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

Nos. 00-3834, 00-3778
DEMETRIUS HENDERSON,
                                           Petitioner-Appellee,
                                             Cross-Appellant,

                               v.


KENNETH R. BRILEY, Warden,
Stateville Correctional Center,
                                       Respondent-Appellant,
                                             Cross-Appellee.
                        ____________
     On Remand from the Supreme Court of the United States.
                        ____________
  SUBMITTED MARCH 3, 2003—DECIDED JANUARY 16, 2004
                    ____________



 Before COFFEY, DIANE P. WOOD, and EVANS, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. In an order dated March
3, 2003, the Supreme Court of the United States vacated
the judgment of this court in Henderson v. Walls, 296 F.3d
541 (7th Cir. 2002), and ordered this court to reconsider its
decision in light of Woodford v. Visciotti, 537 U.S. 19 (2002).
We have now done so. We have concluded that the judg-
ment of the District Court conditionally granting the writ
of habeas corpus must be reversed in light of Visciotti and
subsequent decisions of the Supreme Court.
2                                     Nos. 00-3834, 00-3778

                              I
   In 1987, a jury convicted Demetrius Henderson of kidnap-
ping, gang raping, and murdering Kimberly Boyd.
Henderson waived his right to a sentencing jury, and the
judge sentenced him to death. The judge also imposed a 45-
year sentence for the aggravated criminal sexual assault
and a 10-year sentence for the aggravated kidnapping. The
Illinois Supreme Court upheld Henderson’s convictions on
direct appeal, although it reduced his sentence for the
aggravated criminal assault from 45 years to 30 years. See
People v. Henderson, 568 N.E.2d 1234 (Ill. 1990). It denied
Henderson’s petition for rehearing, and the United States
Supreme Court denied his petition for a writ of certiorari.
See Henderson v. Illinois, 502 U.S. 882 (1991). Henderson
then sought post-conviction relief under Illinois law, see 725
ILCS 5/122-1 et seq., but was unsuccessful. See People v.
Henderson, 662 N.E.2d 1287 (Ill. 1996), cert. denied,
Henderson v. Illinois, 519 U.S. 953 (1996).
   Having exhausted his state remedies, Henderson filed a
petition for a writ of habeas corpus in the district court. He
alleged, among other things, that the prosecution intention-
ally discriminated against African-Americans in its use of
peremptory challenges to prospective jurors, in violation of
the rule set forth in Batson v. Kentucky, 476 U.S. 79 (1986).
The district court granted Henderson relief on his Batson
claim, see U.S. ex rel. Henderson v. Page, No. 97 C 1079,
2000 WL 1466204 (N.D. Ill. Sept. 29, 2000), and we af-
firmed in Henderson v. Walls, supra. In that opinion, we
held that the Illinois Supreme Court had unreasonably
applied Batson in its decision on direct appeal when it re-
fused to consider evidence of similarities between stricken
black jurors and empaneled white jurors at the prima facie
stage. We recognized that a comparative analysis is not
required under Batson. Nevertheless, we held that when
this kind of comparative evidence is actually presented by
Nos. 00-3834, 00-3778                                         3

the defendant, it may not be rejected on lack of relevance
grounds. As we understood the record, Henderson’s case
was governed by the latter rule, and thus we affirmed the
district court’s decision to grant the writ. See Henderson,
296 F.3d at 549.
   On November 20, 2002, the State filed a petition for a
writ of certiorari with the United States Supreme Court.
While the Court had the petition under consideration, then-
Illinois Governor George Ryan issued a blanket clemency to
all state inmates on death row. Henderson was among those
whose death sentence was commuted to life in prison
without parole. On March 3, 2003, the Court vacated our
judgment and remanded for further consideration in light
of its decision in Visciotti. Like our case, Visciotti involved
the scope of deference a federal court owes to state court
decisions under 28 U.S.C. § 2254(d), as amended in 1996 by
the Anti-Terrorism and Effective Death Penalty Act. The
specific question in Visciotti was whether the California
state courts had erred when they rejected a claim of
constitutionally ineffective assistance of counsel claim,
either by deciding the question in a way contrary to Strick-
land v. Washington, 466 U.S. 668 (1984), or by unreason-
ably applying Strickland. The Ninth Circuit had concluded
that Visciotti had indeed been denied effective assistance of
counsel during the penalty phase of his trial and granted
relief, but the Supreme Court reversed. In the course of its
opinion, the Court stressed that federal courts must comply
with the “highly deferential standard for evaluating state-
court rulings,” Visciotti, 537 U.S. at 24, quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997).
   In its Statements of Position pursuant to Circuit Rule 54,
filed on April 22, 2003, the State argued that this court’s
earlier decision ran afoul of the obligation to defer to all but
“unreasonable” decisions of the state courts. The Illinois
Supreme Court’s resolution of the Batson claim, it claimed,
4                                     Nos. 00-3834, 00-3778

did not stray over that line, and thus Henderson’s petition
had to be rejected. Henderson argued that our decision was
entirely consistent with Visciotti and asked us to reaffirm
our original judgment. Neither statement addressed the
effect, if any, of former Governor Ryan’s general commuta-
tion of death sentences, and thus this court issued an order
on April 30, 2003, asking Henderson to clarify whether his
sentence had been commuted and, if so, whether he wished
to pursue this litigation. He responded on May 12 that his
sentence was indeed now one of life in prison, but that this
did not affect his interest in continuing with his Batson
claim (which, if successful, would entitle him to a new trial
and new sentencing, though in any such proceedings he
would once again be at risk of receiving a new capital
sentence). In light of Henderson’s position, we have there-
fore proceeded with the merits of the remand.


                             II
  According to 28 U.S.C. § 2254(d)(1), a federal court may
grant a petition for a writ of habeas corpus only if the state
court’s adjudication of the relevant claims “resulted in a
decision that . . . involved an unreasonable application of
clearly established Federal law, as determined by the
Supreme Court of the United States.” As we noted in our
original opinion and as the Supreme Court reiterated in
Visciotti, review under this statute is “severely restricted.”
Henderson, 296 F.3d at 545 citing Sanchez v. Gilmore, 189
F.3d 619, 623 (7th Cir. 1999). In Visciotti, the Court held
that “a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment
that the state-court decision applied Strickland incorrectly.”
Visciotti, 537 U.S. at 24-25. This means that the question
before a federal court on collateral review under this part of
the statute is only whether the state court’s decision was so
Nos. 00-3834, 00-3778                                      5

far out-of-bounds as to be “unreasonable.” In making that
decision, we must take into account both the procedural and
the substantive aspects of the state court’s action.
  Upon reconsideration in light of the broad message in
cases like Visciotti and Yarborough v. Gentry, 124 S.Ct. 1,
540 U.S. ___ (2003), we are now persuaded that it would be
inconsistent with § 2254(d) to grant Henderson’s petition
for a writ of habeas corpus. As explained in our original
opinion, the record in this case came to us in an unusual
posture. Henderson, 296 F.3d at 545-46. Deficiencies in
the trial court record led the Illinois Supreme Court to con-
duct its own review of the facts concerning the peremptory
challenges exercised by the parties. In a sense, that court
constructed an after-the-fact Batson process, and it decided
on the basis of the record as a whole that there was no
showing of purposeful discrimination. While the court may
have been careless with its language along the way, as we
explain below, its comment about the use of comparative
evidence at the prima facie stage was somewhat artificial,
since it was fashioning the entire framework for itself. At
the end of the day, its conclusion that the record as a whole
did not compel a finding of intentional discrimination in the
use of peremptory challenges is not so unsupported as to be
branded “unreasonable.”
   This does not mean, we stress, that the fundamental legal
analysis on which our original opinion was based was in
error. Indeed, in Miller-El v. Cockrell, 537 U.S. 322 (2003),
the Supreme Court provided support for our approach when
it explicitly considered comparative data showing similari-
ties between rejected black jurors and empaneled white
jurors in determining the merits of a Batson claim, id. at
343. Miller-El, of course, was about the appropriate stan-
dard for issuance of a certificate of appealability based on
a prisoner’s Batson claim, not about the ultimate decision
whether a writ should issue. Id. at 341-42. But in a more
6                                       Nos. 00-3834, 00-3778

conventional Batson case, where the question arises at the
trial level whether comparative evidence actually proffered
by a defendant should be admitted as relevant, the answer
remains yes.
  Nothing in Visciotti changes our resolution of Henderson’s
remaining two claims, which came to us on a cross-appeal.
See Henderson, 296 F.3d at 551-56. Henderson is not
entitled to relief for ineffective assistance of counsel, see id.
at 552-54, or for an ineffective waiver of his right to a
sentencing jury, see id. at 554-56. Our decision leaves
Henderson where he would have been had he never filed a
habeas petition at all—that is to say, convicted of the crime,
but now relieved of the death sentence because of former
Governor Ryan’s grant of clemency while this case was
pending.


                              III
  For these reasons, we REVERSE the judgment of the
district court with respect to Henderson’s Batson claim. We
AFFIRM the judgment of the district court with respect to
Henderson’s claims based on ineffective assistance of
counsel and ineffective waiver of a sentencing jury.
A true Copy:
       Teste:

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




                    USCA-02-C-0072—1-16-04
