Dorsey v. Vandergriff

• Decision Date: 07 April 2022
• Docket Number: 20-2099
• Parties: Brian J. DORSEY, Petitioner - Appellant v. David VANDERGRIFF, Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

30 F.4th 752

Brian J. DORSEY, Petitioner - Appellant

v.David VANDERGRIFF, Respondent - Appellee

No. 20-2099

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2022

Filed: April 7, 2022

Marshall L. Dayan, Asst. Fed. Public Defender, Pittsburgh, PA, argued (Kirk J. Henderson, Asst. Fed. Public Defender, Pittsburgh, PA, Rebecca Woodman, Kansas City, MO, on the brief), for petitioner-appellant.

Gregory M. Goodwin, Asst. Atty. Gen., Jefferson City, MO, argued (Eric S. Schmitt, Atty. Gen., on the brief), for respondent-appellee.

Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

A jury sentenced Brian J. Dorsey to death for murdering his cousin and her husband. After unsuccessfully challenging his sentence on direct appeal and in state postconviction proceedings, Dorsey petitioned the district court¹ for a writ of habeas corpus . The district court denied the petition, and a panel of this court granted a certificate of appealability on the question whether Dorsey could overcome the procedural default of his claim that his trial attorneys were ineffective for failing to investigate and present evidence of his adjustment to incarceration. We affirm.

I.

Two days before Christmas 2006, drug dealers arrived at Brian Dorsey's apartment in Jefferson City, Missouri demanding payment on a debt that Dorsey owed them. Dorsey called his cousin, Sarah Bonnie, for help. Sarah and her husband, Ben, went to Dorsey's apartment. Ben entered the apartment and stayed until the drug dealers left. Ben and Sarah then drove Dorsey to their home to spend the night with them and their four-year-old daughter. During the night, Dorsey raped Sarah and murdered her and Ben with their shotgun. Ben, a mechanic, had been in the process of fixing Dorsey's car for free, so Dorsey escaped in Sarah's car. He took two firearms, jewelry, electronics, and other personal property of the Bonnies. Dorsey attempted to use these items to repay his drug debt.

Dorsey turned himself in a few days later and, after being read his Miranda rights, confessed. When charged with murdering Sarah and Ben, he pleaded guilty. The State sought the death penalty.

Missouri Department of Corrections records existing at the time of the sentencing trial indicated that, in many respects, Dorsey was adjusting well to incarceration. For example, one form indicated that he was "[r]espectful of others," "[a]void[ed] fights unless directly challenged," and was "[c]ooperative with staff." That said, the evidence of Dorsey's adjustment was not unequivocally positive: The same form indicated that Dorsey "[h]ad difficulties with free time," was not "[d]ependable in assignments," and was "[s]luggish." And another form indicated that Dorsey had not "[e]xpressed need for self-improvement," had "[d]efied authority," had not "[a]ccepted responsibility for his situation," and was "[s]elf-centered."

At sentencing, Dorsey was represented by two attorneys with experience handling capital cases. They did not present—or, according to Dorsey, even investigate—evidence of his adjustment to incarceration. Instead, given the nature of the crimes and the fact that "some of the aggravating factors were not really defendable," Dorsey's attorneys focused on trying to convince the jury that "this was an aberration for [Dorsey]; that he had a history of being a good person, and that he had some things in him that a jury could connect to."

The jury returned a verdict of death for each murder. It found seven aggravating factors beyond a reasonable doubt. The trial court entered judgment on the verdicts, and the Missouri Supreme Court affirmed on direct appeal. State v. Dorsey , 318 S.W.3d 648, 651 (Mo. 2010). Dorsey sought postconviction relief in state court, and counsel was appointed to represent him. Although Dorsey raised numerous other claims, he did not argue that his trial attorneys were ineffective for failing to investigate and present evidence of his adjustment to incarceration. The state court denied postconviction relief, and the Missouri Supreme Court affirmed. Dorsey v. State , 448 S.W.3d 276, 282, 301 (Mo. 2014). Dorsey then petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254, raising twenty-eight claims, including a claim that his trial attorneys were ineffective for failing to investigate and present evidence of his adjustment to incarceration. More than three years later, while his § 2254 petition remained pending, Dorsey asked to expand the record to include an affidavit from an investigator who averred that law enforcement and corrections officials who knew Dorsey spoke highly of him and an affidavit from a psychologist who opined that Dorsey would likely adjust well in prison.

The district court denied the petition. It concluded that Dorsey's ineffective-assistance claim was procedurally defaulted because Dorsey did not raise it during state postconviction proceedings and that Dorsey could not overcome the procedural default under Martinez v. Ryan , 566 U.S. 1, 14, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), because the claim was insubstantial. The district court also denied Dorsey's motion to expand the record, noting that the new evidence consisted largely of hearsay.

Dorsey applied for a certificate of appealability, which a panel of this court granted as to the following question: "Under Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), did the district court err in concluding that Dorsey's ineffective-assistance-of-trial-counsel claim based on trial counsel's alleged failure to investigate and present evidence of Dorsey's good conduct while in custody is insubstantial and is thus procedurally defaulted?"

II.

We review de novo whether a claim of ineffective assistance of trial counsel is substantial under Martinez . See Deck v. Jennings , 978 F.3d 578, 581 (8th Cir. 2020). Subject to exceptions inapplicable here, see Gray v. Netherland , 518 U.S. 152, 165-66, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) ; Murray v. Carrier , 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), a federal court may hear a procedurally defaulted claim for postconviction relief only if the petitioner shows "cause" for and "prejudice" from the procedural default, Wainwright v. Sykes , 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Coleman v. Thompson , the Supreme Court held that because there is no Sixth Amendment right to postconviction counsel, ineffective assistance of postconviction counsel generally does not constitute cause for procedural default. 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). But the Court carved out an exception to this rule in Martinez , where it held that state postconviction counsel's ineffectiveness constitutes "cause" excusing procedural default if it consisted of a failure to assert a "substantial" claim of ineffective assistance of trial counsel. 566 U.S. at 14, 132 S.Ct. 1309. A "substantial" claim is one with "some merit." Id. (citing Miller-El v. Cockrell , 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ).

Here, Dorsey concedes that his claim is procedurally defaulted because he failed to raise it in state postconviction proceedings. To show cause, he attributes his failure to raise his claim in state postconviction proceedings to the ineffective assistance of his state postconviction counsel. Accordingly, Martinez requires Dorsey to show that his underlying claim of ineffective assistance of trial counsel has "some merit." See id.

The parties disagree about what it means for a claim of ineffective assistance of trial counsel to have "some merit." Dorsey argues that it means a reasonable jurist could believe that or find it debatable whether trial counsel was ineffective. In support of this view, Dorsey notes that Martinez followed its holding that "is substantial" means "has some merit" with a "cf. " cite to Miller-El ’s description of the "standards for certificates of appealability to issue." Martinez , 566 U.S. at 14, 132 S.Ct. 1309. Miller-El held that 28 U.S.C. § 2253(c)(2) ’s requirement that the claim the applicant seeks to appeal must be "substantial"—the same term used by Martinez , 566 U.S. at 14, 132 S.Ct. 1309 —means that the court of appeals should issue a certificate of appealability only if "reasonable jurists would find the district court's [rejection of the claim] debatable or wrong." Miller-El , 537 U.S. at 336-38, 123 S.Ct. 1029. Dorsey cites cases from this circuit and other circuits that support his view. E.g. , Harris v. Wallace , 984 F.3d 641, 648-49 (8th Cir. 2021) ; Hittson v. GDCP Warden , 759 F.3d 1210, 1269-70 (11th Cir. 2014).

The district court disagreed, concluding that Martinez ’s substantiality standard and Miller-El ’s certificate-of-appealability standard "are two different standards." According to the State, our decisions in Ward v. Hobbs , 738 F.3d 915 (8th Cir. 2013), and Dansby v. Hobbs , 766 F.3d 809 (8th Cir. 2014), compel this conclusion. The State argues that Ward and Dansby control over any out-of-circuit or later Eighth Circuit caselaw supporting Dorsey's view. See Clark v. Bertsch , 780 F.3d 873, 876 (8th Cir. 2015) ("[P]anels are to determine and follow the earliest precedent in the event of an intra-circuit panel split.").

We agree with Dorsey. In Taylor v. Steele , we stated that Martinez ’s some-merit requirement "means that whether [the claimant's] trial counsel was ineffective ... must at least be debatable among jurists of reason." 6 F.4th 796, 801 (8th Cir. 2021) (internal quotation marks omitted), petition for cert. filed , ––– U.S.L.W. –––– (U.S. Mar. 23, 2022) (No. 21-7449); see also Harris , 984 F.3d at 648-49 ; accord McGill v. Shinn , 16 F.4th 666, 698-99 (9th Cir. 2021) ; Owens v. Stirling , 967 F.3d 396, 424 (4th Cir. 2020) ; Workman v. Superintendent Albion SCI , 915 F.3d 928, 937-38 (3d Cir. 2019) ; Brown v. Brown , 847 F.3d 502, 517 (7th Cir. 2017) ; Hittson , 759 F.3d at 1269-70. Ward and Dansby do...