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. 
2 No. 16-1014

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).
No. 16-1014 3

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 
4 No. 16-1014

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 
No. 16-1014 5

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.” 
6 No. 16-1014

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.
No. 16-1014 7

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 
8 No. 16-1014

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 
No. 16-1014 9

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.
10 No. 16-1014

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 
No. 16-1014 11

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 
12 No. 16-1014

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 
No. 16-1014 13

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 
14 No. 16-1014

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 
No. 16-1014 15

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).
16 No. 16-1014

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 
No. 16-1014 17

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 
18 No. 16-1014

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.
No. 16-1014 19

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) 
20 No. 16-1014

(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.
No. 16-1014 21

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 
22 No. 16-1014

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-
No. 16-1014 23

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. 
24 No. 16-1014

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.
No. 16-1014 25

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 
26 No. 16-1014

(“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 
No. 16-1014 27

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 
28 No. 16-1014

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 
No. 16-1014 29

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.
30 No. 16-1014

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],
No. 16-1014 31

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).
32 No. 16-1014

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 
No. 16-1014 33

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 
34 No. 16-1014

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 
No. 16-1014 35

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.