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Seventh Circuit Orders District Court to Hold Evidentiary Hearing Where Record Insufficient to Permit Review of State Prisoner’s Section 2254 Habeas Petition Alleging Ineffective Assistance of Counsel

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit made the rare decision to order an evidentiary hearing be held in the U.S. District Court for the Southern District of Indiana upon finding that the record was insufficient to permit review of Ryan T. McMullen’s 28 U.S.C. § 2254 petition for writ of habeas corpus, claiming he was denied his right to effective assistance of counsel during sentencing.

McMullen was convicted of drug-related offenses in the Grant County Circuit Court (“GCCC”) in Indiana. Attorney Joe Keith Lewis represented McMullen at trial and at sentencing. The Probation Office prepared a presentence investigation report (“PSR”). The PSR described McMullen’s lengthy criminal history—both as an adult and as a juvenile—that included prior adult felony convictions for criminal recklessness with a deadly weapon and marijuana possession as well as pending charges for attempted murder, felony criminal recklessness, and felony battery by means of a deadly weapon.

The PSR also included details concerning McMullen’s family and background. Both his father and mother had criminal convictions; his father was not in his life; he was removed from his mother’s care on at least one occasion “due to abuse”; and he was raised by his mother until age seven and then placed with his grandmother until returning to his mother at age 12. But placement with his mother “didn’t work out.”

The PSR also revealed that McMullen was placed in mental health counseling as a juvenile with the Youth Opportunity Center (“YOC”). He was also placed in mental health counseling when he was removed from his mother’s care due to abuse.

Lewis, in preparing for sentencing, later stated he “really didn’t do anything independently to develop any mitigation.” Lewis knew McMullen “came from a seriously troubled background” and was “well aware of [McMullen’s] difficult upbringing.” Nevertheless, Lewis decided “that mitigation would [not] stack up” in light of McMullen’s “pending attempted murder charge and three other drug charges.” Lewis “did not consider having a mental health professional evaluate McMullen” and relied on the PSR at sentencing. McMullen was sentenced to the maximum term of 50 years in prison. In its sentencing order, the GCCC wrote, inter alia, that it found two aggravating circumstances: (1) McMullen’s “lengthy history of criminal or delinquent behavior, despite being only 24 years of age …” and (2) the fact that the offenses “were committed while he was a fugitive from [the GCCC’s] warrant.”

After his judgment was affirmed on appeal, McMulen sought postconviction relief in the GCCC. He argued that “Lewis had rendered ineffective assistance at sentencing by failing to ‘conduct a reasonable investigation’” of his “character, background, and mental status, arrange for him to be evaluated by a mental health professional, and present evidence of mitigating circumstances at sentencing.”

The GCCC held an evidentiary hearing on the postconviction motion. McMullen presented evidence that included his mental health evaluation while he had been at the YOC and a psychological evaluation by Dr. Robin Kohli that revealed McMullen’s extensive mental health problems. Both of these evaluations were available before his sentencing. He argued that Lewis was ineffective for failing to present the evidence in mitigation and that this failure was due to Lewis’s failure to adequately investigate.

The GCCC denied the postconviction motion, concluding that “what was outcome-determinative at sentencing was not the quality of the argument that his attorney made on the day of sentencing, but rather McMullen’s increasingly troubling behavior and history which occurred in the thirteen years prior to the day of sentencing.”

The Indiana Court of Appeals (“ICOA”) affirmed. The ICOA wrote “because of the presentence investigation report, the sentencing court was already well aware of McMullen’s background and mental health concerns” and that the additional evidence offered by McMullen at the postconviction hearing “would have done nothing to account for or explain the illegal possession of marijuana and cocaine for which McMullen was convicted.”

The Indiana Supreme Court denied McMullen’s petition for transfer, and he subsequently filed his § 2254 petition in federal District Court. The District Court denied relief, finding that Lewis’s performance was deficient but that McMullen had failed to demonstrate he was prejudiced by Lewis’ deficient performance. McMullen timely appealed to the Seventh Circuit.

The Court observed that to obtain habeas relief, McMullen must demonstrate that “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). To satisfy § 2254(a) with his claim of ineffective assistance of counsel, McMullen must establish that: (1) his attorney’s performance was deficient, i.e., his performance fell outside the wide range of conduct of prevailing professional norms and (2) the deficient performance prejudiced McMullen, i.e., there is a reasonable probability that the outcome of the proceeding would have been different had counsel not performed deficiently. Strickland v. Washington, 466 U.S. 668 (1984).

The Court further observed that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the circumstances under which McMullen could obtain relief: “McMullen requests relief under 28 U.S.C. § 2254, so he must show that the state courts’ adjudication of his claim ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” § 2245(d)(1). That standard limits the Court’s review to “the last state-court decision that … provide[s] a relevant rationale.” Wilson v. Sellers, 138 S. Ct. 1188 (2018). In the present case, this was the decision of the ICOA.

Regarding the Strickland prejudice prong, the Court stated that the ICOA’s statement that the additional mitigating evidence offered by McMullen “would have done nothing to account for or explain the illegal possession of marijuana and cocaine for which McMullen was convicted” was “not legally correct, as mitigating evidence need not necessarily excuse or diminish the defendant’s illegal conduct.” Laux v. Zatecky, 890 F.3d 666 (7th Cir. 2018). The Court concluded that the ICOA’s finding that McMullen was not prejudiced was contrary to federal law. Consequently, McMullen had satisfied § 2254(d). Moseley v. Atchison, 689 F.3d 838 (7th Cir. 2012) (state court decision contrary to federal law not entitled to AEDPA deference and is reviewed de novo with reviewing court applying correct legal standard). But that did not mean he automatically satisfied § 2254(a), according to the Court.

Whether Lewis’ performance was deficient turns on whether his failure to conduct further investigation into McMullen’s background was a strategic decision reached after Lewis had reasonably investigated to determine that further investigation was unnecessary. Wiggins v. Smith, 539 U.S. 510 (2003). If Lewis conducted a reasonable investigation to determine that further investigation was unnecessary, his performance was not deficient. Id. However, the record in the case was insufficient to permit review of the question, the Court stated.

When the record is insufficient to make a decision on whether the writ may issue under § 2254(a), the AEDPA permits the reviewing court—in limited circumstances—to remand to the district court for an evidentiary hearing. Ward v. Jenkins, 613 F.3d 692 (7th Cir. 2010). “If the AEDPA poses no bar to an evidentiary hearing, then the petitioner is entitled to a hearing in federal court if (1) he has alleged facts which, if proved, would entitle him to habeas relief, and (2) the state courts, for reasons beyond [petitioner’s] control, never considered his claim in a full and fair hearing.” Id.

In the present case, it was the ICOA’s incorrect legal conclusion that resulted in no evidence being presented as to the extent of Lewis’ investigation underlying his failure to conduct further investigation into McMullen’s background. Thus, the Court ruled that McMullen satisfied the Ward test.

Accordingly, the Court vacated the District Court’s denial of habeas corpus relief and remanded for an evidentiary hearing in accordance with its opinion. See: McMullen v. Dalton, 83 F.4th 634 (7th Cir. 2023).   

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McMullen v. Dalton



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