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 tothe United States Court of Appeals for

the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

MICHAEL K. AUSBROOK

P.O. Box 1554Bloomington, IN 47402(812) 322-3218

EUGENE R. FIDELL

Yale Law SchoolSupreme Court Clinic127 Wall StreetNew Haven, CT 06511(203) 432-4992

ANDREW J. PINCUS

Counsel of RecordCHARLES A. ROTHFELD

PAUL W. HUGHES

MICHAEL B. KIMBERLY

Mayer Brown LLP1999 K Street, NWWashington, DC 20006(202) 263-3000apincus@mayerbrown.com

Counsel for Respondent

i

QUESTION PRESENTED

Whether the Seventh Circuit correctly concludedthat Indiana’s procedures governing claims of inef-fective assistance of trial counsel “do[] not offer mostdefendants a meaningful opportunity to present aclaim of ineffective assistance of trial counsel on di-rect appeal.” Trevino v. Thaler, 569 U.S. 413, 428(2013).

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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 SameTest In Assessing States’ ProceduresUnder Martinez And Trevino. ..........................9

1. Judicial direction.......................................10

2. Actual use. .................................................11

3. Timing........................................................11

4. Counsel. .....................................................12

B. The Court Below Correctly Held ThatTrevino Applies To Indiana IneffectiveAssistance Claims...........................................13

1. The Davis-Hatton process is amechanism for expedited collateralreview, and is therefore irrelevant tothe Trevino inquiry. ..................................15

2. The structure and operation of theDavis-Hatton procedure make itvirtually impossible to raiseineffective 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 maynot review on habeas a claim not addressed by astate court because of a procedural default by the pe-titioner. See, e.g., Wainwright v. Sykes, 433 U.S. 72(1977) (holding that 28 U.S.C. § 2254 precludes fed-eral review of procedurally defaulted state claims).In Coleman v. Thompson, this Court held that a peti-tioner can overcome procedural default if he canshow cause for the default and prejudice from a vio-lation of federal law. 501 U.S. 722, 750 (1991).

Martinez v. Ryan applied Coleman in the contextof ineffective assistance of counsel claims, holdingthat “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause fora prisoner’s procedural default of a claim of ineffec-tive assistance at trial.” 566 U.S. 1, 9 (2012). TheCourt explained that if a State channels initial re-view of ineffectiveness claims into collateral proceed-ings, a lawyer’s failure to raise such a claim duringthose collateral proceedings could deprive a defend-ant of any consideration of that claim on the merits.Id. at 10 (“When an attorney errs in initial-reviewcollateral proceedings, it is likely that no state courtat any level will hear the prisoner’s claim.”). BecauseArizona required claims of ineffective assistance ofcounsel at trial to be raised in a collateral proceed-ing, the Court held that inadequate assistance ofcounsel in that collateral proceeding provided the“cause” necessary to empower a federal habeas courtto address the merits of the claim of ineffective assis-tance of counsel at trial. Id. at 4, 9.

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The year after its ruling in Martinez, the Courtin Trevino v. Thaler held that the Martinez rule ap-plies not only to those jurisdictions that prohibitclaims of ineffective assistance of trial counsel frombeing raised on direct review, but also to a jurisdic-tion that “in theory grants permission” to present ondirect review ineffective assistance of counsel at trialbut, “as a matter of procedural design and systemicoperation, denies a meaningful opportunity to do so.”569 U.S. 413, 429 (2013). The Court determined thatthe Martinez rule applies to ineffective assistanceclaims in Texas because the “structure and design ofthe Texas system in actual operation” made it “vir-tually impossible” for an ineffective assistance claimto be raised on direct appeal. Id. at 417.

Several courts of appeals have applied Martinezand Trevino to determine whether particular States’procedural systems qualify for the procedural defaultexception defined by Martinez and Trevino. ThisCourt has not granted review of any of those state-specific 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 appliesto 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 Ok-lahoma); Fowler v. Joyner, 753 F.3d 446 (4th Cir.2014), cert. denied, 135 S. Ct. 1530 (2015) (holdingthat Martinez-Trevino applies in certain circum-stances in North Carolina).

2. Indiana’s Procedures for Raising IneffectiveAssistance of Counsel Claims. Indiana permits de-fendants to raise claims of ineffective assistance oftrial counsel on either direct or collateral review. TheIndiana Supreme Court has stated that “a post-

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conviction hearing is normally the preferred forum toadjudicate an ineffectiveness claim.” Woods v. State,701 N.E.2d 1208, 1219 (Ind. 1998).

Ineffective assistance of trial counsel claimsraised on direct appeal are subject to several signifi-cant procedural constraints. First, the defendant islimited to the trial record—he or she may not use amotion to correct error to supplement the record insupport of an ineffectiveness claim. Id. at 1216-1217.Second, the defendant may not split ineffectivenessclaims, raising record-based claims on direct appealwhile reserving for collateral review those claimsthat require additional factual development. Id. at1220 (“The specific contentions supporting the [inef-fectiveness] claim, however, may not be divided be-tween the two proceedings.”). If the defendant raisesany ineffective assistance of trial counsel claim ondirect appeal, “the issue will be foreclosed from col-lateral review.” Ibid.

Indiana law provides that post-conviction collat-eral challenges may be instituted in two ways: either(1) by initiating a collateral review proceeding afterthe direct appeal is concluded; or (2) by requestingthat the Court of Appeals dismiss or suspend the di-rect appeal and remand the case to the trial court sothat a collateral review proceeding may be institutedprior to disposition of the direct appeal, with the trialcourt’s decision in the collateral review proceedingconsidered by the appellate court in tandem with thedirect appeal. Woods, 701 N.E.2d at 1219. The Indi-ana Supreme Court has stated that the second optionis “not to be used as a routine matter in adjudicatingthe issue of trial counsel’s effectiveness.” Id. at 1220.

This second option—labeled the “Davis-Hatton”procedure after the relevant Indiana Supreme Court

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decisions—is initiated by filing a motion with thestate court of appeals requesting that the defendant’sdirect appeal be suspended or dismissed and that thecase be remanded to the trial court. Slusher v. State,823 N.E.2d 1219, 1222 (Ind. Ct. App. 2005) (“[T]heDavis/Hatton procedure involves a termination orsuspension of a direct appeal already initiated, uponappellate counsel’s motion for remand or stay, to al-low a post-conviction relief petition to be pursued inthe trial court.”).

“The appellate court preliminarily screens themotions and remands to the trial court those cases inwhich an arguably meritorious motion is sought to bemade.” 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 hadfailed to make any showing that his claim of ineffec-tive assistance of counsel has a substantial likelihoodof success at trial, we denied his [Davis-Hatton] peti-tion, and this appeal ensued.”).

If the court of appeals grants the Davis-Hattonpetition, the case is remanded to the trial court,where the defendant then files his or her petition forpost-conviction relief. Woods, 701 N.E.2d at 1219.The defendant must raise all available grounds forpost-conviction relief in this original post-convictionpetition. Ind. Rules of Post-Conviction Remedies, § 8,perma.cc/X78R-H8HX.

If, after a full evidentiary hearing, the petitionfor post-conviction relief is denied, “an appeal fromthat post-conviction denial and the original directappeal will be consolidated but evaluated under sep-arate standards of review.” Pet. App. 12a. In particu-lar, a defendant wishing to appeal claims raised inthe petition for post-conviction relief “faces the rigor-

5

ous burden of showing that the evidence as a wholeleads unerringly and unmistakably to a conclusionopposite to that reached by the court.” Peaver v.State, 937 N.E.2d 896, 900 (Ind. Ct. App. 2010) (quo-tation marks, brackets, and citation omitted).

The Davis-Hatton procedure is rarely used. Agroup of Indiana public defenders informed the courtbelow that between 2008 and 2012, its attorneys filedapproximately 2,000 appeals and only four Davis-Hatton petitions. Pet. App. 14a.

The Indiana Court of Appeal’s 2016 report recitesthat the Court of Appeals disposed of 1,031 directcriminal appeals in 2016, only two of which it dis-posed of “by order.” Court of Appeals of Ind., 2016Annual Report 2, perma.cc/7UVF-6FRD. Even if oneassumes that these two cases were cases in which aDavis-Hatton petition had been filed, and the appealwas suspended or terminated, that means the Davis-Hatton procedure was successfully invoked in atmost 0.2% of the direct criminal appeals disposed ofby that court in 2016.

B. Factual Background

On March 5, 2009, fourteen-year-old DentrellBrown was sentenced to 60 years in prison on hishomicide conviction. State v. Brown, No. 20C01-0806-MR-00002, 2009 WL 2844532 (Ind. Cir. Ct.Mar. 5, 2009).

There was no forensic evidence tying Brown tothe crime, a murder that occurred during an allegeddrug sale. Pet. App. 3a. Instead, the State reliedprincipally on the testimony of jail house informerMario Morris. Ibid. Morris claimed that Brown andhis co-defendant, Joshua Love, had both confessed to

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the murder in separate conversations with Morris.Ibid.

Morris’s testimony about these conversationswas not consistent with the State’s theory of thecase. See Pet. 5 (characterizing Morris’s testimony as“almost identical [], but with significant differences”).Morris’s account of Love’s confession included nomention of Brown or anyone else having been pre-sent at the shooting. Pet. App. 94a-95a. Morris’s ac-count of Brown’s confession, moreover, included nomention of Love or anyone else having been presentat the shooting. Id. at 95a.

After Morris testified, both Brown and Lovemoved for a mistrial based on Bruton v. UnitedStates, 391 U.S. 123 (1968). Pet. App. 4a. The trialjudge denied their motions and both Love and Brownwere convicted of murder (Brown on a theory of ac-complice liability). Ibid.

C. Proceedings Below.

Brown raised three claims on direct appeal, in-cluding whether the trial court erred in denying themistrial motion. Pet. App. 4a. The Indiana Court ofAppeals denied relief on all counts. Id. at 103a.

Brown then filed a petition for post-conviction re-lief asserting that his trial counsel provided ineffec-tive representation by failing to move to sever Love’strial from Brown’s. Pet. App. 87a. The Indiana Courtof Appeals affirmed the denial of relief on that claim.Ibid.

Brown next filed a habeas petition in federal dis-trict court raising three issues, including an ineffec-tive assistance of counsel claim based on trial coun-sel’s failure to request an instruction limiting the useof Love’s statement, offered through Morris, to Love.

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Pet. App. 75a, 77a. Brown argued that he should begiven the opportunity to overcome procedural defaultunder Martinez and Trevino. Id. at 77a-78a. The dis-trict court dismissed all of his claims without holdingan evidentiary hearing. Id. at 69a-73a.

The court of appeals reversed and remanded, or-dering the district court to conduct an evidentiaryhearing on Brown’s ineffective assistance of counselclaim. Pet. App. 6a. In doing so, the court held that“the rule established in Martinez and Trevino appliesto § 2254 cases in Indiana so that [Brown] may try toovercome the procedural default of his claim for inef-fective assistance of trial counsel.” Id. at 7a

Applying the test prescribed by this Court inTrevino, the Seventh Circuit determined that “twocharacteristics of Indiana practice—the ‘proceduraldesign’ and ‘systemic operation’—convince us thatthe Martinez-Trevino doctrine applies in Indiana.”Pet. App. 11a.

The court pointed to several factors that forcealmost all ineffective assistance of trial counselclaims in Indiana into collateral review. For exam-ple, “presenting a claim for ineffective assistance isan all-or-nothing proposition in Indiana” because adefendant cannot present one ground on direct re-view and another on collateral review. Pet. App. 11a-12a. And Indiana does not allow counsel on directappeal to use a motion to correct errors to supple-ment the record. Pet. App. 14a. The court concludedthat “Indiana rules work together to make it unlikelythat an Indiana defendant will be able to raise ade-quately on direct appeal a claim for ineffective assis-tance of trial counsel.” Pet. App. 14a.

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The court also found it significant that Indianacourts “routinely direct defendants to bring claimsfor ineffective assistance of trial counsel on collateralreview and warn against bringing them on direct re-view.” Pet. App. 15a.

Turning to the Davis-Hatton procedure, the courtof appeals observed that, because it is a means of ad-vancing the timing of collateral review proceedings,it could not possibly supply “meaningful” direct re-view of an ineffective assistance of trial counselclaim. Pet. App. 14a.

The court of appeals further determined thatBrown had sufficiently alleged cause for failing toraise the ineffective assistance claim on collateral re-view in state court, holding that “Brown has offeredevidence that his post-conviction counsel’s represen-tation fell below an objective standard of reasonable-ness so that he is entitled to an evidentiary hearingon the issue.” Pet. App. 18a. It also found that theunderlying ineffective assistance of trial counselclaim was substantial. Id. at 23a-26a.

Judge Sykes dissented, stating that the Davis-Hatton procedure furnishes sufficient opportunity todevelop the factual record necessary to support anineffectiveness claim at the direct appeal stage. Pet.App. 32a. Judges Sykes, Flaum, and Easterbook dis-sented from the denial of rehearing en banc. Id. at39a-40a.

REASONS FOR DENYING THE PETITION

The court of appeals’ decision does not conflictwith any decision of this Court or of another lowercourt. Every court of appeals to consider whether theMartinez-Trevino exception applies to ineffective as-sistance of trial counsel claims in a particular State

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has utilized a totality-of-the-circumstances testbased on an examination of the same factors.

The Seventh Circuit correctly applied that test toIndiana’s procedural system. This Court’s “custom onquestions of state law ordinarily is to defer to the in-terpretation of the Court of Appeals for the Circuit inwhich the State is located.” Elk Grove Unified Sch.Dist. v. Newdow, 542 U.S. 1, 16 (2004) (citation omit-ted). And the application of Trevino turns almost en-tirely on interpreting state law. Review by this Courtis not warranted.

A. The Courts Of Appeals Apply The SameTest In Assessing States’ ProceduresUnder Martinez And Trevino.

Every court of appeals to apply the Martinez-Trevino test to a State’s procedural framework forasserting ineffective assistance of trial counselclaims has utilized the same test, based upon the fac-tors that this Court canvassed in determiningwhether Texas’s procedures made it “virtually im-possible for appellate counsel to adequately presentan ineffective assistance of trial counsel claim on di-rect review.” Trevino v. Thaler, 569 U.S. 413, 423(2013) (quotation marks, brackets, and citation omit-ted).

Courts assess (1) the extent to which state courtsdirect these claims to a particular procedure; (2) thefrequency with which the procedures are actuallyused; (3) the time available to a defendant to invokethe procedures; and (4) the continuity of counsel fromtrial to the various post-trial procedures. No one fac-tor is determinative: courts evaluate the totality ofthe circumstances in concluding whether it is “virtu-

10

ally impossible” to present the claim on direct re-view.

1. Judicial direction.

Trevino considered whether Texas’s procedures“would create significant unfairness * * * because[the State’s] courts in effect have directed defendantsto raise claims of ineffective assistance of trial coun-sel on collateral, rather than direct, review.” Id. at425-426. Courts of appeals therefore look to the opin-ions of state appellate courts to determine whetherthey have directed claims of ineffective assistance ofcounsel to collateral review proceedings.

For example, in Runningeagle v. Ryan, 825 F.3d970 (9th Cir. 2016), the Ninth Circuit observed thatthe Arizona Supreme Court “strongly urged” defend-ants to bring ineffective assistance of counsel claimsin collateral review proceedings. Id. at 980.1 TheSixth Circuit did the same in Sutton v. Carpenter,where the court explained that “the message over-whelmingly communicated [to Tennessee defend-ants] is that the claims are best resolved, with leastrisk to the defendant, in post-conviction proceed-ings.” 745 F.3d 787, 795 (6th Cir. 2014). That courtreached the same conclusion regarding Kentuckyprocedures, explaining that “Kentucky courts havenoted ‘the danger in raising an ineffective assistanceof counsel claim on direct appeal.’” Woolbright v.Crews, 791 F.3d 628, 635 (6th Cir. 2015) (quotingWilson 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), therelevant events in Runningeagle occurred before the ArizonaSupreme Court held that ineffective assistance of trial counselclaims must be asserted in collateral review proceedings.

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845, 853 (7th Cir. 2015) (holding that Martinez-Trevino applies to the federal system, pointing outthat “the [Supreme] Court criticized the practice ofbringing these claims on direct appeal”).

2. Actual use.

Courts also consider the frequency with whichnominally available procedures are actually used. Asthis Court recognized in Trevino, the technical avail-ability of an obscure and inaccessible procedure forasserting an ineffective assistance claim on directappeal does not mean there is an opportunity formeaningful review on direct appeal. See Trevino, 569U.S. at 427 (“[T]he procedural possibilities to whichTexas now points seem special, limited in their ap-plication, and, as far as we can tell, rarely used.”).

For example, in Coleman v. Goodwin, the FifthCircuit found that Trevino applied in Louisiana, be-cause as in Trevino, nominally available direct ap-peal procedures had been used in only a “handful ofcases,” best characterized as “outliers.” 833 F.3d 537,542-543 (5th Cir. 2016). Similarly, in Woolbright, theSixth Circuit found it telling that Kentucky could notcite even one example of a nominally available di-rect-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 defendantswith sufficient time to create an adequate appellaterecord on the ineffective assistance issue. Severalcourts have found Trevino applicable after determin-ing that state procedures simply do not give enoughtime to create an adequate record on an issue.

In Woolbright, for example, the Sixth Circuit re-lied heavily on the fact that Kentucky procedures re-

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quired defendants to file a motion for a new trialwithin five days of the verdict and prohibited exten-sions of time, yet did not require trial transcripts tobe available for at least 50 days. Ibid. The court inSutton similarly observed that in Tennessee, motionsfor new trials must be filed within 30 days of sen-tencing—even though trial transcripts might not beavailable until much later. 745 F.3d at 792.

On the other hand, courts have found that somedirect review procedures do provide adequate time tocreate 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 fromthe date the [court] receives the trial record andtranscripts”); Lee v. Corsini, 777 F.3d 46, 60 (1st Cir.2015) (noting that Massachusetts provides defend-ants ample time to amass a record).

4. Counsel.

Finally, courts frequently assess whether trialcounsel’s continuing representation of the defendanton direct appeal precludes ineffective assistanceclaims from being raised on direct review. After all, itis unlikely that trial counsel will be willing to arguehis own ineffectiveness on appeal.

For this reason, in Sutton, the Sixth Circuitfound that Trevino applied in Tennessee because itsappointed trial counsel was obligated to continuerepresenting the defendant through direct appeal,absent good cause. 745 F.3d at 792-793. Courts havereached the same conclusion about Kentucky andcapital defendants in Arkansas. See Woolbright, 791F.3d at 632; Sasser v. Hobbs, 735 F.3d 833, 851-852(8th Cir. 2013).

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* * *

Judicial direction, frequency of actual use, tim-ing, and continuity of counsel are the factors thatcourts of appeals consistently evaluate when deter-mining whether the Martinez-Trevino rule applies ina particular State. Not surprisingly, courts havefound Trevino to apply in some States but not in oth-ers. But that is a result of differences in state proce-dures, not because the courts are applying differenttests.

B. The Court Below Correctly Held ThatTrevino Applies To Indiana IneffectiveAssistance Claims.

Indiana defendants have two options for raisingclaims of ineffective assistance of trial counsel: (1) inthe opening brief on direct appeal; or (2) through apost-conviction collateral review proceeding. Andthey have two options for initiating collateral reviewproceedings: (1) waiting until direct review is con-cluded; or (2) invoking the Davis-Hatton procedureafter the docketing of the direct appeal, and request-ing the termination or suspension of that direct ap-peal, to enable the expedited initiation of a collateralreview proceeding in the trial court.

An Indiana defendant’s claim of ineffective assis-tance of trial counsel may be raised either on directappeal or in a collateral proceeding—but not in both.Raising any claim of ineffective trial counsel on di-rect appeal bars the defendant from raising any suchclaim in a collateral proceeding, even if it rests ongrounds different from those presented on direct ap-peal. Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998) (“The defendant must decide the forum for ad-judication of the issue—direct appeal or collateral

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review. The specific contentions supporting theclaim, however, may not be divided between the twoproceedings.”).

The State does not seriously argue that the directappeal option is sufficiently viable to preclude theapplication of Trevino. Nor could it.

There is no mechanism for supplementing thetrial record, and the defendant who chooses thisroute must raise all ineffectiveness claims on directappeal. See pages 3-5, supra.

Drawing on long-established federal practice, theIndiana Supreme Court has explained that ineffec-tiveness claims raised in the opening brief on directappeal “almost always fail” because “[w]hen the onlyrecord on which a claim of ineffective assistance isbased is the trial record, every indulgence will begiven to the possibility that a seeming lapse or errorby defense counsel was in fact a tactical move, flawedonly in hindsight.” Woods, 701 N.E.2d at 1216 (citingUnited States v. Taglia, 922 F.2d 413, 417-418 (7thCir. 1991)).

Indeed, the Indiana Supreme Court has refusedto address an ineffective assistance of counsel claimasserted on direct appeal, in McIntire v. State, 717N.E.2d 96, 102 (Ind. 1999), later explaining that “be-cause Woods expressed a strong preference for con-sidering [ineffective assistance of trial counselclaims] in post-conviction proceedings, we declined toaddress the ineffective assistance of counsel claim inMcIntire at all.” Landis v. State, 749 N.E.2d 1130,1132-1133 (Ind. 2001).2

2 The infrequency with which defendants assert ineffectivenessclaims on direct appeal is confirmed by Indiana’s petition for

15

Rather than pointing to direct appeal as the pro-cedural route that Brown was obligated to pursue,the State invokes the Davis-Hatton procedure—asserting that it provides most defendants a mean-ingful opportunity for the review of ineffective assis-tance of trial counsel claims on direct appeal.

The Seventh Circuit correctly held that it doesnot. That holding, which is entirely consistent withTrevino, presents no conflict with the decisions ofother circuits and does not warrant further review.

1. The Davis-Hatton process is a mechanismfor expedited collateral review, and istherefore irrelevant to the Trevino in-quiry.

Indiana’s argument fails at the threshold be-cause the Davis-Hatton procedure does not permitthe presentation of ineffectiveness claims on directreview. Rather, it is a means of initiating a collateralreview proceeding on an expedited basis. BecauseTrevino does not require a defendant to utilize a spe-

certiorari, which identifies only five cases since 2001 in whichdefendants won on ineffectiveness claims raised on direct ap-peal. All involve narrow claims based on the trial record: Perezv. State, 748 N.E.2d 853, 855 (Ind. 2001) (for failure to object toa 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 speedytrial violation); Williams v. State, 983 N.E.2d 661 (Ind. Ct. App.2013) (table) (for failure to object to the introduction of largeamounts of prejudicial propensity evidence); Pryor v. State, 973N.E.2d 629 (Ind. Ct. App. 2012) (for failure to file a timely de-mand for a jury trial because counsel inadvertently miscalcu-lated the deadline date); Lewis v. State, 929 N.E.2d 261 (Ind.Ct. App. 2010) (for failure to file a necessary jury trial requestwhen defendant had clearly stated on the record that he wanteda jury trial).

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cific collateral review proceeding—particularly in theabsence of a state law requiring that the defendantdo so—the existence of the Davis-Hatton procedure isirrelevant to the Trevino analysis.

To begin with, Indiana decisions make clear thatthe Davis-Hatton procedure is a means of institutingcollateral review, not a means of supplementing thedefendant’s direct appeal. It involves “a terminationor 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 pur-sued in the trial court.” Slusher, 823 N.E.2d at 1222;see also Woods, 701 N.E.2d at 1219 (explaining thata Davis-Hatton petition, if granted, “allows a defend-ant to suspend the direct appeal to pursue an imme-diate petition for postconviction relief”). It is to beused, in the Indiana Supreme Court’s words, in the“exceptional case in which the defendant prefers toadjudicate a claim of ineffective assistance before di-rect appeal remedies have been exhausted.” Woods,701 N.E.2d at 1219-1220.

That a Davis-Hatton petition is nothing morethan a mechanism for accelerating collateral reviewis confirmed by the step that follows the granting ofthe petition: the filing of a post-conviction petition inthe trial court. This petition is treated the same asany other post-conviction petition and is governed bythe same procedural rules under Indiana Post-Conviction Rule 1. See Peaver v. State, 937 N.E.2d896, 900 (Ind. Ct. App. 2010) (applying Rule 1 in con-text of collateral proceeding instituted through theDavis-Hatton procedure).

Once the Davis-Hatton procedure has been in-voked, the trial court’s determination is reviewed onappeal under the standard of review applicable to

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collateral review proceedings. Thus, if the post-conviction petition that results from the granting of aDavis-Hatton petition is denied, “an appeal from thatpost-conviction denial and the original direct appealwill be consolidated but evaluated under separatestandards of review.” Pet. App. 12a. In particular, adefendant wishing to appeal the trial court’s rulingsin the collateral review proceeding “faces the rigor-ous burden of showing that the evidence as a wholeleads unerringly and unmistakably to a conclusionopposite to that reached by the court”—the standardthat also applies to collateral review proceedings notinitiated through the Davis-Hatton procedure.Peaver, 937 N.E.2d at 900 (quotation marks, brack-ets, and citation omitted).

The State relies on lower court decisions address-ing Oklahoma and Massachusetts procedures. SeeFairchild v. Trammell, 784 F.3d 702 (10th Cir. 2015);Lee v. Corsini, 777 F.3d 46 (1st Cir. 2015). But thoseprocedures enabled defendants to create an expand-ed direct appeal record and made clear that the de-terminations would be subject to the standard gov-erning direct appeals. Fairchild, 784 F.3d at 721;Lee, 777 F.3d at 61. That is totally different from theDavis-Hatton procedure, which results in the institu-tion of a separate collateral review proceeding, sub-ject to the rules governing such proceedings in thetrial court and on appeal—which is merely heard bythe appellate court in tandem with the separate di-rect appeal.

The Seventh Circuit therefore correctly held thatthe accelerated collateral review proceeding trig-gered by the filing of a Davis-Hatton petition “doesnot provide, in the Trevino Court’s words, ‘meaning-ful review’ of an ineffective assistance counsel claim

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on direct review: it simply is not direct review.” Pet.App. 14a.

2. The structure and operation of the Davis-Hatton procedure make it virtually im-possible to raise ineffective assistanceclaims.

Even if the Davis-Hatton procedure could some-how be relevant to the Trevino inquiry notwithstand-ing the fact that this procedure does not provide anopportunity to raise ineffective assistance claims ondirect review—which is the relevant question underTrevino—that procedure does not provide a meaning-ful opportunity to raise ineffective assistance of trialcounsel claims. Multiple features of the Davis-Hattonprocedure mandate that conclusion.

First, a party seeking to invoke the Davis-Hattonprocess must demonstrate to the appellate court—based on the trial record alone—that there is a sub-stantial likelihood of success on the merits of the in-effectiveness claim. Davis v. State, 368 N.E.2d 1149,1151 (Ind. 1977). See also Thompson v. State, 671N.E.2d 1165, 1168 n.2 (Ind. 1996) (denying Davis-Hatton petition because “the appellant had failed tomake any showing that his claim of ineffective assis-tance of counsel has a substantial likelihood of suc-cess at trial”); Slusher, 823 N.E.2d at 1222 (“If theappellate court preliminarily determines that themotion has sufficient merit, the entire case is re-manded for consideration of the petition for post-conviction relief.”).

Making such a showing requires time and an in-vestigation, neither of which is available in Indiana.The Davis-Hatton petition must be filed in the courseof appellate briefing—and logically, with, if not be-

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fore, the filing of the appellant’s brief. That brief isdue 30 days after the filing of the trial transcript.Ind. R. App. P. 45.

In addition, as the Indiana Supreme Court hasexplained, “expecting appellate lawyers to look out-side the record for error is unreasonable in light ofthe realities of appellate practice. Direct appealcounsel should not be forced to become a second trialcounsel. Appellate lawyers may have neither theskills nor the resources nor the time to investigateextra-record claims, much less to present them co-herently and persuasively to the trial court.” Woods,701 N.E.2d at 1216

In the States whose procedures are relied on byIndiana—Massachusetts and Oklahoma—the appel-late attorney has at least 120 days after the court ofappeals receives the trial transcript before appel-lant’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 pro-cedures permitting the addition of new facts to therecord—a motion for a new trial (in the case of Mas-sachusetts) or a request to supplement the record (inthe case of Oklahoma).

Second, the Indiana Supreme Court has effec-tively directed defendants to reserve ineffective as-sistance of trial counsel claims for collateral reviewproceedings following a decision on direct appeal. InWoods, the Indiana Supreme Court explained that “apostconviction hearing is normally the preferred fo-rum to adjudicate an ineffectiveness claim,” 701N.E.2d at 1219, and that the Davis-Hatton procedureis therefore “not to be used as a routine matter in ad-judicating the issue of trial counsel’s effectiveness,”id. at 1220.

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That is remarkably similar to the directive fromthe Texas Court of Criminal Appeals upon which thisCourt relied in Trevino: “Texas’ highest criminalcourt has explicitly stated that ‘[a]s a general rule’the defendant ‘should not raise an issue of ineffectiveassistance of counsel on direct appeal,’ but rather incollateral review proceedings.” 569 U.S. at 426 (quot-ing Mata v. State, 226 S.W.3d 425, 430 n.14 (Tex.Crim. App. 2007)).

Third, appellate counsel must convince the courtof appeals that use of the Davis-Hatton procedure“has a substantial likelihood of rendering moot theissues raised on direct appeal and would effect a netsavings of judicial time and effort,” and “that the cir-cumstances of the case are such that undue hardshipwould result to appellant were he required to awaitcompletion of his appeal to petition for post-conviction relief.” Davis, 368 N.E.2d at 1151. Theserequirements add additional obstacles to the use ofthe Davis-Hatton procedure and confirm its status asan exceptional procedure.

Fourth, as the Seventh Circuit emphasized, “[a]defendant who uses the Davis-Hatton procedure willbe barred from asserting any new claim for ineffec-tive assistance on direct appeal, or in any of the con-solidated proceedings or additional post-convictionproceedings that may follow.” Pet. App. 13a; see alsopages 3-5, supra.

When the Indiana Supreme Court in Woods ar-ticulated that rule barring splitting of ineffective as-sistance of counsel claims, it anticipated that therule “will likely deter all but the most confident ap-pellants from asserting any claim of ineffectivenesson direct appeal.” Woods, 701 N.E.2d at 1220. Thisrule, which makes the use of the Davis-Hatton pro-

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cedure a deeply risky business, renders Indiana’sprocedures “even more restrictive than the Texasprocedures in Trevino.” Pet. App. 14a.

On this point, the contrast with Massachusetts’sand Oklahoma’s procedures is stark. In Oklahoma,raising an ineffective assistance of trial counsel claimon direct appeal is a prerequisite—not a bar—to rais-ing such a claim on collateral review. Similarly, Mas-sachusetts General Laws Chapter 278 states thatwhile a defendant is free to file any number of mo-tions for a new trial as he wants, he is not entitled toappellate review of a denial of such a motion if theissues it raises “could have been raised on direct ap-peal or in his first motion for a new trial.” Lee v.Corsini, 777 F.3d 46, 57 (1st Cir. 2015). Both Massa-chusetts and Oklahoma thus effectively require de-fendants to raise ineffective assistance of trial coun-sel claims on direct appeal. The same is true of theWisconsin procedure upheld in Nash v. Hepp, 740F.3d 1075, 1079 (7th Cir. 2014) (“Wisconsin law ex-pressly allows—indeed, in most cases requires—defendants to raise claims of ineffective assistance oftrial counsel as part of a consolidated and counseleddirect appeal.”). The opposite is true in Indiana,where raising a claim of ineffectiveness on direct ap-peal actually bars a defendant from raising it on col-lateral review.

In light of the Indiana court’s directives and theprocedural obstacles to use of the Davis-Hatton pro-cedure, it is no wonder that use of the Davis-Hattonprocedure is exceptionally rare. The submission be-low by a group of Indiana public defenders confirmsthat between 2008 and 2012, its attorneys filed ap-proximately 2,000 appeals and only four Davis-Hatton petitions. Pet. App. 14a.

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The Seventh Circuit properly concluded that theDavis-Hatton procedure is “special, limited, . . . [and]rarely used.” Ibid. (citing Trevino, 569 U.S. at 427).In so concluding, the Seventh Circuit reasoned inlockstep with this Court’s statement in Trevino that“special, rarely used procedural possibilities” couldnot overcome “Texas courts’ own well-supported de-termination that collateral review normally consti-tutes the preferred—and indeed as a practical mat-ter, the only—method for raising an ineffective-assistance-of-trial-counsel claim.” 569 U.S. at 427.

The conclusion of the court below is entirely con-sistent with the decisions of the First and Tenth Cir-cuit holding, respectively, that Massachusetts andOklahoma procedures make direct appeal a meaning-ful route for raising ineffective assistance claims.

In Lee, the First Circuit emphasized that defend-ants faced “no unrealistic time limits,” were able tosupplement the factual record, and did not risk waiv-ing other ineffective assistance claims. 777 F.3d at60. The court balanced this procedural designagainst a mild directive from the Massachusetts Su-preme Court that “the preferred method for raising aclaim of ineffective assistance of counsel is through amotion for a new trial.” Ibid. (citing Commonwealthv. Zinser, 847 N.E.2d 1095, 1098 (Mass. 2006)).

Here, by contrast, the defendant cannot supple-ment the record on which the appellate court adjudi-cates his or her Davis-Hatton petition, and riskswaiving all other claims. And the Indiana courtshave much more clearly expressed their preferencethat these claims be raised in collateral proceedingsfollowing the resolution of the direct appeal.

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The Tenth Circuit in Fairchild also focused onthe time allowed for record development and citednumerous examples of successful ineffective assis-tance of trial counsel claims raised on direct appeal.784 F.3d at 722-723. Unsurprisingly, given the num-ber of successful claims, there were no directivesfrom the Oklahoma courts advising defendants toraise their claims in collateral proceedings.

The different results in these cases thereforeturn entirely on the different state procedures anddifferent statements by state courts—as well as thefact that the Davis-Hatton procedure is not a route todirect review but rather a mechanism to speed upthe initiation of a collateral review proceeding.

CONCLUSION

The petition for a writ of certiorari should be de-nied.

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Respectfully submitted.

MICHAEL K. AUSBROOK

P.O. Box 1554Bloomington, IN 47402(812) 322-3218

EUGENE R. FIDELL

Yale Law SchoolSupreme Court Clinic*

127 Wall StreetNew Haven, CT 06511(203) 432-4992

ANDREW J. PINCUS

Counsel of RecordCHARLES A. ROTHFELD

PAUL W. HUGHES

MICHAEL B. KIMBERLY

Mayer Brown LLP1999 K Street, NWWashington, DC 20006(202) 263-3000apincus@mayerbrown.com

Counsel for Respondent

FEBRUARY 2018

* The representation of respondent by a clinic affiliated withYale Law School does not reflect any institutional views of YaleLaw School or Yale University.