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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA split 7th Circuit Court of Appeals has affirmed an Elkhart man’s granted habeas corpus petition, finding that the Court of Appeals of Indiana applied a rule contradicting Supreme Court precedent in refusing him relief, leaving its decision not entitled to deference under the Antiterrorism and Effective Death Penalty Act.
In September 2008, a fatal accident occurred in an Elkhart apartment complex that left resident Angel Torres dead. Torres fell down a flight of stairs from the second floor and hit his head on the ground below after engaging in a fight with his neighbor, Dewayne Dunn.
When officers arrived at the scene, Dunn was repeating that he “didn’t do anything.” Eyewitnesses of 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 started out with Dunn, Torres and Sims drinking together on a balcony before Dunn and Torres began arguing.
Sims and Willie testified that they later heard Dunn say, “don’t hit me with that bat” to Torres. The men struggled over the bat and then Torres fell backwards down the steps and hit his head on the ground.
Two years later, Dunn was charged and ultimately convicted of first-degree murder and sentenced to 58 years. The state alleged Torres’ death resulted from a beating that occurred after the fall, rather than the fall itself, relying on the testimony of two pathologists.
In a state court post-conviction proceeding, Dunn sought a new trial, arguing that his trial counsel was ineffective for failing to consult with any forensic pathologist. The court denied relief, the COA affirmed and the Indiana Supreme Court denied Dunn’s petition to transfer.
However, the U.S. District Court for the Northern District of Indiana granted Dunn’s pro se habeas petition and held that the COA improperly applied an incorrect legal standard. As such, its decision was not entitled to the usual deference mandated by AEDPA.
The district court ultimately concluded that Dunn had established the deficient performance of trial counsel and prejudice, which a split panel of the 7th Circuit affirmed in Dewayne A. Dunn v. Ron Neal, Warden, Indiana State Prison, 21-1169.
In finding that the appellate court’s decision was not entitled to AEDPA deference, the 7th Circuit noted two main problems with the state court’s recitation of the case’s standard.
First, it concluded that the COA anchored its review in the improper standard used by the post-conviction court while also articulating that same improper standard itself in its conclusion, reflecting that burden in its analysis.
“We cannot therefore dismiss the improper standard as a mere shorthand reference to the proper standard,” Judge Ilana Rovner wrote for the majority.
In a footnote, the majority split ways with dissenting Judge Thomas Kirsch, who argued that the proper issue was not whether the Indiana appellate court disavowed the incorrect lower court standard or mischaracterized the standard itself, but whether the court applied the right standard.
“We agree that the question is what standard was actually applied and repeatedly recognized as much,” the majority footnote reads. “In making that determination, the standard actually articulated – particularly in the analysis portion of the state court’s opinion – is, of course, instructive and therefore properly examined. Our problem with the state court’s decision is that the analysis reflected the improper standard articulated by the state court.”
The majority further found that the shifting of the burden to “the jury” to conclude the injuries were “solely the result of a fall” is incompatible with the proper Strickland v. Washington, 466 U.S. 668 (1984) standard of establishing prejudice, which just calls for at least one juror to have reasonable doubt.
The majority also rejected the dissent’s assertion that the majority was unreasonably demanding specific language of courts to change “the jury” to “one juror.”
“That, however, misses the point. The problem here is the burden imposed by the court in the determination as to whether the outcome would be different,” the majority wrote.
Reviewing the merits de novo, the majority agreed with the district court that Dunn sufficiently demonstrated ineffective assistance of counsel. It noted that Dunn’s attorney even admitted to “the failure to pursue that avenue was a product of his narrow focus on the bat as the putative weapon in the case.”
The federal appellate court found that Dunn was able to show there is a reasonable probability that the jury would have reasonable doubt as to his guilt. Therefore, it ultimately found Dunn demonstrated prejudice under Strickland.
Kirsch dissented, saying his disagreement stems from finding that the Indiana appellate court’s proper application of Strickland leaves the 7th Circuit with “no room” to bypass AEDPA’s required deference.
“Strickland has been the law for nearly 40 years, and it’s evident that the Indiana appellate judges deciding Dunn’s petition in October 2017 (who had a combined seven decades of judicial experience, Judge Crone (since 2004), Judge Vaidik (since 1992), and Judge Mathias (since 1989)) correctly understood and recited Strickland’s prejudice prong,” Kirsch wrote.
“… Although this may have been a close case for the Indiana Court of Appeals, deciding whether the court came out on the ‘right’ side is not our call to make so long as its explanations were reasonable,” the dissenting judge concluded. “Congress has set a high hurdle in requiring us to find a state court’s decision “contrary to” a clearly established Supreme Court precedent before we may grant habeas relief. And we can’t clear that hurdle here.”
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