Donald Karr, Jr. v. Mark Sevier ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2463
DONALD G. KARR, JR.,
Petitioner-Appellant,
v.
MARK R. SEVIER, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-01973-JPH-TAB — James P. Hanlon, Judge.
____________________
ARGUED FEBRUARY 9, 2022 — DECIDED MARCH 30, 2022
____________________
Before FLAUM, BRENNAN, and ST. EVE, Circuit Judges.
BRENNAN, Circuit Judge. An Indiana jury convicted Donald
Karr of rape and domestic battery for his assaults on A.P., his
former girlfriend. Karr then fired his attorney, hired a new
one, and pursued two claims of ineffective assistance of trial
counsel in state court. Those claims were rejected by the state
trial court and on direct appeal. Karr then sought federal
habeas relief under 28 U.S.C. § 2254, and the district court
denied his petition.
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His trial counsel was ineffective, Karr submits, because he
failed to investigate A.P.’s history of medication use, and he
introduced no evidence about whether Karr used his
cellphone during his second assault of A.P. If the trial attorney
had procured and introduced this evidence, Karr contends,
A.P.’s trial testimony could have been impeached. But the
jury had an ample basis on which to find A.P. credible, and
there is no reasonable probability that any evidence Karr
references would have affected the trial’s outcome. Karr thus
fails to show he was prejudiced by his trial counsel’s
purported errors.
Also before us are six additional claims for ineffective
assistance of trial counsel, which Karr raised for the first time
in federal habeas proceedings. Ordinarily, federal courts are
barred from considering defaulted claims when reviewing
habeas petitions. Because Karr did not raise those claims in
Indiana state court, he procedurally defaulted them. Karr
concedes the procedural defaults but asserts they are
excusable under a narrow equitable exception delineated by
the Supreme Court. That exception does not apply to
insubstantial defaulted claims such as the ones Karr presents,
though, and it does not apply in this procedural posture. We
therefore affirm the denial of habeas relief.
I
A. Factual Background
We recount the facts primarily as they were found by the
Indiana Court of Appeals. In § 2254 cases, a state court’s
determination of a factual issue is “presumed to be correct”
unless the petitioner rebuts it by “clear and convincing
No. 21-2463 3
evidence.” 28 U.S.C. § 2254(e)(1); Powell v. Fuchs, 4 F.4th 541,
548 (7th Cir. 2021).
On the night of May 5, 2015, A.P., the victim, was living
with Donald Karr and her three young children in
Noblesville, Indiana. A.P. was putting her children to bed
when Karr returned home and angrily accused her of
sneaking a man into the house. Karr then hit A.P. in the face
several times. Next, he grabbed her by her hair and ripped
some of it out of her head. Karr then told A.P. that she had to
perform oral sex on him every day and every night.
After confronting one of A.P.’s children and sending the
child back to bed, Karr closed the blinds, approached A.P.,
and unbuckled his pants. A.P. tried to kick Karr away from
her. At this point, A.P. began experiencing abdominal pains
and feeling nauseous, which she believed was related to a
previously diagnosed ovarian cyst. She convinced Karr to
transport her to the hospital.
Upon arriving, A.P. told a nurse to contact a police officer
because Karr had been hitting her. Officer Craig Denison was
present in the ultrasound room, and A.P. told him that Karr
had been hitting her and pulling her hair. The officer
photographed A.P.’s hair, and her face which showed
swelling. A clump of hair from A.P.’s scalp came loose, and
she gave it to Denison. After photographing the clump of hair,
Denison disposed of it in a trash can at the hospital.
Denison informed A.P. that he believed there was
insufficient probable cause to arrest Karr. Because she could
not prevent Karr from occupying the home they shared, A.P.
left with him. A.P. and Karr drove home together without
conflict.
4 No. 21-2463
Once home, Karr again became upset with A.P., this time
about an unrelated minor topic. He told her they were “going
to pick up where [they] left off.” He then hit her in the face.
Karr took off his clothes and ordered A.P. to perform oral sex
on him. She refused, but he forced her to comply. Karr
eventually stopped and began to lecture A.P. about his
“rules” for the house.
A.P. testified that before going to bed, Karr began to search
for a pornographic video to watch. Karr again told A.P. to
perform oral sex on him. At first she refused, but she
eventually relented “[o]ut of fear of what would happen if
[she] said no.” During that time A.P. noticed a light shining
from Karr’s phone and she “assumed he was taking a video.”
A.P. returned to the hospital the next day, where she met
with another police officer, Matthew Boudreau. A.P. reported
Karr’s assaults to Boudreau. A forensic nurse, Nakia Bowens,
examined A.P. and observed that A.P. had redness and
tenderness in her scalp area, tenderness on her jawbone, and
redness on her chin. According to Bowens, A.P. also had
petechiae—small, red dots that indicate blood has burst—on
the roof of her mouth. Petechiae may be caused by blunt force
trauma, Bowens opined, such as by a penis striking the roof
of a mouth. Bowens took photographs of A.P.’s injuries, and
some of those photographs were later introduced at trial.
B. Procedural History
Criminal charges and trial. The State of Indiana charged
Karr with domestic battery (Count 1), two counts of rape
(Counts 2 and 3), strangulation (Count 4), and intimidation
(Count 5). Attorney Joshua Taylor represented Karr at trial.
The State presented the evidence of the assaults, discussed
No. 21-2463 5
above. Taylor cross-examined A.P. on Karr’s behalf. By
challenging their authentication, Taylor successfully excluded
text messages that would have damaged Karr’s defense.
At the close of evidence, Taylor moved for a directed
verdict on all counts, which he later amended to include only
Counts 3, 4, and 5—the second rape charge and the
strangulation and intimidation charges. The trial court
granted Taylor’s motion in part and entered a directed verdict
of not guilty on Count 5, the intimidation charge. The
remaining counts were submitted to the jury. Karr was found
guilty on the domestic battery and rape counts, but not guilty
on the strangulation count.
Posttrial proceedings. Prior to sentencing, Karr discharged
Taylor and hired Jane Ruemmele as his attorney. The defense
moved for a new trial, alleging Taylor provided Karr
ineffective assistance. The trial court held two evidentiary
hearings on the motion, at which Ruemmele raised several
issues and Taylor testified about various decisions he had
made before and during trial.
One issue concerned A.P.’s medication history. When
questioned A.P. admitted she had been prescribed
hydrocodone at the time of the assaults, but she did not recall
whether she was taking it at that time. She testified that any
drug consumption during that period did not affect her
ability to recall the assaults. Another issue that arose
concerned a forensic audit of Karr’s cellphone. Ruemmele
called Officer Matt McGovern, of the Noblesville Police
Department, who had conducted a forensic analysis of Karr’s
phone. McGovern testified he found no evidence of a
pornographic video that was accessed or recorded on Karr’s
cellphone on either May 5, 2015, or early the following
6 No. 21-2463
morning when the second assault occurred. Per McGovern,
though, he could not exclude the possibility that content
which had been deleted from the phone did not appear in his
report.
Arguing for a new trial, Ruemmele asserted that if A.P.’s
“prescription drug medication … had been explored she
could have been adequately impeached on her ability to
observe and to report the events of the day.” Ruemmele also
contended the lack of evidence of a pornographic video on
Karr’s cellphone called into question A.P.’s credibility and the
reliability of her testimony. The court was not persuaded and
denied the motion for a new trial. According to the trial judge,
Taylor had been “very successful” in excluding the
inculpatory text messages that Karr sent to A.P. Karr was
sentenced to 17.5 years in prison, with five years of the
sentence suspended.
Karr’s direct appeal and postconviction proceedings. On Karr’s
behalf, Ruemmele pursued a direct appeal of the trial court’s
denial of her motion for a new trial. But then she received
permission to stay the appeal and pursue postconviction
relief in the trial court under Indiana’s Davis-Hatton
procedure (explained later in greater detail). In the petition
for postconviction relief, Ruemmele alleged that Taylor had
been ineffective as Karr’s trial counsel for two main reasons.
First, Taylor failed to impeach A.P. with evidence of her drug
use. Second, Taylor failed to note the absence of pornographic
or other evidence from Karr’s cellphone. The State moved for
summary denial of the petition, which the trial court granted.
The trial court reasoned that claim preclusion barred the
claims presented in the petition because they had been raised
No. 21-2463 7
and denied on the merits in connection with the earlier
motion for a new trial.
In a consolidated appeal, Ruemmele challenged Karr’s
convictions, his sentence, and the denial of postconviction
relief. The Indiana Court of Appeals affirmed the trial court in
every respect. According to the appeals court, Karr was not
prejudiced by Taylor’s decision not to investigate and
potentially present evidence of A.P.’s medication use. The
appeals court also concluded that Karr did not suffer
prejudice from Taylor’s decision not to present the cellphone
evidence to the jury. The Indiana Supreme Court denied
Karr’s petition to transfer. His petition to the Supreme Court
of the United States for a writ of certiorari likewise was
denied.
Federal habeas proceedings. Karr filed a habeas petition
under 28 U.S.C. § 2254(d) in the United States District Court
for the Southern District of Indiana, which he later amended
with the assistance of retained counsel. In the petition Karr
again referenced the ineffectiveness claims related to A.P.’s
medications and the forensic audit of his phone. Karr also
raised several new bases for the alleged ineffectiveness of his
trial counsel. The State opposed relief and argued Karr’s
claims were meritless or procedurally defaulted.
The district court denied habeas relief. Because each of the
six defaulted claims for ineffective assistance of trial counsel
was vague or otherwise facially deficient, the district court
ruled that those claims lacked “some merit.” Thus, the
procedural defaults were not excused under Martinez v. Ryan,
566 U.S. 1 (2012), or Trevino v. Thaler, 569 U.S. 413 (2013),
which in limited circumstances provide that a procedural
default will not bar a federal habeas court from hearing a
8 No. 21-2463
substantial claim of ineffective assistance of trial counsel if a
prisoner is denied a meaningful opportunity to raise the
claim. On the two non-defaulted claims for ineffective
assistance of trial counsel, the district court concluded that the
Indiana Court of Appeals’ no-prejudice determination was a
reasonable application of federal law.
The district court granted a certificate of appealability on
the question of whether the Indiana Court of Appeals
unreasonably applied established federal law in concluding
that Karr was not prejudiced by Taylor’s failure to present
evidence of A.P.’s medication history. Karr appealed, and he
filed what was labeled a motion for issuance of a certificate of
appealability. Our court construed the motion as a request to
expand the certificate of appealability to include the
previously adjudicated cellphone claim, and the six defaulted
claims for ineffective assistance of trial counsel. We granted
Karr’s request and expanded the certificate of appealability.
II
First, we consider the two claims for ineffective assistance
of trial counsel that Karr presented to the state court. We also
briefly discuss Taylor’s overall performance on Karr’s claim
for ineffective assistance of trial counsel. Then, we examine
whether a lack of substantiality precludes Karr’s defaulted
claims from proceeding under the Martinez-Trevino exception
to the rule prohibiting procedurally defaulted claims from
being raised in federal habeas proceedings. We close by
examining whether the Martinez-Trevino exception could
apply in a case in this procedural posture.
The district court’s legal conclusions are reviewed de novo
and its factual determinations are examined for clear error.
No. 21-2463 9
Kimbrough v. Neal, 941 F.3d 879, 881 (7th Cir. 2019) (citing
Morris v. Bartow, 832 F.3d 705, 709 (7th Cir. 2016)). Federal
courts may not grant habeas relief on any claim that was
“adjudicated on the merits in State court proceedings” unless
such adjudication “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.” 28 U.S.C. § 2254(d)(1). This standard is
highly deferential, and we may not grant relief where
“fairminded jurists could disagree on the correctness of the
state court’s decision.” Minnick v. Winkleski, 15 F.4th 460, 468
(7th Cir. 2021), cert. denied, No. 21-1042 (U.S. Mar. 21, 2022).
Federal habeas review of a claim for ineffective assistance
of counsel is “doubly deferential.” Id. This is so because we
must give “both the state court and the defense attorney the
benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013). In
reviewing ineffective-assistance claims, we apply a strong
presumption that counsel “rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Minnick, 15 F.4th at 468 (quoting
Strickland v. Washington, 466 U.S. 668, 690 (1984)).
Although an isolated error can support a claim for
ineffective assistance of counsel if the error is sufficiently
egregious and prejudicial, “it is difficult to establish
ineffective assistance when counsel’s overall performance
indicates active and capable advocacy.” Makiel v. Butler, 782
F.3d 882, 902 (7th Cir. 2015) (quoting Harrington v. Richter, 562
U.S. 86, 111 (2011)). The performance of counsel (1) violates
constitutional standards only “when it falls below an
objective standard of reasonableness,” and it (2) prejudices a
petitioner only if “there is a reasonable probability that, but
10 No. 21-2463
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Adeyanju v. Wiersma,
12 F.4th 669, 673 (7th Cir. 2021) (quoting Strickland, 466 U.S. at687–88, 694). “A petitioner is entitled to habeas relief only if
he satisfies both of Strickland’s prongs.” Id.A. Medical Records Claim
First up is Karr’s claim that Taylor was ineffective for
failing to investigate and potentially present evidence of
A.P.’s medication history. Karr argues, as he did before the
district court, that Taylor should have researched A.P.’s
potential use of medications when the assaults took place.
Karr asserts that, had Taylor done so, he could have presented
the jury with evidence casting significant doubt on A.P.’s
memory on the night of the assaults. This argument has two
parts. Karr contends the jury should have heard that (1) A.P.
was prescribed hydrocodone at the time of the assaults; and
(2) A.P. told Karr that at the hospital she had been given an
intravenous line with medication.
At the postconviction evidentiary hearing, A.P. testified
she did not recall whether she had been taking hydrocodone
at the time of the assaults as well as that any drug
consumption did not affect her ability to recall the assaults.
A.P. explained she might have told Karr that she had taken
medication intravenously to account for the additional time
she spent at the hospital. This would conceal from Karr that,
at that time, she was speaking with a police officer about
Karr’s abuse. Considering how the trial proceeded—and
given A.P.’s testimony—the Indiana Court of Appeals
determined that Taylor had made a reasonable strategic
decision not to attempt to obtain A.P.’s medical records. The
Court of Appeals observed that it was not clear whether any
No. 21-2463 11
such records would have been discoverable or admissible at
trial. Thus, the court held that Taylor’s failure to pursue the
investigation of A.P.’s medical records did not prejudice Karr.
In this procedural posture, we must decide whether that
holding was contrary to, or an unreasonable application of,
Strickland. See 28 U.S.C. § 2254(d)(1); Minnick, 15 F.4th at 468.
The ruling of the Indiana Court of Appeals rested on the
evidentiary decisions at trial and the potential defenses
available to Taylor as Karr’s attorney. Most prominently, the
appeals court agreed with the State that the evidence showed
A.P.’s thoughts and speech were clear on the night of the
assaults and during her later conversations with police
officers. Obtaining, and even introducing, A.P.’s medical
records therefore would not have plausibly enabled Taylor to
cast doubt on A.P.’s memory on the night of the assaults. To
show that the state court unreasonably applied Strickland in
making its no-prejudice determination, Karr would have to
demonstrate why the state appeals court’s logic was flawed.
But he has not done so.
In these federal habeas proceedings, Karr has not
challenged the state appeals court’s determination that A.P.’s
thought and speech were clear when she reported the
assaults, which was shortly after they occurred. So, there is no
factual foundation for Karr’s assertion that the evidence he
claims should have been investigated and introduced at trial
would have affected the jurors’ assessment of A.P.’s
credibility. This is particularly true because, per A.P.’s
testimony and the absence of any contradictory evidence,
there is reason to doubt that she was taking medication at the
time of the assaults. It follows that there is no “reasonable
probability that, but for counsel’s [alleged] unprofessional
12 No. 21-2463
errors [regarding A.P.’s medications], the result of the
proceeding would have been different.” Adeyanju, 12 F.4th at
673. We agree with the district court that the Indiana Court of
Appeals’ no-prejudice determination with respect to A.P.’s
medication records was a reasonable application of Strickland.
The state appeals court also described Taylor’s decision
not to pursue the discovery of A.P.’s medical records as a
strategic decision. “[W]hen counsel’s pretrial investigation is
less than complete, counsel’s strategic choices are ‘reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.’” Olvera v. Gomez, 2
F.4th 659, 669 (7th Cir. 2021) (quoting Strickland, 466 U.S. at
691). Here, Ruemmele introduced evidence at one of the
posttrial evidentiary hearings that Taylor was aware a
detective had met with A.P. a few days after the assaults
occurred. During that meeting, the detective averred, “the
vast majority of the time [A.P.] was collected and matter-of-
fact.”
This testimony supports the state appeals court’s
conclusion that Taylor’s decision not to investigate A.P.’s
medication records was a reasonable exercise of his
professional judgment. Given that Taylor knew A.P. could
speak in a calm and detailed manner about what happened to
her on the night of the assaults, he reasonably could have
concluded that any records of her medications would not
have affected the jury’s evaluation of her credibility. Notably,
Ruemmele did not elicit any testimony contradicting this
rationale during her examination of Taylor at the evidentiary
hearing.
Moreover, as the State notes, any attempt Taylor could
have made to impeach A.P. with evidence of her medication
No. 21-2463 13
history would have been contrary to the theory of defense he
presented to the jury—that A.P. had purposely fabricated the
story of the assault for financial gain. Again, there was no
evidence presented at the postconviction hearings to refute
this rationale for Taylor’s decision not to pursue the
medication records. Without more, Karr has not shown that
the Indiana Court of Appeals unreasonably applied Strickland
in concluding that he suffered no prejudice from Taylor’s
strategic decisions regarding A.P.’s medication records.
B. Cellphone Claim
Next, we consider Karr’s claim that Taylor provided
ineffective assistance because he did not present the jury with
evidence relating to McGovern’s forensic audit of Karr’s
cellphone. According to Karr, this amounted to ineffective
assistance because the audit did not reveal that Karr accessed
a pornographic video or made a video recording during the
second assault. The Indiana Court of Appeals ruled that Karr
suffered no prejudice under Strickland from Taylor’s decision
in this respect. The state appeals court reasoned that even if
this evidence had been presented, it would not necessarily
have undermined A.P.’s account of the assaults. That court
also concluded there was sufficient evidence adduced at trial
for the jury to draw credibility determinations about A.P.’s
testimony.
We agree with the district court that the Indiana Court of
Appeals reasonably applied Strickland in reaching a no-
prejudice determination on this issue as well. Even if the
forensic analysis of Karr’s cellphone had been presented to
the jury, it is extremely unlikely that evidence would have
changed the trial’s outcome. Recall that McGovern could not
exclude the possibility that one or more videos had been
14 No. 21-2463
deleted from Karr’s cellphone and did not appear on the
officer’s forensic-analysis report. Had Taylor introduced the
cellphone evidence at trial, then on cross-examination the
State could have elicited the limits of that evidence. Karr has
therefore not shown it is likely that the introduction of the
cellphone evidence would have impeached A.P.’s testimony
about Karr’s cellphone use.
Further, as the district court noted, presumably the State
would have also argued that A.P. was, at most, mistaken to
assume Karr was viewing pornography or taking a video
during the second assault. At no point has Karr explained
why the jury would not have accepted such an explanation.
Considering the cellphone evidence in the context of the
entire trial, Thompson v. Vanihel, 998 F.3d 762, 767–68 (7th Cir.
2021), there is no reasonable probability that, but for Taylor’s
alleged unprofessional errors, the result of the trial would
have been different.
Karr’s arguments about the impact of the forensic audit of
his cellphone on A.P.’s credibility are likewise unconvincing.
The jury heard from several witnesses, including A.P., officers
Denison and Boudreau, and nurse Bowens. The jury “had
ample evidence on which to base a determination of [A.P.’s]
credibility.” Hodkiewicz v. Buesgen, 998 F.3d 321, 328 (7th Cir.
2021). It was therefore “reasonable for the court of appeals to
conclude … there is not a reasonable likelihood” that this one
piece of evidence “would have so changed the jury’s
credibility determination that they would have acquitted
[Karr.]” Id. (citations omitted).
Essentially, Karr contends “in a credibility contest, counsel
must employ scorched-earth tactics in attacking the
credibility of the primary witness.” Gilbreath v. Winkleski, 21
No. 21-2463 15
F.4th 965, 991 (7th Cir. 2021). But Karr ignores that there are
“significant downsides” to attacking a sympathetic accuser or
“even being perceived as attacking her.” Id. The Indiana Court
of Appeals recognized those downsides when, in making its
no-prejudice determination, it noted that the forensic analysis
of Karr’s cellphone “would not necessarily undermine
[A.P.’s] account of the incidents.”
In fact, an attempt to impeach A.P. with the forensic
analysis of Karr’s cellphone could have hurt rather than
helped Karr’s defense. See id. at 990–91. The jury might have
perceived a potential attempt to cast A.P. as unreliable—by
focusing on an extraneous part of her account—as reinforcing
the strength of the State’s case on the core details of the
assaults. Thus, the Indiana Court of Appeals reasonably
applied Strickland in ruling that Karr was not prejudiced by
Taylor’s failure to present evidence from the forensic analysis
of the cellphone.
C. Taylor’s Overall Performance
Because we conclude that Karr’s prejudice arguments fall
short, we need not reach the question of whether Taylor’s
overall performance was deficient. Indeed, this court’s
precedents discourage us from undertaking a wholesale
analysis of attorney performance in such circumstances. See
Adeyanju, 12 F.4th at 676; Thill v. Richardson, 996 F.3d 469, 476–
77 (7th Cir. 2021). Yet, without deciding the question, the State
may be correct that Taylor’s overall performance was at least
adequate. According to the trial court, Taylor’s “skillful
objections” kept evidence damaging to Karr’s defense from
being presented to the jury. Taylor also argued for and
procured a directed verdict of not guilty on Count 5, the
charge of intimidation. And the jury acquitted Karr on Count
16 No. 21-2463
4, the charge of strangulation. This all supports the conclusion
that Taylor’s performance did not fall below an objective
standard of reasonableness. Strickland, 466 U.S. at 688.
III
We turn now to the six additional claims that were
procedurally defaulted when they were not raised in Indiana
state court. The Supreme Court has established the general
rule that federal habeas petitioners may not use ineffective
assistance of postconviction counsel as a rationale for
excusing their procedural defaults of claims that trial counsel
was ineffective under Strickland. See Coleman v. Thompson, 501
U.S. 722, 752–54 (1991).
Karr asserts the equitable exception delineated by the
Supreme Court in Martinez and Trevino excuses these
procedural defaults. In Martinez, the Supreme Court
fashioned a “narrow exception” to the rule in Coleman:
“Inadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial.” 566 U.S. at
9. That exception applies to excuse procedural defaults in
federal habeas proceedings if state procedural law required a
petitioner’s claims to be raised in an initial-review collateral
proceeding, but the petitioner failed to do so. See id. at 11–12.
The Court in Martinez further wrote that “[t]o overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that
the claim has some merit.” Id. at 14.
The next year in Trevino the Court extended the Martinez
exception to include cases where a state’s procedural rules
No. 21-2463 17
meant that a prisoner was technically permitted to raise
claims for ineffective assistance of trial counsel on direct
appeal, yet the structure and design of the state procedural
system made it “virtually impossible” to do so. 569 U.S. at 417.
This court has added our take on this exception. In Brown v.
Brown, we held that Indiana’s procedural system makes it
sufficiently difficult for claims of ineffective assistance of trial
counsel to be brought on direct appeal such that “[t]he
Martinez-Trevino form of cause to excuse procedural default is
available to Indiana defendants who seek federal habeas
relief.” 847 F.3d 502, 512–13 (7th Cir. 2017).
Under Indiana’s Davis-Hatton procedure, 1 a prisoner may
“suspend his direct appeal to pursue an immediate petition
for postconviction relief for the purpose of developing a
factual record to support the claim. The direct appeal and
collateral-review appeal are then consolidated.” Crutchfield v.
Dennison, 910 F.3d 968, 975 (7th Cir. 2018). This procedure is
limited and rarely used, however, and “the Indiana appellate
courts have expressed a strong preference for reserving
Strickland claims for collateral review.” Id. Because the Davis-
Hatton procedure, along with other aspects of the structure,
design, and operation of Indiana’s procedural system, does
not offer most defendants a meaningful opportunity to
present a claim for ineffective assistance of trial counsel on
direct appeal, Indiana defendants who seek federal habeas
relief may use the Martinez-Trevino exception. See id. at 976;
Brown, 847 F.3d at 512–13.
1
Davis v. State, 368 N.E.2d 1149 (Ind. 1977); Hatton v. State, 626 N.E.2d 442(Ind. 1993).
18 No. 21-2463
The State counters that the Martinez-Trevino exception
does not apply here for three reasons: (1) Ruemmele caused
the procedural defaults, at least in part when she served as
direct-appeal counsel (rather than solely as postconviction
counsel); (2) Karr retained Ruemmele (instead of the State
appointing her); and (3) the defaulted claims are without
merit. We focus primarily on the third rationale—the lack of
a substantial claim with “some merit.” Martinez, 566 U.S. at
14. While “full consideration of the merits is not required,”
our inquiry into whether a petitioner’s claims are substantial
under Martinez and Trevino is deeper than our court’s
examination on whether to grant a certificate of appealability.
Brown, 847 F.3d at 515. Beyond that clarification, Brown does
not address the contours of the applicable standard for
determining what qualifies as a substantial claim under
Martinez and Trevino.
Here, regardless of the precise standard for a substantial
claim, Karr cannot meet it. Now, we conclude that Karr’s
defaulted claims did not even warrant the issuance of a
certificate of appealability, as they are insufficiently
developed to show that “jurists of reason could disagree with
the district court’s resolution … or that jurists could conclude
the issues presented are adequate to deserve encouragement
to proceed further.” Id. (quoting Miller-El v. Cockrell, 537 U.S.
322, 327 (2003)). Each of the six defaulted claims is vague,
conclusory, or both. There is, therefore, no basis on which to
debate the district court’s decision. See id. Next, we briefly
review each of Karr’s defaulted claims.
Claim One (Improper Jury Instruction). Karr asserts Taylor
was ineffective for failing to object to a jury instruction, which
did not state that witness credibility may be impeached by
No. 21-2463 19
prior inconsistent statements. As the district court observed,
“Karr does not identify which jury instruction he is talking
about, nor does he elaborate on why the failure to object
amounts to ineffective assistance.” Karr does not address this
deficiency on appeal.
Claim Two (Impeachment of Bowens). Karr alleges Taylor was
ineffective for failing to impeach Bowens, the forensic nurse
who examined A.P. Karr fails to specify how he believes
Taylor should have impeached Bowens. And we cannot
readily determine from the record what material Taylor
allegedly should have used for impeachment or how this
purported impeachment would have impacted Karr’s overall
defense.
Claim Three (DNA Testing). According to Karr, Taylor
should have ordered DNA testing of hair specimens from
A.P. But the hair sample obtained from A.P. at the hospital
was discarded, and Karr does not contend that hair specimens
originating with someone other than A.P. were introduced at
trial, so it is difficult to discern what would have been
accomplished if Taylor had A.P.’s hair tested. On appeal, Karr
does not explain the import of any DNA testing that was not
conducted.
Denison’s disposal of the hair sample also underlies Karr’s
claim under Brady v. Maryland, 373 U.S. 83 (1963). That claim
lacks merit as well, though. There can be no viable Brady claim
where, as here, the defendant and his attorney knew at the
time of trial that the evidence had been discarded. To succeed
on a claim that evidence was unlawfully destroyed under the
Supreme Court’s decision in Arizona v. Youngblood, Karr
would have to “show bad faith on the part of the police” in
failing to preserve the evidence in question. 488 U.S. 51, 58
20 No. 21-2463
(1988). He also must demonstrate that “the exculpatory value
of the evidence was apparent before it was destroyed.”
McCarthy v. Pollard, 656 F.3d 478, 485 (7th Cir. 2011). Karr can
make neither showing—nor does he attempt to do so—
because there is no reason to believe Denison acted in bad
faith by discarding the hair sample or that any exculpatory
value of the hair sample was apparent at the time it was
discarded. Even accounting for Karr’s incorrect framing of the
issue, there is no Youngblood claim here that meets the
threshold requirement of substantiality under Martinez. See
Brown, 847 F.3d at 515.
Claim Four (Double Jeopardy). Karr contends Taylor was
ineffective for not objecting to a violation of the double-
jeopardy protections under the Indiana Constitution. His
brief does not explain this alleged violation, and no violation
is apparent from our review of the trial proceedings.
Claim Five (Vague Jury Charge). Karr also alleges Taylor
failed to object to an unconstitutionally vague jury charge. As
the district court noted, Karr did not identify the jury charge
or explain why it is vague. Nor does he address the issue in
his appellate briefs.
Claim Six (Hearsay in Jury Charge). Karr argues last that
Taylor should have objected to improper hearsay included in
a jury charge concerning witness testimony. Before the
district court, Karr asserted the witness testimony was that of
Amy Summerfield, but there was no record that anybody by
that name testified at Karr’s trial. On appeal, Karr does not
identify the witness testimony or alleged hearsay at issue.
No. 21-2463 21
* * *
In sum, not one of these six claims is substantial under
Martinez. Karr has not offered a plausible argument that any
defaulted claim is substantial or has “some merit.” Martinez,
566 U.S. at 14. So, the Martinez-Trevino exception does not
excuse the procedural defaults.
IV
Given this case’s procedural posture, a question arises as
to whether defaulted claims, if substantial, would succeed
here.
First, we agree with the State that Ruemmele’s
representation of Karr on both initial postconviction review
and on direct appeal removes this case from the terrain
occupied by the Martinez-Trevino exception. On Karr’s behalf
Ruemmele presented four claims to the Indiana Court of
Appeals: two challenges to Karr’s conviction and sentence,
and two arguments regarding ineffective assistance of trial
counsel. Ruemmele was acting—primarily, if not
exclusively—in her capacity as Karr’s direct-appeal counsel
when she procedurally defaulted the six claims for ineffective
assistance of trial counsel. Thus, the Indiana Court of Appeals
did not hear those six claims because Ruemmele failed to raise
them. Her role as Karr’s counsel on direct appeal
distinguishes this case from Martinez, where the Supreme
Court found it crucial that the error committed by the
prisoner’s attorney occurred in initial-review collateral
proceedings, precluding the Court from considering or
adjudicating the prisoner’s ineffective-assistance-of-trial-
counsel claim on direct review of the state proceeding. See 566
U.S. at 10–11.
22 No. 21-2463
Here, as the State argues, Karr could have raised a claim
before the Indiana Supreme Court that his direct-appeal
counsel had been ineffective in procedurally defaulting the six
claims for ineffective assistance of trial counsel. But he did not
do so, perhaps because Ruemmele was still representing him
on further appeal. “[A]n ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of another
claim can itself be procedurally defaulted.” Edwards v.
Carpenter, 529 U.S. 446, 453 (2000); see also Smith v. Gaetz, 565
F.3d 346, 352 (7th Cir. 2009) (ineffective assistance of appellate
counsel must be raised at each level of state-court review or
else it is procedurally defaulted). By failing to raise ineffective
assistance of appellate counsel before the Indiana Supreme
Court, Karr procedurally defaulted that claim, which if
successful could have excused the procedural defaults of his
six claims for ineffective assistance of trial counsel.
A related inquiry is whether, notwithstanding
Ruemmele’s dual role as counsel on initial review and direct
appeal, Karr’s retention of her also prevents the procedural
defaults from being excused.
The State asserts it is not responsible for a procedural
default that results from the allegedly deficient performance
of a retained, rather than appointed, postconviction counsel.
Martinez specified two scenarios in which a prisoner may
establish cause to excuse the default of an ineffective-
assistance-of-trial-counsel claim: “The first is where the state
courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The
second is where appointed counsel in the initial-review
collateral proceeding, where the claim should have been
raised, was ineffective under [Strickland].” 566 U.S. at 14. The
No. 21-2463 23
State presents the question whether a third scenario—where
the prisoner retains counsel—falls within the scope of
Martinez. Karr disagrees with the State’s analysis, arguing
that how counsel undertook his representation does not
impact whether there is cause to excuse the defaults.
The parties touch upon this question in their submissions,
but they do not fully and adequately present the arguments
for our consideration, Liu v. SEC, 140 S. Ct. 1936, 1947 (2020),
especially on a question with a likelihood of recurrence and
significant consequences. See Smith v. Pro. Transp., Inc., 5 F.4th
700, 703–04 (7th Cir. 2021). Accordingly, we choose not to
reach it here.
* * *
For these reasons, we AFFIRM the judgment of the district
court.