                                   ___________

                                   No. 95-3070
                                   ___________

Mark A. Schumacher,                     *
                                        *
           Appellant,                   *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * District of Nebraska.
Frank X. Hopkins, Warden,               *
Nebraska State Penitentiary,            *
                                        *
           Appellee.                    *
                                   ___________

                      Submitted:   February 14, 1996

                          Filed:   May 21, 1996
                                   ___________

Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

BEAM, Circuit Judge.


     In 1990, a jury found Mark Schumacher guilty of first degree sexual
assault, two counts of first degree false imprisonment, and two counts of
using a firearm to commit a felony.          During his sentencing, he was
classified as a nontreatable mentally disordered sex offender.    His state
court appeal and postconviction actions were unsuccessful.   Schumacher then
filed a petition for habeas corpus under 28 U.S.C. § 2254 in federal
district court, alleging that ineffective assistance of counsel rendered
his sentencing classification invalid.       The district court1 denied the
petition and we affirm.




     1
      After de novo review, the Honorable Richard G. Kopf, United
States District Judge for the District of Nebraska adopted the
report and recommendation of United States Magistrate Judge David
L. Piester.
I. BACKGROUND


     On the night of April 2, 1990, Schumacher and an accomplice went out
in search of drugs and/or money.         Their quest led them to take two people
from two different homes, at gunpoint, in the hopes that the captives could
facilitate their undertaking.      While transporting the hostages to a third
home, the pair discussed whether they would kill their female victim.
While his accomplice approached the third home with one of the captives,
Schumacher sexually assaulted and raped the other detainee.        Police arrived
while he was in flagrante delicto.          After trial, the court received the
results of two postconviction psychiatric examinations and determined that
Schumacher    was    a    nontreatable     mentally   disordered   sex   offender.
Schumacher, who faced potential sentences of fifty years for the rape, five
years for each false imprisonment, and twenty years for each firearms
offense, received sentences of five to ten years for the rape count, one
to two years for each false imprisonment count, and one year on each
firearms count.     See State v. Schumacher, 480 N.W.2d 716, 717 (Neb. 1992).



     Schumacher appealed his convictions and sentence to the Nebraska
Supreme Court, arguing that there was insufficient evidence and that his
sentence was excessive.      That court affirmed the convictions and sentence.
Id. at 719.   He then filed state postconviction actions contesting aspects
of the trial court's determination that he was not a treatable mentally
disordered sex offender.     State v. Schumacher, No. A-93-574, 1994 WL 114338
(Neb. App. Apr. 5, 1994).       The trial court denied relief and the appeals
court affirmed.     Id.


     Schumacher subsequently filed this federal habeas corpus petition,
which the district court denied without an evidentiary




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hearing.2     Schumacher appeals.       He argues that his trial counsel was
ineffective for: 1) failing to request a second set of psychiatric
sentencing examinations, as was Schumacher's statutory right; 2) failing
to   inform   Schumacher    of   all   the   adverse   consequences    flowing   from
classification as a nontreatable mentally disordered sex offender; and 3)
failing to object to the receipt of one of the exams which Schumacher
claims relied on statements obtained in violation of his Miranda rights.


II. DISCUSSION


          We review the application of the law to the evidence underlying
ineffective assistance of counsel de novo, while giving the appropriate
deference to any lower court adjudication of the historical facts.           Wycoff
v. Nix, 869 F.2d 1111, 1117 (8th Cir.), cert. denied, 493 U.S. 863 (1989).
Thus, in considering Schumacher's claims of ineffective assistance of
counsel, we consider two legal questions:          whether counsel's performance
was constitutionally deficient; and if so, whether the defendant was
prejudiced by that deficient performance.         Kenley v. Armontrout, 937 F.2d
1298, 1303 (8th Cir.), cert. denied, 502 U.S. 964 (1991).             In considering
the first prong, we must defer to counsel's strategic decisions and must
not succumb to the temptation to be Monday morning quarterbacks.           Snell v.
Lockhart, 14 F.3d 1289, 1301 (8th Cir.), cert. denied, 115 S. Ct. 419
(1994).     It is the defendant's burden to overcome the strong presumption
that counsel's actions constituted objectively reasonable strategy under
the circumstances.    Id.   If the petitioner shows that counsel's performance
was constitutionally deficient, he or she must then




      2
      Despite appellee's contrary impression, Schumacher has made
no arguments as to the denial of the evidentiary hearing. This is
most probably because petitioner realizes he has not met the
requisite burden.    See Townsend v. Sain, 372 U.S. 293, 312-13
(1963), overruled, in part, on other grounds, Keeney v. Tamayo-
Reyes, 504 U.S. 1, 4 (1992).

                                         -3-
establish that the deficient performance prejudiced the outcome of the
proceeding, i.e., that counsel's conduct rendered the result of the
proceeding unreliable.      See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
A necessary condition for establishing prejudice is to show that there is
a reasonable probability that but for counsel's unprofessional errors, the
result of the proceeding would have been different.         Id. at 368-70.


     A. Failure to Request Further Psychiatric Exams


     We agree with the well-reasoned opinion of the district court that
Schumacher has not alleged any facts that demonstrate prejudice resulting
from his counsel's decision not to request a second set of psychiatric
examinations.    Schumacher has not even hinted at the existence of proof
that a second set of tests would have made any difference in the outcome
of the proceeding.


     However, even more fundamentally, counsel's decision not to request
a second battery of exams was eminently reasonable.         Under the statutory
scheme in effect at the time of Schumacher's sentencing, all defendants
convicted of sexual offenses in Nebraska were given presentence psychiatric
examinations.    Neb. Rev. Stat. §§ 29-2912 & 2913 (Reissue 1989).      The exams
were designed to aid the sentencing court in deciding, by clear and
convincing evidence, whether a defendant was a Mentally Disordered Sex
Offender (MDSO).   Id.; State v. Harris, 463 N.W.2d 829, 834-35 (Neb. 1990).
The answer in no way affected the term of incarceration to which a
defendant was sentenced, id. at 834; State v. Miller, 381 N.W.2d 156, 158
(Neb. 1986), but, rather, permitted the state to adopt the most appropriate
rehabilitation     scheme    to   be   followed   during   the   sex   offender's
incarceration.


     If a defendant was found to be an MDSO, a second question arose:
whether such mental disorder was treatable?       This determination again aided
the state in its allocation of treatment




                                        -4-
resources.       Neb. Rev. Stat. §§ 29-2914 & 2915 (Reissue 1989).       Any
defendant found to be an MDSO, treatable or nontreatable, faced a mandatory
civil commitment proceeding upon his release from prison.       Id. at § 29-
2920.


        Once two psychiatrists had come to the conclusion that Schumacher was
an MDSO based on an interview with him, his background, and the facts of
his crime, it was a reasonable strategy to forego further exams which, as
likely as not, would have added more unfavorable material to Schumacher's
file.       This information would be available at the later mandatory civil
commitment proceeding.        If Schumacher did not amass a portfolio of
unfavorable psychiatric reports, counsel could reasonably have hoped that
Schumacher's conduct during his incarceration, where he would be divorced
from alcohol (apparently his main enemy), would be such that later civil
commitment would be less likely.     Faced with unanimity on defendant's MDSO
status, this was a reasonable strategy.          Thus, we cannot find that
counsel's performance was objectively unreasonable.


        B. Failure to Advise Petitioner of the Adverse Consequences
           of Nontreatable MDSO Status

        At the sentencing hearing, Schumacher's counsel advised the court
that, after consultation, he and Schumacher had decided not to request
further examination, and that they felt it was in Schumacher's best
interests to be classified as a nontreatable MDSO.     Thus, counsel did not
challenge the psychiatric report finding Schumacher to be nontreatable.3
Schumacher now argues that had he known of the adverse consequences
attaching to the finding of nontreatability, he would not have consented
to the classification.      However, the adverse consequences to which




        3
     While both examining psychiatrists found Schumacher to be an
MDSO, one found him to be treatable and the other found him to be
nontreatable.

                                      -5-
Schumacher objects (he mentions stigma and the commitment hearing) inhere
in an MDSO classification itself and are not limited to a person in
nontreatable status.


     Schumacher states that the record does not show that his attorney
advised him of adverse consequences.          Our review of the record, however,
shows that Schumacher and his counsel went over the reports and discussed
which classification, treatable or nontreatable, would be in his best
interests.     While both treatable and nontreatable MDSOs face commitment
proceedings at the end of their terms, if classified as treatable,
Schumacher faced immediate assignment to a Regional Center--the State of
Nebraska's primary mental institutions.        Neb. Rev. Stat. § 29-2915 (Reissue
1989).    Thus, Schumacher could clearly have preferred to duck that
immediate threat and hoped to have sufficiently rehabilitated himself by
the end of his prison term to prevail at the inevitable commitment
proceedings, in which case he would be able to avoid such assignment
altogether.    This calculus is not objectively unreasonable, and we see no
deficient performance.       Schumacher does not deny that this was his
calculus, he merely alleges that we cannot discern the substance of his and
counsel's admitted strategy as to the treatable/nontreatable determination
from the record.   Given established consultation and a strategically wise
choice,   we   decline   Schumacher's   invitation    to   speculate   as   to   the
deficiencies of that consultation.        Further, as the district court held,
Schumacher has not alleged any facts showing prejudice, that is, that, but
for counsel's advice he would not be classified as a nontreatable MDSO.


     C. Failure to Object to Examining Psychiatrist's Use of
        Exculpatory Statements


     Schumacher's final argument is that his counsel was ineffective
because counsel did not object to the report of the psychiatrist who found
him to be nontreatable.     That report




                                        -6-
referred     to   protestations   of   innocence   that   Schumacher   made   at   the
interview.    Schumacher now argues that use of exculpatory statements made
during the interview to determine his status as nontreatable violates his
Fifth Amendment rights as interpreted by Estelle v. Smith, 451 U.S. 454
(1981).4   From this argument, Schumacher makes the leap in logic that his
counsel was therefore constitutionally ineffective for failing to object
to the receipt of that report.


      While we make no finding as to the application of Estelle to the
statutory scheme for classifying convicted sex offenders in effect at the
time of Schumacher's sentencing, counsel is not ineffective for failing to
make an objection which he or she reasonably believes is against the
defendant's interests.     Here, faced with two psychiatric reports diagnosing
Schumacher as an MDSO, counsel's obvious strategy was to help Schumacher
avoid immediate commitment by being classified as nontreatable as opposed
to treatable.       Counsel's acceptance of the report in question, without
objection, was therefore reasonable and did not constitute deficient
performance.




      4
      In Estelle, the Supreme Court found that the state's use of
a defendant's preconviction statements, made in a psychiatric exam
given for another purpose, during the penalty phase of a capital
case violated the defendant's Fifth and Sixth Amendment rights.
451 U.S. at 454. Estelle, however, by its own terms, does not
apply to all uses of presentencing interviews, id. at 469 n.13, and
may be distinguishable on the merits. In Estelle, the Court was
faced with a pretrial psychiatric competency examination which was
used by the state at the penalty phase of Estelle's capital murder
trial to show his future dangerousness. Unfortunately, Estelle's
counsel was evidently unaware of the interview which had been
ordered sua sponte by the trial court. The interview took place
without Estelle's counsel's permission and without counsel being
able to advise Estelle as to his interests; the interview was used
for a purpose other than that for which it was ordered (competency)
thus vitiating any hypothetical advice of counsel; and the
interviewing psychiatrist was allowed to testify, over defendant's
objections, despite not appearing on the witness list and despite
counsel's actual surprise. None of these factors are present in
Schumacher's case.

                                         -7-
       Finally, despite Schumacher's contrary contentions, the diagnosis
of nontreatability was not based uniquely on Schumacher's protestations of
nonculpability at the interview.   An attorney does not provide ineffective
assistance by failing to make an objection which is of dubious factual and
unknown legal merit, and which runs counter to his client's interests.


III. CONCLUSION


     Because Schumacher received constitutionally effective assistance of
counsel, the district court's denial of his petition for a writ of habeas
corpus is affirmed.


     A true copy.


           Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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