NOT FOR PUBLICATION
MEMORANDUM DECISION
BAKER, Judge.
Appellant-petitioner Herschel S. Crain, Jr., appeals the denial of his petition for post-conviction relief, alleging ineffective assistance of trial and appellate counsel. Specifically, Crain claims that his trial counsel was ineffective for failing to object to a notation in a witness's curriculum vitae that indicated Crain was charged as a habitual offender and that appellate counsel was ineffective for failing to raise that issue on direct appeal. Crain further asserts that his trial counsel was ineffective for failing to hire a forensic pathologist to support his theory of defense.
Concluding that Crain's ineffective assistance of trial counsel arguments are barred by res judicata and that the post-conviction court did not err in denying Crain's petition regarding the ineffective assistance of appellate counsel claims, we affirm.
FACTS
In 1997, Crain was charged with Count I, murder, and Count II, aggravated battery, a class B felony. Crain was also charged as a habitual offender. A jury convicted Crain of both counts. On December 5, 1997, the trial court sentenced Crain to terms of sixty years on Count I, enhanced by thirty years as a result of the habitual offender finding, and to twenty years on Count II, which was to run concurrently with Count I.
Crain appealed his conviction to our Supreme Court alleging, among other claims, ineffective assistance of trial counsel. Specifically, Crain argued that counsel was ineffective for: (1) failing to adequately litigate the voluntariness of his confessions; (2) failing to tender a jury instruction in that regard; (3) failing to adequately communicate with Crain and his private investigator; (4) failing to call and recall certain witnesses; and (5) failing to strike the jury venire panel. Crain v. State, 736 N.E.2d 1223, 1230-41 (Ind. 2000).
Our Supreme Court affirmed Crain's convictions but remanded the case to the trial court for resentencing. On remand, the trial court resentenced Crain to the original term of sixty years on Count I that was enhanced by thirty years on the habitual offender finding.1
On May 24, 2010, Crain filed an amended petition for post-conviction relief, alleging that his status as a habitual offender should be vacated because one of his two prior predicate felony convictions had been reduced to a misdemeanor. Crain further argued ineffectiveness of trial and appellate counsel for failing to challenge a notation in the forensic pathologist's curriculum vitae. As discussed above, the notation indicated that Crain was alleged to be a habitual offender. The vitae sheet was admitted into evidence at trial without objection. Crain also alleged in his petition for post-conviction relief that his trial counsel was ineffective for failing to hire a defense forensic pathologist and that appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness on that basis.
Following a hearing on October 1, 2010, the post-conviction court issued findings of fact and conclusions of law and vacated the thirty-year habitual offender enhancement upon the finding that one of the predicate felony convictions had been reduced to a misdemeanor. However, the post-conviction court denied Crain's remaining claims. Crain now appeals.
DISCUSSION AND DECISION
I. Standard of Review
Because Crain is appealing from a negative judgment, he must establish that the evidence, when viewed in its entirety, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). We will only reverse a post-conviction court's findings of fact if clearly erroneous. Id. However, we do not defer to the post-conviction court's conclusions of law. Wilson v. State, 799 N.E.2d 51, 53 (Ind. Ct. App. 2003). Post-conviction proceedings do not afford an opportunity for a "super appeal" nor do they substitute for a direct-appeal. Id. Instead, they are to provide a narrow remedy for subsequent collateral challenges to convictions. Id.
In reviewing a claim of ineffective assistance of counsel on the part of trial and or appellate counsel, we apply the same two-part test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, the petitioner must first show that counsel performed deficiently and, next, that the deficiency resulted in prejudice against the petitioner. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Furthermore, the two prongs of the Strickland test are separate inquiries, and a court may move to the determination of prejudice without first deciding the adequacy of counsel's performance. Thacker v. State, 715 N.E.2d 1281, 1284 (Ind. Ct. App. 1999).
Claims of ineffective assistance of appellate counsel have generally fallen into any one of three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to raise or to adequately present an issue. Id. When claims are made based upon the second category, where counsel fails to raise an issue on appeal, which results in waiver of that issue on collateral review, the petitioner must overcome the strongest presumption in favor of adequate assistance of counsel. Id.
In evaluating claims under this second category, we apply the test enunciated in Strickland. Id. Under the performance prong, we determine: (1) whether the unraised issues are significant and obvious from the face of the record; and (2) whether the un-raised issues are "clearly stronger" than the issues that were raised. Id. If the petitioner can demonstrate that these two sub-elements for deficient performance exist, the analysis moves on to the determination of prejudice. To determine prejudice, we examine whether the issues that were not raised would have been "clearly" more likely to result in reversal of judgment or an order for a new trial. Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)).
II. Ineffective Assistance of Trial Counsel
Crain argues that the post-conviction court erred in denying his ineffective assistance of trial counsel claims. Crain maintains that his trial counsel was ineffective because: (1) trial counsel failed to hire a forensic pathologist that might proffer testimony in support of Crain's defense; and (2) trial counsel failed to recognize and object to a notation in Dr. Cavanaugh's curriculum vitae, which indicated that Crain was facing a habitual offender charge.
However, Crain raised the issue of ineffective assistance of trial counsel on direct appeal. Crain, 736 N.E.2d at 1238-41. Thus, he is precluded from doing so at this juncture. See Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997) (holding that a petitioner "having once litigated his Sixth Amendment claim concerning ineffective assistance of counsel, is not entitled to litigate it again by alleging different grounds"). Therefore, the post-conviction court did not err in denying relief on these claims.
III. Ineffective Assistance of Appellate Counsel
Crain initially asserts in tandem to his claim regarding ineffective assistance of trial counsel that, "appellate counsel was ineffective for raising trial counsel ineffectiveness without doing any independent investigation for potential claims not present on the face of the record." Appellant's Br. p. 8. We find our Supreme Court's discussion in Woods v. State, 701 N.E.2d 1208, 1221-22 (Ind. 1998), instructive on this point.
In Woods, the various paths in which an ineffective assistance of counsel claim could be raised were delineated, such as when the issue was not clear from the record. Id. at 1212. The Woods Court identified these issues as "extra-record errors." Id. It was determined that, "because there is no constitutional requirement for appellate counsel to search outside the record for error, an ineffective assistance of appellate counsel claim that is in substance a trial counsel claim requiring extrinsic evidence may be dead on arrival." Id. at 1221-22. Stated differently, "a claim of ineffective assistance of appellate counsel is not an adequate back door to a full adjudication of ineffectiveness of trial counsel." Id. at 1222.
Here, Crain would have appellate counsel do what Crain insisted that trial counsel should have done, which is hire a pathologist to support his theory of defense. This argument substantively attaches a claim of ineffectiveness to appellate counsel as cover for a claim that in all actuality was against trial counsel's ineffectiveness. Thus, according to the Court's reasoning in Woods, this argument is "dead on arrival." Id.
Crain also argues that his appellate counsel, while claiming ineffective assistance of trial counsel, was in turn ineffective for failing to notice and raise the issue regarding the notation in Dr. Cavanaugh's curriculum vitae that alluded to Crain's charge as a habitual offender.
We first analyze Crain's contention under the performance prong of Strickland as to whether the issue not raised was both significant and obvious from the record, and clearly stronger than the other issues that were raised. Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001). Although Crain emphasizes the significance of this issue, he fails to adequately address whether the issue was obvious and clearly stronger than the other issues raised.
Nonetheless, we note that there were several notations in Dr. Cavanaugh's curriculum vitae, each indicating his involvement in other cases that were unrelated to the matter at hand. Only one notation was made pertaining to this case. Each case listed the charges and names of the offender. Within that list of names and charges, were the two words "habitual offender" that Crain contends were "obvious" from the face of the record. Tr. p. 947-49. However, it is apparent that the notation was so concealed in the record that neither trial counsel nor appellate counsel located it. Appellant's Ex. D; Tr. p. 9. Furthermore, even if this omission was obvious, our Supreme Court has held that "isolated omissions, or errors, poor strategy, or bad tactics are not in themselves evidence of deficient performance." Childers v. State, 719 N.E.2d 1227, 1231 (Ind. 1999).
In support of the "clearly stronger" element, Crain suggests that the testimony elicited from appellate counsel during the post-conviction proceedings, in which counsel admitted to his oversight on the notation, taken in conjunction with the affidavit submitted by trial counsel in those same proceedings, necessarily proves that this issue is superior to that of the other issues that were raised on direct appeal.
On direct appeal, Crain presented several evidentiary issues, including the trial court's admission of Crain's criminal history and pending charges. Pet. Ex. B. In our view, the remarkable similarity between those issues raised on direct appeal and the issue regarding the notation in Dr. Cavanaugh's curriculum vitae, lend support for the post-conviction court's conclusion that Crain cannot prevail on the "clearly stronger" requirement of the performance prong. See Timberlake, 753 N.E.2d at 608 (finding that although an issue was obvious, it was not clearly stronger than several other related issues that were raised). In short, we believe that the single notation in Dr. Cavanaugh's curriculum vitae was neither obvious from the record nor clearly stronger than the rest of the issues that were raised by appellate counsel in asserting ineffective assistance of trial counsel.
However, assuming solely for the purpose of argument that appellate counsel had performed deficiently by not raising the issue, we are not convinced that Crain adequately demonstrated prejudice such that an order for a new trial would have been clearly more likely to occur. Indeed, Crain merely speculates as to the likelihood of a single juror seeing the notation on the curriculum vitae that had been admitted into evidence, understanding the notation, and then prejudicing the outcome of that juror's determination in the case. Crain has failed to evince anything in support of his contentions, and we will not speculate in such regard. See Hernandez v. State, 638 N.E.2d 460, 461 (Ind. Ct. App. 1994) (holding that mere speculation is insufficient to prove prejudice). Therefore, we conclude that the post-conviction court's determination that Crain did not receive ineffective assistance of appellate counsel was not clearly erroneous.
The judgment of the post-conviction court is affirmed.
MAY, J., and BRADFORD, J., concur.
