Stevens v. McBride (492 F. Supp. 2d 928, 2005)

Citations

492 F. Supp. 2d 928

Full opinion text

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

This proceeding is a petition filed by counsel on behalf of the petitioner, Christopher M. Stevens, seeking relief under 28 U.S.C. § 2254 from a state court criminal proceeding in which he was sentenced to death. An extended oral argument, lasting nearly 2 hours, was held on the petition in South Bend, Indiana on December 6, 2004. This court greatly appreciates the professional services of appointed counsel for Mr. Stevens.

Two published opinions of the Supreme Court of Indiana will provide the basic factual setting of this case. In Stevens v. State, 691 N.E.2d 412 (Ind.1997), the unanimous decision of the Supreme Court of Indiana was written by Chief Justice Shepard and entered on December 31, 1997. In Stevens v. State, 770 N.E.2d 739 (Ind.2002), the unanimous decision of the Supreme Court of Indiana was written by Justice Dickson and entered on June 26, 2002. The massive state record has been filed and examined here pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as well as 28 U.S.C. § 2254.

I. STANDARD OF REVIEW

[ U]nder § 2254(d) it must be shown that the [state] Supreme Court’s decision was either contrary to, or an unreasonable application of, [the United State Supreme Court’s] clearly established precedents, or was based upon an unreasonable determination of the facts.

Price v. Vincent, 538 U.S. 634, 639, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003).

[ A] decision by a state court is “contrary to” our clearly established law if it “applies a rule that contradicts the governing law set forth in our cases” or if it confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.

Price, 538 U.S. at 640, 123 S.Ct. 1848. (Quotation marks omitted.)

[ T]he phrase “clearly established Federal law, as determined by the Supreme Court of the United States” ... refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision.

Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389, (2000).

[ A]s the statutory language makes clear, ... § 2254(d)(1) restricts the source of clearly established law to this Court’s jurisprudence.

Williams, 529 U.S. at 412, 120 S.Ct. 1495.

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, 538 U.S. at 641, 123 S.Ct. 1848 (quotation marks, citations and brackets omitted). See also Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002), Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)

Thus, the United States Supreme Court has made clear that it is not for this court to decide the merits of the petitioner’s arguments from scratch. Rather, the task laid out before this court in a § 2254 habeas corpus petition is to determine whether the decision of the state court, in this case the Indiana Supreme Court, falls outside of that broad swath of reasonable interpretations of the law based solely on the holdings of United States Supreme Court opinions at the time of the state court decision.

II. LETTER REQUESTING DISMISSAL

As a preliminary matter, the petitioner, acting pro se, wrote a handwritten letter to this court asking that this case be dismissed. Given that the court is now denying this habeas corpus petition on the merits, the question of dismissal is rendered moot.

III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

The petitioner, in his first three claims for relief, argues that his trial counsel were ineffective for many reasons. The clearly established law on the Sixth Amendment was presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective assistance claim, the petitioner must establish two elements: first, that counsel’s performance fell below an objective standard of reasonably effective representation; and second, that the “deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. For the first prong, the petitioner must

identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.

Strickland, 466 U.S. at 690, 104 S.Ct. 2052. On the second prong, the petitioner must show 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, 104 S.Ct. 2052.

The petitioner argues that, “delays in the investigations impacted the defense’s ability to prepare and secure necessary experts”. Petition at 20, docket # 18. The Indiana Supreme Court addressed this claim in reviewing the denial of his post-conviction relief petition.

The defendant claims, in part, that his counsel unreasonably delayed their investigation. Stevens was tried for murder in January 1995, within seventeen months of his arrest in July 1993. Defense counsel entered their appearances in August 1993. In November 1993 counsel made their first request for funding for experts. This request was granted in May 1994 along with funds for an investigator. Funding for mitigation investigation was secured in January 1994, and a mitigation specialist joined the defense. Defense counsel periodically requested additional amounts for the mitigation, fact, and expert witnesses. Such funding requests were approved. Billing records indicate that information was being gathered, procedural issues were being worked out with the prosecutor and the court, and research was being done on legal issues during the three months before the first funding request. Because of successful motions for continuance, Stevens was not tried until seven months after the time counsel added the psychologist and the fact investigator to their team of a paralegal and mitigation investigator. These facts do not compel a finding of deficient performance in the timing of trial counsel’s investigation.

Stevens v. State, 770 N.E.2d 739, 748 (Ind.2002) (footnote and citation omitted). The Indiana Supreme court reviewed the pretrial history of this case and examined the chronological relationship of the events in question. Despite some initial delays, the court found that the fully constituted defense team had seven months to prepare for trial because of counsel’s success in postponing the trial. In light of the curative effect of the continuances, it was not an unreasonable application of Strickland for the Indiana Supreme Court to hold that these investigative delays were within the range of professionally competent assistance and that they did not render trial counsel ineffective.

The petitioner argues that, “defense counsel secured the services of an incompetent expert without making any effort to familiarize themselves with the potential expert’s forensic approach” (petition at 22, docket # 18); that “Dr. Lennon’s ‘specialty’ was not relevant to Christopher Stevens” (petition at 25, docket # 18); that “Dr. Lennon was retained under fraudulent circumstances” (petition at 27, docket # 18); and that “defense counsel were aware that Dr. Lennon’s ‘myth of mental illness’ views were far outside the professional ‘mainstream.’ ” (petition at 27, docket # 18). The Indiana Supreme Court addressed these claims related to expert competence and trial counsel’s investigation thereof in the appeal from the denial of his post-conviction relief petition.

Dr. Lennon had been recommended by the mitigation investigator. Other members of the criminal defense community also told Stevens’s attorneys that Dr. Lennon had done a “very nice job” in testifying in another death penalty case. Dr. Lennon holds a Ph.D. in clinical Psychology from Miami University in Ohio. He was a psychology professor at St. Joseph’s College, where he spent four years as the chair of the Psychology Department, and was clinical director of the Child and Adolescent Psychiatric Center at Humana Hospital in Indianapolis from 1991 to 1994. Dr. Lennon conducted a preliminary evaluation of the defendant prior to April 13,1994 and met with him five times from June through December 1994. Dr. Lennon also met with the defendant’s parents and siblings, and reviewed school records, records from the Hamilton Center, and arrest records. Other individuals from Dr. Lennon’s office, including a social worker and another psychologist, participated in evaluations of the defendant. Defense counsel considered Dr. Lennon a good fit because of his expertise in treating children and adolescents, and the defendant’s attorneys sought and received a transcript of Dr. Lennon’s testimony in a case the attorneys felt had similar issues.

Stevens v. State, 770 N.E.2d 739, 747-48 (Ind.2002). It was not unreasonable for the Indiana Supreme Court to have found that Dr. Lennon was a competent expert. He possessed the necessary professional credentials and he examined and evaluated the defendant. It is widely known that there is a great range of opinion within the psychological community. Though the petitioner believes that he could have obtained a more advantageous expert, based on these facts, it was not unreasonable for the Indiana Supreme Court to have found, without regard to his specialties or his approach to psychology, that he was a competent expert. Neither was it an unreasonable application of Strickland for the Indiana Supreme Court to hold that the degree to which trial counsel familiarized themselves with Dr. Lennon’s credentials, though certainly they could have done more, was within the range of professionally competent assistance.

The petitioner presents several arguments about Dr. Lennon’s report and testimony.

Prior to knowing about Dr. Lennon’s ‘specialty’ or that he fell far outside the professional mainstream of mental health experts, counsel guaranteed that Dr. Lennon would generate a report that would be provided to the State.

Petition at 24, docket # 18.

From “out of the blue” Dr. Lennon generated a completely unauthorized report without consulting counsel as to the content of that ‘report.’

Petition at 39, docket # 18 (emphasis in original).

Objectively, counsel should never obtain a report from an expert without knowing what is going to be in it.

Petition at 42, docket # 18.

Dr. Lennon devised his own ‘strategy’ that mandated his unilateral decision to testify at trial.

Petition at 58, docket # 18.

Defense counsel called Dr. Lennon as a penalty phase witness without knowing about what he intended to testify.

Petition at 59, docket # 18.

Dr. Lennon’s penalty phase testimony, anchored in the information and opinions served up in the unauthorized ‘report,’ introduced the issue of ‘future dangerousness’ into the penalty phase. This was highly prejudicial to Mr. Stevens.

Petition at 60, docket # 18.

The Indiana Supreme Court addressed these claims in the appeal from the denial of his post-conviction relief petition.

The defendant also faults his trial counsel for providing a copy of Dr. Lennon’s report to the State prior to trial. We note, however, that the report was provided in compliance with the trial court’s order that any reports from experts [were] to be submitted to the State sixty (60) days in advance of trial. On motion of the defense, the trial court extended the deadline for the exchange of reports from experts to July 19, 1994. The defense thereafter supplied the report.

Stevens v. State, 770 N.E.2d 739, 748 n. 4 (Ind.2002) (quotation marks and citations omitted).

Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the petitioner argues that the Indiana Supreme Court was unreasonable in finding that trial counsel were not ineffective for agreeing to provide a copy of the report to the State. This was not unreasonable because Ake did not require a confidential psychological report.

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right.

Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). It was not an unreasonable interpretation of Ake for Indiana to require disclosure of the report. Obviously, if disclosure was required, then so too was the creation of the report; therefore it was not created “out of the blue”. Though it is self-evident why defense counsel would like the opportunity to shape and tailor both the psychological report and Dr. Lennon’s testimony, Ake did not create such requirements. Indeed, Ake made clear that an indigent defendant did not have “a constitutional right to choose a psychiatrist of his personal liking....” Ake, 470 U.S. at 83, 105 S.Ct. 1087.

The petitioner presents several arguments concerning intent and the voluntary manslaughter defense versus a mental illness defense.

By defending this case in accordance with the views of Dr. Lennon[,] defense counsel conceded any possible defense that would question Mr. Stevens’ “intent” during the commission of the homicide. This was in spite of the fact that counsel were aware of facts that impacted upon the question of the Mr. Stevens’ “intent.”

Petition at 30, docket # 18.

Defense counsel failed to properly investigate Petitioner’s substance and alcohol abuse, failed to develop this evidence, and failed to seek or secure the services of an alcohol and substance abuse expert.

Petition at 35, docket # 18.

In spite of recognizing these shortcomings of Dr. Lennon, and realizing that the defense needed additional experts to defend the case, defense counsels [sic] never sought additional funding to secure other experts.

Petition at 43, docket # 18 (emphasis in original).

Defense counsels [sic] adopted a theory of defense that did not focus upon the issue of Mr. Stevens’ “intent” at the time of the homicide. The defense of ‘Voluntary Manslaughter’ was not supported by any facts as counsel knew them to be or law. Defense counsel did not know the law.

Petition at 45, docket # 18.

It was unreasonable and prejudicial for defense counsel to proceed with the untenable ‘voluntary manslaughter’ defense given that a viable mental illness defense was available.

Petition at 47, docket # 18.

Petitioner was prejudiced by trial counsel’s use of the untenable ‘voluntary manslaughter’ defense. Even if counsel had only been able to secure a ‘guilty but mentally ill’ verdict, such would have been a circumstance rendering the death penalty inappropriate.

Petition at 50, docket # 18. The Indiana Supreme Court addressed these claims at length in its review of the denial of his post-conviction relief petition.

During the guilt phase trial, the defense strategy was to urge that the killing was done in sudden heat and thus, if the defendant were guilty, he was guilty of voluntary manslaughter and not murder. At post-conviction, defense counsel testified that this was one of the alternative theories they had been considering from “day one,” and when Stevens’s confession was not suppressed, voluntary manslaughter became the theory of the case. Counsel based this theory on a statement in the defendant’s confession that he “snapped” or “went off.” Defense counsel tendered an instruction on voluntary manslaughter, which the trial court refused to give. During closing argument, defense counsel nevertheless asked the jury to return a verdict of voluntary manslaughter.

While the defendant argues in retrospect that a mental illness defense would have been more effective, his proposed avenue was not without its pitfalls. The post-conviction court noted that, had defense counsel pursued this defense, they 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. The trial court determined that defense counsel adequately investigated issues of substance abuse and mental illness and reasonably chose to pursue a different strategy. [FN5] The post-conviction court did not err in denying relief on this claim.

Stevens v. State, 770 N.E.2d 739, 749 (Ind.2002) (citations omitted). In footnote 5, the court stated.

The post-conviction court concluded, in part:

With the benefit of hindsight, Petitioner’s present counsel suggest that trial counsel should have adopted the defense of mental disease or defect (Ind.Code § 35-41-3-6) and should have presented psychiatric evidence that Petitioner was unable to form the mens rea necessary to commit intentional murder. However, if Petitioner had raised the insanity defense, he would have opened the door to the admission of incriminating evidence that was not presented during the guilty [sic] phase of his trial.... Moreover, the facts of the crime itself militate against insanity.... Against this backdrop, Dr. Coons’s testimony that, in his opinion, Petitioner’s ability to appreciate the wrongfulness of his conduct was “impaired” would have had little or no effect on the jury’s verdict, particularly in light of Dr. Coons’s acknowledgment that Petitioner could appreciate the wrongfulness of his conduct when he took steps to hide Zachary’s body.

Stevens v. State, 770 N.E.2d 739, 749 n. 5 (Ind.2002) (ellipsis in original, citation omitted). Finally, in a section titled, “Pursuing Voluntary Manslaughter as Defense Theory”, the court concluded its discussion.

The defendant claims that his trial counsel were ineffective for pursuing a “fundamentally flawed” approach to the case by proceeding on a theory of voluntary manslaughter. They tendered three proposed instructions that dealt with voluntary manslaughter, but these were rejected by the trial court. The defendant argues that there was no evidence in the record to support this theory, and that there was another viable defense available but not used.

The defendant urges that, if defense counsel had consulted other mental health experts, counsel would have learned of the defendant’s dissociative disorder, borderline personality disorder, chemical dependency, and LSD impairment at the time of the offense. In the post-conviction proceedings and in this appeal, the defendant’s present counsel assert that the defendant was raped as a child; that at the time of the killing the defendant switched his identity with that of Zachary; that the defendant killed Zachary because it’s what he would have wanted in that molestation at age 10, to have been killed by his abuser; and that the defendant’s ability to appreciate the wrongfulness of his conduct was disengaged when he was dissociating. The defendant argues further that, even if the voluntary manslaughter defense were regarded as legitimate strategy, this would not excuse the failure to present the mental illness defense.

The post-conviction court found that counsel’s decision to pursue the voluntary manslaughter strategy, while ultimately unsuccessful, did not amount to deficient performance. The court pointed out that any appreciable evidence of sudden heat justifies an instruction on voluntary manslaughter, and that sudden heat is defined as provocation arising from a variety of emotions. In the defendant’s admissions of guilt to his brother, the defendant said that he “clicked” or “went off’ when Zachary threatened to tell his parents about the defendant’s sexual conduct. In the defendant’s confession to police, he stated that he killed Zachary because he was afraid that Zachary would report him. Concluding that the defendant received effective assistance of counsel as to their strategy to pursue voluntary manslaughter instructions, the post-conviction court found that the defendant’s trial attorneys pursued the most viable defense available to them.

As to the failure to present a mental illness defense during the guilt phase, the post-conviction court noted that, had defense counsel done so, they would have opened the door to the admission of substantial incriminating evidence not otherwise presented during the guilt phase. As we noted above, this included testimony that, upon the defendant’s pri- or release from jail to probation for a previous conviction of child molesting, the defendant had declared his intent to kill his next child molesting victim to avoid returning to jail.

We conclude that the evidence as a whole does not lead unerringly and unmistakably to a decision opposite that reached by the post-conviction court, and we find that defense counsel’s choice of defense theory did not constitute ineffective assistance of counsel.

Stevens v. State, 770 N.E.2d 739, 752-53 (Ind.2002) (brackets, quotation marks, and citations omitted).

It was not unreasonable for the Indiana Supreme Court to find that pursuing a mental illness defense was fraught with pitfalls and would have had little or no effect on the jury’s verdict. Neither was it an unreasonable interpretation of Strickland for the Indiana Supreme Court to have held that trial counsel were not ineffective even though they pursued a manslaughter defense and did not pursue a mental illness defense. Though the manslaughter defense was unsuccessful, fraught with similar pitfalls as the mental illness defense, and not supported by the evidence which was presented at trial; there are simply some cases for which there is no good defense. See Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Trial counsel cannot be deemed ineffective merely because they drew a case with horrific facts which lacked a viable legal theory.

The petitioner argues that “inconsistent state court rulings regarding Mr. Stevens’ counsels’ [sic] pursuit of a voluntary manslaughter defense support a finding of ineffective assistance of counsel.” Petition at 53 (docket # 18). The petitioner argues that it was inconsistent for the Indiana Supreme Court, in his direct appeal, to have affirmed the trial court’s refusal to give a voluntary manslaughter instruction and then to have refused, in his post-conviction relief petition, to find his trial counsel ineffective for having pursued the voluntary manslaughter defense. Procedurally, this argument is unsuccessful because neither this court nor the Indiana Supreme Court on post-conviction review, were directly presented with the question of whether the voluntary manslaughter instruction should have been presented to the jury. On post-conviction review, the Indiana Supreme Court stated,

Stevens v. State, 770 N.E.2d 739, 753 (Ind.2002) (brackets, quotation marks, and citations omitted). Based on this passage, the petitioner appears to conclude that the post-conviction court believed that the voluntary manslaughter instruction should have been given to the jury. Perhaps it did, and perhaps it would have granted the post-conviction relief petition had that question been squarely presented to it. Procedurally, that issue is forfeit because it was not directly raised to either the post-conviction court nor to this one. Yet before anyone second guesses the post-conviction strategy, it must be noted that substantively the language of this passage from the Indiana Supreme Court does not lead unequivocally to the conclusion that it believed its prior ruling was in error.

The post-conviction court speaks of “any appreciable evidence of sudden heat” and it gives two examples of how trial counsel may have believed that they had such evidence. It then concludes by saying, not that trial counsel’s strategy was outstanding, but rather that it was the best they had. As previously discussed, this case was so fraught with problems, they did not have much with which to work. Therefore, though the trial court, the Indiana Supreme Court on direct appeal, and the prior caselaw all held that the voluntary manslaughter defense was inapplicable here, trial counsel’s selection of this unsuccessful defense and direct appellate counsel’s inability to convince the Indiana Supreme Court to broaden the voluntary manslaughter defense did not render them ineffective.

The petitioner argues that “having introduced evidence as to their client’s future dangerousness, defense counsel failed to adequately address the issue of life without parole.” Petition at 61 (docket # 18). The Indiana Supreme Court addressed this claim in reviewing the denial of his post-conviction relief petition.

The defendant contends that his trial counsel were deficient for failing to tender a penalty phase instruction that would have informed the jury of the “true effect” of life without parole. He argues that such an instruction was needed to offset the possibility that a juror might believe that if sentenced to life without parole, the defendant could be released early. The defendant argues that such an explanation should have been provided because there had been evidence on the issue of future dangerousness and because his trial counsel allegedly provided misguided speculation during jury selection when responding to a potential juror’s question concerning the meaning of life without parole.

The post-conviction court’s decision noted that it is unnecessary to instruct juries on words that are commonly understood. The court found that “life without the possibility of parole” consists of common words that may be easily understood by persons of average understanding. It also found that had any such instruction been tendered it would have been refused. The post-conviction court concluded that the defendant had received effective assistance of counsel as to this claim. We agree and decline to find ineffective assistance of trial counsel on this issue.

Stevens v. State, 770 N.E.2d 739, 755-56 (Ind.2002) (citations, footnote and quotation marks omitted).

Citing Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the petitioner argues that he “was denied his right to have the jury informed of the true effect of one of the sentencing options.” Petition at 64, docket # 18. In Simmons, the trial court refused to inform the jury that the defendant would not be eligible for parole and the United States Supreme Court held that juries must be so informed when that is a sentencing option. It was not unreasonable for the Indiana Supreme Court to have held that the trial court in this case complied with the requirements of Simmons when the jury was told that “life without the possibility of parole” was a sentencing option.

The petitioner presents several arguments related to the penalty and sentencing phase of his trial.

Counsel’s failure to investigate the abuse, brutality, and humiliation of Mr. Stevens’ childhood undermined the penalty phase mitigation presentation.

Petition at 64, docket # 18.

The untapped mitigation evidence that counsel failed to present during the penalty phase of trial prejudiced Mr. Stevens.

Petition at 68, docket # 18.

Counsel rendered ineffective assistance when, during the Penalty Phase arguments the Defense rejected any explanation for the offense.

Petition at 71, docket # 18.

The sentencing phase of the trial was a replay of the ineffective and prejudicial penalty phase.

Petition at 72, docket # 18.

The Indiana Supreme Court addressed these claims in reviewing the denial of his post-conviction relief petition.

The defendant contends that his trial counsel were deficient during the penalty phase and sentencing hearing by failing to present sufficient evidence of mitigating circumstances. The defense 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. The defendant’s post-conviction counsel, however, assembled several witnesses to testify regarding information and theories that were not employed by defense trial counsel.

The defendant first argues that his trial lawyers unreasonably limited their penalty phase and sentencing presentations to events of his life that occurred before age 18 and that his counsel unreasonably relied upon Dr. Lennon, rather than presenting other psychological experts regarding the defendant’s mental or emotional distress at the time of the killing. He argues that Dr. Lennon “was a fatal witness for the defense,” noting that on cross-examination by the State, Dr. Lennon agreed with the State’s theory that Zachary’s murder appeared directly related to the defendant’s fear of having to return to prison, and the defendant was not susceptible to traditional psychotherapy and was a serious danger to society. The defendant further urges that his trial counsel failed to present a reason for the defendant’s crime. He argues that counsel should have presented expert evidence that, at the time of the killing, the defendant was under a mental disease or defect, with an impaired ability to appreciate the wrongfulness of his conduct and conform it to the law; that he was very likely influenced by the interactive use of drugs; that his disorders were treatable with medication and intensive, individual psychotherapy; and that he would not constitute a pedophilia threat in prison.

The post-conviction court rejected these claims. The court observed that expert witness opinions suggesting that the defendant had an impaired ability to appreciate the wrongfulness of his conduct would have been strongly contradicted by the extensive evidence of the defendant’s multiple attempts to kill Zachary and then carefully to take steps to cover-up the crime. The court noted that even one of the defendant’s own experts at post-conviction acknowledged that the defendant could appreciate the wrongfulness of his conduct when he took steps to hide Zachary’s body. The post-conviction court later concluded:

Defense counsel were not ineffective for failing to investigate and prepare evidence of organic and mental impairments, including dissociative disorders, borderline personality disorders, and the effects of long-term drug use. Defense counsel’s investigation of Petitioner’s mental health and prior use of drugs was reasonable. Both of defendant’s trial counsel testified that they were aware of Petitioner’s prior drug abuse. Dr. Lennon was also aware of Petitioner’s prior drug abuse. However, Petitioner denied having recently used drugs: he “used to do drugs, used to drink,” but that he stopped drinking when he got arrested for child molesting, and “had stopped smoking marijuana awhile before that, long before that, pretty much cause my sister got killed by a guy that was high and ever since that I had, I had gone from doing it heavy to real light and then stopped.” Moreover addiction counselor Need-ham evaluated Petitioner in January 1993 and found that Petitioner did not have a drug or alcohol problem. Thus, defense counsel’s investigation was reasonable.

Moreover, had defense counsel adopted the strategy of emphasizing Petitioner’s prior drug use, this would have been inconsistent with their mitigation strategy of portraying Petitioner as the passive victim of abuse. As Dr. Lennon testified, so much of Petitioner’s behavior could be explained by the abuse, the neglect that he’s had on top of his genetic predisposition, and then you look at all the drugs that he’s been surrounded with his birth mother, and then the fact that she probably — even though she denies it, the evidence will suggest that she probably did do drugs or alcohol during pregnancy. Had defense counsel elicited evidence of Petitioner’s prior use of illicit drugs, he would no longer appear to be a passive victim molded by outside forces, but would appear as someone who had actively decided to break the law. As the Seventh Circuit explained in Stewart v. Gramley, [w]hat is brought out during the penalty phase that will help a defendant is what goes to show that he is not as “bad” a person as one might have thought from the evidence in the guilt phase of the proceeding. What is brought out that will hurt him is what goes to show that he is, indeed, as bad a person, or worse, than one might have thought from just the evidence concerning the crime. Defense counsel was not ineffective for failing to pursue a mitigation strategy that could have caused the jury to think that Petitioner had a more extensive history of lawbreaking than was otherwise apparent.

The post-conviction court thus found that defense counsel were aware of petitioner’s past drug abuse and investigated the mental health issues through the use of Dr. Lennon. Further, the court found that presenting the petitioner’s chronic drug abuse would cut against the defense strategy of portraying the petitioner as a passive victim of abuse rather than someone with an extensive history of lawbreaking. The court determined that the strategic decision to pursue this mitigation strategy over another was not ineffective assistance of counsel. We are not persuaded that the evidence in the record unavoidably points towards an opposite result.

The defendant also contends that defense counsel was constitutionally ineffective because of a statement made by counsel during the penalty phase closing argument: “I am not going to tell you that anything that happened in Chris Stevens’s life explains or excuses the events of July 15th, 1993. It doesn’t, and he will have to suffer the punishment for that.” The State responds that this statement was reasonable because it reminded the jury that recommending a sentence other than death would not mean that they were excusing the defendant for his actions, and would not mean that the defendant would escape with no punishment.

The challenged statement was in the context of surrounding argument urging that the important part of the case before the jury was not whether the defendant committed the crime, but rather what penalty to recommend: a term of years, life imprisonment without parole, or death — any of which constitute severe punishment. Counsel’s argument clearly emphasized the importance of mitigating circumstances. The challenged statement taken in context cannot reasonably be understood to have invited the jury to disregard mitigating circumstances. We decline to find deficient performance based on his claims of failure to present sufficient mitigating evidence during the penalty phase and sentencing.

Stevens v. State, 770 N.E.2d 739, 753-55 (Ind.2002) (citations, ellipsis, brackets, and quotation marks omitted).

The Indiana Supreme Court extensively reviewed these claims and it was not an unreasonable application of Strickland for the Indiana Supreme Court to hold that trial counsel’s investigation of mitigating evidence and comments during the penalty phase of trial were within the range of professionally competent assistance.

The petitioner argues that, “the attorney’s dislike of their client created a conflict of interest that adversely affected Mr. Stevens.” Petition at 74, docket # 18. The Indiana Supreme Court, in reviewing the denial of his post-conviction relief conviction, found that this argument was procedurally defaulted.

The defendant contends that his two trial counsel disliked him and that their personal animosity toward him interfered with their duty of loyalty to their client, adversely affecting their representation of him, to his prejudice. This issue was not designated in the petition for post-conviction relief and thus may not be raised on appeal.

Stevens v. State, 770 N.E.2d 739, 756 (Ind.2002). The petitioner explains in his traverse that this is not really an independent claim, per se, but rather it is

no more than an extension and reiteration of defense counsel’s hiring and utilization of Dr. Lennon and the resultant prejudice that enured to Mr. Stevens’ as a result of defense counsels’ [sic] the [sic] opening the door to the prior misconduct and future dangerousness.

Traverse at 69, docket # 69. To the extent that this is an independent claim, it is procedurally defaulted. To the extent that this is an extension and reiteration of other arguments, it was inherently addressed by the Indiana Supreme Court and by this court in conjunction with those other arguments.

In his traverse, the petitioner withdrew several of his claims related to ineffective assistance of counsel.

The following ineffective assistance of counsel subclaims, which were originally parts of Mr. Stevens’ Third Claim for Relief in his Petition, are hereby withdrawn as free standing, independent claims: (1) failure to adequately address the voluntariness of Mr. Stevens’ confession; (2) the failure to object to victim impact evidence during the guilt phase; (3) the failure to present guilt phase witnesses; (4) IAC resulting in Mr. Stevens’ loss of the right to testify.

Traverse at 85, docket # 69. Therefore those claims need not be further addressed in this memorandum.

The petitioner argues that, “counsel failed to request a second change of venue”. Petition at 82, docket # 18. The Indiana Supreme Court addressed this argument in the appeal from the denial of his post-conviction relief petition.

The defendant contends that he was prejudiced by his counsel’s deficient performance when they failed to seek a second change of venue. Upon motion of defense counsel, the case was removed from Putnam County, where the crime was committed, and venued to Tippecanoe County, two counties north of Putnam County. The defendant now argues that both counties are within the Indianapolis media market, that his counsel had no strategic reason to keep the case in Tippecanoe County, and that the failure to seek a second change of venue prejudiced him by denying him his right to a trial by an impartial jury.

The post-conviction court found that defense counsel were not ineffective for failing to make a second motion for a change of venue due to pretrial publicity. The court found that, given the inherent newsworthiness of the case, media coverage would have been prevalent anywhere and although the coverage was at times extensive it was not necessarily on the front page as it would have been in Putnam County. The court also found that Stevens failed to demonstrate prejudice as the trial record showed that every panel of the veni-re was carefully questioned about pretrial publicity by the court, State, and defense counsel. The evidence does not compel a decision opposite that reached by the post-conviction court.

Stevens v. State, 770 N.E.2d 739, 750-51 (Ind.2002) (footnote omitted). The petitioner’s arguments demonstrate, at most, that jury selection was difficult and time consuming, not impossible, as a result of the pre-trial publicity in Tippecanoe County. The petitioner argues that there were numerous prospective jurors who had been exposed to media reports about the case. To the extent that jurors with media exposure were seated on the jury, that is a jury selection question, not a question of venue. It was not unreasonable for the Indiana Supreme Court to have found that the petitioner was neither prejudiced by nor denied the effective assistance of counsel because they did not seek a second change of venue.

The petitioner argues that, “the juror questionnaire provided no useful guidance” (petition at 84, docket # 18) and that there was ineffective assistance of counsel “during voir dire” (petition at 85, docket # 18). The Indiana Supreme Court addressed these arguments in reviewing the denial of his post-conviction relief petition.

The defendant challenges his trial counsel’s performance in jury selection and particularly as to the jury questionnaires submitted to prospective jurors.

He argues that his trial counsel used questionnaires that failed to address mitigation issues or to explain the meaning of “life without parole,” and thus failed to ensure that prospective jurors understood they could address future dangerousness with this sentencing option. We first note that the questionnaire form was not generated by counsel but prepared by the trial court and submitted to counsel for review. Jury questionnaires .are a useful tool employed by courts to facilitate and expedite sound jury selection. Their proper purpose is not to condition or indoctrinate prospective jurors with the parties’ contentions, notwithstanding attempts of some counsel to the contrary. Ineffective assistance of counsel may not be based upon an alleged failure of counsel to thus misuse jury questionnaires.

The defendant further alleges that his counsel were deficient in jury selection by failing to integrate their mitigation theory into the voir dire process, and to exhaust peremptory challenges. We have held that it is permissible to use voir dire to inquire into jurors’ biases or tendencies to believe or disbelieve certain things about the particular line of defense. The record reveals that defense counsel’s voir dire questions extensively inquired regarding the jurors’ openness to considering mitigating factors to prevent the imposition of the death penalty. We decline, however, to find a criminal defense attorney’s performance to be deficient for failing to condition jurors as to the particular mitigation evidence anticipated in an individual case.

The post-conviction court found that trial counsel were not ineffective for failing to exhaust their peremptory challenges. The court noted that, between the two of them, the defendant’s trial counsel had spent over fifty hours reviewing the completed jury questionnaires. They challenged nineteen jurors for cause, seventeen of which were granted. The court noted that they used seventeen of their twenty peremptory challenges, but for strategic reasons did not exhaust them because what was coming up was worse. The court also observed that counsel successfully rehabilitated several jurors that the State challenged for cause, forcing the State to exercise peremptory challenges. The evidence does not compel a decision opposite that reached by the post-conviction court.

Stevens v. State, 770 N.E.2d 739, 751 (Ind.2002) (quotation marks and citations omitted; emphasis in original).

Both the record, and petitioner’s extensive review of it in his traverse, demonstrate that trial counsel knew a great deal about the jury pool. The purpose of the jury questionnaire and voir dire is to elicit information from prospective jurors so trial counsel may exercise peremptory and for cause challenges. While it is certainly possible that trial counsel could have done a better job with both the questionnaire and voir dire, their performance was not ineffective in that they ultimately obtained a great deal of valuable and insightful information about the prospective jurors.

The petitioner objects to the Indiana Supreme Court’s characterization of his argument as a suggestion that the jury should be conditioned or indoctrinated with the questionnaire or during voir dire. Nevertheless, the focus of this argument is more on what should have been communicated to the jury pool with the questions than what should have been learned from it by their answers. Without regard to the questions during voir dire, both the record and petitioner’s review of it make clear, that the prospective jurors answers provided a great deal of information to trial counsel. Because trial counsel obtained an adequate quantity and detail of information about these jurors, they were not ineffective for not having asked better questions and the Indiana Supreme Court was not unreasonable in finding that trial counsel was not ineffective during jury selection.

The petitioner argues that,

Due to the appellate ramifications attendant to failure to exhaust, reasonably competent counsel would have factored in their belief that their client would be convicted and the case likely to appeal.

Petition at 89, docket # 18. This is a very odd argument. If the petitioner believed that one or more jurors were seated which should have been excused for cause, then he could have argued that his trial counsel were ineffective for not challenging that juror and for not preserving that err for appellate review, but that is not the argument that was presented to the post-conviction court and that is not the argument that is presented here, even though the traverse states that trial counsel did not challenge three of the seated jurors for cause. Because the question of whether any of the jurors should have been excused for cause was not presented to the post-conviction court and because it was not included in the petition, this court will not further address it.

This leaves solely the question of whether counsel was ineffective for not exhausting their peremptory challenges. Exhaustion, without a surviving challenge to a seated juror, does not create an issue for appellate review. That is to say, the argument “I exhausted all of my peremptory challenges” is not, standing alone, a legitimate basis for appeal. The state court addressed this argument by finding that the failure to exhaust was reasonable for strategic reasons because the remaining jurors were worse. The Indiana Supreme Court was not unreasonable in holding that trial counsel was not ineffective.

The petitioner argues that trial counsel was ineffective because they “failed to object to the sheriffs decision to force Mr. Stevens to wear a stun belt----” Petition at 96, docket # 18. The Indiana Supreme Court addressed this argument during its review of the denial of his post-conviction relief petition.

The post-conviction court concluded that defense counsel were not ineffective for failing to raise this claim, noting that no evidence was presented that the defendant was impeded in his ability to assist his counsel, that no jurors were aware that Stevens was wearing a stun belt, and that the belt did not affect Stevens’s appearance before the jury.

The defendant asserts that while none of the jurors were aware that he was wearing a stun belt, their perception of him was still affected by the fact that he was under restraint. The defendant argues that he was harmed because wearing the belt made him appear to the jurors as emotionally withdrawn, subdued, and unusually silent, which may have influenced them to recommend the death penalty. In the post-conviction proceedings, the defendant presented the testimony of Dr. Robert Kaplan who testified that the wearing of the stun belt at trial would have inhibited the defendant’s expression of emotion.

The testimony of five of his capital trial jurors and the affidavit of a sixth juror were also presented. The jurors described the defendant as emotionally withdrawn, silent, and subdued. One juror stated that he did not appear remorseful. Three jurors stated that they observed the defendant interacting with his attorneys by passing notes and whispering. The defendant recognizes that his demeanor and affect as seen by the jurors during trial was essentially the same demeanor and affect they had seen during his videotaped confession.

We conclude that the evidence does not unmistakably lead to a result contrary to the post-conviction court’s factual findings. From the circumstances presented in this case, we find no reasonable possibility that but for the failure of trial counsel to object to the stun belt, the results of the guilt phase, penalty phase, or sentencing would have been different.

Stevens v. State, 770 N.E.2d 739, 757 (Ind.2002) (footnote and citations omitted). The petitioner notes that the Indiana Supreme Court does not cite any United States Supreme Court cases in deciding the stun belt issue, but there are no United States Supreme Court cases on stun belts. The petitioner cites Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). The petitioner makes clear that these are cases involving shackling or medicating a criminal defendant at trial; they are not stun belt cases. These cases do not constitute clearly established law as to the question of stun belts. Though useful as analogies, the decision of the Indiana Supreme Court that trial counsel was not ineffective in failing to object to the stun belt was neither contrary to, nor an unreasonable application of, the clearly established law as determined by the United States Supreme Court.

TV. PENALTY PHASE AND SENTENCING ERRORS

The petitioner alleges that various errors occurred during the penalty and sentencing phases of his trial.

The petitioner argues that there were penalty and sentencing phase errors because of “reliance upon invalid aggravating factors.” Petition at 97, docket # 18. Specifically, the admission of evidence of “unsubstantiated prior acts of misconduct relating to the killing of one boy and the molestation of 25-30 others, as well as future dangerousness.... ” Petition at 98, docket # 18 (citations omitted). The Indiana Supreme Court addressed this issue on direct appeal.

Stevens claims that his right to a reliable and proportionate sentence was violated when the State elicited testimony from defense expert Dr. Lawrence B. Lennon on cross-examination concerning Stevens’ previous sexual molestation of an Indianapolis ten-year-old, his sexual molestations of approximately twenty-five to thirty other children, his alleged shooting and killing of another boy “out west,” and Dr. Lennon’s opinion regarding Stevens’ future dangerousness. Stevens did not object to this line of questioning.

Defense counsel may not have objected because it was so apparent that this testimony was relevant to countering the mitigating evidence which Stevens had up to that point placed before the jury. Stevens “opened the door” by eliciting testimony from various witnesses regarding his non-violent and law-abiding character. The obvious relevance of this evidence was its tendency to indicate that Stevens was not normally a violent or dangerous person, as if the murder of Zachary Snider had been a one-time, freak occurrence. The State may properly introduce rebuttal evidence tending to disprove mitigating circumstances shown by defendant’s evidence. This issue is waived.

Stevens v. State, 691 N.E.2d 412, 435 (Ind.1997) (citations, footnote, and quotation marks omitted). The Indiana Supreme Court was not unreasonable in finding that this evidence was legitimately admitted as rebuttal evidence.

The petitioner also argues that the trial judge relied “upon invalid aggravating factors.” Petition at 97, docket #18.

The judge’s sentencing statements addresses and accords weight to factors of commission of the crime in a “calculated” manner, “coolly performed with deliberation,” “cold-blooded manner,” of a crime in a “sexual gratification”, becoming “sexually excited after commission of the murder,” each of which the court considered as aggravators and added weight to the death side of the scale, none of are among the listed aggravating factors in Indiana Code § 35-50-2-9, a number of which are actually synonymous with “intentional,” which had already been found and weighed.

Petition at 105, docket # 18. The Indiana Supreme Court also addressed this issue on direct appeal.

Third, Stevens claims that the trial court improperly considered non-statutory aggravators as part of its sentencing determination in violation of Bivins v. State, 642 N.E.2d 928, 955-56 (Ind.1994).

The sentencing statement begins by setting forth facts supporting the charged aggravators, finding each proven beyond a reasonable doubt. The statement then discusses the mitigating evidence and finds Stevens’ troubled childhood and confession to be mitigating circumstances proven by a preponderance of the evidence. The statement then weighs the aggravating and mitigating circumstances and concludes not only that “the mitigating circumstances are far outweighed by the three aggravating circumstances,” but that “the mitigating circumstances are outweighed by the [victim’s age] alone.” The statement then indicates the court’s consideration of the jury’s unanimous recommendation for death, placing “significant weight upon the jury’s recommendation.” The court then states,

The Court having made a separate, independent assessment of the facts of this case, having balanced the aggravating circumstances and the mitigating circumstances, and having found that the mitigating circumstances are not outweighed by the aggravating circumstances, the Court now finds that the death penalty is the appropriate punishment for the defendant, Christopher M. Stevens, and for this crime.

Stevens specifically refers to the following, which concludes the court’s sentencing statement:

In addition to the evidence previously discussed, the Court finds this murder was calculated. It was motivated by self-preservation, coolly performed with deliberation, and coupled with the defendant’s sexual gratification. The defendant placed the possibility of his arrest for child molesting above the life of a ten year old boy. He stated that if placed in this position he would kill in order to avoid returning to jail. That is exactly what he did. He clearly acted in a cold-blooded manner. After his first attempt to suffocate Zachary was unsuccessful, he acted intentionally and deliberately a second and third time before sue-cessfully obtaining his goal of permanently silencing the child. Imposition of the death penalty in this case is proportionate to the nature of the offense and appropriate for the defendant, Christopher M. Stevens, and the death penalty is therefore imposed upon Christopher M. Stevens.

Even if the facts articulated in the judge’s surplus statement indicate some influence on his decision, they appear mostly to be restatements of facts which would fall within the charged aggravating factors. Stevens himself states,

Such terms as “calculated”, “coolly performed with deliberation”, and “cold-blooded manner” are no more than synonyms for the culpability element of the (b)(1) aggravator, “intentionally”. Ind.Code § 35-50-2-9(b)(1). Likewise, the reference to “sexual gratification” as a reason for sentencing Stevens to death duplicates the underlying felony he found in this aggravator, child molesting.

The molestation and intentional murder of a ten-year-old child by one on probation, especially probation for a previous child molesting conviction, exemplifies a crime and criminal particularly worthy of the severest of penalties. While his confession and troubled childhood were mitigating circumstances properly found present, we agree with the trial court’s determination that these weighed far less than the aggravating circumstances. After reviewing the sentencing process and facts supporting the trial court’s decision, we determine that the death penalty is appropriate under the code and the constitutions and adequately reflects the nature of the offense and offender.

Stevens v. State, 691 N.E.2d 412, 436-37 (Ind.1997) (citations and subsequent history omitted). The trial judge did not apply invalid aggravating factors. After having made the requisite findings, he expressed a reasoned and factually supported personal opinion; nothing more. Indeed, the Indiana Supreme Court expressed the same opinion. Doing so was not error and the Indiana Supreme Court was eminently reasonable and correct in its ruling.

The petitioner argues that,

Because the charged aggravating circumstances were not proven beyond a reasonable doubt, the jury was not appropriately instructed with regard to matters related to the aggravators and the court double counted the (b)(1) and the (b)(ll) aggravating circumstances, Mr. Stevens’ penalty phase and sentence were unreliable.

Petition at 106, docket # 18. The Indiana Supreme Court addressed these three arguments on direct appeal. In addressing the argument that the aggravating circumstances were not proven beyond a reasonable doubt, the court stated:

Stevens’s death sentence was based, in part, on Zachary Snider being under the age of twelve when murdered. Stevens argues that this aggravator must be understood to require the defendant’s actual knowledge of the child’s age when he committed the murder, and that insufficient evidence existed to show that on July 15, 1993, he knew Zachary was under twelve.

While acknowledging that this question has never been presented to this Court, Stevens argues that our holding in Castor v. State should control. In Castor the evidence at trial showed that the defendant might have believed the plain-clothed officers who surrounded him in unmarked cars to be mafia “hit men” when he opened fire and killed one of them. The trial court had instructed the jury according to our previous decision in Moore v. State which stated that the (b)(6) aggravator applies if a defendant “knew or should have known” the victim was a law enforcement officer. Without specifically stating that it was overruling Moore, a bare majority of this Court determined that the aggravator required “actual knowledge” on the part of the defendant, rather the lesser “should have known” standard, and reversed and remanded for a new penalty phase trial and sentencing. The Castor majority said that the deterrence rationale underlying the aggravator justified the holding:

The policy at the base of the exercise of the police power here is to create a special deterrence to the direction of physical force against those upon whom the security of the community depen