In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1125

Arnold Winters,

Petitioner-Appellant,

v.

Charles Miller, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99 C 773--Larry J. McKinney, Chief Judge.

Argued October 25, 2001--Decided December 19, 2001



  Before Bauer, Posner and Evans, Circuit
Judges.

  Bauer, Circuit Judge. Petitioner Arnold
Winters was convicted of murder,
attempted murder and robbery in the
Superior Court of Marion County, Indiana
in 1987. Winters unsuccessfully
challenged his conviction on various
grounds in both a direct appeal and a
post-conviction petition. Subsequently, a
federal district court denied Winters’
petition for a writ of habeas corpus. For
the reasons set forth below, we find that
Winters’ conviction was not the result of
any constitutional violation and
accordingly, we affirm the decision of
the district court to deny the writ.

I.   HISTORY

A.   Factual Background/1

  On the evening of July 23, 1986, Jay and
Donnie Winters, both brothers of
Petitioner Arnold Winters, were engaged
in an argument at an apartment complex in
Lawrence, Indiana. Eugene Kee and Melvin
McCullough, security guards at the
apartment complex, overheard the
argument, approached Jay and Donnie and
requested that the two men leave the
premises. At this point, Jay pushed
Officer Kee, who, in turn, pushed back.
Jay hit Officer Kee with his elbow,
whereupon Kee drew his pistol and a pair
of handcuffs. Jay and Donnie then agreed
to leave the complex and began to walk
away, followed by the officers. Another
argument ensued, however, and the
officers again intervened. The brothers
agreed to stop arguing and began to walk
away, when Petitioner Winters appeared on
the scene. Approaching the officers from
behind, Winters aimed a pistol at the
back of Officer Kee’s head and fired a
shot that killed Kee immediately.

  Once Officer Kee was killed, Officer
McCullough drew his pistol and fired a
shot. Jay and Donnie Winters then grabbed
McCullough and attempted to take his
pistol. McCullough managed to disable his
pistol before Jay obtained possession of
it. Jay attempted to shoot McCullough
with the disabled pistol but failed.
Petitioner Winters then shot McCullough
in the face and McCullough fell
backwards. Winters fired another shot at
McCullough and handed the pistol to Jay,
who shot McCullough in the back and then
again in the groin. Remarkably,
McCullough was still alive. Jay Winters
observed that "[He] ain’t dead yet,"
walked up to McCullough and attempted to
shoot him in the head, but missed after
McCullough moved. The Winters
brothersappeared to believe that
McCullough was dead at that point, and
they left the scene.

  Petitioner Winters and his brothers, Jay
and Donnie, were tried together in 1987.
During deliberations, the jury foreman
attempted to send a note through the
bailiff to the trial judge that read,
"Can we the jury, listen to only a
portion of the tape recording made during
this subject case--(Melvin McCullough)."
Neither the trial judge nor the attorneys
ever received notice of this note.
Instead, the judge’s bailiff denied the
jury’s request by simply writing "no" and
signing his own initials on the bottom of
the note. The testimony was never read to
the jury.

  Later, the jury attempted to send a
second note to the trial judge requesting
a definition of aiding and abetting.
Again, neither the judge nor the
attorneys received notice of the jury’s
request. The record does not indicate
whether there was any response to this
request.
  The jury found Winters guilty of murder,
attempted murder and robbery, and he was
sentenced to concurrent prison terms of
40 years, 30 years and 30 years,
respectively.

B.    Procedural Background

  On direct appeal, Winters argued that
(1) the trial court erred in failing to
sever his trial from that of his co-
defendants and (2) the evidence was
insufficient to sustain his convictions.
Winters’ appellate counsel did not raise
the issue of the bailiff’s ex parte
interference with the jury requests. The
Indiana Supreme Court rejected both of
Winters’ claims on the merits and
affirmed his convictions.

  Winters then filed a petition for state
post-conviction relief. His petition was
granted by an Indiana trial court, but
vacated and remanded by the Indiana court
of appeals. On remand, the trial court
reinstated Winters’ conviction. The court
of appeals affirmed and the Indiana
Supreme Court declined to review Winters’
case.

  Winters subsequently filed a petition
for writ of habeas corpus in the United
States District Court for the Southern
District of Indiana. The district court
denied the writ. Winters now appeals with
the following constitutional claims: (1)
he was denied effective assistance of
counsel at trial because his counsel
failed to present evidence of post-
traumatic stress disorder in order to
bolster his "defense of others" claim;
and (2) he was denied effective
assistance of appellate counsel because
his counsel failed to raise the issue of
the bailiff’s improper ex parte dealings
with the jury, and the district court and
the Indiana courts erred in reviewing
this claim by applying the standard
enunciated in Lockhart v. Fretwell rather
than that articulated in Strickland v.
Washington.

II.    DISCUSSION

  Federal courts may grant habeas corpus
when a person is held in custody under a
state court judgment in violation of the
United States Constitution. 28 U.S.C.
sec. 2254; Lowery v. Anderson, 225 F.3d
833, 838 (7th Cir. 2000). Federal habeas
relief is granted when a petitioner has
established that the state court
proceeding resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
established federal law, as determined by
the United States Supreme Court. 28
U.S.C. sec. 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). In
reviewing a decision of the district
court to deny habeas relief, we review
findings of fact for clear error and
findings of law de novo. Moffatt v.
Gilmore, 113 F.3d 698, 701 (7th Cir.
1997). Findings of fact made by the state
courts are presumed correct and are
rebutted only by clear and convincing
evidence. Foster v. Schomig, 223 F.3d
626, 631 (7th Cir. 2000).

A. Trial Counsel’s Failure to Raise Issue
of Petitioner’s Post-Traumatic Stress
Disorder

  The Sixth Amendment provides a defendant
with a right to counsel and serves to
protect the defendant’s right to a fair
trial. Strickland v. Washington, 466 U.S.
668, 684 (1984). These rights are
satisfied as long as counsel’s conduct at
trial is competent, and not so deficient
as to render the trial meaningless or
unreliable. Id. Winters argues that his
trial counsel failed to meet this
requisite standard.
  Under the framework set forth in
Strickland, to prevail on a claim of
ineffective assistance of counsel,
Winters must prove: (1) his trial
counsel’s representation was deficient;
and (2) the deficient performance so
prejudiced him as to deprive him of a
fair trial. Id. at 687-88; Lowery, 225
F.3d at 843. A failure to satisfy either
part of this standard defeats a
petitioner’s claim. Strickland, 466 U.S.
at 700. We indulge "a strong presumption
that counsel’s conduct falls within the
wide range of reasonable professional
assistance." Galowski v. Berge, 78 F.3d
1176, 1180 (7th Cir. 1996). A petitioner
"must overcome the presumption that,
under the circumstances, the challenged
action might be considered sound trial
strategy." Strickland, 466 U.S. at 689. A
petitioner will prevail only by
demonstrating a reasonable probability
that, "but for counsel’s unprofessional
errors, the result of the proceeding
would have been different." Id. at 694;
Lowery, 225 F.3d at 843.

  In the course of Winters’ post-
conviction proceedings, a psychologist at
an Indiana correctional facility examined
Winters and concluded that he suffered
from post-traumatic stress disorder
(PTSD) as a result of his military
service in Vietnam and that this disorder
would have had some influence on his
actions on the night he shot Officer Kee.
Another psychologist examined Winters and
arrived at a similar conclusion. Winters
argues that his trial counsel was
ineffective in failing to present this
evidence to bolster Winters’ claim of
"defense of others." He argues that
evidence of PTSD provided the best
support for his defense that he shot
Officer Kee because he reasonably
believed that Kee was going to seriously
injure his brother Jay. Therefore,
Winters argues, trial counsel’s failure
to raise this issue was unreasonable and
falls below the objective standard of
professional norms. We agree with the
district court that Winters’ claim is
without merit.

  In evaluating Winters’ ineffective
assistance claim, we must "reconstruct
the circumstances surrounding the
challenged conduct and determine whether
they were reasonable." Foster, 223 F.3d
at 631. Accordingly, we evaluate the
conduct from counsel’s perspective at the
time the relevant decision was made. Id.
If an attorney’s strategic decisions were
sound at the time they were made, these
decisions cannot support a claim of
ineffective assistance. Id.

  Winters’ trial took place in 1987. As
the state courts correctly pointed out
and the district court reiterated, knowl
edge of PTSD was not widely held at that
time. Presenting evidence of PTSD to
bolster a defense was not within the
prevailing professional norms at the time
of Winters’ trial. Simply put, Winters
has failed to set forth evidence that the
defense of PTSD was so interwoven into
criminal defense jurisprudence that,
under the first prong of the Strickland
standard, his counsel’s failure to raise
the issue fell below the objective
standard of professional norms at the
time of the trial.
  Even if we assume for the sake of
argument that Winters had established his
counsel’s performance was deficient,
Winters failed to demonstrate prejudice
to satisfy the second Strickland
requirement. To demonstrate prejudice,
Winters must show a reasonable
probability that but for counsel’s
errors, the result of the proceeding
would be different. Strickland, 466 U.S.
at 694. Winters has failed to do so.

  Winters rests his ineffective trial
counsel argument on the assertion that
evidence of the PTSD diagnosis would have
bolstered his "defense of others" claim.
In light of the overwhelming evidence of
guilt established by the government at
trial, Winters’ assertion is without
merit. Winters shot Officer Kee after the
argument between the officers and
Winters’ brothers. Winters initiated the
attack on Kee, approaching Kee from
behind and immediately fired a fatal
shot. These facts undermine any claim
that Winters acted in defense of his
brothers. Further, the evidence that Win
ters fled the state after the murder of
Officer Kee also supports the jury’s
guilty verdict and weakens any claim that
his attack on Officer Kee was justified.
Dill v. State, 741 N.E.2d 1230, 1232
(Ind. 2001). Winters has not established
that, had his counsel used the evidence
of PTSD to bolster his "defense of
others" claim, the result of the trial
would have been different. Accordingly,
based on these factual elements, Winters’
counsel did not so prejudice his trial
that the outcome is unreliable.

  Because we hold that Winters has failed
to satisfy the standard set forth in
Strickland for a claim of ineffective as
sistance of trial counsel, we hold that
the Indiana courts’ rejection of Winters’
claim was not unreasonable or contrary to
clearly established federal law.

B. Appellate Counsel’s Failure to Raise
Issue of Court’s Ex Parte Interference
with Jury

  Winters next contends that he received
ineffective assistance of appellate
counsel because his attorney failed
toappeal the issue of the bailiff’s ex
parte interference with the jury. This
claim was rejected by the Indiana courts.
Winters argues that the Indiana courts
erred in reviewing this claim because
they utilized the standard set forth in
Lockhart v. Fretwell, 506 U.S. 364
(1993), rather than the proper framework
set out in Strickland v. Washington, 466
U.S. 668 (1984). Winters claims that
under the Strickland standard, the
ineffectiveness of his appellate counsel
warrants a reversal of his conviction.

  We agree that the appropriate standard
for evaluating a claim of ineffective
counsel is the Strickland standard.
Williams v. Taylor, 529 U.S. at 390-91.
Our review of Winters’ petition does not
end here, however. Instead, once again,
we will review Winters’ claim using the
appropriate standard set forth in
Strickland.

  To prevail on a claim of ineffective
assistance of counsel, a petitioner must
prove both deficient performance and
prejudice. Strickland, 466 U.S. at 687-
88; Mason v. Hanks, 97 F.3d 887, 892 (7th
Cir. 1996). Appellate counsel’s
performance is deficient if counsel fails
to appeal an issue that is both obvious
and clearly stronger than one that was
raised. Williams v. Parke, 133 F.3d 971,
974 (7th Cir. 1997). It is not necessary,
however, that appellate counsel "raise
every non-frivolous issue under the sun."
Mason, 97 F.3d at 893. In addition, a
petitioner demonstrates the requisite
prejudice only when appellate counsel
fails to raise an issue that "may have
resulted in a reversal of the conviction,
or an order for a new trial." Id.

  In Winters’ case, the court bailiff
denied the jury’s first request by
writing "no" on the note. The record does
not indicate whether the jury received a
response to its second inquiry. Winters
argues that appellate counsel was
ineffective for not appealing the claim
that the bailiff improperly communicated
with the jury outside of his presence in
violation of his right to be present at
all critical stages of the prosecution.
Because this ex parte communication claim
does not warrant a reversal of conviction
or an order for new trial, his appellate
counsel was not ineffective and Winters’
argument fails.

  A defendant has a constitutional right
to be present at all critical stages of a
prosecution, but this right does not
extend to every interaction between the
court and the jury. United States v.
Gagnon, 470 U.S. 522, 526 (1985). An ex
parte communication between court staff
and the jury creates a rebuttable
presumption of error, but does not
constitute per se grounds for reversal.
Marsillett v. State, 495 N.E.2d 699, 709
(Ind. 1986). The appellant still carries
the burden of proving that the substance
of the communication resulted in
prejudice. Id. The prohibition against ex
parte communication between the court and
the jury is "designed to prevent the jury
from being improperly influenced by the
judge." Bouye v. State, 699 N.E.2d 620,
629 (Ind. 1998). When a jury requests
additional information or clarification
and the request is merely ignored or
denied, any inference of improper
influence or prejudice is rebutted.
Marsillett, 495 N.E.2d at 709. Under
these circumstances, any error by the
trial court is deemed harmless and there
is no basis for setting aside a jury
verdict. Pendergrass v. State, 702 N.E.2d
716, 720 (Ind. 1998).

  In Winters’ case, although the bailiff’s
failure to inform the judge of the jury’s
inquiries was inappropriate, it was
harmless error and does not warrant
reversal. Winters has not established
that the substance of the bailiff’s first
ex parte response was prejudicial to the
outcome of the trial. With respect to the
jury’s second note, without proof that
the bailiff communicated with the jury at
all, there is no basis for doubting the
reliability of the jury’s verdict.
Winters’ appellate counsel did raise two
other viable issues on appeal, and the
decision to omit the bailiff’s ex parte
interference from Winters’ appeal was
well within the objective standard of
professional norms and did not result in
any prejudice.

  Indeed, the Indiana courts did misapply
the Lockhart standard in analyzing
Winters’ claim. Nevertheless, our review
under the proper standard set forth in
Strickland renders the same result.
Winters fails to establish circumstances
that amount to ineffective assistance of
appellate counsel under the Strickland
framework. The Indiana courts did not act
unreasonably or contrary to established
federal law in refusing to reverse or set
aside Winters’ conviction.
III.   CONCLUSION

  For the foregoing reasons, we AFFIRM the
district court’s decision.

FOOTNOTE

/1 For purposes of evaluating Winters’ petition for
writ of habeas corpus, the facts set forth by the
Indiana Supreme Court are presumed correct. 28
U.S.C. sec. 2254(e).
