Dentrell Brown v. Richard Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-1014

DENTRELL BROWN,

Petitioner-Appellant,

v.

RICHARD BROWN,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:13-cv-1981-JMS-DKL — Jane Magnus-Stinson, Chief Judge.

____________________

ARGUED SEPTEMBER 28, 2016 — DECIDED FEBRUARY 1, 2017

____________________

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-de-

fendant’s out-of-court confession is introduced in a joint trial.

2 No. 16-1014

See Bruton v. United States, 391 U.S. 123 (1968) (protecting co-

defendant from testimonial confessions of other co-defend-

ants). The district court denied the habeas petition, finding

that Brown had procedurally defaulted this claim for ineffec-

tive 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 peti-

tioners in Indiana who have substantial claims for ineffective

assistance of trial counsel that have been procedurally de-

faulted 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 as-

sistance 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 pe-

titions 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).

No. 16-1014 3

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, in-

vestigators began to rely on information from incarcerated in-

dividuals. On June 18, 2008, the State charged Brown with

murder.

Brown was then just thirteen years old, and Love was nine-

teen 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 con-

fessed separately to involvement in the murder. Testifying

first to his conversation with Love, Morris said that Love con-

fessed 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, Mor-

ris testified that Brown said he had struck Wenger with the

butt of a .45 caliber handgun, discharging one unintentional

4 No. 16-1014

shot. A critical feature of Morris’s testimony for Bruton pur-

poses 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, in-

cluding that the trial court abused its discretion when it de-

nied 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 testi-

mony 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 per-

suaded. It found no Bruton violation because Morris’s account

of Love’s confession to him never mentioned a third party pre-

sent 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 law-

yer raised a single issue in the operative petition: ineffective

assistance of trial counsel for having failed to move to sever

No. 16-1014 5

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 af-

firmed, 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 Mar-

tinez, 132 S. Ct. 1309, and Trevino, 133 S. Ct. 1911.

The district court held that Martinez and Trevino do not ap-

ply to § 2254 cases in Indiana, and thus Brown was not enti-

tled to attempt to overcome procedural default on his claim

for ineffective assistance of trial counsel. Brown v. Brown, No.

1:13-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 cer-

tificate 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.”

6 No. 16-1014

II. Analysis

Brown’s claim for ineffective assistance of trial counsel re-

quires 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 perfor-

mance 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 evi-

dentiary hearing on both claims for ineffective assistance, first

on the procedural default issue and then, if the default is ex-

cused, 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 Confron-

tation 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 in-

struction based on the Indiana Rules of Evidence would be

forfeited now on appeal. We disagree. Brown’s habeas peti-

tion 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 peti-

tion 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 evalu-

ated Brown’s claim separately from the Confrontation Clause

issue. Thus, petitioner’s specific claim—although not pre-

sented in the state courts—was not forfeited by any supposed

failure to raise it in the federal district court.

No. 16-1014 7

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 doc-

trine applies. We find that Indiana procedures governing in-

effective assistance of trial counsel claims fall into the cate-

gory 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 over-

come 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). Un-

til 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 con-

stitutional 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 pro-

ceeding, a procedural default will not bar a federal habeas

8 No. 16-1014

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 coun-

sel errs by failing to raise a claim for ineffective assistance of

trial counsel in the initial round of collateral review, it is un-

likely 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 mat-

ter of procedural design and systemic operation, denies a

meaningful opportunity to do so is a distinction without a dif-

ference.” Trevino, 133 S. Ct. at 1921. Examining Texas law, Tre-

vino observed that even though Texas did not require a defend-

ant 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, Indi-

ana does not always require prisoners to bring claims for in-

effective assistance of trial counsel on collateral review, so pe-

titioner Brown must depend on the Trevino extension of Mar-

tinez to overcome procedural default.

In dissent in Trevino, Chief Justice Roberts predicted accu-

rately a long process of state-by-state litigation on applying

No. 16-1014 9

Trevino. Id. at 1923 (Roberts, C.J., dissenting). At least eight cir-

cuits, including this one, have decided whether Trevino ap-

plies to specific jurisdictions. This court applied the Martinez-

Trevino doctrine to federal prisoners who bring motions for

post-conviction relief under § 2255. 1 Ramirez v. United States,

799 F.3d 845, 853 (7th Cir. 2015) (“[T]he federal courts have no

established procedure … to develop ineffective assistance

claims for direct appeal,” so “the situation of a federal peti-

tioner is the same as the one the Court described in Trevino.”);

see also Coleman v. Goodwin, 833 F.3d 537, 543 (5th Cir. 2016)

(Martinez-Trevino applies in Louisiana); Runningeagle v. Ryan,

825 F.3d 970, 981–82 (9th Cir. 2016) (Martinez-Trevino applies

in Arizona); Woolbright v. Crews, 791 F.3d 628, 636 (6th Cir.

2015) (Martinez-Trevino applies in Kentucky); Fowler v. Joyner,

753 F.3d 446, 463 (4th Cir. 2014) (North Carolina procedures

do “not fall neatly within Martinez or Trevino” and doctrine

applies only in certain circumstances); Sutton v. Carpenter, 745

F.3d 787, 795–96 (6th Cir. 2014) (Martinez-Trevino applies in

Tennessee); Sasser v. Hobbs, 735 F.3d 833, 852–53 (8th Cir. 2013)

(Martinez-Trevino applies to capital defendants in Arkansas).

1 On two occasions, we have also observed that the Martinez-Trevino

exception does not apply to the procedures that govern the typical inef-

fective assistance of trial counsel claim in Wisconsin courts. See Ramirez v.

United States, 799 F.3d 845, 851 (7th Cir. 2015) (“Wisconsin law treats post-

conviction relief in an unusual way, insofar as it allows defendants to raise

a claim of ineffectiveness of counsel simultaneously with a direct ap-

peal.”); Nash v. Hepp, 740 F.3d 1075, 1079 (7th Cir. 2014) (“Wisconsin law

expressly allows—indeed, in most cases requires—defendants to raise

claims of ineffective assistance of trial counsel as part of a consolidated

and counseled direct appeal, and provides an opportunity to develop an

expanded record.”). Our analysis here does not alter that analysis of Wis-

consin law.

10 No. 16-1014

Cf. Lee v. Corsini, 777 F.3d 46, 61 (1st Cir. 2015) (Martinez-Tre-

vino does not apply in Massachusetts); Fairchild v. Trammell,

784 F.3d 702, 721 (10th Cir. 2015) (Martinez-Trevino does not

apply in Oklahoma).

2. Claims for Ineffective Assistance of Trial Counsel in In-

diana

With Trevino as our guide, two characteristics of Indiana

practice—the “procedural design” and “systemic opera-

tion”—convince us that the Martinez-Trevino doctrine applies

in Indiana. Trevino, 133 S. Ct. at 1921. First, while Indiana law

does not always require claims for ineffective assistance of

trial counsel to be brought on collateral review, the Indiana

Supreme Court has adopted rules and doctrines that strongly

discourage any other path. Second, in actual practice, the In-

diana Supreme Court’s discouragement has worked to force

almost all such claims to wait for collateral review.

a. Procedural Design

The Indiana Supreme Court acted to clear up the law gov-

erning claims for ineffective assistance of trial counsel in

Woods v. State, 701 N.E.2d 1208 (Ind. 1998). After considering

alternative approaches to procedural default, the court con-

cluded “that the most satisfactory resolution of a variety of

competing considerations is that ineffective assistance may be

raised on direct appeal, but if it is not, it is available in post-

conviction proceedings irrespective of the nature of the issues

claimed.” Id. at 1216. A claim for ineffective assistance of

counsel is barred on collateral review if it was already raised

on direct appeal. Id. at 1220. Critical for our purposes, present-

ing a claim for ineffective assistance is an all-or-nothing prop-

osition in Indiana. A defendant may not present one specific

No. 16-1014 11

ground on direct appeal and wait to present another on col-

lateral review. Id.

The court in Woods explained that a claim for ineffective

assistance of trial counsel will ordinarily require evidence be-

yond the record of the conviction and so should ordinarily be

brought in a collateral post-conviction case where the defend-

ant can offer new evidence. Id. at 1216. The complicating fac-

tor here—which shifts Indiana from Martinez to Trevino—is

that Woods also recognized there may be an “exceptional case

in which the defendant prefers to adjudicate a claim of inef-

fective assistance before direct appeal remedies have been ex-

hausted.” Id. at 1219–20. Under these rare circumstances,

Woods explained, a procedure known in Indiana as the Davis-

Hatton procedure allows a convicted appellant to suspend or

terminate his direct appeal to pursue a petition for post-con-

viction relief. Id. at 1219, citing Davis v. State, 368 N.E.2d 1149

(Ind. 1977); Hatton v. State, 626 N.E.2d 442 (Ind. 1993); see also

Ind. R. App. P. 37; Peaver v. State, 937 N.E.2d 896, 899 (Ind.

App. 2010). The Davis-Hatton procedure might be appropriate

if the trial record itself supports an indisputable claim of inef-

fective assistance of trial counsel that will result in the imme-

diate release of a person who is in prison improperly.

If a trial court denies a Davis-Hatton petition, an appeal

from that post-conviction denial and the original direct ap-

peal will be consolidated but evaluated under separate stand-

ards of review. Peaver, 937 N.E.2d at 899–900; Slusher v. State,

823 N.E.2d 1219, 1222 (Ind. App. 2005); Dodd v. Knight, 533 F.

Supp. 2d 844, 852 (N.D. Ind. 2008). A defendant who uses the

Davis-Hatton procedure will be barred from asserting any

new claim for ineffective assistance on direct appeal, or in any

of the consolidated proceedings or additional post-conviction

12 No. 16-1014

proceedings that may follow. Peaver, 937 N.E.2d at 899. Most

helpful for the issue we face here, the Indiana Supreme Court

explained that the Davis-Hatton procedure is “not to be used

as a routine matter in adjudicating the issue of trial counsel’s

effectiveness.” Woods, 701 N.E.2d at 1220.

Like Texas in Trevino and Tennessee in Sutton, Indiana

“permits defendants to raise the claims on direct appeal.”

Compare Sutton, 745 F.3d at 791, quoting Trevino, 133 S. Ct. at

1918, with Woods, 701 N.E.2d at 1216, 1220. Because most

claims for ineffective assistance of trial counsel cannot be

shown within the four corners of the original trial court rec-

ord, and because of the presumption of competence that ap-

plies in Indiana courts, claims for ineffective assistance of trial

counsel brought on direct appeal “almost always fail.” Woods,

701 N.E.2d at 1216, quoting United States v. Taglia, 922 F.2d 413,

417–18 (7th Cir. 1991). Trevino made much the same point

about the need to present evidence outside the original trial

record. 133 S. Ct. at 1918.

Additional aspects of Indiana procedure align with other

aspects of Trevino. As in our federal cases, a defendant who

asserts a claim for ineffective assistance of trial counsel on di-

rect appeal may not relitigate the claim on collateral review.

Compare Ramirez, 799 F.3d at 853, with Woods, 701 N.E.2d at

1220. Like the federal rules we reviewed in Ramirez, Indiana’s

rule is even more restrictive than the Texas procedures in Tre-

vino. See Ramirez, 799 F.3d at 853. Also, Indiana does not allow

counsel on direct appeal from a conviction to use a motion to

correct errors to supplement the record to assert a claim for

ineffective assistance. Compare Woods, 701 N.E.2d at 1216,

with Trevino, 133 S. Ct. at 1918 (determining that a motion for

No. 16-1014 13

new trial is an inadequate vehicle for ineffective assistance of

trial counsel claims).

Moreover, because a Davis-Hatton petition in Indiana is a

collateral attack on a conviction, it does not provide, in the

Trevino Court’s words, “meaningful review” of an ineffective

assistance counsel claim on direct review: it simply is not di-

rect review. See Trevino, 133 S. Ct. at 1919. Perhaps most im-

portant, the Davis-Hatton procedure is neither “systematic”

nor “typical.” It is, in the words of Trevino, “special, limited,

… [and] rarely used.” Compare Woods, 701 N.E.2d at 1220,

with Trevino, 133 S. Ct. at 1919–21. Amicus Indiana Public De-

fender Council tells us that between 2008 and 2012, its attor-

neys filed approximately 2000 appeals and only four Davis-

Hatton petitions.

b. Systemic Operation

Indiana rules work together to make it unlikely that an In-

diana defendant will be able to raise adequately on direct ap-

peal a claim for ineffective assistance of trial counsel. The In-

diana Supreme Court said as much in Woods: “As a practical

matter,” the confluence of these rules “will likely deter all but

the most confident appellants from asserting any claim of in-

effectiveness on direct appeal.” 701 N.E.2d at 1220. As in Tre-

vino itself, “special, rarely used procedural possibilities” like

the Davis-Hatton procedure cannot overcome the Indiana

courts’ directives that the preferred forum for ineffective as-

sistance of trial counsel claims is post-conviction review. See

Trevino, 133 S. Ct. at 1920.

The Indiana courts, like the Texas courts in Trevino, rou-

tinely direct defendants to bring claims for ineffective assis-

tance of trial counsel on collateral review and warn against

14 No. 16-1014

bringing them on direct review. Compare Woods, 701 N.E.2d

at 1219–20 (“[A] postconviction hearing is normally the pre-

ferred forum to adjudicate an ineffectiveness claim.”), with

Trevino, 133 S. Ct. at 1919–20. The Indiana Supreme Court not

only has reinforced the preference for collateral review but

has gone so far as to decline addressing a defendant’s claim

for ineffectiveness of trial counsel actually presented on direct

appeal, believing it “preferable for the defendant to adjudi-

cate his claim … in a post-conviction relief proceeding.” McIn-

tire v. State, 717 N.E.2d 96, 102 (Ind. 1999); see also Landis v.

State, 749 N.E.2d 1130, 1132 (Ind. 2001).

The Indiana Court of Appeals has followed suit, routinely

issuing non-precedential decisions that echo the lesson of

Woods, especially when denying relief on direct appeal. E.g.,

Crockett v. State, 13 N.E.3d 556, 2014 WL 2202763, at *4 (Ind.

App. 2014) (“[I]t is well-settled that a post-conviction pro-

ceeding is generally the preferred forum,” even if “a criminal

defendant … is at liberty to elect whether to present this claim

on direct appeal or in post-conviction proceedings”); see also

Johnson v. State, 46 N.E.3d 499, 2016 WL 327985, at *2 (Ind.

App. 2016); Merriman v. State, 40 N.E.3d 1280, 2015 WL

5703912, at *5 n.3 (Ind. App. 2015); Beals v. State, 37 N.E.3d 977,

2015 WL 4105047, at *10 (Ind. App. 2015); Anderson v. State, 16

N.E.3d 488, 2014 WL 3511699, at *5 (Ind. App. 2014); Wine v.

State, 9 N.E.3d 771, 2014 WL 1266285, at *3 (Ind. App. 2014);

Reed v. State, 985 N.E.2d 1151, 2013 WL 1701879, at *3 (Ind.

App. 2013).

Like the Texas bar in Trevino, the Indiana criminal defense

bar “has taken this strong judicial advice seriously.” See Tre-

vino, 133 S. Ct. at 1920. In its annual training, amicus Indiana

No. 16-1014 15

Public Defender Council “consistently advises against appel-

late counsel presenting ineffective assistance claims on direct

appeal.” When a public defender handling a direct appeal

asked the Council if she should raise a claim for ineffective

assistance of trial counsel in the direct appeal, the responses

were best summarized by one that began, “NOOOOOO!!!”

Amicus Br. of Ind. Pub. Def. at 21a.

For these reasons, in the language of Trevino, “as a matter

of its structure, design, and operation,” the Indiana proce-

dural system “does not offer most defendants a meaningful

opportunity to present a claim of ineffective assistance of trial

counsel on direct appeal.” Trevino, 133 S. Ct. at 1921. The Mar-

tinez-Trevino form of cause to excuse procedural default is

available to Indiana defendants who seek federal habeas re-

lief. 2

B. Cause Under Martinez

In a state like Indiana where the Martinez-Trevino doctrine

can apply, procedural default in the state courts will not bar

federal habeas review when a petitioner can demonstrate

cause for the default. See Trevino, 133 S. Ct. at 1918; Martinez,

132 S. Ct. at 1318; Coleman, 501 U.S. at 747–48. To demonstrate

cause under Martinez-Trevino, the petitioner must show defi-

cient performance by counsel on collateral review as required

under the first prong of the Strickland analysis. Martinez, 132

S. Ct. at 1318; see Strickland v. Washington, 466 U.S. 668, 687

(1984). Actual resulting prejudice can be established with a

substantial claim of ineffective assistance of trial counsel that

2 On this issue, we respectfully disagree with both the district court

here and the Northern District of Indiana in Brown v. Superintendent, 996

F. Supp. 2d 704, 716–17 (N.D. Ind. 2014).

16 No. 16-1014

would otherwise have been deemed defaulted. See Detrich v.

Ryan, 740 F.3d 1237, 1245–46 (9th Cir. 2013) (observing that

this reading is required to square the requirement with the

structure of Martinez). Accordingly, to avoid procedural de-

fault, petitioner Brown must demonstrate that his collateral

review counsel was deficient and must make a substantial

claim of ineffective assistance of trial counsel. See Trevino, 133

S. Ct. at 1918, citing Martinez, 132 S. Ct. at 1318–19, 1320–21.

Petitioner Brown has made a strong enough showing of each

element to call for an evidentiary hearing in the district court.

1. Ineffective Assistance of Post-Conviction Relief Counsel

Brown claims that his lawyer in his post-conviction case

was deficient because she did not raise a claim that his trial

counsel was ineffective for failing to request a limiting in-

struction. To demonstrate that counsel’s performance was de-

ficient, the petitioner “must show that counsel’s representa-

tion fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. Judicial review of counsel’s perfor-

mance is “highly deferential,” with “every effort … made to

eliminate the distorting effects of hindsight.” Id. at 689.

The State has not directly addressed whether Brown’s col-

lateral review lawyer was ineffective. On this record, and

without having heard yet from the post-conviction attorney,

we find that petitioner Brown has offered evidence that his

post-conviction counsel’s representation fell below an objec-

tive standard of reasonableness so that he is entitled to an ev-

identiary hearing on the issue.

The amended complaint on collateral review made a sin-

gle allegation of error: trial counsel had been ineffective “for

failing to move for a severance of his trial from Petitioner’s

No. 16-1014 17

codefendant” as a remedy for a Bruton violation. The problem

with this claim, as the post-conviction courts held, was that

on his direct appeal Brown had already argued the joint trial

produced a Bruton violation. The state courts rejected that

claim, squarely and definitively. Even if we account for the

benefits of hindsight, a new claim built on the assumption of

a Bruton violation would seem to have had little or no chance

of success.

We recognize that the vast majority of claims for post-con-

viction relief are without merit, so an attorney’s failure to pre-

vail, or even pursuit of an unpromising claim, does not show

ineffective assistance. Also, the Supreme Court’s fundamental

point in Strickland about avoiding the distorting effects of

hindsight applies as much in the post-conviction process as in

any other. See Strickland, 466 U.S. at 689. A post-conviction at-

torney can and should use professional judgment in selecting

which claims and issues to raise, just as we expect from attor-

neys in direct appeals. See Morris v. Bartow, 832 F.3d 705, 709–

11 (7th Cir. 2016) (finding counsel’s performance competent

despite mixed record indicating possible coerced plea);

Vinyard v. United States, 804 F.3d 1218, 1225–27 (7th Cir. 2015)

(Strickland not applied unreasonably; counsel advised client

not to challenge guilty plea); Makiel v. Butler, 782 F.3d 882,

898–902 (7th Cir. 2015) (Strickland not applied unreasonably;

counsel selected issues for appeal and did not include an ad-

ditional obvious claim).

For purposes of applying Martinez and Trevino, the ap-

proach we take to claims of ineffective assistance of counsel

on direct appeal provides the best available guide. Pursuit of

unsuccessful arguments and claims does not show ineffective

assistance of counsel. But we may compare the claims actually

18 No. 16-1014

presented to those that might have been presented. Where

counsel chose to pursue just one issue that was a virtually cer-

tain loser, as in Shaw v. Wilson, a petitioner may show deficient

performance by showing that a much stronger claim or argu-

ment was available. 721 F.3d 908, 915 (7th Cir. 2013); see also

Vinyard, 804 F.3d at 1228; Makiel, 782 F.3d at 898–99.

Even without relying on the benefits of hindsight, peti-

tioner Brown makes a strong argument here that the one

claim counsel pursued in the post-conviction petition was

doomed from the beginning. The claim that counsel was inef-

fective by failing to move to sever Brown’s trial from Love’s

appears to have been built on the assumption that the joint

trial resulted in a Bruton violation. The state courts had al-

ready rejected that premise on direct appeal.

Petitioner argues that a viable ineffective assistance of trial

counsel claim could have been premised on failure to seek a

limiting instruction as to the hearsay Morris offered when tes-

tifying to his conversation with Love. See Ind. R. Evid. 801(c)

(defining hearsay), 802 (making hearsay inadmissible), and

105 (providing a limiting instruction when evidence is pre-

sented that is “admissible against a party or for a purpose—

but not against another party or for another purpose”). In con-

trast, the claim post-conviction review counsel presented in-

stead was barred by res judicata. We do not mean to imply that

we have reached a conclusion on the ultimate question of

counsel’s performance. As noted, no court has heard testi-

mony from Brown’s post-conviction counsel about the selec-

tion of issues and other factors that may affect the perfor-

mance issue under Strickland. By showing that another, much

stronger claim was available, however, petitioner has shown

he is entitled to an evidentiary hearing on that issue.

No. 16-1014 19

2. Substantial Underlying Claim for Ineffective Assistance

of Trial Counsel

Martinez also requires a petitioner to show “that the un-

derlying ineffective-assistance-of-trial-counsel claim is a sub-

stantial one, which is to say that the prisoner must demon-

strate that the claim has some merit.” Martinez, 132 S. Ct. at

1318–19. Martinez offered little guidance as to what is a “sub-

stantial” claim for these purposes. It provided only a “cf.” ci-

tation to Miller-El v. Cockrell, 537 U.S. 322 (2003), describing

the standards for certificates of appealability. 132 S. Ct. at

1319. Miller-El held that a certificate of appealability should

be granted when a substantial showing can be made “by

demonstrating that jurists of reason could disagree with the

district court’s resolution … or that jurists could conclude the

issues presented are adequate to deserve encouragement to

proceed further.” Miller-El, 537 U.S. at 327. “This threshold in-

quiry does not require full consideration.” Id. at 336.

The Martinez dissent predicted the problem we face here:

“to establish cause a prisoner must demonstrate that the inef-

fective-assistance-of-trial-counsel claim is ‘substantial,’ which

apparently means the claim has at least some merit. … The

Court does not explain where this substantiality standard

comes from.” Martinez, 132 S. Ct. at 1322 n.2 (Scalia, J., dis-

senting). Appellate opinions applying Martinez and Trevino

thus far offer limited further guidance. See Ramirez, 799 F.3d

at 854–56 (concluding that there was “some merit” to

Ramirez’s argument without delving further into the stand-

ard). See also Runningeagle, 825 F.3d at 983 (deciding case on

other grounds); Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir.

2012) (same); Flores v. Stephens, 794 F.3d 494, 505 (5th Cir. 2015)

20 No. 16-1014

(concluding “that reasonable jurists would not debate the dis-

trict court’s decision … because the claims are not ‘substantial’

within the meaning of Martinez”); Cox v. Horn, 757 F.3d 113,

119 (3d Cir. 2014) (applying standard for certificate of appeal-

ability); Detrich, 740 F.3d at 1245 (citing Miller-El standard);

Cook v. Ryan, 688 F.3d 598, 610 n.13 (9th Cir. 2012) (observing

that Martinez used Miller-El as “generally analogous sup-

port”).

In this case, petitioner argues that by granting a certificate

of appealability, we have already determined that his de-

faulted ineffective assistance of trial counsel claim is substan-

tial under Martinez. The State simply repeats that a “substan-

tial claim is one that has ‘some merit,’” then argues that peti-

tioner cannot satisfy cause and prejudice under Strickland. We

conduct a separate and deeper review of the record, beyond

our grant of a certificate of appealability, and find a substan-

tial ineffective assistance of trial counsel claim under Mar-

tinez.

We are guided by Strickland’s two-prong approach to

claims of ineffective assistance of counsel. Brown must ad-

dress whether his trial counsel’s performance was deficient,

falling below an objective standard of reasonableness. He

must also address whether the ineffective assistance caused

actual prejudice. Strickland, 466 U.S. at 687–88, 691–92. Sub-

stantiality is a threshold inquiry; full consideration of the mer-

its is not required. Miller-El, 537 U.S. at 336.

No. 16-1014 21

a. Substantial Showing of Trial Counsel’s Deficient

Performance

At trial, the State relied heavily on the testimony of Mario

Morris to place both Love and Brown at the scene of the mur-

der. Morris testified to separate conversations he had in the

Elkhart County Jail, one with Love and others with Brown.

Without his testimony, only circumstantial evidence and one

other reluctant witness implicated Brown.

Morris first testified to a conversation he had in Elkhart

County Jail with Love. Like many of the witnesses called by

the State, Morris suffered from credibility issues. He claimed

that over a card game in jail, Love admitted he was involved

in the murder of Wenger. According to Morris, Love told him

that he had left a woman’s apartment at the Middlebury

Apartments to sell a “gang pack” (something that appears to

be crack cocaine but is not) to a “white guy, Mr. Wenger.” Love

then told Morris he got in the back seat of a truck with Wenger

in the driver’s seat, and drove around a few blocks. Once

Wenger figured out the drugs were fake, an argument ensued.

Both men got out of the truck. Love then shot Wenger with a

nine-millimeter handgun. Afterwards, he got back into the

truck and pulled off to park behind some houses. Love came

back later to wipe down any fingerprints he might have left

on the truck.

Immediately after describing Love’s tale for the jury, Mor-

ris testified that he had a separate conversation with Brown,

also in the jail, who Morris said told a story very similar to

Love’s. Morris testified that Brown told him that he left a

woman’s apartment at the Middlebury Apartments on the

night of the murder. He was going to try to sell some fake

22 No. 16-1014

drugs. Morris was asked by the prosecutor, “And did they ac-

tually try to sell him those gang packs?” (emphasis added).

Morris responded, “Yes, sir.”

Then, Morris testified, Brown told him that he had gotten

out of the truck and hit Wenger on the head with his .45 cali-

ber handgun. The blow caused the gun to fire. Brown then got

in the truck and drove to an alley behind some houses. During

deliberations, the jury requested to review Morris’s testimony.

It was read back to them in the courtroom.

Morris’s testimony as to his conversation with Love, al-

though admissible against Love, was inadmissible hearsay as

offered against Brown. As petitioner’s brief emphasizes, “like

perhaps all jurisdictions, Indiana courts assume that jurors

follow their instructions.” If Brown’s trial attorney had re-

quested the limiting instruction to which Brown was probably

entitled, it would have left the prosecution to rely on the ar-

guably weak remainder of its case against Brown.

We are not convinced, on the limited record before us, that

the decision not to seek a limiting instruction was objectively

reasonable. Without the testimony of Morris’s conversation

with Love, which mirrored so closely the testimony of Mor-

ris’s conversation with Brown, none of the evidence presented

by the prosecution puts Brown at the murder scene with Love.

b. Substantial Showing of Prejudice

The additional evidence against Brown was not so strong

that his claim of actual prejudice is not substantial for pur-

poses of Martinez and Trevino. The State relies primarily on the

testimony of Kendrick Lipkins, who at trial was treated as a

witness hostile to the prosecution. He responded only reluc-

No. 16-1014 23

tantly with a single word, “Correct,” to a leading question re-

garding an overheard confession by Brown. Lipkins also tes-

tified that he had a separate conversation in a car with Love,

in Brown’s presence, about the disposal of a .45 caliber hand-

gun. But Lipkins, like most of the State’s witnesses, had seri-

ous credibility issues. He admitted to being interested in a re-

ward offered for information on the case, and he was willing

to cooperate with police in order to keep his brother, T.J. Lip-

kins, out of jail.

The remaining evidence against Brown was circumstantial

and not conclusive. A witness testified that a few weeks before

the shooting she saw Brown with what she thought was a

gun. Another witness testified that she saw both Love and

Brown around 10:30 p.m. the night of the shooting. That was

over three hours before Wenger was found, and she had a dif-

ficult time identifying Brown. A man testified that he saw two

boys walking by Wenger’s truck the morning after the shoot-

ing, but he could neither identify Brown nor say what the two

boys were doing. Two witnesses testified that Brown was try-

ing to sell a nine-millimeter handgun in the weeks following

the shooting. One of those witnesses testified that when

Brown was asked whether he murdered someone with the

gun, he laughed. Although at least sixteen fingerprints were

pulled from the truck, they were all Wenger’s. No guns were

recovered, but one .45 casing and one nine-millimeter casing

were found at the crime scene. Bullet fragments found in

Wenger’s body were from a single nine-millimeter bullet. The

evidence was legally sufficient to permit a jury to convict

Brown, but Brown has made a substantial claim of deficient

trial counsel and resulting prejudice. His claim for ineffective

assistance of trial counsel is not “wholly without factual sup-

port,” or lacking in all legal merit. Martinez, 132 S. Ct. at 1319.

24 No. 16-1014

If Brown’s theory is proven at an evidentiary hearing, he will

have made a successful ineffective assistance of trial counsel

claim. On the record before us, reasonable jurists “could dis-

agree … or … conclude the issues presented” in petitioner’s

brief and borne out in the trial transcript “are adequate to de-

serve encouragement to proceed further.” Miller-El, 537 U.S.

at 327. Brown has presented a substantial claim of ineffective

assistance of trial counsel, sufficient to avoid the procedural

default because he has demonstrated that the claim has some

merit. See Martinez, 132 S. Ct. at 1318–19.

* * *

In sum, the Martinez-Trevino doctrine applies to Indiana

procedures governing ineffective assistance of trial counsel

claims. Petitioner Brown has presented evidence of ineffective

post-conviction counsel and made a substantial claim of inef-

fective assistance of trial counsel. Accordingly, we REVERSE

the district court’s dismissal of Brown’s petition and

REMAND to the district court for an evidentiary hearing on

the issue of ineffective assistance of post-conviction counsel.

If the district court finds deficient performance by post-con-

viction counsel, Brown’s default will be excused, and he will

be entitled to an evidentiary hearing on the merits in the dis-

trict court for the underlying claim of ineffective assistance of

trial counsel for failure to request a limiting instruction.

No. 16-1014 25

SYKES, Circuit Judge, dissenting. “Federalism and comity

principles pervade federal habeas jurisprudence.” Johnson v.

Foster, 786 F.3d 501, 504 (7th Cir. 2015). “One of these princi-

ples is that ‘in a federal system, the States should have the

first opportunity to address and correct alleged violations of

[a] state prisoner’s federal rights.’” Id. (quoting Coleman v.

Thompson, 501 U.S. 722, 731 (1991)). The doctrine of proce-

dural default enforces this principle: A federal court will not

hear a state prisoner’s habeas claim unless the prisoner has

first presented it to the state courts for one full round of

review. Id. (citing Richardson v. Lemke, 745 F.3d 258, 268 (7th

Cir. 2014)).

Requiring state prisoners to exhaust state remedies

serves important federalism interests. The “state courts are

the principal forum for asserting constitutional challenges to

state convictions,” Harrington v. Richter, 562 U.S. 86, 103

(2011), and federal habeas review “frustrates both the States’

sovereign power to punish offenders and their good-faith

attempts to honor constitutional rights,” Calderon v.

Thompson, 523 U.S. 538, 555–56 (1998) (internal quotation

marks omitted). Federal habeas review of state convictions

disturbs the State’s “significant interest in repose for con-

cluded litigation … and intrudes on state sovereignty to a

degree matched by few exercises of federal judicial authori-

ty.” Richter, 562 U.S. at 103 (quotation marks omitted). Ac-

cordingly, “[f]ederal courts sitting in habeas are not an

alternative forum for trying facts and issues which a prison-

er made insufficient effort to pursue in state proceedings.”

Williams v. Taylor, 529 U.S. 420, 437 (2000).

The deferential standard of review adopted in the Anti-

terrorism and Effective Death Penalty Act of 1996

26 No. 16-1014

(“AEDPA”), 28 U.S.C. § 2254(d), protects these state interests.

So does the exhaustion requirement. For this reason, a

federal court may review a defaulted claim only in very

limited circumstances. The court may excuse a procedural

default only if the prisoner (1) demonstrates cause for the

default and consequent prejudice or (2) makes a convincing

showing of actual innocence, thus establishing that the

failure to review the defaulted claim would result in a

fundamental miscarriage of justice. Coleman, 501 U.S. at 749–

50; Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 2016).

“Cause” is an objective factor external to the defense that

impedes the presentation of the claim to the state courts.

Coleman, 501 U.S. at 753; Weddington v. Zatecky, 721 F.3d 456,

465 (7th Cir. 2013). Attorney error ordinarily doesn’t satisfy

the externality requirement because the defendant’s attorney

is his agent and the attorney’s actions are imputed to his

principal. Coleman, 501 U.S. at 753. But attorney error can

excuse a procedural default if the error “is an independent

constitutional violation,” i.e., a denial of the Sixth Amend-

ment right to the effective assistance of counsel. Id. at 755. In

that situation, the risk of error falls on the State as a corollary

to its constitutional duty to provide effective counsel. Id. at

754. It follows, then, that because there is no Sixth Amend-

ment right to counsel on collateral review, attorney negli-

gence at that stage is not cause to excuse a procedural de-

fault. Id. at 755.

As my colleagues explain, in Martinez v. Ryan, 132 S. Ct.

1309 (2012), the Supreme Court recognized a narrow excep-

tion to the Coleman rule. Luis Martinez, an Arizona prisoner,

alleged in his federal habeas petition that his trial counsel

was constitutionally ineffective in violation of the rule

No. 16-1014 27

articulated in Strickland v. Washington, 466 U.S. 668 (1984). He

had counsel for his initial collateral-review proceeding, but

his attorney did not present this claim to the state courts.

Martinez, 132 S. Ct. at 1314. Under Arizona law a claim of

ineffective assistance of trial counsel cannot be raised on

direct appeal; it must be presented in an initial collateral-

review proceeding. Id. The Court held that this procedural

requirement of Arizona law warranted an equitable excep-

tion to the Coleman rule that an error by postconviction

counsel is not cause to excuse a procedural default. Id. at

1315.

The Court held that if state law requires a prisoner to

bring a Strickland claim on collateral review, a default at that

stage of the criminal process does not preclude federal

habeas review if “there was no counsel or counsel in that

proceeding was ineffective.” Id. at 1320. To be eligible for

federal review, however, the defaulted Strickland claim must

be “a substantial one, which is to say that the prisoner must

demonstrate that the claim has some merit.” Id. at 1318. The

Court remanded Martinez’s case, directing the lower courts

to determine whether his state postconviction counsel was

constitutionally ineffective, and if so, whether the underly-

ing claim for ineffective assistance of trial counsel was

“substantial.” Id. at 1321.

The Court expanded the Martinez exception in Trevino v.

Thaler, 133 S. Ct. 1911 (2013), making it available to prisoners

in states that, though not expressly restricting Strickland

claims to collateral review, nonetheless have procedural

rules that foreclose the opportunity to develop the factual

record necessary to effectively litigate the claim on direct

review. Carlos Trevino was a Texas prisoner sentenced to

28 No. 16-1014

death for murder. He alleged in his federal habeas petition

that his trial counsel was ineffective for failing to adequately

investigate and present mitigating circumstances in the

penalty phase of his trial. Id. at 1915. The state trial judge

had appointed new counsel for Trevino’s direct appeal, but

the attorney did not raise this claim. The judge appointed

still another attorney for collateral review; that attorney too

failed to raise the claim.

Martinez could not help Trevino. Unlike Arizona, Texas

does not expressly require prisoners to reserve Strickland

claims for collateral review. Id. at 1918. But the state’s proce-

dural rules make it “all but impossible” to raise such a claim

on direct appeal. Id. at 1920. That’s because a claim of ineffec-

tive assistance of trial counsel almost always requires devel-

opment of a factual record, but the time constraints imposed

by Texas law (most notably, the time for preparation of the

transcript) eliminate the opportunity to make the necessary

record in conjunction with a direct appeal. Id. at 1918. That

is, under the procedural rules in place in Texas, it’s “‘virtual-

ly impossible for appellate counsel to adequately present an

ineffective assistance [of trial counsel] claim’ on direct ap-

peal.” Id. (quoting Robinson v. State, 16 S.W.3d 808, 810–11

(Tex. Crim. App. 2000)). For this reason the Texas Court of

Criminal Appeals—the state’s highest criminal tribunal—

“has explicitly stated that ‘[a]s a general rule’ the defendant

‘should not raise an issue of ineffective assistance of counsel

on direct appeal,’ but rather in collateral review proceed-

ings.” Id. at 1920 (quoting Mata v. State, 226 S.W.3d 425, 430,

n.14 (Tex. Crim. App. 2007)).

These two features of Texas law—a procedural system

that makes it virtually impossible to effectively litigate a

No. 16-1014 29

Strickland claim on direct review and an affirmative judicial

directive not to do so—put Trevino in much the same posi-

tion as Martinez. The Court concluded that the “procedural

design and systemic operation” of the criminal appeal

process in Texas was the functional equivalent of Arizona’s

rule barring Strickland claims on direct review. Id. at 1921

(“[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 oppor-

tunity to do so is a distinction without a difference.”). So the

Court extended the Martinez exception to prisoners in Texas

and other states where the “procedural framework, by

reason of its design and operation, makes it highly unlikely

in a typical case that a defendant will have a meaningful

opportunity to raise a claim of ineffective assistance of

counsel on direct appeal.” Id.

My colleagues conclude that Indiana is enough like Texas

to warrant extending Martinez-Trevino to defaulted Strickland

claims in habeas petitions brought by Indiana prisoners. I

disagree. Indiana does not by procedural rule make it virtu-

ally impossible to litigate a Strickland claim on direct appeal.

To the contrary, Indiana explicitly provides a process for doing

so: the so-called Davis/Hatton procedure, which “allows a

defendant to suspend the direct appeal to pursue an imme-

diate petition for postconviction relief” in order to develop

the factual record necessary to support a Strickland claim at

the direct-appeal stage. Woods v. State, 701 N.E.2d 1208, 1219

(Ind. 1998). The Indiana Supreme Court specifically reaf-

firmed the vitality of the Davis/Hatton procedure in Woods.

Id. at 1219–20.

30 No. 16-1014

Nor has Indiana’s highest tribunal gone as far as the

Texas Court of Criminal Appeals, which specifically directed

defendants not to raise these claims on direct review. In

Woods—the seminal case on this subject—the Indiana

Supreme Court explained that although collateral review is

“normally the preferred forum” for a claim of ineffectiveness

assistance of trial counsel, direct review remains an appro-

priate and workable option in light of the Davis/Hatton

procedure. Id. at 1219.

Here, in full, is the key passage in the state high court’s

opinion:

For the reasons outlined, a postconviction

hearing is normally the preferred forum to ad-

judicate an ineffectiveness claim. We nonethe-

less agree that potential for administrative in-

convenience does not always outweigh the

costs of putting off until tomorrow what can be

done today: “If there is no reason for delay in

presenting a claim, the delay should not be

countenanced, for there is a considerable social

interest in the finality of criminal proceedings.”

[U.S. v.] Taglia, 922 F.2d [413,] 418 [7th Cir.

1991]. If we are dealing with an improperly in-

carcerated defendant, the cause of justice is

plainly better served by making that determi-

nation as soon as possible. The same is true

even if a retrial is required. Resolving record-

based ineffectiveness claims on direct review

also has some doctrinal appeal because it is

more consistent with the residual purpose of

postconviction proceedings. Langley [v. State],

No. 16-1014 31

267 N.E.2d [538,] 541 [Ind. 1971] (“[T]he per-

missible scope of review on direct appeal is

well defined and broader than that permitted

by collateral attack through post conviction re-

lief.”). These considerations can be largely met

under a procedure that allows a defendant to

suspend the direct appeal to pursue an imme-

diate petition for postconviction relief. Davis v.

State, 368 N.E.2d 1149 (1977); see also Hatton v.

State, 626 N.E.2d 442 (Ind. 1993) (reiterating vi-

tality of Davis procedure). This should cover

the exceptional case in which the defendant

prefers to adjudicate a claim of ineffective as-

sistance before direct appeal remedies have

been exhausted. Because of the Davis proce-

dure, the direct appeal is not necessarily an ob-

stacle to speedy adjudication of the adequacy

of the representation, as recent cases in which

the procedure was invoked for that purpose

demonstrate. See Coleman v. State, 694 N.E.2d

269 (Ind. 1998); Brown v. State, 691 N.E.2d 438

(Ind. 1998). Although not to be used as a rou-

tine matter in adjudicating the issue of trial

counsel’s effectiveness, a Davis request may be

appropriate “where the claim asserted argua-

bly requires a certain level of fact finding not

suitable for an appellate court.” Lee v. State,

694 N.E.2d 719, 721 n.6 (Ind. 1998), petition for

cert. filed, 67 U.S.L.W. 3362 (U.S. Sept. 24, 1998)

(No. 98–6205).

Id. at 1219–20 (footnote omitted).

32 No. 16-1014

The state supreme court went on to fashion a rule against

claim splitting, holding that all allegations of trial counsel’s

ineffectiveness must be consolidated in a single proceeding.

More specifically, the court said that “[t]he specific conten-

tions supporting the claim … may not be divided between

the two proceedings.” Id. at 1220. It’s a strong rule of preclu-

sion; if the defendant raises the issue on direct review, he

may not do so again in collateral proceedings. Id. The court

acknowledged the likelihood that this “all or nothing”

requirement would channel many Strickland claims to collat-

eral review: “As a practical matter, this rule will likely deter

all but the most confident appellants from asserting any

claim of ineffectiveness on direct appeal. It will certainly

deter some.” Id. Still, the court held—unequivocally—that

“concerns for prompt resolution of claims lead us to permit

ineffective assistance to be raised [on direct appeal] within or

without the procedure available pursuant to Davis.” Id.

So Indiana offers defendants a true choice—direct appeal

or collateral review—and either forum is a procedurally

viable option for adjudicating a Strickland claim. Indeed,

Woods was explicit on this point. “The defendant must

decide the forum for adjudication of the issue—direct appeal

or collateral review.” Id. In sharp contrast to Texas, both

options are fully open in Indiana, and the state provides a

meaningful opportunity to litigate the issue at either stage.

This takes Indiana outside the rule and rationale of Trevino.

My colleagues focus on the state high court’s strong pref-

erence for reserving Strickland claims for collateral review, a

preference apparently reinforced by the lower courts and

generally followed by the criminal defense bar. Majority Op.

at pp. 13–15. That’s not enough to bring Indiana within the

No. 16-1014 33

ambit of Trevino. The Supreme Court justified extending

Martinez to Texas prisoners primarily because that state’s

procedural rules make it virtually impossible to effectively

raise a Strickland claim on direct appeal. Trevino, 133 S. Ct. at

1918–19. These procedural barriers, in turn, have led Texas

courts to admonish defendants not to bring these claims on

direct review. It’s true that the Court spent several para-

graphs discussing this “strong judicial advice.” Id. at 1920.

But the advice of the Texas judiciary played only a support-

ing role in the Court’s decision; it certainly wasn’t sufficient

on its own to support the expansion of Martinez.

Moreover, unlike the Texas Court of Criminal Appeals,

the Indiana Supreme Court has not directed defendants to

refrain from bringing claims of trial counsel’s ineffectiveness

on direct review; it has said, rather, that collateral review is

“normally the preferred forum” for these claims. Woods,

701 N.E.2d at 1219. Indeed, as the passage quoted above

makes clear, one of the main points of the court’s decision in

Woods was to preserve the direct-review option and high-

light the availability of the Davis/Hatton procedure for

defendants who are concerned about delay but need to make

a factual record before bringing a Strickland claim on direct

review.

In short, my colleagues’ decision is not so much an appli-

cation of Trevino as an unwarranted expansion of it. This has

real consequences for criminal litigation in Indiana, for

federal habeas review of Indiana convictions, and ultimately

for the relationship between the federal and state courts. It is

by now canonical that federal habeas review of state convic-

tions is extremely deferential. Under AEDPA the state court’s

factual findings are presumed to be correct, § 2254(e)(1), and

34 No. 16-1014

a federal court may not grant habeas relief unless the state

court’s adjudication of a federal claim was contrary to, or an

unreasonable application of, clearly established federal law

as determined by the Supreme Court, § 2254(d). As the

petitioner’s counsel acknowledged in oral argument,

Martinez-Trevino creates a moral hazard in the state postcon-

viction process, even where by its terms the doctrine clearly

applies. If a prisoner complies with the exhaustion require-

ment and presents his Strickland claim to the state courts,

AEDPA’s highly deferential standard of review applies. If

instead he defaults the claim and the Martinez-Trevino excep-

tion applies, the Strickland claim gets plenary review in

federal court. Given these perverse incentives, we should be

wary of expanding the doctrine beyond the limits of its

rationale.

As a result of today’s decision, the Indiana district courts

will be deluged with defaulted Strickland claims. It is an

unfortunate reality in postconviction litigation that ordinary

claims of trial error can be easily repackaged as claims of

ineffective assistance of trial counsel. Now that Indiana

prisoners may use Martinez-Trevino, Indiana district judges

will routinely have to contend with the two gateway ques-

tions that unlock the door to plenary review of defaulted

Strickland claims. A federal judge will have to decide—de

novo—whether the prisoner’s postconviction counsel was

ineffective, and if so, whether the underlying Strickland claim

is substantial. An affirmative answer means full federal

review of the defaulted claim unburdened by AEDPA’s

deferential standard of review.

This is a serious intrusion on federalism interests. I return

to where I started: The “state courts are the principal forum

No. 16-1014 35

for asserting constitutional challenges to state convictions.”

Richter, 562 U.S. at 103. That will no longer be true in Indiana

for at least some Strickland claims. After today’s decision, the

federal courts, not the state courts, will be the primary forum

for more constitutional challenges to state convictions. That

result would be unavoidable if Martinez and Trevino inescap-

ably applied. But they do not inescapably apply. I respectful-

ly dissent.