223 F.3d 626 (7th Cir. 2000)
James T. Foster,    Petitioner-Appellee,  Cross-Appellant,v.James M. Schomig,    Respondent-Appellant,  Cross-Appellee.
Nos. 99-1398 & 99-1482
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 21, 1999Decided May 31, 2000As Amended on Denial of Rehearing and Suggestion for Rehearing En Canc Aug. 24, 2000.*

Appeals from the United States District Court   for the Northern District of Illinois, Eastern  Division.  No. 95 C 5037--Robert W. Gettleman, Judge. [Copyrighted Material Omitted]
Before Coffey, Manion, and Rovner, Circuit  Judges.
Manion, Circuit Judge.


1
James Foster was  convicted by an Illinois jury of  murdering his girlfriend by beating her  with a baseball bat, and was sentenced to  death because he also sexually assaulted  her by forcing pieces of the broken bat  into her rectum. The Illinois Supreme  Court affirmed and denied collateral  relief. He brought this Section 2254  motion to argue that his counsel were  ineffective for, among other things,  failing to call a psychiatrist to testify  during the sentencing phase of his trial.  He asserts that had such an expert been  called, he would have informed the court  that Foster suffered from an extreme  emotional disturbance, which is a  mitigating factor under Illinois law. The  district court accepted this argument and  granted Foster's petition. The State  appeals, arguing that the district court  erred in finding that Foster's attorneys  were ineffective. Foster cross-appeals,  arguing that the district court erred in  holding that the Antiterrorism and  Effective Death Penalty Act (AEDPA) was  applicable to this case and in finding  that one of his attorneys was not  ineffective for telling the jury that  Foster "killed the woman he loved."  Because the Illinois Supreme Court's  decision was not contrary to clearly  established law, we reverse the district  court in part and affirm in part.

I.

2
In 1985, James Foster was having an  adulterous relationship with Jacqueline  Simmons. Despite Foster's own infidelity  to his wife, he became angry at Simmons  when he suspected she was unfaithful to  him. So on the night of January 9, 1985,  Foster went to confront her at an  apartment she shared with her roommate--  Theresa Williams. He began yelling at  Simmons and ordered her to disrobe in  front of him so that he could look for  signs of her involvement with other men.  Screaming and crying, Simmons complied.  Foster then threw her to the floor and  proceeded to hit and kick her repeatedly,  all the while ignoring her pleas to stop.  He then picked her up by her hair with  such force that tufts of it were torn  out. After taking a short break, Foster  proceeded to beat Simmons with a baseball  bat while calling her a "bitch" and a  "whore" and accusing her of "messing  around" on him. After the bat broke,  Foster forced part of it into Simmons's  rectum. During the attack, Simmons's  young child and two other children were  sleeping in another room of the  apartment. Williams, Williams's  boyfriend, and a friend of Foster were  also in an adjoining room during the  beating. From there they could hear  Simmons's screams and they periodically  witnessed portions of the two-hour  attack. They were also the audience for  Foster's vaunts about how far he had  inserted the bat into Simmons's rectum.  He showed them a piece of the bat and  said "look at how much the bitch took."


3
After hearing Foster's boasts, Williams  went to assist Simmons and found her  breathing irregularly and suffering a  seizure. Although Williams told Foster  that Simmons desperately needed medical  attention, Foster responded that Simmons  was drunk and she just needed to sleep it  off. Foster then departed for a local  tavern; when he returned about twenty  minutes later, Simmons was dead. Not surprisingly, the coroner found that both of  Simmons's lungs were collapsed and that  she suffered blunt trauma injuries on her  head, chest, abdomen, and legs, as well  as lacerations on her anus and liver. He  determined that her death was caused by  multiple blunt trauma, which resulted in  swelling of the brain and internal  hemorrhage of the liver. Foster  eventually confessed to beating Simmons  with a baseball bat, which made the  jury's task at the guilt phase of his  trial easier. On June 7, 1985, after  hearing witnesses describe the details of  the crime and reading Foster's written  confession, the jury convicted him of  murder. The State asked for the death  penalty because the victim was killed in  the course of an aggravated sexual  assault. See 720 ILCS sec. 5/9-  1(b)(6)(c). Because no judge in Kane  County had ever sentenced a defendant to  death, Foster and his attorneys decided  to have the judge, rather than a jury,  determine his penalty.


4
Foster was represented at trial and  sentencing by attorneys Frank Giampoli, a  part-time, Assistant Kane County Public  Defender, and George Chabalewski, a full-  time Public Defender. After the jury  convicted Foster, his attorneys contacted  a psychiatrist, Dr. Lyle H. Rossiter,  Jr., to evaluate whether Foster suffered  from any psychological condition which  might prevent the imposition of the death  penalty. Rossiter examined Foster on June  8 and June 19, and submitted a full  report on June 21, 1985. The report  states that Foster had a history of  serious head injuries and substance abuse  and that he suffers from an antisocial  personality disorder. While some aspects  of Dr. Rossiter's report indicated the  presence of mitigating factors, it also  candidly stated that Foster had  "pronounced tendencies toward explosive  anger and aggressive physical outbursts."


5
Believing that Dr. Rossiter's testimony  would do more harm than good, and after  seeing the prosecutors effectively cross-  examine some of the other defense  witnesses, Foster's attorneys decided not  to present Dr. Rossiter's testimony.  Instead, they called various family  members and friends who characterized  Foster as a generous, hard-working,  religious, family man. The mother (not  his wife) of two of his six children  testified that his generosity  occasionally entailed the provision of  financial support for the two children.  The defense also tried to show that one  shooting incident in which Foster was  purportedly involved was simply a case of  mistaken identity. Foster's young son  also testified that his father played  basketball with him, exhorted him to lead  a good life, and all in all was an  excellent father. Other family members  and friends testified that he was  generous with his time and would help  sick relatives and repair automobiles for  free.


6
Of course, the State also presented its  own witnesses to show the presence of  aggravating factors. They described  Foster's previous convictions for  battery, armed robbery, theft, and  illegally possessing firearms. One  witness testified that Foster and his  comrades gang-raped him while they were  in jail. Another witness described how  Foster beat and raped her at gunpoint  when she was fifteen years old and how  when he was finished with her Foster  ordered her to urinate on herself. Other  witnesses described an incident similar  to the beating of Simmons. Foster and his  friends tied up a woman and repeatedly  beat her with a stick, after which Foster  picked her up and dropped her on her  face. The judge also heard that Foster  once stabbed a police officer with a  concealed knife while he was in police  custody. On another occasion, Foster  forcibly entered the home of one family  by blowing apart their door with a  shotgun, the blast from which wounded one  of the occupants. The prosecution closed  its case by describing the crime and  asking the court to remember Foster's  lack of remorse and the pain suffered by  Jacqueline Simmons.


7
Judge, I ask you when you go back into  chambers to consider this, to look,  again, at the photograph of this woman.  This is an attractive young girl who was  turned into this mess of mush with a  broken jaw and a torn liver.


8
And what does he do when he is finished  with her? As she's lying there dying, he  brags about it. This is a good time for  him. He revels. He revels in the torture  that he inflicted on this woman. He takes  the bat, holds it up to the people who  are in the next room, and with excrement  all over it, he says "Look how much the  bitch took up her ass." And then, he goes  to a local bar for a drink because to him  this is a reason to party. This is a good  time.


9
Sent. Tr. at 2540-41.


10
After considering all of the evidence,  the judge determined that Foster merited  the death penalty and set his execution  date for September 18, 1985. The Illinois  Supreme Court affirmed his conviction and  sentence on direct appeal. People v.  Foster, 518 N.E.2d 82 (Ill. 1987). Later,  it also denied the relief which Foster  sought under the Illinois Post-Conviction  Hearing Act. People v. Foster, 660 N.E.2d  951 (Ill. 1995).


11
Foster subsequently filed the present  petition which alleges that his counsel  were ineffective for failing to call Dr.  Rossiter as a witness and for admitting  during closing argument of the guilt  phase that Foster killed Simmons. The  district court succinctly dispatched  Foster's complaint about the closing  argument because Foster showed neither  deficient performance nor prejudice. But  the district court elected to hold an  evidentiary hearing on the ineffective  assistance at sentencing claim. The court  heard testimony from attorneys Giampoli,  Chabalewski, and Dr. Rossiter. Although  Dr. Rossiter's 1985 report makes no  mention of the term "extreme emotional  disturbance,1" he testified at the  evidentiary hearing that had he been  called as a witness at the sentencing  hearing, he would have told the court  that Foster suffered from such a  disorder. But his testimony also  indicated that, when effectively cross-  examined, he would have revealed that  Foster would exploit others for his own  personal gain, would rationalize  brutality, and was capable of inflicting  great harm without feeling any remorse.


12
Chabalewski and Giampoli testified that  they were both experienced litigators at  the time of Foster's trial and had both used Dr. Rossiter's expert testimony in  other cases. They testified that they  made a tactical decision not to present  Dr. Rossiter as a witness because they  feared that his assessment of Foster's  violent proclivities and inability to  feel remorse might harm Foster's chances  of escaping the death penalty. Despite  this testimony, the district court found  that Foster's counsel were  constitutionally ineffective at  sentencing. It therefore decided to grant  the writ unless Foster was afforded a new  sentencing hearing. By its own terms, the  district court's order was stayed pending  appeal. United States ex rel. Foster v.  Gilmore, 35 F. Supp.2d 626, 633 (N.D.  Ill. 1999).

II.

13
To prevail on his Section 2254 claims,  Foster must show that a decision by the  Illinois state courts "was contrary to,  or involved an unreasonable application  of, clearly established Federal law, as  determined by the Supreme Court of the  United States," or "was based on an  unreasonable determination of the facts  in the light of the evidence presented in  the State court proceeding." 28 U.S.C.  sec. 2254(d)(1) & (2);2 see Williams  v. Taylor, 120 S. Ct. 1495, 1521 (2000).  We review these questions de novo. Schaff  v. Snyder, 190 F.3d 513, 522 (7th Cir.  1999).  Findings of fact made by the  state courts are presumed to be correct  and this presumption may be rebutted only  by clear and convincing evidence. 28  U.S.C. sec. 2254(e)(1). In ineffective  assistance of counsel claims, the habeas  petitioner must show that his attorneys'  performance was deficient and that their  errors caused him prejudice. Strickland  v. Washington, 466 U.S. 668, 687-88, 692  (1984).


14
Foster argues here, as he did before the  Illinois Supreme Court and the district  court, that his attorneys acted  incompetently by declining to call Dr.  Rossiter to testify that Foster suffered  from an extreme emotional disturbance at  the time he killed Simmons.


15
In assessing the performance of counsel,  "a court must indulge a strong  presumption that counsel's conduct falls  within the wide range of reasonable  professional assistance; that is, the  defendant must overcome the presumption  that, under the circumstances, the  challenged action 'might be considered  sound trial strategy.'" Strickland, 466  U.S. at 689. Keeping this presumption in  mind, our task is to reconstruct the  circumstances surrounding the challenged  conduct and determine whether they were  reasonable. This determination must not  be distorted with hindsight. Rather we  must evaluate the conduct from counsel's  perspective at the time the relevant  decision was made. Id. A defense  attorney's performance is acceptable when  he chooses a professionally competent  strategy that secures for the accused the  benefit of an adversarial process.  Kokoraleis v. Gilmore, 131 F.3d 692, 696  (7th Cir. 1997). If the attorneys'  strategic decisions were sound when they  were made, these decisions cannot support  a claim of ineffective assistance.  Certainly the decision not to call a  witness to testify can be a strategic  decision. United States v. Kozinski, 16  F.3d 795, 813 (7th Cir. 1994). Such a  decision is sound "if it is based on the  attorney's determination that the  testimony the witnesses would give might  on balance harm rather than help the  defendant." Hall v. Washington, 106 F.3d  742, 749 (7th Cir. 1997).


16
The Illinois Supreme Court found that  Giampoli and Chabalewski's decision not to call Dr. Rossiter was "a matter of  trial strategy" which they concluded made  sense at the time the decision was made.  660 N.E.2d at 963. The district court, on  the other hand, concluded that Dr.  Rossiter's testimony would have  demonstrated the statutory mitigating  factor of extreme mental or  emotionaldisturbance, that Dr. Rossiter  was highly credible, and that his  testimony was effective and persuasive.  35 F. Supp.2d at 631. It believed that  the failure to present Dr. Rossiter as a  witness deprived the sentencing judge of  valuable testimony which would have  necessarily altered the judge's findings.  The court concluded that the failure to  present Dr. Rossiter's testimony "rises  to the level of constitutionally  ineffective assistance of counsel." Id.  at 633.


17
In arriving at his conclusion, the court  referred to the sentencing transcript  where the trial judge stated that he  could not find any evidence that  indicated or showed him that the murder  was committed while the defendant was  under the influence of extreme mental or  emotional disturbance. "There just isn't  any evidence of that factor." The  district court twice repeated the "there  just isn't any evidence" statement to  emphasize trial counsel's deficiency in  presenting mitigating evidence. But a  review of the sentencing transcript shows  that this statement was made in the  process of the court methodically going  through the five mitigating factors set  out in the Illinois statute.3 The  first factor to be considered was prior  criminal activity. The record was replete  with evidence of Foster's prior criminal  activity, so there was obviously no  mitigation there. The second factor  concerned whether the defendant was  "under the influence of extreme mental or  emotional disturbance . . . ." The  sentencing judge said that he could not  find any evidence which indicated or  showed him that the murder was committed  while the defendant was under such an  influence. This is where he said "There  just isn't any evidence of that factor."  Contrary to the district court's  characterization, the sentencing judge  wasn't distressed by the fact that none  was presented, nor did he question  whether there was any possibility of  presenting such evidence. As we discuss  below, there is a clear reason for this.  He then went on with the next three  mitigating factors making the same  cryptic statement that there was no  evidence indicating that the defendant  qualified for any of them.


18
Unfortunately, the hearing before the  district court, some thirteen years after  the trial, left something to be desired.  Although both defense attorneys  testified, neither of them had taken the  opportunity to review the sentencing  record, which included extensive  discussion among the attorneys and the  sentencing judge. Dr. Rossiter did have  an opportunity to at least review his  report. But all three witnesses-- defense  attorneys Giampoli and Chabalewski, and  Dr. Rossiter--had only vague  recollections of what took place prior to  and during the sentencing hearings. But  even with the witnesses' diminished  recollection, the record of the hearing  before the district court supports the  conclusion of the Illinois Supreme Court  that the decision not to call Dr.  Rossiter was a matter of reasonable trial  strategy. Both Chabalewski and Giampoli  testified that they had worked with Dr.  Rossiter before and thus knew how he  would testify on cross-examination. They  both carefully considered presenting Dr.  Rossiter's testimony at the sentencing  hearing but thought better of it when  they learned that he would describe  Foster as remorseless and prone to  violence.


19
Q.Whose decision was it not to call Dr.  Rossiter?


20
Giampoli:    I think we both thought long  and hard about it and felt that his  testimony would hurt more than help.


21
Evid. Hear. Tr. at 44. Chabalewski's  recollection was consistent with  Giampoli's.


22
Q. Why did you fail to use Dr.  Rossiter's report?


23
Chabalewski:  My recollection is that on  balance, it hurt us as much as it helped  us and gave, I think, as much reason for  imposition of the death penalty as not.


24
Q.  And precisely what portions of the  report did you believe were more harmful  to the case than helpful?


25
Chabalewski:  The one thing that I recall  is I think the doctor's assessment that  Mr. Foster was a sociopath.


26
*  *  *


27
Q.  And in your opinion, after going  through Dr. Rossiter's report, you felt  that it would be more harmful--harmful to  the defendant than beneficial at the  sentencing stage, am I correct?


28
Chabalewski:  Correct.


29
Q.  And that's why you didn't call Dr.  Rossiter?


30
Chabalewski:  Correct.


31
Evid. Hear. Tr. at 92, 106.


32
At the sentencing hearing, the state put  on extensive evidence of Foster's prior  criminal activity. In mitigation, the  defense presented witnesses who disputed  some of the facts regarding the criminal  activity referred to by the state. But  the bulk of the mitigating evidence  involved testimony of family and friends  regarding Foster's good works, his  helpfulness to family members and friends  in need, and his role as a father. The  hearing was then continued because there  was some question whether Dr. Rossiter  would testify. At a point in the hearing  the court stated to the defense attorney,


33
As I understand your comments this  morning, you are saying that you still,  as you stand here now, intend to go  forward with the medical--or, with the  psychological evaluation, to present that  as evidence in mitigation.


34
Accordingly, I will then permit the  state to move forward with their  examination.


35
Sent. Tr. at 2518-19.


36
At the hearing on June 25, 1985, the  court learned that the defense would not  be calling Dr. Rossiter to testify. After  the attorneys discussed several documents  that would or would not come into  evidence, the prosecutor stated to the  court:


37
I have one other matter that I would  like to put on record in regard to the  expert testimony that the defense was  seeking to procure in this case.


38
Our office talked personally to Dr.  Rossiter, and also received a report from  him indicating that he had examined the  defendant.


39
It's also come to our attention that  various medical tests were performed on  the defendant at Community Hospital as  part of the evaluating process by Dr.  Rossiter.


40
We lined up a witness to come to court  today in rebuttal.


41
Since the defendant indicated they would  not call Dr. Rossiter, obviously, we have  called off our witness.


42
We were ready to proceed if, in fact,  the defense wanted to call Dr. Rossiter.


43
What I'm indicating in summary, Judge,  is that all of the tests that the defense  sought to have performed on the defendant  were, in fact, carried out. And it was a  strategy decision on the part of the  defense not to call Dr. Rossiter. He was  available, and he did complete all of the  testing that they were seeking.


44
Sent. Tr. at 2534-35.

In response, attorney Giampoli stated:

45
Your Honor, basically, the only comment  attacking that comment is that this Court  cannot infer that those reports would  have a negative or positive effect  because, obviously, we just decided we  didn't want to call the expert.    The Court:  I understand. I was just  about to stop the defendant if any  comment was made to what the tests may or  may not indicate because, as far as I am  concerned, that is the choice you people  made.


46
I think the record does reflect that you  did have the opportunity to have the  defendant evaluated and tests performed  and things of that nature, and that's--  and that's as far as it goes.


47
Sent. Tr. at 2535-36.


48
Given this exchange, it is readily  apparent that the decision not to call  Dr. Rossiter was a thoughtful and  strategic one and that the prosecution  was not only going to bring in its own  expert psychiatric witness in the event  Dr. Rossiter testified, but there were  also certain documents that would reveal  the results of a number of medical tests.  Without saying why, the defense attorneys  emphasized to the court that it should  not infer that those reports would have a  negative or positive effect. This further  demonstrates that defense counsel had  every opportunity to review those  reports, and in view of the opposing  expert that would have been called, made  a strategic decision not to call Dr.  Rossiter.  Given the context of the  actual hearing, and not based on what the  witnesses could or could not recall  thirteen years later, not calling Dr.  Rossiter was entirely reasonable.4


49
The preclusion of whatever aggravating  evidence the prosecution was marshaling  was not the only thing that made the  decision not to call Dr. Rossiter  reasonable. As we have noted before in  cases like this one, there is a strong  possibility that the defendant's  mitigation evidence might turn out to be  aggravating. See Emerson v. Gramley, 91  F.3d 898, 906 (7th Cir. 1996). Dr.  Rossiter's preliminary report foretold  enough aggravating factors that could  offset whatever evidence of extreme  emotional disturbance might have been  mitigating. For instance, the report  stated that Foster has "an antisocial  personality disorder" and has "pronounced  tendencies toward explosive anger and  aggressive physical outbursts." Because  the report describes Foster in an  unflattering light, to say the least, it  would have caused any competent attorney  to pause and consider how devastating  this testimony could be to Foster's case.  From Dr. Rossiter's testimony at the  evidentiary hearing thirteen years later  we further see how he would have  described Foster if he had been called to  testify at the sentencing phase.5 Dr.  Rossiter stated:


50
I saw him [Foster] as a particularly  self-centered individual, probably  capable of exploiting others for his own  personal gain without regard to their  rights, let alone their sensibilities.


51
I think that he is capable of  rationalizing a good deal of the  brutality in this particular case. I  think he was capable of denying to me or  representing to me certain events in  somewhat less than entirely candid  detail.


52
*  *  *


53
[C]ertainly antisocial disorder, with it  by definition lack of the usual  constraints of conscience and the usual  ideal that provide the standards to which  one conforms conduct, that--that  characteristic of the antisocial  personality disorder would be a strong  aggravating factor in one sense.


54
The irony of the situation, if I may,  your Honor, is that from a psychiatric  point of view, an antisocial personality  disorder is a very extreme developmental  disorder. It's a very defective  development of the human personality. The  absence of the constraints of conscience  and the ideals that guide and constrain  one's behavior, that is an abnormality of  human nature. So in itself, it  constitutes, from a clinical point of  view, a very severe aberration.


55
It is not typically regarded that way  from a forensic legal point of view, of  course, but the fact is that persons who  have such disorders are very severely  crippled in their ability to lead a  normal life, to cooperate, to relate to  other people in a normal manner.


56
Evid. Hear. Tr. at 180-81 (emphasis  added). When cross-examined, Dr. Rossiter  was forced to expand upon his description  of Foster as a remorseless criminal.


57
Q.  Okay. Dr. Rossiter, it is my  understanding that an individual who  suffers from an antisocial personality  disorder, that it's typical of that type  of individual to have a criminal history,  is that correct?


58
A.  That's correct.


59
Q.  And you had testified that this  starts with burglaries and purse  snatchings and crimes of that nature, am  I correct?


60
A.  Correct.


61
Q.  And that it's not uncommon for an  individual who suffers from an antisocial  personality disorder to graduate into  more violent crimes, am I correct?


62
A.  That's true.


63
Q.  And in fact, Mr. Foster has a history  of violent crimes?


64
A.  That's true.


65
Q.  And he has the antisocial personality  disorder, is that right?


66
A.  That's correct.


67
*  *  *


68
Q.  It's my understanding as well that  people with an antisocial personality  disorder are generally considered to be  remorseless, is that fair?


69
A.  Correct?


70
Q.  Devious?


71
A.  Yes.


72
Q.  Dishonest?


73
A.  Yes.


74
Q.  Self-centered?


75
A.  True.


76
Evid. Hear. Tr. at 172-73. When asked  whether Foster might become increasingly  violent, Dr. Rossiter conceded that this  might happen, and in his deposition  testimony he went so far as to say that  Foster was predisposed to violence.  Although Dr. Rossiter opined in his  deposition that his report would have  been more helpful to Foster's case than  harmful, he conceded that there were  aggravating factors in his report, and  that based on his twenty-five years of  experience in criminal matters, "the  diagnosis of antisocial personality  disorder is usually taken in legal  circles as a damning kind of finding  because the individual is characterized  as being predatory, malicious,  unconscionable, and calculating in his  criminal activities."


77
As Dr. Rossiter emphasized several  times, extreme emotional disturbance is a  legal term, not a medical one. When the  district court pressed him at the  hearing, Dr. Rossiter acknowledged that  he would discuss the pros (mitigating)  and cons (aggravating) with defense  counsel. Dr. Rossiter stated, "I call  them as I see them. I try to inform the  consulting--the attorney for whom I'm  consulting of the potential two-edged  sword of my testimony if there is one,  because what I have to say may be  mitigating or damning, depending on which  dimension of the human nature under  question I'm talking about." Evid. Hear.  Tr. at 182.6


78
This kind of testimony could have  substantially damaged Foster's case.  Foster obviously would not have wanted  the sentencing judge to hear an expert  opinion that Foster's psychological  aberrations cause him to disregard the  rights and feelings of others to such an  extent that he would feel no remorse even  after killing a young mother while her  child was sleeping in the next room. Dr.  Rossiter's testimony risked designating  Foster's treatment of Jacqueline Simmons  as something he would be inclined to do  again. It would have suggested that  Foster's violent behavior was not the  exception but the rule, making him a  constant threat to prison guards or  fellow inmates. Given the context in  which Dr. Rossiter's testimony would have  been presented, it was a reasonable  strategic decision for the defense  attorneys not to expose Dr. Rossiter to  the prosecution's cross-examination,  especially because it would have opened  the door to the testimony of the  government's psychiatric expert.


79
Thus, we agree with the Illinois Supreme  Court that the decision not to call Dr.  Rossiter as a mitigation witness was a  matter of sound strategy. Foster has  failed to rebut the presumption that his  counsel's decision was based on a  legitimate strategy or that his counsel's  performance fell below an objective  standard of reasonableness.7


80
Even if we assume for the sake of the  argument that his attorneys were  incompetent in failing to present  Rossiter's testimony, Foster has failed  to show that this caused him prejudice.  To demonstrate prejudice, a defendant  must show that "there is a reasonable  probability that, but for counsel's  unprofessional errors, the result of the  proceeding would have been different. A  reasonable probability is a probability  sufficient to undermine confidence in the  outcome." Strickland, 466 U.S. at 694.  The prejudice inquiry "focuses on the  question whether counsel's deficient per  formance renders the trial unreliable or  the proceeding fundamentally unfair."  Williams, 120 S. Ct. at 1513 n.17. In the  penalty phase of a capital case, to show  prejudice the movant must demonstrate  that "a reasonable probability exists  that, but for counsel's substandard  performance, the sentencer 'would have  concluded that the balance of aggravating  and mitigating factors did not warrant death.'"  See Hall, 106 F.3d at 751-52 (quoting  Strickland, 466 U.S. at 695).


81
The Illinois Supreme Court concluded  that "[t]here is no reasonable  probability that the introduction of Dr.  Rossiter's testimony would have prompted  the sentencing judge to find that there  were mitigating circumstances sufficient  to preclude imposition of the death  penalty." Foster, 660 N.E.2d at 963. Our  review of the record leads us to agree  with the Illinois Supreme Court. At best,  Dr. Rossiter's testimony would have  helped Foster by suggesting that he was  suffering from schizophrenia, was  depressed at the time he killed Simmons,  and that due to psychological factors  beyond his control, he was prone to  violent outbursts. The presence of these  factors caused Dr. Rossiter to believe  (at least at the time of the hearing  before the district court) that when he  killed Simmons, Foster was under the  influence of extreme mental or emotional  disturbance. Assuming that the sentencing  judge would have believed Dr. Rossiter,  and would have disbelieved any  psychiatric evidence the state presented  to the contrary, Dr. Rossiter might have  put some weight on the mitigation arm of  the scale. We say "might have" because we  have noted before that the presence of an  emotional or mental disturbance can be  seen by some not as a mitigating factor,  but as an aggravating one. "Mitigation .  . . after all, may be in the eye of the  beholder." Burger v. Kemp, 483 U.S. 776,  794 (1987). Sentencing judges "may not be  impressed with the idea that to know the  cause of viciousness is to excuse it;  they may conclude instead that when  violent behavior appears to be outside  the defendant's power of control, capital  punishment is appropriate to  incapacitate." Burris v. Parke, 130 F.3d  782, 784-85 (7th Cir. 1997).


82
But even if Dr. Rossiter's testimony  definitely would have established the  existence of a mitigating factor, the  presence of one (or more than one)  mitigating factor does not preclude the  imposition of the death penalty. Rather,  Illinois law requires the sentencing  judge to consider all mitigating and  aggravating factors, including those  aggravating factors intentionally or  unintentionally set forth by a  "mitigation" witness. 720 ILCS sec. 5/9-  1(c). Thus, the sentencing judge was  obliged to consider those aspects of Dr.  Rossiter's testimony which spoke to  Foster's lack of rehabilitative  potential, his propensity to commit  violent acts, his inability to assimilate  himself into society, his failure to  accept responsibility for his crimes, and  his lack of remorse. See People v. Ward,  718 N.E.2d 117, 127 (Ill. 1999); People  v. Shatner, 673 N.E.2d 258, 268 (Ill.  1996); People v. Anderson, 672 N.E.2d  1314, 1319-20 (Ill. App. Ct. 1996);  People v. Kerkering, 671 N.E.2d 368, 372  (Ill. App. Ct. 1996); People v. Moore,  620 N.E.2d 583, 589 (Ill. App. Ct. 1993).  The district court did not take into  account these facets of Dr. Rossiter's  testimony when it concluded that the  defense attorneys rendered ineffective  assistance by not calling Dr. Rossiter to  testify.


83
The district court believed that because  the sentencing judge was required to  consider whether Foster was emotionally  disturbed, "it is axiomatic that the  presentation of such evidence would have  influenced the sentencing judge." 35 F.  Supp.2d at 632. No doubt it would have  had some influence, but that influence  could well have been negative.


84
But even if Dr. Rossiter's testimony  could be construed as having no  aggravating elements, and even if it  would not have opened the door to  psychological evidence from the  prosecution, in light of the other  evidence it seems that Dr. Rossiter could  hardly have established that Foster was  under an extreme emotional disturbance at  the time he murdered Simmons. As the  Illinois Supreme Court pointed out, "An  extreme emotional disturbance occurs when  defendant's emotional state at the time  of the murder is 'at such a fragile point  as to leave him with little or no  emotional control.'" 660 N.E.2d at 963  (quoting People v. Phillips, 538 N.E.2d  500, 514 (1989)). Apparently Foster had  been looking for Jacqueline Simmons  throughout the evening of January 9,  1985. After several unsuccessful  attempts, he finally found her at the  apartment later that night. The brutal  beating with a baseball bat, witnessed  intermittently by three adults, lasted  nearly two hours. After showing off the  bat handle that he had inserted in  Simmons's rectum, Foster left with a  friend to visit a bar. On the way out he  dismissed Theresa Williams's warning that  Simmons needed to go to the hospital and  simply observed that "Simmons was drunk  and they should let her sleep it off."  518 N.E.2d at 85.  When he returned about  20 minutes later, Simmons was dead. As  the Illinois Supreme Court concluded:


85
Defendant exhibited rational and logical  conduct on the night of the murder.  Defendant spoke to the victim and the  others in the apartment that night in a  coherent and rational manner. He tried to  resuscitate Simmons and removed evidence  of the beating from the apartment.  Defendant apparently expected the police  to investigate and he concocted a story  to tell them in order to protect himself.  In light of all the evidence which the  trial court considered at sentencing,  including defendant's history of criminal  activity, defendant failed to demonstrate  a reasonable probability that the  sentencing judge would not have imposed  the death penalty if trial counsel had  presented Dr. Rossiter's testimony in an  effort to show that defendant was under  an extreme emotional disturbance at the  time of the murder.


86
660 N.E.2d at 963-64.


87
We agree with the Illinois Supreme  Court. Even if we were to conclude that  counsel were ineffective, which we do  not, Foster could not demonstrate  prejudice. Because the totality of Dr.  Rossiter's testimony would not have  provided a net benefit to Foster's case,  and instead would likely have harmed it,  Foster has failed to show that there is a  reasonable probability that but for Dr.  Rossiter not testifying the sentencer  would have concluded that the balance of  aggravating and mitigating factors did  not warrant death. See Hall, 106 F.3d at  751-52. Thus, he has failed to satisfy  either the deficient performance or  prejudice prong of Strickland.


88
Foster's final argument is that Giampoli  doomed his case by stating during closing  argument of the guilt phase of the trial  that Foster "killed the woman he loved."  The Illinois Supreme Court and the  district court correctly determined that  Foster failed to show either that the  statement constituted deficient  performance or that prejudice resulted  from this remark. Obviously, Giampoli was  attempting to direct the jury's attention  to the intent element, the element on  which Foster hoped to prevail. Giampoli  testified as much. It is reasonable to  focus a jury's attention on the element  which provides the greatest chance of  success and we previously held that this  is a sound trial strategy. See Underwood  v. Clark, 939 F.2d 473, 474 (7th Cir.  1991); see also United States v. Wilks,  46 F.3d 640, 644 (7th Cir. 1995)  (conceding guilt on one count was a  reasonable tactic because it lent  credibility to counsel). So contrary to  Foster's assertions, merely conceding the  presence of one element was not an  admission of guilt and certainly was not  unreasonable in this context. Also,  because the jury had already heard  testimony that Foster confessed to  beating Simmons, had seen his written  confession, heard uncontradicted  testimony from witnesses to the beating,  and heard the coroner testify as to the  cause of Simmons's death, Giampoli didn't  tell the jury anything it didn't already  know. This statement hardly could have  caused prejudice. Therefore, we agree  with the district court that the Illinois  courts did not err in denying relief on  this claim.

III.

89
Because Foster has not shown that his  conviction or sentence was contrary to  clearly established law or was an  unreasonable application of law as set  out in Strickland, he cannot prevail.  Accordingly, we AFFIRM the district  court's denial of his Section 2254 motion  on his ineffective assistance claim  regarding his counsel's closing argument  during the guilt phase. We REVERSE the  district court's granting of his Section  2254 motion on his ineffective assistance  claim with respect to the sentencing  phase of his case.



Notes:


*
 Judges Ripple, Rovner, Diane P. Wood, and Williams voted to grant rehearing.


1
 "Extreme emotional disturbance" is a legal term  rather than a medical one. In assessing a defend-  ant's fitness for the death penalty, Illinois law  requires a sentencing judge to consider all  aggravating and mitigating factors, including  "whether the murder was committed while the  defendant was under the influence of extreme  mental or emotional disturbance . . . ." 720 ILCS  sec. 5/9-1(c)(2). Under Illinois law, a "defendant is under the influence of an extreme emotional disturbance when the defendant's emotional  state at the time of the murder is at such a  fragile point as to leave him or her with little  to no emotional control." People v. Evans, 708  N.E.2d 1158, 1166 (Ill. 1999).


2
 Because Foster filed his petition on January 16,  1997, the AEDPA applies. Williams v. Taylor, 120  S. Ct. 1479, 1486 (2000). He argues that the date  he sought appointment of counsel (September 1,  1995) should constitute the initiation date of  his petition, but we have rejected this argument  before and now do so again. Gosier v. Welborn,  175 F.3d 504, 506 (7th Cir. 1999).


3
 720 ILCS sec. 5/9-1(c) provides:
Mitigating factors may include but need not be  limited to the following:
(1) the defendant has no significant history of  prior criminal activity;
(2) the murder was committed while the defendant  was under the influence of extreme mental or  emotional disturbance, although not such as to  constitute a defense to prosecution;
(3) the murdered individual was a participant in  the defendant's homicidal conduct or consented to  the homicidal act;
(4) the defendant acted under the compulsion of  threat or menace of the imminent infliction of  death or great bodily harm;
(5) the defendant was not personally present  during the commission of the act or acts causing  death.


4
 Our review here includes not only the record of the hearing before the district court, but also the state court opinions and record, most significantly the record of the guilt and sentencing phases of the trial including the sentencing court's findings and conclusions. We certainly owe deference to the district court in its determination of witness credibility and the findings from the hearing on the habeas petition. This court has noted that in an appeal from a ruling on a petition for habeas relief, we review a district court's findings of fact for clear error and its ruling on issues of law de novo. Warren v. Richland County Circuit Court, 223 F.3d 454, 2000 WL 1092133, at *2 (7th Cir. 2000); Gardner v. Barnett, 199 F.3d 915, 918 (7th Cir. 1999). Claims of ineffective assistance involve mixed questions of law and fact which we review de novo. United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000); Hall v. Washington, 106 F.3d 742 at 748. Here, where the court based its ruling on findings from its own hearing combined with findings it gleaned from the cold record of the original sentencing transcript, we are inclined to apply the clearly erroneous standard. That said, we disagree with the finding that Foster's counsel did not make a strategic decision regarding whether to call Dr. Rossiter as a witness. Because we conclude the court's determination was unreasonable and contrary to the record, it can appropriately be called a clear error. Concrete Pipe and Products of Cal., Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 124 L. Ed. 2d 539, 113 S. Ct. 2264 (1993) ("A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed.").


5
 We consider Dr. Rossiter's testimony only to the  extent it indicates what he told Foster's attorneys concerning what his testimony would have  been had he testified at the sentencing hearing.  Considering anything else would be an impermissible use of hindsight. See Strickland, 466 U.S. at  689.


6
 At the hearing he had no recollection one way or  the other whether thirteen years earlier he  talked to the defense attorneys about these pros  and cons.


7
 One might argue that defense counsel should have  gambled on presenting Dr. Rossiter's testimony,  as Foster already had a dismal case and had  little to lose. While it's true that the sentencing judge may have inferred from the depravity of  the crime itself that Foster possessed some of  the attributes which Dr. Rossiter ascribed to  him, Dr. Rossiter would have provided an expert  opinion that Foster was a fundamentally flawed  individual whose characteristics included a  predisposition to violence and an inability to  feel remorse. Our review of the sentencing hearing transcript indicates that no other witness  explicitly made these assertions.



90
Rovner, Circuit Judge, concurring in part and  dissenting in part.


91
I respectfully dissent  because I believe the majority has failed to give  any deference to the fact-findings of the district court, instead ignoring the evidentiary  hearing in its entirety and applying de novo  review. Federal Rule of Civil Procedure 52 (a)  provides that "[f]indings of fact, whether based  on oral or documentary evidence, shall not be set  aside unless clearly erroneous, and due regard  shall be given to the opportunity of the trial  court to judge of the credibility of the witnesses." See also Anderson v. City of Bessemer City,  North Carolina, 470 U.S. 564, 573-76 (1985);  Moffat v. Gilmore, 113 F.3d 698, 700 (7th Cir.  1997) (for a habeas petition, the district  court's findings of fact are reviewed for clear  error and conclusions of law are reviewed de  novo); Bocian v. Godinez, 101 F.3d 465, 468 (7th  Cir. 1996) (same). Here, the district court heard  the testimony of Foster's original defense attorneys as well as Dr. Rossiter. After listening to  the attorneys themselves, the district court  concluded that Foster's attorneys did not make a  strategy decision at all regarding whether to  call Dr. Rossiter. On the contrary, the court  concluded, "Indeed, it does not appear that  counsel made a 'decision' not to offer Dr. Rossiter, but rather simply succumbed to the fact that  they were not prepared to do so." Foster v.  Gilmore, 35 F.Supp.2d 626, 632 n.11 (N.D. Ill.  1999). Implicit in this finding is the district  court's conclusion that Foster's attorneys were  not credible at the evidentiary hearing when they  testified that they decided on balance that Dr.  Rossiter's testimony would harm Foster more than  help him. The district court concluded that the  attorneys' failure to consult a psychiatric  expert prior to or during the trial in order to  lay the groundwork for demonstrating extreme  emotional disturbance was "inexplicable" and  "wholly ineffective." Id., 35 F.Supp.2d at 630.  The subsequent failure to present Dr. Rossiter's  testimony was "inexcusable," according to the  district court. Id., 35 F.Supp.2d at 631.


92
Without pointing to any flaws in the reasoning  and findings of the district court, the majority  opines that "the hearing before the district  court . . . left something to be desired." Ante  at 632. The majority concludes that the hearing  "supports the conclusion of the Illinois Supreme  Court that the decision not to call Dr. Rossiter  was a matter of reasonable trial strategy." Id.  Of course, there was no evidentiary hearing at  all in the state court, and so it is unclear on  what evidence the Illinois Supreme Court based  this conclusion and even more unclear why we  should uphold it. Instead of deferring to the  district court's findings of fact following a  full evidentiary hearing, the majority takes a  lengthy tour through the original sentencing  transcript, concluding from the cold record,  contrary to the credibility findings of the  district court, that "not calling Dr. Rossiter  was entirely reasonable." Ante at 634. Again, the  district court found, as a matter of fact, that  Foster's counsel made no reasoned decision at  all, but rather "succumbed" to unpreparedness. We  cannot set aside that finding unless we have a  strong conviction that the district court committed clear error. Anderson, 470 U.S. at 573 ("The  reviewing court oversteps the bounds of its duty  under Rule 52(a) if it undertakes to duplicate  the role of the lower court."). The majority has  supplied no reason to believe the district court  clearly erred.


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


94
James Foster suffers from borderline paranoid  schizophrenia, schizoid personality, explosive  personality disorder and antisocial personality  disorder. He also suffered from depression,  brought on by the death of his mother approximately five months before he committed this  crime. He has a long history of drug and alcohol  abuse, and at the time of the offense, he was  under the influence of alcohol, cocaine and  marijuana. Foster has a history of serious head  injuries sustained in 1969, 1975 and 1981. The  sentencing court never heard any of this evidence  because Foster's counsel did not call Dr. Rossit-  er to testify at the hearing in mitigation. Dr.  Rossiter did testify before the district court,  and the district court found him to be highly  credible. Dr. Rossiter testified that defense  counsel never asked him at the time of the  sentencing hearing to determine whether Foster  was under an "extreme emotional disturbance," a  statutory factor in mitigation in Illinois. See  Eddmonds, 93 F.3d at 1325 (attorney essentially  abdicated his duty to make reasonable inquiry of  mitigating circumstances where, among other  things, he never asked a mental health expert to  render an opinion on whether the defendant suffered a mental disturbance at the time of the  crime when other information pointed to past  psychological problems) (Flaum and Rovner concur-  ring). Dr. Rossiter testified in the district  court that, had he been asked, he would have  answered that Foster was suffering from an ex-  treme emotional disturbance at the time of the  crime. When defense counsel knew that the evidence against his client was overwhelming, indeed  when defense counsel admitted in closing arguments that the defendant killed the woman he  loved, it was patently clear that the only issue  for the finder of fact to resolve was the defend-  ant's mental state at the time of the crime.1  Under these circumstances, to fail to consult a  mental health expert earlier is inexplicable and  constitutes ineffective assistance of counsel.  The subsequent failure to ask Dr. Rossiter the  only relevant question, whether the defendant was  under an extreme emotional disturbance at the  time of the crime, demonstrates that Foster was  essentially without counsel for the purposes of  the sentencing hearing.


95
The question remains whether Foster was prejudiced by his attorneys' ineffective assistance at  sentencing. Under Strickland, Foster must show  that there is a reasonable probability that, but  for his attorneys' errors, the result of the  proceeding would have been different. Strickland  v. Washington, 466 U.S. 668, 695 (1984). "[A]  defendant need not show that counsel's deficient  conduct more likely than not altered the outcome  in the case." Id., 466 U.S. at 693. Rather, "[a]  reasonable probability is a probability sufficient to undermine confidence in the outcome."  Id., 466 U.S. at 694.


96
The district court found that because extreme  emotional disturbance is a factor in mitigation  that the trial court must consider under the  statute, and because Foster had no other effective evidence in mitigation, he was prejudiced by  this failure. I agree. Illinois law provides  that:


97
The court shall consider . . . any aggravating  and any mitigating factors which are relevant to  the imposition of the death penalty. . . .  Mitigating factors may include but need not be  limited to the following:


98
(1).  the defendant has no significant history of  prior criminal activity;


99
(2) the murder was committed while the defendant  was under the influence of extreme mental or  emotional disturbance, although not such as to  constitute a defense to prosecution;


100
(3) the murdered individual was a participant in  the defendant's homicidal conduct or consented to  the homicidal act;


101
(4) the defendant acted under the compulsion of  threat or menace of the imminent infliction of  death or great bodily harm;


102
(5) the defendant was not personally present  during commission of the act or acts causing  death.


103
720 ILCS sec. 5/9-1.


104
The trial court considered the statutory mitigating factors one by one, concluding that there  was no evidence supporting mitigation under any  of these theories. The trial court then considered non-statutory evidence presented, which  consisted entirely of statements by friends and  family members regarding Foster's more redeeming  personal qualities. The evidence was thin. In-  deed, the majority recognizes the flimsy nature  of the mitigation evidence, noting that "[t]he  mother (not his wife) of two of his six children  testified that his generosity occasionally entailed the provision of financial support for the  two children." Ante at 629. Other evidence present-  ed included testimony by Foster's father and  uncle about Foster's religious convictions, and  testimony by Foster's twelve-year-old son that  his father was a "nice man" who played basketball  with him, took him on vacations and taught him  about the Bible. The trial court, after finding  no statutory mitigating factors present, stated,  "I listened with interest to Mr. Giampoli's so-  called nonstatutory mitigating factors. And I  find none of those to be of adequate mitigation  to change this


105
situation." Sentencing Tr. June  25, 1985 at 62. Foster was effectively without  any evidence in mitigation. "Without a reasonable  showing of mitigation by the defense, the court  had no choice: under the Illinois death penalty  scheme, if no sufficient mitigating factors are  found, 'the court shall sentence the defendant to  death.'" Hall v. Washington, 106 F.3d 742, 752  (7th Cir. 1997), cert. denied, 522 U.S. 907  (1997) (citing 720 ILCS 5/9-1(h)).


106
The majority has adequately detailed the evidence in aggravation. Against this, the trial  court weighed nothing. Foster's attorneys testified before the district court that they feared  Dr. Rossiter's testimony on cross-examination  would have harmed rather than helped Foster. It  is difficult to see how it could have harmed him.  The district court was already well aware of  Foster's tendency toward explosive anger and  aggressive physical outbursts. Dr. Rossiter's  testimony would have provided the only explanation for this behavior, the only evidence that  Foster suffers from a number of serious psycho-  logical problems. The district court concluded:


107
In the instant case, having heard Dr. Rossiter's  testimony at the evidentiary hearing, in which he  was subjected to skillful cross-examination, this  court concludes that his testimony would have  demonstrated the statutory mitigating factor of  extreme mental or emotional disturbance. This  court finds that Dr. Rossiter was highly credible  and that his testimony was effective and persuasive. The failure to present this testimony at  the sentencing hearing was inexcusable.  Foster, 35 F.Supp.2d at 631 (footnote omitted).  The court commented that Dr. Rossiter "convincingly defended his conclusion that petitioner was  acting under an extreme emotional disturbance."  Id., 35 F.Supp.2d at 631 n.9. The district court  also noted that Dr. Rossiter testifies for the  prosecution two-thirds to three-quarters of the  time.


108
It is difficult to imagine how Dr. Rossiter's  testimony would not have affected the sentencing  court. Again, we need not find that the sentencing court would more likely than not have sentenced Foster to life rather than death. Strickland, 466 U.S. at 694. We need only find that Dr. Rossiter's testimony undermines our confidence in  the outcome. Id. My confidence is undermined. I  therefore respectfully dissent.



Notes:


1
 I agree with the majority that defense counsel's  reference to Foster killing the woman he loved  did not constitute deficient performance under  the circumstances. Therefore, I concur in this  part of the majority's opinion. I also concur  with the majority's conclusion that the AEDPA  applies to Foster's petition.


