Conner, Kevin A. v. McBride, Daniel R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1951

KEVIN A. CONNER,

Petitioner-Appellant,

v.

DANIEL MCBRIDE, Superintendent,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 99 C 1923—Sarah Evans Barker, Judge.

____________

ARGUED JANUARY 16, 2004—DECIDED JULY 20, 2004

____________

Before EASTERBROOK, KANNE, and ROVNER, Circuit

Judges.

KANNE, Circuit Judge. This habeas corpus appeal comes

to us following Kevin Conner’s October 7, 1988 conviction

for three murders in Indiana. The jury recommended death

for the killings and, subsequently, the state court judge

sentenced Conner to two death sentences and a term of

60 years on November 3, 1988. After exhausting his state

remedies, see Conner v. State, 580 N.E.2d 214, 217 (Ind.

1991), cert. denied, 503 U.S. 946 (1992) (“Conner I”); Conner

v. State, 711 N.E.2d 1238 (Ind. 1999), cert. denied, 531 U.S.

829 (2000) (“Conner II”), Conner then filed a petition for

2 No. 03-1951

federal habeas corpus relief, which the district court denied,

Conner v. Anderson, 259 F. Supp. 2d 741, 769 (S.D. Ind.

2003) (“Conner III”).

I. Background

The facts surrounding Conner’s crimes, which occurred on

the south side of Indianapolis, are essentially undisputed.

Sometime during the early morning of January 26, 1988,

Conner, Tony Moore, Bruce Voge, and Steve Wentland were

drinking at Moore’s house. When Conner, Moore, and

Wentland went for a drive in Wentland’s car, Voge stayed

behind at the house. During the drive, an argument broke

out between Moore, who was seated in the front, and

Wentland, who was driving. As a result, Moore stabbed

Wentland with Conner’s knife, which caused Wentland to

abandon the car and run. Conner, armed with the knife,

pursued Wentland on foot, while Moore took control of the

car and ran Wentland down. After Wentland was down,

Conner beat him with his fists and stabbed him multiple

times with the knife, eventually killing him.

Conner and Moore then drove to Conner’s place of em-

ployment, where they awoke Conner’s employer and were

given access to a warehouse. Another argument ensued be-

tween Conner and Moore about what had just happened

and what they should do. During the argument, Conner ob-

tained his sawed-off shotgun, shot, and killed Moore. This

reawakened Conner’s employer, who confronted Conner as

he exited the warehouse building. Conner replied that “he

had to off Tony.” Conner next left the warehouse and drove

to Moore’s house, where he shot and killed Voge, while Voge

lay on the couch.

Conner then went about disposing of Moore’s body with

the aid of various friends, abandoned Wentland’s automo-

bile, and fled the area. He was apprehended in Texas on

No. 03-1951 3

January 30, 1988 and returned to Indiana to face murder

charges in the Marion County Superior Court in

Indianapolis.

The trial lasted from October 3 to 7, 1988, and the jury

found Conner guilty of each killing. The penalty phase

hearing was held on October 9, and the jury recommended

death, as sought by the state. Then on November 3, the

state court sentenced Conner to death for the murders of

Voge and Moore, and to a term of 60 years for the murder

of Wentland.

On direct appeal in state court, Conner claimed fifteen

errors had occurred in connection with his trial and sen-

tencing, including that his confession was improperly ad-

mitted because it was obtained in violation of his Fifth

Amendment rights, as outlined in Miranda v. Arizona, 384

U.S. 436 (1966), and its progeny. Conner I, 580 N.E.2d at

216, 219. The Supreme Court of Indiana ultimately af-

firmed the lower courts’ rejection of all these arguments. Id.

at 221.

Conner next sought post-conviction relief, which under

Indiana law is a remedy limited to issues not known at trial

or not available on direct appeal. See Conner II, 711 N.E.2d

at 1244. He again asserted numerous errors, including: (1)

his confession was obtained through manipulation, without

regard to his mental disorders, and was therefore improp-

erly admitted at trial;1 (2) an improper ex parte communica-

tion between the jury and a bailiff took place during

penalty-phase deliberations; and (3) he was denied effective

assistance of trial counsel. Id. at 1244-45, 1247-48. After

hearing testimony and receiving other evidence as to many

of the issues raised, the original post-conviction court

denied Conner’s petition for relief. On appeal, because the

1

As to why the post-conviction court considered the admissibility

of Conner’s confession for a second time, see infra note 3.

4 No. 03-1951

Indiana Supreme Court did not find that the evidence

unmistakably and unerringly led to a conclusion contrary

to that reached by the post-conviction court below, it

affirmed the denial of Conner’s petition with respect to all

issues. See id. at 1259.

Finding no relief in the state courts, Conner filed a pe-

tition for habeas corpus relief in federal district court.

Conner III, 259 F. Supp. 2d at 752. Among other myriad

issues, Conner again raised the propriety of the admission

of his confession at trial, the alleged ex parte communica-

tion between a bailiff and the jury, and the ineffective

assistance of trial counsel. Id. After an exhaustive analysis

of each of the issues raised by Conner, the district court

denied relief. Id. at 769. He now appeals this denial, but

only with respect to the three issues listed above. And for

the reasons that follow, we affirm.

II. Analysis

A. Legal Standards

A federal court may grant habeas relief only if the pe-

titioner demonstrates that he is in custody “in violation of

the Constitution or laws . . . of the United States.” 28 U.S.C.

§ 2254(a) (1996). In this case, the particular contours of our

habeas review are restricted by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh

v. Murphy, 521 U.S. 320 (1997).

However, to even raise any claim of error in habeas, state

remedies must be exhausted. Mahaffey v. Schomig, 294

F.3d 907, 914 (7th Cir. 2002). In other words, each claim of

error must be raised first in state court, Breard v. Greene,

523 U.S. 371 (1998), so that the state courts have an

opportunity to correct constitutional violations, Duckworth

v. Serrano, 454 U.S. 1, 3 (1981). If a petitioner fails to

exhaust, and the court to which he would have been

No. 03-1951 5

permitted to present his claims would now find such claims

procedurally barred, then those claims are procedurally

defaulted for habeas purposes. Coleman v. Thompson, 501

U.S. 722, 729 n.1 (1991). Likewise, procedural default also

occurs if the state court decision rests on a state procedural

rule that is independent of the federal question and ade-

quate to support the judgment. Id. at 729; see also Ford v.

Georgia, 498 U.S. 411, 423-24 (1991) (explaining when such

a rule is “adequate”). However, in either situation, all may

not be lost—a federal court may still hear a petitioner’s

claim if he can demonstrate either (a) cause for the default

and prejudice (i.e., the errors worked to the petitioner’s

“actual and substantial disadvantage,” United States v.

Frady, 456 U.S. 152, 170 (1982) (emphasis in original)); or

(b) that failure to consider his claim would result in a

fundamental miscarriage of justice (i.e., a claim of actual

innocence, Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). See

McCleskey v. Zant, 499 U.S. 467, 493-95 (1991); Coleman,

501 U.S. at 750. Here, neither exhaustion nor procedural

default are materially at issue with respect to Conner’s

three claims, with one minor exception discussed later.

Turning to the substantive restrictions AEDPA places

upon habeas review, when a claim has been adjudicated by

the state courts on the merits, that is, substantively and not

procedurally, see, e.g., Green v. Johnson, 116 F.3d 1115,

1121 (5th Cir. 1997), a writ should be granted only if the

state court’s decision was “contrary to” clearly established

federal law as determined by the Supreme Court, §

2254(d)(1), involved an “unreasonable” application of the

same, id., or was based upon an “unreasonable” determina-

tion of the facts in light of the evidence presented in the

state court proceedings, § 2254(d)(2).

These restrictions have been further explained by nu-

merous cases, a handful of which are noted herein. First, a

state court decision is “contrary to” federal law if the state

court either incorrectly laid out governing Supreme Court

6 No. 03-1951

precedent, or, having identified the correct rule of law,

decided a case differently than a materially factually

indistinguishable Supreme Court case. Williams v. Taylor,

529 U.S. 362, 405-06, 412-13 (2000); see also Hammer v.

Karlen, 342 F.3d 807, 810 (7th Cir. 2003).

Next, a state court’s application of a correct statement of

federal law is “unreasonable” if it is objectively so, and not

merely erroneous or incorrect. Williams, 529 U.S.at 410-12;

A.M. v. Butler, 360 F.3d 787, 794-95 (7th Cir. 2004) (citing

Wiggins v. Smith, 539 U.S. ___, 123 S. Ct. 2527, 2535

(2003)). Specifically, a state court’s decision “minimally

consistent with the facts and circumstances of the case” is

not unreasonable, Hennon v. Cooper, 109 F.3d 330, 335 (7th

Cir. 1997), while a determination “lying well outside the

boundaries of permissible differences of opinion” is,

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), cited

in Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003).

Last, factual determinations of a state court are presumed

to be correct and hence not “unreasonable,” unless a

petitioner can show otherwise by clear and convincing

evidence. See Ward, 334 F.3d at 704 (citing 28 U.S.C.

§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 339-42

(2003)); see also Sanchez v. Gilmore, 189 F.3d 619, 623 (7th

Cir. 1999) (calling this a “rigorous burden of proof”).

Whether a state ruling runs afoul of these AEDPA stand-

ards is a legal determination, and, as such, we review the

conclusions of the district court de novo. Ward, 334 F.3d

at 704; see Sweeney v. Carter, 361 F.3d 327, 330 (7th Cir. 2004)

(citing Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999)).

Consequently, our analysis focuses primarily upon the de-

cisions and factual findings of the Marion County Superior

No. 03-1951 7

Court,2 the court which heard Conner’s original petition for

post-conviction relief (“post-conviction court” or “PCR court”).3

2

The Marion County Superior Court was the situs of both

Conner’s trial and his initial post-conviction review proceedings.

3

The determinations of the PCR court clearly should be the focus

of our AEDPA analysis with respect to the two claims which were

raised for the first time in Conner’s petition for post-conviction

relief, namely, that there was an improper ex parte communica-

tion between a bailiff and the jury and that he suffered ineffective

assistance of trial counsel. But see also infra notes 7, 10, and 11

(explaining that we also looked to the Indiana Supreme Court’s

holdings as to three subsidiary ineffective assistance of counsel

issues where the PCR court did not make any express findings).

However, Conner challenged the admissibility of his confession

both on direct appeal and in his post-conviction petition for relief.

Thus, it would seem that we would need to analyze the decisions

of both the trial court, which heard and denied Conner’s original

motion to suppress, and the PCR court’s denial of relief with

respect to his confession. But this is not so.

As the Indiana Supreme Court noted in its review of the post-

conviction court’s denial of relief, the PCR court could have re-

fused to consider the admissibility of Conner’s confession on res

judicata grounds, since on direct appeal the Indiana Supreme

Court, see Conner I, 580 N.E.2d at 219, already determined that

the trial court committed no error when it admitted Conner’s con-

fession. Conner II, 711 N.E.2d at 1247 (citing Minnick v. State,

698 N.E.2d 745, 760 (Ind. 1998)). Instead, the PCR court consid-

ered the issue fully on its merits, apparently unrestricted by any

confining standards of review, took into account all old and new

evidence, as presented by both the state and Conner, and ulti-

mately rejected this claim. See id. Therefore, we focus our AEDPA

analysis with respect to the admissibility of Conner’s confession

solely upon the factual findings and conclusions of the post-

conviction court.

8 No. 03-1951

B. Application

1. Confession

After his arrest, Conner signed written waivers of his

Miranda rights and a written confession, and agreed to be

videotaped while giving an incriminating statement to

Indianapolis police detectives Green and Stamm. At no time

has he challenged the voluntariness of his Miranda waiv-

ers.4 But at trial, on direct appeal, throughout his state

post-conviction proceedings, and now in his petition for

habeas relief, Conner has posited that his confession was

involuntary. All state courts considering this issue have

disagreed with Conner, and he provides us here with no

reason to conclude that the judgment of the Indiana post-

conviction court was unreasonable.

Before turning to our substantive analysis, we must

dispense with Conner’s misguided notion that we should

review the PCR court’s ruling de novo, unrestricted by

AEDPA standards. This is so, he asserts, because neither

the trial court nor the PCR court expressly laid out the

federal law applicable to the admissibility (i.e., voluntari-

ness) of confessions, as established by Miranda and its

progeny. However, so long as a habeas petition is filed after

AEDPA’s effective date and a state court arguably ad-

dressed the claim, as is the case here, federal review is

inescapably circumscribed by the Act. The question in this

case is not whether AEDPA applies, as it most certainly

does, but instead whether the post-conviction court’s find-

4

Miranda v. Arizona, 384 U.S. 436 (1966), declared that an indi-

vidual has a Fifth and Fourteenth Amendment right to have

counsel present during custodial interrogation. Edwards v.

Arizona, 451 U.S. 477, 482 (1981). A defendant may waive his en-

titlement to the rights articulated in Miranda “provided the

waiver is made voluntarily, knowingly, and intelligently.” 384

U.S. at 444.

No. 03-1951 9

ings with respect to Conner’s confession can pass “AEDPA

muster,” because none include a statement of, or explicitly

apply, federal law.

Although we can imagine a scenario in which a state

court’s unexplained ruling would present such a maze of

uncertainty as to what law was applied and/or what factual

findings were made that any challenge to the ruling would

be hopelessly confounded, such is not the case here. As we

explain below, the post-conviction court’s analysis and

ultimate decisions comported with federal jurisprudence.

Cf. Edmunds v. Deppisch, 313 F.3d 997, 999-1000 (7th Cir.

2002) (holding that a state trial court’s evidentiary ruling

excluding demeanor evidence was a reasonable—although

possibly incorrect—application of federal law and thus

constitutional where the state court based its ruling solely

upon state evidence law, repeatedly refused to address the

constitutional issue expressly, and nowhere referred to or

applied federal law, because the trial court’s reasoning

mirrored the balancing test laid out in Fed. R. Evid. 403).

Perhaps guided by the district court’s application of

AEDPA to his confession claim, see Conner III, 259 F. Supp.

2d at 759, Conner does mention the applicable AEDPA

standards in the last sentence of the relevant section of his

brief to this court. However, he states only that “the state

court rulings were clearly unreasonable determinations . . .

and/or contrary to” applicable federal law. Conner nowhere

explicitly challenges any of the factual findings of the PCR

court. At the end of his argument, Conner simply refers us

to his statement of facts contained in his brief for informa-

tion concerning Conner’s confession. Arguably, we could

consider his confession claim waived in the absence of fully

developed legal arguments. Nevertheless, this is a review of

a death sentence and, in this instance, prudence directs us

to address every argument raised explicitly or implicitly by

Conner.

10 No. 03-1951

In evaluating the voluntariness of a waiver or confession,

a court must consider the totality of the circumstances. See

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Spe-

cifically, a confession is “involuntary” only if circumstances

demonstrate that police coercion or overreaching overbore

the accused’s will and caused the confession. See Dickerson

v. United States, 530 U.S. 428, 434 (2000) (discussing

cases). Moreover, such coercion or overreaching is a nec-

essary predicate to a finding of involuntariness. United

States v. Abdulla, 294 F.3d 830, 836 (7th Cir. 2002). Put

differently, a “ ‘confession is voluntary if, in light of the

totality of the circumstances, the confession is the product

of a rational intellect and free will and not the result of

physical abuse, psychological intimidation, or deceptive

interrogation tactics that have overcome the defendant’s

free will.’ ” Id. (quoting United States v. Dillon, 150 F.3d

754, 757 (7th Cir. 1998)). In applying the totality test, we

have identified a variety of factors which a court may con-

sider to assess voluntariness, including but not limited to:

whether the defendant was read his Miranda rights; the

individualized characteristics of the defendant (i.e., age,

intelligence level, education, mental state); interrogation

conditions (i.e., duration, environment, access to restroom

facilities and food); and the conduct of law enforcement

officers (i.e., use of physical punishment). United States v.

Ceballos, 302 F.3d 679, 694 (7th Cir. 2002); United States v.

Brooks, 125 F.3d 484, 492 (7th Cir. 1997). See generally

Schneckloth, 412 U.S. at 226, quoted in Dickerson, 530 U.S.

at 434.

The post-conviction court made numerous factual findings

with respect to Conner’s confession, which required the

court to weigh and evaluate the extensive evidence pre-

sented by both the state and Conner. Ultimately, the court

concluded that the confession was properly admitted. The

court thus applied the totality test, which Schneckloth,

supra, established as the appropriate constitutional test for

No. 03-1951 11

voluntariness. Therefore, even if the PCR court’s ruling was

incorrect, so long as it was reasonable (i.e., within the

boundaries of permissible differences of legal opinion), there

is no basis for deeming it unconstitutional. Cf. Edmunds,

313 F.3d at 999.

Conner challenges the constitutionality of his confession

based upon the following assertions: (a) he requested an

attorney numerous times; (b) Green and Stamm used a

criminal codebook to dupe Conner into thinking that he was

only guilty of manslaughter; (c) Green and Stamm “tricked

and cajoled” Conner into signing an incriminating state-

ment and agreeing to have his confession videotaped; and

(d) Conner’s confession omitted key information and

conflicted in material respects with incontrovertible facts

about the killings.

a. Conner’s request for an attorney and the use

of a criminal codebook during Conner’s inter-

rogation

Credibility determinations by the PCR court doom

Conner’s first two assertions. Specifically, the court deter-

mined that Conner never requested an attorney and that

Detective Green used a law book to discuss legal concepts

with Conner, not to mislead him. These determinations are

presumed correct unless overcome by clear and convincing

evidence to the contrary. See 28 U.S.C. § 2254(e)(1). No such

evidence has been shown. Detectives Green and Stamm

testified that Conner never requested an attorney. Green

testified that he used the criminal codebook to discuss legal

concepts with Conner. And the only evidence Conner offered

to support his version of the disputed events was his own

testimony. Clearly, the PCR court credited the detectives’

testimony and disbelieved Conner’s self-serving account.

Absent more, Conner’s assertions are not enough to disturb

the PCR court’s findings.

12 No. 03-1951

b. “Trickery” by Detectives Green and Stamm

We next address Conner’s assertion that the police offi-

cers “tricked and cajoled” him into confessing and agreeing

to videotape an incriminating statement. This contention

amounts to a claim that the post-conviction court unreason-

ably determined that Conner’s confession was voluntary.

Because the test for voluntariness is a totality of the

circumstances test, see supra, we consequently must

determine whether the PCR court’s weighing of the evi-

dence was so incredible as to be “well outside the bound-

aries of permissible differences of opinion.” See Hardaway,

302 F.3d at 762. In this case, we can easily say that the

PCR court was not unreasonable when it determined that

the totality of the circumstances mediated in favor of the

conclusion that Conner’s confession was voluntary.

First, Conner had been apprised of his constitutional

rights (i.e., read his Miranda rights) while incarcerated

in Texas and again after his arrival in Indiana. He then

voluntarily signed multiple waivers of his rights prior to

being questioned and before he gave his videotaped state-

ment. Conner stated during questioning that he understood

his rights and confirmed his awareness of his situation and

his option to decline to answer questions or make a state-

ment until he had spoken with an attorney.

Second, at the time of his confession, Conner was an

adult, twenty-two years of age. Third, the interrogation

lasted approximately three hours, at most. Fourth, during

the interrogation Conner was provided with food and drink,

allowed to use the restroom, given a pack of Camel ciga-

rettes upon request, and when it was discovered that the

heat was malfunctioning in the interrogation room, he was

moved to a different room. Fifth, nowhere does Conner aver

that he was physically harmed during the interrogation.

Last, because involuntary confessions are “to an unas-

certained extent” untrustworthy, Rogers v. Richmond, 365

U.S. 534, 541 (1961); see also Buckley v. Fitzsimmons, 20

F.3d 789, 795 (7th Cir. 1994) (“Confessions wrung out of

No. 03-1951 13

their makers may be less reliable than voluntary confes-

sions . . . .”), we consider the reliability of Conner’s confes-

sion as a factor in the totality test. And we cannot say

the post-conviction court was unreasonable when it found

that Conner’s confession was reliable. Conner bases his

unreliability argument on the fact that portions of his

confession were incompatible with certain incontrovertible

facts ascertained at trial. However, the PCR court implicitly

determined that despite discrepancies between the details

in Conner’s confession and particular facts adduced at trial,

the principal facts provided in Conner’s confession were

corroborated. In addition, the court credited the testimony

of Detectives Green and Stamm, wherein they both ex-

pressed their belief that Conner had been truthful when he

confessed. The evidence in the record supports these

findings, and Conner has not pointed us to any other evi-

dence which clearly and convincingly shows that the PCR

court unreasonably determined that Conner’s confession

was reliable.

To summarize, the foregoing facts do not support a find-

ing that Conner’s confession was anything but voluntary.

Furthermore, we have repeatedly held that “a law-en-

forcement agent may ‘actively mislead’ a defendant in order

to obtain a confession, so long as a rational decision re-

mains possible.” Ceballos, 302 F.3d at 695 (quoting United

States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990));

Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992)

(false statement that a witness had seen the defendant’s

vehicle in the alley in which the victim had been raped was

not coercive without more); see also United States v. Orso, 266

F.3d 1030, 1039 (9th Cir. 2001) (false statement that witness

had seen her with a gun was not coercive); Lucero v. Kerby,

133 F.3d 1299, 1311 (10th Cir. 1998) (lie regarding finger-

print evidence was not coercive). Conner cannot point this

court to any specific facts which demonstrate how he was

“tricked” or “cajoled” by Detectives Green and Stamm.

However, he obtusely argues that his alleged mental defect

14 No. 03-1951

(an “organic” personality/thought disorder discussed in detail

later in this opinion) made him especially susceptible to

confusion and trickery and that the detectives’ “misuse” of

the criminal codebook, discussed supra, rendered his

confession involuntary.

First, although we explicitly rejected this assertion above,

for argument’s sake we will assume that the detectives did

in fact use a criminal codebook to affirmatively misrepre-

sent Indiana criminal law to Conner. But such a basis is

insufficient to deem a state court’s admission of a confession

unreasonable under AEDPA when a defendant has already

voluntarily waived his Miranda rights. In Jackson v. Frank,

348 F.3d 658, 663-65 (7th Cir. 2003), we considered whether

a state court unreasonably applied federal law when it

admitted a defendant’s confession despite a police officer’s

misstatement of state law, which preceded the defendant’s

Miranda waiver and concerned the availability of a public

defender. We pointed out that the United States Supreme

Court has not clarified whether a legal misstatement by a

police officer would per se make a subsequent Miranda

waiver involuntary, and that at least one other court of

appeals has held that, in and of itself, such a misstatement

does not. Id. (citing Duckworth v. Eagan, 492 U.S. 195, 203-

04 (1989); Colorado v. Spring, 479 U.S. 564, 576 n.8 (1987);

Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002) (en banc)).

Consequently, we held that the state court’s decision to

allow the confession was not unreasonable. Id. at 665. And

because in Jackson we could not deem “unreasonable” the

state court’s determination that an officer’s misrepresenta-

tion of the law prior to a Miranda waiver did not vitiate the

voluntariness of the waiver, then we cannot hold in this

case that the PCR court was “unreasonable” in determining

that Conner’s confession was voluntary, solely because

police officers may have misrepresented state criminal law

after Conner’s indisputably voluntary Miranda waiver.

No. 03-1951 15

Second, the post-conviction court considered conflicting

evidence as to whether Conner suffered from a mental dis-

order or defect at the time of his interrogation. The court’s

implicit decision to credit the evidence which tended to

show that Conner did not suffer from any disorder or defect

is entitled to our deference, absent clear and convincing

evidence to the contrary. See, e.g., Marshall v. Lonberger,

459 U.S. 422, 432-33 (1983). Conner has not made such a

showing. Even if we credit Conner’s evidence of his mental

disorder at the time of his interrogation, in order to find

that the PCR court’s determination was unreasonable, we

would also have to find that the defect was of such magni-

tude as to render Conner so susceptible to trickery, decep-

tion, or other standard interrogation tactics (i.e., Conner

asserts that Green and Stamm encouraged him to confess

because it “is good for the soul”) that his free will was

overborne. The evidence here in no way supports such a

finding.

In conclusion, Conner has failed to present this court with

factors pertinent to the interrogation which would suggest

that the post-conviction court was well outside the realm of

permissible legal conclusions when it held there was no

coercive police activity which caused Conner’s will to be

overborne. Hence, the PCR court was reasonable in finding

that Conner’s confession was voluntary and that the trial

court’s admission of his statements to police and the

videotaped statement was not error. There is no basis under

AEDPA to support Conner’s habeas petition as to his

confession and the district court’s denial of relief was

proper.

2. Ex Parte Jury Communication

Conner next contends that his right to be present dur-

ing all stages of the prosecution against him was violated

16 No. 03-1951

when a jury question regarding the law was allegedly an-

swered by a bailiff during deliberations. The constitutional

right to “presence” derives from the Sixth Amendment’s

Confrontation Clause, and the Due Process Clause of the

Fifth and Fourteenth Amendments. Moore v. Knight, 368

F.3d 936, 940 (7th Cir. 2004); see Ellsworth v. Levenhagen,

248 F.3d 634, 640 (7th Cir. 2001) (citing Illinois v. Allen,

397 U.S. 337, 380 (1970); United States v. Gagnon, 470 U.S.

522, 526 (1985)). This right is implicated when there is a

reasonably substantial relation to the fullness of opportu-

nity to defend against the charge and to the extent that a

fair and just hearing would be thwarted by the defendant’s

absence. 248 F.3d at 640 (citing Verdin v. O’Leary, 972 F.2d

1467, 1482 (7th Cir. 1992) (citing Gagnon, 470 U.S. at 526

(1985)). Specifically, Snyder v. Massachusetts, 291 U.S. 97,

105-08 (1934), Kentucky v. Stincer, 482 U.S. 730, 745 (1987),

and Gagnon, 470 U.S. at 526, make clear that the defendant

must be present at “all important steps of the criminal

proceeding.” Small v. Endicott, 998 F.2d 411, 415 (7th Cir.

1993) (pointing out that not every stage of a criminal

proceeding is important and holding that a “defendant need

not be present at a pretrial hearing where only preliminary

matters of a procedural nature are at stake.”). In Indiana,

generally, with respect to questions posed by a deliberating

jury: “the proper procedure is for the judge to notify the

parties so they may be present in court and informed of the

court’s proposed response to the jury before the judge ever

communicates with the jury.” Rogers v. R. J. Reynolds

Tobacco Co., 745 N.E.2d 793, 795 (Ind. 2001) (citing cases).

Cf. Ind. Jury R. 28 (2003). In the criminal context, if an

improper communication occurs between a bailiff and the

jury, there is a “presumption of harm to the defendant that

the state must rebut to avoid reversal.” Baxter v. State, 727

N.E.2d 429, 434 (Ind. 2000) (quoting Alexander v. State, 449

N.E.2d 1068, 1074 (Ind. 1983)); see also Winters v. Miller,

274 F.3d 1161, 1168 (7th Cir. 2001). Reversal may be

No. 03-1951 17

avoided only if no harm or prejudice to the defendant

resulted. Baxter, 727 N.E.2d at 434. This is consistent with

the rule that an improper communication with a jury

(whether by a judge or court staff) may not be per se

unconstitutional if, upon inquiry into the fundamental

fairness of the trial as a whole, the improper communica-

tion was found to be harmless. Winters, 274 F.3d at 1168;

see also Ellsworth, 248 F.3d at 640-41; Verdin, 972 F.2d at

1482; United States ex rel. Tobe v. Bensinger, 492 F.2d 232,

238-39 (7th Cir. 1974), cited in Cramer v. Fahner, 683 F.2d

1376-87 (7th Cir. 1982). Cf. United States v. Degraffenried,

339 F.3d 576, 579-80 (7th Cir. 2003) (citing Fed. R. Crim.

Pro. 43; Rogers v. United States, 422 U.S. 35 (1975) (laying

out procedures for responding to jury questions in federal

criminal trials)).

Conner argues that because one or more jurors asked a

question regarding sentencing authority during penalty-

phase deliberations, because a bailiff provided an answer,

and because defense counsel was not present during this

communication, Conner was irreparably prejudiced. And

thus, he posits, his petition for habeas relief should be

granted.

One preliminary issue deserves our attention. Just

as Conner erroneously argued that we should consider his

confession claim de novo, he also mistakenly thinks that we

should review the facts underlying his ex parte jury commu-

nication claim de novo. He cites Weeks v. Angelone, 176 F.3d

249, 263 (4th Cir. 1999), aff’d on other grounds, 528 U.S.

225 (2000), for the proposition that “when a petitioner has

properly presented a claim to the state court but the state

court has not adjudicated the merits, . . . our review of

questions of law and mixed law and fact is de novo.”

Ignoring that Weeks is not binding upon this court, Conner

also overlooks the fact that Weeks addressed a state court’s

failure to address a claim on its merits when the state court

should have done so. This is easily distinguishable from the

18 No. 03-1951

instant case. Here, the post-conviction court made a finding

of pure fact, which obviated the need to rule upon the

substantive merits of Conner’s ex parte jury communication

claim. Thus, AEDPA circumscribes our review of the PCR

court’s factual determination that no ex parte jury commu-

nication occurred during deliberations. Absent a contrary

showing by clear and convincing evidence, this finding is

entitled to our deference, see 28 U.S.C. § 2254(e)(1), and we

need not reach the merits of Conner’s ex parte jury commu-

nication claim.5

The post-conviction court heard and evaluated testimony

from six jurors and two bailiffs regarding the alleged com-

munication. All the jurors who testified acknowledged that

there was some sort of communication which occurred

between at least one juror and a bailiff, but none could

testify definitively as to whether it occurred during delib-

erations. Although some jurors indicated that the communi-

cation concerned sentencing authority, most could not recall

any other salient details (i.e., which juror asked the ques-

tion, which bailiff responded, what the exact content of the

communication was). Juror Carter had the most factually

specific memory of the incident and testified that the bailiff

who responded to the question was white, female, middle-

aged, and heavyset. However, Carter provided conflicting

testimony regarding the timing of the communication, and

when pressed, indicated that she was “pretty sure” it

occurred after all deliberations had concluded.

The two bailiffs’ testimony was substantially similar to

the others’. Both indicated that in 1988, it was policy for the

5

We do note that if we found the PCR court’s factual determina-

tion unreasonable, then we would be free to analyze the substan-

tive merits of this issue de novo (i.e., under pre-AEDPA stan-

dards), as there would be no state court analysis to apply AEDPA

standards to.

No. 03-1951 19

jury to submit any questions it had in writing to the judge,

and for the judge to then address the question. Bailiff

Hurley, a male who was not specifically assigned to the

Conner trial, could not recall any details about the trial.

Bailiff De Moss, the only female bailiff who fit the physical

description given by juror Carter and who was assigned to

the Conner trial, testified that she did not remember

receiving or personally addressing any questions from the

jury. After hearing from all eight witnesses and considering

argument from both Conner and the state, the PCR court

held that no improper communication between the jury and

court personnel occurred during deliberations.

At most, the foregoing evidence demonstrates factual

ambiguity and disagreement regarding the timing of the

alleged communication. Put differently, it certainly does not

amount to clear and convincing proof that any such commu-

nication occurred during penalty-phase deliberations in

violation of Conner’s constitutional right to presence, and

Conner has thus failed to meet his burden under AEDPA.

Because it cannot be said that the post-conviction court’s

factual finding was unreasonable, we need not address the

substantive merits of Conner’s claim. The district court’s

denial of habeas relief with respect to the petitioner’s ex

parte jury communication claim was correct.

3. Ineffective Assistance of Trial Counsel

Finally, Conner argues that his Sixth Amendment right

to counsel was violated because his trial lawyers were

ineffective. The well-known legal principles which govern

such claims were established in Strickland v. Washington,

466 U.S. 668 (1984). For an ineffective assistance of counsel

claim to succeed, a petitioner must show that (1) counsel’s

performance was deficient; and (2) the deficiency prejudiced

his defense. More specifically, in order to be considered

deficient, representation must fall below “an objective

standard of reasonableness.” Id. at 688. The Supreme Court

20 No. 03-1951

has recently “declined to articulate specific guidelines for

appropriate attorney conduct and instead [ ] emphasized

that ‘[t]he proper measure of attorney performance remains

simply reasonableness under prevailing professional

norms.’ ” Wiggins, 539 U.S. at ___, 123 S. Ct. at 2535

(quoting Strickland, 466 U.S. at 688). In addition, the

performance of counsel under Strickland should be evalu-

ated from counsel’s perspective at that time, making every

effort to “eliminate the distorting effects of hindsight.” Id.

at 2536 (quoting 466 U.S. at 688); see also Kokoraleis v.

Gilmore, 131 F.3d 692, 696 (7th Cir. 1997). With respect to

the prejudice requirement, the petitioner 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 probabil-

ity sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, quoted in Benefiel v. Davis, 357

F.3d 655, 661 (7th Cir. 2004).

As with each of the first two issues addressed, because

this is a habeas petition, we do not apply the Strickland

standards directly, but instead ask whether the post-

conviction court’s factual findings and conclusions pass

AEDPA muster. Since the PCR court correctly laid out the

Strickland test, and since Conner does not point this court

to any United States Supreme Court case which is factually

indistinguishable from his own, he cannot argue that the

PCR court’s determinations were “contrary to” any clearly

established federal law. See 28 U.S.C. § 2254(d)(1).

Furthermore, although Conner does mention (once) the

“reasonableness” standard under § 2254(d)(1), he nowhere

meaningfully challenges the factual findings of the PCR

court. Instead, he simply reiterates and emphasizes the

facts which are most helpful to his claim, and then advo-

cates for a legal conclusion other than that reached by the

PCR court. Conner has not shown by clear and convincing

No. 03-1951 21

evidence that the PCR court’s factual determinations were

unreasonable. See 28 U.S.C. § 2254(e)(1).

Thus, the only question which we need address is whether

the post-conviction court’s application of Strickland was

“unreasonable,” 28 U.S.C. § 2254(d)(1). Under this highly

deferential AEDPA standard, to make a finding of unrea-

sonableness, we must conclude that the PCR court’s de-

terminations were “outside the boundaries of permissible

differences of opinion,” see Hardaway, 302 F.3d at 762,

and/or defy characterization as merely “minimally consis-

tent with the facts and circumstances of the case,” Hennon,

109 F.3d at 335 (emphasis added).

Before turning to the merits of Conner’s argument, we

briefly summarize what the record reveals about defense

counsels’ preparation and strategy with respect to the guilt

and penalty phases of Conner’s trial, and the evidence

which Conner introduced at the post-conviction hearing to

support his ineffective assistance claim.

a. Summary of counsels’ preparation and

strategy

Conner was represented by two court-appointed attorneys

during the guilt and penalty phases, Ricardo Mendez and

Steven Lazinsky. At the time of his trial in 1988, Mendez

had over ten years of criminal experience, including the

representation of capital defendants, and had received

training in capital defense. Lazinsky had prosecuted

murder cases, as well as either prosecuting or defending

approximately twenty Class A and B felony cases.

In preparation for Conner’s defense, the two attorneys

undertook substantial work and consulted with each other

regarding the case. Although Mendez, the attorney who was

initially designated as the lead attorney, did not in fact take

charge of Conner’s case, Lazinsky did fulfill that role. Trial

22 No. 03-1951

counsel sought some assistance from the Indiana Public

Defender Council and visited Conner on several occasions

to discuss his defense.

Counsel timely filed numerous motions, including a

motion to suppress Conner’s confession, perhaps the most

damning piece of evidence against Conner. Other motions

included: funding requests for an investigator and a mental

health evaluation by a psychiatrist of Conner’s choosing,

voir dire requests, a motion to dismiss the death penalty

information, and at least six motions to restrict the prosecu-

tion’s presentation of evidence and argument.

Specifically with respect to Conner’s mental health,

counsel received three reports from three separate eval-

uations. Two court-appointed doctors, Drs. Hull and

Schuster, concluded that Conner suffered from no mental

diseases or defects based upon an examination conducted by

Dr. Fredrickson. A third mental health examination was

later conducted by Dr. King at defense counsels’ request, in

order to explore any potential defenses. Counsel concluded

that Dr. King’s report could not support a mental-health

defense, and none was pursued at trial.

Counsel also requested and received funds for an inves-

tigator. Counsel hired a former homicide detective who had

conducted over 150 homicide investigations. The investiga-

tor looked into Conner’s case and reported back to counsel.

The record also shows that counsels’ theory of defense

during the guilt phase of Conner’s trial was that the pros-

ecution could not prove beyond a reasonable doubt that

Conner had committed all three murders. During trial, de-

fense counsel effectively cross-examined the state’s wit-

nesses and objected to the admission of evidence in order to

create reasonable doubt. Specifically, counsel pointed to

factual disputes regarding Voge’s murder which suggested

that Mark Via, not Conner, may have actually killed Voge.

Likewise, counsel also suggested that Moore was actually

responsible for Wentland’s murder.

No. 03-1951 23

At the penalty phase, counsels’ strategy was to humanize

Conner. Defense counsel argued during opening and closing

arguments that although Conner had in fact killed those

three men in 1988, he should nonetheless be spared.

Conner’s mother, step-father, step-sister, girlfriend, and a

family friend all testified. Specifically, evidence was pre-

sented showing Conner’s alcoholism and other drug prob-

lems; his use of alcohol on the night of the murders; his

background and family issues, including Conner’s adoption,

his much-loved adoptive father’s death early in Conner’s life,

and his step-father’s abuse of alcohol and violent behavior;

Conner’s stable employment history; his good qualities,

including generosity, affection, and concern for his family

and friends; and his relatively minor criminal history. Also

during the penalty phase, counsel conducted effective cross-

examination of the prosecution’s witnesses, objected to the

admission of evidence, pointed out corrections which needed

to be made to the pre-sentence investigation report, and

identified mitigating circumstances.

b. Evidence put forward by Conner at the PCR

hearing

During his PCR hearing, which lasted five days, Conner

presented evidence in support of his ineffective assistance

of counsel claims. In its subsequent order denying post-

conviction relief, the Superior Court correctly characterized

much of this evidence as “cumulative” to that presented by

trial counsel during the guilt and penalty phases. We note

here only the portions of the PCR hearing evidence which

are both non-cumulative and relevant to his ineffective

assistance claim now before this court.

At the PCR hearing, both counsel testified regarding their

respective roles in Conner’s defense. Regarding the coordi-

nation and preparation of Conner’s defense, Lazinsky

testified that initially there was some confusion as to the

24 No. 03-1951

division of responsibility, but that he eventually assumed

control of Conner’s case. And although the two attorneys

never sat down to explicitly divide up tasks, each oversaw

certain aspects of Conner’s defense. While Mendez oversaw

the filing of what he referred to as “stock death penalty

motions,” Lazinsky personally filed other motions as he saw

fit. Mendez was responsible for obtaining an independent

psychiatrist to evaluate Conner, and Lazinsky retained a

private investigator.

Lazinsky testified that he could not recall whether in-

toxication was considered as a defense, or whether man-

slaughter was considered as a lesser-included offense.

Mendez testified that he always considered lesser-included

offenses, such as manslaughter. Lazinsky also expressly

stated that a mental health defense was rejected because

there was a lack of substantive evidence to support such a

claim. Similarly, Mendez testified that Dr. King was not

called to testify because his report was unfavorable.

With respect to counsels’ perceptions of their represen-

tation of Conner, both testified that they did not feel con-

strained or hampered by any political considerations in the

performance of their duties as trial counsel. Mendez also

testified that all funding assistance counsel requested was

provided by the court. He further testified that he felt that

he had utilized all resources he was aware of in preparation

of Conner’s defense. Likewise, although Lazinsky noted that

he was apprehensive about directing a capital defense, he

testified that he believed he pursued all aspects of Conner’s

defense of which he was aware.

The investigator hired by counsel also testified at the

PCR hearing. His investigation had focused on the efficacy

and thoroughness of the investigation conducted by the

police. He interviewed Detective Stamm and witness Dennis

Wolf, and attempted to interview at least four other parties.

Specifically, the investigator testified that he had done all

No. 03-1951 25

he could think to do with respect to the Conner case. He

also indicated that, in his opinion, the case was properly

investigated by the police.

Numerous members of Conner’s family and friends

testified at the PCR hearing. As alluded to earlier, the

testimony—detailing Conner’s close relationship with his

adoptive father, Carl Conner, his immense grief when Carl

died, his strained relationship with his step-father, his step-

father’s drinking and abusive behavior, and Conner’s

positive characteristics—was duplicative of that presented

at trial and during the penalty phase. The only “new”

information presented at the PCR hearing with respect to

Conner’s background was that Conner had learned he was

adopted inadvertently, around age twelve, and he was

deeply upset by this. Also, viewing the testimony of family

and friends at the post-conviction hearing most generously,

it shed additional light upon only two aspects of Conner’s

background: (1) the extent of his step-father’s alcoholism

and its impact on Conner’s home life; and (2) the extent of

Conner’s own abuse of alcohol beginning at an early age.

Conner also had three experts testify at the PCR hearing.

First, Jeanine Jones was qualified as an expert in social

work. Jones testified generally that the death of a parent

will cause a young child to experience feelings of loss,

sometimes accompanied by exaggerated feelings of loneli-

ness and abandonment. Jones further testified that if the

deceased parent is soon thereafter replaced by another

caregiver, a child will often exhibit animosity towards the

new caregiver. Also, Jones indicated that children of alco-

holics will often themselves become alcoholics, and will of-

ten mirror other behaviors exhibited in their home environ-

ment, including violence. Lastly, Jones testified that

children who unexpectedly discover that they are adopted

often have feelings of loss, rejection, and betrayal, and

harbor anger and resentment toward their adoptive parents.

26 No. 03-1951

Second, Dr. David Price was qualified as an expert for-

ensic psychologist. He testified generally about the funda-

mentals of reaching an accurate mental health diagnosis

and how the Diagnostic and Statistical Manual (“DSM”) is

revised over time. Price stated that he reviewed various

documents relevant to Conner’s case, including Conner’s

previous mental health evaluations from 1988 (including

the reports by Drs. Fredrickson, Hull, Schuster, and King),

and personally interviewed Conner on two occasions.

Generally, Price criticized the amount of information Drs.

Fredrickson, Hull, Schuster, and King relied upon. He

offered an opinion that Dr. Fredrickson’s evaluation of

Conner was incomplete and inaccurate. He also opined that

the reports of Drs. Hull and Schuster considered only

whether Conner was sane at the time of the murders and

whether he was competent to stand trial. In particular, Dr.

Price testified that he believed neither doctor considered

the broader question of whether there were any other

diagnosable mental conditions relevant to mitigation. Last,

with respect to Dr. King, Price testified that King “did a

more thorough job.” Price acknowledged that King re-

quested an electroencephalography (“EEG”), assessed lead

levels, and that King’s report discussed Conner’s back-

ground in depth and did, in fact, proffer a diagnosis poten-

tially relevant to mitigation—that Conner had an antisocial

personality and mild pathological intoxication. But Price

also discounted King’s conclusion because King had used

the “outmoded” DSM-3, and not the DSM-3R, which was

available in 1987. However, Price testified that despite

King’s usage of the DSM-3, he nonetheless could not call

King’s diagnosis incorrect.

Price also offered his opinion that Conner “potentially

could have [met the criteria for] thirty-one diagnoses . . .

found under DSM-3R.” Specifically, Price testified that

Conner currently has a “delusional disorder,” a thought

disorder where the subject perceives that he is being perse-

No. 03-1951 27

cuted in a grandiose fashion. Price also stated that Conner

may have three personality disorders, including an organic

personality disorder. Furthermore, Price testified that had

Conner suffered from such a disorder in 1988, his behavior

would have been irrational, impulsive, and unpredictable—

effects which would have been exacerbated by Conner’s

consumption of alcohol.

Third, a toxicology expert, Dr. Michael Evans, testified

that Conner’s blood alcohol content at the time of the

killings was approximately .19, most likely with a range of

.15 and .23. He further testified that when intoxicated, an

individual’s judgment and logical thought processes are

impaired. Specifically, Evans stated that Conner was sub-

stantially impaired at the time of the murders.

c. Analysis of Conner’s ineffective assistance

claim

Conner asserts that counsels’ performance during the

guilt phase of his trial was both deficient and prejudicial

based upon: (1) the decision to limit investigation into

Conner’s mental health; (2) the decision to put the state to

its burden of proof and to seek an acquittal, instead of

presenting the defenses of intoxication or mental illness, or

the lesser-included offense of manslaughter; and (3) myriad

other alleged errors, including an overall lack of prepara-

tion and coordination of his defense; the failure to object to

various pieces of evidence, the jury instructions, and the

state’s closing argument; and the failure to argue in

Conner’s motion to suppress his confession that the confes-

sion was unreliable.

Similarly, Conner asserts that his counsels’ performance

was deficient and prejudicial during the penalty phase of

his trial due to: (1) counsels’ decision to limit investigation

into his mental health and his family background; (2) the

failure to present the mitigating circumstances of intox-

28 No. 03-1951

ication or mental illness; and (3) miscellaneous other

mistakes, including the failure to object to certain evidence

and the jury instructions, as well as counsels’ opening and

closing arguments.

Since Conner’s arguments regarding both phases of his

trial are nearly identical, we will address them together,

assembled into three general categories. First, we address

Conner’s allegation that counsels’ investigation was inade-

quate. Second, we consider counsels’ choice of guilt and

penalty-phase strategy. And third, we briefly discuss the

remaining alleged blunders by counsel.

Because, with one exception, we ultimately conclude the

post-conviction court reasonably found that counsels’ per-

formance was not deficient, we do not address Strickland’s

second requirement, prejudice, with respect to the first two

categories. And as to the third category, which is a veritable

cornucopia of highly particularized complaints, we find that

Conner cannot meet either requirement of Strickland with

respect to alleged errors in defense counsels’ motion

practice and alleged failures to object to certain evidence

and arguments by opposing counsel; nor can Conner meet

the prejudice prong of Strickland with respect to counsels’

failure to object to and/or proffer alternative jury instruc-

tions.

i. Investigation into Conner’s mental health

and family background

With respect to assertions of inadequate investigation as

the basis for an ineffectiveness claim, the principal inquiry

as to Strickland’s deficiency requirement is whether the

investigation, which justified or supported counsels’ sub-

sequent strategic decisions, was in and of itself reasonable.

See Wiggins, 539 U.S. at ___, 123 S. Ct. at 2536. In as-

sessing counsels’ investigation, their performance must be

reviewed objectively, measured against “ ‘reasonableness

No. 03-1951 29

under prevailing professional norms.’ ” Id. (quoting

Strickland, 466 U.S. at 688).

Conner relies primarily upon the Supreme Court’s recent

Wiggins decision to support his argument that counsels’

investigation was objectively unreasonable. In Wiggins, the

Court held that investigation prior to the defendant’s sen-

tencing, with respect to both its scope and depth (i.e., ex-

perts consulted, extent of research into known mitigating

circumstances), fell below established professional stan-

dards of conduct, including the American Bar Association’s

Guidelines for capital defense work. Id. at 2536-38.

Defense counsel’s investigation in Wiggins relied upon

three sources. First, a psychologist determined that the

defendant had an IQ of 79, problems coping with difficult

situations, and exhibited features of a personality disorder.

Second, the presentence investigation report included a one-

page account of the defendant’s personal history, noting his

“misery as a youth,” quoting his description of his own

background as “disgusting,” and observing that he spent

most of his young life in foster care. Third, counsel obtained

the Baltimore City Department of Social Services (“DSS”)

records documenting the defendant’s various placements in

the foster care system. Id. at 2536. Although funds were

allocated by the state court to retain a forensic social

worker, no further inquiries were made, and no social

history was compiled by counsel. In response to the ineffec-

tiveness claim, the state of Maryland asserted that coun-

sel’s limited pursuit of mitigating evidence and counsel’s

ipso facto decision not to present any mitigating evidence at

sentencing (instead arguing that the defendant was not

directly responsible for the murder) was a tactical decision.

Id. at 2533-34.

But the Supreme Court found that counsel deficiently

abandoned their inquiry into the defendant’s background

“after having acquired only rudimentary knowledge of his

history from a narrow set of sources.” Id. at 2537. The Court

reasoned that the DSS records alerted counsel to numerous

30 No. 03-1951

issues (like his mother’s alcoholism and his foster system

record) in the defendant’s background which merited

additional investigation because such was necessary “to

mak[e] an informed choice among possible defenses.” Id. No

evidence was uncovered, the Court emphasized, to suggest

that a mitigation case would have been counterproductive.

And counsel never abandoned the possibility of a mitigation

defense, even entreating the jury at sentencing to consider

“who [the defendant] is” and presenting evidence about the

rehabilitation prospects of the defendant, thereby necessi-

tating counsel to “develop the most powerful mitigation case

possible.” Id. at 2530.

Moreover, at the Wiggins PCR hearing, a licensed social

worker certified as an expert by the court testified that the

defendant had suffered severe sexual and physical abuse at

the hands of his mother and while in the care of a series of

foster parents—a fact the state reviewing court erroneously

found to have been included in the DSS report. Id. at 2539.

In addition, the expert testified about the extreme condi-

tions the defendant endured first in his alcoholic mother’s

home (including being abandoned for days and being forced

to beg for food and eat paint chips and garbage, an incident

where the defendant’s hand was held against a hot stove

burner, and repeated instances where the mother had sex

with men while the defendant slept in the same bed), then

in the homes of various foster parents (repeated physical

abuse, rapes, gang-rape, and molestation), and lastly as a

runaway. Id. at 2532-33. The Court inferred that “[h]ad

counsel investigated further, they may well have discovered

the sexual abuse [and other extreme conditions] later

revealed during state post[-]conviction proceedings.” Id.at

2537. Hence, the Court concluded that counsel’s failure to

investigate thoroughly was the result of inattention, not

reasoned strategic judgment, and held that the Maryland

court’s determination that counsel’s performance had not

been deficient under Strickland was unreasonable. Id. at

2537, 2539.

No. 03-1951 31

Conner’s case is easily distinguishable. First, counsel

did investigate both Conner’s mental history and family

background. In addition to evaluations conducted by two

court-appointed psychiatrists, which found Conner both

competent and sane, counsel obtained funding for an ex-

amination by a psychiatrist of their own choosing, Dr. King.

Dr. King subsequently did evaluate Conner. Counsel

considered Dr. King’s findings and concluded that the re-

port did not conclusively support a mental-health defense

(the wisdom of which we discuss in more detail below).

Second, unlike counsel in Wiggins, who focused upon

challenging the defendant’s guilt during the penalty phase

and failed to elicit more than a scintilla of mitigating evi-

dence despite having promised the jury that evidence about

the defendant’s difficult life would be presented, the focus

of Conner’s counsel throughout the penalty phase was

mitigation—including counsels’ opening statement, presen-

tation of evidence, and closing statement.

Third and relatedly, Conner’s counsel investigated and

then presented extensive testimony during the penalty

phase regarding Conner’s painful family history, alcohol

abuse, adoption, and Conner’s positive qualities. And as we

have previously held, trial counsel is not required to in-

vestigate the defendant’s past with the thoroughness of a

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

1996).

Fourth, unlike Wiggins, where the PCR hearing revealed

extensive physical and sexual abuse which the court found

was unknown to counsel at sentencing but which likely

would have been discovered by counsel had they not shirked

their investigatory responsibilities, Conner presented very

little evidence at the PCR hearing which was materially

unknown to counsel. With respect to the “new” evidence

which Conner did introduce at the hearing— regarding the

significant impact of Conner’s discovery of his adoptive

32 No. 03-1951

status, the extent of Conner’s step-father’s alcoholism, and

his own use of alcohol—we cannot consider counsel’s failure

to uncover it deficient performance since these facts were at

least referenced and/or generally presented to the jury

during the penalty phase by many of the same testifying

witnesses.6

In summary, we cannot say that the post-conviction court

unreasonably held that counsels’ investigation with respect

to both the guilt and penalty phases of Conner’s trial did

not fall below prevailing professional standards.

ii. Strategic choices

(A) Guilt phase

Counsel challenged the state to meet its burden of proof

at trial and sought an acquittal, in lieu of pursuing a

mental disease or defect or intoxication defense. Counsel

also opted not to advocate for the lesser-included offense of

manslaughter with respect to the killings of Wentland and

Moore.

Consistent with counsels’ strategy, counsel pointed to

eyewitness testimony that suggested Moore was actually

responsible for Wentland’s murder and presented factual

6

And even if it was deficient performance, we could not conclude

that the PCR court’s determination that Conner did not meet the

prejudice prong of Strickland was outside the parameters of

permissible legal opinion because (1) again, this information was

in fact presented, or at least introduced, to the jury, albeit in less

detail, at the penalty phase; and (2) the information is not as

shockingly extreme or graphic in nature as that in Wiggins. As we

stated in Eddmonds v. Peters, 93 F.3d 1307, 1322 (7th Cir. 1996),

“a few more tidbits from the past. . . [thrown] onto the scale would

not have tipped it in [Conner’s] favor.”

No. 03-1951 33

disputes regarding Voge’s murder, indicating that Mark Via

may have been the killer. Clearly, once counsel opted to

challenge whether the state could prove beyond a rea-

sonable doubt that it was Conner who had killed Wentland

and Voge, then counsel would have been hard-pressed to

concomitantly assert with any degree of legitimacy that,

assuming it actually was Conner who committed these two

murders, then he should be held less accountable because

of mental disease or defect, intoxication, or because he was

acting with “sudden heat” (one basis for the lesser offense

of manslaughter, Ind. Code § 35-42-1-3 (1989); see, e.g.,

Olive v. State, 696 N.E.2d 381, 382-83 (Ind. 1998)).

Moreover, we cannot say that the Indiana Supreme

Court’s7 assessment that “counsel was not outside their

bounds of discretion in deciding not to invoke an intoxica-

tion defense when, under the facts of this case and the law

of Indiana, this defense was not likely to be effective[,]” 711

N.E.2d at 1250, was not at least minimally consistent with

the facts and circumstances of this case, or was not at least

one of several equally plausible legal conclusions.8

7

Here, we review the decision of the Indiana Supreme Court,

as opposed to a ruling of the PCR court, because while Conner

clearly raised this argument before the PCR court, we cannot find

any ruling of the PCR court expressly addressing the issue.

8

It should also be noted that the trial court did, in fact, sua

sponte instruct the jury as to intoxication. However, this is largely

irrelevant to our analysis of whether counsel was deficient in

foregoing argument and a more extensive presentation of evidence

at trial as to intoxication based upon an assessment that such a

defense would not likely be successful under Indiana law.

Moreover, that the jury convicted Conner on all three murder

counts notwithstanding the court’s intoxication instruction

strongly indicates that even if it was error for counsel not to prof-

fer an intoxication defense, Conner suffered no prejudice from this

failing.

(continued...)

34 No. 03-1951

With respect to a possible mental disease or defect de-

fense, counsel determined, well within the scope of rea-

sonable professional strategic judgments, that Dr. King’s

evaluation on its face was not conclusively favorable to

Conner and moreover, given the assessments of the three

doctors who also evaluated Conner and found no mental

health problems, a mental-health defense, if pursued, would

open the door to potentially severely damaging rebuttal

testimony from the state. Even the psychologist who

testified on Conner’s behalf at the PCR hearing, Dr. Price,

could not state that Dr. King’s evaluation was incorrect.

Moreover, Dr. Price’s diagnosis was consistent with that

of Dr. King’s, although it was more expansive. Given the

quantum of evidence available to counsel at the time of

trial, which included three reports indicating that Conner

suffered from no mental disease or defect, and considering

that Conner’s own expert at the PCR hearing could not

point to any errors in the report submitted by Dr. King,

counsel were justified in relying upon Dr. King’s report and

in rejecting a mental disease or defect defense.

Next we address counsels’ failure to advocate for the

lesser-included offense of manslaughter with respect to the

killings of Wentland and Moore.9 Under Indiana law, sud-

den heat requires “sufficient provocation to engender . . .

passion.” Olive, 696 N.E.2d at 382. Sufficient provocation is

demonstrated by “anger, rage, sudden resentment, or terror

8

(...continued)

As to Conner’s assertion that the intoxication instruction as

given by the trial court was legal error, we address (and dismiss)

later in this opinion the many alleged problems with the jury

instructions he provides as a basis for his ineffectiveness claim.

9

The lesser offense of manslaughter based upon sudden heat was

a factual impossibility with respect to Voge’s killing, since he was

shot by Conner while laying on a couch, and no prior argument

had transpired.

No. 03-1951 35

that is sufficient to obscure the reason of an ordinary

person, prevent deliberation and premeditation, and render

the defendant incapable of cool reflection.” Id. at 383.

The record evidence does not even remotely indicate that

Conner was acting with “sudden heat” when he killed

Wentland. Evidence showed that it was Moore, and not

Conner, who had been arguing with Wentland. Wentland

attempted to flee the car and called for help, but he was

pursued on foot by Conner who eventually grabbed him,

beat, and stabbed him. These facts are not at all conducive

to a “sudden heat” argument, see, e.g., Ellis v. State, 508

N.E.2d 790, 791 (Ind. 1987) (rejecting the contention that

there was evidence of sudden heat where defendant not

only fatally stabbed the victim, but continued to attack him

as he lay on the ground). Consequently, the Indiana

Supreme Court10 did not unreasonably determine that trial

counsels’ decision to forego any request for a manslaughter

instruction as to Wentland’s murder did not fall below

prevailing professional standards.

However, with respect to Moore’s killing, we do find that

the Indiana Supreme Court unreasonably held that Conner

failed to demonstrate that trial counsels’ decision to forego

argument in support of manslaughter as a lesser-included

offense was not deficient. The irrefutable facts presented at

trial by the state of Indiana foreclosed any argument

disputing that Conner killed Moore. And not surprisingly,

at trial, Conner’s counsel did not attempt to cast doubt upon

Conner’s responsibility for this crime. In essence, given that

counsel—within the scope of their professional strategic

judgment, see supra—opted to forego an intoxication or

10

Again, see supra note 7, we review the decision of the Indiana

Supreme Court because, while Conner did indeed raise this ar-

gument before the PCR court, no ruling of the PCR court ex-

pressly addressed the issue.

36 No. 03-1951

mental health defense, no discernible theory of defense as

to Moore’s killing was presented at trial. Hence, it was

deficient for defense counsel not to advocate for manslaugh-

ter based upon “sudden heat,” if such an argument was at

all plausible.

Moore was killed, according to Conner, during the course

of a heated argument between Conner and Moore regarding

the appropriate course of action for the two to take follow-

ing Wentland’s murder. Moore wielded a knife at some

point during the confrontation. And indisputably, Conner

had been drinking heavily prior to the killings. Clearly, had

defense counsel requested a “sudden heat” manslaughter

instruction, the trial court would have been legally obli-

gated to so instruct the jury. See, e.g., Griffin v. State, 644

N.E.2d 561, 562 (Ind. 1994) (stating that the evidentiary

standard used to determine whether a defendant charged

with murder is entitled to an instruction on voluntary

manslaughter is “not a high one: the instruction is justified

if there is any appreciable evidence of sudden heat”)

(quotation omitted). Therefore, counsels’ failure to do so was

deficient, Conner met his burden with respect to Strickland ’s

first requirement, and the Indiana Supreme Court’s

contrary determination is objectively unreasonable.

Notwithstanding this determination, we also find that the

Indiana Supreme Court reasonably concluded that Conner

did not meet his burden as to Strickland’s second require-

ment—that he was prejudiced by counsels’ aforementioned

unprofessional error. In short, Conner failed to demonstrate

that the jury would not have convicted him of murder even

if counsel had proffered a “sudden heat” manslaughter

instruction and if the trial court had given the instruction

in its charge to the jury. The prosecution put forth over-

whelming evidence showing that Moore’s rationality and

self-preservation impulse were not overcome by emotion on

the day of the killings. For instance, when Conner told his

employer that he “had to off [Moore]” immediately following

No. 03-1951 37

the shooting, his demeanor was not that of someone over-

come by rage, anger, or any other emotions. In addition,

Conner took numerous steps to cover up his crimes, includ-

ing enlisting friends to help dispose of Moore’s body and

then fleeing the state. Even if we disagreed with the state

Supreme Court’s determination that Conner failed to meet

his burden to show a probability undermining confidence in

the outcome, certainly the evidence presented at trial was

such that we cannot now say that this ruling was outside

the boundaries of permissible differences of legal opinion.

In summary, aside from our discussion of counsels’ failure

to advocate for the lesser-included offense of manslaughter

with respect to Moore’s killing, the PCR court’s and Su-

preme Court’s conclusions that counsels’ trial strategy was

not deficient is at least minimally consistent with the facts

and circumstances of this case, and hence, is not unreason-

able. And regarding counsels’ deficiency with respect to

Moore’s killing, we find that the Indiana Supreme Court

did not unreasonably hold that Conner failed to demon-

strate he was prejudiced by counsels’ failing.

(B) Penalty phase

Turning next to the penalty phase, as explained in detail

above, counsels’ strategy was to “humanize” the defendant.

This was a legitimate strategy in a difficult case. For the

same reasons we noted above, counsel did not fall below

minimum prevailing professional standards when counsel

determined not to pursue mental disease or defect as a

mitigating factor. And regarding intoxication and Conner’s

family life, the record shows that counsel in fact offered

extensive evidence of his alcohol dependency, his consump-

tion of alcohol on the day of the murders, and detailed

descriptions of his background from numerous witnesses.

Conner’s argument as to these two aspects of counsels’

penalty-phase presentation amounts to an assertion that

38 No. 03-1951

counsel did not present enough mitigating evidence. But we

must be particularly wary of such arguments, which

essentially come down to a matter of degrees, and are not

well-suited to judicial second-guessing. See Dowthitt v.

Johnson, 230 F.3d 733, 743 (5th Cir. 2000), cert. denied, 532

U.S. 915 (2001). In short, we find the PCR court reasonably

determined that Conner’s counsel were not deficient in

pursuing a “humanizing” or mitigation strategy during the

penalty phase, which included evidence of intoxication and

his family background, but omitted mental health evidence.

iii. Other complaints

Conner asserts in summary fashion all sorts of errors by

counsel as to motions practice, the failure to object to cer-

tain testimony and portions of the state’s guilt and penalty-

phase closing arguments, as well as the failure to object to

or proffer alternative jury instructions at both phases of

trial. To put it simply, with respect to the complaints re-

garding motions practice and alleged failures to object to

certain evidence and opposing counsel’s arguments, it is

impossible for us to say that the PCR court unreasonably

held that Conner failed to meet his burden to show either

counsels’ deficiency or, even assuming error, any discern-

able prejudice. See, e.g., United States v. Mutuc, 349 F.3d

930, 935 (7th Cir. 2003) (“[c]onsidering that a motion in

limine is sought to aid counsel in formulating his trial

strategy, the decision regarding whether to file such a

motion is clearly part of the process of establishing trial

strategy,” and because strategy decisions are presumed

sound, simply the failure to make a motion or the affirm-

ative filing of a motion, without more, is insufficient to

demonstrate deficiency); United States v. Hernandez-Rivas,

348 F.3d 595, 601 (7th Cir. 2003) (stating “where an attor-

ney’s mistake resulted in the admission of evidence that

would have otherwise been suppressed, the outcome of the

trial does not become any less reliable”) (citing cases).

No. 03-1951 39

However, we will address at greater length the extensive

number of alleged errors by counsel vis à vis both the guilt

and penalty-phase jury instructions (i.e., complaints that

counsel failed to tender instructions to the court and that

counsel failed to object to allegedly improper instructions

used to charge the jury). Critically, the propriety of the jury

instructions was directly raised, considered, and subse-

quently rejected in Conner’s post-conviction attack. The

state Supreme Court11 specifically found that (1) because

Conner could have challenged the jury instructions in his

direct appeal, but did not, these claims were forfeited,

except to the extent that a fundamental error occurred; and

(2) the instructions as given did not, in toto, amount to

fundamental error. Conner II, 711 N.E.2d at 1246-47. In his

habeas petition, Conner again challenged various portions

of the guilt and penalty-phase jury instructions, including

every error now alleged before this court. Conner III, 259 F.

Supp. 2d at 760-61. The district court rejected all these

claims, holding: (1) the claims were procedurally defaulted

for habeas purposes because Conner failed to raise them in

his direct appeal, Id. at 760 (citing Conner II, 711 N.E.2d at

1246); (2) neither exception to procedural default applied;

and (3) therefore, the court need not consider whether, on

the merits, Conner was entitled to a writ based on the jury

instructions. Id. at 761.

In the instant appeal, perhaps understanding the reality

of procedural default, Conner does not challenge the portion

of the district court’s holding which addressed his direct

challenges to the jury instructions. Instead, Conner has

shoe-horned these challenges into his ineffective assistance

of counsel claims, and apparently hopes to have us consider

his various protestations as to the propriety of the jury

instructions on the merits, despite procedural default. We

decline to do so.

11

For the same reasons we laid out in note 7, supra, here again we

focus our analysis on the Indiana Supreme Court’s rulings.

40 No. 03-1951

Furthermore, because the Strickland standard and the

one exception to procedural default potentially applicable to

Conner’s habeas petition both necessitate a finding of

prejudice, even if the merits of Conner’s ineffective assis-

tance of counsel claim are addressed, there is no reason to

depart from the district court’s (unappealed) determination

below that Conner suffered no prejudice from any alleged

errors in the guilt or penalty-phase jury instructions. As we

explained many pages ago, when a claim is procedurally

defaulted, a federal court can nonetheless consider the

claim on its merits if a habeas petitioner demonstrates

either (1) cause and actual prejudice; or (2) a colorable

claim of actual innocence (a basis not readily at issue here,

see Conner III, 259 F. Supp. 2d at 761). See, e.g., Coleman,

501 U.S. at 750. In Conner III, the district court bypassed

an analysis of the “cause” requirement, expressly held that

“[t]he instructions to which Conner objected in Conner II,

when viewed in conjunction with other pertinent instruc-

tions, did not misinform the jury of its duty nor misstate

the law[,]” and concluded—echoing the state Supreme

Court’s similar conclusion—that Conner therefore had not

shown prejudice stemming from the guilt or penalty-phase

jury instructions. 259 F. Supp. 2d at 761.

Jury instructions are properly considered in their entirety

whether alleged as the basis for overcoming procedural

default, or as the basis for an ineffective assistance of

counsel claim. See Cupp v. Naughten, 414 U.S. 141, 146-47

(1973), cited in Perry v. McCaughtry, 308 F.3d 682, 689 (7th

Cir. 2002), and Conner III, 259 F. Supp. 2d at 761. Therefore,

the prejudice analysis laid out by the district court with

respect to procedural default is herein dispositive as to

Conner’s (in)ability to make the requisite showing of

prejudice under Strickland, absent some salient argument

by Conner to the contrary. Conner proffers no such argu-

ment, instead simply lists the guilt and penalty-phase jury

instructions he takes issue with, and then conclusively

No. 03-1951 41

asserts that the instructions are both unconstitutional and

prejudicial. We are unpersuaded by this, and find no reason

to upset the district court’s conclusion that, when viewing

the instructions as a whole, Conner failed to demonstrate

that he suffered any prejudice from the alleged errors in the

instructions (irrespective of whether we would attribute

such errors to counsel).

In conclusion, we do not agree with Conner that counsels’

performance was deficient in any of the respects addressed

above—motions practice, the failure to object to evidence or

opposing counsel’s arguments, or the failure to object to or

proffer alternative jury instructions. Furthermore, even if we

did conclude that counsel was deficient in any of the afore-

mentioned ways, we still could not deem the PCR court’s

and the Indiana Supreme Court’s conclusions—that Conner

did not demonstrate that all these errors created a reason-

able probability undermining confidence in the outcome of the

trial or penalty phases—unreasonable.

We therefore agree with the district court’s denial of

habeas relief with respect to Conner’s ineffective assistance

of trial counsel claim, finding that counsel was not deficient

in either their investigation or choice of strategy, holding

that counsel’s alleged failures to object to evidence and

argument were not unprofessional errors or the cause of

prejudice to Conner, and further concluding that Conner

suffered no prejudice from any alleged errors in either the

guilt or penalty-phase jury instructions.

III. Conclusion

To summarize, the district court’s denial of Conner’s

petition for a writ of habeas corpus as to (1) the admissi-

bility of his confession; (2) the ex parte jury communication;

and (3) the assistance of trial counsel is AFFIRMED.

42 No. 03-1951

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-20-04