In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1250

Robert Todd,

Petitioner-Appellant,

v.

James Schomig, Warden, Pontiac Correctional
Center,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-428-GPM--G. Patrick Murphy, Chief Judge.


Argued October 9, 2001--Decided March 14, 2002


  Before Flaum, Chief Judge, and Evans, and
Williams, Circuit Judges.

  Williams, Circuit Judge. Petitioner
Robert Todd is on death row. The direct
and post-conviction challenges to his
conviction and death sentence have proven
unsuccessful. He filed a petition for a
writ of habeas corpus, which the district
court denied. Now, he appeals and asks us
to reverse the district court’s decision.
Because there is no basis upon which to
grant his petition, we affirm the
judgment of the district court.

I.   BACKGROUND

  On June 1, 1998, Todd filed a petition
for a writ of habeas corpus, challenging
the constitutionality of his custody in
the Pontiac Correctional Center, where he
is on death row for his state court
conviction of first-degree murder. Our
review of his challenge to his conviction
and death sentence is controlled by the
restrictive standards set forth in the
Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"). See 28 U.S.C. sec.
2254; see also Lindh v. Murphy, 521 U.S.
320 (1997) (applying the statute to
petitions filed after April 24, 1996).
Pursuant to the AEDPA, state court
factual findings that are reasonably
based on the record are presumed correct,
and the petitioner has the burden of
rebutting that presumption by clear and
convincing evidence. See 28 U.S.C. sec.
2254(e)(1); see also Cossel v. Miller,
229 F.3d 649, 651 (7th Cir. 2000). The
following summary of the facts is derived
from the state court opinions, and is
supplemented where appropriate from the
appellate record. See Whitehead v. Cowan,
263 F.3d 708 (7th Cir. 2001).

A.   The Facts

  On July 11, 1989, Sandra Shelton entered
the Sports Page Bar & Grill in Carlyle,
Illinois. Shortly thereafter, Robert Todd
entered the bar, sat next to her, ordered
a draft beer, and started a conversation.
They left together at approximately half-
past midnight and went to the Main Street
Saloon in Beckemeyer, where they danced,
had a couple drinks, and left.

  They then went to Shelton’s home.
According to the testimony of jailhouse
informant, Scott Nielson, Todd described
the events at Shelton’s home as follows:
Shelton put on a Bob Seger tape, and they
sat and drank. Todd tried to "make moves"
on Shelton, but she resisted. A bit
later, Todd tried again, but Shelton told
him "no" and shoved him. Todd slapped
Shelton a couple times, but he then
blacked out and next remembered waking up
in the morning at a convenience store.

  Shelton’s 14-year-old daughter
discovered her mother’s body at eleven
the next morning. In the home, the stove
burners were running, creating a strong
odor of natural gas; several candles were
still burning; and a container of
vegetable oil was on the floor in the
living room.

  Shelton’s body was nude except for a
green blouse tied around her neck,
intertwined with a necklace and two shoe
strings that were tied to her right
wrist. Shelton’s body appeared to have a
shiny, oily substance on it, and small
red droplets of wax were spread over her
body from the shoulders down.

  A red candle and a Miller Lite beer can
were underneath a blanket that partially
covered Shelton’s left foot. Another can
of Miller Lite was on an ashtray table,
and a six-pack of Miller Lite with two
cans missing was in the refrigerator./1
  Pathologist Dr. Steven Nuernberger
performed an autopsy and found a linear
depression on Shelton’s neck, where the
blouse had been. He noticed hemorrhaging
to the muscles on both sides of the neck,
indicating that Shelton’s trachea had
been crushed. He listed strangulation as
the primary cause of death.

  He noticed five stab wounds down the
left side of Shelton’s body. Four
penetrated her chest wall. There was a
small amount of blood in Shelton’s chest
cavity and abdomen, which indicated that
she was stabbed at the time of her death
or shortly thereafter. In his opinion,
the stab wounds were caused by a sharp
knife, and were to "mak[e] sure the
victim was dead."

  He also observed bruising and swelling
around Shelton’s left eye, left lower
lip, and cheek bone. He noted hemorrhages
that indicated blunt trauma to her head.
In his opinion, the head injuries were
caused by at least five separate blows to
her head. Dr. Nuernberger observed
bruises or contusions on Shelton’s wrist,
right shoulder and breast. The wrist
bruise was consistent with someone
tightly grabbing the wrist, and the chest
bruise indicated a blow to the chest.

  Dr. Nuernberger believed that Shelton
was standing when she was suffocated. He
also believed that the wax droplets were
applied after death. Although Dr.
Nuernberger found no identifiable
presence of sperm and no evidence of
trauma to the vagina or rectum, in his
opinion, these facts did not rule out the
possibility of sexual assault.

  Forensic scientist David Peck examined
the tennis shoes Todd was wearing at the
time of his arrest with the shoe prints
collected at Shelton’s home. He concluded
that two prints were made by Todd’s left
shoe and one was made by his right shoe.
He also compared inked bare footprints of
Todd’s feet with footprints at Shelton’s
home, concluding that one of the latent
footprints at Shelton’s home was Todd’s.
He also concluded that Todd’s fingerprint
was present on one of the doorknobs in
Shelton’s home.

  Forensic scientist Cheryl Cherry
compared the wax droplets on Shelton’s
body with wax droplets from Todd’s
bathtub, and she concluded that they were
similar and could have originated from
the same candle. Forensic microscopist
Eleanor Gillespie compared the standards
of Todd’s hair to the hairs from
Shelton’s body, and she concluded that
there was no hair transfer between Todd
and Shelton.

  After a bench trial, Todd was convicted
of first-degree murder and attempted
aggravated sexual assault. The trial
court concluded that the murder was
accompanied by brutal and heinous
behavior indicative of wanton cruelty. At
the first stage of the sentencing, the
sentencing court found Todd eligible for
the death penalty because the murder was
committed in the course of a robbery and
while attempting to commit aggravated
criminal sexual assault.

  At the second stage of the sentencing,
the state presented its case in favor of
the imposition of the death penalty.
Joyce Ely testified that Todd had worked
for a facility for the mentally retarded,
but was fired for two incidents with
patients--one in which he put a yelling
and aggressive patient in an arm-lock and
another in which he attempted to prevent
an upset patient from leaving the area by
pushing him back with his fingers. Todd’s
ex-wife, Shelly Steele, testified that he
had a bad temper and was occasionally
physically violent. She also testified
that he liked to tie her up during sex,
enjoyed having pain inflicted on himself
during sex, and always had candles or
incense burning during sex. She also
testified that she was fired from her job
because Todd showed up, started an
argument with her, and threatened to kill
another employee if he did not get out of
his way.

  Then Todd presented mitigation evidence.
Mitigation Social Worker Arlene Peters
recounted Todd’s background, including
his alcoholism, drug use, suicide
attempts, physical abuse, and troubled
childhood. Her investigation, however,
was limited--principally to Todd’s
immediate family. Todd’s reverend,
fiancee’s parents, and family also
testified, essentially to his good
character, and helped to corroborate the
mitigation social worker’s report.
  The sentencing court determined that
only one statutory mitigating factor had
been presented--lack of significant prior
criminal history--in addition to evidence
of nonstatutory mitigating factors. The
court determined that the aggravating
factors outweighed the mitigating factors
and sentenced Todd to death.

B.   District Court Proceeding

  Following unsuccessful direct appeals
and post-conviction proceedings, see
People v. Todd, 607 N.E.2d 1189 (Ill.
1992); Todd v. Illinois, 510 U.S. 944
(1993) (direct); People v. Todd, 687
N.E.2d 998 (Ill. 1997); Todd v. Illinois,
525 U.S. 828 (1998) (post-conviction),
Todd filed a petition for a writ of
habeas corpus in the United States
District Court for the Southern District
of Illinois. He raised approximately
twenty-six grounds for relief, not
counting the various separate factual
allegations that supported his primary
arguments. In an extensive and well-
reasoned opinion, the district court
rejected all of Todd’s reasons for
granting a writ and denied his petition.
Todd now appeals.
II. ANALYSIS

  A writ of habeas corpus may be granted
only if the state court’s adjudication of
the claim (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 of the United States;
or (2) resulted in a decision that was
based on an unreasonable determination of
the facts in light of the evidence
presented in the State court proceeding.
See id. at sec. 2254(d); see also
Williams v. Taylor, 529 U.S. 362 (2000);
Boss v. Pierce, 263 F.3d 734 (7th Cir.
2001). While we carefully scrutinize the
issues presented in capital cases, see
Zant v. Stephens, 462 U.S. 862, 884
(1983), as in all cases, our review of
issues of law is de novo and of fact, for
clear error. See, e.g., Dixon v. Snyder,
266 F.3d 693, 700 (7th Cir. 2001).

A.   Procedural Default

  To begin, we must determine which of
Todd’s claims are properly before this
court. In order to raise a constitutional
challenge to a state court conviction and
sentence in a federal habeas proceeding,
the petitioner must have fully and
adequately presented the challenge to the
state courts. See O’Sullivan v. Boerckel,
526 U.S. 838, 844 (1999); Chambers v.
McCaughtry, 264 F.3d 732, 737-38 (7th
Cir. 2001).

  Many of Todd’s claims were not raised in
his direct or post-conviction proceedings
before the state courts, and therefore
are defaulted./2 Procedural default may
be excused for cause and prejudice or if
it will result in a fundamental
miscarriage of justice, see Coleman v.
Thompson, 501 U.S. 722, 750 (1991);
Wainwright v. Sykes, 433 U.S. 72, 87
(1977), but Todd has not argued that any
of these reasons prevented him from
raising his claims in the state courts.
Therefore, we do not consider his
defaulted claims.

B.  Brady Violation
  Todd argues that the state suppressed
material impeachment evidence of an
agreement with jailhouse informant
Nielson in exchange for his testimony at
trial. He argues that Nielson’s testimony
regarding what happened at Shelton’s home
was "the lynchpin of the State’s case."
Therefore, he argues, the state violated
the Fourteenth Amendment by suppressing
the agreement. See Brady v. Maryland, 373
U.S. 83 (1963). We reject this claim on
the merits, rather than addressing the
somewhat more difficult question of
whether it is procedurally defaulted. See
28 U.S.C. sec. 2254(b)(2).

  Todd cannot prove an agreement existed.
He argues that at the very least Nielson
had an "expectation" of benefit. But what
one party might expect from another does
not amount to an agreement between them.
And Todd does not argue that the state
knew of Nielson’s expectation or that he
could not have uncovered that expectation
with reasonable diligence. This brings us
back to the agreement, which Todd cannot
show existed. Without an agreement, no
evidence was suppressed, and the state’s
conduct, not disclosing something it did
not have, cannot be considered a Brady
violation.

  But Todd claims that he should have been
granted a hearing in the district court
to establish evidence of an agreement.
That would have been little help to him
in advancing his claim. Nielson was
hardly the lynchpin that Todd
characterizes him as. Nielson merely told
the court what other evidence had already
revealed. Forensic evidence placed Todd
in Shelton’s home. Autopsy evidence of
Shelton’s body showed the violent and
forceful nature of the murder. And, that
Nielson knew of particular non-public,
corroborated facts (e.g., the Bob Seger
tape)/3 made his testimony more
reliable and the value of any impeachment
evidence minimal.

  The possible existence of an agreement
with this witness does not undermine our
confidence in the conviction. Without any
means of establishing a reasonable
probability of a different outcome, the
evidence cannot be considered material,
or its suppression a Brady violation.
See, e.g., Kyles v. Whitley, 514 U.S.
419, 434 (1995).

C.   Unanimous/One-Juror Rule

  The state trial court twice informed
Todd that "all twelve jurors would have
to unanimously agree on [the] mitigating
factors to prevent imposition of the
death penalty." Todd argues that he
waived his right to a jury sentencing
because the court’s statement led him to
believe that it was easier to convince
one judge rather than all twelve jurors
not to impose the death penalty.
Furthermore, he asserts that he was not
informed of Illinois’ "one-juror" rule;
effectively the flip-side of the
requirement of a unanimous verdict, the
one-juror rule is simply that the vote of
one juror may preclude the death penalty.
See, e.g., People v. Nitz, 572 N.E.2d
895, 916 (Ill. App. Ct. 1991). Todd
argues that not knowing of this rule,
combined with the trial court’s false
statement of the standard, made his
waiver of his right to a jury at
sentencing involuntary, violating the
Seventh Amendment.

  Todd’s claim would have significant
force, if it were in fact true. The
record, however, does not bear out his
version of the facts. In a thorough
waiver hearing, the trial court informed
Todd that any statutory eligibility
factor must be unanimous, and that the
vote for the death penalty must be
unanimous. And although Todd was not
informed of the one-juror rule
specifically, he was informed that all
the jurors would have to agree on the
death sentence, which is effectively the
same thing. We reject his argument, and
find that the Illinois Supreme Court’s
rejection of it was reasonable. See Todd,
607 N.E.2d at 1196.

D.   Ineffective Assistance of Counsel

  Todd argues that his trial counsel was
constitutionally ineffective because he
failed to (1) investigate adequately,
obtain, or present hair transfer
evidence; (2) file Todd’s request to
withdraw his jury waiver; and (3)
investigate and present additional
mitigation evidence./4 In addition,
healleges that defense counsel pressured
him to waive his right to a jury trial.
All this conduct, he argues, prejudiced
his case and resulted in his conviction
and death sentence, violating the Sixth
Amendment.

  To show ineffective assistance of
counsel, Todd must demonstrate that
counsel’s performance fell below an
objective standard of reasonableness, and
he was prejudiced as a result of that
performance. See Strickland v.
Washington, 466 U.S. 668, 687-90 (1984);
United States v. Hodges, 259 F.3d 655,
658 (7th Cir. 2001). We apply a highly
deferential presumption in favor of the
reasonable exercise of professional
judgment. See Strickland, 466 U.S. at
689.

  The Supreme Court has often stated that
the Constitution does not guarantee
criminal defendants a perfect trial, only
a "fair" one. See Delaware v. Van
Arsdall, 475 U.S. 673, 681 (1986). That
statement is apt here. Todd’s counsel was
not perfect, and with the benefit of
hindsight, it is easy to indulge the
temptation to question his decisions
during trial and sentencing. But his
performance was sufficient to ensure a
fair adjudication of Todd’s guilt and
sentence.

  First, defense counsel elicited
testimony from Illinois State Police
Forensic Scientist Eleanor Gillespie that
none of the hairs found at the scene were
Todd’s and that there was no transfer of
hair between Todd and Shelton. Moreover,
he argued that this evidence was
inconsistent with the type of struggle
the state alleged. He could have done
more, granted. But we do not measure
deficiency by how much more defense
counsel could have done, but by the
adequacy of what counsel did do.
Employing an objective standard of
reasonableness, defense counsel’s
performance in this regard was reasonable
and adequate.

  Second, we have no basis upon which to
conclude that Todd ever asked his defense
counsel to file a motion to withdraw his
jury waiver. In a post-conviction
deposition, his defense counsel denied
any such request. And even extending this
assumption to Todd, we have no basis upon
which to conclude that the trial court
would have allowed Todd to withdraw his
plea. Todd has provided no credible
evidence.

  Third, regarding mitigation evidence,
defense counsel brought forward Todd’s
family,/5 reverend, and a mitigation
social worker. Todd asserts that the
mitigation social worker’s report was not
very thorough, and was largely
unsubstantiated. The report merely
summarized Todd’s life, focusing on his
troubled childhood, suicide attempts,
alcohol and drug abuse, and some physical
abuse he suffered.

  Todd now claims that trial counsel
should have developed and presented
additional mitigation evidence that was
available. At his post-conviction
hearing, Todd brought forward much more
compelling mitigation evidence. For
example, the clinical psychologist who
testified at the post-conviction hearing
conducted a more thorough investigation,
and uncovered additional physical and
sexual abuse. At his post-conviction
hearing Todd introduced expert testimony,
along with additional, substantiated
evidence of low intelligence (an IQ of
86), physical and sexual abuse, and
emotional and psychological damage
(possibly amounting to an additional
statutory mitigating factor).

  However, at trial, defense counsel
apparently decided not to present
psychiatric evidence or pursue it further
because he believed it would only expose
Todd’s propensity for violence. He based
that decision in part on a psychiatric
evaluation that was performed before
trial. But Todd’s propensity for violence
was already front and center in his
sentencing hearing. His ex-wife testified
about his violent propensities and of her
fear of his violent nature--which
prompted her to acquire a Doberman
Pinscher for her own protection. The
nursing home supervisor testified that
Todd was fired because of his unnecessary
use of force. Furthermore, the trial
court’s conclusion that Shelton’s murder
was accompanied by brutal and heinous
behavior indicative of wanton cruelty
should have put defense counsel on notice
that the cat was out of the bag.

  While we believe counsel’s performance
was less than stellar, the Illinois
Supreme Court was not persuaded. See
Todd, 687 N.E.2d 998, 1008-11 (Ill.
1997). It believed that Todd’s defense
counsel made a strategic decision after
investigation, to which deference was
due. Also, it did not believe that the
additional mitigation evidence would have
affected the sentencing judge’s decision
to impose the death penalty, given the
circumstances. See id. at 1011. Although
we are less convinced, we cannot say that
the Illinois Supreme Court’s decision was
unreasonable in light of the very damning
aggravating circumstances in this case.

  Finally, we have no basis upon which to
conclude that Todd’s counsel "pressured"
him to waive his right to a jury trial.
Indeed, the credible evidence before us
is solidly to the contrary, that his
waiver was informed, knowing and
voluntary. Most convincingly, the trial
court conducted a thorough hearing on the
waiver, after which it concluded that his
waiver was knowing and voluntary.

  Because we have addressed all of Todd’s
claims of deficient and prejudicial
performance and find them to be
meritless, we reject Todd’s claim of
ineffective assistance of counsel.
Overall, we find reasonable the Illinois
Supreme Court’s decision. See Todd, 687
N.E.2d at 1003-13.
E. Sufficiency of the Evidence

  Todd argues that the state failed to
prove beyond a reasonable doubt each and
every element of his two statutory
eligibility factors for the death
penalty, violating both the Eighth and
the Fourteenth Amendments./6 See In re
Winship, 397 U.S. 358 (1970); Gregg v.
Georgia, 428 U.S. 153 (1976). Both
arguments are meritless.


  1.   Robbery

  The state alleged that Todd took
Shelton’s purse. Illinois defines robbery
as the taking of property from the person
or presence of another by the use of
force or by threatening the imminent use
of force. See 720 Ill. Comp. Stat. 5/18-
1(a). If Todd did in fact take Shelton’s
purse, then the conclusion that the
taking was by the use of force and from
her presence follows ineluctably on these
facts. See, e.g., People v. Blake, 579
N.E.2d 861 (Ill. 1991) (upholding armed
robbery conviction, despite the fact that
victims were separated, by one level of
the house, from the property taken and
had not been in contact with those items
for some six or seven hours during the
night); People v. Carreon, 587 N.E.2d 532
(Ill. App. Ct. 1992) (finding that dead
person has "presence").

  Todd focuses his argument on the
conclusion that he took the purse. He
challenges the trial court’s resolution
of the question of whether the victim’s
purse was brought inside her home or left
in her car, but does not dispute the
determination that Shelton brought the
purse home. Todd argues that if the purse
was in Shelton’s open car, which he
believes is the only supportable
conclusion, anyone could have taken it.
Why the particular location of the purse
at the home matters at all is not clear
to us, as anyone could have taken it from
her open home as well.

  In either place, however, Todd is the
person most likely to have taken the
purse. Todd was seen with Shelton the
night she had her purse. Todd was in
Shelton’s home that night as well. Todd
murdered Shelton. Then, Shelton’s family
discovered that her purse was missing. It
was found later in a cornfield. Along the
way a number of things could have
happened to the purse, but on these
facts, a rational conclusion beyond a
reasonable doubt is that Todd took the
purse. We therefore reject his argument,
and find the Illinois Supreme Court’s
decision reasonable. See Todd, 607 N.E.2d
at 1196-97.


  2. Attempted Aggravated Criminal Sexual
Assault

  Illinois defines aggravated criminal
sexual assault as (1) the commission of
an act of sexual penetration (a) by the
use of force or threat of force or (b)
with knowledge that the victim was unable
to understand the nature of the act or
was unable to give knowing consent, and
(2) during the commission of the offense,
any one of ten aggravating circumstances
is present, e.g., the defendant
displayed, threatened to use, or used a
dangerous weapon; caused bodily harm to
the victim; threatened or endangered the
life of the victim; or perpetrated the
offense during the course of the
commission or attempted commission of any
other felony. See 720 Ill. Comp. Stat.
5/12-13(a)(1)-(2), 5/12-14(a)(1)-(10). An
attempt is defined as the doing of any
act that constitutes a substantial step
toward the commission of a specific
offense with the intent to commit that
offense. See 720 Ill. Comp. Stat. 5/8-4.

  Todd argues that "[t]here was no
evidence of an aggravator charged or
proved." But, in Count IV of the
indictment against Todd, which alleged
attempted aggravated sexual assault, the
state specifically charged that he
"caused bodily harm to Sandy Shelton by
striking and choking her." As to the
evidence, the violent and statutorily
aggravated nature of this murder is
overwhelming. Indeed, four applicable ag
gravators are present in this case. There
is evidence that Todd used a sharp knife,
which is a dangerous weapon, to stab
Shelton; caused significant bodily harm
to Shelton; endangered Shelton’s life;
and perpetrated the offense during the
course of both a murder and a robbery,
which are both felonies.

  That is all beside the point, however.
Todd’s conviction was for his attempt of
the offense, not for his completion of
it. Therefore, the state was not required
to show any aggravating factor, but only
an act that constituted a substantial
step toward the commission of the offense
and an intent to commit an aggravating
factor (along with the other elements of
the offense). See, e.g., People v.
Childress, 746 N.E.2d 783 (Ill. App. Ct.
2001). Todd’s use of force in this
circumstance could have qualified as a
substantial step, and the state would
have only needed to show intent to commit
the other elements, including an
aggravating factor. We therefore reject
his argument, and find the Illinois
Supreme Court’s decision reasonable. See
Todd, 607 N.E.2d at 1197.

F.   Evidentiary Rulings

  Todd makes two constitutional arguments
regarding inadmissible hearsay and
irrelevant evidence, based on the court’s
admission and consideration of that
evidence at sentencing. We reject them
both.

  1.   Hearsay

  Todd argues that the sentencing court
admitted hearsay, which violated the
Sixth Amendment. In addition, he argues
that the sentencing court’s reliance on
hearsay evidence introduced intolerable
uncertainty and unreliability into the
sentencing process and violated the
Eighth and Fourteenth Amendments. Joyce
Ely, the individual who testified to
Todd’s termination based on two physical
confrontations involving patients, did
not personally witness his behavior, and
in fact was not employed with the nursing
home at the time of Todd’s termination.
Therefore, her testimony, he argues, was
inadmissable and unreliable hearsay.

  However, sentencing is different from
trial, and the constitutional limitations
placed on the latter do not apply to the
former. Hearsay may be admitted at
sentencing, even in death penalty cases,
without violating the Constitution. See
Roberts v. United States, 445 U.S. 552,
556 (1980); Williams v. New York, 337
U.S. 241, 251 (1949). To implicate
constitutional concerns, the evidence
must amount to "misinformation." See
United States v. Tucker, 404 U.S. 443,
446-47 (1972); Townsend v. Burke, 334
U.S. 736, 740-41 (1948). So long as the
evidence is reliable and the defendant is
provided notice and an opportunity to
challenge its reliability, no
constitutional violation results from the
admission of hearsay at sentencing.
  Todd cannot show any constitutional
infirmity in this case. The witness
testified to statements contained in
Todd’s employment records, which with
marginally additional foundation could
have qualified under the business records
exception to the hearsay rule. Fed. R.
Evid. 803(6). Ely relied on Todd’s
employment records to describe the
incidents that prompted his termination.
But Todd failed to refute her testimony,
and to challenge the veracity of the
records. He only introduced the
possibility of bias in one of his
supervisors. We believe that this
evidence satisfied the requirements of
reliability and procedural due process
and reject his argument, and find that
the Illinois Supreme Court’s decision
reasonable. See Todd, 607 N.E.2d at 1197.


  2.   Relevance

  Todd argues that the trial court’s
consideration of his prior sexual conduct
in imposing the death penalty violated
the Eighth Amendment, because these
characteristics made no measurable
contribution to acceptable goals of
punishment--retribution or deterrence.

  Not all evidence of "character"
qualifies as permissible aggravation
evidence to be considered in the balance
for imposing the death penalty. See Zant,
462 U.S. at 885. The Supreme Court has
very clearly stated that aggravation
evidence is of a wholly different
character than mitigation evidence, and
is subject to more restrictive
constitutional limitations. See, e.g.,
McCleskey v. Kemp, 481 U.S. 279, 304
(1987). For example, characteristics such
as race, religion, or political
affiliation are constitutionally
impermissible and totally irrelevant to
the sentencing process and the question
of whether a defendant should receive the
death penalty. See Zant, 462 U.S. at 885.
To be sure, these three particular
characteristics are plainly inimical to
the "individualized" determination upon
which the imposition of the death penalty
must rest.

  But easy examples aside, the Supreme
Court, in Dawson v. Delaware, supra,
carefully examined the type of evidence
that may be properly considered relevant
character evidence. In Dawson, the state
introduced evidence of the defendant’s
membership in the Aryan Brotherhood--a
group that held racist, white-supremacist
beliefs--in Dawson’s death penalty
sentencing hearing. The Supreme Court
held that this evidence, in and of
itself, had no relevance to any issue in
the sentencing hearing. The evidence was
unrelated to the crime, e.g., showing
motive, see Barclay v. Florida, 463 U.S.
939 (1983) (plurality opinion), and did
not contribute to establishing any
aggravating circumstances. Dawson, 503
U.S. 166-67. It was merely evidence of
"abstract beliefs," offered to show moral
reprehensibility. Id. at 167. In
addition, the Supreme Court held that the
evidence was not admissible to rebut
Dawson’s mitigating evidence of his
"good" character. The Supreme Court
stated that his membership in a racist
organization was simply not "bad"
character evidence. Id. at 168.
   Although the murder in this case
involved various sexual fetishes, the
state has not demonstrated that his
fetishes motivated or even contributed to
the murder. Moreover, the state has
offered no connection between these
activities and an aggravating
circumstance or other questions involved
in the death penalty sentencing.
Thisevidence seems geared only to showing
Todd’s moral reprehensibleness.

  While we believe that the admission of
this evidence may have amounted to
constitutional error, it was harmless.
The statutory aggravating factors of
robbery, attempted aggravated sexual
assault, combined with "brutal and
heinous behavior indicative of wanton
cruelty," which the sentencing court
described as "just for the fun of
killing," were the factors the sentencing
court identified and emphasized. It never
mentioned Todd’s past sexual conduct.

  The Illinois Supreme Court never
addressed these issues, but summarily
rejected Todd’s argument, finding only
that the evidence was "reliable and
relevant regarding [his] character."
Though we have trouble finding this
determination reasonable, we have found
any constitutional error harmless.

G.   Mitigating Evidence
  Todd argues that the sentencing court
refused to consider and give effect to
all the mitigating factors he presented,
violating the Eighth Amendment. See
Eddings v. Oklahoma, 455 U.S. 104 (1982);
Lockett v. Ohio, 438 U.S. 586 (1978);
Woodson v. North Carolina, 428 U.S. 280
(1976). He asserts that the sentencing
court limited its consideration to the
statutory mitigating factors available to
him./7 We have reviewed the sentencing
transcript and although we believe that
the record is ambiguous, that conclusion
necessarily requires that we defer to the
Illinois Supreme Court’s conclusion that
the trial court "indicated" that it
considered the nonstatutory mitigating
factors Todd presented. See Todd, 607
N.E.2d at 1194; see also id. at 1198
("[T]he record indicates that Judge Huber
did properly weigh the evidence which the
defense presented in mitigation,
including evidence of nonstatutory
mitigating factors.").

  In the sentencing court’s own words, it
considered only one sentencing factor--it
stated the issue was "whether or not the
mittigating [sic] factor has sufficiently
precluded the imposition of the death
penalty" and that it believed "that the
aggravating factors outweigh the
mittigating [sic] factor considering the
evidence in this case." The only "factor"
the sentencing court identified was the
statutory factor of Todd’s lack of
significant prior criminal activity.

  However, the sentencing court did
indicate that "those other nonstatutory
factors do have [sic] a bearing on the
Courts [sic] ability to weigh the issues
I raised previously," which at least
shows that the sentencing court was aware
of nonstatutory mitigating factors. But
what it meant by what it said, that the
nonstatutory mitigating factors have a
bearing on its ability to weigh the
issues, is unclear. Nonstatutory
mitigating factors were part of the
issues it was required to consider and
weigh, not merely a side-concern that
bears on that question.

  The sentencing court never discussed the
nonstatutory mitigating factors, or the
weight that it attached to them, or why
the total set of mitigating factors were
outweighed by the aggravating factors.
Although we would have expected a more
thorough explanation, leaving no doubt
about the rationale, that is not our
direct concern in this case. We may only
exercise our authority if the state
courts’ adjudications of the claim were
unreasonable. And with that high
standard, we have no choice but to defer
to the Illinois Supreme Court’s
conclusion that the sentencing court did
consider all the mitigation evidence Todd
presented.

III.   CONCLUSION

  For the foregoing reasons, the judgment
of the district court is Affirmed.

FOOTNOTES

/1 Approximately one month after Shelton’s body was
found, her family discovered that her purse was
missing. On March 22, 1990, another seven months
later, the purse was found in a cornfield some
distance away.

/2 He argues that (1) the state secured an indict-
ment against him with perjured testimony, and the
indictment failed to provide him with adequate
notice of the basis for the charge of attempted
aggravated criminal sexual assault, violating the
Fourteenth Amendment; (2) the trial court improp-
erly admitted evidence of other crimes, where the
probative value of the evidence was greatly
outweighed by its prejudicial effect, violating
the Fourteenth Amendment; (3) the trial court was
not an impartial tribunal, violating the Sixth
and Fourteenth Amendments; and (4) the state’s
delay in the execution of his death sentence is
cruel and unusual punishment, violating the
Eighth Amendment.

/3 Shelton’s family returned to her home one month
after the murder, and found a Bob Seger tape in
the tape deck.

/4 Several of Todd’s allegations of ineffective
assistance were not presented to the state
courts, and thus are procedurally defaulted.
Although we do not discuss each of these proce-
durally defaulted claims in this opinion, we have
considered them and conclude that they are with-
out merit.

/5 We use this term rather broadly, including in it
Todd’s fiancee’s parents.

/6 Illinois lists its aggravating factors within the
first-degree murder statute itself. 720 Ill.
Comp. Stat. 5/9-1(b) (West 2002). In this case,
the trial court relied upon the felony-murder
factor, which allows for the imposition of the
death penalty if "the murdered individual was
killed in the course of another felony." 720 Ill.
Comp. Stat. 5/9-1(b)(6). The trial court found
that this murder was committed in the course of
a robbery and attempted aggravated sexual as-
sault, which qualify as predicate felonies. 720
Ill. Comp. Stat. 5/9-1(b)(6)(c).

/7 There is a non-exhaustive list of mitigating
factors a trial court may consider when choosing
whether to impose the death penalty. 720 Ill.
Comp. Stat. 5/9-1(c). For example, the defen-
dant’s lack of prior criminal history, whether
the defendant was under the influence of extreme
mental or emotional disturbance when the murder
was committed, or whether the defendant was
personally present at the time the murder was
committed are relevant mitigating factors. 720
Ill. Comp. Stat. 5/9-1(c)(1),(2), and (5).
