Gavin Christopher Combs, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Gavin Christopher Combs appeals from the post-conviction court's denial of his petition for post-conviction relief. We restate the issues presented as follows:

I. Whether Combs’ Fourth Amendment claim is waived by failing to present it to the post-conviction court, is barred by the doctrine of res judicata, or is otherwise not prevailing;

II. Whether Combs received ineffective assistance of trial counsel;

III. Whether Combs received ineffective assistance of appellate counsel; and

IV. Whether the trial court's actions showed bias or were violative of due process.1

We affirm.

Facts and Procedural History

A. Background

[2] On August 15, 2020, Brownsburg Police Sergeant Ben Pyatt was parked in the median of Interstate 65 watching traffic. He had received information from the Bloomington Police Department and the Indianapolis DEA, who were tracking Combs through a GPS tracking device, that Combs would be passing through Hendricks County on his way home to Harrodsburg from Chicago.

[3] At 12:13 a.m., Sergeant Pyatt observed Combs driving in a manner that “maybe you could put a car between” his car and the pickup truck immediately ahead of him. DA Tr. Vol. II, p. 26. Sergeant Pyatt pulled out of the median, and, after observing Combs drifting onto and over the fog line, initiated a traffic stop. He then approached the front passenger door and began to speak with Combs at bodycam timestamp 12:16. Combs provided his driver's license, and Sergeant Pyatt asked that Combs come to his patrol car while Combs’ nephew, who was in the front passenger seat, remained in the car. Combs tried to hand the officer his wallet instead of providing his driver's license from the wallet. Pyatt observed that Combs’ hand was “trembling pretty good.” Id. at 35. Combs also dropped something while stepping out of his car and he initially attempted to go to the driver's side of the patrol car.

[4] The officer informed Combs that he was going to issue a warning ticket for following a car too closely and crossing the fog line. Over the course of the next nine minutes, Sergeant Pyatt requested and wrote down Combs’ information, including his name, address, and driver's license number. Combs informed the officer that he was driving home to Harrodsburg after visiting a friend in Lafayette. Combs’ voice became softer and quieter when stating that he had come from Lafayette. Ten minutes into the traffic stop, Sergeant Pyatt exited his patrol car and walked to Combs’ car where he asked Combs’ nephew for the car registration paperwork from the glove box. He asked Combs’ nephew about their travel itinerary. The nephew initially stated that they were traveling to Indianapolis from Bloomington but then claimed they had come from Hammond.

[5] Sergeant Pyatt returned to his patrol car roughly twelve minutes into the stop and requested assistance from an officer with a police dog, who had been waiting nearby to help as needed. The request for assistance was based on the conflicting travel itinerary stories. The officer and his police dog, Lance, arrived on scene. Sergeant Pyatt asked Combs if there was anything in the car. Combs responded, “No” and asked the officer if he wanted to check the car. Id. at 41. The other officer told Sergeant Pyatt that Combs’ nephew would have to be out of the vehicle before Lance could conduct an open-air sniff. Combs then told the officers that they could search the car. Sergeant Pyatt asked whether Combs was giving him permission to search the car, and Combs said they could.

[6] After Combs’ nephew left the vehicle, Lance performed the test and stopped and alerted beside the driver's side passenger door. The car was searched and a clear plastic bag containing 59.15 grams of a grey-brown substance that was later determined to contain heroin was found in the car.

B. Charges, Trial, and Direct Appeal

[7] “In August 2021, Gavin Christopher Combs was charged with level 2 felony dealing in a narcotic drug and level 3 felony possession of a narcotic drug after police found over 59 grams of a substance containing heroin in his car.” Combs v. State, No. 23A-CR-1756, *1 (Ind. Ct. App. Dec. 15, 2023) (mem.). The trial court initially appointed a public defender. Combs later retained private counsel, Attorney Katie Kawiecki, who represented him on his motion to suppress. Attorney Kawiecki withdrew and Attorney Brian Johnson was appointed to represent Combs at trial. “During the State's case-in-chief at his March 2023 jury trial, Combs objected to evidence regarding the heroin on the basis that the search of his car was unconstitutional.” Id. “The trial court overruled his objections.” Id. “Combs then testified that he purchased the heroin for personal use and not for dealing to others.” Id. “The jury acquitted him of the dealing charge and found him guilty of the possession charge.” Id. “The trial court sentenced him to nine years.” Id.

[8] Combs appealed his conviction, arguing that the trial court erred in admitting the heroin evidence he objected to at trial. Id. We found no reversible error and affirmed his conviction, concluding that “[t]he evidence in the State's casein-chief that Combs possessed heroin is merely cumulative of Combs's testimony that he possessed heroin[.]” Id.

C. Initial Post-Conviction Relief Proceedings

[9] “On January 10, 2024, Combs filed a petition for post-conviction relief, which was amended on February 29.” Combs v. State, No. 24A-CR-1104 *1 (Ind. Ct. App. October 30, 2024) (mem.). “He alleged that he had received ineffective assistance of both trial and appellate counsel.” Id. (footnote omitted).

[10] “The State filed a motion for summary disposition, and Combs filed an objection.” Id. “On April 15, 2024, the post-conviction court issued an order as follows:

The Court has received and reviewed the State's Motion for Summary Disposition of Petitioner's Amended Petition for Post-Conviction Relief. Granted. The Court rules against the Defendant. Further, the Defendant shall file any future petitions for post-conviction relief under a PC cause number with the Hendricks County Clerk. Defendant may not file his petition for post-conviction relief in the original criminal case. Hearing set for June 11, 2024 is vacated.

Id. (quoting Appealed Order at 1). Combs appealed the post-conviction court's denial of relief. Id. He challenged the court's summary disposition of the petition after reviewing the pleadings, claiming procedural error because he alleged factual issues pertaining to his ineffective assistance of counsel arguments, which are evidentiary issues. Id. We reversed the post-conviction court's decision and remanded the matter for further proceedings. Id. at *3.

D. Post-Conviction Proceedings on Remand

[11] On remand, the post-conviction court held an evidentiary hearing. The court took judicial notice of the trial and suppression hearing transcripts and exhibits. At the hearing, Combs called Attorney Kawiecki, counsel he retained to represent him at trial, to testify about her representation of him.

[12] She testified that she reviewed the probable cause affidavit with Combs and was “concerned” about “whether or not there was a valid traffic stop.” PCR Tr. Vol. II, p. 11. She filed a motion to suppress, after which the State produced additional discovery identifying the existence of a GPS warrant. Attorney Kawiecki decided not to challenge the validity of the GPS warrant or argue that it invalidated the traffic stop because the officers could stop Combs “[f]or any reason that they wanted to stop [him] that day as long as there was a valid traffic stop.” Id.

[13] Additionally, she testified that Combs chose to testify at his suppression hearing despite her “vehement legal advice” against testifying. Id. at 12. She recalled that Combs’ testimony corroborated that of Sergeant Pyatt. Combs testified that he had steering problems with his car, and that he did not have any competency concerns, nor was there any coercion into consenting to the search of the car. Attorney Kawiecki believed that Combs’ suppression hearing testimony closed “some viable options” to argue that he had been coerced into consenting to the search of the car. Id. at 13. She decided to argue that the traffic stop was unreasonably prolonged. But the trial court disagreed and denied the motion to suppress.

[14] Attorney Johnson testified that he was appointed to represent Combs at trial after Attorney Kawiecki's dismissal. He agreed with her understanding that while the evidence of the GPS warrant might undermine the credibility of the officers as to the reason for the traffic stop, it would not have affected the admissibility of evidence resulting from the traffic stop if there was “an objectively reasonable basis to pull” Combs’ vehicle over. Id. at 43.

[15] Additionally, he testified that he raised objections at trial to preserve the arguments raised in Kawiecki's suppression motion. As for trial strategy, he argued that Combs was not a dealer but was an addict. That strategy proved to be successful because Combs was acquitted of the count alleging Level 2 felony dealing in a narcotic drug. Johnson shared his criticism of the result reached in Combs’ direct appeal, and then stated,

At that point in time you know my feeling is that it's unlikely that the Court of Appeals would have reassessed the credibility of the officers. They wouldn't have done it. It's unlikely that they would have done anything on those Fourth Amendment issues and Mr. Combs[’] best opportunity to avoid a much lengthier sentence was to do exactly what we did and which is ultimately what happened.

Id. at 54

[16] After Attorney Johnson testified, the court observed that Combs had subpoenaed his appellate counsel, Attorney Lisa Manning. The return of service for the subpoena was “not deliverable at the address, unclaimed.” Id. at 56. Combs stated that his “complaint” with Attorney Manning is that she had not communicated or sent him information about his case during the appeal. Id. at 57. He alleged that he had directed her to file a petition to transfer or seek rehearing. After discussing the confusing language on the return for the subpoena, the PCR court offered to continue the hearing so Combs could attempt again to subpoena Attorney Manning. Combs accepted the court's offer, and the court directed the clerk to reissue the subpoena.

[17] Combs testified at the hearing and said he had written a letter to the trial court asking for new counsel because he had fired Attorney Kawiecki. He claimed that the trial court's response, setting a hearing for counsel and denying any request for an interlocutory appeal, showed bias and prejudice by the trial court. Additionally, he asserted that in the post-conviction matter, the State's motion for summary disposition had stated that “the original court [Judge LeMay-Luken] in this matter ordered that this matter be submitted without hearing.” Id. at 76. Combs claimed this was evidence that ex parte communication had occurred between the State and the PCR court.

[18] At the end of the hearing, the PCR court inquired again whether Combs wished to re-subpoena Attorney Manning or whether he wished to stand on the pleadings he had filed. Combs stated that he would send interrogatories to Attorney Manning and a prison mail employee. The PCR court noted that an interrogatory was discovery and not evidence and asked whether Combs wanted to continue the hearing. Combs requested a continuance, which the PCR court granted, setting the hearing to resume on April 10, 2025.

[19] On April 2, Combs filed a motion for summary disposition under Post-Conviction Rule 1(4)(g). Combs asserted that “[a]fter testimony and evidence submitted at [the] Post-Conviction hearing held on the 14th of March 2025, I[,] the petitioner[,] feel like there are no issues of material facts that should preclude this hearing from being decided as a matter of law.” Appellant's App. Vol. II, p. 163. He stated that “under Mr. Johnson's testimony I feel like no further testimony from Ms. Manning is required.” Id. at 171.

[20] On April 16, 2025, the PCR court issued a written order denying Combs’ petition for post-conviction relief. Among its findings, the PCR court found that trial counsel were not ineffective in arguing to suppress evidence or at trial. The court found that Combs had failed to prove his trial counsel performed deficiently by failing to challenge the search of his car based on the GPS tracking warrant because Combs committed two independent traffic infractions. The PCR court also found that Combs had failed to prove that Attorney Manning's performance was deficient, and that he had waived any examination of her. Additionally, the PCR court found that Combs was not prejudiced by the trial court's denial of an interlocutory appeal that he did not request. Combs appeals from the denial of his petition for post-conviction relief.

Discussion and Decision

Standards of Review

[21] “Post-conviction procedures do not afford the petitioner with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[22] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[23] And to the extent that any of Combs’ arguments suggest the ineffective assistance of trial and/or appellate counsel, the following standard of review applies. “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[24] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). For the first component, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this component, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[25] For the second component, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (italics added, internal quotation omitted).

[26] A petitioner's failure to satisfy either component will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

[27] And ineffective assistance of appellate counsel claims generally fall into three basic categories. They are: “(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). “To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential.” Id. “To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are ‘clearly stronger than the raised issues.’ ” Id. (quoting Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001)). “If the analysis under this test demonstrates deficient performance, then we examine whether, ‘the issues which ․ appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial.’ ” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) (citation omitted)). And we must

consider the totality of an attorney's performance to determine whether the client received constitutionally adequate assistance ․ [and] should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made.

Id. at 1195-96 (quoting Bieghler, 690 N.E.2d at 194). “Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal.” Reed, 856 N.E.2d at 1196. “One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.” Id.

I. Waiver and Res Judicata

[28] Combs asks us to revisit our decision in his direct appeal in which we affirmed the trial court's denial of his motion to suppress. This issue is unreviewable because Combs did not present it to the post-conviction court, thus waiving it, and the doctrine of res judicata precludes our review.

[29] Combs is proceeding pro se in this appeal. In addition to the appropriate standards set out above, we note that “[a] litigant is not given special consideration by virtue of his pro se status.” Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). Instead, “ ‘pro se litigants are held to the same legal standards as licensed attorneys.’ ” Id. (quoting Sidener v. State, 446 N.E.2d 965, 966 (Ind. 1983)). “ ‘This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.’ ” Id. Combs has waived this issue for our review because he did not raise it before the post-conviction court. It is well settled that a party may not raise one ground before the trial court and a different ground on appeal. Wurster v. State, 715 N.E.2d 341, 347-48 (Ind. 1999).

[30] “Res judicata serves to prevent repetitious litigation of disputes which are essentially the same.” Hilliard v. Jacobs, 957 N.E.2d 1043, 1046 (Ind. Ct. App. 2011), trans. denied, cert. denied, 568 U.S. 998 (2012). “Claim preclusion, [one of two components of res judicata] applies when a final judgment on the merits has been rendered in a prior action, and it acts to bar a subsequent action on the same claim between the same parties.” Id.

Claim preclusion applies when the following four factors are satisfied: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies.

Id.

[31] Every factor has been satisfied here. First, this Court's decision on Combs’ direct appeal considering this very issue was made by a court of competent jurisdiction. Ind. Appellate Rule 5(A) (“[T]he Court of Appeals shall have jurisdiction in all appeals from Final Judgments of ․ Superior Courts[.]”). Second and third, as discussed in detail above, the Fourth Amendment challenges he makes now and that he made on direct appeal were thoroughly considered and determined on the merits. And last, the parties—Combs and the State—are the same here as in the direct appeal.

[32] Nevertheless, Combs argues that this Court's decision in his direct appeal is contrary to this Court's decision in Hendricks v. State, 897 N.E.2d 1208 (Ind. Ct. App. 2008) (defendant did not waive or abandon right to object on appeal to introduction of cocaine in evidence by later admitting at trial he possessed it). Assuming for the sake of argument that the cases are in conflict, this Court does not recognize horizontal stare decisis. In re C.F., 911 N.E.2d 657, 658 (Ind. Ct. App. 2009). Therefore, the panel of this Court in Combs’ direct appeal was not required to agree with the panel of this Court in Hendricks.

[33] Nevertheless, Combs’ argument remained consistent throughout his criminal proceedings until the present appeal from the PCR court's denial of his petition. He argued at trial that he was challenging only the evidence of his intent to deal in heroin, not that he was in his possession of it. A panel of this Court in his direct appeal reasonably concluded that the potential error in the admission of the evidence found in Combs’ possession was harmless error in light of his testimony and argument that he possessed the heroin for use only; in other words, the evidence was cumulative of Combs’ testimony. Combs, slip op. at 2.

[34] Combs claims a manifest injustice exists because “[t]he officer involved in this case tried to perpetrate a fraud on the Court,” arguing the traffic stop was really the result of the GPS tracking warrant on Combs’ car. Appellant's Br. pp. 15-16. However, the record reveals that Sergeant Pyatt observed Combs’ vehicle cross over the fog line and follow another vehicle too closely. DA Tr. Vol. II, p. 26. Officers may conduct a traffic stop where there is reasonable suspicion that they have observed a traffic violation. Doctor v. State, 57 N.E.3d 846, 853 (Ind. Ct. App. 2016). “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States., 517 U.S. 806, 813 (1996). Whether Sergeant Pyatt was aware of the GPS warrant or not does not alter the fact that he had reasonable suspicion to stop Combs when he observed the driving infractions. Thus, no manifest injustice is present.

[35] Furthermore, Combs has not established that the traffic stop was unreasonably prolonged. Combs consented to the search of his car during the stop. And Sergeant Pyatt did not unreasonably prolong the stop. He spent approximately sixteen minutes collecting Combs’ identifying information, travel itinerary, vehicle registration, and preparation of paperwork for the traffic citation before the dog sniff occurred. “A warrantless search based on lawful consent is consistent with both the Indiana and Federal Constitutions.” Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008). Combs not only consented to the search but was the first person to suggest a search. And “a reasonable narcotics dog sweep is not a search for the purpose of the Fourth Amendment or Article 1, § 11.” Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). Here, there is nothing in the record to suggest that the stop was prolonged to stall completion of the traffic citation until a dog sniff could be conducted. The traffic infraction citation had not yet been completed at twelve minutes into the stop.

[36] Although Combs’ direct appeal decision did not consider whether the traffic stop was unreasonably prolonged, the facts and circumstances before us do not indicate that such was the case. See Rodriguez v. United States, 575 U.S. 348, 354-57 (2015) (dog sniff that prolongs detention of vehicle after traffic stop is completed or reasonably should be completed violated Fourth Amendment unless further detention is independently supported by reasonable suspicion of criminal wrongdoing). It is undisputed that the purposes of the traffic stop had not yet been completed when the dog sniff occurred. However, assuming arguendo that the traffic stop was extended, the facts additionally reveal that Sergeant Pyatt developed reasonable suspicion that Combs was operating under the influence of an intoxicating substance and was concealing criminal activity based on Combs’ and Combs’ nephew's conflicting descriptions of their itinerary. See Guthery v. State, 180 N.E. 3d 339, 348 (Ind. Ct. App. 2021) (independent reasonable suspicion justified further detention).

[37] And, as a final matter, we reject Combs’ assertion that Sergeant Pyatt unlawfully extended or prolonged the traffic stop by placing Combs in his patrol car to gather information. See Appellant's Br. p. 29. Combs failed to present this argument to the post-conviction court and did not raise it in his direct appeal. His argument is waived. See Timberlake 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.”); Shorter v. State, 144 N.E.3d 829, 841 (Ind. Ct. App. 2020) (an issue may not be raised for the first time on appeal), trans. denied. Nevertheless, for reasons of the officer's and Combs’ safety, asking him to leave the side of the busy highway, after Combs exhibited some signs of impairment, were valid reasons for the officer's request under these circumstances.

[38] Combs’ arguments are either waived or barred by res judicata. And we find no error otherwise in any of the arguments raised by Combs.

II. Ineffective Assistance of Trial Counsel Claims

[39] Combs contends that his trial counsel, Kawiecki and Johnson, were ineffective for failing to challenge the GPS tracking warrant. He alleges that the GPS warrant was not based on probable cause, the traffic stop was, in effect, a pretextual stop meant to carry out the purposes of the GPS warrant, and that the officers did not rely on the warrant in good faith. See Appellant's Br. pp. 30-38.

[40] The post-conviction court correctly found that Combs has not offered any evidence to support his argument that the GPS tracker warrant was invalid. See Appellant's App. Vol. II, p. 42. Although Combs questioned both Kawiecki and Johnson about the GPS tracker warrant and their strategies involving the same, he did not offer any evidence that the GPS tracker warrant was invalid. Furthermore, his argument ignores the testimony of both counsel to the effect that the independent traffic infractions observed by the officers validated and supported the traffic stop regardless of the existence of the GPS tracker warrant.

[41] “Bald assertions of error do not establish ineffectiveness of trial counsel absent proof in the record supporting the allegations.” Barnett v. State, 579 N.E.2d 84, 88 (Ind. Ct. App. 1991), trans. denied. Attorneys Kawiecki and Johnson did not render deficient performance by foregoing challenges for which there was no valid basis. See Jones v. State, 151 N.E.3d 790, 802-03 (Ind. Ct. App. 2020) (counsel not ineffective by foregoing challenge to search warrant where challenge would have no effect on case), trans. denied. Combs has not met his burden of showing that his trial counsel should have challenged the GPS tracker warrant.

[42] In sum, the post-conviction court did not err by rejecting Combs’ ineffective assistance of trial counsel claim.

III. Ineffective Assistance of Appellate Counsel Claim

[43] Combs also argues that Attorney Manning, his appellate counsel, provided ineffective assistance because she did not file a petition for rehearing or a petition for transfer from this Court's decision on his direct appeal. He also claims that she failed to communicate with him during the course of his appeal, failed to withdraw her appearance, and harmed his case by conceding that he committed a traffic violation. Appellant's Br. pp. 40, 43.

[44] Combs waived his claims against Attorney Manning when he sought summary disposition explicitly stating, “under Mr. Johnson's testimony [criticizing this Court's decision in light of Hendricks] I feel like no further testimony from Ms. Manning is required.” Appellant's App. Vol. II, p. 171.

[45] The procedural posture of this issue is different than the appeal after the initial summary disposition of Combs’ petition. There, the State moved for, and the trial court granted, summary disposition of Combs’ petition, which raised ineffective assistance of counsel claims. We reversed and remanded the post-conviction court's judgment because ineffective assistance of counsel claims by nature require factual determinations that cannot be determined solely upon the face of the pleadings. See Combs, No. 24A-CR-1104 at *3.

[46] Here, Combs raised the issue of ineffective assistance of trial and appellate counsel, and received a continuance from the court to subpoena Attorney Manning to testify at that later date. But Combs subsequently filed a motion for summary disposition, stating that he felt like “no further testimony from Ms. Manning is required.” Appellant's App. Vol. II, p. 171. Thus, the trial court had only Combs’ bald assertions of ineffectiveness, the evidentiary record developed thus far, and the pleadings upon which to decide the issue. And Combs did not rebut the strong presumption that his counsel was effective. We find no error in the post-conviction court's decision.

[47] Although Combs had an absolute right to an appeal to this Court, see Ind. Const. art. 7, § 6; also App. R. 4(A)(1), the United States Supreme Court has held that the United States Constitution does not guarantee a defendant in a criminal case the right to counsel to appeal for discretionary review. See Wainwright v. Torna, 455 U.S. 586, 587 (1982). And it follows that if a petitioner has no constitutional right to counsel, he likewise has no constitutional right to effective assistance of counsel. Id. at 587-88. Thus, Combs had no right to effective assistance of counsel in seeking discretionary review via a petition to transfer.

[48] Furthermore, our Supreme Court has noted that “[a] healthy majority of lawyers who lose before the Indiana Court of Appeals, for example, elect not to seek transfer. On the fact of it, without any explanation, a lawyer who does not petition for transfer has simply performed according to the statistical norm.” Yerden v. State, 682 N.E.2d 1283, 1286 (Ind. 1997).

[49] As for Combs’ argument about failures concerning a petition for rehearing, this argument is waived. Combs’ argument in his motion for summary disposition was that his direct appeal was wrongly decided as harmless error. Appellant's App. Vol. II, pp. 169, 171 (Motion for Summary Disposition). Yet prior to filing that motion, he argued only that the wrong standard was used—harmless error and not harmless error beyond a reasonable doubt. PCR Tr. Vol. 2, p. 55. “Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.” Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001).

[50] Moreover, had Manning sought rehearing, her request would not have prevailed. The fact that the panel of this Court in Hendricks came to a different conclusion than the panel in Combs’ direct appeal about the effect of the defendant's admission that he possessed drugs for his own use would not have prevailed given we do not recognize horizontal stare decisis. In re C.F., 911 N.E.2d at 658. Plus, as we have discussed above, there was sufficient evidence to support the holding based on Combs’ traffic violations, his consent to search his car, the reasonable length of the traffic stop, and the reasonable suspicion that Combs was intoxicated during the stop. Attorney Johnson testified at the post-conviction hearing as follows:

Mr. Combs was clearly high. At that point in time you know my feeling is that it's unlikely that the Court of Appeals would have reassessed the credibility of the officers. They wouldn't have done it. It's unlikely that they would have done anything on those Fourth Amendment issues and Mr. Combs’ best opportunity to avoid a much lengthier sentence was to do exactly what we did and which is ultimately what happened.

PCR Tr. Vol. II, p. 54.

[51] His argument challenging Attorney Manning's communication with him during his appeal fails because he has not met his burden of proof. Combs presented mail records showing that Manning had not communicated with him. However, he did not show that no other form of communication occurred. And he has not shown how he was prejudiced by any lack of communication during his appeal, assuming such was the case. The record simply does not show that he informed Attorney Manning that he wanted her to withdraw her appearance and that she ignored his requests. To the extent the lack of communication and failure to withdraw may have prevented Combs from filing a petition for rehearing or transfer, he was not prejudiced because those petitions would have failed.

[52] As a final matter, Combs’ assertion that Attorney Manning's performance was deficient because she conceded that he committed a traffic violation fails. Decisions regarding what issues to raise are among the most important strategic decisions to be made by appellate counsel. Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000). Combs cannot show prejudice based on Attorney Manning's strategic concession that Combs’ vehicle crossed the fog line, thus committing an infraction, which was supported by evidence of Sergeant Pyatt's dash camera footage showing as much. Attorney Manning's decision to appeal the potentially stronger appellate argument that the stop was prolonged was a reasonable one.

[53] Combs has not met his burden of showing that the post-conviction court erred by denying his claim of ineffective assistance of appellate counsel.

IV. Judicial Bias

[54] Combs also claims that the trial court judge, Judge LeMay-Luken, and the initial PCR court judge, also Judge LeMay-Luken, exhibited judicial bias, violating due process. “The law presumes that a judge is unbiased and unprejudiced.” Timberlake v. State, 753 N.E.2d 591, 610 (2001). “Our Judicial Code provides that when a judge's impartiality might be reasonably questioned because of personal bias against a defendant or counsel, a judge is to recuse himself.” Id. (citing Ind. Judicial Conduct Canon 3(E)(1)(a)). Prejudice exists where “an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge's impartiality.” In re Edwards, 694 N.E.2d 701, 711 (Ind. 1998). “A defendant asserting judicial bias must show that the trial judge's actions and demeanor showed partiality and prejudiced the case.” Woods v. State, 98 N.E.3d 656, 664 (Ind. Ct. App. 2018).

[55] Combs asserts that, at trial, Judge LeMay-Luken showed bias by denying him an interlocutory appeal. However, Combs never requested an interlocutory appeal. Furthermore, this purported claim was known and available for review on direct appeal. But Combs did not raise it. “If an issue was known and available, but not raised on direct appeal, it is waived.” Timberlake, 753 N.E.2d at 597.

[56] Moreover, Combs simply has no evidence with which to meet his burden of showing bias or prejudice. Combs’ letter in which he asked for a public defender noted his awareness that there were “time limits” on interlocutory appeals. DA Appellant's App. Vol. II, p. 82. The trial court held a hearing to address the request for counsel and responded to the comment about time limits for interlocutory appeals by denying it. Id. at 84. The reasonable inference drawn from the trial court's ruling is not bias or prejudice, but, instead, that the court cautiously ensured all possible interpretations of Combs’ letter were addressed. And Combs cannot show prejudice where the trial court ensured that Combs received a response to every reasonable interpretation of his letter to the court.

[57] Next, Combs argues that Judge LeMay-Luken, this time as the judge presiding over his initial post-conviction proceedings, was prejudiced against him. He contends that the court engaged in ex-parte communications with the State. As evidence of this claim, Combs offers the State's comment in its motion for summary disposition filed on March 12, 2024, in which it stated, “The original court in this matter ordered that this matter be submitted without hearing.” PCR Appellant's App. Vol. III, p. 41. Combs asserts that there is no such order. And the CCS indicates that a hearing on his petition was set when the State filed its motion for summary disposition. PCR Appellant's App. Vol. II, pp. 27-28 (post-conviction hearing set for 6/11/24 by order entered 1/24/24; summary disposition filed 3/12/24). Thus, the State's reference to an “order” appears to be a scrivener's error, rather than evidence that ex-parte communications occurred. Nevertheless, even if that sentence of the State's motion for summary disposition was not erroneous, an adverse decision—denial of his petition—does not alone show judicial bias per se. Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009), trans. denied. “[B]ias will rarely, if ever, be found on the face of rulings alone because the defendant must show an improper or extra-judicial factor or such a high degree of favoritism that a fair judgment was impossible.” Id. Combs has offered no evidence to meet his burden.

[58] As a final matter, Combs makes a brief reference that his mail was sent to Attorney Manning when he first filed his petition for post-conviction relief. Appellant's Br. p. 49. However, Combs never presented any evidence to support this argument at his fact-finding hearing, and he does not argue on appeal how this would constitute bias. Consequently, this claim is waived for failure to raise the issue below and to develop the argument on appeal.

[59] Combs has not met his burden of establishing judicial bias or prejudice.

Conclusion

[60] Combs’ Fourth Amendment arguments are waived, barred by res judicata, and we find no error regarding those claims otherwise. Additionally, Combs has not met his burden of establishing that he received ineffective assistance of trial or appellate counsel. And Combs has failed to meet his burden of showing judicial prejudice or bias, let alone a due process violation. For these reasons, we affirm the post-conviction court's judgment.

[61] Affirmed.

FOOTNOTES

1.   Combs raises an additional issue: “Whether Post-conviction Judge was in error for ruling on my entire petition for post-conviction when I filed a motion for summary disposition?” Appellant's Br. p. 6. However, Combs has not made or developed the claim in the argument section of his brief. See id. at 12-51. As such, this claim is waived and we cannot review it. See Ind. Appellate Rule 46(A)(8)(a) (contentions must be “supported by citations to authorities, statutes, and the Appendix or parts of the Record on Appeal[.]”); State v. Holtsclaw, 977 N.E.2d 348, 350 (Ind. 2012) (same).

Baker, Senior Judge.

May, J., and Scheele, J., concur.