United States District Court, N.D. Indiana, South Bend Division
MONDRA D. BROWN, Petitioner,
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Mondra D Brown, Petitioner, Pro se, Bunker Hill, IN.
For Superintendent, Respondent: Henry A Flores, Jr, LEAD ATTORNEY, Indiana Attorney General's Office - IAG/302, Indiana Government Center South, Indianapolis, IN.
OPINION AND ORDER
RUDY LOZANO, United State District Judge.
This matter is before the Court on the Second Amended Petition under 28 U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Mondra D. Brown on July 5, 2012. For the reasons set forth below, the habeas corpus petition is GRANTED and the State of Indiana is ORDERED to either release Mondra D. Brown or permit him to pursue a direct appeal with the assistance of appointed counsel within 60 days of this order. Counsel for the respondent is ORDERED to provide proof of compliance with this order within 75 days of this order.
Mondra D. Brown, a pro se prisoner, is challenging his convictions and 45 year sentence for Assisting a Criminal and Attempted Murder by the Marion Superior Court on June 15, 2006, under cause number 49G03-0410-MR-196476. Brown filed a direct appeal with the assistance of counsel, but then voluntarily dismissed it without prejudice to pursue post-conviction relief in accordance with the Davis/Hatton  procedure. This allowed him to combine his direct appeal issues and his post-conviction appeal issues into a single appeal at a later date. In dismissing his direct appeal, the Court of Appeals of Indiana ruled:
1. Brown's verified motion to dismiss appeal without prejudice and for leave to file petition for post-conviction relief is granted.
2. This appeal is dismissed without prejudice. If any part of the trial court's forthcoming ruling on the appellant's petition for post-conviction relief is adverse to the appellant, the appellant may in a subsequent appeal raise the issues he would have raised in this appeal along with the new issues created by the trial court's ruling on the petition for post-conviction relief.
DE 25-2 at 3.
Counsel for Brown then filed a post-conviction relief petition which was ultimately denied by the trial court. Counsel for Brown filed a notice of appeal solely appealing from the denial of post-conviction relief. See State Court Record, Post-Conviction Corrected Appendix of Exhibits, A84. Then, because Brown was unable
to continue to afford to retain his attorney, she withdrew by filing a motion with the court explaining:
That the Petitioner has advised counsel that he will be proceeding with the appeal from his recently-denied Verified Petition for Post-Conviction Relief pro se or retaining other counsel, and counsel has provided him with forms and guidance in how to do so as well as filed the Notice of Appeal to preserve his ability to appeal.
DE 25-15 at 2. The motion to withdraw made no mention of a direct appeal.
In his post-conviction appeal, Brown, now proceeding pro se, raised three issues, but only the second one is relevant to this proceeding:
Argument Two: The Defendant Was Denied Effective Assistance Of Appellate Counsel In Direct Contravention Of The Fifth, Sixth, And Fourteenth Amendments To The United States Constitution, And Article One, Section 12 & 13 Of The Indiana Constitution, Where Appellate Counsel Was Ineffective For The Following Reasons:
1) Failed To Raise On Davis/Hatton Petition Claim Of Ineffective Assistance Of Trial Counsel For Failing To Properly Investigate The " Illegal" Search Of Defendant's Residence And Vehicle, And Then File Motion Suppress The " Illegally" seized " Weapon" Found In Defendant's Vehicle. And Also, Failed To Object To The Admission Of The " Illegally" Seized " Weapon" During Trial.
2) Failed To Properly Argue On Davis/Hatton Petition Claim Of Ineffective Assistance of Trial counsel For Failing To Timely Object To The Presentation Of 404(b) Evidence By The Prosecutor During The Trial.
3) Failed To Raise On Davis/Hatton Petition Claim Of Ineffective Assistance Of Trial Counsel For Failing To Timely Object To Inadmissible Hearsay Elicited From State Witness By Prosecutor During Trial.
DE 25-7 at 6 (ellipsis and page numbers omitted). In affirming the denial of post-conviction relief, the Court of Appeals of Indiana correctly summarized this claim as " [w]hether Brown was denied the effective assistance of post-conviction counsel . . .." DE 25-10 at 3. This re-phrasing was accurate because Brown was arguing about events which had occurred during his post-conviction relief proceedings in the trial court.
Brown's use of the words, " Appellate Counsel" in the second claim was not correct because the post-conviction proceedings in the trial court were not part of his direct appeal. Perhaps his confusion stems from the fact that he was represented by the same attorney during both proceedings. Perhaps it is because he did not understand that Davis/Hatton merely delayed his direct appeal and preserved those issues so that they could be combined with the post-conviction appeal. Whatever the reason for Brown's confusion, the Davis/Hatton procedure did not make his post-conviction relief proceedings in the trial court a part of his direct appeal; the post-conviction proceedings remained a collateral attack.
After the Court of Appeals of Indiana denied his appeal, Brown sought transfer to the Indiana Supreme Court on two issues:
The Defendant Could Establish Prejudice Because His Trial Counsel Failed To Challenge The Search And Submachine
Gun On Fourth Amendment Constitutional Grounds.
DE 25-11 at 9.
Ms. Ricks erroneously informed the Court of Appeals that there were " no meritorious issues for a direct appeal," when in fact, there was sufficient evidence in the (first & second) trial records to support [Ineffective Assistance of Trial Counsel Claim] for failing to challenge admission of the " [Submachine Gun]" on the " Fourth Amendment Grounds."
DE 25-11 at 14. The Indiana Supreme Court denied transfer on December 10, 2009.
Brown initiated this habeas corpus proceeding on December 10, 2010, but it was subsequently stayed while he attempted to obtain authorization from the Court of Appeals of Indiana to file three successive post-conviction relief petitions. All were denied. Ultimately, the stay in this court was lifted and Brown filed the Second Amended Habeas Corpus Petition (DE 22) at issue now. In it he sets forth five grounds for relief.
1. The petitioner was denied the right to the effective assistance of counsel from his trial attorney, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. DE 22 at 4. ...