Dentrell Brown v. FRANK VANIHEL, Warden, Wabash Valley Correctional Facility

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2473 & 20-2474
DENTRELL BROWN ,
Petitioner-Appellee, Cross-Appellant,
v.
F RANK VANIHEL, Warden,
Wabash Valley Correctional Facility,
Respondent-Appellant, Cross-Appellee.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-1981-JMS-DML — Jane Magnus-Stinson, Judge.
____________________
A RGUED J UNE 17, 2021 — DECIDED A UGUST 5, 2021
____________________
Before SYKES , Chief Judge, and K ANNE and HAMILTON , Cir-
cuit 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;

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2 Nos. 20-2473 & 20-2474
petitioner Brown cross-appealed seeking an order barring
any retrial. While these appeals were pending, the State com-
plied with the writ, resulting in a state court order vacating
the original judgment of conviction. Brown has moved to dis-
miss 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) (affirm-
ing conviction and sentence). Brown sought but failed to win
post-conviction relief in the state courts for ineffective assis-
tance 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 eviden-
tiary 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 prob-
lem was a Bruton problem in Brown’s joint trial. See Bruton v.
United States, 391 U.S. 123 (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

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Nos. 20-2473 & 20-2474 3
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 or-
dered:
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 au-
thorize 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 prosecu-
tion’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 pro-
ceedings, 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

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4 Nos. 20-2473 & 20-2474
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 sen-
tence 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 con-
viction 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 juris-
diction 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 peti-
tioner; it does not act upon (such as vacate) a state court judg-
ment. 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
1 We are not persuaded by Brown’s second motion, which argued that
his physical move from the state prison to the county jail undermined ju-
risdiction under 28 U.S.C. § 2254(a). The § 2254(a) “in custody” require-
ment applies only when the petition is filed. Spencer v. Kemna, 523 U.S. 1,
7 (1998). We deny Brown’s first motion as moot.

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Nos. 20-2473 & 20-2474 5
corpus: release the prisoner or retry him. The Sixth Circuit
had affirmed in an earlier appeal and remanded with instruc-
tions 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 in-
dictment or criminal information. That limita-
tion, among other reasons, is why § 2254 peti-
tions come to us after a state prisoner is con-
victed 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 con-
viction 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 Ed-
dleman’s case came to an end.” Id. The district court therefore
did not have jurisdiction to grant the unconditional writ bar-
ring re-prosecution.

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6 Nos. 20-2473 & 20-2474
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 ex-
plained: “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 condi-
tional 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 un-
der 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 Arti-
cle 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 ‘fash-
ion some form of meaningful relief’ to the appellant in the

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Nos. 20-2473 & 20-2474 7
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 (1993) (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 va-
cate the disputed state conviction. Only a state court may do
that. Nor can federal courts reinstate state convictions. Fed-
eral 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 personal liberty;
when that right is denied and a person confined, the federal
court has the power to release him. Indeed, it has no other
power; it cannot revise the state court judgment; it can act
only on the body of the petitioner.” Fay v. Noia, 372 U.S. 391,
430–31 (1963) (citation omitted), abrogated on other grounds
by Coleman v. Thompson, 501 U.S. 722 (1991). See also In re Med-
ley, 134 U.S. 160, 173 (1890) (“But under the writ of habeas cor-
pus we cannot do anything else than discharge the prisoner
from the wrongful confinement in the penitentiary … .”) (em-
phasis omitted).2
If this court were to rule in favor of the State in this appeal
and conclude that the district court erred by granting the writ
of habeas corpus, there is no “meaningful relief” that we
2 Federal courts reviewing federal convictions can, of course, reinstate,
or instruct lower federal courts to reinstate, a vacated federal conviction.
United States v. Gochis, 256 F.3d 739, 747 (7th Cir. 2001) (reversing district
court’s vacatur of conviction and reinstating magistrate judge’s final judg-
ment); Moore v. United States, 865 F.2d 149, 154 (7th Cir. 1989) (reversing
district court’s grant of habeas corpus petition and vacatur of conviction
with instructions to reinstate).

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8 Nos. 20-2473 & 20-2474
could provide to the State. See, e.g., McCrory v. Donnellon,
2016 WL 894576, at *1–2 (E.D. Mich. Mar. 9, 2016) (finding any
claims concerning petitioner’s trial and sentencing moot be-
cause the relevant conviction and sentence had been reversed
by the state court, and petitioner was presently awaiting re-
trial in state court: “There is no additional relief that this
Court could grant.”). Cf. Edwards v. Terris, 2015 WL 1966672,
at *2 (E.D. Mich. Apr. 30, 2015) (dismissing as moot peti-
tioner’s claims because they were based on a since-vacated
disciplinary conviction). At best for the State here, this court
could issue an advisory opinion saying that the district court
had erred in issuing the writ with which the state courts had
already complied. By mentioning this possibility, we are not
suggesting any view on the merits here. But such an advisory
opinion would not be “meaningful relief.” Federal courts are
not in the business of offering advice to their colleagues in
state courts.
There were paths available to the State that could have
avoided this result, but the State chose not to take them. The
State could have sought a stay of the writ pending the conclu-
sion of the appeal before this court, and in the interim neither
initiated pretrial proceedings nor moved the state court to va-
cate the conviction in dispute. District and appellate courts
regularly grant such stays. See, e.g., Coulter v. McCann, 484
F.3d 459, 462 (7th Cir. 2007) (discussing sua sponte stay of dis-
trict court’s order directing that petitioner be released pend-
ing appeal); Lee v. McCaughtry, 892 F.2d 1318, 1319 n.2 (7th
Cir. 1990) (noting grant of stay pending appeal); Brinson v.
Vaughn, 339 F. App’x 171, 173 (3d Cir. 2009) (same).
The State points out that it was not guaranteed success in
seeking a stay. In our legal system, the lack of guaranteed

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Nos. 20-2473 & 20-2474 9
success is not a sound basis for excusing a party from at least
seeking relief. See, e.g., Greer v. United States, 141 S. Ct. 2090,
2099 (2021) (unpreserved claim subject to plain-error review
even if precedent foreclosed the claim at the time the defend-
ant could have objected); Fulks v. Watson, — F.4th —, —, 2021
WL 3027265, at *5–6 (7th Cir. 2021) (concluding that Fulks
could have raised his Atkins claim in his initial § 2255 motion
even though his chances of success were slim); Bourgeois v.
Watson, 977 F.3d 620, 636 (7th Cir. 2020) (concluding that noth-
ing formally prevented Bourgeois from raising earlier each of
the errors he sought to raise under § 2241, and that he was not
eligible for savings-clause relief).
In addition, the prospect of mootness is certainly some-
thing that federal courts should consider when deciding
whether to stay conditional writs pending appeal. See Garri-
son v. Hudson, 468 U.S. 1301, 1302 (1984) (staying order grant-
ing writ of habeas corpus where state’s certiorari petition to
review the grant could not be acted upon until after the sched-
uled date of retrial: “When … the normal course of appellate
review might otherwise cause the case to become moot, … is-
suance of a stay is warranted”) (citations and quotations omit-
ted). See generally Chafin v. Chafin, 568 U.S. 165, 178 (2013) (“If
these cases were to become moot upon return, courts would
be more likely to grant stays as a matter of course, to prevent
the loss of any right to appeal”; father’s appeal from district
court order directing return of his daughter to Scotland was
not rendered moot by mother’s return to Scotland with
daughter).
Under both § 2254 and Article III, we are concerned about
the following scenario in the absence of a stay. Suppose that
we deny Brown’s motions to dismiss and proceed with merits

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10 Nos. 20-2473 & 20-2474
briefing and argument on the State’s appeal. Then suppose
that while that appeal is pending, Brown is retried in state
court and acquitted. And then suppose that we decided that
the federal writ should not have issued. What relief should be
ordered in that scenario? We could not reinstate his original
conviction, which the state courts had vacated. The prospect
that the state courts might then disregard the new acquittal
and somehow reinstate his original conviction would pose a
very knotty problem. That problem is entirely avoidable if a
state in such a case seeks and obtains a stay before a new trial.
This court cannot reinstate Brown’s state court conviction;
we could at most advise the state court to do so. Because we
can grant no “meaningful relief” to the State, its appeal is
moot under Article III.
IV. The State’s Authorities
The State cited several Supreme Court decisions to oppose
dismissal. None apply here. In Eagles v. United States ex rel.
Samuels, 329 U.S. 304, 307–08 (1946), the Court concluded that
the district court’s grant of a writ of habeas corpus and Sam-
uels’ later release from military custody did not render the
appeal moot. But Samuels involved a release from custody on
conditions imposed by the writ. There was no vacatur of an
underlying conviction, as there was here. Samuels explains
why a stay of an otherwise unconditional release can prevent
an appeal from becoming moot, but it does not address the
problem here, where the underlying judgment of conviction
has been vacated without further conditions.
Two other cited cases do not apply here; both involved dis-
putes about only sentences. In both cases, the state-court con-
victions remained intact. In Mancusi v. Stubbs, 408 U.S. 204

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Nos. 20-2473 & 20-2474 11
(1972), Stubbs was convicted of a felony in New York and sen-
tenced as a second offender due to a prior Tennessee murder
conviction. He sought federal habeas corpus, claiming the
Tennessee conviction had violated his constitutional right to
confront witnesses against him and thus could not be used as
a predicate for a stiffer punishment. The district court denied
his petition for a writ, the court of appeals reversed, and the
state obeyed the appellate court’s mandate and resentenced
Stubbs. The Supreme Court concluded that the state’s compli-
ance with the mandate did not render the state’s appeal of the
grant of habeas corpus moot. Id. at 207. And in Kernan v.
Cuero, 138 S. Ct. 4, 7 (2017), the court of appeals had held that
the state court had made a mistake of federal law in sentenc-
ing Cuero and reversed and remanded the district court’s de-
nial of habeas relief. The state court, in light of the appellate
court’s mandate, resentenced Cuero, and the Supreme Court
held that the state’s compliance with the mandate did not ren-
der its appeal moot. Id. at 8.
It is clear from Samuels, Stubbs, and Cuero that compliance
with a federal court’s writ of habeas corpus with respect to
the petitioner’s sentence or custody does not render the com-
plying state’s appeal of that writ moot. However, none of
these cases dealt with a vacatur of the underlying conviction:
there was no conviction in Samuels (military custody), and the
underlying convictions remained intact in both Stubbs and
Cuero, which addressed only mootness following re-sentenc-
ing. These cases also do not save the State’s appeal from moot-
ness.
Both parties discuss Jensen v. Pollard, 924 F.3d 451 (7th Cir.
2019), and Hudson v. Lashbrook, 863 F.3d 652 (7th Cir. 2017).
We do not see either case as particularly helpful to either

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12 Nos. 20-2473 & 20-2474
party. In Jensen, the district court had ordered the petitioner
released or retried, and we had affirmed. See 924 F.3d at 452.
Then, in proceedings leading to the expected new trial, and
based on intervening developments in the law, the state con-
vinced the state courts to cancel the new trial and reinstate the
original conviction. Jensen turned to the federal district court
to challenge that reinstatement. This court concluded that the
federal courts had retained jurisdiction only to determine
compliance with the writ, that the state had complied with the
writ by initiating proceedings for retrial, and that federal
courts lacked jurisdiction to review the reinstated conviction.
The reinstatement amounted to an intervening judgment that
re-started the requirement to exhaust state court remedies. Id.
at 455–56 (“Jensen is free to challenge any perceived constitu-
tional errors via his direct appeal in state court. Indeed, he
must exhaust those remedies before raising any constitutional
claims in a new § 2254 petition.”). Jensen differs from this case
both because it involved an appeal after the execution of a con-
ditional writ and because that appeal was of an intervening
judgment. In this case, there is no longer any underlying state-
court judgment against Brown.
In Hudson, the district court had granted habeas relief and
ordered the state to reoffer a plea deal. 863 F.3d at 654. State
prosecutors complied with the writ, but the state judge re-
jected the deal. Hudson then filed a “motion to enforce” be-
fore the federal district court, which the district court denied.
Hudson appealed, and we dismissed for lack of jurisdiction
because Hudson had received all the relief he requested from
the writ of habeas corpus. Id. at 656. Hudson’s proper next
step was to pursue an appeal in the state courts. Id. Hudson
differs from this case because it involved reoffering a plea
deal, not vacating an underlying conviction. However, both

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Nos. 20-2473 & 20-2474 13
Jensen and Hudson provide some limited guidance: in both,
this court concluded that the state court, not the federal, was
the proper forum to pursue disputes about state-court deci-
sions made after the state complied with a federal writ of ha-
beas corpus. Similarly, here, the State’s compliance with the
writ, because it resulted in a vacatur of Brown’s conviction,
ended the federal courts’ jurisdiction over the state’s appeal
of the writ.
* * *
The State’s appeal, No. 20-2474, is DISMISSED as moot.
Brown’s motion to dismiss voluntarily his cross-appeal, No.
20-2473, is GRANTED. Brown’s motion to file a special appen-
dix in No. 20-2474 is DENIED.

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