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Death By Lethal Subjection Contents Death By Lethal Subjection Obstruction Of Justice Criminal File 1 Criminal File 2 Criminal File 3 Criminal File 4 Criminal File 5 Criminal File 6
Criminal File 2 AS TO THE POST-CONVICTION PROCEEDINGS AND APPEAL THEREFROM GROUND TWENTY David T. Sholes was denied his right to due process of law, equal protection, and fair legal proceedings under the Fifth, Sixth, And Fourteenth Amendments to the United States Constitution, in his Post-Conviction proceedings, by the manner in which those proceedings were conducted, and by the manner in which his Post-Conviction counsel and Post-Conviction Appeal counsel acted or failed to act in his behalf resulting in denial of due process and fair proceedings overall. GROUND TWENTY-ONE David T. Sholes was denied due process of law, equal protection, and fair legal proceedings under the Sixth and Fourteenth Amendments to the United States Constitution and Indiana Rules Of Post-Conviction Relief, When the judge abused his discretion and conspired or engaged in a deliberate effort to deny and violate Sholes' rights and prevent him from fairly and fully presenting his facts and issues and witnesses upon Post-Conviction Proceedings. GROUND TWENTY-TWO David T. Sholes was denied due process of law, equal protection, and fair legal proceedings under the Sixth and Fourteenth Amendments to the United States Constitution, and Indiana Rules Of Post-Conviction Relief, when the judge abused his discretion and prejudicially denied Sholes and his counsel the right to Stay Proceedings to amend his petition, ready new counsel, and fully present at a hearing the amended and complete allegations and facts of his petition, particularly when such amendment would very likely have included, among others, allegations that Judge Hunt had engaged in judicial misconduct and a gross conflict of interest in previously participating simultaneously as judge in both Sholes' criminal proceedings and Civil Suit proceedings based upon the same deaths and injury, and further in that Judge Hunt wished to keep all such matters suppressed and not brought up again when he was running for reelection at the time of the Post-Conviction proceedings. GROUND TWENTY-THREE David T. Sholes was denied due process of law, equal protection, and fair legal proceedings, under the Sixth and Fourteenth Amendments to the United States Constitution, nd Indiana Rules Of Post-Conviction Relief, when Judge Hunt denied a Motion To Change Judge despite evidence contrary to his assertion of no prejudice, and when it was apparent that issues were involved or could be involved pertaining to his own prior misconduct in presiding simultaneously over both the Civil Suit proceedings arising out of the deaths and injury, and the Criminal Prosecution of Sholes for the deaths and injury. GROUND TWENTY-FOUR David T. Sholes was denied due process of law, equal protection, and fair legal proceedings, under the Sixth, and Fourteenth Amendments to the United States Constitution, when Sholes and his counsel were erroneously denied the right to present evidence and witnesses upon his allegations of ineffective counsel and conflict of interest. GROUND TWENTY-FIVE David T. Sholes was denied due process of law, equal protection of law, his right against self-incrimination, and his right to have fair legal proceedings, under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and the Indiana Rules of Post-Conviction Relief, when the State of Indiana introduced into the Post-Conviction record a psychiatric evaluation which went beyond merely reporting to the court on Sholes' competency and which contained prejudicial admissions and information elicited from Sholes without Sholes being advised of his legal rights and how the information would be used. GROUND TWENTY-SIX David T. Sholes was denied due process of law, equal protection, fair legal proceedings, and his right to confrontation and cross-examination, and the prosecutor engaged in knowing and prejudicial misconduct denying Sholes a fair proceeding, under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, when the prosecutor introduced and the court permitted to be put on the Post-Conviction record, the alleged "Fact" (Known By The Prosecutor To Be Actually False) that Sholes' cellmate, James Walsh, had made an incriminating oral statement to police against Sholes. GROUNDS ALLEGED AS TO DISMISSAL OF SUCCESSIVE POST-CONVICTION RELIEF PETITION GROUND TWENTY-SEVEN David T. Sholes was denied eue process of law, redress of grievances, and meaningful access to the courts, under the First, Fifth, and Fourteenth Amendments to the United States Constitution, when the Wabash Circuit Court dismissed Sholes' Successive Post-Conviction Relief Petition for want of prosecution after the delay in question occurred because the petitioner, as an incarcerated individual, was denied meaningful access to the courts and to the Prison Law Library, due to and during two separate six-week prison-wide lock-downs. GROUND TWENTY-EIGHT David T. Sholes was deniedd due process of law and a fair legal proceeding, under the Fifth and Fourteenth Amendments to the United States Constitution, when the prosecutor's conduct in removing documents from the court file that were favorable to the petitioner, during a hearing to show cause why the matter should not be dismissed, resulted in the absence of an accurate procedural history and dismissal of the petitioner's Successive Post-Conviction Relief Petition for want of prosecution. GROUND TWENTY-NINE David T. Sholes was denied due process of law and a fair legal proceedings, under the Fifth and Fourteenth Amendments to the United States Constitution, when the Wabash Circuit Court dismissed Sholes' Successive Post-Conviction Relief Petition for want of prosecution, after the Post-Conviction Court was without a complete procedural history of the case, and after said court became aware of the incomplete court file and the prosecutor's failure to provide the court with a complete file and did nothing to continue the matter until a complete court file could be obtained. GROUND THIRTY David T. Sholes was denied due process of law, fair legal proceeding and equal protection of the laws, under the Fifth and Fourteenth Amendments to the United States Constitution, when the Wabash Circuit Court dismissed Sholes' Successive Post-Conviction Relief Petition for want of prosecution and denied Sholes, a Pro Se litigant, the same rights and procedures afforded to attorney-represented petitioners regarding the Civil Pretrial Rules Of Law, and failed to warn or call a Pretrial Conference prior to Pro Se litigant's dismissal for want of prosecution. GROUND THIRTY-ONE David T. Sholes was denied due process of law and equal protection of the laws, under the Fifth and Fourteenth Amendments to the United States Constitution, when the Wabash Circuit Court dismissed Sholes' Successive Post-Conviction Relief Petition for want of prosecution, pursuant to Indiana Trial Rule 41(E), after the Post-Conviction Court previously granted the petitioner an indefinite continuance and while the petitioner relied upon such in good faith. GROUND THIRTY-TWO David T. Sholes was denied due process of law, the right to make a defense, and the right to self-representation, under the Sixth and Fourteenth Amendments to the United States Constitution, when the Wabash Circuit Court dismissed Sholes' Successive Post-Conviction Relief Petition for want of prosecution and denied Sholes, as an incarcerated Pro Se litigant, the opportunity to adequately prepare for and be heard at an evidentiary hearing. GROUND THIRTY-THREE David T. Sholes was denied eue process of law, equal protection, fair legal proceedings, and confrontation and compulsory process, under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, when the State Appellate Courts affirmed the Lower Court's dismissal of Sholes' Successive Post-Conviction Relief Petition for want of prosecution, denying him a full and fair state hearing. GROUND THIRTY-FOUR David T. Sholes was eenied eue process of law, equal protection, fair legal proceedings, under the Fifth and Fourteenth Amendments to the United States Constitution, when the State Court adjudications were based upon grossly inadequate and unreasonable determinations in light of the evidence presented. GROUND ALLEGED AS TO CONSTITUTIONALITY OF INDIANA DEATH PENALTY STATUTES, RULES, AND PRACTICE GOVERNING CAPITAL CASES GROUND THIRTY-FIVE David T. Sholes was denied due process of law and equal protection of the laws, under the Fifth and Fourteenth Amendments to the United States Constitution, when he was sentenced to life without parole and statutorily distinguished, along with the sentence of death, from non-capital sentences, but not afforded the same provisions as death sentences on appeal and collateral attack after conviction; thereby, making Indiana Code § 35-50-2-3, Indiana Code § 35-50-2-9, Indiana Rules Of Criminal Procedure, Rule 24, and accepted Indiana Practice governing capital cases unconstitutional. FACTS IN SUPPORT OF ISSUES PRESENTED: GROUND ONE FACTS Joe Keith Lewis and Bruce Elliot of Fishburne, Lewis and Elliot, 1005 North Western Avenue, Marion, Indiana 46952 represented Sholes in his trial court proceedings. (i) Though Sholes suffered from a pre-existing psychiatric problem and was under care for this before the incidents for which he was charged, counsel Lewis prohibited Sholes' access to psychiatric treatment and medication for extreme depression and suicidal ideation which Sholes was experiencing during the case's pendency. Counsel was totally unqualified to judge Sholes' psychiatric situation or make any decision regarding it. As a result, Sholes was unable to assist in his own defense or make rational and realistic decisions of any sort concerning his legal or personal situation, and was unable to knowingly and intelligently plead guilty. (ii) Counsel permitted and facilitated Sholes pleading guilty to all the charged offenses when Sholes' mental state and psychiatric condition made Sholes completely unable to competently and rationally do so. (iii) Counsel deliberately coached and facilitated Sholes in fabricating and creating in his own mind and for the court's consumption, a factual basis for the charged offenses, so that counsel could plead Sholes guilty to all charges. Sholes had only vague, disconnected, incomplete memories of anything that had occurred that led to his arrest and charges. Much of what he did "remember" was not his memory at all; rather, it was a combination of bits and pieces of facts he heard, read or picked-up regarding the case during the proceedings. The reality was that Sholes was grossly impaired due to alcohol and drug intoxication at the time of the shooting incident. Minutes after the shooting incident and at the time he was taken into custody he lapsed into a coma and had to be transported by ambulance to the Wabash County Hospital emergency room where he nearly died from alcohol and drug overdose. Furthermore, his recollection was so poor that when he finally surrendered to trial counsel's attempts to coerce a plea, counsel immediately followed with, "Good! There's only one problem though, you don't have enough memory to establish a factual basis - the judge won't accept your plea." Sholes was completely incapable of giving or laying a coherent, connected accurate, and real factual basis for anything that transpired concerning the deaths. Consequently, his attorney deliberately implanted and created "memories" and "facts" in Sholes' mind through suggestion and leading statements (i.e. "someone said something to make you mad, didn't they." so then you became angry," "then you said, Oh my God, what have I done," etc.) and by having him pour through newspapers and counsel's own materials and police reports and witness statements, so he would "recall" what happened. Even after all of this coaching, Sholes was still unable to establish a factual basis apart from counsel asking Sholes questions about what happened that he could simply answer with "Yes." It became clear that even then there was no factual basis for the plea such as Sholes presented, as one surviving victim, during the Sentencing hearing, directly refuted from the stand and labeled untrue what Sholes had said earlier at the Guilty Plea hearing. Throughout the pre-trial, pre-plea, interviews with Sholes, counsel knew most of the memories Sholes had recreated in response to counsel's suggestion, planting of memories, and coaching was completely inaccurate. however, Sholes did not find out they were inaccurate until Sentencing and after his conviction. (iv) Counsel had Sholes enter into the guilty plea agreement that he did, by advising him and misrepresenting to him that the plea was sparing him from the death penalty, whereas in reality the guilty plea agreement's terms and language still did allow Sholes to receive the death penalty. (v) Counsel recommended Sholes to take and facilitated him in taking a guilty plea agreement that contained an invalid aggravator which enhanced Count II to "life without parole" when the facts of Sholes' case did not fulfill the statutory elements for aggravation to "life without possibility of parole". it was apparent that the volunteer fireman that Sholes was alleged to have killed was not a volunteer fireman as defined by Indiana Code 36-8-12-2, nor acting in the course of his duties as defined under Indiana Code 35-50-2-9. Under the law, Sholes simply could not plead to this aggravator, nor be aggravated to "life without parole" upon the basis of this aggravator (see Indiana Code 35-50-2-9), under the clear facts as known to counsel. (vi) Counsel recommended that Sholes take and facilitated Sholes in taking, a guilty plea agreement which included an invalid provision which the court acted upon: waiver of Sholes' right to present mitigation, while further agreeing that the aggravating factors outweighed any possible mitigators Sholes might present. One of the two aggravators under the plea that Sholes was agreeing exceeded any possible mitigators was the invalid aggravator (see Ground One Facts, (v), above) of "fireman acting in the course of his duties" at the time of his death. Absent this major aggravator of the fireman, Sholes would very likely not have agreed, nor would it have been possible, that his significant mitigators would have been outweighed outright by the one remaining aggravator. It was not even clear from the plea agreement wording if the two aggravators were used in tandem or were separate and divisible. Sholes had extensive and significant evidence material to guilt and/or punishment, and mitigation evidence for sentencing purposes which he could have presented at an open sentencing proceeding, including: his extreme intoxication leading to diminished capacity at the time of the offense; emergency medical technician reports and hospital reports showing his comatose state immediately after the incident due to his extreme intoxication; sexual abuse experienced at age four; his past mental problems, and his outstanding work and social history. Further, evidence relevant to guilt and/or mitigation of sentence was Sholes' right and was necessary, in that the charged counts, other than the one involving "life without parole", left the sentencing judge discretion as to the range of years he could impose for each. (vii) Counsel recommending and facilitating Sholes in taking the guilty plea agreement acted to violate Sholes' due process rights because it contained a wholly invalid aggravator, and in that the terms of the plea agreement permitted the prosecution to completely suppress and exclude evidence highly relevant to the issue of guilt and/or punishment, including but not limited-to: a) did Sholes even know what he was doing at the time he committed the offenses; b) could Sholes lay a sufficient factual basis for the plea; c) did Sholes have an intoxication/impairment defense to the crime altogether; d) did the claimed aggravators of the State truly exist; and e) did Sholes have significant, relevant mitigation evidence to present. (viii) Counsel failed utterly to present any evidence of mitigation at the time of the guilty plea or the sentence even though such mitigation evidence was highly relevant to: a) the judge's consideration of whether he would accept the guilty plea; b) the judge's consideration whether to give Sholes the death penalty or "life without parole" as to the one charge of Murder involving the fireman; c) the judge's consideration of how many years he would give Sholes on the open terms of years sentences on the other charges; and d) whether, indeed, Sholes was guilty of the offenses at all (he had an voluntary intoxication defense), or had sufficient awareness of what he did to intelligently plead guilty at all and try to lay a factual basis. Sholes had major and extremely relevant mitigation evidence to present, including his history of mental illness, his extreme intoxication leading to diminished capacity at the time of the incidents charged, emergency medical technician reports and hospital reports showing he was comatose immediately after the incident due to his intoxication, sexual abuse experienced at age four, and his excellent work and social history. (ix) Counsel recommended Sholes take and facilitated him in taking a plea agreement that permitted the sentencing court to totally disregard well established statutory and case law that the court must include, articulate, and balance all mitigating and aggravating factors in rendering its enhanced sentence. (x) Counsel permitted Sholes to take a guilty plea and the court to accept and enter conviction and sentence upon a guilty plea, when he knew for a matter of fact his client could not recall what had happened at the time of the incident, and that he was making up or piecing together from other sources the "facts" he alleged to have occurred. (see, Ground One Facts (iii), above). Counsel directly assisted in giving an inadequate and contrived factual basis to the court by first coaching Sholes and implanting memories into his head as to the "facts" he should "remember", then eliciting these by leading questions at the time of the guilty plea. Sholes' counsel helped him give an inadequate factual basis for the guilty plea. (xi) Counsel misrepresented, misled, and coerced Sholes into accepting and going through with the guilty plea by telling him that he could be aggravated to the death penalty for killing a fireman in the course of his duties if he did not plead, when this was an invalid aggravator as a matter of fact and law. (see Ground One Facts, (v), above).
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