                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3160

D ENNIS E MERSON,
                                                Petitioner-Appellant,
                                  v.

F RANK S HAW, Warden,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 06 C 452—Marvin E. Aspen, Judge.



     A RGUED S EPTEMBER 18, 2008—D ECIDED JULY 30, 2009




   Before E ASTERBROOK , Chief Judge, and SYKES and
T INDER, Circuit Judges.
  S YKES, Circuit Judge. Dennis Emerson is serving a term
of life imprisonment after a former Illinois governor
commuted his death sentence, which stems from a
murder he committed during an armed robbery.
Emerson has petitioned for a writ of habeas corpus
under 28 U.S.C. § 2254, claiming that his counsel at his
sentencing hearing was ineffective and that he should
2                                             No. 07-3160

be resentenced. He argues specifically that his counsel
should have objected to the sentencing court’s response
to a question from the jury and also that his counsel
should have offered the judge a more explicit answer to
the jury’s question. On postconviction review the Illinois
Appellate Court rejected Emerson’s arguments, and on
habeas review the district court denied his petition.
We affirm.


                     I. Background
  In 1979 Dennis Emerson and Richard Jackson, his
brother, robbed Robert Ray and Ray’s girlfriend, Delinda
Byrd, at gunpoint. Emerson and Jackson then tied the
victims’ hands and feet, and Emerson stabbed Ray twice
in the chest with a pair of scissors. Ray survived by
playing dead. According to Ray’s testimony, Emerson
then approached Byrd and brought his hands down
upon her body in a stabbing motion. Because Ray was
playing dead, he did not look directly at the strike and
therefore did not actually see Emerson stab Byrd.
Emerson and Jackson then left the room and set fire to
the building as they fled. Ray escaped, but Byrd died
from a stab wound. Emerson was charged with the
murder of Byrd, attempted murder of Ray, armed
robbery of both victims, and arson.
  This case arrives here with a long and complicated
history in state and federal courts, most of which is not
No. 07-3160                                                       3

relevant to this appeal.1 Emerson was convicted in Illinois
state court of murder, attempted murder, and armed
robbery, and he was sentenced to death. See People v.
Emerson, 606 N.E.2d 1123 (Ill. 1992), cert. denied, 507 U.S.
1037 (1993). Emerson later petitioned for a writ of
habeas corpus under 28 U.S.C. § 2254 based on a sen-
tencing issue. The federal district court granted the
petition and required resentencing. United States ex rel.
Emerson v. Gramley, 883 F. Supp. 225 (N.D. Ill. 1995), aff’d,
91 F.3d 898 (7th Cir. 1996).
  The Circuit Court of Cook County held a new sentencing
hearing, which forms the basis of this appeal. The hearing
focused on whether the State could prove a particular
aggravating factor—murder in the course of armed rob-
bery. Emerson’s counsel maintained during closing
argument that Emerson was ineligible for the death
penalty because the State failed to prove that Emer-


1
   In Emerson’s first trial, a jury convicted him on all charges,
and Emerson was sentenced to death. On direct appeal the
Illinois Supreme Court reversed the convictions and remanded
for a new trial. People v. Emerson, 455 N.E.2d 41 (Ill. 1983). In
1985 Emerson was retried, again convicted on all counts, and
again sentenced to death. The Illinois Supreme Court affirmed
the convictions for murder, attempted murder, and armed
robbery, affirmed the death sentence, but reversed the convic-
tion for aggravated arson. People v. Emerson, 522 N.E.2d 1109
(Ill. 1987), cert. denied, 488 U.S. 900 (1988). The Illinois Supreme
Court also upheld the dismissal of a postconviction petition
filed in 1989. People v. Emerson, 606 N.E.2d 1123 (Ill. 1992),
cert. denied, 507 U.S. 1037 (1993).
4                                             No. 07-3160

son “actually struck the fatal blow that led to Delinda
Byrd’s death.” The court instructed the jury in relevant
part:
      Before [Emerson] may be found eligible for a death
    sentence under the law, the State must prove the
    following propositions:
    First:   That [Emerson] was 18 years old or older
             at the time of the commission of the
             murder . . . ; and
    Second: That the following statutory aggravating
            factor exists:
             The murdered person was killed in the
             course of another felony if
             The murdered person was actually killed
             by [Emerson]; and
             In performing the acts which caused the
             death of the murdered person, [Emerson]
             acted with the intent to kill the murdered
             person or with the knowledge that his acts
             created a strong probability of death or great
             bodily harm to the murdered person; and
             The other felony was armed robbery.
      If you find from your consideration of all the evi-
    dence that the first and second propositions have
    been proved beyond a reasonable doubt, then [Emer-
    son] is eligible for a death sentence.
      If you cannot unanimously find that both the first
    and second propositions have been proved beyond a
No. 07-3160                                                 5

    reasonable doubt, then [Emerson] is not eligible for
    a death sentence.
  During deliberations the jury sent a note to the judge
asking, “Do we unconditionally accept the previous
judgments of guilty for murder, attempted murder and
two counts of armed robbery as fact when evaluating
this case or can we apply reasonable doubt to the prior
guilty verdicts?” The court asked the parties for input
on how it should respond. Defense counsel suggested
that the jury be instructed as follows: “You are required
to deliberate solely based on the evidence you have
heard in this case in accordance with my instructions.” The
State proposed: “You have evidence before you that
[Emerson] has been convicted of armed robbery,
attempted murder and murder. You are to consider that
evidence in the eligibility phase.” The judge instead
instructed the jury: “You have received the evidence and
jury instructions. Please continue to deliberate.” Neither
side objected to this instruction. After further deliberation,
the jury returned a finding that Emerson was eligible
for the death penalty, and the court imposed the death
sentence.
  On direct appeal Emerson, represented by his sen-
tencing counsel, argued that the sentencing court erred
by not answering the jury’s question. He claimed that
there was a “strong likelihood” that “the jury failed to
make its own determination at eligibility as to whether
defendant had actually killed Byrd because it assumed
that this issue had already been determined at trial.”
People v. Emerson, 727 N.E.2d 302, 333 (Ill. 2000). Affirming
6                                                       No. 07-3160

Emerson’s death sentence, the Supreme Court of Illinois
held that Emerson waived this argument by failing to
object to the court’s response or offer a substantively
different proposal. Specifically, the supreme court stated,
“[W]e are unable to discern any significant difference
between the answer suggested by defense counsel and
the answer the circuit court provided to the jury.” Id.
   Emerson then sought postconviction relief in Illinois
courts, claiming ineffective assistance of counsel.2 The
Illinois Appellate Court analyzed Emerson’s claim under
the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984). The court held that counsel was not
ineffective in suggesting that the judge instruct the jury
to continue to deliberate based on the court’s original
instructions, and that in any event, “there is no reasonable
probability that, absent his counsel’s errors, defendant
would not have been sentenced to death.” The


2
   Emerson’s ineffective-assistance-of-counsel claim also arrives
in a complicated manner. While Emerson’s postconviction
petition was pending in Illinois courts, then-Governor George
Ryan commuted Emerson’s death sentence to life in prison.
Under Illinois law, a sentence of life imprisonment is lawful
only if a jury concludes that an aggravating factor exists. See
730 I LL . C OMP . S TAT . 5/5-8-1(a)(1)(a) to (a)(1)(b) (capping the
sentence for first-degree murder at 60 years unless an aggravat-
ing factor is found); People v. Mata, 842 N.E.2d 686, 691 (Ill. 2005).
In light of Mata, the Illinois Supreme Court allowed Emerson
to challenge his life sentence in state court based on the jury’s
finding that the aggravating factor—murder in the course
of armed robbery—existed.
No. 07-3160                                                 7

court therefore affirmed Emerson’s sentence. The Illinois
Supreme Court denied leave to appeal.
  Emerson then filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254, which the district court denied.
Analyzing Emerson’s claim under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254(d), the district court held that the Illinois Appellate
Court’s judgment was neither contrary to, nor an unrea-
sonable application of, Strickland. Emerson appealed.


                      II. Discussion
  Emerson is not entitled to federal habeas relief under
AEDPA unless he shows that the Illinois Appellate Court’s
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). A state court’s decision is “contrary
to” clearly established federal law “if the state court
applies a rule different from the governing law set forth
in [Supreme Court] cases, or if it decides a case differ-
ently than [the Supreme Court has] done on a set of
materially indistinguishable facts.” Bell v. Cone, 535 U.S.
685, 694 (2002). A court’s decision is an “unreasonable
application” of clearly established federal law “if the
state court correctly identifies the governing legal
principle from [Supreme Court] decisions but unreason-
ably applies it to the facts of the particular case.” Id. For
Emerson to prevail on this latter prong, he must show
that the Illinois Appellate Court’s decision was “so errone-
8                                               No. 07-3160

ous as to be objectively unreasonable.” Badelle v. Correll,
452 F.3d 648, 654 (7th Cir. 2006). In other words, the
court’s decision must “l[ie] well outside the boundaries
of permissible differences of opinion.” Hardaway v. Young,
302 F.3d 757, 762 (7th Cir. 2002).
  Emerson’s ineffective-assistance-of-counsel claim is
controlled by “clearly established Federal law,” namely,
the legal principles set forth in Strickland v. Washington.
Strickland’s familiar two-step process for determining
whether a counsel’s assistance fell below Sixth Amend-
ment standards is as follows:
    First, the defendant must show that counsel’s perfor-
    mance was deficient. This requires showing that
    counsel made errors so serious that counsel was not
    functioning as the “counsel” guaranteed the defendant
    by the Sixth Amendment. Second, the defendant
    must show that the deficient performance prejudiced
    the defense. This requires showing that counsel’s
    errors were so serious as to deprive the defendant of
    a fair trial, a trial whose result is reliable. Unless a
    defendant makes both showings, it cannot be said
    that the conviction or death sentence resulted from a
    breakdown in the adversary process that renders
    the result unreliable.
466 U.S. at 687.
  Under the Strickland standard on direct review,
“[j]udicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. “[A] court must indulge
a strong presumption that counsel’s conduct falls within
No. 07-3160                                               9

the wide range of reasonable professional assistance.”
Id. On habeas review the bar is even higher. Emerson
“must do more than show he would have satisfied Strick-
land’s test if his claim were being analyzed in the first
instance . . . . [H]e must show that the [Illinois Appellate
Court] applied Strickland to the facts of his case in an
objectively unreasonable manner.” Bell, 535 U.S. at 698-99;
see also Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir.
1997) (“Strickland builds in an element of deference to
counsel’s choices in conducting the litigation; § 2254(d)(1)
adds a layer of respect for a state court’s application of
the legal standard.”).
  Emerson does not argue that the Illinois court’s decision
was “contrary to” Supreme Court precedent. He argues
instead that the Illinois court unreasonably applied Strick-
land in rejecting his ineffective-assistance-of-counsel
claim. We review de novo the district court’s denial of
Emerson’s petition. Julian v. Bartley, 495 F.3d 487, 491
(7th Cir. 2007).
  Emerson first argues that his counsel was deficient
because he did not request that the judge clarify that the
jury was asked to determine whether the State had
proved beyond a reasonable doubt that Emerson
actually killed Byrd. In other words, while Emerson
concedes that the original instruction was legally correct,
he contends that the jury was nonetheless confused. He
argues that his counsel should have, but did not, ask the
judge to try to clear up that confusion, and that this
omission deprived him of his constitutional right to
effective assistance of counsel. The Illinois Appellate
10                                                  No. 07-3160

Court rejected this argument. The court concluded that
the judge’s original instructions fairly encompassed
what Emerson submitted his counsel should have said.
The court further held that even if counsel were ineffec-
tive, “there is no reasonable probability that, absent
his counsel’s errors, defendant would not have been
sentenced to death.”
   Under our deferential review, the Illinois court’s ap-
plication of Strickland was not objectively unreasonable. We
have repeatedly held that judges are well within their
discretion to refer a jury back to the original instructions
when the jury evinces possible confusion. E.g., United
States v. Span, 170 F.3d 798, 802 (7th Cir. 1999); United States
v. Beverly, 913 F.2d 337, 351-52 (7th Cir. 1990); United States
v. Mealy, 851 F.2d 890, 901-02 (7th Cir. 1988); accord Weeks
v. Angelone, 528 U.S. 225, 234 (2000).3 As long as the
original instructions accurately and understandably state
the law, referring a jury back to those instructions can
be the most prudent course for at least two reasons. First,
jury instructions often come from pattern instructions
that have been analyzed by appellate judges in actual
cases. See, e.g., Ill. Pattern Jury Instr., Crim. 7B.06 (defining
death penalty eligibility); see also People v. Kuntu, 752


3
   Bollenbach v. United States, 326 U.S. 607 (1946), which Emerson
cites, is not to the contrary. In that case, the Supreme Court
reversed a conviction where the judge responded to the jury’s
questions in a manner that was “palpably erroneous.” Id. at 611.
Here, Emerson concedes that the jury instructions were accurate,
and the judge’s reference to these instructions was proper. See
Weeks, 528 U.S. at 231 (distinguishing Bollenbach on these
grounds).
No. 07-3160                                                11

N.E.2d 380, 397 (Ill. 2001) (holding that a substantially
similar verdict form correctly stated the law and clearly
required the jury to find that defendant actually killed the
victim). Deviating from these instructions creates the
needless risk of reversible error. Second, jury questions
can be ambiguous. In this case, for example, there are at
least two plausible interpretations of the jury’s question:
It is possible, as Emerson contends, that the jury was
confused over whether it had to find beyond a rea-
sonable doubt that Emerson actually killed Byrd. Alter-
natively, and more likely, the jury was confused over
whether it had to retry Emerson for the underlying
crimes. No matter which interpretation is correct, di-
recting the jury back to the correct instructions answered
both questions.4
  Emerson’s attorney essentially suggested that the
judge follow this generally accepted response to jury
questions of this sort; this cannot amount to deficient
performance under Strickland. We hold that the Illinois
Appellate Court did not unreasonably apply Strick-
land in concluding that Emerson’s counsel was not inef-
fective.
  We also conclude that the Illinois court did not unrea-
sonably hold that Emerson failed to satisfy Strickland’s


4
  To the extent Emerson argues that the jury was also confused
about whether it had to retry Emerson on all charges, Emerson
cannot show prejudice. The jury’s finding that Emerson was
death-eligible strongly suggests that it also believed that
Emerson was guilty on the underlying counts.
12                                              No. 07-3160

prejudice requirement. See 466 U.S. at 687. Demonstrating
prejudice in this case requires at least two steps, and
Emerson cannot satisfy either. First, there must be a
reasonable probability that “effective” counsel could
have altered the judge’s response to the jury’s question.
Otherwise, the sentencing hearing would have played
out the same way. This is a difficult showing considering
that the jury was properly instructed and the sentencing
court properly exercised its discretion in instructing
the jury to refer back to the original instructions. Second,
and even more difficult, Emerson must show that if the
judge gave the response Emerson now suggests should
have been given, it is reasonably probable that the jury
would have found that the aggravating factor did not
exist—that is, that Emerson did not actually kill Byrd.
Ray testified that he saw Emerson approach Byrd right
after Emerson stabbed him with scissors, and also that
he saw Emerson bring his hands violently down upon
Byrd. The evidence also established that Byrd died
from stab wounds. Based on these facts, the Illinois
court’s decision regarding the lack of prejudice does not
“l[ie] well outside the boundaries of permissible differ-
ences of opinion.” Hardaway, 302 F.3d at 762. Accordingly,
Emerson’s first argument fails under either prong of
Strickland.
  Emerson also makes a second, conclusory argument that
had his attorney objected to the court’s instruction, he
could have argued that the judge erred under People v.
Childs, 636 N.E.2d 534 (Ill. 1994), and the appellate court
could have required resentencing. The Illinois Appellate
No. 07-3160                                               13

Court rejected Emerson’s argument by concluding that
Emerson would have been sentenced to death even
absent his counsel’s error.
  Childs involved a defendant on trial for armed robbery
and murder. The jury was instructed on the felony-
murder rule, but the trial court did not submit a verdict
form on felony murder. During deliberations the jury
asked, “Can the defendant be guilty of armed robbery
and voluntary or involuntary manslaughter or must
murder be the only option with armed robbery?” Childs,
636 N.E.2d at 538. The judge advised the jury to continue
to deliberate. The Illinois Supreme Court noted that
under Illinois law, “[a] trial court may exercise its discre-
tion and properly decline to answer a jury’s inquiries
where the instructions are readily understandable and
sufficiently explain the relevant law.” Id. at 539. However,
the supreme court required retrial in Childs because it
concluded that the jury’s question “manifested juror
confusion on a substantive legal issue,” that is, whether a
finding of guilt for armed robbery requires a finding
of guilt for murder under the doctrine of felony murder.
Id. at 540.
   Childs does not sweep as broadly as Emerson claims;
other Illinois decisions make clear that Illinois would
uphold the sentence under the circumstances of this
case. For example, in People v. Pulliam, 680 N.E.2d 343 (Ill.
1997), which cites Childs, the jury asked the judge what
it should do if it could not reach a unanimous decision.
The Illinois Supreme Court endorsed the trial court’s
decision to refer the jury to its original instructions
14                                               No. 07-3160

because “the instructions given to the jury concerning
unanimity were readily understandable and sufficiently
explained the relevant law.” Id. at 355. Likewise, in People
v. McDonald, 660 N.E.2d 832 (Ill. 1995), which also cites
Childs, the jury asked the judge about the definition of
“mitigating factors.” The Illinois Supreme Court again
upheld the judge’s reference to its original instructions,
concluding, “[g]iven the clarity and sufficiency of the
instruction on mitigation, defendant suffered no prejudice
when the trial judge referred the jurors to that instruction.”
Id. at 850. Finally, in People v. Reid, 554 N.E.2d 174 (Ill.
1990), the jury asked whether it could find the defendant
guilty of one charged crime but not the other. The Illinois
Supreme Court upheld the judge’s failure to respond: “It
is apparent the [trial] court concluded that the instruc-
tions sufficiently apprised the jury of the applicable
law. Thus, under the circumstances, the [trial] court did not
abuse its discretion by referring the jury to the written
instructions.” Id. at 180.
  Here, the jury was specifically instructed that it
must find that “[t]he murdered person was actually killed
by [Emerson].” Such an instruction is “readily under-
standable and sufficiently explain[s] the relevant law.”
Childs, 636 N.E.2d at 539; see also Kuntu, 752 N.E.2d at 397.
Accordingly, it was not unreasonable for the Illinois
Appellate Court to conclude that Emerson could not show
prejudice under Strickland even if his counsel had pre-
No. 07-3160                                                 15

served his Childs argument.5
                                                   A FFIRMED.




5
   Emerson’s Childs argument in effect posits that a counsel’s
failure to object is per se ineffective whenever a state ap-
pellate court might have reversed on direct appeal had the
attorney preserved the argument. This theory creates an
anomalous result under Strickland and AEDPA because peti-
tioners would face a more lenient standard on habeas
review than they faced on direct or postconviction review. Take
this case as an example. Had his attorney preserved the argu-
ment, Emerson would have obtained resentencing on direct
review in state court only by prevailing under Childs. On
habeas review, under Emerson’s theory, he should obtain
resentencing whenever there is a chance that he could have
prevailed under Childs. This cannot be correct. Moreover,
Emerson’s theory would create a perverse incentive for
counsel not to object so that either way his client would take
advantage of a more lenient standard on habeas review. Because
we conclude that the Illinois Appellate Court did not unreason-
ably apply Strickland’s prejudice prong, we need not reach this
issue, but simply note the anomaly that Emerson’s sweeping
proposition would create.



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