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Wednesday, February 01, 2017

Ind. Decisions - Intro to 7th Circuit OSHA case out of Illinois

In Dana Container, Inc. v. Secretary of Labor (OSHA order), a 12-page opinion, Chief Judge Wood begins:

It is not hard to find people who complain about government regulations, but the regulations often exist because people do not take optimal precautions on a voluntary basis. This case illustrates that problem. It arose after toxic fumes in a large container knocked out a man who was working inside it. Fortunately, he was rescued by the local fire department, but his employer, Dana Container, wound up fighting citations from the Occupational Safety and Health Administration (OSHA). After an administrative law judge (ALJ) and the Occupational Safety and Health Review Com‐ mission upheld OSHA’s actions, Dana turned to this Court. Because Dana has not provided a compelling reason to over‐ turn the Commission’s determinations, we deny its petition for review.  

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today (2-1): Dissent - "As a result of today’s decision, the Indiana district courts will be deluged with defaulted Strickland claims"

In Dentrell Brown v. Richard Brown (SD Ind., Magnus-Stinson), a 2-1, 35-page opinion, Judge Hamilton writes:

Petitioner Dentrell Brown and his co-defendant Joshua Love were convicted of murder in a joint trial in an Indiana court. After exhausting state court remedies, Brown filed a federal habeas corpus petition under 28 U.S.C. § 2254. He claims he was denied effective assistance of counsel when his lawyer failed to insist that the judge give the limiting instruction required when evidence of a co-defendant’s out-of-court confession is introduced in a joint trial. See Bruton v. United States, 391 U.S. 123 (1968) (protecting codefendant from testimonial confessions of other co-defendants). The district court denied the habeas petition, finding that Brown had procedurally defaulted this claim for ineffective assistance of trial counsel by failing to assert it in state court so that federal review is barred. Brown has appealed.

On the issue of procedural default, we hold that the form of “cause” found in Martinez v. Ryan, 566 U.S. —, 132 S. Ct. 1309 (2012), and expanded in Trevino v. Thaler, 569 U.S. —, 133 S. Ct. 1911 (2013), is available to federal habeas corpus petitioners in Indiana who have substantial claims for ineffective assistance of trial counsel that have been procedurally defaulted in state post-conviction proceedings by lack of any counsel or lack of effective counsel. Brown is entitled to an opportunity to overcome procedural default of his claim for ineffective assistance of trial counsel for failure to request a limiting instruction if he can both demonstrate ineffective assistance of post-conviction counsel and assert a substantial claim of ineffective assistance of trial counsel. We conclude that he is entitled to an evidentiary hearing. * * *

In sum, the Martinez-Trevino doctrine applies to Indiana procedures governing ineffective assistance of trial counsel claims. Petitioner Brown has presented evidence of ineffective post-conviction counsel and made a substantial claim of ineffective assistance of trial counsel. Accordingly, we REVERSE the district court’s dismissal of Brown’s petition and REMAND to the district court for an evidentiary hearing on the issue of ineffective assistance of post-conviction counsel. If the district court finds deficient performance by post-conviction counsel, Brown’s default will be excused, and he will be entitled to an evidentiary hearing on the merits in the district court for the underlying claim of ineffective assistance of trial counsel for failure to request a limiting instruction. * * *

[p. 25] SYKES, Circuit Judge, dissenting.
“Federalism and comity principles pervade federal habeas jurisprudence.” Johnson v. Foster, 786 F.3d 501, 504 (7th Cir. 2015). “One of these principles is that ‘in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner’s federal rights.’” Id. (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). The doctrine of procedural default enforces this principle: A federal court will not hear a state prisoner’s habeas claim unless the prisoner has first presented it to the state courts for one full round of review. Id. (citing Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014)). * * *

As a result of today’s decision, the Indiana district courts will be deluged with defaulted Strickland claims. It is an unfortunate reality in postconviction litigation that ordinary claims of trial error can be easily repackaged as claims of ineffective assistance of trial counsel. Now that Indiana prisoners may use Martinez-Trevino, Indiana district judges will routinely have to contend with the two gateway questions that unlock the door to plenary review of defaulted Strickland claims. A federal judge will have to decide—de novo—whether the prisoner’s postconviction counsel was ineffective, and if so, whether the underlying Strickland claim is substantial. An affirmative answer means full federal review of the defaulted claim unburdened by AEDPA’s deferential standard of review.

This is a serious intrusion on federalism interests. I return to where I started: The “state courts are the principal forum for asserting constitutional challenges to state convictions.” Richter, 562 U.S. at 103. That will no longer be true in Indiana for at least some Strickland claims. After today’s decision, the federal courts, not the state courts, will be the primary forum for more constitutional challenges to state convictions. That result would be unavoidable if Martinez and Trevino inescapably applied. But they do not inescapably apply. I respectfully dissent.

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 0 NFP memorandum decision(s))

For publication opinions today (1):

In Menard, Inc. v. Reba Lane, a 16-page opinion, Judge May writes:

Menard, Inc. (“Menard”) appeals the denial of its motion to set aside the default judgment entered in favor of Reba Lane when Menard failed to appear or defend itself against her personal injury suit. As we conclude the trial court did not abuse its discretion in denying Menard’s motion to set aside the default judgment, we affirm. * * *

Lane attempted service of her complaint and summons in multiple ways, all of which conformed with the requirements of the Indiana Trial Rules. Additionally, Lane’s attorney did not engage in misconduct when she did not notify the two law firms who had represented Menard in the past. Finally, the breakdown in communication between Menard employees regarding the summons and complaint was not excusable neglect. Accordingly, we affirm.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to Ind. App.Ct. Decisions

Law - More on former EPA administrator, Anne Gorsuch Burford

In a post yesterday, I mentioned Anne Gorsuch Burford, mother of the new SCOTUS nominee, Neil Gorsuch. Last evening, NPR's Nina Totenberg quoted from Ms. Burford's July 22, 2004 obituary in the Washington Post, and it is certainly worth a read. Burford took on the assignment in 1982 to serve as the anti-EPA administrator of President Reagan's EPA, and it turned out badly.

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to General Law Related

Ind. Decisions - Even more on: Federal district court rules today in complex rights of same-sex couples dispute

Updating this ILB post from July 1, 2016, re the decision by U.S. District Court Judge Tanya Walton Pratt in Henderson v. Adams, and this Aug. 16th update, Stephanie Wang reported yesterday for the Indianapolis Star, in a story headed "State appeals ruling on parental rights for same-sex couples":

The state of Indiana is appealing a federal judge's ruling allowing female same-sex spouses to both be listed on their children's birth certificates.

In June, Judge Tanya Walton Pratt ruled against state laws that allowed for only the birth mother to be listed as a parent on a child's birth certificate, while her spouse had to adopt the child to gain parental rights.

Pratt ordered Indiana to extend the same parental rights to married same-sex couples as it does for married opposite-sex couples, including listing both mothers on a birth certificate.

While the state's appeal of that ruling is pending, same-sex couples will still have their parental rights recognized.

"At this time, our office is merely continuing to defend statutes enacted by the legislature," Indiana Attorney General press secretary Corey Elliot wrote in an email.

Later in the long story:
The state had argued that its laws reflect parenthood by biology or adoption. Parenthood rights, the state said, are not a benefit of marriage.

But the couples said the state was discriminating against same-sex marriages, since opposite-sex parents are treated differently under state laws. The state affords the presumption of parenthood, the lawsuit said, to a man in a heterosexual couple in cases where he may not be the biological father, such as in cases of artificial insemination. But it does not offer the same presumption of parenthood to the wives of birth mothers.

Without those parental rights, women could encounter issues with enrolling their children in school, making medical decisions for their children or listing their children as dependents on insurance policies, the lawsuit said. * * *

The appeal will go through the U.S. Court of Appeals for the Seventh Circuit.

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to Ind Fed D.Ct. Decisions