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

No. 02-3104
JAMES E. WARD,
                                          Petitioner-Appellee,
                              v.

JERRY L. STERNES,
                                       Respondent-Appellant.
                        ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
         No. 00-C-2145—Michael P. McCuskey, Judge.
                        ____________
    ARGUED JANUARY 15, 2003—DECIDED JULY 8, 2003
                   ____________

 Before MANION, KANNE, and DIANE P. WOOD, Circuit
Judges.
  KANNE, Circuit Judge. When asked “Are you black?” and
“Are you white?” by a neurologist, petitioner James E.
Ward, an African-American male, earnestly answered
“Yes” to both questions. Similarly, with “Yes” and “No”
answers Ward indicated that a hammer was good for both
cutting wood and pounding in nails, that good rubber
boots both keep water out and let water in, that two
pounds of flour weigh more than and less than one pound
of flour, and that both boats and stones sink in water.
Ward has a condition known as aphasia, resulting from
blunt head trauma he suffered in 1993, which manifests
itself in this disconnect between questions asked of Ward
and the answers he gives.
2                                               No. 02-3104

  In this appeal from the grant of Ward’s habeas corpus
petition, we ask whether an Illinois appellate court com-
mitted unreasonable error when it concluded that Ward’s
statement, “I guess, I don’t know,” constituted a know-
ing and intelligent waiver of his fundamental right to
testify at his trial for the 1994 murder of his wife. The
district court held that the state appellate court applied
an overly deferential standard of review to the trial court’s
ruling that “I guess, I don’t know” meant “Yes, I waive my
right to testify,” and erroneously supplanted trust in the
defense counsel’s recommendation that Ward not testify
for Ward’s personal understanding of his fundamental
rights. The state argues that in granting Ward’s motion, the
district court failed to give statutorily required deference
to the Illinois appellate court, which might have reached
a different conclusion than the district court would have,
but did not reach that conclusion unreasonably. Like
the district court, we find that the Illinois appellate court
committed unreasonable error when it upheld the trial
court’s ruling that Ward actually understood his right
to testify and personally, knowingly, and intelligently
waived that right. We therefore affirm.


                        HISTORY
  In the early morning hours of September 9, 1994, Suriego
Walker, Ward’s stepson, awoke to the sounds of scream-
ing coming from the living room of his house. When he got
there, Suriego saw his stepfather Ward stabbing his
mother Evelyn repeatedly with a kitchen knife. He strug-
gled with Ward and disarmed him. After he was subdued,
Ward rambled and mumbled, at times incoherently, at
times pleading with Suriego to kill him.
  For the better part of the previous evening in fact, Ward
had been wandering about the house incoherently ram-
bling, getting himself angry and calming himself down in
No. 02-3104                                              3

a repeating cycle. Ward started behaving this way after
losing a fight to Suriego’s cousin, Leroy Turner. We don’t
know why the fight broke out, only that it happened
while Ward was intoxicated, after he, Evelyn, and a friend,
Tony Clark, had been drinking beer throughout the after-
noon at the house. (Ward had a blood alcohol level of .234
at the time of his arrest.) We do know, however, that
the fight ended with Turner hitting Ward in the head
first with a chair and then with a brass object, knocking
Ward temporarily unconscious. When Ward came to, he
was bleeding from his temple. Over the next few hours, he
intermittently and violently accused his wife and the
others present of “jumping him.” It was after one of these
outbursts that Ward began stabbing Evelyn.
   Ward was arrested and charged with his wife’s murder.
On April 4, 1995, Ward was declared unfit to stand trial.
But at a hearing on February 21, 1996, Ward’s fitness
was deemed restored. His symptoms were judged to be
controllable through the use of psychotropic drugs, but the
fitness report cautioned that “one must exercise patience
and listen closely to what Ward is saying” as a result of
his language-processing handicap. On August 19, 1996,
Ward’s trial began.
  The only disputed issue at Ward’s trial was his sanity.
Because of an earlier, traumatic injury that Ward had
suffered in 1993, nine months before the murder, Ward
had sustained “very marked” abnormalities to the left
frontal and temporal lobes of his brain. Neurologists
testified at trial that the temporal lobe controls language
and that the frontal lobe governs inhibition. They fur-
ther testified that Ward’s temporal-lobe injury resulted in
his aphasia (as described above) and that the his frontal-
lobe injury severely impeded his ability to control his
impulses. The district court observed that it’s also pos-
sible that the additional injuries that Ward suffered on
the day of the killing inflicted further brain damage, as
4                                             No. 02-3104

Ward showed no ability to recall the events of that day
beyond his fight with Turner.
  The defense called two psychiatrists to testify that
Ward was legally insane when he killed his wife. Both
testified that Ward suffered from dementia as a result
of the 1993 blunt head trauma and that the dementia
made him unable to control or appreciate the criminality
of his conduct during his wife’s murder.
  In response, the state argued that Ward’s inability to
restrain his impulses on the day of the murder was
caused by his voluntary intoxication rather than any
mental defect. On cross-examination, one of the defense’s
psychiatrists, Dr. Lawrence Jeckel, agreed with the pros-
ecution’s suggestion that alcohol was a “necessary compo-
nent” of Ward’s inability to control his actions. But the
other psychiatrist, Dr. Arthur Traugott, testified that
Ward’s dementia would have made it highly unlikely
that he would have been able to control his violent im-
pulses towards his wife even if he had been sober. Dr.
Traugott further opined that, due to his condition, Ward
probably lacked the ability to control his use of alcohol
or drugs anyway. The state introduced no expert testi-
mony to rebut that of Drs. Traugott and Jeckel.
  On August 21, 1996, the defense concluded its case
without putting Ward on the stand. The state questioned
whether Ward had voluntarily waived his right to testify
and requested that the court make a record of the waiver.
Ward’s counsel admitted that it wasn’t his client, but
he who had made the decision to keep Ward off the
stand. He further told the court that he didn’t believe he
could have an informed discussion with Ward about the
decision, since most of his prior exchanges with his client
were one-sided, generating only an occasional “uh-uh”
response from Ward. On the court’s suggestion, however,
defense counsel agreed to discuss the matter with him.
No. 02-3104                                                 5

  In chambers the next day, the court asked Ward wheth-
er his attorney had talked to him about not testifying in
court and whether he agreed with that decision:
    THE COURT: [Defense counsel] has indicated that
    it is his best advice and professional judgment that
    you not be called to testify yourself and he stated that
    he has talked to you about that. Is that true?
    WARD:     Yeah.
    THE COURT: Do you agree with that?
    WARD: I don’t know what’s all going to happen to me.
    I just been sitting around here. My wife is gone and my
    kid is gone and they beat me up all the time. I don’t
    know what I’m going to do now.
    THE COURT: Well, we are really not here to discuss
    that. We just want to make sure that you’re in agree-
    ment that it is a good decision that you not testify.
    WARD:     I guess. I don’t know.
    THE COURT: [After dismissing Ward] That’s the
    best we will ever do.
Satisfied with this colloquy, the trial court allowed the
defense to rest without putting Ward on the stand. The jury
rejected Ward’s insanity defense and returned a ver-
dict finding Ward guilty, but mentally ill (“GBMI verdict”).
  Immediately after trial, Ward asked his attorney why
he had not been allowed to testify. Counsel then filed a
post-trial motion alleging that Ward had not validly
waived his right to testify, because he had not under-
stood his counsel’s advice.
  A hearing on this post-trial motion was held on Septem-
ber 23, 1996. The court asked Ward whether he recalled
being asked if he wanted to testify at trial. He replied, “No,
I didn’t know. I just said yes. That’s all I know. I didn’t
6                                                    No. 02-3104

know what I can remember, what they saying, so just
said yes.” When asked whether he knew “what it means to
testify,” he replied, “I don’t know. I’m trying to find some-
thing to tell me what I know it is, but I couldn’t under-
stand what it is.” So the court asked, “Did you want to
tell your story?” and Ward replied, “Yes.”
  The court then asked Ward why he didn’t tell his story.
Instead of giving a reason, Ward told the court his story,
and the transcript of the hearing is filled with four pages
of Ward’s repeating account of the events that evening,
which starts and ends with the fight between him and
Turner and never describes his wife’s murder. The court
cut him off, and after hearing arguments, denied Ward’s
post-trial motion:
     It was clear that [defense counsel] had advised [Ward]
     strongly not to testify. We went back in chambers
     and had the defendant back there and questioned him
     about that, and he responded in a way that he has
     responded to most questions from the Court or coun-
     sel during the course of these proceedings, that yes,
     he was just trying to do the best he could and he
     would go along with that. I found at the time that
     he understood what [defense counsel was] talking
     about . . . and that in his own way he concurred in
     that, and I have no reason to change my mind at this
     time.
    Ward received a 40 year sentence.1 On direct appeal,


1
   Under Illinois law, a defendant convicted under a GBMI verdict
is subject to any sentence that could have been imposed under a
guilty verdict for the same offense, including the death penalty.
People v. Morris, 603 N.E.2d 1196, 1200 (Ill. Ct. App. 1992). If
found GBMI, the defendant is remanded to the custody of the
Illinois Department of Corrections. The Department must hold
                                                     (continued...)
No. 02-3104                                                     7

Ward argued (1) that the jury’s rejection of the insanity
defense was against the manifest weight of the evidence;
(2) that he did not knowingly and voluntarily waive his
right to testify; (3) that the Illinois statute permitting
a GBMI verdict (725 ILL. COMP. STAT. ANN. 5/115-4(j)
(1996)) was unconstitutional; and (4) that the trial court
erred in giving the jury a nonpattern instruction on volun-
tary intoxication. The Illinois appellate court rejected
all these challenges and affirmed Ward’s conviction. Peo-
ple v. Ward, No. 4-96-0768 (Ill. App. Ct. July 31, 1998).
On August 25, 1998, the Illinois appellate court denied
Ward’s petition for rehearing, and Ward’s petition for
leave to appeal to the Illinois Supreme Court was denied
on June 2, 1999. His petition to the U.S. Supreme Court
was denied on October 12, 1999. Having exhausted the
remedies available through the state, Ward brought this
habeas corpus petition before the district court under 28
U.S.C. § 2254, arguing solely that he did not make a
valid waiver of his fundamental constitutional right to
testify. The district court granted the writ, see Ward v.
Sternes, 209 F. Supp. 2d 950 (C.D. Ill. 2002), and this
appeal by the government followed.



1
  (...continued)
a hearing inquiring into the current need for treatment of the
defendant’s mental illness and, as a result, may transfer custody
of the defendant to the Department of Human Services for
hospitalization. See 730 ILL. COMP. STAT. ANN. 5/5-2-6(c) (2003).
Should the defendant no longer require hospitalization, he is
returned to prison to serve out the remainder of his sentence. Id.
5/5-2-6(d)(1). Conversely, should the need for hospitalization
continue beyond the expiration of his sentence, the state may
seek to have the defendant involuntarily committed. Id. 5/5-2-
6(d)2). The record in this case indicates that Ward is currently
in the custody of the Illinois Department of Corrections as a
prisoner at the Dixon Correctional Center.
8                                                No. 02-3104

                        ANALYSIS
  Under the statutory framework governing federal habeas
corpus relief before the passage of the Antiterrorism
and Effective Death Penalty Act of 1996, an issue of
paramount importance for a federal court to consider in
ruling upon a petition was whether the petitioner’s chal-
lenge raised a question of fact or a question of law. How
the claim was classified influenced the level of deference
due the state court decision by the federal court. A deter-
mination of fact reasonably based upon the record could
be set aside by the federal court only if the petitioner
presented clear and convincing evidence that the fact
was determined incorrectly. 28 U.S.C. § 2254(d) (1995).
Questions of law, however, were afforded no deference,
and on federal habeas review a court would resolve those
issues de novo. See Thompson v. Keohane, 516 U.S. 99, 107-
10 (1995).
  But since many square issues did not fit neatly into the
round holes of pure fact or pure law, the lower courts
struggled over what to do with so-called mixed questions
of law and fact. Were these mixed questions to be re-
viewed deferentially because they were based in part
upon the resolution of factual issues made by the state
trial courts? Or should federal courts have the province
to review the application of federal constitutional prin-
ciples to individual facts de novo in order to maintain con-
trol of and to clarify those legal principles? Entering the
fray, the U.S. Supreme Court in a series of cases at-
tempted to delineate principles by which federal courts
could classify a petitioner’s challenges. Id. at 110-12; Miller
v. Fenton, 474 U.S. 104, 111-14 (1985); Brewer v. Williams,
430 U.S. 387, 396 & n.4 (1977); cf. Ornelas v. United
States, 517 U.S. 690 (1996) (tackling the fact-law distinc-
tion within the context of what standard of review gov-
erns a defendant’s direct appeal of a district court’s find-
ing that arresting officers had reasonable suspicion to
No. 02-3104                                                 9

stop and question defendants and had probable cause to
search them).
  According to the Court, the distinction would turn
upon how greatly the challenged decision rested upon
subsidiary findings of “basic, primary, or historical facts”
(entitled to deference) as opposed to the application of
constitutional principles to those facts (no deference).
Thompson, 516 U.S. at 111-12. In other words, the Court
clarified that trial-court findings regarding “what hap-
pened” issues may warrant a presumption of correctness,
but that its resolutions of “ultimate questions” were enti-
tled to no deference because of their “uniquely legal di-
mension.” Id. (citing Miller v. Fenton, 474 U.S. 104, 115-16
(1985)). Thus, a federal court on habeas review was free
to decide ultimate questions—such as whether a sus-
pect’s confession was rendered voluntarily, whether coun-
sel’s assistance was constitutionally defective, and wheth-
er a defendant waived his Sixth Amendment right to
counsel—without deference to the state court’s prior
resolution. Id. at 112 (citing Miller, 474 U.S. at 116,
Strickland v. Washington, 466 U.S. 668, 698 (1984), and
Brewer, 430 U.S. 387, 397 & n.4). Even so, the Court
admitted that the proper characterization of questions
would remain “slippery.” Id. at 464 (observing that the
Court had previously extended § 2254(d)’s presumption
of correctness to questions whose resolution extended
beyond mere determinations of “what happened,” such as
competency findings and juror impartiality, when it de-
pended heavily on the trial court’s appraisal of witness
credibility and demeanor) (citing Maggio v. Fulford, 462
U.S. 111, 117 (1983) (per curiam) and Wainwright v. Witt,
469 U.S. 412, 429 (1985)).
  Under this slippery pre-AEDPA framework, we had
observed that “whether a waiver is intelligently made is
a factual question, because whether an individual under-
stood his or her rights is an inquiry into his state of mind.”
10                                              No. 02-3104

Perri v. Director, Dep’t of Corrections, 817 F.2d 448, 451-52
(7th Cir. 1987) (observing that whether petitioner un-
derstood and knowingly and intelligently waived his
Miranda rights is a question of fact entitled to pre-AEDPA
§ 2254(d) presumption) (citing Miller, 474 U.S. at 113). But
see United States v. Alton Mills, 122 F.3d 346, 349-50 & n.3
(7th Cir. 1997) (deciding that ultimate question of the
voluntariness of the waiver of Miranda rights subject
to de novo review on direct appeal and collecting cases
regarding the same). Such a classification was necessary
at the time to bring the question within then-§ 2254(d)’s
deferential review. See Miller, 474 U.S. at 114-15 (discuss-
ing the appropriateness of resolving close questions con-
cerning the fact-law distinction in favor of extending
deference to the trial court where the issue involves the
credibility of witnesses and turns upon an evaluation of
demeanor, notwithstanding the “intimate connection”
between such determinations and ultimate constitutional
guarantees).
   In a post-AEDPA world, however, where state court
adjudications on the merits of petitioner’s challenges
are entitled to deference regardless of whether we classify
them as questions of fact, law, or mixed, the outset class-
ification is of diminished importance. Under the Act, a
federal court may grant the writ of habeas corpus if the
challenged state-court decision either “was contrary to, or
an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1) (2003). Otherwise, a
federal court may set aside a state court “decision that
was based on an unreasonable determination of the facts
in light of the evidence presented.” 28 U.S.C. § 2254(d)(2).
Along the way, determinations of factual issues made by
the state court are presumed correct in federal habeas
corpus proceedings, unless the petitioner rebuts that
presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
No. 02-3104                                                11

  To run afoul of § 2254(d)(1)’s contrary-to standard, the
state court must have either (i) adopted a rule that contra-
dicts the governing law of the U.S. Supreme Court or (ii)
on a set of facts materially indistinguishable from those
at issue in the applicable Supreme Court precedent,
reached a different result. Williams v. Taylor, 529 U.S. 362,
405 (2000); Washington v. Smith, 219 F.3d 620, 628 (7th
Cir. 2000). A state-court decision also may be set aside
under § 2254(d)(1) if the state court correctly identified
the governing Supreme Court precedent, but unrea-
sonably applied it to the unique facts of the prisoner’s case.
Williams, 529 U.S. at 405. The Supreme Court has ex-
plained that an unreasonable application is not the same
thing as an erroneous application, see id., even if the error
is clear, see Lockyer v. Andrade, 123 S. Ct. 1166, 1171-72
(2003). Instead, the state court’s decision must have
been not only erroneous, but objectively unreasonable. Id.
  How then should federal courts distinguish between
reasonably and unreasonably erroneous applications of
clearly established Supreme Court precedent? The stan-
dard favors conventionalism over formalism. See generally
Todd E. Pettys, Federal Habeas Relief and the New Toler-
ance for “Reasonably Erroneous” Applications of Federal
Law, 63 OHIO ST. L.J. 731 (2002). Which is to say, it takes
for granted that for a given set of facts, there exists the
possibility of “several equally plausible outcomes.” Boss v.
Pierce, 263 F.3d 734, 742 (7th Cir. 2001) (citing Hennon v.
Cooper, 109 F.3d 330, 335 (7th Cir. 1997), and quoting
Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)). Our
task is to uphold those outcomes which comport with
recognized conventions of legal reasoning and set aside
those which do not. See Hardaway v. Young, 302 F.3d 757,
762 (7th Cir. 2002) (“AEDPA requires that [the state-court
decision] be ‘unreasonable,’ which means something like
lying well outside the boundaries of permissible differ-
ences of opinion.”); Hall, 106 F.3d at 749 (opining that
12                                              No. 02-3104

the writ should be granted when the decision is “at such
tension with governing U.S. Supreme Court precedents,
or so inadequately supported by the record, or so arbi-
trary” as to be unreasonable).
  Unreasonableness also serves as the touchstone against
which state court decisions based upon determinations
of fact in light of the evidence presented are evaluated.
28 U.S.C. § 2254(d)(2). As is the case under § 2254(d)(1),
a petitioner’s challenge to a decision based on a factual
determination will not succeed if the petitioner merely
evidences that the state court committed error. Instead,
he must further establish that the state court commit-
ted unreasonable error. And § 2254(e)(1) provides a me-
chanism by which the petitioner can prove that unreason-
ableness. If the petitioner can show that the state court
determined the underlying factual issue against the
clear and convincing weight of the evidence, the peti-
tioner has not only established that the court committed
error in reaching a decision based on that faulty factual
premise, but has also gone a long way towards proving
that it committed unreasonable error. A state court deci-
sion that rests upon a determination of fact that lies
against the clear weight of the evidence is, by definition,
a decision “so inadequately supported by the record” as
to be arbitrary and therefore objectively unreasonable. Hall,
106 F.3d at 749; cf. Miller-El v. Cockrell, 123 S. Ct. 1029,
1041-42 (2003) (rejecting the Fifth Circuit’s requirement
that a petitioner prove the unreasonableness of the state
court’s decision by clear and convincing evidence).
  In sum, regardless if we classify Ward’s challenge as
raising an issue of pure fact, pure law, or a mixed question
of law and fact, we are required under the AEDPA to re-
view the state court’s adjudication on the merits of his
claim deferentially and set the decision aside only if the
court committed unreasonable error. See Torres v. Prunty,
223 F.3d 1103, 1107-08 (9th Cir. 2000) (evaluating under
No. 02-3104                                                 13

§ 2254(d)(2)’s “unreasonable determination” clause the
petitioner’s claim that the state court committed unconsti-
tutional error under the rationale of Pate v. Robinson, 383
U.S. 375, 385 (1966), in failing to hold a competency
hearing, but observing that its analysis would proceed in
similar fashion under § 2254(d)(1)’s “unreasonable ap-
plication” clause; under either standard, focus of habeas
inquiry is whether the state court’s decision was objectively
unreasonable); Rivera v. Sheriff of Cook County, 162 F.3d
486, 489 (7th Cir. 1998) (“Whether the meaning of Judge
Strayhorn’s oral statement is a question of fact or of state
law, the upshot is the same: a federal court may not
reach an independent conclusion on the subject, but must
respect the state court’s resolution.”). In doing so, we keep
in mind that “deference does not imply abandonment or
abdication of judicial review,” nor does it “by definition
preclude relief.” Miller-El, 537 U.S. at 1041 (“A federal
court can disagree with a state court’s credibility deter-
mination and, when guided by the AEDPA, conclude that
the decision was unreasonable or that the factual premise
was incorrect by clear and convincing evidence.”); see
also Mendiola v. Schomig, 224 F.3d 589, 592-593 (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.”); Estock v. Lane, 842 F.2d 184, 186-
87 (7th Cir. 1988) (state court’s competency finding not
entitled to pre-AEDPA § 2254(d)’s presumption of correct-
ness where the factual determination was inadequately
supported by the record).
  We review the district court’s decision to grant habeas
relief de novo. Anderson v. Cowan, 227 F.3d 893, 896 (7th
Cir. 2000) (citing Washington v. Smith, 219 F.3d 620, 627
(7th Cir. 2000), and Lieberman v. Washington, 128 F.3d
1085, 1091 (7th Cir. 1991)). Therefore, we direct our anal-
ysis to an examination of the Illinois appellate court’s
decision.
14                                              No. 02-3104

  The Illinois appellate court correctly identified the
governing U.S. Supreme Court precedent regarding waivers
of the right to testify. It noted that a defendant’s right to
testify was fundamental. See Rock v. Arkansas, 483 U.S. 44,
52-53 & n.10 (1987) (“[A]n accused’s right to present his
own version of events in his own words” is “[e]ven more
fundamental to a personal defense than the right of self-
representation”); see also Rogers-Bey v. Lane, 896 F.2d 279,
283 (7th Cir. 1990). And it noted that the right is personal
to the accused, and not capable of being waived by counsel
on the defendant’s behalf. See Jones v. Barnes, 463 U.S.
745, 751 (1983). Further, it concluded that Ward’s personal
waiver of this fundamental right, which protects the
fairness of the criminal proceeding, must have been know-
ing and intelligent to be valid. See Schneckloth v.
Bustamonte, 412 U.S. 218, 241 (1973) (“A strict standard of
waiver has been applied to those rights guaranteed to a
criminal defendant to insure that he will be accorded the
greatest possible opportunity to utilize every facet of the
constitutional model of a fair criminal trial.”); see also
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (“[C]ourts
indulge in every reasonable presumption against waiver of
fundamental rights, and . . . we do not presume acquies-
cence in the loss of fundamental rights.”) (quotation
omitted). Its decision was therefore not contrary to clearly
established Supreme Court precedent.
  But in determining that Ward’s statement “I guess, I
don’t know” constituted a personal waiver that Ward made
knowingly and intelligently, the Illinois appellate court
committed unreasonable error. In reaching its conclusion,
the Illinois appellate court recognized that “the record
makes it clear that [Ward] had little understanding of
the strategic implications of his decision.” Ward, slip op.
at 22. Nevertheless, applying the manifest-weight-of-the-
evidence standard of review applied at the time in Illinois
Miranda wavier precedent, see People v. Bernasco, 562
No. 02-3104                                                    15

N.E.2d 958 (Ill. 1990), and People v. Scott, 594 N.E.2d 217
(Ill. 1992),2 it refused to discuss that evidence or credit it
against the trial court’s conclusory determination that
Ward acquiesced in his counsel’s decision. Ward, slip op. at
22. Instead, the Illinois appellate court concluded that if
a defendant’s silent acquiescence of his counsel’s recom-
mendation that he not testify is sufficient to support an
implied waiver, an express acceptance of an attorney’s
advice was sufficient to support an express waiver. Ward,
slip op. at 21-22 (citing People v. Raso, 602 N.E.2d 53, 56
(Ill. 1992)). This analysis led the Illinois appellate court,
like the trial court before it, inappropriately to substitute
the wisdom of Ward’s counsel’s strategic decision that
he not testify for the requirement that Ward personally,
knowingly, and intelligently waive his right. The result
is a decision that lies “at such tension” with governing
Supreme Court precedent and that is “so inadequately
supported by the record” as to be arbitrary and unreason-
able whether evaluated under the strictures of § 2254(d)(1)
or § 2254(d)(2) and (e)(1).
  The uncontroverted trial testimony was that Ward’s brain
injuries severely disrupted his ability to think, reason, take
in verbal information, and understand and use language
to express his understanding. As the district court noted,
“[h]is individual answers to questions posed to him by
physicians, his attorney, or the court may have the sem-
blance of coherence and validity, in the sense that they
are possible answers to the questions asked. But taken



2
   Illinois now in accordance with U.S. Supreme Court and
Seventh Circuit precedent recognizes that the “ultimate question”
regarding the voluntariness of a Miranda waiver is entitled to
de novo review. In re G.O., 727 N.E.2d 1003, 1009-10 (Ill. 2000)
(citing Ornelas v. United States, 517 U.S. 690, 697-99 (1996), and
United States v. D.F., 115 F.3d 413, 417-19 (7th Cir. 1997)).
16                                                   No. 02-3104

together, they make no sense.” Sternes, 209 F. Supp. 2d
at 960. Although Ward was deemed competent to stand
trial,3 his fitness report cautioned that to overcome this
severe language-processing deficit, one must expend an
inordinate amount of patience with Ward.
  Simply put, the trial court did not exercise that level of
extraordinary patience in extracting Ward’s purported
waiver. Under these circumstances, an in-chambers con-
ference on the subject of Ward’s understanding of his
rights was not an exceptional measure to be credited to
the court’s patience, but was a required procedure. In other
words, there was an indication that Ward was prevented
by his own mental deficiencies from exercising his fun-
damental right to testify, which then necessitated further
inquiry from the court. See United States v. Manjarrez, 258
F.3d 618, 623-24 (7th Cir. 2001). And more than an equivo-
cal, “I guess, I don’t know,” in response to the trial court’s
question of whether Ward was “in agreement” with his
counsel’s “best advice and professional judgment that [he]
not be called to testify [himself]” was required to ensure
an accused with severe brain damage was knowingly
and intelligently waiving a fundamental right. In the
abstract, the words themselves are inconclusive, equally
capable of classification as words of assent or of reluctance.


3
  As the dissent notes, Ward’s competency is not at issue in the
appeal. See post at 24-25. The question of whether Ward pos-
sessed the capacity to understand the nature of his rights and
participate in his defense is an altogether different question than
whether Ward, in a given instance, actually intended to relinquish
or abandon a known right or privilege, see Johnson, 304 U.S.
at 464. Although the former implies that Ward was able to co-
operate with his counsel in his defense, the latter requires the
totality of the circumstances to demonstrate that he not only
was able, but willing; that is, he must have clearly understood
and concurred with his counsel’s decision.
No. 02-3104                                                17

Yet, absent any evidence that the speaker had mental
handicaps and a severe language-processing deficiency, we
would accept a trial court’s interpretation given that
court’s superior position to observe the speaker and infuse
meaning into the statement. Here, however, where it
was known that the defendant’s ability to express him-
self through language was severely compromised, it was
unreasonable to assign the statement meaning without
the benefit of further inquiry. By quickly deciding “that’s
the best we’ll ever do,” the trial court concluded its in-
quiry prematurely and accepted what was an at-best
ambiguous statement for a conclusive waiver.
  We do not come to this conclusion only through an
admittedly cold reading of that isolated proceeding’s
transcript. We note that later, when the trial court made
an effort to explain his right in simpler terms, Ward
expressed a modicum of understanding. Granted, given
his aphasia, we are reluctant to attribute any more mean-
ing to Ward answering “Yes” to the trial court’s question,
“Did you want to tell your story?” than anyone could
reasonably inject into the facially ambiguous statement “I
guess, I don’t know.” But we know that by this time
Ward had understood that he didn’t tell his story at
trial—immediately after trial, he asked his attorney why
he didn’t have that chance. And faith in direct “Yes”
answers aside, Ward jumped at the opportunity to tell
his story to the judge in chambers, which indicated his
continued desire to speak.
  Nevertheless, instead of ensuring that Ward personally
waived his right knowingly and intelligently, the Illinois
appellate court—like the trial court before it—relied too
heavily on Ward’s counsel’s strategic decision to preclude
Ward from testifying. The appellate court noted that the
decision to waive the right to testify “should be made with
the advice of counsel,” Ward, slip op. at 20 (citing People v.
18                                               No. 02-3104

Smith, 680 N.E.2d 291, 303 (Ill. 1997)), an observation that
mirrored the focus of the trial court’s initial inquiry, which
was to secure Ward’s adoption of his counsel’s strategy.
True, prudent defendants are often best served by listening
to the advice of learned counsel. No matter how sound a
counsel’s advice may be, however, the decision to waive a
fundamental right rests securely with the defendant. It
simply cannot be trumped by a defense counsel’s advice,
even if that advice is honestly in the defendant’s best
interest.
  And unwitting cooperation with counsel does not
equate to a knowing, intelligent waiver. We agree that
a court may correctly find wavier when “circumstances
indicate that defendant acquiesced in the trial strategy
employed by his counsel.” Id. at 21 (quoting People v.
Raso, 602 N.E.2d 53, 56 (Ill. 1992)). We understand the
prudence of a rule that prevents criminal defendants
from making unsubstantiated, self-serving, and im-
plausible post hoc arguments that they were strong-
armed by counsel into making the decision not to testify.
Underwood v. Clark, 939 F.2d 473, 475 (7th Cir. 1991); see
also Manjarrez, 258 F.3d at 624 (finding that defendant’s
repeated affirmative responses to the court’s frequent
inquiries, issued through an interpreter, regarding wheth-
er the defendant understood and voluntarily waived his
right to testify overcame his post hoc, unsubstantiated
claim that he had not in fact understood his rights); Lee
v. Murphy, 41 F.3d 311, 315 (7th Cir. 1994) (presump-
tion against waiver overcome by “overwhelming evidence”
that counsel conferred with the defendant and that the
defendant acknowledged that by his own “free will” he
concurred in the decision not to testify). Moreover, we
continue to be aware of the “grave practical difficulty
in establishing a mechanism that will protect a criminal
defendant’s personal right . . . to testify in his own behalf
without rendering the criminal process unworkable.”
Underwood, 939 F.3d at 475.
No. 02-3104                                               19

   But far from making unsubstantiated, implausible, and
merely self-serving claims in this case, Ward has shown
that the totality of the circumstances evidences that he
didn’t knowingly acquiesce in his counsel’s decision.
Although a direct, unequivocal answer to a trial court’s
colloquy will suffice to find a knowing, intelligent waiver,
see, e.g., Lee, 41 F.3d at 315, none was given here. Ward’s
aphasia prevents a conclusive interpretation of the facially
ambiguous statement, “I guess, I don’t know,” and all the
other evidence in this case suggests that Ward did not
personally, knowingly, and intelligently waive his right.
Ward’s counsel warned the court at the outset that he
was making the decision to keep Ward off the stand
and that he was skeptical of his client’s ability to make
a knowing, intelligent waiver. That skepticism was con-
firmed when Ward asked his counsel immediately after
trial why he hadn’t had the chance to tell his story. Fur-
thermore, Ward continued to express this desire to tell
his story during the hearing on his post-conviction mo-
tion, when he used that opportunity to tell it to the judge.
We recognized in Manjarrez that there may be cases
where the “defendant’s conduct clearly indicates a fun-
damental lack of understanding regarding the meaning
of the right to testify and/or the consequences of waiving
it,” and for all the reasons mentioned this is such a
case. Manjarrez, 258 F.3d at 625. We therefore conclude
that the Illinois appellate court’s decision finding waiver
under these circumstances was unreasonable error in
light of governing Supreme Court precedent that re-
quires personal, knowing, and intelligent waivers of fun-
damental rights.
  Still, “[e]ven if the petitioner demonstrates constitution-
al error . . . he or she still may not be entitled to
habeas relief where such error is deemed harmless; that
is, could not have had a substantial and injurious effect
or influence on the jury’s verdict.” Harding v. Walls, 300
20                                               No. 02-3104

F.3d 824, 828 (7th Cir. 2002) (citing O’Neal v. McAninch,
513 U.S. 432, 436 (1995)). As the district court noted, “[n]ot
all constitutional error fatally infects a trial.” Sternes, 209
F. Supp. 2d at 960 (citing Arizona v. Fulminante, 499 U.S.
279, 307 (1991)). Instead, we undertake a harmless-
error analysis to determine whether the verdict should
be allowed to stand despite constitutional error. See, e.g.,
Ortega v. O’Leary, 843 F.2d 258, 262 (7th Cir. 1988) (hold-
ing deprivation of the right to testify subject to harmless-
error analysis).
   Here, the district court found that the error was not
harmless beyond a reasonable doubt, see Chapman v.
California, 386 U.S. 18 (1967), nor could it say “with fair
assurance, after pondering all that happened . . . , that
the judgment was not substantially swayed by the er-
ror,” Kotteakos v. United States, 328 U.S. 750, 765 (1946).
The state doesn’t challenge this finding and, thus, has
waived the argument that the error was harmless. In
any event, we agree with both the district court and the
Illinois appellate court that the question of Ward’s sanity
was “closely balanced,” and that had it not been for the
evidence of Ward’s intoxication, the jury’s verdict might
have been set aside as against the manifest weight of the
evidence. Sternes, 209 F. Supp. 2d at 961 (quoting Ward,
slip op. at 13). Given this, we agree with the district
court’s conclusion that had the jury been given the op-
portunity to observe Ward testify while sober yet still
exhibiting these signs of his mental deficiencies, it is
conceivable that the jury would have given more credence
to the expert psychiatric testimony and particularly Dr.
Traugott’s opinion that Ward’s brain injury alone, regard-
less of his intoxication, would have rendered him in-
capable of conforming his actions to the law. On this
close question, the inability to hear Ward testify was not
harmless error.
No. 02-3104                                              21

                     CONCLUSION
   The Illinois appellate court’s affirmance of the trial
court’s determination that Ward waived his right to tes-
tify was unreasonable error in light of clearly established
Supreme Court precedent requiring personal, knowing,
and intelligent waivers of fundamental rights. The deci-
sion of the district court to grant the writ and vacate
Ward’s conviction is therefore AFFIRMED.




  MANION, Circuit Judge, dissenting. This is undeniably
a difficult case. James Ward clearly had mental deficien-
cies. Because he suffered from aphasia, a condition result-
ing from blunt head trauma, he had to be tested to deter-
mine if he was competent prior to his trial for the murder
of his wife, Evelyn. At his fitness hearing on February 21,
1996, the parties stipulated to the contents of a DMHDD
(“Department of Mental Health and Developmental Dis-
abilities”) report stating that Ward was fit to stand trial.
The report concluded that:
    Defendant understands the reason for his charge and
    its seriousness and is ready and motivated to return to
    court. He has sufficient knowledge about the court
    system as it pertains to his case. He understands
    the role functions of the court officers and is now able
    to cooperate with counsel in his defense. We consider
    him psychologically fit to stand trial.
  A finding of competency requires that a defendant may
not possess a mental condition “such that he lacks the
capacity to understand the nature and object of the pro-
ceedings against him, to consult with counsel, and to
22                                                  No. 02-3104

assist in preparing his defense.” Drope v. Missouri, 420
U.S. 162, 171 (1975). Without a doubt, Ward falls at the
low end of the spectrum of competency. His report cau-
tioned that “one must exercise patience and listen closely
to what [Ward] is saying, as a result of his severe handi-
caps due to his earlier brain injury.”
  The question now on appeal is whether Illinois state
courts were reasonable in finding that during the trial
Ward knew what he was doing and agreed to waive his
right to testify. The Illinois trial court determined that
when Ward responded “I guess, I don’t know,” during an
in camera discussion, he was expressing his assent to
his waiver of his right to testify.1 On appeal the Illi-
nois appellate court then deferred to this finding when
deciding whether or not this statement justified a finding
of a knowing and intelligent waiver.2 The district court
disagreed and granted Ward’s petition for habeas corpus,
holding that because Ward lacked a basic understanding
of the right to testify, the Illinois Appellate Court erred
in finding that his waiver of that right was knowing
and intelligent. However, because the Illinois Appellate
Court reasonably applied relevant federal law to the
facts of this case, I respectfully dissent and would re-
verse the district court’s grant of habeas corpus.



1
  At a post-trial proceeding, the trial court judge conducted a
hearing as to whether Ward had executed a knowing and intelli-
gent waiver. After hearing arguments, the trial court specifically
concluded that Ward understood what his attorney was ask-
ing him and that he assented to the waiver.
2
  The Illinois Appellate Court found that the proper standard of
review was whether the trial court’s ruling was against the
manifest weight of the evidence, citing the Illinois Miranda
waiver cases, People v. Bernasco, 562 N.E.2d 958 (1990), and
People v. Scott, 594 N.E.2d 217 (1992).
No. 02-3104                                                     23

  Under the AEDPA federal courts give deference to state
courts with respect to claims that were adjudicated on
the merits. 28 U.S.C. § 2254(d). To procure habeas relief
under the AEDPA, a petitioner is required to show that
state court determinations under review are either “con-
trary to” or employ an “unreasonable application of” federal
law as determined by the United States Supreme Court.
§ 2254(d)(1). “Under the ‘unreasonable application’ clause,
a federal habeas court may grant the writ if the state
court identifies the correct governing legal principle
from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams v.
Taylor, 529 U.S. 362, 413 (2000).3 The Supreme Court
has explained that under the unreasonable application
standard,
    a federal habeas court may not issue the writ simply
    because that court concludes in its independent judg-
    ment that the state-court decision applied [a Su-
    preme Court case] incorrectly. See Bell v. Cone, 535
    U.S. 685, 699 (2002); Williams, supra, at 411. Rather,
    it is the habeas applicant’s burden to show that the
    state court applied [that case] to the facts of his case
    in an objectively unreasonable manner.
Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per
curiam). In determining whether or not the state court’s
application of the law to the facts of a case was objec-
tively unreasonable, state court factual findings are pre-




3
   A petitioner may also attack a state court’s adjudication on the
grounds that it is based “on an unreasonable determination of the
facts,” § 2254(d)(2), but such attacks are accompanied by a
rigorous burden of proof: state court factual findings are pre-
sumed to be correct unless the petitioner rebuts the presump-
tion with “clear and convincing” evidence. § 2254(e)(1).
24                                                    No. 02-3104

sumed to be correct. 28 U.S.C. § 2254(e)(1).4 The court
concedes that the Illinois Appellate Court followed the
correct law, i.e., a waiver must be knowing and intelligent,
but holds that it did so unreasonably because it relied
too heavily on Ward’s counsel’s strategic decision of pre-
cluding Ward’s testimony and improperly credited Ward’s
ambiguous statement, “I guess, I don’t know,” as a waiver
of his right.
  When a waiver is made in the presence of the court,
such as the waiver was in this case, deference to the
trial court’s determinations, as mandated by AEDPA, is
clearly important because the court has made credibility
and state of mind determinations that it is in the best
position to make. See Lewis v. Fuchs, 964 F.2d 670, 674-76
(7th Cir. 1992) (noting that a state trial court judge is in
the best position to determine a criminal defendant’s
state of mind when executing a waiver of his constitu-
tional rights after being questioned by the court). Deferen-
tial review of this type of fact intensive question is war-
ranted when it appears that a trial court is “ ‘better posi-
tioned’ than the appellate court to decide the issue in
question or that probing appellate scrutiny will not con-
tribute to the clarity of legal doctrine.” Salve Regina College
v. Russell, 499 U.S. 225, 233 (1991).
  As noted earlier, the report on Ward’s competency to
stand trial cautioned that “one must exercise patience
and listen closely to what he was saying due to his severe


4
    Section 2254(e) (1)provides in pertinent part:
      In a proceeding instituted by an application for a writ of
      habeas corpus by a person in custody pursuant to the judg-
      ment of a State court, a determination of a factual issue made
      by a State court shall be presumed to be correct. The appli-
      cant shall have the burden of rebutting the presumption
      of correctness by clear and convincing evidence.
No. 02-3104                                                      25

handicaps.” In this case the trial court exercised that
patience, despite Ward’s attorney’s in-court waiver of his
client’s right to testify, and held an in camera session to
verify Ward’s decision. The specific issue of whether or
not Ward possessed the mental faculty to express a
waiver of his right to testify was determined at the out-
set by the trial court and is not at issue in Ward’s habeas
petition. The finding by the trial court of Ward’s fitness
to stand trial was never appealed in Illinois state court,
nor was the issue raised in federal court. Even if it were
at issue, competency determinations are definitively fac-
tual determinations which are presumed correct. See
Maggio v. Fulford, 462 U.S. 111, 117 (1983); Pierre v.
Cowan, 217 F.3d 939, 946 (7th Cir. 1992).
  Therefore, the limited issue on appeal to the Illinois
Appellate Court was not whether Ward was competent
to stand trial, but whether his waiver to testify was know-
ing and intelligent.5 The Illinois Appellate court rea-
sonably deferred to the trial court’s finding on this is-
sue because a trial court judge’s determination of wheth-
er Ward understood his rights and knowingly waived
them is due deference pursuant to Supreme Court prece-
dent. The trial court judge was required to parse Ward’s
statements and demeanor in order to determine his state
of mind, which is the specific province of the trial court.
See Miller, 474 U.S. at 113. The trial court was therefore
in the best position to resolve Ward’s often conflicting
and vague statements, a resolution that should not be
redetermined by a federal court on collateral review


5
  Voluntariness is not at issue in this case. The issue as framed
by the court is whether or not “Ward lacked a basic understand-
ing of the right to testify.” See Colorado v. Connelly, 497 U.S. 157,
167 (1986) (“coercive police activity is a necessary predicate to
the finding that a confession is not ‘voluntary’ within the mean-
ing of the Due Process Clause”; action under an insane delusion
may be voluntary).
26                                              No. 02-3104

unless presented with clear and convincing evidence. See
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Neither
the district court nor the members of this court had the
opportunity to view Ward in person, nor hear his words
when it examined the record of his conduct before the
trial court. Only the trial court was in this position. Given
the initial determination that Ward was competent to
stand trial, it was reasonable for the Illinois Appellate
Court to defer to the trial court’s finding of a waiver to
testify considering that the resolution of the issue de-
pended “heavily on the trial court’s appraisal of witness
credibility and demeanor.” Thomas, 516 U.S. at 111.
   Because the state court’s finding of waiver can be rea-
sonably described as a determination of fact, it should
have been “presumed to be correct” for purposes of a
federal habeas corpus proceeding. See 28 U.S.C. § 2254(d).
A habeas court may not disregard this presumption unless
it expressly finds clear and convincing evidence to the
contrary. 28 U.S.C. § 2254(e)(1). The court concedes that
it cannot overcome this standard as it notes that “Ward’s
aphasia prevents a conclusive interpretation of the fa-
cially ambiguous statement, “I guess, I don’t know.” Supra
p. 19. Similarly, in light of the fact that Ward’s state-
ment of assent is inconclusive, we cannot hold that
the Illinois Appellate Court applied Supreme Court prece-
dent in an objectively unreasonable fashion. It is not our
duty to displace the finding of a state court under habeas
review due to a mere disagreement with the result. In-
stead our province is restricted to finding “whether the
determination is at least minimally consistent with the
facts and circumstances of the case.” Hennon v. Cooper, 109
F.3d 330, 335 (7th Cir. 1997). In this case, the state
court’s finding achieves that result.
  I would, therefore, reverse and remand to the district
court with instructions to deny the petition for habeas
corpus, and I respectfully dissent.
No. 02-3104                                        27

A true Copy:
      Teste:

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




               USCA-02-C-0072—7-8-03
