Melvin Newman v. Rick Harrington

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3725

MELVIN NEWMAN,

Petitioner-Appellee,

v.

RICK HARRINGTON, Warden,

Respondent-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:08-cv-04240 — Robert M. Dow, Jr., Judge.

ARGUED MAY 29, 2013 — DECIDED AUGUST 9, 2013

Before BAUER, WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Melvin Newman was convicted in

Illinois state court of first-degree murder of Andrew Dent and

sentenced to 47 years’ imprisonment. Following affirmance of

his conviction and sentence on direct appeal, Newman filed a

state post-conviction petition, asserting three grounds for

relief, only one of which is relevant here. The Illinois Court of

Appeals affirmed the circuit court’s dismissal of his petition,

2 No. 12-3725

with one justice dissenting, and Newman exhausted his state

court remedies. Newman filed a federal habeas petition under

28 U.S.C. § 2254, alleging that his trial counsel rendered

ineffective assistance in failing to investigate Newman’s fitness

for trial and failing to seek a fitness hearing. Newman contends

that the state court’s denial of his post-conviction petition

resulted in a decision that unreasonably applied Strickland v.

Washington, 466 U.S. 668 (1984) and its progeny. He also

argued that the state courts’ determinations of his fitness to

stand trial were unreasonable given the evidence presented in

the state court record.

The district court held an evidentiary hearing over several

days and determined on the basis of the state court record that

the state courts unreasonably concluded that Newman was not

prejudiced by his counsel’s failure to investigate his fitness to

stand trial and bring the issue of his fitness to the trial court’s

attention. The district court also found that counsel’s failures

to investigate known deficiencies in Newman’s mental capacity

and to raise the fitness issue with the trial judge constituted

ineffective assistance. Based on the entire record, including the

evidence presented at the federal habeas evidentiary hearing,

the district court determined that counsel’s “performance fell

below the constitutional minimum and that Newman was

prejudiced by his counsel’s performance because there is a

reasonable probability that Newman would have been de-

clared unfit to stand trial at a competency hearing.” Therefore,

the district court decided that Newman was being held in

custody in violation of federal law and granted Newman

habeas relief. The state appealed from that decision. Finding no

error, we affirm.

No. 12-3725 3

I. Background

A. Newman’s State Criminal Case

In July 2001, Andrew Dent was shot and killed. The day

after the shooting, the police went looking for Melvin

Newman, then 16 years old. Within a few days, Newman,

accompanied by his mother, Barbara Newman, turned himself

in to the police and was arrested for Dent’s murder. Newman’s

mother hired attorney Michael Johnson and during their first

conversation told him that her son was a “special child” who

attended a “school for the handicapped, the mental school.”

During their first meeting, she gave Johnson a two-inch-thick

stack of educational and psychological records reflecting

Newman’s lengthy history of severe mental and cognitive

deficits. The records included a diagnosis of mental retardation

from the Social Security Administration, a school psycholo-

gist’s report indicating that Newman’s IQ was 62, and an

Individualized Education Program report indicating that

Newman read at a first-grade level.

Newman’s case was tried by a jury in 2002. At trial,

Newman had two colloquies with the trial judge. The first

regarded his constitutional right to testify or not to testify. The

judge advised Newman that if he did not testify, the jury

would be instructed that they “should not draw any inference

from that whatsoever.” Newman’s only responses during the

colloquy were “Yes, sir” and “No, sir.” Toward the end of the

colloquy, the judge asked Newman, “And knowing all of this,

your constitutional rights to testify and not testify and having

discussed it with your mother and your attorney, what is your

wish?” Newman responded, “No, sir.” The judge restated the

4 No. 12-3725

question as “You don’t want to testify, is that correct?”

Newman again said, “No, sir.” The second colloquy concerned

whether Newman wanted a jury instruction on second-degree

murder. Again, Newman’s only responses to the judge’s

questions were “Yes, sir” and “No, sir.” Newman was con-

victed and sentenced to 47 years’ imprisonment. He appealed

to the Illinois Court of Appeals, which affirmed. People v.

Newman, No. 1-02-2615 (Ill. App. Ct. Mar. 31, 2004).

B. State Post-conviction Proceedings

The next year, Newman sought post-conviction relief in

Illinois state courts, raising his claim of ineffective assistance of

counsel. See 725 ILCS 5/122-1(a)(1). His petition was supported

by a wealth of evidence, including the 2005 report of Antoi-

nette Kavanaugh, Ph.D., a licensed clinical psychologist, who

opined that Newman had cognitive deficits, specifically that he

is moderately to mildly mentally retarded. She also opined that

Newman had been unfit to stand trial. Kavanaugh reported

that his “cognitive deficits are readily apparent” and “should

have been apparent to anyone who attempted to have a

conversation with [him] and posed questions to him that

required more than a yes or no answer.”

Kavanaugh’s report was based on two clinical interviews

with Newman over a two-week period in 2005, totaling about

five hours. She also administered a series of psychological tests

to Newman and reviewed his academic and psychological

records, including his petition for post-conviction relief and

exhibits. Intelligence testing revealed that Newman’s full scale

IQ was 54 and his intellectual abilities were in “the Extremely

Low Range.” His performance on word reading, mathematics

No. 12-3725 5

reasoning, reading comprehension, and listening comprehen-

sion placed him in the less than 0.1 percentile for each aca-

demic area. Specifically, Newman’s word reading skills were

equal to the average skills of a 7-year-old; his reading compre-

hension skills were equal to those of someone who is not yet 6-

years old; his listening comprehension skills were equal to

someone age 4 years and 8 months; and his mathematics

reasoning abilities were equal to those of a 5-year-old. Based on

his performance on a “Digit Span” test, Kavanaugh believed

that Newman was not feigning his cognitive deficits.

Kavanaugh also interviewed Newman’s mother and

Katherine Daphne Whitington, a reading specialist who had

worked with Newman one-on-one while he was at the

juvenile-detention center at the time of his trial. Whitington

advised Kavanaugh that Newman had “profound reading

disabilities” and couldn’t tell time. Whitington stated that he

“can’t deal with vaguely abstract concepts,” for example, he

didn’t know what “word” was. She said that “it was most

evident to [her] that [Newman] didn’t understand things …

when he was talking … about his case. He had no clue and it

was obvious that he had no clue.” Whitington also said that

Newman “has a horrible memory” and sometimes had

problems recalling what he did five minutes earlier. Newman’s

mother informed Kavanaugh that at the time of trial, Newman

could not write his name and was still wetting the bed.

Newman’s mother also reported that he did not ask her many

questions about what was going on in the case. When he did

ask questions, however, they suggested to her that he didn’t

understand why he was there and what was happening in

court.

6 No. 12-3725

Kavanaugh determined that Newman was not currently fit

to stand trial and would not have been fit to stand trial at the

time of the proceedings. She explained that he did not under-

stand basic legal concepts such as “witness” and “evidence”

and did not understand the roles of the state attorney, defense

attorney, judge, or jury. Kavanaugh observed that he “consis-

tently demonstrated difficulty retaining what he had been told

over the course of the evaluation related to fitness.” She

believed that his inability to recall information “would have

significantly interfered with his ability to assist in his defense

and [to] understand the nature and purpose of the proceed-

ings.” His lack of understanding of the proceedings was

evidenced by his failure to understand his sentence. She also

reasoned that his concrete and simplistic thinking prevented

him from making various legal decisions to assist in his

defense. Thus, in Kavanaugh’s clinical opinion, Newman could

not and was not able to assist in his own defense. Finally, she

did not think that he could be restored to fitness within one

year.

Newman’s post-conviction petition was supported by

numerous other records and affidavits, which reflected his

history of cognitive deficits. For example, a 1995 Social Security

Administration report found him eligible for disability benefits

due to mental retardation. A July 2000 Chicago Public Schools

psychological evaluation report indicated that Newman’s IQ

was 62 and that this along with his reading and math skills

ranked in the first national percentile. A 2003 psychological

report from Macon Corrections (within Menard Correctional

Center) stated that Newman’s IQ was 65 even though he put

forth his “best effort” during testing. The report also noted that

No. 12-3725 7

he could not tell time and had problems counting money and

making change. Special education teacher June Randall, who

taught Newman in 2000-2001, stated in her affidavit that

Newman was “a truly mentally retarded student” who “was

very slow to learn” and had “the most trouble understanding

complex or abstract concepts.” According to Randall, he

needed to have such concepts explained to him in “very

simple, concrete steps” or he would not grasp them. Similarly,

Whitington stated in an affidavit that in 2001 and 2002,

Newman was a “non-reader” with “memory problems” who

“struggle[d] to understand abstract concepts.” She added that

when she “spoke with Melvin about his case … it was obvious

that he did not know what was going on, especially when [she]

would ask him questions that required more than a ‘yes’ or

‘no’ answer.” Newman’s own affidavit signed in 2004 stated,

inter alia, that he had difficulties in school and that other kids

laughed at him when he could not answer the teacher’s

questions. Newman’s mother stated in an affidavit that before

trial she gave Johnson a stack of medical records, psychological

evaluations, and school evaluations, all regarding Newman’s

disability.

The trial court denied Newman’s petition without an

evidentiary hearing, and Newman appealed to the Illinois

Appellate Court. That court, with one dissenting justice,

affirmed. It concluded that Newman “has failed to demon-

strate that a bona fide doubt as to his fitness to stand trial

existed at the time of trial.” People v. Newman, No. 1-06-1977,

slip op. at 10 (Ill. App. Ct. Sept. 4, 2007). The state appeals court

briefly (and selectively) mentioned a few of the exhibits

attached to Newman’s post-conviction petition: 1998 and 1999

8 No. 12-3725

psychiatric assessments from Hartgrove Hospital; the Chicago

Public Schools July 2000 psychological evaluation report; the

2003 psychological report from Macon Corrections; a July 2002

social investigation by the juvenile-court probation officer; and

Kavanaugh’s report. The court found that Newman’s allega-

tions “[a]t most … establish[ed] that he has limited intellectual

ability, but do not speak to his fitness to stand trial.” Id. at 9. It

also found that the record “do[es] not indicate that [Newman]

was anything other than academically challenged and a slow

learner,” and “does not indicate that his demeanor during trial

was inappropriate, and at all times he responded appropriately

to questioning by the trial court.” Id. at 10. In making these

determinations, the court concluded that Kavanaugh’s report

was “irrelevant in terms of considering whether [Newman]

was unfit at the time of trial because the evidence must be

considered in light of the facts known at the time of trial.” Id.

at 11. The court only addressed prejudice; it did not address

whether counsel’s performance was deficient.

C. Federal Habeas Proceedings

Following the denial of his state petition for post-conviction

relief, Newman filed a federal habeas petition under 28 U.S.C.

§ 2254 in the district court. The district court held an eviden-

tiary hearing over several days in early 2011 at which

Newman, Johnson, Newman’s mother, Whitington,

Kavanaugh, and the state’s expert, psychiatrist Stafford Henry,

among others, testified.

Whitington testified that when Newman approached her

for help with reading while he awaited trial in 2001, he “could

not read at all” and he could recognize “some letters but not

No. 12-3725 9

consistently.” Whitington worked with Newman about 45 to

60 minutes per day, five days a week, year round, yet

Newman’s progress was slow. He retained “very little” of

what she taught him. “[T]hings that he seemed to have

mastered the day before, he would have forgotten by the next

day.” His progress “was slower than that of “almost any other

student” of Whitington’s. At the time of his conviction in 2002,

Newman read only at the kindergarten level. When

Whitington tried to talk with him about basic abstract concepts,

he “would get lost.”

Daniel Dillon, a 25-year special education teacher who

taught Newman at the juvenile-detention center “testified

credibly,” according to the district court, that Newman was

“one of the lowest students” that he had ever taught. Newman

worked hard to learn but nonetheless after one year he still

could not read, spell a four-letter word, or write a sentence

without copying it. Dillon stated that when Newman learned

basic things like how to spell “cat,” he would immediately

forget them. The last day of class, Newman said, “I wish you

would put the ABCs on the board because I don’t know my

ABCs”—Dillon had not heard anyone say that before. Based on

their daily interactions in 2002, Dillon did not believe that

Newman was able to understand concepts like “constitutional

right to testify,” “inference,” “consulting,” and “second degree

murder jury instruction”—even if they were explained to him.

A special-education teacher at Menard Correctional Center,

Jerry South, testified that in 2004, Newman was illiterate and

could not tell time or do basic arithmetic. South agreed with a

Department of Corrections’ educational assessment of

Newman as mentally retarded. According to South, Newman

10 No. 12-3725

had made “substantial progress” in class at Menard such that

in 2008 he was he was reading at a sixth-grade level.

Newman’s mother testified that before trial, she handed

Johnson a 5-inch stack of papers on her son’s mental disability,

including the documents attached to the state-court post-

conviction petition. When asked how high the stack of papers

she had collected on Newman’s disability and given to Johnson

was, the record reflects that she said, “About like this” and

made a gesture indicating the height. Counsel stated that she

demonstrated a height of about 5 inches, and the court said,

“Looks right to me.” However, the court apparently gave the

state the benefit of any doubt as to exaggeration of the thick-

ness of the papers and found that Newman’s mother gave

Johnson a 2-inch thick stack of records. Newman’s mother also

stated that Newman’s disability is that he is “retarded” and she

“hate[s] that word.” She prefers to call him “special.” She

testified about the problems Newman had in school and in

learning to read. The district court found that many of the facts

about which she testified were corroborated by independent

sources, although it viewed her testimony with caution because

she was Newman’s mother.

Newman also testified at the evidentiary hearing. Based on

the “opportunity to observe [him] in person during the

evidentiary hearing—and especially during his testimony,” it

was evident to the district court that “Newman’s mental acuity

is noticeably lower than any other witness who has testified at

any proceeding over which the undersigned judge has pre-

sided.”

No. 12-3725 11

Johnson testified that at the time of Newman’s trial, he

represented as many as 75 clients. Johnson said that when he

began reviewing the documents Newman’s mother had given

him, he had “some concerns” that Newman might be unfit. But

after reviewing everything and talking to Newman, he “no

longer had those concerns.” In Johnson’s opinion, Newman’s

problem was either attention deficit disorder (ADD) or

attention deficit hyperactive disorder (ADHD), which was

causing him difficulty in intelligence testing. Johnson claimed

that Newman assisted him in preparing for trial by identifying

photographs of his neighborhood. Johnson believed that

Newman’s Global Assessment Functioning (GAF) score of 55

out of 100 was “not bad” and “pretty good.” However,

according to Kavanaugh, that score reflects “significant

impairment” and is typical of someone with mental retarda-

tion. Johnson also testified that he thought Newman was fit

because Hartgrove Hospital records did not indicate a concern

with a mental impairment or mental retardation and he knew

Newman had been enrolled in the Lincoln’s Challenge pro-

gram, which Johnson believed would not accept mentally

retarded kids. (Newman’s mother had filled out her son’s

application to the program; she did not indicate that he was

retarded.)

Kavanaugh testified at the evidentiary hearing consistent

with her report that Newman had been unfit to stand trial in

2002. In contrast, a psychologist hired by the state in 2010,

Stafford Henry, testified that Newman was fit to stand trial. In

his view, Newman understood the nature and purpose of the

proceedings against him. This was based on the fact that

Newman knew he had a lawyer whose job was to help him;

12 No. 12-3725

Newman had said “the guys in suits were against me” and

were “mean to me”; and Newman was aware that “the judge

was present at trial, that he is in charge of the courtroom.”

Kavanaugh, however, testified that this indicates only that

Newman was reporting what he saw in the courtroom, not that

he actually understood what was happening. Henry also

concluded that in 2002 Newman was able to assist in his own

defense. This opinion was based on a claimed lack of evidence

of a cognitive defect to the contrary, and Newman’s statement

that he spoke with his lawyer and said “he didn’t do it,” as

well as Johnson’s deposition testimony that he went over

aspects of the case with Newman and had no difficulty

communicating with him. Henry thought Newman was

malingering. He interviewed Newman only once and for less

than two hours. Henry did not administer any tests and he did

not interview anyone who knew Newman at the time of trial.

Nor did he offer any reason for disregarding the numerous

reports that clearly indicated Newman had a history of serious

mental deficits.

The district court granted the petition, finding that the state

appellate court had unreasonably determined the facts and

unreasonably applied Strickland in holding that Newman had

not shown prejudice from counsel’s ineffectiveness. The district

court also determined that Newman was in custody in viola-

tion of the Constitution or laws of the United States based on

his satisfaction of both prongs of Strickland: (1) Johnson’s

performance was deficient when he failed to conduct a further

investigation and seek a fitness hearing; and (2) crediting

Kavanaugh’s testimony over Henry’s, Newman proved there

No. 12-3725 13

was a reasonable probability that he would have been found

unfit to stand trial. The state appealed.

II. Discussion

The state argues that in finding that the Illinois appellate

court unreasonably applied Strickland and unreasonably

determined the facts, the district court failed to accord appro-

priate deference to the state court’s decision and erroneously

evaluated the state court’s judgment denying post-conviction

relief. We disagree. The district court was appropriately

deferential to the state court’s determinations. Nonetheless, the

state record contains compelling evidence that the state court’s

denial of post-conviction relief involved an unreasonable

application of Strickland and was based on an unreasonable

determination of the facts. The state also contends that

Newman is not entitled to habeas relief. We disagree with that

position as well: Johnson’s failure to investigate Newman’s

fitness and request a fitness hearing was constitutionally

deficient, and based on the entire record, there is a reasonable

probability that Newman would have been found unfit to

stand trial.

When reviewing the district court’s decision on a habeas

petition, we review its factual findings for clear error and its

legal conclusions de novo. Crockett v. Hulick, 542 F.3d 1183,

1188 (7th Cir. 2008). Where a state court adjudicated the

petitioner’s claim on the merits, the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) prohibits a federal court

from granting habeas relief unless the state-court adjudication

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

14 No. 12-3725

determined by the Supreme Court of the United States” or

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence” before the

state court. 28 U.S.C. § 2254(d)(1)–(2). A federal court’s review

of a state court’s decision under § 2254(d) is limited to the

record before the state courts. See Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011). Newman contends that the state court’s

adjudication resulted in a decision that involved an unreason-

able application of clearly established federal law and was

based on an unreasonable determination of fact.

Federal habeas courts are generally “limited to a deferential

review of the reasonableness, rather than the absolute correct-

ness, of a state court decision.” Mosley v. Atchison, 689 F.3d 838,

844 (7th Cir. 2012) (citation omitted). Under § 2254(d)(1), “an

unreasonable application of federal law is different from an

incorrect application of federal law.” Harrington v. Richter, 131

S. Ct. 770, 785 (2011) (quotation and citation omitted). “A state

court decision is an ‘unreasonable application of … clearly

established Federal law’ when the court applied Supreme

Court precedent in ‘an objectively unreasonable manner.’”

Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013) (quoting

Brown v. Payton, 544 U.S. 133, 141 (2005)). A “state prisoner

must show that the state court’s ruling on the claim … was so

lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.

Under § 2254(d)(1), “we presume that the courts’ factual

determinations are correct unless [Newman] rebuts the

presumption by clear and convincing evidence.” Taylor v.

Grounds, No. 12-2632, 2013 WL 3336716, at *7 (7th Cir. July 3,

No. 12-3725 15

2013) (citing 28 U.S.C. § 2254(e)(1)). This standard is demand-

ing, but not insurmountable. Id. As for § 2254(d)(2), federal

courts conclude that a state court decision was based on an

unreasonable determination of the facts “if it rests upon fact-

finding that ignores the clear and convincing weight of the

evidence.” Id. (quotation and citation omitted).

Newman’s ineffective-assistance-of-counsel claim is

analyzed under Strickland’s familiar two-part test. First,

Newman “must show that counsel’s performance was defi-

cient,” Strickland, 466 U.S. at 687, that is, it “fell below an

objective standard of reasonableness,” id. at 688. Courts

“indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Id. at 689. Newman also must show that counsel’s deficient

performance prejudiced his defense, that is, his “errors were so

serious as to deprive [Newman] of a fair trial, a trial whose

result is reliable.” Id. at 687. Under this test, Newman “must

show that there is a reasonable probability that, but for coun-

sel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the out-

come.” Id. When a habeas petitioner challenges a state court’s

application of Strickland under § 2254(d), our review is

“doubly” deferential. Harrington, 131 S. Ct. at 788.

“‘Counsel has an obligation either to investigate possible

defenses or make reasonable decisions that particular investi-

gations are unnecessary.’” Warren, 712 F.3d at 1100 (quoting

Burt v. Uchtman, 422 F.3d 557, 566 (7th Cir. 2005)). The test for

fitness or competency to stand trial is “whether [the defendant]

16 No. 12-3725

has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding—and whether he

has a rational as well as factual understanding of the proceed-

ings against him.” Dusky v. United States, 362 U.S. 402, 402

(1960) (per curiam). This standard comports with the standard

under Illinois law. See 725 ILCS 5/104-10 (“A defendant is

presumed to be fit to stand trial … [and] is unfit if, because of

his mental or physical condition, he is unable to understand the

nature and purpose of the proceedings against him or to assist

in his defense.”). Where, as here, a petitioner alleges ineffective

assistance because of counsel’s failure to investigate and

request a fitness hearing, “‘we have interpreted the Strickland

prejudice inquiry as asking whether there is a reasonable

probability the defendant would have been found unfit had a

hearing been held.’” Warren, 712 F.3d at 1100 (quoting Burt, 422

F.3d at 567); see also People v. Johnson, 794 N.E.2d 294, 306 (Ill.

2002) (“To establish the prejudice prong of the Strickland test,

a defendant must show that the facts that would have raised a

bona fide doubt of his fitness for trial existed at the time of his

trial … .” (citations omitted)). Thus, to prevail under § 2254(d),

Newman must show that the state court’s determination that

there was no reasonable probability of a different result was

unreasonable. See Harrington, 131 S. Ct. at 785, 792.

A. The State Court Unreasonably Applied Strickland

Newman alleges that his trial attorney Johnson rendered

ineffective assistance when he failed to investigate an obvious

issue regarding Newman’s fitness to stand trial and failed to

request a fitness hearing. The Illinois appellate court did not

address Strickland’s performance prong but concluded that

No. 12-3725 17

Newman could not establish prejudice because he could not

raise a bona fide doubt that he was unfit to stand trial. In doing

so, the state court deemed Kavanaugh’s report “irrelevant in

terms of considering whether [Newman] was unfit at the time

of trial because the evidence must be considered in light of the

facts known at the time of trial.” This determination is an

unreasonable application of Strickland under § 2254(d)(1).

The fact that Kavanaugh’s clinical evaluation of Newman

occurred three years after his trial does not render her report

irrelevant. We have said that “the mere passage of time may

not make [a retrospective competency hearing] meaningless.

The passage of even a considerable amount of time may not be

an insurmountable obstacle if there is sufficient evidence in the

record derived from knowledge contemporaneous to trial.”

United States ex rel. Bilyew v. Franzen, 842 F.2d 189, 193 (7th Cir.

1988) (alteration in original) (quotation and citation omitted).

A state court’s decision that completely disregards an expert’s

opinion as to the defendant’s fitness at the time of trial involves

an unreasonable application of the Strickland standard. See

Burt, 422 F.3d at 570 (state court failed to mention expert’s

opinion that defendant did not comprehend legal advice and

completely disregarded another expert’s opinion that defen-

dant’s history warranted a competency hearing).

As Newman notes, for persons like him, who suffer from

chronic mental disorders, retrospective evaluations are

particularly appropriate “because there is more likely to be

considerable documentation of their mental functioning over

time.” Robert D. Miller & Edward J. Germain, The Retrospective

Evaluation of Competency to Stand Trial, 11 Int’l J.L.& Psychiatry

18 No. 12-3725

113, 122 (1988). The state court apparently overlooked that

Kavanaugh’s report was retrospective—she opined as to

Newman’s fitness at the time of trial as well as at the time she

met with him. Furthermore, Kavanaugh’s opinion was based

in part on her interviews of people who knew Newman well at

the time of trial and could provide information regarding his

abilities and fitness at that past, critical time. Kavanaugh

considered facts known at the time of trial such as Newman’s

extensive educational and psychological records as well. The

state speculates that it is difficult to tell how Newman’s mental

state might have been affected by three years of incarceration,

but Kavanaugh concluded that her view of Newman’s then-

current mental abilities was consistent with records and

evidence regarding his abilities and deficits at the time of trial,

and indeed, even before that time.

The state suggests that Newman may have presented

himself in a light that would increase his hopes of having his

conviction overturned. However, “a defendant cannot readily

feign the symptoms of mental retardation.” People v. Shanklin,

814 N.E.2d 139, 144 (Ill. App. Ct. 2004). Kavanaugh tested

Newman for malingering and concluded that he was not. In

addition, her consultation with Newman’s mother and former

teacher Whitington convinced her that his presentation was

consistent with his past behavior. Further, a comparison of

Kavanaugh’s evaluation of Newman and his abilities demon-

strates consistency with the numerous school and psychologi-

cal reports on Newman gathered over the years. It would be

unreasonable to think that Newman began faking symptoms

of mental retardation before he was 11-years-old, leading to the

creation of documentation 2-inches thick reflecting his mental

No. 12-3725 19

deficits just to “use his manufactured retardation to confuse the

justice system.” Id.

Kavanaugh’s expert opinion was well-supported and

relevant. It was consistent with the numerous reports from

psychological and educational experts over many years (about

a decade) leading up to trial and after. The state appellate

court’s decision to find Kavanaugh’s report irrelevant was an

unreasonable application of Strickland.

B. The State Court Made an Unreasonable Determination of the

Facts

In addition, the state court’s decision to deny Newman’s

post-conviction petition was based on an unreasonable

determination of the facts in light of the state-court record. The

state court unreasonably determined that Newman was

nothing “other than academically challenged and a slow

learner.” This factual determination is quite troubling. It

ignores Kavanaugh’s expert report and most of the other

evidence in the record that establishes that Newman’s cogni-

tive deficits run far deeper than that. Indeed, the clear and

convincing evidence demonstrates that Newman is mentally

retarded. By ignoring Kavanaugh’s key expert evidence that

Newman was moderately to mildly mentally retarded, the

state appellate court’s application of Strickland was unreason-

able and its factual determinations as to Newman’s mental

limitations and fitness were also unreasonable. See, e.g., Julian

v. Bartley, 495 F.3d 487, 494 (7th Cir. 2007) (state court’s factual

determination was against the clear and convincing weight of

the evidence where it ignored key evidence). The state replies

that the state court did not “ignore” the report, but simply

20 No. 12-3725

chose not to rely on it. This is a distinction without a difference,

and the state court’s rationale for disregarding the report does

not withstand scrutiny even under our deferential review.

We fail to see how Kavanaugh’s opinion that Newman was

not fit to stand trial in 2005 or in 2002 and that he would not be

restored to fitness within one year from the time of trial was

undercut by Newman’s 2004 affidavit, stating that he was

“starting to understand” the legal concepts about which the

trial court had questioned him. Putting aside the fact that it

was not until 2004—three years after trial—that Newman was

“starting to understand” legal concepts (it is unsurprising that

even a mentally retarded person would make some intellectual

progress over time), the state fails to appreciate the difference

between beginning to understand an abstract concept and

actually comprehending it. Besides, in his affidavit, Newman

repeatedly asserts that he “did not understand” concepts such

as “the difference between first- and second-degree murder”

and that he “did not really understand what was happening at

the trial.” He also states that “if I understood … [some of the

words used during the trial] better at the trial I would have

been able to understand the questions that the judge asked

me.” These statements in Newman’s affidavit actually weaken

the state’s position that the affidavit undercuts Kavanaugh’s

opinion that Newman would not be restored to fitness within

one year.

The state argues that the state-court record demonstrated

that Newman was “an angry, disobedient, violent teenager

whose difficulties with learning stemmed from chronic

truancy, learning disabilities, and his refusal to try.” Notwith-

No. 12-3725 21

standing any other problems Newman may have had, the fact

remains that clear and convincing evidence in the state court

record establishes that Newman is mentally retarded and his

mental retardation adversely affected his fitness to stand trial.

The state also ignores the evidence in the record supporting the

conclusion that at least some of these other problems were

caused by Newman’s significant cognitive deficits. As noted in

the July 2000 social assessment by the Chicago Public Schools,

teachers reported that “most of [Newman’s] behavior concerns

were initiated by his inability to read and complete assign-

ments (i.e. difficulty learning new things, easily frustrated with

both home and school work … and disrupting the class to

avoid doing classroom assignments).” And notwithstanding

his frustrations with his inability to perform academically,

most of the trained professionals, psychologists and teachers,

reported that Newman “put forth his best effort” and “worked

hard.”

The problem is not that the state court failed to cite the

exact documents that the district court cited, or that the state

court did not discuss a particular piece of evidence, or even “a

good deal of the evidence” that supports Newman’s claim. Cf.

Price v. Thurmer, 637 F.3d 831, 839 (7th Cir. 2011) (stating that

Harrington “precludes [a federal habeas court from] inferring

error from the [state] court’s failure to discuss particular pieces

of evidence”). Rather, here, as in Burt, the state court’s analysis

“ignored a wealth of evidence that established a reasonable

probability [Newman] would have been found [unfit] to stand

trial had a hearing been held. 422 F.3d at 570 (citing Eddmonds

v. Peters 93 F.3d 1307, 1317 (7th Cir. 1996)). Indeed, the state

court ignored the clear and convincing weight of the evidence,

22 No. 12-3725

resulting in a decision based on an unreasonable determination

of the facts. See, e.g., Julian, 495 F.3d at 494.

We highlight just some of that evidence here. The state

court completely ignored the Social Security Administration’s

determination in 1995 that then-11-year-old Newman was

eligible for benefits on the basis of mental retardation. The state

court also completely ignored the Randall affidavit, which

corroborates the diagnosis of mental retardation and confirms

Newman’s limitations in understanding abstract concepts.

Whitington’s affidavit, which also describes Newman’s

limitations with abstract concepts, specifically states that it was

“obvious that he did not know what was going on” with his

criminal murder case. As noted, Randall taught Newman

special education in 2000–2001 and Whitington taught him in

2001, so their observations and assessments are contemporane-

ous to the trial. Furthermore, the state court failed to mention

that the Individualized Education Program (“IEP”) created in

2000 for Newman indicated that he demonstrated difficulties

in all but two of the learning characteristics. These included

“processes information slowly,” “has a short auditory attention

span,” and “had difficulty understanding concepts.” The IEP

recommended all but one of the listed accommodations,

including “explain directions and give concrete examples,”

“test one concept at a time,” and “provide visual aids.”

The state court also unreasonably determined that Newman

“at all times … responded appropriately to questioning by the

trial court.” First, the evidence establishes that “yes, sir” and

“no, sir” were the extent of Newman’s responses to the trial

court’s questioning. He never gave more than a two-word

answer and his simplistic answers do not suffice to show that

No. 12-3725 23

he understood the questions regarding his defense rights. And

Newman’s responses to the trial court’s questioning were not

at all times appropriate. During one colloquy the trial judge

asked Newman if he understood his constitutional rights to

testify and not to testify, and asked “knowing all of this …

what is your wish?” Newman responded, “No, sir.” This

nonresponsive answer lends support to the conclusion that

Newman was unable to understand the proceedings against

him and assist in his defense.

In sum, the state court’s denial of Newman’s petition was

based on an unreasonable determination of the facts in light of

the evidence presented. The state court did not address

Strickland’s first prong—deficient performance. Thus, as the

state concedes, the district court properly evaluated that prong

de novo, and it found that Johnson’s performance in failing to

investigate Newman’s fitness and seek a fitness hearing was

constitutionally deficient. See Quintana v. Chandler, No. 12-3125,

2013 WL 3800289, at *3–4 (7th Cir. July 23, 2013). We will

address the performance prong in the next section, well aware

that the § 2254(d) issue is based only on the record before the

state court, but the question of whether Newman is entitled to

habeas relief also takes into account the evidence presented at

the evidentiary hearing before the district court. See Mosley, 689

F.3d at 841–42, 853–54.

C. The District Court Correctly Determined that Newman is

Entitled to Habeas Relief

Having decided that the state court’s decision denying

post-conviction relief violated § 2254(d)(1) and (2), we assess

whether the district court correctly determined that Newman

24 No. 12-3725

is entitled to habeas relief. See Mosley, 689 F.3d at 853 (noting

that there are two separate inquiries under § 2254(d) and

§2254(a)); see also Quintana, 2013 WL 3800289, at *3 (“Although

a state court decision that stems from an unreasonable applica-

tion of federal law will usually meet § 2254(a)’s requirement …

this court will engage in de novo review after a finding of

unreasonableness to answer the 2554(a) question as if the state

court never reached the merits.”). We, like the district court,

consider the evidence presented at the federal evidentiary

hearing. See Quintana, 2013 WL 3800289, at *3.

The state argues that Newman failed to show that counsel’s

performance was deficient or that, had counsel requested a

fitness hearing, there was a reasonable probability that

Newman would have been found unfit to stand trial. Yet even

if we were to consider only the evidence in the state-court

record, we would conclude that trial counsel’s performance in

failing to investigate Newman’s fitness and seek a fitness

hearing was constitutionally deficient and prejudiced

Newman. The evidence adduced at the federal evidentiary

hearing further corroborates that conclusion.

Very early in the criminal proceedings, Newman’s mother

handed Johnson a two-inch stack of psychological and educa-

tional records concerning Newman’s history of cognitive

deficiencies. The records included a diagnosis of mental

retardation from the Social Security Administration; a Chicago

Schools psychological evaluation indicating that Newman’s IQ

was 62 and that this score as well as his reading and math skills

ranked in the first percentile nationally; and an IEP report

indicating that Newman read at a first-grade level despite

being sixteen years of age. Furthermore, the evidence estab-

No. 12-3725 25

lishes that Newman’s cognitive limitations would have been

apparent to Johnson from interacting with Newman.

Kavanaugh testified that Newman’s deficits would have been

obvious, and Whitington stated that it was evident that he did

not understand what was going on with is criminal case—“He

had no clue and it was obvious that he had no clue.” The

district court even found Newman to have the least mental

acumen of any witness that had testified before it. Johnson’s

failure to investigate the apparent problems with Newman’s

mental condition and fitness for trial constitutes deficient

performance under Strickland. See Burt, 422 F.3d at 568–69

(“The failure by defense counsel to investigate apparent

problems with a defendant’s mental health may be deficient

performance as defined by the first prong of Strickland.”

(citations omitted)); Brown v. Sternes, 304 F.3d 677, 692 (7th Cir.

2002) (“[W]here it will be apparent … from conversation with

the defendant, or from other sources of information not

requiring fresh investigation, that the defendant has some

mental or other condition that will repay further investigation

… then the failure to investigate will be ineffective assistance.”

(quotation and citation omitted)).

According to the state, however, the district court erred in

assuming, without supporting evidence, that Johnson did not

spend enough time with Newman to assess his mental state or

perform the basic investigation necessary to determine

whether to request a fitness hearing. But the district court did

not simply assume this fact; the court drew this reasonable

inference from the evidence. This evidence included

Kavanaugh’s testimony that Newman’s deficits would have

been obvious, the stack of records demonstrating his mental

26 No. 12-3725

deficiencies (a review of which we agree would raise red flags

about Newman’s fitness for trial), the high volume of cases that

Johnson was handling at the time of Newman’s trial, and the

lack of any notes or specific recollection by Johnson to show

what investigation he may have conducted. The record simply

does not bear out the state’s claim that “[t]he amount and

extent of the information that Johnson received from

[Newman] further supports Johnson’s testimony that he met

with [Newman] extensively.”

The state argues that Johnson had represented a number of

defendants with mental deficits similar to Newman’s and was

thus qualified to determine whether Newman understood him

and the nature of the proceedings. However, the evidence is

that Johnson thought a GAF score of 55 was “pretty good”; it

isn’t. The expert evidence establishes that such a score reflects

“significant impairment” and is typical of someone with

mental retardation. Similarly, Johnson’s belief that Newman

suffered from ADD or ADHD and was not mentally retarded

runs head on into the wealth of evidence in the record that

Newman was and is mentally retarded.

Furthermore, the evidence supports the reasonable infer-

ence that the conversations Johnson had with Newman would

not have calmed concerns about Newman’s fitness. Identifying

a few houses in one’s neighborhood is not the kind of assis-

tance that demonstrates fitness. And, contrary to the state’s

representation that Newman identified witnesses for Johnson

(other than Newman’s girlfriend’s brother whom Johnson

determined wouldn’t help but would hurt the defense), it was

Johnson who identified the state witnesses for Newman and

explained to him what they were going to say. Hr’g Tr. 515 (“I

No. 12-3725 27

would explain to him and tell him what the witnesses were

going to say, who the witnesses were …”) The state criticizes

Newman, who is mentally retarded, and his mother for not

telling Johnson that Newman did not understand what was

happening. Even assuming they did not, as noted, it should

have been clear to Johnson that Newman did not understand

the proceedings against him. Newman’s inability to respond

appropriately to the trial court’s questioning about his consti-

tutional rights to testify or not to testify is yet one example of

how Newman did not understand what was going on around

him. An inability to understand this basic constitutional right

further suggests that Newman was unable to assist in his own

defense.

Johnson’s knowledge that Newman had a prior juvenile

conviction (resulting from a guilty plea) and had been admit-

ted to the Lincoln Challenge program was insufficient to

alleviate any concerns as to Newman’s fitness. Johnson didn’t

know the particulars of the prior juvenile case, including

whether there had been a concern over Newman’s fitness at

that time. If Newman simply had been asked yes/no questions

in his juvenile case, his lack of understanding of the proceed-

ings could have been overlooked. In any event, the question

facing Johnson was whether Newman was fit at the time of

Johnson’s representation in the murder case. Even if Johnson

understood that the Lincoln Challenge program would not

accept a mentally impaired individual, there is no evidence

that he knew whether or not the program had been informed

that Newman was mentally retarded. (A review of the applica-

tion to the program would reveal that Newman’s mother did

not state that he had a mental handicap.)

28 No. 12-3725

The state maintains that the district court did not afford

counsel the presumption of competence. That is incorrect. But

the presumption only goes so far. When the evidence over-

whelmingly establishes that counsel should have investigated

Newman’s fitness to stand trial and raised the issue with the

trial court, but failed to do so, the presumption is rebutted.

Johnson’s testimony that obtaining a fitness examination was

a relatively easy process weighs against any argument that his

failure to request a fitness examination was effective assistance.

We agree with the district court that Johnson had a duty to

investigate the obvious problems with Newman’s mental

condition and fitness for trial and a duty to request a fitness

hearing. Thus, his failure to do so constitutes deficient perfor-

mance under Strickland.

As for Strickland’s prejudice prong, the state argues that the

state-court record shows that there was no reasonable proba-

bility that the Illinois courts would have found Newman unfit.

To be sure, Newman’s low IQ alone might not show him to

have been unfit. But as Kavanaugh explained, his mental

abilities (or deficits) could contribute to a lack of fitness.

Moreover, as our prior discussion of the record demonstrates,

the wealth of evidence, including Kavanaugh’s report and

testimony, establishes that at the time of trial Newman could

not understand the nature and purpose of the proceedings

against him.

The state argues that the district court erred in crediting

Kavanaugh’s opinions over Henry’s. It challenges her experi-

ence, as compared to his. But the district court properly

weighed the testimony and we find no clear error in its

decision to credit her testimony. As noted, Kavanaugh’s

No. 12-3725 29

evaluation of Newman’s fitness was based on two interviews

that totaled about five hours. She reviewed the numerous

records and reports regarding Newman’s mental limitations

and she consulted others who had contact with him at the time

of trial. She performed several tests on Newman as well,

including the “Digit Span” test to assess him for malingering.

Henry, in contrast, did none of these things and interviewed

Newman only once. And that interview occurred more than

eight years after his trial, whereas Kavanaugh interviewed

Newman three years after trial. Henry’s view that Newman

was malingering is the only such opinion in the record. Over

and over, teachers and psychologists such as South stated their

belief that Newman had severe cognitive limitations and,

despite them, gave his best effort. The state maintains that

Kavanaugh had an erroneous view of the fitness standard, but

both her written report and testimony at the evidentiary

hearing dispel any such concern. And her opinion that

Newman could not understand the proceedings against him

was consistent with Whitington’s and South’s testimony. In

addition, Kavanaugh explained that Henry’s opinion that

Newman understood the proceedings was based on Newman’s

testimony about what he had seen rather than on an under-

standing or appreciation of the roles of trial participants, the

judge, attorneys, witnesses, and jury.

The state, like the appeals court, points to the juvenile-

investigation report, which does not indicate that Newman had

any difficulty answering questions but contains statements

from his mother that suggest he was fit. But this is just one

assessment among many others that suggest that Newman had

difficulties with comprehension and fitness issues. Further,

30 No. 12-3725

Newman’s situation is unlike that of the petitioner in Young v.

Walls, 311 F.3d 846 (7th Cir. 2002). Like Newman, Young had

serious mental deficits including a low IQ. However, Young

had a greater ability to understand the proceedings against

him. See id. at 849–50 (noting that Young knew that a “PD” was

a public defender and knew the purpose that a trial serves).

Not only did the evidence establish that at the time of trial

Newman could not understand the nature and purpose of the

proceedings against him, it also established that he could not

assist in his own defense. The meager assistance that Johnson

says Newman gave him, such as identifying houses in his

neighborhood and identifying his girlfriend’s brother as a

possible witness (one whom Johnson believed wouldn’t help

but would hurt the defense), does not constitute meaningful

assistance. See Dusky, 362 U.S. at 402 (“[I]t is not enough for …

the defendant … [to have] some recollection of events … .”). A

defendant’s role in assisting counsel in his own defense is to

“recognize and relat[e] relevant information to counsel and

make the few trial-related decisions reserved for defendants

(i.e., whether to plead guilty, whether to request a jury trial,

whether to be present at trial, and whether to testify).” Watts v.

Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996); see also United

States v. Salley, 246 F. Supp. 2d 970, 979–80 (N.D. Ill. 2003)

(finding defendant who “lacks the competence to make

rational choices about fundamental decisions such as whether

to waive his right to counsel, to plead guilty, to confront the

witnesses against him through cross-examination, or to testify

in his own defense” is unable to assist properly in his defense

and is mentally incompetent).

No. 12-3725 31

The evidence established that Newman was unable to make

decisions about his fundamental rights. He did not understand

the role of the jury; thus, he could not make a rational choice

about whether to request a jury trial. Testimony from

Kavanaugh and Dillon as well as Newman’s own unresponsive

answer during the colloquy with the trial judge support the

conclusion that Newman could not understand the meaning of

a constitutional right, including his constitutional right to

testify or not to testify. It is evident that a defendant that does

not understand his fundamental rights cannot make rational

decisions about those rights.

Johnson’s failure to investigate Newman’s fitness and

request a fitness hearing was constitutionally deficient. Had

Johnson investigated and requested a fitness hearing, there is

a reasonable probability that Newman would have been found

unfit had a hearing been held. Accordingly, Newman is

entitled to habeas relief.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

grant of Newman’s habeas petition.