In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2091

John Whitehead,

Petitioner-Appellant,

v.

Roger D. Cowan, Warden,
Menard Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 5013--Ann Claire Williams, Judge.

Argued June 19, 2001--Decided August 29, 2001


  Before Bauer, Manion, and Kanne, Circuit
Judges.

  Manion, Circuit Judge. Petitioner John
Whitehead was convicted by a jury in
Illinois state court of murder and
aggravated kidnaping. Whitehead was then
sentenced to death by the trial judge.
The Illinois Supreme Court affirmed his
conviction on direct appeal, and the
United States Supreme Court denied a
petition for writ of certiorari.
Whitehead then filed several petitions
for post-conviction relief in state
court. The trial court denied these peti
tions, and the Illinois Supreme Court
affirmed. Again the United States Supreme
Court denied a petition for writ of
certiorari. Whitehead then filed a
petition seeking a writ of habeas corpus
under 28 U.S.C. sec. 2254 alleging eleven
constitutional errors during his state
court trial and appeal. The district
court denied the petition, and Whitehead
appeals. We affirm.

I.

  The first Illinois Supreme Court opinion
provides a thorough summary of the facts
in this case, which we excerpt below:

Vickie Wrobel, a five-year-old girl who
lived with her parents in Joliet, was
missing from the family residence during
the evening of August 9, 1982. While
searching for her, Vickie Wrobel’s mother
asked the Wrobels’tenant, Esther Harmon,
whether she had seen Vickie. Esther
Harmon, her daughter, LeAllen Starbuck,
and LeAllen’s husband, William Starbuck,
lived with the defendant in a house
adjacent to the Wrobels’ tavern and home.
On speaking with Vickie Wrobel’s mother,
Esther Harmon discovered that both the
defendant and the Harmon car, which the
defendant sometimes used with her
permission, were also missing. Local
police agencies were notified that the
defendant was suspected of stealing
Esther Harmon’s car and that he might
have taken Vickie Wrobel.

Sometime after midnight the following
morning, the defendant telephoned the
Wrobels’ tavern and spoke with LeAllen
Starbuck. He told LeAllen that he was
calling from Samuel and Jeanine
Starbuck’s in Godley; Jeanine is the
defendant’s sister and is married to
William Starbuck’s brother. LeAllen
advised the defendant to stay at his
sister’s home, and she then told the
police where the defendant was located.

Shortly after LeAllen’s call, area police
arrived at the Starbuck residence in
Godley. The officers saw Esther Harmon’s
automobile parked in front of the
residence, and from outside the car
officers observed clothing on the front
seat of the car that matched the
description of clothing worn by Vickie
Wrobel when she disappeared the previous
evening. Samuel Starbuck let the officers
into his living room, where the defendant
was seated. The defendant admitted to
being in possession of Esther Harmon’s
car, and he was arrested for auto theft.

The defendant was questioned by two
detectives of the Joliet police
department from about 4 a.m. until 6:30
a.m. that day. He was generally
responsive, but when questioned
concerning the whereabouts or condition
of Vickie Wrobel, the defendant made no
statements other than "I can’t" or "I
can’t tell you." The interrogation ended
when the defendant indicated a desire to
consult with an attorney.

An hour or so later, at approximately
7:30 a.m. on August 10, 1982, railroad
workers discovered a naked body, later
identified as the body of Vickie Wrobel,
floating in the Mazon River. An autopsy
revealed that the victim had been
sexually molested and had been killed by
strangulation and drowning. Physical
evidence recovered alongside the river
included articles of the victim’s
clothing and a shirt later identified as
the shirt worn by the defendant on the
evening of August 9. In the shirt pocket
there was a lottery ticket with writing
that a handwriting analyst identified as
the defendant’s.

Additional physical evidence implicating
the defendant was found in Esther
Harmon’s automobile. Some of the victim’s
clothing was on the front seat. Also
found was a plastic drinking cup similar
to that given Vickie Wrobel by the
Wrobels’ bartender shortly before the
girl disappeared. The armrest and
passenger door panel were stained with a
fluid that was determined to have a
chemical composition consistent with the
nonalcoholic "cocktail" served to Vickie
Wrobel in the plastic cup. The floormats
in Esther Harmon’s car were damp, and
vegetation like that growing along the
Mazon River was also found on the floor
area in front of thedriver’s seat. Other
evidence produced at trial placed the
defendant in the general vicinity where
Vickie Wrobel was playing immediately
prior to her apparent kidnaping.

While in the custody of the Joliet police
department on the 10th and 11th of
August, the defendant made eight
statements to investigating officers in
which he admitted kidnaping, sexually
assaulting, and killing Vickie Wrobel.
His description of how he sexually abused
the victim was consistent with the
autopsy report, and the defendant’s claim
of having forced Vickie Wrobel to drink
beer was also substantiated by the post-
mortem examination.

People v. Whitehead, 

, 689-
90 (Ill. 1987) ("Whitehead I").

  In July 1983, Whitehead was convicted in
the Circuit Court of Grundy County of
murder and aggravated kidnaping.
Whitehead waived his right to have a jury
determine his sentence, and the trial
judge sentenced Whitehead to death. On
February 20, 1987, the Illinois Supreme
Court affirmed on direct appeal. The
United States Supreme Court denied a
petition for writ of certiorari.
Whitehead’s subsequent petitions for
state post-conviction relief were also
denied, and on February 15, 1996, the
Illinois Supreme Court again affirmed.
Once again, the United States Supreme
Court denied a petition for writ of
certiorari.

  On May 20, 1997, Whitehead filed a
petition for writ of habeas corpus in
federal district court. This petition was
amended on August 10, 1998, and alleged
eleven grounds for relief. On March 30,
2000, the district court denied habeas
relief, and on April 13, 2000, Whitehead
filed a motion for certificate of
appealability. The district court denied
the motion. On April 26, 2000, Whitehead
appealed the denial of habeas relief, and
this case was docketed. On May 15, 2000,
Whitehead sought a certificate of
appealability from this court, which was
granted on five issues. Whitehead claimed
his inculpatory statements were admitted
in violation of the Fifth and Fourteenth
Amendments; that he was not tried before
a fair and impartial jury in violation of
the Fifth and Fourteenth Amendments; that
there was prosecutorial misconduct in
violation of the Fifth and Fourteenth
Amendments; that he received ineffective
assistance of counsel in violation of the
Sixth and Fourteenth Amendments; and that
there was an invalid waiver of a
sentencing jury in a capital case, in
violation of the Fourteenth Amendment.

II.

  As the habeas petition in this case was
filed after the effective date of the
Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), 28 U.S.C. sec.
2254, the standard of review contained
therein governs Whitehead’s claims. See
Lindh v. Murphy, 

, 322-23
(1997). The relevant portion of the AEDPA
provides:

An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits
in State court proceedings unless the
adjudication of the claim-- . . .
resulted in a decision that was contrary
to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States; . . . .

28 U.S.C. sec. 2254(d)(1).

  As the Supreme Court has explained, a
state court decision is "contrary to"
clearly established Supreme Court
precedent "if the state court applies a
rule that contradicts the governing law
set forth in [Supreme Court] cases," or
"if the state court confronts a set of
facts that are materially
indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives
at a result different from [Supreme
Court] precedent." Williams v. Taylor,

, 405 (2000). A state court
decision is an "unreasonable application"
of clearly established Supreme Court
precedent when "the state court
identifies the correct governing legal
rule from [the Supreme Court’s] cases but
unreasonably applies it to the facts of
the particular state prisoner’s case," or
"the state court either unreasonably
extends a legal principle from [Supreme
Court] precedent to a new context where
it should not apply or unreasonably
refuses to extend that principle to a new
context where it should apply." 

  On appeal from a ruling on a petition
for habeas relief, we review the district
court’s findings of fact for clear error
and its rulings on issues of law de novo.
See Denny v. Gudmanson, 

, 900
(7th Cir. 2001). If the case falls under
the "contrary to" clause of sec.
2254(d)(1), then we review the state
court decision de novo to decide what is
clearly established law as determined by
the Supreme Court and whether the state
court decision was "contrary to" that
Supreme Court precedent. See 

the other hand, the case falls under the
"unreasonable application" clause, then
we defer to a reasonable state court
decision. See 

court
factual findings that are reasonably
based on the record are presumed correct.
See 28 U.S.C. sec. 2254(e)(1); 

.

A.   Whitehead’s Inculpatory Statements

  Whitehead challenges the admission at
trial of his inculpatory statements,
claiming they were the product of a
police interrogation in violation of the
Fifth and Fourteenth Amendments to the
Constitution. The district court
succinctly set forth the background for
this claim, as follows:

After taking Whitehead into police
custody, the Joliet police began
interrogating him about the disappearance
of Vickie Wrobel. Whenever the police
asked Whitehead about Vickie, he simply
responded, "I can’t" or "I can’t tell
you." Eventually, Whitehead told the
police that he wanted an attorney and the
interrogation ended.

Prior to Whitehead’s interrogation, both
LeAllen Starbuck and Jeanine Starbuck
indicated to police that if Whitehead
knew anything about Vickie’s
disappearance, they were the only two
people in whom he would confide that
information. Nevertheless, police refused
to let either LeAllen Starbuck or Jeanine
Starbuck speak to Whitehead and
unsuccessfully tried to get Whitehead to
confess that he knew something about
Vickie’s whereabouts. After two and a
half hours of trying, and after Whitehead
had invoked his right to have an attorney
with him during any further questioning,
the police ended their interrogation.

Before and after the interrogation
LeAllen Starbuck requested to speak with
Whitehead, but the police initially
refused to let her see him. Eventually,
the police allowed LeAllen to meet with
Whitehead and during their meeting,
LeAllen persuaded Whitehead to tell her
everything he knew about Vickie’s
disappearance. Whitehead then admitted to
LeAllen that he had killed Vickie.
LeAllen convinced Whitehead that he
should confess to the police because he
was mentally ill, needed treatment, and
that the only way he could get help was
to confess his crime to the police.
Whitehead agreed to confess and sent
LeAllen out of the room to notify the
police that he would talk to them. When
police returned to the room, Whitehead
made eight statements in which he
admitted to killing and raping Vickie.

United States v. Page, 

, *4
(N.D.Ill. 2000).

  Under Miranda v. Arizona, 

,
474 (1966), once a suspect requests an
attorney, a police interrogation must
cease until an attorney is present,
unless the conversation is reinitiated by
the suspect. Whitehead claims his right
against self-incrimination under the
Fifth and Fourteenth Amendments was
violated because interrogation proceeded
after he had requested an attorney.
Whitehead also claims that the
prosecution bears a heavy burden to prove
that a defendant initiated further
communication with the police if the
interrogation continued after an attorney
was requested, citing Edwards v. Arizona,

, 484-85 (1981), and claims
that the prosecution never met this
alleged burden.
  As is evident from the undisputed facts
of this case, however, the police
themselves did not interrogate Whitehead
after he requested an attorney. Indeed,
Whitehead does not claim that he did not
reinitiate the interrogation after
speaking with LeAllen Starbuck. Instead,
Whitehead theorizes that the conversation
he had with LeAllen Starbuck was itself
the "functional equivalent" of a police
interrogation, citing Rhode Island v.
Innis, 

(1980). In Innis, the
Supreme Court explained that the Miranda
protections extend to the functional
equivalent of express questioning,
defined as "any words or actions on the
part of the police (other than those
normally attendant to arrest and custody)
that the police should know are
reasonably likely to elicit an
incriminating response from the suspect."
See 

And, in inquiring whether
police actions are the functional
equivalent of express questioning, the
Court explained that the proper focus is
"primarily upon the perceptions of the
suspect, rather than the intent of the
police." 

and by extension Miranda,
provide no relief for Whitehead. The
Supreme Court has already addressed a
situation akin to Whitehead’s in Arizona
v. Mauro, 

(1987), and
concluded that no interrogation occurred.
In that case, Mauro had confessed to
killing his son. After his arrest, he
requested an attorney and all questioning
of Mauro ceased. A police officer was
questioning the suspect’s wife, Mrs.
Mauro, in another room. She asked to
speak with her husband, and although the
police were reluctant, they allowed her
to see him in the presence of the police,
who placed a tape recorder in plain view.
Mauro instructed his wife not to answer
any police questions until an attorney
was present, and stated, "Don’t answer
any questions until you get rights of
attorney before you find out whats [sic]
going on. You tried to stop me as best
you can. What are you going to do, kill
me? You tried the best you can to stop
me." The tape of this conversation was
used in the rebuttal to Mauro’s insanity
defense at trial. Using the "functional
equivalent" theory Whitehead now raises,
Mauro sought to suppress the evidence on
the theory that it was the product of
police interrogation in violation of his
Miranda rights. The Supreme Court
nevertheless determined that Mauro’s
right against self-incrimination was not
violated.

  There is no relevant difference between
the Mauro case and the present one. As
the Mauro Court emphasized, "The tape
recording of the conversation between
Mauro and his wife shows that Detective
Manson asked Mauro no questions about the
crime or his conduct. Nor is it
suggested--or supported by any evidence--
that Sergeant Allen’s decision to allow
Mauro’s wife to see him was the kind of
psychological ploy that properly could be
treated as the functional equivalent of
interrogation." 

Likewise, in
the present case, the police asked no
questions of Whitehead--in fact unlike
Mauro they were not even in the room when
LeAllen Starbuck spoke with Whitehead.
There is no evidence to support a claim
that the police engaged in a
psychological ploy designed to elicit a
confession. Indeed, there is no evidence
presented that the police gave LeAllen
Starbuck any instructions to say certain
things to Whitehead.

  Whitehead points to evidence the police
expected that if his sister, Jeanine
Starbuck, spoke to Whitehead she would
relay any information to them, and points
to evidence that the police did not
expect their own questioning of Whitehead
to be successful. According to Whitehead,
the "inescapable common sense and
reasonable conclusion" is that the police
had "more than just a hope" that LeAllen
Starbuck would procure incriminating
evidence against Whitehead. This is not
an inescapable conclusion, however--it is
speculation. In Mauro, "both detectives
had acknowledged in pretrial hearings
that they knew it was ’possible’ that
Mauro might make incriminating statements
if he saw his wife." See 

It
is beyond imagining that the police in
Mauro did not hope this possibility would
come to fruition, but that does not mean
that a ploy existed: "Officers do not
interrogate a suspect simply by hoping
that he will incriminate himself." 

A police awareness that suspects
sometimes confess after they speak with
close friends or family does not mean
this court should adopt a rule that
encourages police to bar friends or
family members from seeing a suspect. Cf.

("Police departments need not
adopt inflexible rules barring suspects
from speaking with their spouses . . .
.").

  Whatever hopes the police may have had
in this case, it is clear from the record
that they had no plan to have LeAllen
Starbuck speak with Whitehead as their
agent. To the contrary, they initially
refused her request. LeAllen Starbuck was
not instructed by the police to ask
certain questions or achieve a certain
result. Most importantly, there was
nothing about her presence which would
make Whitehead feel that he had to
confess to her, and it is the suspect’s
perspective which matters. See 

. As the Supreme Court summed
up its decision in Mauro, the petitioner
"was not subjected to compelling
influences, psychological ploys, or
direct questioning. Thus, his volunteered
statements cannot properly be considered
the result of police interrogation." See

. The same
reasoning applies here. See also United
States v. Gaddy, 

, 1311
(11th Cir. 1990) (suspect in custody was
not interrogated when aunt, who was
employed by the police department, urged
him to tell police what he knew about a
crime); Snethen v. Nix, 

, 457
(8th Cir. 1989) (suspect in custody was
not interrogated when he confessed after
a conversation with his mother, who had
told police before the conversation that
"if [my son] did this, he will tell
me.").

B.   Fair and Impartial Jury
  Whitehead raises several arguments that
he was deprived of a fair trial before an
impartial jury in violation of the Fifth
and Fourteenth Amendments. Each of these
arguments was considered, and rejected,
by the Illinois Supreme Court.
Whitehead’s first claim is that the state
trial court should have granted his
motion to have his case transferred to
another venue because of pretrial
publicity and local animosity. Whitehead
argues that he was deprived of a fair
trial before an impartial jury because of
the effects of this publicity and
animosity on his trial.


  1.   Newspaper publicity.

  In support, Whitehead states that the
local newspaper, the Morris Daily Herald,
published articles containing information
not admitted at trial, including
Whitehead’s alleged request for the death
penalty, his prior criminal record, and
his suspected involvement in an unrelated
child abduction case. He further notes
that trial counsel "was told by everyone
he spoke with in the community that they
felt the Petitioner should be killed."
Whitehead also points to the voir dire
testimony of five individuals who
ultimately sat on the jury./1 One juror
stated that she regularly read the Morris
Daily Herald and had read articles about
the case that "had something to do with
how many jurors they were going to
choose" and described "going through a
lot of motions in court about it, some
different legalities; I don’t even
remember what they were." Another juror
who read the Morris Daily Herald
remembered reading articles about
"appeals and motions" and "that the man
had been charged and that there had been
a motion for moving the trial and other
things that was [sic] in there." An
additional juror recalled reading that
"one police officer erased a tape. I do
remember that. What the tape was, I
couldn’t tell you. I don’t recall what
the tape was except through some error,
he erased the tape. That’s all I remember
about it at this time, yes." Yet another
juror remembered reading "something in
the paper saying that this trial was
coming up." Finally, a juror testified
that he had not read "a great deal about
the case and did not recall reading any
statements about [Whitehead] or police
officers." This juror did admit, however,
that "all I know is what I have read in
the paper, which I assume they know what
they are talking about more or less, and
that’s all, what’s been said in the
paper." Upon questioning from the trial
judge, however, each of these jurors
testified during voir dire that they
could approach the case with an open
mind, despite the articles they had read.
See Whitehead 

.

  "The constitutional standard of fairness
requires that a defendant have a panel of
impartial, ’indifferent jurors.’" Murphy
v. Florida, 

, 799 (1975)
(quoting Irvin v. Dowd, 

, 722
(1961)). "To hold that the mere existence
of any preconceived notion as to the
guilt or innocence of an accused, without
more, is sufficient to rebut the
presumption of a prospective juror’s
impartiality would be to establish an
impossible standard. It is sufficient if
the juror can lay aside his impression or
opinion and render a verdict based on the
evidence presented in court." 

. "At the same time, the
juror’s assurances that he is equal to
this task cannot be dispositive of the
accused’s rights, and it remains open to
the defendant to demonstrate ’the actual
existence of such an opinion in the mind
of the juror as will demonstrate the
presumption of partiality.’" 

(quoting 

).

  Whitehead relies heavily on the extreme
cases where an intrusive media presence
has utterly corrupted the proceedings.
See, e.g., Estes v. Texas, 

(1965), Rideau v. Louisiana, 

(1963). In Estes and Rideau, prejudice
was presumed and a new trial was
mandated. But Whitehead has not presented
evidence sufficient to create the
presumption of prejudice that is required
by such cases. In Estes, the trial was
conducted in a circus atmosphere, with
the press sitting within the bar of the
court. In Rideau, a twenty-minute
confession by the defendant was broadcast
three times by a local television
station. As the Supreme Court noted in
Murphy, the proceedings in those cases
"were entirely lacking in the solemnity
and sobriety to which a defendant is
entitled in a system that subscribes to
the notion of fairness and rejects the
verdict of a mob. They cannot be made to
stand for the proposition that juror
exposure to information about a state
defendant’s prior convictions or to news
accounts of the crime with which he is
charged alone presumptively deprives the
defendant of due 

.

  This case resembles the situations in
Murphy and Patton v. Yount, 

(1984), in which the Supreme Court held
that the right to an impartial jury was
not denied. In Murphy, there was no
circus-like atmosphere to the trial; the
court held that the media presence was
insufficient to create a presumption of
prejudice, and that the voir dire
"indicate[d] no such hostility to
petitioner by the jurors who served in
his trial as to suggest a partiality that
could not be laid aside." 

. And in Yount, publicity had
revealed the petitioner’s prior
conviction for murder, his confession,
and his prior plea of temporary insanity,
none of which were admitted as evidence
at trial. In that case, the defendant was
tried twice. There was evidence that the
jurors had formed an opinion of guilt
years before the second trial, but that
they did not hold a fixed opinion when
they were seated as jurors for that
trial. In addition, some jurors provided
testimony regarding their opinion of the
case that was ambiguous or contradictory.
The Court nevertheless deferred to the
trial court’s holding that the jurors
were impartial. See 

. Similarly, the voir dire testimony
in this case indicates that the jurors
had no fixed opinions about the guilt or
innocence of Whitehead. If anything, the
evidence in the present case is much
milder than the evidence in Yount. In
light of the Supreme Court’s decisions in
Murphy and Yount, we conclude that the
Illinois Supreme Court’s ruling on this
issue was not contrary to or an
unreasonable application of established
Supreme Court precedent.


  2. Publication of juror names and
addresses.

  Next, Whitehead argues that his right to
a fair and impartial jury was violated
because a local newspaper published the
names and addresses of the jurors.
Indeed, the Supreme Court has found that
publication of juror names and addresses
can contribute to the deprivation of a
fair trial. See Sheppard v. Maxwell, 

(1966). Sheppard, like Estes and
Rideau, was a case of presumed prejudice,
however. The result in that case "arose
from a trial infected not only by a
background of extremely inflammatory pub
licity but also by a courthouse given
over to accommodate the public appetite
for carnival." 

.
Moreover, in Sheppard the publication of
juror names and addresses meant that "the
jurors were thrust into the role of
celebrities." The publication of their
names and addresses resulted in
"expressions of opinion from both cranks
and friends," including anonymous
letters. See 

.
There is no evidence of similar juror
contacts in this case, and the Sheppard
Court based its decision on the totality
of the circumstances. We conclude that
Sheppard does not require a finding of
presumed prejudice based on the
publication of juror names and addresses
in the circumstances of this case.

  In addition, the mere fact that the jury
was exposed to something which could
theoretically affect its vote is not
sufficient to require a new trial. As the
Supreme Court has noted:

[D]ue process does not require a new
trial every time a juror has been placed
in a potentially compromising situation.
Were that the rule, few trials would be
constitutionally acceptable. The
safeguards of juror impartiality, such as
voir dire and protective instructions
from the trial judge, are not infallible;
it is virtually impossible to shield
jurors from every contact or influence
that might theoretically affect their
vote. Due process means a jury capable
and willing to decide the case solely on
the evidence before it, and a trial judge
ever watchful to prevent prejudicial
occurrences and to determine the effect
of such occurrences when they happen.

Smith v. Phillips, 

, 217
(1982).

  Here, Whitehead simply presents
speculation that the jury was not
impartial because jurors complained about
the publication of their names and
addresses. Evidence that the jury was
displeased that their anonymity was lost
in a murder trial, however, is a long way
from evidence that jurors were less than
impartial. We agree with the Illinois
Supreme Court that "[w]e cannot infer . .
. on this basis that an honest juror
would therefore give sway to his emotions
and disregard the fundamental requirement
of a fair trial and decide to convict a
person in order to be absolutely secure."
People v. Whitehead, 

,
1326 (Ill. 1996) ("Whitehead II"). Cf.
Kinnamon v. Scott, 

, 733 (5th
Cir. 1994) ("That members of a jury in a
capital murder case do not want the
defendant examining information
concerning their home addresses, phone
numbers, etc. raises no concern of
constitutional magnitude."). There is no
reasonable possibility that the
publication of names and addresses
affected the jury’s verdict, and this is
fatal to Whitehead’s claim. See United
States v. Davis, 

, 1412 (7th
Cir. 1994). In sum, the Illinois Supreme
Court’s ruling on this issue was not
contrary to, or an unreasonable
application of, clearly established
federal law.
  In this case, it would be sheer
speculation to suggest the publication of
addresses would prejudice the jury, and
accordingly we do not think a hearing was
necessary on these facts. "’[T]he duty to
investigate arises only when the party
alleging misconduct makes an adequate
showing of extrinsic influence to
overcome the presumption of jury
impartiality. In other words, there must
be something more than mere speculation.’"

States v. Barshov,

, 851 (11th Cir. 1984)).

  Whitehead nevertheless claims that the
publication of jurors’ names and
addresses requires a hearing to determine
its effect under Remmer v. United States,

, 229 (1954). In Remmer, a
third party contacted a juror and
suggested that "he could profit by
bringing in a verdict favorable to the
petitioner." 

The defendant
moved for a new trial and sought a
hearing on the issue, which was denied by
the trial court. The Supreme Court,
however, ruled that a hearing was
necessary in these circumstances. As the
Remmer Court explained:
In a criminal case, any private
communication, contact, or tampering
directly or indirectly, with a juror
during a trial about the matter pending
before the jury is, for obvious reasons,
deemed presumptively prejudicial, if not
made in pursuance of known rules of the
court and the instruction and directions
of the court made during the trial, with
full knowledge of the parties. The
presumption is not conclusive, but the
burden rests heavily upon the Government
to establish, after notice to and a
hearing of the defendant, that such
contact with the juror was harmless to
the defendant.

  Although it is true that Remmer calls
for a hearing in many cases where there
is a communication with a juror during a
trial, we do not agree that Remmer
applies to the publication of juror
addresses. See United States v.-Williams-
Davis, 

, 501 (D.C. Cir. 1996)
("In affirming the trial court, we
endorse its view that defendants bringing
post-trial claims of mid-trial media
exposure must make a threshold showing of
a likelihood of prejudice. . . . [W]e
think Remmer never applied at all outside
the area of private contacts with
jurors."). See also United States v.
Boylan, 

, 258-60 (1st Cir.
1990). The media publication of the
jurors’ names and addresses does not
address a matter at issue in the trial or
provide any new information about the
case to the jurors, nor did the context
of the publication, as in Sheppard,
demonstrate a likelihood that it would
affect the jury’s deliberations. This is
not a third-party contact of the sort
described in Remmer. We conclude that the
Illinois Supreme Court’s determination
that a hearing was unnecessary was
appropriate on these facts./2


  3. Emotional outburst in jury’s presence
and judge’s absence.

  Finally, Whitehead claims that the jury
was prejudiced because at one point in
the trial, the judge, counsel, and court
reporter retired to chambers while the
jury, Whitehead, and the victim’s mother,
who was on the witness stand, remained in
court. Whitehead presents affidavits from
a juror and the court clerk, stating that
during the judge’s absence the victim’s
mother rose and began shouting at the
defendant and crying. Allegedly, she then
asked the petitioner why he had killed
her daughter. Once back on the bench, the
trial judge admonished the jury to
disregard any comments which might have
been made by the witness.

  Obviously, the trial judge should never
have permitted this circumstance to arise
by leaving the courtroom with jurors in
the jury box, the victim’s mother on the
witness stand, and the petitioner seated
at his table. It is not surprising that a
mother would have this reaction in the
presence of the suspected murderer of her
child, and had the judge been there he
could have prevented or at least
controlled the situation. The question is
what effect this error would have on the
jury. Any jury would expect that a close
relative of the victim would have strong
emotions towards the suspected killer.
The outburst directed at the accused in
the presence of the jury did not provide
any information not admitted at trial
that could indicate guilt or innocence.
Unfortunate as the event was, it was not
an error that automatically requires a
new trial.

  In a similar capital case, Kinnamon, the
Fifth Circuit addressed a situation where
the jury, the prosecutor, the petitioner,
and the victim’s daughter were left alone
in a room together. According to a juror
affidavit, the victim’s daughter was
crying loudly in front of the jury,
although the juror could not remember
what the daughter was saying. The
petitioner’s sister provided an affidavit
that the daughter began screaming that
the petitioner had killed her father. The
state judge presiding over a habeas
challenge was unpersuaded that this
outburst had occurred. The Kinnamon court
concluded, "we are unpersuaded that there
was any prejudicial error of
constitutional magnitude. That the young
girl was upset and angry at the person
accused by the state as the murderer of
her father communicated nothing new to
the jury, even if the incident 

. We agree with this
analysis. Moreover, the trial court here
specifically instructed the jurors to
ignore any comments they might have
heard. This further suggests that the
comments would not have had any impact on
the jury. See Messer v. Kemp, 

(11th Cir. 1985) (noting import of
trial court’s curative instruction in
case of emotional outburst before jury).
Finally, the evidence of defendant’s
guilt was overwhelming, and this
"militates against a finding that the
introduction of the disputed [material]
effected the jury’s verdict." United
States v. Paneras, 

, 411 (7th
Cir. 2000).
  Whitehead nevertheless claims a hearing
was necessary to determine whether or not
the mother’s outburst had any impact on
the jury’s impartiality. Again, Whitehead
cites Remmer for this proposition. As
noted, in Remmer a juror was anonymously
contacted and told he could profit if he
found for the defendant. Although the
juror told the judge (who then had the
FBI investigate), the defendant did not
find out about the contact until after
the jury found him guilty. The government
responds that Remmer does not apply to
these facts because they do not involve
jury tampering. True, Remmer involved a
private contact that appeared to be jury
tampering, something the court labeled
"presumptively prejudicial," requiring a
hearing to determine whether the contact
was harmless. Whether the absence of jury
tampering would foreclose the
applicability of the Remmer presumption
is open to debate. Cf. United States v.
Dutkel, 

, 895 (9th Cir. 1999)
(limiting Remmer’s presumption of
prejudice to cases where jury tampering
established). Even if the Remmer
presumption applies to jury contacts
which do not involve jury tampering, how
ever, we nevertheless conclude that the
Remmer presumption does not apply on
these facts.

  The mother’s outburst was directed at
Whitehead, not the jury. Although the
judge was inexplicably absent, the jury
heard the outburst collectively and was
then admonished immediately when the
judge returned "to disregard any comments
that may have been made by the witness
when the attorneys were absent and when
the Court was absent." No one present,
including Whitehead, claims the mother
said anything to the jury, and her
recorded testimony after the outburst
reiterated her grief of losing her
daughter. The mother did not attempt to
persuade the jury, nor did she provide
them with any extraneous information
about the facts of the case. This is a
situation quite unlike the private
communication with the jury encountered
in Remmer. The mother’s outburst was not
"a purposeful intrusion into the sanctity
of the juror’s domain." See Schaff v.
Snyder, 

, 534 (distinguishing
a child’s whisper to its parent that was
overheard by a juror from a purposeful
intrusion). While understandably
emotional, the statement was not
prejudicial.

  This case involves an innocuous comment,
and as we have held previously, no Remmer
hearing is necessary in these
circumstances. See United States v.
Thibodeaux, 

, 202-03 (7th
Cir. 1985) (district court did not err
where no inquiry was made into juror
reaction to a communication because,
unlike Remmer, the comment heard by a
juror was ambiguous and innocuous).
Furthermore, a number of cases from other
circuits confine Remmer to private
contacts with jurors that actually pose a
danger of prejudicing the jury. See,
e.g., White v. Smith, 

(6th
Cir. 1993) (not applying Remmer where
victim’s mother, a spectator, told jury
"I will pray for you" before jury retired
to deliberate); Wright v. Angelone, 

, 160 n.6 (4th Cir. 1998)
(limiting Remmer to cases where
petitioner "introduce[d] competent
evidence that there was an extrajudicial
communication or contact, and that it was
more than innocuous interventions.")
(internal quotations and citations
omitted); 

(limiting Remmer presumption of prejudice
to cases where "there is an egregious
tampering or third party communication
which directly injects itself into the
jury process."). See also United States
v. Brooks, 

, 1247 (10th Cir.
1998) (a juror was witnessed smoking a
cigarette outside during a lunch break
and talking to two security officers for
at least ten minutes; the court concluded
that Remmer did not apply because there
was no evidence in the record that the
discussion with the security officers was
"about the matter pending before the
jury."). These decisions recognize that
not all juror contacts present Remmer
situations, and are in accord with
subsequent Supreme Court holdings
respecting juror contacts. See, e.g.,
Phillips, 

(not applying Rem
mer presumption where juror applied for
job in the district attorney’s office);
Rushen v. Spain, 

(1983) (not
applying Remmer presumption in case of ex
parte juror contact with judge). This
case, like the abovementioned circuit
decisions, simply does not implicate the
Remmer presumption. The emotional
comment, directed at the accused in front
of the entire jury, would not affect a
reasonable juror’s deliberation as to
whether or not Whitehead committed the
crime.

  Whitehead emphasizes, however, that the
mother’s outburst occurred off the
record. While this is indeed cause for
concern, cf. Degrave v. United States,

, 872 (7th Cir. 1987), it is
not necessarily a decisive error. The
significance of an off-the-record contact
or communication with one or more jurors
will vary with the circumstances of each
case. Cf. 

("Each
case turns on its own facts, and on ’the
degree and pervasiveness of the
prejudicial influence possibly
resulting.’") (quoting United States v.
Solomon, 

, 1118 (7th Cir.
1970)). In this case, there is no mystery
about the relevant facts of the mother’s
outburst; Whitehead, who was himself a
witness to the mother’s outburst, does
not allege that anything other than the
abovementioned comments were made.
Moreover, the Illinois Supreme Court
assumed that the outburst occurred as
alleged by Whitehead. We will not
speculate in these circumstances that
more might have been said or done. Cf.

. See also
Brooks, 

.

  The fact that the outburst was off the
record bears consideration, however, in
terms of the jury’s mental state. The
question raised here is not what was
said, but rather how the jury reacted to
this event. The fact that the outburst
was off the record, in the absence of the
state trial judge, means that the trial
judge would not be in a position to
ascertain the effect of the mother’s
outburst as it was occurring. The content
and duration of the outburst, however, is
such that it is not reasonable to imagine
it would affect the jury’s deliberations.
And, despite the off-the-record nature of
the outburst, it is also very significant
that the jury was instructed to ignore
any comments made during the judge’s
absence. See Francis v. Franklin, 

, 324 n.9 (1985) (crucial
assumption of our constitutional system
is that jurors carefully follow the trial
court’s instructions).

  In this case, the Illinois Supreme Court
gave careful thought to Whitehead’s
arguments and treated his allegation of
the mother’s outburst as true. The court
concluded: "[t]he incident was apparently
brief, it was isolated, there was no
attempt to obtain the jury’s sympathy as
a result of it, the court admonished the
jury, and there was no indication in the
record that it would have been unable to
heed the admonition and disregard the
incident during its deliberations. Simply
put, mere speculation concerning
prejudice to the defendant is not
sufficient to warrant reversal."
Whitehead 

. We
agree.

  The trial court’s error, which led to
the mother’s outburst, was harmless
error./3 Even under Remmer, the
presumption is "rebutted if the court
finds that there was no ’reasonable
possibility’ that the verdict was
affected by the contact." See United
States v. Sanders, 

, 668 (7th
Cir. 1992) (quoting United States v.
Bruscino, 

, 940 (7th Cir.
1982) (en banc)). "Factors that the court
should look to in making this
determination include the extent and
nature of the unauthorized contact, the
power of curative instructions, and the
responses of the jury." 

  The extent and nature of the
unauthorized contact, and the trial
court’s curative instruction, leave no
reasonable possibility that the verdict
was affected by the contact. Although the
events occurred off the record, their
nature and the curative instruction
indicate that an evidentiary hearing into
the responses of the jury was not
required. Cf. Porter v. Gramley, 

, 1318 (7th Cir. 1997) (record was
insufficient to show actual juror bias in
case where court assumed the trial court
conducted an inadequate hearing on juror
bias). In short, the harmlessness of the
mother’s outburst precludes habeas
relief.
C.   Prosecutorial Misconduct

  Whitehead next alleges that several
comments by the prosecutor during closing
arguments deprived him of his due process
right to a fair trial under the Fifth and
Fourteenth Amendments.

  Before we reach the merits of these
misconduct claims, we first address a
procedural argument raised by the
government. The government argues that
the district court erred in holding that
Whitehead’s prosecutorial misconduct
claims were not procedurally defaulted
because they had been fairly presented to
the state court. According to the
government, these claims should have been
barred under the independent and adequate
state grounds doctrine.

  When Whitehead raised his prosecutorial
misconduct claims on direct appeal, the
Illinois Supreme Court determined they
were waived because Whitehead had not ob
jected to the remarks during trial or in
his post-trial brief, thus foreclosing
his claims under Illinois law. See
Whitehead 

, 694-95.
The Illinois Supreme Court’s ruling thus
constitutes an independent and adequate
state ground for its decision, and bars
federal review of the issue. See Franklin
v. Gilmore, 

, 886 (7th Cir.
1999); Coleman v. Thompson, 

,
729 (1991). In order to avoid this bar,
the habeas petitioner must demonstrate
cause for the default and actual
prejudice resulting from the alleged
violation of federal law, or else
demonstrate that failure to consider his
claims would result in a fundamental
miscarriage of justice. See 

  As the Supreme Court noted in Coleman,
"[w]hen the independent and adequate
state ground supporting a habeas
petitioner’s custody is a state
procedural default, an additional concern
comes into play. This Court has long held
that a state prisoner’s federal habeas
petition should be dismissed if the
prisoner has not exhausted available
state remedies as to any of his federal

. "[T]he
exhaustion doctrine is designed to give
the state courts a full and fair
opportunity to resolve federal
constitutional claims before those claims
are presented to the federal courts."
O’Sullivan v. Boerckel, 

, 845
(1999). Accordingly, the petitioner must
"fairly present" the federal issue to the
state courts as a precondition to exhaus
tion. See Verdin v. O’Leary, 

, 1472-73 (7th Cir. 1992).

  In Verdin, this court adopted the
following test for fair presentment:

If the petitioner’s argument to the state
court did not: (1) rely on pertinent
federal cases employing constitutional
analysis; (2) rely on state cases
applying constitutional analysis to a
similar factual situation; (3) assert the
claim in terms so particular as to call
to mind a specific constitutional right;
or (4) allege a pattern of facts that is
well within the mainstream of
constitutional litigation, then this
court will not consider the state courts
to have had a fair opportunity to
consider the claim. However, the presence
of any one of these factors, particularly
factors (1) or (2), does not
automatically avoid a waiver; the court
must consider the specific facts of each

(quoting Pierson v.
O’Leary, 

, 1393 (7th Cir.
1992)) (quotation marks omitted).

  The district court reached the same
conclusion we do, namely, that there was
an independent and adequate state ground
for the Illinois Supreme Court’s
decision. The district court,
nevertheless, concluded that Whitehead
avoided this bar because he met the
standards for "fair presentment" of his
claim in state court. Applying our
decision in Verdin, the district court
determined that Whitehead had fairly
presented his Fifth Amendment
prosecutorial misconduct argument by
presenting it as a legal predicate for
his Sixth Amendment ineffective
assistance of counsel claim in his post-
conviction proceeding, and by presenting
the state court with the facts of the
Fifth Amendment claim. Accordingly, the
district court determined that it was ap
propriate to reach the merits on habeas
review.

  The government argues that the district
court misapplied Verdin, and claims that
Whitehead did not present the operative
facts and controlling legal principles of
a constitutional claim to the state
courts. Cf. Bocian v. Godinez, 

, 469 (7th Cir. 1996). In essence, the
government contends that the
constitutional claim presented in
thefederal proceeding was not the same
claim as the claim presented in the state
proceeding. In support of its application
of the "fair presentment" doctrine to the
ineffective assistance claim, however,
the district court looked to similar
holdings in the Fourth and Eighth
Circuits, where an ineffective assistance
of counsel claim was held to fairly
present an underlying constitutional
claim. See Ramdass v. Angelone, 

, 409 (4th Cir. 1999), aff’d on
different grounds, 

(2000);
Odem v. Hopkins, 

, 775-76
(8th Cir. 1999). The government did not
discuss these cases in its brief.

  We need not decide whether Whitehead’s
claims of prosecutorial misconduct are
barred, since the prosecutorial comments
at issue do not result in a denial of due
process under the circumstances of this
case. First, Whitehead claims that the
prosecutor improperly commented on
Whitehead’s failure to testify. This
argument is based on several prosecution
statements. At one point, the prosecutor
stated that the jury should not "listen
to facts that have not been introduced in
evidence . . . . Unless that witness has
been sworn up there on the witness stand
you will not have had the opportunity to
observe the demeanor of the witness." In
context, these comments allegedly
implicated the petitioner, who had not
testified. Subsequently, the prosecutor
stated: "What do you have before you?
Unrebutted, undenied, uncontradicted that
the defendant both in a tape recorded
statement and a written statement
admitted [drowning] Vickie Wrobel . . . .
Not one piece of evidence put on by
either party contradicts that." Whitehead
contends that these comments violated the
Fifth Amendment because they were
inappropriate remarks on his decision not
to testify at trial.

  Whitehead also claims that the state
improperly questioned trial counsel’s
sincerity by commenting, "[f]inally, they
present to you a defense of intoxication,
but it is as little believed by them as
it should be by you." In addition,
Whitehead argues that the prosecutor
misstated the law by suggesting to the
jury that defendant’s defenses of
intoxication and a guilty third party
were sufficient only if the jury believed
both defenses. The prosecutor had
declared that the "defense tactic is to
place a number of defenses in front of
you, because they all have to work or
none of them work. . . . They are both
contradictory and yet they have to stand
together under the defense’s theory."

  In Darden v. Wainwright, 

(1986), the Supreme Court set forth the
test for when prosecutorial misconduct at
trial is so egregious that it requires a
new trial as a matter of constitutional
law. In applying this test, we follow a
two-step course:

We first look at the comments in
isolation to determine if they were
improper. If we find the comments are
proper, the analysis ends. If we find
they are improper, we must then examine
the comments in light of the record as a
whole to determine whether the comments
deprived the defendant of a fair trial.

United States v. Whitaker, 

,
606 (7th Cir. 1997). If the comments were
improper, there are then six factors
which courts must consider: 1) whether
the prosecutor misstated the evidence; 2)
whether the remarks implicate specific
rights of the accused; 3) whether the
defense invited the response; 4) the
trial court’s instructions; 5) the weight
of the evidence against the defendant;
and 6) the defendant’s opportunity to
rebut. See Howard v. Gramley, 

, 793 (7th Cir. 2000).

  In making this determination, "it is not
enough that the prosecutors’ remarks were
undesirable or even universally
condemned. . . . The relevant question is
whether the prosecutors’ comments so
infected the trial with unfairness as to
make the resulting conviction a denial of
due process." 

(citation and quotation omitted). As this
court has explained, "the most important
of the Darden factors is the weight of
the evidence against the defendant."

. "’Strong
evidence of guilt eliminates any
lingering doubt that the prosecutor’s
remarks unfairly prejudiced the jury’s deliber-
ations.’" Rodriguez v. Peters, 

, 558
(7th Cir. 1995) (quoting United States v.
Gonzalez, 

, 431-32 (7th Cir.
1991)).

  In this case, any misconduct which may
have occurred, in isolation or
cumulatively, would not meet the Darden
test for a due process violation. The
evidence against Whitehead leaves no
lingering doubts that the prosecutor’s
remarks prejudiced the jury. The Illinois
Supreme Court rightly pointed out that
Whitehead’s "numerous confessions, and
the physical evidence tying the defendant
to the scene of the murder and linking
the victim with the car in defendant’s
possession" provided overwhelming
evidence of guilt.

  Whitehead’s strongest claim is that the
prosecution improperly stated in rebuttal
that "the defense tactic is to place a
number of defenses in front of you,
because they all have to work or none of
them work. . . . They are both
contradictory and yet they have to stand
together under the defense’s theory."
Technically, this prosecutorial comment
may actually be a mischaracterization of
"the defense’s theory," rather than a
description of the law’s requirements.
But either way it could imply a false
legal standard to a juror. Whitehead
argues that a misstatement of law by a
prosecutor can invalidate a conviction,
citing United States v. Mackey, 

, 384 (7th Cir. 1978). This is true.
However, this case is readily
distinguishable from the precedents
relied on in Mackey for that rule, which
involved misstatements of law that were
reinforced by the trial court, or
misstatements of law that were repeated
several times to the jury. Moreover, the
weight of the evidence against Whitehead
renders this prosecutorial statement
insignificant. We accordingly agree with
the Illinois Supreme Court on this issue.
As that court noted:

[T]he defendant’s theories of defense
were far too weak to overcome the
overwhelming evidence of his guilt: there
was no evidence to support the
defendant’s theory that he was framed by
a jealous husband, with whose wife the
defendant was having an affair, and the
defendant’s ability to drive Esther
Harmon’s automobile and successfully
navigate paths and roads from the Mazon
River to the home of Samuel Starbuck
enfeebled the intoxication defense. . . .
It should be noted also that the trial
court accurately instructed the jury on
the law regarding the defendant’s
theories of innocence.

Whitehead 

.

  In short, it is unlikely that the
prosecutor’s alleged misstatement of the
law had any impact on the jury’s
deliberations in light of the evidence
against Whitehead. Similarly, the claimed
attack on defense counsel’s sincerity
could not have had any effect in this
case. Cf. 

(reaching same conclusion where
prosecutor accused defense counsel of
being a liar). Nor do we think the
comments on the uncontradicted nature of
the government’s evidence, or the absence
of a witness for the defense, deprived
Whitehead of a fair trial in light of the
weight of the evidence. Whitehead has
failed to meet the standard set forth by
the Supreme Court in Darden./4
Accordingly, even if we assume the claims
of prosecutorial misconduct are not
barred, they are insufficient to require
the grant of habeas relief.

D.   Ineffective Assistance of Counsel

  Whitehead also claims that he received
ineffective assistance of trial and
appellate counsel in the state court pro
ceedings, in violation of the Sixth and
Fourteenth Amendments. In support,
Whitehead presents several categories of
alleged failings of counsel, set forth
below.

  Whitehead’s first argument is that trial
counsel failed to effectively prepare a
defense or present evidence in support of
that defense. He contends that counsel
did not investigate or introduce
available documentary evidence to support
a defense that he was "wrongfully blamed
or framed" for the murder of Vickie
Wrobel. He also contends that the State
Crime Lab determined that pubic hair
found on the victim’s panties and a
blanket in Esther Harmon’s car were not
from Whitehead, and that trial counsel
never mentioned this evidence at
trial./5 Finally, Whitehead claims that
trial counsel failed to investigate
evidence which supposedly showed that the
shirt found in the Mazon River was not
circumstantial evidence of guilt.

  Next, Whitehead argues that trial
counsel was ineffective because he did
not call Dr. Ziporyn at trial, when Dr.
Ziporyn had prepared a report and offered
an opinion that at the time of the
offense Whitehead was incapable of
conforming his conduct to the
requirements of the law. The insanity
defense was abandoned when the trial
court informed counsel that Whitehead’s
statements to Dr. Ziporyn about prior
knife attacks on young girls could be
brought out by the prosecution on cross-
examination of Dr. Ziporyn. Whitehead
claims trial counsel should have been
able to prevent such statements from
being admitted under Illinois law. In
addition, he claims ineffective
assistance because trial counsel had
promised to present an insanity defense
in his opening statement.

  Whitehead also argues that trial counsel
had been surprised when the state
tendered these materials regarding his
statements to the psychiatrist, and that
counsel should have been fully apprised
of all the materials that the state
intended to use. Furthermore, Whitehead
claims that trial counsel had already
elicited evidence of other alleged crimes
involving rape and arson during cross-
examination of LeAllen Starbuck.
Therefore, he contends that the insanity
defense should not have been abandoned,
since "the damaging evidence was already
heard by the jury." Whitehead also
declares that trial counsel failed to
present a theory or evidence capable of
supporting a not-guilty verdict because
trial counsel believed that it was
conducting an insanity defense. Whitehead
contends that when the last-minute
decision to abandon an insanity defense
was made, it was too late to then call
witnesses to present evidence in support
of other defenses.

  The Supreme Court set forth the
requirements for an ineffective
assistance of counsel claim in Strickland
v. Washington, 

(1984). Under
Strickland, the petitioner must
demonstrate 1) that his counsel’s
performance was deficient, such that
under the circumstances it was
unreasonable under prevailing
professional norms, and 2) that he was
prejudiced by his counsel’s deficient
performance. As we noted in Holman v
Gilmore, "Strickland calls for inquiry
into degrees; it is a balancing rather
than a bright-line approach . . . . This
means that only a clear error in applying
Strickland’s standard would support a
writ of habeas corpus." 

, 881
(7th Cir. 1997). This is because
"Strickland builds in an element of
deference to counsel’s choices in
conducting the litigation [and] sec.
2254(d)(1) adds a layer of respect for a
state court’s application of the legal
standard." 

go through all of the details
of the Illinois Supreme Court’s lengthy
analysis of this issue, but we find
persuasive the Illinois Supreme Court’s
thorough and well-reasoned treatment of
Whitehead’s claims of ineffective
assistance of trial counsel. The court
rejected an argument that Whitehead’s
counsel conducted an inadequate
investigation, based on substantial
contrary evidence in the record.
Whitehead 

. The
court determined that the insanity
defense would necessarily have made
available evidence of prior acts by
Whitehead as evidence of his state of
mind. Accordingly, it concluded that
trial counsel erred by failing to
appreciate the damage potential of Dr.
Ziporyn’s testimony, and therefore
apparently "made an error of judgment in
raising the insanity defense." See 

Nevertheless, it also concluded
that trial counsel was not incompetent
based on this error, and had made a
reasonable strategic decision in
subsequently abandoning the insanity
defense. See 

Furthermore,
the court found that trial counsel had
relied primarily on a theory that
defendant was innocent, and that trial
counsel’s theory was supported with well-
argued motions and vigorous cross-
examination. See 

Most
significantly, though, the Illinois
Supreme Court concluded that the second
prong of the Strickland test was decisive
in this case. As the court noted:

What is offered by defendant pales beside
the overwhelming evidence of guilt based
on findings unaffected by error. Our
review of this record convinces us that
confidence in the outcome is not
undermined even assuming the claimed
errors. We conclude that trial counsel
was not ineffective in investigating,
presenting and arguing evidence in
support of reasonable doubt.

We agree with the Illinois Supreme Court
and, moreover, conclude that Whitehead
has not met his burden in this court of
showing clear error. Accordingly, his
claims of ineffective assistance of trial
counsel must fail.

  Whitehead also claims that his appellate
counsel was ineffective for failing to
recognize constitutional deficiencies and
for not bringing them to the attention of
the state reviewing court. Again, the
Illinois Supreme Court found otherwise,
and Whitehead’s brief makes no argument
why this ruling was clear error. In fact,
Whitehead does not state in his appellate
briefs before this court what the errors
were which his appellate counsel in state
court made. As we have stated previously,
"[a]ppellate lawyers are clearly not
incompetent when they refuse to follow a
’kitchen sink’ approach to the issues on
appeals." 

. They
certainly do not have to present losing
arguments. Apparently, Whitehead’s
argument to the district court was that
his appellate counsel failed to present
arguments that his trial counsel was
ineffective. The district court rightly
noted that the ineffective assistance of
trial counsel argument would have failed,
and accordingly, concluded that appellate
counsel was not ineffective. We affirm
this holding.

E.   One-Juror Rule

  Whitehead made the apparently reasoned
decision to avoid having his sentence
determined by the jury, which had
returned a finding of guilt in a mere
fifteen minutes. It appears, also, that
counsel for Whitehead believed the trial
judge was an outspoken opponent of
capital punishment. Nevertheless, the
sentencing judge imposed the death
penalty.

  Whitehead argues that his waiver of the
right to have a jury decide whether to
impose the death penalty was
constitutionally invalid. In Illinois,
when a jury deliberates on the
appropriateness of the death penalty at
sentencing, its decision must be
unanimous. However, if a single juror
votes against the death penalty, it
cannot be imposed. See 720 ILCS 5/9-1(g).
This rule is known as the "one-juror
rule." In contrast, if there is a single
dissenting juror in a felony trial, "the
defendant is not acquitted, but a
mistrial is declared and the prosecution
can start over with a new jury." See
People v. Hall, 

, 1355
(Ill. 1986) (Simon, J., dissenting)
("Hall I").

  Whitehead claims he was misled when he
opted for the judge instead of the jury
because the trial court did not explain
the way the "one-juror rule" functions.
In this case, the trial court stated,
"And those twelve people would decide
whether or not you should receive the
death penalty if they were to be your
jury. Do you understand that?" Whitehead
responded, "Yes, I do." The Illinois
Supreme Court, however, concluded that
the trial court’s instructions were not
misleading, and has previously ruled that
there is no requirement that a trial
judge provide a "specific admonition that
the decision to impose the death penalty
must be unanimous." See Whitehead 

. Accordingly, it denied
Whitehead’s claim that his waiver of a
sentencing jury was not knowingly and
intelligently made.

  We may not infer a waiver of the right
to a jury trial from a silent record, see
United States ex rel. Wandick v. Chrans,

, 1087 (7th Cir. 1989)
(citing Carnley v. Cochran, 

,
516 (1962)), but the burden is on the
defendant to show that a waiver was not
knowingly and intelligently made. See 

v. United States ex rel.
McCann, 

, 281 (1942)). In the
context of waiver of the right to a jury
trial, we have held that the trial judge
need not explain the ramifications of a
waiver in terms of the number of votes
required for conviction or acquittal. As
this court has noted, a constitutionally
valid waiver of the right to a jury trial
does not require the defendant, for
example, to have an "awareness of [the]
participation and substantial majority
attributes of a jury trial." 

. Instead, he need only have
a concrete knowledge of the right being
waived. See United States ex rel.
Williams v. DeRobertis, 

,
1180 n.3 (7th Cir. 1983). Cf. United
States v. Hill, 

(7th Cir.
2001) ("Waiver does not depend on astute
(or even rudimentary) understanding of
how rights can be employed to best
advantage. Defendants routinely plead
guilty, waiving oodles of constitutional
rights, in proceedings where the rights
are named but not explained. For example,
the judge will tell the defendant that
the plea waives the right to a jury
trial, but will not describe how juries
work, when they are apt to find a
prosecutor’s case insufficient, why the
process of formulating and giving jury
instructions creates issues for appeal,
and so on.").

  Whitehead seeks to distinguish Wandick
and DeRobertis, claiming that a defendant
will assume that the voting process is
the same for a trial jury and a
sentencing jury unless the defendant is
informed of the one-juror rule. This view
is not a novel one. See Hall 

(Simon, J., dissenting).
However, in Enoch v. Gramley, 

, 1506 (7th Cir. 1995), we addressed
a trial court’s instruction which stated
that the sentencing jury would have to be
unanimous in favor of the death penalty
in order to impose it (not mentioning
that the jury did not have to be
unanimous for him to avoid the death
penalty). The Enoch court held that it
was not reasonable to conclude based on
this instruction that unanimity was
required to avoid the death penalty.
Accordingly, the instruction did not
render the waiver invalid. There is no
reason to think the likelihood of
misunderstanding is greater here than it
was in Enoch.

  Whitehead presents us with no evidence
that counsel failed to advise him
regarding his choice to waive a
sentencing jury. Cf. Hall v. Washington,

, 746 (7th Cir. 1997) ("Hall
II") (the record indicated that Hall, the
defendant, had received no advice from
his counsel as to whether or not to
choose a sentencing jury; when the trial
judge sought to rectify the problem, the
defendant’s counsel only spoke to him for
forty seconds, "during which time they
told Hall simply that he had a right to
a jury at sentencing."). Nor is this a
case in which the defendant was
misinformed regarding the one-juror rule.
See 

of jury
sentencing may have suggested to
defendant that juror unanimity was
required both to impose or reject the
death penalty); St. Pierre v. Cowan, 

, 951 (7th Cir. 2000) (trial
judge’s ambiguous reference to unanimity
could reasonably imply that unanimity was
required both to impose or reject the
death penalty).

  In light of our interpretation of
Supreme Court precedent in Wandick and
DeRobertis, we conclude that the Illinois
Supreme Court’s holding was not contrary
to, or an unreasonable application of,
federal law pursuant to the requirements
set forth in Williams. The Illinois
Supreme Court’s decision can readily be
squared with clearly established Supreme
Court precedent, and under the AEDPA,
this is fatal to Whitehead’s claim.

  Although it is far from clear based on
Whitehead’s appellate briefs, it appears
that he also claims ineffective
assistance of counsel respecting his
waiver of a sentencing jury. Whitehead
points to no supporting affidavits or
evidence from the record, but seems to
claim that he received ineffective
assistance because he was not advised by
counsel of the one-juror rule. He cites
Hall II for the proposition that such a
failure constitutes ineffective
assistance. Not only does Hall II not
stand for Whitehead’s asserted
proposition, but this claim would
contradict our prior holding in this
area. See 

(noting that "counsel does not have to
inform a client of all of the legal and
procedural knowledge which forms the
basis of his professional advice," and
concluding "we think that to the extent
that the jury selection process and the
substantial majority verdict requirement
need to enter into a defendant’s [jury
waiver] calculus, it is sufficient that
he is being advised by counsel who can be
presumed to know about such matters in
the absence of some showing of
incompetence."). Hall II involved not
only a failure to explain the one-juror
rule, but a near complete failure to
advise the defendant in his sentencing
choice, and a potentially misleading
description of the unanimity requirement
by defense counsel. See Hall 

. Whitehead’s case is not
comparable to Hall II, and Whitehead
makes no effort to demonstrate that his
counsel was incompetent in advising him
regarding his waiver of a sentencing
jury, other than his apparent claim that
counsel was incompetent because he never
explained the one-juror rule. In
DeRobertis, we explained that, absent a
showing of incompetence, "we will not
postulate counsel’s ignorance of . . .
the fact that under Illinois law a
unanimous jury is required to convict . .
. 

. The same reasoning
applies here. Whitehead has given us no
reason to postulate counsel’s ignorance
of the one-juror rule in this case;
indeed he does not even suggest that his
counsel was ignorant of the rule. Absent
some suggestion that counsel was
incompetent in his advice regarding
waiver, Whitehead’s claim of ineffective
assistance must fail.

III.

  In light of Whitehead’s failure to show
that the Illinois Supreme Court’s
decisions were contrary to, or an
unreasonable application of, clearly
established Supreme Court precedent, his
petition for habeas relief must be
denied. Whitehead’s inculpatory
statements were properly admitted; he was
not deprived of a fair trial before an
impartial jury; his claims of
prosecutorial misconduct and ineffective
ness of counsel fail in light of the
overwhelming evidence of guilt; and, he
failed to demonstrate an invalid waiver
of a sentencing jury or ineffectiveness
of counsel based on the trial court or
counsel’s failure to explain the one-
juror rule. The district court is
AFFIRMED.

FOOTNOTES

/1 In his opening brief, Whitehead also claimed that
the failure to voir dire the jurors individually
supported his claim, but this argument was with-
drawn in Whitehead’s reply brief.

/2 Whitehead also analogizes his case to Kinnamon,
in which a juror expressed concerns that the
defendant appeared to be reading juror informa-
tion sheets. However, although the state trial
court in Kinnamon had ultimately granted a hear-
ing on the issue, the Fifth Circuit did not hold
in that case that a hearing was required. More-
over, Whitehead has presented no Supreme Court
precedent that clearly establishes that a hearing
is necessary on the facts of this case. Accord-
ingly, this claim must fail.

/3 This circuit has not yet decided what standard
for harmless error applies post-AEDPA: the test
set forth in Brecht v. Abrahamson, 

,
637 (1993), which would look to whether the error
had a substantial and injurious effect or influ-
ence in determining the jury’s verdict; or the
test set forth in Chapman v. California, 

(1967), which would look to whether the jury
would have convicted Whitehead absent the error.
See 

n.4. In this case,
we reach the same conclusion under either stan-
dard.

/4 In addition, the prosecutor’s comments do not add
up to the unusual case, suggested as a possibili-
ty by the Supreme Court, where "a deliberate and
especially egregious error of the trial type, or
one that is combined with a pattern of prosecuto-
rial misconduct, might so infect the integrity of
the proceeding as to warrant the grant of habeas
relief, even if it did not substantially influ-
ence the jury’s verdict." See Brecht v. Abraham-

n.9.

/5 This argument was never presented to the district
court in Whitehead’s original or first amended
petitions for habeas relief, and it is according-
ly waived. See Weber v. Murphy, 

, 695
(7th Cir. 1993), cert. denied, 

(1994).