In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2314

Jamaljah Aliwoli,

Petitioner-Appellant,

v.

Lamark Carter, Warden,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 2283--Suzanne B. Conlon, Judge.


Argued June 9, 2000--Decided August 29, 2000



  Before Bauer, Posner, and Rovner, Circuit Judges.

  Bauer, Circuit Judge. After being stopped for a
routine traffic violation, Jamaljah Aliwoli
pulled a gun from his jacket and shot three
Chicago police officers. Fortunately, all three
police officers survived the shooting. At
Aliwoli’s trial on three counts of attempted
first degree murder, Aliwoli claimed that he was
not guilty by reason of insanity. To substantiate
his insanity defense, Aliwoli presented three
expert witnesses who testified that Aliwoli
suffered from a persecutorial delusional disorder
that caused him to believe that police officers
were members of a conspiracy to harass him. The
experts testified that, because of his delusional
disorder, Aliwoli was unable to conform his
conduct to the requirements of law when he shot
the police officers.

  The jury rejected Aliwoli’s insanity defense and
found him guilty but mentally ill. The trial
judge sentenced Aliwoli to prison terms of 60
years, 30 years, and 30 years on the three
convictions, with each sentence to run
consecutively. Aliwoli appealed to the Illinois
Appellate Court and that court affirmed his
convictions and sentences. See People v. Aliwoli,
606 N.E.2d 347 (Ill. App. Ct. 1992). Aliwoli then
sought leave to appeal to the Illinois Supreme
Court, but that request was denied. See People v.
Aliwoli, 610 N.E.2d 1267 (Ill. 1993). Aliwoli
never petitioned for post-conviction relief in
the Illinois courts.

  Having exhausted his state court options,
Aliwoli filed a petition for a writ of habeas
corpus under 28 U.S.C. sec. 2254 and the district
court denied that petition. See United States ex
rel. Aliwoli v. Peters, No. 96 C 2283, 1996 WL
666692 (N.D. Ill. Nov. 14, 1996). Aliwoli
appealed the ruling to this court, arguing that
the district court’s decision should be reversed
because the district judge had erroneously
applied the standards of sec. 2254 as amended by
the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), Pub. L. 104-132. We agreed
with Aliwoli’s argument and held that, since
Aliwoli filed his petition before the effective
date of the AEDPA, the district court should have
considered his claims under the pre-AEDPA
standards. See Aliwoli v. Gilmore, 127 F.3d 632,
633 (7th Cir. 1997). We remanded the case to the
district court to consider Aliwoli’s petition
under the pre-AEDPA standards. We did, however,
affirm the district court’s determination that
Aliwoli procedurally defaulted his claim that the
prosecutor made improper remarks during rebuttal
argument.

  On remand, the district court issued a minute
order denying Aliwoli’s petition for a writ of
habeas corpus. Applying the pre-AEDPA standards,
the district judge found no constitutional error
in his trial. Aliwoli now challenges the district
court’s ruling under the pre-AEDPA standards.

  Under the habeas statute in effect before the
AEDPA, a federal court exercising habeas corpus
jurisdiction could grant relief to a petitioner
in custody pursuant to the judgment of a state
court only if his custody violated federal
statutory or constitutional law. Milone v. Camp,
22 F.3d 693, 698 (7th Cir. 1994); Escobar v.
O’Leary, 943 F.2d 711, 720 (7th Cir. 1991). We
review the district court’s conclusions of law de
novo, Quinn v. Neal, 998 F.2d 526, 528 (7th Cir.
1993), and presume the facts as found by the
state courts to be correct. Brewer v. Aiken, 935
F.2d 850, 855 (7th Cir. 1991).
  Aliwoli first contends that he was deprived of
a fair trial when, during closing argument, the
prosecutor said "what they are trying to do
ladies and gentlemen is flimflam you so that he
can go laughing out that door of this
courtroom."/1 According to Aliwoli, this
statement was improper because the prosecutor was
implicitly arguing that a verdict of not guilty
by reason of insanity would result in Aliwoli’s
total release from custody. Aliwoli asserts that
the prosecutor’s remark unfairly prevented the
jury from finding him not guilty by reason of
insanity and therefore deprived him of due
process.

  When scrutinizing a prosecutorial statement made
during closing argument, we first analyze the
remark in isolation to determine whether it was
improper. See United States v. Miller, 199 F.3d
416, 422 (7th Cir. 1999). If the prosecutor’s
statement was inappropriate "[t]he relevant
question is whether the prosecutors’ comments ’so
infected the trial with unfairness as to make the
resulting conviction a denial of due process.’"
Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)); see also United States v. Cusimano,
148 F.3d 824, 831 (7th Cir. 1998). When assessing
whether a prosecutor’s statement deprived a
defendant of a fair trial, we look to five
factors: (1) the nature and seriousness of the
prosecutorial misconduct; (2) whether the
prosecutor’s statement was invited by the conduct
of defense counsel; (3) whether the trial court’s
instructions to the jury were adequate; (4)
whether the defense was able to counter the
improper arguments through rebuttal; and (5) the
weight of the evidence against the defendant.
United States v. Butler, 71 F.3d 243, 254 (1995).

  When viewed in isolation, the prosecutor’s
remark was inappropriate. The prosecutor
suggested that a not guilty by reason of insanity
verdict would allow Aliwoli to "go laughing out
that door of this courtroom." We have previously
held that "the practice of informing juries about
the sentencing consequences of their verdicts is
strongly disfavored." United States v. Lewis, 110
F.3d 417, 422 (7th Cir. 1997). As the Supreme
Court explained in Shannon v. United States, 512
U.S. 573, 579 (1994), courts should withhold
information about punishment from the jury
because the jury’s role is typically restricted
to deciding whether the defendant is guilty of
the crime charged. Id. Since the jury only
determines whether the defendant is guilty or not
guilty, "providing jurors sentencing information
invites them to ponder matters that are not
within their province, distracts them from their
factfinding responsibilities, and creates a
strong possibility of confusion." Id.; see also
Evalt v. United States, 359 F.2d 534, 545-46 (9th
Cir. 1966). Here, the prosecutor’s comment was
inappropriate because it raised the issue of the
punishment (or lack thereof) that Aliwoli would
receive by suggesting that Aliwoli would "go
laughing out that door" if the jury found him not
guilty by reason of insanity.

  Even though we agree that the prosecutor’s
remark was inappropriate, we must still determine
whether the comment caused sufficient prejudice
so as to deprive Aliwoli of due process. Applying
the relevant factors, we cannot say that Aliwoli
was deprived of a fair trial. The statement was
improper but not "highly inflammatory." See
Cunningham, 54 F.3d at 301. Moreover, the trial
judge firmly and correctly instructed the jury
that "you are not to concern yourselves with
possible punishment or sentence for the offense
charged during your deliberations." The trial
judge also advised the jury that "neither opening
statements nor closing arguments are evidence and
any statement or argument made by the attorneys
which is not based on the evidence should be
disregarded."

  And, importantly, Aliwoli’s attorney had an
opportunity to refute the prosecutor’s suggestion
that a not guilty by reason of insanity verdict
would allow Aliwoli to go free. Specifically,
Aliwoli’s attorney argued to the jury, "don’t be
misled by anyone telling you that he will walk
out of that door if you find him not guilty by
reason of insanity. That is not true." Aliwoli’s
attorney also told the jury that "these police
officers as they sit right before you won’t be in
danger of this man ever again."

  Finally, the weight of the evidence against
Aliwoli was very convincing. Aliwoli admitted
shooting the three police officers, but raised
his mental state as a defense to the crime.
Aliwoli had experts testify in support of his
defense; however, there were several facts in the
record indicating that Aliwoli acted calmly and
deliberately. The jury could have reasonably
inferred from these facts that Aliwoli was not
insane when he committed this crime. Viewing
Aliwoli’s trial as a whole, and considering the
relevant factors, we hold that the prosecutor’s
comments did not deprive Aliwoli of a fair trial.
The district court correctly ruled that there was
no constitutional violation when it rejected this
argument. See Cunningham, 54 F.3d at 300-01;
United States v. Greiser, 502 F.2d 1295, 1297-98
(9th Cir. 1974); United States v. Tankersley, 492
F.2d 962, 968 (7th Cir. 1974).

  Aliwoli next claims that he was denied due
process during his trial because the prosecutor
questioned witnesses about his religious beliefs
as a black Muslim. The prosecution apparently
sought to establish that Aliwoli’s membership in
the black Muslim faith gave him a motive to shoot
the three police officers. For example, the State
cross-examined two of Aliwoli’s expert witnesses
by asking whether Aliwoli’s black Muslim faith
encompassed an anti-authority stance. The
prosecutor also asked whether black Muslims have
a negative view of the police and inquired about
a black Muslim newspaper during the late 1960’s
and early 1970’s that referred to police officers
as "pigs" and white people as "white devils." The
prosecutor queried whether one expert was
familiar with a 1984 article in American
Psychologist Publication that suggested that many
African-Americans consider white people as
potential enemies. Finally, the prosecutor also
asked one expert about a statement in her psycho-
social history of Aliwoli where she wrote,
"although a Muslim, he did not seem to be
excessively hostile towards whites." Aliwoli
insists that these references to his race and
religion deprived him of a fair trial.

  "There is no place in a criminal prosecution
for gratuitous references to race . . .
Elementary concepts of equal protection and due
process alike forbid a prosecutor to seek to
procure a verdict on the basis of racial
animosity." Smith v. Farley, 59 F.3d 659, 663
(7th Cir. 1995). The Constitution "prohibits a
prosecutor from making race-conscious arguments
since it draws the jury’s attention to a
characteristic that the Constitution generally
demands that the jury ignore." United States v.
Hernandez, 865 F.2d 925, 928 (7th Cir. 1989).
Like any charge of prosecutorial misconduct, we
first view the statements to determine whether
they were improper. If they were inappropriate,
we view the record as a whole and consider
whether they deprived the defendant of a fair
trial. Id. at 927.

  We find no constitutional error in the
prosecutor’s questions. As a general rule, a
racial remark is improper if it is "intentionally
injected into volatile proceedings where the
prosecutor had targeted the defendant’s ethnic
origin for emphasis in an attempt to appeal to
the jury’s prejudices." Hernandez, 865 F.2d at
928. It is apparent from the context of the
prosecutor’s questions that the references to
Aliwoli’s membership in the black Muslim faith
were only meant to show that Aliwoli had a motive
for shooting the police officers. In other words,
the questions were clearly intended to rebut
Aliwoli’s insanity defense. Because the questions
about Aliwoli’s beliefs as a black Muslim focused
solely on his state of mind and potential motive
for the shootings, they were not improper.
Although the questions mentioned Aliwoli’s race
and religion, none of them can be reasonably
viewed as attempting to arouse jury prejudice
towards blacks or Muslims. In short, there is no
evidence that these comments were intended to
play upon the prejudices of the jury. See
Hernandez, 865 F.2d at 928.

  In any event, looking at the record as a whole,
the questions could not have impacted the outcome
of Aliwoli’s trial. First and foremost, every
witness the prosecutor asked about whether
Aliwoli’s black Muslim faith could have motivated
the shootings denied that Aliwoli’s religion
played any role in the crime. Rather, each
witness characterized black Muslims as peaceful
and law-abiding citizens. The expert witnesses
consistently attributed Aliwoli’s actions to his
persecutorial delusional disorder and
emphatically denied that he shot the police
officers because of any religious belief. Having
obtained no testimony to substantiate its theory
that Aliwoli’s motive was based on zealous
religious beliefs rather than his delusions, the
prosecution never mentioned Aliwoli’s race or
religion during closing arguments. And, as we
previously noted, the State presented highly
persuasive evidence showing that Aliwoli was
aware of his actions when he shot the police
officers. Finally, we note that the trial court
properly instructed the jury to disregard
Aliwoli’s race and religion when reaching its
verdict. The prosecutor’s questions did not
deprive Aliwoli of a fair trial./2
  The district court is affirmed.


/1 Aliwoli also complains about another statement
that the prosecutor made during rebuttal
argument. We will not consider this statement
because it is the same argument that we
previously found procedurally defaulted. See
Aliwoli, 127 F.3d at 634.

/2 Aliwoli also argues that he was deprived of a
fair trial because the prosecutor attacked his
credibility during closing arguments. We find no
error here; there was ample evidence for the jury
to reasonably conclude that Aliwoli did not tell
the truth.



 ROVNER, Circuit Judge, concurring in part and
dissenting in part. Like my colleagues, I do not
believe that the questions centering on Aliwoli’s
race and religion deprived him, in the end, of a
fair trial. The questions themselves are
troublesome. Certainly, the State was entitled to
explore plausible explanations for this crime
other than insanity. Yet, there is nothing in the
circumstances of the offense, or elsewhere in the
record, that suggests Aliwoli’s race or religion
actually might have played a role in his attack
upon the three police officers. The closest thing
to it is a statement by family members, recounted
in a report of Aliwoli’s psycho-social history,
that "although a Muslim, he did not seem to be
excessively hostile towards whites." R. 506. This
is a slender reed, if it is any support at all,
for a series of questions aimed at establishing
that Aliwoli, as a Black Muslim, might have
distrusted the police and viewed Caucasians as
"white devils." E.g., R. 587-88. The literature
that the prosecutor also cited as a basis for
these inquiries (e.g., R. 586, 712) offers no
more justification. In a society that is highly
conscious of racial and religious differences, it
comes as no surprise that there may be tension
among peoples whose skin colors and houses of
worship differ; and many, if not most, races and
religions can lay unhappy claim to members who
promote distrust of, and even violence against,
persons of other races and religions. But to
ascribe to a defendant a motive to kill simply
because he is a Black Muslim and because other
African-Americans, or other Muslims, have
expressed distrust (or worse) of different races
and religions, is to engage in wholly
inappropriate stereotyping. I think that the
questions posed in this case may, in some
instances, have come close to such stereotyping,
rather than focusing on what the defendant
himself believed. Nonetheless, like my
colleagues, I conclude that because the witnesses
uniformly rejected the notion that Aliwoli’s race
or religion may have supplied him with a motive
to harm the police officers, and because the
State refrained from pursuing this theory in its
closing arguments, Aliwoli was not deprived of
his constitutional right to a fair trial.

  What did deprive him of that right, in my view,
was the prosecutor’s assertion, in closing
argument, that the defense was attempting to
"flimflam" the jury by asserting that Aliwoli was
insane "so that he can go laughing out the door
of this courtroom." R. 587. The message that the
prosecutor intended to convey is unmistakable:
"Find him not guilty by reason of insanity and he
will go free." The remarks were not only improper
in the sense that they invited the jury to
consider the sentencing consequences of its
verdict, see Shannon v. United States, 512 U.S.
573, 579, 114 S. Ct. 2419, 2424 (1994), but also
in the sense that they suggested, inaccurately,
that an insanity finding would necessarily set
Aliwoli free, see Ill. Rev. Stat. ch. 38 para.
1005-2-4 (1987), now codified at 730 ILCS 5/5-2-
4. Only the trial judge could have corrected the
misimpression that the prosecutor planted in the
jurors’ minds, but he declined to give a
proffered instruction that would have explained
to the jury the true consequences of a not guilty
by reason of insanity verdict. See Shannon, 512
U.S. at 587-88, 114 S. Ct. at 2428 (noting that
such an appropriate corrective instruction may be
required when the prosecution suggests that the
defendant will "go free"). True, the defense had
the opportunity to argue in its own closing that
an insanity verdict would not set Aliwoli free,
but why would the jury have believed his
attorney? The fact that the trial judge overruled
the objection to the prosecutor’s remarks, and
allowed the State to sound the same refrain in
rebuttal, see R. 890, 892,/1 if anything imbued
this line of argument with credibility. The
assertions that the defense was engaged in
trickery and deceit, e.g., R. 857, 888--again,
objected to but nonetheless allowed-- would only
have reinforced the notion that the defense would
achieve total victory (i.e. freedom for Aliwoli)
in an insanity finding, although I agree with my
colleagues that the assertions of trickery do not
support relief in and of themselves. The standard
instructions indicating that it was the judge’s
responsibility to deal with the question of
punishment, and that the attorneys’ arguments
were not evidence, did absolutely nothing to
clear up the problem. As my colleagues point out,
there was indeed evidence that Aliwoli acted in
an apparently sane manner (ante at 5). Yet, there
was also considerable evidence that he was
mentally disturbed, and the jury’s determination
that he was mentally ill confirms the weight of
that evidence. Given that the prosecutor’s
misleading arguments as to the consequence of an
insanity verdict were never corrected, and that
the jury opted for a middle-ground finding that
he was guilty but mentally ill, I cannot say with
any confidence that the error in this case was
harmless. In that respect, then, I respectfully
dissent.


/1 I recognize that Aliwoli has procedurally
defaulted any claim based on the remarks made in
rebuttal, see Aliwoli v. Gilmore, 127 F.3d 632,
634 (7th Cir. 1997), but these remarks nonetheless
bear on the prejudicial impact of the remarks
made in the prosecution’s initial closing
argument.
