Frentz v. Brown

• Decision Date: 22 November 2017
• Docket Number: No. 15-3479,15-3479
• Citation: 876 F.3d 285
• Parties: David Mark FRENTZ, Petitioner-Appellant, v. Richard BROWN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

876 F.3d 285

David Mark FRENTZ, Petitioner-Appellant,
v.
Richard BROWN, Respondent-Appellee.

No. 15-3479

United States Court of Appeals, Seventh Circuit.

Argued October 25, 2017
Decided November 22, 2017

Alan Michael Freedman, Attorney, Midwest Center for Justice, Ltd., Evanston, IL, for Petitioner-Appellant.

Andrew A. Kobe, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before Kanne and Sykes, Circuit Judges, and Darrow, District Judge.^*

876 F.3d 288

Darrow, District Judge.

David Frentz filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 after the Court of Appeals of Indiana affirmed the denial of his petition for postconviction relief in state court. That petition attacked Frentz's conviction for the January 24, 2005 murder of his housemate, Zackary Reynolds. Before his trial on that charge, Frentz had filed a notice that he would pursue a defense of not guilty by reason of insanity, but, after consulting with an expert, did not pursue the defense. Frentz was convicted by a jury of the murder, and of associated drug charges, and sentenced to 59 years of imprisonment. He appealed to the Court of Appeals of Indiana, which affirmed. He then filed his postconviction petition in Indiana court alleging ineffective assistance of counsel for, among other things, not having pursued the insanity defense. His petition was denied, and he appealed to the Court of Appeals of Indiana, which affirmed the denial. The Indiana Supreme Court denied transfer of the case,¹ and Frentz filed a petition for writ of habeas corpus in the Southern District of Indiana. The district court denied the petition, and declined to issue a certificate of appealability. This Court then granted the certificate, finding that Frentz had made a substantial showing of the denial of his right to effective assistance of counsel because counsel failed to pursue an insanity defense.

Because the Indiana appellate court did not unreasonably apply federal law in denying Frentz's postconviction petition, we now affirm the district court's decision.

I. Background²

Frentz, who was 53, lived with Reynolds, 23, who worked on Frentz's farm in Orange County, Indiana. Frentz was an alcoholic and had been drinking heavily for 35 years; on Saturday, January 22, 2005, his doctor told him that he would die if he did not stop drinking. His doctor gave him medication to deal with delirium tremens, a symptom of alcohol withdrawal. He stopped drinking that day.

On Sunday, January 23, Frentz ran errands, worked on a pickup truck with Reynolds at the house they shared, and then ran more errands. On his way back to the house Frentz stopped at a fast-food drive-through in Salem, Indiana, between 10:00 and 11:00 in the evening. During this time he talked on his cell phone with his friend Carl Brock. Frentz told Brock that he had been "feeling bad," and had been having hallucinations, including, according to Brock "either light poles or salt shakers dancing or something like that ... dogs running across the road laughing at him and stuff like that." Worried, Brock asked Frentz to call him when he got home.

876 F.3d 289

Brock called Frentz an hour or two later. Frentz asked Brock and Brock's wife if either of them had heard from Dusty Austin, Frentz's ex-girlfriend. Frentz claimed to have been "fucked over" by a friend, Chuck Woolsey, who he now thought to be involved with Austin. According to Brock, Frentz went during this conversation from "feeling ill and hallucinating to someone who was very sober and [not] really talkative at all." Brock made some jokes, hoping to lighten the mood; instead, Frentz hung up. Brock tried calling him back immediately, with no luck.

At about 3:30 a.m., Brock was able to reach Frentz on the phone. Frentz sounded "freaked out," and told Brock to call the police. Frentz also said during this conversation that "he put PCP in that shit and people [are] up here to fuck with us." (Brock assumed this was in reference to Woolsey.) During the conversation, Frentz was "hollering" at Reynolds, but Brock never heard Reynolds say anything back. When Brock asked to talk to Reynolds, Frentz hung up. When Brock's wife called Frentz back and asked to talk to Reynolds, Frentz hung up again.

Sometime early that morning, two of Frentz's neighbors saw and heard Frentz's pickup truck speeding down the road. Frentz called 911 at about 5:30 a.m., and said that several people were trying to break into his house. The connection cut out several times, but Frentz conveyed that people had broken into his house, that one of them was shooting, that his friend had been shot in the chest but was still breathing, that the people were still in his home, that they were "trying to get in the windows," and doors, and that he had "locked the door back." Police officers arrived at his house to find no signs of vehicle or foot traffic outside. Frentz was standing in his kitchen, looking disoriented and agitated. He opened the door for the officers, one of whom saw an SKS assault rifle lying on a kitchen chair. The police handcuffed Frentz, who was wearing only underwear and a t-shirt and was "sweating really bad." Frentz told the officers that motorcycle-riding Mexicans had broken into his house and that there was someone in his bed. There was no sign of anyone in Frentz's bed, or any struggle or forced entry, but the officers found Reynolds, lying face-up in the hallway in a pool of blood, on top of a loaded .22 caliber rifle.

He was dead, shot three times at close range. There were traces of Reynolds's DNA on Frentz's shirt. A bullet lodged near his spine was confirmed by forensic testing to have come from the SKS. There were four shell casings in the hallway of the same caliber as the SKS. There were three bullet-holes in the door Reynolds had been standing in front of when he was shot, and also several bullet-holes in Reynolds's bedroom window. More shell casings, of the same caliber, were nearby.

Frentz told several stories about the events of that morning. First, he told officers at the scene that he had been asleep in his bedroom when he heard a scuffle at the other end of the house. He said he had grabbed the .22, walked down the hallway, and seen two Hispanic men leaving the house through the back door. He said that he had had seen Reynolds fighting with a third over the SKS, had put the .22 down and grabbed the other man, and then had heard two gunshots. The Hispanic man then left with the other two in a sport utility vehicle. The men had gotten in through a window, Frentz said.

After he had been taken to the police station and mirandized, Frentz gave a substantially similar account, adding that before Frentz had gone to sleep, Reynolds had been playing cards and drinking beer with two young white men Frentz didn't know, that he had heard a motorcycle engine

876 F.3d 290

when the Hispanic men fled, and that someone had fired shots from outside the house that passed through the window and out the back door.

When interviewed by officers later that day, Frentz said that he had stopped drinking "cold turkey" on Saturday after thirty years, and had been given medication. He said that, in a conversation he had had with his mother on the phone the previous day, he had not told her mother he was hallucinating, but that he felt "fuzzy" from the medication. He said that Reynolds had been "just outside of his door" when he was shot, and that he remembered hearing three gunshots. He added that the 911 operator had told him to put pressure on Reynolds's bleeding wounds, that he had done so, and that he had loved Reynolds "like my boy."

The next morning, Frentz asked to speak with officers again. He told them that he had taken his medication the night before and that it had caused him hallucinations like it "was givin' [him] the DT's" instead of taking them away. He added that Reynolds had bought drugs that weekend from a person interested in his ex-girlfriend, Austin, and wondered whether that person might have altered the drugs and persuaded Reynolds to give him some. He denied, however, that his medication or any of the drugs he might have taken could have caused him to "just randomly start shootin' that rifle."

Frentz also spoke, while in county jail, with two other inmates, Troy Brackett and David Turner, both of whom, unfortunately for Frentz, ended up testifying at his trial. Brackett said that Frentz had told him two men, A. J. Guthrie and Eric Lloyd, had sold methamphetamine to Reynolds and then tried to steal it back. Reynolds had been accidentally shot in the struggle that followed. Brackett also said that later, Frentz told him that Reynolds and he had argued about the drugs purchased from Guthrie and Lloyd, who had originally bought the drugs from Woolsey, who was living with Austin. According to Brackett, Frentz said he had heard a noise that night and "played to his role" and shot Reynolds with the SKS. Frentz is also supposed to have said that Reynolds "shouldn't have been messing with [his] old lady."

Turner testified that Frentz told him he had come home on Sunday and found Reynolds with Guthrie and Lloyd, then gone to bed, after rejecting Reynolds's offer of methamphetamine. Later, Frentz got up and told Reynolds that it...