Stevens, Christopher v. McBride, Daniel ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1442
CHRISTOPHER M. STEVENS,
Petitioner-Appellant,
v.
DANIEL MCBRIDE,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 03-CV-005—Allen Sharp, Judge.
____________
ARGUED FEBRUARY 7, 2006—DECIDED JUNE 18, 2007
____________
Before RIPPLE, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Christopher Stevens, an emotion-
ally disturbed young man who had been abused and
raped as a child, was sentenced to death in Indiana state
court for the molestation and brutal murder of 10-year-old
Zachary Snider. At Stevens’s trial, the only evidence
presented by the defense concerning his mental state at
the time of the killing was the testimony of a psychologist
who believes that mental illness is a myth. After the
Indiana courts rejected Stevens’s direct appeal and post-
conviction review petition, he brought this habeas corpus
petition under 28 U.S.C. § 2254, claiming principally
that his attorneys’ investigation and presentation of ex-
pert psychological testimony at his trial amounted to
2 No. 05-1442
ineffective assistance of counsel and deprived him of his
only opportunity to avoid conviction and a death sentence.
We conclude that the defense attorneys provided ineffec-
tive assistance at the penalty phase of the trial and grant
Stevens’s petition insofar as it relates to his sentence.
I
A
The underlying facts of this case are recounted in
detail in the Indiana Supreme Court’s decision affirming
Stevens’s conviction and sentence. See Stevens v. Indiana,
691 N.E.2d 412 (Ind. 1997). Those facts are entitled to a
presumption of correctness, see 28 U.S.C. § 2254(e)(1), and
they are in any event uncontested at this point. We re-
peat here only what is relevant to Stevens’s current
claims.
In February 1993, Stevens, who was 20 years old at the
time, was convicted in Indiana state court of child molesta-
tion. After serving several months of his sentence, he
was released on probation in May 1993. On the night
before his release, Stevens had a conversation with a
fellow inmate, Tracy Eastin, in which Eastin predicted
that Stevens would be back in jail for the same crime
again within two months. Stevens allegedly replied, “No,
I won’t. Next time I’ll kill him.”
Upon his release, Stevens went to live with his father
in Cloverdale, Indiana. He soon befriended Snider, a 10-
year-old who lived in the same subdivision as Stevens’s
father. On July 15, 1993, Snider went to Stevens’s home
in the late afternoon, where Stevens proceeded to molest
him. Afterwards, Snider threatened to tell his parents
about the assault; at this point, Stevens claims that he
became scared and “clicked.” He attempted to kill Snider
by smothering him with a pillow and then strangling him
No. 05-1442 3
with a cord. After those methods proved unsuccessful,
Stevens eventually managed to kill Snider by suffocating
him with a plastic bag. Stevens then placed Snider’s body
and Snider’s bicycle into the back of his car, drove out into
the countryside, and threw the body and bike over a
bridge. Later, he returned to the site to retrieve a plastic
bag that he feared, if found, might assist the police in
identifying him as Snider’s killer.
When Snider did not return home during the evening of
July 15, his parents began to search the neighborhood.
They came across Stevens in front of his house. Lying to
them, Stevens denied having seen Snider all day. On July
17, the police picked up Stevens for questioning, confront-
ing him with the fact that a witness had seen Snider’s
bicycle parked in front of his home on the day of the
murder. Stevens admitted to police that Snider had visited
him briefly, but he denied having anything to do with his
disappearance. Two days later, Stevens confessed to his
brother Mark Stevens that he had killed Snider, explain-
ing in detail what had occurred and directing his brother
to the bridge where the body was hidden. Mark Stevens
went to the police, who later arrested Christopher Stevens.
B
After Stevens was charged with Snider’s murder the
State announced its intention to seek the death penalty.
The Putnam County Superior Court appointed two lawyers
for Stevens: Jeffrey Baldwin as lead defense counsel and
Robert Clutter as second counsel. Soon thereafter, the case
was transferred to the Tippecanoe County Superior Court.
Baldwin retained Carol Knoy as a defense mitigation
specialist. From conversations with Stevens, it quickly
became apparent to the defense team that a mental health
examination would be an important component of trial
preparation. Stevens told his lawyers that he had been
4 No. 05-1442
physically, mentally, and emotionally abused as a child,
and had been raped by a stranger when he was 10 years
old. Medical records from a psychiatric facility where
Stevens was briefly a patient reported that he had at-
tempted suicide. Doctors there had diagnosed him with
major depression and possible schizophrenia. Stevens also
wrote a letter to Knoy in which he stated that when he
killed Snider he “put himself in Zachary’s place, and he
was doing to Zachary what he wished the man who had
raped him would have done to him.”
Upon Knoy’s recommendation, defense counsel retained
as a mental health consultant clinical psychologist
Dr. Lawrence Lennon, who at the time was director of a
child and adolescent psychiatric center at an Indianapolis
hospital. Upon meeting with Dr. Lennon for the first time,
defense counsel instructed him to evaluate Stevens but
not to write a report on his findings. Despite this ex-
plicit direction, Dr. Lennon wrote a report and sent it
to Stevens’s attorneys. The report included numerous
statements that were extremely detrimental to Stevens’s
case. Because this report is so central to Stevens’s
claims, we reproduce excerpts of it here:
Mr. Stevens revealed no evidence of any hallucina-
tions or delusions. . . . There is no reason to believe
that he has ever been out of touch with reality except
perhaps when he has been under the influence of
drugs. . . .
He said he has molested approximately 25-30 chil-
dren (mostly boys) and has shot and killed one boy
out west (later he recanted this story). . . .
He rarely accepts responsibility for his actions and
tries to blame others for all the problems he has
encountered. . . .
The murder of Zachary appears to be directly related
to his fear of having to return to prison after Zachary
No. 05-1442 5
revealed he would report Mr. Stevens’ sexual assault.
Mr. Stevens did not seem to reveal sincere sorrow
for killing Zachary and is much more preoccupied
with saving his own life.
Sexually, Mr. Stevens seems well versed in
pedophilia and readily accepts this diagnosis. . . .
Mr. Stevens is in need of intensive counseling
although due to his manipulative behavior he is not
now a good candidate for psychotherapy. . . .
Mr. Stevens is, at this time, a serious danger to
society and there is every reason to believe he would
continue to molest children, especially boys, if given
another opportunity. Given his present mental state,
one could not rule out another violent assault on a
young victim if Mr. Stevens again felt it was neces-
sary.
Upon receipt of the report, Stevens’s lawyers immedi-
ately contacted Dr. Lennon to question why he had
disobeyed their instructions. Stevens’s attorney Robert
Clutter testified that Dr. Lennon, echoing Marlene
Dietrich’s portrayal of the character Christine Helm Vole
in the 1957 film version of Witness for the Prosecution,
responded: “Don’t worry about it. I’m sandbagging the
State. . . . I’m trying to make them think that I’m going to
be a good witness for them, but I’m going to take—when
I take the stand, I’m going to be able to turn this all
around on them.”
Around the same time, Stevens’s lawyers also learned
that Dr. Lennon subscribed to an unusual psychological
theory known as the “myth of mental illness.” Stevens’s
lawyers believed that Dr. Lennon’s belief in this theory
placed him in the one percent minority of psychologists
who believe that mental diseases do not exist. They
concluded that he was a “quack.” Stevens’s lawyers also
6 No. 05-1442
learned about Dr. Lennon’s favored therapeutic technique,
“trust and bonding therapy,” which the lawyers (and later
Dr. Lennon himself ) described as “putting 18-year-olds
on his lap and sticking a bottle in their mouth.” Despite
their serious and well-founded doubts about Dr. Lennon’s
fitness as a defense expert, Stevens’s counsel did not
seek an alternative. In addition, prior to trial the lawyers
sent a copy of Dr. Lennon’s report to the prosecution.
Neither Dr. Lennon nor any other mental health profes-
sional testified during the guilt phase at the trial. Instead,
Stevens’s counsel tried to convince the jury that Stevens
was guilty of voluntary manslaughter rather than inten-
tional homicide because he acted in a state of sudden heat
provoked by Snider’s threat to disclose Stevens’s molesta-
tion of him. This strategy was unsuccessful, as the trial
court refused to give a proposed jury instruction on
voluntary manslaughter. The jury returned a guilty
verdict.
At the penalty phase of the trial, defense counsel pre-
sented testimony from Stevens himself, as well as from
numerous members of Stevens’s family. As their final
witness, Stevens’s lawyers called Dr. Lennon. Dr. Lennon
began his testimony by describing at length his preferred
form of therapy for troubled children, stating that he
typically would forcibly hold a young person down in his
lap for “a fun time where the child tries to get away” until
the child is exhausted and then, “we’ll talk about the
child, the little baby inside this boy that was never nour-
ished, never loved . . . and in some cases we’ll actually
give a bottle. The mother will give a bottle to the 17-year-
old and 16-year-old . . . .” Dr. Lennon also described his
diagnostic technique of looking at photographs of troubled
children at younger ages where “[w]e see . . . a beautiful
child that it makes you wonder why, what happened . . .
and then we look at where the person is today, and we try
to figure out what’s going on.”
No. 05-1442 7
Eventually turning to the subject of Stevens, after more
than twenty pages of testimony on his theories of child
development and his “trust and bonding” therapy, Dr.
Lennon testified about the “terrible childhood” and some
of the abuse Stevens had experienced. Notably, Dr. Lennon
did not provide any evaluation of Stevens’s current mental
health, except to say that Stevens “shows traits of . . . [a
reactive] attachment disorder,” which, according to Dr.
Lennon, means that Stevens is “going to live . . . by using
people.” Dr. Lennon also stated that Stevens is “emotion-
ally like a twelve-year-old” just after describing him as “a
very pathetic kid.” Dr. Lennon said nothing to connect
Stevens’s difficult childhood to his mental state at the
time of the murder.
The prosecution’s cross-examination of Dr. Lennon
closely tracked Dr. Lennon’s written evaluation of
Stevens. Prosecutors asked Dr. Lennon to confirm his
statement that the murder of Snider was directly related
to Stevens’s fear of having to return to prison. Dr. Lennon
volunteered that Stevens had antisocial qualities and
sociopathic traits. After walking Dr. Lennon through the
report, the prosecutor asked Dr. Lennon whether Stevens
had been sexually aroused by killing Snider and whether
he had masturbated on Snider’s body. Dr. Lennon re-
sponded that Stevens had admitted that he had done so.
Dr. Lennon had never disclosed this devastating fact to
defense counsel.
The jury unanimously recommended a death sentence.
After Stevens’s attorneys called Dr. Lennon to testify a
second time at the sentencing hearing, during which Dr.
Lennon described Stevens as presenting “a great risk to
society,” the trial court accepted the jury’s recommenda-
tion of death. In so doing, the court stated for the record
that it found that the mitigation evidence presented by
Stevens was “far outweighed” by the aggravation factors
provided by the State. In summary the court stated:
8 No. 05-1442
[T]he Court finds this murder was calculated. It was
motivated by self-preservation, coolly performed with
deliberation, and coupled with the defendant’s sexual
gratification. The defendant placed the possibility of
his arrest for child molesting above the life of a ten
year old boy. He stated that if placed in this position
he would kill in order to avoid returning to jail. That
is exactly what he did. He clearly acted in a cold-
blooded manner.
The Indiana Supreme Court affirmed Stevens’s convic-
tion and sentence on direct appeal. After obtaining new
counsel, Stevens filed a state petition for post-conviction
relief. After holding an evidentiary hearing, the trial court
denied this petition; the Indiana Supreme Court later
affirmed this denial. Finally, Stevens filed this petition
for habeas corpus in district court. The district court
denied Stevens’s claims, leading to this appeal.
II
Our review of Stevens’s petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254, which permits a federal court
to issue a writ of habeas corpus only if the state court
reached a decision on the merits of a claim, and that
decision was either “contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States,”
§ 2254(d)(1), or “was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the
State court proceeding,” § 2254(d)(2). Since Stevens’s
principal argument involves a claim of ineffective assis-
tance of counsel, it is governed by the familiar standard of
Strickland v. Washington, 466 U.S. 668 (1984), under
which a defendant must show both that his lawyers’
performance was deficient and that this deficient perfor-
mance prejudiced his defense.
No. 05-1442 9
Although there is significant overlap between Stevens’s
claims that he received ineffective assistance of counsel
relating to the investigation and presentation of expert
psychological evidence at the guilt phase of the trial and at
the penalty phase, for clarity we consider each argument
in turn. We then briefly address two additional arguments
that Stevens raises in his petition.
A. Guilt Phase
Throughout his state and federal post-conviction pro-
ceedings, Stevens has claimed that his lawyers were
ineffective for not adequately investigating his mental
state and, as a result, failing to pursue an insanity defense
during the guilt phase of the trial and instead relying on
a doomed voluntary manslaughter theory. In its decision
denying post-conviction relief, the Indiana Supreme Court
rejected this argument, concluding that defense counsels’
decision not to pursue such a defense was a strategic one
based on adequate investigation. In any case, the court
held, Stevens was not prejudiced by his lawyers’ perfor-
mance because Stevens’s actions during and after the
killing constituted such strong evidence that Stevens
was aware of the wrongfulness of his conduct that no
reasonable jury could conclude otherwise.
Our review of Stevens’s counsels’ performance is “highly
deferential”; Stevens is required to “overcome the pre-
sumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Strick-
land, 466 U.S. at 689 (quotation marks omitted). The
choice not to investigate a particular defense does not
constitute deficient performance “if a lawyer has made a
reasonable decision that makes particular investigations
unnecessary.” Adams v. Bertrand, 453 F.3d 428, 436 (7th
Cir. 2006) (quotation marks omitted).
10 No. 05-1442
In an attempt to overcome the presumption of sound
trial strategy, Stevens relies on his lawyers’ frank admis-
sions at the state post-conviction hearing that they were
aware from the beginning of their representation of
Stevens that a comprehensive mental health evaluation
would be a crucial prerequisite for determining trial
strategy, yet after Dr. Lennon failed to provide them with
such an evaluation they neglected to consult an alternative
mental health expert. Stevens also emphasizes that his
lawyers did not offer any rationale for their decision not
to seek an additional expert. To the contrary, they explic-
itly disclaimed any strategic basis for their actions.
In contrast, the State, echoing the Indiana Supreme
Court, contends that defense counsels’ investigation of
Stevens’s mental state was adequate because it was
reasonable for them to rely on Dr. Lennon, whom the
State describes as a well-qualified and experienced mental
health professional. The State further argues that it
was a reasonable strategic choice for counsel to choose a
voluntary manslaughter defense over a mental illness
defense, since, it claims, choosing the latter path “would
have opened the door to the admission of incriminating
evidence not otherwise presented at the guilt phase,”
namely, Eastin’s testimony regarding Stevens’s jail-
house statement.
The general qualifications of an expert witness do not
guarantee that the witness will provide proficient assis-
tance in any given instance. For example, even the most
brilliant of witnesses might fail to address the import-
ant question at issue or might simply reiterate proposi-
tions so well-known that they are proper subjects for
judicial notice. Experience in the federal courts illustrates
this point. In an antitrust case, for example, this court
upheld a district court’s exclusion of the expert testimony
of a Nobel Prize-winning economist on the ground that,
despite his impeccable qualifications, his testimony
No. 05-1442 11
“mainly concerned a matter not in issue” (probably be-
cause counsel never asked him the right questions). In re
Brand Name Prescription Drugs Antitrust Litigation, 186
F.3d 781, 786 (7th Cir. 1999). There, the relevant rule
was Federal Rule of Evidence 702, which requires not only
that an expert witness be “qualified as an expert by
knowledge, skill, experience, training, or education,” but
also that the expert’s testimony be “the product of reli-
able principles and methods.”
Indiana, naturally, is under no obligation to follow
federal procedural rules, including the rules of evidence.
At the time of Stevens’s trial, however, Indiana had a rule
very much like the present FED. R. EVID. 702, or like IND.
R. EVID. 702 (effective Jan. 1, 1994): “[G]iven a subject
matter appropriate for expert testimony, the opinion must
be preceded by a foundation of evidence establishing the
witness’s credentials as an expert and the reliability of
any scientific methods utilized by the witness to reach
the opinion.” See Noblesville Casting Div. of TRW, Inc. v.
Prince, 438 N.E.2d 722, 727 (Ind. 1982); see also Martin v.
Roberts, 464 N.E.2d 896, 899 (Ind. 1984) (holding that a
potential expert witness “had to show to the trial judge
his knowledge and experience in the field to qualify as
an expert”). The problem here related first to the methods
that Dr. Lennon used and his idiosyncratic view of mental
disorders, and even more importantly, to the fact that
Dr. Lennon’s views favored the prosecution. Stevens’s
lawyers were aware that Dr. Lennon was part of a tiny
minority of mental health professionals. (It is odd, given
his views, that Dr. Lennon had worked at a psychiatric
hospital. As the website of the American Psychiatry
Association illustrates, psychiatrists devote their lives
to the study and treatment of mental disorders. See
http://www.psych.org/about_apa/. They, and the psycho-
logists who frequently work with them, would undoubtedly
take issue with the idea that they are tackling a “myth.”)
12 No. 05-1442
In light of the stakes in the case and the evidence the
defense had to confront, it would not have been reasonable
for defense counsel to rely on Dr. Lennon’s evaluation of
Stevens based only on his credentials.
Putting that question to one side for now, we are also
troubled by the State’s effort to characterize the defense
lawyers’ reliance on a voluntary manslaughter defense
as a reasonable strategic choice. As the Indiana Supreme
Court recognized in roundly rejecting Stevens’s argument
on direct appeal that the trial court should have given the
voluntary manslaughter instruction, “[n]othing in these
facts” indicates that Stevens acted in “sudden heat” as
defined by Indiana law, since “words alone cannot consti-
tute sufficient provocation to give rise to a finding of
sudden heat warranting an instruction on voluntary
manslaughter.” Stevens, 691 N.E.2d at 426-27 (quoting
Matheny v. Indiana, 583 N.E.2d 1202, 1205 (Ind. 1992)).
Nor is the State’s assertion that a mental illness defense
would have opened the door to Eastin’s testimony particu-
larly telling. As Stevens correctly points out, the same
door would have been opened if counsel had managed to
obtain a voluntary manslaughter instruction, since both
defenses involve the element of intent.
In light of Stevens’s lawyers’ admissions and the overall
weakness of the defense they presented at trial, we are
inclined to believe that their performance was ineffec-
tive. Before attempting to resolve that issue definitively,
however, we look at the prejudice branch of the Strickland
test. We do so because the Supreme Court has explicitly
noted that both deficient performance and prejudice
must be shown in order to prove constitutionally ineffec-
tive assistance of counsel. If either element is missing, the
petitioner cannot prevail. See Strickland, 466 U.S. at 697.
We therefore turn to the question whether Stevens was
prejudiced by his counsels’ performance at the guilt phase
of his trial.
No. 05-1442 13
In Indiana,“[a] person is not responsible for having
engaged in prohibited conduct if, as a result of mental
disease or defect, he was unable to appreciate the wrong-
fulness of the conduct at the time of the offense.” Ind. Code
§ 35-41-3-6. This is a difficult standard to meet; the
defendant carries the burden of proof and the Indiana
Supreme Court has made clear that it will reverse a trial
court’s denial of an insanity claim “only when the evidence
is without conflict and leads only to the conclusion that
the defendant was insane when the crime was committed.”
Thompson v. Indiana, 804 N.E.2d 1146, 1149 (Ind. 2004).
To show that an insanity defense was possible, Stevens
relies heavily on several mental health experts who
testified at the post-conviction hearing that Stevens was
severely mentally ill and that his mental illness played a
determining role in the murder. After conducting a
comprehensive psychological evaluation of Stevens, Dr.
Philip Coons, Professor of Psychology at the Indiana School
of Medicine, diagnosed him as having a “very severe
dissociative disorder,” opining that “at the time of the
murder, he was not only dissociating, but the identity
between he and [Snider] got mixed up. . . . [H]e’s basically
killing Zach because it’s what he would have wanted in
that molestation at age 10, to have been killed by his
abuser.” While Dr. Coons acknowledged that Stevens
“obviously knew right from wrong” after the killing,
“because he engaged in all kinds of behaviors to cover up
what he had done,” Coons emphasized that Stevens’s
ability to appreciate the wrongfulness of his conduct at
the time of the murder was “impaired.” Dr. Robert
Kaplan, a clinical psychologist, agreed that it was “very
clear” that Stevens suffers from “a dissociative disorder,”
explaining that a family history of physical and sexual
abuse corroborated such a diagnosis, as did a review of
Stevens’s behavior during his videotaped confession. Dr.
Kaplan described Stevens’s childhood as “a recipe for
14 No. 05-1442
developing someone with a dissociative disorder.” Dr.
Kaplan, like Dr. Coons, testified that it was his opinion
that “[t]he part of [Stevens] that’s able to appreciate the
wrongfulness of his conduct was disengaged when he was
dissociating,” adding that it was clear that Stevens
was under extreme emotional distress and “was actively
dissociating at the time that the murder was occurring.”
To prove prejudice it is not enough for Stevens simply
to show that a mental illness line of defense was avail-
able. Strickland requires him to demonstrate “a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. And, of course, we conduct this analysis
through the lens of AEDPA’s unreasonableness standard,
a standard that “allows the state court’s conclusion to
stand if it is one of several equally plausible outcomes.”
Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997).
Considering the evidence in the record of Stevens’s
extended efforts to kill Snider and later to cover up the
murder, the Indiana Supreme Court’s conclusion that no
jury could conclude that Stevens did not appreciate the
wrongfulness of his conduct at the time of the murder
was not implausible. Although we think that there is a
possibility that a jury presented with the expert testimony
of Dr. Coons and Dr. Kaplan might have concluded that
Stevens was legally insane at the time of the killing based
on a dissociation theory, this possibility does not render
the Indiana Supreme Court’s contrary conclusion unrea-
sonable. See Hardaway v. Young, 302 F.3d 757, 762 (7th
Cir. 2002) (AEDPA’s unreasonableness standard “means
something like lying well outside the boundaries of
permissible differences of opinion”). We therefore con-
clude that the Indiana Supreme Court did not unreason-
ably apply Strickland in determining that Stevens was
No. 05-1442 15
not prejudiced by his counsels’ failure adequately to
investigate and pursue an insanity defense during the
guilt phase of his trial.
One final comment on Stevens’s guilt phase claim: in his
reply brief, Stevens argues that, in addition to an insanity
plea, his trial lawyers should have pursued a defense of
guilty but mentally ill (GBMI). See Ind. Code § 35-36-2-5.
Such a defense is available in cases in which a defendant
“was mentally ill but able to distinguish right from wrong
at the time of the offense.” Weeks v. Indiana, 697 N.E.2d
28, 29 (Ind. 1998). Although a jury finding of GBMI “does
not guarantee a defendant that the death penalty will not
be imposed . . . as a practical matter, defendants found to
be guilty but mentally ill of death-penalty-eligible murders
normally receive a term of years or life imprisonment.”
Prowell v. Indiana, 741 N.E.2d 704, 717 (Ind. 2001)
(internal citation omitted). For this reason, the Indiana
Supreme Court has held that a defendant claiming inef-
fective assistance of counsel may prove prejudice by
showing that but for his counsel’s deficient performance “a
trial would have produced a result of . . . guilty but
mentally ill.” Id. at 717.
Merits aside, we find it inappropriate to consider this
argument because Stevens never argued to the Indiana
courts that this was one way in which he intended to prove
his ineffective assistance of counsel claim. Section
2254(b)(1)(A)’s exhaustion provision “requires the peti-
tioner to assert his federal claim through one complete
round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings.” Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). Adequate
presentation of a claim requires a petitioner to “present
both the operative facts and the legal principles that
control each claim to the state judiciary.” Rittenhouse v.
Battles, 263 F.3d 689, 695 (7th Cir. 2001). Here, although
Stevens presented his ineffectiveness claim to the state
16 No. 05-1442
courts, he never presented as a supporting argument the
lawyers’ failure to raise the GBMI defense at trial. (It
may be worth noting here that although we assess coun-
sel’s performance as a whole for purposes of granting
certificates of appealability under 28 U.S.C. § 2253(c)(2),
and thus a certificate identifying ineffective assistance
of counsel brings up all of counsel’s actions, see Peoples v.
United States, 403 F.3d 844, 848 (7th Cir. 2005) (“[I]t is
the overall deficient performance [by a defendant’s attor-
ney], rather than a specific failing, that constitutes the
ground of relief.”), the purposes behind the rules of
procedural default requires a party to present to the state
court both the facts and the law on which he relies. Thus,
the failure to alert the state court to a complaint about
one aspect of counsel’s assistance will lead to a pro-
cedural default.) Instead, throughout the post-conviction
proceedings, Stevens couched his mental illness defense
theory either in general terms (contending in his petition
for post-conviction relief that his counsels’ “unreasonabl[e]
fail[ure] to investigate, develop, prepare, and present
available evidence, including but not limited to evidence of
diagnosable mental and emotional disabilities, [ ] would
have given rise to a defense to the charge”) or in terms
specific to an insanity defense (arguing in his proposed
conclusions of law that Dr. Coons’s testimony, for example,
supported a finding that Stevens was unable to “appreciate
the wrongfulness of his conduct at the time of the killing”).
Neither argument sufficiently alerted the state court to
the fact that Stevens intended to prove ineffectiveness
through counsel’s failure to present the GBMI claim, and
therefore Stevens may not do so here.
B. Sentencing Phase
In seeking relief from his capital sentence, Stevens
repeats many of the same arguments regarding the
No. 05-1442 17
inadequacy of defense counsels’ handling of expert psycho-
logical testimony that he made for the guilt phase. For
sentencing purposes, he stresses counsels’ failure to
develop mitigation evidence related to his mental state and
their ill-fated decision to call Dr. Lennon not once, but
twice, as a defense witness. The Indiana Supreme Court
rejected the first aspect of this claim for the same reason
it rejected Stevens’s guilt phase ineffectiveness claim: it
concluded that defense counsel had adequately investi-
gated Stevens’s mental health through Dr. Lennon and
then made a strategic decision not to present mitigation
evidence related to Stevens’s mental state. The court did
not, however, have anything to say about Stevens’s law-
yers’ decision to call Dr. Lennon as a defense witness for
sentencing purposes, other than to acknowledge Stevens’s
argument that Dr. Lennon “was a fatal [sic] witness for
the defense.”
The Indiana death penalty statute requires the State to
prove beyond a reasonable doubt the existence of at least
one enumerated aggravating circumstance. Ind. Code § 35-
50-2-9(b)(1). In Stevens’s case, the State focused on three
aggravating circumstances: that Stevens committed the
murder while committing the crime of child molestation,
that Stevens was on probation at the time of the murder,
and that the victim was under the age of 12. The statute
allows a defendant to provide evidence about both the
aggravating circumstances alleged by the prosecution and
enumerated mitigating circumstances. Here, at least two
such mitigating circumstances were implicated: first, that
“[t]he defendant was under the influence of extreme
mental or emotional disturbance when the murder was
committed,” and second, that “[t]he defendant’s capacity
to appreciate the criminality of the defendant’s conduct
or to conform that conduct to the requirements of law was
substantially impaired as a result of mental disease or
defect.” Ind. Code § 35-50-2-9(c)(2) & (6). The only other
18 No. 05-1442
mitigating circumstance that could have applied to Stevens
under Indiana law was the catch-all “[a]ny other circum-
stances appropriate for consideration.” Ind. Code § 35-50-
2-9(c)(8).
The Supreme Court has made clear that in evaluating
claims of ineffective counsel, “we must take [the] purpose
[of assistance of counsel]—to ensure a fair trial—as the
guide.” Strickland, 466 U.S. at 686. Strickland held that
counsel’s performance during the capital sentencing
phase of a criminal case is subject to the same standards
as counsel’s performance during the trial itself. Id. at 686-
87. In other words, the petitioner must demonstrate that
counsel was ineffective and that the petitioner was preju-
diced by counsel’s performance. Id. at 687. Counsel’s most
“basic duties” include the “duty to advocate the defendant’s
cause,” the “duty to bring to bear such skill and knowledge
as will render the trial [or capital sentencing phase] a
reliable adversarial testing process,” and the “duty to
investigate,” which was at issue in Strickland. Id. at 688,
691.
In assessing whether counsel was ineffective, the
Strickland Court requires the “defendant making a claim
of ineffective assistance [to] identify the acts or omissions
of counsel that are alleged not to have been the result of
reasonable professional judgment.” Strickland, 466 U.S. at
690. Following such a showing, “[t]he court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range
of professionally competent assistance.” Id. Although
counsel’s strategic choices are given considerable defer-
ence, “strategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations
on investigation.” Id. at 690-91.
No. 05-1442 19
Strickland particularly referred to “[p]revailing norms of
practice as reflected in American Bar Association stan-
dards” as “guides to determining what is reasonable,” but
it emphasized that a court’s ultimate determination of
counsel’s effectiveness must be grounded in the specific
circumstances of the case. Id. at 688. The ABA Guidelines
state that investigations into mitigating evidence “should
comprise efforts to discover all reasonably available
mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.” ABA
Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989).1
Although Stevens’s trial counsel presented testimony
from a number of witnesses, principally family members,
during the penalty phase of the trial, very little of this
testimony addressed any statutory mitigating factor other
than perhaps the catch-all “other circumstances” factor.
None of it addressed whether Stevens was suffering
from an extreme emotional disturbance or was unable to
appreciate the wrongfulness of his conduct at the time of
the murder, both theories that Dr. Coons’s and Dr.
Kaplan’s later diagnoses of Stevens suggest would have
been supported, had counsel only pursued them. See Ind.
Code § 35-50-2-9(c)(2) & (6). Stevens contends that this
failure to investigate and present mitigation evidence
1
Later, the Supreme Court cited this standard specifically
and approvingly in its decision in Wiggins v. Smith, 539 U.S. 510,
524 (2003). The Wiggins case, however, was decided six years
after the Indiana Supreme Court considered Stevens’s ineffec-
tive assistance of counsel claims, and therefore for purposes of
this case cannot serve as a source of “clearly established Federal
law, as determined by the Supreme Court.” Eckstein v. Kingston,
460 F.3d 844, 848 (7th Cir. 2006). Nevertheless, Wiggins sheds
some light on what the Court itself understood as the scope of
its Strickland holding.
20 No. 05-1442
on his mental state constituted deficient performance. The
State responds that defense counsels’ choice not to look
for other mental health professionals and instead to rely
on Dr. Lennon’s testimony was a reasonable strategic
decision on the part of counsel and “a straightforward
approach to mitigation, as it explained reasons for
Stevens’s conduct that portrayed Stevens himself as a
victim.”
The strategic reasons that might, at a stretch, have
justified this decision at the guilt phase, fall apart when
we consider that at the sentencing phase Stevens had
nothing left to lose. The lawyers’ decision to forego pre-
senting this kind of mitigation evidence was made with-
out the kind of investigation into Stevens’s mental health
that Strickland calls for, after Stevens’s lawyers had
concluded that Dr. Lennon was a “quack.” Indeed, it is
uncontested that Stevens’s lawyers knew nothing about
the content of Dr. Lennon’s planned testimony. The
lawyers confessed at the post-conviction hearing that they
were utterly in the dark about what Dr. Lennon would
say when he took the stand. They frankly admitted that
during trial preparations, Dr. Lennon would only repeat,
“I can handle it. Don’t worry about it.” This is a complete
failure of the duty to investigate with no professional
justification. Where an expert witness’s opinion is “crucial
to the defense theory[,] defense counsel’s failure to have
questioned [the expert] . . . prior to trial is inexcusable.”
Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000).
Furthermore, given the fact that defense counsel did
know what Dr. Lennon had written in his report, we
cannot imagine what they hoped to gain by calling Dr.
Lennon to the stand at sentencing. This decision was the
catalyst for their action in turning over Dr. Lennon’s
extremely detrimental written report to prosecutors prior
to trial. The Indiana Supreme Court indicated that this
fact did not constitute an indication of deficient perfor-
No. 05-1442 21
mance since the trial court had required “any reports from
experts” to be turned over to the State prior to trial.
Stevens v. Indiana, 770 N.E.2d 739, 748 n.4 (Ind. 2002).
Our review of the record reveals, however, that the trial
court’s order pertained only to reports from expert trial
witnesses retained by the defense. Stevens’s lawyers could
have designated Dr. Lennon as a trial consultant rather
than an expert witness, thereby shielding his written
report from the prosecution. See Indiana Trial Rule
26(B)(4)(b) (“A party may discover facts known or opinions
held by an expert who has been retained or specially
employed by another party in anticipation of litigation or
preparation for trial and who is not expected to be called
as a witness at trial, only . . . upon a showing of excep-
tional circumstances. . . .”); cf. Beauchamp v. Indiana, 788
N.E.2d 881, 892 (Ind. Ct. App. 2003) (applying Rule
26(B)(4)(b) and stating that “a party should certainly be
protected when obtaining expert advice he requires in
order to properly evaluate and present his case without
fear that every consultation will be discoverable”).
A straightforward application of the first Strickland
requirement compels a conclusion that these “acts and
omissions” of Stevens’s counsel during the capital sentenc-
ing phase constitute errors “so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland, 466 U.S. at 687,
690. We conclude, on this record, that the performance
of Stevens’s lawyers at his capital sentencing proceed-
ings fell below the constitutional minimum.
We thus turn to the prejudice inquiry. The Strickland
Court held that in order to show prejudice, “[t]he defen-
dant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466
U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.22 No. 05-1442
As it did for the guilt phase of the trial, the Indiana
Supreme Court reasoned that Stevens was not disadvan-
taged by his counsels’ failure to develop mitigation evi-
dence regarding his psychological state because such
evidence “would have been strongly contradicted by the
extensive evidence of the defendant’s multiple attempts
to kill Zachary and then carefully to take steps to cover-
up the crime.” Stevens, 770 N.E.2d at 754. But there is an
important difference between the statutory mitigating
factors of § 35-50-2-9(c)(2) & (6) for capital sentencing
purposes and the requirements for proving an insanity
defense at the guilt phase. Furthermore, the burden on the
defendant is not as heavy at sentencing as during the
guilt phase. See Baird v. Davis, 388 F.3d 1110, 1122 (7th
Cir. 2004) (“Substantial impairment of one’s capacity to
conform conduct to the requirements of law as a result of
mental disease or defect is qualitatively different from the
mere status of being ‘under the influence’ of extreme
mental or emotional disturbance.”); St. Pierre v. Walls,
297 F.3d 617, 632 (7th Cir. 2002) (“While a defendant’s
mental state at the time of the crime might not rise to the
level of a defense to the crime, it can be relevant in a
mitigation hearing.”). As a legal matter, a mental illness
mitigation defense to the imposition of a death sentence
may be available even if an insanity defense to the murder
charge is not.
In this case, we find a reasonable probability—that is,
one sufficient to undermine our confidence in the out-
come of the sentencing phase—that the result would have
been different if the jury had heard mainstream expert
psychological testimony of the sort presented by Dr. Coons
and Dr. Kaplan at the post-conviction hearing. See Strick-
land, 466 U.S. at 694. Competent evidence of Stevens’s
mental illness would have strengthened the general
mitigation evidence presented by defense counsel concern-
ing Stevens’s difficult background by focusing the jury on
No. 05-1442 23
the concrete results of years of abuse on Stevens’s psyche.
There was, in addition, little downside risk of presenting
such evidence to the jury; evidence of the most damning
sort was already before the jury. Cumulative evidence of
his predatory pedophilia and his specific actions on the
fateful day was not likely to make any difference. And
unlike general mitigation evidence concerning Stevens’s
background, evidence about Stevens’s severely dissociated
condition and impaired ability to appreciate the wrongful-
ness of his conduct at the time of the killing would have
provided his lawyers a basis for rebutting the aggravat-
ing factors highlighted by the State.
On this record, defense counsels’ decision to call Dr.
Lennon to testify before the jury at the penalty phase—not
to mention their decision to call him a second time to
testify before the trial judge at sentencing—can only be
viewed as prejudicial to the outcome of the sentencing
proceeding. Not only did Dr. Lennon stun defense coun-
sel by revealing to the jury that Stevens had engaged in
necrophilia after the murder, he also gave the prosecution
a gift by expressing his belief in Stevens’s future danger-
ousness—a subject that the prosecution itself is not
permitted to argue as an aggravating circumstance under
Indiana law. See Wisehart v. Indiana, 693 N.E.2d 23, 60
(Ind. 1998). Not only did Dr. Lennon’s testimony almost
certainly influence the jury against Stevens, it also
evidently had a strong impact on the trial judge. One
cannot read the court’s sentencing order, with its refer-
ences to “cool deliberation,” “self-preservation,” and
“sexual gratification,” without seeing a close reflection of
Dr. Lennon’s written report and testimony.
We conclude that the conduct of Stevens’s lawyers at his
capital sentencing proceedings fell below the constitu-
tional minimum standard and that this was prejudicial to
Stevens. The Indiana Supreme Court’s ruling to the
contrary amounted to an unreasonable application of
Strickland.
24 No. 05-1442
C. Other Claims
In addition to his arguments about his counsels’ han-
dling of the expert psychological evidence, Stevens raises
two other complaints about his lawyers’ assistance on
which we comment briefly: that they were ineffective for
failing to object to the requirement that he wear a stun
belt throughout the trial and that the district court
improperly denied him discovery to pursue an argument
that prosecutors presented perjured testimony to the jury.
With regard to the stun belt, Stevens claims that a
criminal defendant has a clearly established constitu-
tional right to be free of restraints at trial and that he was
prejudiced because his fear of being electrocuted made him
appear withdrawn and unremorseful to the jury. The
Indiana Supreme Court found no merit in this claim.
While acknowledging that since the time of Stevens’s trial
it had decided that criminal defendants may not be
required to wear stun belts in Indiana courtrooms, see
Wrinkles v. Indiana, 749 N.E.2d 1179 (Ind. 2001), the
court concluded that Stevens was not prejudiced by being
forced to wear the device because the jurors were not
aware that he had it on and because juror testimony at the
post-conviction hearing did not indicate that the device
had a significant effect on Stevens’s demeanor.
The Indiana Supreme Court’s analysis of this claim is
not unreasonable. Although the six jurors who testified
at the post-conviction hearing stated that Stevens ap-
peared emotionally withdrawn at trial, Stevens also
appeared withdrawn in the videotaped confession in which
he was not wearing any restraint. It is thus impossible to
know whether Stevens’s demeanor at trial was a result of
being forced to wear the stun belt or just reflective of his
more general state of mind and the emotions he was
experiencing in the courtroom.
No. 05-1442 25
In an attempt to salvage this claim, Stevens contends
that the use of a stun belt during a criminal trial is
inherently prejudicial. The cases cited by Stevens do not,
however, go so far. They hold instead that a defendant’s
general right to be free of restraints in the courtroom is
not absolute, but rather it is based on a balancing of the
defendant’s right not to be viewed in a prejudicial light
by the jury against the court’s need for security. See Deck
v. Missouri, 544 U.S. 622, 633 (2005) (noting that al-
though “courts cannot routinely place defendants in
shackles or other physical restraints visible to the jury
during the penalty phase of a capital proceeding,” this
constitutional requirement “is not absolute” and so a judge
may take account of “special circumstances . . . that may
call for shackling”); Holbrook v. Flynn, 475 U.S. 560, 568-
69 (1986) (“holding that the conspicuous . . . deployment of
security personnel in a courtroom during trial” must be
evaluated on a “case-by-case” basis); Illinois v. Allen, 397
U.S. 337, 344 (1970) (declining to hold that the binding
and gagging of a criminal defendant is unconstitutional
“under any possible circumstances”). In keeping with this
line of cases, we have described the use of a stun belt as
a “method[ ] of restraint that minimize[s] the risk of
prejudice” because it is hidden beneath a defendant’s
clothing. United States v. Brooks, 125 F.3d 484, 502 (7th
Cir. 1997).
Stevens’s final argument is that the district court erred
by refusing to permit him to conduct discovery into an
alleged pre-trial deal between prosecutors and state
witness Tracy Eastin, in which prosecutors were going
to give Eastin a letter requesting leniency in exchange
for his testimony against Stevens. Rule 6(a) of the Rules
Governing Section 2254 Cases in the United States
District Courts states that “[a] party shall be entitled to
invoke the processes of discovery available under the
Federal Rules of Civil Procedure if, and to the extent that,
the judge in the exercise of his discretion and for good
26 No. 05-1442
cause shown grants leave to do so, but not otherwise.” The
district court concluded that discovery was not war-
ranted in this case because the letters Stevens presented
as evidence of the alleged deal showed only that prosecu-
tors had attempted to assist Eastin “to obtain a safe
housing assignment within the prison system so that he
could be free from a possible assault from fellow inmates
who were upset with his having testified against the
petitioner.”
Stevens argues only that the district court read the
correspondence between prosecutors and Eastin too
narrowly, and it should have inferred that a broader pre-
existing deal had been reached. Suffice it to say that we
are not persuaded. The district court’s interpretation of
the letters, while perhaps not the only possible way to
look at them, was reasonable, and its denial of discovery
on this basis was well within its discretion.
III
For the foregoing reasons, the judgment of the district
court is AFFIRMED to the extent that it denies habeas
corpus relief with respect to Stevens’s conviction, and it is
otherwise VACATED. The case is REMANDED with instruc-
tions to issue a conditional writ of habeas corpus that sets
aside the sentence of capital punishment unless, within
120 days, the State affords Stevens another penalty
hearing.
No. 05-1442 27
RIPPLE, Circuit Judge, concurring in part and dissenting
in part. I agree with the principal opinion in holding
that Mr. Stevens’ trial counsel was constitutionally
ineffective during the penalty phase of the trial, and,
therefore, that Mr. Stevens is entitled to a new sentencing
proceeding. I write separately because I believe that
counsel’s shortcomings not only affected Mr. Stevens’
sentence, but also his conviction. Therefore, I would grant
habeas relief with respect to his conviction as well as
his sentence.
1.
As the principal opinion explains, counsel for Mr.
Stevens were aware “that a comprehensive mental health
evaluation would be a crucial prerequisite for determining
trial strategy, yet after Dr. Lennon failed to provide them
with such an evaluation they neglected to consult an
alternative health expert.” Slip op. at 10. Counsel did not
offer any strategic basis for not seeking out additional
expert advice, and the State’s proffered explanation for
the reasonableness of counsel’s choices does not suffice to
justify their actions. See id. The principal opinion, there-
fore, concludes, correctly, that “[i]n light of Stevens’s
lawyers’ admissions and the overall weakness of the
defense they presented at trial, we are inclined to believe
that their performance was ineffective.” Slip op. at 12.1
1
As the principal opinion notes, counsel’s sole reliance on a
voluntary manslaughter defense is troubling for several reasons.
See slip op. at 12. First, the facts as presented to the trial court
did not justify a voluntary manslaughter instruction. Second,
securing a voluntary manslaughter instruction, like pursuing
a mental illness defense, would have opened the door to Eastin’s
testimony. See id. Finally, nothing precluded counsel from
(continued...)
28 No. 05-1442
The principal opinion turns then to Strickland’s prejudice
prong to determine whether Mr. Stevens’ conviction may
have been affected by counsel’s failure.
After reviewing the standards for mental illness under
Indiana law and also the standard for demonstrating
prejudice under Strickland, the principal opinion con-
cludes that “the Indiana Supreme Court’s conclusion
that no jury could conclude that Stevens did not ap-
preciate the wrongfulness of his conduct at the time of
the murder was not implausible.” Id. at 14. In other
words, the Supreme Court of Indiana’s conclusion—that
Mr. Stevens had not suffered any prejudice as a result of
his counsel’s missteps—was not unreasonable.
2.
In reaching this conclusion, I believe that the principal
opinion reads the decision of the Supreme Court of Indiana
too broadly. With respect to the question of whether trial
counsel’s investigation of the expert was adequate, the
Supreme Court of Indiana concluded: “The trial court
determined that defense counsel adequately investigated
issues of substance abuse and mental illness and reason-
ably chose to pursue a different strategy. The post convic-
tion court did not err in denying relief on this claim.”
Stevens v. State, 770 N.E.2d 739, 749 (Ind. 2002) (footnote
omitted). This language speaks in terms of attorney
performance—the focus of Strickland’s first prong—rather
1
(...continued)
pursuing a voluntary manslaughter defense and at the same
time presenting evidence of mental illness. Both focus on the
defendant’s ability to form the requisite criminal intent to
commit murder, and the record does not suggest any justifica-
tion for only pursuing the former course.
No. 05-1442 29
than to prejudice—the focus of Strickland’s second prong.
Later in its opinion, the Supreme Court of Indiana also
addresses counsel’s decision to present a voluntary man-
slaughter theory as opposed to presenting a mental disease
defense. After reviewing counsel’s actions, the state
supreme court again uses language that speaks to the
performance inquiry of the first prong of Strickland: “The
post-conviction court found that counsel’s decision to
pursue the voluntary manslaughter strategy, while
ultimately unsuccessful, did not amount to deficient
performance.” Id. at 753. And, again, the Supreme Court
of Indiana upheld that decision: “We conclude that the
evidence as a whole does not lead unerringly and unmis-
takably to a decision opposite that reached by the post-
conviction court, and we find that defense counsel’s
choice of defense theory did not constitute ineffective
assistance of counsel.” Id. In sum, the Supreme Court of
Indiana rested its rejection of the merits of Mr. Stevens’
ineffective assistance of counsel claim on Strickland’s
performance prong; it did not address directly the question
of prejudice.
3.
AEDPA instructs that, in the usual case, we apply
a deferential standard to a state-court determination
that is challenged by way of a habeas petition. See Canaan
v. McBride, 395 F.3d 376, 382 (7th Cir. 2005) (“Ordinarily,
§ 2254(d) requires that we determine whether the state
court’s decision was ‘contrary to, or involved an unreason-
able application of, clearly established Federal law as
determined by the Supreme Court,’ or ‘was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’ ”). “This
standard only applies, however, to a claim that was
adjudicated on the merits in State court proceedings.” Id.
30 No. 05-1442
(internal quotation marks and citations omitted). “As a
practical matter, a federal court cannot apply the deferen-
tial standard provided by § 2254(d) in the absence of any
state court decision on the issue.” Id. This principle is
equally applicable to the separate inquiries under each
prong of Strickland. In the words of the Supreme Court,
“our review is not circumscribed by a state court conclu-
sion with respect to prejudice, as neither of the state
courts below reached this prong of the Strickland analy-
sis.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). Thus,
because the Supreme Court of Indiana did not reach the
question of prejudice, we need not apply AEDPA
deference;2 we look to see only whether there is a reason-
2
In addition to considering the decision of the Supreme Court
of Indiana, Judge Manion suggests that, in assessing the
question of prejudice, we should look at rationale relied upon by
the state trial court as well, specifically the state trial court’s
“finding that the additional psychological evidence altered the
nature of the sexual encounters between Stevens and Zachary.”
Concurring op. at 41-42. Judge Manion acknowledges that “[t]he
Supreme Court of Indiana did not specifically mention the
different description of the sexual encounter, but never rejected
the trial court’s findings and twice stated that additional
evidence ‘would have opened the door to the admission of
substantial incriminating evidence not otherwise presented
during the guilt phase.’ ” Id. at 42 (quoting Stevens v. State, 770
N.E.2d 739, 753 (Ind. 2002)).
For purposes of our review under AEDPA, the operative state-
court decision “is that of the last state court to address the
claim on the merits.” Garth v. Davis, 470 F.3d 702, 710 (7th Cir.
2006). In this case, the Supreme Court of Indiana, although
specifically mentioning other evidence that could have been
introduced had Mr. Stevens mounted a mental illness defense
(namely Eastin’s testimony), did not mention the alternative
description of Mr. Stevens’ last sexual encounter with Zachary.
This omission may have been inadvertent, or the evidence may
(continued...)
No. 05-1442 31
able probability that, but for counsel’s errors, the result of
the trial would have been different.
4.
In this case, the evidence presented at Mr. Stevens’ post-
conviction hearing established that Dr. Lennon’s ideas
concerning mental illness were “completely abandoned” by
the American Psychiatric Association in the 1980s and
that “anyone who subscribes to the ‘myth of mental illness’
2
(...continued)
have been encompassed by the reference to “substantial incrimi-
nating evidence.” However, it also may be the case that the
Supreme Court of Indiana did not agree with the trial court’s
conclusion that the additional facts fundamentally altered the
jury’s view of the “relationship” between Mr. Stevens and
Zachary. One of the rationales for modern statutory rape laws
is that sexual relations with a minor, especially one as young
as Zachary, are “inherently nonconsensual.” See, e.g., Daryl J.
Olszewski, Comment, Statutory Rape in Wisconsin: History,
Rationale & the Need for Reform, 89 Marq. L. Rev. 693, 699
(2006). The Supreme Court of Indiana may have concluded
that, even absent this evidence that the last encounter was
forcible, not consensual, the jury already would have considered
Mr. Stevens to be a sexual predator. In short, the jury’s view
would not have changed with the introduction of this addi-
tional evidence.
Thus, even assuming that the Supreme Court of Indiana’s
commentary on “open[ing] the door to the admission of substan-
tial incriminating evidence,” Stevens, 770 N.E.2d at 753, is meant
to address Strickland’s second prong, it is not at all clear that
the Supreme Court of Indiana meant to encompass within this
statement reference to the state trial court’s findings concern-
ing the nature of the relationship between Zachary and Mr.
Stevens. Consequently, these findings should not factor into
this court’s AEDPA analysis.
32 No. 05-1442
is not really in the mainstream of current thought among
professionals.” Post Conviction Record (“PCR”) at 2015
(testimony of Dr. Kaplan). Mr. Stevens’ counsel “had
concluded that Dr. Lennon was [a] ‘quack,’ ” but did not
engage in further, critical investigation of Dr. Lennon’s
testimony or his theories that would have led them to
seek the assistance of another expert. Slip op. at 20.
Had Mr. Stevens’ counsel sufficiently investigated Dr.
Lennon’s testimony, and, as a result, secured additional
expert evaluation, the jury would have been presented
with a psychiatric explanation for Mr. Stevens’ actions. At
the state post-conviction hearing, Dr. Kaplan testified
that, at the time Mr. Stevens committed the offense, “he
was laboring under dissociative disorder not otherwise
specified, borderline personality disorder, and intoxication
from LSD and the aftereffects of marijuana,” PCR at 2004,
and that Mr. Stevens’ capacity to make a personal choice
at the time of the crime was “nil,” id. at 2029. Dr. Coons
echoed Dr. Kaplan’s diagnoses, see id. at 1885-86, and also
concluded that, at the time of the offense, Mr. Stevens
was “laboring under extreme emotional disturbance” and
was impaired in his ability both to conform his conduct to
the requirements of the law and to appreciate the wrong-
fulness of his conduct, id. at 1891-92. In short, had counsel
secured an expert who adhered to mainstream theories
within the psychiatric and psychological communities, the
expert would have presented evidence establishing the
elements of a mental illness defense under Indiana law.
See slip op. at 13 (quoting Ind. Code § 35-41-3-6).
Given this evidence, I believe that there is at least a
reasonable probability that, had the jury been privy to
this evidence, its result would have been different. I must
respectfully register my disagreement with the principal
opinion that, in these circumstances, there is a fundamen-
tal difference between mounting an insanity defense and
establishing statutory mitigating factors for purposes of
No. 05-1442 33
capital sentencing. See slip op. at 22. Here, the experts not
only presented evidence that could establish that Mr.
Stevens was operating “under the influence” of a mental
disease at the time of the murder—a mitigating factor
under Indiana’s capital sentencing law, see Ind. Code § 35-
50-2-9(c)(2), but also that he was “unable to appreciate the
wrongfulness of the conduct at the time of the
offense”—a defense to the crime, see Ind. Code § 35-41-3-6.
Additionally, I believe that the principal opinion over-
states the downside to presenting a mental disease defense
during the guilt phase. The principal opinion states that
“[t]he strategic reasons that might, at a stretch, have
justified this decision at the guilt phase, fall apart when
we consider that at the sentencing phase Stevens had
nothing left to lose.” Slip op. at 20. As a practical matter,
Mr. Stevens had nothing to lose at the guilt phase. Absent
expert testimony that, at the time of the killing, Mr.
Stevens’ actions were caused by a mental disorder and he
was unable to control his actions, the jury was left with no
other alternative than to conclude that Mr. Stevens not
only chose to engage in predatory pedophilia, but also
that he willingly disposed of his victims as dictated by his
own interests.
5.
Furthermore, even if the decision of the Supreme Court
of Indiana, either by itself or in conjunction with the post-
conviction trial court’s decision, see Stevens, 770 N.E.2d
at 749 n.5, could be construed as reaching Strickland’s
prejudice prong, I could not join the principal opinion’s
conclusion that the decision of the Supreme Court of
Indiana was a reasonable one. The expert testimony
during the post-conviction hearing shows that Mr. Stevens’
upbringing was “a recipe for developing someone with a
dissociative disorder.” PCR at 2020. Both experts testified
34 No. 05-1442
that this disorder, in conjunction with Mr. Stevens’ other
infirmities, caused him to kill Zachary and prevented
him from recognizing the wrongfulness of his actions.
Additionally, Dr. Kaplan explained how the nature of
Mr. Stevens’ disorders and the events leading to the
killing of Zachary were inconsistent with premeditation.
Because the testimony of competent experts would have
explained Mr. Stevens’ actions in terms of his mental
illness and also would have diminished the impact of any
inculpating evidence of premeditation, I do not believe that
a determination that Mr. Stevens was not prejudiced by
his counsel’s lapse of judgment could be characterized as
a reasonable one.
Conclusion
For the foregoing reasons, I not only would grant Mr.
Stevens habeas relief with respect to his sentence, I also
would grant the writ with respect to his conviction. On this
ground, I respectfully dissent in part from the judgment
of the court.
MANION, Circuit Judge, concurring in part and dissent-
ing in part. I join the opinion of the court as to part II-C
regarding the claims concerning the stun belt and discov-
ery issues. I concur with Judge Wood in denying habeas
relief from the conviction, but write separately to explain
my agreement with the state court’s reasoning. I respect-
fully dissent from the granting of habeas relief for the
No. 05-1442 35
death penalty sentence because I conclude that the state
court’s decision denying collateral relief did not include
unreasonable determinations of the facts and was not
contrary to or an unreasonable application of Supreme
Court precedent.
In May 1993 Christopher Stevens was released on
probation from the Marion County jail in Indiana where he
had been serving a sentence for child molestation. He
moved in with his father, whose home was in the same
subdivision as that of ten-year-old Zachary Snider’s family.
In the early summer, Stevens attended and videotaped
one of Zachary’s Little League games and later, with his
father’s permission, took Zachary fishing. Stevens’s
relationship with Zachary culminated in sexual contact
with him. Because a fuller recitation of the facts is sig-
nificant to evaluating and understanding the Supreme
Court of Indiana’s decision, the following is a portion of
that court’s factual findings:
In the videotaped confession . . . Stevens told the
officers that on Thursday, July 15, Zachary visited
Stevens in the early afternoon, but stayed only for a
short time, saying that he would return after he had
picked up some money, talked to his father, and
changed his clothes. When he returned, Zachary and
Stevens talked for a while as Stevens flipped through
the channels on his television, and then the two went
to Stevens’ bedroom and “messed around,” which
mainly included the two performing fellatio on each
other but never anal sex. This activity was not new to
the pair, as they had had an ongoing sexual relation-
ship since shortly after Stevens returned to Stardust
Hills after serving his time in the Marion County jail.
After they “did stuff for awhile,” Zachary angrily
confronted Stevens with a rumor he had heard con-
cerning Stevens having sexual relations with Zachary’s
mother. Because of this rumor, Zachary threatened to
36 No. 05-1442
reveal Zachary and Stevens’ sexual relationship to his
parents. This threat made Stevens “real scared.” He
stated,
He said, he, he threatened to tell . . . about me and
him, and, uh, I’d just went through a bunch of
[expletive] in Indy, and that was just, just on my
mind. I was like, I just didn’t want to, thinking to
myself, you know, I just can’t go through all that
[expletive] again.
After Zachary’s threat, the two “messed around some
more,” which Stevens again stated meant “having sex.”
Once finished, Stevens led Zachary by the hand into
his brother’s room and the two got onto the bed.
Stevens took one of his brother’s pillows and placed it
over Zachary’s face in an attempt to suffocate him.
Zachary did not really resist; rather, “he just kept
sayin’ I love you, Chris; I love you, Chris.’ ” Because
the pillow “wasn’t doing anything,” Stevens looked
around the room and noticed a Sega Genesis controller
on the floor. He picked it up and, using the cord,
wrapped it around Zachary’s neck, at first just once
but then two or three times, and strangled the boy.
When Stevens “thought it was all over,” he removed
the cord from Zachary’s neck and proceeded to pace
back and forth between Stevens’ brother’s bedroom
and his own room looking at Zachary’s body and
contemplating what he would now do.
About five minutes later Zachary, while still uncon-
scious, began to take deep breaths. So, Stevens said,
“I went [into my kitchen] and got a trash bag and put
it over his head and wrapped it around his head, he
was unconscious so, you know, I knew he wouldn’t be
ripping it off his face and stuff.” Once the child had
suffocated, Stevens carried Zachary from his brother’s
bedroom into his own room and laid the boy’s body
on his bed. Stevens later revealed to a psychologist
No. 05-1442 37
for the defense that he killed for fear of having to
return to prison brought on by Zachary’s threat to tell.
Stevens then went out to the garage, pulled a trailer,
lawn mower, and grill onto the driveway to make room
for his car, brought his car into the garage, and shut
the garage door. He then placed Zachary’s bike1 in the
back of the car, went in and got Zachary’s body and
placed it also in the back of his car, and then covered
them both with a cover. Stevens then described in
detail how he drove out into the country and threw
Zachary’s body and bike over a bridge, naming the
roads he took to reach the remote location. Initially,
the bike got caught in a tree “where anybody could see
it if they walked by or drove by,” so Stevens “jumped
down there” and pulled both Zachary’s body and
bicycle beneath the bridge. In relating his state of
mind during the murder and immediately thereafter,
he described himself as “nervous and scared,” “all
frantic” and “not really thinking.”
Once home, Stevens telephoned Mark White to request
help in pushing the trailer in his driveway back into
his garage. After White assisted Stevens and left,
Stevens placed the mower and grill back in the garage,
and went back inside his house. Later that evening,
Stevens took a can of Lysol and sprayed down his car,
the cover used in the car to conceal the body and bike,
and his and his brother’s beds. He also played basket-
ball with White, during which time he saw the Sniders
driving around the neighborhood looking for Zachary.
When he and White finished playing basketball,
Stevens called Mrs. Snider to learn the status of their
1
[Footnote in original.] Zachary’s bike was already in the garage
because, Stevens stated, “whenever he comes over I have him put
his bike in the garage [. . . ] so [ ] nobody will see his bike there.”
38 No. 05-1442
search for Zachary, but did so under the guise of
inquiring about some rock concert tickets. During this
call, Mrs. Snider asked if Stevens had seen Zachary
that day, to which Stevens said, “No.” Mrs. Snider
then revealed that Zachary was missing, and Stevens
offered to help them look. Mrs. Snider replied that she
would call him if they needed his help. Although she
never called back, Stevens went over to their home
just before 9 p.m. As he talked with Mrs. Snider, he
saw a policeman arrive and walk up the Sniders’
driveway. Because Stevens “didn’t want to be around
the cop,” he told Mrs. Snider that he would “go check
a couple of places” and quickly departed. Stevens then
went to various houses asking the occupants if they
had seen Zachary.
Later that night Stevens returned to Zachary’s body
because he recalled leaving the plastic trash bag
wrapped around Zachary’s head. Stevens stated,
“I went back out there to get the trash bag cause,
I figured if you guys [the police] seen the trash bag and
looked in our house and seen the same kind of trash
bags and, and stuff.” Stevens described the trash bag
as one with handle ties, green outside and black
inside. Upon recovering the bag, Stevens drove away
from the scene and, after traveling some distance,
threw the bag out of his window. Upon returning to
Stardust Hills he again went to the Sniders’ house and
inquired whether they had heard anything yet, telling
them he was up at that late hour because he was
having trouble sleeping.
After the confession, the police searched for the trash
bag mentioned by Stevens. They found one matching
Stevens’ description on the side of the road about a
mile from where the body was located. While other
bags observed during their search all contained trash,
this one contained only road dust and debris, and
No. 05-1442 39
appeared to have “at one time contained something
that caused it to be stretched out,” Later that same
day, pursuant to a search warrant, police found sim-
ilar trash bags and a Sega Genesis video game and
controllers in Stevens’ home.
The body found by police under the bridge was later
identified through dental records as that of Zachary
Snider. Also, Mr. Snider later identified the bike found
with the body to be Zachary’s. The pathologist who
performed the autopsy, though unable to determine
the cause of death because of the state of decomposi-
tion, observed no evidence inconsistent with death by
either strangulation or suffocation. He found no
broken bones and no evidence of any penetrating
injury to the torso or lower extremities. When asked
about the potential for a natural cause of death, the
pathologist replied that the tissues of the heart, lungs,
liver, and kidneys available for examination showed no
signs of disease. The forensic entomologist who exam-
ined insect samples found in the body and in the soil
under the bridge placed the time of death sometime
between noon and sunset on July 15.
Stevens v. State of Ind., 691 N.E.2d 412, 418-19 (Ind. 1997)
(internal citations to the record omitted). Stevens was
charged with first degree murder, and trial preparations
and proceedings followed. The principal issue in this
appeal involves the expert testimony of a psychologist, Dr.
Lawrence Lennon. Dr. Lennon did not testify at the guilt
phase of the trial, only during the penalty phase and at
sentencing. Stevens claims that his counsel was ineffective
at both the guilt and penalty phases for retaining only
Dr. Lennon, whom Stevens characterizes as an inade-
quate and prejudicial expert. The state court denied post-
conviction relief on this basis.
To obtain habeas corpus relief in this court under
AEDPA, Stevens must show that the state court’s deter-
40 No. 05-1442
mination was contrary to or an unreasonable application
of Supreme Court precedent, or an unreasonable determi-
nation of the facts. Central to this appeal is the familiar
case of Strickland v. Washington, 466 U.S. 668 (1984).
Strickland requires a petitioner claiming ineffective
assistance of counsel to demonstrate both constitutionally
deficient performance and prejudice. In ineffective assis-
tance of counsel claims, this court has explained that,
[if] a state court has denied a Strickland claim on the
merits, under the AEDPA we generally review for clear
error. As we noted in Holman v. Gilmore, “Strickland
calls for inquiry into degrees; it is a balancing rather
than a bright-line approach . . . . This means that
only a clear error in applying Strickland’s standard
would support a writ of habeas corpus.” 126 F.3d 876,
881-82 (7th Cir. 1997). This is because “Strickland
builds in an element of deference to counsel’s choices
in conducting the litigation [and] § 2254(d)(1) adds a
layer of respect for a state court’s application of the
legal standard.” Id.
United States ex rel. Bell v. Pierson, 267 F.3d 544, 557 (7th
Cir. 2001) (emphasis added). We therefore review for
clear error in the Supreme Court of Indiana’s decision.
With respect to Strickland’s performance prong, I am not
“inclined to believe that [trial counsels’] performance
was ineffective,” at the guilt stage as Judge Wood’s opin-
ion suggests. Ante at 12. Nonetheless, I agree with Judge
Wood that the state court did not clearly err in applying
Supreme Court precedent regarding the guilt phase of the
trial because Stevens was not prejudiced by his counsels’
performance. The Supreme Court of Indiana cites the
correct standard to evaluate prejudice under Strickland,
specifically noting that Stevens must demonstrate “that
his counsels’ errors were so serious as to deprive him of
a fair trial because of a reasonable probability that, but
No. 05-1442 41
for counsel’s unprofessional errors, the result would have
been different.” Stevens v. State of Ind., 770 N.E.2d 739,
746 (Ind. 2002) (citing inter alia Strickland, 466 U.S. at
694). The Supreme Court of Indiana further clarified that
“[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. (citing Strick-
land, 466 U.S. at 694). Of course, “more than a correct
citation is needed to avoid a decision ‘contrary to’ clearly
established federal law.” Burgess v. Watters, 467 F.3d 676,
683 (7th Cir. 2006). The state court, however, proceeded
to apply this standard, concluding that an alternative
mental illness defense at the guilt phase “was not without
its pitfalls” because this defense
would have opened the door to the admission of
substantial incriminating evidence not otherwise
presented during the guilt phase. This evidence
included testimony of a witness that, upon the defen-
dant’s prior release from jail onto probation for a
previous conviction of child molesting, the defendant
had declared that he planned to kill his next child
molesting victim to avoid returning to jail.
Id. at 749; see also id. at 753. Furthermore, the Supreme
Court of Indiana noted that one of Stevens’s post-convic-
tion experts, Dr. Coons, “acknowledge[ed] that [Stevens]
could appreciate the wrongfulness of his conduct when he
took steps to hide Zachary’s body.” Id. at 749 n.5. Based on
this additional evidence, the Supreme Court of Indiana
noted that Dr. Coons’s testimony “would have had little
or no effect on the jury’s verdict . . . .” Id.Another piece of incriminating evidence that would
have come into evidence through the additional mental
health experts is a different description of the nature of
the sexual encounters between Stevens and Zachary. The
state trial court made a finding that the additional psycho-
logical evidence altered the nature of the sexual encoun-
42 No. 05-1442
ters between Stevens and Zachary. The understanding
at trial had been that the molestation was “consensual,”
but the testimony of Drs. Kaplan and Coons during the
state post-conviction hearing reveals a different story.
According to Dr. Kaplan, Zachary and Stevens were
wrestling around as play, and then [Stevens] grabbed
his shorts and, well, Zachary I think hit . . . Steven[s]’s
penis, and then [Stevens] grabbed his shorts, pulled
them down, and at that point, again, you know, he—he
had then forced himself on Zachary, made him, you
know, suck his penis, and . . . they had sexual rela-
tions. And then after the sexual relations were con-
cluded, Zachary told him, you know, “I’m going to tell
my mother about what you did to me.” And then,
again, he saw Zach as the victimizer now.
Kaplan earlier in his testimony provided the following
analysis:
In [Stevens’] mind, he was a seducer of children, not a
forced raper of children. So as long as he saw this
as what he felt to be consensual, he didn’t see any-
thing wrong with it. And that’s probably the greatest
problem for him with the Zachary murder is that this
was the first time he had forced himself on another
child and forcibly had sex. And to him, that was very,
very incongruent with his concept of who he was
and what sexual molestation is.
The Supreme Court of Indiana did not specifically men-
tion the different description of the sexual encounter, but
never rejected the trial court’s findings and twice stated
that additional mental illness evidence “would have
opened the door to the admission of substantial incriminat-
ing evidence not otherwise presented during the guilt
phase.” Stevens, 770 N.E.2d at 753; see also id. at 749. In
sum, the state court’s determination that Stevens did not
suffer prejudice from his counsels’ performance at the
No. 05-1442 43
guilt phase is not contrary to or an unreasonable applica-
tion of Supreme Court precedent. I therefore agree with
Judge Wood that Stevens is not entitled to habeas relief
from his conviction.
Proceeding to the penalty phase, just as the state court
did not err in upholding the conviction, the state court
similarly did not err in denying relief from the death
penalty sentence. I therefore respectfully disagree with
Judges Wood and Ripple regarding habeas relief from
the death penalty sentence.
The Supreme Court of Indiana concluded that the trial
attorneys “investigated the mental health issues through
the use of Dr. Lennon.” Stevens, 770 N.E.2d at 755. The
court further quoted with approval the trial court’s find-
ing that “ ‘[d]efense counsel’s investigation of Petitioner’s
mental health and prior use of drugs was reasonable’ ” and
that defense counsel pursued a “ ‘strategy of portraying the
petitioner as a passive victim of abuse’ ” at the penalty
phase. Id. at 754. Furthermore, the state trial court found
that based on the fuller description of Stevens’ relations
with Zachary that the new experts offered, “[t]he jury
would not consider such a violent, voracious predator as
someone deserving a penalty less than death.” See Stevens
Supp. App. at 65.
In his penalty phase testimony, Dr. Lennon testified
regarding Stevens’s emotional immaturity and the impact
of abuse and his mother’s use of drugs and alcohol on
Stevens’s development. This mitigation testimony was
in addition to testimony from a variety of Stevens’s
relatives and individuals who could testify about and
provide documentation regarding his deplorable childhood.
In this case, the Supreme Court of Indiana found that
Stevens’s counsel “presented various witnesses and
evidence showing various mitigating circumstances
including his parents’ divorce and his living in the homes
44 No. 05-1442
of different people while growing up, the defendant’s
troubled childhood including suffering childhood sexual
abuse, his adolescent alcohol and drug use and diagnoses
of passive personality, his depression and suicide at-
tempts, and his poor academic performance.” Stevens, 770
N.E.2d at 753; cf. Woods v. McBride, 430 F.3d 813, 825
(7th Cir. 2005) (noting that “[c]ounsel in this case actually
presented mitigation evidence during the penalty phase
rather than a half-hearted attempt to deflect culpability
from the defendant.”) (citing Wiggins v. Smith, 539 U.S.
510, 515-18, 526 (2003)). In the context of challenging
a death penalty sentence, “the question is whether there is
a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695. The prosecutors ar-
gued for three aggravating factors warranting the death
penalty, which the jury each found to be proven beyond a
reasonable doubt: that the defendant committed the
murder by intentionally killing the victim while commit-
ting child molestation, that the victim was under the age
of twelve, and that the defendant was on probation after
a felony conviction. The Supreme Court of Indiana
was “not persuaded that the evidence in the record un-
avoidably points towards an opposite result” from the
state trial court’s conclusion that counsel were not ineffec-
tive. Stevens, 770 N.E.2d at 755. Under the deferential
standard of AEDPA, this is not a decision that is contrary
to or an unreasonable application of Supreme Court
precedent.
It is true that Dr. Lennon failed to follow counsels’
instructions not to prepare a report, responded to the
prosecutor’s unexpected question regarding necrophilia,
and discussed his unusual form of therapy. He was not a
very good witness. Yet, his performance at the penalty
phase (his first testimony in the case, since he did not
No. 05-1442 45
testify at the guilt phase), does not render Stevens’s
counsels’ performance ineffective. More importantly, the
Supreme Court of Indiana’s conclusion that counsel
performed reasonably is not an unreasonable application
of Supreme Court precedent. Therefore it does not follow
that the jury or judge “would have concluded that the
balance of aggravating and mitigating circumstances did
not warrant death” if faced with additional expert testi-
mony presenting the diagnosis of disassociation. Strick-
land, 466 U.S. at 695. Having reviewed the videotaped
confession as well as the record, I do not find that the state
court’s determination was unreasonable. Consequently,
I respectfully dissent from granting habeas relief on the
death penalty sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-18-07