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

No. 05-1715
JONATHAN BARTLETT,
                                              Petitioner-Appellant,
                                  v.

DEIDRE BATTAGLIA, Warden,1
                                              Respondent-Appellee.
                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 04 C 4204—Matthew F. Kennelly, Judge.
                           ____________
      ARGUED APRIL 11, 2006—DECIDED JUNE 21, 2006
                     ____________


 Before FLAUM, Chief Judge, and BAUER and SYKES, Circuit
Judges.
   FLAUM, Chief Judge. On July 19, 2000, following a trial
in the Cook County Circuit Court of Illinois, a jury found
Jonathan Bartlett guilty of first-degree murder, attempted
first-degree murder, and aggravated discharge of a firearm.
After exhausting his appeals in the Illinois State Court
system, Bartlett filed a petition for a writ of habeas corpus
in the Northern District of Illinois. The district court denied


1
  Pursuant to FEDERAL RULE OF APPELLATE PROCEDURE 43(c)(2),
Deidre Battaglia has been substituted for the original respondent,
Kenneth R. Briley.
2                                                   No. 05-1715

Bartlett’s petition, but granted a Certificate of Appeal-
ability.
  For the following reasons, we now affirm the judgment of
the district court.


                       I. Background
  For the crimes of first-degree murder, attempted first-
degree murder, and aggravated discharge of a firearm, the
State of Illinois, Cook County Circuit Court, sentenced
Jonathan Bartlett to a term of forty years’ imprisonment.
Bartlett appealed, claiming, inter alia, that the prosecutor’s
closing argument improperly quantified the burden of proof
and violated his rights to due process and a fair trial. The
Appellate Court of Illinois, First Judicial Circuit, reversed
Bartlett’s conviction for aggravated discharge of a firearm,
but affirmed his remaining convictions and total sentence.2
The Supreme Court of Illinois denied Bartlett’s petition for
appeal.
   After exhausting state remedies, Bartlett filed a peti-
tion for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254(d). The district court denied the petition for a writ of
habeas corpus, but issued a Certificate of Appealability
“with regard to petitioner’s claim that the prosecutor’s
argument regarding the burden of proof improperly quanti-
fied the burden of proof and violated petitioner’s rights to
due process and a fair trial.”
  Bartlett’s appeal concerns statements made by the
prosecution during the rebuttal portion of its closing
argument. These comments were quoted by the Illinois
Appellate Court and are contained in the record before this
Court:


2
  The reversal had no impact on Bartlett’s total sentence, nor the
substance of this appeal.
No. 05-1715                                                3

   Mr. Shlifka [Assistant State’s Attorney]: . . . Mr.
   Sheppard [Defendant’s counsel] has spent a lot of time
   telling you about how Johnathan [sic] Bartlett is
   cloaked with the presumption of innocence, and he
   referred to the weighty burden and the heavy burden
   and all these nice little stories and—
   Mr. Sheppard: Objection, your Honor.
   The Court: Overruled.
   Mr. Shlifka: Brick walls. Brick walls. Well, let me
   explain something to you, folks. The burden we have is
   beyond a reasonable doubt. Not beyond any doubt, not
   beyond a shadow of a doubt, not beyond all doubt, but
   beyond a reasonable doubt. And it’s not like a brick
   wall.
   Mr. Sheppard: Objection, your Honor.
   The Court: Overruled.
   Mr. Shlifka: It’s not like a brick wall at all where
   you have to remove every single brick. Think of it
   more like a puzzle. Think the Eiffel Tower. You’re
   putting those pieces in. You want to get thirty percent
   (30%) done. Well, it kind of looks likes a tower to me.
   Let’s say you get all the pieces in except ten, twenty,
   thirty. You’re looking at it. My gosh, that’s the Eiffel
   tower. Do you have a doubt, a reasonable doubt? And
   there’s still pieces missing. Beyond a reasonable doubt is
   the standard. That cloak that Mr. Bartlett walked into
   this courtroom with through our evidence has been
   thrown in the garbage.
(Emphasis added).
  The prosecution was not alone, however, in their attempts
to describe reasonable doubt. Presumably, the prosecution’s
“brick wall” commentary was a response to the defendant’s
closing argument, in which, the defense defined the “pre-
4                                                 No. 05-1715

sumption of innocence” as a “brick mortar wall,” which the
State must remove “every brick” of.
  In its opinion, the Illinois Appellate Court admonished
trial counsel and judges that they should avoid attempting
to explain the standard of proof in criminal cases. People v.
Bartlett, No. 1-00-3404, slip op. at 29 (Ill. App. Ct. 1st Dist.
Sep. 24, 2002) (citing People v. Keene, 660 N.E.2d 901 (Ill.
1995)). In this case, however, the court found:
    a close reading of the State’s comments . . . does not
    indicate that the State improperly attempted to com-
    pare the “beyond a reasonable doubt standard” to a 30%
    completed puzzle. Although the State initially men-
    tioned “30%,” it did not directly equate that percentage
    with its burden of proof. The State, in fact, subse-
    quently equated its burden of proof to a nearly com-
    pleted puzzle that was only missing a few pieces when
    directly referring to the “beyond a reasonable doubt”
    standard. While we agree that the State’s analogy, by
    making the reference to “30%,” appears at first glance
    to be confusing and improper, a reading of the State’s
    entire argument in context here does not support
    defendant’s argument that he was prejudiced by the
    State’s comments, thereby depriving him of a fair trial.
Id. at 31-32.
  The district court evaluated Bartlett’s habeas petition
under the standards set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C.
§ 2254(d)(1) (“An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—resulted
in a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
No. 05-1715                                                  5

determined by the Supreme Court of the United States[.]”
(emphasis added)).
   Given the constraints of AEDPA, the district court found
that it “may not . . . consider the matter de novo. . . . Under
the law as it now stands, the Court is constrained to
conclude that the [Illinois] Appellate Court did not unrea-
sonably apply federal law.” The district court went on to
state that if it were “free to make an independent decision
[it] would conclude that the prosecutor’s comments were
sufficiently prejudicial to warrant vacating Bartlett’s
conviction,” but that “[t]he [Illinois] Appellate Court’s
assessment of the impact of the prosecutor’s comments on
the trial as a whole involved an issue as to which reason-
able minds could differ.”
  Bartlett now appeals the decision of the district court,
arguing that the Illinois Appellate Court’s conclusion that
Bartlett received a fair trial, despite the prosecutor’s
improper statement, is “contrary to, or involved an unrea-
sonable application of” Supreme Court precedent. Bartlett
specifically cites the cases of In re Winship, 397 U.S. 358
(1970); Cage v. Louisiana, 498 U.S. 39 (1990); Sullivan v.
Louisiana, 508 U.S. 275 (1993); and Darden v. Wainwright,
477 U.S. 168 (1986).


                      II. Discussion
  We review a district court’s denial of a habeas petition
de novo and the district court’s findings of fact for clear
error. Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir.
2005).
    Under the Anti-Terrorism and Effective Death Penalty
    Act (AEDPA), 28 U.S.C. § 2254(d), a federal court will
    not grant a writ of habeas corpus to a state prisoner
    with respect to any claim adjudicated on the merits
    in state court unless the state decision was (1) “contrary
6                                                  No. 05-1715

      to, or involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme
      Court of the United States” or (2) 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)(1-2) (2003). See also Williams v.
      Taylor, 529 U.S. 362, 402-03 (2000).
Id.
   When reviewing a state-court decision, this Court may
only issue a writ of habeas corpus if “the state court’s
application of governing federal law is . . . shown to be not
only erroneous, but objectively unreasonable.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (citations omitted). Although
“federal courts, even on habeas, have an independent
obligation to say what the law is,” Williams v. Taylor, 529
U.S. 362, 384 (2000) (quoting Wright v. West, 505 U.S. 277,
305 (1992) (O’Connor, J., concurring)), “habeas relief should
not be granted if the state court decision can be said to be
one of several equally-plausible outcomes.” Jackson v.
Frank, 348 F.3d 658, 662 (7th Cir. 2003) (citing Boss v.
Pierce, 263 F.3d 734, 742 (7th Cir. 2001)).
   The requirement that a habeas court find that the
state court’s decision “unreasonably applied clearly estab-
lished federal law” is a “difficult standard to meet; ‘unreason-
able’ means ‘something like lying well outside the bound-
aries of permissible differences of opinion.’ ” Id. (quoting
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).
  The Illinois Appellate Court limited its analysis of the
prosecutor’s comments to whether they constituted prosecu-
torial misconduct under the standards established in
Darden v. Wainwright, 477 U.S. 168 (1986).3 Darden


3
    Although the Illinois Appellate Court did not cite Darden,
                                                  (continued...)
No. 05-1715                                                       7

established a framework to evaluate “whether the prosecu-
tors’ comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’ ” 477
U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974)). The Darden test has two prongs. First, the
court evaluates whether the prosecution’s statements were
improper. Second, if the comments were improper, the court
asks whether the defendant was prejudiced by them.
Ruvalcaba v. Chandler, 416 F.3d 555, 565 (7th Cir. 2005).
  Bartlett argues that, “[g]iven the importance the Supreme
Court has placed on reasonable doubt, [In re Winship, 397
U.S. 358 (1970)],” the more stringent structural defect
analysis “regarding the quantification of reasonable doubt”
should be applied in this case. See Cage v. Louisiana, 498
U.S. 39 (1990) (reversal of conviction is appropriate where
a reasonable juror could have interpreted the judge’s
instruction to allow a finding of guilt based on a lesser
degree of proof than guilt beyond a reasonable doubt);4
Sullivan v. Louisiana, 508 U.S. 275 (1993) (constitutionally
deficient reasonable doubt instruction requires reversal of
conviction).
  Bartlett is correct in emphasizing the importance of the
proof beyond a reasonable doubt standard. The govern-
ment’s burden to prove an alleged criminal’s guilt beyond a
reasonable doubt is a “notion—basic in our law and rightly


3
  (...continued)
we agree with the district court’s assessment that the state court’s
review utilized the standards established in Darden.
4
  The Supreme Court subsequently abandoned the “reasonable
juror” standard. Boyde v. California, 494 U.S. 370 (1990). Boyde
established that the proper standard for evaluating a jury
instruction is whether a “reasonable likelihood” exists that the
jurors in a particular case misunderstood their duty because of an
erroneous instruction. See Estelle v. McGuire, 502 U.S. 62, 72 n.4
(1991) (citing Boyde, 494 U.S. at 379-80).
8                                                No. 05-1715

one of the boasts of a free society—[that] is a requirement
and a safeguard of due process of law in the historic,
procedural content of ‘due process.’ ” Winship, 397 U.S. at
362 (quoting Leland v. Oregon, 343 U.S. 790, 802-03 (1952)).
The question for this Court is whether the prosecutor’s
comments during closing argument were so egregious that
they deprived Bartlett of his due process right to be con-
victed only by proof beyond a reasonable doubt.
  In Cage, the Supreme Court evaluated a reasonable doubt
instruction given by the judge to the jury. The Supreme
Court found that “a reasonable juror” may have understood
the jury instruction “to allow a finding of guilt based on a
degree of proof below that required by the Due Process
Clause.” Cage, 498 U.S. at 41. Even were this case to
concern jury instructions rather than prosecutorial state-
ments, Bartlett advances an incorrect statement of the law
by relying upon Cage. Today, “a jury instruction is unconsti-
tutional if there is a reasonable likelihood that the jury
understood the instruction to allow conviction without proof
beyond a reasonable doubt.” Tyler v. Cain, 533 U.S. 656,
658 (2001) (emphasis added).
  In Sullivan, the Supreme Court found that an erroneous
jury instruction concerning the guilt beyond a reasonable
doubt standard is not subject to a harmless-error analysis.
508 U.S. at 281-82. Where there is a reasonable likelihood
that a jury does not believe that it must find proof beyond
a reasonable doubt to find the defendant guilty, the errone-
ous instruction is a “structural error” that may not be cured
through a harmless error analysis. Id.
  The instant case concerns a prosecutor’s argument, not an
erroneous jury instruction. Despite the essential differences
between a statement from the bench and a statement from
the prosecution, the petitioner asks this Court to find that
the facts in this case are “materially indistinguishable” from
No. 05-1715                                                      9

the facts of Sullivan and Cage.5
  Thus, Bartlett asks this Court to extend the holdings of
previous cases to apply to the facts of his case. While this
reasoning is typically acceptable, in a habeas proceeding
our review is restricted to ensuring that the state courts
reasonably apply “clearly established Federal law.” 28
U.S.C. § 2254(d); see also Dixon v. Snyder, 266 F.3d 693,
700 (7th Cir. 2001) (“An ‘unreasonable application’ of
Supreme Court precedent occurs when ‘the state court
identifies the correct governing legal rule . . . but unreason-
ably applies it to the facts of the particular state prisoner’s
case’ or ‘if the state court either unreasonably extends a
legal principle from [the Court’s] precedent to a new context
where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.’ ”
(citing Williams, 529 U.S. at 407; Jackson v. Miller, 260
F.3d 769 (7th Cir. 2001)). While we strongly disapprove of
the prosecution’s clumsy attempts to discuss the burden of
proof, these comments simply could not have poisoned the
jury’s understanding in the same manner an erroneous jury
instruction would have.
  The Supreme Court has never extended the application of
Cage and Sullivan to prosecutors’ misstatements and we
believe it would be inappropriate to do so in the instant
case. As always, we will analyze the petitioner’s prosecuto-
rial misconduct claims under the standards set forth in
Darden.
    [A]rguments of counsel generally carry less weight with
    a jury than do instructions from the court. The former
    are usually billed in advance to the jury as matters of
    argument, not evidence, . . . and are likely viewed as



5
  As stated above, Sullivan and Cage no longer represent the
appropriate test for jury instructions. See Estelle, 502 U.S. at 72
n.4 (citing Boyde, 494 U.S. at 379-80).
10                                                 No. 05-1715

     the statements of advocates; the latter, we have often
     recognized, are viewed as definitive and binding state-
     ments of the law. See Carter v. Kentucky, 450 U.S. 288,
     302-04, and n.20 (1981); Quercia v. United States, 289
     U.S. 466, 470 (1933); Starr v. United States, 153 U.S.
     614, 626 (1894). . . . This is not to say that prosecutorial
     misrepresentations may never have a decisive effect on
     the jury, but only that they are not to be judged as
     having the same force as an instruction from the court.
     And the arguments of counsel, like the instructions of
     the court, must be judged in the context in which they
     are made. Greer v. Miller, 483 U.S. 756, 766 (1987);
     Darden v. Wainwright, 477 U.S. 168, 179 (1986); United
     States v. Young, 470 U.S. 1, 11-12 (1985); see also
     Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).
Boyde v. California, 494 U.S. 370, 384-85 (1990).
  Therefore, we will analyze the prosecution’s comments
under Darden, rather than under the Cage and Sullivan
standard the petitioner suggests. Darden instructed a
reviewing court to make two inquiries concerning prosecuto-
rial statements: 1) Were the prosecutor’s statements
improper; and 2) Was the defendant prejudiced? See
Ruvalcaba, 416 F.3d at 565.
  The government does not dispute that the prosecution’s
statements were improper. Therefore, we need only evalu-
ate whether the defendant was prejudiced. Under the
second prong of Darden, the question of whether a new trial
is constitutionally required depends on six factors:
     (1) whether the prosecutor misstated 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.
No. 05-1715                                                11

Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000)
(citing Darden, 477 U.S. at 181-82; United States v.
Pirovolos, 844 F.2d 415, 426 (7th Cir. 1988)).


(1) Whether the prosecutor misstated the evidence.
  Bartlett relies upon the prosecutor’s mention of “30%” as
evidence that he misstated the standard of proof. While the
prosecution’s statements were misguided, they were not as
misleading as the petitioner alleges. Taken in context, the
prosecution did not ask the jury to convict if they were only
70% sure of Bartlett’s guilt.
  The Illinois Appellate Court found that although the
prosecution’s statements “appear[ ] at first glance to be
confusing and improper,” “a close reading of the State’s
comments here does not indicate that the state improperly
attempted to compare the ‘beyond a reasonable doubt
standard’ to a 30% completed puzzle.” People v. Bartlett, No.
1-00-3404, slip op. at 31-32 (Ill. App. Ct. 1st Dist. Sep. 24,
2002). This is a reasonable interpretation of the prosecu-
tion’s comments, and certainly does not lie “outside the
boundaries of permissible differences of opinion.” Jackson
v. Frank, 348 F.3d at 662 (citing Hardaway, 302 F.3d at
762).


(2) Whether the remarks implicate specific rights of the
    accused.
  While the right to be convicted only upon proof beyond
a reasonable doubt is a constitutional guarantee of extra-
ordinary importance, a prosecutor’s remarks simply do not
implicate the rights of the accused to the same extent that
jury instructions do. While incorrect jury instructions,
which improperly alter the burden of proof, directly impli-
cate the due process clause, Winship, 397 U.S. at 364, the
same cannot be said of misguided prosecutorial commen-
tary.
12                                              No. 05-1715

(3) Whether the defense invited the response.
  Where defense counsel has “invited” a response, a prosecu-
tor’s otherwise improper remarks will not warrant reversal
of a conviction if they do nothing more than “right the
scale.” United States v. Young, 470 U.S. 1, 12-13 (1985). In
this case, the defendant’s closing argument had compared
the prosecution’s burden to a “brick mortar wall,” from
which the State was required to remove every brick.
Although Bartlett argues that the prosecution went beyond
a response to his “brick wall” comments by using the “Eiffel
Tower” analogy, such analogies need not involve the same
theoretical items (brick wall or Eiffel Tower) to be consid-
ered responsive.
  While reasonable minds can dispute the relative weight
of these competing inappropriate analogies, the state
appellate court found, “In light of the fact that defendant’s
counsel analogized the State’s burden of proof to a ‘brick
wall’ and characterized it as ‘weighty,’ it was not inappro-
priate for the State to respond to those characterizations
during its rebuttal argument.” People v. Bartlett, No. 1-00-
3404, slip op. at 31 (Ill. App. Ct. 1st Dist. Sep. 24, 2002).
While the state appellate court went on to describe the
State’s comments as “confusing and improper” at “first
glance,” there was nothing unreasonable about the Illinois
Appellate Court’s assessment that the prosecution’s com-
ments were within the range of permissible responses.


(4) The trial court’s instructions.
  The trial court’s instructions stated, “Neither opening
statements nor closing arguments are evidence, and any
statement or argument . . . which is not based on the
evidence should be disregarded.” The trial court also
instructed the jury that, “The state has the burden of
proving the guilt of the defendant beyond a reasonable
doubt[.]”
No. 05-1715                                                 13

  Despite these instructions, Bartlett claims that the trial
court erred by failing to provide a curative instruction to
counteract the prosecution’s statements. While the trial
court did not specifically address the misleading comments
by the prosecutor, this failure alone does not constitute a
denial of due process. As stated previously, juries are
capable of distinguishing between instructions given by
the court and arguments made by the prosecution. It would
be folly for this Court to find that an offhand and arguably
prejudicial argument made by an attorney is of greater
weight than a court’s instructions.


(5) The weight of the evidence against the defendant.
  The Illinois Appellate Court found “that none of the other
complained-of comments in defendant’s brief prejudiced
defendant, especially in light of the strong identification
evidence that was presented against defendant.” People v.
Bartlett, No. 1-00-3404, slip op. at 31 (Ill. App. Ct. 1st Dist.
Sep. 24, 2002). While the petitioner is correct that the jury
must assess the credibility of witnesses, see Goldman v.
United States, 245 U.S. 474, 477 (1918), the Illinois Appel-
late Court made a reasonable determination that given the
total weight of the evidence, the prosecutor’s comments did
not prevent the jury from understanding its role, making a
proper credibility determination, and assessing guilt beyond
a reasonable doubt.
14                                               No. 05-1715

(6) The defendant’s opportunity to rebut.
  The defendant had no opportunity to answer the com-
ments made in the prosecution’s rebuttal argument. The
petitioner argues that “[t]his lack of ability to respond was
exacerbated by the fact that the trial judge overruled
defense counsel’s objections to the State’s comments and
failed to issue curative instructions.” However, Bartlett only
objected to the prosecution’s first mention of a brick wall, a
statement made in response to his own misguided analogy.
Bartlett’s claim that the trial court implicitly endorsed the
prosecution’s “30%” statement by overruling his objection
rings hollow, as he never properly registered an objection to
the relevant comments.
  Although no specific opportunity for rebuttal was pro-
vided to the defendant, the trial court’s jury instructions,
explaining the prosecution’s burden, were more
than sufficient to counteract the prosecutor’s wrongheaded
and inarticulate statements.
  The district court stated that were it “free to make an
independent decision, we would conclude that the prosecu-
tor’s comments were sufficiently prejudicial to warrant
vacating Bartlett’s conviction.” Rather than render a
prediction concerning what our independent judgment of
this case might be, we limit our affirmance to the district
court’s ultimate conclusion that regardless of whether
we agree with the Illinois Appellate Court’s conclusion, any
disagreements we may have are “not enough to render that
court’s decision objectively unreasonable” under 28 U.S.C.
§ 2254.


                     III. Conclusion
  For the above stated reasons, we AFFIRM the district
court’s denial of the petition for a writ of habeas corpus.
No. 05-1715                                         15

A true Copy:
      Teste:

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




               USCA-02-C-0072—6-21-06
