Conner, Kevin A. v. McBride, Daniel R. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1951
KEVIN A. CONNER,
Petitioner-Appellant,
v.
DANIEL MCBRIDE, Superintendent,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99 C 1923—Sarah Evans Barker, Judge.
____________
ARGUED JANUARY 16, 2004—DECIDED JULY 20, 2004
____________
Before EASTERBROOK, KANNE, and ROVNER, Circuit
Judges.
KANNE, Circuit Judge. This habeas corpus appeal comes
to us following Kevin Conner’s October 7, 1988 conviction
for three murders in Indiana. The jury recommended death
for the killings and, subsequently, the state court judge
sentenced Conner to two death sentences and a term of
60 years on November 3, 1988. After exhausting his state
remedies, see Conner v. State, 580 N.E.2d 214, 217 (Ind.
1991), cert. denied, 503 U.S. 946 (1992) (“Conner I”); Conner
v. State, 711 N.E.2d 1238 (Ind. 1999), cert. denied, 531 U.S.
829 (2000) (“Conner II”), Conner then filed a petition for
2 No. 03-1951
federal habeas corpus relief, which the district court denied,
Conner v. Anderson, 259 F. Supp. 2d 741, 769 (S.D. Ind.
2003) (“Conner III”).
I. Background
The facts surrounding Conner’s crimes, which occurred on
the south side of Indianapolis, are essentially undisputed.
Sometime during the early morning of January 26, 1988,
Conner, Tony Moore, Bruce Voge, and Steve Wentland were
drinking at Moore’s house. When Conner, Moore, and
Wentland went for a drive in Wentland’s car, Voge stayed
behind at the house. During the drive, an argument broke
out between Moore, who was seated in the front, and
Wentland, who was driving. As a result, Moore stabbed
Wentland with Conner’s knife, which caused Wentland to
abandon the car and run. Conner, armed with the knife,
pursued Wentland on foot, while Moore took control of the
car and ran Wentland down. After Wentland was down,
Conner beat him with his fists and stabbed him multiple
times with the knife, eventually killing him.
Conner and Moore then drove to Conner’s place of em-
ployment, where they awoke Conner’s employer and were
given access to a warehouse. Another argument ensued be-
tween Conner and Moore about what had just happened
and what they should do. During the argument, Conner ob-
tained his sawed-off shotgun, shot, and killed Moore. This
reawakened Conner’s employer, who confronted Conner as
he exited the warehouse building. Conner replied that “he
had to off Tony.” Conner next left the warehouse and drove
to Moore’s house, where he shot and killed Voge, while Voge
lay on the couch.
Conner then went about disposing of Moore’s body with
the aid of various friends, abandoned Wentland’s automo-
bile, and fled the area. He was apprehended in Texas on
No. 03-1951 3
January 30, 1988 and returned to Indiana to face murder
charges in the Marion County Superior Court in
Indianapolis.
The trial lasted from October 3 to 7, 1988, and the jury
found Conner guilty of each killing. The penalty phase
hearing was held on October 9, and the jury recommended
death, as sought by the state. Then on November 3, the
state court sentenced Conner to death for the murders of
Voge and Moore, and to a term of 60 years for the murder
of Wentland.
On direct appeal in state court, Conner claimed fifteen
errors had occurred in connection with his trial and sen-
tencing, including that his confession was improperly ad-
mitted because it was obtained in violation of his Fifth
Amendment rights, as outlined in Miranda v. Arizona, 384
U.S. 436 (1966), and its progeny. Conner I, 580 N.E.2d at
216, 219. The Supreme Court of Indiana ultimately af-
firmed the lower courts’ rejection of all these arguments. Id.
at 221.
Conner next sought post-conviction relief, which under
Indiana law is a remedy limited to issues not known at trial
or not available on direct appeal. See Conner II, 711 N.E.2d
at 1244. He again asserted numerous errors, including: (1)
his confession was obtained through manipulation, without
regard to his mental disorders, and was therefore improp-
erly admitted at trial;1 (2) an improper ex parte communica-
tion between the jury and a bailiff took place during
penalty-phase deliberations; and (3) he was denied effective
assistance of trial counsel. Id. at 1244-45, 1247-48. After
hearing testimony and receiving other evidence as to many
of the issues raised, the original post-conviction court
denied Conner’s petition for relief. On appeal, because the
1
As to why the post-conviction court considered the admissibility
of Conner’s confession for a second time, see infra note 3.
4 No. 03-1951
Indiana Supreme Court did not find that the evidence
unmistakably and unerringly led to a conclusion contrary
to that reached by the post-conviction court below, it
affirmed the denial of Conner’s petition with respect to all
issues. See id. at 1259.
Finding no relief in the state courts, Conner filed a pe-
tition for habeas corpus relief in federal district court.
Conner III, 259 F. Supp. 2d at 752. Among other myriad
issues, Conner again raised the propriety of the admission
of his confession at trial, the alleged ex parte communica-
tion between a bailiff and the jury, and the ineffective
assistance of trial counsel. Id. After an exhaustive analysis
of each of the issues raised by Conner, the district court
denied relief. Id. at 769. He now appeals this denial, but
only with respect to the three issues listed above. And for
the reasons that follow, we affirm.
II. Analysis
A. Legal Standards
A federal court may grant habeas relief only if the pe-
titioner demonstrates that he is in custody “in violation of
the Constitution or laws . . . of the United States.” 28 U.S.C.
§ 2254(a) (1996). In this case, the particular contours of our
habeas review are restricted by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh
v. Murphy, 521 U.S. 320 (1997).
However, to even raise any claim of error in habeas, state
remedies must be exhausted. Mahaffey v. Schomig, 294
F.3d 907, 914 (7th Cir. 2002). In other words, each claim of
error must be raised first in state court, Breard v. Greene,
523 U.S. 371 (1998), so that the state courts have an
opportunity to correct constitutional violations, Duckworth
v. Serrano, 454 U.S. 1, 3 (1981). If a petitioner fails to
exhaust, and the court to which he would have been
No. 03-1951 5
permitted to present his claims would now find such claims
procedurally barred, then those claims are procedurally
defaulted for habeas purposes. Coleman v. Thompson, 501
U.S. 722, 729 n.1 (1991). Likewise, procedural default also
occurs if the state court decision rests on a state procedural
rule that is independent of the federal question and ade-
quate to support the judgment. Id. at 729; see also Ford v.
Georgia, 498 U.S. 411, 423-24 (1991) (explaining when such
a rule is “adequate”). However, in either situation, all may
not be lost—a federal court may still hear a petitioner’s
claim if he can demonstrate either (a) cause for the default
and prejudice (i.e., the errors worked to the petitioner’s
“actual and substantial disadvantage,” United States v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original)); or
(b) that failure to consider his claim would result in a
fundamental miscarriage of justice (i.e., a claim of actual
innocence, Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). See
McCleskey v. Zant, 499 U.S. 467, 493-95 (1991); Coleman,
501 U.S. at 750. Here, neither exhaustion nor procedural
default are materially at issue with respect to Conner’s
three claims, with one minor exception discussed later.
Turning to the substantive restrictions AEDPA places
upon habeas review, when a claim has been adjudicated by
the state courts on the merits, that is, substantively and not
procedurally, see, e.g., Green v. Johnson, 116 F.3d 1115,
1121 (5th Cir. 1997), a writ should be granted only if the
state court’s decision was “contrary to” clearly established
federal law as determined by the Supreme Court, §
2254(d)(1), involved an “unreasonable” application of the
same, id., or was based upon an “unreasonable” determina-
tion of the facts in light of the evidence presented in the
state court proceedings, § 2254(d)(2).
These restrictions have been further explained by nu-
merous cases, a handful of which are noted herein. First, a
state court decision is “contrary to” federal law if the state
court either incorrectly laid out governing Supreme Court
6 No. 03-1951
precedent, or, having identified the correct rule of law,
decided a case differently than a materially factually
indistinguishable Supreme Court case. Williams v. Taylor,
529 U.S. 362, 405-06, 412-13 (2000); see also Hammer v.
Karlen, 342 F.3d 807, 810 (7th Cir. 2003).
Next, a state court’s application of a correct statement of
federal law is “unreasonable” if it is objectively so, and not
merely erroneous or incorrect. Williams, 529 U.S.at 410-12;
A.M. v. Butler, 360 F.3d 787, 794-95 (7th Cir. 2004) (citing
Wiggins v. Smith, 539 U.S. ___, 123 S. Ct. 2527, 2535
(2003)). Specifically, a state court’s decision “minimally
consistent with the facts and circumstances of the case” is
not unreasonable, Hennon v. Cooper, 109 F.3d 330, 335 (7th
Cir. 1997), while a determination “lying well outside the
boundaries of permissible differences of opinion” is,
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), cited
in Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003).
Last, factual determinations of a state court are presumed
to be correct and hence not “unreasonable,” unless a
petitioner can show otherwise by clear and convincing
evidence. See Ward, 334 F.3d at 704 (citing 28 U.S.C.
§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 339-42
(2003)); see also Sanchez v. Gilmore, 189 F.3d 619, 623 (7th
Cir. 1999) (calling this a “rigorous burden of proof”).
Whether a state ruling runs afoul of these AEDPA stand-
ards is a legal determination, and, as such, we review the
conclusions of the district court de novo. Ward, 334 F.3d
at 704; see Sweeney v. Carter, 361 F.3d 327, 330 (7th Cir. 2004)
(citing Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999)).
Consequently, our analysis focuses primarily upon the de-
cisions and factual findings of the Marion County Superior
No. 03-1951 7
Court,2 the court which heard Conner’s original petition for
post-conviction relief (“post-conviction court” or “PCR court”).3
2
The Marion County Superior Court was the situs of both
Conner’s trial and his initial post-conviction review proceedings.
3
The determinations of the PCR court clearly should be the focus
of our AEDPA analysis with respect to the two claims which were
raised for the first time in Conner’s petition for post-conviction
relief, namely, that there was an improper ex parte communica-
tion between a bailiff and the jury and that he suffered ineffective
assistance of trial counsel. But see also infra notes 7, 10, and 11
(explaining that we also looked to the Indiana Supreme Court’s
holdings as to three subsidiary ineffective assistance of counsel
issues where the PCR court did not make any express findings).
However, Conner challenged the admissibility of his confession
both on direct appeal and in his post-conviction petition for relief.
Thus, it would seem that we would need to analyze the decisions
of both the trial court, which heard and denied Conner’s original
motion to suppress, and the PCR court’s denial of relief with
respect to his confession. But this is not so.
As the Indiana Supreme Court noted in its review of the post-
conviction court’s denial of relief, the PCR court could have re-
fused to consider the admissibility of Conner’s confession on res
judicata grounds, since on direct appeal the Indiana Supreme
Court, see Conner I, 580 N.E.2d at 219, already determined that
the trial court committed no error when it admitted Conner’s con-
fession. Conner II, 711 N.E.2d at 1247 (citing Minnick v. State,
698 N.E.2d 745, 760 (Ind. 1998)). Instead, the PCR court consid-
ered the issue fully on its merits, apparently unrestricted by any
confining standards of review, took into account all old and new
evidence, as presented by both the state and Conner, and ulti-
mately rejected this claim. See id. Therefore, we focus our AEDPA
analysis with respect to the admissibility of Conner’s confession
solely upon the factual findings and conclusions of the post-
conviction court.
8 No. 03-1951
B. Application
1. Confession
After his arrest, Conner signed written waivers of his
Miranda rights and a written confession, and agreed to be
videotaped while giving an incriminating statement to
Indianapolis police detectives Green and Stamm. At no time
has he challenged the voluntariness of his Miranda waiv-
ers.4 But at trial, on direct appeal, throughout his state
post-conviction proceedings, and now in his petition for
habeas relief, Conner has posited that his confession was
involuntary. All state courts considering this issue have
disagreed with Conner, and he provides us here with no
reason to conclude that the judgment of the Indiana post-
conviction court was unreasonable.
Before turning to our substantive analysis, we must
dispense with Conner’s misguided notion that we should
review the PCR court’s ruling de novo, unrestricted by
AEDPA standards. This is so, he asserts, because neither
the trial court nor the PCR court expressly laid out the
federal law applicable to the admissibility (i.e., voluntari-
ness) of confessions, as established by Miranda and its
progeny. However, so long as a habeas petition is filed after
AEDPA’s effective date and a state court arguably ad-
dressed the claim, as is the case here, federal review is
inescapably circumscribed by the Act. The question in this
case is not whether AEDPA applies, as it most certainly
does, but instead whether the post-conviction court’s find-
4
Miranda v. Arizona, 384 U.S. 436 (1966), declared that an indi-
vidual has a Fifth and Fourteenth Amendment right to have
counsel present during custodial interrogation. Edwards v.
Arizona, 451 U.S. 477, 482 (1981). A defendant may waive his en-
titlement to the rights articulated in Miranda “provided the
waiver is made voluntarily, knowingly, and intelligently.” 384
U.S. at 444.
No. 03-1951 9
ings with respect to Conner’s confession can pass “AEDPA
muster,” because none include a statement of, or explicitly
apply, federal law.
Although we can imagine a scenario in which a state
court’s unexplained ruling would present such a maze of
uncertainty as to what law was applied and/or what factual
findings were made that any challenge to the ruling would
be hopelessly confounded, such is not the case here. As we
explain below, the post-conviction court’s analysis and
ultimate decisions comported with federal jurisprudence.
Cf. Edmunds v. Deppisch, 313 F.3d 997, 999-1000 (7th Cir.
2002) (holding that a state trial court’s evidentiary ruling
excluding demeanor evidence was a reasonable—although
possibly incorrect—application of federal law and thus
constitutional where the state court based its ruling solely
upon state evidence law, repeatedly refused to address the
constitutional issue expressly, and nowhere referred to or
applied federal law, because the trial court’s reasoning
mirrored the balancing test laid out in Fed. R. Evid. 403).
Perhaps guided by the district court’s application of
AEDPA to his confession claim, see Conner III, 259 F. Supp.
2d at 759, Conner does mention the applicable AEDPA
standards in the last sentence of the relevant section of his
brief to this court. However, he states only that “the state
court rulings were clearly unreasonable determinations . . .
and/or contrary to” applicable federal law. Conner nowhere
explicitly challenges any of the factual findings of the PCR
court. At the end of his argument, Conner simply refers us
to his statement of facts contained in his brief for informa-
tion concerning Conner’s confession. Arguably, we could
consider his confession claim waived in the absence of fully
developed legal arguments. Nevertheless, this is a review of
a death sentence and, in this instance, prudence directs us
to address every argument raised explicitly or implicitly by
Conner.
10 No. 03-1951
In evaluating the voluntariness of a waiver or confession,
a court must consider the totality of the circumstances. See
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Spe-
cifically, a confession is “involuntary” only if circumstances
demonstrate that police coercion or overreaching overbore
the accused’s will and caused the confession. See Dickerson
v. United States, 530 U.S. 428, 434 (2000) (discussing
cases). Moreover, such coercion or overreaching is a nec-
essary predicate to a finding of involuntariness. United
States v. Abdulla, 294 F.3d 830, 836 (7th Cir. 2002). Put
differently, a “ ‘confession is voluntary if, in light of the
totality of the circumstances, the confession is the product
of a rational intellect and free will and not the result of
physical abuse, psychological intimidation, or deceptive
interrogation tactics that have overcome the defendant’s
free will.’ ” Id. (quoting United States v. Dillon, 150 F.3d
754, 757 (7th Cir. 1998)). In applying the totality test, we
have identified a variety of factors which a court may con-
sider to assess voluntariness, including but not limited to:
whether the defendant was read his Miranda rights; the
individualized characteristics of the defendant (i.e., age,
intelligence level, education, mental state); interrogation
conditions (i.e., duration, environment, access to restroom
facilities and food); and the conduct of law enforcement
officers (i.e., use of physical punishment). United States v.
Ceballos, 302 F.3d 679, 694 (7th Cir. 2002); United States v.
Brooks, 125 F.3d 484, 492 (7th Cir. 1997). See generally
Schneckloth, 412 U.S. at 226, quoted in Dickerson, 530 U.S.
at 434.
The post-conviction court made numerous factual findings
with respect to Conner’s confession, which required the
court to weigh and evaluate the extensive evidence pre-
sented by both the state and Conner. Ultimately, the court
concluded that the confession was properly admitted. The
court thus applied the totality test, which Schneckloth,
supra, established as the appropriate constitutional test for
No. 03-1951 11
voluntariness. Therefore, even if the PCR court’s ruling was
incorrect, so long as it was reasonable (i.e., within the
boundaries of permissible differences of legal opinion), there
is no basis for deeming it unconstitutional. Cf. Edmunds,
313 F.3d at 999.
Conner challenges the constitutionality of his confession
based upon the following assertions: (a) he requested an
attorney numerous times; (b) Green and Stamm used a
criminal codebook to dupe Conner into thinking that he was
only guilty of manslaughter; (c) Green and Stamm “tricked
and cajoled” Conner into signing an incriminating state-
ment and agreeing to have his confession videotaped; and
(d) Conner’s confession omitted key information and
conflicted in material respects with incontrovertible facts
about the killings.
a. Conner’s request for an attorney and the use
of a criminal codebook during Conner’s inter-
rogation
Credibility determinations by the PCR court doom
Conner’s first two assertions. Specifically, the court deter-
mined that Conner never requested an attorney and that
Detective Green used a law book to discuss legal concepts
with Conner, not to mislead him. These determinations are
presumed correct unless overcome by clear and convincing
evidence to the contrary. See 28 U.S.C. § 2254(e)(1). No such
evidence has been shown. Detectives Green and Stamm
testified that Conner never requested an attorney. Green
testified that he used the criminal codebook to discuss legal
concepts with Conner. And the only evidence Conner offered
to support his version of the disputed events was his own
testimony. Clearly, the PCR court credited the detectives’
testimony and disbelieved Conner’s self-serving account.
Absent more, Conner’s assertions are not enough to disturb
the PCR court’s findings.
12 No. 03-1951
b. “Trickery” by Detectives Green and Stamm
We next address Conner’s assertion that the police offi-
cers “tricked and cajoled” him into confessing and agreeing
to videotape an incriminating statement. This contention
amounts to a claim that the post-conviction court unreason-
ably determined that Conner’s confession was voluntary.
Because the test for voluntariness is a totality of the
circumstances test, see supra, we consequently must
determine whether the PCR court’s weighing of the evi-
dence was so incredible as to be “well outside the bound-
aries of permissible differences of opinion.” See Hardaway,
302 F.3d at 762. In this case, we can easily say that the
PCR court was not unreasonable when it determined that
the totality of the circumstances mediated in favor of the
conclusion that Conner’s confession was voluntary.
First, Conner had been apprised of his constitutional
rights (i.e., read his Miranda rights) while incarcerated
in Texas and again after his arrival in Indiana. He then
voluntarily signed multiple waivers of his rights prior to
being questioned and before he gave his videotaped state-
ment. Conner stated during questioning that he understood
his rights and confirmed his awareness of his situation and
his option to decline to answer questions or make a state-
ment until he had spoken with an attorney.
Second, at the time of his confession, Conner was an
adult, twenty-two years of age. Third, the interrogation
lasted approximately three hours, at most. Fourth, during
the interrogation Conner was provided with food and drink,
allowed to use the restroom, given a pack of Camel ciga-
rettes upon request, and when it was discovered that the
heat was malfunctioning in the interrogation room, he was
moved to a different room. Fifth, nowhere does Conner aver
that he was physically harmed during the interrogation.
Last, because involuntary confessions are “to an unas-
certained extent” untrustworthy, Rogers v. Richmond, 365
U.S. 534, 541 (1961); see also Buckley v. Fitzsimmons, 20
F.3d 789, 795 (7th Cir. 1994) (“Confessions wrung out of
No. 03-1951 13
their makers may be less reliable than voluntary confes-
sions . . . .”), we consider the reliability of Conner’s confes-
sion as a factor in the totality test. And we cannot say
the post-conviction court was unreasonable when it found
that Conner’s confession was reliable. Conner bases his
unreliability argument on the fact that portions of his
confession were incompatible with certain incontrovertible
facts ascertained at trial. However, the PCR court implicitly
determined that despite discrepancies between the details
in Conner’s confession and particular facts adduced at trial,
the principal facts provided in Conner’s confession were
corroborated. In addition, the court credited the testimony
of Detectives Green and Stamm, wherein they both ex-
pressed their belief that Conner had been truthful when he
confessed. The evidence in the record supports these
findings, and Conner has not pointed us to any other evi-
dence which clearly and convincingly shows that the PCR
court unreasonably determined that Conner’s confession
was reliable.
To summarize, the foregoing facts do not support a find-
ing that Conner’s confession was anything but voluntary.
Furthermore, we have repeatedly held that “a law-en-
forcement agent may ‘actively mislead’ a defendant in order
to obtain a confession, so long as a rational decision re-
mains possible.” Ceballos, 302 F.3d at 695 (quoting United
States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990));
Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992)
(false statement that a witness had seen the defendant’s
vehicle in the alley in which the victim had been raped was
not coercive without more); see also United States v. Orso, 266
F.3d 1030, 1039 (9th Cir. 2001) (false statement that witness
had seen her with a gun was not coercive); Lucero v. Kerby,
133 F.3d 1299, 1311 (10th Cir. 1998) (lie regarding finger-
print evidence was not coercive). Conner cannot point this
court to any specific facts which demonstrate how he was
“tricked” or “cajoled” by Detectives Green and Stamm.
However, he obtusely argues that his alleged mental defect
14 No. 03-1951
(an “organic” personality/thought disorder discussed in detail
later in this opinion) made him especially susceptible to
confusion and trickery and that the detectives’ “misuse” of
the criminal codebook, discussed supra, rendered his
confession involuntary.
First, although we explicitly rejected this assertion above,
for argument’s sake we will assume that the detectives did
in fact use a criminal codebook to affirmatively misrepre-
sent Indiana criminal law to Conner. But such a basis is
insufficient to deem a state court’s admission of a confession
unreasonable under AEDPA when a defendant has already
voluntarily waived his Miranda rights. In Jackson v. Frank,
348 F.3d 658, 663-65 (7th Cir. 2003), we considered whether
a state court unreasonably applied federal law when it
admitted a defendant’s confession despite a police officer’s
misstatement of state law, which preceded the defendant’s
Miranda waiver and concerned the availability of a public
defender. We pointed out that the United States Supreme
Court has not clarified whether a legal misstatement by a
police officer would per se make a subsequent Miranda
waiver involuntary, and that at least one other court of
appeals has held that, in and of itself, such a misstatement
does not. Id. (citing Duckworth v. Eagan, 492 U.S. 195, 203-
04 (1989); Colorado v. Spring, 479 U.S. 564, 576 n.8 (1987);
Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002) (en banc)).
Consequently, we held that the state court’s decision to
allow the confession was not unreasonable. Id. at 665. And
because in Jackson we could not deem “unreasonable” the
state court’s determination that an officer’s misrepresenta-
tion of the law prior to a Miranda waiver did not vitiate the
voluntariness of the waiver, then we cannot hold in this
case that the PCR court was “unreasonable” in determining
that Conner’s confession was voluntary, solely because
police officers may have misrepresented state criminal law
after Conner’s indisputably voluntary Miranda waiver.
No. 03-1951 15
Second, the post-conviction court considered conflicting
evidence as to whether Conner suffered from a mental dis-
order or defect at the time of his interrogation. The court’s
implicit decision to credit the evidence which tended to
show that Conner did not suffer from any disorder or defect
is entitled to our deference, absent clear and convincing
evidence to the contrary. See, e.g., Marshall v. Lonberger,
459 U.S. 422, 432-33 (1983). Conner has not made such a
showing. Even if we credit Conner’s evidence of his mental
disorder at the time of his interrogation, in order to find
that the PCR court’s determination was unreasonable, we
would also have to find that the defect was of such magni-
tude as to render Conner so susceptible to trickery, decep-
tion, or other standard interrogation tactics (i.e., Conner
asserts that Green and Stamm encouraged him to confess
because it “is good for the soul”) that his free will was
overborne. The evidence here in no way supports such a
finding.
In conclusion, Conner has failed to present this court with
factors pertinent to the interrogation which would suggest
that the post-conviction court was well outside the realm of
permissible legal conclusions when it held there was no
coercive police activity which caused Conner’s will to be
overborne. Hence, the PCR court was reasonable in finding
that Conner’s confession was voluntary and that the trial
court’s admission of his statements to police and the
videotaped statement was not error. There is no basis under
AEDPA to support Conner’s habeas petition as to his
confession and the district court’s denial of relief was
proper.
2. Ex Parte Jury Communication
Conner next contends that his right to be present dur-
ing all stages of the prosecution against him was violated
16 No. 03-1951
when a jury question regarding the law was allegedly an-
swered by a bailiff during deliberations. The constitutional
right to “presence” derives from the Sixth Amendment’s
Confrontation Clause, and the Due Process Clause of the
Fifth and Fourteenth Amendments. Moore v. Knight, 368
F.3d 936, 940 (7th Cir. 2004); see Ellsworth v. Levenhagen,
248 F.3d 634, 640 (7th Cir. 2001) (citing Illinois v. Allen,
397 U.S. 337, 380 (1970); United States v. Gagnon, 470 U.S.
522, 526 (1985)). This right is implicated when there is a
reasonably substantial relation to the fullness of opportu-
nity to defend against the charge and to the extent that a
fair and just hearing would be thwarted by the defendant’s
absence. 248 F.3d at 640 (citing Verdin v. O’Leary, 972 F.2d
1467, 1482 (7th Cir. 1992) (citing Gagnon, 470 U.S. at 526
(1985)). Specifically, Snyder v. Massachusetts, 291 U.S. 97,
105-08 (1934), Kentucky v. Stincer, 482 U.S. 730, 745 (1987),
and Gagnon, 470 U.S. at 526, make clear that the defendant
must be present at “all important steps of the criminal
proceeding.” Small v. Endicott, 998 F.2d 411, 415 (7th Cir.
1993) (pointing out that not every stage of a criminal
proceeding is important and holding that a “defendant need
not be present at a pretrial hearing where only preliminary
matters of a procedural nature are at stake.”). In Indiana,
generally, with respect to questions posed by a deliberating
jury: “the proper procedure is for the judge to notify the
parties so they may be present in court and informed of the
court’s proposed response to the jury before the judge ever
communicates with the jury.” Rogers v. R. J. Reynolds
Tobacco Co., 745 N.E.2d 793, 795 (Ind. 2001) (citing cases).
Cf. Ind. Jury R. 28 (2003). In the criminal context, if an
improper communication occurs between a bailiff and the
jury, there is a “presumption of harm to the defendant that
the state must rebut to avoid reversal.” Baxter v. State, 727
N.E.2d 429, 434 (Ind. 2000) (quoting Alexander v. State, 449
N.E.2d 1068, 1074 (Ind. 1983)); see also Winters v. Miller,
274 F.3d 1161, 1168 (7th Cir. 2001). Reversal may be
No. 03-1951 17
avoided only if no harm or prejudice to the defendant
resulted. Baxter, 727 N.E.2d at 434. This is consistent with
the rule that an improper communication with a jury
(whether by a judge or court staff) may not be per se
unconstitutional if, upon inquiry into the fundamental
fairness of the trial as a whole, the improper communica-
tion was found to be harmless. Winters, 274 F.3d at 1168;
see also Ellsworth, 248 F.3d at 640-41; Verdin, 972 F.2d at
1482; United States ex rel. Tobe v. Bensinger, 492 F.2d 232,
238-39 (7th Cir. 1974), cited in Cramer v. Fahner, 683 F.2d
1376-87 (7th Cir. 1982). Cf. United States v. Degraffenried,
339 F.3d 576, 579-80 (7th Cir. 2003) (citing Fed. R. Crim.
Pro. 43; Rogers v. United States, 422 U.S. 35 (1975) (laying
out procedures for responding to jury questions in federal
criminal trials)).
Conner argues that because one or more jurors asked a
question regarding sentencing authority during penalty-
phase deliberations, because a bailiff provided an answer,
and because defense counsel was not present during this
communication, Conner was irreparably prejudiced. And
thus, he posits, his petition for habeas relief should be
granted.
One preliminary issue deserves our attention. Just
as Conner erroneously argued that we should consider his
confession claim de novo, he also mistakenly thinks that we
should review the facts underlying his ex parte jury commu-
nication claim de novo. He cites Weeks v. Angelone, 176 F.3d
249, 263 (4th Cir. 1999), aff’d on other grounds, 528 U.S.
225 (2000), for the proposition that “when a petitioner has
properly presented a claim to the state court but the state
court has not adjudicated the merits, . . . our review of
questions of law and mixed law and fact is de novo.”
Ignoring that Weeks is not binding upon this court, Conner
also overlooks the fact that Weeks addressed a state court’s
failure to address a claim on its merits when the state court
should have done so. This is easily distinguishable from the
18 No. 03-1951
instant case. Here, the post-conviction court made a finding
of pure fact, which obviated the need to rule upon the
substantive merits of Conner’s ex parte jury communication
claim. Thus, AEDPA circumscribes our review of the PCR
court’s factual determination that no ex parte jury commu-
nication occurred during deliberations. Absent a contrary
showing by clear and convincing evidence, this finding is
entitled to our deference, see 28 U.S.C. § 2254(e)(1), and we
need not reach the merits of Conner’s ex parte jury commu-
nication claim.5
The post-conviction court heard and evaluated testimony
from six jurors and two bailiffs regarding the alleged com-
munication. All the jurors who testified acknowledged that
there was some sort of communication which occurred
between at least one juror and a bailiff, but none could
testify definitively as to whether it occurred during delib-
erations. Although some jurors indicated that the communi-
cation concerned sentencing authority, most could not recall
any other salient details (i.e., which juror asked the ques-
tion, which bailiff responded, what the exact content of the
communication was). Juror Carter had the most factually
specific memory of the incident and testified that the bailiff
who responded to the question was white, female, middle-
aged, and heavyset. However, Carter provided conflicting
testimony regarding the timing of the communication, and
when pressed, indicated that she was “pretty sure” it
occurred after all deliberations had concluded.
The two bailiffs’ testimony was substantially similar to
the others’. Both indicated that in 1988, it was policy for the
5
We do note that if we found the PCR court’s factual determina-
tion unreasonable, then we would be free to analyze the substan-
tive merits of this issue de novo (i.e., under pre-AEDPA stan-
dards), as there would be no state court analysis to apply AEDPA
standards to.
No. 03-1951 19
jury to submit any questions it had in writing to the judge,
and for the judge to then address the question. Bailiff
Hurley, a male who was not specifically assigned to the
Conner trial, could not recall any details about the trial.
Bailiff De Moss, the only female bailiff who fit the physical
description given by juror Carter and who was assigned to
the Conner trial, testified that she did not remember
receiving or personally addressing any questions from the
jury. After hearing from all eight witnesses and considering
argument from both Conner and the state, the PCR court
held that no improper communication between the jury and
court personnel occurred during deliberations.
At most, the foregoing evidence demonstrates factual
ambiguity and disagreement regarding the timing of the
alleged communication. Put differently, it certainly does not
amount to clear and convincing proof that any such commu-
nication occurred during penalty-phase deliberations in
violation of Conner’s constitutional right to presence, and
Conner has thus failed to meet his burden under AEDPA.
Because it cannot be said that the post-conviction court’s
factual finding was unreasonable, we need not address the
substantive merits of Conner’s claim. The district court’s
denial of habeas relief with respect to the petitioner’s ex
parte jury communication claim was correct.
3. Ineffective Assistance of Trial Counsel
Finally, Conner argues that his Sixth Amendment right
to counsel was violated because his trial lawyers were
ineffective. The well-known legal principles which govern
such claims were established in Strickland v. Washington,
466 U.S. 668 (1984). For an ineffective assistance of counsel
claim to succeed, a petitioner must show that (1) counsel’s
performance was deficient; and (2) the deficiency prejudiced
his defense. More specifically, in order to be considered
deficient, representation must fall below “an objective
standard of reasonableness.” Id. at 688. The Supreme Court
20 No. 03-1951
has recently “declined to articulate specific guidelines for
appropriate attorney conduct and instead [ ] emphasized
that ‘[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.’ ” Wiggins, 539 U.S. at ___, 123 S. Ct. at 2535
(quoting Strickland, 466 U.S. at 688). In addition, the
performance of counsel under Strickland should be evalu-
ated from counsel’s perspective at that time, making every
effort to “eliminate the distorting effects of hindsight.” Id.
at 2536 (quoting 466 U.S. at 688); see also Kokoraleis v.
Gilmore, 131 F.3d 692, 696 (7th Cir. 1997). With respect to
the prejudice requirement, the petitioner must show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, quoted in Benefiel v. Davis, 357
F.3d 655, 661 (7th Cir. 2004).
As with each of the first two issues addressed, because
this is a habeas petition, we do not apply the Strickland
standards directly, but instead ask whether the post-
conviction court’s factual findings and conclusions pass
AEDPA muster. Since the PCR court correctly laid out the
Strickland test, and since Conner does not point this court
to any United States Supreme Court case which is factually
indistinguishable from his own, he cannot argue that the
PCR court’s determinations were “contrary to” any clearly
established federal law. See 28 U.S.C. § 2254(d)(1).
Furthermore, although Conner does mention (once) the
“reasonableness” standard under § 2254(d)(1), he nowhere
meaningfully challenges the factual findings of the PCR
court. Instead, he simply reiterates and emphasizes the
facts which are most helpful to his claim, and then advo-
cates for a legal conclusion other than that reached by the
PCR court. Conner has not shown by clear and convincing
No. 03-1951 21
evidence that the PCR court’s factual determinations were
unreasonable. See 28 U.S.C. § 2254(e)(1).
Thus, the only question which we need address is whether
the post-conviction court’s application of Strickland was
“unreasonable,” 28 U.S.C. § 2254(d)(1). Under this highly
deferential AEDPA standard, to make a finding of unrea-
sonableness, we must conclude that the PCR court’s de-
terminations were “outside the boundaries of permissible
differences of opinion,” see Hardaway, 302 F.3d at 762,
and/or defy characterization as merely “minimally consis-
tent with the facts and circumstances of the case,” Hennon,
109 F.3d at 335 (emphasis added).
Before turning to the merits of Conner’s argument, we
briefly summarize what the record reveals about defense
counsels’ preparation and strategy with respect to the guilt
and penalty phases of Conner’s trial, and the evidence
which Conner introduced at the post-conviction hearing to
support his ineffective assistance claim.
a. Summary of counsels’ preparation and
strategy
Conner was represented by two court-appointed attorneys
during the guilt and penalty phases, Ricardo Mendez and
Steven Lazinsky. At the time of his trial in 1988, Mendez
had over ten years of criminal experience, including the
representation of capital defendants, and had received
training in capital defense. Lazinsky had prosecuted
murder cases, as well as either prosecuting or defending
approximately twenty Class A and B felony cases.
In preparation for Conner’s defense, the two attorneys
undertook substantial work and consulted with each other
regarding the case. Although Mendez, the attorney who was
initially designated as the lead attorney, did not in fact take
charge of Conner’s case, Lazinsky did fulfill that role. Trial
22 No. 03-1951
counsel sought some assistance from the Indiana Public
Defender Council and visited Conner on several occasions
to discuss his defense.
Counsel timely filed numerous motions, including a
motion to suppress Conner’s confession, perhaps the most
damning piece of evidence against Conner. Other motions
included: funding requests for an investigator and a mental
health evaluation by a psychiatrist of Conner’s choosing,
voir dire requests, a motion to dismiss the death penalty
information, and at least six motions to restrict the prosecu-
tion’s presentation of evidence and argument.
Specifically with respect to Conner’s mental health,
counsel received three reports from three separate eval-
uations. Two court-appointed doctors, Drs. Hull and
Schuster, concluded that Conner suffered from no mental
diseases or defects based upon an examination conducted by
Dr. Fredrickson. A third mental health examination was
later conducted by Dr. King at defense counsels’ request, in
order to explore any potential defenses. Counsel concluded
that Dr. King’s report could not support a mental-health
defense, and none was pursued at trial.
Counsel also requested and received funds for an inves-
tigator. Counsel hired a former homicide detective who had
conducted over 150 homicide investigations. The investiga-
tor looked into Conner’s case and reported back to counsel.
The record also shows that counsels’ theory of defense
during the guilt phase of Conner’s trial was that the pros-
ecution could not prove beyond a reasonable doubt that
Conner had committed all three murders. During trial, de-
fense counsel effectively cross-examined the state’s wit-
nesses and objected to the admission of evidence in order to
create reasonable doubt. Specifically, counsel pointed to
factual disputes regarding Voge’s murder which suggested
that Mark Via, not Conner, may have actually killed Voge.
Likewise, counsel also suggested that Moore was actually
responsible for Wentland’s murder.
No. 03-1951 23
At the penalty phase, counsels’ strategy was to humanize
Conner. Defense counsel argued during opening and closing
arguments that although Conner had in fact killed those
three men in 1988, he should nonetheless be spared.
Conner’s mother, step-father, step-sister, girlfriend, and a
family friend all testified. Specifically, evidence was pre-
sented showing Conner’s alcoholism and other drug prob-
lems; his use of alcohol on the night of the murders; his
background and family issues, including Conner’s adoption,
his much-loved adoptive father’s death early in Conner’s life,
and his step-father’s abuse of alcohol and violent behavior;
Conner’s stable employment history; his good qualities,
including generosity, affection, and concern for his family
and friends; and his relatively minor criminal history. Also
during the penalty phase, counsel conducted effective cross-
examination of the prosecution’s witnesses, objected to the
admission of evidence, pointed out corrections which needed
to be made to the pre-sentence investigation report, and
identified mitigating circumstances.
b. Evidence put forward by Conner at the PCR
hearing
During his PCR hearing, which lasted five days, Conner
presented evidence in support of his ineffective assistance
of counsel claims. In its subsequent order denying post-
conviction relief, the Superior Court correctly characterized
much of this evidence as “cumulative” to that presented by
trial counsel during the guilt and penalty phases. We note
here only the portions of the PCR hearing evidence which
are both non-cumulative and relevant to his ineffective
assistance claim now before this court.
At the PCR hearing, both counsel testified regarding their
respective roles in Conner’s defense. Regarding the coordi-
nation and preparation of Conner’s defense, Lazinsky
testified that initially there was some confusion as to the
24 No. 03-1951
division of responsibility, but that he eventually assumed
control of Conner’s case. And although the two attorneys
never sat down to explicitly divide up tasks, each oversaw
certain aspects of Conner’s defense. While Mendez oversaw
the filing of what he referred to as “stock death penalty
motions,” Lazinsky personally filed other motions as he saw
fit. Mendez was responsible for obtaining an independent
psychiatrist to evaluate Conner, and Lazinsky retained a
private investigator.
Lazinsky testified that he could not recall whether in-
toxication was considered as a defense, or whether man-
slaughter was considered as a lesser-included offense.
Mendez testified that he always considered lesser-included
offenses, such as manslaughter. Lazinsky also expressly
stated that a mental health defense was rejected because
there was a lack of substantive evidence to support such a
claim. Similarly, Mendez testified that Dr. King was not
called to testify because his report was unfavorable.
With respect to counsels’ perceptions of their represen-
tation of Conner, both testified that they did not feel con-
strained or hampered by any political considerations in the
performance of their duties as trial counsel. Mendez also
testified that all funding assistance counsel requested was
provided by the court. He further testified that he felt that
he had utilized all resources he was aware of in preparation
of Conner’s defense. Likewise, although Lazinsky noted that
he was apprehensive about directing a capital defense, he
testified that he believed he pursued all aspects of Conner’s
defense of which he was aware.
The investigator hired by counsel also testified at the
PCR hearing. His investigation had focused on the efficacy
and thoroughness of the investigation conducted by the
police. He interviewed Detective Stamm and witness Dennis
Wolf, and attempted to interview at least four other parties.
Specifically, the investigator testified that he had done all
No. 03-1951 25
he could think to do with respect to the Conner case. He
also indicated that, in his opinion, the case was properly
investigated by the police.
Numerous members of Conner’s family and friends
testified at the PCR hearing. As alluded to earlier, the
testimony—detailing Conner’s close relationship with his
adoptive father, Carl Conner, his immense grief when Carl
died, his strained relationship with his step-father, his step-
father’s drinking and abusive behavior, and Conner’s
positive characteristics—was duplicative of that presented
at trial and during the penalty phase. The only “new”
information presented at the PCR hearing with respect to
Conner’s background was that Conner had learned he was
adopted inadvertently, around age twelve, and he was
deeply upset by this. Also, viewing the testimony of family
and friends at the post-conviction hearing most generously,
it shed additional light upon only two aspects of Conner’s
background: (1) the extent of his step-father’s alcoholism
and its impact on Conner’s home life; and (2) the extent of
Conner’s own abuse of alcohol beginning at an early age.
Conner also had three experts testify at the PCR hearing.
First, Jeanine Jones was qualified as an expert in social
work. Jones testified generally that the death of a parent
will cause a young child to experience feelings of loss,
sometimes accompanied by exaggerated feelings of loneli-
ness and abandonment. Jones further testified that if the
deceased parent is soon thereafter replaced by another
caregiver, a child will often exhibit animosity towards the
new caregiver. Also, Jones indicated that children of alco-
holics will often themselves become alcoholics, and will of-
ten mirror other behaviors exhibited in their home environ-
ment, including violence. Lastly, Jones testified that
children who unexpectedly discover that they are adopted
often have feelings of loss, rejection, and betrayal, and
harbor anger and resentment toward their adoptive parents.
26 No. 03-1951
Second, Dr. David Price was qualified as an expert for-
ensic psychologist. He testified generally about the funda-
mentals of reaching an accurate mental health diagnosis
and how the Diagnostic and Statistical Manual (“DSM”) is
revised over time. Price stated that he reviewed various
documents relevant to Conner’s case, including Conner’s
previous mental health evaluations from 1988 (including
the reports by Drs. Fredrickson, Hull, Schuster, and King),
and personally interviewed Conner on two occasions.
Generally, Price criticized the amount of information Drs.
Fredrickson, Hull, Schuster, and King relied upon. He
offered an opinion that Dr. Fredrickson’s evaluation of
Conner was incomplete and inaccurate. He also opined that
the reports of Drs. Hull and Schuster considered only
whether Conner was sane at the time of the murders and
whether he was competent to stand trial. In particular, Dr.
Price testified that he believed neither doctor considered
the broader question of whether there were any other
diagnosable mental conditions relevant to mitigation. Last,
with respect to Dr. King, Price testified that King “did a
more thorough job.” Price acknowledged that King re-
quested an electroencephalography (“EEG”), assessed lead
levels, and that King’s report discussed Conner’s back-
ground in depth and did, in fact, proffer a diagnosis poten-
tially relevant to mitigation—that Conner had an antisocial
personality and mild pathological intoxication. But Price
also discounted King’s conclusion because King had used
the “outmoded” DSM-3, and not the DSM-3R, which was
available in 1987. However, Price testified that despite
King’s usage of the DSM-3, he nonetheless could not call
King’s diagnosis incorrect.
Price also offered his opinion that Conner “potentially
could have [met the criteria for] thirty-one diagnoses . . .
found under DSM-3R.” Specifically, Price testified that
Conner currently has a “delusional disorder,” a thought
disorder where the subject perceives that he is being perse-
No. 03-1951 27
cuted in a grandiose fashion. Price also stated that Conner
may have three personality disorders, including an organic
personality disorder. Furthermore, Price testified that had
Conner suffered from such a disorder in 1988, his behavior
would have been irrational, impulsive, and unpredictable—
effects which would have been exacerbated by Conner’s
consumption of alcohol.
Third, a toxicology expert, Dr. Michael Evans, testified
that Conner’s blood alcohol content at the time of the
killings was approximately .19, most likely with a range of
.15 and .23. He further testified that when intoxicated, an
individual’s judgment and logical thought processes are
impaired. Specifically, Evans stated that Conner was sub-
stantially impaired at the time of the murders.
c. Analysis of Conner’s ineffective assistance
claim
Conner asserts that counsels’ performance during the
guilt phase of his trial was both deficient and prejudicial
based upon: (1) the decision to limit investigation into
Conner’s mental health; (2) the decision to put the state to
its burden of proof and to seek an acquittal, instead of
presenting the defenses of intoxication or mental illness, or
the lesser-included offense of manslaughter; and (3) myriad
other alleged errors, including an overall lack of prepara-
tion and coordination of his defense; the failure to object to
various pieces of evidence, the jury instructions, and the
state’s closing argument; and the failure to argue in
Conner’s motion to suppress his confession that the confes-
sion was unreliable.
Similarly, Conner asserts that his counsels’ performance
was deficient and prejudicial during the penalty phase of
his trial due to: (1) counsels’ decision to limit investigation
into his mental health and his family background; (2) the
failure to present the mitigating circumstances of intox-
28 No. 03-1951
ication or mental illness; and (3) miscellaneous other
mistakes, including the failure to object to certain evidence
and the jury instructions, as well as counsels’ opening and
closing arguments.
Since Conner’s arguments regarding both phases of his
trial are nearly identical, we will address them together,
assembled into three general categories. First, we address
Conner’s allegation that counsels’ investigation was inade-
quate. Second, we consider counsels’ choice of guilt and
penalty-phase strategy. And third, we briefly discuss the
remaining alleged blunders by counsel.
Because, with one exception, we ultimately conclude the
post-conviction court reasonably found that counsels’ per-
formance was not deficient, we do not address Strickland’s
second requirement, prejudice, with respect to the first two
categories. And as to the third category, which is a veritable
cornucopia of highly particularized complaints, we find that
Conner cannot meet either requirement of Strickland with
respect to alleged errors in defense counsels’ motion
practice and alleged failures to object to certain evidence
and arguments by opposing counsel; nor can Conner meet
the prejudice prong of Strickland with respect to counsels’
failure to object to and/or proffer alternative jury instruc-
tions.
i. Investigation into Conner’s mental health
and family background
With respect to assertions of inadequate investigation as
the basis for an ineffectiveness claim, the principal inquiry
as to Strickland’s deficiency requirement is whether the
investigation, which justified or supported counsels’ sub-
sequent strategic decisions, was in and of itself reasonable.
See Wiggins, 539 U.S. at ___, 123 S. Ct. at 2536. In as-
sessing counsels’ investigation, their performance must be
reviewed objectively, measured against “ ‘reasonableness
No. 03-1951 29
under prevailing professional norms.’ ” Id. (quoting
Strickland, 466 U.S. at 688).
Conner relies primarily upon the Supreme Court’s recent
Wiggins decision to support his argument that counsels’
investigation was objectively unreasonable. In Wiggins, the
Court held that investigation prior to the defendant’s sen-
tencing, with respect to both its scope and depth (i.e., ex-
perts consulted, extent of research into known mitigating
circumstances), fell below established professional stan-
dards of conduct, including the American Bar Association’s
Guidelines for capital defense work. Id. at 2536-38.
Defense counsel’s investigation in Wiggins relied upon
three sources. First, a psychologist determined that the
defendant had an IQ of 79, problems coping with difficult
situations, and exhibited features of a personality disorder.
Second, the presentence investigation report included a one-
page account of the defendant’s personal history, noting his
“misery as a youth,” quoting his description of his own
background as “disgusting,” and observing that he spent
most of his young life in foster care. Third, counsel obtained
the Baltimore City Department of Social Services (“DSS”)
records documenting the defendant’s various placements in
the foster care system. Id. at 2536. Although funds were
allocated by the state court to retain a forensic social
worker, no further inquiries were made, and no social
history was compiled by counsel. In response to the ineffec-
tiveness claim, the state of Maryland asserted that coun-
sel’s limited pursuit of mitigating evidence and counsel’s
ipso facto decision not to present any mitigating evidence at
sentencing (instead arguing that the defendant was not
directly responsible for the murder) was a tactical decision.
Id. at 2533-34.
But the Supreme Court found that counsel deficiently
abandoned their inquiry into the defendant’s background
“after having acquired only rudimentary knowledge of his
history from a narrow set of sources.” Id. at 2537. The Court
reasoned that the DSS records alerted counsel to numerous
30 No. 03-1951
issues (like his mother’s alcoholism and his foster system
record) in the defendant’s background which merited
additional investigation because such was necessary “to
mak[e] an informed choice among possible defenses.” Id. No
evidence was uncovered, the Court emphasized, to suggest
that a mitigation case would have been counterproductive.
And counsel never abandoned the possibility of a mitigation
defense, even entreating the jury at sentencing to consider
“who [the defendant] is” and presenting evidence about the
rehabilitation prospects of the defendant, thereby necessi-
tating counsel to “develop the most powerful mitigation case
possible.” Id. at 2530.
Moreover, at the Wiggins PCR hearing, a licensed social
worker certified as an expert by the court testified that the
defendant had suffered severe sexual and physical abuse at
the hands of his mother and while in the care of a series of
foster parents—a fact the state reviewing court erroneously
found to have been included in the DSS report. Id. at 2539.
In addition, the expert testified about the extreme condi-
tions the defendant endured first in his alcoholic mother’s
home (including being abandoned for days and being forced
to beg for food and eat paint chips and garbage, an incident
where the defendant’s hand was held against a hot stove
burner, and repeated instances where the mother had sex
with men while the defendant slept in the same bed), then
in the homes of various foster parents (repeated physical
abuse, rapes, gang-rape, and molestation), and lastly as a
runaway. Id. at 2532-33. The Court inferred that “[h]ad
counsel investigated further, they may well have discovered
the sexual abuse [and other extreme conditions] later
revealed during state post[-]conviction proceedings.” Id.at
2537. Hence, the Court concluded that counsel’s failure to
investigate thoroughly was the result of inattention, not
reasoned strategic judgment, and held that the Maryland
court’s determination that counsel’s performance had not
been deficient under Strickland was unreasonable. Id. at
2537, 2539.
No. 03-1951 31
Conner’s case is easily distinguishable. First, counsel
did investigate both Conner’s mental history and family
background. In addition to evaluations conducted by two
court-appointed psychiatrists, which found Conner both
competent and sane, counsel obtained funding for an ex-
amination by a psychiatrist of their own choosing, Dr. King.
Dr. King subsequently did evaluate Conner. Counsel
considered Dr. King’s findings and concluded that the re-
port did not conclusively support a mental-health defense
(the wisdom of which we discuss in more detail below).
Second, unlike counsel in Wiggins, who focused upon
challenging the defendant’s guilt during the penalty phase
and failed to elicit more than a scintilla of mitigating evi-
dence despite having promised the jury that evidence about
the defendant’s difficult life would be presented, the focus
of Conner’s counsel throughout the penalty phase was
mitigation—including counsels’ opening statement, presen-
tation of evidence, and closing statement.
Third and relatedly, Conner’s counsel investigated and
then presented extensive testimony during the penalty
phase regarding Conner’s painful family history, alcohol
abuse, adoption, and Conner’s positive qualities. And as we
have previously held, trial counsel is not required to in-
vestigate the defendant’s past with the thoroughness of a
biographer. Stewart v. Gramley, 74 F.3d 132, 135 (7th Cir.
1996).
Fourth, unlike Wiggins, where the PCR hearing revealed
extensive physical and sexual abuse which the court found
was unknown to counsel at sentencing but which likely
would have been discovered by counsel had they not shirked
their investigatory responsibilities, Conner presented very
little evidence at the PCR hearing which was materially
unknown to counsel. With respect to the “new” evidence
which Conner did introduce at the hearing— regarding the
significant impact of Conner’s discovery of his adoptive
32 No. 03-1951
status, the extent of Conner’s step-father’s alcoholism, and
his own use of alcohol—we cannot consider counsel’s failure
to uncover it deficient performance since these facts were at
least referenced and/or generally presented to the jury
during the penalty phase by many of the same testifying
witnesses.6
In summary, we cannot say that the post-conviction court
unreasonably held that counsels’ investigation with respect
to both the guilt and penalty phases of Conner’s trial did
not fall below prevailing professional standards.
ii. Strategic choices
(A) Guilt phase
Counsel challenged the state to meet its burden of proof
at trial and sought an acquittal, in lieu of pursuing a
mental disease or defect or intoxication defense. Counsel
also opted not to advocate for the lesser-included offense of
manslaughter with respect to the killings of Wentland and
Moore.
Consistent with counsels’ strategy, counsel pointed to
eyewitness testimony that suggested Moore was actually
responsible for Wentland’s murder and presented factual
6
And even if it was deficient performance, we could not conclude
that the PCR court’s determination that Conner did not meet the
prejudice prong of Strickland was outside the parameters of
permissible legal opinion because (1) again, this information was
in fact presented, or at least introduced, to the jury, albeit in less
detail, at the penalty phase; and (2) the information is not as
shockingly extreme or graphic in nature as that in Wiggins. As we
stated in Eddmonds v. Peters, 93 F.3d 1307, 1322 (7th Cir. 1996),
“a few more tidbits from the past. . . [thrown] onto the scale would
not have tipped it in [Conner’s] favor.”
No. 03-1951 33
disputes regarding Voge’s murder, indicating that Mark Via
may have been the killer. Clearly, once counsel opted to
challenge whether the state could prove beyond a rea-
sonable doubt that it was Conner who had killed Wentland
and Voge, then counsel would have been hard-pressed to
concomitantly assert with any degree of legitimacy that,
assuming it actually was Conner who committed these two
murders, then he should be held less accountable because
of mental disease or defect, intoxication, or because he was
acting with “sudden heat” (one basis for the lesser offense
of manslaughter, Ind. Code § 35-42-1-3 (1989); see, e.g.,
Olive v. State, 696 N.E.2d 381, 382-83 (Ind. 1998)).
Moreover, we cannot say that the Indiana Supreme
Court’s7 assessment that “counsel was not outside their
bounds of discretion in deciding not to invoke an intoxica-
tion defense when, under the facts of this case and the law
of Indiana, this defense was not likely to be effective[,]” 711
N.E.2d at 1250, was not at least minimally consistent with
the facts and circumstances of this case, or was not at least
one of several equally plausible legal conclusions.8
7
Here, we review the decision of the Indiana Supreme Court,
as opposed to a ruling of the PCR court, because while Conner
clearly raised this argument before the PCR court, we cannot find
any ruling of the PCR court expressly addressing the issue.
8
It should also be noted that the trial court did, in fact, sua
sponte instruct the jury as to intoxication. However, this is largely
irrelevant to our analysis of whether counsel was deficient in
foregoing argument and a more extensive presentation of evidence
at trial as to intoxication based upon an assessment that such a
defense would not likely be successful under Indiana law.
Moreover, that the jury convicted Conner on all three murder
counts notwithstanding the court’s intoxication instruction
strongly indicates that even if it was error for counsel not to prof-
fer an intoxication defense, Conner suffered no prejudice from this
failing.
(continued...)
34 No. 03-1951
With respect to a possible mental disease or defect de-
fense, counsel determined, well within the scope of rea-
sonable professional strategic judgments, that Dr. King’s
evaluation on its face was not conclusively favorable to
Conner and moreover, given the assessments of the three
doctors who also evaluated Conner and found no mental
health problems, a mental-health defense, if pursued, would
open the door to potentially severely damaging rebuttal
testimony from the state. Even the psychologist who
testified on Conner’s behalf at the PCR hearing, Dr. Price,
could not state that Dr. King’s evaluation was incorrect.
Moreover, Dr. Price’s diagnosis was consistent with that
of Dr. King’s, although it was more expansive. Given the
quantum of evidence available to counsel at the time of
trial, which included three reports indicating that Conner
suffered from no mental disease or defect, and considering
that Conner’s own expert at the PCR hearing could not
point to any errors in the report submitted by Dr. King,
counsel were justified in relying upon Dr. King’s report and
in rejecting a mental disease or defect defense.
Next we address counsels’ failure to advocate for the
lesser-included offense of manslaughter with respect to the
killings of Wentland and Moore.9 Under Indiana law, sud-
den heat requires “sufficient provocation to engender . . .
passion.” Olive, 696 N.E.2d at 382. Sufficient provocation is
demonstrated by “anger, rage, sudden resentment, or terror
8
(...continued)
As to Conner’s assertion that the intoxication instruction as
given by the trial court was legal error, we address (and dismiss)
later in this opinion the many alleged problems with the jury
instructions he provides as a basis for his ineffectiveness claim.
9
The lesser offense of manslaughter based upon sudden heat was
a factual impossibility with respect to Voge’s killing, since he was
shot by Conner while laying on a couch, and no prior argument
had transpired.
No. 03-1951 35
that is sufficient to obscure the reason of an ordinary
person, prevent deliberation and premeditation, and render
the defendant incapable of cool reflection.” Id. at 383.
The record evidence does not even remotely indicate that
Conner was acting with “sudden heat” when he killed
Wentland. Evidence showed that it was Moore, and not
Conner, who had been arguing with Wentland. Wentland
attempted to flee the car and called for help, but he was
pursued on foot by Conner who eventually grabbed him,
beat, and stabbed him. These facts are not at all conducive
to a “sudden heat” argument, see, e.g., Ellis v. State, 508
N.E.2d 790, 791 (Ind. 1987) (rejecting the contention that
there was evidence of sudden heat where defendant not
only fatally stabbed the victim, but continued to attack him
as he lay on the ground). Consequently, the Indiana
Supreme Court10 did not unreasonably determine that trial
counsels’ decision to forego any request for a manslaughter
instruction as to Wentland’s murder did not fall below
prevailing professional standards.
However, with respect to Moore’s killing, we do find that
the Indiana Supreme Court unreasonably held that Conner
failed to demonstrate that trial counsels’ decision to forego
argument in support of manslaughter as a lesser-included
offense was not deficient. The irrefutable facts presented at
trial by the state of Indiana foreclosed any argument
disputing that Conner killed Moore. And not surprisingly,
at trial, Conner’s counsel did not attempt to cast doubt upon
Conner’s responsibility for this crime. In essence, given that
counsel—within the scope of their professional strategic
judgment, see supra—opted to forego an intoxication or
10
Again, see supra note 7, we review the decision of the Indiana
Supreme Court because, while Conner did indeed raise this ar-
gument before the PCR court, no ruling of the PCR court ex-
pressly addressed the issue.
36 No. 03-1951
mental health defense, no discernible theory of defense as
to Moore’s killing was presented at trial. Hence, it was
deficient for defense counsel not to advocate for manslaugh-
ter based upon “sudden heat,” if such an argument was at
all plausible.
Moore was killed, according to Conner, during the course
of a heated argument between Conner and Moore regarding
the appropriate course of action for the two to take follow-
ing Wentland’s murder. Moore wielded a knife at some
point during the confrontation. And indisputably, Conner
had been drinking heavily prior to the killings. Clearly, had
defense counsel requested a “sudden heat” manslaughter
instruction, the trial court would have been legally obli-
gated to so instruct the jury. See, e.g., Griffin v. State, 644
N.E.2d 561, 562 (Ind. 1994) (stating that the evidentiary
standard used to determine whether a defendant charged
with murder is entitled to an instruction on voluntary
manslaughter is “not a high one: the instruction is justified
if there is any appreciable evidence of sudden heat”)
(quotation omitted). Therefore, counsels’ failure to do so was
deficient, Conner met his burden with respect to Strickland ’s
first requirement, and the Indiana Supreme Court’s
contrary determination is objectively unreasonable.
Notwithstanding this determination, we also find that the
Indiana Supreme Court reasonably concluded that Conner
did not meet his burden as to Strickland’s second require-
ment—that he was prejudiced by counsels’ aforementioned
unprofessional error. In short, Conner failed to demonstrate
that the jury would not have convicted him of murder even
if counsel had proffered a “sudden heat” manslaughter
instruction and if the trial court had given the instruction
in its charge to the jury. The prosecution put forth over-
whelming evidence showing that Moore’s rationality and
self-preservation impulse were not overcome by emotion on
the day of the killings. For instance, when Conner told his
employer that he “had to off [Moore]” immediately following
No. 03-1951 37
the shooting, his demeanor was not that of someone over-
come by rage, anger, or any other emotions. In addition,
Conner took numerous steps to cover up his crimes, includ-
ing enlisting friends to help dispose of Moore’s body and
then fleeing the state. Even if we disagreed with the state
Supreme Court’s determination that Conner failed to meet
his burden to show a probability undermining confidence in
the outcome, certainly the evidence presented at trial was
such that we cannot now say that this ruling was outside
the boundaries of permissible differences of legal opinion.
In summary, aside from our discussion of counsels’ failure
to advocate for the lesser-included offense of manslaughter
with respect to Moore’s killing, the PCR court’s and Su-
preme Court’s conclusions that counsels’ trial strategy was
not deficient is at least minimally consistent with the facts
and circumstances of this case, and hence, is not unreason-
able. And regarding counsels’ deficiency with respect to
Moore’s killing, we find that the Indiana Supreme Court
did not unreasonably hold that Conner failed to demon-
strate he was prejudiced by counsels’ failing.
(B) Penalty phase
Turning next to the penalty phase, as explained in detail
above, counsels’ strategy was to “humanize” the defendant.
This was a legitimate strategy in a difficult case. For the
same reasons we noted above, counsel did not fall below
minimum prevailing professional standards when counsel
determined not to pursue mental disease or defect as a
mitigating factor. And regarding intoxication and Conner’s
family life, the record shows that counsel in fact offered
extensive evidence of his alcohol dependency, his consump-
tion of alcohol on the day of the murders, and detailed
descriptions of his background from numerous witnesses.
Conner’s argument as to these two aspects of counsels’
penalty-phase presentation amounts to an assertion that
38 No. 03-1951
counsel did not present enough mitigating evidence. But we
must be particularly wary of such arguments, which
essentially come down to a matter of degrees, and are not
well-suited to judicial second-guessing. See Dowthitt v.
Johnson, 230 F.3d 733, 743 (5th Cir. 2000), cert. denied, 532
U.S. 915 (2001). In short, we find the PCR court reasonably
determined that Conner’s counsel were not deficient in
pursuing a “humanizing” or mitigation strategy during the
penalty phase, which included evidence of intoxication and
his family background, but omitted mental health evidence.
iii. Other complaints
Conner asserts in summary fashion all sorts of errors by
counsel as to motions practice, the failure to object to cer-
tain testimony and portions of the state’s guilt and penalty-
phase closing arguments, as well as the failure to object to
or proffer alternative jury instructions at both phases of
trial. To put it simply, with respect to the complaints re-
garding motions practice and alleged failures to object to
certain evidence and opposing counsel’s arguments, it is
impossible for us to say that the PCR court unreasonably
held that Conner failed to meet his burden to show either
counsels’ deficiency or, even assuming error, any discern-
able prejudice. See, e.g., United States v. Mutuc, 349 F.3d
930, 935 (7th Cir. 2003) (“[c]onsidering that a motion in
limine is sought to aid counsel in formulating his trial
strategy, the decision regarding whether to file such a
motion is clearly part of the process of establishing trial
strategy,” and because strategy decisions are presumed
sound, simply the failure to make a motion or the affirm-
ative filing of a motion, without more, is insufficient to
demonstrate deficiency); United States v. Hernandez-Rivas,
348 F.3d 595, 601 (7th Cir. 2003) (stating “where an attor-
ney’s mistake resulted in the admission of evidence that
would have otherwise been suppressed, the outcome of the
trial does not become any less reliable”) (citing cases).
No. 03-1951 39
However, we will address at greater length the extensive
number of alleged errors by counsel vis à vis both the guilt
and penalty-phase jury instructions (i.e., complaints that
counsel failed to tender instructions to the court and that
counsel failed to object to allegedly improper instructions
used to charge the jury). Critically, the propriety of the jury
instructions was directly raised, considered, and subse-
quently rejected in Conner’s post-conviction attack. The
state Supreme Court11 specifically found that (1) because
Conner could have challenged the jury instructions in his
direct appeal, but did not, these claims were forfeited,
except to the extent that a fundamental error occurred; and
(2) the instructions as given did not, in toto, amount to
fundamental error. Conner II, 711 N.E.2d at 1246-47. In his
habeas petition, Conner again challenged various portions
of the guilt and penalty-phase jury instructions, including
every error now alleged before this court. Conner III, 259 F.
Supp. 2d at 760-61. The district court rejected all these
claims, holding: (1) the claims were procedurally defaulted
for habeas purposes because Conner failed to raise them in
his direct appeal, Id. at 760 (citing Conner II, 711 N.E.2d at
1246); (2) neither exception to procedural default applied;
and (3) therefore, the court need not consider whether, on
the merits, Conner was entitled to a writ based on the jury
instructions. Id. at 761.
In the instant appeal, perhaps understanding the reality
of procedural default, Conner does not challenge the portion
of the district court’s holding which addressed his direct
challenges to the jury instructions. Instead, Conner has
shoe-horned these challenges into his ineffective assistance
of counsel claims, and apparently hopes to have us consider
his various protestations as to the propriety of the jury
instructions on the merits, despite procedural default. We
decline to do so.
11
For the same reasons we laid out in note 7, supra, here again we
focus our analysis on the Indiana Supreme Court’s rulings.
40 No. 03-1951
Furthermore, because the Strickland standard and the
one exception to procedural default potentially applicable to
Conner’s habeas petition both necessitate a finding of
prejudice, even if the merits of Conner’s ineffective assis-
tance of counsel claim are addressed, there is no reason to
depart from the district court’s (unappealed) determination
below that Conner suffered no prejudice from any alleged
errors in the guilt or penalty-phase jury instructions. As we
explained many pages ago, when a claim is procedurally
defaulted, a federal court can nonetheless consider the
claim on its merits if a habeas petitioner demonstrates
either (1) cause and actual prejudice; or (2) a colorable
claim of actual innocence (a basis not readily at issue here,
see Conner III, 259 F. Supp. 2d at 761). See, e.g., Coleman,
501 U.S. at 750. In Conner III, the district court bypassed
an analysis of the “cause” requirement, expressly held that
“[t]he instructions to which Conner objected in Conner II,
when viewed in conjunction with other pertinent instruc-
tions, did not misinform the jury of its duty nor misstate
the law[,]” and concluded—echoing the state Supreme
Court’s similar conclusion—that Conner therefore had not
shown prejudice stemming from the guilt or penalty-phase
jury instructions. 259 F. Supp. 2d at 761.
Jury instructions are properly considered in their entirety
whether alleged as the basis for overcoming procedural
default, or as the basis for an ineffective assistance of
counsel claim. See Cupp v. Naughten, 414 U.S. 141, 146-47
(1973), cited in Perry v. McCaughtry, 308 F.3d 682, 689 (7th
Cir. 2002), and Conner III, 259 F. Supp. 2d at 761. Therefore,
the prejudice analysis laid out by the district court with
respect to procedural default is herein dispositive as to
Conner’s (in)ability to make the requisite showing of
prejudice under Strickland, absent some salient argument
by Conner to the contrary. Conner proffers no such argu-
ment, instead simply lists the guilt and penalty-phase jury
instructions he takes issue with, and then conclusively
No. 03-1951 41
asserts that the instructions are both unconstitutional and
prejudicial. We are unpersuaded by this, and find no reason
to upset the district court’s conclusion that, when viewing
the instructions as a whole, Conner failed to demonstrate
that he suffered any prejudice from the alleged errors in the
instructions (irrespective of whether we would attribute
such errors to counsel).
In conclusion, we do not agree with Conner that counsels’
performance was deficient in any of the respects addressed
above—motions practice, the failure to object to evidence or
opposing counsel’s arguments, or the failure to object to or
proffer alternative jury instructions. Furthermore, even if we
did conclude that counsel was deficient in any of the afore-
mentioned ways, we still could not deem the PCR court’s
and the Indiana Supreme Court’s conclusions—that Conner
did not demonstrate that all these errors created a reason-
able probability undermining confidence in the outcome of the
trial or penalty phases—unreasonable.
We therefore agree with the district court’s denial of
habeas relief with respect to Conner’s ineffective assistance
of trial counsel claim, finding that counsel was not deficient
in either their investigation or choice of strategy, holding
that counsel’s alleged failures to object to evidence and
argument were not unprofessional errors or the cause of
prejudice to Conner, and further concluding that Conner
suffered no prejudice from any alleged errors in either the
guilt or penalty-phase jury instructions.
III. Conclusion
To summarize, the district court’s denial of Conner’s
petition for a writ of habeas corpus as to (1) the admissi-
bility of his confession; (2) the ex parte jury communication;
and (3) the assistance of trial counsel is AFFIRMED.
42 No. 03-1951
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-20-04