In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2110

JULIAN L OPEZ,
                                             Petitioner-Appellant,
                                v.

M ICHAEL T HURMER,
                                             Respondent-Appellee.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
        No. 05-C-00999—Charles N. Clevert, Jr., Chief Judge.



    A RGUED M ARCH 31, 2009—D ECIDED F EBRUARY 5, 2010




 Before F LAUM, M ANION, and R OVNER, Circuit Judges.
  R OVNER, Circuit Judge. A Wisconsin jury convicted
Julian Lopez of first-degree intentional murder as a
party to a crime. See W IS. S TAT. §§ 940.01(1)(a), 939.05.
Lopez claims that his trial counsel provided ineffective
assistance by failing to request, or even discuss with
him, a jury instruction on the lesser-included offense of
felony murder. After exhausting his state post-conviction
remedies, Lopez filed a petition for a writ of habeas
2                                               No. 08-2110

corpus. See 28 U.S.C. § 2254. The district court denied his
petition but issued a certificate of appealability. The
state post-conviction court did not unreasonably apply
clearly established federal law to the facts of Lopez’s
case, so we affirm the district court’s judgment.


                             I.
   At trial, the state presented evidence that Lopez shot
Khaled Jilani five times at close range. A police officer
testified that she was on patrol when she saw a car, later
determined to be Jilani’s, ignore a stop sign. The officer
then saw two men flee the car, one of whom was
carrying a gun. She pursued and eventually appre-
hended the man with the gun, who turned out to be
Lopez. A forensic pathologist testified that the gun
found on Lopez was used to kill Jilani, that gunshot
residue was found on Lopez’s clothing, and that the
gun had been very close to Jilani’s head and neck when
the five fatal shots were fired. Under Wisconsin law,
because the gun was in such close proximity to “vital
parts” of Jilani’s body when it was fired, a presumption
arose that the shooter intended to kill his victim. See
Smith v. State, 

, 862 (Wis. 1975).
  The state presented further evidence connecting Lopez
to the killing. Ernesto Lopez, who is Julian’s nephew,
testified about what Julian had told him regarding the
incident. Julian told Ernesto that he and another one of
his nephews, Arthur Lopez, entered Jilani’s car to col-
lect a drug debt; they were wearing masks and began to
pistol-whip Jilani. But Julian accidentally uttered Arthur’s
No. 08-2110                                                3

name during the attack, which alerted Jilani to the
identity of his assailants, so Julian shot and killed Jilani.
Luis Acevedo also testified about what Julian had told
him regarding the incident. Julian told Acevedo that
he and Arthur entered Jilani’s car on the night of the
killing, again in disguise to collect on the drug debt. In
the version of the story Julian told Acevedo, however,
it was Arthur who shot and killed Jilani after Jilani saw
through Arthur’s disguise and uttered his name. Both
Acevedo and Ernesto had agreed to testify against Julian
in exchange for favorable plea agreements with the state
on unrelated charges.
  Julian testified in his own defense that he had no plans
to commit any crime. Instead, he explained, he, Arthur,
and Loyd Guzior were driving to get something to
eat when Arthur unexpectedly directed Guzior to pull up
behind a parked car; Arthur then approached the car
and got inside. After five minutes passed, Julian walked
up to the car and saw Arthur and Jilani fighting inside.
According to Julian, he got inside the car to protect
Arthur, and although he tried to bring the scuffle to a
nonviolent end, he was not able to prevent Arthur from
shooting Jilani. Arthur dropped the gun while fleeing the
car, Julian explained, and he grabbed the gun before
fleeing himself.
  At the jury-instruction conference, Lopez’s counsel
informed the court that he was not requesting instruc-
tions on any lesser-included offenses to first-degree
intentional murder. The court asked counsel whether
he had discussed requesting instructions on lesser-in-
4                                               No. 08-2110

cluded offenses with Lopez; counsel replied that he
had, and Lopez confirmed to the court that he agreed
with the decision.
  After he was convicted and sentenced to life imprison-
ment, Lopez filed a motion in state court for post-convic-
tion relief, alleging that counsel’s performance was consti-
tutionally deficient because counsel had neither dis-
cussed an instruction on the lesser-included offense of
felony murder with him nor asked for one from the
court. The state trial court denied Lopez’s motion, rea-
soning that because “there was no reasonable basis for
acquittal” on the charge of being a party to first-degree
murder, the court would not have been required under
Wisconsin law to grant counsel’s request for a felony-
murder instruction even if he had made one. See State
v. Kramar, 

, 327 (Wis. 1989). After a thor-
ough examination of the evidence, and relying on a
slightly different formulation than the trial court, the
state appellate court agreed that Lopez was not entitled
to a felony-murder instruction under Wisconsin law
because “a reasonable jury could have found Julian
Lopez guilty of first-degree intentional homicide.” State v.
Lopez, 

(Wis. Ct. App. 2004). Because
Lopez was not entitled to a felony-murder instruction,
the court concluded, counsel’s failure to request one was
not constitutionally deficient. See State v. Van Straten,

, 454-55 (Wis. Ct. App. 1987). The court
also observed that “the record belies” Lopez’s allegation
that counsel never discussed a felony-murder instruction
with him, noting in particular the exchange between
the court, counsel, and Lopez at the jury-instruction
No. 08-2110                                               5

conference, and refused to grant an evidentiary hearing
on the matter. The state supreme court denied review.
  Lopez then petitioned for a writ of habeas corpus in
federal district court. See 28 U.S.C. § 2254. The district
court confined its review to the question whether the
state appellate court’s decision was an “unreasonable
application” of Strickland to the facts of Lopez’s case,
see 

and concluded that it was not. The
district court ruled that counsel’s failure to request a
felony-murder instruction was not constitutionally defi-
cient because Lopez was not entitled to the instruction.
The district court also reasoned that counsel’s alleged
failure to discuss a felony-murder instruction with
Lopez, even if true, could not be constitutionally
deficient, again because Lopez was not entitled to the
felony-murder instruction. Finally, the district court
concluded that Lopez was not entitled to an evidentiary
hearing regarding counsel’s alleged failure to discuss a
felony-murder instruction with him because the record
demonstrated that Lopez was not entitled to the instruc-
tion under state law, see State v. Bentley, 

,
53 (Wis. 1996), and thus he was not entitled to col-
lateral relief in federal court.


                            II.
  We review de novo the district court’s denial of Lopez’s
petition for a writ of habeas corpus. See Lucas v. Montgom-
ery, 

, 1030 (7th Cir. 2009). We may not
grant relief unless the state appellate court’s adjudication
6                                               No. 08-2110

of Lopez’s constitutional claims resulted in a decision
that is either (1) contrary to, or involved an unreasonable
application of, clearly established federal law as deter-
mined by the Supreme Court or (2) based on an unrea-
sonable determination of the facts in light of the
evidence presented in the state court proceeding. See 28
U.S.C. § 2254(d); 

.
  Lopez makes two arguments on appeal. He contends
that the state appellate court’s application of Strickland to
the facts of his case was unreasonable because the court
applied the wrong standard under Wisconsin law to
determine whether he was entitled to a felony-murder
instruction. See 28 U.S.C. § 2254(d)(1). He also contends
that the state appellate court’s factual determination
that counsel had discussed a felony-murder instruction
with him was unreasonable in light of the evidence
he presented. See 

  Lopez’s first argument—that the state appellate court’s
application of Strickland to the facts of his case was unrea-
sonable—cannot overcome a number of hurdles. Ac-
cording to Lopez, the state appellate court applied
the wrong standard under Wisconsin law to determine
whether he was entitled to a felony-murder instruc-
tion: instead of inquiring whether the jury could have
found him guilty of first-degree intentional murder, he
argues, the state appellate court should have inquired
whether the jury could have acquitted him of first-degree
intentional murder. But, as Lopez concedes, we may not
grant habeas relief under 28 U.S.C. § 2254 merely
because a state court has misinterpreted or misapplied
No. 08-2110                                                7

state law. Huusko v. Jenkins, 

, 637 (7th Cir.
2009). And we will not fault counsel as ineffective
for failing to advance a position under state law that
the state appellate court said was meritless. George v.
Smith, 

, 483-84 (7th Cir. 2009). Because we leave
undisturbed the state appellate court’s holding that
Lopez was not entitled to a felony-murder instruction, its
additional ruling that counsel’s performance was con-
stitutionally adequate under Strickland was reasonable. It
is not “ ‘well outside the boundaries of permissible differ-
ences of opinion,’ ” Emerson v. Shaw, 

, 684 (7th
Cir. 2009) (quoting Hardaway v. Young, 

, 762
(7th Cir. 2002)), to conclude that counsel’s performance is
constitutionally adequate when he fails to request an
instruction that, as a matter of state law, the defendant is
not entitled to in the first place.
  Lopez attempts to circumvent this conclusion by in-
sisting that he is not asking us to issue a writ of habeas
corpus on the ground that the state appellate court
misinterpreted or misapplied Wisconsin law. Instead he
appears to argue that, because the jury did not receive a
felony-murder instruction, he suffered a fundamental
miscarriage of justice implicating his federally protected
due-process rights. See Reeves v. Battles, 

, 920
(7th Cir. 2001); Robertson v. Hanks, 

, 710 (7th
Cir. 1998); Nichols v. Gagnon, 

, 1269, 1272 (7th
Cir. 1983). To succeed on a fundamental-miscarriage-of-
justice claim, Lopez must show that, if presented with a
felony-murder instruction, a jury would “probably” have
acquitted Lopez of being a party to first-degree inten-
tional murder. See 

.
8                                               No. 08-2110

   But this alternative claim gets Lopez no further. An
argument that the state trial court’s failure to instruct
the jury on felony murder amounts to a fundamental
miscarriage of justice is not properly before us, for Lopez
never presented this theory on state post-conviction
review. See 28 U.S.C. § 2254(b)(1)(A); Pole v. Randolph, 

, 934-35 (7th Cir. 2009). But Lopez’s argument
would fail even if we ignored the procedural default
because we cannot say on this record that Lopez
probably would have been acquitted of first-degree
intentional murder. At least one witness testified that
Lopez fired a gun in close proximity to vital parts of
Jilani’s body, thereby creating a presumption of an inten-
tional killing; another witness testified that Lopez aided
his nephew in the close-range shooting. Either view
amply supports the conviction that Lopez was a party
to the crime of first-degree murder. What’s more,
forensic evidence and eyewitness accounts also placed
the gun in Lopez’s possession shortly after Jilani was
shot. We do not think that the absence of a felony-
murder instruction probably resulted in the conviction
of an innocent man.
  But even if Lopez had been entitled to a felony-
murder instruction, we doubt that counsel’s decision not
to request one would have amounted to constitutionally
deficient performance. The decision appears to have
been strategic, for Lopez attempted to persuade the
jury that he was innocent of any crime. Lopez testified at
trial that, on the night Jilani died, he thought he and
Arthur were innocently searching for a place to eat; Ar-
thur’s scuffle with Jilani came as a complete surprise. A
No. 08-2110                                                9

felony-murder instruction would have been inconsistent
with Lopez’s story. Of course, the jury did not buy
Lopez’s uncorroborated account; perhaps looking back
it would have been wiser for counsel to press for a con-
viction on a compromise verdict of felony murder in-
stead. But we will not pick apart counsel’s strategic
choice “with the benefit of hindsight.” McAfee v. Thurmer,

, 356 (7th Cir. 2009). Under the circum-
stances, counsel’s decision to forego the lesser-included
instruction, even if Lopez was entitled to it, appears
reasonable—and well “within the wide range of profes-
sionally competent assistance.” See Strickland v. Washington,

, 690 (1984).
  This brings us to Lopez’s second claim on appeal—that
the state appellate court’s factual determination that
counsel had discussed a felony-murder instruction
with him is unreasonable. But this separate ineffective-
assistance theory is also doomed by the state appellate
court’s holding that Lopez was not entitled to the felony-
murder instruction under state law. We do not see how
counsel’s failure to discuss with Lopez the possibility
of requesting a jury instruction that Lopez was not
entitled to receive could amount to constitutionally
deficient performance, much less how the failure preju-
diced Lopez.
                                                  A FFIRMED.




                            2-5-10