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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. ATTORNEYS FOR APPELLANT: ROBERT L. JONES, JR. DREW R. HAASE, Legal Intern MICHAEL S. LAWLER, Legal Intern Notre Dame Legal Aid Clinic South Bend, Indiana

FILED
Feb 15 2010, 8:19 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana STEPHEN R. CREASON Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
OBADYAH BEN-YISRAYL, f/k/a CHRISTOPHER PETERSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

No. 45A03-0903-PC-123

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas P. Stefaniak, Jr., Judge Cause No. 45G04-9101-CF-14

February 15, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Obadyah Ben-Yisrayl, formerly known as Christopher Dwayne Peterson, appeals the trial courts denial of his successive motion for post-conviction relief. Ben-Yisrayl raises three issues, which we revise and restate as whether the post-conviction court erred in denying Ben-Yisrayls successive petition for post-conviction relief. We affirm. The relevant facts as set forth in Ben-Yisrayls direct appeal in this case follow: [O]n January 28, 1991, [Ben-Yisrayl] robbed the victim, Ronald Nitsch, as Nitsch attempted to make a bank deposit. During the course of the robbery, [Ben-Yisrayl] shot Nitsch in the head, severely injuring him. [Ben-Yisrayl] was arrested and charged with the crimes; he confessed while in police detention. The first trial of this action commenced on March 8, 1992, at which time [Ben-Yisrayl] was represented by attorney Charles Graddick. After the jury was selected and sworn, the State informed the trial court that Graddick had a conflict of interest because a member of Graddicks firm had interviewed another individual involved in the same crime. Thereafter, Graddick withdrew and the trial court granted [Ben-Yisrayls] motion for a mistrial. After a second jury was impaneled and sworn, [Ben-Yisrayl] was convicted of attempted murder[, a class A felony,] and robbery [as a class B felony]. Peterson v. State, 653 N.E.2d 1022, 1023 (Ind. Ct. App. 1995), trans. denied. The crimes in this case were allegedly part of a shotgun shooting spree in northwestern Indiana involving at least ten victims. See Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind. 2000), rehg denied, cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001). In two other separate cases, Ben-Yisrayl was convicted for the murders of four other persons. See id. First, Ben-Yisrayl was convicted for the murder of a motel clerk and a gas station attendant in Porter County on December 15 and 16, 1990. See Ben-Yisrayl v. State, 690 N.E.2d 1141, 1144 (Ind. 1997), rehg denied, cert. denied, 525 U.S. 1108, 119 S. Ct. 877 2

(1999) (the "Porter County Double Murder Case"). A Porter County motel clerk was killed as the result of a shotgun wound to the neck and $467.00 was missing from the cash register. Id. The next day, an attendant at a nearby gas station was killed by a shotgun blast to the head, and $327.55 was missing. Id. After his arrest, Ben-Yisrayl confessed to the shotgun murders. Id. at 1152. Ben-Yisrayl was sentenced to death for the Porter County murders. Ben-Yisrayl v. State, 753 N.E.2d 649, 652 (Ind. 2001), rehg denied, cert. denied, 536 U.S. 918, 122 S. Ct. 2382 (2002). Second, Ben-Yisrayl was convicted for the murder of two brothers in Lake County, Indiana, on the afternoon of December 18, 1990. See Peterson v. State, 674 N.E.2d 528, 531-532 (Ind. 1996), rehg denied, cert. denied, 522 U.S. 1078, 118 S. Ct. 858 (1998) (the "Lake County Double Murder Case"). The two victims were found dead inside their tailor shop from shotgun wounds to the head. Id. at 532. A sawed-off shotgun later recovered from Ben-Yisrayls apartment was found to have fired a spent casing recovered at the crime scene. Id. Ben-Yisrayl also confessed to the two shotgun murders in Lake County. Id. at 535. Ben-Yisrayl was sentenced to death for the Lake County murders. Id. At the time the trial court sentenced Ben-Yisrayl in this case, he had been convicted in the Porter County Double Murder Case and the Lake County Double Murder Case. The trial court found the following aggravating circumstances in sentencing BenYisrayl: (1) that Ben-Yisrayl had been convicted of two murders in the Porter County Double Murder Case; (2) that he had been convicted of two murders in the Lake County Double Murder Case; and (3) that "the murders, according to Ben-Yisrayls statement, 3

were racially motivated and there is a high risk that [Ben-Yisrayl] will commit other murders." Amended Appellants Appendix at 78. The trial court also found the

following mitigating factors: (1) that Ben-Yisrayl graduated from high school; (2) that he had been gainfully employed prior to entering the U.S. Marine Corps.; (3) that he had "served between two and three years in the [U.S.] Marine Corps. but was AWOL at the time of the commission of this crime;" and (4) that he "had no prior criminal record until he returned home AWOL from the [U.S.] Marine Corps[.] in 1989." Id. at 77-78. The trial court found that "the mitigating factors are overwhelmingly outweighed by the aggravating factors . . . ." Id. at 78. The trial court sentenced Ben-Yisrayl to fifty years for attempted murder and twenty years for robbery as a class B felony, to be served consecutively.1 This court affirmed Ben-Yisrayls convictions in this case on direct appeal. See Peterson, 653 N.E.2d at 1025. Ben-Yisrayl also appealed his convictions in the Porter County Double Murder Case and the Lake County Double Murder Case. In the Porter County Double Murder Case, the Indiana Supreme Court affirmed Ben-Yisrayls convictions and sentence on direct appeal and affirmed the denial of his petition for post-conviction relief. See BenAt the sentencing hearing, Ben-Yisrayls counsel argued that he "was aware of an error in the Porter County case that, in all probability, will result in a reversal of that case. The Lake County case is a different story, perhaps it will be, perhaps it wont be . . . ." Transcript at 2446. Ben -Yisrayls counsel later argued that "[t]here were two trials, Your Honor. The Porter County case, the error committed by the prosecuting attorney, in closing argument, I think will be enough to reverse that case." Id. at 2448. Ben-Yisrayls counsel also argued that "it would be unreasonable to use those earlier convictions for enhancement purposes" because "theyre going to be reversed. In all likelihood, theyre going to be reversed." Id. at 2447-2448. After sentencing Ben-Yisrayl to maximum, consecutive terms for attempted murder and robbery as a class B felony, the trial court stated: "Again, Ill tell you that [Ben-Yisrayls enhanced sentence] is based on the prior convictions. If they are, in fact reversed, the Court may look at this again." Id. at 2451.
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Yisrayl, 690 N.E.2d at 1144 (affirming convictions and sentence on direct appeal); BenYisrayl, 753 N.E.2d at 662 (affirming denial of post-conviction relief). However, the United States District Court for the Northern District of Indiana granted a writ of habeas corpus in part due to the prosecutors remarks during closing arguments regarding BenYisrayls failure to testify, and the Seventh Circuit of the Unites States Court of Appeals affirmed the judgment of the district court. Ben-Yisrayl v. Davis, 277 F. Supp. 2d 898, 898-907 (N.D. Ind. 2003), affirmed by 431 F.3d 1043, 1045 (7th Cir. 2005), rehg denied, rehg en banc denied. As of the briefing in this case, a retrial in the Porter County Double Murder Case has not occurred. In the Lake County Double Murder Case, the Indiana Supreme Court affirmed Ben-Yisrayls convictions and sentence on direct appeal and the denial of his petition for post-conviction relief. See Peterson, 674 N.E.2d at 532-543 (Ind. 1996) (affirming

convictions and sentence on direct appeal); Ben-Yisrayl, 729 N.E.2d at 113 (affirming the denial of post-conviction relief). Ben-Yisrayl then filed a motion for writ of habeas corpus challenging his conviction and sentence, which was denied. Ben-Yisrayl v. Davis, 245 F. Supp. 2d 960 (N.D. Ind. 2002). While his appeal from that decision was pending, the Indiana Supreme Court issued Saylor v. Indiana, 808 N.E.2d 646 (Ind. 2004), ruling that a defendant could not be sentenced to death over a jurys recommendation to the contrary. See Ben-Yisrayl v. Buss, 540 F.3d 542, 545 (7th Cir. 2008), rehg denied, rehg en banc denied, cert. denied, 129 S. Ct. 2890 (2009). Ben-Yisrayl then filed a new

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petition for post-conviction relief, which the Indiana Supreme Court granted, vacating his death sentence.2 See id. On re-sentencing, Ben-Yisrayl received two consecutive sixty-year terms. Id. Ben-Yisrayl appealed his sentence, arguing that the trial court erroneously relied on his criminal history as an aggravating circumstance. See Ben-Yisrayl v. State, No. 45A050501-CR-22, slip op. at 7-8 (Ind. Ct. App. Dec. 13, 2005), rehg denied, trans. denied. Specifically, Ben-Yisrayl claimed that the Northern Districts grant of his petition for writ of habeas corpus in the Porter County Double Murder Case meant that the convictions in that case could no longer be relied upon as criminal history aggravators. Id. at 8. This court affirmed Ben-Yisrayls re-sentencing, holding that the trial court properly relied on the Porter County convictions when re-sentencing Ben-Yisrayl as those convictions remained valid because the State had appealed the Northern Districts decision and the Seventh Circuit Court of Appeals had not yet issued its decision.3 Id. (affirming re-sentencing). The Seventh Circuit of the Unites States Court of Appeals denied federal habeas corpus relief and affirmed Ben-Yisrayls re-sentencing. See BenYisrayl, 540 F.3d at 555.

After the Indiana Supreme Court vacated Ben-Yisrayls death sentence, the Seventh Circuit Court of Appeals dismissed Ben-Yisrayls appeal of the denial of his motion for writ of habeas corpus for lack of jurisdiction, but noted that Ben-Yisrayl could refile his habeas petition after re-sentencing and after he exhausted his state court remedies. See Ben-Yisrayl, 540 F.3d at 545.
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The court also stated that, "even assuming, arguendo, that the Porter County murder convictions are invalid, Ben-Yisrayls enhanced sentences are proper." See Ben-Yisrayl, No. 45A05-0501-CR-22, slip op. at 8. The court noted that the Porter County convictions were only two of three aggravating circumstances found by the trial court. Id.
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In this case, Ben-Yisrayl filed his first petition for post-conviction relief in April 1997 challenging the effectiveness of his trial and appellate counsel, which was denied in May 2000. This court affirmed the denial of Ben-Yisrayls petition. See Ben-Yisrayl v. State, No. 45A03-0006-PC-218 (Ind. Ct. App. March 20, 2001), trans. denied. BenYisrayl petitioned this court to grant him leave to file a successive petition for postconviction relief, which this court granted on March 31, 2008. In his successive petition for post-conviction relief, Ben-Yisrayl alleged that "[b]ecause [Ben-Yisrayls] sentence in this case was enhanced by the prior convictions in Porter County, which have since been reversed, [Ben-Yisrayls] sentence is based on inaccurate information and must be vacated." Amended Appellants Appendix at 110. Ben-Yisrayl also filed a memorandum in support of his successive petition for postconviction relief, arguing in part that "a resentencing hearing is compelled in this case because it would be impossible to conclude with confidence that the sentencing judge would have imposed maximum, consecutive sentences had he not explicitly relied on the now-vacated Porter County murder convictions." Id. at 65.4 After conducting an

evidentiary hearing on Ben-Yisrayls successive petition on November 6, 2008, the postconviction court denied the petition on February 29, 2009. In its denial, the postconviction court stated that it "feels confident that the trial court would have come to the same sentencing conclusion if the petitioner had stood in front of the court with only two
Ben-Yisrayl also argued that he "is entitled to a new sentencing hearing, not merely a new sentencing order" because "the sentencing judge . . . is no longer on the bench," because "the previous sentencing record is fifteen years old and therefore stale," and because Ben-Yisrayl "should be allowed to present evidence of new mitigating factors, his exemplary eighteen-year record of behavior in prison, and the changes in his life during that period that make him unlikely to commit another crime." Amended Appellants Appendix at 68-69.
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prior murder convictions, rather than four prior murder convictions on the petitioners record at the time." Id. at 24. Ben-Yisrayl now appeals the denial of his successive petition for post-conviction relief. Before discussing Ben-Yisrayls arguments, we note the general standard under which we review a post-conviction courts denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). "A post-conviction courts findings and judgment will be reversed only upon a showing of clear error

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