### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3268
A NTHONY M ERTZ , Petitioner

- Appellant ,

v.

T ARRY W ILLIAMS , 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

.

____________________
A RGUED S EPTEMBER 17, 2014

— D ECIDED N OVEMBER 18 , 2014

____________________

Before F LAUM , K ANNE , and R OVNER , Circuit Judges

. F LAUM , Circuit Judge

. An thony Mertz was sentenced to death in 2003 for the murder of Shannon McNamara. I n 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 h abeas petition alleging ineffective assistance of his sentencing counsel for fail ing to rebut evi dence that Mertz commit ted

an uncharged murder, as well as an uncharged arson. Wit h-2 No. 13

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out addressing whether Mertz’s counsel’s performance was deficient, t he 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 apart ment

. 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, ge nitals , and back. McNamara’s bedr oom window screen was cut, and investigators discovered both a razor blade and an empty box cutter handle in the apartment . Near the bat hroom

— where investigators believe McNama ra died

— investigators discovered a credit card bear ing the name “A nthony Mertz.” One block from McNamara’s apartment, i nvestigators 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.
Pol ice eventually arrested Mertz for McNamara’s mu rder . Mertz claimed that he had been drinking with friends the night that McNamara was kill ed, and that he could not remember anything after a certain point in the evening. In an initial interview with police, investigators noticed that MertzNo. 13

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had scratches on his head and throat, bruises on his arm, and red knuckles; Mertz told police that he wa s injured after breaking a shot glass. Tests on DNA scrapings from unde rneath 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 missin g 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 penal ty because he committed the murder in the course of committing other fe lonies. At sentencing , the government presented evidence that , prior to the McNamara mur der, Mertz committed sexual and/or physical assaults on at least four other women, in a ddition t o two men as well as two fellow inmates. The go vernment put forth additional evidence that Mertz committed the unsolved and uncharged 1999 murd er of a woman named Amy Warner. Mertz told friends

— albeit in a joking

manner

— that he committed the crime , and also kept a newspaper arti cle about the murder in his apartment. A wi tness also placed a car matching the description of Mertz’s girl friend’s car at Warner’s apartment on the night of her death. Additionally, t he gov ernment drew a number of pa rallels betwe en the McNamara and Warner murders. Officer Joe Sieffer man tes tified at sentencing that both victims had their arms extended be yond their heads, both had injuries to their throat s , and both appeared to be “posed” by their kil lers after their death. Both wo men were at tacked on a Tue sday in June while they were asleep. No useful fingerprints were found at either crime scene.4 No. 13

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The government also offered evidence that Mertz co mmitted the unsolved and uncharged arson of Unique Apar tments

— a partially constructed apartment building locat ed across the street from Mertz’s home . It burned down in Fe bruary 2000, but b ecause of the damage to the structure, the cause of the fire could not be determined. However , the a ssistant fire chief testified that there was no source of ignition in the structure and that the rapid progression of the fire i mplied 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, bu t denied committing the crime.
Furthermore , t he govern ment submitted evidence that Mertz’s computer contained nude photos of his former gir lfriends, nude photos of female children, and bestiality ph otos. The jury heard further evidence that Mertz used th e screen name “Cereal Kilr 2000, ” admired Hitler and Timothy McVeigh, and that his computer con tained articles on racism and drug manufacture , as well as images of white pride sym bols and Nazi flags. In response to the government’s aggravating evidence, Me rtz’s lawyers called twenty

- five witnesses to offer mit iga t ing 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 mo lested them. A fter high school, Mertz entered the Marine Corps

. While in the M arines, Mertz was treated for alcoholism; he was also promo t-No. 13

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ed to Cor poral, but then demot ed and court

- martialed for using methampheta mine. He then received an honorable discharge. Mertz’s lawyers also presented the testimony of two women wi th whom Mertz had relationships during his time in the Ma rines. 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 att ended Eastern Illinois Unive rsity, where he continued to struggle with alcoholism. He sought help at several treatment centers where he was trea ted for drinking and depression. Mertz’s lawyers also called a clinical forensic psychologist and mitigation spe cialist

— Dr. Mark Cunningham

— to testify that Mertz suffered from n umerous 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 mu rder of Amy Warn er 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 Il linois Supreme Court, which affirmed his sentence. Mertz then filed a state pos tconviction petition in the Coles County Circuit Court . Wit hout an evidentiary hearing, the C ircuit C ourt held that Mertz’s constitutional rights were not violated. Mertz a ppealed the denial of his state postconviction petition directly to the Illinois Supreme Court. But b efore the Illinois S upreme Court heard Me r tz’s case, Governor Quinn commu ted Mertz’s death sentence to life imprisonment without the6 No. 13

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possibility of pa role, 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 Gove rnor’s commutatio n “removes the judicially imposed se ntence and replaces it with a lesser, executively imposed se ntence.” People v. Mertz , No. 4

- 11

- 0247 (Ill. App. Ct. S ept. 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 ineff ective 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

W e review the district court’s denial of Mertz’s habeas petition de novo a nd its factual findings for clear error. M orales 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 adjud icated by a state court unless that decision “ was contrary to , or involved an unreasonable application of , clearly esta blished Fed eral law ,” or was based on an unreasonable d etermination of facts. 28 U.S.C. § 22 54(d)(1)

– (2)

. However, if a state court did not adjudicate a claim on the merits , a district
court review s that claim de no vo.No. 13

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Mertz previously alleged the ineffective assistance of his sentencing counsel in a petition before t he Coles County Ci rcuit Court (“Circuit Court”) . The Circuit Court addressed this claim on the merits and concluded that Mertz ’s constit utional 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 trans ferred to the Illinois Appel late Court (“Appellate Court”). The Appellate Court then dismissed Mertz’s se ntencing claims as moot in light of his sentence commutation

. T he Appellate Court , therefore, did n ot 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, t he government

a rgue d before the district court that the Circuit Co urt’s judg ment qualifies as a d ecision “on the merits” under § 2254(d). 1 The district court disagreed, citing Il linois Supreme Court case Felzak v. Hruby , 876 N.E.2d 650 ( Ill. 2007)

. In Fe lzak , the Illinois Supreme Court dismissed the party’s appeal

as mo ot, and further held: Because we do not reach the merits of the pet ition

. . . we cannot speak to the correctness of the judgments rendered by the circuit and a ppellate 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 ask s us to resolve the question of whether the district court’s use of the de novo standard of review in this case was appropriate

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issues presented to it from standing as prec edent for future cases, we vacate the judgments of both the appellate and circuit courts.
Id. at 658 (internal quotation marks omitted). Based on Fe lzak , 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 *1 9 (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 S upreme Court in Felzak

. In Felzak , the Illinois Supreme Court vacated the judg ments of both the Appellate Court and the Circuit Court for the specific p urpose of stripping both dec isions of precedential value. T he 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 C ourt sta ted that an appellate court’s dismis sal of an appeal

— rather than a decision to va cate a lower court’s judgment

— “effectively leaves the lower court’s ruling on the merits u ndisturbed and in tact.” 4 N.E.3d 474, 482 (Ill. 2014). Furthe rmore, Felzak did not hold

— as the district court implied

— that when an appellate court dismisses an appeal for moo tness, the case below is automatically vacated . Instead, Felzak cited United States v. Munsingwear , 340 U.S. 36, 39 (1950) , for support, wherein the S upreme Court held that it was the “established practice,” and even the “duty of the appellate court” “to reverse or vacate the judgment below and rema nd with a direction to dismiss ” in the event that a case become s moot while awaiting appellate review. Alt hough the FelzakNo. 13

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court

— in citing Munsingwear

— paraphrased its holding by stating , “when an appeal is rendered moot through happe nstance, the judgments of the courts below are vacated,” 876 N.E.2d at 659, we are not persuaded that the Illinois S upreme Court intended this to mean that an appellate dismi ssal for mootness automatically vacates a lower court dec ision. Instead, w e are convinced that i f both the United States Supreme Court and the Illinois Supreme Court intended to hold that a dismissal for mootnes s automatically strips a lower court decision of preclusive effect, then neither court would have specifically instructed appella te courts to vacate and dismiss in these instances. Thus , w e find that because the Appellate Court in Mertz’s case failed to ta ke such steps, the distric t court erred in holding that the Circuit Court’s d ecision l acked pre clusive effect under § 2254(d)

. 2
Nevertheless , w e do not remand back to the district court to apply the correct standard of review under § 2254(d) . In

r e viewing 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 favor able 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 h abeas petitioner’s claims on “purely procedural, not substantive grounds,” after a lower state court addressed the substanc e of the same claims. Id . at 11 5

. The Thomas court decided that the Pennsylvania Supre me Court’s decision stripped the lower court’s substantive dec ision 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

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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 C ounsel ’s Performance Strickland v. Washington , 466 U.S. 668 , 687 (1984) , esta blishes a two

- prong test for ineffectiv e assistance of counsel claims: t he defendant must first demonstrate that his cou nsel’s performance was deficient, and second, that counsel’s deficient performance prejudiced him. Mertz points to Rom pilla v. Beard , 545 U.S. 374, 393 (2005), wherein the Supreme Court held that sentencing counsel’s performance was def icient because of a f ailure to investigate a similar prior o ffense , 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 Rompi lla’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 re sponsibility to respond to such arguments. However Mertz’s case is quite distinct from Rompilla . In Rompilla , se ntencing 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 se ntencing counsel knew that the government would use ev idence of the defendant’s prior felony convictions as an a ggravating factor under state law. Id. at 383. Additionally, al though Rompilla’s sentencing counse l was aware of a pote ntial substance abuse problem, “counsel did not look for ev idence of a history of dependence on alcohol that might haveNo. 13

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extenuating significance.” Id. at 382. Unlike sentencing cou nsel in Rompilla , Mertz’s sentencing counsel thoroughly inve stigated 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 o ffense cannot be easily compared to counsel’s failure to exa mine a pr ior conviction file. Strickland indicates that “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assi stance; that is, the defendant must overcome the presumption that, under the circum s tances, 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 u nclear why Mert z’s sentencing counsel did not rebut the ev idence of the Warner murder and the Unique Apartments a rson, but it is clear that Mertz does not overcome the pr esumption that this decision was one of “sound trial strat egy

. ”
Moreover , i n Pole v. Randolph , we held that “[w] e assess counsel’s work as a whole, and it is the overall deficient pe rformance, 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. C ounse l 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 is sues. The jury heard first hand a ccounts from Mertz’s sisters a bout 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

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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 gene tic 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 step mother. 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 sufficien tly egregious to taint her performance as a whole

. Mertz further argues that his sentencing counsel was d eficient 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 commi tted a violent robbery ; (2) evidence that Mertz attempted su icide after he was arrested for a DUI six months p rior to the McNamara murder ; ( 3 ) medical records from the Veterans Administration Medical Cent er Pharmacy showing that Mertz refilled his prescriptions for anti

- depressant medic ations the day before McNamara’s murder ; and (4) an expert witness to determine whether Mertz’s combined use of alc ohol and anti

- depressant medication brought about a state of involuntary intoxication, showing Mertz’s diminished me ntal state

. First, w e find that t he evidence pertaining to Mertz’s m aternal uncle would have been cumul ative of the evidence already presented to the jury on the topics of Mertz’s su bstance abuse and family his tory

. In Bobby v. Van Hook , the Supreme Court addressed the issue of cumulative mitigationNo. 13

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testimony , stat ing, “[T] here comes a point at which eviden ce 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, 1 1 (2009) . We find these pri nciples applicable here, and hold that Mertz’s counsel was not deficient in failing to present evidence about Mertz’s mate rnal uncle.
Next, Mertz claims that his sentencing counsel was ine ffective for failing to introduce evidence of medical records and inc ident reports about his attempted suicide, because outside of his own testimony about the attempt , no corrob orating documentation was presented

. We find that these re cords would have been cumulative of Mertz’s own testimony, and that counsel’s failure to i ntroduce them was not so flawed as to taint her overall performance during senten cing. As mentioned above, sentencing counsel introduced considerable evidence relating to Mertz’s family bac kground, substance abuse , struggle with depression, and i ndeed, eve n his suicide attempt six months prior to the McNamara murder. The mere fact that additional doc uments would have corroborated Mertz’s testimony does not support a conclusion that his sentencing counsel performed deficiently by not introducing them.
Finall y , Mertz’s arguments relating to his use of anti

depressants 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 ev idence that he was involuntarily intoxicated when he co mmitted 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 that14 No. 13

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Mertz may have be en susceptible to violent episodes as a r esult 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 Al though Mertz now ar gues that similar evidence should have been presented during mitigation

— rather than as an affir mative defense

— arguments in a federal habeas petition which were not raised to the district court are not properly raised for the first time on appe al

. Sanders v. Cotton , 398 F.3d 572, 583 (7th Cir. 2005) (citing Perry v. Sullivan , 207 F.3d 379, 383 (7t h 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 d eficient.

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 pe rformance, a reasonable probability exists that he would have received a different sentence. Griffin v. Pierce , 622 F.3d 831, 844 (7th Cir. 201 0 ) (c iting Strickland , 466 U.S. at 694). “Courts assess that probability by evaluating the totality of the avai lable mitigation evidence

— both that adduced at trial, and the evidence adduced in the habeas proceeding

— and reweig hing it against the evidence in aggr avation.” Id. (internal qu o3 The dis trict court did not issue a certificate of appealabil ity on this i ssue, which prevents us from exercising jurisdiction over the claim. Mi ller

- El v. Cockrell , 537 U.S. 322, 336 (2003).No. 13

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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, t he 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 cu rrent sentence of life without the possibility of parole. See Mertz , 2013 WL 5163189 , a t *19

. Mertz argues that the district court erred in this re spect; 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. I n Richardson v. Lemke , 745 F.3d 258 (7th Cir. 2014), we recently considered a habeas petition alleging ineffective assistance of counsel at a capital sen tencing 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

- assistance

at

- 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 r esulted in a sentence to a term of years.
Id. at 267. T herefore , the district court correctly used a term of years sentence as the benchmark for Strickland prejudice in Mertz’s case.16 No. 13

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Furthermore, we agree with the district court’s concl usion that Mertz doe s not prove Strickland prejudice even a ssuming counsel’s performance was deficient. Mertz was el igible for the death penalty because he murdered McNamara in the course of committing other felonies (home invasion and aggravated sexual assault). When Mertz w as 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, the n the trial judge would have issued Mertz’s sentence . 720 Ill. Comp. Stat. 5/9

- 1(g) (West 2010). We hold that no reaso nable probability exists that the trial judge would ultimately have sentenced Mertz to anything less than what he curren tly serves had sentencing counsel rebutted the evi dence of the Warner murder and the Unique Apartments arson. While this evidence was certainly aggravating, it was far from the only aggravat ion evidence present ed

. Both the jury and the trial judge heard evidence that Mertz broke into McNamara’s home by cutting her bedroom window s creen 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 lacer ating her liver with severe blunt force . T he government also presented a host of other tro ubling evi dence, in cluding evidence that Mertz had a history of committing violent assault s on women; that he symp athized with figures such as Hitler and Timothy McVeigh; that he kept imag es 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 ev idence that Mertz now presents

— evidence rebutting the all egation s that Mertz committed the Warner murder and the Unique Apartments arson, as well as additional informationNo. 13

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about Mertz’s family history, depression and substance abuse

— against the aggravation evidence which was pr esented , we cannot conclude that a substantial probability e xists 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, w e A FFIRM the dis trict court’s ruling.

4 We note that e ven 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 support ed the theory that Mertz did commit these un charged 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.