May, J.
Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel’s assistance was ineffective and his petition is not barred by laches, we reverse and remand.
Facts and Procedural History
Humphrey was convicted of murder in 1996. …
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In his direct appeal, Humphrey argued the trial court abused its discretion when it admitted into evidence Brooks’ statement regarding Humphrey’s participation in the murder and erred when it did not admonish the jury to consider the statement for impeachment purposes only. Our Indiana Supreme Court held Brooks’ prior inconsistent statement was admissible for impeachment and, regarding the admonition, “had a proper objection been lodged to the instruction, the court would have been required to entertain it.” … Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind. 1997).
On June 6, 2012, Humphrey filed a pro se petition for post-conviction relief and requested counsel. On March 14, 2014, Humphrey filed, via counsel, an amended petition for post-conviction relief, arguing his trial counsel was ineffective because 1) he did not object to the admission of Brooks’ pre-trial statement on the correct grounds; 2) he did not request an admonition based on the admission of Brooks’ pre-trial statement; 3) he did not object to the court’s final instruction on prior inconsistent statements; 4) he “erroneously endorsed,” (App. at 29), the court’s instruction regarding prior inconsistent statements; and 5) he did not tender a correct instruction on prior inconsistent statements.
The post-conviction court held evidentiary hearings on Humphrey’s petition on November 10, 2014, and December 22, 2014. On August 6, 2015, it denied Humphrey’s petition, finding Humphrey’s trial counsel was not ineffective.
Discussion and Decision
Post-conviction proceedings are not “super appeals”; rather, they afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). …
I. Laches
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Because the State had the burden of proving laches as an affirmative defense, the applicable standard of review requires that we affirm unless we find the judgment clearly erroneous. Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001). …
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As there was probative evidence to permit a determination Humphrey did not know post-conviction remedies were available to him, the State did not prove Humphrey’s delay was unreasonable. … As we cannot find clear error, Humphrey’s petition for post-conviction relief is not barred by laches.
II. Deficient Performance
To succeed on a claim of ineffective assistance of counsel, a petitioner must show not only that his trial counsel’s representation fell below an objective standard of reasonableness, but also that counsel’s errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), reh’g denied, cert. denied. …
Humphrey’s counsel was deficient for not asking that the jury be correctly instructed that Brooks’ unsworn statement could be considered only for impeachment, for not objecting to the trial court’s incorrect instruction, for not tendering a correct instruction, and for erroneously telling the jury in closing argument that the statement could be used in deciding whether Humphrey was guilty.
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III. Prejudice
To succeed on a claim of ineffective assistance of counsel, a petitioner must show counsel’s errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007), cert. denied. …
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… Humphrey was prejudiced by counsel’s errors that allowed the jury to consider as substantive evidence the only evidence that identified Humphrey as the shooter.
Conclusion
As Humphrey’s counsel’s performance was deficient and the deficiencies prejudiced Humphrey, we reverse the denial of Humphrey’s petition for post-conviction relief and remand for a new trial.
Reversed and remanded.
Najam, J., and Riley, J., concur.