1 Pursuant to FEDERAL RULE OF APPELLATE PROCEDURE 43(c)(2),

Deidre Battaglia has been substituted for the original respondent,

Kenneth R. Briley.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1715

JONATHAN BARTLETT,

Petitioner-Appellant,

v.

DEIDRE BATTAGLIA, Warden,1

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 4204—Matthew F. Kennelly, Judge.

____________

ARGUED APRIL 11, 2006—DECIDED JUNE 21, 2006

____________

Before FLAUM, Chief Judge, andBAUER andSYKES,Circuit

Judges.

FLAUM, Chief Judge. On July 19, 2000, following a trial

in the Cook County Circuit Court of Illinois, a jury found

Jonathan Bartlett guilty of first-degree murder, attempted

first-degree murder, and aggravated discharge of a firearm.

After exhausting his appeals in the Illinois State Court

system, Bartlett filed a petition for a writ of habeas corpus

in the Northern District of Illinois. The district court denied
2 No. 05-1715

2 The reversal had no impact on Bartlett’s total sentence, nor the

substance of this appeal.

Bartlett’s petition, but granted a Certificate of Appealability.

For the following reasons, we now affirm the judgment of

the district court.

I. Background

For the crimes of first-degree murder, attempted firstdegree murder, and aggravated discharge of a firearm, the

State of Illinois, Cook County Circuit Court, sentenced

Jonathan Bartlett to a term of forty years’ imprisonment.

Bartlett appealed, claiming, inter alia, that the prosecutor’s

closing argument improperly quantified the burden of proof

and violated his rights to due process and a fair trial. The

Appellate Court of Illinois, First Judicial Circuit, reversed

Bartlett’s conviction for aggravated discharge of a firearm,

but affirmed his remaining convictions and total sentence.2

The Supreme Court of Illinois denied Bartlett’s petition for

appeal.

After exhausting state remedies, Bartlett filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254(d). The district court denied the petition for a writ of

habeas corpus, but issued a Certificate of Appealability

“with regard to petitioner’s claim that the prosecutor’s

argument regarding the burden of proof improperly quantified the burden of proof and violated petitioner’s rights to

due process and a fair trial.”

Bartlett’s appeal concerns statements made by the

prosecution during the rebuttal portion of its closing

argument. These comments were quoted by the Illinois

Appellate Court and are contained in the record before this

Court:
No. 05-1715 3

Mr. Shlifka [Assistant State’s Attorney]: . . . Mr.

Sheppard [Defendant’s counsel] has spent a lot of time

telling you about how Johnathan [sic] Bartlett is

cloaked with the presumption of innocence, and he

referred to the weighty burden and the heavy burden

and all these nice little stories and—

Mr. Sheppard: Objection, your Honor.

The Court: Overruled.

Mr. Shlifka: Brick walls. Brick walls. Well, let me

explain something to you, folks. The burden we have is

beyond a reasonable doubt. Not beyond any doubt, not

beyond a shadow of a doubt, not beyond all doubt, but

beyond a reasonable doubt. And it’s not like a brick

wall.

Mr. Sheppard: Objection, your Honor.

The Court: Overruled.

Mr. Shlifka: It’s not like a brick wall at all where

you have to remove every single brick. Think of it

more like a puzzle. Think the Eiffel Tower. You’re

putting those pieces in. You want to get thirty percent

(30%) done. Well, it kind of looks likes a tower to me.

Let’s say you get all the pieces in except ten, twenty,

thirty. You’re looking at it. My gosh, that’s the Eiffel

tower. Do you have a doubt, a reasonable doubt? And

there’s still pieces missing. Beyond a reasonable doubt is

the standard. That cloak that Mr. Bartlett walked into

this courtroom with through our evidence has been

thrown in the garbage.

(Emphasis added).

The prosecution was not alone, however, in their attempts

to describe reasonable doubt. Presumably, the prosecution’s

“brick wall” commentary was a response to the defendant’s

closing argument, in which, the defense defined the “pre-
4 No. 05-1715

sumption of innocence” as a “brick mortar wall,” which the

State must remove “every brick” of.

In its opinion, the Illinois Appellate Court admonished

trial counsel and judges that they should avoid attempting

to explain the standard of proof in criminal cases. People v.

Bartlett, No. 1-00-3404, slip op. at 29 (Ill. App. Ct. 1st Dist.

Sep. 24, 2002) (citing People v. Keene, 660 N.E.2d 901 (Ill.

1995)). In this case, however, the court found:

a close reading of the State’s comments . . . does not

indicate that the State improperly attempted to compare the “beyond a reasonable doubt standard” to a 30%

completed puzzle. Although the State initially mentioned “30%,” it did not directly equate that percentage

with its burden of proof. The State, in fact, subsequently equated its burden of proof to a nearly completed puzzle that was only missing a few pieces when

directly referring to the “beyond a reasonable doubt”

standard. While we agree that the State’s analogy, by

making the reference to “30%,” appears at first glance

to be confusing and improper, a reading of the State’s

entire argument in context here does not support

defendant’s argument that he was prejudiced by the

State’s comments, thereby depriving him of a fair trial.

Id. at 31-32.

The district court evaluated Bartlett’s habeas petition

under the standards set forth in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C.

§ 2254(d)(1) (“An application for a writ of habeas corpus

on behalf of a person in custody pursuant to the judgment

of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim—resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as
No. 05-1715 5

determined by the Supreme Court of the United States[.]”

(emphasis added)).

Given the constraints of AEDPA, the district court found

that it “may not . . . consider the matter de novo. . . . Under

the law as it now stands, the Court is constrained to

conclude that the [Illinois] Appellate Court did not unreasonably apply federal law.” The district court went on to

state that if it were “free to make an independent decision

[it] would conclude that the prosecutor’s comments were

sufficiently prejudicial to warrant vacating Bartlett’s

conviction,” but that “[t]he [Illinois] Appellate Court’s

assessment of the impact of the prosecutor’s comments on

the trial as a whole involved an issue as to which reasonable minds could differ.”

Bartlett now appeals the decision of the district court,

arguing that the Illinois Appellate Court’s conclusion that

Bartlett received a fair trial, despite the prosecutor’s

improper statement, is “contrary to, or involved an unreasonable application of” Supreme Court precedent. Bartlett

specifically cites the cases of In re Winship, 397 U.S. 358

(1970); Cage v. Louisiana, 498 U.S. 39 (1990); Sullivan v.

Louisiana, 508 U.S. 275 (1993); and Darden v. Wainwright,

477 U.S. 168 (1986).

II. Discussion

We review a district court’s denial of a habeas petition

de novo and the district court’s findings of fact for clear

error. Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir.

2005).

Under the Anti-Terrorism and Effective Death Penalty

Act (AEDPA), 28 U.S.C. § 2254(d), a federal court will

not grant a writ of habeas corpus to a state prisoner

with respect to any claim adjudicated on the merits

in state court unless the state decision was (1) “contrary
6 No. 05-1715

3 Although the Illinois Appellate Court did not cite Darden,

(continued...)

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States” or (2) 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) (2003). See also Williams v.

Taylor, 529 U.S. 362, 402-03 (2000).

Id.

When reviewing a state-court decision, this Court may

only issue a writ of habeas corpus if “the state court’s

application of governing federal law is . . . shown to be not

only erroneous, but objectively unreasonable.” Yarborough

v. Gentry, 540 U.S. 1, 5 (2003) (citations omitted). Although

“federal courts, even on habeas, have an independent

obligation to say what the law is,” Williams v. Taylor, 529

U.S. 362, 384 (2000) (quoting Wright v. West, 505 U.S. 277,

305 (1992) (O’Connor, J., concurring)), “habeas relief should

not be granted if the state court decision can be said to be

one of several equally-plausible outcomes.” Jackson v.

Frank, 348 F.3d 658, 662 (7th Cir. 2003) (citing Boss v.

Pierce, 263 F.3d 734, 742 (7th Cir. 2001)).

The requirement that a habeas court find that the

state court’s decision “unreasonably applied clearly established federal law” is a “difficult standard to meet; ‘unreasonable’ means ‘something like lying well outside the boundaries of permissible differences of opinion.’ ” Id. (quoting

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).

The Illinois Appellate Court limited its analysis of the

prosecutor’s comments to whether they constituted prosecutorial misconduct under the standards established in

Darden v. Wainwright, 477 U.S. 168 (1986).3 Darden
No. 05-1715 7

3 (...continued)

we agree with the district court’s assessment that the state court’s

review utilized the standards established in Darden.

4 The Supreme Court subsequently abandoned the “reasonable

juror” standard. Boyde v. California, 494 U.S. 370 (1990). Boyde

established that the proper standard for evaluating a jury

instruction is whether a “reasonable likelihood” exists that the

jurors in a particular case misunderstood their duty because of an

erroneous instruction. See Estelle v. McGuire, 502 U.S. 62, 72 n.4

(1991) (citing Boyde, 494 U.S. at 379-80).

established a framework to evaluate “whether the prosecutors’ comments ‘so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’ ” 477

U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974)). The Darden test has two prongs. First, the

court evaluates whether the prosecution’s statements were

improper. Second, if the comments were improper, the court

asks whether the defendant was prejudiced by them.

Ruvalcaba v. Chandler, 416 F.3d 555, 565 (7th Cir. 2005).

Bartlett argues that, “[g]iven the importance the Supreme

Court has placed on reasonable doubt, [In re Winship, 397

U.S. 358 (1970)],” the more stringent structural defect

analysis “regarding the quantification of reasonable doubt”

should be applied in this case. See Cage v. Louisiana, 498

U.S. 39 (1990) (reversal of conviction is appropriate where

a reasonable juror could have interpreted the judge’s

instruction to allow a finding of guilt based on a lesser

degree of proof than guilt beyond a reasonable doubt);4

Sullivan v. Louisiana, 508 U.S. 275 (1993) (constitutionally

deficient reasonable doubt instruction requires reversal of

conviction).

Bartlett is correct in emphasizing the importance of the

proof beyond a reasonable doubt standard. The government’s burden to prove an alleged criminal’s guilt beyond a

reasonable doubt is a “notion—basic in our law and rightly
8 No. 05-1715

one of the boasts of a free society—[that] is a requirement

and a safeguard of due process of law in the historic,

procedural content of ‘due process.’ ” Winship, 397 U.S. at

362 (quoting Leland v. Oregon, 343 U.S. 790, 802-03 (1952)).

The question for this Court is whether the prosecutor’s

comments during closing argument were so egregious that

they deprived Bartlett of his due process right to be convicted only by proof beyond a reasonable doubt.

In Cage, the Supreme Court evaluated a reasonable doubt

instruction given by the judge to the jury. The Supreme

Court found that “a reasonable juror” may have understood

the jury instruction “to allow a finding of guilt based on a

degree of proof below that required by the Due Process

Clause.” Cage, 498 U.S. at 41. Even were this case to

concern jury instructions rather than prosecutorial statements, Bartlett advances an incorrect statement of the law

by relying upon Cage. Today, “a jury instruction is unconstitutional if there is a reasonable likelihood that the jury

understood the instruction to allow conviction without proof

beyond a reasonable doubt.” Tyler v. Cain, 533 U.S. 656,

658 (2001) (emphasis added).

In Sullivan, the Supreme Court found that an erroneous

jury instruction concerning the guilt beyond a reasonable

doubt standard is not subject to a harmless-error analysis.

508 U.S. at 281-82. Where there is a reasonable likelihood

that a jury does not believe that it must find proof beyond

a reasonable doubt to find the defendant guilty, the erroneous instruction is a “structural error” that may not be cured

through a harmless error analysis. Id.

The instant case concerns a prosecutor’s argument, not an

erroneous jury instruction. Despite the essential differences

between a statement from the bench and a statement from

the prosecution, the petitioner asks this Court to find that

the facts in this case are “materially indistinguishable” from
No. 05-1715 9

5 As stated above, Sullivan and Cage no longer represent the

appropriate test for jury instructions. See Estelle, 502 U.S. at 72

n.4 (citing Boyde, 494 U.S. at 379-80).

the facts of Sullivan and Cage.

5

Thus, Bartlett asks this Court to extend the holdings of

previous cases to apply to the facts of his case. While this

reasoning is typically acceptable, in a habeas proceeding

our review is restricted to ensuring that the state courts

reasonably apply “clearly established Federal law.” 28

U.S.C. § 2254(d); see also Dixon v. Snyder, 266 F.3d 693,

700 (7th Cir. 2001) (“An ‘unreasonable application’ of

Supreme Court precedent occurs when ‘the state court

identifies the correct governing legal rule . . . but unreasonably applies it to the facts of the particular state prisoner’s

case’ or ‘if the state court either unreasonably extends a

legal principle from [the Court’s] precedent to a new context

where it should not apply or unreasonably refuses to extend

that principle to a new context where it should apply.’ ”

(citing Williams, 529 U.S. at 407; Jackson v. Miller, 260

F.3d 769 (7th Cir. 2001)). While we strongly disapprove of

the prosecution’s clumsy attempts to discuss the burden of

proof, these comments simply could not have poisoned the

jury’s understanding in the same manner an erroneous jury

instruction would have.

The Supreme Court has never extended the application of

Cage and Sullivan to prosecutors’ misstatements and we

believe it would be inappropriate to do so in the instant

case. As always, we will analyze the petitioner’s prosecutorial misconduct claims under the standards set forth in

Darden.

[A]rguments of counsel generally carry less weight with

a jury than do instructions from the court. The former

are usually billed in advance to the jury as matters of

argument, not evidence, . . . and are likely viewed as
10 No. 05-1715

the statements of advocates; the latter, we have often

recognized, are viewed as definitive and binding statements of the law. See Carter v. Kentucky, 450 U.S. 288,

302-04, and n.20 (1981); Quercia v. United States, 289

U.S. 466, 470 (1933); Starr v. United States, 153 U.S.

614, 626 (1894). . . . This is not to say that prosecutorial

misrepresentations may never have a decisive effect on

the jury, but only that they are not to be judged as

having the same force as an instruction from the court.

And the arguments of counsel, like the instructions of

the court, must be judged in the context in which they

are made. Greer v. Miller, 483 U.S. 756, 766 (1987);

Darden v. Wainwright, 477 U.S. 168, 179 (1986); United

States v. Young, 470 U.S. 1, 11-12 (1985); see also

Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).

Boyde v. California, 494 U.S. 370, 384-85 (1990).

Therefore, we will analyze the prosecution’s comments

under Darden, rather than under the Cage and Sullivan

standard the petitioner suggests. Darden instructed a

reviewing court to make two inquiries concerning prosecutorial statements: 1) Were the prosecutor’s statements

improper; and 2) Was the defendant prejudiced? See

Ruvalcaba, 416 F.3d at 565.

The government does not dispute that the prosecution’s

statements were improper. Therefore, we need only evaluate whether the defendant was prejudiced. Under the

second prong of Darden, the question of whether a new trial

is constitutionally required depends on six factors:

(1) whether the prosecutor misstated the evidence, (2)

whether the remarks implicate specific rights of the

accused, (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.
No. 05-1715 11

Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000)

(citing Darden, 477 U.S. at 181-82; United States v.

Pirovolos, 844 F.2d 415, 426 (7th Cir. 1988)).

(1) Whether the prosecutor misstated the evidence.

Bartlett relies upon the prosecutor’s mention of “30%” as

evidence that he misstated the standard of proof. While the

prosecution’s statements were misguided, they were not as

misleading as the petitioner alleges. Taken in context, the

prosecution did not ask the jury to convict if they were only

70% sure of Bartlett’s guilt.

The Illinois Appellate Court found that although the

prosecution’s statements “appear[ ] at first glance to be

confusing and improper,” “a close reading of the State’s

comments here does not indicate that the state improperly

attempted to compare the ‘beyond a reasonable doubt

standard’ to a 30% completed puzzle.” People v. Bartlett, No.

1-00-3404, slip op. at 31-32 (Ill. App. Ct. 1st Dist. Sep. 24,

2002). This is a reasonable interpretation of the prosecution’s comments, and certainly does not lie “outside the

boundaries of permissible differences of opinion.” Jackson

v. Frank, 348 F.3d at 662 (citing Hardaway, 302 F.3d at

762).

(2) Whether the remarks implicate specific rights of the

accused.

While the right to be convicted only upon proof beyond

a reasonable doubt is a constitutional guarantee of extraordinary importance, a prosecutor’s remarks simply do not

implicate the rights of the accused to the same extent that

jury instructions do. While incorrect jury instructions,

which improperly alter the burden of proof, directly implicate the due process clause, Winship, 397 U.S. at 364, the

same cannot be said of misguided prosecutorial commentary.
12 No. 05-1715

(3) Whether the defense invited the response.

Where defense counsel has “invited” a response, a prosecutor’s otherwise improper remarks will not warrant reversal

of a conviction if they do nothing more than “right the

scale.” United States v. Young, 470 U.S. 1, 12-13 (1985). In

this case, the defendant’s closing argument had compared

the prosecution’s burden to a “brick mortar wall,” from

which the State was required to remove every brick.

Although Bartlett argues that the prosecution went beyond

a response to his “brick wall” comments by using the “Eiffel

Tower” analogy, such analogies need not involve the same

theoretical items (brick wall or Eiffel Tower) to be considered responsive.

While reasonable minds can dispute the relative weight

of these competing inappropriate analogies, the state

appellate court found, “In light of the fact that defendant’s

counsel analogized the State’s burden of proof to a ‘brick

wall’ and characterized it as ‘weighty,’ it was not inappropriate for the State to respond to those characterizations

during its rebuttal argument.” People v. Bartlett, No. 1-00-

3404, slip op. at 31 (Ill. App. Ct. 1st Dist. Sep. 24, 2002).

While the state appellate court went on to describe the

State’s comments as “confusing and improper” at “first

glance,” there was nothing unreasonable about the Illinois

Appellate Court’s assessment that the prosecution’s comments were within the range of permissible responses.

(4) The trial court’s instructions.

The trial court’s instructions stated, “Neither opening

statements nor closing arguments are evidence, and any

statement or argument . . . which is not based on the

evidence should be disregarded.” The trial court also

instructed the jury that, “The state has the burden of

proving the guilt of the defendant beyond a reasonable

doubt[.]”
No. 05-1715 13

Despite these instructions, Bartlett claims that the trial

court erred by failing to provide a curative instruction to

counteract the prosecution’s statements. While the trial

court did not specifically address the misleading comments

by the prosecutor, this failure alone does not constitute a

denial of due process. As stated previously, juries are

capable of distinguishing between instructions given by

the court and arguments made by the prosecution. It would

be folly for this Court to find that an offhand and arguably

prejudicial argument made by an attorney is of greater

weight than a court’s instructions.

(5) The weight of the evidence against the defendant.

The Illinois Appellate Court found “that none of the other

complained-of comments in defendant’s brief prejudiced

defendant, especially in light of the strong identification

evidence that was presented against defendant.” People v.

Bartlett, No. 1-00-3404, slip op. at 31 (Ill. App. Ct. 1st Dist.

Sep. 24, 2002). While the petitioner is correct that the jury

must assess the credibility of witnesses, see Goldman v.

United States, 245 U.S. 474, 477 (1918), the Illinois Appellate Court made a reasonable determination that given the

total weight of the evidence, the prosecutor’s comments did

not prevent the jury from understanding its role, making a

proper credibility determination, and assessing guilt beyond

a reasonable doubt.
14 No. 05-1715

(6) The defendant’s opportunity to rebut.

The defendant had no opportunity to answer the comments made in the prosecution’s rebuttal argument. The

petitioner argues that “[t]his lack of ability to respond was

exacerbated by the fact that the trial judge overruled

defense counsel’s objections to the State’s comments and

failed to issue curative instructions.” However, Bartlett only

objected to the prosecution’s first mention of a brick wall, a

statement made in response to his own misguided analogy.

Bartlett’s claim that the trial court implicitly endorsed the

prosecution’s “30%” statement by overruling his objection

rings hollow, as he never properly registered an objection to

the relevant comments.

Although no specific opportunity for rebuttal was provided to the defendant, the trial court’s jury instructions,

explaining the prosecution’s burden, were more

than sufficient to counteract the prosecutor’s wrongheaded

and inarticulate statements.

The district court stated that were it “free to make an

independent decision, we would conclude that the prosecutor’s comments were sufficiently prejudicial to warrant

vacating Bartlett’s conviction.” Rather than render a

prediction concerning what our independent judgment of

this case might be, we limit our affirmance to the district

court’s ultimate conclusion that regardless of whether

we agree with the Illinois Appellate Court’s conclusion, any

disagreements we may have are “not enough to render that

court’s decision objectively unreasonable” under 28 U.S.C.

§ 2254.

III. Conclusion

For the above stated reasons, we AFFIRM the district

court’s denial of the petition for a writ of habeas corpus.
No. 05-1715 15

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-21-06