September 28, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:13-cv-1981-JMS-DKL - Jane Magnus-Stinson, Chief Judge.
Kanne, Sykes, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
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
co-defendant 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.
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.
Factual and Procedural Background
appeal we review de novo district court rulings on
petitions for habeas relief and review any findings of fact
for clear error. See Lisle v. Pierce, 832 F.3d 778,
781 (7th Cir. 2016); Coleman v. Hardy, 690 F.3d 811,
814 (7th Cir. 2012). Those claims not adjudicated on the
merits in the state court, like the one presented here, are
also reviewed de novo. Cone v. Bell, 556 U.S. 449,
472 (2009); Warren v. Baenen, 712 F.3d 1090, 1096,
1098 (7th Cir. 2013).
The Murder Trial of Joshua Love and Dentrell Brown
early morning hours of March 8, 2008, in Elkhart, Indiana,
Gerald Wenger was murdered after trying to buy drugs. He was
discovered lying dead in the street around 2:00 a.m., with a
single nine-millimeter bullet wound to his head. Two bullet
casings were found near Wenger's body, one from a
nine-millimeter handgun and a second from a .45 caliber
handgun. No physical evidence was recovered beyond the shell
the murder, investigators relied on information from
interviews with community members. After interviews provided
the names of Joshua Love and Dentrell Brown, investigators
began to rely on information from incarcerated individuals.
On June 18, 2008, the State charged Brown with murder.
was then just thirteen years old, and Love was nineteen years
old. Brown was waived into adult felony court, and the two
were tried together. At trial, the State's key evidence
tying Brown to the crime scene was the testimony of Mario
Morris. Morris testified that, while Morris, Brown, and Love
were all in the Elkhart County Jail, Brown and Love each
confessed separately to involvement in the murder. Testifying
first to his conversation with Love, Morris said that Love
confessed to trying to sell fake drugs to Wenger the night of
the murder, and then, after the sale went bad, shooting
Wenger in the head with a nine-millimeter handgun.
then testified that Brown had told him a similar story, but
with some important differences. For example, Morris
testified that Brown said he had struck Wenger with the butt
of a .45 caliber handgun, discharging one unintentional shot.
A critical feature of Morris's testimony for
Bruton purposes was that his account of Love's
confession included no mention of Brown or anyone else having
been present at the shooting, and his account of Brown's
confession included no mention of Love or anyone else having
been present when Brown hit Wenger in the head.
Morris testified, Brown and Love both moved for a mistrial
based on Bruton v. United States, 391 U.S. 123
(1968). The trial judge denied both motions, emphasizing that
at no time did Morris say Brown's name when testifying
against Love, nor did he say Love's name when testifying
against Brown. Both Love and Brown were convicted of murder,
with Brown's conviction based on a theory of accomplice
liability. Brown was sentenced to 60 years in prison.
Direct & Collateral Review in the State Courts
direct appeal, Brown's counsel raised three claims,
including that the trial court abused its discretion when it
denied his Bruton motion for a mistrial. D.B. v.
State (D.B. I), 916 N.E.2d 750, 2009 WL 3806084, at *1,
2-3 (Ind. App. 2009) (mem.). Brown's appellate counsel
argued that Morris's testimony about Love's statement
violated Brown's confrontation rights because Brown could
neither compel Love to testify nor cross-examine him.
Id. at ""2. The appellate court was not
persuaded. It found no Bruton violation because
Morris's account of Love's confession to him never
mentioned a third party present at the scene of the murder.
Id. at ""3.
filed a petition for post-conviction relief in state court
with the assistance of counsel. His post-conviction lawyer
raised a single issue in the operative petition: ineffective
assistance of trial counsel for having failed to move to
sever Brown's trial from Love's. The argument relied
on Bruton even though the appellate court on direct
review had "specifically held" that there was no
Bruton violation in Brown's trial. The trial
court denied relief, and the Indiana Court of Appeals
affirmed, finding that the ineffective assistance of counsel
claim was an attempt to revisit the Bruton issue
decided against Brown on direct appeal and thus barred by
res judicata. D.B. v. State (D.B. II), 976 N.E.2d
146, 2012 WL 4713965 at *2-3 (Ind. App. 2012) (mem.).
Brown's Federal Habeas Petition
habeas petition to the federal district court raised three
issues, two of which have been dropped on appeal. The only
claim before us is Brown's claim that his "trial
lawyer was ineffective for failing to request an instruction
limiting the use of Love's statement, offered through
Morris, to Love." Because it was not presented to the
state courts, the claim for ineffective assistance of trial
counsel would ordinarily be barred from federal review
because of procedural default. In the district court,
however, Brown argued that he should be given the opportunity
to overcome that default under Martinez, 132 S.Ct.
1309, and Trevino, 133 S.Ct. 1911.
district court held that Martinez and
Trevino do not apply to § 2254 cases in
Indiana, and thus Brown was not entitled to attempt to
overcome procedural default on his claim for ineffective
assistance of trial counsel. Brown v. Brown, No.
l:13-cv-1981-JMS-DKL, 2015 WL 1011371, at *2-3 (S.D. Ind.
2015). His request for an evidentiary hearing was denied and
his petition dismissed. We granted Brown an expanded
certificate of appealability that included this claim because
Brown had "made a substantial showing of the denial of
his right to effective assistance of trial counsel."
claim for ineffective assistance of trial counsel requires a
two-step analysis. We hold first that the
Martinez-Tre-vino doctrine can apply to claims for
ineffective assistance of counsel arising from the Indiana
state courts. We next hold that Brown has offered some
evidence of deficient performance by his post-conviction
relief counsel and has asserted a substantial claim of
ineffective assistance of trial counsel. We reverse and
remand the case to the district court for an evidentiary
hearing on both claims for ineffective assistance, first on
the procedural default issue and then, if the default is
excused, on the merits of the trial-based claim.
explaining our view on Martinez-Trevino, we pause to
address the state's assertion that petitioner's
argument on appeal has been forfeited. The state argues that
in the federal district court, petitioner's claims were
based on the Confrontation Clause pursuant to Bruton
rather than the Indiana Rules of Evidence. Under this theory,
Brown's claim of ineffective assistance of trial counsel
for failure to request a limiting instruction based on the
Indiana Rules of Evidence would be forfeited now on appeal.
We disagree. Brown's habeas petition claimed clearly that
his "trial lawyer was ineffective for failing to request
an instruction limiting the use of Love's statement,
offered through Morris, to Love." The habeas petition
discussed the failure to request the limiting instruction as
something that should have occurred following the denial of
the motion for a mistrial, and the federal district court
evaluated Brown's claim separately from the Confrontation
Clause issue. Thus, petitioner's specific claim-although
not presented in the state courts-was not forfeited by any
supposed failure to raise it in the federal district court.
The Martinez-Trevino Doctrine Applies in Indiana
appeal, petitioner argues that the rule established in
Martinez and Trevino applies to § 2254
cases in Indiana so that he may try to overcome the
procedural default of his claim for ineffective assistance of
trial counsel. See Martinez, 132 S.Ct. 1309;
Trevino, 133 S.Ct. 1911. We agree. We first explain
the scope of the Martinez-Trevino doctrine. Against
that backdrop, we then review the Indiana procedures for
raising ineffective assistance of trial counsel, and we
compare those procedures to those in other jurisdictions
where the Martinez-Trevino doctrine applies. We find
that Indiana procedures governing ineffective assistance of
trial counsel claims fall into the category the Supreme Court
addressed in Trevino.
The Martinez-Trevino Doctrine
federal habeas petitioner's claim is subject to the
defense of procedural default if he does not fairly present
his claim through a complete round of state-court review.
Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.
2014). A prisoner can overcome procedural default by showing
cause for the default and resulting prejudice, or by showing
he is actually innocent of the offense. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Until recently, a
federal petitioner could not overcome the federal bar on
procedurally defaulted claims by proving ineffective
assistance of post-conviction counsel because there is no
constitutional right to post-conviction counsel. See
id. at 752-53.
2012, however, the Supreme Court recognized a new form of
cause for overcoming procedural default in Martinez:
"Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective."
132 S.Ct. at 1315, 1320. The Court explained that this route
was needed to protect a prisoner with "a potentially
legitimate claim of ineffective assistance of trial
counsel" when state law required defendant to bring
claim for ineffective assistance of trial counsel on
collateral review. Id. If post-conviction counsel
errs by failing to raise a claim for ineffective assistance
of trial counsel in the initial round of collateral review,
it is unlikely that any state court at any level will hear
the claim. Id. at 1316.
next year, the Court expanded the Martinez form of
"cause" in Trevino, holding that "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 a
difference." Trevino, 133 S.Ct. at 1921.
Examining Texas law, Trevino observed that even
though Texas did not require a defendant to raise an
ineffective assistance of trial counsel claim in state
collateral review proceedings, the "structure and design
of the Texas system in actual operation" worked
effectively as a ban on claims on direct review. Id.
at 1915. Like Texas, Indiana does not always require