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Frentz v. Brown

United States Court of Appeals, Seventh Circuit

November 22, 2017

David Mark Frentz, Petitioner-Appellant,
Richard Brown, Respondent-Appellee.

          Argued October 25, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:13-cv-1311-TWP-DKL - Tanya Walton Pratt, Judge.

          Before Kanne and Sykes, Circuit Judges, and Darrow, District Judge. [*]

          Darrow, District Judge.

         David Frentz filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 after the Court of Appeals of Indiana affirmed the denial of his petition for postconviction relief in state court. That petition attacked Frentz's conviction for the January 24, 2005 murder of his housemate, Zackary Reynolds. Before his trial on that charge, Frentz had filed a notice that he would pursue a defense of not guilty by reason of insanity, but, after consulting with an expert, did not pursue the defense. Frentz was convicted by a jury of the murder, and of associated drug charges, and sentenced to 59 years of imprisonment. He appealed to the Court of Appeals of Indiana, which affirmed. He then filed his postconviction petition in Indiana court alleging ineffective assistance of counsel for, among other things, not having pursued the insanity defense. His petition was denied, and he appealed to the Court of Appeals of Indiana, which affirmed the denial. The Indiana Supreme Court denied transfer of the case, [1] and Frentz filed a petition for writ of habeas corpus in the Southern District of Indiana. The district court denied the petition, and declined to issue a certificate of appealability. This Court then granted the certificate, finding that Frentz had made a substantial showing of the denial of his right to effective assistance of counsel because counsel failed to pursue an insanity defense.

         Because the Indiana appellate court did not unreasonably apply federal law in denying Frentz's postconviction petition, we now affirm the district court's decision.

         I. Background[2]

         Frentz, who was 53, lived with Reynolds, 23, who worked on Frentz's farm in Orange County, Indiana. Frentz was an alcoholic and had been drinking heavily for 35 years; on Saturday, January 22, 2005, his doctor told him that he would die if he did not stop drinking. His doctor gave him medication to deal with delirium tremens, a symptom of alcohol withdrawal. He stopped drinking that day.

         On Sunday, January 23, Frentz ran errands, worked on a pickup truck with Reynolds at the house they shared, and then ran more errands. On his way back to the house Frentz stopped at a fast-food drive-through in Salem, Indiana, between 10:00 and 11:00 in the evening. During this time he talked on his cell phone with his friend Carl Brock. Frentz told Brock that he had been "feeling bad, " and had been having hallucinations, including, according to Brock "either light poles or salt shakers dancing or something like that ... dogs running across the road laughing at him and stuff like that." Worried, Brock asked Frentz to call him when he got home.

         Brock called Frentz an hour or two later. Frentz asked Brock and Brock's wife if either of them had heard from Dusty Austin, Frentz's ex-girlfriend. Frentz claimed to have been "fucked over" by a friend, Chuck Woolsey, who he now thought to be involved with Austin. According to Brock, Frentz went during this conversation from "feeling ill and hallucinating to someone who was very sober and [not] really talkative at all." Brock made some jokes, hoping to lighten the mood; instead, Frentz hung up. Brock tried calling him back immediately, with no luck.

         At about 3:30 a.m., Brock was able to reach Frentz on the phone. Frentz sounded "freaked out, " and told Brock to call the police. Frentz also said during this conversation that "he put PCP in that shit and people [are] up here to fuck with us." (Brock assumed this was in reference to Woolsey) During the conversation, Frentz was "hollering" at Reynolds, but Brock never heard Reynolds say anything back. When Brock asked to talk to Reynolds, Frentz hung up. When Brock's wife called Frentz back and asked to talk to Reynolds, Frentz hung up again.

         Sometime early that morning, two of Frentz's neighbors saw and heard Frentz's pickup truck speeding down the road. Frentz called 911 at about 5:30 a.m., and said that several people were trying to break into his house. The connection cut out several times, but Frentz conveyed that people had broken into his house, that one of them was shooting, that his friend had been shot in the chest but was still breathing, that the people were still in his home, that they were "trying to get in the windows, " and doors, and that he had "locked the door back." Police officers arrived at his house to find no signs of vehicle or foot traffic outside. Frentz was standing in his kitchen, looking disoriented and agitated. He opened the door for the officers, one of whom saw an SKS assault rifle lying on a kitchen chair. The police handcuffed Frentz, who was wearing only underwear and a t-shirt and was "sweating really bad." Frentz told the officers that motorcycle-riding Mexicans had broken into his house and that there was someone in his bed. There was no sign of anyone in Frentz's bed, or any struggle or forced entry but the officers found Reynolds, lying face-up in the hallway in a pool of blood, on top of a loaded .22 caliber rifle.

         He was dead, shot three times at close range. There were traces of Reynolds's DNA on Frentz's shirt. A bullet lodged near his spine was confirmed by forensic testing to have come from the SKS. There were four shell casings in the hallway of the same caliber as the SKS. There were three bullet-holes in the door Reynolds had been standing in front of when he was shot, and also several bullet-holes in Reynolds's bedroom window. More shell casings, of the same caliber, were nearby.

         Frentz told several stories about the events of that morning. First, he told officers at the scene that he had been asleep in his bedroom when he heard a scuffle at the other end of the house. He said he had grabbed the .22, walked down the hallway, and seen two Hispanic men leaving the house through the back door. He said that he had had seen Reynolds fighting with a third over the SKS, had put the .22 down and grabbed the other man, and then had heard two ...

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