United States District Court, S.D. Indiana, Indianapolis Division
PROCEDURALLY DEFAULTED CLAIMS AND DIRECTING FURTHER PROCEEDINGS
JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is petitioner Dentrell Brown's petition for a writ of habeas corpus. Mr. Brown raises three grounds for relief in his petition. In brief, his first ground asserts that the Indiana Court of Appeals erred in deciding a Bruton claim raised on direct appeal. His second ground is ineffective assistance of trial counsel concerning the Bruton issue. Finally, he asserts a Giglio violation concerning his testifying co-defendant. The Court addresses only the latter two in this Order. The parties are ordered to submit additional briefing regarding Ground One as set forth at the end of this Order.
As to his second ground, Mr. Brown requests relief in the form of an evidentiary hearing. Regarding his third ground, Mr. Brown asks the Court to stay this case so that he can request permission from the Indiana Court of Appeals to initiate a successive state post-conviction proceeding. For the reasons explained, both of these requested are denied. Mr. Brown has procedurally defaulted both of these claims, and they are therefore dismissed with prejudice.
In February 2009, Mr. Brown was convicted in an Indiana state court of murder, and he was sentenced to 60 years' imprisonment. On direct appeal to the Indiana Court of Appeals, Mr. Brown, among other things, argued that his rights set out in Bruton v. United States, 391 U.S. 123 (1968), were violated when the trial court denied his motion for a mistrial. Mr. Brown raised his Bruton claim in his petition to transfer to the Indiana Supreme Court, but his petition to transfer was denied on January 7, 2010.
Mr. Brown filed a petition for post-conviction relief in state court on March 29, 2010. The post-conviction court denied Mr. Brown's petition. Mr. Brown appealed, arguing that his trial counsel was ineffective in failing to prevent a Bruton violation by not moving to sever Mr. Brown's trial from his codefendant's trial. The Indiana Court of Appeals held that Mr. Brown's ineffective assistance of counsel claim was merely an attempt to re-litigate the Bruton claim that was rejected on direct appeal, and therefore the claim was barred by res judicata. Mr. Brown filed a petition to transfer to the Indiana Supreme Court, which was denied on December 14, 2012. Mr. Brown then filed the instant petition for a writ of habeas corpus in this Court.
Mr. Brown asserts three grounds for relief in his habeas petition: (1) his rights under the Confrontation Clause were violated, and the Indiana Court of Appeals on direct appeal unreasonably applied Bruton in reaching the contrary result; (2) his trial counsel provided ineffective assistance by failing to request a limiting instruction that would have prevented the jury from using Mr. Brown's codefendant's statement as evidence against Mr. Brown; and (3) Mr. Brown's rights under Giglio v. United States, 405 U.S. 150 (1972), were violated because Mario Morris, a prisoner who testified against Mr. Brown, stated that he did not receive a benefit for testifying against Mr. Brown when he in fact did. In his petition, he requests an evidentiary hearing regarding his second issue and, as to his third issue, requests that the Court stay this case so that he can pursue leave to file a successive post-conviction proceeding in state court. The Court addresses each of these two requests in turn.
A. The Second Ground and Mr. Brown's Request for an Evidentiary Hearing
Mr. Brown maintains that his trial counsel provided ineffective assistance by failing to request a limiting instruction that would have prevented the jury from using Mr. Brown's codefendant's statement as evidence against Mr. Brown. He acknowledges that this claim was not raised in his state post-conviction proceeding and is therefore procedurally defaulted. However, relying on Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), he contends that he can overcome this potential procedural default because his state post-conviction counsel provided ineffective assistance by not raising this claim. He further requests that the Court grant him an evidentiary hearing so that he can develop whether his state post-conviction counsel was ineffective.
The State responds that no evidentiary hearing is necessary because Mr. Brown cannot overcome the procedural default. Specifically, the State argues that Seventh Circuit law is clear that ineffective assistance of state post-conviction counsel can only excuse a procedural default if state law generally requires ineffective assistance claims to be raised in state post-conviction proceedings, which is not the case in Indiana.
Procedural default occurs "when a habeas petitioner has failed to fairly present to the state courts the claim on which he seeks relief in federal court and the opportunity to raise that claim in state court has passed." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). A habeas petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice or by showing that the habeas court's failure to consider the claim would result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006); Coleman v. Thompson, 501 U.S. 722, 750 (1991). As a general matter, "ineffective assistance of counsel during state post-conviction proceedings cannot serve as cause to excuse factual or procedural default." Wooten v. Norris, 578 F.3d 767, 778 (7th Cir. 2009). The Supreme Court recently articulated an exception to this rule: "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 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 ...