                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-2315
NORMAN TIMBERLAKE,
                                           Petitioner-Appellant,
                               v.

CECIL DAVIS, Superintendent,
Indiana State Prison,
                                          Respondent-Appellee.
                         ____________
       Appeal from the United States District Court for the
       Southern District of Indiana, Indianapolis Division.
        No. IP 02-C-36-Y/S—Richard L. Young, Judge.
                         ____________
       ARGUED APRIL 6, 2005—DECIDED MAY 27, 2005
                      ____________




  Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.
  EASTERBROOK, Circuit Judge. Norman Timberlake and
Tommy McElroy stopped their car and proceeded to urinate
by the side of a highway. A state trooper arrived and learned
that McElroy was a fugitive. While trooper Greene was tak-
ing McElroy into custody, Timberlake shot and killed
Greene. A jury convicted Timberlake of murder and unani-
mously recommended that he be sentenced to death on the
basis of a statutory aggravating factor: the victim was a
police officer acting in the line of duty.
2                                                No. 04-2315

Ind. Code §35-50-2-9(b)(6). The judge imposed the recom-
mended sentence. The Supreme Court of Indiana affirmed,
690 N.E.2d 243 (1997), and rejected a request for collateral
relief, 753 N.E.2d 591 (2001). The district court denied
Timberlake’s petition under 28 U.S.C. §2254 for a writ of
habeas corpus.
  As the case reaches us, only two questions remain in con-
tention: whether the trial judge should have directed
Timberlake to undergo a mental examination to determine
his competence for trial, even though neither side asked for
an examination; and whether Timberlake’s lawyer fur-
nished constitutionally inadequate assistance. With respect
to each the state argues, and the district judge held, that
Timberlake forfeited the contention by failing to present it
to the state judiciary at the required time. We start with
this subject, because the two supposed defaults have some-
thing in common: the Supreme Court of Indiana relied on
state procedural rules that changed after Timberlake’s
direct appeal.
  During the 1980s the Supreme Court of Indiana repeat-
edly declared that assertions of incompetence to stand trial
could be raised on either direct appeal or collateral review.
See, e.g., Smith v. State, 443 N.E.2d 1187, 1188 (Ind. 1983);
Hammer v. State, 545 N.E.2d 1, 3 (Ind. 1989). More recently,
however, the state’s highest court has required defendants
to raise on direct appeal all questions that can be resolved
on the basis of the trial record. See, e.g., Rouster v. State,
705 N.E.2d 999, 1003 (Ind. 1999). (There is an exception for
claims of ineffective assistance, which we discuss later.) It
applied this approach to Timberlake’s complaint about
competence, ruling that it had been forfeited because all of
the events that Timberlake now says should have alerted
the trial judge to the possibility of his mental shortcomings
were in the trial record and thus could have been presented
in direct appeal. See 753 N.E.2d at 598. Just to be safe,
No. 04-2315                                                  3

however, the Supreme Court of Indiana also considered and
rejected this contention on the merits. Id. at 598-602.
  The pattern is much the same for ineffective assistance of
counsel. At one time Indiana allowed such contentions to be
presented on direct appeal, collateral review, or both, at the
defendant’s option. Then it began to insist that any claim
that could be supported by the trial record be presented on
direct appeal—but this caused problems because sometimes
the original record has some indicators of deficiencies but
not enough to establish a constitutional flaw. Thus like the
Supreme Court of the United States, see Massaro v. United
States, 538 U.S. 500 (2003), the Supreme Court of Indiana
eventually held that defendants always may reserve this
subject for collateral review. See Woods v. State, 701 N.E.2d
1208, 1220 (Ind. 1998); Ben- Yisrayl v. State, 738 N.E.2d
253, 259 (Ind. 2000). But it also held that, if the defendant
does elect to argue ineffective assistance on direct appeal,
this is the only shot; a defendant must choose which time to
make the argument and cannot do it twice. Again this
parallels the federal practice. See Davis v. United States,
417 U.S. 333, 342 (1974); Peoples v. United States, 403 F.3d
844 (7th Cir. 2005); United States v. Taglia, 922 F.2d 413,
418 (7th Cir. 1991). The Supreme Court of Indiana applied
these rules to Timberlake’s collateral attack and held that
he is not entitled to reargue ineffective assistance on the
record built on collateral review. 753 N.E.2d at 602-03.
Once again taking the cautious route, however, the state
court considered the possibility that Timberlake’s lawyer on
direct appeal had rendered ineffective assistance by contend-
ing that trial counsel had furnished ineffective assistance. It
held that Timberlake could not show prejudice, because
“there is not a reasonable probability that the jury would
have found the mitigators [had any been presented] to out-
weigh the very weighty aggravator.” Id. at 610.
  The dates of these opinions show why both findings of
procedural default are problematic. Timberlake’s direct
4                                               No. 04-2315

appeal was decided in 1997; important procedural opinions
were issued later, and defendants need not anticipate new
developments. States are free to apply doctrinal changes
retroactively for their own purposes, but only a rule that
was established at the time of the act said to constitute the
procedural default is an “independent and adequate state
ground” that blocks federal collateral review. Ford v.
Georgia, 498 U.S. 411, 424 (1991); Liegakos v. Cooke, 106
F.3d 1381, 1385 (7th Cir. 1997). Prescience is not required;
a state rule that materially changed after the time of the
supposed default cannot be used to show that a federal claim
had been forfeited. For federal purposes, then, Rouster does
not foreclose Timberlake’s attempt to raise arguments
about his competence to stand trial.
   As for ineffective assistance: Woods is not the most
important decision. Woods is Indiana’s parallel to Massaro,
holding that a defendant safely may postpone an ineffective-
assistance argument to collateral review. For Timberlake,
who elected to present an ineffective assistance claim on di-
rect appeal, the most important development came in
Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997), which held a
defendant who does this cannot raise or elaborate the inef-
fective-assistance claim on collateral attack, as Timberlake
attempted to do. Sawyer was issued on May 16, 1997, a
little more than six months after the oral argument of
Timberlake’s direct appeal, but with seven months still to
go before the Supreme Court of Indiana issued its decision.
That left Timberlake’s lawyer ample time to learn about
Sawyer and withdraw the ineffective-assistance argument
in order to preserve the opportunity to make it on collateral
attack with a better record.
  It is an interesting question whether the appellate brief,
the oral argument, or the date of decision on the direct ap-
peal is the time of the act said to constitute the procedural
default. We need not decide whether a state may insist that
appellate counsel monitor post-briefing or post-argument
No. 04-2315                                                 5

decisions, however, because in this court Indiana does not
rely on (or even mention) Sawyer or its sequel Bieghler v.
State, 690 N.E.2d 188 (Ind. 1997) (which like Sawyer was
announced before the resolution of Timberlake’s direct
appeal). Indiana’s procedural-default argument rests en-
tirely on Woods, which for reasons that should be clear does
not answer the question—though the fact that Woods lay in
the future may explain why Timberlake’s appellate counsel
did not react to Sawyer before the Supreme Court of
Indiana issued its initial decision. It is unnecessary to
speculate, given the state’s decision not to rely on Sawyer.
We conclude that neither the competence claim nor any as-
pect of the ineffective-assistance claim has been defaulted;
both are open to decision on the merits under §2254.
  The argument about competence to stand trial rests on
Drope v. Missouri, 420 U.S. 162 (1975), and Pate v. Robin-
son, 383 U.S. 375 (1966), which hold that the due process
clause requires the trial judge to inquire sua sponte into a
defendant’s mental state, if events in court imply that the
accused may be unable to appreciate the nature of the
charges or assist his counsel in presenting a defense.
Timberlake’s current lawyers contend that a series of what
they call “erratic and irrational” acts should have put the
trial judge on the alert. Here is a recap from Timberlake’s
brief:
    Before trial, Timberlake repeatedly expressed an ir-
    rational distrust for his attorneys, other members of
    the defense team, and the trial judge. At a pretrial
    conference he accused the Judge of refusing to
    approve funds for defense investigators when, in
    fact, the judge had approved funds. He told the
    judge he believed defense investigators were being
    paid for doing investigative work they had not
    performed. He insisted to the judge that the defense
    paralegal and law student assisting in the mitiga-
    tion investigation should be fired because they also
6                                                No. 04-2315

    worked for one [of] his former court-appointed
    attorneys . . . . Timberlake told the judge the first
    attorney appointed to represent him had “denied
    [him] every due process right . . . in the book”. This
    paranoid belief was based solely on the attorney’s
    former employment as a police officer.
Comments along these lines do not show either inability to
comprehend the proceedings or inability to assist in the de-
fense. They show instead a distrust of the criminal justice
system—which from Timberlake’s perspective may have
been warranted by the considerable number of convictions
on his record—plus the usual confusion about just which
defense motions had been granted. Comments similar to
those Timberlake made are common, sometimes because of
suspiciousness and sometimes just because the accused is
trying to throw a monkey wrench into the proceedings.
Many defendants express dissatisfaction with counsel,
assert that their rights have been denied at every turn (be-
cause they have an unreasonable view of what rights they
possess), demonstrate that they do not understand how the
legal system handles witnesses and investigators (that’s why
they need lawyers, after all), and forget or choose to ignore
what judges said earlier. See, e.g., Matheny v. Anderson, 377
F.3d 740, 748-49 (7th Cir. 2004); United States v. James, 328
F.3d 953 (7th Cir. 2003). Many defendants even dismiss their
lawyers because they suppose without justification that more
should be done to assist them. See, e.g., United States v.
Hill, 252 F.3d 919 (7th Cir. 2001). Timberlake’s remarks do
not imply the kind of mental shortcomings that led to Pate
and Drope.
  Defense counsel did not overlook the possibility that
Timberlake’s remarks showed more than the ordinary dis-
gruntlement of a distrustful accused. They twice arranged
for Timberlake to be examined by mental-health specialists.
Each time the conclusion was that Timberlake was sane
and competent. In the collateral proceedings Timberlake’s
No. 04-2315                                                 7

new lawyers insisted that this was not enough, because the
focus of these exams was his mental state at the time of the
crime and during pretrial proceedings; perhaps he had de-
teriorated by the time of trial. So the judge who conducted
the post-trial proceedings had Timberlake examined again
and held a hearing at which two psychiatrists testified. The
judge found that Timberlake had been competent before,
during, and after his trial; the Supreme Court of Indiana
concluded “that the postconviction court’s ruling on
Timberlake’s competency is supported by this record . . . . It
seems clear that Timberlake was able to understand the
nature of the proceedings against him.” 753 N.E.2d at 601.
Timberlake does not contend that this finding is vulnerable
under the criteria used on federal collateral review. See 28
U.S.C. §2254(d)(2), (e)(1). Instead he contends that it
reflects only the medical findings after trial. There was no
mental-health inquiry right at the time of trial, and, as
Drope emphasizes, a post-conviction inquiry may come too
late to be accurate.
  What we have here, however, is mental examinations
before and after trial. For Timberlake to have been incom-
petent at trial, his condition would have had to deteriorate
after the first two mental exams, then improve after trial.
His counsel in the federal proceedings do not identify any
mental disease or defect that would display such a pattern.
Persons with mild paranoia have better and worse days, to
be sure; many other mental conditions also entail variabil-
ity. But short-term variability cannot be guarded against
even by a mental exam close to trial. Had the state judge
sent Timberlake to be examined, there would have been
some gap—perhaps two weeks, perhaps six—between the
examination and the trial, with a competence hearing and
other pretrial proceedings intervening. Then Timberlake
doubtless would be making the same argument—that the
mental examination did not establish his status while the
trial was ongoing. That’s an impossible goal, one that neither
8                                                No. 04-2315

Pate nor Drope (nor any other decision) attributes to the due
process clause. We know from examinations both before and
after trial that Timberlake was generally competent from
1994 through 2000, and his behavior in court did not imply
a dramatic yet temporary deterioration in ability to under-
stand the proceedings and assist his lawyers.
  Let us turn, then, to the ineffective-assistance contention.
Prejudice is an essential ingredient of this theory, see
Strickland v. Washington, 466 U.S. 668, 694 (1984), and in
an alternative holding the Supreme Court of Indiana found
that Timberlake had not established prejudice. 753 N.E.2d
at 609-10. That finding does not contradict any authoritative
federal rule, so the statutory question becomes whether it is
“an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States”. 28 U.S.C. §2254(d)(1). See, e.g., Brown v. Payton,
125 S. Ct. 1432 (2005).
  Timberlake’s principal complaint about his attorneys’ per-
formance is that they did not present any mitigating evi-
dence at the penalty phase of the proceeding. Timberlake
was himself unavailable: he told the judge that he preferred
not to attend and formally waived his right to be present.
690 N.E.2d at 260. This is one of several ways in which
Timberlake proved to be his own worst enemy. Without a
client to testify (or even to point to in an effort to make him
seem less evil), counsel were in difficulty. They chose not to
present evidence; instead they “pleaded for mercy, argued
against the death penalty, and informed the jury that
[Timberlake] would die in jail anyway.” Id. at 261. The
Supreme Court of Indiana concluded on direct appeal that
this was neither deficient nor prejudicial:
    Given that defense counsel had an unsympathetic
    and apparently uncooperative defendant with a
    criminal history that spans three decades, they may
    have reasonably concluded that to argue any miti-
No. 04-2315                                                9

    gation evidence would be ineffective and would
    open the door to damaging rebuttal.
Ibid. See also Bell v. Cone, 535 U.S. 685 (2002), which re-
jects an ineffective-assistance claim when defense not only
omitted mitigating evidence at the penalty phase of a capi-
tal prosecution but also did not present any argument on
the accused’s behalf. On collateral review Timberlake’s new
legal team attempted to bolster its position by contending
that former counsel had neglected to subpoena any wit-
nesses. This omission left them with no evidence and
prevented them from making a reasonable strategic choice,
new counsel insisted. A lengthy evidentiary hearing ex-
plored these issues, and the judge found that counsel had
made permissible choices among unattractive options—for
the witnesses they might have subpoenaed, all from
Timberlake’s family, were unwilling to testify voluntarily on
his behalf.
   Coerced testimony dragged out of truculent family mem-
bers is unlikely to persuade a jury that a defendant has
redeeming features. In the end, as we have mentioned, the
Supreme Court of Indiana concluded that the choice counsel
made—to present argument about the merit of capital
punishment for Timberlake, rather than evidence about his
life history—could not have been prejudicial. The record
compiled in the collateral proceedings demonstrated that
counsel had done a good deal of groundwork for the penalty
proceedings. Among other steps, they had engaged a
mitigation specialist who compiled a 60-page report. This
showed that both of Timberlake’s parents were alcoholics
who alternated between cruelty and indifference toward him
and his siblings. He was poorly educated, fell into crime in
adolescence, and spent his rare days of freedom drinking and
committing new crimes. He has no redeeming character
traits. Timberlake’s parents gave him a ghastly upbringing,
but presenting this evidence would have been risky— and
not just because counsel could not find a family member
10                                              No. 04-2315

who would relate it voluntarily. (Timberlake’s relatives
apparently do not care whether he lives or dies, and there is
a suggestion in the report that some, including his mother,
would prefer him dead.) The major problem is that the evi-
dence would depict him as unsocialized and undeterrable,
while opening the door to evidence by the prosecution
emphasizing his violent tendencies and long criminal history.
Although this evidence might persuade a juror that he was
so much a victim himself that he should not be blamed,
it might also imply that he poses a substantial and irre-
ducible risk of violence to anyone in his vicinity (even in
prison) as long as he remains alive. Which way the balance
would fall is hard to predict, so sensible lawyers could well
decide to omit this evidence and concentrate on finding a
juror who thought capital punishment problematic compared
with life imprisonment without possibility of parole. In
addition to Bell v. Cone see, e.g., Burger v. Kemp, 483 U.S.
776, 793-94 (1987); Britz v. Cowan, 192 F.3d 1101, 1104
(7th Cir. 1999); Stewart v. Gramley, 74 F.3d 132, 136-37
(7th Cir. 1996).
   Timberlake’s theme in this court is: “But they didn’t sub-
poena the family members, so when the penalty phase ar-
rived they had no other option.” But why subpoena witnesses
you have decided not to use? There is no constitutional
obligation to issue pointless legal process. Counsel did not
testify that they wanted to present Timberlake’s mother but
forgot to hale her into court. In testimony that appears to
have been designed to be as useful as possible to their
client, without overstepping legal and ethical bounds, former
defense counsel instead testified only that they did not sub-
poena any witnesses—carefully omitting mention of their
reasons, which Timberlake’s new lawyers discreetly elected
not to inquire into. The Supreme Court of Indiana did not
act unreasonably in concluding that the omission was non-
prejudicial. The court remarked on the weakness of the
potential testimony compared with the strong aggravating
No. 04-2315                                                11

circumstance (an unprovoked and apparently senseless
murder of a police officer), and it observed that counsel pur-
sued a line of argument that might do better than reliance
on uncooperative family members.
  Counsel had a hard choice to make. Whether the choice
was right or wrong does not matter; the Constitution does
not guarantee against strategic misjudgments. It is enough
that the choice was informed and the risk of prejudice from
any error small. The Supreme Court of Indiana did not act
unreasonably in coming to this conclusion.
  Timberlake’s other disagreements with his former lawyers’
performance have been considered but do not require
discussion beyond the observation that the state judiciary’s
handling of these specifications, too, was not unreasonable.
                                                   AFFIRMED

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-27-05
