Anthony Mertz v. Tarry Williams , 771 F.3d 1035 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3268
ANTHONY MERTZ,
Petitioner-Appellant,
v.
TARRY WILLIAMS, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 4174 — Matthew F. Kennelly, Judge.
____________________
ARGUED SEPTEMBER 17, 2014 — DECIDED NOVEMBER 18, 2014
____________________
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. Anthony Mertz was sentenced to
death in 2003 for the murder of Shannon McNamara. In
2011, Illinois Governor Pat Quinn commuted his sentence to
life imprisonment without the possibility of parole. Mertz
now brings this appeal of the district court’s denial of his ha-
beas petition alleging ineffective assistance of his sentencing
counsel for failing to rebut evidence that Mertz committed
an uncharged murder, as well as an uncharged arson. With-
2 No. 13-3268
out addressing whether Mertz’s counsel’s performance was
deficient, the district court held that Mertz could not show
the necessary prejudice under Strickland v. Washington, 466
U.S. 668 (1984), to succeed on his claim for relief. We affirm.
I. Background
A. Factual Background
On June 12, 2001, Shannon McNamara’s roommate found
her dead in their college apartment. McNamara was naked
from the waist down, and her shirt and bra were pulled up
over her face. A washcloth was stuffed inside of her mouth,
and a piece of a latex glove was discovered near her head.
McNamara had a large cut down the center of her abdomen,
bruises to her face, and a fractured neck. The right lobe of
her liver was lacerated as a result of blunt force trauma.
McNamara’s body also bore knife wounds to her throat, gen-
itals, and back. McNamara’s bedroom window screen was
cut, and investigators discovered both a razor blade and an
empty box cutter handle in the apartment. Near the bath-
room—where investigators believe McNamara died—
investigators discovered a credit card bearing the name “An-
thony Mertz.” One block from McNamara’s apartment, in-
vestigators discovered a knife in a dumpster covered in
McNamara’s blood. McNamara’s roommate informed police
that the knife was part of a set that she and McNamara kept
in their kitchen.
Police eventually arrested Mertz for McNamara’s mur-
der. Mertz claimed that he had been drinking with friends
the night that McNamara was killed, and that he could not
remember anything after a certain point in the evening. In an
initial interview with police, investigators noticed that Mertz
No. 13-3268 3
had scratches on his head and throat, bruises on his arm, and
red knuckles; Mertz told police that he was injured after
breaking a shot glass. Tests on DNA scrapings from under-
neath McNamara’s fingernails were inconclusive, but did
not exclude Mertz as a contributor. Multiple pairs of latex
gloves were found in Mertz’s apartment, and a box cutter
went missing from his place of employment the day that
McNamara was killed. In February 2003, a jury convicted
Mertz of aggravated criminal sexual assault, home invasion,
and first-degree murder in connection with McNamara’s
death. He was eligible for the death penalty because he
committed the murder in the course of committing other fel-
onies.
At sentencing, the government presented evidence that,
prior to the McNamara murder, Mertz committed sexual
and/or physical assaults on at least four other women, in ad-
dition to two men as well as two fellow inmates. The gov-
ernment put forth additional evidence that Mertz committed
the unsolved and uncharged 1999 murder of a woman
named Amy Warner. Mertz told friends—albeit in a joking
manner—that he committed the crime, and also kept a
newspaper article about the murder in his apartment. A wit-
ness also placed a car matching the description of Mertz’s
girlfriend’s car at Warner’s apartment on the night of her
death. Additionally, the government drew a number of par-
allels between the McNamara and Warner murders. Officer
Joe Siefferman testified at sentencing that both victims had
their arms extended beyond their heads, both had injuries to
their throats, and both appeared to be “posed” by their kill-
ers after their death. Both women were attacked on a Tues-
day in June while they were asleep. No useful fingerprints
were found at either crime scene.
4 No. 13-3268
The government also offered evidence that Mertz com-
mitted the unsolved and uncharged arson of Unique Apart-
ments—a partially constructed apartment building located
across the street from Mertz’s home. It burned down in Feb-
ruary 2000, but because of the damage to the structure, the
cause of the fire could not be determined. However, the as-
sistant fire chief testified that there was no source of ignition
in the structure and that the rapid progression of the fire im-
plied the use of an accelerant, suggesting a possible arson.
Four of Mertz’s friends heard Mertz claim responsibility for
the fire. Mertz confirmed that he made these statements, but
denied committing the crime.
Furthermore, the government submitted evidence that
Mertz’s computer contained nude photos of his former girl-
friends, nude photos of female children, and bestiality pho-
tos. The jury heard further evidence that Mertz used the
screen name “Cereal Kilr 2000,” admired Hitler and Timothy
McVeigh, and that his computer contained articles on racism
and drug manufacture, as well as images of white pride
symbols and Nazi flags.
In response to the government’s aggravating evidence,
Mertz’s lawyers called twenty-five witnesses to offer miti-
gating testimony. The jury heard how Mertz lived in terrible
conditions with his biological mother until the age of one,
after which he and his three sisters went to live with their
grandmother. When Mertz was in third or fourth grade, he
went to live with his father and stepmother. Mertz’s sisters
testified that their stepmother occasionally beat them, and
that their stepsister sexually molested them. After high
school, Mertz entered the Marine Corps. While in the Ma-
rines, Mertz was treated for alcoholism; he was also promot-
No. 13-3268 5
ed to Corporal, but then demoted and court-martialed for
using methamphetamine. He then received an honorable
discharge. Mertz’s lawyers also presented the testimony of
two women with whom Mertz had relationships during his
time in the Marines. Both testified that Mertz was not violent
and that he wanted to attend college to become a history
teacher.
The jury heard additional evidence that following his
time in the Marines, Mertz attended Eastern Illinois Univer-
sity, where he continued to struggle with alcoholism. He
sought help at several treatment centers where he was treat-
ed for drinking and depression. Mertz’s lawyers also called a
clinical forensic psychologist and mitigation specialist—Dr.
Mark Cunningham—to testify that Mertz suffered from nu-
merous developmental factors that increased his tendency to
commit crimes. However, Mertz’s lawyers did not offer any
evidence to rebut the claims that Mertz committed the mur-
der of Amy Warner or the arson of Unique Apartments.
B. Procedural Background
After just three hours of deliberation, the jury sentenced
Mertz to death, as well as an additional sixty-year sentence
for an exceptionally brutal home invasion. Mertz appealed
his death sentence directly to the Illinois Supreme Court,
which affirmed his sentence. Mertz then filed a state post-
conviction petition in the Coles County Circuit Court. With-
out an evidentiary hearing, the Circuit Court held that
Mertz’s constitutional rights were not violated. Mertz ap-
pealed the denial of his state postconviction petition directly
to the Illinois Supreme Court. But before the Illinois Su-
preme Court heard Mertz’s case, Governor Quinn commut-
ed Mertz’s death sentence to life imprisonment without the
6 No. 13-3268
possibility of parole, and Mertz’s case was transferred to the
Illinois Appellate Court. The Appellate Court then dismissed
Mertz’s appeal on the basis that, as a matter of Illinois law,
Mertz’s sentencing claims were moot because the Gover-
nor’s commutation “removes the judicially imposed sen-
tence and replaces it with a lesser, executively imposed sen-
tence.” People v. Mertz, No. 4-11-0247 (Ill. App. Ct. Sept. 9,
2011) (citing People v. Williams, 807 N.E.2d 448, 452 (Ill.
2004)).
Mertz filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254 in the Northern District of Illinois alleging,
among other things, that his trial counsel was ineffective at
sentencing. The district court reviewed Mertz’s ineffective
assistance claim de novo, and found that even if Mertz’s
counsel was ineffective (an analysis in which the district
court did not engage), Mertz did not demonstrate prejudice
under Strickland. Mertz appeals.
II. Discussion
We review the district court’s denial of Mertz’s habeas
petition de novo and its factual findings for clear error. Mo-
rales v. Johnson, 659 F.3d 588, 599 (7th Cir. 2011).
A. Application of 28 U.S.C. § 2254(d)
In reviewing a habeas petition, a district court generally
may not grant relief on a claim that was previously adjudi-
cated by a state court unless that decision “was contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law,” or was based on an unreasonable de-
termination of facts. 28 U.S.C. § 2254(d)(1)–(2). However, if a
state court did not adjudicate a claim on the merits, a district
court reviews that claim de novo.
No. 13-3268 7
Mertz previously alleged the ineffective assistance of his
sentencing counsel in a petition before the Coles County Cir-
cuit Court (“Circuit Court”). The Circuit Court addressed
this claim on the merits and concluded that Mertz’s constitu-
tional rights were not violated. Still under a death sentence,
Mertz appealed this decision to the Illinois Supreme Court.
But while Mertz awaited an appeal in the Illinois Supreme
Court, Governor Quinn commuted his sentence, and his case
was transferred to the Illinois Appellate Court (“Appellate
Court”). The Appellate Court then dismissed Mertz’s sen-
tencing claims as moot in light of his sentence commutation.
The Appellate Court, therefore, did not adjudicate Mertz’s
claim on the merits, but also did not vacate the Circuit
Court’s decision, which did reach the merits of his ineffective
assistance of counsel claim. Because of this, the government
argued before the district court that the Circuit Court’s
judgment qualifies as a decision “on the merits” under
§ 2254(d). 1
The district court disagreed, citing Illinois Supreme
Court case Felzak v. Hruby, 876 N.E.2d 650 (Ill. 2007). In Fel-
zak, the Illinois Supreme Court dismissed the party’s appeal
as moot, and further held:
Because we do not reach the merits of the peti-
tion . . . we cannot speak to the correctness of
the judgments rendered by the circuit and ap-
pellate courts in this matter. Accordingly, to
prevent the appellate court’s resolution of the
1Although the government did not appeal the district court’s decision, it
asks us to resolve the question of whether the district court’s use of the
de novo standard of review in this case was appropriate.
8 No. 13-3268
issues presented to it from standing as prece-
dent for future cases, we vacate the judgments
of both the appellate and circuit courts.
Id. at 658 (internal quotation marks omitted). Based on Fel-
zak, the district court reasoned that “a ruling by an appellate
court that a case is moot deprives the lower court’s decision
on the merits of preclusive effect.” U.S. ex rel. Mertz v. Hardy,
No. 12 C 4174, 2013 WL 5163189, at *19 (N.D. Ill. Sept. 13,
2013).
However, the actions of the Appellate Court in Mertz’s
case are distinct from the actions taken by the Illinois Su-
preme Court in Felzak. In Felzak, the Illinois Supreme Court
vacated the judgments of both the Appellate Court and the
Circuit Court for the specific purpose of stripping both deci-
sions of precedential value. The Appellate Court here took
no such steps; instead it dismissed the suit due to mootness,
but did not disturb the Circuit Court’s original decision.
Moreover, in People v. Bailey, the Illinois Supreme Court stat-
ed that an appellate court’s dismissal of an appeal—rather
than a decision to vacate a lower court’s judgment—
“effectively leaves the lower court’s ruling on the merits un-
disturbed and intact.” 4 N.E.3d 474, 482 (Ill. 2014). Further-
more, Felzak did not hold—as the district court implied—
that when an appellate court dismisses an appeal for moot-
ness, the case below is automatically vacated. Instead, Felzak
cited United States v. Munsingwear, 340 U.S. 36, 39 (1950), for
support, wherein the Supreme Court held that it was the
“established practice,” and even the “duty of the appellate
court” “to reverse or vacate the judgment below and remand
with a direction to dismiss” in the event that a case becomes
moot while awaiting appellate review. Although the Felzak
No. 13-3268 9
court—in citing Munsingwear—paraphrased its holding by
stating, “when an appeal is rendered moot through happen-
stance, the judgments of the courts below are vacated,” 876
N.E.2d at 659, we are not persuaded that the Illinois Su-
preme Court intended this to mean that an appellate dismis-
sal for mootness automatically vacates a lower court deci-
sion. Instead, we are convinced that if both the United States
Supreme Court and the Illinois Supreme Court intended to
hold that a dismissal for mootness automatically strips a
lower court decision of preclusive effect, then neither court
would have specifically instructed appellate courts to vacate
and dismiss in these instances. Thus, we find that because
the Appellate Court in Mertz’s case failed to take such steps,
the district court erred in holding that the Circuit Court’s de-
cision lacked preclusive effect under § 2254(d). 2
Nevertheless, we do not remand back to the district court
to apply the correct standard of review under § 2254(d). In
reviewing Mertz’s claim de novo, the district court afforded
Mertz the most favorable standard of review possible, yet
still concluded that his ineffective assistance of counsel claim
lacked merit. To remand the case and ask the district court to
apply a less favorable standard of review would certainly
yield the same result. And since we agree with the district
2 The district court also cited Thomas v. Horn, 570 F.3d 105 (3d Cir. 2009).
In Thomas, the Pennsylvania Supreme Court reached a decision on a ha-
beas petitioner’s claims on “purely procedural, not substantive
grounds,” after a lower state court addressed the substance of the same
claims. Id. at 115. The Thomas court decided that the Pennsylvania
Supreme Court’s decision stripped the lower court’s substantive deci-
sion of any preclusive effect. Id. However, the opinion does not indicate
whether the Pennsylvania Supreme Court simply dismissed the appeal,
or whether it expressly vacated the lower court’s judgment. Id.10 No. 13-3268
court’s assessment that Mertz’s ineffective assistance claim
fails under de novo review, we also conclude that his claim
fails under the standard of review required by § 2254(d).
B. Sentencing Counsel’s Performance
Strickland v. Washington, 466 U.S. 668, 687 (1984), estab-
lishes a two-prong test for ineffective assistance of counsel
claims: the defendant must first demonstrate that his coun-
sel’s performance was deficient, and second, that counsel’s
deficient performance prejudiced him. Mertz points to Romp-
illa v. Beard, 545 U.S. 374, 393 (2005), wherein the Supreme
Court held that sentencing counsel’s performance was defi-
cient because of a failure to investigate a similar prior of-
fense, which the government used as aggravation evidence.
The Rompilla court held that “[t]he prosecution was going to
use the dramatic facts of a similar prior offense, and Rompil-
la’s counsel had a duty to make all reasonable efforts to learn
what they could about the offense.” Id. at 385.
Mertz argues that, like in Rompilla, the government in
this case focused on the disturbing details of other offenses
during sentencing, and that Mertz’s sentencing counsel had
a responsibility to respond to such arguments. However
Mertz’s case is quite distinct from Rompilla. In Rompilla, sen-
tencing counsel did not just fail to rebut evidence of a prior
offense, but failed to look at the defendant’s prior conviction
file altogether. Further, the file was a public record, and sen-
tencing counsel knew that the government would use evi-
dence of the defendant’s prior felony convictions as an ag-
gravating factor under state law. Id. at 383. Additionally, alt-
hough Rompilla’s sentencing counsel was aware of a poten-
tial substance abuse problem, “counsel did not look for evi-
dence of a history of dependence on alcohol that might have
No. 13-3268 11
extenuating significance.” Id. at 382. Unlike sentencing coun-
sel in Rompilla, Mertz’s sentencing counsel thoroughly inves-
tigated Mertz’s struggles with substance abuse in an effort to
present this information to the jury. Additionally, we find
that the failure to rebut evidence of an uncharged prior of-
fense cannot be easily compared to counsel’s failure to exam-
ine a prior conviction file. Strickland indicates that “a court
must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assis-
tance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’” 466 U.S. at 689 (citing
Michel v. State of Louisiana, 350 U.S. 91, 101 (1955)). It is un-
clear why Mertz’s sentencing counsel did not rebut the evi-
dence of the Warner murder and the Unique Apartments ar-
son, but it is clear that Mertz does not overcome the pre-
sumption that this decision was one of “sound trial strate-
gy.”
Moreover, in Pole v. Randolph, we held that “[w]e assess
counsel’s work as a whole, and it is the overall deficient per-
formance, rather than a specific failing, that constitutes the
ground of relief.” 570 F.3d 922, 934 (7th Cir. 2009) (internal
quotation marks and citations omitted). Under this standard,
sentencing counsel’s overall performance was not deficient.
Counsel called twenty-five mitigation witnesses, including
Mertz’s family members, former girlfriends, and a clinical
forensic psychologist—Dr. Mark Cunningham—who offered
testimony on a variety of issues. The jury heard firsthand ac-
counts from Mertz’s sisters about the circumstances of the
siblings’ upbringing, including the physical and sexual
abuse they suffered at the hands of their stepmother and
stepsister. Two of Mertz’s former girlfriends testified—
12 No. 13-3268
contrary to testimony offered by other women who claimed
that Mertz physically and sexually assaulted them—that
Mertz was not violent during their respective relationships.
Additionally, Dr. Cunningham testified about Mertz’s genet-
ic predisposition to alcoholism and depression, as well as the
negative impact of the physical and emotional abuse that
Mertz endured at the hands of his stepmother. These facts
demonstrate that Mertz’s sentencing counsel was thoughtful
and thorough in building Mertz’s mitigation case and that
counsel’s decision not to rebut the Warner and Unique
Apartments evidence was—at the very least—not sufficient-
ly egregious to taint her performance as a whole.
Mertz further argues that his sentencing counsel was de-
ficient in failing to present a myriad of additional evidence,
including: (1) evidence that his maternal uncle was a drug
addict and a “mentally disturbed individual” who commit-
ted a violent robbery; (2) evidence that Mertz attempted sui-
cide after he was arrested for a DUI six months prior to the
McNamara murder; (3) medical records from the Veterans
Administration Medical Center Pharmacy showing that
Mertz refilled his prescriptions for anti-depressant medica-
tions the day before McNamara’s murder; and (4) an expert
witness to determine whether Mertz’s combined use of alco-
hol and anti-depressant medication brought about a state of
involuntary intoxication, showing Mertz’s diminished men-
tal state.
First, we find that the evidence pertaining to Mertz’s ma-
ternal uncle would have been cumulative of the evidence
already presented to the jury on the topics of Mertz’s sub-
stance abuse and family history. In Bobby v. Van Hook, the
Supreme Court addressed the issue of cumulative mitigation
No. 13-3268 13
testimony, stating, “[T]here comes a point at which evidence
from more distant relatives can reasonably be expected to be
only cumulative, and the search for it distractive from more
important duties.” 558 U.S. 4, 11 (2009). We find these prin-
ciples applicable here, and hold that Mertz’s counsel was not
deficient in failing to present evidence about Mertz’s mater-
nal uncle.
Next, Mertz claims that his sentencing counsel was inef-
fective for failing to introduce evidence of medical records
and incident reports about his attempted suicide, because
outside of his own testimony about the attempt, no corrobo-
rating documentation was presented. We find that these rec-
ords would have been cumulative of Mertz’s own testimony,
and that counsel’s failure to introduce them was not so
flawed as to taint her overall performance during sentenc-
ing. As mentioned above, sentencing counsel introduced
considerable evidence relating to Mertz’s family back-
ground, substance abuse, struggle with depression, and in-
deed, even his suicide attempt six months prior to the
McNamara murder. The mere fact that additional docu-
ments would have corroborated Mertz’s testimony does not
support a conclusion that his sentencing counsel performed
deficiently by not introducing them.
Finally, Mertz’s arguments relating to his use of anti-
depressants in close proximity to the McNamara murder are
waived. The district court entertained Mertz’s argument that
his counsel was ineffective for failing to offer certain evi-
dence that he was involuntarily intoxicated when he com-
mitted the murder. This evidence included the fact that
Mertz filled an anti-depressant prescription right before the
murder, as well as a psychiatrist’s report indicating that
14 No. 13-3268
Mertz may have been susceptible to violent episodes as a re-
sult of combining anti-depressants and alcohol. Mertz, 2013
WL 5163189, at *15. The district court concluded that this
claim was procedurally defaulted, and that Mertz could not
demonstrate an appropriate excuse for such default. 3 Alt-
hough Mertz now argues that similar evidence should have
been presented during mitigation—rather than as an affirm-
ative defense—arguments in a federal habeas petition which
were not raised to the district court are not properly raised
for the first time on appeal. Sanders v. Cotton, 398 F.3d 572,
583 (7th Cir. 2005) (citing Perry v. Sullivan, 207 F.3d 379, 383
(7th Cir. 2000)). As such, Mertz may not rely on this same
evidence for a renewed purpose. We therefore conclude that
Mertz’s sentencing counsel was not deficient.
C. Strickland Prejudice
We also agree with the district court that, regardless of
whether sentencing counsel’s performance was deficient,
Mertz does not establish the necessary prejudice under
Strickland. When a defendant challenges his sentence under
Strickland, he must show that, but for counsel’s deficient per-
formance, a reasonable probability exists that he would have
received a different sentence. Griffin v. Pierce, 622 F.3d 831,
844 (7th Cir. 2010) (citing Strickland, 466 U.S. at 694). “Courts
assess that probability by evaluating the totality of the avail-
able mitigation evidence—both that adduced at trial, and the
evidence adduced in the habeas proceeding—and reweigh-
ing it against the evidence in aggravation.” Id. (internal quo-
3 The district court did not issue a certificate of appealability on this is-
sue, which prevents us from exercising jurisdiction over the claim. Mil-
ler-El v. Cockrell, 537 U.S. 322, 336 (2003).
No. 13-3268 15
tation marks and citations omitted). Finally, the Supreme
Court has noted that the probability of a different result—in
this case, a different sentence—“must be substantial, not just
conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792 (2011).
In Mertz’s case, the district court acknowledged that in
order to establish Strickland prejudice, Mertz needed to show
that but for his counsel’s deficient performance, he would
have received a term of years sentence, rather than his cur-
rent sentence of life without the possibility of parole. See
Mertz, 2013 WL 5163189, at *19. Mertz argues that the district
court erred in this respect; he argues that the standard
should have been whether, but for counsel’s errors, he
would have received a sentence other than death. However,
our precedent forecloses Mertz’s argument. In Richardson v.
Lemke, 745 F.3d 258 (7th Cir. 2014), we recently considered a
habeas petition alleging ineffective assistance of counsel at a
capital sentencing hearing where the petitioner’s sentence—
like Mertz’s sentence—was commuted to life imprisonment
without the possibility of parole. In describing the Strickland
standard, we stated:
By the time Richardson’s ineffective-assistance-
at-sentencing claim was decided by the district
court, his sentence had been commuted to life
in prison without the possibility of parole. But
that did not necessarily render the claim moot;
Richardson would still be entitled to relief if
adequate representation would have resulted
in a sentence to a term of years.
Id. at 267. Therefore, the district court correctly used a term
of years sentence as the benchmark for Strickland prejudice
in Mertz’s case.
16 No. 13-3268
Furthermore, we agree with the district court’s conclu-
sion that Mertz does not prove Strickland prejudice even as-
suming counsel’s performance was deficient. Mertz was eli-
gible for the death penalty because he murdered McNamara
in the course of committing other felonies (home invasion
and aggravated sexual assault). When Mertz was sentenced,
the jury was first charged with voting on the question of
whether the death penalty was appropriate; in the event that
the jury did not vote unanimously to issue the death penalty,
then the trial judge would have issued Mertz’s sentence. 720
Ill. Comp. Stat. 5/9-1(g) (West 2010). We hold that no reason-
able probability exists that the trial judge would ultimately
have sentenced Mertz to anything less than what he current-
ly serves had sentencing counsel rebutted the evidence of
the Warner murder and the Unique Apartments arson.
While this evidence was certainly aggravating, it was far
from the only aggravation evidence presented. Both the jury
and the trial judge heard evidence that Mertz broke into
McNamara’s home by cutting her bedroom window screen
with a box cutter; he killed her by shoving a washcloth in
her mouth, cutting her abdomen, back, and genitals with a
kitchen knife, and lacerating her liver with severe blunt
force. The government also presented a host of other trou-
bling evidence, including evidence that Mertz had a history
of committing violent assaults on women; that he sympa-
thized with figures such as Hitler and Timothy McVeigh;
that he kept images of Nazi flags, white pride symbols, and
nude photos of children on his computer; and that he used
the screen name “Cereal Kilr 2000.” In reweighing the evi-
dence that Mertz now presents—evidence rebutting the alle-
gations that Mertz committed the Warner murder and the
Unique Apartments arson, as well as additional information
No. 13-3268 17
about Mertz’s family history, depression and substance
abuse—against the aggravation evidence which was pre-
sented, we cannot conclude that a substantial probability ex-
ists that Mertz would have received a lower sentence than
the one he now serves. 4 Hence, we agree with the district
court’s Strickland prejudice analysis.
III. Conclusion
For these reasons, we AFFIRM the district court’s ruling.
4 We note that even if Mertz’s counsel had attempted to contradict the
assertion that Mertz committed the Warner murder and the Unique
Apartments arson, this does not mean that the sentencer would have
been barred from considering the evidence which supported the theory
that Mertz did commit these uncharged crimes; this evidence included
the fact that Mertz told friends that he murdered Amy Warner and that
he was responsible for the Unique Apartments fire.