In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-4066

F RAZIER C ROCKETT,
                                                Petitioner-Appellant,
                                  v.

D ONALD H ULICK,
                                                Respondent-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 03 C 4105—William T. Hart, Judge.
                          ____________

      A RGUED M AY 6, 2008—D ECIDED S EPTEMBER 8, 2008
                          ____________



   Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
  T INDER, Circuit Judge. Frazier Crockett is currently
serving sentences of natural life in prison without parole
and 30 years’ imprisonment for his 1996 convictions
for two counts of first degree murder and two counts of
robbery. After unsuccessful appeals to the Illinois Appel-
late Court and Illinois Supreme Court, Crockett filed a
petition for a writ of habeas corpus in the Northern
District of Illinois. The court denied his petition, and he
2                                              No. 06-4066

filed a notice of appeal. The district court granted
Crockett’s motion for a certificate of appealability on one
issue: Were Crockett’s constitutional rights denied when
he was not timely informed that the jury had sent a
question to the trial judge during deliberations?


                     I. Background
  Crockett’s convictions arise from the robbery and fatal
shooting of two men, Javier Guzman and Jorge Torres, in
an alley in Chicago’s Rogers Park neighborhood. Upon
Crockett’s arrest, he gave a statement to police describing
the crimes: He and James Swansey, with a gun drawn,
followed two men into an alley and demanded that the
men lie down. Swansey asked the men if they had any
money on them, but the men claimed they did not.
Crockett pointed the gun at the men while Swansey
searched them. Crockett then also searched the men and
found money in one man’s pocket. He suggested to
Swansey that they “pop” the men for lying, and Swansey
shot them both in the head.
  At trial, it was undisputed that Swansey was the trigger-
man. Three of Crockett’s acquaintances testified for the
State that Crockett told them that he and Swansey robbed
the men and Swansey shot them. Crockett’s theory of
defense was that he was present and watched the com-
mission of the crimes but did not participate. Crockett
testified at trial that on the night of the murders he had
been walking around with Swansey and Kenneth Henry.
(Henry was one of the State’s witnesses at trial and the
person who initially provided the tip to police that
Crockett had been involved in the crimes.) Crockett
No. 06-4066                                                 3

claimed that he stopped to talk to a friend on the street
when Swansey and Henry followed two men into the
alley. He was attempting to catch up to Swansey and
Henry and was standing in the entrance to the alley sixty
feet away when Henry and Swansey robbed the men. He
began to run away after Swansey fired the first shot. He
later accepted “hush money” from Henry to keep quiet
about what he had witnessed. Crockett explained that his
prior statement to police implicating himself (which did
not mention Henry) was a lie to protect Henry, whom he
feared, because Henry was a drug dealer for whom
Crockett sold drugs.
  During deliberations, the jury sent three notes to the
judge. The first two notes asked for a dictionary and for the
reports of police detectives. The judge directed the
sheriff to contact defense counsel by telephone about the
notes, and the court conferred with counsel about the
appropriate response. After the parties conferred, the judge
declined the jury’s requests and directed the jury to
continue deliberating. Later, the jury sent a third note to
the judge asking for a definition of the word “abet.” 1 The
judge again directed the sheriff to contact defense
counsel, but for unknown reasons the sheriff either did not
contact defense counsel or was unable to reach them. The


1
  The jury’s instruction on accountability included the word
“abet”: “A person is legally responsible for the conduct of
another person when either before or during the commission
of an offense and with the intent to promote or facilitate the
commission of the offense, he knowingly solicits, aids, abets,
agrees to aid or attempts to aid the other person in the
planning or the commission of the offense.”
4                                               No. 06-4066

judge did not respond to the jury, and the jury eventually
reached a guilty verdict. The judge did not inform
defense counsel before or after the verdict that the jury
had asked a third question.
  After the trial, defense counsel discovered the third note
from the jury in the court’s case file. In a post-verdict
motion for acquittal or a new trial, defense counsel in-
cluded affidavits from three jurors. All three jurors stated
that they had requested a dictionary to look up the word
“abet” but received a response from the trial judge to
keep deliberating. All three jurors stated that they later
sent a note specifically asking for the definition of “abet”
but received no response. One juror explained:
    Some of the jurors sent out a note asking for the
    definition of the word abet. We waited for a re-
    sponse but never received one. Eventually some of
    the jurors came up with their own definition
    because we had no legal definition. We decided
    that Frazier Crockett was guilty of aiding and
    abetting Kenneth Henry and James Swansey
    because, while he observed the robbery and mur-
    der from 60 feet away, Frazier Crockett did
    nothing to stop them, he kept the $40.00 hush
    money after the fact, and he never went to the
    police. The jury did not determine that Frazier
    Crockett encouraged, solicited, promoted or facili-
    tated the commission of the armed robberies
    and murders.
In less detail, the other two jurors provided similar ac-
counts of the deliberations, stating that they concluded
No. 06-4066                                                5

Crockett was guilty because he observed the crime and
never went to the police. The jurors made conflicting
estimates as to how much time had passed between
sending the note and reaching the verdict: one estimated
fifteen minutes, another estimated between thirty
minutes and one hour, and a third estimated one hour.
  The trial court denied Crockett’s motion for a new trial.
On appeal, the Illinois Appellate Court found that the
definition of the word “abet” was central to Crockett’s
defense because if the jury “mistakenly believed that ‘abet’
could encompass less culpable behavior than the other
terms [in the jury instruction], such as being present at the
commission of a crime and doing nothing about it, the
defendant’s defense was precluded.” People v. Crockett, 

, 835 (Ill. App. Ct. 2000). The court noted that
the jury was entitled to clarification, but Crockett shoul-
dered the burden of demonstrating factors such as how
much time elapsed before the verdict was reached and
what attempts were made to reach counsel; if the jury
reached a verdict before the court could reasonably
answer, then there was no reversible error. 

The court concluded that Crockett failed to construct
a record that demonstrated that the trial court unreason-
ably delayed in responding to the jury prior to the
verdict. 

The court found, however, that the
trial court erred in not informing Crockett after the
verdict was reached that the jury had asked a third ques-
tion, but it determined that the error was harmless because
Crockett had discovered the note within a 30-day period
(in time to move for acquittal or a new trial), the argument
on the motion did not occur for several more months, and
6                                                   No. 06-4066

he was able to obtain affidavits from three jurors. 

Supreme Court denied Crockett’s petition for
leave to appeal. People v. Crockett, 

(Ill.
2000).2
   Crockett filed a habeas petition under 28 U.S.C. § 2254
with the district court. The court noted that it does not
violate a defendant’s constitutional right to a fair trial
when a deliberating jury asks a question but reaches a
verdict before the court can reasonably respond. Crockett
contended that the situation was different where the
trial judge entirely failed to inform the defense counsel
before the verdict that the note even existed; the court
agreed the distinction could be important but found it to
be irrelevant in light of the Illinois Appellate Court’s
finding that the trial judge did attempt to contact the
defense counsel. While noting that Crockett had never
appealed the state court’s decision to place the burden
upon him, the district court inquired as to whether the
Illinois Appellate Court did so in error. The court reasoned
that if there were a constitutional error, then the Illinois
Appellate Court should have applied the harmless error
analysis of Chapman v. California, 

, 24 (1967), and
placed the burden on the State. The district court con-


2
  Crockett also unsuccessfully challenged an evidentiary
ruling and the exclusion of prospective African American
jurors under Batson v. Kentucky in his appeals to the Illinois
Appellate Court and Illinois Supreme Court. Those issues
were considered and rejected again by the district court in
Crockett’s habeas petition, and the district court declined to
grant Crockett a certificate of appealability on those two issues.
No. 06-4066                                                 7

cluded, however, that it was appropriate for Crockett to
bear the burden until he established that a constitutional
violation had occurred, which he failed to do. Finally, the
court concluded that Crockett could not sustain his
burden on habeas review with respect to the Illinois
Appellate Court’s determination that it was harmless
error for the trial court to fail to tell defense counsel
about the note after the jury’s verdict.


                        II. Analysis
  We review the district court’s findings of fact for clear
error and its legal conclusions de novo. Rizzo v. Smith, 

, 505 (7th Cir. 2008). The Antiterrorism and Effec-
tive Death Penalty Act of 1996 (AEDPA), which applies
to this case, Julian v. Bartley, 

, 492 (7th Cir.
2007), prohibits a federal court from issuing a writ of
habeas corpus on any claim that was adjudicated on the
merits in the state court, unless it: “(1) resulted in a deci-
sion that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreason-
able determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)-(2).
   A state court’s decision is “contrary” to clearly estab-
lished federal law if the state court “reached a result
opposite to that reached by the Supreme Court on materi-
ally indistinguishable facts.” Virsnieks v. Smith, 

, 713 (7th Cir. 2008). A state court’s decision is an
8                                                 No. 06-4066

“unreasonable application” of federal law if it identified
the proper legal principle from Supreme Court precedent
but unreasonably applied that principle to the facts of the
petitioner’s case. Rompilla v. Beard, 

, 380 (2005).
“To be unreasonable, the decision must not only be incor-
rect, but so incorrect that it lies outside of the range of
reasonable conclusions.” Jones v. Wallace, 

, 503
(7th Cir. 2008). In analyzing the reasonableness of the
state court’s decision on a factual matter, we assume that
the state court’s factual determinations are correct unless
the defendant rebuts them with clear and convincing
evidence. Mack v. McCann, 

, 533 (7th Cir.
2008); 28 U.S.C. § 2254(e)(1).
  Crockett’s appeal implicates both the legal and factual
components of AEDPA. He argues that: (1) the Illinois
Appellate Court erred in concluding that the trial judge
did not commit constitutional error when it failed to
notify defense counsel about the question and respond to
the jury prior to the verdict; (2) the Illinois Appellate
Court’s determination that the trial judge did not unrea-
sonably delay in answering the jury’s question prior to
the verdict was unreasonable in light of the evidence;
and (3) the Illinois Appellate Court found that the trial
judge erred in not informing defense counsel of the note
after the verdict but applied the wrong burden analysis,
contrary to Supreme Court precedent.3



3
  Crockett also requests that we grant his motion to supple-
ment the record on appeal with eleven items that were not
included in the record at the district court. Federal Rule of
                                                (continued...)
No. 06-4066                                                    9

    A. The Trial Court’s Actions Prior to the Verdict
  Crockett’s legal challenge focuses upon his right to a
fair trial, his right to counsel, and his right to be present
during all stages of trial. He cites several Supreme Court
cases: Maine v. Moulton, 

, 176 (1985) (holding
that “the Sixth Amendment is violated when the State
obtains incriminating statements by knowingly circum-
venting the accused’s right to have counsel present in a
confrontation between the accused and a state agent”);
United States v. Wade, 

, 236-37 (1967) (holding
that a defendant was entitled to counsel at a post-indict-
ment lineup); United States v. Gagnon, 

, 529
(1985) (holding that the “failure by a criminal defendant to
invoke his right to be present . . . at a conference which
he knows is taking place between the judge and a juror
in chambers constitutes a valid waiver of that right”);
and Rogers v. United States, 

, 39-40 (1975) (hold-
ing that it was error for the trial judge to answer a jury’s
question without giving defendant’s counsel an oppor-
tunity to be heard before the trial judge responded).


3
  (...continued)
Appellate Procedure 10(e) permits us to allow correction or
modification of the record on appeal where items were
omitted by error or accident. Although we usually decline to
supplement the record on appeal, two of the items offered by
Crockett are helpful for context—the jurors’ affidavits and the
accountability instruction. Therefore, we GRANT his motion to
supplement the record with those two items and DENY the
motion as to the other nine items. See Ruvalcaba v. Chandler, 

, 563 n.2 (7th Cir. 2005) (supplementing the record on
appeal for a habeas petition).
10                                                  No. 06-4066

  The Illinois Appellate Court first noted that it would
have been improper for the trial judge to respond to
the jury before contacting counsel, and the trial judge
appropriately did not do so. This is consistent with the
principle set forth by the Supreme Court in Rogers. The
court then held that it is not error for a trial judge to fail to
respond to a question by the jury if the jury reaches a
decision before a response can reasonably be provided.
Crockett does not cite a case in which the Supreme
Court held the opposite on materially indistinguishable
facts to show that this decision was “contrary” to Su-
preme Court precedent; nor does he show that the
decision involved an “unreasonable application” through
the appellate court’s unreasonable refusal to extend a
rule to a context where it should have applied. 

. In fact, he does not show that the
decision was incorrect, let alone “so incorrect that it lies
outside of the range of reasonable conclusions.” 

. Therefore, Crockett has not satisfied his
burden under AEDPA. See 

(rejecting
habeas petition and noting that Rizzo claimed constitu-
tional violations “but stop[ped] short of stating which
Supreme Court case provides clearly established
precedent for his position”); Lieberman v. Thomas, 

, 672 (7th Cir. 2007) (“Nowhere in the petition does
Lieberman demonstrate how the state appellate court’s
opinion conflicts with, or unreasonably applied, relevant
Supreme Court precedent . . . .”).
  Crockett’s factual challenge focuses upon the Illinois
Appellate Court’s determination that Crockett failed to
show that the trial court unreasonably delayed in inform-
No. 06-4066                                               11

ing defense counsel of the note prior to the verdict.
Crockett claims that the record shows the trial court did
unreasonably delay, and the Illinois Appellate Court’s
conclusion to the contrary was unreasonable in light of
the evidence. Applying the standard from Brecht v.
Abrahamson, 

, 637 (1993) (holding that an
error must have a substantial and injurious effect on the
verdict to entitle a petitioner to habeas relief), he claims
that the error had a substantial and injurious effect on
the jury’s verdict because the juror’s affidavits showed
that they accepted his trial testimony, which would very
likely have resulted in an acquittal if they had received
clarification on the meaning of “abet.” The district court
disagreed with Crockett, finding the Illinois Appellate
Court’s decision that the trial court did not unreasonably
delay was a reasonable determination based on the
facts in the record.
  Factually, we agree with Crockett that the record shows
that the trial judge had the telephone number for the
defense counsel, the sheriff successfully contacted defense
counsel by telephone for the previous jury notes, and
defense counsel asserted that they remained available by
telephone during the time period of the third question.
Crockett argues that this demonstrates “there were
means and opportunity to tell defense counsel about the
third note . . . . However, they were not told.” The Illinois
Appellate Court’s findings of fact did not contradict
Crockett’s version of the facts—the court never claimed
that defense counsel were unavailable or had been told
about the note. However, the court accepted the trial
judge’s statement that an attempt to contact counsel was
12                                                 No. 06-4066

made because the trial judge directed the sheriff to
call counsel, and Crockett does not provide us with clear
and convincing evidence that the judge did not give
the sheriff this direction. See 28 U.S.C. § 2254(e)(1). Armed
with that conclusion, the Illinois Appellate Court then
assessed whether the delay in responding to the jury
was unreasonable. The affidavits of the jurors show that
the trial judge received the note from the jury and did not
respond for fifteen minutes to one hour. The Illinois
Appellate Court cited several cases in which a judge did
not respond to a jury’s question: People v. Sims, 

, 935 (Ill. App. Ct. 1987) (holding that it was not
reversible error to fail to answer the jury’s question
where the trial judge was presiding over closing argu-
ments in a co-defendant’s case when the question was
asked and the jury reached a result before the judge could
confer with the parties); People v. Chandler, 

,
971 (N.Y. App. Div. 1985) (holding that it was not revers-
ible error for a trial court to fail to answer a jury’s question
for fifty minutes after which the jury returned a verdict);
People v. Hall, 

, 957 (N.Y. App. Div. 1984)
(holding that it was reversible error for a trial court to
fail to answer a jury’s question on the burden of proof for
two hours after which the jury returned a verdict).
The court concluded that Crockett did not construct a
sufficient record to show the trial judge acted unreason-
ably.
   Crockett notes that to the extent the reasonableness
inquiry was based upon a factual determination, the
Illinois Appellate Court did not make a finding that the
trial court acted reasonably; instead it refused to find that
No. 06-4066                                              13

the trial court acted unreasonably. While this is true, it
does not help Crockett in satisfying his burden under
AEDPA. The Illinois Appellate Court accepted the facts
that Crockett developed on appeal. Its decision was not
based upon an unreasonable determination of the facts
in light of the evidence; rather, its decision was based
upon the lack of evidence that would have been used as
“factors . . . in determining whether reversible error was
committed.” 

. Although
initially couched as a factual argument, Crockett later
claims that the reasonableness inquiry made by the
Illinois Appellate Court was a question of law, but he
does not attempt to cite any case that would show an
unreasonable application of federal law as established by
the Supreme Court. Therefore, his petition fails on this
issue. See Lockhart v. Chandler, 

, 724 (7th Cir.
2006) (“Lockhart failed to point to a relevant Supreme
Court case, [and] our own search . . . also failed to locate
such a case.”); cf. Burt v. Uchtman, 

, 566 (7th
Cir. 2005) (finding that the Illinois Supreme Court unrea-
sonably applied Supreme Court precedent from Pate v.
Robinson in determining that the trial court did not err
by accepting a guilty plea without ordering a renewed
competency hearing).


     B. The Trial Court’s Actions After the Verdict
  Crockett’s final argument is that the Illinois Appellate
Court made a legal error by employing the wrong burden
of proof analysis. That court noted that the trial judge
“clearly erred” by not informing defense counsel of the
14                                                     No. 06-4066

jury note as soon as practicable after the verdict but held
that the error was harmless. 

. The
district court stated that this factual finding was
presumed correct due to Crockett’s inability to make a
clear and convincing showing to the contrary.
  Crockett argues that because the Illinois Appellate
Court concluded that the trial court made a constitutional
error, it should have applied the burden of proof from
Chapman; this would require the State, not Crockett, to
satisfy the burden of proof, and the State must prove
that the error was not just harmless error but harmless
beyond a reasonable 

. Crockett argues
that the court’s failure to apply the correct standard had
a substantial and injurious effect upon him, see Fry v.
Pliler, 

, 2328, 

(2007) (applying
a Brecht standard on habeas review where the state appel-
late court failed to apply Chapman) 4 because, if the trial
court had informed him of the note immediately, he



4
   Crockett first argues that the error was “structural error”
(automatically requiring reversal) because it did not occur
during the trial and hence could not be “trial error,” which the
Brecht standard addresses. We reject the notion that all errors
occurring after the verdict are structural errors, see Washington
v. Recuenco, 

, 218-19 (2006) (“Only in rare cases
has this Court held that an error is structural, and thus
requires automatic reversal. In such cases, the error necessarily
renders a criminal trial fundamentally unfair or an unreliable
vehicle for determining guilt or innocence.” (internal footnote
and quotation omitted)), but we do not need to reach the
alternate question he poses: whether we should create a modi-
fied Brecht standard for the error’s effect on his ability to appeal.
No. 06-4066                                                    15

would have had the ability to obtain affidavits from
more jurors while the event was fresh in their minds. He
then could have satisfied the burden placed upon him
by the Illinois Appellate Court in showing that the trial
judge unreasonably delayed in answering the note
before the verdict.
  Crockett argued to the Illinois Appellate Court that not
informing counsel of the jury note after the verdict was
constitutional error, citing People v. Childs, 

,
538 (Ill. 1994), a case which invoked the Sixth Amend-
ment’s right to “participate in person and by counsel at
all proceedings which involve his substantial rights.”
Although the Illinois Appellate Court determined that
the trial court “clearly erred in its failure to ultimately
notify the defendant of the jury’s question at the earliest
opportunity after the verdict” the court never explicitly
stated that it found the error to be constitutional. 5 

. The court also did not address
which party had the burden of proof. The court did cite
Childs, a case that used the harmless beyond a reasonable


5
   Despite the ambiguity, Crockett assumes that the court
found a constitutional error but does not argue in the alternative
that the Illinois Appellate Court should have found a constitu-
tional error but did not. Compare United States v. Widgery, 

, 329 (7th Cir. 1985) (noting that in federal court “[a]
judge’s failure to show jurors’ notes to counsel and allow them
to comment before responding violates Fed. R. Crim. P. 43(a),
not the constitution”) with Moore v. Knight, 

, 940-42
(7th Cir. 2004) (discussing constitutional violations and preju-
dice to a defendant where the trial judge answered a jury’s
question ex parte that went to the defendant’s alibi defense).
16                                               No. 06-4066

doubt standard and, as previously mentioned, invoked
the Sixth Amendment. Crockett’s brief also advised the
Illinois Appellate Court that constitutional errors require
the State to prove that the error was harmless beyond a
reasonable doubt. Nevertheless, the court’s entire state-
ment on harmless error was:
     [I]n spite of this violation of the defendant’s right
     to be informed by the trial court, we must con-
     clude that the error was harmless. The record is
     clear that the defendant in fact discovered the note
     before he made his motion for a new trial, which
     would point to the actual discovery of this note
     well within the thirty-day period following the
     verdict. The record is further clear that the motion
     was not argued until several months later, giving
     the defendant ample time and opportunity to
     investigate and make a record of the circumstances
     prevailing at the time the jury question was sent.

not clear, as Crockett contends, that the court
applied the burden of proof to him on this issue. And while
the court did not use the term “harmless beyond a rea-
sonable doubt,” it is possible that the court was applying
the correct standard, albeit ambiguously.
  Even assuming that the Illinois Appellate Court held
the error was constitutional and failed to apply the harm-
less beyond a reasonable doubt standard to the State,
Crockett encounters another problem—he failed to present
this claim to the Illinois Supreme Court. The district
court discussed Crockett’s procedural default of a claim
that the Illinois Appellate Court had inappropriately
No. 06-4066                                                 17

placed the burden on him in proving that prior to the
verdict the trial court unreasonably delayed in answering
the jury’s question. The district court did not discuss
whether Crockett procedurally defaulted his after-the-
verdict Chapman claim because Crockett did not raise
that claim in the district court either. A procedural
default occurs where a habeas petitioner “has exhausted
his state court remedies without properly asserting his
federal claim at each level of state court review.” Malone
v. Wells, No. 06-3235, 

, at *6 (7th Cir.
Aug. 18, 2008). The exhaustion of state remedies require-
ment “serves the interests of federal-state comity by
giving states the first opportunity to address and correct
alleged violations of a petitioner’s federal right.” 

. The petitioner must fairly present the
federal nature of his claim to the state court by sub-
mitting “both the operative facts and the controlling legal
principles” of the federal claim through one full round of
review. Malone, 

at *6 (quotation omitted).
This includes asserting the claim to the Illinois Supreme
Court for discretionary review. O’Sullivan v. Boerckel, 

, 845 (1999).
  In Crockett’s petition for leave to appeal to the Illinois
Supreme Court, the extent of his claim was that “[t]he
court was required to convene the parties and then
provide the jury with a clarifying instruction. Failure to
do so deprived the defendant of a fair jury adjudication, by
a properly instructed jury” (internal citation omitted).
He never alerted the Illinois Supreme Court that the
failure to inform him of the jury note after the trial was
18                                                No. 06-4066

a constitutional error to which the appellate court
applied the wrong burden of proof. A “hypertechnical
congruence” of the claims is not required between
federal and state court for a claim to be fairly presented,
Anderson v. Benik, 

, 814-15 (7th Cir. 2006);
instead “we assess whether the petitioner alerted the
state court to the federal nature of his claim in a manner
sufficient to allow that court to address the issue on a
federal basis.” 

. Although
Crockett was aware of a heightened burden of proof
for constitutional violations because he addressed it in
his brief to the Illinois Appellate Court, he did not
inform the Illinois Supreme Court of his basis for the
claim now presented on habeas review in a manner
sufficient for the Illinois Supreme Court to address it in
the first instance. Therefore, he has procedurally
defaulted the claim. See 

(“Boerckel’s amended federal habeas petition raised
three claims that he had pressed before the Appellate
Court of Illinois, but that he had not included in his
petition for leave to appeal to the Illinois Supreme
Court. . . . Boerckel’s failure to present three of his federal
habeas claims to the Illinois Supreme Court in a timely
fashion has resulted in a procedural default of those
claims.”); Bintz v. Bertrand, 

, 864 (7th Cir.
2005) (“It appears that Robert did raise this issue in his
initial brief before the Wisconsin Court of Appeals. Robert,
however, never presented the [issue] to the Wisconsin
Supreme Court in his petition for that court to review the
decision of the Wisconsin Court of Appeals. While the
Wisconsin Supreme Court denied his petition for
No. 06-4066                                            19

review, Robert was still required to present the issue
to it.”).
  When a petitioner presents a defaulted claim for
federal habeas review, we may consider it only if he can
establish cause and prejudice for the default or that the
failure to consider the claim would result in a
fundamental miscarriage of justice. Johnson v. Loftus, 

, 455-56 (7th Cir. 2008). Crockett fails to argue
either point, and so we cannot consider his claim. Habeas
is an “extraordinary form of relief” to which Crockett
has not demonstrated that he is entitled. 

.


                    III. Conclusion
  We AFFIRM the district court’s denial of Crockett’s
petition for habeas corpus.




                          9-8-08