Stevens, Christopher v. McBride, Daniel

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1442

CHRISTOPHER M. STEVENS,

Petitioner-Appellant,

v.

DANIEL MCBRIDE,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 03-CV-005—Allen Sharp, Judge.

____________

ARGUED FEBRUARY 7, 2006—DECIDED JUNE 18, 2007

____________

Before RIPPLE, MANION, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Christopher Stevens, an emotion-

ally disturbed young man who had been abused and

raped as a child, was sentenced to death in Indiana state

court for the molestation and brutal murder of 10-year-old

Zachary Snider. At Stevens’s trial, the only evidence

presented by the defense concerning his mental state at

the time of the killing was the testimony of a psychologist

who believes that mental illness is a myth. After the

Indiana courts rejected Stevens’s direct appeal and post-

conviction review petition, he brought this habeas corpus

petition under 28 U.S.C. § 2254, claiming principally

that his attorneys’ investigation and presentation of ex-

pert psychological testimony at his trial amounted to

2 No. 05-1442

ineffective assistance of counsel and deprived him of his

only opportunity to avoid conviction and a death sentence.

We conclude that the defense attorneys provided ineffec-

tive assistance at the penalty phase of the trial and grant

Stevens’s petition insofar as it relates to his sentence.

I

A

The underlying facts of this case are recounted in

detail in the Indiana Supreme Court’s decision affirming

Stevens’s conviction and sentence. See Stevens v. Indiana,

691 N.E.2d 412 (Ind. 1997). Those facts are entitled to a

presumption of correctness, see 28 U.S.C. § 2254(e)(1), and

they are in any event uncontested at this point. We re-

peat here only what is relevant to Stevens’s current

claims.

In February 1993, Stevens, who was 20 years old at the

time, was convicted in Indiana state court of child molesta-

tion. After serving several months of his sentence, he

was released on probation in May 1993. On the night

before his release, Stevens had a conversation with a

fellow inmate, Tracy Eastin, in which Eastin predicted

that Stevens would be back in jail for the same crime

again within two months. Stevens allegedly replied, “No,

I won’t. Next time I’ll kill him.”

Upon his release, Stevens went to live with his father

in Cloverdale, Indiana. He soon befriended Snider, a 10-

year-old who lived in the same subdivision as Stevens’s

father. On July 15, 1993, Snider went to Stevens’s home

in the late afternoon, where Stevens proceeded to molest

him. Afterwards, Snider threatened to tell his parents

about the assault; at this point, Stevens claims that he

became scared and “clicked.” He attempted to kill Snider

by smothering him with a pillow and then strangling him

No. 05-1442 3

with a cord. After those methods proved unsuccessful,

Stevens eventually managed to kill Snider by suffocating

him with a plastic bag. Stevens then placed Snider’s body

and Snider’s bicycle into the back of his car, drove out into

the countryside, and threw the body and bike over a

bridge. Later, he returned to the site to retrieve a plastic

bag that he feared, if found, might assist the police in

identifying him as Snider’s killer.

When Snider did not return home during the evening of

July 15, his parents began to search the neighborhood.

They came across Stevens in front of his house. Lying to

them, Stevens denied having seen Snider all day. On July

17, the police picked up Stevens for questioning, confront-

ing him with the fact that a witness had seen Snider’s

bicycle parked in front of his home on the day of the

murder. Stevens admitted to police that Snider had visited

him briefly, but he denied having anything to do with his

disappearance. Two days later, Stevens confessed to his

brother Mark Stevens that he had killed Snider, explain-

ing in detail what had occurred and directing his brother

to the bridge where the body was hidden. Mark Stevens

went to the police, who later arrested Christopher Stevens.

B

After Stevens was charged with Snider’s murder the

State announced its intention to seek the death penalty.

The Putnam County Superior Court appointed two lawyers

for Stevens: Jeffrey Baldwin as lead defense counsel and

Robert Clutter as second counsel. Soon thereafter, the case

was transferred to the Tippecanoe County Superior Court.

Baldwin retained Carol Knoy as a defense mitigation

specialist. From conversations with Stevens, it quickly

became apparent to the defense team that a mental health

examination would be an important component of trial

preparation. Stevens told his lawyers that he had been

4 No. 05-1442

physically, mentally, and emotionally abused as a child,

and had been raped by a stranger when he was 10 years

old. Medical records from a psychiatric facility where

Stevens was briefly a patient reported that he had at-

tempted suicide. Doctors there had diagnosed him with

major depression and possible schizophrenia. Stevens also

wrote a letter to Knoy in which he stated that when he

killed Snider he “put himself in Zachary’s place, and he

was doing to Zachary what he wished the man who had

raped him would have done to him.”

Upon Knoy’s recommendation, defense counsel retained

as a mental health consultant clinical psychologist

Dr. Lawrence Lennon, who at the time was director of a

child and adolescent psychiatric center at an Indianapolis

hospital. Upon meeting with Dr. Lennon for the first time,

defense counsel instructed him to evaluate Stevens but

not to write a report on his findings. Despite this ex-

plicit direction, Dr. Lennon wrote a report and sent it

to Stevens’s attorneys. The report included numerous

statements that were extremely detrimental to Stevens’s

case. Because this report is so central to Stevens’s

claims, we reproduce excerpts of it here:

Mr. Stevens revealed no evidence of any hallucina-

tions or delusions. . . . There is no reason to believe

that he has ever been out of touch with reality except

perhaps when he has been under the influence of

drugs. . . .

He said he has molested approximately 25-30 chil-

dren (mostly boys) and has shot and killed one boy

out west (later he recanted this story). . . .

He rarely accepts responsibility for his actions and

tries to blame others for all the problems he has

encountered. . . .

The murder of Zachary appears to be directly related

to his fear of having to return to prison after Zachary

No. 05-1442 5

revealed he would report Mr. Stevens’ sexual assault.

Mr. Stevens did not seem to reveal sincere sorrow

for killing Zachary and is much more preoccupied

with saving his own life.

Sexually, Mr. Stevens seems well versed in

pedophilia and readily accepts this diagnosis. . . .

Mr. Stevens is in need of intensive counseling

although due to his manipulative behavior he is not

now a good candidate for psychotherapy. . . .

Mr. Stevens is, at this time, a serious danger to

society and there is every reason to believe he would

continue to molest children, especially boys, if given

another opportunity. Given his present mental state,

one could not rule out another violent assault on a

young victim if Mr. Stevens again felt it was neces-

sary.

Upon receipt of the report, Stevens’s lawyers immedi-

ately contacted Dr. Lennon to question why he had

disobeyed their instructions. Stevens’s attorney Robert

Clutter testified that Dr. Lennon, echoing Marlene

Dietrich’s portrayal of the character Christine Helm Vole

in the 1957 film version of Witness for the Prosecution,

responded: “Don’t worry about it. I’m sandbagging the

State. . . . I’m trying to make them think that I’m going to

be a good witness for them, but I’m going to take—when

I take the stand, I’m going to be able to turn this all

around on them.”

Around the same time, Stevens’s lawyers also learned

that Dr. Lennon subscribed to an unusual psychological

theory known as the “myth of mental illness.” Stevens’s

lawyers believed that Dr. Lennon’s belief in this theory

placed him in the one percent minority of psychologists

who believe that mental diseases do not exist. They

concluded that he was a “quack.” Stevens’s lawyers also

6 No. 05-1442

learned about Dr. Lennon’s favored therapeutic technique,

“trust and bonding therapy,” which the lawyers (and later

Dr. Lennon himself ) described as “putting 18-year-olds

on his lap and sticking a bottle in their mouth.” Despite

their serious and well-founded doubts about Dr. Lennon’s

fitness as a defense expert, Stevens’s counsel did not

seek an alternative. In addition, prior to trial the lawyers

sent a copy of Dr. Lennon’s report to the prosecution.

Neither Dr. Lennon nor any other mental health profes-

sional testified during the guilt phase at the trial. Instead,

Stevens’s counsel tried to convince the jury that Stevens

was guilty of voluntary manslaughter rather than inten-

tional homicide because he acted in a state of sudden heat

provoked by Snider’s threat to disclose Stevens’s molesta-

tion of him. This strategy was unsuccessful, as the trial

court refused to give a proposed jury instruction on

voluntary manslaughter. The jury returned a guilty

verdict.

At the penalty phase of the trial, defense counsel pre-

sented testimony from Stevens himself, as well as from

numerous members of Stevens’s family. As their final

witness, Stevens’s lawyers called Dr. Lennon. Dr. Lennon

began his testimony by describing at length his preferred

form of therapy for troubled children, stating that he

typically would forcibly hold a young person down in his

lap for “a fun time where the child tries to get away” until

the child is exhausted and then, “we’ll talk about the

child, the little baby inside this boy that was never nour-

ished, never loved . . . and in some cases we’ll actually

give a bottle. The mother will give a bottle to the 17-year-

old and 16-year-old . . . .” Dr. Lennon also described his

diagnostic technique of looking at photographs of troubled

children at younger ages where “[w]e see . . . a beautiful

child that it makes you wonder why, what happened . . .

and then we look at where the person is today, and we try

to figure out what’s going on.”

No. 05-1442 7

Eventually turning to the subject of Stevens, after more

than twenty pages of testimony on his theories of child

development and his “trust and bonding” therapy, Dr.

Lennon testified about the “terrible childhood” and some

of the abuse Stevens had experienced. Notably, Dr. Lennon

did not provide any evaluation of Stevens’s current mental

health, except to say that Stevens “shows traits of . . . [a

reactive] attachment disorder,” which, according to Dr.

Lennon, means that Stevens is “going to live . . . by using

people.” Dr. Lennon also stated that Stevens is “emotion-

ally like a twelve-year-old” just after describing him as “a

very pathetic kid.” Dr. Lennon said nothing to connect

Stevens’s difficult childhood to his mental state at the

time of the murder.

The prosecution’s cross-examination of Dr. Lennon

closely tracked Dr. Lennon’s written evaluation of

Stevens. Prosecutors asked Dr. Lennon to confirm his

statement that the murder of Snider was directly related

to Stevens’s fear of having to return to prison. Dr. Lennon

volunteered that Stevens had antisocial qualities and

sociopathic traits. After walking Dr. Lennon through the

report, the prosecutor asked Dr. Lennon whether Stevens

had been sexually aroused by killing Snider and whether

he had masturbated on Snider’s body. Dr. Lennon re-

sponded that Stevens had admitted that he had done so.

Dr. Lennon had never disclosed this devastating fact to

defense counsel.

The jury unanimously recommended a death sentence.

After Stevens’s attorneys called Dr. Lennon to testify a

second time at the sentencing hearing, during which Dr.

Lennon described Stevens as presenting “a great risk to

society,” the trial court accepted the jury’s recommenda-

tion of death. In so doing, the court stated for the record

that it found that the mitigation evidence presented by

Stevens was “far outweighed” by the aggravation factors

provided by the State. In summary the court stated:

8 No. 05-1442

[T]he Court finds this murder was calculated. It was

motivated by self-preservation, coolly performed with

deliberation, and coupled with the defendant’s sexual

gratification. The defendant placed the possibility of

his arrest for child molesting above the life of a ten

year old boy. He stated that if placed in this position

he would kill in order to avoid returning to jail. That

is exactly what he did. He clearly acted in a cold-

blooded manner.

The Indiana Supreme Court affirmed Stevens’s convic-

tion and sentence on direct appeal. After obtaining new

counsel, Stevens filed a state petition for post-conviction

relief. After holding an evidentiary hearing, the trial court

denied this petition; the Indiana Supreme Court later

affirmed this denial. Finally, Stevens filed this petition

for habeas corpus in district court. The district court

denied Stevens’s claims, leading to this appeal.

II

Our review of Stevens’s petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254, which permits a federal court

to issue a writ of habeas corpus only if the state court

reached a decision on the merits of a claim, and that

decision was either “contrary to, or involved an unreason-

able application of, clearly established Federal law, as

determined by the Supreme Court of the United States,”

§ 2254(d)(1), or “was based on an unreasonable determina-

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

State court proceeding,” § 2254(d)(2). Since Stevens’s

principal argument involves a claim of ineffective assis-

tance of counsel, it is governed by the familiar standard of

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

which a defendant must show both that his lawyers’

performance was deficient and that this deficient perfor-

mance prejudiced his defense.

No. 05-1442 9

Although there is significant overlap between Stevens’s

claims that he received ineffective assistance of counsel

relating to the investigation and presentation of expert

psychological evidence at the guilt phase of the trial and at

the penalty phase, for clarity we consider each argument

in turn. We then briefly address two additional arguments

that Stevens raises in his petition.

A. Guilt Phase

Throughout his state and federal post-conviction pro-

ceedings, Stevens has claimed that his lawyers were

ineffective for not adequately investigating his mental

state and, as a result, failing to pursue an insanity defense

during the guilt phase of the trial and instead relying on

a doomed voluntary manslaughter theory. In its decision

denying post-conviction relief, the Indiana Supreme Court

rejected this argument, concluding that defense counsels’

decision not to pursue such a defense was a strategic one

based on adequate investigation. In any case, the court

held, Stevens was not prejudiced by his lawyers’ perfor-

mance because Stevens’s actions during and after the

killing constituted such strong evidence that Stevens

was aware of the wrongfulness of his conduct that no

reasonable jury could conclude otherwise.

Our review of Stevens’s counsels’ performance is “highly

deferential”; Stevens is required to “overcome the pre-

sumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Strick-

land, 466 U.S. at 689 (quotation marks omitted). The

choice not to investigate a particular defense does not

constitute deficient performance “if a lawyer has made a

reasonable decision that makes particular investigations

unnecessary.” Adams v. Bertrand, 453 F.3d 428, 436 (7th

Cir. 2006) (quotation marks omitted).

10 No. 05-1442

In an attempt to overcome the presumption of sound

trial strategy, Stevens relies on his lawyers’ frank admis-

sions at the state post-conviction hearing that they were

aware from the beginning of their representation of

Stevens that a comprehensive mental health evaluation

would be a crucial prerequisite for determining trial

strategy, yet after Dr. Lennon failed to provide them with

such an evaluation they neglected to consult an alternative

mental health expert. Stevens also emphasizes that his

lawyers did not offer any rationale for their decision not

to seek an additional expert. To the contrary, they explic-

itly disclaimed any strategic basis for their actions.

In contrast, the State, echoing the Indiana Supreme

Court, contends that defense counsels’ investigation of

Stevens’s mental state was adequate because it was

reasonable for them to rely on Dr. Lennon, whom the

State describes as a well-qualified and experienced mental

health professional. The State further argues that it

was a reasonable strategic choice for counsel to choose a

voluntary manslaughter defense over a mental illness

defense, since, it claims, choosing the latter path “would

have opened the door to the admission of incriminating

evidence not otherwise presented at the guilt phase,”

namely, Eastin’s testimony regarding Stevens’s jail-

house statement.

The general qualifications of an expert witness do not

guarantee that the witness will provide proficient assis-

tance in any given instance. For example, even the most

brilliant of witnesses might fail to address the import-

ant question at issue or might simply reiterate proposi-

tions so well-known that they are proper subjects for

judicial notice. Experience in the federal courts illustrates

this point. In an antitrust case, for example, this court

upheld a district court’s exclusion of the expert testimony

of a Nobel Prize-winning economist on the ground that,

despite his impeccable qualifications, his testimony

No. 05-1442 11

“mainly concerned a matter not in issue” (probably be-

cause counsel never asked him the right questions). In re

Brand Name Prescription Drugs Antitrust Litigation, 186

F.3d 781, 786 (7th Cir. 1999). There, the relevant rule

was Federal Rule of Evidence 702, which requires not only

that an expert witness be “qualified as an expert by

knowledge, skill, experience, training, or education,” but

also that the expert’s testimony be “the product of reli-

able principles and methods.”

Indiana, naturally, is under no obligation to follow

federal procedural rules, including the rules of evidence.

At the time of Stevens’s trial, however, Indiana had a rule

very much like the present FED. R. EVID. 702, or like IND.

R. EVID. 702 (effective Jan. 1, 1994): “[G]iven a subject

matter appropriate for expert testimony, the opinion must

be preceded by a foundation of evidence establishing the

witness’s credentials as an expert and the reliability of

any scientific methods utilized by the witness to reach

the opinion.” See Noblesville Casting Div. of TRW, Inc. v.

Prince, 438 N.E.2d 722, 727 (Ind. 1982); see also Martin v.

Roberts, 464 N.E.2d 896, 899 (Ind. 1984) (holding that a

potential expert witness “had to show to the trial judge

his knowledge and experience in the field to qualify as

an expert”). The problem here related first to the methods

that Dr. Lennon used and his idiosyncratic view of mental

disorders, and even more importantly, to the fact that

Dr. Lennon’s views favored the prosecution. Stevens’s

lawyers were aware that Dr. Lennon was part of a tiny

minority of mental health professionals. (It is odd, given

his views, that Dr. Lennon had worked at a psychiatric

hospital. As the website of the American Psychiatry

Association illustrates, psychiatrists devote their lives

to the study and treatment of mental disorders. See

http://www.psych.org/about_apa/. They, and the psycho-

logists who frequently work with them, would undoubtedly

take issue with the idea that they are tackling a “myth.”)

12 No. 05-1442

In light of the stakes in the case and the evidence the

defense had to confront, it would not have been reasonable

for defense counsel to rely on Dr. Lennon’s evaluation of

Stevens based only on his credentials.

Putting that question to one side for now, we are also

troubled by the State’s effort to characterize the defense

lawyers’ reliance on a voluntary manslaughter defense

as a reasonable strategic choice. As the Indiana Supreme

Court recognized in roundly rejecting Stevens’s argument

on direct appeal that the trial court should have given the

voluntary manslaughter instruction, “[n]othing in these

facts” indicates that Stevens acted in “sudden heat” as

defined by Indiana law, since “words alone cannot consti-

tute sufficient provocation to give rise to a finding of

sudden heat warranting an instruction on voluntary

manslaughter.” Stevens, 691 N.E.2d at 426-27 (quoting

Matheny v. Indiana, 583 N.E.2d 1202, 1205 (Ind. 1992)).

Nor is the State’s assertion that a mental illness defense

would have opened the door to Eastin’s testimony particu-

larly telling. As Stevens correctly points out, the same

door would have been opened if counsel had managed to

obtain a voluntary manslaughter instruction, since both

defenses involve the element of intent.

In light of Stevens’s lawyers’ admissions and the overall

weakness of the defense they presented at trial, we are

inclined to believe that their performance was ineffec-

tive. Before attempting to resolve that issue definitively,

however, we look at the prejudice branch of the Strickland

test. We do so because the Supreme Court has explicitly

noted that both deficient performance and prejudice

must be shown in order to prove constitutionally ineffec-

tive assistance of counsel. If either element is missing, the

petitioner cannot prevail. See Strickland, 466 U.S. at 697.

We therefore turn to the question whether Stevens was

prejudiced by his counsels’ performance at the guilt phase

of his trial.

No. 05-1442 13

In Indiana,“[a] person is not responsible for having

engaged in prohibited conduct if, as a result of mental

disease or defect, he was unable to appreciate the wrong-

fulness of the conduct at the time of the offense.” Ind. Code

§ 35-41-3-6. This is a difficult standard to meet; the

defendant carries the burden of proof and the Indiana

Supreme Court has made clear that it will reverse a trial

court’s denial of an insanity claim “only when the evidence

is without conflict and leads only to the conclusion that

the defendant was insane when the crime was committed.”

Thompson v. Indiana, 804 N.E.2d 1146, 1149 (Ind. 2004).

To show that an insanity defense was possible, Stevens

relies heavily on several mental health experts who

testified at the post-conviction hearing that Stevens was

severely mentally ill and that his mental illness played a

determining role in the murder. After conducting a

comprehensive psychological evaluation of Stevens, Dr.

Philip Coons, Professor of Psychology at the Indiana School

of Medicine, diagnosed him as having a “very severe

dissociative disorder,” opining that “at the time of the

murder, he was not only dissociating, but the identity

between he and [Snider] got mixed up. . . . [H]e’s basically

killing Zach because it’s what he would have wanted in

that molestation at age 10, to have been killed by his

abuser.” While Dr. Coons acknowledged that Stevens

“obviously knew right from wrong” after the killing,

“because he engaged in all kinds of behaviors to cover up

what he had done,” Coons emphasized that Stevens’s

ability to appreciate the wrongfulness of his conduct at

the time of the murder was “impaired.” Dr. Robert

Kaplan, a clinical psychologist, agreed that it was “very

clear” that Stevens suffers from “a dissociative disorder,”

explaining that a family history of physical and sexual

abuse corroborated such a diagnosis, as did a review of

Stevens’s behavior during his videotaped confession. Dr.

Kaplan described Stevens’s childhood as “a recipe for

14 No. 05-1442

developing someone with a dissociative disorder.” Dr.

Kaplan, like Dr. Coons, testified that it was his opinion

that “[t]he part of [Stevens] that’s able to appreciate the

wrongfulness of his conduct was disengaged when he was

dissociating,” adding that it was clear that Stevens

was under extreme emotional distress and “was actively

dissociating at the time that the murder was occurring.”

To prove prejudice it is not enough for Stevens simply

to show that a mental illness line of defense was avail-

able. Strickland requires him to demonstrate “a reason-

able probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. And, of course, we conduct this analysis

through the lens of AEDPA’s unreasonableness standard,

a standard that “allows the state court’s conclusion to

stand if it is one of several equally plausible outcomes.”

Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997).

Considering the evidence in the record of Stevens’s

extended efforts to kill Snider and later to cover up the

murder, the Indiana Supreme Court’s conclusion that no

jury could conclude that Stevens did not appreciate the

wrongfulness of his conduct at the time of the murder

was not implausible. Although we think that there is a

possibility that a jury presented with the expert testimony

of Dr. Coons and Dr. Kaplan might have concluded that

Stevens was legally insane at the time of the killing based

on a dissociation theory, this possibility does not render

the Indiana Supreme Court’s contrary conclusion unrea-

sonable. See Hardaway v. Young, 302 F.3d 757, 762 (7th

Cir. 2002) (AEDPA’s unreasonableness standard “means

something like lying well outside the boundaries of

permissible differences of opinion”). We therefore con-

clude that the Indiana Supreme Court did not unreason-

ably apply Strickland in determining that Stevens was

No. 05-1442 15

not prejudiced by his counsels’ failure adequately to

investigate and pursue an insanity defense during the

guilt phase of his trial.

One final comment on Stevens’s guilt phase claim: in his

reply brief, Stevens argues that, in addition to an insanity

plea, his trial lawyers should have pursued a defense of

guilty but mentally ill (GBMI). See Ind. Code § 35-36-2-5.

Such a defense is available in cases in which a defendant

“was mentally ill but able to distinguish right from wrong

at the time of the offense.” Weeks v. Indiana, 697 N.E.2d

28, 29 (Ind. 1998). Although a jury finding of GBMI “does

not guarantee a defendant that the death penalty will not

be imposed . . . as a practical matter, defendants found to

be guilty but mentally ill of death-penalty-eligible murders

normally receive a term of years or life imprisonment.”

Prowell v. Indiana, 741 N.E.2d 704, 717 (Ind. 2001)

(internal citation omitted). For this reason, the Indiana

Supreme Court has held that a defendant claiming inef-

fective assistance of counsel may prove prejudice by

showing that but for his counsel’s deficient performance “a

trial would have produced a result of . . . guilty but

mentally ill.” Id. at 717.

Merits aside, we find it inappropriate to consider this

argument because Stevens never argued to the Indiana

courts that this was one way in which he intended to prove

his ineffective assistance of counsel claim. Section

2254(b)(1)(A)’s exhaustion provision “requires the peti-

tioner to assert his federal claim through one complete

round of state-court review, either on direct appeal of his

conviction or in post-conviction proceedings.” Lewis v.

Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). Adequate

presentation of a claim requires a petitioner to “present

both the operative facts and the legal principles that

control each claim to the state judiciary.” Rittenhouse v.

Battles, 263 F.3d 689, 695 (7th Cir. 2001). Here, although

Stevens presented his ineffectiveness claim to the state

16 No. 05-1442

courts, he never presented as a supporting argument the

lawyers’ failure to raise the GBMI defense at trial. (It

may be worth noting here that although we assess coun-

sel’s performance as a whole for purposes of granting

certificates of appealability under 28 U.S.C. § 2253(c)(2),

and thus a certificate identifying ineffective assistance

of counsel brings up all of counsel’s actions, see Peoples v.

United States, 403 F.3d 844, 848 (7th Cir. 2005) (“[I]t is

the overall deficient performance [by a defendant’s attor-

ney], rather than a specific failing, that constitutes the

ground of relief.”), the purposes behind the rules of

procedural default requires a party to present to the state

court both the facts and the law on which he relies. Thus,

the failure to alert the state court to a complaint about

one aspect of counsel’s assistance will lead to a pro-

cedural default.) Instead, throughout the post-conviction

proceedings, Stevens couched his mental illness defense

theory either in general terms (contending in his petition

for post-conviction relief that his counsels’ “unreasonabl[e]

fail[ure] to investigate, develop, prepare, and present

available evidence, including but not limited to evidence of

diagnosable mental and emotional disabilities, [ ] would

have given rise to a defense to the charge”) or in terms

specific to an insanity defense (arguing in his proposed

conclusions of law that Dr. Coons’s testimony, for example,

supported a finding that Stevens was unable to “appreciate

the wrongfulness of his conduct at the time of the killing”).

Neither argument sufficiently alerted the state court to

the fact that Stevens intended to prove ineffectiveness

through counsel’s failure to present the GBMI claim, and

therefore Stevens may not do so here.

B. Sentencing Phase

In seeking relief from his capital sentence, Stevens

repeats many of the same arguments regarding the

No. 05-1442 17

inadequacy of defense counsels’ handling of expert psycho-

logical testimony that he made for the guilt phase. For

sentencing purposes, he stresses counsels’ failure to

develop mitigation evidence related to his mental state and

their ill-fated decision to call Dr. Lennon not once, but

twice, as a defense witness. The Indiana Supreme Court

rejected the first aspect of this claim for the same reason

it rejected Stevens’s guilt phase ineffectiveness claim: it

concluded that defense counsel had adequately investi-

gated Stevens’s mental health through Dr. Lennon and

then made a strategic decision not to present mitigation

evidence related to Stevens’s mental state. The court did

not, however, have anything to say about Stevens’s law-

yers’ decision to call Dr. Lennon as a defense witness for

sentencing purposes, other than to acknowledge Stevens’s

argument that Dr. Lennon “was a fatal [sic] witness for

the defense.”

The Indiana death penalty statute requires the State to

prove beyond a reasonable doubt the existence of at least

one enumerated aggravating circumstance. Ind. Code § 35-

50-2-9(b)(1). In Stevens’s case, the State focused on three

aggravating circumstances: that Stevens committed the

murder while committing the crime of child molestation,

that Stevens was on probation at the time of the murder,

and that the victim was under the age of 12. The statute

allows a defendant to provide evidence about both the

aggravating circumstances alleged by the prosecution and

enumerated mitigating circumstances. Here, at least two

such mitigating circumstances were implicated: first, that

“[t]he defendant was under the influence of extreme

mental or emotional disturbance when the murder was

committed,” and second, that “[t]he defendant’s capacity

to appreciate the criminality of the defendant’s conduct

or to conform that conduct to the requirements of law was

substantially impaired as a result of mental disease or

defect.” Ind. Code § 35-50-2-9(c)(2) & (6). The only other

18 No. 05-1442

mitigating circumstance that could have applied to Stevens

under Indiana law was the catch-all “[a]ny other circum-

stances appropriate for consideration.” Ind. Code § 35-50-

2-9(c)(8).

The Supreme Court has made clear that in evaluating

claims of ineffective counsel, “we must take [the] purpose

[of assistance of counsel]—to ensure a fair trial—as the

guide.” Strickland, 466 U.S. at 686. Strickland held that

counsel’s performance during the capital sentencing

phase of a criminal case is subject to the same standards

as counsel’s performance during the trial itself. Id. at 686-

87. In other words, the petitioner must demonstrate that

counsel was ineffective and that the petitioner was preju-

diced by counsel’s performance. Id. at 687. Counsel’s most

“basic duties” include the “duty to advocate the defendant’s

cause,” the “duty to bring to bear such skill and knowledge

as will render the trial [or capital sentencing phase] a

reliable adversarial testing process,” and the “duty to

investigate,” which was at issue in Strickland. Id. at 688,

691.

In assessing whether counsel was ineffective, the

Strickland Court requires the “defendant making a claim

of ineffective assistance [to] identify the acts or omissions

of counsel that are alleged not to have been the result of

reasonable professional judgment.” Strickland, 466 U.S. at

690. Following such a showing, “[t]he court must then

determine whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range

of professionally competent assistance.” Id. Although

counsel’s strategic choices are given considerable defer-

ence, “strategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations

on investigation.” Id. at 690-91.

No. 05-1442 19

Strickland particularly referred to “[p]revailing norms of

practice as reflected in American Bar Association stan-

dards” as “guides to determining what is reasonable,” but

it emphasized that a court’s ultimate determination of

counsel’s effectiveness must be grounded in the specific

circumstances of the case. Id. at 688. The ABA Guidelines

state that investigations into mitigating evidence “should

comprise efforts to discover all reasonably available

mitigating evidence and evidence to rebut any aggravating

evidence that may be introduced by the prosecutor.” ABA

Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989).1

Although Stevens’s trial counsel presented testimony

from a number of witnesses, principally family members,

during the penalty phase of the trial, very little of this

testimony addressed any statutory mitigating factor other

than perhaps the catch-all “other circumstances” factor.

None of it addressed whether Stevens was suffering

from an extreme emotional disturbance or was unable to

appreciate the wrongfulness of his conduct at the time of

the murder, both theories that Dr. Coons’s and Dr.

Kaplan’s later diagnoses of Stevens suggest would have

been supported, had counsel only pursued them. See Ind.

Code § 35-50-2-9(c)(2) & (6). Stevens contends that this

failure to investigate and present mitigation evidence

1

Later, the Supreme Court cited this standard specifically

and approvingly in its decision in Wiggins v. Smith, 539 U.S. 510,

524 (2003). The Wiggins case, however, was decided six years

after the Indiana Supreme Court considered Stevens’s ineffec-

tive assistance of counsel claims, and therefore for purposes of

this case cannot serve as a source of “clearly established Federal

law, as determined by the Supreme Court.” Eckstein v. Kingston,

460 F.3d 844, 848 (7th Cir. 2006). Nevertheless, Wiggins sheds

some light on what the Court itself understood as the scope of

its Strickland holding.

20 No. 05-1442

on his mental state constituted deficient performance. The

State responds that defense counsels’ choice not to look

for other mental health professionals and instead to rely

on Dr. Lennon’s testimony was a reasonable strategic

decision on the part of counsel and “a straightforward

approach to mitigation, as it explained reasons for

Stevens’s conduct that portrayed Stevens himself as a

victim.”

The strategic reasons that might, at a stretch, have

justified this decision at the guilt phase, fall apart when

we consider that at the sentencing phase Stevens had

nothing left to lose. The lawyers’ decision to forego pre-

senting this kind of mitigation evidence was made with-

out the kind of investigation into Stevens’s mental health

that Strickland calls for, after Stevens’s lawyers had

concluded that Dr. Lennon was a “quack.” Indeed, it is

uncontested that Stevens’s lawyers knew nothing about

the content of Dr. Lennon’s planned testimony. The

lawyers confessed at the post-conviction hearing that they

were utterly in the dark about what Dr. Lennon would

say when he took the stand. They frankly admitted that

during trial preparations, Dr. Lennon would only repeat,

“I can handle it. Don’t worry about it.” This is a complete

failure of the duty to investigate with no professional

justification. Where an expert witness’s opinion is “crucial

to the defense theory[,] defense counsel’s failure to have

questioned [the expert] . . . prior to trial is inexcusable.”

Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000).

Furthermore, given the fact that defense counsel did

know what Dr. Lennon had written in his report, we

cannot imagine what they hoped to gain by calling Dr.

Lennon to the stand at sentencing. This decision was the

catalyst for their action in turning over Dr. Lennon’s

extremely detrimental written report to prosecutors prior

to trial. The Indiana Supreme Court indicated that this

fact did not constitute an indication of deficient perfor-

No. 05-1442 21

mance since the trial court had required “any reports from

experts” to be turned over to the State prior to trial.

Stevens v. Indiana, 770 N.E.2d 739, 748 n.4 (Ind. 2002).

Our review of the record reveals, however, that the trial

court’s order pertained only to reports from expert trial

witnesses retained by the defense. Stevens’s lawyers could

have designated Dr. Lennon as a trial consultant rather

than an expert witness, thereby shielding his written

report from the prosecution. See Indiana Trial Rule

26(B)(4)(b) (“A party may discover facts known or opinions

held by an expert who has been retained or specially

employed by another party in anticipation of litigation or

preparation for trial and who is not expected to be called

as a witness at trial, only . . . upon a showing of excep-

tional circumstances. . . .”); cf. Beauchamp v. Indiana, 788

N.E.2d 881, 892 (Ind. Ct. App. 2003) (applying Rule

26(B)(4)(b) and stating that “a party should certainly be

protected when obtaining expert advice he requires in

order to properly evaluate and present his case without

fear that every consultation will be discoverable”).

A straightforward application of the first Strickland

requirement compels a conclusion that these “acts and

omissions” of Stevens’s counsel during the capital sentenc-

ing phase constitute errors “so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Strickland, 466 U.S. at 687,

690. We conclude, on this record, that the performance

of Stevens’s lawyers at his capital sentencing proceed-

ings fell below the constitutional minimum.

We thus turn to the prejudice inquiry. The Strickland

Court held that in order to show prejudice, “[t]he defen-

dant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466

U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

22 No. 05-1442

As it did for the guilt phase of the trial, the Indiana

Supreme Court reasoned that Stevens was not disadvan-

taged by his counsels’ failure to develop mitigation evi-

dence regarding his psychological state because such

evidence “would have been strongly contradicted by the

extensive evidence of the defendant’s multiple attempts

to kill Zachary and then carefully to take steps to cover-

up the crime.” Stevens, 770 N.E.2d at 754. But there is an

important difference between the statutory mitigating

factors of § 35-50-2-9(c)(2) & (6) for capital sentencing

purposes and the requirements for proving an insanity

defense at the guilt phase. Furthermore, the burden on the

defendant is not as heavy at sentencing as during the

guilt phase. See Baird v. Davis, 388 F.3d 1110, 1122 (7th

Cir. 2004) (“Substantial impairment of one’s capacity to

conform conduct to the requirements of law as a result of

mental disease or defect is qualitatively different from the

mere status of being ‘under the influence’ of extreme

mental or emotional disturbance.”); St. Pierre v. Walls,

297 F.3d 617, 632 (7th Cir. 2002) (“While a defendant’s

mental state at the time of the crime might not rise to the

level of a defense to the crime, it can be relevant in a

mitigation hearing.”). As a legal matter, a mental illness

mitigation defense to the imposition of a death sentence

may be available even if an insanity defense to the murder

charge is not.

In this case, we find a reasonable probability—that is,

one sufficient to undermine our confidence in the out-

come of the sentencing phase—that the result would have

been different if the jury had heard mainstream expert

psychological testimony of the sort presented by Dr. Coons

and Dr. Kaplan at the post-conviction hearing. See Strick-

land, 466 U.S. at 694. Competent evidence of Stevens’s

mental illness would have strengthened the general

mitigation evidence presented by defense counsel concern-

ing Stevens’s difficult background by focusing the jury on

No. 05-1442 23

the concrete results of years of abuse on Stevens’s psyche.

There was, in addition, little downside risk of presenting

such evidence to the jury; evidence of the most damning

sort was already before the jury. Cumulative evidence of

his predatory pedophilia and his specific actions on the

fateful day was not likely to make any difference. And

unlike general mitigation evidence concerning Stevens’s

background, evidence about Stevens’s severely dissociated

condition and impaired ability to appreciate the wrongful-

ness of his conduct at the time of the killing would have

provided his lawyers a basis for rebutting the aggravat-

ing factors highlighted by the State.

On this record, defense counsels’ decision to call Dr.

Lennon to testify before the jury at the penalty phase—not

to mention their decision to call him a second time to

testify before the trial judge at sentencing—can only be

viewed as prejudicial to the outcome of the sentencing

proceeding. Not only did Dr. Lennon stun defense coun-

sel by revealing to the jury that Stevens had engaged in

necrophilia after the murder, he also gave the prosecution

a gift by expressing his belief in Stevens’s future danger-

ousness—a subject that the prosecution itself is not

permitted to argue as an aggravating circumstance under

Indiana law. See Wisehart v. Indiana, 693 N.E.2d 23, 60

(Ind. 1998). Not only did Dr. Lennon’s testimony almost

certainly influence the jury against Stevens, it also

evidently had a strong impact on the trial judge. One

cannot read the court’s sentencing order, with its refer-

ences to “cool deliberation,” “self-preservation,” and

“sexual gratification,” without seeing a close reflection of

Dr. Lennon’s written report and testimony.

We conclude that the conduct of Stevens’s lawyers at his

capital sentencing proceedings fell below the constitu-

tional minimum standard and that this was prejudicial to

Stevens. The Indiana Supreme Court’s ruling to the

contrary amounted to an unreasonable application of

Strickland.

24 No. 05-1442

C. Other Claims

In addition to his arguments about his counsels’ han-

dling of the expert psychological evidence, Stevens raises

two other complaints about his lawyers’ assistance on

which we comment briefly: that they were ineffective for

failing to object to the requirement that he wear a stun

belt throughout the trial and that the district court

improperly denied him discovery to pursue an argument

that prosecutors presented perjured testimony to the jury.

With regard to the stun belt, Stevens claims that a

criminal defendant has a clearly established constitu-

tional right to be free of restraints at trial and that he was

prejudiced because his fear of being electrocuted made him

appear withdrawn and unremorseful to the jury. The

Indiana Supreme Court found no merit in this claim.

While acknowledging that since the time of Stevens’s trial

it had decided that criminal defendants may not be

required to wear stun belts in Indiana courtrooms, see

Wrinkles v. Indiana, 749 N.E.2d 1179 (Ind. 2001), the

court concluded that Stevens was not prejudiced by being

forced to wear the device because the jurors were not

aware that he had it on and because juror testimony at the

post-conviction hearing did not indicate that the device

had a significant effect on Stevens’s demeanor.

The Indiana Supreme Court’s analysis of this claim is

not unreasonable. Although the six jurors who testified

at the post-conviction hearing stated that Stevens ap-

peared emotionally withdrawn at trial, Stevens also

appeared withdrawn in the videotaped confession in which

he was not wearing any restraint. It is thus impossible to

know whether Stevens’s demeanor at trial was a result of

being forced to wear the stun belt or just reflective of his

more general state of mind and the emotions he was

experiencing in the courtroom.

No. 05-1442 25

In an attempt to salvage this claim, Stevens contends

that the use of a stun belt during a criminal trial is

inherently prejudicial. The cases cited by Stevens do not,

however, go so far. They hold instead that a defendant’s

general right to be free of restraints in the courtroom is

not absolute, but rather it is based on a balancing of the

defendant’s right not to be viewed in a prejudicial light

by the jury against the court’s need for security. See Deck

v. Missouri, 544 U.S. 622, 633 (2005) (noting that al-

though “courts cannot routinely place defendants in

shackles or other physical restraints visible to the jury

during the penalty phase of a capital proceeding,” this

constitutional requirement “is not absolute” and so a judge

may take account of “special circumstances . . . that may

call for shackling”); Holbrook v. Flynn, 475 U.S. 560, 568-

69 (1986) (“holding that the conspicuous . . . deployment of

security personnel in a courtroom during trial” must be

evaluated on a “case-by-case” basis); Illinois v. Allen, 397

U.S. 337, 344 (1970) (declining to hold that the binding

and gagging of a criminal defendant is unconstitutional

“under any possible circumstances”). In keeping with this

line of cases, we have described the use of a stun belt as

a “method[ ] of restraint that minimize[s] the risk of

prejudice” because it is hidden beneath a defendant’s

clothing. United States v. Brooks, 125 F.3d 484, 502 (7th

Cir. 1997).

Stevens’s final argument is that the district court erred

by refusing to permit him to conduct discovery into an

alleged pre-trial deal between prosecutors and state

witness Tracy Eastin, in which prosecutors were going

to give Eastin a letter requesting leniency in exchange

for his testimony against Stevens. Rule 6(a) of the Rules

Governing Section 2254 Cases in the United States

District Courts states that “[a] party shall be entitled to

invoke the processes of discovery available under the

Federal Rules of Civil Procedure if, and to the extent that,

the judge in the exercise of his discretion and for good

26 No. 05-1442

cause shown grants leave to do so, but not otherwise.” The

district court concluded that discovery was not war-

ranted in this case because the letters Stevens presented

as evidence of the alleged deal showed only that prosecu-

tors had attempted to assist Eastin “to obtain a safe

housing assignment within the prison system so that he

could be free from a possible assault from fellow inmates

who were upset with his having testified against the

petitioner.”

Stevens argues only that the district court read the

correspondence between prosecutors and Eastin too

narrowly, and it should have inferred that a broader pre-

existing deal had been reached. Suffice it to say that we

are not persuaded. The district court’s interpretation of

the letters, while perhaps not the only possible way to

look at them, was reasonable, and its denial of discovery

on this basis was well within its discretion.

III

For the foregoing reasons, the judgment of the district

court is AFFIRMED to the extent that it denies habeas

corpus relief with respect to Stevens’s conviction, and it is

otherwise VACATED. The case is REMANDED with instruc-

tions to issue a conditional writ of habeas corpus that sets

aside the sentence of capital punishment unless, within

120 days, the State affords Stevens another penalty

hearing.

No. 05-1442 27

RIPPLE, Circuit Judge, concurring in part and dissenting

in part. I agree with the principal opinion in holding

that Mr. Stevens’ trial counsel was constitutionally

ineffective during the penalty phase of the trial, and,

therefore, that Mr. Stevens is entitled to a new sentencing

proceeding. I write separately because I believe that

counsel’s shortcomings not only affected Mr. Stevens’

sentence, but also his conviction. Therefore, I would grant

habeas relief with respect to his conviction as well as

his sentence.

1.

As the principal opinion explains, counsel for Mr.

Stevens were aware “that a comprehensive mental health

evaluation would be a crucial prerequisite for determining

trial strategy, yet after Dr. Lennon failed to provide them

with such an evaluation they neglected to consult an

alternative health expert.” Slip op. at 10. Counsel did not

offer any strategic basis for not seeking out additional

expert advice, and the State’s proffered explanation for

the reasonableness of counsel’s choices does not suffice to

justify their actions. See id. The principal opinion, there-

fore, concludes, correctly, that “[i]n light of Stevens’s

lawyers’ admissions and the overall weakness of the

defense they presented at trial, we are inclined to believe

that their performance was ineffective.” Slip op. at 12.1

1

As the principal opinion notes, counsel’s sole reliance on a

voluntary manslaughter defense is troubling for several reasons.

See slip op. at 12. First, the facts as presented to the trial court

did not justify a voluntary manslaughter instruction. Second,

securing a voluntary manslaughter instruction, like pursuing

a mental illness defense, would have opened the door to Eastin’s

testimony. See id. Finally, nothing precluded counsel from

(continued...)

28 No. 05-1442

The principal opinion turns then to Strickland’s prejudice

prong to determine whether Mr. Stevens’ conviction may

have been affected by counsel’s failure.

After reviewing the standards for mental illness under

Indiana law and also the standard for demonstrating

prejudice under Strickland, the principal opinion con-

cludes that “the Indiana Supreme Court’s conclusion

that no jury could conclude that Stevens did not ap-

preciate the wrongfulness of his conduct at the time of

the murder was not implausible.” Id. at 14. In other

words, the Supreme Court of Indiana’s conclusion—that

Mr. Stevens had not suffered any prejudice as a result of

his counsel’s missteps—was not unreasonable.

2.

In reaching this conclusion, I believe that the principal

opinion reads the decision of the Supreme Court of Indiana

too broadly. With respect to the question of whether trial

counsel’s investigation of the expert was adequate, the

Supreme Court of Indiana concluded: “The trial court

determined that defense counsel adequately investigated

issues of substance abuse and mental illness and reason-

ably chose to pursue a different strategy. The post convic-

tion court did not err in denying relief on this claim.”

Stevens v. State, 770 N.E.2d 739, 749 (Ind. 2002) (footnote

omitted). This language speaks in terms of attorney

performance—the focus of Strickland’s first prong—rather

1

(...continued)

pursuing a voluntary manslaughter defense and at the same

time presenting evidence of mental illness. Both focus on the

defendant’s ability to form the requisite criminal intent to

commit murder, and the record does not suggest any justifica-

tion for only pursuing the former course.

No. 05-1442 29

than to prejudice—the focus of Strickland’s second prong.

Later in its opinion, the Supreme Court of Indiana also

addresses counsel’s decision to present a voluntary man-

slaughter theory as opposed to presenting a mental disease

defense. After reviewing counsel’s actions, the state

supreme court again uses language that speaks to the

performance inquiry of the first prong of Strickland: “The

post-conviction court found that counsel’s decision to

pursue the voluntary manslaughter strategy, while

ultimately unsuccessful, did not amount to deficient

performance.” Id. at 753. And, again, the Supreme Court

of Indiana upheld that decision: “We conclude that the

evidence as a whole does not lead unerringly and unmis-

takably to a decision opposite that reached by the post-

conviction court, and we find that defense counsel’s

choice of defense theory did not constitute ineffective

assistance of counsel.” Id. In sum, the Supreme Court of

Indiana rested its rejection of the merits of Mr. Stevens’

ineffective assistance of counsel claim on Strickland’s

performance prong; it did not address directly the question

of prejudice.

3.

AEDPA instructs that, in the usual case, we apply

a deferential standard to a state-court determination

that is challenged by way of a habeas petition. See Canaan

v. McBride, 395 F.3d 376, 382 (7th Cir. 2005) (“Ordinarily,

§ 2254(d) requires that we determine whether the state

court’s decision was ‘contrary to, or involved an unreason-

able application of, clearly established Federal law as

determined by the Supreme Court,’ or ‘was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’ ”). “This

standard only applies, however, to a claim that was

adjudicated on the merits in State court proceedings.” Id.

30 No. 05-1442

(internal quotation marks and citations omitted). “As a

practical matter, a federal court cannot apply the deferen-

tial standard provided by § 2254(d) in the absence of any

state court decision on the issue.” Id. This principle is

equally applicable to the separate inquiries under each

prong of Strickland. In the words of the Supreme Court,

“our review is not circumscribed by a state court conclu-

sion with respect to prejudice, as neither of the state

courts below reached this prong of the Strickland analy-

sis.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). Thus,

because the Supreme Court of Indiana did not reach the

question of prejudice, we need not apply AEDPA

deference;2 we look to see only whether there is a reason-

2

In addition to considering the decision of the Supreme Court

of Indiana, Judge Manion suggests that, in assessing the

question of prejudice, we should look at rationale relied upon by

the state trial court as well, specifically the state trial court’s

“finding that the additional psychological evidence altered the

nature of the sexual encounters between Stevens and Zachary.”

Concurring op. at 41-42. Judge Manion acknowledges that “[t]he

Supreme Court of Indiana did not specifically mention the

different description of the sexual encounter, but never rejected

the trial court’s findings and twice stated that additional

evidence ‘would have opened the door to the admission of

substantial incriminating evidence not otherwise presented

during the guilt phase.’ ” Id. at 42 (quoting Stevens v. State, 770

N.E.2d 739, 753 (Ind. 2002)).

For purposes of our review under AEDPA, the operative state-

court decision “is that of the last state court to address the

claim on the merits.” Garth v. Davis, 470 F.3d 702, 710 (7th Cir.

2006). In this case, the Supreme Court of Indiana, although

specifically mentioning other evidence that could have been

introduced had Mr. Stevens mounted a mental illness defense

(namely Eastin’s testimony), did not mention the alternative

description of Mr. Stevens’ last sexual encounter with Zachary.

This omission may have been inadvertent, or the evidence may

(continued...)

No. 05-1442 31

able probability that, but for counsel’s errors, the result of

the trial would have been different.

4.

In this case, the evidence presented at Mr. Stevens’ post-

conviction hearing established that Dr. Lennon’s ideas

concerning mental illness were “completely abandoned” by

the American Psychiatric Association in the 1980s and

that “anyone who subscribes to the ‘myth of mental illness’

2

(...continued)

have been encompassed by the reference to “substantial incrimi-

nating evidence.” However, it also may be the case that the

Supreme Court of Indiana did not agree with the trial court’s

conclusion that the additional facts fundamentally altered the

jury’s view of the “relationship” between Mr. Stevens and

Zachary. One of the rationales for modern statutory rape laws

is that sexual relations with a minor, especially one as young

as Zachary, are “inherently nonconsensual.” See, e.g., Daryl J.

Olszewski, Comment, Statutory Rape in Wisconsin: History,

Rationale & the Need for Reform, 89 Marq. L. Rev. 693, 699

(2006). The Supreme Court of Indiana may have concluded

that, even absent this evidence that the last encounter was

forcible, not consensual, the jury already would have considered

Mr. Stevens to be a sexual predator. In short, the jury’s view

would not have changed with the introduction of this addi-

tional evidence.

Thus, even assuming that the Supreme Court of Indiana’s

commentary on “open[ing] the door to the admission of substan-

tial incriminating evidence,” Stevens, 770 N.E.2d at 753, is meant

to address Strickland’s second prong, it is not at all clear that

the Supreme Court of Indiana meant to encompass within this

statement reference to the state trial court’s findings concern-

ing the nature of the relationship between Zachary and Mr.

Stevens. Consequently, these findings should not factor into

this court’s AEDPA analysis.

32 No. 05-1442

is not really in the mainstream of current thought among

professionals.” Post Conviction Record (“PCR”) at 2015

(testimony of Dr. Kaplan). Mr. Stevens’ counsel “had

concluded that Dr. Lennon was [a] ‘quack,’ ” but did not

engage in further, critical investigation of Dr. Lennon’s

testimony or his theories that would have led them to

seek the assistance of another expert. Slip op. at 20.

Had Mr. Stevens’ counsel sufficiently investigated Dr.

Lennon’s testimony, and, as a result, secured additional

expert evaluation, the jury would have been presented

with a psychiatric explanation for Mr. Stevens’ actions. At

the state post-conviction hearing, Dr. Kaplan testified

that, at the time Mr. Stevens committed the offense, “he

was laboring under dissociative disorder not otherwise

specified, borderline personality disorder, and intoxication

from LSD and the aftereffects of marijuana,” PCR at 2004,

and that Mr. Stevens’ capacity to make a personal choice

at the time of the crime was “nil,” id. at 2029. Dr. Coons

echoed Dr. Kaplan’s diagnoses, see id. at 1885-86, and also

concluded that, at the time of the offense, Mr. Stevens

was “laboring under extreme emotional disturbance” and

was impaired in his ability both to conform his conduct to

the requirements of the law and to appreciate the wrong-

fulness of his conduct, id. at 1891-92. In short, had counsel

secured an expert who adhered to mainstream theories

within the psychiatric and psychological communities, the

expert would have presented evidence establishing the

elements of a mental illness defense under Indiana law.

See slip op. at 13 (quoting Ind. Code § 35-41-3-6).

Given this evidence, I believe that there is at least a

reasonable probability that, had the jury been privy to

this evidence, its result would have been different. I must

respectfully register my disagreement with the principal

opinion that, in these circumstances, there is a fundamen-

tal difference between mounting an insanity defense and

establishing statutory mitigating factors for purposes of

No. 05-1442 33

capital sentencing. See slip op. at 22. Here, the experts not

only presented evidence that could establish that Mr.

Stevens was operating “under the influence” of a mental

disease at the time of the murder—a mitigating factor

under Indiana’s capital sentencing law, see Ind. Code § 35-

50-2-9(c)(2), but also that he was “unable to appreciate the

wrongfulness of the conduct at the time of the

offense”—a defense to the crime, see Ind. Code § 35-41-3-6.

Additionally, I believe that the principal opinion over-

states the downside to presenting a mental disease defense

during the guilt phase. The principal opinion states that

“[t]he strategic reasons that might, at a stretch, have

justified this decision at the guilt phase, fall apart when

we consider that at the sentencing phase Stevens had

nothing left to lose.” Slip op. at 20. As a practical matter,

Mr. Stevens had nothing to lose at the guilt phase. Absent

expert testimony that, at the time of the killing, Mr.

Stevens’ actions were caused by a mental disorder and he

was unable to control his actions, the jury was left with no

other alternative than to conclude that Mr. Stevens not

only chose to engage in predatory pedophilia, but also

that he willingly disposed of his victims as dictated by his

own interests.

5.

Furthermore, even if the decision of the Supreme Court

of Indiana, either by itself or in conjunction with the post-

conviction trial court’s decision, see Stevens, 770 N.E.2d

at 749 n.5, could be construed as reaching Strickland’s

prejudice prong, I could not join the principal opinion’s

conclusion that the decision of the Supreme Court of

Indiana was a reasonable one. The expert testimony

during the post-conviction hearing shows that Mr. Stevens’

upbringing was “a recipe for developing someone with a

dissociative disorder.” PCR at 2020. Both experts testified

34 No. 05-1442

that this disorder, in conjunction with Mr. Stevens’ other

infirmities, caused him to kill Zachary and prevented

him from recognizing the wrongfulness of his actions.

Additionally, Dr. Kaplan explained how the nature of

Mr. Stevens’ disorders and the events leading to the

killing of Zachary were inconsistent with premeditation.

Because the testimony of competent experts would have

explained Mr. Stevens’ actions in terms of his mental

illness and also would have diminished the impact of any

inculpating evidence of premeditation, I do not believe that

a determination that Mr. Stevens was not prejudiced by

his counsel’s lapse of judgment could be characterized as

a reasonable one.

Conclusion

For the foregoing reasons, I not only would grant Mr.

Stevens habeas relief with respect to his sentence, I also

would grant the writ with respect to his conviction. On this

ground, I respectfully dissent in part from the judgment

of the court.

MANION, Circuit Judge, concurring in part and dissent-

ing in part. I join the opinion of the court as to part II-C

regarding the claims concerning the stun belt and discov-

ery issues. I concur with Judge Wood in denying habeas

relief from the conviction, but write separately to explain

my agreement with the state court’s reasoning. I respect-

fully dissent from the granting of habeas relief for the

No. 05-1442 35

death penalty sentence because I conclude that the state

court’s decision denying collateral relief did not include

unreasonable determinations of the facts and was not

contrary to or an unreasonable application of Supreme

Court precedent.

In May 1993 Christopher Stevens was released on

probation from the Marion County jail in Indiana where he

had been serving a sentence for child molestation. He

moved in with his father, whose home was in the same

subdivision as that of ten-year-old Zachary Snider’s family.

In the early summer, Stevens attended and videotaped

one of Zachary’s Little League games and later, with his

father’s permission, took Zachary fishing. Stevens’s

relationship with Zachary culminated in sexual contact

with him. Because a fuller recitation of the facts is sig-

nificant to evaluating and understanding the Supreme

Court of Indiana’s decision, the following is a portion of

that court’s factual findings:

In the videotaped confession . . . Stevens told the

officers that on Thursday, July 15, Zachary visited

Stevens in the early afternoon, but stayed only for a

short time, saying that he would return after he had

picked up some money, talked to his father, and

changed his clothes. When he returned, Zachary and

Stevens talked for a while as Stevens flipped through

the channels on his television, and then the two went

to Stevens’ bedroom and “messed around,” which

mainly included the two performing fellatio on each

other but never anal sex. This activity was not new to

the pair, as they had had an ongoing sexual relation-

ship since shortly after Stevens returned to Stardust

Hills after serving his time in the Marion County jail.

After they “did stuff for awhile,” Zachary angrily

confronted Stevens with a rumor he had heard con-

cerning Stevens having sexual relations with Zachary’s

mother. Because of this rumor, Zachary threatened to

36 No. 05-1442

reveal Zachary and Stevens’ sexual relationship to his

parents. This threat made Stevens “real scared.” He

stated,

He said, he, he threatened to tell . . . about me and

him, and, uh, I’d just went through a bunch of

[expletive] in Indy, and that was just, just on my

mind. I was like, I just didn’t want to, thinking to

myself, you know, I just can’t go through all that

[expletive] again.

After Zachary’s threat, the two “messed around some

more,” which Stevens again stated meant “having sex.”

Once finished, Stevens led Zachary by the hand into

his brother’s room and the two got onto the bed.

Stevens took one of his brother’s pillows and placed it

over Zachary’s face in an attempt to suffocate him.

Zachary did not really resist; rather, “he just kept

sayin’ I love you, Chris; I love you, Chris.’ ” Because

the pillow “wasn’t doing anything,” Stevens looked

around the room and noticed a Sega Genesis controller

on the floor. He picked it up and, using the cord,

wrapped it around Zachary’s neck, at first just once

but then two or three times, and strangled the boy.

When Stevens “thought it was all over,” he removed

the cord from Zachary’s neck and proceeded to pace

back and forth between Stevens’ brother’s bedroom

and his own room looking at Zachary’s body and

contemplating what he would now do.

About five minutes later Zachary, while still uncon-

scious, began to take deep breaths. So, Stevens said,

“I went [into my kitchen] and got a trash bag and put

it over his head and wrapped it around his head, he

was unconscious so, you know, I knew he wouldn’t be

ripping it off his face and stuff.” Once the child had

suffocated, Stevens carried Zachary from his brother’s

bedroom into his own room and laid the boy’s body

on his bed. Stevens later revealed to a psychologist

No. 05-1442 37

for the defense that he killed for fear of having to

return to prison brought on by Zachary’s threat to tell.

Stevens then went out to the garage, pulled a trailer,

lawn mower, and grill onto the driveway to make room

for his car, brought his car into the garage, and shut

the garage door. He then placed Zachary’s bike1 in the

back of the car, went in and got Zachary’s body and

placed it also in the back of his car, and then covered

them both with a cover. Stevens then described in

detail how he drove out into the country and threw

Zachary’s body and bike over a bridge, naming the

roads he took to reach the remote location. Initially,

the bike got caught in a tree “where anybody could see

it if they walked by or drove by,” so Stevens “jumped

down there” and pulled both Zachary’s body and

bicycle beneath the bridge. In relating his state of

mind during the murder and immediately thereafter,

he described himself as “nervous and scared,” “all

frantic” and “not really thinking.”

Once home, Stevens telephoned Mark White to request

help in pushing the trailer in his driveway back into

his garage. After White assisted Stevens and left,

Stevens placed the mower and grill back in the garage,

and went back inside his house. Later that evening,

Stevens took a can of Lysol and sprayed down his car,

the cover used in the car to conceal the body and bike,

and his and his brother’s beds. He also played basket-

ball with White, during which time he saw the Sniders

driving around the neighborhood looking for Zachary.

When he and White finished playing basketball,

Stevens called Mrs. Snider to learn the status of their

1

[Footnote in original.] Zachary’s bike was already in the garage

because, Stevens stated, “whenever he comes over I have him put

his bike in the garage [. . . ] so [ ] nobody will see his bike there.”

38 No. 05-1442

search for Zachary, but did so under the guise of

inquiring about some rock concert tickets. During this

call, Mrs. Snider asked if Stevens had seen Zachary

that day, to which Stevens said, “No.” Mrs. Snider

then revealed that Zachary was missing, and Stevens

offered to help them look. Mrs. Snider replied that she

would call him if they needed his help. Although she

never called back, Stevens went over to their home

just before 9 p.m. As he talked with Mrs. Snider, he

saw a policeman arrive and walk up the Sniders’

driveway. Because Stevens “didn’t want to be around

the cop,” he told Mrs. Snider that he would “go check

a couple of places” and quickly departed. Stevens then

went to various houses asking the occupants if they

had seen Zachary.

Later that night Stevens returned to Zachary’s body

because he recalled leaving the plastic trash bag

wrapped around Zachary’s head. Stevens stated,

“I went back out there to get the trash bag cause,

I figured if you guys [the police] seen the trash bag and

looked in our house and seen the same kind of trash

bags and, and stuff.” Stevens described the trash bag

as one with handle ties, green outside and black

inside. Upon recovering the bag, Stevens drove away

from the scene and, after traveling some distance,

threw the bag out of his window. Upon returning to

Stardust Hills he again went to the Sniders’ house and

inquired whether they had heard anything yet, telling

them he was up at that late hour because he was

having trouble sleeping.

After the confession, the police searched for the trash

bag mentioned by Stevens. They found one matching

Stevens’ description on the side of the road about a

mile from where the body was located. While other

bags observed during their search all contained trash,

this one contained only road dust and debris, and

No. 05-1442 39

appeared to have “at one time contained something

that caused it to be stretched out,” Later that same

day, pursuant to a search warrant, police found sim-

ilar trash bags and a Sega Genesis video game and

controllers in Stevens’ home.

The body found by police under the bridge was later

identified through dental records as that of Zachary

Snider. Also, Mr. Snider later identified the bike found

with the body to be Zachary’s. The pathologist who

performed the autopsy, though unable to determine

the cause of death because of the state of decomposi-

tion, observed no evidence inconsistent with death by

either strangulation or suffocation. He found no

broken bones and no evidence of any penetrating

injury to the torso or lower extremities. When asked

about the potential for a natural cause of death, the

pathologist replied that the tissues of the heart, lungs,

liver, and kidneys available for examination showed no

signs of disease. The forensic entomologist who exam-

ined insect samples found in the body and in the soil

under the bridge placed the time of death sometime

between noon and sunset on July 15.

Stevens v. State of Ind., 691 N.E.2d 412, 418-19 (Ind. 1997)

(internal citations to the record omitted). Stevens was

charged with first degree murder, and trial preparations

and proceedings followed. The principal issue in this

appeal involves the expert testimony of a psychologist, Dr.

Lawrence Lennon. Dr. Lennon did not testify at the guilt

phase of the trial, only during the penalty phase and at

sentencing. Stevens claims that his counsel was ineffective

at both the guilt and penalty phases for retaining only

Dr. Lennon, whom Stevens characterizes as an inade-

quate and prejudicial expert. The state court denied post-

conviction relief on this basis.

To obtain habeas corpus relief in this court under

AEDPA, Stevens must show that the state court’s deter-

40 No. 05-1442

mination was contrary to or an unreasonable application

of Supreme Court precedent, or an unreasonable determi-

nation of the facts. Central to this appeal is the familiar

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

Strickland requires a petitioner claiming ineffective

assistance of counsel to demonstrate both constitutionally

deficient performance and prejudice. In ineffective assis-

tance of counsel claims, this court has explained that,

[if] a state court has denied a Strickland claim on the

merits, under the AEDPA we generally review for clear

error. As we noted in Holman v. Gilmore, “Strickland

calls for inquiry into degrees; it is a balancing rather

than a bright-line approach . . . . This means that

only a clear error in applying Strickland’s standard

would support a writ of habeas corpus.” 126 F.3d 876,

881-82 (7th Cir. 1997). This is because “Strickland

builds in an element of deference to counsel’s choices

in conducting the litigation [and] § 2254(d)(1) adds a

layer of respect for a state court’s application of the

legal standard.” Id.

United States ex rel. Bell v. Pierson, 267 F.3d 544, 557 (7th

Cir. 2001) (emphasis added). We therefore review for

clear error in the Supreme Court of Indiana’s decision.

With respect to Strickland’s performance prong, I am not

“inclined to believe that [trial counsels’] performance

was ineffective,” at the guilt stage as Judge Wood’s opin-

ion suggests. Ante at 12. Nonetheless, I agree with Judge

Wood that the state court did not clearly err in applying

Supreme Court precedent regarding the guilt phase of the

trial because Stevens was not prejudiced by his counsels’

performance. The Supreme Court of Indiana cites the

correct standard to evaluate prejudice under Strickland,

specifically noting that Stevens must demonstrate “that

his counsels’ errors were so serious as to deprive him of

a fair trial because of a reasonable probability that, but

No. 05-1442 41

for counsel’s unprofessional errors, the result would have

been different.” Stevens v. State of Ind., 770 N.E.2d 739,

746 (Ind. 2002) (citing inter alia Strickland, 466 U.S. at

694). The Supreme Court of Indiana further clarified that

“[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. (citing Strick-

land, 466 U.S. at 694). Of course, “more than a correct

citation is needed to avoid a decision ‘contrary to’ clearly

established federal law.” Burgess v. Watters, 467 F.3d 676,

683 (7th Cir. 2006). The state court, however, proceeded

to apply this standard, concluding that an alternative

mental illness defense at the guilt phase “was not without

its pitfalls” because this defense

would have opened the door to the admission of

substantial incriminating evidence not otherwise

presented during the guilt phase. This evidence

included testimony of a witness that, upon the defen-

dant’s prior release from jail onto probation for a

previous conviction of child molesting, the defendant

had declared that he planned to kill his next child

molesting victim to avoid returning to jail.

Id. at 749; see also id. at 753. Furthermore, the Supreme

Court of Indiana noted that one of Stevens’s post-convic-

tion experts, Dr. Coons, “acknowledge[ed] that [Stevens]

could appreciate the wrongfulness of his conduct when he

took steps to hide Zachary’s body.” Id. at 749 n.5. Based on

this additional evidence, the Supreme Court of Indiana

noted that Dr. Coons’s testimony “would have had little

or no effect on the jury’s verdict . . . .” Id.

Another piece of incriminating evidence that would

have come into evidence through the additional mental

health experts is a different description of the nature of

the sexual encounters between Stevens and Zachary. The

state trial court made a finding that the additional psycho-

logical evidence altered the nature of the sexual encoun-

42 No. 05-1442

ters between Stevens and Zachary. The understanding

at trial had been that the molestation was “consensual,”

but the testimony of Drs. Kaplan and Coons during the

state post-conviction hearing reveals a different story.

According to Dr. Kaplan, Zachary and Stevens were

wrestling around as play, and then [Stevens] grabbed

his shorts and, well, Zachary I think hit . . . Steven[s]’s

penis, and then [Stevens] grabbed his shorts, pulled

them down, and at that point, again, you know, he—he

had then forced himself on Zachary, made him, you

know, suck his penis, and . . . they had sexual rela-

tions. And then after the sexual relations were con-

cluded, Zachary told him, you know, “I’m going to tell

my mother about what you did to me.” And then,

again, he saw Zach as the victimizer now.

Kaplan earlier in his testimony provided the following

analysis:

In [Stevens’] mind, he was a seducer of children, not a

forced raper of children. So as long as he saw this

as what he felt to be consensual, he didn’t see any-

thing wrong with it. And that’s probably the greatest

problem for him with the Zachary murder is that this

was the first time he had forced himself on another

child and forcibly had sex. And to him, that was very,

very incongruent with his concept of who he was

and what sexual molestation is.

The Supreme Court of Indiana did not specifically men-

tion the different description of the sexual encounter, but

never rejected the trial court’s findings and twice stated

that additional mental illness evidence “would have

opened the door to the admission of substantial incriminat-

ing evidence not otherwise presented during the guilt

phase.” Stevens, 770 N.E.2d at 753; see also id. at 749. In

sum, the state court’s determination that Stevens did not

suffer prejudice from his counsels’ performance at the

No. 05-1442 43

guilt phase is not contrary to or an unreasonable applica-

tion of Supreme Court precedent. I therefore agree with

Judge Wood that Stevens is not entitled to habeas relief

from his conviction.

Proceeding to the penalty phase, just as the state court

did not err in upholding the conviction, the state court

similarly did not err in denying relief from the death

penalty sentence. I therefore respectfully disagree with

Judges Wood and Ripple regarding habeas relief from

the death penalty sentence.

The Supreme Court of Indiana concluded that the trial

attorneys “investigated the mental health issues through

the use of Dr. Lennon.” Stevens, 770 N.E.2d at 755. The

court further quoted with approval the trial court’s find-

ing that “ ‘[d]efense counsel’s investigation of Petitioner’s

mental health and prior use of drugs was reasonable’ ” and

that defense counsel pursued a “ ‘strategy of portraying the

petitioner as a passive victim of abuse’ ” at the penalty

phase. Id. at 754. Furthermore, the state trial court found

that based on the fuller description of Stevens’ relations

with Zachary that the new experts offered, “[t]he jury

would not consider such a violent, voracious predator as

someone deserving a penalty less than death.” See Stevens

Supp. App. at 65.

In his penalty phase testimony, Dr. Lennon testified

regarding Stevens’s emotional immaturity and the impact

of abuse and his mother’s use of drugs and alcohol on

Stevens’s development. This mitigation testimony was

in addition to testimony from a variety of Stevens’s

relatives and individuals who could testify about and

provide documentation regarding his deplorable childhood.

In this case, the Supreme Court of Indiana found that

Stevens’s counsel “presented various witnesses and

evidence showing various mitigating circumstances

including his parents’ divorce and his living in the homes

44 No. 05-1442

of different people while growing up, the defendant’s

troubled childhood including suffering childhood sexual

abuse, his adolescent alcohol and drug use and diagnoses

of passive personality, his depression and suicide at-

tempts, and his poor academic performance.” Stevens, 770

N.E.2d at 753; cf. Woods v. McBride, 430 F.3d 813, 825

(7th Cir. 2005) (noting that “[c]ounsel in this case actually

presented mitigation evidence during the penalty phase

rather than a half-hearted attempt to deflect culpability

from the defendant.”) (citing Wiggins v. Smith, 539 U.S.

510, 515-18, 526 (2003)). In the context of challenging

a death penalty sentence, “the question is whether there is

a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant

death.” Strickland, 466 U.S. at 695. The prosecutors ar-

gued for three aggravating factors warranting the death

penalty, which the jury each found to be proven beyond a

reasonable doubt: that the defendant committed the

murder by intentionally killing the victim while commit-

ting child molestation, that the victim was under the age

of twelve, and that the defendant was on probation after

a felony conviction. The Supreme Court of Indiana

was “not persuaded that the evidence in the record un-

avoidably points towards an opposite result” from the

state trial court’s conclusion that counsel were not ineffec-

tive. Stevens, 770 N.E.2d at 755. Under the deferential

standard of AEDPA, this is not a decision that is contrary

to or an unreasonable application of Supreme Court

precedent.

It is true that Dr. Lennon failed to follow counsels’

instructions not to prepare a report, responded to the

prosecutor’s unexpected question regarding necrophilia,

and discussed his unusual form of therapy. He was not a

very good witness. Yet, his performance at the penalty

phase (his first testimony in the case, since he did not

No. 05-1442 45

testify at the guilt phase), does not render Stevens’s

counsels’ performance ineffective. More importantly, the

Supreme Court of Indiana’s conclusion that counsel

performed reasonably is not an unreasonable application

of Supreme Court precedent. Therefore it does not follow

that the jury or judge “would have concluded that the

balance of aggravating and mitigating circumstances did

not warrant death” if faced with additional expert testi-

mony presenting the diagnosis of disassociation. Strick-

land, 466 U.S. at 695. Having reviewed the videotaped

confession as well as the record, I do not find that the state

court’s determination was unreasonable. Consequently,

I respectfully dissent from granting habeas relief on the

death penalty sentence.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-18-07