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ATTORNEYS FOR APPELLANT Susan K. Carpenter Public Defender of Indiana Thomas C. Hinesley Deputy Public Defender Kathleen Cleary Deputy Public Defender Laura L. Volk Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana James B. Martin Deputy Attorney General Stephen R. Creason Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 15S00-0512-PD-617 TOMMY PRUITT,

In the

Mar 31 2009, 2:26 pm

CLERK

Appellant (Petitioner below), v. STATE OF INDIANA, Appellee (Respondent below). _________________________________ Appeal from the Dearborn Circuit Court, No. 15C01-0109-CF-054 The Honorable James D. Humphrey, Judge _________________________________ On Direct Appeal From The Denial of Post-Conviction Relief _________________________________ March 31, 2009 Sullivan, Justice.

Tommy Ray Pruitt was sentenced to death for the murder of a Morgan County police officer. His conviction and sentence were upheld on direct appeal. We now affirm the post-

conviction court`s findings that Pruitt was not denied the effective assistance of trial or appellate counsel guaranteed by the Sixth Amendment, that he did not present it with newly discovered evidence that undermined confidence in his death sentence, and that his death sentence is not unconstitutional under the U.S. Supreme Court`s decision in Atkins v. Virginia prohibiting sentencing persons with mental retardation to death. Background

Our earlier opinion in this matter describes in detail the crimes of which Pruitt was convicted. See Pruitt v. State, 834 N.E.2d 90 (Ind. 2005). In brief, Pruitt shot Morgan County Sheriff`s Deputy Daniel Starnes five times on June 14, 2001, ultimately resulting in his death on July 10, 2001. Before the shooting, Officer Starnes had stopped Pruitt for erratic driving, obtained his driver`s license and registration, called the information in, and was told that a recent robbery report suggested Pruitt might be in possession of stolen weapons. As Officer Starnes approached Pruitt`s car for a second time, Pruitt emerged with a handgun and the two exchang ed gunfire. Pruitt was shot at least seven times and Starnes was struck by five shots.

The State sought the death penalty based on the fact that the victim was a law enforcement officer killed in the course of his duties. Pruitt sought to have the death penalty charge dismissed on the ground that he is an individual with mental retardation and therefore ineligible for the death penalty. The trial court denied the motion after conducting a full pre-trial hearing to determine mental retardation. A jury subsequently convicted Pruitt of murder,

attempted murder, possession of a handgun without a license, resisting law enforcement, four counts of receiving stolen property, and the lesser-included offense of aggravated battery. It recommended the death sentence and the trial court sentenced Pruitt to death for the murder and to an aggregate term of 115 years for the remaining counts. We affirmed Pruitt`s conviction and sentence on direct appeal. Pruitt, 834 N.E.2d at 98. Pruitt petitioned for post-conviction relief and now appeals the denial of that petition.

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Discussion

I For the most part, completion of Indiana`s direct appellate process closes the door to a criminal defendant`s claims of error in conviction or sentencing. However, our law allows defendants whose appeals have been rejected to raise a narrow set of claims through a petition for post-conviction relief. See Ind. Post-Conviction Rule 1(1). The scope of the relief available is limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001) (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Id.; see also Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000), cert. denied, 531 U.S. 1128 (2001).

A court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. See P

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