from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:13-cv-1981-JMS-DKL - Jane Magnus-Stinson, Chief Judge.
consideration of respondent-appellee Richard Brown's
petition for rehearing and rehearing en banc, filed on March
9, 2017, a majority of judges in active service voted to deny
the petition for rehearing en banc. Judges Flaum,
Easterbrook, and Sykes voted to grant the petition for
rehearing en banc. Judges Kanne and Hamilton voted to deny
panel rehearing; Judge Sykes voted to grant panel rehearing.
the petition for rehearing and rehearing en banc filed by
respondent-appellee Richard Brown is DENIED.
Circuit Judge, with whom Flaum and Easterbrook, Circuit
Judges, join, dissenting from the denial of rehearing en
asks us to rehear this habeas case en banc. For the reasons
elaborated in my panel dissent and briefly summarized here, I
would grant that request.
federal court may not review a state prisoner's habeas
claim unless the prisoner has exhausted state remedies by
presenting the claim to the state courts for one full round
of review. 28 U.S.C. § 2254(b)(1)(A); Coleman v.
Thompson, 501 U.S. 722, 731-32 (1991). Failure to
exhaust is a procedural default and precludes federal review
unless the prisoner establishes cause to excuse the default
and consequent prejudice. Coleman, 501 U.S. at
749-50. Attorney error is not "cause" unless the
error amounted to a denial of the prisoner's
constitutional right to the effective assistance of counsel.
Id. Because the Constitution does not guarantee
counsel in postconviction proceedings, attorney error at that
stage of the state criminal process is not cause to
excuse procedural default. Id. at 755.
narrow exception exists for defaulted claims of trial
counsel's ineffectiveness under Strickland v.
Washington, 466 U.S. 668 (1984)-but only if
state law expressly requires prisoners to bring
these claims on collateral review, Martinez v. Ryan,
566 U.S. 1, 16-17 (2012), or a state's procedural system
effectively deprives prisoners of a meaningful opportunity to
litigate the claim on direct appeal, Trevino v.
Thaler, 133 S.Ct. 1911, 1921 (2013). The panel majority
held that Martinez-Trevino applies to defaulted
Strickland claims by Indiana prisoners. Brown v.
Brown, 847 F.3d 502, 510-13 (7th Cir. 2017). As I
explained in my panel dissent, that decision is an
unwarranted expansion of the narrow Martinez-Trevino
exception. Id. at 519-21 (Sykes, J., dissenting).
does not expressly require prisoners to bring
Strickland claims in collateral-review proceedings,
and the state's procedural rules do not deny a meaningful
opportunity to litigate the claim on direct review. To the
contrary, the Indiana Supreme Court explicitly
permits prisoners to bring these claims on direct
appeal and provides a special procedure for developing the
factual record necessary to effectively litigate the claim at
that stage of the criminal process. Id. (discussing
Woods v. State, 701 N.E.2d 1208 (Ind. 1998)). True,
the state high court has said that postconviction review is
normally the "preferred forum" for these claims,
Woods, 701 N.E.2d at 1219, but a preference is not a
requirement, see Lee v. Corsini, 777 F.3d 46, 60
(1st Cir. 2015) (Martinez and Trevino do
not apply in Massachusetts even though the preferred method
for raising a claim of ineffective assistance of counsel in
that state is through a motion for a new trial.) (internal
quotation marks omitted). Nothing in Indiana law either
forecloses Strickland claims on direct review or
makes it "all but impossible" to effectively
present the claim in connection with a direct appeal.
Trevino, 133 S.Ct. at 1920. "This takes Indiana
outside the rule and rationale of Trevino."
Brown, 847 F.3d at 521 (Sykes, J., dissenting).
panel's contrary conclusion should be reconsidered by the
full court-not only because it is mistaken but also because
it has broad systemic importance. Expanding
Martinez-Trevino disturbs the settled federalism and
comity principles that animate federal habeas jurisprudence.
Id. at 521-22. More concretely it carries
significant institutional costs. District judges in Indiana
will now be flooded with defaulted Strickland
claims, each requiring adjudication of the gateway
Martinez-Trevino questions that open a path to
plenary federal review of defaulted Strickland
claims: Was postconviction counsel ineffective, and if so (or
if the prisoner lacked postconviction counsel) is the
underlying Strickland claim "substantial,
" i.e., does it have "some merit"?
Id. at 518-19. Affirmative answers to these
questions yields "full federal review of the defaulted
claim unburdened by AEDPA's deferential standard of
review." Id. at 522. As I explained in my panel
dissent, this will shift much Strickland litigation
to the Indiana federal district courts, altering the
federal-state balance and seriously intruding on
Indiana's sovereign authority to review convictions
obtained in its own courts for compliance with federal
constitutional requirements. Id. at 521-22.
Supreme Court's newly released decision in Davila v.
Davis supports en banc rehearing. There the Court
refused to extend the Martinez-Trevino exception to
a new context: defaulted claims of ineffective assistance of
appellate counsel. Davila v. Davis, 137
S.Ct. 2058 (2017). Davila doesn't directly
resolve whether Martinez-Trevino should be available
to Indiana prisoners, but the Court's opinion is
nonetheless instructive. First, the Court repeatedly
emphasized that Martinez-Trevino is a "narrow,
" "limited, " and "highly
circumscribed" equitable exception to
Coleman's general rule. Id. at 2062,
2065, 2066-67, 2068, 2069, 2070. This suggests a strong
reluctance to expand the exception beyond the limits of its
rationale. Second, the Court restated the core reasoning
underlying the exception: When a state makes a deliberate
choice "to move trial-ineffectiveness claims outside the
direct-appeal process, where counsel is constitutionally
guaranteed, " that procedural choice, though otherwise
permissible, "significantly diminishe[s]" a
prisoner's ability to file such claims and is "not
without consequences for the State's ability to assert a
procedural default." Id. at 2068 (quoting
Martinez, 566 U.S. at 13). Indiana has not
moved Strickland claims outside the direct-appeal
process, so the reason for the exception does not exist here.
the Court expressed deep concern about the systemic costs of
expanding Martinez-Trevino. Id. at 2068-70. The
Court worried that extending the exception to a new category
of claims would "undermine the doctrine of procedural
default and the values it serves." Id. at 2070.
"That doctrine, like the federal habeas statute
generally, is designed to ameliorate the injuries to state
sovereignty that federal habeas review necessarily inflicts
by giving state courts the first opportunity to address
challenges to convictions in state court, thereby
'promoting comity, finality, and federalism.'"
Id. (quoting Cullen v. Pinholster, 563 U.S.
170, 185 (2011)). Expanding Martinez-Trevino, the
Court said, "would unduly aggravate the 'special
costs on our federal system' that federal habeas review
already imposes." Id. (quoting Engle v.
Isaac, 456 U.S. 107, 128 (1982)).
same principles are implicated here. The panel's
expansion of Martinez-Trevino cannot be justified
under the terms of those decisions and is hard to reconcile
with the Court's reasoning in Davila. For these
reasons and those ...