In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1250

Robert Todd, 

Petitioner-Appellant,

v.

James Schomig, Warden, Pontiac Correctional

Center, 

Respondent-Appellee.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 98-428-GPM--G. Patrick Murphy, Chief Judge.

Argued October 9, 2001--Decided March 14, 2002

 Before Flaum, Chief Judge, and Evans, and

Williams, Circuit Judges.

 Williams, Circuit Judge. Petitioner

Robert Todd is on death row. The direct

and post-conviction challenges to his

conviction and death sentence have proven

unsuccessful. He filed a petition for a

writ of habeas corpus, which the district

court denied. Now, he appeals and asks us

to reverse the district court’s decision.

Because there is no basis upon which to

grant his petition, we affirm the

judgment of the district court.

I. BACKGROUND

 On June 1, 1998, Todd filed a petition

for a writ of habeas corpus, challenging

the constitutionality of his custody in

the Pontiac Correctional Center, where he

is on death row for his state court

conviction of first-degree murder. Our

review of his challenge to his conviction

and death sentence is controlled by the

restrictive standards set forth in the

Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"). See 28 U.S.C. sec.

2254; see also Lindh v. Murphy, 521 U.S.

320 (1997) (applying the statute to

petitions filed after April 24, 1996).

Pursuant to the AEDPA, state court

factual findings that are reasonably

based on the record are presumed correct,
and the petitioner has the burden of

rebutting that presumption by clear and

convincing evidence. See 28 U.S.C. sec.

2254(e)(1); see also Cossel v. Miller,

229 F.3d 649, 651 (7th Cir. 2000). The

following summary of the facts is derived

from the state court opinions, and is

supplemented where appropriate from the

appellate record. See Whitehead v. Cowan,

263 F.3d 708 (7th Cir. 2001).

A. The Facts

 On July 11, 1989, Sandra Shelton entered

the Sports Page Bar & Grill in Carlyle,

Illinois. Shortly thereafter, Robert Todd

entered the bar, sat next to her, ordered

a draft beer, and started a conversation.

They left together at approximately halfpast midnight and went to the Main Street

Saloon in Beckemeyer, where they danced,

had a couple drinks, and left.

 They then went to Shelton’s home.

According to the testimony of jailhouse

informant, Scott Nielson, Todd described

the events at Shelton’s home as follows:

Shelton put on a Bob Seger tape, and they

sat and drank. Todd tried to "make moves"

on Shelton, but she resisted. A bit

later, Todd tried again, but Shelton told

him "no" and shoved him. Todd slapped

Shelton a couple times, but he then

blacked out and next remembered waking up

in the morning at a convenience store.

 Shelton’s 14-year-old daughter

discovered her mother’s body at eleven

the next morning. In the home, the stove

burners were running, creating a strong

odor of natural gas; several candles were

still burning; and a container of

vegetable oil was on the floor in the

living room. 

 Shelton’s body was nude except for a

green blouse tied around her neck,

intertwined with a necklace and two shoe

strings that were tied to her right

wrist. Shelton’s body appeared to have a

shiny, oily substance on it, and small

red droplets of wax were spread over her

body from the shoulders down.

 A red candle and a Miller Lite beer can

were underneath a blanket that partially

covered Shelton’s left foot. Another can

of Miller Lite was on an ashtray table,

and a six-pack of Miller Lite with two

cans missing was in the refrigerator./1
 Pathologist Dr. Steven Nuernberger

performed an autopsy and found a linear

depression on Shelton’s neck, where the

blouse had been. He noticed hemorrhaging

to the muscles on both sides of the neck,

indicating that Shelton’s trachea had

been crushed. He listed strangulation as

the primary cause of death. 

 He noticed five stab wounds down the

left side of Shelton’s body. Four

penetrated her chest wall. There was a

small amount of blood in Shelton’s chest

cavity and abdomen, which indicated that

she was stabbed at the time of her death

or shortly thereafter. In his opinion,

the stab wounds were caused by a sharp

knife, and were to "mak[e] sure the

victim was dead."

 He also observed bruising and swelling

around Shelton’s left eye, left lower

lip, and cheek bone. He noted hemorrhages

that indicated blunt trauma to her head.

In his opinion, the head injuries were

caused by at least five separate blows to

her head. Dr. Nuernberger observed

bruises or contusions on Shelton’s wrist,

right shoulder and breast. The wrist

bruise was consistent with someone

tightly grabbing the wrist, and the chest

bruise indicated a blow to the chest.

 Dr. Nuernberger believed that Shelton

was standing when she was suffocated. He

also believed that the wax droplets were

applied after death. Although Dr.

Nuernberger found no identifiable

presence of sperm and no evidence of

trauma to the vagina or rectum, in his

opinion, these facts did not rule out the

possibility of sexual assault.

 Forensic scientist David Peck examined

the tennis shoes Todd was wearing at the

time of his arrest with the shoe prints

collected at Shelton’s home. He concluded

that two prints were made by Todd’s left

shoe and one was made by his right shoe.

He also compared inked bare footprints of

Todd’s feet with footprints at Shelton’s

home, concluding that one of the latent

footprints at Shelton’s home was Todd’s.

He also concluded that Todd’s fingerprint

was present on one of the doorknobs in

Shelton’s home.

 Forensic scientist Cheryl Cherry

compared the wax droplets on Shelton’s
body with wax droplets from Todd’s

bathtub, and she concluded that they were

similar and could have originated from

the same candle. Forensic microscopist

Eleanor Gillespie compared the standards

of Todd’s hair to the hairs from

Shelton’s body, and she concluded that

there was no hair transfer between Todd

and Shelton.

 After a bench trial, Todd was convicted

of first-degree murder and attempted

aggravated sexual assault. The trial

court concluded that the murder was

accompanied by brutal and heinous

behavior indicative of wanton cruelty. At

the first stage of the sentencing, the

sentencing court found Todd eligible for

the death penalty because the murder was

committed in the course of a robbery and

while attempting to commit aggravated

criminal sexual assault.

 At the second stage of the sentencing,

the state presented its case in favor of

the imposition of the death penalty.

Joyce Ely testified that Todd had worked

for a facility for the mentally retarded,

but was fired for two incidents with

patients--one in which he put a yelling

and aggressive patient in an arm-lock and

another in which he attempted to prevent

an upset patient from leaving the area by

pushing him back with his fingers. Todd’s

ex-wife, Shelly Steele, testified that he

had a bad temper and was occasionally

physically violent. She also testified

that he liked to tie her up during sex,

enjoyed having pain inflicted on himself

during sex, and always had candles or

incense burning during sex. She also

testified that she was fired from her job

because Todd showed up, started an

argument with her, and threatened to kill

another employee if he did not get out of

his way. 

 Then Todd presented mitigation evidence.

Mitigation Social Worker Arlene Peters

recounted Todd’s background, including

his alcoholism, drug use, suicide

attempts, physical abuse, and troubled

childhood. Her investigation, however,

was limited--principally to Todd’s

immediate family. Todd’s reverend,

fiancee’s parents, and family also

testified, essentially to his good

character, and helped to corroborate the

mitigation social worker’s report. 
 The sentencing court determined that

only one statutory mitigating factor had

been presented--lack of significant prior

criminal history--in addition to evidence

of nonstatutory mitigating factors. The

court determined that the aggravating

factors outweighed the mitigating factors

and sentenced Todd to death.

B. District Court Proceeding

 Following unsuccessful direct appeals

and post-conviction proceedings, see

People v. Todd, 607 N.E.2d 1189 (Ill.

1992); Todd v. Illinois, 510 U.S. 944

(1993) (direct); People v. Todd, 687

N.E.2d 998 (Ill. 1997); Todd v. Illinois,

525 U.S. 828 (1998) (post-conviction),

Todd filed a petition for a writ of

habeas corpus in the United States

District Court for the Southern District

of Illinois. He raised approximately

twenty-six grounds for relief, not

counting the various separate factual

allegations that supported his primary

arguments. In an extensive and wellreasoned opinion, the district court

rejected all of Todd’s reasons for

granting a writ and denied his petition.

Todd now appeals.

II. ANALYSIS

 A writ of habeas corpus may be granted

only if the state court’s adjudication of

the claim (1) resulted in a decision that

was contrary to, or involved an

unreasonable application of, clearly

established Federal law, as determined by

the Supreme Court of the United States;

or (2) resulted in a decision that was

based on an unreasonable determination of

the facts in light of the evidence

presented in the State court proceeding.

See id. at sec. 2254(d); see also

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

Boss v. Pierce, 263 F.3d 734 (7th Cir.

2001). While we carefully scrutinize the

issues presented in capital cases, see

Zant v. Stephens, 462 U.S. 862, 884

(1983), as in all cases, our review of

issues of law is de novo and of fact, for

clear error. See, e.g., Dixon v. Snyder,

266 F.3d 693, 700 (7th Cir. 2001). 

A. Procedural Default

 To begin, we must determine which of

Todd’s claims are properly before this

court. In order to raise a constitutional

challenge to a state court conviction and
sentence in a federal habeas proceeding,

the petitioner must have fully and

adequately presented the challenge to the

state courts. See O’Sullivan v. Boerckel,

526 U.S. 838, 844 (1999); Chambers v.

McCaughtry, 264 F.3d 732, 737-38 (7th

Cir. 2001). 

 Many of Todd’s claims were not raised in

his direct or post-conviction proceedings

before the state courts, and therefore

are defaulted./2 Procedural default may

be excused for cause and prejudice or if

it will result in a fundamental

miscarriage of justice, see Coleman v.

Thompson, 501 U.S. 722, 750 (1991);

Wainwright v. Sykes, 433 U.S. 72, 87

(1977), but Todd has not argued that any

of these reasons prevented him from

raising his claims in the state courts.

Therefore, we do not consider his

defaulted claims.

B. Brady Violation

 Todd argues that the state suppressed

material impeachment evidence of an

agreement with jailhouse informant

Nielson in exchange for his testimony at

trial. He argues that Nielson’s testimony

regarding what happened at Shelton’s home

was "the lynchpin of the State’s case."

Therefore, he argues, the state violated

the Fourteenth Amendment by suppressing

the agreement. See Brady v. Maryland, 373

U.S. 83 (1963). We reject this claim on

the merits, rather than addressing the

somewhat more difficult question of

whether it is procedurally defaulted. See

28 U.S.C. sec. 2254(b)(2).

 Todd cannot prove an agreement existed.

He argues that at the very least Nielson

had an "expectation" of benefit. But what

one party might expect from another does

not amount to an agreement between them.

And Todd does not argue that the state

knew of Nielson’s expectation or that he

could not have uncovered that expectation

with reasonable diligence. This brings us

back to the agreement, which Todd cannot

show existed. Without an agreement, no

evidence was suppressed, and the state’s

conduct, not disclosing something it did

not have, cannot be considered a Brady

violation.

 But Todd claims that he should have been

granted a hearing in the district court

to establish evidence of an agreement.

That would have been little help to him
in advancing his claim. Nielson was

hardly the lynchpin that Todd

characterizes him as. Nielson merely told

the court what other evidence had already

revealed. Forensic evidence placed Todd

in Shelton’s home. Autopsy evidence of

Shelton’s body showed the violent and

forceful nature of the murder. And, that

Nielson knew of particular non-public,

corroborated facts (e.g., the Bob Seger

tape)/3 made his testimony more

reliable and the value of any impeachment

evidence minimal.

 The possible existence of an agreement

with this witness does not undermine our

confidence in the conviction. Without any

means of establishing a reasonable

probability of a different outcome, the

evidence cannot be considered material,

or its suppression a Brady violation.

See, e.g., Kyles v. Whitley, 514 U.S.

419, 434 (1995).

C. Unanimous/One-Juror Rule

 The state trial court twice informed

Todd that "all twelve jurors would have

to unanimously agree on [the] mitigating

factors to prevent imposition of the

death penalty." Todd argues that he

waived his right to a jury sentencing

because the court’s statement led him to

believe that it was easier to convince

one judge rather than all twelve jurors

not to impose the death penalty.

Furthermore, he asserts that he was not

informed of Illinois’ "one-juror" rule;

effectively the flip-side of the

requirement of a unanimous verdict, the

one-juror rule is simply that the vote of

one juror may preclude the death penalty.

See, e.g., People v. Nitz, 572 N.E.2d

895, 916 (Ill. App. Ct. 1991). Todd

argues that not knowing of this rule,

combined with the trial court’s false

statement of the standard, made his

waiver of his right to a jury at

sentencing involuntary, violating the

Seventh Amendment.

 Todd’s claim would have significant

force, if it were in fact true. The

record, however, does not bear out his

version of the facts. In a thorough

waiver hearing, the trial court informed

Todd that any statutory eligibility

factor must be unanimous, and that the

vote for the death penalty must be

unanimous. And although Todd was not
informed of the one-juror rule

specifically, he was informed that all

the jurors would have to agree on the

death sentence, which is effectively the

same thing. We reject his argument, and

find that the Illinois Supreme Court’s

rejection of it was reasonable. See Todd,

607 N.E.2d at 1196.

D. Ineffective Assistance of Counsel

 Todd argues that his trial counsel was

constitutionally ineffective because he

failed to (1) investigate adequately,

obtain, or present hair transfer

evidence; (2) file Todd’s request to

withdraw his jury waiver; and (3)

investigate and present additional

mitigation evidence./4 In addition,

healleges that defense counsel pressured

him to waive his right to a jury trial.

All this conduct, he argues, prejudiced

his case and resulted in his conviction

and death sentence, violating the Sixth

Amendment.

 To show ineffective assistance of

counsel, Todd must demonstrate that

counsel’s performance fell below an

objective standard of reasonableness, and

he was prejudiced as a result of that

performance. See Strickland v.

Washington, 466 U.S. 668, 687-90 (1984);

United States v. Hodges, 259 F.3d 655,

658 (7th Cir. 2001). We apply a highly

deferential presumption in favor of the

reasonable exercise of professional

judgment. See Strickland, 466 U.S. at

689.

 The Supreme Court has often stated that

the Constitution does not guarantee

criminal defendants a perfect trial, only

a "fair" one. See Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986). That

statement is apt here. Todd’s counsel was

not perfect, and with the benefit of

hindsight, it is easy to indulge the

temptation to question his decisions

during trial and sentencing. But his

performance was sufficient to ensure a

fair adjudication of Todd’s guilt and

sentence. 

 First, defense counsel elicited

testimony from Illinois State Police

Forensic Scientist Eleanor Gillespie that

none of the hairs found at the scene were

Todd’s and that there was no transfer of

hair between Todd and Shelton. Moreover,
he argued that this evidence was

inconsistent with the type of struggle

the state alleged. He could have done

more, granted. But we do not measure

deficiency by how much more defense

counsel could have done, but by the

adequacy of what counsel did do.

Employing an objective standard of

reasonableness, defense counsel’s

performance in this regard was reasonable

and adequate.

 Second, we have no basis upon which to

conclude that Todd ever asked his defense

counsel to file a motion to withdraw his

jury waiver. In a post-conviction

deposition, his defense counsel denied

any such request. And even extending this

assumption to Todd, we have no basis upon

which to conclude that the trial court

would have allowed Todd to withdraw his

plea. Todd has provided no credible

evidence.

 Third, regarding mitigation evidence,

defense counsel brought forward Todd’s

family,/5 reverend, and a mitigation

social worker. Todd asserts that the

mitigation social worker’s report was not

very thorough, and was largely

unsubstantiated. The report merely

summarized Todd’s life, focusing on his

troubled childhood, suicide attempts,

alcohol and drug abuse, and some physical

abuse he suffered.

 Todd now claims that trial counsel

should have developed and presented

additional mitigation evidence that was

available. At his post-conviction

hearing, Todd brought forward much more

compelling mitigation evidence. For

example, the clinical psychologist who

testified at the post-conviction hearing

conducted a more thorough investigation,

and uncovered additional physical and

sexual abuse. At his post-conviction

hearing Todd introduced expert testimony,

along with additional, substantiated

evidence of low intelligence (an IQ of

86), physical and sexual abuse, and

emotional and psychological damage

(possibly amounting to an additional

statutory mitigating factor). 

 However, at trial, defense counsel

apparently decided not to present

psychiatric evidence or pursue it further

because he believed it would only expose

Todd’s propensity for violence. He based
that decision in part on a psychiatric

evaluation that was performed before

trial. But Todd’s propensity for violence

was already front and center in his

sentencing hearing. His ex-wife testified

about his violent propensities and of her

fear of his violent nature--which

prompted her to acquire a Doberman

Pinscher for her own protection. The

nursing home supervisor testified that

Todd was fired because of his unnecessary

use of force. Furthermore, the trial

court’s conclusion that Shelton’s murder

was accompanied by brutal and heinous

behavior indicative of wanton cruelty

should have put defense counsel on notice

that the cat was out of the bag. 

 While we believe counsel’s performance

was less than stellar, the Illinois

Supreme Court was not persuaded. See

Todd, 687 N.E.2d 998, 1008-11 (Ill.

1997). It believed that Todd’s defense

counsel made a strategic decision after

investigation, to which deference was

due. Also, it did not believe that the

additional mitigation evidence would have

affected the sentencing judge’s decision

to impose the death penalty, given the

circumstances. See id. at 1011. Although

we are less convinced, we cannot say that

the Illinois Supreme Court’s decision was

unreasonable in light of the very damning

aggravating circumstances in this case.

 Finally, we have no basis upon which to

conclude that Todd’s counsel "pressured"

him to waive his right to a jury trial.

Indeed, the credible evidence before us

is solidly to the contrary, that his

waiver was informed, knowing and

voluntary. Most convincingly, the trial

court conducted a thorough hearing on the

waiver, after which it concluded that his

waiver was knowing and voluntary.

 Because we have addressed all of Todd’s

claims of deficient and prejudicial

performance and find them to be

meritless, we reject Todd’s claim of

ineffective assistance of counsel.

Overall, we find reasonable the Illinois

Supreme Court’s decision. See Todd, 687

N.E.2d at 1003-13. 

E. Sufficiency of the Evidence

 Todd argues that the state failed to

prove beyond a reasonable doubt each and

every element of his two statutory

eligibility factors for the death
penalty, violating both the Eighth and

the Fourteenth Amendments./6 See In re

Winship, 397 U.S. 358 (1970); Gregg v.

Georgia, 428 U.S. 153 (1976). Both

arguments are meritless.

 

 1. Robbery

 The state alleged that Todd took

Shelton’s purse. Illinois defines robbery

as the taking of property from the person

or presence of another by the use of

force or by threatening the imminent use

of force. See 720 Ill. Comp. Stat. 5/18-

1(a). If Todd did in fact take Shelton’s

purse, then the conclusion that the

taking was by the use of force and from

her presence follows ineluctably on these

facts. See, e.g., People v. Blake, 579

N.E.2d 861 (Ill. 1991) (upholding armed

robbery conviction, despite the fact that

victims were separated, by one level of

the house, from the property taken and

had not been in contact with those items

for some six or seven hours during the

night); People v. Carreon, 587 N.E.2d 532

(Ill. App. Ct. 1992) (finding that dead

person has "presence"). 

 Todd focuses his argument on the

conclusion that he took the purse. He

challenges the trial court’s resolution

of the question of whether the victim’s

purse was brought inside her home or left

in her car, but does not dispute the

determination that Shelton brought the

purse home. Todd argues that if the purse

was in Shelton’s open car, which he

believes is the only supportable

conclusion, anyone could have taken it.

Why the particular location of the purse

at the home matters at all is not clear

to us, as anyone could have taken it from

her open home as well.

 In either place, however, Todd is the

person most likely to have taken the

purse. Todd was seen with Shelton the

night she had her purse. Todd was in

Shelton’s home that night as well. Todd

murdered Shelton. Then, Shelton’s family

discovered that her purse was missing. It

was found later in a cornfield. Along the

way a number of things could have

happened to the purse, but on these

facts, a rational conclusion beyond a

reasonable doubt is that Todd took the

purse. We therefore reject his argument,

and find the Illinois Supreme Court’s
decision reasonable. See Todd, 607 N.E.2d

at 1196-97.

 2. Attempted Aggravated Criminal Sexual

Assault

 Illinois defines aggravated criminal

sexual assault as (1) the commission of

an act of sexual penetration (a) by the

use of force or threat of force or (b)

with knowledge that the victim was unable

to understand the nature of the act or

was unable to give knowing consent, and

(2) during the commission of the offense,

any one of ten aggravating circumstances

is present, e.g., the defendant

displayed, threatened to use, or used a

dangerous weapon; caused bodily harm to

the victim; threatened or endangered the

life of the victim; or perpetrated the

offense during the course of the

commission or attempted commission of any

other felony. See 720 Ill. Comp. Stat.

5/12-13(a)(1)-(2), 5/12-14(a)(1)-(10). An

attempt is defined as the doing of any

act that constitutes a substantial step

toward the commission of a specific

offense with the intent to commit that

offense. See 720 Ill. Comp. Stat. 5/8-4.

 Todd argues that "[t]here was no

evidence of an aggravator charged or

proved." But, in Count IV of the

indictment against Todd, which alleged

attempted aggravated sexual assault, the

state specifically charged that he

"caused bodily harm to Sandy Shelton by

striking and choking her." As to the

evidence, the violent and statutorily

aggravated nature of this murder is

overwhelming. Indeed, four applicable ag

gravators are present in this case. There

is evidence that Todd used a sharp knife,

which is a dangerous weapon, to stab

Shelton; caused significant bodily harm

to Shelton; endangered Shelton’s life;

and perpetrated the offense during the

course of both a murder and a robbery,

which are both felonies.

 That is all beside the point, however.

Todd’s conviction was for his attempt of

the offense, not for his completion of

it. Therefore, the state was not required

to show any aggravating factor, but only

an act that constituted a substantial

step toward the commission of the offense

and an intent to commit an aggravating

factor (along with the other elements of
the offense). See, e.g., People v.

Childress, 746 N.E.2d 783 (Ill. App. Ct.

2001). Todd’s use of force in this

circumstance could have qualified as a

substantial step, and the state would

have only needed to show intent to commit

the other elements, including an

aggravating factor. We therefore reject

his argument, and find the Illinois

Supreme Court’s decision reasonable. See

Todd, 607 N.E.2d at 1197.

F. Evidentiary Rulings

 Todd makes two constitutional arguments

regarding inadmissible hearsay and

irrelevant evidence, based on the court’s

admission and consideration of that

evidence at sentencing. We reject them

both.

 1. Hearsay

 Todd argues that the sentencing court

admitted hearsay, which violated the

Sixth Amendment. In addition, he argues

that the sentencing court’s reliance on

hearsay evidence introduced intolerable

uncertainty and unreliability into the

sentencing process and violated the

Eighth and Fourteenth Amendments. Joyce

Ely, the individual who testified to

Todd’s termination based on two physical

confrontations involving patients, did

not personally witness his behavior, and

in fact was not employed with the nursing

home at the time of Todd’s termination.

Therefore, her testimony, he argues, was

inadmissable and unreliable hearsay.

 However, sentencing is different from

trial, and the constitutional limitations

placed on the latter do not apply to the

former. Hearsay may be admitted at

sentencing, even in death penalty cases,

without violating the Constitution. See

Roberts v. United States, 445 U.S. 552,

556 (1980); Williams v. New York, 337

U.S. 241, 251 (1949). To implicate

constitutional concerns, the evidence

must amount to "misinformation." See

United States v. Tucker, 404 U.S. 443,

446-47 (1972); Townsend v. Burke, 334

U.S. 736, 740-41 (1948). So long as the

evidence is reliable and the defendant is

provided notice and an opportunity to

challenge its reliability, no

constitutional violation results from the

admission of hearsay at sentencing.
 Todd cannot show any constitutional

infirmity in this case. The witness

testified to statements contained in

Todd’s employment records, which with

marginally additional foundation could

have qualified under the business records

exception to the hearsay rule. Fed. R.

Evid. 803(6). Ely relied on Todd’s

employment records to describe the

incidents that prompted his termination.

But Todd failed to refute her testimony,

and to challenge the veracity of the

records. He only introduced the

possibility of bias in one of his

supervisors. We believe that this

evidence satisfied the requirements of

reliability and procedural due process

and reject his argument, and find that

the Illinois Supreme Court’s decision

reasonable. See Todd, 607 N.E.2d at 1197.

 2. Relevance

 Todd argues that the trial court’s

consideration of his prior sexual conduct

in imposing the death penalty violated

the Eighth Amendment, because these

characteristics made no measurable

contribution to acceptable goals of

punishment--retribution or deterrence.

 Not all evidence of "character"

qualifies as permissible aggravation

evidence to be considered in the balance

for imposing the death penalty. See Zant,

462 U.S. at 885. The Supreme Court has

very clearly stated that aggravation

evidence is of a wholly different

character than mitigation evidence, and

is subject to more restrictive

constitutional limitations. See, e.g.,

McCleskey v. Kemp, 481 U.S. 279, 304

(1987). For example, characteristics such

as race, religion, or political

affiliation are constitutionally

impermissible and totally irrelevant to

the sentencing process and the question

of whether a defendant should receive the

death penalty. See Zant, 462 U.S. at 885.

To be sure, these three particular

characteristics are plainly inimical to

the "individualized" determination upon

which the imposition of the death penalty

must rest.

 But easy examples aside, the Supreme

Court, in Dawson v. Delaware, supra,

carefully examined the type of evidence

that may be properly considered relevant
character evidence. In Dawson, the state

introduced evidence of the defendant’s

membership in the Aryan Brotherhood--a

group that held racist, white-supremacist

beliefs--in Dawson’s death penalty

sentencing hearing. The Supreme Court

held that this evidence, in and of

itself, had no relevance to any issue in

the sentencing hearing. The evidence was

unrelated to the crime, e.g., showing

motive, see Barclay v. Florida, 463 U.S.

939 (1983) (plurality opinion), and did

not contribute to establishing any

aggravating circumstances. Dawson, 503

U.S. 166-67. It was merely evidence of

"abstract beliefs," offered to show moral

reprehensibility. Id. at 167. In

addition, the Supreme Court held that the

evidence was not admissible to rebut

Dawson’s mitigating evidence of his

"good" character. The Supreme Court

stated that his membership in a racist

organization was simply not "bad"

character evidence. Id. at 168.

 Although the murder in this case

involved various sexual fetishes, the

state has not demonstrated that his

fetishes motivated or even contributed to

the murder. Moreover, the state has

offered no connection between these

activities and an aggravating

circumstance or other questions involved

in the death penalty sentencing.

Thisevidence seems geared only to showing

Todd’s moral reprehensibleness.

 While we believe that the admission of

this evidence may have amounted to

constitutional error, it was harmless.

The statutory aggravating factors of

robbery, attempted aggravated sexual

assault, combined with "brutal and

heinous behavior indicative of wanton

cruelty," which the sentencing court

described as "just for the fun of

killing," were the factors the sentencing

court identified and emphasized. It never

mentioned Todd’s past sexual conduct.

 The Illinois Supreme Court never

addressed these issues, but summarily

rejected Todd’s argument, finding only

that the evidence was "reliable and

relevant regarding [his] character."

Though we have trouble finding this

determination reasonable, we have found

any constitutional error harmless. 

G. Mitigating Evidence
 Todd argues that the sentencing court

refused to consider and give effect to

all the mitigating factors he presented,

violating the Eighth Amendment. See

Eddings v. Oklahoma, 455 U.S. 104 (1982);

Lockett v. Ohio, 438 U.S. 586 (1978);

Woodson v. North Carolina, 428 U.S. 280

(1976). He asserts that the sentencing

court limited its consideration to the

statutory mitigating factors available to

him./7 We have reviewed the sentencing

transcript and although we believe that

the record is ambiguous, that conclusion

necessarily requires that we defer to the

Illinois Supreme Court’s conclusion that

the trial court "indicated" that it

considered the nonstatutory mitigating

factors Todd presented. See Todd, 607

N.E.2d at 1194; see also id. at 1198

("[T]he record indicates that Judge Huber

did properly weigh the evidence which the

defense presented in mitigation,

including evidence of nonstatutory

mitigating factors.").

 In the sentencing court’s own words, it

considered only one sentencing factor--it

stated the issue was "whether or not the

mittigating [sic] factor has sufficiently

precluded the imposition of the death

penalty" and that it believed "that the

aggravating factors outweigh the

mittigating [sic] factor considering the

evidence in this case." The only "factor"

the sentencing court identified was the

statutory factor of Todd’s lack of

significant prior criminal activity.

 However, the sentencing court did

indicate that "those other nonstatutory

factors do have [sic] a bearing on the

Courts [sic] ability to weigh the issues

I raised previously," which at least

shows that the sentencing court was aware

of nonstatutory mitigating factors. But

what it meant by what it said, that the

nonstatutory mitigating factors have a

bearing on its ability to weigh the

issues, is unclear. Nonstatutory

mitigating factors were part of the

issues it was required to consider and

weigh, not merely a side-concern that

bears on that question.

 The sentencing court never discussed the

nonstatutory mitigating factors, or the

weight that it attached to them, or why

the total set of mitigating factors were

outweighed by the aggravating factors.

Although we would have expected a more
thorough explanation, leaving no doubt

about the rationale, that is not our

direct concern in this case. We may only

exercise our authority if the state

courts’ adjudications of the claim were

unreasonable. And with that high

standard, we have no choice but to defer

to the Illinois Supreme Court’s

conclusion that the sentencing court did

consider all the mitigation evidence Todd

presented.

III. CONCLUSION

 For the foregoing reasons, the judgment

of the district court is Affirmed.

FOOTNOTES

/1 Approximately one month after Shelton’s body was

found, her family discovered that her purse was

missing. On March 22, 1990, another seven months

later, the purse was found in a cornfield some

distance away.

/2 He argues that (1) the state secured an indictment against him with perjured testimony, and the

indictment failed to provide him with adequate

notice of the basis for the charge of attempted

aggravated criminal sexual assault, violating the

Fourteenth Amendment; (2) the trial court improperly admitted evidence of other crimes, where the

probative value of the evidence was greatly

outweighed by its prejudicial effect, violating

the Fourteenth Amendment; (3) the trial court was

not an impartial tribunal, violating the Sixth

and Fourteenth Amendments; and (4) the state’s

delay in the execution of his death sentence is

cruel and unusual punishment, violating the

Eighth Amendment.

/3 Shelton’s family returned to her home one month

after the murder, and found a Bob Seger tape in

the tape deck.

/4 Several of Todd’s allegations of ineffective

assistance were not presented to the state

courts, and thus are procedurally defaulted.

Although we do not discuss each of these procedurally defaulted claims in this opinion, we have

considered them and conclude that they are without merit.

/5 We use this term rather broadly, including in it

Todd’s fiancee’s parents.

/6 Illinois lists its aggravating factors within the

first-degree murder statute itself. 720 Ill.

Comp. Stat. 5/9-1(b) (West 2002). In this case,

the trial court relied upon the felony-murder
factor, which allows for the imposition of the

death penalty if "the murdered individual was

killed in the course of another felony." 720 Ill.

Comp. Stat. 5/9-1(b)(6). The trial court found

that this murder was committed in the course of

a robbery and attempted aggravated sexual assault, which qualify as predicate felonies. 720

Ill. Comp. Stat. 5/9-1(b)(6)(c).

/7 There is a non-exhaustive list of mitigating

factors a trial court may consider when choosing

whether to impose the death penalty. 720 Ill.

Comp. Stat. 5/9-1(c). For example, the defendant’s lack of prior criminal history, whether

the defendant was under the influence of extreme

mental or emotional disturbance when the murder

was committed, or whether the defendant was

personally present at the time the murder was

committed are relevant mitigating factors. 720

Ill. Comp. Stat. 5/9-1(c)(1),(2), and (5).