In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1739

ALAN L. MATHENEY,

Petitioner-Appellant,

v.

RONDLE ANDERSON,

Respondent-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 98 C 183—Allen Sharp, Judge.

____________

ARGUED DECEMBER 11, 2003—DECIDED JULY 29, 2004

____________

Before BAUER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. In April of 1990, an Indiana state

court jury convicted Alan Matheney of murder and burglary. Agreeing with the jury’s recommendation, the trial

judge sentenced Matheney to death. Matheney exhausted

his state-court direct appeals and post-conviction proceedings. Moving to the federal courts on July 11, 1998, he filed

a petition for a writ of habeas corpus, which included a

claim that he had been incompetent to stand trial. On July

30, 1999, the district court, without a hearing but in a detailed examination of the extensive record, found, among

other things, that Matheney was competent to stand trial

and denied his habeas petition. On appeal, this court re-
2 No. 03-1739

manded the case to the district court for an evidentiary

hearing on issues related to Matheney’s incompetency claim.

On November 27, 2002, the district court, in compliance

with our directions, held an evidentiary hearing addressing

the same matters decided in its Memorandum and Order of

1999, to wit: (1) whether Matheney was competent to stand

trial in 1990; (2) whether Matheney’s attorneys at his trial

were ineffective because they did not demand a competency

hearing prior to the trial; and (3) whether the state trial

court was obligated to hold a competency hearing sua

sponte.

As before, the district court considered the totality of the

evidence that pertained to these issues from the trial record, the post-conviction proceedings record, and the federal

habeas record, along with some additional evidence submitted by the parties.

It again concluded that Matheney had been competent to

stand trial in 1990. Hence, the district court reasoned, his

attorneys did not provide ineffective assistance at his trial,

and the trial court did not err in failing to sua sponte consider Matheney’s competency.

Matheney appeals only the district court’s determinations

as to his competency and his attorneys’ effectiveness. For

the reasons stated herein, we affirm the district court’s

decision to deny the writ.

I. History

The factual and procedural background of this case has

been thoroughly laid out in prior opinions. See Matheney v.

Anderson, 253 F.3d 1025 (7th Cir. 2001) (“Matheney IV”);

Matheney v. Anderson, 60 F. Supp. 2d 846 (N.D. Ind. 1999)

(“Matheney III”); Matheney v. Indiana, 688 N.E.2d 883 (Ind.

1997) (“Matheney II”); Matheney v. Indiana, 583 N.E.2d

1202 (Ind. 1992) (“Matheney I”). It will suffice for present
No. 03-1739 3

purposes to supply only a brief factual introduction to the

relevant issues and refer to prior treatments of the case as

necessary.

On March 4, 1989, Matheney took advantage of an eighthour pass from an Indiana state prison to break into the

home of his ex-wife, chase her outside, and brutally bludgeon

her to death with a shotgun. Faced with overwhelming

evidence linking Matheney to the crimes, Matheney’s trial

counsel admitted in the first line of his opening statement

that Matheney indeed performed this horrific act and

subsequently presented the legal defense of insanity. This

defense strategy ultimately proved to be unsuccessful.

Shortly after his indictment, his original counsel requested

the evaluation of Matheney by court-appointed psychiatrists

for the purpose of determining Matheney’s competency to

stand trial and his mental state at the time of the offense.

The incompetency claim and the insanity defense were both

premised on Matheney’s unique understanding of the events

of his life. Matheney was in prison at the time of the murder

because he had kidnaped his children and battered his exwife. Rather than attributing his imprisonment to his own

actions, Matheney blamed a conspiracy between his ex-wife

and a prosecutor, whom he believed were having an affair. In

preparing for trial (and at his post-conviction proceedings),

Matheney insisted that the focus of his defense should be to

expose this conspiracy and thereby—by Matheney’s

reasoning—excuse his crimes.

The defense’s early request for a competency examination

notwithstanding, the trial court did not order the doctors to

address Matheney’s competency to stand trial. So, the courtappointed doctors, Dr. Batacan and Dr. Berkson, made no

explicit competency findings in their written reports on

Matheney’s sanity. Instead, the doctors limited their

inquiries into whether Matheney was sane under Indiana

law at the time of his crimes. The issue of competency was

not raised by defense counsel after the initial motion.
4 No. 03-1739

Competency to stand trial, however, was addressed five

years later by the Indiana trial court in the post-conviction

review of Matheney’s conviction. A lengthy evidentiary hearing was conducted. The hearing included an ex parte examination of Matheney’s counsel by the magistrate, testimony

by Matheney himself, and expert testimony.

Along with many other issues, the question of Matheney’s

competency to stand trial in 1990 was fully reviewed in the

trial court’s post-conviction proceeding. It was argued that

Matheney received ineffective assistance of counsel because

his attorneys failed to secure a competency determination

prior to his trial. However, in a seventy-nine page “Findings

of Fact and Conclusions of Law,” entered on April 10, 1995,

the post-conviction magistrate and judge found to the

contrary. We quote extensively from that document:

3.08 Petitioner’s Allegation: The petitioner was denied

the effective assistance of trial and appellate counsel

because counsel failed to notify the court that the petitioner was incompetent to stand trial and was incompetent to proceed on direct appeal. [¶ 9(C)(6).]

Conclusion: The petitioner was competent.

The petitioner asserts that he was incompetent at the

time of trial and appeal. We note that counsel at the hearing on the petition for post-conviction relief attempted to

halt the post-conviction proceedings because of their

stated belief that the petitioner remains incompetent.

For the reasons discussed below, it is the conclusion of

this court that the petitioner is, and always has been,

competent.

The petitioner raised the affirmative defense of mental

disease or defect at trial. He was examined by a number

of mental health professionals who testified at trial. The

petitioner’s mental condition was no secret from either the

trial court or the jury. The decision to raise the affirmative

defense was made by the trial attorney who also acted as
No. 03-1739 5

appellate counsel. Counsel sincerely believed (and continues to believe) that the petitioner had a mental illness.

The affirmative defense was pursued at trial for this

reason and because part of the petitioner’s trial strategy

regarding the defense took into account the evidentiary

advantage of presenting testimony from the petitioner

through third parties without putting him personally on

the witness stand. The petitioner was consulted on this

strategy and agreed to it.

One thing about the petitioner seems very clear. He is

one of the most difficult clients that any lawyer could be

obliged to represent. From virtually the day the case was

filed, the petitioner has routinely papered the courts with

pro se pleadings that have perhaps doubled the volume of

the record. They have kept his lawyers scurrying to deal

with the collateral problems those pleadings create. The

previously cited filing of the pro se motion for change of

venue from the county is but one example. As trial

counsel has implied, working with the petitioner requires

a great deal of patience.

What is the petitioner’s problem? First and foremost,

he is intensely and narrowly focused on the belief that

his ex-wife and the prosecuting attorney in St. Joseph

County were having an affair. He believes that he was

imprisoned prior to the murder as part of a conspiracy

between the putative lovers to keep him out of the way.

And finally, he also believes that his capital prosecution

for murder was an extension of that conspiracy because

the prosecuting attorney wanted to forever silence the

petitioner about the affair. The petitioner is so narrowly

focused on this alleged conspiracy that he sees the

actions of others, including those of the trial court and

his own attorneys, as extensions of the conspiracy to

keep the affair from being litigated in the courts. He

believes that the affair is the only matter worth litigating even now and he has little patience for those who
6 No. 03-1739

suggest that the affair is irrelevant to the question of

whether or not he murdered his ex-wife.

The attorneys for the petitioner at trial, on appeal, and

in these proceedings have all had trouble communicating with the petitioner because of his reaction to those

he feels are not giving sufficient attention to the conspiracy issue. As appellate counsel tells it, one needs to

let the petitioner talk on and on about the things he

feels are important before other issues can be discussed.

Communication is possible, however, if not efficient.

Most significantly, counsel has stated that the petitioner was substantively involved in the trial process

even if he wasn’t as helpful as another client might

have been.

The petitioner alleges that he was and remains incompetent. “Competency” as used here means the ability to

understand the nature of the proceedings and assist in

the preparation of a defense. It is the conclusion of this

court that the petitioner has always been competent

because: (1) he understood the nature of the proceedings

at trial, on appeal, and in the petition for post-conviction

relief; and, (2) he was able to assist in the preparation of

his defense.

The petitioner understood the nature of the proceedings at, on appeal, and in the petition for post-conviction

trial relief. It is very clear from his own pleadings that he

understood that the purpose of the trial was to adjudge

him innocent or guilty of the murder of his ex-wife. He

also understood that one issue in the trial court was

whether he should be put to death himself for that

murder. He understood the respective roles of the

prosecuting attorneys, defense attorneys and trial court

judges at trial. Likewise, he recognized the purpose of

the appeal and the mechanisms that were a part of it.

The repeated pro se criticisms of the attorneys, the
No. 03-1739 7

courts, and the rulings on the admissibility of evidence,

all are in themselves sufficient to support the conclusion that the petitioner has always had a very clear

understanding of the nature of the proceedings even if

he did not agree with others’ opinions of what should be

presented in those proceedings.

The petitioner was able to assist in the preparation of

his defense. The one trial attorney who had the best

rapport with the petitioner was the same one who represented the petitioner on appeal. He found the petitioner

frustrating, stubborn and decidedly single-minded. It

required extraordinary patience to deal with [the]

petitioner. But, the petitioner was able to provide counsel

with the details of everything that preceded and followed the murder, even if he did not describe the

beating death itself. There is no evidence to suggest

that the petitioner was unable to assist trial counsel.

Does the petitioner have a mental illness? The experts disagree. In short, it is sufficient to say that the

petitioner has an obsession or delusional way of thinking that some doctors believe is so significant that it

rises to the level of a paranoid personality disorder. This,

of course, was known at the time of trial to both the

judge and the jury through the doctors’ testimony.

After trial and appeal, a psychologist examined the

petitioner in preparation for the hearing on the petition

for postconviction relief. He reported an opinion that

the petitioner was unable to assist post-conviction

counsel in the prosecution of the petition because he

could not “rationally discuss his case, nor . . . manage

sufficient distance from his delusional system to appreciate the possibility that he might stand to benefit from

perspectives other than his own.” The doctor who testified at trial on behalf of the petitioner agreed. We do not.

The petitioner’s obsession, whether factual or delu-
8 No. 03-1739

1 The post-conviction trial court also found Matheney to be competent to participate in the post-conviction proceedings: “while the

petitioner’s character has certainly posed a formidable challenge

to his attorneys and made a difficult job even more difficult, by his

testimony, we do not find that there is sufficient evidence from

which this Court can conclude that he has been unable to assist

in the preparation of the presentation of the issues on his petition

for post-conviction relief.” (S.R. Vol. 21 at 1361.) The Indiana

Supreme Court upheld this determination. Matheney II, 688

N.E.2d at 893.

sional, has always made it difficult to work with him,

but it has not made it impossible. This court’s conclusion that the petitioner was and remains competent in

the legal sense makes it unnecessary to explain our

further conclusion that competency of the petitioner was

not required before the appeal or petition for postconviction relief could be resolved.

(A.R. 11; Exh. C at 51-55) (endnotes omitted).

The Indiana Supreme Court affirmed the lower court’s

determination of Matheney’s competency to stand trial:

“Given the psychiatrists’ determinations before trial, trial

counsels’ own opinions of Matheney’s competency, and Dr.

Berkson’s earlier determination of Matheney’s competency,

trial counsel were not ineffective for failing to follow up

their request for a determination of competency with a

formal motion for a hearing on Matheney’s competency.”

Matheney II, 688 N.E.2d at 899.1

 Thus, the Indiana courts,

in adjudicating the effectiveness of Matheney’s state trial

and appellate counsel, directly addressed and determined

Matheney’s competency to proceed at trial.

Matheney then brought a federal habeas claim under 28

U.S.C. § 2254 in the Northern District of Indiana. That

court denied Matheney’s request for an evidentiary hearing

on his competency, but then conducted a lengthy de novo
No. 03-1739 9

review of the “massive” record. The district court ultimately

made its findings:

On the basis of all of the facts stated above, this court

finds that Matheney was competent to stand trial under

the Dusky standard. He understood the facts of the

situation and he understood the consequences of trial

and sentencing. Additionally, he provided some assistance to his counsel, perhaps not as much as they would

choose, but not completely unhelpful. Importantly, none

of his counsel, including the very experienced lead

counsel, felt that he was incompetent. This court does

not doubt that these very able lawyers would have

raised the incompetence issue had it been appropriate.

Although this court is well aware of Mr. Matheney’s

beliefs as to the alleged relationship between his former

wife and the prosecutor of St. Joseph County, this court

does not find that those beliefs so impeded Matheney’s

appreciation of his situation as to render him incompetent to stand trial. Thus, his due process right to be

tried as a competent individual was not violated. . . . As

Matheney was competent, his attorneys failure to raise

the issue did not prejudice him and thus was not

violative of his Sixth Amendment rights to effective

assistance of counsel.

Matheney III, 60 F. Supp. 2d at 862-63.

In Matheney IV, we unfortunately did not take note of the

post-conviction trial court’s lengthy evidentiary hearing and

extensive “Findings of Fact and Conclusions of Law” when

we observed that the Indiana state courts had not properly

considered Matheney’s due process competency claim.

Matheney IV, 253 F.3d at 1039. We mistakenly understood

that the Indiana courts had refused to allow “the majority

of Matheney’s attempts to file pleadings” on the issue of

competency. Id. Finally, we were wrong when we stated in

Matheney IV that: “The federal district court concluded that
10 No. 03-1739

Matheney had not received a full and fair evidentiary

hearing on his competency to stand trial from the Indiana

state courts[.]” Id. Agreeing with this faulty premise, we

remanded this case to the district court for a full evidentiary hearing on Matheney’s competency at the time of the

original trial.

On remand, the district court again considered all of the

relevant evidence from the trial record, the post-conviction

review record, and the federal habeas record. This evidence—

much of it discussed in Matheney IV, Matheney III, and

Matheney II—included medical evidence and opinions from

all of the mental health experts, attorneys, and family

members familiar with Matheney.

Also, the district court considered additional evidence submitted by the defense and prosecution. Matheney’s counsel

submitted a November 20, 2002 videotaped deposition of

Dr. Helen Morrison, who had served as defense expert in

the original trial, and who had also been deposed for the

post-conviction proceedings in 1994. Dr. Morrison concluded

in her deposition that Matheney was not competent to

stand trial because he was “not able to rationally understand what he needed to do to provide a defense” and he did

not “trust his attorney because [Matheney believed the

attorney] was part of the court system” and therefore part

of the conspiracy against him. Dr. Morrison based her

conclusion on her assessment that Matheney suffered from

paranoid delusions.

The state of Indiana submitted only a memorandum

which noted that Matheney refused a psychological test on

March 30, 1989 on the advice of counsel. After the evidentiary hearing on November 27, 2002, but before the district

court’s opinion denying habeas relief, Matheney himself

filed two handwritten notes that discussed his current conspiracy theories. The district court considered these submissions as well.
No. 03-1739 11

After examining all of the evidence, the district judge

concluded, as he had in Matheney III, that Matheney had

been competent to stand trial in 1990. In part because he

was competent, the district court also concluded that it was

not ineffective assistance on the part of Matheney’s trial

attorneys not to pursue an incompetency claim at trial, nor

was it error on the part of the trial judge to not consider

Matheney’s competency sua sponte. Matheney appeals the

first two determinations—competency and ineffective

assistance of counsel—but not the trial judge’s failure to

sua sponte broach the competency question.

II. Analysis

A. Standard of Review

Respondent Anderson asserts that 28 U.S.C. §§ 2254(d)(1)

and (2) should guide our inquiry into Matheney’s competency to stand trial. Section 2254(d) is part of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

a statutory scheme that is extremely deferential to statecourt adjudications. It is clear that AEDPA is applicable to

Matheney’s habeas petition, as the petition was filed after

April 24, 1996, the effective date of the statute. See Lindh

v. Murphy, 521 U.S. 320 (1997). Matheney, however, insists

that § 2254(d) deference is inappropriate under the particular circumstances of his case.

Matheney argues that: (1) the state courts did not reach

the merits of the competency issue; (2) even if the state

reached the merits, their findings should be ignored because this court, in Matheney IV, ordered the district court

to conduct an evidentiary hearing; and (3) the Indiana

court’s post-conviction assessment of Matheney’s competency was retrospective and therefore invalid. We will

address each argument in turn.

First, succinctly put, as our summary of the Indiana postconviction review process establishes, both the post-con-
12 No. 03-1739

viction trial court and the Indiana Supreme Court squarely

addressed Matheney’s competency claims and found him to

be competent and determined that his trial counsel were

not ineffective. Section 2254(d) deference applies.

Second, our case law is clear in holding that § 2254(d) “is

applicable even though the district judge held an evidentiary hearing.” Pecoraro v. Walls, 286 F.3d 439, 443 (7th

Cir. 2002); see also Valdez v. Cockrell, 274 F.3d 941, 954

(5th Cir. 2001) reh’g en banc denied, 288 F.3d 702 (2002).

But see Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir.

1998). “The evidence obtained in such a hearing is quite

likely to bear on the reasonableness of the state courts’ adjudication . . . but we do not see why it should alter the

standard of federal review.” Pecoraro, 286 F.3d at 443.

Finally, we note that an after-the-fact state-court inquiry

into competency to stand trial is subject to § 2254(d) deference, Young v. Walls, 311 F.3d 846, 848-49 (7th Cir.

2002), and the Indiana courts, in retrospectively analyzing

the effectiveness of Matheney’s trial and appellate counsel,

concluded that Matheney had been competent to stand trial.

Thus, each of Matheney’s arguments fails, and we will

apply § 2254(d) deference to the state court’s determinations.

28 U.S.C. § 2254(d) reads:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in the State court proceedings unless the 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
No. 03-1739 13

(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.

28 U.S.C. § 2254(d) (emphasis added).

Under (d)(1), we follow the methodology established by

the Supreme Court in Part II of Justice O’Connor’s concurrence in Williams v. Taylor, 529 U.S. 362, 402-13 (2000), to

determine whether the state court either came to a decision

contrary to clearly established Supreme Court law or made

an unreasonable application of clearly established Supreme

Court law. See Ward v. Sternes, 334 F.3d 696, 703-04 (7th

Cir. 2003). Under (d)(2), “relief may be had where the

petitioner can show by clear and convincing evidence that

the state court’s factual determinations were unreasonable.”

Harding v. Walls, 300 F.3d 824, 828 (7th Cir. 2002) (citing

28 U.S.C. § 2254(e)(1) and explaining that courts refer to

(e)(1) for the petitioner’s burden of proof when that petitioner

tries to make a (d)(2) showing of unreasonable state court

factual determinations).

We review the district court’s findings of fact for clear

error and its conclusions of law or mixed questions of fact

and law de novo. Harding,300 F.3d at 827.

B. Competency to Stand Trial

“It is well-settled that a defendant may not be tried

unless he has ‘sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding—and . . . a rational as well as factual understanding of

the proceedings against him.’ ” Benefiel v. Davis, 357 F.3d

655, 659 (7th Cir. 2004) (quoting Dusky v. United States,

362 U.S. 402 (1960)); see also Drope v. Missouri, 420 U.S.

162, 171-72 (1975).

Matheney knew he had killed his ex-wife, knew the nature of the proceedings against him, and knew the death
14 No. 03-1739

2 Other experts have testified as to Matheney’s competency at

other stages of his life. Dr. Berkson, one of the state-appointed

mental health experts who evaluated Matheney’s sanity at his

original trial, testified that “he had examined Matheney two years

[before the murder trial] in relation to a previous criminal matter

and had found Matheney competent at that time.” Matheney II,

(continued...)

penalty was a possible consequence of his actions. Furthermore, Matheney provided assistance to his trial counsel

with facets of the defense. Matheney understood the judicial

process, testified coherently about trial strategy under examination by a magistrate at the post-conviction hearing,

took direction from counsel not to participate in mental health

examinations unless authorized by them, restrained himself

from any detrimental outbursts in court, and consulted with

his attorneys concerning the factual considerations of his

case. These findings of fact have overwhelming support in

the record.

Matheney stubbornly insisted that his crimes should be

excused because his ex-wife “deserved it” and that anyone

who failed to see things this way must be in on the conspiracy against him. Matheney’s unreasonable conspiracy

theory—understandably rejected by his counsel as poor trial

strategy—does not inexorably lead to a legal conclusion of

incompetency. “[P]ersons of unquestioned competence have

espoused ludicrous legal positions.” United States v. James,

328 F.3d 953, 955 (7th Cir. 2003) (holding that the articulation of unusual legal beliefs does not imply incompetency).

Matheney’s trial attorneys were certainly frustrated by

Matheney’s recalcitrance, but this frustration is not enough

to satisfy the legal definition of incompetency.

We note that Matheney’s expert, Dr. Morrison, the only

medical expert to directly express a legal conclusion on

Matheney’s competency to stand trial, concluded that

Matheney was incompetent.2

 That testimony is certainly
No. 03-1739 15

2 (...continued)

688 N.E.2d at 899. On the other hand, Dr. Smalldon, Matheney’s

expert witness at the post-conviction proceedings, testified that

Matheney was legally incompetent at the time of the post-conviction proceedings.

not the only factor to be considered, however. See Benefiel,

357 F.3d at 660 (deferring to trial judge’s assessment that

petitioner was competent despite lone expert testimony in

petitioner’s favor). Dr. Morrison’s expert opinion has been

given due consideration. But other evidence has also been

considered, including the testimony of the other experts, the

testimony of Matheney’s trial attorneys, the post-conviction

testimony of Matheney himself, and the rest of the evidence

in the record. See United States v. Collins, 949 F.2d 921,

926 (7th Cir. 1991) (noting that the statements of defendant’s attorneys and the defendant himself are appropriate

evidence for the trial judge to consider when evaluating

competency).

We agree with the trial court, the Indiana Supreme

Court, and the district court that Matheney was indeed

competent to stand trial. Matheney was able to rationally

consult with his attorneys about his crimes and the trial.

He also had the ability to rationally understand the proceedings in which he was involved. He was able to assist in

the preparation of his defense. Matheney’s attorneys

testified that Matheney was able to follow their directions,

suggest witnesses, and discuss the case. Matheney himself

testified at his post-conviction proceeding that he understood the legal issues presented by his counsel and that he

agreed with some of the issues and disagreed with others.

Even Dr. Morrison’s deposition makes clear that Matheney

was able to understand the role of his attorneys, that he

understood the nature of the proceedings against him, and

that he could factually describe the events of the day he

killed his ex-wife.
16 No. 03-1739

Fundamentally, Matheney disagreed with his attorneys

about the proper scope of his trial. He wanted to expose his

perceived mistreatment at the hands of his ex-wife and a

local prosecutor; he thought this would win jury sympathy

and improve his chances of winning a favorable result (or,

at least, a less unfavorable result, i.e., life in prison). His

lawyers dismissed this strategy as irrelevant and pursued

a defense of insanity (Matheney disagreed with this assessment of his mental well-being). His lawyers also wished to

investigate and present significant evidence about

Matheney’s childhood and background. Matheney considered this information to be irrelevant to the case. This sort

of disagreement between lawyers and a client does not

amount to legal incompetency. The Indiana courts, in retrospectively deeming Matheney to have been competent at his

trial, did not unreasonably apply established Supreme

Court precedent.

C. Ineffective Assistance of Counsel

As noted above, because the state court in Matheney II found

trial counsel to be effective in representing Matheney, we give

this determination the deference due to it under 28 U.S.C.

§ 2254(d). See United States v. Pierson, 267 F.3d 544, 557

(7th Cir. 2001) (noting that the AEDPA provides for clear

error review of state court Strickland adjudications because

of the inherent “element of deference to counsel’s choices in

conducting the litigation” in combination with the “layer of

respect” added by 28 U.S.C. § 2254(d)(1)).

In order to show ineffective assistance, Matheney must

show both deficient performance by his trial attorneys and

prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).

To show prejudice, Matheney must demonstrate a “reasonable probability that . . . the result of the proceeding would

have been different” had his trial counsel raised the competency issue. Strickland, 466 U.S. at 694.
No. 03-1739 17

Because we agree with the state courts’ finding that

Matheney was competent to stand trial, it follows that the

state courts did not err in concluding that Matheney’s trial

attorneys provided effective assistance. The post-conviction

trial court and the Indiana Supreme Court did not unreasonably apply Strickland, or unreasonably determine the

facts surrounding Matheney’s representation before his original trial. Thus, even if we were to assume that the trial

attorneys’ performance was deficient in not demanding a

contemporaneous competency examination and hearing,

Matheney’s ineffective assistance claim would fail on the

prejudice prong.

III. Conclusion

For the foregoing reasons, the district court’s denial of

Matheney’s petition for habeas corpus relief under § 2254

is AFFIRMED.

ROVNER, Circuit Judge, dissenting. When Matheney was

initially brought to trial for this crime, his lawyers sought

a determination of his sanity and his competency. The

court, however, ordered only a determination of his sanity,

and none of the trial attorneys in the case appeared to even

notice. In fact, examination of the record in this case reveals

repeated instances in which attorneys and judges involved

in that trial and his subsequent appeals blur the two, as if

the determination that he was not legally insane at the

time of the offense somehow also established that he was

competent to stand trial.
18 No. 03-1739

As the majority points out, the competency issue eventually was addressed by the post-conviction court in its seventy-nine page “Findings of Facts and Conclusions of Law”.

The length resulted from the sheer quantity of issues raised

by Matheney and his counsel in that proceeding. There

were 96 in all. The portion addressing the competency issue

spans only a few pages and in fact has been reproduced in

its entirety in the majority’s opinion. In it, the court

considered Matheney’s competence at trial and post-trial.

The court properly identified the test as whether (1)

Matheney understood the nature of the proceedings and (2)

was able to assist in the preparation of his defense. I will

discuss only the second factor, as the record sufficiently

supports the finding that Matheney understood the nature

of the proceedings. However, in determining that Matheney

was able to assist in his defense, the post-conviction court

rejected the only psychiatric testimony on that issue.

Dr. Morrison conducted a psychiatric examination of

Matheney at the time of the trial (and in fact testified at

trial that Matheney was not legally insane at the time of

the offense because he could distinguish between right and

wrong even though he could not conform his conduct.) PostConviction Record (PCR) at 1592. She diagnosed Matheney

as suffering from paranoid disorder with psychosis delusion.

She testified at length regarding details of that diagnosis as

well as its impact on his thought processes and

its progression over time. She further stated that in her

professional opinion, Matheney would not be able to rationally consult with his lawyers. Id. at 1590. In so stating,

she emphasized that the delusion he maintained interfered

with any ability to look at the realistic facts of his case and

what was necessary for the trial because everything to him

remained a conspiracy. She further declared that over time

she would expect the delusions to become even more fixed

and to include more individuals, and that his attorneys

would become part of the paranoid conspiracy. Id. at 1595-

96.
No. 03-1739 19

Similarly, at the time of the post-conviction proceeding,

Dr. Smalldon examined Matheney over a 2-day period, and

submitted a 16-page report to the post-conviction court with

his assessment. He concluded that Matheney’s thinking was

delusional, and his paranoid and persecutory ideas were

fixed and rigid, completely refractory to logical or persuasive appeals. Dr. Smalldon further stated that one effect of

that delusional worldview was his inability to rationally

discuss his legal situation except in terms of his own rigid,

delusional version of reality. Dr. Smalldon concluded that

it was his professional opinion that Matheney was not

competent to assist his post-conviction attorneys. In fact,

Dr. Smalldon testified that Matheney’s “willingness to work

with me at all, not only to collaborate with formal testing,

but even to engage with me in a discussion of this case was

entirely contingent on my willingness to remain within his

extremely cramped, claustrophobic view of his case and to

refrain from challenging in any way his beliefs about the

reality of his situation.” Id. at 1260.

The post-conviction court provided very little reasoning in

rejecting the only psychiatric testimony on the issue. The

court stated that the one trial attorney who had the best

rapport with Matheney and represented him on appeal

found him frustrating and single-minded, but that Matheney

was able to provide counsel with details of everything that

preceded and followed the murder even if not the murder

itself. That was the extent of the court’s analysis of the

second factor. The only other clue as to the court’s reasoning appears in an earlier statement that “[m]ost significantly, counsel has stated that petitioner was substantively

involved in the trial process even if he wasn’t as helpful as

another client might have been.”

Under the AEDPA, the competency determination cannot

stand if it is an unreasonable application of the law to the

facts, or if it is based upon an unreasonable determination

of the facts in light of the evidence presented to the state
20 No. 03-1739

court. 28 U.S.C. § 2254(d)(1) & (2); Harding v. Walls, 300

F.3d 824, 828 (7th Cir. 2002); Ward v. Sternes, 334 F.3d

696, 703-04 (7th Cir. 2003). “A state court decision that rests

upon a determination of fact that lies against the clear

weight of the evidence is, by definition, a decision ‘so inadequately supported by the record’ as to be arbitrary and

therefore objectively unreasonable.” Ward, 334 F.3d at 704,

quoting Hall v. Washington, 106 F.3d 742, 749 (7th Cir.

1997). That standard is met here. A number of attorneys

testified in this case. All of them provided testimony consistent with the diagnoses by Drs. Morrison and Smalldon.

Scott King was the lead counsel in the trial and appears

to be the attorney referenced by the post-conviction court

when determining that Matheney was able to assist in his

defense. It is curious that King’s testimony is the only evidence relied upon by the court in making the assessment of

Matheney’s competence at the time of the trial, particularly

given the procedural history of this case. King was not

appointed as counsel for Matheney until February 1990,

and the trial took place a mere two months later. Nevertheless, the post-conviction court mentions only King— by

description rather than by name—in finding competency,

with no mention of the testimony provided by other counsel

and the investigator who worked with Matheney for nearly

a year more than King, from March 1989 through the trial.

Setting that aside for the moment, King’s testimony

provides no basis for rejecting the psychiatric testimony and

concluding that Matheney was competent at the trial. King

testified as to Matheney’s persistent belief that his ex-wife

and Barnes had been engaged in a conspiracy against him,

and that if people outside the conspiracy learned of that

conspiracy, they would find that his ex-wife’s death was

justified. King referred often to Matheney as being unhelpful in discussing the murder or the merits of the case,

further stating that communication with Matheney was

helpful in one way—in that his written and verbal state-
No. 03-1739 21

ments and inability to focus on matters outside that

delusion provided support for the insanity defense. For

instance, when asked whether Matheney was involved in

devising the defense, King responded that his time spent

with Matheney and reading what Matheney wrote was “a

primary factor in the defense ultimately relied on [insanity]

. . . . In terms of him being at all helpful, in terms of the

merits of the allegations that he killed his wife, no.” PCR at

1626. Similarly, when asked if Matheney was able to help

in preparing for cross-examination, King noted that “in

addition to lacking the typical objectivity, he also had a

particular dent [sic] completely away from the case” focused

on the conspiracy with Michael Barnes and his ex-wife. Id.

at 1628. As a result, King testified that he was not helpful

in preparing for cross-examination of state witnesses, but

“[i]n the sense of between his writings and between his

conduct, okay, supporting the use of the insanity defense,

yeah, that was helpful to dictate that.” That cannot support

the post-conviction court’s decision that Matheney could

assist in his defense. It would be ironic indeed if a defendant’s irrational behavior was interpreted as “assisting in

his defense,” thus rendering him competent to stand trial,

because it gave counsel further evidence that he was

insane. King recounts repeatedly Matheney’s fixation on his

delusion, and his inability to engage in discussions outside

of that delusion. There is in fact little in King’s testimony to

support the court’s conclusion that Matheney provided

substantial assistance. Because the post-conviction court

provided no details as to what testimony supported its

finding of competency, it is difficult to address precisely the

issue, but the testimony by King contains nothing that

would support the court’s dismissal of the psychiatric

opinions. In fact, King testified on a number of occasions

that he concurred with Dr. Morrison’s assessment of

Matheney. King’s ultimate assessment of Matheney was

that he was “singularly focused on the case as he defined it.

Which was an ongoing saga of injustice promulgating from
22 No. 03-1739

his then incarceration. And that’s his definition of the case.”

That portrayal meshes with the analyses of Dr. Morrison

and Dr. Smalldon, and does not provide a basis for a finding

of competency.

Moreover, the testimony of others involved in the trial

and post-trial process further contradict the competency

determination. Although the post-conviction court appeared to

rely solely on King’s testimony, other counsel including

Charles Lahey also testified. He was counsel for Matheney

from March 1989, nearly a year before King joined the

defense team. Significantly, Lahey was the person whom

King identified as the one he relied upon for insight into

Matheney.

Lahey testified extensively about the inability to communicate with Matheney outside his delusion. For instance,

Lahey testified that Matheney was actively planning his

defense, but that defense was that his ex-wife “deserved it”

because of the conspiracy between herself and Barnes, and

that if the information would just be made public, then he

would be vindicated. Id. at 1500. Lahey was unable to reason with him regarding the effectiveness of that defense. Id.

Lahey stated that the decision to pursue the insanity

defense was partly based on Matheney’s inability to assist

him in any defense other than the one upon which

Matheney was focused. Id. at 1514.

One illustration of Matheney’s singular focus on that

defense was his insistence on a change of venue. Lahey

argued against the motion with Matheney, based in part on

his view that no jury in St. Joseph County had ever returned a capital punishment verdict, and that the judge in

the case was as compassionate and reasonable a person as

he could hope to have deciding the issue. Id. at 1528. Lahey

felt that obtaining a change in venue to Lake County, which

was one of only two counties that had returned capital

punishment verdicts, was signing his own death warrant.
No. 03-1739 23

Id. Lahey was unable to reason with Matheney, however,

who believed that the court system in St. Joseph County

was controlled by Barnes, the prosecutor in that county,

and that if he could be tried in an outlying county, the jury

would hear what he had to say and decide that his actions

were justified. Id. at 1520. Matheney ultimately succeeded

in obtaining that change of venue. Lahey thus provides a

concrete example of a defense decision by Matheney made

based on his conspiracy delusion, impervious to the rational

advice of his attorneys. Lahey further recounted that after

his opposition to that motion, Matheney no longer trusted

him, which is also consistent with Dr. Morrison’s prediction

that his attorneys would eventually be added to the conspiracy, perpetuating the delusion. Lahey concluded that

Matheney was obsessed with his conspiracy defense, unable

to work with him on any evidence other than along those

lines, and was of no assistance whatsoever on the legitimate

issues that existed in the case. Id. at 1543. Lahey appeared to

be unfamiliar with the second prong of the competency test,

stating that he did not label it as a problem of competence,

because “maybe a psychiatrist would say that was because

of his obsessive behavior but it wasn’t because he was

bouncing off the walls and didn’t know what day it was or

who I was,” which of course relates to the first part of the

test. Id. Lahey’s testimony establishes that Matheney met

the first factor of competency, that he understood the

nature of the proceedings, but not the second one, that he

was able to assist in his defense.

In addition, the record contained an affidavit from Steven

Radde, a private investigator who worked for 10-13 months

for the defense in the Matheney case, and who spent a

considerable amount of time with Matheney. Id. at 2056.

One of Radde’s assignments was to locate and interview

numerous witnesses brought to the defense team’s attention

by Matheney. Radde stated that in their conversations,

Matheney
24 No. 03-1739

talked almost exclusively about proving there was a

conspiracy between Lisa Bianco and Michael Barnes.

Virtually all of the witnesses he requested we find were

witnesses he said would help prove the conspiracy. He

insisted that no other issues existed or mattered. I do

not believe that Mr. Matheney ever understood that his

theory of defense was irrational and unsympathetic. He

insisted to the end that his conduct was justified, and

that if the existence of the conspiracy against him was

shown, the world would agree and he would be exonerated. Mr. Matheney was unable to assist me in my role

as part of the defense team in any meaningful way. His

assistance was limited to providing lengthy lists of

names of people he believed would provide support for

his own theory of how the case should be tried.

Id. at 2056-57.

Finally, the two attorneys for Matheney in post-conviction

relief also testified that Matheney was unable to assist in his

own defense. Yet the same post-conviction court held that

he was competent in that proceeding as well. Steven

Schutte—co-counsel with Jeffrey Merryman, Jr., testified as

to Matheney’s intractable fixation with the conspiracy, and

the difficulties in trying to establish trust with Matheney.

Schutte declared that his representation of Matheney was

a constant balance between conducting the investigation

that the case required and gaining enough trust with

Matheney to proceed properly. Id. at 1334. Each step in one

direction cost him in the other. Id. at 1334. Schutte testified

that to try and establish trust with Matheney, he investigated some of Matheney’s “conspiracy” claims. Id. at 1332.

He further noted that Matheney had tens of thousands of

pages of documents in his possession, but would not let his

lawyers see all of them. Matheney decided when Schutte

would view them and in what order, because Matheney

feared that if Schutte viewed them out of order or out of

context, Schutte might not understand the significance to his
No. 03-1739 25

conspiracy case. Id. at 1332-33. Trust issues impacted Schutte

in other ways as well. For instance, Matheney signed some

authorization and release forms early in the representation,

but later refused to sign any more. Id. at 1333. Furthermore,

Matheney acted on his own, filing, for example, a witness list

that contained 206 names, and trying to control who Schutte

contacted. Schutte’s attempts to investigate the case

properly by contacting relevant persons would have the

problematic effect of adversely impacting his efforts at

gaining Matheney’s trust. He testified that Matheney was

not competent.

His co-counsel, Merryman, represented Matheney for

three years and also concluded that Matheney was unable

to speak with him rationally about his case. Matheney

refused to discuss with Merryman anything that he did not

consider relevant to the his case, which he defined as the

conspiracy between his ex-wife and the prosecutor. That

included information about what Matheney did the day of

the crime and his background, both of which related to his

mental health. Id. at 1332-33. Along similar lines,

Matheney would not tell them who his friends were and

instructed his family not to cooperate with his lawyers. Id.

at 1326. Merryman concluded by trying to provide some

perspective on the problem. He stated that he had practiced

law for nine years and had been a trial level Public Defender. As a result, he was familiar with difficult clients

and clients who elected not to cooperate for various reasons;

however, he had never litigated competency before. As he

put it, he had

never felt that [his] client’s obstreperousness or difficulty ha[d] been a result of anything other than a free

will of decisions. Mr. Matheney’s case, I truly believe

that he does not have the free will to make the decisions on whether or not to talk to me about any issues

involved in this case. This is not a difficult client. I have
26 No. 03-1739

had difficult clients before. This is a sick, client, unfortunately. He’s a very, very sad man.

Id. at 1334-35.

The post-conviction court did not find the trial attorneys,

post-conviction attorneys, or investigator incredible. The

court did not weigh the testimony of the witnesses, determining that some were in a better position to assess

Matheney’s ability to assist in his defense. In fact, the court

did not even identify with precision the testimony that

convinced it to find competency despite the psychiatric

testimony. Instead, the court merely focused on one attorney, King, without distinguishing or discrediting the

testimony of the other persons who represented Matheney.

King had, by far, the least amount of time on the case before trial—2 months—as opposed to the nearly 13 months

that co-counsel had worked with Matheney, and a similar

amount for the investigator who testified regarding competency. Moreover, King repeatedly testified that Matheney

was unable to aid in his defense on the merits, and that he

was helpful only in that his behavior cemented the notion

that the best defense was insanity. King further testified,

on multiple occasions, that he agreed with Dr. Morrison’s

assessment. Dr. Morrison testified to the post-conviction

court that based on her examination of Matheney at trial,

he was not able to rationally consult with his attorneys. The

decision of the post-conviction court finding competency was

an unreasonable application of the law to the facts, and was

based upon an unreasonable determination of the facts in

light of the evidence presented to the State court. Therefore,

that decision cannot stand even under the more deferential

AEDPA standard.

Although the majority relies primarily on the post-conviction court’s finding in denying habeas relief, the other

court decisions on the issue fare no better under scrutiny.

First, as the majority points out, the Indiana Supreme
No. 03-1739 27

Court held that: “Given the psychiatrists’ determinations

before trial, trial counsel’s own opinions of Matheney’s competency, and Dr. Berkson’s earlier determination of

Matheney’s competency, trial counsel were not ineffective

for failing to follow up their request for a determination of

competency with a formal motion for a hearing on Matheney’s

competency.” Matheney II, 688 N.E.2d at 899. None of the

psychiatrists in the trial, however, rendered any opinion

regarding competency, and the Indiana Supreme Court

provides no explanation as to why their opinions regarding

whether he was legally insane at the time of the crime

should impact the determination of whether he was presently able to assist in his defense. This is especially true

considering that at least two of those psychiatrists ultimately recognized a mental illness, paranoid personality

disorder, and the other did not only because he astonishingly believed that hallucinations were a necessary symptom

of every mental illness. Moreover, the determination by Dr.

Berkson two years prior in an unrelated criminal proceeding that he was competent provides no support for a

decision to forego the competency determination in this

trial. That earlier determination reflected concerns at that

time as well about his competency. In fact, an attorney who

worked with Matheney at that time wrote to the St. Joseph

Probation department prior to Matheney’s sentencing,

expressing his opinion that Matheney’s personality had

deteriorated “since and due to his incarceration.” PCR at

2068. By that deterioration, he:

meant that Alan had become less rational than he had

been in the months before his incarceration. His questioning of me was less relevant to his specific legal problems

the more I saw him, and he seemed to become increasingly unable to focus on the real issues in his legal difficulties. He had also become obsessed with the wrongs he

perceived Lisa Bianco was perpetrating on him.
28 No. 03-1739

Id. at 2069. Considering that the mental illness diagnosed

by Dr. Morrison at trial was one that results in progressive

deterioration, that earlier question of competence should

have cautioned his trial attorneys as to the need for a

competency determination, rather than absolving them of

that issue as the Indiana Supreme Court held. Finally, and

perhaps most tellingly, his attorneys did not determine that

a competency determination was unnecessary. They

determined that it was necessary, and sought it from the

court. When the court failed to instruct the psychiatrists to

render an opinion on competency, however, they failed to

follow up and obtain that opinion. Instead, they appeared to

operate from the mistaken belief that the decision regarding

Matheney’s legal sanity was dispositive of the competency

issue. Those are two very different, unrelated inquiries.

Moreover, even in their subsequent testimony, these attorneys indicated a fundamental misunderstanding of the

two prongs of the competency determination, believing that

Matheney was competent if he understood the nature of the

proceedings even though repeatedly also testifying that he

could provide no assistance whatsoever on the legitimate

issues that existed in the case because he was singularly

focused on the conspiracy delusion. The Indiana Supreme

Court accepted those legal conclusions as evidence of his

competence, without addressing that their testimony in fact

established that the second part of the competency test was

not met. The record demonstrates that Matheney’s attorneys simply “dropped the ball” on the competency issue,

failing to pursue it even though they had already raised the

necessity of a competence determination with the trial

court. The Indiana Supreme Court’s decision is unsupported

by the record, and an objectively unreasonable application

of the law.

Finally, the district court’s decision cannot support the

majority’s holding in this case. In determining that

Matheney was competent, the district court rejected Dr.
No. 03-1739 29

Morrison’s testimony as not addressing the “accurate test of

competency.” Dist. Ct. 2/18/03 Order at 35. According to the

district court, Dr. Morrison opined that the delusions

rendered Matheney incapable of rationally assisting in his

defense. The court then stated: “However, the test does not

require that a defendant be able to rationally assist in his

defense, just that he possess a present ability to consult

with counsel with a reasonable degree of rational understanding.” Id. at 36. That seems a meaningless distinction

in that it is difficult to conceive of a situation in which a

defendant can consult with rational understanding but

cannot assist in his defense, but the district court relied on

that distinction alone to reject the testimony of Dr. Morrison.

The use of that wording as a basis for rejecting her testimony would be questionable in any case, given that the

clear import of Dr. Morrison’s substantial testimony was

that Matheney was unable to operate outside his delusion

and therefore could not assist in addressing the real issues

in the case. Nevertheless, even within that literal approach to

testimony, the district court’s holding cannot stand. First,

Dr. Morrison in fact testified that Matheney was unable to

rationally consult with his lawyers because the delusion

that he maintained interfered with his ability to look at the

realistic facts of the case and the reality of what was

necessary for his defense. PCR at 1590. Additionally, even

if the district court had been right in characterizing Dr.

Morrison’s testimony, that would have been a proper

opinion of competency. In Drope v. Missouri, 420 U.S. 162,

171 (1975), the Supreme Court stated that “[i]t has long

been accepted that a person whose mental condition is such

that he lacks the capacity to understand the nature and

object of the proceedings against him, to consult with

counsel, and to assist in preparing his defense may not be

subjected to a trial.” [emphasis added]. Therefore, a defendant

may not be subject to trial unless he can both consult with

counsel and assist in preparing the defense, contrary to the

district court’s contention. See also Matheney II, 688 N.E.2d
30 No. 03-1739

at 899 (“A defendant is not competent to stand trial when he

is unable to understand the proceedings and assist in the

preparation of his defense. Ind.Code Ann. § 5-36-3-1(a)

(West 1986).”) Because the district court relied on an

unsupported legal distinction in rejecting the only psychiatric testimony on the issue of Matheney’s trial competence, its decision is erroneous as a matter of law.

In conclusion, the testimony in the record by Matheney’s

attorneys, his trial investigator and the psychiatrists provide significant, even overwhelming, evidence that he was

unable to rationally consult with them and assist in his

defense. The post-conviction court’s reliance on isolated statements by one attorney to find competence is against the

clear weight of the evidence. That court failed to reconcile

its holding with the consistent testimony of that attorney,

co-counsel, the investigator and the psychiatrist that

Matheney was unable to assist counsel on any legitimate

issues in that case. The trial attorneys in fact recognized

that Matheney’s competence was at issue, but failed to

follow through at trial. Moreover, their testimony on postconviction revealed their misunderstanding as to the standards of competency, with a belief that he was competent if

he could understand the nature of the proceedings, even

though he was totally incapable of assisting them on the

legitimate issues in the case. Matheney has met the

Strickland standard, demonstrating a “reasonable probability” that the result would have been different if his attorneys had pursued the competency issue, and accordingly

I disagree with the majority’s conclusion that the prejudice

prong of Strickland was not met. Therefore, I respectfully

dissent.
No. 03-1739 31

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-29-04