Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Brown

United States Court of Appeals, Seventh Circuit

February 1, 2017

Dentrell Brown, Petitioner-Appellant,
v.
Richard Brown, Respondent-Appellee.

          Argued September 28, 2016

         Appeal 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.

          Before Kanne, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         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 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.

         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.

         I. Factual and Procedural Background

         On 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).

         A. The Murder Trial of Joshua Love and Dentrell Brown

         In the 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 casings.

         Following 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.

         Brown 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.

         Morris 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.

         After 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.

         B. Direct & Collateral Review in the State Courts

         On 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.

         Brown 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.).

         C. Brown's Federal Habeas Petition

         Brown's 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.

         The 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."

         II. Analysis

         Brown's 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.

         Before 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.

         A. The Martinez-Trevino Doctrine Applies in Indiana

         On 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.

         1. The Martinez-Trevino Doctrine

         A 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.

         In 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.

         The 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 prisoners ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.