7th Circuit denies rehearing, allows case to proceed to evidentiary hearing

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A man convicted as a teenager in a 2008 Elkhart murder will still be given a federal evidentiary hearing on his claim of ineffective assistance of post-conviction counsel after a majority of 7th Circuit Court of Appeals judges denied the state’s petition for a panel or en banc rehearing.

The case of Dentrell Brown v. Richard Brown, 16-1014, began in June 2008, when 13-year-old Dentrell Brown was charged in the murder of Gerald Wenger. The state’s key evidence came from the testimony of Mario Morris, who told the court that while he was incarcerated in the Elkhart County Jail, both Brown and his co-defendant, Joshua Love, confessed separately to the murder.

Brown was convicted under the theory of accomplice liability and was sentenced to 60 years. After his direct appeal and petition for post-conviction relief failed in state courts, Brown filed a federal habeas petition in the U.S. District Court for the Southern District of Indiana, arguing “his trial lawyer was ineffective for failing to request an instruction limiting the use of Love’s statement, offered through Morris, to Love.”

Though he did not raise that claim in state court, Brown argued he should be allowed to bring it before the federal judge under Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). A divided panel of the 7th Circuit Court of Appeals agreed, finding that 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 appeal, the Martinez-Trevino form of cause to excuse procedural default is available to Indiana residents who seek federal habeas relief.

 Specifically, Judge David Hamilton wrote that because Brown’s post-conviction counsel could have raised an ineffective assistance of trial counsel claim, yet chose not to, Brown is entitled to an evidentiary hearing. Thus, the majority remanded the case to the district court for an evidentiary hearing on the issue of ineffective post-conviction counsel. If the claim is found to be substantial, then the case will proceed to an evidentiary hearing on the merits.

But Judge Diane Sykes dissented, voting to grant rehearing, writing separately that Martinez-Trevino does not apply in Indiana because the state instead employs 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.

Sykes raised a similar argument in her Wednesday dissent to denial of the state’s petition for rehearing. Further, Sykes pointed to the recent decision in Davila v. Davis, 137 S. Ct. 2058 (2017), in which the U.S.  Supreme Court declined to expand the Martinez-Trevino exception to defaulted claims of ineffective assistance of appellate counsel.

“Expanding Martinez-Trevino, the Court said, ‘would unduly aggravate the ‘special costs on our federal system’ that federal habeas review already imposes,’” Sykes wrote in a dissent joined by Judges Frank Easterbrook and Joel Flaum. “The same principles are implicated here. The panel’s expansion of Martinez-Trevino cannot be justified under the terms of those decisions and is hard to reconcile with the Court’s reasoning in Davila.”

All other judges voted to deny an en banc rehearing in the Wednesday per curiam opinion.

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