Woods, David L. v. McBride, Daniel ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1776
DAVID LEON WOODS,
Petitioner-Appellant,
v.
DANIEL R. MCBRIDE, Superintendent,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 99-520-C-M/S—Larry J. McKinney, Chief Judge.
____________
ARGUED JANUARY 20, 2005—DECIDED NOVEMBER 30, 2005
____________
Before BAUER, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. In the early morning of April 7,
1984, David Woods and two cohorts, Greg Sloan and Pat
Sweet, concocted a scheme to steal a television. A few hours
later, Woods, Sloan, and Sweet went to the apartment of
seventy-seven-year-old Juan Placencia, an acquaintance of
Woods’s mother. Woods was armed with a knife, although
he assured Sloan and Sweet that he intended only to scare
Placencia with it. But when Placencia opened his front door,
Woods immediately jumped inside and stabbed Placencia
repeatedly. Placencia fell back into a chair, pleading for his
life. Placencia’s pleas did him no good. After Woods took
$130 from Placencia’s wallet, he continued to stab the
elderly man—a total of twenty-one times to the face, neck,
2 No. 04-1776
and torso. An autopsy later determined that Placencia died
from at least three stab wounds to the heart and a wound
to the skull that pierced through to his brain.
Woods and Sloan departed Placencia’s apartment with the
cash and television in hand. They hid the television in a
trash bin and later sold it for $20. They also washed the
clothes they were wearing during the robbery and disposed
of the knife and other incriminating items in a nearby
creek.
Shortly after the discovery of Placencia’s body, Woods was
arrested and charged with murder and robbery. An Indiana
state court jury found Woods guilty of both, and the trial
court sentenced Woods to death. Woods’s convictions were
affirmed on direct appeal in Woods v. State, 547 N.E.2d 772
(Ind. 1989) (Woods I). A second opinion, issued on rehear-
ing, affirmed Woods’s convictions and sentence of death. See
Woods v. State, 557 N.E.2d 1325 (Ind. 1990), cert. denied,
501 U.S. 1259 (1991). Woods filed a petition for post-
conviction relief (“PCR”), which the Indiana PCR court
denied. The Indiana Supreme Court affirmed the PCR
court’s denial of relief in Woods v. State, 701 N.E.2d 1208
(Ind. 1998) (Woods II), cert. denied, 528 U.S. 861 (1999).
Woods then filed a petition pursuant to 28 U.S.C. § 2254 for
a writ of habeas corpus, which the district court denied.
Woods v. Anderson, 302 F. Supp. 2d 915 (S.D. Ind. 2004).
In this appeal, Woods advances three issues: (1) whether
Woods was denied due process because he was not compe-
tent at trial;1 (2) whether Woods’s trial counsel failed
adequately to gather, marshal, and present mitigating
evidence at the penalty phase, thus denying Woods effective
assistance of counsel; and (3) whether Woods’s due process
1
As discussed below, Woods also brings a related claim that
his trial counsel rendered constitutionally ineffective assistance
with regard to his competence.
No. 04-1776 3
rights were violated when he was granted post-conviction
counsel but not the opportunity to air his concerns that he
had an “actual conflict of interest” with his appointed PCR
counsel.
For the reasons that follow, we affirm.
I. Discussion
We take Woods’s questions in turn, but first we briefly
recap the relevant legal standards that guide our review.
Woods’s habeas petition is governed by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). The writ is not easy to come
by—section 2254 authorizes issue of the writ only if the
challenged decision of the state court “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” § 2254(d)(1), or “was based on an unreason-
able determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d)(2).
“Contrary to” means that a federal court may grant the
writ only if the state court arrives at a conclusion opposite
that reached by the Supreme Court on a question of law, or
if the state court decides a case differently than the Su-
preme Court on a set of materially indistinguishable facts.
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The
“unreasonable application” prong in particular is difficult to
show—“unreasonable” in this context means “something
like lying well outside the boundaries of permissible
differences of opinion.” Hardaway v. Young, 302 F.3d 757,
762 (7th Cir. 2002); see also Jackson v. Frank, 348 F.3d 658,
662 (7th Cir. 2003) (“We have held that under this criterion,
habeas relief should not be granted if the state court
decision can be said to be one of several equally plausible
outcomes.”). In the habeas context, an “unreasonable”
application is more than simply an “incorrect” application,
4 No. 04-1776
so “a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Wil-
liams, 529 U.S. at 411. Rather, in order to trigger grant of
the writ, the state-court decision must be both incorrect and
unreasonable. See Moore v. Casperson, 345 F.3d 474, 490
(7th Cir. 2003) (citations omitted).
In addition, a state court’s factual determinations are
presumed to be correct, and a petitioner bears the burden
of rebutting this presumption by clear and convinc-
ing evidence. See Conner v. McBride, 375 F.3d 643, 649 (7th
Cir. 2004). In reviewing the district court’s denial of the
petition, we review the court’s findings of fact for clear error
and the court’s legal conclusions de novo. See Richardson v.
Briley, 401 F.3d 794, 799 (7th Cir. 2005) (citations omitted).
A. Competency
First, Woods’s competency claim. Whether a defendant is
competent depends on whether he “has sufficient present
ability to consult with his lawyer with a reasonable degree
of rational understanding—and whether he has a rational
as well as factual understanding of the proceedings against
him.” Dusky v. United States, 362 U.S. 402, 402 (1960). It is
well established that the due process clause of the Four-
teenth Amendment prohibits the states from trying and
convicting mentally incompetent defendants. See Pate v.
Robinson, 383 U.S. 375, 384-85 (1966); see also Cooper v.
Oklahoma, 517 U.S. 348, 354 (1996) (noting that the
Supreme Court has “repeatedly and consistently recognized
that ‘the criminal trial of an incompetent defendant violates
due process’ ” (quoting Medina v. California, 505 U.S. 437,
453 (1992))); Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th
Cir. 1996) (“The Constitution forbids trial of one who, for
whatever reason, is unfit to assist in his own defense
No. 04-1776 5
because our adversarial system of justice depends on
vigorous defenses.”).
A defendant is entitled to a hearing on his competency if a
bona fide doubt arises about his ability to consult with his
attorney or his understanding of the charges brought
against him. Drope v. Missouri, 420 U.S. 162, 180 (1975);
Pate, 383 U.S. at 385. Likewise, a trial judge must inquire
sua sponte into a defendant’s mental state if events in court
call into question the defendant’s competency. See
Timberlake v. Davis, 409 F.3d 819, 822 (7th Cir. 2005).
As set forth in his brief, Woods claims that “the exact
question at issue[ ] is Woods[’s] ability to assist his counsel
during trial, specifically during jury selection, due to his
inability to remain awake caused by an antipsychotic
medication which drugged him into incoherent somnolence.”
(Pet. Br. at 14.) In short, Woods claims that he was unable
to assist his counsel during voir dire on the second day of
his trial, because he was unable to stay awake and there-
fore not competent to stand trial.
Before we address the substance of Woods’s competency
claim, we must first recount the events leading up to
Woods’s in-court somnolence. Prior to trial, Woods’s trial
counsel filed a suggestion of incompetence alleging that
Woods was unable to remember particular events of the
crime charged. In response, the trial court appointed Drs.
Alan LaClave and William Shipley to examine Woods
shortly before the scheduled start of trial. Following
examinations, both doctors reported Woods competent,
and the trial court determined that no competency hear-
ing was required pursuant to Indiana Code § 35-36-3-1.
Woods had the opportunity to present to the court his own
independent evaluations from experts he had hired, but
he declined to do so—apparently because of confiden-
tiality concerns.
In the days leading up to trial, Woods exhibited anxiety
and difficulty sleeping. A nurse or other medical official
6 No. 04-1776
at the jail in which Woods was being detained prescribed
Elavil, an anti-depressant, psychotropic drug that causes
drowsiness as a side effect. During lunch break on the day
of trial in question, Woods took Elavil. Sure enough,
drowsiness set in, and Woods had great difficulty remaining
awake during the afternoon session of voir dire, despite the
best efforts of his counsel to keep him awake—including,
apparently, pinching and kicking Woods. Eventually, at a
break in the voir dire when the jury pool had left
the courtroom, Woods’s trial counsel moved for a continu-
ance because of Woods’s condition.
The trial court conducted a short hearing on this motion,
in which Woods himself testified to his difficulty remain-
ing awake due to lack of sleep and the prescribed Elavil.
In addition, Woods’s counsel argued that there was a
risk that jurors would interpret Woods’s drowsiness as a
lack of interest or concern about the trial.
The trial court granted the motion for a continuance
and, when the jury returned to the courtroom, adjourned
proceedings for the remainder of the day. The judge made
the following statement to the jury by way of explanation:
Lots of times in matters that come before the court,
there are things that occur that are not anticipated by
anybody. It’s the fault of none of the lawyers or the
parties or anything else but when these things occur,
we have to deal with them. . . . [A] situation . . . has
arisen through the fault of no one at all but at lunch-
time, Mr. Woods saw a physician and at that time there
was a prescription medication approved for him to take.
He has taken that medication and the result is that he’s
experiencing some problems with drowsiness. Now I
think as the trial judge in this case, that everyone
needs to be treated fairly and that in order for him to
participate and work with his attorneys, he needs to be
awake and not be dozing off over there and the fact that
he’s dozing off is not his fault; it’s not anybody else’s
fault; it’s just something that’s happened. So, what
No. 04-1776 7
we’re going to do is we’re going to stop our proceedings
for the day and we—arrangements have been made so
that this won’t be something that we’ll have to deal
with after today . . . .[I]n the morning . . . we’ll take up
where we’re leaving off and I’m sorry that we have to do
this but we just do because we want everything to be
handled properly and I think that you can understand
that too.
(Tr. at 1492-94.) The trial resumed the following day, and
as far as we can tell from the record, Woods suffered no
further episodes of sleeping in court for the remainder of his
trial.
Despite the events recounted above, Woods contends
that he was denied due process because he was incompetent
during voir dire (that is, he was unable to assist counsel in
his defense because he kept nodding off) and perhaps
throughout the remainder of trial and the penalty phase.
But we disagree that Woods suffered a constitutional due
process violation, and we find no error in the state court’s
determination that Woods was competent to stand trial.
Woods’s due process argument rests on two related
and flawed premises. First, as a procedural matter, Woods
contends that his drowsiness during voir dire should have
triggered a hearing on his competency to stand trial.
Second, as a substantive matter, he suggests that he was in
fact incompetent to stand trial, and his trial and conviction
therefore violated his constitutional rights.
As to Woods’s procedural argument, we find no constitu-
tional error in the manner in which the trial court re-
sponded to Woods’s drowsiness during voir dire. Woods
holds fast to the notion that the trial court should have
proceeded to a full-blown competency hearing as soon as
Woods’s drowsiness became apparent. E.g., Drope, 420 U.S.
at 180-81; accord Walker v. Attorney Gen. for the State of
Oklahoma, 167 F.3d 1339, 1343 (10th Cir. 1999). But it is
8 No. 04-1776
unclear what such a hearing would have accomplished. The
purpose of a hearing is to resolve factual disputes. But
nobody disputed that Woods was having difficulty remain-
ing awake. As already noted, it was clear to counsel for both
sides and the trial court, that Woods kept falling asleep and
thus could not assist in voir dire that afternoon. Woods’s
“incompetence” at the times he dozed is unquestioned,
which is precisely the reason that the trial court granted a
continuance following a hearing on the causes of Woods’s
drowsiness. Put another way, the trial court did in fact have
a bona fide doubt that Woods could assist his counsel or
understand the proceedings while he slept during a portion
of voir dire, and the court undertook an appropriate proce-
dure to address the issue.
As for Woods’s assertion that he suffered prejudice
when jurors witnessed him dozing through portions of voir
dire, the trial court specifically addressed this concern when
the judge explained why he was adjourning voir dire early
and stressed that Woods was not at fault. Like the district
court, we conclude that Woods has identified no procedural
deficiency in the trial court’s response to Woods’s somno-
lence. Moreover, we note that Woods made no objection to
the jury that was eventually empaneled, nor did he move to
strike any jurors that may have passed muster during voir
dire while he dozed.
As for Woods’s substantive argument, as discussed above,
we agree that Woods was, strictly speaking, “incompetent”
at the times he was asleep. It is beyond dispute that a
slumbering defendant cannot be said to be capable of doing
much of anything, let alone exhibiting the present ability to
assist in his own defense. But there is a big difference
between the sort of temporary incompetence stemming from
Woods’s Elavil-induced drowsiness during voir dire and the
sort that would render Woods incapable of standing trial
altogether. As detailed above, Woods’s drowsiness, which he
concedes was due to Elavil and lack of sleep, did not on its
No. 04-1776 9
own indicate incompetence stemming from causes that his
pre-trial examinations failed to reveal. To the extent that
Woods now suggests that his drowsiness may have been
symptomatic of other, undisclosed causes that rendered
Woods incompetent to stand trial, he provides no argument
in support of this suggestion, nor does the record support
such a claim here.
Looking beyond Woods’s episode of drowsiness during voir
dire, we are confident that the determinations of compe-
tency throughout the various stages of this case in the state
courts are amply supported by the record and not improper.
As mentioned, the trial court determined, on the basis of
the evaluations of two court-appointed doctors who reported
that Woods was competent to stand trial, that there were no
reasonable grounds to justify a competency hearing under
Indiana law. Although Woods apparently was maintained
on Elavil for the remainder of his trial, the record indicates
measures were taken at the jail to administer the drug to
Woods only in the evenings at lights-out, not during the day
at trial. And even though Woods limits his competency
argument to the voir dire, we find no evidence to indicate
that Woods slept throughout the remainder of the stages of
his trial.
At any rate, our confidence on the issue of Woods’s
competency at trial is bolstered by the fact that the trial
court did order a competency hearing, albeit following
the penalty phase but prior to sentencing. Cf. Galowksi v.
Berge, 78 F.3d 1176, 1180-81 (7th Cir. 1996) (noting that
retrospective competency hearings, while not ideal, are
not inherently improper); see also Young v. Walls, 311
F.3d 846, 848 (7th Cir. 2002). At this hearing, Drs. LaClave
and Shipley each testified that they had interviewed Woods
and concluded that Woods understood the charges against
him and the roles of the prosecutor, defense counsel, and
the court. The doctors also testified that Woods could
sufficiently communicate with his attorneys because he was
10 No. 04-1776
able to generate his own ideas as well as understand and
evaluate the ideas of others; in short, they reiterated their
earlier conclusion that Woods was competent. The hearing
also incorporated the trial testimony of professionals who
had examined Woods and testified to his chronic lack of self-
esteem and depression. After consideration of all of this
evidence, coupled with the court’s own observations of
Woods’s demeanor, the court concluded that Woods was
competent. The Indiana Supreme Court agreed, concluding
that the record provided a clear and reasonable basis for the
trial court’s decision not to hold a full competency hearing
prior to trial and for the post-trial determination of compe-
tency. See Woods I, 547 N.E.2d at 788.
Woods challenges the pre-trial and post-trial determina-
tions of competency because, he believes, they failed to
address the reasons for his “incompetency” during voir dire.
That may be so, but for the reasons discussed at length
above, it is also irrelevant. The trial court appropriately
responded to Woods’s Elavil-induced drowsiness by continu-
ing the voir dire and addressing the jury. There is no
indication that uncontrollable drowsiness or other sugges-
tion of incompetency reared its head in a similar manner
during the remainder of trial. We find no error in the way
in which the trial court handled Woods’s episode of somno-
lence, nor does the record offer any reason to conclude that
its competency determinations were erroneous or unreason-
able given the court’s first-hand observation of Woods
throughout trial. Cf. Timberlake, 409 F.3d at 823-24. In
sum, we agree with the district court’s conclusion that the
state court’s determination of competency is a factual
determination entitled to deference, see Foster, 741 F.2d at
1011, and Woods has not shown any factual error by clear
and convincing evidence. See Conner, 375 F.3d at 649. In
addition, our own review of the record and the arguments
advanced by Woods supports the conclusion that Woods was
competent to stand trial, and thus there was no due process
error on that score.
No. 04-1776 11
Before moving on, we address Woods’s assertion that
he received ineffective assistance of counsel with respect to
his drowsiness at voir dire.2 Woods invokes this argument
almost as an afterthought, contending that his trial counsel
was constitutionally defective because “it was error to
conclude that Woods was afforded a hearing at which his
competence on February 20th [the day of voir dire in
question] could be determined, and it was error to allow the
trial to continue while Woods was so affected by anti-
psychotic medication that he slept in open court.” (Pet.
Reply at 8-9.) Thus, Woods argues, “it is axiomatic that the
performance of Woods’ counsel at trial in allowing this to
happen fell below the prevailing norm of professional
services and adversely affected Woods because he was
prevented from giving any input into jury selection.” (Id. at
9.)
Again, we disagree. Our evaluation of Woods’s counsel’s
performance is guided by Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland, Woods must demon-
strate that his counsel’s performance was deficient and that
the deficient performance prejudiced him. See id. at 687.
His counsel’s performance is deficient if it falls below an
“objective standard of reasonableness” under “prevailing
professional norms.” Id. at 688. We view counsel’s perfor-
mance deferentially, with the understanding that there is
a great deal of room for disagreement among reasonable
attorneys as to the appropriate strategy or tactics to employ
in the course of representation, so we indulge the “strong
presumption that counsel rendered reasonably effective
assistance.” Ashford v. Gilmore, 167 F.3d 1130, 1134 (7th
2
This aspect of Woods’s competency claim was not set forth in
the certificate of appealability. Nevertheless, as the Respondent
does not object, and in the interest of thoroughness, we undertake
review of this claim, as well. See Dellinger v. Bowen, 301 F.3d 758,
765 (7th Cir. 2002).
12 No. 04-1776
Cir. 1999) (citations omitted). To show that his counsel is
constitutionally defective, Woods must show more than that
his counsel made poor decisions. Woods must show that his
counsel’s performance was so substandard that it could not
reasonably be said to have functioned as “counsel” in the
manner required by the Sixth Amendment. Eddmonds, 93
F.3d at 1313 (citing Strickland, 466 U.S. at 687). Further-
more, to establish prejudice, Woods must show “a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent” and that counsel’s unprofessional errors “undermine[d]
confidence in the outcome.” Strickland, 466 U.S. at 694.
Simply put, Woods has not shown that his trial counsel
was not up to constitutional par. As previously discussed,
there is no indication in the record that Woods continued to
display drowsiness after the day in question, so it cannot
accurately be contended that Woods’s counsel blithely
pushed forward with trial even as Woods slumbered. What
is more, we cannot see how Woods’s counsel acted inappro-
priately in moving for a continuance when it became
apparent that Woods could not remain awake. Although it
could be argued, as Woods does, that his trial counsel
should have pushed for a full competency hearing in light
of his drowsiness, it is far from clear that the trial court
would have granted such a request in light of the pre-trial
evaluations and determination that Woods was competent
(or, for that matter, that the outcome would have been any
different if the court had held such a hearing). Cf. Galowski,
78 F.3d at 1180; Eddmonds, 93 F.3d at 1316-17. In addi-
tion, as already discussed, the trial court responded appro-
priately and took steps to minimize the risk that jurors
would hold Woods’s drowsiness against him. And, also
discussed, Woods presented no support in his state court
appeal or here that counsel’s alleged failure properly to
react to his drowsiness during voir dire infected the jury
selection process such that any juror was improperly
selected or empaneled.
No. 04-1776 13
In short, we conclude that the performance of Woods’s
counsel was not constitutionally defective with respect
to their response to Woods’s drowsiness. Even if counsel’s
performance was substandard, Woods has not shown
prejudice from his counsel’s failure to argue for a compe-
tency hearing in response to his pronounced drowsiness
at voir dire. Cf. Young, 311 F.3d at 848 (counsel’s failure to
ask for a competency hearing prior to trial was not prejudi-
cial given the court’s finding of competency made at post-
trial competency hearing). The Indiana courts’ rejection of
Woods’s competency claims were neither unreasonable nor
contrary to clearly established federal law, and the district
court properly denied relief on all aspects of Woods’s
competency claims.
B. Mitigation
Woods next argues that his trial counsel was constitution-
ally infirm for failing to present persuasive mitigating
evidence during the penalty phase of his trial under
standards established in Williams v. Taylor, 529 U.S. 362
(2000), and Wiggins v. Smith, 539 U.S. 510 (2003).
Again, we turn to Strickland to guide our analysis of
Woods’s ineffective assistance claims. See Hall v. Washing-
ton, 106 F.3d 742, 749 (7th Cir. 1997) (“Resolution of a
claim of ineffective assistance of counsel at the penalty
phase of a capital trial, like other claims of ineffective
assistance, involves two elements: performance and preju-
dice.”); see also Ashford v. Gilmore, 167 F.3d 1130, 1135 (7th
Cir. 1999). In the capital sentencing context, however, the
prejudice prong involves a slightly different inquiry:
“whether there is a reasonable probability that, absent
[counsel’s] errors, the [jury] . . . would have concluded that
the balance of aggravating and mitigating circumstances
did not warrant death.” Hough v. Anderson, 272 F.3d 878,
891 (7th Cir. 2001) (quoting Strickland, 466 U.S. at 695). As
14 No. 04-1776
always, there remains “the strong presumption” that trial
counsel rendered adequate representation. See Bieghler v.
McBride, 389 F.3d 701, 708 (7th Cir. 2004).
Woods argues that the Indiana Supreme Court’s resolu-
tion of this precise claim was both contrary to and an
unreasonable application of Supreme Court precedent,
because the state court erroneously applied Lockhart v.
Fretwell, 506 U.S. 364 (1993), rather than Strickland v.
Washington, 466 U.S. 668 (1984). For its part, the district
court expressed doubt that the Indiana Supreme Court’s
citation to Fretwell was sufficient to establish that the
court’s disposition of Woods’s ineffective assistance claim
was in fact “contrary to” Supreme Court authority. Woods,
302 F. Supp. 2d at 930 n.2. But the district court neverthe-
less found that de novo review of Woods’s claim yielded the
same conclusion—that Woods was unable to show he
suffered prejudice as a result of his counsel’s performance.
See id.
We see nothing wrong with the district court’s analysis.
If anything, the district court acted out of an abundance
of caution, for our review of the Indiana Supreme Court’s
reasoning reveals that the court not only correctly identified
Strickland as the appropriate legal standard, it also set
forth the appropriate Strickland prejudice test, applied that
test, and concluded that Woods failed to meet it. Woods II,
701 N.E.2d at 1224-25 (“[W]e assume, without deciding,
that Woods[’s] . . . trial counsel’s performance fell below
prevailing professional norms in one or more respects.
Woods nonetheless must show reasonable probability of a
different result but for the alleged errors.”).
True, the court cited Fretwell, but only to the extent that
the court concluded that Woods’s claim likewise failed
to meet Fretwell’s “fundamentally unfair or unreliable
result” prejudice test. See Woods II, 701 N.E.2d at 1225. We
do not read the state court’s reasoning as resting on
No. 04-1776 15
Fretwell, nor did the court conclude that Fretwell had
somehow supplanted Strickland as the appropriate stan-
dard for ineffective assistance claims, so we will not reverse
on that ground. Cf. Floyd v. Hanks, 364 F.3d 847, 852-53
(7th Cir. 2004) (concluding that state court properly
considered and applied Strickland prejudice test, despite
reference to “reliability” as used in Fretwell); Winters v.
Miller, 274 F.3d 1161, 1167-68 (2001) (concluding that state
court’s erroneous application of Fretwell did not require
reversal of conviction because de novo review under Strick-
land standard rendered the same result). But see Washing-
ton v. Smith, 219 F.3d 620, 632-33 (7th Cir. 2000) (finding
that state court erroneously substituted Strickland’s
prejudice inquiry with the standard enunciated in Fretwell).
At any rate, the Indiana Supreme Court concluded that
Woods’s mitigation arguments failed because he could not
show prejudice:
With respect to the mitigation evidence, the [PCR] court
found that the evidence offered at the postconviction
hearing was cumulative of the evidence presented at
trial. Woods’ contention to the contrary is wholly
conclusory; and he concedes that at least some of the
evidence was duplicative. In any event, Woods has not
explained what any witness would have said, or any
investigation would have uncovered, that might have
led to a different sentence. He focuses on postconviction
testimony illustrating difficulties in his upbringing,
particularly related to his abusive mother. These
arguments were not only made at trial but credited: on
direct appeal we agreed with the trial court’s determi-
nation that Woods’ “turbulent childhood” was a “signifi-
cant mitigating circumstance.” Woods, 547 N.E.2d at
782. Thus, even assuming the postconviction evidence
on this point was not cumulative, prejudice has not
been proved because Woods’ surroundings were ac-
16 No. 04-1776
cepted as a mitigating factor at sentencing without the
postconviction testimony.
Woods II, 701 N.E.2d at 1226. We believe that the state
court’s reasoning is neither contrary to, nor an unreason-
able application of Strickland for the reasons given. Never-
theless, we hasten to add that—as the district court
concluded—our own de novo review leads to the same
conclusion.
The gist of Woods’s claim is that his trial counsel failed to
present mitigation evidence of the quantity or quality that
his PCR counsel presented on post-conviction review. Woods
claims that the totality of evidence adduced at both the
penalty phase and the PCR hearing compares favorably
with the available mitigation evidence at issue in Williams
and Wiggins and, as in those cases, calls for
a determination that his counsel rendered ineffective
assistance at the penalty phase of his trial.
Review of the lengthy trial record in this case reveals that
Woods unquestionably came from a tragic background, in
large part due to the abuse and neglect of Woods by his
mother, Mary Lou Pilkinton. The jury was treated to a
substantial body of evidence in this regard. As the Indiana
courts noted, the jury heard voluminous testimony during
trial—particularly during the penalty phase—that left no
doubt that Woods had a truly horrific childhood. Woods’s
counsel called witnesses who testified in detail about
Pilkinton’s selfishness, callous disregard of her children,
and less-than-admirable lifestyle. The following is but a
sampling of what the jury heard.
Pilkinton physically abused Woods and his siblings, and
she never showed them any affection. She often left the
children to fend for themselves while she went drinking
or pursuing men. Worse, Pilkinton had the habit of bringing
various men home and even had sex with them in full view
of the children. At one point, Pilkinton became the “mama”
No. 04-1776 17
of a local motorcycle gang and regularly hosted wild parties
at her home, during which much sex and drinking went on
in the presence of the children. One evening, Pilkinton
“offered” two of her daughters (aged 13 and 11) to some of
the bikers. Pilkinton and the various men in her life took
sadistic pleasure in physically abusing Woods and his
siblings. In addition, the children frequently witnessed
Pilkinton herself being mercilessly beaten by these men.
Aside from this abuse, Woods grew up under deplorable
home conditions. His father abandoned the family when
Woods was several years old. Woods and his siblings had no
stable home life either. As Pilkinton became involved with
various men, she moved Woods and his siblings around the
country, often living in very unhealthy and impoverished
conditions, including a dilapidated shack in Arkansas. The
children were forced to wear the same clothes (which were
dirty and full of holes) for long periods, and often slept in
their clothes so that Pilkinton would not have to get them
dressed for school.
Jurors also heard testimony from mental health experts
who opined that Woods’s childhood had a lasting, detrimen-
tal effect on him. One expert testified to Woods’s depression,
anger, and emotional problems, which stemmed largely
from his deep-seated feelings of resentment and hatred
towards Pilkinton. A psychologist even testified that
Woods’s childhood was a recipe for sociopathic and impul-
sive behavior that produced severe personality disorders in
Woods. Woods’s problems with alcohol and drugs were
revealed. Despite these problems, a social worker expressed
belief that Woods was capable of showing compassion and
could understand and make changes in his life and could be
habilitated.
Other witnesses discussed the fact that Woods had been
placed in foster care and had great difficulty in adjusting.
A social worker testified that Woods often displayed
18 No. 04-1776
aggression and violence to other foster children and even to
himself (Woods had on one occasion inflicted knife wounds
to his own stomach and arms)—circumstances attributable
to Woods’s unfortunate background and the psychological
and emotional effects stemming from it.
Despite the fact that all of these mitigating circum-
stances—and more—were tendered to the jury to be
considered against the aggravating circumstances of
Woods’s crimes, Woods claims that his counsel failed to
present other persuasive mitigation evidence that was
revealed for the first time during his PCR hearing. As
mentioned, Woods points to substantive mitigating factors
present in Williams and Wiggins that compare favorably
with factors in his case and argues that those cases re-
quire us to find that his trial counsel were constitutionally
infirm during the penalty phase of his trial.
Certainly, the testimony at Woods’s PCR hearing undeni-
ably revealed additional, often unpleasant details about
Woods’s upbringing and the nature of the various abuses he
suffered, and some of these additional facts facially resem-
ble some of the horrors recounted in Williams and Wiggins.
For example, Woods points to additional details of his
mother’s neglect, such as chaining the refrigerator shut and
giving food only as a reward for stealing. Other unsavory
facts revealed during the PCR hearing provided additional
detail regarding Woods’s and his siblings’ physical and
sexual abuse and more fulsome explication of Pilkinton’s
sexual exploits.
But it is the effectiveness of Woods’s trial counsel that we
must consider, not merely the presence of factors that
superficially resemble those in the aforementioned Supreme
Court cases. And that performance in no way approaches
the constitutionally defective actions and inactions of the
lawyers in Williams or Wiggins. Woods’s trial counsel
pursued a reasonable doubt strategy during the guilt phase
No. 04-1776 19
of trial and reserved its mitigation arguments for the
penalty phase, a strategy that was not inherently unreason-
able. The lawyers conducted an investigation, marshaled
evidence, and interviewed witnesses. They presented
evidence in accordance with their objective of portraying
Woods’s mother in a very negative light—a not-unreason-
able strategy given the wealth of unfavorable evidence
detailed above.3 We cannot agree that counsel’s performance
was deficient when assessed objectively and measured
against “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688.
Unlike in Wiggins, counsel in this case actually presented
mitigation evidence during the penalty phase rather than
a half-hearted attempt to deflect culpability from the
defendant. See Wiggins, 539 U.S. at 515-18, 526. Further-
more the facts do not indicate a failure to investigate
Woods’s background thoroughly, nor did counsel simply stop
their inquiries after having acquired only “rudimentary
knowledge” of Woods’s history from a narrow set of sources.
3
While we are on this topic, we note that an argument could be
made that Woods’s counsel could be faulted for not calling Woods’s
own mother during the penalty phase to offer additional details in
his mitigation. During the PCR hearing, Woods’s mother provided
an affidavit that provided additional detail of Woods’s abuse and
neglect at her hands. But, given Woods’s trial counsel’s strategy
of fixing blame on his mother and the outright hostility that
apparently existed between them at the time (indeed, Woods’s
mother was a state witness during the penalty phase), we cannot
fault counsel’s decision in this regard. See Timberlake, 409 F.3d
at 824 (“Coerced testimony dragged out of truculent family
members is unlikely to persuade a jury that a defendant has
redeeming features.”). Likewise, counsel’s decision not to call a
social worker to provide greater detail about Woods’s difficulties
as a foster child was not unreasonable given counsel’s concern
that her testimony would open the door to prosecution questioning
about Woods’s juvenile record. Cf. id. at 825.
20 No. 04-1776
See id. at 524-25. Likewise, Woods’s counsel’s performance
contrasts sharply with that of the lawyers in Williams, who
failed altogether to investigate and present graphic evi-
dence of Williams’s abusive upbringing, and with the
performance of other counsel likewise found to have failed
meaningfully to present any mitigation evidence. See
Rompilla v. Beard, 125 S. Ct. 2456, 2469 (2005) (finding
ineffective assistance where counsel offered only a “few
naked pleas for mercy” rather than any of the compelling
mitigation evidence that counsel failed to investigate or
present).
Really, Woods’s claim boils down to the contention that
his counsel did not present enough mitigating evidence. See
Connor, 375 F.3d at 666 (noting that such arguments come
down to a matter of degrees, which are ill-suited to judicial
second-guessing) (citation omitted); cf. Stewart v. Gramley,
74 F.3d 132, 135 (7th Cir. 1996) (“Presumably, [counsel] is
not required to investigate the defendant’s past with the
thoroughness of a biographer.”). But the important point is
that the performance of Woods’s counsel is easily distin-
guishable from that in either Williams or Wiggins, and we
can say that counsel’s performance did not fall below
prevailing professional standards. Cf. Connor, 375 F.3d at
662-63.
In the interest of completeness, we also note that even if
Woods’s counsel’s performance was deficient, Woods cannot
satisfy the prejudice prong of Strickland. Other than simply
contending that mitigating factors present in his case
compare favorably with factors evident in Williams and
Wiggins, Woods offers nothing to convince us that there is
a reasonable probability that the additional details that
came up during the PCR hearing would have led the jury to
conclude that the balance of aggravating and mitigating
factors did not warrant imposition of the death penalty. Cf.
Bieghler, 389 F.3d at 708. In that regard, we agree with the
No. 04-1776 21
Indiana Supreme Court’s determination that the additional
mitigation evidence was in essence cumulative of the
mitigation evidence elicited during the penalty phase. See
Woods II, 701 N.E.2d at 1226. As such, we find no reason-
able probability that the additional evidence would have
tipped the scales in Woods’s favor. See Eddmonds, 93 F.3d
at 1322 (“[A] few more tidbits from the past or one more
diagnosis of mental illness on[ ] the scale would not have
tipped it in [the petitioner’s] favor.”). Indeed, this possibility
is even less likely in light of the nature of the crime for
which Woods stood trial and the aggravating circumstances
presented to the jury. Id. at 1323 (“None of these [undis-
closed] facts, individually or collectively, outweighed the
countervailing aggravating factors and especially the
heinous nature of the crime.”).
For all of these reasons, we conclude that the district
court properly denied relief as to Woods’s mitigation claim.
C. Conflict of Interest
Finally, we turn to Woods’s contention that he was denied
due process when he was granted PCR counsel but not a
procedural mechanism for review of his theory that he had
a “conflict of interest” with his PCR counsel. Woods charac-
terizes the nature of the conflict thus: “As the case neared
the [PCR] hearing date, outright hostility surfaced between
Woods and his PCR counsel due to conflicting theories of
defense.” (Pet. Br. at 6.) Woods filed a pro se motion for
substitution of counsel, claiming that his PCR counsel
wanted only to present mitigation evidence during the PCR
hearing to the exclusion of making guilt-phase arguments.
Woods’s PCR counsel also filed a motion to withdraw. The
PCR court denied both motions.
Although he concedes that he has no constitutional right
to collateral review or to PCR counsel, Woods argues that
once Indiana has extended these avenues for relief, the
22 No. 04-1776
state’s mechanisms for providing such relief must comport
with the requirements of constitutional due process. See
Evitts v. Lucey, 469 U.S. 387, 401 (1984). What this means,
according to Woods, is that the state should have provided
Woods with the opportunity to air his concerns about the
“conflict,” and the denial of that opportunity was a violation
of due process. The state denies that Evitts makes his claim
cognizable in federal court, but at any rate insists that the
district court properly concluded that Woods’s claim was
barred by procedural default and, in the alternative, that
Woods loses on the merits.
In a sense, the dispute over whether Woods has advanced
a cognizable due process claim or whether he is procedur-
ally barred from bringing the claim is academic. We agree
with the district court’s conclusion that even if Evitts
extends a due process right as Woods frames it, there is no
basis for concluding that the state has deprived Woods of
that right under the facts present in this case. Woods, 302
F. Supp. 2d at 944.
Stripped to its essence, Woods’s “conflict” is nothing more
than his strenuous disagreement with his counsel. Woods
also adds his contention that his “PCR counsel
was attempting to coerce Woods into a full confession in
front of the PCR court, under the misapprehension that
aggravating and mitigating circumstances could be
reweighed. Woods had continued to insist, from the time
of his arrest over a decade earlier, that he did not remember
the circumstances of the crime for which he had been
convicted.” (Pet. Br. at 6.)
But we agree with the state’s argument that, in certain
respects, what Woods has characterized as a “conflict” with
his counsel is really nothing more than an attempt to
advance an ineffective assistance of PCR counsel claim
while sidestepping procedural default. Viewed in that light,
there was certainly nothing unreasonable about
PCR counsel’s decision to push forward with a powerful
No. 04-1776 23
mitigation strategy at the PCR hearing and to elicit mitiga-
tion testimony from Woods himself (who, at trial counsel’s
suggestion, chose not to take the stand in the penalty
phase). Central to the post-conviction litigation strategy
was the effort to frame and support the argument that trial
counsel was constitutionally defective, and as discussed at
length above, a cornerstone of that strategy was to elicit
additional details at the PCR hearing that would suggest
that trial counsel was not up to snuff during the penalty
phase. We have already disposed of that line of argument,
but it is equally clear to us that PCR counsel’s strategy was
a sound one. PCR counsel did, after all, turn up additional
mitigation details—albeit details insufficient to indicate
that trial counsel was constitutionally ineffective in not
eliciting those details the first time around.
As for Woods’s suggestion that he had been coerced into
giving a confession, the record is bereft of any factual
support for this contention (we also note that Woods’s tape-
recorded confession had been played to the jury at trial).
Nor is there any support for Woods’s suggestion that his
PCR counsel was operating under the misapprehension that
the PCR court would reweigh aggravating and mitigating
circumstances in deciding whether relief would be granted.
Our review of the record supports the conclusion that
Woods’s PCR counsel pursued a reasonable post-conviction
strategy, and any implication that their performance failed
to pass constitutional muster must fail.
As far as Woods’s suggestion of an “actual conflict of
interest,” we find at most a disagreement between Woods
and his PCR counsel as to strategy. We have found that
personality conflicts and disagreements over trial strategy
of this sort do not constitute reversible error. See United
States v. Horton, 845 F.2d 1414, 1418 (7th Cir. 1988);
United States v. Hillsberg, 812 F.2d 328, 333-34 (7th Cir.
1987). Likewise, to the extent Woods may be suggesting
it, we find nothing to indicate that the strategic disagree-
24 No. 04-1776
ment hampered his ability to assist PCR counsel at the
hearing. Cf. Matheney v. Anderson, 377 F.3d 740, 749 (7th
Cir. 2004) (concluding that disagreement between lawyers
and client as to proper scope of capital trial did not amount
to legal incompetency). It follows that there was not an
actual conflict of interest in Woods’s case such that the
Indiana courts were required to put off post-conviction
review in order to hear Woods’s claims or risk running afoul
of the Constitution. Woods’s disagreement with his PCR
counsel over post-conviction strategy simply does not rise to
that level, particularly in light of the eminently reasonable
mitigation strategy undertaken by his PCR counsel.
In sum, we conclude that Woods’s due process rights were
not violated when the state courts declined to grant him an
avenue to challenge his “conflict” with his PCR counsel. The
district court properly denied relief on this claim.
II. Conclusion
For the reasons given, we conclude that Woods is not
entitled to habeas relief on any of the grounds advanced.
The district court’s denial of habeas relief is AFFIRMED.
No. 04-1776 25
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-30-05