In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3725
MELVIN NEWMAN,
Petitioner-Appellee,
v.
RICK HARRINGTON, Warden,
Respondent-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08-cv-04240 — Robert M. Dow, Jr., Judge.
ARGUED MAY 29, 2013 — DECIDED AUGUST 9, 2013
Before BAUER, WOOD, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Melvin Newman was convicted in
Illinois state court of first-degree murder of Andrew Dent and
sentenced to 47 years’ imprisonment. Following affirmance of
his conviction and sentence on direct appeal, Newman filed a
state post-conviction petition, asserting three grounds for
relief, only one of which is relevant here. The Illinois Court of
Appeals affirmed the circuit court’s dismissal of his petition,
2 No. 12-3725
with one justice dissenting, and Newman exhausted his state
court remedies. Newman filed a federal habeas petition under
28 U.S.C. § 2254, alleging that his trial counsel rendered
ineffective assistance in failing to investigate Newman’s fitness
for trial and failing to seek a fitness hearing. Newman contends
that the state court’s denial of his post-conviction petition
resulted in a decision that unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984) and its progeny. He also
argued that the state courts’ determinations of his fitness to
stand trial were unreasonable given the evidence presented in
the state court record.
The district court held an evidentiary hearing over several
days and determined on the basis of the state court record that
the state courts unreasonably concluded that Newman was not
prejudiced by his counsel’s failure to investigate his fitness to
stand trial and bring the issue of his fitness to the trial court’s
attention. The district court also found that counsel’s failures
to investigate known deficiencies in Newman’s mental capacity
and to raise the fitness issue with the trial judge constituted
ineffective assistance. Based on the entire record, including the
evidence presented at the federal habeas evidentiary hearing,
the district court determined that counsel’s “performance fell
below the constitutional minimum and that Newman was
prejudiced by his counsel’s performance because there is a
reasonable probability that Newman would have been de-
clared unfit to stand trial at a competency hearing.” Therefore,
the district court decided that Newman was being held in
custody in violation of federal law and granted Newman
habeas relief. The state appealed from that decision. Finding no
error, we affirm.
No. 12-3725 3
I. Background
A. Newman’s State Criminal Case
In July 2001, Andrew Dent was shot and killed. The day
after the shooting, the police went looking for Melvin
Newman, then 16 years old. Within a few days, Newman,
accompanied by his mother, Barbara Newman, turned himself
in to the police and was arrested for Dent’s murder. Newman’s
mother hired attorney Michael Johnson and during their first
conversation told him that her son was a “special child” who
attended a “school for the handicapped, the mental school.”
During their first meeting, she gave Johnson a two-inch-thick
stack of educational and psychological records reflecting
Newman’s lengthy history of severe mental and cognitive
deficits. The records included a diagnosis of mental retardation
from the Social Security Administration, a school psycholo-
gist’s report indicating that Newman’s IQ was 62, and an
Individualized Education Program report indicating that
Newman read at a first-grade level.
Newman’s case was tried by a jury in 2002. At trial,
Newman had two colloquies with the trial judge. The first
regarded his constitutional right to testify or not to testify. The
judge advised Newman that if he did not testify, the jury
would be instructed that they “should not draw any inference
from that whatsoever.” Newman’s only responses during the
colloquy were “Yes, sir” and “No, sir.” Toward the end of the
colloquy, the judge asked Newman, “And knowing all of this,
your constitutional rights to testify and not testify and having
discussed it with your mother and your attorney, what is your
wish?” Newman responded, “No, sir.” The judge restated the
4 No. 12-3725
question as “You don’t want to testify, is that correct?”
Newman again said, “No, sir.” The second colloquy concerned
whether Newman wanted a jury instruction on second-degree
murder. Again, Newman’s only responses to the judge’s
questions were “Yes, sir” and “No, sir.” Newman was con-
victed and sentenced to 47 years’ imprisonment. He appealed
to the Illinois Court of Appeals, which affirmed. People v.
Newman, No. 1-02-2615 (Ill. App. Ct. Mar. 31, 2004).
B. State Post-conviction Proceedings
The next year, Newman sought post-conviction relief in
Illinois state courts, raising his claim of ineffective assistance of
counsel. See 725 ILCS 5/122-1(a)(1). His petition was supported
by a wealth of evidence, including the 2005 report of Antoi-
nette Kavanaugh, Ph.D., a licensed clinical psychologist, who
opined that Newman had cognitive deficits, specifically that he
is moderately to mildly mentally retarded. She also opined that
Newman had been unfit to stand trial. Kavanaugh reported
that his “cognitive deficits are readily apparent” and “should
have been apparent to anyone who attempted to have a
conversation with [him] and posed questions to him that
required more than a yes or no answer.”
Kavanaugh’s report was based on two clinical interviews
with Newman over a two-week period in 2005, totaling about
five hours. She also administered a series of psychological tests
to Newman and reviewed his academic and psychological
records, including his petition for post-conviction relief and
exhibits. Intelligence testing revealed that Newman’s full scale
IQ was 54 and his intellectual abilities were in “the Extremely
Low Range.” His performance on word reading, mathematics
No. 12-3725 5
reasoning, reading comprehension, and listening comprehen-
sion placed him in the less than 0.1 percentile for each aca-
demic area. Specifically, Newman’s word reading skills were
equal to the average skills of a 7-year-old; his reading compre-
hension skills were equal to those of someone who is not yet 6-
years old; his listening comprehension skills were equal to
someone age 4 years and 8 months; and his mathematics
reasoning abilities were equal to those of a 5-year-old. Based on
his performance on a “Digit Span” test, Kavanaugh believed
that Newman was not feigning his cognitive deficits.
Kavanaugh also interviewed Newman’s mother and
Katherine Daphne Whitington, a reading specialist who had
worked with Newman one-on-one while he was at the
juvenile-detention center at the time of his trial. Whitington
advised Kavanaugh that Newman had “profound reading
disabilities” and couldn’t tell time. Whitington stated that he
“can’t deal with vaguely abstract concepts,” for example, he
didn’t know what “word” was. She said that “it was most
evident to [her] that [Newman] didn’t understand things …
when he was talking … about his case. He had no clue and it
was obvious that he had no clue.” Whitington also said that
Newman “has a horrible memory” and sometimes had
problems recalling what he did five minutes earlier. Newman’s
mother informed Kavanaugh that at the time of trial, Newman
could not write his name and was still wetting the bed.
Newman’s mother also reported that he did not ask her many
questions about what was going on in the case. When he did
ask questions, however, they suggested to her that he didn’t
understand why he was there and what was happening in
court.
6 No. 12-3725
Kavanaugh determined that Newman was not currently fit
to stand trial and would not have been fit to stand trial at the
time of the proceedings. She explained that he did not under-
stand basic legal concepts such as “witness” and “evidence”
and did not understand the roles of the state attorney, defense
attorney, judge, or jury. Kavanaugh observed that he “consis-
tently demonstrated difficulty retaining what he had been told
over the course of the evaluation related to fitness.” She
believed that his inability to recall information “would have
significantly interfered with his ability to assist in his defense
and [to] understand the nature and purpose of the proceed-
ings.” His lack of understanding of the proceedings was
evidenced by his failure to understand his sentence. She also
reasoned that his concrete and simplistic thinking prevented
him from making various legal decisions to assist in his
defense. Thus, in Kavanaugh’s clinical opinion, Newman could
not and was not able to assist in his own defense. Finally, she
did not think that he could be restored to fitness within one
year.
Newman’s post-conviction petition was supported by
numerous other records and affidavits, which reflected his
history of cognitive deficits. For example, a 1995 Social Security
Administration report found him eligible for disability benefits
due to mental retardation. A July 2000 Chicago Public Schools
psychological evaluation report indicated that Newman’s IQ
was 62 and that this along with his reading and math skills
ranked in the first national percentile. A 2003 psychological
report from Macon Corrections (within Menard Correctional
Center) stated that Newman’s IQ was 65 even though he put
forth his “best effort” during testing. The report also noted that
No. 12-3725 7
he could not tell time and had problems counting money and
making change. Special education teacher June Randall, who
taught Newman in 2000-2001, stated in her affidavit that
Newman was “a truly mentally retarded student” who “was
very slow to learn” and had “the most trouble understanding
complex or abstract concepts.” According to Randall, he
needed to have such concepts explained to him in “very
simple, concrete steps” or he would not grasp them. Similarly,
Whitington stated in an affidavit that in 2001 and 2002,
Newman was a “non-reader” with “memory problems” who
“struggle[d] to understand abstract concepts.” She added that
when she “spoke with Melvin about his case … it was obvious
that he did not know what was going on, especially when [she]
would ask him questions that required more than a ‘yes’ or
‘no’ answer.” Newman’s own affidavit signed in 2004 stated,
inter alia, that he had difficulties in school and that other kids
laughed at him when he could not answer the teacher’s
questions. Newman’s mother stated in an affidavit that before
trial she gave Johnson a stack of medical records, psychological
evaluations, and school evaluations, all regarding Newman’s
disability.
The trial court denied Newman’s petition without an
evidentiary hearing, and Newman appealed to the Illinois
Appellate Court. That court, with one dissenting justice,
affirmed. It concluded that Newman “has failed to demon-
strate that a bona fide doubt as to his fitness to stand trial
existed at the time of trial.” People v. Newman, No. 1-06-1977,
slip op. at 10 (Ill. App. Ct. Sept. 4, 2007). The state appeals court
briefly (and selectively) mentioned a few of the exhibits
attached to Newman’s post-conviction petition: 1998 and 1999
8 No. 12-3725
psychiatric assessments from Hartgrove Hospital; the Chicago
Public Schools July 2000 psychological evaluation report; the
2003 psychological report from Macon Corrections; a July 2002
social investigation by the juvenile-court probation officer; and
Kavanaugh’s report. The court found that Newman’s allega-
tions “[a]t most … establish[ed] that he has limited intellectual
ability, but do not speak to his fitness to stand trial.” Id. at 9. It
also found that the record “do[es] not indicate that [Newman]
was anything other than academically challenged and a slow
learner,” and “does not indicate that his demeanor during trial
was inappropriate, and at all times he responded appropriately
to questioning by the trial court.” Id. at 10. In making these
determinations, the court concluded that Kavanaugh’s report
was “irrelevant in terms of considering whether [Newman]
was unfit at the time of trial because the evidence must be
considered in light of the facts known at the time of trial.” Id.
at 11. The court only addressed prejudice; it did not address
whether counsel’s performance was deficient.
C. Federal Habeas Proceedings
Following the denial of his state petition for post-conviction
relief, Newman filed a federal habeas petition under 28 U.S.C.
§ 2254 in the district court. The district court held an eviden-
tiary hearing over several days in early 2011 at which
Newman, Johnson, Newman’s mother, Whitington,
Kavanaugh, and the state’s expert, psychiatrist Stafford Henry,
among others, testified.
Whitington testified that when Newman approached her
for help with reading while he awaited trial in 2001, he “could
not read at all” and he could recognize “some letters but not
No. 12-3725 9
consistently.” Whitington worked with Newman about 45 to
60 minutes per day, five days a week, year round, yet
Newman’s progress was slow. He retained “very little” of
what she taught him. “[T]hings that he seemed to have
mastered the day before, he would have forgotten by the next
day.” His progress “was slower than that of “almost any other
student” of Whitington’s. At the time of his conviction in 2002,
Newman read only at the kindergarten level. When
Whitington tried to talk with him about basic abstract concepts,
he “would get lost.”
Daniel Dillon, a 25-year special education teacher who
taught Newman at the juvenile-detention center “testified
credibly,” according to the district court, that Newman was
“one of the lowest students” that he had ever taught. Newman
worked hard to learn but nonetheless after one year he still
could not read, spell a four-letter word, or write a sentence
without copying it. Dillon stated that when Newman learned
basic things like how to spell “cat,” he would immediately
forget them. The last day of class, Newman said, “I wish you
would put the ABCs on the board because I don’t know my
ABCs”—Dillon had not heard anyone say that before. Based on
their daily interactions in 2002, Dillon did not believe that
Newman was able to understand concepts like “constitutional
right to testify,” “inference,” “consulting,” and “second degree
murder jury instruction”—even if they were explained to him.
A special-education teacher at Menard Correctional Center,
Jerry South, testified that in 2004, Newman was illiterate and
could not tell time or do basic arithmetic. South agreed with a
Department of Corrections’ educational assessment of
Newman as mentally retarded. According to South, Newman
10 No. 12-3725
had made “substantial progress” in class at Menard such that
in 2008 he was he was reading at a sixth-grade level.
Newman’s mother testified that before trial, she handed
Johnson a 5-inch stack of papers on her son’s mental disability,
including the documents attached to the state-court post-
conviction petition. When asked how high the stack of papers
she had collected on Newman’s disability and given to Johnson
was, the record reflects that she said, “About like this” and
made a gesture indicating the height. Counsel stated that she
demonstrated a height of about 5 inches, and the court said,
“Looks right to me.” However, the court apparently gave the
state the benefit of any doubt as to exaggeration of the thick-
ness of the papers and found that Newman’s mother gave
Johnson a 2-inch thick stack of records. Newman’s mother also
stated that Newman’s disability is that he is “retarded” and she
“hate[s] that word.” She prefers to call him “special.” She
testified about the problems Newman had in school and in
learning to read. The district court found that many of the facts
about which she testified were corroborated by independent
sources, although it viewed her testimony with caution because
she was Newman’s mother.
Newman also testified at the evidentiary hearing. Based on
the “opportunity to observe [him] in person during the
evidentiary hearing—and especially during his testimony,” it
was evident to the district court that “Newman’s mental acuity
is noticeably lower than any other witness who has testified at
any proceeding over which the undersigned judge has pre-
sided.”
No. 12-3725 11
Johnson testified that at the time of Newman’s trial, he
represented as many as 75 clients. Johnson said that when he
began reviewing the documents Newman’s mother had given
him, he had “some concerns” that Newman might be unfit. But
after reviewing everything and talking to Newman, he “no
longer had those concerns.” In Johnson’s opinion, Newman’s
problem was either attention deficit disorder (ADD) or
attention deficit hyperactive disorder (ADHD), which was
causing him difficulty in intelligence testing. Johnson claimed
that Newman assisted him in preparing for trial by identifying
photographs of his neighborhood. Johnson believed that
Newman’s Global Assessment Functioning (GAF) score of 55
out of 100 was “not bad” and “pretty good.” However,
according to Kavanaugh, that score reflects “significant
impairment” and is typical of someone with mental retarda-
tion. Johnson also testified that he thought Newman was fit
because Hartgrove Hospital records did not indicate a concern
with a mental impairment or mental retardation and he knew
Newman had been enrolled in the Lincoln’s Challenge pro-
gram, which Johnson believed would not accept mentally
retarded kids. (Newman’s mother had filled out her son’s
application to the program; she did not indicate that he was
retarded.)
Kavanaugh testified at the evidentiary hearing consistent
with her report that Newman had been unfit to stand trial in
2002. In contrast, a psychologist hired by the state in 2010,
Stafford Henry, testified that Newman was fit to stand trial. In
his view, Newman understood the nature and purpose of the
proceedings against him. This was based on the fact that
Newman knew he had a lawyer whose job was to help him;
12 No. 12-3725
Newman had said “the guys in suits were against me” and
were “mean to me”; and Newman was aware that “the judge
was present at trial, that he is in charge of the courtroom.”
Kavanaugh, however, testified that this indicates only that
Newman was reporting what he saw in the courtroom, not that
he actually understood what was happening. Henry also
concluded that in 2002 Newman was able to assist in his own
defense. This opinion was based on a claimed lack of evidence
of a cognitive defect to the contrary, and Newman’s statement
that he spoke with his lawyer and said “he didn’t do it,” as
well as Johnson’s deposition testimony that he went over
aspects of the case with Newman and had no difficulty
communicating with him. Henry thought Newman was
malingering. He interviewed Newman only once and for less
than two hours. Henry did not administer any tests and he did
not interview anyone who knew Newman at the time of trial.
Nor did he offer any reason for disregarding the numerous
reports that clearly indicated Newman had a history of serious
mental deficits.
The district court granted the petition, finding that the state
appellate court had unreasonably determined the facts and
unreasonably applied Strickland in holding that Newman had
not shown prejudice from counsel’s ineffectiveness. The district
court also determined that Newman was in custody in viola-
tion of the Constitution or laws of the United States based on
his satisfaction of both prongs of Strickland: (1) Johnson’s
performance was deficient when he failed to conduct a further
investigation and seek a fitness hearing; and (2) crediting
Kavanaugh’s testimony over Henry’s, Newman proved there
No. 12-3725 13
was a reasonable probability that he would have been found
unfit to stand trial. The state appealed.
II. Discussion
The state argues that in finding that the Illinois appellate
court unreasonably applied Strickland and unreasonably
determined the facts, the district court failed to accord appro-
priate deference to the state court’s decision and erroneously
evaluated the state court’s judgment denying post-conviction
relief. We disagree. The district court was appropriately
deferential to the state court’s determinations. Nonetheless, the
state record contains compelling evidence that the state court’s
denial of post-conviction relief involved an unreasonable
application of Strickland and was based on an unreasonable
determination of the facts. The state also contends that
Newman is not entitled to habeas relief. We disagree with that
position as well: Johnson’s failure to investigate Newman’s
fitness and request a fitness hearing was constitutionally
deficient, and based on the entire record, there is a reasonable
probability that Newman would have been found unfit to
stand trial.
When reviewing the district court’s decision on a habeas
petition, we review its factual findings for clear error and its
legal conclusions de novo. Crockett v. Hulick, 542 F.3d 1183,
1188 (7th Cir. 2008). Where a state court adjudicated the
petitioner’s claim on the merits, the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) prohibits a federal court
from granting habeas relief unless the state-court adjudication
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
14 No. 12-3725
determined by the Supreme Court of the United States” or
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence” before the
state court. 28 U.S.C. § 2254(d)(1)–(2). A federal court’s review
of a state court’s decision under § 2254(d) is limited to the
record before the state courts. See Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011). Newman contends that the state court’s
adjudication resulted in a decision that involved an unreason-
able application of clearly established federal law and was
based on an unreasonable determination of fact.
Federal habeas courts are generally “limited to a deferential
review of the reasonableness, rather than the absolute correct-
ness, of a state court decision.” Mosley v. Atchison, 689 F.3d 838,
844 (7th Cir. 2012) (citation omitted). Under § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Harrington v. Richter, 131
S. Ct. 770, 785 (2011) (quotation and citation omitted). “A state
court decision is an ‘unreasonable application of … clearly
established Federal law’ when the court applied Supreme
Court precedent in ‘an objectively unreasonable manner.’”
Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013) (quoting
Brown v. Payton, 544 U.S. 133, 141 (2005)). A “state prisoner
must show that the state court’s ruling on the claim … was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.
Under § 2254(d)(1), “we presume that the courts’ factual
determinations are correct unless [Newman] rebuts the
presumption by clear and convincing evidence.” Taylor v.
Grounds, No. 12-2632, 2013 WL 3336716, at *7 (7th Cir. July 3,
No. 12-3725 15
2013) (citing 28 U.S.C. § 2254(e)(1)). This standard is demand-
ing, but not insurmountable. Id. As for § 2254(d)(2), federal
courts conclude that a state court decision was based on an
unreasonable determination of the facts “if it rests upon fact-
finding that ignores the clear and convincing weight of the
evidence.” Id. (quotation and citation omitted).
Newman’s ineffective-assistance-of-counsel claim is
analyzed under Strickland’s familiar two-part test. First,
Newman “must show that counsel’s performance was defi-
cient,” Strickland, 466 U.S. at 687, that is, it “fell below an
objective standard of reasonableness,” id. at 688. Courts
“indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id. at 689. Newman also must show that counsel’s deficient
performance prejudiced his defense, that is, his “errors were so
serious as to deprive [Newman] of a fair trial, a trial whose
result is reliable.” Id. at 687. Under this test, Newman “must
show that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the out-
come.” Id. When a habeas petitioner challenges a state court’s
application of Strickland under § 2254(d), our review is
“doubly” deferential. Harrington, 131 S. Ct. at 788.
“‘Counsel has an obligation either to investigate possible
defenses or make reasonable decisions that particular investi-
gations are unnecessary.’” Warren, 712 F.3d at 1100 (quoting
Burt v. Uchtman, 422 F.3d 557, 566 (7th Cir. 2005)). The test for
fitness or competency to stand trial is “whether [the defendant]
16 No. 12-3725
has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he
has a rational as well as factual understanding of the proceed-
ings against him.” Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam). This standard comports with the standard
under Illinois law. See 725 ILCS 5/104-10 (“A defendant is
presumed to be fit to stand trial … [and] is unfit if, because of
his mental or physical condition, he is unable to understand the
nature and purpose of the proceedings against him or to assist
in his defense.”). Where, as here, a petitioner alleges ineffective
assistance because of counsel’s failure to investigate and
request a fitness hearing, “‘we have interpreted the Strickland
prejudice inquiry as asking whether there is a reasonable
probability the defendant would have been found unfit had a
hearing been held.’” Warren, 712 F.3d at 1100 (quoting Burt, 422
F.3d at 567); see also People v. Johnson, 794 N.E.2d 294, 306 (Ill.
2002) (“To establish the prejudice prong of the Strickland test,
a defendant must show that the facts that would have raised a
bona fide doubt of his fitness for trial existed at the time of his
trial … .” (citations omitted)). Thus, to prevail under § 2254(d),
Newman must show that the state court’s determination that
there was no reasonable probability of a different result was
unreasonable. See Harrington, 131 S. Ct. at 785, 792.
A. The State Court Unreasonably Applied Strickland
Newman alleges that his trial attorney Johnson rendered
ineffective assistance when he failed to investigate an obvious
issue regarding Newman’s fitness to stand trial and failed to
request a fitness hearing. The Illinois appellate court did not
address Strickland’s performance prong but concluded that
No. 12-3725 17
Newman could not establish prejudice because he could not
raise a bona fide doubt that he was unfit to stand trial. In doing
so, the state court deemed Kavanaugh’s report “irrelevant in
terms of considering whether [Newman] was unfit at the time
of trial because the evidence must be considered in light of the
facts known at the time of trial.” This determination is an
unreasonable application of Strickland under § 2254(d)(1).
The fact that Kavanaugh’s clinical evaluation of Newman
occurred three years after his trial does not render her report
irrelevant. We have said that “the mere passage of time may
not make [a retrospective competency hearing] meaningless.
The passage of even a considerable amount of time may not be
an insurmountable obstacle if there is sufficient evidence in the
record derived from knowledge contemporaneous to trial.”
United States ex rel. Bilyew v. Franzen, 842 F.2d 189, 193 (7th Cir.
1988) (alteration in original) (quotation and citation omitted).
A state court’s decision that completely disregards an expert’s
opinion as to the defendant’s fitness at the time of trial involves
an unreasonable application of the Strickland standard. See
Burt, 422 F.3d at 570 (state court failed to mention expert’s
opinion that defendant did not comprehend legal advice and
completely disregarded another expert’s opinion that defen-
dant’s history warranted a competency hearing).
As Newman notes, for persons like him, who suffer from
chronic mental disorders, retrospective evaluations are
particularly appropriate “because there is more likely to be
considerable documentation of their mental functioning over
time.” Robert D. Miller & Edward J. Germain, The Retrospective
Evaluation of Competency to Stand Trial, 11 Int’l J.L.& Psychiatry
18 No. 12-3725
113, 122 (1988). The state court apparently overlooked that
Kavanaugh’s report was retrospective—she opined as to
Newman’s fitness at the time of trial as well as at the time she
met with him. Furthermore, Kavanaugh’s opinion was based
in part on her interviews of people who knew Newman well at
the time of trial and could provide information regarding his
abilities and fitness at that past, critical time. Kavanaugh
considered facts known at the time of trial such as Newman’s
extensive educational and psychological records as well. The
state speculates that it is difficult to tell how Newman’s mental
state might have been affected by three years of incarceration,
but Kavanaugh concluded that her view of Newman’s then-
current mental abilities was consistent with records and
evidence regarding his abilities and deficits at the time of trial,
and indeed, even before that time.
The state suggests that Newman may have presented
himself in a light that would increase his hopes of having his
conviction overturned. However, “a defendant cannot readily
feign the symptoms of mental retardation.” People v. Shanklin,
814 N.E.2d 139, 144 (Ill. App. Ct. 2004). Kavanaugh tested
Newman for malingering and concluded that he was not. In
addition, her consultation with Newman’s mother and former
teacher Whitington convinced her that his presentation was
consistent with his past behavior. Further, a comparison of
Kavanaugh’s evaluation of Newman and his abilities demon-
strates consistency with the numerous school and psychologi-
cal reports on Newman gathered over the years. It would be
unreasonable to think that Newman began faking symptoms
of mental retardation before he was 11-years-old, leading to the
creation of documentation 2-inches thick reflecting his mental
No. 12-3725 19
deficits just to “use his manufactured retardation to confuse the
justice system.” Id.
Kavanaugh’s expert opinion was well-supported and
relevant. It was consistent with the numerous reports from
psychological and educational experts over many years (about
a decade) leading up to trial and after. The state appellate
court’s decision to find Kavanaugh’s report irrelevant was an
unreasonable application of Strickland.
B. The State Court Made an Unreasonable Determination of the
Facts
In addition, the state court’s decision to deny Newman’s
post-conviction petition was based on an unreasonable
determination of the facts in light of the state-court record. The
state court unreasonably determined that Newman was
nothing “other than academically challenged and a slow
learner.” This factual determination is quite troubling. It
ignores Kavanaugh’s expert report and most of the other
evidence in the record that establishes that Newman’s cogni-
tive deficits run far deeper than that. Indeed, the clear and
convincing evidence demonstrates that Newman is mentally
retarded. By ignoring Kavanaugh’s key expert evidence that
Newman was moderately to mildly mentally retarded, the
state appellate court’s application of Strickland was unreason-
able and its factual determinations as to Newman’s mental
limitations and fitness were also unreasonable. See, e.g., Julian
v. Bartley, 495 F.3d 487, 494 (7th Cir. 2007) (state court’s factual
determination was against the clear and convincing weight of
the evidence where it ignored key evidence). The state replies
that the state court did not “ignore” the report, but simply
20 No. 12-3725
chose not to rely on it. This is a distinction without a difference,
and the state court’s rationale for disregarding the report does
not withstand scrutiny even under our deferential review.
We fail to see how Kavanaugh’s opinion that Newman was
not fit to stand trial in 2005 or in 2002 and that he would not be
restored to fitness within one year from the time of trial was
undercut by Newman’s 2004 affidavit, stating that he was
“starting to understand” the legal concepts about which the
trial court had questioned him. Putting aside the fact that it
was not until 2004—three years after trial—that Newman was
“starting to understand” legal concepts (it is unsurprising that
even a mentally retarded person would make some intellectual
progress over time), the state fails to appreciate the difference
between beginning to understand an abstract concept and
actually comprehending it. Besides, in his affidavit, Newman
repeatedly asserts that he “did not understand” concepts such
as “the difference between first- and second-degree murder”
and that he “did not really understand what was happening at
the trial.” He also states that “if I understood … [some of the
words used during the trial] better at the trial I would have
been able to understand the questions that the judge asked
me.” These statements in Newman’s affidavit actually weaken
the state’s position that the affidavit undercuts Kavanaugh’s
opinion that Newman would not be restored to fitness within
one year.
The state argues that the state-court record demonstrated
that Newman was “an angry, disobedient, violent teenager
whose difficulties with learning stemmed from chronic
truancy, learning disabilities, and his refusal to try.” Notwith-
No. 12-3725 21
standing any other problems Newman may have had, the fact
remains that clear and convincing evidence in the state court
record establishes that Newman is mentally retarded and his
mental retardation adversely affected his fitness to stand trial.
The state also ignores the evidence in the record supporting the
conclusion that at least some of these other problems were
caused by Newman’s significant cognitive deficits. As noted in
the July 2000 social assessment by the Chicago Public Schools,
teachers reported that “most of [Newman’s] behavior concerns
were initiated by his inability to read and complete assign-
ments (i.e. difficulty learning new things, easily frustrated with
both home and school work … and disrupting the class to
avoid doing classroom assignments).” And notwithstanding
his frustrations with his inability to perform academically,
most of the trained professionals, psychologists and teachers,
reported that Newman “put forth his best effort” and “worked
hard.”
The problem is not that the state court failed to cite the
exact documents that the district court cited, or that the state
court did not discuss a particular piece of evidence, or even “a
good deal of the evidence” that supports Newman’s claim. Cf.
Price v. Thurmer, 637 F.3d 831, 839 (7th Cir. 2011) (stating that
Harrington “precludes [a federal habeas court from] inferring
error from the [state] court’s failure to discuss particular pieces
of evidence”). Rather, here, as in Burt, the state court’s analysis
“ignored a wealth of evidence that established a reasonable
probability [Newman] would have been found [unfit] to stand
trial had a hearing been held. 422 F.3d at 570 (citing Eddmonds
v. Peters 93 F.3d 1307, 1317 (7th Cir. 1996)). Indeed, the state
court ignored the clear and convincing weight of the evidence,
22 No. 12-3725
resulting in a decision based on an unreasonable determination
of the facts. See, e.g., Julian, 495 F.3d at 494.
We highlight just some of that evidence here. The state
court completely ignored the Social Security Administration’s
determination in 1995 that then-11-year-old Newman was
eligible for benefits on the basis of mental retardation. The state
court also completely ignored the Randall affidavit, which
corroborates the diagnosis of mental retardation and confirms
Newman’s limitations in understanding abstract concepts.
Whitington’s affidavit, which also describes Newman’s
limitations with abstract concepts, specifically states that it was
“obvious that he did not know what was going on” with his
criminal murder case. As noted, Randall taught Newman
special education in 2000–2001 and Whitington taught him in
2001, so their observations and assessments are contemporane-
ous to the trial. Furthermore, the state court failed to mention
that the Individualized Education Program (“IEP”) created in
2000 for Newman indicated that he demonstrated difficulties
in all but two of the learning characteristics. These included
“processes information slowly,” “has a short auditory attention
span,” and “had difficulty understanding concepts.” The IEP
recommended all but one of the listed accommodations,
including “explain directions and give concrete examples,”
“test one concept at a time,” and “provide visual aids.”
The state court also unreasonably determined that Newman
“at all times … responded appropriately to questioning by the
trial court.” First, the evidence establishes that “yes, sir” and
“no, sir” were the extent of Newman’s responses to the trial
court’s questioning. He never gave more than a two-word
answer and his simplistic answers do not suffice to show that
No. 12-3725 23
he understood the questions regarding his defense rights. And
Newman’s responses to the trial court’s questioning were not
at all times appropriate. During one colloquy the trial judge
asked Newman if he understood his constitutional rights to
testify and not to testify, and asked “knowing all of this …
what is your wish?” Newman responded, “No, sir.” This
nonresponsive answer lends support to the conclusion that
Newman was unable to understand the proceedings against
him and assist in his defense.
In sum, the state court’s denial of Newman’s petition was
based on an unreasonable determination of the facts in light of
the evidence presented. The state court did not address
Strickland’s first prong—deficient performance. Thus, as the
state concedes, the district court properly evaluated that prong
de novo, and it found that Johnson’s performance in failing to
investigate Newman’s fitness and seek a fitness hearing was
constitutionally deficient. See Quintana v. Chandler, No. 12-3125,
2013 WL 3800289, at *3–4 (7th Cir. July 23, 2013). We will
address the performance prong in the next section, well aware
that the § 2254(d) issue is based only on the record before the
state court, but the question of whether Newman is entitled to
habeas relief also takes into account the evidence presented at
the evidentiary hearing before the district court. See Mosley, 689
F.3d at 841–42, 853–54.
C. The District Court Correctly Determined that Newman is
Entitled to Habeas Relief
Having decided that the state court’s decision denying
post-conviction relief violated § 2254(d)(1) and (2), we assess
whether the district court correctly determined that Newman
24 No. 12-3725
is entitled to habeas relief. See Mosley, 689 F.3d at 853 (noting
that there are two separate inquiries under § 2254(d) and
§2254(a)); see also Quintana, 2013 WL 3800289, at *3 (“Although
a state court decision that stems from an unreasonable applica-
tion of federal law will usually meet § 2254(a)’s requirement …
this court will engage in de novo review after a finding of
unreasonableness to answer the 2554(a) question as if the state
court never reached the merits.”). We, like the district court,
consider the evidence presented at the federal evidentiary
hearing. See Quintana, 2013 WL 3800289, at *3.
The state argues that Newman failed to show that counsel’s
performance was deficient or that, had counsel requested a
fitness hearing, there was a reasonable probability that
Newman would have been found unfit to stand trial. Yet even
if we were to consider only the evidence in the state-court
record, we would conclude that trial counsel’s performance in
failing to investigate Newman’s fitness and seek a fitness
hearing was constitutionally deficient and prejudiced
Newman. The evidence adduced at the federal evidentiary
hearing further corroborates that conclusion.
Very early in the criminal proceedings, Newman’s mother
handed Johnson a two-inch stack of psychological and educa-
tional records concerning Newman’s history of cognitive
deficiencies. The records included a diagnosis of mental
retardation from the Social Security Administration; a Chicago
Schools psychological evaluation indicating that Newman’s IQ
was 62 and that this score as well as his reading and math skills
ranked in the first percentile nationally; and an IEP report
indicating that Newman read at a first-grade level despite
being sixteen years of age. Furthermore, the evidence estab-
No. 12-3725 25
lishes that Newman’s cognitive limitations would have been
apparent to Johnson from interacting with Newman.
Kavanaugh testified that Newman’s deficits would have been
obvious, and Whitington stated that it was evident that he did
not understand what was going on with is criminal case—“He
had no clue and it was obvious that he had no clue.” The
district court even found Newman to have the least mental
acumen of any witness that had testified before it. Johnson’s
failure to investigate the apparent problems with Newman’s
mental condition and fitness for trial constitutes deficient
performance under Strickland. See Burt, 422 F.3d at 568–69
(“The failure by defense counsel to investigate apparent
problems with a defendant’s mental health may be deficient
performance as defined by the first prong of Strickland.”
(citations omitted)); Brown v. Sternes, 304 F.3d 677, 692 (7th Cir.
2002) (“[W]here it will be apparent … from conversation with
the defendant, or from other sources of information not
requiring fresh investigation, that the defendant has some
mental or other condition that will repay further investigation
… then the failure to investigate will be ineffective assistance.”
(quotation and citation omitted)).
According to the state, however, the district court erred in
assuming, without supporting evidence, that Johnson did not
spend enough time with Newman to assess his mental state or
perform the basic investigation necessary to determine
whether to request a fitness hearing. But the district court did
not simply assume this fact; the court drew this reasonable
inference from the evidence. This evidence included
Kavanaugh’s testimony that Newman’s deficits would have
been obvious, the stack of records demonstrating his mental
26 No. 12-3725
deficiencies (a review of which we agree would raise red flags
about Newman’s fitness for trial), the high volume of cases that
Johnson was handling at the time of Newman’s trial, and the
lack of any notes or specific recollection by Johnson to show
what investigation he may have conducted. The record simply
does not bear out the state’s claim that “[t]he amount and
extent of the information that Johnson received from
[Newman] further supports Johnson’s testimony that he met
with [Newman] extensively.”
The state argues that Johnson had represented a number of
defendants with mental deficits similar to Newman’s and was
thus qualified to determine whether Newman understood him
and the nature of the proceedings. However, the evidence is
that Johnson thought a GAF score of 55 was “pretty good”; it
isn’t. The expert evidence establishes that such a score reflects
“significant impairment” and is typical of someone with
mental retardation. Similarly, Johnson’s belief that Newman
suffered from ADD or ADHD and was not mentally retarded
runs head on into the wealth of evidence in the record that
Newman was and is mentally retarded.
Furthermore, the evidence supports the reasonable infer-
ence that the conversations Johnson had with Newman would
not have calmed concerns about Newman’s fitness. Identifying
a few houses in one’s neighborhood is not the kind of assis-
tance that demonstrates fitness. And, contrary to the state’s
representation that Newman identified witnesses for Johnson
(other than Newman’s girlfriend’s brother whom Johnson
determined wouldn’t help but would hurt the defense), it was
Johnson who identified the state witnesses for Newman and
explained to him what they were going to say. Hr’g Tr. 515 (“I
No. 12-3725 27
would explain to him and tell him what the witnesses were
going to say, who the witnesses were …”) The state criticizes
Newman, who is mentally retarded, and his mother for not
telling Johnson that Newman did not understand what was
happening. Even assuming they did not, as noted, it should
have been clear to Johnson that Newman did not understand
the proceedings against him. Newman’s inability to respond
appropriately to the trial court’s questioning about his consti-
tutional rights to testify or not to testify is yet one example of
how Newman did not understand what was going on around
him. An inability to understand this basic constitutional right
further suggests that Newman was unable to assist in his own
defense.
Johnson’s knowledge that Newman had a prior juvenile
conviction (resulting from a guilty plea) and had been admit-
ted to the Lincoln Challenge program was insufficient to
alleviate any concerns as to Newman’s fitness. Johnson didn’t
know the particulars of the prior juvenile case, including
whether there had been a concern over Newman’s fitness at
that time. If Newman simply had been asked yes/no questions
in his juvenile case, his lack of understanding of the proceed-
ings could have been overlooked. In any event, the question
facing Johnson was whether Newman was fit at the time of
Johnson’s representation in the murder case. Even if Johnson
understood that the Lincoln Challenge program would not
accept a mentally impaired individual, there is no evidence
that he knew whether or not the program had been informed
that Newman was mentally retarded. (A review of the applica-
tion to the program would reveal that Newman’s mother did
not state that he had a mental handicap.)
28 No. 12-3725
The state maintains that the district court did not afford
counsel the presumption of competence. That is incorrect. But
the presumption only goes so far. When the evidence over-
whelmingly establishes that counsel should have investigated
Newman’s fitness to stand trial and raised the issue with the
trial court, but failed to do so, the presumption is rebutted.
Johnson’s testimony that obtaining a fitness examination was
a relatively easy process weighs against any argument that his
failure to request a fitness examination was effective assistance.
We agree with the district court that Johnson had a duty to
investigate the obvious problems with Newman’s mental
condition and fitness for trial and a duty to request a fitness
hearing. Thus, his failure to do so constitutes deficient perfor-
mance under Strickland.
As for Strickland’s prejudice prong, the state argues that the
state-court record shows that there was no reasonable proba-
bility that the Illinois courts would have found Newman unfit.
To be sure, Newman’s low IQ alone might not show him to
have been unfit. But as Kavanaugh explained, his mental
abilities (or deficits) could contribute to a lack of fitness.
Moreover, as our prior discussion of the record demonstrates,
the wealth of evidence, including Kavanaugh’s report and
testimony, establishes that at the time of trial Newman could
not understand the nature and purpose of the proceedings
against him.
The state argues that the district court erred in crediting
Kavanaugh’s opinions over Henry’s. It challenges her experi-
ence, as compared to his. But the district court properly
weighed the testimony and we find no clear error in its
decision to credit her testimony. As noted, Kavanaugh’s
No. 12-3725 29
evaluation of Newman’s fitness was based on two interviews
that totaled about five hours. She reviewed the numerous
records and reports regarding Newman’s mental limitations
and she consulted others who had contact with him at the time
of trial. She performed several tests on Newman as well,
including the “Digit Span” test to assess him for malingering.
Henry, in contrast, did none of these things and interviewed
Newman only once. And that interview occurred more than
eight years after his trial, whereas Kavanaugh interviewed
Newman three years after trial. Henry’s view that Newman
was malingering is the only such opinion in the record. Over
and over, teachers and psychologists such as South stated their
belief that Newman had severe cognitive limitations and,
despite them, gave his best effort. The state maintains that
Kavanaugh had an erroneous view of the fitness standard, but
both her written report and testimony at the evidentiary
hearing dispel any such concern. And her opinion that
Newman could not understand the proceedings against him
was consistent with Whitington’s and South’s testimony. In
addition, Kavanaugh explained that Henry’s opinion that
Newman understood the proceedings was based on Newman’s
testimony about what he had seen rather than on an under-
standing or appreciation of the roles of trial participants, the
judge, attorneys, witnesses, and jury.
The state, like the appeals court, points to the juvenile-
investigation report, which does not indicate that Newman had
any difficulty answering questions but contains statements
from his mother that suggest he was fit. But this is just one
assessment among many others that suggest that Newman had
difficulties with comprehension and fitness issues. Further,
30 No. 12-3725
Newman’s situation is unlike that of the petitioner in Young v.
Walls, 311 F.3d 846 (7th Cir. 2002). Like Newman, Young had
serious mental deficits including a low IQ. However, Young
had a greater ability to understand the proceedings against
him. See id. at 849–50 (noting that Young knew that a “PD” was
a public defender and knew the purpose that a trial serves).
Not only did the evidence establish that at the time of trial
Newman could not understand the nature and purpose of the
proceedings against him, it also established that he could not
assist in his own defense. The meager assistance that Johnson
says Newman gave him, such as identifying houses in his
neighborhood and identifying his girlfriend’s brother as a
possible witness (one whom Johnson believed wouldn’t help
but would hurt the defense), does not constitute meaningful
assistance. See Dusky, 362 U.S. at 402 (“[I]t is not enough for …
the defendant … [to have] some recollection of events … .”). A
defendant’s role in assisting counsel in his own defense is to
“recognize and relat[e] relevant information to counsel and
make the few trial-related decisions reserved for defendants
(i.e., whether to plead guilty, whether to request a jury trial,
whether to be present at trial, and whether to testify).” Watts v.
Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996); see also United
States v. Salley, 246 F. Supp. 2d 970, 979–80 (N.D. Ill. 2003)
(finding defendant who “lacks the competence to make
rational choices about fundamental decisions such as whether
to waive his right to counsel, to plead guilty, to confront the
witnesses against him through cross-examination, or to testify
in his own defense” is unable to assist properly in his defense
and is mentally incompetent).
No. 12-3725 31
The evidence established that Newman was unable to make
decisions about his fundamental rights. He did not understand
the role of the jury; thus, he could not make a rational choice
about whether to request a jury trial. Testimony from
Kavanaugh and Dillon as well as Newman’s own unresponsive
answer during the colloquy with the trial judge support the
conclusion that Newman could not understand the meaning of
a constitutional right, including his constitutional right to
testify or not to testify. It is evident that a defendant that does
not understand his fundamental rights cannot make rational
decisions about those rights.
Johnson’s failure to investigate Newman’s fitness and
request a fitness hearing was constitutionally deficient. Had
Johnson investigated and requested a fitness hearing, there is
a reasonable probability that Newman would have been found
unfit had a hearing been held. Accordingly, Newman is
entitled to habeas relief.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of Newman’s habeas petition.