Shaw v. Wilson, No. 12-1628

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtWOOD
PartiesTROY R. SHAW, Petitioner-Appellant, v. BILL WILSON, Respondent-Appellee.
Decision Date24 July 2013
Docket NumberNo. 12-1628

TROY R. SHAW, Petitioner-Appellant,
v.
BILL WILSON, Respondent-Appellee.

No. 12-1628

United States Court of Appeals For the Seventh Circuit

ARGUED APRIL 30, 2013
DECIDED JULY 24, 2013


Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:09-cv-325-JMS-WGH—Jane E. Magnus-Stinson, Judge.

Before FLAUM, WOOD, and HAMILTON, Circuit Judges.

WOOD, Circuit Judge. Troy Shaw and two other men were arrested and charged by the State of Indiana in an information with aggravated battery after Brett King was beaten to death outside a motel in Fort Wayne. Shaw denied participating in King's beating, but the other two men, in exchange for prison sentences of under three years, agreed to plead guilty to voluntary manslaughter and to testify against Shaw. The state then

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moved to amend the information to elevate the charge against Shaw from aggravated battery to murder. The trial court granted the state's motion over Shaw's objection that the murder charge was barred by an indiana statue that limits the time for amending charging documents. Shaw was convicted after a jury trial and sentenced to 60 years in prison.

On direct appeal, Shaw's new lawyer abandoned trial counsel's contention that the information was amended too late and instead pressed a futile claim that the evidence against Shaw was insufficient to support his conviction. Not surprisingly, the appellate court was unpersuaded; appellate counsel dropped the case at that point and did not file a petition to transfer with the Supreme Court of Indiana. Shaw persisted with a petition for post-conviction relief in the indiana courts, but that too failed all the way up the line to the state supreme court. Shaw then turned to the federal court with a petition under 28 U.S.C. § 2254. There he argued again that his appellate lawyer's decision to forgo challenging the validity of the amended information in favor of a frivolous sufficiency challenge constituted ineffective assistance of counsel in violation of the Sixth Amendment. The district court denied relief, but we conclude—with full cognizance of the high bar that such a case must clear—that the Indiana appellate court's decision to the contrary is an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and the elaboration on Strickland of Smith v. Robbins, 528 U.S. 259 (2000). We therefore vacate the judgment of the district court and remand with instructions to issue

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a writ of habeas corpus unless the State of Indiana grants Shaw a new direct appeal in which he will have the opportunity to advance the argument that his appellate counsel should have raised.

I

A. Offense and Trial

Shaw was 18 years old and had just finished high school at the time of the deadly attack that landed him in prison. Days earlier, he had been recruited to sell magazine subscriptions as part of a traveling sales team, and he arrived in Fort Wayne, Indiana, with the team on June 5, 2000. The trouble began when his boss, Eric Werczynski, rented several motel rooms for the group and in one of those rooms encountered and confronted Brett King, an uninvited stranger. King fled, but as he ran away from the motel, Werczynski yelled to his employees, "Get the motherfucker!" Two of them, Steven Johnson and Chris Starling, obliged, chasing King down and knocking him into a ditch. Several other team members then joined Johnson and Starling in punching and kicking King. He died in the ditch from multiple blows to his head.

The attackers had disbanded by the time police arrived, but Johnson, Shaw, and a third team member, Benjamin Brooks, were arrested and charged with aggravated battery. Shaw denied even being present during the fatal beating, but Johnson and Brooks admitted participating, and at some point they told authorities that

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Shaw had been the most aggressive of the attackers. The two negotiated sentences of two and a half years in prison (eight-year sentences with five and half of those years suspended) in exchange for pleading guilty to involuntary manslaughter and agreeing to testify against Shaw.

After Johnson and Brooks cut their plea deal, the state moved to amend the information to charge Shaw with murder rather than aggravated battery. His trial lawyer objected on the basis of Indiana Code § 35-34-1-5 (1982), a statute that had long limited prosecutors' discretion to amend pending charges. The version of the statute then in effect specified that an amendment of "substance" could be made up to 30 days before the "omnibus date" (defined by state law as "a point in time from which various deadlines . . . are established," I.C. § 35-36-8-1), and an amendment of mere "form" could be made even later if not prejudicial. Because the precise language of the 1982 version of the statute is important to Shaw's case, we set out the relevant portions here:

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to:
(1) thirty (30) days if the defendant is charged with a felony; or
(2) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors; before the omnibus date. When the information or indictment is

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amended, it shall be signed by the prosecuting attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.
(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense.

I.C. § 35-34-1-5 (1982).

Although no Indiana appellate court ever had invalidated an amendment under the 1982 law, in 1998 in Haak v. Indiana, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Supreme Court held unequivocally that if an amendment "was of substance, or prejudicial to the defendant even if of form, it was impermissible under the statute" from 30 days before the omnibus date. Shaw's omnibus date was July 31, 2000, and the amendment was not proposed until 17 months later. Nevertheless, despite the three-year-old precedent in Haak, the trial court granted the state's motion. Shaw's attorney then asked

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for a continuance to permit time to prepare a defense to the murder charge, and he was given two months.

At trial, Johnson and Brooks both testified that Shaw had kicked King in the head repeatedly and viciously. In his defense, Shaw called an inmate who had shared a jail cell with Brooks. The inmate testified that he overheard Brooks on the telephone blaming his boss, Werczynski, for the fatal blows to King's head. (According to media reports, Werczynski and Starling were not charged with a crime until after Shaw's conviction, at which point they were charged, respectively, with "aiding battery" and "assisting a criminal." Starling pleaded guilty and was sentenced to serve 18 months in prison. Werczynski was convicted at trial and sentenced to six years, of which he was expected to serve under three. See Sara Eaton, 5th Salesman Gets 6 Years for Role in Motel Slaying, FORT WAYNE J. GAZETTE (Aug. 12, 2003).) Shaw testified as well, insisting that he had gone to sleep rather than follow the crowd to the ditch where King was killed. The jury believed Johnson and Brooks and found Shaw guilty of murder.

A public defender, Gregory Miller, handled Shaw's appeal and settled on a single appellate argument: The prosecution's evidence was insufficient to support the jury's verdict. Miller filed a short brief in which he observed that "there is conflicting testimony as to whether the Defendant, Troy Shaw, was in the ditch where Brett King was murdered." This observation was both true and catastrophic for Shaw's appeal; it amounted to a concession that the appeal was doomed because

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Indiana courts (like federal courts) must resolve all evidentiary conflicts in the prosecution's favor, and they must reject a sufficiency challenge unless no "reasonable trier of fact" could have found the defendant guilty. See Jackson v. Indiana, 925 N.E.2d 369, 375 (Ind. 2010). Shaw's conviction was affirmed in a short opinion deferring to the jury's assessment of the witnesses' credibility. See Shaw v. Indiana, No. 02A03-0205-CR-132 (Ind. Ct. App. May 7, 2003).

B. Fajardo v. Indiana

Roughly four years after Shaw lost his direct appeal, the Indiana Supreme Court revisited the issue of untimely amendments of substance in Fajardo v. Indiana, 859 N.E.2d 1201 (Ind. 2007). The trial court in that case had allowed the prosecution to add a second count of child molestation to the information after it concluded that the amendment would not prejudice the defendant. Tellingly, the Indiana Supreme Court reversed and confirmed that it meant what it had said in Haak about the proper reading to be given to I.C. § 35-34-1-5. Citing Haak and declaring that "the statute is clear," the court concluded that "[b]ecause the challenged amendment in this case sought to...

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