# Burris v. Parke

> District Court, N.D. Indiana · December 26, 1996 · 948 F. Supp. 1310

URL: https://www.frixlaw.com/law-library/cases/2098632

## Case

- **Full name:** Gary BURRIS, Petitioner, v. Al C. PARKE, Respondent
- **Court:** District Court, N.D. Indiana
- **Decided:** December 26, 1996
- **Citations:** 948 F. Supp. 1310; 1996 U.S. Dist. LEXIS 19117; 1996 WL 738963
- **Precedential status:** Published
- **Opinion:** Opinion by Sharp
- **Judges:** Allen Sharp
- **Cited by:** 11 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM AND ORDER
ALLEN SHARP, Chief Judge.
Nearly seventeen years after committing the crime for which he was found guilty and sentenced to death, and after an abundance of state and federal review, the petitioner, Gary Burris (“Burris”), now returns to this court for the third time pursuant to a petition for writ of habeas corpus under 28 U.S.C. § 2254 . The petition now before this court is Burris’s second § 2254 petition and was originally filed on November 14, 1995. This second petition has already taken one extended tour of the Seventh Federal Circuit. Now, pursuant to the order of the United States Court of Appeals for the Seventh Circuit dated September 12, 1996,
see Burris v. Parke,
95 F.3d 465 (7th Cir.1996), this court is required to address the merits of Burris’s second federal habeas petition. In furtherance of the Seventh Circuit’s mandate, this court held oral argument on this petition in Lafayette, Indiana, on November 18, 1996. This memorandum will follow up on the proceedings held in open court in Lafayette on November 18 and deal with the issues that were there presented.
I. FACTUAL BACKGROUND
The facts underlying Burris’s death sentence now before the court were succinctly summarized by the Supreme Court of Indiana on direct appeal of his felony murder conviction and first death sentence. The Su
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preme Court of Indiana found the facts underlying Burris’s guilt to be as follows:
The evidence most favorable to the State reveals that on the morning of January 29, 1980, Gwen Tevebaugh and her neighbor, Calvin Howard, discovered the body of a dead man in an alley in the 3200 block of East Fall Creek Parkway in Indianapolis. Tevebaugh had been awakened earlier that morning by a noise and then heard what she clearly knew to be a gunshot. Tevebaugh was not able to see anything because of the darkness but she noted the time of 2:23 on her clock.
After Mr. Howard phoned the police, Sergeant Donald Campbell and Officer Jon Layton received the dispatch on the homicide. Upon arriving at the alley, the two men discovered the body, nude except for a pair of socks, lying face down and stuck to the ground by a pool of its frozen blood. Identification found at the scene showed that the deceased was Kenneth W. Chambers, age 31. The police also noticed what appeared to be a small caliber gunshot wound to the right temple.
Elizabeth Gardner, a dispatcher for the Northside Cab Company, identified Chambers as a driver for the company. Chambers drove Cab 305. On the morning of January 29, 1980, both Chambers and Gardner were working. Around 1:30 a.m. Gardner received a call for a cab to pick up fares at the 1800 block of North College. Gardner put a request out for a cab and Chambers responded that he would take the call. Both parties stipulated that a call to Northside Cab was received at 1:48 a.m. for transportation from 1821 North College to 1501 East 38th and that this call was assigned to Cab 305. The call was made by a person identified as “Williams.”
1821 North College is the address of the M & J Social Club where Thelma Williams was employed as a barmaid. Williams testified that she telephoned the cab company at the request of defendant Burris. Williams said she knew the defendant and stated he usually ran around with two other men, named “Emmet” and “James.” As Williams recalled, Emmet was with Burris at the M & J Social Club on the morning of the murder. Williams assumed the cab arrived within fifteen minutes of her call because Burris left at that time.
Carol Wilkins was another witness called by the State. At the time of the murder, Carol Wilkins was living at 1827 North College above the M & J Social Club. Carol stated that defendant Burris rented the apartment and that he was dating her sister, Debra Wilkins. On January 28, the day before the murder, the defendant arrived at the apartment around 5:40 p.m. Carol testified that James Thompson and Emmet Merriweather joined the defendant. Burris had told Carol that he had a deadline to pay $230 back rent and telephone bills. That evening when Burris left the apartment, he put a .38 pistol in his pocket. Carol identified State’s Exhibit 16 as being similar to the .38 pistol.
Later, Burris, Merriweather, and Thompson returned to the apartment. Burris was carrying a clipboard with a paper on it, which he tossed on the bed. Carol had ridden in taxicabs before and recognized the paper on the clipboard as a cab driver’s run sheet. The defendant burned the run sheet and flushed the remains down the toilet.
Merriweather and the defendant then had a dispute over a gun. The defendant wanted to give Merriweather the gun but Merriweather refused to take it. The defendant kept the gun. Carol also saw that the defendant had quite a bit of money. There were two wads of money, big enough to create a noticeable bulge in both of the defendant’s front pockets. Carol later heard about the cab driver who had been shot and she put the pieces together.
After some police investigation, Emmet Merriweather and James Thompson were arrested in connection with the death of Chambers. Both men, along with other sources, informed the police that the defendant was with them at the time of the murder. Acting upon information that defendant Burris was at Debra Wilkins’ apartment and planned to leave town, the police moved quickly and arrested Burris at 2035 North Meridian in Indianapolis. A search of the apartment revealed that a
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sawed-off shotgun and a .38 pistol were hidden in a stereo speaker. A member of the Indianapolis Police Department Crime Lab testified that the .38 pistol was used to kill Chambers. This witness, during the penalty phase of the trial, also testified that the pull of the pistol’s trigger made it a little harder to shoot than an average weapon. The gun had no observable mechanical defect and did not exhibit any propensity for accidental discharge.
A pathologist, Dr. Robert Ransburg, testified that the body had a gunshot entrance wound in the right temple. Dr. Ransburg stated that the wound was a “contact wound.” By this he meant that the muzzle of the gun would have had to have been held against the temple to create such a wound. Other forensic specialists testified that the victim’s blood type and the bloodstain on the recovered .38 pistol were both type A.
One of the chief witnesses for the prosecution was William Allen Kirby. Kirby had shared a cell with defendant Burris in the Marion County Jail where the defendant admitted his involvement and culpability in the murder. Kirby agreed to testify against the defendant and recounted the defendant’s story as follows: The defendant and his friends were in need of money. They entered a dance contest but failed to win anything. They took a cab to the “M & L Club” (Kirby said he was not sure “M & J Social Club” was what the defendant said but he knew the name was alphabetical) and on the way to the club, the defendant saw an envelope containing money on the front seat of the cab. Kirby asked why the men did not take the money at that time. The defendant replied they were not prepared to do so because they did not have their “roscoes” (pistols).
Inside the “M
&
J Social Club” the defendant said to his friends that he was ready to get some “paper” (money). Defendant Burris told his accomplices that he would kill during the robbery if that would keep him out of prison. Burris went up to his apartment, picked up a pistol, and had Thelma Williams call for a cab.
After the cab arrived, the defendant and the other two men told the driver to proceed to 21st and Alvord. -After proceeding only a couple of blocks on 21st, the three men drew their pistols, forced the driver to call in that his run was completed, and ordered the driver into the back seat. The cab was driven to an alley off 34th Street where the cab driver’s clothes were thrown out. Then, in an alley between Guilford and Fall Creek Parkway, the driver was forced out of the cab. The driver pleaded for his life, saying, “Man, take the money, take the cab, leave me alone, I’m not going to bust you, you know, I’m a street fellow, too.” This plea for mercy had no effect on the defendant. The victim’s hands were bound and then the defendant shot Chambers in the head. The defendant told Kirby he used .38 hollow point shells because he thought they would explode on impact and thus leave nothing that could be identified through ballistics.
Burris v. State,
465 N.E.2d 171, 175-77 (Ind.1984), ce
rt. denied,
469 U.S. 1132 , 105 S.Ct. 816 , 83 L.Ed.2d 809 (1985).
II. PROCEDURAL HISTORY
As Justice Fortas once wrote, “a habeas corpus proceeding must not be allowed to founder in a ‘procedural morass.’ ”
Harris v. Nelson,
394 U.S. 286, 291 , 89 S.Ct. 1082, 1086 , 22 L.Ed.2d 281 (1969) (quoting
Price v. Johnston,
334 U.S. 266, 269 , 68 S.Ct. 1049, 1052 , 92 L.Ed. 1356 (1948)). Upon review of the extensive record in this case, it appears that Justice Fortas’s admonition has not been adhered to. This case began in late January 1980 when Burris was arrested for the murder of Kenneth Chambers, an African-American taxi driver from Indianapolis, Indiana. The State of Indiana sought the death penalty in Burris’s case because the murder was an intentional killing committed in the course of a robbery.
See
Ind.Code §§ 35-50-2-9(a), (b)(1)(G). On December 4, 1980, a jury in the Superior Court of Marion County convicted Burris for the felony murder of Kenneth Chambers. The following day, the same jury recommended that Burris receive the death penalty for his crimes. On February 20, 1981, Judge John Tranberg agreed with the jury’s recommendation and sen
*1316
tenced Bums to death. Burris’s conviction and sentence were affirmed by the Supreme Court of Indiana on June 22, 1984, and the Supreme Court of the United States denied Burris’s petition for writ of certiorari on January 7,1985.
After failing on his direct appeal, Burris filed a petition for post-conviction relief (“PCR”) in the Marion County Superior Court. On May 30, 1986, Judge Roy Jones, acting as special judge, denied Burris’s PCR petition. Burris then appealed this decision directly to the Supreme Court of Indiana. On August 24, 1990, the Supreme Court of Indiana affirmed the denial of Burris’s PCR petition as to the determination of guilt. However, in a 3-2 decision, the Supreme Court reversed the post-conviction court’s finding that Burris was not denied the effective assistance of counsel at the penalty phase of his trial and remanded the case to the trial court for a new sentencing trial.
Burris v. State,
558 N.E.2d at 1076-77. It is this decision which bifurcated Burris’s conviction from his sentence, and the point when the petitioner’s claims began the trek into the “judicial morass.”
The court will first address the procedural background of Burris’s conviction. On December 20, 1992, Burris first sought federal review of his felony murder conviction in this court. He filed this first habeas petition even though the direct appeal challenging his second death sentence was still pending before the Supreme Court of Indiana. For the first habeas petition, David Vandercoy, a professor at Valparaiso University School of Law, was appointed as counsel for Burris. Both Burris and Professor Vandercoy were well aware that issues affecting Burris’s second death sentence had not yet been exhausted, but the decision was made to confine Burris’s first habeas petition to claims affecting only his conviction. On January 27, 1994, after careful and extensive consideration, this court denied Burris’s first habeas petition on the merits.
Burris v. Farley,
845 F.Supp. 636 (N.D.Ind.1994). On March 28, 1995, the United States Court of Appeals for the Seventh Circuit, speaking through Circuit Judge Easterbrook, affirmed this court’s denial of Burris’s first habeas petition.
Burns v. Farley,
51 F.3d 655 (7th Cir.1995). Burris did not seek a writ of certiorari on his first habeas petition.
The procedural history of Burris’s sentence after the Supreme Court of Indiana’s remand to the state trial court began when a completely new jury was empaneled for the second sentencing trial in the Marion County Superior Court. After hearing the evidence presented during the second sentencing trial, this jury was unable to reach a unanimous sentencing recommendation and, consequently, was discharged by Judge Patricia J. Gifford. Judge Gifford then sentenced Burris to death for the second time on November 22, 1991.
1
Burris again took a direct appeal of his second death sentence to the Supreme Court of Indiana. This time, on November 4, 1994, the Supreme Court affirmed Judge Gifford’s decision to sentence Burris to death.
Burris v. State,
642 N.E.2d 961 (Ind.1994). Subsequently, the Supreme Court of the United States denied Burris’s petition for writ of certiorari.
Burris v. Indiana,
-U.S. -, 116 S.Ct. 319 , 133 L.Ed.2d 221 (1995).
On June 14, 1995, the Marion County Superior Court set Burris’s execution date for July 19, 1995. However on June 16, 1995, Burris filed with the state trial court a notice of intent to file a new PCR petition to challenge, for the first time, aspects of his second death sentence. On June 30, 1995, the state trial court held that any PCR petition filed by Burris would be considered a successive petition that must be first tendered to the Supreme Court of Indiana pursuant to Rule 1, Section 12 of the Indiana Rules of Procedure for Post-Conviction Remedies. Also on June 30, the Marion County Superior Court stayed the July 19 execution date. On July 27, 1995, the Supreme Court of Indiana held that the state trial court correctly determined that any PCR petition that Burris intended to file would be successive. Howev
*1317
er, the Supreme Court also held that the state trial court lacked jurisdiction to stay Burris’s execution. As a result, the Supreme Court vacated the stay, and ordered that another execution date be set by the state trial court.
Judge Gifford subsequently set September 13, 1995, as the new date for Burris’s execution. On August 22, 1995, at Burris’s request, the Supreme Court of Indiana vacated the September 13 execution date and granted the petitioner until September 30, 1995, to file a successive PCR petition. In such a petition, Burris was required to state with particularity the issues and evidence which would establish that a successive PCR proceeding was warranted. On September 29, 1995, by counsel acting
pro bono,
Burris filed his “successive” PCR petition. However, the PCR petition was denied by the Supreme Court of Indiana on October 19, 1995. Subsequently, the state trial court set November 29, 1995, as the new execution date. On October 26, 1995, Burris requested the Supreme Court of Indiana to stay the execution date pending the filing of his second habeas petition in federal court. However, the Supreme Court denied this request.
As a result, Burris filed his second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 14, 1995 — little more than two weeks before the scheduled execution date. In this second petition (the petition that is now before the court), Burris raises six separate constitutional challenges to his second death sentence. The State of Indiana responded to that petition by asserting the affirmative defense of abuse of the writ. On November 20, 1995, this court dismissed Burris’s second petition as an abuse of the writ. Bums appealed that decision to the United States Court of Appeals for the Seventh Circuit. The panel of the Seventh Circuit assigned to the Burris case affirmed this court’s dismissal of the second petition, with Senior Circuit Judge Cudahy dissenting.
Burris v. Parke,
72 F.3d 47 (7th Cir.1995) (per curiam).
However, shortly before Burris was due to be executed, the Seventh Circuit granted the petitioner a stay of execution and decided to hear the ease
en bane.
On December 19, 1995, oral argument was heard on this case
en bane.
Before the Seventh Circuit rendered a decision on the appeal, the President of the United States, on April 24, 1996, signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”), which contains provisions that amend the scope of federal habeas corpus for prisoners generally and inmates sentenced to death row in particular. Consequently, the Seventh Circuit ordered that the case be reheard again in order to consider how the passage of the AEDPA affected Burris’s petition.
On September 12, 1996, the Seventh Circuit, in an opinion authored by Chief Circuit Judge Posner, reversed this court’s decision, holding that the State of Indiana waived its abuse of the writ defense in the first petition.
Burris v. Parke,
95 F.3d 465 (7th Cir.1996)
(en
bane) (Manion, J. and Kanne, J., concurring). Specifically, the Seventh Circuit held that § 106(b)(2) of the AEDPA (amending 28 U.S.C. § 2244 (b)(2) which deals with the filing of successive habeas petitions) was not to be applied retroactively to Burris’s second petition.
Id.
at 469 . Thus, applying the law as it existed prior to the AEDPA, the court found that Burris had been “mousetrapped” in the first petition since this court and the State of Indiana neglected to inform him during oral argument of the implications of proceeding solely on the determination of his guilt without waiting for the death sentence claims to be fully exhausted in the courts of the State of Indiana.
Id.
at 469-70 .
2
The court held:
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We are mindful that abuse of the writ is an affirmative defense and that, technically speaking, the pleading of the defense is premature until a second petition is filed; for it is a defense to the second petition, not to the first. But we must be realistic about the circumstances in which the state declined to mention the possibility of such a defense. For page after page of transcript the district judge and the lawyers discussed the ripeness (exhaustion of state remedies) and merits of the petition. The judge was an active participant, displaying his extensive knowledge of habeas corpus jurisprudence. The state urged him to decide the petition on the merits then and there. Everyone knew that Burris had been resentenced to death and that his appeal was pending. Yet no one saw fit to warn Burris of the possible consequences. No one suggested that maybe the district judge should stay action on the petition until, state remedies exhausted, Burris could add a challenge to his new sentence. Silence can mislead, and when it does it is treated as speech. We think that in the circumstances the state’s silence concerning the implications of an immediate decision on the petition was tantamount to a statement that for the sake of a prompt decision on the merits of Burris’s challenge to his conviction the state would forgo the defense of abuse of the writ should he file a subsequent petition limited to the sentence.
Id.
at 470 .
3
In essence, the Seventh Circuit held that the State waived its affirmative defense even before it was possible and proper to raise it in the second habeas petition. Accordingly, the Seventh Circuit remanded Burris’s second habeas petition to this court for a determination on the merits.
4
Id.
On September 19, 1996, this court ordered the parties to submit supplemental briefs following the Seventh Circuit’s decision. The petitioner, by counsel, filed his supplemental memorandum on October 21, 1996. The respondent, by the Indiana Attorney General, filed his supplemental brief .on November 12, 1996. On November 18, 1996, consistent with the Seventh Circuit’s remand order, this court heard oral argument on the merits of Burris’s second habeas petition in Lafayette, Indiana.
In this petition, the petitioner raises six separate constitutional challenges. First, he claims that his counsel during the second sentencing trial — court appointed Indianapolis attorneys Michael R. Fisher and R. Mark Inman — -were ineffective because they failed to adequately investigate and introduce mitigating evidence which they allegedly possessed at the time of the second sentencing trial. Second, the petitioner alleges that both sentencing counsel and counsel on appeal — Mr. Inman and court appointed Indianapolis attorney Nancy L. Broyles — were ineffective when they either failed to object to, to preserve for appeal and to present on appeal six separate grounds for relief.
Third, Burris claims that the state trial court violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by allowing the State to introduce, and the jury to consider, evidence pertaining to an improper, non-statutory aggravating circumstance — -victim impact evidence. Fourth, Burris argues that Indiana’s death penalty statute fails to narrow the class of death penalty-eligible defendants, making his second death sentence arbitrary and capricious under the Eighth and Fourteenth Amendments. Fifth, he claims that the Indiana death penalty statute as applied
*1319
in this case is unconstitutional because the sole aggravating factor alleged by the State also functioned as an element of the crime and, thus, required a jury determination. Sixth, Burris argues that the state trial court violated the Eighth and Fourteenth Amendments by improperly overruling his objection to a jury instruction that erroneously informed the jurors that, if they did not recommend the death penalty, the state trial court was mandated to sentence Burris to a term of years in prison.
Additionally, the petitioner argues that he is entitled to receive an evidentiary hearing on his claims that sentencing and appellate counsel were constitutionally ineffective because he did not receive a full and fair opportunity to present evidence on these claims in his state court petition for post-conviction relief. In conjunction with this request, Burris also moves the court to appoint a neuropsychologist, pursuant to 21 U.S.C. § 848 (q)(9) and (10), to examine him in order to develop his claim that he suffers from brain dysfunction or other neurocognitive defect. Because the Seventh Circuit has decided that the petition before the court is a successive petition which does not abuse the writ under pre-AEDPA standards, this court must now address the standards of review which are applicable to the merits of this petition following the enactment of the AED-PA.
III. STANDARDS OF REVIEW
In order to keep the nature of habeas corpus in the United States courts in proper perspective, all concerned are referred to this court’s memorandum and order in
Smith v. Farley,
873 F.Supp. 1199, 1203-05 (N.D.Ind.1994), which briefly traces the origins of habeas corpus jurisprudence in the United States.
A claim under 28 U.S.C. § 2254 requires the federal habeas court to ensure that the state criminal conviction was not achieved at the expense of the petitioner’s constitutional rights. Justice Stewart, speaking for the Supreme Court of the United States in
Jackson v. Virginia,
443 U.S. 307 , 99 S.Ct. 2781 ,
61
L.Ed.2d 560 (1979), described the role
of
the federal district courts in habeas proceedings:
A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress .in § 2254 has .selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur— reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply hot to be achieved at' the expense of a constitutional right — is not one that can be so lightly abjured.
Id.
at 323, 99 S.Ct. at 2791 (citation omitted).
The Congress of the United States has recently codified the holdings of
Jackson
and its progeny through the AEDPA, which amended 28 U.S.C. § 2254 , in relevant part, as follows:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant .to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254 (e)(1).
When Congress passed the AEDPA, the standards of review that the court must apply to the merits of a petition for writ of habeas corpus under § 2254 also changed significantly. Section 2254 was further amended in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that
*1320
was adjudicated on the merits in the State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d).
In
Lindh v. Murphy,
96 F.3d 856 (7th Cir.1996),
5
the Seventh Circuit, speaking through Circuit Judge Easterbrook, held that § 2254(d), as amended, should be applied to petitions pending when the AEDPA was enacted. The Seventh Circuit found that “[t]he 1996 Act does not ‘impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’ ”
Id.
at 867 (quoting
Landgraf v. USI Film Products,
511 U.S. 244, 280-81 , 114 S.Ct. 1483, 1505 , 128 L.Ed.2d 229 (1994)).
Burris argues that based upon the unique factual background of this case, coupled with an analysis of
Lindh ,
the court must apply a
de novo
standard of review on his ineffective assistance of counsel claims. He contends that the Supreme Court of Indiana denied him an opportunity to litigate fully his ineffective assistance claims during post-conviction review in the state courts, as required by
Lindh. See
96 F.3d at 871 . Further, he claims that said failure to litigate the claims in the state courts was through no fault of his own. In addition, the petitioner claims that the decision by Supreme Court of Indiana not to allow him to file a PCR petition on the second sentencing trial cannot be considered a careful and well-reasoned opinion requiring deference by this court — again, requiring this court to review the ineffective assistance claims
de novo. See Id.
at 877.
The State contends that the court should reject Burris’s argument for
de novo
review. The respondent argues that the Supreme Court of Indiana reviewed Burris’s PCR petition, the affidavits attached thereto, its own three prior opinions in this case, and the various orders which it had issued before deciding that Burris’s PCR petition on the second sentencing trial was successive under Indiana law. Thus, the respondent requests that the court analyze Burris’s ineffective assistance claims under the amended standards of § 2254(d). The decision at issue here is the October 19, 1995, ruling of the Supreme Court of Indiana that denied Burris’s PCR petition on the second sentencing trial as a successive petition under Indiana Post-Conviction Rule 1 § 12. In that order, the Supreme Court of Indiana, speaking through Chief Justice Shepard, held:
Burris now claims his counsel was ineffective in connection with his sentencing, primarily because certain facts were not presented as part of his mitigation strategy. He asserts these facts should be considered in a successive post-conviction proceeding. The Court has reviewed these claims and the materials submitted in sup
*1321
port of them. Though pled as an ineffective assistance claim, Burris’s contentions are essentially an assault on the adequacy of the mitigating evidence submitted on his behalf, an issue we have already examined twice. We find that these claims are either barred by the doctrine of res
judicata
or otherwise barred by the Indiana Rules of Procedure for Post-Conviction Relief.
Burris v. State,
No. 49S00-9509-SD-1112, at 1-2 (Ind. Oct. 19, 1995).
This court must review the above-referenced order of the Supreme Court of Indiana to determine whether it can be considered a careful and well-reasoned opinion requiring deference under
Lindh,
96 F.3d at 877 . In
Lindh ,
the Seventh Circuit found that the opinion of the Supreme Court of Wisconsin on petitioner Lindh’s appeal was carefully entered because the opinion correctly stated the holdings of precedential decisions from the Supreme Court of the United States and did not transgress any clearly established principles.
Id.
Thus, the Seventh Circuit found that the decision of the Supreme Court of Wisconsin was entitled to deference.
Id.
In this case, the court finds that the October 19, 1995, decision of the Supreme Court of Indiana cannot be considered a careful and well-reasoned opinion requiring deference under § 2254(d). As the respondent noted in his brief, the post-conviction process in Indiana “is not a substitute for a direct appeal, but is a process for raising issues not known at the time of the original trial or for some reason not available to the defendant at that time,” citing
Wallace v. State,
553 N.E.2d 456, 458 (Ind.1990),
cert. denied,
500 U.S. 948 , 111 S.Ct. 2250 , 114 L.Ed.2d 491 (1991). A review of the lengthy record in this case establishes that the PCR petition which was denied as successive by the Supreme Court of Indiana was in fact the first such petition challenging certain aspects of Burris’s second death sentence. It cannot be disputed that Burris has time and again challenged the sufficiency of the mitigating evidence presented on his behalf. However, in the PCR petition, Burris was for the first time attempting to challenge the effectiveness of his counsel in the second sentencing trial and subsequent appeal.
Further, it would have been impossible for Burris to raise his ineffective assistance of counsel claims on direct appeal of his second death sentence for two reasons. First, Burris’s sentencing counsel and appellate counsel were, in part, the same attorney. Second, Burris claims not only that his sentencing counsel were ineffective but also that counsel on appeal violated his Sixth Amendment rights by failing to present several grounds for review on direct appeal. Additionally, unlike the decision of the Supreme Court of Wisconsin in
Lindh ,
which clearly delineated the applicable law on the issues presented in Lindh’s appeal, the Supreme Court of Indiana did not even address Burris’s ineffective assistance claims for what they were: allegations that counsel violated his rights under the Sixth Amendment to the United States Constitution. Therefore, the court finds that the October 19, 1995, decision of the Supreme Court of Indiana is not entitled to deference under § 2254(d), and the court will review
de novo
Burris’s claims of ineffective assistance of counsel under the Sixth Amendment.
6
As for the remaining claims that were raised for the first time on direct appeal of the second death sentence, Burris argues that such claims simply involve pure questions of law which he contends are still reviewed
de novo,
citing
Lindh,
96 F.3d at 874-75 . On the other hand, the State argues that the remaining claims are clearly grounds that were “adjudicated , on the merits in State
*1322
court proceedings” within the meaning of § 2254(d), as amended. Thus, the State maintains that the remaining claims must be addressed under the narrower standards of the AEDPA.
This court does not read
Lindh
as holding that pure questions of law are reviewed
de novo
under § 2254(d), as amended. Although federal courts are allowed to express an independent opinion on all legal issues raised in a habeas petition,
see Lindh,
96 F.3d at 869 , that opinion is limited to the law “as determined by the Supreme Court of the United States.”
See
28 U.S.C. § 2254 (d)(1). Therefore, labeling the review of purely legal issues as
de novo
under the new § 2254(d) is a misnomer; for a petitioner now “must be able to point to an authoritative decision of the Supreme Court in order to secure a writ.”
Lindh,
96 F.3d at 869 . Accordingly, this court will review the remaining claims raised by the petitioner under the standards of § 2254(d), as amended;, that is, the court will independently determine whether the state court’s decision on the merits of such claims is “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States.”
TV. REQUEST FOR EVIDENTIARY HEARING AND EX PARTE MOTION FOR APPOINTMENT OF NEUROPSYCHOLOGIST
The court must first address Burris’s request for an evidentiary hearing and
ex parte
motion for the appointment of a neuropsyehologist pursuant to 21 U.S.C. § 848 (q)(9) and (10). The petitioner contends that since he is entitled to receive
de novo
review of his ineffective assistance of counsel claims, he should be allowed to further develop the facts underlying such claims. Thus, he seeks an evidentiary hearing on those claims in this court, to be held after a neuropsychologist is appointed to examine and test the petitioner to determine whether he suffers from brain dysfunction or other neurocognitive damage.
The State argues that the appointment of a neuropsychologist and the holding of an evidentiary hearing are unnecessary in this case. The respondent claims that such events would only serve to further delay the imposition of Burris’s ultimate sentence and, thus, are unnecessary to the resolution of the issues raised in this petition. The respondent argues that the appointment of investigative or expert assistance need not be made unless it is reasonably necessary for the representation of the petitioner.
See
21 U.S.C. § 848 (q)(9). In addition, under § 2254(e)(2) as amended by the AEDPA, the respondent contends that Burris is not entitled to an evidentiary hearing because he is unable to satisfy the statutory test. Even if the new statute is not applied, the State argues that an evidentiary hearing is unwarranted under pre-AEDPA standards.
A. EVIDENTIARY HEARING
The court will first address Burris’s request for an evidentiary hearing. Burris claims that he initially attempted to develop his facts concerning the ineffective assistance of counsel claims in the state courts. However, after filing his PCR petition on the second death sentence, the Supreme Court of Indiana summarily rejected the PCR petition, finding that it was a successive petition under Indiana Post-Conviction Rule 1 § 12.
See Burris v. State,
No. 49S00-9509-SD-1112, at 1-2 (Ind. Oct. 19, 1995). As a result, the petitioner alleges that the decision of the Supreme Court of Indiana made it impossible for him to adequately develop the factual basis of his ineffective assistance claims in the state courts. Therefore, under the principles of
Townsend v. Sain,
372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963), the petitioner argues that he has met the necessary requirements to warrant holding an evidentiary hearing in order to develop the factual basis for his ineffective assistance claims.
1. Pre-AEDPA Standards
To fully analyze whether an evidentiary hearing is mandated in this case, it is necessary to address the petitioner’s request under the applicable standards as they existed prior to the signing of the AEDPA on April 24, 1996, as well as the standards of § 2254(e)(2) as amended by the Act. In
Townsend v. Sain, supra,
the Supreme Court of the United States set forth with
*1323
particularity the standard a petitioner must fulfill to warrant the holding of an evidentiary hearing on a habeas corpus petition in federal court. The Court held:
[A] federal court
must
grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
Townsend,
372 U.S. at 313 , 83 S.Ct. at 757 (emphasis supplied).
Following
Townsend ,
the Supreme Court of the United States next addressed the issue of evidentiary hearings on habeas corpus petitions in
Keeney v. Tamayo-Reyes,
504 U.S. 1 , 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992). In
Keeney ,
the Supreme Court did not alter the
Townsend
standard with regard to when an evidentiary hearing is mandated — the Court merely changed the standard that a petitioner must satisfy when the petitioner, himself, caused the failure to adequately develop the facts in the state court.
Id.
at 6, 112 S.Ct. at 1717 - 18. In a case where the failure to adequately develop the factual background rests at the petitioner’s own doorstep, the Court in
Keeney
overruled
Townsend ,
holding that a “cause and prejudice” standard should be applied rather than the “knowing waiver” or “deliberate bypass” standards set forth in
Townsend. Id.
at 7-8, 112 S.Ct. at 1718 - 19. However, in a case where the failure to adequately develop the facts in state court cannot be blamed on the petitioner, the
Townsend
factors are still the pre-AEDPA standard.
Applying the
Townsend
factors to this case, it appears that the petitioner can satisfy his burden which would mandate this court to hold the requested evidentiary hearing. Burris alleges that he did not receive a full and fair hearing in the state courts, and that the failure to develop the ineffective assistance claims in state court was not a result of his own negligence. Thus, it appears that Burris attempts to meet the
Townsend
test by pleading compliance with factor (3) (that the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing) and factor (6) (that for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing).
At the state court level, ■ the Supreme Court of Indiana dismissed Burris’s attempt to challenge the effectiveness of his sentencing and appellate counsel on his second death sentence without allowing for discovery or holding an evidentiary hearing.
See Burris v. State,
No. 49S00-9509-SD-1112, at 1-2 (Ind. Oct. 19, 1995). The Supreme Court of Indiana held that Burris had already challenged the sufficiency of the mitigating evidence presented in his second sentencing trial on direct appeal and during post-conviction review of his underlying conviction; therefore, a hearing on his ineffective assistance claims was unnecessary.
Id.
The Seventh Circuit has held that upholding the failure of a state court to provide a petitioner with a full and fair hearing would reward that state court for its denial of due process.
See Bracy v. Gramley,
81 F.3d 684, 693 (7th Cir.),
petition for cert. filed
(Sept. 23, 1996).
7
In this case, the court finds that the courts of the State of Indiana failed to provide Burris with a full and fair hearing on his ineffective assistance claims. Thus, under the pre-AEDPA standards of
Townsend
and
Keeney ,
because the Supreme Court of Indiana dismissed Burris’s PCR petition as successive without allowing for discovery, holding an evidentiary hearing or addressing the merits of Burris’s ineffective assistance claims which were before the court in the first instance, it would appear that this court would be mandated to hold the requested evidentiary hearing.
*1324
2. Standards of Section 2254(e)(2) as amended by the AEDPA
With the passage of the AEDPA, the rules governing the holding of evidentiary hearings on habeas corpus petitions in the federal courts changed dramatically. Accordingly, this court must first address whether the petitioner’s request for an evidentiary hearing should be addressed under the new standards of § 2254(e)(2). Second, if the new standards are applicable, this court must determine whether the petitioner can satisfy the new standards.
The AEDPA amended § 2254 in pertinent part as follows:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings,, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. ,
28 U.S.C. § 2254 (e)(2).
The first question that must be answered is whether § 2254(e)(2), as amended, should apply to eases that were pending on the date the AEDPA was enacted. In
Lindh, supra,
the Seventh Circuit, in finding that § 2254(d) should be applied retroactively, implied that all of the amendments to § 2254 contained in § 104 of the AEDPA should apply to cases pending on the date of enactment.
Lindh,
96 F.3d at 867 . The court found that retroactive application of the AEDPA does not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.”
Id.
However, because the Seventh Circuit did not explicitly hold that § 2254(e)(2) should be applied to cases pending on April 24, 1996, this court must analyze that section under the decision of the Supreme Court of the United States in
Landgraf v. USI Film Products,
511 U.S. 244 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994).
8
In
Landgraf ,
the Supreme Court set forth the sequence of issues that must be addressed to determine whether a newly enacted statute should be applied to cases which were pending on the date of enactment. First, it must be determined whether Congress has decided to which eases a new law applies; “if it has, the only task is to follow the statute.”
Lindh,
96 F.3d at 861 . If Congress has not addressed that issue, then the court must apply the law in effect at the time of the decision — in this case § 2254(e)(2) as amended — unless “the new provision attaches new legal consequences to events completed before its enactment.”
Id.
(quoting
Landgraf
511 U.S. at 269 , 114 S.Ct. at 1499 ).
In
Landgraf ,
the Supreme Court specifically addressed the issue of applying procedural rules to cases pending when a new statute is enacted:
Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retro-activity. For example, in
Ex Parte Collett,
337 U.S. 55, 71 , 69 S.Ct. 944, 952-53 , 93 L.Ed. 1207 (1949), we held that 28 U.S.C. § 1404 (a) governed the transfer of an action instituted prior to that statute’s enactment. We noted the diminished reliance interests in matters of procedure.
Id.,
at 71 , 69 S.Ct., at 952-53 . Because rules of procedure regulate secondary rather than primary conduct, the fact that a new proce
*1325
dural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.
Cf. McBurney v. Carson,
99 U.S. 567, 569 , 25 L.Ed. 378 (1879).
511 U.S. at 275 , 114 S.Ct. at 1502 .
The issue of procedural rules is relevant to the discussion of § 2254(e)(2) because it is well settled that the decision whether or not to hold an evidentiary hearing is an issue that is procedural rather than substantive in nature.
See Pittman v. Warden, Pontiac Correctional Ctr.,
960 F.2d 688, 690 (7th Cir.) (finding that before beginning substantive analysis of petitioner’s habeas petition, it was necessary for court to address the denial of petitioner’s request for evidentiary hearing),
cert. denied,
506 U.S. 880 , 113 S.Ct. 229 , 121 L.Ed.2d 165 (1992);
see also, Mars Steel Corp. v. Continental Illinois Nat’l Bank and Trust Co. of Chicago,
834 F.2d 677, 683 (7th Cir.1987) (stating that issue of holding evidentiary hearing was included in a “variety of procedural rulings challenged”). Therefore, because the issue whether an evidentiary hearing should be held on.a habeas petition is procedural in nature, application of the new § 2254(e)(2) will not attach any new legal consequences to this petition; for the decision to hold an evidentiary hearing will not, by itself, affect any of this court’s legal conclusions with respect to the grounds for review presented in Burris’s second habeas petition. As a result, following the Seventh Circuit’s holding in
Lindh ,
because the procedural decision whether or not to hold an evidentiary hearing under § 2254(e)(2) does not attach new legal consequences to events completed before its enactment, the court must apply the amended standards of § 2254(e)(2) to Burris’s request for an evidentiary hearing rather than the pre-AEDPA
Townsend
standards.
With respect to his request for an evidentiary hearing under § 2254(e)(2), the petitioner argues that the new standards of § 2254(e)(2) are merely a codification of the decision of the Supreme Court of the United States in
Keeney v. Tamayo-Reyes,
supra—that an evidentiary hearing shall not be granted if the petitioner fails to develop the facts of his claim in the state court and fails to show cause and prejudice to excuse such failure. 504 U.S. at 8-11 , 112 S.Ct. at 1719-21 . In support of this contention, the petitioner cites to four unpublished United States District Court opinions.
See Silva v. Calderon,
No. CV 90-3311 DT (C.D.Cal. June 26, 1996);
Douglas v. Calderon,
No. CV 91-3055 RSWL (C.D.Cal. June 11, 1996);
Bean v. Calderon,
No. CIV S-90-0648 WBS/GGH (E.D.Cal. May 15, 1996);
Wilkins v. Bowersox,
933 F.Supp. 1496 (W.D.Mo.1996). Burris contends that since his own negligence was not the cause for the failure to develop the facts underlying his ineffective assistance claims in the state courts, the holding of
Keeney
does not apply and, consequently, § 2254(e)(2) should not control in this ease.
After careful review of this argument, the court finds that it cannot agree with the petitioner’s reading that § 2254(e)(2) is merely a codification of the Supreme Court’s holding in
Keeney .
To identify the proper scope of § 2254(e)(2), it is necessary to analyze the wording of the statute itself. The section begins by stating, “[i]f the applicant has
failed to develop
the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless----” 28 U.S.C. § 2254 (e)(2) (emphasis supplied). The court notes that this phrase can best be described as vague and unclear. However, the key to this section is how the phrase “the applicant has failed to develop” should be interpreted by this court.
The petitioner contends that the phrase “the applicant has failed to develop” is a merely a codification of
Keeney
— i.e., that the section applies
only
if the failure to develop facts in the state court was the
petitioner’s fault.
However, this court reads the opening phrase of § 2254(e)(2) in accord with Magistrate Judge Hollows of the Eastern District of California, who stated “the ‘fail to develop’ language applies to
the non-development of any claim in state proceedings
regardless of the fault of the petitioner in not developing the claim which is then in turn subject to two stated exceptions.”
Bean v. Calderon,
No. CIV S-90-0648 WBS/GGH, at 8 (E.D.Cal. May 15, 1996) (emphasis supplied).
*1326
A review of § 2254(e)(2)(A) establishes that Congress intended to except from the mandate against holding an evidentiary hearing two scenarios: (i) where the claim is based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; and (ii) where the petitioner could not have previously discovered the factual predicate of the claim through the exercise of due diligence. The latter scenario, thus, allows a petitioner to comply with § 2254(e)(2)(A) if the failure to develop the facts in the state courts was not due to
the petitioner’s own negligence.
Accordingly, it would be incongruous to require a petitioner to demonstrate that the facts sought to be introduced at an evidentiary hearing could not have been obtained previously through the exercise of his own due diligence
if
the section applied only to those scenarios where the facts were not developed in the state court due to the petitioner’s own negligence. As a result, the opening phrase must be read to include
any
non-development of the facts in the state court, for any other reading would make the second prong of § 2254(e)(2)(A) mere surplusage. Accordingly, the court finds that § 2254(e)(2) applies to the petitioner’s request for an evidentiary hearing in this case.
3. Application of Section 2254(e)(2)
Following the plain meaning of the statute, this court is not to hold an evidentiary hearing unless Burris can meet the two-prong test of subsections (A) and (B). First, Burris must establish that the failure to develop facts in the state court was based upon either (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court of the United States, that was previously unavailable, or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence. In this case, it is clear that Burris can satisfy the second prong. As discussed above, Burris was not provided an opportunity to develop his ineffective assistance claims in the state court because the Supreme Court of Indiana “lumped” said claims together with his previous challenges to the sufficiency of the mitigation evidence presented. Therefore, the .court finds that Burris was diligent in his attempt to develop the facts underlying his ineffective assistance claims in the state courts, however, he was denied such an opportunity by the Supreme Court of Indiana.
Aside from showing cause for the failure to develop facts in the state court, Burris must also show “that the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). A strict read of this subsection automatically precludes Burris from receiving an evidentiary hearing because Burris’s guilt has already been conclusively determined in the state courts and through his first federal habeas petition. Thus, it would be impossible for Burris to establish that no reasonable factfinder would have found him guilty of the underlying offense; for it is undisputed that Burris is guilty of the underlying felony murder. Nevertheless, under the unusual circumstances of this ease, it would be inequitable to apply a strict interpretation of this statute. Accordingly, it is this court’s opinion that Burris must instead prove that the facts underlying his claims would be sufficient to establish by clear and convincing evidence that but for constitutional error— here, a Sixth Amendment violation — no reasonable factfinder would have
recommended the death penalty
for Burris in this case.
This court has before it the entire record of Burris’s second sentencing trial — a record which consists of 2,440 pages of transcript in ten (10) separate volumes. In addition, the court has reviewed the exhibits filed by the petitioner, specifically the affidavits of several psychologists and one of the attorneys whose very effectiveness is challenged in this petition — R. Mark Inman — in which Inman explains the reasoning behind counsel’s actions both in the sentencing trial and on appeal.
The Seventh Circuit has held that with regard to evidentiary hearings on habeas petitions, in-person testimony is unnecessary where the court has before it the affidavits of
*1327
probable witnesses because the affidavits represent the most favorable version of a petitioner’s arguments.
See Kavanagh v. Berge,
73 F.3d 733, 737 (7th Cir.1996). For these reasons, and the reasons set forth in Section V below, the court finds that Burris cannot establish that the facts underlying his ineffective assistance claims would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have recommended the death penalty. As a result, the court now denies Burris’s request for an evidentiary hearing.
B. MOTION FOR APPOINTMENT OF NEUROPSYCHOLOGIST
The petitioner also has requested that the court appoint a neuropsychologist, pursuant to 21 U.S.C. § 848 (q)(9), to examine Bums in order to folly develop the factual background of his ineffective assistance claims. Section 848(q)(9) states in relevant part:
Upon a finding that investigative, expert, or other services are
reasonably necessary for the representation of the defendant,
whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefore, under paragraph (10).
21 U.S.C. § 848 (q)(9) (emphasis supplied).
The petitioner argues that the appointment of a neuropsychologist to examine and test him is necessary to determine whether he suffers from brain dysfunction or other neuroeognitive defects. The court interprets Burris’s ineffective assistance claims as alleging that counsel was ineffective because they failed to adequately investigate whether Burris
suffered
from brain dysfunction and to introduce evidence of brain dysfunction at the second sentencing trial. With regard to the allegation that counsel failed to introduce evidence, it does not appear that an expert is reasonably necessary since the evidence must have already been in existence at the time of trial.
As for the claim that counsel faded to properly investigate the evidence, the question is not so much whether Burris actually suffers from brain dysfunction as it is whether counsel failed to properly investigate whether such evidence existed at the time of trial. Further, as stated above, this court found that Burris is not entitled to an evidentiary hearing on his ineffective assistance claims. In addition, the United States Court of Appeals for the Fourth Circuit has held that there is no need to appoint' an expert under § 848(q)(9) if the petitioner’s petition does not raise claims which entitle him to an evidentiary hearing at which the expert could present evidence on the petitioner’s condition.
Lawson v. Dixon,
3 F.3d 743, 752 (4th Cir.1993),
cert. denied,
510 U.S. 1171 , 114 S.Ct. 1208 , 127 L.Ed.2d 556 (1994).
9
Therefore, the court finds that there is no “reasonable necessity” for the appointment of a neuropsychologist in this ease. Consequently, the court will now address the merits of the claims raised in Burris’s petition.
V. INEFFECTIVE ASSISTANCE OF SENTENCING COUNSEL
The grounds for review raised by Burris in this petition can be broken down into two groups: (1) those issues raised for the first time in his PCR petition; and (2) those issues raised on direct appeal of his second death sentence. The court will first address the issues raised initially in Burris’s PCR petition. Burris first claims that his sentencing counsel — attorneys R. Mark Inman and Michael R. Fisher — failed to adequately investigate and introduce available mitigation evidence which counsel allegedly possessed at the time of the second sentencing trial, violating his rights under the Sixth Amendment to the United States Constitution.
Specifically, Burris alleges that his sentencing counsel were ineffective because they failed to fully investigate and adequately present the following evidence which the petitioner alleges would have established that
*1328
he suffers for brain dysfunction or other neuroeognitive defect: (1) that Burris had been shot in the head in 1976; (2) that Burris suffered from severe migraine headaches, blackout spells, tinnitus, blurred vision and other visual disturbances; (3) that Burris’s medical records indicated that he was given an EEG test prior to the sentencing trial, but that the results of said test had not yet been received by counsel; (4) that Burris was seen on September 7, 1977, for a neurological evaluation at Lake Shore Hospital while incarcerated at the Indiana State Prison; (5) that Burris was prescribed medication for his migraine headaches, which included such drugs as Sinequan, Haldol, Cogentin, Sansert, Cafergot and Percogesie; and (6) that Burris’s medical records indicate that he was examined at Wishard Memorial Hospital in Indianapolis, Indiana. In addition, Burris claims that his sentencing counsel failed to introduce evidence that he was sexually abused as a child in support of his mitigation case.
The petitioner further contends that attorneys Inman and Fisher should have known about the evidence of brain dysfunction in light of the fact that they possessed Burris’s medical records which contained the information at the time of the second sentencing trial. In support of this contention, Burris submits the sworn affidavit of his attorney Mark Inman, in which Inman admits that counsel possessed no strategy reason for not investigating and introducing evidence of brain dysfunction and sexual abuse during the second sentencing trial. Based upon such an alleged failure, Burris argues that his sentencing counsel were constitutionally ineffective under the Sixth Amendment.
The State argues that the allegation that counsel failed to properly investigate and introduce certain mitigation evidence fails for three reasons. First, the State contends that the theory of brain dysfunction was inconsistent with the mitigation evidence that counsel discovered and actually presented to the jury; thus, to suggest a brain disorder would have undermined the credibility of Burris’s own witnesses. Second, the affidavits and records that Burris offers fall short of establishing that further investigation by counsel would have uncovered that Burris actually suffers from organic brain dysfunction. Third, the State claims that the facts underlying the allegation of sexual abuse are- at best speculative since they are only supported by Burris’s own self-serving affidavit. Thus, even under
de novo
review, the State argues that counsel’s performances during the second sentencing trial were not constitutionally deficient.
A. STANDARDS OF REVIEW UNDER THE SIXTH AMENDMENT
The Sixth Amendment guarantees to criminal defendants the right to assistance of counsel.
Gideon v. Wainwright,
372 U.S. 335, 339-40 , 83 S.Ct. 792, 793-94 , 9 L.Ed.2d 799 (1963). The Supreme Court of the United States has recognized that “the right to counsel is the right to the
effective
assistance of counsel.”
McMann v. Richardson,
397 U.S. 759, 771 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970) (emphasis supplied). However, as the Supreme Court explained in
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), whether counsel is effective or ineffective does not turn on a petitioner’s subjective pleasure or displeasure with counsel’s performance. The Court held that there are two essential elements to a successful claim of ineffective assistance of counsel under the Sixth Amendment:
First, the [petitioner] must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.
Second, the [petitioner] must show that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to deprive [petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner] makes
both
showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland,
466 U.S. at 687 , 104 S.Ct. at 2064 (emphasis supplied).
A petitioner is also entitled to the effective assistance of counsel at sentencing.
*1329
Id.
at 690-91 , 104 S.Ct. at 2065-67 . Thus, counsel “must make a ‘significant effort, based on reasonable investigation and logical argument,’ to mitigate his client’s punishment.”
Stewart v. Gramley,
74 F.3d 132, 135 (7th Cir.) (citing
Kubat v. Thieret,
867 F.2d 351, 369 (7th Cir.1989),
cert. denied,
493 U.S. 874 , 110 S.Ct. 206 , 107 L.Ed.2d 159 (1989)),
cert. denied,
— U.S.-, 117 S.Ct. 113 , 136 L.Ed.2d 65 (1996). Further, a claim of ineffective assistance of counsel at sentencing is reviewed under the same cause and prejudice standard as an ineffective assistance claim challenging representation in the guilt phase of a trial.
Strickland,
466 U.S. at 690-91 , 104 S.Ct. at 2065-67 ;
Gramley,
74 F.3d at 135 .
With regard to establishing cause, this court must apply the highly deferential standard of
Strickland
and must determine whether counsel’s decisions, viewed from counsel’s perspective at the time, might be considered sound trial strategy.
Kubat,
867 F.2d at 359 . “Even the best lawyer slips up from time to time ... On the spot, with limited time to explore options, counsel must do the best they can. Only ‘errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amendment’ ” can establish deficient performance.
Burris v. Farley,
51 F.3d 655, 661 (7th Cir.1995). In the sentencing context, “prejudice may exist when there is a reasonable probability that, absent the errors, the [sentencing authority] would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Jones v. Page,
76 F.3d 831, 846 (7th Cir.),
cert. denied,
— U.S.-, 117 S.Ct. 363 , 136 L.Ed.2d 254 (1996).
B. COUNSEL’S PERFORMANCES
With these standards in mind, the court must first determine whether counsel’s performances were objectively deficient under
Strickland
and its progeny. As a preliminary matter, the court must note that the State of Indiana has adopted standards for the appointment of qualified counsel in capital cases. Rule 24 of the Indiana Rules of Criminal Procedure sets forth the qualifications counsel must possess in order to become appointed counsel in a capital case.
10
It is undisputed in this case that all counsel who represented Burris during the second sentencing trial and on direct appeal of the second death sentence qualified for appointment under Indiana Criminal Rule 24. Therefore, it is proper to conclude that Burris’s counsel as a whole had substantial experience in capital cases and with the requirements of presenting mitigation evidence on the petitioner’s behalf.
Burris alleges that his sentencing counsel failed to adequately investigate and introduce certain mitigation evidence on his alleged suffering from brain dysfunction and his
*1330
childhood sexual abuse. However, it is important to note that this is not a case where counsel failed to present
any
evidence of mitigation.
See Emerson v. Gramley,
91 F.3d 898 (7th Cir.1996). It is undisputed that Burris’s counsel indeed presented substantial mitigation evidence on Burris’s behalf in the second sentencing trial. Burris’s sentencing counsel presented the following mitigation case: (1) that Burris led a depraved childhood; (2) that he was used as a “gofer” in a house of prostitution during his pre-teen years; (3) that he was troubled because he did not know his true parentage or even his true age; (4) that he had been raised in a neighborhood with no programs for youth; and (5) that he had a very good record of behavior in prison since his incarceration. The presentation of such evidence even proved successful in part — the jury which heard the evidence was unable to make a unanimous recommendation on whether Burris deserved the death penalty for his crimes. *
Burris now attempts to question his sentencing counsel’s strategy by asserting that additional mitigation evidence should have been investigated and introduced. In support of this argument, the petitioner has submitted the affidavits of attorney Inman and psychologists Richard Loughead, Ph.D., and Michael Gelbort, Ph.D., to suggest that he
may
suffer from a neurocognitive defect, as well as Burris’s own affidavit in support of the claim that he was sexually abused as a child.
In his sworn affidavit, Mr. Inman states that counsel did not have a strategy reason for failing to introduce the mitigation evidence at issue, even though he and his co-counsel Michael Fisher possessed such information at the time of trial. Further, Inman asserts that counsel did not investigate or request certain of Burris’s medical records from Wishard Memorial Hospital; did not request the results of Burris’s EEG; did not speak to the physicians who examined Burris concerning any diagnosis; and did not investigate any other facts relating to Burris’s medical records. Inman also admits that counsel did not give the above-referenced medical records to Dr. Loughead, the psychologist who testified on behalf of Burris in the second sentencing trial, and that counsel did not give the records to or consult with any other expert concerning the applicability of said records. With respect to the childhood sexual abuse evidence, Inman states that counsel did not ask Burris about any of his hospitalizations during his childhood, and that counsel did not know that Burris was treated for a sexually transmitted disease when he was only ten years of age.
Dr. Richard Loughead states under oath that prior to giving his testimony in the second sentencing trial, he requested to review any medical records that Burris’s sentencing counsel possessed. However, he states that he was informed by attorney Fisher that counsel did not have any of Burris’s medical records. Further, Dr. Loughead states that if he had possessed the information contained in the medical records, he would have had justification for subjecting Burris to further testing to assess any brain damage or dysfunction, and would have referred Burris for neuropsychological testing. Moreover, he asserts that knowledge of such evidence would have altered the testimony he presented in the second sentencing trial.
Dr. Michael Gelbort states under oath that he is a clinical psychologist with advanced training in neuropsychology. Dr. Gelbort asserts that he believes, in light of the evidence, that since Burris suffered from migraine headaches; that Burris had been shot in the head; and that Burris suffered from various visual disturbances; the possibility exists that Burris suffers from brain dysfunction or damage and neurocognitive defects.
The petitioner, himself, states under oath that as a young child he lived in a household with prostitutes. Burris also states that he was sexually abused by some of the prostitutes with whom he lived. Additionally, he alleges that he was diagnosed as having a sexually transmitted disease when he was only ten years old.
The petitioner contends that counsel’s failure to adequately research and present such evidence of possible brain dysfunction and childhood sexual abuse amounts to a violation of the Sixth Amendment to the United States Constitution. However, in this
*1331
court’s view, notwithstanding attorney In-man’s assertion that counsel did not have a strategy reason for their decision not to present the brain dysfunction and sexual abuse evidence, the performances of Burris’s counsel were not constitutionally deficient in the second sentencing trial.
First, the court finds that the theory of brain dysfunction is inconsistent with the mitigation evidence counsel actually discovered and presented to the state trial court and the jury. During the second sentencing trial, the defense called several witnesses in an attempt to humanize Burris and show how well he had adjusted to prison life. One such witness was Teresa Harper, one of Burris’s previous attorneys. During her direct examination, she testified that “Gary [Burris] has always been a pretty bright individual and I’ve seen him, I think, mature and become even more mature and stable in his prison adjustment.” Tr.-II at 2084.
11
In response to a question asking her to describe Burris as a human being, Harper answered, “He’s bright and he’s sensitive. We can talk about everything from the civil rights movement in 1965 and Thurgood Marshall to Star Trek.” Tr.-II at 2085.
Another witness called by the defense was Terry Dunlap. Mr. Dunlap is a correctional sergeant at the Indiana State Prison who was assigned to guard the inmates on death row at the prison. During his testimony on direct examination, he described Burris as follows:
[Burris] did a lot of reading, a lot of studying. He did a lot of helping with some of the other fellows. A lot of them depended on him to help them through. Well, keep in mind, we had a lot of undereducated guys and Gary did have that nack [sic] of taking up with them and trying to help them out.
Tr.-II at 2119. On cross-examination, Dunlap testified in part as follows:
Q. Did Gary Burris seem like a bright individual to you on the unit?
A. Yes, he did.
Q. And he paid a lot of attention then to legal issues, is that correct?
A Yes.
Tr.-II at 2122.
Sentencing counsel also called Bernard Nathaniel Johnson, a correctional officer as well as a case manager for the segregation units at the Indiana State Prison, as a witness in their attempt to portray Burris as an intelligent and well-adjusted prisoner. On direct examination, Johnson was asked the following questions:
Q. Do you feel Gary is very responsible?
A. Yes.
Q. Do you view Gary as someone who other inmates listen to?
A. Yeah. I think he had his — I think he was in a power position.
Q. What do you mean by a power position?
A. Well, I think he was the type of person that the other guys looked up to him. Do you know what I’m saying? That you know, we had what they call followers and leaders. I think [Burris] was a leader.
Tr.-II at 2133. Later on direct examination, Johnson testified: “[Burris] was one of the most well versed, what we call jail house lawyers, in that unit. When guys had a ease to be worked on they would want to see him about helping them out.” Tr.-II at 2135.
The testimony of Ms. Harper, Officer Dunlap and Officer Johnson provided substantial evidence that Burris was regarded by those who knew him as intelligent, a leader on death row, and one of the most well-versed “jail house lawyers” in the unit. Such evidence can be highlighted by Burris’s actual performance as a “jail house lawyer.” The court takes judicial notice of one of several civil rights suits filed by Burris in this court in the 1980’s.
In
Burris v. Kirkpatrick,
Burris, acting
pro se,
brought an action under 42 U.S.C. § 1983 against a prison guard alleging an Eighth Amendment violation for injuries sustained when the guard threw hot water into
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Burris’s cell. See
Burris v. Kirkpatrick,
573 F.Supp. 1084 (N.D.Ind.1983), and
Burris v. Kirkpatrick,
649 F.Supp. 740 (N.D.Ind.1986). After proceeding to a bench trial before this court, judgment was entered in Burris’s favor in the sum of one hundred dollars ($100.00). While this court claims no expertise in the area of neuropsychology, it is the court’s reasoned opinion that in light of Burris’s performance in that action, the briefs filed by the petitioner and the petitioner’s demeanor in court, Burris does not appear to be someone who suffers from brain dysfunction or damage.
12
After reviewing the totality of the state court record in this case, the court hereby finds that the testimony of Ms. Harper, and Officers Dunlap and Johnson would have been directly undermined by the proposed introduction of evidence alleging that Burris suffers from brain dysfunction or damage. Thus, based upon the foregoing evidence, this court cannot find that counsel’s decision not to investigate and introduce evidence of brain dysfunction was unreasonable under
Strickland .
Second, the court finds that the theory of brain dysfunction is inconsistent with the facts of the crime itself. Taking the facts as found by the courts of the State of Indiana as true,
see
28 U.S.C. § 2254 (e)(1), a summary of the facts underlying Burris’s crimes is in order. In January 1980, Burris was in need of money to pay his bills. In order to get the money he needed, Burris and his companions, with Burris as the leader and mastermind, decided to call a cab, rob the driver and, no matter who the driver was, kill him. Thus, on January 29, 1980, Burris had a barmaid at the M & J Social Club call the cab company and request a taxi. When the taxi arrived, Burris and his companions entered the cab. After directing the driver where to go, Burris and his friends announced their intentions. They directed the driver to stop near an alley, required him to remove all of his clothing, took him into the alley, made him lie face down on the ground, and tied his hands behind him. Burris then placed the barrel of his pistol flush against the victim’s head and shot him. The taxi itself was left near the scene, and Burris later flushed the driver’s run sheet down his toilet in an effort to eliminate evidence. The pistol was subsequently found hidden in a stereo speaker in the apartment of Burris’s friend. Burris later stated that he executed the driver, according to his plan, in order to eliminate any witnesses to the crime and to avoid a return trip to prison.
Burris murdered Kenneth Chambers according to a cold-blooded, calculated plan. It is this court’s view that someone who suffers from a brain dysfunction would not be. able to plan such a heinous crime, much less carry it out in such a calculated fashion, eliminating and hiding evidence after the fact. Thus, based upon the fact that the proposed evidence of brain dysfunction contradicts the very facts of the crime itself, and because such evidence would serve only to undermine much of the mitigation evidence actually offered by counsel, this court cannot find that counsel’s performance, when viewed in its totality, was constitutionally deficient.
Third, the court finds that counsel’s failure to investigate and introduce evidence that Burris was sexually abused as a child does not constitute ineffective assistance under the Sixth Amendment. In the second sentencing trial, counsel called several witnesses who testified that Burris grew up in the most unkind of environments. Ms. Jomarba Bell testified that the location where Burris grew up, the M & J Social Club, was known as a notorious house of prostitution and drug activity. Tr.-II at 2110-2114. Ms. Gwendolyn Reynolds, who worked as a cook at the M & J Social Club when Burris was a child, testified that Burris actively participated in the prostitution enterprises and drug trafficking that occurred while he lived at the M & J Social Club. Tr.-II at 2030-2039. Ms. Delma Edmondson testified that Burris was frequently in trouble with the police during
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his childhood and that he did not even know who his parents were or when he was bom. Tr.-II at 2053-2062. Ms. Edmondson further testified to rumors that Burris had been found in a trash can when he was a baby. Tr.-II at 2056. Even Dr. Longhead, when asked to characterize Burris’s childhood, testified that “it was marked by physical violence ... physical, emotional abuse of the most severe kind.” Tr.-II at 2170.
Based upon the presentation of such evidence, it is this court’s view that the presentation of Burris’s alleged sexual abuse and sexually transmitted disease would have been cumulative to the testimony of the witnesses actually called by his sentencing counsel. Further, Mr. Inman admits in his sworn statement that he did not even have knowledge of such evidence at the time of the second sentencing trial. It is this court’s opinion that if such evidence was so critical, Burris would have informed his counsel of its existence before trial. Therefore, the court finds that counsel’s performances cannot be found to be deficient because specific evidence of Burris’s alleged childhood sexual abuse was not presented at trial.
The court acknowledges Mr. Inman’s sworn statement in which he asserts that counsel did not have a strategic reason for not investigating and introducing the evidence of possible brain dysfunction and sexual abuse. However, “when the only record on which a claim of ineffective assistance is based is the trial record, every indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight.”
United States v. Penass,
997 F.2d 1227, 1229 (7th Cir.) (quoting
United States v. Taglia,
922 F.2d 413, 417-18 (7th Cir.),
cert. denied,
500 U.S. 927 , 111 S.Ct. 2040 , 114 L.Ed.2d 125 (1991)),
cert. denied,
510 U.S. 971 , 114 S.Ct. 458 , 126 L.Ed.2d 390 (1993). A defense attorney in a criminal trial is often called upon to make many difficult choices among a number of legitimate options, and the
Strickland
test is “highly deferential” to the decisions of trial attorneys.
Swofford v. Detella,
101 F.3d 1218, 1221-22 (7th Cir.1996).
In this case, it appears that counsel chose the avenue of attempting to humanize Burris by highlighting his intelligence and adjustment to prison life rather than painting Burris as a dysfunctional human being — a decision that met with reasonable success. Further, counsel presented ample evidence to support their claim that Burris grew up in a deprived and violent environment.
The Supreme Court of the United States recognized in
Strickland
that “it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission was unreasonable.” 466 U.S. at 689 , 104 S.Ct. at 2065 . Only if the act or omission is outside the wide range of professionally competent assistance will it be deemed unreasonable.
Id.
at 690 , 104 S.Ct. at 2065-66 . Upon review of the totality of counsel’s performances in the second sentencing trial, this court finds that counsel’s decision not to investigate and present evidence that Burris allegedly suffers from brain dysfunction or damage and neurocognitive defects, or that he was sexually abused as a child, was not unreasonable or outside the wide-range of acceptable professional decision-making. Therefore, the court holds that the petitioner cannot meet his burden under the first prong of the
Strickland
test.
C. PREJUDICIAL EFFECT
Assuming for the sake of argument that counsel’s performances could be deemed constitutionally deficient, the court also finds that counsel’s performances were not prejudicial. In order to establish prejudice, Burris must not only show that there is a reasonable probability that, absent the errors, the second jury would have unanimously concluded that the balance of aggravating and mitigating circumstances did not warrant a recommendation of the death penalty, but also that Judge Gifford would have in fact found such a unanimous recommendation to be reasonable and, thus, would not have imposed a death sentence.
See Jones v. Page,
76 F.3d at 846 . As outlined above, Burris’s sentencing counsel did present substantial mitigation evidence which in fact convinced at least one juror to find that a death sentence should not be recommended.
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The Seventh Circuit recently held in
Eddmonds v. Peters,
93 F.3d 1307 (7th Cir.1996), that “[t]he purpose of mitigation is, to reveal something that ‘goes to show that [the petitioner] is not as “bad” a person as one might have thought from the evidence in the guilt phase of the proceeding.’ ” 93 F.3d at 1321 (quoting
Stewart v. Gramley,
74 F.3d at 136 ). In this case, Burris’s sentencing counsel made the conscious decision to attempt to humanize Burris through evidence of his deprived childhood and successful adaptation to prison life. Through the testimony of witnesses Harper, Dunlap and Johnson, sentencing counsel established that Burris was a bright, intelligent individual who was well-versed in the law and a leader on death row. It is this court’s view that the presentation of evidence that Burris suffers from brain dysfunction or that he was sexually abused as a child would not have made a difference in the sentence he ultimately received.
First, the court agrees with the respondent’s assertion that the affidavits and records offered by Burris fall short of establishing that further investigation by counsel
would
have revealed that Burris actually suffers from a neuroeognitive disorder. The affidavit of Dr. Gelbort does not allege that he has ever examined Burris, much less that he and Burris have even met. Thus, any suggestion that Burris’s gunshot wound and physical symptoms display effects resembling brain dysfunction are only a
possibility
— and a possibility of neuroeognitive disorder is not enough to establish prejudice in this case.
Dr. Loughead states in his affidavit that after reviewing Burris’s medical records, he would have had justification for subjecting Burris to further testing to assess brain damage or dysfunction. However, a review of the state court record also shows that as early as 1981, Burris was examined by two different psychiatrists, Dr. Ronald H. Hull and Dr. Dwight W. Schuster. Both Dr. Hull and Dr. Schuster described Burris’s gunshot wound as “superficial” and found “no indications of mental illness or deficiency in [Burris’s] history or these examinations.” Tr.-I at 244. Further, the presentence report from Burris’s first trial also acknowledged Burris’s gunshot wound, but found that Burris reported no problems other than his migraine headaches. Tr.-I at 237. Thus, it is this court’s view that Dr. Loughead’s opinions are countered by substantial evidence that Burris did not suffer from any neurocognitive effects and that the presentation of such opinions would not have served to change the jury’s decision to a unanimous recommendation against the death penalty or Judge Gifford’s decision to impose death as Burris’s ultimate sentence. As a result, the court holds that the failure to further test Burris for neuroeognitive defects did not prejudice his sentencing in this case.
Second, the court finds that any evidence of brain dysfunction would only serve to undermine the substantial mitigation evidence presented by counsel in the second sentencing trial. The court again acknowledges Mr. Inman’s sworn statement that counsel did not have a strategic reason for not investigating and introducing evidence ■ of brain dysfunction or childhood sexual abuse. However, it cannot be disputed that the introduction of the brain dysfunction evidence would have contradicted much of the testimony of witnesses Harper, Dunlap and Johnson that counsel had already presented. Thus, because the mitigation evidence that was partially successful would have been contradicted by any evidence of brain dysfunction, it is this court’s view that the balance between mitigating and aggravating evidence would not have shifted if sentencing counsel would have offered the evidence of alleged brain dysfunction. In actuality, the balance could have even shifted further toward the alleged aggravating circumstance because the mitigation evidence was self-contradictory. Therefore, counsel’s decision not to investigate and introduce evidence of brain dysfunction did not prejudice the petitioner in his second sentencing trial.
As for the claim that counsel should have introduced evidence that Burris was sexually abused as a child, the court finds that such additional evidence clearly would not have affected Burris’s ultimate sentence. Sentencing counsel presented several witnesses, including Dr. Loughead, who testified to the deprived and violent environment that Burris faced as a child. The court is uncon
*1335
vineed that any additional evidence of sexual abuse, specifically that Burris was treated for a sexually transmitted disease at the age of ten or that he was sexually abused by the prostitutes with whom he lived, would tip the balance in favor of a unanimous recommendation by the second sentencing jury and a final determination against the death penalty by the state trial court. Therefore, the court finds that counsel’s decision not to investigate and introduce specific evidence of childhood sexual abuse did not prejudice Burris during sentencing. As a result, this court holds that the overall performance of attorneys Inman and Fisher did not prejudice Burris in his second sentencing trial.
For the foregoing reasons, the court now holds that Burris cannot establish that his sentencing counsel were constitutionally ineffective when they decided not to introduce evidence of the petitioner’s alleged brain dysfunction or childhood sexual abuse. Further, Burris cannot prove that counsel’s performances, if deficient, prejudiced his defense. Therefore, the court must dismiss the petitioner’s claim that sentencing counsel were ineffective when they decided not to investigate and introduce evidence of brain dysfunction or that the petitioner was sexually abused as a child.
VI. INEFFECTIVE ASSISTANCE OF SENTENCING AND APPELLATE COUNSEL
Burris also challenges the effectiveness of his sentencing and appellate counsel by raising six individual instances in which he contends that his sentencing counsel failed to object to and preserve for appeal certain court decisions and evidence during the sentencing trial, and that appellate counsel failed to present on direct appeal certain grounds for review. Burris first claims that counsel failed to object to, preserve for and present on appeal the ground that the prosecutor’s reading of an excerpt from the decision of the Supreme Court of the United States in
Skipper v. South Carolina,
476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986) — in which the prosecutor misidentified aspects of the decision — violated his right to a fair trial. Second, he contends that counsel failed to object to, preserve for and present on appeal the fact that the prosecutor introduced into evidence a photograph of the victim in his United States Navy uniform. Third, he alleges that counsel failed to object to, preserve for and present on appeal the ground that the prosecutor brought out evidence that Emmet Merriweather, an accomplice to the felony murder of Kenneth Chambers, was out on parole for his role in the crimes.
Fourth, Burris argues that counsel failed to object during the second sentencing trial to the state trial court’s decision, not to allow sentencing counsel to present mitigation evidence that Burris blamed himself for the death of the woman who had given him primary care during his pre-teen years. Fifth, he claims that counsel failed to preserve for and present on appeal the claim that the state trial court violated Burris’s Eighth and Fourteenth Amendment rights in sentencing him to death without considering and weighing as a mitigating circumstance the jury’s inability to reach, a sentencing recommendation. Sixth, he contends that counsel failed to preserve for and present on appeal the issue whether he was denied his rights under the Equal Protection Clause of the Fourteenth Amendment when the state trial court did not allow the jury to have any role in sentencing after the jury was unable to agree unanimously on a sentencing recommendation.
Additionally, Burris argues that but for the cumulative effect of his sentencing and appellate counsel’s errors, the jury would have returned a unanimous recommendation that he not be sentenced to death and that the state court judge, thus, would not have imposed a death sentence. On the other hand, the State argues that the performances of Burris’s sentencing and appellate counsel were not deficient under the Sixth Amendment.
Initially, this court must determine whether Burris has sufficiently identified the specific acts or omissions of his counsel which demonstrate that his attorneys’ performances fell below an objective standard of reasonableness.
United States v. Penass,
997 F.2d at 1229 . Once such a determination is made, this court must review such ineffec
*1336
tive assistance claims under the two-prong test set forth by the Supreme Court of the United States in
Strickland v. Washington, supra.
To establish ineffective assistance during the sentencing proceedings, Burris must demonstrate not only that counsel’s performances were deficient,
Strickland,
466 U.S. at 689 , 104 S.Ct. at 2065 , but also that counsel’s performances were prejudicial.
Id.
at 695 , 104 S.Ct. at 2068-69 .
When claims of ineffective assistance of counsel are also based on the failure to raise viable issues on appeal, the court must examine the state court record to determine whether appellate counsel failed to present significant and obvious issues on appeal.
Mason v. Hanks,
97 F.3d 887, 893 (7th Cir.1996) (citing
Gray v. Greer,
800 F.2d 644, 646 (7th Cir.1986)). Significant issues that could have been raised should then be compared to those issues actually raised on appeal; “generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.”
Id.
Put another way, the Seventh Circuit has held that when appellate counsel omits a claim that is a “dead-bang winner,” ineffective assistance of1 counsel should result.
Bond v. United States,
1 F.3d 631, 635 (7th Cir.1993).
Because the petitioner has identified the errors and omissions he contends demonstrate that his attorneys’ performances fell below an objective standard of reasonableness, it is incumbent upon the court to determine whether counsel’s performances were in faet deficient and, if they were, whether such performances actually prejudiced the petitioner by affecting the determination of his ultimate sentence. Since the performances of sentencing and appellate counsel oh said claims are intertwined, the court will address the propriety of their performances together.
A. PROSECUTOR’S STATEMENT DURING CLOSING ARGUMENTS
The first error alleged involves the failure of Burris’s sentencing counsel to object to during trial, and the failure of appellate counsel to present on appeal, the issue that the prosecutor’s misreading of an excerpt from the decision of the Supreme Court of the United States in
Skipper v. South Carolina, supra,
violated Burris’s right to a fair trial under the Fourteenth Amendment to the United States Constitution. During the rebuttal portion of the prosecutor’s closing argument, the prosecutor, Barbara Trathen, questioned the mitigation evidence presented by sentencing counsel relating to Burris’s successful adjustment to prison life. Ms. Trathen described the decision in
Skipper
as the case authority that allowed the petitioner to present evidence that he had become well-adjusted to his prison environment. Specifically, Ms. Trathen stated:
After today’s decision competent defense counsel in capital cases will instruct their clients to behave like Eagle Scouts while awaiting trial, and particularly while awaiting sentencing. In capital cases, this will be more important to a defendant than the customary advice of counsel in a criminal trial to advise his client to behave himself while in the courtroom. It is indeed novel doctrine that compliance with this advice by a defendant charged with capital murder becomes a “mitigating factor” that the sentencing judge or jury must — as a matter of constitutional law — consider in passing sentence.
Tr.-II at 2347-48 (quoting
Skipper,
476 U.S. at 14 n. 3, 106 S.Ct. at 1676 n. 3 (Powell, J., concurring)).
The prosecutor attributed this quote to the concurring opinion of then Chief Justice Burger in
Skipper .
However, the prosecutor was incorrect; the statement was actually written by Justice Powell in his concurring opinion — an opinion in which then Chief Justice Burger and present Chief Justice Rehnquist joined.
. The petitioner submits that the prosecutor’s misidentification of the quote amounts to an issue of prosecutorial misconduct that should have been objected to at trial and presented on appeal. Specifically, Burris claims that the prosecutor’s statement improperly negated an important part of the mitigation evidence presented and, thus, would have amounted to a reversible error on appeal. Burris cites to the decision of the
*1337
Supreme Court of Indiana in
Miller v. State,
623 N.E.2d 403 (Ind.1993), wMch held that it is inappropriate for a prosecutor to read from a dissenting opinion during closing arguments. 623 N.E.2d at 408 . Burris argues that there is a reasonable probability that untainted
Skipper
evidence would have persuaded the jury to return a unanimous recommendation that he not receive the death penalty. In support of this claim, the petitioner cites to the sworn affidavit of attorney Inman, in which Inman asserts that counsel did not have a strategy reason for failing to object to the evidence at trial or for failing to present the claim on appeal.
The State argues that it is far from clear whether the prosecutor’s statement was even objectionable, much less so clearly objectionable that counsel’s failure to object amounted to ineffective assistance of counsel. Further, the State contends that no federal violation arises from reading a concurring opinion to a jury or from inadvertently misidentifying the true author of an opinion of the Court.
After reviewing the prosecutor’s statement in light of the totality of the record, the court finds that counsel’s failure to object to the statement was not erroneous. In
United States v. Penass, supra,
the Seventh Circuit held that the failure of trial counsel to make a contemporaneous objection to a prosecutor’s remark during closing argument triggers a review for plain error. 997 F.2d at 1230 . Thus, a court should only strike down a conviction based upon such a claim if “a miscarriage of justice would otherwise result.”
United States v. Hernandez,
865 F.2d 925, 928 (7th Cir.1989).
The court finds that sentencing counsel’s failure to object to the prosecutor’s misidentification of the true author of the
Skipper
quote can hardly be found to constitute reversible error. Indeed, it qualifies as harmless error at best. First, the prosecutor did not misstate the
Skipper
concurrence; she merely misidentified the true author of the concurring opinion. Second, it is important to note that the statement was made during closing arguments. In her preliminary instructions to the jury, Judge Gifford instructed the jurors that “[a]ny comments or remarks by the court, or by counsel,
including the opening and closing arguments of counsel,
should not be considered as evidence in this case.” Tr.-II at 170 (emphasis supplied). Judge Gifford further instructed the jury during final instructions that, “[i]n con.sidering whether any mitigating circumstances exist you may consider all of the evidence introduced during these proceedings, regardless of who introduced such evidence.” Tr.-II at 192.
The jury was instructed not to consider as evidence any statements made by either defense counsel or the prosecutor during closing arguments. Thus, Burris’s suggestion that the prosecutor’s statement improperly negated an important part of his mitigation case fails because the jury was specifically instructed not to treat such a statement as evidence. As a result, pursuant to the state trial court’s instructions, the jury could not have used the prosecutor’s statement to negate any mitigation evidence presented by Burris’s counsel. Therefore, the court finds that counsel did not err when they failed to object to or present on appeal the ground that the prosecutor’s misstatement of Justice Powell’s concurrence in
Skipper
amounted to an issue of prosecutorial misconduct and, thus, that no miscarriage of justice occurred. Consequently, Burris cannot establish that counsel’s performances were constitutionally deficient.
13
B. PHOTOGRAPH OF THE VICTIM
Burris next alleges that his sentencing and appellate counsel erred by failing to object to and present on appeal the fact that the prosecutor introduced into evidence a photograph of the victim wearing his United States Navy uniform. During the second sentencing trial, a picture of the victim in a Navy uniform was
*1338
offered into evidence through the testimony of the victim’s mother. Tr.-II at 2001. The petitioner contends that the photograph was totally irrelevant to the case and tampered in an arbitrary and capricious manner with the jury’s obligation to decide whether or not to recommend the death penalty. Again, the petitioner offers Mr. Inman’s sworn affidavit for support, as Inman asserts that counsel had no strategy reason for failing to object to the photograph when it was offered or for failing to present the issue on direct appeal.
The State argues that this claim is without merit because it is unclear whether such evidence was even objectionable. Further, the State submits that when Burris was" re-sentenced in November 1991, his attorney could reasonably have believed that the photo constituted victim impact evidence that was admissible under
Payne v. Tennessee,
501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991) — a case that had been decided approximately five months before the resentencing. Consequently, the State submits that the admission of the photograph did not render the second sentencing trial unreliable or unfair.
This court finds that counsel did not err in failing to object to or present on appeal the issue that the introduction of the victim’s photograph was prejudicial. First, the court agrees with the respondent’s contention that counsel could have reasonably believed that the photograph constituted the type of victim impact evidence which the Supreme Court held admissible in
Payne v. Tennessee, supra.
In
Payne ,
the Supreme Court held that a State may properly conclude that in order for a jury to assess meaningfully the defendant’s moral culpability and blameworthiness, a state trial court should have before it, at the sentencing phase, evidence of the specific harm caused by the defendant. 501 U.S. at 825 , 111 S.Ct. at 2608. The Court found that “[t]he state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.”
Id.
Because the photo was offered during the testimony of the victim’s mother, it is reasonable to assume that counsel could have believed that the photo constituted some form of admissible victim impact evidence.
14
Further, in
United States v. Joe, 8
F.3d 1488 (10th Cir.1993),
cert. denied,
510 U.S. 1184 , 114 S.Ct. 1236 , 127 L.Ed.2d 579 (1994), the United States Court of Appeals for the Tenth Circuit held that photographs of homicide victims are relevant evidence to establish the identity of a victim. 8 F.3d at 1499 (citing with agreement
United States v. De
Parias, 805 F.2d 1447, 1453 (11th Cir.1986),
cert. denied,
482 U.S. 916 , 107 S.Ct. 3189 , 96 L.Ed.2d 678 (1987)).
15
Closer to home, in
Averhart v. State,
614 N.E.2d 924 (Ind.1993), the Supreme Court of Indiana held that the introduction of a photograph of the victim with his granddaughter, which defense counsel did not object to, did not rise to the level of a fundamental error and did not demonstrate that trial counsel failed to render adequate representation during the trial. 614 N.E.2d at 927 . Based upon these holdings, in conjunction with the Supreme Court’s holding in
Payne, supra,
the court finds that counsel’s failure to object to the introduction of the victim’s photograph and present said issue on appeal was not error, and cannot be used as a basis to find that counsel rendered ineffective performances in the second sentencing trial or on appeal. Therefore, this claim must be dismissed.
C. PAROLE STATUS OF PETITIONER’S ACCOMPLICE
The petitioner also claims that his sentencing and appellate counsel were constitutionally ineffective because they failed to object to
*1339
and present on appeal the ground that the prosecutor improperly brought out evidence that Emmet Merriweather, one of Burris’s accomplices, was out on parole for his role in the felony murder of Kenneth Chambers. In support of this contention, the petitioner again offers Mr. Inman’s sworn affidavit, in which he states that counsel did not have a strategy reason for failing to object to such evidence. The State counters by arguing that the petitioner fails to identify any specific prejudice or resulting harm from the introduction of evidence that Merriweather was out of prison and on parole.
The basis for this claim occurred during the direct examination of witness Carol Wilkins. Ms. Wilkins was Emmet Merriweather’s girlfriend at the time of the crimes in January 1980, and her sister, Debra Wilkins, was Burris’s then girlfriend at that time. Tr.-II at 1902-03. During the State’s casein-chief, Ms. Wilkins answered the following questions:
Q. Have you had any regular contact or any real contact at all with Emmet Merriweather since 1980?
A. Well, I seen him when he was paroled. I seen him two or three times when he was paroled.
Q. Do you have any continuing relationship or any relationship whatsoever with Emmet Merriweather?
A. No.
Tr.-II at 1925-26.
A review of Ms. Wilkins’ entire testimony leads the court to find that the prosecutor, by inquiring whether Wilkins had any present relationship with Merriweather, was merely attempting to suggest that Wilkins was not testifying against Burris in order to aid her old boyfriend, Merriweather. In fact, Wilkins’ answers may very well have worked against the State; the testimony that Merriweather was out on parole for his role in the felony murder could well have substantiated a defense theory that the jury should not recommend the death penalty since one of the other individuals responsible for the felony murder was already out of jail.
Overall, the court finds the statements made by Ms. Wilkins to be rather benign in light of the totality of the record. Therefore, the court holds Bums cannot meet the first prong of the
Strickland
test because his sentencing and appellate counsel did not err when they failed to object to and present on appeal the propriety of the statements that Burris’s accomplice was out on parole.
D. STATE COURT’S DECISION NOT TO ALLOW EVIDENCE OF PETITIONER’S SELF-BLAME
Next, Burris challenges .his sentencing counsel’s performances by alleging that counsel were ineffective because they did not object to the state trial court’s decision not to allow the presentation of certain mitigation evidence. Specifically, the petitioner claims that counsel failed to object when the state trial court excluded evidence that the petitioner blamed himself for the death of May-belle Burris, the woman who was his primary caregiver during his childhood.
This issue arose during the direct examination of Dr. Richard Loughead, the psychologist who testified for Burris during the second sentencing trial. Counsel sought to introduce the self-blame evidence by having Dr. Loughead repeat what Burris had told him during their meetings. Dr. Loughead testified:
Q. Did you ever learn what became of Maybelle?
A. Yes, I did, from Gary.
Q. And what happened to her? Go ahead.
A. Maybelle Burris died of a heart attack. What happened is that Gary had come home from school and was trying to ...
Tr.-II at 2162-63 (objections omitted).
The prosecutor objected to Dr. Loughead’s answer as hearsay, and the state trial court sustained the objection. Burris now argues that his counsel were ineffective because they did not object to the state trial court’s ruling that excluded this mitigation evidence. The State argues that the exclusion of such evidence did not deprive Burris of his right to a fair trial. The State contends that the fact that Burris may have blamed himself for the
*1340
death of Maybelle Burris does not diminish his culpability for Chambers’ murder. Thus, the State argues that there is no reasonable probability that the presentation of such evidence would have influenced the jury to return a unanimous recommendation against the death penalty.
Indiana law clearly sets forth the types of mitigating circumstances that can be considered by a jury in' order to determine whether a capital defendant should be recommended to receive the death penalty.
See
Ind.Code § 35-50-2-9(c).
16
Among the circumstances that may be considered are “[a]ny other circumstances appropriate for consideration.”
See
Ind.Code § 35-50-2-9(c)(8). Thus, counsel’s attempt to introduce evidence that Burris blamed himself for Maybelle Burris’s death can arguably be considered mitigation evidence.
It is well settled that courts have long sanctioned the use of hearsay evidence at sentencing.
Roberts v. United States,
445 U.S. 552, 556 , 100 S.Ct. 1358, 1362 , 63 L.Ed.2d 622 (1980);
Del Vecchio v. Illinois Dept. of Corrections,
31 F.3d 1363, 1387 (7th Cir.1994),
cert. denied,
— U.S. -, 115 S.Ct. 1404 , 131 L.Ed.2d 290 (1995). There is no exception to this rule in a capital case.
See Williams v. New York,
337 U.S. 241, 251 , 69 S.Ct. 1079, 1085 , 93 L.Ed. 1337 (1949). The Supreme Court of the United States has held that applying the rule against the admission of hearsay evidence to preclude the defendant from introducing certain mitigation evidence in a capital ease violates due process.
Green v. Georgia,
442 U.S. 95, 97 , 99 S.Ct. 2150, 2151-52 , 60 L.Ed.2d 738 (1979).
In this case, when counsel attempted to introduce evidence of Burris’s self-blame for the death of Maybelle Burris through Dr. Loughead, the state trial court excluded the evidence by sustaining the State’s hearsay objection. Pursuant to the Supreme Court’s holding in
Green ,
this court must find that the state trial court’s decision to exclude evidence of Burris’s self-blame for the death of Maybelle Burris was improper and, thus, sentencing counsel’s performances in failing to object to that, decision were constitutionally deficient. As a result, under
Strickland ,
this court must now determine whether Burris was prejudiced by counsel’s error.
Burris has the burden of proving that absent counsel’s failure to object to the state trial court’s decision to exclude the self-blame evidence, the entire jury and Judge Gifford would have concluded that the balance of aggravating and mitigating circumstances did not warrant the imposition of a death sentence in this ease.
See Jones v. Page,
76 F.3d at 846 . After reviewing such evidence in light of the entire record, it is this court’s view that the presentation of Burris’s self-blame evidence would not have produced a unanimous jury recommendation against death or a change in Judge Gifford’s ultimate sentencing decision.
First, the evidence that Burris blamed himself for another person’s death does not serve to diminish Burris’s own culpability for the murder of Kenneth Chambers. At best, such evidence would serve only to strengthen the theory that Burris led a deprived childhood- — a theory which was already well-supported by the evidence. Second, evidence of Burris’s self-blame was in fact presented to Judge Gifford in a presentencing memorandum prepared for sentencing counsel by Michael Dennis, a case consultant. Tr.-II at 248. That memorandum was filed with the
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court and was part of the record on which Judge Gifford based her decision to sentence Burris to death. As a result, this court cannot conclude that but for counsel’s failure to object to the exclusion of the self-blame evidence, Burris would not have been sentenced to death. Therefore, under
Strickland ,
the court holds that Burris has failed to establish he was-prejudiced at sentencing by counsel’s error, and accordingly, this claim must be dismissed.
E. FAILURE TO CONSIDER AND WEIGH HUNG JURY AS A MITIGATING CIRCUMSTANCE
Burris also alleges that his appellate counsel were ineffective for failing to raise the issue that the state trial court violated his Eighth and Fourteenth Amendment rights by sentencing him to death without considering and weighing as a mitigating circumstance the jury’s inability to reach a sentencing recommendation. In support of this claim, Burris argues that although jury sentencing in capital cases is not mandatory, the jury plays a significant role in death penalty jurisprudence. He contends that the Eighth and Fourteenth Amendments require that the sentencing judge be allowed to consider such mitigation evidence in deciding whether the death penalty should be imposed. Thus, he claims that appellate counsel were ineffective by failing to raise this claim- on direct appeal. The State counters by arguing that Burris is incorrect on this point as a matter of law and that counsel’s decision not to raise such a ground on appeal was not erroneous.
The Eighth Amendment permits a state trial court judge, acting alone, to impose a capital sentence and does not require a State to define the weight a sentencing judge must give to an advisory jury verdict.
Harris v. Alabama,
513 U.S. 504 , -, 115 S.Ct. 1031, 1036-37 , 130 L.Ed.2d 1004 (1995). In
Harris,
the Supreme Court upheld Alabama’s capital sentencing scheme, which like Indiana’s death penalty statute, requires jury participation in the sentencing process but gives ultimate sentencing authority to the state trial court judge. 513 U.S. at -, 115 S.Ct. at-1034;
see also
Ala.Code §, 13A-5-47(e). Further, Indiana’s death penalty statute specifically provides for the scenario where the advisory jury is unable to return a unanimous sentencing recommendation: “If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.” Ind.Code § 35-50-2-9(f). Thus, Indiana law is quite clear; if the jury is unable to unanimously agree on a sentencing recommendation, the judge is to proceed as if there had not even been a jury and sentencing had been to the court alone.
17
Accordingly, the petitioner’s argument that the judge improperly failed to consider and weigh the jury’s inability to agree on a sentencing recommendation as a mitigating factor is contrary to well-established law.
Moreover', as the respondent argues, the Eighth and Fourteenth Amendments require a capital sentencing authority to consider in mitigation only those aspects “of a defendant’s character or record and any of the circumstances of the offense that the defendant prooffers as a basis for a sentence less than death.”
Lockett v. Ohio,
438 U.S. 586, 604 , 98 S.Ct. 2954, 2965 , 57 L.Ed.2d 973 (1978). Following
Lockett ,
the court finds that the jury’s inability to unanimously agree on a sentencing, recommendation cannot be considered an aspect of Burris’s character or record, or a circumstance related to the crime for which he was sentenced. Accordingly, the state trial court was . not required to consider or weigh in support of mitigation the fact that the jury hung on its sentencing recommendation. As a result, Burris cannot establish that his appellate counsel were deficient for failing to raise such a meritless argument on direct appeal.
F. EQUAL PROTECTION CLAIM
Burris’s sixth allegation states that counsel failed to preserve for and present on appeal the issue that the state trial court- denied Burris’s rights under the Equal Protection
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Clause of the Fourteenth Amendment when the jury was not allowed to have any role in his sentencing after the jury was unable to unanimously agree on a sentencing recommendation. The State argues that equal protection concerns are not implicated in this case because Indiana’s death penalty statute applies equally to all capital defendants. Thus, the State submits that counsel’s failure to preserve and present such a claim on appeal was not constitutionally defective.
Initially, the court finds that the Equal Protection Clause has not been transgressed in this case. It appears that the petitioner’s argument is based on the premise that the failure to have a jury’s recommendation be utilized in his sentencing determination sets him apart from other capital defendants whose juries do unanimously agree on a sentencing recommendation. A review of Section 35-50-2-9 of the Indiana Code clearly establishes that the Indiana death penalty statute applies equally to all criminal defendants that are charged with a capital crime. Each capital defendant who was convicted in a trial by jury is entitled, at sentencing, to have a jury hear evidence, deliberate and recommend whether the State has proved at least one aggravating factor and whether the aggravation evidence outweighs any mitigation evidence offered. Apparently, the petitioner believes that his equal protection rights were violated when Judge Gifford did not allow the jury to have any role in his sentencing after the jury was unable to unanimously agree on a sentencing recommendation. However, for the foregoing reasons, it this court’s view that the petitioner’s argument is without merit.
However, assuming for the sake of argument that Burris’s equal protection rights have been implicated, the court finds that no constitutional violation exists in this case. The United States Courts of Appeals for the First, Fourth and Fifth Circuits have held that capital defendants are not a suspect class for equal protection purposes.
See Dickerson v. Latessa,
872 F.2d 1116, 1119 (1st Cir.1989);
Evans v. Thompson,
881 F.2d 117, 121 (4th Cir.1989),
cert. denied,
497 U.S. 1010 , 110 S.Ct. 3255 , 111 L.Ed.2d 764 (1990); and
Williams v. Lynaugh,
814 F.2d 205, 208 (5th Cir.),
cert. denied,
484 U.S. 935 , 108 S.Ct. 311 , 98 L.Ed.2d 270 (1987).
18
Thus, in this ease, Indiana’s death penalty statute must be presumed valid and sustained if it is found to be “rationally related to a legitimate state interest.”
City of Cleburne, Texas v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 440 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985). It is important to note that the death penalty scheme which the State of Indiana employs has been declared constitutional on several occasions.
See, e.g., Schiro v. Clark,
963 F.2d 962, 969 (7th Cir.1992),
aff'd sub nom. Schiro v. Farley,
510 U.S. 222 , 114 S.Ct. 783 , 127 L.Ed.2d 47 (1994).
In this court’s view, the State of Indiana has a legitimate reason to treat a unanimous jury sentencing recommendation differently than a scenario where the jury is unable to reach a unanimous recommendation — capital sentencing is first and foremost a duty left to the state trial court judge by statute. As noted above, allowing a state court judge full authority in capital sentencing is constitutional.
See Harris,
513 U.S. at -, 115 S.Ct. at 1034 . The Supreme Court of the United States has even held that a judge may impose the death penalty despite a jury’s recommendation to the contrary, since a criminal defendant does not have a constitutional right to jury sentencing in capital cases.
Spaziano v. Florida,
468 U.S. 447, 460-61 , 104 S.Ct. 3154, 3162-63 , 82 L.Ed.2d 340 (1984). The rationality of Indiana’s death penalty statute is clear; as the respondent submits, by allowing an informed judge to perform the role of senteneer alone when a jury is unable to reach a unanimous recommendation, Indiana’s death penalty procedure serves a judicial economy interest because it avoids the necessity of holding a second lengthy trial to a different jury that would be required if a hung jury was left a significant role in capital sentencing.
The reasoning behind this court’s opinion that the petitioner has no constitutional support on this claim was succinctly summarized by the Supreme Court of Indiana in the recent decision in
Holmes v. State,
671
*1343
N.E.2d 841 (Ind.1996). In
Holmes ,
the Supreme Court held:
The legislative decision that it is only the unanimous jury recommendation which should be given special consideration by the sentencing judge in a capital case rests upon at least two grounds. First, capital sentencing is a job for the judge. A jury may possibly be of assistance and aid to the judge, but the judge must make the final decision. Even when a jury unanimously recommends against the death sentence, the question of whether death is appropriate remains a judicial one. Second, there is the notion that the assistance and aid which is needed and beneficial to the proper functioning of the sentencing judge is that assistance and aid which is the product of a jury while operating at the same high level as required when rendering a verdict upon guilt or innocence. The basic values upon which the requirement of a unanimous jury recommendation rests are those values upon which rest the requirement of a unanimous jury verdict. Those values are threatened if nonunanimous jury recommendations were required to be considered by the sentencing judge. When the capital sentencing roles of judge and jury are seen in this light, it is apparent that the requirement that the sentencing judge consider the jury recommendation need not apply in the absence of a unanimous juror viewpoint.
671 N.E.2d at 852.
When the petitioner’s claim is viewed in light of the applicable law, it is clear that the state trial court did not violate the petitioner’s equal protection rights by not allowing the hung jury to play a significant role in sentencing. As a result, the petitioner cannot meet his burden under the first prong of
Strickland
since counsel did not err in failing to raise an equal protection claim on appeal. Thus, this claim must be dismissed.
G. CUMULATIVE ERRORS
Finally, the petitioner also contends that the cumulative errors of sentencing and appellate counsel create a reasonable probability that had such errors not occurred, the jury would have returned a unanimous recommendation against the imposition of the death penalty and the state trial court judge would not have imposed the death sentence. As stated above, this court found that counsel’s performances were in fact constitutionally deficient in only one instance — when counsel failed to object to the state court’s exclusion of the mitigation evidence that Burris blamed himself for the death of Maybelle Burris. However, this court also found that Burris failed to fulfill the second prong of the
Strickland
test because he could not establish that he had been prejudiced by counsel’s error.
As a result, Burris’s inability to prevail fully on any one of his six claims of ineffective assistance of counsel precludes him from accumulating such claims to establish constitutional error.
See Wainwright v. Lockhart,
80 F.3d 1226 , 1233 (8th Cir.) (holding that errors that are not unconstitutional individually cannot be added together to create constitutional violation),
cert. de

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2098632. Public record. Not legal advice.