Cameus Barnett, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Cameus Barnett appeals pro se the Vanderburgh Circuit Court's order denying his petition for post-conviction relief. Barnett argues that the court abused its discretion by failing to hold an evidentiary hearing and that his trial counsel and appellate counsel denied him effective assistance of counsel.

[2] We affirm.

Facts and Procedural History

[3] In 2008, Barnett was convicted of Class A felony sexual deviate conduct and Class D felony strangulation. The trial court ordered Barnett to serve concurrent terms of fifty-five years for sexual deviate conduct and three years for strangulation. Barnett appealed his sentence, and the following facts set forth in our memorandum decision are relevant to this appeal:

On the morning of October 12, 2007, E.R., an acquaintance of Barnett, was sleeping in her home in Evansville, Indiana, when she was awakened by Barnett “pushing on [her] back.” (Trial Transcript pp. 47-50). E.R. yelled to her son, but Barnett put a towel over her face and grabbed her around her neck so that E.R. could not get any air. Barnett then “violently” put his fingers in E.R.’s anus. (Trial Tr. p. 81). Barnett eventually fled the house, and E.R. called police. E.R. told police that Barnett had put his fingers in her anus and also alleged that he had put his penis in her vagina.

On October 16, 2007, the State filed an Information charging Barnett with: Count I, rape, as a Class A felony, I.C. § 35-42-4-1; Count II, burglary resulting in bodily injury, a Class A felony, I.C. § 35-43-2-1; Count III, criminal deviate conduct, as a Class A felony, I.C. § 35-42-4-2; and Count IV, strangulation, a Class D felony, I.C. § 35-42-2-9. A jury trial was held from October 6-8, 2008. The jury hung on Counts I and II but found Barnett guilty as charged on Counts III and IV.

Barnett v. State, No. 82A01-0812-CR-558, 2009 WL 2014115, at *1 (Ind. Ct. App. July 13, 2009). On appeal, Barnett argued that the trial court abused its discretion by considering an improper aggravating circumstance and that his aggregate sentence was inappropriate in light of the nature of his offenses and his character. Our court disagreed and affirmed Barnett's sentence. Id. at *4.

[4] Almost fifteen years later, on February 29, 2024, Barnett filed a pro se petition for post-conviction relief. In that petition, he alleged that his trial counsel was ineffective for failing to object “to the admission of testimony that was not supported by the actual [c]rimes lab report and the sexual assault diagram and assessment that was done by the St. Mary's Medical Examiner ․” Appellant's App. Vol. 2, p. 25. Barnett also argued that trial counsel should have submitted evidence at trial that a DNA analysis had established that DNA from an unknown male was found during the victim's examination. Id. at 26. Concerning his claims of appellate counsel ineffectiveness, Barnett alleged that counsel had failed to argue that “no Sentencing Order ․ or the Judgment of Conviction ․ was in the record by filing it with the clerk of the Court neither was it prepared for the Appellate Court upon his Appeal” as required by Appellate Rule 9. Id. at 27. Finally, Barnett claimed that his appellate counsel “should have raised the issue of the appropriateness of the sentence as a constitutional error.” Id. at 28. Barnett later amended his petition to include a claim that appellate counsel was ineffective for failing to claim that the magistrate that presided over his trial and sentenced him was not properly appointed.

[5] In July, the State Public Defender filed a notice of non-representation. Thereafter, the post-conviction court ordered the parties to proceed by affidavit on Barnett's petition. After the parties filed their submissions to the court, the post-conviction court issued an order denying Barnett's petition for post-conviction relief.

[6] Barnett now appeals.

Standard of Review

[7] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019). The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal. See Gibson, 133 N.E.3d at 681. “Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. (quoting Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012)). The defendant bears the burden to establish his claims by a preponderance of the evidence. See P-C.R. 1(5). And a defendant appealing from a negative judgment denying post-conviction relief “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)).

[8] Here, the post-conviction court made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Therefore, we will reverse the findings and judgment “only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). And we will not reweigh the evidence. See Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (explaining the post-conviction court is the “sole judge of the evidence and the credibility of the witnesses”) (citation omitted).

The post-conviction court did not abuse its discretion when it ordered Barnett to proceed by affidavit.

[9] Barnett contends that there were issues of fact that had to be resolved to address the claims raised in his petition for post-conviction relief. Therefore, he argues that the post-conviction court abused its discretion when it failed to hold an evidentiary hearing in this case.

[10] Post-Conviction Rule 1(9)(b) provides a “distinct way for a [post-conviction court] to rule on a petition without an evidentiary hearing” when a petitioner proceeds pro se. Laboa v. State, 131 N.E.3d 660, 664 (Ind. Ct. App. 2019) (quoting Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied). Pursuant to that rule, the court may require the cause to be submitted by affidavit. P-C.R. 1(9)(b). When a post-conviction court orders the parties to proceed by affidavit, “it is the court's prerogative to determine whether an evidentiary hearing is required.” Smith, 822 N.E.2d at 201. An evidentiary hearing is not required solely because an affidavit raises issues of fact. Id. Rather, requiring a full evidentiary hearing in all such circumstances “would defeat the purpose of Rule 1(9)(b), which is to allow for more flexibility in both the presentation of evidence and the review of post-conviction claims where the petitioner proceeds pro se.” Id. The post-conviction court may deny a petition “without further proceedings” if “the pleadings conclusively show that petitioner is entitled to no relief.” P-C.R. 1(4)(f).

[11] Barnett submitted two documents to the trial court in support of his petition for post-conviction relief.¹ The first is a letter dated May 19, 2009 from his appellate counsel responding to Barnett's request that appellate counsel raise certain issues on appeal. In his letter, appellate counsel explained that the issues Barnett asked him to raise would not have succeeded on appeal. Appellant's App. Vol. 2, p. 47. The second document was State's Trial Exhibit 28, which was the victim's admission form and medical reports from St. Mary's Medical Center. Id. at 48-65.

[12] Barnett claims that the record presented to our court in his appendix “contains issues of material fact[ ] that cannot be otherwise[ ] determined solely” by affidavit. Appellant's Br. at 10. However, Barnett does not specifically state what issues of material fact required a full evidentiary hearing. He also did not submit affidavits that would have supported his claims of ineffective assistance of trial counsel and appellate counsel. For these reasons, Barnett has not shown how an evidentiary hearing would have aided him, and, therefore, the post-conviction court did not abuse its discretion when it ordered the parties to proceed by affidavit and without an evidentiary hearing. See Smith, 822 N.E.2d at 201.

Barnett has not met his burden of establishing that his trial counsel and appellate counsel were ineffective.

[13] Barnett claims that the post-conviction court erred when it concluded that he was not subjected to ineffective assistance of trial counsel and appellate counsel. “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (citing Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)).

When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, “the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, “the defendant must show prejudice: 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. (citing Strickland, 466 U.S. at 694).

Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

[14] First, we address Barnett's claims concerning his trial counsel. In his brief, Barnett claims that his trial counsel was ineffective for failing “to object to the admission of testimony not supported by actual crimes lab report.” Appellant's Br. at 11. He argues that if counsel had objected to the nurse examiner's testimony, “he could of [sic] put into question the victim credibility which could have been grounds for impeachment.” Id. Barnett also claims that if his trial counsel had objected to the nurse examiner's medical report he could have impeached multiple witnesses. Id. at 12.

[15] The medical report was submitted to the post-conviction court, but Barnett did not specifically cite to the testimony he believes counsel should have objected to. See Appellant's App. Vol. 2, p. 125 (finding that Barnett did not name a specific witness or a specific witness statement that should have been excluded). He also does not specify which witnesses could have been impeached. Barnett has not provided any evidence or argument that convinces us that an objection made to the unspecified testimony would have been sustained.

[16] Barnett also argues that his trial counsel “failed to present certain DNA evidence regarding alternate suspects.” Appellant's Br. at 13. Specifically, Barnett claims that “[u]nknown DNA that was found was not even tested to determine the identity of the unknown contributor ․” Id.

[17] Barnett did not submit any evidence that other DNA evidence was available or any testimony by trial counsel via affidavit as to why counsel failed to present other DNA evidence to the jury.² And we agree with the post-conviction court that Barnett “has not shown how DNA evidence would have changed the outcome of the case. The victim testified at the trial and identified [Barnett] as the assailant.” See Appellant's App. Vol. 2, p. 126.

[18] For all of these reasons, Barnett has not met his burden of establishing that trial counsel's performance was deficient. And given the victim's identification of Barnett as her assailant at trial, we are not persuaded that counsel's performance, if Barnett could establish that it was deficient, would have prejudiced him.

[19] We now turn to Barnett's claim that his appellate counsel was ineffective. He argues that his appellate counsel should have challenged the magistrate judge's authority because he did not have the power of judicial mandate and “was not duly appointed under 33-23-5 ․” Appellant's Br. at 15. To show inadequate performance of appellate counsel, Barnett had to demonstrate, among other things, that the unraised issue was “significant and obvious from the face of the record” and a “clearly stronger” issue than the issues that were raised on direct appeal. Wilson v. State, 157 N.E.3d 1163, 1178 (Ind. 2020) (quotation marks omitted).

[20] The post-conviction court found that magistrates have the authority to carry out judicial functions. Appellant's App. Vol. 2, p. 129. The court further found that “[i]n 2007, a magistrate was permitted to carry out the functions that were conducted in the Petitioner's trial and sentencing” including entering final orders, conducting a sentencing hearing, and imposing sentence. Id. The court found that Barnett “has not provided any evidence indicating [that] the Magistrate who presided over his trial was not correctly appointed.” Id.

[21] We agree with the post-conviction court. The record lacks evidence that would show that the magistrate who presided over his trial and sentencing was not correctly appointed. Therefore, Barnett has not established that this issue was clearly stronger than the issues appellate counsel raised on direct appeal. For this reason, Barnett has not met his burden of proving that his appellate counsel was deficient.

Conclusion

[22] The post-conviction court acted within its considerable discretion when it ordered the parties to proceed by affidavit. And Barnett did not meet his burden of establishing that his trial counsel and appellate counsel were ineffective. We therefore affirm the order denying Barnett post-conviction relief.

[23] Affirmed.

FOOTNOTES

1.   The State claims that Barnett did not request a hearing after the post-conviction court ordered the parties to proceed by affidavit. After both parties filed their written submissions to the court, Barnett filed a request for a hearing. Appellant's App. Vol. 2, p. 6. Although his request was tardy, he raised the issue in the trial court, and therefore, we do not agree with the State that Barnett waived this issue for appeal.

2.   There is a reference in the victim's medical records suggesting that she and her husband engaged in sexual intercourse the night before Barnett attacked her. As the State suggests, “[i]f trial counsel had believed there was evidence of the husband's DNA from an unrelated event, it would have been reasonable for counsel to not pursue or present this evidence ․” Appellee's Br. at 19. The State's argument is speculative but it is reasonable speculation particularly in the absence of any evidence suggesting that there was DNA evidence that would have exonerated Barnett.

Mathias, Judge.

Vaidik, J., and Pyle, J., concur.