In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3268

ANTHONY MERTZ,

Petitioner-Appellant,

v.

TARRY WILLIAMS, Warden,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 4174 — Matthew F. Kennelly, Judge.

____________________

ARGUED SEPTEMBER 17, 2014 — DECIDED NOVEMBER 18, 2014

____________________

Before FLAUM, KANNE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. Anthony Mertz was sentenced to 

death in 2003 for the murder of Shannon McNamara. In 

2011, Illinois Governor Pat Quinn commuted his sentence to 

life imprisonment without the possibility of parole. Mertz 

now brings this appeal of the district court’s denial of his habeas petition alleging ineffective assistance of his sentencing 

counsel for failing to rebut evidence that Mertz committed 

an uncharged murder, as well as an uncharged arson. With-
2 No. 13-3268

out addressing whether Mertz’s counsel’s performance was 

deficient, the district court held that Mertz could not show 

the necessary prejudice under Strickland v. Washington, 466 

U.S. 668 (1984), to succeed on his claim for relief. We affirm.

I. Background

A. Factual Background

On June 12, 2001, Shannon McNamara’s roommate found 

her dead in their college apartment. McNamara was naked 

from the waist down, and her shirt and bra were pulled up 

over her face. A washcloth was stuffed inside of her mouth, 

and a piece of a latex glove was discovered near her head. 

McNamara had a large cut down the center of her abdomen,

bruises to her face, and a fractured neck. The right lobe of 

her liver was lacerated as a result of blunt force trauma. 

McNamara’s body also bore knife wounds to her throat, genitals, and back. McNamara’s bedroom window screen was

cut, and investigators discovered both a razor blade and an

empty box cutter handle in the apartment. Near the bathroom—where investigators believe McNamara died—

investigators discovered a credit card bearing the name “Anthony Mertz.” One block from McNamara’s apartment, investigators discovered a knife in a dumpster covered in 

McNamara’s blood. McNamara’s roommate informed police

that the knife was part of a set that she and McNamara kept 

in their kitchen.

Police eventually arrested Mertz for McNamara’s murder. Mertz claimed that he had been drinking with friends 

the night that McNamara was killed, and that he could not 

remember anything after a certain point in the evening. In an 

initial interview with police, investigators noticed that Mertz 
No. 13-3268 3

had scratches on his head and throat, bruises on his arm, and 

red knuckles; Mertz told police that he was injured after 

breaking a shot glass. Tests on DNA scrapings from underneath McNamara’s fingernails were inconclusive, but did 

not exclude Mertz as a contributor. Multiple pairs of latex 

gloves were found in Mertz’s apartment, and a box cutter 

went missing from his place of employment the day that 

McNamara was killed. In February 2003, a jury convicted 

Mertz of aggravated criminal sexual assault, home invasion, 

and first-degree murder in connection with McNamara’s 

death. He was eligible for the death penalty because he 

committed the murder in the course of committing other felonies. 

At sentencing, the government presented evidence that,

prior to the McNamara murder, Mertz committed sexual 

and/or physical assaults on at least four other women, in addition to two men as well as two fellow inmates. The government put forth additional evidence that Mertz committed 

the unsolved and uncharged 1999 murder of a woman 

named Amy Warner. Mertz told friends—albeit in a joking 

manner—that he committed the crime, and also kept a 

newspaper article about the murder in his apartment. A witness also placed a car matching the description of Mertz’s 

girlfriend’s car at Warner’s apartment on the night of her 

death. Additionally, the government drew a number of parallels between the McNamara and Warner murders. Officer 

Joe Siefferman testified at sentencing that both victims had 

their arms extended beyond their heads, both had injuries to 

their throats, and both appeared to be “posed” by their killers after their death. Both women were attacked on a Tuesday in June while they were asleep. No useful fingerprints 

were found at either crime scene.
4 No. 13-3268

The government also offered evidence that Mertz committed the unsolved and uncharged arson of Unique Apartments—a partially constructed apartment building located 

across the street from Mertz’s home. It burned down in February 2000, but because of the damage to the structure, the 

cause of the fire could not be determined. However, the assistant fire chief testified that there was no source of ignition 

in the structure and that the rapid progression of the fire implied the use of an accelerant, suggesting a possible arson. 

Four of Mertz’s friends heard Mertz claim responsibility for 

the fire. Mertz confirmed that he made these statements, but 

denied committing the crime.

Furthermore, the government submitted evidence that 

Mertz’s computer contained nude photos of his former girlfriends, nude photos of female children, and bestiality photos. The jury heard further evidence that Mertz used the 

screen name “Cereal Kilr 2000,” admired Hitler and Timothy 

McVeigh, and that his computer contained articles on racism

and drug manufacture, as well as images of white pride 

symbols and Nazi flags.

In response to the government’s aggravating evidence, 

Mertz’s lawyers called twenty-five witnesses to offer mitigating testimony. The jury heard how Mertz lived in terrible 

conditions with his biological mother until the age of one, 

after which he and his three sisters went to live with their 

grandmother. When Mertz was in third or fourth grade, he 

went to live with his father and stepmother. Mertz’s sisters 

testified that their stepmother occasionally beat them, and 

that their stepsister sexually molested them. After high 

school, Mertz entered the Marine Corps. While in the Marines, Mertz was treated for alcoholism; he was also promot-
No. 13-3268 5

ed to Corporal, but then demoted and court-martialed for 

using methamphetamine. He then received an honorable 

discharge. Mertz’s lawyers also presented the testimony of 

two women with whom Mertz had relationships during his 

time in the Marines. Both testified that Mertz was not violent 

and that he wanted to attend college to become a history 

teacher.

The jury heard additional evidence that following his 

time in the Marines, Mertz attended Eastern Illinois University, where he continued to struggle with alcoholism. He 

sought help at several treatment centers where he was treated for drinking and depression. Mertz’s lawyers also called a 

clinical forensic psychologist and mitigation specialist—Dr. 

Mark Cunningham—to testify that Mertz suffered from numerous developmental factors that increased his tendency to 

commit crimes. However, Mertz’s lawyers did not offer any 

evidence to rebut the claims that Mertz committed the murder of Amy Warner or the arson of Unique Apartments.

B. Procedural Background

After just three hours of deliberation, the jury sentenced 

Mertz to death, as well as an additional sixty-year sentence 

for an exceptionally brutal home invasion. Mertz appealed 

his death sentence directly to the Illinois Supreme Court, 

which affirmed his sentence. Mertz then filed a state postconviction petition in the Coles County Circuit Court. Without an evidentiary hearing, the Circuit Court held that 

Mertz’s constitutional rights were not violated. Mertz appealed the denial of his state postconviction petition directly 

to the Illinois Supreme Court. But before the Illinois Supreme Court heard Mertz’s case, Governor Quinn commuted Mertz’s death sentence to life imprisonment without the 
6 No. 13-3268

possibility of parole, and Mertz’s case was transferred to the 

Illinois Appellate Court. The Appellate Court then dismissed 

Mertz’s appeal on the basis that, as a matter of Illinois law, 

Mertz’s sentencing claims were moot because the Governor’s commutation “removes the judicially imposed sentence and replaces it with a lesser, executively imposed sentence.” People v. Mertz, No. 4-11-0247 (Ill. App. Ct. Sept. 9, 

2011) (citing People v. Williams, 807 N.E.2d 448, 452 (Ill. 

2004)).

Mertz filed a petition for a writ of habeas corpus under 

28 U.S.C. § 2254 in the Northern District of Illinois alleging, 

among other things, that his trial counsel was ineffective at 

sentencing. The district court reviewed Mertz’s ineffective 

assistance claim de novo, and found that even if Mertz’s 

counsel was ineffective (an analysis in which the district 

court did not engage), Mertz did not demonstrate prejudice 

under Strickland. Mertz appeals.

II. Discussion

We review the district court’s denial of Mertz’s habeas 

petition de novo and its factual findings for clear error. Morales v. Johnson, 659 F.3d 588, 599 (7th Cir. 2011).

A. Application of 28 U.S.C. § 2254(d)

In reviewing a habeas petition, a district court generally 

may not grant relief on a claim that was previously adjudicated by a state court unless that decision “was contrary to,

or involved an unreasonable application of, clearly established Federal law,” or was based on an unreasonable determination of facts. 28 U.S.C. § 2254(d)(1)–(2). However, if a 

state court did not adjudicate a claim on the merits, a district 

court reviews that claim de novo.
No. 13-3268 7

Mertz previously alleged the ineffective assistance of his 

sentencing counsel in a petition before the Coles County Circuit Court (“Circuit Court”). The Circuit Court addressed 

this claim on the merits and concluded that Mertz’s constitutional rights were not violated. Still under a death sentence, 

Mertz appealed this decision to the Illinois Supreme Court. 

But while Mertz awaited an appeal in the Illinois Supreme 

Court, Governor Quinn commuted his sentence, and his case 

was transferred to the Illinois Appellate Court (“Appellate 

Court”). The Appellate Court then dismissed Mertz’s sentencing claims as moot in light of his sentence commutation. 

The Appellate Court, therefore, did not adjudicate Mertz’s 

claim on the merits, but also did not vacate the Circuit 

Court’s decision, which did reach the merits of his ineffective 

assistance of counsel claim. Because of this, the government 

argued before the district court that the Circuit Court’s 

judgment qualifies as a decision “on the merits” under 

§ 2254(d).1

The district court disagreed, citing Illinois Supreme 

Court case Felzak v. Hruby, 876 N.E.2d 650 (Ill. 2007). In Felzak, the Illinois Supreme Court dismissed the party’s appeal 

as moot, and further held:

Because we do not reach the merits of the petition . . . we cannot speak to the correctness of 

the judgments rendered by the circuit and appellate courts in this matter. Accordingly, to 

prevent the appellate court’s resolution of the 

1 Although the government did not appeal the district court’s decision, it

asks us to resolve the question of whether the district court’s use of the 

de novo standard of review in this case was appropriate. 

 
8 No. 13-3268

issues presented to it from standing as precedent for future cases, we vacate the judgments 

of both the appellate and circuit courts.

Id. at 658 (internal quotation marks omitted). Based on Felzak, the district court reasoned that “a ruling by an appellate 

court that a case is moot deprives the lower court’s decision 

on the merits of preclusive effect.” U.S. ex rel. Mertz v. Hardy, 

No. 12 C 4174, 2013 WL 5163189, at *19 (N.D. Ill. Sept. 13, 

2013). 

However, the actions of the Appellate Court in Mertz’s 

case are distinct from the actions taken by the Illinois Supreme Court in Felzak. In Felzak, the Illinois Supreme Court 

vacated the judgments of both the Appellate Court and the 

Circuit Court for the specific purpose of stripping both decisions of precedential value. The Appellate Court here took 

no such steps; instead it dismissed the suit due to mootness, 

but did not disturb the Circuit Court’s original decision. 

Moreover, in People v. Bailey, the Illinois Supreme Court stated that an appellate court’s dismissal of an appeal—rather 

than a decision to vacate a lower court’s judgment—

“effectively leaves the lower court’s ruling on the merits undisturbed and intact.” 4 N.E.3d 474, 482 (Ill. 2014). Furthermore, Felzak did not hold—as the district court implied—

that when an appellate court dismisses an appeal for mootness, the case below is automatically vacated. Instead, Felzak

cited United States v. Munsingwear, 340 U.S. 36, 39 (1950), for 

support, wherein the Supreme Court held that it was the 

“established practice,” and even the “duty of the appellate 

court” “to reverse or vacate the judgment below and remand 

with a direction to dismiss” in the event that a case becomes

moot while awaiting appellate review. Although the Felzak
No. 13-3268 9

court—in citing Munsingwear—paraphrased its holding by 

stating, “when an appeal is rendered moot through happenstance, the judgments of the courts below are vacated,” 876 

N.E.2d at 659, we are not persuaded that the Illinois Supreme Court intended this to mean that an appellate dismissal for mootness automatically vacates a lower court decision. Instead, we are convinced that if both the United States 

Supreme Court and the Illinois Supreme Court intended to 

hold that a dismissal for mootness automatically strips a 

lower court decision of preclusive effect, then neither court 

would have specifically instructed appellate courts to vacate 

and dismiss in these instances. Thus, we find that because 

the Appellate Court in Mertz’s case failed to take such steps, 

the district court erred in holding that the Circuit Court’s decision lacked preclusive effect under § 2254(d).2

Nevertheless, we do not remand back to the district court 

to apply the correct standard of review under § 2254(d). In 

reviewing Mertz’s claim de novo, the district court afforded 

Mertz the most favorable standard of review possible, yet

still concluded that his ineffective assistance of counsel claim 

lacked merit. To remand the case and ask the district court to 

apply a less favorable standard of review would certainly 

yield the same result. And since we agree with the district 

2 The district court also cited Thomas v. Horn, 570 F.3d 105 (3d Cir. 2009). 

In Thomas, the Pennsylvania Supreme Court reached a decision on a habeas petitioner’s claims on “purely procedural, not substantive 

grounds,” after a lower state court addressed the substance of the same 

claims. Id. at 115. The Thomas court decided that the Pennsylvania 

Supreme Court’s decision stripped the lower court’s substantive decision of any preclusive effect. Id. However, the opinion does not indicate 

whether the Pennsylvania Supreme Court simply dismissed the appeal, 

or whether it expressly vacated the lower court’s judgment. Id.

 
10 No. 13-3268

court’s assessment that Mertz’s ineffective assistance claim 

fails under de novo review, we also conclude that his claim 

fails under the standard of review required by § 2254(d).

B. Sentencing Counsel’s Performance

Strickland v. Washington, 466 U.S. 668, 687 (1984), establishes a two-prong test for ineffective assistance of counsel 

claims: the defendant must first demonstrate that his counsel’s performance was deficient, and second, that counsel’s 

deficient performance prejudiced him. Mertz points to Rompilla v. Beard, 545 U.S. 374, 393 (2005), wherein the Supreme 

Court held that sentencing counsel’s performance was deficient because of a failure to investigate a similar prior offense, which the government used as aggravation evidence. 

The Rompilla court held that “[t]he prosecution was going to 

use the dramatic facts of a similar prior offense, and Rompilla’s counsel had a duty to make all reasonable efforts to learn 

what they could about the offense.” Id. at 385.

Mertz argues that, like in Rompilla, the government in 

this case focused on the disturbing details of other offenses 

during sentencing, and that Mertz’s sentencing counsel had 

a responsibility to respond to such arguments. However 

Mertz’s case is quite distinct from Rompilla. In Rompilla, sentencing counsel did not just fail to rebut evidence of a prior 

offense, but failed to look at the defendant’s prior conviction 

file altogether. Further, the file was a public record, and sentencing counsel knew that the government would use evidence of the defendant’s prior felony convictions as an aggravating factor under state law. Id. at 383. Additionally, although Rompilla’s sentencing counsel was aware of a potential substance abuse problem, “counsel did not look for evidence of a history of dependence on alcohol that might have 
No. 13-3268 11

extenuating significance.” Id. at 382. Unlike sentencing counsel in Rompilla, Mertz’s sentencing counsel thoroughly investigated Mertz’s struggles with substance abuse in an effort to 

present this information to the jury. Additionally, we find 

that the failure to rebut evidence of an uncharged prior offense cannot be easily compared to counsel’s failure to examine a prior conviction file. Strickland indicates that “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.’” 466 U.S. at 689 (citing 

Michel v. State of Louisiana, 350 U.S. 91, 101 (1955)). It is unclear why Mertz’s sentencing counsel did not rebut the evidence of the Warner murder and the Unique Apartments arson, but it is clear that Mertz does not overcome the presumption that this decision was one of “sound trial strategy.”

Moreover, in Pole v. Randolph, we held that “[w]e assess 

counsel’s work as a whole, and it is the overall deficient performance, rather than a specific failing, that constitutes the 

ground of relief.” 570 F.3d 922, 934 (7th Cir. 2009) (internal 

quotation marks and citations omitted). Under this standard, 

sentencing counsel’s overall performance was not deficient. 

Counsel called twenty-five mitigation witnesses, including 

Mertz’s family members, former girlfriends, and a clinical 

forensic psychologist—Dr. Mark Cunningham—who offered 

testimony on a variety of issues. The jury heard firsthand accounts from Mertz’s sisters about the circumstances of the 

siblings’ upbringing, including the physical and sexual 

abuse they suffered at the hands of their stepmother and 

stepsister. Two of Mertz’s former girlfriends testified—
12 No. 13-3268

contrary to testimony offered by other women who claimed 

that Mertz physically and sexually assaulted them—that 

Mertz was not violent during their respective relationships. 

Additionally, Dr. Cunningham testified about Mertz’s genetic predisposition to alcoholism and depression, as well as the 

negative impact of the physical and emotional abuse that 

Mertz endured at the hands of his stepmother. These facts 

demonstrate that Mertz’s sentencing counsel was thoughtful 

and thorough in building Mertz’s mitigation case and that 

counsel’s decision not to rebut the Warner and Unique 

Apartments evidence was—at the very least—not sufficiently egregious to taint her performance as a whole.

Mertz further argues that his sentencing counsel was deficient in failing to present a myriad of additional evidence,

including: (1) evidence that his maternal uncle was a drug 

addict and a “mentally disturbed individual” who committed a violent robbery; (2) evidence that Mertz attempted suicide after he was arrested for a DUI six months prior to the 

McNamara murder; (3) medical records from the Veterans 

Administration Medical Center Pharmacy showing that 

Mertz refilled his prescriptions for anti-depressant medications the day before McNamara’s murder; and (4) an expert 

witness to determine whether Mertz’s combined use of alcohol and anti-depressant medication brought about a state of 

involuntary intoxication, showing Mertz’s diminished mental state. 

First, we find that the evidence pertaining to Mertz’s maternal uncle would have been cumulative of the evidence 

already presented to the jury on the topics of Mertz’s substance abuse and family history. In Bobby v. Van Hook, the 

Supreme Court addressed the issue of cumulative mitigation 
No. 13-3268 13

testimony, stating, “[T]here comes a point at which evidence 

from more distant relatives can reasonably be expected to be 

only cumulative, and the search for it distractive from more 

important duties.” 558 U.S. 4, 11 (2009). We find these principles applicable here, and hold that Mertz’s counsel was not 

deficient in failing to present evidence about Mertz’s maternal uncle.

Next, Mertz claims that his sentencing counsel was ineffective for failing to introduce evidence of medical records 

and incident reports about his attempted suicide, because 

outside of his own testimony about the attempt, no corroborating documentation was presented. We find that these records would have been cumulative of Mertz’s own testimony, 

and that counsel’s failure to introduce them was not so 

flawed as to taint her overall performance during sentencing. As mentioned above, sentencing counsel introduced 

considerable evidence relating to Mertz’s family background, substance abuse, struggle with depression, and indeed, even his suicide attempt six months prior to the 

McNamara murder. The mere fact that additional documents would have corroborated Mertz’s testimony does not 

support a conclusion that his sentencing counsel performed 

deficiently by not introducing them.

Finally, Mertz’s arguments relating to his use of antidepressants in close proximity to the McNamara murder are

waived. The district court entertained Mertz’s argument that 

his counsel was ineffective for failing to offer certain evidence that he was involuntarily intoxicated when he committed the murder. This evidence included the fact that 

Mertz filled an anti-depressant prescription right before the 

murder, as well as a psychiatrist’s report indicating that 
14 No. 13-3268

Mertz may have been susceptible to violent episodes as a result of combining anti-depressants and alcohol. Mertz, 2013 

WL 5163189, at *15. The district court concluded that this 

claim was procedurally defaulted, and that Mertz could not 

demonstrate an appropriate excuse for such default.3 Although Mertz now argues that similar evidence should have 

been presented during mitigation—rather than as an affirmative defense—arguments in a federal habeas petition which 

were not raised to the district court are not properly raised 

for the first time on appeal. Sanders v. Cotton, 398 F.3d 572, 

583 (7th Cir. 2005) (citing Perry v. Sullivan, 207 F.3d 379, 383 

(7th Cir. 2000)). As such, Mertz may not rely on this same 

evidence for a renewed purpose. We therefore conclude that 

Mertz’s sentencing counsel was not deficient.

C. Strickland Prejudice

We also agree with the district court that, regardless of 

whether sentencing counsel’s performance was deficient, 

Mertz does not establish the necessary prejudice under 

Strickland. When a defendant challenges his sentence under 

Strickland, he must show that, but for counsel’s deficient performance, a reasonable probability exists that he would have 

received a different sentence. Griffin v. Pierce, 622 F.3d 831, 

844 (7th Cir. 2010) (citing Strickland, 466 U.S. at 694). “Courts 

assess that probability by evaluating the totality of the available mitigation evidence—both that adduced at trial, and the 

evidence adduced in the habeas proceeding—and reweighing it against the evidence in aggravation.” Id. (internal quo3 The district court did not issue a certificate of appealability on this issue, which prevents us from exercising jurisdiction over the claim. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

 
No. 13-3268 15

tation marks and citations omitted). Finally, the Supreme 

Court has noted that the probability of a different result—in 

this case, a different sentence—“must be substantial, not just 

conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792 (2011).

In Mertz’s case, the district court acknowledged that in 

order to establish Strickland prejudice, Mertz needed to show 

that but for his counsel’s deficient performance, he would 

have received a term of years sentence, rather than his current sentence of life without the possibility of parole. See 

Mertz, 2013 WL 5163189, at *19. Mertz argues that the district 

court erred in this respect; he argues that the standard 

should have been whether, but for counsel’s errors, he

would have received a sentence other than death. However, 

our precedent forecloses Mertz’s argument. In Richardson v. 

Lemke, 745 F.3d 258 (7th Cir. 2014), we recently considered a 

habeas petition alleging ineffective assistance of counsel at a 

capital sentencing hearing where the petitioner’s sentence—

like Mertz’s sentence—was commuted to life imprisonment 

without the possibility of parole. In describing the Strickland 

standard, we stated:

By the time Richardson’s ineffective-assistanceat-sentencing claim was decided by the district 

court, his sentence had been commuted to life 

in prison without the possibility of parole. But 

that did not necessarily render the claim moot; 

Richardson would still be entitled to relief if 

adequate representation would have resulted 

in a sentence to a term of years.

Id. at 267. Therefore, the district court correctly used a term 

of years sentence as the benchmark for Strickland prejudice 

in Mertz’s case.
16 No. 13-3268

Furthermore, we agree with the district court’s conclusion that Mertz does not prove Strickland prejudice even assuming counsel’s performance was deficient. Mertz was eligible for the death penalty because he murdered McNamara

in the course of committing other felonies (home invasion 

and aggravated sexual assault). When Mertz was sentenced, 

the jury was first charged with voting on the question of 

whether the death penalty was appropriate; in the event that 

the jury did not vote unanimously to issue the death penalty, 

then the trial judge would have issued Mertz’s sentence. 720 

Ill. Comp. Stat. 5/9-1(g) (West 2010). We hold that no reasonable probability exists that the trial judge would ultimately 

have sentenced Mertz to anything less than what he currently serves had sentencing counsel rebutted the evidence of 

the Warner murder and the Unique Apartments arson. 

While this evidence was certainly aggravating, it was far 

from the only aggravation evidence presented. Both the jury 

and the trial judge heard evidence that Mertz broke into 

McNamara’s home by cutting her bedroom window screen

with a box cutter; he killed her by shoving a washcloth in 

her mouth, cutting her abdomen, back, and genitals with a 

kitchen knife, and lacerating her liver with severe blunt 

force. The government also presented a host of other troubling evidence, including evidence that Mertz had a history 

of committing violent assaults on women; that he sympathized with figures such as Hitler and Timothy McVeigh;

that he kept images of Nazi flags, white pride symbols, and 

nude photos of children on his computer; and that he used 

the screen name “Cereal Kilr 2000.” In reweighing the evidence that Mertz now presents—evidence rebutting the allegations that Mertz committed the Warner murder and the 

Unique Apartments arson, as well as additional information 
No. 13-3268 17

about Mertz’s family history, depression and substance 

abuse—against the aggravation evidence which was presented, we cannot conclude that a substantial probability exists that Mertz would have received a lower sentence than 

the one he now serves.4 Hence, we agree with the district 

court’s Strickland prejudice analysis.

III. Conclusion

For these reasons, we AFFIRM the district court’s ruling.

4 We note that even if Mertz’s counsel had attempted to contradict the 

assertion that Mertz committed the Warner murder and the Unique 

Apartments arson, this does not mean that the sentencer would have 

been barred from considering the evidence which supported the theory 

that Mertz did commit these uncharged crimes; this evidence included 

the fact that Mertz told friends that he murdered Amy Warner and that 

he was responsible for the Unique Apartments fire.