In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3461

Kevin Rittenhouse,

Petitioner-Appellant,

v.

John C. Battles, 

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 98 C 3286--Jeanne E. Scott, Judge.

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

 Before Flaum, Chief Judge, and Manion and

Kanne, Circuit Judges.

 Kanne, Circuit Judge. Kevin Rittenhouse

appeals the district court’s denial of

his petition for a writ of habeas corpus.

In addition to arguing that the district

court incorrectly denied his petition

with respect to the two claims in the

certificate of appealability, Rittenhouse

also asks us to amend the certificate to

include two other claims. For the reasons

stated below, we will not amend the

certificate of appealability granted by

the district court, and we deny

Rittenhouse’s petition for a writ of

habeas corpus.

I. History

 A jury found Kevin Rittenhouse guilty of

three counts of first degree murder,

three counts of aggravated criminal

sexual assault, three counts of criminal

sexual assault, one count of concealment

of a homicidal death, and one count of

obstruction of justice, in connection

with the rape and murder of Mal Chaplin.

The murder and sexual assault counts were

based on Rittenhouse’s criminal

responsibility for the acts of Shawn

Chaszar, who raped Chaplin, and Jeffery

Whitehead, who also raped and then

murdered Chaplin in an apartment in

Normal, Illinois. At Rittenhouse’s trial

the State provided evidence indicating
that Rittenhouse was in the apartment

while these crimes were being committed,

that he witnessed Whitehead and Chaszar

raping Chaplin, and that he took

affirmative steps to conceal Chaplin’s

rape and murder after the crimes were

committed. Rittenhouse was convicted by a

jury and subsequently sentenced to

consecutive terms of twenty years for one

count of first degree murder and six

years for each count of aggravated

criminal sexual assault, for a total of

thirty-eight years incarceration. 

 Rittenhouse appealed to the Illinois

Appellate Court challenging the validity

of his conviction and sentence. The

appellate court rejected his claims. See

People v. Rittenhouse, No. 4-93-1083,

slip. op. at 22 (Ill. App. Ct. Feb. 10,

1995). Rittenhouse then filed a petition

for leave to appeal to the Illinois

Supreme Court, raising the same claims

brought before the court of appeals. The

Illinois Supreme Court denied

Rittenhouse’s petition. See People v.

Rittenhouse, 657 N.E.2d 634 (Ill. 1995).

 Rittenhouse next initiated collateral

review proceedings by filing a postconviction petition in Illinois state

trial court, alleging that he was denied

the effective assistance of trial and

appellate counsel due to their failure to

raise certain issues regarding the

instructions given to the jury. He

subsequently filed a supplemental

petition as well. Both of these petitions

were denied. Rittenhouse appealed the

trial court’s ruling, asserting five

different claims. The Illinois Appellate

Court affirmed the denial of

Rittenhouse’s post-conviction petition.

See People v. Rittenhouse, No. 4-97-0503,

slip op. at 18 (Ill. App. Ct. March 17,

1998). Petitioner again filed a petition

for leave to appeal to the Illinois

Supreme Court, and that petition was

subsequently denied. See People v.

Rittenhouse, 699 N.E.2d 1036 (Ill. 1998).

 Rittenhouse then filed the present

petition for a writ of habeas corpus

pursuant to 28 U.S.C. sec. 2254 in the

United States District Court for the

Central District of Illinois. In his

petition, Rittenhouse claimed that: (1)

the trial court’s instructions on the

charges of murder and sexual assault

invaded the province of the jury and
denied Rittenhouse his due process rights

under the Fourteenth Amendment; (2) he

was denied effective assistance of

counsel when counsel failed to notice and

object to the improper instructions, and

failed to offer an alternative

instruction that did not contain a

presumption of legal responsibility; (3)

he was denied the right to effective

assistance of trial counsel by counsel’s

failure to adequately confer with him

regarding a plea bargain offer and by

failing to inform him that consecutive

sentences were mandatory or allowed; and

(4) the trial court’s refusal to instruct

the jury on Rittenhouse’s mere presence

theory of defense was a denial of his

fundamental right to due process and

equal protection.

 The district court denied Rittenhouse’s

petition for habeas corpus. In reaching

this decision, the court concluded that 

Rittenhouse’s challenge to the jury

instructions on the charges of murder and

sexual assault and his claim of

ineffective assistance of trial counsel

were procedurally defaulted. With regard

to his two remaining claims, the district

court found that the Illinois Appellate

Court’s analysis on these issues was

"neither an incorrect statement of

Supreme Court precedent nor an

unreasonable application of the law to

the facts." Rittenhouse v. O’Sullivan,

No. 98-3286, slip op. at 16 (C.D. Ill.

Aug. 22, 2000). Rittenhouse then filed a

petition for a certificate of

appealability, presenting two issues he

wished to raise on appeal to this court:

(1) that the trial court’s instructions

on the charges of murder and sexual

assault invaded the province of the jury

and denied Rittenhouse of his due process

rights under the Fourteenth Amendment;

and (2) that the trial court’s refusal to

instruct the jury on Rittenhouse’s mere

presence theory of defense was a denial

of his fundamental right of due process

and equal protection under the Fourteenth

Amendment. The district court granted

Rittenhouse’s petition for a certificate

of appealability on these issues. See

Rittenhouse v. O’Sullivan, No. 98-3286,

slip op. at 3 (C.D. Ill. Sept. 14, 2000).

II. Analysis 

A. Request for Amendment of the

Certificate of Appealability
 Rittenhouse raises two other claims that

are not included in the district court’s

certificate of appealability. He asks us

to consider his claims that: (1) he was

denied the effective assistance of trial

counsel when his attorney failed to

object to instructions that he contends

contained a mandatory presumption of

legal responsibility and (2) he was

deprived of the effective assistance of

appellate counsel when his counsel did

not raise an issue regarding the trial

court’s failure to instruct the jury on

his mere presence theory of defense. 

 In accordance with 28 U.S.C. sec.

2253(c), a habeas petitioner may appeal

only those issues for which a certificate

of appealability has been granted. See

Porter v. Gramley, 112 F.3d 1308, 1312

(7th Cir. 1997). Thus, the State asks

this court not to consider the two claims

included in Rittenhouse’s brief that were

not encompassed by the certificate of

appealability. This court has recently

explained, however, that "we shall

continue to consider requests to amend a

certificate of appealability even when

they are presented in a petitioner’s

briefs to this court." Ouska v. CahillMasching, 246 F.3d 1036, 1046 (7th Cir.

2001). A party can make such a request by

specifically asking us to consider the

issue in its brief or "by simply

including issues in its briefs that were

not specified in the certificate." Id. at

1045. In this case, Rittenhouse did both:

he included his additional claims in his

initial brief without requesting that we

amend the certificate, and in his reply

brief, he explicitly asked us to consider

these other issues. 

 In order to issue a certificate of

appealability "[w]here a district court

has rejected [a habeas petitioner’s]

constitutional claims on the merits, the

showing required to satisfy sec. 2253(c)

is straightforward: The petitioner must

demonstrate that reasonable jurists would

find the district court’s assessment of

the constitutional claims debatable or

wrong." Slack v. McDaniel, 529 U.S. 473,

484, 120 S. Ct. 1595, 146 L. Ed. 2d 542

(2000). In this case, the district court

rejected Rittenhouse’s claim that he was

denied effective assistance of trial

counsel when his attorney failed to

object to certain instructions that
allegedly contained a mandatory

presumption of legal responsibility.

Thus, Rittenhouse must now demonstrate

that reasonable jurists would find the

district court’s conclusion that he was

not denied the effective assistance of

trial counsel to be debatable or wrong.

He has made no such showing. 

 Rittenhouse’s first ineffective

assistance claim stems from a phrase that

was included in nine different

instructions submitted to the jury at

Rittenhouse’s trial to which his trial

counsel did not object: 

 To sustain the charge of criminal sexual

assault as charged in count IV involving

the penis of Jeffery Whitehead and vagina

of Mal Chaplin, the State must prove the

following propositions:

 First: That Whitehead, one for whose

conduct the defendant is legally

responsible, committed an act of sexual

penetration upon Mal Chaplin . . . . 

Rittenhouse asserts that the emphasized

language contains an improper presumption

of legal responsibility and that this

error is magnified by the fact that his

culpability for the sexual assault and

murder charges was based on a theory of

legal accountability for the actions of

Whitehead and Chaszar. Thus, Rittenhouse

claimed before the Illinois courts that

he was provided with ineffective

assistance of trial counsel when his

counsel failed to object to the inclusion

of the emphasized language in the jury

instructions. 

 In reviewing Rittenhouse’s habeas

petition, the district court evaluated

the Illinois Appellate Court’s decision

rejecting Rittenhouse’s claim of

ineffective assistance of counsel. See

Rittenhouse, No. 98-3286, slip op. at 5-

14. In so doing, the district court

reviewed the appellate court’s use of the

framework provided by the Supreme Court

in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), to review ineffective assistance

of counsel claims. The district court

likewise reviewed the appellate court’s

application of Strickland to the facts of

this case, as well as its ultimate

conclusion that the jury instructions:
taken as a whole, informed the jury of

its responsibility to determine, first,

whether defendant was accountable for the

conduct of his codefendants in sexually

assaulting the victim and, second, once

it found defendant accountable, to find

defendant guilty beyond a reasonable

doubt. These instructions did not direct

a verdict in favor of the State. Thus,

defense counsel cannot be deemed

ineffective for failing to object to the

State’s tendered instructions.

People v. Rittenhouse, No. 4-97-0503,

slip op. at 9 (Ill. App. Ct. March 17,

1998). The district court concluded that

"[t]he Appellate Court properly stated

the standard for ineffective assistance

of counsel set forth in . . .

Strickland," Rittenhouse v. O’Sullivan,

No. 98-3286, slip op. at 13 (C.D. Ill.

Sept. 14, 2000), and that the Illinois

court’s conclusions were not "an

unreasonable application of Supreme Court

precedent to the facts," id. at 14. We

agree with the district court’s analysis.

 Although we acknowledge that the

language Rittenhouse challenges might

have been worded more clearly, other por

tions of the instructions ensured that

the jury was informed that it could not

presume that Rittenhouse was legally

responsible for the actions of Whitehead

and Chaszar:

It is not necessary for the State to show

that it was or may have been the original

intent of the defendant or another for

whose conduct the defendant is legally

responsible to kill Mal Chaplin. The

State still must prove that the defendant

had the requisite intent to promote or

facilitate the commission of the

underlying offense of criminal sexual

assault in order to hold the defendant

legally responsible for first degree

murder, based upon the commission of

criminal sexual assault.

(emphasis added). Additionally, the

instructions reiterated to the jury that

it was the State’s burden to prove each

element of every charge beyond a

reasonable doubt, which included

Rittenhouse’s legal responsibility for

the actions of Chaszar and Whitehead.

Furthermore, Rittenhouse’s counsel, as

well as the State’s Attorney, emphasized

in closing argument that the question for
the jury was whether Rittenhouse could be

held legally responsible for the actions

of his co-defendants. Thus, we find that

the jury instructions Rittenhouse

challenges, taken as a whole, were not

improper, and that his counsel’s failure

to object to this language was not "so

serious that [he] was not functioning as

the ’counsel’ guaranteed the defendant by

the Sixth Amendment" or that Rittenhouse

was "prejudiced" by his counsel’s

performance. Strickland, 466 U.S. at 687.

Therefore, we find that the district

court’s assessment of the Illinois

Appellate Court’s determination that

Rittenhouse’s counsel did not provide

ineffective assistance of counsel in

failing to object to these instructions

is not an assessment that reasonable

jurists would find to be incorrect or

even debatable. Consequently, we will not

amend the district court’s certificate of

appealability to include this issue. 

 Rittenhouse also asks us to amend the

certificate of appealability to include

his claim that he was deprived of the

effective assistance of appellate counsel

when his attorney did not challenge the

trial court’s failure to instruct the

jury on his mere presence theory of

defense. The problem with this claim,

however, is that although Rittenhouse

presented it to the Illinois courts

during the course of his post-conviction

proceedings, he did not present it when

he filed his petition for a writ of

habeas corpus in the district court.

Thus, he has waived this claim on appeal.

See Drake v. Clark, 14 F.3d 351, 355 (7th

Cir. 1994) ("[T]he law is clear that any

claim not presented to the district court

is waived on appeal.") (internal

quotation omitted). Therefore, we decline

to amend the certificate of appealability

granted by the district court, and we

will now turn to the claims included in

that certificate.

B. Rittenhouse’s Certified Claims

 When reviewing an appeal from a district

court’s ruling on a petition for a writ

of habeas corpus, we review that court’s

factual findings for clear error and its

rulings on issues of law de novo. See

Ellsworth v. Levenhagen, 248 F.3d 634,

638 (7th Cir. 2001). Because

Rittenhouse’s habeas petition was filed

after the effective date of the
Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), we review his

claims pursuant to 28 U.S.C. sec. 2254 as

amended by that Act. See Lindh v. Murphy,

521 U.S. 320, 322-23, 117 S. Ct. 2059,

138 L. Ed. 2d 481 (1997); Ouska v.

Cahill-Masching, 246 F.3d 1036, 1044 (7th

Cir. 2001). Thus, we are permitted to

grant his petition for a writ of habeas

corpus only if the claims he now presents

were adjudicated by the Illinois courts

on the merits in such a manner that

"resulted in a decision that was contrary

to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the Supreme

Court of the United States." sec.

2254(d)(1).

 The Supreme Court has explained that a

state court decision is contrary to

clearly established precedent "if the

state court applies a rule that

contradicts the governing law set forth

in [the Court’s] cases" or "if the state

court confronts a set of facts that are

materially indistinguishable from a

decision of [the Court] and nevertheless

arrives at a result different from [the

Court’s] precedent." Williams v. Taylor,

529 U.S. 362, 405-06, 120 S. Ct. 1495,

146 L. Ed. 2d 389 (2000). The Court has

likewise explained that a state court

decision is an unreasonable application

of its precedent if "the state court

identifies the correct governing legal

principle from [the Court’s] decisions

but unreasonably applies that principle

to the facts of the prisoner’s case." Id.

at 413. While a federal court reviews de

novo whether a state court ruling was

"contrary to" clearly established law,

see Ouska, 246 F.3d at 1044, "under the

’unreasonable application’ clause, ’a

federal habeas court may not issue the

writ simply because that court concludes

in its independent judgment that the

relevant state-court decision applied

clearly established federal law

erroneously or incorrectly. Rather, that

application must also be unreasonable.’"

Morgan v. Krenke, 232 F.3d 562, 565-66

(7th Cir. 2000) (quoting Williams, 529

U.S. at 409). 

 Before reviewing the merits of

Rittenhouse’s claims, we must determine

whether he properly presented these

claims to the Illinois courts. If he

failed to "exhaust all available state
remedies or raise all claims before the

state courts, his petition must be denied

without considering its merits." Dressler

v. McCaughtry, 238 F.3d 908, 912 (7th

Cir. 2001). We have explained that the

"requirement that state courts have the

first opportunity to cure a claim of

continued confinement in an

unconstitutional fashion stems from the

understanding that state courts are

equally obliged to follow federal law and

from the desire for comity between state

and federal court systems." Spreitzer v.

Schomig, 219 F.3d 639, 645 (7th Cir.

2000). To satisfy this requirement, a

petitioner "must present both the

operative facts and the legal principles

that control each claim to the state

judiciary; otherwise, he will forfeit

federal review of the claim." Wilson v.

Briley, 243 F.3d 325, 327 (7th Cir.

2001). Additionally, our cases have

articulated four factors to consider in

determining whether a habeas petitioner

has fairly presented his claims in state

court:

(1) whether the petitioner relied on

federal cases that engage in

constitutional analysis; (2) whether the

petitioner relied on state cases which

apply a constitutional analysis to

similar facts; (3) whether the petitioner

framed the claim in terms so particular

as to call to mind a specific

constitutional right; and (4) whether the

petitioner alleged a pattern of facts

that is well within the mainstream of

constitutional litigation.

Id. at 327. In applying these factors,

"[t]he bottom line is that the task of

the habeas court in adjudicating any

issue of fair presentment is assessing,

in concrete, practical terms, whether the

state court was sufficiently alerted to

the federal constitutional nature of the

issue to permit it to resolve that issue

on a federal basis." Ellsworth v.

Levenhagen, 248 F.3d 634, 639 (7th Cir.

2001) (quotations omitted). 

 The district court concluded that

Rittenhouse’s claim that the trial

court’s instructions denied him of his

Fourteenth Amendment due process rights

was procedurally defaulted because

Rittenhouse did not fairly present this

claim to the Illinois courts. See

Rittenhouse v. O’Sullivan, No. 98-3286,
slip op. at 14-15 (C.D. Ill. Aug. 22,

2000). Rittenhouse’s briefs to the

Illinois courts only discussed the

problems with the challenged instructions

within the context of his argument that

he was denied the effective assistance of

trial counsel for his attorney’s failure

to object to these instructions.

Additionally, Rittenhouse’s brief to the

Illinois Appellate Court did not refer to

a single federal or state case addressing

a criminal defendant’s federal due

process rights. In fact, the only

reference to due process in Rittenhouse’s

ten page argument alleging ineffective

assistance of counsel appears in the very

last sentence, where he asserts that the

trial court’s "instructional errors"

denied him of his right to due process. 

 A close review reveals, however, that

although Rittenhouse’s only discussion of

the jury instructions was within the

context of his ineffective assistance of

counsel claim, he did in fact present the

Illinois Appellate Court with a very

substantial analysis of alleged problems

with the jury instructions. Additionally,

his argument that the instructions

created a mandatory presumption of legal

responsibility clearly implicates the Due

Process Clause as explained by the

Supreme Court in Sandstrom v. Montana,

442 U.S. 510, 521, 99 S. Ct. 2450, 61 L.

Ed. 2d 39 (1979) (finding that a

presumption in a jury instruction that

relieves the government of its burden to

prove each element of a crime violates

the Due Process Clause). Likewise,

although the appellate court did not say

this outright, its analysis concluding

that the instructions did not create an

improper presumption squarely addresses

and rejects Rittenhouse’s argument that

is essentially a due process argument.

Thus, although it is a close call, we

will err on the side of evaluating the

merits of Rittenhouse’s claim. 

 As we explained in Part II.A., however,

these instructions, taken as a whole, did

not create a presumption that Rittenhouse

was legally responsible for the actions

of Whitehead and Chaszar. Thus, the

instructions did not relieve the State of

its burden to prove Rittenhouse’s

culpability for each of the crimes with

which he was charged. Therefore, we

conclude that the Illinois Appellate

Court’s conclusion that these
instructions were proper was not an

"unreasonable application of" clearly

established Supreme Court precedent.

Consequently, we will deny Rittenhouse’s

petition on this claim. 

 With regard to Rittenhouse’s second

claim--that the trial court’s refusal to

instruct the jury on his mere presence

theory of defense was a denial of his

fundamental right to due process and

equal protection under the Fourteenth

Amendment--the district court dismissed

it on the merits, finding that the

Illinois Appellate Court’s decision

rejecting Rittenhouse’s claim was

"neither an incorrect statement of

Supreme Court precedent nor an

unreasonable application of the law to

the facts." Rittenhouse v. O’Sullivan,

No. 98-3286, slip op. at 16 (C.D. Ill.

August 22, 2000). The court reached the

merits notwithstanding the appellant’s

assertion that Rittenhouse’s claim was

procedurally defaulted pursuant to the

Supreme Court’s decision in O’Sullivan v.

Boerckel, 526 U.S. 838, 119 S. Ct. 1728,

144 L. Ed. 2d 1 (1999), because he failed

to include this claim in the petition for

leave to appeal that he filed with the

Illinois Supreme Court. In rejecting the

respondent’s argument, the district court

explained that, because Rittenhouse filed

his petition when the decisions of this

court "held that he did not default

issues if he left them out of this

petition for leave to appeal," it would

not "default Rittenhouse for following

the then existing procedural law of the

[Seventh] Circuit." Rittenhouse, No. 98-

3286, slip op. at 15-16. We cannot agree.

 In Boerckel, the Supreme Court ruled

that several of the claims raised in the

defendant’s federal habeas petition were

procedurally defaulted because he had not

properly presented those claims to the

Illinois courts. 526 U.S. at 848.

Although he had presented the claims to

the Illinois Appellate Court, Boerckel

did not include them in his petition for

leave to appeal to the Illinois Supreme

Court, and, therefore, he had not

satisfied the federal exhaustion

requirement. See id. While Boerckel’s

case involved a matter on direct appeal,

we have since held that "[t]he procedural

default rule announced in Boerckel

applies with equal force in a case . . .

on collateral review." White v. Godinez,
192 F.3d 607, 608 (7th Cir. 1999).

Additionally, consistent with the Supreme

Court’s retroactive application of its

holding in Boerckel, we have procedurally

defaulted a habeas petitioner’s claims

where he sought relief through the state

court system prior to the Boerckel

decision and failed to present certain

claims in his petition for leave to

appeal to the Illinois Supreme Court. See

Rodriguez v. Scillia, 193 F.3d 913, 917

(7th Cir. 1999). Therefore, we must

disagree with the district court’s

determination that the Boerckel decision

does not affect Rittenhouse’s petition

and instead conclude that this claim has

been procedurally defaulted because

Rittenhouse did not include it in his

petition for leave to appeal to the

Illinois Supreme Court.

 Because we find this claim to be

procedurally defaulted, we may grant

Rittenhouse’s petition for habeas relief

on this claim only if he is able to

"’demonstrate cause for the default and

actual prejudice as a result of the

alleged violation of federal law, or

demonstrate that failure to consider the

claim[ ] will result in a fundamental

miscarriage of justice.’" Anderson v.

Cowan, 227 F.3d 893, 899-900 (7th Cir.

2000) (quoting Coleman v. Thompson, 501

U.S. 722, 750, 111 S. Ct. 2546, 115 L.

Ed. 2d 640 (1991)). Rittenhouse has made

no attempt to offer such a demonstration,

other than his attorney’s comment at oral

argument that if this court were to find

that both of his claims were procedurally

defaulted, and therefore declined to

review them on the merits, the errors

alleged in these claims, taken together,

would result in a fundamental miscarriage

of justice. We do not accept this

argument. We have already denied

Rittenhouse’s first claim on the merits,

and we find no aspect of the trial

court’s decision to refuse to instruct

the jury on his mere presence theory of

defense that requires us to review this

claim on the merits in order to avoid a

miscarriage of justice. Therefore, we

will deny his petition for a writ of

habeas corpus on this claim.

III. Conclusion

 For the foregoing reasons we AFFIRM the

district court’s denial of Rittenhouse’s

petition for a writ of habeas corpus.