his trial counsel had objected to his sentencing based upon Blakely.
Here, Reiner again relies on our decision in Halferty. But like trial counsel, “[a]ppellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law .” Donnegan v. State, 889 N.E.2d 886, 893 (Ind.Ct.App.2008), trans. denied. Because Halferty was decided after Reiner's conviction in 2009, it is inapplicable to the instant matter.
Moreover, “[a]ppellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law.” Donnegan v. State, 889 N.E.2d 886, 893 (Ind.Ct.App.2008), trans. denied. See also Williamson v. State, 798 N.E.2d 450, 454 (Ind.Ct.App.2003) (“For purposes of ineffective assistance of appellate counsel claims, we judge the reasonableness of appellate counsel's strategic decisions based upon precedent that was available at the time the brief was filed.”), trans. denied.