In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3251

JEREMY D AVID G ROSS,
                                               Petitioner-Appellant,
                                 v.

S TANLEY K NIGHT,
                                              Respondent-Appellee.


             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
               No. 07 C 547—Richard L. Young, Judge.


   A RGUED D ECEMBER 10, 2008—D ECIDED M ARCH 26, 2009




 Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
  K ANNE, Circuit Judge. On August 26, 1998, Jeremy Gross
shot and killed Christopher Beers while robbing a conve-
nience store in Indianapolis. Gross was convicted of
murder and sentenced to life in prison without parole,
in accordance with a jury’s recommendation. Gross
claims that he received ineffective assistance of counsel
because his attorney never advised him of his right to
testify at the sentencing phase of his trial. The Indiana
courts denied Gross post-conviction relief from his sen-
2                                               No. 07-3251

tence, holding that he had suffered no prejudice
from his counsel’s conduct. Gross filed a petition for a
writ of habeas corpus in the district court, which denied
his claim because the state courts reasonably applied
federal law. We now affirm.


                     I. B ACKGROUND
  In the early morning hours on August 26, 1998, Gross
and accomplice Joshua Spears entered the Convenient
Food Mart in western Indianapolis where Gross was a part-
time employee. Gross, who had been smoking mari-
juana, brandished a gun and fired six rounds, striking
the cashier Christopher Beers three times and mortally
wounding him. Gross and Spears stole $650 from the
store, ripped out the phone lines, grabbed the video
recorder, and fled. Gross admitted to the robbery and
shooting when he was arrested later that morning.
  Gross was charged with murder, felony murder, conspir-
acy to commit robbery, and robbery. Defense lawyer
Robert Hill was appointed to defend Gross. Hill and his
team presented an intoxication defense at trial, but
their primary focus was on the penalty stage of the pro-
ceedings.
  Forty-two witnesses testified for the defense during
the sentencing phase to tell the story of Gross’s childhood.
The testimony revealed that Gross and his sister
had suffered physical violence, sexually inappropriate
interactions, and rampant substance abuse. At one point,
Gross’s mother Cindy sprayed lighter fluid onto a couch
No. 07-3251                                              3

where his father was sleeping and lit it on fire. After his
parents divorced, Gross was forced to share his home
with a variety of undesirable house guests, including a
child molester and a prostitute who slept nude on the
couch with assorted men. At times during his childhood,
Gross did well in structured environments such as foster
care, a youth center, and the Indiana Boys School, but he
always returned to his mother’s care, where he inevit-
ably reverted to a life of drinking and drugs.
  Gross did not testify before the jury. The only time
the jury heard him speak was in excerpts from a taped
news conference introduced into evidence. The jury
convicted Gross and unanimously recommended a sen-
tence of life in prison without parole.
  On June 9, 2000, the court conducted a sentencing
hearing. The judge employed a two-phase analysis to
determine the appropriate sentence. First, he addressed
the state’s argument that the court should override
the jury’s recommendation and impose the death pen-
alty. The judge agreed with the jury that the state
had proved an aggravating factor—the intent to
kill—beyond a reasonable doubt, and that aggravating
factors outweighed mitigating factors. Nonetheless, the
court declined to impose the death penalty.
  The court then proceeded to the second phase and
conducted its own analysis to determine whether the
sentence should be life without parole or a term of years.
The court heard testimony regarding victim impact, and
Gross expressed his remorse and apologized to Beers’s
family. After considering this testimony and the infor-
4                                                   No. 07-3251

mation contained in the presentence investigation
report, the court sentenced Gross to life in prison with-
out parole for the murder charge.1
  Gross filed a Petition for Post Conviction Relief,
alleging that his trial counsel was ineffective due to his
failure to apprise Gross of his right to testify at the sen-
tencing phase of trial.2 At a post-conviction relief
hearing on March 18, 2005, Hill, Gross’s trial counsel,
testified to the following:
    Q: Did you ever discuss with Jeremy the possibil-
    ity of testifying at this trial?
    A: I don’t remember discussing with [sic] Jeremy.
    I’m sure we did it and I’m sure I just told him it
    wasn’t going to happen.
    Q: Do you remember, or would it be your practice
    to advise him that he had a right to testify at either
    the guilt phase or the penalty phase?


1
  Gross was also sentenced for the related charges of robbery
and conspiracy to commit robbery. On direct appeal, the
Indiana Supreme Court reduced Gross’s conviction for rob-
bery from a Class A to a Class B felony and remanded the case
for resentencing on that charge. Gross v. State, 

,
1140 (Ind. 2002). However, it rejected Gross’s argument that a
sentence of life in prison was manifestly unreasonable
and upheld his murder sentence. 

2
  The petition also presented other allegations, including
double jeopardy violations and ineffective assistance of ap-
pellate counsel. None of these claims are relevant for purposes
of this appeal.
No. 07-3251                                                 5

    A: I don’t remember whether I did or not here.
    I’m sure I would have mentioned it, but I would
    have instructed him that no, it wasn’t going to
    happen.
    Q: So if you spoke to him about it, would you
    characterize it as a real discussion about it or just
    more of a unilateral decision?
    A: It would be more of a kind of a discussion I’d
    have with my 9-year-old about whether he’s going
    to clean his room, that this is the way it’s going
    to be, that kind of discussion. No, there wasn’t a
    give and take, if that’s what you mean.
Hill later clarified that it would have been his practice
to let Gross know that he had the right to testify. However,
he stated that he would have “[told] him it’s not going
to happen” because, in his view, it is a “huge mistake”
for defendants to testify in death penalty trials.
  Gross’s petition for post-conviction relief from his
murder sentence was denied. 3 The post-conviction court
based its decision in part on an erroneous conclusion
that Gross had in fact testified at the sentencing phase
of his trial.4 Notwithstanding this error, the Indiana
Court of Appeals affirmed on July 18, 2006. It acknowl-
edged the post-conviction court’s faulty finding, but held


3
  The court granted certain relief regarding Gross’s con-
spiracy sentence that is not relevant to this appeal.
4
  This confusion arose from the fact that Jeremy Gross’s
father, Jeffrey Gross, testified during the trial.
6                                               No. 07-3251

that Gross had suffered no prejudice because he had
presented no evidence that he ever desired to testify
during the penalty phase of his trial.
  On April 30, 2007, Gross filed a pro se petition for a writ
of habeas corpus in the Southern District of Indiana.
He claimed once again that Hill was constitutionally
ineffective for failing to discuss with him the option of
testifying at the penalty phase of trial.5 The district court
denied Gross’s petition, holding that the Indiana Court
of Appeals took the constitutional standard seriously
and did not apply it unreasonably to the facts of the
case. Gross now appeals.


                       II. A NALYSIS
  To be entitled to federal habeas relief from a state
court judgment, a petitioner must show that he is being
held in violation of the Constitution or laws of the
United States. 28 U.S.C. § 2254(a); Virsnieks v. Smith, 

, 721 (7th Cir. 2008). Where an alleged violation
was adjudicated on the merits in state court, federal
courts may grant relief only if the state determination was
contrary to, or an unreasonable application of, clearly
established federal law, or based on an unreasonable
determination of the facts. 28 U.S.C. § 2254(d); Arredondo
v. Huibregtse, 

, 1167-68 (7th Cir. 2008).
We review the district court’s denial of Gross’s petition



5
  Gross made several additional claims that are not the sub-
ject of this appeal.
No. 07-3251                                                7

de novo and its factual determinations for clear error.
Williams v. Bartow, 

, 497 (7th Cir. 2007).
  Gross claims that he received ineffective assistance of
counsel in violation of the Sixth Amendment. To prevail
on this claim, Gross must show that (1) his counsel’s
performance was deficient; and (2) this deficient perfor-
mance prejudiced him. Strickland v. Washington, 

, 687 (1984); Osagiede v. United States, 

, 408
(7th Cir. 2008). The Indiana Court of Appeals denied
Gross’s claim because he presented no evidence that he
ever desired to testify at trial and thus suffered
no prejudice from his counsel’s conduct. It did not
address whether Hill’s conduct was deficient. Because
we agree that Gross has failed to meet his burden to
show the prejudice required under Strickland, we
confine our review to this prong as well.
  To demonstrate that he suffered prejudice, Gross
must establish that there is a reasonable probability that
the result of the proceeding would have been different
but for counsel’s deficient performance. Strickland, 466
US. at 694. Gross does not need to show that it was
more likely than not that Hill’s conduct altered the out-
come of the case. Julian v. Bartley, 

, 498 (7th
Cir. 2007). Instead, this court has defined a “reasonable
probability” as a “better than negligible” chance. Id.;
United States ex rel. Hampton v. Leibach, 

, 246
(7th Cir. 2003).
 The determination of the Indiana Court of Appeals that
Gross failed to demonstrate prejudice was not based on an
unreasonable application of federal law or determination
8                                                No. 07-3251

of the facts. The only evidence Gross cites to support
this claim is Hill’s testimony at the hearing. Hill did not
remember any specific conversation with Gross re-
garding his right to testify, and he merely speculated as
to what his typical practice would be. In fact, Hill stated
that his usual practice would have been to inform a
defendant that he had a right to testify, but that he
would have instructed him not to.6 He did not, at any
time during his testimony, indicate that Gross had
actually expressed a desire to testify or that he had pro-
hibited him from doing so. In fact, he referred to Gross
as an “easy client” who followed his recommendations.
  As the Indiana Court of Appeals noted, Gross had
every opportunity to explain at his post-conviction
hearing that Hill never informed him of his right to
testify and that he would have testified had he been so
informed. He failed to do so. Gross made such an argu-
ment in briefs to the Indiana Court of Appeals and this
court, but arguments are not evidence. In fact, Gross
declined to testify at the hearing altogether, and he
never presented any actual evidence that he was not
advised of this right to begin with. The only evidence
was Hill’s speculation. It was therefore entirely reason-
able for the state court to find that Gross had failed to
demonstrate prejudice as required under Strickland.



6
  Because we focus solely on the prejudice prong of the
analysis, we express no opinion regarding whether Hill’s
typical course of conduct was deficient in light of prevailing
professional norms.
No. 07-3251                                                9

   Gross relies heavily on Underwood v. Clark, 

(7th Cir. 1991), for his argument that his testimony was
unnecessary to establish prejudice. In Underwood, we
rejected a rule requiring that the defendant protest his
lawyer’s actions during the trial. 

In so doing,
we noted that “the defendant might well feel too intimi-
dated to speak out of turn.” 

that to later
maintain an action for ineffective assistance of coun-
sel, “[t]he defendant need not protest [at trial] and the
judge need not question him.” 

estab-
lished a principle that a lack of evidence at trial demon-
strating that a defendant was prohibited from testifying
is not fatal to his claim. See 

situation we discussed in Underwood is not
before us. The Indiana Court of Appeals did not inquire
as to whether Gross had expressed a desire to testify at
trial; it simply reviewed the record from the post-convic-
tion relief hearing. Considering that Gross had already
brought a claim against his trial attorney for ineffective
assistance of counsel, the concern that he would be “too
intimidated to speak out of turn” does not apply to the
hearing. Nothing in Underwood changes the fact that
Gross was required to present the post-conviction court
with some evidence that he would have liked to testify
or that he was prohibited from doing so.
  In fact, we rejected the defendant’s ineffective assistance
of counsel claim in Underwood because he had not pro-
duced sufficient evidence to establish that he was pre-
vented from testifying. See 

We held that “the
defendant must produce something more than a bare,
10                                               No. 07-3251

unsubstantiated, thoroughly self-serving, and none too
plausible statement that his lawyer . . . forbade him to
take the stand.” 

We suggested that an affi-
davit from the defendant’s lawyer might suffice. Gross
now argues that Hill’s testimony is adequate evidence
because it establishes that he either failed to inform
Gross of his right or forbade him from testifying. But
this misconstrues Hill’s testimony. Hill merely specu-
lated as to what course of action he would take if, hypotheti-
cally, a defendant in a death penalty trial expressed the
desire to testify. This is certainly not sufficient to
render the decision of the Indiana Court of Appeals
unreasonable in light of the facts.
  Moreover, even if Gross had proved that he would
have testified if properly advised, we are not persuaded
that there is a better than negligible chance his testimony
would have resulted in a different outcome. At the time
Gross was sentenced, the judge was not bound to
follow the jury’s sentencing recommendation.7 Ind. Code
§ 35-50-2-9(e) (2000). To impose a sentence of life in
prison, the jury was required to find that the state
proved an aggravating circumstance and that the ag-
gravating circumstance outweighed the mitigating
factors, 

but the court made the final
sentencing determination after taking the same factors
into account, 

7
  Indiana law has changed since Gross’s trial. For defendants
sentenced after June 30, 2002, the court must impose the
sentence recommended by the jury. Ind. Code § 35-50-2-9(e).
No. 07-3251                                               11

  The aggravating factor in this case was the intentional
killing of Christopher Beers. Considering the vast amount
of mitigating evidence the defense offered on Gross’s
behalf, we do not believe that there is a “better than
negligible” chance that Gross’s expression of remorse
would have been sufficient to convince the jury that
an intentional murder did not outweigh the mitigating
factors. Once the jury made this finding, the judge was
free to disregard its recommendation and impose a term
of years. Instead, the judge concluded that life in prison
was warranted after conducting a careful analysis con-
sidering the evidence presented at trial, victim impact
statements, and Gross’s expression of remorse at the sen-
tencing hearing. We do not find a “better than negligible”
chance that the result would have been different had
Gross testified before the jury, rather than the judge alone.


                     III. C ONCLUSION
  The decision of the Indiana Court of Appeals that Gross
did not suffer prejudice as required by Strickland was not
unreasonable in light of federal law or the facts in the
record. Gross has not demonstrated that he would have
testified at trial, nor has he convinced us that his testi-
mony could have altered his sentence. The judgment of
the district court is A FFIRMED.




                           3-26-09