A doctrine allowing prisoners to bring ineffective assistance of counsel claims after a procedural default at the state level applies in Indiana and, thus, entitles a convicted murderer to an evidentiary hearing on his ineffective counsel claim, a divided 7th Circuit Court of Appeals decided Wednesday.
In June 2008, 13-year-old Dentrell Brown was charged in the Elkhart murder of Gerald Wenger. The state’s key evidence came from the testimony of Mario Morris, who told the court that while he, Brown and Joshua Love, Brown’s co-defendant, were in the Elkhart County Jail, Brown and Love each confessed separately to the murder.
Brown and Love moved for a mistrial after Morris’ testimony, but the trial court denied both motions. Both were convicted of murder, with Brown’s conviction based on a theory of accomplice liability. He was sentenced to 60 years.
On direct appeal, Brown’s counsel argued that the trial court abused its discretion when it dismissed his motion for a mistrial because Morris’ testimony about Love’s statement violated Brown’s confrontation rights. After the appellate court rejected that argument, he moved for post-conviction relief, arguing ineffective assistance of trial counsel because his attorney failed to move to sever Brown’s trial from Love’s, but that motion was also denied.
Brown then filed a federal habeas petition in the U.S. District Court for the Southern District of Indiana, arguing, among other theories, that “his trial lawyer was ineffective for failing to request an instruction limiting the use of Love’s statement, offered through Morris, to Love.” Although he did not raise that claim in the state courts, Brown argued that he should be allowed to bring it before the federal judge under Martinez v. Ryan, 56 U.S. –, 32 S. Ct. 1309 (2012) and Trevino v. Thaler, 569 U.S. – 133 S. Ct. 1911 (2013).
The district court rejected Brown’s habeas petition, as well as his request for an evidentiary hearing. But on appeal, a majority of a panel of 7th Circuit judges held that the Martinez-Trevino doctrine can apply to ineffective counsel claims arising from Indiana state courts.
Under the Martinez-Trevino doctrine, “a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without difference.”
Thus, because Indiana’s procedural system “as a matter of its structure, design, and operation” does not offer a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal, the Martinez-Trevino form of cause to excuse procedural default is available to Indiana residents who seek federal habeas relief, Judge David Hamilton wrote for the majority of the divided panel.
Under the Martinez-Trevino doctrine, Hamilton wrote that the court can compare claims actually made against those that might have been made. In Brown’s case, his post-conviction counsel could have raised the claim that his trial counsel was ineffective, but chose not to do so. Thus, because Brown proved that another, stronger claim was available than what his post-conviction counsel raised, he is entitled to an evidentiary hearing, Hamilton wrote.
Further, Hamilton wrote that Brown’s claim of deficient trial counsel and resulting prejudice was substantial and, thus, avoids the procedural default that caused the district court to dismiss his case.
The case of Dentrell Brown v. Richard Brown, 16-1014, therefore, was remanded to the district court for an evidentiary hearing on the issue of ineffective post-conviction counsel. If Brown’s claim is found to be substantial, then the case will proceed to an evidentiary hearing on the merits.
Judge Diane Sykes dissented, writing in a separate opinion that Martinez-Trevino does not apply in Indiana because the state instead has a procedure known as Davis/Hatton, which “allows a defendant to suspend the direct appeal to pursue an immediate petition for post-conviction relief” in order to develop a factual record to support an ineffective assistance of counsel claim on direct appeal.
“In short, my colleagues’ decision is not so much an application of Trevino as an unwarranted expansion of it,” Sykes wrote.