In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3251

JEREMY DAVID GROSS,

Petitioner-Appellant,

v.

STANLEY KNIGHT,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 07 C 547—Richard L. Young, Judge.

ARGUED DECEMBER 10, 2008—DECIDED MARCH 26, 2009

Before POSNER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. On August 26, 1998, Jeremy Gross

shot and killed Christopher Beers while robbing a convenience store in Indianapolis. Gross was convicted of

murder and sentenced to life in prison without parole,

in accordance with a jury’s recommendation. Gross

claims that he received ineffective assistance of counsel

because his attorney never advised him of his right to

testify at the sentencing phase of his trial. The Indiana

courts denied Gross post-conviction relief from his sen-
2 No. 07-3251

tence, holding that he had suffered no prejudice

from his counsel’s conduct. Gross filed a petition for a

writ of habeas corpus in the district court, which denied

his claim because the state courts reasonably applied

federal law. We now affirm.

I. BACKGROUND

In the early morning hours on August 26, 1998, Gross

and accomplice Joshua Spears entered the Convenient

Food Mart in western Indianapolis where Gross was a parttime employee. Gross, who had been smoking marijuana, brandished a gun and fired six rounds, striking

the cashier Christopher Beers three times and mortally

wounding him. Gross and Spears stole $650 from the

store, ripped out the phone lines, grabbed the video

recorder, and fled. Gross admitted to the robbery and

shooting when he was arrested later that morning.

Gross was charged with murder, felony murder, conspiracy to commit robbery, and robbery. Defense lawyer

Robert Hill was appointed to defend Gross. Hill and his

team presented an intoxication defense at trial, but

their primary focus was on the penalty stage of the proceedings.

Forty-two witnesses testified for the defense during

the sentencing phase to tell the story of Gross’s childhood.

The testimony revealed that Gross and his sister

had suffered physical violence, sexually inappropriate

interactions, and rampant substance abuse. At one point,

Gross’s mother Cindy sprayed lighter fluid onto a couch
No. 07-3251 3

where his father was sleeping and lit it on fire. After his

parents divorced, Gross was forced to share his home

with a variety of undesirable house guests, including a

child molester and a prostitute who slept nude on the

couch with assorted men. At times during his childhood,

Gross did well in structured environments such as foster

care, a youth center, and the Indiana Boys School, but he

always returned to his mother’s care, where he inevitably reverted to a life of drinking and drugs.

Gross did not testify before the jury. The only time

the jury heard him speak was in excerpts from a taped

news conference introduced into evidence. The jury

convicted Gross and unanimously recommended a sentence of life in prison without parole.

On June 9, 2000, the court conducted a sentencing

hearing. The judge employed a two-phase analysis to

determine the appropriate sentence. First, he addressed

the state’s argument that the court should override

the jury’s recommendation and impose the death penalty. The judge agreed with the jury that the state

had proved an aggravating factor—the intent to

kill—beyond a reasonable doubt, and that aggravating

factors outweighed mitigating factors. Nonetheless, the

court declined to impose the death penalty.

The court then proceeded to the second phase and

conducted its own analysis to determine whether the

sentence should be life without parole or a term of years.

The court heard testimony regarding victim impact, and

Gross expressed his remorse and apologized to Beers’s

family. After considering this testimony and the infor-
4 No. 07-3251

Gross was also sentenced for the related charges of robbery 1

and conspiracy to commit robbery. On direct appeal, the

Indiana Supreme Court reduced Gross’s conviction for robbery from a Class A to a Class B felony and remanded the case

for resentencing on that charge. Gross v. State, 769 N.E.2d 1136,

1140 (Ind. 2002). However, it rejected Gross’s argument that a

sentence of life in prison was manifestly unreasonable

and upheld his murder sentence. Id. at 1140-41.

The petition also presented other allegations, including 2

double jeopardy violations and ineffective assistance of appellate counsel. None of these claims are relevant for purposes

of this appeal.

mation contained in the presentence investigation

report, the court sentenced Gross to life in prison without parole for the murder charge.1

Gross filed a Petition for Post Conviction Relief,

alleging that his trial counsel was ineffective due to his

failure to apprise Gross of his right to testify at the sentencing phase of trial. At a post-conviction relief 2

hearing on March 18, 2005, Hill, Gross’s trial counsel,

testified to the following:

Q: Did you ever discuss with Jeremy the possibility of testifying at this trial?

A: I don’t remember discussing with [sic] Jeremy.

I’m sure we did it and I’m sure I just told him it

wasn’t going to happen.

Q: Do you remember, or would it be your practice

to advise him that he had a right to testify at either

the guilt phase or the penalty phase?
No. 07-3251 5

The court granted certain relief regarding Gross’s con- 3

spiracy sentence that is not relevant to this appeal.

This confusion arose from the fact that Jeremy Gross’s 4

father, Jeffrey Gross, testified during the trial.

A: I don’t remember whether I did or not here.

I’m sure I would have mentioned it, but I would

have instructed him that no, it wasn’t going to

happen.

Q: So if you spoke to him about it, would you

characterize it as a real discussion about it or just

more of a unilateral decision?

A: It would be more of a kind of a discussion I’d

have with my 9-year-old about whether he’s going

to clean his room, that this is the way it’s going

to be, that kind of discussion. No, there wasn’t a

give and take, if that’s what you mean.

Hill later clarified that it would have been his practice

to let Gross know that he had the right to testify. However,

he stated that he would have “[told] him it’s not going

to happen” because, in his view, it is a “huge mistake”

for defendants to testify in death penalty trials.

Gross’s petition for post-conviction relief from his

murder sentence was denied. The post-conviction court 3

based its decision in part on an erroneous conclusion

that Gross had in fact testified at the sentencing phase

of his trial. Notwithstanding this error, the Indiana

4

Court of Appeals affirmed on July 18, 2006. It acknowledged the post-conviction court’s faulty finding, but held
6 No. 07-3251

Gross made several additional claims that are not the sub5

ject of this appeal.

that Gross had suffered no prejudice because he had

presented no evidence that he ever desired to testify

during the penalty phase of his trial.

On April 30, 2007, Gross filed a pro se petition for a writ

of habeas corpus in the Southern District of Indiana.

He claimed once again that Hill was constitutionally

ineffective for failing to discuss with him the option of

testifying at the penalty phase of trial. The district court 5

denied Gross’s petition, holding that the Indiana Court

of Appeals took the constitutional standard seriously

and did not apply it unreasonably to the facts of the

case. Gross now appeals.

II. ANALYSIS

To be entitled to federal habeas relief from a state

court judgment, a petitioner must show that he is being

held in violation of the Constitution or laws of the

United States. 28 U.S.C. § 2254(a); Virsnieks v. Smith, 521

F.3d 707, 721 (7th Cir. 2008). Where an alleged violation

was adjudicated on the merits in state court, federal

courts may grant relief only if the state determination was

contrary to, or an unreasonable application of, clearly

established federal law, or based on an unreasonable

determination of the facts. 28 U.S.C. § 2254(d); Arredondo

v. Huibregtse, 542 F.3d 1155, 1167-68 (7th Cir. 2008).

We review the district court’s denial of Gross’s petition
No. 07-3251 7

de novo and its factual determinations for clear error.

Williams v. Bartow, 481 F.3d 492, 497 (7th Cir. 2007).

Gross claims that he received ineffective assistance of

counsel in violation of the Sixth Amendment. To prevail

on this claim, Gross must show that (1) his counsel’s

performance was deficient; and (2) this deficient performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 687 (1984); Osagiede v. United States, 543 F.3d 399, 408

(7th Cir. 2008). The Indiana Court of Appeals denied

Gross’s claim because he presented no evidence that he

ever desired to testify at trial and thus suffered

no prejudice from his counsel’s conduct. It did not

address whether Hill’s conduct was deficient. Because

we agree that Gross has failed to meet his burden to

show the prejudice required under Strickland, we

confine our review to this prong as well.

To demonstrate that he suffered prejudice, Gross

must establish that there is a reasonable probability that

the result of the proceeding would have been different

but for counsel’s deficient performance. Strickland, 466

US. at 694. Gross does not need to show that it was

more likely than not that Hill’s conduct altered the outcome of the case. Julian v. Bartley, 495 F.3d 487, 498 (7th

Cir. 2007). Instead, this court has defined a “reasonable

probability” as a “better than negligible” chance. Id.;

United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246

(7th Cir. 2003).

The determination of the Indiana Court of Appeals that

Gross failed to demonstrate prejudice was not based on an

unreasonable application of federal law or determination
8 No. 07-3251

Because we focus solely on the prejudice prong of the 6

analysis, we express no opinion regarding whether Hill’s

typical course of conduct was deficient in light of prevailing

professional norms.

of the facts. The only evidence Gross cites to support

this claim is Hill’s testimony at the hearing. Hill did not

remember any specific conversation with Gross regarding his right to testify, and he merely speculated as

to what his typical practice would be. In fact, Hill stated

that his usual practice would have been to inform a

defendant that he had a right to testify, but that he

would have instructed him not to. He did not, at any

6

time during his testimony, indicate that Gross had

actually expressed a desire to testify or that he had prohibited him from doing so. In fact, he referred to Gross

as an “easy client” who followed his recommendations.

As the Indiana Court of Appeals noted, Gross had

every opportunity to explain at his post-conviction

hearing that Hill never informed him of his right to

testify and that he would have testified had he been so

informed. He failed to do so. Gross made such an argument in briefs to the Indiana Court of Appeals and this

court, but arguments are not evidence. In fact, Gross

declined to testify at the hearing altogether, and he

never presented any actual evidence that he was not

advised of this right to begin with. The only evidence

was Hill’s speculation. It was therefore entirely reasonable for the state court to find that Gross had failed to

demonstrate prejudice as required under Strickland.
No. 07-3251 9

Gross relies heavily on Underwood v. Clark, 939 F.2d 473

(7th Cir. 1991), for his argument that his testimony was

unnecessary to establish prejudice. In Underwood, we

rejected a rule requiring that the defendant protest his

lawyer’s actions during the trial. Id. at 476. In so doing,

we noted that “the defendant might well feel too intimidated to speak out of turn.” Id. We held that to later

maintain an action for ineffective assistance of counsel, “[t]he defendant need not protest [at trial] and the

judge need not question him.” Id. Thus, Underwood established a principle that a lack of evidence at trial demonstrating that a defendant was prohibited from testifying

is not fatal to his claim. See id.

But the situation we discussed in Underwood is not

before us. The Indiana Court of Appeals did not inquire

as to whether Gross had expressed a desire to testify at

trial; it simply reviewed the record from the post-conviction relief hearing. Considering that Gross had already

brought a claim against his trial attorney for ineffective

assistance of counsel, the concern that he would be “too

intimidated to speak out of turn” does not apply to the

hearing. Nothing in Underwood changes the fact that

Gross was required to present the post-conviction court

with some evidence that he would have liked to testify

or that he was prohibited from doing so.

In fact, we rejected the defendant’s ineffective assistance

of counsel claim in Underwood because he had not produced sufficient evidence to establish that he was prevented from testifying. See id. at 475-76. We held that “the

defendant must produce something more than a bare,
10 No. 07-3251

Indiana law has changed since Gross’s trial. For defendants 7

sentenced after June 30, 2002, the court must impose the

sentence recommended by the jury. Ind. Code § 35-50-2-9(e).

unsubstantiated, thoroughly self-serving, and none too

plausible statement that his lawyer . . . forbade him to

take the stand.” Id. at 476. We suggested that an affidavit from the defendant’s lawyer might suffice. Gross

now argues that Hill’s testimony is adequate evidence

because it establishes that he either failed to inform

Gross of his right or forbade him from testifying. But

this misconstrues Hill’s testimony. Hill merely speculated as to what course of action he would take if, hypothetically, a defendant in a death penalty trial expressed the

desire to testify. This is certainly not sufficient to

render the decision of the Indiana Court of Appeals

unreasonable in light of the facts.

Moreover, even if Gross had proved that he would

have testified if properly advised, we are not persuaded

that there is a better than negligible chance his testimony

would have resulted in a different outcome. At the time

Gross was sentenced, the judge was not bound to

follow the jury’s sentencing recommendation. Ind. Code 7

§ 35-50-2-9(e) (2000). To impose a sentence of life in

prison, the jury was required to find that the state

proved an aggravating circumstance and that the aggravating circumstance outweighed the mitigating

factors, id. § 35-50-2-9(k), but the court made the final

sentencing determination after taking the same factors

into account, id. § 35-50-2-9(e).
No. 07-3251 11

The aggravating factor in this case was the intentional

killing of Christopher Beers. Considering the vast amount

of mitigating evidence the defense offered on Gross’s

behalf, we do not believe that there is a “better than

negligible” chance that Gross’s expression of remorse

would have been sufficient to convince the jury that

an intentional murder did not outweigh the mitigating

factors. Once the jury made this finding, the judge was

free to disregard its recommendation and impose a term

of years. Instead, the judge concluded that life in prison

was warranted after conducting a careful analysis considering the evidence presented at trial, victim impact

statements, and Gross’s expression of remorse at the sentencing hearing. We do not find a “better than negligible”

chance that the result would have been different had

Gross testified before the jury, rather than the judge alone.

III. CONCLUSION

The decision of the Indiana Court of Appeals that Gross

did not suffer prejudice as required by Strickland was not

unreasonable in light of federal law or the facts in the

record. Gross has not demonstrated that he would have

testified at trial, nor has he convinced us that his testimony could have altered his sentence. The judgment of

the district court is AFFIRMED.

3-26-09