                                                                     

                               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. 
                     ____________________ 
     
                           July 19, 2017 
PER CURIAM. 
    On 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.  
     
2                                                   No. 16-1014

   Accordingly, the petition for rehearing and rehearing en
banc filed by respondent-appellee Richard Brown is
DENIED.




    SYKES,   Circuit Judge, with whom FLAUM and
EASTERBROOK, Circuit Judges, join, dissenting from the denial
of rehearing en banc.
   Indiana 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.
    A 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 prison-
er’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.
    A 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
No. 16-1014                                                    3

system effectively deprives prisoners of a meaningful oppor-
tunity 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).
    Indiana does not expressly require prisoners to bring
Strickland claims in collateral-review proceedings, and the
state’s procedural rules do not deny a meaningful opportuni-
ty 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 proce-
dure for developing the factual record necessary to effective-
ly 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).
4                                                  No. 16-1014

     The 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 prison-
er 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 re-
quirements. Id. at 521–22.
    The 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.
No. 16-1014                                                  5

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.
    Finally, the Court expressed deep concern about the sys-
temic costs of expanding Martinez-Trevino. Id. at 2068–70. The
Court worried that extending the exception to a new catego-
ry 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)).
   The same principles are implicated here. The panel’s ex-
pansion of Martinez-Trevino cannot be justified under the
terms of those decisions and is hard to reconcile with the
6                                            No. 16-1014

Court’s reasoning in Davila. For these reasons and those
explained more thoroughly in my panel dissent, we should
rehear this case en banc.
