Court of Appeals of Indiana | Memorandum Decision No. 45A03-1311-PC-507 | October 14, 2015 Page 1 of 15

MEMORANDUM DECISION

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

Khalid M. Jackson-Bey

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Khalid M. Jackson-Bey,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 14, 2015

Court of Appeals Case No. 

45A03-1311-PC-507

Appeal from the Lake Superior 

Court

The Honorable Natalie Bokota, 

Judge

Trial Court Cause No. 

45G04-1106-PC-7

Mathias, Judge.

[1] Kalid Malik Jackson-Bey (“Jackson-Bey”) filed a petition for post-conviction 

relief in Lake Superior Court, and the court denied the petition. Jackson-Bey 
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appeals and presents six issues for our review, which we consolidate and restate 

as: (1) whether the post-conviction court properly concluded that Jackson-Bey 

was not denied the effective assistance of trial counsel; and (2) whether the 

State presented evidence sufficient to support Jackson-Bey’s convictions. 

[2] We affirm. 

Facts and Procedural History

[3] The facts underlying Jackson-Bey’s convictions were set forth in our decision 

on direct appeal as follows: 

On the morning of January 6, 2008, Jorge Molina was outside 

his house working on his car when a black man approached him 

quickly. The man displayed a gun and said he needed money. 

Specifically, he said “if he didn’t get any [money], he would 

shoot [Molina] right there.” The man then put the gun straight in 

Molina’s face. Molina said he did not have any money on him 

because his wallet was inside the house, where his wife and 

daughter were sleeping. The man then held his gun on Molina, 

pulled on his coat, and led him into the house. Once the man left 

the house, Molina called 911. Molina identified the man from a 

photo array and at trial as Jackson-Bey.

Before Molina identified Jackson-Bey from the photo array, on 

January 8, 2008, Darrel Kilbourne was waiting for the bus 

outside his East Chicago HUD apartment when he realized he 

forgot something inside. As Kilbourne started to unlock the door 

to the apartment building, someone came from behind him and 

stuck a gun in his ribs, demanded money, and said, “I will shoot 

you.” Kilbourne said he did not have any money and gave him 

the change from his pocket.
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Edward Serna, Kilbourne’s roommate, heard a commotion 

outside and proceeded to the door. A black man pushed 

Kilbourne inside and pointed the gun at Serna’s head. The man 

asked Serna where he lived, and Serna responded upstairs. Once 

they were inside the apartment, Serna was able to get a good look 

at the man’s face. When the man asked for Serna’s money, he 

said that he did not have any, so the man asked for Kilbourne’s 

money. Still not successful in obtaining any money, the man 

“pistol whipped” Serna on the side of his head. The man then 

ordered the men to crawl on the floor and put the gun to the side 

of Serna’s head. At this point, Kilbourne reached into his pocket 

and said that he had some money after all. However, the man 

was still upset and threatened to shoot them. Serna begged for his 

life. The man then ordered Kilbourne and Serna back downstairs 

and out of the building. Unknown to the man, a police car was in 

front of the building because someone had called 911.

East Chicago Police Department Officer Hector Rosario was 

dispatched to the apartment building for a disturbance call. He 

observed a black male exiting the building. When Officer Rosario 

summoned the man, he took off running down the alley. Officer 

Rosario chased him. He lost sight of the man between some 

houses while additional officers drove to the other side of the 

block. Eventually, Officer Rosario located the man underneath a 

front porch and pulled him out. He also located a handgun 

underneath the porch. Before placing the man inside a patrol car 

to be transported to the police station, Officer Rosario patted him 

down and found a bag of marijuana. Serna saw the man at the 

patrol car and knew that the officers had found the right guy. 

Serna later went to the police station and identified Jackson-Bey

from a photo array.

Jackson-Bey v. State, No. 45A04-0911-CR-646, 2010 WL 2885966, slip op. at 2-4

(Ind. Ct. App. July 23, 2010), trans. denied. 
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[4] As a result, the State charged Jackson-Bey as follows: with regard to the 

January 6 incident involving Molina, Class B felony robbery and Class B felony 

criminal confinement; and with regard to the January 8 incident involving 

Kilbourne and Serna, Class B felony robbery, two counts of Class B felony 

criminal confinement, Class C felony battery, Class A misdemeanor resisting 

law enforcement, and Class A misdemeanor possession of marijuana. See id., 

slip op. at 4. 

[5] The trial court bifurcated the charges based on the January 6 and 8 incidents. 

With regard to the January 6 incident, one jury found Jackson-Bey guilty of 

criminal confinement but not guilty of robbery. A separate jury found JacksonBey guilty as charged with regard to the January 8 incident. 

[6] In sentencing Jackson-Bey, the trial court noted that Jackson-Bey had been

convicted of a November 2007 murder and robbery in Cause No. 45G04-0810-

MR-8 (“Cause No. MR-8”), after he was in custody for the January 2008 

crimes in this case. In Cause No. MR-8, Jackson-Bey was sentenced to an 

aggregate term of sixty-five years. See Jackson-Bey v. State, No. 45A03-0908-CR365, 2010 WL 909092 (Ind. Ct. App. Mar. 15, 2010). The trial court in the 

current case sentenced Jackson-Bey to ten years on each of his four Class B 

felonies, four years on his Class C felony, and one year on each of his two Class 

A misdemeanors. The court ordered Jackson-Bey’s ten-year sentence for the 

robbery of Kilbourne to be served consecutive to his sixty-five-year sentence for 

murder and robbery in Cause No. MR-8. The court ordered Jackson-Bey’s oneyear sentences for the Class A misdemeanors to be served concurrently but the 
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remainder of his sentences to be served consecutively, for an aggregate term of 

forty-four years in this case. 

[7] On direct appeal, Jackson-Bey argued that the evidence was insufficient to 

establish his identity as the culprit and that the trial court abused its discretion 

in ordering one of his sentences to be served consecutively to the sixty-five-year

sentence in Cause No. MR-8. A panel of this court held that sufficient evidence 

established Jackson-Bey’s identity as the culprit and that the trial court did not 

abuse its discretion, thereby affirming Jackson-Bey’s convictions and sentence. 

See Jackson-Bey, No. 45A04-0911-CR-646, slip op. at 8-9. 

[8] Jackson-Bey filed a pro se petition for post-conviction relief on June 2, 2011, 

and an amended petition on October 15, 2012. The post-conviction court held 

evidentiary hearings on Jackson-Bey’s petition on December 19, 2012, and 

March 15, 2013. Both parties then submitted proposed findings of fact and 

conclusions of law to the court. The post-conviction court entered findings of 

fact and conclusions of law on October 29, 2013, denying Jackson-Bey’s 

petition. Jackson-Bey filed a notice of appeal on November 22, 2013. After 

numerous procedural delays, this case was finally fully briefed and submitted to 

this court. 

Post-Conviction Standard of Review

[9] In addressing Jackson-Bey’s claims, it bears repeating that post-conviction 

proceedings are not “super appeals” through which convicted persons can raise 

issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 
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389, 391 (Ind. 2002). Post-conviction proceedings instead 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). The 

post-conviction petitioner bears the burden of establishing grounds for relief by 

a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 

2008). Thus, on appeal from the denial of post-conviction relief, the petitioner 

appeals from a negative judgment. Id. To prevail on appeal from the denial of 

post-conviction relief, the petitioner must show that the evidence as a whole 

leads unerringly and unmistakably to a conclusion opposite than that reached

by the post-conviction court. Id. at 643-44. 

[10] 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 

must determine if the court’s findings are sufficient to support its judgment. 

Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 

N.E.2d 962. Although we do not defer to the post-conviction court’s legal 

conclusions, we review the post-conviction court’s factual findings under a 

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or 

judge the credibility of witnesses, and we will consider only the probative 

evidence and reasonable inferences flowing therefrom that support the postconviction court’s decision. Id. 

Ineffective Assistance of Trial Counsel

[11] Our supreme court has summarized the law regarding claims of ineffective 

assistance of trial counsel as follows: 
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A defendant claiming a violation of the right to effective 

assistance of counsel must establish the two components set forth 

in Strickland v. Washington, 466 U.S. 668 (1984). First, the 

defendant must show that counsel’s performance was deficient. 

This requires a showing that counsel’s representation fell below 

an objective standard of reasonableness, and that the errors were 

so serious that they resulted in a denial of the right to counsel 

guaranteed the defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance prejudiced 

the defense. To establish prejudice, a defendant must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

Counsel is afforded considerable discretion in choosing strategy 

and tactics, and we will accord those decisions deference. A 

strong presumption arises that counsel rendered adequate 

assistance and made all significant decisions in the exercise of 

reasonable professional judgment. The Strickland Court 

recognized that even the finest, most experienced criminal 

defense attorneys may not agree on the ideal strategy or the most 

effective way to represent a client. Isolated mistakes, poor 

strategy, inexperience, and instances of bad judgment do not 

necessarily render representation ineffective. The two prongs of 

the Strickland test are separate and independent inquiries. Thus, 

[i]f it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice . . . that course should be 

followed. 

Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations 

omitted). Jackson-Bey argues that his trial counsel was ineffective for failing to 

do several things. We address each in turn. 
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A. Failure to Make an Opening Statement

[12] Jackson-Bey first argues that his trial counsel was constitutionally ineffective for 

failing to make an opening statement to the jury. Jackson-Bey’s trial counsel 

testified at the post-conviction hearing that he could not remember any 

particular reason for not making an opening statement at either of JacksonBey’s trials. He did say, however, that he usually chose not to make opening 

statements if the State’s case was fairly strong. 

[13] Jackson-Bey now argues that there could be no legitimate reason to choose not

to make an opening statement. However, our supreme court has long held that 

“[i]t is by no means unusual for criminal defense counsel to waive opening 

argument for a wide variety of reasons.” Roche v. State, 690 N.E.2d 1115, 1124 

(Ind. 1997). Therefore, the court has “regularly held that the decision not to 

make an opening statement is a matter of trial strategy and will not support an 

ineffective assistance of counsel claim.” Id. 

[14] Thus, Jackson-Bey has not demonstrated that the post-conviction court clearly 

erred in determining that Jackson-Bey’s trial counsel was not ineffective for 

failing to make an opening statement. 

B. Failure to Depose Witnesses

[15] Jackson-Bey next argues that his trial counsel was ineffective for failing to 

depose certain witnesses. Jackson-Bey correctly notes that a criminal defendant 

has a constitutional right to confront the witnesses against him. See Ind. Const. 

Art. 1, Sec. 13(a); U.S. Const. amend. VI. However, this does not translate into 
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an absolute obligation upon counsel to depose witnesses. Indeed, our supreme 

court has held that “[c]ounsel’s failure to interview or depose State’s witnesses 

does not, standing alone, show deficient performance. The question is what 

additional information may have been gained from further investigation and 

how the absence of that information prejudiced his case.” Williams v. State, 771 

N.E.2d 70, 74 (Ind. 2002) (citing Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 

2000)). 

[16] Here, Jackson-Bey makes the conclusory argument that deposing the witnesses 

prior to trial would have assisted his trial counsel during cross-examination. 

However, Jackson-Bey refers us to nothing in the record that would suggest that 

his trial counsel’s cross-examination of the witnesses was inadequate. 

Moreover, trial counsel testified at the post-conviction hearing that he does not 

always depose witnesses and that his choice to do so is a matter of strategy, as 

deposing a witness could preserve testimony unfavorable to his client that could 

then be used at trial. Therefore, we cannot say that the post-conviction court 

clearly erred in concluding that trial counsel was not ineffective for failing to 

depose certain witnesses. 

C. Failure to Suppress Jackson-Bey’s Confession

[17] Jackson-Bey next faults his trial counsel for failing to object to and suppress the 

incriminating statement that Jackson-Bey gave to the police. Jackson-Bey 

argues that his counsel knew that the voluntariness of his confession was an 

important issue and that counsel was also aware that his confession was “false 

and coerced.” Appellant’s Br. p. 8. Jackson-Bey contends that, had his 
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confession been challenged, it would have been suppressed, dealing a “serious, 

probably fatal blow to the State[’]s case.” Id. 

[18] The problem with Jackson-Bey’s argument, however, is that he refers to no 

evidence suggesting that his confession was false or coerced. Although the State 

bears the burden of establishing the voluntariness of a confession at trial, see 

Pruitt v. State, 834 N.E.2d 90, 114-15 (Ind. 2005), Jackson-Bey, as the postconviction petitioner, bore the burden of proving his claims for relief. See

Henley, 881 N.E.2d at 643. 

[19] Jackson-Bey’s trial counsel testified at the post-conviction hearing that he did 

not recall Jackson-Bey ever telling him that the confession was coerced, and 

when Jackson-Bey himself testified at the hearing, he offered no testimony to 

support his contention that his confession was coerced. Accordingly, the postconviction court properly concluded that Jackson-Bey had not established that 

his counsel was ineffective for failing to suppress Jackson-Bey’s statement to the 

police. 

D. Failure to Object to Prosecutor’s Allegedly False Statements

[20] Jackson-Bey next argues that his trial counsel was ineffective for failing to 

object to certain statements made by the prosecuting attorney regarding a plea 

offer the State sent to Jackson-Bey. Specifically, the prosecuting attorney stated

that the State offered a plea with consecutive sentencing and that Jackson-Bey’s 

trial counsel asked that this statement be reduced to writing, which the 
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prosecuting attorney did. However, the prosecuting attorney subsequently 

stated that he did not reduce the plea to writing or draft a plea. Id. at 10. 

[21] Jackson-Bey now claims that his trial counsel should have objected to this 

statement because his trial counsel forwarded to him a letter from the State 

containing a plea offer. Thus, Jackson-Bey argues that the prosecuting 

attorney’s statement that the plea was never reduced to writing constituted 

“false testimony” to which his trial counsel should have objected. 

[22] We first note that the statements of the prosecuting attorney, even if false, were 

not testimony. See Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004) (noting 

that statements of counsel are not evidence). More importantly, it does not 

appear that the statements by the prosecuting attorney were false. 

[23] Jackson-Bey’s trial counsel discussed a possible plea deal with the prosecuting 

attorney. At the request of Jackson-Bey’s trial counsel, this plea offer was 

reduced to writing on September 24, 2008, in a letter sent by the State to 

Jackson-Bey’s trial counsel, which stated in relevant part:

I am writing to follow up on our phone conversation today 

regarding [Jackson-Bey]. The terms of the plea the State has 

offered are as follows: plead to Counts I and II, ten (10) years on 

each count to run concurrent with each other and consecutive to 

the sentence in [Cause No. MR-08]. We are set for trial on 

October 5, 2009. Hopefully, we can dispose of this matter on 

Monday, September 28, 2009. After that date, the plea [offer] will 

no longer be open.
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PCR Ex. Vol., Petitioner’s Ex. 4. That same day, Jackson-Bey’s trial counsel took

this letter to Jackson-Bey in jail, along with a letter stating in relevant part: 

I came to see you today to tell you about the State’s offer. 

Enclosed is a copy of the letter I got today from the prosecutor. 

If you accept this offer, you will have to admit in court that you 

did rob the victims in both counts, and you will have to sign a 

statement that you did rob the victims. 

If you accept this offer, sign your name below that you admit 

robbing the victims, and that you will accept the State’s offer. 

Id., Petitioner’s Ex. 3.1 

[24] Although the copy of the letter submitted as evidence by Jackson-Bey indicates 

that he signed the plea offer on September 28, 2009, his trial counsel testified at 

the post-conviction hearing that Jackson-Bey never indicated to him that he was 

willing to accept the State’s plea offer. Instead, on the morning of the first trial 

on October 5, 2009, Jackson-Bey told the trial court that he was willing to 

accept the State’s plea offer. At this time, the prosecuting attorney told the trial 

court that the plea offer had expired. 

[25] In this context, it appears that the prosecuting attorney’s statements that 

Jackson-Bey now complains about were simply recounting to the trial court that 

although the plea offer had been reduced to writing, a formal plea agreement 

 

1

 The original text of this letter is in all capitals. For the sake of readability, we have used standard 

capitalization in our quotation. 
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was never reduced to writing. At most, the prosecuting attorney’s statements 

were unclear, not false. Therefore, we cannot fault Jackson-Bey’s trial counsel 

for failing to object to these statements.2 

E. Failure to Investigate or Present Alibi Defense

[26] Jackson-Bey’s last claim of ineffective assistance of trial counsel is that his 

counsel was ineffective for failing to properly investigate and present an alibi 

defense. Jackson-Bey contends that, had his counsel properly investigated his 

case, he would have discovered the existence of an alibi defense. 

[27] At the post-conviction hearing, however, Jackson-Bey never established that he 

informed his trial counsel of the possibility of an alibi defense. Instead, he 

merely established that his trial counsel knew of a woman named Cherish 

Christian (“Christian”). Further, Christian’s affidavit, which was submitted into 

evidence by Jackson-Bey at the post-conviction hearing, does not actually

establish an alibi for Jackson-Bey. The affidavit states that Christian received a

telephone call from Jackson-Bey on January 6, 2008 “at 9:00 am while he was 

in Chicago[.]” Ex. Vol., Petitioner’s Ex. 2.3 This affidavit, however, does not 

explain how Christian knew that Jackson-Bey was in Chicago when he called. 

 

2

 To the extent that Jackson-Bey’s argument is that he did intend to accept the plea offer, his trial counsel’s 

testimony contradicts this claim, and the post-conviction court was well within its discretion to believe the 

testimony of trial counsel. 

3

 As noted by the State, Christian’s affidavit is typewritten except for a portion which appears to have been 

whited-out and overwritten in pen “at 9:00 am while he was in Chicago[.]” Id. This apparent alteration does 

not instill confidence in the integrity of the affidavit. 
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Also, the post-conviction court, as the trier of fact, was under no obligation to 

credit Christian’s affidavit. Moreover, the affidavit does nothing to establish 

that Jackson-Bey informed his trial counsel of the possibility that Christian was 

an alibi witness. 

[28] Under these facts and circumstances, the post-conviction court did not clearly 

err in determining that there was “no credible evidence that Jackson-Bey was in 

Chicago, Illinois or with Ms. Christian at 9:00 a.m. on January 6, 2008.” 

Appellant’s App. p. 7. Thus, his trial counsel was not ineffective for failing to 

present an alibi defense. 

II. Free-Standing Claim of Error

[29] Amidst his claims of ineffective assistance of trial counsel, Jackson-Bey also 

argues that the State failed to introduce evidence that he was the perpetrator of 

the crimes, claiming that neither victim made an in-court identification of 

Jackson-Bey as the culprit. Jackson-Bey does not frame this question as one of 

the ineffective assistance of trial or appellate counsel; he simply claims that the 

State failed to prove that he committed the crimes. 

[30] This claim, however, may not be presented as a free-standing claim of error in a 

post-conviction proceeding. It has long been held that most free-standing claims 

of error are not available in a post-conviction proceeding because of the 

doctrines of waiver and res judicata. Timberlake, 753 N.E.2d at 597-98. That is, 

if an issue was known and available but not raised on direct appeal, the issue is 

“waived,” or more accurately, procedurally foreclosed; if an issue was raised 
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and decided on direct appeal, it is res judicata. Stephenson v. State, 864 N.E.2d 

1022, 1028 (Ind. 2007) (citing Timberlake, 753 N.E.2d at 597). Even freestanding claims of fundamental error may not be addressed in post-conviction 

proceedings. See id. at 1029. 

[31] Here, Jackson-Bey did present a claim of insufficient evidence on direct appeal, 

and this court held that sufficient evidence established that Jackson-Bey was the 

individual who committed the crimes in question. See Jackson-Bey, No. 45A04-

0911-CR-646, slip op. at 8-9. This is now res judicata and cannot be relitigated. 

See Stephenson, 864 N.E.2d at 1028 (citing Timberlake, 753 N.E.2d at 597). 

Conclusion

[32] The post-conviction court did not clearly err in concluding that Jackson-Bey 

was not denied the effective assistance of trial counsel, and Jackson-Bey’s 

freestanding claim of insufficient evidence is barred by the doctrine of res 

judicata and may not be relitigated in an appeal from the denial of a petition for 

post-conviction relief. 

[33] Affirmed. 

Baker, J., and Bailey, J., concur.