                             In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 07-2093 and 07-2182

JOSEPH E. C ORCORAN,
                                                Petitioner-Appellee,
                                                   Cross-Appellant,
                                 v.



E DWIN G. B USS, S UPERINTENDENT,

                                            Respondent-Appellant,
                                                  Cross-Appellee.


            Appeals from the United States District Court
      for the Northern District of Indiana, South Bend Division.
                  No. 05 C 389—Allen Sharp, Judge.



   A RGUED D ECEMBER 3, 2007—D ECIDED D ECEMBER 31, 2008




 Before B AUER, W ILLIAMS and S YKES, Circuit Judges.
  B AUER, Circuit Judge. On July 26, 1997, Joseph Corcoran
shot and killed four men: his brother Jim Corcoran, his
sister’s fiancé Robert Scott Turner, Timothy Bricker, and
Doug Stillwell. An Indiana state court jury convicted
Corcoran of four counts of murder. The trial court agreed
2                                 Nos. 07-2093 and 07-2182

with the jury’s determination and sentenced Corcoran to
death. Corcoran exhausted his state court direct appeals
and waived state post-conviction review. In 2005, Corcoran
filed a petition for a writ of habeas corpus in the United
States District Court for the Northern District of Indiana,
claiming that his Sixth Amendment right to a jury trial
was violated by an offer made by the State during pre-
trial negotiations, which in turn tainted his death sen-
tence. The district court granted his petition. The State
now appeals the district court’s grant of habeas relief;
Corcoran cross-appeals from the district court’s decision
that Corcoran was competent to waive his state post-
conviction proceedings. For the following reasons, we
affirm the district court’s finding of competence, but we
reverse the grant of habeas relief.


                   I. BACKGROUND
  After Corcoran was indicted for four counts of murder
under Ind. Code § 35-42-1-1, the State and Corcoran
participated in extensive negotiations regarding the
possibility of a plea agreement. The State made two
offers: (1) a sentence of life without the possibility of
parole in exchange for a plea of guilty, or (2) the dismissal
of a request for the death penalty in exchange for
Corcoran’s agreement to proceed by bench trial instead
of jury trial. Corcoran was advised by his counsel (during
“several hundred” hours of meetings) that the offers
were in his best interest for a number of reasons:
(1) Corcoran had made a videotaped confession of the
crimes; (2) his confession matched the physical evidence
Nos. 07-2093 and 07-2182                                      3

at the crime scene; (3) two of the three court-ordered
psychiatrists that evaluated Corcoran concluded that
he was competent to stand trial and to aid in his defense;
and (4) defense counsel planned to present no defense
at trial. Corcoran could not give a specific reason why
he was unwilling to accept either offer, stating “I just feel
like I should go to trial,” and that he could not explain
why.1 Negotiations lasted for approximately nine months,
after which the State withdrew its offers and filed four
applications for the death penalty.
  Before trial, defense counsel gave notice to the court that
an insanity defense would be asserted; after court-ap-
pointed doctors examined Corcoran and concluded that
he was competent, defense counsel withdrew its claims. A
jury found Corcoran guilty and recommended the death


1
  At the request of defense counsel, an experienced Indiana
Public Defender met with Corcoran to make sure he understood
the offer made by the State to dismiss the death penalty in
exchange for agreeing to a bench trial. She explained to
Corcoran that she was “unaware of any other capital murder
defendant to whom the prosecution had extended a pre-trial
offer to dismiss the death penalty without requiring a guilty
plea in exchange,” and that “he would still have the opportunity
to present evidence and [argue] for a sentence less than life
without parole, without facing the risk of a greater sentence.”
The defense also arranged a meeting between Corcoran and a
Public Defender in Marion County, who discussed the logic of
why the offers were in Corcoran’s best interest. Despite the
lengthy discussions, Corcoran offered no specific reason for
rejecting the offers, other than he had a “feeling” that he
should go to trial.
4                                    Nos. 07-2093 and 07-2182

penalty. On August 26, 1999, the district court sentenced
Corcoran to death.2
   On direct appeal, Corcoran filed a written waiver of
his right to appeal his convictions and challenged only
his death sentence. Among the six claims that alleged
the Indiana Death Penalty statute violated his state and
federal constitutional rights, Corcoran argued that the
statute violated his Sixth Amendment right to a jury trial
in that when he declined the State’s offer to proceed by
a bench trial and chose to be tried by a jury, the State’s
request for the death penalty sought “to force [Corcoran]
to abdicate a basic right,” when the State actually believed
that life imprisonment was the appropriate penalty.
Corcoran v. State, 739 N.E.2d 649, 654 (Ind. 2000) (Corcoran
I). The Indiana Supreme Court rejected all of Corcoran’s
arguments and upheld Indiana’s Death Penalty statute
as it applied to him. Id.
  In addressing Corcoran’s argument that his right to a
jury trial was violated, the court emphasized that, under
Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d



2
   At the time of Corcoran’s sentencing, Indiana law required the
trial judge make an independent determination of whether to
impose the death sentence. Ind. Code § 35-50-2-9(e); Lowery v.
Anderson, 225 F.3d 833, 842 (7th Cir. 2000). The statute was
amended in 2002, in light of Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 256 (2002), to make the jury’s decision
final. See Act of Mar. 26, 2002, Pub.L. No. 117-2002, 2002-2
Ind. Acts 1734; Ritchie v. State, 809 N.E.2d 258, 263 n.1 (Ind.
2004).
Nos. 07-2093 and 07-2182                                     5

604 (1978), although constitutional limits do apply, the
discretionary power of a prosecutor to offer plea bar-
gains is wide. The court found that in the context of plea
bargaining, there is no material distinction in these dis-
cretionary powers to agree to a lesser sentence in exchange
for a guilty plea or for a bench trial. Corcoran I, at 654.
However, the court vacated Corcoran’s sentence and
remanded to the trial court, finding a “significant possibil-
ity that the trial court may have relied upon non-statutory
aggravating factors in deciding whether to impose the
death penalty” under Indiana law. Id. at 657 (citing Harri-
son v. State, 644 N.E.2d 1243 (Ind. 1995)). On September 30,
2001, the trial court reweighed the statutory aggravators
under Ind. Code § 35-50-2-9(b)3 and reinstated Corcoran’s
death sentence; the Indiana Supreme Court affirmed
his sentence on September 5, 2002. See Corcoran v. State,
774 N.E.2d 495, 448-49 (Ind. 2002) (Corcoran II).
  Corcoran was required to file a petition for post-convic-
tion relief in state court by September 9, 2003. In what


3
  The trial court relied upon the following aggravating circum-
stances: Corcoran was being tried in one proceeding for com-
mitting multiple murders; the murders were committed
knowingly, intentionally, and in a particularly heinous way;
and the mental disturbance suffered by Corcoran did not affect
his capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law. The trial
court also gave varying weight to mitigating circumstances,
including the following: he was under the influence of a mental
or emotional disturbance at the time of the murders; Corcoran’s
cooperation with authorities; his lack of criminal history; and
his remorse.
6                                Nos. 07-2093 and 07-2182

would be the first in a series of flip-flops, he refused to
sign his petition, believing that he should be put to death
for his crimes. At the request of his counsel, a State
Public Defender, the trial court scheduled a hearing in
October, 2003, to determine whether Corcoran was compe-
tent to waive post-trial review of his conviction and
sentence. Defense counsel sought the opinions of three
mental health experts: clinical psychologist Dr. Robert G.
Kaplan; forensic psychiatrist Dr. George Parker; and
clinical neuro-psychologist Dr. Edmund Haskins. Each
doctor separately interviewed Corcoran and reviewed
his mental health records.
  At the hearing, all three experts testified that Corcoran
suffered from paranoid schizophrenia; the State and the
post-conviction court acknowledged the same. Ac-
cording to the experts, symptoms of his disease included
delusions that he had a speech disorder and a belief that
prison guards were operating an ultrasound machine to
torment him. On the basis of that diagnosis, the experts
concluded that Corcoran was unable to make a rational
decision concerning his legal proceedings. Each expert
stated that Corcoran’s decision to waive post-conviction
review of his sentence, thereby hastening his execution,
was premised on his desire to be relieved of the pain that
he believed he was experiencing as a result of his delu-
sions. The experts also stated that Corcoran had the
capacity to understand his legal position, and Dr. Parker
testified that Corcoran had a clear awareness of the
status of his case and what was at stake if he waived
further proceedings.
Nos. 07-2093 and 07-2182                                    7

  Additionally, Corcoran testified at the competency
hearing, where the prosecutor and the trial judge ques-
tioned him. He stated that he understood it was his last
chance at a review of the case, and that if it was unsuc-
cessful, he would be executed. He told the judge that he
never wanted a competency hearing, and that he wanted
to waive his appeals because he was guilty of murder.
He stated:
    I think I should be executed for what I have done and
    not because I am supposedly tortured with ultrasound
    or whatever. I am guilty of murder. I should be exe-
    cuted. That is all there is to it. That is what I believe.
    I believe the death penalty is a just punishment for
    four counts of murder.
  In December, 2003, the post-conviction court found
that Corcoran was competent to waive further challenges
to his sentence and be executed. The court noted that:
    [the] evidence is clear that [Corcoran] suffers from a
    mental illness . . . [however the issue before the court
    was] whether he is competent to waive post-conviction
    review . . . [t]he dialogue the State and the Court had
    with [Corcoran] clearly indicate he is competent and
    understands what he is doing. While his choice of
    action may be unwise, and obviously against the
    advice of counsel, he is competent to make this ulti-
    mate decision in spite of his mental illness.
  The Indiana Supreme Court affirmed the post-conviction
court’s competency determination. See Corcoran v. State, 820
N.E.2d 655, 662, aff’d on reh’g, 827 N.E.2d 542 (Ind. 2005)
(Corcoran III); In doing so, the court considered: (1) the
8                                 Nos. 07-2093 and 07-2182

testimony of the experts, each of whom concluded that
his decision to forego post-conviction review was prem-
ised on his desire to be relieved of the delusional pain he
was experiencing as a result of his mental illness; (2) the
fact that Corcoran did not tell any expert that he wished
to end his appeals in order to escape his delusions;
(3) his prison records and expert medical testimony
which revealed that his psychotic symptoms were being
controlled through various psychiatric medications;
(4) Corcoran’s statements at the hearing that he wanted to
waive his appeals; and (5) evidence that Corcoran was
aware of his legal position and the consequences of his
decision, such as his own testimony at the hearing as
well as expert testimony that he was cognizant of his
sentence and the appeals process. The court concluded
that the evidence supported the trial court’s determination
that Corcoran had “both a rational understanding of and
can appreciate his legal position . . . [and] the evidence
does not conclusively indicate that Corcoran’s decision
was not made in a rational manner.” Id. at 662.
  On February 10, 2005, Corcoran changed his mind and
attempted to file a verified state post-conviction petition,
which was dismissed as untimely by the trial court; the
Indiana Supreme Court affirmed the trial court on April 18,
2006, stating that “[w]e have afforded Corcoran consider-
able review of his sentence . . . and the post-conviction
court’s competency determination. The public interest in
achieving finality at this stage weighs heavily against
further review.” Corcoran v. State, 845 N.E.2d 1019, 1023
(Ind. 2006) (Corcoran IV) (internal citations omitted).
Nos. 07-2093 and 07-2182                                    9

  On November 8, 2005, Corcoran filed an untimely
petition for a writ of habeas corpus with the United States
District Court for the Northern District of Indiana,
raising eight claims that his constitutional rights had
been violated by the proceedings that resulted in his
conviction and death sentence. On December 5, 2005,
Corcoran again changed his mind and filed a pro se
“Petition to Halt All Future Appeals,” in which he indi-
cated that he did not wish to further challenge his convic-
tions and sentence. On March 31, 2006, Corcoran sent a
letter to the district court, stating that he only signed the
post-conviction petition (filed on February 10, 2005)
because he believed the Indiana Supreme Court would
find him competent. He further stated that he never
intended to appeal his sentence, and that he had con-
sented to the filing of the habeas petition in acquiescence
to the requests of his wife and his attorneys. He also
told the court that he fabricated the story about being
tortured by an ultrasound machine in prison, and he
denied that his sleep disorder was a motivation to give
up on appeal. Corcoran asked the district court to accept
the Indiana Supreme Court’s finding that he was compe-
tent, and in essence, deny his habeas petition.
  Against Corcoran’s wishes, on April 9, 2007, the district
court granted Corcoran’s petition for habeas relief under
28 U.S.C. § 2254(d), finding the Indiana Supreme Court’s
holding in Corcoran I that the offer was within “the discre-
tionary powers of the prosecutor” violated Corcoran’s
right to a jury trial under United States v. Jackson, 390 U.S.
570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), which held that
a provision of the Federal Kidnapping Act, 18 U.S.C.
10                                Nos. 07-2093 and 07-2182

§§ 1201 and 1202, that reserved the possibility of the
death penalty exclusively for defendants who insisted on
a jury trial, imposed an impermissible burden on the
right to a jury trial. The district court considered both of
the State’s offers in adjudicating the present petition, and
found that while the first offer to waive the death penalty
in exchange for a guilty plea was well within prosecutorial
discretion, the second offer sought to coerce Corcoran
into waiving his right to a jury trial, and as such, was
“objectively unreasonable” under the United States
Supreme Court’s decision in Jackson. Corcoran v. Buss, 483
F.Supp.2d 709, 723-24 (N.D.Ind. 2007) (Corcoran V). The
district court distinguished Bordenkircher from the
instant case, by finding that the State’s second offer
could not be considered in the context of plea negotia-
tions, for the offer did not seek an admission of guilt. The
district court also found that the Indiana Supreme Court,
in Corcoran III, reasonably concluded that Corcoran was
competent to waive his state post-conviction remedies.
The court granted Corcoran’s petition and ordered the
State of Indiana to re-sentence Corcoran to a sentence
other than death within 120 days. Corcoran V, at 734. The
State appealed the grant of the habeas petition to this
Court; Corcoran filed a cross-appeal, challenging the
district court’s conclusion that he was competent to
waive his right to post-conviction review.
Nos. 07-2093 and 07-2182                                   11

                      II. ANALYSIS
   Federal courts are authorized to grant a writ of habeas
corpus when an individual is held in custody under a
state court decision in violation of the United States
Constitution. “We review the district court’s findings of
fact for clear error and its legal conclusions, as well as
mixed questions of law and fact, de novo.” Rizzo v. Smith,
528 F.3d 501, 505 (7th Cir. 2008). In doing so, we, like
the district court, must evaluate the decision of the last
state court to have adjudicated Corcoran’s claim on the
merits according to the standards set forth in 28 U.S.C.
§ 2254(d). Williams v. Bartow, 481 F.3d 492, 497-98 (7th
Cir. 2007). We will not grant a writ of habeas corpus
unless the state court decision (1) was “contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States”; or (2) “was based on an unreasonable
determination of the facts in light of the evidence pre-
sented in the State court proceeding.” § 2254(d); Johnson
v. Loftus, 518 F.3d 453, 456 (7th Cir. 2008) (citing Williams
v. Taylor, 529 U.S. 362, 376, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000)).
  In determining whether the district court was correct
in granting Corcoran’s habeas petition, we must first
identify the “clearly established Federal law” that Corcoran
argues was offended by the Indiana state court decision.
Searcy v. Jaimet, 332 F.3d 1081, 1087 (7th Cir. 2003). We then
determine “whether the state court’s decision was
either ‘contrary to’ or ‘involved an unreasonable applica-
tion of’ those legal principles.” Id. at 1088. A decision is
12                                 Nos. 07-2093 and 07-2182

“contrary to” federal law when the state court applies a
rule that contradicts the governing law set forth in Su-
preme Court cases, or if the state court decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Williams, 529 U.S. at 405-
06, 120 S.Ct. 1495 (quotations omitted); Calloway v. Mont-
gomery, 512 F.3d 940, 943 (7th Cir. 2008). An “unreasonable
application” of clearly established federal law in the
habeas context is more than an “incorrect” application.
Woods v. McBride, 430 F.3d 813, 817 (7th Cir. 2005) (“[A]
federal habeas court may not issue the writ simply be-
cause that court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”) (citing
Williams, 529 U.S. at 411, 120 S.Ct. 1495). “Rather, in order
to trigger grant of the writ, the state court decision must
be both incorrect and unreasonable.” Id. at 817; see also
Johnson, 518 F.3d at 456 (noting that the Supreme Court
has “recently reemphasized that a state court’s applica-
tion of clearly established law is acceptable, even if it is
likely incorrect, so long as it is reasonable”) (citing Wright
v. Van Patten, __ U.S. ___, 128 S.Ct. 743, 169 L.Ed.2d 583
(2008)). In assessing the reasonableness of the Indiana
Supreme Court’s decision, we presume that its factual
determinations are correct, unless clear and convincing
evidence to the contrary rebuts them. 28 U.S.C. § 2254(e)(1);
Mack v. McCann, 530 F.3d 523, 533 (7th Cir. 2008).


  A. Right to Jury Trial
  We begin with Corcoran’s contention that the State
sought to “unconstitutionally chill or squelch the asser-
Nos. 07-2093 and 07-2182                                      13

tion of his right to a jury trial by penalizing Corcoran
with a death sentence for exercising that right,” which was
contrary to or an unreasonable application of the “bright-
line” rule in Jackson.
  In Jackson, the Supreme Court construed a provision of
the Federal Kidnapping Act, 18 § 1201(a), to allow for
the imposition of the death penalty only upon the recom-
mendation of a jury after a guilty verdict, whereas the
maximum penalty for a defendant who pled guilty or
waived a jury and was tried in a bench trial, was life
imprisonment. The Court struck down the provision,
finding that it reserved the possibility of the death
penalty exclusively for defendants who insisted on a jury
trial and therefore imposed an impermissible burden on
their right to a jury trial because it “chill[s] the assertion of
constitutional rights by penalizing those who choose to
exercise them.” Jackson, 390 U.S. at 581, 88 S.Ct. 1209. The
Court reasoned that the inevitable effect of the provision
would be to discourage the assertion of the Fifth Amend-
ment right not to plead guilty and to deter the exercise
of the Sixth Amendment right to a jury trial. “[T]he evil
in the federal statute is not that it necessarily coerces
guilty pleas and jury waivers but simply that it need-
lessly encourages them.” Id. at 583, 88 S.Ct. 1209.
  In the wake of Jackson, the Supreme Court has consis-
tently held that Jackson does not stand for the proposition
“that the Constitution forbids every government-imposed
choice in the criminal process that has the effect of dis-
couraging the exercise of constitutional rights.” See e.g.,
Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 36
14                                 Nos. 07-2093 and 07-2182

L.Ed.2d 714 (1973) (discussing cases). In Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), a
petitioner pleaded guilty and was sentenced to 50 years’
imprisonment after being indicted under the Federal
Kidnapping Act (the same statute at issue in Jackson). The
petitioner argued that his guilty plea was involuntary,
and therefore invalid under Jackson, since, according to
the petitioner, every guilty plea entered under the Act
before Jackson was invalidated by Jackson. The Court
concluded that the petitioner “read far too much into the
Jackson opinion . . . Jackson prohibits the imposition of the
death penalty under § 1201(a), but that decision neither
fashioned a new standard for judging the validity of guilty
pleas nor mandated a new application of the test . . . that
guilty pleas are valid if both ‘voluntary’ and ‘intelligent.’ ”
Brady, 397 U.S. at 746-47, 90 S.Ct. 1463; see also North
Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d
427 (1970) (“Jackson established no new test for deter-
mining the validity of guilty pleas.”).
  The Supreme Court continued to reaffirm “the
permissibility of plea bargaining even though ‘every
such circumstance has a discouraging effect on the defen-
dant’s assertion of his trial right,’ because the imposition
of these difficult choices [is the] inevitable attribute of any
legitimate system which tolerates and encourages the
negotiation of pleas. ” Corbitt v. New Jersey, 439 U.S. 212,
219 n. 9, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (quoting Chaffin,
412 U.S. at 31, 93 S.Ct. 1977). In Bordenkircher v. Hayes, the
prosecutor offered to forego a habitual criminal count if
the defendant pleaded guilty, in which event the manda-
tory life sentence would have been avoided. The defendant
Nos. 07-2093 and 07-2182                                     15

refused the offer, went to trial on an indictment that
included a count requiring mandatory life imprison-
ment, and a jury found him guilty. The Court upheld the
conviction, holding that the State’s offer did not violate
due process because it had “no more than openly pre-
sented the defendant with the unpleasant alternatives
of forgoing trial or facing charges on which he was
plainly subject to prosecution,” and emphasizing that “[t]o
punish a person because he has done what the law
plainly allows him to do is a due process violation of the
most basic sort, [and] for an agent of the State to pursue
a course of action whose objective is to penalize a
person’s reliance on his legal rights is ‘patently uncon-
stitutional.’ ” Id. at 365, 368, 98 S.Ct. 663. But “in the give-
and-take of plea bargaining, there is no such element of
punishment or retaliation as long as the accused is free to
accept or reject the prosecution’s offer.” Id. at 363, 365, 98
S.Ct. 663 (internal citations omitted).
   “[B]y tolerating and encouraging the negotiation of
pleas, [the Supreme] Court has necessarily accepted as
constitutionally legitimate the simple reality that the
prosecutor’s interest at the bargaining table is to persuade
the defendant to forgo his right to plead not guilty.” Id. at
364, 98 S.Ct. 663. Under Bordenkircher and its progeny, “the
Supreme Court has applied a presumption of vindictive-
ness ‘exclusively in the post-trial context,’ and has specifi-
cally considered and rejected claims that a presumption
is applicable when, following failed [pre-trial] plea negotia-
tions, additional charges are brought against a defendant.”
Williams, 481 F.3d at 504 (analyzing Bordenkircher) (empha-
sis added) (internal citation omitted); see also United States
16                                    Nos. 07-2093 and 07-2182

v. Warda, 285 F.3d 573, 580 (7th Cir. 2002) (“The classic
instance triggering the presumption [of vindictiveness] is
the one in which the same judge tries and sentences a
person for a second time after he has succeeded in
having his original conviction reversed.”).4
  Corcoran’s attempt to equate the offer to waive his right
to jury trial during pre-trial negotiations to a defendant
who chose to exercise a legal right (in a post-trial setting)
to attack his original conviction is an unreasonable inter-
pretation of Bordenkircher, and the district court erred
in accepting it.
  Consequently, we have found no authority from the
Supreme Court that provides support for the district
court’s decision that Jackson clearly established a rule
that stands for the proposition that during pre-trial negoti-
ations, a prosecutor cannot offer to forgo the death
penalty in exchange for a bench trial.5 The Court has
squarely held that a State may encourage a guilty plea by



4
  Corcoran does not argue that the State was vindictive in its
decision to seek the death penalty.
5
  We also note that the condemned provision of the Federal
Kidnapping Act in Jackson provided in effect that a defendant
could not be sentenced to death if he pled guilty, but faced a
significant likelihood of capital punishment if he went to trial.
However, the Indiana Death Penalty statute, which applies to
Corcoran’s state law murder convictions, permits a defendant
to be sentenced to death, whether he pleads guilty, proceeds
by bench trial, or proceeds by jury trial. See Ind. Code. § 35-50-2-
9(a)-(d); Smith v. State, 686 N.E.2d 1264, 1271 (Ind. 1997).
Nos. 07-2093 and 07-2182                                     17

offering substantial benefits in return for the plea, in-
cluding an offer to forego seeking the death penalty. See
Corbitt, 439 U.S. at 218, 99 S.Ct. 492. By making the
second offer, the prosecutor merely tried to induce
Corcoran to give up a right by agreeing to lenient treat-
ment for Corcoran. Because it is clearly established law
that a prosecutor may offer a “recommendation of a
lenient sentence or a reduction of charges” as part of the
plea bargaining process, we believe the Indiana
Supreme Court correctly analyzed Corcoran’s claim in
the context of plea-bargaining under Bordenkircher.
  As for the district court’s conclusions that the State’s
second offer could not be considered a plea bargain since
Corcoran was asked not for an admission of guilt, but
rather to waive his right to a jury trial, these contentions
have no basis for support in Jackson or elsewhere. First,
the Supreme Court has upheld pleas that do not include
an admission of guilt, commonly referred to as “Alford
pleas.” See generally Alford, 400 U.S. 25, 91 S.Ct. 160. Fur-
ther, while we believe that the State’s second offer to
forego the death penalty if Corcoran tried his case to the
bench may be uncommon, the Supreme Court has long
instructed that plea agreements may waive constitu-
tional or statutory rights, most pertinently the right to a
jury trial. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969); see New York v. Hill, 528 U.S. 110, 117,
120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (“We allow waiver
of numerous constitutional protections for criminal
defendants that also serve broader social interests.”);
Godinez v. Moran, 509 U.S. 389, 397 n.7, 113 S.Ct. 2680, 125
L.Ed.2d 321 (1993) (“A criminal defendant waives three
18                                   Nos. 07-2093 and 07-2182

constitutional rights when he pleads guilty: the privilege
against self-incrimination, the right to a jury trial, and the
right to confront one’s accusers.”) (citing Boykin, 395 U.S.
at 243, 89 S.Ct. 1709). A criminal defendant may waive
these fundamental protections afforded by the Constitu-
tion, so long as that waiver is made “knowing[ly],
intelligent[ly], [and] with sufficient awareness of the
relevant circumstances and likely consequences.” Ruiz v.
United States, 536 U.S. 622, 629, 122 S.Ct. 2450, 153
L.Ed.2d 586 (2002) (citing Brady, 397 U.S. at 748, 90 S.Ct.
1463); Corbitt, 439 U.S. at 218-19, n.9, 99 S.Ct. 492 (footnote
omitted) (emphasizing that “Jackson had in no way
altered the test of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969) that guilty pleas are valid
if knowing, voluntary, and intelligent.”). A defendant
may waive many other fundamental protections along
with the right to a jury trial, in the context of plea negotia-
tions, such as: the right to view impeachment informa-
tion relating to any informants or other witnesses, see
Ruiz, 536 U.S. at 629, 122 S.Ct. 2450, and United States v.
Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975);
the right to an indictment, a trial, and an appeal (also
known as a “fast-track” plea bargain), see Ruiz, 536 U.S. at
629, 122 S.Ct. 2450; the right to prevent the admission
of statements during plea negotiations under Federal
Rule of Evidence 410 and Federal Rule of Criminal Proce-
dure 11(e)(6), see United States v. Mezanatto, 513 U.S. 196,
115 S.Ct. 797, 130 L.Ed.2d 697 (1995); the right to col-
laterally attack a sentence, see United States v. Broce, 488 U.S.
563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); the right to a
double jeopardy defense, Ricketts v. Adamson, 483 U.S. 1,
Nos. 07-2093 and 07-2182                                  19

107 S.Ct. 2680, 97 L.Ed.2d 1 (1987); the right to counsel,
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975); and the right to appeal, see United
States v. Hare, 269 F.3d 859, 861 (7th Cir. 2001).
  During the pre-trial negotiations, the State and
Corcoran’s counsel attempted to convince Corcoran to
plead guilty, or in the very least, proceed by bench trial,
due to the overwhelming evidence against him. If it is
constitutionally permissible to use the threat of more
severe punishment to encourage a guilty plea, where a
defendant gives up most of his rights, it should follow
that the State’s use of the same tactics to encourage a
defendant to proceed by bench trial would also be con-
stitutionally permissible, where he would have an opportu-
nity to present evidence and cross-examine witnesses—
rights that would not otherwise be able to assert had
Corcoran pleaded guilty. At the very least, Jackson does
not render an offer like this impermissible or unconstitu-
tional. Obviously, a jury trial is more burdensome than a
bench trial for the State. But even in a bench trial, the
State must present its full case against the defendant, and
in turn, the defendant is entitled to offer a full defense.
United States v. Goodwin, 457 U.S. 368,383, 102 S.Ct. 2485,
73 L.Ed.2d 74 (1982) (“A prosecutor has no ‘personal stake’
in a bench trial and thus no reason to engage in ‘self-
vindication’ upon a defendant’s request for a jury trial.”).
  “Defendants advised by competent counsel and pro-
tected by other procedural safeguards are presumptively
capable of making an intelligent choice in” accepting or
rejecting the offer. Bordenkircher, 434 U.S. at 363, 98 S.Ct.
20                                 Nos. 07-2093 and 07-2182

663 (citing Brady, 397 U.S. at 758, 90 S.Ct. 1463). Indeed,
counsel for Corcoran spent several hundred hours dis-
cussing his plea options, and acknowledged the over-
whelming evidence against Corcoran and the generous
nature of the State’s offers in light of the evidence. Defense
counsel even brought in other attorneys to speak with
Corcoran to discuss the offers, and how, even though
the offer to forego death in exchange for a bench trial
had “never been heard of,” it still gave Corcoran the
option of presenting arguments and evidence to the
court. A party in a criminal proceeding who does not like
the terms of an offered plea bargain can refuse to accept
them it “by spurning the offer and going to trial.” Hare,
269 F.3d at 862. Corcoran took this route, which in-
volved risking a death sentence should he lose at trial.
  Given the amount of evidence complied against
Corcoran that he was responsible for the murders, includ-
ing his own videotaped confession and the lack of defense
that his counsel had available at trial, the State did not
needlessly punish (under Jackson) Corcoran’s right to a
jury trial by making an offer to forego asking for death if
he chose a bench trial. “A prosecutor should remain
free before trial to exercise the broad discretion entrusted
to him to determine the extent of societal interest in
prosecution.” Goodwin, 457 U.S. at 382, 102 S.Ct. 2485. The
Indiana Supreme Court’s conclusion that the State’s offer
did not violate Corcoran’s constitutional rights does not
“l[ie] well outside the boundaries of permissible differ-
ences of opinion.” See Ward v. Sternes, 334 F.3d 696, 703 (7th
Cir. 2003). The decision was neither incorrect nor unrea-
Nos. 07-2093 and 07-2182                                    21

sonable to warrant the district court’s grant of Corcoran
habeas petition.


  B. Competency to Waive Post-Conviction Review
  Corcoran cross appeals the district court’s holding that
Corcoran was competent to waive his post-conviction
proceedings. Corcoran argues that the Indiana Supreme
Court’s conclusion that Corcoran was competent to
waive post-conviction review was unreasonable and
made despite clear evidence to the contrary. As we noted
above, a federal court may set aside a state court’s “deci-
sion that was based on an unreasonable determination
of the facts in light of the evidence presented,” and a
federal court may not overturn a state court’s factual
determinations unless it concludes that they are not
“fairly supported by the record.” § 2254(d)(2), (8);
Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 109
L.Ed.2d 762 (1990) (per curiam). The Supreme Court
has held that a state court’s conclusion regarding a defen-
dant’s competency is entitled to such a presumption.
Demosthenes, 495 U.S. at 735, 110 S.Ct. 2223.
  The petitioner has a “tougher row to hoe” when chal-
lenging his competence in postconviction proceedings
than when he is challenging his competence to stand
trial. Holmes v. Buss, 506 F.3d 576, 579 (7th Cir. 2007). Under
Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583
(1966), when determining a petitioner’s mental competence
to forego judicial proceedings, a court must ask “whether
he has capacity to appreciate his position and make a
rational choice with respect to continuing or abandoning
22                                  Nos. 07-2093 and 07-2182

further litigation,” or “whether he is suffering from a
mental disease, disorder, or defect which may substan-
tially affect his capacity in the premises.” 384 U.S. at 314, 86
S.Ct. 1505; Wilson v. Lane, 870 F.2d 1250, 1254 (7th Cir.
1989); see also Holmes v. Buss, 506 F.3d 576, 579 (7th Cir.
2007) (“If . . . the question is whether a petitioner for
habeas corpus who has been sentenced to death is com-
petent to withdraw a petition for certiorari filed on his
behalf challenging the denial of habeas corpus, . . . the
answer is unlikely to require that he understand more
than that the withdrawal of his petition will almost cer-
tainly terminate any legal challenge to his death sen-
tence.”) (internal citations omitted).
   Corcoran believes the record clearly established that his
decision to waive his rights was not based on “rational
thinking” as discussed in Rees. He argues that three
medical experts testified that he suffered from a mental
illness and that his decision to waive any further appeal of
his sentence was the product of the delusions and pain
he was experiencing as a result of his illness. Corcoran
also contends that the Indiana Supreme Court erred in
finding that he was aware of his legal position and the
consequences of his waiver.
  The Indiana Supreme Court gave careful consideration
of all the evidence presented at the post-conviction hear-
ing. The court acknowledged that the experts testified
that Corcoran suffered from paranoid schizophrenia and
his resulting delusions caused him to waive further
review of his sentence, but the court also found that
Corcoran had a clear awareness of the status of his
Nos. 07-2093 and 07-2182                                  23

case and what was at risk if he waived further review. The
court took into account Corcoran’s own conduct and
testimony at the hearing, in which he stated that his
decision to waive further proceedings was based on his
remorse for his crime, and not on any “delusions” he was
said to have been experiencing. Although the experts
believed otherwise, the Indiana Supreme Court was
entitled to accept Corcoran’s contention that his request
to waive further proceedings was based on his belief
that death is a just punishment for his crimes. See United
States v. Collins, 949 F.2d 921, 926 (7th Cir. 1991) (finding
that statements of the defendant are appropriate evi-
dence for the court to consider when evaluating compe-
tency). The Indiana Supreme Court has recognized that
“[w]hile most people consider death the ultimate penalty,
some murderers faced with life imprisonment may ratio-
nally disagree.” Smith v. State, 686 N.E.2d 1264, 1273 (Ind.
1997) (considering a defendant’s preference for death over
life imprisonment, where there was an indication of his
desire not to spend the rest of his life in prison and
noting that to do so is not “per se irrational”); see also
Wilson v. Lane, 870 F.2d 1250, 1254 (7th Cir. 1989) (in
affirming a district court’s finding of a death row inmate’s
competency to waive further appeals even though the
inmate was ruled mentally incompetent, the Court con-
sidered the inmate’s unwavering testimony that he was
aware of his position and of the federal review options
available to him, and that he based his decision not on
the conditions of his confinement, but on his belief that
death was a better option than life in prison).
  Further, under the Rees standard, there is no support
for Corcoran’s contention that a petitioner who has
24                                Nos. 07-2093 and 07-2182

been diagnosed with a mental illness is not competent to
waive post-trial proceedings. The question under Rees
is whether a mental illness substantially affects the capac-
ity to appreciate his options and make a rational choice
among them. See Whitmore v. Arkansas, 495 U.S. 149, 166,
110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (citing Rees, 384
U.S. at 314, 86 S.Ct. 1505); see also Dennis v. Budge, 378
F.3d 880, 889-92 (9th Cir. 2004) (rejecting the claim that
under Rees, a prisoner on death row should not be allowed
to waive his post-conviction remedies if there is any
possibility that the decision is a product of a mental
disease, disorder or defect); Smith v. Armontrout, 812
F.2d 1050, 1057 (8th Cir. 1987) (“It is very probable that
in every case where a death-row inmate elects to
abandon further legal proceedings, there will be a possi-
bility that the decision is the product of a mental disease,
disorder, or defect . . . [y]et Rees clearly contemplates
that competent waivers are possible.”).
  Our review of the transcripts and the evidence before
the Indiana Supreme Court reveals that it (as well as the
two other courts that considered Corcoran’s competency)
thoroughly and conscientiously examined Corcoran’s
claims of incompetency, and its findings that he had a
“rational understanding of and [could] appreciate his
legal position” are factually supported by the record.
Therefore, because the Indiana Supreme Court’s decision
was based on a reasonable determination of the facts
in light of the evidence, we defer to the determination of
the Indiana Supreme Court that Corcoran was competent.
Nos. 07-2093 and 07-2182                                   25

                    III. CONCLUSION
  The district court’s finding that Corcoran was competent
to waive his post-conviction proceedings is A FFIRMED.
However, the decision of the district court to grant
Joseph Corcoran habeas relief is R EVERSED and R EMANDED
with instructions to deny the writ, and the State of
Indiana is at liberty to reinstate the death penalty.




  W ILLIAMS, Circuit Judge, concurring in part and dissent-
ing in part. I agree with the majority regarding Corcoran’s
Sixth Amendment claim, and I join that part of the opin-
ion. However, I disagree with my colleagues’ conclusion
that Corcoran was competent to waive postconvic-
tion review.
   No one contests that Corcoran suffers from a mental
illness. This is clear from his delusion that prison guards
torture him daily with an ultrasound machine, his con-
versations with individuals who are not there, and his
delusion that he suffers from an involuntary speech
disorder. The question now is whether the Indiana state
court was reasonable in finding that despite his illness,
Corcoran was able to make a rational choice with
respect to waiving any further appeal of his death sen-
tence. See Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003).
26                                Nos. 07-2093 and 07-2182

The Indiana Supreme Court determined he was able to
make a rational choice—one not driven by a desire to
escape his delusions—based on three reasons. Because
two of those reasons are directly contradicted by the
record, however, I believe the Indiana court’s decision
finding waiver under these circumstances was unrea-
sonable error.
  Under 28 U.S.C. § 2254(d), the court can grant a writ of
habeas corpus only where state court adjudication:
(1) “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court”; or
(2) “was based on an unreasonable determination of the
facts in light of the evidence presented in the State
court proceeding.” See also Williams v. Taylor, 529 U.S. 362,
376 (2000). Corcoran must offer clear and convincing
evidence to rebut the presumption that the Indiana Su-
preme Court’s competency finding was correct.
§ 2254(e)(1).
  The Indiana Supreme Court correctly identified Rees as
the governing standard. Rees v. Peyton, 384 U.S. 312, 314
(1966) (per curiam). In Rees, the Supreme Court articulated
the following legal standard to be applied when a death
row inmate seeks to forego further proceedings: “whether
he has capacity to appreciate his position and make a
rational choice with respect to continuing or abandoning
further litigation or on the other hand whether he is
suffering from a mental disease, disorder, or defect
which may substantially affect his capacity in the pre-
mises.” Id. Although the Indiana Supreme Court used
Nos. 07-2093 and 07-2182                                27

the correct standard, it made an unreasonable determina-
tion of the facts in light of the evidence presented.
  The three experts who testified in the competency
hearing unanimously concluded that Corcoran suffers
from paranoid schizophrenia that renders waiver of
further appeal of his death sentence impossible because
the illness prevents him from making rational decisions.
Corcoran v. State, 820 N.E.2d 655, 660, aff’d on reh’g, 827
N.E.2d 542 (Ind. 2005) (Corcoran III). All three experts
interviewed Corcoran for several hours, reviewed his
medical and prison records, his pre-sentencing memo-
randum, numerous prior mental health evaluations, and
correspondence between Corcoran and his sister. Addition-
ally, one of the experts conducted interactive and written
tests. They all agreed that Corcoran was not capable of
making a rational waiver decision because he suffered
from paranoid delusions and those served as the basis
of his decision to waive postconviction relief. The
doctors explained that Corcoran suffered from the
delusion that prison guards tortured him with sound
waves causing his body to twitch and the delusion that
he suffered from an involuntary speech disorder. See
Competency Hr’g Tr. 12, Oct. 21, 2003.
  Despite this evidence, the Indiana court concluded
that Corcoran had the capacity to make a rational choice
on the following grounds:
   Corcoran . . . made no statement to any of the experts
   evaluating him indicating that he wished to end his
   appeals in order to escape his paranoid delusions.
   Corcoran’s prison medical records and the testimony
28                                Nos. 07-2093 and 07-2182

     of each expert indicated that his psychotic symptoms
     were being controlled through various psychiatric
     medications. Corcoran himself spoke directly to his
     reasons for not pursuing post-conviction review and
     the contention that his delusions were prompting his
     actions at the post-conviction hearing.
Corcoran III, 820 N.E.2d at 660 (footnote omitted).
  The problem with the conclusion that Corcoran had the
capacity to make a rational choice is that two of the court’s
three reasons are directly contradicted by the evidence
presented. See Mendiola v. Schomig, 224 F.3d 589, 592 (7th
Cir. 2000) (“If a state court’s finding rests on thin air,
the petitioner will have little difficulty satisfying the
standards for relief under § 2254.”). First, the court rea-
soned Corcoran never told any of the experts that he
wanted to die to escape his delusions. That is not true.
Second, the court stated that each expert indicated
Corcoran’s medication controlled his psychotic symp-
toms. That also is not true. The court also relied on
Corcoran’s own testimony, but the court failed to con-
sider Corcoran’s testimony in light of his delusions.
  The court’s first reason for finding Corcoran capable of
making a rational choice was that Corcoran never told
any expert that he wanted to die to escape his delusions.
This statement was wrong, however, because Corcoran did
tell Dr. Kaplan that he wanted to die in order to escape the
Nos. 07-2093 and 07-2182                                     29

delusions, some of which he said caused him pain.1
Dr. Kaplan explicitly testified that during his meeting
with Corcoran, Corcoran told him he wanted to be put to
death because “he wanted to be released from the quote,
unquote, pain and suffering of his involuntary speech
disorder which really doesn’t exist.” Competency Hr’g Tr.
19. The experts all agree that Corcoran does not suffer
from a speech disorder, but that his delusion causes
him to believe he does. Id. at 62.
  Second, the record directly contradicts the court’s
finding that each expert indicated that Corcoran’s med-
ication controlled his psychotic symptoms. Dr. Kaplan
explicitly testified that Corcoran’s medication did not have
a significant effect on controlling his paranoia and delu-
sions. Id. at 34. Moreover, Dr. Kaplan was the only one
of the three experts who was asked to testify about the
effects of Corcoran’s medication. When he did, Dr. Kaplan
acknowledged that Corcoran benefitted from taking his
antipsychotic medications, but stated that even when



1
  I also note that Dr. Haskins testified that Corcoran wanted to
bring about his own death “[i]n order to escape from his
supposed . . . persecution and the control of the guards and his
discomfort over this delusion about speaking involuntarily.”
Competency Hr’g Tr. 68. It is not clear from Dr. Haskins’s
testimony whether he learned of these reasons only through
Corcoran’s correspondence or through his interview with
Corcoran or a combination of both. But even with Dr. Haskins’s
testimony aside, Corcoran clearly told Dr. Kaplan he wished
to die to escape his involuntary speech disorder.
30                                 Nos. 07-2093 and 07-2182

medicated “it didn’t appear that at any time he was not
paranoid or not delusional.” Id. at 34. Dr. Kaplan further
testified that medical records revealed that even after
Corcoran took a “very high dose” of an antipsychotic
medication in prison he continued to suffer from
paranoia and auditory hallucinations. Id. at 24. I also
note that the postconviction trial court had made the
same incorrect finding that testimony at the hearing
showed that Corcoran’s medication controlled his symp-
toms. This is significant because the Indiana Supreme
Court gave a high level of deference to the trial court’s
conclusion. Corcoran III, 820 N.E.2d at 660.
  The Indiana Supreme Court unreasonably concluded
that Corcoran had the ability to make a rational choice
based on these two erroneous factual premises. “[E]ven a
partial reliance on an erroneous fact finding can support a
finding of unreasonableness.” Ben-Yisrayl v. Buss, 540
F.3d 542, 550 (7th Cir. 2008) (discussing Wiggins v. Smith,
539 U.S. 510, 528 (2003)); see also Mendiola, 224 F.3d at 592-
93 (state court’s finding should be supported by the
record). This leaves only the third reason provided by
the court—Corcoran’s own testimony.
  The Indiana Supreme Court stated that based on
Corcoran’s testimony at the competency hearing, it was
clear that Corcoran understood the nature of the pro-
ceedings, the responsibilities of counsel, and the nature
of the appellate procedure. Corcoran III, 820 N.E.2d at 661.
The court relied very heavily on Corcoran’s statement
that, “I want to waive my appeals because I am guilty of
murder. I think that I should be executed for what I have
Nos. 07-2093 and 07-2182                                  31

done and not because I am supposedly tortured with
ultrasound or whatever . . . I believe the death penalty is
a just punishment for four counts of murder,” as an
indication that Corcoran could appreciate his position
and make a rational choice. Id. at 660-61.
  The majority reasons that the Indiana Supreme Court
was entitled to believe Corcoran’s contention that he
wished to waive further proceedings because of his
guilt, and I agree that ordinarily, the Indiana court’s
decision to rely on one person’s testimony over other
people’s testimony would be one to which we would
defer. See Herrera v. Collins, 506 U.S. 390, 400-01 (1993)
(“upon habeas corpus the court will not weigh the evi-
dence”) (citation omitted). But this is not a case where the
court picked the opinion of one expert who believed
Corcoran could make a rational decision over an expert
who disagreed. Indeed, the State presented no expert
who contradicted the conclusions of these three experts.
Rather, the person whom the court credited was a person
diagnosed with a severe mental illness that causes delu-
sions, who told a doctor and his sister he wanted to die
to escape those delusions. The medical experts who
evaluated Corcoran testified he purposely downplays
his illness and is intelligent enough to know how to hide
his psychosis. In fact, Dr. Parker stated that Corcoran
“would rather be executed than admit that schizophrenia
might be contributing to his desire to die.” Those experts
all testified that Corcoran’s illness has a direct bearing on
his thought process and renders him incapable of making
a rational choice. The Indiana Supreme Court acknowl-
32                                 Nos. 07-2093 and 07-2182

edged the experts’ testimony regarding Corcoran’s delu-
sions but it did not discuss his decision to waive
postconviction review in light of his delusions.2
  But even if the Indiana Supreme Court could have relied
on its own judgment over the opinions of the experts in
this case, the factual inaccuracies of the court’s two other
reasons render its entire finding infirm. See, e.g., Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can
disagree with a state court’s credibility determination
and, when guided by AEDPA, conclude that the deci-
sion was unreasonable or that the factual premise was
incorrect by clear and convincing evidence.”).
   The court determined that medication controlled
Corcoran’s delusions and that the only reason Corcoran
himself had ever given for wanting to waive further
proceedings was his guilt. This might be a different case
if those determinations were true. Because both deter-
minations are directly contradicted by the record, how-
ever, I believe the Indiana Supreme Court’s finding is not
“fairly supported by the record”; instead, the record clearly


2
  Corcoran’s own words later in the competency hearing further
belie the conclusion that he understood and rationally made
the choice to waive postconviction relief. At the close of the
hearing, Corcoran asked the judge what would happen if he
found Corcoran incompetent. The judge explained that the
court would then proceed on the postconviction petition filed
by his attorneys. If Corcoran understood his position and
possessed the ability to make a rational choice among his
options, it would seem he would have understood the pro-
ceedings that had just taken place.
Nos. 07-2093 and 07-2182                                    33

contradicts it. Cf. Demosthenes v. Baal, 495 U.S. 731, 735
(1990) (per curiam) (upholding state court finding that
inmate was competent to waive his right to pursue
postconviction relief where three psychiatrists deter-
mined he was competent). “The [habeas] standard is
demanding but not insatiable . . . [d]eference does not by
definition preclude relief.” Miller-El v. Dretke, 545 U.S. 231,
240 (2005) (citation omitted).
  For this reason, I would reverse the district court’s
finding that Corcoran was competent to waive his
postconviction proceedings and grant Corcoran a condi-
tional writ of habeas corpus requiring litigation of
Corcoran’s postconviction petition in state court. I re-
spectfully dissent.




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