David Frentz v. Richard Brown

Filing

Filed opinion of the court by Judge Darrow. AFFIRMED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and Sara Darrow, District Court Judge. [6885785-1] [6885785] [15-3479]

Case: 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3479
DAVID MARK FRENTZ,
Petitioner-Appellant,
v.
RICHARD BROWN,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-1311-TWP-DKL — Tanya Walton Pratt, Judge.

____________________
ARGUED OCTOBER 25, 2017 — DECIDED NOVEMBER 22, 2017
____________________
Before KANNE and SYKES, Circuit Judges, and DARROW,
District Judge.*
DARROW, District Judge. David Frentz filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 after the
Court of Appeals of Indiana affirmed the denial of his petition for postconviction relief in state court. That petition at-

*

Of the Central District of Illinois, sitting by designation.

Case: 15-3479

2

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

tacked Frentz’s conviction for the January 24, 2005 murder of
his housemate, Zackary Reynolds. Before his trial on that
charge, Frentz had filed a notice that he would pursue a defense of not guilty by reason of insanity, but, after consulting
with an expert, did not pursue the defense. Frentz was convicted by a jury of the murder, and of associated drug charges, and sentenced to 59 years of imprisonment. He appealed
to the Court of Appeals of Indiana, which affirmed. He then
filed his postconviction petition in Indiana court alleging ineffective assistance of counsel for, among other things, not
having pursued the insanity defense. His petition was denied, and he appealed to the Court of Appeals of Indiana,
which affirmed the denial. The Indiana Supreme Court denied transfer of the case,1 and Frentz filed a petition for writ
of habeas corpus in the Southern District of Indiana. The district court denied the petition, and declined to issue a certificate of appealability. This Court then granted the certificate,
finding that Frentz had made a substantial showing of the
denial of his right to effective assistance of counsel because
counsel failed to pursue an insanity defense.
Because the Indiana appellate court did not unreasonably
apply federal law in denying Frentz’s postconviction petition, we now affirm the district court’s decision.

1

In Indiana, the judgment of the appellate court is final unless the
Indiana Supreme Court grants a Petition to Transfer, which has the effect
of vacating the previous appellate judgment and giving the Indiana Supreme Court jurisdiction over the appeal “as if originally filed in the Supreme Court.” Ind. R. App. P. 58(A).

Case: 15-3479

Document: 43

No. 15-3479
I.

Filed: 11/22/2017

Pages: 18

3

Background 2

Frentz, who was 53, lived with Reynolds, 23, who
worked on Frentz’s farm in Orange County, Indiana. Frentz
was an alcoholic and had been drinking heavily for 35 years;
on Saturday, January 22, 2005, his doctor told him that he
would die if he did not stop drinking. His doctor gave him
medication to deal with delirium tremens, a symptom of alcohol withdrawal. He stopped drinking that day.
On Sunday, January 23, Frentz ran errands, worked on a
pickup truck with Reynolds at the house they shared, and
then ran more errands. On his way back to the house Frentz
stopped at a fast-food drive-through in Salem, Indiana, between 10:00 and 11:00 in the evening. During this time he
talked on his cell phone with his friend Carl Brock. Frentz
told Brock that he had been “feeling bad,” and had been
having hallucinations, including, according to Brock “either
light poles or salt shakers dancing or something like that …
dogs running across the road laughing at him and stuff like
that.” Worried, Brock asked Frentz to call him when he got
home.
Brock called Frentz an hour or two later. Frentz asked
Brock and Brock’s wife if either of them had heard from
Dusty Austin, Frentz’s ex-girlfriend. Frentz claimed to have
been “fucked over” by a friend, Chuck Woolsey, who he now
2

The facts pertaining to the conduct with which Frentz was charged
are taken, unless otherwise stated, from the Court of Appeals of Indiana
order denying Frentz’s postconviction petition, Frentz v. State, 875 N.E.2d
453, 457–462 (Ind. Ct. App. 2007). See 28 U.S.C. § 2254(e)(1); see also
Caffey v. Butler, 802 F.3d 884, 887–888 (7th Cir. 2015), cert. denied, 136 S.
Ct. 1527 (2016) (presuming that the state courts’ account of the facts is
accurate unless rebutted by clear and convincing evidence).

Case: 15-3479

4

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

thought to be involved with Austin. According to Brock,
Frentz went during this conversation from “feeling ill and
hallucinating to someone who was very sober and [not] really talkative at all.” Brock made some jokes, hoping to lighten
the mood; instead, Frentz hung up. Brock tried calling him
back immediately, with no luck.
At about 3:30 a.m., Brock was able to reach Frentz on the
phone. Frentz sounded “freaked out,” and told Brock to call
the police. Frentz also said during this conversation that “he
put PCP in that shit and people [are] up here to fuck with
us.” (Brock assumed this was in reference to Woolsey.) During the conversation, Frentz was “hollering” at Reynolds,
but Brock never heard Reynolds say anything back. When
Brock asked to talk to Reynolds, Frentz hung up. When
Brock’s wife called Frentz back and asked to talk to Reynolds, Frentz hung up again.
Sometime early that morning, two of Frentz’s neighbors
saw and heard Frentz’s pickup truck speeding down the
road. Frentz called 911 at about 5:30 a.m., and said that several people were trying to break into his house. The connection cut out several times, but Frentz conveyed that people
had broken into his house, that one of them was shooting,
that his friend had been shot in the chest but was still breathing, that the people were still in his home, that they were
“trying to get in the windows,” and doors, and that he had
“locked the door back.” Police officers arrived at his house to
find no signs of vehicle or foot traffic outside. Frentz was
standing in his kitchen, looking disoriented and agitated. He
opened the door for the officers, one of whom saw an SKS
assault rifle lying on a kitchen chair. The police handcuffed
Frentz, who was wearing only underwear and a t-shirt and

Case: 15-3479

No. 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

5

was “sweating really bad.” Frentz told the officers that motorcycle-riding Mexicans had broken into his house and that
there was someone in his bed. There was no sign of anyone
in Frentz’s bed, or any struggle or forced entry, but the officers found Reynolds, lying face-up in the hallway in a pool of
blood, on top of a loaded .22 caliber rifle.
He was dead, shot three times at close range. There were
traces of Reynolds’s DNA on Frentz’s shirt. A bullet lodged
near his spine was confirmed by forensic testing to have
come from the SKS. There were four shell casings in the
hallway of the same caliber as the SKS. There were three bullet-holes in the door Reynolds had been standing in front of
when he was shot, and also several bullet-holes in Reynolds’s bedroom window. More shell casings, of the same caliber, were nearby.
Frentz told several stories about the events of that morning. First, he told officers at the scene that he had been asleep
in his bedroom when he heard a scuffle at the other end of
the house. He said he had grabbed the .22, walked down the
hallway, and seen two Hispanic men leaving the house
through the back door. He said that he had had seen Reynolds fighting with a third over the SKS, had put the .22 down
and grabbed the other man, and then had heard two gunshots. The Hispanic man then left with the other two in a
sport utility vehicle. The men had gotten in through a window, Frentz said.
After he had been taken to the police station and mirandized, Frentz gave a substantially similar account, adding
that before Frentz had gone to sleep, Reynolds had been
playing cards and drinking beer with two young white men
Frentz didn’t know, that he had heard a motorcycle engine

Case: 15-3479

6

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

when the Hispanic men fled, and that someone had fired
shots from outside the house that passed through the window and out the back door.
When interviewed by officers later that day, Frentz said
that he had stopped drinking “cold turkey” on Saturday after thirty years, and had been given medication. He said
that, in a conversation he had had with his mother on the
phone the previous day, he had not told her mother he was
hallucinating, but that he felt “fuzzy” from the medication.
He said that Reynolds had been “just outside of his door”
when he was shot, and that he remembered hearing three
gunshots. He added that the 911 operator had told him to
put pressure on Reynolds’s bleeding wounds, that he had
done so, and that he had loved Reynolds “like my boy.”
The next morning, Frentz asked to speak with officers
again. He told them that he had taken his medication the
night before and that it had caused him hallucinations like it
“was givin’ [him] the DT’s” instead of taking them away. He
added that Reynolds had bought drugs that weekend from a
person interested in his ex-girlfriend, Austin, and wondered
whether that person might have altered the drugs and persuaded Reynolds to give him some. He denied, however,
that his medication or any of the drugs he might have taken
could have caused him to “just randomly start shootin’ that
rifle.”
Frentz also spoke, while in county jail, with two other
inmates, Troy Brackett and David Turner, both of whom, unfortunately for Frentz, ended up testifying at his trial. Brackett said that Frentz had told him two men, A. J. Guthrie and
Eric Lloyd, had sold methamphetamine to Reynolds and
then tried to steal it back. Reynolds had been accidentally

Case: 15-3479

No. 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

7

shot in the struggle that followed. Brackett also said that later, Frentz told him that Reynolds and he had argued about
the drugs purchased from Guthrie and Lloyd, who had originally bought the drugs from Woolsey, who was living with
Austin. According to Brackett, Frentz said he had heard a
noise that night and “played to his role” and shot Reynolds
with the SKS. Frentz is also supposed to have said that
Reynolds “shouldn’t have been messing with [his] old lady.”
Turner testified that Frentz told him he had come home
on Sunday and found Reynolds with Guthrie and Lloyd,
then gone to bed, after rejecting Reynolds’s offer of methamphetamine. Later, Frentz got up and told Reynolds that it
was a bad idea to have “all that meth” in front of Guthrie
and Lloyd, who later broke back in to steal it back. Turner
said Frentz asked him what he, Turner, thought of this story;
Turner reportedly said that, if he were on a jury, he would
vote to convict Frentz. Later, Frentz told Turner a version in
which Woolsey and Austin hired Mexicans to break into the
house and kill him for his life insurance policy, but shot the
wrong man. He also said that he had sent Reynolds to persuade Austin to come to his house, but that after Reynolds
had been gone for a while, Frentz started to suspect Austin
and Reynolds of being romantically entangled. That night,
Frentz said he had looked out his window and seen Austin
standing next to a telephone pole, and, thinking that she and
Reynolds were planning to run away together, had grabbed
a gun with which to confront Reynolds. Frentz then shot
Reynolds, realized he’d made a mistake, and shot Reynolds
twice more to kill him. Frentz told Reynolds he’d then put
the .22 underneath Reynolds’s body and driven his truck up
and down the road in order to simulate the sound of several

Case: 15-3479

8

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

vehicles leaving his house. Turner said this story kept changing until it got Turner’s approval.
Frentz also offered to pay both Turner and Brackett to
drop .45 caliber shells outside his house and put pry-marks
on the windows. He told them that his brother had gone into
his house and removed $700 in cash from his jacket pocket
and an ounce of methamphetamine from his jeans pocket. At
one point, while in jail awaiting trial, Frentz received a letter
from Reynolds’s father sarcastically asking for help with the
funeral expenses. Both Turner and Brackett testified that
Frentz threw the included obituary on the floor and told
Brackett that “if he was going to pay for [Reynolds’s] funeral
he would have never killed him.”
On January 27, 2005, Frentz was charged with murder
and felony drug possession, later amended to include felony
charges for possessing anhydrous ammonia and receiving
stolen property. Through counsel, Frentz filed a notice on
February 22, 2005 that he sought to pursue an insanity defense. See Ind. Code § 35-36-2-1. Counsel consulted with Dr.
Philip Coons, and named him as an expert witness as to
Frentz’s physical and mental state at the time of the charged
offenses.3

3

Coons was deposed on December 29, 2005. Coons Dep., ECF No.
28. This deposition was not offered as evidence at Frentz’s state postconviction hearing, or indeed to any court before this one. However, Dr.
Masbaum, who offered testimony at Frentz’s Indiana postconviction
hearing, reviewed and relied on Coons’s deposition. As relevant here,
the deposition proceeded as follows.
Coons, who had reviewed documentation from Frentz’s visit to the
hospital the Saturday before the shooting, and from up to and after the
arrest, indicated that the medication Frentz had been prescribed to help

Case: 15-3479

No. 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

9

Shortly after Coon was deposed, the state sought leave to
have its expert examine Frentz. Before this could happen,
however, Frentz’s counsel withdrew Coons as a witness,
which effectively prevented him from pursuing the insanity
defense at trial. See Ind. Code § 35-36-2-2. At trial, Frentz’s
counsel did present some information that would have supported such a defense, including that doctors had advised
Frentz to stay in the hospital for at least five days when he
had gone there the Saturday before the shooting, and that he
had claimed to be hallucinating to Brock the night before the
shooting. However, neither Coons nor any other witness
submitted expert testimony about Frentz’s mental state to
the jury.
In his closing argument, counsel argued that Frentz
lacked the required mental state for murder, pointing to the
fact that Frentz had quit drinking after 30 years, had been on
medication, sweating, and had heard mysterious noises just
before the shooting. Counsel argued, appealing to the jurors’
“common sense and experience,” that Frentz had been suf-

with alcohol withdrawal was Ativan. Id. at 6–9. Coons described delirium tremens as “a syndrome … that some people get when they withdraw from alcohol … characterized by visual hallucinations … fever,
rapid heart rate … [it’s] basically a medical emergency and it requires
hospitalization when it occurs.” Id. at 10. Frentz also stated, however,
that Frentz had denied having these symptoms, despite his claim that he
had suffered from hallucinations, both before and after the time of the
shooting. Id. at 21. While Coons opined that these hallucinations were
brought on by alcohol withdrawal, id. at 23, Coons declared himself unable to opine as to whether Frentz had acted voluntarily at the time of
the shooting, id. at 40. This was because, Coons testified, Frentz had refused to discuss the actual moments of the shooting, while continuing to
state in a general way that he hadn’t shot Reynolds. Id.

Case: 15-3479

10

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

fering from delirium tremens and hallucinating. The jury
proceeded to find Frentz guilty on all counts on April 10,
2006. The Court of Appeals of Indiana affirmed, Frentz v.
State, 875 N.E.2d 453 (Ind. Ct. App. 2007), and the Supreme
Court of Indiana denied transfer, Frentz v. State, 891 N.E.2d
36 (Ind. 2008).
Frentz filed a petition for postconviction relief in Indiana
on December 11, 2008. An evidentiary hearing was held on
March 15, 2012, at which Frentz presented the testimony of
Dr. Ned Masbaum, and of his trial counsel, Bart Betteau.
Masbaum testified that he had recently interviewed Frentz,
but had not reviewed police reports, and that in his opinion,
Frentz was of “unsound mind” as a result of delirium tremens at the time the offense was committed. Postconviction
Order 15, Appellant’s Br. App. 38. Masbaum also stated that,
for the first time, Frentz had admitted that he shot Reynolds
by accident, thinking he was an intruder. Betteau testified
that he had experience mounting a defense relying on insanity, and that he had no reason to believe that the trial court
would have refused a request, had he made one, for funds
for a psychiatric report (presumably, this meant a report authored by Coons, or some other psychiatric professional, that
Betteau elected not to request). Id. at 17. The postconviction
court found that Masbaum’s conclusion was based on “selective and incomplete information,” id. at 18, and that in order
for the result of Frentz’s trial to have been different, had an
insanity defense been mounted, the jury would have had to
accept that Frentz had stopped using alcohol and that the
cessation and resulting delirium tremens had caused him to
be “unable to appreciate the wrongfulness of the conduct at
the time of the offense,” the legal standard for avoiding guilt
by reason of insanity in Indiana. Id. at 15; see Ind. Code § 35-

Case: 15-3479

No. 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

11

41-3-6. The postconviction court found that Frentz had not
shown his trial counsel’s allegedly deficient performance
prejudiced him, Postconviction Order 18, and denied
Frentz’s petition.
The state appellate court affirmed, deeming Frentz’s argument that his trial counsel was ineffective merely an attempt to relitigate the postconviction court’s determination
that Masbaum’s opinion was based on incomplete information, and noting that Frentz had presented no information
showing that his trial counsel had had reason to believe
Frentz met the legal standard for insanity in Indiana. Frentz
v. State, 989 N.E.2d 383, 2013 WL 2405197, at *8 (Ind. Ct. App.
May 31, 2013). The appellate court also characterized Betteau’s failure to raise the insanity defense as a strategic decision, based on Coons’s evaluation. Id.
Frentz then filed his § 2254 petition in federal district
court in the Southern District of Indiana, making several arguments, of which counsel’s failure to raise the insanity defense is the only survivor. Noting that the Court of Appeals
of Indiana had addressed the insanity argument on its merits, the district court rejected both Frentz’s argument that the
postconviction court’s unwillingness to credit Masbaum’s
opinion had been an unreasonable factual determination,
and his argument that Betteau’s failure to raise the insanity
defense was deficient performance that prejudiced him.
Frentz v. Brown, No. 1:13-CV-1311-TWP-DKL, 2015 WL
5825099, at *13 (S.D. Ind. Oct. 5, 2015). As to the latter, the
district court reasoned that Frentz had failed to provide evidence sufficient to overcome the strong presumption that
counsel’s behavior was an exercise of reasonable professional
judgment. Id. We certified for appeal only the question of

Case: 15-3479

Document: 43

12

Filed: 11/22/2017

Pages: 18

No. 15-3479

whether counsel was ineffective for not pursuing an insanity
defense.
II.

Discussion

The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254, permits us to grant habeas
relief when, as here, a state court reaches a decision on the
merits of a claim, but only if that decision was “contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
the United States,” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” § 2254(d)(2). The
state court whose decision we review is the last one that
ruled on the merits of the issue. Cossel v. Miller, 229 F.3d 649,
654 (7th Cir. 2000). Frentz’s sole claim before us, that his
counsel rendered ineffective assistance in not ultimately
electing to mount an insanity defense, is governed by the
two-part analysis the Supreme Court developed in Strickland
v. Washington, 466 U.S. 668 (1984). The test requires a petitioner to show “(1) that his counsel’s performance was so deficient as to fall below an objective standard of reasonableness under ‘prevailing professional norms’; and (2) that the
deficient performance so prejudiced the defense as to deny
the defendant a fair trial.” Lee v. Davis, 328 F.3d 896, 900 (7th
Cir. 2003) (quoting Strickland, 466 U.S. at 687–88).
We review the district court’s findings of fact for clear error, and review its conclusions of law de novo. In re Rovell,
194 F.3d 867, 870 (7th Cir. 1999). Whether a state court’s holding is an “unreasonable application of” clearly established
law under § 2254(d)(1) is a mixed question of fact and law
that we review de novo, but “with a grant of deference to

Case: 15-3479

No. 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

13

any reasonable state court decision.” Schaff v. Snyder, 190 F.3d
513, 522 (7th Cir. 1999). A state court’s decision is reasonable
when “at least minimally consistent with the facts and circumstances of the case.” Hennon v. Cooper, 109 F.3d 330, 335
(7th Cir. 1997).
In attacking his trial counsel’s performance, Frentz must
“overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quotation marks omitted).
Counsel’s ultimate decision at trial not to pursue an insanity
defense is not deficient performance if counsel “has made a
reasonable decision that makes particular investigations unnecessary.” Adams v. Bertrand, 453 F.3d 428, 436 (7th Cir.
2006) (quotation marks omitted).
Here, as the Court of Appeals of Indiana held, there is
abundant suggestion in the record that counsel’s decision not
to pursue an insanity defense further than he did was within
the wide spectrum of permissible strategic decision-making.
Frentz’s attorney initially notified the state that he would
pursue the defense, suggesting that he, like the courts that
have reviewed this case, thought that Frentz’s recent abstinence, after years of drinking, might at least potentially have
resulted in hallucinations or other mental incapacity on the
morning of the shooting. Frentz’s statements shortly after the
shooting suggest that, at least on some occasions on the day
before and the days following, he suffered from visual hallucinations. But Coons, the expert retained to evaluate Frentz,
could offer, at least at the time of his deposition, no further
opinion as to whether Frentz was suffering from such hallucinations at the time that, the jury determined, he shot Reynolds. Counsel’s decision to retain Coons, consult with him,

Case: 15-3479

14

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

and then not pursue the defense further, is consistent with
researching and deciding for strategic reasons not to pursue
the insanity defense.
Such potential reasons practically leap from the record.
Frentz changed his story several times, suggesting lucid recall of the events and careful attempts to fabricate a cover
story, rather than confusion or an inability to remember exactly what had happened. The testimony of the jailhouse informants, Turner and Brackett, if credited by the jury, was
particularly damaging, both in that it showed a callous disregard for Reynolds’s life inconsistent with having killed
him by accident while hallucinating, and in that it suggested
that Frentz had attempted to conceal his crime by creating
cover stories, beginning almost immediately after the commission of the crime itself when he reportedly drove his
truck up and down the road outside his house (a detail corroborated by other witnesses). A jury could easily have relied on this evidence in disbelieving any claim of mental incapacity Frentz might have sought to offer, particularly if
there was no evidence to be offered, either via Frentz’s own
potential testimony or the testimony of experts, that he was
actually or likely suffering from hallucinations at the time of
the shooting. Frentz’s attorney could have determined that
such an unsupported claim would be more likely to inflame
than to persuade the jury, and strategically not have brought
it.
Frentz argues that because Coons didn’t render an opinion as to his sanity at Coons’s deposition, or elsewhere on
the record, before counsel decided not to pursue the insanity
defense, counsel must have been deficient in failing to en-

Case: 15-3479

No. 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

15

gage another expert and to present the insanity defense.4
Appellant’s Br. 20–21. But this line of argument assumes,
without support beyond Masbaum’s testimony, that it was or
should have been evident to counsel that an insanity defense
would have been meritorious and should have been pursued. For all the evidence on the record, counsel may well
have consulted further with Coons, spoken with his client
more, or asked Coons to speak with Frentz again, and determined on the basis of that research that an insanity defense would be unavailing.5 Frentz offers no evidence to the
contrary.
Furthermore, we do not find that the postconviction
court’s unwillingness to credit Masbaum’s minimally supported opinion was an unreasonable determination of the
facts. Rather, it appears eminently reasonable for the postconviction court not to have accepted Masbaum’s determina4

Respondent argues that Frentz failed to make this failure to investigate claim as part of his ineffective assistance of counsel argument before the Indiana courts, and that he has therefore procedurally defaulted
it. Respondent’s Br. 14. However, as explained here, neither counsel’s
decision not to engage another expert, nor his eventual decision to withdraw the expert and not make an insanity argument before the jury,
were ineffective in any case.
5

One suspects, too, reading Coons’s deposition closely, that the doctor may have engaged in a certain amount of strategic hedging when
asked point-blank by counsel for the government whether Frentz had
been able to appreciate the wrongfulness of his actions on the morning of
January 24. Coons was unable to opine even tentatively that Frentz’s alcohol withdrawal had impaired his judgment. Instead he demurred, saying that Frentz’s condition “may have had,” Coons Dep. 40, some effect
on his ability to make decisions, and attributing his uncertainty to not
having been able to ask Frentz about the “point in time,” id., when the
shooting happened.

Case: 15-3479

16

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

tion that Frentz was legally insane at the time of the shooting, when that determination was rendered on partial consideration of the record evidence, which showed that Frentz
never admitted to having hallucinated at the time of the
shooting, and when Coons’s own evaluation, upon which
Masbaum claimed to rely, had been indeterminate. In addition, Masbaum’s opinion rested on Frentz’s own potentially
strategic alteration of his story. Frentz had told Masbaum a
different story than he had told Coons, admitting five years
after the fact to having shot Reynolds. This could easily be
construed by the Indiana postconviction court as a selfserving attempt to get a second bite at the apple. One of the
reasons Coons professed himself unable to say whether
Frentz had been insane at the time of the shooting is that
Frentz had not described the moment of the shooting to
Coons, and maintained that he had not shot Reynolds. A defense of insanity—having shot Reynolds but not being guilty
of it by reason of mental state—is, at least logically, incompatible with a defense of not having shot Reynolds at all. See
Wisehart v. State, 693 N.E.2d 23, 38–39 (Ind. 1998) (collecting
cases where courts have rejected claims of ineffective assistance of counsel for failing to raise a defense based on mental state because such defenses would have conflicted with
the trial defenses of actual innocence). Frentz’s apparent adamance at the time of trial that he did not shoot Reynolds
likely posed formidable obstacles to any argument counsel
might have wanted to make that Frentz did shoot Reynolds
but was not culpable of it because he was insane.
Certainly, none of the evidence Frentz has submitted is
sufficient to show the Court of Appeals of Indiana was unreasonable in finding Frentz’s trial counsel was not ineffective.

Case: 15-3479

No. 15-3479

Document: 43

Filed: 11/22/2017

Pages: 18

17

Turning to the prejudice portion of Strickland, it is also
easy to see that the appellate court was not unreasonable in
finding Frentz suffered no prejudice by his attorney’s decision not to bring the insanity defense. Frentz must demonstrate “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. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. And, in review of the state court’s
decision, we must allow “the state court’s conclusion to
stand if it is one of several equally plausible outcomes.” Hall
v. Washington, 106 F.3d 742, 749 (7th Cir. 1997).
As Frentz observes, while his trial counsel did not mount
an insanity defense, he attempted to use the evidence Frentz
thinks should have been put toward the insanity defense—
his possible delirium tremens and hallucinations, more or
less—to negate the intent element of Indiana murder. See
Ramsey v. State, 723 N.E.2d 869, 871 (Ind. 2000) (murder is the
knowing or intentional killing of another). Evidence about
Frentz’s drinking and abstinence was introduced, as was
Brock’s description of Frentz’s reported hallucinations. And
counsel argued in closing that Frentz had suffered from hallucinations, and might have suffered from them during the
crucial moments at which he shot Reynolds. Frentz
acknowledges all of this, but argues that without scientific
explanation, in the form of expert testimony, about what delirium tremens is and how it might have affected Frentz’s
judgment and consciousness, and without an insanitydefense instruction, the jury was unable to determine, as
they should have, that Frentz was unable to appreciate the
wrongfulness of his conduct at the time of the offense. See
Ind. Code § 35-41-3-6.

Case: 15-3479

18

Document: 43

Filed: 11/22/2017

Pages: 18

No. 15-3479

But Coons’s expert testimony, as conveyed in his deposition, would add little to the layperson’s sense, adequately
conveyed by the testimony at trial, that Frentz might have
suffered visual and auditory hallucinations, or been disoriented as to where he was and the identity of the people with
whom he was interacting. It is difficult to see how the addition of Coons’s (or another doctor’s) medical analysis of such
symptoms would have lent more weight to counsel’s argument, or how a jury, given the added option to find Frentz
not guilty by reason of insanity, would have done so on the
strength of just this evidence, when, in the event, that same
jury did find him guilty of a knowing or intentional killing.
In any case, the Court of Appeals of Indiana did not rule unreasonably when it determined that the outcome would have
been the same had Frentz’s attorney presented the insanity
defense. See Stevens v. McBride, 489 F.3d 883, 893 (7th Cir.
2007) (deferring to Indiana Supreme Court’s conclusion that
no jury could conclude defendant did not appreciate the
wrongfulness of his acts at the time of a killing).
For these reasons, we AFFIRM the district court’s denial
of a writ of habeas corpus.