                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2308

P ORFIRIO G UTIERREZ,
                                                Petitioner-Appellant,
                                  v.

K EITH A NGLIN, Warden,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 10 C 1782—Harry D. Leinenweber, Judge.



   A RGUED S EPTEMBER 14, 2012—D ECIDED F EBRUARY 8, 2013




  Before P OSNER, R OVNER and W ILLIAMS, Circuit Judges.
  R OVNER , Circuit Judge. Porfirio Gutierrez was con-
victed of first degree murder in the death of Joyce Ray-
mond. After pursuing his Illinois state court avenues
for relief from that conviction, Gutierrez brought an
action for a writ of habeas corpus in federal district court
pursuant to 28 U.S.C. § 2254, alleging that he received
ineffective assistance of counsel at trial in violation of
the Sixth Amendment. The district court denied his
habeas petition, and he has appealed to this court.
2                                            No. 11-2308

  Gutierrez received two criminal trials in state court,
the first a jury trial and the second a bench trial, and
was convicted each time. At the time of his first trial,
he was taking psychotropic medications to treat his
diagnosed psychiatric disorder. The Illinois appellate
court reversed that conviction and remanded the case
for a new trial because the court had failed to conduct
a fitness hearing to ensure that the medication did not
adversely affect Gutierrez’ fitness to stand trial.
  Gutierrez was again convicted of first degree murder,
this time after a bench trial, and was sentenced to
50 years’ imprisonment. Gutierrez testified at that trial
as to the events of the night of Raymond’s death. He
testified that around 2 a.m., Raymond knocked on
Gutierrez’ apartment door along with two young men.
The knocking and kicking on the door awakened him,
and he asked what they wanted. They responded that
they wanted to talk with him, and he told them he
was busy and they should leave. When they continued
knocking on the door, he became frightened and re-
trieved a knife from the kitchen. He then opened the
door slightly to ask them what they wanted, and one of
the young men began pushing on the door and hit him.
He stabbed that man in the arm and told the man that
he did not want to kill the man but wanted the man to
leave the apartment. That young man left, and Raymond
then pushed her way into the apartment and tried to
hit him. He backed away from her, and she continued
forward. She did not stop and, while she was swinging
at him, he stabbed her with the knife. He then rushed
downstairs and told the clerk to call the police because
No. 11-2308                                           3

people had forced their way into his apartment. He
grabbed a fork that he found in the hallway to use for
protection, and hid in the stairwell while awaiting the
arrival of the police. In the hallway, he encountered
Fernando Corona, and told Corona to call the police
and that a woman had tried to break into his apartment
and rob him. He further testified that he thought the
intruders had a gun.
  That testimony was contradicted by both the testimony
of witnesses and by the physical evidence at trial. The
government witnesses testified that the victim, Raymond,
visited Gutierrez’ apartment late in the evening of
October 24, 1990, with her 14-year-old son Louis
Raymond (“Louis”), where Gutierrez discussed the
prospect of Louis selling drugs for him on the street.
Raymond and Louis eventually left his apartment, and
Louis then related the conversation to his 13-year-old
friend Antonio Alexander (“Antonio”). A few hours later,
shortly before 2:30 a.m., Raymond, Louis and Antonio
returned to Gutierrez’ apartment. The evidence demon-
strated that none of them possessed a weapon, but Ray-
mond carried a can of Old English malt liquor in a
paper bag. Later testing established that Raymond had
a blood alcohol content of 292 milligrams per deciliter,
which an average-sized person would reach only by
drinking fourteen typical drinks in the hour before
testing. Gutierrez opened the door at their knock, told
them to come back later, and closed the door again. At
their third round of knocking, Gutierrez opened the
door, grabbed Antonio by the arm pulling him into the
apartment, and slammed and locked the door behind
4                                           No. 11-2308

him. He stabbed Antonio in the arm inside the apart-
ment, and Antonio fled to the bathroom saying “don’t
kill me.” Antonio encountered another man in the apart-
ment who helped him, and when Gutierrez opened
the door again in response to Raymond’s continued
knocking, Antonio ran from the apartment into the hall-
way. He and Louis retreated down the hallway, but
despite their encouragement Raymond was too drunk to
follow. Gutierrez emerged into the hallway, yanked
Raymond to the floor, and began stabbing her in the
hallway. Another resident of the building, Fernando
Corona, encountered Raymond in the 6th-floor stairwell
of the building crying for help, and saw Gutierrez
climbing the stairs toward the 7th floor holding a
bloody knife. Corona testified that Gutierrez told him
to go ahead and call the police and that Raymond had
tried to rob him and break into his apartment. Corona
stated that Gutierrez then walked down the stairs,
kicked Raymond in the stomach, and told Corona to
let her bleed to death.
  The physical evidence at trial was consistent with the
testimony of the government witnesses. It demonstrated
that there was blood in the stairwell, on the push plate
of the stairwell door, next to the elevator buttons, and
on the floor on the outside of Gutierrez’ door, but not
inside the apartment doorway. The detectives also ob-
served blood on the bathroom floor and around the
bathroom door of Gutierrez’ apartment. There was no
evidence of forced entry or damage to the door of his
apartment. The autopsy demonstrated that Raymond
was stabbed once each in her right abdomen, left
No. 11-2308                                              5

abdomen and left groin, and was stabbed twice in her
left arm and three times on her left hand, causing
her death.
  At that trial, Gutierrez asserted a claim of self defense
as a mitigating factor that could render him guilty of
second degree rather than first degree murder, claiming
that Raymond was breaking into his apartment to rob
and kill him when he stabbed her. Gutierrez’ attorney
did not present any evidence of Gutierrez’ history of
mental illness at the trial.
   Gutierrez argued in a petition for post-conviction
relief in the state court that the evidence of mental
illness could have bolstered his claim of self defense
by establishing that he acted under a belief, though unrea-
sonable, that he needed to defend himself. He argued
that the failure to present that evidence constituted inef-
fective assistance of counsel. The trial court summarily
denied that petition, but the Illinois appellate court re-
versed, holding that the evidence of mental illness
could have reduced his conviction from first degree
to second degree murder, and the court remanded the
case in order for the trial court to conduct an evidentiary
hearing as to the mental illness evidence that could
have been presented.
  At that evidentiary hearing, the court heard exten-
sive testimony as to Gutierrez’ history of treatment for
mental illness. Briefly, that evidence included multiple
hospitalizations for mental illness between 1981 and 1990
when the crime occurred. Gutierrez was diagnosed with
varied mental illnesses during those hospitalizations,
6                                             No. 11-2308

including brief reactive psychosis, atypical psychosis,
undifferentiated chronic schizophrenia with acute ex-
acerbation and antisocial personality disorder, unspeci-
fied psychosis, bipolar affective disorder-manic severe
with psychotic behavior, and other diagnoses of schizo-
phrenia. The treatment notes from those hospitaliza-
tions included references to impaired judgment and
auditory hallucinations.
   Following the evidentiary hearing, the trial court
again denied the petition for post-conviction relief. The
Illinois appellate court affirmed that determination on
appeal. The Illinois Supreme Court then denied leave
to appeal, and therefore our review is of the decision
of the Illinois appellate court.
  Under the Antiterrorism and Effective Death Penalty
Act (AEDPA), a federal court may grant habeas relief on
a claim decided in the state court only if the state
court adjudication: (1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the
Supreme Court; or (2) resulted in a decision that was
based on an unreasonable determination of the facts
in light of the evidence presented to the state court.
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 386
(2000). In state court, Gutierrez argued that his at-
torney’s failure to present evidence of his mental illness
at trial constituted ineffective assistance, and if his
attorney had done so there was a reasonable probability
that he would have been convicted of second degree
rather than first degree murder. He contended that evi-
No. 11-2308                                                7

dence of his mental illness would have demonstrated
that he was suffering from schizophrenic delusions
that caused him to sincerely but unreasonably believe
that his actions were necessary to defend himself
against a physical threat posed by Raymond as she ap-
proached him and was swinging at him in his apart-
ment. The state trial and appellate courts rejected those
assertions, holding that the evidence presented at the
hearing failed to demonstrate that he was suffering
from such delusions at the time of the offense, and that,
in light of the other evidence at trial, there was no rea-
sonable probability that he would have been convicted
of second degree rather than first degree murder even
if such evidence were admitted.
  Gutierrez argues on appeal that the state court determi-
nation was both contrary to Supreme Court precedent
and involved an unreasonable application of the facts
to the law. First, he asserts that the court incorrectly
identified the Strickland standard for analyzing inef-
fective assistance claims, and that the court improperly
used a subjective rather than an objective approach
in applying that standard.
  In Strickland v. Washington, 466 U.S. 668, 687 (1984), the
Supreme Court held that in order to establish a claim
of ineffective assistance of counsel, a petitioner must
demonstrate that his attorney’s performance fell below
an objective standard of reasonableness, and that the
attorney’s deficient performance actually prejudiced
the petitioner. In order to establish prejudice, a petitioner
must demonstrate “a reasonable probability that, but
8                                               No. 11-2308

for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. The
question is not whether the particular factfinder
would have found a reasonable probability from a sub-
jective standpoint, but rather is an objective one. Id. at
695; Harris v. Thompson, 698 F.3d 609, 648 (7th Cir. 2012).
A reasonable probability is a probability sufficient to
undermine confidence in the outcome, but does not
require that a petitioner show that the deficient conduct
more likely than not altered the outcome of the case.
Strickland, 466 U.S. at 694; Harris, 698 F.3d at 644.
   Gutierrez maintains that the state appellate court im-
properly applied Strickland by employing a subjective
standard in determining whether there was a rea-
sonable probability that evidence of Gutierrez’ mental
illness would have changed the outcome. He asserts
that the appellate court did not simply defer to the
trial court’s findings of fact, but also improperly
deferred to the subjective view of the trial court judge
about whether, had the evidence of Gutierrez’ schizo-
phrenia been introduced at trial, that judge would
have concluded that Gutierrez acted with a genuine
though unreasonable belief that he needed to use force
to defend himself from Raymond. Our review of the
Illinois appellate court opinion belies this claim. The
appellate court merely noted that it was authorized to
consider the trial judge’s familiarity with the trial in
reviewing the decision. That is consistent with this court’s
holding in Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir.
2007). In Raygoza, we addressed the application of the
objective standard in a case in which the trial judge
No. 11-2308                                             9

also presided over a post-conviction proceeding. We
noted that the objective standard means that we cannot
accept as conclusive the trial judge’s statement that the
new evidence would not have made any difference to
the outcome, but we also noted that we naturally give
great weight to the judge’s assessment, particularly as
to the credibility of the witnesses. Id. That is the ap-
proach taken by the Illinois appellate court. Moreover,
the Illinois appellate court also held that even if the
mental illness were established, it was insufficient as
a matter of law because the second degree murder
statute does not provide a mitigating factor where a
mental disorder caused the defendant to overreact to a
non-physical threat. That determination by the court
was independent from any subjective analysis of the
trial court, and as we will discuss later that objective
basis is ultimately the dispositive analysis. Accordingly,
the subjective opinion of the trial court was irrelevant
to the portion of the appellate court opinion that is con-
trolling in this appeal, and this argument cannot succeed.
   In addition, Gutierrez argues that the appellate court
repeated the trial court’s error of applying an improper
Strickland standard, akin to a preponderance of the evi-
dence standard, to its prejudice analysis. That conten-
tion mischaracterizes the appellate court’s opinion. The
Illinois appellate court recognized the ambiguity in the
trial court’s language, but repeatedly set forth the
proper test under Strickland. Gutierrez relies on isolated
sentences in which shorthand references were made to
the Strickland standard, but those sentences were not
representative of the court’s analysis. Following the
10                                           No. 11-2308

isolated sentences identified by Gutierrez, the Illinois
appellate court identified in detail the proper standard
under Strickland. Read as a whole and not as isolated
sentences separated from the surrounding content, it
is clear that the Strickland standard was properly
identified and applied.
  Gutierrez also argues that the Illinois appellate court
unreasonably applied the law to the facts in holding
that there was not a reasonable probability that evi-
dence of his mental illness would alter the outcome.
He argues that the court’s decision improperly failed
to credit the evidence that he suffered from schizo-
phrenia at the time of the murder.
   Both the state trial and appellate courts discussed
the evidence that Gutierrez suffered from schizophrenia,
and considered whether the evidence indicated that
his actions that night were impacted by that mental
illness, or whether he was essentially asymptomatic at
that time. There is little evidence that he experienced
any delusions, paranoia, or other significant symptoms
at the time of the murder, but ultimately that inquiry
is of no relevance to our decision. Evidence of a long-
standing mental illness is not a mitigating factor in
the crime of murder, and therefore proof that he was
suffering from schizophrenia or another mental illness
would not allow a jury to convict him of second degree
murder rather than first degree murder. People v. McDon-
ald, 769 N.E.2d 1008, 1019 (Ill. App. 1 Dist. 2002).
  Under Illinois law, second degree murder occurs when
a person commits first degree murder and a mitigating
No. 11-2308                                                  11

factor, either provocation or self defense, is present. Id.
at 1018; see 720 ILCS 5/9-2(a)(1), (a)(2) (West 1994). More-
over, “[t]he defendant ‘bears the burden to prove, by a
preponderance of the evidence, one of the factors in
mitigation which must be present to reduce an offense
of first degree murder to second degree murder.’ ” Id.,
quoting People v. Jeffries, 646 N.E.2d 587, 591 (Ill. 1995). The
only mitigating factor proposed by Gutierrez is that of
self defense. In order to raise the prospect of second
degree murder by reason of self defense, Gutierrez
would have had to establish by a preponderance of the
evidence that he actually believed, though unrea-
sonably, that he was physically threatened. Id. at 1019.
The second degree murder statute “does not cover, how-
ever, ‘circumstances where a mental disorder causes
the defendant to overreact to a non-physical threat.’ ” Id.,
quoting People v. Yates, 551 N.E.2d 999, 1001 (Ill. App. 3
Dist. 1990).
   The only evidence at trial that Gutierrez responded,
albeit unreasonably, to a physical threat was his testi-
mony that Raymond had barged into his apartment
and was coming at him attempting to hit him despite
his protestations. He faults his counsel for failing
to produce evidence of his mental illness, but that
evidence would have been of little to no help as to the
critical issue of whether he actually believed that he
was physically threatened. The evidence would have
demonstrated that he suffered from some mental
illness which resulted in numerous hospitalizations, and
included repeated diagnoses of schizophrenia. There
was virtually no evidence, however, that he was experi-
12                                           No. 11-2308

encing any symptoms of that mental illness on that
night which would have caused him to perceive a
physical threat.
   Gutierrez’ assertion of a physical threat was based
upon his testimony of a forced entry into his apartment.
He has never argued that their presence in the hallway
itself posed a physical threat or that his mental illness
caused him to perceive them as a physical threat despite
the locked apartment door. He instead asserts that al-
though the visitors to his apartment were unarmed,
his mental illness contributed to his perception that
they posed a physical threat when they pushed their
way into his apartment and approached him. That testi-
mony by Gutierrez, however, is contradicted by virtu-
ally all of the eyewitness testimony and the physical
evidence in the case. The eyewitness testimony was
that Gutierrez pulled Antonio into the apartment and
began stabbing him, and that Antonio fled to the
bathroom to avoid the attack. Antonio then escaped
the apartment, at which time Gutierrez entered the hall-
way, pulled Raymond to the floor, and began stabbing
her. The physical evidence corroborates that testimony.
The blood found in the apartment was near the bath-
room. Significant blood evidence was found in the
hallway outside of the apartment, but no such evidence
was found near the doorway inside the apartment
where Gutierrez claimed that he stabbed Raymond.
Blood was also found in the stairwell and near the
elevator button in the hallway. There was no sign of
forced entry into the apartment, and the door was not
damaged. Therefore, neither the eyewitness testimony
No. 11-2308                                            13

nor the physical evidence supported Gutierrez’ claim
that they forced their way into his apartment and pre-
sented a physical threat. And the evidence of mental
illness would not have addressed that shortcoming at
all. His argument that they presented a physical threat
was never based on any delusion or hallucination that
he claims to have experienced based on their presence
in the hallway, and that mental illness evidence does not
speak at all to whether they entered the apartment.
The evidence could have been useful in explaining why
he believed that unarmed persons entering his apart-
ment posed a threat, but it is the lack of evidence that
the victim entered the apartment and approached him
that is the major problem for Gutierrez in establishing
the mitigating factor here.
  The appellate court held that even if evidence of
Gutierrez’ mental illness had been presented, there was
no reasonable probability that the court would have
found that Gutierrez had a genuine, though unrea-
sonable, belief that it was necessary for him to use
deadly force to defend himself from Raymond. The
court based that holding on the testimony of the two
witnesses that Gutierrez had exited his apartment to
kill Raymond, and that the witness testimony was con-
sistent with the physical evidence. Finally, the court
noted that evidence of long-standing mental illness is
not a mitigating factor under the second degree murder
statute, nor is it a mitigating factor if a mental illness
causes a defendant to overreact to a non-physical threat.
McDonald, 769 N.E.2d at 1019. Gutierrez did not assert
a defense of insanity and does not claim error in the
14                                             No. 11-2308

failure of his attorney to do so. Accordingly, the Illinois
appellate court properly analyzed the evidence of his
mental illness solely from the perspective of its impact
on the self defense mitigating factor in the second degree
murder statute. There is no reasonable probability that
the evidence of Gutierrez’ mental illness would have
caused a jury to convict him of second degree murder
rather than first degree murder, because Gutierrez has
not presented any argument that the mental illness evi-
dence would have aided in establishing the critical com-
ponent that Gutierrez actually believed that he was
physically threatened. The decision by the Illinois appel-
late court is a reasonable application of the law to the
facts, and therefore is not reversible error under the
AEDPA standard. See Floyd v. Hanks, 364 F.3d 847,
850 (7th Cir. 2004). The decision of the district court
denying the writ of habeas corpus is A FFIRMED.




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