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New evidence didn’t support hearing on actual innocence, IAC claims

Glenn Patrick Bradford v. Richard Brown, 7th Circuit Court of Appeals No. 15-3706, 2016 WL 4136957, 8/4/16

In a state postconviction proceeding Bradford presented new evidence from an arson expert named Carpenter supporting Bradford’s claim that he couldn’t have set the fire that was the basis for his murder and arson conviction. After the state courts denied relief Bradford filed a federal habeas petition, asking for an evidentiary hearing on his claims of actual innocence and ineffective assistance of trial counsel. In a fact-depending ruling, the Seventh Circuit holds he isn’t entitled to a hearing.

Faced with “a request for an evidentiary hearing” to determine whether a convicted defendant should be given a chance to prove his innocence in a habeas corpus proceeding, “the District Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Schlup v. Delo, 513 U.S. 298, 331–32 (1995). Bradford had his chance [in the state postconviction proceeding] and failed to present reliable evidence that would establish his innocence of the arson and murder.

Changing course, Bradford argues that his trial counsel was ineffective in deciding to retain a fire expert named Barker Davie, who co-owned a fire-investigation business, attended training programs and wrote articles, and had testified many times as a fire and arson expert for the state—experience that gave him particular credibility as a defense witness. Although Bradford claims that Davie was not an expert on fire duration, there is no support for that claim. According to Bradford, Davie’s testimony that the fire lasted about 15 minutes (and definitely more than 9 minutes, so that Bradford could not have set it), though favorable to Bradford, was not convincing,…

The Indiana Court of Appeals can’t be said to have erred in holding that Bradford’s trial counsel did not render ineffective assistance to his client by selecting Davie as a witness. …. He was a qualified and well-regarded fire expert who offered a defensible though not definitive estimate of the fire’s duration. It was not a case in which counsel made no meaningful investigation or failed to present a defense expert on a critical issue. See, e.g., Thomas v. Clements, 789 F.3d 760, 768– 69 (7th Cir. 2015); Richey v. Bradshaw, 498 F.3d 344, 362–63 (6th Cir. 2007); Dugas v. Coplan, 428 F.3d 317, 328–34 (1st Cir. 2005).

(Slip op. at 9-10).

A dissenting judge (Hamilton) writes a lengthy, even more fact-intensive analysis that agrees with both of Bradford’s claims and concludes he should be given a new trial. (Slip op. at 12-37).

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