                                In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 16-2273
MIGUEL ADORNO,
                                                   Petitioner-Appellee,
                                  v.

MICHAEL MELVIN,
                                                Respondent-Appellant.
                     ____________________

             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 14 C 00791 — John J. Tharp, Jr., Judge.
                     ____________________

  ARGUED JANUARY 12, 2017 — DECIDED DECEMBER 1, 2017
               ____________________

   Before BAUER, SYKES, and HAMILTON, Circuit Judges.
    SYKES, Circuit Judge. Miguel Adorno, an Illinois prisoner,
was convicted of attempted murder using a firearm. On
direct appeal he challenged certain remarks by the trial
judge about the state’s burden of proof. More particularly, he
argued that the judge’s comments—delivered impromptu
during voir dire—invited the jury to convict on less than the
reasonable-doubt burden of proof required by the Constitu-
tion’s guarantee of due process of law. He also claimed that
2                                                 No. 16-2273

the judge’s remarks violated state law. The Illinois Court of
Appeals addressed only the state-law argument and rejected
the claim; the court made no reference to federal law.
Adorno then sought federal habeas relief under 28 U.S.C.
§ 2254. Applying de novo review, the district judge found a
due-process violation and granted the petition.
    We reverse the judgment. Because the state court did not
specifically address Adorno’s federal claim, our first task is
to decide whether the Richter presumption applies. See
Harrington v. Richter, 562 U.S. 86 (2011). When a state prison-
er presents a federal claim to a state court and the court
denies relief without explanation, Richter requires a federal
habeas court to presume that the state court adjudicated the
claim on the merits. Id. at 99. The presumption triggers
deferential review under § 2254(d); the federal court must
give the state-court judgment the benefit of any arguments
or theories that could have supported the state court’s judg-
ment. Id. at 102.
   The Richter presumption is rebuttable, but we do not
need to decide whether it has been rebutted here. Even
under de novo review, Adorno’s claim fails. There is no
reasonable likelihood that the jury convicted him on less
than the reasonable-doubt standard.
                       I. Background
    While attending a house party in the Hermosa neighbor-
hood in Chicago, Adorno was accused of stealing an iPod
and a laptop from one of the hosts. After the laptop was
retrieved from the back seat of the car Adorno arrived in, he
and his friends were asked to leave. A fistfight ensued
between Adorno and Jeffery Nagamine, the host’s brother.
No. 16-2273                                                  3

According to several witnesses, Adorno threatened to kill
Nagamine and retrieved a gun from his friend’s car to make
good on the threat. As the other guests retreated back into
the house, Adorno fired several shots into the crowd. The
partygoers were lucky; no one was killed and only one
person was hit, sustaining a gunshot wound to the arm.
   Adorno was arrested and initially told police that he
knew nothing about the house party. He claimed to have
spent the entire evening with his mother. Later Adorno
admitted his involvement in the shooting but claimed that
he fired his gun at the crowd in self-defense. The State’s
Attorney charged him with attempted murder in the first
degree while armed with a firearm.
    The case proceeded to jury trial. During voir dire, the
judge preliminarily informed the venire about the presump-
tion of innocence and the burden of proof in criminal cases.
He told the prospective jurors that Adorno was presumed
innocent and that the presumption could be overcome only
if the state proved his guilt beyond a reasonable doubt. The
judge explained that Adorno was not required to present
any evidence on his own behalf but could instead rely
entirely on the presumption of innocence. The judge then
discussed the standard of proof in greater detail:
      Illinois does not define reasonable doubt, but
      any of you who may have sat on a civil jury
      there’s a preponderance of the evidence, rea-
      sonable doubt is the highest burden of proof in
      our country and in our [s]tate. Those of you
      who may have sat on civil cases, preponder-
      ance of the evidence, if you look at this like a
      scale, all you have to do is tilt it. So the defini-
4                                                  No. 16-2273

       tion of preponderance of the evidence is, it’s
       more likely than not that the event occurred.
       Again, Illinois doesn’t define reasonable doubt.
       That’s up for you to decide in words, but in
       analogy to the scale thing, you would have to
       tip it like this, so that would be some insight
       into what proof beyond a reasonable doubt
       would be.
The last sentence in this passage implies that a nonverbal
hand gesture accompanied the judge’s “scale” analogy, but
no record was made of it.
   A jury was seated, and at the close of the evidence, the
judge read formal instructions about the presumption of
innocence, the elements of the charged crime, and the state’s
burden to prove every element beyond a reasonable doubt.
The jury convicted Adorno as charged, and the judge im-
posed a sentence of 30 years.
    On direct appeal Adorno challenged the judge’s attempt
to explain the reasonable-doubt standard during voir dire.
Citing Victor v. Nebraska, 511 U.S. 1 (1994), he argued that the
judge’s remarks invited the jury to convict on less than the
reasonable-doubt standard required by the federal Constitu-
tion’s guarantee of due process. His argument relied almost
exclusively on federal law, but he also alluded to Illinois
common law, which precludes trial judges from defining
reasonable doubt, and to Illinois Supreme Court Rule 431(b),
which requires judges to verify that the jurors understand
and accept the reasonable-doubt standard. He raised other
challenges as well, though none are relevant here.
No. 16-2273                                                    5

    The state appellate court affirmed. In evaluating
Adorno’s challenge to the voir dire remarks by the judge, the
court relied exclusively on state law and treated the claim as
one alleging ordinary trial error rather than an error of
constitutional magnitude. That is, the court applied the state-
law framework for evaluating improper judicial comments
at trial and concluded that because the remarks were not
prejudicial, Adorno was not entitled to relief.
    Adorno skipped state postconviction proceedings and
moved directly to federal court seeking habeas relief under
§ 2254, repeating his federal constitutional challenge to the
judge’s voir dire remarks. The district judge determined that
the state court had not adjudicated Adorno’s federal claim
on the merits and thus reviewed it de novo, without the
deference normally required by § 2254(d)(1). The judge
concluded that the state trial judge’s remarks improperly
invited the jury to convict on a constitutionally insufficient
standard of proof. Accordingly, the judge granted Adorno’s
§ 2254 petition and ordered Illinois to release him or file
notice within 30 days of its intent to retry the case against
him. The State appealed.
                        II. Discussion
    We review the judge’s § 2254 ruling de novo. Thompkins v.
Pfister, 698 F.3d 976, 983 (7th Cir. 2012). A state court’s deci-
sion on a prisoner’s federal claim ordinarily is entitled to
substantial deference on federal habeas review; we will not
set it aside unless it “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law” or
“was based on an unreasonable determination of the facts in
light of the evidence presented in the [s]tate court proceed-
6                                                            No. 16-2273

ing.” 28 U.S.C. § 2254(d)(1), (2). The AEDPA 1 standard is
deliberately difficult, setting a high bar for relief; the prison-
er must demonstrate that the state court’s ruling was “so
lacking in justification that there was an error well under-
stood and comprehended in existing law beyond any possi-
bility for fairminded disagreement.” Richter, 562 U.S. at 103.
    But deferential review under AEDPA “applies only to
claims that were actually ‘adjudicated on the merits in [s]tate
court proceedings.’” Harris v. Thompson, 698 F.3d 609, 623
(7th Cir. 2012) (quoting § 2254(d)). For all other claims, we
apply the pre-AEDPA standard of 28 U.S.C. § 2243 and
review de novo. Id.
     In its decision resolving Adorno’s direct appeal, the
Illinois Appellate Court did not explicitly address the federal
claim. Though Adorno’s briefing squarely challenged the
trial judge’s voir dire remarks on federal due-process
grounds, the court made no mention of federal law in its
opinion. The court’s only hint of a nod to a claim based on
federal law is a single sentence that contains faint echoes of
the Victor standard: “We do not believe that the court’s
comments during voir dire could reasonably be construed as
inviting the jury to convict [the] defendant based on less
than the reasonable doubt standard.”
    Even when a federal claim is wholly unaddressed by the
state court, however, a question remains whether it was
“adjudicated on the merits” for purposes of § 2254(d).
Where, as here, a state prisoner adequately presents a feder-
al claim to a state court and the court denies relief, the
Supreme Court has instructed us to presume that the federal

1   The Antiterrorism and Effective Death Penalty Act of 1996.
No. 16-2273                                                    7

claim was adjudicated on the merits “in the absence of any
indication or state-law procedural principles to the contra-
ry.” Richter, 562 U.S. at 99; see also Keith v. Schaub, 772 F.3d
451, 454 (7th Cir. 2014). In Johnson v. Williams, 568 U.S. 289,
292 (2013), the Court held that the Richter presumption
applies in cases like this “when a defendant convicted in
state court attempts to raise a federal claim, either on direct
appeal or in a collateral state proceeding, and a state court
rules against the defendant and issues an opinion that
addresses some issues but does not expressly address the
federal claim in question.” See also Lee v. Avila, 871 F.3d 565,
571 (7th Cir. 2017).
    Although “the Richter presumption is a strong one that
may be rebutted only in unusual circumstances, it is not
irrebuttable.” Williams, 568 U.S. at 302. The presumption
may give way if “the state court relies exclusively on state
law, and the state standard is less protective than the federal
one”; or if the governing federal standard was simply “‘men-
tioned in passing in a footnote or … buried in a string cite’”;
or if the prisoner can show that the claim was overlooked
“‘as a result of sheer inadvertence.’” Brady v. Pfister, 711 F.3d
818, 825 (7th Cir. 2013) (quoting Williams, 568 U.S. at 301–03).
We do not need to decide whether the Richter presumption
has been rebutted here; the due-process claim fails on plena-
ry review.
    The Fourteenth Amendment’s guarantee of due process
includes the requirement in criminal cases that the state
prove every element of a charged offense beyond a reasona-
ble doubt. In re Winship, 397 U.S. 358, 364 (1970). As a matter
of Illinois common law, trial judges are instructed not to
attempt to define reasonable doubt for the jury. People v.
8                                                  No. 16-2273

Thomas, 547 N.E.2d 735, 741 (Ill. App. Ct. 1989). In contrast,
“the [federal] Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a
matter of course.” Victor, 511 U.S. at 5. Accordingly, the voir
dire remarks by the trial judge in Adorno’s case will amount
to federal constitutional error only if “there is a reasonable
likelihood that the jury understood the [remarks] to allow
conviction based on proof insufficient to meet the
[reasonable-doubt] standard.” Id. at 6.
    There is no reasonable likelihood of that here. The trial
judge expressly recognized that under Illinois law there is no
need for a judicial definition of the term “reasonable doubt.”
He told the prospective jurors that it was “up for you to
decide in words” what the term means. That was not, as
Adorno argues, an invitation to the jury to convict on some
lesser standard of proof.
    The judge’s reference to the civil burden of proof using
the metaphor of a scale likewise did not invite the jurors to
convict on a constitutionally insufficient standard of proof.
The judge invoked the civil standard solely for the purpose
of distinguishing it from the criminal reasonable-doubt
standard, explaining that proof by preponderance of the
evidence is insufficient for criminal cases. And he empha-
sized that “reasonable doubt is the highest burden of proof
in our country and in our [s]tate.” Finally, at the close of the
case, the judge formally instructed the jury on the presump-
tion of innocence, the elements of the offense, and the state’s
burden to prove each of the elements beyond a reasonable
doubt. The propriety of those instructions was and is unchal-
lenged.
No. 16-2273                                                   9

    The judge’s voir dire comments must be viewed “in the
context of the entire charge,” not in isolation. Jones v. United
States, 527 U.S. 373, 391 (1999). Taken as a whole, nothing in
the judge’s remarks creates a reasonable likelihood that the
jury “underst[ood] the phrase [‘reasonable doubt’] to mean
something less than the very high level of probability re-
quired by the Constitution in criminal cases.” Victor, 511 U.S.
at 14. Put slightly differently, the judge’s remarks do not
suggest that the jurors would have understood that they
were free to convict Adorno on less than proof beyond a
reasonable doubt. Because the conviction was not tainted by
a due-process violation, the order granting habeas relief was
unwarranted and is
                                                     REVERSED.
10                                                   No. 16-2273


    BAUER, Circuit Judge. Concurring. Attempts at defining
reasonable doubt have always occasioned problems. Both
“reasonable” and “doubt” are words in common usage and are
constantly used in the language of law. No matter how glib the
speaker, it is necessary to use other words that require further
definition in trying to refine the terms "reasonable" or "doubt."
The language used by this learned trial judge makes that point
clearly.
    Illinois Pattern Instructions and the Seventh Circuit
Criminal Instructions make this point emphatically. Judges
and lawyers must accept the fact that we select jurors who
presume to be reasonable and who understand through years
of normal living what is meant by “doubt.”
     It is with a sore heart then, that I concur in the opinion.
