                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1293
RONALD E. BURT,
                                             Petitioner-Appellant,
                                 v.

ALAN M. UCHTMAN,
                                            Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Western Division.
           No. 02 C 50351—Philip G. Reinhard, Judge.
                          ____________
   ARGUED JULY 6, 2005—DECIDED SEPTEMBER 6, 2005
                    ____________



  Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.
  COFFEY, Circuit Judge. Ronald Burt was sentenced to
death for the murders of H. Steven Roy and Kevin Muto.
His sentence was later commuted to life imprisonment
when the Governor of Illinois granted clemency to all death
row inmates. Burt was tried before a jury, but near the end
of the state’s case-in-chief he abruptly changed his plea to
guilty without any concessions from the government and
against the strenuous advice of his attorneys. During the
more than 14 months between his arrest and guilty plea,
Burt was taking a number of powerful psychotropic medica-
tions prescribed for him by prison doctors. Burt was
examined by a psychologist eight months before his trial
2                                              No. 04-1293

began, and the doctor, while noting several psychological
impairments, deemed him fit to stand trial. The psycholo-
gist, however, did not consult Burt’s medication records and
his report mentions only in passing that Burt was even on
medication. Neither defense counsel nor the trial court ever
requested a further evaluation to determine if Burt was
competent at the time he pleaded guilty. Burt’s direct
appeal, state post-conviction petition, and petition for
habeas corpus in the district court, 28 U.S.C. § 2254, were
all unsuccessful. We granted Burt a certificate of
appealability on two issues: (1) whether he was denied due
process when the trial court failed to order a hearing into
his fitness to plead guilty, and (2) whether he was denied
effective assistance of counsel when his attorneys failed to
request a renewed examination of his fitness. For the
reasons set forth below, we conclude that the Illinois
Supreme Court unreasonably applied clearly established
federal law on both issues. Accordingly, we reverse the
district court’s denial of Burt’s petition and remand with
instructions to grant the writ of habeas corpus unless
Illinois informs the district court within a reasonable time
to be determined by the district court that it intends to
retry Burt.


                   I. BACKGROUND
    A. Facts of the offenses
  These facts are taken from the Illinois Supreme Court’s
opinion resolving Burt’s direct appeal. See People v. Burt,
658 N.E.2d 375 (Ill. 1995) (Burt I). On January 16, 1992
police in Stephenson County were summoned to Roy’s farm
after a neighbor discovered that Roy and a farmhand, Muto,
had been fatally shot. The following day officers arrested
Burt, Dannie Booth, and David Craig for the murders of the
two men. Burt initially claimed to know nothing about the
murders, but he later offered to give a statement after the
detectives investigating the case told him that Booth and
No. 04-1293                                                3

Craig had both identified him as one of the assailants.
  Burt eventually gave three statements to the police. In
his first statement, he said that Booth, who was 14 years
old at the time, had asked him and Craig to help collect
$500 Roy owed him. Upon arriving at the farm, Booth went
to argue with Roy while Burt and Craig waited in another
room. While waiting, they searched the room and Burt
found Roy’s rifle in a closet. He was holding the rifle when
Roy and Booth, still arguing, entered the room. Burt
pointed the gun at Roy, demanded his wallet, and then
ordered him to walk to a back room. Once in the back room,
Burt said that Roy made a sudden movement. Burt claimed
this movement made him fear that Roy might be trying to
“pull something,” and he shot Roy in the back of the head.
Booth then grabbed the rifle and shot Roy several more
times.
  Burt, Craig, and Booth remained in the house and took
some of Roy’s belongings, at which point Muto knocked on
the back door. Burt answered the door and told him to
leave; when Muto refused to leave, Booth forced him at
gunpoint into a different back room and, after taking his
wallet, shot Muto in the back of the head and in the back.
Burt grabbed the gun and again shot Muto in the back. The
three men then fled the farm with Roy’s VCR, some meat
from his refrigerator, and some of his personal checks.
  The next day, Burt gave a second statement to the police.
His second statement was very similar to the first except he
added that, after shooting Roy, he and Craig discussed
killing Booth because they feared he would report them to
the police. A few days later, Burt gave a third statement. In
this statement he denied shooting Muto and claimed that
Booth was wholly responsible for that murder. Burt said
that he had previously wanted to protect Booth because
Booth was so young but that he changed his mind after
learning that Booth was blaming him for the murders. The
4                                                   No. 04-1293

trial court suppressed the third statement as hearsay.
Later, Booth and Craig each pleaded guilty to one count of
murder and were sentenced, respectively, to 40 years’ and
28 years’ imprisonment.


    B. Procedural history and psychological treatment
   On January 31, 1992, two weeks after his admission to
the Stephenson County Jail, Burt was seen by a Dr. Modir,
who prescribed the antidepressant doxepin1 (brand name
Sinequan). Shortly thereafter Burt, Booth, and Craig were
all indicted for two counts of first-degree murder, armed
robbery, home invasion, armed violence, and theft. After his
indictment Burt was transferred to Stateville Penitentiary
and continued to take Sinequan. In April 1992 Burt had his
first of many appointments with Dr. Edward Navakas, a
psychiatrist at Stateville. Dr. Navakas continued Burt’s
prescription for Sinequan and also added a new prescription
for an anti-anxiety medication, diazepam2 (brand name
Valium). In May 1992 Dr. Navakas prescribed another
antidepressant, imipramine3 (brand name Tofranil), and



1
  “Doxepin is in a class of drugs called tricyclic antidepres-
sants. Doxepin affects chemicals in the brain that
may become unbalanced and cause depression.” http://
www.drugs.com/xq/cfm/pageid_0/htm_D00217A1.htm/type_
mtm/tgid_28/bn_Sinequan/qx/index.htm.
2
  “Diazepam is in a class of drugs called benzodiazepines.
Diazepam affects chemicals in the brain that may become
unbalanced and cause anxiety, seizures, and muscle spasms.”
http://www.drugs.com/xq/cfm/pageid_0/htm_D00148A1.htm/
type_mtm/tgid_28/bn_diazepam/qx/index.htm.
3
  “Imipramine is in a class of drugs called tricyclic antidepres-
sants. Imipramine affects chemicals in the brain that may become
                                                    (continued...)
No. 04-1293                                                      5

doubled Burt’s dosage of Valium.
  The Circuit Court for the Fifteenth Judicial Circuit
appointed two attorneys, Thomas Nettles and John Vogt, to
represent Burt. Neither Nettles nor Vogt had any experi-
ence defending a capital case and each moved to withdraw.
The court denied their motions. Nettles and Vogt then
requested an examination to determine if Burt was compe-
tent to stand trial. In July 1992, approximately eight
months before trial, Burt was examined by Dr. Donald
Pearson, a psychologist. On the day of the evaluation prison
officials refused to dispense his medications because, in
Burt’s words, they did not want him “doped up” for the
examination. Dr. Pearson opined that Burt was competent
to stand trial despite suffering from antisocial personality
disorder, substance abuse disorder, attention deficit
hyperactive disorder, and “borderline” intelligence reflecting
minor mental retardation. Dr. Pearson’s report also noted
that Burt was scared of imaginary snakes in his cell. Dr.
Pearson mentioned that Burt reported taking Sinequan and
Valium, but he made no further mention of Burt’s medica-
tions and did not review Dr. Navakas’s records.
  Approximately two weeks after Burt was examined by Dr.
Pearson, Dr. Navakas again changed Burt’s medications
when he discontinued Sinequan and increased the dosage
of Tofranil. Three weeks later on August 18 Dr. Navakas
prescribed a new anti-psychotic drug, thioridazine4 (brand


3
 (...continued)
unbalanced and cause depression.” http://
www.drugs.com/xq/cfm/pageid_0/htm_D00259A1.htm/type_
mtm/tgid_28/bn_Tofranil/qx/index.htm.
4
     “Thioridazine is in a class of drugs called
phenothiazines. It works by changing the actions of chemicals in
the brain. . . . Thioridazine is used to treat psychotic disorders,
                                                     (continued...)
6                                                No. 04-1293

name Mellaril), and maintained Tofranil and Valium. On
August 28 Dr. Navakas increased the dosages of both
Mellaril and Tofranil, while continuing Valium at its
previous level. Dr. Navakas also made a notation that he
was discontinuing Sinequan, even though Burt was not
then taking that drug. From August 1992 until February
1993 Burt continued to see Dr. Navakas, who continued to
prescribe Mellaril, Tofranil, and Valium. Dr. Navakas’s
notes for September 16, 1992 show a new prescription for
Sinequan, but his notes for Burt’s next appointment on
December 11, 1992 make no mention of that drug.
  In November 1992 Burt was examined by another
psychologist, Dr. Linda Wetzel, in connection with a defense
motion to suppress his confessions. Dr. Wetzel calculated
Burt’s IQ as 79, placing him in the 9th percentile for his age
group, and she diagnosed him as having a brain impair-
ment of the frontal cerebral lobe that had been exacerbated
by numerous childhood head injuries. She wrote:
    His memory deteriorates to a retarded level after a
    delay of only 30 minutes. His mental flexibility is
    severely impaired and motor speed is moderately to
    severely impaired. Language abilities are spared which
    allows him to appear brighter than his actual border-
    line intelligence level. He is further handicapped by his
    severe depression which interferes with his ability to
    concentrate.
Dr. Wetzel concluded that Burt’s condition resulted in “poor
impulse control, poor judgment, and inability to monitor


4
  (...continued)
such as schizophrenia. Thioridazine is generally reserved for
people who do not respond to other drugs or who
cannot take other drugs due to side effects.”
http://www.drugs.com/xq/cfm/pageid_0/htm_D00389A1.htm/
type_mtm/tgid_28/bn_Mellaril/qx/index.htm.
No. 04-1293                                                 7

and self-correct behavior.”
  Six weeks before trial on February 2, 1993 Burt told Dr.
Navakas about a painful growth on the left side of his chest.
Dr. Navakas determined that the growth was caused by the
Mellaril, so he cut Burt’s dosage in half, while maintaining
him on the same doses of Tofranil and Valium.
  Burt’s trial began in mid-March 1993. During jury
selection on March 19 Burt’s attorneys requested a continu-
ance. Nettles explained that Burt “does not feel he is able
to continue to assist us in the selection of jurors today.” He
added that Burt was having difficulty sleeping and “feels
that because of his inability to sleep and because of the
medication that he would not be able to assist on today’s
date in selecting these jurors.” The court denied a continu-
ance but told Burt it would reconsider “if I detect you’re
having trouble staying awake.”
  On March 26, the fourth day of trial during the state’s
case-in-chief, Attorney Vogt announced that Burt wished to
plead guilty. Vogt added that “we’ve spoken . . . with our
client last night and I also spoke with him this morning for
some time . . . and we told him that we didn’t think it was
appropriate and would be against our advise [sic] to do that,
but he insists on it with us and wants to do it.”
  The court admonished Burt of the consequences of
pleading guilty, including that he would be eligible for the
death penalty. The court also briefly inquired about Burt’s
mental condition:


  THE COURT:        Are you getting all the medication
                    you’re prescribed at this time? Are you
                    getting it over at the jail?
  DEFENDANT: Yes, I am.
  THE COURT:        You feel rested this morning?
8                                                No. 04-1293

    DEFENDANT: I feel about the same.
    THE COURT:      About the same, but that was a prob-
                    lem the other morning, but I’ve
                    watched. You’ve been alert, I think,
                    through the trial. And you’ve dis-
                    cussed this with your attorneys have
                    you not?
    DEFENDANT: Yes.
    THE COURT:      Okay. Are you following their advice
                    or do they disagree with you on that?
    DEFENDANT: They disagree.
The court then cautioned Burt to consider his attorneys’
advice. After Burt said he still wished to plead guilty, the
court finished admonishing him of the consequences of his
decision and then accepted the guilty plea. At a sentencing
hearing begun later that day, the parties presented evi-
dence of aggravating and mitigating circumstances. The
jury on April 1 sentenced Burt to death.
   Burt filed a timely motion to withdraw his plea in which
he argued, among other things, that his guilty plea was not
voluntarily and intelligently made because his mental
deficiencies and heavy medications rendered him incompe-
tent at the time he changed his plea. The court denied that
motion. Burt continued to take a variety of psychotropic
medications throughout his post-trial proceedings. The
Illinois Supreme Court affirmed Burt’s convictions on direct
appeal, Burt I, 658 N.E.2d 375, and the United States
Supreme Court denied certiorari, Burt v. Illinois, 517 U.S.
1211 (1996).
  Burt then filed a petition for state post-conviction relief,
asserting in part that he was denied due process when the
trial court failed to order a new competency hearing and
that he was denied effective assistance of counsel when his
attorneys failed to request one. Burt’s petition was sup-
No. 04-1293                                                9

ported by, among other things, an affidavit from one of his
trial attorneys and a report by Dr. Lyle Rossiter, a Board
certified forensic psychiatrist who reviewed Burt’s medical
history. Attorney Nettles’s affidavit stated he was aware
that Burt was taking psychotropic medication throughout
Burt’s pre-trial incarceration. It also stated that Burt
exhibited “frequent swings of mood” and often “demon-
strated belligerent or explosive behavior” in his presence.
Nettles further stated that Burt threatened to become
violent in the courtroom on multiple occasions and once
threatened to attack him. Nettles believed, “Burt did not
fully comprehend legal advice and that his behavior
throughout the trial, particularly his decision to change his
plea to guilty, was not rational.” Finally, “Burt insisted on
changing his plea to guilty largely because he was not
permitted to smoke in the Stephenson County Jail, and was
anxious to return to prison where smoking was permitted.”
  Dr. Rossiter’s report stated that “this defendant’s history
of head injury with probable brain damage renders him
more susceptible to the adverse effects of psychotropic
medication.” Dr. Rossiter opined that Burt should have had
a fitness hearing because he “was taking powerful
psychotropic medications at the time of his March 1993
trial, and he had a long history of psychiatric disorders and
evidence of brain damage.”
  The circuit court dismissed Burt’s post-conviction petition
in December 1998. The Illinois Supreme Court, with two
dissenting justices, affirmed. People v. Burt, 792 N.E.2d
1250 (Ill. 2001) (Burt II). As relevant here, the majority
held that Burt was not denied effective assistance of
counsel when his attorneys failed to request a fitness
hearing before the court accepted his guilty plea because he
did not show a bona fide doubt as to his competency to
plead guilty and thus could not establish that he was
prejudiced by his attorneys’ failure to request a new
competency hearing. Id. at 1261. The court held that Burt’s
10                                                No. 04-1293

failure to establish a bona fide doubt as to his competency
was likewise fatal to his due process claim. Id. at 1261-62.
Chief Justice Harrison dissented, arguing that Burt’s
abrupt decision to plead guilty without seeking any conces-
sions from the prosecution was “an inherently irrational
act” because of his “certain” eligibility for the death penalty.
Id. at 1264. The Chief Justice added that Burt’s psychiatric
history showed that “[t]here can be no real doubt, however,
that whatever decisionmaking sense [Burt] possessed
abandoned him during the trial.” Id. Justice Kilbride also
dissented, noting that “there is no explanation of why
counsel could not or did not procure any concessions from
the State in return for defendant’s guilty plea, such as an
agreement not to seek the death penalty.” Id. at 1265. The
United States Supreme Court again denied certiorari. Burt
v. Illinois, 536 U.S. 925 (2002). The Governor of Illinois
eventually commuted Burt’s sentence to life imprisonment
as part of a blanket commutation of all Illinois death
sentences.
  Burt then petitioned the district court for a writ of habeas
corpus, 28 U.S.C. § 2254, again asserting that he was
denied due process and effective assistance of counsel. As
relevant here, the district court found that the Illinois
Supreme Court reasonably concluded that Burt’s due
process claim failed because he could not establish a bona
fide doubt about his competency. The district court also
found that the Illinois Supreme Court reasonably concluded
that Burt could not establish that he was prejudiced by his
counsel’s failure to request a fitness hearing because he had
not established a bona fide doubt about his competency to
stand trial. We granted Burt a certificate of appealability on
two issues: (1) whether Burt was denied due process when
the trial court failed to conduct a fitness hearing prior to
accepting his guilty plea, and (2) whether his attorneys
rendered ineffective assistance by failing to request a
competency hearing either immediately before trial or
No. 04-1293                                              11

before the court accepted Burt’s change of plea.


                    II. DISCUSSION
  The Antiterrorism and Effective Death Penalty Act
(AEDPA) provides that a defendant cannot prevail on a
petition for habeas corpus unless he shows that a state
court rendered a decision that was “contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States” or was based on an unreasonable determination of
the facts in light of the evidence presented. 28 U.S.C.
§ 2254(d); see also Matheney v. Anderson, 377 F.3d 740, 747
(7th Cir. 2004). Burt argues that the Illinois Supreme Court
unreasonably applied the federal law relevant to each of his
claims. We recognize that we may not grant relief under the
“unreasonable application” prong unless the state court’s
application of Supreme Court precedent “l[ies] well outside
the boundaries of permissible differences of opinion.”
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002).


  A. Due process claim
  Burt first argues that he was denied due process when
the trial court failed sua sponte to order a fitness hearing
before accepting his guilty plea despite knowing about his
history of psychological problems and his heavy use of
psychotropic medication. A criminal defendant must be
mentally competent to stand trial. Drope v. Missouri, 420
U.S. 162, 171 (1975). The question of whether a defendant
is competent focuses on “whether he has sufficient present
ability to consult with his lawyer with a reasonable degree
of rational understanding—and whether he has a rational
as well as factual understanding of the proceedings against
him.” Dusky v. United States, 362 U.S. 402, 402 (1960). A
defendant must also be competent at the time he pleads
12                                                No. 04-1293

guilty, and the standard governing competency to plead
guilty is the same as that used to evaluate competency to
stand trial. Godinez v. Moran, 509 U.S. 389, 398-99 (1993).
Where the evidence before a trial court raises a bona fide
doubt as to the defendant’s competency, due process
requires the court sua sponte to order a competency hear-
ing. Pate v. Robinson, 383 U.S. 375, 385 (1966).
   The Illinois Supreme Court found that Burt failed to
establish a bona fide doubt as to his competency to plead
guilty for several reasons. First, Burt’s decision to disregard
his attorneys’ advice when pleading guilty demonstrated
independent thought and “shows that his will was not
‘flattened.’ ” Burt II, 792 N.E.2d at 1259. Second, Dr.
Navakas at one point wrote that Burt seemed motivated to
continue his legal defense. Id. Third, Burt clearly under-
stood the consequences of pleading guilty because the trial
court admonished him before accepting the plea. Id. at
1259-60. Fourth, the court noted a remark made by the trial
court at sentencing that, despite one outburst and the
incident when he claimed to be too tired to participate in
jury selection, Burt “conducted himself very well and very
normally throughout the proceedings.” Id. at 1260. Fifth,
although Attorney Nettles’s affidavit showed that Burt was
belligerent and explosive, it did not address whether he
could understand the proceedings and participate in his
defense. Id. at 1260-61. Finally, the court disregarded Dr.
Rossiter’s report, stating that “[i]t is for this court, and not
Dr. Rossiter, to determine whether there existed a bona fide
doubt of defendant’s fitness.” Id. at 1261.
  The Illinois Supreme Court’s logic is troubling in many
respects. First, it is odd to think that a defendant with
severe psychological problems is showing strong independ-
ent thought when he suddenly makes a highly questionable
strategic decision to plead guilty against the strenuous
advice of his counsel. Nothing prevents a defendant from
making poor tactical choices, including abruptly pleading
No. 04-1293                                               13

guilty in the midst of trial. See Gosier v. Welborn, 175 F.3d
504, 508-09 (7th Cir. 1999). And a desire to plead guilty
motivated by something like a belated sense of compassion
for the victim or a religious conversion may well be fully
rational. See id. But we have also recognized that a sudden
guilty plea with no attempt to seek concessions from the
prosecution may, when coupled with other evidence of
mental problems, raise doubts as to the defendant’s compe-
tency. See United States v. Johns, 728 F.2d 953, 956 (7th
Cir. 1984). The court’s conclusion that Burt’s plea demon-
strated a strong will ignores the context in which he
pleaded guilty: Burt has significantly below average
intelligence and had been diagnosed with attention deficit
hyperactive disorder and a brain impairment that made
him prone to poor impulse control. A sudden and highly
questionable tactical decision seems more likely a product
of his mental deficiencies than strong will and reasoned
thought.
  Other portions of the court’s reasoning are also suspect.
The observation that the court admonished Burt of the
consequences of pleading guilty is irrelevant to his claim of
incompetency. If Burt was in fact unable to understand the
proceedings, that the court informed him of the conse-
quences of a guilty plea would make no difference. The trial
court’s observation that Burt was well-behaved in court also
gives us pause because it is so at odds with Nettles’s
affidavit, which states that Burt exhibited violent behavior
in court and that his frequent mood swings caused several
delays in the proceedings. We hasten to add, however, that
Burt does not attempt to rebut the presumption that this
factual finding of the Illinois Supreme Court is correct. See
Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2002).
Finally, the court’s decision to disregard Dr. Rossiter’s
report without explanation is troubling. Dr. Rossiter
reviewed Burt’s medical history as a medical expert and,
while an expert’s report need not be considered conclusive,
14                                               No. 04-1293

the court should have at least considered Dr. Rossiter’s
findings. See Matheney, 377 F.3d at 748.
  Our disagreements with the Illinois Supreme Court’s
reasoning do not, by themselves, justify granting Burt’s
petition for habeas corpus because AEDPA requires that we
show great deference to the state court. See id. at 747. But
no level of deference permits us to overlook the most critical
shortcoming of the Illinois Supreme Court’s opinion—its
total failure to address whether Burt was entitled to a
competency hearing before pleading guilty given the heavy
and ever-changing doses of psychotropic medication he was
taking.
  Burt correctly observes both that no medical expert ever
opined on his fitness to stand trial while he was heavily
medicated and that the Illinois Supreme Court never
addressed this crucial fact or the wealth of other informa-
tion that should have alerted the trial court to the need for
a new competency hearing before accepting his guilty plea.
Burt was examined by Dr. Pearson eight months before
trial on a day when prison officials refused to dispense his
prescribed medications. Dr. Pearson made no effort to
review Burt’s psychiatric history and did not even review
Dr. Navakas’s records when finding Burt fit to stand trial.
See Brown v. Sternes, 304 F.3d 677, 697 (7th Cir. 2002)
(psychiatrist’s opinion as to defendant’s competency under-
mined by his failure to review medical history). Further-
more, Burt’s medications changed significantly between the
time Dr. Pearson examined him and the time he pleaded
guilty. Immediately before seeing Dr. Pearson, Burt’s daily
medication regimen was 150 mg of Sinequan, 20 mg of
Valium, and 50 mg of Tofranil. During trial, he was taking
100 mg of Mellaril (down from a high dosage of 200 mg six
weeks before trial), 20 mg of Valium, and 150 mg of
Tofranil. Thus, Burt’s dosage of Tofranil tripled and he
switched from Sinequan to Mellaril between his fitness
examination and his trial. Moreover, Dr. Rossiter later
No. 04-1293                                               15

opined that Burt was particularly susceptible to the effects
of these powerful drugs because of his brain damage.
  The trial court was well aware that Burt was taking an
array of powerful psychotropic medications both before and
during trial. See Pitsonbarger v. Gramley, 141 F.3d 728,
736 (7th Cir. 1998) (“the charge that a defendant was under
the influence of psychotropic drugs at or near the time of
trial is a serious one”). It was also aware that Burt had
experienced difficulty staying awake during jury selection.
Yet when the court learned that Burt suddenly wished to
plead guilty against his attorneys’ advice, the court asked
only two questions about his mental condition. First, the
court asked if he had taken his medication, making no
further inquiry into what effect the drugs were then having
on him. Second, the court asked how Burt was feeling. But
when Burt replied that he felt “about the same,” the court
responded: “About the same, but that was a problem the
other morning, but I’ve watched. You’ve been alert, I think,
through the trial.” Rather than following up with another
question, the court instead concluded on its own that Burt
was alert and gave him no further chance to elaborate.
  If ever there was a case in which a trial court should have
sua sponte ordered a renewed competency hearing, this is
that case. Dr. Pearson’s report made the trial court fully
aware that Burt was a man of significantly below average
intelligence with a history of psychological problems. The
court knew that Burt was taking large doses of powerful
psychotropic medications and that Dr. Pearson’s report
barely mentioned those drugs. The court also knew that at
one point during the trial Burt was having such difficulty
remaining alert that his attorneys felt compelled to request
a continuance. Lastly, Burt’s sudden unexplained decision
to plead guilty against the advice of counsel when he faced
certain eligibility for the death penalty should have caused
the court to consider whether he was competent to make
that decision. The trial court never should have accepted
16                                              No. 04-1293

Burt’s guilty plea without first ordering a renewed compe-
tency hearing, and the Illinois Supreme Court unreasonably
applied clearly established federal law when it found that
Burt was not denied due process. See Pate, 383 U.S. at 385.


  B. Ineffective assistance of counsel
  Although we conclude that Burt must prevail on his due
process claim, we will also address his second argu-
ment—that his attorneys provided ineffective assistance
when they failed to request a renewed fitness examination
either shortly before trial or, at a minimum, before the
court accepted the guilty plea. A criminal defendant has a
Sixth Amendment right to be represented by effective
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).
In order to establish that he was denied the effective
assistance of counsel, a defendant must show both that
counsel’s performance was deficient and that he was
prejudiced by his attorneys’ errors. Id. at 687. Counsel has
an obligation either to investigate possible defenses or make
reasonable decisions that particular investigations are
unnecessary. Kimmelman v. Morrison, 477 U.S. 365, 385
(1986). The relevant inquiry on the prejudice prong focuses
on whether counsel’s deficient performance renders the
result of the trial unreliable or fundamentally unfair.
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Where a
defendant argues that he should have received a fitness
hearing, we have interpreted the prejudice inquiry as
asking whether there is a reasonable probability the
defendant would have been found unfit had a hearing been
held. Eddmonds v. Peters, 93 F.3d 1307, 1317 (7th Cir.
1996).
  The Illinois Supreme Court held that Burt was not denied
effective assistance of counsel. Burt II, 792 N.E.2d at 1261.
The court did not address the first prong of the Strickland
analysis and instead concluded that Burt could not estab-
No. 04-1293                                                17

lish prejudice because he could not show a bona fide doubt
that he was competent at the time of trial. Id. The court’s
analysis of the prejudice prong of Strickland is identical to
that used for his due process claim and we need not reiter-
ate our concerns with that reasoning.
   But Burt’s ineffectiveness claim presents even more
compelling reasons for granting his petition than does his
due process claim because Burt’s attorneys had access to
additional information suggesting he was incompetent than
did the trial court. Burt’s attorneys both admitted they were
unaware of a then-existing Illinois statute that provided a
mandatory fitness hearing for any defendant taking
psychotropic medication at the time of trial. See 725 ILCS
5/104-21(a) (1993) (“A defendant who is receiving
psychotropic drugs or other medications under medical
direction is entitled to a hearing on the issue of his fitness
while under medication.”). As the Illinois Supreme Court
observed, Burt’s right to receive the particular hearing
described in 725 ILCS 5/104-21(a) arose from a state statute
and is thus not independently cognizable in a petition for
habeas corpus. Burt II, 792 N.E.2d at 1257; see also Estelle
v. McGuire, 502 U.S. 62, 67, 68 (1991) (errors of state law
are not cognizable in a petition for habeas corpus unless
they result in the violation of a constitutional or federal
right). The question before us, however, is not whether
Illinois courts followed proper procedures under state law
but, rather, whether Burt’s attorneys provided constitution-
ally ineffective assistance by failing to seek any type of
competency hearing. See Pitsonbarger, 141 F.3d at 736.
  Burt’s attorneys were aware of several pieces of informa-
tion beyond what was available to the trial court that
should have alerted them to the need for a new competency
hearing. First, counsel learned that Burt desperately
wanted to smoke and that smoking was prohibited at the
county jail where he was being held during trial. Nettles’s
affidavit states: “Burt insisted on changing his plea to
18                                               No. 04-1293

guilty largely because he was not permitted to smoke in the
Stephenson County Jail, and was anxious to return to
prison where smoking was permitted.” That Burt’s desire to
have a cigarette, in counsel’s mind, trumped his desire to
defend himself against capital murder charges should have
suggested to counsel that Burt was not thinking clearly and
not making rational decisions to assist in his defense. See
Burt II, 792 N.E.2d at 1264 (Harrison, C.J., dissenting).
  Indeed, Burt never explained why he decided to plead
guilty and the state has never even suggested a possible
rational explanation for his decision. Cf. Gosier, 175 F.3d at
508-09 (defendant’s sudden guilty plea motivated by
religious conversion and newfound sense of remorse). Burt
later explained in an affidavit: “I pled guilty because of my
extreme frustration over my inability to focus on or under-
stand what was going on in court.” Burt also stated that at
the time of trial he was “even more drowsy and unable to
focus than I was previously, including around the time I
was examined by Dr. Pearson.”
  Counsel had ample opportunity to observe Burt’s behavior
both in and out of the courtroom. Nettles’s affidavit men-
tioned Burt’s “frequent swings of mood,” which he attrib-
uted in part to a belief that the county jail was administer-
ing Burt’s medication on an irregular schedule. Burt’s mood
swings were so pronounced that Nettles and Vogt “would
meet with Burt every morning before court to evaluate his
mental state.” It “often happened” that Burt “demonstrated
belligerent or explosive behavior,” such as threatening
others in the courtroom. Nettles “was continually afraid
that Burt would commit violent acts in court, and made
constant efforts to appease him.” Finally, Nettles believed
that “Burt did not fully comprehend legal advice and that
his behavior throughout the trial, particularly his decision
to change his plea to guilty, was not rational.”
  Nettles’s fears that Burt would become violent were
No. 04-1293                                                19

supported by Dr. Navakas’s records, which were provided to
defense counsel at their request. In December 1992 Burt
reported to Dr. Navakas that he wanted to die and threat-
ened to “kill someone in the court room” if he was given a
life sentence as opposed to a death sentence. The respon-
dent interprets this report to mean that Burt had carefully
considered his potential sentences and preferred execution
to life imprisonment: “Thus, rather than demonstrating a
bona fide doubt as to his fitness, in context, his decision to
change his plea reflects a reasoned choice.” But when
combined with the other evidence discussed above, Dr.
Navakas’s report of Burt’s mental condition and hope for his
own execution should have raised alarms for counsel.
  We conclude, as the Illinois Supreme Court apparently
assumed, that counsel provided deficient performance by
not requesting a renewed fitness hearing for Burt. The only
time Burt was examined by an expert to evaluate his
competency was eight months before trial. The Supreme
Court, however, has emphasized that a defendant’s compe-
tency must be evaluated at the time of trial and that his
condition can change as proceedings unfold. Drope, 420 U.S.
at 181 (“Even when a defendant is competent at the
commencement of his trial, a trial court must always be
alert to circumstances suggesting a change that would
render the accused unable to meet the standards of compe-
tence to stand trial.”); see also Pate, 383 U.S. at 387 (dis-
cussing importance of a contemporaneous competency
hearing). Counsel should have realized that Dr. Pearson’s
report left critical questions unanswered because Dr.
Pearson failed to consider that Burt was taking multiple
psychotropic medications. Furthermore, the report could not
have addressed Burt’s current psychological condition
because of the numerous changes made to his prescriptions
in the eight months between the examination and the start
of trial.
  Neither the respondent nor Burt’s former attorneys
20                                               No. 04-1293

provided any conceivable tactical reason for counsel’s
decision not to request a new competency hearing. The only
reason Nettles gave in his affidavit was that neither he nor
Vogt was aware that Burt was entitled to a mandatory
hearing under the then-existing version of 725 ILCS 5/104-
21(a). But counsel should have been aware that Burt had a
federal right not to stand trial unless he was competent,
and the record raises significant questions as to Burt’s
competency at the time he pleaded guilty. The failure by
defense counsel to investigate apparent problems with a
defendant’s mental health may be deficient performance as
defined by the first prong of Strickland. See Williams v.
Taylor, 529 U.S. 362, 395 (2000) (“[Counsel] failed to
conduct an investigation that would have uncovered
extensive records graphically describing Williams’ night-
marish childhood, not because of any strategic calculation
but because they incorrectly thought that state law barred
access to such records.”); Brown, 304 F.3d at 692 (counsel
failed to investigate defendant’s mental health even though
defendant was under psychiatric treatment, made irrational
and uncontrolled outbursts at trial, and yelled at counsel’s
law clerk); Brewer v. Aiken, 935 F.2d 850, 858 (7th Cir.
1991) (counsel failed to investigate mental health when
defendant had an IQ of 76 and a psychologist testified that
defendant’s condition made him particularly susceptible to
the influences of other people). We conclude here that in
light of the overwhelming evidence of Burt’s psychological
problems and heavy medication, counsel’s failure to request
a new competency hearing was deficient performance.
  Burt must also establish that he was prejudiced by
counsel’s failure to request a hearing. “The defendant must
show that there is 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.
Burt was heavily medicated, reported fearing imaginary
snakes in his cell, had difficulty staying awake during trial,
No. 04-1293                                                21

and told his attorneys that he wanted to plead guilty so he
could return to state prison to smoke. His attorneys also
observed that he was frequently violent and threatened to
hurt others in the courtroom. These facts establish a
reasonable probability that Burt would have been found
incompetent at the time he pleaded guilty if his attorneys
had requested a competency hearing. The Illinois Supreme
Court’s decision to the contrary was unreasonable.
  We found prejudice in a similar appeal from the denial of
a petition for habeas corpus in which a psychiatrist exam-
ined a defendant before trial but failed to review any
records of his extensive history of psychiatric treatment. See
Brown, 304 F.3d at 697-98. Those records showed that the
defendant had long suffered from chronic schizophrenia and
that an expert had opined that the defendant lacked powers
of “logical, cohesive thinking.” Id. at 698. The defendant
was also taking “ ‘large doses’ of anti-psychotic medication.”
Id. at 693. Similarly, Burt was heavily medicated and three
experts had diagnosed him as suffering from psychiatric
disorders that lowered his intelligence and made him prone
to impulsive behavior. Dr. Pearson did not consider the
possible effects of Burt’s medications and neither defense
counsel nor the trial court requested an examination to
address that issue.
  Moreover, unlike other cases in which we have held that
defendants were not prejudiced by their attorneys’ decisions
not to request competency hearings, the conclusion that
Burt was competent to stand trial rested solely on a single
competency examination conducted months before trial. Cf.
Timberlake v. Davis, 409 F.3d 819, 823 (7th Cir. 2005)
(defendant examined twice before trial and once during
post-conviction proceedings and found competent all three
times); Young v. Walls, 311 F.3d 846, 848 (7th Cir. 2002)
(defendant found competent three times before trial, and
post-conviction court held separate competency hearing to
evaluate his competency while on psychotropic medication);
22                                              No. 04-1293

Eddmonds, 93 F.3d at 1317 (defendant found competent
five times in the two-and-a-half years before trial). We do
not mean to suggest that a single competency hearing is
necessarily insufficient. But Dr. Pearson’s evaluation
suffered from a number of faults, including that it was
conducted months before trial, failed to consider any
potential effects of Burt’s heavy medication, and could not
have taken into account the repeated changes in Burt’s
prescriptions between the date of the examination and the
start of his trial.
   Burt’s ineffective assistance claim differs from his due
process claim because the analysis for the due process claim
focuses only on events that happened in court that should
have alerted the trial judge to the need for a competency
hearing. Although those events alone should have alerted
both defense counsel and the trial court to the need for a
new competency hearing, Burt’s ineffective assistance claim
is bolstered by a wealth of other evidence suggesting he was
incompetent. The Illinois Supreme Court failed to acknowl-
edge much of this evidence. Specifically, the court did not
mention Nettles’s statement in his affidavit that “Burt did
not fully comprehend legal advice and that his behavior
throughout the trial, particularly his decision to change his
plea to guilty, was not rational.” Nor did it mention Net-
tles’s assertion that Burt’s primary motivation for pleading
guilty was so he could be returned to state prison where
smoking was permitted.
  The court likewise completely disregarded Dr. Rossiter’s
opinion that Burt’s brain damage made him particularly
susceptible to the adverse effects of the psychotropic drugs
he was taking. Dr. Rossiter opined that Burt’s psychiatric
history and medication regimen warranted a competency
hearing, and the Illinois Supreme Court simply ignored his
report. Dr. Rossiter’s report was particularly relevant
because it highlighted one of the critical problems with Dr.
Pearson’s evaluation—its complete disregard for Burt’s
No. 04-1293                                                 23

extensive use of psychotropic medications. All the court said
about Dr. Pearson’s report was that he had deemed Burt
competent to stand trial; the court did not mention that the
evaluation was conducted eight months before trial or that
it failed to address Burt’s medications. See Burt II, 792
N.E.2d at 1258. These pieces of evidence all cast substantial
doubt on Burt’s competency at the time he pleaded guilty.
  The Illinois Supreme Court unreasonably applied Strick-
land to the facts of Burt’s case. The court did not address
the first prong of the test. Its analysis of the second prong
ignored a wealth of evidence that established a reasonable
probability Burt would have been found incompetent had a
hearing been held. See Eddmonds, 93 F.3d at 1317.


                    III. CONCLUSION
   The judgment of the district court denying Burt’s petition
for a writ of habeas corpus is REVERSED. We REMAND with
instructions to GRANT the writ of habeas corpus unless
Illinois informs the district court within a reasonable time
to be fixed by the district court that it intends to retry Burt.

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                     USCA-02-C-0072—9-6-05
