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

No. 02-1731
STEVEN B. SCHULTZ,
                                            Petitioner-Appellee,
                               v.

THOMAS F. PAGE, Warden,
                                        Respondent-Appellant.
                         ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
            No. 99 C 491—Michael J. Reagan, Judge.
                         ____________
 ARGUED NOVEMBER 1, 2002—DECIDED DECEMBER 19, 2002
                    ____________


  Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
   BAUER, Circuit Judge. Petitioner Steven B. Schultz
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 after the Appellate Court of Illinois af-
firmed his conviction for the November 7, 1995, murder
of Betty Taft in Poplar Grove, Illinois. Prior to the trial,
counsel for Schultz requested that Schultz be examined
for fitness to stand trial as well as for his sanity at the
time of the offense. The trial court granted the first re-
quest but not the second, and a doctor subsequently found
Schultz fit for trial. After his conviction, Schultz ap-
pealed the denial of the sanity examination, but the ap-
pellate court affirmed the trial court’s decision. Schultz
then filed a petition for writ of habeas corpus in the South-
2                                               No. 02-1731

ern District of Illinois, which was granted. The State
of Illinois (“State” or “Illinois”) now appeals the decision
of the district court. Because we find that the Illinois ap-
pellate court erroneously applied federal law, we affirm
the district court’s decision.


                     BACKGROUND
    A. Underlying Facts and Schultz’s Murder Trial
  Schultz was born in 1976 in Watseka, Illinois. To say
that his childhood was a troubled one is an understatement.
His mother apparently neglected him, preferring to spend
her time in local taverns, and his older sister served as
his primary caregiver. When Schultz was a young boy, a
teenage acquaintance sexually abused him. Schultz dropped
out of high school and studied for, but ultimately failed,
the GED exam. In 1994, Schultz spent two weeks in a
psychiatric hospital and was diagnosed with “affective
disorder bipolar, depressed.” Other members of his im-
mediate family also have a history of mental illness, depres-
sion, and suicide. Schultz’s father, who Schultz claimed
also physically abused him as a child, employed him
sporadically, but he was otherwise without employment.
While he was close to his older sister who cared for him
as a child, by November of 1995 Schultz lost contact with
her. Though things had not gone well for Schultz to that
point in his life, they certainly did not get better.
  On November 7, 1995, Schultz killed his girlfriend, Betty
Taft, by choking her to death after tying her arms and
legs behind her back. The day after the murder, Schultz
told police that he killed Taft because she insisted that
“she wanted to be with her mother.” The State charged
Schultz with first degree murder and scheduled his trial
in the Circuit Court of Boone County, Illinois, for May 6,
1996.
No. 02-1731                                              3

   On May 1, 1996, Schultz’s counsel filed a motion to
have his client examined for fitness to stand trial. The
following day Schultz’s attorney received supplemental
discovery from the State containing a letter written by
Joan Lodge, a licensed clinical social worker at the Janet
Wattles Center. The letter stated that Lodge had ex-
amined Schultz on March 14, 1996, after he complained of
seeing bugs and worms on the walls while in pre-trial
detention and that Schultz appeared depressed, that he
reported sleep disturbance, and that he complained of
little motor activity and poor concentration. Lodge noted
the history of mental illness, depression, and suicide in
Schultz’s family as well as the fact that Schultz had
been hospitalized for two weeks in 1994.
  During the 1994 hospitalization, after diagnosing Schultz
with “affective disorder bipolar, depressed” doctors pre-
scribed the drugs Prozac and Depakote. Prozac is an anti-
depressant and Depakote has recently been used to combat
manic episodes, a condition where the patient experiences
mood swings from euphoria to depression. Lodge recom-
mended, after her March 14, 1996, evaluation of Schultz,
that he again be given those medications. Claiming that
this information raised a bona fide doubt about Schultz’s
sanity at the time of the crime, his attorney filed a sepa-
rate motion on May 2 to have Schultz evaluated for his
sanity at the time of the murder.
  On May 2, the trial court addressed the May 1 motion
for a fitness examination by appointing Dr. Terrance
Lichtenwald, a clinical and forensic psychologist, to exam-
ine Schultz for fitness purposes. The trial judge empha-
sized that his concern in appointing Dr. Lichtenwald
was the doctor’s ability to administer the exam and re-
port back to the court by ten o’clock the next morning, so
as not to delay the trial schedule. Dr. Lichtenwald met
with Schultz on the afternoon of May 2 for several hours,
4                                              No. 02-1731

administering various tests and reviewing reports on
Schultz.
   The following morning, the trial court held a hearing
on Schultz’s fitness to stand trial. Dr. Lichtenwald and
two witnesses from the Boone County jail testified as
to Schultz’s current condition and complaints. Specifically,
Dr. Lichtenwald opined that Schultz was fit to stand
trial, and though he acknowledged Schultz’s previous psy-
chiatric hospitalization and prescription, he questioned
the accuracy of Schultz’s diagnosis. Interestingly, how-
ever, Dr. Lichtenwald stated on cross-examination that
Schultz’s hallucinations “could be part of some brain
injury.” He also conceded that given more time he would
have conducted further testing into Schultz’s childhood
trauma and that eventually a neurological examination
of Schultz might have been warranted or necessary. Fol-
lowing the hearing, the trial court ruled that Schultz was
fit to stand trial.
  The trial judge did not conduct any further hearing on
the sanity issue and asked defense counsel whether no-
tice of the insanity defense had been given according
to Illinois law, 725 ILL. COMP. STAT. 5/115-6 and ILL. SUP.
CT. R. 413(d). Schultz’s attorney answered that notice
had not been given because he had only filed the motion
for a sanity examination the previous day, immediately
after learning of Lodge’s exam and his client’s 1994 psy-
chiatric hospitalization. After taking a short recess to
consult Illinois case law, the trial judge denied Schultz’s
motion for a sanity examination.
  The court based its ruling on the fact that notice of the
insanity defense had not been given and that Dr.
Lichtenwald’s testimony revealed no reasonable basis
from which to believe that an insanity defense could be
raised. When Schultz’s attorney pressed for clarification
on the ruling, the trial judge responded that Dr. Lichten-
No. 02-1731                                                  5

wald had “already done all the work” during his fitness
examination of Schultz.


  B. Decisions of the Illinois Appellate Court &
     United States District Court
  Schultz appealed his conviction, including the denial of
an examination to determine his sanity at the time of
the murder, to the Illinois appellate court. In affirming
the trial court’s decision not to appoint another psychiatrist,
the appellate court found Ake v. Oklahoma, 470 U.S. 68
(1985), inapplicable. The appellate court noted properly
that Ake supports the constitutional right of an indigent
defendant, such as Schultz, to have a psychiatrist ap-
pointed to conduct a sanity examination when the indi-
gent defendant has shown that his sanity at the time of
the offense will be a “significant factor” at trial. Ake v.
Oklahoma, 470 U.S. 68, 83 (1985). The appellate court’s
legal analysis of Ake as applied to Schultz’s case, however,
stated in its entirety:
    We find Ake inapplicable to the present case. Here,
    [Schultz’s] sanity was never a factor, much less a
    significant factor. The State did not order psychi-
    atric care to bolster its case, nor did [Schultz] ever
    raise the defense of insanity. Further, we acknowl-
    edge that [Schultz] did have access to psychiatric care,
    as he had been previously examined by Lichtenwald
    and Lodge. Cf. People v. Johnson, 154 Ill. 2d 356, 370
    (1993).
People v. Schultz, No. 2-96-1318, Unpublished Rule 23
Order, at 30 (Ill. App. Ct., 2nd Dist., Sept. 29, 1998). The
appellate court went on to hold that the trial court did
not abuse its discretion under Illinois law in denying
Schultz a psychiatric exam, in part, because the trial
court had ample opportunity to evaluate Schultz and
determine his credibility at various pre-trial hearings.
6                                               No. 02-1731

  Schultz then filed a petition for writ of habeas corpus in
the Southern District of Illinois alleging a denial of due
process under Ake. A Magistrate Judge initially recom-
mended that the petition be denied; the district court,
however, granted Schultz’s petition, finding that the trial
court’s decision not to appoint a psychiatrist was con-
trary to clearly established federal law as determined
by the United States Supreme Court. In particular, the
district court rejected the notion that Schultz’s sanity at
the time of the crime could not be a significant factor
at trial. The district court likened Schultz’s case to People
v. Kegley, 529 N.E.2d 1118 (Ill. App. Ct. 1988), in which
the Appellate Court of Illinois found more than suffi-
cient evidence to require the appointment of a psychi-
atrist under Ake.
  The district court noted that the trial court was aware
from Dr. Lichtenwald’s testimony that Schultz was hos-
pitalized for bipolar disorder in 1994 and that Schultz
stopped taking prescribed medication after his release
from the hospital. The district court also noted that the
trial court was aware that Schultz was treated for halluci-
nations while in pre-trial detention and that psycho-
tropic medication was prescribed for him again. Finally,
the district court highlighted the trial court’s awareness
of Schultz’s peculiar behavior when arrested, when he
confessed to the crime, and when he testified before
the trial court at preliminary hearings. Specifically, the
district court pointed to the fact that Schultz claimed:
a) that the victim told him to choke her; and b) that he
believed that if he confessed the State’s Attorney would
let him “walk free.”
  The State appeals and relies on three arguments to
support reversal of the district court’s decision. First, the
State argues that the district court examined the incor-
rect state court decision by looking to the actions of
the Illinois trial court because federal law requires the
No. 02-1731                                                7

district court to examine the ruling of the last state court
to rule on the claim. This was the Illinois appellate court,
which rejected Schultz’s request with a brief review of
Ake. Second, the State argues that the Illinois trial court
did not issue a ruling contrary to Ake because Schultz
based his request for a psychiatric exam specifically on
the state statute and not under Ake. Finally, the State
argues that the district court improperly concluded that
the trial court’s refusal to appoint the psychiatrist was
contrary to the rule annunciated in Ake.


                        ANALYSIS
  A. Standard of Review
  Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), a federal court may grant habeas
relief only if the state court’s decision on the merits of
an issue was either “contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or
“an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d) (2002); Brown v. Sternes, 304 F.3d 677, 690
(7th Cir. 2002).
  We review a district court’s findings of fact for clear
error and its rulings on questions of law de novo. Ouska v.
Cahill-Masching, 246 F.3d 1036, 1044 (7th Cir. 2001). We
also apply de novo review to determine whether a state
court ruling was “contrary to,” id., or an “unreasonable
application” of clearly established federal law, though “with
a grant of deference to any reasonable state court deci-
sion” on the latter question, Schaff v. Snyder, 190 F.3d
513, 522 (7th Cir. 1999) (emphasis in original). The state
court decision is reasonable if it is “ ‘minimally consistent
with the facts and circumstances of the case.’ ” Schaff, 190
F.3d at 523.
8                                                No. 02-1731

    B. Proper State Court Decision to Examine
  The State asserts correctly that a federal court review-
ing a habeas petition should examine the decision of
the last state court to rule on the merits of the issue. Cossel
v. Miller, 229 F.3d 649, 654 (7th Cir. 2000). Here, the
district court based its ruling on the decision of the Illi-
nois trial court without examining the Illinois appellate
court’s rejection of Schultz’s Ake claim. We will, however,
examine the appellate court’s treatment of Schultz’s Ake
claim, mindful of the fact that we can affirm on any
ground not waived or forfeited in the district court. Horton
v. United States, 244 F.3d 546, 549 (7th Cir. 2000). This
determination disposes of the State’s first argument
that the district court reviewed the wrong state court
decision.
   We, likewise, dispose easily of the State’s second argu-
ment that Schultz based his request for a psychiatrist
only on a state statute and not under Ake. Because the
parties argued the merits of Schultz’s Ake claim in the
Illinois appellate court, the merits of his Ake claim are
properly before this Court. In effect, the State asks us
to ignore its first argument (that we should look only to
the Illinois appellate court) in order to adopt its second
argument. We reject the State’s argument that Ake was
not properly raised by Schultz and address the merits of
that claim below.


    C. The Merits of Schultz’s Ake Claim
  It bears noting that under Illinois law manic-depression,
a bipolar disorder, might serve as a basis for finding
a person legally insane. See People v. Hammerli, 662
N.E.2d 452, 456 (Ill. App. Ct. 1996) (affirming decision
that defendant was guilty but mentally ill due to manic-
depression); see also People v. Black, 10 N.E.2d 801, 803
No. 02-1731                                                  9

(Ill. 1937) (discussing testimony of expert witness who
diagnosed defendant as “suffering from manic-depressive
insanity with alcoholism”); Hall v. Pittenger, 6 N.E.2d 134,
137 (Ill. 1936) (discussing testimony over whether de-
fendant “had been suffering from a manic depressive
form of insanity”).
  Though there is apparently no case directly holding
that “affective disorder bipolar, depressed,” from which
Schultz suffers, would be sufficient to establish legal
insanity, the Illinois courts have discussed Schultz’s par-
ticular diagnosis as a mental illness, which could possibly
lead to a finding that he was legally insane at the time
of the crime. Whether or not he should or could assert
an insanity defense, however, cannot be answered with-
out appointing a psychiatrist. We must determine, there-
fore, whether the decision of the Illinois appellate court
was “contrary to” or an “unreasonable application of” clear-
ly established federal law.
  A state court decision is “contrary to” Supreme Court
precedent if: a) it arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law; or
b) the state court reaches a result opposite to the Su-
preme Court on facts that are materially indistinguish-
able from relevant Supreme Court precedent. Ouska, 246
F.3d at 1044. We will address only the first prong under
the “contrary to” test.
  As we noted above, the Supreme Court held as a mat-
ter of law in Ake v. Oklahoma that an indigent defendant
is entitled to have a psychiatrist appointed to assist in
his defense if the defendant shows that his sanity at the
time of the crime will be a significant factor at trial. Ake v.
Oklahoma, 470 U.S. 68, 83 (1985). The Illinois appellate
court held that Schultz’s sanity “was never a factor, much
less a significant factor” because: 1) the State did not or-
der psychiatric care to bolster its case; 2) Schultz did
10                                               No. 02-1731

not formally raise the insanity defense; and 3) Schultz
had access to psychiatric care by Lodge and Dr. Lichten-
wald.
  First, the State’s decision to order a psychiatric exam-
ination of a defendant has little to do with an indigent
defendant’s right under Ake to have a mental health ex-
pert assist in the preparation of his defense. A state-
initiated, psychiatric examination of a defendant merely
demonstrates that in such a situation the defendant is
clearly entitled to his own expert and examination to
help prepare his defense because the state has signaled
that it may use psychological evidence against the defen-
dant. The absence of such an examination by the State,
however, cannot be used by a court to determine that
an indigent defendant is not entitled to an examination
when the defendant initiates the request for one. The
State’s belief that such absence is in some way relevant
is unfounded. The appellate court’s reliance on the fact
that prosecutors did not initiate a psychiatric exam of
Schultz, therefore, is misplaced.
   Next, the appellate court stated that Schultz never
formally raised the insanity defense. The court, presum-
ably, is referring to the statutory procedures under Illi-
nois law for asserting the insanity defense as they existed
at the time of Schultz’s trial. See 720 ILL. COMP. STAT. 5/6-2
(1996), amended by P.A. 89-404, § 15, eff. Aug. 20, 1995
(declared unconstitutional by People v. Ramsey, 735 N.E.2d
533 (Ill. 2000)); 725 ILL. COMP. STAT. 5/115-6 (1996); ILL.
SUP. CT. R. 413(d). Because Schultz’s trial counsel learned
of his client’s 1994 hospitalization and Lodge’s March 1996
examination only days before the trial was scheduled to
begin, and because counsel immediately requested both
fitness and sanity examinations, we find it difficult to
understand how he could have formally asserted an insan-
ity defense before the appointment of a psychiatrist. We
need not, however, delve further into Illinois law on this
No. 02-1731                                               11

procedure; we find that Schultz’s request for a psychiatric
examination sufficiently alerted the State and the trial
court to the possibility that he might plead insanity.
  Third, the appellate court based its rejection of Schultz’s
Ake claim by miscasting the nature of Lodge’s and Dr.
Lichtenwald’s examinations. Lodge is a licensed clinical
social worker, not a medical or psychiatric doctor, who
examined Schultz on March 14, 1996, after he complained
of hallucinations in pre-trial detention. While the State
did not explain why it did not forward notice of this exam to
Schultz’s attorney until short days before trial, Lodge’s
examination did nothing to evaluate Schultz’s sanity at
the time of the crime.
  Similarly, though he is a psychiatric doctor, Dr.
Lichtenwald examined Schultz only for fitness to stand
trial. While portions of that examination might be rele-
vant or repeated during an examination as to his sanity
at the time of the murder, it is difficult to understand why
the Illinois appellate court considered a fitness examina-
tion sufficient for purposes of determining Schultz’s sanity
at the time of the crime. Such a determination runs coun-
ter to Illinois precedent clearly recognizing the inher-
ent difference between the two examinations. People v.
Adamcyk, 631 N.E.2d 407, 411 (Ill. App. Ct. 1996). While
the State concedes as much, it argues that Schultz’s ac-
cess to some psychiatric care can be relevant to our deter-
mination. We are unpersuaded by this argument.
  Furthermore, Dr. Lichtenwald’s concessions regarding
the additional testing he would have performed on
Schultz as well as his testimony on the possible origin of
Schultz’s hallucinations as “part of some brain injury”
support our conclusion that the examinations conducted
by Lodge and Dr. Lichtenwald did not constitute suffi-
cient psychiatric evaluation for determining whether
Schultz was sane at the time of the crime.
12                                               No. 02-1731

  Beyond rejecting the appellate court’s assertions, there
is ample evidence to suggest that Schultz’s sanity at the
time of the crime would be a significant factor at trial. Ake,
470 U.S. at 83. To begin with, Schultz was hospitalized
for two weeks in a psychiatric institution in 1994, during
which time doctors diagnosed him with “affective disorder
bipolar, depressed” and prescribed the psychotropic drugs
Prozac and Depakote. It is also unclear whether Schultz
was still on this medication when he killed Taft. His fam-
ily history of depression, suicide, and mental illness has
been documented by mental health professionals. His
parents abused or neglected him and an older, teenage
boy sexually abused him as a child.
  When Schultz was arrested, he claimed that the vic-
tim wanted him to choke her to death so that she could
“be with her mother.” He also testified that he thought
the State’s Attorney would let him “walk free” if he con-
fessed to the crime. As the dissent characterized it,
Schultz’s “admission to the crime [was] saturated with
psychological overtones.” People v. Schultz, No. 2-96-1318,
Unpublished Rule 23 Order, at 39 (Ill. App. Ct., 2nd Dist.,
Sept. 29, 1998) (Bowman, J., dissenting). Finally, during
pre-trial detention Schultz complained of seeing bugs
and worms on the wall. Schultz’s behavior was erratic
enough that the Boone County jail brought in Lodge to
examine him. She concurred with Schultz’s bipolar diag-
nosis and advised that he restart the medication origi-
nally prescribed during the 1994 hospitalization.
  A state court decision is based on an “unreasonable
application” of clearly established federal law if the state
court identifies the correct legal principle but applies
it unreasonably to the facts at hand. Ouska, 246 F.3d at
1044. The Illinois appellate court identified Ake in its de-
cision, though it held that Ake was inapplicable after
determining that Schultz’s sanity “was never a factor, much
less a significant factor.” We turn now to whether the
No. 02-1731                                               13

appellate court unreasonably applied Ake, keeping in
mind the appropriate deference we are to show the
state court decision. Schaff, 190 F.3d at 522.
  We find that the appellate court’s treatment of Ake
was not minimally consistent with the facts and circum-
stances of Schultz’s case. Schaff, 190 F.3d at 523. We
dismissed above each of the grounds upon which the
appellate court determined that Ake did not apply and
found that enough evidence existed to show that Schultz’s
sanity at the time of the crime would be a significant
factor in his trial.
  The appellate court’s decision also runs counter to its
own precedent. As the dissent in the appellate court
pointed out, the Appellate Court of Illinois in People v.
Kegley held that the defendant was entitled to a psychi-
atric examination under Ake. People v. Kegley, 529 N.E.2d
1118, 1123 (Ill. App. Ct. 1988). The court first held that
Kegley’s request for an examination was timely, even
though it was made two days before trial. Id. at 1122.
Schultz’s attorney filed his motion for the appointment of
a psychiatrist more than two days before trial and did
so immediately upon learning of evidence that brought
Schultz’s sanity into question. Thus, Schultz’s request was
timely as well.
   Similarly, the Kegley court found that enough evidence
existed showing that Kegley’s sanity at the time of the
crime would be a significant factor at trial. Id. at 1122. In
particular, the court pointed to Kegley’s irrational be-
havior when he was arrested, including asking the police
to shoot him and hitting his head and shoulders against
the bars and walls of his cell. Id. at 1119. Kegley’s pub-
lic defender commented that he “had become ‘an intense
religionist to such exaggerated extent that the fervor
borders on the irrational.’ ” Id. The court also noted his
numerous hospitalizations for mental health and sub-
stance abuse problems, including testing positive for
14                                             No. 02-1731

drugs and alcohol when arrested, and his expression of
suicidal desires to his attorney during trial. Id. at 1120.
  Schultz’s behavior during police interrogation was equally
abnormal, in that he claimed Taft wanted him to choke
her to death so that she “could be with her mother” and
that he believed his confession meant the State’s Attorney
would let him “walk free.” Schultz was also hospitalized
for mental health reasons, but apparently unlike Kegley,
Schultz was medicated for his problems. Also unlike Kegley,
Schultz complained of hallucinations during pre-trial de-
tention, has a family history of depression and suicide,
and was abused and neglected as a child. Accordingly,
we conclude that the facts of Schultz’s case resonate
enough with those in Kegley that even Illinois’ precedent
demonstrates the need for appointing a psychiatrist to
examine Schultz’s sanity at the time of the crime.


                     CONCLUSION
  We hold that the Illinois appellate court’s rejection of
Schultz’s Ake claim was both contrary to and an unrea-
sonable application of clearly established United States
Supreme Court precedent requiring the appointment of
a psychiatrist; Schultz showed that his sanity at the time
of the crime would be a significant factor at trial. Accord-
ingly, we AFFIRM the decision of the district court to
grant the writ of habeas corpus.

A true Copy:
      Teste:

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

                  USCA-02-C-0072—12-19-02
