Dentrell Brown v. Richard Brown

Filing

Filed opinion of the court by Judge Hamilton. REVERSED and REMANDED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge, dissenting, and David F. Hamilton, Circuit Judge. [6815691-1] [6815691] [16-1014]

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

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See Bruton v. United States, 391 U.S. 123 (1968) (protecting codefendant from testimonial confessions of other co-defendants). The district court denied the habeas petition, finding
that Brown had procedurally defaulted this claim for ineffective assistance of trial counsel by failing to assert it in state
court so that federal review is barred. Brown has appealed.
On the issue of procedural default, we hold that the form
of “cause” found in Martinez v. Ryan, 566 U.S. —, 132 S. Ct.
1309 (2012), and expanded in Trevino v. Thaler, 569 U.S. —, 133
S. Ct. 1911 (2013), is available to federal habeas corpus petitioners in Indiana who have substantial claims for ineffective
assistance of trial counsel that have been procedurally defaulted in state post-conviction proceedings by lack of any
counsel or lack of effective counsel. Brown is entitled to an
opportunity to overcome procedural default of his claim for
ineffective assistance of trial counsel for failure to request a
limiting instruction if he can both demonstrate ineffective assistance of post-conviction counsel and assert a substantial
claim of ineffective assistance of trial counsel. We conclude
that he is entitled to an evidentiary hearing.
I. Factual and Procedural Background
On appeal we review de novo district court rulings on petitions for habeas relief and review any findings of fact for
clear error. See Lisle v. Pierce, 832 F.3d 778, 781 (7th Cir. 2016);
Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012). Those
claims not adjudicated on the merits in the state court, like the
one presented here, are also reviewed de novo. Cone v. Bell, 556
U.S. 449, 472 (2009); Warren v. Baenen, 712 F.3d 1090, 1096, 1098
(7th Cir. 2013).

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A. The Murder Trial of Joshua Love and Dentrell Brown
In the early morning hours of March 8, 2008, in Elkhart,
Indiana, Gerald Wenger was murdered after trying to buy
drugs. He was discovered lying dead in the street around 2:00
a.m., with a single nine-millimeter bullet wound to his head.
Two bullet casings were found near Wenger’s body, one from
a nine-millimeter handgun and a second from a .45 caliber
handgun. No physical evidence was recovered beyond the
shell casings.
Following the murder, investigators relied on information
from interviews with community members. After interviews
provided the names of Joshua Love and Dentrell Brown, investigators began to rely on information from incarcerated individuals. On June 18, 2008, the State charged Brown with
murder.
Brown was then just thirteen years old, and Love was nineteen years old. Brown was waived into adult felony court, and
the two were tried together. At trial, the State’s key evidence
tying Brown to the crime scene was the testimony of Mario
Morris. Morris testified that, while Morris, Brown, and Love
were all in the Elkhart County Jail, Brown and Love each confessed separately to involvement in the murder. Testifying
first to his conversation with Love, Morris said that Love confessed to trying to sell fake drugs to Wenger the night of the
murder, and then, after the sale went bad, shooting Wenger in
the head with a nine-millimeter handgun.
Morris then testified that Brown had told him a similar
story, but with some important differences. For example, Morris testified that Brown said he had struck Wenger with the
butt of a .45 caliber handgun, discharging one unintentional

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shot. A critical feature of Morris’s testimony for Bruton purposes was that his account of Love’s confession included no
mention of Brown or anyone else having been present at the
shooting, and his account of Brown’s confession included no
mention of Love or anyone else having been present when
Brown hit Wenger in the head.
After Morris testified, Brown and Love both moved for a
mistrial based on Bruton v. United States, 391 U.S. 123 (1968).
The trial judge denied both motions, emphasizing that at no
time did Morris say Brown’s name when testifying against
Love, nor did he say Love’s name when testifying against
Brown. Both Love and Brown were convicted of murder, with
Brown’s conviction based on a theory of accomplice liability.
Brown was sentenced to 60 years in prison.
B. Direct & Collateral Review in the State Courts
On direct appeal, Brown’s counsel raised three claims, including that the trial court abused its discretion when it denied his Bruton motion for a mistrial. D.B. v. State (D.B. I), 916
N.E.2d 750, 2009 WL 3806084, at *1, 2–3 (Ind. App. 2009)
(mem.). Brown’s appellate counsel argued that Morris’s testimony about Love’s statement violated Brown’s confrontation
rights because Brown could neither compel Love to testify nor
cross-examine him. Id. at *2. The appellate court was not persuaded. It found no Bruton violation because Morris’s account
of Love’s confession to him never mentioned a third party present at the scene of the murder. Id. at *3.
Brown filed a petition for post-conviction relief in state
court with the assistance of counsel. His post-conviction lawyer raised a single issue in the operative petition: ineffective
assistance of trial counsel for having failed to move to sever

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Brown’s trial from Love’s. The argument relied on Bruton even
though the appellate court on direct review had “specifically
held” that there was no Bruton violation in Brown’s trial. The
trial court denied relief, and the Indiana Court of Appeals affirmed, finding that the ineffective assistance of counsel claim
was an attempt to revisit the Bruton issue decided against
Brown on direct appeal and thus barred by res judicata. D.B. v.
State (D.B. II), 976 N.E.2d 146, 2012 WL 4713965 at *2–3 (Ind.
App. 2012) (mem.).
C. Brown’s Federal Habeas Petition
Brown’s habeas petition to the federal district court raised
three issues, two of which have been dropped on appeal. The
only claim before us is Brown’s claim that his “trial lawyer
was ineffective for failing to request an instruction limiting
the use of Love’s statement, offered through Morris, to Love.”
Because it was not presented to the state courts, the claim for
ineffective assistance of trial counsel would ordinarily be
barred from federal review because of procedural default. In
the district court, however, Brown argued that he should be
given the opportunity to overcome that default under Martinez, 132 S. Ct. 1309, and Trevino, 133 S. Ct. 1911.
The district court held that Martinez and Trevino do not apply to § 2254 cases in Indiana, and thus Brown was not entitled to attempt to overcome procedural default on his claim
for ineffective assistance of trial counsel. Brown v. Brown, No.
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 certificate of appealability that included this claim because
Brown had “made a substantial showing of the denial of his
right to effective assistance of trial counsel.”

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II. Analysis
Brown’s claim for ineffective assistance of trial counsel requires a two-step analysis. We hold first that the Martinez-Trevino doctrine can apply to claims for ineffective assistance of
counsel arising from the Indiana state courts. We next hold
that Brown has offered some evidence of deficient performance by his post-conviction relief counsel and has asserted
a substantial claim of ineffective assistance of trial counsel. We
reverse and remand the case to the district court for an evidentiary hearing on both claims for ineffective assistance, first
on the procedural default issue and then, if the default is excused, on the merits of the trial-based claim.
Before explaining our view on Martinez-Trevino, we pause
to address the state’s assertion that petitioner’s argument on
appeal has been forfeited. The state argues that in the federal
district court, petitioner’s claims were based on the Confrontation Clause pursuant to Bruton rather than the Indiana Rules
of Evidence. Under this theory, Brown’s claim of ineffective
assistance of trial counsel for failure to request a limiting instruction based on the Indiana Rules of Evidence would be
forfeited now on appeal. We disagree. Brown’s habeas petition claimed clearly that his “trial lawyer was ineffective for
failing to request an instruction limiting the use of Love’s
statement, offered through Morris, to Love.” The habeas petition discussed the failure to request the limiting instruction as
something that should have occurred following the denial of
the motion for a mistrial, and the federal district court evaluated Brown’s claim separately from the Confrontation Clause
issue. Thus, petitioner’s specific claim—although not presented in the state courts—was not forfeited by any supposed
failure to raise it in the federal district court.

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A. The Martinez-Trevino Doctrine Applies in Indiana
On appeal, petitioner argues that the rule established in
Martinez and Trevino applies to § 2254 cases in Indiana so that
he may try to overcome the procedural default of his claim for
ineffective assistance of trial counsel. See Martinez, 132 S. Ct.
1309; Trevino, 133 S. Ct. 1911. We agree. We first explain the
scope of the Martinez-Trevino doctrine. Against that backdrop,
we then review the Indiana procedures for raising ineffective
assistance of trial counsel, and we compare those procedures
to those in other jurisdictions where the Martinez-Trevino doctrine applies. We find that Indiana procedures governing ineffective assistance of trial counsel claims fall into the category the Supreme Court addressed in Trevino.
1. The Martinez-Trevino Doctrine
A federal habeas petitioner’s claim is subject to the defense
of procedural default if he does not fairly present his claim
through a complete round of state-court review. Richardson v.
Lemke, 745 F.3d 258, 268 (7th Cir. 2014). A prisoner can overcome procedural default by showing cause for the default and
resulting prejudice, or by showing he is actually innocent of
the offense. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Until recently, a federal petitioner could not overcome the federal
bar on procedurally defaulted claims by proving ineffective
assistance of post-conviction counsel because there is no constitutional right to post-conviction counsel. See id. at 752–53.
In 2012, however, the Supreme Court recognized a new
form of cause for overcoming procedural default in Martinez:
“Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas

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court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective.” 132
S. Ct. at 1315, 1320. The Court explained that this route was
needed to protect a prisoner with “a potentially legitimate
claim of ineffective assistance of trial counsel” when state law
required defendant to bring claim for ineffective assistance of
trial counsel on collateral review. Id. If post-conviction counsel errs by failing to raise a claim for ineffective assistance of
trial counsel in the initial round of collateral review, it is unlikely that any state court at any level will hear the claim. Id.
at 1316.
The next year, the Court expanded the Martinez form of
“cause” in Trevino, holding that “a distinction between (1) a
State that denies permission to raise the claim on direct appeal
and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a
meaningful opportunity to do so is a distinction without a difference.” Trevino, 133 S. Ct. at 1921. Examining Texas law, Trevino observed that even though Texas did not require a defendant to raise an ineffective assistance of trial counsel claim in
state collateral review proceedings, the “structure and design
of the Texas system in actual operation” worked effectively as
a ban on claims on direct review. Id. at 1915. Like Texas, Indiana does not always require prisoners to bring claims for ineffective assistance of trial counsel on collateral review, so petitioner Brown must depend on the Trevino extension of Martinez to overcome procedural default.
In dissent in Trevino, Chief Justice Roberts predicted accurately a long process of state-by-state litigation on applying

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Trevino. Id. at 1923 (Roberts, C.J., dissenting). At least eight circuits, including this one, have decided whether Trevino applies to specific jurisdictions. This court applied the MartinezTrevino 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 petitioner 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 ineffective assistance of trial counsel claim in Wisconsin courts. See Ramirez v.
United States, 799 F.3d 845, 851 (7th Cir. 2015) (“Wisconsin law treats postconviction relief in an unusual way, insofar as it allows defendants to raise
a claim of ineffectiveness of counsel simultaneously with a direct appeal.”); 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 Wisconsin law.

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Cf. Lee v. Corsini, 777 F.3d 46, 61 (1st Cir. 2015) (Martinez-Trevino 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 Indiana
With Trevino as our guide, two characteristics of Indiana
practice—the “procedural design” and “systemic operation”—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 Indiana 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 governing 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 concluded “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 postconviction 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, presenting a claim for ineffective assistance is an all-or-nothing proposition in Indiana. A defendant may not present one specific

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ground on direct appeal and wait to present another on collateral review. Id.
The court in Woods explained that a claim for ineffective
assistance of trial counsel will ordinarily require evidence beyond the record of the conviction and so should ordinarily be
brought in a collateral post-conviction case where the defendant can offer new evidence. Id. at 1216. The complicating factor 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 ineffective assistance before direct appeal remedies have been exhausted.” Id. at 1219–20. Under these rare circumstances,
Woods explained, a procedure known in Indiana as the DavisHatton procedure allows a convicted appellant to suspend or
terminate his direct appeal to pursue a petition for post-conviction 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 ineffective assistance of trial counsel that will result in the immediate 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 appeal will be consolidated but evaluated under separate standards 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

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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 record, and because of the presumption of competence that applies 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 direct 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 Trevino. 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

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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 direct review. See Trevino, 133 S. Ct. at 1919. Perhaps most important, 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 Defender Council tells us that between 2008 and 2012, its attorneys filed approximately 2000 appeals and only four DavisHatton petitions.
b. Systemic Operation
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. The Indiana 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 ineffectiveness on direct appeal.” 701 N.E.2d at 1220. As in Trevino itself, “special, rarely used procedural possibilities” like
the Davis-Hatton procedure cannot overcome the Indiana
courts’ directives that the preferred forum for ineffective assistance of trial counsel claims is post-conviction review. See
Trevino, 133 S. Ct. at 1920.
The Indiana courts, like the Texas courts in Trevino, routinely direct defendants to bring claims for ineffective assistance of trial counsel on collateral review and warn against

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bringing them on direct review. Compare Woods, 701 N.E.2d
at 1219–20 (“[A] postconviction hearing is normally the preferred 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 adjudicate his claim … in a post-conviction relief proceeding.” McIntire 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 proceeding 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 Trevino, 133 S. Ct. at 1920. In its annual training, amicus Indiana

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Public Defender Council “consistently advises against appellate 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 procedural 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 Martinez-Trevino form of cause to excuse procedural default is
available to Indiana defendants who seek federal habeas relief. 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 deficient 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).

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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 default, 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 instruction. To demonstrate that counsel’s performance was deficient, the petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. Judicial review of counsel’s performance 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 collateral 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 objective standard of reasonableness so that he is entitled to an evidentiary hearing on the issue.
The amended complaint on collateral review made a single allegation of error: trial counsel had been ineffective “for
failing to move for a severance of his trial from Petitioner’s

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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-conviction relief are without merit, so an attorney’s failure to prevail, 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 attorney can and should use professional judgment in selecting
which claims and issues to raise, just as we expect from attorneys 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 additional obvious claim).
For purposes of applying Martinez and Trevino, the approach 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

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presented to those that might have been presented. Where
counsel chose to pursue just one issue that was a virtually certain loser, as in Shaw v. Wilson, a petitioner may show deficient
performance by showing that a much stronger claim or argument 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, petitioner 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 ineffective 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 already 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 testifying 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 presented that is “admissible against a party or for a purpose—
but not against another party or for another purpose”). In contrast, the claim post-conviction review counsel presented instead 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 testimony from Brown’s post-conviction counsel about the selection of issues and other factors that may affect the performance 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.

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2. Substantial Underlying Claim for Ineffective Assistance
of Trial Counsel
Martinez also requires a petitioner to show “that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 132 S. Ct. at
1318–19. Martinez offered little guidance as to what is a “substantial” claim for these purposes. It provided only a “cf.” citation 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 inquiry 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 ineffective-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., dissenting). 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 standard). 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)

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(concluding “that reasonable jurists would not debate the district 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 appealability); 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 support”).
In this case, petitioner argues that by granting a certificate
of appealability, we have already determined that his defaulted ineffective assistance of trial counsel claim is substantial under Martinez. The State simply repeats that a “substantial claim is one that has ‘some merit,’” then argues that petitioner 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 substantial ineffective assistance of trial counsel claim under Martinez.
We are guided by Strickland’s two-prong approach to
claims of ineffective assistance of counsel. Brown must address 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. Substantiality is a threshold inquiry; full consideration of the merits is not required. Miller-El, 537 U.S. at 336.

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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 murder. 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, Morris 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

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drugs. Morris was asked by the prosecutor, “And did they actually 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 caliber 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, although 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 requested the limiting instruction to which Brown was probably
entitled, it would have left the prosecution to rely on the arguably 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 Morris’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 purposes 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-

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tantly with a single word, “Correct,” to a leading question regarding an overheard confession by Brown. Lipkins also testified that he had a separate conversation in a car with Love,
in Brown’s presence, about the disposal of a .45 caliber handgun. But Lipkins, like most of the State’s witnesses, had serious credibility issues. He admitted to being interested in a reward offered for information on the case, and he was willing
to cooperate with police in order to keep his brother, T.J. Lipkins, 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 difficult time identifying Brown. A man testified that he saw two
boys walking by Wenger’s truck the morning after the shooting, but he could neither identify Brown nor say what the two
boys were doing. Two witnesses testified that Brown was trying 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 support,” or lacking in all legal merit. Martinez, 132 S. Ct. at 1319.

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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 disagree … or … conclude the issues presented” in petitioner’s
brief and borne out in the trial transcript “are adequate to deserve 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 ineffective 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-conviction counsel, Brown’s default will be excused, and he will
be entitled to an evidentiary hearing on the merits in the district court for the underlying claim of ineffective assistance of
trial counsel for failure to request a limiting instruction.

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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 principles 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 procedural 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 concluded litigation … and intrudes on state sovereignty to a
degree matched by few exercises of federal judicial authority.” Richter, 562 U.S. at 103 (quotation marks omitted). Accordingly, “[f]ederal courts sitting in habeas are not an
alternative forum for trying facts and issues which a prisoner 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 Antiterrorism and Effective Death Penalty Act of 1996

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(“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 Amendment 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 Amendment right to counsel on collateral review, attorney negligence at that stage is not cause to excuse a procedural default. Id. at 755.
As my colleagues explain, in Martinez v. Ryan, 132 S. Ct.
1309 (2012), the Supreme Court recognized a narrow exception 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

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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 collateralreview proceeding. Id. The Court held that this procedural
requirement of Arizona law warranted an equitable exception 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 underlying 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

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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 procedural rules make it “all but impossible” to raise such a claim
on direct appeal. Id. at 1920. That’s because a claim of ineffective assistance of trial counsel almost always requires development 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 “‘virtually impossible for appellate counsel to adequately present an
ineffective assistance [of trial counsel] claim’ on direct appeal.” 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 proceedings.” 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

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Strickland claim on direct review and an affirmative judicial
directive not to do so—put Trevino in much the same position 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 opportunity 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 virtually 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 immediate 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 reaffirmed the vitality of the Davis/Hatton procedure in Woods.
Id. at 1219–20.

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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 appropriate 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 adjudicate an ineffectiveness claim. We nonetheless agree that potential for administrative inconvenience 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 incarcerated defendant, the cause of justice is
plainly better served by making that determination as soon as possible. The same is true
even if a retrial is required. Resolving recordbased 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],

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267 N.E.2d [538,] 541 [Ind. 1971] (“[T]he permissible scope of review on direct appeal is
well defined and broader than that permitted
by collateral attack through post conviction relief.”). These considerations can be largely met
under a procedure that allows a defendant to
suspend the direct appeal to pursue an immediate 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 vitality of Davis procedure). This should cover
the exceptional case in which the defendant
prefers to adjudicate a claim of ineffective assistance before direct appeal remedies have
been exhausted. Because of the Davis procedure, the direct appeal is not necessarily an obstacle 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 routine matter in adjudicating the issue of trial
counsel’s effectiveness, a Davis request may be
appropriate “where the claim asserted arguably 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).

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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 contentions supporting the claim … may not be divided between
the two proceedings.” Id. at 1220. It’s a strong rule of preclusion; 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 collateral 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 preference 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

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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 paragraphs discussing this “strong judicial advice.” Id. at 1920.
But the advice of the Texas judiciary played only a supporting 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 highlight 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 application 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 convictions is extremely deferential. Under AEDPA the state court’s
factual findings are presumed to be correct, § 2254(e)(1), and

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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 postconviction process, even where by its terms the doctrine clearly
applies. If a prisoner complies with the exhaustion requirement 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 exception 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 questions 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

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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 inescapably applied. But they do not inescapably apply. I respectfully dissent.