Bahm v. State
| Decision Date | 29 July 2003 |
| Docket Number | No. 10A01-0208-PC-317.,10A01-0208-PC-317. |
| Citation | 794 N.E.2d 444 |
| Parties | James M. BAHM, II, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
James M. Bahm, II, Tell City, IN, appellant pro se.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
James Bahm petitions for rehearing of our opinion dated May 29, 2003. We grant his petition in order to clarify for Bahm the impact of our prior holdings upon the issues and arguments he may raise at the hearing on remand.
Issues available, but not raised, at trial and on direct appeal are waived for post-conviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001), reh'g denied, cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002). In addition, our supreme court has instructed that allegations of fundamental error are not cognizable in post-conviction proceedings. See Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002)
. Consequently, in a post-conviction petition or at the hearing thereon, Bahm may not argue that his convictions should be reversed because of insufficient evidence or inappropriate jury instructions.
Nevertheless, issues waived as free-standing arguments may be raised in post-conviction proceedings as arguments supporting a claim of ineffective assistance of trial or appellate counsel. See, e.g., Timberlake, 753 N.E.2d at 597-98
(); Hubbard v. State, 696 N.E.2d 72, 74 (Ind.Ct. App.1998) ().
However, for an argument to be available in post-conviction proceedings as a reason why counsel was ineffective, the petitioner must have raised such ground in his petition for post-conviction relief. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001)
(), reh'g denied, cert. denied, 535 U.S. 1061, 122 S.Ct. 1925, 152 L.Ed.2d 832 (2002). If, in his petition for post-conviction relief, Bahm asserted his counsel was ineffective because counsel failed to question the sufficiency...
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State v. Syed
...intention to achieve finality in the context of post-conviction litigation.22 Finally, recognizing that the case of Bahm v. Indiana, 794 N.E.2d 444 (Ind. Ct. App. 2003), is only persuasive authority for us, we nevertheless observe that our holding in the present case is consistent with that......
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State v. Syed
...intention to achieve finality in the context of post-conviction litigation.22 Finally, recognizing that the case of Bahm v. Indiana , 794 N.E.2d 444 (Ind. Ct. App. 2003), is only persuasive authority for us, we nevertheless observe that our holding in the present case is consistent with tha......
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Taylor v. State
...support of his client's claim, in [Bahm v. State, 789 N.E.2d 50, 61-62 (Ind.Ct.App.2003), clarified on reh'g on other grounds, 794 N.E.2d 444 (Ind.Ct.App.2003), trans. denied,] ... counsel appeared at the post-conviction hearing and presented no evidence in support of his client's claim. "W......
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Taylor v. State
...581, 588 n. 10 (Ind.2001); see also Bahm v. State, 789 N.E.2d 50, 61 (Ind.Ct.App.2003), clarified on reh'g on other grounds, 794 N.E.2d 444 (Ind.Ct.App.2003), trans. denied. No transcript of the underlying trial was tendered to the post-conviction court. Although there was some discussion d......