225 F.3d 826 (7th Cir. 2000)
Jamaljah Aliwoli, Petitioner-Appellant,v.Lamark Carter, Warden, Respondent-Appellee.
No. 99-2314
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 9, 2000Decided August 29, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 96 C 2283--Suzanne B. Conlon, Judge.[Copyrighted Material Omitted]
Before Bauer, Posner, and Rovner, Circuit Judges.
Bauer, Circuit Judge.


1
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.


2
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.


3
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.


4
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.


5
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).


6
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.


7
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).


8
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.


9
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."


10
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."


11
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).


12
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.


13
"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.


14
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.


15
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


16
The district court is affirmed.



Notes:


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.
Note:


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.


