Canaan v. Davis

Full title: KEITH BRIAN CANAAN, Petitioner, v. CECIL DAVIS, Superintendent, Respondent

Court: United States District Court, S.D. Indiana, Indianapolis Division

Date published: Jan 10, 2003

CAUSE NO. IP 97-1847-C H/K (S.D. Ind. Jan. 10, 2003)

Opinion

CAUSE NO. IP 97-1847-C H/K

January 10, 2003

ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS

DAVID F. HAMILTON, United States District Judge.

Introduction

On December 29, 1985, Lori Bullock was brutally murdered with a knife in her apartment bedroom in Evansville, Indiana. Petitioner Keith Canaan was convicted of her murder, as well as burglary and attempted criminal deviate conduct. The State of Indiana sentenced him to death. In this action for a writ of habeas corpus, Canaan seeks relief from his convictions and death sentence.

Canaan was lawfully convicted of murder and of burglary. His petition for relief from those convictions must be denied, and the State of Indiana is entitled to imprison him for what amounts to a life sentence for those crimes. However, Canaan's petition must be granted with respect to the death sentence and the conviction for attempted criminal deviate conduct. As explained in detail below, Canaan's attorneys denied him effective assistance of counsel at the penalty phase of the trial by failing to counsel him about whether he should testify himself. Also, the trial court's instructions on attempted criminal deviate conduct denied Canaan due process of law because they failed to require the jury to find beyond a reasonable doubt the essential element of a specific or conscious intent to penetrate the sex organ of the victim with an object. The death sentence was based in part on the invalid verdict on attempted criminal deviate conduct. The court is issuing a writ of habeas corpus that will allow the State of Indiana to impose sentences of terms of years for murder and for burglary (including a habitual offender enhancement), and/or to retry Canaan for attempted criminal deviate conduct and/or to hold a new death penalty hearing.

The Facts and the State Proceedings

Canaan was charged in Vanderburgh County with murder, burglary, and criminal deviate conduct. The evidence at trial showed that Lori Bullock's body was found by a roommate late at night. Bullock was lying on her bed. She had suffered approximately 23 or 24 stab wounds, many of which would have been fatal by themselves. There were deep wounds in her chest around her heart, in her pubic area, and in her neck. The knife was still stuck in her neck. Bullock was nude, and there was water on the bathroom floor around the shower. Her bedroom door had been forced open. The front door of the apartment did not show signs of forced entry, though the evidence also showed that the doorknob lock did not work well and that Bullock and her roommates usually did not keep the apartment locked with a deadbolt unless all four were at home. The apartment had been ransacked and some items had been taken from it. See Canaan v. State, 541 N.E.2d 894, 898 (Ind. 1989) (Canaan I).

Canaan was later identified as having visited Bullock's apartment building late in the evening of her murder. He had previously visited the apartment Bullock shared with other women, but he had not met Bullock herself on those occasions. Later in the night of the murder, Canaan had much more cash than he had had earlier in the day, and he also asked a waitress in an all-night restaurant how to remove blood stains from his shirt. When Canaan, his brother, and a friend noticed a police officer near the brother's apartment the next afternoon, Canaan told his brother to get rid of some of his pants, and said "I've got to get out of here." Canaan's brother testified that Canaan told him that he had killed "a biker" at a bar the night before. There is no indication of any such killing that night. Further, a fingerprint on a box of spaghetti from Bullock's apartment was identified as Canaan's print.²

2 During the state post-conviction proceedings, a neurologist testified about his examination of Canaan, during which Canaan described his recollection of Bullock's murder. See R. 485-86. There is no serious question here about whether Canaan is in fact guilty of Bullock's murder.

After a trial by jury, Canaan was convicted of murder, burglary, and attempted criminal deviate conduct. R. 845. After a separate post-verdict hearing, he was also found to be a habitual offender. R. 846-47. After a second post-verdict hearing on the prosecution's death penalty request, the jury recommended a sentence of death. R. 854. The trial judge agreed with that recommendation and decided to impose a sentence of death. R. 864. Canaan has not yet been sentenced to a term of years on the burglary and attempted criminal deviate conduct convictions. His death sentence was based on two aggravating factors: (1) intentional killing while committing burglary; and (2) intentional killing while committing attempted criminal deviate conduct. Canaan's convictions and sentence were affirmed on appeal in Canaan I, 541 N.E.2d 894. The Supreme Court of the United States denied certiorari. 498 U.S. 882 (1990).

Canaan then sought post-conviction relief in the state courts. The trial court denied relief after an evidentiary hearing. The denial of post-conviction relief was affirmed on appeal in Canaan v. State, 683 N.E.2d 227 (Ind. 1997) (Canaan II). The Supreme Court of the United States again denied certiorari. 524 U.S. 906 (1998). Canaan sought leave to file a second or successive petition for post-conviction relief, but the state courts denied that request. Canaan then filed his petition for a writ of habeas corpus in this action.

Canaan's Federal Claims for Relief

At present, therefore, Canaan is under a sentence of death for the murder of Lori Bullock, and he has been convicted of, though not sentenced for, the felonies of burglary and attempted criminal deviate conduct. He filed his federal habeas corpus petition on June 25, 1998.

Canaan presents six claims in this proceeding: (1) he was denied the effective assistance of counsel in several respects, including his attorneys' failure to counsel him about whether he should testify at the penalty phase, their failure to investigate, discover and present material evidence of mitigation, and their failure to object to the defective instruction for attempted criminal deviate conduct; (2) the evidence was insufficient to sustain his conviction for attempted criminal deviate conduct, which was a predicate for the death penalty; (3) the evidence was insufficient to sustain his conviction for burglary, which was also a predicate for the death penalty; (4) he was denied due process of law when the trial court gave erroneous jury instructions on the intent requirement for the crime of attempted criminal deviate conduct; (5) he was denied due process because the police intentionally destroyed physical evidence; and (6) the trial court erred in denying his motion for mistrial based on allegations of prosecutorial misconduct during the final argument of the death penalty hearing. Canaan has also requested an evidentiary hearing and an opportunity to conduct discovery regarding his due process claim based on destruction of evidence.

Standard of Review

Canaan seeks relief pursuant to 28 U.S.C. § 2254(a), under which a federal court may grant relief only if the petitioner shows that he is in custody "in violation of the Constitution or laws or treaties of the United States." Because Canaan filed his habeas corpus petition after enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, the AEDPA's restrictions on federal review of state court rulings apply here. See Williams v. Taylor, 529 U.S. 362 (2000); Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Canaan therefore must show that the state courts' adjudication of a claim on the merits either "(1) 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; or (2) resulted in a decision that 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).

There are two distinct prongs in § 2254(d)(1); relief may be granted if the decision is "contrary to" or involves an "unreasonable application" of clearly established federal law. A state court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that reached by the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision will be deemed an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

The Seventh Circuit has explained:

When faced with the task of determining whether a particular application of Supreme Court precedent is unreasonable, we have often taken a more pragmatic approach to answering the question, scrutinizing the practical operation and effect of the principles at issue in the particular facts of the case. See, e.g., Miller v. Anderson, 255 F.3d 455, 456-59 (7th Cir. 2001); Redmond v. Kingston, 240 F.3d 590, 591-92 (7th Cir. 2001); Washington v. Smith, 219 F.3d 620, 627- 35 (7th Cir. 2000). We ask whether the decision is "at least minimally consistent with the facts and circumstances of the case" or "if it is one of several equally plausible outcomes," Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997); Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997), granting a writ of habeas corpus if the determination is "at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary" as to be unreasonable. Hall, 106 F.3d at 749.

Boss v. Pierce, 263 F.3d 734, 741-42 (7th Cir. 2001) (granting relief where state court unreasonably applied Brady v. Maryland). And more recently, the Seventh Circuit has explained:

An incorrect application of clearly established federal law is not necessarily an unreasonable one. Hough v. Anderson, 272 F.3d 878, 890 (7th Cir. 2001). As such, a federal court cannot substitute its independent judgment as to the correct outcome; rather, it must determine that a state court decision was both incorrect and unreasonable before it can issue a writ of habeas corpus. Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000).

Davis v. Litscher, 290 F.3d 943, 946 (7th Cir. 2002) (emphasis in original) (affirming denial of relief).

In addition to the two clauses of § 2254(d)(1) addressing the state court's legal determinations, a petitioner can also obtain relief if the state courts have unreasonably determined the facts regarding a claim, "but such attacks are accompanied by a rigorous burden of proof: state court factual findings are presumed to be correct unless the petitioner rebuts the presumption with `clear and convincing' evidence." Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999) (affirming denial of relief in death penalty case), citing 28 U.S.C. § 2254(e)(1).

By the terms of § 2254(d), however, the state courts must have actually adjudicated the claim on the merits. If the deferential standard under § 2254(d) does not apply for some reason, the court must apply pre-AEDPA standards and "dispose of the matter as law and justice require." 28 U.S.C. § 2243; Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000); Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998).

In addition to the substantive standards, "assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Breard v. Greene, 523 U.S. 371, 375 (1998), citing Wainwright v. Sykes, 433 U.S. 72 (1977). A procedural default sharply limits the availability of federal relief:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can 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 claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); accord, Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

Indiana's Capital Punishment Statute

In assessing Canaan's claims, it is helpful to have a general understanding of Indiana's capital punishment process. Indiana law requires a jury to recommend whether to impose a death sentence. At the time of Canaan's trial and sentencing, the trial judge was required to consider the jury recommendation but was not required to follow it. In Roark v. State, the Indiana Supreme Court summarized the applicable Indiana statutory scheme, Ind. Code § 35-50-2-9, as follows:

Our death penalty statute provides three distinct steps which the trial court must take in reaching its sentencing decision in cases in which the jury has found the defendant guilty of Murder and the State seeks the death penalty. First, the trial court must find that the State has proved beyond a reasonable doubt that at least one of the aggravating circumstances listed in the death penalty statute exists. Second, the trial court must find that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances. This evaluating and weighing process should be described in the trial court's sentencing statement. Third, before making the final determination of the sentence, the trial court must consider the jury's recommendation. However, the death penalty statute also provides that the trial court is not bound by the jury's recommendation.

644 N.E.2d 565, 570 (Ind. 1994) (internal citations omitted).³

3 Indiana's statute was amended effective July 1, 2002. Under the current statute, the court must instruct the jury that, in order to recommend that the death penalty or life imprisonment without parole should be imposed, the jury must find at least one aggravating circumstance beyond a reasonable doubt. A special verdict form must be provided for each aggravating circumstance alleged. Then, if the jury reaches a unanimous sentencing recommendation, the court "shall" sentence the defendant according to the "recommendation." Ind. Code § 35-50-2-9(d) (e).

The Indiana statute identifies a number of aggravating circumstances that could support the death penalty. The aggravating circumstances charged in Canaan's case were based on Ind. Code § 35-50-2-9(b)(1), which provides in part that the State may seek the death sentence by alleging that the "defendant committed the murder by intentionally killing the victim while committing or attempting to commit" burglary and/or criminal deviate conduct. The jury found that both aggravating circumstances had been proved beyond a reasonable doubt, and the jury unanimously recommended a sentence of death. The judge agreed with that recommendation and sentenced Canaan to death.

Discussion I. Effective Assistance of Counsel

Canaan argues that he was denied his Sixth Amendment right to the effective assistance of counsel. His claims of attorney ineffectiveness are these:(1) his lawyers failed to counsel him about whether to testify at the death penalty hearing; (2) his lawyers erred by requesting that the habitual offender sentencing phase be conducted before the death sentencing phase; and (3) his lawyers erred by not investigating and presenting mitigation evidence, including information about his mental health and his conduct while previously incarcerated.⁴

4 Canaan also claims that his lawyers failed to object to constitutionally deficient jury instructions regarding the crime of attempted criminal deviate conduct. This last specification actually relates to both the sentencing and the guilt phases of the trial and is addressed below in Part IV-D in connection with the merits of the due process challenge to the instructions.

The Indiana Supreme Court held that Canaan was not denied effective assistance of counsel under the two-part test set forth in Burger v. Kemp, 483 U.S. 776 (1987), and Strickland v. Washington, 466 U.S. 668 (1984). Canaan II, 683 N.E.2d at 229-35. Canaan's ineffective assistance claims invoke all three aspects of § 2254(d). He argues that the Indiana Supreme Court's decisions on these claims were contrary to, or involved unreasonable applications of, clearly established federal law as determined by the Supreme Court of the United States in Burger v. Kemp and Strickland v. Washington. He also asserts that the Indiana Supreme Court's rejections of his ineffective assistance of counsel claims rested upon unreasonable determinations of the facts in light of the evidence presented in the Indiana post-conviction proceedings.

To support an ineffective assistance of counsel claim under Strickland v. Washington, Canaan must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. In evaluating whether counsel's performance was deficient, the court must defer to counsel's tactical decisions, must avoid "the distorting effects of hindsight," and must give counsel's decisions the benefit of a strong presumption of reasonableness. 466 U.S. at 689; Holman v. Gilmore, 126 F.3d 876, 881-82 (7th Cir. 1997).

The sixth amendment does not guarantee success or entitle defendants to the best available counsel or the most prudent strategies. Strickland . . . holds, and many later cases reiterate, that the Constitution is satisfied when the lawyer chooses a professionally competent strategy that secures for the accused the benefit of an adversarial trial. Compare Holman v. Gilmore, 126 F.3d 876, 881-84 (7th Cir. 1997), with Hall v. Washington, 106 F.3d 742 (7th Cir. 1997). "[T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial." Strickland, 466 U.S. at 689. A trial may be adversarial and fair even if the chosen strategy goes awry. Because counsel cannot experiment with different strategies, it is difficult in both principle and practice to know how best to proceed. Most plans for the conduct of a trial entail risks, for jurors' reactions are unpredictable. Circumstances of the crime and the strategy at trial on the guilt issue also may constrain the choices at a capital sentencing trial. That is why "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Ibid. (citation omitted).

Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir. 1997).

To show prejudice in the capital sentencing context, a petitioner must show that "a reasonable probability exists that, but for counsel's substandard performance, the sentencer `would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Hall v. Washington, 106 F.3d at 749, citing Strickland, 466 U.S. at 695, and Brewer v. Aiken, 935 F.2d 850, 855 (7th Cir. 1991); accord, Williams v. Taylor, 529 U.S. 362, 399 (2000). With these standards in mind, the court turns to Canaan's specifications of attorney error.

A. Failure to Advise Canaan About Testifying in Penalty Phase

Canaan did not testify at the guilt phase or the death penalty phase of his trial. He claims that his trial counsel provided ineffective assistance when they failed to advise him and denied him an opportunity to decide whether to testify at the penalty phase of his trial. Canaan is entitled to relief from his death sentence on this basis. He had a right to testify before the jurors who would decide whether to recommend death, he had a right to decide for himself whether to testify, and he had a right to effective assistance of counsel in deciding whether to testify.

1. The State Courts' Fact-Finding and the Evidence

The state trial court found in the post-conviction proceeding that attorneys Standley and Harris "discussed with petitioner his right to testify at both the guilt and penalty phases of the trial." R. 262. The trial court found that the decisions not to call Canaan at both phases were both proper trial strategy. Id. The trial court also stated that it was not convinced that calling Canaan "as a witness during the guilt phase of the trial would have affected the outcome of the penalty phase of the trial." Id. (emphasis added). The trial court made no similar finding about whether Canaan's testimony at the penalty phase would have affected the sentence.

The Supreme Court of Indiana affirmed the factual findings on the issue, including the finding that the attorneys actually discussed with Canaan his right to testify at the penalty phase of the trial. See Canaan II, 683 N.E.2d at 229-30. The state court noted that one lawyer testified that she feared that Canaan's demeanor would make him appear "cold and unsympathetic," and that the jury would view him as "a cold blooded killer." Id. at 230, n. 2. The state court cited cases holding that recommendations that defendants not testify had been tactical choices that did not reflect ineffective assistance of counsel. Id. at 230, citing Ford v. State, 523 N.E.2d 742, 747 (Ind. 1988); Schick v. State, 570 N.E.2d 918, 929 (Ind.App. 1991); and Luster v. State, 578 N.E.2d 740, 746 (Ind.App. 1991).

Canaan argues that the state court's finding to the effect that his attorneys discussed with him his right to testify at the penalty phase of the trial is "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(2). After reviewing the evidence from the post-conviction proceeding, the court agrees with Canaan on this point. As a result, the state courts' treatment of this claim is not entitled to the deference that would otherwise apply under 28 U.S.C. § 2254(d). Without the deferential standard under § 2254(d), the court must apply pre-AEDPA standards and "dispose of the matter as law and justice require." 28 U.S.C. § 2243; Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000); Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998).

The record shows that trial counsel considered whether Canaan should testify at the guilt phase of the trial, that they advised him about that question, and that he followed their advice not to testify. See R. 287, 314-15, 318, 325-27, 331-32, 336. During the guilt phase of the trial, counsel and the court had Canaan state on the record in open court that he had decided not to testify. R. 1431.

Regarding the penalty phase, however, the evidence from Canaan's lawyers shows that they did not ever discuss with him whether he should testify at the critical penalty phase of the trial. Both lawyers testified that they did not recall talking with Canaan about testifying at the death penalty phase. R. 288-89 (Standley), 316, 318-19 (Harris). Attorney Harris was more definite, testifying "I don't think we asked him if he wanted to testify at the death phase." R. 318. That testimony is consistent with Canaan's own testimony that he had no such discussions with his lawyers about testifying at the penalty phase. R. 336-37.

The state argues that the lawyers testified that they thought their prior decision about testifying at trial also applied to the penalty phase. See R. 316, 318-19 (Harris testimony). That testimony reflects at most a subjective view of attorney Harris that she thought the discussion applied to both, but not that the question was ever discussed or that Canaan's lawyers gave him any thoughtful advice about whether to testify at the penalty phase. Harris was asked:

Q Did you have any input or any discussion regarding whether or not Keith Canaan would testify at the death penalty phase?

A I don't recall us discussing that, although I think when we talked about him testifying at the trial, we were also regarding that towards the penalty phase and we just didn't think he would make a good influence to the jury.

R. 316. Harris continued:

Q Did you ever ask Keith if he wanted to testify at the death penalty portion?

A I don't think we asked him if he wanted to testify at the death phase. I think we did ask him if he wanted to testify during the trial.

Q Do you remember what he told you?

A He, we talked about it and he said, "Well, I think you guys know best, and I will do what you suggest to me."

Q You indicated that the decision, it was kind of a decision that went not only to the trial, but to the death penalty portion?

A Yeah, I don't recall ever really discussing it separately and that is why I say it was like we made the decision and it was just became a part of it, to go into the penalty phase.

Q So you don't recall any separate request or question asked of him about his testimony at the death penalty phase?

A No, I don't.

R. 318-19. Unlike the transcript of the guilt phase, the death penalty hearing transcript contains no record indicating that counsel had conferred with Canaan and that he had decided not to testify at that stage.

On this record, the state court's finding that Canaan's trial attorneys discussed with him whether he should testify or wanted to testify at the penalty phase of the trial was an unreasonable determination of the facts. As a result, the state courts' treatment of this claim is not entitled to deference that would otherwise apply under 28 U.S.C. § 2254(d).

2. The Performance Standard Under Strickland

"Strickland imposes few requirements on attorneys, but one it specifically enumerates is `to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.'" United States v. Holman, ___ F.3d ___, ___, 2002 WL 31803069 at *3 (7th Cir. Dec. 16, 2002), quoting Strickland, 466 U.S. at 688. Canaan's attorneys violated the professional performance standard when they failed to advise him about testifying at the penalty phase and when they failed to have him decide whether to testify at that stage. This court has no quarrel with the state courts' decisions to the effect that the attorneys properly handled the decision whether to testify at the guilt phase of the trial. But the decision to testify or not to testify at the penalty phase was considerably different from the decision whether to testify at the guilt phase of the trial.

At the guilt phase of the trial, Canaan had pursued a defense that he was not Bullock's murderer at all. His testimony would have been subject to impeachment with several prior felony convictions. His decision not to testify kept the evidence of those prior convictions away from the jury before its verdicts at the guilt phase.

By the time of the death penalty phase of the trial, however, the jury had already learned of Canaan's extensive prior record during the habitual offender hearing (discussed below). Testifying at the death penalty phase of the trial was Canaan's last chance to talk to the jurors who would weigh his fate.

At that point, Canaan and his lawyers knew that his defense strategy had not been successful. They knew that the jury had found beyond a reasonable doubt that he had committed the horrific murder of Lori Bullock. They also knew that the jury had found him guilty of burglary and attempted criminal deviate conduct, either of which was legally sufficient to support a death sentence. At that time, therefore, looking over the precipice at the beginning of the death penalty phase, the decision to testify or not to testify would have appeared more immediate and more important than it might have appeared before or even during the guilt phase.

Canaan was entitled to make that decision, and he was entitled to competent and thoughtful advice from his attorneys about that critical, perhaps life-and-death decision. The uncontradicted evidence shows that he received no such advice. Also, even if Canaan and his lawyers had talked expressly before trial about whether to testify at the death penalty phase — and the evidence shows they did not — that decision surely required a fresh look after the guilty verdicts.

The Supreme Court has long treated the decision whether to testify as a decision for the defendant to make. The defendant is entitled to competent advice of counsel, but in the end it is the defendant's decision. See Jones v. Barnes, 463 U.S. 745, 751 (1983), citing Wainwright v. Sykes, 433 U.S. 72, 93 n. 1 (1977) (Burger, C.J., concurring). The Seventh Circuit has also recognized that "the right to testify in one's own behalf is a personal one which may not be waived by counsel." United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir. 1984) (denying relief, however, where evidence showed that defendant intended to testify falsely); accord, Underwood v. Clark, 939 F.2d 473, 475 (7th Cir. 1991), citing Rock v. Arkansas, 483 U.S. 44, 51-53 (1987); United States v. Teague, 953 F.2d 1525, 1532-34 (11th Cir. 1992) (en banc) (defendant has a constitutional right to testify, and a lawyer who fails to protect that right provides ineffective assistance).

Even though there can be no guarantees that a defendant's testimony will help his case, his right to speak for himself is an important right. The defense in a capital case has a constitutional right to present mitigating evidence. See Williams v. Taylor, 529 U.S. 362, 393 (2000); Hitchcock v. Dugger, 481 U.S. 393, 394 (1987). Modern (post-Furman) American death penalty jurisprudence is built upon the requirement that the sentencer give individual consideration to the crime and the criminal. "[T]he fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982), quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976). An important part of that consideration of the individual defendant will often be the live testimony of the defendant himself.

The Eleventh Circuit has explained:

Where counsel has refused to accept the defendant's decision to testify and refused to call him to the stand, or where defense counsel never informed the defendant of his right to testify and that the final decision belongs to the defendant alone, defense counsel "has not acted `within the range of competence demanded of attorneys in criminal cases,' and the defendant clearly has not received reasonably effective assistance of counsel."

Gallego v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999), quoting United States v. Teague, 953 F.2d at 1534, citing Strickland, 466 U.S. at 687. The Eleventh Circuit's statement in Gallego describes the penalty phase of this case. Canaan's counsel's failure to advise him about testifying at the death penalty phase of the trial fell below an objective standard of reasonableness.

3. Prejudice Under Strickland

Canaan has also shown prejudice from his attorneys' failure to advise him about testifying at the death penalty phase. At the penalty phase of a death penalty case, the defendant's testimony may be critical. At that point, the jury will have already found the defendant guilty of a heinous crime sufficient to support the death penalty. Especially where the defendant has remained silent through the guilt phase of the trial, his testimony before the jury is likely to be his final opportunity to humanize himself — to tell the jury first-hand about his background and a wide range of possible mitigating factors.

In light of the finality of the death penalty, the law does not readily assume that a jury will unanimously recommend the death penalty. It is always possible for a juror to choose mercy for even the most brutal and cold-blooded murderer. This point does not mean that a death-row petitioner is entitled to a new hearing every time he identifies some additional arguably mitigating evidence that could have been presented. But it means that the defendant's right to decide for himself whether to take the risk of testifying to the jury about mitigating factors may be literally vital. One or more jurors may see a glimmer of humanity that may make them unwilling to recommend or impose the death penalty.⁵

5 Testifying at one's death penalty hearing carries some risks, as well. See Lowery v. Anderson, 69 F. Supp.2d 1078, 1115-16 (S.D.Ind. 1999) (defendant had admitted murders under cross-examination in penalty phase, thus removing any arguable doubt about identity), aff'd, 225 F.3d 833, 844 (7th Cir. 2000) (expressing concern about district court's reliance on defendant's penalty phase admission of guilt to support finding that alleged attorney errors at guilt phase caused no constitutional "prejudice" under Strickland standard).

Judges are in the business of sentencing people for proven crimes. It is a weighty responsibility, and one that should never become easy, even where the defendant has committed serious crimes and deserves heavy punishment. Even in the most serious cases, the court must ordinarily consider the history and characteristics of the individual defendant. See 18 U.S.C. § 3553(a) (factors to be considered in federal criminal sentences). When the defendant speaks, whether through testimony or through the right of allocution at sentencing, he can become more human, more individual, and — perhaps — more deserving of something less than the maximum legal sentence. Of course, a defendant's remorseless or dishonest statements, or lame explanations or excuses, can also serve to aggravate his situation. But that danger only underscores the importance of the defendant's own statements for a judge or jury trying to decide upon an appropriate punishment.

The importance and potential consequences of the defendant's own statements in a death penalty hearing are analogous to those of a defendant's right of allocution at sentencing in non-capital cases. "The right of allocution allows a defendant to personally address the court before sentencing in an attempt to mitigate punishment. With historical roots in the common law, the opportunity to plead for mercy is another provision in a procedural body of law designed to enable our system of justice to mete out punishment in the most equitable fashion possible, to help ensure that sentencing is particularized and reflects individual circumstances." United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991); see also United States v. Tidwell, 178 F.3d 946, 949 (Ripple, J., dissenting) ("The right of a criminal defendant to address the court personally, to speak on his own behalf and to offer information in mitigation of his sentence, is a bedrock of our constitutional jurisprudence that can trace its lineage to the early common law."); see generally McGautha v. California, 402 U.S. 183, 238 (1971) (Douglas, J., dissenting) (at least in a death penalty hearing, "the right of allocution becomes a constitutional right — the right to speak to the issues touching on sentencing before one's fate is sealed"), overruled, Furman v. Georgia, 408 U.S. 238 (1972).

In deciding the issue of prejudice under Strickland, the treatment of erroneous denials of the right of allocution at sentencing in non-capital cases offers useful instruction. Such errors are ordinarily presumed to have been prejudicial, though they may be harmless beyond a reasonable doubt in some situations, such as when the sentencing court has already imposed the lightest sentence available. Compare, e.g., United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir. 1993) (finding error not harmless where law would have allowed a lighter sentence), with United States v. de Alba Pagan, 33 F.3d 125, 129-30 (1st Cir. 1994) (error requires automatic vacation of sentence); see also United States v. Adams, 252 F.3d 276, 287 (3d Cir. 2001) (presuming prejudice where defendant shows violation of right and opportunity for violation to have affected sentence); United States v. Myers, 150 F.3d 459, 463 (5th Cir. 1998) (presuming prejudice and requiring remand "even when the judge's comments . . . indicate that the judge would remain unmoved by anything the defendant has to say") (emphasis in original); United States v. Barnes, 948 F.2d at 329-31 (discussing importance of allocution and vacating sentence where right had been denied).

The reason for these strict approaches to denials of the right of allocution is clear from Justice Frankfurter's opinion for a plurality of the Supreme Court in Green v. United States: "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." 365 U.S. 301, 304 (1961); accord, United States v. Adams, 252 F.3d at 288 (presuming prejudice, quoting Green, noting that defendant was denied "his most persuasive and eloquent advocate," and noting that district court was denied "the opportunity to take into consideration Adams' unique perspective on the circumstances relevant to his sentence, delivered by his own voice"). Judge Rovner's observations about the difficulty of sentencing are also pertinent here, as she described her and her colleagues' experience as district judges:

Collectively, we have looked across the bench hundreds of times at the face of a person we are about to send to prison. We have seen the teary eye and trembling hand, heard the quaking voice. We have noted the declaration of remorse, the passionate pledge that this crime was the last. And we have witnessed more than one such defendant later return to crime at the first opportunity. Experience has therefore taught us that not all expressions of remorse are genuine; and yet we also know how hard it can be to determine which ones are real.

United States v. McIntosh, 198 F.3d 995, 1006 (7th Cir. 2000) (Rovner, J., dissenting).

The point here is that the human confrontation between the guilty defendant and the sentencer produces a result that cannot be predicted with certainty. See United States v. Barnes, 948 F.2d at 329 ("where a defendant is convicted but imposition of sentence is postponed, the opportunity to address the court at a subsequent hearing arises precisely because the scope of punishment is not preordained"). And as the Fifth Circuit explained when reversing a sentence imposed after the sentencing judge had indicated that he was not going to "waste my time letting some criminal tell me about what sentence he thinks I ought to give him," "a judge may not harbor such an attitude." United States v. Sparrow, 673 F.2d 862, 865 (5th Cir. 1982).⁶

6 The federal circuits have been debating for decades whether the right of allocution is a constitutional right. See, e.g., Boardman v. Estelle, 957 F.2d 1523, 1528-30 (9th Cir. 1992) (majority holding right is constitutional); id. at 1533 (Hall, J., dissenting) (right not constitutional); Milone v. Camp, 22 F.3d 693, 704 n. 10 (7th Cir. 1993) (finding no constitutional right to testify at one's own sentencing); Ashe v. North Carolina, 586 F.2d 334, 336-37 (4th Cir. 1978) (at least where defendant expresses desire to speak before sentencing, denial violates due process of law). This court's decision on Canaan's claim is not affected by the outcome of this debate. Because Canaan had a right under state law to testify at his own sentencing proceeding where his life was at stake, he had an independent constitutional right to effective assistance of counsel in deciding whether to exercise that right.

Canaan testified at the post-conviction hearing about aspects of his background that he could have testified about in the penalty phase. These included a long history of drug use, as well as court-ordered counseling that did not occur because his parents refused to pay the $50 charge for the service. They also included incidents in which his mother was driving her children and threatened to kill them by crashing the car, as well as a difficult and often abusive relationship with his father. See R. 339-60.

To satisfy the prejudice prong of the Strickland standard, Canaan was not required to prove by a preponderance of the evidence that the outcome of the penalty phase more likely than not would have been different if he had testified.

He was required to show only "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The jurors who recommended death for Canaan never heard him address them directly, as Canaan had a right to do from the witness stand, upon advice of counsel. Given the fundamental importance of the defendant's right to address those who will decide his fate — and the possibility that such testimony might humanize even someone who committed crimes as horrible as Canaan's — and the fact that Canaan had at least some evidence to offer in mitigation, Canaan has shown "a reasonable probability" of a different outcome, one "sufficient to undermine confidence in the outcome."⁷

7 The state trial court did not directly address the issue of prejudice under Strickland regarding Canaan's own testimony at the penalty phase. The court wrote that it was not convinced that calling Canaan "as a witness during the guilt phase of the trial would have affected the outcome of the penalty phase of the trial." R. 262 (emphasis added).

B. Habitual Offender Before Death Penalty

After the jury found Canaan guilty of murder, burglary, and attempted criminal deviate conduct, the jury still faced hearings on both the habitual offender charge against Canaan and the issue of the death penalty. At the request of Canaan's counsel, the habitual offender hearing was held first and the death penalty hearing second.

During the habitual offender hearing, the jury learned that Canaan had prior convictions in Ohio for house burglary, felonious assault, and escape from jail, two prior convictions in Florida for burglary, and a prior conviction in Indiana for confinement and escape. Canaan had managed to accumulate this record in just five years, from 1977 to 1982. The jury found Canaan guilty of being a habitual criminal.

Then, during the death penalty hearing, Canaan's lawyer argued to the jury that murder carried a sentence of up to 60 years, criminal deviate conduct up to 50 years, and burglary up to 20 years, plus the additional — but unspecified — sentence that Canaan would receive as a habitual criminal. The lawyer argued that Canaan would spend the rest of his life in prison even if the jury did not recommend the death penalty. R. 2359. The jury recommended death despite this argument, and the trial judge agreed with the recommendation.

Canaan now claims that his lawyers were ineffective in making this decision. He argues that they did not give the decision adequate consideration and that they failed to consult with him about the decision. Canaan's counsel testified that he made the request at the suggestion of the trial judge. R. 283-84. Attorney Standley made a quick decision without consulting Canaan about it. He believed that the trial judge was not inclined to impose the death penalty, and he thought that if the jurors found out first that Canaan would face what amounted to a life sentence, they would be less inclined to recommend a death sentence. R. 284-85. The attorney also testified that he did not think the matter out any further, such as considering the effect that knowledge of a prior burglary conviction might have, and he testified that if he had thought about the tactical decision more, he might have chosen differently. R. 283-85.

In the state post-conviction proceeding, the trial court implicitly found that the choice to proceed with the habitual offender hearing first had been a reasonable tactical decision by counsel, and that a different sequence would not have affected the outcome in any event. See R. 263. The Supreme Court of Indiana agreed on both points and found no ineffective assistance of counsel. Canaan II, 683 N.E.2d at 231. Canaan criticizes the state court's resolution of the issue now on the ground that counsel failed to follow through on the strategy by failing to see that the jury was informed of the consequences of its habitual offender finding, as well as counsel's apparent failure to discuss this important tactical choice with Canaan.

Contrary to Canaan's arguments, the state court's resolution of this issue did not involve any unreasonable reading of the record. The decision also was not contrary to or an unreasonable application of any United States Supreme Court decision. The tactical decision obviously did not work, and it could have been carried out better. Canaan's criticism of his lawyers and the state courts on this subject, though, amounts to nothing more than the sort of retrospective view that is not sufficient to warrant relief under the Sixth Amendment.⁸

8 There is also a curious tension between Canaan's first two claims. Regarding the sequence of the two hearings, Canaan argues that his attorneys erred by allowing the jury to learn about his prior criminal history before they made their recommendation on the death sentence. Yet Canaan also claims he wanted to testify at his death penalty hearing. As the post-conviction court noted, R. 156, that course would have made most or all of his prior criminal record available as impeachment evidence.

C. Failure to Investigate and Present Mitigating Evidence

Canaan also argues that his counsel were ineffective at sentencing by failing to investigate and present several types of evidence in mitigation. At the penalty phase of the trial, Canaan's counsel called as witnesses a minister who testified to general opposition to the death penalty and a professor of criminal justice who testified regarding evidence indicating that the death penalty is not an effective deterrent to murder. Counsel did not call family members or others who were familiar with Canaan's life.

Canaan has attacked this approach as denying him effective assistance of counsel at the penalty phase of the trial. He contends that a more complete investigation of his life would have led counsel to evidence that his parents had mistreated him as a child, that he sought escape from their abuse by using a wide variety of drugs, leading to brain injury that limited his ability to control his conduct, and that he had a record of good behavior in jail while awaiting his trial. Because the jury heard no individualized mitigating information about him, Canaan argues, it had seen only the prosecution's picture of him and had an easier time recommending a death sentence than if it had learned more about him as an individual.

The state courts rejected these claims. The trial court made detailed findings of fact on the subject. R. 264-66. The Indiana Supreme Court reviewed those findings in detail and affirmed them. Canaan II, 683 N.E.2d at 232-34. The Indiana Supreme Court and the trial court both cited and applied Burger v. Kemp, 483 U.S. 776 (1987), on counsel's obligation to investigate possible mitigating evidence and Strickland v. Washington, 466 U.S. 668 (1984), on the more general standard of effective assistance of counsel.

The AEDPA has a dramatic effect on this court's consideration of the claim of ineffective assistance of counsel regarding mitigating evidence. Canaan cannot prevail by citing cases from the Seventh Circuit or other circuits in which courts carrying out de novo review of legal questions have found similar performance by counsel in capital cases to have been ineffective. See, e.g., Emerson v. Gramley, 91 F.3d 898, 906 (7th Cir. 1996) (affirming writ vacating death sentence); Brewer v. Aiken, 935 F.2d 850, 858-59 (7th Cir. 1991) (same); Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir. 1995) (reversing denial of petition regarding death sentence). Instead, Canaan must show that the Indiana Supreme Court was not merely wrong but that its decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or 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).

Canaan has not identified any of the state court's findings of historic fact concerning counsel's performance as unreasonable based on the record before the court. (Canaan does argue the state courts made unreasonable findings of fact on the prejudice prong, discussed below.) He argues that the state court's finding that his lawyers conducted an adequate and reasonable investigation under Burger and Strickland was not a reasonable finding, but that is an ultimate legal conclusion rather than a finding of historic fact.

This leaves for consideration the second prong of § 2254(d)(1), whether the Indiana Supreme Court's decision "involved an unreasonable application" of Strickland and its Supreme Court progeny. 28 U.S.C. § 2254(d)(1). Canaan argues that the state courts were wrong because Burger and Strickland are distinguishable, in that his counsel did less to investigate his background for possible mitigating evidence than the defense counsel did in those cases. Pet. Prelim. Mem. at 31-33.⁹

9 Petitioner's Preliminary Memorandum was submitted to the court only in electronic format. The court has printed a copy and included it in the case file. The page citations to the document are to the copy in the court file, and may not correspond to other copies of the same document in slightly different formats.

With respect to the first part of the Strickland test, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. The practice of law is not a mechanical exercise, and a reviewing court must leave ample room for variations in professional judgment. See id. By like token, a reviewing court must not lean too heavily on hindsight: a lawyer's acts and omissions must be judged on the basis of what the lawyer knew or should have known at the time the tactical choices were made and implemented. Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1854 (2002). A finding of deficient performance is possible only if, "in light of all the circumstances, the [alleged] acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690.

As to the prejudice portion of the Strickland analysis,

[a]s a general matter, a defendant alleging a Sixth Amendment violation must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Mickens v. Taylor, 535 U.S. 162, ___, 122 S.Ct. 1237, 1240 (2002), quoting Strickland, 466 U.S. at 694. "[O]nly a clear error in applying Strickland's legal standard would support a writ of habeas corpus." Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997). The Indiana Supreme Court's analysis of Canaan's ineffective assistance of counsel claims regarding mitigating evidence produced a decision "at least minimally consistent with the facts and circumstances of the case." That decision was "one of several equally plausible outcomes." That decision, therefore, will not support the award of federal habeas relief. Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997).

On the prejudice prong of the Strickland analysis, Canaan argues that the state courts' finding of lack of prejudice was based on an unreasonable view of the evidence. Pet. Prelim. Mem. at 31. In particular, he argues that the trial court erred in finding that the testimony of the psychologist and the neurologist would have been "seriously undermined by [Canaan's] recitation to them of how the crime in this case was actually committed." R. 266. Canaan argues that the trial court was wrong in expecting that Canaan's account of the crime would have been admissible at the penalty phase because at that point, there was no longer any issue of guilt. Pet. Prelim. Mem. at 36.

With due respect, the court disagrees. The trial court was right on target on this issue. In the next finding of fact, the court explained:

That the Petitioner's description to them, which they used in forming their opinion, that the killing of Lori Bullock was accidental or that Petitioner couldn't remember significant portions of the killing, lacks probative value and is offensive to ordinary notions of common sense. The presentation of such evidence would hinder Petitioner's case and seriously undermine the probative effect of both Dr. Price and Dr. Margulies's testimony.

R. 266. Dr. Price is a clinical psychologist who testified that Canaan suffered from an organic personality syndrome, alcohol intoxication, a cannabis delusional disorder, and cannabis intoxication the day before the murder. R. 409. Dr. Price did not question Canaan about the actual commission of the crime, R. 424-26, and did not express an opinion on his condition at that time. Dr. Margulies is a neurologist who testified that Canaan had suffered from an acquired brain injury and that he suffered from a mental disease or defect. R. 459, 497-98. Canaan told Dr. Margulies how the crime occurred, and Dr. Margulies testified that he believed Canaan's account to be accurate. R. 486-87.

If Canaan's original counsel had presented the testimony of Dr. Margulies to the jury in the death penalty phase of the trial, it is difficult to see how Canaan's counsel might have excluded from evidence Canaan's account of Lori Bullock's murder. Although Dr. Margulies initially testified that he did not rely upon Canaan's account, R. 478-79, his later testimony showed that he believed Canaan's account of the murder and treated it as an impulsive act, R. 485-90, and that the discussion of the crime was useful for his work in the case, R. 499. That use of Canaan's account made the account admissible even when guilt was no longer at issue. The trial court's finding that such testimony would have undermined the value of Dr. Price's and Dr. Margulies' testimony in mitigation was not unreasonable.

In other respects, the trial court's findings were also not unreasonable. The court found it unlikely that extensive presentation of drug usage over a long period of time would have been considered as mitigating evidence by a Vanderburgh County jury. R. 265-66.¹⁰ With respect to evidence of supposed good behavior in jail or prison, the trial court noted that such evidence would have been rebutted by extensive evidence of Canaan's continued drug use, his participation in an escape attempt involving an assault of a prison guard, and involvement in another violent incident. R. 266.

10 Canaan's trial had been held in Vanderburgh County, where Evansville is located, but the jury had been selected from Gibson County. There is no reason to believe that the trial court's reference to Vanderburgh County instead of Gibson County undermines the value of its finding on this point, or that jurors from Gibson County would have been more inclined to consider Canaan's long history of drug abuse as a mitigating factor.

This is not to say that Canaan has not raised reasonable arguments here. His counsel presented no individualized mitigation evidence. But they also did not have much to work with, or much they would have found if they had looked harder for it. Counsel in the post-conviction proceeding had more time and found the evidence of Dr. Price and Dr. Margulies, which was not overwhelming in its weight and power.

As with any challenge to the effectiveness of counsel in a death penalty case, Canaan has presented grounds upon which a different approach by his counsel would have been more effective, or at least offered better prospects for avoiding the death penalty. He has cited cases from circuit courts of appeal that tend to support his argument that his lawyers were ineffective in failing to develop and present mitigation evidence and an individualized plea for mercy.

But this is precisely where the deferential standard of review under the AEDPA makes a critical difference. Strickland established a framework and standard for evaluating claims of ineffective assistance of counsel. "Strickland calls for inquiry into degrees; it is a balancing rather than a bright-line approach. . . ." Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997). Canaan argues that it is not possible for the United States Supreme Court to rule on every possible variation of ineffective counsel claims. That's true. But the AEDPA imposes a standard requiring a petitioner to argue his case in terms of Supreme Court decisions. If reasonable jurists could disagree on the application of the Strickland standard to this factual record regarding mitigating evidence, Canaan is not entitled to relief. Reasonable jurists in the state courts have disagreed with Canaan's arguments on the application of Strickland to the mitigation issue. Their applications of that standard were not contrary to or unreasonable applications of Strickland. Canaan is not entitled to relief on this ground.

II. Sufficiency of the Evidence of Attempted Criminal Deviate Conduct

As his second claim for relief, Canaan asserts that his federal due process rights were violated by his conviction for attempted criminal deviate conduct, which was used as an aggravating factor to support the death penalty.

States are free, within broad limits, to define the elements of a crime. Eaglin v. Welborn, 57 F.3d 496, 500 (7th Cir. 1995) (en banc). Once a state has done so, however, the due process clause of the Fourteenth Amendment requires a state to prove beyond a reasonable doubt each element of the crime. Victor v. Nebraska, 511 U.S. 1, 5 (1994); Eaglin, 57 F.3d at 500. Canaan claims that his conviction for attempted criminal deviate conduct fails this standard.

The elements of criminal deviate conduct are stated in Ind. Code § 35-42-4-2:

A person who knowingly or intentionally causes another person to perform or submit to deviate sexual conduct when:

(1) the other person is compelled by force or imminent threat of force;

(2) the other person is unaware that the conduct is occurring; or

(3) the other person is so mentally disabled or deficient that consent to the conduct cannot be given;

commits criminal deviate conduct, a Class B felony. However, the offense is a Class A felony if it is committed by using or threatening the use of deadly force; if it is committed while armed with a deadly weapon; or it results in serious bodily injury to any person other than a defendant. . . .

"Deviate sexual conduct" is defined in Ind. Code § 35-41-1-9:

"Deviate sexual conduct" means an act involving:

(1) a sex organ of one person and the mouth or anus of another person; or

(2) the penetration of the sex organ or anus of a person by an object.

Ind. Code § 35-41-5-1 defines the crime of attempt in pertinent part as follows:

(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.

These statutes, as interpreted by the Indiana courts, establish the elements of the offense of attempted criminal deviate conduct.

Canaan argues that there was not sufficient evidence that he acted with the specific intent to penetrate Bullock's sex organ with the knife. In essence, Canaan argues: (a) that the evidence supports both an inference that he did act with specific intent and an inference that he stabbed her with the intent to kill her, but without any conscious objective or specific intent to penetrate her sex organ; and (b) that there was no rational basis for the jury to choose the first inference over the second beyond a reasonable doubt. Pet. Prelim. Mem. at 54.

The relevant evidence came from Dr. Carpenter, the pathologist who performed the autopsy on Lori Bullock. Dr. Carpenter testified that Bullock had 23 or 24 knife wounds. R. 1273. There were deep wounds to the chest and abdomen, to the neck, and in the pubic area, as well as less deep wounds in the arms and one thigh. Dr. Carpenter testified that the wounds to the chest were concentrated around the heart, that "many" of the wounds to the chest were sufficient to cause death, and that the heart muscle was penetrated. R. 1274. The neck wounds cut the trachea, the esophagus, and the carotid arteries on both sides. R. 1275. Dr. Carpenter further testified that the wounds had been inflicted "rapidly," and that he could not determine the order of the wounds. R. 1276-77.

Regarding the pubic area, which is the focus of the attempted criminal deviate conduct charge, Dr. Carpenter testified: "The pubic area contained basically one wound, but I believe there were probably three to four traumatic episodes or impacts at that point." He explained: "There was one big gaping wound in the pubic area through which I believe the weapon passed several times." R. 1274. The "gaping" knife wound was just above the pubic bone, and in several different thrusts, the knife cut the right, left, and posterior labia. R. 1281-82. Dr. Carpenter also testified that the vaginal canal itself was not penetrated. R. 1283.¹¹

11 In a short hearing outside the presence of the jury regarding the admissibility of autopsy photographs, Dr. Carpenter testified that the knife appeared to have deflected off the pubic bone on its several paths that cut the labia in several places. R. 1279-80. The detail about deflection, which Canaan has noted in his briefs to this court, was not repeated before the jury for its consideration.

The case was submitted to the jury with instructions on both criminal deviate conduct and attempted criminal deviate conduct. The jury did not find Canaan guilty of criminal deviate conduct but found him guilty of attempted criminal deviate conduct.

In Canaan's direct appeal, the Supreme Court of Indiana voted three to two to affirm his conviction for attempted criminal deviate conduct and his death sentence. The two dissenting justices found that the evidence "shows no more than an undifferentiated criminal state of mind with contemporaneous homicidal conduct directed at the person as a whole. It does not show an attempt to penetrate the sex organ of the victim with the knife. . . ." Canaan I, 541 N.E.2d at 912 (DeBruler, J., dissenting). Canaan has repeated that argument here.

In the direct appeal, the Indiana Supreme Court majority quoted Dr. Carpenter's testimony at length and then explained why that evidence supported the conviction for attempted criminal deviate conduct.

Canaan notes in his brief "[t]he evidence presented showed promiscuous stabbing of the body." The knife thrusts were in a downward motion and originated in the pubic area of the body. From this evidence, we find reasonable men could infer from the placement and direction of these thrusts an intent to penetrate the vagina itself. Apparently this is what the jury concluded since it convicted Canaan of attempted deviate sexual conduct. Given that this evidence suggests substantial steps were taken to enter the vaginal canal, and the physical evidence of three contiguous knife wounds shows the attacker got at least that far in his attempt, a reasonable man could also infer that some penetration, although slight, had also occurred. Additionally, as noted earlier, Bullock, not in the habit of sleeping unclothed, was totally nude when found. In light of this evidence, we cannot say the jury should not have had the opportunity to consider and either accept or reject the inference that the knife Keith Canaan used to kill Lori Bullock penetrated her sexual organs in the manner contemplated by our statute.

Canaan I, 541 N.E.2d at 907.

Prior to the AEDPA, a challenge to the sufficiency of the evidence was analyzed in a federal habeas proceeding by determining "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16.

Under the AEDPA, federal review of these claims "therefore now turns on whether the state court provided fair process and engaged in reasoned, good-faith decision-making when applying Jackson's `no rational trier of fact' test." Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1997), vacated on other grounds, Gomez v. DeTella, 522 U.S. 801 (1997).

Canaan argues that this court should review de novo his challenges to the sufficiency of the evidence. He notes that the Indiana court did not cite Jackson v. Virginia but wrote instead: "In reviewing sufficiency claims on appeal, we do not reweigh evidence or judge the credibility of witnesses. We look only to that evidence most favorable to the verdict and any rational inferences to be drawn therefrom. If there is substantial evidence of probative value to support the verdict, it will not be disturbed." Canaan I, 541 N.E.2d at 905. "Substantial evidence of probative value," Canaan argues, is not equivalent to the federal standard under Jackson.

Canaan draws support for this argument from the curious statements by the Indiana Supreme Court in several opinions that it was "rejecting" the Jackson standard. See Washington v. State, 570 N.E.2d 21, 23 (Ind. 1991) (state court had previously "rejected" Jackson standard); Oates v. State, 429 N.E.2d 949, 950 (Ind. 1982) (same); Norris v. State, 419 N.E.2d 129, 134 (Ind. 1981) (declining to adopt Jackson standard).

Both before and after this line of cases, however, the Indiana Supreme Court has expressed the view that its standard of review for the sufficiency of evidence in criminal cases is equivalent to and consistent with the Jackson standard. In Haugher v. State, for example, the state court wrote that it would "look to that evidence most favorable to the State to determine if there was substantial evidence of probative value from which the jury could have found the defendant guilty beyond a reasonable doubt." 405 N.E.2d 526, 528 (Ind. 1980). More recently, in a case involving sufficiency of evidence to support an attempted murder conviction, the Indiana Supreme Court applied the Jackson standard and described that standard as "equivalent to the one we routinely employ in reviewing evidentiary sufficiency." Bethel v. State, 730 N.E.2d 1242, 1243 (Ind. 2000) (reversing conviction for attempted murder), citing Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984) ("The Indiana Supreme Court applies a standard similar to the one enunciated in Jackson v. Virginia."); accord, Letica v. State, 569 N.E.2d 952, 955 (Ind. 1991) (quoting the Jackson standard and stating: "We apply the same standard of review on questions of insufficiency of the evidence on direct appeal.").

Canaan has not identified any cases (other than his own) in which the Indiana Supreme Court's phrasing of the standard would have produced a result different from the result under the Jackson standard. The statements to the effect that the state court was "rejecting" the constitutional standard articulated by the Supreme Court of the United States were at least unfortunate. Nevertheless, this court does not believe that the state court was actually failing to apply the Jackson standard in Canaan's case or in any other case after Jackson was decided. The justices of the Supreme Court of Indiana have been and remain fully cognizant of the basic constitutional requirement that guilt be proved beyond a reasonable doubt, which the federal Supreme Court has called an "ancient and honored aspect of our criminal justice system." See Victor v. Nebraska, 511 U.S. 1, 5 (1994). Accordingly, this court is not free to review de novo the state court's view of the sufficiency of the evidence.

This court concludes that the Indiana Supreme Court (1) fairly described the evidence in the light most favorable to the jury's verdict, and (2) provided fair process and engaged in reasoned, good-faith decision-making in applying a test equivalent to the "no rational trier of fact" test of Jackson. The finding by the majority in Canaan I that "reasonable men could infer from the placement and direction of these thrusts and intent to penetrate the vagina itself" is supported by the testimony of Dr. Carpenter, summarized above and quoted at length in Canaan I, 541 N.E.2d at 907. Even if this court reviewed the question de novo, as Canaan argues it should, the result would not change. At least in the absence of substantial contrary evidence, the circumstantial evidence of the repeated deep knife wounds to the pubic area, which went all the way through the victim's body, supports a reasonable inference, beyond a reasonable doubt, that Canaan inflicted the wounds with the conscious objective of penetrating the victim's sex organ. Canaan is not entitled to relief on this basis.¹²

12 Canaan also framed his argument under 28 U.S.C. § 2254(d)(2), asserting that the majority's conclusion was based on "an unreasonable determination of the facts." See Pet. Prelim. Mem. at 55. He has not identified, however, any factual errors by the state court regarding this issue. The state court's discussion of the evidence appears to be entirely consistent with the evidence. Canaan's argument remains focused on the state court's analysis of the sufficiency of the evidence rather than the state court's factual findings.

III. Sufficiency of the Evidence of Burglary

Canaan also contends that his due process rights were violated because the evidence was insufficient to sustain the verdict on the burglary charge. Pursuant to Ind. Code § 35-43-2-1, a person who breaks and enters the dwelling or structure of another person with the intent to commit a felony in it commits burglary. (The offense is ordinarily a Class C felony, but it is a Class B felony if the burglary is committed while armed with a deadly weapon or the building or structure is a dwelling, and a Class A felony if the burglary results in bodily injury or serious bodily injury to any person other than the defendant.)

Canaan contends the elements of "breaking" and "building or structure" were not sufficiently proved. Because there was no sign of forced entry from the outer door, only of the bedroom door, he claims the conviction cannot stand. If not, a death sentence based in part on burglary as an aggravating circumstance also cannot stand. Canaan presented this issue in his direct appeal, and did so in terms that gave the state court sufficient notice of the constitutional dimension of the issue. As with the issue of attempted criminal deviate conduct, federal due process standards require that the evidence support a reasonable finding that all elements of the crime, as defined in state law, were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 318-19. The same analysis of the AEDPA standard applies to this issue.

"A `breaking' is established when even the slightest force is used to gain unauthorized entry: even opening an unlocked door is sufficient." Trice v. State, 490 N.E.2d 757, 758-59 (Ind. 1986). The Indiana Supreme Court has explained:

[It is a] general doctrine that one may infer the intent at the time of entry from the fact of subsequent commission of a felony. See Gee v. State, 526 N.E.2d 1152, 1154 (Ind. 1988) (stating that a jury can infer from the surrounding circumstances whether a defendant entered a structure with the intent to commit the felony charged therein); Jewell v. State, 672 N.E.2d 417, 427 (Ind.Ct.App. 1996), trans. denied (holding that "[a]lthough the fact of breaking and entering is not itself sufficient to prove entry was made with the intent to commit the felony, such intent may be inferred from subsequent conduct of the defendant inside the premises").

Mull v. State, 770 N.E.2d 308, 313 (Ind. 2002).

In Canaan I, the Supreme Court of Indiana analyzed the sufficiency of the evidence as to burglary, focusing on the disputed issue of "breaking":

It is true that here the outer door to the apartment showed no signs of forced entry, but it is known that the locks on the door did not work properly. The deadbolt did not work well, and therefore Bullock habitually left it unlocked. The lock in the doorknob was so defective, even a change in air pressure caused by opening the outer entryway door would sometimes cause the apartment door to "pop" open. Police officers testified that when the deadbolt was not locked the door would open "with a good shove." In addition, there were signs of unauthorized entry. The apartment was ransacked, food items, clothing, and other household articles were strewn all over the apartment and outside the building. Lori Bullock was completely naked when she was found. Her roommate testified Lori never slept in the nude. One may infer from the fact towels were found near the bed where she was stabbed, that she was either getting into or out of the shower when Canaan attacked her. It is also highly unlikely she would have answered the door nude or dressed only in a towel. Another factor which shows unauthorized entry is that the door to Bullock's bedroom was smashed in. The jury determined from these facts that Keith Canaan broke and entered the building or structure within which Lori Bullock lived. There was sufficient evidence to support this finding.

541 N.E.2d at 906.

The two dissenting justices of the Supreme Court of Indiana disagreed with the majority on this point, also. They cited the standard that some force or effort, however slight, was needed to show breaking. They then wrote:

The evidence showed that [Canaan] knocked on the apartment door and that he was in the apartment. There was also evidence that the apartment door would open on occasion through the application of slight force. However, this does not constitute evidence that appellant applied any force to gain unauthorized entrance.

541 N.E.2d at 912, citing Howard v. State, 433 N.E.2d 753 (Ind. 1982).

The majority's analysis of the issue is supported by the trial record. The majority both (1) fairly described the evidence in the light most favorable to the jury's verdict, and (2) provided a fair process and engaged in reasoned, good-faith decision-making in applying a test equivalent to the "no rational trier of fact" test of Jackson. The dissenters did not address the extensive circumstantial evidence reviewed by the majority that lends substantial weight to the inference that there was a breaking.

Canaan also suggests that the evidence was not sufficient to support a finding beyond a reasonable doubt that Lori Bullock's killer had an intent to commit a felony at the time of the breaking. Pet. Reply at 21. The circumstantial evidence of intent — such as the ransacked apartment, the missing items, the fact that Bullock did not sleep in the nude but was found nude, with towels near the bed and water on the floor around the bathtub, the kicked-in bedroom door, and the lack of any apparent reason or relationship that might have led Bullock to permit him to enter the apartment late at night — was ample to support a finding of such intent beyond a reasonable doubt.

Canaan argues that the evidence also supports the reasonable inferences that he entered an open door or that he was admitted voluntarily by Bullock, "who may have been clad in a robe or a towel." Pet. Prelim. Mem. at 58. There was no direct evidence supporting either of those unlikely hypotheses, however. Canaan's suggestion that the door might have been open is an invitation for sheer speculation. There was no evidence that Bullock had even met Canaan before, let alone that she would have voluntarily admitted him late at night to an apartment when she was wearing only a robe or towel.¹³

13 Bullock shared her apartment with three other women. There was evidence that Canaan had been at the apartment twice about two and a half weeks earlier with the consent of her roommates, but when Bullock had not been present. R. 1008-09, 1024-27, 1056.

In sum, the state court's decision on the sufficiency of the evidence on the burglary charge was not contrary to and was not an unreasonable application of clearly established federal law. Even if this court reviewed the question de novo, as Canaan argues it should, the result would not change. The circumstantial evidence supports a reasonable inference beyond a reasonable doubt that Canaan's entry to the apartment was not authorized and therefore involved a "breaking," and that the breaking occurred with intent to commit a felony within, sufficient to support the burglary conviction and the burglary aggravating factor. Canaan is not entitled to relief on this basis.

IV. Jury Instruction Concerning Attempted Criminal Deviate Conduct — Due Process and Ineffective Assistance of Counsel

Canaan's next claim is based on an error in the trial court's instructions on attempted criminal deviate conduct. The instructions failed to inform the jury that conviction required proof beyond a reasonable doubt of specific intent to penetrate Bullock's sex organ with an object. Instead, the instructions permitted conviction if Canaan "knowingly" engaged in conduct that amounted to a substantial step toward completion of the crime, even if he acted without having the specific intent or conscious objective of such penetration. Canaan is entitled to relief on this basis from the attempted criminal deviate conduct conviction and from the death sentence that was based in part on that conviction.

First, the instructions on attempted criminal deviate conduct failed to comply with controlling Indiana law at the time of the crimes and trial. Canaan had a federal due process right to instructions that required proof beyond a reasonable doubt of every element of the crime. The instructions here did not do so. The error was not harmless, for intent was the contested issue on this charge.

Second, the claim of an independent federal due process violation is available to Canaan in this case. Although the error was not argued on direct appeal, Canaan has shown both cause and prejudice for his failure to present the claim earlier. In this regard his attorneys at trial and in the direct appeal provided ineffective assistance of counsel. The error was fairly presented in the post-conviction proceeding. Although the claim in the post-conviction proceeding was argued explicitly in terms of state law, not federal due process, the argument was still sufficient to give the Indiana Supreme Court fair notice of the readily obvious federal due process dimension of the claim.

Third, even if the due process claim itself were deemed procedurally defaulted, trial counsel's failure to raise the specific intent defect in the instructions amounted to ineffective assistance of counsel that caused prejudice to Canaan. That claim of ineffective assistance was presented squarely to the state courts and also may be reached in this federal habeas corpus action.

A. Due Process and the State Law Error in the Instructions

Canaan was charged with murder, burglary, and criminal deviate conduct. He was not found guilty of criminal deviate conduct but was found guilty of the attempted criminal deviate conduct. The jury and the sentencing judge also concluded that Canaan's commission of attempted deviate sexual conduct while murdering Lori Bullock was an aggravating factor within the scope of Ind. Code § 35-50-2-9(b)(1) that supported the death penalty.

The elements of a crime are defined by state law, not federal law, and asserted errors under state law are not cognizable in a proceeding under § 2254(a). Bloyer v. Peters, 5 F.3d 1093, 1098 (7th Cir. 1993), citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). But an error in instructions can raise a constitutional issue when the effect of the error is to withdraw from the jury an issue on which the federal Constitution requires proof beyond a reasonable doubt, including an element of a crime or the presence of an aggravator needed to support a death sentence. Smith v. Farley, 59 F.3d 659, 666 (7th Cir. 1995).

Under the due process clause of the Fourteenth Amendment, a defendant may be convicted and punished under a state's criminal law only when all elements required by state law are proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970) ("Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). Thus, as applied to jury instructions, the due process clause is violated when instructions effectively remove the prosecution's obligation to prove each element beyond a reasonable doubt. See, e.g., Francis v. Franklin, 471 U.S. 307, 313 (1985) (affirming habeas relief where instruction created mandatory presumption of intent to kill); Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979) (instruction creating conclusive presumption as to element of murder violated due process clause); Mullaney v. Wilbur, 421 U.S. 684 (1975) (instruction shifting burden to defendant to prove that killing occurred "in the heat of passion upon sudden provocation" violated due process clause); accord, United States v. Gaudin, 515 U.S. 506, 522-23 (1995) (finding error in failing to allow jury to decide materiality in fraud prosecution: "The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.").

In this case, Instruction Number 29 for the guilt phase provided in pertinent part:

ATTEMPT . . . To convict the defendant of the crime of Attempted Criminal Conduct an included offense of Criminal Deviate Conduct, as charged in Count III, the state must have proved each of the following elements:

The defendant

1. knowingly/intentionally

2. engaged in conduct that constituted a substantial step toward commission of the crime of Criminal Deviate Sexual Conduct.

3. which conduct was an attempt to penetrate the sex organ of Lori Bullock with an object, to wit: a knife

4. the defendant used deadly force.

R. 2247 (emphasis added). Instruction Number 12 at the penalty phase addressed the aggravating factors that could support a recommendation of death. The instruction described attempted criminal deviate conduct in pertinent part:

. . . The following aggravating circumstances exist, which justify the imposition of the death sentence. . . .

. . .

2) That the defendant, Keith B. Canaan, intentionally killed Lori L. Bullock while committing attempted criminal deviate conduct in that he knowingly engaged in conduct that constituted a substantial step toward the commission of the crime of criminal deviate sexual conduct which conduct was an attempt to penetrate the sex organ of the said Lori L. Bullock with an object. . . .

R. 2308 (emphasis added).

At the time of Canaan's crimes and the time of his trial, these instructions were erroneous as a matter of state law. They failed to require proof beyond a reasonable doubt that Canaan acted with specific intent to commit the crime of criminal deviate conduct — conscious intent to penetrate the victim's sex organ with an object.

The critical line of cases begins with Zickefoose v. State, 388 N.E.2d 507, 510 (Ind. 1979), which interpreted Indiana's then-new general attempt statute in an attempted murder case. The general attempt statute provides:

(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.

(b) It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted.

Ind. Code § 35-41-5-1 (emphasis added). The Indiana Supreme Court did not address the content of jury instructions in Zickefoose, but it clearly taught that conviction required proof of specific intent to commit the object crime: "Although there are somewhat varying definitions of what conduct actually constitutes an attempt, there is fundamental agreement on the two necessary elements of the crime. First, the defendant must have been acting with a specific intent to commit the crime, and second, he must have engaged in an overt act which constitutes a substantial step toward the commission of the crime." 388 N.E.2d at 510 (emphasis added). Nothing in this statement of Indiana law in Zickefoose suggested that the requirement of specific intent was limited to attempted murder.

Before Canaan's trial, the Supreme Court of Indiana then made clear the need for instructions that required proof beyond a reasonable doubt of specific intent to commit the object crime. In Smith v. State, 459 N.E.2d 355, 357 (Ind. 1984), the court reversed an attempted murder conviction and ordered a new trial because the instruction failed to require proof of specific intent to kill. The instruction allowed conviction if the defendant "knowingly engaged in conduct which constituted a substantial step toward the commission of murder," without requiring specific or conscious intent to kill. Id. at 358.

In Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), the court again reversed an attempted murder conviction and ordered a new trial because the instruction failed to require proof of specific intent to kill. The Spradlin court reviewed the case law in detail and then announced its decision in broad terms:

We hold that, by definition, there can be no "attempt" to perform an act unless there is a simultaneous "intent" to accomplish such act. Simply stated, in order to attempt to commit a crime, one must intend to commit that crime while taking a substantial step toward the commission of the crime. Here the jury was not instructed that such proof was required. For that reason, we reverse.

569 N.E.2d at 951. And in Taylor v. State, 616 N.E.2d 748 (Ind. 1993), the Indiana Supreme Court again reversed an attempted murder conviction because of the same problem in the instructions: "When applying Indiana's general attempt statute, Ind. Code Ann. § 35-41-5-1 (West 1986), we have emphasized that mere intent to take a certain action is not by itself sufficient to sustain a criminal conviction. The State must also prove that the defendant intended to commit the crime." 616 N.E.2d at 748, citing Zickefoose, 388 N.E.2d at 510.

Under the reasoning and broad language of Zickefoose, Spradlin, and Taylor, Canaan was plainly entitled under state law to an attempt instruction that required proof beyond a reasonable doubt that he intended to commit the crime of criminal deviate conduct, meaning that he consciously intended to penetrate the victim's sex organ with the knife.¹⁴

14 The Indiana Supreme Court also seemed to assume in Canaan I that such an intent was required in this case. In ruling on the sufficiency of the evidence challenge, the court wrote: "From this evidence, we find reasonable men could infer from the placement and direction of these thrusts an intent to penetrate the vagina itself. Apparently this is what the jury concluded since it convicted Canaan of attempted deviate sexual conduct." 541 N.E.2d at 907.

Because the effect of the erroneous instructions was to remove an element of the crime — specific intent — from the state's burden of proof, the instruction violated Canaan's right not to lose his liberty or life without due process of law under Winship, Mullaney v. Wilbur, and Sandstrom.

To avoid this conclusion, the state argues that there was no error here because the Indiana Supreme Court has not extended the specific intent cases beyond the crime of attempted murder. Resp. Br. at 34, citing Return Ex. H at 5-7. And in fact, in Richeson v. State, 704 N.E.2d 1008 (Ind. 1998), decided long after Canaan's state court conviction had become final, after final denial of his post-conviction petition, and after the Indiana Supreme Court had indicated that such specific intent was required in Canaan's case, see 541 N.E.2d at 907, the state court limited the Zickefoose, Spradlin, and Taylor specific intent rule to cases of attempted murder.

In Richeson, the Indiana Supreme Court affirmed a conviction for attempted battery in a "drive-by shooting" case. The instruction in the case did not explicitly require specific intent to "touch" the victims. Instead, it allowed conviction of attempt for "knowing" conduct that amounted to a "substantial step' toward such touching. 704 N.E.2d at 1009. The court acknowledged that it had "used broad language suggesting an intent to extend Spradlin to all attempt crimes. . . ." Id. The court quoted the language noted above from Taylor, 616 N.E.2d at 748, and from Spradlin, 569 N.E.2d at 951. See 704 N.E.2d at 1009 n. 2.

The Richeson court then concluded, however, that the holdings of those cases should be limited to attempted murder, which the court described as "a special case, deserving of special treatment." 704 N.E.2d at 1010. The special features of attempted murder, the court wrote, included the separate treatment that murder has long received as a crime, the special problems of "intent ambiguity" posed by the distance between the perpetrator and victim in attempted murder cases, id., and the severe penalties associated with attempted murder, where the maximum is 2.5 to 50 times higher than the penalty for attempted battery. Id. at 1011. "It is the higher sentence range for attempted murder in combination with the ambiguity involved in the proof of that crime that justifies the result in Spradlin and distinguishes other types of attempt prosecutions that involve either stringent penalties, or ambiguity, but not both." Id. (footnotes omitted, emphasis in original).

Richeson does not salvage Canaan's conviction for attempted criminal deviate conduct or his death sentence. This is so for three independent reasons.

First, in view of the Richeson court's emphasis on potential penalties to distinguish attempted murder from other attempt crimes, one cannot reliably predict that the state court would allow use of any attempt crime, without proof of specific intent, to support a death sentence. The qualitative difference between even a life sentence and a death sentence goes well beyond even the large quantitative differences between attempted murder and attempted battery that led the Richeson court to continue to insist on proof of specific intent in attempted murder cases.¹⁵

15 Also, this case presented a question of "intent ambiguity" along the lines discussed in Richeson. 704 N.E.2d at 1010. There was no ambiguity here concerning intent to kill, but there was arguable ambiguity concerning the intent to penetrate the sex organ, under the unusual and grisly facts in this case.

Second, Richeson itself stated that the instruction given in that case improperly applied the proper mens rea "to the substantial step rather than to the attempted result, the battery itself." 704 N.E.2d at 1010 n. 4 (denying relief because appellant had failed to argue the proper error). The instruction at Canaan's trial similarly tied the phrase "knowingly/intentionally" to the "conduct that constituted a substantial step toward commission" of the substantive crime. See R. 2247-48. Thus, Canaan has raised a valid objection even under Richeson. He has argued that the instructions needed to require proof beyond a reasonable doubt that his mental state (whether knowing or intentional) applied to the prohibited result — penetration of the victim's sex organ with an object — not to the conduct in which he engaged.¹⁶

16 Indiana's pattern criminal jury instruction on attempts (other than attempted murder) after Richeson reflects this understanding of the mens rea requirement. The pattern instruction states in relevant part: "To convict the Defendant of attempted [name object crime], the State must have proved each of the following elements: The Defendant: 1. acting with [the conscious purpose of] [a high degree of awareness that (his) (her) intended conduct would be] [set out conduct elements of object crime as charged] 2. did [set out conduct charged as substantial step] 3. which was conduct constituting a substantial step toward the commission of the crime of [name object crime]." Indiana Pattern Jury Inst. Criminal 2.01 (1999 Supp.). The pattern instruction avoids the phrase "specific intent" in light of the criticism of the phrase and its multiple meanings in Richeson.

Third, Canaan points out correctly that even if Richeson applies to death penalty aggravators, and even if the instruction here might be deemed sufficient under Richeson, the state court's decision in Richeson amounts to a later adverse expansion of the Indiana law of attempt that cannot be applied to his own case. See, e.g., Cole v. Young, 817 F.2d 412, 421 (7th Cir. 1987) (reversing denial of relief where trial court failed to instruct jury on element of offense that was established by appellate case law and later removed by state appellate court: "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law"), quoting Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964); accord, Marks v. United States, 430 U.S. 188, 196 (1977).¹⁷

17 Because the cases here were all decided by the state supreme court, the issue in Cole addressed by the dissent concerning decisions of intermediate state courts is not applicable. See 817 F.2d at 434 n. 4 (Easterbrook, J., dissenting).

In Richeson the Supreme Court of Indiana did not use the verb "overruled" to describe its treatment of Zickefoose, Spradlin, and Taylor, for the results of those decisions would survive the Richeson decision to limit their holdings to attempted murder cases. Nevertheless, the Richeson court expressly acknowledged that it had previously stated the rule of those cases in broad terms that applied to any attempt charges. 704 N.E.2d at 1009, n. 2. Also, as noted above, in Canaan's own case in Canaan I, the Supreme Court of Indiana had indicated that the attempt conviction required proof beyond a reasonable doubt that Canaan had the specific or conscious intent to penetrate the sex organ with the knife. See Canaan I, 541 N.E.2d at 907 (holding that evidence was sufficient to support conviction). Richeson effected a substantial change in state law of attempt for all offenses other than attempted murder. It cannot retroactively cure the failure to instruct the jury on the specific intent element of the attempt charge in Canaan's case.

B. The State Courts' Treatment of the Specific Intent Problem

At trial, Canaan's attorneys objected to Instruction 29 of the guilt phase on the ground that the evidence was insufficient to support giving the instruction on the attempt crime. The direct appeal, which was pursued by the same trial attorneys, repeated the objection to Instruction 29. Canaan I, 541 N.E.2d at 909. The trial attorneys did not argue at trial or in the direct appeal that the trial court had erred by failing to require proof beyond a reasonable doubt of specific or conscious intent to penetrate the sex organ before Canaan could be convicted of attempted criminal deviate conduct. See Return Ex. A at 180-87.

On direct appeal, the Indiana Supreme Court rejected the argument that the instruction was not justified in this case, first noting the elements of the crime of attempt — "the State must show: 1) the defendant acted with a specific intent to commit the crime, and 2) that he engaged in an overt act which constitutes a substantial step towards the commission of the crime." 541 N.E.2d at 909, citing Zickefoose v. State, 388 N.E.2d 507, 510 (Ind. 1979). The Indiana Supreme Court then recited that the instruction was proper if there was "evidence of probative value from which the jury could properly find the defendant guilty of such an offense," id., citing Goodpaster v. State, 402 N.E.2d 1239, 1243 (Ind. 1980), and, as discussed in Part II above, concluded that there was such evidence in this case. Id. The issue of specific intent in the attempt instructions was not raised until Canaan's post-conviction petition. See R. 10 (petition in trial court); Return Ex.

G at 46-57 (brief to Indiana Supreme Court). Canaan's post-conviction brief focused on the difference between "knowing" and "intentional" conduct. He argued that the attempt instruction was erroneous precisely because it permitted conviction based on only "knowing" conduct that constituted a substantial step toward the crime, without requiring proof beyond a reasonable doubt of conscious intent to cause the result of penetrating the victim's sex organ with the knife.

That argument had not been presented on direct appeal. Canaan's petition for post-conviction relief raised the issue and asserted that the instruction error violated his rights to due process of law under both the federal and state constitutions. R. 10. Canaan also alleged that the error was a "fundamental error." Id. The post-conviction trial court held that the attempt instruction had not been erroneous under state law and that the claim had been raised in the direct appeal and was thus barred by res judicata. R. 154-55. In later findings, the trial court held there was no fundamental error. R. 262.¹⁸

18 In finding no error, the trial court relied on Jackson v. State, 575 N.E.2d 617 (Ind. 1991). See R. 267. Jackson was an attempted murder case in which the instructions failed to require specific intent to kill but did require proof of conduct that was an "attempt to commit the crime of murder by attempting to kill" the victim. The Indiana Supreme Court held that the instruction was erroneous, but also held that it was not a fundamental error requiring reversal in the absence of a contemporaneous objection. 575 N.E.2d at 621. The court offered two reasons: first, that "attempting to kill" sufficiently communicated the concept of intent, and second, the issue at trial was identity rather than intent, for the gunman had shot the victim in the neck from only inches away. Id. The Indiana Supreme Court reached essentially the same conclusion in Swallows v. State, 674 N.E.2d 1317, 1318 (Ind. 1996) (finding instruction erroneous but denying post-conviction relief where no objection was made at trial and intent had not been disputed).
The attempt instructions in this case included similar language: "which conduct was an attempt to penetrate the sex organ of Lori Bullock with an object, to wit: a knife." Swallows and Jackson are limited, however, to cases in which intent was not a contested issue. See Swallows, 674 N.E.2d at 1318 ("where intent is not in issue, instructions which fail to advise the jury that specific intent to kill is required . . . do not necessarily constitute fundamental error"). In this case, intent was disputed with regard to the charge of attempted criminal deviate conduct, so the reasoning of Swallows and Jackson does not cure the error or demonstrate a lack of resulting prejudice.

Canaan's post-conviction brief to the Indiana Supreme Court argued that the attempt instruction amounted to a "fundamental error" under Indiana law, so that it could be raised despite the failure to raise it at the time of trial or in the direct appeal. Return Ex. G at 46, 50-53. Under Indiana law: "Fundamental error is error that, if not corrected, would deny a defendant fundamental due process." Jackson v. State, 575 N.E.2d 617, 621 (Ind. 1991); accord, Mitchell v. State, 726 N.E.2d 1228, 1242 (Ind. 2000) (fundamental error doctrine based on due process).

In his brief in Canaan II, Canaan presented the specific intent issue to the Indiana Supreme Court in terms of Indiana law, arguing the line of cases in which the state court had addressed jury instructions on attempt charges. See Return Ex. G at 46-57 (opening brief in Canaan II); Ex. I at 4-9 (reply brief in Canaan II); see generally Spradlin v. State, 569 N.E.2d at 951, and Jackson v. State, 575 N.E.2d at 620-21 (finding no fundamental error where instruction required proof that defendant "knowingly" did "attempt to commit the crime of murder," and where intent was not disputed at trial). Canaan did not argue separately that the instructional error was a violation of his federal due process rights because it relieved the state of the burden of proving all elements of the crime beyond a reasonable doubt, and he did not cite Winship, Sandstrom, Mullaney, or federal cases in that line of authority.

Canaan argued in the alternative that if the error were not deemed "fundamental," then his counsel's failure to object at trial and in the direct appeal denied him effective assistance of counsel. In his opening brief in Canaan II, Canaan pointed out that the specific intent element was clear under Zickefoose v. State, decided in 1979, years before he was tried, and that the failure to insist on a proper instruction could not have been a matter of trial strategy or a failure to anticipate a future legal development. Return Ex. G at 54 (opening brief in Canaan II). He argued further: "The Supreme Court has already decided that it would have been reversible error for the trial court to overrule such an objection if it had been made. If the giving of the Court's Instruction Number 29 is not fundamental error, then Canaan was denied the effective assistance of counsel resulting from counsel's failure to object to the instruction and failure to tender a correct listing of the essential elements of the offense." Id. at 54-55. Canaan repeated the point in his reply brief. Return Ex. I at 9. Also, the issue of effective assistance on this point was raised in the trial court in the post-conviction proceeding. The trial court ruled expressly that trial counsel's handling of the attempted criminal deviate conduct instructions had not deprived Canaan of effective assistance of counsel under the federal Constitution. R. 267.

In Canaan II, the Indiana Supreme Court did not address the argument about the attempt instructions, either on the merits or in terms of ineffective assistance. The court's entire discussion of the issue reads as follows:

Canaan alleges that he is entitled to post-conviction relief in the form of reversal of his conviction for Criminal Deviate Conduct. Specifically, he contends that his conviction for Attempted Criminal Deviate Conduct was invalid because (i) the trial court failed to instruct the jury on the elements of the offense; and (ii) there was insufficient evidence to show beyond a reasonable doubt that the acts constituting attempted criminal deviate conduct took place prior to the victim's death. As the post-conviction court properly concluded, this issue was decided adversely to Canaan on direct appeal. Canaan, 541 N.E.2d at 906. It is not available for relitigation here.

683 N.E.2d at 236, citing the state's post-conviction rule on waiver, Lamb v. State, 511 N.E.2d 444, 447 (Ind. 1987), and Ingram v. State, 508 N.E.2d 805, 807 (Ind. 1987).

The sufficiency of the evidence to support the conviction clearly had been decided in Canaan I, but the absence of a specific intent element in the instruction had not been decided in Canaan I. The state trial court and the Indiana Supreme Court did not explain their conclusion in Canaan II that the specific intent issue had already been decided adversely in Canaan I. An examination of the briefs in the direct appeal, cited and discussed above, shows that Canaan's lawyers failed to argue the correct point under Indiana law — that the state was required to prove beyond a reasonable doubt that he had acted with specific intent to penetrate the sex organ. See Return Ex. A at 180-87. Thus, the Indiana Supreme Court did not decide the issue in Canaan I. In Canaan II, the court never expressly addressed Canaan's argument that the instruction error amounted to a fundamental error, nor his alternative contention that he was denied effective assistance of counsel in this regard.

C. The Due Process Claim — Procedural Default and "Cause and Prejudice"

The due process claim based on the instructional error has been procedurally defaulted. The claim was not presented at trial or in the direct appeal, and the Indiana Supreme Court has never ruled on the claim on the merits. See Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992) (procedural default "occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court").

As a result of the procedural default, this court may reach the merits of the due process claim of erroneous jury instructions on attempt only if Canaan shows either (1) that he had cause for the default and suffered actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider his claim would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Mills v. Jordan, 979 F.2d 1273, 1277 (7th Cir. 1992).

The "miscarriage of justice" prong does not apply here. Canaan's challenge to the jury instructions rests upon asserted legal error. Reliance on such error would not establish that his conviction (or the finding of a statutory aggravator sufficient for making Canaan eligible for the death penalty under Indiana law) resulted in a "fundamental miscarriage of justice." Rather, the Supreme Court has equated the miscarriage of justice standard with a claim of actual innocence, as distinct from "legal" innocence. See Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Canaan's challenge to the jury instructions does not demonstrate his actual innocence for the reasons explained above regarding the sufficiency of evidence on the charge of attempted criminal deviate conduct.

This leaves the cause and prejudice test. "Cause" for a procedural default exists if the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982).

The deficient performance of counsel can satisfy the "cause" element of the cause and prejudice test. Murray v. Carrier, 477 U.S. at 488. This cause is available only if that ineffectiveness itself constitutes an independent constitutional claim. Id. at 488-99; Edwards v. Carpenter, 529 U.S. 446, 452 (2000); Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir. 1995). An attorney's failure to object to erroneous instructions can satisfy the Strickland test for ineffectiveness. E.g., Kubat v. Thieret, 867 F.2d 351, 369-70 (7th Cir. 1989) (affirming decision vacating death sentence where attorney provided ineffective assistance regarding instructions for sentencing).

Canaan has satisfied the cause prong of the cause and prejudice test. As discussed below in Part IV-D, as well, the failure of trial counsel, who also handled the direct appeal, to present the proper objection amounted to ineffective assistance of counsel.

In terms of the performance prong of the Strickland test, state law on the question was clear at the time of the trial, and there was no imaginable strategic or tactical reason for failing to object to the absence of a specific intent element in the attempt instruction. See Gray v. Lynn, 6 F.3d 265, 268-69 (5th Cir. 1993) (finding cause and prejudice based on ineffective assistance of counsel in failing to object to erroneous instruction on specific intent and reversing denial of writ in attempted murder case); accord, Harris v. Warden, 152 F.3d 430, 440 (5th Cir. 1998) (finding that counsel was ineffective in failing to object to erroneous instruction on specific intent in attempted murder case, but denying relief because no prejudice was shown where defendant had not argued a lack of specific intent to kill).

Canaan has also satisfied the prejudice prong. The prejudice prong requires a showing of "a reasonable probability" that the result of the trial would have been different. Strickler v. Greene, 527 U.S. 263, 289 (1999) (finding both cause and prejudice in procedural default of claim under Brady v. Maryland). The petitioner is not required to show that a different verdict is more likely than not, but whether the trial resulted "in a verdict worthy of confidence." Id. at 289-90, quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995) (adopting Strickland formulation of prejudice standard for Brady claims presented on habeas review).

The issue of Canaan's intent was put squarely before the jury. Apart from Canaan's identity defense to the whole case, the issue of intent was essentially his only defense to the charge of attempted criminal deviate conduct. On the charge of criminal deviate conduct, counsel argued: "Whoever committed that horrible crime of murder, promiscuously stabbed that woman's body everywhere. The sex organ wasn't singled out. It was a wholesale multiple stabbing of this woman and the evidence establishes that whoever did this did not have the specific intent to commit criminal deviate conduct." Supp. R. 66-67. A moment later, counsel repeated the point regarding the attempt instruction: "So there is a lack of intent and I ask you to apply that lack of intent to something that will be coming called an included offense of attempted criminal deviate conduct. They still have to prove the requisite intent, not a promiscuous stabbing of the body, but an intent, a specific intent to attempt to penetrate the sex organ and that is not here." Id. at 67-68.¹⁹

19 The reference in the argument to "specific intent" does not cure the problem in the instructions. The trial court gave jurors the standard instruction to the effect that they should follow the instructions as given by the court, not as stated by counsel. See R. 2256. In Gray v. Lynn, the Fifth Circuit held that counsel's correct statements of the law regarding specific intent in closing argument could not cure the prejudice caused by the trial court's erroneous instructions. 6 F.3d at 271.

For the reasons explained above in Part II, the evidence was sufficient to permit the jury to find specific intent beyond a reasonable doubt. But the evidence would not have required any reasonable jury to find specific intent beyond a reasonable doubt. On this point, it is worth recalling that the sufficiency of the evidence was close enough that two justices of the Indiana Supreme Court would not even have allowed the charge to go to the jury. Canaan I, 541 N.E.2d at 912-13 (DeBruler, J., dissenting).

In this respect, the case is similar to the Fifth Circuit's decision in Gray v. Lynn, where habeas relief was granted on a nearly identical basis in an attempted murder case. At trial the court had instructed the jury that the state was required to prove specific intent "to kill or inflict great bodily harm." 6 F.3d at 269. Inclusion of the "great bodily harm" option was an error as a matter of state law. The error had a federal constitutional dimension because it relieved the state of the burden of proving an element of the crime beyond a reasonable doubt. Trial counsel had failed to object to the erroneous instruction. After finding that counsel's failure fell below the performance standard of Strickland, the Fifth Circuit found that the failure caused prejudice to the defendant. Although the defendant had told the victim he was going to "blow your brains out," he struck the victim on the head with the gun, then fired three shots at very short range, each of which missed the victim. The Fifth Circuit found that the evidence was sufficient to permit a finding of specific intent to kill, but that the defendant's failure "to take advantage of several golden opportunities to kill" also would have permitted a reasonable doubt on the issue of specific intent. Id. at 269.

The Fifth Circuit's decision in Harris v. Warden provides a useful comparison. There a trial court had given the same erroneous instruction allowing conviction for attempted murder with specific intent to kill or inflict great bodily harm, and trial counsel had failed to object. The Fifth Circuit agreed that the failure to object amounted to ineffective assistance under the performance prong of Strickland, but divided two to one on the prejudice prong. The majority found no prejudice where the defendant had not argued a lack of intent to kill, and Gray and other similar cases were distinguished on this basis. 152 F.3d at 439-40. (The dissenting judge would have granted relief, arguing that the case had not been tried on a lack of intent theory precisely because the defense lawyer had not understood the applicable law. Id. at 441-42 (DeMoss, J., dissenting).)

A due process violation caused by an error on the elements of the crime is subject to harmless error analysis. See California v. Roy, 519 U.S. 2, 5-6 (1996).

The state has argued that the error was harmless in this case. The state has argued, however, that the error was harmless because the evidence was sufficient to support the conviction. That much is true, in the court's view, but it falls well short of showing that the error was harmless. Intent was very much at issue on the attempted criminal deviate conduct charge. Although the evidence was sufficient to permit a guilty verdict on attempt, a properly instructed jury would not have been required to find, beyond a reasonable doubt, specific intent to penetrate the victim's sex organ.

The state also has argued that even if Canaan can show cause and prejudice for his failure to raise the due process claim in Canaan I, he defaulted the claim in Canaan II because he presented this issue to the Indiana Supreme Court only in terms of Indiana law, arguing a line of cases in which the state court had addressed jury instructions on attempt charges.

Even in Canaan II, Canaan did not argue the claim expressly in terms of a distinct federal constitutional claim. That failure could amount to a distinct ground for procedural default. E.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (summarily reversing appellate court's finding that constitutional claim had been preserved though not argued to state courts in federal constitutional terms); Riggins v. McGinnis, 50 F.3d 492, 494-95 (7th Cir. 1995) (finding procedural default where petitioner failed to argue challenge to jury instruction in terms of federal due process rights).

Both before and after Duncan, however, the Seventh Circuit has looked to four factors to determine whether a claim argued expressly in terms of state law has nevertheless been fairly presented to state courts in federal constitutional terms. The factors are: "(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." Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001), quoting Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001); accord, Moleterno v. Nelson, 114 F.3d 629, 634 (7th Cir. 1997); McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997). "If none of the four factors is present," the Seventh Circuit has explained, "then this court will not consider the state courts to have had a fair opportunity to consider the claim." Wilson, 243 F.3d at 327-28 (emphasis in original).

In this case, the second, third, and fourth factors are present, despite the lack of an explicit reference to federal due process jurisprudence. Canaan explained in detail the failure to instruct the jury on an essential element of the attempt charge. His detailed arguments to the state courts satisfy the third factor because they "would surely call to the Indiana judicial mind the federal due process standards of Winship and its progeny." Pet. Reply Br. at 27. This court agrees. The federal due process dimension of Canaan's claim should have been obvious to the state courts, who are of course fully familiar with that principle of constitutional law. See, e.g., Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998) (treating as a claim of "fundamental error" a claim that jury instructions included mandatory presumption contrary to Sandstrom v. Montana and Francis v. Franklin and thus alleged denial of due process). Canaan's argument should have called to mind the well-established federal due process rule of Winship, Mullaney, and Sandstrom that, even though state law governs the elements of a crime, each such element must be proved beyond a reasonable doubt and the jury must be so instructed. Similarly, the fourth factor is present: the fact pattern argued by Canaan was well within the mainstream of constitutional litigation after Winship and its progeny.

The second factor is also present. Canaan argued in detail that the error was a "fundamental error" under Indiana law. At least in the context of this error in failing to instruct the jury about an essential element of the attempt charge, that argument and supporting case citations gave a sufficiently clear signal that he was arguing a denial of federal due process rights. The Indiana doctrine of fundamental error is based in substantial part on federal due process law. The Indiana Supreme Court describes "fundamental error" as an error which, if not corrected, "would deny a defendant fundamental due process." Jackson v. State, 575 N.E.2d at 621 (finding that similar error in attempt instructions was not fundamental error where instruction required that conduct be "attempt" to commit underlying crime, and where intent was not disputed), citing Smith v. State, 459 N.E.2d 355, 357 (Ind. 1984) (holding that omission of specific intent element in attempted murder instruction was fundamental error). Tracing the roots of the fundamental error doctrine from Jackson to Smith, one finds a citation in Smith to Nelson v. State, 409 N.E.2d 637, 638 (Ind. 1980), which in turn cited Wilson v. State, 51 N.E.2d 848 (Ind. 1943). Wilson itself relied on and discussed in detail both state and federal constitutional due process standards. 51 N.E.2d at 854-56.

In Willis v. Aiken, 8 F.3d 556 (7th Cir. 1993), the Seventh Circuit examined the Indiana doctrine of fundamental error in detail. The petitioner claimed that his federal due process rights were violated by a pattern jury instruction informing jurors pursuant to the Indiana Constitution that they were the judges of both the law and the facts. The petitioner had failed to make a timely objection at trial, but he argued in his post-conviction proceeding that the error was "fundamental." The Indiana Court of Appeals held there had been no due process violation but did not specify whether its decision was based on federal or state grounds. The Seventh Circuit held that the state court decision rested on an adequate and independent state law ground that barred federal review, absent cause and prejudice. 8 F.3d at 566-67. Recognizing that the Indiana case law on "fundamental error" was "labyrinthine" and that it often included the language of federal constitutional claims, the Seventh Circuit concluded that Indiana courts applying the fundamental error doctrine "engage in a very particularized assessment of the impact of the error on the particular case." Id. at 567. The Seventh Circuit also found that "Indiana does not equate federal constitutional error with fundamental error." Id. Thus, Willis v. Aiken shows that merely referring to "fundamental error" is not automatically equivalent to arguing a federal due process violation, but more specific analysis is required.

In the more specific context of jury instructions that fail to require proof beyond a reasonable doubt of all elements of the crime, the federal constitutional dimension of the "fundamental error" doctrine is apparent — especially in cases involving instructions about the intent element of attempt crimes. In a case similar to this one, the Indiana Supreme Court described a fundamental error as "a substantial, blatant violation of due process." Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001) (trial court's failure to instruct jury that specific intent was required for attempted murder conviction was fundamental error where intent was at issue), citing Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998), and Taylor v. State, 717 N.E.2d 90, 93 (Ind. 1999). Both Brown and Taylor speak in terms of due process and the right to a fair trial.

Likewise, in another case similar to this case, the Indiana Court of Appeals reversed a conviction for being an accomplice to attempted murder because the trial court had failed to instruct the jury that specific intent to kill was a required element. Woodson v. State, 767 N.E.2d 1022, 1028 (Ind.App. 2002), aff'd on rehearing, 778 N.E.2d 475 (Ind.App. 2002). Woodson arose on post-conviction review because the defendant had failed to object at trial to the defective instruction. The state court treated that error as a fundamental error that could be addressed on collateral review, at least where the accomplice defendant's intent was disputed at trial.

Thus, in this context of jury instructions that omit an essential intent element for an attempt charge, the Indiana doctrine of fundamental error applies and is based in substantial part upon the need to protect federal constitutional rights. Canaan's fundamental error argument to the Indiana Supreme Court therefore counts as a factor toward a finding that he gave the state courts a fair opportunity to consider a federal due process claim based on the same alleged error. Together with the presence of the third and fourth factors in this case, Canaan gave the state courts sufficient notice of his federal due process claim based on the jury instructions on attempt.

The Seventh Circuit's decisions in Ellsworth v. Levenhagen, 248 F.3d 634 (7th Cir. 2001), and Verdin v. O'Leary, 972 F.2d 1467 (7th Cir. 1992), are closely on point on this issue of fair presentment of the federal constitutional issue. In Ellsworth, the federal claim was that the trial court's ex parte communications with jurors had violated the defendant's Sixth Amendment right to be present at every critical stage of the proceeding. The petitioner had not argued federal law to the Indiana courts, but the other three factors were present. He had cited an Indiana case that relied on federal law, his argument should have called to mind the federal constitutional standard, and the facts he alleged were "well within the mainstream of constitutional litigation." 248 F.3d at 639. Writing for the court, Judge Coffey held that these three factors meant that the petitioner's assertion in state court of a "right to be present" was sufficient to give the state courts fair notice of the federal claim. Id.

Similarly, in Verdin, Judge Ripple explained for the court that the habeas court's task at bottom is to assess "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." 972 F.2d at 1476. The Verdin court held that references to "due process," without further explanation, had not fairly presented to the state courts a challenge to jury instructions on the burden of proof as to the difference between murder and manslaughter. Id. at 1478-79. Unlike the challenge here to the failure to require proof beyond a reasonable doubt of the mens rea requirement for an attempt crime, the problem in Verdin was more subtle, and the federal dimension less obvious.

At the same time, the Verdin court found that the petitioner had fairly presented a Sixth Amendment claim based on ex parte communication with jurors. Although the petitioner had not cited federal cases, he had cited state cases applying or referring to the federal Constitution. His references to his "right to be present at critical stages of his trial" were specific enough to call to mind the federal constitutional right, and the facts alleged were "within the mainstream of constitutional litigation." Id. at 1480. Similarly here, based on the combination of a detailed argument that should have called to mind the Winship line of cases, the facts within the mainstream of such cases, and the due process dimension of fundamental error argument, the Indiana courts had a fair opportunity to rule on Canaan's Winship challenge to the attempt instructions. See also, e.g., Falconer v. Lane, 905 F.2d 1129, 1134 (7th Cir. 1990) (affirming grant of relief based on instructional error; petitioner gave state courts adequate notice of federal constitutional dimension of claim).²⁰

20 In fact, in Canaan II itself, the Indiana Supreme Court recognized this link between due process and the doctrine of fundamental error. In the portion of the opinion immediately preceding the discussion of the specific intent issue, the court rejected several unrelated challenges to jury instructions that Canaan has not pursued on federal habeas review. The court explained that "concerns over due process do sometimes merit invocation of a fundamental error exception to the contemporaneous objection rule on direct appeal," but added: "we think its availability as an exception to the waiver rule in post-conviction proceedings is generally limited to those circumstances we set forth in Bailey v. State, 472 N.E.2d 1260, 1263 (Ind. 1985): `[D]eprivation of the Sixth Amendment right to effective assistance of counsel, or . . . an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal.'" Canaan II, 683 N.E.2d at 235 n. 6. Canaan argued his specific intent challenge to the attempted criminal deviate conduct instruction on precisely these grounds. He argued that the trial court error was fundamental and that, even if it was not, his counsel at trial and in the direct appeal were ineffective for failing to raise the specific intent issue. Nevertheless, the Indiana Supreme Court did not apply this fundamental error doctrine to the valid claim for relief based on the specific intent element, and did not address the alternative Sixth Amendment claim.

Accordingly, Canaan's procedural default in Canaan I was excused by cause and prejudice, in the form of ineffective assistance of counsel at trial and in the direct appeal. In Canaan II, Canaan gave the state courts sufficient notice of the federal due process claim, but the state courts did not address it on the merits. Under the well-established federal due process rule of Winship, Mullaney, and Sandstrom, Canaan was entitled to an instruction requiring proof beyond a reasonable doubt of specific or conscious intent to penetrate the victim's sex organ with a knife. In the absence of such an instruction on that essential element under state law, his conviction for attempted criminal deviate conduct and the use of that conviction as an aggravating circumstance to support the death penalty violated his right to due process of law and his Eighth Amendment rights under the United States Constitution.

The trial court's reliance on the invalid aggravating factor cannot be deemed harmless. Therefore, the death sentence must also be vacated for a new hearing and decision on the penalty for the murder conviction. See Sochor v. Florida, 504 U.S. 527, 532 (1992) (in "weighing" states like Indiana, where one aggravating factor is invalid, death sentence must be set aside unless invalid factor was harmless error or state court reweighs the evidence and valid factors); Stringer v. Black, 503 U.S. 222, 232 (1992) (same).

D. Ineffective Assistance of Counsel

Even if the federal due process claim had not been fairly presented to the state courts in Canaan II, Canaan would still be entitled to relief from the attempted criminal deviate conduct conviction and the death sentence based in part upon that conviction. His trial counsel provided ineffective assistance on this critical point both at trial and in the direct appeal, which the same attorneys handled.

Although a federal habeas court does not reexamine questions of state law, see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), when the constitutional right at issue concerns the possible ineffective assistance of counsel, state issues that counsel did not pursue can be considered in light of Strickland. See Mason v. Hanks, 97 F.3d 887, 894 (7th Cir. 1996); Stewart v. Duckworth, 93 F.3d 262, 268 (7th Cir. 1996). In other words, the federal habeas court can examine whether counsel's failure to pursue a state law issue fell below what was objectively reasonable and whether the defendant suffered prejudice as a result. Strickland, 466 U.S. at 687-88; Mason, 97 F.3d at 892-93.

The ineffective assistance of counsel claim was fairly presented to the state courts. As explained above, Canaan argued in Canaan II that the failure to instruct on specific intent was fundamental error, which would excuse his lawyers' failure to object to the defective instruction. He argued in the alternative that, even if the error was not "fundamental" under state law, then he was denied effective assistance of counsel in this regard. See Return Ex. G at 54-55; Return Ex. I at 9. Canaan did not develop the point at length, but after he had already developed the fundamental error argument, little more needed to be said to the state court, which is fully familiar with the federal standards for effective assistance of counsel, as Canaan II itself shows. See 683 N.E.2d at 229. Canaan gave the Indiana Supreme Court a fair opportunity to consider and decide his alternative claim for ineffective assistance of counsel regarding the specific intent issue. The Indiana Supreme Court made no decision on the merits of this alternative claim, so the usual AEDPA deference under 28 U.S.C. § 2254(d) also does not apply to this claim.

Canaan satisfies the performance prong of Strickland. State law at the time of his crimes and trial plainly required proof beyond a reasonable doubt of specific intent to penetrate the victim's sex organ to support a conviction for attempted criminal deviate conduct. Mere knowing conduct that amounted to a substantial step toward such penetration was not sufficient as a matter of state law. The applicable state law had been decided in Zickefoose in 1979. The state court's later retrenchment on the issue, which effectively limited the specific intent requirement in Zickefoose to attempted murder charges, did not occur until Richeson, decided in 1998. (Even under Richeson, moreover, the instruction given in Canaan's trial would be inadequate, as discussed above at pages 60-62.) There was no imaginable tactical or strategic reason not to ask for the specific intent language, which would have fit squarely with trial counsel's theory of defense on the attempt charge. See Harris v. Warden, 152 F.3d 430, 440 (5th Cir. 1998) (finding that counsel failed to perform adequately by failing to object to erroneous instruction on specific intent in attempted murder case); Gray v. Lynn, 6 F.3d 265, 268-69 (5th Cir. 1993) (same).

The element of prejudice is also present. Strickland requires Canaan to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694. Again, the issue of Canaan's intent was put squarely before the jury. Apart from identity, intent was essentially the only defense to the charges of criminal deviate conduct and attempted criminal deviate conduct. See above at pages 71-74.

The evidence was sufficient to permit the jury to find specific intent beyond a reasonable doubt, but not to require a finding of specific intent beyond a reasonable doubt. The question was close enough that two justices of the Indiana Supreme Court would not even have allowed the charge to go to the jury. The discussion of prejudice above at pages 71-74 and the Fifth Circuit's decisions in Gray v. Lynn, 6 F.3d at 269, and Harris v. Warden, 152 F.3d at 439-40, also apply here.

Because the trial court's instructions failed to instruct the jury on an essential element of the crime of attempted criminal deviate conduct, and because trial counsel were ineffective in failing to object on this ground at trial, Canaan is entitled under the United States Constitution to a new trial on the conviction for attempted criminal deviate conduct. And again, because the trial court weighed the conviction for attempted criminal deviate conduct as an aggravating factor that supported the decision to sentence Canaan to death, and because the court's reliance on that factor cannot be deemed harmless, the death sentence must also be vacated for a new hearing and decision on the penalty for the murder conviction. See Sochor v. Florida, 504 U.S. at 532; Stringer v. Black, 503 U.S. at 232.

V. Destruction of Evidence

One key piece of evidence against Canaan was a latent fingerprint. A police officer testified that he recovered the latent print from a cardboard spaghetti box found just outside Bullock's apartment. He also testified that the box was later thrown away because it had been soaked in juice from thawing meat and would have rotted otherwise. A fingerprint examiner testified that the print came from Canaan. Canaan contends that the State negligently handled and intentionally destroyed this material evidence. He argues that such alleged negligent handling and intentional destruction violated his federal constitutional rights (1) to a fair trial; (2) to confront witnesses against him; (3) to be proved guilty beyond a reasonable doubt; and (4) to fundamental fairness at the penalty phase of his trial. He also seeks discovery and an evidentiary hearing on the matter. On this claim, the court sees no grounds for relief, discovery, or an evidentiary hearing.

A. The Claim on the Merits

"The Supreme Court has held that the constitutional right to present a meaningful defense includes access to evidence which is material to guilt or punishment." Henry v. Page, 223 F.3d 477, 480 (7th Cir. 2000) (citing cases). The Supreme Court's decisions in Arizona v. Youngblood, 488 U.S. 51, 58 (1988), and California v. Trombetta, 467 U.S. 479 (1984), "govern cases in which the government no longer possesses the disputed evidence." United States v. Gomez, 191 F.3d 1214, 1218 (10th Cir. 1999). Under Trombetta, the state has a duty to preserve evidence which (1) "possesses an exculpatory value that was apparent before the evidence was destroyed," and (2) is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 489.

However, before a reviewing court considers the constitutional materiality of the evidence in question, the petitioner must satisfy a threshold requirement. Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992). "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id., quoting Arizona v. Youngblood, 488 U.S. at 58. Whether bad faith on the part of the police is present turns on the "police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Arizona v. Youngblood, 488 U.S. at 56 n. *.

Evansville police officer Ford testified that he recovered the latent print from a dry portion of a box of spaghetti that had been found just outside Bullock's apartment. Ford detected the print by dusting the box with a magnetic powder. He then used an adhesive "lift" to remove the print from the box and to preserve it for analysis. Ford admitted that he did not photograph the latent print before lifting it from the box, nor did he log his taking of the latent print from the box. R. 1238. Ford conceded that the only evidence linking the print to the box was his own oral testimony. R. 1239. The latent print in question was one of many latent prints that the police recovered and processed. Ford also testified that the cardboard box itself had been soaked in meat juices and that the police threw away such perishable items after they had been processed. R. 1235, 1237.

In his direct appeal, Canaan argued that the latent fingerprint identified as his should not have been admitted into evidence and that its admission violated his right to due process of law. He argued that the police handling of the evidence had been faulty, and he raised the possibility of tampering or falsification of the print. Canaan I, 541 N.E.2d at 903. Thus, this claim was squarely presented to the state courts, and Canaan has exhausted his state remedies regarding it. The Indiana Supreme Court rejected Canaan's challenge to the admissibility of the fingerprint. The court wrote in Canaan I that "the mere possibility of tampering will not render evidence inadmissible." Id. The court treated the issue as one of credibility rather than admissibility. Id. at 904.

Officer Ford can be criticized for failing to photograph the latent print before lifting it from the box. He also can be criticized for failing to document the recovery of the latent print. The evidence here falls short, however, of supporting an inference that Ford lied to the trial court and the jury about the source of the print. Canaan offers no explanation for how Ford, if he had been trying to frame Canaan by lying about the source of the latent print, would have come up with a latent print from Canaan — i.e., where he would have found a latent print that he could lie about and still be sure that the FBI fingerprint examiners would identify as Canaan's.

Canaan bases much of his argument on a supposed conflict between the testimony of Ford and another evidence technician, Officer Pointer. Pointer described a number of perishable items, including the spaghetti box. When asked what he had done with that evidence, he replied: "These items when we were collecting them were starting to thaw and like the meat the blood was starting to run and everything and they were placed in separate containers and since we couldn't process them they were later disposed of." R. 903-04. A moment later, he added that the items were handed over to Officer Ford. R. 904.

Canaan argues that Pointer's testimony contradicts Ford's testimony about being able to obtain a fingerprint from the spaghetti box before it was destroyed. Canaan's lawyers, however, did not ask Pointer any more specific questions to challenge the possible conflict. Without more specific confrontation about that possible conflict, the point has little weight.

Canaan also argues that the spaghetti box should have been preserved. Perhaps so, but there is no basis for finding in this case that the police acted in bad faith in disposing of the box. The print had already been removed, and there is no evidence that the police had any reason to believe that the box would be of any use to the defense, or the prosecution for that matter. In fact, there still is no reason to believe that the spaghetti box would have provided any exculpatory value for the defense. During closing arguments, defense counsel said: "That's Keith's fingerprint, no question about that," without trying even to imply that there had been any tampering. Supp. R. 83. The failure of police to preserve the spaghetti box thus did not deprive Canaan of a fair trial.

Even if bad faith could be shown with respect to disposal of the box of spaghetti, Canaan's claim falters. "If bad faith is shown, the defendant . . . must still show that the evidence would be material and favorable to his defense." United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000). For evidence to meet the standard of constitutional materiality, it "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 488-89. Canaan does not explain how the spaghetti box had any exculpatory value.

B. Motion for Evidentiary Hearing

Canaan has also filed a separate motion for an evidentiary hearing on the issue of destruction of evidence. Evidentiary hearings on federal collateral review are rarely permitted:

(e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). "Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). The Williams Court linked the "failure to develop" standard with the cause inquiry for procedural default. See id. at 444.

A federal court's ability to hold an evidentiary hearing in order to supplement the record when the petitioner "has failed to develop the factual basis of a claim in State court proceedings" is severely circumscribed. 28 U.S.C. § 2254(e)(2); see also Williams v. Taylor, 529 U.S. 420, 437 (2000) ("Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.").

Boyko v. Parke, 259 F.3d 781, 789-90 (7th Cir. 2001).

Canaan's claims are not based on a "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or "a factual predicate that could not have been previously discovered through the exercise of due diligence." In fact, the trial court conducted an evidentiary hearing during the trial to address the admissibility of the latent fingerprint and the issue of the destruction of the spaghetti box. See R. 1219-42. An evidentiary hearing is required only if a more extensive factual record must be compiled to decide an issue. Newell v. Hanks, 283 F.3d 827, 838 (7th Cir. 2002) (finding § 2254(e)(2) inapplicable).

Canaan argues that he is entitled to a new hearing before this court on the circumstances of the destruction of the spaghetti box because the Supreme Court of Indiana misstated the facts. In Canaan I, the court wrote that Officer Ford had testified "he was able to lift a set of fingerprints from a dry portion of the spaghetti box. These were later identified as Canaan's fingerprints." 541 N.E.2d at 903. In fact, Ford testified that he lifted only two latent fingerprints from the spaghetti box, and only one of those was identified as Canaan's. There was no "set" of fingerprints. The state court also wrote that there was "no evidence a photograph of the carton would have revealed a visible print on the dry portion used by the police officers to lift Canaan's print." Id. at 904. In fact, Ford testified during the evidentiary hearing that it would have been possible to photograph the latent print before it was lifted from the box. R. 1241-42.

These factual misstatements by the state court are not material and do not demand an evidentiary hearing on the entire matter. The difference between a set of fingerprints and one print makes no difference. A print from one finger is enough to identify the person who made it. See United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001). The misstatement about the ability to photograph the latent print was also immaterial. The critical point is that no evidence suggests that Ford was lying about the source of the latent print. Ford was apparently reluctant to concede that he might have made a mistake by failing to take a photograph of the latent print, but the Indiana Supreme Court's erroneous statement about the testimony does not undermine its basic reasoning on this issue.

Canaan also argues that the discovery of problems in the integrity of the FBI's crime laboratories supports his call for an evidentiary hearing. This is grasping at straws. There is no genuine dispute over whether the latent print was correctly identified as Canaan's. Nor has Canaan identified any problems with the FBI laboratory that are related at all to his case. The request for an evidentiary hearing is based on nothing but speculation and guilt by association.

C. Request for Discovery

Unlike other civil proceedings, habeas corpus proceedings do not entitle a prisoner to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899 (1997). A petitioner can obtain discovery only "if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Id. at 904, citing Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts. Rule 6 precludes discovery except when conducted pursuant to leave of court and then only after the party seeking the discovery makes a showing of "good cause." 28 U.S.C. § 2254, Rule 6. A habeas petitioner cannot use discovery for "fishing expeditions to investigate mere speculation." Calderon v. United States District Court for the Northern District of California, 98 F.3d 1102, 1106 (9th Cir. 1996). "Conclusory allegations are not enough to warrant discovery under Rule 6." Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).

In Bracy, the Court held that the petitioner had met this showing for his judicial bias claim by presenting "`specific allegations' that his trial attorney, a former associate of [the trial judge] in a law practice that was familiar and comfortable with corruption, may have agreed to take this capital case to trial quickly so that petitioner's conviction would deflect any suspicion the [other] rigged . . . cases might attract." Bracy, 520 U.S. at 909; see also Harris v. Nelson, 394 U.S. 286, 299 (1969) ("where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry"). While the Court noted that discovery was warranted under the unusual facts of Bracy, it reiterated that the scope of such relief was a matter confided to the discretion of the district court. Bracy, 520 U.S. at 909.

Canaan's request for discovery relates to his claim that the fingerprint analysis by personnel at the FBI laboratory might have been flawed. He rests his speculation of deficiency in his case on a report prepared by the Inspector General of the Department of Justice.

Canaan has not shown that full discovery and development of this information would have made a difference. Again, there is no serious basis for questioning the accuracy of the identification of the latent fingerprint. Canaan's request is nothing more than a request for a fishing expedition, which does not constitute "good cause" for discovery. See Harris v. Johnson, 81 F.3d 535, 540 (5th Cir. 1996).

VI. Prosecutorial Misconduct

During the closing argument of the penalty phase of the trial, the prosecutor argued as follows:

Protection, the second reason you have for sentences. Protect the community and protect our fellow citizens. Only the death penalty can do that in this case. The death penalty will insure the community is protected, insure that the other people — well, you can say keep him in prison for the rest of his life or for a very long time and that will help protect the community. It may protect those on the streets if he doesn't ever get out, but it won't protect the other inmates in prison. . . .

MR. STANDLEY: OBJECTION, Your Honor. The defendant requests a hearing outside the presence of the jury.

R. 2351-52. The defense then moved for a mistrial. The court denied the motion for mistrial but admonished the jury to disregard the comments about "what may happen to prisoners." R. 2353-54. In his direct appeal, Canaan argued that the trial court erred by failing to grant his motion for a mistrial. The Indiana Supreme Court rejected the claim, finding that this brief line of argument was not so prejudicial as to cause "grave peril" to the defendant and that the trial judge had not abused his discretion in admonishing the jury rather than declaring a mistrial. Canaan I, 541 N.E.2d at 909.

Canaan now argues that the trial court violated his due process rights by denying his motion for a mistrial and that the Indiana Supreme Court incorrectly or unreasonably applied controlling United States Supreme Court law in making its determination. The Seventh Circuit has explained in this context:

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).

Aliwoli v. Cater, 225 F.3d 826, 829-30 (7th Cir. 1997).

The Indiana Supreme Court recognized these principles in evaluating the claim of prosecutorial misconduct, though it addressed the issue in terms of the "grave peril" standard drawn from Hensley v. State, 497 N.E.2d 1053, 1057 (Ind. 1986), Carman v. State, 396 N.E.2d 344, 346 (Ind. 1979), and Maldonado v. State, 355 N.E.2d 843, 848 (Ind. 1976).

Canaan has not shown that the Indiana Supreme Court reached a conclusion opposite to that reached by the United States Supreme Court on a question of law or that the Indiana Supreme Court decided Canaan's case differently than a United States Supreme Court decision on a set of materially indistinguishable facts. There was no error under the "contrary to" prong of § 2254(d)(1).

The Indiana Supreme Court's decision also did not amount to an "unreasonable application" of Darden v. Wainwright, 477 U.S. 168 (1986). Canaan has not shown that the Indiana "grave peril" standard is materially different from the federal standard: "The relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. at 181, quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974). The Indiana Supreme Court found that the circumstances here did not satisfy the "grave peril" standard:

In this case the defense attorney cut short the prosecutor's argument. The prosecutor did not attempt to repeat the statements, and did not stray uninterrupted into forbidden ground as did the prosecutor in Hance. There the prosecutor went on something close to a tirade, and used any number of improper cliches, including his fear for the safety of his own family, of other prisoners, and even spoke of the Vietnam War. Clearly, no admonishment would have cured the error there. But here, the court properly instructed the jury to disregard the improper comment.

In determining whether "grave peril" resulted, we look to the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct. Maldonado, 265 Ind. at 499, 355 N.E.2d at 848. We find no grave peril under these circumstances.

Canaan I, 541 N.E.2d at 909.²¹

21 There is room to argue whether the prosecutor engaged in misconduct at all. On direct appeal, the state had conceded that the prosecutor's argument was improper. Canaan I, 541 N.E.2d at 908. The concession was based on Hance v. Zant, 696 F.2d 940 (11th Cir. 1983), which held that it was improper to urge consideration for the future safety of other inmates as a factor in capital sentencing. This holding, however, as also noted in Canaan I, had been expressly overruled in Brooks v. Kemp, 762 F.2d 1383, 1398-99, 1411 (11th Cir. 1985) (en banc), vacated on other grounds, 478 U.S. 1016 (1986). Brooks held that although such arguments are dramatic, they are directly relevant to the consideration of whether a defendant would remain a threat to society. Brooks, 762 F.2d at 1411. After noting the Eleventh Circuit's ruling in Brooks, however, the Indiana Supreme Court apparently treated the line of argument based on the safety of other inmates and prison guards as improper, Canaan I, 541 N.E.2d at 908, and for purposes of argument here, the court assumes the prosecutor's remarks were improper.

The Indiana Supreme Court considered the nature and seriousness of the prosecutor's comment, the adequacy of the admonition to the jury to disregard the comment, and the fact that the comment was isolated. Its conclusion that Canaan had not been placed in "grave peril," meaning that he was not denied a fair trial because of the prosecutor's comment, was certainly "at least minimally consistent with the facts and circumstances of the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997). Canaan is not entitled to relief on this basis under the "unreasonable application" prong of § 2254(d)(1).²²

22 On December 30, 2002, Canaan filed a motion to stay this proceeding so that he may seek leave from the Indiana Supreme Court to file a successive petition for post-conviction relief from his death sentence based on Ring v. Arizona, 122 S.Ct. 2428 (2002). It is far from clear that Ring might benefit Canaan. The jury unanimously recommended death (and the trial court followed that recommendation) where both aggravating factors were crimes upon which the jury had reached unanimous verdicts beyond a reasonable doubt. In any event, because Canaan is entitled to relief from his death sentence on other grounds, the court sees no reason to stay this proceeding. Also, as the Seventh Circuit has noted, the Supreme Court has not yet held Ring to be retroactive. Trueblood v. Davis, 301 F.3d 784, 786 (7th Cir. 2002). The motion for stay is hereby denied.

Conclusion

Petitioner Keith Canaan committed a brutal murder. He was properly convicted of that murder and the burglary he committed. Canaan's rights under the United States Constitution were violated, however, with respect to the death sentence for the murder and the conviction for attempted criminal deviate conduct. The court is issuing a writ of habeas corpus vacating Canaan's death sentence and his conviction for attempted criminal deviate conduct. The writ leaves the State of Indiana free to resentence Canaan for the murder and to sentence him for the first time for the burglary and the habitual offender enhancement. The writ also leaves the State of Indiana free to conduct a new trial on the charge of attempted criminal deviate conduct and a new death penalty hearing, provided the State files appropriate documents seeking any such relief within 180 days after the writ becomes final.

So ordered.