Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 07 C 547-Richard L. Young, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before POSNER, KANNE, and ROVNER, Circuit Judges.
On August 26, 1998, Jeremy Gross shot and killed Christopher Beers while robbing a convenience store in Indianapolis. Gross was convicted of murder and sentenced to life in prison without parole, in accordance with a jury's recommendation. Gross claims that he received ineffective assistance of counsel because his attorney never advised him of his right to testify at the sentencing phase of his trial. The Indiana courts denied Gross post-conviction relief from his sentence, holding that he had suffered no prejudice from his counsel's conduct. Gross filed a petition for a writ of habeas corpus in the district court, which denied his claim because the state courts reasonably applied federal law. We now affirm.
In the early morning hours on August 26, 1998, Gross and accomplice Joshua Spears entered the Convenient Food Mart in western Indianapolis where Gross was a part-time employee. Gross, who had been smoking marijuana, brandished a gun and fired six rounds, striking the cashier Christopher Beers three times and mortally wounding him. Gross and Spears stole $650 from the store, ripped out the phone lines, grabbed the video recorder, and fled. Gross admitted to the robbery and shooting when he was arrested later that morning.
Gross was charged with murder, felony murder, conspiracy to commit robbery, and robbery. Defense lawyer Robert Hill was appointed to defend Gross. Hill and his team presented an intoxication defense at trial, but their primary focus was on the penalty stage of the proceedings.
Forty-two witnesses testified for the defense during the sentencing phase to tell the story of Gross's childhood. The testimony revealed that Gross and his sister had suffered physical violence, sexually inappropriate interactions, and rampant substance abuse. At one point, Gross's mother Cindy sprayed lighter fluid onto a couch where his father was sleeping and lit it on fire. After his parents divorced, Gross was forced to share his home with a variety of undesirable house guests, including a child molester and a prostitute who slept nude on the couch with assorted men. At times during his childhood, Gross did well in structured environments such as foster care, a youth center, and the Indiana Boys School, but he always returned to his mother's care, where he inevitably reverted to a life of drinking and drugs.
Gross did not testify before the jury. The only time the jury heard him speak was in excerpts from a taped news conference introduced into evidence. The jury convicted Gross and unanimously recommended a sentence of life in prison without parole.
On June 9, 2000, the court conducted a sentencing hearing. The judge employed a two-phase analysis to determine the appropriate sentence. First, he addressed the state's argument that the court should override the jury's recommendation and impose the death penalty. The judge agreed with the jury that the state had proved an aggravating factor-the intent to kill-beyond a reasonable doubt, and that aggravating factors outweighed mitigating factors. Nonetheless, the court declined to impose the death penalty.
The court then proceeded to the second phase and conducted its own analysis to determine whether the sentence should be life without parole or a term of years. The court heard testimony regarding victim impact, and Gross expressed his remorse and apologized to Beers's family. After considering this testimony and the information contained in the presentence investigation report, the court sentenced Gross to life in prison without parole for the murder charge.*fn1
Gross filed a Petition for Post Conviction Relief, alleging that his trial counsel was ineffective due to his failure to apprise Gross of his right to testify at the sentencing phase of trial. At a post-conviction relief*fn2 hearing on March 18, 2005, Hill, Gross's trial counsel, testified to the following:
Q: Did you ever discuss with Jeremy the possibility of testifying at this trial?
A: I don't remember discussing with [sic] Jeremy. I'm sure we did it and I'm sure I just told him ...