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

No. 05-2029
MICHAEL CHARLTON,
                                             Petitioner-Appellee,
                                v.

CECIL DAVIS, Superintendent
of the Indiana State Prison,
                                           Respondent-Appellee.
                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, South Bend Division.
                No. 04 C 608—Allen Sharp, Judge.
                         ____________
 ARGUED NOVEMBER 30, 2005—DECIDED FEBRUARY 28, 2006
                   ____________


  Before ROVNER, WOOD, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Michael Charlton lived with
Deborah Carpenter for about two and a half years in Terre
Haute, Indiana. The relationship had its problems, and on
August 21, 1995, Carpenter, who owned the house, called
Charlton at work to inform him that she was throwing
him out. Charlton came by to collect his belongings from the
front porch, and the two met later that evening at a neutral
location to discuss their separation.
  At about 4 a.m. on August 23, 1995, according to Charlton
(we emphasize this account is “according to Charlton”;
Carpenter, as we will see, can’t recount her version of the
2                                                No. 05-2029

events), Carpenter called him and invited him over. The two
talked, then had sex on the couch. After they got dressed,
Carpenter came toward him as if to give him a hug but
instead reached behind and grabbed a loaded gun he had in
his waistband. Charlton claims that, as he struggled to get
the gun away from Carpenter, it accidentally discharged.
She died of a gunshot wound to her head.
  At Charlton’s trial, the State presented evidence that told
a different story. The back door to Carpenter’s house was
damaged and paint fragments and wood shavings were
found on the floor. Also, the telephone lines to the house
were cut and Charlton never called for emergency help. On
top of that, a coworker testified that Charlton told him the
day before that he planned to kill Carpenter. And, of course,
the jury heard Charlton’s “account,” which seems to have a
few holes in it. (For instance, why was he packing a loaded
gun when he went to see Carpenter at the ungodly hour of
4 a.m.?) Ultimately, the jury found Charlton guilty of
murder, and the judge sentenced him to a term of 60 years.
Indiana courts affirmed the conviction on direct review and
denied Charlton’s claims for collateral relief.
  Charlton then moved to federal court and filed a habeas
petition under 28 U.S.C. § 2254. Appearing pro se, he
claimed that he had received ineffective assistance of
counsel at trial because his attorney failed to propose a jury
instruction on the defense of “accident.” He also argued that
his due process rights were denied when the trial judge
declined to give a jury instruction on the lesser included
offense of reckless homicide. The district court granted
relief based on the ineffective assistance claim, and the
State now appeals. As usual in habeas cases, we review the
district court’s factual findings for clear error and its legal
conclusions de novo. Harding v. Walls, 

, 827
(7th Cir. 2002).
  In granting Charlton’s habeas petition, the district
court cited as “binding precedent” our decision in Sanders
No. 05-2029                                                    3

v. Cotton, 

(7th Cir. 2005). Without further
analysis, the district court said it found “[t]he procedural
setting of Sanders . . . so similar to this case” that it was
“hard pressed to find a principled distinction.” In fact, while
both cases involved jury instructions and claims of ineffec-
tive assistance, they implicated different legal concepts. We
reverse the district court because, as we will explain, it
failed to correctly apply the relevant legal principles.
  Whereas Charlton’s case centers on Indiana’s former jury
instruction regarding “accident,”1 a defense bearing on
culpability, Sanders concerned “sudden heat.” Sudden heat,
a mitigating factor in homicide, refers to the sort of extreme
mental or emotional disturbance which is “[t]he distinguish-
ing factor between murder and manslaughter . . . .”
McBroom v. State, 

, 728 (Ind. 1988).2 Under
Indiana law, if a defendant charged with murder produces
any appreciable evidence that he committed the crime
under sudden heat, the trial court must give a voluntary
manslaughter instruction, and the burden shifts to the
prosecution to prove the absence of sudden heat. 

(citing Roark v. State, 

,
882 (Ind. 1991), and 

). In other


1
  Before it was withdrawn in 2002, the accident defense had three
elements, which the State had the burden of disproving beyond a
reasonable doubt: (1) the conduct must have been unintentional,
or without unlawful intent or evil design on the part of the
accused; (2) the act resulting in injury must not have been an
unlawful act; and (3) the act must not have been done recklessly,
carelessly, or in wanton disregard of the consequences. Indiana
Pattern Jury Instructions-Criminal (2d ed. 1991).
2
  Indiana law defines “sudden heat” as “anger, rage, resentment,
or terror sufficient to obscure the reason of an ordinary man;
it prevents deliberation and premeditation, excludes malice,
and renders a person incapable of cool reflection.” 

.
4                                                No. 05-2029

words, the absence of sudden heat becomes a distinct
additional element the State must prove beyond a reason-
able doubt in order to obtain a conviction for murder rather
than manslaughter.
  In Sanders, we found that the trial court had erroneously
refused the defense attorney’s request for an instruction
which properly stated the law on sudden heat. 

The trial court mentioned sudden heat in its instructions on
manslaughter but misstated the State’s burden of proof and
did not make clear that absence of sudden heat was an
element of murder. 

on the
elements of an offense or the State’s burden to prove guilt
beyond a reasonable doubt are a violation of a defendant’s
due process right under the Fourteenth Amendment. 

(citing In re Winship, 

, 364 (1970), and
Cole v. Young, 

, 423 (7th Cir. 1987)). Moreover,
since appellate counsel failed to raise these issues on direct
appeal, we found that representation deficient and prejudi-
cial under Strickland v. Washington, 

, 686
(1984): had appellate counsel properly identified the trial
court’s errors, the defendant would have been entitled to a
new trial. 

.
   The issue in Charlton’s case, on the other hand, is quite
different. Whereas evidence of sudden heat introduces a
new element to the offense, the defense of accident is simply
another way of talking about culpability or intent. As long
as the jury is properly instructed on the elements of the
offense and the requirement that the State prove
all relevant facts beyond a reasonable doubt, an accident
instruction (at least as it was formulated in Indiana law
at the time of Charlton’s 1996 trial) does not give a defen-
dant any additional protection against a wrongful convic-
tion. It is just the negative of what the State must prove.
Thus, one key difference between this matter and Sanders
is that Charlton’s case does not present a viable due process
claim.
No. 05-2029                                                   5

   Charlton proceeds from a false premise: that he was
“entitled” to the accident instruction—indeed, that the
instruction was “unambiguously required.” We think this
overstates his case. A defendant is not entitled, in the
abstract, to any particular instruction. Under Indiana law,
he is entitled to tender proposed instructions that (1)
correctly state the law, (2) are supported by evidence in the
record, and (3) are not covered by other instructions.
Matheney v. State, 

, 1205 (Ind. 1992). While
as a “general principle . . . a defendant is entitled to an
instruction on any defense which has some foundation on
the evidence . . . it is equally well settled that it is not
reversible error for the trial court to refuse a tendered
instruction when the subject matter of that instruction is
covered by other instructions given by the court.” Warren v.
State, 

, 344 (Ind. 1984) (citations omitted);
see also Daniel v. State, 

, 370 (Ind. 1991)
(“[J]ury instructions are to be considered as a whole and in
reference to each other. Error in a particular instruction
will not require reversal unless the entire charge misleads
the jury as to the law in the case.” (citations omitted)), cert.
denied, 

(1992).
  For Charlton to claim that the shooting of Carpenter
was an accident is simply another way of saying he did
not act with the criminal intent required under Indi-
ana’s murder statute. See Ind. Code § 35-42-1-1. If the
jury thought Carpenter had received her fatal wound as the
result of an accident, it could not have found, as it did, that
Charlton intentionally shot her. Thus, as long as the jury
was properly instructed on the elements of murder and the
State’s burden to proof—which Charlton does not dis-
pute—the substance of the accident instruction was covered
by other instructions given, and its omission did not
mislead the jury as to the law.
 Our conclusion that the accident instruction is really
mere surplusage is confirmed by the fact that Indiana
6                                                    No. 05-2029

withdrew it from its pattern jury instructions in 2002. The
Indiana Judges Association Criminal Instructions Com-
mittee said it “could not conceive of a situation in which the
principles incorporated in an instruction on ‘accident’ would
not also be conveyed to the jury by the standard pattern
charges on the elements of the crime, the State’s burden to
prove, etc.” Indiana Criminal Pattern Jury Instructions,
draft 3d ed. (2002), http://www.in.gov/ judiciary/
center/docs/crim_pat_jury_instruct_0902.pdf; see also
Springer v. State, 

, 436 (Ind. 2003) (defen-
dant’s substantial rights were not prejudiced by the lack of
an accident instruction).
  To prevail on his federal claim of ineffective assistance,
Charlton must show that his trial counsel’s failure to
request the accident instruction rendered the attorney’s
performance objectively unreasonable and that the deficient
performance prejudiced the trial’s outcome. 

. Since giving an accident instruction, although
recognized in Indiana law at the time, was in no sense
essential to protect Charlton against a wrongful conviction,
his attorney’s decision not to ask that it be given was not a
failure of “reasonable professional judgment.” 

And since the substance of the acci-dent defense was
covered by other instructions, its omission could not have
prejudiced the outcome of Charlton’s trial. Thus, we



3
  During closing argument, Charlton’s trial counsel, Daniel
Weber, sought to cast doubt on the State’s evidence; argued that
the shooting could not have been intentional; and reminded the
jury of the State’s burden to prove intent beyond a reasonable
doubt. During state postconviction proceedings, Weber testified
that he chose to emphasize a theory of the case as reckless
homicide, rather than pursue an accident instruction, because
he doubted the jury would regard evidence it heard about
the trajectory of the bullet through Carpenter’s skull as consistent
with an accident defense.
No. 05-2029                                                      7

conclude that Charlton did not receive ineffective assistance
of counsel.
  Having explained why the district court misappre-
hended the applicable legal principles in granting the
habeas petition, we turn to the additional arguments
Charlton offers for why we should nonetheless affirm the
judgment.
  Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), a petitioner for habeas relief must
establish that the state court proceedings in his case
resulted in a decision (1) “that was contrary to, or involved
an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United
States,” or (2) “that was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). The relevant
decision for purposes of our assessment is the decision of
the last state court to rule on the merits of the petitioner’s
claim, McFowler v. Jaimet, 

, 446 (7th Cir.
2003)—in this case, the decision of the Indiana Court of
Appeals denying postconviction relief.
  Charlton contends that the state court’s ruling was
contrary to federal law because it did not set forth Strick-
land as the relevant precedent; did not determine whether
counsel’s conduct was objectively unreasonable as of the
time of the trial, see 

; and, under
Strickland’s prejudice prong, did not determine whether
there was a “reasonable probability” the outcome of
Charlton’s trial would have been different if his attorney
had requested the accident instruction, 

4
  Charlton also contends that the state court based its decision on
an unreasonable application of federal law and an unreasonable
determination of the facts because it failed to recognize Sanders
                                                     (continued...)
8                                                 No. 05-2029

  In a habeas case, “[a] state court’s decision is not ‘contrary
to . . . clearly established Federal law’ simply because the
court did not cite [the Supreme Court’s] opinions.” Mitchell
v. Esparza, 

, 16 (2003). A state court need not
even be aware of Supreme Court precedent “so long as
neither the reasoning nor the result of the state-court
decision contradicts them.” 

state appellate
court referred to an Indiana case decided several years after
Charlton’s trial (Springer v. State, 

(Ind.
2003), which had found the accident instruction unneces-
sary), the court did not, on our reading, consider itself
bound by the case as precedent. Rather, the court concluded
that Springer simply confirmed that the substance of the
accident instruction will typically be covered by other
instructions on elements of the offense and burden of
proof—instructions the appellate court specifically reviewed
and found correct. And since the jury was properly in-
structed on what the State had to show, there is no reason-
able probability that an accident instruction would have
changed the trial’s outcome. The state court’s decision was
not contrary to federal law.
  Finally, Charlton suggests that his federal due process
rights were violated when the trial court refused his
requested instruction on the lesser included offense of
reckless homicide. In noncapital cases, failure to charge
a lesser included offense will be found to violate due process
“only when the error is so fundamental a defect as to cause
a fundamental miscarriage of justice.” Robertson v. Hanks,

, 710 (7th Cir. 1998) (internal quotation marks
omitted).
  The record of the state postconviction proceedings
indicates that reckless homicide, rather than accident, was


4
  (...continued)
as governing precedent. We have already explained why that
argument must fail.
No. 05-2029                                               9

trial counsel’s preferred theory. Given that he admitted
his “involvement” with the shooting but denied wrongful
intent, Charlton now argues, failure to instruct on reckless
homicide untenably left the jury with only two
alternatives: convict on murder or acquit.
  On direct appeal, the Supreme Court of Indiana gave
extended consideration to Charlton’s reckless homicide
argument. See Charlton v. State, 

, 1048-49
(Ind. 1998). That court concluded that Charlton had “not
presented or referred us to any evidence showing that
his conduct was reckless, much less showing that there was
a serious evidentiary dispute over whether his conduct was
reckless.” 

Even giving Charlton the benefit of
the doubt on whether he properly preserved this issue as a
federal, as opposed to state law, claim, see Sweeney v.
Carter, 

, 332-33 (7th Cir. 2004), our own review
does not give us cause to disturb the state supreme court’s
finding.
  The judgment of the district court granting Charlton’s
petition for a writ of habeas corpus is REVERSED.
10                                        No. 05-2029

A true Copy:
      Teste:

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




               USCA-02-C-0072—2-28-06