Argued September 17, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 4174 -- Matthew F. Kennelly, Judge.
For Anthony B. Mertz, Petitioner - Appellant: Geneva Lynette Penson, Attorney, Law Office of Geneva L. Penson, Llc, Aurora, IL.
For TARRY WILLIAMS, Warden, Respondent - Appellee: Erin O'Connell, Attorney, Office of The Attorney General, Chicago, IL.
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
Flaum, Circuit Judge.
Anthony Mertz was sentenced to death in 2003 for the murder of Shannon McNamara. In 2011, Illinois Governor Pat Quinn commuted his sentence to life imprisonment without the possibility of parole. Mertz now brings this appeal of the district court's denial of his habeas petition alleging ineffective assistance of his sentencing counsel for failing to rebut evidence that Mertz committed an uncharged murder, as well as an uncharged arson. Without addressing whether Mertz's counsel's performance was deficient, the district court held that Mertz could not show the necessary prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to succeed on his claim for relief. We affirm.
A. Factual Background
On June 12, 2001, Shannon McNamara's roommate found her dead in their college apartment. McNamara was naked from the waist down, and her shirt and bra were pulled up over her face. A washcloth was stuffed inside of her mouth, and a piece of a latex glove was discovered near her head. McNamara had a large cut down the center of her abdomen, bruises to her face, and a fractured neck. The right lobe of her liver was lacerated as a result of blunt force trauma. McNamara's body also bore knife wounds to her throat, genitals, and back. McNamara's bedroom window screen was cut, and investigators discovered both a razor blade and an empty box cutter handle in the apartment. Near the bathroom--where investigators believe
McNamara died--investigators discovered a credit card bearing the name " Anthony Mertz." One block from McNamara's apartment, investigators discovered a knife in a dumpster covered in McNamara's blood. McNamara's roommate informed police that the knife was part of a set that she and McNamara kept in their kitchen.
Police eventually arrested Mertz for McNamara's murder. Mertz claimed that he had been drinking with friends the night that McNamara was killed, and that he could not remember anything after a certain point in the evening. In an initial interview with police, investigators noticed that Mertz had scratches on his head and throat, bruises on his arm, and red knuckles; Mertz told police that he was injured after breaking a shot glass. Tests on DNA scrapings from underneath McNamara's fingernails were inconclusive, but did not exclude Mertz as a contributor. Multiple pairs of latex gloves were found in Mertz's apartment, and a box cutter went missing from his place of employment the day that McNamara was killed. In February 2003, a jury convicted Mertz of aggravated criminal sexual assault, home invasion, and first-degree murder in connection with McNamara's death. He was eligible for the death penalty because he committed the murder in the course of committing other felonies.
At sentencing, the government presented evidence that, prior to the McNamara murder, Mertz committed sexual and/or physical assaults on at least four other women, in addition to two men as well as two fellow inmates. The government put forth additional evidence that Mertz committed the unsolved and uncharged 1999 murder of a woman named Amy Warner. Mertz told friends--albeit in a joking manner--that he committed the crime, and also kept a newspaper article about the murder in his apartment. A witness also placed a car matching the description of Mertz's girlfriend's car at Warner's apartment on the night of her death. Additionally, the government drew a number of parallels between the McNamara and Warner murders. Officer Joe Siefferman testified at sentencing that both victims had their arms extended beyond their heads, both had injuries to their throats, and both appeared to be " posed" by their killers after their death. Both women were attacked on a Tuesday in June while they were asleep. No useful fingerprints were found at either crime scene.
The government also offered evidence that Mertz committed the unsolved and uncharged arson of Unique Apartments--a partially constructed apartment building located across the street from Mertz's home. It burned down in February 2000, but because of the damage to the structure, the cause of the fire could not be determined. However, the assistant fire chief testified that there was no source of ignition in the structure and that the rapid progression of the fire implied the use of an accelerant, suggesting a possible arson. Four of Mertz's friends heard Mertz claim responsibility for the fire. Mertz confirmed that he made these statements, but denied committing the crime.
Furthermore, the government submitted evidence that Mertz's computer contained nude photos of his former girlfriends, nude photos of female children, and bestiality photos. The jury heard further evidence that Mertz used the screen name " Cereal Kilr 2000," admired Hitler and Timothy McVeigh, and that his computer contained articles on racism and drug manufacture, as well as images of white pride symbols and Nazi flags.
In response to the government's aggravating evidence, Mertz's lawyers called twenty-five witnesses to offer mitigating testimony. The jury heard how Mertz lived ...