                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 06-3934

G REGORY S TURGEON,
                                                Petitioner-Appellant,
                                  v.

N EDRA C HANDLER, Warden,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 05 C 4960—George W. Lindberg, Judge.


    A RGUED JANUARY 9, 2008—D ECIDED JANUARY 13, 2009




 Before W OOD , S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. Gregory Sturgeon pleaded guilty
to aggravated sexual assault and was sentenced to
45 years in prison. He unsuccessfully pursued a motion to
withdraw his guilty plea, a direct appeal, and a full round
of postconviction proceedings in Illinois state court, and
then filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254, claiming violations of his Fourteenth
Amendment right to due process and his Sixth Amend-
ment right to effective assistance of trial and appellate
2                                                No. 06-3934

counsel. His claims center on the question of his entitle-
ment to a hearing on the issue of his competency. The
district court denied the writ but granted a certificate
of appealability on the due-process claim. We later ex-
panded the certificate to include Sturgeon’s claims for
ineffective assistance of trial and appellate counsel.
  We affirm. The record did not raise a bona fide doubt
as to Sturgeon’s mental fitness. To the contrary, four
examining doctors declared him competent notwithstand-
ing his history of mental illness and use of psychotropic
medication. Accordingly, the decision of the Illinois
Appellate Court affirming the denial of postconviction
relief was neither an unreasonable determination of the
facts nor an unreasonable application of federal law.


                      I. Background
  Sturgeon was charged in June 1994 with beating and
raping a woman on an elevated train platform in
Evanston, Illinois. Two years later he pleaded guilty to
two counts of aggravated sexual assault and was sen-
tenced to 45 years in prison. During the protracted pretrial
proceedings, Sturgeon’s competency to stand trial was
evaluated by four court-appointed doctors. The first
ordered evaluation came immediately after counsel was
appointed; it could not be completed, however, because
Sturgeon told the doctor that he did not want to
participate in the examination without first talking to
his lawyer. At his next court appearance, Sturgeon told
Judge Robert Nix that he would give the court “fifty
million dollars” if the court would order a “legal injection.”
No. 06-3934                                             3

Judge Nix ordered another competency evaluation and
appointed Dr. Stafford Henry, who concluded after a
clinical examination that Sturgeon was fit to stand trial.
  In October 1994 Sturgeon appeared before Judge Marcia
Orr and announced that he wanted to plead guilty and had
instructed counsel to begin plea negotiations with the
prosecutor. However, Sturgeon’s counsel first asked the
court to order another fitness evaluation based on Stur-
geon’s apparent obsession with lethal injection (not an
applicable penalty) and his willingness to plead guilty
no matter what sentence might result. Judge Orr ques-
tioned whether a new evaluation was necessary but
ordered one anyway; the judge also subpoenaed
Sturgeon’s records from the Illinois Department of
Mental Health. After reviewing the mental-health
records and conducting a new clinical evaluation, Dr.
Henry reported that Sturgeon had a history of hearing
voices (especially when under the influence of drugs and
alcohol) but was presently taking medication (Haldol) and
was “alert, oriented and superficially cooperative.” The
doctor noted, however, that Sturgeon was not completely
forthright in answering questions about his history.
Regardless, Sturgeon understood the nature, purpose,
and details of the court proceedings against him, and
Dr. Henry again concluded he was competent to stand
trial as long as he continued to take his medication.
  Sturgeon’s odd in-court behavior continued through-
out the next few months. At one point he announced that
he was responsible for the “O.J. Simpson” murders of
Nicole Brown Simpson and Ronald Goldman. Judge
4                                               No. 06-3934

Daniel Jordan granted defense counsel’s request for a third
psychiatric exam, this time conducted by Dr. Roni
Seltzberg. Before her evaluation, Dr. Seltzberg reviewed
12 different sets of mental-health records from Sturgeon’s
file. Like Dr. Henry, she reported that Sturgeon was “alert
and oriented” and had good understanding of the par-
ticulars of the court proceedings against him. She noted
that Sturgeon suffered from polysubstance dependence
and was HIV positive, and diagnosed him with a personal-
ity disorder and a psychotic disorder “in remission with
medication.” On the basis of her review of his medical
records and her clinical examination, Dr. Seltzberg de-
clared Sturgeon fit to stand trial.1
  At the next hearing, Sturgeon’s counsel refused to
stipulate to Dr. Seltzberg’s findings and asked the court to
schedule a hearing at which the doctor could be cross-
examined. The court instead ordered yet another fitness
evaluation. Conducted by Dr. Dawna Gutzmann, this
examination was only slightly different from the
previous three. Sturgeon told Dr. Gutzmann that he
had stopped taking his medication because he didn’t like
the side effects but was nevertheless “doing fine.” Dr.
Gutzmann found “no evidence of hallucinations” and
stated that Sturgeon’s reasoning, judgment, and impulse
control were all intact. Sturgeon knew the details of his
case and the nature of the court proceedings against him.



1
  Dr. Seltzberg and Dr. Henry also evaluated Sturgeon for a
possible insanity defense. Both concluded he was sane at the
time of the offense.
No. 06-3934                                             5

Dr. Gutzmann concluded Sturgeon was competent to
proceed.
  Following the return of Dr. Gutzmann’s report, Stur-
geon’s counsel advised the court that Sturgeon was
prepared to plead guilty. Before proceeding, however,
counsel asked the court to appoint a doctor to evaluate
whether Sturgeon had been competent to understand his
Miranda warnings when being questioned by police. Dr.
Stipes—the first court-appointed doctor—conducted this
evaluation. Sturgeon was taking Haldol and Cogentin as
of the time of this examination, and Dr. Stipes reported
that he was oriented, cooperative, and generally coherent.
Based on his review of his own prior report and those
of the other doctors, as well as the police report and a
clinical examination, Dr. Stipes opined that Sturgeon was
competent to understand his Miranda rights when he
was interviewed by police. A change-of-plea hearing was
scheduled.
  At the guilty-plea hearing, the prosecutor and
Sturgeon’s counsel agreed that the psychiatric reports
generally found Sturgeon competent to proceed as long
as he remained on medication. Judge Nix confirmed that
Sturgeon had taken his medication before coming to
court. The judge then accepted Sturgeon’s guilty pleas to
two counts of aggravated sexual assault and sentenced
him to 45 years in prison. A few weeks later, Sturgeon
moved to withdraw his guilty pleas, claiming he was
not in his “right mind” when he entered them. The motion
was denied, and Sturgeon’s convictions were affirmed on
direct appeal. His subsequent motion for postconviction
relief was also denied, and this decision was likewise
6                                                 No. 06-3934

affirmed on appeal. The Illinois Supreme Court denied
review. Sturgeon then filed this habeas petition.


                       II. Discussion
  Under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), a federal court may not grant habeas
relief from a state-court conviction unless the state-
court decision “was contrary to, or involved an unreason-
able 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 light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The factual
determinations of the state court are presumed correct,
and this presumption may be rebutted only by clear and
convincing evidence. Id. § 2254(e)(1). The burden is on
the petitioner to show that the state court’s determina-
tion of fact or its application of federal law was unrea-
sonable. Id.; Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir.
2004). We review the district court’s legal conclusions
de novo and its factual findings for clear error. Eckstein
v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006).
   Sturgeon contends that his due-process rights were
violated when the state court failed to conduct a mental-
fitness hearing. See Pate v. Robinson, 383 U.S. 375, 385
(1966); 725 ILL . C OMP. S TAT. 5/104-11. He also argues that
his Sixth Amendment right to effective assistance of
counsel was violated both in the trial court and on
appeal; this argument is based on trial counsel’s failure
to secure a fitness hearing and appellate counsel’s failure
No. 06-3934                                                       7

to raise this claim in his direct appeal. The state responds
that Sturgeon’s due-process claim was procedurally
defaulted because he did not fairly present this argu-
ment to the state courts. The state also argues that Stur-
geon’s ineffective-assistance-of-trial-counsel claim is
unreviewable because the Illinois Appellate Court
resolved it on an adequate and independent state
ground, holding that Sturgeon waived this claim by not
presenting it on direct appeal.


    A. Procedural Default; Adequate and Independent
       State Ground
   At the time of Sturgeon’s pretrial proceedings, Illinois
law mandated a competency hearing if the defendant
was taking psychotropic drugs. 725 ILL. C OMP. S TAT. 5/104-
21 (1994);2 People v. Guttierez, 648 N.E.2d 928, 931-32 (Ill.
App. Ct. 1995). Independent of section 104-21, however,
Illinois law also requires a competency hearing if “a bona
fide doubt of the defendant’s fitness is raised.” 725 ILL.
C OMP. S TAT. 5/104-11(a). Though both provisions are



2
   That version of the statute provided: “A defendant who is
receiving psychotropic drugs or other medications under
medical direction is entitled to a hearing on the issue of his
fitness while under medication.” 725 I LL . C OMP . S TAT . 5/104-21
(1994). The provision now reads: “A defendant who is re-
ceiving psychotropic drugs shall not be presumed to be unfit to
stand trial solely by virtue of the receipt of those drugs or
medications.” Id. 5/104-21 (2008); see also People v. Hill, 697
N.E.2d 316, 325 (Ill. App. Ct. 1998) (noting the changes in
statutory language).
8                                               No. 06-3934

designed to protect a prisoner’s right not to stand trial
unless mentally competent, only section 104-11 protects a
constitutional right. See Robinson, 383 U.S. at 385. The
section 104-21 hearing, which was required if the defen-
dant was taking psychotropic drugs, “is merely a statutory
right granted by the legislature.” People v. Mitchell,
727 N.E.2d 254, 265 (Ill. 2000). The Illinois Appellate
Court held that Sturgeon’s section 104-21 claim was not
cognizable on collateral review because it was merely a
statutory right. People v. Burt, 792 N.E.2d 1250, 1257 (Ill.
2001); see also Burt v. Uchtman, 422 F.3d 557, 567 (7th Cir.
2005). Sturgeon does not challenge this ruling.
  Instead, Sturgeon advances a more general due-
process claim based on section 104-11 and the alleged
existence of a bona fide doubt as to his competency to
proceed. Before Sturgeon may present this claim to the
federal courts, he must first have exhausted all available
state remedies. 28 U.S.C. § 2254(b)(1)(A). This required
Sturgeon to fully and fairly present all his federal claims
to each level of review in the state system. Baldwin v.
Reese, 541 U.S. 27, 29 (2004); Chambers v. McCaughtry, 264
F.3d 732, 737 (7th Cir. 2001). “The petitioner must have
placed both the operative facts and the controlling legal
principles before the state courts. A mere passing reference
to a constitutional issue certainly does not suffice.” Cham-
bers, 264 F.3d at 738 (citations omitted) (internal quotation
marks omitted). The argument must be placed in the
petitioner’s brief to the court; the “requirement is not
met if a judge must go outside the four corners of the
document in order to understand the contention’s nature
and basis.” Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir.
2006) (citing Baldwin, 541 U.S. 27).
No. 06-3934                                                 9

   Sturgeon’s state postconviction documents are hardly
the model of clarity. On numerous occasions he
references his rights under both sections 104-11 and 104-
21 without distinguishing between the two. However, at
each level of the state’s postconviction proceedings,
Sturgeon cited both standards (based on “bona fide doubt”
as to his competency, and alternatively, his receipt of
psychotropic drugs) and identified enough case law to
put the court on notice that he was asserting his federal
due-process right to a fitness hearing as well as a
statutory claim. During the hearing on the state’s motion
to dismiss his postconviction petition, Sturgeon’s counsel
drew the court’s attention to Pate v. Robinson, 383 U.S.
375 (holding that the “bona fide doubt” standard ade-
quately protects a prisoner’s due-process right to be tried
only if mentally fit), and reiterated the applicability of the
“bona fide doubt” standard. Sturgeon did the same in
his brief to the Illinois Appellate Court, and he repeated
these arguments in his petition for leave to appeal to the
Illinois Supreme Court. This is enough (though barely) to
satisfy his obligation to fairly present his due-process
claim to all levels of the state-court system. Accordingly,
this claim was not procedurally defaulted.
  The Illinois Appellate Court held that Sturgeon
waived his claim for ineffective assistance of trial counsel
because he did not raise it on direct appeal. When review-
ing a petition for a writ of habeas corpus, a federal court
will not review a question of federal law if the state
decision rested on an adequate and independent state
ground for dismissal, including a state procedural rule.
Page v. Frank, 343 F.3d 901, 905 (7th Cir. 2003). A finding
10                                              No. 06-3934

of waiver by the state postconviction court is enough to
establish an adequate and independent state ground.
Daniels v. Knight, 476 F.3d 426, 431 (7th Cir. 2007).
  Under Illinois law, “[f]ailure to raise a claim which
could have been addressed on direct appeal is a
procedural default which results in a bar to considera-
tion of the claim’s merits in a post-conviction proceed-
ing.” People v. Erickson, 641 N.E.2d 455, 458 (Ill. 1994). An
exception applies to this general rule “in instances
where the facts relating to the claim do not appear on the
face of the original appellate record.” People v. Whitehead,
662 N.E.2d 1304, 1312 (Ill. 1996). “[I]t is not so much that
such a claim could not have been presented or raised by
a party on direct appeal, but rather that such a claim
could not have been considered by the reviewing court
because the claim’s evidentiary basis was de hors the
record.” Id. (internal quotation marks omitted); see also
Schaff v. Snyder, 190 F.3d 513, 524-25 (7th Cir. 1999).
  It is undisputed that Sturgeon did not raise his claim
of ineffective assistance of trial counsel on direct review.
Sturgeon argues, however, that the state decision is not
based on an adequate and independent state ground
because the state court did not acknowledge the “extra
record evidence” he submitted on his postconviction
motion—namely, a psychiatrist’s affidavit and his mental-
health records from Cermak Hospital. However, the
exception applies only where the evidentiary basis for the
claim is outside the record. By Sturgeon’s own admission,
the evidence bearing on his mental competency (e.g., his
erratic behavior and use of psychotropic medication) is
No. 06-3934                                              11

readily apparent in the record of his various pretrial
hearings and in the four different psychological examina-
tions the trial court ordered. All of this information was
within the scope of the appellate court’s review on direct
appeal. See Whitehead, 662 N.E.2d at 1314 (“The underlying
purpose of the exception recognized in Thomas [People v.
Thomas, 231 N.E.2d 436 (Ill. 1967)] was to permit
post-conviction review of matters which were
unreviewable on direct appeal because those matters
depended upon facts not within the trial record.”). The
Illinois Appellate Court’s determination that Sturgeon’s
ineffective-assistance-of-trial-counsel claim was waived is
thus an adequate and independent state ground, and this
claim is unreviewable on federal habeas.


  B. Merits
  Sturgeon argues that the Illinois Appellate Court did not
reach the merits of his due-process claim on collateral
review. AEDPA’s deferential standard of review applies
only to claims that were “adjudicated on the merits in State
court proceedings.” 28 U.S.C. § 2254(d); see also Moore v.
Parke, 148 F.3d 705, 708 (7th Cir. 1998). Although the state
appellate court mentioned the due-process claim and the
“bona fide doubt” standard for determining whether a
competency hearing is required, the court ultimately
merged the statutory and constitutional bases of Sturgeon’s
right-to-a-hearing claim and resolved the issue against him
on statutory grounds. The court did, however, evaluate
whether the evidence established a bona fide doubt as
to Sturgeon’s competency when it resolved Sturgeon’s
12                                               No. 06-3934

claim of ineffective assistance of appellate counsel. The
court held that no bona fide doubt existed about
Sturgeon’s competency to stand trial and therefore he
had not established either prong of the Strickland v. Wash-
ington standard for ineffective assistance of counsel. 466
U.S. 668 (1984). The court could not have decided the
same “bona fide doubt” question any differently in the
context of Sturgeon’s due-process claim, so the merits
were effectively reached.
  Accordingly, both of Sturgeon’s remaining
claims—his due-process claim based on the trial court’s
failure to conduct a competency hearing and his claim
for ineffective assistance of appellate counsel based on
counsel’s failure to raise this issue on direct appeal—may
be addressed by reviewing the state appellate court’s
application of the “bona fide doubt” standard. That is, the
due-process and ineffective-assistance-of-counsel stan-
dards effectively present the same question: whether
there was substantial or “bona fide” reason to doubt
Sturgeon’s competency to stand trial. If the record does
not establish a bona fide doubt as to his competency,
then Sturgeon could not have suffered a due-process
violation, nor could his appellate counsel have rendered
deficient performance by failing to raise the issue on
direct appeal. Moreover, Sturgeon was required to demon-
strate that he was prejudiced by his appellate counsel’s
failure to raise the issue on direct appeal. Id. at 691-96. To
do so, he must likewise have established that bona fide
doubt about his fitness existed, and if so, that there was a
reasonable probability that he was not fit to stand trial.
Eddmonds v. Peters, 93 F.3d 1307, 1316-17 (7th Cir. 1996).
No. 06-3934                                                13

   Again, our review of the state court’s decision is deferen-
tial. The “state court’s factual determinations are
presumed to be correct”—a presumption that can be
rebutted only by clear and convincing evidence; the
“ ‘unreasonable application’ prong [of AEDPA] in particu-
lar is difficult to show.” Woods v. McBride, 430 F.3d 813,
816-17 (7th Cir. 2006). “ ‘[U]nreasonable’ in this context
means ‘something like lying well outside the boundaries
of permissible differences of opinion.’ ” Id. (quoting
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).
  Where there is “ ‘substantial reason to doubt the defen-
dant’s fitness,’ due process obligates the trial judge sua
sponte to order a competency hearing.” Eddmonds, 93
F.3d at 1316 (quoting Phillips v. Lane, 787 F.2d 208, 216 (7th
Cir. 1986)); see also Burt v. Uchtman, 422 F.3d at 564. The
inquiry is highly individualized. “There are . . . no fixed
or immutable signs which invariably indicate the need
for further inquiry to determine fitness to proceed; the
question is often a difficult one in which a wide range
of manifestations and subtle nuances are implicated.”
Drope v. Missouri, 420 U.S. 162, 180 (1975). Relevant
factors include any evidence of irrational behavior, the
defendant’s demeanor in court, and any medical opinions
on the defendant’s competency to stand trial. Id.
  The Illinois Appellate Court traced, in considerable
detail, Sturgeon’s documented history of mental illness,
his receipt of psychotropic medications, his occasional
erratic in-court behavior (noted above), and the results of
the court-ordered competency evaluations. Ultimately,
the court relied on the unanimity among the medical
14                                             No. 06-3934

experts in concluding that Sturgeon had not demon-
strated a bona fide doubt as to his competency. On this
record, this conclusion is unassailable. Sturgeon hasn’t
presented clear and convincing evidence to contradict
the doctors’ conclusions. The state court’s reliance on the
medical opinions—from four doctors who conducted
five separate competency examinations—was well within
the bounds of permissible differences of opinion. Accord-
ingly, the state court’s decision was neither an unreason-
able determination of the facts nor an unreasonable
application of the “bona fide” or “substantial reason to”
doubt standard.
  For all the foregoing reasons, the judgment of the
district court denying habeas relief is A FFIRMED.




                          1-13-09
