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

No. 03-1968
BILL J. BENEFIEL,
                                            Petitioner-Appellant,
                                 v.

CECIL DAVIS,
                                            Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Terre Haute Division.
              No. 00 C 057—Richard L. Young, Judge.
                          ____________
  ARGUED DECEMBER 4, 2003—DECIDED JANUARY 30, 2004
                   ____________



  Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
   EVANS, Circuit Judge. In 1988, Bill J. Benefiel was
sentenced to death for murdering Delores Wells in Terre
Haute, Indiana, in 1987. His conviction for the murder, as
well as for criminal confinement, rape, and criminal deviant
conduct, and his death sentence have been upheld by the
Indiana Supreme Court both on direct appeal, Benefiel v.
Indiana, 578 N.E.2d 338 (Ind. 1991), and on appeal from
the denial of a postconviction motion, Benefiel v. Indiana,
716 N.E.2d 906 (Ind. 1999). He is now before us appealing
the district court’s denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. We start with the
facts, which curl the stomach and numb the mind.
2                                              No. 03-1968

  The story of this gruesome crime begins with another
victim, Alicia Elmore. On October 10, 1986, at approxi-
mately 7:30 in the evening, Elmore, who was then 17 years
old, walked to a gas station two blocks from her home in
Terre Haute, Indiana, to purchase soft drinks for her
mother and brother. Her family did not hear from her again
for 4 months.
  During those months, Benefiel, who had abducted Elmore
off the street, tortured and raped her repeatedly, 64 times
before she stopped counting. At various times he stuffed
clothing or toilet paper in her mouth and put duct tape over
her eyes and mouth. For the first 2 months her eyes were
glued shut. He fastened her to a bed, naked, with a chain
around her neck. At times he handcuffed her to the side
railing of the bed and tied her feet together with a rope.
When she screamed he slapped her and cut her with a
knife. He cut off one of her fingernails. He cut off some of
her hair and told her he was putting it in a scrapbook with
hair samples from other women he had raped. For the first
months she was fed only baked potatoes and water and was
not allowed to use the bathroom without his permission. At
one point he stuck a gun in her vagina and forced her to
have anal intercourse.
  She was convinced escape was impossible because of
his dogs, which she could hear from inside the house. In
addition, of course, she was terrorized. Benefiel asked her
whether she wanted to die quickly or slowly. When she said
quickly, he said her death would be long and painful. She
had no reason to doubt it.
   About 10 weeks into her captivity, Elmore saw, for the
first time, the house in which she was imprisoned. A few
weeks later she was moved to another house across the
street from the first one. In the second house, Benefiel
again chained her to the bed and had sexual intercourse
and oral sex with her. In this house she could hear the
No. 03-1968                                               3

police scanner, which Benefiel used to determine which
houses he could burglarize.
  About a month later, in January 1987, Elmore heard
noises which indicated to her that someone else was in
the house. It turned out to be Delores Wells. Elmore first
saw Wells lying naked and handcuffed on a bed. She had
tape over her eyes and paper towels stuffed in her mouth,
which was then taped over. On February 4, while Elmore
watched, Benefiel began beating Wells, first with his fist
and then with an electrical cord. Another time, he cut
Wells’s hair and cut off her finger. He also told her she
would die slowly.
  On February 7 Benefiel left the house, and when he re-
turned he was muddy from the waist down. He told Elmore
that he had been digging a grave which was big enough for
two people—she assumed for Wells and her. That day,
Benefiel also made Elmore watch as he put super glue in
Wells’s nose and pinched it together. He then put toilet
paper in her mouth and taped it shut. Wells began squirm-
ing, trying to breathe.
  A little later Benefiel chained Elmore to her bed and left
the house. When he returned about 2 hours later he told
Elmore that he had killed Wells by tying her arms and
legs to two separate trees. He then wrapped duct tape
around her head until she died. To make sure she was dead
he “popped” her neck. Then he buried her.
  On February 11 Benefiel told Elmore that the police were
coming. He pushed her into a crawl space above the ceiling
and warned her not to make a sound. The police arrived
with a search warrant. Benefiel first told them he did not
know the person they were looking for, but a few minutes
later he told them where Elmore was. When she was found
she told the police, in Benefiel’s presence, that she was in
the house voluntarily, surely an unlikely story. Later, at a
hospital, she told the police what had happened to her.
4                                                No. 03-1968

During the search of the house the police also discovered a
mask, a post-hole digger, a rake, a shovel, a pocket knife,
.22-caliber rifle shells, and rope.
  On February 22 volunteers searching for Wells found her
body under a freshly disturbed plot of ground. An autopsy
revealed internal and external injuries to the anus and
injuries to the vagina indicating a violent rape. The cause
of her death was asphyxia. In the trash at Benefiel’s home
the police found duct tape which had hairs on it similar to
the head, eyebrow, and eyelash hairs of Wells.
  A jury trial on the many charges we mentioned earlier
resulted in a bevy of convictions. The jury recommended the
death penalty and the trial judge imposed it. As we said,
Benefiel’s conviction was upheld by the Indiana Supreme
Court. He then filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, asking the federal district
court to set aside his conviction and death sentence. The
petition was denied. In this appeal from that denial, he
contends that the stress of the trial caused him to became
incompetent to aid in his own defense. He also claims that
he was deprived of the effective assistance of counsel
because his attorney at trial and on direct appeal did not
argue that the judge’s instructions to the jury in the penalty
hearing included an unconstitutionally narrow definition of
mitigation and that, in announcing the sentence, the judge
used the same overly narrow definition. Benefiel also says
he was denied the effective assistance of trial counsel
because his attorneys failed to move to suppress testimony
of two women who said that Benefiel raped them years
earlier, testimony which the trial court relied on as aggra-
vating factors in support of the decision to impose the death
penalty.
  Because Benefiel’s petition for a writ of habeas corpus
was filed after April 24, 1996, the provisions of the Anti-
terrorism and Effective Death Penalty Act of 1996 govern
No. 03-1968                                                    5

our analysis. With respect to a claim that was adjudicated
on the merits in state court, we may not grant a writ unless
the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or was “based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d)(2). In
the latter determination, a factual issue “made by a State
court shall be presumed to be correct” and the “applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). See Williams v. Taylor, 529 U.S. 362 (2000).
  We turn first to the issue of Benefiel’s competency to aid
in his own defense. It is well-settled that a defendant may
not be tried unless he has “sufficient present ability to con-
sult with his lawyer with a reasonable degree of rational
understanding—and . . . a rational as well as factual
understanding of the proceedings against him.” Dusky v.
United States, 362 U.S. 402 (1960); see also Cooper v.
Oklahoma, 517 U.S. 348, 354 (1996).
   In Benefiel’s case, two competency hearings had been held
prior to trial. Each time, Benefiel was found to be com-
petent. The issue arose for the third time during Benefiel’s
testimony near the end of the guilt phase of the trial. As his
testimony began he was asked about his unfortunate
childhood, including sexual abuse at the hands of one of his
adoptive mother’s boyfriends. Benefiel showed reluctance to
answer the questions. He said to his attorney, “I thought
you wasn’t even going to ask me that.” The lawyer said he
did not promise not to ask and said, “We need to hear about
it . . . .” Benefiel answered, “Yeah, but they will put it in the
paper.” He also testified about refusing to go to school
because he thought everyone was laughing at him. There
are other similar instances of Benefiel’s apparent reluctance
to testify or his avoidance of situations he doesn’t like.
6                                               No. 03-1968

   Then the questioning reached the matter of Alicia Elmore.
Benefiel said, “That’s a hard one to talk about.” His testi-
mony began with his version of the story. He said he was
helping her out, letting her stay with him to avoid her
unpleasant home situation. He testified briefly about taking
her to a hospital in Vincennes. (She in fact did go to a
hospital because she was bleeding vaginally. She used the
name Mary Benefiel and did not cry out for help because
she said she was afraid Benefiel would kill someone.) Then
the judge called a recess, after which Benefiel refused to
resume the stand. This caused a bit of consternation for all
involved. The prosecutor said in this situation he was “a
little limited” as to cross-examination. The judge replied,
“That’s putting it mildly.” There was a natural concern that,
as the judge said, “he gets up and testifies to what he wants
and then refuses to answer any questions on it.” After
considerable discussion of the situation and also of what
explanation to give the jury for Benefiel’s absence from the
courtroom, it was agreed that another hearing as to
Benefiel’s competency would be held. At this mid-trial
hearing, Dr. Stephen Stewart, a clinical psychologist,
testified essentially that Benefiel was not malingering and
that he was not competent to continue with the trial. Dr.
Stewart’s view was that the trial was an extremely stressful
and traumatic experience for Benefiel, and his usual coping
skills of dissociating from what was going on around him
proved to be inadequate during his testimony. On cross-
examination, Dr. Stewart was asked whether he found it
significant that when Elmore and two other rape victims
pointed at Benefiel as their assailant, he smiled. He did; he
thought it might be expected of the perpetrator of the
crimes but not of the person who was testifying.
  One of the defense attorneys also testified regarding his
interaction with Benefiel after what he described as his
“mental breakdown.” Finally, Benefiel himself testified,
No. 03-1968                                               7

basically repeating that he could not go back into the
courtroom.
  The judge, who had been observing Benefiel for several
days at this point, most likely would draw one of two con-
clusions. The first would be that Benefiel, who, we remem-
ber, had previously twice been found competent to stand
trial, had suffered some sort of breakdown during his testi-
mony which rendered him unfit to proceed. The second
would be that Benefiel was trying to have the best of both
worlds. He could testify about his pathetic upbringing and
show the jury, by his reluctance to talk about it, how
painful it was, but at the same time avoid going into detail
about Elmore or Wells. And perhaps most importantly, he
could avoid cross-examination.
  The trial judge knew manipulation when he saw it. He
said he believed Benefiel could make a decision to go into
the courtroom and testify or not. In other words, he did not
think Benefiel was unable to enter the courtroom but was
choosing not to. The judge continued:
    The fact that he chooses not to be in there at this
    particular stage makes sense logically from some
    standpoints. For one thing, he was yet to face cross-
    examination in his testimony, and two, he had really
    not gotten to the parts of the story which could work to
    his disadvantage, this is how [he] portrayed his back-
    ground which would create some sympathy, and we
    took the break right about the time we got to the Alicia
    Elmore section and did not get into Delores Wells.
    There seems to me to be some logical connection there
    which would justify perhaps as the Prosecutor has
    suggested, there is some manipulative action going on
    here.
Tr. at 2552-53. The Indiana Supreme Court found the trial
judge’s decision to be supported by the record.
8                                                   No. 03-1968

   Benefiel urges us to find that the state court’s finding
that he was competent was “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” The argument is based in
large part on a contention that the only evidence which was
before the judge supported Benefiel’s claim. Were we to
accept that argument, we would be taking from the judge
the ability to assess the credibility and persuasiveness of
the evidence. This trial judge was not convinced by the
evidence presented. Relying on his own observation, as well
as the testimony of psychological experts from the earlier
hearings, he was convinced that nothing had changed and
that Benefiel remained competent to stand trial. We cannot
say that the decision of the Indiana Supreme Court uphold-
ing that determination was unreasonable in any way.
  Benefiel also alleges that he was denied the effective
assistance of counsel at both his trial and on appeal to the
Indiana Supreme Court. Both claims involve the trial
judge’s understanding of mitigation as revealed in his
sentencing decision and in the jury instructions. To un-
derstand why there are two claims which seem to go to
the same perceived problem, one must remember that in
Indiana at the time, in the penalty phase of the proceeding,
the jury issued a recommendation as to whether the death
penalty should be imposed. Its recommendation, however,
was advisory, not binding. It was the judge who bore the
final burden of imposing a death sentence. Indiana Code
§ 35-50-2-9(e)(2).1 Benefiel claims that his trial attorneys
were incompetent for not objecting to the jury instructions



1
  At the time, the statute read, “The court shall make the final
determination of the sentence, after considering the jury’s recom-
mendation, and the sentence shall be based on the same stan-
dards that the jury was required to consider. The court is not
bound by the jury’s recommendation.”
No. 03-1968                                                 9

and that his attorneys were incompetent at both the trial
and on appeal for not arguing that the sentencing judge
applied an unconstitutionally narrow definition of mitiga-
tion in evaluating whether to impose the death sentence.
  The well-established legal principles that govern claims
of ineffective assistance of counsel are set out in Strickland
v. Washington, 466 U.S. 668 (1984). An ineffective assis-
tance claim has two components. First, a petitioner must
show that counsel’s performance was deficient. Secondly, he
must show that the deficiency prejudiced his defense. To
establish deficient performance, a petitioner must demon-
strate that the representation “fell below an objective
standard of reasonableness.” At 688. The Court has “de-
clined to articulate specific guidelines for appropriate
attorney conduct and instead have emphasized that ‘[t]he
proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.’ ”
Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003), quoting
Strickland, 466 U.S. at 688. To establish prejudice, the
petitioner must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confi-
dence in the outcome.” Strickland, 466 U.S. at 694.
  It was the Strickland standard on which the Indiana
Supreme Court relied. As to the jury instructions, the court
was “satisfied that a lawyer performing reasonably well
could decide the instructions as a whole gave the jury an
adequate picture of its role and take a pass on objecting to
this particular instruction.” Benefiel, 716 N.E.2d at 914. We
cannot conclude that this finding was “contrary to, or in-
volved an unreasonable application of” Strickland or of
various Supreme Court cases analyzing jury instructions,
particularly instructions on mitigation.
10                                               No. 03-1968

  The instruction to which Benefiel objects is “[m]itigat-
ing is defined as a fact or circumstance which makes
an offense appear less severe.” Benefiel argues that the
instruction is unconstitutional in that it impermissibly
limited the jury’s consideration of mitigating evidence to the
circumstances surrounding the offense. In other words, he
contends that it indicated that the only relevant mitigating
evidence was that which could, for instance, justify his
actions in committing the offense. There was, he argues, a
reasonable likelihood that the jury applied the challenged
instruction in a way that prevented consideration of
relevant mitigating evidence, such as his difficult childhood.
  The scope of mitigation is also the basis of his claim that
counsel at both his trial and on appeal were incompetent for
failing to raise the issue that his Eighth Amendment rights
were violated at sentencing because the judge himself
applied an unconstitutionally narrow definition of miti-
gation in evaluating whether to sentence Benefiel to death.
  In support of his argument, Benefiel calls our attention to
Eddings v. Oklahoma, 455 U.S. 104 (1982). In that case, the
sentencing judge stated that he would not consider in
mitigation the circumstances of Eddings’ unhappy upbring-
ing and emotional disturbance. The Court said that the
sentencer may not “refuse to consider, as a matter of law,
any relevant mitigating evidence.” At 114 (emphasis in
original).
  It is a long step from what happened in Eddings to what
happened here. We will look at the jury instruction first.
The jury instruction at issue is a single sentence from the
entire charge to the jury. But we do not evaluate a single
sentence in isolation. It is well-established that a “single
instruction to the jury may not be judged in artificial iso-
lation, but must be viewed in the context of the overall
charge.” Boyd v. United States, 271 U.S. 104, 107 (1926);
No. 03-1968                                               11

Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The in-
structions must be such that the jury is not precluded from
giving effect to the mitigating evidence. Weeks v. Angelone,
528 U.S. 225 (2000). When we look to the instructions as a
whole, we do not find that the instructions unconstitution-
ally limit the jury’s consideration of mitigating evidence.
  The jury was instructed that
    [t]he law provides that you may also consider the
    following mitigating circumstance: The defendant: 1.
    has no significant history of prior criminal conduct; 2.
    was under the influence of extreme mental or emotional
    disturbance when he committed the murder; 3. defen-
    dant’s capacity to appreciate the criminality of his
    conduct or to conform his conduct to the requirements
    of law was substantially impaired as a result of mental
    disease or defect; 4. any other circumstances appropri-
    ate for consideration.
The sentence Benefiel objects to was part of an instruction
which stated in full:
    Mitigating is defined as a fact or circumstance which
    makes an offense appear less severe. So, even though a
    mitigating circumstance does not constitute a justi-
    fication of or excuse for the offenses in question, it
    should, in the interests of fairness and mercy, be con-
    sidered as reducing Bill J. Benefiel’s moral culpability.
The jury was also told, “You may consider all the evidence
introduced at the trial, together with any new evidence
presented at this hearing.”
  The hearing included evidence from a jailer at the jail
where Benefiel was held prior to trial. He testified that
Benefiel suffered mood swings in jail and was suicidal. It
included testimony from Benefiel’s birth mother, Norma
Gilley, who testified that she gave Bill away at birth to a
12                                               No. 03-1968

basically unfit mother in exchange for a place to stay.
Although she knew the adoptive mother, Gilley showed no
interest in Benefiel’s life or in whether one of the adoptive
mother’s boyfriends was abusing him. She knew about his
trial on these charges but did not voluntarily come forward
to help. She testified on Benefiel’s behalf only because she
was subpoenaed by his attorney. There was testimony from
Marilyn Benefiel, the petitioner’s wife, who described mood
swings and outbursts of violence. She also testified that she
planned to stay married to Benefiel and that their three
children loved him. In addition, all of the evidence from
trial, including that from psychologists, was incorporated
into the penalty hearing. Furthermore, counsel said in
closing argument that mitigating circumstances “have to do
with whether or not you think that the defendant’s mental
state or mental disease or whatever mental problems he
has, give him not an excuse, not a justification, but give him
a reason to expect some mercy in the decision you are about
to make.”
  When we view the instructions as a whole and the evi-
dence which the instructions notify the jury they can
consider, we think that, as in Boyde v. California, 494 U.S.
370, 381 (1990), “there is not a reasonable likelihood that
[the] jurors interpreted the trial court’s instructions to
prevent consideration of mitigating evidence of background
and character.” In Boyde, the defendant had objected to an
instruction which listed 11 examples of mitigating evidence,
all but one of which focused on the specific crime at issue or
on prior criminal activity. Boyde contended that the
remaining provision, a so-called catch-all provision, “did not
allow the jury to consider and give effect to non-crime-
related mitigating evidence, because its language— ‘[a]ny
other circumstance which extenuates the gravity of the
crime’—limited the jury to other evidence that was related
to the crime.” At 378 (emphasis in original).
No. 03-1968                                                13

  The Court disagreed. The instruction at issue allowed the
petitioner to argue that his background and character
extenuated or excused the seriousness of the crime. Fur-
ther, the jury was instructed to consider any other circum-
stance that might excuse the crime, which would include his
background and character. The Court also found that the
“context of the proceedings would have led reasonable
jurors to believe that evidence of petitioner’s background
and character could be considered in mitigation.” Boyde,
494 U.S. at 383.
  Given the entire picture which emerges on this issue, we
cannot find that the Indiana Supreme Court’s conclusion
that counsel “performing reasonably well could decide the
instructions as a whole gave the jury an adequate picture
of its role . . .” and that therefore the representation was
not deficient is an unreasonable application of Strickland.
  We reach the same conclusion when we look at the
sentencing proceeding and the judge’s understanding of
mitigating circumstances. In addition to the evidence in
mitigation that the jury heard, the judge also heard from
Elmore, Wells’s parents, and Wells’s husband. All four
testified that they did not want Benefiel to be sentenced to
death. They wanted him to remain alive in prison and to
have to confront daily what he had done. Death, in the
words of Elmore, was the “easy way out.”
  After hearing from the victims, the judge first went
through the statutory mitigating factors, finding that none
of them applied. He then considered Benefiel’s mistreat-
ment while he was young and referred to Benefiel’s back-
ground. But ultimately he concluded that there was “no
excuse or justification to explain or mitigate against these
incomprehensible acts . . . .” He said, not without justifica-
tion, that to “weigh the aggravating factor against any
possible mitigating factors in this case is like as the old
axiom goes, comparing a mountain to a molehill.” While
14                                               No. 03-1968

there are phrases during the sentencing hearing that can be
interpreted to limit the scope of mitigation, it is clear that
the sentencing judge was aware that the evidence of
childhood trauma and other psychological factors were, in
fact, what mitigation was all about. It was simply that in
his view those factors did not tip the scales when they were
weighed against the aggravating factors. We cannot find
that the failure to raise this issue violated the Strickland
standard.
  Benefiel’s final claim is that his trial counsel was ineffec-
tive for failing to move to suppress statements from two
women who testified that Benefiel had raped them 7 and 9
years earlier. A woman named Diana testified that a man
wearing a black ski mask broke into her bedroom and stood
over her bed. He was holding a gun. He asked her for money
and then took her to another bedroom where he tied her to
the bed with an electrical cord. He raped her and forced her
to perform oral sex on him. After these acts, her assailant
took off his mask and she saw his face. No one was ever
charged with the crime but, during the present trial, Diana
testified that the man who raped her was Benefiel. The
second witness was Mary, who testified that she was
walking across a parking lot when a man wearing a nylon
mask and carrying a gun grabbed her. She also was raped,
tied up, and put into a shed. Later the assailant put her in
the trunk of his car. When he took her out of the trunk he
raped her again. He then put putty in her eyes and taped
over the putty. She was raped again. At one point the putty
slipped from her eyes and she saw the assailant, who had
removed his mask. She positively identified Benefiel.
  In evaluating this evidence, the Indiana Supreme Court
concluded that under Indiana law it was admissible to show
a “common scheme or plan.” The court also found that the
attacks were not too remote in time to be admissible. Given
that the testimony was found to be admissible, counsel
No. 03-1968                                               15

cannot be faulted for failing to register a futile objection.
Benefiel was not prejudiced by the failure to object.
  For all these reasons, the judgment of the district court
denying Benefiel’s petition for a writ of habeas corpus is
AFFIRMED.

A true Copy:
       Teste:

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




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