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A man whose motions to change the judge in his post-conviction relief case have been denied failed to demonstrate the judge would be biased against him, the Court of Appeals of Indiana has ruled in affirming a lower court’s decision.
Leon Tyson, who was convicted of murder in 2017, filed a petition for post-conviction relief in 2018. He filed an amended petition in May 2021 in the Elkhart Superior Court.
That month, Tyson also filed a motion for a change of judge pursuant to Post-Conviction Rule 1(4)(b), arguing he was entitled to a new judge because the post-conviction judge had been a deputy prosecutor in the Elkhart County Prosecutor’s Office from 1998 until 2002.
Tyson also argued the court should grant his motion because it did so for another man, Andrew Royer, who was convicted of murder in 2005.
In 2019, Royer had filed a motion for change of judge. The post-conviction judge, who had issued an order finding that his attorney violated Indiana Rule of Professional Conduct 3.6(a), granted Royer’s motion.
The attorney in Royer’s case also represents Tyson. The judge in Royer’s case is also the post-conviction court judge in Tyson’s case.
A new judge granted Royer’s successive petition for post-conviction relief and vacated Royer’s murder conviction based on newly discovered evidence and Brady violations.
The post-conviction court eventually denied Tyson’s motion for a change of judge.
Tyson filed a motion for reconsideration three weeks later, arguing the court misread how Royer’s case showed the court’s inability to be impartial. The post-conviction court denied the motion.
Tyson appealed the denial of his motion, and the Court of Appeals accepted jurisdiction in February 2022.
Then, in March 2022, Tyson filed a motion pursuant to Indiana Appellate Rule 37 to stay the appeal and remand the case to the post-conviction court. Tyson claimed he had newly discovered evidence that revealed the post-conviction judge had been married from 1992 until 2003 to someone who was an Elkhart Police Department reserve police officer from 1983 through 1994.
Tyson filed a renewed motion for a change of judge, which the post-conviction court denied without a hearing. The post-conviction court also denied a motion for reconsideration.
On appeal, Tyson argued the post-conviction court erred when it denied his motion for a change of judge.
The Court of Appeals disagreed.
Tyson argued that because the post-conviction court previously found the common attorney in Royer’s case violated a rule of professional conduct, that supports an inference of bias or prejudice against Tyson.
But the Court of Appeals said it found nothing to support that argument, in part because the order against the attorney didn’t mention Tyson.
Tyson also argued the post-conviction court judge’s 1998-2002 tenure as a deputy prosecutor supports an inference of bias or prejudice against him.
But the Court of Appeals disagreed, referencing the 13-year gap between the judge leaving the prosecutor’s office and Tyson being charged.
Lastly, Tyson argued the post-conviction court judge’s 1992-2003 marriage supports an inference of bias or prejudice against him.
But the Court of Appeals disagreed there, too, noting the marriage ended 10 years before Tyson was charged.
“We further note that the post-conviction court has neither expressed an opinion on the merits of Tyson’s case nor attacked his character,” the opinion says. “Accordingly, because we are not left with a definite and firm conviction that a mistake has been made, we conclude that the post-conviction court did not clearly err in denying Tyson’s motion for a change of judge.”
Judge Rudolph Pyle wrote the opinion. Judges Terry Crone and Cale Bradford concurred.
The case is Leon Tyson v. State of Indiana, 22A-PC-143.
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