*1 of the of- intent element describing the STEVENS, Christopher M. based on

fense, a defense encompasses Petitioner-Appellant, is more Prude’s instruction Ms. mistake. directly links the and more clearly worded jury. for the Neverthe- concepts

relevant McBRIDE, Respondent- Daniel accurately less, faith good statement Appellee. and, together with the law taken stated the No. 05-1442. intent ele- specific as to the instructions and the instructions ment of the offense of Appeals, United States Court meaning knowledge, ade- regarding Seventh Circuit. jury that it could not apprised the quately Argued Feb. 2006. her that she was mistaken about conclude simultaneously hold to vote and Decided June 2007. eligibility casting a ballot. criminally liable for her Rehearing Amended on Denieal of As it in the instruction because Any weakness Aug. En Banc Rehearing specific language Ms. did not contain 2007. mistake, than rather Prude often used— impermissibly faith —did not dilute good could not be found point that she

her basic legali- about the

guilty if she was mistaken conduct; simply stated the

ty of her Prude’s coun- in broader terms. Ms.

point free, within the context of the

sel remained instruction, her testi- emphasize

court’s

mony that she was mistaken about

legality of her actions.6 Prude must conclude that Ms. has

We jury

not demonstrated adequately theory on the of her

instructed that, the instructions as

defense or of a fair trial.

given, deprived she was

Conclusion reasons, affirm the foregoing

For the we

judgment of the district court.

AFFIRMED good faith instruction juxtaposed good and also referenced faith itself faith instruction against specific intent to R.50 at element of the to the intent and its connection defraud. 348. closing argument. R.50 at charge See in her 333. Indeed, emphasize attorney did Ms. Prude’s was mistaken Ms. Prude’s that she *3 Kathy (argued), Lea Stinton-Glen Zionsville, IN, Petitioner-Appellant. for (argued), James B. Martin Office of the General, IN, Attorney Indianapolis, *4 Respondent-Appellee. RIPPLE, MANION,

Before and WOOD, Judges. Circuit WOOD, Judge. Circuit Stevens, an Christopher emotionally dis- young turbed man who had been abused child, raped and as a was sentenced to in death Indiana state court for the moles- tation brutal 10-year-old and murder of Zachary trial, At Snider. Stevens’s only presented by evidence the defense concerning his mental state at the time of killing psycholo- was the of a gist who believes that mental illness is a myth. rejected After the Indiana courts direct appeal post-conviction Stevens’s petition, brought review he this habeas corpus petition § under 28 U.S.C. claiming principally attorneys’ that his in- vestigation presentation expert psy- chological testimony at his trial amounted to ineffective assistance of counsel and de- prived him only opportunity of his to avoid conviction and a death sentence. We con- clude that attorneys the defense provided penalty ineffective assistance at the phase of the trial grant petition insofar as it relates to his sentence. I A The underlying facts of this case are recounted in detail in the Indiana in front of his con- came across Stevens house. affirming Stevens’s decision Court’s them, having See Stevens Lying Stevens denied seen and sentence. viction (Ind.1997). Indiana, day. July police N.E.2d Snider all On presumption to a con- picked up questioning, are entitled Stevens for Those facts 2254(e)(1), correctness, fronting see 28 U.S.C. him with the fact that a witness any uncontested they bicycle parked are in event in front had seen Snider’s only what is repeat here point. day We of the murder. of his home claims. current police relevant to Stevens’s had Stevens admitted to that Snider briefly, having him but he denied visited Stevens, was 20 February who anything disappearance. to do with his time, convicted in at the years old later, days confessed .to his Stevens Two molestation. court of child Indiana state had killed brother Mark Stevens of his sen- serving several months After Snider, oc- explaining detail what had tence, probation released on he was directing his brother to the curred and his re- night On the before May 1993. body was hidden. Mark bridge where the with a lease, a conversation later ar- police, went to the who Eastin, inmate, Eas- Tracy which fellow Christopher Stevens. rested be back that Stevens would predicted tin *5 again within two jail in the same crime for “No, I replied, Stevens B

months. allegedly him.” time I’ll kill won’t. Next charged After Stevens was with Snider’s release, to live went Upon his Stevens announced its intention murder State Cloverdale, He in Indiana. his father with penalty. death The Putnam to seek the Snider, 10-year-old a who soon befriended appointed two law- County Superior Court in same subdivision as Stevens’s lived Jeffrey Baldwin as lead yers for Stevens: 15, 1993, to July Snider went father. On as sec- counsel and Robert Clutter defense afternoon, in late home Stevens’s thereafter, the case was Soon ond counsel. him. to molest proceeded Stevens where Tippecanoe County Su- transferred to the Afterwards, to tell his Snider threatened Baldwin retained Carol perior Court. assault; point, at this about the parents specialist. Knoy mitigation a defense scared and claims that he became Stevens Stevens, quick- it From conversations by to kill Snider attempted He “clicked.” team apparent to the defense ly became and then smothering pillow him with a would be health examination that a mental those him with a cord. After strangling component prepara- important an unsuccessful, proved Stevens methods lawyers that he had told his tion. Stevens kill suffo- eventually managed to Snider emotionally mentally, and physically, been plastic bag. a Stevens cating him with child, raped by a and had been as a abused body and Snider’s placed Snider’s then Medi- years he was 10 old. stranger when car, out of his drove bicycle into the back facility psychiatric a cal records from body countryside, and threw into the briefly patient re- where Stevens Later, he re- bridge. over a and bike Doc- attempted suicide. that he had ported plastic bag the site to retrieve turned to major him with diagnosed had tors there found, feared, assist the might if that he schizophrenia. possible depression him as Snider’s killer. identifying in police Knoy to a letter also wrote Stevens he killed Snider stated when dur- which he not return home Snider did When Zachary’s place, and he “put himself parents evening July ing the wished Zachary what he They doing neighborhood. began to search raped is, time, him would have man who done Mr. Stevens a serious to him.” danger society every there is reason to believe he would continue to recommendation, Knoy’s Upon children, especially boys, molest if given as a mental health consul- counsel retained another opportunity. present Given his psychologist tant clinical Dr. Lawrence state, mental one could not rule out an- Lennon, at the time was director of a who other young violent assault on a victim if psychiatric child and adolescent center Mr. again necessary. felt it was hospital. Upon Indianapolis meeting an time, for the first with Dr. Lennon defense Upon receipt of report, Stevens’s law- him'to evaluate counsel instructed yers immediately contacted Dr. Lennon to report findings. but not to write on his question why disobeyed he had in- their direction, Despite explicit Lennon structions. attorney Robert report wrote a and sent it to Stevens’s Lennon, Clutter testified that Dr. echoing report attorneys. The included numerous portrayal Marlene Dietrich’s of the charac- extremely statements that were detrimen- ter Christine Helm Vole the 1957 film tal report to Stevens’s case. Because this Prosecution, version of Witness claims, is so central to Stevens’s repro- we responded: worry “Don’t it. I’m about duce excerpts of here: sandbagging the trying State.... I’m Mr. Stevens revealed no evidence of make think going them that I’m to be a any hallucinations or delusions.... good them, witness for going but I’m There is no reason to believe that he has stand, take —when I take going I’m reality ever been out of touch with ex- be able to turn this all around on them.” cept perhaps when he has been under time, Around the same *6 Stevens’s law- drugs....

the influence of yers also learned that Dr. Lennon sub- approximate- He said he has molested scribed to an unusual psychological theory ly (mostly boys) 25-30 children and has known “myth as the of mental illness.” (later shot boy and killed one out west lawyers Stevens’s believed that Dr. Len- story).... he recanted this theory non’s belief this placed him in the rarely accepts responsibility He one percent minority psychologists who his actions and tries to blame others for believe that mental diseases do not exist. all problems he has encountered.... They concluded that he a “quack.” was Zachary appears The murder of to be lawyers Stevens’s also learned Dr. about directly related to his fear of having to Lennon’s favored therapeutic technique, return prison Zachary to after revealed “trust bonding and therapy,” which the he would report Mr. Stevens’ sexual as- (and lawyers himself) later Dr. Lennon sault. Mr. did not Stevens seem to re- described as “putting 18-year-olds on his veal killing sincere sorrow for Zachary lap and sticking a bottle in their mouth.” and is much more preoccupied with sav- Despite their serious and well-founded ing his own life. doubts about Dr. Lennon’s fitness as a Sexually, Mr. Stevens seems well expert, defense Stevens’s counsel did not versed in pedophilia readily accepts seek an addition, alternative. prior to this diagnosis.... lawyers copy sent a of Dr. Len- Mr. Stevens is in need of intensive report non’s to prosecution. counseling although to manipu- due lative behavior he is not now good a Neither Dr. Lennon any nor other men- candidate for psychotherapy.... tal health professional during testified Lennon, “going that Stevens is Instead, means Dr. Stevens’s trial. at the phase guilt people.” Dr. by using ... Lennon jury that to live convince tried to counsel “emotionally that Stevens is man- stated voluntary also guilty was twelve-year-old” just after describ- a homicide like than intentional slaughter rather pathetic kid.” Dr. very him as “a ing heat of sudden in a state he acted because said to connect Stevens’s nothing Lennon to disclose threat by Snider’s provoked at to his mental state childhood This strate- difficult molestation him. Stevens’s time of the murder. unsuccessful, trial court as the gy jury instruction proposed give to refused cross-examination prosecution’s The jury re- The manslaughter. voluntary on Dr. closely tracked Lennon’s Lennon Dr. guilty verdict. turned Prosecu- evaluation of Stevens. written to confirm his Dr. Lennon asked tors trial, defense penalty phase At the of Snider murder statement testimony from Stevens presented counsel having fear of directly related to Stevens’s mem- himself, numerous as from as well Dr. Lennon volun- prison. return final family. As their of Stevens’s bers qualities had antisocial that Stevens teered called Dr. Len- witness, lawyers walking After sociopathic traits. began his Dr. Lennon non. report, prosecutor through the Lennon form of describing length preferred Dr. Lennon whether Stevens had asked children, stating troubled therapy for by killing sexually Snider been aroused forcibly young hold a typically would he masturbated Sni- and whether had fun time for “a lap in his person down responded that body. Dr. der’s Lennon get away” until child tries to where that he had done had admitted so. then, talk “we’ll child is exhausted disclosed devas- Dr. Lennon never child, baby inside the little about counsel. tating fact nourished, never loved boy that was never actually give a in some cases we’ll ... and unanimously jury recommended The give a bottle mother will bottle. attorneys sentence. After Stevens’s death ” Dr. 16-year-old.... 17-year-old testify a second time Dr. -Lennon called tech- diagnostic described his Lennon also during which sentencing hearing, at the trou- looking photographs *7 nique of present- Stevens Dr. Lennon described ages “[w]e where younger bled children society,” the trial court ing great “a risk you it makes ... child that a beautiful see of jury’s recommendation accepted the ... and then why, happened what wonder stated for doing, the court In so death. today, is person we look at where mitigation it the record that found going on.” figure out try to what’s we by was “far Stevens presented evidence aggravation factors by outweighed” subject of Ste- turning to the Eventually summary by the State. provided twenty vens, pages than more after court stated: develop- of child testimony on his theories murder was calcu- finds this Court bonding” therapy, [T]he “trust and ment and his by self-preser- It was motivated lated. the “terrible testified about Dr. Lennon delibera- vation, coolly with performed abuse Stevens and some childhood” the defendant’s tion, coupled Dr. Lennon did Notably, experienced. defendant The gratification. sexual of Stevens’s any evaluation not provide for of his arrest possibility placed health, say except mental current the life of ten molesting child above ... [a reactive] traits “shows Stevens if in placed boy. He stated which, year old disorder,” according to attachment he would kill in position phase order to this the trial and at penalty phase, returning jail. exactly That clarity avoid is for we argument consider each clearly He he did. acted a cold- turn. briefly what We then address two addi- manner. blooded arguments tional that Stevens raises petition. Supreme Indiana Court affirmed conviction and Stevens’s sentence on direct A. Guilt Phase counsel, After

appeal. obtaining new Ste- petition post-convic- vens filed state Throughout his state and federal post- holding evidentiary tion relief. After an conviction proceedings, has hearing, the trial peti- court denied this lawyers claimed that his were ineffective tion; Supreme the Indiana Court later af- for not adequately investigating his mental this Finally, firmed denial. Stevens filed and, result, state as a failing pursue an petition for corpus habeas in district insanity during guilt phase court. The district court denied Stevens’s the trial and relying instead on a doomed claims, leading appeal. to this voluntary manslaughter theory. In its de- denying relief,' cision post-conviction II rejected argu- review of petition gov- Our is ment, concluding that defense counsels’ de- by erned the Antiterrorism and Effective cision pursue not to such a defense was a Penalty (AEDPA), Death Act of 1996 28 strategic one based on adequate investiga- § which permits U.S.C. a federal case, tion. In any held, the court court to issue a writ of corpus only habeas prejudiced by was not lawyers’ per- if the state court reached a decision on the formance because Stevens’s during actions claim, merits of decision was killing after constituted such to, “contrary either or involved an unrea- strong evidence that Stevens was aware of of, application sonable clearly established the wrongfulness of his conduct that no law, Federal as determined the Su- jury reasonable could conclude otherwise. preme States,” Court of United Our review Stevens’s counsels’ 2254(d)(1), § or “was based on an unrea- “highly deferential”; is Ste sonable determination of light the facts in vens required to “overcome pre presented evidence in the State sumption that, circumstances, under the 2254(d)(2). court proceeding,” Since challenged might action be considered Stevens’s principal argument involves a sound trial strategy.” Strickland, 466 counsel, claim of ineffective assistance U.S. at 104 S.Ct. (quotation is governed by the familiar standard of omitted). marks The choice not to investi Strickland v. Washington, 466 U.S. *8 gate particular a defense does not consti 2052, 104 S.Ct. (1984), 80 L.Ed.2d 674 tute deficient performance “if a lawyer has which a defendant must show both made a reasonable decision that makes that lawyers’ performance his was defi- particular investigations unnecessary.” cient and that this deficient (7th Bertrand, 428, Adams v. 453 F.3d 436 prejudiced his defense. Cir.2006) omitted). (quotation marks Although there is significant overlap be- tween Stevens’s that he claims received In an attempt to overcome the presump- ineffective assistance relating of counsel to tion of sound strategy, Stevens relies the investigation and presentation of ex- on lawyers’ his frank admissions the pert psychological guilt evidence post-conviction state hearing they that

891 asked him counsel never (probably because of their beginning aware from were In re Name right questions). Brand compre- a of Stevens that representation Litigation, Antitrust Prescription Drugs be would health evaluation mental hensive Cir.1999). (7th There, F.3d 786 determining trial for prerequisite a crucial Evi rule Federal Rule of relevant Dr. failed after Lennon strategy, yet only an requires not that which dence they an evaluation such them with provide expert as an “qualified expert witness be mental an alternative to consult neglected skill, training, experience, by knowledge, emphasizes also expert. Stevens health education,” expert’s that but also or any rationale not offer lawyers did that his prin testimony product of reliable be “the not to seek an additional for their decision ciples and methods.” contrary, they explicitly expert. To the for their any strategic Indiana, naturally, obligation basis is under no disclaimed rules, includ procedural follow federal actions. At the time ing the rules of evidence. State, contrast, echoing the In however, trial, Indiana had a Court, that de- contends very present like the Fed. rule much investigation of Stevens’s counsels’ fense (effec Ind. R. Evid. or like R.Evid. it was adequate because mental state was 1994): subject a mat “[G]iven Jan. tive Lennon, rely Dr. them to reasonable for testimony, the expert for appropriate ter well-quali- a describes as whom State by a foundation preceded be opinion must profes- mental health experienced fied and cre establishing the witness’s evidence it argues that further The State sional. reliability and the expert as an dentials for coun- strategic choice reasonable utilized the wit any scientific methods voluntary manslaughter sel choose Nobles opinion.” See to reach the ness defense, a mental illness over Prince, TRW, Inc. v. Casting Div. ville claims, path latter since, choosing the (Ind.1982); see also 722, 727 N.E.2d the admis- the door to opened “would Roberts, 896, 899 N.E.2d Martin not other- incriminating evidence sion expert (holding potential that a (Ind.1984) namely, guilt phase,” presented at wise judge his to the trial “had to show witness regarding Stevens’s Eastin’s field to experience knowledge and jail-house statement. here problem The expert”). as an qualify expert anof general qualifications Dr. Len that methods related first the witness guarantee that do witness view of idiosyncratic used and non any assistance provide proficient will disorders, impor and even more mental even the example, For instance. given Dr. Lennon’s views tantly, to fact might fail of witnesses brilliant most Stevens’s law prosecution. favored or question at issue important part address Dr. Lennon was were aware yers so propositions profes reiterate might simply minority of mental health tiny aof views, subjects (It odd, they proper given are well-known sionals. in the fed at a Experience psychiatric worked judicial Lennon had for notice. an of the American point. website hospital. As the courts illustrates eral illustrates, psychia up case, Psychiatry court Association example, antitrust study lives to the the ex devote their court’s exclusion trists held district *9 http:// disorders. See Prize-winning of mental testimony of a Nobel treatment pert the They, that, www.psych.org/about_apa/. despite ground economist on frequently who work testimony psychologists impeccable qualifications, them, undoubtedly take issue with would in issue” a matter not “mainly concerned they tackling Strickland, the idea that are “myth.”) a at 466 U.S. S.Ct. light In of the stakes in the case and the We therefore question turn to the whether confront, evidence the defense had to it prejudiced Stevens by was his counsels’ would not have been reasonable for de- performance at guilt phase of his trial. rely on Dr. fense counsel to Lennon’s eval- Indiana, In person responsi- is not “[a] only uation of based on his creden- for having engaged ble in prohibited con- tials. if, duct as a result of mental disease or defect, he appreciate was unable to Putting question one side now, wrongfulness of the by we are troubled conduct at the also time offense.” State’s effort to Ind.Code characterize 35-41-3-6. defense lawyers’ This meet; reliance on a is a difficult voluntary man standard to slaughter defense defendant strategic proof reasonable carries the burden of Supreme choice. As the Indiana the Indiana Court rec Court has made ognized roundly clear that rejecting ar will reverse a Stevens’s trial court’s gument denial appeal insanity on direct of an claim “only the trial when the given court should have evidence is only without conflict and voluntary leads instruction, manslaughter to the “[njothing conclusion that the defendant was insane these facts” indicates that Stevens when acted in the crime was committed.” Indiana, by Thompson “sudden heat” law, as defined 804 N.E.2d (Ind.2004). since “words alone cannot constitute suffi cient provocation give rise ato finding To show that an insanity defense warranting sudden heat an instruction possible, heavily Stevens relies on several Stevens, on voluntary manslaughter.” 691 mental experts health who testified at the (quoting N.E.2d 426-27 Matheney v. post-conviction hearing that Stevens was Indiana, (Ind. 583 N.E.2d severely mentally ill and that his mental 1992)). Nor is the assertion State’s that a played illness a determining role in the illness opened mental defense would have murder. conducting After comprehen- door to Eastin’s particularly psychological sive Stevens, evaluation of telling. correctly As points out, Coons, Dr. Philip Professor of Psychology the same door opened would have been if at the Indiana Medicine, School diag- managed counsel had to obtain a voluntary nosed him as having “very severe disso- instruction, manslaughter since both de disorder,” ciative opining that “at the time fenses involve the intent. element of murder, of the only he was not dissociat- light lawyers’ of Stevens’s ing, admissions but identity between he and [Sni- overall got weakness der] mixed up-[H]e’s basically kill- they presented trial, we are ing inclined to Zach because it’s what he would have believe that their was ineffec- wanted molestation at age tive. Before attempting to resolve that been killed his abuser.” While definitively, however, issue we look at the Dr. Coons acknowledged that Stevens “ob- prejudice branch of the Strickland viously test. right knew wrong” from after the doWe so because the Supreme Court killing, has “because engaged in all kinds of explicitly noted that both per- deficient behaviors to up done,” what cover he had formance prejudice must be shown in emphasized Coons ability prove order to constitutionally appreciate ineffective wrongfulness of his conduct assistance of counsel. If either element is at the time of the murder “impaired.” missing, petitioner cannot prevail. See Dr. Kaplan, Robert a clinical psychologist,

893 theory, possi- this a dissociation based on that clear” Ste- “very it was that agreed Su- disorder,” Indiana bility not render the does dissociative from “a suffers vens contrary unrea- conclusion history physical Court’s family preme a that explaining Young, 302 diag- Hardaway v. such a See sonable. corroborated abuse and sexual Cir.2002) (AEDPA’s (7th behavior 762 F.3d nosis, a review of Stevens’s as did Dr. “means some- standard confession. unreasonableness videotaped during his as “a the boundaries childhood well outside thing lying like Kaplan described opinion”). dis- with a permissible someone differences developing recipe for Dr. Kaplan, Dr. like the Indiana therefore conclude that disorder.” We sociative opinion unreasonably apply that it was his not Coons, did Supreme testified that ap- that’s able to determining that Stevens part of in [Stevens] Strickland “[t]he of his conduct wrongfulness counsels’ failure the his preciate prejudiced was not dissociating,” he was an disengaged investigate pursue when adequately was to was clear that Stevens that it was adding during guilt phase insanity defense distress extreme emotional his trial. at the dissociating time actively “was on Stevens’s final comment One occurring.” murder was brief, in Ste reply claim: guilt phase enough not it is prejudice prove To insanity that, to an in addition argues vens that a mental to show simply for Stevens pursued lawyers plea, his trial should was available. of defense line illness ill mentally guilty but a defense of “a him to demonstrate requires Strickland (GBMI). § 35-36-2-5. Ind.Code See that, coun but for probability reasonable in cases is available a defense Such errors, result unprofessional sel’s ill mentally but “was which defendant different.” have been would proceeding wrong at the right from distinguish able 2052. “A rea S.Ct. 104 U.S. Indiana, Weeks v. offense.” time of the probability suffi probability sonable (Ind.1998). Although a 697 N.E.2d out confidence undermine cient guarantee not finding of GBMI “does jury course, this And, we conduct Id. come.” will not penalty that the death a defendant un of AEDPA’s through lens analysis matter, de practical ... as a imposed be standard, a standard reasonableness mentally ill guilty be but fendants found conclusion state court’s “allows normally murders of death-penalty-eligible equally plausi one several if it is stand imprison years life a term of or receive Washington, v. outcomes.” Hall ble Indiana, 741 N.E.2d ment.” Prowell Cir.1997). (7th 742, 749 F.3d (internal omit (Ind.2001) citation the evidence in Considering ted). reason, Indiana Su For this kill efforts to extended of Stevens’s record a defendant has held that preme Court murder, up the later cover Snider of counsel ineffective assistance claiming conclusion Court’s Indiana but by showing that may prove prejudice conclude jury could no “a deficient counsel’s of his wrongfulness appreciate not did of ... a result produced would have murder of the at the time conduct ill.” Id. at 717. mentally guilty but that there Although we think implausible. aside, inappro we find Merits jury presented with possibility that ais because argument to consider priate Dr. testimony of Coons expert argued to never that Stevens might have concluded Kaplan way which was one killing courts that the time legally insane at *11 894 prove

intended to his ineffective insanity assistance defense (arguing proposed 2254(b)(l)(A)’s of claim. counsel Section conclusions of that Dr. law Coons’s testi- provision “requires exhaustion the peti mony, for example, supported finding tioner to assert his federal claim through that Stevens was unable to “appreciate the complete review, one round of state-court wrongfulness of his conduct at the time appeal either on direct of his conviction or killing”). argument Neither sufficient- post-conviction proceedings.” Lewis v. ly alerted the state court to the fact that (7th Sternes, Cir.2004). 1019, 1025 390 F.3d Stevens intended prove to ineffectiveness Adequate presentation a claim requires through present counsel’s failure to a petitioner “present operative both the claim, GBMI and therefore may Stevens facts legal and the principles control not do so here. judiciary.” each claim to the state Ritten Battles, (7th

house v. F.3d 695 Sentencing B. Phase Cir.2001). Here, although pre In seeking relief from his capital sen- sented his ineffectiveness claim to the tence, Stevens repeats many of the same courts, state presented never as a sup arguments regarding inadequacy porting argument lawyers’ failure to defense handling counsels’ expert psy- (It raise the GBMI defense trial. may chological testimony that he made for the be worth noting that although here we guilt phase. For sentencing purposes, he assess performance counsel’s as a whole stresses counsels’ failure develop miti- for purposes granting ap- certificates of gation evidence related to his mental state pealability § 2253(c)(2), U.S.C. and their ill-fated decision to call Len- and thus a identifying certificate ineffec once, twice, non not but as a defense wit- tive brings assistance of counsel all up of ness. The Indiana reject- actions, Peoples counsel’s see v. United ed aspect the first of this claim for the States, (7th Cir.2005) 403 F.3d same rejected reason it guilt Stevens’s (“[I]t is the overall deficient phase ineffectiveness claim: it concluded [by a attorney], defendant’s rather than a that defense had adequately counsel inves- specific failing, ground that constitutes the tigated Stevens’s mental health through relief.”), the purposes behind the rules Dr. Lennon and then made a strategic procedural requires party default present decision not to mitigation evidence present to the court both the state facts related to Stevens’s mental state. The and the Thus, law on which he relies. not, however, court did have anything to failure to alert the court to a state com say about lawyers’ Stevens’s decision to plaint about aspect one of counsel’s assis call Dr. Lennon aas defense witness for tance will default.) procedural lead to a sentencing purposes, other than to ac- Instead, throughout post-conviction knowledge argument that Dr. proceedings, couched his mental Lennon “was a fatal [sic ] witness for the illness theory defense in general either defense.” terms (contending petition in his post- conviction relief that his counsels’ “unrea death penalty statute requires sonable] investigate, develop, fail[ure] prove beyond State to a rea prepare, present evidence, available sonable doubt the existence of at least one including but not limited to evidence of enumerated aggravating circumstance. diagnosable mental 35-50-2-9(b)(l). and emotional disabili Ind.Code In Stevens’s ties, [ ] would case, to a given rise the State aggrava focused three to the charge”) or specific in terms ting an circumstances: Stevens commit- testing process,” reliable adversarial crime committing the murder while ted *12 at was investigate,” which “duty on was the to molestation, that child of 688, 691, 104 murder, at and Id. in Strickland. of the issue time at the probation 12. age of the 2052. under victim was S.Ct. the that provide to a allows defendant

The statute inef counsel was assessing whether cir- aggravating the both about evidence the requires fective, the Strickland and prosecution by the alleged cumstances of ineffective making a claim “defendant circumstances. mitigating enumerated acts or .omis identify the [to] assistance circum- mitigating Here, two such at least to alleged are that of counsel sions first, that “[t]he implicated: were stances profes result of reasonable the have been of ex- influence was under the defendant Strickland, at 466 U.S. judgment.” sional disturbance or emotional mental treme a Following such 2052. 104 S.Ct. committed,” and murder the was when then determine court must showing, “[t]h'e second, capacity that defendant’s “[t]he circumstances, whether, of all light in defen- criminality of the appreciate were out acts or omissions the identified that conduct to conform conduct or dant’s com range professionally the wide side law was substantial- requirements to the Although Id. counsel’s petent assistance.” or disease mental a result of as ly impaired considerable given are strategic choices (6). 35-50-2-9(c)(2) & § Ind.Code defect.” after made deference, “strategic choices circumstance only mitigating other The are rea investigation complete than less to Stevens applied that could that reason to the precisely extent sonable “[a]ny other catch-all was the Indiana law support judgments professional able for consider- appropriate circumstances 690-91, Id. at investigation.” limitations 35-50-2-9(c)(8). ation.” Ind.Code 2052. S.Ct. 104 clear that made has Supreme Court The referred particularly Strickland counsel, ineffective claims of evaluating in as reflected practice norms of “[prevailing assistance purpose [of [the] must take “we standards” Bar Association in American fair trial —as ensure counsel] —to reason- what is determining “guides 686, 104 Strickland, at U.S. 466 guide.” a court’s that able,” emphasized but counsel’s held that 2052. Strickland S.Ct. effec- of counsel’s determination ultimate sentencing capital during the performance specific in the grounded be must tiveness subject to criminal case phase Id. case. circumstances as counsel’s standards same state Guidelines The ABA 2052. S.Ct. 686-87, 104 Id. at trial itself. during the evidence mitigating into investigations that words, petitioner In other 2052. S.Ct. all to discover comprise efforts “should inef counsel was demonstrate must - evidence mitigating reasonably available preju petitioner fective evi- any aggravating to rebut evidence Id. performance. by counsel’s diced pros- by the may be introduced dence “basic most 2052. 104 S.Ct. Counsel’s Appoint- for the Guidelines ABA ecutor.” “duty to advocate duties” include Counsel Performance ment cause,” “duty bring defendant’s 11.4.1(C), p. Penalty Cases ren Death as will knowledge such skill bear (1989).1 sentencing phase] capital [or der the trial (2003). 156 L.Ed.2d Later, 123 S.Ct. this stan- cited Supreme Court however, years case, decided six Wiggins deci- approvingly its specifically and dard Court considered 510, 524, Smith, the Indiana after 539 U.S. Wiggins v. sion

Although Stevens’s trial planned counsel testimony. The lawyers confessed presented testimony from a posLconviction number of at the wit hearing they nesses, members, principally family utterly were in the dark during about what Dr. trial, say Lennon would penalty phase when very he took little the stand. They frankly admitted that any during addressed statutory preparations, Dr. Lennon would only re- mitigating factor other than perhaps the peat, “I can handle it. Don’t worry about catch-all “other circumstances” factor. *13 it.” This is a complete failure of the duty None of it addressed whether Stevens was investigate to professional with no justifi- suffering from an extreme emotional dis cation. Where expert an opinion witness’s turbance or to appreciate was unable is “crucial to theory[,] the defense defense wrongfulness of his conduct at the time of counsel’s failure to questioned have [the murder, both theories that Dr. Coons’s expert] ... prior to trial is inexcusable.” and Dr. Kaplan’s diagnoses later of Ste Combs v. Coyle, 269, (6th 205 F.3d 288 vens would suggest have been supported, Cir.2000). only pursued counsel them. See Ind. 50—2—9(c)(2) (6). § Furthermore, Code given & that fact defense 35— contends that counsel did this failure know what investigate to Dr. Lennon had written in present report, and his mitigation we imagine evidence on cannot they what hoped gain mental by calling state constituted perform deficient Lennon to the stand ance. at sentencing. The responds State that This decision was the catalyst for their counsels’ choice action in not to look for other men turning over Dr. Lennon’s extremely tal detri- health professionals and instead to rely mental report written prosecutors prior on Dr. Lennon’s awas reason to trial. The Court indi- strategic able part decision on the of coun that cated this fact did not constitute an sel straightforward and “a approach to indication of deficient since mitigation, as it explained reasons for Ste the trial court had required “any reports vens’s that portrayed conduct experts” from to be turned over to the himself as a victim.” prior State to trial. Indiana, Stevens v. strategic The reasons might, that 770 (Ind.2002). N.E.2d 748 n. 4 Our stretch, at a justified at decision review reveals, however, record guilt apart fall phase, when we consid the trial court’s pertained order only to er that at sentencing phase Stevens reports from expert trial witnesses re- had nothing left to lose. lawyers’ by tained the defense. lawyers Stevens’s decision forego presenting this kind of could have designated Dr. Lennon as a mitigation evidence made without the trial consultant rather than expert an wit- investigation kind of into Stevens’s mental ness, thereby shielding his written report health for, that Strickland calls Ste prosecution. from the after See Indiana Trial lawyers vens’s had concluded that Dr. 26(B)(4)(b) (“A Rule party may discover Lennon a “quack.” Indeed, it is un facts known or opinions by held expert an contested lawyers Stevens’s knew who has been retained or specially em- nothing about content of Dr. Lennon’s ployed by party another in anticipation of ineffective (7th assistance of Cir.2006). counsel Nevertheless, 848 Wig- claims, purposes therefore for of this case gins light sheds some on what the Court itself cannot serve as a source of "clearly estab- understood scope as the of its Strickland hold- law, lished Federal as determined the Su- ing.

preme Kingston, Court.” Eckstein 460 F.3d

897 important an is But there N.E.2d at who trial and for preparation or litigation mitigat- statutory between at difference a witness called as be expected is not (6) 35-50-2-9(c)(2) for & excep ing factors showing upon ... trial, only the re- sentencing purposes ”); capital Beau .... circumstances tional cf. insanity defense an proving Indiana, quirements N.E.2d champ v. Furthermore, the bur- Rule phase. (applying guilt (Ind.Ct.App.2003) heavy party “a is stating the defendant 26(B)(4)(b) den on See guilt phase. when obtain during the protected sentencing as certainly be should (7th in order Davis, requires F.3d expert advice Baird v. ing case present of one’s Cir.2004) (“Substantial impairment evaluate properly bewill consultation every require- to the fear conduct to conform capacity without discoverable”). of mental disease a result law as ments of from the different qualitatively or defect first application straightforward A influence’ being ‘under *14 of mere status compels conclu- requirement Strickland distur- or emotional mental of extreme of omissions” “acts these sion 617, Walls, 297 F.3d bance.”); Pierre St. sen- capital during the counsel Stevens’s Cir.2002) (“While (7th a defendant’s 632 serious “so errors constitute phase tencing might the crime time at the of mental the state functioning as not was that counsel to the of a defense the level the rise to by not defendant the guaranteed ‘counsel’ mitigation in a crime, relevant Strickland, it can be U.S. 466 Amendment.” Sixth matter, mental conclude, legal hearing.”). As We 2052. 104 S.Ct. at imposition the to defense mitigation of illness the record, on this even may be available sentencing sentence capital of a death his at lawyers Stevens’s murder to the insanity defense the constitutional if an fell below proceedings not. charge is minimum. in prejudice to turn the thusWe proba- case, a reasonable find we In this held The Strickland

quiry. to is, undermine one sufficient bility—that defendant “[t]he prejudice, to show order the sen- of the outcome our confidence prob is a reasonable that there show must have would the result phase tencing —that unprofession that, for but counsel’s ability main- had heard jury the if been different proceeding errors, result the al testimony of expert psychological stream Strickland, been different.” have would Dr. Coons by Dr. presented the sort rea 2052. “A S.Ct. at 104 U.S. hearing. See post-conviction the at Kaplan suffi probability ais probability sonable Strickland, S.Ct. 466 U.S. in the out confidence to undermine cient mental Stevens’s evidence Competent Id. come.” gener- strengthened have illness would by de- presented evidence mitigation al phase guilt it did for As difficult concerning counsel fense reasoned Supreme Court trial, the Indiana jury on the focusing by background by his disadvantaged not was on Ste- abuse years of results concrete evi mitigation develop to failure counsels’ addition, was, lit- There psyche. vens’s be state psychological his regarding dence such evi- presenting risk downside tle have been “would evidence such cause the most jury; evidence to dence evi the extensive by contradicted strongly jury. already before was sort damning attempts multiple defendant’s dence pe- predatory of his evidence Cumulative take carefully to then- Zachary and to kill on the actions specific and his Stevens, dophilia crime.” cover-up the to steps day likely fateful to make any evidence, ical Stevens raises two other general difference. And unlike mitigation complaints about lawyers’ assistance on concerning evidence Stevens’s background, which we briefly: comment that they were evidence severely about Stevens’s dissoci- ineffective for failing object to the re- impaired ability ated condition and to ap- quirement that he wear a stun belt preciate the wrongfulness of his conduct at throughout the trial and that the district killing time of the would provided court improperly denied him discovery to lawyers a basis rebutting the ag- pursue argument an that prosecutors pre- gravating highlighted by factors the State. sented perjured testimony to the jury. record, On this defense deci- counsels’ to call

sion testify Dr. Lennon to With before regard belt, to the stun Ste jury penalty phase vens men- claims that a criminal defendant has a —not tion their decision to call him a clearly second established constitutional right testify time to before the trial judge at be free restraints at trial and that he sentencing only prejudi- be viewed as prejudiced —can because his fear of being cial to the outcome of sentencing pro- electrocuted him made appear withdrawn ceeding. only Not did Lennon stun and unremorseful jury. revealing counsel jury Court found no merit in that Stevens had engaged in necrophilia this claim. While acknowledging that *15 murder, after the gave also prose- the since the time of Stevens’s trial it had cution a gift by expressing his belief in decided that criminal may defendants not dangerousness future subject —a be required to wear stun in belts Indiana prosecution that the itself is not permitted courtrooms, see Indiana, Wrinkles v. 749 to argue as aggravating an circumstance N.E.2d (Ind.2001), 1179 the court conclud Indiana law. See Wisehart v. ed that Stevens was not prejudiced by Indiana, 23, (Ind.1998). 693 N.E.2d 60 being forced to wear the device because Not only did Dr. Lennon’s testimony al- jurors were not aware that he had it most certainly influence the jury against on and juror because testimony at the Stevens, evidently also had a strong post-conviction hearing did not indicate impact on the trial judge. One cannot that the device significant had a effect on read order, court’s sentencing with its Stevens’s demeanor. references deliberation,” to “cool “self- preservation,” and gratification,” “sexual The analysis Court’s without seeing a close reflection of Dr. of this claim is not unreasonable. Al- Lennon’s report written and testimony. though the jurors six who testified at the post-conviction hearing

We stated conclude that that the conduct of Stevens Ste- appeared lawyers emotionally vens’s at capital trial, withdrawn at sentencing proceedings appeared fell also below the constitutional withdrawn in the minimum videotaped standard and that this was confession in prej- which he was not udicial to wearing Stevens. any Indiana Supreme The restraint. It is thus impossi- Court’s ruling to the contrary ble to amounted know whether Stevens’s demeanor an application unreasonable Strickland. trial was a result of being forced to wear the stun just belt or reflective of his

C. Other Claims general more state of mind and the emo- In addition to his arguments about his tions he was experiencing in the court- counsels’ handling of expert psycholog- room.

899 if, Procedure of Civil Rules claim, Federal Ste- this salvage attempt to an that, judge in stun belt of a extent to the use that contends vens inherently preju- good and for criminal during a his discretion exercise not, do by Stevens cases cited The so, dicial. but not to do leave grants shown cause instead They hold however, go so far. concluded court The district otherwise.” free right be general that defendant’s in not warranted discovery was that abso- is not courtroom of restraints presented the letters Stevens because case balancing on a is based lute, rather it but showed alleged deal evidence to be viewed right the defendant’s attempted prosecutors only that jury against by the light prejudicial housing a safe “to obtain Eastin assist v. Deck security. See for need court’s system so prison within assignment 633, 622, 125 S.Ct. Missouri, U.S. 544 as- possible from be free he could (2005) (noting 953 2007, L.Ed.2d 161 upset were who inmates de- fellow routinely place from sault “courts cannot although re- physical peti- against or other having in shackles testified fendants pen- during the jury to the visible straints tioner.” proceeding,” capital aof alty phase the district only that argues abso- “is not requirement constitutional between correspondence read court account may take judge aso lute” narrowly, and Eastin too prosecutors may call ... circumstances “special a broader have inferred it should Flynn, v. Holbrook shackling”); Suf- reached. been deal had preexisting 1340, 89 568-69, 106 S.Ct. U.S. persuaded. are not say that we it to con- fice (1986) that “the (holding L.Ed.2d security per- interpretation court’s district deployment ... spicuous must during trial” only possible a courtroom not the letters, perhaps sonnel while basis); “case-by-case” aon reasonable, be evaluated them, look way to Allen, 397 U.S. Illinois discovery on this basis denial its (1970) (declin- 25 L.Ed.2d S.Ct. its discretion. well within *16 of gagging binding that the ing to hold is unconstitutional defendant criminal a Ill circumstances”). any possible “under reasons, judgment foregoing For the cases, we of line with this keeping is court the district of aas belt a stun Affirmed of the use described relief corpus habeas it denies minimize^] that that extent restraint of “method[ ] conviction, be- it is hidden because prejudice” respect Stevens’s risk of with clothing. United Re- defendant’s is a case neath The is otherwise Vacated. (7th Brooks, 502 F.3d v. States a' writ to issue instructions with manded Cir.1997). the current vacates that corpus. habeas The State punishment. capital that argument sentence final per death refusing to a new to conduct court erred is free the district al into an discovery ap- to conduct it files mit him hearing, providing penalty prosecutors deal between pre-trial leged relief such seeking documents propriate Eastin, in which Tracy witness and state from the mandate days of within Eastin give going to were prosecutors court. exchange in leniency requesting letter 6(a) Rule against Stevens. in concurring RIPPLE, Judge, Circuit 2254 Cases Governing Section the Rules part. dissenting part and states Courts District States in the United opinion principal agree I invoke entitled be party shall “[a] trial counsel Mr. Stevens’ holding discovery available processes constitutionally ineffective during pen- eludes that “the Indiana Supreme Court’s alty trial, and, phase of the therefore, that conclusion that no jury could conclude Mr. is entitled to new sentencing Stevens did not appreciate the wrongful- proceeding. I separately write I because ness of his conduct at the time of the believe that counsel’s shortcomings not murder was not implausible.” Id. at 893. only affected Mr. Stevens’ sentence, but words, In other the Supreme Therefore, also conviction. I would Indiana’s conclusion—that Mr. Stevens grant habeas with respect relief to his had not any suffered prejudice as a result conviction as well as his sentence. of his counsel’s missteps not unrea- —was

sonable.

As the principal opinion explains, coun- sel for Mr. Stevens were aware “that a In reaching conclusion, I believe comprehensive mental health evaluation that the principal opinion reads the deci- would be a crucial prerequisite for deter- sion of Court of Indiana too mining trial strategy, yet after Lennon broadly. With respect to question provide failed to them with an such evalua- whether trial counsel’s investigation of the tion they neglected to consult an alterna- expert adequate, the Supreme Court tive expert.” health Slip op. at 891. of Indiana concluded: “The trial court de- Counsel any did offer strategic basis termined that defense counsel adequately for not seeking out additional expert ad- investigated issues of substance abuse and vice, and proffered the State’s explanation mental illness and reasonably pur- chose to for the reasonableness of counsel’s choices sue different strategy. post convic- does not suffice to justify their actions. tion court did not err denying relief on See id. The opinion, principal therefore, this claim.” State, 770 N.E.2d concludes, correctly, that light “[i]n of Ste- (Ind.2002) (footnote omitted). lawyers’ vens’s admissions and the overall This language speaks in terms of attorney weakness of the they presented Strickland’s, focus of —the trial, we are inclined to believe that their first prong than to prejudice —rather —the performance was Slip ineffective.” op. focus of Strickland’s second prong. Later 892.1 The principal opinion turns then to in opinion, its the Supreme Court of prejudice Strickland’s prong to determine *17 Indiana also addresses counsel’s decision whether Mr. may. Stevens’ conviction have present a voluntary manslaughter theo- been by affected counsel’s failure. ry opposed as to presenting a mental dis-

After reviewing the standards for men- ease defense. After reviewing counsel’s tal illness under Indiana law and also the actions, the state supreme court again uses standard for demonstrating prejudice un- language speaks that to the performance der the principal opinion con- inquiry Stnckland> of the first prong of Strickland: 1. notes, As principal the opinion counsel's Finally, id. precluded nothing counsel from sole reliance on voluntary manslaughter de- pursuing a voluntary manslaughter defense fense is troubling for several reasons. See and at the same presenting time evidence of slip op. First, at 892. presented the facts as mental illness. Both focus on the defendant’s to the trial justify court did not a voluntary ability requisite to form the criminal intent to manslaughter Second, instruction. securing murder, commit and the record sug- does not a voluntary instruction, manslaughter like gest any justification for only pursuing the pursuing defense, a mental illness would have former course. opened the door to testimony. Eastin's See an unrea- to, involved ‘contrary or sion that found court post-conviction “The of, clearly established application voluntary sonable the pursue decision counsel’s by the Su- determined law as ultimately Federal strategy, while manslaughter unrea- on an Court,’ based “was or preme deficient unsuccessful, not amount did light the facts in of determination And, the again, sonable at 753. Id. performance.” in the State presented the evidence that de- of upheld Indiana of Court Supreme ”). only “This standard proceeding.’ as the court evidence that conclude “We cision: adju- however, claim that was to a un- applies, unerringly lead not does a whole pro- court in State that on the merits opposite dicated decision to a mistakably (internal marks quotation court, and ceedings.” Id. by post-conviction the reached omitted). practical of “As choice citations counsel’s defense that find we the apply cannot matter, court ineffec- a federal constitute not theory did defense 2254(d) sum, §by provided Id. In standard of counsel.” deferential assistance tive decision its any state court rested of the of absence Court Supreme the equally is principle Stevens’ Id. This of Mr. merits the issue.” rejection inquiries claim on separate counsel the of applicable assistance ineffective of it not the words did In prong; of prong Strickland. each Strickland’s is not Court, prejudice. “our review of question directly the Supreme the address conclusion by a court state circumscribed 3. the of as neither prejudice, respect to with prong below reached case, courts that, state in the usual instructs AEDPA v. Wiggins analysis.” Strickland the to a state- standard a deferential apply we 123 S.Ct. Smith, 539 U.S. by challenged determination court Thus, the (2003). because 156 L.Ed.2d v. Canaan See petition. habeas way of not reach did Cir.2005) of Indiana Court (7th Supreme 376, 382 McBride, 395 F.3d we need prejudice, question 2254(d) that we requires (“Ordinarily, deference;2 to see look we AEDPA apply court’s deci- state whether determine Davis, 470 F.3d Garth merits.” considering decision addition case, (7th Cir.2006). In this Indiana, Judge Manion Supreme Court Indiana, men- although specifically Court question of that, assessing the suggests been have could evidence tioning other relied at rationale look we should prejudice, a men- mounted Mr. Stevens introduced well, specifi- court by the state upon (namely testimo- Eastin's tal illness "finding court’s cally state trial descrip- alternative ny), not mention did altered evidence psychological additional encounter last sexual Mr. Stevens’ tion of Ste- between the sexual encounters nature may have been omission Zachary. This op. at 907. Concurring Zachary.” vens may been inadvertent, evidence or "[tjhe Su- acknowledges that Judge Manion to "substantial reference encompassed specifically did not of Indiana preme However, also incriminating evidence.” description of the sexual different mention Supreme Court may the case be *18 encounter, trial rejected the court’s but never court's agree with the did not evi- that additional stated findings and twice funda- facts additional the conclusion the opened the door to 'would dence “rela- jury’s of the view the mentally altered incriminating evi- of substantial admission Zachary. tionship” between Mr. during the presented otherwise not dence statutory for modern rationales the One of ” (quoting Stevens Id. at 907-08 phase.’ guilt a mi- relations sexual rape is that laws (Ind.2002)). State, 770 N.E.2d Zachary, are young as nor, as especially one See, Daryl e.g., AEDPA, "inherently nonconsensual.” review under of our purposes For Comment, Rape in Statutory Olszewski, J. "is that decision operative state-court the & the Need History, Rationale Wisconsin: the claim on to address court last state only there whether is proba- reasonable “nil,” the crime was id. at 2029. Dr. that, bility but for errors, counsel’s the Coons echoed Dr. Kaplan’s diagnoses, see result the trial would have been differ- 1885-86, at id. and also that, concluded at ent. offense, time of the Mr. Stevens was “laboring under extreme emotional distur- bance” and was impaired his ability both case, In this conform presented evidence at conduct to requirements Mr. post-conviction Stevens’ hearing estab- law to appreciate the wrongful- lished that Dr. Lennon’s ideas concerning conduct, ness of his id. at 1891-92. In mental illness were “completely short, aban- had counsel secured an expert who doned” Psychiatric the American Asso- adhered to mainstream theories within the ciation in the 1980s and that “anyone who psychiatric and psychological communities, subscribes to the ‘myth of mental illness’ is expert would have presented evidence really not in the mainstream of current establishing the elements aof mental ill- thought among professionals.” Post Con- ness defense under Indiana law. slip See (“PCR”) viction Record at 2015 (testimony at op. 892 (quoting 35-41-3-6). § Ind.Code Kaplan). Dr. Mr. Stevens’ counsel “had Given evidence, concluded I that Dr. Lennon believe that there [a] ” ‘quack,’ at but did least not reasonable engage further, that, probability critical investigation of Dr. the jury privy Lennon’s been testi- evidence, to this mony or his theories its would result have led would have been different. I them to seek the assistance of must respectfully another register my disagree- expert. Slip op. at 896. ment with the principal opinion that, these circumstances, there is a fundamen- Had Mr. Stevens’ counsel in- sufficiently tal difference between mounting an insan- vestigated Dr. testimony, and, Lennon’s ity defense and establishing result, statutory secured expert additional evalua- mitigating factors for tion, purposes capital the jury would presented have been sentencing. See slip op. with a psychiatric Here, at 897. explanation for Mr. Ste- experts not only presented vens’ actions. At post-conviction the state evidence that could hearing, establish Kaplan Mr. that, testified operating time Mr. Stevens “under the offense, committed the influence” of a men- “he was tal laboring disease under dissociative time of disor- the murder —a der not specified, mitigating otherwise factor under borderline Indiana’s capital personality disorder, and sentencing law, intoxication from see Ind.Code 35-50-2- LSD and the 9(e)(2), marijuana,” aftereffects of but also that he was “unable to PCR at and that Mr. Stevens’ capaci- appreciate the wrongfulness of the con- ty to make a personal choice at the time of duct at the time of the offense”—a de- Reform, Marq. (2006). L.Rev. door to the admission of substantial in- Supreme may of Indiana have con- Stevens, 770 N.E.2d at evidence,” criminating that, cluded even absent this evidence that the is meant to address Strickland’s second last forcible, consensual, encounter was prong, it is not at all clear jury already would have considered Mr. Court of Indiana meant encompass within Stevens to short, be a predator. sexual statement reference to the state trial

jury's view would changed not have with the findings court’s concerning the nature of the introduction of this additional evidence. relationship *19 between Zachary and Mr. Ste- Thus, even assuming that Supreme the vens. Consequently, these findings should Court of commentary Indiana's on "open[ing] not factor into this court’s analysis. AEDPA experts competent testimony the cause 35-41- crime, Ind.Code see the fense actions Mr. Stevens’ explained have would 3-6. also illness and his mental terms of in principal that the I Additionally, believe any impact the have diminished would pre- the downside overstates opinion I do of premeditation, inculpating evidence during disease senting a mental Mr. that a determination believe that not opinion principal The phase. guilt the by his coun- prejudiced not was that reasons strategic that “[t]he states could be character- judgment lapse of sel’s stretch, this deci- justified at a might, one. as a reasonable ized we apart fall when phase, guilt at the sion Ste- sentencing phase at the consider Conclusion op. at Slip to lose.” nothing left had vens reasons, only I not foregoing For the matter, Mr. Stevens practical aAs 896. with relief habeas Mr. Stevens grant would phase. guilt lose the at nothing had sentence, grant would I also respect to his that, time testimony the expert Absent On to his conviction. respect writ with the were actions Mr. Stevens’ killing, of the part in dissent I ground, respectfully and he was disorder by a mental caused of the court. judgment from actions, jury was unable to control to con- than alternative other with no left concurring in MANTON, Judge, Circuit chose to only not Mr. Stevens clude dissenting part. in and part but also predatory pedophilia, in engage part court as to of the join opinion I as victims of his disposed willingly that he concerning the the claims regarding II-C own interests. by his dictated I concur discovery issues. belt and stun relief denying habeas Judge Wood with conviction, write separately but from Furthermore, the decision even if state with the my agreement explain Indiana, by itself either Supreme Court dissent respectfully I reasoning. court’s post-conviction with the conjunction inor for the relief of habeas granting from Stevens, decision, see trial court’s I conclude because sentence penalty death be construed n. could N.E.2d denying col- court’s decision state I prejudice prong, reaching Strickland’s unreasonable not include did relief lateral con- opinion’s principal join not could facts and was determinations Supreme the decision clusion that application an unreasonable contrary to or one. awas reasonable of Indiana Court precedent. during the post-con- expert was Christopher Stevens May that Mr. Stevens’ shows hearing viction Marion from probation released developing recipe for “a upbringing been in Indiana where County jail disorder.” a dissociative with someone child molestation. serving a sentence testified experts Both at 2020. PCR father, home whose with moved in He Mr. Ste- disorder, conjunction with of ten- as that subdivision in the kill same infirmities, caused him vens’ other family. In the Zachary Snider’s recogniz- year-old him from Zachary prevented video- summer, attended early Addi- of his actions. wrongfulness ing League Zachary’s Little taped one na- explained how Kaplan tionally, Dr. permis- later, father’s with his games disorders of Mr. Stevens’ ture rela- fishing. Stevens’s sion, Zachary took Zachary killing of to the leading events sexual Zachary culminated tionship with Be- premeditation. were inconsistent *20 contact with him. Because a fuller finished, recita- Stevens led Zachary by the significant tion of the facts is to evaluating hand into his brother’s room and the two and understanding the Supreme Court of got onto the bed. Stevens took one of decision, Indiana’s the following por- is a his pillows brother’s placed and it over tion of that factual findings: court’s Zachary’s face in attempt an to suffocate

In the videotaped confession ... Ste- him. Zachary did really resist; vens told the officers on Thursday, rather, just “he kept sayin’ you, I love ” July Zachary visited Stevens in the Chris; you, I love Chris.’ Because the afternoon, early stayed but only for a pillow “wasn’t doing anything,” Stevens time, short saying he would return looked around the room and noticed a after he had picked up some money, Sega Genesis controller on the floor. father, talked to his changed and his picked and, He up cord, using returned, clothes. When he Zachary wrapped it Zachary’s neck, around and Stevens talked for a while as Ste- just first once but then two or three vens flipped through the channels on his times, and strangled boy. When television, then the and two went Stevens “thought over,” it was all he Stevens’ bedroom around,” and “messed removed the cord from Zachary’s neck mainly which included the perform- two proceeded and to pace back forth ing fellatio on each other but never anal between Stevens’ brother’s bedroom and activity sex. This was not new to the his own room looking at Zachary’s body pair, they had had an ongoing sexual and contemplating what he would now relationship shortly since after Stevens do. returned to Stardust Hills after serving About five minutes Zachary, later while his time County jail. Marion Af- unconscious, still began to deep take they ter awhile,” “did stuff for Zachary So, said, breaths. “I went [into angrily confronted Stevens with a rumor my got kitchen] and a trash bag put he had heard concerning Stevens having it over his head and wrapped it around sexual Zachary’s relations mother. head, he so, you unconscious rumor, Because of Zachary threat- know, I knew he wouldn’t be ripping it ened to Zachary reveal and Stevens’ off his face and stuff.” Once the child sexual relationship to his parents. This suffocated, Stevens carried Zachary threat made Stevens “real scared.” He from his brother’s bedroom into his own stated, room and boy’s laid the body on his bed. said, he, He he threatened tell ... Stevens later revealed to a psychologist him, and, about me uh, just I’d for the defense killed for fear of went through a bunch of [expletive] in having to return to prison brought Indy, and just, just that was on my Zachary’s threat to tell. like, mind. I just I didn’t want to, thinking myself, know, you I Stevens then went out to the garage, just can’t go through all that [exple- pulled trailer, mower, lawn grill again. tive] onto the driveway to make room for his Zachary’s threat, After car, the two brought “messed his car into the garage, and more,” around some which Stevens shut the garage door. He placed then again stated meant “having sex.” Once Zachary’s bike1 in car, the back of the original.] [Footnote in Zachary's bike was "whenever he comes I put over have him because, already garage in the stated, *21 Snider, police- a he saw with Mrs. talked body and Zachary’s got in and went Sniders’ up walk the car, arrive and man and of his in the back also it placed “didn’t Stevens driveway. Because a cover. with them both then covered told Mrs. cop,” he the how to be around he want in detail described then Stevens couple a “go check would threw that he country and Snider the into out drove Ste- departed. bridge, quickly a and over of places” bike body and Zachary’s asking houses to various the then to reach vens went he took naming the roads Zachary. seen got they if occupants the bike Initially, location. remote could anybody “where in a caught tree Stevens returned night Later by,” so by or drove walked they if see he leav- recalled body because Zachary’s pulled there” and down “jumped Stevens wrapped bag trash ing plastic beneath bicycle body and Zachary’s both stated, Stevens Zachary’s head. around of mind his state relating bridge. trash get there out “I back went immediately and murder during you guys [the if cause, figured I bag “ner- himself as thereafter, described he looked bag and the trash seen police] and “not scared,” frantic” “all vous and kind of the same seen our house and thinking.” really and, Stevens de- and bags stuff.” trash Mark home, telephoned Stevens Once handle bag as one with the trash scribed pushing help to request White inside. ties, and black outside green ga- his driveway back into in his trailer drove bag, Stevens recovering Upon and Stevens assisted After rage. White and, traveling after scene away from the grill and mower left, placed Stevens bag out of his distance, threw some inside and went back garage, in the back Stardust returning to Upon window. Stevens evening, Later his house. Sniders’ to the went again he Hills down sprayed Lysol a can took they had whether inquired house car to in the car, the cover used he telling them was yet, anything heard bike, and his and body and conceal he was because late hour at that up bas- played also He beds. his brother’s sleeping. having trouble time White, during which ketball confession, police searched After the driving around the the Sniders saw by Stevens. bag mentioned trash for the Zachary. looking for neighborhood de- matching Stevens’ one They found playing finished White he and When about road the side scription Mrs. Snider basketball, called Stevens located. body was from where mile Zach- their search the status learn during their bags observed other While inquir- guise under the ary, but did so trash, con- this one all contained search tickets. concert rock some ing about debris, and dust only road tained if asked call, Snider Mrs. During contained “at one time appeared day, to Zachary that had seen Stevens stretched it to be caused something that said, Snider “No.” Mrs. which ato day, pursuant out,” that same Later missing, Zachary was revealed then similar warrant, found police search them look. help offered to and Stevens video Genesis Sega bags trash call that she would replied Mrs. Snider home. in Stevens’ and controllers game Although help. they if needed him by police body found back, over went called never she den- through identified later bridge was As he p.m. just before home to their there.” his bike nobody will see [] so garage [...] in the bike tal records as that of Zachary Snider. (1984). S.Ct. 80 L.Ed.2d 674 Also, Mr. Snider later identified the requires Strickland petitioner claiming *22 bike body found with the to be Zacha- ineffective assistance of counsel to demon- ry’s. pathologist The performed who strate both constitutionally per- deficient though unable autopsy, to determine formance and prejudice. In ineffective as- the cause of death because of the state sistance of claims, counsel this court has decomposition, observed no evidence explained that, inconsistent by with death either stran- [if] state court has denied a Strickland gulation or suffocation. He found no claim merits, on the under the AEDPA broken bones and no any evidence of generally we review for clear error. As injury penetrating to the torso or lower we Gilmore, noted Holman v. “Strick extremities. When asked about the po- land for inquiry calls into degrees; it is tential for a natural death, cause of a balancing rather a bright-line than pathologist replied that the tissues of approach.... This means that only a heart, liver, lungs, and kidneys clear error in applying Strickland’s available for examination showed no standard would support a writ of habeas signs of disease. The forensic entomol- corpus.” 876, (7th 126 F.3d 881-82 Cir. ogist who examined samples insect 1997). This is because “Strickland found in body and in the soil under builds in an element of deference to the bridge placed the time of death counsel’s choices in conducting the liti sometime between noon and sunset on gation 2254(d)(1) [and] layer adds a July 15. respect for a state application court’s Ind., Stevens v. State 691 N.E.2d the legal standard.” Id. (Ind.1997) (internal 418-19 citations to the omitted). record Stevens was charged United States ex Pierson, rel. Bell v. 267 degree murder, first and prepa- (7th Cir.2001) F.3d 557 (emphasis rations proceedings followed. The added). We therefore review for clear principal issue in appeal this involves the error Supreme Court of Indiana’s expert testimony of a psychologist, Dr. decision. Lawrence Lennon. Dr. Lennon did not

testify at guilt phase respect With trial, of the perform- Strickland’s only during penalty ance phase prong, I and at am sentenc- not “inclined to believe ing. Stevens claims that that [trial counsel counsels’] was was inef- ineffective fective,” at both guilt guilt penalty stage Judge Wood’s phases for retaining Lennon, only opinion suggests. Ante at 892. Nonethe- whom Stevens characterizes as less, an inade- I agree with Judge Wood that quate and prejudicial expert. The state state court did not clearly err in applying court post-conviction denied relief on this Supreme precedent Court regarding the basis. guilt phase of the trial because Stevens

To prejudiced obtain habeas corpus relief in per- counsels’ court AEDPA, under formance. Stevens must The Supreme show Court Indiana the state court’s cites the determination correct standard to prej- evaluate contrary to or an application unreasonable udice Strickland, specifically noting of Supreme precedent, Court or an unrea- that Stevens must demonstrate “that his sonable determination of the facts. Cen- counsels’ errors were so serious as to de- tral to appeal is the familiar prive case of him of a fair trial because of a rea- Strickland Washington, U.S. sonable probability that, but for counsel’s psycho- the additional finding that amade errors, result would unprofessional altered nature evidence logical v. State different.” been between Stevens (Ind.2002) encounters (citing sexual 739, 746 Ind,., N.E.2d trial had understanding at Zachary. The Strickland, 466 U.S. inter alia was “consensu- that the molestation 2052). of been S.Ct. Kaplan of Drs. al,” but the reason- “[a] clarified that further post-conviction during the state Coons sufficient probability is a probability able story. Accord- hearing reveals a different outcome.” undermine confidence *23 Zachary and Stevens Kaplan, Dr. ing to Strickland, 104 466 U.S. (citing Id. were 2052). course, a cor- than “more Of S.Ct. a decision [Ste- to avoid and then play, is needed as wrestling citation around

rect and, well, federal clearly established his shorts ‘contrary grabbed to’ vens] Watters, F.3d pe- 467 ... Steven[s]’s hit Burgess Zachary I think law.” court, Cir.2006). how- (7th his grabbed The state nis, then [Stevens] and standard, down, that apply this and at ever, shorts, them proceeded pulled ill- know, mental alternative had then that an he—he concluding again, you point, him, “was not phase Zachary, guilt at the made himself on forced ness they this defense ... know, penis, because pitfalls” its his and you suck without after the And then had sexual relations. ad- to the the door opened have would concluded, Zacha- relations were sexual incriminating evi- of substantial mission know, “I’m to tell him, going you ry told during presented otherwise not dence to me.” you did what my mother about included evidence This guilt phase. as the then, saw again, he Zach And that, upon a witness testimony of now. victimizer jail onto from release prior defendant’s of previous conviction for probation testimony provided his earlier in Kaplan had de- the defendant molesting, child following analysis: next his planned kill that he clared mind, was a seducer he [Stevens’] In returning to avoid molesting victim child children. raper of children, not forced jail. he felt this as what saw long as he So anything consensual, see he didn’t Further- 749; at 753. to be also id. see Id. probably that’s it. And wrong noted with of Indiana more, Supreme Court Zach- him with problem ex- greatest post-conviction one that the first that ary murder Coons, “acknowledge[ed] is Dr. perts, another himself on wrongful- he had forced time appreciate the could [Stevens] him, had sex. And forcibly steps to child and when took of his conduct ness his incongruent with very very, n. 5. that was body.” Id. at Zachary’s hide and sexual evidence, he was what concept the Su- who additional Based is. molestation Indiana noted Court of preme had little have testimony “would Coons’s did of Indiana Court Id. jury’s verdict....” on the effect no descrip- or the different mention specifically encounter, never but the sexual tion incriminating evidence piece Another and twice findings court’s the trial rejected evidence come into would evi- mental illness additional ex- stated health mental the additional through opened door “would have na- dence description a different is perts incriminating evi- of substantial admission between Ste- encounters the sexual ture during the presented not otherwise court dence Zachary. The state vens Stevens, guilt 753; phase.” 770 N.E.2d at Supreme Court of Indiana found that Ste- sum, see at 749. also id. the state counsel “presented vens’s various wit- court’s determination that Stevens did not showing nesses evidence various miti- prejudice suffer from his per- counsels’ gating including circumstances parents’ his guilt phase at the formance is not contrary divorce and living his homes of to or an application unreasonable of Su- people different while growing up, the de- preme precedent. I agree therefore fendant’s troubled including childhood suf- Judge that Stevens Wood not enti- fering abuse, childhood sexual his adoles- tled to habeas from relief conviction. his cent alcohol and use drug diagnoses Proceeding penalty phase, just to the as passive personality, depression the state court did not err upholding suicide attempts, and poor academic court, conviction, the state similarly did performance.” Stevens, 770 N.E.2d at denying not err in relief from the death 753; McBride, Woods v. 430 F.3d cf. penalty I respectfully sentence. therefore (7th Cir.2005) “[cjounsel (noting that *24 disagree Judges with Ripple Wood and re- actually this case presented mitigation garding habeas from relief the death pen- evidence during the penalty phase rather alty sentence. than a half-hearted attempt to deflect cul- Supreme pability defendant.”) Court of from the Indiana conclud- (citing Wig- Smith, ed that attorneys gins “investigated trial 515-18, 526, U.S. the mental through health issues (2003)). use of 123 S.Ct. 156 L.Ed.2d 471 Stevens, Dr. Lennon.” 770 N.E.2d at 755. In the context of challenging a death pen- The court quoted further with approval alty sentence, “the question is whether “ ‘[djefense finding court’s that coun- there is a that, probability reasonable ab- investigation sel’s of Petitioner’s mental errors, sent the the sentencer ... would prior health and drugs use of was reason- have concluded that the balance of aggra- ” able’ and that defense counsel pursued a vating and mitigating circumstances did “ ‘strategy portraying of petitioner as a not warrant Strickland, death.” 466 U.S. ” passive victim of abuse’ at the penalty 104 S.Ct. 2052. The prosecutors phase. Furthermore, Id. at 754. the state argued for three aggravating factors war- trial court that found based on the fuller ranting the death penalty, which the jury description of Stevens’ relations Zach- with each found to proven be beyond a reason- ary “[tjhe that experts offered, new able doubt: that the defendant committed jury would not consider violent, such a the murder intentionally killing the vic- predator voracious as someone deserving a tim while committing molestation, child penalty less death.” than See Stevens that the victim was under of age Supp.App. at 65. twelve, and that the defendant was probation

In penalty phase after a testimony, felony conviction. The Supreme Lennon regarding testified Court of Stevens’s per- emo- was “not tional suaded that immaturity impact and the of abuse evidence in the record and his drugs unavoidably points mother’s use of and alcohol opposite towards an re- on Stevens’s sult” development. from mitiga- This the state trial court’s conclusion tion testimony in addition to testimo- counsel were Stevens, not ineffective. ny from a variety of Stevens’s 770 N.E.2d at relatives 755. Under the deferential and individuals who testify could AEDPA, about of standard not is a decision provide documentation regarding his contrary is to or an unreasonable deplorable case, childhood. application Supreme of Court precedent. Moines, IA, Said, for H. Des Michael failed Dr. Lennon true It prepare Petitioner. not instructions counsels’ follow prosecutor’s responded report, Smith, A. Hussey, Patricia W. Thomas necrophilia, regarding question

unexpected Justice, of Im- of Office Department U.S. therapy. form his unusual discussed Station, Ben Franklin Litigation, migration Yet, his witness. very good not a He Scialabba, DC, De- U.S. Washington, Lori (his first phase penalty at the performance Justice, for Executive Office partment case, he did since in the VA, Church, Review, Falls Immigration render does not guilt phase), testify at the Respondent. for ineffec- counsels’ importantly, More tive. that counsel conclusion Indiana’s SMITH, MAGILL, Before unreason- reasonably is not an

performed BENTON, Judges. Circuit prece- Supreme Court application able that the not follow it does Therefore dent. PER CURIAM. have concluded judge or “would jury mitigating Soriano, aggravating and a citizen Cornejo balance Wenceslao if death” not warrant did of an Salvador, circumstances petitions review El testimony pre- expert additional faced Immigration Appeals the Board order of diagnosis of disassociation. senting (BIA) or motion reconsider denying his Strickland, 104 S.Ct. 466 U.S. reopen. *25 confession videotaped Having reviewed BIA within that the acted conclude We record, that the I do not find well as the motion. denying Soriano’s discretion its unreason- court’s determination state F.3d 695-96 Ashcroft, 375 Patel v. See dissent respectfully I Consequently, able. review). Cir.2004) (standard (8th We the death relief on granting habeas from was ineli- that Soriano the BIA agree with sentence. penalty removability under for a waiver gible (INA) Nationality Act Immigration and (re- 1182(c) (1994) 212(c), § § 8 U.S.C. 1997), because Apr. pealed effective SORIANO, Cornejo Wenceslao remova- he was found for which ground Petitioner, felony of sexual abuse aggravated ble—the statutory coun- not have minor —does inadmissibility grounds in the terpart GONZALES, States United Alberto 1182(a). 212(a), § § 8 U.S.C. in INA listed General, Respondent. Attorney (§ 212(c) (2005) 1212.3(f)(5) § 8 C.F.R. See No. 05-2590. if alien removable is be denied shall relief of Appeals, States United statutory not have does ground which Circuit. Eighth inadmissibility grounds counterpart INS, F.2d 212(a)); Campos v. Oct. 2006. Submitted: 212(c) Cir.1992) (§ (1st waiver 309, 312-15 19, Oct. Filed: facing deportation to alien granted may be 12, 2007. Feb. Ordered Published: exclusion ground there only when triggering-deporta- charge comparable Blake, Dec. I. & N. tion); In re