Foster, James T. v. Schomig, James M.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-1398 & 99-1482

James T. Foster,

Petitioner-Appellee,

Cross-Appellant,

v.

James M. Schomig,

Respondent-Appellant,

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 95 C 5037--Robert W. Gettleman, Judge.

Argued September 21, 1999--Decided May 31, 2000

Before Coffey, Manion, and Rovner, Circuit

Judges.

Manion, Circuit Judge. James Foster was

convicted by an Illinois jury of

murdering his girlfriend by beating her

with a baseball bat, and was sentenced to

death because he also sexually assaulted

her by forcing pieces of the broken bat

into her rectum. The Illinois Supreme

Court affirmed and denied collateral

relief. He brought this Section 2254

motion to argue that his counsel were

ineffective for, among other things,

failing to call a psychiatrist to testify

during the sentencing phase of his trial.

He asserts that had such an expert been

called, he would have informed the court

that Foster suffered from an extreme

emotional disturbance, which is a

mitigating factor under Illinois law. The

district court accepted this argument and

granted Foster’s petition. The State

appeals, arguing that the district court

erred in finding that Foster’s attorneys

were ineffective. Foster cross-appeals,

arguing that the district court erred in

holding that the Antiterrorism and

Effective Death Penalty Act (AEDPA) was

applicable to this case and in finding

that one of his attorneys was not

ineffective for telling the jury that

Foster "killed the woman he loved."

Because the Illinois Supreme Court’s

decision was not contrary to clearly

established law, we reverse the district

court in part and affirm in part.

I.

In 1985, James Foster was having an

adulterous relationship with Jacqueline

Simmons. Despite Foster’s own infidelity

to his wife, he became angry at Simmons

when he suspected she was unfaithful to

him. So on the night of January 9, 1985,

Foster went to confront her at an

apartment she shared with her roommate--

Theresa Williams. He began yelling at

Simmons and ordered her to disrobe in

front of him so that he could look for

signs of her involvement with other men.

Screaming and crying, Simmons complied.

Foster then threw her to the floor and

proceeded to hit and kick her repeatedly,

all the while ignoring her pleas to stop.

He then picked her up by her hair with

such force that tufts of it were torn

out. After taking a short break, Foster

proceeded to beat Simmons with a baseball

bat while calling her a "bitch" and a

"whore" and accusing her of "messing

around" on him. After the bat broke,

Foster forced part of it into Simmons’s

rectum. During the attack, Simmons’s

young child and two other children were

sleeping in another room of the

apartment. Williams, Williams’s

boyfriend, and a friend of Foster were

also in an adjoining room during the

beating. From there they could hear

Simmons’s screams and they periodically

witnessed portions of the two-hour

attack. They were also the audience for

Foster’s vaunts about how far he had

inserted the bat into Simmons’s rectum.

He showed them a piece of the bat and

said "look at how much the bitch took."

After hearing Foster’s boasts, Williams

went to assist Simmons and found her

breathing irregularly and suffering a

seizure. Although Williams told Foster

that Simmons desperately needed medical

attention, Foster responded that Simmons

was drunk and she just needed to sleep it

off. Foster then departed for a local

tavern; when he returned about twenty

minutes later, Simmons was dead. Not sur

prisingly, the coroner found that both of

Simmons’s lungs were collapsed and that

she suffered blunt trauma injuries on her

head, chest, abdomen, and legs, as well

as lacerations on her anus and liver. He

determined that her death was caused by

multiple blunt trauma, which resulted in

swelling of the brain and internal

hemorrhage of the liver. Foster

eventually confessed to beating Simmons

with a baseball bat, which made the

jury’s task at the guilt phase of his

trial easier. On June 7, 1985, after

hearing witnesses describe the details of

the crime and reading Foster’s written

confession, the jury convicted him of

murder. The State asked for the death

penalty because the victim was killed in

the course of an aggravated sexual

assault. See 720 ILCS sec. 5/9-

1(b)(6)(c). Because no judge in Kane

County had ever sentenced a defendant to

death, Foster and his attorneys decided

to have the judge, rather than a jury,

determine his penalty.

Foster was represented at trial and

sentencing by attorneys Frank Giampoli, a

part-time, Assistant Kane County Public

Defender, and George Chabalewski, a full-

time Public Defender. After the jury

convicted Foster, his attorneys contacted

a psychiatrist, Dr. Lyle H. Rossiter,

Jr., to evaluate whether Foster suffered

from any psychological condition which

might prevent the imposition of the death

penalty. Rossiter examined Foster on June

8 and June 19, and submitted a full

report on June 21, 1985. The report

states that Foster had a history of

serious head injuries and substance abuse

and that he suffers from an antisocial

personality disorder. While some aspects

of Dr. Rossiter’s report indicated the

presence of mitigating factors, it also

candidly stated that Foster had

"pronounced tendencies toward explosive

anger and aggressive physical outbursts."

Believing that Dr. Rossiter’s testimony

would do more harm than good, and after

seeing the prosecutors effectively cross-

examine some of the other defense

witnesses, Foster’s attorneys decided not

to present Dr. Rossiter’s testimony.

Instead, they called various family

members and friends who characterized

Foster as a generous, hard-working,

religious, family man. The mother (not

his wife) of two of his six children

testified that his generosity

occasionally entailed the provision of

financial support for the two children.

The defense also tried to show that one

shooting incident in which Foster was

purportedly involved was simply a case of

mistaken identity. Foster’s young son

also testified that his father played

basketball with him, exhorted him to lead

a good life, and all in all was an

excellent father. Other family members

and friends testified that he was

generous with his time and would help

sick relatives and repair automobiles for

free.

Of course, the State also presented its

own witnesses to show the presence of

aggravating factors. They described

Foster’s previous convictions for

battery, armed robbery, theft, and

illegally possessing firearms. One

witness testified that Foster and his

comrades gang-raped him while they were

in jail. Another witness described how

Foster beat and raped her at gunpoint

when she was fifteen years old and how

when he was finished with her Foster

ordered her to urinate on herself. Other

witnesses described an incident similar

to the beating of Simmons. Foster and his

friends tied up a woman and repeatedly

beat her with a stick, after which Foster

picked her up and dropped her on her

face. The judge also heard that Foster

once stabbed a police officer with a

concealed knife while he was in police

custody. On another occasion, Foster

forcibly entered the home of one family

by blowing apart their door with a

shotgun, the blast from which wounded one

of the occupants. The prosecution closed

its case by describing the crime and

asking the court to remember Foster’s

lack of remorse and the pain suffered by

Jacqueline Simmons.

Judge, I ask you when you go back into

chambers to consider this, to look,

again, at the photograph of this woman.

This is an attractive young girl who was

turned into this mess of mush with a

broken jaw and a torn liver.

And what does he do when he is finished

with her? As she’s lying there dying, he

brags about it. This is a good time for

him. He revels. He revels in the torture

that he inflicted on this woman. He takes

the bat, holds it up to the people who

are in the next room, and with excrement

all over it, he says "Look how much the

bitch took up her ass." And then, he goes

to a local bar for a drink because to him

this is a reason to party. This is a good

time.

Sent. Tr. at 2540-41.

After considering all of the evidence,

the judge determined that Foster merited

the death penalty and set his execution

date for September 18, 1985. The Illinois

Supreme Court affirmed his conviction and

sentence on direct appeal. People v.

Foster, 518 N.E.2d 82 (Ill. 1987). Later,

it also denied the relief which Foster

sought under the Illinois Post-Conviction

Hearing Act. People v. Foster, 660 N.E.2d

951 (Ill. 1995).

Foster subsequently filed the present

petition which alleges that his counsel

were ineffective for failing to call Dr.

Rossiter as a witness and for admitting

during closing argument of the guilt

phase that Foster killed Simmons. The

district court succinctly dispatched

Foster’s complaint about the closing

argument because Foster showed neither

deficient performance nor prejudice. But

the district court elected to hold an

evidentiary hearing on the ineffective

assistance at sentencing claim. The court

heard testimony from attorneys Giampoli,

Chabalewski, and Dr. Rossiter. Although

Dr. Rossiter’s 1985 report makes no

mention of the term "extreme emotional

disturbance,/1" he testified at the

evidentiary hearing that had he been

called as a witness at the sentencing

hearing, he would have told the court

that Foster suffered from such a

disorder. But his testimony also

indicated that, when effectively cross-

examined, he would have revealed that

Foster would exploit others for his own

personal gain, would rationalize

brutality, and was capable of inflicting

great harm without feeling any remorse.

Chabalewski and Giampoli testified that

they were both experienced litigators at

the time of Foster’s trial and had both

used Dr. Rossiter’s expert testimony in

other cases. They testified that they

made a tactical decision not to present

Dr. Rossiter as a witness because they

feared that his assessment of Foster’s

violent proclivities and inability to

feel remorse might harm Foster’s chances

of escaping the death penalty. Despite

this testimony, the district court found

that Foster’s counsel were

constitutionally ineffective at

sentencing. It therefore decided to grant

the writ unless Foster was afforded a new

sentencing hearing. By its own terms, the

district court’s order was stayed pending

appeal. United States ex rel. Foster v.

Gilmore, 35 F. Supp.2d 626, 633 (N.D.

Ill. 1999).

II.

To prevail on his Section 2254 claims,

Foster must show that a decision by the

Illinois state courts "was contrary to,

or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the

United States," or "was based on an

unreasonable determination of the facts

in the light of the evidence presented in

the State court proceeding." 28 U.S.C.

sec. 2254(d)(1) & (2);/2 see Williams

v. Taylor, 120 S. Ct. 1495, 1521 (2000).

We review these questions de novo. Schaff

v. Snyder, 190 F.3d 513, 522 (7th Cir.

1999). Findings of fact made by the

state courts are presumed to be correct

and this presumption may be rebutted only

by clear and convincing evidence. 28

U.S.C. sec. 2254(e)(1). In ineffective

assistance of counsel claims, the habeas

petitioner must show that his attorneys’

performance was deficient and that their

errors caused him prejudice. Strickland

v. Washington, 466 U.S. 668, 687-88, 692

(1984).

Foster argues here, as he did before the

Illinois Supreme Court and the district

court, that his attorneys acted

incompetently by declining to call Dr.

Rossiter to testify that Foster suffered

from an extreme emotional disturbance at

the time he killed Simmons.

In assessing the performance of counsel,

"a court must indulge a strong

presumption that counsel’s conduct falls

within the wide range of reasonable

professional assistance; that is, the

defendant must overcome the presumption

that, under the circumstances, the

challenged action ’might be considered

sound trial strategy.’" Strickland, 466

U.S. at 689. Keeping this presumption in

mind, our task is to reconstruct the

circumstances surrounding the challenged

conduct and determine whether they were

reasonable. This determination must not

be distorted with hindsight. Rather we

must evaluate the conduct from counsel’s

perspective at the time the relevant

decision was made. Id. A defense

attorney’s performance is acceptable when

he chooses a professionally competent

strategy that secures for the accused the

benefit of an adversarial process.

Kokoraleis v. Gilmore, 131 F.3d 692, 696

(7th Cir. 1997). If the attorneys’

strategic decisions were sound when they

were made, these decisions cannot support

a claim of ineffective assistance.

Certainly the decision not to call a

witness to testify can be a strategic

decision. United States v. Kozinski, 16

F.3d 795, 813 (7th Cir. 1994). Such a

decision is sound "if it is based on the

attorney’s determination that the

testimony the witnesses would give might

on balance harm rather than help the

defendant." Hall v. Washington, 106 F.3d

742, 749 (7th Cir. 1997).

The Illinois Supreme Court found that

Giampoli and Chabalewski’s decision not

to call Dr. Rossiter was "a matter of

trial strategy" which they concluded made

sense at the time the decision was made.

660 N.E.2d at 963. The district court, on

the other hand, concluded that Dr.

Rossiter’s testimony would have

demonstrated the statutory mitigating

factor of extreme mental or

emotionaldisturbance, that Dr. Rossiter

was highly credible, and that his

testimony was effective and persuasive.

35 F. Supp.2d at 631. It believed that

the failure to present Dr. Rossiter as a

witness deprived the sentencing judge of

valuable testimony which would have

necessarily altered the judge’s findings.

The court concluded that the failure to

present Dr. Rossiter’s testimony "rises

to the level of constitutionally

ineffective assistance of counsel." Id.

at 633.

In arriving at his conclusion, the court

referred to the sentencing transcript

where the trial judge stated that he

could not find any evidence that

indicated or showed him that the murder

was committed while the defendant was

under the influence of extreme mental or

emotional disturbance. "There just isn’t

any evidence of that factor." The

district court twice repeated the "there

just isn’t any evidence" statement to

emphasize trial counsel’s deficiency in

presenting mitigating evidence. But a

review of the sentencing transcript shows

that this statement was made in the

process of the court methodically going

through the five mitigating factors set

out in the Illinois statute./3 The

first factor to be considered was prior

criminal activity. The record was replete

with evidence of Foster’s prior criminal

activity, so there was obviously no

mitigation there. The second factor

concerned whether the defendant was

"under the influence of extreme mental or

emotional disturbance . . . ." The

sentencing judge said that he could not

find any evidence which indicated or

showed him that the murder was committed

while the defendant was under such an

influence. This is where he said "There

just isn’t any evidence of that factor."

Contrary to the district court’s

characterization, the sentencing judge

wasn’t distressed by the fact that none

was presented, nor did he question

whether there was any possibility of

presenting such evidence. As we discuss

below, there is a clear reason for this.

He then went on with the next three

mitigating factors making the same

cryptic statement that there was no

evidence indicating that the defendant

qualified for any of them.

Unfortunately, the hearing before the

district court, some thirteen years after

the trial, left something to be desired.

Although both defense attorneys

testified, neither of them had taken the

opportunity to review the sentencing

record, which included extensive

discussion among the attorneys and the

sentencing judge. Dr. Rossiter did have

an opportunity to at least review his

report. But all three witnesses-- defense

attorneys Giampoli and Chabalewski, and

Dr. Rossiter--had only vague

recollections of what took place prior to

and during the sentencing hearings. But

even with the witnesses’ diminished

recollection, the record of the hearing

before the district court supports the

conclusion of the Illinois Supreme Court

that the decision not to call Dr.

Rossiter was a matter of reasonable trial

strategy. Both Chabalewski and Giampoli

testified that they had worked with Dr.

Rossiter before and thus knew how he

would testify on cross-examination. They

both carefully considered presenting Dr.

Rossiter’s testimony at the sentencing

hearing but thought better of it when

they learned that he would describe

Foster as remorseless and prone to

violence.

Q. Whose decision was it not to call Dr.

Rossiter?

Giampoli: I think we both thought long

and hard about it and felt that his

testimony would hurt more than help.

Evid. Hear. Tr. at 44. Chabalewski’s

recollection was consistent with

Giampoli’s.

Q. Why did you fail to use Dr.

Rossiter’s report?

Chabalewski: My recollection is that on

balance, it hurt us as much as it helped

us and gave, I think, as much reason for

imposition of the death penalty as not.

Q. And precisely what portions of the

report did you believe were more harmful

to the case than helpful?

Chabalewski: The one thing that I recall

is I think the doctor’s assessment that

Mr. Foster was a sociopath.

* * *

Q. And in your opinion, after going

through Dr. Rossiter’s report, you felt

that it would be more harmful--harmful to

the defendant than beneficial at the

sentencing stage, am I correct?

Chabalewski: Correct.

Q. And that’s why you didn’t call Dr.

Rossiter?

Chabalewski: Correct.

Evid. Hear. Tr. at 92, 106.

At the sentencing hearing, the state put

on extensive evidence of Foster’s prior

criminal activity. In mitigation, the

defense presented witnesses who disputed

some of the facts regarding the criminal

activity referred to by the state. But

the bulk of the mitigating evidence

involved testimony of family and friends

regarding Foster’s good works, his

helpfulness to family members and friends

in need, and his role as a father. The

hearing was then continued because there

was some question whether Dr. Rossiter

would testify. At a point in the hearing

the court stated to the defense attorney,

As I understand your comments this

morning, you are saying that you still,

as you stand here now, intend to go

forward with the medical--or, with the

psychological evaluation, to present that

as evidence in mitigation.

Accordingly, I will then permit the

state to move forward with their

examination.

Sent. Tr. at 2518-19.

At the hearing on June 25, 1985, the

court learned that the defense would not

be calling Dr. Rossiter to testify. After

the attorneys discussed several documents

that would or would not come into

evidence, the prosecutor stated to the

court:

I have one other matter that I would

like to put on record in regard to the

expert testimony that the defense was

seeking to procure in this case.

Our office talked personally to Dr.

Rossiter, and also received a report from

him indicating that he had examined the

defendant.

It’s also come to our attention that

various medical tests were performed on

the defendant at Community Hospital as

part of the evaluating process by Dr.

Rossiter.

We lined up a witness to come to court

today in rebuttal.

Since the defendant indicated they would

not call Dr. Rossiter, obviously, we have

called off our witness.

We were ready to proceed if, in fact,

the defense wanted to call Dr. Rossiter.

What I’m indicating in summary, Judge,

is that all of the tests that the defense

sought to have performed on the defendant

were, in fact, carried out. And it was a

strategy decision on the part of the

defense not to call Dr. Rossiter. He was

available, and he did complete all of the

testing that they were seeking.

Sent. Tr. at 2534-35.

In response, attorney Giampoli stated:

Your Honor, basically, the only comment

attacking that comment is that this Court

cannot infer that those reports would

have a negative or positive effect

because, obviously, we just decided we

didn’t want to call the expert.

The Court: I understand. I was just

about to stop the defendant if any

comment was made to what the tests may or

may not indicate because, as far as I am

concerned, that is the choice you people

made.

I think the record does reflect that you

did have the opportunity to have the

defendant evaluated and tests performed

and things of that nature, and that’s--

and that’s as far as it goes.

Sent. Tr. at 2535-36.

Given this exchange, it is readily

apparent that the decision not to call

Dr. Rossiter was a thoughtful and

strategic one and that the prosecution

was not only going to bring in its own

expert psychiatric witness in the event

Dr. Rossiter testified, but there were

also certain documents that would reveal

the results of a number of medical tests.

Without saying why, the defense attorneys

emphasized to the court that it should

not infer that those reports would have a

negative or positive effect. This further

demonstrates that defense counsel had

every opportunity to review those

reports, and in view of the opposing

expert that would have been called, made

a strategic decision not to call Dr.

Rossiter. Given the context of the

actual hearing, and not based on what the

witnesses could or could not recall

thirteen years later, not calling Dr.

Rossiter was entirely reasonable.

The preclusion of whatever aggravating

evidence the prosecution was marshaling

was not the only thing that made the

decision not to call Dr. Rossiter

reasonable. As we have noted before in

cases like this one, there is a strong

possibility that the defendant’s

mitigation evidence might turn out to be

aggravating. See Emerson v. Gramley, 91

F.3d 898, 906 (7th Cir. 1996). Dr.

Rossiter’s preliminary report foretold

enough aggravating factors that could

offset whatever evidence of extreme

emotional disturbance might have been

mitigating. For instance, the report

stated that Foster has "an antisocial

personality disorder" and has "pronounced

tendencies toward explosive anger and

aggressive physical outbursts." Because

the report describes Foster in an

unflattering light, to say the least, it

would have caused any competent attorney

to pause and consider how devastating

this testimony could be to Foster’s case.

From Dr. Rossiter’s testimony at the

evidentiary hearing thirteen years later

we further see how he would have

described Foster if he had been called to

testify at the sentencing phase./4 Dr.

Rossiter stated:

I saw him [Foster] as a particularly

self-centered individual, probably

capable of exploiting others for his own

personal gain without regard to their

rights, let alone their sensibilities.

I think that he is capable of

rationalizing a good deal of the

brutality in this particular case. I

think he was capable of denying to me or

representing to me certain events in

somewhat less than entirely candid

detail.

* * *

[C]ertainly antisocial disorder, with it

by definition lack of the usual

constraints of conscience and the usual

ideal that provide the standards to which

one conforms conduct, that--that

characteristic of the antisocial

personality disorder would be a strong

aggravating factor in one sense.

The irony of the situation, if I may,

your Honor, is that from a psychiatric

point of view, an antisocial personality

disorder is a very extreme developmental

disorder. It’s a very defective

development of the human personality. The

absence of the constraints of conscience

and the ideals that guide and constrain

one’s behavior, that is an abnormality of

human nature. So in itself, it

constitutes, from a clinical point of

view, a very severe aberration.

It is not typically regarded that way

from a forensic legal point of view, of

course, but the fact is that persons who

have such disorders are very severely

crippled in their ability to lead a

normal life, to cooperate, to relate to

other people in a normal manner.

Evid. Hear. Tr. at 180-81 (emphasis

added). When cross-examined, Dr. Rossiter

was forced to expand upon his description

of Foster as a remorseless criminal.

Q. Okay. Dr. Rossiter, it is my

understanding that an individual who

suffers from an antisocial personality

disorder, that it’s typical of that type

of individual to have a criminal history,

is that correct?

A. That’s correct.

Q. And you had testified that this

starts with burglaries and purse

snatchings and crimes of that nature, am

I correct?

A. Correct.

Q. And that it’s not uncommon for an

individual who suffers from an antisocial

personality disorder to graduate into

more violent crimes, am I correct?

A. That’s true.

Q. And in fact, Mr. Foster has a history

of violent crimes?

A. That’s true.

Q. And he has the antisocial personality

disorder, is that right?

A. That’s correct.

* * *

Q. It’s my understanding as well that

people with an antisocial personality

disorder are generally considered to be

remorseless, is that fair?

A. Correct?

Q. Devious?

A. Yes.

Q. Dishonest?

A. Yes.

Q. Self-centered?

A. True.

Evid. Hear. Tr. at 172-73. When asked

whether Foster might become increasingly

violent, Dr. Rossiter conceded that this

might happen, and in his deposition

testimony he went so far as to say that

Foster was predisposed to violence.

Although Dr. Rossiter opined in his

deposition that his report would have

been more helpful to Foster’s case than

harmful, he conceded that there were

aggravating factors in his report, and

that based on his twenty-five years of

experience in criminal matters, "the

diagnosis of antisocial personality

disorder is usually taken in legal

circles as a damning kind of finding

because the individual is characterized

as being predatory, malicious,

unconscionable, and calculating in his

criminal activities."

As Dr. Rossiter emphasized several

times, extreme emotional disturbance is a

legal term, not a medical one. When the

district court pressed him at the

hearing, Dr. Rossiter acknowledged that

he would discuss the pros (mitigating)

and cons (aggravating) with defense

counsel. Dr. Rossiter stated, "I call

them as I see them. I try to inform the

consulting--the attorney for whom I’m

consulting of the potential two-edged

sword of my testimony if there is one,

because what I have to say may be

mitigating or damning, depending on which

dimension of the human nature under

question I’m talking about." Evid. Hear.

Tr. at 182./5

This kind of testimony could have

substantially damaged Foster’s case.

Foster obviously would not have wanted

the sentencing judge to hear an expert

opinion that Foster’s psychological

aberrations cause him to disregard the

rights and feelings of others to such an

extent that he would feel no remorse even

after killing a young mother while her

child was sleeping in the next room. Dr.

Rossiter’s testimony risked designating

Foster’s treatment of Jacqueline Simmons

as something he would be inclined to do

again. It would have suggested that

Foster’s violent behavior was not the

exception but the rule, making him a

constant threat to prison guards or

fellow inmates. Given the context in

which Dr. Rossiter’s testimony would have

been presented, it was a reasonable

strategic decision for the defense

attorneys not to expose Dr. Rossiter to

the prosecution’s cross-examination,

especially because it would have opened

the door to the testimony of the

government’s psychiatric expert.

Thus, we agree with the Illinois Supreme

Court that the decision not to call Dr.

Rossiter as a mitigation witness was a

matter of sound strategy. Foster has

failed to rebut the presumption that his

counsel’s decision was based on a

legitimate strategy or that his counsel’s

performance fell below an objective

standard of reasonableness./6

Even if we assume for the sake of the

argument that his attorneys were

incompetent in failing to present

Rossiter’s testimony, Foster has failed

to show that this caused him prejudice.

To demonstrate prejudice, a defendant

must show that "there is a reasonable

probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different. A

reasonable probability is a probability

sufficient to undermine confidence in the

outcome." Strickland, 466 U.S. at 694.

The prejudice inquiry "focuses on the

question whether counsel’s deficient per

formance renders the trial unreliable or

the proceeding fundamentally unfair."

Williams, 120 S. Ct. at 1513 n.17. In the

penalty phase of a capital case, to show

prejudice the movant must demonstrate

that "a reasonable probability exists

that, but for counsel’s substandard

performance, the sentencer ’would have

concluded that the balance of aggravating

and mitigating factors did not warrant death.’"

See Hall, 106 F.3d at 751-52 (quoting

Strickland, 466 U.S. at 695).

The Illinois Supreme Court concluded

that "[t]here is no reasonable

probability that the introduction of Dr.

Rossiter’s testimony would have prompted

the sentencing judge to find that there

were mitigating circumstances sufficient

to preclude imposition of the death

penalty." Foster, 660 N.E.2d at 963. Our

review of the record leads us to agree

with the Illinois Supreme Court. At best,

Dr. Rossiter’s testimony would have

helped Foster by suggesting that he was

suffering from schizophrenia, was

depressed at the time he killed Simmons,

and that due to psychological factors

beyond his control, he was prone to

violent outbursts. The presence of these

factors caused Dr. Rossiter to believe

(at least at the time of the hearing

before the district court) that when he

killed Simmons, Foster was under the

influence of extreme mental or emotional

disturbance. Assuming that the sentencing

judge would have believed Dr. Rossiter,

and would have disbelieved any

psychiatric evidence the state presented

to the contrary, Dr. Rossiter might have

put some weight on the mitigation arm of

the scale. We say "might have" because we

have noted before that the presence of an

emotional or mental disturbance can be

seen by some not as a mitigating factor,

but as an aggravating one. "Mitigation .

. . after all, may be in the eye of the

beholder." Burger v. Kemp, 483 U.S. 776,

794 (1987). Sentencing judges "may not be

impressed with the idea that to know the

cause of viciousness is to excuse it;

they may conclude instead that when

violent behavior appears to be outside

the defendant’s power of control, capital

punishment is appropriate to

incapacitate." Burris v. Parke, 130 F.3d

782, 784-85 (7th Cir. 1997).

But even if Dr. Rossiter’s testimony

definitely would have established the

existence of a mitigating factor, the

presence of one (or more than one)

mitigating factor does not preclude the

imposition of the death penalty. Rather,

Illinois law requires the sentencing

judge to consider all mitigating and

aggravating factors, including those

aggravating factors intentionally or

unintentionally set forth by a

"mitigation" witness. 720 ILCS sec. 5/9-

1(c). Thus, the sentencing judge was

obliged to consider those aspects of Dr.

Rossiter’s testimony which spoke to

Foster’s lack of rehabilitative

potential, his propensity to commit

violent acts, his inability to assimilate

himself into society, his failure to

accept responsibility for his crimes, and

his lack of remorse. See People v. Ward,

718 N.E.2d 117, 127 (Ill. 1999); People

v. Shatner, 673 N.E.2d 258, 268 (Ill.

1996); People v. Anderson, 672 N.E.2d

1314, 1319-20 (Ill. App. Ct. 1996);

People v. Kerkering, 671 N.E.2d 368, 372

(Ill. App. Ct. 1996); People v. Moore,

620 N.E.2d 583, 589 (Ill. App. Ct. 1993).

The district court did not take into

account these facets of Dr. Rossiter’s

testimony when it concluded that the

defense attorneys rendered ineffective

assistance by not calling Dr. Rossiter to

testify.

The district court believed that because

the sentencing judge was required to

consider whether Foster was emotionally

disturbed, "it is axiomatic that the

presentation of such evidence would have

influenced the sentencing judge." 35 F.

Supp.2d at 632. No doubt it would have

had some influence, but that influence

could well have been negative.

But even if Dr. Rossiter’s testimony

could be construed as having no

aggravating elements, and even if it

would not have opened the door to

psychological evidence from the

prosecution, in light of the other

evidence it seems that Dr. Rossiter could

hardly have established that Foster was

under an extreme emotional disturbance at

the time he murdered Simmons. As the

Illinois Supreme Court pointed out, "An

extreme emotional disturbance occurs when

defendant’s emotional state at the time

of the murder is ’at such a fragile point

as to leave him with little or no

emotional control.’" 660 N.E.2d at 963

(quoting People v. Phillips, 538 N.E.2d

500, 514 (1989)). Apparently Foster had

been looking for Jacqueline Simmons

throughout the evening of January 9,

1985. After several unsuccessful

attempts, he finally found her at the

apartment later that night. The brutal

beating with a baseball bat, witnessed

intermittently by three adults, lasted

nearly two hours. After showing off the

bat handle that he had inserted in

Simmons’s rectum, Foster left with a

friend to visit a bar. On the way out he

dismissed Theresa Williams’s warning that

Simmons needed to go to the hospital and

simply observed that "Simmons was drunk

and they should let her sleep it off."

518 N.E.2d at 85. When he returned about

20 minutes later, Simmons was dead. As

the Illinois Supreme Court concluded:

Defendant exhibited rational and logical

conduct on the night of the murder.

Defendant spoke to the victim and the

others in the apartment that night in a

coherent and rational manner. He tried to

resuscitate Simmons and removed evidence

of the beating from the apartment.

Defendant apparently expected the police

to investigate and he concocted a story

to tell them in order to protect himself.

In light of all the evidence which the

trial court considered at sentencing,

including defendant’s history of criminal

activity, defendant failed to demonstrate

a reasonable probability that the

sentencing judge would not have imposed

the death penalty if trial counsel had

presented Dr. Rossiter’s testimony in an

effort to show that defendant was under

an extreme emotional disturbance at the

time of the murder.

660 N.E.2d at 963-64.

We agree with the Illinois Supreme

Court. Even if we were to conclude that

counsel were ineffective, which we do

not, Foster could not demonstrate

prejudice. Because the totality of Dr.

Rossiter’s testimony would not have

provided a net benefit to Foster’s case,

and instead would likely have harmed it,

Foster has failed to show that there is a

reasonable probability that but for Dr.

Rossiter not testifying the sentencer

would have concluded that the balance of

aggravating and mitigating factors did

not warrant death. See Hall, 106 F.3d at

751-52. Thus, he has failed to satisfy

either the deficient performance or

prejudice prong of Strickland.

Foster’s final argument is that Giampoli

doomed his case by stating during closing

argument of the guilt phase of the trial

that Foster "killed the woman he loved."

The Illinois Supreme Court and the

district court correctly determined that

Foster failed to show either that the

statement constituted deficient

performance or that prejudice resulted

from this remark. Obviously, Giampoli was

attempting to direct the jury’s attention

to the intent element, the element on

which Foster hoped to prevail. Giampoli

testified as much. It is reasonable to

focus a jury’s attention on the element

which provides the greatest chance of

success and we previously held that this

is a sound trial strategy. See Underwood

v. Clark, 939 F.2d 473, 474 (7th Cir.

1991); see also United States v. Wilks,

46 F.3d 640, 644 (7th Cir. 1995)

(conceding guilt on one count was a

reasonable tactic because it lent

credibility to counsel). So contrary to

Foster’s assertions, merely conceding the

presence of one element was not an

admission of guilt and certainly was not

unreasonable in this context. Also,

because the jury had already heard

testimony that Foster confessed to

beating Simmons, had seen his written

confession, heard uncontradicted

testimony from witnesses to the beating,

and heard the coroner testify as to the

cause of Simmons’s death, Giampoli didn’t

tell the jury anything it didn’t already

know. This statement hardly could have

caused prejudice. Therefore, we agree

with the district court that the Illinois

courts did not err in denying relief on

this claim.

III.

Because Foster has not shown that his

conviction or sentence was contrary to

clearly established law or was an

unreasonable application of law as set

out in Strickland, he cannot prevail.

Accordingly, we AFFIRM the district

court’s denial of his Section 2254 motion

on his ineffective assistance claim

regarding his counsel’s closing argument

during the guilt phase. We REVERSE the

district court’s granting of his Section

2254 motion on his ineffective assistance

claim with respect to the sentencing

phase of his case.

/1 "Extreme emotional disturbance" is a legal term

rather than a medical one. In assessing a defend-

ant’s fitness for the death penalty, Illinois law

requires a sentencing judge to consider all

aggravating and mitigating factors, including

"whether the murder was committed while the

defendant was under the influence of extreme

mental or emotional disturbance . . . ." 720 ILCS

sec. 5/9-1(c)(2). Under Illinois law, a "defen-

dant is under the influence of an extreme emo-

tional disturbance when the defendant’s emotional

state at the time of the murder is at such a

fragile point as to leave him or her with little

to no emotional control." People v. Evans, 708

N.E.2d 1158, 1166 (Ill. 1999).

/2 Because Foster filed his petition on January 16,

1997, the AEDPA applies. Williams v. Taylor, 120

S. Ct. 1479, 1486 (2000). He argues that the date

he sought appointment of counsel (September 1,

1995) should constitute the initiation date of

his petition, but we have rejected this argument

before and now do so again. Gosier v. Welborn,

175 F.3d 504, 506 (7th Cir. 1999).

/3 720 ILCS sec. 5/9-1(c) provides:

Mitigating factors may include but need not be

limited to the following:

(1) the defendant has no significant history of

prior criminal activity;

(2) the murder was committed while the defendant

was under the influence of extreme mental or

emotional disturbance, although not such as to

constitute a defense to prosecution;

(3) the murdered individual was a participant in

the defendant’s homicidal conduct or consented to

the homicidal act;

(4) the defendant acted under the compulsion of

threat or menace of the imminent infliction of

death or great bodily harm;

(5) the defendant was not personally present

during the commission of the act or acts causing

death.

/4 We consider Dr. Rossiter’s testimony only to the

extent it indicates what he told Foster’s attor-

neys concerning what his testimony would have

been had he testified at the sentencing hearing.

Considering anything else would be an impermissi-

ble use of hindsight. See Strickland, 466 U.S. at

689.

/5 At the hearing he had no recollection one way or

the other whether thirteen years earlier he

talked to the defense attorneys about these pros

and cons.

/6 One might argue that defense counsel should have

gambled on presenting Dr. Rossiter’s testimony,

as Foster already had a dismal case and had

little to lose. While it’s true that the sentenc-

ing judge may have inferred from the depravity of

the crime itself that Foster possessed some of

the attributes which Dr. Rossiter ascribed to

him, Dr. Rossiter would have provided an expert

opinion that Foster was a fundamentally flawed

individual whose characteristics included a

predisposition to violence and an inability to

feel remorse. Our review of the sentencing hear-

ing transcript indicates that no other witness

explicitly made these assertions.

Rovner, Circuit Judge, concurring in part and

dissenting in part. I respectfully dissent

because I believe the majority has failed to give

any deference to the fact-findings of the dis-

trict court, instead ignoring the evidentiary

hearing in its entirety and applying de novo

review. Federal Rule of Civil Procedure 52 (a)

provides that "[f]indings of fact, whether based

on oral or documentary evidence, shall not be set

aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial

court to judge of the credibility of the witness-

es." See also Anderson v. City of Bessemer City,

North Carolina, 470 U.S. 564, 573-76 (1985);

Moffat v. Gilmore, 113 F.3d 698, 700 (7th Cir.

1997) (for a habeas petition, the district

court’s findings of fact are reviewed for clear

error and conclusions of law are reviewed de

novo); Bocian v. Godinez, 101 F.3d 465, 468 (7th

Cir. 1996) (same). Here, the district court heard

the testimony of Foster’s original defense attor-

neys as well as Dr. Rossiter. After listening to

the attorneys themselves, the district court

concluded that Foster’s attorneys did not make a

strategy decision at all regarding whether to

call Dr. Rossiter. On the contrary, the court

concluded, "Indeed, it does not appear that

counsel made a ’decision’ not to offer Dr. Rossi-

ter, but rather simply succumbed to the fact that

they were not prepared to do so." Foster v.

Gilmore, 35 F.Supp.2d 626, 632 n.11 (N.D. Ill.

1999). Implicit in this finding is the district

court’s conclusion that Foster’s attorneys were

not credible at the evidentiary hearing when they

testified that they decided on balance that Dr.

Rossiter’s testimony would harm Foster more than

help him. The district court concluded that the

attorneys’ failure to consult a psychiatric

expert prior to or during the trial in order to

lay the groundwork for demonstrating extreme

emotional disturbance was "inexplicable" and

"wholly ineffective." Id., 35 F.Supp.2d at 630.

The subsequent failure to present Dr. Rossiter’s

testimony was "inexcusable," according to the

district court. Id., 35 F.Supp.2d at 631.

Without pointing to any flaws in the reasoning

and findings of the district court, the majority

opines that "the hearing before the district

court . . . left something to be desired." Ante

at 10. The majority concludes that the hearing

"supports the conclusion of the Illinois Supreme

Court that the decision not to call Dr. Rossiter

was a matter of reasonable trial strategy." Id.

Of course, there was no evidentiary hearing at

all in the state court, and so it is unclear on

what evidence the Illinois Supreme Court based

this conclusion and even more unclear why we

should uphold it. Instead of deferring to the

district court’s findings of fact following a

full evidentiary hearing, the majority takes a

lengthy tour through the original sentencing

transcript, concluding from the cold record,

contrary to the credibility findings of the

district court, that "not calling Dr. Rossiter

was entirely reasonable." Ante at 14. Again, the

district court found, as a matter of fact, that

Foster’s counsel made no reasoned decision at

all, but rather "succumbed" to unpreparedness. We

cannot set aside that finding unless we have a

strong conviction that the district court commit-

ted clear error. Anderson, 470 U.S. at 573 ("The

reviewing court oversteps the bounds of its duty

under Rule 52(a) if it undertakes to duplicate

the role of the lower court."). The majority has

supplied no reason to believe the district court

clearly erred.

It should go without saying that counsel’s

failure, due to lack of preparation, to present

the only statutory mitigating factor that applied

to Foster constitutes deficient performance. See

Eddmonds v. Peters, 93 F.3d 1307, 1324 (7th Cir.

1996) (Flaum and Rovner concurring), cert. de-

nied, 520 U.S. 1172 (1997). Counsel in a capital

case is obliged to mount a "significant effort,

based on reasonable investigation and logical

argument" in order to mitigate a client’s punish-

ment. Id., 93 F.3d at 1323-24 (quoting Kubat v.

Thieret, 867 F.2d 351, 369 (7th Cir. 1989), cert.

denied, 493 U.S. 874 (1989)). When it is apparent

that the client has some mental condition that

warrants further investigation, the failure to

investigate is ineffective assistance. Id. (cit-

ing Stewart v. Gramley, 74 F.3d 132, 135 (7th

Cir. 1996), cert. denied, 519 U.S. 838 (1996)).

Dr. Rossiter was not contacted by defense counsel

until June 7, 1985, a few hours after the jury

returned its verdict of guilty and a few days

before the trial court commenced proceedings to

determine Foster’s eligibility for the death

penalty. Dr. Rossiter began his examination of

Foster on June 8, 1985. The hearing in mitigation

and aggravation began on June 11, 1985, immedi-

ately following the court’s determination that

Foster was death penalty eligible. The trial

court allowed a short continuance to allow Dr.

Rossiter to complete his examination of Foster,

and to write his report. On June 25, 1985, the

hearingconcluded and the trial court sentenced

Foster to death.

James Foster suffers from borderline paranoid

schizophrenia, schizoid personality, explosive

personality disorder and antisocial personality

disorder. He also suffered from depression,

brought on by the death of his mother approxi-

mately five months before he committed this

crime. He has a long history of drug and alcohol

abuse, and at the time of the offense, he was

under the influence of alcohol, cocaine and

marijuana. Foster has a history of serious head

injuries sustained in 1969, 1975 and 1981. The

sentencing court never heard any of this evidence

because Foster’s counsel did not call Dr. Rossit-

er to testify at the hearing in mitigation. Dr.

Rossiter did testify before the district court,

and the district court found him to be highly

credible. Dr. Rossiter testified that defense

counsel never asked him at the time of the

sentencing hearing to determine whether Foster

was under an "extreme emotional disturbance," a

statutory factor in mitigation in Illinois. See

Eddmonds, 93 F.3d at 1325 (attorney essentially

abdicated his duty to make reasonable inquiry of

mitigating circumstances where, among other

things, he never asked a mental health expert to

render an opinion on whether the defendant suf-

fered a mental disturbance at the time of the

crime when other information pointed to past

psychological problems) (Flaum and Rovner concur-

ring). Dr. Rossiter testified in the district

court that, had he been asked, he would have

answered that Foster was suffering from an ex-

treme emotional disturbance at the time of the

crime. When defense counsel knew that the evi-

dence against his client was overwhelming, indeed

when defense counsel admitted in closing argu-

ments that the defendant killed the woman he

loved, it was patently clear that the only issue

for the finder of fact to resolve was the defend-

ant’s mental state at the time of the crime./1

Under these circumstances, to fail to consult a

mental health expert earlier is inexplicable and

constitutes ineffective assistance of counsel.

The subsequent failure to ask Dr. Rossiter the

only relevant question, whether the defendant was

under an extreme emotional disturbance at the

time of the crime, demonstrates that Foster was

essentially without counsel for the purposes of

the sentencing hearing.

The question remains whether Foster was preju-

diced by his attorneys’ ineffective assistance at

sentencing. Under Strickland, Foster must show

that there is a reasonable probability that, but

for his attorneys’ errors, the result of the

proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 695 (1984). "[A]

defendant need not show that counsel’s deficient

conduct more likely than not altered the outcome

in the case." Id., 466 U.S. at 693. Rather, "[a]

reasonable probability is a probability suffi-

cient to undermine confidence in the outcome."

Id., 466 U.S. at 694.

The district court found that because extreme

emotional disturbance is a factor in mitigation

that the trial court must consider under the

statute, and because Foster had no other effec-

tive evidence in mitigation, he was prejudiced by

this failure. I agree. Illinois law provides

that:

The court shall consider . . . any aggravating

and any mitigating factors which are relevant to

the imposition of the death penalty. . . .

Mitigating factors may include but need not be

limited to the following:

(1) the defendant has no significant history of

prior criminal activity;

(2) the murder was committed while the defendant

was under the influence of extreme mental or

emotional disturbance, although not such as to

constitute a defense to prosecution;

(3) the murdered individual was a participant in

the defendant’s homicidal conduct or consented to

the homicidal act;

(4) the defendant acted under the compulsion of

threat or menace of the imminent infliction of

death or great bodily harm;

(5) the defendant was not personally present

during commission of the act or acts causing

death.

720 ILCS sec. 5/9-1.

The trial court considered the statutory miti-

gating factors one by one, concluding that there

was no evidence supporting mitigation under any

of these theories. The trial court then consid-

ered non-statutory evidence presented, which

consisted entirely of statements by friends and

family members regarding Foster’s more redeeming

personal qualities. The evidence was thin. In-

deed, the majority recognizes the flimsy nature

of the mitigation evidence, noting that "[t]he

mother (not his wife) of two of his six children

testified that his generosity occasionally en-

tailed the provision of financial support for the

two children." Ante at 4. Other evidence present-

ed included testimony by Foster’s father and

uncle about Foster’s religious convictions, and

testimony by Foster’s twelve-year-old son that

his father was a "nice man" who played basketball

with him, took him on vacations and taught him

about the Bible. The trial court, after finding

no statutory mitigating factors present, stated,

"I listened with interest to Mr. Giampoli’s so-

called nonstatutory mitigating factors. And I

find none of those to be of adequate mitigation

to change this situation." Sentencing Tr. June

25, 1985 at 62. Foster was effectively without

any evidence in mitigation. "Without a reasonable

showing of mitigation by the defense, the court

had no choice: under the Illinois death penalty

scheme, if no sufficient mitigating factors are

found, ’the court shall sentence the defendant to

death.’" Hall v. Washington, 106 F.3d 742, 752

(7th Cir. 1997), cert. denied, 522 U.S. 907

(1997) (citing 720 ILCS 5/9-1(h)).

The majority has adequately detailed the evi-

dence in aggravation. Against this, the trial

court weighed nothing. Foster’s attorneys testi-

fied before the district court that they feared

Dr. Rossiter’s testimony on cross-examination

would have harmed rather than helped Foster. It

is difficult to see how it could have harmed him.

The district court was already well aware of

Foster’s tendency toward explosive anger and

aggressive physical outbursts. Dr. Rossiter’s

testimony would have provided the only explana-

tion for this behavior, the only evidence that

Foster suffers from a number of serious psycho-

logical problems. The district court concluded:

In the instant case, having heard Dr. Rossiter’s

testimony at the evidentiary hearing, in which he

was subjected to skillful cross-examination, this

court concludes that his testimony would have

demonstrated the statutory mitigating factor of

extreme mental or emotional disturbance. This

court finds that Dr. Rossiter was highly credible

and that his testimony was effective and persua-

sive. The failure to present this testimony at

the sentencing hearing was inexcusable.

Foster, 35 F.Supp.2d at 631 (footnote omitted).

The court commented that Dr. Rossiter "convinc-

ingly defended his conclusion that petitioner was

acting under an extreme emotional disturbance."

Id., 35 F.Supp.2d at 631 n.9. The district court

also noted that Dr. Rossiter testifies for the

prosecution two-thirds to three-quarters of the

time.

It is difficult to imagine how Dr. Rossiter’s

testimony would not have affected the sentencing

court. Again, we need not find that the sentenc-

ing court would more likely than not have sen-

tenced Foster to life rather than death. Strickl-

and, 466 U.S. at 694. We need only find that Dr.

Rossiter’s testimony undermines our confidence in

the outcome. Id. My confidence is undermined. I

therefore respectfully dissent.

/1 I agree with the majority that defense counsel’s

reference to Foster killing the woman he loved

did not constitute deficient performance under

the circumstances. Therefore, I concur in this

part of the majority’s opinion. I also concur

with the majority’s conclusion that the AEDPA

applies to Foster’s petition.