                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2839
                                    ___________

Ricky Wayne Forsyth,                     *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
John Ault II, Warden,                    *
Anamosa State Penitentiary,              *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: April 15, 2008
                                 Filed: August 8, 2008
                                  ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Ricky Wayne Forsyth was convicted by an Iowa jury in April 1994 of first-
degree murder for the deaths of his estranged wife, his three children, and two
children of his wife’s boyfriend. His conviction was affirmed on direct appeal. Iowa
v. Forsyth, 547 N.W.2d 883 (Iowa Ct. App. 1996). On appeal from the denial of
Forsyth’s application for post-conviction relief, the Iowa Court of Appeals rejected
his claim that he had been denied the effective assistance of counsel by reason of
counsel’s failure to adequately argue that Forsyth was not competent to stand trial and
by raising a factual defense rather than one based on insanity or diminished
responsibility. The court also rejected Forsyth’s claim that his appellate counsel was
ineffective for failing to raise these issues on appeal. Forsyth v. Iowa, No. 03-1378,
2004 WL 1161614 (Iowa Ct. App. May 26, 2004). Having exhausted his remedies
under Iowa law, he filed suit in federal district court for a writ of habeas corpus under
28 U.S.C. § 2254, alleging that the performances of his trial counsel and appellate
counsel were so inadequate that they deprived him of his Sixth Amendment right to
counsel. Forsyth now appeals from the district court’s1 denial of his requested relief.
We affirm.

                                    I. Background

       On June 14, 1993, Forsyth was found lying on the floor of his wife’s bedroom,
with the bodies of his wife and their three children lying on the bed therein. He had
gunshot wounds to his head and wrist. Forsyth now suffers from amnesia and cannot
remember much of what occurred on June 13-15, including any events related to the
murders.

      Dr. William Robert McMordie, a clinical neuropsychologist, interviewed
Forsyth four times in June and July of 1993, altogether spending about seven and one-
half hours with him. Dr. McMordie informed trial counsel that, in his professional
opinion, Forsyth was competent to stand trial and that Dr. McMordie’s evaluation of
Forsyth did not support an insanity defense.

        Dr. Loren Olson, a psychiatrist, saw Forsyth on about ten occasions while he
was still in the hospital following the murders and before he was indicted. Dr. Olson
testified that Forsyth understood the gravity of his legal situation. Dr. Olson also
stated that if a defendant is amnesic for the events surrounding an alleged crime, it is
impossible to determine whether he understood the nature and quality of his actions


      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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or whether he had the mental capacity to know the difference between right and
wrong.

        Dr. Mark Souza, a psychiatrist, stated that Forsyth’s amnesia was real and
would prevent him from testifying about the events of June 14, 1993. Dr. Souza also
testified that Forsyth was aware of his legal circumstances and that Dr. Souza knew
of no impairment to Forsyth’s ability to communicate with his counsel other than the
amnesia. Dr. Souza stated that he could not form an opinion to a reasonable degree
of medical certainty about possible conditions of insanity or diminished responsibility
because Forsyth had no memory of his mental state regarding the events of June 14,
1993, and because the other available evidence of Forsyth’s state of mind was
insufficient to form the basis of an opinion regarding those matters.

       Dr. Michael Taylor, a psychiatrist retained by the state, evaluated Forsyth on
October 8, 1993. It was his opinion that Forsyth was not suffering from any type of
mental disease or defect at the time of the murders and that he was capable of
distinguishing between right and wrong at that time. Although Dr. Taylor did not
directly communicate his opinions to trial counsel before Forsyth’s trial, trial counsel
assumed from the fact that the state did not call him to testify at the competency
hearing that Dr. Taylor agreed that Forsyth was competent to stand trial.

       Dr. William S. Logan, a forensic psychiatrist, interviewed Forsyth for about six
hours on October 5, 2001, and reviewed a number of documents related to the trial and
some other documents possibly relevant to Forsyth’s psychological state. He opined
that Forsyth was not competent to stand trial. He further opined that Forsyth suffered
from a major depressive disorder complicated by psychotic features at the time of the
murders and that this mental disease prevented him from being able to tell the
difference between right and wrong or to appreciate the nature and quality of his
conduct.



                                          -3-
       Prior to the murders, Forsyth had had extensive contact with psychological
professionals. A psychological report completed following the murders indicated that
Forsyth had received psychotherapy since 1977 for anger and violent impulses,
marital and family problems, and general depression. It is unclear how regular
Forsyth’s visits were in the 1980s, but after his youngest son died in a bicycle accident
in 1990, he was placed on an anti-depressant medication, in addition to receiving
ongoing counseling. After Forsyth pleaded guilty to assaulting his sixteen-year-old
son with a paddle in 1991, the school board asked Dr. Taylor to evaluate whether
Forsyth should be reinstated as a bus driver. Dr. Taylor reported no evidence of any
psychiatric disorder and recommended that Forsyth be reinstated. The psychologist
that Forsyth was seeing noted in December 1992 that Forsyth had been chronically
depressed for at least one year. Forsyth completed a Minnesota Multiphasic
Personality Inventory (MMPI II) test in May 1993, apparently in connection with
impending divorce and custody proceedings. The results were evaluated by two
psychologists, one in 1993 and one in 2003, both of whom said that the results were
not consistent with either major depressive disorder or any other major psychiatric
illness.

       As recounted earlier, the Iowa Court of Appeals rejected the claims raised in
Forsyth’s appeals from the denial of post-conviction relief. In the present proceeding,
the district court held that the Iowa court had not unreasonably applied any federal
law, nor had it unreasonably found any facts in light of the evidence before it. Forsyth
v. Ault, No. 4-04-CV-00567-REL (S.D. Iowa July 30, 2007).

                                    II. Discussion

       We review a district court’s conclusions of law de novo and its findings of fact
for clear error. Malcom v. Houston, 518 F.3d 624, 626 (8th Cir. 2008).




                                          -4-
        A state prisoner is entitled to a writ of habeas corpus from a federal court only
if the state court decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law,” or “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). Thus, the state court’s decision must be objectively unreasonable,
and not merely incorrect, for us to grant the writ. Lockyer v. Andrade, 538 U.S. 63,
75-76 (2003). We presume that the state court’s findings of fact are correct, and the
prisoner has “the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).

       A defendant’s Sixth Amendment right to counsel is violated if counsel’s
performance was so inadequate that the resulting breakdown in the adversarial process
undermines confidence in the result of the proceeding. Bell v. Cone, 535 U.S. 685,
695 (2002). Counsel’s performance is constitutionally deficient if it is objectively
unreasonable and results in actual prejudice. Malcom, 518 F.3d at 626. Prejudice
exists only if there is a reasonable probability that the outcome would have been
different had counsel’s performance been adequate. Id. There is a strong presumption
that counsel’s strategic choices were reasonable. McGurk v. Stenberg, 163 F.3d 470,
473 (8th Cir. 1998).

                            A. Competency to Stand Trial

      Forsyth argues that his trial counsel was constitutionally ineffective for failing
to argue adequately that he was incompetent to stand trial. A defendant is
incompetent to stand trial if he is unable to understand the charges he faces and the
consequences involved or he is unable to communicate with counsel “with a
reasonable degree of rational understanding.” Cooper v. Oklahoma, 517 U.S. 348,
354 (1996). A defendant is presumed competent and bears the burden of proving
otherwise. Iowa v. Rieflin, 558 N.W.2d 149, 152 (Iowa 1996); see Cooper, 517 U.S.
at 355 (noting that such rules are not proscribed by the Constitution).

                                          -5-
       Trial counsel’s primary argument at Forsyth’s trial-competency hearing was
that Forsyth’s amnesia rendered him unable to assist in his own defense. At Forsyth’s
post-conviction relief hearing, trial counsel testified that the mental health experts
were asked generally about Forsyth’s competency and that they focused on his
amnesia as bearing on that question. Despite the expert testimony that Forsyth’s
amnesia was real, amnesia alone is not sufficient under Iowa law to establish
incompetency to stand trial. See Iowa v. Emerson, 375 N.W.2d 256, 261 (Iowa 1985).
Accordingly, the Iowa court rejected Forsyth’s claim.

       Forsyth now contends that trial counsel was ineffective for failing to argue that
Forsyth’s delusion that his family was still alive rendered him incompetent to stand
trial. Evidence of Forsyth’s delusions was actually before the Iowa court, however,
and based on the evidence available to trial counsel, there was no reason to emphasize
Forsyth’s delusions. At the post-conviction relief hearing, trial counsel stated that:

      [I]n my personal dealings with Rick, there was never any indication of
      the type of delusional thinking [that he demonstrated] at the time he was
      in the hospital. It was also explained to me that with the passage of time,
      the healing, those symptoms would go away, and they did. He was
      aware that his wife and children were dead all the time I dealt with him.

J.A. at 712-13. The testimony of the mental health professionals who examined
Forsyth support trial counsel’s statement that the delusions faded with time. Dr.
Olson testified that while he was in the hospital, Forsyth initially believed that his
family was not dead, but that as time progressed he began to speak more about the
reality of the situation. Dr. McMordie testified that Forsyth was at times delusional
that his family was still alive, but that at other times he accepted the reality of the
situation. Dr. McMordie stated this kind of confusion is not unusual following a head
injury. Dr. Taylor testified that during his interview with Forsyth in October 1993,
Forsyth expressed no delusional thinking and was well aware that his family was



                                          -6-
dead. The picture presented by this testimony indicates that there was no need for trial
counsel to conduct any further inquiry into the matter of Forsyth’s initial delusions.

       Notwithstanding Forsyth’s claim of ongoing delusions, the Iowa Court of
Appeals held that any argument that Forsyth was incompetent to stand trial by reason
of another mental defect would have been futile. Forsyth v. Iowa, No. 03-1378, 2004
WL 1161614, at *3 (Iowa Ct. App. May 26, 2004). As indicated above, Forsyth was
examined in varying degrees by a psychologist and three psychiatrists. Although Drs.
McMordie, Olson, and Souza believed that Forsyth’s amnesia was real, neither they
nor Dr. Taylor expressed any belief that Forsyth was mentally unable to comprehend
his legal situation or to communicate rationally with his counsel. Drs. McMordie and
Taylor specifically opined that Forsyth was competent to stand trial, while both Dr.
Olson and Dr. Souza believed that he understood his legal situation. None of these
mental health professionals pointed to Forsyth’s delusions as being of importance with
respect to his competence to stand trial.

       That Forsyth was able in 2001 to obtain a psychiatrist, Dr. Logan, who was
willing to testify that Forsyth was unable to understand the nature of the proceedings
against him or to rationally communicate with his counsel does not make trial
counsel’s conduct unreasonable. See Marcrum v. Luebbers, 509 F.3d 489, 511 (8th
Cir. 2007). Trial counsel is not required by the Sixth Amendment to continue
shopping for a psychiatrist until a favorable opinion is obtained. Id. Further, given
the weight of psychiatric opinion on Forsyth’s competence, Dr. Logan’s testimony is
unlikely to have swayed the trial court even if he had testified at the competency
hearing. In light of trial counsel’s own observations and the above-described expert
opinions, trial counsel was not objectively unreasonable in choosing not to argue that
Forsyth’s initial delusions rendered him incompetent to stand trial. Accordingly, the
district court did not err by finding that the Iowa courts’ rulings were not unreasonable
regarding either the facts or the applicable federal law.



                                          -7-
                             B. Mental Defect Defenses

       Forsyth argues that his trial counsel was constitutionally inadequate because he
failed to reasonably investigate and present the insanity and the diminished
responsibility defenses.

       The Iowa Court of Appeals held that trial counsel’s “investigative conclusions
were consistent with the relevant expert opinions available at the time counsel made
this strategic decision [to not pursue the insanity and the diminished responsibility
defenses].” Forsyth v. Iowa, No. 03-1378, 2004 WL 1161614, at *3. Trial counsel’s
strategic decisions are “virtually unchallengeable unless they are based on deficient
investigation, in which case the ‘presumption of sound trial strategy . . . founders on
the rocks of ignorance.’” Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006)
(quoting White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005)) (omission in original).
One of trial counsel’s strategic decisions is that of “reasonably deciding when to cut
off further investigation.” Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006).

       Trial counsel had several reasons for choosing to pursue a defense of factual
innocence and not an insanity defense. First, he believed that there was sufficient
evidence to create a reasonable doubt regarding Forsyth’s guilt. The exculpatory
evidence included a blood stain that did not match any victim or Forsyth, a medical
examiner’s testimony that the physical evidence suggested that one person could not
have committed all the murders, a tape-recorded conversation in which Mrs. Forsyth’s
boyfriend (and the father of the two non-Forsyth children who were murdered) told
his ex-wife that he had killed their children, and an initial claim by Mrs. Forsyth’s
brother, who discovered the bodies, that he had shot Forsyth and had been shot in the
leg in return. Trial counsel testified that Forsyth was adamant that he could not have
killed his family and that Forsyth did not want to utilize a defense based upon an
admission that he had committed the murders but had been insane at the time.
Additionally, none of the mental health professionals who had interviewed Forsyth

                                         -8-
expressed an opinion that Forsyth was legally insane at the time of the murders. See
Marcrum, 509 F.3d at 511 (“The very fact that [the psychologist’s] interpretation of
the record was consistent with [the state psychiatrist’s] would have given [trial
counsel] every reason to believe that both experts were making a correct analysis of
the medical records.”). Trial counsel spoke with persons who knew Forsyth well,
none of whom believed Forsyth had suffered from a mental disease or defect prior to
the murders. Further, the MMPI II test completed shortly before the murders did not
indicate that Forsyth suffered from any major psychological disorders. Finally, trial
counsel had had many years of experience in the area of criminal defense and was
aware that insanity defenses are rarely successful in the best of circumstances, and that
such a defense in Forsyth’s case would not be, given the existing expert opinion on
the issue. Trial counsel noted that pursuing alternative defenses claiming that, “I did
not do it, but if I did I was insane,” can have the disadvantage of appearing to concede
the factual innocence claim.

      Forsyth argues that trial counsel’s failure to investigate the insanity and the
diminished responsibility defenses rendered his choice not to raise these defenses
uninformed and perforce unreasonable. We have held, however, that “[w]here counsel
has obtained the assistance of a qualified expert on the issue of the defendant’s sanity
and nothing has happened that should have alerted counsel to any reason why the
expert’s advice was inadequate, counsel has no obligation to shop for a better
opinion.” Marcrum, 509 F.3d at 511. Forsyth asserts that the experts who examined
him lacked the requisite training to assist him because they were clinical, not forensic,
mental health experts. Forsyth presents neither a factual basis for differentiating
categorically between clinical and forensic psychiatrists or psychologists nor any legal
authority for this proposition.

       The defense of diminished responsibility permits the defendant to offer proof
that he lacked the mental capacity to form the specific intent to commit the crime
charged. See Iowa v. Gramenz, 126 N.W.2d 285, 287-90 (Iowa 1964). Trial counsel

                                          -9-
was not ineffective in investigating this defense, because even Dr. Logan, Forsyth’s
expert on appeal, stated that Forsyth did not lack that capacity.

       In light of the experts’ opinions and the results of the May 2003, MMPI II test,
there is no basis to hold that trial counsel’s investigation of possible mental illness
defenses was constitutionally inadequate. Accordingly, trial counsel was not
objectively unreasonable in not pursuing further inquiry into possible mental defect
defenses. Forsyth has not overcome the presumption of adequacy and reasonableness
applied to trial counsel’s strategic decisions, and the district court thus did not err in
finding that the state court’s decision was not unreasonable regarding either the facts
or the federal law.

       Because Forsyth has alleged no grounds in support of his claim of ineffective
assistance of his appellate counsel beyond those alleged against his trial counsel, that
claim likewise fails.

      The judgment is affirmed.
                      ______________________________




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