Seventh Circuit: State Court Decision Not Entitled to AEDPA Deference Due to Incorrect Legal Standard, Pro Se Habeas Petition Granted Based on Trial Counsel’s Failure to Present Expert Witness on Determinative Issue of Guilt Resulting in IAC
by Jacob Berrett
The U.S. Court of Appeals for the Seventh Circuit affirmed the U.S. District Court for the Northern District of Indiana’s order granting Dewayne A. Dunn’s petition for habeas corpus based upon ineffective assistance of counsel and prejudice where trial counsel failed to consult a forensic pathologist in establishing the victim’s manner of death. Further, the Court held the state court’s decision was not entitled to the usual deference mandated by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) because it applied an incorrect legal standard.
In September 2008, Dunn and his neighbor Angel Torres, who had been drinking heavily, engaged in a physical confrontation on the balcony between their apartments.
A witness heard Dunn yell, “[D]on’t hit me with that bat.” Another witness saw Torres hit Dunn with the bat in the shoulder, and the pair continued to struggle for control of the bat. The two were fighting near the edge of the stairs.
Torres, whose back was to the stairs fell backwards, landed on the first balcony and flipped over it, and eventually fell to the pavement below.
Police arrived at the apartment and found Torres in a pool of blood at the bottom of the stairs. Beneath his body was a baseball bat.
Dr. Chrenka performed the autopsy. He determined Torres’ cause of death to be “massive blunt trauma to the head.” Blood toxicology tests revealed Torres’ blood alcohol level of 0.294. Dr. Chrenka could have ruled the death was the result of homicide, suicide, or accident, but he concluded that the determination of death was “uncertain.”
Two years after the incident, Dunn was charged with murder. The State, contrary to witness testimony, alleged Torres was beaten to death “but not necessarily with the bat.”
At trial, the State conceded the bat was likely not used to kill Torres. Rather, the State presented the testimony of Dr. Scott Wagner, who claimed Torres’ injuries “were not consistent with someone merely falling down the stairs.”
Dunn’s counsel did not dispute Wagner’s testimony or attempt to obtain a forensic pathologist to present evidence that could have challenged the State’s theory of Torres’ death. Instead, Dunn’s trial counsel simply questioned the State’s expert witness to confirm he was called as a second opinion to Torres’ cause of death.
Trial testimony revealed that there was substantial blood-splatter evidence in the case. The State’s blood spatter expert testified that the blood spatter evidence at the scene wasn’t consistent with Torres simply falling down the stairs. However, evidence was presented at trial that several people had been seen walking around the crime scene, including three police officers, emergency responders, and both Dunn and Willie Sims, which could have caused contamination of the blood splatter evidence. Additionally, it began to rain while the crime scene was being processed, which could have cast further doubt on the value of the blood spatter evidence.
Nonetheless, Dunn was convicted of murder. During his state post-conviction appeal, he argued he was denied effective assistance of counsel because his trial counsel failed to retain a forensic pathologist to testify as to Torres’ cause of death.
Dunn’s postconviction appellate attorney presented the testimony of a forensic pathologist who performed over 4,500 autopsies and frequently testified as an expert witness, mostly for the prosecution, and found Chrenka’s autopsy to be a “substandard” exam, which missed a great deal of evidence that Torres’ fall was consistent with a fall rather than a beating.
Nevertheless, the state Court of Appeals and the state Supreme Court upheld Dunn’s conviction and sentence.
Dunn timely filed a pro se federal habeas petition in the U.S. District Court under 28 U.S.C. § 2254. The District Court granted Dunn’s petition, ruling that the state appeals decision was not entitled to the usual deference required by the AEDPA that restricts a federal court from considering new evidence and limits the review of factual determinations to evidence in state court proceedings because the state appeals court improperly applied an incorrect legal standard. Shinn v. Martinez-Ramirez, 142 S. Ct. 1718 (2022). Following its de novo review, the District Court ruled that Dunn had established ineffective assistance of counsel and prejudice under Strickland v. Washington, 466 U.S. 668 (1984). The State appealed.
The Court began its analysis by addressing the issue of whether the Indiana Court of Appeals’ decision is entitled to AEDPA deference. See § 2254(d). The Court stated that with a claim adjudicated by a state court on the merits, “a federal court cannot grant relief unless the state court (1) contradicted or unreasonably applied [the Supreme] Court’s precedents, or (2) handed down a decision ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Quoting Shoop v. Twyford, 142 S. Ct. 2037 (2022).
The U.S. Supreme Court has stated that a “state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.” Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Supreme Court explained that if a state court were to reject a prisoner’s ineffective assistance of counsel (“IAC”) claim because he hadn’t established by a preponderance of the evidence that the outcome would have been different, the state court’s decision contradicts the standard articulated in Strickland, which sets the standard for IAC at a “reasonable probability that … the result of the proceeding would have been different.”
Turning to the present case, the Court explained that the state appellate court engaged in the same error of law identified in Williams, i.e., it identified the incorrect standard for IAC by requiring Dunn to show the result of proceeding would have been (rather than simply requiring a showing of reasonable probability that it would have been) different had trial counsel retained an expert witness. Thus, the Court ruled that the Indiana appellate court “applied a rule that contradicts the governing Supreme Court law, and its decision is not entitled to AEDPA deference.” As a result, the Court considered the Strickland challenge de novo.
The Court then addressed the merits of the case. It stated that a claim of IAC under Strickland must show: (1) trial counsel provided constitutionally-deficient performance, “meaning counsel made errors so serious he ‘was not functioning as the counsel guaranteed the defendant by the Sixth Amendment” and (2) the deficient performance prejudiced the defense, “meaning there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Winfield v. Dorethy, 956 F.3d 442 (7th Cir. 2020) (quoting Strickland).
The Court explained that courts are highly deferential in reviewing counsel’s challenged conduct. Strickland. The decision not to investigate and present expert testimony can be a strategic trial tactic, the Court observed, and if that’s the case, then the decision is entitled to deference. See Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012). However, if the failure to present expert testimony is the result of “inattention” rather a strategic trial decision, the failure to present such testimony is not entitled to the presumption of reasonableness. Id.
The Court determined that trial counsel’s failure to investigate and present expert witness testimony was the result of “inattention rather than a reasoned strategic judgment.” Trial counsel admitted that he focused on the issue of whether the bat was the murder weapon and disregarded the issue of actual cause of death. But the critical and determinative issue in this case was whether the victim’s death was the result of the fall or by bludgeoning, i.e., cause of death. Thus, the Court ruled that because “defense counsel … failed to investigate the defense as to the dispositive issue at trial regarding the cause of death, Dunn has demonstrated deficient performance under Strickland.” The first prong of Strickland is satisfied.
In order to satisfy the prejudice or second prong of Strickland, the prisoner must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland. A reasonable probability means that, without the error, “at least one factfinder would have had a reasonable doubt respecting guilt.” Buck v. Davis, 580 U.S. 100 (2017).
The Court stated that the only evidence to support the State’s argument that Dunn bludgeoned the victim after the fall causing his death was expert testimony. In fact, multiple eyewitnesses testified that they didn’t see Dunn strike the victim after the fall, but the State argued to the jury that their testimony should be disregarded in favor of the scientific evidence, i.e., the expert testimony.
The Court stated that if defense counsel had presented expert testimony contradicting the State’s experts regarding the cause of death, “there is certainly a reasonable probability that the jury would have some doubt as to whether Torres was in fact beaten to death after the fall by Dunn.” The Court explained that expert testimony for the defense was critical in this case because it directly countered the State’s expert testimony, and there’s a reasonable probability it would have created reasonable doubt in the jury. Thus, the Court ruled that Dunn established prejudice under Strickland’s second prong.
Accordingly, the Court affirmed the District Court’s decision granting the petition for a writ of habeas corpus. See: Dunn v. Neal, 44 F.4th 696 (7th Cir. 2022)
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