A split 7e The Circuit Court of Appeals upheld an Elkhart man’s habeas corpus petition, finding that the Indiana Court of Appeals applied a rule contradicting Supreme Court precedent by denying him relief, leaving his decision without deference under anti-terrorism and effective death penalty law.
In September 2008, a fatal accident occurred at an apartment complex in Elkhart which resulted in the death of Angel Torres. Torres fell down a second story staircase and hit his head on the floor after a fight with his neighbor, Dewayne Dunn.
When officers arrived at the scene, Dunn repeated that he “did nothing”. Eyewitnesses to the accident included Dunn’s ex-girlfriend and roommate, Letha Sims, and her teenage son, Willie Sims. Both claimed that the events leading up to Torres’ death began with Dunn, Torres and Sims drinking together on a balcony before Dunn and Torres began to argue.
Sims and Willie testified that they later heard Dunn say “don’t hit me with that bat” to Torres. The men struggled for the bat, then Torres fell backwards down the steps and hit his head on the ground.
Two years later, Dunn was charged and eventually convicted of first degree murder and sentenced to 58 years. The state alleged that Torres’ death resulted from a beating that occurred after the fall, rather than the fall itself, relying on the testimony of two pathologists.
In post-conviction proceedings in state court, Dunn requested a new trial, arguing that his trial attorney was ineffective for failing to consult with any medical examiner. The court denied relief, the COA upheld, and the Indiana Supreme Court denied Dunn’s transfer request.
However, the U.S. District Court for the Northern District of Indiana granted Dunn’s habeas pro se petition and found that the COA had wrongly applied an incorrect legal standard. As such, his decision was not entitled to the usual deference demanded by AEDPA.
The district court ultimately found that Dunn had established trial counsel’s deficient performance and prejudice, which a split panel of 7e Circuit confirmed in Dewayne A. Dunn v. Ron Neal, Warden, Indiana State Prison, 21-1169.
In finding that the decision of the Court of Appeal was not entitled to deference from AEDPA, the 7e Circuit noted two main problems with the state court’s recitation of the standard of the case.
First, he found that the COA based its review on the improper standard used by the post-conviction court while setting out that same improper standard itself in its conclusion, reflecting that burden in its analysis.
“We therefore cannot dismiss the inappropriate standard as a mere shorthand reference to the proper standard,” Judge Ilana Rovner wrote for the majority.
In a footnote, the majority split with dissenting Judge Thomas Kirsch, who argued that the correct question was not whether the Indiana Court of Appeals disavowed the incorrect standard. of the lower court or misrepresented the standard itself, but if the court had applied the correct standard.
“We agree that the question is what standard has actually been applied and repeatedly recognized,” reads the majority’s footnote. “In making this decision, the standard actually articulated – particularly in the analysis portion of the state court’s opinion – is, of course, instructive and therefore properly considered. Our problem with the state court’s decision is that the analysis reflects the improper standard articulated by the state court.
The majority further concluded that shifting the onus to the “jury” to conclude that the injuries were “solely the result of a fall” is inconsistent with the law. Strickland versus Washington, 466 US 668 (1984) standard for establishing harm, which simply requires that at least one juror have a reasonable doubt.
The majority also rejected the dissent’s assertion that the majority unreasonably required specific language from the courts to change “the jury” to “one juror.”
“That, however, misses the point. The problem here is the burden imposed by the court to determine whether the result would be different,” the majority wrote.
Reviewing the merits de novo, the majority agreed with the district court that Dunn had sufficiently demonstrated ineffective assistance of counsel. He noted that Dunn’s attorney even admitted that “the failure to go that route was a product of his narrow focus on the bat as a putative weapon in the case.”
The federal appeals court found that Dunn was able to demonstrate that there was a reasonable likelihood that the jury had a reasonable doubt as to his guilt. Therefore, he ultimately concluded that Dunn had demonstrated prejudice under Strickland.
Kirsch dissented, saying his disagreement stems from the finding that the Indiana Court of Appeals’ proper application of Strickland leave on 7e Circuit without “space” to circumvent the deference required by the AEDPA.
“Strickland has been the law for nearly 40 years, and it’s evident that Indiana appeals judges ruled on Dunn’s motion in October 2017 (who had seven decades of court experience, Judge Crone (since 2004) , Judge Vaidik (since 1992) and Judge Mathias (since 1989)) correctly understood and recited Stricklandis a bias,” Kirsch wrote.
“…While this may have been a tight case for the Indiana Court of Appeals, deciding whether the court ruled on the ‘right’ side is not our call to make as long as its explanations were reasonable” , concluded the dissenting judge. “Congress has placed a significant hurdle by requiring us to find a state court’s decision “contrary to” clearly established Supreme Court precedent before we can grant habeas relief. And we can’t get past that hurdle here.