Christopher M. Stevens v. Daniel McBride

MANTON, Circuit Judge,

concurring in part and dissenting in part.

I join the opinion of the court as to part II-C regarding the claims concerning the stun belt and discovery issues. I concur with Judge Wood in denying habeas relief from the conviction, but write separately to explain my agreement with the state court’s reasoning. I respectfully dissent from the granting of habeas relief for the death penalty sentence because I conclude that the state court’s decision denying collateral relief did not include unreasonable determinations of the facts and was not contrary to or an unreasonable application of Supreme Court precedent.

In May 1993 Christopher Stevens was released on probation from the Marion County jail in Indiana where he had been serving a sentence for child molestation. He moved in with his father, whose home was in the same subdivision as that of ten-year-old Zachary Snider’s family. In the early summer, Stevens attended and videotaped one of Zachary’s Little League games and later, with his father’s permission, took Zachary fishing. Stevens’s relationship with Zachary culminated in sexual *904contact with him. Because a fuller recitation of the facts is significant to evaluating and understanding the Supreme Court of Indiana’s decision, the following is a portion of that court’s factual findings:

In the videotaped confession ... Stevens told the officers that on Thursday, July 15, Zachary visited Stevens in the early afternoon, but stayed only for a short time, saying that he would return after he had picked up some money, talked to his father, and changed his clothes. When he returned, Zachary and Stevens talked for a while as Stevens flipped through the channels on his television, and then the two went to Stevens’ bedroom and “messed around,” which mainly included the two performing fellatio on each other but never anal sex. This activity was not new to the pair, as they had had an ongoing sexual relationship since shortly after Stevens returned to Stardust Hills after serving his time in the Marion County jail. After they “did stuff for awhile,” Zachary angrily confronted Stevens with a rumor he had heard concerning Stevens having sexual relations with Zachary’s mother. Because of this rumor, Zachary threatened to reveal Zachary and Stevens’ sexual relationship to his parents. This threat made Stevens “real scared.” He stated,
He said, he, he threatened to tell ... about me and him, and, uh, I’d just went through a bunch of [expletive] in Indy, and that was just, just on my mind. I was like, I just didn’t want to, thinking to myself, you know, I just can’t go through all that [expletive] again.
After Zachary’s threat, the two “messed around some more,” which Stevens again stated meant “having sex.” Once finished, Stevens led Zachary by the hand into his brother’s room and the two got onto the bed. Stevens took one of his brother’s pillows and placed it over Zachary’s face in an attempt to suffocate him. Zachary did not really resist; rather, “he just kept sayin’ I love you, Chris; I love you, Chris.’ ” Because the pillow “wasn’t doing anything,” Stevens looked around the room and noticed a Sega Genesis controller on the floor. He picked it up and, using the cord, wrapped it around Zachary’s neck, at first just once but then two or three times, and strangled the boy. When Stevens “thought it was all over,” he removed the cord from Zachary’s neck and proceeded to pace back and forth between Stevens’ brother’s bedroom and his own room looking at Zachary’s body and contemplating what he would now do.
About five minutes later Zachary, while still unconscious, began to take deep breaths. So, Stevens said, “I went [into my kitchen] and got a trash bag and put it over his head and wrapped it around his head, he was unconscious so, you know, I knew he wouldn’t be ripping it off his face and stuff.” Once the child had suffocated, Stevens carried Zachary from his brother’s bedroom into his own room and laid the boy’s body on his bed. Stevens later revealed to a psychologist for the defense that he killed for fear of having to return to prison brought on by Zachary’s threat to tell.
Stevens then went out to the garage, pulled a trailer, lawn mower, and grill onto the driveway to make room for his car, brought his car into the garage, and shut the garage door. He then placed Zachary’s bike1 in the back of the car, *905went in and got Zachary’s body and placed it also in the back of his car, and then covered them both with a cover. Stevens then described in detail how he drove out into the country and threw Zachary’s body and bike over a bridge, naming the roads he took to reach the remote location. Initially, the bike got caught in a tree “where anybody could see it if they walked by or drove by,” so Stevens “jumped down there” and pulled both Zachary’s body and bicycle beneath the bridge. In relating his state of mind during the murder and immediately thereafter, he described himself as “nervous and scared,” “all frantic” and “not really thinking.”
Once home, Stevens telephoned Mark White to request help in pushing the trailer in his driveway back into his garage. After White assisted Stevens and left, Stevens placed the mower and grill back in the garage, and went back inside his house. Later that evening, Stevens took a can of Lysol and sprayed down his car, the cover used in the car to conceal the body and bike, and his and his brother’s beds. He also played basketball with White, during which time he saw the Sniders driving around the neighborhood looking for Zachary. When he and White finished playing basketball, Stevens called Mrs. Snider to learn the status of their search for Zachary, but did so under the guise of inquiring about some rock concert tickets. During this call, Mrs. Snider asked if Stevens had seen Zachary that day, to which Stevens said, “No.” Mrs. Snider then revealed that Zachary was missing, and Stevens offered to help them look. Mrs. Snider replied that she would call him if they needed his help. Although she never called back, Stevens went over to their home just before 9 p.m. As he talked with Mrs. Snider, he saw a policeman arrive and walk up the Sniders’ driveway. Because Stevens “didn’t want to be around the cop,” he told Mrs. Snider that he would “go check a couple of places” and quickly departed. Stevens then went to various houses asking the occupants if they had seen Zachary.
Later that night Stevens returned to Zachary’s body because he recalled leaving the plastic trash bag wrapped around Zachary’s head. Stevens stated, “I went back out there to get the trash bag cause, I figured if you guys [the police] seen the trash bag and looked in our house and seen the same kind of trash bags and, and stuff.” Stevens described the trash bag as one with handle ties, green outside and black inside. Upon recovering the bag, Stevens drove away from the scene and, after traveling some distance, threw the bag out of his window. Upon returning to Stardust Hills he again went to the Sniders’ house and inquired whether they had heard anything yet, telling them he was up at that late hour because he was having trouble sleeping.
After the confession, the police searched for the trash bag mentioned by Stevens. They found one matching Stevens’ description on the side of the road about a mile from where the body was located. While other bags observed during their search all contained trash, this one contained only road dust and debris, and appeared to have “at one time contained something that caused it to be stretched out,” Later that same day, pursuant to a search warrant, police found similar trash bags and a Sega Genesis video game and controllers in Stevens’ home.
The body found by police under the bridge was later identified through den*906tal records as that of Zachary Snider. Also, Mr. Snider later identified the bike found with the body to be Zachary’s. The pathologist who performed the autopsy, though unable to determine the cause of death because of the state of decomposition, observed no evidence inconsistent with death by either strangulation or suffocation. He found no broken bones and no evidence of any penetrating injury to the torso or lower extremities. When asked about the potential for a natural cause of death, the pathologist replied that the tissues of the heart, lungs, liver, and kidneys available for examination showed no signs of disease. The forensic entomologist who examined insect samples found in the body and in the soil under the bridge placed the time of death sometime between noon and sunset on July 15.

Stevens v. State of Ind., 691 N.E.2d 412, 418-19 (Ind.1997) (internal citations to the record omitted). Stevens was charged with first degree murder, and trial preparations and proceedings followed. The principal issue in this appeal involves the expert testimony of a psychologist, Dr. Lawrence Lennon. Dr. Lennon did not testify at the guilt phase of the trial, only during the penalty phase and at sentencing. Stevens claims that his counsel was ineffective at both the guilt and penalty phases for retaining only Dr. Lennon, whom Stevens characterizes as an inadequate and prejudicial expert. The state court denied post-conviction relief on this basis.

To obtain habeas corpus relief in this court under AEDPA, Stevens must show that the state court’s determination was contrary to or an unreasonable application of Supreme Court precedent, or an unreasonable determination of the facts. Central to this appeal is the familiar case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate both constitutionally deficient performance and prejudice. In ineffective assistance of counsel claims, this court has explained that,

[if] a state court has denied a Strickland claim on the merits, under the AEDPA we generally review for clear error. As we noted in Holman v. Gilmore, “Strickland calls for inquiry into degrees; it is a balancing rather than a bright-line approach.... This means that only a clear error in applying Strickland’s standard would support a writ of habeas corpus.” 126 F.3d 876, 881-82 (7th Cir.1997). This is because “Strickland builds in an element of deference to counsel’s choices in conducting the litigation [and] § 2254(d)(1) adds a layer of respect for a state court’s application of the legal standard.” Id.

United States ex rel. Bell v. Pierson, 267 F.3d 544, 557 (7th Cir.2001) (emphasis added). We therefore review for clear error in the Supreme Court of Indiana’s decision.

With respect to Strickland’s performance prong, I am not “inclined to believe that [trial counsels’] performance was ineffective,” at the guilt stage as Judge Wood’s opinion suggests. Ante at 892. Nonetheless, I agree with Judge Wood that the state court did not clearly err in applying Supreme Court precedent regarding the guilt phase of the trial because Stevens was not prejudiced by his counsels’ performance. The Supreme Court of Indiana cites the correct standard to evaluate prejudice under Strickland, specifically noting that Stevens must demonstrate “that his counsels’ errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel’s *907unprofessional errors, the result would have been different.” Stevens v. State of Ind,., 770 N.E.2d 739, 746 (Ind.2002) (citing inter alia Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The Supreme Court of Indiana further clarified that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Of course, “more than a correct citation is needed to avoid a decision ‘contrary to’ clearly established federal law.” Burgess v. Watters, 467 F.3d 676, 683 (7th Cir.2006). The state court, however, proceeded to apply this standard, concluding that an alternative mental illness defense at the guilt phase “was not without its pitfalls” because this defense

would have opened the door to the admission of substantial incriminating evidence not otherwise presented during the guilt phase. This evidence included testimony of a witness that, upon the defendant’s prior release from jail onto probation for a previous conviction of child molesting, the defendant had declared that he planned to kill his next child molesting victim to avoid returning to jail.

Id. at 749; see also id. at 753. Furthermore, the Supreme Court of Indiana noted that one of Stevens’s post-conviction experts, Dr. Coons, “acknowledge[ed] that [Stevens] could appreciate the wrongfulness of his conduct when he took steps to hide Zachary’s body.” Id. at 749 n. 5. Based on this additional evidence, the Supreme Court of Indiana noted that Dr. Coons’s testimony “would have had little or no effect on the jury’s verdict....” Id.

Another piece of incriminating evidence that would have come into evidence through the additional mental health experts is a different description of the nature of the sexual encounters between Stevens and Zachary. The state trial court made a finding that the additional psychological evidence altered the nature of the sexual encounters between Stevens and Zachary. The understanding at trial had been that the molestation was “consensual,” but the testimony of Drs. Kaplan and Coons during the state post-conviction hearing reveals a different story. According to Dr. Kaplan, Zachary and Stevens were

wrestling around as play, and then [Stevens] grabbed his shorts and, well, Zachary I think hit ... Steven[s]’s penis, and then [Stevens] grabbed his shorts, pulled them down, and at that point, again, you know, he — he had then forced himself on Zachary, made him, you know, suck his penis, and ... they had sexual relations. And then after the sexual relations were concluded, Zachary told him, you know, “I’m going to tell my mother about what you did to me.” And then, again, he saw Zach as the victimizer now.

Kaplan earlier in his testimony provided the following analysis:

In [Stevens’] mind, he was a seducer of children, not a forced raper of children. So as long as he saw this as what he felt to be consensual, he didn’t see anything wrong with it. And that’s probably the greatest problem for him with the Zachary murder is that this was the first time he had forced himself on another child and forcibly had sex. And to him, that was very, very incongruent with his concept of who he was and what sexual molestation is.

The Supreme Court of Indiana did not specifically mention the different description of the sexual encounter, but never rejected the trial court’s findings and twice stated that additional mental illness evidence “would have opened the door to the admission of substantial incriminating evidence not otherwise presented during the *908guilt phase.” Stevens, 770 N.E.2d at 753; see also id. at 749. In sum, the state court’s determination that Stevens did not suffer prejudice from his counsels’ performance at the guilt phase is not contrary to or an unreasonable application of Supreme Court precedent. I therefore agree with Judge Wood that Stevens is not entitled to habeas relief from his conviction.

Proceeding to the penalty phase, just as the state court did not err in upholding the conviction, the state court, similarly did not err in denying relief from the death penalty sentence. I therefore respectfully disagree with Judges Wood and Ripple regarding habeas relief from the death penalty sentence.

The Supreme Court of Indiana concluded that the trial attorneys “investigated the mental health issues through the use of Dr. Lennon.” Stevens, 770 N.E.2d at 755. The court further quoted with approval the trial court’s finding that “ ‘[djefense counsel’s investigation of Petitioner’s mental health and prior use of drugs was reasonable’ ” and that defense counsel pursued a “ ‘strategy of portraying the petitioner as a passive victim of abuse’ ” at the penalty phase. Id. at 754. Furthermore, the state trial court found that based on the fuller description of Stevens’ relations with Zachary that the new experts offered, “[tjhe jury would not consider such a violent, voracious predator as someone deserving a penalty less than death.” See Stevens Supp.App. at 65.

In his penalty phase testimony, Dr. Lennon testified regarding Stevens’s emotional immaturity and the impact of abuse and his mother’s use of drugs and alcohol on Stevens’s development. This mitigation testimony was in addition to testimony from a variety of Stevens’s relatives and individuals who could testify about and provide documentation regarding his deplorable childhood. In this case, the Supreme Court of Indiana found that Stevens’s counsel “presented various witnesses and evidence showing various mitigating circumstances including his parents’ divorce and his living in the homes of different people while growing up, the defendant’s troubled childhood including suffering childhood sexual abuse, his adolescent alcohol and drug use and diagnoses of passive personality, his depression and suicide attempts, and his poor academic performance.” Stevens, 770 N.E.2d at 753; cf. Woods v. McBride, 430 F.3d 813, 825 (7th Cir.2005) (noting that “[cjounsel in this case actually presented mitigation evidence during the penalty phase rather than a half-hearted attempt to deflect culpability from the defendant.”) (citing Wiggins v. Smith, 539 U.S. 510, 515-18, 526, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). In the context of challenging a death penalty sentence, “the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. The prosecutors argued for three aggravating factors warranting the death penalty, which the jury each found to be proven beyond a reasonable doubt: that the defendant committed the murder by intentionally killing the victim while committing child molestation, that the victim was under the age of twelve, and that the defendant was on probation after a felony conviction. The Supreme Court of Indiana was “not persuaded that the evidence in the record unavoidably points towards an opposite result” from the state trial court’s conclusion that counsel were not ineffective. Stevens, 770 N.E.2d at 755. Under the deferential standard of AEDPA, this is not a decision that is contrary to or an unreasonable application of Supreme Court precedent.

*909It is true that Dr. Lennon failed to follow counsels’ instructions not to prepare a report, responded to the prosecutor’s unexpected question regarding necrophilia, and discussed his unusual form of therapy. He was not a very good witness. Yet, his performance at the penalty phase (his first testimony in the case, since he did not testify at the guilt phase), does not render Stevens’s counsels’ performance ineffective. More importantly, the Supreme Court of Indiana’s conclusion that counsel performed reasonably is not an unreasonable application of Supreme Court precedent. Therefore it does not follow that the jury or judge “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death” if faced with additional expert testimony presenting the diagnosis of disassociation. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Having reviewed the videotaped confession as well as the record, I do not find that the state court’s determination was unreasonable. Consequently, I respectfully dissent from granting habeas relief on the death penalty sentence.

. [Footnote in original.] Zachary's bike was already in the garage because, Stevens stated, "whenever he comes over I have him put his *905bike in the garage [...] so [] nobody will see his bike there.”