Appendix — Hill v. Wilson (No. 08-42)

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APPENDIX A— OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DECIDED MARCH 10, 2008

In the

UNITED STATES COURT OF APPEALS

for the Seventh Circuit

No. 06-2777

ASHER B. HILL,

Petitioner-Appellant,

v.

BILL WILSON, Superintendent,

Westville Correctional Facility,

Respondent-Appellee.

Argued February 22, 2008—Decided March 10, 2008

Before EASTERBROOK, Chief Judge, and BAUER

and POSNER, Circuit Judges.

EASTERBROOK, Chief Judge. Asher Hill

entered a liquor store in Indianapolis, shot the clerk,

and stole the contents of the cash register. For this

conduct he has been convicted of several offenses and

sentenced to life imprisonment without possibility of

parole, because his many cvunvictions make him a

habitual offender under Indiana law. The clerk survived

and was prepared to testify against Hill but suffered a

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Appendix A

heart attack just before trial. The judge postponed the

trial for two months; Hill contends, in this proceeding

under 28 U.S.C. § 2254, that by doing this the judge

violated two of his constitutional rights. The state

judiciary rejected these arguments, Hill v. State, 773

N.E.2d 336 (Ind.App.2002), 777 N.E.2d 795 (Ind.App.

2002), as did a federal district judge, Hill u. McBride,

2006 U.S. Dist. LEXIS 39599 (N.D.Ind. Mar. 30, 2006).

Hill invokes the speedy trial clause and the right to

choose between counsel and self-representation. The

state judge violated both rights at once, he maintains,

by deferring the trial until the clerk had recovered. Hill,

who was representing himself in the state proceedings,

opposed the delay on the basis of the state’s speedy-

trial statute, which provides that a trial may not be

postponed on account of a missing witness when the

defendant agrees that the prosecutor may use, as

evidence, the prosecutor’s version of what the witness

would say if available to testify. Ind.Code § 35-36-7-

2(b)(1). Hill agreed that the prosecution could introduce

a narrative summarizing the clerk’s likely testimony.

Evidently he thought that such an antiseptic

presentation would resonate less with the jury than the

appearance in court of a victim who would identify Hill

as the assailant and add details that might be omitted

from a summary. The trial judge refused to proceed,

however, stating that he thought it inappropriate to

conduct a proceeding that could end in life imprisonment

without the principal victim and witness. The state’s

appellate court held this decision a mistake, given

§ 35-36-7-2(b)(1), but affirmed the conviction because

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Appendix A

Hill received a fair trial that satisfied all constitutional

requirements.

Hill insists that the violation of state law also offends

the federal Constitution. The speedy-trial clause allows

a trial to be postponed for a good reason, he allows, but

this postponement (which lasted 56 days) was for a bad

reason—at least as Indiana classifies reasons for delay.

Moreover, he maintains, by rejecting his willingness to

proceed on a written summary of the clerk’s evidence

the judge violated his right to self-representation.

See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,

45 L.Ed.2d 562 (1975).

A federal court may afford relief to a state prisoner

if the state court’s decision was “contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States”. 28 U.S.C. § 2254(d)(1). Hill does not

identify any decision of the Supreme Court holding that

even remotely comparable events violate the

Constitution. Instead he invokes principles of very high

generality—such as Faretta’s holding that there is a

right of self-representation—and argues that these

principles cover the waterfront. That’s not sound; he

might as well point to the Bill of Rights itself. The

Supreme Court has held that a right becomes “clearly

established” only when a course of decisions has

established how the Constitution’s grand generalities

apply to a class of situations. See, e.g., Wright v. Van

Patten, U.S. ,128S.Ct. 743, 169 L.Ed.2d 583 (2008);

Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166

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Appendix A

L.Ed.2d 482 (2006). Indiana did not transgress any right

“clearly established” by this standard; indeed, the state

court did not commit a constitutional error by any

standard.

We start with self-representation. A court cannot

interpose an unwanted lawyer between the defendant

and the tribunal or refuse to accept from the defendant

motions that it would entertain if made by counsel.

See McKaskle v. Wiggins, 465 U.S. 168, 178-79, 1048.Ct.

944, 79 L.Ed.2d 122 (1984). The state judge did not do

either of these things. Hill can prevail only if the sixth

amendment creates a rule that motions made pro se

must be granted (or, perhaps, that no state court may

err in ruling on a proposal made by a defendant who

represents himself). No decision of the Supreme Court

clearly establishes such a right.

The state judge said enough to show that he would

have postponed the trial whether or not Hill was

representing himself. A request that would be denied,

if presented by counsel, may be denied if presented by

the accused personally. Hill’s argument entails the

proposition that, if he had chosen to be represented by

counsel, who (like Hill) had consented to the use of a

proffer in lieu of testimony, and the judge had postponed

the trial nonetheless, then the state would have violated

Hill’s right to have the assistance of counsel for his

defense. The problem that occurred in this proceeding

is unrelated to the right to have or abjure counsel’s aid.

The judge did not refuse to allow Hill to dispense with

counsel, or establish a category of arguments that only

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Appendix A

a lawyer can present, but simply made an error of state

law when deferring the trial. And errors of state law do

not justify collateral relief under § 2254. See, e.g.,

Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 124

L.Ed.2d 306 (1993); Estelle v. McGuire, 502 U.S. 62, 112

S.Ct. 475, 116 L.Ed.2d 385 (1991).

As for the right to a speedy trial: Hill enjoyed one.

The trial occurred almost exactly one year after Hill’s

arrest and less than two months after the hearing at

which he proposed to dispense with the clerk’s

testimony. The Supreme Court has never suggested that

so brief an interval between arrest and trial violates the

Constitution—though it has held that much longer

delays do not. See, e.g., Barker v. Wingo, 407 U.S. 514,

92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (five years and

three months); United States v. Loud Hawk, 474 U.S.

302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (more than

seven years). Hill tries to bootstrap an error of state

law into a violation of the Constitution by arguing that

the state law shows that the reason for delay was

impermissibie. What reasons for delay count as good

and bad for constitutional purposes depends, however,

on the Constitution rather than state law.

The reason that Hill wants to label a bad one-waiting

for the restoration to health of a major witness—is one

that the Supreme Court has included in the category of

good reasons for delay. See Barker, 407 U.S. at 531, 92

S.Ct. 2182 (“a valid reason, such as a missing witness,

should serve to justify appropriate delay”). Live

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Appendix A

testimony has value even when the defense prefers a

paper substitute:

iT ]he prosecution is entitled to prove its case

by evidence of its own choice, or, more exactly,

...acriminal defendant may not stipulate or

admit his way out of the full evidentiary force

of the case as the Government chooses to

present it. The authority usually cited for this

rule is Parr v. United States, 255 F.2d 86

(CA5), cert. denied, 358 U.S. 824, 79 S.Ct. 40,

3 L.Ed.2d 64 (1958), in which the Fifth Circuit

explained that the “reason for the rule is to

permit a party ‘to present to the jury a picture

of the events relied upon. To substitute for

such a picture a naked admission might have

the effect to rob the evidence of much of its

fair and legitimate weight.’ ” 255 F.2d, at 88

(quoting Dunning v. Maine Central R. Co.,

91 Me. 87, 39 A. 352, 356 (1897)).... Unlike an

abstract premise, whose force depends on

going precisely to a particular step in a course

of reasoning, a piece of evidence may address

any number of separate elements, striking

hard just because it shows so much at once;

the account of a shooting that establishes

capacity and causation may tell just as much

about the triggerman’s motive and intent.

Evidence thus has force beyond any linear

scheme of reasoning, and as its pieces come

together a narrative gains momentum, with

power not only to support conclusions but to

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Appendix A

sustain the willingness of jurors to draw the

inferences, whatever they may be, necessary

to reach an honest verdict. This persuasive

power of the concrete and particular is often

essential to the capacity of jurors to satisfy

the obligations that the law places on them.

Old Chief v. United States, 519 U.S. 172, 186-87, 117

S.Ct. 644, 1386 L.Ed.2d 574 (1997). States are free to take

a different view, but they do so as a matter of their own

law. The Constitution’s meaning does not change from

state to state, and year to year, according to the majority

vote of a local legislature.

The best way to conduct analysis under § 2254 is to

assume that the state wants to act exactly as its officers

(including its judges) have done, and then ask whether

the federal Constitution countermands that decision.

See, e.g., Gordon v. Degelmann, 29 F.3d 295, 300-01 (7th

Cir.1994); United States v. Martin, 399 F.3d 879 (7th

Cir.2005). The Constitution does not prevent a state from

waiting two months for the principal witness (and victim)

to recover and testify in person. See Barker, 407 U.S. at

521-22, 92 S.Ct. 2182 (“If, for example, the State moves

for a 60-day continuance, granting that continuance is

not a violation of the right to speedy trial unless the

circumstances of the case are such that further delay

would endanger the values the right protects.”).

It follows that Indiana has not contravened any clearly

established rule of federal law.

AFFIRMED

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APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF INDIANA, HAMMOND

DIVISION ENTERED MARCH 30, 2006

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NO. 2:04-CV-506 PS

ASHER HILL,

Petitioner,

V.

DAN MCBRIDE,

Respondent.

IPINION AND ORDER

On December 7, 2004, pro se Petitioner Asher Hill,

an inmate at the Maximum Control Facility in Westville,

Indiana, filed a Petition pursuant to 28 U.S.C. § 2254.

The Response to the order to show cause filed by the

Attorney General of Indiana demonstrates the

necessary compliance with Lewis v. Faulkner, 689 F.2d

100 (7th Cir.1982). For the following reasons, Hill’s

Petition is denied.

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Appendix B

I. FACTS

The facts as detailed below-come from the Indiana

Court of Appeals opinion from the direct appeal in this

matter. See Hill v.. State, 773 N.E.2d 336 (Ind.Ct.App.

2002). In summary, on May 9, 2000, a robber entered a

liquor store in Indianapolis and shot the cashier. The

robber insisted that a patron open the cash register.

The patron was unable to do so, and therefore

unplugged the register and gave it to the robber. The

robber then ordered the patron to the floor. While on

the floor, the patron got a good view of the robber’s

legs and feet. The robber then threw the cash register

to the ground, kicked it open and took money out. The

robber was described as an African-American male, five

feet, eleven inches tall, who was wearing jean shorts,

white tube socks, tennis shoes and a long sleeve, hooded

white jacket. After the robber left the store, the patron

got up from the floor and called the police. The call came

in to police dispatch at 9:43 p.m.

Two minutes later at 9:45 p.m., a witness saw a gray

Mazda run into a tree approximately one-half mile north

of the liquor store that had been robbed. He then called

the police to report the accident. Before the police could

arrive, however, Park Ranger Jerald Knuckles

happened upon the scene and saw the Mazda up against

the tree with the engine running and the windshield

wipers on. He went up to the car to investigate, but it

was empty. Knuckles opened the car door and saw a gun

on the passenger seat, which he recovered. Money was

also found strewn about : 2ar and in the car. Also found

abandoned in the area was a beige-colored jacket.

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Appendix B

Ballistics tests later confirmed that the gun

recovered from the Mazda was the same weapon that

was used to shoot the cashier at the liquor store. Hill’s

fingerprints were found on the driver’s side window of

the Mazda, and it was proved that the Mazda belonged

to Hill’s ex-girlfriend. There was further evidence

linking Hill to the Mazda. Approximately a month before

the robbery, he had been pulled over in that car during

a routine traffic stop.

At around 9:45 p.m. on the night of the robbery, Hill

knocked on the door of a home in the area of the robbery.

He told the owner of the home that he had just been

carjacked, and the homeowner described Hill as out of

breath. Hill was wearing jean shorts, tennis shoes and

white socks. Because she thought it unusual that Hill

did not report the carjacking to the police, the owner of

the home called 9-1-1. The police arrived on the scene

within minutes of the homeowner’s call. Hill had $392 in

cash on him mostly in fives and tens. The police then

brought the witness from the liquor store to the location

to see if he could identify Hill as the robber. The witness

identified Hill’s shoes and jeans as consistent with the

clothing that the robber was wearing.

II. PROCEDURAL HISTORY

At a trial by jury, Hill was convicted of robbery,

criminal confinement and carrying a handgun without a

license in May of 2001. See Hill, 773 N.E.2d at 340.

Because he was found to be a habitual offender, Hill was

sentenced to life without parole. /d. Hill filed a direct

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Appendix B

appeal of his conviction, arguing that: (1) his right to a

speedy trial was violated; (2) the trial court violated his

right to self representation when it granted the state a

continuance over his objection; (3) the combined effect

of the trial court’s rulings denied him complete and

freely administered justice under the Indiana

Constitution; and (4) his convictions were not supported

by sufficient evidence. (Resp.Ex.D.) The Indiana Court

of Appeals affirmed Hill’s conviction on direct appeal.

See Hill, 773 N.E.2d at 339. As the opinion issued by

the court of appeals did not address certain speedy trial

issues raised in Hill’s brief, Hill filed a petition for

rehearing. The court of appeals granted the petition,

but ultimately affirmed Hill’s conviction. See Hill uv. State,

777 N.E.2d 795, 799 (Ind.Ct.App.2002).

Hill then filed a petition to transfer to the Indiana

Supreme Court. In his petition, Hill first argued that

the Indiana Court of Appeals erroneously determined

that Hill waived any speedy trial objections when he did

not renew his objection and move for discharge after

the trial court specifically stated that it was granting a

continuance over his objection. (Resp. Ex. H at 5.) Hill

further argued that the court of appeals erred in holding

that Hill’s speedy trial and self-representation rights

were not prejudiced when the trial cort erroneously

continued his trial. (/d. at 7.) Hill also included a catch-

all paragraph, attempting to preserve his other

arguments raised in his direct appeal to the Indiana

Court of Appeals. (/d. at 9.) The petition to transfer was

denied. See Hill v. State, 792 N.E.2d 35 (Ind.2003).

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Appendix B

Hill then filed a petition for post conviction relief

(PCR), alleging ineffective assistance of both trial and

appellate counsel. (Resp. Ex. J at 14, 30, 34.) He also

continued to argue that his conviction was not supported

by sufficient evidence as well as several other claims not

raised on direct appeal. (/d. at 34-75 .) The Indiana Court

of Appeals affirmed the post conviction court’s finding

that Hill had not demonstrated that either of his counsel

was ineffective and held that he had waived the right to

raise the freestanding claims. (Hill v. State, No. 49A02-

0401-PC-82 (Ind.Ct.App. Aug. 30, 2004), Resp. Ex. L.)

Hill filed a petition to transfer to the Indiana Supreme

Court in September 2004, alleging that the Indiana

Court of Appeals erroneously concluded on direct appeal

that his counsel had waived Hill’s right to a speedy trial.

(Resp.Ex.M.) In his amended petition to transfer to the

Indiana Supreme Court in October 2004, Hill alleged

that the state failed to produce sufficient evidence to

support his Class A felony conviction and that his

appellate counsel was ineffective for failing to present

these evidentiary issues on direct appeal. (Resp.Ex. N.)

These petitions to transfer were also denied. See Hill v.

State, 822 N.E.2d 980 (Ind.2004); (Pet.’s Am. Traverse,

Ex. D [Doc. 38].)

In the Petition before this Court, Hill’s claims are

(1) that the state failed to produce sufficient evidence

of every element of robbery as a Class A felony; (2) that

the Indiana Court of Appeals erred when it held that

Hill could not personally object to vacating the February

12, 2001 trial date because he was represented by

counsel; (8) that the Indiana Court of Appeals

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Appendix B

erroneously determined that trial counsel was not

ineffective; (4) that the Indiana Court of Appeals

erroneously determined that appellate counsel was not

ineffective; (5) that the Indiana Court of Appeals

erroneously determined that Hill waived any speedy

trial objections to postponement of the trial date during

the March 16, 2001 pretrial conference; and (6) that the

Indiana Court of Appeals erroneously determined that

the trial court’s postponement of the trial date during

the March 16, 2001 pretrial conference did not unduly

interfere with Hill’s Sixth Amendment right to self

representation.

III. DISCUSSION

A. Petitioner’s first, second and fifth claims are

barred by procedural default.

“The procedural default doctrine . . . normally will

preclude a federal court from reaching the merits of a

habeas claim when either (1) that claim was presented

to the state courts and the state-court ruling against

the petitioner rests on adequate and independent state-

law procedural grounds, or (2) the claim was not

presented to the state courts and it is clear that those

courts would now hold the claim procedurally barred.”

Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.2004). The

first type of procedural default prevents a federal court

from “review[ing] a question of federal law if it

determines that the state decision rests on a state

procedural ground that is independent of the federal

question and adequate to support the judgment.”

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Appendix B

Page v. Frank, 343 F.3d 901, 905 (7th Cir.2003). Or, in

other words, “the independent and adequate state

ground doctrine bars federal habeas when a state court

has declined to address a prisoner’s federal claims

because the prisoner has failed to meet a state

procedural requirement.” /d. (citations and alterations

omitted).

For this doctrine to apply, the last state court ruling

on the claim must clearly and plainly state that the

judgment rests on a state procedural bar. See Harris v.

Reed, 489 U.S. 255, 260-61 (1989). Furthermore, the

procedural rule must be applied in a “ ‘consistent and

principled way.’ ” Page, 343 F.3d at 908-09 (citation

omitted). Essentially, the state procedural rule must be

firmly established and regularly followed. /d. at 909. A

state decision that rests on a rule applied infrequently,

unexpectedly, or inconsistently may be inadequate

grounds for procedural default, as it suggests that the

state is discriminating against the federal right asserted.

Id. (citation omitted).

The procedural default doctrine also precludes

federal courts from reaching the merits of a habeas

petition if the petitioner did not fairly present his federal

claims to the appropriate state courts, and those state

courts would now hold the claims procedurally barred.

Perruquet, 390 F.3d at 514. To fairly present his claims

to the state court, the petitioner must articulate both

the operative facts and the controlling legal principles

on which his federal claim is based. See id. at 519. These

operative facts and law must appear in the text of the

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Appendix B

petition and accompanying briefs, as the state court is

not required to look to lower court opinions to find the

federal nature of the claim. Baldwin v. Reese, 541 U.S.

27, 32 (2004); Perruquet, 390 F.3d at 521.

This doctrine “is designed to give the state courts a

full and fair opportunity to resolve federal constitutional

claims before those claims are presented to the federal

courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845

(1999). This means that the petitioner must “invok[e]

one complete round of the State’s established appellate

review process.” /d. This does not mean that the

petitioner must necessarily file a state habeas petition

after completing his one full round on direct appeal in

the state courts. Castzlle v. Peoples, 489 U.S. 346, 349-

50 (1989) (noting that “once the state courts have ruled

upon a claim, it is not necessary for a petitioner ‘to ask

the state for collateral relief, based upon the same

evidence and issues already decided by direct review’ ”)

(citation omitted).

Factors to consider in determining if the operative

facts and law of a federal claim were fairly presented

include: “ ‘(1) whether the petitioner relied on federal

cases that engage in constitutional analysis; (2) whether

the petitioner relied on state cases which apply a

constitutional analysis to similar facts; (3) whether the

petitioner framed the claims in terms so particular as

to call to mind a specific constitutional right; and

(4) whether the petitioner alleged a pattern of facts that

is well within the mainstream of constitutional

litigation.’” Perruquet, 390 F.3d at 519-20 (citations

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Appendix B

omitted). The petitioner is not required to demonstrate

that the state appellate court actually addressed the

federal claim; he need only show that the issue was fairly

presented in the appropriate petition and briefs.

See Dye v. Hofbauer, 126 S.Ct. 5, 6-7 (2005).

If a claim has been procedurally defaulted in either

way, a federal court is barred from granting relief on a

habeas claim “unless the petitioner demonstrates cause

for the default and prejudice resulting therefrom, or

alternatively, he convinces the court that a miscarriage

of justice would result if his claim were not entertained

on the merits.” Perruquet, 390 F.3d at 514 (emphasis

and citations omitted). Cause is generally “established

by showing that some type of external impediment

prevented the petitioner from presenting his federal

claim to the state courts.” Lewis v. Sternes, 390 F.3d

1019, 1026 (7th Cir.2004). Prejudice is generally

“established by showing that the violation of the

petitioner’s federal rights ‘worked to his actual and

substantial disadvantage, infecting his entire trial with

error of constitutional dimensions.’ ” /d. (quoting United

States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis

omitted). To show that a denial of a habeas claim will

result in a miscarriage of justice, the petitioner must

establish “that he is actually innocent of the offense for

which he was convicted, 7.e., that no reasonable juror

would have found him guilty of the crime but for the

error(s) he attributes to the state court.” /d. (citing

Schlup v. Delo, 513 U.S. 298, 327-29 (1995)).

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Appendix B

1. Petitioner’s first claim is barred because the

Petitioner did not fairly present this claim

to the state court and because the state court

rulings rested on independent and adequate

state procedural grounds.

Hill’s first claim asserts that the state failed to prove

every element of robbery as a Class A felony. Hill first

raised the sufficiency of the evidence in his direct appeal

wherein the Indiana Court of Appeals characterized it

as follows: “The main thrust of Hill’s sufficietcy

argument is that the evidence must be insufficient to

support his convictions because no one ever positively

identified him as the person who was at the liquor store

on May 9, 2000.” Hill, 773 N.E.2d at 347. The Court

then held that, notwithstanding the lack of eye-witness

testimony, there was an abundance of circumstantial

evidence upon which the jury could have convicted the

defendant. See id. at 347-48. His conviction was therefore

affirmed. See id. at 348. On his direct appeal to the

Indiana Supreme Court via a petition to transfer, Hill

made only a passing reference to his sufficiency of

evidence argument. He merely stated: “Mr. Hill also

raised questions regarding the sufficiency of the

evidence.” (Resp. Ex. H at 9.) Because Hill did not

adequately present this issue to the Indiana Supreme

Court, Hill has procedurally defaulted on this aspect of

his sufficiency of evidence argument and the Court

therefore will not entertain this claim. See Perruquet,

390 F.3d at 514. He has also failed to show cause for the

default and any resulting prejudice, or a miscarriage of

justice. Jd. (citations omitted).

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Appendix B

In his appeal from the denial of his post-conviction

relief petition, Hill also raised the sufficiency of the

evidence argument but with a new twist and only in the

most general of ways. In a 75-page petition, the

sufficiency argument is raised on page 74 where Hill

stated simply that “the state did not present evidence

of injury.” (See Resp. Ex. J at 74.') This was a different

argument than the one raised on his direct appeal

wherein Hill argued that the evidence was insufficient

because there was no eye-witness testimony. In essence,

Hill was now claiming that the State failed to prove that

the victim had been “injured” (he was, in fact, shot), and

therefore the evidence was insufficient for this reason.

The Indiana Court of Appeals rejected this sufficiency

of evidence argument, along with all the free-standing

claims, and affirmed Hill’s conviction, holding that Hill

had waived the right to assert any issues that were

available, but not raised, on direct appeal. (See Resp.

Ex. L at 12-13.) Hill presented the sufficiency of evidence

claim to the Indiana Supreme Court in his October 2004

amended petition to transfer, which was denied.”

1. In addition to arguing that the circumstantial evidence

was not sufficient to prove that the robbery victim suffered a

serious bodily injury, Hill raised multiple other free-standing

issues not raised in his direct appeal. (See Resp. Ex. J at 34-75.)

2. According to Pet.’s Amended Traverse [Doc. 38], Ex. D,

the Indiana Supreme Court did not grant Hill’s motion to

amend his petition to transfer to include the sufficiency of

evidence argument. Nevertheless, as a precaution, this Court

shall still review this claim as if the issue was properly

presented to the Indiana Supreme Court.

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Appendix B

As the last state court to review Hill’s sufficiency

claim, the decision of the Indiana Court of Appeals was

based solely on state post-conviction rules of procedure.

As required by Harris, the court of appeals clearly

expressed that its holding rested on these independent

state procedural grounds. See Harris, 489 U.S. at 260-

61. It is also plain that the Indiana Court of Appeals

applied this rule in a principled way because the holding

is consistent with established Indiana state law. See Ind.

PC. 1 § 1(b) (“This remedy [of post-conviction relief] is

not a substitute for a direct appeal from the conviction.

... ); Corcoran v. State, 820 N.E .2d 655, 663 (Ind.2005)

(stating that contentions that constitute free-standing

claims of error are not generally available for post-

conviction review), aff’d on reh’g, 827 N.E.2d 542

(Ind.2005); Tr:mberlake v. State, 753 N.E.2d 591, 597

(Ind.2001) (“If an issue was known and available, but

not raised on direct appeal, it is waived.”) (citation

omitted).

Because the Indiana Court of Appeals’ ruling on this

claim was based on the consistent application of clearly

expressed state procedural law, it is barred by

procedural default unless Hill can demonstrate cause

and resulting prejudice, or that denial of the claim will

result in a miscarriage of justice. See Perruquet, 390

F.3d at 614. Hill has not provided “some type of external

impediment” as a reason for the state procedural

default, nor has he made any claim that the violation of

his federal rights “worked to his actual and substantial

disadvantage, infecting his entire trial with error of

constitutional dimensions.” Lewis, 390 F.3d at 1026

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Appendix B

(emphasis and citation omitted). Therefore, Hill has not

shown cause for the procedural default or any resulting

prejudice. Moreover, there was no fundamental

miscarriage of justice in this case. /d. (citation omitted).

Given the overwhelming evidence of Hill’s guilt—his

fingerprints on the window of the getaway car, the gun

used in the robbery found in that same car, the fact that

his clothes matched the robber’s, and all the other

circumstantial evidence—a reasonable juror would have

found him guilty despite the errors Hill attributes to

the state court. Accordingty, Hill’s first claim is barred

by procedural default.*

2. Petitioner’s second claim is barred because

Petitioner did not fairly present this claim

to the state court.

Hill’s second claim asserts that the appellate court

erred when it held that because Hill was represented

by counsel at the time, he could not personally object

when the trial court vacated the February 12, 2001 trial

date. Hill properly presented this claim to the Indiana

Court of Appeals, where his claim was denied. See Hill,

773 N.E.2d at 342. Hill filed a petition to transfer to the

Indiana Supreme Court on December 4, 2002, but he

made only a general reference to this claim, stating that

“Mr. Hill preserves his other arguments raised in his

direct appeal.” (Resp. Ex. H at 9 .) This vague language

was not sufficient to alert the Indiana Supreme Court

3. Even if this Court were to reach the merits on Hill’s

first claim, there is plainly sufficient evidence to uphold the

guilty verdict.

2la

Appendix B

to any sort of federal claim. Although the claim was

addressed in the court of appeals opinion, the Indiana

Supreme Court was not required to look any further

than Hill’s petition and accompanying briefs. See

Baldwin, 541 U.S. at 32; Perruquet, 390 F.3d at 521.

Therefore, the Court finds that Hill’s second claim was

not fairly presented to the state courts, and that Hill

therefore procedurally defaulted on his second claim.

Because Hill has not shown any cause for the default,

resulting prejudice, or a miscarriage of justice, this claim

is barred from the Court’s review.

3. Petitioner’s fifth claim is barred because the

state court rulings rested on independent and

adequate state procedural grounds.

Hill’s fifth claim asserts that the Indiana Court of

Appeals erred when it held that Hill waived any speedy

trial objections when he failed to renew his objection to

postponement of the trial date during the March 16,

2001 pretrial conference. Essentially, he argues that the

court of appeals placed form over substance, as the trial

court knew Hill objected to the continuance, and would

not have required a licensed attorney to renew his

objection. Hill properly presented this issue on direct

appeal, and in his December 4, 2002 petition to transfer.

(See Resp. Ex. D at 11; Resp. Ex. H at 5.) The Indiana

Court of Appeals rejected this claim on rehearing, and

the Indiana Supreme Court denied transfer. Hill, 777

N.E.2d at 798-99; Hill, 792 N.E.2d at 35.

22a

Appendix B

The decision of the Indiana Court of Appeals was

grounded solely on Indiana Criminal Procedure Rule

4—-an independent and adequate state procedural

ground. The court concluded that pursuant to Criminal

Rule 4, if a trial is postponed, the defendant waives any

speedy trial objections unless he objects and moves for

discharge. Hill, 777 N.E.2d at 798-99. Since Hill did not

object after the trial was postponed, the court reasoned

that he waived any speedy trial objections. Jd. at 799.

This holding is consistent with Indiana Criminal

Procedure Rule 4 jurisprudence. See Vermillion v. State,

719 N.E.2d 1201, 1204 (Ind.1999) (holding that under

Criminal Rule 4, if a defendant fails to timely object toa

new trial date, he acquiesces to the delay); Sweeney w..

State, 704 N.E.2d 86, 102 (Ind.1998) (holding that once

a trial is set beyond the limits provided in Criminal Rule

4, the defendant must timely object, or he waives his

right to a speedy trial) (citation omitted); Bell v. State,

622 N.E.2d 450, 454 (Ind.1993) (holding that a motion

for discharge filed prematurely is properly denied

pursuant to Criminal Rule 4), overruled on other

grounds by Jaramillo v. State, 823 N.E.2d 1187, 1190

(Ind.2005).

Because the Indiana Court of Appeals’ ruling on

Hill’s fifth claim was based on the consistent application

of clearly expressed state procedural law, these claims

are barred by procedural default unless Hill can

demonstrate cause and resulting prejudice, or that

denial of these claims will result in a miscarriage of

justice. See Perruquet, 390 F.3d at 514. Hill has not

provided “some type of external impediment” as a reason

23a

Appendix B

for the state procedural default, nor has he made any

claim that the violation of his federal rights “worked to

his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.”

Lewis, 390 F.3d at 1026 (emphasis and citation omitted).

Therefore, Hill has not shown cause for this procedural

default or any resulting prejudice. As stated previously,

there was also no fundamental miscarriage of justice in

this case. Accordingly, Hill’s fifth claim is barred by

procedural default.

B. Hill’s Third and Fourth Claims Were Properly

Decided.

Hill’s third and fourth claims—ineffective assistance

of trial and appellate counsel—were correctly decided

by the Indiana Court of Appeals. As provided by the

Anti-Terrorism and Effective Death Penalty Act of 1996

(“AE DPA”), a federal court may not grant a petition for

habeas corpus based on any claim adjudicated in state

court proceedings “unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts in

light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). “ ‘Contrary to’ means

that a federal court may grant the writ only if the state

court arrives at a conclusion opposite that reached by

the Supreme Court on a question of law, or if the state

court decides a case differently than the Supreme Court

24a

Appendix B

on a set of materially indistinguishable facts.” Woods v.

McBride, 430 F.3d 813, 816 (7th Cir.2005) (citing

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

In Strickland v. Washington, the Supreme Court

determined that a party claiming ineffective assistance

of counsel must demonstrate that the alleged acts or

omissions of counsel were not the product of “reasonable

professional judgment.” 466 U.S. 668, 690 (1984). This

standard is deferential; counsel is presumed to have

acted in a reasonable and professional manner. See 7d.

In this case, Hill argues that the trial counsel failed to

object to the postponement of the February trial date,

improperly withdrew Hill’s alibi defense, and requested

an extension of the omnibus date that allowed the state

time to file additional charges against Hill. He claims

that these actions constituted ineffective assistance of

counsel. To decide this issue, the Indiana Court of

Appeals applied the familiar two-part test of Strickland.

As the court noted, “petitioner must show both deficient

performance and resulting prejudice.” (Resp. Ex. L at

7-8, citing Strickland.) The court explained that

“[djeficient performance is that which falls below an

objective standard of reasonableness[,]” and that

“[p]rejudice exists when a defendant shows there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different. (/d. at 8.) The Indiana Court

of Appeals then correctly noted that the reasonable

strategic decisions of trial counsel cannot form the basis

of an ineffective assistance of counsel claim. (/d. (citing

Azania v. State, 738 N.E.2d 248, 251 (Ind.2000)).)

25a

Appendix B

Finally, the court noted that to prove ineffective

assistance of counsel because of the failure to object, “a

defendant must prove that an objection would have been

sustained if made and that he was prejudiced by the

failure.” (/d. (citing Wrinkles v. State, 749 N.E.2d 1179,

1192 (Ind.2001)).)

Using these standards, the Indiana appeals court

held that Hill did not show that any of the claims

constituted ineffective assistance of counsel. First, Hill

failed to demonstrate that had his trial counsel objected

to the delay in the trial, such an objection would have

been sustained. In fact, the appeals court specifically

stated that such an objection would have been

overruled. (See Resp. Ex. L at 8.) The court reasoned

that the delay in the trial was granted so Hill’s own alibi

witness could be located and deposed. (/d.) Thus, he was

not prejudiced by the delay. (/d. at 9.) Accordingly, the

Indiana Court of Appeals determined that Hill’s trial

counsel was not ineffective regarding this issue. (/d.)

Second, Hill later decided that he would rather have a

speedy trial than have more delay in tracking down his

alibi witness. Accordingly, his attorney withdrew the alibi

defense. The court found that Hill cannot then claim

that his trial counsel was ineffective on that basis. (/d.)

Finally, Hill’s trial counsel requested an extension of the

omnibus date as a strategic decision to investigate the

possibility of an alibi defense. The court noted “that even

though the extended omnibus date permitted the State

to file additional charges, Hill has failed to show that

the State would not have otherwise been able to file the

additional charges.” (/d.) Therefore, the court found

26a

Appendix B

that Hill did not prove deficient performance or resulting

prejudice on that claim. (/d. at 9-10.)

Based on the standard presented in Strickland, the

Indiana Court of Appeals held that Hill received effective

assistance of counsel on all his claims. This decision was

not contrary to, or an unreasonable application of,

federal law. The Indiana Court of Appeals gave the

appropriate level of deference to the decisions made by

Hill’s trial counsel. Therefore, the claim of ineffective

assistance of trial counsel does not present an

appropriate grounds for habeas relief.

The same goes for Hill’s fourth claim—ineffective

assistance of appellate counsel.‘ Even if he fairly

presented the issue to the Indiana Supreme Court in

his petition to transfer, the Indiana Court of Appeals

4. The State has argued that Hill’s claim of ineffective

assistance of appellate counsel is procedurally defaulted

because he did not fairly present the issue to the Indiana

Supreme Court in his petition to transfer from the denial of his

post-conviction relief. While it is true that Hill mentioned

ineffective assistance of appellate counsel in his petition to

transfer, he did not present sufficient facts and law to support

the claim. The petition to transfer did not state the claim in any

uniquely constitutional terms, or even mention the Sixth

Amendment. Nor did Hill cite any federal or state cases.

See Pierson v. O’Leary, 959 F-2d 1385, 1392-93 (7th Cir.1992).

Nevertheless, because Hill does not prevail on his ineffective

assistance of counsel claim, the Court need not decide the

procedural! default issue. See Davis v. Vannatta, 438 F.3d 707,

711 (7th Cir.2006) (“We need not reach the issue of procedural

default, however, since [petitioner’s] claim fails on the merits.”).

27a

Appendix B

correctly decided the matter anyway. To determine

whether appellate counsel’s failure to raise certain

issues was a product of “reasonable professional

judgment,” the Indiana Court of Appeals applied a two-

part test, examining (1) whether any unraised issues

were apparent from the face of the record; and

(2) whether the unraised issues were “clearly stronger”

than the raised issues. (Resp. Ex. L at 10-11 (citing

Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind.2001)

and Gray v. Greer, 800 F-:2d 644, 646 (7th Cir.1986)).)

Using this test, the court found Hill failed to show

that any of his alleged claims of free-standing error were

“clearly stronger” than the claims actually raised by Hill’s

appellate counsel. Accordingly, the Indiana Court of

Appeals determined that Hill’s appellate counsel was

not ineffective, as she exercised reasonable professional

judgment in her decision not to present any of Hill’s

freestanding error claims. (See Resp. Ex. L at 12.) The

court also held that the appellate counsel “ably raised

and presented the speedy trial issue[ ]” and that Hill

therefore failed to show that his counsel was ineffective

on that basis. (See zd. at 11.)

Based on the standard presented in Strickland, the

Indiana Court of Appeals’ decision was not contrary to,

or an unreasonable application of, federal law. The court

acknowledged and applied the “reasonable professional

judgment” standard set by the United States Supreme

Court, and gave the appropriate level of deference to

the decisions made by Hill’s appellate counsel. Therefore,

Hiil’s fourth claim also does not present an appropriate

ground for habeas relief.

28a

Appendix B

C. Petitioner’s sixth claim is rejected because the

ruling of the Indiana Court of Appeals was not

an unreasonable application of clearly

established federal law.

Hill’s sixth claim alleges that the trial court’s

erroneous postponement of Hill’s trial date at the March

16, 2001 pretrial conference interfered with Hill’s trial

strategy and thereby violated his Sixth Amendment

right to self representation. The trial was postponed

because a key state witness had suffered a heart attack.

See Hill, 773 N.E.2d at 348. Hill objected to the delay,

and agreed to stipulate to the testimony of the absent

witness pursuant to Indiana Code § 35-36-7-2. See id.

at 343-44. The trial court erroneously rejected Hill’s

offer to stipulate and granted the state’s motion for

continuance. See id. at 344-45. Essentially, Hill now claim

that this continuance interfered with his strategy to

proceed to trial without the state witness. Hiil properly

presented this claim to the state courts on direct appeal

and in his December 4, 2002 petition to transfer.

(See Resp. Ex. D at 23; Resp. Ex. H at 7.) The Indiana

Court of Appeals ultimately rejected his claim and the

Indiana Supreme Court denied transfer. See Hill, 773

N.E.2d at 345-46; Hill, 792 N.E.2d 35.

The Indiana Court of Appeals’ ruling on this issue

rested on federal jurisprudence- See Hill, 773 N.E.2d

at 345-46. As stated previously, the AEDPA prohibits

the grant of habeas relief unless state court adjudication

of the federal claim “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of,

29a

Appendix B

clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in

a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

2254(d).

The Supreme Court has established two core

components to the right to self representation: the right

to preserve actual control over the case presented to

the jury, and the right to have the jury perceive and

understand that the defendant is representing himself.

McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). The right

to control the case presented to the jury includes the

right “to control the organization and content of his own

defense, to make motions, to argue points of law, to

participate in voir dire, to question witnesses, and to

address the court and the jury at appropriate points in

the trial.” /d. at 174. However, a pro se defendant is not

entitled to absolute control, and “must generally accept

any unsolicited help or hindrance that may come from

the judge who chooses to call and question witnesses,

[or] from the prosecutor who faithfully exercises his duty

to present evidence favorable to the defense. .. .” Jd. at

177, % 7.

In evaluating Hill’s sixth claim, the Indiana Court

of Appeals correctly applied the analysis in McKaskle

to determine that Hill was not deprived of his right to

represent himself. While the court recognized that Hill’s

decision to proceed without the state witness could be

considered a tactical decision, it was not central to Hill’s

30a

Appendix B

defense. Hill, 773 N.E.2d at 345. This Court agrees. Hill

was still allowed to question witnesses, argue points of

law, and to address the court and jury. /d. He also was

allowed to place his objection to the continuance on the

record. /d. at 345-46. Yet as noted in McKaskle, Hill was

also obligated to accept the help of a judge who felt that

the presence of the witness was important. The fact that

the trial court overruled his objection was not in itself a

violation of Hill’s right to represent himself. The decision

of the Indiana Court of Appeals was not an unreasonable

application of federal law, nor was the decision

unreasonable in light of the evidence presented.

Therefore, Hill’s sixth claim is rejected as an

appropriate ground for habeas relief.

3la

Appendix B

IV. CONCLUSION

For the foregoing reasons, the Petition for Writ of

Habeas Corpus is DENIED. The Motions for

Appointment of Counsel [Doc. 18 and Doc. 45] are

DENIED AS MOOT. The Motion to Order Respondent

to File State Court Record [Doc. 19] is DENIED AS

MOOT. The Motion for Partial Summary Judgment

(Doc. 20] is DENIED. The Motion to Amend Judgment

[Doc. 22] is DENIED AS MOOT. The Motion Objecting

to Magistrate Relieving Respondent from Filing State

Court Record [Doc. 24} is DENIED AS MOOT. The

Motion to Order Clerk to Provide Petitioner With File

Marked Copies of Pleadings [Doc. 25] is DENIED AS

MOOT. The Motion Requesting the Court to Provide

Petitioner with File Marked Copies of Pleadings [Doc.

36] is DENIED AS MOOT. The Amended Motion for

Partial Summary Judgment [Doc. 39] is DENIED. The

Motion to Compel Respondent to Produce Full and

Complete State Court Records [Doc. 42] is DENIED

AS MOOT.

5O ORDERED.

ENTERED: March 30, 2006

s/ Philip P Simon

PHILIP F SIMON, JUDGE

UNITED STATES DISTRICT COURT

32a

APPENDIX C — OPINION OF THE COURT OF

APPEALS OF INDIANA DATED AUGUST 16, 2002

IN THE

COURT OF APPEALS OF INDIANA

No. 49A02-0107-CR-440

ASHER HILL,

Appellant-Defendant,

v.

STATE OF INDIANA,

Appellee-Plaintiff.

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Grant W. Hawkins, Judge

Cause No. 49G05-0005-C F-76761

August 16, 2002

OPINION

33a

Appendix C

SHARPNACK, Judge.

Asher Hill appeals his convictions for carrying a

handgun without a license, a class A misdemeanor,’

criminal confinement, a class B felony,” and robbery, a

class A felony.’ Hill raises four issues, which we restate

as:

I. Whether Hill’s right to a speedy trial

under Ind. Criminal Rule 4(B) was

violated;

II. Whether the trial court’s refusal to allow

Hill to proceed to trial in the absence of

witnesses denied him his Sixth

Amendment right to represent himself;

III. Whether the trial court’s actions, when

combined, denied Hill of his right to free

and complete justice under Article I,

section 12 of the Indiana Constitution;

and

IV. Whether the evidence is sufficient to

sustain Hill’s convictions.

We affirm.

1. Ind. Code § 35-47-2-1.

2. Ind. Code § 35-42-3-3.

3. Ind. Code § 35-42-5-1.

34a

Appendix C

The facts most favorable to the convictions follow.’

On May 9, 2000, Gary Barr was working as a cashier at

a liquor store on south Sherman Drive in Marion County.

Mike Wagner was in the store talking to Barr at the

counter. An African-American male (“the robber”), who

was five feet, eleven inches tall and was wearing jean

shorts, white tube socks, tennis shoes, and a long sleeve,

hooded, white shirt or jacket, entered the store.

Immediately upon entering the store, the robber shot

Barr in the abdomen and grabbed Wagner from behind.

The robber walked Wagner around to the back of the

counter and insisted that Wagner open the cash

register. However, Wagner did not know how to open

the register because he did not work at the liquor store.

After trying unsuccessfully to open the register, Wagner

unplugged it and gave it to the robber. The robber

ordered Wagner to get on the floor, a location from which

Wagner was able to observe the robber’s legs and

clothing. The robber threw the cash register to the

ground and began kicking it until it finally opened. When

the robber left the store, Wagner telephoned the police.

The police dispatch report indicated that Wagner’s call

came in at 9:43 p.m.

At 9:45 p.m. that same night, Earnest Rich was

driving on south Sherman Drive, when a mid-sized gray

4. The State also charged Hill with crimes that were

committed in the same liquor store on May 1, 2000. Hill was

tried on those charges simultaneously with the convictions

appealed herein. However, as Hill was not convicted of the

charges related to the May Ist crimes, we have chosen to not

provide the facts and procedural history relevant thereto.

3Sa

Appendix C

Mazda came speeding up behind him with its headlights

on bright. Rich saw the car leave the road and run into

trees on Pleasant Run Parkway. The intersection of

Sherman and Pleasant Run Parkway is approximately

one-half mile north of the liquor store on Sherman. Rich

circled around to the accident scene and found that

there was no one in the car. Rich telephoned the police.

Before the police dispatch for the accident occurred,

Indianapolis Parks Department Ranger Jerald Knuckles

noticed the Mazda against the trees as he was driving

by on patrol. When Ranger Knuckles arrived, he noticed

that the headlights and windshield wipers were on and

that the engine was running. Ranger Knuckles opened

the car door and saw a gun on the passenger seat.

Ranger Knuckles removed the bullets from the gun and

placed the gun and bullets in his patrol car until the

police arrived.

The police arrived at the accident scene with Rader,

a dog trained to track scents. Rader tracked a scent

from the car to Pleasant Run Creek. Because the creek

was high from recent rains, the officer took Rader

around to the other side of the creek, where Rader was

able to find the scent again. Rader tracked the scent

from the creek to Pleasant Run Drive near Gale Street.

Also around 9:45 that same night, Hill, who is African

American, knocked on the door at the Sterlings’ house,

which is on Gale Street near Pleasant Run Drive. When

Mrs. Sterling saw Hill, he was “out of breath, and sort

of frightened” and was wearing knee-length jean pants,

36a

Appendix C

tennis shoes and white socks. Transcript at 206. Hill told

her that he had been carjacked and needed to use their

phone. Because Hill had trouble using her phone,

Sterling made 2 phone call for Hill. Sterling thought it

was unusual that Hill was not calling the police to report

the carjacking, so she went to her bedroom and called

9-1-1. At some point, Hill took off his shoes and socks so

that he could wring the water out of his socks. The police

arrived at the Sterlings’ house within minutes of

Mrs. Sterling’s call.

The police brought Wagner to the Sterlings’ house

to see if Wagner recognized Hill as the man who

committed the robbery and shooting at the liquor store.

Wagner reported that Hill’s shoes and shorts appeared

to be the same as those worn by the robber. In addition,

Hil! had $392.23, mostly in five-dollar and ten-dollar bills.

Police found money in, and on the ground around,

the Mazda. A beige colored coat was found on the bank

of the creek. A crime technician found Hill’s fingerprint

on the driver’s side window of the Mazda. On April 9,

2000, the police had conducted a traffic stop of the

Mazda, at which time Hill was driving the car, which

belonged to his ex-girlfriend. Ballistics tests indicated

that the gun found in the Mazda was the gun used to

shoot Barr.

The State charged Hill with attempted murder as a

class A felony,® robbery as a class A felony, criminal

5. Ind. Code §§ 35-41-5-1, 35-42-1-1.

37a

Appendix C

confinement as a class B felony, unlawful possession of a

firearm by a serious violent felon as a class B feloay,®

carrying a handgun without a license as a class A

misdemeanor, and carrying a handgun without a license

as a class C felony.’ The State also filed informations

alleging that Hill was an habitual offender subject to

sentence enhancement pursuant to Ind.Code § 35-50-

2-8 and that Hill was an habitual offender subject to a

sentence of life imprisonment without parole pursuant

to Ind.Code § 35-50-2-8.5.

After delays that will be discussed in more detzil in

subsequent portions of this opinion, a jury tried Hill.

The jury found Hill guilty of robbery as a class A felony,

criminal confinement as a class B felony, and carrying a

handgun without a license as a class A misdemeanor.

The jury found that the State had proved that Hill was

an habitual offender subject to either an enhancement

of years or an enhancement to life without parole. The

trial court sentenced Hill to one year for carrying a

handgun without a license, which was to be served

concurrent with a ten-year sentence for criminal

confinement. The trial court ordered that the

confinement sentence be served consecutive to a thirty-

year sentence for robbery, which the trial court

enhanced to life imprisonment without parole?

6. Ind. Code § 35-47-4-5.

7. Ind. Code § 35-47-2-1.

8. Ind. Appellate Rule 4(A)(1)(a) gives the Indiana

Supreme Court exclusive jurisdiction over “Criminal Appeals

(Cont’d)

38a

Appendix C

I.

The first issue is whether Hill’s right to a speedy

trial under Ind. Criminal Rule 4(B) was violated. There

are no disputed facts regarding this issue; rather, the

dispute at issue is whether the delays that occurred are

chargeable to Hill or the State. We review this matter

de novo. See Vaughan v. State, 470 N.E.2d 374, 377

(Ind.Ct.App.1984) (implicitly reviewing an Ind. Criminal

Rule 4(B) question about which party was responsible

for a delay under a de novo standard), reh’g denied,

trans. denied.

Ind. Criminal Rule 4(B)(1) provides that if a

defendant requests a speedy trial, he shall either be

brought to trial within seventy days of his motion or be

discharged. See Underwood v. State, 722 N.E.2d 828,

831 (Ind.2000), reh’g denied. The rule also provides two

exceptions that may excuse the State from bringing the

defendant to trial within seventy days. Jd. The first

exception applies when the trial court’s calendar is too

congested to permit a trial for the defendant within

seventy days. /d.; Ind. Crim. Rule 4(B)(1). The second

exception applies when the delay in adjudicating the

(Cont’d)

in which a sentence of death or life imprisonment without parole

is imposed under Ind. Code § 35-50-2-9. . . .” Hill was sentenced

to life imprisonment without parole pursuant to an habitual

offender enhancement under Ind.Code § 35-50-2-8.5. Because

Ind. Appellate Rule 5(A) gives us jurisdiction over all appeals

not specifically assigned to the Indiana Supreme Court, we have

jurisdiction over Hill’s appeal. See Ind. Appellate Rule 5(A).

39a

Appendix C

defendant’s guilt is caused by the defendant.

Underwood, 722 N.E.2d at 831; Ind.Crim. Rule 4(B <1);

Ind. Crim. Rule 4(F). When we compute how many days

have passed since the defendant’s motion for a speedy

trial, we include Saturdays, Sundays, and legal holidays.

Ind. Crim. Rule 4(B)(2). However, if the seventieth day

falls on a Saturday, Sunday, or legal holiday, then the

defendant need not be discharged if the State brings

the defendant to trial on the first business day following

the seventieth day. /d.; see also Ind. Crim. Rule 4(E).

Hill requested a speedy trial on May 16, 2000. Hill

concedes that his trial was postponed a number of times

due to court congestion, and Hill does not question the

propriety of those continuances. Rather, Hill claims that

there are three continuances that are chargeable to the

State against the seventy day deadline. The first

continuance at issue is a twenty-eight day delay from

February 12, 2001 to March 12, 2001 that occurred

because the State needed more time to depose Hill’s

defense witnesses. The second continuance at issue is a

seven day delay from March 12, 2001 to March 19, 2001

that occurred because the State chose the later of two

trial dates offered by the trial court. The third

continuance at issue is a fifty-six day delay from March

19, 2001 until May 14, 2001 that occurred when the State

requested a continuance because Barr would be unable

to attend trial due to a health emergency.

The combined total days attributable to those three

continuances is ninety-one days. If, as Hill argues, all of

these days are chargeable to the State, then the State

40a

Appendix C

exceeded the seventy day deadline for bringing Hill to

trial, and Hill must be discharged. If, however, some of

these days are not chargeable to the State, then the

State may not have exceeded the seventy day deadline,

and Hill would not have to be discharged. We address

the continuances in chronological order.

The trial court granted the continuance from

February 12, 2001 until March 12, 2001 at a pre-trial

conference on February 7, 2001. The circumstances

surrounding that continuance were as follows. The State

had filed a motion to exclude evidence, specifically the

testimony of Hill’s alibi witnesses, because Hill’s

witnesses had failed to appear for their depositions.

At the conference, Hill was represented by counsel, who

had just been appointed to Hill’s case a couple of weeks

before the conference. The trial court announced that

it typically used a “three and out policy” for deciding

when a witness had missed too many scheduled

depositions and the trial court should grant a motion to

exclude. Transcript at 607-608. The trial court asked

Hill’s counsel to get the witnesses’ addresses from Hill

again, so that the prosecutor could try one more time

to subpoena the witnesses. In addition, the trial court

encouraged Hill to discuss with his witnesses the fact

that they needed to show up for the depositions.

The trial court announced that everyone would “come

back here in about a month and see if depositions are

still an issue.” Transcript at 611. Hill expressed to the

trial court his desire to go to trial as scheduled on

Monday, February 12th, with or without his witnesses.

Nevertheless, his trial was continued.

4la

Appendix C

A defendant’s right to the speedy trial that he

requested can be waived. Vermillion v. State, 719 N.E.2d

1201, 1204 (Ind.1999), reh’g denied. If a defendant fails

to object to a delay that results in a later trial date, then

the length of that delay extends the time limitations set

in Ind. Criminal Rule 4. Jd. Here, Hill’s counsel did not

object to the trial court sua sponte granting a

continuance of Hill’s trial so that the State could depose

Hill’s witnesses. Consequently, this twenty-eight day

delay may not be counted against the seventy day limit

that the State had to bring Hill to trial. See, e.g., id. at

1204-1205 (holding that a seven day delay caused by a

State’s motion for continuance was chargeable to the

defendant when the defendant did not object).

Nevertheless, Hill claims that he should not be

charged with this delay because, even though his

counsel did not object to the continuance, Hill personally

objected to the continuance and requested to go to trial

on Monday, February 12, 2001. Hill’s argument fails

because if a defendant has counsel, he speaks to the

court through his counsel. Underwood, 722 N.E.2d at

832. The court is not required to respond to the

defendant’s objections or motions. Jd. As our supreme

court has said: “To require the trial court to respond to

both Defendant and counsel would effectively create a

hybrid representation to which Defendant is not

entitled.” Jd. Because Hill was represented by counsel,

the trial court was not required to grant Hill’s request

to proceed with a speedy trial. See Broome v. State. 694

N.E.2d 280 (Ind.1998), trans. granted, 694 N.E.2d 280,

281 (Ind.1998) (summarily affirming the Court of Appeals

on this issue).

42a

Appendix C

Hill alleges that there are two other delays that are

chargeable to the State. However, we need not analyze

whether those delays are chargeable to the State or to

Hill because Hill’s claim fails regardless. The two

remaining delays were seven days and fifty-six days.

Their combined total is sixty-three days, which is seven

days short of the seventy-day limit provided by Ind.

Criminal Rule 4(B). Consequently, Hill cannot

demonstrate that the State failed to bring him to trial

within the time allotted pursuant to his request under

Ind. Criminal Rule 4(B). See, e.g., Vermillzon, 719 N.E.2d

at 1205 (holding that defendant’s right to a speedy trial

under Ind. Criminal Rule 4(C) had not been violated

because portions of the delay were attributable to the

defendant).

IT.

The second issue is whether the trial court’s refusal

to allow Hill to proceed to trial in the absence of

witnesses denied Hill his Sixth Amendment right to

represent himself. Whether the trial court’s actions

violated Hill’s constitutional right to self-representation

is a question 0° law that we review de novo. See generally

Sherwood v. State, 717 N.E.2d 131 (Ind.1999) (implicitly

undertaking a de novo review when determining whether

a defendant’s Sixth Amendment right to represent

himself was violated).

In Faretta, the Supreme Court held that a criminal

defendant has a Sixth Amendment right to conduct his

own defense if he “knowingly and intelligently forgoes

43a

Appendix C

his right to counsel” and he “is able and willing to abide

by rules of procedure and courtroom protocol.”

McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944,

948, 79 L.Ed.2d 122 (1984) (citing Faretta v. California,

422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)), reh’g

denied. When a defendant demonstrates that he is

competent to proceed pro se, he “must be allowed to

control the organization and content of his own defense,

to make motions, to argue points of law, to participate

in voir dire, to question witnesses, and to address the

court and the jury at appropriate points in the trial.”

Id. at 174, 104 S.Ct. at 949. According to the Supreme

Court, the policy underlying the right to appear pro se

is that we want “to affirm the dignity and autonomy of

the accused and to allow the presentation of what may,

at least occasionally, be the accused’s best possible

defense.” Jd. at 176-177, 104 S.Ct. at 950.

To determine whether a defendant’s Sixth

Amendment right to represent himself has been violated,

“the primary focus must be on whether the defendant

had a fair chance to present his case in his own way.”

Id. at 177, 104 S.Ct. at 950. In the context of whether

standby counsel had interfered with a defendant’s right

to present his case in his own way, the Supreme Court

explained:

the pro se defendant is entitled to preserve

actual control over the case he chooses to

present to the jury. This is the core of the

Faretta right. If standby counsel’s

participation over the defendant’s objection

44a

Appendix C

effectively allows counsel to make or

substantially interfere with any significant

tactical decision, or to control the questioning

of witnesses, or to speak instead of the

defendant on any matter of importance, the

Faretta right is eroded.

Id. at 178, 104 S.Ct. at 951.

Here, Hill claims that, on two separate occasions,

the trial court interfered with Hill’s right to represent

himself by prohibiting him from proceeding to trial in

the absence of witnesses. The first situation about which

Hill complains is when, during the pretrial hearing on

February 7, 2001, the trial court granted a continuance

to allow the prosecutor to depose Hill’s witnesses despite

Hill’s willingness to go to trial without those witnesses.

As we discussed earlier in this opinion, at the time when

the trial court granted that continuance, Hill was

represented by counsel. See supra Part I. The trial

court’s failure to grant Hill’s request to proceed to trial

without those witnesses could not have denied Hill his

right to represent himself when Hill was not

representing himself at that point in time. Consequently,

this allegation of error fails.

The second situation about which Hill complains

occurred during a pretrial conference held on March

16, 2001. By the time of this hearing, the trial court had

granted Hill’s motion to proceed pro se, and Hill was

representing himself. During the March 16th hearing,

the State requested a continuance pursuant to

45a

Appendix C

Ind. Code § 35-36-7-2 because one of its witnesses, Barr,

had been hospitalized after having a heart attack. The

trial court told Hill that he had the option of going to

trial on Monday as scheduled if Hill agreed to stipulate

that Barr would testify to thirty-three facts and if Hill

agreed that the jury could be told Barr’s stipulated

testimony. Hill decided that he wanted to go ahead with

the trial. Nevertheless, the trial court granted the

State’s request for a continuance.

Hill claims that the trial court erred when it granted

the State’s request for a continuance pursuant to

Ind. Code § 35-36-7-2. That statute provides:

(a) A prosecuting attorney may move to

postpone the trial of a criminal cause because

of the absence of a witness whose name is

endorsed on the indictment or information, if

he makes an official statement:

(1) containing the requirements of

subsections (b)(1) and (b)(2) of

section 1 of this chapter;

showing that the absence of the

witness has not been procured

by the act of the prosecuting

attorney;

stating the facts to which he

believes the witness will testify,

46a

Appendix C

and include a statement that he

believes these facts to be true;

and

(4) stating that the prosecuting

attorney is unable to prove the

facts specified in accordance

with subdivision (3) through the

use of any other witness whose

testimony can be as readily

procured.

Upon request of the defendant the court shall

order that the prosecuting attorney’s motion

and official statement be made in writing.

(b) The trial may not be postponed if:

(1) after a motion by _ the

prosecuting attorney because of

the absence of a witness, the

defendant admits that the

absent witness would testify to

the facts as alleged by the

prosecuting attorney in his

official statement in accordance

with subsection (a)(3); or

(2) after a motion by _ the

prosecuting attorney’ to

postpone because of the

absence of written’ or

47a

Appendix C

documentary evidence, the

defendant admits that the

written or documentary

evidence exists.

Ind. Code § 35-36-7-2. Hill claims that because he agreed

to stipulate to the facts to which Barr would testify,

Ind.Code § 35-36-7-2(b)(1) prohibited the trial court from

granting the continuance. The State argues that the

trial court had discretion regarding whether or not to

grant the continuance.

It is true that a trial court has discretion over

whether or not to grant a nonstatutory motion for

continuance. Maxey v. State, 730 N.E.2d 158, 160

(Ind.2000). Accordingly, even though the State’s motion

for continuance does not meet the statutory

requirements of Ind. Code § 35-36-7-2, the trial court

still has discretion to determine whether to grant a

continuance. See Baxter v. Stute, 727 N.E.2d 429,

432 n. 3 (Ind.2000) (quoting Bates v. State, 520 N.E.2d

129, 131 (Ind.Ct.App.1988), reh’g denied, trans. denied),

reh'g denied. This is true because Ind.Code § 35-36-7-2

“merely compels the granting of a continuance under

certain clearly delineated circumstances” without

restricting the trial court’s discretion to grant a

continuance in other circumstances. See Bates, 520

N.E.2d at 131. Nevertheless, if the factual situation

meets the “clearly delineated circumstances” outlined

in the statute, then the statute compels the trial court

to take the action required by the statute. See id. To

hold otherwise would be to nullify the statute, which is

contrary to the standard of review under which we

48a

Appendix C

interpret statutes. See, e.g., Livingston v. Fast Cash

USA, Inc., 753 N.E.2d 572, 575 (Ind.2001) (“We are

required to determine and effect the legislative intent

underlying the statute and to construe the statute ...

to prevent absurdity. ... In so doing, we should consider

the objects and purposes of the statute as well as the

effects and repercussions of such an interpretation.”).

Consequently, when Hill agreed that the State could

present Barr’s stipulated testimony pursuant to

Ind.Code § 35-36-7-2(b)(1), the trial court did not have

discretion to postpone the trial. Consequently, the trial

court erred when it granted the State’s request for a

continuance.?

9. Although Hill does not argue that this error by the trial

court, in and of itself, constituted reversible error, we feel

compelled to point out that reversible error did not occur. The

State requested the continuance because Barr, the liquor store

clerk who was shot during the May 9th robbery, was in the

hospital due to a health emergency. The Record indicates that

Barr was going to testify that Hill robbed the liquor store on

May lst. However, the Record also indicates that Barr did not

see the robber who shot him on May 9th. Therefore, Barr’s

presence at trial did not make Hill’s convictions for the May

9th crimes any more or less likely. In addition, despite Barr’s

presence at trial after it was postponed, Hill was acquitted of

the May Ist charges for which Barr identified Hill as the robber.

Consequently, Hill cannot demonstrate that he was prejudiced

by the trial court’s decision to postpone the trial over his

objection. Because Hill was not prejudiced, the trial court’s

error was not reversible error. See Akins v. State, 429 N.E.2d

232, 245 (Ind.1981) (holding that “[a]ssuming that it was error

for the trial court to grant the continuance, in view of the statute,

it does not necessarily follow that a reversal is required” when

the defendant was not prejudiced by the trial court’s error).

49a

Appendix C

Nevertheless, that error by the trial court did not

deny Hill of his Sixth Amendment right to represent

himself. Under McKaskle, there are two ways in which

a defendant’s right to represent himself can be violated.

McKaskle, 465 U.S. at 178, 104 S.Ct. at 951. First,

standby counsel could “destroy the jury’s perception

that the defendant is representing himself.” Jd. As the

State notes, this context is not at issue here because

there were no jurors present at the March 16th hearing.

Second, the defendant’s right to represent himself

is violated if the pro se defendant is not allowed

“to preserve actual control over the case he chooses to

present to the jury.” /d. Consequently, the pro se

defendant must be allowed to make his own tactical

decisions and to control the questioning of witnesses.

Id. For example, if a defendant has standby counsel and

they disagree about any matter left to the discretion of

counsel during proceedings outside the jury, those

disagreements must be resolved in the defendant’s favor.

Id. at 179, 104 S.Ct. at 951.

Here, while Hill’s decision to proceed to trial without

the presence of Barr could be considered a tactical

decision, it was not a tactical decision that was central

to the defense that Hill was mounting. See, e.g.,

McKaskle, 645 U.S. at 186-188, 104 S.Ct. at 954-956

(holding that standby counsel’s objections and request

for a mistrial did not amount to a denial of a defendant’s

Sixth Amendment right to represent himself when

defendant was permitted to conduct voir dire, question

and cross-examine witnesses, make objections, and make

50a

Appendix C

an opening statement). The trial court permitted Hill

to question all of the witnesses, to argue motions, to

object to evidence, and to present his theory of defense.

Despite the trial court’s error, Hill preserved actual

control over the case that he presented to the jury.

See, e.g., id.

In addition, the fact that the trial court granted the

State’s continuance over Hill’s objection did not deprive

Hill of the right to defend himself. A pro se litigant’s

right to control his defense cannot include a right to

control every aspect of the trial court’s conduct of a trial.

Rather, a pro se litigant should be treated similarly to

counsel representing a defendant; he should be allowed

to make objections and argue motions. Hill was

permitted to place his objection on the record. The fact

that the trial court did not do what Hill wanted does not

equate with Hill not being allowed to represent himself.

To hold otherwise would be tantamount to giving a pro

se litigant more control over a trial than a trial court

because every motion or objection by that litigant would

suddenly have constitutional significance. Hill was not

denied his Sixth Amendment right to represent himself.

Cf Sherwood, 717 N.E.2d at 137 (holding that defendant

was denied his Sixth Amendment right to represent

himself “because he was denied actual control of the case

presented to the jury” when standby counsel presented

a theory of defense that was inconsistent with the

defendant’s theory of defense).

Sla

Appendix C

ITT.

The third issue Hill raises is whether the trial court’s

actions, when combined, denied Hill of his right to free

and complete justice under Article I, section 12 of the

Indiana Constitution. Article I, section 12 of the Indiana

Constitution provides:

“All courts shall be open; and every person,

for injury done to him in his person, property,

or reputation, shall have remedy by due

course of law. Justice shall be administered

freely, and without purchase; completely, and

without denial; speedily, and without delay.”

The first sentence of that provision applies only to civil

proceedings. Sanchez v. State, 749 N.E.2d 509, 514

(Ind.2001). Consequently, only the second sentence of

that provision is at issue here. See id.

Hill’s argument is difficult to follow. Hill admits that

his argument “is not about traditional notions of

procedural or substantive due process.” Appelilant’s

Brief at 37. Rather, he claims “the trial court’s

decision[s], taken as a whole, denied Mr. Hill the free

and complete administration of justice.” Appellant’s

Brief at 30; see also Appellant’s Brief at 37. To support

his argument Hill .sserts “[s]ituations can occur where

an accused was denied a fair trial even though legal

technicalities were met.” Appellant’s Brief at 31.

However, Hill fails to explain how he was denied a fair

trial. He merely asserts that the “technicalities inherent

52a

Appendix C

in the speedy trial rules and the right to represent

himself operate to deny Mr. Hill . . . equity and a fair

trial.” Appellant’s Brief at 36. As we have held that Hill’s

trial comported with the speedy trial rules and Hill’s

Sixth Amendment right to self-representation, we do

not see how he was prejudiced and denied a fair trial by

those decisions.

In addition, Hill asserts that “[u]nder the

requirement that he only be convicted if he receives a

fundamentally just proceeding, there comes a time when

the court’s failure to intervene in the face of Mr. Hill’s

ignorance of procedural requirements violates the

Indiana Constitution.” Appellant’s Brief at 32. However,

“a litigant who proceeds pro se is held to the same

established rules of procedure that trained legal counsel

is bound to follow.” Terpstra v. State, 529 N.E.2d 8389,

842 (Ind.Ct.App.1988), rek’g denied. One of the risks

that a defendant takes when he decides to proceed pro

se is that he will not know how to accomplish all of the

things that an attorney would know how to accomplish.

See Carter v. State, 512 N.E.2d 158, 162 (Ind.1987)

(“A defendant who proceeds pro se, however, must accept

the burdens and hazards of self-representation.”)

Hill does not claim that the trial court failed to inform

him of the risks of proceeding pro se. As Hill knowingly

decided that he wanted to proceed pro se despite his

lack of legal training, he cannot claim on appeal that he

was prejudiced by his own lack of legal knowledge.

See id. (A defendant “may not assert a Sixth Amendment

claim of ineffective assistance of counsel because he, in

53a

Appendix C

effect, would be alleging himself ineffective.”). The trial

court was not required to step in to protect Hill from

himself.

To the extent that Hill is requesting that we

interpret Article I, section 12 to include a heretofore

unarticulated constitutional right, we refuse his request.

Given that Hill’s only explanations about how he was

prejudiced relate to the arguments that we have already

rejected, we need not read a new right into the Indiana

Constitution to protect a defendant who has not

demonstrated how he was prejudiced.

IV.

The final issue we address is whether the evidence

is sufficient to sustain Hill’s convictions. Our standard

of review for this issue is well settled. Alkhalzdz v. State,

753 N.E..2d 625, 627 (Ind.2001). We may not reweigh the

evidence or reassess the credibility of the witnesses

because those tasks lie within the exclusive province of

the jury. Jd. Rather, we view the evidence in the light

most favorable to the verdict and determine whether

the probative evidence and the reasonable inferences

therefrom could have allowed a reasonable jury to find

the defendant guilty beyond a reasonable doubt. Jd.

Based upon both the statute and the charging

information, to convict Hill of robbery as a class A felony,

the State had to prove: (1) Hill; (2) knowingly; (3) took

property; (4) from Barr or from Barr’s presence; (5) by

using or threatening the use of force on Barr, or by

54a

Appendix C

putting Barr in fear; and (6) Hill’s actions resulted in

serious bodily injury to Barr, which was specifically a

gunshot wound to the abdomen. See I.C. § 35-42-5-1;

Appellant’s Appendix at 143.

To convict Hill of criminal confinement as a class B

felony, the State had to prove: (1) Hill; (2) knowingly; (3)

while armed with a handgun, which is a deadly weapon;

(4) confined Wagner without Wagner’s consent by

forcing him to lie on the floor. See I.C. 35-42-3-3;

Appellant’s Appendix at 143.

To convict Hill of carrying a handgun without a

license, the State had to prove: (1) Hill; (2) carried a

handgun on his person or in his vehicle while not at his

home, property, or fixed place of business; (3) without a

license. See I.C. 35-47-2-1; Appellant’s Appendix at 143.

The main thrust of Hill’s sufficiency argument is that

the evidence must be insufficient to support his

convictions because no one ever positively identified him

as the person who was at the liquor store on May 9,

2000. While Hill’s assertion that no one positively

identified him as the robber is correct, his assertion that

we must therefore hold that the evidence was

insufficient to sustain his conviction is incorrect.

“[A] criminal conviction may be based solely upon

circumstantial evidence.” Woodson v. State, 542 N.E.2d

1331, 1333 (Ind.1989). The question that we must ask

on review is whether “an inference may be drawn from

such evidence that supports the fact-finder’s

conclusion.” /d.

55a

Appendix C

Here, the evidence indicates that a man, armed with

a gun and wearing a white jacket, jean shorts, white

tube socks, and white tennis shoes, shot Barr in the

stomach, ordered Wagner to open the register and lie

on the floor, and stole money from the register at the

liquor store. After the robbery, the robber drove from

the liquor store and crashed into trees on Pleasant Run

Drive. The robber exited the car, leaving behind the gun

that he had used to shoot Barr, and then he ran through

the creek and toward the vicinity of Gale Street. Between

the creek and Gale Street, the police found a beige

jacket. Moments later, a winded Hill knocked on the

door at the Sterlings’ house on Gale Street asking to

use the phone. Hill claimed that he had been carjacked,

but he called a friend rather than calling the police. Hill

was wearing jean shorts, white socks, and white tennis

shoes, and he had to take his socks off to wring them

out because they were soaked with water. Hill’s

fingerprint was found on the outside of the window of

the driver’s side door of the car that the robber had

been driving, and Hill had over three hundred dollars

in small bills on his person when he was arrested. These

facts support an inference that Hill was the person who

committed these crimes. See, e.g., id. In addition, this

evidence is sufficient to support the other elements of

the three crimes of which Hill was convicted. See, e.g.,

Ortiz v. State, 716 N.E.2d 345, 352 (Ind.1999) (affirming

class A robbery conviction); Taylor v. State, 578 N.E.2d

664, 666 (Ind.1991) (affirming conviction for carrying a

handgun without a license); Chapman v. State, 556

N.E.2d 927, 931 (Ind.1990) (affirming criminal

confinement conviction).

56a

Appendix C

For the foregoing reasons, we affirm Hill’s

convictions for carrying a handgun without a license as

a class A misdemeanor, cr. minal confinement as a class

B felony, and robbery as a class A felony.

Affirmed.

FRIEDLANDER, J., and BROOK, C.J., concur.

57a

APPENDIX D— ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH

CIRCUIT DENYING PETITION FOR REHEARING

DATED APRIL 4, 2008

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

April 4, 2008

Before

FRANK H. EASTERBROOK, Chief Judge

WILLIAM J. BAUER, Circuit Judge

RICHARD A. Posner, Circuit Judge

No. 2:04-CV-206 PS

Philip P Simon, Judge.

No. 06-2777

ASHER B. HILL,

Petitioner-Appellant,

V.

BILt WILSON, SUPERINTENDENT,

WESTVILLE CORRECTIONAL FACILITY,

Respondent-A ppellee.

58a

Appendix D

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

Order

Petitioner-appellant filed a petition for rehearing

and rehearing en banc on March 24, 2008. No judge in

regular active service has requested a vote on the

petition for rehearing en banc, and all of the judges on

the panel have voted to deny rehearing. The petition

for rehearing is therefore DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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