### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 16

- 1014
D ENTRELL B ROWN , P etitioner

- Appellant ,

v.

R ICHARD B ROWN , 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

.

____________________
A RGUED S EPTEMBER 28, 2016

— D ECIDED F EBRUARY 1, 2017

____________________

Before K ANNE , S YKES , and H AMILTON , Circuit Judges

. H AMILTON , 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 st ate 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 co

defendant from testimonial confessions of other co

- defendants). The district court denied the habeas petition, finding that Br own 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.

— , 133S. Ct. 1911 (2013), is available to federal habeas corpus petitioners in Indiana who have substantial claims for ineffective assistance of trial couns el 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 f or 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, investiga tors relied on information from interviews with community members. After interviewsprovided 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 wi th 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 Mor ris. Morris testified that, while Morris, Brown, and Lovewere all in the Elkhart County Jail, Brown and Love each confessed separately to involvement in the murder. Testifyingfirst 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 exa mple, Morris testified that Brown said he had struck Wenger with the butt of a .45 caliber handgun, discharging one unintentional4 No . 16

- 1014

shot. A critical feature of Morris’s testimony for Bruton purposes was that his account of Love’s confession included no menti on 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 a nd 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, includ ing 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: ineff ective assistance of trial counsel for having failed to move to severNo. 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. Thetrial 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 tr ial 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. Brow n , 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 andhis 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 holdthat Brown has offered some evidence of deficient performance by his post

- conviction relief counsel and has asserted a substantial claim of ineffective assist ance of trial counsel. Wereverse and remand the case to the district court for an evidentiary hearing on both claims for ineffective assistance, firston the procedural default issue and then, if the default is excused, on the merits of the trial

- based cl aim. 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 federaldistrict court, petitioner’s claims were based on the Confrontatio n Clause pursuant to Bruton rather than the Indiana Rules of Evidence. Under this theory, Brown’s claim of ineffectiveassistance of trial counsel for failure to request a limiting instruction based on the Indiana Rules of Evidence would be forfeited now o n 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’sstatement, 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 ofthe motion for a mistrial, and the federal district court evaluated Brown’s claim separately from the Confrontation Clause issue. Thus, petitioner’s specific c laim

— 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 Tr evino 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 Ma rtinez

- 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 address ed 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 proc edural 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 procedu rally 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 pr ocedural 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 habeas8 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 po tentially 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 in effective assistance oftrial 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 d istinction between (1) a State that denies permission to raise the claim on direct appealand (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 distincti on 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 applyingNo. 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 Martinez

Trevino 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 assistanceclaims for direct appeal,” so “the situation of a federal petitioner is the same as t he 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 circumsta nces); 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

- Trevinoexception 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 (7 th Cir. 2015) (“Wisconsin law treats postconviction relief in an unusua l way, insofar as it allows defendants to raisea claim of ineffectiveness of counsel simultaneously with a direct appeal.”); Nash v. Hepp , 740 F.3d 1075, 1079 (7 th Cir. 2014) (“Wisconsin law expressly allows

— indeed, in most cases requires

— defendants to ra ise 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, 6 1 (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 stronglydiscourage 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 DesignThe 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 cons ideringalternative 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 po stconviction 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 specificNo. 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 ineffectiveassistance 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 casein which the defendant prefers to adjudicate a claim of ineffective assistance before direct appeal remedi es have been exhausted.” Id . at 1219

– 20. Under these rare circumstances, Woods explained, a procedure known in Indiana as the Davis

Hatton procedure allows a convicted appellant to suspend or terminate his direct appeal to pursue a petition for post

- convic tion 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 i f 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 pos t

- 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

- conviction12 No . 16

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proceedings that may follow. Peav er , 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 122 0.
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 ineffec tive assistance of trial counsel cannot beshown 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 a ppeal “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.
Additio nal aspects of Indiana procedure align with other aspects of Trevino . As in our federal cases, a defendant whoasserts 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 appea l 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 forNo. 16

- 1014 13

new trial is an inadequate vehic le 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 ineffectiveassistance 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. A micus Indiana Public Defender Council tells us that between 2008 and 2012, its attorneys filed approximately 2000 a ppeals and only four Davis

Hatton petitions.
b. Systemic OperationIndiana 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 butthe 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 Indianacourts’ 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 against14 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 de cline addressing a defendant’s claim for ineffectiveness of trial counsel actually presented on directappeal, believing it “preferable for the defendant to adjudicate his claim ... in a post

- conviction relief proceeding.” McIntire v. State , 717 N.E.2d 96, 1 02 (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 di rect 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 410504 7, 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 T exas 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 IndianaNo. 16

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Public Defender Council “consistently advises against appellate counsel present ing 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 t hat began, “NOOOOOO!!!” Amicus Br. of Ind. Pub. Def. at 21a. For these reasons, in the language of Trevino , “as a matterof its structure, design, and operation,” the Indiana procedural system “does not offer most defendants a meaningful opportunity to pre sent 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 isavailable 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 deficie nt 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 performa nce 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 ye t 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’sNo. 16

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codefendant” as a remedy for a Bruton violation. The problem with this claim, a s 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 selectingwhich 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 p erformance 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 assist ance 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 actually18 No . 16

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presented to those that might have been presented. Wher ecounsel chose to pursue just one issue that was a virtually certain loser, as in Shaw v. Wilson , a petitioner may show deficientperformance by showing that a much stronger claim or argument was available. 721 F.3d 908, 915 (7th Cir. 2013); see also Viny ard , 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.

Petit ioner argues that a viable ineffective assistance of trial counsel claim could have been premised on failure to seek alimiting instruction as to the hearsay Morris offered when testifying to his conversation with Love. See Ind. R. Evid. 801(c) (defining h earsay), 802 (making hearsay inadmissible), and105 (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

- convic tion 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 ofcounsel’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 stand ards 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 resolu tion ... 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 p roblem 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 s tandard 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 a rgument 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

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(concluding “th at 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 , 7 40 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, w e 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, beyondour 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 toclaims 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

a ctual 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 Stat e relied heavily on the testimony of MarioMorris 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 circum stantial 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 o ver 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 no t) 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 fake22 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 gottenout 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 testimon y. It was read back to them in the courtroom. Morris’s testimony as to his conversation with Love, al

though admissible against Love, was inadmissible hearsay as offered against Brown. As petitioner’s brief emphasizes, “like perhaps all jurisdictions, India na courts assume that jurorsfollow their instructions.” If Brown’s trial attorney had requested the limiting instruction to which Brown was probablyentitled, it would have left the prosecution to rely on the arguably weak remainder of its case against Br own. 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 conversationwith Love, which mirrored so closely the testimony of Morris’s conv ersation 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 strongthat 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 hosti le 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 wasover 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 th e shooting, but he could neither identify Brown nor say what the twoboys 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 f or ineffectiveassistance 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 counselclaim. On the record before us, reasonable jurists “could disagree ... or ... conclude the issues presented” in petitioner’sbrief 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 Mar tinez

- 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 co unsel. 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 performan ce by post

- conviction counsel, Brown’s default will be excused, and he willbe 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 inst ruction.No. 16

- 1014 25

S YKES , 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 princ iples 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 proc edural defa ult enforc es this principle : A federal court will not hear a state prisoner ’s habeas claim unless t he prisoner has f irst p resent ed it to the state courts for one full round of review. Id

. (citing Richardson v. Lemke , 745 F.3d 258, 268 (7th Cir. 2014)). Req uiring state prisoners to exhaust state remedies serves important federalism interests . T he “state courts are the principal forum for asserting constitutional challenges to state convic tions , ” Harrington v. Richter , 562 U.S. 86, 103 (2011) , and f ederal 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 sta te convictions disturbs the State’s “ significant interest in repose for co ncluded litigation ... and intrudes on state sovereignty to a degree matched by few exercises of federal judicial author ity.” Richter , 562 U.S. at 103 (quotation marks omitted)

. A ccord ingly, “[f]ederal courts sitting in habeas are not an alternative forum for try ing facts and issues which a priso ner 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 Ant iterrorism and Effective Death Penalty Act of 199626 No. 16

- 1014

(“AEDPA”), 28 U.S.C. § 2254(d), protects these state interests

. So does the ex haustion requirement. For this reason, a federal court may review a defaulted claim only in very limited circ umstances

. The court may excuse a procedural default only if the prisoner (1) demonstrates cause for the default and consequent prejudice or (2) makes a convincin g 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 7 49

– 5 0 ; Jones v. Calloway , 842 F.3d 454 , 461 (7th Cir. 2016).
“Cause” is an objective factor external to the defense that impedes t he present ation of the claim to the state co urt s

. Coleman , 501 U.S. at 753; Weddington v. Zatecky , 721 F.3d 456, 465 (7th Cir. 2013). A ttorney error ordinarily doesn’t sat isfy the externality requirement b ecause 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 Amen dment right to the effective assistance of counsel. Id

. at 755. In that situa tion, t h e risk of error falls on the S tate as a corollary
to its constitutional duty to provide effective counsel. Id

. at 754. It follows , then, that b ecause the re is no Sixth Amen dmen t right to counsel o n collateral review , a ttorney negl igence at that stage is not cause to excuse a procedural d efault. Id

. at 755. As my colleagues explain, in Martinez v. Ryan , 132 S. Ct. 1309 (2012) , the Supreme Court recognized a narrow exce ption to th e Coleman rule

. Luis Martinez, an Arizona prisoner, alleged i n his federal habeas petition that his trial counsel was constitutionally ineffective in violation of the ruleNo. 16

- 1014 27

articulated in Strickland v. Washington , 466 U.S. 668 (1984). H e had counsel for his initial collateral

- review proceeding , but his attorney did not present th is claim to the state court s

. 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 collateral

review proceeding

. Id

. Th e Cour t held that th is procedural requirement of Arizona law warranted an equitable exce ption 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 i f state law requires a prisoner to bring a Strickland claim on collateral review , a default at that stage of the criminal process does n o t 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 131 8. The Court remanded Martinez’s case, directing the lower courts
to determin e whethe r his state postconviction counsel was constitutionally ineffective , and if so, whether t h e underl ying claim for ineffective assistance of trial counsel was “substantial.” Id

. at 1321. The Court expanded the Martinez exception i n 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 op portunity to develop the factual record necessary to effectively litigate the claim on direct review

. Car los Trevino was a Texas prisoner sentence d to28 No. 16

- 1014

death for murder . H e alleged in h is federal habeas petition that his trial counsel was ineffective for failing to adequately investigate and present mitigatin g circumstances in the penalty phase of his trial. Id

. at 1915. The state trial judge had appointed new counsel for Trev ino’s direct appeal, but th e attorney did n o t raise th is claim. The judge appointed still another attorney for c ollateral review ; that attorney too failed to raise the claim

. Martinez could not help Trevino

. U nlike Arizona, Tex as does not expressly require prison ers to reserve Strickland claims for collateral review

. Id

. at 1918. But the state’s proc edural rules make it “all but impossible” to raise such a claim on direct appeal

. Id. at 1920. That’s because a claim of ineffe ctive assistance of trial counsel almost always require s deve lopment of a factual record, but the time constraints imposed by Texas law ( most nota bly, 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 “ ‘ virtua lly impossible for appellate couns el to adequately present an ineffective assistance [of trial counsel] claim’ on direct a ppeal.” Id

. (quoting Robinson v. State , 16 S.W. 3 d 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 procee dings.” Id

. at 1920 (quoting Mata v. State , 226 S.W.3d 425, 43 0, n.14 (Tex. Crim. App. 2007) )

. Th ese two features of Texas law

— a procedural system that mak e s it virtually impossible to effectively litigate aNo. 16

- 1014 29

Strickland claim on direct revie w and an affirmative judicial directive not to do so

— put Trevino in much the same pos ition 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 oppo rtunity to do so is a d istinction without a difference

. ”). So t he Court extended the Martinez exc eption 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 enoug h like Texas to warrant extending Martinez

- Trevino to defaulted Strickland claims in habeas petitions br ought by Indiana prisoners . I disagree. Indiana does not by procedural rule make it virt ually impossible to litigate a Strickland claim on direct appeal. To the contrary, Indiana explicitly provides a process for doing

so : t he so

- called Davis / Hatton procedure , which “allows a defendant to suspend the direct appeal to pursue an imm ediate 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 rea ffirmed the vitality of th e 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 dire cted 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 appr opriate 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 hea r ing is normally the p referred forum to a djudicate an ineffectiveness claim. We noneth eless agree that potential for administrative i nconvenience does not always outweigh the costs of putting off until tomorrow what can be done today: “If there is no reason for delay in present ing 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 i ncarcerated defendant, the cause of justice is plainly better served by making that determ ination as soon as possible. The same is true even if a retrial is required. Resolving record

based ineffectiveness claims on direct review also has some doctrinal appeal because it is

more co nsistent with the residual purpose of postconviction proceedings. Langley [ v. State ] ,No. 16

- 1014 31

267 N.E.2d [538,] 541 [Ind. 1971] (“[T]he pe rmissible scope of review on direct appeal is well defined and broader than that permitted by collateral attack through post c onviction r elief.”). These considerations can be largely met under a procedure that allows a defendant to suspend the direct appeal to pursue an imm ediate 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 v itality of Davis procedure). This should cover the exceptional case in which the defendant prefers to adjudicate a claim of ineffective a ssistance before direct appeal remedies have been exhausted. Because of the D avis proc edure, the direct appeal is not necessarily an o bstacle 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 ro utine matter in adjudica ting the issue of trial counsel’ s effectiveness, a Davis request may be appropriate “where the claim asserted argu ably requires a certain level of fact fin ding 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

. M ore specifically, the court said that “ [ t ] he specific conte ntions supporting the claim ... may not be divided betwee n the two proceedings

. ” Id

. at 1220. It’s a strong rule of precl usion ; if t he defendant raise s 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”

r equirement would channel many Strickland claims to colla teral review: “ A s 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 adjudicat ing 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

. I n 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 colleague s focus on the state high court ’s strong pre ference for reserving Strickland claims for collateral review , a preference apparently reinforced by the lower courts and generally followed by the criminal defense bar

. Maj ority Op. at pp. 1 3

– 1 5 . T hat’s not enough to bring Indiana within theNo. 16

- 1014 33

ambit of Trevino

. The Supreme Court justified extending Martinez to Texas prisoners primarily because that state’s procedural rules make i t virtual ly impossible to effectively rais e a Strickland claim on d irect appeal

. Trevino , 133 S. Ct. at 1918

– 19. T he se procedural barriers , in turn, have led Texas courts to admonish defendants not to bring these claims on direct review

. I t’s true that the Court spent several par agraphs discussing this “strong judicial advice. ” I d

. at 19 20

. But the advice of the Texas judiciary played only a suppor ting 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 Sup reme Court has not directed defendants to refrain from bring ing claims of trial counsel’s ineffectiveness on direct review ; i t 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 op tion and hig hlight the availability of the Davis / Hatton procedure for defendant s 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 a ppl ication of Trevino as an unwarranted expansion of it. This has real consequences for criminal litigation in Indiana , for fede ral 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 convi ctions is extremely deferential. Under AEDPA t he state court’s factual findi ngs are presumed to be correct , § 2254(e)(1), and34 No. 16

- 1014

a federal court may not grant habeas re lief unless the state court’s adjudication of a federal claim was contrary to, or a n unreasonable application of , clearly established federal law as determined by the Supreme Court, § 2254(d). As the petitioner’ s counsel acknowledged in oral argument, Mar tinez

- Trevino creates a moral hazard in the state postco nviction process, even where by its terms the doctrine clearly applies

. If a prisoner comp lies with the exhaustion requir ement and present s his Strickland claim to the state courts, AEDPA’s highly deferential standard of review applies . If instead he defaults the claim and the Mar tinez

- Trevino exce ption applies, the Strickland claim gets p lenar y review in federal court. Given the se perverse incentives, we should be wary of expanding the doctrine beyond the limits of its rationale.
As a result of t oday’s decision, t he Indiana district courts

w ill be deluge d with defaulted Strickland claims. It is an unfortunate reality in postconviction litigation that o rdinary claim s of trial error can be easily repackaged as claims of ineffective a ssistance of trial counsel. Now that Indiana prisoners may use Martinez

- Trevino , Indiana district judges will routinely have to contend with the two gateway que stions that unlock the door to plenary review of default ed Strickland claim s

. A federal judge will have to decide

— de

novo

— w hether the prisoner’s p ostconviction counsel was ineffective , and if so, whether the underlying Strickland claim is substantial . An affirm ative answer means full federal review of the default ed 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 forumNo. 16

- 1014 35

for asserting constitutional challenges to state convictions.” Richter , 562 U.S. at 103 . That wil l no longer be true in Indian a for at least s ome 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 inesca pably applied. But they do not inescapably apply. I respectfu lly dissent.