In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1398 & 99-1482

James T. Foster,

Petitioner-Appellee,
Cross-Appellant,

v.

James M. Schomig,

Respondent-Appellant,
Cross-Appellee.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 95 C 5037--Robert W. Gettleman, Judge.


Argued September 21, 1999--Decided May 31, 2000



  Before Coffey, Manion, and Rovner, Circuit
Judges.

  Manion, Circuit Judge. James Foster was
convicted by an Illinois jury of
murdering his girlfriend by beating her
with a baseball bat, and was sentenced to
death because he also sexually assaulted
her by forcing pieces of the broken bat
into her rectum. The Illinois Supreme
Court affirmed and denied collateral
relief. He brought this Section 2254
motion to argue that his counsel were
ineffective for, among other things,
failing to call a psychiatrist to testify
during the sentencing phase of his trial.
He asserts that had such an expert been
called, he would have informed the court
that Foster suffered from an extreme
emotional disturbance, which is a
mitigating factor under Illinois law. The
district court accepted this argument and
granted Foster’s petition. The State
appeals, arguing that the district court
erred in finding that Foster’s attorneys
were ineffective. Foster cross-appeals,
arguing that the district court erred in
holding that the Antiterrorism and
Effective Death Penalty Act (AEDPA) was
applicable to this case and in finding
that one of his attorneys was not
ineffective for telling the jury that
Foster "killed the woman he loved."
Because the Illinois Supreme Court’s
decision was not contrary to clearly
established law, we reverse the district
court in part and affirm in part.

I.

  In 1985, James Foster was having an
adulterous relationship with Jacqueline
Simmons. Despite Foster’s own infidelity
to his wife, he became angry at Simmons
when he suspected she was unfaithful to
him. So on the night of January 9, 1985,
Foster went to confront her at an
apartment she shared with her roommate--
Theresa Williams. He began yelling at
Simmons and ordered her to disrobe in
front of him so that he could look for
signs of her involvement with other men.
Screaming and crying, Simmons complied.
Foster then threw her to the floor and
proceeded to hit and kick her repeatedly,
all the while ignoring her pleas to stop.
He then picked her up by her hair with
such force that tufts of it were torn
out. After taking a short break, Foster
proceeded to beat Simmons with a baseball
bat while calling her a "bitch" and a
"whore" and accusing her of "messing
around" on him. After the bat broke,
Foster forced part of it into Simmons’s
rectum. During the attack, Simmons’s
young child and two other children were
sleeping in another room of the
apartment. Williams, Williams’s
boyfriend, and a friend of Foster were
also in an adjoining room during the
beating. From there they could hear
Simmons’s screams and they periodically
witnessed portions of the two-hour
attack. They were also the audience for
Foster’s vaunts about how far he had
inserted the bat into Simmons’s rectum.
He showed them a piece of the bat and
said "look at how much the bitch took."

  After hearing Foster’s boasts, Williams
went to assist Simmons and found her
breathing irregularly and suffering a
seizure. Although Williams told Foster
that Simmons desperately needed medical
attention, Foster responded that Simmons
was drunk and she just needed to sleep it
off. Foster then departed for a local
tavern; when he returned about twenty
minutes later, Simmons was dead. Not sur
prisingly, the coroner found that both of
Simmons’s lungs were collapsed and that
she suffered blunt trauma injuries on her
head, chest, abdomen, and legs, as well
as lacerations on her anus and liver. He
determined that her death was caused by
multiple blunt trauma, which resulted in
swelling of the brain and internal
hemorrhage of the liver. Foster
eventually confessed to beating Simmons
with a baseball bat, which made the
jury’s task at the guilt phase of his
trial easier. On June 7, 1985, after
hearing witnesses describe the details of
the crime and reading Foster’s written
confession, the jury convicted him of
murder. The State asked for the death
penalty because the victim was killed in
the course of an aggravated sexual
assault. See 720 ILCS sec. 5/9-
1(b)(6)(c). Because no judge in Kane
County had ever sentenced a defendant to
death, Foster and his attorneys decided
to have the judge, rather than a jury,
determine his penalty.

  Foster was represented at trial and
sentencing by attorneys Frank Giampoli, a
part-time, Assistant Kane County Public
Defender, and George Chabalewski, a full-
time Public Defender. After the jury
convicted Foster, his attorneys contacted
a psychiatrist, Dr. Lyle H. Rossiter,
Jr., to evaluate whether Foster suffered
from any psychological condition which
might prevent the imposition of the death
penalty. Rossiter examined Foster on June
8 and June 19, and submitted a full
report on June 21, 1985. The report
states that Foster had a history of
serious head injuries and substance abuse
and that he suffers from an antisocial
personality disorder. While some aspects
of Dr. Rossiter’s report indicated the
presence of mitigating factors, it also
candidly stated that Foster had
"pronounced tendencies toward explosive
anger and aggressive physical outbursts."

  Believing that Dr. Rossiter’s testimony
would do more harm than good, and after
seeing the prosecutors effectively cross-
examine some of the other defense
witnesses, Foster’s attorneys decided not
to present Dr. Rossiter’s testimony.
Instead, they called various family
members and friends who characterized
Foster as a generous, hard-working,
religious, family man. The mother (not
his wife) of two of his six children
testified that his generosity
occasionally entailed the provision of
financial support for the two children.
The defense also tried to show that one
shooting incident in which Foster was
purportedly involved was simply a case of
mistaken identity. Foster’s young son
also testified that his father played
basketball with him, exhorted him to lead
a good life, and all in all was an
excellent father. Other family members
and friends testified that he was
generous with his time and would help
sick relatives and repair automobiles for
free.

  Of course, the State also presented its
own witnesses to show the presence of
aggravating factors. They described
Foster’s previous convictions for
battery, armed robbery, theft, and
illegally possessing firearms. One
witness testified that Foster and his
comrades gang-raped him while they were
in jail. Another witness described how
Foster beat and raped her at gunpoint
when she was fifteen years old and how
when he was finished with her Foster
ordered her to urinate on herself. Other
witnesses described an incident similar
to the beating of Simmons. Foster and his
friends tied up a woman and repeatedly
beat her with a stick, after which Foster
picked her up and dropped her on her
face. The judge also heard that Foster
once stabbed a police officer with a
concealed knife while he was in police
custody. On another occasion, Foster
forcibly entered the home of one family
by blowing apart their door with a
shotgun, the blast from which wounded one
of the occupants. The prosecution closed
its case by describing the crime and
asking the court to remember Foster’s
lack of remorse and the pain suffered by
Jacqueline Simmons.

Judge, I ask you when you go back into
chambers to consider this, to look,
again, at the photograph of this woman.
This is an attractive young girl who was
turned into this mess of mush with a
broken jaw and a torn liver.

And what does he do when he is finished
with her? As she’s lying there dying, he
brags about it. This is a good time for
him. He revels. He revels in the torture
that he inflicted on this woman. He takes
the bat, holds it up to the people who
are in the next room, and with excrement
all over it, he says "Look how much the
bitch took up her ass." And then, he goes
to a local bar for a drink because to him
this is a reason to party. This is a good
time.

Sent. Tr. at 2540-41.

   After considering all of the evidence,
the judge determined that Foster merited
the death penalty and set his execution
date for September 18, 1985. The Illinois
Supreme Court affirmed his conviction and
sentence on direct appeal. People v.
Foster, 518 N.E.2d 82 (Ill. 1987). Later,
it also denied the relief which Foster
sought under the Illinois Post-Conviction
Hearing Act. People v. Foster, 660 N.E.2d
951 (Ill. 1995).

  Foster subsequently filed the present
petition which alleges that his counsel
were ineffective for failing to call Dr.
Rossiter as a witness and for admitting
during closing argument of the guilt
phase that Foster killed Simmons. The
district court succinctly dispatched
Foster’s complaint about the closing
argument because Foster showed neither
deficient performance nor prejudice. But
the district court elected to hold an
evidentiary hearing on the ineffective
assistance at sentencing claim. The court
heard testimony from attorneys Giampoli,
Chabalewski, and Dr. Rossiter. Although
Dr. Rossiter’s 1985 report makes no
mention of the term "extreme emotional
disturbance,/1" he testified at the
evidentiary hearing that had he been
called as a witness at the sentencing
hearing, he would have told the court
that Foster suffered from such a
disorder. But his testimony also
indicated that, when effectively cross-
examined, he would have revealed that
Foster would exploit others for his own
personal gain, would rationalize
brutality, and was capable of inflicting
great harm without feeling any remorse.

  Chabalewski and Giampoli testified that
they were both experienced litigators at
the time of Foster’s trial and had both
used Dr. Rossiter’s expert testimony in
other cases. They testified that they
made a tactical decision not to present
Dr. Rossiter as a witness because they
feared that his assessment of Foster’s
violent proclivities and inability to
feel remorse might harm Foster’s chances
of escaping the death penalty. Despite
this testimony, the district court found
that Foster’s counsel were
constitutionally ineffective at
sentencing. It therefore decided to grant
the writ unless Foster was afforded a new
sentencing hearing. By its own terms, the
district court’s order was stayed pending
appeal. United States ex rel. Foster v.
Gilmore, 35 F. Supp.2d 626, 633 (N.D.
Ill. 1999).

II.

  To prevail on his Section 2254 claims,
Foster must show that a decision by the
Illinois state courts "was contrary to,
or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States," or "was based on an
unreasonable determination of the facts
in the light of the evidence presented in
the State court proceeding." 28 U.S.C.
sec. 2254(d)(1) & (2);/2 see Williams
v. Taylor, 120 S. Ct. 1495, 1521 (2000).
We review these questions de novo. Schaff
v. Snyder, 190 F.3d 513, 522 (7th Cir.
1999). Findings of fact made by the
state courts are presumed to be correct
and this presumption may be rebutted only
by clear and convincing evidence. 28
U.S.C. sec. 2254(e)(1). In ineffective
assistance of counsel claims, the habeas
petitioner must show that his attorneys’
performance was deficient and that their
errors caused him prejudice. Strickland
v. Washington, 466 U.S. 668, 687-88, 692
(1984).

  Foster argues here, as he did before the
Illinois Supreme Court and the district
court, that his attorneys acted
incompetently by declining to call Dr.
Rossiter to testify that Foster suffered
from an extreme emotional disturbance at
the time he killed Simmons.

  In assessing the performance of counsel,
"a court must indulge a strong
presumption that counsel’s conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption
that, under the circumstances, the
challenged action ’might be considered
sound trial strategy.’" Strickland, 466
U.S. at 689. Keeping this presumption in
mind, our task is to reconstruct the
circumstances surrounding the challenged
conduct and determine whether they were
reasonable. This determination must not
be distorted with hindsight. Rather we
must evaluate the conduct from counsel’s
perspective at the time the relevant
decision was made. Id. A defense
attorney’s performance is acceptable when
he chooses a professionally competent
strategy that secures for the accused the
benefit of an adversarial process.
Kokoraleis v. Gilmore, 131 F.3d 692, 696
(7th Cir. 1997). If the attorneys’
strategic decisions were sound when they
were made, these decisions cannot support
a claim of ineffective assistance.
Certainly the decision not to call a
witness to testify can be a strategic
decision. United States v. Kozinski, 16
F.3d 795, 813 (7th Cir. 1994). Such a
decision is sound "if it is based on the
attorney’s determination that the
testimony the witnesses would give might
on balance harm rather than help the
defendant." Hall v. Washington, 106 F.3d
742, 749 (7th Cir. 1997).

  The Illinois Supreme Court found that
Giampoli and Chabalewski’s decision not
to call Dr. Rossiter was "a matter of
trial strategy" which they concluded made
sense at the time the decision was made.
660 N.E.2d at 963. The district court, on
the other hand, concluded that Dr.
Rossiter’s testimony would have
demonstrated the statutory mitigating
factor of extreme mental or
emotionaldisturbance, that Dr. Rossiter
was highly credible, and that his
testimony was effective and persuasive.
35 F. Supp.2d at 631. It believed that
the failure to present Dr. Rossiter as a
witness deprived the sentencing judge of
valuable testimony which would have
necessarily altered the judge’s findings.
The court concluded that the failure to
present Dr. Rossiter’s testimony "rises
to the level of constitutionally
ineffective assistance of counsel." Id.
at 633.

  In arriving at his conclusion, the court
referred to the sentencing transcript
where the trial judge stated that he
could not find any evidence that
indicated or showed him that the murder
was committed while the defendant was
under the influence of extreme mental or
emotional disturbance. "There just isn’t
any evidence of that factor." The
district court twice repeated the "there
just isn’t any evidence" statement to
emphasize trial counsel’s deficiency in
presenting mitigating evidence. But a
review of the sentencing transcript shows
that this statement was made in the
process of the court methodically going
through the five mitigating factors set
out in the Illinois statute./3 The
first factor to be considered was prior
criminal activity. The record was replete
with evidence of Foster’s prior criminal
activity, so there was obviously no
mitigation there. The second factor
concerned whether the defendant was
"under the influence of extreme mental or
emotional disturbance . . . ." The
sentencing judge said that he could not
find any evidence which indicated or
showed him that the murder was committed
while the defendant was under such an
influence. This is where he said "There
just isn’t any evidence of that factor."
Contrary to the district court’s
characterization, the sentencing judge
wasn’t distressed by the fact that none
was presented, nor did he question
whether there was any possibility of
presenting such evidence. As we discuss
below, there is a clear reason for this.
He then went on with the next three
mitigating factors making the same
cryptic statement that there was no
evidence indicating that the defendant
qualified for any of them.

  Unfortunately, the hearing before the
district court, some thirteen years after
the trial, left something to be desired.
Although both defense attorneys
testified, neither of them had taken the
opportunity to review the sentencing
record, which included extensive
discussion among the attorneys and the
sentencing judge. Dr. Rossiter did have
an opportunity to at least review his
report. But all three witnesses-- defense
attorneys Giampoli and Chabalewski, and
Dr. Rossiter--had only vague
recollections of what took place prior to
and during the sentencing hearings. But
even with the witnesses’ diminished
recollection, the record of the hearing
before the district court supports the
conclusion of the Illinois Supreme Court
that the decision not to call Dr.
Rossiter was a matter of reasonable trial
strategy. Both Chabalewski and Giampoli
testified that they had worked with Dr.
Rossiter before and thus knew how he
would testify on cross-examination. They
both carefully considered presenting Dr.
Rossiter’s testimony at the sentencing
hearing but thought better of it when
they learned that he would describe
Foster as remorseless and prone to
violence.

Q. Whose decision was it not to call Dr.
Rossiter?

Giampoli:    I think we both thought long
and hard about it and felt that his
testimony would hurt more than help.

Evid. Hear. Tr. at 44. Chabalewski’s
recollection was consistent with
Giampoli’s.

Q. Why did you fail to use Dr.
Rossiter’s report?

Chabalewski: My recollection is that on
balance, it hurt us as much as it helped
us and gave, I think, as much reason for
imposition of the death penalty as not.

Q. And precisely what portions of the
report did you believe were more harmful
to the case than helpful?

Chabalewski: The one thing that I recall
is I think the doctor’s assessment that
Mr. Foster was a sociopath.

    *   *   *

Q. And in your opinion, after going
through Dr. Rossiter’s report, you felt
that it would be more harmful--harmful to
the defendant than beneficial at the
sentencing stage, am I correct?

Chabalewski:    Correct.

Q. And that’s why you didn’t call Dr.
Rossiter?

Chabalewski:    Correct.

Evid. Hear. Tr. at 92, 106.

  At the sentencing hearing, the state put
on extensive evidence of Foster’s prior
criminal activity. In mitigation, the
defense presented witnesses who disputed
some of the facts regarding the criminal
activity referred to by the state. But
the bulk of the mitigating evidence
involved testimony of family and friends
regarding Foster’s good works, his
helpfulness to family members and friends
in need, and his role as a father. The
hearing was then continued because there
was some question whether Dr. Rossiter
would testify. At a point in the hearing
the court stated to the defense attorney,


  As I understand your comments this
morning, you are saying that you still,
as you stand here now, intend to go
forward with the medical--or, with the
psychological evaluation, to present that
as evidence in mitigation.

  Accordingly, I will then permit the
state to move forward with their
examination.

Sent. Tr. at 2518-19.

  At the hearing on June 25, 1985, the
court learned that the defense would not
be calling Dr. Rossiter to testify. After
the attorneys discussed several documents
that would or would not come into
evidence, the prosecutor stated to the
court:

  I have one other matter that I would
like to put on record in regard to the
expert testimony that the defense was
seeking to procure in this case.

  Our office talked personally to Dr.
Rossiter, and also received a report from
him indicating that he had examined the
defendant.

  It’s also come to our attention that
various medical tests were performed on
the defendant at Community Hospital as
part of the evaluating process by Dr.
Rossiter.

  We lined up a witness to come to court
today in rebuttal.

  Since the defendant indicated they would
not call Dr. Rossiter, obviously, we have
called off our witness.

  We were ready to proceed if, in fact,
the defense wanted to call Dr. Rossiter.

  What I’m indicating in summary, Judge,
is that all of the tests that the defense
sought to have performed on the defendant
were, in fact, carried out. And it was a
strategy decision on the part of the
defense not to call Dr. Rossiter. He was
available, and he did complete all of the
testing that they were seeking.

Sent. Tr. at 2534-35.

  In response, attorney Giampoli stated:

  Your Honor, basically, the only comment
attacking that comment is that this Court
cannot infer that those reports would
have a negative or positive effect
because, obviously, we just decided we
didn’t want to call the expert.

The Court: I understand. I was just
about to stop the defendant if any
comment was made to what the tests may or
may not indicate because, as far as I am
concerned, that is the choice you people
made.

  I think the record does reflect that you
did have the opportunity to have the
defendant evaluated and tests performed
and things of that nature, and that’s--
and that’s as far as it goes.

Sent. Tr. at 2535-36.

  Given this exchange, it is readily
apparent that the decision not to call
Dr. Rossiter was a thoughtful and
strategic one and that the prosecution
was not only going to bring in its own
expert psychiatric witness in the event
Dr. Rossiter testified, but there were
also certain documents that would reveal
the results of a number of medical tests.
Without saying why, the defense attorneys
emphasized to the court that it should
not infer that those reports would have a
negative or positive effect. This further
demonstrates that defense counsel had
every opportunity to review those
reports, and in view of the opposing
expert that would have been called, made
a strategic decision not to call Dr.
Rossiter. Given the context of the
actual hearing, and not based on what the
witnesses could or could not recall
thirteen years later, not calling Dr.
Rossiter was entirely reasonable.

  The preclusion of whatever aggravating
evidence the prosecution was marshaling
was not the only thing that made the
decision not to call Dr. Rossiter
reasonable. As we have noted before in
cases like this one, there is a strong
possibility that the defendant’s
mitigation evidence might turn out to be
aggravating. See Emerson v. Gramley, 91
F.3d 898, 906 (7th Cir. 1996). Dr.
Rossiter’s preliminary report foretold
enough aggravating factors that could
offset whatever evidence of extreme
emotional disturbance might have been
mitigating. For instance, the report
stated that Foster has "an antisocial
personality disorder" and has "pronounced
tendencies toward explosive anger and
aggressive physical outbursts." Because
the report describes Foster in an
unflattering light, to say the least, it
would have caused any competent attorney
to pause and consider how devastating
this testimony could be to Foster’s case.
From Dr. Rossiter’s testimony at the
evidentiary hearing thirteen years later
we further see how he would have
described Foster if he had been called to
testify at the sentencing phase./4 Dr.
Rossiter stated:

  I saw him [Foster] as a particularly
self-centered individual, probably
capable of exploiting others for his own
personal gain without regard to their
rights, let alone their sensibilities.

  I think that he is capable of
rationalizing a good deal of the
brutality in this particular case. I
think he was capable of denying to me or
representing to me certain events in
somewhat less than entirely candid
detail.

    *   *   *

[C]ertainly antisocial disorder, with it
by definition lack of the usual
constraints of conscience and the usual
ideal that provide the standards to which
one conforms conduct, that--that
characteristic of the antisocial
personality disorder would be a strong
aggravating factor in one sense.

  The irony of the situation, if I may,
your Honor, is that from a psychiatric
point of view, an antisocial personality
disorder is a very extreme developmental
disorder. It’s a very defective
development of the human personality. The
absence of the constraints of conscience
and the ideals that guide and constrain
one’s behavior, that is an abnormality of
human nature. So in itself, it
constitutes, from a clinical point of
view, a very severe aberration.

  It is not typically regarded that way
from a forensic legal point of view, of
course, but the fact is that persons who
have such disorders are very severely
crippled in their ability to lead a
normal life, to cooperate, to relate to
other people in a normal manner.

Evid. Hear. Tr. at 180-81 (emphasis
added). When cross-examined, Dr. Rossiter
was forced to expand upon his description
of Foster as a remorseless criminal.

Q. Okay. Dr. Rossiter, it is my
understanding that an individual who
suffers from an antisocial personality
disorder, that it’s typical of that type
of individual to have a criminal history,
is that correct?

A.    That’s correct.

Q. And you had testified that this
starts with burglaries and purse
snatchings and crimes of that nature, am
I correct?

A.    Correct.

Q. And that it’s not uncommon for an
individual who suffers from an antisocial
personality disorder to graduate into
more violent crimes, am I correct?

A.    That’s true.

Q. And in fact, Mr. Foster has a history
of violent crimes?

A.    That’s true.

Q. And he has the antisocial personality
disorder, is that right?

A.    That’s correct.

     *   *   *

Q. It’s my understanding as well that
people with an antisocial personality
disorder are generally considered to be
remorseless, is that fair?

A.    Correct?

Q.    Devious?
A.   Yes.

Q.   Dishonest?

A.   Yes.

Q.   Self-centered?

A.   True.

Evid. Hear. Tr. at 172-73. When asked
whether Foster might become increasingly
violent, Dr. Rossiter conceded that this
might happen, and in his deposition
testimony he went so far as to say that
Foster was predisposed to violence.
Although Dr. Rossiter opined in his
deposition that his report would have
been more helpful to Foster’s case than
harmful, he conceded that there were
aggravating factors in his report, and
that based on his twenty-five years of
experience in criminal matters, "the
diagnosis of antisocial personality
disorder is usually taken in legal
circles as a damning kind of finding
because the individual is characterized
as being predatory, malicious,
unconscionable, and calculating in his
criminal activities."

  As Dr. Rossiter emphasized several
times, extreme emotional disturbance is a
legal term, not a medical one. When the
district court pressed him at the
hearing, Dr. Rossiter acknowledged that
he would discuss the pros (mitigating)
and cons (aggravating) with defense
counsel. Dr. Rossiter stated, "I call
them as I see them. I try to inform the
consulting--the attorney for whom I’m
consulting of the potential two-edged
sword of my testimony if there is one,
because what I have to say may be
mitigating or damning, depending on which
dimension of the human nature under
question I’m talking about." Evid. Hear.
Tr. at 182./5

  This kind of testimony could have
substantially damaged Foster’s case.
Foster obviously would not have wanted
the sentencing judge to hear an expert
opinion that Foster’s psychological
aberrations cause him to disregard the
rights and feelings of others to such an
extent that he would feel no remorse even
after killing a young mother while her
child was sleeping in the next room. Dr.
Rossiter’s testimony risked designating
Foster’s treatment of Jacqueline Simmons
as something he would be inclined to do
again. It would have suggested that
Foster’s violent behavior was not the
exception but the rule, making him a
constant threat to prison guards or
fellow inmates. Given the context in
which Dr. Rossiter’s testimony would have
been presented, it was a reasonable
strategic decision for the defense
attorneys not to expose Dr. Rossiter to
the prosecution’s cross-examination,
especially because it would have opened
the door to the testimony of the
government’s psychiatric expert.

  Thus, we agree with the Illinois Supreme
Court that the decision not to call Dr.
Rossiter as a mitigation witness was a
matter of sound strategy. Foster has
failed to rebut the presumption that his
counsel’s decision was based on a
legitimate strategy or that his counsel’s
performance fell below an objective
standard of reasonableness./6

  Even if we assume for the sake of the
argument that his attorneys were
incompetent in failing to present
Rossiter’s testimony, Foster has failed
to show that this caused him prejudice.
To demonstrate prejudice, a defendant
must show that "there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
The prejudice inquiry "focuses on the
question whether counsel’s deficient per
formance renders the trial unreliable or
the proceeding fundamentally unfair."
Williams, 120 S. Ct. at 1513 n.17. In the
penalty phase of a capital case, to show
prejudice the movant must demonstrate
that "a reasonable probability exists
that, but for counsel’s substandard
performance, the sentencer ’would have
concluded that the balance of aggravating
and mitigating factors did not warrant death.’"
See Hall, 106 F.3d at 751-52 (quoting
Strickland, 466 U.S. at 695).

  The Illinois Supreme Court concluded
that "[t]here is no reasonable
probability that the introduction of Dr.
Rossiter’s testimony would have prompted
the sentencing judge to find that there
were mitigating circumstances sufficient
to preclude imposition of the death
penalty." Foster, 660 N.E.2d at 963. Our
review of the record leads us to agree
with the Illinois Supreme Court. At best,
Dr. Rossiter’s testimony would have
helped Foster by suggesting that he was
suffering from schizophrenia, was
depressed at the time he killed Simmons,
and that due to psychological factors
beyond his control, he was prone to
violent outbursts. The presence of these
factors caused Dr. Rossiter to believe
(at least at the time of the hearing
before the district court) that when he
killed Simmons, Foster was under the
influence of extreme mental or emotional
disturbance. Assuming that the sentencing
judge would have believed Dr. Rossiter,
and would have disbelieved any
psychiatric evidence the state presented
to the contrary, Dr. Rossiter might have
put some weight on the mitigation arm of
the scale. We say "might have" because we
have noted before that the presence of an
emotional or mental disturbance can be
seen by some not as a mitigating factor,
but as an aggravating one. "Mitigation .
. . after all, may be in the eye of the
beholder." Burger v. Kemp, 483 U.S. 776,
794 (1987). Sentencing judges "may not be
impressed with the idea that to know the
cause of viciousness is to excuse it;
they may conclude instead that when
violent behavior appears to be outside
the defendant’s power of control, capital
punishment is appropriate to
incapacitate." Burris v. Parke, 130 F.3d
782, 784-85 (7th Cir. 1997).

  But even if Dr. Rossiter’s testimony
definitely would have established the
existence of a mitigating factor, the
presence of one (or more than one)
mitigating factor does not preclude the
imposition of the death penalty. Rather,
Illinois law requires the sentencing
judge to consider all mitigating and
aggravating factors, including those
aggravating factors intentionally or
unintentionally set forth by a
"mitigation" witness. 720 ILCS sec. 5/9-
1(c). Thus, the sentencing judge was
obliged to consider those aspects of Dr.
Rossiter’s testimony which spoke to
Foster’s lack of rehabilitative
potential, his propensity to commit
violent acts, his inability to assimilate
himself into society, his failure to
accept responsibility for his crimes, and
his lack of remorse. See People v. Ward,
718 N.E.2d 117, 127 (Ill. 1999); People
v. Shatner, 673 N.E.2d 258, 268 (Ill.
1996); People v. Anderson, 672 N.E.2d
1314, 1319-20 (Ill. App. Ct. 1996);
People v. Kerkering, 671 N.E.2d 368, 372
(Ill. App. Ct. 1996); People v. Moore,
620 N.E.2d 583, 589 (Ill. App. Ct. 1993).
The district court did not take into
account these facets of Dr. Rossiter’s
testimony when it concluded that the
defense attorneys rendered ineffective
assistance by not calling Dr. Rossiter to
testify.

  The district court believed that because
the sentencing judge was required to
consider whether Foster was emotionally
disturbed, "it is axiomatic that the
presentation of such evidence would have
influenced the sentencing judge." 35 F.
Supp.2d at 632. No doubt it would have
had some influence, but that influence
could well have been negative.

  But even if Dr. Rossiter’s testimony
could be construed as having no
aggravating elements, and even if it
would not have opened the door to
psychological evidence from the
prosecution, in light of the other
evidence it seems that Dr. Rossiter could
hardly have established that Foster was
under an extreme emotional disturbance at
the time he murdered Simmons. As the
Illinois Supreme Court pointed out, "An
extreme emotional disturbance occurs when
defendant’s emotional state at the time
of the murder is ’at such a fragile point
as to leave him with little or no
emotional control.’" 660 N.E.2d at 963
(quoting People v. Phillips, 538 N.E.2d
500, 514 (1989)). Apparently Foster had
been looking for Jacqueline Simmons
throughout the evening of January 9,
1985. After several unsuccessful
attempts, he finally found her at the
apartment later that night. The brutal
beating with a baseball bat, witnessed
intermittently by three adults, lasted
nearly two hours. After showing off the
bat handle that he had inserted in
Simmons’s rectum, Foster left with a
friend to visit a bar. On the way out he
dismissed Theresa Williams’s warning that
Simmons needed to go to the hospital and
simply observed that "Simmons was drunk
and they should let her sleep it off."
518 N.E.2d at 85. When he returned about
20 minutes later, Simmons was dead. As
the Illinois Supreme Court concluded:

Defendant exhibited rational and logical
conduct on the night of the murder.
Defendant spoke to the victim and the
others in the apartment that night in a
coherent and rational manner. He tried to
resuscitate Simmons and removed evidence
of the beating from the apartment.
Defendant apparently expected the police
to investigate and he concocted a story
to tell them in order to protect himself.
In light of all the evidence which the
trial court considered at sentencing,
including defendant’s history of criminal
activity, defendant failed to demonstrate
a reasonable probability that the
sentencing judge would not have imposed
the death penalty if trial counsel had
presented Dr. Rossiter’s testimony in an
effort to show that defendant was under
an extreme emotional disturbance at the
time of the murder.

660 N.E.2d at 963-64.

  We agree with the Illinois Supreme
Court. Even if we were to conclude that
counsel were ineffective, which we do
not, Foster could not demonstrate
prejudice. Because the totality of Dr.
Rossiter’s testimony would not have
provided a net benefit to Foster’s case,
and instead would likely have harmed it,
Foster has failed to show that there is a
reasonable probability that but for Dr.
Rossiter not testifying the sentencer
would have concluded that the balance of
aggravating and mitigating factors did
not warrant death. See Hall, 106 F.3d at
751-52. Thus, he has failed to satisfy
either the deficient performance or
prejudice prong of Strickland.

  Foster’s final argument is that Giampoli
doomed his case by stating during closing
argument of the guilt phase of the trial
that Foster "killed the woman he loved."
The Illinois Supreme Court and the
district court correctly determined that
Foster failed to show either that the
statement constituted deficient
performance or that prejudice resulted
from this remark. Obviously, Giampoli was
attempting to direct the jury’s attention
to the intent element, the element on
which Foster hoped to prevail. Giampoli
testified as much. It is reasonable to
focus a jury’s attention on the element
which provides the greatest chance of
success and we previously held that this
is a sound trial strategy. See Underwood
v. Clark, 939 F.2d 473, 474 (7th Cir.
1991); see also United States v. Wilks,
46 F.3d 640, 644 (7th Cir. 1995)
(conceding guilt on one count was a
reasonable tactic because it lent
credibility to counsel). So contrary to
Foster’s assertions, merely conceding the
presence of one element was not an
admission of guilt and certainly was not
unreasonable in this context. Also,
because the jury had already heard
testimony that Foster confessed to
beating Simmons, had seen his written
confession, heard uncontradicted
testimony from witnesses to the beating,
and heard the coroner testify as to the
cause of Simmons’s death, Giampoli didn’t
tell the jury anything it didn’t already
know. This statement hardly could have
caused prejudice. Therefore, we agree
with the district court that the Illinois
courts did not err in denying relief on
this claim.

III.

  Because Foster has not shown that his
conviction or sentence was contrary to
clearly established law or was an
unreasonable application of law as set
out in Strickland, he cannot prevail.
Accordingly, we AFFIRM the district
court’s denial of his Section 2254 motion
on his ineffective assistance claim
regarding his counsel’s closing argument
during the guilt phase. We REVERSE the
district court’s granting of his Section
2254 motion on his ineffective assistance
claim with respect to the sentencing
phase of his case.


/1 "Extreme emotional disturbance" is a legal term
rather than a medical one. In assessing a defend-
ant’s fitness for the death penalty, Illinois law
requires a sentencing judge to consider all
aggravating and mitigating factors, including
"whether the murder was committed while the
defendant was under the influence of extreme
mental or emotional disturbance . . . ." 720 ILCS
sec. 5/9-1(c)(2). Under Illinois law, a "defen-
dant is under the influence of an extreme emo-
tional disturbance when the defendant’s emotional
state at the time of the murder is at such a
fragile point as to leave him or her with little
to no emotional control." People v. Evans, 708
N.E.2d 1158, 1166 (Ill. 1999).
/2 Because Foster filed his petition on January 16,
1997, the AEDPA applies. Williams v. Taylor, 120
S. Ct. 1479, 1486 (2000). He argues that the date
he sought appointment of counsel (September 1,
1995) should constitute the initiation date of
his petition, but we have rejected this argument
before and now do so again. Gosier v. Welborn,
175 F.3d 504, 506 (7th Cir. 1999).


/3 720 ILCS sec. 5/9-1(c) provides:

  Mitigating factors may include but need not be
limited to the following:

(1) the defendant has no significant history of
prior criminal activity;

(2) the murder was committed while the defendant
was under the influence of extreme mental or
emotional disturbance, although not such as to
constitute a defense to prosecution;

(3) the murdered individual was a participant in
the defendant’s homicidal conduct or consented to
the homicidal act;

(4) the defendant acted under the compulsion of
threat or menace of the imminent infliction of
death or great bodily harm;

(5) the defendant was not personally present
during the commission of the act or acts causing
death.


/4 We consider Dr. Rossiter’s testimony only to the
extent it indicates what he told Foster’s attor-
neys concerning what his testimony would have
been had he testified at the sentencing hearing.
Considering anything else would be an impermissi-
ble use of hindsight. See Strickland, 466 U.S. at
689.


/5 At the hearing he had no recollection one way or
the other whether thirteen years earlier he
talked to the defense attorneys about these pros
and cons.


/6 One might argue that defense counsel should have
gambled on presenting Dr. Rossiter’s testimony,
as Foster already had a dismal case and had
little to lose. While it’s true that the sentenc-
ing judge may have inferred from the depravity of
the crime itself that Foster possessed some of
the attributes which Dr. Rossiter ascribed to
him, Dr. Rossiter would have provided an expert
opinion that Foster was a fundamentally flawed
individual whose characteristics included a
predisposition to violence and an inability to
feel remorse. Our review of the sentencing hear-
ing transcript indicates that no other witness
explicitly made these assertions.




  Rovner, Circuit Judge, concurring in part and
dissenting in part. I respectfully dissent
because I believe the majority has failed to give
any deference to the fact-findings of the dis-
trict court, instead ignoring the evidentiary
hearing in its entirety and applying de novo
review. Federal Rule of Civil Procedure 52 (a)
provides that "[f]indings of fact, whether based
on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial
court to judge of the credibility of the witness-
es." See also Anderson v. City of Bessemer City,
North Carolina, 470 U.S. 564, 573-76 (1985);
Moffat v. Gilmore, 113 F.3d 698, 700 (7th Cir.
1997) (for a habeas petition, the district
court’s findings of fact are reviewed for clear
error and conclusions of law are reviewed de
novo); Bocian v. Godinez, 101 F.3d 465, 468 (7th
Cir. 1996) (same). Here, the district court heard
the testimony of Foster’s original defense attor-
neys as well as Dr. Rossiter. After listening to
the attorneys themselves, the district court
concluded that Foster’s attorneys did not make a
strategy decision at all regarding whether to
call Dr. Rossiter. On the contrary, the court
concluded, "Indeed, it does not appear that
counsel made a ’decision’ not to offer Dr. Rossi-
ter, but rather simply succumbed to the fact that
they were not prepared to do so." Foster v.
Gilmore, 35 F.Supp.2d 626, 632 n.11 (N.D. Ill.
1999). Implicit in this finding is the district
court’s conclusion that Foster’s attorneys were
not credible at the evidentiary hearing when they
testified that they decided on balance that Dr.
Rossiter’s testimony would harm Foster more than
help him. The district court concluded that the
attorneys’ failure to consult a psychiatric
expert prior to or during the trial in order to
lay the groundwork for demonstrating extreme
emotional disturbance was "inexplicable" and
"wholly ineffective." Id., 35 F.Supp.2d at 630.
The subsequent failure to present Dr. Rossiter’s
testimony was "inexcusable," according to the
district court. Id., 35 F.Supp.2d at 631.

  Without pointing to any flaws in the reasoning
and findings of the district court, the majority
opines that "the hearing before the district
court . . . left something to be desired." Ante
at 10. The majority concludes that the hearing
"supports the conclusion of the Illinois Supreme
Court that the decision not to call Dr. Rossiter
was a matter of reasonable trial strategy." Id.
Of course, there was no evidentiary hearing at
all in the state court, and so it is unclear on
what evidence the Illinois Supreme Court based
this conclusion and even more unclear why we
should uphold it. Instead of deferring to the
district court’s findings of fact following a
full evidentiary hearing, the majority takes a
lengthy tour through the original sentencing
transcript, concluding from the cold record,
contrary to the credibility findings of the
district court, that "not calling Dr. Rossiter
was entirely reasonable." Ante at 14. Again, the
district court found, as a matter of fact, that
Foster’s counsel made no reasoned decision at
all, but rather "succumbed" to unpreparedness. We
cannot set aside that finding unless we have a
strong conviction that the district court commit-
ted clear error. Anderson, 470 U.S. at 573 ("The
reviewing court oversteps the bounds of its duty
under Rule 52(a) if it undertakes to duplicate
the role of the lower court."). The majority has
supplied no reason to believe the district court
clearly erred.

  It should go without saying that counsel’s
failure, due to lack of preparation, to present
the only statutory mitigating factor that applied
to Foster constitutes deficient performance. See
Eddmonds v. Peters, 93 F.3d 1307, 1324 (7th Cir.
1996) (Flaum and Rovner concurring), cert. de-
nied, 520 U.S. 1172 (1997). Counsel in a capital
case is obliged to mount a "significant effort,
based on reasonable investigation and logical
argument" in order to mitigate a client’s punish-
ment. Id., 93 F.3d at 1323-24 (quoting Kubat v.
Thieret, 867 F.2d 351, 369 (7th Cir. 1989), cert.
denied, 493 U.S. 874 (1989)). When it is apparent
that the client has some mental condition that
warrants further investigation, the failure to
investigate is ineffective assistance. Id. (cit-
ing Stewart v. Gramley, 74 F.3d 132, 135 (7th
Cir. 1996), cert. denied, 519 U.S. 838 (1996)).
Dr. Rossiter was not contacted by defense counsel
until June 7, 1985, a few hours after the jury
returned its verdict of guilty and a few days
before the trial court commenced proceedings to
determine Foster’s eligibility for the death
penalty. Dr. Rossiter began his examination of
Foster on June 8, 1985. The hearing in mitigation
and aggravation began on June 11, 1985, immedi-
ately following the court’s determination that
Foster was death penalty eligible. The trial
court allowed a short continuance to allow Dr.
Rossiter to complete his examination of Foster,
and to write his report. On June 25, 1985, the
hearingconcluded and the trial court sentenced
Foster to death.

  James Foster suffers from borderline paranoid
schizophrenia, schizoid personality, explosive
personality disorder and antisocial personality
disorder. He also suffered from depression,
brought on by the death of his mother approxi-
mately five months before he committed this
crime. He has a long history of drug and alcohol
abuse, and at the time of the offense, he was
under the influence of alcohol, cocaine and
marijuana. Foster has a history of serious head
injuries sustained in 1969, 1975 and 1981. The
sentencing court never heard any of this evidence
because Foster’s counsel did not call Dr. Rossit-
er to testify at the hearing in mitigation. Dr.
Rossiter did testify before the district court,
and the district court found him to be highly
credible. Dr. Rossiter testified that defense
counsel never asked him at the time of the
sentencing hearing to determine whether Foster
was under an "extreme emotional disturbance," a
statutory factor in mitigation in Illinois. See
Eddmonds, 93 F.3d at 1325 (attorney essentially
abdicated his duty to make reasonable inquiry of
mitigating circumstances where, among other
things, he never asked a mental health expert to
render an opinion on whether the defendant suf-
fered a mental disturbance at the time of the
crime when other information pointed to past
psychological problems) (Flaum and Rovner concur-
ring). Dr. Rossiter testified in the district
court that, had he been asked, he would have
answered that Foster was suffering from an ex-
treme emotional disturbance at the time of the
crime. When defense counsel knew that the evi-
dence against his client was overwhelming, indeed
when defense counsel admitted in closing argu-
ments that the defendant killed the woman he
loved, it was patently clear that the only issue
for the finder of fact to resolve was the defend-
ant’s mental state at the time of the crime./1
Under these circumstances, to fail to consult a
mental health expert earlier is inexplicable and
constitutes ineffective assistance of counsel.
The subsequent failure to ask Dr. Rossiter the
only relevant question, whether the defendant was
under an extreme emotional disturbance at the
time of the crime, demonstrates that Foster was
essentially without counsel for the purposes of
the sentencing hearing.

  The question remains whether Foster was preju-
diced by his attorneys’ ineffective assistance at
sentencing. Under Strickland, Foster must show
that there is a reasonable probability that, but
for his attorneys’ errors, the result of the
proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 695 (1984). "[A]
defendant need not show that counsel’s deficient
conduct more likely than not altered the outcome
in the case." Id., 466 U.S. at 693. Rather, "[a]
reasonable probability is a probability suffi-
cient to undermine confidence in the outcome."
Id., 466 U.S. at 694.

  The district court found that because extreme
emotional disturbance is a factor in mitigation
that the trial court must consider under the
statute, and because Foster had no other effec-
tive evidence in mitigation, he was prejudiced by
this failure. I agree. Illinois law provides
that:
The court shall consider . . . any aggravating
and any mitigating factors which are relevant to
the imposition of the death penalty. . . .
Mitigating factors may include but need not be
limited to the following:

(1) the defendant has no significant history of
prior criminal activity;

(2) the murder was committed while the defendant
was under the influence of extreme mental or
emotional disturbance, although not such as to
constitute a defense to prosecution;

(3) the murdered individual was a participant in
the defendant’s homicidal conduct or consented to
the homicidal act;

(4) the defendant acted under the compulsion of
threat or menace of the imminent infliction of
death or great bodily harm;

(5) the defendant was not personally present
during commission of the act or acts causing
death.

720 ILCS sec. 5/9-1.

  The trial court considered the statutory miti-
gating factors one by one, concluding that there
was no evidence supporting mitigation under any
of these theories. The trial court then consid-
ered non-statutory evidence presented, which
consisted entirely of statements by friends and
family members regarding Foster’s more redeeming
personal qualities. The evidence was thin. In-
deed, the majority recognizes the flimsy nature
of the mitigation evidence, noting that "[t]he
mother (not his wife) of two of his six children
testified that his generosity occasionally en-
tailed the provision of financial support for the
two children." Ante at 4. Other evidence present-
ed included testimony by Foster’s father and
uncle about Foster’s religious convictions, and
testimony by Foster’s twelve-year-old son that
his father was a "nice man" who played basketball
with him, took him on vacations and taught him
about the Bible. The trial court, after finding
no statutory mitigating factors present, stated,
"I listened with interest to Mr. Giampoli’s so-
called nonstatutory mitigating factors. And I
find none of those to be of adequate mitigation
to change this situation." Sentencing Tr. June
25, 1985 at 62. Foster was effectively without
any evidence in mitigation. "Without a reasonable
showing of mitigation by the defense, the court
had no choice: under the Illinois death penalty
scheme, if no sufficient mitigating factors are
found, ’the court shall sentence the defendant to
death.’" Hall v. Washington, 106 F.3d 742, 752
(7th Cir. 1997), cert. denied, 522 U.S. 907
(1997) (citing 720 ILCS 5/9-1(h)).

  The majority has adequately detailed the evi-
dence in aggravation. Against this, the trial
court weighed nothing. Foster’s attorneys testi-
fied before the district court that they feared
Dr. Rossiter’s testimony on cross-examination
would have harmed rather than helped Foster. It
is difficult to see how it could have harmed him.
The district court was already well aware of
Foster’s tendency toward explosive anger and
aggressive physical outbursts. Dr. Rossiter’s
testimony would have provided the only explana-
tion for this behavior, the only evidence that
Foster suffers from a number of serious psycho-
logical problems. The district court concluded:
In the instant case, having heard Dr. Rossiter’s
testimony at the evidentiary hearing, in which he
was subjected to skillful cross-examination, this
court concludes that his testimony would have
demonstrated the statutory mitigating factor of
extreme mental or emotional disturbance. This
court finds that Dr. Rossiter was highly credible
and that his testimony was effective and persua-
sive. The failure to present this testimony at
the sentencing hearing was inexcusable.
Foster, 35 F.Supp.2d at 631 (footnote omitted).
The court commented that Dr. Rossiter "convinc-
ingly defended his conclusion that petitioner was
acting under an extreme emotional disturbance."
Id., 35 F.Supp.2d at 631 n.9. The district court
also noted that Dr. Rossiter testifies for the
prosecution two-thirds to three-quarters of the
time.

  It is difficult to imagine how Dr. Rossiter’s
testimony would not have affected the sentencing
court. Again, we need not find that the sentenc-
ing court would more likely than not have sen-
tenced Foster to life rather than death. Strickl-
and, 466 U.S. at 694. We need only find that Dr.
Rossiter’s testimony undermines our confidence in
the outcome. Id. My confidence is undermined. I
therefore respectfully dissent.
/1 I agree with the majority that defense counsel’s
reference to Foster killing the woman he loved
did not constitute deficient performance under
the circumstances. Therefore, I concur in this
part of the majority’s opinion. I also concur
with the majority’s conclusion that the AEDPA
applies to Foster’s petition.
