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Stephenson v. Levenhagen

United States District Court, N.D. Indiana

September 30, 2014

JOHN M. STEPHENSON, Petitioner,
v.
MARK LEVENHAGEN, Respondent.

OPINION AND ORDER

THERESA L. SPRINGMANN, District Judge.

This matter is before the Court on remand following the Mandate from the Seventh Circuit Court of Appeals [ECF No. 70]. The Petitioner, John M. Stephenson, filed his First Petition for Writ of Habeas Corpus [ECF No. 19] on February 4, 2008. The State filed its Response [ECF No. 28] on August 8, 2008. On September 2, 2008, the Petitioner filed a Motion for Summary Judgment [ECF No. 39]. The State filed a Response [ECF No. 44] on December 3, 2008, to which the Petitioner filed a Reply [ECF No. 45] on December 15, 2008. After a Hearing on March 5, 2009 [ECF No. 49], the Court on July 1, 2009 filed an Opinion and Order [ECF No. 50] granting the Petitioner's Motion for Summary Judgment, and conditionally granting the Great Writ on Ground 1. The State appealed, and on January 24, 2011, the Seventh Circuit Court of Appeals filed a Mandate [ECF No. 70] Reversing the judgment of this Court and Remanding for consideration of the Petitioner's remaining claims. The Petitioner filed a Traverse to and Motion in Support of the Habeas Petition [ECF No. 81] on April 3, 2012, and the State filed a Response [ECF No. 85] on July 6, 2012. The Petitioner filed a Sur-reply [ECF No. 86] in support of his petition on September 7, 2012.

FACTUAL AND PROCEDURAL BACKGROUND

The Supreme Court of Indiana has published two opinions related to this case:

Stephenson v. State, 742 N.E.2d 463 (Ind. 2001) ( Stephenson I ), and Stephenson v. State, 864 N.E.2d 1022 (Ind. 2007) ( Stephenson II ). In addition, this Court issued a decision granting the Petitioner's motion for Summary Judgment and conditionally granting the Great Writ solely on Ground 1, a claim of ineffective assistance of counsel arising from the failure of Petitioner's trial counsel to object to a stun belt being placed on the Petitioner throughout his trial and sentencing. Stephenson v. Levenhagen, 2009 WL 1886081 (N.D. Ind., July 1, 2009), rev'd and remanded sub nom. Stephenson v. Wilson, 619 F.3d 664 (7th Cir. 2010) ( Stephenson III ). The Court of Appeals for the Seventh Circuit reversed this Court's adjudication of Ground 1, holding that while it was deficient performance not to object to the State's use of a stun belt, the Petitioner was not prejudiced at the guilt phase of his trial. Stephenson v. Wilson, 619 F.3d 664 (7th Cir. 2010) ( Stephenson IV ). The Court of Appeals remanded the case to this Court with instructions to rule on each of the Petitioner's remaining claims. The Court of Appeals also instructed this Court to decide whether the deficient performance of trial counsel prejudiced the Petitioner at his sentencing hearing, at which he was sentenced to death. Id.

In its opinion denying the Petitioner's direct appeal, the Indiana Supreme Court laid out the facts and prior history of the case.

In the early evening on March 28, 1996, Defendant John Matthew Stephenson and his friend, Dale Funk, drove around Warrick County. The two ended up at the residence of Brian Mossberger, a friend of the Defendant and an acquaintance of Funk. While there, Defendant and Funk shot off rounds of firearms with Defendant shooting his own SKS assault rifle. Defendant and Funk left to go target shooting at a railroad crossing on Red Brush Road located near Mossberger's home. Afterwards, Defendant, who was still accompanied by Funk, drove to the mobile home of Brandy Southward and her fiance, Troy Napier. According to Funk's testimony, they both got out of the car and walked around the mobile home. Defendant yelled for someone but after no one answered, Funk returned to the car and Defendant proceeded toward the mobile home. A few moments later, Funk observed Defendant walk out the front door carrying a splitting maul.
Defendant and Funk returned to Mossberger's house. Shortly thereafter, a pick-up truck briefly pulled into Mossberger's driveway. John "Jay" Tyler was the driver of the truck and his wife, Kathy Tyler, and friend Brandy Southard were the passengers. Mossberger testified that Defendant said, "There goes Jay and I've got to catch him." (R. at 24, 669.) Funk testified that Defendant said, "If you're coming, come on." (R. at 23, 969.)
The evidence as to what happened next comes solely from Funk's testimony at trial. Funk testified that Defendant began chasing the Tyler truck through Warrick County rural roads. The Tyler truck stopped at the intersection of Eble and Youngblood roads and Defendant also stopped his car. The driver-side door of the truck opened slightly, and Jay leaned out of the truck to look at Defendant. At that point, Defendant grabbed his SKS assault rifle, exited the car, and began firing several shots at the Tyler truck. Defendant got back into the car, drove around a corner, stopped his car and got out. Defendant walked towards the Tyler truck and returned a few minutes later. Defendant threatened Funk stating, "You breathe a word of this and I'll kill you." (R. at 23, 980-80.)
Defendant and Funk then drove directly back to Mossberger's house. Mossberger testified that Defendant held a knife with "red smears" on the blade, by his (Defendant's) face and said, "Jay, Kathy, and Brandy are no more." (R. at 24, 674-75.) Mossberger also testified that Defendant washed his knife in the kitchen sink and that Defendant instructed him to "do something with the SKS; get rid of it; make it gone." (R. at 24, 678.) Funk offered similar testimony, stating that he observed Defendant "hand[] the gun to [Mossberger]; told him to get rid of it." (R. at 23, 982.) The next day, Mossberger buried the SKS assault rifle and ammunition in the woods.
Early Friday morning, March 29, police officers discovered the Tyler truck. Inside the truck, the police officers found victims John "Jay" Tyler, Kathy Tyler, and Brandy Southard dead from gunshot and stab wounds. The police officers also discovered bullet holes in the truck and found spent shell casings scattered across the width of Youngblood Road. Forensic testing revealed that the fatal bullets matched those fired from the SKS assault rifle belonging to Defendant. The spent shell casings matched the ammunition discovered in Southard and Napier's mobile home. Other testing revealed Funk's shoe prints were at the mobile home, directly below the broken window. Although the knife used in the killings was not recovered, Defendant owned a similar knife that could have caused the victims' injuries. On that Friday night, Defendant contacted police about the murders and gave a written statement indicating that Brandy Southard had received a threat from one Jimmy Knight.
On Saturday, March 30, while at home, Defendant voluntarily gave a taped statement to Officers Michael Hildebrand and Gary Gilbert and consented to a police search. In his taped statement, Defendant admitted to having seen and talked to the victims on March 28th at around 9:30 or 10:00 p.m. at a local Circle S store. Defendant also stated that afterwards, he went to Mossberger's house and then went straight home.
On Sunday, March 31, Mossberger retrieved the SKS assault rifle and ammunition, placing the SKS in the house and the ammunition in his garage. Police officers arrived at Mossberger's house to question him, and he explained the events that occurred on the day of the killings. Mossberger also showed the officers the SKS assault rifle, but not the ammunition. The same day, Mossberger directed the officers to Funk's apartment in Hatfield. Police officers questioned both Mossberger and Funk and took Funk into custody for further questioning at the Warrick County Security Center. Funk was released on or about April 1. On April 3, 1996, Defendant surrendered himself to the Owensboro Police Department.
The State charged Defendant with burglary, theft, and three counts of murder of each of Jay Tyler, Kathy Tyler, and Brandy Southard. The State also sought the death penalty, alleging as aggravating circumstances that Defendant intentionally discharged a firearm from a vehicle, committed at least one of the murders by lying in wait, and committed multiple murders.
The trial commenced on September 23, 1996. On May 8, 1997, after deliberating for approximately three hours, the jury found Defendant guilty of burglary, theft, and all three counts of murder. On May 19, 1997, the trial court conducted the penalty phase and the jury recommended that the death penalty be imposed based upon the multiple murder aggravator. The trial court held a sentencing hearing on June 16, 1997. The trial court followed the jury's recommendation and sentenced Defendant to death.

Stephenson I at 470-72 (Ind. 2001) (brackets in original, footnotes omitted). Stephenson then sought and was denied a Writ of Certiorari to the United States Supreme Court. Stephenson v. Indiana, 534 U.S. 1105 (2002).

Following the conclusion of his direct appeal, Stephenson, by appointed counsel, filed a petition for postconviction relief. (App. to Br. of Pet'r-Appellant at 144-58, Stephenson v. State, 87S00-0106-PD-285). That petition was denied, and he appealed to the Supreme Court of Indiana. In its opinion affirming that denial, the Indiana Supreme Court reviewed and analyzed the ineffective assistance of counsel claim that is the subject of this Opinion. After his petition for rehearing was denied by the Indiana Supreme Court, he sought and was denied a Writ of Certiorari to the United States Supreme Court. Stephenson v. Indiana, 552 U.S. 1314 (2008) (denying petition for writ of certiorari). He then initiated this habeas corpus proceeding.

STANDARD OF REVIEW

In a Habeas Corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct" unless the petitioner is able to rebut that presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). In evaluating a legal determination made by a state court, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that

when a habeas petitioner's claim has been adjudicated on the merits in state-court proceedings, a federal court may not grant relief unless the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result. A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner.

Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted). Additionally,

[f]or purposes of 28 U.S.C. § 2254(d)(1), clearly established law as determined by this Court refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision. We look for the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.

Yarborough v. Alvarado, 541 U.S. 652, 660-61(2004) (quotation marks and citations omitted). Furthermore, the United States Supreme Court has made clear that it is not for this Court to independently decide the merits of the Petitioner's legal arguments. Specifically, the Supreme Court noted the following:

As we have explained, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied a [United States] Supreme Court case incorrectly. Rather it is the habeas applicant's burden to show that the state court applied [that case] to the facts of his case in an objectively unreasonable manner.

Price v. Vincent, 538 U.S. 634, 641 (2003) (internal quotation marks, citations, and brackets omitted).

ANALYSIS

A. Ineffective Assistance of Counsel: Failure to Investigate and Present Potentially Mitigating Evidence

As a ground for Habeas relief, the Petitioner alleges ineffective assistance of counsel due to his trial counsel failing to sufficiently investigate and present potentially mitigating evidence during the sentencing phase of his trial, which ended with a sentence of death. To prevail on his ineffective assistance of counsel claim, the Petitioner must show the following two things: first, that his counsel's performance was deficient, and second, that he was prejudiced by his counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is more than just an isolated mistake. To show deficient performance, the Petitioner must establish "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the [Petitioner] by the Sixth Amendment." Id. The measure of attorney performance is reasonableness under prevailing professional norms. Id. at 688. When the alleged ineffectiveness involves a decision not to pursue certain avenues of investigation, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances." Id. at 690-91. In determining whether trial counsel's performance was deficient, the Court "recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.

To establish prejudice, the Petitioner must show "that counsel's errors were so serious as to deprive the [Petitioner] of a fair trial, a trial whose result is reliable." Id. at 687. This requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability means "a probability sufficient to undermine confidence in the outcome." Id.

The Petitioner contends that his trial counsel's failure to present mitigating evidence at the sentencing phase of his trial was deficient performance. The Petitioner also contends that this decision should not be viewed as a legitimate strategic decision, because the investigation into potential mitigating evidence was so inadequate as to be unreasonable according to prevailing professional norms. Furthermore, the Petitioner argues that, if not for this error, there is a reasonable probability that the jury would have sentenced the Petitioner to life in prison rather than death.

The Indiana Supreme Court adjudicated this claim on the merits, affirming the postconviction court's conclusion that, while the mitigating evidence "could have been more thoroughly developed and investigated, " the Petitioner's trial counsel was not deficient in handling the sentencing phase of the Petitioner's capital murder trial. Stephenson II, 864 N.E.2d at 1045-46. That adjudication is entitled to deference under the AEDPA, which provides that a state court's adjudication of the merits of a habeas petitioner's claim will not be disturbed unless it "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established federal law "if it applies a rule that contradicts the governing law set forth in [United States Supreme Court] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the United States Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005). A state court adjudication involves an unreasonable application of clearly established federal law "if the state court applies [the United States Supreme Court's] precedents to the facts in an objectively unreasonable manner." Id. A state court's adjudication of a claim on the merits may also be disturbed if it involves an unreasonable determination of the facts. 28 U.S.C. §2254(d)(2).

1. Factual and Procedural Background

a. The Alleged Failure to Investigate and Failure to Present Mitigating Evidence

In preparing the defense's strategy for the sentencing hearing, one of the Petitioner's attorneys was tasked with preparing for the sentencing phase of the trial. In addition, a mitigation specialist was employed to help with the investigation into the Petitioner's life. The Petitioner's counsel in charge of this investigation testified at the postconviction hearing that the mitigation investigation began before the jury began to hear evidence, and most likely before voir dire (though he admitted he could not remember the latter with certainty). (PC 418.)[1] Counsel testified that he traveled to Beaumont, Texas, and interviewed a number of people who had known the Petitioner as a child. (PC 431.) In the course of this investigation, he learned that the Petitioner had suffered from enuresis, or bed-wetting, at a young age, and that this was brought on by psychological trauma. ( Id. ) He also learned about the Petitioner's brushes with the law as a young adult.

Counsel interviewed the Petitioner's mother, Betty Ford Weeks, by phone. (PC 572.) Weeks testified at the postconviction hearing that the Petitioner's youthful brushes with the law in Texas were discussed during the phone conversation. She testified that she told counsel about an incident where the Petitioner, then 18 years old, had pled guilty in a Louisiana court to burglary for breaking into a game room and stealing $43.00 from a game machine. (PC 563, 573.) She also testified that she told the Petitioner's counsel about an incident where the Petitioner was test driving a car that two of his coworkers at the time had offered to sell him for $1, 000. Weeks recalled that the Petitioner was pulled over while test driving the car, and the car turned out to be stolen. (PC 574.) On another occasion, the Petitioner had thrown a party at his parents' house when they were away. (PC 566.) Marijuana and alcohol were consumed by those attending the party. (PC 567.) A girl who had been at the party later cashed $600.00 in checks stolen from Weeks' bedroom, and this was how the Petitioner's parents learned what had happened. ( Id. ) This incident precipitated the Petitioner's commitment to a drug treatment facility at the insistence of his parents, where he remained only days before checking himself out. (PC 564, 566-67.)

While Weeks testified that she had spoken with counsel about the Petitioner's substance abuse and criminal history, she also testified that, to the best of her recollection, counsel did not ask detailed questions about the Petitioner's childhood, or what the Petitioner was like as a person. (PC 567.) Weeks also testified that she had suffered a brain aneurism in 1995, and that it had affected her short term memory. (PC 569, 572.) She stated that she wanted to come to Indiana to attend the trial, but that counsel told her that she could not watch the trial, because she was a potential witness. (PC 568.) If she had been called to testify at the sentencing hearing, Weeks would have testified that the Petitioner was considerate of others, and that he often helped others without being asked. (PC 567.)

Trial counsel interviewed the Petitioner's father, Billy Lynn Stephenson, in Beaumont, Texas. (PC 418.) He testified that counsel told him he would not be able to attend the trial, because he was a potential witness. (PC 582.) Though he was never called to testify at the sentencing hearing, he would have testified that the Petitioner is "a caring individual, " and that he didn't think his son could have committed the murders. (PC 584.)

The Petitioner's younger sister, Linda Gayle Jackson, testified at the postconviction hearing. She testified that she did not have many memories of the Petitioner from when they were children. (PC 589.) As an adult, however, the Petitioner lived with her for a time in Virginia in late 1988 and early 1989. ( Id. ) She testified that the Petitioner was "easy to get along with" and that he went to work every day. (PC 590.) She also testified that she suspected he was drinking during that time, but that he "never brought it home." ( Id. ) The Petitioner's mitigation specialist interviewed Jackson by phone. (PC 594.) Jackson testified that he asked her "a few" questions about the Petitioner, but "[n]othing really specific." (PC 595.) Jackson testified that she would have come to the sentencing hearing and testified had she been asked, but that she was not asked. (PC 594.)

The Petitioner's older sister, Rhonda Sue LaFleur, also testified at the postconviction hearing. LaFleur testified that both the mitigation specialist and Petitioner's counsel contacted her. (PC 605.) The conversation lasted about thirty minutes. ( Id. ) She testified that she could not recall what was discussed, because she was focused on nursing school at the time. (PC 606.) She testified that she did remember being told that she should not come to Indiana during her summer break, because she was a potential witness and therefore would not be able to watch the trial. ( Id. ) LaFleur testified that she would have been willing to testify on the Petitioner's behalf at the sentencing hearing. (PC 607.)

Dr. David Stephenson, the Petitioner's older brother, also testified at the postconviction hearing. He testified that the Petitioner had lived with him in Newburgh, Indiana, immediately following the Petitioner's release from prison in Virginia. (PC 611.) Dr. Stephenson testified that he had spoken with many people, including the Petitioner's trial counsel. (PC 621.) Dr. Stephenson mentioned that he learned details of the Petitioner's life from the Petitioner's counsel of which he had previously been unaware. ( Id. ) For example, he testified that counsel "had done his research and obtained some medical records" showing that the Petitioner had been treated for an abnormally small bladder. ( Id. ) Dr. Stephenson also stated that his interview with trial counsel was less thorough than his interview with postconviction counsel. (PC 622.)

Dr. Stephenson testified about the Petitioner's upbringing and childhood in some detail at the postconviction hearing. He testified that the Petitioner was in and out of trouble from kindergarten on. (PC 614.) He testified that he believes the Petitioner suffered from undiagnosed and untreated attention deficit disorder. (PC 613.) He also testified that the Petitioner's bed-wetting continued into junior high school, and that this made the Petitioner a frequent target of bullying. (PC 614.) He related an incident that occurred in the home, in which he remembered the Petitioner crying as he was "grabbed out of bed and thrown into a cold bath" after wetting the bed. (PC 615.) Dr. Stephenson testified that their parents would say that he (Dr. Stephenson) was the smart one in the family, in implicit contrast to his younger brother, the Petitioner. (PC 614.) Dr. Stephenson testified that the Petitioner had always had trouble fitting in, and was consequently desperate for approval. ( Id. ) This desire for acceptance and approval led to the Petitioner falling in with the "wrong crowd." ( Id. )

Dr. Stephenson also testified about the Petitioner as an adult. He testified that the Petitioner worked in construction while he lived with Dr. Stephenson, and that people for whom the Petitioner had done work raved about what good work he did. (PC 618.) Dr. Stephenson also testified about the Petitioner's drinking problem, stating that the Petitioner was a binge drinker. ( Id. ) He testified that he had discussions with the Petitioner about his drinking. ( Id. ) He specifically recalled an occasion when he told the Petitioner that drinking was always the underlying cause when the Petitioner got into trouble. ( Id. ) According to Dr. Stephenson, the Petitioner thought for a moment, and then responded by saying, "[y]eah, you're right." ( Id. ) The Petitioner cut down on drinking "for a while" after that conversation. (PC 615.) Dr. Stephenson also testified that he warned the Petitioner about the consequences of owning a gun as a convicted felon still on parole. (PC 619.)

In addition to family, there was a witness, Charles William Carter, who would have testified that the Petitioner saved him from drowning in the Ohio River. (PC 456-57.) Carter's wife wrote a letter to the Petitioner's trial counsel explaining what the Petitioner had done for her husband. (PC 460.) Carter testified that he would have been willing to testify about the incident at the Petitioner's sentencing hearing if he had been asked to do so. (PC 460.)

The Petitioner's trial counsel also learned of potentially devastating bad character evidence that the State possessed and intended to use if the defense opened the door. For instance, the Petitioner had a prior conviction in Virginia for shooting a firearm at an occupied dwelling. He once struck a man in the head with a shovel outside a bar in Newburg, Indiana, though he was only arrested and not convicted in connection with that incident. The Petitioner's ex-wife testified at the postconviction hearing that the Petitioner had been excessively controlling and physically abusive, even putting her in the hospital once. (PC 638.) A defense attorney would consider these prior bad acts damaging to his client at a capital sentencing. Shooting into an occupied dwelling involves violence with a firearm, and shows recklessness with respect to human life. The crime of conviction in the present case was the murder of three people with a firearm. Domestic violence severe enough to require hospitalization of the Petitioner's ex-wife, and striking a man in the head with a shovel show a proclivity for violence.

On the other hand, the Petitioner's postconviction counsel uncovered mitigation evidence that trial counsel had not discovered. Some of it would have tended to mitigate the damage of some of the Petitioner's prior convictions and bad acts. For example, the Petitioner's lawyer in Virginia, where the Petitioner was convicted of shooting into an occupied dwelling, would have testified that Stephenson had been harassed and threatened by people in his neighborhood, and that he had arrived home, intoxicated, to find that his car window had been broken. Counsel also believed it was unclear whether the Petitioner or his friend had fired the shot, though it is doubtful that the trial judge would have permitted the Petitioner to re-litigate his prior conviction at the sentencing hearing. At any rate, the Petitioner's trial counsel never spoke to the attorney who represented the Petitioner in the Virginia case, instead relying on a file given to him by the prosecutor. (PC 452.) In addition, a witness to the bar fight involving the Petitioner could have testified that the man the Petitioner hit with a shovel in the bar parking lot had first claimed to have a gun and threatened to shoot the Petitioner. The Petitioner's trial counsel never spoke to that witness either. ( Id. ) The Petitioner argues that this evidence, had his trial counsel discovered it, would have so altered the balance as to make it unreasonable for counsel to forgo presentation of the other mitigating evidence out of fear of opening the door to those prior bad acts.

Another witness, Brad Schumacher, would have testified that the Petitioner had stopped and helped a stranded motorist whose car had broken down by the side of the road. Schumacher worked at a drug store. (PC 648.) One of his customers had seen the Petitioner walk in, and asked who he was. ( Id. ) The customer told Schumacher that her car had broken down on the side of the road, and that the Petitioner had stopped to help her, devising a temporary fix using pieces of a tin can that allowed her to drive the vehicle to a mechanic for more permanent repairs. ( Id. ) The motorist had offered to pay the Petitioner for his assistance, as he spent over an hour working on her car, but the Petitioner refused to accept any money. ( Id. )

Other undiscovered and potentially mitigating evidence would have shed more light on the Petitioner's childhood. For example, two mental health experts testified at the postconviction hearing. Dr. Michael Ryan also examined the Petitioner and testified at the postconviction hearing. Dr. Ryan testified that, in his opinion, the Petitioner did not have a learning disability. (PC 695.) In Dr. Ryan's opinion, the Petitioner suffered from "a severe psychiatric disorder which interferes with his memory and cognitive abilities." (PC 696.) Dr. Ryan testified that the Petitioner's cognitive and memory problems, which he directly observed when he examined the Petitioner, could be caused either by long-term substance abuse, or emotional issues, or both. (PC 697.) Because Dr. Ryan is not an expert on substance abuse, he recommended that the Petitioner's postconviction counsel consult an expert in that field and counsel did so. (PC 698.) He also testified about the contents of the Petitioner's school records, which trial counsel had tried, but failed, to locate. He noted that the school records indicate that the Petitioner was a very troubled child, with few friends, and prone to frequent disruptive and oppositional behavior in school. (PC 703.) He testified that the school records indicate that the Petitioner would exhibit angry outbursts over minor stresses. (PC 701.) Dr. Ryan testified that he saw evidence in the Petitioner's school records that the Petitioner had been expelled from kindergarten, which, he noted, is extremely rare. (PC 706.) He described the Petitioner's family life as "dysfunctional." (PC 703.) Dr. Ryan also testified that he saw no evidence in the school records that the Petitioner ever received treatment or therapy for his issues, although it was not possible to be sure from the school records whether he was given medication. (PC 703.)

Dr. Robert L. Smith, an expert in chemical dependency, testified at the postconviction hearing about the Petitioner's alcoholism and drug abuse, which began when the Petitioner was just twelve or thirteen years old. (PC 667.) Dr. Smith testified about the Petitioner's short time in rehabilitation, during which the Petitioner was not effectively prevented from continuing his drug abuse. (PC 668.) Dr. Smith believes that this was a major reason for the ineffectiveness of the treatment. ( Id. ) He also testified concerning the reasons a person might begin abusing substances and how an addiction develops. Specifically, he testified about the Petitioner's home life, and the inadequacy of his support structure. (PC 665-66.) Furthermore, Dr. Smith commented on the Petitioner's difficulty making connections with others, apart from connections that revolved around substance abuse. He also opined that the Petitioner suffers from a mixed personality disorder. Dr. Smith also noted that the Petitioner suffered several traumatic events in his childhood, including his mother's long battle with thyroid cancer beginning when the Petitioner was eight years old, a history of beatings by both of his parents with a belt or switch, and multiple instances of being thrown into a tub of cold water after wetting the bed. (PC 665-66.) In addition, the Petitioner had told Dr. Smith that he had been fondled by a female babysitter at the age of twelve, and that at fifteen he had been forced by an adult male to engage in oral sex. (PC 666.)

Dr. Smith did testify about the Petitioner's criminal history and abusive behavior toward his ex-wife, explaining how his personality disorder and substance abuse contributed to the incidents of abuse. That criminal history, however, does not appear to have been the basis for Dr. Smith's expert opinion. Instead, the diagnosis was offered as an explanation of the incidents, rather than the incidents being pointed to as evidence supporting Dr. Smith's diagnosis. The diagnosis itself was based on an actual examination and interview of the Petitioner, during which Dr. Smith administered several generally accepted psychological tests. Dr. Smith also interviewed the Petitioner's family members about his childhood. It is important to note that at the postconviction stage of the proceedings, postconviction counsel specifically asked about the Petitioner's criminal history. If trial counsel had offered this testimony at trial or at the sentencing stage, the questions could have been tailored to avoid discussion of criminal history, as the Petitioner's criminal history was not the basis for Dr. Smith's diagnosis.

Dr. Smith also addressed the Petitioner's confession in the case. Specifically, he testified regarding the Petitioner's confusion about the timeline of events the night of the murder. Police noted that the Petitioner was drinking when he made the statement, but that he did not appear intoxicated. Dr. Smith explained that years of alcohol abuse can cause many classic outward signs of intoxication to be absent, even when the subject is significantly cognitively impaired. That in turn could potentially explain the inaccuracies in the Petitioner's statement to police, which were used against the Petitioner at trial. But while Dr. Smith testified that intoxication might have been the cause of the Petitioner's inaccurate statements to police regarding the timeline of the night of the murders, he also testified that nothing about the Petitioner's mental problems would rule him out as having committed the murders. (PC 690.)

b. The Indiana Supreme Court's Adjudication of This Claim

The Indiana Supreme Court considered and rejected this claim of ineffective assistance of counsel on the merits. The Petitioner argues that the Indiana Supreme Court applied Strickland unreasonably in concluding that trial counsel's mitigation investigation and his presentation at the sentencing phase were exercises of reasonable professional judgment. There is no question that Strickland is clearly established federal law as determined by the United States Supreme Court. However, when a claim has been adjudicated on the merits by the state courts, "a federal habeas court may not issue the writ simply because the court concludes that the relevant state court decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor, 529 U.S. 362, 410-11 (2000). For the Petitioner to be entitled to habeas relief on this claim, the Court must find that the Indiana Supreme Court's adjudication of the claim was not merely erroneous, but objectively unreasonable.

The Indiana Supreme Court found that the record supported the postconviction court's conclusion that "[trial] counsel's decision not to open up [the Petitioner's] background to allow [prior bad act] evidence to be presented to the jury by the prosecution during the death penalty phase of the trial cannot be said to be unreasonable or irrational, or ineffective assistance of counsel." Stephenson II, 864 N.E.2d at 1045. The Indiana Supreme Court was persuaded that "placing the Petitioner's character in issue would open the door to rebuttal evidence of [the Petitioner's] significant criminal history." Id. It also rejected the Petitioner's argument that the United States Supreme Court's decision in Rompilla v. Beard, 545 U.S. 374 (2005), required a reversal of the postconviction court's ruling. The Indiana Supreme Court distinguished Rompilla on the ground that Rompilla involved a failure to investigate whether the defendant's prior convictions really were of such a nature as to make the defendant eligible for the death penalty in the first place, while in this case the best that any amount of investigation of the Petitioner's prior convictions could have accomplished would have been to soften the blow of the extensive criminal history evidence that would have been introduced to rebut any good character evidence the defense might have proffered. Id. As the Indiana Supreme Court put it, "[d]efeating an eligibility aggravator avoids the death penalty. Establishing some mitigating character evidence does not close a door, and might open one." Id. at 1046.

c. Allen v. State

The Petitioner cites Allen v. State, 749 N.E.2d 1158 (Ind. 2001), in support of his ineffective assistance claim. In Allen, the petitioner, after being convicted of murder and sentenced to death, sought postconviction relief and the Indiana Supreme Court issued a decision on his petition. Id. Allen argued that his counsel was ineffective during the penalty phase of his trial because he did not present evidence regarding Allen's family history, abuse during incarceration at the Indiana Boys School (IBS), and testimony from experts analyzing that evidence. Id. at 1171. During the postconviction hearing, Allen presented testimony from three sisters and a close friend regarding the challenges of his upbringing and his role as protector of the family. Id. He also presented the testimony of former IBS employees and men who were detained at IBS at the same time as the Petitioner. Id. at 1172. Finally, he presented testimony of mental health professionals that detailed the difficulty of the petitioner's childhood and how that might have affected his behavior later in life. They also diagnosed him as having mental disorders and found that he had a low level of intelligence. Id.

Allen's counsel testified during a postconviction hearing that his main goal during the penalty phase was to keep the jury from learning about his client's criminal history, which included eight convictions including numerous burglaries and robberies of elderly women. Id. The criminal history also included a voluntary manslaughter conviction that involved circumstances similar to the facts of the case he was appealing. Id. The Indiana Supreme Court found that "evidence of prior crimes became admissible when they were relevant to rebut a trait of good character that the defendant placed into evidence." Id. at 1173. That court held that trial counsel's performance was not deficient for not presenting the testimony regarding family history, because presenting such evidence would have opened the door to the criminal history. Id. The court also held that presenting evidence of abuse suffered while incarcerated would open the door to questions about the reason for his incarceration, and that this in turn would open up the entire criminal history, lest the jury mistakenly infer that there was no criminal history apart from what they were told. Counsel therefore was not deficient for choosing not to present that evidence. Id. at 1174.

With regard to the testimony of three mental health experts, the court evaluated each expert individually. Id. Trial counsel properly avoided using the testimony of a social worker regarding Allen's childhood development, because it was based on the same good character testimony of friends and family that would have opened the door to criminal history. Id. The court also found that the testimony of a forensic psychologist, Dr. Mark Cunningham, regarding Allen's potential for committing a violent act while in prison, was reasonably avoided for strategic reasons. His testimony necessarily would have relied on Allen's previous conduct while incarcerated, which would have opened the door to his previous convictions. Id.

The court did conclude, however, that the postconviction court improperly found that the testimony of Dr. Robert Heilbronner, a neuropsychologist, regarding the Allen's mental health would have opened the door to criminal history evidence. Id. Dr. Heilbronner diagnosed several brain dysfunctions that could limit Allen's ability to control his behavior. Id. at 1174. The Indiana Supreme Court held that "[t]here is no nexus between Allen's mental health status and his criminal history." Id. at 1175. The court nevertheless determined that Allen was not entitled to relief, because he had not shown that failure to present the evidence was constitutional error. Id. The court also found that the trial judge had considered any evidence of mental retardation and thus the issue had already been litigated. Id.

While it is important to note that Allen was decided several years after the completion of the Stephenson trial, it remains useful because it does not represent a change or shift in the law. Instead, it simply provided an application of the law that is particularly analogous to the factual situation in this case. The requirement of a nexus between specific prior bad acts of a defendant to the particular mitigation evidence being offered was not a new principle of law in the Allen decision. See, e.g., Brown v. State, 577 N.E.2d 221, 232 (Ind. 1991) (noting that once an accused offers evidence of good character, the door is opened to evidence of specific misconduct in rebuttal). The usefulness stems from application of this principle in Allen to mental health mitigation evidence. As will be made clear, even though the Petitioner's counsel did not have the benefit of reading the Allen decision at the time of the Petitioner's trial, he still made the error of treating all potentially mitigating evidence as opening the door to the Petitioner's bad acts. As was the case at the time of the trial and as Allen makes abundantly clear, not all potentially mitigating evidence is created equal.

2. Performance and Prejudice Under the Strickland Test

Under Strickland, attorney performance is measured by a standard of reasonableness under prevailing professional norms. 466 U.S. at 687. A decision not to pursue a given avenue of investigation is to be reviewed for reasonableness considering all the circumstances. Defense attorneys are entitled to a strong presumption that they exercised reasonable professional judgment. Id. at 690-91. To establish prejudice, the Petitioner must show "that counsel's errors were so serious as to deprive the [Petitioner] of a fair trial, a trial whose result is reliable." Id. at 687. This requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability means "a probability sufficient to undermine confidence in the outcome." Id. Notably, Indiana law allows the introduction of criminal history evidence to rebut mitigation evidence only if there is a nexus between the mitigation evidence and the criminal history. Allen v. State, 749 N.E.2d 1158, 1175 (Ind. 2001); Brown v. State, 577 N.E.2d 221, 232 (Ind. 1991) (noting that once an accused offers evidence of good character, the door is opened to evidence of specific misconduct in rebuttal). The Petitioner's arguments focus on trial counsel's lack of investigation into potential mitigating evidence, failure to present evidence that the Petitioner had once saved a drowning man, and failure to present evidence of the Petitioner's difficult childhood and mental health issues.

a. Lack of Investigation

The Petitioner's complaints regarding a lack of investigation by trial counsel focus on counsel's failure to locate and present numerous witnesses who would have been willing to testify in support of the Petitioner's good character. The Indiana Supreme Court, however, determined that counsel chose not to present character evidence, fearing it would open the door to damaging criminal history evidence, which included a conviction for shooting a firearm at an occupied dwelling, an arrest for allegedly striking a man in the head with a shovel, and alleged physical abuse of his ex-wife. (PC 638.) The Petitioner asserts that additional investigation by trial counsel would have raised doubts regarding the precise events surrounding several of the incidents in the Petitioner's criminal history. Specifically, the Petitioner argues that a witness would have testified that the Petitioner's friend, and not the Petitioner himself, pulled the trigger in the case that led to a conviction in Virginia. Another witness would have testified that the Petitioner was threatened and provoked in the incident where he was charged with assault for striking a man with a shovel. It seems unlikely that such attempts to cast doubt on the validity of the Petitioner's prior arrests and convictions would have persuaded the jury; the Petitioner did, after all, plead guilty to shooting a firearm into an occupied dwelling. And counsel cannot be faulted for concluding that presenting evidence of ...


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