In the
United States Court of Appeals
For the Seventh Circuit
Nos. 04-3549, 06-2905
E RIC D. H OLMES,
Petitioner-Appellant,
v.
M ARK E. L EVENHAGEN ,
Respondent-Appellee.
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
Nos. 00 C 1477, 05 C 1763—Larry J. McKinney, Judge.
A RGUED F EBRUARY 19, 2010—D ECIDED A PRIL 2, 2010
Before P OSNER, F LAUM, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. This is the latest stage in a pro-
tracted federal habeas corpus proceeding in which Eric
Holmes (we shall continue to call him by that name
even though he changed it to “Koor An Nur of Katie
Mary Brown” after converting to Islam) challenges the
death sentence that an Indiana court imposed on him
in 1993 after a jury convicted him of two murders that
he had been accused of committing in 1989. He sought
2 Nos. 04-3549, 06-2905
federal habeas corpus in 2001, raising a number of
colorable issues one of which was whether he was compe-
tent to assist his lawyers in that proceeding. The district
judge, refusing to provide funds to enable Holmes to
hire a psychiatrist or psychologist who would give evi-
dence concerning his mental condition, ruled (after ques-
tioning him in April 2003 in an effort to form a judgment
about his competence) that he was competent. The judge
went on to reach the merits of the habeas corpus claim
and deny relief. Holmes appealed, and before taking up
any of the other issues we ordered a limited remand for
a determination of his competence to proceed with the
appeal in light of affidavits, presented by his lawyers, that
suggested that his mental condition had deteriorated
since the April 2003 hearing.
On remand the judge obtained reports from two psy-
chiatrists, one chosen by the state (Dr. Dan A. Olive) and
the other by Holmes (Dr. Rahn K. Bailey). The judge
denied Holmes’s request that Olive, whose report was
equivocal, be made available for cross-examination, and
again found Holmes competent.
The appeals then resumed, and in Holmes v. Buss, 506
F.3d 576 (7th Cir. 2007), we reversed the dismissal of the
habeas corpus action because the judge’s analysis of the
issue of competence had, we decided, been inadequate.
One of the errors that moved us to reverse was his
refusal to allow the cross-examination of Olive. We re-
manded the case with directions to the district judge to
reexamine the issue of competence.
A case in which the plaintiff (in habeas corpus cases the
“petitioner”) pleads incompetence is of course unusual,
Nos. 04-3549, 06-2905 3
since if the court rules that he is incompetent his case
is suspended indefinitely and he gets no relief. But as we
explained when last the case was here, “in a capital case
the petitioner may prefer to languish in prison than to
see his claims for postconviction relief denied, opening
the way to his execution.” 506 F.3d at 578-79. Even if
Holmes were to prevail in his habeas corpus proceeding,
that would just get him a new trial, and if he were
again convicted he might again be sentenced to death.
The question is not whether Holmes is insane—as he
plainly is (the state does not deny that)—but whether he
has sufficient mental competence to work with his
lawyers in prosecuting a federal habeas corpus pro-
ceeding at both the district court and court of appeals
levels. That depends on the nature of the decisions that
he and his lawyers have to make in prosecuting the
habeas corpus action. Some of the decisions are techni-
cal—the sort that only a lawyer could make because they
turn on esoteric points of law. Others, however, are
strategic, such as whether to argue mental incompetence
or to go for broke by arguing the merits of the habeas
corpus claim and so risk execution if the claim fails. There
is also the question of which claims to emphasize—
whether to give them all equal weight or not, and perhaps
omit some altogether. Partly these are tactical issues to
which a layperson would be unlikely to have anything
to contribute; but not entirely. For example, one of the
main claims in the habeas corpus proceeding is denial of
due process of law because of an incident at Holmes’s
trial in which the prosecutor waved a sheaf of photo-
graphs of the crime scene in front of the jury at closing
4 Nos. 04-3549, 06-2905
argument and the trial judge became so upset at the
prosecutor’s misconduct—she had previously ruled that
this “victim impact” evidence was inadmissible—that she
screamed at him. Holmes’s current lawyers were not at his
trial, and didn’t hear the scream. He says he did. And he
argued in postconviction proceedings the related point
that he “knew” that the prosecutor had tried, though
ultimately unsuccessfully, to get the judge removed
from the case because of her rulings on the admissibility
of the victim-impact evidence. Holmes’s recollections
could help his lawyers formulate a persuasive argument
that there should be an evidentiary hearing at which
the judge at Holmes’s trial would be asked to testify
about the prosecutor’s conduct.
The question whether to plead incompetence at all, or
to go for broke, is the most obvious question on which
input from the petitioner would be important to the
lawyers’ decision. Even a competent Eric Holmes might
have little of value to add to his lawyers’ advocacy if the
issue of competence dropped out and all the district
court had to decide was whether Holmes’s con-
stitutional rights had been violated at the trial or at sen-
tencing.
Indiana’s Rules of Professional Conduct require
Holmes’s lawyers to consult with him even on tactical
questions, if they are fundamental, such as which sub-
stantive claims to emphasize and which to downplay or
omit, what concessions to make or refuse, and whether
to push for an evidentiary hearing. Indiana Rules of
Professional Conduct, Rule 1.4 (2010). Rule 1.14 of these
Nos. 04-3549, 06-2905 5
rules states that “when the lawyer reasonably believes
that the client has diminished capacity, is at risk of sub-
stantial physical, financial or other harm unless action
is taken and cannot adequately act in the client’s own
interest, the lawyer may take reasonably necessary pro-
tective action, including consulting with individuals or
entities that have the ability to take action to protect the
client and, in appropriate cases, seeking the appoint-
ment of a guardian ad litem, conservator or guardian.”
When the issue is competence to appeal, the tactical
question whether to plead incompetence and if one
prevails perhaps remain on death row for the rest of one’s
life, or to press for a new trial even at the risk of another
conviction and another death sentence, becomes all-
important, and it is a question on which input from
the petitioner is vital. It’s not really a lawyer’s decision
at all, though the lawyer can advise on the likelihood
that habeas corpus relief will be granted and, if so, that
the petitioner will again be sentenced to death and
perhaps have then no basis for seeking relief.
On the latest remand, the district judge solicited and
received updated reports from the dueling psychia-
trists—Dr. Bailey for the petitioner and Dr. Olive for the
state—and also heard testimony both from them and
from the petitioner. Olive had originally thought that the
petitioner might be malingering, but he no longer takes
that position and at argument the state’s lawyer said
that the state does not contend that Holmes is just pre-
tending to be crazy. Although Olive believes that Holmes
is competent to participate in the habeas corpus pro-
6 Nos. 04-3549, 06-2905
ceeding, our reading of the psychiatrists’ reports and
testimony and of Holmes’s latest testimony convinces
us otherwise. As is true of most insane persons, Holmes
is intermittently lucid. The problem is that he is very
rarely lucid when discussing his case. He is obsessed
with a fact that has no legal significance—namely that the
state had at one point moved to dismiss the charges
against him. It had later moved to withdraw the motion,
and Holmes has never been able to produce any evidence
that the original motion—the motion to dismiss the
charges against him—had been granted. To him, the
courts’ failure to have honored the dismissal of the
charges—as he is unshakably convinced occurred—is the
heart of the injustice done to him that justifies habeas
corpus relief. As he explained in earlier testimony, “so
when that prosecutor signed his signature on that matter
[presumably the motion to dismiss] saying it was true
everybody just—seemed like every court, the post-convic-
tion court, the Indiana Supreme Court, and then I got to
you, and everybody seemed to say that, well, I don’t see
that signature, I don’t see what happening on that docu-
ment . . . . So once he signed that signature it is my
belief that he believed what was entitled in the above
information structure. So it is handwriting which is in
pen, you know. If I forge a document, you know, not only
should I receive the death penalty at that point, but, you
know, maybe my hand should be cut off for that, as well.”
His obsession with the supposed dismissal of the
charges prevents him from engaging in sustained discus-
sion of any other aspect of the case, except in sporadic and
incomprehensible asides, mainly involving “automatic”
Nos. 04-3549, 06-2905 7
police perjury and what he calls the “mental retardation
issue,” which he says should not have been injected
into the case because his name had not been placed on a
list of mentally retarded inmates on death row that had
been given to the governor of Indiana. (He is not in fact
retarded.) A further impediment to his communicating
with his lawyers is that he considers himself to be
under continuous influence and sometimes assault by
supernatural beings. This is not merely an inference on
his part (after all, many normal people believe in super-
natural phenomena); he is convinced that he sees them.
He has testified that “they are in the cell with me. I see
like a little midget looking, a couple of them, one white
and one black. The little black one just beat me up, and
I wanted to throw some punches, but it is kind of like
a force field . . . . Even at the apex of their anger they
always come back because you levitate. You know,
because you levitate, and that is something they inter-
ested in.” In his most recent testimony he said: “I’ve
seen them, you know, with my eye, you know, the quick-
ness of them, how fast they are.”
He refuses to read most of the documents relating to
the case. One reason is that he believes that by doing so
he will enable the spirits to interfere with the habeas
corpus proceeding. “[I]f I thought about you [his lawyer],
whatever it is these spirits are, if they didn’t want me
to think about you, they, like, bit me on my—across—like
on my rib cage; and it damn near physically cracked
it down there.” Not that he’s sure the spirits mean him
ill. They refer to him as the Archangel Gabriel, and he
doesn’t know whether they’re serious in calling him that.
8 Nos. 04-3549, 06-2905
Another reason for his reluctance to read the legal
documents is his disappointment that the lawyers
and judges are not paying attention to the issue of the
dismissal of the charges, which he considers central. He
criticizes the state courts for failing “even [to] recognize
that the state prosecutor filed a motion to withdraw his
motion to dismiss.” He did read Dr. Bailey’s report—but
was disappointed that it did not mention the dismissal
of the charges.
Reading the transcript of Holmes’s most recent testi-
mony makes one’s head spin. He is preoccupied with
something that he calls the “cook bar” and believes to be
connected in some way with both the Ku Klux Klan and
the Indianapolis Police Department. No one can fathom
what he means by “cook bar” or what relation it has to
the case, although he seems to think it has a deep connec-
tion. He cannot be reasoned out of any of his crazy beliefs.
Dr. Bailey diagnosed him as schizophrenic. Dr. Olive
in his latest evaluation diagnosed Holmes as “suffering
from a mental disease, i.e., Personality Disorder NOS
(Antisocial and Paranoid Features).” PDNOS (Personality
Disorder Not Otherwise Specified) is the name given
to a personality disorder that does not fit any of the
categories into which the Diagnostic and Statistical Manual
of Mental Disorders sorts personality disorders. See Theresa
Wilberg et al., “A Study of Patients with Personality
Disorder Not Otherwise Specified,” 49 Comprehensive
Psychiatry 460 (2008); Thomas A. Widiger, “Personality
Disorders,” in A Guide to Assessments That Work 413 (John
Hunsley & Eric J. Mash eds. 2008); John M. Oldham,
“Personality Disorders,” 3 Focus: The Journal of Lifelong
Nos. 04-3549, 06-2905 9
Learning in Psychiatry 372, 377-78 (2005). It’s one of the most
common diagnoses of personality disorder, and persons
diagnosed with it are as likely as persons afflicted with
a named personality disorder to experience “considerable
impairment and distress.” Jeffery G. Johnson et al., “Ad-
verse Outcomes Associated with Personality Disorder
Not Otherwise Specified in a Community Sample,” 162
Am. J. Psychiatry 1926, 1931 (2005). Indeed “individuals
with personality disorder not otherwise specified may
be more likely than individuals with anxiety, depressive,
disruptive, or substance use disorders to experience
adverse outcomes.” Id. at 1930.
Yet Dr. Olive found “no evidence of mental disease . . .
that would compromise [Holmes’s] capacity to collabo-
rate with defense counsel.” He based this judgment on
Holmes’s conversation and particularly his ability to
give rational answers to such questions as what he
would do if he found a sealed, stamped, and addressed
envelope on the ground: he said he would put it in a
mailbox. (When Bailey asked Holmes the question about
the envelope on the ground, Holmes answered: “I would
look at it.”)
The ability to answer such questions rationally
does not show that Holmes is competent to engage in
lucid converse with his lawyers. “Sometimes people with
schizophrenia seem perfectly fine until they talk about
what they are really thinking.” National Institute of Mental
Health, “Schizophrenia” (2009), www.nimh.nih.gov/health/
publications/schizophrenia/schizophrenia-booket-2009.pdf
(visited Mar. 1, 2010). That describes Holmes. A sight, a
sound, that would elicit no reaction from a sane person
10 Nos. 04-3549, 06-2905
can separate a schizophrenic from his rational mind.
That is the meaning of schizophrenia. See American
Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV-TR), 298-302 (4th ed.
2000). (It does not mean “split personality.” Mayo Founda-
tion for Medical Education and Research, “Schizophrenia:
Definition” (Jan. 30, 2010), www.mayoclinic.com/health/
schizophrenia/DS00196 (visited Mar. 1, 2010); American
Psychiatric Association, “Schizophrenia” (2010),
healthyminds.org/Main-Topic/Schizophrenia.aspx (visited
Mar. 1, 2010).) Gertrude in Hamlet had it right when she
said: “Poor Ophelia / Divided from herself and her fair
judgment, / Without the which we are pictures, or mere
beasts.”
“Disorganized thinking (’formal thought disorder’) has
been argued by some to be the single most important
feature of Schizophrenia . . . . The [schizophrenic] may ‘slip
off the track’ from one topic to another (’derailment’ or
‘loose associations’); answers to questions may be
obliquely related or completely unrelated (’tangentiality’);
and, rarely, speech may be so severely disorganized that
it is nearly incomprehensible and resembles receptive
aphasia in its linguistic disorganization (’incoherence’
or ‘word salad’).” American Psychiatric Association, DSM-
IV-TR, supra, at 300. Again that sounds like Holmes.
Once in a while, it is true, even when he’s discussing
the case, the clouds part and there is a ray of sunshine,
as when, asked about the state’s invocation of res judicata
with regard to one of the habeas corpus claims, he
said: “The Government was, like, res judicata on a lot
Nos. 04-3549, 06-2905 11
of things. I think that means—I can’t remember res judi-
cata. I think it means didn’t raise it in time or waive it
or something to that effect. That’s usually the argument.”
Or when he said: “And if I remember the issues in my
case—I think I said it right—prosecutor misconduct, police
committing perjury, charges were dismissed and some
instruction issues. So that’s my understanding of my
case, you know, to my capacity.” That’s pretty lucid—but
note the reference to the supposed dismissal of charges.
Holmes’s mental condition might be improved by
antipsychotic drugs, but he refuses to take them and the
state seems unwilling to try to force him to. Maybe it
could, restrictive as is the standard that Indiana courts
apply in forced-medication cases:
In order to override a patient’s statutory right to
refuse treatment, the State must demonstrate by
clear and convincing evidence that: 1) a current and
individual medical assessment of the patient’s condi-
tion has been made; 2) that it resulted in the honest
belief of the psychiatrist that the medications will
be of substantial benefit in treating the condition
suffered, and not just in controlling the behavior of the
individual; 3) and that the probable benefits from
the proposed treatment outweigh the risk of harm to,
and personal concerns of, the patient. At the hearing,
the testimony of the psychiatrist responsible for
the treatment of the individual requesting review
must be presented and the patient may present con-
trary expertise.
Equally basic to court sanctionable forced medications
are the following three limiting elements. First, the
12 Nos. 04-3549, 06-2905
court must determine that there has been an evalua-
tion of each and every other form of treatment and
that each and every alternative form of treatment has
been specifically rejected. It must be plain that there
exists no less restrictive alternative treatment and that
the treatment selected is reasonable and is the one
which restricts the patient’s liberty the least degree
possible. Inherent in this standard is the possibility
that, due to the patient’s objection, there may be no
reasonable treatment available. This possibility is
acceptable.
In re Mental Commitment of M.P., 510 N.E.2d 645, 647-48
(Ind. 1987); see also G.Q. v. Branam, 917 N.E.2d 703, 708-09
(Ind. App. 2009); In re Commitment of J.B., 766 N.E.2d 795,
800 (Ind. App. 2002). The federal constitutional standard
is similar. Sell v. United States, 539 U.S. 166, 179-81 (2003);
Washington v. Harper, 494 U.S. 210, 221-27 (1990).
It would be distasteful to force someone to take drugs
in the hope that it would clear his way to being executed.
But whether this would be a decisive objection under
state or federal law we need not decide, since the state
isn’t trying to force Holmes to take antipsychotic drugs.
We are troubled by the district judge’s giving greater
weight to Dr. Olive’s evidence than to Dr. Bailey’s, al-
though the latter’s evaluation was defective too, for
Holmes’s lawyers either failed to explain to him, or he
simply failed to understand, that the issue is Holmes’s
competence to participate not in a murder trial but in a
habeas corpus proceeding. Still, Bailey’s diagnosis of
Holmes as suffering from schizophrenia, with symptoms
Nos. 04-3549, 06-2905 13
that include delusions and hallucinations that prevent
him from communicating meaningfully with his lawyers,
is compelling.
The judge noted Dr. Reinaldo Matias’s assessment, after
a brief interview, of Holmes as “demonstrat[ing] fair
judgment, realistic self-perception, logical thought pro-
cesses, average intelligence, and intact memory.” The
judge called him “Dr. Reinaldo” and referred to him as
a psychiatrist; he is a psychologist employed by the
prison system. The judge may not have noticed that
Dr. Matias also said that “having mental health get in-
volved with [Holmes] would be a good thing, but we
have to be very careful about this, especially in light of
the legal process that he is involved in . . . . I do not think
it is a good idea to get pulled into something that would
go against the state’s agenda with” Holmes. The state’s
agenda is to execute him and Dr. Matias is an employee
of the state.
Other remarks by the judge further undermine our
confidence in the accuracy of his finding that Holmes is
competent—for example, that “Holmes knows the dif-
ference between actual persons and the spirits he encoun-
ters.” Superstitious people are frightened of ghosts even
though they know that ghosts are not living human
beings—the supernatural character of ghosts makes them
more rather than less frightening than human beings.
The judge offered as a further indication of Holmes’s
competence a petition for habeas corpus that he filed
pro se—yet the sole issue raised in the petition was—no
surprise—the supposed dismissal of the charges against
him.
14 Nos. 04-3549, 06-2905
Holmes testified that his “mental state shouldn’t be
an issue.” If he is competent, he has by that statement
seemingly made a choice to go for broke—to obtain a
determination from us of the merits of his habeas corpus
action rather than allow the proceeding to be suspended
until such time as he is restored to sanity (a time that
no one expects ever to arrive). We do not think that he
is competent to make such a decision. He is deeply con-
fused, obsessed, and delusional. The evaluation by
Dr. Olive and the remarks of the district judge that we
have quoted cannot be reconciled with the evidence of
the 64-page transcript of Holmes’s most recent testi-
mony, along with the evidence of his earlier testimony.
The implication is profoundly unsatisfactory—that
Holmes is to be consigned to habeas corpus limbo indefi-
nitely—but we cannot come up with a satisfactory alterna-
tive. In contrast to this case, imagine a capital defendant
who has a slam-dunk habeas corpus claim that would not
merely get him a new trial, but an acquittal; but because
he is incompetent, he cannot communicate effectively
with his lawyers or they with him. The solution would
be the appointment of a guardian ad litem to decide for
the incompetent petitioner whether to proceed with the
habeas corpus action, see Harris ex rel. Ramseyer v. Wood, 64
F.3d 1432, 1434 n. 1 (9th Cir. 1995); Hedrick v. True, 2005 WL
1799730 (W.D. Va. July 27, 2005); Groseclose v. Dutton,
No. 03 C 0219, 609 F. Supp. 1432, 1434 (M.D. Tenn. 1985);
Indiana Rules of Professional Conduct, supra, Rule 1.14—
and the decision would be an easy one because there
would be no downside for the petitioner. The decision
in this case would be exceedingly difficult because the
Nos. 04-3549, 06-2905 15
guardian would have to predict the outcome of the habeas
corpus proceeding and weigh the risk of an adverse
outcome and ensuing execution against the prospect,
which most people would prefer (judging from the infre-
quency with which condemned persons abandon legal
proceedings or spurn commutation), of indefinite con-
finement on death row. See Rohan ex rel. Gates v. Woodford,
334 F.3d 803, 807, 816 (9th Cir. 2003).
With reluctance, we reverse the judgment with instruc-
tions to suspend the habeas corpus proceeding unless and
until the state provides substantial new evidence that
Holmes’s psychiatric illness has abated, or its symptoms
are sufficiently controlled, to justify the resumption of
the proceeding.
R EVERSED AND R EMANDED,
WITH D IRECTIONS.
4-2-10