In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2314

Jamaljah Aliwoli,

Petitioner-Appellant,

v.

Lamark Carter, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 2283--Suzanne B. Conlon, Judge.

Argued June 9, 2000--Decided August 29, 2000

 Before Bauer, Posner, and Rovner, Circuit Judges.

 Bauer, Circuit Judge. After being stopped for a

routine traffic violation, Jamaljah Aliwoli

pulled a gun from his jacket and shot three

Chicago police officers. Fortunately, all three

police officers survived the shooting. At

Aliwoli’s trial on three counts of attempted

first degree murder, Aliwoli claimed that he was

not guilty by reason of insanity. To substantiate

his insanity defense, Aliwoli presented three

expert witnesses who testified that Aliwoli

suffered from a persecutorial delusional disorder

that caused him to believe that police officers

were members of a conspiracy to harass him. The

experts testified that, because of his delusional

disorder, Aliwoli was unable to conform his

conduct to the requirements of law when he shot

the police officers.

 The jury rejected Aliwoli’s insanity defense and

found him guilty but mentally ill. The trial

judge sentenced Aliwoli to prison terms of 60

years, 30 years, and 30 years on the three

convictions, with each sentence to run

consecutively. Aliwoli appealed to the Illinois

Appellate Court and that court affirmed his

convictions and sentences. See People v. Aliwoli,

606 N.E.2d 347 (Ill. App. Ct. 1992). Aliwoli then

sought leave to appeal to the Illinois Supreme

Court, but that request was denied. See People v.

Aliwoli, 610 N.E.2d 1267 (Ill. 1993). Aliwoli
never petitioned for post-conviction relief in

the Illinois courts.

 Having exhausted his state court options,

Aliwoli filed a petition for a writ of habeas

corpus under 28 U.S.C. sec. 2254 and the district

court denied that petition. See United States ex

rel. Aliwoli v. Peters, No. 96 C 2283, 1996 WL

666692 (N.D. Ill. Nov. 14, 1996). Aliwoli

appealed the ruling to this court, arguing that

the district court’s decision should be reversed

because the district judge had erroneously

applied the standards of sec. 2254 as amended by

the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), Pub. L. 104-132. We agreed

with Aliwoli’s argument and held that, since

Aliwoli filed his petition before the effective

date of the AEDPA, the district court should have

considered his claims under the pre-AEDPA

standards. See Aliwoli v. Gilmore, 127 F.3d 632,

633 (7th Cir. 1997). We remanded the case to the

district court to consider Aliwoli’s petition

under the pre-AEDPA standards. We did, however,

affirm the district court’s determination that

Aliwoli procedurally defaulted his claim that the

prosecutor made improper remarks during rebuttal

argument.

 On remand, the district court issued a minute

order denying Aliwoli’s petition for a writ of

habeas corpus. Applying the pre-AEDPA standards,

the district judge found no constitutional error

in his trial. Aliwoli now challenges the district

court’s ruling under the pre-AEDPA standards.

 Under the habeas statute in effect before the

AEDPA, a federal court exercising habeas corpus

jurisdiction could grant relief to a petitioner

in custody pursuant to the judgment of a state

court only if his custody violated federal

statutory or constitutional law. Milone v. Camp,

22 F.3d 693, 698 (7th Cir. 1994); Escobar v.

O’Leary, 943 F.2d 711, 720 (7th Cir. 1991). We

review the district court’s conclusions of law de

novo, Quinn v. Neal, 998 F.2d 526, 528 (7th Cir.

1993), and presume the facts as found by the

state courts to be correct. Brewer v. Aiken, 935

F.2d 850, 855 (7th Cir. 1991).

 Aliwoli first contends that he was deprived of

a fair trial when, during closing argument, the

prosecutor said "what they are trying to do

ladies and gentlemen is flimflam you so that he

can go laughing out that door of this

courtroom."/1 According to Aliwoli, this

statement was improper because the prosecutor was

implicitly arguing that a verdict of not guilty

by reason of insanity would result in Aliwoli’s

total release from custody. Aliwoli asserts that

the prosecutor’s remark unfairly prevented the

jury from finding him not guilty by reason of
insanity and therefore deprived him of due

process. 

 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). When assessing

whether a prosecutor’s statement deprived a

defendant of a fair trial, we look to five

factors: (1) the nature and seriousness of the

prosecutorial misconduct; (2) whether the

prosecutor’s statement was invited by the conduct

of defense counsel; (3) whether the trial court’s

instructions to the jury were adequate; (4)

whether the defense was able to counter the

improper arguments through rebuttal; and (5) the

weight of the evidence against the defendant.

United States v. Butler, 71 F.3d 243, 254 (1995).

 When viewed in isolation, the prosecutor’s

remark was inappropriate. The prosecutor

suggested that a not guilty by reason of insanity

verdict would allow Aliwoli to "go laughing out

that door of this courtroom." We have previously

held that "the practice of informing juries about

the sentencing consequences of their verdicts is

strongly disfavored." United States v. Lewis, 110

F.3d 417, 422 (7th Cir. 1997). As the Supreme

Court explained in Shannon v. United States, 512

U.S. 573, 579 (1994), courts should withhold

information about punishment from the jury

because the jury’s role is typically restricted

to deciding whether the defendant is guilty of

the crime charged. Id. Since the jury only

determines whether the defendant is guilty or not

guilty, "providing jurors sentencing information

invites them to ponder matters that are not

within their province, distracts them from their

factfinding responsibilities, and creates a

strong possibility of confusion." Id.; see also

Evalt v. United States, 359 F.2d 534, 545-46 (9th

Cir. 1966). Here, the prosecutor’s comment was

inappropriate because it raised the issue of the

punishment (or lack thereof) that Aliwoli would

receive by suggesting that Aliwoli would "go

laughing out that door" if the jury found him not

guilty by reason of insanity.

 Even though we agree that the prosecutor’s

remark was inappropriate, we must still determine

whether the comment caused sufficient prejudice
so as to deprive Aliwoli of due process. Applying

the relevant factors, we cannot say that Aliwoli

was deprived of a fair trial. The statement was

improper but not "highly inflammatory." See

Cunningham, 54 F.3d at 301. Moreover, the trial

judge firmly and correctly instructed the jury

that "you are not to concern yourselves with

possible punishment or sentence for the offense

charged during your deliberations." The trial

judge also advised the jury that "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." 

 And, importantly, Aliwoli’s attorney had an

opportunity to refute the prosecutor’s suggestion

that a not guilty by reason of insanity verdict

would allow Aliwoli to go free. Specifically,

Aliwoli’s attorney argued to the jury, "don’t be

misled by anyone telling you that he will walk

out of that door if you find him not guilty by

reason of insanity. That is not true." Aliwoli’s

attorney also told the jury that "these police

officers as they sit right before you won’t be in

danger of this man ever again." 

 Finally, the weight of the evidence against

Aliwoli was very convincing. Aliwoli admitted

shooting the three police officers, but raised

his mental state as a defense to the crime.

Aliwoli had experts testify in support of his

defense; however, there were several facts in the

record indicating that Aliwoli acted calmly and

deliberately. The jury could have reasonably

inferred from these facts that Aliwoli was not

insane when he committed this crime. Viewing

Aliwoli’s trial as a whole, and considering the

relevant factors, we hold that the prosecutor’s

comments did not deprive Aliwoli of a fair trial.

The district court correctly ruled that there was

no constitutional violation when it rejected this

argument. See Cunningham, 54 F.3d at 300-01;

United States v. Greiser, 502 F.2d 1295, 1297-98

(9th Cir. 1974); United States v. Tankersley, 492

F.2d 962, 968 (7th Cir. 1974).

 Aliwoli next claims that he was denied due

process during his trial because the prosecutor

questioned witnesses about his religious beliefs

as a black Muslim. The prosecution apparently

sought to establish that Aliwoli’s membership in

the black Muslim faith gave him a motive to shoot

the three police officers. For example, the State

cross-examined two of Aliwoli’s expert witnesses

by asking whether Aliwoli’s black Muslim faith

encompassed an anti-authority stance. The

prosecutor also asked whether black Muslims have

a negative view of the police and inquired about

a black Muslim newspaper during the late 1960’s
and early 1970’s that referred to police officers

as "pigs" and white people as "white devils." The

prosecutor queried whether one expert was

familiar with a 1984 article in American

Psychologist Publication that suggested that many

African-Americans consider white people as

potential enemies. Finally, the prosecutor also

asked one expert about a statement in her psychosocial history of Aliwoli where she wrote,

"although a Muslim, he did not seem to be

excessively hostile towards whites." Aliwoli

insists that these references to his race and

religion deprived him of a fair trial.

 "There is no place in a criminal prosecution

for gratuitous references to race . . .

Elementary concepts of equal protection and due

process alike forbid a prosecutor to seek to

procure a verdict on the basis of racial

animosity." Smith v. Farley, 59 F.3d 659, 663

(7th Cir. 1995). The Constitution "prohibits a

prosecutor from making race-conscious arguments

since it draws the jury’s attention to a

characteristic that the Constitution generally

demands that the jury ignore." United States v.

Hernandez, 865 F.2d 925, 928 (7th Cir. 1989).

Like any charge of prosecutorial misconduct, we

first view the statements to determine whether

they were improper. If they were inappropriate,

we view the record as a whole and consider

whether they deprived the defendant of a fair

trial. Id. at 927.

 We find no constitutional error in the

prosecutor’s questions. As a general rule, a

racial remark is improper if it is "intentionally

injected into volatile proceedings where the

prosecutor had targeted the defendant’s ethnic

origin for emphasis in an attempt to appeal to

the jury’s prejudices." Hernandez, 865 F.2d at

928. It is apparent from the context of the

prosecutor’s questions that the references to

Aliwoli’s membership in the black Muslim faith

were only meant to show that Aliwoli had a motive

for shooting the police officers. In other words,

the questions were clearly intended to rebut

Aliwoli’s insanity defense. Because the questions

about Aliwoli’s beliefs as a black Muslim focused

solely on his state of mind and potential motive

for the shootings, they were not improper.

Although the questions mentioned Aliwoli’s race

and religion, none of them can be reasonably

viewed as attempting to arouse jury prejudice

towards blacks or Muslims. In short, there is no

evidence that these comments were intended to

play upon the prejudices of the jury. See

Hernandez, 865 F.2d at 928.

 In any event, looking at the record as a whole,

the questions could not have impacted the outcome
of Aliwoli’s trial. First and foremost, every

witness the prosecutor asked about whether

Aliwoli’s black Muslim faith could have motivated

the shootings denied that Aliwoli’s religion

played any role in the crime. Rather, each

witness characterized black Muslims as peaceful

and law-abiding citizens. The expert witnesses

consistently attributed Aliwoli’s actions to his

persecutorial delusional disorder and

emphatically denied that he shot the police

officers because of any religious belief. Having

obtained no testimony to substantiate its theory

that Aliwoli’s motive was based on zealous

religious beliefs rather than his delusions, the

prosecution never mentioned Aliwoli’s race or

religion during closing arguments. And, as we

previously noted, the State presented highly

persuasive evidence showing that Aliwoli was

aware of his actions when he shot the police

officers. Finally, we note that the trial court

properly instructed the jury to disregard

Aliwoli’s race and religion when reaching its

verdict. The prosecutor’s questions did not

deprive Aliwoli of a fair trial./2

 The district court is affirmed.

/1 Aliwoli also complains about another statement

that the prosecutor made during rebuttal

argument. We will not consider this statement

because it is the same argument that we

previously found procedurally defaulted. See

Aliwoli, 127 F.3d at 634.

/2 Aliwoli also argues that he was deprived of a

fair trial because the prosecutor attacked his

credibility during closing arguments. We find no

error here; there was ample evidence for the jury

to reasonably conclude that Aliwoli did not tell

the truth.

 ROVNER, Circuit Judge, concurring in part and

dissenting in part. Like my colleagues, I do not

believe that the questions centering on Aliwoli’s

race and religion deprived him, in the end, of a

fair trial. The questions themselves are

troublesome. Certainly, the State was entitled to

explore plausible explanations for this crime

other than insanity. Yet, there is nothing in the

circumstances of the offense, or elsewhere in the

record, that suggests Aliwoli’s race or religion

actually might have played a role in his attack

upon the three police officers. The closest thing

to it is a statement by family members, recounted

in a report of Aliwoli’s psycho-social history,

that "although a Muslim, he did not seem to be

excessively hostile towards whites." R. 506. This

is a slender reed, if it is any support at all,
for a series of questions aimed at establishing

that Aliwoli, as a Black Muslim, might have

distrusted the police and viewed Caucasians as

"white devils." E.g., R. 587-88. The literature

that the prosecutor also cited as a basis for

these inquiries (e.g., R. 586, 712) offers no

more justification. In a society that is highly

conscious of racial and religious differences, it

comes as no surprise that there may be tension

among peoples whose skin colors and houses of

worship differ; and many, if not most, races and

religions can lay unhappy claim to members who

promote distrust of, and even violence against,

persons of other races and religions. But to

ascribe to a defendant a motive to kill simply

because he is a Black Muslim and because other

African-Americans, or other Muslims, have

expressed distrust (or worse) of different races

and religions, is to engage in wholly

inappropriate stereotyping. I think that the

questions posed in this case may, in some

instances, have come close to such stereotyping,

rather than focusing on what the defendant

himself believed. Nonetheless, like my

colleagues, I conclude that because the witnesses

uniformly rejected the notion that Aliwoli’s race

or religion may have supplied him with a motive

to harm the police officers, and because the

State refrained from pursuing this theory in its

closing arguments, Aliwoli was not deprived of

his constitutional right to a fair trial.

 What did deprive him of that right, in my view,

was the prosecutor’s assertion, in closing

argument, that the defense was attempting to

"flimflam" the jury by asserting that Aliwoli was

insane "so that he can go laughing out the door

of this courtroom." R. 587. The message that the

prosecutor intended to convey is unmistakable:

"Find him not guilty by reason of insanity and he

will go free." The remarks were not only improper

in the sense that they invited the jury to

consider the sentencing consequences of its

verdict, see Shannon v. United States, 512 U.S.

573, 579, 114 S. Ct. 2419, 2424 (1994), but also

in the sense that they suggested, inaccurately,

that an insanity finding would necessarily set

Aliwoli free, see Ill. Rev. Stat. ch. 38 para.

1005-2-4 (1987), now codified at 730 ILCS 5/5-2-

4. Only the trial judge could have corrected the

misimpression that the prosecutor planted in the

jurors’ minds, but he declined to give a

proffered instruction that would have explained

to the jury the true consequences of a not guilty

by reason of insanity verdict. See Shannon, 512

U.S. at 587-88, 114 S. Ct. at 2428 (noting that

such an appropriate corrective instruction may be

required when the prosecution suggests that the

defendant will "go free"). True, the defense had

the opportunity to argue in its own closing that
an insanity verdict would not set Aliwoli free,

but why would the jury have believed his

attorney? The fact that the trial judge overruled

the objection to the prosecutor’s remarks, and

allowed the State to sound the same refrain in

rebuttal, see R. 890, 892,/1 if anything imbued

this line of argument with credibility. The

assertions that the defense was engaged in

trickery and deceit, e.g., R. 857, 888--again,

objected to but nonetheless allowed-- would only

have reinforced the notion that the defense would

achieve total victory (i.e. freedom for Aliwoli)

in an insanity finding, although I agree with my

colleagues that the assertions of trickery do not

support relief in and of themselves. The standard

instructions indicating that it was the judge’s

responsibility to deal with the question of

punishment, and that the attorneys’ arguments

were not evidence, did absolutely nothing to

clear up the problem. As my colleagues point out,

there was indeed evidence that Aliwoli acted in

an apparently sane manner (ante at 5). Yet, there

was also considerable evidence that he was

mentally disturbed, and the jury’s determination

that he was mentally ill confirms the weight of

that evidence. Given that the prosecutor’s

misleading arguments as to the consequence of an

insanity verdict were never corrected, and that

the jury opted for a middle-ground finding that

he was guilty but mentally ill, I cannot say with

any confidence that the error in this case was

harmless. In that respect, then, I respectfully

dissent.

/1 I recognize that Aliwoli has procedurally

defaulted any claim based on the remarks made in

rebuttal, see Aliwoli v. Gilmore, 127 F.3d 632,

634 (7th Cir. 1997), but these remarks nonetheless

bear on the prejudicial impact of the remarks

made in the prosecution’s initial closing

argument.