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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE: EUGENE BOWERS Carlisle, Indiana

FILED
May 16 2011, 10:10 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
EUGENE BOWERS, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 49A04-1003-PC-274

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kurt M. Eisgruber, Judge Cause No. CR87-245A

May 16, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Eugene Bowers appeals the denial of his request for post-conviction relief, and raises three issues for our consideration: 1. Whether Bowers' trial counsel was ineffective for failing to advise him of an alleged deficiency in the probable cause affidavit; 2. Whether the post-conviction court erred when it denied Bowers' request to certify an issue for interlocutory appeal; and 3. Whether the post-conviction court abused its discretion when it denied Bowers' request to subpoena three witnesses. We affirm. FACTS AND PROCEDURAL HISTORY Bowers was sentenced to six years imprisonment on May 5, 1988, for Class B felony burglary. In 2006, Bowers filed a petition for post-conviction relief. He amended his petition in 2009, and, after a hearing, the post-conviction court denied his petition in 2010. DISCUSSION AND DECISION Post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are civil in nature, the petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party appealing a negative post-conviction judgment must establish that the evidence is without conflict and, as a whole, unmistakenly and unerringly points to a conclusion contrary to that 2

reached by the post-conviction court. Id. Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the court's legal conclusions, but "the findings and judgment will be reversed only upon a showing of clear error

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