David Frentz v. Richard Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-3479

DAVID MARK FRENTZ,

Petitioner-Appellant,

v.

RICHARD BROWN,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:13-cv-1311-TWP-DKL — Tanya Walton Pratt, Judge.

____________________

ARGUED OCTOBER 25, 2017 — DECIDED NOVEMBER 22, 2017

____________________

Before KANNE and SYKES, Circuit Judges, and DARROW,

District Judge.*

DARROW, District Judge. David Frentz filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 after the

Court of Appeals of Indiana affirmed the denial of his peti-

tion for postconviction relief in state court. That petition at-

* Of the Central District of Illinois, sitting by designation.

2 No. 15-3479

tacked Frentz’s conviction for the January 24, 2005 murder of

his housemate, Zackary Reynolds. Before his trial on that

charge, Frentz had filed a notice that he would pursue a de-

fense of not guilty by reason of insanity, but, after consulting

with an expert, did not pursue the defense. Frentz was con-

victed by a jury of the murder, and of associated drug charg-

es, and sentenced to 59 years of imprisonment. He appealed

to the Court of Appeals of Indiana, which affirmed. He then

filed his postconviction petition in Indiana court alleging in-

effective assistance of counsel for, among other things, not

having pursued the insanity defense. His petition was de-

nied, and he appealed to the Court of Appeals of Indiana,

which affirmed the denial. The Indiana Supreme Court de-

nied transfer of the case,1 and Frentz filed a petition for writ

of habeas corpus in the Southern District of Indiana. The dis-

trict court denied the petition, and declined to issue a certifi-

cate of appealability. This Court then granted the certificate,

finding that Frentz had made a substantial showing of the

denial of his right to effective assistance of counsel because

counsel failed to pursue an insanity defense.

Because the Indiana appellate court did not unreasonably

apply federal law in denying Frentz’s postconviction peti-

tion, we now affirm the district court’s decision.

1 In Indiana, the judgment of the appellate court is final unless the

Indiana Supreme Court grants a Petition to Transfer, which has the effect

of vacating the previous appellate judgment and giving the Indiana Su-

preme Court jurisdiction over the appeal “as if originally filed in the Su-

preme Court.” Ind. R. App. P. 58(A).

No. 15-3479 3

I. Background 2

Frentz, who was 53, lived with Reynolds, 23, who

worked on Frentz’s farm in Orange County, Indiana. Frentz

was an alcoholic and had been drinking heavily for 35 years;

on Saturday, January 22, 2005, his doctor told him that he

would die if he did not stop drinking. His doctor gave him

medication to deal with delirium tremens, a symptom of al-

cohol withdrawal. He stopped drinking that day.

On Sunday, January 23, Frentz ran errands, worked on a

pickup truck with Reynolds at the house they shared, and

then ran more errands. On his way back to the house Frentz

stopped at a fast-food drive-through in Salem, Indiana, be-

tween 10:00 and 11:00 in the evening. During this time he

talked on his cell phone with his friend Carl Brock. Frentz

told Brock that he had been “feeling bad,” and had been

having hallucinations, including, according to Brock “either

light poles or salt shakers dancing or something like that …

dogs running across the road laughing at him and stuff like

that.” Worried, Brock asked Frentz to call him when he got

home.

Brock called Frentz an hour or two later. Frentz asked

Brock and Brock’s wife if either of them had heard from

Dusty Austin, Frentz’s ex-girlfriend. Frentz claimed to have

been “fucked over” by a friend, Chuck Woolsey, who he now

2 The facts pertaining to the conduct with which Frentz was charged

are taken, unless otherwise stated, from the Court of Appeals of Indiana

order denying Frentz’s postconviction petition, Frentz v. State, 875 N.E.2d

453, 457–462 (Ind. Ct. App. 2007). See 28 U.S.C. § 2254(e)(1); see also

Caffey v. Butler, 802 F.3d 884, 887–888 (7th Cir. 2015), cert. denied, 136 S.

Ct. 1527 (2016) (presuming that the state courts’ account of the facts is

accurate unless rebutted by clear and convincing evidence).

4 No. 15-3479

thought to be involved with Austin. According to Brock,

Frentz went during this conversation from “feeling ill and

hallucinating to someone who was very sober and [not] real-

ly talkative at all.” Brock made some jokes, hoping to lighten

the mood; instead, Frentz hung up. Brock tried calling him

back immediately, with no luck.

At about 3:30 a.m., Brock was able to reach Frentz on the

phone. Frentz sounded “freaked out,” and told Brock to call

the police. Frentz also said during this conversation that “he

put PCP in that shit and people [are] up here to fuck with

us.” (Brock assumed this was in reference to Woolsey.) Dur-

ing the conversation, Frentz was “hollering” at Reynolds,

but Brock never heard Reynolds say anything back. When

Brock asked to talk to Reynolds, Frentz hung up. When

Brock’s wife called Frentz back and asked to talk to Reyn-

olds, Frentz hung up again.

Sometime early that morning, two of Frentz’s neighbors

saw and heard Frentz’s pickup truck speeding down the

road. Frentz called 911 at about 5:30 a.m., and said that sev-

eral people were trying to break into his house. The connec-

tion cut out several times, but Frentz conveyed that people

had broken into his house, that one of them was shooting,

that his friend had been shot in the chest but was still breath-

ing, that the people were still in his home, that they were

“trying to get in the windows,” and doors, and that he had

“locked the door back.” Police officers arrived at his house to

find no signs of vehicle or foot traffic outside. Frentz was

standing in his kitchen, looking disoriented and agitated. He

opened the door for the officers, one of whom saw an SKS

assault rifle lying on a kitchen chair. The police handcuffed

Frentz, who was wearing only underwear and a t-shirt and

No. 15-3479 5

was “sweating really bad.” Frentz told the officers that mo-

torcycle-riding Mexicans had broken into his house and that

there was someone in his bed. There was no sign of anyone

in Frentz’s bed, or any struggle or forced entry, but the offic-

ers found Reynolds, lying face-up in the hallway in a pool of

blood, on top of a loaded .22 caliber rifle.

He was dead, shot three times at close range. There were

traces of Reynolds’s DNA on Frentz’s shirt. A bullet lodged

near his spine was confirmed by forensic testing to have

come from the SKS. There were four shell casings in the

hallway of the same caliber as the SKS. There were three bul-

let-holes in the door Reynolds had been standing in front of

when he was shot, and also several bullet-holes in Reyn-

olds’s bedroom window. More shell casings, of the same cal-

iber, were nearby.

Frentz told several stories about the events of that morn-

ing. First, he told officers at the scene that he had been asleep

in his bedroom when he heard a scuffle at the other end of

the house. He said he had grabbed the .22, walked down the

hallway, and seen two Hispanic men leaving the house

through the back door. He said that he had had seen Reyn-

olds fighting with a third over the SKS, had put the .22 down

and grabbed the other man, and then had heard two gun-

shots. The Hispanic man then left with the other two in a

sport utility vehicle. The men had gotten in through a win-

dow, Frentz said.

After he had been taken to the police station and miran-

dized, Frentz gave a substantially similar account, adding

that before Frentz had gone to sleep, Reynolds had been

playing cards and drinking beer with two young white men

Frentz didn’t know, that he had heard a motorcycle engine

6 No. 15-3479

when the Hispanic men fled, and that someone had fired

shots from outside the house that passed through the win-

dow and out the back door.

When interviewed by officers later that day, Frentz said

that he had stopped drinking “cold turkey” on Saturday af-

ter thirty years, and had been given medication. He said

that, in a conversation he had had with his mother on the

phone the previous day, he had not told her mother he was

hallucinating, but that he felt “fuzzy” from the medication.

He said that Reynolds had been “just outside of his door”

when he was shot, and that he remembered hearing three

gunshots. He added that the 911 operator had told him to

put pressure on Reynolds’s bleeding wounds, that he had

done so, and that he had loved Reynolds “like my boy.”

The next morning, Frentz asked to speak with officers

again. He told them that he had taken his medication the

night before and that it had caused him hallucinations like it

“was givin’ [him] the DT’s” instead of taking them away. He

added that Reynolds had bought drugs that weekend from a

person interested in his ex-girlfriend, Austin, and wondered

whether that person might have altered the drugs and per-

suaded Reynolds to give him some. He denied, however,

that his medication or any of the drugs he might have taken

could have caused him to “just randomly start shootin’ that

rifle.”

Frentz also spoke, while in county jail, with two other

inmates, Troy Brackett and David Turner, both of whom, un-

fortunately for Frentz, ended up testifying at his trial. Brack-

ett said that Frentz had told him two men, A. J. Guthrie and

Eric Lloyd, had sold methamphetamine to Reynolds and

then tried to steal it back. Reynolds had been accidentally

No. 15-3479 7

shot in the struggle that followed. Brackett also said that lat-

er, Frentz told him that Reynolds and he had argued about

the drugs purchased from Guthrie and Lloyd, who had orig-

inally bought the drugs from Woolsey, who was living with

Austin. According to Brackett, Frentz said he had heard a

noise that night and “played to his role” and shot Reynolds

with the SKS. Frentz is also supposed to have said that

Reynolds “shouldn’t have been messing with [his] old lady.”

Turner testified that Frentz told him he had come home

on Sunday and found Reynolds with Guthrie and Lloyd,

then gone to bed, after rejecting Reynolds’s offer of metham-

phetamine. Later, Frentz got up and told Reynolds that it

was a bad idea to have “all that meth” in front of Guthrie

and Lloyd, who later broke back in to steal it back. Turner

said Frentz asked him what he, Turner, thought of this story;

Turner reportedly said that, if he were on a jury, he would

vote to convict Frentz. Later, Frentz told Turner a version in

which Woolsey and Austin hired Mexicans to break into the

house and kill him for his life insurance policy, but shot the

wrong man. He also said that he had sent Reynolds to per-

suade Austin to come to his house, but that after Reynolds

had been gone for a while, Frentz started to suspect Austin

and Reynolds of being romantically entangled. That night,

Frentz said he had looked out his window and seen Austin

standing next to a telephone pole, and, thinking that she and

Reynolds were planning to run away together, had grabbed

a gun with which to confront Reynolds. Frentz then shot

Reynolds, realized he’d made a mistake, and shot Reynolds

twice more to kill him. Frentz told Reynolds he’d then put

the .22 underneath Reynolds’s body and driven his truck up

and down the road in order to simulate the sound of several

8 No. 15-3479

vehicles leaving his house. Turner said this story kept chang-

ing until it got Turner’s approval.

Frentz also offered to pay both Turner and Brackett to

drop .45 caliber shells outside his house and put pry-marks

on the windows. He told them that his brother had gone into

his house and removed $700 in cash from his jacket pocket

and an ounce of methamphetamine from his jeans pocket. At

one point, while in jail awaiting trial, Frentz received a letter

from Reynolds’s father sarcastically asking for help with the

funeral expenses. Both Turner and Brackett testified that

Frentz threw the included obituary on the floor and told

Brackett that “if he was going to pay for [Reynolds’s] funeral

he would have never killed him.”

On January 27, 2005, Frentz was charged with murder

and felony drug possession, later amended to include felony

charges for possessing anhydrous ammonia and receiving

stolen property. Through counsel, Frentz filed a notice on

February 22, 2005 that he sought to pursue an insanity de-

fense. See Ind. Code § 35-36-2-1. Counsel consulted with Dr.

Philip Coons, and named him as an expert witness as to

Frentz’s physical and mental state at the time of the charged

offenses.3

3 Coons was deposed on December 29, 2005. Coons Dep., ECF No.

28. This deposition was not offered as evidence at Frentz’s state postcon-

viction hearing, or indeed to any court before this one. However, Dr.

Masbaum, who offered testimony at Frentz’s Indiana postconviction

hearing, reviewed and relied on Coons’s deposition. As relevant here,

the deposition proceeded as follows.

Coons, who had reviewed documentation from Frentz’s visit to the

hospital the Saturday before the shooting, and from up to and after the

arrest, indicated that the medication Frentz had been prescribed to help

No. 15-3479 9

Shortly after Coon was deposed, the state sought leave to

have its expert examine Frentz. Before this could happen,

however, Frentz’s counsel withdrew Coons as a witness,

which effectively prevented him from pursuing the insanity

defense at trial. See Ind. Code § 35-36-2-2. At trial, Frentz’s

counsel did present some information that would have sup-

ported such a defense, including that doctors had advised

Frentz to stay in the hospital for at least five days when he

had gone there the Saturday before the shooting, and that he

had claimed to be hallucinating to Brock the night before the

shooting. However, neither Coons nor any other witness

submitted expert testimony about Frentz’s mental state to

the jury.

In his closing argument, counsel argued that Frentz

lacked the required mental state for murder, pointing to the

fact that Frentz had quit drinking after 30 years, had been on

medication, sweating, and had heard mysterious noises just

before the shooting. Counsel argued, appealing to the jurors’

“common sense and experience,” that Frentz had been suf-

with alcohol withdrawal was Ativan. Id. at 6–9. Coons described deliri-

um tremens as “a syndrome … that some people get when they with-

draw from alcohol … characterized by visual hallucinations … fever,

rapid heart rate … [it’s] basically a medical emergency and it requires

hospitalization when it occurs.” Id. at 10. Frentz also stated, however,

that Frentz had denied having these symptoms, despite his claim that he

had suffered from hallucinations, both before and after the time of the

shooting. Id. at 21. While Coons opined that these hallucinations were

brought on by alcohol withdrawal, id. at 23, Coons declared himself un-

able to opine as to whether Frentz had acted voluntarily at the time of

the shooting, id. at 40. This was because, Coons testified, Frentz had re-

fused to discuss the actual moments of the shooting, while continuing to

state in a general way that he hadn’t shot Reynolds. Id.

10 No. 15-3479

fering from delirium tremens and hallucinating. The jury

proceeded to find Frentz guilty on all counts on April 10,

2006. The Court of Appeals of Indiana affirmed, Frentz v.

State, 875 N.E.2d 453 (Ind. Ct. App. 2007), and the Supreme

Court of Indiana denied transfer, Frentz v. State, 891 N.E.2d

36 (Ind. 2008).

Frentz filed a petition for postconviction relief in Indiana

on December 11, 2008. An evidentiary hearing was held on

March 15, 2012, at which Frentz presented the testimony of

Dr. Ned Masbaum, and of his trial counsel, Bart Betteau.

Masbaum testified that he had recently interviewed Frentz,

but had not reviewed police reports, and that in his opinion,

Frentz was of “unsound mind” as a result of delirium tre-

mens at the time the offense was committed. Postconviction

Order 15, Appellant’s Br. App. 38. Masbaum also stated that,

for the first time, Frentz had admitted that he shot Reynolds

by accident, thinking he was an intruder. Betteau testified

that he had experience mounting a defense relying on insan-

ity, and that he had no reason to believe that the trial court

would have refused a request, had he made one, for funds

for a psychiatric report (presumably, this meant a report au-

thored by Coons, or some other psychiatric professional, that

Betteau elected not to request). Id. at 17. The postconviction

court found that Masbaum’s conclusion was based on “selec-

tive and incomplete information,” id. at 18, and that in order

for the result of Frentz’s trial to have been different, had an

insanity defense been mounted, the jury would have had to

accept that Frentz had stopped using alcohol and that the

cessation and resulting delirium tremens had caused him to

be “unable to appreciate the wrongfulness of the conduct at

the time of the offense,” the legal standard for avoiding guilt

by reason of insanity in Indiana. Id. at 15; see Ind. Code § 35-

No. 15-3479 11

41-3-6. The postconviction court found that Frentz had not

shown his trial counsel’s allegedly deficient performance

prejudiced him, Postconviction Order 18, and denied

Frentz’s petition.

The state appellate court affirmed, deeming Frentz’s ar-

gument that his trial counsel was ineffective merely an at-

tempt to relitigate the postconviction court’s determination

that Masbaum’s opinion was based on incomplete infor-

mation, and noting that Frentz had presented no information

showing that his trial counsel had had reason to believe

Frentz met the legal standard for insanity in Indiana. Frentz

v. State, 989 N.E.2d 383, 2013 WL 2405197, at *8 (Ind. Ct. App.

May 31, 2013). The appellate court also characterized Bet-

teau’s failure to raise the insanity defense as a strategic deci-

sion, based on Coons’s evaluation. Id.

Frentz then filed his § 2254 petition in federal district

court in the Southern District of Indiana, making several ar-

guments, of which counsel’s failure to raise the insanity de-

fense is the only survivor. Noting that the Court of Appeals

of Indiana had addressed the insanity argument on its mer-

its, the district court rejected both Frentz’s argument that the

postconviction court’s unwillingness to credit Masbaum’s

opinion had been an unreasonable factual determination,

and his argument that Betteau’s failure to raise the insanity

defense was deficient performance that prejudiced him.

Frentz v. Brown, No. 1:13-CV-1311-TWP-DKL, 2015 WL

5825099, at *13 (S.D. Ind. Oct. 5, 2015). As to the latter, the

district court reasoned that Frentz had failed to provide evi-

dence sufficient to overcome the strong presumption that

counsel’s behavior was an exercise of reasonable professional

judgment. Id. We certified for appeal only the question of

12 No. 15-3479

whether counsel was ineffective for not pursuing an insanity

defense.

II. Discussion

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), 28 U.S.C. § 2254, permits us to grant habeas

relief when, as here, a state court reaches a decision on the

merits of a claim, but only if that decision was “contrary to,

or involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court of

the United States,” § 2254(d)(1), or “was based on an unrea-

sonable determination of the facts in light of the evidence

presented in the State court proceeding,” § 2254(d)(2). The

state court whose decision we review is the last one that

ruled on the merits of the issue. Cossel v. Miller, 229 F.3d 649,

654 (7th Cir. 2000). Frentz’s sole claim before us, that his

counsel rendered ineffective assistance in not ultimately

electing to mount an insanity defense, is governed by the

two-part analysis the Supreme Court developed in Strickland

v. Washington, 466 U.S. 668 (1984). The test requires a peti-

tioner to show “(1) that his counsel’s performance was so de-

ficient as to fall below an objective standard of reasonable-

ness under ‘prevailing professional norms’; and (2) that the

deficient performance so prejudiced the defense as to deny

the defendant a fair trial.” Lee v. Davis, 328 F.3d 896, 900 (7th

Cir. 2003) (quoting Strickland, 466 U.S. at 687–88).

We review the district court’s findings of fact for clear er-

ror, and review its conclusions of law de novo. In re Rovell,

194 F.3d 867, 870 (7th Cir. 1999). Whether a state court’s hold-

ing is an “unreasonable application of” clearly established

law under § 2254(d)(1) is a mixed question of fact and law

that we review de novo, but “with a grant of deference to

No. 15-3479 13

any reasonable state court decision.” Schaff v. Snyder, 190 F.3d

513, 522 (7th Cir. 1999). A state court’s decision is reasonable

when “at least minimally consistent with the facts and cir-

cumstances of the case.” Hennon v. Cooper, 109 F.3d 330, 335

(7th Cir. 1997).

In attacking his trial counsel’s performance, Frentz must

“overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial strate-

gy.” Strickland, 466 U.S. at 689 (quotation marks omitted).

Counsel’s ultimate decision at trial not to pursue an insanity

defense is not deficient performance if counsel “has made a

reasonable decision that makes particular investigations un-

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

2006) (quotation marks omitted).

Here, as the Court of Appeals of Indiana held, there is

abundant suggestion in the record that counsel’s decision not

to pursue an insanity defense further than he did was within

the wide spectrum of permissible strategic decision-making.

Frentz’s attorney initially notified the state that he would

pursue the defense, suggesting that he, like the courts that

have reviewed this case, thought that Frentz’s recent absti-

nence, after years of drinking, might at least potentially have

resulted in hallucinations or other mental incapacity on the

morning of the shooting. Frentz’s statements shortly after the

shooting suggest that, at least on some occasions on the day

before and the days following, he suffered from visual hallu-

cinations. But Coons, the expert retained to evaluate Frentz,

could offer, at least at the time of his deposition, no further

opinion as to whether Frentz was suffering from such hallu-

cinations at the time that, the jury determined, he shot Reyn-

olds. Counsel’s decision to retain Coons, consult with him,

14 No. 15-3479

and then not pursue the defense further, is consistent with

researching and deciding for strategic reasons not to pursue

the insanity defense.

Such potential reasons practically leap from the record.

Frentz changed his story several times, suggesting lucid re-

call of the events and careful attempts to fabricate a cover

story, rather than confusion or an inability to remember ex-

actly what had happened. The testimony of the jailhouse in-

formants, Turner and Brackett, if credited by the jury, was

particularly damaging, both in that it showed a callous dis-

regard for Reynolds’s life inconsistent with having killed

him by accident while hallucinating, and in that it suggested

that Frentz had attempted to conceal his crime by creating

cover stories, beginning almost immediately after the com-

mission of the crime itself when he reportedly drove his

truck up and down the road outside his house (a detail cor-

roborated by other witnesses). A jury could easily have re-

lied on this evidence in disbelieving any claim of mental in-

capacity Frentz might have sought to offer, particularly if

there was no evidence to be offered, either via Frentz’s own

potential testimony or the testimony of experts, that he was

actually or likely suffering from hallucinations at the time of

the shooting. Frentz’s attorney could have determined that

such an unsupported claim would be more likely to inflame

than to persuade the jury, and strategically not have brought

it.

Frentz argues that because Coons didn’t render an opin-

ion as to his sanity at Coons’s deposition, or elsewhere on

the record, before counsel decided not to pursue the insanity

defense, counsel must have been deficient in failing to en-

No. 15-3479 15

gage another expert and to present the insanity defense.4

Appellant’s Br. 20–21. But this line of argument assumes,

without support beyond Masbaum’s testimony, that it was or

should have been evident to counsel that an insanity defense

would have been meritorious and should have been pur-

sued. For all the evidence on the record, counsel may well

have consulted further with Coons, spoken with his client

more, or asked Coons to speak with Frentz again, and de-

termined on the basis of that research that an insanity de-

fense would be unavailing.5 Frentz offers no evidence to the

contrary.

Furthermore, we do not find that the postconviction

court’s unwillingness to credit Masbaum’s minimally sup-

ported opinion was an unreasonable determination of the

facts. Rather, it appears eminently reasonable for the post-

conviction court not to have accepted Masbaum’s determina-

4 Respondent argues that Frentz failed to make this failure to inves-

tigate claim as part of his ineffective assistance of counsel argument be-

fore the Indiana courts, and that he has therefore procedurally defaulted

it. Respondent’s Br. 14. However, as explained here, neither counsel’s

decision not to engage another expert, nor his eventual decision to with-

draw the expert and not make an insanity argument before the jury,

were ineffective in any case.

5 One suspects, too, reading Coons’s deposition closely, that the doc-

tor may have engaged in a certain amount of strategic hedging when

asked point-blank by counsel for the government whether Frentz had

been able to appreciate the wrongfulness of his actions on the morning of

January 24. Coons was unable to opine even tentatively that Frentz’s al-

cohol withdrawal had impaired his judgment. Instead he demurred, say-

ing that Frentz’s condition “may have had,” Coons Dep. 40, some effect

on his ability to make decisions, and attributing his uncertainty to not

having been able to ask Frentz about the “point in time,” id., when the

shooting happened.

16 No. 15-3479

tion that Frentz was legally insane at the time of the shoot-

ing, when that determination was rendered on partial con-

sideration of the record evidence, which showed that Frentz

never admitted to having hallucinated at the time of the

shooting, and when Coons’s own evaluation, upon which

Masbaum claimed to rely, had been indeterminate. In addi-

tion, Masbaum’s opinion rested on Frentz’s own potentially

strategic alteration of his story. Frentz had told Masbaum a

different story than he had told Coons, admitting five years

after the fact to having shot Reynolds. This could easily be

construed by the Indiana postconviction court as a self-

serving attempt to get a second bite at the apple. One of the

reasons Coons professed himself unable to say whether

Frentz had been insane at the time of the shooting is that

Frentz had not described the moment of the shooting to

Coons, and maintained that he had not shot Reynolds. A de-

fense of insanity—having shot Reynolds but not being guilty

of it by reason of mental state—is, at least logically, incom-

patible with a defense of not having shot Reynolds at all. See

Wisehart v. State, 693 N.E.2d 23, 38–39 (Ind. 1998) (collecting

cases where courts have rejected claims of ineffective assis-

tance of counsel for failing to raise a defense based on men-

tal state because such defenses would have conflicted with

the trial defenses of actual innocence). Frentz’s apparent ad-

amance at the time of trial that he did not shoot Reynolds

likely posed formidable obstacles to any argument counsel

might have wanted to make that Frentz did shoot Reynolds

but was not culpable of it because he was insane.

Certainly, none of the evidence Frentz has submitted is

sufficient to show the Court of Appeals of Indiana was un-

reasonable in finding Frentz’s trial counsel was not ineffec-

tive.

No. 15-3479 17

Turning to the prejudice portion of Strickland, it is also

easy to see that the appellate court was not unreasonable in

finding Frentz suffered no prejudice by his attorney’s deci-

sion not to bring the insanity defense. Frentz must demon-

strate “a reasonable probability that, but for counsel's unpro-

fessional 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 confi-

dence in the outcome.” Id. And, in review of the state court’s

decision, we must allow “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).

As Frentz observes, while his trial counsel did not mount

an insanity defense, he attempted to use the evidence Frentz

thinks should have been put toward the insanity defense—

his possible delirium tremens and hallucinations, more or

less—to negate the intent element of Indiana murder. See

Ramsey v. State, 723 N.E.2d 869, 871 (Ind. 2000) (murder is the

knowing or intentional killing of another). Evidence about

Frentz’s drinking and abstinence was introduced, as was

Brock’s description of Frentz’s reported hallucinations. And

counsel argued in closing that Frentz had suffered from hal-

lucinations, and might have suffered from them during the

crucial moments at which he shot Reynolds. Frentz

acknowledges all of this, but argues that without scientific

explanation, in the form of expert testimony, about what de-

lirium tremens is and how it might have affected Frentz’s

judgment and consciousness, and without an insanity-

defense instruction, the jury was unable to determine, as

they should have, that Frentz was unable to appreciate the

wrongfulness of his conduct at the time of the offense. See

Ind. Code § 35-41-3-6.

18 No. 15-3479

But Coons’s expert testimony, as conveyed in his deposi-

tion, would add little to the layperson’s sense, adequately

conveyed by the testimony at trial, that Frentz might have

suffered visual and auditory hallucinations, or been disori-

ented as to where he was and the identity of the people with

whom he was interacting. It is difficult to see how the addi-

tion of Coons’s (or another doctor’s) medical analysis of such

symptoms would have lent more weight to counsel’s argu-

ment, or how a jury, given the added option to find Frentz

not guilty by reason of insanity, would have done so on the

strength of just this evidence, when, in the event, that same

jury did find him guilty of a knowing or intentional killing.

In any case, the Court of Appeals of Indiana did not rule un-

reasonably when it determined that the outcome would have

been the same had Frentz’s attorney presented the insanity

defense. See Stevens v. McBride, 489 F.3d 883, 893 (7th Cir.

2007) (deferring to Indiana Supreme Court’s conclusion that

no jury could conclude defendant did not appreciate the

wrongfulness of his acts at the time of a killing).

For these reasons, we AFFIRM the district court’s denial

of a writ of habeas corpus.