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

No. 03-2622
WILLIAM A. SANDERS,
                                           Petitioner-Appellant,
                               v.

ZETTIE COTTON,
                                          Respondent-Appellee.

                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, South Bend Division.
           No. 3:02cv0778 AS—Allen Sharp, Judge.
                         ____________
   ARGUED JUNE 16, 2004—DECIDED JANUARY 31, 2005
                    ____________




  Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. William Sanders was convicted
of murder and attempted murder by an Indiana jury and
sentenced to consecutive terms of 40 and 25 years’ impris-
onment, respectively. After his conviction and sentence were
affirmed on direct appeal, Sanders filed a post-conviction
petition in state court, claiming that the jury instructions
did not correctly state the burden of proof for murder, at-
tempted murder, voluntary manslaughter, and attempted
voluntary manslaughter, and that his appellate counsel was
ineffective for not challenging on direct appeal the trial
2                                                No. 03-2622

court’s refusal to submit a jury instruction that would have
correctly stated the burden of proof. Sanders’s petition was
denied by the trial court and the state appellate court, and
the Supreme Court of Indiana denied his petition to
transfer.
  Sanders then filed a petition for a writ of habeas corpus
in federal court pursuant to 28 U.S.C. § 2254, arguing that
his due process rights were violated when the jury instruc-
tions did not correctly state the burden of proof and that his
appellate counsel was ineffective for not challenging the
trial court’s refusal to submit a jury instruction that would
have correctly stated the burden of proof. The district court
denied Sanders’s petition, and he now appeals that decision.
We reverse.


                      I. Background
  At the heart of Sanders’s appeal is his argument that the
jury instructions in his trial failed to properly identify the
prosecution’s burden of proving the absence of sudden heat
in order to convict him of murder and attempted murder. In
Indiana the only difference between murder and voluntary
manslaughter is the presence of sudden heat, which Indiana
defines as “anger, rage, resentment, or terror sufficient to
obscure the reason of an ordinary man; it prevents delibera-
tion and premeditation, excludes malice, and renders a
person incapable of cool reflection.” McBroom v. State, 530
N.E.2d 725, 728 (Ind. 1988). If a defendant charged with
murder produces “any appreciable evidence” that he or she
committed the crime under sudden heat, the trial court
must give a voluntary manslaughter instruction, Roark
v. State, 573 N.E.2d 881, 882 (Ind. 1991), and the burden
shifts to the prosecution to prove the absence of sudden heat
beyond a reasonable doubt in order to obtain a conviction
for murder, see McBroom, 530 N.E.2d at 728.
No. 03-2622                                                3

A. Factual Background
  The facts come from the record compiled in the state
court. Sanders was charged with the murder of his son and
the attempted murder of his girlfriend. On March 6, 1990,
Sanders and his girlfriend, Sharon Pratchett, took their sick
son to the hospital. While at the hospital, Sanders and
Pratchett began to argue and the argument continued as
they drove back to Pratchett’s house. At trial, Pratchett and
Sanders told conflicting descriptions of the argument.
Pratchett testified that the argument began when Sanders
accused her of embarrassing him. Although Pratchett’s tes-
timony is not clear, it appears that Sanders was jealous
because Pratchett and another man looked at each other in
the hospital waiting room. According to Pratchett, as
Sanders’s rage escalated, he became violent, hitting her in
the face, grabbing her by the hair, and threatening to kill
her. Pratchett said she feared for her life, so she grabbed
her son and jumped from the moving car. Sanders testified
that the argument began when he told Pratchett that he
was going to leave her. Sanders said that Pratchett had
always told him that he could not leave her and be involved
in his son’s life; but that during the argument he insisted
he was taking his son. Sanders said that Pratchett then
threw their son out the window, so he began hitting her,
and that was the last thing he remembered. What is not in
dispute is that Sanders turned the car around, crossed over
into oncoming traffic where Pratchett and their son were
lying, and hit them both with the car. Pratchett was injured
and their son was killed.


B. Jury Instructions
  After the evidence was presented to the jury, the trial
court instructed the jury as to the elements of murder and
attempted murder as well as the lesser-included offenses of
voluntary manslaughter and attempted voluntary man-
4                                               No. 03-2622

slaughter. Indiana law requires the prosecution to prove the
absence of sudden heat to obtain a murder or attempted
murder conviction when the defendant has asserted the
issue. Palmer v. State, 425 N.E.2d 640, 644 (Ind. 1981).
Nevertheless, the murder and attempted murder jury in-
structions did not mention sudden heat. Instead, the jury
instructions for voluntary manslaughter and attempted
voluntary manslaughter stated that the jury could convict
Sanders only if the State proved beyond a reasonable doubt
that he was “acting under sudden heat.” In other words, the
burden to prove the existence, not the absence, of sudden
heat was allocated to the State.
  Sanders’s counsel proposed a jury instruction (“Proposed
Instruction Two”) that would have properly placed the
burden of proof on the State:
    You are instructed that in order to find the defen-
    dant guilty of the offense of murder or attempted
    murder, you must find that the state has proven the
    absence of sudden heat beyond a reasonable doubt.
  Sanders’s counsel, Scott King, and the trial judge dis-
cussed the propriety of this instruction:
    MR. KING: One of the—I wanted to tender one
    basically allocating the burden on the sudden heat.
    Nowhere in there in the proposed instructions is the
    jury instructed the State must prove the absence of
    sudden heat beyond a reasonable doubt. It’s rather
    laid out as an element they must prove for the
    offense of voluntary or attempted voluntary man-
    slaughter. The case law is that it is a mitigating
    circumstance.
    TRIAL COURT: It’s an interesting conflict in the
    case law. First they say it’s an element of the of-
    fense, and then in another case, they say it’s merely
    a mitigating factor, and the State is not under an
    obligation to prove it is an element; and, of course,
No. 03-2622                                                       5

    I try to follow everybody up there in the Third
    District, Fourth District in the Supreme Court. I do
    not believe that the burden is upon the State. This
    is my best guess today, it’s my best guess knowing
    the authorities on both sides, to resolve the conflict
    that the State does not have the burden of disprov-
    ing sudden heat.


C. Sanders’s Post-Conviction Proceedings
  On direct appeal, Sanders’s counsel, Scott King, did not
challenge the trial court’s failure to properly instruct the
jury. Sanders filed a post-conviction petition raising, among
other issues, the trial court’s failure to give Proposed
Instruction Two, the incorrect burden of proof stated in the
manslaughter instructions, and his appellate counsel’s
ineffectiveness for failing to argue both issues on direct
appeal.1 The trial court held an evidentiary hearing where
King testified that he could not remember why he did not
include an argument challenging the jury instructions’
misstatement of the burden of proof for sudden heat.
  The trial court analyzed Sanders’s claims under the stand-
ard of fundamental error, which Indiana defines as “when
errors are so blatant and serious that to ignore them would
constitute a denial of fundamental due process.” The trial
court acknowledged that the manslaughter instructions
tendered to the jury were erroneous because the instruc-
tions incorrectly listed the presence of sudden heat as an
element of voluntary manslaughter and attempted volun-


1
  Sanders’s petition was initially denied on the basis of laches and
the appellate court affirmed, but the Supreme Court of Indiana
reversed that decision and remanded the case to the trial court.
All subsequent references to the state court’s determinations of
Sanders’s post-conviction petition will refer to the decisions on
remand.
6                                               No. 03-2622

tary manslaughter. However, the trial court, relying on
Indiana state law precedent, found that the error was
harmless because the instruction told the jury that “[t]he
existence of sudden heat is a mitigating factor that reduces
what otherwise would be murder under this chapter to vol-
untary manslaughter.” The court found that Proposed
Instruction Two, allocating the burden to prove absence of
sudden heat to the State as an element of murder, was an
incorrect statement of the law, so the trial court correctly
excluded it. Finally, despite its explicit statement that the
instruction was erroneous, the court held that Sanders’s
counsel could not have been ineffective because “the jury
was adequately instructed on voluntary manslaughter, and
thus, the defendant was not prejudiced by counsel’s faulty
instruction.”
  Sanders appealed the denial of his post-conviction peti-
tion to the Court of Appeals of Indiana. The appellate court
agreed with the trial court’s finding that the voluntary
manslaughter instructions were erroneous, but found the
error harmless because the jury instructions “also informed
the jury that sudden heat is a mitigating factor.” Therefore,
the court found that “the trial court did not abuse its
discretion in refusing to give the trial counsel’s tendered
instruction because the instructions were correct and ade-
quately instructed the jury on voluntary manslaughter.”
The appellate court also agreed that Sanders’s appellate
counsel was not ineffective since there could be no prejudice
because the jury instructions, when read as a whole, did
“not constitute fundamental error.” The Supreme Court of
Indiana denied review.


                      II. Discussion
  We review the district court’s factual findings for clear
error and legal conclusions de novo. Harding v. Walls, 300
F.3d 824, 827 (7th Cir. 2002). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), to obtain
No. 03-2622                                                 7

habeas corpus relief, a petitioner must establish that the
proceedings in state court resulted in a decision (1) “that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). The relevant decision for purposes of this assess-
ment is the decision of the last state court to rule on the
merits of the petitioner’s claim. See McFowler v. Jaimet,
349 F.3d 436, 446 (7th Cir. 2003).


A. Due Process Claim
  Sanders first argues that his due process rights were vio-
lated when the state court failed to instruct the jury that
the State had to prove the absence of sudden heat beyond
a reasonable doubt before it could convict him of murder or
attempted murder. Respondent argues that Sanders has
procedurally defaulted this claim because, on review of the
denial of the post-conviction petition, the Court of Appeals
of Indiana found the issue waived.


  1. Procedural Default: Independent and Adequate
     State Law Grounds
   We will not consider a petitioner’s claim under federal law
if we determine that “the state court decision rests on a
state procedural ground that is independent of the federal
question and adequate to support the judgment.” Page v.
Frank, 343 F.3d 901, 905 (7th Cir. 2003). The Indiana ap-
pellate court analyzed Sanders’s claim under the fundamen-
tal error standard, which “permits a reviewing court to
consider the merits of an improperly raised error if the
reviewing court finds that the error was so prejudicial to the
rights of the appellant that he could not have had a fair
8                                                 No. 03-2622

trial.” However, under Harris v. Reed, 489 U.S. 255, 263-65
(1989), only an explicit invocation of a state procedural bar
blocks federal consideration of an issue.
  Here, the language in the state court’s opinion is not ex-
plicit. The Court of Appeals of Indiana recited that “[i]f an
issue was available on direct appeal but not litigated, it is
waived.” But instead of following that observation with a
conclusion such as “and Sanders’ claims are waived under
that standard,” the court immediately proceeded to address
and decide the merits. See, e.g., Moore v. Bryant, 295 F.3d
771, 774-75 (7th Cir. 2002). Notably, the appellate court
applied waiver to Sanders’s claim that the trial court failed
to properly instruct the jury that the State had to prove
that Sanders had the specific intent to kill to convict him of
attempted murder, but failed to apply the procedural bar to
the rest of Sanders’s claims.
  We have held that if the decision of the state court “fairly
appears to rest primarily on the resolution of those claims,
or to be interwoven with those claims, and does not clearly
and expressly rely on the procedural default, we may
conclude that there is no independent and adequate state
ground and proceed to hear the federal claims.” Page, 343
F.3d at 907. Here, the Indiana appellate court never applied
the doctrine of waiver to the claims Sanders raised in his
habeas corpus petition and the court concluded that
Sanders’s claims failed on the merits. Because the appellate
court’s discussion of waiver is intertwined with its merits
analysis of Sanders’s claims, the state court’s decision does
not rest on an independent and adequate state law ground.
See Harris, 489 U.S. at 266; Moore, 295 F.3d at 774-75.
   In any event, a procedural default can be overcome if a
petitioner can show cause and prejudice for the default, Lee
v. Davis, 328 F.3d 896, 900 (7th Cir. 2003), and “attorney error
that constitutes ineffective assistance of counsel is cause to
set aside a procedural default,” Franklin v. Gilmore, 188
No. 03-2622                                                 9

F.3d 877, 883 (7th Cir. 1999). Any default of Sanders’s due
process claim was caused by his appellate counsel’s failure
to raise the issue on direct appeal, and, as we discuss in
Section II-B of this order, Sanders’s counsel was constitu-
tionally ineffective for not challenging the trial court’s re-
fusal to properly instruct the jury that the State bears the
burden to prove the absence of sudden heat to obtain a
murder or attempted murder conviction.


  2. Procedural Default: Fair Presentment
  Next, the Respondent argues that Sanders procedurally
defaulted his claim because he solely relied on Indiana state
law, which does not implicate a cognizable federal claim upon
which habeas relief could be granted. Petitioners are
required to “fairly present their federal claims to the state
courts in order to give the State the opportunity to pass
upon and correct alleged violations of its prisoners’ federal
rights.” Hough v. Anderson, 272 F.3d 878, 892 (7th Cir.
2001) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).
  We have held that fair presentment requires a petitioner
to put forward operative facts and controlling legal princi-
ples. Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004).
Whether he has done so depends on several factors, includ-
ing: “(1) whether the petitioner relied on federal cases that
engage in constitutional analysis; (2) whether the petitioner
relied on state cases which apply a constitutional analysis
to similar facts; (3) whether the petitioner framed the claim
in terms so particular as to call to mind a specific constitu-
tional right; and (4) whether the petitioner alleged a
pattern of facts that is well within the mainstream of
constitutional litigation.” Id.
  In Sanders’s appeal to the Court of Appeals of Indiana, he
alleged a “due process” violation and argued that “if the jury
makes its decision without knowing that to convict on
murder it must find beyond a reasonable doubt that sudden
10                                              No. 03-2622

heat was absent then in effect there is no jury finding on
the question of the presence or absence of sudden heat.” To
support his argument, Sanders cited Sullivan v. Louisiana,
508 U.S. 275, 277-78 (1993), in which the Supreme Court
held that it is a due process violation if the court offers a
defective jury instruction on reasonable doubt.
  Although Sanders is not challenging the jury instruction
defining reasonable doubt, it is clear that he was attempt-
ing to raise a constitutional complaint about the failure of
the jury instructions to require the jury to find the absence
of sudden heat beyond a reasonable doubt before convicting
him of murder and attempted murder. See Sweeney, 361
F.3d at 332 (finding that petitioner had fairly presented a
federal ineffective assistance of counsel claim when he cited
the Sixth Amendment and Strickland v. Washington, 466
U.S. 668 (1984) to the state court). Because Sanders’s brief
to the state appellate court applied the Supreme Court’s
due process analysis to his jury instruction challenge and
provided a citation to a case that would have “alerted the
court to the alleged federal nature of the claim,” he fairly
presented his federal constitutional claim to the Indiana
state courts. See Baldwin v. Reese, 541 U.S. 27, 124 S. Ct.
1347, 1351 (2004); see Chambers v. McCaughtry, 264 F.3d
732, 738 (7th Cir. 2001).


  3. Merits of Sanders’s Due Process Claim
  With the waiver and fair presentment issues resolved, we
now address the merits of Sanders’s due process claim.
Sanders contends that the trial court’s refusal to instruct
the jury as to the State’s burden of proving the element of
the absence of sudden heat violates his federal due process
rights because the jury could have convicted him of murder
and attempted murder without finding that the State proved
each element of the crime beyond a reasonable doubt.
Sanders also challenges the erroneous manslaughter in-
No. 03-2622                                              11

structions that included the presence of sudden heat as an
element.
  Indiana law, currently and at the time of Sanders’s trial,
requires the prosecution to prove the absence of sudden
heat to convict a defendant of murder or attempted murder
once the defendant has introduced some evidence that he or
she committed the crime under sudden heat. McBroom, 530
N.E.2d at 728. Three years before Sanders’s trial, the
Supreme Court of Indiana held that if the jury instruction
on murder did not include an element requiring the pros-
ecution to prove the absence of sudden heat and the trial
court refused a proposed jury instruction that explains that
the State must negate the presence of sudden heat beyond
a reasonable doubt, then the trial court committed revers-
ible error, necessitating a new trial. Harrington v. State,
516 N.E.2d 65, 66 (Ind. 1987). The Indiana courts have held
that the “action of the trial court in refusing the tendered
instruction left the jury without any instruction as to who
bore the burden of proof concerning sudden heat or the ab-
sence thereof.” Joshua v. State, 553 N.E.2d 1202, 1203 (Ind.
1990). Without the proper instructions, the jury “may have
believed [the defendant] had to prove he acted in sudden
heat,” rather than that “the State had to negate its exis-
tence.” Harrington, 516 N.E.2d at 66.
  In Sanders’s case, the Indiana appellate court held that
any error in the manslaughter instruction was rendered
harmless by the instruction that “sudden heat is a mitigat-
ing circumstance that reduces what otherwise would be mur-
der . . . to voluntary manslaughter.” The appellate court’s
analysis was incomplete, though, because it did not address
Sanders’s argument that without Proposed Instruction Two
the jury would have no reason to know that the absence of
sudden heat was an element of murder and attempted mur-
der that the State was required to prove beyond a reason-
able doubt.
12                                              No. 03-2622

  The Supreme Court of the United States has held that
“the Due Process clause protects the accused against con-
viction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he
is charged,” In re Winship, 397 U.S. 358, 364 (1970), and
“requires the prosecution to prove beyond a reasonable
doubt the absence of the heat of passion on sudden provoca-
tion when the issue is properly presented in a homicide
case,” Mullaney v. Wilbur, 421 U.S. 684, 704 (1975). We
have explained that “the complete failure to give any jury
instruction on an essential element of the offense charged,
under circumstances indicating that the jury was not
otherwise informed of the necessity of proof of the element,
is a violation of due process.” Cole v. Young, 817 F.2d 412,
423 (7th Cir. 1987).
  Here, the jury instructions do not contain any statement
that properly places the burden of proof on the State for
showing the absence of sudden heat to gain a murder con-
viction. Rather, the only time the jury instructions mention
the burden of proof for sudden heat is in the manslaughter
instructions, where they erroneously require the State to
prove the presence of sudden heat. Without Proposed
Instruction Two, the jury was never informed of each of the
required elements of the government’s proof for murder and
attempted murder, and if the jury was not required to find
Sanders guilty beyond a reasonable doubt on all the ele-
ments of murder and attempted murder, he did not receive
the protections of federal due process. The Indiana appellate
court’s reliance on the manslaughter instructions’ mitigation
language to correct the erroneous instructions was unrea-
sonable because advising the jury that sudden heat is a
mitigating factor does nothing to inform it that the absence
of sudden heat is an element of murder or attempted
murder and that it is the prosecution that bears the burden
of proof.
No. 03-2622                                                13

  The Respondent argues that the Indiana appellate court
made a reasonable determination that the erroneous instruc-
tions, when read as a whole with the other instructions,
fully apprised the jury that under Indiana law, sudden heat
is a factor that could reduce murder to manslaughter.
Instructing the jury that sudden heat is a mitigating factor
did not inform them that it was something that the State
had to disprove, rather they were left “ignorant of which
side bore the burden of proof.” Harrington, 516 N.E.2d at 66.
It is just as reasonable for someone to assume that acting
under sudden heat is like the affirmative defense of insan-
ity, where the burden of proof is on the defendant. See
Thompson v. State, 804 N.E.2d 1146, 1148 (Ind. 2004). The
jury instructions not only failed to properly state the burden
of proof, but affirmatively misstated it when the man-
slaughter instructions included the element of proving the
existence of sudden heat.
   The Respondent also argues that any error in the jury
instructions was harmless because Sanders was not entitled
to the manslaughter instructions. However, the Respondent
did not make this argument in the district court, so it is
waived. Jenkins v. Nelson, 157 F.3d 485, 494 n.1 (7th Cir.
1998). While we can overlook the Respondent’s failure to
argue harmless error, we generally do so only when the
“harmlessness of the error or errors found is certain” and “a
reversal would result in protracted, costly, and ultimately
futile proceedings in the district court.” United States v.
Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991). Even if the
Respondent had not waived its harmlessness argument, the
argument would fail because the jury heard testimony that
Sanders was provoked into a sudden rage when Pratchett
flirted with another and, if you believe Sanders’s testimony,
when Pratchett threw their son out the car window.
Compare Baird v. State, 604 N.E.2d 1170, 1178 (Ind. 1992)
(bank foreclosing on family farm was not sufficient provoca-
tion to warrant a jury instruction on sudden heat in defen-
14                                              No. 03-2622

dant’s murder of his wife); Gregory v. State, 540 N.E.2d 585,
593 (Ind. 1989) (holding that jury could reasonably have
rejected defendant’s claim of sudden heat when he had
threatened to kill the victim three weeks earlier); with
Jimmerson v. State, 751 N.E.2d 719, 725 (Ind. App. Ct.
2001) (affirming voluntary manslaughter conviction because
jury reasonably found defendant was acting under sudden
heat after he was forced to give victim money 20 minutes
before he confronted victim and shot him); Callis v. State,
684 N.E.2d 233, 240 (Ind. 1997) (affirming voluntary
manslaughter conviction because jury reasonably found
defendant was acting under sudden heat when he shot his
girlfriend after she threatened suicide and they quarreled
about the state of their relationship). Because a defendant
is entitled to a voluntary manslaughter instruction if he
presents any appreciable evidence of sudden heat, the trial
court’s failure to instruct the jury as to the State’s burden
was not harmless error.
  Because the jury was never instructed that the absence of
sudden heat was an element of murder and attempted
murder that the State had to prove beyond a reasonable
doubt, Sanders has established a violation of his federal due
process rights. The Indiana appellate court’s determination
that the jury instructions as a whole correctly apprised the
jury of all the elements of the crimes was an unreasonable
determination because the jury was never informed that the
absence of sudden heat is an element of murder and
attempted murder on which the State bears the burden of
proof and, in fact, was incorrectly instructed that the State
had to prove beyond a reasonable doubt the presence of
sudden heat to obtain a voluntary manslaughter conviction.
Accordingly, we reverse the district court’s denial of
Sanders’s petition on the grounds of a federal due process
violation.
B. Ineffective Assistance of Counsel
  Sanders next argues that the Indiana state courts un-
reasonably determined that his appellate counsel was not
No. 03-2622                                                 15

ineffective for failing to argue on direct appeal that the trial
court erred by refusing to instruct the jury that the State
must prove the absence of sudden heat beyond a reasonable
doubt to prove murder and attempted murder. Sanders also
claims that his appellate counsel was ineffective for failing
to challenge the trial court’s instruction making sudden
heat an element of voluntary manslaughter and attempted
voluntary manslaughter and requiring the State to prove its
presence beyond a reasonable doubt. Sanders argues that
Indiana case law would have required reversal and a new
trial had these issues been raised on direct appeal.
  First, the Respondent correctly notes that Sanders’s chal-
lenge to counsel’s failure to challenge the voluntary man-
slaughter and attempted voluntary manslaughter instruc-
tions were not raised in the district court. Because we will
not consider issues raised for the first time on appeal, see
Perry v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000),
Sanders waived his challenge to the manslaughter instruc-
tions. Therefore, the only basis for ineffective assistance of
counsel properly before us is whether Sanders’s appellate
counsel was ineffective for not challenging the trial court’s
refusal to tender Proposed Instruction Two.


  1. Standard for Ineffective Assistance of Counsel
  The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to effective as-
sistance of counsel. Strickland v. Washington, 466 U.S. 668,
686 (1984). A successful claim of ineffective assistance of
counsel under Strickland requires the petitioner to make
two showings. First, the petitioner must show that counsel’s
performance fell below an objective standard of reasonable-
ness as determined by prevailing professional norms. Id. at
687-88. Second, the petitioner must show that the deficient
performance of counsel prejudiced his defense. Id. at 687.
Prejudice will be found when there is a reasonable probabil-
16                                               No. 03-2622

ity that, but for the deficient performance of counsel, the
outcome of the proceeding would have been different. Id. at
694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the proceedings. Id.


  2. State Court Determination
  The district court adopted the determination of the Indiana
state courts on Sanders’s ineffective assistance claim with-
out much explanation. The last Indiana court to rule on the
merits of Sanders’s claim was the post-conviction trial court,
so this court reviews its determination. See McFowler, 349
F.3d at 446. The trial court found, without explanation or
citation, that “Defendant’s Tendered Instruction No. 2 was
a misstatement of the law and the trial court did not
commit error by refusing to give the instruction to the jury.”
The trial court concluded that “counsel’s offer of a [sic]
inaccurate instruction . . . does not constitute ineffective
assistance of counsel because the jury was adequately
instructed on voluntary manslaughter, and thus, the
defendant was not prejudiced by counsel’s faulty instruc-
tions.”


  3. Appellate Counsel’s Performance was Prejudi
     cial
  Under 28 U.S.C. § 2254(d)(2), habeas corpus relief may be
granted if the petitioner shows that, despite identifying the
correct rule of law, the state court unreasonably applied it
to the facts of the case. Williams v. Taylor, 529 U.S. 362,
385 (2000). Under § 2254(e)(1), habeas corpus relief may be
had where the petitioner can show by clear and convincing
evidence that the state court’s factual determinations were
unreasonable.
  First, the state court found, without explanation, that
Sanders’s Proposed Instruction Two was an incorrect state-
No. 03-2622                                                17

ment of the law. However, both Indiana law, Palmer, 425
N.E.2d at 644, and federal law, Mullaney, 421 U.S. at 704,
require the prosecution to prove the absence of sudden heat
once the issue is raised by evidence in the record. Sanders’s
Proposed Instruction Two correctly stated this proposition,
and nowhere else in the jury instructions was the jury
informed that the prosecution bore the burden of proving
the absence of sudden heat to obtain a conviction for
murder or attempted murder. Thus, the state court’s finding
that Sanders’s Proposed Instruction Two was a misstate-
ment of the law is an unreasonable determination of the
facts, which does not warrant any deference from this court.
See Moore v. Knight, 368 F.3d 936, 942 (7th Cir. 2004).
  Second, although the post-conviction trial court identified
the proper standard for evaluating Sanders’s ineffective
assistance of counsel claim, it unreasonably applied the law
to the facts of this case. Indiana law requires reversal and
a new trial if the trial court rejects a proposed jury instruc-
tion that allocates the burden of proving the absence of
sudden heat for a murder or attempted murder conviction.
Harrington, 516 N.E.2d at 66 (finding that without the
burden-of-proof instruction, the jury “resolved the issue but
did so ignorant of which side bore the burden of proof”). If
Sanders’s counsel had raised this issue on direct appeal, the
appellate court would have been bound by law to grant him
a new trial. Because “the issue not raised may have re-
sulted in a reversal of the conviction or an order for a new
trial,” Lee, 328 F.3d at 901, Sanders has established that
his counsel’s failure to challenge the Proposed Instruction
Two was prejudicial.


  4. Appellate Counsel’s Performance was Deficient
  But Sanders must also establish that his counsel’s
performance fell below an objective standard of reasonable-
ness to satisfy the requirements of the Strickland test for
18                                                No. 03-2622

showing his appellate counsel was constitutionally ineffec-
tive. The failure of appellate counsel to raise an issue on
appeal requires the court to compare the issue not raised in
relation to the issues that were raised; if the issue that was
not raised is “both obvious and clearly stronger” than the
issues raised, the appellate counsel’s failure to raise the
neglected issue is objectively deficient. Lee, 328 F.3d at 900-
01.
  On direct appeal, Sanders’s counsel raised three issues:
(1) the trial court erred in instructing the jury as to the
doctrine of transferred intent; (2) the trial court erred in
admitting evidence of Sanders’s prior bad acts; and (3) the
trial court abused its discretion by sentencing Sanders to
serve consecutive prison terms. Sanders’s challenge to the
trial court’s imposition of consecutive sentences is clearly
weaker than his challenge to the trial court’s rejection of
Proposed Instruction Two. In Indiana, a trial court has wide
discretion to impose consecutive sentences and an appellate
court will reverse the imposition of consecutive sentences
only when “no reasonable person could find such sentence
appropriate to the particular offense and offender for which
such sentence was imposed.” Steele v. State, 569 N.E.2d
652, 653 (Ind. 1991). Furthermore, while the two other
issues counsel raised are not as weak as the consecutive
sentence challenge, neither argument relied on controlling
Indiana precedent that would have warranted a new trial,
unlike the trial court’s failure to properly instruct the jury
on sudden heat. Therefore, we find that Sanders’s counsel
was ineffective for not raising a challenge to the trial court’s
rejection of the Proposed Instruction Two because it was an
obvious and stronger argument than the arguments he
made, and there is a reasonable probability that had he
made the argument, the appellate court would have ordered
a new trial. See Lee, 328 F.3d at 901-02; Winters v. Miller,
274 F.3d 1161, 1167-68 (7th Cir. 2001).
No. 03-2622                                            19

                   III. Conclusion
  Because Sanders’s federal rights to due process and ef-
fective assistance of appellate counsel were violated, we
REVERSE the district court’s denial of Sanders’s habeas
corpus petition and REMAND with directions to grant the
writ unless the State elects to retry Sanders.



A true Copy:
      Teste:

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




                  USCA-02-C-0072—1-31-05
