                               In the

     United States Court of Appeals
                 For the Seventh Circuit
No. 13-2466

CHE B. CARTER,
                                               Petitioner-Appellant,

                                 v.


KEITH BUTTS,
                                              Respondent-Appellee.

         Appeal from the United States District Court for the
          Southern District of Indiana, Indianapolis Division.
      No. 1:11-cv-00886-SEB-DML — Sarah Evans Barker, Judge.


       ARGUED MAY 21, 2014 — DECIDED JULY 25, 2014


   Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
    BAUER, Circuit Judge. Che B. Carter (“Carter”) appeals the
district court’s denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He contends that his appellate counsel
rendered ineffective assistance by failing to challenge the
attempted murder jury instruction given at his trial and that
this unduly prejudiced him. Carter argues that the Indiana
Supreme Court unreasonably applied Supreme Court prece-
dent when it determined that he suffered insufficient prejudice
2                                                   No. 13-2466

to warrant relief. For the reasons that follow, we affirm the
district court’s decision to deny Carter’s petition for a writ of
habeas corpus.
                        I. BACKGROUND
    On June 20, 1990, Carter went to the home of Donna M.
Stegemiller (“Stegemiller”) because she had filed a small claims
case against his mother. Carter asked to discuss the case with
Stegemiller on her porch, then forced his way into Stegemiller’s
home and started to strangle her. Carter held Stegemiller
down and struck her in the head with a tire iron. Carter then
shouted for his accomplice, Wayne Mitchell (“Mitchell”), to
come into the house. Carter held Stegemiller down and
removed rings from her fingers while Mitchell raped her.
Before she lost consciousness, Stegemiller saw Carter and
Mitchell taking a stereo speaker from her home and heard one
of the men tell the other, “[M]ake sure she’s dead before we
leave because she can identify us.” Carter and Mitchell
removed the telephones from Stegemiller’s house so that she
would be unable to call for help. When they left, they locked
and barricaded the doors so that Stegemiller could not leave
her home or seek medical attention. Stegemiller survived, but
sustained serious injuries.
    A. Carter’s Trial
    At trial, the government introduced evidence of Carter’s
intent to kill Stegemiller. The first person who spoke to
Stegemiller after she was attacked testified that Stegemiller
told him she heard one of her attackers say, “[M]ake sure the
bitch is dead before we leave.” The first police officer at the
scene also testified that Stegemiller told him she heard,
No. 13-2466                                                    3

“[D]on’t leave until she is dead.” Stegemiller was not sure,
however, whether Carter or Mitchell made this statement.
    Without objection from the defense, the court gave the
following attempted murder jury instruction:
   To convict the defendant the State must have proved
   each of the following elements: The defendant[] … 1.
   Knowingly 2. Engaged in conduct by striking Donna M.
   Stegemiller on or about her head by means of a deadly
   weapon, that is a tire tool and strangling her neck
   rendering her unconscious. 3. That the conduct was a
   substantial step toward the commission of the crime of
   murder: that is the knowing and intentional killing of
   another human being. If the State failed to prove each of
   these elements beyond a reasonable doubt, you should
   find the defendant not guilty.
    In his closing argument, the prosecutor acknowledged that
in order for the jury to convict the defendant of attempted
murder, the State needed to prove that Carter “intended to
kill” Stegemiller. The prosecutor argued that hitting Stege-
miller in the head with a tire iron and strangling her demon-
strated such an intent. He also pointed to the statement made
by Carter or Mitchell—“make sure she’s dead before we leave
because she can identify us”—as well as the fact that Carter
and Mitchell locked the doors and took Stegemiller’s phones
so that she would be unable to seek help as further evidence of
their “intent” to kill Stegemiller. In defense counsel’s closing
argument, he reiterated to the jury that the State had to prove
that Carter intended to kill the victim in order to convict him
of attempted murder.
4                                                            No. 13-2466

   On March 19, 1991, a jury convicted Carter of felony
burglary, robbery, rape, and attempted murder. He was
sentenced to a total of ninety years.1
    B. The Indiana Supreme Court’s Decision in Spradlin v.
       State
    Less than a month after Carter’s conviction, the Indiana
Supreme Court held that “an instruction which purports to set
forth the elements which must be proven in order to convict of
the crime of attempted murder must inform the jury that the
State must prove beyond a reasonable doubt that the defen-
dant, with intent to kill the victim, engaged in conduct which
was a substantial step toward such killing.” Spradlin v. State,
569 N.E.2d 948, 950 (Ind. 1991). The court concluded that in an
attempted murder case, it is reversible error to fail to instruct
a jury that to convict, the jury must find that the defendant
intended to kill the victim. Id. at 951.
    C. Post-Conviction Proceedings
    In March 1992, Carter’s appellate attorney, Belle Choate
(“Choate”), filed the opening brief in Carter’s direct appeal of
his attempted murder conviction. Though she raised several
issues on appeal, she failed to argue that the attempted murder
jury instruction given at Carter’s trial constituted fundamental
error under Spradlin, requiring reversal. Carter lost his appeal.
   On November 13, 2006, Carter filed an amended petition
for post-conviction relief, in which he argued that Choate


1
  Carter’s sentence was later revised, resulting in an aggregate sentence of
sixty years.
No. 13-2466                                                       5

rendered ineffective assistance by failing to argue that the
attempted murder jury instruction given at his trial violated
Spradlin. The post-conviction trial court denied relief, finding
that “[appellate counsel’s] work on [Carter’s] case was well
within an objective standard of reasonableness based on
‘prevailing professional norms,’” but the Indiana Court of
Appeals reversed. It stated, “If Carter experienced any preju-
dice as a result of his counsel’s failure to raise the issue [of the
erroneous attempted murder jury instruction], … we are
compelled to find that he received the ineffective assistance of
counsel.” The court determined that Choate’s “decision to omit
that argument resulted in deficient performance,” and con-
cluded “that Carter was prejudiced as a result of his attorney’s
error.”
   On transfer, the Indiana Supreme Court vacated the
appellate court’s decision and denied Carter’s petition for post-
conviction relief. In reaching its decision, the court applied the
two-part ineffective assistance of counsel test established by
the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). The Indiana Supreme Court “assume[d] for the sake of
argument … that Choate should have argued that the at-
tempted murder instruction was defective,” but ultimately
concluded that “Carter did not suffer sufficient prejudice to
warrant setting aside the [jury’s] verdict.” The court stated:
   While the instruction that attempted murder required
   a knowing step toward an intentional killing was
   substandard, it is apparent that the jury was told what
   the law required. During closing argument, both Carter
   and the State argued to the jury that the State was
   required to prove intent to kill in order to convict Carter
6                                                    No. 13-2466

    of attempted murder. The prosecutor declared during
    argument that the State had to prove each defendant
    “intended to kill” the victim and pointed to evidence
    that the prosecutor believed demonstrated [each man’s]
    intent with regard to the attempted murder charge. He
    went on to point to the acts of hitting the victim in the
    head with a tire iron and strangling her as acts that were
    substantial steps toward killing the victim but that
    “simply failed” to achieve that result and that “addi-
    tional evidence” of their intent was the statement, made
    by [Carter or Mitchell], that they had to kill the victim
    and could not let her live because she could identify
    them and their failure to seek any medical help for her.
    Most significantly, [the prosecutor] told the jury that to
    convict the defendants of attempted murder, the State
    had to prove that each man, either aiding, abetting or
    directly as a principal intended—committed some act,
    intended to kill [Stegemiller]; and it was only for some
    reason not of their own doing that they failed to achieve
    that objective … . Defense counsel also argued that the
    state had to prove that Carter intended to kill the victim
    and that the evidence did not support a conclusion that
    he acted with that intent because, although Carter could
    have killed the victim, he did not do so. As the jury
    commenced its deliberations, therefore, it had before it
    these explanations about intent, an instruction that
    Carter’s knowing actions must have constituted a
    substantial step towards an intentional killing, and the
    evidence described above. We conclude that there was
No. 13-2466                                                    7

   insufficient prejudice flowing from Choate’s perfor-
   mance to warrant relief.
    Carter then filed a petition in the Southern District of
Indiana for a writ of habeas corpus, again asserting that
Choate’s performance violated his Sixth Amendment right to
effective assistance of counsel. The district court denied his
petition, holding that “[t]he [Indiana] Supreme Court’s correct
application of Strickland renders federal habeas relief unavail-
able to Carter on his claim that he was denied his Sixth
Amendment right to effective assistance of counsel in connec-
tion with his direct appeal.” He now appeals to this court.
                        II. DISCUSSION
   A. Habeas Corpus Review
    We review the district court’s decision to deny Carter’s
petition for a writ of habeas corpus de novo, Bolton v. Akpore,
730 F.3d 685, 693 (7th Cir. 2013), and our review is limited by
the terms of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). P.L. 104-132, 110 Stat. 1214. “[A]lthough
we technically hear this appeal from the district court, our
inquiry focuses entirely on what occurred in the state court,”
McNary v. Lemke, 708 F.3d 905, 913 (7th Cir. 2013), and we look
to “the decision of the last state court to rule on the merits of
the petitioner’s claim.” McCarthy v. Pollard, 656 F.3d 478, 483
(7th Cir. 2011). Therefore, our review begins with the decision
of the Indiana Supreme Court.
   Under AEDPA, we may only grant habeas relief based on
a claim of legal error if the decision “was contrary to, or
involved an unreasonable application of, clearly established
8                                                     No. 13-2466

Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 131
S. Ct. 770, 783–84 (2011). We may not issue a writ “simply
because [we] conclude[] … that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreason-
able.” Williams v. Taylor, 529 U.S. 362, 411 (2000); Rastafari v.
Anderson, 278 F.3d 673, 688 (7th Cir. 2002). This demanding
standard allows us to issue a writ only in cases “where there is
no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [Supreme Court] precedents. It
goes no farther.” Harrington, 131 S. Ct. at 786.
    B. Carter’s Ineffective Assistance of Counsel Claim
    Carter contends that Choate’s failure to challenge the
attempted murder jury instruction given at his trial violated his
Sixth Amendment right to effective assistance of counsel. The
Sixth Amendment protects the “fundamental right to a fair
trial.” Strickland, 466 U.S. at 684. It entitles a defendant to the
effective assistance of counsel both at trial and during his first
appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). To
prove ineffective assistance of counsel, a defendant must meet
the two-part test outlined in Strickland. 466 U.S. at 687. First,
the defendant must show that counsel’s performance was
deficient and fell below an objective standard of reasonable-
ness. Id. at 687–88. Counsel’s errors must have been “so serious
as to deprive the defendant of a fair trial.” Id. at 687. Next, the
defendant must demonstrate that counsel’s deficient perfor-
mance prejudiced his defense. Id. at 692. “It is not enough for
the defendant to show that the errors had some conceivable
No. 13-2466                                                    9

effect on the outcome of the proceeding.” Id. at 693. Rather, the
defendant must demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. A reason-
able probability is one that suffices to undermine confidence in
the outcome of the trial proceedings. Id. A defendant’s failure
to establish either prong of the test is fatal to his ineffective
assistance of counsel claim. Rastafari, 278 F.3d at 688.
   C. The Indiana Supreme Court’s Opinion
   The Indiana Supreme Court focused on the second part of
the Strickland test, the prejudice prong. It acknowledged that
the attempted murder jury instruction given at Carter’s trial
was “substandard” and assumed that Choate should have
objected to the instruction on appeal. However, it denied
Carter’s ineffective assistance of counsel claim since it found
“insufficient prejudice flowing from Choate’s performance to
warrant relief.” The court reasoned that while the attempted
murder jury instruction “was substandard, it [was] apparent
that the jury was told what the law required.”
   D. Our Review
    When reviewing the Indiana Supreme Court’s decision, we
grant the court “a deference and latitude that [is] not in
operation when the case involves review under the Strickland
standard itself.” Harrington, 131 S. Ct. at 785. “The question is
not whether [we believe] the state court’s determination under
the Strickland standard was incorrect but whether that determi-
nation was unreasonable—a substantially higher threshold.
And, because the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine
10                                                    No. 13-2466

that a defendant has not satisfied that standard.” Knowles v.
Mirzayance, 129 S. Ct. 1411, 1420 (2009) (internal quotations and
citations omitted). “Even a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.”
Harrington, 131 S. Ct. at 786.
    Applying this highly deferential standard, we do not find
that the Indiana Supreme Court unreasonably applied clearly
established federal law; rather, we find that the Indiana
Supreme Court reasonably concluded that Carter was not
sufficiently prejudiced by Choate’s failure to challenge the
attempted murder jury instruction to warrant relief. The
Indiana Supreme Court correctly acknowledged the Strickland
standard as controlling and applied it, explaining that it would
“assess[] the likelihood of prejudice” to Carter. It acknowl-
edged that the language of the attempted murder jury instruc-
tion was imperfect, but found that it did not sufficiently
prejudice Carter to warrant relief. The court reasoned that the
jury instructions as a whole, coupled with the evidence
presented at trial as well as statements made by the prosecu-
tion and defense during closing arguments, made clear to the
jury that it was required to find that Carter intended to kill
Stegemiller in order to convict him of attempted murder.
Therefore, the court determined that the result of Carter’s
appeal would have been the same absent Choate’s failure to
challenge the jury instruction, defeating his ineffective assis-
tance of counsel claim.
   While Choate’s performance may well have been deficient,
we find that the Indiana Supreme Court’s conclusion that
Carter failed to satisfy the prejudice prong of the Strickland test
was not an unreasonable one.
No. 13-2466                                               11

                      III. CONCLUSION
   Therefore, we AFFIRM the decision of the district court to
deny Carter’s petition for a writ of habeas corpus.
