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January 16, 1998


The opinion of the court was delivered by: BUCKLO

 Petitioner, Robert Smith, filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus to challenge his conviction on two counts of murder. For the following reasons, the Petition is denied.


 Following a jury trial in the Circuit Court of Cook County, Illinois, Mr. Smith was convicted of two counts of first degree murder and sentenced to two concurrent terms of natural life imprisonment. Mr. Smith appealed his convictions in the Illinois state court system through both the direct appellate review mechanism and the Illinois post-conviction relief statute. All of his state remedies have been exhausted.

 On April 3, 1997, Mr. Smith filed this habeas corpus petition. In his petition, Mr. Smith argues (1) ineffective assistance of trial counsel for failing to present evidence of his severe head injury, subsequent complications, and use of psychotropic medication; (2) that the trial court violated his right to due process by failing to hold a fitness hearing when he was under the influence of psychotropic medication; (3) ineffective assistance of trial counsel for failing to seek a fitness hearing; (4) ineffective assistance of appellate counsel for failing to raise claims (2) and (3) above; (5) that he was arrested for the murders without probable cause and thus, the physical evidence and statements obtained from him after his arrest were fruits of an illegal arrest; (6) that he was physically and mentally coerced into confessing; (7) that he did not voluntarily, intelligently, and knowingly waive his Miranda rights; (8) that he was not proved guilty beyond a reasonable doubt; and (9) that the Illinois Supreme Court is illegally constituted. These claims are reviewed under the habeas corpus statute as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996.

 Standard of Review

 Under Section 2254(d):

An application for writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in 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
(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). The "contrary to" provision of Section 2254(d)(1) pertains to questions of law. Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). A federal court on habeas review is free to express an independent opinion on all legal issues in a case to determine whether a state court decision has deviated from the Constitution. Id. The "unreasonable application" provision of Section 2254(d)(1) restricts habeas relief where "the dispute lies not in the meaning of the Constitution but in its application to a particular set of facts--when it is, in the standard phrase, a 'mixed question of law and fact.'" 96 F.3d at 870. This provision does not permit the federal court to express its independent opinion, rather, "it tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called 'unreasonable.'" Id. Where the state court offers a responsible and thoughtful answer after a full opportunity to litigate the question, a federal court on habeas review must accept that answer as adequate to support the judgment. Id. at 871. Thus, where a state court correctly identifies the applicable constitutional rule and asks the legally correct question, its fact specific answer cannot be called "unreasonable" even if it is wrong. Id. at 876-77.

 In determining whether a petitioner is entitled to relief under Section 2254(d)(2), the federal court will presume that factual determinations by a state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.

 Ineffective Assistance of Trial Counsel

 Mr. Smith claims that he was denied effective assistance of trial counsel as defense counsel did not present evidence of his head injury, related complications, and use of medication. His petition does not present any factual basis for relief on this ground, but presumably, he is reiterating his argument on direct appeal that the evidence would have rebutted the mental state for murder. The Illinois Appellate Court addressed this claim and denied it on the merits.

 To advance a successful claim of ineffective assistance of counsel, Mr. Smith must show (1) that counsel's performance was deficient under an objective standard of reasonableness, and (2) that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In determining whether counsel's performance was deficient, the court will ask whether counsel's conduct was within the wide range of professional competence demanded of attorneys in criminal cases. Id. at 688. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 76 S. Ct. 158 (1955)).

 If counsel's performance is deemed deficient, the court must still find that the defendant was prejudiced because of the deficiency. Mr. Smith must show that there is a reasonable probability that, but for counsel's unprofessional errors, the factfinder would have had a reasonable doubt respecting guilt. 466 U.S. at 695. In addition, Mr. Smith must demonstrate that counsel's errors deprived him of a fair trial. Lockhart v. Fretwell, 506 U.S. 364, 369, 122 L. Ed. 2d 180, 113 S. Ct. 838 (1993) "An analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Id. at 369.

 In examining the merits of this claim, the Illinois Appellate Court applied the Strickland standard of review. Therefore, the appellate court did not apply law "contrary to" federal law. The only question is whether the appellate court's decision "involved an unreasonable application" of the law.

 The appellate court found that Mr. Smith's defense at trial was that he did not murder his relatives. He consistently clung to the story that he was at a friend's house all night doing drugs and drinking alcohol. It was his position that his court-reported statement was the product of what the police told him to say as opposed to the compilation of facts about which he had independent knowledge. He said he agreed to cooperate with the police because the officers told him that if he did, they would let him see a doctor.

 Based on this finding, the appellate court determined that defense counsel's pursuit of Mr. Smith's medical condition would not have comported with the proffered defense. Pursuing the medical condition in an attempt to explain away the existence of the mental state for murder did not correspond with defense counsel's trial strategy that Mr. Smith was innocent of the murders. Thus, defense counsel's ...

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