Wednesday, February 01, 2017
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 February 1, 2017 05:45 PM
Posted to Ind. (7th Cir.) Decisions