Jeffrey Alan Weisheit v. Ron Neal

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2906
JEFFREY A LAN WEISHEIT ,
Petitioner-Appellant,
v.
R ON NEAL,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:19-cv-00036-SEB-KMB — Sarah Evans Barker, Judge.
____________________
A RGUED SEPTEMBER 25, 2024 — DECIDED A UGUST 13, 2025
____________________
Before EASTERBROOK, S T. EVE, and PRYOR , Circuit Judges.
ST. EVE, Circuit Judge. An Indiana jury convicted Jeffrey
Weisheit of murdering a five-year-old boy and eight-year-old
girl left in his care. As recommended by the jury, his sentenc-
ing judge imposed the death penalty.
On direct appeal, the Indiana Supreme Court affirmed. Af-
ter unsuccessfully pursuing postconviction relief in Indiana
state court, Weisheit filed a habeas petition in federal court.

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2 No. 23-2906
He also sought stays of the federal proceeding—one to return
to state court to present certain claims and another to restore
competency—and moved for additional funding in support
of his defense.
The district court denied his petition and related motions.
It found most of his claims procedurally defaulted and the re-
maining claims without merit.
We agree that Weisheit has procedurally defaulted most of
his claims, and we conclude that the district court did not
abuse its discretion in denying Weisheit’s motions for stays
and additional funding. As for decisions reached by the Indi-
ana Supreme Court on the merits, the court neither unreason-
ably applied clearly established federal law nor made unrea-
sonable determinations of facts. We thus affirm the district
court’s denial of Weisheit’s petition and related motions.
I. Background
The details of Weisheit’s brutal crime do not bear on the
issues before us. We therefore recount them briefly, before
chronicling the procedural history of this case.
A. Factual History
Jeffrey Weisheit and Lisa Lynch lived together with
Lynch’s two children—Alyssa and Caleb—in Evansville, In-
diana. In early 2010, Lynch discovered she was pregnant with
Weisheit’s daughter. Suspicious that Lynch was having an af-
fair, Weisheit told a coworker that if his suspicions proved
true, “he would kill her, burn everything, and kill his self.”
In late March, Weisheit stopped payment on an engage-
ment ring he had purchased for Lynch, telling the jeweler that
he and Lynch broke up and he was leaving the country.

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No. 23-2906 3
Around the same time, Weisheit quit his job and withdrew all
the money in his bank account.
Approximately two weeks passed. On April 9, 2010, while
caring for Lynch’s children, Weisheit became enraged at
Caleb. Weisheit duct taped Caleb’s hands behind his back and
pushed a rag into his mouth. He then packed up clothes and
some of Lynch’s jewelry and drove off toward Cincinnati.
Officers responded to flames engulfing the couple’s home
early the next morning. After extinguishing the fire, firefight-
ers discovered the bodies of Caleb and Alyssa inside. Caleb
had road flares under and around his body.
In the meantime, no one could reach Weisheit. Officers
eventually tracked his location to a county in Kentucky more
than 200 miles away. A high speed chase ensued before local
law enforcement forced Weisheit from his vehicle. When
Weisheit exited, he threw a knife over an officer’s head and
shouted for the officers to kill him. Two officers used tasers to
stun Weisheit, who fell backward and hit his head.
From there, officers took Weisheit to a local hospital where
doctors administered a sedative to treat his nausea and vom-
iting. Detectives Kerri Lynne Blessinger and Randy Chapman
read Weisheit his Miranda warnings, which he stated he un-
derstood, and questioned him about the events from the night
before. Weisheit answered most questions with three words
or less, providing no detail about the fire or deaths of the chil-
dren. When asked how he set the fire or what happened to the
children, Weisheit generally responded that he did not know
or remember. The interview lasted approximately 20 minutes
and ended when Weisheit asked for a lawyer.

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4 No. 23-2906
B. Procedural History
The State of Indiana charged Weisheit with two counts of
murder and one count of felony arson resulting in serious
bodily injury. See Weisheit v. State, 26 N.E.3d 3, 7 (Ind. 2015)
(“Weisheit I”). The State sought the death penalty, asserting
the multiple murders and the age of the victims as aggravat-
ing circumstances. Id.
1. The Trial
Weisheit proceeded to trial in June 2013. On the first day,
juror 10 brought a box of cookies and a thank you note from
his wife into the jury room. The note read:
Thank you for your service for the family of
Alyssa [and] Caleb Lynch. I will pray for you all
to have strength and wisdom to deal with the
days ahead. God bless!
The trial court became aware of the cookies and note two
days later and interviewed each juror to ascertain the effects
of the note. Most of the jurors had not read it; the ones who
had read it or otherwise learned of it generally recalled that it
thanked them for serving on the jury. Juror 8 remembered the
note included “words to the effect of … thank you and please
do a fair job for Caleb and Alyssa.” He was “surprised” to see
Caleb and Alyssa mentioned, but described the note as “very
neutral” and told the court that it did not affect him “at all.”
After the court questioned juror 10, who did not himself read
the note, he was overheard saying “that’s ridiculous.” Other
jurors responded to juror 10’s exclamation with “general chat-
ter” and “nodd[ing] their heads.”
The court ultimately dismissed juror 10 for bringing in the
note but denied Weisheit’s motion for a mistrial, reasoning

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No. 23-2906 5
that the note did not affect the other jurors. It admonished the
jury to reach its verdict based only on the evidence presented
and not to draw any negative inferences from the dismissal of
juror 10.
Trial resumed. The State presented multiple witnesses
who testified about the source of the fire: David Bretz, Assis-
tant Chief of the German Township Fire Department; Clayton
Kinder, Indiana State Fire Marshal; and Kerri Blessinger, a de-
tective from the Vanderburgh County Sheriff’s Office. Assis-
tant Chief Bretz and Fire Marshal Kinder testified that the
house fire was intentionally set. Detective Blessinger went a
step further, identifying Weisheit as the person who set it.
Trial counsel did not object to any of this testimony.
After the State rested, Weisheit testified against the advice
of counsel. He discussed, among other things, arguing with
and duct taping Caleb, bringing flares into the house, gather-
ing his belonging and Lynch’s jewelry, driving to Cincinnati,
attempting to flee from the police, and urging the police to
shoot him.
On cross-examination, he denied setting the fire. When the
State pressed him with undisputed facts—e.g., that the night
Weisheit left with his belongings, he bound Caleb with duct
tape and firefighters found Caleb with flares under his
body—Weisheit responded, “[t]hings happen.”
The jury returned a guilty verdict on all charged offenses.
During the penalty phase of the trial, the State incorpo-
rated all evidence it presented in the guilt phase. Weisheit pre-
sented 17 witnesses in his defense, including family, friends,
and neighbors; a former teacher; a counselor from the Indiana
Boys School, where he spent six months in juvenile detention;

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6 No. 23-2906
his former therapist; a corrections officer; and two psycholog-
ical experts. Both experts testified that he suffered from bipo-
lar disorder. The State presented two expert witnesses in re-
buttal.
Weisheit also intended to call James Aiken, a retired Indi-
ana Department of Correction Commissioner, to provide ex-
pert testimony regarding the likelihood that Weisheit could
be adequately managed and secured if he received a sentence
of life in prison rather than the death penalty. The court ex-
cluded Aiken’s testimony as not grounded in scientific
knowledge under Indiana Rule of Evidence 702.
The jury ultimately recommended a sentence of death, de-
termining that the State proved aggravating circumstances
beyond a reasonable doubt, and that those circumstances out-
weighed any mitigating factors. The trial court agreed and im-
posed the death penalty.
2. Direct Appeal and State Postconviction Proceedings
Weisheit appealed, raising numerous challenges: (1) the
trial court erred by (a) excluding Aiken’s testimony, (b) not
dismissing several jurors for cause, and (c) admitting
Weisheit’s statement to police while he was in the hospital;
(2) insufficient evidence supported his convictions; (3) the
cookie note sent to the jury room violated his Sixth Amend-
ment right to an unbiased jury; (4) the jury did not meaning-
fully consider mitigating circumstances; and (5) the death
sentence was an inappropriate penalty. The Indiana Supreme
Court unanimously affirmed Weisheit’s convictions. Weisheit
I, 26 N.E.3d at 21. The United States Supreme Court denied
Weisheit’s petition for a writ of certiorari. Weisheit v. Indiana,
577 U.S. 1106 (2016).

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No. 23-2906 7
Weisheit then pursued postconviction relief in state court,
counseled by the Public Defender of Indiana. He argued that
his trial and direct appellate counsel provided ineffective as-
sistance. Following an evidentiary hearing, the trial court de-
nied his petition. The Indiana Supreme Court affirmed in a
fractured opinion: one justice concurred in part and in the
judgment, concluding that trial counsel performed deficiently
at the penalty phase but finding no prejudice, Weisheit v. State,
109 N.E.3d 978, 994 (Ind. 2018) (“Weisheit II”) (Slaughter, J.,
concurring in part and in judgment); and the Chief Justice
concurred in part and dissented in part, concluding that coun-
sel’s performance was both deficient and caused Weisheit
prejudice, id. at 996 (Rush, C.J., concurring in part and dissent-
ing in part).
3. Federal Postconviction Proceedings
Unable to secure relief in state court, Weisheit filed a peti-
tion for a writ of habeas corpus in federal court under 28
U.S.C. § 2254. He advanced more than 30 claims for relief. The
court denied 12 on the merits and determined that Weisheit
had procedurally defaulted the rest. Still, acknowledging that
reasonable jurists could disagree on the outcome of some of
the claims, the court granted Weisheit a certificate of appeala-
bility. After two expansions, Weisheit secured a certificate on
claims related to ineffective assistance of trial and appellate
counsel; the cookie note sent to the jury; his statement to po-
lice while in the hospital; the exclusion of Aiken’s testimony;
and the question of procedural default.1
1 The State urges us not to consider whether Weisheit procedurally
defaulted his claims because the certificate of appealability did not

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8 No. 23-2906
Weisheit also filed three related motions: two to stay the
federal court proceedings (to exhaust certain claims in state
court and to restore his competency), and one for transport
and funding pursuant to 18 U.S.C. § 3599(f). The court denied
each motion.
Weisheit appeals.
II. Discussion
All told, this appeal raises 11 issues for our consideration.
We proceed in two steps. First, we review the district court’s
resolution of Weisheit’s motions for stays and for additional
funding. Second, we look at the decisions of the Indiana Su-
preme Court on the merits, evaluating whether the court un-
reasonably applied clearly established federal law or made
unreasonable determinations of fact entitling Weisheit to ha-
beas relief.
identify whether those claims presented “a substantial showing of the de-
nial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also § 2253(c)(3).
Even assuming the certificate was defective with respect to the question of
procedural default, we exercise our discretion to consider it. Gonzalez v.
Thaler, 565 U.S. 134, 137, 143 (2012) (holding that § 2253(c)(2) and (c)(3) are
not jurisdictional); Schmidt v. Foster, 911 F.3d 469, 486 (7th Cir. 2018) (en
banc) (“A defect in a certificate concerning one claim does not deprive us
of jurisdiction over that claim.” (citation modified)). The certificate
properly issued on at least some claims and the parties have comprehen-
sively briefed procedural default. Given the procedural complexities of
this case, the high stakes of punishment, and consideration for judicial re-
sources, we will decide whether Weisheit has procedurally defaulted these
claims. See Davis v. Borgen, 349 F.3d 1027, 1028 (7th Cir. 2003) (“[T]he rules
governing certificates of appealability are principally designed to save
time for the litigants and judges, which implies that once briefs have been
filed there is little point in revisiting the question whether a certificate
should have been issued.”).

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No. 23-2906 9
A. The District Court’s Decisions
We begin with the district court’s denial of Weisheit’s mo-
tions for stays and additional funding. The court rested its de-
cisions in part on the doctrines of procedural default and ex-
haustion. We evaluate these questions of law de novo, Booker
v. Baker, 74 F.4th 889, 892 (7th Cir. 2023), but otherwise review
the court’s resolution of Weisheit’s motions for an abuse of
discretion, Ryan v. Gonzales, 568 U.S. 57, 74 (2013) (stays);
Ayestas v. Davis, 584 U.S. 28, 46 (2018) (§ 3599(f) funding deci-
sions).
1. Rhines Stay
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) restricts federal courts’ review of state prisoner
habeas petitions. 28 U.S.C. § 2254. One such restriction gener-
ally precludes federal courts from issuing a writ unless the
petitioner has exhausted available state court remedies.
§ 2254(b)(1)(A). A petitioner exhausts state court remedies
when he “fairly present[s] his claim in each appropriate state
court.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citation modi-
fied); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
All agree that Weisheit has not properly presented many
of his claims in state court. When a petitioner does not
properly present his claims, the Supreme Court has recog-
nized that in certain limited circumstances a federal court “is
not required to automatically deny” them. Shinn v. Ramirez,
596 U.S. 366, 379 (2022).
First, if state court remedies remain available, the peti-
tioner may have the opportunity to return to state court to
present his claims. Id.; see also Rhines v. Weber, 544 U.S. 269,
277–78 (2005) (permitting federal courts to stay habeas

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10 No. 23-2906
proceedings to allow petitioners to present their claims to
state courts in the first instance, provided the petitioner meets
certain requirements). We consider these claims “unex-
hausted.” Shinn, 596 U.S. at 379.
Second, if a petitioner has not properly presented his
claims and no state court remedies remain available, those
claims are procedurally defaulted. Id.; see also Boerckel, 526
U.S. at 847–48. In such a circumstance, we may forgive the pe-
titioner’s default in federal court only upon a showing of
cause and prejudice or a miscarriage of justice. Shinn, 596 U.S.
at 379; Coleman v. Thompson, 501 U.S. 722, 750 (1991).2
Weisheit initially planned to pursue the second course of
action. He would establish “cause” for his failure to present
his ineffective assistance of trial counsel claims with a show-
ing of ineffective assistance of state postconviction counsel.
See Martinez v. Ryan, 566 U.S. 1, 9 (2012) (recognizing a “nar-
row exception” to the general rule that “an attorney’s igno-
rance or inadvertence in a postconviction proceeding does not
qualify as cause to excuse a procedural default” when the un-
derlying claim alleges ineffective assistance of trial counsel);
see also Trevino v. Thaler, 569 U.S. 413, 417 (2013). To make this
showing, Weisheit conceded that he would need to expand
the record in federal court.
2 The district court characterized as procedurally defaulted some
claims that Weisheit did properly present in state court. But its character-
ization does not change our conclusion. Res judicata bars Weisheit from
reasserting these claims in state court, Matheney v. State, 834 N.E.2d 658,
662 (Ind. 2005), and he has not argued that the state court unreasonably
applied clearly established federal law or made unreasonable determina-
tions of fact entitling him to habeas relief.

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No. 23-2906 11
After he filed his habeas petition, however, the Supreme
Court clarified that a petitioner cannot expand the record in
federal court—even to make out a claim of ineffective assis-
tance of counsel—unless he meets the narrow exceptions set
forth in § 2254(e)(2).3 Shinn, 596 U.S. at 382. Weisheit con-
ceded that he could not satisfy these stringent requirements.
He thus changed course.
With no way to develop his unpresented claims in federal
court, Weisheit sought a Rhines stay to present his claims to
the Indiana state court in the first instance. Rhines empowers
federal courts to issue a stay if the petitioner had good cause
for his failure to exhaust, his unexhausted claims are poten-
tially meritorious, and he did not engage in intentionally di-
latory litigation tactics. 544 U.S. at 277–78.
But Rhines applies only to unexhausted claims. Id.; see also
Day v. McDonough, 547 U.S. 198, 210 n.10 (2006) (explaining
that Rhines permits “a habeas petitioner to present his unex-
hausted claims to the state court in the first instance”). As we
have said, an unexhausted claim is one that has not been—but
could be—pursued in state court. Compare Doerr v. Shinn, 127
F.4th 1162, 1175 (9th Cir. 2025) (affirming the grant of a Rhines
stay where Arizona procedural rules did not clearly bar suc-
cessive postconviction petitions in comparable circum-
stances), with Haynes v. Quarterman, 526 F.3d 189, 197 (5th Cir.
3 Section 2254(e)(2) precludes a petitioner from developing the factual
basis for a claim in federal court unless the claim relies on (1) a new rule
of constitutional law, or (2) a factual predicate undiscoverable by due dil-
igence. 28 U.S.C. § 2254(e)(2)(A); see also Shinn, 596 U.S. at 382. In either
case, the new evidence must establish the petitioner’s innocence “by clear
and convincing evidence.” § 2254(e)(2)(B); Shinn, 596 U.S. at 381.

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12 No. 23-2906
2008) (affirming the denial of a Rhines stay where the peti-
tioner offered “no meritorious argument that the Texas [state
court] would allow him to file a successive application for
post-conviction relief”), and Sanders v. Jordan, No. 16-6152,
2023 WL 11978492, at *2, *4 (6th Cir. Feb. 8, 2023) (denying a
Rhines stay where the petitioner had “no unexhausted claims”
because a Kentucky law barring presentation of “issues that
could reasonably have been presented” in an earlier postcon-
viction proceeding precluded his claims). Weisheit must
therefore establish an “available” state court procedure
through which to pursue his claims. Boerckel, 526 U.S. at 848.
Generously reading Weisheit’s appellate briefing, he of-
fers two avenues for relief in Indiana: a successive postconvic-
tion petition under Indiana Rules of Post-Conviction Reme-
dies 1(12) or a petition based on “new evidence” under Indi-
ana Code § 35-50-2-9(k). He identifies no “new evidence” un-
der subsection k, however, foreclosing that avenue of relief.
As for Weisheit’s successive petition advocacy,
Postconviction Rule 1(12) requires defendants in capital cases
to seek permission from the Indiana Supreme Court before
they may file a successive petition. Isom v. State, 235 N.E.3d
150, 151 (Ind. 2024). In Indiana, only certain issues are
available to a successive petitioner. See Matheney, 834 N.E.2d
at 662; see also Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
2001) (“Postconviction procedures do not afford a petitioner
with a super-appeal.”). A petitioner may not present “[c]laims
that could have been, but were not, raised in earlier
proceedings,” Matheney, 834 N.E.2d at 662, absent a
“sufficient reason,” Ind. P-C.R. 1(8). Nor may a petitioner
present an issue raised but adversely decided. Matheney, 834
N.E.2d at 662. Assuming a petitioner’s claim is not barred in

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No. 23-2906 13
one of these ways, the Indiana court will still only grant
permission to file a successive petition if the petitioner shows
“a ‘reasonable possibility’ that he is entitled to relief.” Isom,
235 N.E.3d at 151 (quoting Ind. P-C.R. 1(12)(b)).
The claims that Weisheit seeks to “exhaust” in state court
fall into two categories: those that allege ineffective assistance
of trial counsel and those that do not.
Weisheit has not argued that his non-ineffective assistance
of trial counsel claims—claims premised on failures of the
trial court and his competency, among others—were un-
known to him in earlier proceedings. Nor does he attempt to
justify his failure to raise these claims with any coherent ar-
gument. Weisheit therefore cannot bring these claims through
a successive petition. See, e.g., Timberlake, 753 N.E.2d at 598
(“[T]he issue of … competency at trial was known and avail-
able on direct appeal and is therefore not available as a free-
standing claim in post-conviction relief.”); Matheney, 834
N.E.2d at 664 (holding that the petitioner’s claim alleging trial
court errors was procedurally defaulted where he made “no
showing that the particular errors … were unknown in earlier
review proceedings”).
The same is true with respect to Weisheit’s ineffective as-
sistance of counsel claims. He attempts to excuse his failure to
properly assert these claims by alleging ineffective assistance
of his state postconviction counsel. But Indiana law judges the
performance of postconviction counsel against an exceed-
ingly low benchmark. Counsel need only “in fact appear[]
and represent[] the petitioner in a procedurally fair setting
which resulted in a judgment of the court.” Graves v. State, 823
N.E.2d 1193, 1196 (Ind. 2005) (quoting Baum v. State, 533
N.E.2d 1200, 1201 (Ind. 1989)).

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14 No. 23-2906
Weisheit does not argue that his postconviction counsel
fell below this standard. Instead, he urges us to deem his
claims unexhausted in light of a trio of relevant Supreme
Court decisions: Martinez, Trevino, and Shinn. In Martinez and
Trevino, the Court permitted habeas petitioners to rely on in-
effective postconviction counsel to show cause for defaulted
ineffective assistance of trial counsel claims. Martinez, 566 U.S.
at 9; Trevino, 569 U.S. at 417. In Shinn, the Court clarified that
even where petitioners invoke Martinez and Trevino, they can-
not expand the record in federal court without meeting the
§ 2254(e) requirements. Shinn, 596 U.S. at 382.
Weisheit’s argument comes too late. After the district court
issued its opinion denying relief, but before Weisheit filed his
reply brief on appeal, the Indiana Supreme Court expressly
considered its state court procedures in light of federal habeas
jurisprudence: “While the rule from Martinez and Trevino pre-
serves certain otherwise waived claims for federal habeas re-
view when state post-conviction counsel were ineffective, it
does not preserve claims in state proceedings.” Isom, 235 N.3d
at 155.
The Indiana Supreme Court recently reaffirmed its low
standard for postconviction counsel. See Ritchie v. State, 254
N.E.3d 1064, 1065 (Ind. 2025) (declining the petitioner’s invi-
tation, given “developments in the law,” to reconsider Indi-
ana’s standard for postconviction counsel), cert. denied, No.
24-7157, 2025 WL 1431934 (U.S. May 19, 2025). Although the
Ritchie majority denied the petitioner’s request to file a succes-
sive petition without reasoning, the concurrence observed the
petitioner could not overcome his unpresented ineffective as-
sistance claim “under [Indiana’s] prevailing standard” for as-
sessing state postconviction counsel. Id. at 1066–67 (Slaughter,

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No. 23-2906 15
J., concurring). “All seem to agree,” Justice Slaughter recog-
nized, the petitioner “loses … because his post-conviction
counsel appeared and represented him during his first post-
conviction proceeding.” Id. at 1067.
So too here. Respecting comity in our dual system of gov-
ernment, “it would be unseemly … for a federal district court
to upset a state court conviction without giving an oppor-
tunity to the state courts to correct a constitutional violation,
and to do so consistent with their own procedures.” Shinn, 596
U.S. at 379 (citation modified). Weisheit has established no av-
enue for Indiana to correct his alleged violations consistent
with its own procedures.4 Cf. Boerckel, 526 U.S. at 847–48 (ex-
plaining that the exhaustion doctrine does not “require[] fed-
eral courts to ignore a state law or rule providing that a given
procedure is not available”). We thus affirm the district court’s
denial of a Rhines stay because Weisheit has no unexhausted
claims to present in state court.5
4 Weisheit also advances an argument that, to the extent Indiana
would not hear his unpresented claims, the state’s postconviction system
provides an unfair forum for petitioners to raise collateral claims. None of
the law Weisheit cites compels this conclusion. See, e.g., Murray v. Carrier,
477 U.S. 478, 488 (1986) (clarifying that “the existence of cause for a proce-
dural default must ordinarily turn on whether the prisoner can show that
some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule”); Marino v. Ragen, 332 U.S. 561,
567 (1947) (Rutledge, J., concurring) (describing the Illinois collateral re-
view process).
5 As of oral argument, Weisheit had not sought leave to file a succes-
sive petition in the Indiana Supreme Court. Given the admonishment in
Rhines that a district court should not grant a stay where a petitioner “en-
gages in abusive litigation tactics or intentional delay,” we doubt the

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16 No. 23-2906
2. Competency Stay
Weisheit also challenges the district court’s decision to
deny his request for a stay on the basis that he was not com-
petent to assist counsel in his habeas proceedings.
Federal habeas petitioners have no constitutional right to
competence, and the Supreme Court has yet to recognize a
right grounded in statute. Gonzales, 568 U.S. at 61 (holding
that neither 18 U.S.C. § 3599 nor § 4241 provides such a right).
But district courts may exercise their discretion to grant
competency-based stays. Id. at 73–74. The outer limits of that
discretion counsel against a stay when the petitioner’s claims
were adjudicated by the state courts on the merits, involve
pure questions of law, or are procedurally defaulted (and
cannot be excused). Id. at 74–76; see also Holmes v. Neal, 816
F.3d 949, 951 (7th Cir. 2016); Lay v. Royal, 860 F.3d 1307, 1314
(10th Cir. 2017).
In these instances, the petitioner’s assistance would not
“substantially benefit” the development of his claim. Gonzales,
568 U.S. at 76. If the state court decided the merits, we must
confine our review to the state court record. Cullen v. Pinhol-
ster, 563 U.S. 170, 181 (2011). If the claim sounded in a question
of law or was procedurally defaulted without excuse, its suc-
cess would not depend on the petitioner’s competence be-
cause “any evidence that [the] petitioner might have would
propriety of a stay even if Weisheit’s claims were simply unexhausted. See
Rhines, 544 U.S. at 277–78 (expressing “particular” concern that “capital
petitioners might deliberately engage in dilatory tactics to prolong their
incarceration and avoid execution of the sentence of death”).

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No. 23-2906 17
be inadmissible” or irrelevant to the resolution of his claims.
Gonzales, 568 U.S. at 75–76.
The district court denied Weisheit’s motion for a
competency-based stay because his claims were all either
resolved on the merits by the state court or not properly
exhausted and barred. We agree. Because Weisheit’s
assistance would provide no “substantial[] benefit” for the
reasons discussed in this opinion, the district court did not
abuse its discretion in denying Weisheit’s motion for a
competency-based stay.
3. Section 3599(f) Funding
Weisheit also challenges the district court’s denial of his
request for funding and transport to obtain new brain imag-
ing under 18 U.S.C. § 3599(f). He hoped to use the imaging,
which would allegedly show brain abnormalities that corre-
late with impaired functioning, to establish trial counsel’s in-
effectiveness in failing to present expert mitigating evidence.
Section 3599(a) authorizes federal funding for a petitioner
“who is facing the prospect of a death sentence and is ‘finan-
cially unable to obtain adequate representation or investiga-
tive, expert, or other reasonably necessary services.’” Ayestas,
584 U.S. at 43 (quoting § 3599(a)). Subsection (f) specifically
permits a district court to authorize funding for “investiga-
tive, expert, or other services” upon a determination that such
services “are reasonably necessary for the representation of
the defendant.” § 3599(f); see also Ayestas, 584 U.S. at 43.
“Proper application of the ‘reasonably necessary’ standard …
requires courts to consider the potential merit of the claims
that the applicant wants to pursue, the likelihood that the ser-
vices will generate useful and admissible evidence, and the

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18 No. 23-2906
prospect that the applicant will be able to clear any procedural
hurdles standing in the way.” Ayestas, 584 U.S. at 46–47. If this
standard is met, the district court has “broad discretion” to
decide whether to authorize funding. Id. at 43–46.
Funding is not reasonably necessary if a petitioner has no
forum to introduce the uncovered evidence. See Shoop v.
Twyford, 596 U.S. 811, 817–21 (2022) (finding an order for
transportation for medical testing not “necessary or appropri-
ate” under the All Writs Act because § 2254(e)(2) barred the
petitioner from introducing any uncovered evidence in his
federal habeas proceeding); Nelson v. Lumpkin, 72 F.4th 649,
657 n.2 (5th Cir. 2023) (holding that investigative services
were not reasonably necessary under § 3599(f) because the pe-
titioner could not meet the § 2254(e)(2) requirements), cert. de-
nied, 144 S. Ct. 1344 (2024). “[C]onsistent with AEDPA,” fed-
eral courts must “determine at the outset whether … new ev-
idence sought could be lawfully considered.” Twyford, 596
U.S. at 820.
Weisheit himself recognizes that he cannot present any ev-
idence discovered from additional funding in federal court.
And he has not persuaded us that Indiana would allow him
to expand the record in state court.6 Whatever the results of
the testing Weisheit seeks, then, testing is not reasonably nec-
essary because he has no forum in which to present the
6 In any event, as the district court observed, Weisheit has identified
no authority that requires federal courts to fund subsequent state court
litigation. Cf. Harbison v. Bell, 556 U.S. 180, 189–90 & n.7 (2009) (clarifying
that § 3599(e) permits, but does not require, federal courts to provide rep-
resentation in subsequent state postconviction proceedings).

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No. 23-2906 19
results. The district court thus did not abuse its discretion in
denying funding to develop new evidence.7
B. The State Court’s Decisions
We turn now to the claims Weisheit properly presented to
the Indiana state courts.
When a state court has adjudicated the merits of a habeas
petitioner’s claim, we may grant relief in two limited circum-
stances: where the state court (1) contradicted or unreasona-
bly applied clearly established federal law, as determined by
the United States Supreme Court; or (2) based its decision on
an unreasonable determination of facts in light of the evi-
dence presented in the state court proceeding. 28 U.S.C.
§ 2254(d)(1)–(2); Wilson v. Sellers, 584 U.S. 122, 125 (2018). We
look here to the decisions of the Indiana Supreme Court, as
“the last state court to decide” Weisheit’s federal claims.
Sellers, 584 U.S. at 125.
Evaluating a claim for habeas relief under § 2254(d) re-
quires us to focus on “the particular reasons—both legal and
factual—why state courts rejected a state prisoner’s federal
claims,” and then to afford “appropriate deference” to that
decision. Sellers, 584 U.S. at 125. If the state court “explains its
decision on the merits in a reasoned opinion,” that deference
is substantial—we defer so long as “the specific reasons given
by the state court … are reasonable.” Id.
7 That the district court authorized some funding for brain imaging
prior to the Court’s decision in Shinn does not alter the analysis. Shinn de-
finitively closed the door on factual development in federal habeas pro-
ceedings absent narrow exceptions.

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20 No. 23-2906
Weisheit’s habeas petition implicates both avenues of re-
lief under § 2254(d). For challenges asserting that the state
court unreasonably applied clearly established federal law,
only law as determined by Supreme Court holdings can jus-
tify relief. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S.
362, 412 (2000). If federal law clearly or inevitably applies to a
set of facts, courts must apply it. Schmidt, 911 F.3d at 477; see
also Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (emphasiz-
ing that “AEDPA does not require state and federal courts to
wait for some nearly identical factual pattern before a legal
rule must be applied” (citation modified)). But the Supreme
Court has “cautioned against stretching its precedent to de-
clare state-court decisions unreasonable.” Schmidt, 911 F.3d at
477; see also, e.g., White v. Woodall, 572 U.S. 415, 426 (2014); Ne-
vada v. Jackson, 569 U.S. 505, 512 (2013).
Whether the application of clearly established law is “un-
reasonable,” then, depends upon the nature of the rule itself—
“[t]he more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.” Yar-
borough v. Alvarado, 541 U.S. 652, 664 (2004). Ultimately, for a
writ to issue based on an unreasonable application of federal
law, the state court’s ruling must be “so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disa-
greement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
A petitioner faces an equally high hurdle when challeng-
ing a state court’s factual determinations under § 2254(d)(2).
Although the Court has not defined precisely when a factual
determination qualifies as “unreasonable,” it has made clear
when a determination is not unreasonable: a state court’s fac-
tual determination is not unreasonable “merely because the

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No. 23-2906 21
federal habeas court would have reached a different conclu-
sion,” nor if “reasonable minds” could disagree. Wood v. Allen,
558 U.S. 290, 301 (2010) (citation modified); Brumfield v. Cain,
576 U.S. 305, 314 (2015). Unless a petitioner presents “clear
and convincing evidence” to the contrary, we presume that a
state court’s factual findings are correct. § 2254(e)(1); Winfield
v. Dorethy, 956 F.3d 442, 452 (7th Cir. 2020); Ward v. Sternes,
334 F.3d 696, 703–04 (7th Cir. 2003).8
AEDPA presents an “intentionally difficult” standard for
habeas petitioners to meet. Woods v. Donald, 575 U.S. 312, 316
(2015) (citation modified). It aims “to reduce delays in the ex-
ecution of state and federal criminal sentences, particularly in
capital cases, and to advance the principles of comity, finality,
and federalism.” Twyford, 596 U.S. at 818 (citation modified).
So when federal courts evaluate challenges to state court de-
terminations, whether grounded in law or fact, we do not de-
cide if “the state court’s determination was incorrect, but
whether that determination was unreasonable—‘a substan-
tially higher threshold.’” Id. at 819 (quoting Schriro v. Landri-
gan, 550 U.S. 465, 473 (2007)).
With these well-established rules in mind, we turn to
Weisheit’s claims.
8 The Supreme Court has “left open the question” whether federal
courts should review all § 2254(d)(2) challenges under the “clear and con-
vincing evidence” standard set forth in § 2254(e)(1). Wood, 558 U.S. at 300;
see also Brumfield, 576 U.S. at 322 (“We have not yet defined the precise
relationship between § 2254(d)(2) and § 2254(e)(1)” (quoting Burt v. Titlow,
571 U.S. 12, 18 (2013)). Absent instruction to the contrary, however, we will
continue to apply this standard. Jansen v. Packaging Corp. of Am., 123 F.3d
490, 495 (7th Cir. 1997) (en banc). We note that our conclusion stands even
relying on § 2254(d)(2) alone.

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22 No. 23-2906
1. Juror Challenges
We first address Weisheit’s challenges that implicate the
constitutional guarantee of an impartial jury. Morgan v. Illi-
nois, 504 U.S. 719, 728 (1992). Weisheit argues that the trial
court violated this right in two ways: by denying his for-cause
motions to strike venirepersons and by not declaring a mis-
trial after discovering the thank you note juror 10 brought
with a box of cookies for the jury.
The seating of even one juror “who will automatically vote
for the death penalty” violates a defendant’s right to an im-
partial jury. Morgan, 504 U.S. at 729. But requiring a defendant
to use peremptory strikes to achieve an impartial jury does
not, on its own, violate the Constitution. “So long as the jury
that sits is impartial, the fact that the defendant had to use a
peremptory challenge to achieve that result does not mean the
Sixth Amendment was violated.” Ross v. Oklahoma, 487 U.S.
81, 88 (1988); see also Rivera v. Illinois, 556 U.S. 148, 157–59
(2009); United States v. Martinez-Salazar, 528 U.S. 304, 313–15
(2000). This means that to prevail on his claim challenging the
court’s denial of his for-cause motions to strike, Weisheit must
identify at least one biased juror on the jury.
Before the Indiana Supreme Court, Weisheit argued that
by improperly denying his for-cause objections, the trial court
forced him to deplete his allotment of peremptory strikes and
ultimately accept jurors “who, [while] not necessarily posi-
tioned to be challenged for cause, were biased against his ev-
idence in either the guilty phase, penalty phase, or both.” Alt-
hough he reproduced a handful of statements made by jurors
who ultimately served, Weisheit did not articulate, let alone
develop, specific objections. The Indiana Supreme Court’s
conclusion that Weisheit failed to show an objectionable or

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No. 23-2906 23
biased juror served on his jury is consistent with Ross and
other clearly established federal law. See Weisheit I, 26 N.E.3d
at 13.
Weisheit’s challenges regarding the cookie note fare no
better. As part of the Constitution’s impartial jury require-
ment, jurors must reach their verdict relying solely upon “ev-
idence and argument in open court, and not [upon] any out-
side influence.” Skilling v. United States, 561 U.S. 358, 378
(2010) (quoting Patterson v. Colorado, 205 U.S. 454, 462 (1907)).
“In a criminal case, any private communication … with a juror
during a trial about the matter pending before the jury is …
deemed presumptively prejudicial.” Remmer v. United States,
347 U.S. 227, 229 (1954); United States v. Coney, 76 F.4th 602,
607 (7th Cir. 2023). The State can rebut this presumption with
a showing, “after notice to and hearing of the defendant,” that
the juror contact was harmless. Remmer, 347 U.S. at 229.
Resolving questions of jury impartiality “involves credi-
bility findings whose basis cannot be easily discerned from an
appellate record.” Thompson v. Keohane, 516 U.S. 99, 111 (1995)
(quoting Wainwright v. Witt, 469 U.S. 412, 429 (1985)). We thus
rely upon a trial court’s “superior capacity” to evaluate the
credibility of jurors and afford great deference to that court’s
determinations. Id. at 113; see also Rice v. Collins, 546 U.S. 333,
341–42 (2006) (declaring that habeas courts may not “super-
sede the trial court’s credibility determination” simply be-
cause “[r]easonable minds reviewing the record might disa-
gree”).
The Indiana Supreme Court properly applied this law. It
first acknowledged that the cookie note created a presump-
tion of prejudice. It then held that the State rebutted such pre-
sumption by demonstrating that the cookie note was

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24 No. 23-2906
harmless. The court grounded its conclusion on the trial
court’s swift corrective actions, including the court’s investi-
gation of the effect of the note and individual questioning of
each juror (and finding that over half of the jurors did not
even read it); determination that the jurors credibly stated that
the note did not affect their ability to impartially serve; and
admonishment to the jury that it must base its verdict only on
presented evidence. Weisheit I, 26 N.E.3d at 16. It described
the note as “merely offer[ing] encouragement and gratitude
for the jury’s no doubt difficult job ahead,” and observed that
it “made no mention of Weisheit at all.” Id.
Weisheit has not established that these findings were un-
reasonable. Weisheit’s disagreement with the court’s credibil-
ity determinations—for example, that the note left a deeper
impression on one juror in particular—does not suffice for ha-
beas relief. See Collins, 546 U.S. at 341–42 (concluding that the
trial court could accept the prosecutor’s race-neutral justifica-
tions for excluding a juror despite having “reason to question
the prosecutor’s credibility”).
Nor does the court’s interpretation of the cookie note as
“merely offer[ing] encouragement and gratitude for the jury’s
no doubt difficult job ahead[,]” Weisheit I, 26 N.E.3d at 16, ra-
ther than, as Weisheit sees it, a note aimed at “service for the
family of Alyssa [and] Caleb Lynch.” Differing interpretations
can be reasonable. See Collins, 546 U.S. at 342 (habeas courts
may not rely on “debatable inferences” to set aside a state
court’s factual determinations). However reasonable
Weisheit’s view, he must affirmatively establish that the
court’s was “unreasonable … in light of the evidence pre-
sented.” 28 U.S.C. § 2254(d)(2); Wood, 558 U.S. at 301.

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No. 23-2906 25
He has not met this stringent standard. Some record evi-
dence supports the court’s interpretation, including the juror
recollections that the note just thanked them for their service.
In any event, the court’s decision to affirm denial of a mistrial
did not depend on its interpretation of the note. The court in-
stead appropriately based its affirmance on the trial court’s
thorough investigation of the note’s lack of impact on jurors.
Which brings us to Weisheit’s next perceived deficiency:
the Indiana Supreme Court’s reliance on the trial court’s ad-
monishment. This was proper. Clearly established federal law
plainly states that trial courts may presume jurors follow their
instructions. See Samia v. United States, 599 U.S. 635, 646 (2023);
Weeks v. Angelone, 528 U.S. 225, 234 (2000).9
So too was the court’s treatment of the two-day gap be-
tween the jurors’ receipt of the note and the trial court’s inves-
tigation and juror 10’s commentary on the investigation. See
Weisheit I, 26 N.E.3d at 14. Given the conclusion that the cookie
note was harmless, the gap in its discovery is irrelevant. The
same is true with respect to juror 10’s “ridiculous” comment,
which the court expressly addressed, and the other jurors
“nodding their heads” in response—an ambiguous action
9 Smith v. Phillips, 455 U.S. 209 (1982), the only Supreme Court case
that Weisheit cites on this point, bolsters our conclusion. There, the Court
remarked that due process requires “a jury capable and willing to decide
the case solely on the evidence before it, and a trial judge ever watchful …
to determine the effect of [prejudicial] occurrences when they happen.” Id.
at 217. “Such determinations,” the Court continued, “may properly be
made at a hearing”—just like the one the trial judge held here. Id. Even
Justice O’Connor writing in concurrence (the only part of the opinion on
which Weisheit relies) acknowledges that “in most instances a postconvic-
tion hearing will be adequate to determine” juror bias. Id. at 222.

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26 No. 23-2906
that Weisheit did not raise before the Indiana Supreme Court
and does not amount to evidence of much of anything.
Because Weisheit has not established that the court made
unreasonable determinations of fact or applications of law, he
is not entitled to relief on his claims of juror bias.
2. Custodial Statement
We turn next to the trial court’s decision to admit
Weisheit’s post-arrest statement to police while hospitalized.
Weisheit claims his statement was involuntary, and thus chal-
lenges its admission as a violation of his constitutional rights.
The Indiana Supreme Court’s conclusion to the contrary, he
argues, rested on an unreasonable determination of facts.
Both the Due Process Clause of the Fourteenth Amend-
ment and the Fifth Amendment forbid the admission of an in-
voluntary confession into evidence in a criminal case. Dicker-
son v. United States, 530 U.S. 428, 433 (2000). Whether a state-
ment is voluntary depends upon “the totality of all the sur-
rounding circumstances—both the characteristics of the ac-
cused and the details of the interrogation.” Id. at 434 (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). A state-
ment that is coerced by means of, e.g., violence, threats, or
prolonged interrogation tactics is not voluntary. Berghuis v.
Thompkins, 560 U.S. 370, 387–88 (2010). At bottom, we aim to
determine whether “the defendant’s will was in fact over-
borne” by police in their interrogation. Miller v. Fenton, 474
U.S. 104, 116 (1985); Dassey v. Dittmann, 877 F.3d 297, 303 (7th
Cir. 2017) (en banc).
The trial court held a suppression hearing to resolve this
question, where it considered testimony from officers and
medical professionals and a recording of Weisheit’s

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No. 23-2906 27
statement. In admitting the statement as voluntary, the trial
court found that Weisheit was alert and oriented and that the
officers conducting his interview did not employ overbearing
or coercive conduct. The Indiana Supreme Court affirmed,
highlighting the following pieces of evidence: Weisheit had
only a mild brain contusion; the on-site examining physician
testified that Weisheit was alert and oriented; another physi-
cian testified that Weisheit was capable of understanding and
participating in his conversation with police; Weisheit in-
gested no drugs other than anti-nausea medication; the offic-
ers conducting the interview testified that Weisheit selectively
feigned sleep based on the subject matter of their questions
but was otherwise responsive; and the interview was rela-
tively brief, lasting less than 20 minutes, and ceased when
Weisheit asked for an attorney.
Weisheit disputes most of these factual determinations.
But once again, he has not persuaded us that any were unrea-
sonable.
He claims, for example, that the court erred in character-
izing his injuries as minor. Yet he fails to account for the testi-
mony from medical professionals that his concussion was in-
deed minor, and that he was oriented and capable of under-
standing his conversation with police.
His contention that the officers used “coercive” tactics by
suggesting that he “needed” to speak with them is similarly
belied by the record. The interview transcript contains no in-
dicators of coercion. Moreover, Weisheit asked for a lawyer
less than 20 minutes into the interview, revealing that he un-
derstood his rights. See Duckworth v. Eagan, 492 U.S. 195, 203
(1989) (“The inquiry is simply whether the warnings

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28 No. 23-2906
reasonably convey to a suspect his rights as required by Mi-
randa.” (citation modified)).
Weisheit next asserts that, rather than feigning sleep, a
“better explanation” for his bouts of nonresponsiveness is that
he had just suffered a brain injury and was medicated. This
argument misapprehends our role. We assess only reasona-
bleness. If reasonable minds could differ, regardless of the
“better” explanation, we cannot supersede the state court’s
determination. Brumfield, 576 U.S. at 313–14; Collins, 546 U.S.
at 341–42; Pierce v. Vanihel, 93 F.4th 1036, 1046–47 (7th Cir.
2024) (competing plausible interpretations precluded dis-
placement of the state court’s factual determinations). In all,
given the testimony of the officers and medical professionals
and the interview recording itself, we have no trouble deem-
ing the state court’s factual determinations reasonable.
Recall that “[t]he more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determina-
tions.” Alvarado, 541 U.S. at 664. Voluntariness is a general
standard that “demand[s] a substantial element of judgment.”
Dassey, 877 F.3d at 303 (citation modified). The Indiana Su-
preme Court’s ultimate conclusion that Weisheit’s statement
was voluntary fell well within the bounds of reasonableness,
barring habeas relief on this issue.
3. Exclusion of Expert Testimony
At the penalty phase of the trial, defense counsel at-
tempted to call expert witness James Aiken, a former prison
warden and consultant, to testify regarding Weisheit’s future
dangerousness. Aiken would have testified that a prison
could adequately manage and secure Weisheit without en-
dangering prison staff, other inmates, or the public should he

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No. 23-2906 29
receive a life sentence. The trial court excluded his testimony
on objection from the State under Indiana Rule of Evidence
702, which governs the admission of expert testimony.
The Indiana Supreme Court affirmed, reasoning that
“counsel neither established Aiken’s qualifications to predict
future behavior, nor did he make an offer of proof as to Ai-
ken’s specific predictions of Weisheit’s potential future classi-
fication in prison.” Weisheit II, 109 N.E.3d at 987; see also
Weisheit I, 26 N.E.3d at 10. Weisheit challenges this conclusion
as an unreasonable application of a few clearly established
federal rules and principles.
Generally, the Eighth Amendment requires that “the sen-
tencer in capital cases … be permitted to consider any relevant
mitigating factor.” Eddings v. Oklahoma, 455 U.S. 104, 112
(1982); see also Lockett v. Ohio, 438 U.S. 586, 604–05 (1978). This
includes “evidence that the defendant would not pose a dan-
ger if spared (but incarcerated).” Skipper v. South Carolina, 476
U.S. 1, 5 (1986). Prosecutors, too, may rely on a defendant’s
future dangerousness in pursuing the death penalty. Barefoot
v. Estelle, 463 U.S. 880, 896–97 (1983) (psychiatrists may pre-
dict future dangerousness); see also Jurek v. Texas, 428 U.S. 262,
275–76 (1976). When a prosector introduces evidence of a de-
fendant’s future dangerousness, it is not just the Eighth
Amendment, but due process, that demands a defendant
have the “opportunity to deny or explain.” Skipper, 476 U.S. at
5 n.1 (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)); see
also Simmons v. South Carolina, 512 U.S. 154, 164 (1994).
Weisheit contends that these cases clearly establish his en-
titlement to present Aiken’s proposed testimony on future
dangerousness. Even assuming capital defendants have some
right to introduce this kind of testimony, however, it would

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30 No. 23-2906
not extend so far as to prevent Indiana from setting reasona-
ble limits on the evidence a defendant can submit and the
manner in which it is submitted. See Oregon v. Guzek, 546 U.S.
517, 526 (2006); see also United States v. Tsarnaev, 595 U.S. 302,
319 (2022) (“Because the States … retain the traditional au-
thority to decide that certain types of evidence may have in-
sufficient probative value to justify their admission, they may
enact reasonable rules governing whether specific pieces of
evidence are admissible.” (citation modified)); Barefoot, 463
U.S. at 904 (“Although cases such as this involve the death
penalty, we perceive no constitutional barrier to applying the
ordinary rules of evidence governing the use of expert testi-
mony.”).
The Indiana Supreme Court affirmed the trial court’s de-
cision that Aiken was unqualified under Indiana rules of evi-
dence. Weisheit I, 26 N.E.3d at 9–10. After applying Skipper to
conclude “error would ensue” if the trial court prevented
Weisheit from “introducing otherwise admissible evidence”
regarding Weisheit’s future dangerousness, it observed that
“[f]or all [Aiken’s] knowledge and expertise in classifying in-
mates, [he] is not an expert in predicting future behavior.” Id.
at 10.
We cannot grant habeas relief based on determinations of
state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Absent
an argument that Indiana’s evidentiary rule itself violates the
Constitution—an argument Weisheit does not make—we do
not review the Indiana Supreme Court’s application of state
rules of evidence. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“We have repeatedly held that a state court’s interpretation
of state law … binds a federal court sitting in habeas cor-
pus.”); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

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No. 23-2906 31
Given the inadmissibility of Aiken’s testimony, the court
did not unreasonably apply Skipper, Simmons, or any other
clearly established law in excluding it. See Skipper, 476 U.S. at
7 (rejecting a rule that would effectively “preclud[e] the de-
fendant from introducing otherwise admissible evidence” of fu-
ture dangerousness (emphasis added)).10
4. Strickland Challenges
Weisheit’s final set of challenges concern his right to the
effective assistance of counsel under the Sixth Amendment.
See Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail
on an ineffective assistance of trial counsel claim, a petitioner
must show that counsel (1) provided a deficient performance,
that (2) caused him prejudice. Thornell v. Jones, 602 U.S. 154,
163 (2024); Strickland, 466 U.S. at 687.
Counsel’s performance is deficient when it falls “below an
objective standard of reasonableness … under prevailing pro-
fessional norms.” Strickland, 466 U.S. at 688. In the death pen-
alty context, deficient performance causes prejudice where
there exists “a reasonable probability” that but for the defi-
ciency, at least one juror would have imposed a sentence other
than death. Wiggins v. Smith, 539 U.S. 510, 537 (2003); Thornell,
10 In fact, Skipper supports a contrary conclusion. The state in Skipper
attempted to defend the trial court’s exclusion of nondangerousness testi-
mony by arguing that the court simply prohibited “incompetent lay opin-
ion testimony regarding petitioner’s ability to adjust to prison life in the
future.” Skipper, 476 U.S. at 5. The Supreme Court rejected this argument,
emphasizing that the witnesses intended to testify that the petitioner “has
made a good adjustment to jail”—“nonopinion evidence” concerning past
behavior. Id. at 5–6. “Defense counsel,” the Court made clear, “was not of-
fering opinion testimony regarding future events.” Id. at 6. That is the pre-
cise testimony the state courts confronted here.

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32 No. 23-2906
602 U.S. at 163 (elaborating that a “reasonable probability is a
probability sufficient to undermine confidence in the out-
come,” which “requires a substantial, not just conceivable,
likelihood of a different [sentencing] result” (citation modi-
fied)). In undertaking this analysis, courts consider the total-
ity of the evidence, weighing all available mitigating evidence
against aggravating evidence. Strickland, 466 U.S. at 695–96;
Williams, 529 U.S. at 397–98.
On its own, Strickland presents a high hurdle for defend-
ants to overcome. Richter, 562 U.S. at 105. When a Strickland
claim arises in a § 2254 petition, the hurdle heightens. The Su-
preme Court has described our review in these circumstances
as “doubly” deferential: we no longer consider simply
whether counsel’s actions were reasonable, but whether the
state court’s decision was reasonable. Id. (quoting Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)). Because “[t]he Strickland
standard is a general one,” that range of reasonableness is
“substantial.” Id. We ask only “whether there is any reasona-
ble argument that counsel satisfied Strickland’s deferential
standard.” Id. (emphasis added).
With the clearly established law well settled, we turn to
Weisheit’s four ineffective assistance of counsel claims: coun-
sel provided ineffective assistance by (1) failing to investigate
and obtain records from Weisheit’s time at the Indiana Boys
School; (2) failing to present relevant expert mitigating evi-
dence; (3) failing to object to the testimony of three witnesses
who opined that the fire was intentionally set; and (4) failing
to make an adequate offer of proof on the admissibility of Ai-
ken’s testimony. Weisheit contends that in affirming the trial
court’s decision on these claims, the Indiana Supreme Court
unreasonably applied Strickland. We disagree.

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No. 23-2906 33
a. Indiana Boys School Records
We begin with defense counsel’s treatment of Weisheit’s
records from the Indiana Boys School, a juvenile correctional
institution. Weisheit spent roughly six months at the Boys
School between 1992 and 1993. Records from his time there
illustrate Weisheit’s mental health challenges.
Weisheit’s trial counsel sought to obtain these records, but
the Department of Correction responded that a search re-
vealed no match. The Department clarified that it maintained
a policy to destroy records for any offender out of its facility
for more than ten years. Weisheit had been out of the Boys
School for far longer. Although his counsel stopped pursuing
the Boys School records, they secured other mental health rec-
ords from that time and provided them to Weisheit’s experts.
It turns out Weisheit’s Boys School records did exist. The
Indiana State Archives had a copy, which Weisheit’s postcon-
viction counsel managed to obtain. Weisheit claims that his
trial counsel performed ineffectively in failing to secure those
records.
To be sure, the Constitution imposes a duty on counsel “to
make reasonable investigations.” Strickland, 466 U.S. at 691.
The scope of this duty encompasses “the quantum of evidence
already known to counsel,” but also circumstances where
“the known evidence would lead a reasonable attorney to in-
vestigate further.” Wiggins, 539 U.S. at 527.
Clearly established law arms us with some certainties:
counsel must learn the law that is “fundamental” to their case,
Hinton v. Alabama, 571 U.S. 263, 274 (2014); undertake at least
some investigation into known and potentially powerful mit-
igating evidence, Wiggins, 539 U.S. at 527; and pursue “readily

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34 No. 23-2906
available” information that the prosecution will probably rely
upon, Rompilla v. Beard, 545 U.S. 374, 385 (2005). The Supreme
Court has also instructed that “reasonably diligent counsel
may draw a line when they have good reason to think further
investigation would be a waste.” Id. at 383 (counsel need not
“scour the globe on the off chance something will turn up”).
Beyond that, “a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judg-
ments.” Strickland, 466 U.S. at 691.
The Indiana Supreme Court reasonably applied Strickland,
Wiggins, and other applicable law when it determined that
trial counsel was not deficient for failing to obtain Weisheit’s
Boys School records. No clearly established federal law re-
quires counsel to inform themselves of an agency record-
keeping policy that may lead to the discovery of beneficial
mitigation evidence—particularly where, as here, counsel in-
troduced much of the mitigation evidence by other means and
the agency represented it did not have the records. See Bobby
v. Van Hook, 558 U.S. 4, 11–12 (2009) (“[D]efense counsel’s de-
cision not to seek more mitigating evidence from the defend-
ant’s background than was already in hand fell well within
the range of professionally reasonable judgments.” (citation
modified)). As far as Weisheit’s counsel knew, the Depart-
ment had destroyed Weisheit’s records. The record contains
no evidence that counsel learned they could access the rec-
ords another way or knew they should have followed up with
the archives. The communication from the Department was
the only “known evidence” regarding the status of the rec-
ords, and it would not have led a “reasonable attorney to in-
vestigate further.” Wiggins, 539 U.S. at 527.

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No. 23-2906 35
Even if counsel did provide inadequate assistance,
Weisheit has not demonstrated that the Indiana Supreme
Court misapplied clearly established law in finding no preju-
dice. Counsel does not need to obtain “merely cumulative”
evidence that would make “little difference” in the outcome
of a proceeding. Wong v. Belmontes, 558 U.S. 15, 22 (2009) (per
curiam); see also Westray v. Brookhart, 36 F.4th 737, 753 (7th Cir.
2022) (finding no prejudice where witnesses testified about
the defendant’s abuse but counsel did not introduce reports
corroborating the abuse).
The Indiana Supreme Court observed that Weisheit’s his-
tory of mental illness, which the Boys School records would
have corroborated, came into evidence via testimony from
multiple expert witnesses—including a correctional counse-
lor at the Boys School. At his state postconviction hearing, one
of Weisheit’s experts even testified that although the records
contained significant additional information, they did not al-
ter or conflict with the opinion she gave about Weisheit’s men-
tal illness during trial. See Weisheit II, 109 N.E.3d at 985.
Notwithstanding Weisheit’s contentions to the contrary,
the Indiana Supreme Court also acknowledged Weisheit’s ar-
gument that the Boys School records could have “forcefully
countered” the State’s attempt to downplay the impact of
Weisheit’s mental illness. Id. Rather than ignore the argument,
the court came to the reasonable conclusion that Weisheit’s
counsel rebutted the State’s attempt through its own presen-
tation of the evidence. Counsel pointed to admitted records
“rife with suicide attempts, depression, medication,” and in-
adequate treatment during Weisheit’s childhood. Id. (citation
modified).

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36 No. 23-2906
Given that Weisheit “did put on substantial mitigation ev-
idence, much of it targeting the same” mental illness evidence
he sought to introduce through the Boys School records,
“[t]he sentencing jury was … ‘well acquainted’ with
[Weisheit’s] background.” Belmontes, 558 U.S. at 23 (quoting
Landrigan, 550 U.S. at 481) (reversing a finding of prejudice for
counsel’s failure to introduce specific evidence of the peti-
tioner’s childhood and positive attributes because counsel in-
troduced other evidence “targeting the same … theme”). “Ad-
ditional evidence” on his history of mental illness “would
have offered an insignificant benefit, if any at all.” Id.
The Indiana Supreme Court recognized an additional bar
to prejudice: presenting the Boys School records at trial could
have had a counterproductive effect by exposing jurors to
Weisheit’s behavior as a teenager, including his lack of re-
morse, auto theft, fighting, threats, and cruelty to animals.
Weisheit claims that this conclusion runs contrary to Sears
v. Upton, 561 U.S. 945 (2010), which clarified that the presence
of adverse evidence accompanying mitigating evidence does
not automatically trigger a finding of no prejudice. Id. at 951.
But Sears does not save Weisheit’s claim. There, defense coun-
sel “should have been able to turn some of the adverse evi-
dence” regarding the defendant’s “grandiose self-conception
and … magical thinking” into a positive, namely, expert mit-
igation testimony of his “profound personality disorder.” Id.
(citation omitted). Because counsel in Sears conducted an in-
adequate mitigation investigation, “none of this evidence was
known to Sears’ trial counsel.” Id.
This case is not like Sears. The jury heard substantial evi-
dence of Weisheit’s mental illness and suicidal ideation. The
Indiana Supreme Court properly applied U.S. Supreme Court

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No. 23-2906 37
precedent by considering “all the relevant evidence that the
jury would have had before it” in undertaking its prejudice
analysis. Belmontes, 558 U.S. at 20.
The Indiana Supreme Court did not unreasonably apply
clearly established law when it found Weisheit did not prove
the introduction of the Boys School records would have cre-
ated a reasonable probability of a lesser sentence. See Strick-
land, 466 U.S. at 700 (finding no prejudice where the proffered
evidence “would barely have altered the sentencing profile
presented to the sentencing judge”).
b. Expert Mitigation Testimony
Weisheit next takes aim at his trial counsel for not present-
ing expert mitigation evidence from Dr. Philip Harvey and
Dr. Ruben Gur during the penalty phase of his trial.
The defense retained Dr. Harvey, a qualified neuropsy-
chologist, to testify regarding Weisheit’s bipolar disorder.
Based on a misunderstanding, counsel thought Dr. Harvey
was unavailable to testify and engaged another qualified ex-
pert witness, Dr. David Price.
Dr. Price, a psychologist, received a memorandum pre-
pared by Dr. Harvey that detailed his observations of
Weisheit during a meeting the two had and more general im-
pressions of Weisheit’s mental health. In this memorandum,
Dr. Harvey reported seeing Weisheit in a manic state. Dr.
Price separately conducted his own assessments of Weisheit.
He ultimately testified in mitigation at the penalty phase of
trial, explaining that based on his multiple assessments and a
review of medical records dating back to Weisheit’s child-
hood, Weisheit suffered from bipolar disorder, attention defi-
cit hyperactivity disorder, predominate hyperactive impulse,

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38 No. 23-2906
and cognitive disorder. Dr. Price incorporated Dr. Harvey’s
observations, including Weisheit’s manic episode, into his tes-
timony.
The Indiana Supreme Court found no deficiency in coun-
sel’s misunderstanding of Dr. Harvey’s availability and no
prejudice based on Dr. Price’s ability to capably testify. We
need not evaluate the court’s deficiency determination be-
cause Weisheit has not shown that the court’s no-prejudice
finding was unreasonable. See Strickland, 466 U.S. at 697 (ex-
plaining that courts need not “address both components of
the [ineffective assistance of counsel] inquiry if the defendant
makes an insufficient showing on one”). Dr. Price testified
that Weisheit suffered from bipolar disorder, just as Dr. Har-
vey would have. He based this testimony not only on his own
observations and tests, but on a review of Dr. Harvey’s report.
Rather than identify evidence absent from Dr. Price’s tes-
timony that Dr. Harvey would have introduced, Weisheit ar-
gues that Dr. Harvey would have more effectively rebutted
the State’s argument that Weisheit was not manic. The Indi-
ana Supreme Court rejected this argument, concluding that
“even without Dr. Harvey’s testimony about the instance of
mania he observed, trial counsel did in fact present evidence
of Weisheit’s bipolar diagnosis and possible mania at the time
of the murders.” Weisheit II, 109 N.E.3d at 986.
Weisheit fails to persuade us that such a conclusion was
unreasonable. Wiggins, the only case that Weisheit cites,
simply establishes that habeas courts reweigh the aggravating
evidence against the totality of mitigating evidence. 539 U.S.
at 534. A fair reading of the Indiana Supreme Court’s opinion
shows that it did just that. See Weisheit II, 109 N.E.3d at 986.

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No. 23-2906 39
Dr. Gur, for his part, became involved in Weisheit’s case at
the postconviction stage. State postconviction counsel called
him to testify about how the multiple brain injuries that
Weisheit reported incurring in his childhood could have ex-
acerbated his mental health conditions. Weisheit faults trial
counsel for failing to develop and present evidence of his his-
tory of traumatic brain injury at the penalty phase of his trial.
The Indiana Supreme Court concluded that Weisheit
failed to establish ineffective assistance, holding that Weisheit
did not show prejudice. Id. at 987. The court reasoned that Dr.
Gur’s testimony was merely speculative and that speculative
nature, together with testimony from the State’s expert wit-
ness, would have minimized any mitigating effect of Dr.
Gur’s testimony.
Weisheit challenges the supreme court’s “speculative”
finding as an unreasonable determination of fact. But he has
failed to show that such a conclusion was unreasonable given
the evidence in the record.
Dr. Gur testified, based on his review of Weisheit’s records
(and never having met Weisheit), that Weisheit likely suffered
instances of traumatic brain injury causing long-term effects.
Medical records corroborated some of these injuries, others
Weisheit self-reported. None of the incidents were corrobo-
rated by testing for brain injuries—without which, according
to the State’s expert, it was impossible to determine which in-
stances caused permanent damage and which did not. Dr.
Gur himself acknowledged that just because someone hit his
head, even multiple times, does not necessarily mean he suf-
fered from concussions, or in turn that the concussions caused
permanent brain injury.

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40 No. 23-2906
Under AEDPA’s deferential review standard, that some
evidence in the record supported Dr. Gur’s testimony is not
enough. The fact that both the Indiana Supreme Court’s and
Weisheit’s interpretations “are at least plausible precludes us
from displacing the state court’s factual determination at the
habeas stage.” Pierce, 93 F.4th at 1046; see also Wood, 558 U.S.
at 301 (“[E]ven if reasonable minds reviewing the record
might disagree about the finding in question, on habeas re-
view that does not suffice to supersede the trial court’s deter-
mination.” (citation modified)).
As for the Indiana Supreme Court’s reliance on conflicting
testimony from the State’s expert to conclude that Dr. Gur’s
testimony would have made no difference, clearly established
Supreme Court law does require courts to reasonably account
for mitigation evidence, even if the State identifies “perceived
problems” with such evidence. Porter v. McCollum, 558 U.S.
30, 43 (2009) (per curiam). By the same token, though, control-
ling law mandates consideration of all evidence, which in-
cludes rebuttal evidence. Belmontes, 558 U.S. at 20.
Porter, the only clearly established federal law Weisheit
identifies in support of his challenge, elucidates this point. In
Porter, defense counsel presented only one witness during the
penalty phase of trial and the sentencing judge heard “abso-
lutely [no]” evidence about the defendant’s abusive child-
hood, his heroic military service and resultant trauma, or his
impaired mental capacity. 558 U.S. at 33, 41. Comparing this
“significant mitigation evidence” to the less substantial evi-
dence in aggravation, the Supreme Court concluded that the
state court unreasonably applied Strickland’s prejudice prong,
ignoring “too much mitigating evidence.” Id. at 31, 44.

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No. 23-2906 41
Weisheit’s case starkly contrasts with Porter’s. The jury
and sentencing judge heard substantial evidence of Weisheit’s
background, including his history of mental health issues.
Meanwhile, the aggravating evidence against Weisheit,
including his gruesome murder of two children, was
overwhelming. The Indiana Supreme Court reasonably
considered the effect of the additional mitigation evidence—
inconclusive and uncorroborated—against the significant
aggravating evidence in finding no prejudice. See Belmontes,
558 U.S. at 27–28 (“It is hard to imagine expert testimony and
additional facts about [the petitioner’s background]
outweighing the facts of … [the] murder[s].”).
c. Fire Testimony
We turn next to trial testimony regarding the cause of the
fire. Recall, Assistant Chief Bretz and Fire Marshal Kinder tes-
tified that the house fire was intentionally set. Detective
Blessinger testified that Weisheit himself set it.
The Indiana Supreme Court concluded that counsel did
not perform deficiently in failing to object to the testimony of
Bretz and Kinder because it was admissible under Indiana
rules of evidence. Weisheit II, 109 N.E.3d at 991. We will not
disturb this admissibility determination. McGuire, 502 U.S. at
67–68. As for Blessinger’s testimony, the court explained that
even if counsel provided deficient performance, Weisheit did
not show prejudice. We evaluate the court’s prejudice deter-
mination and discern no misapplication of clearly established
federal law.
Citing the decision of the initial postconviction review
court, which recounted evidence indicative of Weisheit’s
guilt, the Indiana Supreme Court concluded that the expert

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42 No. 23-2906
testimony “was not nearly as persuasive as Weisheit’s actions
before, during, and after the crime.” Weisheit II, 109 N.E.3d at
991–92 (citation modified). The court detailed these actions on
direct appeal, including:
• Months before the fire, Weisheit told a co-
worker that if Lynch was having an affair, as
he suspected, he would “kill her, burn eve-
rything, and kill his self”;
• Weeks or days before the fire, Weisheit can-
celed payments on the engagement ring for
Lynch, told the jeweler he was leaving the
country, quit his job, and withdrew all the
money in his bank account;
• The night of the fire, Weisheit tied Caleb up
and taped a rag into his mouth, left the chil-
dren alone, fled Indiana, did not respond to
numerous calls, attempted to evade police,
and implored officers to shoot him;
• When officers finally secured him, they
found cash, clothes, and Lynch’s jewelry in
his possession;
• At the hospital, Weisheit selectively an-
swered questions from the police about the
children and the fire; and
• Rescuers found Caleb with flares around his
body—flares that Weisheit brought into the
home.
Weisheit I, 26 N.E.3d at 11–12.

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No. 23-2906 43
The Indiana Supreme Court properly weighed the poten-
tial exclusion of the fire witnesses’ testimony against the over-
whelming evidence of Weisheit’s guilt, as required by clearly
established law. See Belmontes, 558 U.S. at 20; Williams, 529
U.S. at 397–98. That it did so in only a few words does not
undermine our conclusion. See Johnson v. Williams, 568 U.S.
289, 300 (2013) (“federal courts have no authority to impose
mandatory opinion-writing standards on state courts”); Das-
sey, 877 F.3d at 314 (dismissing the petitioner’s criticism of the
“terse” state court opinion where the court “endorsed de-
tailed findings by the trial court that provide[d] substantial
support” for its conclusion).11
d. Failure to Make an Offer of Proof
We end by returning to the testimony of James Aiken.
Weisheit alleges ineffective assistance based on counsel’s fail-
ure to point the trial court to the correct Indiana rule of evi-
dence under which Aiken would have qualified as an expert
(Rule 702(a)),12 along with counsel’s failure to make an
11 Weisheit separately faults the Indiana Supreme Court for not con-
sidering the prejudicial effect of counsel’s performance at the penalty
phase of proceedings. In Weisheit’s case, this is a distinction without a dif-
ference; the challenged testimony, presented during the guilt phase, did
not impart any new prejudicial information at the penalty phase. The jury
was clearly satisfied that Weisheit intentionally set the fire and imposed
his sentence based on that understanding. Because no prejudice resulted
at the guilt phase, Weisheit has not established a reasonable probability
that absent the fire witnesses’ testimony, at least one juror would have
voted against death at the penalty phase. See Wiggins, 539 U.S. at 537.
12 Indiana Rule of Evidence 702(a) permits the testimony of “[a] wit-
ness who is qualified as an expert by knowledge, skill, experience, train-
ing, or education … if the expert’s scientific, technical, or other specialized

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44 No. 23-2906
adequate offer of proof. Ind. R. Evid. 103(a)(2) (requiring a
party to inform the court of the substance of excluded evi-
dence by an offer of proof).
We do not decide whether Weisheit established deficient
performance because the Indiana Supreme Court did not un-
reasonably apply Strickland in finding no prejudice. The court
rested its holding on two grounds. First, under any rule of ev-
idence, the admissibility of Aiken’s testimony was “specula-
tive.” Weisheit II, 109 N.E.3d at 988. The Indiana Supreme
Court outlined a handful of reasons, including Aiken’s lim-
ited study of Weisheit’s record, the inconsiderable amount of
time he spent interviewing Weisheit, his difficulty addressing
the trial court’s questions about his experience and prepara-
tion, and his admission that he did not review any infor-
mation regarding how an Indiana prison would house an in-
mate convicted of murdering children. Id. Once again, we do
not second-guess a state court’s application of its own rules of
evidence. McGuire, 502 U.S. at 67–68.
The Indiana Supreme Court also reasoned that Aiken’s
testimony would have opened the door to Weisheit’s volumi-
nous disciplinary records. Weisheit accrued 35 incident re-
ports during his pretrial incarceration between April 2010 and
May 2011. The reports depicted, among other incidents, his
threat to kill an EMT worker, threats to officers and other in-
mates, destruction of jail property, and concealment of
knowledge will help the trier of fact to understand the evidence or to de-
termine a fact in issue.” Unlike Rule 702(b), it does not require testimony
based “upon reliable scientific principles.”

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No. 23-2906 45
“multiple, sharp chicken bones” in his mouth. Weisheit II, 109
N.E.3d at 988 (citation omitted).13
As we have indicated, when evaluating prejudice, courts
must consider “not just the mitigation evidence[,]” but any
and all evidence that “would have come in with it.” Belmontes,
558 U.S. at 20–24. That is precisely how the Indiana Supreme
Court proceeded. Weisheit does not dispute the court’s inter-
pretation of his disciplinary reports, nor its determination
that the State would have introduced them to challenge Ai-
ken’s opinions. Given the speculative nature of Aiken’s testi-
mony and the likelihood that it would have triggered the in-
troduction of powerful counterevidence, the Indiana Su-
preme Court reasonably determined that Weisheit did not
suffer prejudice from the absence of Aiken’s testimony. See id.
(concluding that the petitioner did not establish prejudice
where the sought “expert testimony discussing [the peti-
tioner’s] mental state, seeking to explain his behavior, or put-
ting it in some favorable context would have exposed” the
jury to powerful rebuttal evidence); cf. Darden v. Wainwright,
477 U.S. 168, 186 (1986) (declining to find deficient perfor-
mance where “[a]ny attempt to portray petitioner as a nonvi-
olent man would have opened the door for the State to rebut
with evidence of petitioner’s prior convictions”).
13 Weisheit attempts to challenge the significance of this evidence with
conclusory statements that “some” evidence of his “erratic behavior” was
already in the record through Dr. Price’s testimony. Having failed to ar-
ticulate the character of this evidence from Dr. Price or the extent of any
overlap, however, we are not persuaded.

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46 No. 23-2906
* * *
To summarize: the Indiana Supreme Court did not unrea-
sonably apply Strickland when it concluded that Weisheit
failed to establish ineffective assistance of counsel, so he is not
entitled to habeas relief on these claims.
III. Conclusion
We observed at the outset that AEDPA intentionally pre-
sents a difficult standard for petitioners to meet. Weisheit has
not carried his burden to meet it. For that reason, and because
we agree with the district court’s related de novo and discre-
tionary decisions, we AFFIRM the district court’s judgment.

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