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

No. 02-1892
IVORY SMITH,
                                                Petitioner-Appellant,
                                  v.

KEVIN L. WINTERS,
                                                Respondent-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Western Division.
             No. 97 C 50323—George M. Marovich, Judge.
                          ____________
        ARGUED JUNE 11, 2003—DECIDED JULY 28, 2003
                          ____________


  Before POSNER, COFFEY, and RIPPLE, Circuit Judges.
  POSNER, Circuit Judge. In 1983 Ivory Smith and his step-
brother burglarized a home occupied by an elderly woman,
who in the course of the burglary was murdered by one of
the burglars, each of whom confessed to the burglary but
claimed that the other was the killer. Both were prosecuted
and (in separate trials) were convicted of felony murder.
Smith was sentenced to 60 years in prison, the stepbrother
to life. After protracted state court proceedings, Smith filed
a petition for federal habeas corpus that the district court
dismissed on procedural grounds without reaching the
merits. This appeal ensued. The parties have briefed the
2                                                   No. 02-1892

merits as well as the soundness of the district court’s pro-
cedural ruling.
   Smith, who is black, contends that he was denied due
process of law at his criminal trial because of prosecutorial
misconduct during selection of what turned out to be an all-
white jury. He contends that during the jury voir dire the
prosecutor drew swastikas on the case files that were lying
on the counsel table in front of him and that his action was
visible to the jury; that the judge summoned both counsel to
the bench to admonish the prosecutor; and that the prosecu-
tor said to the judge in the hearing of the jury, “Is it all right
if I draw a little old lady and a house?” There is no corrobo-
ration of these contentions, but for the moment we shall
assume that they are true.
  In his state postconviction petition Smith had made the
allegations that we have just recited and had further stated
that the remark about the old lady had infringed his right to
a fair trial, but he had not stated that the display of the
swastikas had infringed his right to a fair trial. The state trial
court denied his petition and in affirming the state appellate
court said that Smith had forfeited his claim relating to the
swastikas because he had not argued that the prosecutor’s
“drawing of swastikas was prejudicial.”
  In other words, the state appellate court characterized the
two factual allegations in Smith’s petition—the swastikas
and the old-lady remark—as belonging to different legal
claims, one of which the petition had failed to make and
therefore had forfeited. This is a crabbed and indeed an
unreasonable interpretation of the petition, which under the
heading “prosecutorial misconduct” states that the swasti-
kas “were in plain view of the Jury as it was being selected,”
that the trial judge summoned counsel to the bench, and
that the prosecutor made the old-lady remark, which Smith
“believes . . . was heard by the Jury and inflammatory in
No. 02-1892                                                   3

nature . . . [and] if the Jury heard the comment . . . it would
have so prejudiced the Jury as to deny the Defendant the
Right to a fair trial.” It seems clear that Smith was claiming
that the swastikas as well as the old-lady remark constituted
prosecutorial misconduct; the alternative interpretation, that
the swastikas were mentioned just to indicate the back-
ground to the old-lady remark, strikes us as unreasonable.
   Now it is true that the application, however unreasonable
it may seem, of a state-law doctrine, here that of forfeiture,
is an error merely of state law, and a federal judge in a
habeas corpus proceeding has no authority to correct such
errors. E.g., Bobo v. Kolb, 969 F.2d 391, 399 (7th Cir. 1992);
Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000). But when
the application is so surprising, unanticipated, unprece-
dented, unforeseeable, and indeed freakish as not to be
foreseeable by the petitioner, its existence will not block him
from pressing his federal claims in his federal habeas corpus
proceeding. Lee v. Kemna, 534 U.S. 362, 376 (2002); NAACP
v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958); Braun v.
Powell, 227 F.3d 908, 912 (7th Cir. 2000); Cotto v. Herbert, 331
F.3d 217, 240 (2d Cir. 2003); White v. Bowersox, 206 F.3d 776,
781 (8th Cir. 2000). It will not, in the accepted formula, be
deemed an adequate state ground upon which to uphold the
state court’s judgment. It is unreasonable to hold that as a
precondition to being able to litigate constitutional claims a
prisoner must comply with a state procedural requirement
of which he lacks, and could not by the exercise of reason-
able diligence have acquired, knowledge. Anyone in Smith’s
position would have assumed that a narrative of prosecuto-
rial misconduct that included the bizarre detail of a prosecu-
tor drawing swastikas in full view of the jury during voir
dire was a complaint about that conduct and not just about
the prosecutor’s subsequent flippant remark.
  So we proceed to the merits, where we can be brief. There
are two independent grounds on which Smith must lose.
4                                                  No. 02-1892

The first is that he has failed to substantiate his allegations
of prosecutorial misconduct. Ordinarily an affidavit alleging
matters that are both within the personal knowledge of the
affiant and germane to a vital issue creates a genuine issue
of material fact, but not where the allegations are so far
improbable as to verge on the fantastic and could if true be
corroborated but no effort at corroboration is made. Smith
should long ago have sought supporting affidavits from his
trial counsel, the trial judge, and the jurors. His failure to do
so, when coupled with the fact that the trial transcript
provides no support for his allegations, is strongly sugges-
tive of fabrication. It is highly unlikely that a prosecutor
however unscrupulous would suppose that his cause would
be advanced by exhibiting swastikas to prospective jurors.
Nazis are not popular in Illinois and a prosecutor who
identified himself as one to jurors would be impairing
rather than promoting the likelihood of a conviction. Cf.
State v. Molasky, 655 S.W.2d 663, 670 (Mo. App. 1983).
  Even if this analysis is wrong—and even if the allegations
are true—Smith must lose because the prosecutor’s mis-
conduct could not have changed the outcome of the trial,
provided the jury was rational. Having confessed to partici-
pation in the burglary, Smith had no defense to the charge
of felony murder except intoxication, a palpable nonstarter.
We can imagine a defense of intoxication succeeding in a
case of burglary if the defendant proved he had been so
drunk that he had thought he was breaking into his own
house. See Witherspoon v. State, 671 S.W.2d 143, 144 (Tex.
Crim. App. 1984); Arroyo v. State, 564 So.2d 1153, 1155 (Fla.
App. 1990); Hamilton v. State, 324 N.E.2d 822, 823 (Ind. App.
1975); see also People v. Lee, 593 N.E.2d 800, 803 (Ill. App.
1992); People v. Parker, 343 N.E.2d 52, 54 (Ill. App. 1976). But
that is not suggested and although the defense of intoxi-
cation was raised it was virtually abandoned when the
evidence showed that although Smith had been drinking
No. 02-1892                                                   5

and taking drugs, his actions were deliberate and his recol-
lection of the event vivid. The jury could have acquitted
Smith only if it decided to ignore the judge’s instruction on
the elements of felony murder—which in fact Smith’s
counsel invited the jury to do. A defendant has of course no
right to ask the jury to disregard the judge’s instructions
(“jury nullification”). Sparf v. United States, 156 U.S. 51, 102
(1895); Gibbs v. VanNatta, 329 F.3d 582, 584 (7th Cir. 2003);
United States v. Bruce, 109 F.3d 323, 327 (7th Cir. 1997);
United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996). A
defense that the law he is charged with violating is a bad
law that the jury should refuse to enforce is no defense at
all.
  We are mindful that a prosecutorial tactic that invokes or
relies on racial prejudice, such as striking prospective jurors
on racial grounds, is reversible error without regard to the
effect on the outcome. Batson v. Kentucky, 476 U.S. 79, 100
(1986); Vasquez v. Hillery, 474 U.S. 254, 264 (1986); Smith v.
Farley, 59 F.3d 659, 663 (7th Cir. 1995). But if the alleged
displaying of swastikas to jurors be deemed a racist tactic,
on the ground that Nazis are notoriously racist, still the
appeal to racial prejudice was too attenuated to preclude a
determination of harmless error under the normal standard,
that of Brecht v. Abramson, 507 U.S. 619 (1993), applicable
to state trial errors challenged by means of federal habeas
corpus. See Smith v. Farley, supra, 59 F.3d at 664; Thomas v.
Gilmore, 144 F.3d 513, 518 (7th Cir. 1998); Pickens v. Lockhart,
4 F.3d 1446, 1453 (8th Cir. 1993); Russell v. Collins, 944 F.2d
202, 204 n.1 (5th Cir. 1991) (per curiam); Soap v. Carter, 632
F.2d 872, 876 (10th Cir. 1980). It is not as if the prosecutor
had been wearing a white hood and singing “The Old
Rugged Cross.” Cf. Miller v. North Carolina, 583 F.2d 701 (4th
Cir. 1978); United States ex rel. Haynes v. McKendrick, 481 F.2d
152 (2d Cir. 1973). A prejudiced remark or its symbolic
equivalent is not a per se ground for reversal, as the cases
6                                                No. 02-1892

we have just cited show and others as well: Darden v.
Wainright, 477 U.S. 168, 179-83 (1986); Aliwoli v. Carter, 225
F.3d 826, 831 (7th Cir. 2000); Moore v. Morton, 255 F.3d
95, 114 (3d Cir. 2001). Even if as we doubt the swastika
incident actually occurred, still it was harmless so far as
the outcome of the trial was concerned.
                                                  AFFIRMED.
A true Copy:
        Teste:

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




                    USCA-02-C-0072—7-28-03
