author: HAMILTON, Circuit Judge. SYKES, Circuit Judge,

text:
    Dentrell BROWN, Petitioner-Appellant, v. Richard BROWN, Respondent-Appellee.
    No. 16-1014
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided February 1, 2017

      Michael Ausbrook, Attorney, Blooming-ton, IN, for Petitioner-Appellant.
    Stephen R. Creason, Henry A. Flores, Jr., Attorneys, Office of the Attorney General, Indianapolis, IN, for Respondent-Ap-pellee.
    Victoria L. Bailey, Attorney, Marion County Public Defender Agency, Indianapolis, IN, for Amicus Curiae Marion County Public Defender Agency.
    Brent L. Westerfeld, Attorney, Indianapolis, IN, for Amicus Curiae Indiana Public Defender Council.
    Before KANNE, SYKES, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Petitioner Dentrell Brown and his co-defendant Joshua Love were convicted of murder in a joint trial in an Indiana court. After exhausting state court remedies, Brown filed a federal habeas corpus petition under 28 U.S.C. § 2254. He claims he was denied effective assistance of counsel when his lawyer failed to insist that the judge give the limiting instruction required when evidence of a co-defendant’s out-of-court confession is introduced in a joint trial. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (protecting co-defendant from testimonial confessions of other co-defendants). The district court denied the habeas petition, finding that Brown had procedurally defaulted this claim for ineffective assistance of trial counsel by failing to assert it in state court so that federal review is barred. Brown has appealed.

On the issue of procedural default, we hold that the form of “cause” found in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and expanded in Trevino v. Thaler, 569 U.S.-, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), is available to federal habeas corpus petitioners in Indiana who have substantial claims for ineffective assistance of trial counsel that have been procedurally defaulted in state post-conviction proceedings by lack of any counsel or lack of effective counsel. Brown is entitled to an opportunity to overcome procedural default of his claim for ineffective assistance of trial counsel for failure to request a limiting instruction if he can both demonstrate ineffective assistance of post-conviction counsel and assert a substantial claim of ineffective assistance of trial counsel. We conclude that he is entitled to an evidentiary hearing.

I. Factual and Procedural Background

On appeal we review de novo district court rulings on petitions for habe-as relief and review any findings of fact for clear error. See Lisle v. Pierce, 832 F.3d 778, 781 (7th Cir. 2016); Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012). Those claims not adjudicated on the merits in the state court, like the one presented here, are also reviewed de novo. Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009); Warren v. Baenen, 712 F.3d 1090,1096,1098 (7th Cir. 2013).

A. The Murder Trial of Joshua Love and Dentrell Brown

In the early morning hours of March 8, 2008, in Elkhart, Indiana, Gerald Wenger was murdered after trying to buy drugs. He was discovered lying dead in the street around 2:00 a.m., with a single nine-millimeter bullet wound to his head. Two bullet casings were found near Wenger’s body, one from a nine-millimeter handgun and a second from a .45 caliber handgun. No physical evidence was recovered beyond the shell casings.,

Following the murder, investigators relied on information. from interviews with community members. After interviews provided the names of Joshua Love and Dent-rell Brown, investigators began to rely on information from incarcerated individuals. On June 18, 2008, the State charged Brown with murder.

Brown was then just thirteen years old, and Love was nineteen years old. Brown was waived into adult felony court, and the two were tried together. At trial, the State’s key evidence tying Brown to the crime scene was the testimony of Mario Morris. Morris testified that, while Morris, Brown, and Love were all in the Elkhart County Jail, Brown and Love each confessed separately to involvement in the murder. Testifying first to his conversation with Love, Morris said that Love confessed to trying to sell fake drugs to Wenger the night of the murder, and then, after the sale went bad, shooting Wenger in the head with a nine-millimeter handgun.

Morris then testified that Brown had told him a similar story, but with some important differences. For example, Morris testified that Brown said he had struck Wenger with the butt of a .45 caliber handgun, discharging one unintentional shot. A critical feature of Morris’s testimony for Bruton purposes was that his account of Love’s confession included no mention of Brown or anyone else having been present at the shooting, and his account of Brown’s confession included no mention of Love or anyone else having been present when Brown hit Wenger in the head.

After Morris testified, Brown and Love both moved for a mistrial based on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The trial judge denied both motions, emphasizing that at no time did Morris say Brown’s name when testifying against Love, nor did he say Love’s name when testifying against Brown. Both Love and Brown were convicted of murder, with Brown’s conviction based on a theory of accomplice liability. Brown was sentenced to 60 years in prison.

B. Direct & Collateral Review in the State Courts

On direct appeal, Brown’s counsel raised three claims, including that the trial court abused its discretion when it denied his Bruton motion for a mistrial. D.B. v. State (D.B. I), 916 N.E.2d 750, 2009 WL 3806084, at *1, 2-3 (Ind. App. 2009) (mem.). Brown’s appellate counsel argued that Morris’s testimony about Love’s statement violated Brown’s confrontation rights because Brown could neither compel Love to testify nor cross-examine him. Id. at *2. The appellate court was not persuaded. It found no Bruton violation because Morris’s account of Love’s confession to him never mentioned a third party present at the scene of the murder. Id. at *3.

Brown filed a petition for post-conviction relief in state court with the assistance of counsel. His post-conviction lawyer raised a single issue in the operative petition: ineffective assistance of trial counsel for having failed to move to sever Brown’s trial from Love’s. The argument relied on Bruton even though the appellate court on direct review had “specifically held” that there was no Bruton violation in Brown’s trial. The trial court denied relief, and the Indiana Court of Appeals affirmed, finding that the ineffective assistance of counsel claim was an attempt to revisit the Bruton issue decided against Brown on direct appeal and thus barred by res judicata. D.B. v. State (D.B. II), 976 N.E.2d 146, 2012 WL 4718965 at *2-3 (Ind. App. 2012) (mem.).

C. Brown’s Federal Habeas Petition

Brown’s habeas petition to the federal district court raised three issues, two of which have been dropped on appeal. The only claim before us is Brown’s claim that his “trial lawyer was ineffective for failing to request an instruction limiting the use of Love’s statement, offered through Morris, to Love.” Because it was not presented to the state courts, the claim for ineffective assistance of trial counsel would ordinarily be barred from federal review because of procedural default. In the district court, however, Brown argued that he should be given the opportunity to overcome that default under Martinez, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272, and Trevino, 569 U.S.-, 133 S.Ct. 1911, 185 L.Ed.2d 1044.

The district court held that Martinez and Trevino do not apply to § 2254 cases in Indiana, and thus Brown was not entitled to attempt to overcome procedural default on his claim for ineffective assistance of trial counsel. Brown v. Brown, No. 1:13-cv-1981-JMS-DKL, 2015 WL 1011371, at *2-3 (S.D. Ind. 2015). His request for an evidentiary hearing was denied and his petition dismissed. We granted Brown an expanded certificate of appealability that included this claim because Brown had “made a substantial showing of the denial of his right to effective assistance of trial counsel.”

II. Analysis

Brown’s claim for ineffective assistance of trial counsel requires a two-step analysis. We hold first that the Martinez-Trevino doctrine can apply to claims for ineffective assistance of counsel arising from the Indiana state courts. We next hold that Brown has offered some evidence of deficient performance by his post-conviction relief counsel and has asserted a substantial claim of ineffective assistance of trial counsel. We reverse and remand the case to the district court for an evidentiary hearing on both claims for ineffective assistance, first on the procedural default issue and then, if the default is excused, on the merits of the trial-based claim.

Before explaining our view on Martinez-Trevino, we pause to address the state’s assertion that petitioner’s argument on appeal has been forfeited. The state argues that in the federal district court, petitioner’s claims were based on the Confrontation Clause pursuant to Bruton rather than the Indiana Rules of Evidence. Under this theory, Brown’s claim of ineffective assistance of trial counsel for failure to request a limiting instruction based on the Indiana Rules of Evidence would be forfeited now on appeal. We disagree. Brown’s habeas petition claimed clearly that his “trial lawyer was ineffective for failing to request an instruction limiting the use of Love’s statement, offered through Morris, to Love.” The habeas petition discussed the failure to request the limiting instruction as something that should have occurred following the denial of the motion for a mistrial, and the federal district court evaluated Brown’s claim separately from the Confrontation Clause issue. Thus, petitioner’s specific claim— although not presented in the state courts — was not forfeited by any supposed failure to raise it in the federal district court. _

A. The Martinez-Trevino Doctrine Applies in Indiana

On appeal, petitioner argues that the rule established in Martinez and Trevino applies to § 2254 cases in Indiana so that he may try to overcome the procedural default of his claim for ineffective assistance of trial counsel. See Martinez, 132 S.Ct. 1309; Trevino, 133 S.Ct. 1911. We agree. We first explain the scope of the Martinez-Trevino doctrine. Against that backdrop, we then review the Indiana procedures for raising ineffective assistance of trial counsel, and we compare those procedures to those in other jurisdictions where the Martinez-Trevino doctrine applies. We find that Indiana procedures governing ineffective assistance of trial counsel claims fall into the category the Supreme Court addressed in Trevino.

1. The Martinez-Trevino Doctrine

A federal habeas petitioner’s claim is subject to the defense of procedural default if he does not fairly present his claim through a complete round of state-court review. Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014). A . prisoner can overcome procedural default by showing cause for the default and resulting prejudice, or by showing he is actually innocent of the offense. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Until recently, a federal petitioner could not overcome the federal bar on procedurally defaulted claims by proving ineffective assistance of post-conviction counsel because there is no constitutional right to post-conviction counsel. See id. at 752-53, 111 S.Ct. 2546.

In 2012, however, the Supreme Court recognized a new form of cause for overcoming procedural default in Martinez: “Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 132 S.Ct. at 1315, 1320. The Court explained that this route was needed to protect a prisoner with “a potentially legitimate claim of ineffective assistance of trial counsel” when state law required defendant to bring claim for ineffective assistance of trial counsel on collateral review. Id. If post-conviction counsel errs by failing, to raise a claim for ineffective assistance of trial counsel in the initial round of collateral review, it is unlikely that any state court at any level will hear the claim. Id. at 1316.

The next year, the Court expanded the Martinez form of “cause” in Trevino, holding that “a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.” Trevino, 133 S.Ct. at 1921. Examining Texas law, Trevino observed that even though Texas did not require a defendant to raise an ineffective assistance of trial counsel claim in state collateral review proceedings, the “structure and design of the Texas system in actual operation” worked effectively as a ban on claims on direct review. Id. at 1915. Like Texas, Indiana does not always require prisoners to bring claims for ineffective assistance of trial counsel on collateral review, so petitioner Brown must depend on the Trevino extension of Martinez to overcome procedural default.

In dissent in Trevino, Chief Justice Roberts predicted accurately á long process of state-by-state litigation on applying Trevino. Id. at 1923 (Roberts, C.J., dissenting). At least eight circuits, including this one, have decided whether Trevino applies to specific jurisdictions. This court applied the Martinez-Trevino doctrine to federal prisoners who bring motions for post-conviction relief under § 2255. Ramirez v. United States, 799 F.3d 845, 853 (7th Cir. 2015) (“[T]he federal courts have no established procedure ... to develop ineffective assistance claims for direct appeal,” so “the situation of a federal petitioner is the same as the one the Court described in Trevino.”); see also Coleman v. Goodwin, 833 F.3d 537, 543 (5th Cir. 2016) (Martinez-Trevino applies in Louisiana); Runningeagle v. Ryan, 825 F.3d 970, 981-82 (9th Cir. 2016) (Martinez-Trevino applies in Arizona); Woolbright v. Crews, 791 F.3d 628, 636 (6th Cir. 2015) (Martinez-Trevino applies in Kentucky); Fowler v. Joyner, 753 F.3d 446, 463 (4th Cir. 2014) (North Carolina procedures do “not fall neatly within Martinez or Trevino” and doctrine applies only in certain circumstances); Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014) (Martinez-Trevino applies in Tennessee); Sasser v. Hobbs, 735 F.3d 833, 852-53 (8th Cir. 2013) (Martinez-Trevino applies to capital defendants in Arkansas). Cf. Lee v. Corsini, 777 F.3d 46, 61 (1st Cir. 2015) (Martinez-Trevino does not apply in Massachusetts); Fairchild v. Trammell, 784 F.3d 702, 721 (10th Cir. 2015) (Martinez-Trevino does not apply in Oklahoma).

2. Claims for Ineffective Assistance of Trial Counsel in Indiana

With Trevino as our guide, two characteristics of Indiana practice — the “procédural design” and “systemic operation” — convince us that the Martinez-Trevino doctrine applies in Indiana. Trevino, 133 S.Ct. at 1921. First, while Indiana law does not always require claims for ineffective assistance of trial counsel to be brought on collateral review, the Indiana Supreme Court has adopted rules and doctrines that strongly discourage any other path. Second, in actual practice, the Indiana Supreme Court’s discouragement has worked to force almost all such claims to wait for collateral review.

a. Procedural Design

The Indiana Supreme Court acted to clear up the law governing claims for ineffective assistance of trial counsel in Woods v. State, 701 N.E.2d 1208 (Ind. 1998). After considering alternative approaches to procedural default, the court concluded “that the most satisfactory resolution of a variety of competing considerations is that ineffective assistance may be raised on direct appeal, but if it is not, it is available in postconviction proceedings irrespective of the nature of the issues claimed.” Id. at 1216. A claim for ineffective assistance of counsel is barred on collateral review if it was already raised on direct appeal. Id. at 1220. Critical for our purposes, presenting a claim for ineffective assistance is an all- or-nothing proposition in Indiana. A defendant may not present one specific ground on direct appeal and wait to present another on collateral review. Id.

The court in Woods explained that a claim for ineffective assistance of trial counsel will ordinarily require evidence beyond the record of the conviction and so should ordinarily be brought in a collateral post-conviction case where the defendant can offer new evidence. Id. at 1216. The complicating factor here — which shifts Indiana from Martinez to Trevino — is that Woods also recognized there may be an “exceptional case in which the defendant prefers to adjudicate a claim of ineffective assistance before direct appeal remedies have been exhausted.” Id. at 1219-20. Under these rare circumstances, Woods explained, a procedure known in Indiana as the Davis-Hatton procedure allows a convicted appellant to suspend or terminate his direct appeal to pursue a petition for post-conviction relief. Id. at 1219, citing Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977); Hatton v. State, 626 N.E.2d 442 (Ind. 1993); see also Ind. R. App. P. 37; Peaver v. State, 937 N.E.2d 896, 899 (Ind. App. 2010). The Davis-Hatton procedure might be appropriate if the trial record itself supports an indisputable claim of ineffective assistance of trial counsel that will result in the immediate release of a person who is in prison improperly.

If a trial court denies a Davis-Hatton petition, an appeal from that post-conviction denial and the original direct appeal will be consolidated but evaluated under separate standards of review. Peaver, 937 N.E.2d at 899-900; Slusher v. State, 823 N.E.2d 1219, 1222 (Ind. App. 2005); Dodd v. Knight, 533 F.Supp.2d 844, 852 (N.D. Ind. 2008). A defendant who uses the Davis-Hatton procedure will be barred from asserting any new claim for ineffective assistance on direct appeal, or in any of the consolidated proceedings or additional post-conviction proceedings that may follow. Peaver, 937 N.E.2d at 899. Most helpful for the issue we face here, the Indiana Supreme Court explained that the Davis-Hatton procedure is “not to be used as a routine matter in adjudicating the issue of trial counsel’s effectiveness.” Woods, 701 N.E.2d at 1220.

Like Texas in Trevino and Tennessee in Sutton, Indiana “permits defendants to raise the claims on direct appeal.” Compare Sutton, 745 F.3d at 791, quoting Trevino, 133 S.Ct. at 1918, with Woods, 701 N.E.2d at 1216, 1220. Because most claims for ineffective assistance of trial counsel cannot be shown within the four corners of the original trial court record, and because of the presumption of competence that applies in Indiana courts, claims for ineffective assistance of trial counsel brought on direct appeal “almost always fail.” Woods, 701 N.E.2d at 1216, quoting United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir. 1991). Trevino made much the same point about the need to present evidence outside the original trial record. 133 S.Ct. at 1918.

Additional aspects of Indiana procedure align with other aspects of Trevino. As in our federal cases, a defendant who asserts a claim for ineffective assistance of trial counsel on direct appeal may not relitigate the claim on collateral review. Compare Ramirez, 799 F.3d at 853, ■ with Woods, 701 N.E.2d at 1220. Like the federal rules we reviewed in Ramirez, Indiana’s rule is even more restrictive than the Texas procedures in Trevino. See Ramirez, 799 F.3d at 853. Also, Indiana does not allow counsel on direct appeal from a conviction to use a motion to correct errors to supplement the record to assert a claim for ineffective assistance. Compare Woods, 701 N.E.2d at 1216, with Trevino,, 133 S.Ct. at 1918 (determining that a motion for new trial is an inadequate vehicle for ineffective assistance of trial counsel claims).

Moreover, because a Davis-Hatton petition in Indiana is a collateral attack on a conviction, it does not provide, in the Trevino Court’s words, “meaningful review” of an ineffective assistance counsel claim on direct review: it simply is not direct review. See Trevino, 133 S.Ct. at 1919. Perhaps most important, the Davis-Hatton procedure is neither “systematic” nor “typical.” It is, in the words of Trevino, “special, limited, ... [and] rarely used.” Compare Woods, 701 N.E.2d at 1220, with Trevino, 133 S.Ct. at 1919-21. Amicus Indiana Public Defender Council tells us that between 2008 and 2012, its attorneys filed approximately 2000 appeals and only four Davis-Hatton petitions.

b. Systemic Operation

Indiana rules work together to make it unlikely that an Indiana defendant will be able to raise adequately on direct appeal a claim for ineffective assistance of trial counsel. The Indiana Supreme Court said as much in Woods: “As a practical matter,” the confluence of these rules “will likely deter all but the most confident appellants from asserting any claim of ineffectiveness on direct appeal.” 701 N.E.2d at 1220. As in Trevino itself, “special, rarely used procedural possibilities” like the Davis-Hatton procedure cannot overcome the Indiana courts’ directives that the preferred forum for ineffective assistance of trial counsel claims is post-conviction review. See Trevino, 133 S.Ct. at 1920.

The Indiana courts, like the Texas courts in Trevino, routinely direct defendants to bring claims for ineffective assistance of trial counsel on collateral review and warn against bringing them on direct review. Compare Woods, 701 N.E.2d at 1219-20 (“[A] postconviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim.”), with Trevino, 133 S.Ct. at 1919-20. The Indiana Supreme Court not only has reinforced the preference for collateral review but has gone so far as to decline addressing a defendant’s claim for ineffectiveness of trial counsel actually presented on direct appeal, believing it “preferable for the defendant to adjudicate his claim ... in a post-conviction relief proceeding.” McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999); see also Landis v. State, 749 N.E.2d 1130, 1132 (Ind. 2001).

The Indiana Court of Appeals has followed suit, routinely issuing non-prece-dential decisions that echo the lesson of Woods, especially when denying relief on direct appeal. E.g., Crockett v. State, 13 N.E.3d 556, 2014 WL 2202763, at *4 (Ind. App. 2014) (“[I]t is well-settled that a post-conviction proceeding is generally the preferred forum,” even if “a criminal defendant ... is at liberty to elect whether to present this claim on direct appeal or in post-conviction proceedings”); see also Johnson v. State, 46 N.E.3d 499, 2016 WL 327985, at *2 (Ind. App. 2016); Merriman v. State, 40 N.E.3d 1280, 2015 WL 5703912, at *5 n.3 (Ind. App. 2015); Beals v. State, 37 N.E.3d 977, 2015 WL 4105047, at *10 (Ind. App. 2015); Anderson v. State, 16 N.E.3d 488, 2014 WL 3511699, at *5 (Ind. App. 2014); Wine v. State, 9 N.E.3d 771, 2014 WL 1266285, at *3 (Ind. App. 2014); Reed v. State, 985 N.E.2d 1151, 2013 WL 1701879, at *3 (Ind. App. 2013).

Like the Texas bar in Trevino, the Indiana criminal defense bar “has taken this strong judicial advice seriously.” See Trevino, 133 S.Ct. at 1920. In its annual training, amicus Indiana Public Defender Council “consistently advises against appellate counsel presenting ineffective assistance claims on direct appeal.” When a public defender handling a direct appeal asked the Council if she should raise a claim for ineffective assistance of trial counsel in the direct appeal, the responses were best summarized by one that began, “NOOOOOOÜ!” Amicus Br. of Ind. Pub. Def. at 21a.

For these reasons, in the language of Trevino, “as a matter of its structure, design, and operation,” the Indiana procedural system “does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal.” Trevino, 133 S.Ct. at 1921. The Martinez-Trevino form of cause to excuse procedural default is available to Indiana defendants who seek federal habe-as relief.

B. Cause Under Martinez

In a state like Indiana where the Martinez-Trevino doctrine can apply, procedural default in the state courts will not bar federal habeas review when a petitioner can demonstrate cause for the default. See Trevino, 133 S.Ct. at 1918; Martinez, 132 S.Ct. at 1318; Coleman, 501 U.S. at 747-48, 111 S.Ct. 2546. To demonstrate cause under Martinez-Trevino, the petitioner must show deficient performance by counsel on collateral review as required under the first prong of the Strickland analysis. Martinez, 132 S.Ct. at 1318; see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Actual resulting prejudice can be established with a substantial claim of ineffective assistance of trial counsel that would otherwise have been deemed defaulted. See Detrich v. Ryan, 740 F.3d 1237, 1245-46 (9th Cir. 2013) (observing that this reading is required to square the requirement with the structure of Martinez). Accordingly, to avoid procedural default, petitioner Brown must demonstrate that his collateral review counsel was deficient and must make a substantial claim of ineffective assistance of trial counsel. See Trevino, 133 S.Ct. at 1918, citing Martinez, 132 S.Ct. at 1318-19, 1320-21. Petitioner Brown has made a strong enough showing of each element to call for an evidentiary hearing in the district court.

1. Ineffective Assistance of Post-Conviction Relief Counsel

Brown claims that his lawyer in his post-conviction case was deficient because she did not raise a claim that his trial counsel was ineffective for failing to request a limiting instruction. To demonstrate that counsel’s performance was deficient, the petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Judicial review of counsel’s performance is “highly deferential,” with “every effort ... made to eliminate the distorting effects of hindsight.” Id. at 689,104 S.Ct. 2052.

The State has not directly addressed whether Brown’s collateral review lawyer was ineffective. On this record, and without having heard yet from the post-conviction attorney, we find that petitioner Brown has offered evidence that his post-conviction counsel’s representation fell below an objective standard of reasonableness so that he is entitled to an evidentiary hearing on the issue.

The amended complaint on collateral review made a single allegation of error: trial counsel had been ineffective “for failing to move for a severance of his trial from Petitioner’s codefendant” as a remedy for a Bruton violation. The problem with this claim, as the post-conviction courts held, was that on his direct appeal Brown had already argued the joint trial produced a Bruton violation. The state courts rejected that claim, squarely and definitively. Even if we account for the benefits of hindsight, a new claim built on the assumption of a Bruton violation would seem to have had little or no chance of success.

We recognize that the vast majority of claims for post-conviction relief are without merit, so an attorney’s failure to prevail, or even pursuit of an unpromising claim, does not show ineffective assistance. Also, the Supreme Court’s fundamental point in Strickland about avoiding the distorting effects of hindsight applies as much in the post-conviction process as in any other. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. A post-conviction attorney can and should use professional judgment in selecting which claims and issues to raise, just as we expect from attorneys in direct appeals. See Morris v. Bartow, 832 F.3d 705, 709-11 (7th Cir. 2016) (finding counsel’s performance competent despite mixed record indicating possible coerced plea); Vinyard v. United States, 804 F.3d 1218, 1225-27 (7th Cir. 2015) (Strickland not applied unreasonably; counsel advised client not to challenge guilty plea); Makiel v. Butler, 782 F.3d 882, 898-902 (7th Cir. 2015) {Strickland not applied unreasonably; counsel selected issues for appeal and did not include an additional obvious claim).

For purposes of applying Martinez and Trevino, the approach we take to claims of ineffective assistance of counsel on direct appeal provides the best available guide. Pursuit of unsuccessful arguments and claims does not show ineffective assistance of counsel. But we may compare the claims actually presented to those that might have been presented. Where counsel chose to pursue just one issue that was a virtually certain loser, as in Shaw v. Wilson, a petitioner may show deficient performance by showing that a much stronger claim or argument was available. 721 F.3d 908, 915 (7th Cir. 2013); see also Vinyard, 804 F.3d at 1228; Makiel, 782 F.3d at 898-99.

Even without relying on the benefits of hindsight, petitioner Brown makes a strong argument here that the one claim counsel pursued in the post-conviction petition was doomed from the beginning. The claim that counsel was ineffective by failing to move to sever Brown’s trial from Love’s appears to have been built on the assumption that the joint trial resulted in a Bruton violation. The state courts had already rejected that premise on direct appeal.

Petitioner argues that a viable ineffective assistance of trial counsel claim could have been premised on failure to seek a limiting instruction as to the hearsay Morris offered when testifying to his conversation with Love. See Ind. R. Evid. 801(c) (defining hearsay), 802 (making hearsay inadmissible), and 105 (providing a limiting instruction when evidence is presented that is “admissible against a party or for a purpose — but not against another party or for another purpose”). In contrast, the claim post-conviction review counsel presented instead was barred by res judicata. We do not mean to imply that we have reached a conclusion on the ultimate question of counsel’s performance. As noted, no court has heard testimony from Brown’s post-conviction counsel about the selection of issues and other factors that may affect the performance issue under Strickland. By showing that another, much stronger claim was available, however, petitioner has shown he is entitled to an evidentiary hearing on that issue.

2. Substantial Underlying Claim for Ineffective Assistance of Trial Counsel

Martinez also requires a petitioner to show “that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. at 1318— 19. Martinez offered little guidance as to what is a “substantial” claim for these purposes. It provided only a “cf.” citation to Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), describing the standards for certificates of appealability. 132 S.Ct. at 1319. Miller-El held that a certificate of appealability should be granted when a substantial showing can be made “by demonstrating that jurists of reason could disagree with the district court’s resolution ... or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration.” Id. at 336, 123 S.Ct. 1029.

The Martinez dissent predicted the problem we face here: “to establish cause a prisoner must demonstrate that the ineffective-assistance-of-trial-counsel claim is ‘substantial,’ which apparently means the claim has at least some merit. ... The Court does not explain where this substan-tiality standard comes from.” Martinez, 132 S.Ct. at 1322 n.2 (Scalia, J., dissenting). Appellate opinions applying Martinez and Trevino thus far offer limited further guidance. See Ramirez, 799 F.3d at 854-56 (concluding that there was “some merit” to Ramirez’s argument without delving further into the standard). See also Running-eagle, 825 F.3d at 983 (deciding case on other grounds); Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir. 2012) (same); Flores v. Stephens, 794 F.3d 494, 505 (5th Cir. 2015) (concluding “that reasonable jurists would not debate the district court’s decision ... because the claims are not ‘substantial’ within the meaning of Martinez”); Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (applying standard for certificate of appealability); Detrich, 740 F.3d at 1245 (citing Miller-El standard); Cook v. Ryan, 688 F.3d 598, 610 n.13 (9th Cir. 2012) (observing that Martinez used Miller-El as “generally analogous support”).

In this case, petitioner argues that by granting a certificate of appealability, we have already determined that his defaulted ineffective assistance of trial counsel claim is substantial under Martinez. The State simply repeats that a “substantial claim is one that has ‘some merit,’ ” then argues that petitioner cannot satisfy cause and prejudice under Strickland. We conduct a separate and deeper review of the record, beyond our grant of a certificate of appeal-ability, and find a substantial ineffective assistance of trial counsel claim under Martinez.

We are guided by Strickland’s two-prong approach to claims of ineffective assistance of counsel. Brown must address whether his trial counsel’s performance was deficient, falling below an objective standard of reasonableness. He must also address whether the ineffective assistance caused actual prejudice. Strickland, 466 U.S. at 687-88, 691-92, 104 S.Ct. 2052. Substantiality is a threshold inquiry; full consideration of the merits is not required. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029.

a. Substantial Showing of Trial Counsel’s Deficient Performance

At trial, the State relied heavily on the testimony of Mario Morris to place both Love and Brown at the scene of the murder. Morris testified to separate conversations he had in the Elkhart County Jail, one with Love and others with Brown. Without his testimony, only circumstantial evidence and one other reluctant witness implicated Brown.

Morris first testified to a conversation he had in Elkhart County Jail with Love. Like many of the witnesses called by the State, Morris suffered from credibility issues. He claimed that over a card game in jail, Love admitted he was involved in the murder of Wenger. According to Morris, Love told'him that he had left a woman’s apartment at the Middlebury Apartments to sell a “gang pack” (something that appears to be crack cocaine but is not) to a “white guy, Mr. Wenger.” Love then told Morris he got in the back seat of a truck with Wenger in the driver’s seat, and drove around a few blocks. Once Wenger figured out the drugs were fake, an argument ensued. Both men got out of the truck. Love then shot Wenger with a nine-millimeter handgun. Afterwards, he got back into the truck and pulled off to park behind some houses. Love came back later to wipe down any fingerprints he might have left on the truck.

Immediately after describing Love’s tale for the jury, Morris testified that he had a separate conversation with Brown, also in the jail, who Morris said told a story very similar to Love’s. Morris testified that Brown told him that he left a woman’s apartment at the Middlebury Apartments on the night of the murder. He was going to try to sell some fake drugs. Morris was asked by the prosecutor, “And did they actually try to sell him those gang packs?” (emphasis added). Morris responded, ‘Tes, sir.”

Then, Morris testified, Brown told him that he had gotten out of the truck and hit Wenger on- the head with his .45 caliber handgun. The blow caused the gun to fire. Brown then got in the truck and drove to an alley behind some houses. During deliberations, the jury requested to review Morris’s testimony. It was read back to them in the courtroom.

Morris’s testimony as to his conversation with Love, although admissible against Love, was inadmissible hearsay as offered against Brown. As petitioner’s brief emphasizes, “like perhaps all jurisdictions, Indiana courts assume that jurors follow their instructions.” If Brown’s trial attorney had requested the limiting instruction to which Brown was probably entitled, it would have left the prosecution to rely on the arguably weak remainder of its case against Brown.

We are not convinced, on the limited record before us, that the decision not to seek a limiting instruction was objectively reasonable. Without the testimony of Morris’s conversation with Love, which mirrored so closely the testimony of Morris’s conversation with Brown, none of the evidence presented by the prosecution puts Brown at the murder scene with Love.

b. Substantial Showing of Prejudice

The additional evidence against Brown was not so strong that his claim of actual prejudice is not substantial for purposes of Martinez and Trevino. The State relies primarily on the testimony of Kendrick Lipkins, who at trial was treated as a witness hostile to the prosecution. He responded only reluctantly with a single word, “Correct,” to a leading question regarding ■ an overheard confession by Brown. Lipkins also testified that he had a separate conversation in a car with Love, in Brown’s presence, about the disposal of a .45 caliber handgun. But Lipkins, like most of the State’s witnesses, had serious credibility issues. He admitted to being interested in a reward offered for information on the case, and he was willing to cooperate with police in order to keep his brother, T.J. Lipkins, out of jail.

The remaining evidence against Brown was circumstantial and not conclusive. A witness testified that a few weeks before the shooting she saw Brown with what she thought was a gun. Another witness testified that she saw both Love and Brown around 10:30 p.m. the night of the shoot-mg. That was over three hours before Wenger was found, and she had a difficult time identifying Brown. A man testified that he saw two boys walking by Wenger’s truck the morning after the shooting, but he could neither identify Brown nor say what the two boys were doing. Two witnesses testified that Brown was trying to sell a nine-millimeter handgun in the weeks following the shooting. One of those witnesses testified that when Brown was asked whether he murdered someone with the gun, he laughed. Although at least sixteen fingerprints were pulled from the truck, they were all Wenger’s. No guns were recovered, but one .45 casing and one nine-millimeter casing were found at the crime scene. Bullet fragments found in Wenger’s body were from a single nine-millimeter bullet. The evidence was legally sufficient to permit a jury to convict Brown, but Brown has made a substantial claim of deficient trial counsel and resulting prejudice. His claim for ineffective assistance of trial counsel is not “wholly without factual support,” or lacking in all legal merit. Martinez, 132 S.Ct. at 1319. If Brown’s theory is proven at an evidentiary hearing, he will have made a successful ineffective assistance of trial counsel claim. On the record before us, reasonable jurists “could disagree ... or ... conclude the issues presented” in petitioner’s brief and borne out in the trial transcript “are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Brown has presented a substantial claim of ineffective assistance of trial counsel, sufficient to avoid the procedural default because he has demonstrated that the claim has some merit. See Martinez, 132 S.Ct. at 1318-19.

In sum, the Martinez-Trevino doctrine applies to Indiana procedures governing ineffective assistance of trial counsel claims. Petitioner Brown has presented evidence of ineffective post-conviction counsel and made a substantial claim of ineffective assistance of trial counsel. Accordingly, we REVERSE the district court’s dismissal of Brown’s petition and REMAND to the district court for an evi-dentiary hearing on the issue of ineffective assistance of post-conviction counsel. If the district court finds deficient performance by post-conviction counsel, Brown’s default will be excused, and he will be entitled to an evidentiary hearing on the merits in the district court for the underlying claim of ineffective assistance of trial counsel for failure to request a limiting instruction.

SYKES, Circuit Judge,

dissenting.

“Federalism and comity principles pervade federal habeas jurisprudence.” Johnson v. Foster, 786 F.3d 501, 504 (7th Cir. 2015). “One of these principles is that ‘in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner’s federal rights.’ ” Id. (quoting Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). The doctrine of procedural default enforces this principle: A federal court will not hear a state prisoner’s habeas claim unless the prisoner has first presented it to the state courts for one full round of review. Id. (citing Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014)).

Requiring state prisoners to exhaust state remedies serves important federalism interests. The “state courts are the principal forum for asserting constitutional challenges to state convictions,” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), and federal habeas review “frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights,” Calderon v. Thompson, 523 U.S. 538, 555-56, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (internal quotation marks omitted). Federal habeas review of state convictions disturbs the State’s “significant interest in repose for concluded litigation ... and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” Richter, 562 U.S. at 103, 131 S.Ct. 770 (quotation marks omitted). Accordingly, “[fjederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.” Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

The deferential standard of review adopted in the Anti-terrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2254(d), protects these state interests. So does the exhaustion requirement. For this reason, a federal court may review a defaulted claim only in very limited circumstances. The court may excuse a procedural default only if the prisoner (1) demonstrates cause for the default and consequent prejudice or (2) makes a convincing showing of actual innocence, thus establishing that the failure to review the defaulted claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50, 111 S.Ct. 2546; Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 2016).

“Cause” is an objective factor external to the defense that impedes the presentation of the claim to the state courts. Coleman, 501 U.S. at 753, 111 S.Ct. 2546; Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). Attorney error ordinarily doesn’t satisfy the externality requirement because the defendant’s attorney is his agent and the attorney’s actions are imputed to his principal. Coleman, 501 U.S. at 753, 111 S.Ct. 2546. But attorney error can excuse a procedural default if the error “is an independent constitutional violation,” i.e., a denial of the Sixth Amendment right to the effective assistance of counsel. Id. at 755, 111 S.Ct. 2546. In that situation, the risk of error falls on the State as a corollary to its constitutional duty to provide effective counsel. Id. at 754, 111 S.Ct. 2546. It follows, then, that because there is no Sixth Amendment right to counsel on collateral review, attorney negligence at that stage is not cause to excuse a procedural default. Id. at 755, 111 S.Ct. 2546.

As my colleagues explain, in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), the Supreme Court recognized a narrow exception to the Coleman rule. Luis Martinez, an Arizona prisoner, alleged in his federal habeas petition that his trial counsel was constitutionally ineffective in violation of the rule articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He had counsel for his initial collateral-review proceeding, but his attorney did not present this claim to the state courts. Martinez, 132 S.Ct. at 1314. Under Arizona law a claim of ineffective assistance of trial counsel cannot be raised on direct appeal; it must be presented in an initial collateral-review proceeding. Id. The Court held that this procedural requirement of Arizona law warranted an equitable exception to the Coleman rule that an error by posteonviction counsel is not cause to excuse a procedural default. Id. at 1315.

The Court held that if state law requires a prisoner to bring a Strickland claim on collateral review, a default at that stage of the criminal process does not preclude federal habeas review if “there was no counsel or counsel in that proceeding was ineffective.” Id. at 1320. To be eligible for federal review, however, the defaulted Strickland claim must be “a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id. at 1318. The Court remanded Martinez’s case, directing the lower courts to determine whether his state postconviction counsel was constitutionally ineffective, and if so, whether the underlying claim for ineffective assistance of trial counsel was “substantial.” Id. at 1321.

The Court expanded the Martinez exception in Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), making it available to prisoners in states that, though not expressly restricting Strickland claims to collateral review, nonetheless have procedural rules that foreclose the opportunity to develop the factual record necessary to effectively litigate the claim on direct review. Carlos Trevino was a Texas prisoner sentenced to death for murder. He alleged in his federal habeas petition that his trial counsel was ineffective for failing to adequately investigate and present mitigating circumstances in the penalty phase of his trial. Id. at 1915. The state trial judge had appointed new counsel for Trevino’s direct appeal, but the attorney did not raise this claim. The judge appointed still another attorney for collateral review; that attorney too failed to raise the claim.

Martinez could not help Trevino. Unlike Arizona, Texas does not expressly require prisoners to reserve Strickland claims for collateral review. Id. at 1918. But the state’s procedural rules make it “all but impossible” to raise such a claim on direct appeal. Id. at 1920. That’s because a claim of ineffective assistance of trial counsel almost always requires development of a factual record, but the time constraints imposed by Texas law (most notably, the time for preparation of the transcript) eliminate the opportunity to make the necessary record in conjunction with a direct appeal. Id. at 1918. That is, under the procedural rules in place in Texas, it’s “ ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim’ on direct appeal.” Id. (quoting Robinson v. State, 16 S.W.3d 808; 810-11 (Tex. Crim. App. 2000)). For this reason the Texas Court of Criminal Appeals — the state’s highest criminal tribunal — “has explicitly stated that ‘[a]s a general rule’ the defendant ‘should not raise an issue of ineffective assistance of counsel on direct appeal,’ but rather in collateral review proceedings.” Id. at 1920 (quoting Mata v. State, 226 S.W.3d 425, 430, n.14 (Tex. Crim. App. 2007)).

These two features of Texas law — a procedural system that makes it virtually impossible to effectively litigate a Strickland claim on direct review and an affirmative judicial directive not to do so — put Trevino in much the same position as Martinez. The Court concluded that the “procedural design and systemic operation” of the criminal appeal process in Texas was the functional equivalent of Arizona’s rule barring Strickland claims on direct review. Id. at 1921 (“[A] distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.”). So the Court extended the Martinez exception to prisoners in Texas and other states where the “procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of counsel on direct appeal.” Id.

My colleagues conclude that Indiana is enough like Texas to warrant extending Martinez-Trevino to defaulted Strickland claims in habeas petitions brought by Indiana prisoners. I disagree. Indiana does not by procedural rule make it virtually impossible to litigate a Strickland claim on direct appeal. To the contrary, Indiana explicitly provides a process for doing so: the so-called Davis/Hatton procedure, which “allows a defendant to suspend the direct appeal to pursue an immediate petition for postconviction relief’ in order to develop the factual record necessary to support a Strickland claim at the direct-appeal stage. Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998). The Indiana Supreme Court specifically reaffirmed the vitality of the Davis/Hatton procedure in Woods. Id. at 1219-20.

Nor has Indiana’s highest tribunal gone as far as the Texas Court of Criminal Appeals, which specifically directed defendants not to raise these claims on direct review. In Woods — the seminal case on this subject — the Indiana Supreme Court explained that although collateral review is “normally the preferred forum” for a claim of ineffectiveness assistance of trial counsel, direct review remains an appropriate and workable option in light of the Davis/Hatton procedure. Id. at 1219.

Here, in full, is the key passage in the state high court’s opinion:

For the reasons outlined, a postconviction hearing is normally- the preferred forum to adjudicate an ineffectiveness . claim. We nonetheless agree that potential for administrative inconvenience does not always outweigh the costs of putting off until tomorrow what can. be done today: “If there is no reason for delay in presenting a claim, the delay should not be countenanced, for there is a considerable social interest in the finality of criminal proceedings.” [U.S. v.] Taglia, 922 F.2d [413,] 418 [(7th Cir. 1991) ]. If we are dealing with an improperly incarcerated defendant, the cause of justice is plainly better served by making that determination as soon as possible. The same is true even if a retrial is required. Resolving record-based ineffectiveness claims on direct review also has some doctrinal appeal because it is more consistent with the residual purpose of postconviction proceedings. Langley [v. State], [256 Ind. 199] 267 N.E.2d [538,] 541 [ (Ind. 1971) ] (“[T]he permissible scope of review on direct appeal is well defined and broader than that permitted by collateral attack through post conviction relief.”). These considerations can be largely met under a procedure that allows a defendant to suspend the direct appeal to pursue an immediate petition for postconviction relief. Davis v. State, [267 Ind. 152] 368 N.E.2d 1149 (1977); see also Hatton v. State, 626 N.E.2d 442 (Ind. 1993) (reiterating vitality ' of Davis. procedure). This should cover the exceptional case in which the defendant prefers to adjudicate a claim of ineffective assistance before direct appeal remedies have been exhausted. Because of the Davis procedure, the direct appeal is not necessarily an obstacle to speedy adjudication of the adequacy of the representation, as recent cases in which the procedure was invoked for that purpose demonstrate. See Coleman v. State, 694 N.E.2d 269 (Ind. 1998); Brown v. State, 691 N.E.2d 438 (Ind. 1998). Although not to be used as a routine matter in adjudicating the issue of trial counsel’s effectiveness, a Davis request may be appropriate “where the claim asserted arguably requires a certain level of fact finding not suitable for an appellate court.” Lee v. State, 694 N.E.2d 719, 721 n.6 (Ind. 1998), petition for cert. filed, [525 U.S. 1023, 119 S.Ct. 554, 142 L.Ed.2d 461] ( [ ]1998) [ ]).

Id. at 1219-20 (footnote omitted).

The state supreme court went on to fashion a rule against claim splitting, holding that all allegations of trial counsel’s ineffectiveness must be consolidated in a single proceeding. More specifically, the court said that “[t]he specific contentions supporting the claim ... may not be divided between the two proceedings.” Id. at 1220. It’s a strong rule of preclusion; if the defendant raises the issue on direct review, he may not do so again in collateral proceedings. Id. The court acknowledged the likelihood that this “all or nothing” requirement would channel many Strickland claims to collateral review: “Ás a practical matter, this rule will likely deter all but the most confident appellants from asserting any claim of ineffectiveness on direct appeal. It will certainly deter some.” Id. Still, the court held — unequivocally— that “concerns for prompt resolution of claims lead us to permit ineffective assistance to be raised [on direct appeal] within or without the procedure available pursuant to Davis.” Id.

So Indiana offers defendants a true choice — direct appeal or collateral review — and either forum is a proeedurally viable option for adjudicating a Strickland claim. Indeed, Woods was explicit on this point. “The defendant must decide the forum for adjudication of the issue — direct appeal or collateral review.” Id. In sharp contrast to Texas, both options are fully open in Indiana, and the state provides a meaningful opportunity to litigate the issue at either stage. This takes Indiana outside the rule and rationale of Trevino.

My colleagues focus on the state high court’s strong preference for reserving Strickland claims for collateral review, a preference apparently reinforced by the lower courts and generally followed by the criminal defense bar. Majority Op. at pp. 511-13. That’s not enough to bring Indiana within the ambit of Trevino. The Supreme Court justified extending Martinez to Texas prisoners primarily because that state’s procedural rules make it virtually impossible to effectively raise a Strickland claim on direct appeal. Trevino, 133 S.Ct. at 1918-19. These procedural barriers, in turn, have led Texas courts to admonish defendants not to bring these claims on direct review. It’s true that the Court spent several paragraphs discussing this “strong judicial advice.” Id. at 1920. But the advice of the Texas judiciary played only a supporting role in the Court’s decision; it certainly wasn’t sufficient on its own to support the expansion of Martinez.

Moreover, unlike the Texas Court of Criminal Appeals, the Indiana Supreme Court has not directed defendants to refrain from bringing claims of trial counsel’s ineffectiveness on direct review; it has said, rather, that collateral review is “normally the preferred forum” for these claims. Woods, 701 N.E.2d at 1219. Indeed, as the passage quoted above makes clear, one of the main points of the court’s decision in Woods was to preserve the direct-review option and highlight the availability of the Davis/Hatton procedure for defendants who are concerned about delay but need to make a factual record before bringing a Strickland claim on direct review.

In short, my colleagues’ decision is not so much an-application of Trevino as an unwarranted expansion of it. This has real consequences for criminal litigation in Indiana, for federal habeas review of Indiana convictions, and ultimately for the relationship between the federal and state courts. It is by now canonical that federal habeas review of state convictions is extremely deferential. Under AEDPA the state court’s factual findings are presumed to be correct, § 2254(e)(1), and a federal court may not grant habeas relief unless the state court’s adjudication of a federal claim was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, § 2254(d). As the petitioner’s counsel acknowledged in oral argument, Martinez-Trevino creates a moral hazard in the state postconviction process, even where by its terms the doctrine clearly applies. If a prisoner complies with the exhaustion requirement and presents his Strickland claim to the state courts, AEDPA’s highly deferential standard of review applies. If instead he defaults the claim and the Martinez-Trevino exception applies, the Strickland claim gets plenary review in federal court. Given these perverse incentives, we should be wary of expanding the doctrine beyond the limits of its rationale.

As a result of today’s decision, the Indiana district courts will be deluged with defaulted Strickland claims. It is an unfortunate reality in postconviction litigation that ordinary claims of trial error can be easily repackaged as claims of ineffective assistance of trial counsel. Now that Indiana prisoners may use Martinez-Trevino, Indiana district judges will routinely have to contend with the two gateway questions that unlock the door to plenary review of defaulted Strickland claims. A federal judge will have to decide — de novo — whether the prisoner’s postconviction counsel was ineffective, and if so, whether the underlying Strickland claim is substantial. An affirmative answer means full federal review of the defaulted claim unburdened by AEDPA’s deferential standard of review.

This is a serious intrusion on federalism interests. I return to where I started: The “state courts are the principal forum for asserting constitutional challenges to state convictions.” Richter, 562 U.S. at 103, 131 S.Ct. 770. That will no longer be true in Indiana for at least some Strickland claims. After today’s decision, the federal courts, not the state courts, will be the primary forum for more constitutional challenges to state convictions. That result would be unavoidable if Martinez and Trevino inescapably applied. But they do not inescapably apply. I respectfully dissent.

      . On two occasions, we have also observed that the Martinez-Trevino exception does not apply to the procedures that govern the typical ineffective assistance of trial counsel claim in Wisconsin courts. See Ramirez v. United States, 799 F.3d 845, 851 (7th Cir. 2015) ("Wisconsin law treats postconviction relief in an unusual way, insofar as it allows defendants to raise a claim of ineffectiveness of counsel simultaneously with a direct appeal.”); Nash v. Hepp, 740 F.3d 1075, 1079 (7th Cir. 2014) ("Wisconsin law expressly allows — indeed, in most cases requires — defendants to raise claims of ineffective assistance of trial counsel as part of a consolidated and counseled direct appeal, and provides an opportunity to develop an expanded record."). Our analysis here does not alter that analysis of Wisconsin law.

      . On this issue; we respectfully disagree with both the district court here and the Northern District of Indiana in Brown v. Superintendent, 996 F.Supp.2d 704, 716-17 (N.D. Ind. 2014).


source: Caselaw Access Project

author: HAMILTON, Circuit Judge.

license: Public Domain

text:
    Richard DOERMER, both individually and derivatively on behalf of the Doermer Family Foundation, Inc., Plaintiff-Appellant, v. Kathryn CALLEN, et al., Defendants-Appellees.
    No. 15-3734
    United States Court of Appeals, Seventh Circuit.
    Argued December 9, 2016
    Decided February 1, 2017

      Richard M. Goldwasser, Attorney, Schoenberg, Finkel, Newman & Rosenberg, Dom J. Rizzi, (argued) Attorney, Cafferty Clobes Meriwether & Sprengel LLP, Chicago, IL, for Plaintiff-Appellant.
    James P. Fenton, Attorney, Eilbacher Fletcher, Fort Wayne, IN, for Defendants-Appellees Kathryn D. Callen, Phyllis Alberts, John M. Callen.
    John R. Burns, III, Attorney, Fort Wayne, IN, Larry E. LaTarte, Attorney, Minneapolis, MN, Brian James Paul, (argued) Attorney, Daniel R. Roy, Attorney, Indianapolis, IN, Faegre Baker Daniels LLP, for Defendant-Appellee Doermer Family Foundation, Incorporated.
    William A. Ramsey, Attorney, Rachel Steinhofer, Barrett & McNagny LLP, Fort Wayne, IN, for Defendant-Appellee University of Saint Francis of Fort Wayne, Indiana, Incorporated.
    Before WILLIAMS and HAMILTON, Circuit Judges, and CHANG, District Judge.

       The Honorable Edmond E. Chang, United States District Judge for the Northern District of Illinois, sitting by designation.

   HAMILTON, Circuit Judge.

This case poses several questions under the Indiana Nonprofit Corporation Act of 1991 about the governance of nonprofit corporations in Indiana. The case pits brother against sister in a long-running dispute over control of a small family foundation established by their parents. Plaintiff Richard Doermer is a member of the board of directors of the Doermer Family Foundation, Inc. (“the Corporation”). He asserts claims in his individual capacity and derivatively on behalf of the Corporation. The defendants include his fellow board members Kathryn Callen (his sister), John Callen (his nephew), and Phyllis Alberts. Richard also named as a defendant the University of Saint Francis of Fort Wayne, Indiana, Inc. Richard seeks injunctive relief against all other board members and a money judgment for the Corporation against Kathryn and Saint Francis.

The district court granted defendants’ motions to dismiss, and we affirm. Under Indiana law, only a shareholder or member of a corporation may bring a derivative action on the corporation’s behalf. Richard lacks standing to bring a derivative claim because he is neither a shareholder nor a member. In fact, the Corporation’s articles of incorporation provide that it “shall have no members.” Richard’s individual claims for money judgment likewise fail. They are properly understood as belonging to the Corporation (and so derivative in nature). Finally, all of Richard’s individual claims fail as a matter of law on their merits.

I. Factual and Procedural Background

We recount the key factual allegations in the complaint, which we accept as true and construe in the light most favorable to plaintiff Richard Doermer. See Huon v. Denton, 841 F.3d 733, 738 (7th Cir. 2016). We have also considered the Corporation’s articles of incorporation and bylaws and the resolution first appointing defendant Phyllis Alberts to the board. The Corporation appended these documents to its motion to dismiss: the documents are “central to the complaint and are referred to in it,” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013), and Richard has not challenged their authenticity.

Richard’s father formed the Corporation in 1990 along with Richard; Richard’s mother; and Richard’s sister, defendant Kathryn Callen. Pursuant to the Corporation’s articles of incorporation and bylaws, each family member served as a lifetime director. Richard’s mother died in 2000. A decade later, the remaining family members elected defendant Phyllis Alberts to a three-year term on the board. Richard’s father died in October 2010, leaving three directors: Richard, Kathryn, and Phyllis. Phyllis’s term expired on January 28, 2013.

Under Indiana law, a nonprofit corporation must be governed at all times by at least three directors. See Ind. Code § 23-17-12-3. In Richard’s view, when Phyllis’s term expired, the Corporation was no longer lawfully constituted and the two remaining board members (he and his sister Kathryn) could not act on the Corporation’s behalf or exercise its corporate powers. However, Indiana law provides a safety.valve when a nonprofit director’s term expires without further action by the board. Despite the expiration, “the director continues to serve until ... a successor is elected, designated, or appointed and qualifies.” § 23-17-12-5(d). That language is reflected in the Corporation’s bylaws and in the 2010 resolution first appointing Phyllis to the board. The bylaws stipulate that any director other than one of the surviving founders “shall serve for three (3) years ... and until her or his successor is elected and qualified” (emphasis added). The resolution confirmed that Phyllis would serve “for a term of three (3) years, or until such time as her successor shall be elected and qualified” (emphasis added).

Acting pursuant to the resolution and bylaws, Kathryn and Phyllis voted in September 2013 to elect Phyllis to a second term. Richard opposed Phyllis’s reelection. The board then took a series of actions over Richard’s objections, including authorizing gifts to Saint Francis (on whose board Kathryn also serves) and electing Kathryn’s son, defendant John Callen, as a fourth board member.

Following John’s election, Richard brought this suit. He seeks to assert claims on his own behalf and derivatively on behalf of the Corporation. Richard requested a judgment against Kathryn for the amount of charitable contributions made by the Corporation following the expiration of Phyllis’s original term (Count I); he sought to recover the gifts received by Saint Francis (Count III); and he sought Kathryn’s removal from the board (Count II), an injunction barring Phyllis and John from acting as directors (Count IV), and appointment of new directors (Count V). The Corporation and Saint Francis each moved to dismiss, citing Federal Rules of Civil Procedure 12(b)(6) and 23.1. The individual defendants answered the complaint and then moved for judgment on the pleadings and to join the Corporation’s motion.

The district court granted the defendants’ motions and dismissed the action. Doermer v. Callen, No. 2:15-CV-154 JVB, 2015 WL 6870580 (N.D. Ind. Nov. 9, 2015). The court found that Richard lacked standing to bring a derivative claim, id. at *2, and that his individual claims failed' because he lacked standing to bring them and, even if he did have standing, because the claims were meritless, id. at *4-5. Richard has appealed.

II. Analysis

We review de novo the district court’s dismissal of Richard’s claims for lack of standing to proceed in a derivative capacity, see Westmoreland County Employee Retirement System v. Parkinson, 727 F.3d 719, 724 (7th Cir. 2013), and for failure to state a claim, see Rocha v. Rudd, 826 F.3d 905, 909 (7th Cir. 2016). Our duty in this diversity suit is to decide issues of Indiana state law as we predict the Indiana Supreme Court would decide them today. E.g., Frye v. Auto-Owners Ins. Co., 845 F.3d 782, 785 (7th Cir. 2017). The case presents questions about the meaning of Indiana’s Nonprofit Corporation Act, so we apply the “basic tools of statutory interpretation” that the Indiana Supreme Court has long recognized: statutes are “read as a whole, and words are given their plain and ordinary meaning.” Id.; see also ESPN, Inc. v. University of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (“Our first task when interpreting a statute is to give its words their plain meaning and consider the structure of the statute as a whole.”); Ind. Code § 1 — 1—4—1 (codifying the canon that words “shall be taken in their plain, or ordinary and usual, sense”). Conversely, “when a statute is susceptible to more than one interpretation, it is deemed ambiguous and is thus open to judicial construction.” In re Howell, 27 N.E.3d 723, 726 (Ind. 2015).

In construing a statute, “our primary goal is to effectuate legislative intent.” Walczak v. Labor Works-Fort Wayne LLC, 983 N.E.2d 1146, 1154 (Ind. 2013). We aim for an interpretation that harmonizes all provisions so as to give a consistent meaning to the whole without treating any language as surplusage. See Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind. 2009); Corr v. American Family Ins., 767 N.E.2d 535, 540 (Ind. 2002). We avoid interpretations that depend on selective readings of individual words, and we “do not presume that the Legislature intended language used in a statute to be applied illogically or to bring about an unjust or absurd result.” ESPN, Inc., 62 N.E.3d at 1196, quoting Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015).

Before turning to the substantive issues on appeal, though, we address a procedural point. In the final paragraph of his brief in the district court, Richard asked for leave to amend his complaint. He offered, however, no explanation as to any revisions that might correct the deficiencies the defendants had identified, nor did he ever submit a proposed amended complaint or file a motion for leave to amend. On appeal, he has not identified any proposed amendments to his complaint, choosing instead to defend the complaint as pled. We ordinarily hesitate before affirming a final judgment of dismissal when the plaintiff seeks leave to amend, at least where there has been no prior effort to amend. See, e.g., Runnion v. Girl Scouts of Greater Chicago & Northwest Indiana, 786 F.3d 510, 519-20 (7th Cir. 2015) (reversing dismissal). In this case, however, it is clear that amendment would be futile. Richard has identified no proposed amendments that might save his case, and the law is clearly on the defendants’ side. See id. at 520 (where amendment would be futile, district court may deny leave to amend and enter immediate final judgment); see also Foman v. Davis, 371 U.S. 178,182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (futility of amendment is one reason to deny leave to amend). We turn now to Richard’s derivative claims and then his individual capacity claims.

A. Derivative Claims

1. The Indiana Nonprofit Corporation Act

Richard seeks to bring claims derivatively on behalf of the Corporation. The problem is that he is not a “member” of the Corporation. In fact, the Corporation has no members, a feature expressly permitted by the Nonprofit Corporation Act. See Ind. Code § 23-17-7-3. Neither that Act nor any other Indiana statute or case authorizes a non-member director of a nonprofit corporation to bring a derivative suit on the corporation’s behalf. For that matter, the Act includes no provision authorizing any derivative proceedings at all. (In this respect, the Act differs from the Indiana Business Corporation Law, which provides that a shareholder — but not a director without an ownership interest — may bring a derivative action. See § 23-1-32-1.)

The treatment of derivative litigation in the Indiana Business Corporation Law is consistent with the approach that most other jurisdictions take: ‘With the exception of the rare corporate statute that provides otherwise, directors and officers who cannot satisfy the share-ownership requirement do not have standing to bring a derivative suit solely because of their capacity as directors or officers.” 3 James D. Cox & Thomas Lee Hazen, Treatise on the Law of Corporations § 15:9 (3d ed. 2010) (updated 2016); cf. Schoon v. Smith, 953 A.2d 196, 209-10 (Del. 2008) (discussing 1994 proposal by American Law Institute to allow for narrow director derivative standing, but observing there is “little, if any, case law adopting, or legal commentary approving, this particular ... proposal,” and declining to recognize such an .action in Delaware).

Richard argues, however, that if the Indiana courts squarely confronted the issue, which he agrees is one of first impression, they would likely permit a nonmember director in his position to sue derivatively. In support, he cites Kirtley v. McClelland, 562 N.E.2d 27 (Ind. App. 1990), a case that recognized an equitable derivative remedy where none was expressly provided under the predecessor to the Nonprofit Corporation Act. The Kirt-ley court observed that the “absence of a statutory procedure for initiating a derivative action by a not-for-profit corporation when one has been affirmatively provided for for-profit corporations does not require the conclusion that statutory authorization is a necessity.” Id. at BO. In Kirtley, however, the plaintiffs were themselves members of the organization (a condominium owners’ association). Id. at 28-29. Kirtley did not hold or even hint that a nonmember would have standing to bring such an equitable action.

Richard also relies on Dotlich v. Dotlich, 475 N.E.2d 331 (Ind. App. 1985), abrogated in part on other grounds by State Board of Tax Comm’rs v. Town of St. John, 751 N.E.2d 657 (Ind. 2001). The plaintiff in Dotlich was both a shareholder and a director of a for-profit corporation. Id. at' 335. The court saw no reason why the plaintiff should be “barred from suing on behalf of the corporation just because he [was] a director.” Id. at 340. Again, the court did not hold or hint that a director who was not a shareholder could nevertheless sue to vindicate the corporation’s rights. On the contrary, in the more recent case of Brenner v. Powers, 584 N.E.2d 569, 576 (Ind. App. 1992), the Indiana Court of Appeals (again construing a predecessor to the Nonprofit Corporation Act of 1991) held that before plaintiffs’ standing to prosecute a derivative action could be established, the trial court would first have to resolve a dispute concerning plaintiffs’ corporate membership status.

In short, the Nonprofit Corporation Act does not authorize, nor have Indiana courts suggested they would approve, a non-member director’s derivative action. The state court of appeals has strongly implied that such .an action would be barred. See Kirtley, 562 N.E.2d at 30 (“In Indiana, standing is achieved by showing a personal interest in the corporation. ‘Shareholders and stockholders in a corporation, or an interested member, may bring suit on behalf of the corporation to protect the interest of the corporation ... but, in doing so, their interest must be shown....’”) (citations omitted).

Even if Richard could find some support in substantive state law for allowing him to bring derivative claims as a nonmember director, we doubt that he could bring a director’s derivative suit in federal court. Under Federal Rule of Civil Procedure 23.1(b)(1), a derivative complaint must “allege that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiffs share or membership later devolved on it by operation of law.” Federal jurisdiction here is based on diversity of citizenship under 28 U.S.C. § 1332. State substantive law applies, but federal procedural rules govern. Goesel v. Boley Int’l (H.K) Ltd., 806 F.3d 414, 419 (7th Cir. 2015), citing Erie Railroad Co. v. Tompkins, 304- U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Parkinson, 727 F.3d at 721-22 (adequacy of pleadings in derivative suit is “measured by federal law — in particular, Rule 23.1”); Boland v. Engle, 113 F.3d 706, 710 (7th Cir. 1997) (derivative suits in federal court are governed by “federal procedural requirements and state substantive law”).

Nor would Indiana procedural rules offer Richard any refuge even if they applied. Indiana Rule of Trial Procedure 23.1 echoes the requirements of the federal rule, providing that a derivative complaint “shall allege that the plaintiff was a shareholder or member or holder of an interest, legal or equitable, in such shares or membership at the time of the transaction ... or that his share or membership thereafter devolved on him by operation of law.” Neither the federal nor the state rule contemplates an action by a non-member director with no legal or beneficial interest in the corporation.

2. Policy Concerns

Lacking a legal basis for his theory of derivative standing, Richard invokes public policy concerns. He argues that a rule barring directors from pursuing derivative claims on behalf of memberless nonprofit corporations would “allow for a wrong without a remedy.” He adds that the “logical extension of defendants’ argument would leave the [Corporation] with no recourse for a director’s fraud or even embezzlement.”

The argument overlooks a number of other remedies that are less susceptible to private misuse. The Nonprofit Corporation Act authorizes a variety of mechanisms (including two that Richard himself invokes in support of his individual claims) to address such issues as deadlock or director misconduct. For example, the Act authorizes suit by a director or by the attorney general to enjoin corporate acts where third parties have not acquired relevant rights. Ind. Code § 23 — 17—4—4(b). The Act also authorizes suit by the corporation itself or by ten percent of members of a voting class to remove a director who engages in specified misconduct, such as fraud or gross abuse of discretion. § 28-17-12-13. The Act provides for administrative dissolution if the secretary of state receives credible evidence that the corporation is engaging in illegal or ultra vires acts. § 23-17-23-1(5). It also provides for judicial dissolution in an action brought by the attorney general if the corporation abuses its authority, § 23-17-24-1(a)(1)(B), or in an action brought by a director or a small consortium of members if the directors are deadlocked or engaged in illegal, oppressive, or fraudulent conduct, § 23-17-24-l(a)(2)(A)-(B). And the Act empowers the attorney general to request a variety of remedies in addition to dissolution, including injunctive relief and the appointment or removal of trustees, officers, or directors. § 23-17-24-1.5(b). These provisions are only illustrative; the Act authorizes additional remedies. The point is simply that the absence of a nonmember director’s derivative action would not leave memberless nonprofit corporations (like the Corporation here) without legal protection from wrongdoing by directors or others.

Even if the exclusion of a derivative remedy for memberless nonprofit corporations could result in some unchecked corporate mischief, it is no answer that the law guarantees a remedy for every wrong. The law has many doctrines and exceptions that limit the power of courts to redress even substantial harms. For example, immunity doctrines shield certain classes of government defendants from liability for misconduct. Judges, prosecutors, and officials who fill quasi-judicial and quasi-prosecutorial roles are entitled to absolute immunity from damages stemming from many of their official acts, no matter how erroneous or harmful. Brunson v. Murray, 843 F.3d 698, 710 (7th Cir. 2016). Other government officials who do not enjoy absolute immunity are nonetheless shielded by qualified immunity, a robust doctrine that “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). More broadly, doctrines of sovereign immunity bar or limit relief for many torts or breaches of contract by governments. Compare, e.g., FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”), with Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 39, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994) (“The Eleventh Amendment largely shields States from suit in federal court without their consent....”), and Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (“[T]he States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today....”). Some statutes provide heightened standards of liability for certain classes of defendants (such as Good Samaritan volunteers) who act in ways that society values, even if harm results in a particular case. E.g., Ind. Code § 34-30-12-1 (person who gratuitously renders emergency care at scene of accident is generally immune from liability for injuries unless person’s acts or omissions involved gross negligence or willful or wanton misconduct); § 34-30-12-2 (same for person who has completed a CPR training course and who attempts to gratuitously administer CPR to a victim of a medical emergency).

Just as the law protects certain classes of defendants, it limits the recovery that might otherwise inure to certain classes of plaintiffs. Prisoners, for instance, are barred under the Prison Litigation Reform Act of 1995 from bringing a federal civil action to recover for strictly mental or emotional injuries suffered while in custody. 42 U.S.C. § 1997e(e). Tort plaintiffs in jurisdictions that maintain traditional contributory negligence rules often encounter insurmountable barriers to recovery for tortious injuries. See, e.g., Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 69 A.3d 1149, 1150, 1152 (2013). Federal taxpayers who wish to bring a tax refund suit must typically first pay their assessed liability in full, a heavy burden for those taxpayers with limited means or large assessments. See Gessert v. United States, 703 F.3d 1028, 1037 (7th Cir. 2013), citing Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958). Litigants with otherwise viable claims often run up against statutes of limitation or repose, administrative exhaustion requirements, and other defenses. Through these restrictions and limitations, legislatures and courts attempt to balance the benefits of a robust private litigation regime against the costs that such a regime can impose.

Derivative litigation, which is a “perennial target of the commentators’ blandishments and ire,” 3 Cox & Hazen, supra, § 15:1, can impose significant costs. In enacting the Nonprofit Corporation Act, the Indiana legislature could reasonably have determined that the non-derivative remedies we cite above are adequate to protect against nonprofit corporate governance run amok. Indeed, the drafters likely included Indiana Code § 23-17-7-3 (providing that nonprofits may organize without members) to allow incorporators to opt out of derivative litigation. The Act was enacted barely six months after the Indiana Court of Appeals decided Kirtley, and early commentators read the new law as providing an escape hatch to avoid the consequences of Kirtley (or possibly even as superseding it). See Kevin M. Boyle, Nonprofit Corporation Act of 1991: Introduction to Significant Changes, 35 Res Gestae 462, 463 (1992) (“If members or directors of a Nonprofit organized under [a prior act] are concerned about potential derivative actions, the Nonprofit should opt into the 1991 Act. The elimination of members prevents the opportunity for member derivative actions.”); Paul J. Galanti, Indiana Nonprofit Corporation Act, 25 Ind. L. Rev. 999, 1013 (1992) (“The court in Kirtley ... recognized the right of a member of an Indiana not-for-profit corporation organized under the [predecessor statute] to bring a derivative action to remedy the defendant’s breach of duty. However, it is possible that the [Nonprofit Corporation Act’s] drafters intended to eliminate this right.”). It is generally prudent fqr courts to assume that legislatures intend the obvious and natural consequences of the statutory language they enact. The obvious and natural consequence of allowing nonprofit corporations without members is that the option forecloses derivative litigation.

As several commentators have noted, the drafters of the Nonprofit Corporation Act used the American Bar Association’s Revised Model Nonprofit Corporation Act of 1987 as a template for the Indiana statute. See, e.g., 1 Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation § 1:27 (2010) (updated 2016); Boyle, supra, at 462; Evelyn Brody, Institutional Dissonance in the Nonprofit Sector, 41 Vill. L. Rev. 433, 477 n.223 (1996); Galanti, supra, at 999-1003. The Indiana drafters incorporated the vast majority of provisions from the model act, often with only subtle changes in wording. But there is one difference important for this case. The Indiana drafters did not adopt section 6.30 of the model act, which authorizes derivative suits (including those brought by a director). Given the structure of the Nonprofit Corporation Act, the timing of its enactment, and the relationship between the Act and the ABA’s model act, the statutory option for incorporators to organize without members appears to be not a “bug” in the Act but a deliberate feature.

Richard has identified no authority for the proposition that a non-member director’s derivative action is available under Indiana law, and all signs point to the contrary. Moreover, federal procedural rules unambiguously require a derivative plaintiff to plead and prove that he is a member or shareholder of the subject corporation, and Richard is neither. We affirm the district court’s conclusion that Richard lacks standing to bring a derivative action. We need not reach the separate question whether Richard was excused from making demand on the board.

B. Individual Claims

Richard pled each of the -five counts in his complaint both as derivative and as personal to him. Our conclusion that he may not bring a derivative action does not necessarily foreclose all of his individual or “direct” claims. His claims for money judgment nonetheless fail because he is the wrong party to bring them. He might have had standing in theory to pursue a narrow claim for injunctive relief, but he has neither pled factual allegations nor identified a viable legal theory that could support such relief here.

1. Money Judgment

We consider first Richard’s claims for a money judgment. In Count I, he requests a judgment against his sister Kathryn and in favor of the Corporation in the amount of at least $220,000. In Count III, he seeks to recover gifts received by Saint Francis and thus requests judgment in favor of the Corporation in the amount of at least $115,000. There is no indication in the complaint that Richard has personally suffered any economic damage.

But there’s the rub. Even if Richard’s claims had merit (they do not, as discussed below), he could not step up as litigation champion on behalf of the Corporation to vindicate its interests. That is what derivative litigation is for — and Richard lacks standing to bring a derivative suit. He cannot avoid that bar simply by re-characterizing the Corporation’s claims as his own. See Knauf Fiber Glass, GmbH v. Stein, 622 N.E.2d 163, 165 (Ind. 1993) (“[T]he general rule of corporations [is] that a shareholder may not maintain an action in his or her own name to redress an injury to the corporation.”); cf. Mid-State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1335 (7th Cir. 1989) (“Good reasons account for the enduring distinction between direct. and derivative injury. When the injury is derivative, recovery by the indirectly-injured person is a form of double counting.”).

2. Injunctive Relief

Richard has identified two sections of the Nonprofit Corporation Act that he reads as according him a right to sue for injunctive relief in his capacity as director. We examine them in turn.

First, Indiana Code § 23-17-12-13(a) provides that a court may remove a director who commits specified misconduct in a proceeding “commenced, by the corporation or at least ten percent (10%) of the members of a class entitled to vote for directors.” This removal statute, if applicable, would pertain only to Count II, which asks the court to remove Kathryn from the board. The statute does not apply because Richard is not a member of the Corporation.

As a director, Richard is entitled under Article IV of the Corporation’s bylaws to vote for directors. But- the Nonprofit Corporation Act states that a person will not be deemed a member based on “Any rights the person has as a director.” § 23-17-2-17(b)(3). The phrasing of the removal statute — “ten percent (10%) of the members of a class entitled to vote for directors” (emphasis added) — connotes corporate membership rather than inclusion in any group that happens to enjoy voting rights. That reading is bolstered by § 23-17-7-4, which allows incorporators to “establish classes of membership with different rights or obligations.” A nonprofit corporation could be structured to have several classes of membership, only one of which might be authorized to elect directors. The members of that discrete voting class would then have standing to sue under the removal statute, provided all other requirements are satisfied. Since the Corporation has no members, the removal statute is irrelevant here.

Second, Indiana Code § 23-17-4-4(b) provides that a “corporation’s power to act may be challenged in a proceeding against the corporation for a declaratory judgment or to enjoin an act where a third party has not acquired rights.” The statute adds that proceedings “may be brought by the attorney general or a director” (emphasis added). The remedy under this section is narrow: it would not support the money judgment Richard demands in Counts I and III, nor would it provide a vehicle for the removal and appointment actions he requests in Counts II and V. In theory it might support prospective injunctive relief along the lines Richard describes in Count IV, but the question remains whether Richard has pled a plausible basis to justify such relief.

He has not. His complaint turns on two faulty theories of corporate wrongdoing. Principally, he argues that Phyllis Alberts was no longer empowered to act as a director after her original term expired on January 28, 2013, so that her September 2013 reelection was invalid. (Recall that she and Kathryn voted in favor of her reelection, while Richard opposed.) Building on that premise, Richard argues that all later corporate acts — including the gifts to Saint Francis and other charities and the election of Kathryn’s son John — were invalid because (1) he and Kathryn were the only authorized board members, (2) he opposed each of these acts, and (3) regardless, Indiana law requires that nonprofits be governed at all times by at least three directors. As Richard would have it, if a family foundation with three directors inadvertently misses a reelection deadline, the foundation is incapacitated as a matter of law.

Richard misreads a critical provision of the Corporation’s bylaws. Under Article IV, any director other than one of the Doermer family founders “shall serve for three (3) years ... and until her or his successor is elected and qualified” (emphasis added). Article IV continues: “At the regular meeting of the Board of Directors immediately preceding the expiration of the term of any director, or at a special meeting, the Board shall elect a successor director to replace the director whose term will expire, or has expired.(Emphasis added.) The bylaws contemplate the scenario that played out here — a director’s term expired before the board convened to hold another election.

The resolution originally appointing Phyllis to the board is clearer still: it states that Phyllis would “serve ... for a term of three (3) years, or until such time as her successor shall be elected and qualified.” (Emphasis added.) This unambiguous language mirrors Indiana Code § 23-17-12-5(d): “Despite the expiration of a director’s term, the director continues to serve until ... a successor is elected, designated, or appointed and qualifies.”

To arrive at Richard’s preferred construction of the governing instruments, we would have to ignore a statute that is directly on point, treat portions of Article IV of the bylaws as surplusage, and interpret the resolution appointing Phyllis to the board as if it read “serve ... for a term of three (3) years, or until such time as her successor shall be elected and qualified, whichever comes first,” which it does not. Instead, we adopt an interpretation that harmonizes the language of the bylaws and the resolution in a practical manner wholly consistent with the statute. Cf. Ryan v. Lawyers Title Ins. Corp., 959 N.E.2d 870, 875 (Ind. App. 2011) (courts will read a contract as a whole, attempting to harmonize its provisions without rendering any meaningless). Phyllis retained her powers as a director even after her term formally expired. Her reelection by a vote of 2-1 was lawful. The later corporate transactions and activities approved by that same 2-1 vote were likewise lawful. All other issues in this case aside, the fact that Phyllis’s power as a director did not expire as a matter of law on January 28, 2013 takes most of the remaining air out of Richard’s complaint.

But not quite all of it. Richard offers a final theory of corporate wrongdoing. He alleges that Kathryn’s vote in favor of gifts to Saint Francis was “conflicted” because she also serves as a member of that organization’s board of trustees. In this court he characterizes this supposedly “conflicted” vote as a kind of “self-dealing.”

Richard has not identified any authority for the proposition that, merely by voting in favor of a charitable contribution from one nonprofit organization to another, Kathryn somehow breached a fiduciary duty or committed some other wrong. Richard cannot cite a case, a statute, a regulation, or even a provision of the corporate instruments that would render Kathryn’s vote unlawful. Indiana Code § 23-17-13-2.5(b) does not expressly immunize a “conflicted” director, but it provides that a transaction between two nonprofit corporations is not void or voidable solely because a director who votes to authorize the transaction serves on the boards of both corporations. With no explanation from Richard as to why Kathryn’s approval of the gifts to Saint Francis was impermissible, and with clear statutory guidance showing that the transaction itself could survive irrespective of any “conflict,” Richard’s final theory of corporate wrongdoing is without merit.

Richard failed to allege a plausible claim for relief, and he has proposed no amendment that could possibly save his complaint. The district court’s dismissal of Richard’s case was appropriate. The judgment of the district court is

AFFIRMED.

      . The Corporation also argued lack of subject matter jurisdiction, citing Rule 12(b)(1). The district court also cited Rule 12(b)(1). As explained below, we agree with the district court that Richard lacked standing to sue derivatively. However, the problem is one of prudential rather than constitutional standing, so it did not actually affect subject matter jurisdiction. See Korte v. Sebelius, 735 F.3d 654, 668 (7th Cir. 2013) (“The [shareholder-standing] rule is an aspect of third-party standing doctrine, which implements the general principle that litigants may not sue in federal court to enforce the rights of others .... Like other rules of third-party standing, however, the shareholder-standing rule is a prudential limitation and does not affect the court’s authority to hear the case.”); see also In re Facebook, Inc., Initial Public Offering Derivative Litig., 797 F.3d 148, 156 (2d Cir. 2015) (“Failure to satisfy the contemporaneous ownership requirement of Rule 23.1 does not, of course, raise a jurisdictional issue under Article III. Rather, it means that the putative derivative plaintiff does not have standing to represent the interests of the nominal defendant in a derivative capacity.”); In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1237 (9th Cir. 2008) (“Federal Rule of Civil Procedure 23.1’s pleading requirement does not directly implicate subject matter jurisdiction!.]”). The district court's citation to Rule 12(b)(1) does not affect this appeal. The court properly confined its review to Richard’s allegations and the legal documents that were integral to his complaint. The court’s substantive analysis was correct, as was the scope of its review.

      . See, e.g., Harry G. Hutchison, Presumptive Business Judgment, Substantive Good Faith, Litigation Control: Vindicating the Socioeconomic Meaning of Harhen v. Brown, 26 J. Corp. L. 285, 290 (2001) ("[Derivative] suits raise the possibility that even where the interests of management and shareholders are already properly aligned, litigation that results in abusive settlements may nonetheless occur. This may provide an incentive for future, improper litigation or abusive settlements while also raising the possibility of income redistribution from shareholders to attorneys.”); Carol B. Swanson, Juggling Shareholder Rights and Strike Suits in Derivative Litigation: The ALI Drops the Ball, 77 Minn. L. Rev. 1339, 1348 (1993) ("In contrast to ... potentially substantial benefits, courts and commentators have ... long stigmatized derivative litigation as the ‘refuge of strike suit artists specializing in corporate extortion.’ ... In addition to inviting strike suits, intra-corporate litigation necessarily entails significant social costs.”) (footnote omitted).

      . Richard’s attempt to recover the gifts to Saint Francis would fail as a matter of law even apart from his lack of standing. Richard relies on a theory of unjust enrichment. That does not work. To show unjust enrichment, a plaintiff must establish that he conferred a benefit on the defendant while expecting remuneration and that it would be unjust for the defendant to retain the benefit without making restitution. Woodruff v. Indiana Family & Social Servs. Admin., 964 N.E.2d 784, 791 (Ind. 2012); see also Coleman v. Coleman, 949 N.E.2d 860, 867 (Ind. App. 2011) ("We [have] noted that 'relief will be denied if the plaintiff did not contemplate a fee in consideration of the benefit or if the defendant could not reasonably believe the plaintiff expected a fee.’ ") (citation omitted). Putting to one side the problem that Richard personally conferred no benefit on Saint Francis, there is no indication that the Corporation expected some kind of remuneration in exchange for its gifts, nor certainly that Saint Francis believed it would owe any remuneration. Richard’s reliance on Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995), is not helpful. That case involved a different jurisdiction (Illinois), a different type of claim (fraudulent conveyance as prohibited by statute), and a different policy concern (protection of creditors).

      . To qualify for protection under the statute, a transaction must be (1) authorized by a majority of disinterested directors, (2) approved by those members who are entitled to vote on the transaction, or (3) “fair as to the corporation at the time the ... transaction is authorized.” Ind. Code § 23-17-13-2.5(c). Richard has alleged no facts showing that the gifts to Saint Francis were somehow unfair to the Corporation.