In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3282
FREDRICK A. LAUX,
Petitioner‐Appellant,
v.
DUSHAN ZATECKY,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 14‐CV‐340 — Sarah Evans Barker, Judge.
____________________
ARGUED FEBRUARY 21, 2018 — DECIDED MAY 17, 2018
____________________
Before RIPPLE, KANNE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. In 2002, Fredrick Laux broke into
his ex‐wife’s home and murdered her with a crowbar. A jury
in Grant County, Indiana, decided that the aggravating
circumstance of Laux’s crime—that he committed murder
during a burglary—outweighed the primary mitigating
circumstance—that he had no criminal history. The jury
recommended a sentence of life without parole, which the
state trial judge imposed. The Indiana state courts affirmed
2 No. 16‐3282
Laux’s convictions and sentence. After a post‐conviction
hearing, they also rejected the claim that his trial counsel
provided ineffective assistance in violation of the Sixth
Amendment to the U.S. Constitution.
In 2014, Laux filed a federal petition for a writ of habeas
corpus. The district court denied the petition. On appeal, Laux
contends that his trial counsel was ineffective by not fully
investigating and presenting all of the available mitigating
evidence about Laux’s childhood that surfaced at his 2011
post‐conviction hearing. If his trial counsel had presented all
of these details in 2002, Laux argues, there is a reasonable
chance that the jury would not have recommended a sentence
of life without parole. We affirm the judgment of the district
court. The state courts’ conclusion that Laux received effective
assistance of counsel was not unreasonable.
I. Factual Background and Procedural History
A. The Murder Trial and Penalty Phase
Laux’s state public defender said at the outset of his post‐
conviction proceeding, “there is really no doubt about who
killed Heidi Laux. And this trial”—the subject of Fred Laux’s
ineffective assistance claims here—“was all about what
punishment Mr. Laux was set to receive” for what he did to
his ex‐wife.
After eleven years of marriage and a period of separation,
the couple divorced in November 2001. Distraught by the
divorce, and increasingly disturbed by the prospect that Heidi
had found a new partner, Laux made a romantic gesture
toward Heidi on Valentine’s Day in 2002. He was rebuffed.
Heidi and Laux, along with their two daughters, attended a
social event the next evening where “Laux became
No. 16‐3282 3
increasingly suspicious that Heidi was involved with a co‐
worker.” Laux v. State, 821 N.E.2d 816, 817 (Ind. 2005) (Laux I).
Laux returned home and put his daughters to bed, but
remained fixated on Heidi’s new life without him. The
Indiana Supreme Court explained what happened next:
Around 3 a.m. the following morning, Laux awoke and
decided to “fix” Heidi. He dressed in two pairs of
sweatpants, a sweatshirt, gloves, a hat, and a ski mask.
He collected a flashlight and a crowbar and ran to
Heidi’s house.
Upon arrival, Laux used the crowbar to pry open a coal
chute and gain entrance to Heidi’s house. He entered
the basement through the chute and made his way
upstairs. Laux proceeded to Heidi’s bedroom, struck
her three times with the crowbar, strangled her, and
left. She died from her injuries within twenty minutes.
The State charged Laux with murder, felony murder,
and burglary resulting in bodily injury. It later
requested a sentence of life in prison without parole.
After a three‐day trial, the jury found Laux guilty on
all counts and recommended life in prison without
parole. The trial court merged Laux’s murder and
felony murder convictions and sentenced him to life in
prison without parole for the murder and a
consecutive term of twenty years for the burglary.
Id. at 817–18 (footnotes omitted). Because Laux contends that
his trial counsel was ineffective in failing to ward off a life
sentence, we focus on the penalty stage of his trial.
In Indiana, “life without parole is imposed under the same
standards and is subject to the same requirements” as
4 No. 16‐3282
imposing the death penalty. Ajabu v. State, 693 N.E.2d 921, 936
(Ind. 1998). This meant that with no dispute as to guilt, Laux’s
trial came down to the penalty phase where the jury
considered the aggravating and mitigating circumstances that
surrounded the crime. See Ind. Code § 35–50–2–9(b), (c), (d).
By statute, if a jury finds that aggravating circumstances
outweigh mitigating circumstances and thus decides to
recommend life without parole, its recommendation must be
accepted by the trial judge at sentencing. § 35–50–2–9(e).
In the penalty phase of his trial, Laux’s jury heard evidence
that he broke in to Heidi’s house that night intending to beat
her with his crowbar and kill her, and possibly also to rape
her. This undisputed evidence was the basis for Laux’s
burglary conviction, which in turn was the aggravating
circumstance under § 35–50–2–9(b)(1)(B) for his murder
conviction.
As for mitigating circumstances, Laux qualified for only
one of the seven circumstances specified by statute—no prior
criminal conduct. § 35–50–2–9(c)(1). The law also permitted
the jury to weigh any “other circumstances appropriate for
consideration.” § 35–50–2–9(c)(8). Laux’s trial counsel used
this opportunity to present him as a devoted father and
devout Catholic of above‐average intelligence who, in the
words of a psychiatrist, had been overtaken by a “severe
mental disease at the time of the offense” (i.e., “major
depression”).
Because Laux was found to be sane at the time of the
offense, his mental condition did not qualify as one of the
express mitigating circumstances under the law. See § 35–50–
2–9(c)(6). Jurors heard from two experts about Laux’s episode
of depression and related medications. These experts
No. 16‐3282 5
formally testified as the State’s witnesses, though they had
been appointed by the trial court at the behest of Laux’s trial
lawyer, who reviewed their written reports ahead of their
testimony. Both Dr. Parker (a psychiatrist) and Dr. Atkinson
(a psychologist) had interviewed Laux and studied his
personal history and mental health. Though their diagnoses
differed somewhat, both experts rejected the idea that Laux’s
mental‐health struggles caused him to commit the murder.
Laux’s lawyer called as a witness a priest who had known
Laux for over fifteen years, since Laux had been a student at
Purdue University. In the priest’s judgment, Laux was a
particularly devoted Catholic. The priest also shared that
because Laux was so distraught after the police came to
inform him of Heidi’s death, the priest had to inform Laux’s
young daughters about their mother’s murder. After the
priest’s testimony, Laux’s lawyer called a Catholic school
teacher who had one of Laux’s young daughters in her class.
She reported that Laux was a devoted father and active in
their parish. Finally, Laux himself took the stand to express
his remorse and to (try to) explain his actions.
In his closing statement in the penalty phase, Laux’s trial
lawyer stressed that Laux had no history at all of violent
behavior or criminal activity. His lawyer repeated that even if
it did not legally amount to a defense, Laux had a “severe
mental disease” according to the experts. “I understand the
State wants you to ignore that,” his lawyer continued, “but
that’s a fact, that’s what was said by the doctors and those are
doctors … that’s not my diagnosis.” “[D]on’t just totally
discount that and throw that in the trash. That’s the whole
reason we did this trial was to get that story before you.”
6 No. 16‐3282
Laux’s lawyer summed up by reminding the jurors that
Laux “had something go seriously, tragically wrong with his
thinking that night … all I’m asking you to do is weigh that as
a [factor in] mitigation [regarding] … whether he should go
to jail for the rest of his life. You can’t discount that and say it
didn’t happen.” The jury recommended life without parole.
B. Post‐trial Procedural History
1. State Court Proceedings
a. Direct Review
Laux appealed his life‐without‐parole sentence directly to
the Indiana Supreme Court, which has jurisdiction over such
appeals. Ind. App. R. 4(1)(a). Before rendering a decision,
however, the Supreme Court remanded Laux’s case to the
state trial court for additional findings in light of Ring v.
Arizona, 536 U.S. 584 (2002), Apprendi v. New Jersey, 530 U.S.
466 (2000), and a conforming change in state law specifying
that aggravating circumstances must be proven beyond a
reasonable doubt. Ind. Code § 35–50–2–9(l); see also Corcoran
v. Neal, 783 F.3d 676, 678 n.2 (7th Cir. 2015); Laux I, 821 N.E.2d
at 818, 821; id. at 824 (Sullivan, J., dissenting). The Indiana
Supreme Court decided in 2005 to vacate a no‐contact order
that had been imposed to prevent Laux from contacting
Heidi’s family and his children, but otherwise affirmed Laux’s
sentence. Laux I, 821 N.E.2d at 818–23.
Justice Sullivan dissented, finding that the mitigating
circumstances (as presented by Laux’s trial lawyer) warranted
a sentence “less than life without parole.” Id. at 825 (Sullivan,
J., dissenting). Laux’s “blemish‐free legal history throughout
his childhood and adulthood” in Justice Sullivan’s view
entitled Laux to “consideration upon committing a first
No. 16‐3282 7
offense,” even one of this magnitude. Id. Since “absence of
criminal history is the weightiest of all mitigating
circumstances,” and “following graduation from high school
and Purdue University, Laux was hard‐working, honest, and
responsible,” Justice Sullivan would have found that the
aggravating circumstance of burglary did not compel life
without parole. Id. He believed sixty‐five years in prison was
a more appropriate sentence, given the presence of weighty
circumstances on both sides. Id.
b. Post‐Conviction Review
In line with the normal practice in Indiana, see Brown v.
Brown, 847 F.3d 502, 512–13 (7th Cir. 2017), Laux did not argue
ineffective assistance of counsel on direct review of his
sentence. He first raised those arguments in the post‐
conviction petition he filed in 2005 and later amended in 2011.
See Laux v. State, 985 N.E.2d 739, 743–44, 743 n.1 (Ind. App.
2013) (Laux II). To develop a record for these claims nine years
after trial, the state public defender representing Laux called
his trial lawyer, his appellate lawyer, his sister, Dr. Parker (the
psychiatrist), a juror, and an acquaintance who once worked
for Laux at a retail store. Though Laux raised a host of issues
in his state post‐conviction proceedings, he has focused our
attention in this appeal on just one issue: whether his trial
lawyer provided ineffective assistance by failing to
investigate fully and present mitigating evidence with respect
to his childhood and family history.
On this score, the state public defender elicited the
following evidence at the post‐conviction hearing. Laux’s trial
lawyer had about ten years of legal experience at the time, but
he had never before served as lead counsel on a murder case
as of the fall of 2002. As part of the lawyer’s preparation, he
8 No. 16‐3282
reviewed the Indiana Public Defender Council’s life‐without‐
parole materials since, in his recollection, “I don’t think” a
trial like Laux’s “had been something that anyone [around]
here had done before.” He prepared for the penalty phase of
Laux’s trial as he had for other cases, by speaking to Laux
himself “about his history and his family and who he thought
… would be beneficial” to call as a witness in mitigation.
Laux’s lawyer could not remember clearly whether he had
spoken to Laux’s family members, but thought he had at least
seen some correspondence from Laux’s sister. Laux’s lawyer
also requested court‐ordered psychological examinations for
his client, and he reviewed the resulting written reports
before examining Dr. Parker and Dr. Atkinson at trial.1
Although Dr. Atkinson had passed away between Laux’s
trial in 2002 and his post‐conviction hearing in 2011, her pre‐
trial report was discussed at length in the post‐conviction
hearing. Dr. Atkinson had reported before trial that Laux’s
father had been an alcoholic whose drinking had caused
financial problems for the family. Laux’s mother had been
present but emotionally distant from the children; she was
later diagnosed with paranoid schizophrenia after Laux and
his three sisters had reached adulthood. Dr. Atkinson
repeated Laux’s characterization of his relationship with his
siblings by saying “he and his sisters were close and ‘clung’
1 If the accused intends to pursue an insanity defense in Indiana, the
court must appoint at least two mental health experts. See Frentz v. Brown,
876 F.3d 285, 291 (7th Cir. 2017); see also Ind. Code § 35–36–2–2 (2002). As
noted, Laux did not qualify for an insanity defense, but by requesting
mental‐health examinations, his lawyer made it possible for the jury to
hear independent expert opinions about his personal history and mental‐
health struggles.
No. 16‐3282 9
together because of the lack of support and interest from the
parents.”
Laux’s sister Paula added more details to this story when
she testified at the post‐conviction hearing in 2011. Paula
reported that “money was real tight growing up” because of
their father’s drinking and spending habits. Laux’s father
would often be nude around the house, and he took his
children along when he went to see R‐rated and even X‐rated
movies. Paula also testified that their mother had gotten a job
at a canning factory when the children were adolescents, but
by 1991 when Laux was an adult, her paranoia had grown
worse and culminated in hospitalization and her
schizophrenia diagnosis. The parents’ marriage was far from
a happy one, but it did not become physically abusive. When
the two would fight, their daughters would “wait to see if it
got violent. And it never did.” Though Paula admitted that
she did not remember a lot about her childhood, and
speculated that she had “blocked a lot of it out,” she had no
opportunity to share these details at Laux’s trial because no
one from his defense team had ever interviewed her.
Dr. Parker testified last, and much of his testimony was
devoted to criticizing the diagnosis Dr. Atkinson had
presented at trial: that Laux suffered from anti‐social
personality disorder. Though Dr. Parker had not met with
Laux since his pre‐trial interview almost a decade before, he
described Laux as having “a very limited range of emotion.”
Dr. Parker opined at length that Dr. Atkinson had
misinterpreted Laux’s cold, distant demeanor as a lack of
remorse, resulting in a misdiagnosis. On this point, post‐
conviction counsel and Dr. Parker had the following
exchange:
10 No. 16‐3282
Q. Earlier you stated the lack of remorse could have
other alternative explanations besides being anti‐
social since in your opinion, Mr. Laux is not anti‐
social, what are those?
A. Mr. Laux comes from a dysfunctional family. His
father was an alcoholic throughout his upbringing.
His mother … had pre‐morbid schizophrenia[.] …
So if he grew up in a family where the display of
emotion was not encouraged, was not shown, was
not modeled, and it was not welcome as far as I can
tell, he reacted as many first children of alcoholics
do by working very hard and trying to be as
successful as possible[.] … So I think the reserve,
the difficulty with emotions, has a better
explanation in his family, and the dynamics of that
family, than in calling it a lack of remorse.
Dr. Parker acknowledged, though, that when he analyzed
Laux before trial, he knew Laux’s mother had suffered from
late‐onset mental illness. Dr. Parker also did not retreat from
his own diagnosis—that Laux was depressed, but the murder
was not related to his depression.
The state trial court denied post‐conviction relief in a
thorough order. Supp. App. 392–402. After discussing the
Strickland standard, the post‐conviction judge explained point
by point why none of Laux’s claims of ineffective assistance
merited relief. The court briefly described the penalty phase
and noted that Laux’s one undisputed mitigating
circumstance (no criminal history) was not overlooked. The
mitigating evidence advanced at the post‐conviction stage,
the judge concluded, would also not have made a difference
No. 16‐3282 11
to the Indiana Supreme Court when it weighed Laux’s
sentence on direct review.
The Indiana Court of Appeals—whose decision we review
here under 28 U.S.C. § 2254(d)(1)—affirmed the post‐
conviction court in all respects. Laux II, 985 N.E.2d at 755.
Citing Strickland and related state cases repeatedly, the state
appellate court found that “Laux was provided effective
representation of counsel at the penalty phase,” id. at 751, and
commented that the “pursuit of mental health evidence to
support his mitigation [case] was sound strategy” on the part
of trial counsel, id. at 754, even if the jury did not in the end
find for Laux.
The appellate court rejected Laux’s argument that his
lawyer was ineffective for failing to put on childhood
mitigation testimony. It decided that “the evidence presented
through Laux’s sister was not mitigating” because in the
opinion of the Indiana judiciary, “such family anecdotes have
little, if any, mitigating value.” Id. at 752. Even if they did, “the
evidence of Laux’s childhood and background fail[s] to show
so much as significant hardship,” especially since Laux
himself was never abused and later became a productive
adult. Id. at 752. The Indiana Supreme Court denied transfer.
987 N.E.2d 521 (Ind. 2013).2
2 Because the Indiana Supreme Court’s summary denial of transfer
did not specifically address Laux’s Strickland claims, we “‘look through’
the unexplained decision to the last related state‐court decision that does
provide a relevant rationale” for denying his federal claims. See Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018). The decision of the state court of
appeals, then, is the one we examine here under § 2254(d)(1).
12 No. 16‐3282
2. Federal Court Proceedings
In 2014, Laux filed a pro se habeas corpus petition in
federal court. He raised four claims that echoed his claims in
the state courts. The district court found one claim
procedurally defaulted and rejected the other three on the
merits, including the claim that Laux’s trial lawyer had been
ineffective during the penalty phase of his trial. The court
found that “the unpresented mitigation evidence discussed
above is not nearly as compelling as the types of childhood
mitigation evidence the Supreme Court has found to be
prejudicial.” App. 46. As a result, the district court concluded
under 28 U.S.C. § 2254(d)(1) that the state court’s Strickland
analysis was not unreasonable; it was instead “eminently
reasonable” for the Court of Appeals to deal with the
unpresented evidence and expert post‐conviction testimony
as it did.
II. Analysis
A. Habeas Corpus Review of Ineffective Assistance of Counsel
in State Court
Our standard of review in this context is familiar. “We
review the district court’s decision denying habeas relief de
novo,” but must give significant deference to state court
decisions adjudicating federal constitutional claims on the
merits. Carter v. Duncan, 819 F.3d 931, 940 (7th Cir. 2016).
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996, we must give effect to state court decisions
on the merits of a claim “unless the adjudication of the
claim— … resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
No. 16‐3282 13
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).
A claim for ineffective assistance of counsel adds another
layer of deference in our review. The defendant or petitioner
must show “that counsel’s performance was deficient” in that
it was objectively unreasonable under the circumstances (the
performance prong), and the defendant or petitioner must
also show that such “deficient performance prejudiced the
defense” (the prejudice prong). Strickland v. Washington, 466
U.S. 668, 687, 688 (1984). This inquiry into a lawyer’s
performance and its effects turns “on the facts of the
particular case,” which must be “viewed as of the time of
counsel’s conduct.” Lockhart v. Fretwell, 506 U.S. 364, 371
(1993), quoting Strickland, 466 U.S. at 690.
As for the performance prong, because “it is all too easy to
conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight,” Strickland
directs courts to adopt “a ‘strong presumption’ that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Bell v. Cone, 535 U.S. 685, 702 (2002), quoting
Strickland, 466 U.S. at 689. The prejudice prong requires the
defendant or petitioner to “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
When these standards are combined, the deference given
to the state court decision under review is considerable. “The
text of § 2254(d)(1) … suggests that the state court’s decision
must be substantially different from the relevant precedent
of” the Supreme Court to lose deference, which in cases
involving Strickland, is not lost even when a state decision is
14 No. 16‐3282
at odds with “the federal court’s conception of how Strickland
ought to be applied in that particular case.” Williams v. Taylor,
529 U.S. 362, 405, 406 (2000). Indeed, the Supreme Court has
said that in such cases the “question is whether there is any
reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington v. Richter, 562 U.S. 86, 105
(2011).
B. Strickland Claims Involving Mitigating Evidence
The Strickland protections apply not only in criminal trials
but also at sentencing, where the defendant’s counsel is
expected to offer a case to mitigate punishment. See Cone, 535
U.S. at 697–98; Fretwell, 506 U.S. at 366; Strickland, 466 U.S. at
686–87; see also Griffin v. Pierce, 622 F.3d 831, 843–45 (7th Cir.
2010). The Supreme Court has taught that defense counsel has
an “obligation to conduct a thorough investigation of the
defendant’s background” in advance of such proceedings,
with an eye toward evidence that speaks in the client’s favor.
Williams, 529 U.S. at 396. Evidence tending to show that the
accused had survived a “childhood … filled with abuse and
privation,” that the accused suffered from developmental
limitations, or that his “violent behavior was a compulsive
reaction rather than the product of cold‐blooded
premeditation” can all be relevant to a “jury’s appraisal of his
moral culpability,” and thus the sentence. Id. at 398.
This duty to present mitigating evidence goes beyond
facts that will directly “undermine or rebut the prosecution’s
… case” regarding the crime because mitigating evidence
“may alter the jury’s selection of penalty” even if it is purely
biographical. Id. For their part, state courts applying Strickland
to mitigation cases must be sure to “evaluate the totality of the
available mitigation evidence” in deciding whether counsel
No. 16‐3282 15
was ineffective. Id. at 397–98; see also Porter v. McCollum, 558
U.S. 30, 41 (2009); Baird v. Davis, 388 F.3d 1110, 1115 (7th Cir.
2004) (discussing state court responsibilities in assessing
mitigating circumstances).
This means that counsel in a penalty phase is responsible
for reasonably investigating the defendant’s background and
must present useful mitigation evidence, unless counsel
decides not to pursue certain approaches for reasonable
strategic reasons. The Supreme Court explained this
requirement in Wiggins v. Smith:
In finding that [counsel]’s investigation did not meet
Strickland’s performance standards, we emphasize that
Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how
unlikely the effort would be to assist the defendant at
sentencing. Nor does Strickland require defense
counsel to present mitigating evidence at sentencing in
every case. … [However,] “strategic choices made after
less than incomplete investigation are reasonable” only
to the extent that “reasonable professional judgments
support the limitations on investigation.” Id., at 690–
691. A decision not to investigate thus “must be
directly assessed for reasonableness in all the
circumstances.” Id., at 691.
539 U.S. 510, 533 (2003), quoting Strickland, 466 U.S. at 690–91.
We have applied this deferential reasonableness standard
before where counsel must decide how best to present mental
health expert testimony and diagnoses, and where further
development of that evidence could pose legal risks for the
client. See, e.g., Frentz v. Brown, 876 F.3d 285, 293–95 (7th Cir.
2017).
16 No. 16‐3282
Strickland cases, especially in the mitigation evidence
context, are not easy for petitioners to win. This is especially
true where, as here, “the new evidence ‘would barely have
altered the sentencing profile presented’” in the trial court.
Porter, 558 U.S. at 41, quoting Strickland, 466 U.S. at 700. Yet,
in capital or life‐without‐parole cases, there is often at least
some basis for this kind of argument. With the benefit of
hindsight, a defendant can often point to some additional
subject and argue it should have been pursued further. The
Sixth Amendment does not require counsel to investigate
every conceivable line of mitigation evidence—it requires
counsel to make reasonable decisions about which matters to
pursue. Wiggins, 539 U.S. at 533. We now turn to the decision
challenged in this appeal.
C. Reasonableness of the Laux II Decision
1. Trial Counsel’s Performance
The Laux II court recounted the same facts presented
above: Laux’s trial lawyer made efforts to educate himself
about the life‐without‐parole procedures. He reviewed expert
reports ahead of time, and he cross‐examined those experts
“thoroughly” in the penalty phase to help elicit mitigating
details. Laux II, 985 N.E.2d at 751–52. Laux’s trial counsel also
“called two lay character witnesses, in addition to Laux, to
discuss Laux’s lack of criminal history, his mental instability
shortly before the murder, and his traits as a devoted father,
Catholic, and husband, in an effort to gain sympathy from the
jury.” Id. at 751. The court then discussed the post‐conviction
testimony from Dr. Parker, Laux’s sister, and his former co‐
worker. Id. at 752. From all this the state court found that trial
“counsel’s focus on Laux’s mental health, devotion to his faith,
and children was a reasonable tactic to employ considering
No. 16‐3282 17
the de minimis value of the proffered childhood testimony.”
Id. at 753.
This analysis is not inconsistent with Cone, Richter, and
Williams. The state court’s reasoning considered the entire
record and concluded that trial counsel provided objectively
reasonable assistance. This was not an unreasonable
application of Strickland. While the record does not clearly
establish whether or not Laux’s trial lawyer ever spoke to his
sister, compare Supp. App. 273, with id. at 285, 347, counsel
arranged for the mental health experts’ evaluations, read
about Laux’s personal history and discussed it with him,
shaped expert and lay opinion testimony at trial to benefit
Laux, and highlighted for the jury Laux’s non‐violent past and
positive character traits.
The trial lawyer’s decision to leave the mitigation case at
that was not objectively unreasonable under Strickland. The
mitigation evidence he presented, in fact, was enough for one
Justice of the Indiana Supreme Court to have agreed that the
aggravating and mitigating circumstances were in equipoise,
warranting appellate intervention. But in the end, this was a
minority view, and one that did not implicate Strickland. See
Laux I, 821 N.E.2d at 823–25 (Sullivan, J., dissenting).3 The
3
Indiana’s appellate courts have substantial discretion to revise
sentences they believe are “inappropriate in light of the nature of the
offense and the character of the offender.” Laux I, 821 N.E.2d at 824
(Sullivan, J., dissenting), quoting Ind. App. R. 7(B); see also Robinson v.
State, 91 N.E.3d 574, 577 (Ind. 2018) (explaining that Article 7, Sections 4
and 6 of the Indiana Constitution grant this power). Justice Sullivan did
not reach any conclusion about whether the jury’s contrary view was
reasonable; his analysis simply concluded that Laux’s “absence of any
18 No. 16‐3282
Laux II court recounted all of these facts and reached the not‐
unreasonable conclusion that Strickland did not require more
than what Laux’s lawyer did for him.
2. Prejudice to the Defendant
The state court’s decision on the prejudice prong was also
not unreasonable. Unlike Porter v. McCollum, the new
mitigation evidence here “would barely have altered the
sentencing profile presented.” 558 U.S. at 41, quoting
Strickland, 466 U.S. at 700. The state court adopted the State’s
view of this mitigation evidence:
… Laux’s trial counsel presented a penalty phase case
in which the jury saw a defendant who was
emotionally drained from a divorce with the woman
he still loved, accepted responsibility for his actions,
was suffering from mental defects, had an acute
momentary lapse of reason, genuinely regretted his
actions, had no prior criminal history, was educated,
had a strong work ethic, and had been a devoted father,
Catholic, and husband.
Laux II, 985 N.E.2d at 752. In comparison, “the evidence of
Laux’s childhood and background fail[s] to show so much as
significant hardship.” Id. Since he was never “a victim of
abuse or neglect,” “was never in trouble,” and “excelled in
both high school and college,” the stories of his difficult
childhood were little more than “family anecdotes” in the
judgment of the state court. Id. There was no reasonable
probability, according to the state court, that the result of
prior criminal history” met his own standard for relief. Laux I, 821 N.E.2d
at 825 (Sullivan, J., dissenting).
No. 16‐3282 19
Laux’s penalty phase would have been any different even if
Dr. Parker’s professional rebuttal had been offered and Laux’s
sister had testified. Id.
This was not an unreasonable application of Strickland. In
Griffin v. Pierce, we collected the relevant Supreme Court cases
finding that petitioners were prejudiced by their lawyers’
failures to present childhood mitigation evidence. 622 F.3d
831 (7th Cir. 2010). Laux’s childhood difficulties pale in
comparison to the “nightmarish” childhoods of those
petitioners:
Rompilla v. Beard, 545 U.S. 374, 390–93 (2005)
(mitigation case built on evidence that petitioner was
raised in a “slum environment,” quit school at 16, and
had a serious drinking problem; test results pointed to
schizophrenia and other disorders; … his parents were
severe alcoholics who drank constantly; there was no
expression of parental love, affection or approval, only
yelling and verbal and physical abuse; … his mother
went missing frequently for several weeks at a time;
and he suffered from fetal alcohol syndrome); Wiggins,
539 U.S. at 535 (petitioner suffered “severe privation
and abuse … while in the custody of his alcoholic,
absentee mother,” physical torment, sexual
molestation, rape in foster care, homelessness, and
diminished mental capacities …); Williams, 529 U.S. at
395–96 (mitigation evidence included records of
“nightmarish childhood,” involving severe and
repeated beatings by petitioner’s father and criminal
neglect by both parents, placement in an abusive foster
home during parents’ incarceration, and petitioner was
20 No. 16‐3282
“borderline mentally retarded” and did not go beyond
sixth grade).
Id. at 844. Laux’s post‐conviction hearing record contains
nothing comparable. The state court thus did not
unreasonably apply Strickland within the meaning of
§ 2254(d)(1) when it decided that Laux’s childhood mitigation
evidence would likely have had minimal value to the jury.
In essence, Laux’s prejudice argument depends on the
proposition that the jury needed greater “context [for] his
limited emotional capacity,” the kind of context that Dr.
Parker later gave in his post‐conviction rebuttal to Dr.
Atkinson’s diagnosis. Appellant Br. at 42; see also Supp. App.
at 372–73. His emotional development, Laux contends, “was
stunted.” Appellant Br. at 43. This argument is essentially an
attempt to rebut the expert testimony actually presented in
the penalty phase (which gave no special moment to Laux’s
childhood) with other facts that those experts had in their
possession at the time. See id. at 43–44; Appellee Br. at 4; Supp.
App. at 2–3, 14–15, 49–52, 87–91. In other words, Laux now
wants to re‐write his psychological profile for this court. Since
the stringent AEDPA standard of review was designed to
“prevent federal habeas ‘retrials’ and to ensure that state‐
court convictions are given effect to the extent possible under
law,” Cone, 535 U.S. at 693, this argument is misplaced. The
state courts did not apply Supreme Court precedent
unreasonably when they found that Laux’s later‐discovered
childhood mitigation evidence did not undermine confidence
in the results of his original sentencing proceeding.
No. 16‐3282 21
3. Weighing Childhood Mitigation Evidence
Though the Laux II court’s weighing of the mitigation
evidence was not unreasonable under § 2254(d)(1), Laux does
raise one argument about that decision that is well‐taken. In
adopting the State’s analysis, the state court cited Ritchie v.
State, 875 N.E.2d 706, 725 (Ind. 2007), for the proposition that
Indiana courts believe “evidence of a difficult childhood
warrants little, if any, mitigating weight.” Laux II, 985 N.E.2d
at 752. Ritchie observed that although state courts must
consider childhood mitigation evidence as a matter of federal
law, Indiana courts generally do not give it much weight in
their analysis of prejudice under Strickland. See 875 N.E.2d at
725, citing Williams, 529 U.S. at 398. To explain why this
approach is troubling but does not deprive the Laux II
decision of the deference it is due under AEDPA, we first
describe Ritchie before returning to Laux II.
The relevant portion of Ritchie dealt with appellate
counsel’s failure to make an argument under Indiana
Appellate Rule 7(B), which gives Indiana’s appellate courts
the equitable power to revise sentences they deem
inappropriate. The defendant in Ritchie shot and killed a
police officer. 875 N.E.2d at 713. The defendant’s childhood
was blighted by learning disabilities, trouble in school, an
unstable home environment, a suicide attempt, several
unfortunate head injuries, and other problems. Id. at 720–23.
Much of this evidence was presented in some form in the
penalty phase of Ritchie’s trial, but his post‐conviction
counsel later found additional reports and experts to
strengthen Ritchie’s inappropriateness argument. Id. at 719–
20. The Ritchie court concluded that the defendant had “failed
to show that the outcome of his direct appeal would have
22 No. 16‐3282
been any different had appellate counsel raised a 7(B)
challenge to his sentence” in light of the low weight Indiana’s
courts tend to give to childhood mitigation evidence. Id. at
726.
The problem here is that the Laux II court lifted Ritchie’s
“little, if any mitigating weight” idea out of the Appellate
Rule 7(B) context, where it was offered as an empirical
description of the tendencies of the state’s appellate courts,
and applied it instead to a penalty‐phase factfinder who must
weigh all of the evidence in mitigation without such
preconceived notions. Federal law does not permit sweeping
generalizations about the likely weight of certain kinds of
evidence when assessing prejudice under Strickland in front
of a penalty‐phase jury.
Laux argues that the categorical Ritchie approach is
contrary to Wiggins, where the Supreme Court declared that
the “mitigating evidence counsel failed to discover and
present” to the jury was “powerful” because it included
significant childhood abuse, torment, and “diminished
mental capacities.” 539 U.S. at 534, 535, 536. Likewise, the
portion of Williams that the Ritchie court cited criticized a state
court that “did not entertain [the] possibility” that a jury may
have been influenced by a “graphic description of Williams’
childhood, filled with abuse and privation.” 529 U.S. at 398.
Laux II’s citation to Ritchie is troubling, but not decisive.
First, the approach indicated in Ritchie is not wrong as a
matter of clearly established federal law, but it can easily be
misapplied outside of Ritchie’s peculiar context—the decision‐
makers relevant to Ritchie’s “little, if any, mitigating weight”
observation were state appellate judges exercising
discretionary state law power, not juries or trial judges
No. 16‐3282 23
finding facts in penalty phases, where Wiggins and Williams
apply. Second, though the analysis in Laux II blurs this
important distinction in a way that can be misunderstood, the
state court’s bottom‐line conclusion that Laux was not
prejudiced by his trial counsel’s penalty‐phase presentation is
still not unreasonable.4
This approach noted in Ritchie is not contrary to Wiggins,
Williams, or Rompilla because it pertains to an equitable power
of state appellate courts that is separate and apart from
Indiana’s statutory capital sentencing process. Compare Ind.
App. R. 7(B) with Ind. Code § 35–50–2–9. Under either
process, any appropriate mitigating evidence may be
considered. See Ritchie, 875 N.E.2d at 725; Ind. Code § 35–50–
2–9(c), (c)(8) (“The mitigating circumstances that may be
considered” by the factfinder (which is usually a jury) include
seven specified categories plus any “other circumstances
appropriate for consideration”). According to Ritchie, state
appellate courts are reluctant to give childhood evidence
much weight in their appropriateness assessment. What this
4 As noted, Ritchie itself dealt with an overlooked Indiana Appellate
Rule 7(B) argument that did not end up prejudicing that defendant. See
Ritchie, 875 N.E.2d at 726. However, it also cited a variety of cases saying
that childhood mitigation evidence receives little weight. Two of these
cases also involved appellate review of sentences under state law, and not
Strickland. See id. at 725, citing Peterson v. State, 674 N.E.2d 528, 542–43
(Ind. 1996) (applying state constitutional provision implemented in Rule
7(B)), and Loveless v. State, 642 N.E.2d 974, 976 (Ind. 1994) (reviewing
decision of sentencing judge, but analyzing that action in context of
Indiana Supreme Court’s “power to modify sentences”); see also Loveless,
642 N.E.2d at 977, citing Harrington v. State, 584 N.E.2d 558, 564–65 (Ind.
1992) (asking whether sentence was “manifestly unreasonable”). We
address Coleman, the third case cited in Ritchie, in note 6 below.
24 No. 16‐3282
actually means is that appellate counsel’s failure to make a
Rule 7(B) argument to an Indiana appellate court will rarely
be prejudicial if the argument centers on childhood mitigation
evidence. That’s because those claims typically fail anyway.
Ritchie did not comment on what Indiana juries or trial judges
sitting as factfinders will do in their deliberations under § 35–
50–2–9(c), and (l), which explicitly permit the factfinder to
consider such evidence and do not assign different weights to
different kinds of mitigating evidence.5
If a state adopted a categorical rule preventing either
judges or juries from considering certain kinds of mitigation
evidence, that rule would be contrary to the expectation that
factfinders assess the full body of mitigation evidence, as
established in Wiggins and Williams. See 539 U.S. at 534–35;
529 U.S. at 398; see also Baird, 388 F.3d at 1115–16. If a state
were to assign pre‐determined weights to different kinds of
mitigating evidence, that might be problematic as well, given
that other Supreme Court decisions stress the need for
individualized determinations in imposing serious
punishments. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604–05
(1978). But simply acknowledging the empirical fact that a
state’s appellate courts are generally more receptive to certain
kinds of mitigating evidence than others when they make a
discretionary equitable determination under state law does
not raise concerns under § 2254(d)(1).
Thus the Laux II court should not have read Ritchie beyond
the context of Indiana Appellate Rule 7(B), where it raises no
5 Laux does not raise any ineffective assistance of appellate counsel
claims in this court. The district court found those claims procedurally
defaulted. See App. at 34–36.
No. 16‐3282 25
federal law concerns, and applied it to a penalty‐phase jury
context where the Supreme Court has shown more concern
about jury determinations of “moral culpability.” See
Williams, 529 U.S. at 398. Regardless of whether this reliance
on Ritchie was appropriate, however, Laux has not shown that
the state court’s bottom‐line conclusion on prejudice was
unreasonable within the meaning of § 2254(d)(1).6
Conclusion
In Williams v. Taylor, the Supreme Court spoke of a
hypothetical “run‐of‐the‐mill state‐court decision applying
the correct legal rule from our cases” that rejects a prisoner’s
claim. 529 U.S. at 406. At bottom, that is this case. The district
court was correct to deny habeas relief, and its decision is
AFFIRMED.
6 One case cited in Ritchie came much closer to running afoul of
Williams, but not in a way that gives pause given its peculiar
circumstances. See 875 N.E.2d at 725, citing Coleman v. State, 741 N.E.2d
697 (Ind. 2000). Coleman was decided on remand from the U.S. Supreme
Court in light of Williams v. Taylor itself, and its differences with Williams
are explained in detail. 741 N.E.2d at 698, 700–03. The U.S. Supreme Court
declined to take up Coleman again after this decision. Coleman v. Indiana,
534 U.S. 1057 (2001) (mem.) (denying petition for writ of certiorari).
Though the Coleman court made reference to “our previous holdings
that a difficult childhood carries little mitigating weight,” Coleman, 741
N.E.2d at 703 (by which the court presumably meant the state‐law cases
Peterson and Loveless, see id. at 700–01), the facts in Coleman involved “a
predatory and unrepentant defendant who had two prior capital murder
convictions” and who also had a less compelling childhood mitigation
case than the defendant in Williams. Id. at 703. Coleman’s passing
observations about the general weight given to childhood mitigation
evidence are like those in Laux II—better left in the context of Rule 7(B),
but not critical to the state court’s eventual decision applying Strickland.