In the

United States Court of Appeals

For the Seventh Circuit

No. 17-2212

TOMMY CLARK,

Petitioner-Appellant,

v.

JACQUELINE LASHBROOK,

Respondent-Appellee.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 14 C 03936 — John J. Tharp, Jr., Judge.

ARGUED SEPTEMBER 14, 2018 — DECIDED OCTOBER 17, 2018

Before BAUER, HAMILTON, and SCUDDER, Circuit Judges.

BAUER, Circuit Judge. In 1999, petitioner-appellant Thomas

Clark was convicted of two counts of first-degree murder and

one count of robbery. The Illinois Appellate Court affirmed his

conviction. Clark filed a petition for writ of habeas corpus

under 28 U.S.C. § 2254. The district court denied the petition.

We affirm.
2 No. 17-2212

I. BACKGROUND

In November 1997, Thomas Clark, Amos Chairs, and Traye

Booker were charged with the robbery and murder of Kevin

Martin and Julio Meza at Johnny’s Club, a bar owned by

Martin. The theory of the prosecution was that Chairs, Clark,

and Booker, all members of the Gangster Disciples street gang,

agreed to steal marijuana from Martin and Meza. With no

direct evidence of who killed Martin and Meza, the prosecution sought to prove the murders occurred during the course

of the robbery, and presented circumstantial evidence showing

Clark was in the back room of Johnny’s Club where the

murders took place and participated in the robbery.

Key testimony was provided by Stacy Lynn Jones, who was

dating Chairs at the time of the murders. She testified that

Chairs was a “Governor” within the Gangster Disciples and

Clark was his “Assistant Governor.” In August 1997, Jones

was present when Chairs told Clark of the plan to steal the

marijuana. One week later, Jones and Clark waited in a car

while Chairs went inside a bar on 59th and San Francisco to

meet Martin. Chairs returned and said that Martin was not

there, but Meza was with a kilo of cocaine. Chairs concocted a

plan to steal the cocaine, by deceiving Meza with a bankroll

imitating thirty thousand dollars. The plan was abandoned

because they did not have enough cash to create a convincing

bankroll. Jones offered no testimony that Clark verbally

responded to either of Chairs’ plans. 

A few days later, on August 21, 1997, Chairs and Jones

picked up Clark. Chairs explained to Jones that he was going

to drop her off and that “we are going to take the bud from the
No. 17-2212 3

Mexican and Kevin.” Shortly thereafter, Jones exited the

vehicle, and Clark took her place in the front passenger seat.

When Chairs returned to pick Jones up, he told her that the

“Mexican” had refused to give up the drugs, but that “folks

took care of it.”

Also important to the prosecution was the testimony of

Tanya Robinson, a bartender who occasionally worked at

Johnny’s Club. Robinson testified that she was drinking at the

bar on August 21, 1997, at around 7:00 p.m., when she noticed

Clark, Chairs, Booker, and Martin were talking. Robinson then

exited the bar and walked to a friend’s house nearby. When

she returned to the bar, the front door was locked. She knocked

on the door and observed Clark, Chairs, and Booker sitting at

the bar. They got up and walked towards the bedroom in the

back of the bar. Martin unlocked the door and let Robinson in,

then turned the volume on the jukebox up and proceeded to

the bedroom himself. Robinson then testified that later when

she went to the restroom adjacent to the bedroom she heard

Chairs say “Where’s the stuff at, where’s the shit at?” A voice

with a Mexican accent, Meza, then begged “please don’t do

this, please don’t do this.” Robinson testified that a voice she

did not recognize said “He knows where it’s at. He knows

where it’s at.” By eliminating the voices she recognized,

Robinson concluded the voice was likely Clark’s. Robinson

stated that she saw Booker leave the room and heard someone

else leave through the back door. 

Booker threatened to kill Robinson if she told the police

anything. Nevertheless, Robinson identified Chairs and Booker

in a police lineup, and Clark in a photo array. All three were

arrested not long after.
4 No. 17-2212

Assistant State’s Attorney Patrick Kelly also testified. Kelly

interviewed Clark to see if he was willing to cooperate with the

investigation. Clark denied that he had ever been to Johnny’s

Club and claimed he was at his girlfriend Shawna’s house on

the day of the murders. Later, after being informed he would

be placed in a lineup, Clark divulged to Kelly that he had been

to Johnny’s Club three times, but that he and Chairs merely

drove past it the night of the murders. Following a short break,

Kelly informed Clark that Shawna did not support his alibi.

Clark replied “Shawn[a] is lying and everyone else is lying and

this is a conspiracy.”

In a joint trial, Chairs was convicted; Booker was acquitted

on all counts. In August 1999, Clark was tried separately, and

convicted. Clark was sentenced to seven years imprisonment

for the robbery, and life in prison without the possibility of

parole for the murders.

After an unsuccessful appeal in the Illinois state court,

Clark filed a petition for a writ of habeas corpus in the district

court arguing numerous grounds for relief. Clark has narrowed the basis for his appeal to improper statements made by

the prosecutor during closing arguments. First, that the

prosecutor referred to Clark’s failure to testify and, second,

that Clark was deprived of the right to a fair trial when the

prosecutor introduced new facts in the rebuttal portion of his

closing argument.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996,

codified at 28 U.S.C. § 2254, allows federal courts to grant a

writ of habeas corpus if a state court decision was (1) contrary
No. 17-2212 5

to, or an unreasonable application of, clearly established

federal law as determined by Supreme Court precedent; or

(2) rested on an unreasonable factual determination. 28 U.S.C.

§ 2254(d)(1)-(2). This standard is “difficult to meet” and

“highly deferential.” Makiel v. Butler, 782 F.3d 882, 896 (7th Cir.

2015) (quoting Cullen v. Pinholster, 563 U.S. 170 (2011)). We

review a district court’s denial of a habeas petition de novo.

Stechauner v. Smith, 852 F.3d 708, 714 (7th Cir. 2017). 

A state-court decision involves an unreasonable application

of Supreme Court precedent under § 2254(d)(1) if (1) it correctly identifies the governing legal rule from Supreme Court

case law, but unreasonably applies it to the facts of the case;

(2) it unreasonably extends a legal principle from Supreme

Court precedent to a new context where it should not apply, or

(3) it unreasonably refuses to extend that principle to a new

context where it should apply. Williams v. Taylor, 529 U.S.

362, 407–08 (2000). Where Supreme Court cases “give no clear

answer to the question presented, let alone one in [the petitioner's] favor,” it cannot be said that the state court unreasonably applied Supreme Court precedent and thus “relief is

unauthorized.” Wright v. Van Patten, 552 U.S. 120, 125–26

(2008).

A. Prosecutor’s Comment on Clark’s Failure to Testify

Clark agues that the government impermissibly shifted the

burden of proof to him by commenting on his failure to testify,

when the prosecutor stated the following:

He [Clark's counsel] wants you to find the

defendant not guilty because nobody saw

Tommy Clark go out around the back. Nobody
6 No. 17-2212

saw Tommy Clark around the back. Nobody

saw Tommy Clark come back out. Nobody saw

Tommy Clark come and take the money from

the cash register. No one saw that. Well, when

this defendant talked to the police, what did he

tell the police? He tells the police, I don't know

nothing about no murders. I don't know anything about that. So then Assistant State's Attorney Kelly talks to him a little bit longer, and we

come with up [sic] story with the girlfriend.

Well, that doesn't quite work, because we talked

to the girlfriend. Okay. Listen, Mr. Clark, you're

about to stand in a lineup. [objection overruled].

Facts. I want to talk to you about—you want to talk

about facts? I didn't hear one fact from this table over

here regarding a statement. (Emphasis added.)

This statement by the prosecutor was made in rebuttal to an

argument by Clark’s attorney that there was no direct evidence

about what Clark did in the bedroom where the victims were

found. Clark’s attorney implored the jury: “When you apply

the law, you have to apply facts with it, too. You have got to

apply facts, and if the facts aren't there, the law says that you

must find this man not guilty.”

Following the closing arguments, the trial court gave the

jury the following instruction: “The fact that the defendant did

not testify must not be considered by you in any way in

arriving at your verdict.”

To obtain relief, Clark must have a Supreme Court case to

support his claim, and that Supreme Court decision must have
No. 17-2212 7

clearly established the relevant principle as of the time of his

direct appeal. Yancey v. Gilmore, 113 F.3d 104, 105–07 (7th Cir.

1997). The case Clark relies upon most heavily is Griffin v.

California, 380 U.S. 609, 614 (1965), which held that “the Fifth

Amendment ... forbids either comment by the prosecution on

the accused's silence or instructions by the court that such

silence is evidence of guilt” Id. at 615. After reciting numerous

questions lingering about what occurred the day of the

murder, the prosecutor in Griffin directly referred to the

defendant’s failure to testify stating: “These things he has not

seen fit to take the stand and deny or explain. And in the whole

world, if anybody would know, this defendant would know.

Essie Mae is dead, she can't tell you her side of the story. The

defendant won't.” Id. at 610–11. Furthermore, the trial judge

instructed the jury that it could draw adverse inferences from

the defendant’s silence, stating:

As to any evidence or facts against him which

the defendant can reasonably be expected to

deny or explain because of facts within his

knowledge, if he does not testify or if, though he

does testify, he fails to deny or explain such

evidence, the jury may take that failure into

consideration as tending to indicate the truth of

such evidence and as indicating that among the

inferences that may be reasonably drawn there

from those unfavorable to the defendant are the

more probable.

Id. The Supreme Court went on to note that the state court's

instructions had impermissibly shifted the burden of proof
8 No. 17-2212

onto the defendant and acted as “a penalty imposed by courts

for exercising a constitutional privilege.” Id. at 614.

The district court correctly held that Griffin was not

implicated by the facts here, because the prosecutor’s comments, at most, indirectly referenced Clark’s refusal to testify.

See Yancey v. Gilmore, 113 F.3d 104, 107 (7th Cir. 1997) (“Griffin

involved only direct comment upon the accused's decision not

to testify.”); Diggs v. Hulick, 236 Fed. App'x 212, 215 (7th Cir.

2007) (Griffin “prohibited only ‘direct’ prosecutorial references

to the defendant's failure to testify; Griffin did not reach the

issue of whether a prosecutor may comment on the evidence

in such a way that indirectly refers to a defendant's silence.”);

and Freeman v. Lane, 962 F.2d 1252, 1260 (7th Cir. 1992)

(“Comments by the prosecutor on the state of the evidence that

may indirectly refer to the defendant's silence ... have not been

the subject of direct Supreme Court guidance.”). 

What Clark assumes is that the prosecution’s statement is

only susceptible to one meaning—that the defense put forth no

evidence because Clark failed to testify. However, in their

proper context, the prosecutor’s statement seems to refer to

two things. First, that while the prosecution was left with

circumstantial inculpatory evidence, the prosecution believed

the arguments advanced by the defense were weak and

unsupported by exculpatory evidence. Second, that Clark gave

inconsistent statements to ASA Kelly and Kelly’s testimony

went unchallenged during cross-examination.

Another contrast to Griffin, and buttressing the district

court holding, is the fact that the trial court here gave the jury

the correct instruction, that it must not consider Clark’s refusal
No. 17-2212 9

to testify as evidence of guilt. We “presume that juries follow

the court’s instructions.” Thomas v. Cook County Sheriff's Dep't,

604 F.3d 293, 311 (7th Cir. 2009). 

The prosecutor’s statement did not invite the jury to

consider Clark’s decision to not testify as evidence of his guilt.

To the extent that any prejudice arose due to the ambiguous

nature of the statement, the clear jury instructions cured it. This

portion of Clark’s habeas petition was correctly denied.

B. Prosecutor’s Argument Concerning the Gangster

Disciples

During closing arguments, Clark’s attorney argued that the

prosecution had failed to prove beyond a reasonable doubt

that Clark had agreed to aid Chairs in the robbery scheme.

Clark’s attorney stated:

Agrees to aid. Where's the agreement? He didn't

say a word. Where's the agreement? Or attempts

to aid. Where's the attempt? What was the

attempt? What was the attempt to aid in the

commission of this crime, of the murder, of this

robbery? Where is it? Where's the attempt?

During his rebuttal argument, the prosecutor responded,

stating:

In this case, the rank was held by governor,

[Chairs]. His assistant governor was [Clark]. He

doesn't—the Gangster Disciple guys, like these

two, they don't sit around in front of Stacy

[Jones] and lay out the whole plans for 'em.

They are not stupid. It doesn't take that. It takes
10 No. 17-2212

a nod, a wink, jumping in the front seat, to know

you are going along with the plan. That's reality.

That's how the Gangster Disciples operate.

Clark's attorney objected, the trial judge overruled the

objection and the prosecutor continued:

You don't need that. You think ... this Governor,

needed to hear every time he made an assertion

about how they were going to rob Kevin and the

Mexican? Do you think he needed to hear

[Clark] say, oh yeah, gov, I'm right with you,

let's go get the bud and the jewelry, and maybe

get the money. Of course not. That's nonsense.

That's not real life. It's not how it works. But he's

there, and he's agreeing with them, and more

importantly, when push comes to shove, when

it's August 21st, 1997, and when the gov makes

a declaration to his girlfriend that they are going

to go take the bud, he jumps in the front seat

and he's right there, ready to go.

Clark argues that these statements by the prosecutor

deprived him of his right to a fair trial by implying, without

admitted evidence or a chance for rebuttal, that the Gangster

Disciples entered into agreements with a “nod” or a “wink”

and that Clark winked or nodded to signal his agreement to

participate in the robbery.

The applicable “clearly established Federal law” here is set

forth in Darden v. Wainwright, 477 U.S. 168, 181 (1986), which

explained that “a prosecutor's improper comments will be held

to violate the Constitution only if they ‘so infected the trial
No. 17-2212 11

with unfairness as to make the resulting conviction a denial of

due process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (citing

Darden). Darden instructed a reviewing court to make two

inquiries regarding prosecutorial statements: “1) Were the

prosecutor's statements improper; and 2) Was the defendant

prejudiced?” Bartlett v. Battaglia, 453 F.3d 796, 802 (7th Cir.

2006), citing Ruvalcaba v. Chandler, 416 F.3d 555, 565 (7th Cir.

2005). 

Here, the state court decision relied only on the second

inquiry. Thus, the district court’s opinion was limited to

whether the prosecutor’s remarks were prejudicial. The court

must consider a number of factors to determine whether the

defendant was prejudiced by the comments: “(1) whether the

prosecutor misstated the evidence, (2) whether the remarks

implicate specific rights of the accused other than the right to

a fair trial, (3) whether the defense invited the response, (4) the

trial court's instructions, (5) the weight of the evidence against

the defendant, and (6) the defendant's opportunity to rebut.”

Ellison v. Acevedo, 593 F.3d 625, 636 (7th Cir. 2010). 

Here, the prosecutor did not misstate the evidence. The

reference to a “nod” and a “wink” were examples of nonverbal communication which can signal assent. There was no

suggestion by the prosecution that Clark winked or nodded.

These examples were given by the prosecutor to show their

similarity to an action Clark did take—getting into the front

seat of the car when Chairs told him it was time to commit the

robbery. Placed in their full context, these statements were not

an introduction of evidence of the procedures of the Gangster

Disciples. The prosecutor merely attempted to persuade the
12 No. 17-2212

jury that they could find an agreement in the absence of an

explicit, verbal confirmation.

Further, there was evidence as to how the Gangster

Disciples operate, by the testimony of Stacy Lynn Jones. Her

statements were evidence that Clark showed his agreement

with Chairs’ plans nonverbally, by getting in the front passenger seat of the car to drive to Johnny’s Club. 

The remaining factors all also weigh against Clark’s claim.

No specific right is implicated by the prosecutor’s purported

misstatement of the evidence, other than the right to a fair trial.

Clark invited the response, by arguing there was no evidence

that he agreed to participate in the robbery that led to the

murders.

The trial court’s instruction to the jury immediately

followed the state’s argument, and directed the jury that “the

evidence which you should consider consists only of the

testimony of the witnesses and exhibits which the Court has

received” and that:

Closing arguments are made by the attorneys to

discuss the facts and circumstances in the case,

and should be confined to the evidence and to

reasonable inferences to be drawn from the

evidence. Neither opening statements nor closing arguments are evidence, and any statement

or argument made by the attorneys which is not

based on the evidence should be disregarded.

The weight of the evidence presented was sufficient to

prove the state’s case against Clark, even in the absence of
No. 17-2212 13

the prosecutor’s comments. Jones’ testimony showed Clark’s

agreement to participate in the robbery. Robinson’s testimony

placed him in the room where the murders occurred as an

active participant in the robbery. The evidence showed Clark’s

agreement through his participation in Chairs’ plans, and no

prejudice resulted from the prosecutor’s argument that the

“Gangster Disciples” operate without explicit verbal agreements.

Though Clark did not have a chance to rebut the closing

argument, the significance of the comments was not great and

the jury instructions counteracted any prejudice which may

have arose. Additionally, Clark did have a chance to rebut

Jones’ testimony, which the prosecutor’s rebuttal argument

was based on. He did not do so.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

denial of Clark’s petition.