Bryant v. Superintendent
Filing
29
OPINION AND ORDER DENYING 28 Motion to Alter Judgment as outlined in Order. Signed by Senior Judge James T Moody on 1/15/2021. (mrm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CHRISTOPHER ANTHONY BRYANT,
Petitioner,
v.
CAUSE NO. 2:17-CV-225-JTM-JEM
WARDEN,
Respondent.
OPINION AND ORDER
Christopher Anthony Bryant, a prisoner without a lawyer, filed a motion asking
the court to alter or amend the judgment pursuant to Federal Rule of Civil Procedure
59(e). “Altering or amending a judgment under Rule 59(e) is permissible when there is
newly discovered evidence or there has been a manifest error of law or fact.” Harrington
v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006). “But such motions are not
appropriately used to advance arguments or theories that could and should have been
made before the district court rendered a judgment, or to present evidence that was
available earlier.” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012)
(internal quotation marks and citation omitted).
In his habeas corpus petition, Bryant raised ten grounds: one arguing his direct
appeal counsel was ineffective and nine arguing his trial counsel was ineffective. (DE #
1.) In the order denying habeas corpus relief, the court found the nine ineffective
assistance of trial counsel claims procedurally defaulted and that he had not
demonstrated his appellate counsel was ineffective. (DE # 26.)
In this Rule 59 motion, Bryant argues this court erred by not finding that his
direct appeal counsel was ineffective because he raised a claim of ineffective assistance
of trial counsel on direct appeal and thereby foreclosed Bryant from raising other
ineffective assistance of trial counsel claims in his subsequent post-conviction relief
petition. “In this case appellate counsel raising of ineffective assistance of counsel on
Bryant’s direct appeal undermined Bryant’s right to raise meaningful ineffective
assistance of counsel claim on PC which appellate counsel clearly admitted in open
court would happen.” (DE # 28 at 2.) However, Bryant did not present this argument in
his habeas corpus petition. The only argument he made about the ineffectiveness of his
direct appeal counsel was:
Ground One: Petitioner was denied effective assistance of appellate
counsel by failing to argue properly the claim of ineffective assistance of
trial counsel, and by failing to challenge the reasonableness of the strip
search conducted at police station under the Fourth Amendment to the
United States Constitution.
Supporting Facts: In Bryant’s case (he) was still handcuffed from
behind when (2) police officers physically bent him forward so detective
could check the buttock area. In Bryant’s case appellate counsel raised
ineffective assistance of trial counsel on direct appeal and failed to make a
separate argument under the Fourth Amendment to the United States
Constitution regarding the scope of the strip search. In addition, detective
never presented evidence to his captain (or) court that he saw Mr. Bryant
place anything between his buttock area (or) was concealing anything in
body cavities.
(DE # 1 at 6.) Nothing in Ground One says anything about direct appeal counsel being
ineffective because he should not have presented an ineffective assistance of trial
counsel claim. Therefore this argument is not a basis for altering or amending the
judgment.
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Bryant argues, “[t]he court ignore[d] Bryant’s ‘MAIN’ ineffective of appellate
counsel claim regarding challenging the strip search at the police station that Bryant
clearly did not give appellate counsel approval to raise this claim of ineffective
assistance of counsel on Bryant’s direct appeal.” (DE # 28 at 2.) However, as noted
above, Bryant did not include that claim in his habeas corpus petition.
Bryant argues, “the court failed to confront each meritorious ineffective
assistance of trial (nor) ineffective assistance of appellate counsel claims Ground Two
through Ten in Bryant’s traverse.” (DE # 28 at 2 (emphasis added).) However new
grounds cannot be added in a traverse because Section 2254 Habeas Corpus Rule 2(c)(1)
requires that “[t]he petition must: (1) specify all the grounds for relief available to the
petitioner.” See also O’Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020) (“[W]e have
repeatedly recognized that district courts are entitled to treat an argument raised for the
first time in a reply brief as waived.”). Here, Bryant did not include any ineffective
assistance of appellate counsel claims in Grounds Two through Ten of his petition and
the ineffective assistance of trial counsel claims that he included were procedurally
defaulted because he had not properly presented them to the State courts.
Bryant argues he established cause and prejudice to excuse the procedural
default of his ineffective assistance of trial counsel claims. He says he did this by
showing that his direct appeal counsel was ineffective by wrongly raising an ineffective
assistance of trial counsel claim on direct appeal which foreclosed his ability to raise
other ineffective assistance of trial counsel claims during his post-conviction relief
proceedings. As noted in the order denying habeas corpus relief, ineffective assistance
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of counsel can be cause to excuse procedural default, but only if that claim is
independently preserved by raising it through one full round of state court review. See
Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir. 2014).
Here, Bryant did not preserve the ineffective assistance of appellate counsel
claim he now asserts was cause to excuse procedural default. His only claim of
ineffective assistance of appellate counsel presented in his petition to transfer to the
Indiana Supreme Court was:
I. Whether appellate counsel rendered ineffective assistance by failing to
challenge the reasonableness of the strip search under the Fourth
Amendment to the United States Constitution.
In Bryant’s case “(he) was still handcuffed from behind, and (2) police
officers physically bent him forward, so detective could check the buttock
area.” (Tr. p 73). Simply appellate counsel failed to make separate
argument under the Fourth Amendment to the United States Constitution
(regarding) the scope of the strip search. The marijuana evidence were the
fruits of the illegal strip-search that should have been suppressed. In this
case detective never presented any evidence to his captain (or) court that
“he saw Bryant placing anything between his buttock area (or) was
concealing anything in body cavities, (which) indicates detective did not
have probable cause (nor) did exigent circumstances exist which would
justify search of Bryant.
(DE # 11-12 at 11.) Therefore, this argument is not a basis for altering or amending the
judgment.
Finally, Bryant argues “the court in its opinion and order did not discuss
McMann [v. Richardson, 397 U.S. 759 (1970)] or Trevino [v. Thaler, 569 U.S. 413 (2013)].”
(DE # 28 at 5.) Bryant argues McMann is relevant to this case because the United States
Supreme Court “has recognized that ‘the right to counsel is the right to the effective
assistance of counsel.’” (DE # 28 at 5.) Though true, the court recognized the same
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concept with its citation to Strickland v. Washington, 466 U.S. 668 (1984). Specifically
citing to McMann was unnecessary and failing to do so is not a basis to alter or amend
the judgment.
Bryant argues Trevino is relevant to this case because “[a] federal habeas court is
allowed to find ‘cause’ thereby excusing a defendant of procedural default where (1) the
claim of ineffective assistance of ‘trial counsel’ was a ‘substantial claim.’” (DE # 28 at 4.)
However, that is an incomplete representation of what Trevino said about excusing
procedural default of ineffective assistance of trial counsel claims. Quoting Martinez,
Trevino explained that “[A] procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.” Trevino, 569 U.S. at 429.
Allowing a federal habeas court to hear a claim of ineffective assistance of
trial counsel when an attorney’s errors (or the absence of an attorney)
caused a procedural default in an initial-review collateral proceeding
acknowledges, as an equitable matter, that the initial-review collateral
proceeding, if undertaken without counsel or with ineffective counsel,
may not have been sufficient to ensure that proper consideration was
given to a substantial claim.
Martinez, 566 U.S. at 14 (emphasis added). Bryant did not have counsel for his postconviction relief proceedings, but that did not cause his ineffective assistance of trial
counsel claims to receive proper consideration. As he has explained, they were
procedurally defaulted by his direct appeal counsel because an ineffective assistance of
trial counsel claim was raised on direct appeal. Therefore Trevino is not relevant to this
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case and not mentioning it in the dismissal order is not a basis for altering or amending
the judgment.
For these reasons, the Rule 59 motion (DE # 28) is DENIED.
SO ORDERED.
Date: January 15, 2021
s/James T. Moody
.
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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