In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3461

Kevin Rittenhouse,

Petitioner-Appellant,

v.

John C. Battles,

Respondent-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 3286--Jeanne E. Scott, Judge.

Argued April 12, 2001--Decided August 27, 2001


  Before Flaum, Chief Judge, and Manion and
Kanne, Circuit Judges.

  Kanne, Circuit Judge. Kevin Rittenhouse
appeals the district court’s denial of
his petition for a writ of habeas corpus.
In addition to arguing that the district
court incorrectly denied his petition
with respect to the two claims in the
certificate of appealability, Rittenhouse
also asks us to amend the certificate to
include two other claims. For the reasons
stated below, we will not amend the
certificate of appealability granted by
the district court, and we deny
Rittenhouse’s petition for a writ of
habeas corpus.

I.   History

  A jury found Kevin Rittenhouse guilty of
three counts of first degree murder,
three counts of aggravated criminal
sexual assault, three counts of criminal
sexual assault, one count of concealment
of a homicidal death, and one count of
obstruction of justice, in connection
with the rape and murder of Mal Chaplin.
The murder and sexual assault counts were
based on Rittenhouse’s criminal
responsibility for the acts of Shawn
Chaszar, who raped Chaplin, and Jeffery
Whitehead, who also raped and then
murdered Chaplin in an apartment in
Normal, Illinois. At Rittenhouse’s trial
the State provided evidence indicating
that Rittenhouse was in the apartment
while these crimes were being committed,
that he witnessed Whitehead and Chaszar
raping Chaplin, and that he took
affirmative steps to conceal Chaplin’s
rape and murder after the crimes were
committed. Rittenhouse was convicted by a
jury and subsequently sentenced to
consecutive terms of twenty years for one
count of first degree murder and six
years for each count of aggravated
criminal sexual assault, for a total of
thirty-eight years incarceration.

  Rittenhouse appealed to the Illinois
Appellate Court challenging the validity
of his conviction and sentence. The
appellate court rejected his claims. See
People v. Rittenhouse, No. 4-93-1083,
slip. op. at 22 (Ill. App. Ct. Feb. 10,
1995). Rittenhouse then filed a petition
for leave to appeal to the Illinois
Supreme Court, raising the same claims
brought before the court of appeals. The
Illinois Supreme Court denied
Rittenhouse’s petition. See People v.
Rittenhouse, 657 N.E.2d 634 (Ill. 1995).

  Rittenhouse next initiated collateral
review proceedings by filing a post-
conviction petition in Illinois state
trial court, alleging that he was denied
the effective assistance of trial and
appellate counsel due to their failure to
raise certain issues regarding the
instructions given to the jury. He
subsequently filed a supplemental
petition as well. Both of these petitions
were denied. Rittenhouse appealed the
trial court’s ruling, asserting five
different claims. The Illinois Appellate
Court affirmed the denial of
Rittenhouse’s post-conviction petition.
See People v. Rittenhouse, No. 4-97-0503,
slip op. at 18 (Ill. App. Ct. March 17,
1998). Petitioner again filed a petition
for leave to appeal to the Illinois
Supreme Court, and that petition was
subsequently denied. See People v.
Rittenhouse, 699 N.E.2d 1036 (Ill. 1998).

  Rittenhouse then filed the present
petition for a writ of habeas corpus
pursuant to 28 U.S.C. sec. 2254 in the
United States District Court for the
Central District of Illinois. In his
petition, Rittenhouse claimed that: (1)
the trial court’s instructions on the
charges of murder and sexual assault
invaded the province of the jury and
denied Rittenhouse his due process rights
under the Fourteenth Amendment; (2) he
was denied effective assistance of
counsel when counsel failed to notice and
object to the improper instructions, and
failed to offer an alternative
instruction that did not contain a
presumption of legal responsibility; (3)
he was denied the right to effective
assistance of trial counsel by counsel’s
failure to adequately confer with him
regarding a plea bargain offer and by
failing to inform him that consecutive
sentences were mandatory or allowed; and
(4) the trial court’s refusal to instruct
the jury on Rittenhouse’s mere presence
theory of defense was a denial of his
fundamental right to due process and
equal protection.

  The district court denied Rittenhouse’s
petition for habeas corpus. In reaching
this decision, the court concluded that
Rittenhouse’s challenge to the jury
instructions on the charges of murder and
sexual assault and his claim of
ineffective assistance of trial counsel
were procedurally defaulted. With regard
to his two remaining claims, the district
court found that the Illinois Appellate
Court’s analysis on these issues was
"neither an incorrect statement of
Supreme Court precedent nor an
unreasonable application of the law to
the facts." Rittenhouse v. O’Sullivan,
No. 98-3286, slip op. at 16 (C.D. Ill.
Aug. 22, 2000). Rittenhouse then filed a
petition for a certificate of
appealability, presenting two issues he
wished to raise on appeal to this court:
(1) that the trial court’s instructions
on the charges of murder and sexual
assault invaded the province of the jury
and denied Rittenhouse of his due process
rights under the Fourteenth Amendment;
and (2) that the trial court’s refusal to
instruct the jury on Rittenhouse’s mere
presence theory of defense was a denial
of his fundamental right of due process
and equal protection under the Fourteenth
Amendment. The district court granted
Rittenhouse’s petition for a certificate
of appealability on these issues. See
Rittenhouse v. O’Sullivan, No. 98-3286,
slip op. at 3 (C.D. Ill. Sept. 14, 2000).

II.   Analysis

A. Request for Amendment of the
Certificate of Appealability
  Rittenhouse raises two other claims that
are not included in the district court’s
certificate of appealability. He asks us
to consider his claims that: (1) he was
denied the effective assistance of trial
counsel when his attorney failed to
object to instructions that he contends
contained a mandatory presumption of
legal responsibility and (2) he was
deprived of the effective assistance of
appellate counsel when his counsel did
not raise an issue regarding the trial
court’s failure to instruct the jury on
his mere presence theory of defense.

  In accordance with 28 U.S.C. sec.
2253(c), a habeas petitioner may appeal
only those issues for which a certificate
of appealability has been granted. See
Porter v. Gramley, 112 F.3d 1308, 1312
(7th Cir. 1997). Thus, the State asks
this court not to consider the two claims
included in Rittenhouse’s brief that were
not encompassed by the certificate of
appealability. This court has recently
explained, however, that "we shall
continue to consider requests to amend a
certificate of appealability even when
they are presented in a petitioner’s
briefs to this court." Ouska v. Cahill-
Masching, 246 F.3d 1036, 1046 (7th Cir.
2001). A party can make such a request by
specifically asking us to consider the
issue in its brief or "by simply
including issues in its briefs that were
not specified in the certificate." Id. at
1045. In this case, Rittenhouse did both:
he included his additional claims in his
initial brief without requesting that we
amend the certificate, and in his reply
brief, he explicitly asked us to consider
these other issues.

  In order to issue a certificate of
appealability "[w]here a district court
has rejected [a habeas petitioner’s]
constitutional claims on the merits, the
showing required to satisfy sec. 2253(c)
is straightforward: The petitioner must
demonstrate that reasonable jurists would
find the district court’s assessment of
the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473,
484, 120 S. Ct. 1595, 146 L. Ed. 2d 542
(2000). In this case, the district court
rejected Rittenhouse’s claim that he was
denied effective assistance of trial
counsel when his attorney failed to
object to certain instructions that
allegedly contained a mandatory
presumption of legal responsibility.
Thus, Rittenhouse must now demonstrate
that reasonable jurists would find the
district court’s conclusion that he was
not denied the effective assistance of
trial counsel to be debatable or wrong.
He has made no such showing.

  Rittenhouse’s first ineffective
assistance claim stems from a phrase that
was included in nine different
instructions submitted to the jury at
Rittenhouse’s trial to which his trial
counsel did not object:

  To sustain the charge of criminal sexual
assault as charged in count IV involving
the penis of Jeffery Whitehead and vagina
of Mal Chaplin, the State must prove the
following propositions:

  First: That Whitehead, one for whose
conduct the defendant is legally
responsible, committed an act of sexual
penetration upon Mal Chaplin . . . .

Rittenhouse asserts that the emphasized
language contains an improper presumption
of legal responsibility and that this
error is magnified by the fact that his
culpability for the sexual assault and
murder charges was based on a theory of
legal accountability for the actions of
Whitehead and Chaszar. Thus, Rittenhouse
claimed before the Illinois courts that
he was provided with ineffective
assistance of trial counsel when his
counsel failed to object to the inclusion
of the emphasized language in the jury
instructions.

  In reviewing Rittenhouse’s habeas
petition, the district court evaluated
the Illinois Appellate Court’s decision
rejecting Rittenhouse’s claim of
ineffective assistance of counsel. See
Rittenhouse, No. 98-3286, slip op. at 5-
14. In so doing, the district court
reviewed the appellate court’s use of the
framework provided by the Supreme Court
in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), to review ineffective assistance
of counsel claims. The district court
likewise reviewed the appellate court’s
application of Strickland to the facts of
this case, as well as its ultimate
conclusion that the jury instructions:
taken as a whole, informed the jury of
its responsibility to determine, first,
whether defendant was accountable for the
conduct of his codefendants in sexually
assaulting the victim and, second, once
it found defendant accountable, to find
defendant guilty beyond a reasonable
doubt. These instructions did not direct
a verdict in favor of the State. Thus,
defense counsel cannot be deemed
ineffective for failing to object to the
State’s tendered instructions.

People v. Rittenhouse, No. 4-97-0503,
slip op. at 9 (Ill. App. Ct. March 17,
1998). The district court concluded that
"[t]he Appellate Court properly stated
the standard for ineffective assistance
of counsel set forth in . . .
Strickland," Rittenhouse v. O’Sullivan,
No. 98-3286, slip op. at 13 (C.D. Ill.
Sept. 14, 2000), and that the Illinois
court’s conclusions were not "an
unreasonable application of Supreme Court
precedent to the facts," id. at 14. We
agree with the district court’s analysis.

  Although we acknowledge that the
language Rittenhouse challenges might
have been worded more clearly, other por
tions of the instructions ensured that
the jury was informed that it could not
presume that Rittenhouse was legally
responsible for the actions of Whitehead
and Chaszar:

It is not necessary for the State to show
that it was or may have been the original
intent of the defendant or another for
whose conduct the defendant is legally
responsible to kill Mal Chaplin. The
State still must prove that the defendant
had the requisite intent to promote or
facilitate the commission of the
underlying offense of criminal sexual
assault in order to hold the defendant
legally responsible for first degree
murder, based upon the commission of
criminal sexual assault.

(emphasis added). Additionally, the
instructions reiterated to the jury that
it was the State’s burden to prove each
element of every charge beyond a
reasonable doubt, which included
Rittenhouse’s legal responsibility for
the actions of Chaszar and Whitehead.
Furthermore, Rittenhouse’s counsel, as
well as the State’s Attorney, emphasized
in closing argument that the question for
the jury was whether Rittenhouse could be
held legally responsible for the actions
of his co-defendants. Thus, we find that
the jury instructions Rittenhouse
challenges, taken as a whole, were not
improper, and that his counsel’s failure
to object to this language was not "so
serious that [he] was not functioning as
the ’counsel’ guaranteed the defendant by
the Sixth Amendment" or that Rittenhouse
was "prejudiced" by his counsel’s
performance. Strickland, 466 U.S. at 687.
Therefore, we find that the district
court’s assessment of the Illinois
Appellate Court’s determination that
Rittenhouse’s counsel did not provide
ineffective assistance of counsel in
failing to object to these instructions
is not an assessment that reasonable
jurists would find to be incorrect or
even debatable. Consequently, we will not
amend the district court’s certificate of
appealability to include this issue.

  Rittenhouse also asks us to amend the
certificate of appealability to include
his claim that he was deprived of the
effective assistance of appellate counsel
when his attorney did not challenge the
trial court’s failure to instruct the
jury on his mere presence theory of
defense. The problem with this claim,
however, is that although Rittenhouse
presented it to the Illinois courts
during the course of his post-conviction
proceedings, he did not present it when
he filed his petition for a writ of
habeas corpus in the district court.
Thus, he has waived this claim on appeal.
See Drake v. Clark, 14 F.3d 351, 355 (7th
Cir. 1994) ("[T]he law is clear that any
claim not presented to the district court
is waived on appeal.") (internal
quotation omitted). Therefore, we decline
to amend the certificate of appealability
granted by the district court, and we
will now turn to the claims included in
that certificate.

B.   Rittenhouse’s Certified Claims

  When reviewing an appeal from a district
court’s ruling on a petition for a writ
of habeas corpus, we review that court’s
factual findings for clear error and its
rulings on issues of law de novo. See
Ellsworth v. Levenhagen, 248 F.3d 634,
638 (7th Cir. 2001). Because
Rittenhouse’s habeas petition was filed
after the effective date of the
Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), we review his
claims pursuant to 28 U.S.C. sec. 2254 as
amended by that Act. See Lindh v. Murphy,
521 U.S. 320, 322-23, 117 S. Ct. 2059,
138 L. Ed. 2d 481 (1997); Ouska v.
Cahill-Masching, 246 F.3d 1036, 1044 (7th
Cir. 2001). Thus, we are permitted to
grant his petition for a writ of habeas
corpus only if the claims he now presents
were adjudicated by the Illinois courts
on the merits in such a manner that
"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." sec.
2254(d)(1).

  The Supreme Court has explained that a
state court decision is contrary to
clearly established precedent "if the
state court applies a rule that
contradicts the governing law set forth
in [the Court’s] cases" or "if the state
court confronts a set of facts that are
materially indistinguishable from a
decision of [the Court] and nevertheless
arrives at a result different from [the
Court’s] precedent." Williams v. Taylor,
529 U.S. 362, 405-06, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000). The Court has
likewise explained that a state court
decision is an unreasonable application
of its precedent if "the state court
identifies the correct governing legal
principle from [the Court’s] decisions
but unreasonably applies that principle
to the facts of the prisoner’s case." Id.
at 413. While a federal court reviews de
novo whether a state court ruling was
"contrary to" clearly established law,
see Ouska, 246 F.3d at 1044, "under the
’unreasonable application’ clause, ’a
federal habeas court may not issue the
writ simply because that court concludes
in its independent judgment that the
relevant state-court decision applied
clearly established federal law
erroneously or incorrectly. Rather, that
application must also be unreasonable.’"
Morgan v. Krenke, 232 F.3d 562, 565-66
(7th Cir. 2000) (quoting Williams, 529
U.S. at 409).

  Before reviewing the merits of
Rittenhouse’s claims, we must determine
whether he properly presented these
claims to the Illinois courts. If he
failed to "exhaust all available state
remedies or raise all claims before the
state courts, his petition must be denied
without considering its merits." Dressler
v. McCaughtry, 238 F.3d 908, 912 (7th
Cir. 2001). We have explained that the
"requirement that state courts have the
first opportunity to cure a claim of
continued confinement in an
unconstitutional fashion stems from the
understanding that state courts are
equally obliged to follow federal law and
from the desire for comity between state
and federal court systems." Spreitzer v.
Schomig, 219 F.3d 639, 645 (7th Cir.
2000). To satisfy this requirement, a
petitioner "must present both the
operative facts and the legal principles
that control each claim to the state
judiciary; otherwise, he will forfeit
federal review of the claim." Wilson v.
Briley, 243 F.3d 325, 327 (7th Cir.
2001). Additionally, our cases have
articulated four factors to consider in
determining whether a habeas petitioner
has fairly presented his claims in state
court:

(1) whether the petitioner relied on
federal cases that engage in
constitutional analysis; (2) whether the
petitioner relied on state cases which
apply a constitutional analysis to
similar facts; (3) whether the petitioner
framed the claim in terms so particular
as to call to mind a specific
constitutional right; and (4) whether the
petitioner alleged a pattern of facts
that is well within the mainstream of
constitutional litigation.

Id. at 327. In applying these factors,
"[t]he bottom line is that the task of
the habeas court in adjudicating any
issue of fair presentment is assessing,
in concrete, practical terms, whether the
state court was sufficiently alerted to
the federal constitutional nature of the
issue to permit it to resolve that issue
on a federal basis." Ellsworth v.
Levenhagen, 248 F.3d 634, 639 (7th Cir.
2001) (quotations omitted).

  The district court concluded that
Rittenhouse’s claim that the trial
court’s instructions denied him of his
Fourteenth Amendment due process rights
was procedurally defaulted because
Rittenhouse did not fairly present this
claim to the Illinois courts. See
Rittenhouse v. O’Sullivan, No. 98-3286,
slip op. at 14-15 (C.D. Ill. Aug. 22,
2000). Rittenhouse’s briefs to the
Illinois courts only discussed the
problems with the challenged instructions
within the context of his argument that
he was denied the effective assistance of
trial counsel for his attorney’s failure
to object to these instructions.
Additionally, Rittenhouse’s brief to the
Illinois Appellate Court did not refer to
a single federal or state case addressing
a criminal defendant’s federal due
process rights. In fact, the only
reference to due process in Rittenhouse’s
ten page argument alleging ineffective
assistance of counsel appears in the very
last sentence, where he asserts that the
trial court’s "instructional errors"
denied him of his right to due process.

  A close review reveals, however, that
although Rittenhouse’s only discussion of
the jury instructions was within the
context of his ineffective assistance of
counsel claim, he did in fact present the
Illinois Appellate Court with a very
substantial analysis of alleged problems
with the jury instructions. Additionally,
his argument that the instructions
created a mandatory presumption of legal
responsibility clearly implicates the Due
Process Clause as explained by the
Supreme Court in Sandstrom v. Montana,
442 U.S. 510, 521, 99 S. Ct. 2450, 61 L.
Ed. 2d 39 (1979) (finding that a
presumption in a jury instruction that
relieves the government of its burden to
prove each element of a crime violates
the Due Process Clause). Likewise,
although the appellate court did not say
this outright, its analysis concluding
that the instructions did not create an
improper presumption squarely addresses
and rejects Rittenhouse’s argument that
is essentially a due process argument.
Thus, although it is a close call, we
will err on the side of evaluating the
merits of Rittenhouse’s claim.

  As we explained in Part II.A., however,
these instructions, taken as a whole, did
not create a presumption that Rittenhouse
was legally responsible for the actions
of Whitehead and Chaszar. Thus, the
instructions did not relieve the State of
its burden to prove Rittenhouse’s
culpability for each of the crimes with
which he was charged. Therefore, we
conclude that the Illinois Appellate
Court’s conclusion that these
instructions were proper was not an
"unreasonable application of" clearly
established Supreme Court precedent.
Consequently, we will deny Rittenhouse’s
petition on this claim.

  With regard to Rittenhouse’s second
claim--that the trial court’s refusal to
instruct the jury on his mere presence
theory of defense was a denial of his
fundamental right to due process and
equal protection under the Fourteenth
Amendment--the district court dismissed
it on the merits, finding that the
Illinois Appellate Court’s decision
rejecting Rittenhouse’s claim was
"neither an incorrect statement of
Supreme Court precedent nor an
unreasonable application of the law to
the facts." Rittenhouse v. O’Sullivan,
No. 98-3286, slip op. at 16 (C.D. Ill.
August 22, 2000). The court reached the
merits notwithstanding the appellant’s
assertion that Rittenhouse’s claim was
procedurally defaulted pursuant to the
Supreme Court’s decision in O’Sullivan v.
Boerckel, 526 U.S. 838, 119 S. Ct. 1728,
144 L. Ed. 2d 1 (1999), because he failed
to include this claim in the petition for
leave to appeal that he filed with the
Illinois Supreme Court. In rejecting the
respondent’s argument, the district court
explained that, because Rittenhouse filed
his petition when the decisions of this
court "held that he did not default
issues if he left them out of this
petition for leave to appeal," it would
not "default Rittenhouse for following
the then existing procedural law of the
[Seventh] Circuit." Rittenhouse, No. 98-
3286, slip op. at 15-16. We cannot agree.

  In Boerckel, the Supreme Court ruled
that several of the claims raised in the
defendant’s federal habeas petition were
procedurally defaulted because he had not
properly presented those claims to the
Illinois courts. 526 U.S. at 848.
Although he had presented the claims to
the Illinois Appellate Court, Boerckel
did not include them in his petition for
leave to appeal to the Illinois Supreme
Court, and, therefore, he had not
satisfied the federal exhaustion
requirement. See id. While Boerckel’s
case involved a matter on direct appeal,
we have since held that "[t]he procedural
default rule announced in Boerckel
applies with equal force in a case . . .
on collateral review." White v. Godinez,
192 F.3d 607, 608 (7th Cir. 1999).
Additionally, consistent with the Supreme
Court’s retroactive application of its
holding in Boerckel, we have procedurally
defaulted a habeas petitioner’s claims
where he sought relief through the state
court system prior to the Boerckel
decision and failed to present certain
claims in his petition for leave to
appeal to the Illinois Supreme Court. See
Rodriguez v. Scillia, 193 F.3d 913, 917
(7th Cir. 1999). Therefore, we must
disagree with the district court’s
determination that the Boerckel decision
does not affect Rittenhouse’s petition
and instead conclude that this claim has
been procedurally defaulted because
Rittenhouse did not include it in his
petition for leave to appeal to the
Illinois Supreme Court.

  Because we find this claim to be
procedurally defaulted, we may grant
Rittenhouse’s petition for habeas relief
on this claim only if he is able to
"’demonstrate cause for the default and
actual prejudice as a result of the
alleged violation of federal law, or
demonstrate that failure to consider the
claim[ ] will result in a fundamental
miscarriage of justice.’" Anderson v.
Cowan, 227 F.3d 893, 899-900 (7th Cir.
2000) (quoting Coleman v. Thompson, 501
U.S. 722, 750, 111 S. Ct. 2546, 115 L.
Ed. 2d 640 (1991)). Rittenhouse has made
no attempt to offer such a demonstration,
other than his attorney’s comment at oral
argument that if this court were to find
that both of his claims were procedurally
defaulted, and therefore declined to
review them on the merits, the errors
alleged in these claims, taken together,
would result in a fundamental miscarriage
of justice. We do not accept this
argument. We have already denied
Rittenhouse’s first claim on the merits,
and we find no aspect of the trial
court’s decision to refuse to instruct
the jury on his mere presence theory of
defense that requires us to review this
claim on the merits in order to avoid a
miscarriage of justice. Therefore, we
will deny his petition for a writ of
habeas corpus on this claim.

III.   Conclusion

  For the foregoing reasons we AFFIRM the
district court’s denial of Rittenhouse’s
petition for a writ of habeas corpus.
