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

No. 04-1741
ALEJANDRO RUVALCABA,
                                              Petitioner-Appellant,
                                 v.

NEDRA CHANDLER, Warden,
                                             Respondent-Appellee.
                          ____________
             Appeal from the United States District Court
                 for the Northern District of Illinois,
                          Eastern Division.
            No. 01 C 200—Joan Humphrey Lefkow, Judge.
                          ____________
       ARGUED FEBRUARY 8, 2005—DECIDED JULY 20, 2005
                          ____________




  Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
  RIPPLE, Circuit Judge. An Illinois jury convicted Alejandro
Ruvalcaba of the first degree murder and attempted murder
of rival gang members. He unsuccessfully appealed to the
Appellate Court of Illinois. The Supreme Court of Illinois
later denied review. He then timely filed a petition for
federal habeas relief. See 28 U.S.C. § 2254. In that petition, he
asserted, among other matters, that his confession was
involuntary and that he had been unduly prejudiced by
2                                                No. 04-1741

prosecutorial misconduct. The district court denied his
petition on the ground that the state court’s decision was
neither contrary to nor an unreasonable application of fed-
eral law. The district court granted a certificate of appeal-
ability with respect to the involuntary confession issue, and
a certificate was issued on the prosecutorial misconduct
claim after the case was docketed in this court. For the
reasons set forth in the following opinion, we affirm the
judgment of the district court.


                              I
                     BACKGROUND
A. Facts
  When he was sixteen years old, Mr. Ruvalcaba, together
with two other members of the Latin Kings gang, Juan
Meneses and Juan Alvarez, encountered rival La Raza gang
members, Carlos Flores, Hiram Martinez and Luis Sanchez.
This confrontation took place in a Chicago alley on
November 7, 1994. Earlier in the day, someone had broken
a window on Meneses’ car, an act of vandalism that he at-
tributed to La Raza. Meneses and Mr. Ruvalcaba were both
armed. The two groups exchanged gang signs. According to
the La Raza survivors, Meneses and Mr. Ruvalcaba drew
their firearms; Flores, Martinez and Sanchez attempted to
run away. According to Mr. Ruvalcaba, Meneses and Flores
began shooting at each other, and he joined in. Regardless
of who initiated the altercation, Meneses and Mr. Ruvalcaba
both fired. The latter testified that he fired only one round
towards a fence in the direction of the fleeing rivals. Marti-
nez was killed in this exchange of gunfire.
 A police investigation indicated Mr. Ruvalcaba’s involve-
ment, and two officers went to his residence.
No. 04-1741                                                 3

Mr. Ruvalcaba’s brother informed them that he was not
there. The officers left, arrested Alvarez and Meneses, and
then returned. No one answered the door at Mr. Ruvalcaba’s
residence so the officers left a business card. They learned
that Mr. Ruvalcaba had a girlfriend, Diana Caguana, and
they arrested Mr. Ruvalcaba at her residence at approxi-
mately 11:30 p.m. The police then returned to
Mr. Ruvalcaba’s residence to notify his parents of his arrest,
but, when officers arrived there, no one was home and their
business card remained in the door.
  Mr. Ruvalcaba was placed in a police-station interview
room and read his Miranda rights by the interrogating
officers, Detectives William Moser and Albert Graf. A youth
officer was not present initially, but one later arrived and
was in the room during a brief conversation in which Mr.
Ruvalcaba denied knowing anything about Martinez’s
murder. Detective Moser sent officers a second time to
locate Mr. Ruvalcaba’s parents, but again the officers were
unsuccessful. Mr. Ruvalcaba participated in a lineup with
Alvarez and Meneses just after midnight. Thereafter,
Mr. Ruvalcaba was returned to the interview room; Detec-
tive Moser testified that he checked on the suspect through
the night and asked Mr. Ruvalcaba whether he was hungry
or needed to use the restroom. Detective Graf testified that
he purchased food for Mr. Ruvalcaba and the other suspects
at approximately 3 a.m. and 8:30 a.m.
  Diana Caguana, Mr. Ruvalcaba’s girlfriend, along with the
couple’s infant child, arrived at the station sometime that
morning. At approximately 9 a.m., Detective Moser and a
youth officer were present while the assistant state’s
attorney, Thomas Biesty, again issued Miranda warnings
and questioned Mr. Ruvalcaba. He denied knowledge of the
murder. At approximately 10 a.m., Detective Moser took a
picture of Caguana and the baby; the detective testified that
4                                              No. 04-1741

he took the picture at Mr. Ruvalcaba’s request to prove to
Mr. Ruvalcaba that Caguana was present at the station, but
Mr. Ruvalcaba denies knowing that she was there. Detective
Moser testified that he allowed Caguana to speak to Mr.
Ruvalcaba at 11 a.m. Mr. Ruvalcaba denies that the visit
took place. Indeed, Mr. Ruvalcaba testified that Detective
Moser showed him the picture of Caguana and the baby,
and told him to confess or Detective Moser would “get
[Caguana] and get the truth out of her. And if she tried
lying [Detective Moser would] make sure he put her in jail
and take the baby, and make sure the baby ended up in
D.C.F.S.” R.25 at C116.
  At 11:30 a.m., Assistant State’s Attorney Biesty again
issued the Miranda warnings to Mr. Ruvalcaba and again
questioned him in the presence of Detective Moser; the
parties disputed whether the youth officer was present
throughout the interview. Mr. Ruvalcaba claims that he
received warnings but did not waive his Miranda rights. Mr.
Ruvalcaba asked what Alvarez and Meneses were saying,
and Biesty showed him that his codefendants had given
statements. Mr. Ruvalcaba thereafter confessed to the events
in the alley and gave a statement at 12:40 p.m. He claims
that Biesty pressed him to conform the statement to those
already rendered by Alvarez and Meneses. However, Mr.
Ruvalcaba did not have access to his codefendants’ state-
ments while giving his own. At the end of his statement, Mr.
Ruvalcaba said that he had been treated well, understood
his rights and had not been given promises in exchange for
the statement.


B. State and Federal Proceedings
    1. State Trial
  Mr. Ruvalcaba was charged with first degree murder in
the death of Martinez and with the attempted first degree
No. 04-1741                                                 5

murder of Flores and Sanchez. Before trial, he sought to
suppress the confession on the grounds that the police had
failed to notify his parents of his arrest, that he did not
intelligently waive his right to an attorney after police told
him that he did not need one and that officers coerced him
into making a statement. The trial court heard testimony
from the officers and Mr. Ruvalcaba and denied his sup-
pression motion,
    basing its determination on the witnesses’ credibility.
    The court found that the officers had substantially com-
    plied with the requirements contained in the Juvenile
    Court Act. The court further found that [Mr. Ruvalcaba]
    had not been subjected to intense psychological pres-
    sures and had voluntarily given his statement after be-
    ing advised of his constitutional and juvenile rights.
R.8, Ex.B (Opinion of Appellate Court of Illinois) at 9.
  After the denial of his suppression motion, Mr. Ruvalcaba
was tried before a jury and relied upon a claim of self-
defense. The jury acquitted Mr. Ruvalcaba of the attempted
murder of Sanchez, but could not reach a verdict on the
other charges. He was tried a second time. The second jury
found Mr. Ruvalcaba guilty of the first degree murder of
Martinez and the attempted murder of Flores.


  2. State Appellate Proceedings
  Mr. Ruvalcaba appealed to the Appellate Court of Illinois;
he argued, among other grounds, that his confession was
involuntary and that he had been denied due process of law
because of prosecutorial misconduct during the assistant
state’s attorneys’ closing arguments. The court affirmed his
conviction in an unpublished opinion. R.8, Ex.B.
6                                                 No. 04-1741

                              a.
  The appellate court rejected Mr. Ruvalcaba’s contention
that the trial court erred in denying the motion to suppress
his confession. Mr. Ruvalcaba had sought suppression on
the ground that he had been questioned without his parents
present and had made a statement under coercion. Consid-
ering the totality of the circumstances and taking special
care because Mr. Ruvalcaba was a minor, the court noted
that certain factors, such as Mr. Ruvalcaba’s age, his lack of
experience with the criminal justice system, and the alleged
threats against his girlfriend and child, supported a deter-
mination of involuntariness.
  On the other hand, the appellate court continued, several
factors supported the conclusion that Mr. Ruvalcaba’s state-
ment was voluntary. Notably, he had raised the alleged
threats for the first time on appeal and never had mentioned
the threats in his statement or trial testimony; he had offered
no evidence to corroborate his claim to have been psycho-
logically or physically coerced; he had been fed and was
allowed to use the restroom, and he said in his statement
that he had been treated well by the police; he acknowl-
edged at every stage that he understood his rights; he did
not have access to any codefendants’ statements when
giving his confession and had not argued at trial that he was
forced to change his statement to conform with the state-
ments of the other arrestees. Moreover, the appellate court
noted certain personal traits of Mr. Ruvalcaba that indicated
that his statement had not been involuntary. For example,
he was a high school student of at least average apparent
intelligence and was an admitted gang member who was
presumably “streetwise.” R.8, Ex.B at 21.
  The court also noted that, although Mr. Ruvalcaba was
detained for up to thirteen hours, he was interrogated only
three times, for intervals ranging from only a few seconds
No. 04-1741                                                 7

to forty-five minutes. The appellate court finally determined
that the police had complied with Illinois’ Juvenile Court
Act by calling a youth officer shortly before Mr. Ruvalcaba
arrived at the station and by making a “reasonable attempt
to notify” Mr. Ruvalcaba’s parents. 705 ILCS 405/5-405. The
appellate court accordingly held that the totality of the
circumstances indicated that Mr. Ruvalcaba offered his
confession voluntarily.


                             b.
  The state appellate court also rejected Mr. Ruvalcaba’s
prosecutorial misconduct claims. Mr. Ruvalcaba had argued
that an assistant state’s attorney offered an incorrect state-
ment of law by informing the jury that first degree murder
required the State to prove only two elements, the mens rea
and the actus reus, and by subsuming the third element,
lack of justification, into the requirement for second degree
murder. Under Illinois law, the substantive offense of first
degree murder requires that the State prove that the defen-
dant lacked justification. Mr. Ruvalcaba contended that the
prosecutor’s misstatements had the effect of placing the
burden on him to prove that the killing was justified.
  The appellate court held that, taken in context, the prose-
cutor’s statements “merely describ[ed] the process involved
in determining whether defendant was guilty of either first
degree murder or second degree murder” and did not
improperly shift the burden to Mr. Ruvalcaba. R.8, Ex.B at
33. The court held, in the alternative, that the trial court’s
instructions to the jury, which included the elements and
the burden of proof, cured any prejudice resulting from the
statements.
  Mr. Ruvalcaba also argued that an assistant state’s attor-
ney’s comments in rebuttal shifted the burden of proof by
stating that Mr. Ruvalcaba was attempting to put the State’s
8                                                No. 04-1741

witnesses on trial. The appellate court found this argument
unpersuasive because Mr. Ruvalcaba’s counsel invited the
comments in his own closing statement.
  The Supreme Court of Illinois denied a petition for leave
to appeal.


    3. Federal Habeas Proceedings
  Mr. Ruvalcaba then timely filed a federal petition for
habeas corpus. See 28 U.S.C. § 2254. His petition raised four
claims of error, only two of which have been appealed to us.
  First, he submitted that the appellate court’s decision was
contrary to and an unreasonable application of the Supreme
Court’s guidance for evaluating juvenile confessions as
established in Fare v. Michael C., 442 U.S. 707 (1979), and
applied in Hardaway v. Young, 302 F.3d 757 (7th Cir. 2002).
  The district court rejected this argument because neither
Fare nor Hardaway established a per se rule of involuntari-
ness in evaluating a minor’s confession, but rather held that
youth is one factor in a totality of the circumstances analy-
sis. Given this standard, the district court held that the
appellate court’s analysis was not an “unreasonable applica-
tion” of Fare because it adequately considered
Mr. Ruvalcaba’s age as well as other circumstances.
  Mr. Ruvalcaba also renewed his claim of prosecutorial
misconduct. The district court evaluated the submission that
he had raised before the state appellate court and rejected
his claim for relief.
  The district court granted Mr. Ruvalcaba a certificate of
appealability on his involuntary confession claim. After
Mr. Ruvalcaba filed his appeal, a certificate of appealability
was issued for his additional claim of prosecutorial miscon-
duct.
No. 04-1741                                                  9

                              II
                       DISCUSSION
A. Standard of Review
  We review the district court’s denial of a petition for
habeas relief de novo. Barrow v. Uchtman, 398 F.3d 597, 602
(7th Cir. 2005). A petition for a writ of habeas corpus by an
individual incarcerated pursuant to a state court judgment
“shall not be granted . . . unless the adjudication of the
claim . . . resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). The state appellate
court’s findings of fact are presumed correct. That presump-
tion may be rebutted only by clear and convincing evidence.
Id. § 2254(e); Mendiola v. Schomig, 224 F.3d 589, 592 (7th Cir.
2000).
   Mr. Ruvalcaba grounds his appeal on both the “contrary
to” and the “unreasonable application” prongs of § 2254. A
state court decision is “contrary to . . . clearly established
Federal law” when the court “confronts a set of facts that
are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [its] precedent.” Williams v. Taylor, 529 U.S. 362, 406
(2000). An “unreasonable application of[ ] clearly estab-
lished Federal law” results when a court “correctly identifies
the governing legal rule but applies it unreasonably to the
facts of a particular prisoner’s case.” Id. at 407-08. “This
reasonableness determination is quite deferential, such that
a state decision may stand as long as it is objectively reason-
able, even if the reviewing court determines it to be sub-
stantively incorrect.” Uchtman, 398 F.3d at 602. We presume
the state court’s factual determinations to be correct, unless
Mr. Ruvalcaba rebuts that presumption with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
10                                                 No. 04-1741

B. Involuntary Confession
  Mr. Ruvalcaba first asserts that the state appellate court
acted contrary to and unreasonably applied Supreme Court
precedent when it determined his confession to be volun-
tary. He notes that the record must be scrutinized with care
in cases involving a juvenile’s confession, and he claims that
the state court did not exercise that care in evaluating his
statements. He argues that the totality of the circumstances,
but particularly his youth, indicates that police coercion
over the course of a long interrogation overcame his sixteen-
year-old will to resist. Consequently, Mr. Ruvalcaba argues,
the admission of his statement violated his rights under the
Due Process Clause of the Fourteenth Amendment to the
Constitution of the United States.
  At the outset, Mr. Ruvalcaba challenges several of the
state court’s factual findings. See 28 U.S.C. § 2254(d)(2).
In particular, he disputes that police interrogated him
only three times while he was in custody and that he un-
derstood the Miranda warnings. However, he offers no
evidence beyond his own assertions to refute the evidence
from officers that he was interrogated three times. In short,
he fails to offer the clear and convincing evidence necessary
to rebut the statutory presumption that the state court’s
factual findings are correct. Similarly, he offers no evidence
at all to rebut the officers’ testimony that he appeared to
understand the Miranda warnings. Accordingly, we must
accept the state court’s factual determinations. See id.
§ 2254(e)(1). Furthermore, the state trial court’s factual
determinations largely were based on its view of the credi-
bility of the witnesses. “Federal courts do not reevaluate the
credibility of witnesses when conducting habeas review of
state trials.” Stone v. Farley, 86 F.3d 712, 718 (7th Cir. 1996).
  We turn now to a determination of whether the decision
of the Appellate Court of Illinois can be characterized as “a
No. 04-1741                                                 11

decision that 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). The applicable standard is established
firmly in the jurisprudence of the Supreme Court: In evalu-
ating whether a defendant offered a voluntary statement, a
court must examine the totality of the circumstances sur-
rounding the interrogation. Schneckloth v. Bustamonte, 412
U.S. 218, 226 (1973). “This totality-of-the-circumstances
approach is adequate to determine whether there has been
a waiver even where interrogation of juveniles is involved.”
Fare, 442 U.S. at 725. In juvenile cases, the inquiry “includes
evaluation of the juvenile’s age, experience, education,
background, and intelligence, and [considers] whether he
has the capacity to understand the warnings given him,
the nature of his Fifth Amendment rights, and the conse-
quences of waiving those rights.” Id.; see also Hardaway, 302
F.3d at 762. The Appellate Court of Illinois recognized that
it was required to evaluate the totality of the circumstances
surrounding Mr. Ruvalcaba’s confession and undertook that
task. R.8, Ex.B at 18. Therefore, the court was not acting
“contrary to” clearly established law. Hardaway, 302 F.3d at
763.
   Our next concern is whether the state court unreasonably
applied Supreme Court precedent. As we already have
noted, the voluntariness of a statement is determined “by
considering whether, in light of the totality of the circum-
stances, the statement was the product of a rational intellect
and free will,” “or whether it was obtained by the authori-
ties through coercive means,” United States v. Brooks, 125
F.3d 484, 492 (7th Cir. 1997) (citing Mincey v. Arizona, 437
U.S. 385, 398 (1978), and Colorado v. Connelly, 479 U.S. 157,
165 (1986)). Mr. Ruvalcaba’s minority at the time is an im-
portant factor to consider, but his age alone does not render
12                                                  No. 04-1741

the confession involuntary. See Fare, 442 U.S. at 725 (noting
that the inquiry “includes evaluation of the juvenile’s age”
(emphasis added)). The Supreme Court in Fare held that a
sixteen-year-old could make a statement intelligently and
                                                              1
voluntarily, even without the presence of a friendly adult.
See also Hardaway, 302 F.3d at 763 (“[T]he mere absence of a
friendly adult is by itself insufficient to require suppression
of a juvenile confession.”).
  With respect to the other Fare factors, Mr. Ruvalcaba had
reached his sophomore year in high school by the time of
the offense, and there is no evidence that he was of abnor-
mally low intelligence or otherwise was highly vulnerable.
The trial court had an opportunity to assess his demeanor
when he testified at the suppression hearing. Mr. Ruvalcaba
admittedly had no previous experience with the criminal
justice system, a fact that the appellate court noted in his
favor. However, Mr. Ruvalcaba was an admitted gang
member, and the district court cannot be said to have erred
in presuming that he was “streetwise,” a factor that reduces
the importance of his lack of experience and indicates the
capacity to appreciate his Fifth Amendment rights. See
Correll v. Thompson, 63 F.3d 1279, 1291 (4th Cir. 1995) (noting
that defendant was streetwise and thus was capable of
understanding his rights and of giving a voluntary state-
ment, despite an IQ of 68). In short, “[t]here is no indication
that he was of insufficient intelligence to understand the
rights he was waiving, or what the consequences of that
waiver would be.” Fare, 442 U.S. at 726.
  In addition, there is relatively little evidence of official
coercion in this case. Mr. Ruvalcaba was detained for up to


1
 There is no evidence that the youth officer actually assisted Mr.
Ruvalcaba, and his presence therefore is of little import. See
Hardaway v. Young, 302 F.3d 757, 765 (7th Cir. 2002).
No. 04-1741                                                   13

fourteen hours, but the evidence shows that he was not
interrogated repeatedly during this period and that he was
questioned for a total of less than two hours over the course
of three separate sessions. Nor is there evidence that he was
denied food, rest or bathroom facilities during the period of
his detention. Although he claimed that Assistant State’s
Attorney Biesty forced him to conform his statement to
mirror those of his codefendants, the state trial court, basing
its conclusion on its assessment of the witnesses’ credibility,
found that Mr. Ruvalcaba gave his statement before he was
informed in any way of the substance of his codefendants’
statements.
   The only evidence of coercion that Mr. Ruvalcaba offered
was the alleged threat to his girlfriend and child. See Johnson
v. Trigg, 28 F.3d 639, 643 (7th Cir. 1994). The state trial court
appraised this story when it made credibility findings and
concluded that Mr. Ruvalcaba’s will was not overborn by
intense psychological pressure at the time he confessed. In
sum, the Appellate Court of Illinois reasonably applied the
standard set forth by the Supreme Court in Fare for evaluat-
ing a juvenile confession.


C. Waiver of Miranda Rights
  Mr. Ruvalcaba’s submissions may be construed as inde-
pendently challenging the state court’s determination that
he voluntarily waived his right to remain silent and to have
counsel present during his interrogation. See Miranda v.
Arizona, 384 U.S. 436, 444 (1966). In evaluating whether a
suspect voluntarily waived his Miranda rights, we consider
the same factors that we considered above in assessing the
overall voluntariness of a confession. See United States v.
Huerta, 239 F.3d 865, 873 (7th Cir. 2001) (“Factors considered
in the analysis include the defendant’s background, experi-
14                                                     No. 04-1741

ence, and conduct.”). Any argument that Mr. Ruvalcaba
involuntarily waived his Miranda rights would “reiterate the
identical factual assertions that the district court rejected
with respect to h[is] voluntariness claim.” Id. The state
court’s determination that Mr. Ruvalcaba voluntarily
waived his rights is compatible with the standards enunci-
ated by the Supreme Court of the United States.


D. Prosecutorial Misconduct
   Mr. Ruvalcaba further submits that he was denied a fair
trial through prosecutorial misconduct. He alleges that the
state’s attorneys misstated the law to the jury and improp-
                                 2
erly shifted the burden of proof. Although his submissions


2
   In his submissions to this court, Mr. Ruvalcaba enclosed por-
tions of the state trial record that were not before the district
court. See Appellant’s Supplemental App. 5. In particular, he
seeks to include a small portion of the State’s rebuttal argument
and the trial court’s jury instructions. The State has moved to
strike Appendix 5 as a violation of Federal Rule of Appellate
Procedure 10(a); in the alternative, the State invites us to consider
the entirety of the instructions in Appendix 5, which it believes
bolsters the state appellate decision, rather than just the portions
that Mr. Ruvalcaba cites.
   The material submitted as Appendix 5 was not before the
district court, and we generally decline to supplement the record
on appeal with materials that were not before the district court.
See Shasteen v. Saver, 252 F.3d 929, 935 n.2 (7th Cir. 2001). The jury
instructions are helpful to this court in evaluating the state ap-
pellate decision and, for reasons discussed below, ultimately do
not support Mr. Ruvalcaba’s position. In the interest of comple-
tion, therefore, we have considered the materials submitted as
Appendix 5 and view them in their entirety.
                                                      (continued...)
No. 04-1741                                                         15

to this court do not specify the challenged statements, we
understand Mr. Ruvalcaba’s claim to assert the same error
that he argued before the state courts.
  In Illinois, lack of justification is an element of the offense
of first degree murder that must be proved by the State. 720
ILCS 5/9-1(a) (“A person who kills an individual without
lawful justification commits first degree murder if . . . .”
(emphasis added)). The defendant bears the burden of
proving, by a preponderance of the evidence, a mitigating
factor such as self-defense to reduce the offense to second
degree murder. When such a defense is raised, “[t]he State
still bears the burden to prove, beyond a reasonable doubt,
the elements of first degree murder and, when appropri-
ately raised, the absence of circumstances at the time of the
killing that would justify or exonerate the murder.” People
v. Jeffries, 646 N.E.2d 587, 591-92 (Ill. 1996).
  In her closing statement, an assistant state’s attorney told
the jury:


(...continued)
  The jury instructions are not the only portion of the trial record
that is absent from the record here. Indeed, Mr. Ruvalcaba’s
prosecutorial misconduct argument was not developed before the
district court, which apparently gave him the benefit of the doubt
by considering the argument as raised before the state appellate
court. Mr. Ruvalcaba challenges certain statements made by the
prosecutors, but the applicable pages of the trial record are not
enclosed. Instead, Mr. Ruvalcaba cites to his brief before the state
court, which in turn cited portions of the transcript not before this
court. See Reply Br. at 8 (citing R.8, Ex.A at 57 (citing Tr.17 at U82-
85)). The parties do not dispute Mr. Ruvalcaba’s transcription of
the record, and the state appellate court also quoted the chal-
lenged statements. See R.8, Ex.B at 30-32. We therefore have
considered the statements that he challenges despite their absence
from the record.
16                                                  No. 04-1741

       [The judge] will instruct you, Ladies and Gentlemen,
     that to sustain the charge of first degree murder, . . . the
     State must prove the following propositions, that the
     defendant or for one for whose conduct [he] is legally
     responsible, . . . the accountability language, . . .
     perform[ed] the acts which cause[d] the death of Hiram
     Martinez.
       Second, that when the defendant or for one for whose
     conduct he is legally responsible did so intend to kill or
     do great bodily harm to Hiram Martinez or he knew
     that such act would cause death to Hiram Martinez or
     you know that such an act created a strong probability
     of death or great bodily harm to Hiram Martinez.
       . . . [T]here are two propositions here in order for
     the . . . charge of first degree murder in this case, Ladies
     and Gentlemen. We have proven each and every one of
     them. First, that the defendant or one for whose conduct
     he is legally responsible performed the acts which
     caused the death.
       We know that is what happened. We know that
     shooting in the alley caused the death of 17-year-old
     Hiram Martinez, the second proposition which give you
     three separate propositions. We have proven each and
     every one of those.
       When you fire a 9 millimeter handgun and a .32
     caliber weapon into the direction of two living human
     beings, what else could you possibly intend except to
     cause death or great bodily harm.
       Ladies and Gentlemen, this is like a road map. Ladies
     and Gentlemen, we have proven first degree murder.
       ....
No. 04-1741                                                  17

      The Judge will also struck [sic] you, Ladies and
    Gentlemen, as to the law of second degree murder, and
    that would be the third proposition that you will read
    on this instruction.
      The third proposition states that the defendant or one
    for whose conduct he is legally responsible was not
    justified in using the force in which he used.
      [Defendant] was not justified in using the force in
    which he used. He was not justified in using that force
    by his own admission, . . . that nobody had a gun in the
    alley, that he went into enemy territory, Ladies and
    Gentlemen, as aggressor looking for revenge.
      Don’t let this fool you, Ladies and Gentlemen, the
    only way to get to this third point is for the defense to
    show mitigating factor language. There is [sic] no miti-
    gating factors.
R.8, Ex.B at 30-32; see also R.8, Ex.A at 57-58. The trial court
sustained an objection to this last point and instructed the
jury to disregard it. R.8, Ex.A at 58.
  In the State’s rebuttal, another assistant state’s attorney
added:
       [Defendant] wants to get out from underneath the
    crushing, damning evidence of his guilt? Well, you saw
    it over the last few days, Ladies and Gentlemen. He tries
    to shift the spotlight over to the police, put the wit-
    nesses on trial, try to put the assistant state’s attorney
    from review on trial. It is called a defense of despera-
    tion.
    [Objection sustained]
      . . . They never told us what to do in law school when
    the law is not on your side and when the evidence is not
18                                               No. 04-1741

     on your side. Well, you got to see it first hand over the
     last few days. What you do is come up with the
     Alejandro Ruvalcaba defense that puts everybody else
     on trial.
     [Objection overruled]
R.8, Ex.A at 58; see also R.8, Ex.B at 35-36.
  The trial court instructed the jury in relevant part:
       To sustain a charge of first degree murder or charge of
     second degree murder, the State must prove the follow-
     ing propositions: First, that the defendant or one for
     whose conduct he is legally responsible performs the act
     which caused the death of Hiram Martinez. And,
     second, that when the defendant or one for whose
     conduct he is legally responsible did so. He attempted
     to kill or do great bodily harm to Hiram Martinez or he
     know [sic] that such acts would cause the death to
     Hiram Martinez or he knows such acts created a strong
     probability of death or great bodily harm to Hiram
     Martinez and, third, that defendant or one for whose
     conduct he is legally responsible was not justified in
     using the force which he used.
       ....
       You should not consider whether the defendant is
     guilty of a lesser offense of second degree murder until
     and unless you have first determined the State has
     proved beyond a reasonable doubt each of the previ-
     ously stated propositions.
       The defendant has the burden of proving by a prepon-
     derance of the evidence that mitigating factor was
     present so that he is guilty of the lesser offense of
     second degree murder instead of first degree murder.
No. 04-1741                                                  19

      By this I mean you must be persuaded considering all
    the evidence in the case that it is probably more true
    than not true that the following mitigating factors are
    present: That the defendant at the time he performed
    the acts which caused the death of Hiram Martinez
    believed the circumstances would be such that they
    justified deadly force he used was believed that such
    circumstances exists—was reasonable.
      If you find from your consideration of all the evidence
    the defendant has proved by preponderance of the
    evidence that a mitigating factor is present so that he is
    guilty of the lesser offense of second degree murder
    instead of first degree murder, you should find the
    defendant guilty of second degree murder.
Appellant’s Supplemental App. 5 at 152-55.
   Mr. Ruvalcaba argued that the state’s attorneys’ state-
ments, together with the jury instructions, shifted to him the
burden of proving lack of justification. The state appellate
court rejected this contention, holding that the prosecutors’
statements were proper because they merely described the
process by which an Illinois jury was to determine guilt of
first or second degree murder, and responded to Mr.
Ruvalcaba’s attempts at trial to discredit State witnesses.
Moreover, the appellate court held that the trial court’s
instructions to the jury cleared any confusion regarding
burdens of proof.
  Mr. Ruvalcaba asserts that the appellate court’s decision
was contrary to or an unreasonable application of federal
law. He notes that the evidence against him was not over-
whelming, as indicated by the first jury’s failure to reach a
verdict. He further notes that the trial court garbled Illinois’
pattern jury instruction. Specifically, Mr. Ruvalcaba claims
that the trial court articulated a confusing direction about
20                                                 No. 04-1741

whether he bore the burden of establishing self-defense
before the jury could find second degree murder: “the
defendant at the time he performed the acts which caused
the death of Hiram Martinez believed the circumstances
would be such that they justified deadly force he used was
believed that such circumstances exists—was reasonable.”
Appellant’s Supplemental App. 5 at 154. At another point,
in discussing the elements of first degree murder, the state
trial court substituted the word “attempted” for the proper
term, “intended.” Appellant’s Supplemental App. 5 at 153.
The confusing instructions, according to Mr. Ruvalcaba, also
exacerbated the prosecutors’ misstatements.
   A claim of prosecutorial misconduct must be evaluated
according to the framework established by the Supreme
Court in Darden v. Wainwright, 477 U.S. 168 (1986). The court
first looks to the challenged comments to determine
whether they were improper. If the comments were im-
proper, the court then evaluates whether the defendant was
prejudiced by the comments. It accomplishes this task by
considering six factors: “(1) whether the prosecutor mis-
stated the evidence, (2) whether the remarks implicate
specific rights of the accused, (3) whether the defense
invited the response, (4) the trial court’s instructions, (5) the
weight of the evidence against the defendant, and (6) the
defendant’s opportunity to rebut.” Howard v. Gramley, 225
F.3d 784, 793 (7th Cir. 2000); see Darden, 477 U.S. at 181-82.
In determining whether the prosecutors’ remarks were
prejudicial, “it is not enough that the prosecutors’ remarks
were undesirable or even universally condemned. The
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, 477 U.S. at 181
(internal quotations and citations omitted).
  Although the state appellate court did not cite Darden, it
applied the correct standard. The court principally con-
No. 04-1741                                                21

cluded that the prosecutors’ comments were not improper
under Darden’s first prong. Although we might not be as
charitable if we were reviewing the matter as one of first
impression, we would be hard-pressed to say that the
Appellate Court of Illinois’ characterization of the prosecu-
tors’ statements was unreasonable. In any event, the trial
court’s action in sustaining the defense’s objection to one
aspect of the prosecutors’ remarks went a long way toward
curing any problem.
  The appellate court had no occasion specifically to address
Darden’s second prong. Nevertheless, we find adequate
consideration of the second-prong factors throughout the
court’s opinion. The appellate court evaluated, among other
considerations, whether the prosecutors misstated evidence
and whether the trial court’s instructions were correct. See
Hough v. Anderson, 272 F.3d 878, 903 (7th Cir. 2001) (finding
sufficient the state court’s consideration although “[t]he
Supreme Court of Indiana did not recite with precision the
factors set forth in Darden”).
  Thus, even if we were to assume that the State’s argu-
ments were improper under Darden’s first prong, we cannot
say that the state appellate court unreasonably applied
Darden’s second prong when it determined that the state-
ments did not prejudice Mr. Ruvalcaba because the trial
court’s jury instructions adequately set forth the applicable
burdens of proof and the elements of the offenses. The trial
court’s instructions to the jury correctly stated the elements
and burdens of proof for first degree murder. The trial court
instructed the jury that “[t]he State has the burden of
proving the guilt of the defendant beyond a reasonable
doubt, and this burden remains on the State throughout the
case.” Appellant’s Supplemental App. 5 at 149. It then
reiterated that
22                                                     No. 04-1741

     [t]o sustain a charge of first degree murder or charge of
     second degree murder, the State must prove the follow-
     ing propositions: First, that the defendant . . . performs
     the act which caused the death of Hiram Martinez. And,
     second, that when the defendant . . . did so[,] [h]e
     attempted to kill or do great bodily harm to Hiram
     Martinez . . . and, third, that defendant . . . was not justified
     in using the force which he used.
Appellant’s Supplemental App. 5 at 152-53 (emphasis
added). It is assumed that the jury followed the trial court’s
instructions, Bae v. Peters, 950 F.2d 469, 481 (7th Cir. 1991),
and it was not unreasonable of the state appellate court to
determine that this instruction sufficiently cured any error
in the prosecutors’ closing statements.
   Furthermore, we do not believe that the trial court’s use of
the term “attempted” rather than “intended” in the second
element constituted prejudicial error. Although the court
first stated the scienter requirement as a showing that Mr.
Ruvalcaba “attempted to kill or do great bodily harm to
Hiram Martinez,” the court continued: “or he know [sic] that
such acts would cause the death of Hiram Martinez or he
knows such acts created a strong probability of death or
great bodily harm to Hiram Martinez.” Appellant’s Supple-
mental App. 5 at 153 (emphasis added). Considering the
instruction as a whole, it was clear to the jury that the
second element required a showing that Mr. Ruvalcaba
intended to kill rather than attempted to kill.
  Nor do we believe that the trial court’s instruction regard-
ing the mitigation factor of self-defense was so confusing as
to exacerbate any impact on the jury from the prosecutors’
comments. The Illinois court was entitled to conclude that,
taken in context, this instruction adequately conveyed the
mitigation factor to the jury. Notably, after the passage upon
No. 04-1741                                                23

which Mr. Ruvalcaba focuses, the state trial court then
continued with, and correctly stated, the standard: “If you
find from your consideration of all the evidence the defen-
dant has proved by preponderance of the evidence that a
mitigating factor is present . . . you should find the defen-
dant guilty of second degree murder.” Appellant’s Supple-
mental App. 5 at 154-55. We cannot say that these instruc-
tions render unreasonable the Appellate Court of Illinois’
view that the instructions were not so confusing that they
denied Mr. Ruvalcaba a fair trial.
  Further consideration of the second-prong Darden factors
demonstrates that Mr. Ruvalcaba suffered no prejudice from
the challenged statements. For instance, Mr. Ruvalcaba does
not claim, nor is there any evidence, that the state’s attor-
neys misstated the evidence against him. Moreover, the
evidence against Mr. Ruvalcaba was more than ample: He
was an admitted gang member; he and Meneses were look-
ing for rival gang members to avenge an act of vandalism;
he armed himself before walking into the alley and admit-
ted to shooting in the direction of fleeing rivals during the
fatal altercation. Considering all of these factors, we cannot
say that the state appellate court’s determination that
Mr. Ruvalcaba suffered no prejudice was contrary to, or
involved an unreasonable application of, Darden.


                        Conclusion
  For the foregoing reasons, we affirm the judgment of the
district court.
                                                   AFFIRMED
24                                           No. 04-1741

A true Copy:
       Teste:

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




                USCA-02-C-0072—7-20-05
