Tommy R. Pruitt v. Ron Neal

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-1880

TOMMY R. PRUITT,

Petitioner-Appellant,

v.

RON NEAL, Superintendent,

Indiana State Prison,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:09-cv-00380-RLM — Robert L. Miller, Jr., Judge.

____________________

ARGUED APRIL 9, 2014 — DECIDED JUNE 2, 2015

____________________

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Tommy R. Pruitt appeals the dis-

trict court’s denial of his petition for a writ of habeas corpus.

A jury in Indiana state court convicted Pruitt of murdering a

deputy sheriff and he was sentenced to death. His petition

under 28 U.S.C. § 2254 raises four claims: (1) he is intellectu-

ally disabled and therefore categorically and constitutionally

ineligible for the death penalty; (2) his trial counsel rendered

2 No. 13-1880

ineffective assistance in violation of his Sixth Amendment

rights by failing to present evidence to support his claim of

intellectual disability; (3) his trial counsel rendered ineffec-

tive assistance by failing to investigate and present at the

penalty phase mitigating evidence regarding his schizo-

phrenia and its effects; and (4) the prosecutor violated

Pruitt’s right to due process by reciting a poem about the

death of a police officer and comparing Pruitt to notorious

murderers in the closing argument of the penalty phase of

trial, and appellate counsel was ineffective in failing to raise

this as an error on appeal. With regard to the second ineffec-

tive-assistance-of-counsel claim ((3) above), Pruitt challenges

only counsel’s presentation of evidence at the penalty phase

of trial; he is not asserting ineffectiveness in failing to seek a

determination of guilty but mentally ill or in otherwise pre-

senting mental health evidence at the guilt phase of trial.

We conclude that Pruitt has established that he is intel-

lectually disabled and categorically ineligible for the death

penalty and that trial counsel were ineffective in their inves-

tigation and presentation of evidence that Pruitt suffered

from schizophrenia. We therefore reverse the district court’s

judgment and remand for further proceedings not incon-

sistent with this opinion.

I. BACKGROUND

A. Underlying Crime

These facts are taken from the Indiana Supreme Court

decision affirming Pruitt’s conviction and sentence. Pruitt v.

State, 834 N.E.2d 90 (Ind. 2005) (Pruitt I), cert. denied, Pruitt v.

Indiana, 548 U.S. 910 (2006).

No. 13-1880 3

On June 14, 2001, Morgan County Deputy Sheriff Daniel

Starnes stopped Pruitt’s vehicle. Starnes obtained Pruitt’s

driver’s license and registration, called that information in,

and was told that a recent robbery report suggested Pruitt

might be in possession of stolen weapons. When Starnes ap-

proached Pruitt’s vehicle a second time, Pruitt emerged with

a handgun, and the two exchanged gunfire. Starnes was

struck by five shots. He was taken to the hospital and un-

derwent surgery. He later developed an infection and died.

The state ultimately charged Pruitt with murder, at-

tempted murder (Pruitt also shot Ryan Starnes, Deputy

Starnes’s son, who was accompanying his father as part of a

college internship), and related offenses. The state sought the

death penalty because Starnes was a law enforcement officer

killed in the line of duty.

B. State and Post-Conviction Proceedings

The trial court appointed attorneys William Van Der Pol,

Jr. and Douglas Garner to represent Pruitt. Before trial Pruitt

sought a determination of intellectual disability in a death

sentence case, requesting that the court order an evaluation

and dismiss the death penalty. The court ordered an evalua-

tion of Pruitt and appointed forensic psychologist Dr.

George W. Schmedlen, Ph.D., J.D., for that purpose.

The trial court conducted a week-long evidentiary hear-

ing at which Pruitt presented two expert witnesses, clinical

neuropsychologist Dr. Bryan A. Hudson, and clinical neuro-

psychologist and professor of psychology Dr. Charles J.

Golden, Ph.D., as well as non-expert testimony and other ev-

idence in an effort to establish his intellectual disability.

Pruitt’s experts testified that Pruitt is intellectually disabled

4 No. 13-1880

based on his IQ test scores and their assessment of his adap-

tive functioning. However, Dr. Schmedlen and the state’s

expert, psychologist Dr. Martin G. Groff, Ph.D., testified that

Pruitt was not intellectually disabled. The trial court found

that Pruitt “does not have significantly subaverage intellec-

tual functioning,” Pruitt I, 834 N.E.2d at 103, noting that at

most, “Pruitt’s functioning would be considered border-

line—not [intellectually disabled],” id. at 104. The trial court

also found “that the defense has failed to prove by clear and

convincing evidence that Mr. Pruitt has substantial impair-

ment of adaptive behavior.” Id. at 108. The trial court was

“particularly impressed with Mr. Pruitt’s ability to function

as a carpenter, obtain a commercial driver’s license, perform

duties of an over the road truck driver and fill out applica-

tions for employment.” Id. at 108–09. Therefore, the court

denied Pruitt’s motion to dismiss the death penalty.

At the guilt phase of the trial, the jury convicted Pruitt of

murder, attempted murder, and related offenses. At the

penalty phase, the defense presented evidence of Pruitt’s

background and intellectual disability. Drs. Hudson and

Golden again testified that Pruitt is intellectually disabled,

and Dr. Golden also testified about Pruitt’s mental illness.

The jury found that Deputy Starnes was a law enforcement

officer acting in the course of his duty at the time he was

murdered and that this aggravating circumstance out-

weighed any and all mitigating circumstances, and recom-

mended a sentence of death. In imposing sentence for the

convictions other than murder, the trial judge considered the

“possible mitigating factors as presented in the[] proceed-

ings” and found that none of them “constitute a mitigating

circumstance.” Trial Tr. 6455. The judge also concluded that

“Pruitt does not have a mental condition which would justi-

No. 13-1880 5

fy his actions or in any way mitigate for purposes of sentenc-

ing” and that the “aggravating factors outweigh any possi-

ble mitigating factors.” Id. at 6455–56. The judge sentenced

Pruitt to a total of 115 years on the other offenses. In impos-

ing sentence for murder, the judge found that the jury de-

termined that the State had proven beyond a reasonable

doubt the aggravating circumstance that Starnes was a law

enforcement officer acting in the course of his duty, that this

aggravating circumstance outweighed any and all mitigating

circumstances, and that a sentence of death should be im-

posed. The judge accordingly sentenced Pruitt to death.

Pruitt appealed his murder conviction and sentence di-

rectly to the Indiana Supreme Court; the court affirmed.

Pruitt I, 834 N.E.2d 90. Although that court concluded that

the trial court’s standard for assessing adaptive behavior

was too restrictive and that the record did not support the

trial court’s conclusion with respect to adaptive behavior, id.

at 109-110, it decided that the evidence supported the trial

court’s conclusion with respect to the intellectual function-

ing. The court explained:

While some of Pruitt’s scores suggest significantly

subaverage intellectual functioning, others do not. In

addition to this data, the trial court found that Pruitt

was able to fill out applications for employment and

to have the capacity, if not the will at all times, to

support himself. In light of the inconsistent IQ scores

and the other evidence cited by the trial court, the tri-

al court’s finding that Pruitt did not meet the statuto-

ry test is consistent with this record.

Id. at 106. The Indiana Supreme Court therefore upheld the

trial court’s conclusion that Pruitt was not intellectually dis-

6 No. 13-1880

abled. Id. at 106, 110. Justice Rucker dissented, concluding

that Pruitt had shown that he is intellectually disabled and

therefore a death sentence was unconstitutional and statuto-

rily impermissible. Id. at 123–26.

Next, Pruitt petitioned for post-conviction relief. At the

hearing on his petition, he presented testimony from newly

retained experts as well as from psychologist Dr. Dennis

Olvera, Ph.D., who had been retained by trial counsel to

conduct IQ testing of Pruitt but had not testified at trial.

Pruitt also presented evidence from his trial attorneys and

appellate attorney, family, and educators. The post-

conviction court denied Pruitt’s petition and motion to cor-

rect errors, finding as to the intellectual disability claim that

Pruitt’s “additional evidence … presented at the post-

conviction hearing was largely cumulative of the evidence

developed before and [during] trial and is entirely unper-

suasive.” PCR App. 688. (The court also found the claim

barred by res judicata. Id.)

The Indiana Supreme Court affirmed. State v. Pruitt, 903

N.E.2d 899 (Ind. 2009) (Pruitt II), reh’g denied, 907 N.E.2d 973

(Ind. 2009). The court found that “Pruitt has offered no evi-

dence undermining the correctness of the trial court’s and

this Court’s findings that he is not [intellectually disabled]”

and therefore concluded that his death sentence was not un-

constitutional under Atkins v. Virginia, 536 U.S. 304 (2002).

Pruitt II, 903 N.E.2d at 938 (quotation omitted). Justice Ruck-

er again dissented on the basis of Pruitt’s intellectual disabil-

ity. Id. at 940.

Pruitt petitioned for writ of habeas corpus under § 2254

in the United States District Court for the Northern District

of Indiana. The district court heard oral argument and then

No. 13-1880 7

denied the petition. Pruitt v. Wilson, No. 3:09cv380RLM, 2012

WL 4513961 (N.D. Ind. Oct. 2, 2012). Pruitt moved the court

to alter or amend its decision; the motion was denied. The

district court granted Pruitt a certificate of appealability.

C. Pretrial and Guilt-Phase Evidence

1. Intellectual Functioning

Before he turned 18, Pruitt took two Lorge-Thorndike

group-administered IQ tests. In March 1973, he scored a ver-

bal IQ of 64, and a non-verbal IQ of 65. In December 1976, he

scored a verbal IQ of 64 and a non-verbal IQ of 63. These

scores fall within the intellectually disabled range. However,

the state’s expert Dr. Groff testified that he would give little

weight to these scores; Dr. Hudson agreed that individually

administered tests are better indicators of an individual’s

ability. Nonetheless, the Lorge-Thorndike test is designed to

measure general intelligence, and Dr. Hudson explained that

the research demonstrates an “extremely high correlation”

between the Lorge-Thorndike and Weschler series of intelli-

gence tests. Both Drs. Groff and Golden agreed that since

Pruitt obtained essentially the same scores on the two tests,

he gave his best effort. Dr. Golden indicated that these scores

suggested that Pruitt’s IQ was “fairly stable” at that point in

time. Trial Tr. 1550. Both Drs. Hudson and Golden stated

that the IQ scores obtained as a child would most accurately

measure Pruitt’s intelligence before age 18. Id. at 1355–56

(Hudson stating that “IQ is meant to be diagnosed in child-

hood.”); id. at 1551 (Golden stating that in assessing IQ,

scores obtained before age 18 are “absolutely” more im-

portant than scores obtained after that age).

8 No. 13-1880

Pruitt took two academic achievement tests while in

school. In March of 1975, he took the Otis-Lennon School

Ability Test and scored 81. Dr. Schmedlen testified that this

score was inconsistent with intellectual disability. However,

Dr. Schmedlen was unaware that the Otis-Lennon was

known as the “Otis-Lennon School Ability Test” and that the

Otis-Lennon score was not given as an IQ score. He also

acknowledged that the Otis-Lennon test was not of the same

quality as a Weschler or Stanford-Binet intelligence test. Dr.

Hudson stated that the Otis-Lennon test was an achievement

test normed by grade rather than age. He explained that

Pruitt’s score was compared to the scores of children two

years younger than Pruitt because he had been held back in

school twice by the time he took the test. Dr. Golden similar-

ly testified that an academic achievement test is not an ap-

propriate substitute for an IQ test: although an achievement

test “roughly correlate[s] somewhat with IQ, it is not an IQ

test at all.” Trial Tr. 1546. He stated that the Otis-Lennon

score overestimated Pruitt’s IQ score by 15 to 25 points be-

cause the test was an achievement test comparing scores

among students in the same grade. See id. at 1518–19. In

April 1975, Pruitt took the Iowa Basic Test, another academic

achievement test. His score on that test was consistent with

his Otis-Lennon score; but again, his scores were normed by

grade rather than age. Had his achievement test scores been

adjusted for his age, Dr. Golden testified that they would fall

within the range for intellectual disability.

At the age of 19 while incarcerated on another matter,

Pruitt took a Revised Beta intelligence test and scored 93.

The test is group-administered in fifteen minutes. Trial Tr.

672. Dr. Schmedlen testified that such a score was incon-

sistent with having significantly subaverage intellectual

No. 13-1880 9

functioning; instead, the score fell within the average intel-

lectual functioning range. However, Dr. Schmedlen

acknowledged that individually administered tests are con-

sidered more reliable than group administered tests. Trial

Tr. 659–60. While Dr. Schmedlen testified that he believed

the test was reliable, he did not actually determine whether

the Revised Beta was a reliable test. Id. at 672. And he

acknowledged that the test was not as reliable as the Wesch-

ler series or Stanford-Binet intelligence tests. Furthermore,

Drs. Hudson and Golden testified that the Revised Beta is a

non-verbal test developed by the Army in World War II for

testing non-English speaking persons. It was normed on

prisoners, not on the average population. Thus, Dr. Golden

stated that the Revised Beta “is not an accurate test, it is not

well regarded in the field, and it is not well accepted in the

field as a general test of intelligence.” Id. at 1541. According

to Dr. Golden, a Revised Beta score “severely overestimates”

an individual’s IQ; if a Revised Beta is the only score availa-

ble in a forensic file, Dr. Golden subtracts 20 to 30 points

from the score to obtain what he would consider to reflect

actual intellectual functioning. Id. at 1543.

In April 2002, Pruitt obtained a full-scale IQ score of 76

on the Weschler Adult Intelligence Scale, Third Edition

(WAIS) administered by his own expert Dr. Olvera. Trial

counsel had sought Dr. Olvera’s evaluation because they in-

tended to pursue a determination that Pruitt is intellectually

disabled and not eligible for a death sentence. The WAIS has

a standard error of measurement (SEM) of five points that

placed Pruitt’s score within the range of 71 to 81. However,

Dr. Olvera advised trial counsel that Pruitt’s full-scale IQ

score of 76 did not meet the intelligence functioning prong of

intellectual disability. Dr. Schmedlen stated that this score

10 No. 13-1880

placed Pruitt in the “borderline range.” Dr. Hudson said

there was a one-point error in scoring the test and that Pruitt

was taking an antipsychotic medication (Trilafon) that Hud-

son believed enhanced Pruitt’s abilities. Dr. Golden agreed,

stating that if a person with a psychiatric disorder is given

antipsychotic medication, his IQ scores “may go up signifi-

cantly.” Trial Tr. 1500. In addition, the medical literature

supports the conclusion that an antipsychotic drug could

enhance Pruitt’s performance on an IQ test because of im-

provements in attention and focusing. The trial court found

that the 76 on the WAIS placed Pruitt above the intellectual-

ly disabled level of intellectual functioning. The Indiana Su-

preme Court noted that the trial court had found insufficient

evidence to show what, if any, effect the Trilafon may have

had on Pruitt’s performance on the test. Pruitt I, 834 N.E.2d

at 105.

In February 2003, Dr. Golden administered a Stanford-

Binet (4th ed.) individually administered IQ test to Pruitt; he

obtained a full-scale IQ score of 65. The test has an SEM of

six points, placing Pruitt’s IQ score within the 59-71 range.

Subaverage intelligence is measured by the Stanford-Binet as

a score below 69. Dr. Schmedlen testified that Pruitt’s score

indicated that he is intellectually disabled. Trial Tr. 668. Dr.

Golden testified that alternative scoring methods for the test

could have produced scores of 67 or 69. Both Drs. Golden

and Hudson stated that the Stanford-Binet was more sensi-

tive and accurate than the WAIS in assessing individuals

with very high or very low IQs.

In July 2003, Dr. Schmedlen administered the WAIS to

Pruitt; Pruitt scored a full-scale IQ of 52. That score, Dr.

Schmedlen testified, was not an accurate measure of Pruitt’s

No. 13-1880 11

intellectual functioning because he did not believe that Pruitt

gave his full effort on the test. Drs. Golden and Hudson

agreed that the score likely underestimated Pruitt’s IQ be-

cause of malingering. They also noted that Pruitt was no

longer being administered antipsychotic medication and had

been in solitary confinement just before taking the test, both

of which could have increased the likelihood of psychotic

symptoms that would lower his performance on the test. As

support, they indicated that Pruitt’s scores varied from the

prior WAIS on subtests that were particularly sensitive to

anxiety, depression, or psychosis, but showed little variance

on those subtests that were more stable.

Dr. Schmedlen testified at the pretrial hearing that Pruitt

was not intellectually disabled, relying on IQ tests, achieve-

ment tests, an assessment of his adaptive functioning, and

Pruitt’s ability to hold jobs and perform other tasks. Dr.

Schmedlen believed that at most Pruitt would be in the bor-

derline range of intellectual functioning. He took into ac-

count Pruitt’s 93 on the Revised Beta, a score that Dr.

Schmedlen thought was inconsistent with intellectual disa-

bility. He also thought that Pruitt’s 81 on the Otis-Lennon

test should be interpreted as an IQ score.

Dr. Groff also testified at the pre-trial hearing that Pruitt

was not intellectually disabled. However, Dr. Groff did not

meet or test Pruitt; nor did he interview anyone about Pruitt.

Based only on his review of records in the case, Dr. Groff

stated that his impression was that Pruitt was “probably

within the borderline intellectual functioning range.” Tr.

1463. Yet Dr. Groff conceded that he could not address

Pruitt’s intellectual functioning “with certainty.” Id.

12 No. 13-1880

2. Adaptive Functioning

The American Association on Mental Retardation

(AAMR) (now the American Association on Intellectual and

Developmental Disabilities) defined a “substantial impair-

ment in adaptive functioning” as limitations in two or more

of the adaptive skill areas: communication, self-care, home

living, social, community use, self-direction, health and safe-

ty, functional academics, leisure, and work. Dr. Schmedlen

administered an objective test of adaptive functioning and

concluded that Pruitt met the adaptive behavior prong un-

der the AAMR definition. Specifically, Dr. Schmedlen stated

that Pruitt qualified under two adaptive skill areas: work

and self-direction. According to Dr. Golden, because the test

was normed against individuals with intellectual disability,

it made Pruitt appear higher functioning then he actually

was. Dr. Hudson testified based on his review of Pruitt’s so-

cial, educational, and work history as well as two clinical

evaluations that Pruitt showed significant deficits in six

adaptive skills areas: communication, home living, social

skills, functional academics, health and safety, and work.

In addition to the expert testimony, Pruitt presented lay

testimony that supported the experts’ opinions as to his

adaptive functioning. Pruitt was slow to develop as a child

in terms of such abilities as walking, talking, and potty-

training. He had difficulty following instructions, playing

board games and participating in sports because he had

trouble understanding the rules. Pruitt encountered difficul-

ty in school beginning in the second grade. He was held

back twice in the first three grades of elementary school; he

was placed in special education classes; and he was socially

promoted. He dropped out of school at the age of 16 while in

No. 13-1880 13

the eighth grade. He was described as mentally slow. Other

children made fun of him, calling him retarded and dumb,

but he did not seem to understand that he was being teased.

As an adult, he was unable to live on his own; his parents

and family members took care of him. For example, they

took care of his money and made doctor and dental ap-

pointments for him.

The evidence established that Pruitt has held many jobs,

but none of them required high intellectual functioning. In

the 1980s, he worked at a fast food restaurant, a truck stop,

and in construction. In 1990, Pruitt received a union carpen-

ter’s card; he was a member of the union for almost eight

years. During the 1990s, he worked briefly as a carpenter's

pre-apprentice for Carlino Construction and he worked a

few years as a long-distance truck driver. Pruitt also worked

for several different construction companies. His father got

him a job in construction, but he was hired only because the

employer considered his father a valued employee. Pruitt

worked primarily in demolition and clean-up work. He had

obtained a journeyman’s card but he did not go through an

apprenticeship program. The employer, Pete Carlino, testi-

fied that Pruitt “really didn’t have carpentry skills,” did not

learn carpentry skills, and needed to “have his dad right

there … to tell him what to do continually.” Trial Tr. at 951.

Pruitt did not do a good job. When Pruitt’s father retired,

Pruitt was fired because he was unable to do basic work

without constant supervision, and he could not communi-

cate well with other workers.

As noted, Pruitt also worked as a truck driver. In order to

do so, he obtained a commercial driver’s license with several

endorsements that required him to score at least an 80% on

14 No. 13-1880

several written tests. He was discharged from his first truck-

ing job after he left one of the company’s trucks on the scales

at a weigh station and walked home. Pruitt’s employment at

another trucking job was terminated when he was caught

selling a load of copper wire to a scrap dealer rather than de-

livering it to the intended destination. While working as a

truck driver on another occasion, Pruitt drove his semi-truck

to California and visited his cousin. He parked the semi in

the middle of the street. When his cousin told Pruitt he could

not park there because he was blocking the street, Pruitt re-

sponded that there were no signs saying that he could not

park there. Pruitt also complained that his vehicle was a

piece of junk, but it was brand new; and according to his

cousin, an experienced truck driver who had ridden in the

vehicle, there was nothing wrong with it.

D. Penalty Phase Evidence

The guilt-phase evidence was incorporated for the jury’s

consideration at the penalty phase. The state’s only witness

was the former Morgan County Sheriff who testified as to

Deputy Starnes’ duties as a warrant officer.

At the penalty phase, Pruitt’s counsel presented the ex-

pert testimony of Dr. Golden, who testified about Pruitt’s

intellectual disability and neuropsychological problems. Dr.

Golden had interviewed Pruitt only once, when he adminis-

tered his intellectual disability testing. Counsel asked Dr.

Golden to go through Pruitt’s prison records and discuss

Pruitt’s prior diagnoses. Dr. Golden stated that in 1996 while

Pruitt was incarcerated for another crime, the federal Bureau

of Prisons (BOP) had diagnosed him with “schizotypal per-

sonality disorder . . . an Axis II mental illness.” Trial Tr.

6042–43. Dr. Golden testified that “psychotic episodes

No. 13-1880 15

should be the exception rather than the rule” for persons suf-

fering from schizotypal personality disorder, and that if such

episodes “were the main symptoms, then you would be di-

agnosing him as schizophrenic or something similar to that,”

id. at 6045–46.

Dr. Golden further testified that in August 2001, about

two months after Pruitt was arrested for killing Officer

Starnes, an Indiana Department of Corrections (DOC) psy-

chiatrist diagnosed Pruitt as suffering from “schizophrenia,

chronic undifferentiated type compensated residual.” Trial

Tr. 6053, 6221–22 (explaining that a psychologist worked on

Pruitt’s case but a psychiatrist made the actual diagnosis).

Dr. Golden said that the symptomatology for that diagnosis

were “actually similar to what the other psychologist was

saying when he diagnosed [Pruitt] as schizotypal.” Id. at

6054. Dr. Golden explained that this diagnosis means that

the provider

thinks that at one time that [Pruitt] was actually

schizophrenic . . . but that right now most of those

serious symptoms are not showing and . . . [Pruitt

is] somewhere now in between a personality dis-

order and the Axis I schizophrenia.

He [is] not suggesting [Pruitt is] actively schiz-

ophrenic, but he is expressing his belief that

[Pruitt] is capable of easily becoming schizophren-

ic at some time in the future.

Id. at 6054–55. Dr. Golden said that Pruitt was prescribed

Trilafon, an antipsychotic, explaining that “[t]hey were ob-

viously very concerned of his ability to become psychotic.”

Id. at 6056. According to Dr. Golden, the DOC psychiatrist

16 No. 13-1880

who diagnosed Pruitt did a “detailed evaluation and screen-

ing,” seemed to have “check[ed] out [Pruitt’s] past,” id. at

6223, and must have been “pretty certain” since he pre-

scribed medication for schizophrenia.

Dr. Golden concluded that Pruitt’s mental illness was “in

the schizophrenia spectrum of disorders.” Trial Tr. 6057. He

said that one “can have psychotic episodes if you’re schizoid

or schizotypal.” Id. He opined based on Pruitt’s history that

his illness was “not severe enough to be called schizophren-

ic, so I go with the schizotypal or the schizoid diagnosis.” Id.

Dr. Golden testified about the symptoms of schizoid person-

ality disorder and its debilitating effects, stating that Axis II

personality disorders “can decompensate into a psychosis,

into acute psychosis, where the effects are identical” as those

of an Axis I mental illness. Id. at 6062. According to Dr.

Golden, individuals with such a personality disorder will

“start kind of going off the deep end,” and when they do,

you have to intervene “before something bad happens to

them or to somebody else.” Id. at 6063. Dr. Golden said

Pruitt had decompensated for at least six months before the

crime, becoming increasingly paranoid: “They cross over

that line between adequate reality contact and inadequate

reality contact.” Id. at 6076–77. Dr. Golden stated that “clear-

ly … [Pruitt], for at least six months if not longer, had been

decompensating” and given “the degree of paranoia that he

was developing … something bad was eventually going to

happen ….” Id. at 6093. The jury asked Dr. Golden whether

he had any firsthand knowledge of Pruitt’s thought process-

es, including his thinking while committing the crime. Id. at

6247–48. Dr. Golden responded that they “talked a little bit

about that” and Pruitt “said to me basically what’s already

in the record.” Id. at 6248–49.

No. 13-1880 17

E. State Post-Conviction Evidence

1. Intellectual Disability

In his state post-conviction proceeding, Pruitt presented

evidence from two psychologists with expertise in intellec-

tual disability, Dr. Denis Keyes and Dr. Dennis Olvera. Dr.

Keyes, who had thirty-two years’ experience evaluating and

working with the intellectually disabled, reviewed all of the

testing since Pruitt’s childhood and conducted his own intel-

ligence testing of Pruitt. In 2006 Dr. Keyes administered the

Stanford-Binet (5th ed.) intelligence test; Pruitt obtained a

full-scale IQ score of 65, representing a score between 61 and

69, which Dr. Keyes said was within the range of intellectual

disability. He said that the testing indicated that Pruitt’s in-

telligence was “significantly subaverage.” However, Dr.

Keyes conceded that it was safe to assume that Pruitt was

aware while taking this test of the potential ramifications of

his score.

In Dr. Keyes’s opinion, one IQ score above 75 does not

necessarily mean that a person is not intellectually disabled.

Dr. Keyes emphasized the importance of clinical judgment

in assessing intellectual disability, stating that persons with

intellectual disability try to hide it because of the stigma as-

sociated with it. He conducted a test of Pruitt for malinger-

ing; the result suggested that Pruitt was not malingering. Dr.

Keyes also said that there were signs to look for when test-

ing to determine whether an individual might be malinger-

ing, and none of those signs appeared with Pruitt. Address-

ing Pruitt’s Revised Beta score of 93, Dr. Keyes explained

“that test is not considered a valid intelligence indicator by

any professional psychologist who knows the literature

and/or the test.” PCR App. 773.

18 No. 13-1880

Dr. Keyes administered three standardized tests to assess

Pruitt’s adaptive functioning. He also interviewed Pruitt’s

parents, sisters, two of his special education teachers, and

family friends, and reviewed records as well as the trial tes-

timony. Dr. Keyes concluded that Pruitt’s adaptive function-

ing was significantly impaired in virtually all skill areas and

estimated that his overall adaptive functioning was at about

the level of a child between six and eight years of age. Id. at

774. Based on his examination of Pruitt, his review of Pruitt’s

school records including test scores, and his own testing, Dr.

Keyes opined that Pruitt is intellectually disabled and had

been since birth or at least early childhood.

Dr. Olvera, who had forty years’ experience working

with the intellectually disabled and extensive experience

working with the mentally ill, testified that he was contacted

by Pruitt’s trial counsel in 2002 and administered the WAIS

to Pruitt. At that time, based on Pruitt’s full-scale IQ score of

76, Dr. Olvera concluded that Pruitt did not meet the intel-

lectual disability standard. However, Dr. Olvera had not

been provided with Pruitt’s other test scores. Dr. Olvera

stated that had he known of the other lower IQ scores, he

would have wanted to know why his results were higher.

He explained that Pruitt’s score of 76 had to be viewed in

context with his other test scores. Dr. Olvera also said that

when he administered the WAIS in 2002, Pruitt was taking

Trilafon, an antipsychotic drug. Olvera opined that “[t]here

is a good possibility that the fact that [Pruitt] was medicated

when I tested him produced the scoring pattern that was

considerably higher than would have been produced had he

not been medicated.” PCR Tr. 41. Dr. Olvera also testified

that Pruitt’s score on the WAIS should be interpreted in light

of the “Flynn Effect,” which accounts for gains in IQ scores

No. 13-1880 19

over time. 1 If taken into account, Pruitt’s score was reduced

to approximately 74.

Dr. Olvera also testified that the Revised Beta is not an

acceptable measure of intelligence in forensic cases because

it is not a multifactorial intelligence test. He agreed that the

Otis-Lennon is not an acceptable measure of intelligence ei-

ther, explaining because it is a group-administered test. Ac-

cording to Dr. Olvera, the Wechsler series of intelligence

tests and the Stanford-Binet test are considered the gold

standard in forensic cases. Dr. Olvera conducted two malin-

gering screens; both indicated that Pruitt did not malinger.

Dr. Olvera opined that Pruitt met the intellectually disabled

criteria and that there was a reasonable clinical certainty that

he was functioning in that range at the time of the crimes.

Pruitt presented the affidavit of Mary Mann, Director of

Special Education Services for the school district he had at-

tended as a child. The affidavit established that Pruitt was

returned to special education classes in the eighth grade and

that this was the last grade he attended. He dropped out of

school at the age of 16.

Dr. Mary Jo Dare, an associate professor teaching courses

on special education, testified at the post-conviction hearing.

She had experience teaching children with cognitive disabili-

ties since 1967, and she was the former Director of Special

Education for Indianapolis Public Schools. Dr. Dare re-

1 Dr. Olvera explained that the gradual increase of IQ scores over long

periods of time, known as the “Flynn Effect,” causes IQ test norms to

become obsolete. To counter this effect, IQ tests are periodically “re-

normed” (made harder) by resetting the mean score to 100 to account

for the gains in IQ scores. The WAIS was normed in 1995 and pub-

lished in 1997. Pruitt took the test in 2002.

20 No. 13-1880

viewed Pruitt’s school records related to his special educa-

tion and resource class placements. She explained that when

Pruitt was in school, it was not uncommon to place children

with special education needs in general education classes,

without adequate support, and with very little understand-

ing on the part of teachers as to how to teach such students.

She saw no rational explanation for withdrawing Pruitt from

special education classes and testified that the records

showed that he was socially promoted. Dr. Dare concluded

that Pruitt’s “school records overall, both his IQ testing as

well as his functioning in society and in school, they clearly

point to a student who qualifies under the special education

category of mild [intellectually disabled].” PCR Tr. 329.

Pruitt also presented expert testimony from Marie

Dausch, the long-time director of an organization that pro-

vides programs and services for adults with developmental

disabilities. Dausch explained that individuals with mild in-

tellectual disability are able to find employment in a variety

of fields and are able to obtain a driver’s license, even a

commercial driver’s license.

2. Mental Health

At the post-conviction hearing, Dr. Olvera testified that

when he conducted his clinical interview of Pruitt, he ob-

served signs of possible psychosis and learned that Pruitt

was taking anti-psychotropic medication. Dr. Hudson also

had noticed during his pre-trial testing of Pruitt that some of

Pruitt’s responses to questioning were not “clearly lucid.”

Trial Tr. 1215. Prior to the start of trial, Dr. Olvera had rec-

ommended that trial counsel contact an expert “in dealing

with psychosis, such as schizophrenia.” PCR Tr. 37. But trial

counsel did not do so.

No. 13-1880 21

Also at the post-conviction hearing, Pruitt presented tes-

timony from three other experts regarding his mental health:

forensic psychiatrist Dr. Philip Coons, clinical and forensic

psychiatrist Dr. James Ballenger, and forensic clinical psy-

chologist and neuropsychologist Dr. David R. Price. Dr.

Coons had over thirty years’ experience evaluating the men-

tally disturbed. Based upon an evaluation of Pruitt, inter-

views with his family members, the reports written by

Pruitt’s other post-conviction experts, and a review of

Pruitt’s social history, Dr. Coons opined that Pruitt suffered

from Axis I paranoid schizophrenia, which is characterized

by delusions, hallucinations, and thought disorder. Dr.

Coons testified that at the time of the crime, Pruitt was suf-

fering from paranoid schizophrenia and intellectual disabil-

ity, he was under the influence of extreme mental or emo-

tional distress, and his capacity to conform his conduct to

the law was substantially impaired because of mental illness.

Dr. Coons stated that prior to developing schizophrenia,

Pruitt had a personality disorder, described as a thought

disorder without the psychotic symptoms of hallucinations

and delusions. According to Dr. Coons, “all of the symptoms

[of] schizotypal personality disorder are included under

schizophrenia.” PCR Tr. 458. Dr. Coons found no signs of

malingering, although he performed no tests to guard

against malingering.

Dr. Ballenger had approximately thirty-five years’ expe-

rience working with the mentally ill and lectured medical

students on schizophrenia. He interviewed Pruitt twice.

Based on information from Pruitt, his family members, and

prison records, Dr. Ballenger concluded that Pruitt suffered

from paranoid schizophrenia. Dr. Ballenger also opined that

Pruitt has borderline intellectual disability. According to Dr.

22 No. 13-1880

Ballenger, his examination showed that Pruitt met “every

single one of the diagnostic criteria” for schizophrenia, in-

cluding delusions and hallucinations, PCR Tr. 552–56, and

had “a very positive family history” for schizophrenia. Id. at

563. Dr. Ballenger said that Pruitt had two delusional sys-

tems, one involving super beings from outer space and the

other involving a giant conspiracy of police and judges

somehow getting lots of money by arresting people. Id. at

553–54. Although there are relatively effective tests for ma-

lingering, Dr. Ballenger did not test Pruitt for malingering.

Nonetheless, Dr. Ballenger found no evidence of malinger-

ing in his examinations of Pruitt. Dr. Ballenger said that

Pruitt “works very hard to hide that he’s schizophrenic, he

works very hard to hide that he has [intellectual disability].”

Id. at 567.

Dr. Ballenger stated that the diagnosis of “schizotypal

personality disorder” is “either the first two, three steps of

schizophrenia, or is actually the beginning of schizophrenia.

Schizotypal personality is just quarter-strength schizophre-

nia.” Id. at 587–88. He testified that Dr. Golden’s diagnosis of

“a decompensated psychotic state of somebody with a

schizotypal personality” was “only a hair different from

what I would have said.” Id. at 589. Dr. Ballenger stated that

Dr. Golden described the same behaviors that he and Drs.

Coons and Price used to diagnosis Pruitt with Axis I schizo-

phrenia; Dr. Golden just used “slightly” different terminolo-

gy. Id.

According to Dr. Ballenger, in the months before the

crime Pruitt became increasingly paranoid, to the point

where he was convinced his mother was trying to poison

him. Pruitt told Dr. Ballenger that at the time of the shooting,

No. 13-1880 23

he wanted guns because “I’m afraid of people and they

make me feel safer.” Id. at 597. Pruitt believed the police

“were watching him all the time” and he was “ready to go to

Montana to fully withdraw.” Id. Dr. Ballenger testified that it

was “grandiose psychotic logic” to “point a gun at Officer

Starnes, and expect the officer to give his gun up and walk

away.” Id. at 598. Dr. Ballenger said that Pruitt believed the

aliens “planned the whole thing” and “were controlling both

his and Officer Starnes’ mind,” and that “it couldn’t be

stopped.” Id. Pruitt’s schizophrenia, Dr. Ballenger opined,

“substantially interferes with his thinking, feeling, and ac-

tion.” Id. at 596. Dr. Ballenger stated that Pruitt was under

the influence of an extreme mental or emotional disturbance

at the time of Deputy Starnes’ murder, id. at 596–99, and as a

result of mental disease, his capacity to appreciate the crimi-

nality of his actions or to conform his conduct to the re-

quirements of law was substantially impaired, id. at 599.

Dr. Price diagnosed Pruitt with schizophrenia, schizoty-

pal personality disorder, and mild intellectual disability. He

testified that Pruitt “showed odd signs, … magical thought,

[and] paranoia” that progressed into the active phase with

delusions and hallucinations. PCR Tr. 702. Dr. Price thought

that Pruitt “had a schizotypal personality disorder that de-

veloped into schizophrenia.” Id. at 705. When asked whether

his diagnosis of schizotypal personality disorder premorbid

meant that Dr. Golden was right, Dr. Price answered, “Very

often people that develop schizophrenia have a premorbid

and actually coexisting schizotypal personality disorder.” Id.

Pruitt was not malingering his mental illness or intellec-

tual disability, Dr. Price opined. He explained that because

of his intellectual ability, Pruitt would not have the sophisti-

24 No. 13-1880

cation to portray schizophrenia during their interaction. Dr.

Price said that Pruitt’s school history, work history, and IQ

test results supported his conclusion. Dr. Price believed that

Pruitt was in an active phase of schizophrenia at the time of

the crime and that “he had a significant psychiatric disorder

that significantly impaired his ability to conform his behav-

ior to the requirements of the law.” PCR App. 826. Dr. Price

testified that Pruitt was under the influence of an extreme

emotional or mental disturbance at the time of the crime and

that his capacity to appreciate the criminality of his conduct

or conform his conduct to the requirements of the law was

substantially impaired because of mental disease or defect.

PCR Tr. 708–09.

Letitia Haywood, a clinical therapist and licensed social

worker, investigated and prepared an extensive social histo-

ry of Pruitt. The parties stipulated to the admission of her

social history for the purpose of showing what could have

been prepared at the time of trial. Haywood’s social history

concluded that Pruitt has mental disabilities, including delu-

sional, disorganized, and disturbed thought processes.

3. Defense Theories

At the post-conviction hearing, trial counsel Van Der Pol,

who was primarily responsible for the mitigation part of the

case, testified about the defense theory at the penalty phase.

Van Der Pol described the theory as “number one” that

Pruitt is intellectually disabled, which would entitle him “to

great mitigating weight,” PCR Tr. 214–15; “[n]umber two”

that Pruitt “was suffering a serious mental illness at or

around the time of the crime,” id. at 215; and “[f]inally” that

Pruitt “had serious brain damage, brain injury, [or] brain

dysfunction.” Id. Based on all these things, counsel attempt-

No. 13-1880 25

ed to prove that Pruitt did not deserve the death penalty. Id.

at 215–16. Trial counsel Garner testified at the post-

conviction hearing that the defense theory was that because

of his intellectual disability, Pruitt should not be held re-

sponsible to the same extent as an individual with normal

intelligence. Id. at 513.

Trial counsel Van Der Pol testified that Dr. Schmedlen

had reported seeing symptomology consistent with schizo-

phrenia, but then for unknown reasons, Dr. Schmedlen de-

cided that Pruitt did not have schizophrenia. PCR Tr. 180.

Counsel also said that in 2003 Dr. Golden concluded that no

additional neuropsychological testing was necessary or ap-

propriate. Id. at 196. Yet counsel also recalled that Dr. Gold-

en had testified he did not have enough information to make

a diagnosis of schizophrenia. Id. at 200. Counsel did not con-

sider asking Dr. Golden if he believed Pruitt met the criteria

for the statutory mitigating factors related to mental illness.

Dr. Golden, an expert in intellectual disability, had no expe-

rience in the assessment or treatment of individuals with

psychotic disorders.

4. Post-Conviction Rulings

After considering Pruitt’s new evidence, the post-

conviction court reaffirmed its prior rulings on the intellec-

tually disability issue, concluding that Pruitt is not intellec-

tually disabled. PCR App. 682. The court found that “Pruitt’s

post-conviction [mental health] evidence is substantially

cumulative of the testimony and opinion presented at trial.”

Id. at 665. Discussing the evidence relating to mental illness,

the court noted that a DOC psychologist had “diagnosed

Pruitt as suffering from schizophrenia, chronic undifferenti-

ated residual uncompensated.” Id. at 671. The court also not-

26 No. 13-1880

ed that Dr. Golden “explained that this diagnosis means the

psychologist believed at one time Pruitt was schizophrenic

but that at the time of diagnosis he was not actively schizo-

phrenic” and that “Dr. Golden had concluded that a diagno-

sis of schizophrenia was inappropriate for Pruitt, and that he

actually suffered from either schizoid or schizotypal person-

ality disorder.” Id. The court referred to the post-conviction

hearing testimony from Drs. Coons, Ballenger, and Price that

Pruitt suffered from schizophrenia. Id. at 673. Based on the

evidence presented at trial and post-conviction, the court

concluded “that trial counsel were not ineffective in select-

ing experts and preparing mental health evidence for use in

the penalty phase or sentencing.” Id. at 674. The court did

“not find that the quality of evidence presented at post-

conviction was more credible or persuasive than that pre-

sented at trial”; therefore, it found that Pruitt did not show a

“reasonable probability of a different sentence.” Id.

Pruitt appealed. The Indiana Supreme Court concluded

that “’Pruitt has offered no evidence undermining the cor-

rectness’ of the trial court’s and this Court’s findings that he

is not [intellectually disabled].” Pruitt II, 903 N.E.2d at 938

(quoting PCR App. 689). Justice Rucker again dissented. Id.

at 939. The court stated that it had “addressed Pruitt’s claims

that he presented previously undiscovered evidence of [in-

tellectual disability] at the PCR hearing and found the evi-

dence to be cumulative” of that presented at trial. Id. at 938.

The Indiana Supreme Court affirmed the finding that trial

counsel were not deficient in their presentation of evidence

of Pruitt’s mental illness. Pruitt II, 903 N.E.2d at 919, 921. The

court agreed with the post-conviction court that “trial coun-

sel presented evidence of a schizotypal personality disorder,

No. 13-1880 27

a diagnosis different more in degree of severity than of char-

acter, than the one advanced by experts” at the post-

conviction proceeding, and that a “different diagnosis does

not show that trial counsel were deficient.” Id. at 921 (inter-

nal quotation marks and citation omitted). Given trial coun-

sels’ testimony at the post-conviction hearing, the Indiana

Supreme Court made the determination that counsels’ “first

priority” was to show that Pruitt is intellectually disabled

and their “second priority” was to prove that he was suffer-

ing from a serious mental illness around the time of the

crime. See id. at 922. The court also found that “trial counsel

made a deliberate strategic decision to concentrate the jury’s

attention on Pruitt’s claim of [intellectual disability]” and

“this strategy might well have been undermined by greater

emphasis on the much weaker mental illness evidence.” Id.

The court determined that trial counsel were not ineffective

in selecting experts and preparing mental health evidence

for use at trial. Id. at 921.

II. ANALYSIS

Pruitt contends that his execution is barred by the Eighth

Amendment because the evidence establishes that he is intel-

lectually disabled. He argues that the state court’s contrary

decision is objectively unreasonable and based on a defini-

tion of intellectual disability that is an unreasonable applica-

tion of Atkins. Pruitt’s second claim is that trial counsel ren-

dered ineffective assistance by failing to investigate and pre-

sent evidence to support his claim of intellectual disability.

Third, Pruitt claims that trial counsel rendered ineffective

assistance by failing to investigate and present at the penalty

phase mitigating evidence regarding his schizophrenia, and

that the state court’s contrary conclusion is an unreasonable

28 No. 13-1880

application of Strickland v. Washington, 466 U.S. 668 (1984).

Finally, he argues that trial counsel rendered ineffective as-

sistance in failing to raise the claim that the prosecutor vio-

lated Pruitt’s Eighth Amendment and due process rights by

reciting a poem about the death of a police officer and com-

paring Pruitt to notorious murderers in the closing argument

of the penalty phase of trial, and that appellate counsel was

ineffective in failing to raise this as an error on appeal.

A. Standard of Review

A petitioner in state court custody is entitled to a writ of

habeas corpus “only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). Under the Antiterrorism and Ef-

fective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a

federal court may issue a writ of habeas corpus on a claim

that a state court has adjudicated on the merits only if the

state court’s decision “was contrary to, or involved an un-

reasonable application of, clearly established Federal law, as

determined by the Supreme Court,” or “was based on an un-

reasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(1)–(2); Cullen v. Pinholster, 563 U.S. —, 131 S. Ct.

1388, 1398 (2011). “AEDPA erects a formidable barrier to

federal habeas relief for prisoners whose claims have been

adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16

(2013). However, AEDPA deference applies “only to those

issues the state court explicitly addressed.” Makiel v. Butler,

782 F.3d 882, 896 (7th Cir. 2015) (quoting Quintana v. Chan-

dler, 723 F.3d 849, 853 (7th Cir. 2013)). “If no state court has

squarely addressed the merits of a habeas claim, we review

the claim de novo under the pre-AEDPA standard of 28

No. 13-1880 29

U.S.C. § 2243.” Ruhl v. Hardy, 743 F.3d 1083, 1091 (7th Cir.

2014). Thus, we “dispose of the matter as law and justice re-

quire.” Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012)

(quotation and citation omitted).

A state-court decision is contrary to clearly established

federal law “if it applies a rule that contradicts the governing

law set forth in [a Supreme Court case], or if it confronts a

set of facts that is materially indistinguishable from a deci-

sion of [the Supreme] Court but reaches a different result.”

Brown v. Payton, 544 U.S. 133, 141 (2005). A state-court deci-

sion unreasonably applies federal law if it “applies [the Su-

preme] Court’s precedents to the facts in an objectively un-

reasonable manner.” Id. An “unreasonable application of”

federal law means “objectively unreasonable, not merely

wrong; even ‘clear error’ will not suffice.” White v. Woodall,

134 S. Ct. 1697, 1702 (2014) (internal quotations and citation

omitted). “[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 disa-

greement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

When reviewing a state court decision under § 2254(d)(1),

“we presume that the court’s factual determinations are cor-

rect unless [the petitioner] rebuts the presumption by clear

and convincing evidence.” Newman v. Harrington, 726 F.3d

921, 928 (7th Cir. 2013) (quotation and citation omitted).

“A petitioner’s challenge to a state court decision based

on a factual determination under § 2254(d)(2) will not suc-

ceed unless the state court committed an ‘unreasonable er-

ror.’” Morgan v. Hardy, 662 F.3d 790, 798 (7th Cir. 2011). Un-

der § 2254(d)(2), a state court decision is “based on an unrea-

30 No. 13-1880

sonable determination of the facts if it rests upon fact-

finding that ignores the clear and convincing weight of the

evidence.” Newman, 726 F.3d at 928 (internal quotation

marks and citation omitted). “[E]ven if ‘[r]easonable minds

reviewing the record might disagree’ about the finding in

question, ‘on habeas review that does not suffice to super-

sede the trial court’s ... determination.’” Wood v. Allen, 558

U.S. 290, 301 (2010) (quoting Rice v. Collins, 546 U.S. 333, 341–

42 (2006)) (second brackets and ellipses in original).

We review de novo the district court’s denial of a § 2254

petition. Ford v. Wilson, 747 F.3d 944, 949 (7th Cir. 2014).

“[A]lthough we technically hear this appeal from the district

court,” id., we review the decision of the last state court to

address the merits of the petitioner’s claim, id. (quoting

McNary v. Lemke, 708 F.3d 905, 913 (7th Cir. 2013), reviewing

that decision with deference, Harris v. Hardy, 680 F.3d 942,

948 (7th Cir. 2012).

B. Intellectual Disability

Pruitt’s principal argument is that he is intellectually dis-

abled and therefore is categorically and constitutionally inel-

igible for the death penalty. He seeks to have his death sen-

tence vacated and his case remanded for resentencing to a

sentence of years.

In Atkins v. Virginia, the Supreme Court held that the

Eighth Amendment prohibits the execution of the intellectu-

ally disabled. 536 U.S. at 321. The Court did not define intel-

lectual disability for purposes of ineligibility for the death

penalty, but rather left to the states the task of developing

appropriate ways for determining intellectual disability. Id.

at 317. The Court offered the states guidance by referring to

No. 13-1880 31

the clinical definitions provided by the AAMR and the

American Psychiatric Association (APA), id. at 308 n.3, and

noting that the state statutory definitions “generally conform

to the clinical definitions,” id. at 314 & 317 n.22.

In Hall v. Florida, 134 S. Ct. 1986 (2014), the Supreme

Court again declined to set forth a legal definition of intellec-

tual disability. The Court held that Florida’s strict IQ test

score cutoff “create[d] an unacceptable risk that persons

with intellectual disability will be executed, and thus is un-

constitutional.” Id. at 1990. The Court again turned to the

views of the states and medical experts for guidance in de-

termining intellectual disability, id. at 1993–94, noting that

“[t]he legal determination of intellectual disability is distinct

from a medical diagnosis, but it is informed by the medical

community’s diagnostic framework,” id. at 2000. The Court

concluded that in determining intellectual disability, sen-

tencing courts must take into account an IQ test’s standard

error of measurement. Id. at 2001.

Indiana law defines an individual with intellectual disa-

bility as “an individual who, before becoming twenty-two

(22) years of age, manifests: (1) significantly subaverage in-

tellectual functioning; and (2) substantial impairment of

adaptive behavior; that is documented in a court ordered

evaluative report.” Ind. Code § 35-36-9-2. In Pruitt I, 834

N.E.2d at 108, the Indiana Supreme Court decided that the

statutory definition was constitutional under Atkins. Indeed,

the Atkins Court had noted that Indiana’s statutory defini-

tion “generally conform[s] to the clinical definitions.” 536

U.S. at 314 & 317 n.22; see also McManus v. Neal, 779 F.3d 634,

650 (7th Cir. 2015) (noting that Indiana’s definition of intel-

lectual disability “is consistent with the clinical standards”);

32 No. 13-1880

State v. McManus, 868 N.E.2d 778, 785 (Ind. 2007) (noting that

in determining what is “significantly subaverage intellectual

functioning” the court refers to the definitions provided by

the AAMR and the APA). The state court’s finding as to each

prong of the statutory definition of intellectual disability is a

factual determination. See McManus, 779 F.3d at 654 (“[T]he

Indiana Supreme Court’s factual determination that [peti-

tioner’s] intellectual functioning is not significantly subaver-

age is solidly grounded in the record and thus is not objec-

tively unreasonable.”); id. at 656 (“[T]he Indiana Supreme

Court made an objectively reasonable factual determination

that [petitioner] is not intellectually disabled....”).

Intellectual functioning can be measured with an IQ test.

See, e.g., Am. Psychiatric Ass’n, Diagnostic and Statistical

Manual for Mental Disorders 37 (4th ed.-Text Rev. 2000)

(DSM-IV) (“Intellectual functioning is typically measured

with individually administered and psychometrically valid,

comprehensive, culturally appropriate, psychometrically

sound tests of intelligence.”); id. at 41 (stating that “general

intellectual functioning” is defined by the IQ score “obtained

by assessment with one or more of the standardized, indi-

vidually administered intelligence tests”); American Ass’n

on Intellectual & Developmental Disabilities, Definition of In-

tellectual Disability, http://aaidd.org/intellectual-

disability/definition# (last visited Apr. 8, 2015). In Indiana,

“a person is considered to meet the subaverage intellectual

functioning component if the person’s full-scale IQ test score

is two standard deviations below the mean; i.e., an IQ be-

tween 70 and 75 or lower.” McManus, 868 N.E.2d at 785

(quoting Woods v. State, 863 N.E.2d 301, 304 (Ind. 2007) (cit-

ing Atkins, 536 U.S. at 308 n.3)); see cf. DSM-IV, at 41 (“Signif-

icantly subaverage intellectual functioning is defined as an

No. 13-1880 33

IQ of about 70 or below (approximately 2 standard devia-

tions below the mean).”). The five-point range accounts for

the standard margin of error in IQ testing. McManus, 779

F.3d at 646 n.3. The Indiana Supreme Court has determined

that “IQ tests are only evidence; they are not conclusive on

either the subject’s IQ or the ultimate question of [intellectu-

al disability].” Pruitt I, 834 N.E.2d at 106. Thus, the state su-

preme court held that “courts may consider IQ scores to-

gether with other evidence of mental capacity,” including

“work history, school history, and life functioning.”

McManus, 868 N.E.2d at 785.

As for adaptive functioning, we recently recognized that:

[t]he medical community measures adaptive behavior

across three domains: conceptual, social, and practi-

cal. To satisfy this component of the definition, a per-

son’s adaptive functioning in at least one domain

must be “sufficiently impaired that ongoing support

is needed in order for the person to perform ade-

quately in one or more life settings at school, at work,

at home, or in the community.” Moreover, the deficits

must be caused by the person’s intellectual impair-

ment [and must] … appear during childhood or ado-

lescence.

McManus, 779 F.3d at 650–51 (footnote omitted; quoting Am.

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental

Disorders, Fifth Edition (DSM-5) 38 (2013) and citing DSM-5 at

33, 38).

The Indiana Supreme Court rejected Pruitt’s claim of in-

tellectual disability based solely on the intellectual function-

ing prong; it did not determine whether the evidence satis-

34 No. 13-1880

fied the adaptive functioning prong. However, the court

concluded that the trial court applied a “too restrictive”

standard for adaptive functioning and therefore that the trial

court’s finding as to that prong was “not supportable.”

Pruitt I, 834 N.E.2d at 110.

Pruitt argues that the Indiana Supreme Court’s conclu-

sion that he did not establish significantly subaverage intel-

lectual functioning is based on an unreasonable determina-

tion that: 1) his IQ scores were “inconsistent”; and 2) “more

importantly,” his IQ scores were not determinative given the

evidence that he could “fill out applications for employ-

ment” and had “the capacity, if not the will at times, to sup-

port himself.” Pet’r-Appellant’s Br. 28 (quoting Pruitt I, 834

N.E.2d at 106). We conclude that the Indiana Supreme

Court’s finding that Pruitt did not meet the intellectual func-

tioning prong was an unreasonable factual determination.

Although some of Pruitt’s test scores may appear incon-

sistent, the reliable IQ scores were consistently within the

range of significantly subaverage intellectual functioning.

Beginning when he was an adolescent and long before his

crimes, Pruitt achieved verbal scores of 64 on two Lorge-

Thorndike tests and nonverbal scores of 65 and 63. These

scores suggest that he had significantly subaverage intellec-

tual functioning. The state’s expert Dr. Groff and Dr. Golden

agreed that Pruitt gave his best effort on these two tests. Dr.

Golden stated that these scores suggested that Pruitt’s IQ

was “fairly stable” at that point in time. These Lorge-

Thorndike tests were taken when Pruitt was an adolescent;

thus, the scores reflect his intellectual functioning before the

age of 22, which is the critical age for the third prong of In-

diana’s statutory definition—age of onset—and long before

No. 13-1880 35

the crimes at issue and before Pruitt had any motive to ma-

linger in order to defeat the death penalty. Both Drs. Hudson

and Golden testified that the IQ scores obtained as a child

would most accurately measure Pruitt’s intelligence before

age 18. Trial Tr. 1355–56 (Hudson stating that “IQ is meant

to be diagnosed in childhood.”), id. at 1551 (Golden stating

that scores before age 18 are “absolutely” more important

than scores after that age in assessing IQ).

After Deputy Starnes’ murder, consistent with his scores

on the Lorge-Thorndike tests, Pruitt achieved full-scale IQ

scores of 65 on not one, but two Stanford-Binet tests. The

scores on these four intelligence tests were consistent: all of

them fell well within the range for intellectual disability. Dr.

Hudson explained that the research demonstrates an “ex-

tremely high correlation” between the Lorge-Thorndike and

Weschler, the latter of which, along with the Stanford-Binet,

is considered the gold standard in forensic cases. (We note

that Pruitt scored a full-scale IQ score of 52 on the WAIS in

2003, but we discount that score based on the experts’

agreement that it underestimated Pruitt’s intellectual func-

tioning due to lack of effort.)

Granted, Pruitt obtained a full-scale IQ score of 76 on the

WAIS in 2002, but Dr. Olvera explained that Pruitt was tak-

ing antipsychotic medication at the time he took the test and

this may have produced a higher score than he would have

obtained without the medication. Dr. Hudson agreed that

the drug would have increased Pruitt’s accuracy on the test

and improved his score. Dr. Hudson believed that absent the

drug, Pruitt’s score probably would have been closer to 70.

Likewise, Dr. Golden thought that the drug could increase

Pruitt’s score “significantly” because it would improve his

36 No. 13-1880

attention and ability to focus. Given these experts’ testimo-

ny, the state court’s determination that there was insufficient

evidence to show what effect, if any, the antipsychotic medi-

cation may have had on Pruitt’s IQ score “ignore[d] the clear

and convincing weight of the evidence.” Taylor v. Grounds,

721 F.3d 809, 817 (7th Cir. 2013) (citation omitted). Further-

more, according to every expert who expressed an opinion

on the issue—Drs. Hudson, Golden, Olvera, and Keyes—

Pruitt’s score of 76 was not inconsistent with significantly

subaverage intellectual functioning. These experts explained

that a single score has to be viewed in the context of the oth-

er test scores and other information in the record. Cf. DSM-5

at 37 (“Individual cognitive profiles based on neuropsycho-

logical testing are more useful for understanding intellectual

abilities than a single IQ score.”).

While Pruitt scored a 93 on the Revised Beta, Drs. Gold-

en, Hudson, and Keyes were quite critical of that test. The

test is group-administered in fifteen minutes. See DSM-5 at

37 (“Invalid scores may result from the use of brief intelli-

gence screening tests or group tests.”). According to Dr.

Golden, the Revised Beta is not accurate, not well-regarded

in the field, and not well-accepted as a general test of intelli-

gence. Dr. Hudson likewise questioned the reliability of the

Revised Beta. And Dr. Keyes stated that the Revised Beta “is

not considered a valid intelligence indicator by any profes-

sional psychologist who knows the literature and/or the

test.” PCR App. 773. Dr. Schmedlen believed that the Re-

vised Beta test was reliable, but he acknowledged that the

Revised Beta was not as reliable as the Weschler series or

Stanford-Binet tests. And to the extent that the state court

relied on Pruitt’s scores on the Otis-Lennon and Iowa basic

academic achievement tests, all of the experts save one

No. 13-1880 37

agreed that academic achievement tests do not test for intel-

ligence. The one exception was Dr. Schmedlen, and he was

unaware that the Otis-Lennon was known as the “Otis-

Lennon School Ability Test” and that the Otis-Lennon score

was not given as an IQ score. Thus, his opinion was not well-

informed. Nonetheless, he acknowledged that the Otis-

Lennon test was not of the same quality as a Weschler or

Stanford-Binet intelligence test.

Four highly qualified experts with extensive experience

with the intellectually disabled—Drs. Hudson, Golden,

Olvera, and Keyes—all agreed that Pruitt’s IQ scores

demonstrated significantly subaverage intellectual function-

ing and that Pruitt is intellectually disabled. The only evi-

dence in the record to counter their opinions were the opin-

ions of Drs. Schmedlen and Groff. As noted, Dr. Schmedlen

erred in thinking that Pruitt’s scores on achievement tests

were equivalent to IQ scores. Dr. Groff acknowledged that

he could not give an opinion about Pruitt’s intellectual func-

tioning “with certainty,” but rather, could only give his im-

pression. Trial Tr. 1463. On top of that, Dr. Groff never met

or tested Pruitt. Dr. Groff just reviewed records and relied

on Dr. Schmedlen’s report. The state courts’ reliance on these

two experts went against the clear and convincing weight of

the evidence.

Even when viewed through AEDPA’s deferential lens,

the Indiana Supreme Court’s determination that Pruitt failed

to demonstrate significantly subaverage intellectual func-

tioning based on inconsistent test scores was objectively un-

reasonable and ignored the clear and convincing weight of

the evidence. Some of the test scores upon which the state

courts relied were not IQ scores; other scores were unrelia-

38 No. 13-1880

ble. The record establishes that Pruitt’s reliable IQ scores

consistently demonstrated significantly subaverage intellec-

tual functioning. 2

Pruitt challenges the Indiana Supreme Court’s considera-

tion of his ability to fill out job applications, obtain a com-

mercial driver’s license, and work as evidence that he did

not meet the intellectual functioning prong. He asserts that

the court characterized this evidence other than intelligence

test scores as “the most important” evidence bearing on his

intellectual functioning. The court wrote: “More important-

ly, IQ tests are only evidence; they are not conclusive on ei-

ther the subject’s IQ or the ultimate question of mental re-

tardation.” Pruitt I, 834 N.E.2d at 106. Our Supreme Court

made similar comments in Hall where it observed that

“Courts must recognize, as does the medical community,

that the IQ test is imprecise. This is not to say than an IQ test

score is unhelpful. It is of considerable significance, as the

medical community recognizes.” 134 S. Ct. at 2001. Nothing

in Hall or Atkins directs the states to give conclusive effect to

IQ scores, or precludes a state’s use of circumstantial evi-

dence of mental capacity other than IQ scores in assessing a

2 We reach this conclusion without consideration of the “Flynn Effect.”

Dr. Olvera testified that application of the Flynn Effect was contentious

in the professional community, PCR Tr. 57–58, and he has never adjusted

an IQ score in the clinical setting to account for the effect. We agree that

“[t]he state courts had no obligation to accept and apply the Flynn Effect

in the face of conflicting expert testimony about its acceptability and reli-

ability.” Pruitt v. Wilson, 2012 WL 4513961, at *14. And “nothing in Atkins

suggests that IQ test scores must be adjusted to account for the Flynn Ef-

fect in order to be considered reliable evidence of intellectual function-

ing.” McManus, 779 F.3d at 653.

No. 13-1880 39

defendant’s intellectual functioning. Recently in McManus,

we gave our nod of approval to the state court’s use of cir-

cumstantial evidence as additional support for its determi-

nation that the petitioner did not demonstrate significantly

subaverage intellectual functioning, 779 F.3d at 653–54 (re-

jecting argument that in assessing petitioner’s intellectual

functioning, state court should not have given any weight to

evidence that petitioner graduated from high school, suc-

cessfully worked three jobs, and cared for his disabled

child), though we noted that the “court mentioned this evi-

dence only in passing….” Id. at 654.

The problem arises where, as here, the state court relies

on inaccurate assumptions and select pieces of the evidence

in making its factual determination. Cf. McManus, 779 F.3d at

654 (“We do not doubt that intellectually disabled people

graduate from high school (with or without the assistance of

special-education programming) and also hold down jobs.”).

In concluding that Pruitt had not shown that he is intellectu-

ally disabled, the Indiana Supreme Court explained:

While some of Pruitt’s scores suggest significantly

subaverage intellectual functioning, others do not. In

addition to this data, the trial court found that Pruitt

was able to fill out applications for employment and

to have the capacity, if not the will at all times, to

support himself. In light of the inconsistent IQ scores

and the other evidence cited by the trial court, the tri-

al court’s finding that Pruitt did not meet the statuto-

ry test is consistent with this record.

Pruitt I, 834 N.E.2d at 106. The other evidence cited by the

trial court was Pruitt’s “functioning, work history, school

40 No. 13-1880

history, and all other evidence presented regarding [his] in-

tellectual functioning.” Id.

Pruitt asserts that there is no evidence that activities such

as filling out job applications are relevant to an intellectual

disability determination. Indeed, the record contains evi-

dence that mildly intellectually disabled individuals can ob-

tain driver’s licenses, fill out job applications, and obtain and

maintain employment. Dr. Hudson testified at trial that the

nature of the application, the extent to which it was complet-

ed independently, and its accuracy would be important con-

siderations. For example, Pruitt completed a job application

in 1999, but it contained spelling errors, incomplete sentenc-

es, inaccurate punctuation, inappropriate responses to some

questions, and omitted responses to other questions. It

would be unreasonable to conclude that this job application

demonstrates that Pruitt’s IQ is higher than that reflected by

the reliable IQ scores.

Even though Pruitt has had numerous jobs, they did not

require high intellectual functioning: dishwasher, truck

driver, carpenter, and laborer. He was unable to maintain

any job for any length of time without assistance. His father

got him a job in construction, but he was hired only because

the employer considered his father a valued employee, and

Pruitt worked in demolition and clean-up work. Pruitt did

not learn the carpentry skills, and he needed to have his fa-

ther there constantly telling him what to do. When Pruitt’s

father retired, Pruitt was fired because he was unable to do

basic work without constant supervision and could not

communicate well with others. Pruitt’s employment as a

truck driver demonstrated similar challenges that provides

additional support for the conclusion that he has significant-

No. 13-1880 41

ly subaverage intellectual functioning, For example, Pruitt

once parked his semi in the middle of a street and when he

was told he could not park there, he responded that there

were no signs saying that he could not park there.

Pruitt further challenges the state court’s reliance on his

work history as a basis for finding that he did not satisfy the

intellectual functioning prong, given the evidence that he

satisfied the adaptive functioning prong, specifically in the

skill area of work. Drs. Hudson, Schmedlen, and Keyes all

thought that Pruitt showed substantial impairment in work.

We agree with Pruitt that it is illogical and irreconcilable for

the state court to find that his work history outweighs his IQ

scores when all experts expressing an opinion on the issue

agree that he is substantially impaired in this area of adap-

tive functioning. We conclude that the state court erred in

finding that Pruitt’s work history supported the determina-

tion that Pruitt did not meet the intellectual functioning

prong and was not intellectually disabled.

Moreover, Pruitt’s school history does not support the

conclusion that he failed to establish significantly subaver-

age intellectual functioning. Within the first three years of

elementary school, Pruitt was held back twice; he was placed

in special education classes; and he was socially promoted.

At the age of 16, Pruitt dropped out of school without ad-

vancing past the eighth grade. As Dr. Dare explained,

Pruitt’s school records “clearly point to a student who quali-

fies under the special ed[ucation] category of mild [intellec-

tually disabled].” PCR Tr. 329. And the record evidence es-

tablished that Pruitt was unable to function on his own as an

adult; he lived with and depended on his family to take care

of him.

42 No. 13-1880

The Indiana Supreme Court made an unreasonable de-

termination of fact in concluding that Pruitt’s work history,

school history, and other evidence supported the finding

that Pruitt failed to establish significantly subaverage intel-

lectual functioning. Rather, the clear and convincing weight

of the evidence establishes that Pruitt suffers from signifi-

cantly subaverage intellectual functioning.

Turning to the second prong of the definition of intellec-

tual disability, Pruitt argues that he has established that his

adaptive behavior is substantially impaired. We agree. The

Indiana Supreme Court rejected the trial court’s use of a

heightened standard to prove the adaptive-behavior prong.

While the court noted that “the evidence on the adaptive be-

havior prong is at least conflicting,” Pruitt I, 834 N.E.2d at

110, it did not actually conclude that Pruitt failed to establish

substantial impairment of adaptive behavior. Thus, we re-

view this prong de novo. Ruhl, 743 F.3d at 1091.

The state court record contains unrebutted evidence that

Pruitt satisfies the adaptive behavior prong of intellectual

disability. Court-appointed expert psychologist Dr. Schmed-

len administered an objective test of adaptive functioning

and determined that Pruitt met the adaptive behavior prong

under the AAMR definition because he was substantially

impaired in two areas of adaptive functioning: work and

self-direction. Defense expert psychologist Dr. Hudson testi-

fied, based on his review of Pruitt’s history and two clinical

evaluations, that Pruitt showed significant deficits in six

adaptive skills areas: communication, home living, social

skills, functional academics, health and safety, and work.

Based on standardized testing to assess adaptive function-

ing, interviews with Pruitt’s family, special education teach-

No. 13-1880 43

ers, and family friends, and review of records and trial tes-

timony, defense expert Dr. Keyes concluded that Pruitt’s

adaptive functioning skills were significantly impaired in

virtually all areas, even estimating his overall adaptive func-

tioning at about the level of a six- to eight-year-old child. No

expert offered any contrary opinion regarding Pruitt’s adap-

tive functioning. In addition, Pruitt presented extensive lay

testimony regarding his development, school and work his-

tory, and functioning that supported these experts’ unrebut-

ted opinions as to his adaptive functioning. And significant-

ly, the state does not even argue on appeal that the evidence

failed to establish that Pruitt suffers from substantially im-

paired adaptive functioning.

In sum, the Indiana Supreme Court’s decision that Pruitt

has not shown that he is intellectually disabled was based on

an unreasonable determination of the facts. Pruitt has

demonstrated with clear and convincing evidence that he is

intellectually disabled. Therefore, he is categorically and

constitutionally ineligible for the death penalty and his

death sentence must be vacated.

C. Ineffective Assistance of Counsel

Pruitt raises three alleged errors in support of his ineffec-

tive-assistance-of-counsel claim, but we need address only

one—whether trial counsel was ineffective at the penalty

phase in investigating and presenting evidence that Pruitt

suffered from paranoid schizophrenia. Under the familiar

test of Strickland v. Washington, 466 U.S. 668 (1984), Pruitt

first must show that counsel’s performance was deficient,

which means that it “fell below an objective standard of rea-

sonableness.” Id. at 687–88. He also “must show that the de-

ficient performance prejudiced the defense,” id. at 687, which

44 No. 13-1880

means “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

“Judicial scrutiny of counsel’s performance must be high-

ly deferential.” Id. at 689. Courts “indulge a strong presump-

tion that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant

must overcome the strong presumption that, under the cir-

cumstances, the challenged action might be considered

sound trial strategy.” Id. (internal quotation marks omitted).

When a petitioner challenges a state court’s application of

Strickland under § 2254(d), our review is “doubly deferen-

tial”: “[w]e take a highly deferential look at counsel’s per-

formance, through the deferential lens of 2254(d).” Pinhol-

ster, 131 S. Ct. at 1403 (internal citations and quotation marks

omitted). The Supreme Court has cautioned federal courts to

“guard against the danger of equating unreasonableness

under Strickland with unreasonableness under § 2254(d).”

Richter, 562 U.S. at 105. “When § 2254(d) applies, the ques-

tion is not whether counsel’s actions were reasonable,” but

whether “there is any reasonable argument that counsel sat-

isfied Strickland’s deferential standard. Id.; see Campbell v.

Reardon, 780 F.3d 752, 762 (7th Cir. 2015).

“[C]ounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular inves-

tigations unnecessary. In any ineffectiveness case, a particu-

lar decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.” Strickland, 466

U.S. at 691. We have explained that “[r]esources are limited,

and trial counsel must eventually shift from pretrial investi-

No. 13-1880 45

gation to trial preparation.” Campbell, 780 F.3d at 765. “There

comes a point where a defense attorney will reasonably de-

cide that another strategy is in order, thus ‘mak[ing] particu-

lar investigations unnecessary.’” Pinholster, 131 S. Ct. at 1407

(quoting Strickland, 466 U.S. at 691). “[S]trategic choices

made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable,” Strick-

land, 466 U.S. at 690; strategic choices made after less than

thorough investigation are reasonable only “to the extent

that reasonable professional judgments support the limita-

tion on investigation,” id. at 691.

Pruitt argues that trial counsel rendered ineffective assis-

tance at the penalty phase in failing to investigate and pre-

sent mitigating evidence that he suffered from paranoid

schizophrenia which causes hallucinations and paranoid de-

lusions. He asserts that two statutory mitigating circum-

stances applied because of his schizophrenia: he “was under

the influence of extreme mental or emotional disturbance

when the murder was committed,” and his capacity to “con-

form [his] conduct to the requirements of law was substan-

tially impaired as a result of mental disease or defect. Ind.

Code § 35-50-2-9-(c)(2), (6).

The Supreme Court has decided several cases in which it

concluded that counsel’s failure to investigate and present

mitigation evidence constituted ineffective assistance under

Strickland. In Rompilla v. Beard, 545 U.S. 374 (2005), for exam-

ple, although counsel were aware of the defendant’s crimi-

nal record, they did not examine the file on his prior convic-

tion. And although counsel knew from police reports that

the defendant had been drinking heavily at the time of the

crime and one of the three mental health experts had rec-

46 No. 13-1880

ommended investigation into his alcohol use, “counsel did

not look for evidence of a history of dependence on alcohol

that might have extenuating significance.” Id. at 382. Had

counsel investigated further they would have discovered

that the defendant had a serious drinking problem. Id. at

391–92. And had counsel examined the file on the defend-

ant’s prior conviction, they would have found test results

that defense mental health experts thought suggested

“schizophrenia and other disorders, and test scores

show[ed] a third grade level of cognition.” Id. at 391. The

Supreme Court concluded that “reasonably diligent counsel

may draw a line when they have good reason to think fur-

ther investigation would be a waste,” id. at 383, but counsel

“could not reasonably have ignored mitigation evidence or

red flags,” id. at 391 n.8.

As another example, in Wiggins v. Smith, 539 U.S. 510

(2001), counsel failed to investigate and present mitigating

evidence of the defendant’s dysfunctional background, and

relied instead on the argument that the defendant was not

directly responsible for the murder. Id. at 523-24, 535. The

state court denied post-conviction relief, concluding that

“counsel had made a deliberate, tactical decision to concen-

trate their effort at convincing the jury that [petitioner] was

not directly responsible for the murder.” Id. at 518 (quotation

omitted). The Supreme Court said that the issue “was not

whether counsel should have presented a mitigation case”

but “whether the investigation supporting counsel’s decision

not to introduce mitigating evidence of [petitioner’s] back-

ground was itself reasonable.” Id. at 523. The Court concluded

that the state court’s “strategic decision” rationale was a post

hoc rationalization of counsel’s conduct and that counsel’s

decision not to present a mitigation defense was based on an

No. 13-1880 47

unreasonable investigation and thus that decision “was also

objectively unreasonable.” Id. at 527–28.

Similar to counsel’s shortcomings in Rompilla and Wig-

gins, Pruitt’s trial counsel’s failure to investigate Pruitt’s

mental illness fell below an objective standard of reasona-

bleness. Trial counsel knew that shortly after Pruitt was ar-

rested for killing Deputy Starnes, a DOC psychiatrist had

diagnosed Pruitt with “schizophrenia, chronic undifferenti-

ated type compensated residual,” which meant that he had

been schizophrenic “at one time” but was not “actively

schizophrenic” at the time of the diagnosis. Counsel knew

that the psychiatrist had prescribed Pruitt Trilafon, an anti-

psychotic medication. Counsel also knew from Dr. Hudson’s

testimony at the pretrial hearing that Dr. Hudson noted

some of Pruitt’s responses to his questioning were not

“clearly lucid.” And counsel was aware that Dr. Schmedlen

had seen symptomology consistent with schizophrenia dur-

ing his evaluations of Pruitt. If this were not enough to

prompt a competent lawyer to further investigate Pruitt’s

mental health, the defense’s own expert Dr. Olvera had rec-

ommended that counsel contact an expert “in dealing with

psychosis, such as schizophrenia.” But trial counsel did not

contact such an expert to have Pruitt evaluated, and counsel

offered no reason for failing to do so. As in Rompilla, counsel

ignored the “red flags” pointing to potential mitigation evi-

dence, and counsel acted unreasonably in failing to investi-

gate further.

The record establishes that counsel had every reason to

follow through on Dr. Olvera’s recommendation, and no

good reason not to have Pruitt evaluated by an expert in

psychosis. After all, counsel testified at the post-conviction

48 No. 13-1880

hearing that the defense strategy was to prove that Pruitt did

not deserve the death penalty because of his intellectual dis-

ability, his serious mental illness, and his brain damage. Since

the stated strategy included showing that Pruitt had a seri-

ous mental illness, a reasonably competent attorney would

have realized that investigating Pruitt’s mental health fur-

ther was necessary to prove the defense. It was unreasonable

for counsel to fail to contact an expert in psychosis, such as

schizophrenia, particularly given that the defense’s own ex-

pert Dr. Olvera had recommended that they contact such an

expert. And given the evidence already known to counsel,

they had no reason to think that contacting an expert in psy-

chosis “would have been counterproductive, or that further

investigation would have been fruitless.” Wiggins, 539 U.S.

at 525.

The Indiana Supreme Court surmised that trial counsel

made a deliberate, strategic decision to concentrate on

Pruitt’s intellectual disability rather than his mental illness.

Yet nothing in the record suggested to counsel that the two

diagnoses—intellectual disability and schizophrenia—were

mutually exclusive. Indeed, “there is substantial comorbidity

between schizophrenia and intellectual disability….” Owen,

Michael J., et al., “Neurodevelopmental Hypothesis of

Schizophrenia.” The British Journal of Psychiatry 198(3): 173–

175 (Mar. 2011), available at

www.ncbi.nlm.nih.gov/pmc/articles/PMC3764497 (last visit-

ed May 8, 2015). Trial counsel did not have to concentrate on

one defense or the other. And counsel never suggested that

they made a decision to focus on Pruitt’s intellectual disabil-

ity rather than his mental illness. They did not suggest that

their “first priority” was to show that Pruitt is intellectually

disabled and that showing he had a serious mental illness

No. 13-1880 49

was only secondary. Counsel testified that the strategy was

to prove based on all of the things identified—intellectual

disability, mental illness, and brain damage—that Pruitt did

not deserve to die. This was a three-pronged approach.

Merely listing the three as “one,” “two,” and “finally,” with-

out more did not prioritize the prongs. The state court over-

stated the evidence in this regard.

And even if we assume that counsel made a strategic de-

cision to focus on intellectual disability, that choice was

made after a less than thorough investigation, and as a re-

sult, the decision was not fully informed and was unreason-

able. See Strickland, 466 U.S. at 690–1 (concluding that “stra-

tegic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable profes-

sional judgments support the limitation on investigation”).

Thus, to the extent that counsel made a decision to focus the

jury’s attention on Pruitt’s claim of intellectual disability ra-

ther than his mental illness, the evidence of mental illness

was much weaker than the intellectual disability evidence

only because counsel failed to investigate more fully Pruitt’s

mental health.

The state court’s determination that trial counsel were not

deficient in their presentation of evidence of Pruitt’s mental

health was unreasonable. While trial counsel investigated

Pruitt’s mental state and presented evidence of his mental

illness at the penalty phase of trial, their investigation and

presentation of evidence were deficient.

Because the Indiana Supreme Court did not assess

whether Pruitt could satisfy Strickland’s prejudice prong, our

review is de novo. Rompilla, 545 U.S. at 390. We conclude that

Pruitt can show prejudice. To establish prejudice, a petition-

50 No. 13-1880

er “must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceed-

ing would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the out-

come.” Strickland, 466 U.S. at 694. The likelihood of a differ-

ent outcome “must be substantial, not just conceivable.”

Richter, 562 U.S. at 112. “When a defendant challenges a

death sentence … the question is whether there is a reasona-

ble probability that, absent the errors, the sentencer …

would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland,

466 U.S. at 695. When assessing that probability, a court

should “consider ‘the totality of the available mitigation evi-

dence—both adduced at trial, and the evidence adduced in

the habeas proceeding—and ‘reweig[h] it against the evi-

dence in aggravation.’” Porter v. McCollum, 558 U.S. 30, 41

(2009) (quoting Williams v. Taylor, 529 U.S. 362, 397–98

(2000)).

Trial counsel presented evidence of Pruitt’s mental illness

and its effects on Pruitt at the penalty phase. The jury heard

testimony from Dr. Golden that two months after killing Of-

ficer Starnes, a DOC psychiatrist had diagnosed Pruitt with

“schizophrenia, chronic undifferentiated type compensated

residual,” which meant that the psychiatrist thought that at

one time Pruitt had been schizophrenic, but at that time, the

most serious symptoms were not present. Dr. Golden said

that the symptomatology for schizophrenia was similar to

that for schizotypal personality disorder. Nonetheless, the

jury heard only from Dr. Golden, not the DOC psychiatrist

who had diagnosed schizophrenia, and the former testified

that Pruitt’s illness was “not severe enough to be” schizo-

phrenia; it was schizotypal personality disorder instead.

No. 13-1880 51

Although Dr. Golden testified about the symptoms and de-

bilitating effects of schizoid personality disorder, he also told

the jury that for someone with schizotypal personality dis-

order, “psychotic episodes should be the exception rather

than the rule.”

We disagree with the district court that this is simply a

“battle of the experts” over the severity of Pruitt’s mental

illness. See Pruitt, 2012 WL 4513961, at *30. The sentencing

judge referenced the jury’s finding that “the aggravating cir-

cumstances outweighed any and all mitigating circumstanc-

es.” Trial Tr. at 6460. Indeed, in imposing sentence, the sen-

tencing judge determined that none of the possible mitigat-

ing factors presented “constitute a mitigating circumstance”

and more specifically that “Pruitt does not have a mental

condition that would justify his actions or in any way miti-

gate for purposes of sentencing.” Id. at 6455. However, the

three post-conviction experts—Drs. Coons, Ballenger, and

Price—all testified that Pruitt met two of the statutory miti-

gating factors: due to his schizophrenia, he “was under the

influence of extreme mental or emotional disturbance when

the murder was committed” and his capacity “to conform

[his] conduct to the requirements of law was substantially

impaired as a result of mental disease or defect,” Ind. Code §

35-50-2-9(c)(2) and (6). (Drs. Ballenger and Price also testified

that Pruitt’s capacity to appreciate the criminality of his con-

duct was substantially impaired because of mental disease

or defect.) But the jury never heard any of this testimony.

Because this unrebutted testimony, from not one but three

highly qualified mental health experts, supported a finding

that Pruitt had evidence of two statutory mitigating circum-

stances, whereas the sentencing judge found that Pruitt did

52 No. 13-1880

not have a mental condition that was mitigating, there is a

reasonable probability that this evidence might have affected

the judge’s and jury’s assessment of Pruitt’s moral culpabil-

ity, and that they might have concluded that death was not

warranted. See Williams, 529 U.S. at 398 (concluding that

counsel’s failure to investigate and present mitigating evi-

dence at sentencing prejudiced the defendant where the un-

discovered mitigating evidence “might well have influenced

the jury’s appraisal of [the defendant’s] culpability”). It is

significant that in considering the sentence, the jury wanted

to know whether Dr. Golden had any knowledge of Pruitt’s

thought processes, including his thinking, at the time of the

crime. Their desire to know Pruitt’s thought processes

strongly suggests that evidence of what was going on in his

head at the time of the crime might have made a difference

in his sentence.

Respondent argues that we have rejected the same basis

for asserting ineffective assistance of counsel in Overstreet v.

Wilson, 686 F.3d 404 (7th Cir. 2012), where we held the state

court reasonably determined that counsel’s presentation of

mitigation evidence was not constitutionally deficient and

the petitioner failed to show prejudice. Id. at 408. Overstreet

does not direct the conclusion that Pruitt’s ineffective assis-

tance claim fails in this case.

In Overstreet, defense counsel presented expert testimony

at sentencing that the defendant had a “schizotypal person-

ality disorder”; a second expert testified at the post-

conviction hearing that he would have opined that the de-

fendant had “schizoaffective disorder,” which was described

as a combination of schizophrenia and depression. Id. At the

post-conviction hearing, trial counsel testified as to their

No. 13-1880 53

strategic reasons for having the first expert but not the sec-

ond expert testify. Id at 409. The petitioner argued that his

counsel should have called both experts, or should have

called the second expert alone “because schizotypal person-

ality disorder is just a ‘personality disorder’ on Axis II,”

whereas schizophrenia was “a more serious, Axis I ‘clinical

disorder.’” Id. at 408. The state court doubted that a jury

would have appreciated the “subtle and nuanced distinction

between a schizoaffective disorder and a schizotypal per-

sonality disorder.” Id. (quoting Overstreet v. State, 877 N.E.2d

144, 156 (Ind. 2007)).

In addressing the ineffectiveness claim, we observed that

defense counsel had presented evidence that the petitioner

had a serious mental abnormality and had argued that he

was not blameworthy. Id. at 408. Indeed, counsel presented

the first expert’s emphatic testimony that he believed the de-

fendant’s ability to “conform his conduct to the require-

ments of law” was “significantly impaired.” Id. at 409. We

concluded that “[t]o undermine counsel’s choices and the

state judiciary’s findings about prejudice,” id., the petitioner

needed evidence “that no reasonable lawyer would have

thought [the first expert] the better witness, and that jurors

would be less likely to recommend death for a defendant

who has schizophrenia,” id. at 409–10, and that the state

court’s contrary determination was unreasonable, id. at 410.

The petitioner had no such evidence; therefore he could not

upset the state court’s finding that the two experts would

have made essentially the same impression on the jury. Id. at

410.

In contrast with Overstreet, where trial counsel presented

emphatic expert testimony that the defendant satisfied two

54 No. 13-1880

statutory mitigating circumstances, Pruitt’s case is not mere-

ly about different psychiatric terms and labels. The post-

conviction experts testified that Pruitt satisfied two statutory

mitigating circumstances, whereas the trial experts did not

give such an opinion. And, as discussed, Pruitt’s trial coun-

sel did not conduct a thorough investigation into Pruitt’s

mental health and therefore did not make “an informed

choice” about what mental health evidence to present at sen-

tencing. The failure to contact an expert in dealing with psy-

chosis and schizophrenia left counsel ignorant about the po-

tential mitigation evidence. In Overstreet, we emphasized

that “trial counsel made an informed choice, quite unlike the

situation in Wiggins,” id. at 409, and in this case as well. Per-

haps most important, in contrast with Overstreet, here the

state court did not make any finding as to prejudice to which

we owe AEDPA deference. We conclude that there is a rea-

sonable probability that with the presentation of the mitigat-

ing evidence regarding Pruitt’s mental illness, Pruitt’s sen-

tence would have been different.

Although we recently recognized that “’it is difficult to

establish ineffective assistance [of counsel] when counsel’s

overall performance indicates active and capable advoca-

cy,’” Makiel, 782 F.3d at 902 (quoting Richter, 562 U.S. at 111),

even “an isolated error” can establish ineffective assistance

“if it is ‘sufficiently egregious and prejudicial.’” Id. (quoting

Murray v. Carrier, 477 U.S. 478, 496 (1986)). Counsel’s error

with regard to investigation and presentation of Pruitt’s par-

anoid schizophrenia is such an error. The Indiana Supreme

Court’s determination that trial counsel were not ineffective

for failing to investigate and present mitigating evidence of

Pruitt’s mental illness was an unreasonable application of

Strickland, and Pruitt has shown that he was prejudiced by

No. 13-1880 55

counsel’s ineffectiveness. Accordingly, the district court’s

judgment should be reversed and remanded for issuance of

a conditional writ remanding the case for a new penalty-

phase proceeding. 3

III. CONCLUSION

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

judgment and REMAND with instructions to grant a condi-

tional writ vacating Pruitt’s death sentence and remanding to

the State for a new penalty-phase proceeding.

3 The conclusion that Pruitt established ineffective assistance of counsel

under one of his theories makes it unnecessary for us to fully address his

other theories. Nonetheless, we do not think that trial counsel rendered

constitutionally ineffective assistance in their investigation and presenta-

tion of evidence of Pruitt’s intellectual disability or in failing to object to

alleged improper prosecutorial argument at trial. Nor do we think that

appellate counsel was constitutionally ineffective in not raising an inef-

fective-assistance claim based on trial counsel’s failure to object to the

alleged prosecutorial misconduct.