In the
    United States Court of Appeals
                 For the Seventh Circuit
                           ____________

No. 03-1384
KEITH B. CANAAN,
                                                Petitioner-Appellee,
                                  v.

DANIEL R. MCBRIDE, Warden,*
                                            Respondent-Appellant.

                           ____________
             Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
              No. 97 C 1847—David F. Hamilton, Judge.
                           ____________
    ARGUED NOVEMBER 20, 2003—DECIDED JANUARY 11, 2005
                      ____________




    Before BAUER, ROVNER, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. In the early morning hours of
December 29, 1985, a police officer arrived at Lori Bullock’s
apartment in Evansville, Indiana. The apartment had been
ransacked and the officer found Bullock dead, with a butcher
knife protruding from her throat and almost two dozen stab



*
   Daniel R. McBride is substituted as respondent for Cecil Davis
following Canaan’s transfer to the Maximum Control Facility at
Westville, Indiana.
2                                                No. 03-1384

wounds. Keith B. Canaan was arrested two days later and
charged with the crime. A jury convicted Canaan of murder,
burglary, and attempted criminal deviate conduct. At the
sentencing hearing that followed, Canaan’s counsel pre-
sented no mitigating evidence. Faced only with two aggra-
vating factors, the jury recommended the death penalty. The
judge accepted that recommendation and sentenced Canaan
accordingly.
   After unsuccessfully seeking post-conviction relief, Canaan
filed a petition for a writ of habeas corpus. The district
court granted him relief on three grounds. The first, in
which the court found Canaan’s trial counsel ineffective for
failing to advise him that he had the right to testify at the
penalty phase of his trial, affected only his death sentence.
The second and third grounds resulted in the vacation of his
conviction for attempted criminal deviate conduct. The
court found that the jury instruction for attempted criminal
deviate conduct failed to require the State to prove beyond
a reasonable doubt that Canaan had acted with specific
intent with respect to this crime, that this omission violated
his due process rights, and that his counsel was ineffective
for failing to object to this jury instruction. We affirm the
district court’s judgment granting habeas corpus relief with
respect to the death sentence, but we reverse with respect
to the conviction for attempted criminal deviate conduct.


                              I
  The following account of the underlying facts comes from
the opinions of the Indiana courts that considered Canaan’s
case. One or two weeks before Bullock’s death, Canaan had
knocked on the door of Bullock’s apartment and asked her
roommates whether he could wait in their living room until
their upstairs neighbors arrived. The roommates agreed,
and Canaan eventually fell asleep on their couch. The next
day, Canaan returned and one of Bullock’s roommates per-
No. 03-1384                                                  3

mitted him to use their phone. The evening of Bullock’s
murder, Canaan knocked on the door of her upstairs neigh-
bor, who later testified that he seemed nervous and “had a
strange look.” Canaan then went downstairs and was heard
knocking on the door of a first-floor apartment. Bullock
lived on the first floor. Around midnight, Canaan was seen
at a Bennigan’s restaurant with substantially more money
than he had possessed earlier in the day. Several hours
later, at another restaurant, he asked a waitress how he
could remove blood stains from his shirt. Canaan’s brother
testified that Canaan had told him that he killed a “biker”
at a bar the night before, and Canaan’s friend testified that
the afternoon following the murder, Canaan had noticed
some police nearby and said, “I’ve got to get out of here.” Fi-
nally, Canaan’s fingerprint was found on a box of spaghetti
found in Bullock’s apartment.
  Canaan was charged with murder, burglary, and criminal
deviate conduct, as well as being a habitual offender. The
State sought the death sentence based on the charged
aggravating circumstance of intentional killing during the
crimes of burglary and criminal deviate conduct, IND. CODE
§ 35-50-2-9(b)(1). The jury convicted Canaan on all three
counts. At the penalty phase, it found Canaan guilty of being
a habitual offender, thereby making him eligible for an ad-
ditional thirty-year sentence. See IND. CODE § 35-50-2-8(h).
Next, a death penalty hearing was held before the same jury.
Canaan did not testify at this hearing, and his counsel
presented no mitigating evidence. The jury recommended
that Canaan be sentenced to death. On November 26, 1986,
the court found that Canaan intentionally killed Bullock
while committing burglary and attempted criminal deviate
conduct. In the absence of any mitigating circumstances, it
concluded that there was nothing to outweigh the two
aggravating factors. On this basis, the court sentenced
Canaan to death.
4                                                 No. 03-1384

  Canaan appealed his conviction to the Indiana Supreme
Court, which affirmed. Canaan v. State, 

(Ind. 1989) (“Canaan I”), cert. denied, 

(1990).
Canaan’s trial lawyers also represented him on direct ap-
peal. Canaan then filed a petition for post-conviction relief,
which the Indiana post-conviction court denied. After un-
successfully appealing to the Indiana Supreme Court,
Canaan v. State, 

(Ind. 1997) (“Canaan II”),
cert. denied, 

(1998), Canaan filed a petition for
a writ of habeas corpus. The district court found no flaws in
Canaan’s convictions for murder and burglary, but it
concluded that “Canaan’s petition must be granted with
respect to the death sentence and the conviction for at-
tempted criminal deviate conduct.” The court found that
Canaan was denied effective assistance of counsel at the
death penalty phase when his lawyers failed to discuss with
him whether he should testify. The court also concluded that
the jury instruction on attempted criminal deviate conduct
denied Canaan due process of law because it did not require
the jury to find beyond a reasonable doubt the essential
element of a specific or conscious intent to penetrate the sex
organ of the victim with an object. Finally, the court found
that Canaan received ineffective assistance of counsel based
on his trial attorneys’ failure to object to those jury instruc-
tions. On this basis, the court issued a writ of habeas corpus
vacating Canaan’s death sentence and his conviction for
attempted criminal deviate conduct. The State has ap-
pealed.


                              II
                              A
  We consider first the order vacating Canaan’s death sen-
tence. The district court granted his petition in that respect
based on its finding that Canaan received constitutionally
ineffective assistance of counsel when his trial attorneys,
No. 03-1384                                                  5

Barry Standley and Beverly Harris, failed to consult with
him about whether he should testify at the penalty phase of
the trial. On appeal, the State argues that his claim that he
was “denied the right to testify” was procedurally defaulted
because Canaan did not fairly present it to the Indiana
Supreme Court. See 28 U.S.C. § 2254(b)(1); Baldwin v. Reese,

, 1349 (2004); Harris v. McAdory, 

, 668 (7th Cir. 2003).
  The State’s articulation of its argument makes plain the
flaw in it: Canaan seeks habeas corpus relief not on the
ground that he was “denied the right to testify,” as the State
suggests, but rather because he was denied effective as-
sistance when his counsel failed to advise him of his right
to testify. Because the distinction between these claims is
significant, it is necessary to review the evolution of Ca-
naan’s ineffective assistance of counsel claim before the
Indiana courts. Canaan’s post-conviction petition alleged
that he “was denied the effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to
the Constitution of the United States [because] . . . [c]ounsel
for petitioner failed to call petitioner as a witness during
the death penalty phase of the trial.” The Indiana post-con-
viction trial court rejected this argument, stating that “[t]he
decision not to call Petitioner as a witness during the pen-
alty phase of the trial is proper trial strategy.” That court
also found that “during the preparation for the trial, both
Counsel Standley and Co-Counsel Harris discussed with
petitioner his right to testify at both the guilt and penalty
phases of the trial.” Harris testified, however, that “when
we talked about him testifying at the trial, we were also
regarding that towards the penalty phase.” There is no
indication that Canaan knew that this was the lawyers’ in-
tention, nor that counsel ever advised him about the risks
and benefits of testifying at the penalty phase after he lost
at the guilt phase.
6                                                No. 03-1384

  On appeal to the Indiana Supreme Court, Canaan argued
that his counsel was ineffective not only for “decid[ing] not
to call Canaan as a witness at the penalty phase of the
trial,” but also for “fail[ing] to consult with him regarding
the decision.” Canaan suggested that his sentence might
have been different had he been permitted to testify, in that
“he could have filled in major gaps in the jury’s knowledge
regarding him.” The Indiana Supreme Court never addressed
Canaan’s argument that counsel failed to consult with him
about the desirability of testifying at the penalty phase,
when virtually all of the strategic reasons for refraining
from testifying had become moot. It instead addressed only
the argument that “counsel was ineffective for not calling
him as a witness at the penalty phase,” and on that point it
“affirm[ed] the post-conviction court’s conclusion that
Canaan ha[d] failed to demonstrate that the decision not to
call Canaan as a witness during the penalty phase consti-
tuted ineffective assistance of counsel.” Canaan 

. In his habeas corpus petition, Canaan
reiterated his ineffective assistance of counsel claim, assert-
ing among other things that “[n]either of his lawyers even
discussed with him whether he should testify during the
death sentence hearing,” even though “under the circum-
stances, he was the only source of mitigating information.”
On this basis, the district court found that Canaan was
“entitled to relief from his death sentence.”
  Although Canaan argued that his counsel was ineffective
for failing to advise him that he could testify in his filings
to both the Indiana Supreme Court and the district court,
the State makes no mention of this claim in its briefs before
this court. Rather, it contends only that “a claim that
Canaan was denied the right to testify was barred by pro-
cedural default.” Likewise, before the district court, the
State argued that “to the extent that Petitioner’s claim is
that he was denied his right to testify—rather than his right
to effective assistance of counsel—that claim is barred by
No. 03-1384                                                  7

procedural default as it was not raised in the state courts.”
Thus, despite three opportunities to assert procedural de-
fault—before the Indiana Supreme Court, the district court,
and this court—the State has never done so. The State’s
silence is significant because by failing to object to Canaan’s
claim on procedural default grounds, the State has waived
(or, more properly, forfeited) this argument. See Gregory-
Bey v. Hanks, 

, 1043 (7th Cir. 2003) (“As a
procedural default is not jurisdictional, any argument that
[a habeas petitioner] has defaulted his . . . claim can be
waived by the government.”); Hernandez v. Cowan, 

, 997 (7th Cir. 2000) (finding “waiver of waiver, now a
well-established doctrine,” where the State failed to object
to a habeas petitioner’s failure to seek state supreme court
review in his direct appeal and post-conviction proceedings);
cf. Momient-El v. DeTella, 

, 540 (7th Cir. 1997)
(refusing to find waiver of waiver by the State where it
presented its procedural default argument for the first time
on appeal to this court). As we are under no obligation to
invent a procedural default argument never raised by the
State, we move to the merits of Canaan’s claim.
  At the outset, we must address the standard under which
we review Canaan’s ineffective assistance of counsel claim.
Both parties and the district court assume that the stand-
ard provided in 28 U.S.C. § 2254(d) of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) governs
our analysis, but this position is not necessarily correct.
Ordinarily, § 2254(d) requires that we determine whether
the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court,” or “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” “This
standard only applies, however, to a ‘claim that was
adjudicated on the merits in State court proceedings.’ ”
Braun v. Powell, 

, 916 (7th Cir. 2000) (quoting
8                                                No. 03-1384

28 U.S.C. § 2254(d)); see also Oswald v. Bertrand, 

, 477 (7th Cir. 2004); Walton v. Briley, 

, 432
(7th Cir. 2004) (“The Antiterrorism and Effective Death
Penalty Act of 1996 does not apply in this case because the
state courts did not adjudicate the claim on the merits.”);
Ouska v. Cahill-Masching, 

, 1044 (7th Cir.
2001). The record in this case gives no indication that the
Indiana courts were aware that Canaan had presented to
them a claim of ineffective assistance of counsel based on
the failure to consult ground. Although he squarely pre-
sented this argument to the Indiana Supreme Court, its
decision makes no mention of this issue, even to reject it on
procedural grounds or to indicate that it found no need to
discuss the remaining issues in the case.
   When a state court is silent with respect to a habeas
corpus petitioner’s claim, that claim has not been “adjudi-
cated on the merits” for purposes of § 2254(d). See Hough v.
Anderson, 

, 904 n.13 (7th Cir. 2001) (reviewing
the petitioner’s claim de novo because “[t]he Supreme Court
of Indiana did not address this argument specifically in its
opinion”). As a practical matter, a federal court cannot
apply the deferential standard provided by § 2254(d) in the
absence of any state court decision on the issue. See Fortini
v. Murphy, 

, 47 (1st Cir. 2001) (“AEDPA imposes
a requirement of deference to state court decisions, but we
can hardly defer to the state court on an issue that the state
court did not address.”); Hogan v. Gibson, 

,
1306 (10th Cir. 1999) (holding that because the state court
“made no findings” as to the merits of the petitioner’s claim,
“it is axiomatic that there are no findings to which we can
give deference” and thus § 2254(d) does not apply). As we
said in Braun, “[a]ccordingly, we shall not employ the
standard of review set forth in AEDPA but, rather, must
rely upon the general standard as set forth in 28 U.S.C.
§ 2243,” which requires that we “ ‘dispose of the matter as
law and justice require.’ 

(quoting § 2243).
No. 03-1384                                                  9

See also Maples v. Stegall, 

, 436 (6th Cir.
2003); Norde v. Keane, 

, 410 (2d Cir. 2002);
Hameen v. State of Del., 

, 248 (3d Cir. 2000);
Mueller v. Angelone, 

, 570 n.9 (4th Cir. 1999).
  This understanding of § 2254(d)’s scope is consistent with
the Supreme Court’s decision in Wiggins v. Smith, 

(2003). Applying § 2254(d), the Court held that the
state post-conviction court had relied on an erroneous
factual assumption and unreasonably applied Strickland’s
performance prong in rejecting the habeas corpus peti-
tioner’s ineffective assistance of counsel 

. The Court then considered whether the petitioner had
satisfied Strickland’s prejudice requirement. 

so,
the Court did not apply § 2254(d), noting that “our review is
not circumscribed by a state court conclusion with respect to
prejudice, as neither of the state courts below reached this
prong of the Strickland analysis.” 

of Wiggins and
the consistent decisions of this and other circuits, we
conclude that our review of Canaan’s ineffective assistance
of counsel claim is governed not by § 2254(d), but by § 2243,
such that we must “dispose of the matter as law and justice
require.” (We add, however, that our ultimate resolution of
the case would not change even if we were asking whether
the state court’s silence amounted to an unreasonable
application of the law or determination of the facts, for the
reasons we discuss here.)
  Under Strickland, “[f]irst, the defendant must show
that counsel’s performance was deficient. . . . Second, the
defendant must show that the deficient performance pre-
judiced the defense.” 

, 687 (1984). The State
contends that Canaan cannot prevail on his ineffective
assistance of counsel claim because he “was advised of his
right to testify and accepted his counsels’ advice.” In sup-
port, the State cites the Indiana post-conviction court’s find-
ing that “during the preparation for the trial, both Counsel
Standley and Co-Counsel Harris discussed with petitioner
10                                               No. 03-1384

his right to testify at both the guilt and penalty phases of
the trial.” Despite the deference to which the state courts
are entitled, we conclude that this finding cannot stand.
The quoted statement is flatly contradicted by Standley’s
and Harris’s testimony during Canaan’s post-conviction
hearing acknowledging that they had not spoken with him
regarding his testifying at the penalty phase. (The testimony
Harris offered, to which we referred earlier, does not
contradict this statement—as we noted, she did not say that
Canaan knew they meant to include the penalty phase, and
she certainly did not say that they ever gave Canaan any
advice about the penalty phase that took into account the
critical facts of the jury’s convictions and findings on
habitual offender status.) When asked if he had addressed
testifying at the penalty phase with Canaan, Standley
stated, “I would say I probably didn’t. It is just not some-
thing that ever really crossed my mind that you ought to
do.” Harris likewise testified, “I don’t think we asked him if
he wanted to testify at the death phase.” The only hint that
Canaan’s attorneys raised this issue is Canaan’s own
proposed finding of fact to the post-conviction court, which
stated: “Petitioner was told by trial counsel that he should
not testify at either part of the trial and that he would not
be called as a witness.” (Emphasis added.) This statement,
however, merely suggests that the earlier generic discussion
occurred; it does not indicate that Canaan’s counsel discussed
this issue with him at the penalty phase, when the stakes
were substantially different from those at the guilt phase.
At oral argument, the State conceded that the Indiana post-
conviction court made no finding that Canaan’s counsel had
consulted with him at the penalty phase regarding his
testifying. Moreover, the testimony of Canaan’s counsel
shows that this conversation never occurred. The district
court thus did not err in finding that “the evidence from
Canaan’s lawyers shows that they did not ever discuss with
him whether he should testify at the critical penalty phase
of the trial.”
No. 03-1384                                                11

   We turn, then, to the question whether Canaan’s coun-
sel’s failure to advise him that he was entitled to testify at
the penalty phase constituted deficient performance. Under
Strickland, Canaan must prove that his trial counsel “made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Our review of the adequacy of his counsel’s per-
formance must be “highly deferential” and “indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” 

(internal quotation marks
omitted). The Supreme Court has “declined to articulate spe-
cific guidelines for appropriate attorney conduct.” 

. Instead, it has “emphasized that ‘[t]he
proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.’ ” 

466 U.S. at 688).
  We follow the Court’s lead in Strickland and Wiggins by
looking first to the ABA Standards for Criminal Justice and
the ABA Guidelines for the Appointment and Performance
of Defense Counsel in Death Penalty Cases. See 

(“Prevailing norms of practice as reflected
in American Bar Association standards and the like, e.g.,
ABA Standards for Criminal Justice, are guides to deter-
mining what is reasonable.” (internal citation omitted));

. While these standards are not
determinative, see 

-89, they
nonetheless represent “well-defined norms” on which the
Court has routinely relied, see 

.
These sources confirm that Canaan’s counsel fell short of
professional norms when they failed to consult with him
regarding his testifying at the penalty phase. Under the
heading “The Defense Case Concerning Penalty,” the ABA
Guidelines provide that “[c]ounsel should consider, and dis-
12                                                No. 03-1384

cuss with the client, the possible consequences of having the
client testify or make a statement to the sentencing or
reviewing body or individual.” ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death
Penalty Cases Guideline 10.11 (2003) (emphasis added).
The ABA’s Commentary to Guideline 10.11 reiterates this
standard: “Counsel should also consider, in consultation
with the client, the possibility of the client expressing
remorse for the crime in testimony, in allocution, or in a
post-trial statement.” 

cmt. Likewise, in
its section on Defense Function, the ABA Standards for
Criminal Justice provide that “[d]efense counsel should
alert the accused to the right of allocution” at sentencing.
ABA Standards for Criminal Justice, Defense Function
Standard 4-8.1(d) (3d ed. 1993). Finally, the National Legal
Aid and Defender Association’s Performance Guidelines
state that “[i]n preparing for sentencing, counsel should
consider the need to . . . inform the client of his or her right
to speak at the sentencing proceeding.” National Legal Aid
and Defender Association Performance Guidelines for
Criminal Defense Representation 8.3 (1995). In failing to
advise Canaan of his right to testify at the penalty phase,
Canaan’s counsel also defaulted on their “duties to consult
with the defendant on important decisions and to keep the
defendant informed of important developments in the
course of the prosecution.” 

; see
also IND. RULES OF PROF ’L CONDUCT R. 1.4(b) (“A lawyer shall
explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the
representation.”); Hall v. Washington, 

, 749
(7th Cir. 1997) (emphasizing that “[i]n the context of a
capital sentencing hearing, it is particularly important that
counsel not be allowed to shirk her responsibility”).
  Even apart from these general standards, the conduct of
Canaan’s counsel was deficient when viewed in light of the
facts and circumstances of his case. See 

(“[T]he performance inquiry must be whether
No. 03-1384                                                13

counsel’s assistance was reasonable considering all the cir-
cumstances.”). In their testimony at the post-conviction
hearing, Canaan’s counsel did not suggest that their failure
to advise him that he could testify at the penalty phase
arose from any “sound trial strategy.” See 

Rather,
attorney Standley testified that “[i]t is just not something
that ever really crossed my mind that you ought to do.” See

(finding counsel’s conduct unrea-
sonable where it “resulted from inattention, not reasoned
strategic judgment”). While attorney Harris explained that
they decided not to call Canaan as a witness at the guilt
phase because “his prior impeachable offenses . . . were just
terrible” and he had a cool demeanor, she did not suggest
that either of these justifications were persuasive in the
context of the penalty phase of Canaan’s trial. Because
Canaan’s attorneys opted to conduct his habitual offender
status determination before the sentencing phase, the jury
already knew about his prior offenses. As we have already
noted, his attorneys presented no mitigating evidence at the
sentencing hearing, even though the court and the jury had
before them two aggravating factors and attorney Standley
was aware, in his own words, that Canaan “didn’t have a
very good upbringing.” Thus, as Canaan’s counsel acknowl-
edged in the post-conviction hearing, “by the time the jury
decided the death penalty portion of his trial, the only
background information they would have had would have
been his prior record.” In the absence of any other miti-
gating evidence, counsel should have informed Canaan of
his right to testify on his own behalf.
   Instead of receiving advice from counsel, Canaan received
none at the critical moment. We note in this connection that
such advice might go either way: a competent lawyer might
advise a client like Canaan to testify, but under some
circumstances she might equally advise a client not to tes-
tify. The point here is that the final choice must be the
client’s, after receiving whatever advice the lawyer chooses
14                                               No. 03-1384

to offer. In Canaan’s case, given the importance of his testi-
mony as the only mitigating evidence available to the jury,
and the professional norms emphasizing counsel’s obli-
gation to advise a defendant of his right to testify at the
penalty phase, Canaan’s lawyers were deficient in failing to
consult with him about this issue.
   Canaan can prevail on his Strickland claim, however, only
if he can show that his counsel’s deficient performance
prejudiced him. To show prejudice in the capital sentencing
context, a petitioner must establish “that a reasonable
probability exists that, but for counsel’s substandard per-
formance, the sentencer ‘would have concluded that the
balance of aggravating and mitigating circumstances did
not warrant death.’ ” 

(quoting Strick-

). A “reasonable probability” of a
different result is one “sufficient to undermine confidence in
the outcome.” 

. “Even if the odds
that the defendant would have been acquitted had he
received effective representation appear to be less than fifty
percent, prejudice has been established so long as the
chances of acquittal are better than negligible.” United
States ex rel. Hampton v. Leibach, 

, 246 (7th
Cir. 2003).
  As we have discussed, Canaan’s testimony at the penalty
phase would have been the only mitigating evidence the
jury heard. The Indiana death penalty statute requires the
jury to weigh aggravating and mitigating circumstances
before recommending a sentence, IND. CODE § 35-50-2-9(l),
and so the effect of presenting no mitigating evidence at the
penalty phase was that the jury considered only the two
aggravating circumstances. With nothing to put on the
mitigating side of the scale, the jury was almost certain to
choose a death sentence. The testimony Canaan was pre-
pared to offer, which he presented at his post-conviction
hearing, may have persuaded the jury to be lenient. Canaan
described a deeply troubled history of the kind the Supreme
No. 03-1384                                                 15

Court has found relevant at the penalty phase. See 

. Specifically, Canaan would have testified
to his lifelong struggle with drugs and alcohol and to the
physical and emotional abuse he suffered as a child. Ca-
naan’s father often beat him until his mother or brother
intervened. After Canaan’s father caught him sniffing paint,
he spray-painted the entire left side of Canaan’s body. On
several occasions, Canaan’s mother forced him and his
siblings into the family’s car and drove recklessly towards
their house, threatening to kill everyone because “her
nerves had about had it.” When Canaan was later placed in
a juvenile facility, he was diagnosed as “dangerous to self
and others,” and had to go through “reality therapy.” Ca-
naan’s testimony also chronicled a lengthy history of sub-
stance abuse. At age sixteen, Canaan was charged with
auto theft, and the court ordered him to see a psychologist
to address his chemical dependency. His parents refused to
pay the $50 per visit charge, however, so he never received
treatment. Canaan further testified that between the ages
16 and 27, when he was arrested for Bullock’s murder,
there were no significant periods of time when he did not
regularly use alcohol and drugs, including PCP, marijuana,
acid, Quaaludes, and cocaine. During Canaan’s 42-month
incarceration at Westville Correctional Institute, from which
he was released shortly before he was arrested for killing
Bullock, he used cocaine twice a week, as well as marijuana
and PCP (an unfortunate comment on the state’s correc-
tional institutions, as well as on Canaan). He was addicted
to cocaine when released and used alcohol and cocaine until
his arrest.
  This account makes clear that Canaan “has the kind of
troubled history we have declared relevant to assessing a
defendant’s moral culpability.” 

(citing Penry v. Lynaugh, 

, 319 (1989) (“[E]vi-
dence about the defendant’s background and character is
relevant because of the belief, long held by this society, that
16                                                No. 03-1384

defendants who commit criminal acts that are attributable
to a disadvantaged background . . . may be less culpable
than defendants who have no such excuse.” (internal quota-
tion marks omitted))); Eddings v. Okla., 

, 112
(1982) (noting that consideration of the offender’s life history
is a “part of the process of inflicting the penalty of death”
(internal quotation marks omitted)); see also Emerson v.
Gramley, 

, 907 (7th Cir. 1996) (finding prejudice
where counsel failed to introduce evidence “of a life that one
juror in twelve might find so bleak, so deprived, so har-
rowing, [and] so full of horrors” as to refuse to recommend
death, particularly “[w]ith no evidence of mitigation before
the jury despite irrefutable evidence of aggravating circum-
stances”). Where the state death penalty statute, as in
Indiana, requires the sentencer to consider all mitigating
factors relevant to imposition of the death penalty, we have
emphasized that “defense counsel must make a significant
effort . . . to ably present the defendant’s fate to the jury
and to focus the attention of the jury on any mitigating
factors.” 

(internal quotation marks
omitted). Canaan’s counsel fell down in that responsibility.
Had the jury been aware of this considerable mitigating
evidence, there is a reasonable probability that it would
have returned with a different sentence. On this basis, we
affirm the district court’s grant of habeas corpus relief to
Canaan with respect to his ineffective assistance of counsel
claim and hold that he is entitled to a new hearing on his
sentence.


                              B
  The district court also granted Canaan’s petition for
habeas corpus relief with respect to his conviction for at-
tempted criminal deviate conduct. That conviction, it held,
was based on a jury instruction that violated Canaan’s due
process rights, because the instruction relieved the State of
its burden to prove beyond a reasonable doubt Canaan’s
No. 03-1384                                                17

specific intent to penetrate Bullock’s sex organ with an
object. See In re Winship, 

(1970). In addition,
the court held that Canaan’s counsel was ineffective in fail-
ing to object to this jury instruction. On appeal, the State
identifies several reasons for reversal: procedural default of
the due process claim, an adequate and independent state
ground based on the finding of the state post-conviction
court of no fundamental error, and no error on the merits.
We agree with the last of these points: reading the jury
instructions as a whole, we conclude that they adequately
established the elements of attempted criminal deviate
conduct under Indiana law at the time of Canaan’s trial and
sentencing. Canaan therefore cannot prevail on the merits
of his due process claim, and we need not reach the State’s
procedural default argument.
  Before addressing the merits of Canaan’s claim, we ad-
dress once again the appropriate standard of review. As we
have discussed, the deferential standard imposed by
28 U.S.C. § 2254(d) applies only if Canaan’s due process
claim was “adjudicated on the merits.” See, e.g., 

. Otherwise, we evaluate his claim under the
pre-AEDPA standard of 28 U.S.C. § 2243, which instructs
that we “dispose of the matter as law and justice require.”
With respect to Canaan’s due process claim, the correct
standard is not obvious. The Indiana Supreme Court’s only
discussion of Canaan’s claim on post-conviction review
consisted of its statement that, “[a]s the post-conviction
court properly concluded, this issue was decided adversely
to Canaan on direct appeal. It is not available for relitiga-
tion here.” Canaan 

(internal citation
omitted). We have repeatedly held, in the context of de-
ciding whether a petitioner has procedurally defaulted her
claim, that where a post-conviction court has “based its
disposition of [the petitioner’s claim] on its conclusion that
the merits of the claim ha[s] been resolved previously,” it
has conducted “a merit-based determination [that] is not a
18                                              No. 03-1384

bar to further consideration in a federal habeas action.”
Page v. Frank, 

, 907 (7th Cir. 2003). This
language suggests that the Indiana Supreme Court’s dispo-
sition of Canaan’s claim on the ground that it was decided
adversely to him on direct appeal should qualify as an “ad-
judication on the merits” and therefore trigger § 2254(d)’s
deferential standard of review. The difficulty with this
conclusion is that both the Indiana Supreme Court and
post-conviction court erred in finding that Canaan’s due
process claim had been decided adversely to Canaan on
direct appeal. In fact, Canaan presented this claim for the
first time on post-conviction review and therefore neither
court considered the merits of the claim on direct appeal.
Therefore, as the Indiana Supreme Court only asserted that
it had addressed the merits of Canaan’s claim, but in fact it
never did so, it is not clear that § 2254(d) governs our
analysis. We need not resolve this conundrum, however, as
Canaan cannot prevail even under § 2243’s more liberal
standard of review.
  In Winship, the Supreme Court famously stated: “Lest
there remain any doubt about the constitutional stature of
the reasonable-doubt standard, we explicitly hold that the
Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is 

. In applying Winship to jury instructions,
the Court has emphasized that “[b]efore a federal court may
overturn a conviction resulting from a state trial in which
th[e] instruction was used, it must be established not
merely that the instruction is undesirable, erroneous, or
even ‘universally condemned,’ but that it violated some
right which was guaranteed to the defendant by the
Fourteenth Amendment.” Cupp v. Naughten, 

,
146 (1973). Thus, the question for us “is not whether the
trial court failed to isolate and cure a particular ailing
instruction, but rather whether the ailing instruction by
No. 03-1384                                                19

itself so infected the entire trial that the resulting convic-
tion violates due process.” 

Indeed, it is a “well-
established proposition that a single instruction to a jury
may not be judged in artificial isolation, but must be viewed
in the context of the overall charge.” 

  In light of these standards, we must determine whether
the jury instructions in Canaan’s case, read as a whole,
failed to instruct the jury in an element of the crime of
attempted criminal deviate conduct, thereby relieving the
State of its obligation under the Due Process Clause to prove
beyond a reasonable doubt every element of the offense. See
United States v. Gaudin, 

, 522-23 (1995);
Jenkins v. Nelson, 

, 492 (7th Cir. 1998). The
instruction in question reads as follows:
    A person attempts to commit a crime when, acting with
    the culpability required for commission of the crime, he
    engages in conduct that constitutes a substantial step
    toward commission of the crime. . . . To convict the
    defendant of the crime of Attempted Criminal Conduct
    an included offense of Criminal Deviate Conduct, as
    charged in Count III, the State must have proved each
    of the following elements: The defendant
    1. knowingly/intentionally
    2. engaged in conduct that constituted a substantial
    step toward commission of the crime of Criminal Deviate
    Sexual Conduct
    3. which conduct was an attempt to penetrate the sex
    organ of Lori Bullock with an object, to-wit: a knife
    4. the defendant used deadly force.
The jury instructions also defined the term “deviate sexual
conduct” as “an act involving: (1) A sex organ of one person
and the mouth or anus of another person; or (2) The pene-
tration of the sex organ or anus of a person by an object.”
20                                               No. 03-1384

   Before deciding whether Canaan’s jury instructions re-
moved a necessary element of the crime of attempted crim-
inal deviate conduct from the jury’s consideration, we must
first establish the elements of that crime under Indiana
law. At issue is whether, at the time of Canaan’s trial and
sentencing in November 1986, the “specific intent” element
of the general crime of attempt required proof that the
defendant acted intentionally, that is, with a conscious
objective, or whether proof that he acted knowingly would
suffice. The Indiana Supreme Court discussed the elements
of the crime of attempt in Zickefoose v. State, 

(Ind. 1979), which interpreted Indiana’s then-new
general attempt statute, IND. CODE § 35-41-5-1 (1978). The
court explained that “[a]lthough there are somewhat varying
definitions of what conduct actually constitutes an attempt,
there is fundamental agreement on the two necessary ele-
ments of the crime. First, the defendant must have been ac-
ting with a specific intent to commit the crime, and second,
he must have engaged in an overt act which constitutes a
substantial step toward the commission of the crime.” 

see also Scott v. State, 

, 904 (Ind. 1980)
(“[A] specific intent is required to prove an attempt.”). In
light of Zickefoose, Canaan contends that the instruction for
attempted criminal deviate conduct “fails to inform the jury
that before Canaan could be convicted of such offense, they
must find that he engaged in the prohibited conduct with
the specific intent to commit the crime of criminal deviate
conduct.” He argues that the instruction wrongly permitted
the jury to convict him “of the offense if he ‘knowingly’ acted
against the victim,” rather than requiring that it find “that
the conduct concurred with the conscientious objective (or
specific intent) to accomplish such penetration.” The State
responds that Canaan is mistaken, because under Indiana
law “[a]t the time of Canaan’s crime, the required mens rea
for an attempt crime could be either knowing or inten-
tional.”
No. 03-1384                                               21

  The difficulty in evaluating these competing interpre-
tations of Indiana law arises from the varied meanings at-
tributed to the term “specific intent” by the Indiana courts.
See Richeson v. State, 

, 1009 n.1 (Ind. 1998)
(“Review of case law from this Court and the Court of
Appeals indicates that the term ‘specific intent’ has several
conflicting definitions.”). In light of this ambiguity, it is
most helpful to ask whether Indiana law at the time of
Canaan’s conviction required the State to prove that it was
Canaan’s conscious objective to penetrate the victim’s sex
organ or whether it allowed the State to prove that Canaan
acted knowingly or with a conscious objective in penetrating
the victim’s sex organ. While Canaan relies on Zickefoose’s
statement that “the defendant must have been acting with
a specific intent to commit the 

, in
arguing that the instructions were erroneous, he fails to
recognize subsequent Indiana Supreme Court cases clarify-
ing that the element of “specific intent” can encompass
either intentional conduct—that is, conduct resulting from
a “conscious objective”—or knowing conduct. In Scott, which
was decided after Zickefoose but prior to Canaan’s trial and
sentencing, the Indiana Supreme Court reiterated that “a
specific intent is required to prove an attempt,” but went on
to explain that “[t]he very elements of knowingness or
intention which must be proved in order to establish murder
satisfy the State’s burden of proving the same elements in
an attempt to murder.” 

(emphasis
added). The Indiana Supreme Court further clarified its
position in Woodford v. State, 

(Ind. 1986),
which also preceded Canaan’s trial. In Woodford, the
defendant asserted that, under Zickefoose, “ ‘knowingly’ is
not sufficient culpability for an attempt crime, and a
conviction for attempted rape can be sustained only if the
State established that the defendant acted ‘intentionally.’ ”

The court squarely rejected this argument,
explaining that Zickefoose “did not involve distinguishing
between the terms ‘knowingly’ and ‘intentionally,’ and the
22                                                 No. 03-1384

phrase ‘specific intent’ was used only to generally denote
the required culpability.” 

of these cases, Canaan cannot state a due process
claim based on failure of the jury instructions to require the
State to prove that it was his conscious objective to pene-
trate Bullock’s sex organ. Under Indiana law at the time of
his trial, it was sufficient for the jury instructions to require
that the State prove knowing action on his part. Because
the instructions did so, we need not address the State’s
additional argument that the Indiana Supreme Court’s
subsequent decisions limited Zickefoose’s specific intent rule
to cases of attempted murder. See, e.g., 

. As the instruction for attempted criminal deviate
conduct required that the State prove beyond a reasonable
doubt that Canaan acted “knowingly/intentionally,” Ca-
naan’s due process rights were not violated by this instruc-
tion. See 

.
   Canaan also argues that even if he cannot prevail on his
first challenge to the instructions, his due process rights
were still violated because the attempted criminal deviate
conduct instruction applied the knowing/intentional conduct
requirement to “an attempt to penetrate the sex organ of
Lori Bullock with an object,” not to the penetration itself. The
instruction required the jury to find that Canaan “know-
ingly/intentionally engaged in conduct that constituted a
substantial step toward commission of the crime of Crimi-
nal Deviate Sexual Conduct,” where “conduct” was defined
as “an attempt to penetrate the sex organ of Lori Bullock
with an object, to-wit: a knife.” Read together, these ele-
ments of the instruction required that the jury find that
Canaan knowingly/intentionally engaged in an attempt to
penetrate the sex organ of Lori Bullock. Canaan contends
that the instruction therefore was erroneous, because “the
mens rea language modifies only the conduct element of the
crime and not the result (harm) element.” The instruction,
he continues, fell short in two ways: first, it failed to inform
No. 03-1384                                               23

the jury that the State had to prove that Canaan knowingly
or intentionally sought to penetrate Bullock’s sex organ;
and second, it did not make clear that the State had to do
more than prove that he knowingly or intentionally engaged
the conduct that constituted a substantial step towards the
penetration of her organ. See 

(stating that to prove attempt, the State must prove that
“the defendant must have been acting with a specific intent
to commit the crime” (emphasis added)).
  In evaluating this claim, we heed the Supreme Court’s
“well-established proposition that a single instruction to a
jury . . . must be viewed in the context of the overall
charge.” 

. While the trial court’s
articulation of the elements of attempted criminal deviate
conduct in the jury instruction may not have been perfect,
we must look at the instructions as a whole to determine
whether Canaan has presented a valid due process claim.
In this regard, the Indiana Supreme Court’s decision in
Clemons v. State, 

(Ind. 1981), is instructive.
The trial court in Clemons instructed the jury in attempted
murder as follows:
    To convict the defendant the State must have proved
    each of the following elements:
    The defendant James Burnus Clemons,
    1. did knowingly or intentionally,
    2. shoot a hand gun at and hit the body of Bruce Bur-
    nett with the bullet
    3. that the conduct was a substantial step toward the
    commission of the crime of Murder.

The defendant objected that “this instruction is
incomplete in that it does not set forth the element of spe-
cific intent to kill but only mentions the knowing or in-
tentional shooting of the gun.” 

Supreme
Court found “no merit to this argument since the court
24                                               No. 03-1384

further instructed the jury on the definition of the crime of
murder . . . and the necessary element of the specific intent
to kill is correctly set out therein.” 

basis, the
court held that the “instructions taken as a whole ade-
quately covered the definition of attempted murder.” 

even if the attempted criminal deviate
conduct instruction in Canaan’s case did not correctly set
out the specific intent requirement, it is still possible that
the instructions as a whole adequately conveyed the ele-
ments of attempted criminal deviate conduct. We find that
this is the case here. The jury instruction for criminal de-
viate conduct explained that “[a] person who knowingly
causes another person to perform or submit to deviate sexual
conduct commits deviate sexual conduct.” In addition, the
criminal deviate conduct instruction provided:
     To convict the defendant the State must have proved
     each of the following elements: The defendant
     1. knowingly on or about DECEMBER 28, 1985 TO
     DECEMBER 29, 1985
     2. caused another person, to-wit: LORI L. BULLOCK,
     to submit to deviate s[e]xual conduct when
     3. the defendant used deadly force.
This instruction clarifies the intent element of the attempted
criminal deviate conduct instruction, particularly in light of
the latter instruction’s explanation that “[a] person at-
tempted to commit a crime when, acting with the culpability
required for the commission of the crime, he engaged in
conduct constituting a substantial step toward commission
of the crime.” (emphasis added). See Alexander v. State, 

, 100 (Ind. 1988); cf. Smith v. State, 

, 357-58 (Ind. 1984) (finding fundamental error where
the attempted murder instruction required only that the
defendant “knowingly[ ] [e]ngaged in conduct that consti-
tuted a substantial step toward the commission of Murder,”
No. 03-1384                                               25

but the jury was not instructed in the elements of murder).
We acknowledge that in Canaan’s case the jury instruction
for attempted criminal deviate conduct was not ideal. That
said, the jury instructions, when read as a whole, made
clear the correct relation and thus communicated the
requisite elements of attempted criminal deviate conduct
under Indiana law. Canaan therefore cannot establish that
the instructions “so infected the entire trial that the
resulting conviction violates due process.” 

.
  In light of this conclusion, Canaan cannot show that his
lawyers were ineffective in failing to object to the instruc-
tions. As we have found no constitutional error in the in-
structions themselves, the lawyers’ performance with respect
to them could not have fallen below the constitutional
minimum.


                            III
  Because Canaan’s counsel was ineffective in failing to con-
sult with him regarding his right to testify at the penalty
phase of the trial, we AFFIRM the judgment of the district
court issuing a writ of habeas corpus on this basis and
vacating his death sentence. We REVERSE that part of the
district court’s judgment granting Canaan habeas corpus
relief based on his claims relating to the attempted criminal
deviate conduct conviction. The State of Indiana is free to
conduct a new death penalty hearing, providing that the
State files appropriate documents seeking such relief within
120 days of the mandate of this court.
26                                        No. 03-1384

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—1-11-05