FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS GREGORY F. ZOELLER

Public Defender of Indiana Attorney General of Indiana

JOHN PINNOW ANN L. GOODWIN

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ASHANTI CLEMONS, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A02-1108-PC-737

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Steven J. Rubick, Judge

Cause No. 49G01-0509-PC-148898

May 9, 2012

OPINION - FOR PUBLICATION

NAJAM, Judge
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STATEMENT OF THE CASE

Ashanti Clemons appeals the post-conviction court’s denial of his amended 

petition for post-conviction relief. Clemons raises two issues for our review:

1. Whether he received ineffective assistance of trial counsel. 

2. Whether he received ineffective assistance of appellate counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts underlying Clemons’ amended petition for post-conviction relief were 

set out in his appeal from his conviction for voluntary manslaughter:

On August 30, 2005, Clemons, who lived with his mother, Letiate 

Tate (“Tate”), argued with Prentice Webster (“Webster”) in the upstairs 

hallway of Tate’s apartment building. Shortly thereafter, Webster died 

from multiple gunshot wounds. Police searched the apartment complex for 

witnesses and were told that Webster was heard saying to Clemons “get off 

of me,” Tr. p. 93, and that someone had been entering and exiting Tate’s 

apartment. A witness saw a man run into an apartment wearing a white tshirt and leave a few minutes later wearing a black shirt. Police knocked 

on Tate’s door, and when she opened it, they observed bullets, a box full of 

live ammunition rounds, and several live rounds scattered on Tate’s living 

room floor, all of which were consistent in caliber, brand, and composition 

to the fired casings. The police also observed a white t-shirt on Tate’s 

living room couch. Tate informed the police where they could find 

Clemons. When the police located Clemons, he was wearing a black shirt 

and agreed to go to the police station for questioning.

Once there, the police conducted a videotaped interview of Clemons. 

A police officer read aloud the advisement of each Miranda right to 

Clemons and then handed him the Advice of Rights/Waiver of Rights form 

(“the form”) for him to initial by each right if he understood it. Clemons 

wrote his initials next to each right. The officer then read aloud to Clemons 

the waiver of rights portion of the form and again handed him the form and 

requested that he initial by each statement to indicate his understanding. 

Clemons wrote his initials next to each statement and signed the waiver. 

During this process, the officer explained certain words and concepts from 

the form that he feared Clemons might not understand. For example, the 
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officer explained the meaning of the word “coercion” and what it meant to 

say that he would “make a statement.” Ex. p. 37-38. Clemons gave no 

indication that he did not understand what these rights meant after they 

were explained to him. During his interview with the officer, Clemons 

made certain comments indicating to the officer that he understood and was 

fully aware of his rights. For instance, Clemons stated, “You see what I’m 

saying, I mean I, like you read, read my rights, you see what I’m saying, I 

don’t have to, I’ve got the right, you see what I’m saying to stop talking at 

any time or whatever.” Id. at 57. Clemons also admitted to carrying a gun 

without a license and that he fired the gun.

The State charged Clemons with Count I, Voluntary Manslaughter 

as a Class A felony,[] and Count II, Carrying A Handgun Without A 

License as a Class A misdemeanor,[] which was later enhanced to a Class C 

felony due to a previous conviction. On June 1, 2005, Clemons filed a 

Motion To Suppress the videotaped statements, which was denied 

following a hearing. At the conclusion of his trial, a jury found Clemons 

guilty of carrying a handgun without a license but was hung as to the 

voluntary manslaughter charge. Clemons pursued a direct appeal of his 

handgun conviction. On appeal, Clemons argued that the trial court abused 

its discretion when it admitted the videotape and transcript of statements he 

gave to police, claiming that the police violated his Fifth Amendment right 

to counsel when they failed to stop the interview after he requested counsel. 

Concluding that Clemons’ procedural questions and comments about 

attorneys did not constitute an unequivocal request for an attorney, a panel 

of this Court held that the police did not violate his Fifth Amendment right 

to counsel and that therefore the trial court did not abuse its discretion when 

it admitted the evidence. See Clemons v. State, No. 49A02-0608-CR-722 

(Ind. Ct. App. May 10, 2007), trans. denied [“Clemons I”].

During Clemons’ retrial on the voluntary manslaughter charge, 

Clemons again objected to the admission of his videotaped statements on 

the basis that he did not knowingly and voluntarily waive his right to 

counsel. The trial court denied Clemons’ objection, stating that the totality 

of the circumstances indicated that Clemons “freely and voluntarily waived 

his rights and that he did have sufficient comprehension and understanding 

to knowingly waive his rights.” Tr. p. 168. At the conclusion of his retrial, 

the jury found Clemons guilty of voluntary manslaughter. 

Clemons v. State, No. 49A02-0703-CR-319, at *1-*2 (Ind. Ct. App. Dec. 31, 2007) 

(“Clemons II”). We affirmed Clemons’ voluntary manslaughter conviction, id. at *6, and 

Clemons did not seek transfer.
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On July 15, 2008, Clemons filed a pro se petition for post-conviction relief. On 

October 3, appointed counsel filed an amended petition for post-conviction relief. On 

September 14 and November 16, 2010, the post-conviction court held a hearing on the 

amended petition. And on July 20, 2011, the trial court denied post-conviction relief. 

Clemons now appeals. 

DISCUSSION AND DECISION

Standard of Review

In post-conviction appeals, our standard of review is well established:

[T]he petitioner bears the burden of establishing grounds for relief by a 

preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. 

State, 881 N.E.2d 639, 643 (Ind. 2008). When appealing the denial of postconviction relief, the petitioner stands in the position of one appealing from 

a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will 

not reverse the judgment unless the petitioner shows that the evidence as a 

whole leads unerringly and unmistakably to a conclusion opposite that 

reached by the post-conviction court. Id. at 643-44. Further, the postconviction court in this case made findings of fact and conclusions of law 

in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a 

post-conviction court’s findings and judgment only upon a showing of clear 

error, which is that which leaves us with a definite and firm conviction that 

a mistake has been made. Id. at 644. The post-conviction court is the sole 

judge of the weight of the evidence and the credibility of the witnesses. 

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We accept findings of 

fact unless clearly erroneous, but we accord no deference to conclusions of 

law. Id.

Taylor v. State, 929 N.E.2d 912, 917 (Ind. Ct. App. 2010), trans. denied.

Clemons’ request for post-conviction relief is premised on his contentions that he 

was denied the effective assistance of trial and appellate counsel in violation of the Sixth 

Amendment to the United States Constitution. A claim of ineffective assistance of 

counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984). 
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First, 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. Id. at 687-88. Second, 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. at 694.

Issue One: Effective Assistance of Trial Counsel

Clemons first contends that he was denied the effective assistance of trial counsel, 

Brian Lamar, because Lamar conceded that Clemons’ request for counsel during 

interrogation was equivocal and because counsel did not obtain school records before the 

first trial as proof of Clemons’ low intellect and inability to waive his Miranda rights. 

We address each contention in turn. 

We first consider Clemons’ claim regarding Lamar’s decision to concede at the 

first trial’s suppression hearing that Clemons’ request for counsel during his post-arrest 

interrogation was equivocal. During his post-arrest interrogation, Clemons stated:

[Detective]: You’re 27 years old. I want to express how much of a man 

you were here to us today. How truthful and honest you were 

here to us today, I want to be able to express that.

[Clemons]: Oh you’re going to be able to express it, only thing I, I just 

want my momma sitting right here, you know what I’m 

saying can I have somebody sitting here with me though?

[Detective]: I, I understand that . . .

[Clemons]: That, that’s all I’m asking, I mean I ain’t asking saying [sic] I 

want, I want to talk to my lawyer. I ain’t said none of that.

[Detective]: I know.

[Clemons]: You see what I’m saying, I mean I, like you read, read my 

rights, you see what I’m saying, I don’t have to, I’ve got the 

right, you see what I’m saying to stop talking at any time or 

whatever.
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[Detective]: Exactly.

[Clemons]: You see what I’m saying, ask for a lawyer or something like 

that, you see what I’m saying. Hey look could I still have a 

lawyer? Sit here and talk to me right now?

[Detective]: I’m sorry what?

[Clemons]: If, you know what I’m saying I don’t have a paid lawyer 

could I still have a, you all said I could have a lawyer or 

somebody come talk to me right now, sit here while I . . . 

[Detective]: As I stated at any time you can have a lawyer present when 

talking to us. Okay. Now . . . 

[Clemons]: even when it’s paid or not?

[Detective]: A lawyer is not going to let you talk to us. But if you want 

one, we’ll walk out of here right now and it’s all yours. You 

know. If you do, but what you think you need to do [sic]. I 

will not violate your civil rights. I’ve made a promise to your 

mother and I’m going to stand up to the promise. I mean it 

looks like this guy got shot through the leg and shot through 

the arm and got hit in the neck. 

[Clemons]: Let me see.

Clemons I Exhibits at 203, Clemons II Exhibits at 56-57. Again, Clemons argues that his 

trial counsel’s performance was ineffective because Lamar conceded that Clemons’ 

request for counsel was equivocal during his post-arrest interview. 

We initially consider the State’s brief argument that, under the law of the case 

doctrine, we are bound by the prior determination that Clemons “did not [unequivocally] 

invoke his right to counsel.” Appellee’s Brief at 14. The law of the case doctrine “is a 

discretionary tool by which appellate courts decline to revisit legal issues already 

determined on appeal in the same case and on substantially the same facts.” Godby v. 

Whitehead, 837 N.E.2d 146, 152 (Ind. Ct. App. 2005) (citation omitted), trans. denied. 

To invoke the law of the case doctrine, the matters decided in the prior appeal clearly 

must appear to be the only possible construction of an opinion, and questions not 

conclusively decided in the prior appeal do not become the law of the case. Id. (citation 
7

omitted). The doctrine is based upon the sound policy that once an issue is litigated and 

decided, that should be the end of the matter. Id. (citation omitted). 

Here, the State asserts only that Clemons “may not make a claim of prejudice that 

contravenes” our prior determinations in the two direct appeals that Clemons’ request for 

an attorney was equivocal. Appellee’s Brief at 14. The State is correct that we 

determined in Clemons’ direct appeal from his handgun conviction that his request for 

counsel was equivocal. See Clemons I, No. 49A02-0608-CR-722, slip op. at *2. 

In his petition for post-conviction relief and here, Clemons argues that his trial 

counsel was ineffective for conceding that his post-arrest request for an attorney was 

equivocal. But a review of the transcript of Clemons’ post-arrest interview with the 

detectives shows that Clemons did not clearly and unequivocally request the assistance of 

counsel. We agree with this court’s conclusion in the direct appeal from the handgun 

charge that 

his statements indicate he understood he had signed the waiver of rights 

form prior to speaking with the officers and he understood the police had to 

stop questioning him if he requested counsel. His questions regarding 

whether he could obtain counsel were procedural questions that were not an 

unequivocal request for counsel.

Id. at *2. As such, Clemons cannot show that his trial counsel performed deficiently 

when he correctly conceded this point. 

Clemons next contends that his trial counsel was ineffective for failing to 

introduce certain evidence at the first suppression hearing in order to show that Clemons’ 

waiver of Miranda rights was not knowing and voluntary. Specifically, trial counsel did 

not offer into evidence at the first suppression hearing school records showing that 
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Clemons has a low IQ. Clemons has not shown that he was prejudiced by trial counsel’s 

failure to obtain and offer Clemons’ childhood school records. 

At the post-conviction hearing, Lamar testified that he had attempted to obtain 

Clemons’ school records before the first trial but was unsuccessful. In particular, 

Clemons’ mother had claimed to have the records but was unable to find them. Lamar 

then instructed one of his investigators to obtain the records from the school but was 

finally able to get them shortly before the second trial when Clemons’ mother personally 

delivered a consent form to the school. Lamar then offered the school records into 

evidence at the voluntary manslaughter retrial. The records showed that Clemons, who 

was twenty-seven years old at the time of his arrest, had an IQ of 74 when he was eleven 

years old. 

The evidence shows that Lamar took steps to obtain Clemons’ school records in 

advance of the first trial and was unsuccessful through no fault of his own. Further, the 

same trial judge presided over both trials, and even after the trial court reviewed such 

records at the second trial’s suppression hearing, the court found that Clemons’ waiver of 

his Fifth Amendment rights was knowing and voluntary. On these facts, Clemons has not 

shown that Lamar’s performance was deficient. 

Issue Two: Appellate Counsel

Clemons also contends that he was denied effective assistance of appellate 

counsel, Julie Slaughter. Specifically, he asserts that Slaughter was ineffective because 

she failed to petition for transfer from this court’s decision in Clemons II affirming his 

voluntary manslaughter conviction and thereby procedurally defaulted him from seeking 
9

habeas corpus relief. He maintains that the post-conviction court erroneously relied on 

Yerden v. State, 682 N.E.2d 1283 (Ind. 1997), in finding that Clemons had not shown 

ineffective assistance of appellate counsel. We must agree.

In Yerden, a direct appeal, our supreme court considered a claim that interlocutory 

appellate counsel was ineffective for having failed to make a particular argument, to 

show how prejudice would result by newly passed rules of evidence, and to seek transfer 

to the supreme court. Applying the Strickland test, the court noted that the defendant had 

“literally provided no argument, much less any cogent argument, explaining how the 

lawyer who took the interlocutory appeal performed below prevailing norms.” Id. at 

1286. Only then did the court note in dictum that a “healthy majority of lawyers who 

lose before the Indiana Court of Appeals, for example, elect not to seek transfer. On the 

face of it, without any explanation, a lawyer who does not petition for transfer has simply 

performed according to the statistical norm.” Id. As a result, Yerden’s claim of 

ineffective assistance failed. Id. 

The opinion in Yerden is distinguishable. There the defendant did not explain 

how failing to petition for transfer constituted representation below an objective standard 

of reasonableness. On that ground, our supreme court held that the defendant had failed 

to show ineffective assistance of counsel. Id. Conversely, and as discussed in more 

detail below, Clemons has shown that, under O’Sullivan v. Boerckel, 526 U.S. 838 

(1999), the failure to seek review from the highest appellate court of the state may result 

in procedural default of a federal habeas claim and, therefore, could constitute 

performance below that standard. Thus, Yerden is inapposite, and we are left to 
10

determine whether Clemons has shown that his appellate counsel was ineffective in this 

case.

Clemons correctly observes that a defendant must exhaust all state court remedies, 

including a request for discretionary review by a state court of last resort, in order to 

preserve his right to request federal habeas corpus relief. The Supreme Court has held 

that,

[b]efore a federal court may grant habeas relief to a state prisoner, the 

prisoner must exhaust his remedies in state court. In other words, the state 

prisoner must give the state courts an opportunity to act on his claims 

before he presents those claims to a federal court in a habeas petition. The 

exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 29 

L. Ed. 868, 6 S. Ct. 734 (1886), is now codified at 28 U.S.C. § 2254(b)(1) 

1994 ed., Supp. III).

Boerckel, 526 U.S. at 842. The exhaustion doctrine, codified at 28 U.S.C. § 2254

provides in part that an 

application for writ of habeas corpus on behalf of a person in custody 

pursuant to a judgment of a State court shall not be granted unless it 

appears that—

(A) the applicant has exhausted the remedies available in the court of the 

State; or 

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the 

rights of the applicant.

28 U.S.C. § 2254(b)(1). A habeas petitioner “shall not be deemed to have exhausted the 

remedies available in the courts of the State . . . if he has the right under the law of the 

State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). 

“The exhaustion requirement is satisfied if the federal issue has been properly presented 
11

to the highest state court, either by direct review of the conviction or in a post-conviction 

attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

Here, again, following the direct appeal of Clemons’ voluntary manslaughter 

conviction, his appellate counsel did not petition for transfer. Clemons argues that, as a 

result, he is prevented from exhausting his state remedies by having the supreme court 

consider whether his Fifth Amendment right to counsel was violated during his postarrest interrogation. Clemons is incorrect. 

A petitioner’s failure to exhaust his claims properly ripens into a procedural 

default once state remedies are no longer available. Miller v. Danforth, 2012 U.S. Dist. 

LEXIS 30017, at *16 n.6 (S.D. Ga. March 6, 2012) (citing McNair v. Campbell, 416 F.3d 

1291, 1305 (11th Cir. 2005)). But state remedies are yet available to Clemons regarding 

his Fifth Amendment claim. Specifically, if Clemons were to petition for transfer from 

the present post-conviction decision, the alleged denial of his Fifth Amendment right to 

counsel would be before the Indiana Supreme Court when it considers the issues 

Clemons has raised in this appeal. Therefore, Clemons has not been denied the 

opportunity to exhaust his state remedies regarding his alleged denial of the Fifth 

Amendment right to counsel. As such, his right to seek habeas review has not been 

procedurally defaulted, and, therefore, Clemons has not shown ineffective assistance by 

his appellate counsel. 

Conclusion

Clemons has not shown that his trial counsel was ineffective for conceding at his 

first trial that his post-arrest request for counsel was equivocal. Nor has he shown 
12

ineffectiveness when his trial counsel, despite investigation, was unable to secure and 

offer into evidence Clemons’ sixteen-year-old schools records as evidence of his low IQ 

and, therefore, his purported inability to knowingly waive his right to counsel. Finally, 

Clemons has not demonstrated that his appellate counsel was ineffective for failing to file 

a petition to transfer from his voluntary manslaughter conviction. Because he may still 

seek review by the Indiana Supreme Court by appealing the instant decision, Clemons 

has not been procedurally defaulted. As such, he has not demonstrated that his appellate 

counsel’s representation was deficient. We affirm the denial of Clemons’ amended 

petition for post-conviction relief.

Affirmed. 

ROBB, C.J., and VAIDIK, J., concur.