Petition for Rehearing — Elmer Dean Baker, Petitioner v. Indiana

NO: 24-5747

IN THE

SUPREME COURT OF THE UNITED STATES

il

Elmer.Dean Baker

Petitioner,

Ron Neal

Warden of the Indiana State Prison

Respondent,

On Petition for Writ of Certiorari to

Indiana: Supreme Court

PETITION FOR REHEARING

Elmer Dean Baker

Indiana State Prison

One Park Row

Michigan City, Indiana 46360

Petitioner - pro se

Page 1 of 12

TABLE OF CONTENTS Page

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TABLE OF AUTHORITIES

Cases Page

Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996)..........0..... 5

Arizona v. Fulminante, 499 U.S. 279 (1991).........c.cccccccccsssscessseensecessnevensaeseeesseenace 7

Baker v State, 948 N.E.2d 1169 (Ind. 2011)... cc ccccccccsecesseessecseesesseeenseeanees 6

Black & Decker, Inc. v. Robert Bosch Tool Corp., 260 Fed. Appx 284 2008........ 5

Boston v Mooney, 2015 U.S. Dist. LEXIS 148106(E.D. of PA 2015)... 9

Commonwealth v. Pizzo, 529 Pa.155, 602 A.2d 823,825(Pa.1992).......0..c 10

Eli Lilly and Co. v. Aradigm Corp., 376 F.3d 1352, 1359 (Fed. Cir. 2004)............ 4

Elliott v. Bd. of Sch. Trs. of Madison Consol. Sch., 876 F.3d 926 (7th Cir. 2017). 9

Gacy v. Welborn, 994 F.2d 305, 311 (1993)...........ccccceccccesscessscesscersenseceensceenseeene 5

Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 30 L. Ed. 2d 652 (1972)......000000.. 10

Hart v. Wal-Mart Stores, Inc. 360 F.3d 674, 680 (7th Cir. 2004)... 5

Hernandez v. Cepeda, 860 F.2d 260 (7th Cir. 1988)...........cc cece eeeeneeeneeseeeees 2)

Hibdon v. United States, 204 F.2d 834, 838 (6th Cir. 1953)... eee eeeees 6

5

5

Hunt v. Armour & Co., 185 F.2d 722 (7th {762 F. Supp. 2d 1117} Cir. 1950).......

Irvin v Dowd, 366 US 717, 6 L Ed 2d 751, 81 S Ct 1639 (1961)... ee

Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997).........ccccececeeeeseeeeeeeees 10

Key v. Rutherford, 645 F.2d 880, 883 (10th Cir. 1981)... ee ceccccceescesessesenes 5

Page 2 of 12

Lindh v. Murphy, 96 F.3d 856, 873 (7th Cir. 1996).....

Mathis v. United States, 136 S. Ct. 2243, 2249, 195 L. Ed. 2d 604 (2016)............

Perruquet v. Briley, 390 F.3d 505, 512 (7 Cir. 2004)

Perrywatson v United Airlines Inc., 762 F. Supp. 1107 (20087" Circuit.)...............

Phillips v. Cameron Tool Corp., 950 F.2d 488, 491 (7th Cir. 1991)...

Ross v State, 877 NE2d 829 (Ind. App. 2007)............

Saunders v. Rhode Island, 731 F.2d 81, 84-85 (1st Cir. 1984)... ee 1

Sincox v. United States, 571 F.2d 876, 878 (5th Cir. 1978)..........cececccseceeseeenes

Sullivan v. Louisiana, 508 U.S. 275 (1993)................

Thiel v. State Bar of Wisc., 94 F.3d 399, 404 (7th Cir. 1996)...........cc cece cece eee

United States v Maez, 960 F.3d 949 (7th Cir. 2020)...........ceeeceeeseeceesesececeseseseeees

United States v. Davenport, 2011 U.S. Dist. LEXIS 106949 (N.D. Ind. 2011)........

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978).......00..cc cece eens

United States v. Morris, 612 F.2d 483, 489 (10th Cir.

United States v. Pachay, 711 F.2d 488, 491 (2d Cir. 1983)............ cc eeeseeeeeeeees

United States v. Scalzitti, 578 F.2d 507, 512 (3d Cir.

United States v. Washington, 12 F.3d 1128 (D.C. Cir

United States v. Watson, 87 F.3d 927 (7th Cir. 1996)

Voda v. Cordis Corp., 536 F.3d 1311, 1321 (Fed. Cir

Woody's Grp., Inc. v. City of Newport,183 Cal. Rptr. 3d 318 (9' Cir. 2015)..........

INDIANA STATUTES

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PETITION FOR REHEARING

COMES NOW, Petitioner, pro se and respectfully submits:

1. On October 04, 2024 Petitioner filed Writ of Certiorari to Indiana Supreme Court;

2. Writ was docked under No. 24-5747 on October 11, 2024.

2. On the 16" day of December, 2024 this Court denied Petitioner’s Writ of

Certiorari.

Petitioner now, timely and in good faith, files this Petition for a Rehearing

pursuant to Rule 44 and submits he was denied unanimous verdicts in Counts | and II

and Due Process of Law at trial and in his State direct appeal.

ARGUMENT

Rehearing is necessary because Petitioner Baker successfully raised a challenge

to the Unanimity instruction his jury was given’ but the Indiana Supreme Court ignored

binding precedent of their Circuit and ruled the issue was barred to Petitioner because

his trial counsel did not anticipate a three years after trial change if Indiana’s unanimity

instruction law and pre-object accordingly.

Challenges to jury instructions are reviewed under the law of the regional circuit

where the court sits. Voda v. Cordis Corp., 536 F.3d 1311, 1321 (Fed. Cir. 2008) citing

Eli Lilly and Co. v. Aradigm Corp., 376 F.3d 1352, 1359 (Fed. Cir. 2004). Indiana is in the

* The Indiana Supreme Court ruled the unanimity instruction Petitioner’s jury was given at trial was

inadequate and completely change Indiana’s unanimity instruction law for child molest cases by adopting

a new one from the State of California and ruling it must be given in all future compatible Indiana cases.

Page 4 of 12

Seventh Circuit, and “Precedent in the Seventh Circuit holds that, in order to preserve an

issue for appeal, a party does not have to object to jury instructions that later become

erroneous under a change in the law”. Black & Decker, Inc. v. Robert Bosch Tool Corp.,

260 Fed. Appx 284 2008 U.S. App. LEXIS 207, citing Phillips v. Cameron Tool Corp., 950

F.2d 488, 491 (7th Cir. 1991). Where the claimed error in the jury instruction is based on

a change in the law that arose after trial, challenges to the jury instructions are reviewed

de novo. Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996); Key v.

Rutherford, 645 F.2d 880, 883 (10th Cir. 1981).

The Indiana Supreme committed an abuse of discretion and denied Baker due

process of law when it ignored binding precedent. See: Perrywatson v United Airlines

Inc., (January 10, 2014), 762 F. Supp. 1107 United States District Court of the 7" Circuit.

“Ours is a hierarchical judiciary, and judges of inferior courts must carry out decisions" of

their superiors”. /d, citing Hart v. Wal-Mart Stores, Inc. Associates' Health and Welfare

Plan, 360 F.3d 674, 680 (7th Cir. 2004); Gacy v. Welborn, 994 F.2d 305, 311 (1993);

United States v. Watson, 87 F.3d 927, 930 n.2(7th Cir. 1996); Thiel v. State Bar of Wisc.,

94 F.3d 399, 404 (7th Cir. 1996); Lindh v. Murphy, 96 F.3d 856, 873 (7th Cir. 1996)(en

banc); Hunt v. Armour & Co., 185 F.2d 722 (7th {762 F. Supp. 2d 1117} Cir. 1950).

Rehearing is necessary because Petitioner Baker's verdicts were not unanimous

and therefore are not legally sustainable. Rehearing is necessary because the Indiana

Supreme Court ruled Petitioner’s trial counsel had unknowingly waived his right to a

unanimous verdict. Rehearing is necessary because numerous federal courts have ruled

a unanimous verdict cannot be waived under [any] circumstance. Rehearing is necessary

because if a unanimous verdict cannot be voluntarily waived it certainly cannot be waived

Page 5 of 12

unintentionally and unknowingly. Rehearing is necessary because regardless of the

Heinousness of Petitioner's alleged crimes he is entitled to a fair trial. See: In, Irvin v

Dowd, 366 US 717, 6 L Ed 2d 751, 81 S Ct 1639 (1961), the Supreme Court noted that

a "fair trial in a fair tribunal is a basic requirement of due process" and stated that "this is

-true, regardless of the heinousness of the crime charged, the apparent guilt of the

“offender or the station in life which he occupies." 366 U.S. at 722. Id.

F The Indiana Supreme Court ruled Petitioner's record does not support that his

verdicts were the product of jury unanimity because the unanimity instruction his jury had

been given was fatally ambiguous, therefore there is no way anyone can tell from the

record which crimes Petitioner was found guilty of. So, three years after Petitioner's trial,

to correct the fatally ambiguous unanimity instruction for future Indiana criminal

defendant’s the Supreme Court changed Indiana’s unanimity instruction law by adopting

a new one from the state of California and modifying it for use in all future Indiana criminal

cases with facts similar to Petitioner’s.{Baker v State, 948 N.E.2d 1169 (Ind. 2011)}

See: Hibdon v. United States, 204 F.2d 834, 838 (6th Cir. 1953). (‘It must be

observed, however, that the requirement of a unanimous verdict is nowhere defined in

the Constitution as 'a privilege to be enjoyed.’ It is the inescapable element of due process

that has come down to us from earliest time. No federal case has been cited and none

can be found by independent research that holds or even remotely suggests that it may

be waived”). {204 F.2d 838}

The following federal courts have consistently held that the right to a unanimous

verdict is so important that it is one of the few rights of a criminal defendant that cannot,

under [any] circumstances, be waived. See United States v. Pachay, 711 F.2d 488, 491

Page 6 of 12

(2d Cir. 1983); United States v. Morris, 612 F.2d 483, 489 (10th Cir. 1979); United States

v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978); United Stafes v. Scalzitti, 578 F.2d 507,

512 (3d Cir. 1978); Sincox v. United States, 571 F.2d 876, 878 (5th Cir. 1978). Therefore,

if a defendant cannot voluntarily waive his right to a unanimous verdict then certainly in

all fairness, he cannot unintentionally waive that constitutional right.

A ion-tirianinous" verdict in a criminal case is a structural non-waivable error.

Structural errors are nof subject to the harmless error analysis. The United States

Supreme Court holds "structural errors,” include the right to a unanimous jury verdict

beyond a reasonable doubt, see Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182,

113 S. Ct. 2078 (1993); See: United States v Maez, 960 F.3d 949 (7th Cir. 2020) citing

Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)

("structural defects in the constitution of the trial mechanism ... defy analysis by 'harmless-

error’ standards") ld.

In Counts | and Il petitioner was charged under a divisible statute Ind. Code § 35-

42-4-3(a) and the Indiana Supreme Court ruled that the record was unclear as to exactly

what crime within Ind. Code § 35-42-4-3(a) each individual juror relied on to support their

verdicts. (948 N.E.2d 1169)

See Mathis v. United States, 136 S. Ct. 2243, 2249, 195 L. Ed. 2d 604 (2016). If

the statutory alternatives are different elements, then the statute is considered "divisible"

in the sense that it divides into multipie crimes. Mathis, 136 S. Ct. at 2249. For that kind

of statute, the federal court must "determine what crime, with what elements, a defendant

was convicted of" before counting the conviction as a predicate under the Armed Career

Criminal Act. /d.

Page 7 of 12

See: United States v. Davenport, 2011 U.S. Dist. LEXIS 106949 (N.D. Ind.,

September 21, 2011) discussing Indiana Statute 35-42-4-3 which the State had charged

Petitioner under in Counts | and Il. “The structure of Indiana's child molesting statute

shows that the Indiana General Assembly considers different types of sexual contact and

the varying circumstances under which the contact-takes place to present different levels

of risk that are punishable in different ways. The™Indiana statute [is] divisible in that it

defines different categories of child molesting. It isza class C felony if it involves touching

with intent to arouse or to satisfy the sexual desinesvct either the child or the older person,

a Class B felony if it involves sexual intercourse or deviate sexual conduct, and a Class A

felony where the crime involves certain aggravating factors, such as "by using or

threatening the use of deadly force or while armed with a deadly weapon." Ind. Code 35-

42-4-3. The structure of Indiana's child molesting statute shows that the Indiana General

Assembly considers different types of sexual contact and the varying circumstances

under which the contact takes place to present different levels of risk that are punishable

in different ways. /d.

In Petitioner’s initial Writ he cited numerous places in the record of trial where the

jury was presented with alleged evidence he had only committed the Class C elements

of Indiana Statute 35-42-4-3 as to Counts | and Il’s Class A required elements; and it has

been established there is no way of knowing which alleged evidence the jury relied on to

support their verdicts.

The general unanimity instruction Petitioner's jury was given had been an accepted

and widely used instruction in Indiana for decades and trial counsel had no reason to

object under the assumption Indiana would considered it constitutionally infirm and

Page 8 of 12

replace it three years later. See: Ross v State, 877 NE2d 829 (Ind. App. 2007).

("Nonetheless, we cannot deem trial counsel ineffective for failing to note an incorrect or

overbroad statement of the law that apparently has escaped the notice of our courts for

twenty years”). {877 N.E.2d 837} See also, United States v. Washington, 304 U.S. App.

D.C. 263, 12 F.3d 1128, 1139 (D.C. Cir. 1994) (recognizing doctrine and noting that it

"reflects the principle that it would be unfair, and even contrary to the efficient

administration of justice, to expect a defendant to object at trial where existing law

—

appears so clear as to foreclose any possibility of success." /d.

As the Seventh Circuit Court of Appeals stated, "It is not fair to change the rules

so substantially when it is too late for the affected parties to change course." Elliott v. Bd.

of Sch. Trs. of Madison Consol. Sch., 876 F.3d 926, 935 (7th Cir. 2017) ; see also

Woody's Grp., Inc. v. City of Newport Beach, 233 Cal. App. 4th 1012, 183 Cal. Rptr. 3d

318, 330 (Cal. Ct. App. 2015) ("[C]hanging the rules in the middle of the game does not

accord with fundamentally fair process.").

See: Hernandez v. Cepeda, 860 F.2d 260 (7th Cir. 1988) where in Justice

Cudahy’s concurring opinion he held: “... a change in the law after trial would constitute

an "exceptional circumstance" demanding flexibility in the interests of {1988 U.S. App.

LEXIS 20} justice. To hold otherwise would be to require trial attorneys to be seers as

well as advocates, an unfortunate result”. /d.

Petitioner should not be faulted for his trial counsels failure to anticipate a three

years after trial change in Indiana’s unanimity instruction law and the issue of nonunanimity should not be foreclosed to him. See: Boston v Mooney, 2015 U.S. Dist. LEXIS

148106(E.D. of PA 2015), Holding, (“how can Attorney El-Shabazz be faulted for not

Page 9 of 12

requesting an instruction not generally used in Pennsylvania practice?”) (“This court is

mindful that defense attorneys cannot predict future developments in the law and,

therefore, their representation must be examined by the law in effect at the time”) /d.;

Commonwealth v. Pizzo, 529 Pa.155, 602 A.2d 823,825(Pa.1992); See: Saunders v.

Rhode Island, 731 F.2d 81, 84-85 (1st Cir. 1984), Because the basis for objection to jury

instruction No. 51 became known only after the Wyoming Supreme Court answered the

questions certified to it by the district court, which was after the jury had already returned

its special verdict, we will review jury instruction No. 51 under the same standard as if an

objection had been timely made. /d. at 85.

Although Petitioner's Pro Se Writ and Rehearing Petition may be inartfully drafted,

the “basic rational’ is “readily discernible” and as a pro se petitioner, Baker prays his

Petition be liberally construed pursuant to Perruquet v. Briley, 390 F.3d 505, 512 (7" Cir.

2004). As Baker was without counsel, his petition is entitled to a liberal construction, e.g.,

Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) (citing Haines v. Kerner, 404

U.S. 519, 520-21, 92 S. Ct. 594, 595-96, 30 L. Ed. 2d 652 (1972)), and his

petition contains enough detail to describe his non-unanimous verdicts claims that is

within the power of a federal court to address. The United States Supreme Court holds

allegations of a pro se complaint to less stringent standards than formal pleadings drafted

by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96, 30 L. Ed. 2d

652 (1972)).

Page 10 of 12

CONCLUSION

Rehearing should be Granted and Petitioners Writ of Certiorari should also be

GRANTED.

This Petition including footnotes contains 2,126 words.

Respectfully submitted this 27'" day of January, 2024.

ED O.samn Per

Elmer Dean Baker

Petitioner, Pro Se

Page 11 of 12

CERTIFICATE OF PRO SE PETITIONER

Petitioner, pro se, Elmer Dean Baker, pursuant to Rule 44 of the United States

Supreme Court hereby certifies that his Petition for Writ of Certiorari was filed on October

1, 2024 and received by this Court and docketed on October 11, 2024 and was denied

on December 16, 2024 and Petitioner submits this Petition for Rehearing on the 27'" day

of December, 2024 and it is presented in good faith and not for delay and the grounds in

this Petition are limited to intervening circumstances of substantial or controlling effect.

ZRynn W216 Rok

Elmer Dean Baker

DOC# 913003

Indiana State Prison

One Park Row

Michigan City, Indiana 46360

Page 12 of 12

NO: 24-5747

IN THE

SUPREME COURT OF THE UNITED STATES

Elmer Dean Baker

Petitioner,

V.

Ron Neal

Warden of the Indiana State Prison

Respondent,

PROOF OF SERVICE

|, Elmer Dean Baker, Petitioner, pro se, DOC # 913003 do hereby certify that | have, this

27" day of December, 2024, served copies of the Petition for Rehearing, on the clerk of

the United States Supreme Court at 1 First Street N.E., Washington DC 20543-0001 and

the Attorney General of Indiana, Ind. Gov. Center S., 5'" Floor, 302 West Washington St.,

Indianapolis, IN 46204-2770, pursuant to Supreme Court Rule 29, by submitting same

to a designated employee of the Indiana State Prison for prompt processing and mailing

by authorized prison personnel within the facility mailroom, with sufficient first class

postage affixed. Petitioner also declares/verifies under penalties of perjury that the

foregoing is true and correct.

Respectfully submitted, this 27'" day of December, 2024.

inn Waa Barn

Elmer Dean Baker, Petitioner, pro se

DOC # 913003, Indiana State Prison

One Park Row, Michigan City, IN. 46360-6597

Friday, December 27, 2024

Scott S. Harris, Clerk:

Supreme Court of the United States

One First Street, N.E.

Washington, DC 20543-0001

Mr. Harris,

Please file the enclosed Petition for Rehearing / Certificate of pro se

counsel and Proof of Service in the Supreme Court of the United States

under Case No. 24-57-47.

Thank You.

Sincerely,

S2QwsxW som Barr

Elmer Dean Baker

DOC# 913003

Indiana State Prison

One Park Row

Michigan City, Indiana 46360

RECEIVED

JAN 16 2025

SUPREME COURT US.