Opposition Brief — Richard Brown, Warden, Petitioner v. Dentrell Brown
Supreme Court briefFeb 21, 2018
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No. 17-887
In the Supreme Court of the United States
RICHARD BROWN, WARDEN,
Petitioner,
v.
DENTRELL BROWN,
Respondent.
On Petition for a Writ of Certiorari to
the United States Court of Appeals for
the Seventh Circuit
BRIEF FOR RESPONDENT IN OPPOSITION
MICHAEL K. AUSBROOK ANDREW J. PINCUS
Counsel of Record
P.O. Box 1554
Bloomington, IN 47402 CHARLES A. ROTHFELD
PAUL W. HUGHES
(812) 322-3218
MICHAEL B. KIMBERLY
EUGENE R. FIDELL
Mayer Brown LLP
Yale Law School
1999 K Street, NW
Supreme Court Clinic
Washington, DC 20006
127 Wall Street
(202) 263-3000
New Haven, CT 06511
apincus@mayerbrown.com
(203) 432-4992
Counsel for Respondent
i
QUESTION PRESENTED
Whether the Seventh Circuit correctly concluded
that Indiana’s procedures governing claims of ineffective assistance of trial counsel “do[] not offer most
defendants a meaningful opportunity to present a
claim of ineffective assistance of trial counsel on direct appeal.” Trevino v. Thaler, 569 U.S. 413, 428
(2013).
ii
TABLE OF CONTENTS
Page
Question Presented ..................................................... i
Table of Authorities................................................... iii
Statement ....................................................................1
A. Legal Background.............................................1
B. Factual Background .........................................5
C. Proceedings Below. ...........................................6
Reasons for Denying the Petition ...............................8
A. The Courts Of Appeals Apply The Same
Test In Assessing States’ Procedures
Under Martinez And Trevino. ..........................9
1. Judicial direction.......................................10
2. Actual use. .................................................11
3. Timing........................................................11
4. Counsel. .....................................................12
B. The Court Below Correctly Held That
Trevino Applies To Indiana Ineffective
Assistance Claims...........................................13
1. The Davis-Hatton process is a
mechanism for expedited collateral
review, and is therefore irrelevant to
the Trevino inquiry. ..................................15
2. The structure and operation of the
Davis-Hatton procedure make it
virtually impossible to raise
ineffective assistance claims.....................18
Conclusion .................................................................23
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Brown v. State,
2016 WL 3556267 (Ind. Ct. App. 2016)...............15
Bruton v. United States,
391 U.S. 123 (1968)................................................6
Coleman v. Goodwin,
833 F.3d 537 (5th Cir. 2016)................................11
Coleman v. Thompson,
501 U.S. 722, (1991)...............................................1
Commonwealth v. Zinser,
847 N.E.2d 1095 (Mass. 2006).............................22
Davis v. State,
368 N.E.2d 1149 (Ind. 1977)......................4, 18, 20
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004)....................................................9
Fairchild v. Trammell,
784 F.3d 702 (10th Cir. 2015)...................... passim
Fowler v. Joyner,
753 F.3d 446 (4th Cir. 2014)..................................2
Landis v. State,
749 N.E.2d 1130 (Ind. 2001)................................14
Lee v. Corsini,
777 F.3d 46 (1st Cir. 2015) .......................... passim
Lewis v. State,
929 N.E.2d 261 (Ind. Ct. App. 2010) ...................15
Martinez v. Ryan,
566 U.S. 1 (2012).......................................... passim
Mata v. State,
226 S.W.3d 425 (Tex. Crim. App. 2007) ..............20
iv
TABLE OF AUTHORITIES—continued
Page(s)
McIntire v. State,
717 N.E.2d 96 (Ind. 1999)....................................14
Nash v. Hepp,
740 F.3d 1075 (7th Cir. 2014)..............................21
Peaver v. State,
937 N.E.2d 896 (Ind. Ct. App. 2010) .........5, 16, 17
Perez v. State,
748 N.E.2d 853 (Ind. 2001)..................................15
Pryor v. State,
973 N.E.2d 629 (Ind. Ct. App. 2012) ...................15
Ramirez v. United States,
799 F.3d 845 (7th Cir. 2015)..........................10, 11
Runningeagle v. Ryan,
825 F.3d 970 (9th Cir. 2016)............................2, 10
Sasser v. Hobbs,
735 F.3d 833 (8th Cir. 2013)................................12
Slusher v. State,
823 N.E.2d 1219 (Ind. Ct. App. 2005) .......4, 16, 18
State v. Brown,
2009 WL 2844532 (Ind. Cir. 2009) ........................5
Sutton v. Carpenter,
745 F.3d 787 (6th Cir. 2014)..........................10, 12
Thompson v. State,
671 N.E.2d 1165 (Ind. 1996)............................4, 18
Trevino v. Thaler,
569 U.S. 413 (2013)...................................... passim
United States v. Taglia,
922 F.2d 413 (7th Cir. 1991)................................14
v
TABLE OF AUTHORITIES—continued
Page(s)
Wainwright v. Sykes,
433 U.S. 72 (1977)..................................................1
Williams v. State,
983 N.E.2d 661 (Ind. Ct. App. 2013) ...................15
Wilson v. Commonwealth,
975 S.W.2d 901 (Ky. 1998)...................................10
Woods v. State,
701 N.E.2d 1208 (Ind. 1998)........................ passim
Woolbright v. Crews,
791 F.3d 628 (6th Cir. 2015)....................10, 11, 12
Statutes and Rules
28 U.S.C. § 2254 ......................................................1, 7
Ind. Rules of Post-Conviction Remedies, § 8 ........4, 16
Ind. R. App. P. 45 ......................................................19
Mass. Gen. Laws Ch. 278..........................................21
Mass. R. App. P. 19 ...................................................19
Okla. R. Ct. Crim. App. 9.3(A) ..................................19
Okla. Stat. tit. 21, § 701.13(D)..................................19
STATEMENT
A. Legal Background.
1. Federal Habeas. A federal court generally may
not review on habeas a claim not addressed by a
state court because of a procedural default by the petitioner. See, e.g., Wainwright v. Sykes, 433 U.S. 72
(1977) (holding that 28 U.S.C. § 2254 precludes federal review of procedurally defaulted state claims).
In Coleman v. Thompson, this Court held that a petitioner can overcome procedural default if he can
show cause for the default and prejudice from a violation of federal law. 501 U.S. 722, 750 (1991).
Martinez v. Ryan applied Coleman in the context
of ineffective assistance of counsel claims, holding
that “[i]nadequate assistance of counsel at initialreview collateral proceedings may establish cause for
a prisoner’s procedural default of a claim of ineffective assistance at trial.” 566 U.S. 1, 9 (2012). The
Court explained that if a State channels initial review of ineffectiveness claims into collateral proceedings, a lawyer’s failure to raise such a claim during
those collateral proceedings could deprive a defendant of any consideration of that claim on the merits.
Id. at 10 (“When an attorney errs in initial-review
collateral proceedings, it is likely that no state court
at any level will hear the prisoner’s claim.”). Because
Arizona required claims of ineffective assistance of
counsel at trial to be raised in a collateral proceeding, the Court held that inadequate assistance of
counsel in that collateral proceeding provided the
“cause” necessary to empower a federal habeas court
to address the merits of the claim of ineffective assistance of counsel at trial. Id. at 4, 9.
2
The year after its ruling in Martinez, the Court
in Trevino v. Thaler held that the Martinez rule applies not only to those jurisdictions that prohibit
claims of ineffective assistance of trial counsel from
being raised on direct review, but also to a jurisdiction that “in theory grants permission” to present on
direct review ineffective assistance of counsel at trial
but, “as a matter of procedural design and systemic
operation, denies a meaningful opportunity to do so.”
569 U.S. 413, 429 (2013). The Court determined that
the Martinez rule applies to ineffective assistance
claims in Texas because the “structure and design of
the Texas system in actual operation” made it “virtually impossible” for an ineffective assistance claim
to be raised on direct appeal. Id. at 417.
Several courts of appeals have applied Martinez
and Trevino to determine whether particular States’
procedural systems qualify for the procedural default
exception defined by Martinez and Trevino. This
Court has not granted review of any of those statespecific inquiries. See, e.g., Runningeagle v. Ryan,
825 F.3d 970 (9th Cir. 2016), cert. denied, 137 S. Ct.
1439 (2017) (holding that Martinez-Trevino applies
to Arizona); Fairchild v. Trammell, 784 F.3d 702
(10th Cir. 2015), cert. denied, 136 S. Ct. 835 (2016)
(holding that Martinez-Trevino does not apply to Oklahoma); Fowler v. Joyner, 753 F.3d 446 (4th Cir.
2014), cert. denied, 135 S. Ct. 1530 (2015) (holding
that Martinez-Trevino applies in certain circumstances in North Carolina).
2. Indiana’s Procedures for Raising Ineffective
Assistance of Counsel Claims. Indiana permits defendants to raise claims of ineffective assistance of
trial counsel on either direct or collateral review. The
Indiana Supreme Court has stated that “a post-
3
conviction hearing is normally the preferred forum to
adjudicate an ineffectiveness claim.” Woods v. State,
701 N.E.2d 1208, 1219 (Ind. 1998).
Ineffective assistance of trial counsel claims
raised on direct appeal are subject to several significant procedural constraints. First, the defendant is
limited to the trial record—he or she may not use a
motion to correct error to supplement the record in
support of an ineffectiveness claim. Id. at 1216-1217.
Second, the defendant may not split ineffectiveness
claims, raising record-based claims on direct appeal
while reserving for collateral review those claims
that require additional factual development. Id. at
1220 (“The specific contentions supporting the [ineffectiveness] claim, however, may not be divided between the two proceedings.”). If the defendant raises
any ineffective assistance of trial counsel claim on
direct appeal, “the issue will be foreclosed from collateral review.” Ibid.
Indiana law provides that post-conviction collateral challenges may be instituted in two ways: either
(1) by initiating a collateral review proceeding after
the direct appeal is concluded; or (2) by requesting
that the Court of Appeals dismiss or suspend the direct appeal and remand the case to the trial court so
that a collateral review proceeding may be instituted
prior to disposition of the direct appeal, with the trial
court’s decision in the collateral review proceeding
considered by the appellate court in tandem with the
direct appeal. Woods, 701 N.E.2d at 1219. The Indiana Supreme Court has stated that the second option
is “not to be used as a routine matter in adjudicating
the issue of trial counsel’s effectiveness.” Id. at 1220.
This second option—labeled the “Davis-Hatton”
procedure after the relevant Indiana Supreme Court
4
decisions—is initiated by filing a motion with the
state court of appeals requesting that the defendant’s
direct appeal be suspended or dismissed and that the
case be remanded to the trial court. Slusher v. State,
823 N.E.2d 1219, 1222 (Ind. Ct. App. 2005) (“[T]he
Davis/Hatton procedure involves a termination or
suspension of a direct appeal already initiated, upon
appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in
the trial court.”).
“The appellate court preliminarily screens the
motions and remands to the trial court those cases in
which an arguably meritorious motion is sought to be
made.” Davis v. State, 368 N.E.2d 1149, 1151 (Ind.
1977); see also Thompson v. State, 671 N.E.2d 1165,
1168 n.2 (Ind. 1996) (“Finding that the appellant had
failed to make any showing that his claim of ineffective assistance of counsel has a substantial likelihood
of success at trial, we denied his [Davis-Hatton] petition, and this appeal ensued.”).
If the court of appeals grants the Davis-Hatton
petition, the case is remanded to the trial court,
where the defendant then files his or her petition for
post-conviction relief. Woods, 701 N.E.2d at 1219.
The defendant must raise all available grounds for
post-conviction relief in this original post-conviction
petition. Ind. Rules of Post-Conviction Remedies, § 8,
perma.cc/X78R-H8HX.
If, after a full evidentiary hearing, the petition
for post-conviction relief is denied, “an appeal from
that post-conviction denial and the original direct
appeal will be consolidated but evaluated under separate standards of review.” Pet. App. 12a. In particular, a defendant wishing to appeal claims raised in
the petition for post-conviction relief “faces the rigor-
5
ous burden of showing that the evidence as a whole
leads unerringly and unmistakably to a conclusion
opposite to that reached by the court.” Peaver v.
State, 937 N.E.2d 896, 900 (Ind. Ct. App. 2010) (quotation marks, brackets, and citation omitted).
The Davis-Hatton procedure is rarely used. A
group of Indiana public defenders informed the court
below that between 2008 and 2012, its attorneys filed
approximately 2,000 appeals and only four DavisHatton petitions. Pet. App. 14a.
The Indiana Court of Appeal’s 2016 report recites
that the Court of Appeals disposed of 1,031 direct
criminal appeals in 2016, only two of which it disposed of “by order.” Court of Appeals of Ind., 2016
Annual Report 2, perma.cc/7UVF-6FRD. Even if one
assumes that these two cases were cases in which a
Davis-Hatton petition had been filed, and the appeal
was suspended or terminated, that means the DavisHatton procedure was successfully invoked in at
most 0.2% of the direct criminal appeals disposed of
by that court in 2016.
B. Factual Background
On March 5, 2009, fourteen-year-old Dentrell
Brown was sentenced to 60 years in prison on his
homicide conviction. State v. Brown, No. 20C010806-MR-00002, 2009 WL 2844532 (Ind. Cir. Ct.
Mar. 5, 2009).
There was no forensic evidence tying Brown to
the crime, a murder that occurred during an alleged
drug sale. Pet. App. 3a. Instead, the State relied
principally on the testimony of jail house informer
Mario Morris. Ibid. Morris claimed that Brown and
his co-defendant, Joshua Love, had both confessed to
6
the murder in separate conversations with Morris.
Ibid.
Morris’s testimony about these conversations
was not consistent with the State’s theory of the
case. See Pet. 5 (characterizing Morris’s testimony as
“almost identical [], but with significant differences”).
Morris’s account of Love’s confession included no
mention of Brown or anyone else having been present at the shooting. Pet. App. 94a-95a. Morris’s account of Brown’s confession, moreover, included no
mention of Love or anyone else having been present
at the shooting. Id. at 95a.
After Morris testified, both Brown and Love
moved for a mistrial based on Bruton v. United
States, 391 U.S. 123 (1968). Pet. App. 4a. The trial
judge denied their motions and both Love and Brown
were convicted of murder (Brown on a theory of accomplice liability). Ibid.
C. Proceedings Below.
Brown raised three claims on direct appeal, including whether the trial court erred in denying the
mistrial motion. Pet. App. 4a. The Indiana Court of
Appeals denied relief on all counts. Id. at 103a.
Brown then filed a petition for post-conviction relief asserting that his trial counsel provided ineffective representation by failing to move to sever Love’s
trial from Brown’s. Pet. App. 87a. The Indiana Court
of Appeals affirmed the denial of relief on that claim.
Ibid.
Brown next filed a habeas petition in federal district court raising three issues, including an ineffective assistance of counsel claim based on trial counsel’s failure to request an instruction limiting the use
of Love’s statement, offered through Morris, to Love.
7
Pet. App. 75a, 77a. Brown argued that he should be
given the opportunity to overcome procedural default
under Martinez and Trevino. Id. at 77a-78a. The district court dismissed all of his claims without holding
an evidentiary hearing. Id. at 69a-73a.
The court of appeals reversed and remanded, ordering the district court to conduct an evidentiary
hearing on Brown’s ineffective assistance of counsel
claim. Pet. App. 6a. In doing so, the court held that
“the rule established in Martinez and Trevino applies
to § 2254 cases in Indiana so that [Brown] may try to
overcome the procedural default of his claim for ineffective assistance of trial counsel.” Id. at 7a
Applying the test prescribed by this Court in
Trevino, the Seventh Circuit determined that “two
characteristics of Indiana practice—the ‘procedural
design’ and ‘systemic operation’—convince us that
the Martinez-Trevino doctrine applies in Indiana.”
Pet. App. 11a.
The court pointed to several factors that force
almost all ineffective assistance of trial counsel
claims in Indiana into collateral review. For example, “presenting a claim for ineffective assistance is
an all-or-nothing proposition in Indiana” because a
defendant cannot present one ground on direct review and another on collateral review. Pet. App. 11a12a. And Indiana does not allow counsel on direct
appeal to use a motion to correct errors to supplement the record. Pet. App. 14a. The court concluded
that “Indiana rules work together to make it unlikely
that an Indiana defendant will be able to raise adequately on direct appeal a claim for ineffective assistance of trial counsel.” Pet. App. 14a.
8
The court also found it significant that Indiana
courts “routinely direct defendants to bring claims
for ineffective assistance of trial counsel on collateral
review and warn against bringing them on direct review.” Pet. App. 15a.
Turning to the Davis-Hatton procedure, the court
of appeals observed that, because it is a means of advancing the timing of collateral review proceedings,
it could not possibly supply “meaningful” direct review of an ineffective assistance of trial counsel
claim. Pet. App. 14a.
The court of appeals further determined that
Brown had sufficiently alleged cause for failing to
raise the ineffective assistance claim on collateral review in state court, holding that “Brown has offered
evidence that his post-conviction counsel’s representation fell below an objective standard of reasonableness so that he is entitled to an evidentiary hearing
on the issue.” Pet. App. 18a. It also found that the
underlying ineffective assistance of trial counsel
claim was substantial. Id. at 23a-26a.
Judge Sykes dissented, stating that the DavisHatton procedure furnishes sufficient opportunity to
develop the factual record necessary to support an
ineffectiveness claim at the direct appeal stage. Pet.
App. 32a. Judges Sykes, Flaum, and Easterbook dissented from the denial of rehearing en banc. Id. at
39a-40a.
REASONS FOR DENYING THE PETITION
The court of appeals’ decision does not conflict
with any decision of this Court or of another lower
court. Every court of appeals to consider whether the
Martinez-Trevino exception applies to ineffective assistance of trial counsel claims in a particular State
9
has utilized a totality-of-the-circumstances test
based on an examination of the same factors.
The Seventh Circuit correctly applied that test to
Indiana’s procedural system. This Court’s “custom on
questions of state law ordinarily is to defer to the interpretation of the Court of Appeals for the Circuit in
which the State is located.” Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 16 (2004) (citation omitted). And the application of Trevino turns almost entirely on interpreting state law. Review by this Court
is not warranted.
A. The Courts Of Appeals Apply The Same
Test In Assessing States’ Procedures
Under Martinez And Trevino.
Every court of appeals to apply the MartinezTrevino test to a State’s procedural framework for
asserting ineffective assistance of trial counsel
claims has utilized the same test, based upon the factors that this Court canvassed in determining
whether Texas’s procedures made it “virtually impossible for appellate counsel to adequately present
an ineffective assistance of trial counsel claim on direct review.” Trevino v. Thaler, 569 U.S. 413, 423
(2013) (quotation marks, brackets, and citation omitted).
Courts assess (1) the extent to which state courts
direct these claims to a particular procedure; (2) the
frequency with which the procedures are actually
used; (3) the time available to a defendant to invoke
the procedures; and (4) the continuity of counsel from
trial to the various post-trial procedures. No one factor is determinative: courts evaluate the totality of
the circumstances in concluding whether it is “virtu-
10
ally impossible” to present the claim on direct review.
1. Judicial direction.
Trevino considered whether Texas’s procedures
“would create significant unfairness * * * because
[the State’s] courts in effect have directed defendants
to raise claims of ineffective assistance of trial counsel on collateral, rather than direct, review.” Id. at
425-426. Courts of appeals therefore look to the opinions of state appellate courts to determine whether
they have directed claims of ineffective assistance of
counsel to collateral review proceedings.
For example, in Runningeagle v. Ryan, 825 F.3d
970 (9th Cir. 2016), the Ninth Circuit observed that
the Arizona Supreme Court “strongly urged” defendants to bring ineffective assistance of counsel claims
in collateral review proceedings. Id. at 980.1 The
Sixth Circuit did the same in Sutton v. Carpenter,
where the court explained that “the message overwhelmingly communicated [to Tennessee defendants] is that the claims are best resolved, with least
risk to the defendant, in post-conviction proceedings.” 745 F.3d 787, 795 (6th Cir. 2014). That court
reached the same conclusion regarding Kentucky
procedures, explaining that “Kentucky courts have
noted ‘the danger in raising an ineffective assistance
of counsel claim on direct appeal.’” Woolbright v.
Crews, 791 F.3d 628, 635 (6th Cir. 2015) (quoting
Wilson v. Commonwealth, 975 S.W.2d 901, 904 (Ky.
1998)). See also Ramirez v. United States, 799 F.3d
1 As the court of appeals explained (see 825 F.3d at 980), the
relevant events in Runningeagle occurred before the Arizona
Supreme Court held that ineffective assistance of trial counsel
claims must be asserted in collateral review proceedings.
11
845, 853 (7th Cir. 2015) (holding that MartinezTrevino applies to the federal system, pointing out
that “the [Supreme] Court criticized the practice of
bringing these claims on direct appeal”).
2. Actual use.
Courts also consider the frequency with which
nominally available procedures are actually used. As
this Court recognized in Trevino, the technical availability of an obscure and inaccessible procedure for
asserting an ineffective assistance claim on direct
appeal does not mean there is an opportunity for
meaningful review on direct appeal. See Trevino, 569
U.S. at 427 (“[T]he procedural possibilities to which
Texas now points seem special, limited in their application, and, as far as we can tell, rarely used.”).
For example, in Coleman v. Goodwin, the Fifth
Circuit found that Trevino applied in Louisiana, because as in Trevino, nominally available direct appeal procedures had been used in only a “handful of
cases,” best characterized as “outliers.” 833 F.3d 537,
542-543 (5th Cir. 2016). Similarly, in Woolbright, the
Sixth Circuit found it telling that Kentucky could not
cite even one example of a nominally available direct-appeal procedure being used. 791 F.3d at 633.
3.
Timing.
This Court in Trevino also looked at timing—
whether a State’s procedures provided defendants
with sufficient time to create an adequate appellate
record on the ineffective assistance issue. Several
courts have found Trevino applicable after determining that state procedures simply do not give enough
time to create an adequate record on an issue.
In Woolbright, for example, the Sixth Circuit relied heavily on the fact that Kentucky procedures re-
12
quired defendants to file a motion for a new trial
within five days of the verdict and prohibited extensions of time, yet did not require trial transcripts to
be available for at least 50 days. Ibid. The court in
Sutton similarly observed that in Tennessee, motions
for new trials must be filed within 30 days of sentencing—even though trial transcripts might not be
available until much later. 745 F.3d at 792.
On the other hand, courts have found that some
direct review procedures do provide adequate time to
create a sufficient factual record. See Fairchild v.
Trammell, 784 F.3d 702, 721-722 (10th Cir. 2015)
(finding Trevino not to apply in Oklahoma, where
“[t]he opening brief is not due until 120 days from
the date the [court] receives the trial record and
transcripts”); Lee v. Corsini, 777 F.3d 46, 60 (1st Cir.
2015) (noting that Massachusetts provides defendants ample time to amass a record).
4. Counsel.
Finally, courts frequently assess whether trial
counsel’s continuing representation of the defendant
on direct appeal precludes ineffective assistance
claims from being raised on direct review. After all, it
is unlikely that trial counsel will be willing to argue
his own ineffectiveness on appeal.
For this reason, in Sutton, the Sixth Circuit
found that Trevino applied in Tennessee because its
appointed trial counsel was obligated to continue
representing the defendant through direct appeal,
absent good cause. 745 F.3d at 792-793. Courts have
reached the same conclusion about Kentucky and
capital defendants in Arkansas. See Woolbright, 791
F.3d at 632; Sasser v. Hobbs, 735 F.3d 833, 851-852
(8th Cir. 2013).
13
*
*
*
Judicial direction, frequency of actual use, timing, and continuity of counsel are the factors that
courts of appeals consistently evaluate when determining whether the Martinez-Trevino rule applies in
a particular State. Not surprisingly, courts have
found Trevino to apply in some States but not in others. But that is a result of differences in state procedures, not because the courts are applying different
tests.
B. The Court Below Correctly Held That
Trevino Applies To Indiana Ineffective
Assistance Claims.
Indiana defendants have two options for raising
claims of ineffective assistance of trial counsel: (1) in
the opening brief on direct appeal; or (2) through a
post-conviction collateral review proceeding. And
they have two options for initiating collateral review
proceedings: (1) waiting until direct review is concluded; or (2) invoking the Davis-Hatton procedure
after the docketing of the direct appeal, and requesting the termination or suspension of that direct appeal, to enable the expedited initiation of a collateral
review proceeding in the trial court.
An Indiana defendant’s claim of ineffective assistance of trial counsel may be raised either on direct
appeal or in a collateral proceeding—but not in both.
Raising any claim of ineffective trial counsel on direct appeal bars the defendant from raising any such
claim in a collateral proceeding, even if it rests on
grounds different from those presented on direct appeal. Woods v. State, 701 N.E.2d 1208, 1220 (Ind.
1998) (“The defendant must decide the forum for adjudication of the issue—direct appeal or collateral
14
review. The specific contentions supporting the
claim, however, may not be divided between the two
proceedings.”).
The State does not seriously argue that the direct
appeal option is sufficiently viable to preclude the
application of Trevino. Nor could it.
There is no mechanism for supplementing the
trial record, and the defendant who chooses this
route must raise all ineffectiveness claims on direct
appeal. See pages 3-5, supra.
Drawing on long-established federal practice, the
Indiana Supreme Court has explained that ineffectiveness claims raised in the opening brief on direct
appeal “almost always fail” because “[w]hen the only
record on which a claim of ineffective assistance is
based is the trial record, every indulgence will be
given to the possibility that a seeming lapse or error
by defense counsel was in fact a tactical move, flawed
only in hindsight.” Woods, 701 N.E.2d at 1216 (citing
United States v. Taglia, 922 F.2d 413, 417-418 (7th
Cir. 1991)).
Indeed, the Indiana Supreme Court has refused
to address an ineffective assistance of counsel claim
asserted on direct appeal, in McIntire v. State, 717
N.E.2d 96, 102 (Ind. 1999), later explaining that “because Woods expressed a strong preference for considering [ineffective assistance of trial counsel
claims] in post-conviction proceedings, we declined to
address the ineffective assistance of counsel claim in
McIntire at all.” Landis v. State, 749 N.E.2d 1130,
1132-1133 (Ind. 2001).2
2 The infrequency with which defendants assert ineffectiveness
claims on direct appeal is confirmed by Indiana’s petition for
15
Rather than pointing to direct appeal as the procedural route that Brown was obligated to pursue,
the State invokes the Davis-Hatton procedure—
asserting that it provides most defendants a meaningful opportunity for the review of ineffective assistance of trial counsel claims on direct appeal.
The Seventh Circuit correctly held that it does
not. That holding, which is entirely consistent with
Trevino, presents no conflict with the decisions of
other circuits and does not warrant further review.
1. The Davis-Hatton process is a mechanism
for expedited collateral review, and is
therefore irrelevant to the Trevino inquiry.
Indiana’s argument fails at the threshold because the Davis-Hatton procedure does not permit
the presentation of ineffectiveness claims on direct
review. Rather, it is a means of initiating a collateral
review proceeding on an expedited basis. Because
Trevino does not require a defendant to utilize a specertiorari, which identifies only five cases since 2001 in which
defendants won on ineffectiveness claims raised on direct appeal. All involve narrow claims based on the trial record: Perez
v. State, 748 N.E.2d 853, 855 (Ind. 2001) (for failure to object to
a jury instruction misstating the law); Brown v. State, No.
32A05-1510-CR-1748, 2016 WL 3556267 (Ind. Ct. App. June 29,
2016) (for clear failure to move for a discharge after a speedy
trial violation); Williams v. State, 983 N.E.2d 661 (Ind. Ct. App.
2013) (table) (for failure to object to the introduction of large
amounts of prejudicial propensity evidence); Pryor v. State, 973
N.E.2d 629 (Ind. Ct. App. 2012) (for failure to file a timely demand for a jury trial because counsel inadvertently miscalculated the deadline date); Lewis v. State, 929 N.E.2d 261 (Ind.
Ct. App. 2010) (for failure to file a necessary jury trial request
when defendant had clearly stated on the record that he wanted
a jury trial).
16
cific collateral review proceeding—particularly in the
absence of a state law requiring that the defendant
do so—the existence of the Davis-Hatton procedure is
irrelevant to the Trevino analysis.
To begin with, Indiana decisions make clear that
the Davis-Hatton procedure is a means of instituting
collateral review, not a means of supplementing the
defendant’s direct appeal. It involves “a termination
or suspension of a direct appeal already initiated,
upon appellate counsel’s motion for remand or stay,
to allow a post-conviction relief petition to be pursued in the trial court.” Slusher, 823 N.E.2d at 1222;
see also Woods, 701 N.E.2d at 1219 (explaining that
a Davis-Hatton petition, if granted, “allows a defendant to suspend the direct appeal to pursue an immediate petition for postconviction relief”). It is to be
used, in the Indiana Supreme Court’s words, in the
“exceptional case in which the defendant prefers to
adjudicate a claim of ineffective assistance before direct appeal remedies have been exhausted.” Woods,
701 N.E.2d at 1219-1220.
That a Davis-Hatton petition is nothing more
than a mechanism for accelerating collateral review
is confirmed by the step that follows the granting of
the petition: the filing of a post-conviction petition in
the trial court. This petition is treated the same as
any other post-conviction petition and is governed by
the same procedural rules under Indiana PostConviction Rule 1. See Peaver v. State, 937 N.E.2d
896, 900 (Ind. Ct. App. 2010) (applying Rule 1 in context of collateral proceeding instituted through the
Davis-Hatton procedure).
Once the Davis-Hatton procedure has been invoked, the trial court’s determination is reviewed on
appeal under the standard of review applicable to
17
collateral review proceedings. Thus, if the postconviction petition that results from the granting of a
Davis-Hatton petition is denied, “an appeal from that
post-conviction denial and the original direct appeal
will be consolidated but evaluated under separate
standards of review.” Pet. App. 12a. In particular, a
defendant wishing to appeal the trial court’s rulings
in the collateral review proceeding “faces the rigorous burden of showing that the evidence as a whole
leads unerringly and unmistakably to a conclusion
opposite to that reached by the court”—the standard
that also applies to collateral review proceedings not
initiated through the Davis-Hatton procedure.
Peaver, 937 N.E.2d at 900 (quotation marks, brackets, and citation omitted).
The State relies on lower court decisions addressing Oklahoma and Massachusetts procedures. See
Fairchild v. Trammell, 784 F.3d 702 (10th Cir. 2015);
Lee v. Corsini, 777 F.3d 46 (1st Cir. 2015). But those
procedures enabled defendants to create an expanded direct appeal record and made clear that the determinations would be subject to the standard governing direct appeals. Fairchild, 784 F.3d at 721;
Lee, 777 F.3d at 61. That is totally different from the
Davis-Hatton procedure, which results in the institution of a separate collateral review proceeding, subject to the rules governing such proceedings in the
trial court and on appeal—which is merely heard by
the appellate court in tandem with the separate direct appeal.
The Seventh Circuit therefore correctly held that
the accelerated collateral review proceeding triggered by the filing of a Davis-Hatton petition “does
not provide, in the Trevino Court’s words, ‘meaningful review’ of an ineffective assistance counsel claim
18
on direct review: it simply is not direct review.” Pet.
App. 14a.
2. The structure and operation of the DavisHatton procedure make it virtually impossible to raise ineffective assistance
claims.
Even if the Davis-Hatton procedure could somehow be relevant to the Trevino inquiry notwithstanding the fact that this procedure does not provide an
opportunity to raise ineffective assistance claims on
direct review—which is the relevant question under
Trevino—that procedure does not provide a meaningful opportunity to raise ineffective assistance of trial
counsel claims. Multiple features of the Davis-Hatton
procedure mandate that conclusion.
First, a party seeking to invoke the Davis-Hatton
process must demonstrate to the appellate court—
based on the trial record alone—that there is a substantial likelihood of success on the merits of the ineffectiveness claim. Davis v. State, 368 N.E.2d 1149,
1151 (Ind. 1977). See also Thompson v. State, 671
N.E.2d 1165, 1168 n.2 (Ind. 1996) (denying DavisHatton petition because “the appellant had failed to
make any showing that his claim of ineffective assistance of counsel has a substantial likelihood of success at trial”); Slusher, 823 N.E.2d at 1222 (“If the
appellate court preliminarily determines that the
motion has sufficient merit, the entire case is remanded for consideration of the petition for postconviction relief.”).
Making such a showing requires time and an investigation, neither of which is available in Indiana.
The Davis-Hatton petition must be filed in the course
of appellate briefing—and logically, with, if not be-
19
fore, the filing of the appellant’s brief. That brief is
due 30 days after the filing of the trial transcript.
Ind. R. App. P. 45.
In addition, as the Indiana Supreme Court has
explained, “expecting appellate lawyers to look outside the record for error is unreasonable in light of
the realities of appellate practice. Direct appeal
counsel should not be forced to become a second trial
counsel. Appellate lawyers may have neither the
skills nor the resources nor the time to investigate
extra-record claims, much less to present them coherently and persuasively to the trial court.” Woods,
701 N.E.2d at 1216
In the States whose procedures are relied on by
Indiana—Massachusetts and Oklahoma—the appellate attorney has at least 120 days after the court of
appeals receives the trial transcript before appellant’s opening brief is due. See Mass. R. App. P. 19;
Okla. Stat. tit. 21, § 701.13(D); Okla. R. Ct. Crim.
App. 9.3(A). And that time can be used to invoke procedures permitting the addition of new facts to the
record—a motion for a new trial (in the case of Massachusetts) or a request to supplement the record (in
the case of Oklahoma).
Second, the Indiana Supreme Court has effectively directed defendants to reserve ineffective assistance of trial counsel claims for collateral review
proceedings following a decision on direct appeal. In
Woods, the Indiana Supreme Court explained that “a
postconviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim,” 701
N.E.2d at 1219, and that the Davis-Hatton procedure
is therefore “not to be used as a routine matter in adjudicating the issue of trial counsel’s effectiveness,”
id. at 1220.
20
That is remarkably similar to the directive from
the Texas Court of Criminal Appeals upon which this
Court relied in Trevino: “Texas’ highest criminal
court 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 proceedings.” 569 U.S. at 426 (quoting Mata v. State, 226 S.W.3d 425, 430 n.14 (Tex.
Crim. App. 2007)).
Third, appellate counsel must convince the court
of appeals that use of the Davis-Hatton procedure
“has a substantial likelihood of rendering moot the
issues raised on direct appeal and would effect a net
savings of judicial time and effort,” and “that the circumstances of the case are such that undue hardship
would result to appellant were he required to await
completion of his appeal to petition for postconviction relief.” Davis, 368 N.E.2d at 1151. These
requirements add additional obstacles to the use of
the Davis-Hatton procedure and confirm its status as
an exceptional procedure.
Fourth, as the Seventh Circuit emphasized, “[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
proceedings that may follow.” Pet. App. 13a; see also
pages 3-5, supra.
When the Indiana Supreme Court in Woods articulated that rule barring splitting of ineffective assistance of counsel claims, it anticipated that the
rule “will likely deter all but the most confident appellants from asserting any claim of ineffectiveness
on direct appeal.” Woods, 701 N.E.2d at 1220. This
rule, which makes the use of the Davis-Hatton pro-
21
cedure a deeply risky business, renders Indiana’s
procedures “even more restrictive than the Texas
procedures in Trevino.” Pet. App. 14a.
On this point, the contrast with Massachusetts’s
and Oklahoma’s procedures is stark. In Oklahoma,
raising an ineffective assistance of trial counsel claim
on direct appeal is a prerequisite—not a bar—to raising such a claim on collateral review. Similarly, Massachusetts General Laws Chapter 278 states that
while a defendant is free to file any number of motions for a new trial as he wants, he is not entitled to
appellate review of a denial of such a motion if the
issues it raises “could have been raised on direct appeal or in his first motion for a new trial.” Lee v.
Corsini, 777 F.3d 46, 57 (1st Cir. 2015). Both Massachusetts and Oklahoma thus effectively require defendants to raise ineffective assistance of trial counsel claims on direct appeal. The same is true of the
Wisconsin procedure upheld in 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.”). The opposite is true in Indiana,
where raising a claim of ineffectiveness on direct appeal actually bars a defendant from raising it on collateral review.
In light of the Indiana court’s directives and the
procedural obstacles to use of the Davis-Hatton procedure, it is no wonder that use of the Davis-Hatton
procedure is exceptionally rare. The submission below by a group of Indiana public defenders confirms
that between 2008 and 2012, its attorneys filed approximately 2,000 appeals and only four DavisHatton petitions. Pet. App. 14a.
22
The Seventh Circuit properly concluded that the
Davis-Hatton procedure is “special, limited, . . . [and]
rarely used.” Ibid. (citing Trevino, 569 U.S. at 427).
In so concluding, the Seventh Circuit reasoned in
lockstep with this Court’s statement in Trevino that
“special, rarely used procedural possibilities” could
not overcome “Texas courts’ own well-supported determination that collateral review normally constitutes the preferred—and indeed as a practical matter, the only—method for raising an ineffectiveassistance-of-trial-counsel claim.” 569 U.S. at 427.
The conclusion of the court below is entirely consistent with the decisions of the First and Tenth Circuit holding, respectively, that Massachusetts and
Oklahoma procedures make direct appeal a meaningful route for raising ineffective assistance claims.
In Lee, the First Circuit emphasized that defendants faced “no unrealistic time limits,” were able to
supplement the factual record, and did not risk waiving other ineffective assistance claims. 777 F.3d at
60. The court balanced this procedural design
against a mild directive from the Massachusetts Supreme Court that “the preferred method for raising a
claim of ineffective assistance of counsel is through a
motion for a new trial.” Ibid. (citing Commonwealth
v. Zinser, 847 N.E.2d 1095, 1098 (Mass. 2006)).
Here, by contrast, the defendant cannot supplement the record on which the appellate court adjudicates his or her Davis-Hatton petition, and risks
waiving all other claims. And the Indiana courts
have much more clearly expressed their preference
that these claims be raised in collateral proceedings
following the resolution of the direct appeal.
23
The Tenth Circuit in Fairchild also focused on
the time allowed for record development and cited
numerous examples of successful ineffective assistance of trial counsel claims raised on direct appeal.
784 F.3d at 722-723. Unsurprisingly, given the number of successful claims, there were no directives
from the Oklahoma courts advising defendants to
raise their claims in collateral proceedings.
The different results in these cases therefore
turn entirely on the different state procedures and
different statements by state courts—as well as the
fact that the Davis-Hatton procedure is not a route to
direct review but rather a mechanism to speed up
the initiation of a collateral review proceeding.
CONCLUSION
The petition for a writ of certiorari should be denied.
24
Respectfully submitted.
MICHAEL K. AUSBROOK ANDREW J. PINCUS
Counsel of Record
P.O. Box 1554
Bloomington, IN 47402 CHARLES A. ROTHFELD
PAUL W. HUGHES
(812) 322-3218
MICHAEL B. KIMBERLY
EUGENE R. FIDELL
Mayer Brown LLP
Yale Law School
1999 K Street, NW
Supreme Court Clinic*
Washington, DC 20006
127 Wall Street
(202) 263-3000
New Haven, CT 06511
apincus@mayerbrown.com
(203) 432-4992
Counsel for Respondent
FEBRUARY 2018
The representation of respondent by a clinic affiliated with
Yale Law School does not reflect any institutional views of Yale
Law School or Yale University.
*
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.