# Appendix — Buss v. Stevens (No. 07-1016)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604

August 28, 2007

Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge

Nos. 05-1442

CHRISTOPHER M. STEVENS,

Appeal from the United States District Court for
the Northern District of Indiana, Petitioner-
Appellant, Hammond Division.

No...03 C5

DANIEL R. MCBRIDE,
Superintendent, Allen Sharp, Judge.

Respondent-Appellee,

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ORDER

Respondent-Appellee filed a petition for rehearing and
rehearing en banc on July 2, 2007, and Petitioner-
Appellant filed a petition for rehearing and rehearing en
banc on July 27, 2007.

No judge in regular active service has requested a vote
on the petitions for rehearing en banc, and all members of
the onginal panel have voted to DENY rehearing.
Accordingly,

IT IS ORDERED that the petitions for rehearing and
rehearing en banc are DENIED.

IT IS FURTHER ORDERED that the opinion
released on June 18, 2007, is amended as follows:

Section III of the original opinion is withdrawn, and is -
replaced with the following new section:

Appeal no. 05-1442 Page 2

ITI

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
instructions to issue a wnt of habeas corpus that vacates
the current sentence of capital punishment. The State of
Indiana is free to conduct a new death penalty hearing,
providing that it files appropriate documents seeking such
relief within 120 days of the mandate from this court.

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United States Court of Appeals

Hor the Sebenth Circuit

No. 05-1442

CHRISTOPHER M. STEVENS, Petitioner-Appellant,
Vv.

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 Woop, Circuit Judges.

WOOD, Circuit Judge. Christopher Stevens, an
emotionally 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 expert psychological testimony at his trial
amounted to ineffective assistance of counsel and deprived

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him of his only opportunity to avoid conviction and a
death sentence. We conclude that the defense attorneys
provided in effective 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 repeat
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
molestation. 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

SA

by smothering him with a pillow and then strangling him
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,
confronting 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,
explaining 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

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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 physically, mentally, and emotionally
abused as a child, and had been raped by a stranger when
he was 10 years oid. Medical records from a ‘psychiatric
facility where Stevens was briefly a patient reported that he
had attempted 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 explicit
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
hallucinations 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
children (mostly boys) and has shot and killed
one boy out west (later he recanted this story). .

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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 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
pedophiha 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 necessary.

Upon receipt of the report, Stevens’s lawyers
immediately 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.”

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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
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
professional 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
intentional homicide because he acted in a state of sudden
heat provoked by Snider’s threat to disclose Stevens’s
molestation 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
presented 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 nourished,
never loved . . . and in some cases we'll actually give a

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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 “[wle 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.”’

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 . . . {are active] attachment disorder,” which,
according to Dr. Lennon, means that Stevens is “going to
live . . . by using people.” Dr. Lennon also stated that’
Stevens is “emotionally 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
responded that Stevens had admitted that he had done so.
Dr. Lennon had never disclosed this devastating fact to
defense counsel.

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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
recommendation 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:

[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
conviction 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
Antiterronsm and Effective Death Penalty Act of 1996
(AEDPAY¥, 28 U.S.C. § 2254, which permits a federal court

LIA

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
unreasonable 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
determination 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
assistance 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
performance prejudiced his defense.

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 tral
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
proceedings, 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’

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performance 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
presumption that, under the circumstances, the challenged
action might be considered -sound trial strategy.”
Strickland, 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).

In an attempt to overcome the presumption of sound
trial strategy, Stevens relies on his lawyers’ frank
admissions 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 aiternative
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 explicitly
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

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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
jailhouse statement.

The general qualifications of an expert witness do not
guarantee that the witness will provide proficient
assistance 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 propositions
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 “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 reliable 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 tral, however, Indiana had a rule
very much like the present Fep. R. Evip. 702, or like IND.
R. Evip. 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,

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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 tnal 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 mentai disorders. See
http: / /www.psych.org/about_apa/. They, and the
psychologists who frequently work with them, would
undoubtedly take issue with the idea that they are tackling
a “myth.”)

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]Jothing in these
facts” indicates that Stevens acted in “sudden heat” as
defined by Indiana law, since “words alone cannot
constitute 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)).

ISA

Nor ts the State’s assertion that a mental illness defense
would have opened the door to Eastin’s testimony
particularly telling. As Stevens correctly points out, the
same door would have been opened if counsel had
managed to obtatn 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
ineffective. 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
ineffective 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.

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
wrongfulness 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

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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 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 available.
Strickland requires him to demonstrate “a reasonable
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

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sufficient to undermine confidence in the outcome.” Jd.
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
unreasonable. 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
conclude that the Indiana Supreme Court did not
unreasonably apply Strickland in determining that Stevens
was 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 tral 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 nght
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

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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 ineffective 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.” Zd. 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
petitioner 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
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 counsel’s
performance as a whole for purposes of granting
certificates of appeal ability 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 attorney],
rather than a specific failing, that constitutes the ground of
relief.”), the purposes behind the rules of procedural

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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 procedural 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 test nony, 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
inadequacy of defense counsels’ handling of expert
psychological 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 caili 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
investigated Stevens’s mental health through Dr. Lennon

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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 lawyers’ 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
“It}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 conductor
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
mitigating circumstance that could have applied to Stevens
under Indiana law was the catch-all “{a]ny other circumstances
appropriate for consideration.” Ind. Code § 35-50-2-%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

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counsel’s performance during the trial itself. Jd. at 686-87.
In other words, the petitioner must demonstrate that
counsel was ineffective and that the petitioner was
prejudiced by counsel’s performance. /d. 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] are liable 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.” Jd. Although
counsel’s strategic choices are given considerable
deference, “strategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations
on investigation.” Jd. at 690-91.

Strickland particularly referred to “[p]revailing norms
of practice as reflected in American Bar Association
standards” 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. /d. 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

22A

Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989).'

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 theones 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(cX2) & (6). Stevens contends that this
failure to investigate and present mitigation evidence 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

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 ineffective
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.

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consider that at the sentencing phase Stevens had nothing
left to lose. The lawyers’ decision to forego presenting this
kind of mitigation evidence was made without 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 tnal 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 performance
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

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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 tral, only ... upon a showing of exceptional
circumstances... .”); cf. Beauchamp v. Indiana, 788 N.E.2d
881, 892 (Ind. Ct. App. 2003) (applying Rule26(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
sentencing 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
proceedings fell below the constitutional minimum.

We thus turn to the prejudice inquiry. The Strickland
Court held that in order to show prejudice, “[t]he
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466
U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Jd.

As it did for the guilt phase of the trial, the Indiana
Supreme Court reasoned that Stevens was not
disadvantaged by his counsels’ failure to develop
mitigation evidence 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

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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
Strickland, 466 U.S. at 694. Competent evidence of
Stevens’s mental illness would have strengthened the
general mitigation evidence presented by defense counsel
concerning Stevens’s difficult background by focusing the
jury on 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

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difference. And unlike general mitigation evidence
concerning Stevens’s background, evidence about
Stevens’s severely dissociated condition and impaired
ability to appreciate the wrongfulness of his conduct at the
time of the killing would have provided his lawyers a basis
for rebutting the aggravating 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 counsel
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
dangerousness—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
references 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
constitutional 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.

C. Other Claims

In addition to his arguments about his counsels’
handling of the expert psychological evidence, Stevens

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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 constitutional
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 appeared
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.

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,

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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 although
“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 cause shown grants
leave to do so, but not otherwise.” The district court
concluded that discovery was not war-ranted in this case

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because the letters Stevens presented as evidence of the
alleged deal showed only that prosecutors 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.

Ill

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
instructions 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.

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

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habeas relief with respect to his conviction as well as
his sentence.

..

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 “[ijn 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 12.2

The pnncipal opinion turns then to Strickland’s
prejudice prong to determine whether Mr. Stevens’
conviction may have been affected by counsel’s failure.

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 tnal 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
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 justification for only
_ pursuing the former course.

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After reviewing the standards for mental illness under
Indiana law and also the standard for demonstrating
prejudice under Strickland, the principal opinion concludes
that “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.” Jd. 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 conviction 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 than to preyudice—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 manslaughter 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

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performance.” Jd. 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
unmistakably 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.” Jd. 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.” Jd.
(internal quotation marks and citations omitted). “As a
practical matter, a federal court cannot apply the
deferential standard provided by § 2254(d) in the absence
of any state court decision on the issue.” Jd. 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
conclusion with respect to prejudice, as neither of the state
courts below reached this prong of the Strickland analysis.”

33A

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;’ we

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 substantia!
incriminating evidence not otherwise presented during the guilt
phase.’ ” /d. 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 have been
encompassed by the reference to “substantial incriminating
evidence.” However, it also may be the case that the Supreme
Court of Indiana did not agree with the tnal court’s conclusion
that the additional facts fundamentally altered the jury’s view of
the “relationship” hetween 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.v., 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 ‘orcible, not consensual, the jury already would

34A

look to see only whether there is a reason 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’ 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 theones 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

have considered Mr. Stevens to be a sexual predator. In short, the
jury’s view would not have changed with the introduction of this
additional evidence.

Thus, even assuming that the Supreme Court of Indiana’s
commentary on “openfling] the door to the admission of
substantial 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 tral court’s findings
concerning the nature of the relationship between Zachary and
Mr. Stevens. Consequently, these findings should not factor into
this court’s AEDPA analysis.

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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 wrongfulness 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
fundamental difference between mounting an insanity
defense and establishing statutory mitigating factors for
purposes of 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 § 3541-34.

_36A

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
“It]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.

~

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 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

37A

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
dissenting in part. I join the opinion of the court as to part
I]-C regarding the claims concerning the stun belt and
discovery 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
respectfully dissent from the granting of habeas relief for
the 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 video taped 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

38A

with him. Because a fuller recitation of the facts is
significant 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 relationship
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 concerning Stevens having
sexual relations with dZachary’s mother.
Because of this rumor, Zachary threatened to
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.

39A

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
unconscious, 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 for the defense
that he killed for fear of having to return to
prison brought on by Zachary’s threat to tell.

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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 bike* 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
f 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 brether’s beds.
He also played basketball with White, during

[Footnote in original.}] Zachary’s bike was already in the garage
because, Stevens stated, ‘““whenever he comes over | have him put
his bike in the garage [. . . ] so [ ] nobody will see his bike there.”

4IA

which time he saw the Sniders dnving around
the neighborhood looking for Zachary. When
he and White finished playing basketball,
Stevens called Mrs. Snider to learn the status of
their 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 wouid “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

&

42A

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
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 similar 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 decomposition,
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
examined 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.

43A

Stevens v. State of Ind., 691 N.E.2d 412, 418-19 (Ind. 1997)
(internal c..ations 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 tnal, 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 inadequate 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
determination was contrary to or an unreasonable
application of Supreme Court precedent, or an
unreasonable determination 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 assistance 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 bnight-
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

44A

fand] § 2254(d)(1) adds a layer of respect for a
state court’s application of the legal standard.” Jd.

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
opinion 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 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 Strickland, 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

45A

that, upon the defendant’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-
conviction experts, Dr. Coons, ‘“acknowledge[ed] that
[Stevens] could appreciate the wrongfulness of his conduct
when he took steps to hide Zachary’s body.” Jd. 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 psychological
evidence altered the nature of the sexual encounters
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
relations. And then after the sexual relations
were concluded, Zachary told him, you know,
“I’m going to tell my mother about what you

46A

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 anything wrong with
it. And that’s probably the greatest problem for
him with the Zachary murder is that this was
the first ttme 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
mention 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
incriminating 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 guilt
phase is not contrary to or an unreasonable application 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

47A

the use of Dr. Lennon.” Stevens, 770 N.E.2d at 755. The
court further quoted with approval the tnial court’s
finding that ‘“ ‘[dljefense 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. /d. 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.

ac

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 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 attempts, ai 1 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]Jounsel 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

48A

probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and
mitigating circumstances did mot warrant death.”
Strickland, 466 U.S. at 695. The prosecutors argued 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 unavoidably
points towards an opposite result” from the state tral
court’s conclusion that counsel were not ineffective.
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
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
testimony presenting the diagnosis of disassociation.
Strickland, 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.

49A

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

SOA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE

CHRISTOPHER M. )
STEVENS, ) CAUSE NO.
) 4:03-CV-005 AS
Petitioner, )
)
V. )
)
DANIEL McBRIDE, ) DEATH PENALTY CASE
)
Respondent. )

MEMORANDUM AND ORDER

This proceeding is a petition filed by counsel on behalf
of the petitioner, Christopher M. Stevens, seeking relief
under 28 U.S.C. § 2254 from a state court criminal
proceeding in which ‘he was sentenced to death. An
extended oral argument, lasting. nearly 2 hours, was held
on the petition in South Bend, Indiana on December 6,
2004. This court greatly appreciates the professional
services of appointed counsel for Mr. Stevens.

Two published opinions of the Supreme Court of
Indiana will provide the basic factual setting of this case.
In Stevens v. State, 691 N.E. 2d 412 (Ind. 1997), the
unanimous decision of the Supreme Court of Indiana was
written by Chief Justice Shepard and entered on December
31, 1997. In Stevens v. State, 770 N.E. 2d 739 (Ind. 2002),
the unanimous decision of the Supreme Court of Indiana
was written by Justice Dickson and entered on June 26,
2002. The massive state record has been filed and

SIA

examined here pursuant to the mandates of Townsend v.
Sain, 372 U.S. 293 (1963), as well as 28 U.S.C. § 2254.

I. STANDARD OF REVIEW

{[U]nder § 2254(d) it must be shown that the
[state] Supreme Court’s decision was either
contrary to, or am unreasonable application
of, {the United State Supreme Court’s]
clearly established precedents, or was
based upon an unreasonable determination
of the facts.

Price v. Vincent, 538 U.S. 634, 639 (2003).

[A] decision by a state court is “contrary to”
our clearly established law if it “applies a
rule that contradicts the governing law set
forth in our cases or if it confronts a set of
facts that are materially indistinguishable
from a decision of this Court and
nevertheless arrives at a result different
from our precedent.

Price, 538 U.S. at 640. (Quotation marks omitted.)

[T]he phrase “clearly established Federal law,
as determined by the Supreme Court of the
United States” .. . refers to the holdings, as
opposed to the dicta, of this Court’s
decisions as of the time of the relevant state-
court decision.

52A

Williams v. Taylor, 529 U.S. 362, 412, (2000).

[A]s the statutory language makes clear, . . §
2254(d)(1) restricts the source of clearly
established law to this Court’s
jurisprudence.

Williams, 529 U.S. at 412.

As we have explained, a federal habeas court
may not issue the writ simply because that
court concludes in its independent
judgment that the state-court decision
applied a [United States] Supreme Court
case incorrectly. Rather it is the habeas
applicant’s burden to show that the state
court applied [that case] to the facts of his case
in an objectively unreasonable manner.

Price, 538 U.S. at 641 (quotation marks, citations and
brackets omitted). See also Early v. Packer, 537 U.S. 3
(2002), Woodford v. Visciotti, 537 U.S. 19 (2002), and
Wiggins v. Smith, 539 U.S. 510 (2003)

Thus, the. United States Supreme Court has made
clear that it is not for this court to decide the merits of the
petitioner’s arguments from scratch. Rather, the task laid
out before this court in a § 2254 habeas corpus petition is
to determine whether the decision of the state court, in this
' case the Indiana Supreme Court, falls outside of that broad
swath of reasonable interpretations of the law based solely
on the holdings of United States Supreme Court opinions
at the time of the state court decision.

S3A

Ii. LEY TER REQUESTING DISMISSAL

As a preliminary matter, the petitioner, acting pro se,
wrote a handwritten letter to this court asking that this case
be dismissed. Given that the court is now denying this
habeas corpus petition on the merits, the question of
dismissal is rendered moot.

III. INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL

The petitioner, in his first three claims for relief, argues
that his trial counsel were ineffective for many reasons.
The clearly established law on the Sixth Amendment was
presented in Strickland v. Washington, 466 U.S. 668 (1984).°
In order to prevail on an ineffective assistance claim, the
petitioner must establish two elements: first, that counsel’s
performance fell below an objective standard of reasonably
effective representation; and second, that the “deficient
performance prejudiced the defense.” Strickland, 466 U.S.
at 687. For the first prong, the petitioner must identify the
acts or Omissions of counsel that are alleged not to have
been the result of reasonable professional judgment. The
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.

Strickland, 466 U.S. at 690. On the second prong, the
petitioner must show a “reasonable probability that, but
for counsel’s unprofessional errors the result of the
proceeding would have been different.” Strickland, 466
US. at 694.

° Though the petition contains citations to Wiggins v. Smith, 539

U.S. 510 (2003), this case postdates the Indiana Supreme Court
cases and is ther-fore inapplicable to the analysis at hand.

A.

The petitioner argues that, “delays in_ the
investigations impacted the defense’s ability to prepare and
secure necessary experts”. Petition at 20, docket # 18. The
Indiana Supreme Court addressed this claim in reviewing
the denial of his post-conviction relief petition.

The defendant claims, in part, that his
counsel unreasonably delayed their
investigation. Stevens was tried for murder in
January 1995, within seventeen months of his
arrest in July 1993. Defense counsel entered
their appearances in August 1993. In
November 1993 counsel made their first
request for funding for experts. This request
was granted in May 1994 along with funds for
an investigator. Funding for mitigation
investigation was secured in January 1994, and
a mitigation specialist joined the defense.
Defense counsel periodically requested
additional amounts for the mitigation, fact, and
expert witnesses. Such funding requests were
approved. Billing records indicate _ that
information was being gathered, procedural
issues were being worked out with the
prosecutor and the court, and research was
being done on Iegal issues during the three
months before the first funding request.
Because of successful motions for continuance,
Stevens was not tried until seven months after
the time counsel added the psychologist and
the fact investigator to their team of a paralegal
and mitigation investigator. These facts do not
compel a finding of deficient performance in the
timing of trial counsel’s investigation.

55A

Stevens v. State, 770 N.E. 2d 739, 748 (Ind. 2002) (footnote
and citation omitted). The Indiana Supreme court
reviewed the pre-trial history of this case and examined the
chronological relationship of the events in question.
Despite some initial delays, the court found that the fully
constituted defense team had seven months to prepare for
trial because of counsel’s success in postponing the trial. In
light of the curative effect of the continuances, it was not
an unreasonable application of Strickland for the Indiana
Supreme Court to hold that these investigative delays were
within the range of professionally competent assistance
and that they did not render trial counsel ineffective.

B.

The petitioner argues that, “defense counsel secured
the services of an incompetent expert without making any
effort to familiarize themselves with the potential expert’s
forensic approach” (petition at 22, docket # 18); that “Dr.
Lennon’s ‘specialty’ was not relevant to Christopher
Stevens” (petition at 25, docket # 18); that “Dr. Lennon
was retained under fraudulent circumstances” (petition at
27, docket # 18); and that “defense counsel were aware
that Dr. Lennon’s ‘myth of mental illness’ views were far
outside the professional ‘mainstream.’” (petition at 27,
docket #18). The Indiana Supreme Court addressed these
claims related to expert competence and tnal counsel’s
investigation thereof in the appeal from the denial of his
post-conviction relief petition.

Dr. Lennon had been recommended by the
mitigation investigator. Other members of the
criminal defense community also told Stevens’s
attorneys that Dr. Lennon had done a “very
nice job” in testifying in another death penalty
case. Dr. Lennon holds a Ph.D. in clinical
Psychology from Miami University in Ohio.

S6A

He was a psychology professor at St. Joseph’s
College, where he spent four years as the chair
of the Psychology Department, and was
clinical director of the Child and Adolescent
Psychiatric Center at Humana Hospital in
Indianapolis from 1991 to 1994. Dr. Lennon
conducted a preliminary evaluation of the
defendant prior to April 13, 1994 and met with
him five times from June through December
1994. Dr. Lennon also met with the
defendant’s parents and siblings, and reviewed
school records, records from the Hamilton
Center, and arrest records. Other individuals
from Dr. Lennon’s office, including a social
worker and another psychologist, participated
in evaluations of the defendant. Defense
counsel considered Dr. Lennon a good fit
because of his expertise in treating children and
adolescents, and the defendant’s attorneys
sought and received a transcript of Dr.
Lennon’s testimouy in a case the attorneys felt
had simular issues.

Stevens v. State, 770 N.E. 2d 739, 747-48 (Ind. 2002). It was
not unreasonable for the Indiana Supreme Court to have
found that Dr. Lennon was a competent expert. He
possessed the necessary professional credentials and he
examined and evaluated the defendant. It is widely known
that there is a great range of opinion within the
psychological community. Though the petitioner believes
that he could have obtained a more advantageous expert,
based on these facts, it was not unreasonable for the
Indiana Supreme Court to have found, without regard to
his specialties or his approach to psychology, that he was a
competent expert. Neither was it an unreasonable
application of Strickland for the Indiana Supreme Court to

STA

hold that the degree to which trial counsel familiarized
themselves with Dr. Lennon’s credentials, though certainly
they could have done more, was within the range of
professionally competent assistance.

i.
6

The petitioner presents several arguments about Dr.
Lennon’s report and testimony. Prior to knowing about
Dr. Lennon’s ‘specialty’ or that he fell far outside the
professional mainstream of mental health experts, counsel
guaranteed that Dr. Lennon would generate a report that
would be provided to the State. Petition at 24, docket # 18.
From “out of the blue” Dr. Lennon generated a
completely unauthorized report without consulting
counsel as to the content of that ‘report.’ Petition at 39,
docket # 18 (emphasis in original). Objectively, counsel
should never obtain a report from an expert without
knowing what is going to be in it. Petition at 42, docket #
18. Dr. Lennon devised his own ‘strategy’ that mandated
his unilateral decision to testify at tnal. Petition at 58,
docket # 18. Defense counsel called Dr. Lennon as a
penalty phase witness without knowing about what he
intended to testify. Petition at 59, docket # 18. Dr.
Lennon’s penalty phase testimony, anchored in the
information and opinions served up in the unauthorized
‘report,’ introduced the issue of ‘future dangerousness’ into
the penalty phase. This was highly prejudicial to Mr.
Stevens. Petition at 60, docket # 18. The Indiana Supreme
Court addressed these claims in the appeal from the denial
of his post-conviction relief petition.

The defendant also faults his trial counsel for
providing a copy of Dr. Lennon’s report to the State prior
to trial. We note, however, that the report was provided in
compliance with the trial court’s order that any reports

58A

from experts [were] to be submitted to the State sixty (60)
days in advance of trial. On motion of the defense, the trial
court extended the deadline for the exchange of reports
from experts to July 19, 1994. The defense thereafter supplied
the report.

Stevens v. State, 770 N.E. 2d 739, 748 n.4 (Ind. 2002)
(quotation marks and citations omitted).

Citing Ake v. Oklahoma, 470 U.S. 68 (1985), the
petitioner argues that the Indiana Supreme Court was
unreasonable in finding that trial counsel were not
ineffective for agreeing to provide a copy of the report to
the State. This was not unreasonable because Ake did not
require a confidential psychological report.

We therefore hold that when a defendant
demonstrates to the trial judge that his sanity at
the time of the offense is to be a significant
factor at trial, the State must, at a minimum,
assure the defendant access to a competent
psychiatrist who will conduct an appropriate
examination and _ assist in evaluation,
preparation, and presentation of the defense.
This is not to say, of course, that the indigent
defendant has a constitutional nght to choose a
psychiatrist of his personal liking or to receive
funds to hire his own. Our concern is that the
indigent defendant have access to a competent
psychiatrist for the purpose we have discussed,
and as in the case of the provision of counsel we
leave to the State the decision on how to
implement this nght.
Ake v. Oklahoma, 470 U.S. 68, 83 (1985). It was not an
unreasonable interpretation of Ake for Indiana to require

disclosure of the report. Obviously, if disclosure was
required, then so too was the creation of the report;

S9A

therefore it was not created “out of the blue”. Though it is
self-evident why defense counsel would like the
opportunity to shape and tailor both the psychological
report and Dr. Lennon’s testimony, Ake did not create
such requirements. Indeed, Ake made clear that an
indigent defendant did not have “a constitutional right to
choose a psychiatrist of his personal liking .. ..” Ake, 470
USS. at 83.

D.

The petitioner presents several arguments concerning
intent and the voluntary manslaughter defense versus a
mental illness defense.

By defending this case in accordance with the
views of Dr. Lennon{,] defense counsel
conceded any possible defense that would
question Mr. Stevens’ “intent” during the
commission of the homicide. This was in
spite of the fact that counsel were aware
of facts that impacted upon the question

of the Mr. Stevens’ “intent.”
Petition at 30, docket # 18.

Defense: counsel failed to properly investigate
Petitioner’s substance and alcohol abuse,
failed to develop this evidence, and failed

' to seek or secure the services of an alcohol
and substance abuse expert.

Petition at 35, docket # 18.

In spite of recognizing these shortcomings of
Dr. Lennon, and realizing that the defense
needed additional experts to defend the
case, defense counsels [sic] never sought
additional funding to secure other experts.

60A

Petition at 43, docket # 18 (emphasis in original).

Defense counsels [sic] adopted a theory of
defense that did not focus upon the issue of
Mr. Stevens’ “intent” at the time of the
homicide. The defense of ‘Voluntary
Manslaughter’ was not supported by any
facts as counsel knew them to be or law.
Defense counsel did not know the law.

Petition at 45, docket # 18.

It was unreasonable and prejudicial for defense
counsel to proceed with the untenable
‘voluntary manslaughter’ defense given
that a viable mental illness defense was
available.

Petition at 47, docket # 18.

Petitioner was prejudiced by trial counsel’s use
of the untenable ‘voluntary manslaughter’
defense. Even if counsel had only been able
to secure a ‘guilty but mentally ull’ verdict,
such would have been a circumstance
rendering the death penalty inappropriate.

Petition at 50, docket # 18. The Indiana Supreme Court
addressed these claims at length in its review of the denial
of his post-conviction relief petition.

During the guilt phase trial, the defense
strategy was to urge that the killing was done in
sudden heat and thus, if the defendant were
guilty, he was guilty of voluntary manslaughter
and not murder. At post-conviction, defense
counsel testified that this was one of the
alternative theories they had been considering
from “day one,” and when _ Stevens’s

61A

confession was not suppressed, voluntary
manslaughter became the theory of the case.
Counsel based this theory on a statement in the
defendant’s confession that he “snapped” or
“went off.” Defense counsel tendered an
instruction on voluntary manslaughter, which
the trial court refused to give. During closing
argument, defense counsel nevertheless asked
the jury to return a verdict of voluntary
manslaughter.

While the defendant argues in retrospect
that a mental illness defense would have been
more effective, his proposed avenue was not
without its pitfalls. The post-conviction court
noted that, had defense counsel pursued this
defense, they 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 defendant’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. The trial court determined that defense
counsel adequately investigated issues of
substance abuse and mental illness and
reasonably chose to pursue a different strategy.
[FN5] The post-conviction court did not err in
denying relief on this ciaim.

Stevens v. State, 770 N.E. 2d 739, 749 (Ind. 2002) (citations
omitted). In footnote 5, the court stated.

The post-conviction court concluded, in
part: With the benefit of hindsight, Petitioner’s

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present counsel suggest that trial counsel
should have adopted the defense of mental
disease or defect (Ind. Code § 35-41-3-6) and
should have presented psychiatric evidence that
Petitioner was unable to form the mens rea
necessary tO commit intentional murder.
However, if Petitioner had raised the insanity
defense, he would have opened the door to the
admission of incriminating evidence that was
not presented during the guilty [sic] phase of
his trial . . .. Moreover, the facts of the crime
itself militate against insanity . . .. Against this
backdrop, Dr. Coons’s testimony that, in his
opinion, Petitioner’s ability to appreciate the
wrongfulness of his conduct was “impaired”
would have had little ~~ no effect on the jury’s
verdict, particularly i: ight of Dr. Coons’s
acknowledgment that Petitioner could
appreciate the wrongfulness of his conduct
when he took steps to hide Zachary’s body.

Stevens v. State, 770 N.E. 2d 739, 749 n.5 (Ind. 2002)
(ellipsis in onginal, citation omitted). Finally, in a section
titled, “Pursuing Voluntary Manslaughter as Defense
Theory”, the court concluded its discussion.

The defendant claims that his trial counsel
were ineffective for pursuing a “fundamentally
flawed” approach to the case by proceeding on
a theory of voluntary manslaughter. They
tendered three proposed instructions that dealt
with voluntary manslaughter, but these were
rejected by the trial court. The defendant
argues that there was no evidence in the record
to support this theory, and that there was
another viable defense available but not used.

63A

The defendant urges that, if defense
counsel had consulted other mental health
experts, counsel would have learned of the
defendant’s dissociative disorder, borderline
personality disorder, chemical dependency, and
LSD impairment at the time of the offense. In
the post-conviction proceedings and in this
appeal, the defendant’s present counsel assert
that the defendant was raped as a child; that at
the time of the killing the defendant switched
- his identity with that of Zachary; that the
defendant killed Zachary because it’s what he
would have wanted in that molestation at age
10, to have been killed by his abuser; and that
the defendant’s ability to appreciate the
wrongfulness of his conduct was disengaged
when he was dissociating. The defendant
argues further that, even if the voluntary
manslaughter defense were regarded as
legitimate strategy, this would not excuse the
failure to present the mental illness defense.

The post-conviction court found that
counsel’s decision to pursue the voluntary
manslaughter strategy, while ultimately
unsuccessful, did not amount to deficient
performance. The court pointed out that any
appreciable evidence of sudden heat justifies an
instruction on voluntary manslaughter, and
that sudden heat is defined as provocation
arising from a variety of emotions. In the
defendant’s admissions of guilt to his brother,
the defendant said that he “clicked” or “went
off’ when Zachary threatened to tell his parents
about the defendant’s sexual conduct. In the
defendant’s confession to police, he stated that

64A

he killed Zachary because he was afraid that
Zachary would report him. Concluding that the
defendant received effective assistance of
counsel as to their strategy to pursue voluntary
manslaughter instructions, the post-conviction
: court found that the defendant’s trial attorneys
pursued the most viable defense available to them.

As to the failure to present a mental illness
defense during the guilt phase, the post-
conviction court noted that, had defense
counsel done so, they would have opened the
door to the admission of _ substantial
incriminating evidence not otherwise presented
during the guilt phase. As we noted above, this
included testimony that, upon the defendant’s
prior release from jail to probation for a
previous conviction of child molesting, the
defendant had declared his intent to kill his next
child molesting victim to avoid returning to jail.

We conclude that the evidence as a whole
does not lead unerringly and unmistakably 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.

Stevens v. State, 770 N.E. 2d 739, 752-53 (Ind. 2002) ©
(brackets, quotation marks, and citations omitted).

It was not unreasonable for the Indiana Supreme
Court to find that pursuing a mental illness defense was
fraught with pitfalls and would have had little or no effect
on the jury’s verdict. Neither was it an unreasonable
interpretation of Strickland for the Indiana Supreme Court
to have held that trial counsel were not ineffective even
though they pursued a manslaughter defense and did not

65A

pursue a mental illness defense. Though the manslaughter
defense was unsuccessful, fraught with similar pitfalls as
the mental illness defense, and not supported by the
- evidence which was presented at trial; there are simply
some cases for which there is no good defense. See Florida
v. Nixon, _ U.S. ___, 125 S.Ct. 551 (2004).° Trial counsel
cannot be deemed ineffective merely because they drew a
case with horrific facts which lacked a viable legal theory.

EB.

The petitioner argues that “inconsistent state court
rulings regarding Mr. Stevens’ counsels’ [sic] pursuit of a
voluntary manslaughter defense support a finding of
ineffective assistance of counsel.” Petition at 53 (docket #
18). The petitioner argues that it was inconsistent for the
‘Indiana Supreme Court, in his Florida v. Nixon, ___ US.
___, 125 S.Ct. 551, 562 (2004) (quotation marks, brackets,
citations and footnotes omitted.) direct appeal, to have
affirmed the trial court’s refusal to give a voluntary

manslaughter instruction and then to have refused, in his
post-conviction relief petition, to find his trial counsel
ineffective for having pursued the voluntary manslaughter

6s

Defense Counsel’s “concession of Nixon’s guilt does not rank as
a failure to function in any meaningful sense as the Government’s
adversary. Although such a concession in a run-of-the-mine [sic]
trial might present a closer question, the gravity of the potential
sentence in a capital trial and the proceeding’s two-phase
structure vitally affect counsel’s strategic calculus. Attorneys
representing capital defendants face daunting chalienges in
developing trial strategies, not least because the defendant’s guilt
is often clear. Prosecutors are more likely to seek the death
penalty, and to refuse to accept a plea to a life sentence, when the
_evidence is overwhelming and the crime heinous. In such cases,
avoiding execution may be the best and only realistic result
possible.

66A

defense. Procedurally, this argument is unsuccessful
because neither this court nor the Indiana Supreme Court
on post-conviction review, were directly presented with the
question of whether the voluntary manslaughter
instruction should have been presented to the jury. On
post-conviction review, the Indiana Supreme Court stated,

The post-conviction court found that
counsel’s decision to pursue the voluntary
manslaughter strategy, while ultimately
unsuccessful, did not amount to deficient
performance. The court pointed out that any
appreciable evidence of sudden heat justifies an
instruction on voluntary manslaughter, and
that sudden heat is defined as provocation
arising from a variety of emotions. In the
defendant’s admissions of guilt to his brother,
the defendant said that he “clicked” or “went
off’ when Zachary threatened to tell his parents
about the defendant’s sexual conduct. In the
defendant’s confession to police, he stated that
he killed Zachary because he was afraid that
Zachary would report him. Concluding that the
defendant received effective assistance of
counsel as to their strategy to pursue voluntary
manslaughter instructions, the post-conviction
court found that the defendant’s tral attorneys
pursued the most viable defense available to them.

Stevens v. State, 770 N.E. 2d 739, 753 (Ind. 2002) (brackets,
quotation marks, and citations omitted). Based on this
passage, the petitioner appears to conclude that the post-
conviction court believed that the voluntary manslaughter
instruction should have been given to the jury. Perhaps it
did, and perhaps it would have granted the post-conviction
relief petition had that question been squarely presented to
it. Procedurally, that issue is forfeit because it was not

67A

directly raised to either the post-conviction court nor to
this one. Yet before amyone second guesses the post-
conviction strategy, it must be noted that substantively the
language of this passage from the Indiana Supreme Court
does not lead unequivocally to the conclusion that it
believed its prior ruling was in error.

The post-conviction court speaks of “any appreciable
evidence of sudden heat” and it gives two examples of
how trial counsel may have believed that they had such
evidence. It then concludes by saying, not that trial
counscl’s strategy was outstanding, but rather that it was
the best they had. As previously discussed, this case was so
fraught with problems, they did not have much with which
to work. Therefore, though the trial court, the Indiana
Supreme Court on direct appeal, and the prior casclaw all
held that the voluntary manslaughter defense was
inapplicable here, trial counsel’s selection of this
unsuccessful defense and direct appellate counsel’s
inability to convince the Indiana Supreme Court to
broaden the voluntary manslaughter defense did not render
them ineffective.

F.

The petitioner argues that “having introduced
evidence as to their client’s future dangerousness, defense
counsel failed to adequately address the issue of life
without parole.” Petition at 61 (docket # 18). The Indiana
Supreme Court addressed this claim in reviewing the denial of
his post-conviction relief petition. :

The defendant contends that his® tnal
counsel were deficient for failing to tender a
penalty phase instruction that would have
informed the jury of the “true effect” of life
without parole. He argues that such an
instruction was needed to offset the possibility

68A

that a juror might believe that if sentenced to
life without parole, the defendant could be
released early. The defendant argues that such
an explanation should have been provided
because there had been evidence on the issue of
future dangerousness and because his tnal
counsel allegedly provided misguided
speculation dunng jury selection when
responding to a potential juror’s question
concerning the meaning of life without parole.

The post-conviction court’s decision noted
that it is unnecessary to instruct juries on words
that are commonly understood. The court
found that “life without the possibility of
parole” consists of common words that may be
easily understood by persons of average
understanding. It also found that had any such
instruction been tendered it would have been
refused. The post-conviction court concluded
that the defendant had received effective
assistance of counsel as to this claim. We agree
and decline to find ineffective assistance of trial
counsel on this issue.

Stevens v. State, 770 N.E. 2d 739, 755-56 (Ind. 2002)
(citations, footnote and quotation marks omitted).

Citing Simmons v. South Carolina, 512 U.S. 154 (1994),
the petitioner argues that he ‘“‘was denied his right to have
the jury informed of the true effect of one of the sentencing
options.” Petition at 64, docket # 18. In Simmons, the trial
court refused to inform the jury that the defendant would
not be eligible for parole and the United States Supreme
Court held that juries must be so informed when that is a
sentencing option. It was not unreasonable for the Indiana
Supreme Court to have held that the trial court in this case

69A

complied with the requirements of Simmons when the jury
was told that “life without the possibility of parole” was a
sentencing option.

G.

The petitioner presents several arguments related to
the penalty and sentencing phase of his trial.

Counsel’s failure to investigate the abuse,
brutality, and humiliation of Mr. Stevens’
childhood undermined the penalty phase
mitigation presentation.

Petition at 64, docket # 18.

The untapped mitigation evidence that counsel
failed to present during the penalty phase
of trial prejudiced Mr. Stevens.

Petition at 68, docket # 18.

Counsel rendered ineffective assistance when,
during the Penalty Phase arguments the
Defense rejected any explanation for the
offense. |

Petition at 71, docket # 18.

The sentencing phase of the trial was a replay
of the ineffective and prejudicial penalty
- phase.

Petition at 72, docket # 18.

The Indiana Supreme Court addressed these claims in
reviewing the denial of his post-conviction relief petition.

The defendant contends that his tmrial
counsel were deficient during the penalty phase
and sentencing hearing by failing to present
sufficient evidence of mitigating circumstances.

TOA

The defense presented various witnesses. and
evidence showing various mitigating
circumstances including his parents’ divorce
and his living in the homes 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 attempts, and his poor academic
performance. The defendant’s post-conviction
counsel, however, assembled several witnesses to
testify regarding information and theories that were
not employed by defense trial counsel.

The defendant first argues that his trial lawyers
unreasonably limited their penalty phase and sentencing
presentations to events of his life that occurred before age
18 and that his counsel unreasonably relied upon Dr.
Lennon, rather than presenting other psychological experts
regarding the defendant’s mental or emotional distress at
the time of the killing. He argues that Dr. Lennon “was a
fatal witness for the defense,” noting that on cross-
examination by the State, Dr. Lennon agreed with the
State’s theory that Zachary’s murder appeared directly
related to the defendant’s fear of having to return to prison,
and the defendant was not susceptible to traditional
psychotherapy and was a serious danger to society. The
defendant further urges that his trial counsel failed to
present a reason for the defendant’s cme. He argues that
counsel should have presented expert evidence that, at the
time of the killing, the defendant was under a mental
disease or defect, with an impaired ability to appreciate the
wrongfulness of his conduct and conform it to the law; that
he was very likely influenced by the interactive use of
drugs; that his disorders were treatable with medication

TIA

and intensive, individual psychotherapy; and that he
would not constitute a pedophilia threat in prison.

The post-conviction court rejected these claims. The
court observed that expert witness opinions suggesting that
the defendant had an impaired ability to appreciate the
wrongfulness of his conduct 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. The court noted that even one
of the defendant’s own experts at post-conviction
acknowledged that the defendant could appreciate the
wrongfuiness of his conduct when he took steps to hide
Zachary’s body. The post-conviction court later concluded:

Defense counsel were not ineffective for
failing to investigate and prepare evidence of
organic and mental impairments, including
dissociative disorders, borderline personality
disorders, and the effects of long-term drug use.
Defense counsel’s investigation of Petitioner’s
mental health and prior use of drugs was
reasonable. Both of defendant’s trial counsel
testified that they were aware of Petitioner’s
prior drug abuse. Dr. Lennon was also aware
of Petitioner's pnor drug abuse. However,
Petitioner denied having recently used drugs:
he “used to do drugs, used to dnnk,” but that
he stopped drinking when he got arrested for
child molesting, and “had stopped smoking
marijuana awhile before that, long before that,
‘pretty much cause my sister got killed by a guy
that was high and ever since that I had, I had
gone from doing it heavy to real light and then
stopped.” Moreover addiction counselor
Needham evaluated Petitioner in January 1993
and found that Petitioner did not have a drug

T2A

or alcohol problem. Thus, defense counsel’s
investigation was reasonable.

Moreover, had defense counsel adopted
the strategy of emphasizing Petitioner’s prior
drug use, this would have been inconsistent
with their mitigation strategy of portraying
Petitioner as the passive victim of abuse. As
Dr. Lennon testified, so much of Petitioner’s
behavior could be explained by the abuse, the
neglect that he’s had on top of his genetic
predisposition, and then you look at all the
drugs that he’s been surrounded with his birth
mother, and then the fact that she probably--
even though she denies it, the evidence will
suggest that she probably did do drugs or
alcohol during pregnancy. Had defense counsel
elicited evidence of Petitioner’s prior use of
illicit drugs, he would no longer appear to be a
passive victim molded by outside forces, but
would appear as someone who had actively
decided to break the law. As the Seventh
Circuit explained in Stewart v. Gramley, [w]|hat
is brought out during the penalty phase that
will help a defendant is what goes to show that
he is not as “bad” a person as one might have
thought from the evidence in the guilt phase of
the proceeding. What is brought out that will
hurt him is what goes to show that he is,
indeed, as bad a person, or worse, than one
migh

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0587%3A2. Public record. Not legal advice.