Brown v. Vanihel

7 F.4th 666

Dentrell BROWN, Petitioner-Appellee, Cross-Appellant,

v.Frank VANIHEL, Warden, Wabash Valley Correctional Facility, Respondent-Appellant, Cross-Appellee.

Nos. 20-2473 & 20-2474

United States Court of Appeals, Seventh Circuit.

Argued June 17, 2021

Decided August 5, 2021

Michael Ausbrook, Attorney, Willow Thomas, Law Student, Bloomington, IN, for Cross-Appellant.

Jesse Drum, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellant.

Before Sykes, Chief Judge, and Kanne and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Petitioner Dentrell Brown was convicted of murder in an Indiana state court. His trial lawyer failed to object to a serious violation of his constitutional right to confront witnesses against him. The federal district court granted Brown a conditional writ of habeas corpus, and both sides appealed. The State appealed to try to reverse the writ; petitioner Brown cross-appealed seeking an order barring any retrial. While these appeals were pending, the State complied with the writ, resulting in a state court order vacating the original judgment of conviction. Brown has moved to dismiss the State's appeal and, if we grant dismissal, to dismiss his cross-appeal. We conclude that the state court's vacatur of the conviction ended this court's jurisdiction under both 28 U.S.C. § 2254 and Article III of the United States Constitution. We dismiss the State's appeal as moot and dismiss Brown's cross-appeal upon his motion.

I. Procedural History

In 2009, petitioner Brown was convicted of murder in an Indiana state court and sentenced to sixty years in prison. He was thirteen years old when he was charged but was tried as an adult. D.B. v. State , 916 N.E.2d 750 (Ind. App. 2009) (affirming conviction and sentence). Brown sought but failed to win post-conviction relief in the state courts for ineffective assistance of counsel. D.B. v. State , 976 N.E.2d 146 (Ind. App. 2012). He then filed a federal petition for writ of habeas corpus, which the district court denied. Deciding a question of first impression, this court reversed and remanded for an evidentiary hearing. Brown v. Brown , 847 F.3d 502, 508 (7th Cir. 2017), rehearing en banc denied, 869 F.3d 507 (7th Cir. 2017).

On remand the district court granted Brown a conditional writ of habeas corpus in a thorough opinion. Brown v. Brown , 471 F. Supp. 3d 866, 869 (S.D. Ind. 2020). The root of the problem was a Bruton problem in Brown's joint trial. See Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The court admitted an out-of-court statement (a jailhouse confession to another detainee) by the co-defendant. The statement was hearsay as to Brown but implicated him in the fatal shooting. Brown had no ability to cross-examine the declarant, his co-defendant. Brown's trial lawyer failed even to ask for a limiting instruction, and the district court found that the failure amounted to deficient performance and prejudiced Brown. The conditional writ ordered:

The State of Indiana shall vacate all criminal penalties stemming from Mr. Brown's murder conviction in Elkhart Circuit Court Case No. 20C01-0806-MR-00002 and release him from custody pursuant to that conviction unless the State of Indiana elects to retry Mr. Brown within 120 days of this Final Judgment.

The State's appeal to this court was docketed as No. 20-2474. Brown filed a cross-appeal, docketed as No. 20-2473, challenging the district court's denial of his motions to authorize discovery and expand the record in light of statements made by the elected county prosecutor in a 2018 campaign debate that Brown asserts directly contradicted the prosecution's theory at trial.

Less than 120 days after the district court's conditional writ, the State filed a motion in state court to vacate Brown's murder conviction and to initiate re-trial proceedings in a new criminal case. The State also requested to transfer Brown to pretrial custody. The state court issued an order to transport Brown to the Elkhart County jail for pretrial proceedings, which have begun. On March 24, 2021, the state court vacated Brown's 2009 conviction and sentence.

Brown filed three motions in this court to dismiss the State's appeal. The first argued that this court lost jurisdiction under Article III when the State elected to transfer Brown's custody for pretrial proceedings. The second argued that Brown's transfer to pretrial custody meant that he was no longer "in custody" under the original conviction and sentence to which the district court's judgment was directed, so that jurisdiction under 28 U.S.C. § 2254(a) was lost. The third argued that once the state court vacated his underlying conviction to allow re-trial, the State's appeal became moot for constitutional purposes. We conclude that the order vacating the state court conviction caused the State's appeal to become moot under both § 2254 and Article III.¹

II. Mootness Under 28 U.S.C. § 2254

A federal court may entertain "a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court ...." 28 U.S.C. § 2254(a) (emphasis added). The state court's vacatur of Brown's conviction ended this court's jurisdiction over the State's appeal because the appeal attacks an order directed to a judgment that no longer exists.

The Sixth Circuit has explained the relevant metaphysics of habeas corpus jurisdiction in two helpful cases. The critical point is that a federal writ affects only the body of the petitioner; it does not act upon (such as vacate) a state court judgment. If the state court vacates the underlying judgment, there is usually nothing more for the federal courts to do.

In Eddleman v. McKee , 586 F.3d 409 (6th Cir. 2009), as here, the district court had issued a conditional writ of habeas corpus: release the prisoner or retry him. The Sixth Circuit had affirmed in an earlier appeal and remanded with instructions to order release unless the state promptly granted a new trial. The state court then vacated the original conviction and released Eddleman. The prosecution then quickly re-arrested him on the same charges. The district court found that the state courts had not re-tried Eddleman quickly enough and issued an order barring retrial. The state appealed that order, and the Sixth Circuit held that after the original conviction was vacated, the district court acted without jurisdiction when it issued the new order barring retrial:

For federal habeas jurisdiction to exist under § 2254, therefore, a state prisoner must be held pursuant to a judgment—rather than, say, an indictment or criminal information. That limitation, among other reasons, is why § 2254 petitions come to us after a state prisoner is convicted and not before.

More to the point here, the limitation also means that, once the unconstitutional judgment is gone, so too is federal jurisdiction under § 2254.

Id. at 413 (emphasis omitted). As the Sixth Circuit explained, the district court's conditional writ gave the state an option: either retry Eddleman within a reasonable time or release him. The state chose the latter course. After Eddleman's conviction was vacated in state court, thereby releasing him from custody pursuant to the unconstitutional judgment, "per the plain terms of § 2254, the district court's jurisdiction over Eddleman's case came to an end." Id. The district court therefore did not have jurisdiction to grant the unconditional writ barring re-prosecution.

Similarly, in Gillispie v. Warden , 771 F.3d 323 (6th Cir. 2014), the district court granted a conditional writ of habeas corpus. After the state court later vacated Gillispie's convictions, the district court denied the state's motion for relief from that state judgment. The Sixth Circuit affirmed, holding that the state court's vacatur of Gillispie's convictions divested the district court of jurisdiction over the habeas petition. "[T]he vacatur of Gillispie's criminal judgment, combined with his by-then unconditional release, meant that all the purposes of the conditional writ had been met." Id. at 326. The court explained: " Eddleman ’s unequivocal holding, standing alone, is enough to establish that the district court was without further jurisdiction in Gillispie's case once his criminal judgment was vacated; but it bears mention that even the facts of Eddleman are materially identical to those here." Id. at 328.

The critical facts in this case are also identical: the conditional writ ordered the State of Indiana to either release Brown or elect to re-try him. The State picked both, just as the state effectively did in Eddleman by releasing Eddleman and later re-arresting him. Here, the State moved to release Brown and to vacate his conviction and sentence. As in Eddleman and Gillispie , the state court's vacatur of Brown's conviction ended federal jurisdiction over Brown's habeas corpus petition under the terms of § 2254.

III. Article III Mootness

As an alternate ground for dismissing the State's appeal, the vacatur also rendered the State's appeal moot under Article III of the Constitution. The proper question for mootness on appeal is "not whether we may return the parties to the status quo ante, but rather, whether it is still possible to ‘fashion some form of meaningful relief’ to the appellant in the event he prevails on the merits." Flynn v. Sandahl , 58 F.3d 283, 287 (7th Cir. 1995), quoting Church of Scientology v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (emphasis in original). The answer is no, it is no longer possible to grant meaningful relief to the appellant.

Again, a federal court's writ of habeas corpus does not vacate the disputed state conviction. Only a state court may do that. Nor can federal courts reinstate state convictions. Federal courts reviewing state convictions under 28 U.S.C. § 2254 act only on the body of the petitioner, not on the conviction itself. "Habeas lies to enforce the right of...