In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3657

ALAN L. MATHENEY,

Petitioner,

v.

RONDLE ANDERSON,

Respondent.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 C 183--Allen Sharp, Judge.

ARGUED JUNE 29, 2000--DECIDED June 18, 2001


  Before COFFEY, KANNE and ROVNER, Circuit
Judges.

  COFFEY, Circuit Judge. On March 7, 1989,
the State of Indiana charged Alan
Matheney in a two-count indictment with
murder and burglary. Matheney entered a
plea of not guilty as to both counts. In
April 1990, an Indiana jury found
Matheney guilty on both counts and
recommended the death penalty. The trial
judge agreed, and on May 11, 1990,
Matheney was sentenced to death.

  After exhausting his state remedies,
Matheney filed a petition on July 10,
1998, in federal court pursuant to 28
U.S.C. sec. 2254 for a writ of habeas
corpus challenging his convictions and
death sentence. On July 30, 1999, the
district court, without holding an
evidentiary hearing, denied Matheney’s
habeas petition. See Matheney v.
Anderson, 60 F. Supp. 2d 846 (N.D. Ind.
1999). The court proceeded to grant a
certificate of appealability on two
issues: (1) whether the state trial court
"should have found the petitioner
incompetent to stand trial or, in the
alternative, should have granted an
evidentiary hearing on the petitioner’s
competency to stand trial"; and (2)
"whether the petitioner was denied
effective assistance of counsel at the
penalty and the sentencing phases of his
trial . . . ."
  With respect to the second issue,
Matheney claims that his trial attorney’s
performance fell below an objective
standard of reasonableness when the
attorney did not call the defense
psychiatrist, Dr. Helen Morrison, to the
stand during the penalty phase of the
trial. Dr. Morrison had previously
testified during the guilt phase of the
trial, in support of Matheney’s defense
of insanity, that she believed Matheney
suffered from a mental disease or defect
at the time of the murder. Matheney
claims that if Dr. Morrison had been
called to the stand during the penalty
phase, she could have offered testimony
to establish the existence of a factor
mitigating against imposition of the
death penalty--that a mental disease or
defect rendered Matheney incapable of
conforming his conduct to the
requirements of the law. We reject
Matheney’s claim because the trial judge,
who is the ultimate decision-maker in
matters of capital sentencing under
Indiana law, stated on the record that he
gave no weight to this mitigating factor
because, after hearing the testimony
during the guilt phase of the trial, he
agreed with the two court-appointed
psychiatrists that Matheney suffered from
no mental disease or defect at the time
of the murder. Thus, we are convinced
that Matheney has failed to demonstrate a
reasonable probability that additional
testimony from Dr. Morrison during the
sentencing phase of the trial would have
resulted in imposition of a sentence
other than death.

  However, we remand this case for an
evidentiary hearing on issues related to
Matheney’s alleged incompetency to stand
trial and his lawyer’s performance on
issues related thereto. Matheney’s trial
attorneys filed a petition requesting the
trial court to order independent
psychiatrists to perform both a
competency evaluation and a sanity evalu
ation. They then failed to follow through
with the request for a competency
evaluation after the trial court failed
to include it in its order for a sanity
evaluation. Given that a legitimate
question has been raised as to Matheney’s
competency to stand trial and his
lawyer’s performance on this issue, we
remand the case for an evidentiary
hearing.
I.   BACKGROUND

  On March 4, 1989, the defendant, while
on an eight-hour pass from prison,
brutally murdered Lisa Bianco (his ex-
wife and the mother of his two daughters,
Amber and Brooke). The core facts of this
case were succinctly set forth in the
Indiana Supreme Court’s opinion denying
Matheney’s direct appeal of his
conviction:

On March 4, 1989, appellant was given an
eight-hour pass from the Correctional
Industrial Complex in Pendleton, Indiana
where he was an inmate. Appellant was
serving a sentence for Battery and
Confinement in connection with a previous
assault on his ex-wife, Lisa Bianco, who
was the victim in this case. The
passauthorized a trip to Indianapolis;
however, appellant drove to St. Joseph
County. Appellant went to the house of a
friend, Rob Snider, where he changed
clothes and removed an unloaded shotgun
from the house without the knowledge of
those present.

Appellant then drove to Mishawaka. He
parked his car not far from Bianco’s
house and broke in through the back door.
Bianco ran from her home, pursued by
appellant. Neighbors witnessed the chase
that ensued.

When appellant caught Bianco, he beat her
with the shotgun which broke into pieces.
One neighbor confronted appellant and saw
him get into a car and drive away.
Appellant surrendered to a policeman
later that afternoon. The autopsy showed
that Bianco died as a result of trauma to
the head from a blunt instrument.

Matheney v. State, 583 N.E.2d 1202, 1204-
05 (Ind. 1992), cert. denied, 504 U.S.
962 (1992).

  It is worth noting that at trial the
prosecution introduced overwhelming
evidence of Matheney’s murder of Bianco.
Ray Matheney, appellant’s brother, and
Rob Snider, a friend of appellant,
testified at trial that Alan Matheney
arrived at Snider’s home at about 1:00
p.m. on March 4, 1989. Snider further
testified that when Petitioner left
Snider’s home approximately one hour
later, a gun belonging to Snider’s step-
son was missing. Matheney’s daughter,
Brooke, testified that she was at home
with her mother in St. Joseph County on
the afternoon of the Fourth when she saw
her father enter the house and confront
her mother. At her mother’s request,
Brooke ran next door to the home of
Denise Sloan and asked Sloan to call the
police. Sloan and several other neighbors
testified that they watched Matheney
violently assault and murder Bianco in
the middle of the street by repeatedly
striking her with a rifle./2 The
evidence was so powerful that when
defense counsel began his opening
statement, he admitted: "On March 4,
1989, in the early afternoon, Alan
Matheney beat his ex-wife to death in
broad daylight, on a public streetcorner,
in Mishawaka, Indiana." Defense counsel
went on to argue that Matheney was insane
at the time of the killing, his legal
defense. Thus, Matheney’s petition for
habeas corpus relief centers not on a
claim of innocence, but rather that the
legal system failed to properly insure
that he was mentally competent to stand
trial for his crimes and subsequently to
be sentenced to death.

A.   Pre-Trial Proceedings

  Subsequent to charges being filed
against Matheney in the St. Joseph County
Indiana Superior Court, the court
appointed the Public Defender’s Office to
represent him. Public Defenders Philip
Skodinski and Charles Lahey were jointly
appointed and entered an appearance on
Matheney’s behalf. After defense
counsels’ initial consultation with their
client, they learned that Matheney was of
the belief that his ex-wife had been
having an affair with a local county
prosecutor, Mike Barnes, and further,
that Matheney allegedly believed the two
had schemed to falsely imprison Matheney
on trumped-up battery and confinement
charges to "keep him out of the way."

  On March 14, 1989, after learning of his
client’s belief in this conspiracy
against him, Skodinski filed a "Notice of
Insanity Defense and Request for
Examination by Out-of-Area Psychiatrists
for Purpose of Determining Competency to
Stand Trial and Sanity at the Time of the
Alleged Offense." The motion requested
"the appointment of two court-appointed
psychiatrists, from outside St. Joseph
County for the purpose of determining [1]
the Defendant’s competency to stand trial
and [2] mental state at the time of the
alleged offense." (emphasis added).

  On March 27, 1989, the court held a
hearing on defense counsel’s motion and
issued an order appointing two
independent psychiatrists, Drs. Myron
Berkson and George Batacan, to evaluate
Matheney. The court’s minutes state that
the court ordered the doctors to evaluate
Matheney as to (1) his sanity at the time
of the offense, as well as (2) his
competency to stand trial:

The Court further indicates that on March
27th this Court appointed Drs. Berkson
and Balacan [sic], both of Michigan City,
Indiana, for the purpose of determining
competency to stand trial and sanity.

But on the same day as the hearing, the
trial judge also signed a mimeographed
order entitled "Order for Examination
Concerning Sanity." This order made no
mention of an investigation to determine
the defendant’s present competency to
stand trial, but rather directed Drs.
Berkson and Batacan to evaluate Matheney
only with regard to his sanity at the
time of the murder:

The Defendant, by his attorney of record,
Phillip Skodinski, having filed notice of
defense of insanity, the court now
appoints Dr. Myron Berksen [sic], M.D.
and Dr. George A. Balacan [sic], M.D. to
examine the defendant, to file a written
report with the court, and to testify at
hearing concerning the sanity or insanity
of the defendant at the time of the
alleged offense.

****

Evidentiary hearing on defendant’s sanity
or insanity to be set upon receipt of the
doctor’s reports by the court. (emphasis
added)./3

  Furthermore, when the court implemented
its order and issued written instructions
to the court-appointed doctors dealing
with the scope of the psychiatric reports
to be submitted , the court failed to
direct the doctors to conduct and make
findings regarding Matheney’s competency
to stand trial, as originally requested
by defense counsel. Instead, the court’s
order limited the doctors’ attention to
the question of Matheney’s sanity at the
time of the commission of the crimes
charged. The court’s instructions to the
independent psychiatrists read in
pertinent part as follows:

IN YOUR OPINION, IS IT POSSIBLE THE
DEFENDANT MAY HAVE BEEN INSANE AT THE
TIME OF THE CRIME? DATE OF CRIME:

FROM YOUR EXAMINATION OF THE DEFENDANT,
DO YOU HAVE AN OPINION AS TO WHETHER THE
DEFENDANT, AS A RESULT OF MENTAL DISEASE
OR DEFECT, WAS UNABLE TO APPRECIATE THE
WRONGFULNESS OF HIS CONDUCT AT THE TIME
OF THE OFFENSE?

"MENTAL DISEASE OR DEFECT" MEANS A
SEVERELY ABNORMAL MENTAL CONDITION THAT
GROSSLY AND DEMONSTRABLY IMPAIRS A
PERSON’S PERCEPTION, BUT THE TERM DOES
NOT INCLUDE AN ABNORMALITY MANIFESTED
ONLY BY REPEATED UNLAWFUL OR ANTISOCIAL
BEHAVIOR/4


B. The Doctors’ Reports

  1. Drs. Batacan and Berkson individually
reported to the court that Matheney was
sane at the time he committed the crimes

   a. Dr. Batacan

  Dr. Batacan filed a five page
undated/5 report with the court
indicating that he interviewed Matheney
on two separate occasions, April 12,
1989, and June 21, 1989, "to determine
the question of [Matheney’s sanity] at
the time of the commission of crime."
Batacan’s comprehensive report details,
in narrative fashion, statements Matheney
made during these interviews which
explain how his anger lead to the murder
of Bianco:

When he left [the prison, Matheney] drove
to Granger to his family’s home from
where he called his wife [Bianco]. . . .
She told him that they [Bianco and the
prosecutor] would file more charges
against him [and] that he’ll never get
out of prison. He grabbed an unloaded gun
from a friend’s house where he left some
of his personal belongings. He was very
upset at the time. Several things were
going through his mind like "She killed
her brother by giving him drugs, he was a
good friend of mine. . . . I have two
beautiful children and she left them and
they were playing with drugs. She abused
those children. She was a hateful person
. . . . I have no remorse for what
happened, it was bound to happen because
they put me in a position that I’ll never
get out of prison."

  After Dr. Batacan completed two
psychiatric interviews of Matheney which
lasted a total of five hours, he made the
following findings:

The defendant maintained a level of
mental alertness throughout the
examination and [was] able to engage in
a[n] interview with spontaneity and
cooperativeness. He is responsive,
attentive and rather vigilant. His
alertness refers to his ability to give
an orienting response to the questions
about any emotionally meaningful stimuli.
He is coherent [in both] speech and
thought. He sustains an ongoing ability
of concentration without disruption. He
is soft spoken and articulate.

He has an intact memory for both remote
and recent events. He is fully oriented
to time, place, person and specific
situations. He denies experiencing
unrealistic ideas and feelings. He has
not experienced any distorted
interpretation and perception of reality,
such as hallucinations and delusions. His
feelings of being aggrieved and beliefs
of being unjustly [treated] are very real
to him. His affect is appropriate. He
does not show any signs and symptoms of
mental disease or mental defect now nor
during the event in question.

  After relating his observations and
findings, Dr. Batacan concluded that,
despite Matheney’s continuing belief that
his imprisonment was the product of a
conspiracy directed by a county
prosecutor, Matheney "was legally sane at
the time of the commission of the crime."
Dr. Batacan concluded that (1) Matheney
was not suffering from any form of
"mental disease or defect" either at the
time of the interviews or at the time of
the murder of his ex-wife, and (2)
Matheney was capable of recognizing the
wrongfulness of his actions at the time
the crime was committed.
   b. Dr. Berkson

  After interviewing Matheney twice,/6
Dr. Berkson filed a report dated April
19, 1989, opining "that Alan Matheney did
not suffer from a mental disease or
defect such [that] he was unable to
appreciate the wrongfulness of his
conduct at the time of the offense." Like
Dr. Batacan, Dr. Berkson supported his
opinion that Matheney was legally sane
during the commission of his crimes by
noting the observations he made while
interviewing Matheney:

He stated he was in good health, he was
aware of the nature of the charges
against him, he was aware of the
functions of the various individuals
involved in courtroom proceedings, he was
aware of the difference between a lie and
a mistake . . . . His verbalizations were
generally logical, sequential, goal
directed, and usually self serving. He
talked of his relationship with his ex-
wife who he felt had a personal
relationship with the prosecutor ****
[Matheney] reports he was told [that he
could not serve time in an out-of-state
jail], then he proceeded to give a rather
detailed account of his activities on the
day of the alleged offense.

He talked of increasing anger at his ex-
wife because he felt she was keeping him
incarcerated, that he had gone to her
home to get tapes that would have shown
he had done nothing wrong, that she and
Michael Barnes had no intention "of
letting me out of jail and would file
other charges against me." He then
detailed the rest of the events.

2. Neither Dr. Berkson nor Dr. Batacan
rendered an opinion concerning Matheney’s
competency to stand trial.

  As discussed previously, there is
nothing in the record demonstrating that
Drs. Batacan and Berkson were ever
informed that competency to stand trial
was an issue to be evaluated or by what
standard competency was to be measured
under Indiana law. As a result of this
breakdown in communication, it is not
surprising that neither Dr. Batacan nor
Dr. Berkson filed reports relating a
conclusion as to Matheney’s competency to
stand trial.
  Conversely, it is startling that neither
Matheney’s counsel (who had properly seen
fit to file a motion requesting an
examination of Matheney’s competency to
stand trial) nor the trial judge (who,
according to the court’s minutes,
purportedly ordered Drs. Batacan and
Berkson to evaluate Matheney’s competency
to stand trial at the March 27, 1989
hearing on defense counsel’s motion) ever
raised a question regarding the reports’
omission or inquired of the doctors as to
whether they believed Matheney was
competent to stand trial. The joint
failure of defense counsel, the
prosecution, and the court itself to (1)
obtain qualified psychiatric evaluations
from mental health professionals and (2)
hold the hearing on defendant’s
competency to stand trial that defense
counsel had requested is particularly
perplexing in light of the fact that this
is a capital offense case.

C. The Change of Venue

  On March 20, 1989, the prosecution
initially filed a motion for a change of
venue to move the trial from St. Joseph
County, Indiana, which Matheney’s public
defenders successfully opposed. Later
that year, Matheney personally concluded
that a trial outside of St. Joseph County
would shield him from the influence
supposedly wielded by prosecutor Michael
Barnes, whom he believed to be the
ringleader of the conspiracy./7 Matheney
consequently filed a pro se motion
requesting a change of venue, and at the
December 21, 1989, hearing on the motion
Matheney argued (over the strenuous
objections of his attorneys) for a change
of venue based on his belief that the
alleged relationship between his deceased
ex-wife and Barnes would taint his
ability to get a fair trial in St. Joseph
County, where Barnes served as a county
prosecutor. At the hearing on his motion,
Matheney stated:

I feel that there is to [sic] many major
issues being overlooked in this case and
I feel the reasons for that is because of
the victim’s relationship with a certain
prosecutor. I also have copies of
statements from other witnesses of a
trial back in ’87 where witnesses were
told certain things and the same thing is
being repeated with the same witnesses.
They are being told to say certain things
by the prosecution . . . .

****

These attorneys here [his defense
counsel], they’re friends with Prosecutor
Barnes in this case and they are not
going to go in front of the courtroom and
give a --, produce evidence to show that
this guy was criminally involved in this
case. They got to work with this man
every day. To many issues of this --,
Frankenstein is being overlooked, so I
feel that by taking this out of the
County, then I can get a hold of a Judge,
whoever is going to sit on it, and try to
convince him . . .

  The trial judge granted Matheney’s pro
se motion for a change of venue, and the
case was transferred to Lake County and
assigned to Judge James Letsinger. As a
result of the transfer of the case to
Lake County, the court-appointed public
defenders (Skodinski and Lahey) requested
that they be permitted to withdraw from
representing Matheney./8 Judge Letsinger
denied defense counsels’ request to
withdraw, but did appoint Scott King, a
Lake County defense lawyer well-versed in
the defense of death penalty cases, to
act as lead defense counsel. Skodinski
and Lahey were instructed to remain as
co-counsel and assist when necessary.

D.   Trial

  As noted previously, Matheney’s trial
strategy admitted the murder of Bianco,
but asserted that he was unable to
appreciate the wrongfulness of his
conduct at the time of his offense as the
result of a mental disease or defect, and
therefore legally insane. See Ind. Code
sec. 35-41-3-6(a). To this end, defense
counsel called Matheney’s sisters who
testified that he exhibited delusional
behavior in jail when he requested copies
of nonexistent documents that supposedly
revealed the existence of Bianco’s affair
with prosecutor Barnes and its relation
to his continued imprisonment. Defense
counsel also called as witnesses
attorneys who had previously represented
Matheney in civil actions and thus were
aware of his allegedly delusional
behavior. Matheney’s lawyers also called
Dr. Helen Morrison, his defense
psychiatrist, as their final witness./9
She testified that she had: 1)
interviewed Matheney; 2) reviewed his
previous mental history and reports,
including the court-ordered reports of
Drs. Batacan and Berkson; and 3) reviewed
tapes of recorded phone conversations
between Matheney and Bianco. According to
Dr. Morrison, Matheney suffered from a
"severe paranoid personality disorder
that impairs his perceptions of reality
and his perception of what is going on."
Furthermore, Dr. Morrison opined that
Matheney’s paranoid personality disorder
was "consistent" with the definition of a
"mental disease or defect" used in
Indiana’s insanity defense.

   Interestingly, Dr. Morrison did not
offer any opinion (nor was she asked by
any party or the court) whether Matheney
could distinguish right from wrong at the
time of the commission of the crime, as
required by Indiana’s insanity defense
statute. Ind. Code sec.35-41-3-
6(a)./10 In fact, at post-trial
deposition on October 7, 1994, Dr.
Morrison testified that Matheney could
appreciate the wrongfulness of his
conduct at the time of the crime, and
thus was sane:

Q: [I]n your opinion did Mr. Matheney
understand the difference between right
and wrong?

A: Yes, he did.

****

Q: Did you and Mr. King [defense counsel]
ever discuss your inability to opine that
as to the second prong or the volitional
prong of the insanity defense in Indiana?

A: I am not certain what you mean.

Q: In your opinion Mr. Matheney could
distinguish between right and wrong?

A: Yes.

Q: Did you and Mr. King ever discuss the
fact that in your testimony you cannot
satisfy the cognitive portion of the
insanity defense?

A: No.

  After the defense rested, the trial
court called and questioned both the
court-appointed psychiatric experts, Dr.
Batacan and Dr. Berkson, each of whom
testified that Matheney was sane at the
time he murdered his ex-wife because he
was not suffering from "a mental disease
or defect." On April 11, 1990, after one
day of deliberation, the jury returned a
verdict of guilty on both counts.

E. Sentencing

  On April 12, 1990, a sentencing hearing
was conducted before the same jury that
had determined Matheney’s guilt. At
sentencing, neither the defense, the
prosecution, nor the court chose to
recall Dr. Morrison, Dr. Batacan, or Dr.
Berkson. Defense counsel pursued a
primary strategy of calling character
witnesses, who testified that Matheney
was a good father to his children, in an
effort to stave off the death penalty. In
his closing statement during sentencing,
defense counsel relied primarily on the
testimony of these character witnesses in
asking the court to spare Matheney’s
life:

[We heard] testimony from the two friends
of his, about Alan, and his brother was
one of them, about Alan with the
children. . . . He has produced and
contributed to society, and has produced
children. He has endeavored to maintain
contact with his children, his daughters.
There are positive aspects of this man.
There is a humanity in this man.

  Although relying primarily on character
witnesses, defense counsel also argued
that at the time of the murder, Matheney
was unable to conform his conduct to the
requirements of the law due to a mental
disease or defect. Ind. Code sec. 35-50-
2-9(c) lists the mitigating circumstances
that a jury may consider when deciding
whether to recommend the imposition of
the death penalty. One qualifying circum
stance, known as the "inability to
conform" mitigator, states that capital
punishment may not be appropriate if:

[t]he defendant’s capacity to appreciate
the criminality of the defendant’s
conduct or to conform that conduct to the
requirements of law was substantially
impaired as a result of mental disease or
defect . . . .

Ind. Code sec. 35-50-2-9(c)(6). At the
sentencing hearing, defense counsel
asserted that the testimony elicited at
trial established that Matheney suffered
from a mental disease or defect that
substantially impaired his ability to act
lawfully:

Third, is subsection 6 under the
mitigating circumstances, the ability to
conform to the requirements of the law,
appreciate wrongfulness of conduct, due
to the existence of mental illness,
mental disease. It’s a cousin, sort of,
of the insanity defense.

We have presented evidence, I believe,
simply not medical evidence, but other
evidence: something was wrong. And
something was wrong with Mr. Matheney.
Did he know right from wrong? There’s
arguments that are advanced and were
advanced both ways. But here, we have the
additional clause of the ability to
conform one’s conduct to the requirements
of the law even if one is able to
appreciate the wrongfulness of that
conduct.

  The jury rejected the defense’s
arguments and returned a unanimous
recommendation that the death penalty be
imposed. The trial judge agreed with the
jury’s recommendation, and on May 11,
1990, Matheney was sentenced to
death./11

F. State Court Post-Conviction
Proceedings

  In November 1992, Indiana Public
Defender Jeff Merryman was substituted by
the Public Defender’s Office to represent
Matheney. On November 25, 1992, Merryman
filed a petition in Indiana state court
requesting post-conviction relief on
Matheney’s behalf. At a September 9,
1994, hearing on the petition held before
a state court magistrate, Merryman filed
an amended petition for post-conviction
relief raising the question of Matheney’s
competency to stand trial./12 The
amended petition for post-conviction
relief specifically asserted the
following errors relating to Matheney’s
alleged lack of competency to stand
trial:

8(G) Matheney was denied his right to a
fair trial, to due course and due process
of law, and to be free from cruel and
unusual punishment when he was subjected
to a criminal trial despite being
incompetent to understand the nature of
the proceedings or to assist in defending
the charges against him.

****

9(c)(6) Trial and appellate counsel were
ineffective in their failure to notify
the court that Matheney was incompetent
at all stages of this litigation.
Matheney was incompetent to stand trial,
and was incompetent to proceed on direct
appeal.

****

9(G) Matheney was not competent to stand
trial. His inability to trust trial
counsel rendered him unable to provide
them with any meaningful assistance in
devising a defense to the charges against
him. Nor was Matheney able to form a
rational understanding of the proceedings
against him. Had Matheney’s competence
been pursued and properly litigated,
Matheney would have been found not
competent to defend the charges.

  Under Indiana law, a defendant is
competent to stand trial if "the court
finds that the defendant has the ability
to understand the proceedings and assist
in the preparation of the defendant’s
defense." Ind. Code sec. 35-36-3-1(b). In
support of the post-conviction argument
that Matheney was incompetent to stand
trial, defense counsel presented the
state magistrate judge with a combination
of depositions and affidavits, drawn
primarily from family members, former
defense attorneys, Dr. Morrison, and Dr.
Berkson, in an attempt to illustrate that
Matheney could not assist in preparing
his defense. Dr. Morrison’s deposition
testimony pointed out that she felt
Matheney was not competent to be tried:

He [Matheney] was not rational. He
continued through the time that I had
seen him to believe that this was a
conspiracy on the part of Michael Barnes
and Lisa Bianco, that he would not be in
the position if it had not been for them,
that those tapes were the only thing that
would exonerate him. I think I was asked
a question about a session where those
were the primary thoughts that continued
with him. He had no concept in my opinion
of what was going on as far as his role
in the trial was concerned. To him the
only thing that was important and the
only thing that this trial was going to
do was to prove that he had not
threatened Lisa Bianco because those
tapes could be available.

****

He was not capable of [rationally
consulting with trial counsel] because
the delusion that he maintained
interfered with any ability to look at
the reality of what he needed to go
through as far as the trial was
concerned, what the charges were.
Everything to him remained and remains a
conspiracy. (emphasis added).

  Contradicting Dr. Morrison’s opinion
were Matheney’s three trial attorneys,
who testified that Matheney did
understand the proceedings and was able
to assist in his own defense. When asked
if he felt that Matheney was competent to
stand trial, Philip Skodinski stated:

I think he was [competent]. I mean, some
of his ideas were [not] good ideas, but
that doesn’t necessarily mean he wasn’t
competent to use his own defense. He
wanted to interview people and use them
as witnesses which some weren’t very good
people to use as witnesses. But I am not
sure that’s the criteria to provide you
are not competent to assist in your own
defense. It depends on what you feel is
competent.

  Public Defender Charles Lahey concurred
with Skodinski, stating his belief that
Matheney was competent to be tried:
"Despite his obsessive conduct, I didn’t
find Alan that incapable of planning his
own defense. In fact, he was actively
planning it although it wasn’t right in
all regards." Lead defense counsel Scott
King similarly testified that Matheney
did not cooperate with counsel to the
full extent of his ability "partially
because he didn’t want to."/13

  After considering the relevant evidence
presented and the arguments of counsel,
the state court magistrate judge ruled
that Matheney was competent to proceed
with the post-conviction proceedings and
then denied his petition for post-
conviction relief, stating:
The repeated pro se criticisms of the
attorneys, the courts, and the rulings on
the admissibility of evidence, all are in
themselves sufficient to support the
conclusion that the petitioner had always
had a very clear understanding of the
nature of the proceedings even if he did
not agree with others’ opinions of what
should be presented in those proceedings.

(Emphasis added).

G. State Court Post-Conviction Appeal

  On April 1, 1996, Public Defender
Merryman appealed the state trial court’s
denial of Matheney’s petition for post-
conviction relief. His 125-page appellate
brief cited approximately 185 legal
authorities in support of the following
challenges to Matheney’s conviction and
sentence of death: (1) that the post-
conviction state court erred in failing
to reach the merits of his ineffective
assistance of counsel claim after
deciding that the pleadings were
insufficient; (2) that Matheney was
denied a full and fair hearing because
the state court magistrate judge was
biased and forced him to proceed in a
post-conviction hearing when he could not
rationally consult with counsel; (3) that
trial counsel provided Matheney
ineffective assistance in failing to
request a hearing on his competency to
stand trial; (4) that the prosecutor
committed misconduct in cross-examining a
witness at trial with inadmissible
statements made by Matheney;/14 (5)
that the jury instructions given at trial
were fundamentally erroneous because they
should have instructed the jury that
Matheney was presumed to be insane under
Indiana law; and (6) that the Indiana
death penalty statute is
unconstitutional.

  The Indiana Supreme Court denied
Matheney any relief on appeal./15 See
Matheney v. State, 688 N.E.2d 883 (Ind.
1997), cert. denied, 525 U.S. 1148
(1999). As the third argument contained
in Matheney’s Indiana state post-
conviction brief (that Skodinski, Lahey,
and King were ineffective in failing to
request a hearing on his competency to
stand trial) is now before this court, we
recount the Indiana Supreme Court’s
judgment. The Indiana Supreme Court held
that defense counsel were not
ineffective:

Given the psychiatrists’ determinations
before trial, trial counsels’ own
opinions of Matheney’s competency, and
Dr. Berkson’s earlier determination of
Matheney’s competency, trial counsel were
not ineffective for failing to follow up
their request for a determination of
competency with a formal motion for a
hearing on Matheney’s competency.

Id. at 899.

II.    ISSUES

  As stated previously, the federal
district court denied Matheney’s petition
for a writ of habeas corpus, but granted
him a certificate of appealability on two
issues: (1) whether the state trial court
should have found Matheney incompetent to
stand trial or, in the alternative,
should have granted an evidentiary
hearing on the petitioner’s competency to
stand trial due to the problem
surrounding Matheney’s initial request
for such a hearing; and (2) whether
Matheney was denied effective assistance
of counsel at the penalty and the
sentencing phases of his trial. We also
consider Matheney’s related argument that
(3) he was denied effective assistance of
counsel because his trial counsel failed
to pursue his potential incompetency to
stand trial, thereby granting, in part,
his motion to expand the certificate of
appealability. See Porter v. Gramley, 112
F.3d 1308, 1312 (7th Cir. 1997).

III.    DISCUSSION

A. Standard for Determining Entitlement to
Evidentiary Hearing

  Matheney argues that the federal
district court should not have denied him
a writ of habeas corpus without at least
holding an evidentiary hearing on his
competency claims. Under 28 U.S.C. sec.
2254(e)(2), added by the Antiterrorism
and Effective Death Penalty Act (AEDPA),
the failure to develop a factual record
in the Indiana courts adequate to
adjudicate his competency claims
potentially bars Matheney from having
such a hearing:

If the applicant has failed to develop
the factual basis of a claim in State
court proceedings, the court shall not
hold an evidentiary hearing on the claim
unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable; or

(ii) a factual predicate that could not
have been previously discovered through
the exercise of due diligence; and

(B) the facts underlying the claim would
be sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.

  However, we have previously held that if
the "fail[ure] to develop the factual
basis of a claim in State court
proceedings" can not be attributed to
something the petitioner "did or
omitted," Section 2254(e)(2) does not
apply and it is then necessary to
evaluate the request for an evidentiary
hearing under pre-AEDPA standards. Burris
v. Parke, 116 F.3d 256, 258-59 (7th Cir.
1997). We cannot say that Matheney,
(rather than his counsel) "failed" to
establish a record sufficient to analyze
his claims on appeal as the record
clearly establishes that the majority of
Matheney’s attempts to file pleadings
with the state courts were refused and
not considered. More importantly, justice
dictates that a hearing on whether
counsel was constitutionally deficient in
failing to establish Petitioner’s
competency to stand trial cannot be
barred by counsel’s failure to secure a
hearing and develop a record--the very
product of the alleged ineffectiveness.
See also Jones v. United States, 167 F.3d
1142, 1145 (7th Cir. 1999). We thus
consider whether Matheney was entitled to
receive an evidentiary hearing from the
federal district court.

  Under pre-AEDPA standards, a federal
evidentiary hearing is required if (1) a
habeas petitioner alleges facts which, if
proved, would entitle him to relief and
(2) the state courts--for reasons beyond
the control of the petitioner--never
considered the claim in a full and fair
hearing. Porter, 112 F.3d at 1317. The
federal district court concluded that
Matheney had not received a full and fair
evidentiary hearing on his competency to
stand trial from the Indiana state
courts, Matheney v. Anderson, 60
F.Supp.2d 846, 860 (N.D. Ind. 1999), and
we agree. In this respect we note that
the Indiana Supreme Court did not discuss
Matheney’s due process and sua sponte
competency to stand trial claims when it
denied his petition for post-conviction
relief. Matheney v. State, 688 N.E.2d 883
(Ind. 1997). Therefore, if Matheney has
alleged facts in his petition that, if
proved, entitle him to relief, he is
entitled to an evidentiary hearing.
Townsend v. Sain, 372 U.S. 293, 312-13
(1963) overruled on other grounds, Keeney
v. Tamayo-Reyes, 504 U.S. 1 (1992).

B. Matheney Claims Trial Counsel Provided
Ineffective Assistance By Failing To
Pursue The Initial Request For A
Competency Hearing

  Under the section of the Indiana
Criminal Code at issue, an Indiana trial
court is required to hold a competency
hearing before submitting the case to the
jury if, at any time, it has "reasonable
grounds for believing that the defendant
lacks the ability to understand the
proceedings and assist in the preparation
of his defense." Ind. Code sec. 35-36-3-
1(a). Matheney argues that he received
ineffective assistance of counsel because
his defense team did not pursue his
request for a hearing on his competency
to stand trial prior to the commencement
of trial. To establish a claim for
ineffective assistance of counsel, a
petitioner must establish that: (1) his
attorney’s performance fell below an
objective standard of reasonableness; and
(2) the attorney’s deficient performance
actually prejudiced the petitioner.
Strickland v. Washington, 466 U.S. 668,
687 (1984). Courts deferentially review
defense counsel’s performance under the
first prong, presuming reasonable
judgment unless the factual record rebuts
such a presumption. Strickland, 466 U.S.
at 689. With regard to the second prong,
the prejudice element, "[t]he 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."
Id.
  From the record before us, we cannot
authoritatively state that defense
counsel performed reasonably under
Strickland’s first prong when, for
reasons unexplained, they allowed
Matheney to proceed to trial without
first obtaining the hearing on his
competency to stand trial that they had
previously filed with the court. The
record is unclear, at best, as to why
defense counsel, after filing a petition
requesting that the trial court order
independent psychiatrists to perform both
a competency evaluation and a sanity
examination, failed to follow through
with the competency request when it
became apparent that the trial court’s
order asked Drs. Batacan and Berkson for
opinions solely related to the question
of Matheney’s sanity at the time of his
offense. An adequate record is imperative
to properly evaluate ineffective
assistance claims. United States v.
Draves, 103 F.3d 1328, 1335 (7th Cir.
1997). An evidentiary hearing must
therefore be held to determine whether
trial counsel performed reasonably with
respect to the issue of Matheney’s
competency to stand trial.

  As to the second prong of Strickland,
Matheney argues that there is a
reasonable probability he would have been
found incompetent to stand trial and
would not have been convicted if he had
been allowed to proceed with a hearing on
his competency to stand trial. A
defendant who is tried and convicted of a
crime while legally incompetent has been
denied his due process right to a fair
trial. Drope v. Missouri, 420 U.S. 162,
172 (1975); Pate v. Robinson, 383 U.S.
375, 378 (1966). The Supreme Court has
held that if a state fails to observe its
statutorily prescribed procedures aimed
at testing whether a defendant is
competent to stand trial, then that
defendant’s right to procedural due
process has been violated. Drope, 420
U.S. at 172. Certainly, a question has
been raised as to Matheney’s mental
capacity to stand trial by Dr. Morrison’s
deposition testimony, which reads in
pertinent part:

He [Matheney] was not rational. He
continued through the time that I had
seen him to believe that this was a
conspiracy on the part of Michael Barnes
and Lisa Bianco, that he would not be in
the position if it had not been for them,
that those tapes were the only thing that
would exonerate him. I think I was asked
a question about a session where those
were the primary thoughts that continued
with him. He had no concept in my opinion
of what was going on as far as his role
in the trial was concerned. To him the
only thing that was important and the
only thing that this trial was going to
do was to prove that he had not
threatened Lisa Bianco because those
tapes could be available.

****

He was not capable of [rationally
consulting with trial counsel] because
the delusion that he maintained
interfered with any ability to look at
the reality of what he needed to go
through as far as the trial was
concerned, what the charges were.
Everything to him remained and remains a
conspiracy. (emphasis added).

  Based upon the legitimate questions
raised in the record relating to
Matheney’s competency to stand trial, we
are of the opinion that Matheney was
entitled to and should have received an
evidentiary hearing on his petition. We
thus remand Alan Matheney’s case to the
district court to hold an evidentiary
hearing on three issues raised in his
appellate brief surrounding his
competency to stand trial: (1) whether
Matheney was competent to stand trial in
1990; (2) whether Matheney’s counsel were
ineffective when they failed to pursue
the initial request for a
competencyhearing; and (3) whether the
state trial court was obligated to hold a
competency hearing sua sponte. See Lewis
v. Lane, 822 F.2d 703 (7th Cir. 1987).

  The district court will have access to
the medical records from three doctors
(Berkson, Batacan, and Morrison) who
examined Matheney in 1989, including, but
not limited to, psychiatric evaluations
both before and after the commission of
his crimes. In addition, the district
court has the testimony from Matheney’s
criminal defense counsel and civil
counsel that is already in the record.
Finally, as the district court enjoys
broad discretion in fashioning the scope
of the hearing, Wright v. Gramley, 125
F.3d 1038, 1044 (7th Cir. 1997), it may
well desire to consider any additional
information that would assist the
court./16

C. Petitioner Claims Trial Counsel
Provided Ineffective Assistance At The
Sentencing Phase Of His Trial By Failing
to Present Additional Evidence That
Petitioner’s Alleged Mental Illness Was A
Mitigating Factor.

  Matheney also claims that during the
sentencing phase of his trial, his
attorneys failed to present evidence that
he suffered from a "mental disease or
defect" that prevented him from
controlling his conduct at the time of
the murder, and that this failure denied
Matheney effective assistance of counsel.
As with any allegation of ineffective
assistance of counsel, we review
Matheney’s claim under the two-prong test
of Strickland. As recently determined by
the United States Supreme Court, we can
only grant Matheney a writ of habeas
corpus on this issue if we find that the
Indiana Supreme Court’s rejection of his
claim was either "contrary to . . . or
involved an unreasonable application of"
the performance and prejudice rules set
out in Strickland. Williams v. Taylor,
120 S.Ct. 1495, 1523 (2000). In other
words, "we must determine that the state-
court decision was both incorrect and
unreasonable before we can issue a writ
of habeas corpus." Washington v. Smith,
219 F.3d 620, 628 (7th Cir. 2000). Under
Strickland, a petitioner must establish
that his counsel’s performance was
deficient and that the petitioner was
prejudiced by counsel’s substandard
performance. The petitioner "bears a
heavy burden when seeking to establish an
ineffective assistance of counsel claim."
Drake v. Clark, 14 F.3d 351, 355 (7th
Cir. 1994).

  Matheney concedes that during the
sentencing phase of the trial, his
attorneys argued to the jury that he was
suffering from a mental disease or defect
that rendered him unable to conform his
conduct to the requirements of the law.
His attorneys also urged the jury to
consider this to be a factor weighing
against recommending imposition of the
death penalty. However, Matheney argues
that he was prejudiced when his counsel
failed to present "readily available
evidence that, at the time of the crime,
[Matheney] was ’grossly psychotic’" and
unable to conform his conduct to the
requirements of the law. The "readily
available evidence" Matheney points to is
testimony from Dr. Helen Morrison
regarding the specific elements of the
"inability to conform" death penalty
mitigator. Matheney’s ineffective
assistance of counsel at sentencing claim
argues that if such testimony from Dr.
Morrison had been presented, there is a
reasonable probability that the jury and
judge would have reached a different
conclusion as to whether imposition of
the death penalty was appropriate. We
disagree, and hold that the trial judge’s
stated rationale for choosing to give
little or no weight to the "inability to
conform" death penalty mitigator
precludes a reasonable probability that
additional testimony from Dr. Morrison
could have had an effect on the judge’s
decision to impose the death penalty.
Matheney was therefore not prejudiced by
any arguable deficiency by counsel in
this regard, and we affirm the district
court’s decision on this issue.

  As discussed previously, to establish a
claim for ineffective assistance of
counsel, Matheney must demonstrate that:
(1) his attorneys’ performance at
sentencing fell below an objective
standard of reasonableness; and (2) his
attorneys’ deficient performance actually
prejudiced him. Strickland, 466 U.S. at
687. With respect to the second, or
"prejudice" prong of the Strickland test,
the defendant must demonstrate that there
is a reasonable probability that, but for
counsel’s error, the result of the
proceeding would have been different.
Strickland, 466 U.S. at 694. A reasonable
probability is "a probability sufficient
to undermine confidence in the outcome."
Id.

  The second prong of the Strickland test
has been applied to alleged errors of
counsel committed during the sentencing
phase of a capital case. As this court
has previously held:

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.’"

Foster v. Schomig, 223 F.3d 626, 636-37
(7th Cir. 2000) (emphasis added); see
also Hall v. Washington, 106 F.3d 742,
751-52 (7th Cir. 1997); Strickland, 466
U.S. at 695.

  We need not determine the first, or
"performance," prong of the Strickland
test, if we find that counsel’s alleged
deficiency did not prejudice the
defendant. Strickland, 466 U.S. at 697;
Milone v. Camp, 22 F.3d 693, 701 (7th
Cir. 1994). We hold that Matheney cannot
meet his burden of establishing prejudice
because the trial judge’s stated
rationale for imposing the death sentence
precludes a reasonable probability that
additional testimony from Dr. Morrison
would have affected the court’s
sentencing decision. Thus it is not
necessary for us to decide the
"performance" prong of the Strickland
test and render an opinion on the
objective reasonableness of counsel’s
decision not to call Dr. Morrison at the
sentencing phase of the trial.

  It is important to understand that under
Indiana law, "the sentencer," as that
phrase was used in Strickland and Hall,
refers exclusively to the trial judge,
and not the jury. While Indiana law
provides for a jury recommendation on the
appropriateness of the death penalty, the
trial judge has the exclusive power to
impose sentence, and is under no
obligation to heed, or give substantial
weight to, the jury’s recommendation.
Ind. Code sec. 35-50-2-9(e).

  Indiana law is clear on this point. Even
if a jury has recommended imposition of
the death penalty, the trial judge is
still required to independently weigh the
evidence and reach a "separate
conclusion":

[A]fter any jury recommendation pursuant
to the death penalty statute, the trial
court as trier of fact must independently
determine the existence of aggravators
and mitigators, weigh them, consider the
recommendation of the jury, and come to a
separate conclusion as to whether or not
to impose the death penalty.

Kennedy v. State, 578 N.E.2d 633, 637
(Ind. 1991), cert. denied, 503 U.S. 921
(emphasis added).

In Indiana, however, unlike Mississippi,
the jury does not have the ultimate power
of decision. The jury makes a
recommendation to the judge about whether
or not to impose the death penalty, but
the judge is not required to follow the
recommendation--it is his decision to
make, not the jury’s. . . . In Indiana,
the sentencing judge must give due
consideration to the jury’s
recommendation, but he need not give it
any particular weight.

Fleenor v. Anderson, 171 F.3d 1096, 1098
(7th Cir. 1999) (emphasis added).
  Thus, to prevail on his ineffective
assistance at sentencing claim, Matheney
is required to demonstrate that but for
counsel’s decision not to call Dr.
Morrison to the stand, there is a
reasonable probability that the trial
judge (not the jury) would have found
that the balance of aggravating and
mitigating factors did not warrant
imposition of the death penalty. As we
shall discuss below, the trial judge’s
articulated reasons for imposing the
death penalty lead us to the conclusion
that there is no reasonable probability
that any additional testimony from Dr.
Morrison could have affected Matheney’s
ultimate sentence.


   1. The Legal Standards

  The elements of the Indiana insanity
defense are slightly different than those
of the "inability to conform" sentencing
mitigator. However, for purposes of this
case it is important to focus on the
similarities between the two standards:
Both require proof that the defendant
suffered from a "mental disease or
defect." Indiana’s insanity defense
statute provides as follows:

A person is not responsible for having
engaged in prohibited conduct if, as a
result of mental disease or defect, he
was unable to appreciate the wrongfulness
of the conduct at the time of the
offense.

Ind. Code sec. 35-41-3-6(a).

  As noted previously, Indiana’s
"inability to conform" death penalty
mitigator states that the court may
consider the following as mitigation
against imposition of the death penalty:

The defendant’s capacity to appreciate
the criminality of the defendant’s
conduct or to conform that conduct to the
requirements of the law was substantially
impaired as a result of mental disease or
defect or of intoxication.

Ind. Code sec. 35-50-2-9(c)(6).

  Both statutes require a defendant to
make the threshold showing of the
existence of a mental disease or defect,
although the required degree of
volitional impairment resulting from the
disease or defect differs under the two
standards. Obviously, if a defendant is
unable to establish that he suffered from
a mental disease or defect at the time of
the crime, he cannot establish either an
insanity defense or the death penalty
mitigator. A finding that a defendant did
not suffer from a mental disease or
defect precludes the application of both,
or either, of these statutes.


  2. The Opinions of the Doctors

  During the guilt phase of the trial, the
two independent expert witnesses
disagreed with Dr. Morrison on the issue
of whether Matheney suffered from a
"mental disease or defect" at the time of
the murder. Dr. Morrison opined that at
the time Matheney murdered his ex-wife,
he was suffering from a personality
disorder that was consistent with the
existence of a "mental disease."/17

  Dr. Morrison’s opinion was diametrically
opposed to that of the two independent
court-appointed psychiatrists who also
testified during the guilt phase of the
trial. Both Drs. Batacan and Berkson--
appointed to serve as neutral experts for
the court--opined that Matheney was not
suffering from a mental disease or defect
at the time of the murder. Both doctors
gave unequivocal testimony on this issue.
Dr. Batacan testified as follows:

  Q: Okay, let me ask you the next question
in sequence, then. Did you, as a result
of questioning the defendant, Alan L.
Matheney, observe any symptoms of mental
disease or defect?

  A: No, your Honor, I did not.

  Q: Are you able to, as a normal course,
when a person does have symptoms of
mental disease or defect, are you able to
detect that by the method which you’ve
outlined to us today?

  A: Yes, your honor.

  This opinion was reiterated in Dr.
Batacan’s written report, which stated
that Matheney was not suffering from any
"mental disease or defect, either at the
time of the interviews or during the
murder of his ex-wife." (emphasis added).
As stated in his report, Dr. Batacan’s
opinion stems from his interviews with
Matheney:

He has an intact memory for both remote
and recent events. He is fully oriented
to time, place, person and specific
situations. He denies experiencing
unrealistic ideas and feelings. He has
not experienced any distorted
interpretation and perception of reality,
such as hallucinations and delusions. His
feelings of being aggrieved and beliefs
of being unjustly [treated] are very real
to him. His affect is appropriate. He
does not show any signs and symptoms of
mental disease or mental defect now nor
during the event in question. (emphasis
added).

  Dr. Batacan’s conclusion that Matheney
never suffered from a mental disease or
defect was shared by Dr. Berkson. The
second independent expert testified as
follows:

  Q: Are you able to discern symptoms of
mental disease or defect by questioning a
subject like that?

  A: Yes, sir.

  Q: Did you, as a result of your
examination, discover any symptoms of
mental disease or defect in Mr. Matheney?

  A: No, sir, I did not.

  In his written report to the court, Dr.
Berkson confirmed his conclusion that
"Alan Matheney did not suffer from a
mental disease or defect . . . at the
time of the offense."/18

  3. The Trial Judge’s Sentencing Decision

  Bearing in mind the applicable legal
standards and the content of the three
psychiatrists’ trial testimony regarding
the existence of a mental disease or
defect, we turn now to the trial judge’s
sentencing decision. For purposes of
Matheney’s ineffective assistance at
sentencing claim, a crucial consideration
is the rationale given by the judge for
not giving weight to the "failure to
conform" mitigator. Significantly, the
record does not reflect a finding by the
judge that Matheney had failed to submit
convincing evidence that he was unable to
conform his conduct to the requirements
of the law (the omitted sentencing
testimony on which the dissent relies).
Indeed, it was not necessary for the
judge to reach that issue once he chose
to give no credence to Dr. Morrison’s
threshold premise that Matheney suffered
from a mental disease. The judge’s
sentencing decision correctly makes no
distinction between a diagnosis of
"mental disease or defect" offered in
support of the insanity defense and one
offered in support of the death penalty
mitigator, as the element is a
prerequisite to the application of both
statutes. The judge’s sentencing decision
implicitly recognizes that it makes no
difference when Dr. Morrison’s opinion on
the existence of a mental disease was
offered--during the guilt phase of the
trial, the sentencing phase, or both. The
rejection of this opinion for one purpose
is a rejection of the opinion for both
purposes.

  At sentencing, the court identified and
discussed each of the mitigating factors
it considered. With respect to the
"failure to conform" mitigator, the court
stated the following on the record:

6. Standard: The defendant’s capacity to
appreciate the criminality of the
defendant’s conduct or to conform the
conduct to the requirements of the law
was substantially impaired as a result of
mental disease or did he [sic] defect or
of intoxication. Facts: This mitigating
factor is the old insanity defense since
repealed. It’s definition contains the
cognitional function as well as the
volitional function of the mind. Since it
has not been repealed, it will be
considered as it presently exists. The
defense expert, Dr. Morrison, offered a
diseased mind diagnosis rejected by the
jury. Mr. Matheney has proven to be aware
of the criminal justice system including
methods to manipulate it. The Court
concurs with Dr. Batacan and Dr. Berkson
that the defendant has been feigning
symptoms of mental illness. This defense
was rejected by the jury. However, that
does not dispose of the issue. It may be
considered a mitigating factor though not
rising to the level of a defense. It
should also be noted here that the
verdict form in Phase I of guilty but
mentally ill was not selected by the
jury. The jury, as well as the Court, has
concluded that mental disease or defect
was nonexistent in this case. Neither was
the defendant acting under an
irresistible impulse. He had been
planning this murder for some time. He
had solicited others in prison to kill
Mrs. Bianco. These plans, of course,
proved unsuccessful. There was no
evidence that he had been drinking or on
drugs.

(emphasis added).

  As the preceding quote from the
transcript makes clear, the trial judge
thoroughly considered all the evidence
and the opinions offered by the medical
experts and chose to believe, or give
greater weight to, the opinions of Drs.
Batacan and Berkson that Matheney was not
suffering from any mental disease or
defect at the time of his fatal assault
on his ex-wife. It is not our role to
second-guess a credibility determination
made by an experienced trial judge for
purposes of sentencing. United States v.
Tolson, 988 F.2d 1494, 1497 (7th Cir.
1993). The judge’s decision to reject Dr.
Morrison’s diagnosis is critically
important because the existence of a
mental disease or defect is the element
common to both the insanity defense and
the "inability to conform" death penalty
mitigator. A failure to convince the jury
or judge that a defendant is suffering
from a mental disease or defect precludes
application of both the insanity defense
and the death penalty mitigator, and this
is what happened in Matheney’s case. Had
Dr. Morrison been recalled to the stand
during the penalty phase of the trial,
her opinion as to the existence of a
mental disease or defect would obviously
have been the same opinion she gave
during the guilt phase of the trial. In
light of this fact, and the judge’s
clearly enunciated reasoning for
rejecting the mitigating factor, we are
convinced that Matheney has failed to
demonstrate a reasonable probability that
additional testimony from Dr. Morrison
would have led the trial judge to impose
a sentence other than death.

  This would be quite a different case had
the trial judge based his sentencing
decision on a conclusion that Matheney
was suffering from a mental disease, but
that Matheney had failed to produce
evidence that the disease rendered him
incapable of conforming his conduct to
the requirements of the law. If that were
the case, a credible argument could be
advanced that additional testimony from
Dr. Morrison might have affected the
court’s sentencing decision. As the
record stands, the judge’s rejection of
the existence of a mental disease or
defect is determinative of this issue on
appeal. The district court’s decision
must therefore be affirmed in this
respect.


  4. Aggravating Sentencing Factors

  Alternatively, even if Dr. Morrison’s
testimony had been presented at
sentencing, and even if the sentencing
judge had for some reason given credence
to her opinions on the second go-around,
this alone does not establish a
reasonable probability that Matheney
would not have received the death
penalty. Under Indiana law, the presence
of one (or more than one) mitigating
factor does not preclude imposition of
the death penalty. Rather, the statutory
aggravating factors are weighed against
the mitigating factors, and the resulting
balance determines the appropriateness of
the death penalty. Kennedy, 578 N.E.2d at
637; see also Foster, 223 F.3d at 637.
The majority disagrees with the dissent’s
conclusion that evidence of the
aggravating factors was "not strong." We
are convinced that the existence of
aggravating factors was more than
sufficient to uphold imposition of the
death penalty even in the face of
testimony that Dr. Morrison might have
presented in the sentencing phase of the
trial.


      a. Lying-in-Wait Aggravator

  The dissent characterizes the evidence
supporting the "lying-in-wait" aggravator
as "weak at best," but this view is not
supported by the record. Indeed, the
dissent offers no explanation for its
position that the evidence was "weak,"
other than to cite a dissenting opinion
from one justice on the Indiana Supreme
Court out of the five who heard the case.
The majority interprets the fact that a
majority of the Indiana Supreme Court
found the evidence of aggravating factors
to be sufficient to uphold the sentence
to be testament to the strength of that
evidence rather than its "weakness," and
we are at a loss to understand how the
dissent can view it in any other fashion.
The totality of the evidence paints
Matheney as a cold, calculating killer--
one clear-headed enough to scheme and
plan the fatal act. The record
demonstrates that: (1) Matheney parked
his vehicle in a parking lot near an
alley behind Bianco’s house, a full city
block away, despite the fact that there
was available parking in close proximity
to the home; and (2) Matheney approached
the home not via the front door or the
city street, but rather by approaching
from the rear, walking down an alley and
through a backyard secluded by a dense
growth of bushes and trees, a large
wooden gate, and a garage. These facts
were not contested by Matheney at trial,
and they obviously lend much credence to
the prosecution’s theory that Matheney’s
objective was to surprise Bianco and
violently assault her while she remained
in an off-guard and vulnerable position.
The Indiana Supreme Court summarized its
opinion on this issue as follows:

It would be reasonable for the trier of
fact to conclude that appellant had used
a circuitous approach toward Bianco’s
house in order to conceal himself from
her and that testimony regarding the
amount of time involved tended to prove
that appellant waited and watched until
he could take Bianco by surprise. The
evidence regarding his use of a deadly
weapon was indicative of his intent to
kill. The evidence was sufficient to
support the finding that this aggravating
factor was proven beyond a reasonable
doubt.

Matheney, 583 N.E.2d at 1208-09.

  The prosecution convincingly established
a time-line showing that: (1) Matheney
went to Snider’s home to obtain a weapon
and left Snider’s home with the shotgun
at approximately 2 p.m.; and, (2) he did
not break into Bianco’s home until at
least an hour later, despite the relative
proximity of the two residences. From
this time-line, and the evidence of
Matheney’s roundabout approach and entry
into Bianco’s home, it is reasonable to
conclude (as the trial court did) that
Matheney was "lying in wait" in Bianco’s
backyard in an effort to take her by
surprise. See Matheney, 583 N.E.2d at
1204-05.

  In fact, as recognized in the dissent,
throughout the long appellate history of
this case, only Justice DeBruler alone of
the five member Indiana Supreme Court was
of the opinion that the evidence and
time-line did not adequately support a
finding that the "lying-in-wait"
aggravator was proven beyond a reasonable
doubt. Once again, the majority
interprets the fact that only a single
justice questioned the trial judge’s
decision on the lying-in-wait aggravator
as a testament to the strength of that
evidence.


      b. Felony Murder Aggravator

  The dissent takes the position that the
intentional killing while committing a
burglary aggravator should not have been
be given much weight in the trial court’s
sentencing decision. In effect, the
dissent is re-weighing the evidence and
goes on to characterize the evidence
supporting this aggravator as being "not
as compelling in this case as in others."
Once again, the dissent relies
exclusively on the dissenting opinion of
a single Justice of the five-member
Indiana Supreme Court as support for the
position that the felony murder
aggravator is not "compelling" when the
burglary is accomplished for purposes of
committing the murder, as opposed to a
separate felony. Obviously, the majority
of the Indiana Supreme Court did not
agree with this position, nor do we. We
agree with the Indiana Supreme Court that
the felony murder aggravator applies to
the very situation present in this case--
forcible entry of a residence with the
intent to commit murder. Matheney, 583
N.E.2d at 1207.

  The testimony from witnesses, including
Matheney’s own young daughter,
demonstrated that Matheney burst through
the back door of Bianco’s home and
confronted his ex-wife in the presence of
their daughter, while armed with the
shotgun that he later used to bludgeon
Bianco to death with such force that the
weapon was literally smashed to pieces.
See Matheney, 583 N.E.2d at 1204-05.
Matheney’s violent assault and ultimate
murder of Lisa Bianco was horrific in and
of itself; the fact that it was
accomplished by a forcible surprise
attack in the home makes it all the more
reprehensible, given the recognized
importance of the "home as a sanctuary."
See Moore v. Marketplace Restaurant,
Inc., 754 F.2d 1336, 1343 (7th Cir.
1985); Welsh v. Wisconsin, 466 U.S. 740
(1984).

      c.   Balancing the Sentencing Factors

  Under Indiana law, a sentencing judge is
not permitted to consider evidence
supporting a mitigating factor in
isolation. Rather, the judge is obligated
to balance the strength of such evidence
against the facts supporting the
aggravating factors. In light of the
facts underscoring the brutal nature of
this crime and its occurrence inside the
supposed sanctuary of Bianco’s home, we
are not convinced that additional
testimony from Dr. Morrison at
sentencing, if it had been presented and
believed, would have necessarily tipped
the balance against imposition of the
death penalty. As we noted in Foster:

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.

Foster, 223 F.3d at 637.

  We must remember that the judge heard
substantial evidence demonstrating
Matheney’s extensive planning and
deliberate execution of the fatal
assault. The judge also heard testimony
from the arresting officer that Matheney
was calm, relaxed, and displayed no
nervousness or distress when he turned
himself in approximately two hours after
committing the murder. Rather, Matheney
calmly informed the officer that he
assumed his ex-wife had died as a result
of his assault. The officer testified
that between the time of the murder and
the time he turned himself in, Matheney’s
primary concern was with purchasing
cigarettes to take with him to jail.
These facts, demonstrating the
deliberate, well-planned and fully pre-
meditated nature of the murder, were
uncontested by Matheney at trial. The
judge also heard evidence concerning the
extreme violence of the murder; how the
shotgun was smashed into pieces by the
force of Matheney’s blows to Bianco’s
body. In light of the aggravating
circumstances set forth in this record,
we certainly cannot agree that there is a
reasonable probability that the presence
of a single mitigating factor would
necessarily have staved off imposition of
the death penalty. For this additional
reason, we are convinced that Matheney
was not prejudiced, even if one accepts
the premise that his counsel did not
perform reasonably at sentencing.

IV.   CONCLUSION

  We affirm the district court’s decision
that the petitioner’s ineffective
assistance of counsel claim with respect
to the sentencing phase of his trial is
without merit. We also hold that the
petitioner is entitled to an evidentiary
hearing in the district court in order
that he might be given the opportunity to
offer evidence to develop the factual
basis of his claim surrounding his
competency to stand trial. This case is
REMANDED to the district court with
INSTRUCTIONS to proceed with an evidentiary
hearing consistent with this opinion.

FOOTNOTES

/1 Matheney and Bianco were divorced on June 19,
1985, and Bianco was awarded custody of the
couple’s two daughters. Matheney initially was
granted supervised visitation. On the day of his
first unsupervised visitation, July 3, 1985,
Matheney seized his children and left Indiana for
other parts of the United States. He was
apprehended on August 23, 1985, in North Carolina
and charged with confinement. He was convicted
and sentenced on the confinement charge and of a
battery charge stemming from an earlier physical
attack on his ex-wife.

/2 Bianco’s neighbor Wilbur Stockdale testified that
he opened the front door of his home, yelled at
Matheney, and then chased him until Matheney
reached his car and drove away.

/3 The "Order for Examination Concerning Sanity"
issued by the court was a "form" order containing
boilerplate language regarding the appointment of
doctors for an investigation into the sanity of
a criminal defendant at the time of the commis-
sion of the offense.

/4 Judge Swartz instructed the doctors in conformity
with Indiana’s legal test for insanity, codified
at Ind. Code sec. 35-41-3-6(a), which states:

A person is not responsible for having engaged in
prohibited conduct if, as a result of mental
disease or defect, he was unable to appreciate
the wrongfulness of the conduct at the time of
the offense.

The definition of "mental disease or defect"
contained in her instructions quotes the defini-
tion adopted by the legislature. See Ind. Code
sec. 35-41-3-6(b).

/5 In addition to being undated, the report is
devoid of any file-stamp date as to when the
report was filed with the court. Therefore, it is
impossible to specifically determine when the
report was prepared, other than to note it was
after June 21, 1989 (the date of Dr. Batacan’s
second interview with Matheney) and prior to May
1990 (when Dr. Batacan testified at Matheney’s
trial).

/6 Dr. Berkson’s report states that he interviewed
Matheney on two different occasions, once on
April 14, 1989, and on a previous date, but the
report fails to disclose the date of the first
interview.

/7 Not surprisingly, there is nothing in the record
that supports Matheney’s claim that Barnes’
prosecution of him was prompted by any improper
motive.

/8 Skodinski and Lahey argued that, as public de-
fenders for St. Joseph County, the change of
venue outside St. Joseph County imposed severe
transportation and caseload difficulties upon
them.
/9 Dr. Morrison testified that she maintained a
practice in both Hammond, Indiana, and Chicago,
Illinois. She further testified that she had been
certified as an expert in more than 100 previous
trials and had testified for both the prosecution
and defense. Prior to testifying for Matheney,
she had testified "three or four times" in Indi-
ana, always for the prosecution.

/10 As noted, Indiana law requires that a defendant
asserting the insanity defense prove both: (1)
the existence of a mental disease or defect, and
(2) that as a result of the mental disease or
defect, he could not appreciate the wrongfulness
of his conduct at the time of the crime. See Ward
v. State, 438 N.E.2d 750, 753 (Ind. 1982).

/11 In 1992, Matheney was denied relief by the Indi-
ana Supreme Court on direct appeal. The court
held that: (1) Matheney was not entitled to have
the jury instructed on manslaughter grounds
because there was no evidence that Bianco had
"provoked" him into acting with the "sudden heat
of passion"; and (2) sufficient evidence support-
ed the trial court’s decision that the prosecu-
tion proved aggravating circumstances warranting
imposition of the death penalty. See Matheney v.
State, 583 N.E.2d 1202 (Ind. 1992), cert. denied,
504 U.S. 962 (1992).

/12 On the same day as the hearing on Matheney’s
petition for post-conviction relief, defense
counsel sought a stay of the post-conviction
proceedings on the ground that Matheney was
incompetent to proceed with the hearing. Inter-
estingly, Matheney resisted his attorneys’ tac-
tics by filing pro se motions offering to prove
his own competence to proceed with the post-
sentencing hearing.

/13 Further, on direct questioning from the state
magistrate judge at Matheney’s state post-convic-
tion proceedings, Matheney exhibited a level of
knowledge that led the state magistrate judge to
determine that Matheney was competent to proceed
with the post-conviction hearing:

Q. Mr. Matheney, do you know who I am?

****

A. Magistrate Page.

Q. And do you know what my function is here?

A. Today you are presiding over this post convic-
tion hearing. . . .

Q. What is a post conviction hearing?
A. The attack of the legalities of your convic-
tion, whether it was legal or illegal, to bring
up issues that you feel that a defendant has a
right to a new trial or sentence relief or
whatever.

****

Q. Your attorneys have filed a Petition for Post
Conviction Relief, in which numerous grounds are
alleged. Have you had an occasion to read this
petition?

A. I read it a couple of times, and I just paid
attention to the grounds that pertained to me.
There’s a lot of stuff in there, statutorily,
that they put in everybody’s death penalty; and
I didn’t pay too much attention to, because
they’ve already been ruled on over and over
again.

Q. And the doctor said that you felt or seemed to
indicate or give the impression that you felt
that these issues were frivolous, because the
only issue you feel is relevant is the one about
[the alleged conspiracy between your wife and the
prosecuting attorney at your trial] or this--

A. No. There’s a lot of issues in there that I
agree with. The only ones that I didn’t agree
with were the ones that they keep putting in
everybody’s issue, that the Supreme Court keeps
turning down.

****

Q. Well, the general challenges to the death
penalty itself?

A. Right, yes.

Q. You feel that those are a waste of time
because of the previous rulings of the Supreme
Court?

A. Yeah. When I discussed them, they said, well,
you never know when you’re going to get a new
Supreme Court; but a new Supreme Court don’t come
along often enough in this decade.

Q. Does that seem unreasonable for them to take
that position? Have you not seen cases where a
court will rule the same way over and over again;
and then all of a sudden, along comes the same
question and they say, well, now that we think
about it, we’ve changed our mind?

A. Yeah, I’ve seen cases like that. I just felt
that there could have been more issues investi-
gated and put in this than what was . . . . I
believe during this whole thing that they want to
investigate my childhood. Well, that has abso-
lutely nothing--what I repeatedly told them, over
and over again, is that what you should concen-
trate on is what had taken place, you know, the
death of Lisa Bianco, and what caused it; and we
should concentrate on investigating this particu-
lar, you know, period of time. Going back to my
childhood 30 or 40 years ago, to me, doesn’t seem
like it’s--you know, it’s a waste of time, a
waste of valuable time. I think time could be
better spent on investigating things about the
incident itself.

/14 At trial, prosecutors had cross-examined Mike
Scopelitis, an attorney who had represented
Matheney in his divorce from Bianco, with a
series of questions focusing on whether Matheney
had ever admitted to Scopelitis that he had
threatened Bianco. The prosecution based its
questions to Scopelitis on the content of tape-
recorded phone calls that had been excluded by
the trial judge as inflammatory.

/15 The Indiana Supreme Court held: (1) Matheney was
competent to stand trial; (2) he was not denied
a fair trial as a result of the trial court’s
refusal to allow defense counsel to call a prose-
cutor as a defense witness on the issue of
insanity; (3) that viewing the totality of the
circumstances, no constitutional error was com-
mitted in the sentencing procedures. Matheney v.
State, 688 N.E.2d 883 (Ind. 1997), cert. denied,
525 U.S. 1148 (1999).

/16 For example, the district court may decide that
additional psychiatric analysis will be helpful
to its decision. United States v. Franzen, 686
F.2d 1238, 1247 (7th Cir. 1982) (noting that
habeas petitioner’s "possible lack of fitness
appears to be of a permanent rather than transi-
tory nature; therefore further medical or psychi-
atric testing may be relevant.").

/17 The majority is perplexed by the dissent’s insis-
tence that Dr. Morrison was not properly prepared
by defense counsel to testify at trial. If, in
fact, Dr. Morrison’s potential testimony at
sentencing regarding Matheney’s mental condition
would have had the substantial impact that the
dissent attempts to ascribe to it, we fail to
understand how she could have been unprepared to
testify. Moreover, simply asserting that defense
counsel did not spend sufficient time with a
witness prior to trial is insufficient to main-
tain a claim for ineffective assistance of coun-
sel. United States v. Olson, 846 F.2d 1103, 1108
(7th Cir. 1988). As we noted in Olson, an experi-
enced attorney can accomplish far more in a
single conference with a witness than a neophyte
lawyer can get out of several. Id.

  In any event, whether or not defense counsel
properly prepared Dr. Morrison to testify at
sentencing is not relevant to our analysis be-
cause we find that her opinion, even if it had
been presented as the dissent characterizes it,
would not have altered the trial judge’s decision
to impose the death penalty. After Dr. Morrison
testified during the guilt phase of the trial,
the trial judge was fully aware of her opinion
that Matheney was suffering from a mental disease
or defect at the time of the murder. The judge
weighed that opinion against the contrary opin-
ions of Drs. Batacan and Berkson and chose to
give greater credence to the opinion of the
court-appointed psychiatrists. The judge’s sen-
tencing decision also carefully weighed and
considered all the testimony presented by law
enforcement personnel regarding the nature of the
crime and the entire criminal investigation.

/18 The dissent’s quotation from Dr. Berkson’s trial
testimony is taken out of context. Dr. Berkson
did not merely testify that Matheney did not
suffer from a mental disease that rendered him
incapable of distinguishing right from wrong. Dr.
Berkson testified that at the time the murder was
committed, Matheney did not suffer from any
mental disease or defect at all.



  ROVNER, Circuit Judge, concurring in part, dis-
senting in part. I join in the majority’s
thorough opinion regarding the issue of Mathe-
ney’s competence to stand trial. I write sepa-
rately only because I would reverse the district
court on the sentencing issue as well because
Matheney’s trial attorney failed to present
critical mitigating evidence at the sentencing
hearing.
  A defendant’s mental disease or defect is
relevant both to an insanity defense and to the
death penalty determination, but the standards
are different in those two contexts. The insanity
defense does not apply if a defendant is able to
appreciate the wrongfulness of his conduct, even
if the defendant is unable to conform his conduct
to the requirements of the law. Matheney v.
State, 688 N.E.2d 883, 898 (Ind. 1997), citing
Ind. Code sec. 35-41-3-6 (West 1986). In con-
trast, it is a mitigating factor at sentencing
that a defendant was unable to conform his con-
duct to the requirements of the law. Id., citing
Ind. Code sec. 35-50-2-9(c)(6) (West Supp. 1996).
Therefore, a jury’s rejection of the insanity
defense at trial does not preclude the applica-
tion of that mitigating factor at sentencing.
  Matheney’s counsel chose to argue that mitigat-
ing factor at the sentencing hearing, but failed
to produce the critical evidence supporting it.
Matheney’s counsel argued that, even if Matheney
was not able to prove insanity because he could
distinguish right from wrong, he nevertheless
could establish the presence of the mitigating
factor because he was unable to conform his
conduct to the requirements of the law. As the
majority recognizes, Matheney’s counsel did not
make a tactical decision to forego that mitigat-
ing factor in favor of others, but affirmatively
argued that factor. His counsel failed, however,
to introduce any psychiatric testimony establish-
ing that Matheney was unable to conform his
conduct to the requirements of the law. At a
hearing on Matheney’s petition for post-convic-
tion relief, Dr. Morrison testified that Matheney
understood that his conduct was wrongful, but
that his actions at the time of the murder were
defined by the delusions he experienced, render-
ing him incapable of conforming his behavior to
the requirements of the law. In other words, her
testimony would have been consistent with the
jury verdict rejecting the insanity defense, but
would have established the mitigating factor
based on his mental illness. Matheney’s counsel
failed to present that testimony--or any testimo-
ny--to support the argument that the mitigating
factor was met. That failure may be explained by
Dr. Morrison’s testimony that defense counsel
spent only one hour with her preparing her for
the deposition, and no time subsequent to that
preparing her to testify at trial. Defense coun-
sel never even described the standards for insan-
ity or the mitigating factors under Indiana law,
and never asked her at trial or sentencing the
critical questions of whether Matheney could
appreciate the wrongfulness of his conduct and
conform his conduct to the requirements of the
law. That lack of preparation by trial counsel is
telling given that Matheney’s defense was insani-
ty, Dr. Morrison was the key psychiatric witness,
and the strongest factor mitigating against the
death penalty was his mental illness.

  Because Matheney’s counsel failed to present Dr.
Morrison’s testimony at sentencing, and failed to
elicit that critical testimony at trial which
then could have been considered by the jury at
sentencing, the jury had no basis upon which to
accept the defense argument in mitigation. Where
the defense counsel argues a mitigating factor
but fails to present any evidence whatsoever to
establish that factor even though such evidence
is readily available, we cannot excuse that
conduct as a tactical decision. We cannot assume
that the jury’s rejection of the insanity defense
would have doomed a defense argument at sentenc-
ing based on mental illness, given that the
standards were different and Dr. Morrison’s
testimony would have been consistent with the
jury’s verdict. See, e.g., Eddmonds v. Peters, 93
F.3d 1307, 1325 (7th Cir. 1996) (Flaum, J., and
Rovner, J., concurring) ("A determination of
sanity [ ] cannot be a sufficient reason to
forego inquiry into psychological problems for
mitigation purposes.") citing Stephens v. Kemp,
846 F.2d 642, 653 (11th Cir. 1988), and Loyd v.
Whitley, 977 F.2d 149, 156-57 (5th Cir. 1992).

  The failure to present Dr. Morrison’s testimony
was prejudicial because it was by far the stron-
gest mitigation evidence Matheney possessed. Dr.
Morrison’s testimony would have provided a per-
spective on Matheney that integrated the evidence
of mental disease and defect provided at trial
but harmonized with the jury’s rejection of the
insanity defense. Absent that testimony, the jury
had no reason to distinguish the insanity defense
from the mitigating factor. Therefore, the testi-
mony by Dr. Morrison was pivotal to the strongest
mitigating factor available to Matheney. His
defense counsel chose to argue for that mitigat-
ing factor, but never presented the psychiatric
testimony that would provide the necessary foun-
dation for it.

  Moreover, although Drs. Batacan and Berkson did
not appear to agree with Dr. Morrison’s analysis,
defense counsel had many avenues available to
either discredit or reconcile their opinions. For
instance, Dr. Batacan testified that in order for
a condition to constitute a "mental disease or
defect" by the legal definition, it must include
hallucinations. In fact, he stated that even if
a person experienced delusions, depression, or
other symptoms, "in the absence of hallucination,
there is no mental disease." Tr. at 1539-40.
Because there was no evidence that Matheney
experienced hallucinations, Dr. Batacan concluded
that he did not possess a mental disease or
defect. Even Dr. Berkson agreed that Dr. Bata-
can’s interpretation of mental disease or defect
was wrong. Given Dr. Batacan’s fundamental, and
rather stunning, misunderstanding of the term
"mental disease or defect," his opinion was
incorrect as a matter of law, and thus entitled
to no consideration.

  Dr. Berkson’s testimony did not suffer from a
similar fundamental error, but it was not without
its limits. In both his written report and his
trial testimony, Dr. Berkson concluded that
Matheney "did not suffer from a mental disease or
defect that would render him incapable of distin-
guishing right from wrong." That precluded the
insanity defense, but was perfectly consistent
with Dr. Morrison’s opinion. In fact, at the
post-conviction deposition, Dr. Berkson stated
that his opinion was not inconsistent with Dr.
Morrison’s. Dr. Berkson further attested at that
deposition that Matheney suffered from a mental
disease--paranoid personality--which affected
Matheney’s behavior but not his ability to appre-
ciate the wrongfulness of the offense, and thus
did not rise to the level of legal insanity. Dr.
Berkson’s statements at the post-conviction
deposition make clear that if defense counsel had
more thoroughly explored his opinion, they could
have elicited testimony that would have been
helpful at sentencing and that would have been
consistent with Dr. Morrison’s opinion. In fact,
Dr. Berkson in his written report prior to trial
left open the possibility of altering his opinion
if provided additional evidence by defense coun-
sel. In that report and at the post-conviction
deposition, Dr. Berkson stated that he had called
Matheney’s attorneys seeking further information,
but had no contact with those attorneys after
that time and never received further information
from them. Therefore, Dr. Berkson’s opinion,
properly developed by defense counsel, would have
been consistent with Dr. Morrison’s opinion, and
would have significantly impacted the determina-
tion by the judge and the jury of whether
Matheney suffered from a mental disease or de-
fect. Accordingly, even in light of the opinions
of Drs. Batacan and Berkson, Dr. Morrison’s
opinion could have been strong evidence of the
mitigating factor.

  The existence of a mental disease or defect
that rendered him incapable of conforming his
conduct to the law would have been a significant
mitigating factor, and there is a reasonable
probability that it would have altered the jury’s
recommendation--particularly because the aggra-
vating factors were not strong here. The two
aggravating factors were that the offense was
committed (1) by lying in wait and (2) during the
course of a burglary. Although the majority
devotes much time to discussing the brutality of
the crime, a point I do not question and with
which I am in agreement, it is not one of the
aggravating factors that are available to the
jury, and therefore cannot be a part of this
analysis. We are limited to considering the two
identified aggravating factors.

  The lying-in-wait factor was based upon evidence
that he approached the home from the rear, and
that the timeline established by the prosecution
allowed for a conclusion that he waited behind
the house before entering. That evidence was weak
at best, and a dissenting justice of the Indiana
Supreme Court declared that there was no basis to
find that factor. Matheney v. State, 583 N.E.2d
1202, 1210 (Ind. 1992) (DeBruler, J. dissenting).
The burglary factor was premised on Matheney’s
actions in breaking through the door and entering
the home in search of his wife. Burglary requires
a forcible entry with the intent to commit a
felony, but there was no intent to commit a
separate felony here such as robbery or rape,
which would elevate the murder to another level
by adding an additional intended felony. Instead,
the intent for the burglary was the intent to
commit the murder, the same intent necessarily
found for the murder charge itself. Therefore,
the aggravating factor of the burglary is present
here, but is not as compelling in this case as in
others, because it did not encompass an intent to
commit a separate felony. See id. at 1210 (DeBru-
ler, J. dissenting) ("where the intent of the
burglary is the intent to kill, the weight of the
aggravator is greatly diminished, for the mind
has formed but a single felonious intent.") Thus,
the jury would have been required to balance the
evidence that in committing the murder he may
have waited in the yard for a short time and then
forcibly entered the home, against evidence that
his mental illness rendered him incapable of
conforming his conduct to the requirements of the
law. On those facts, I believe that there is a
reasonable probability--that is, one sufficient
to undermine confidence in the outcome--that but
for the failure to present that mitigating evi-
dence, the result would have been different. See
Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 1513-14 (2000). I would therefore conclude
that Matheney received ineffective assistance of
counsel at sentencing, and would reverse and
remand on that issue as well.
