Michael D. Overstreet v. Bill Wilson

Filing

Filed opinion of the court by Chief Judge Easterbrook. AFFIRMED. Frank H. Easterbrook, Chief Judge; William J. Bauer, Circuit Judge and Diane P. Wood, Circuit Judge, dissenting. [6411834-3] [6411834] [11-2276]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 11-2276
M ICHAEL D EAN O VERSTREET,
Petitioner-Appellant,
v.
B ILL W ILSON, Superintendent, Indiana State Prison,
Respondent-Appellee.

Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:08-cv-226 PPS—Philip P. Simon, Chief Judge.

A RGUED JANUARY 18, 2012 —D ECIDED JULY 11, 2012

Before E ASTERBROOK, Chief Judge, and B AUER and W OOD ,
Circuit Judges.
E ASTERBROOK, Chief Judge. A jury concluded that Michael
Overstreet kidnapped, raped, and murdered Kelly Eckart.
The jury recommended that he be executed for these
offenses, and the state judge imposed a death sentence.
The Supreme Court of Indiana affirmed Overstreet’s
convictions and sentence, 783 N.E.2d 1140 (2003), and
affirmed an order denying his petition for post-conviction

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relief, 877 N.E.2d 144 (2007). The only issues in this collateral attack under 28 U.S.C. §2254 concern the penalty.
The district court denied Overstreet’s petition. 2011 U.S.
Dist. L EXIS 22175 (N.D. Ind. Mar. 4, 2011).
Overstreet contends that during the penalty proceedings
his lawyers made three errors that individually or collectively amount to ineffective assistance. One supposed
error is that counsel did not ask the trial judge to require
spectators who wore buttons or ribbons with Eckart’s
picture to remove the displays of sympathy for the
victim. Carey v. Musladin, 549 U.S. 70 (2006), shows
that defendants did not have any constitutional right
to such a removal order at the time of Overstreet’s trial
and appeal—and no decision since Carey has created
such an entitlement, let alone held that it would
apply retroactively. Indiana law could give defendants
greater protection than the Constitution does of its
own force, and counsel who failed to ensure that defendants received all of their state-law rights might fail
the performance element of the ineffective-assistance
standard, see Strickland v. Washington, 466 U.S. 668
(1984), but Overstreet does not cite any statute, rule,
or decision establishing that Indiana entitles defendants
to trial in a courtroom free of symbols implying support
for the victim. No juror could have doubted that Eckart
had friends and family who mourned her death. That’s
the message the pictures conveyed, and in the post-conviction proceedings the state trial judge found that Overstreet
had not established prejudice.

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His second contention is that his lawyers failed to
convey “effectively” or “meaningfully” the prosecutor’s
offer of a plea bargain. Overstreet contends that
the prosecutor orally proposed a sentence of life in prison
without possibility of parole. Missouri v. Frye, 132 S.
Ct. 1399, 1408–10 (2012), holds that failure to communicate a plea offer to the defendant is deficient performance.
Overstreet’s lawyers did relay the offer to him, and
he turned it down. He contends, however, that the communication was not effective because he was having a psychotic “break” at the time and could not appreciate
the offer’s significance. Frye does not consider whether
counsel furnish ineffective assistance by failing to
convey a plea offer “effectively”; we assume without
deciding that counsel must do so. Similarly, Frye does
not discuss the proper treatment of oral offers (the Court
stressed that the offer to Frye was a writing that contained
all material terms); we assume, again without
deciding, that counsel’s duty to communicate potential
bargains to their clients covers oral offers before they
are term-complete.
Overstreet has mental problems. The psychiatric evidence in the record leaves little doubt that on some occasions Overstreet would have lacked the ability to
evaluate his legal situation rationally. The evidence
is mixed about Overstreet’s mental state at the time
his lawyers presented the offer for his consideration.
See 2011 U.S. Dist. L EXIS 22175 at *21–26. The district
judge concluded that Overstreet understood the offer
and discussed it intelligently with his sister; Overstreet
says that the judge was mistaken, but we need not de-

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cide. After conducting a six-day hearing on Overstreet’s
request for collateral relief, the judge who had conducted
Overstreet’s trial and imposed the death sentence issued
a lengthy opinion denying his petition. The judge stated
at page 82 of her decision that any shortcoming by
counsel did not cause prejudice because, if Overstreet
had attempted to plead guilty before trial, she would
have rejected the plea. Frye holds that, to show prejudice from counsel’s failure to convey a plea offer,
“defendants who have shown a reasonable probability
they would have accepted the earlier plea offer must
also show that, if the prosecution had the discretion
to cancel it or if the trial court had the discretion to refuse
to accept it, there is a reasonable probability neither
the prosecution nor the trial court would have prevented
the offer from being accepted or implemented.” 132 S.
Ct. at 1410. Here we have a finding, by the trial
judge herself, that she would not have accepted a
guilty plea.
The due process clause permits judges to accept guilty
pleas from defendants who do not admit the factual basis
of the charge against them, when the judge nonetheless
has an adequate basis for finding that the defendant
committed the crime. See North Carolina v. Alford, 400
U.S. 25 (1970). But the Court added that states are
not required to accept such pleas, id. at 38 & n.11,
and Indiana has chosen to forbid Alford pleas. See Carter
v. State, 739 N.E.2d 126, 128–29 (2000). A defendant
who wants to plead guilty in Indiana must admit
the factual basis of the plea in open court. Overstreet
denies having any memory of the night when Eckart

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was killed and said repeatedly —to his lawyers and to
the trial judge—that he could not plead guilty when he
did not know himself to be guilty. This is why the
state judge declared that she would not have accepted
a guilty plea had Overstreet attempted to enter one.
He contends that Carter allows a judge in Indiana to
accept a guilty plea from an amnesiac; according to
Overstreet, Indiana blocks Alford pleas only when
the defendant affirmatively denies culpability. But a
writ under §2254 cannot be based on a federal court’s belief
that the state judiciary misunderstands state law. See,
e.g., Wilson v. Corcoran, 131 S. Ct. 13 (2010). The state
trial judge has told us what she would have done, and
why, had Overstreet attempted to plead guilty; given
Frye’s definition of prejudice, that finding is dispositive.
Oversteet’s third line of argument is that his lawyers fell
short when presenting mitigating evidence during the
sentencing hearing. Given 28 U.S.C. §2254(d), this is
an uphill battle. See, e.g., Cullen v. Pinholster, 131 S.
Ct. 1388, 1401–11 (2011); Harrington v. Richter, 131 S. Ct.
770 (2011); Wood v. Allen, 130 S. Ct. 841 (2010); Wong
v. Belmontes, 130 S. Ct. 383 (2009). The Supreme Court
of Indiana did not contradict any law established by
the Supreme Court; it cited Strickland and accurately
summarized its holding. And, like the district court, we
do not think that the state judiciary acted unreasonably
in holding not only that counsel’s performance was
within the bounds of competence, but also that Overstreet
did not show prejudice from any shortcoming.
Counsel retained the services of three mental-health
professionals: Eric Engum, a neuropsychologist; Robert

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Smith, a clinical psychologist; and Philip Coons, a forensic
psychiatrist. Engum testified at the sentencing hearing
that Overstreet had a “schizotypal personality disorder”,
which he told the jury was “among the most severe of
the personality disorders.” He also testified that Overstreet
had a “severely disturbed personality structure”.
Smith testified in the post-conviction hearing that, had
he been called, he would have testified that Overstreet
had a “schizoaffective disorder”, which Smith defined
as a combination of schizophrenia and depression. It is
unclear whether Coons, had he testified at the sentencing
hearing, would have agreed with Engum, with Smith,
or offered a third view.
Overstreet contends that counsel should have called
Smith as well as Engum, the better to impress on the
jury his mental problems, or should have called
Smith alone, because schizotypal personality disorder
is just a “personality disorder” on Axis II of the
American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, while schizophrenia
is a more serious Axis I “clinical disorder”. The Supreme
Cou rt of Indiana doubted that jurors would
have seen much difference, writing: “it is not at all
clear that a lay jury would necessarily appreciate the
subtle and nuanced distinction between a schizoaffective
disorder and a schizotypal personality disorder.”
877 N.E.2d at 156. Overstreet replies that this shows
that the Supreme Court of Indiana did not understand
the evidence, because Smith would have testified to
schizophrenia. If five appellate judges, after full briefing,
didn’t see the difference between Engum’s approach

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and Smith’s, it is unlikely that a lay jury would have done
so. But Overstreet is wrong about the state court’s appreciation of the evidence; the court expressly related, ibid.,
that to Smith “schizoaffective disorder is a combination
of schizophrenia and depression.”
In this court Overstreet’s lawyers harp on the theme
that an Axis I “clinical disorder” is worse than an Axis
II “personality disorder” and assert the difference
surely would have affected the jury. But it was not clear
to the state judiciary, see 877 N.E.2d at 156, and is not
clear to us, that psychiatric terminology affects juries.
The point of showing a jury that the defendant has a
mental disorder is to reduce blameworthiness, because
juries are more likely to think capital punishment appropriate when a defendant is morally responsible.
See Michelle E. Barnett, Stanley L. Brodsky & Cali
Manning Davis, When Mitigation Evidence Makes a Difference: Effects of Psychological Mitigating Evidence on
Sentencing Decisions in Capital Trials, 22 Behavioral Sciences
& the Law 751 (2004). Overstreet’s lawyers put on
evidence that he has a serious mental abnormality and
contended that he is not blameworthy. Engum and
Smith agreed about Overstreet’s symptoms; they
just attached different labels. Whether his condition
is called “schizotypal personality disorder” or schizophrenia plus depression does not change the nature of
this mitigating strategy.
Smith testified at the post-conviction hearing that his
diagnosis was not close to Engum’s; he views the difference between Axis I and Axis II as substantial. Engum,

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by contrast, testified that there is very little difference
between the diagnoses. (He explained that “if there is
a dividing line between … psychosis and nonpsychosis,
schizotypal is just on the nonpsychotic side. You’re close,
but you’re not quite there.”) The state judiciary
was entitled to accept Engum’s view and to think that
what would have affected jurors was not the formal
classification but the symptoms the two reported —and if
there was any difference in the way the two described
Overstreet’s symptoms, it is hard to discern.
Hallucinations, for example, are among the distinctions
between Axis I and Axis II disorders—yet the line is
not some hallucinations versus none, but their frequency.
Engum diagnosed Overstreet not only with a schizotypal
personality disorder that includes “perceptual distortions”
(in Overstreet’s case, “seeing shadows out of the corner
of his eyes,” Engum testified) but also with occasional
psychotic breakdowns such as the one Engum witnessed.
Engum testified that stresses probably had caused
Overstreet to experience similar episodes in the
past. Periodic episodes of psychosis entail hallucinations
(and Engum so testified); Smith likewise diagnosed
Overstreet with a disorder that involves periodic hallucinations. This is a difference, but not the sort of difference
that marks the line of moral responsibility. Engum testified emphatically that he viewed Overstreet’s ability
to “conform his conduct to the requirements of law” as
“significantly impaired”.
To get around the state court’s finding that jurors
probably would not have seen much difference between

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Engum’s and Smith’s assessments, Overstreet needs more
than his current lawyers’ say-so. His trial lawyers testified
at the post-conviction hearing that they put Engum but
not Smith on the stand for two reasons: first, Engum
saw Overstreet have a psychotic episode and could tell
the jury what happened, while Smith had not seen such
an episode; second, given the decision to have Engum
testify, counsel believed that it would have been imprudent
to put Smith on the stand, because then the jurors would
have learned that mental-health professionals disagreed
about Overstreet’s condition and might have discounted
the testimony of both men.
Overstreet’s current lawyers pooh-pooh these rationales
and insist that their view —that testimony about schizophrenia beats testimony about schizotypal personality
disorder, even from a neuropsychologist who has seen
the defendant undergo a psychotic episode —is the only
sensible approach. Strickland tells us, however, that tactical
decisions by trial counsel cannot be declared ineffective
just because a different set of lawyers would have handled
things differently. Overstreet’s trial counsel made
an informed choice, quite unlike the situation in Wiggins
v. Smith, 539 U.S. 510 (2003), where counsel had not
done an investigation; Overstreet’s lawyers decided how
to proceed only after receiving the views of three mentalhealth professionals.
To undermine trial counsel’s choices, and the state
judiciary’s findings about prejudice, Overstreet needs
more than lawyers’ talk. He needs evidence showing
that no reasonable lawyer would have thought Engum

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the better witness, and that jurors would be less likely
to recommend death for a defendant who has schizophrenia —and that both of these propositions are so strongly
supported that the contrary decision by the state judiciary
is unreasonable. But the brief does not point to any such
evidence; it relies entirely on current counsel’s certitude. If
we must choose between the belief of the state judiciary
that Engum and Smith would have left pretty much the
same impression on the jurors, and the belief of
Overstreet’s current lawyers that the two would have had
a materially different effect, both §2254(d) and §2254(e) tell
us that the federal judiciary must prefer the conclusions of
the state judiciary. It takes clear and convincing evidence
to upset a state court’s factual finding, see §2254(e)(1), and
lawyers’ beliefs, however confident and sincere counsel
may be, are not “evidence” at all.
In the state post-conviction hearing, Overstreet’s new
lawyers did not present evidence from an expert in
jury psychology, or a statistician, that capital juries
are more favorably disposed toward defendants
whose condition is called schizoaffective disorder
than when the same condition is called schizotypal personality disorder. Overstreet’s briefs do not cite any studies
in the medical or psychological literature about
how different psychiatric terms affect juries. We asked
at oral argument whether counsel knew of such a study;
the answer was no. We looked and could not find one.
A few studies find that the man in the street has different
impressions of different psychiatric conditions. See Melody
S. Sadler, Elizabeth L. Meagor & Kimberly E. Kaye, Stereotypes of Mental Disorders Differ in Competence and Warmth,

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74 Social Science & Medicine 915 (2012); Bruce G. Link,
Jo C. Phelan, Michaelene Bresnahan, Ann Stueve &
Bernice A. Pescosolido, Public Conceptions of Mental Illness:
Labels, Causes, Dangerousness, and Social Distance, 89 Am.
J. Pub. Health 1328, 1330 (1999). But these studies do
not concern the behavior of jurors after being informed
by testimony; they take untutored public beliefs as
givens rather than evaluating laypersons’ responses
to evidence. So the contest boils down to the beliefs held
by Overstreet’s current lawyers, versus the beliefs held
by his trial lawyers and Indiana’s judiciary. Under Strickland and the AEDPA, trial counsel and the state
judiciary must prevail.
Overstreet has some other arguments about the evidence
presented in mitigation, but they pale beside the one we
have addressed and do not require discussion.
A FFIRMED

WOOD, Circuit Judge, dissenting. No one who has
followed the law of federal post-conviction relief for state
prisoners since 1996, when the Anti-Terrorism and Effective Death Penalty Act (AEDPA) went into effect, is under
the impression that this is a readily available remedy.
Indeed, the real question is whether its promise is anything
more than an illusion. Success in obtaining relief under

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28 U.S.C. § 2254 sometimes seems just as difficult as
the rich man’s quest to enter the Kingdom of Heaven,
compared in the Bible to a camel’s passing through the
eye of a needle. See Matthew 19:23-24. The number of
cases in just the last three years in which the Supreme
Court has overturned a federal court of appeals for erroneously granting relief under 28 U.S.C. § 2254 is
legion; indeed, the Court has often (though not always)
chosen to handle these cases on a summary basis, with
per curiam opinions. See, e.g., Parker v. Mathews, 132 S. Ct.
2148 (2012) (mem.) (reversing 6th Circuit); Coleman v.
Johnson, 132 S. Ct. 2060 (2012) (reversing 3d Circuit); Wetzel
v. Lambert, 132 S. Ct. 1195 (2012) (mem.) (reversing 3d
Circuit); Hardy v. Cross, 132 S. Ct. 490 (2011) (mem.)
(reversing 7th Circuit); Bobby v. Dixon, 132 S. Ct. 26 (2011)
(mem.) (reversing 6th Circuit); Cavazos v. Smith, 132 S. Ct.
2 (2011) (mem.) (reversing 9th Circuit); Cullen v. Pinholster,
131 S. Ct. 1388 (2011) (reversing 9th Circuit); Felkner v.
Jackson, 131 S. Ct. 1305 (2011) (mem.) (reversing 9th Circuit); Premo v. Moore, 131 S. Ct. 733 (2011) (reversing 9th
Circuit); Harrington v. Richter, 131 S. Ct. 770 (2011) (reversing 9th Circuit); Berghuis v. Thompkins, 130 S. Ct. 2250
(2010) (reversing 6th Circuit); Renico v. Lett, 130 S. Ct. 1855
(2010) (reversing 6th Circuit); and Thaler v. Haynes, 130
S. Ct. 1171 (2010) (mem.) (reversing 5th Circuit).
But we know that the Court does not mean to suggest
that the statute is an empty vessel, because it occasionally
rules that a habeas corpus petition may go forward, or
at least it permits a decision granting relief to stand.
See, e.g., Lafler v. Cooper, 132 S. Ct. 1376 (2012) (upholding

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6th Circuit’s finding of violation but remanding on remedy); Wood v. Milyard, 132 S. Ct. 1826 (2012) (reversing 10th
Circuit decision that petition was untimely); Allen v.
Lawhorn, 131 S. Ct. 562 (2010) (mem.) (denying certiorari
over three dissents in case where the 11th Circuit
granted relief); Wellons v. Hall, 130 S. Ct. 727 (2010) (mem.)
(11th Circuit denied relief but Supreme Court reverses);
Holland v. Florida, 130 S. Ct. 2549 (2010) (Supreme Court
reverses 11th Circuit holding that petition was untimely);
Jefferson v. Upton, 130 S. Ct. 2217 (2010) (mem.) (rejecting
11th Circuit’s denial of relief). Important decisions construing AEDPA and ruling in favor of the petitioner, such
as Panetti v. Quarterman, 551 U.S. 930 (2007) (competency
to be executed), Wiggins v. Smith, 539 U.S. 510 (2003)
(effectiveness of counsel), and Williams v. Taylor, 529 U.S.
362 (2000) (effectiveness of counsel), reinforce this point.
In the case before us, petitioner Michael Overstreet is
pursuing a collateral attack under 28 U.S.C. § 2254 against
the conviction and the resulting death sentence he received
for his brutal murder of Kelly Eckart. In general, he
asserts that he received constitutionally ineffective assistance of counsel. He focuses on three particular instances
where counsel let him down, the first relating to
their handling of an alleged plea bargain, the second
relating to the trial court’s handling of the spectators in
the courtroom, and the third relating exclusively to the
sentencing proceeding. I agree with my colleagues’ disposition of the first two arguments, but I cannot subscribe
to their handling of the third. See Opinion, ante at 5-11.
In my view, something far more serious and sinister than
a simple semantic debate over what Overstreet’s mental

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illness should be labeled tainted his sentencing hearing.
This error has led both the state courts and my colleagues
to an unreasonable application of the well known standard
of Strickland v. Washington, 466 U.S. 668 (1984). This
misapprehension will have literally fatal consequences
for Overstreet. I therefore respectfully dissent.

I
As my colleagues acknowledge in a profound understatement, “Overstreet has mental problems.” Ante at 3. It
was therefore critical at the sentencing stage of his murder
trial to place before the jury an accurate picture of
the severity of his condition. This information about
Overstreet’s mental problems was essential to enable
the jury to decide what punishment was proper for
his offense. Every lawyer involved in the case, from
his first attorney (Roy Dickinson), onward had recognized
that Overstreet’s mental condition had to be assessed.
Dickinson filed a notice of insanity and requested
a psychiatric evaluation. Successor counsel Jeffrey Baldwin
and Peter Nugent sought funds for a mitigation specialist
to investigate Overstreet’s life. Such a person was appointed, but his task was thwarted by Overstreet’s inability
to recall not only the crimes, but virtually anything
about his childhood. Instead, Overstreet perseverated
with questions about the reality of the interview and
what was happening at that time; he sometimes was
unable to recognize the person to whom he was speaking.

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Three months before trial, counsel asked for and received
funds to engage a mental health expert. They found Dr.
Eric Engum, a neuropsychologist. Dr. Engum diagnosed
Overstreet as “a relatively high functioning and welldefended schizophrenic, paranoid type.” Tr. at 803.
He recommended an assessment by “a psychiatrist with
expertise in psychotic disorders, especially schizophrenia.”
Id. at 804. One month before the trial, Overstreet dissolved
into a psychotic state while he was in the presence of
both his lawyer and Dr. Engum. He was engaging in
delusional behavior, disorganized speech, and grossly
disorganized behavior. After witnessing this, Dr. Engum
changed his primary diagnosis from schizophrenia to
a schizotypal personality disorder.
The defense also engaged a second expert, Dr. Robert
Smith, who is a clinical psychologist. He diagnosed
Overstreet with schizoaffective disorder, which is a
combination of schizophrenia and depression; in addition,
he identified alcohol dependence as a problem. Dr. Smith
later testified that his diagnosis was not even “pretty close”
to that of Dr. Engum. PCR at 517. Dr. Engum specifically
did not diagnose Overstreet with the disease schizophrenia.
Finally, a third expert hired by the defense, psychiatrist
Dr. Philip Coons, diagnosed Overstreet with dissociative
disorder and schizotypal personality disorder. Dr. Coons
was unaware at the time that Smith had also evaluated
Overstreet. He later said that had he known of the underlying information in Smith’s report as well as information
in other sources, he too would have diagnosed Overstreet
with the disease schizophrenia.

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In order to understand what these competing diagnoses
really mean, it is necessary to turn for a moment to
the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR), which is published by the American Psychiatric Association. The DSM is widely recognized as the
authoritative source for information about various mental
conditions. It uses a multiaxial system for assessments.
Id. at 27. The axes are as follows:
Axis I:

Clinical Disorders
Other Conditions That May Be a Focus of
Clinical Attention

Axis II:

Personality Disorders
Mental Retardation

Axis III: General Medical Conditions
Axis IV: Psychosocial and Environmental Problems
Axis V:

Global Assessment of Functioning

Id. The critical distinction for our purposes is the one
between Axis I, which addresses “clinical” disorders, and
Axis II, which addresses “personality” disorders. This
is not a mere matter of terminology. Schizophrenic disorders are classified under codes 295.30, 295.10,
295.20, 295.90, and 295.60. Id. at 303. The introduction
to this section explains that the disorders (schizophrenia,
schizophreniform disorder, schizoaffective disorder, and
a few others) “include psychotic symptoms as a prominent
aspect of their presentation.” Id. at 297. The term “psychotic” refers to “delusions, any prominent hallucinations, disorganized speech, or disorganized or cata-

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tonic behavior.” Id. The manual later notes that “[t]he
characteristic symptoms of Schizophrenia involve a range
of cognitive and emotional dysfunctions that include
perception, inferential thinking, language and communication, behavioral monitoring, affect, fluency and productivity of thought and speech, hedonic capacity, volition and
drive, and attention.” Id. at 299. No single symptom is
either necessary or sufficient; instead, the person
will display a “constellation of signs and symptoms.” Id.
Personality disorders, in contrast, are described as “an
enduring pattern of thinking, feeling, and behaving that
is relatively stable over time.” Id. at 688. There is undoubtedly some overlap between the Axis I clinical disorders
and the Axis II personality disorders. Nevertheless,
when one reads through the discussion of Schizoid Personality Disorder, DSM-IV-TR 301.20, and Schizotypal Personality Disorder, DSM-IV-TR 301.22, it is apparent that
these are distinct conditions from the clinical disorder
known as Schizophrenia, described in general at DSM-IVTR page 312, with the various subtypes set forth in
the DSM codes mentioned earlier (beginning with DSM-IVTR 295.30). Notably, the DSM stresses that persons suffering from Schizophrenia or Schizoaffective disorder
have more severe and persistent psychotic symptoms
than do those with Schizotypal Personality Disorder.
See id. at 699-700 (“Schizotypal Personality Disorder can
be distinguished from Delusional Disorder, Schizophrenia,
and Mood Disorder with Psychotic Features because these
disorders are all characterized by a period of persistent
psychotic symptoms (e.g., delusions and hallucinations).”)

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This brief discussion sheds light on why the experts
themselves in Overstreet’s case recognized the critical
nature of the distinction between Dr. Engum’s diagnosis
of a schizotypal personality (about which the jury heard
at sentencing) and Dr. Smith’s diagnosis of a
schizoaffective disorder (about which it heard nothing,
even though apparently the trial court had a truncated
version of a report, without any explanatory testimony).
The importance of the distinction becomes even more
apparent when we look at the two elements of Overstreet’s
argument about ineffective assistance of counsel: deficient
performance, and prejudice. See Strickland, supra.
Deficient performance. Overstreet asserts that his counsel’s
performance fell below the constitutional minimum when
counsel failed to present the full and accurate picture of
his mental illness and family history to the sentencing jury.
The state court rejected this argument, although it offered
no explanation for that conclusion, choosing instead
to discuss only prejudice. Even accepting the fact that
state courts have no obligation to say anything at all, see
Richter, 131 S. Ct. at 784, the court’s conclusion in this case
about counsel’s performance is entirely arbitrary.
My colleagues would have us understand Overstreet as
saying only that his lawyers were ineffective because
they decided to call Dr. Engum rather than Dr. Smith. In
fact, that is bad enough, since it left the sentencing
jury with the idea that he was merely suffering from
an enduring personality disorder, rather than from a
serious psychotic illness. The ineffectiveness of that
decision would be apparent if Expert A had diagnosed

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Defendant X with epilepsy, while Expert B opined that X
was merely exhibiting histrionic behavior. Epilepsy is a
well recognized disease, and the trier of fact could not do
its job unless both opinions were properly before it. Our
case is no different: Dr. Smith thought Overstreet was
suffering from the Axis I clinical psychotic disorder known
as schizophrenia, while Dr. Engum thought the problem
was far less severe. But the problem is even worse
than the lawyers’ failure to call Dr. Smith: they actually
entered into a factually inaccurate stipulation that
Drs. Smith and Engum had made the same diagnosis.
(The majority opinion has nothing to say about this
problem.) And this characterization does not depend on
our research and interpretation of the DSM. Drs. Smith
and Engum agreed that schizophrenia is a more severe
diagnosis than schizotypal personality. Dr. Smith testified
at the state post-conviction hearings that his diagnosis was
not, contrary to the majority’s description here,
even “pretty close” to Dr. Engum’s. Dr. Engum also
testified —to the jury —that schizophrenia was distinct and
characterized by more severe symptoms, and he told
them that Overstreet was not “quite there.” The state court
seems to have assumed that the jury would not
have understood the difference between the two professional opinions, but there is no evidence in the record
to support that prediction. Dr. Smith’s later testimony
was certainly in plain English, and one must assume
that he could have communicated just as well with the
jury.

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The majority, in my view, has either misunderstood or
mischaracterized Overstreet’s argument. They say that
Overstreet “contends that counsel should have called
Smith as well as Engum, the better to impress on the
jury his mental problems.” Ante at 6. I cannot find that
argument in Overstreet’s brief. Instead, Overstreet emphasizes that counsel failed to understand the distinction
between Dr. Engum’s and Dr. Smith’s diagnoses and
then compounded the error by making an unreasonable
decision to “present the vacillating Engum rather
than Smith, who had diagnosed Overstreet with a significantly more severe illness.” Overstreet Br. at 40.
Next, although the opinion correctly recognizes the
argument that Overstreet should have called Dr.
Smith alone, ante at 6, it goes on to state that it would
be reasonable for the state court to assume that jurors
would not have been affected by “the formal classification”
of Overstreet’s disease. It also asserts that “if there was any
difference in the way the two described Overstreet’s
symptoms, it is hard to discern,” ante at 8. But the reason
it is hard to discern is precisely because the lawyers
themselves failed to bring out the important differences.
Overstreet is not arguing merely about labels, but about
what those labels mean: schizophrenia and schizotypal
disorder are two distinct diseases, with different symptoms
and presentations and different levels of severity.
Overstreet’s trial lawyers missed this critical difference,
which the DSM-IV-TR spells out at length, and which they
should have been aware of given the two different diagnoses made at the time. There is no reason to think that the
jury would not have grasped this difference, if anyone had

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told them about it. Instead, they were told, inaccurately,
that all doctors agreed that Overstreet had schizotypal
disorder, and they were told that this was less severe than
schizophrenia. Dr. Engum told jurors that Overstreet was
not psychotic, did not have hallucinations (he minimized
them as “perceptual distortions”), and would not have met
the test for the insanity defense because of his condition.
Dr. Smith’s testimony would have been the opposite
in each of these respects.
In the end, I see no choice but to conclude that
Overstreet’s lawyers handled the expert testimony at
sentencing as they did, not because they were making a
strategic decision, but because they were ignorant —they
simply did not understand the evidence before
them. Ignorance is the antithesis of strategy. We thus have
no reason to defer to their actions. My colleagues
also criticize Overstreet for failing to present evidence
showing that no reasonable lawyer might have preferred
Dr. Engum, but I do not read the record that way. At
the state post-conviction hearings, Overstreet presented
testimony that addressed this very point from two criminal
defense experts, Johnson and McDaniels. Johnson testified
in the state court that Overstreet’s counsel’s
oversight about the distinction between the two doctors’
diagnoses was “the crux of the problem” because
the attorneys were working under “the false assumption
that your client has an [Axis] two diagnosis [the personality disorder]. . . . And if that’s not true, you’re leading
everyone to believe that this individual, the disorder
that he suffers from, is not nearly as great as it is.” PCR
at 777. Lastly, my colleagues speculate that counsel might

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rationally have chosen to call Dr. Engum instead of
Dr. Smith because it was Dr. Engum who witnessed a
psychotic episode by Overstreet, and further that
they might have feared that the jury would be confused
by conflicting diagnoses. Overstreet’s brief in this
court, however, indicates that the post-conviction record
contains evidence from counsel to the effect that they
had no memory of why they chose to call Dr. Engum
and not Dr. Smith. It is not our part to fill in blanks in
the record, and so I would give this hypothesis no weight.
Before moving on to the subject of prejudice —which I
acknowledge would be enough by itself to defeat
Overstreet’s petition, if it cannot be shown —I note that the
state court made no mention of a number of additional
deficiencies in counsel’s performance. Counsel failed
to follow the prevailing professional guidelines in effect
at the time of the trial—that is, the 1989 ABA guideline
mandating that a defense lawyer should begin a sentencing
investigation immediately. ABA G UIDELINES FOR THE
A PPOINTMENT AND P ERFORMANCE OF C OUNSEL IN
D EATH P ENALTY C ASES 11.8.3 (1989). Overstreet’s lawyers
failed to start the process of obtaining psychiatric evaluations until just a few months before trial. In addition,
they presented no evidence to explain why Overstreet
may not have sought treatment, or may not have complied
with the treatment he was given, even though
those behaviors are symptoms that go along with
his mental illness. This meant that they were utterly unable
to respond when the state trial court repeatedly cited
Overstreet’s failure to get treatment to lessen the weight
that she gave to the mitigating impact of the illness. In

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fact, counsel did not even bring out the fact that in the
months leading up to the crime, Overstreet had been
prescribed the drug Paxil, which may perversely have
aggravated his symptoms.
The district court thought that Overstreet’s case was
very much like the one we considered in Woods v. McBride,
430 F.3d 813 (7th Cir. 2005), but a closer look at Woods
just shows why Overstreet’s case should succeed when
that one failed. Woods did “not explain[] what any witness
would have said, or any investigation would have uncovered, that might have led to a different sentence.” Id. at
823. “Really, Woods’s claim boils down to the contention
that his counsel did not present enough mitigating evidence.” Id. at 826 (emphasis in original). Overstreet’s
case could not be more different. Overstreet is not complaining generically that his counsel did not present enough
mitigating evidence. He is pointing to specific mitigating
evidence that was in existence, that his counsel failed
to put before the jury, and that would have revealed to
the jury that at least one expert —Dr. Smith —believed that
Overstreet was suffering from a much more severe mental
illness. Nothing in Woods compels, or even supports,
the outcome my colleagues have reached here.
Prejudice. The state court gave three reasons for
its finding that Overstreet was not prejudiced by counsel’s
performance. First, it concluded that it was not clear that
a lay jury would have understood the difference between
schizophrenia (or schizoaffective disorder) as opposed to
a schizotypal personality disorder. Second, the court noted
that even though Dr. Smith did not testify, Dr. Engum

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opined that Overstreet met the legal definition for mitigation: he was suffering from an extreme mental disturbance
and was unable to conform his conduct to the law. Last,
the court found that the trial court had considered the
written report of Dr. Smith.
I address the last point first. Overstreet points out that
the trial court did not in fact consider Dr. Smith’s
full written report, because that report was not before
it. My own examination of the record indicates that this
is accurate. Despite the trial court’s statement that it
had Dr. Smith’s report, the record contains only a letter
from Dr. Smith in which he reports his diagnosis
(schizoaffective disorder) but does not explain it further. The sentencing order just restates that diagnosis
without mentioning how it differs from that of Dr.
Engum. In fact, the following language in the order
appears to conflate the two opinions and treat them
as equivalents: “Both Dr. Smith and Dr. Engum have
diagnosed the Defendant with personality disorders.
Dr. Smith has assessed the disorder as ‘schizo affective
disorder’ and Dr. Engum as ‘schizotypal personality
disorder.’ ” Tr. at 1300; see also Tr. at 5456 (making same
mistake in court hearing). This entirely overlooks the
important difference reviewed above between psychotic
clinical disorders and broader-range personality disorders.
Perhaps this error is what led the state post-conviction
court to decide not to reweigh the mitigating evidence that
counsel should have presented aga inst the aggravating
evidence, to see if there was a reasonable probability
that the jury would not have imposed the death sentence

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if it had known about Dr. Smith’s opinion and its
full import. That is the duty that Strickland imposes on
a court, see Williams, 529 U.S. at 397-98, and the state
court failed to carry it out. To the extent that the original
trial court gave the psychiatric testimony any weight,
the court unequivocally erred by downplaying its significance for the reason that Overstreet had not sought treatment during the six months leading up to the crime. At
one point, the court even implied that the failure to
seek treatment was an aggravating factor. This fundamentally misunderstands Overstreet’s disease. Schizophrenic
people often fail to seek treatment, as Dr. Coons
testified later, “because they don’t really have insight
into their illness.” PCR at 460.
The trial court also found no prejudice because
Overstreet had taken steps to conceal his crime; these
actions, it believed, supported a finding of responsibility.
It is true that Overstreet cleaned out his van and revisited
the crime scene after the deed was done. But if the
court had had Dr. Smith’s full diagnosis before it and
had taken it seriously, it would likely have placed different
weight on this evidence. Overstreet’s hallucinations
and delusions involved compulsions to follow the
orders of demons (a classic sign of severe schizophrenia).
This compulsion might have affected either his
commission of the crime or his efforts to cover it up,
or both. As Dr. Coons testified, “The disorder is always
present [though] hallucinations are intermittent.” PCR at
525.

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Last is the prejudice that counsel inflicted on Overstreet’s
case by opting to use Dr. Engum as its star witness.
Nothing but lack of preparation can explain this
choice. The best evidence of this comes from the state’s
closing argument:
The most amazing thing about Dr. Engham [sic] is
that if you take him for what he says at his face, he
helps the State. I’m surprised after hearing him
testify that he actually was called by the Defense.
. . . Dr. Engham testified the Defendant had above
average intelligence, he was not insane, he was not
schizophrenic, no multiple personalities going on here,
he was not psychotic, said he might have had psychotic
episodes . . . but Dr. Engham said that could have all
been faking. He [Overstreet] was characterized by
Dr. Engham as having a schizotypal personality
disorder. When asked what that means in layman’s
terms, he said well, 40 or 50 years ago they would
have called this guy a hermit. A hermit. He indicated, as we talked about before, not extreme, less
than extreme, six to seven on a scale of one to ten.
Tr. at 5322 (emphasis added). The state’s lawyer did
not mischaracterize Dr. Engum’s testimony. Dr. Engum
spoke at length about Overstreet’s high IQ, which he found
surprising in light of Overstreet’s low levels of academic
performance (a fact that he attributed to lack of willpower).
Even when he presented the diagnosis of schizotypal
personality disorder, he minimized the seriousness of
that condition. He left the impression that people with
that disorder are merely needy, saying “They’re highly

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dependent upon others, they strongly need attention and
affection, but they don’t get very much because they,
themselves, can’t give very much back.” Tr. at 5085.
The overall impression Dr. Engum left was not changed
by his brief admission during his testimony that he witnessed Overstreet experiencing a psychotic episode and
his concession that people with schizotypal personality
disorder can sometimes experience psychotic symptoms.
His emphasis throughout was that schizotypal personality
disorders fell on the “nonpsychotic side” of disorders.
Dr. Smith’s testimony would have given the jury the
opposite viewpoint. The majority believes this difference
is not so great as to “mark[] the line of moral responsibility.” Ante at 8. But we do not know what level of moral
responsibility the jury would have assigned to Overstreet
had it been presented with accurate information about
the severity of his condition. I do not share the majority’s
certainty that it would have made no difference, especially
in light of the entirety of Dr. Engum’s testimony, which
consistently minimized the severity of Overstreet’s illness,
in contrast to Dr. Smith’s testimony at the post-conviction
hearing. Not just common sense, but also medical research,
demonstrates that lay persons react differently to different
types of mental illnesses. See, e.g., Melody Sadler et al.,
Stereotypes of Mental Disorders Differ in Competence
and Warmth, 74 SOC. S CI. & M ED . 915 (2012) (assessing lay
stereotypes of various mental illnesses and concluding
that stereotypes and perceptions of those illnesses differed
based on the diagnostic label); Bruce Link et al.,
Public Conceptions of Mental Illness: Labels, Causes, Dangerousness, and Social Distance, 89 A M . J. P UB. H EALTH 1328,

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1330 (1999) (“The public makes clear distinctions between
the disorders in terms of their causes.”). It does not matter
that these studies were not conducted specifically with
jurors. There is no reason to think that jurors (who after
all are lay persons too), would not also react differently
to more and less severe mental illnesses. There is a reasonable probability that presenting the jury with Dr. Smith’s
testimony that Overstreet had a severe and persistent
psychotic disorder would have changed the outcome of
the life-and-death decision it had to make.
*

*

*

The district court, and now my colleagues, have concluded that this record does not show that the decision
of the Supreme Court of Indiana was objectively unreasonable, as it must be in order to warrant the grant of
Overstreet’s petition under § 2254. With respect, I
cannot agree with them. The only three explanations
that the state supreme court gave were unreasonable,
because they were based on inaccurate factual assumptions. At the heart of the problem lies counsel’s deficient
performance in failing to put before the sentencing jury
the available evidence showing the seriousness
of Overstreet’s mental illness. A capital jury cannot make
its decision with only half of the story before it, or
worse, with objectively inaccurate information. Indeed,
the Supreme Court has stressed that the defendant must
be able to put all of his mitigating evidence before such a
jury. See Wiggins, 539 U.S. at 537; Williams, 529 U.S. at
396. Overstreet was prejudiced when that opportunity
slipped away because of his counsels’ decisions.

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I would grant the petition for a writ of habeas corpus
limited to the sentence imposed, and I would give the state
an opportunity to conduct resentencing proceedings within
a reasonable period of time. I therefore respectfully dissent.

7-11-12