### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3282

F REDRICK A. L AUX

,

Petitioner

‐ Appellant

,

v.

D USHAN Z ATECKY

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 14

‐ CV

‐ 340

— Sarah Evans Barker

, Judge

.

____________________

A RGUED F EBRUARY 21, 2018

— D ECIDED M AY 17, 2018

____________________

Before R IPPLE

, K ANNE

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. In 2002, Fredrick Laux broke into

his ex

‐ wife’s home and murdered her with a crowbar. A jury

in Grant County, Indiana, decided that the aggravating

circumstance of Laux’s crime—that he committed murder

during a burglary—outweighed the primary mitigating

circumstance—that he had no criminal history. The jury

recommended a sentence of life without parole, which the

state trial judge imposed. The Indiana state courts affirmed2 No. 16

‐ 3282

Laux’s convictions and sentence. After a post

‐ conviction

hearing, they also rejected the claim that his trial counsel

provided ineffective assistance in violation of the Sixth

Amendment to the U.S. Constitution.

In 2014, Laux filed a federal petition for a writ of habeas

corpus. The district court denied the petition. On appeal, Laux

contends that his trial counsel was ineffective by not fully

investigating and presenting all of the available mitigating

evidence about Laux’s childhood that surfaced at his 2011

post

‐ conviction hearing. If his trial counsel had presented all

of these details in 2002, Laux argues, there is a reasonable

chance that the jury would not have recommended a sentence

of life without parole. We affirm the judgment of the district

court. The state courts’ conclusion that Laux received effective

assistance of counsel was not unreasonable.

I. Factual Background and Procedural History

A. The Murder Trial and Penalty Phase

Laux’s state public defender said at the outset of his post

‐

conviction proceeding, “there is really no doubt about who

killed Heidi Laux. And this trial”—the subject of Fred Laux’s

ineffective assistance claims here—“was all about what

punishment Mr. Laux was set to receive” for what he did to

his ex

‐ wife.

After eleven years of marriage and a period of separation,

the couple divorced in November 2001. Distraught by the

divorce, and increasingly disturbed by the prospect that Heidi

had found a new partner, Laux made a romantic gesture

toward Heidi on Valentine’s Day in 2002. He was rebuffed.

Heidi and Laux, along with their two daughters, attended a

social event the next evening where “Laux becameNo. 16

‐ 3282 3

increasingly suspicious that Heidi was involved with a co

‐

worker.” Laux v. State

, 821 N.E.2d 816, 817 (Ind. 2005) ( Laux I ).

Laux returned home and put his daughters to bed, but

remained fixated on Heidi’s new life without him. The

Indiana Supreme Court explained what happened next:

Around 3 a.m. the following morning, Laux awoke and

decided to “fix” Heidi. He dressed in two pairs of

sweatpants, a sweatshirt, gloves, a hat, and a ski mask.

He collected a flashlight and a crowbar and ran to

Heidi’s house.

Upon arrival, Laux used the crowbar to pry open a coal

chute and gain entrance to Heidi’s house. He entered

the basement through the chute and made his way

upstairs. Laux proceeded to Heidi’s bedroom, struck

her three times with the crowbar, strangled her, and

left. She died from her injuries within twenty minutes.

The State charged Laux with murder, felony murder,

and burglary resulting in bodily injury. It later

requested a sentence of life in prison without parole.

After a three

‐ day trial, the jury found Laux guilty on

all counts and recommended life in prison without

parole. The trial court merged Laux’s murder and

felony murder convictions and sentenced him to life in

prison without parole for the murder and a

consecutive term of twenty years for the burglary.

Id. at 817–18 (footnotes omitted). Because Laux contends that

his trial counsel was ineffective in failing to ward off a life

sentence, we focus on the penalty stage of his trial.

In Indiana, “life without parole is imposed under the same

standards and is subject to the same requirements” as4 No. 16

‐ 3282

imposing the death penalty. Ajabu v. State

, 693 N.E.2d 921, 936

(Ind. 1998). This meant that with no dispute as to guilt, Laux’s

trial came down to the penalty phase where the jury

considered the aggravating and mitigating circumstances that

surrounded the crime. See Ind. Code § 35–50–2–9(b), (c), (d).

By statute, if a jury finds that aggravating circumstances

outweigh mitigating circumstances and thus decides to

recommend life without parole, its recommendation must be

accepted by the trial judge at sentencing. § 35–50–2–9(e).

In the penalty phase of his trial, Laux’s jury heard evidence

that he broke in to Heidi’s house that night intending to beat

her with his crowbar and kill her, and possibly also to rape

her. This undisputed evidence was the basis for Laux’s

burglary conviction, which in turn was the aggravating

circumstance under § 35–50–2–9(b)(1)(B) for his murder

conviction.

As for mitigating circumstances, Laux qualified for only

one of the seven circumstances specified by statute—no prior

criminal conduct. § 35–50–2–9(c)(1). The law also permitted

the jury to weigh any “other circumstances appropriate for

consideration.” § 35–50–2–9(c)(8). Laux’s trial counsel used

this opportunity to present him as a devoted father and

devout Catholic of above

‐ average intelligence who, in the

words of a psychiatrist, had been overtaken by a “severe

mental disease at the time of the offense” (i.e., “major

depression”).

Because Laux was found to be sane at the time of the

offense, his mental condition did not qualify as one of the

express mitigating circumstances under the law. See § 35–50–

2–9(c)(6). Jurors heard from two experts about Laux’s episode

of depression and related medications. These expertsNo. 16

‐ 3282 5

formally testified as the State’s witnesses, though they had

been appointed by the trial court at the behest of Laux’s trial

lawyer, who reviewed their written reports ahead of their

testimony. Both Dr. Parker (a psychiatrist) and Dr. Atkinson

(a psychologist) had interviewed Laux and studied his

personal history and mental health. Though their diagnoses

differed somewhat, both experts rejected the idea that Laux’s

mental

‐ health struggles caused him to commit the murder.

Laux’s lawyer called as a witness a priest who had known

Laux for over fifteen years, since Laux had been a student at

Purdue University. In the priest’s judgment, Laux was a

particularly devoted Catholic. The priest also shared that

because Laux was so distraught after the police came to

inform him of Heidi’s death, the priest had to inform Laux’s

young daughters about their mother’s murder. After the

priest’s testimony, Laux’s lawyer called a Catholic school

teacher who had one of Laux’s young daughters in her class.

She reported that Laux was a devoted father and active in

their parish. Finally, Laux himself took the stand to express

his remorse and to (try to) explain his actions.

In his closing statement in the penalty phase, Laux’s trial

lawyer stressed that Laux had no history at all of violent

behavior or criminal activity. His lawyer repeated that even if

it did not legally amount to a defense, Laux had a “severe

mental disease” according to the experts. “I understand the

State wants you to ignore that,” his lawyer continued, “but

that’s a fact, that’s what was said by the doctors and those are

doctors

... that’s not my diagnosis.” “[D]on’t just totally

discount that and throw that in the trash. That’s the whole

reason we did this trial was to get that story before you.”6 No. 16

‐ 3282

Laux’s lawyer summed up by reminding the jurors that

Laux “had something go seriously, tragically wrong with his

thinking that night

... all I’m asking you to do is weigh that as

a [factor in] mitigation [regarding]

... whether he should go

to jail for the rest of his life. You can’t discount that and say it

didn’t happen.” The jury recommended life without parole.

B. Post

‐ trial Procedural History

1. State Court Proceedings

a

. Direct Review

Laux appealed his life

‐ without

‐ parole sentence directly to

the Indiana Supreme Court, which has jurisdiction over such

appeals. Ind. App. R. 4(1)(a). Before rendering a decision,

however, the Supreme Court remanded Laux’s case to the

state trial court for additional findings in light of Ring v.

Arizona

, 536 U.S. 584 (2002), Apprendi v. New Jersey

, 530 U.S.

466 (2000), and a conforming change in state law specifying

that aggravating circumstances must be proven beyond a

reasonable doubt. Ind. Code § 35–50–2–9( l ); see also Corcoran

v. Neal

, 783 F.3d 676, 678 n.2 (7th Cir. 2015); Laux I

, 821 N.E.2d

at 818, 821; id. at 824 (Sullivan, J., dissenting). The Indiana

Supreme Court decided in 2005 to vacate a no

‐ contact order

that had been imposed to prevent Laux from contacting

Heidi’s family and his children, but otherwise affirmed Laux’s

sentence. Laux I

, 821 N.E.2d at 818–23.

Justice Sullivan dissented, finding that the mitigating

circumstances (as presented by Laux’s trial lawyer) warranted

a sentence “less than life without parole.” Id. at 825 (Sullivan,

J., dissenting). Laux’s “blemish

‐ free legal history throughout

his childhood and adulthood” in Justice Sullivan’s view

entitled Laux to “consideration upon committing a firstNo. 16

‐ 3282 7

offense,” even one of this magnitude. Id. Since “absence of

criminal history is the weightiest of all mitigating

circumstances,” and “following graduation from high school

and Purdue University, Laux was hard

‐ working, honest, and

responsible,” Justice Sullivan would have found that the

aggravating circumstance of burglary did not compel life

without parole. Id. He believed sixty

‐ five years in prison was

a more appropriate sentence, given the presence of weighty

circumstances on both sides. Id.

b

. Post

‐ Conviction Review

In line with the normal practice in Indiana, see Brown v.

Brown

, 847 F.3d 502, 512–13 (7th Cir. 2017), Laux did not argue

ineffective assistance of counsel on direct review of his

sentence. He first raised those arguments in the post

‐

conviction petition he filed in 2005 and later amended in 2011.

See Laux v. State

, 985 N.E.2d 739, 743–44, 743 n.1 (Ind. App.

2013) ( Laux II ). To develop a record for these claims nine years

after trial, the state public defender representing Laux called

his trial lawyer, his appellate lawyer, his sister, Dr. Parker (the

psychiatrist), a juror, and an acquaintance who once worked

for Laux at a retail store. Though Laux raised a host of issues

in his state post

‐ conviction proceedings, he has focused our

attention in this appeal on just one issue: whether his trial

lawyer provided ineffective assistance by failing to

investigate fully and present mitigating evidence with respect

to his childhood and family history.

On this score, the state public defender elicited the

following evidence at the post

‐ conviction hearing. Laux’s trial

lawyer had about ten years of legal experience at the time, but

he had never before served as lead counsel on a murder case

as of the fall of 2002. As part of the lawyer’s preparation, he8 No. 16

‐ 3282

reviewed the Indiana Public Defender Council’s life

‐ without

‐ parole materials since, in his recollection, “I don’t think” a

trial like Laux’s “had been something that anyone [around]

here had done before.” He prepared for the penalty phase of

Laux’s trial as he had for other cases, by speaking to Laux

himself “about his history and his family and who he thought

... would be beneficial” to call as a witness in mitigation.

Laux’s lawyer could not remember clearly whether he had

spoken to Laux’s family members, but thought he had at least

seen some correspondence from Laux’s sister. Laux’s lawyer

also requested court

‐ ordered psychological examinations for

his client, and he reviewed the resulting written reports

before examining Dr. Parker and Dr. Atkinson at trial. 1

Although Dr. Atkinson had passed away between Laux’s

trial in 2002 and his post

‐ conviction hearing in 2011, her pre

‐

trial report was discussed at length in the post

‐ conviction

hearing. Dr. Atkinson had reported before trial that Laux’s

father had been an alcoholic whose drinking had caused

financial problems for the family. Laux’s mother had been

present but emotionally distant from the children; she was

later diagnosed with paranoid schizophrenia after Laux and

his three sisters had reached adulthood. Dr. Atkinson

repeated Laux’s characterization of his relationship with his

siblings by saying “he and his sisters were close and ‘clung’

1 If the accused intends to pursue an insanity defense in Indiana, the

court must appoint at least two mental health experts. See Frentz v. Brown

,

876 F.3d 285, 291 (7th Cir. 2017); see also Ind. Code § 35–36–2–2 (2002). As

noted, Laux did not qualify for an insanity defense, but by requesting

mental

‐ health examinations, his lawyer made it possible for the jury to

hear independent expert opinions about his personal history and mental

‐

health struggles.No. 16

‐ 3282 9

together because of the lack of support and interest from the

parents.”

Laux’s sister Paula added more details to this story when

she testified at the post

‐ conviction hearing in 2011. Paula

reported that “money was real tight growing up” because of

their father’s drinking and spending habits. Laux’s father

would often be nude around the house, and he took his

children along when he went to see R

‐ rated and even X

‐ rated

movies. Paula also testified that their mother had gotten a job

at a canning factory when the children were adolescents, but

by 1991 when Laux was an adult, her paranoia had grown

worse and culminated in hospitalization and her

schizophrenia diagnosis. The parents’ marriage was far from

a happy one, but it did not become physically abusive. When

the two would fight, their daughters would “wait to see if it

got violent. And it never did.” Though Paula admitted that

she did not remember a lot about her childhood, and

speculated that she had “blocked a lot of it out,” she had no

opportunity to share these details at Laux’s trial because no

one from his defense team had ever interviewed her.

Dr. Parker testified last, and much of his testimony was

devoted to criticizing the diagnosis Dr. Atkinson had

presented at trial: that Laux suffered from anti

‐ social

personality disorder. Though Dr. Parker had not met with

Laux since his pre

‐ trial interview almost a decade before, he

described Laux as having “a very limited range of emotion.”

Dr. Parker opined at length that Dr. Atkinson had

misinterpreted Laux’s cold, distant demeanor as a lack of

remorse, resulting in a misdiagnosis. On this point, post

‐

conviction counsel and Dr. Parker had the following

exchange:10 No. 16

‐ 3282

Q. Earlier you stated the lack of remorse could have

other alternative explanations besides being anti

‐

social since in your opinion, Mr. Laux is not anti

‐

social, what are those?

A. Mr. Laux comes from a dysfunctional family. His

father was an alcoholic throughout his upbringing.

His mother

... had pre

‐ morbid schizophrenia[.]

...

So if he grew up in a family where the display of

emotion was not encouraged, was not shown, was

not modeled, and it was not welcome as far as I can

tell, he reacted as many first children of alcoholics

do by working very hard and trying to be as

successful as possible[.]

... So I think the reserve,

the difficulty with emotions, has a better

explanation in his family, and the dynamics of that

family, than in calling it a lack of remorse.

Dr. Parker acknowledged, though, that when he analyzed

Laux before trial, he knew Laux’s mother had suffered from

late

‐ onset mental illness. Dr. Parker also did not retreat from

his own diagnosis—that Laux was depressed, but the murder

was not related to his depression.

The state trial court denied post

‐ conviction relief in a

thorough order. Supp. App. 392–402. After discussing the

Strickland standard, the post

‐ conviction judge explained point

by point why none of Laux’s claims of ineffective assistance

merited relief. The court briefly described the penalty phase

and noted that Laux’s one undisputed mitigating

circumstance (no criminal history) was not overlooked. The

mitigating evidence advanced at the post

‐ conviction stage,

the judge concluded, would also not have made a differenceNo. 16

‐ 3282 11

to the Indiana Supreme Court when it weighed Laux’s

sentence on direct review.

The Indiana Court of Appeals—whose decision we review

here under 28 U.S.C. § 2254(d)(1)—affirmed the post

‐

conviction court in all respects. Laux II

, 985 N.E.2d at 755.

Citing Strickland and related state cases repeatedly, the state

appellate court found that “Laux was provided effective

representation of counsel at the penalty phase,” id. at 751, and

commented that the “pursuit of mental health evidence to

support his mitigation [case] was sound strategy” on the part

of trial counsel, id. at 754, even if the jury did not in the end

find for Laux.

The appellate court rejected Laux’s argument that his

lawyer was ineffective for failing to put on childhood

mitigation testimony. It decided that “the evidence presented

through Laux’s sister was not mitigating” because in the

opinion of the Indiana judiciary, “such family anecdotes have

little, if any, mitigating value.” Id. at 752. Even if they did, “the

evidence of Laux’s childhood and background fail[s] to show

so much as significant hardship,” especially since Laux

himself was never abused and later became a productive

adult. Id. at 752. The Indiana Supreme Court denied transfer.

987 N.E.2d 521 (Ind. 2013). 2

2 Because the Indiana Supreme Court’s summary denial of transfer

did not specifically address Laux’s Strickland claims, we “‘look through’

the unexplained decision to the last related state

‐ court decision that does

provide a relevant rationale” for denying his federal claims. See Wilson v.

Sellers

, 138 S. Ct. 1188, 1192 (2018). The decision of the state court of

appeals, then, is the one we examine here under § 2254(d)(1).12 No. 16

‐ 3282

2. Federal Court Proceedings

In 2014, Laux filed a pro se habeas corpus petition in

federal court. He raised four claims that echoed his claims in

the state courts. The district court found one claim

procedurally defaulted and rejected the other three on the

merits, including the claim that Laux’s trial lawyer had been

ineffective during the penalty phase of his trial. The court

found that “the unpresented mitigation evidence discussed

above is not nearly as compelling as the types of childhood

mitigation evidence the Supreme Court has found to be

prejudicial.” App. 46. As a result, the district court concluded

under 28 U.S.C. § 2254(d)(1) that the state court’s Strickland

analysis was not unreasonable; it was instead “eminently

reasonable” for the Court of Appeals to deal with the

unpresented evidence and expert post

‐ conviction testimony

as it did.

II. Analysis

A. Habeas Corpus Review of Ineffective Assistance of Counsel

in State Court

Our standard of review in this context is familiar. “We

review the district court’s decision denying habeas relief de

novo,” but must give significant deference to state court

decisions adjudicating federal constitutional claims on the

merits. Carter v. Duncan

, 819 F.3d 931, 940 (7th Cir. 2016).

Under the Antiterrorism and Effective Death Penalty Act

(AEDPA) of 1996, we must give effect to state court decisions

on the merits of a claim “unless the adjudication of the

claim—

... resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly establishedNo. 16

‐ 3282 13

Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

A claim for ineffective assistance of counsel adds another

layer of deference in our review. The defendant or petitioner

must show “that counsel’s performance was deficient” in that

it was objectively unreasonable under the circumstances (the

performance prong), and the defendant or petitioner must

also show that such “deficient performance prejudiced the

defense” (the prejudice prong). Strickland v. Washington

, 466

U.S. 668, 687, 688 (1984). This inquiry into a lawyer’s

performance and its effects turns “on the facts of the

particular case,” which must be “viewed as of the time of

counsel’s conduct.” Lockhart v. Fretwell

, 506 U.S. 364, 371

(1993), quoting Strickland

, 466 U.S. at 690.

As for the performance prong, because “it is all too easy to

conclude that a particular act or omission of counsel was

unreasonable in the harsh light of hindsight,” Strickland

directs courts to adopt “a ‘strong presumption’ that counsel’s

conduct falls within the wide range of reasonable professional

assistance.” Bell v. Cone

, 535 U.S. 685, 702 (2002), quoting

Strickland

, 466 U.S. at 689. The prejudice prong requires the

defendant or petitioner to “show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”

Strickland

, 466 U.S. at 694.

When these standards are combined, the deference given

to the state court decision under review is considerable. “The

text of § 2254(d)(1)

... suggests that the state court’s decision

must be substantially different from the relevant precedent

of” the Supreme Court to lose deference, which in cases

involving Strickland

, is not lost even when a state decision is14 No. 16

‐ 3282

at odds with “the federal court’s conception of how Strickland

ought to be applied in that particular case.” Williams v. Taylor

,

529 U.S. 362, 405, 406 (2000). Indeed, the Supreme Court has

said that in such cases the “question is whether there is any

reasonable argument that counsel satisfied Strickland ’s

deferential standard.” Harrington v. Richter

, 562 U.S. 86, 105

(2011).

B. Strickland Claims Involving Mitigating Evidence

The Strickland protections apply not only in criminal trials

but also at sentencing, where the defendant’s counsel is

expected to offer a case to mitigate punishment. See Cone

, 535

U.S. at 697–98; Fretwell

, 506 U.S. at 366; Strickland

, 466 U.S. at

686–87; see also Griffin v. Pierce

, 622 F.3d 831, 843–45 (7th Cir.

2010). The Supreme Court has taught that defense counsel has

an “obligation to conduct a thorough investigation of the

defendant’s background” in advance of such proceedings,

with an eye toward evidence that speaks in the client’s favor.

Williams

, 529 U.S. at 396. Evidence tending to show that the

accused had survived a “childhood

... filled with abuse and

privation,” that the accused suffered from developmental

limitations, or that his “violent behavior was a compulsive

reaction rather than the product of cold

‐ blooded

premeditation” can all be relevant to a “jury’s appraisal of his

moral culpability,” and thus the sentence. Id. at 398.

This duty to present mitigating evidence goes beyond

facts that will directly “undermine or rebut the prosecution’s

... case” regarding the crime because mitigating evidence

“may alter the jury’s selection of penalty” even if it is purely

biographical. Id

. For their part, state courts applying Strickland

to mitigation cases must be sure to “evaluate the totality of the

available mitigation evidence” in deciding whether counselNo. 16

‐ 3282 15

was ineffective. Id. at 397–98; see also Porter v. McCollum

, 558

U.S. 30, 41 (2009); Baird v. Davis

, 388 F.3d 1110, 1115 (7th Cir.

2004) (discussing state court responsibilities in assessing

mitigating circumstances).

This means that counsel in a penalty phase is responsible

for reasonably investigating the defendant’s background and

must present useful mitigation evidence, unless counsel

decides not to pursue certain approaches for reasonable

strategic reasons. The Supreme Court explained this

requirement in Wiggins v. Smith :

In finding that [counsel]’s investigation did not meet

Strickland ’s performance standards, we emphasize that

Strickland does not require counsel to investigate every

conceivable line of mitigating evidence no matter how

unlikely the effort would be to assist the defendant at

sentencing. Nor does Strickland require defense

counsel to present mitigating evidence at sentencing in

every case.

... [However,] “strategic choices made after

less than incomplete investigation are reasonable” only

to the extent that “reasonable professional judgments

support the limitations on investigation.” Id.

, at 690–

691. A decision not to investigate thus “must be

directly assessed for reasonableness in all the

circumstances.” Id.

, at 691.

539 U.S. 510, 533 (2003), quoting Strickland

, 466 U.S. at 690–91.

We have applied this deferential reasonableness standard

before where counsel must decide how best to present mental

health expert testimony and diagnoses, and where further

development of that evidence could pose legal risks for the

client. See, e.g., Frentz v. Brown

, 876 F.3d 285, 293–95 (7th Cir.

2017).16 No. 16

‐ 3282

Strickland cases, especially in the mitigation evidence

context, are not easy for petitioners to win. This is especially

true where, as here, “the new evidence ‘would barely have

altered the sentencing profile presented’” in the trial court.

Porter

, 558 U.S. at 41, quoting Strickland

, 466 U.S. at 700. Yet,

in capital or life

‐ without

‐ parole cases, there is often at least

some basis for this kind of argument. With the benefit of

hindsight, a defendant can often point to some additional

subject and argue it should have been pursued further. The

Sixth Amendment does not require counsel to investigate

every conceivable line of mitigation evidence—it requires

counsel to make reasonable decisions about which matters to

pursue. Wiggins

, 539 U.S. at 533. We now turn to the decision

challenged in this appeal.

C. Reasonableness of the Laux II Decision

1. Trial Counsel’s Performance

The Laux II court recounted the same facts presented

above: Laux’s trial lawyer made efforts to educate himself

about the life

‐ without

‐ parole procedures. He reviewed expert

reports ahead of time, and he cross

‐ examined those experts

“thoroughly” in the penalty phase to help elicit mitigating

details. Laux II

, 985 N.E.2d at 751–52. Laux’s trial counsel also

“called two lay character witnesses, in addition to Laux, to

discuss Laux’s lack of criminal history, his mental instability

shortly before the murder, and his traits as a devoted father,

Catholic, and husband, in an effort to gain sympathy from the

jury.” Id. at 751. The court then discussed the post

‐ conviction

testimony from Dr. Parker, Laux’s sister, and his former co

‐

worker. Id. at 752. From all this the state court found that trial

“counsel’s focus on Laux’s mental health, devotion to his faith,

and children was a reasonable tactic to employ consideringNo. 16

‐ 3282 17

the de minimis value of the proffered childhood testimony.”

Id. at 753.

This analysis is not inconsistent with Cone

, Richter

, and

Williams

. The state court’s reasoning considered the entire

record and concluded that trial counsel provided objectively

reasonable assistance. This was not an unreasonable

application of Strickland

. While the record does not clearly

establish whether or not Laux’s trial lawyer ever spoke to his

sister, compare Supp. App. 273, with id. at 285, 347, counsel

arranged for the mental health experts’ evaluations, read

about Laux’s personal history and discussed it with him,

shaped expert and lay opinion testimony at trial to benefit

Laux, and highlighted for the jury Laux’s non

‐ violent past and

positive character traits.

The trial lawyer’s decision to leave the mitigation case at

that was not objectively unreasonable under Strickland

. The

mitigation evidence he presented, in fact, was enough for one

Justice of the Indiana Supreme Court to have agreed that the

aggravating and mitigating circumstances were in equipoise,

warranting appellate intervention. But in the end, this was a

minority view, and one that did not implicate Strickland

. See

Laux I

, 821 N.E.2d at 823–25 (Sullivan, J., dissenting). 3 The

3 Indiana’s appellate courts have substantial discretion to revise

sentences they believe are “inappropriate in light of the nature of the

offense and the character of the offender.” Laux I

, 821 N.E.2d at 824

(Sullivan, J., dissenting), quoting Ind. App. R. 7(B); see also Robinson v.

State

, 91 N.E.3d 574, 577 (Ind. 2018) (explaining that Article 7, Sections 4

and 6 of the Indiana Constitution grant this power). Justice Sullivan did

not reach any conclusion about whether the jury’s contrary view was

reasonable; his analysis simply concluded that Laux’s “absence of any18 No. 16

‐ 3282

Laux II court recounted all of these facts and reached the not

‐

unreasonable conclusion that Strickland did not require more

than what Laux’s lawyer did for him.

2. Prejudice to the Defendant

The state court’s decision on the prejudice prong was also

not unreasonable. Unlike Porter v. McCollum

, the new

mitigation evidence here “would barely have altered the

sentencing profile presented.” 558 U.S. at 41, quoting

Strickland

, 466 U.S. at 700. The state court adopted the State’s

view of this mitigation evidence:

... Laux’s trial counsel presented a penalty phase case

in which the jury saw a defendant who was

emotionally drained from a divorce with the woman

he still loved, accepted responsibility for his actions,

was suffering from mental defects, had an acute

momentary lapse of reason, genuinely regretted his

actions, had no prior criminal history, was educated,

had a strong work ethic, and had been a devoted father,

Catholic, and husband.

Laux II

, 985 N.E.2d at 752. In comparison, “the evidence of

Laux’s childhood and background fail[s] to show so much as

significant hardship.” Id. Since he was never “a victim of

abuse or neglect,” “was never in trouble,” and “excelled in

both high school and college,” the stories of his difficult

childhood were little more than “family anecdotes” in the

judgment of the state court. Id. There was no reasonable

probability, according to the state court, that the result of

prior criminal history” met his own standard for relief. Laux I

, 821 N.E.2d

at 825 (Sullivan, J., dissenting).No. 16

‐ 3282 19

Laux’s penalty phase would have been any different even if

Dr. Parker’s professional rebuttal had been offered and Laux’s

sister had testified. Id.

This was not an unreasonable application of Strickland

. In

Griffin v. Pierce

, we collected the relevant Supreme Court cases

finding that petitioners were prejudiced by their lawyers’

failures to present childhood mitigation evidence. 622 F.3d

831 (7th Cir. 2010). Laux’s childhood difficulties pale in

comparison to the “nightmarish” childhoods of those

petitioners:

Rompilla v. Beard

, 545 U.S. 374, 390–93 (2005)

(mitigation case built on evidence that petitioner was

raised in a “slum environment,” quit school at 16, and

had a serious drinking problem; test results pointed to

schizophrenia and other disorders;

... his parents were

severe alcoholics who drank constantly; there was no

expression of parental love, affection or approval, only

yelling and verbal and physical abuse;

... his mother

went missing frequently for several weeks at a time;

and he suffered from fetal alcohol syndrome); Wiggins

,

539 U.S. at 535 (petitioner suffered “severe privation

and abuse

... while in the custody of his alcoholic,

absentee mother,” physical torment, sexual

molestation, rape in foster care, homelessness, and

diminished mental capacities ...); Williams

, 529 U.S. at

395–96 (mitigation evidence included records of

“nightmarish childhood,” involving severe and

repeated beatings by petitioner’s father and criminal

neglect by both parents, placement in an abusive foster

home during parents’ incarceration, and petitioner was20 No. 16

‐ 3282

“borderline mentally retarded” and did not go beyond

sixth grade).

Id. at 844. Laux’s post

‐ conviction hearing record contains

nothing comparable. The state court thus did not

unreasonably apply Strickland within the meaning of

§ 2254(d)(1) when it decided that Laux’s childhood mitigation

evidence would likely have had minimal value to the jury.

In essence, Laux’s prejudice argument depends on the

proposition that the jury needed greater “context [for] his

limited emotional capacity,” the kind of context that Dr.

Parker later gave in his post

‐ conviction rebuttal to Dr.

Atkinson’s diagnosis. Appellant Br. at 42; see also Supp. App.

at 372–73. His emotional development, Laux contends, “was

stunted.” Appellant Br. at 43. This argument is essentially an

attempt to rebut the expert testimony actually presented in

the penalty phase (which gave no special moment to Laux’s

childhood) with other facts that those experts had in their

possession at the time. See id. at 43–44; Appellee Br. at 4; Supp.

App. at 2–3, 14–15, 49–52, 87–91. In other words, Laux now

wants to re

‐ write his psychological profile for this court. Since

the stringent AEDPA standard of review was designed to

“prevent federal habeas ‘retrials’ and to ensure that state

‐

court convictions are given effect to the extent possible under

law,” Cone

, 535 U.S. at 693, this argument is misplaced. The

state courts did not apply Supreme Court precedent

unreasonably when they found that Laux’s later

‐ discovered

childhood mitigation evidence did not undermine confidence

in the results of his original sentencing proceeding.No. 16

‐ 3282 21

3. Weighing Childhood Mitigation Evidence

Though the Laux II court’s weighing of the mitigation

evidence was not unreasonable under § 2254(d)(1), Laux does

raise one argument about that decision that is well

‐ taken. In

adopting the State’s analysis, the state court cited Ritchie v.

State

, 875 N.E.2d 706, 725 (Ind. 2007), for the proposition that

Indiana courts believe “evidence of a difficult childhood

warrants little, if any, mitigating weight.” Laux II

, 985 N.E.2d

at 752. Ritchie observed that although state courts must

consider childhood mitigation evidence as a matter of federal

law, Indiana courts generally do not give it much weight in

their analysis of prejudice under Strickland

. See 875 N.E.2d at

725, citing Williams

, 529 U.S. at 398. To explain why this

approach is troubling but does not deprive the Laux II

decision of the deference it is due under AEDPA, we first

describe Ritchie before returning to Laux II

.

The relevant portion of Ritchie dealt with appellate

counsel’s failure to make an argument under Indiana

Appellate Rule 7(B), which gives Indiana’s appellate courts

the equitable power to revise sentences they deem

inappropriate. The defendant in Ritchie shot and killed a

police officer. 875 N.E.2d at 713. The defendant’s childhood

was blighted by learning disabilities, trouble in school, an

unstable home environment, a suicide attempt, several

unfortunate head injuries, and other problems. Id. at 720–23.

Much of this evidence was presented in some form in the

penalty phase of Ritchie’s trial, but his post

‐ conviction

counsel later found additional reports and experts to

strengthen Ritchie’s inappropriateness argument. Id. at 719–

20. The Ritchie court concluded that the defendant had “failed

to show that the outcome of his direct appeal would have22 No. 16

‐ 3282

been any different had appellate counsel raised a 7(B)

challenge to his sentence” in light of the low weight Indiana’s

courts tend to give to childhood mitigation evidence. Id. at

726.

The problem here is that the Laux II court lifted Ritchie ’s

“little, if any mitigating weight” idea out of the Appellate

Rule 7(B) context, where it was offered as an empirical

description of the tendencies of the state’s appellate courts,

and applied it instead to a penalty

‐ phase factfinder who must

weigh all of the evidence in mitigation without such

preconceived notions. Federal law does not permit sweeping

generalizations about the likely weight of certain kinds of

evidence when assessing prejudice under Strickland in front

of a penalty

‐ phase jury.

Laux argues that the categorical Ritchie approach is

contrary to Wiggins

, where the Supreme Court declared that

the “mitigating evidence counsel failed to discover and

present” to the jury was “powerful” because it included

significant childhood abuse, torment, and “diminished

mental capacities.” 539 U.S. at 534, 535, 536. Likewise, the

portion of Williams that the Ritchie court cited criticized a state

court that “did not entertain [the] possibility” that a jury may

have been influenced by a “graphic description of Williams’

childhood, filled with abuse and privation.” 529 U.S. at 398.

Laux II ’s citation to Ritchie is troubling, but not decisive.

First, the approach indicated in Ritchie is not wrong as a

matter of clearly established federal law, but it can easily be

misapplied outside of Ritchie ’s peculiar context—the decision

‐

makers relevant to Ritchie ’s “little, if any, mitigating weight”

observation were state appellate judges exercising

discretionary state law power, not juries or trial judgesNo. 16

‐ 3282 23

finding facts in penalty phases, where Wiggins and Williams

apply. Second, though the analysis in Laux II blurs this

important distinction in a way that can be misunderstood, the

state court’s bottom

‐ line conclusion that Laux was not

prejudiced by his trial counsel’s penalty

‐ phase presentation is

still not unreasonable. 4

This approach noted in Ritchie is not contrary to Wiggins

, Williams, or Rompilla because it pertains to an equitable power

of state appellate courts that is separate and apart from

Indiana’s statutory capital sentencing process. Compare Ind.

App. R. 7(B) with Ind. Code § 35–50–2–9. Under either

process, any appropriate mitigating evidence may be

considered. See Ritchie

, 875 N.E.2d at 725; Ind. Code § 35–50–

2–9(c), (c)(8) (“The mitigating circumstances that may be

considered” by the factfinder (which is usually a jury) include

seven specified categories plus any “other circumstances

appropriate for consideration”). According to Ritchie

, state

appellate courts are reluctant to give childhood evidence

much weight in their appropriateness assessment. What this

4 As noted, Ritchie itself dealt with an overlooked Indiana Appellate

Rule 7(B) argument that did not end up prejudicing that defendant. See

Ritchie

, 875 N.E.2d at 726. However, it also cited a variety of cases saying

that childhood mitigation evidence receives little weight. Two of these

cases also involved appellate review of sentences under state law, and not

Strickland

. See id

. at 725, citing Peterson v. State

, 674 N.E.2d 528, 542–43

(Ind. 1996) (applying state constitutional provision implemented in Rule

7(B)), and Loveless v. State

, 642 N.E.2d 974, 976 (Ind. 1994) (reviewing

decision of sentencing judge, but analyzing that action in context of

Indiana Supreme Court’s “power to modify sentences”); see also Loveless

,

642 N.E.2d at 977, citing Harrington v. State

, 584 N.E.2d 558, 564–65 (Ind.

1992) (asking whether sentence was “manifestly unreasonable”). We

address Coleman

, the third case cited in Ritchie

, in note 6 below.24 No. 16

‐ 3282

actually means is that appellate counsel’s failure to make a

Rule 7(B) argument to an Indiana appellate court will rarely

be prejudicial if the argument centers on childhood mitigation

evidence. That’s because those claims typically fail anyway.

Ritchie did not comment on what Indiana juries or trial judges

sitting as factfinders will do in their deliberations under § 35–

50–2–9(c), and ( l ), which explicitly permit the factfinder to

consider such evidence and do not assign different weights to

different kinds of mitigating evidence. 5

If a state adopted a categorical rule preventing either

judges or juries from considering certain kinds of mitigation

evidence, that rule would be contrary to the expectation that

factfinders assess the full body of mitigation evidence, as

established in Wiggins and Williams

. See 539 U.S. at 534–35;

529 U.S. at 398; see also Baird

, 388 F.3d at 1115–16. If a state

were to assign pre

‐ determined weights to different kinds of

mitigating evidence, that might be problematic as well, given

that other Supreme Court decisions stress the need for

individualized determinations in imposing serious

punishments. See, e.g., Lockett v. Ohio

, 438 U.S. 586, 604–05

(1978). But simply acknowledging the empirical fact that a

state’s appellate courts are generally more receptive to certain

kinds of mitigating evidence than others when they make a

discretionary equitable determination under state law does

not raise concerns under § 2254(d)(1).

Thus the Laux II court should not have read Ritchie beyond

the context of Indiana Appellate Rule 7(B), where it raises no

5 Laux does not raise any ineffective assistance of appellate counsel

claims in this court

. The district court found those claims procedurally

defaulted. See App. at 34–36.No. 16

‐ 3282 25

federal law concerns, and applied it to a penalty

‐ phase jury

context where the Supreme Court has shown more concern

about jury determinations of “moral culpability.” See

Williams

, 529 U.S. at 398. Regardless of whether this reliance

on Ritchie was appropriate, however, Laux has not shown that

the state court’s bottom

‐ line conclusion on prejudice was

unreasonable within the meaning of § 2254(d)(1). 6

Conclusion

In Williams v. Taylor

, the Supreme Court spoke of a

hypothetical “run

‐ of

‐ the

‐ mill state

‐ court decision applying

the correct legal rule from our cases” that rejects a prisoner’s

claim. 529 U.S. at 406. At bottom, that is this case. The district

court was correct to deny habeas relief, and its decision is

AFFIRMED.

6 One case cited in Ritchie came much closer to running afoul of

Williams

, but not in a way that gives pause given its peculiar

circumstances. See 875 N.E.2d at 725, citing Coleman v. State

, 741 N.E.2d

697 (Ind. 2000). Coleman was decided on remand from the U.S. Supreme

Court in light of Williams v. Taylor itself, and its differences with Williams

are explained in detail. 741 N.E.2d at 698, 700–03. The U.S. Supreme Court

declined to take up Coleman again after this decision. Coleman v. Indiana

,

534 U.S. 1057 (2001) (mem.) (denying petition for writ of certiorari).

Though the Coleman court made reference to “our previous holdings

that a difficult childhood carries little mitigating weight,” Coleman

, 741

N.E.2d at 703 (by which the court presumably meant the state

‐ law cases

Peterson and Loveless

, see id. at 700–01), the facts in Coleman involved “a

predatory and unrepentant defendant who had two prior capital murder

convictions” and who also had a less compelling childhood mitigation

case than the defendant in Williams. Id

. at 703. Coleman ’s passing

observations about the general weight given to childhood mitigation

evidence are like those in Laux II —better left in the context of Rule 7(B),

but not critical to the state court’s eventual decision applying Strickland

.