In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1156

SCOTT J. REVER,

Petitioner-Appellant,

v.

GERARDO ACEVEDO, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07 CV1265—Michael M. Mihm, Judge.

ARGUED AUGUST 4, 2009—DECIDED JANUARY 4, 2010

Before FLAUM, KANNE, and WOOD, Circuit Judges.

PER CURIAM. Scott Rever, an Illinois inmate, appeals

from the denial of his petition for a writ of habeas corpus. After he was charged with 15 counts related to

the kidnap and rape of his ex-girlfriend, Rever was

twice found unfit for trial—the second finding came

after a suicide attempt—and remanded to a state-run

facility for treatment. When officials at the facility issued

a report finding him competent to stand trial, his lawyer
2 No. 09-1156

stipulated to his competence despite the lawyer’s

professed failure to understand the report. The court

accepted the stipulation and Rever went to trial without a

fitness hearing. He was convicted on 11 of the 15 counts

and sentenced to 33 years. In an unsuccessful appeal,

Rever’s counsel did not mention the lack of a fitness

hearing. In post-conviction proceedings, the trial court

acknowledged that it should have held a full hearing

on Rever’s fitness despite counsel’s stipulation, but found

that counsel’s failure to pursue the issue was not prejudicial. After the appellate court affirmed and the state

supreme court denied his petition for leave to appeal,

Rever filed his federal petition, which the district court

denied. We affirm because Rever failed to rebut the

state trial court’s factual finding that he presented insufficient evidence to show that appellate counsel’s conduct

prejudiced him.

I. BACKGROUND

On April 29, 1999, Rever’s ex-girlfriend and her current

boyfriend heard a window break in her apartment. They

went outside and saw Rever. After a struggle, Rever

grabbed his ex-girlfriend and dragged her, at knifepoint,

to his car. He drove to a rural area where he beat his exgirlfriend, tore off her clothing, and raped her. Rever was

charged with fifteen counts, including two counts of

aggravated kidnapping, seven counts of aggravated

criminal sexual assault, and three counts of aggravated

battery.

Before Rever could be tried, Dr. Robert Chapman, a

forensic psychiatrist, examined him and concluded that
No. 09-1156 3

he suffered severe and possibly suicidal depression that

made him incompetent to stand trial. Dr. Chapman also

concluded that with psychiatric treatment and antidepressant medication, Rever could become competent within

one year. Based on Dr. Chapman’s report, the court

found Rever unfit to stand trial and remanded him to the

McLean County Department of Mental Health for “treatment and restoration to fitness.” Three months later, the

court held a follow-up hearing on Rever’s fitness. The

Department of Mental Health had filed a report stating

that Rever was fit. After counsel stipulated to the

report and waived a further hearing, the court found

Rever fit to stand trial.

The court’s finding that Rever was fit to stand trial was

called into question about one month later when Rever

attempted suicide. Dr. Chapman examined Rever again

and reached a conclusion similar to his earlier one. According to Dr. Chapman, Rever continued to suffer profound and prolonged depression with “substantial hopelessness and suicidal risk,” which made him unable to

assist with his defense. Dr. Chapman added, again, that a

successful course of antidepressants could make Rever

fit to stand trial. Based on Dr. Chapman’s report, the trial

court again found Rever unfit to stand trial and again

remanded him to the McLean County Department of

Mental Health for treatment.

Three months after the court found Rever unfit for

the second time, a doctor and an administrator at the

Department of Mental Health prepared a progress report

stating that Rever had been restored to fitness. The trial
4 No. 09-1156

court held another hearing at which Rever’s counsel

stipulated to the progress report even though it contained what he believed was an inconsistency: it concluded that Rever was both fit for trial and still in need of

inpatient care. Counsel told the court, “I’m going to

stipulate to it because it seems to be contradictory in

terms but not being a psychiatrist, I don’t presume to

interpret.” When the judge followed up on the seeming

inconsistency, asking counsel what the report meant

when it said Rever was in need of inpatient care, counsel

answered, “I have no clue.” Counsel repeated his statement that he had “no clue” about what he took to be an

inconsistency in the report, but he did not waver in

his desire to stipulate to the report. Based on counsel’s

stipulation to the report, the judge found Rever fit to

stand trial.

At the hearing, counsel also told the judge that since the

report had been prepared, Rever’s psychiatrist at the

Department of Mental Health had raised Rever’s daily

dosage of Effexor, a common antidepressant, from 75 mg

to 225 mg. Counsel asked for an order that would require

the jail to comply with the change. Counsel also told the

court he was going to have Dr. Chapman examine

Rever again to determine the effect of the increased

dosage, but that examination never took place.

After the jury found Rever guilty on 11 of the 15 counts,

Rever saw Dr. Chapman again in preparation for sentencing. In his report, Dr. Chapman did not opine on

Rever’s fitness to stand trial or to be sentenced, but he did

diagnose Rever as suffering from bipolar disorder.
No. 09-1156 5

Dr. Chapman testified as a mitigation witness at sentencing, but did not opine on Rever’s fitness. The

court sentenced Rever to 33 years in prison.

In his direct appeal, Rever did not discuss his fitness to

stand trial. The appellate court affirmed and also

did not mention the issue. After the Illinois Supreme

Court denied his petition for leave to appeal, Rever

sought post-conviction relief in the trial court. In his

petition, Rever argued that his trial counsel was ineffective for allowing him to be tried without a full fitness

hearing and that appellate counsel was ineffective for

failing to raise the issue on appeal. The trial court

found that Rever’s petition stated the gist of a constitutional claim, so the court appointed counsel and held a

hearing. At the hearing, Dr. Chapman testified that the

seemingly contradictory findings in the progress report

were not necessarily inconsistent: a defendant could be

both fit to stand trial and in need of inpatient treatment.

Dr. Chapman also explained that he had not formed an

opinion on Rever’s fitness to stand trial at the time of the

agency report and that he was not prepared to do so

retrospectively. On the other hand, though, Dr. Chapman

explained that he or another medical professional

could formulate such an opinion retrospectively.

After hearing argument on the petition, the judge, who

had also overseen the criminal trial, acknowledged that

he had “made an error by not having a restoration of

fitness hearing.” Nevertheless, he denied Rever’s petition,

stating that “there is no evidence” that Rever was unfit

at the time of trial. Moreover, the judge noted that Rever’s
6 No. 09-1156

conduct during trial demonstrated his fitness. Accordingly,

the trial court found that neither trial counsel’s failure

to demand a hearing nor appellate counsel’s failure to

raise the issue constituted ineffective assistance.

Rever appealed, arguing only that his appellate

counsel was ineffective for failing to raise competence.

The Illinois Appellate Court affirmed the trial court’s

ruling but on slightly different grounds. First, the court

held that the trial court did not err by accepting

counsel’s stipulation to Rever’s fitness, so appellate counsel’s failure to raise the issue was not objectively unreasonable. Under Illinois law, a fitness finding cannot be

based on a stipulation to the existence of a psychiatric

conclusion, the court explained, but the stipulation in

this case was to a report that the trial court had read and

discussed with counsel. In addition, the court had observed the defendant before accepting the stipulation. On

the second prong of the test for ineffective assistance,

the appellate court held that Rever could not show prejudice because the trial court had properly found both

before trial and during the post-conviction proceedings

that he was fit for trial. The Illinois Supreme Court denied

Rever’s petition for leave to appeal.

Rever then filed a petition for a writ of habeas corpus in

federal court. He argued again that trial counsel was

ineffective for failing to seek a fitness hearing before trial

and that appellate counsel was ineffective for failing to

raise the issue. The district court ordered the state to

respond, held a hearing by telephone, and denied the

petition because Rever had failed to present substantial
No. 09-1156 7

facts that would show he was unfit to stand trial. The

court acknowledged that trial counsel may have erred,

but ruled that Rever had not shown that any error was

prejudicial because he had failed to present evidence

showing that he was unfit to stand trial. The court went

on to deny Rever’s alternative request for an evidentiary

hearing on his fitness because Rever did not satisfy

the requirements of 28 U.S.C. § 2254(I). But the district

court did grant Rever a certificate of appealability on

two issues:

(1) Whether petitioner sufficiently demonstrated

a real and substantial doubt as to his fitness to

stand trial, which would then shift the burden to

the State to demonstrate that he was in fact fit at

the time of trial; and

(2) Whether, if petitioner did not sufficiently

demonstrate such doubt, this Court erred in denying him an evidentiary hearing at which he

might establish this doubt, in light of the Section

2254 standard, whereby the effectiveness or incompetence of counsel during Federal or State collateral post conviction proceedings are not grounds

for relief.

(Id. at 19.)

II. ANALYSIS

On appeal, both parties direct their efforts to the

issues on which the district court granted the certificate

of appealability. That is unfortunate because the district
8 No. 09-1156

court identified the wrong issues. Rever argued in his

petition that his trial counsel was ineffective for going

to trial without a fitness hearing and that appellate

counsel was also ineffective for failing to raise the issue. (The first argument was not presented to the Illinois

Appellate Court and is, therefore, procedurally defaulted.

See Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009).)

Rather than examining the state courts’ analysis of

Rever’s claims of ineffective assistance, the district court

applied pre-AEDPA law to assess Rever’s underlying

fitness claim. Specifically, the district court applied Lewis

v. Lane, 822 F.2d 703 (7th Cir. 1987), which adopted a

burden shifting approach to fitness claims presented in

federal habeas: once the petitioner presents substantial

facts supporting his allegation of incompetency, the

burden shifts to the state to show that the petitioner was

in fact competent to stand trial. Id. at 706-07. But under

AEDPA, federal courts do not independently analyze

the petitioner’s claims; federal courts are limited to reviewing the relevant state court ruling on the claims. See

Dunlap v. Hepp, 436 F.3d 739, 744 (7th Cir. 2006) (citing

Williams v. Taylor, 529 U.S. 362 (2000)). The independent

review applied in Lewis did not survive AEDPA. See

Sturgeon v. Chandler, 552 F.3d 604, 612 (7th Cir. 2009)

(reviewing state court determination of competency);

Woods v. McBride, 430 F.3d 813, 820 (7th Cir. 2005) (same).

Thus, the district court should have limited its review to

the rulings of the Illinois courts that considered Rever’s

arguments.

Although Rever casts his arguments in the wrong

direction, they are easily recast as challenging the state
No. 09-1156 9

court proceedings. At bottom, Rever’s argument is that

the state courts violated his constitutional right to a

reasonable opportunity to demonstrate that he was unfit

to be tried. See Medina v. California, 505 U.S. 437, 451 (1992);

Drope v. Missouri, 420 U.S. 162, 180 (1975); Woods, 430 F.3d

at 819. Illinois implements that right by statute: once a

defendant presents a “bona fide doubt” about his

fitness, the burden shifts to the state to prove fitness by a

preponderance of evidence. 725 ILCS 5/104-11; see also

Sturgeon, 552 F.3d at 610 (“[S]ection 104-11 protects a

constitutional right.”). That standard also applies to postconviction claims, see People v. Shum, 797 N.E.2d 609, 616

(Ill. 2003), and the trial court applied it when the court

denied Rever’s request for post-conviction relief based

on its finding that “[t]here is no evidence that [Rever] was

unfit when trial commenced.” In other words, the trial

court found that, in the retrospective hearing, Rever

failed to submit evidence showing a bona fide doubt as

to his fitness, so a full retrospective hearing on his

fitness before trial was not necessary.

The Illinois Appellate Court seems to have considered the trial court’s finding to be an explicit fitness

determination, and Rever attacks the appellate court’s

ruling on that basis. Despite our doubts about that

portion of the appellate court’s ruling, we need not

delve into it because, while our review adjudication in

state court is limited to the last decision to address the

arguments on the merits, see Smiley v. Thurmer, 542

F.3d 574, 580 (7th Cir. 2008), our deference to factual

findings in state court, see 28 U.S.C. § 2254(e)(1), is not so

limited. Section 2254(e)(1)’s text makes that clear: “a
10 No. 09-1156

determination of a factual issue made by a State court shall

be presumed to be correct.” Id. (emphasis added); see

Hannon v. Sec’y, Dep’t of Corr., 562 F.3d 1146, 1150 (11th Cir.

2009); see also Sumner v. Mata, 449 U.S. 539, 547 (1981) (preAEDPA). And that deference to state courts’ factual

findings applies even when we refuse to defer to the state

courts’ legal adjudication. See Brown v. Smith, 551 F.3d 424,

431 (6th Cir. 2008); Hodges v. Attorney Gen., State of Fla., 506

F.3d 1337, 1348 (11th Cir. 2007); Jacobs v. Horn, 395 F.3d 92,

100 (3d Cir. 2005). Thus, even if Rever can overcome our

AEDPA deference to the appellate court’s adjudication of

his claim, we still presume to be correct the trial court’s

finding that he did not present sufficient evidence at the

retrospective hearing to raise a bona fide doubt as to his

competence and, therefore, failed to show that he was

prejudiced by appellate counsel’s conduct. See People v.

Harris, 794 N.E.2d 181, 189-90 (Ill. 2002); People v.

Pitsonbarger, 793 N.E.2d 609, 628-30 (Ill. 2002).

Rever attacks that finding on two fronts, but both

attacks fail. First, he points to the report by the Department of Mental Health—the only evidence that he was fit

to stand trial. According to Rever, the report contains

“innumerable problems,” but he enumerates only two.

The first is the seeming inconsistency between the

report’s conclusion that Rever was fit for trial but also

in need of inpatient care. But Rever’s own expert

explained in the post-conviction proceedings that these

two findings were not necessarily inconsistent. The

second purported problem is the report’s explanation

that Rever did not “fully understand that facing his

charges and resolving his legal problems is the best way to
No. 09-1156 11

diminish his depressive feelings,” but Rever does not

explain how that statement might be inconsistent with a

finding of competency. In fact, the statement is not

about fitness to stand trial; it is about treating Rever’s

depression, and not every mental illness demonstrates

incompetence to stand trial. See Eddmonds v. Peters, 93

F.3d 1307, 1314 (7th Cir. 1996).

Rever’s second argument against the state court’s

finding that he failed to present enough evidence to call

his competency into question relies on the sharp increase

in his medication shortly before trial. In Burt v. Uchtman,

422 F.3d 557 (7th Cir. 2005), this court held that the

trial court should have conducted a competency hearing

based in part on the petitioner’s “heavy and ever-changing

doses of psychotropic medication.” Id. at 565-66. But in

Burt, there was other evidence suggesting incompetence—most importantly, on the fourth day of trial, the

petitioner suddenly decided to plead guilty against counsel’s advice. By contrast, Rever’s conduct during trial did

nothing to call his competence into question. The increase

in the dosage of Rever’s medication, on its own, is not

sufficient evidence to rebut the state court’s finding.

Rever had the opportunity during the state post-conviction proceedings to present medical evidence challenging

the report that found him fit. And had he presented

sufficient evidence, he would have shifted the burden to

the state to prove his fitness. Rever could have presented

evidence on the dosage increase or anything else, but he

did not do so, and his attempt to submit that evidence

in federal habeas review comes too late. Rever’s argu-
12 No. 09-1156

ment that the district court erred in denying him a

hearing to present more evidence under 28 U.S.C.

§ 2254(e)(2) is meritless because he concedes that he

cannot satisfy any of that provision’s exceptions. Rever

has failed to show the clear and convincing evidence

necessary to rebut the state trial court’s finding on the

evidence he presented in the retrospective hearing. 28

U.S.C. § 2254(e)(1). Accordingly, we must defer to that

finding and hold that Rever did not present sufficient

evidence to show prejudice from appellate counsel’s

failure to raise the issue of competence.

III. CONCLUSION

Accordingly, we AFFIRM the district court’s denial of

Rever’s petition.

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