In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2091

John Whitehead,

Petitioner-Appellant,

v.

Roger D. Cowan, Warden,

Menard Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 96 C 5013--Ann Claire Williams, Judge. 

Argued June 19, 2001--Decided August 29, 2001 

 Before Bauer, Manion, and Kanne, Circuit

Judges.

 Manion, Circuit Judge. Petitioner John

Whitehead was convicted by a jury in

Illinois state court of murder and

aggravated kidnaping. Whitehead was then

sentenced to death by the trial judge.

The Illinois Supreme Court affirmed his

conviction on direct appeal, and the

United States Supreme Court denied a

petition for writ of certiorari.

Whitehead then filed several petitions

for post-conviction relief in state

court. The trial court denied these peti

tions, and the Illinois Supreme Court

affirmed. Again the United States Supreme

Court denied a petition for writ of

certiorari. Whitehead then filed a

petition seeking a writ of habeas corpus

under 28 U.S.C. sec. 2254 alleging eleven

constitutional errors during his state

court trial and appeal. The district

court denied the petition, and Whitehead

appeals. We affirm.

I.

 The first Illinois Supreme Court opinion

provides a thorough summary of the facts

in this case, which we excerpt below:

Vickie Wrobel, a five-year-old girl who

lived with her parents in Joliet, was

missing from the family residence during
the evening of August 9, 1982. While

searching for her, Vickie Wrobel’s mother

asked the Wrobels’tenant, Esther Harmon,

whether she had seen Vickie. Esther

Harmon, her daughter, LeAllen Starbuck,

and LeAllen’s husband, William Starbuck,

lived with the defendant in a house

adjacent to the Wrobels’ tavern and home.

On speaking with Vickie Wrobel’s mother,

Esther Harmon discovered that both the

defendant and the Harmon car, which the

defendant sometimes used with her

permission, were also missing. Local

police agencies were notified that the

defendant was suspected of stealing

Esther Harmon’s car and that he might

have taken Vickie Wrobel.

Sometime after midnight the following

morning, the defendant telephoned the

Wrobels’ tavern and spoke with LeAllen

Starbuck. He told LeAllen that he was

calling from Samuel and Jeanine

Starbuck’s in Godley; Jeanine is the

defendant’s sister and is married to

William Starbuck’s brother. LeAllen

advised the defendant to stay at his

sister’s home, and she then told the

police where the defendant was located.

Shortly after LeAllen’s call, area police

arrived at the Starbuck residence in

Godley. The officers saw Esther Harmon’s

automobile parked in front of the

residence, and from outside the car

officers observed clothing on the front

seat of the car that matched the

description of clothing worn by Vickie

Wrobel when she disappeared the previous

evening. Samuel Starbuck let the officers

into his living room, where the defendant

was seated. The defendant admitted to

being in possession of Esther Harmon’s

car, and he was arrested for auto theft.

The defendant was questioned by two

detectives of the Joliet police

department from about 4 a.m. until 6:30

a.m. that day. He was generally

responsive, but when questioned

concerning the whereabouts or condition

of Vickie Wrobel, the defendant made no

statements other than "I can’t" or "I

can’t tell you." The interrogation ended

when the defendant indicated a desire to

consult with an attorney.

An hour or so later, at approximately

7:30 a.m. on August 10, 1982, railroad

workers discovered a naked body, later
identified as the body of Vickie Wrobel,

floating in the Mazon River. An autopsy

revealed that the victim had been

sexually molested and had been killed by

strangulation and drowning. Physical

evidence recovered alongside the river

included articles of the victim’s

clothing and a shirt later identified as

the shirt worn by the defendant on the

evening of August 9. In the shirt pocket

there was a lottery ticket with writing

that a handwriting analyst identified as

the defendant’s.

Additional physical evidence implicating

the defendant was found in Esther

Harmon’s automobile. Some of the victim’s

clothing was on the front seat. Also

found was a plastic drinking cup similar

to that given Vickie Wrobel by the

Wrobels’ bartender shortly before the

girl disappeared. The armrest and

passenger door panel were stained with a

fluid that was determined to have a

chemical composition consistent with the

nonalcoholic "cocktail" served to Vickie

Wrobel in the plastic cup. The floormats

in Esther Harmon’s car were damp, and

vegetation like that growing along the

Mazon River was also found on the floor

area in front of thedriver’s seat. Other

evidence produced at trial placed the

defendant in the general vicinity where

Vickie Wrobel was playing immediately

prior to her apparent kidnaping.

While in the custody of the Joliet police

department on the 10th and 11th of

August, the defendant made eight

statements to investigating officers in

which he admitted kidnaping, sexually

assaulting, and killing Vickie Wrobel.

His description of how he sexually abused

the victim was consistent with the

autopsy report, and the defendant’s claim

of having forced Vickie Wrobel to drink

beer was also substantiated by the postmortem examination.

People v. Whitehead, 508 N.E.2d 687, 689-

90 (Ill. 1987) ("Whitehead I").

 In July 1983, Whitehead was convicted in

the Circuit Court of Grundy County of

murder and aggravated kidnaping.

Whitehead waived his right to have a jury

determine his sentence, and the trial

judge sentenced Whitehead to death. On

February 20, 1987, the Illinois Supreme

Court affirmed on direct appeal. The
United States Supreme Court denied a

petition for writ of certiorari.

Whitehead’s subsequent petitions for

state post-conviction relief were also

denied, and on February 15, 1996, the

Illinois Supreme Court again affirmed.

Once again, the United States Supreme

Court denied a petition for writ of

certiorari.

 On May 20, 1997, Whitehead filed a

petition for writ of habeas corpus in

federal district court. This petition was

amended on August 10, 1998, and alleged

eleven grounds for relief. On March 30,

2000, the district court denied habeas

relief, and on April 13, 2000, Whitehead

filed a motion for certificate of

appealability. The district court denied

the motion. On April 26, 2000, Whitehead

appealed the denial of habeas relief, and

this case was docketed. On May 15, 2000,

Whitehead sought a certificate of

appealability from this court, which was

granted on five issues. Whitehead claimed

his inculpatory statements were admitted

in violation of the Fifth and Fourteenth

Amendments; that he was not tried before

a fair and impartial jury in violation of

the Fifth and Fourteenth Amendments; that

there was prosecutorial misconduct in

violation of the Fifth and Fourteenth

Amendments; that he received ineffective

assistance of counsel in violation of the

Sixth and Fourteenth Amendments; and that

there was an invalid waiver of a

sentencing jury in a capital case, in

violation of the Fourteenth Amendment.

II.

 As the habeas petition in this case was

filed after the effective date of the

Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), 28 U.S.C. sec.

2254, the standard of review contained

therein governs Whitehead’s claims. See

Lindh v. Murphy, 521 U.S. 320, 322-23

(1997). The relevant portion of the AEDPA

provides:

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 determined by the Supreme

Court of the United States; . . . .

28 U.S.C. sec. 2254(d)(1).

 As the Supreme Court has explained, a

state court decision is "contrary to"

clearly established Supreme Court

precedent "if the state court applies a

rule that contradicts the governing law

set forth in [Supreme Court] cases," or

"if the state court confronts a set of

facts that are materially

indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives

at a result different from [Supreme

Court] precedent." Williams v. Taylor,

529 U.S. 362, 405 (2000). A state court

decision is an "unreasonable application"

of clearly established Supreme Court

precedent when "the state court

identifies the correct governing legal

rule from [the Supreme Court’s] cases but

unreasonably applies it to the facts of

the particular state prisoner’s case," or

"the state court either unreasonably

extends a legal principle from [Supreme

Court] 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." Id. at

407.

 On appeal from a ruling on a petition

for habeas relief, we review the district

court’s findings of fact for clear error

and its rulings on issues of law de novo.

See Denny v. Gudmanson, 252 F.3d 896, 900

(7th Cir. 2001). If the case falls under

the "contrary to" clause of sec.

2254(d)(1), then we review the state

court decision de novo to decide what is

clearly established law as determined by

the Supreme Court and whether the state

court decision was "contrary to" that

Supreme Court precedent. See id. If, on

the other hand, the case falls under the

"unreasonable application" clause, then

we defer to a reasonable state court

decision. See id. Moreover, state court

factual findings that are reasonably

based on the record are presumed correct.

See 28 U.S.C. sec. 2254(e)(1); Gudmanson,

252 F.3d at 900.

A. Whitehead’s Inculpatory Statements

 Whitehead challenges the admission at

trial of his inculpatory statements,
claiming they were the product of a

police interrogation in violation of the

Fifth and Fourteenth Amendments to the

Constitution. The district court

succinctly set forth the background for

this claim, as follows:

After taking Whitehead into police

custody, the Joliet police began

interrogating him about the disappearance

of Vickie Wrobel. Whenever the police

asked Whitehead about Vickie, he simply

responded, "I can’t" or "I can’t tell

you." Eventually, Whitehead told the

police that he wanted an attorney and the

interrogation ended.

Prior to Whitehead’s interrogation, both

LeAllen Starbuck and Jeanine Starbuck

indicated to police that if Whitehead

knew anything about Vickie’s

disappearance, they were the only two

people in whom he would confide that

information. Nevertheless, police refused

to let either LeAllen Starbuck or Jeanine

Starbuck speak to Whitehead and

unsuccessfully tried to get Whitehead to

confess that he knew something about

Vickie’s whereabouts. After two and a

half hours of trying, and after Whitehead

had invoked his right to have an attorney

with him during any further questioning,

the police ended their interrogation.

Before and after the interrogation

LeAllen Starbuck requested to speak with

Whitehead, but the police initially

refused to let her see him. Eventually,

the police allowed LeAllen to meet with

Whitehead and during their meeting,

LeAllen persuaded Whitehead to tell her

everything he knew about Vickie’s

disappearance. Whitehead then admitted to

LeAllen that he had killed Vickie.

LeAllen convinced Whitehead that he

should confess to the police because he

was mentally ill, needed treatment, and

that the only way he could get help was

to confess his crime to the police.

Whitehead agreed to confess and sent

LeAllen out of the room to notify the

police that he would talk to them. When

police returned to the room, Whitehead

made eight statements in which he

admitted to killing and raping Vickie.

United States v. Page, 2000 WL 343209, *4

(N.D.Ill. 2000).

 Under Miranda v. Arizona, 384 U.S. 436,
474 (1966), once a suspect requests an

attorney, a police interrogation must

cease until an attorney is present,

unless the conversation is reinitiated by

the suspect. Whitehead claims his right

against self-incrimination under the

Fifth and Fourteenth Amendments was

violated because interrogation proceeded

after he had requested an attorney.

Whitehead also claims that the

prosecution bears a heavy burden to prove

that a defendant initiated further

communication with the police if the

interrogation continued after an attorney

was requested, citing Edwards v. Arizona,

451 U.S. 477, 484-85 (1981), and claims

that the prosecution never met this

alleged burden.

 As is evident from the undisputed facts

of this case, however, the police

themselves did not interrogate Whitehead

after he requested an attorney. Indeed,

Whitehead does not claim that he did not

reinitiate the interrogation after

speaking with LeAllen Starbuck. Instead,

Whitehead theorizes that the conversation

he had with LeAllen Starbuck was itself

the "functional equivalent" of a police

interrogation, citing Rhode Island v.

Innis, 446 U.S. 291 (1980). In Innis, the

Supreme Court explained that the Miranda

protections extend to the functional

equivalent of express questioning,

defined as "any words or actions on the

part of the police (other than those

normally attendant to arrest and custody)

that the police should know are

reasonably likely to elicit an

incriminating response from the suspect."

See id. at 301. And, in inquiring whether

police actions are the functional

equivalent of express questioning, the

Court explained that the proper focus is

"primarily upon the perceptions of the

suspect, rather than the intent of the

police." Id.

 But Innis, and by extension Miranda,

provide no relief for Whitehead. The

Supreme Court has already addressed a

situation akin to Whitehead’s in Arizona

v. Mauro, 481 U.S. 520 (1987), and

concluded that no interrogation occurred.

In that case, Mauro had confessed to

killing his son. After his arrest, he

requested an attorney and all questioning

of Mauro ceased. A police officer was

questioning the suspect’s wife, Mrs.

Mauro, in another room. She asked to

speak with her husband, and although the
police were reluctant, they allowed her

to see him in the presence of the police,

who placed a tape recorder in plain view.

Mauro instructed his wife not to answer

any police questions until an attorney

was present, and stated, "Don’t answer

any questions until you get rights of

attorney before you find out whats [sic]

going on. You tried to stop me as best

you can. What are you going to do, kill

me? You tried the best you can to stop

me." The tape of this conversation was

used in the rebuttal to Mauro’s insanity

defense at trial. Using the "functional

equivalent" theory Whitehead now raises,

Mauro sought to suppress the evidence on

the theory that it was the product of

police interrogation in violation of his

Miranda rights. The Supreme Court

nevertheless determined that Mauro’s

right against self-incrimination was not

violated.

 There is no relevant difference between

the Mauro case and the present one. As

the Mauro Court emphasized, "The tape

recording of the conversation between

Mauro and his wife shows that Detective

Manson asked Mauro no questions about the

crime or his conduct. Nor is it

suggested--or supported by any evidence--

that Sergeant Allen’s decision to allow

Mauro’s wife to see him was the kind of

psychological ploy that properly could be

treated as the functional equivalent of

interrogation." Id. at 527. Likewise, in

the present case, the police asked no

questions of Whitehead--in fact unlike

Mauro they were not even in the room when

LeAllen Starbuck spoke with Whitehead.

There is no evidence to support a claim

that the police engaged in a

psychological ploy designed to elicit a

confession. Indeed, there is no evidence

presented that the police gave LeAllen

Starbuck any instructions to say certain

things to Whitehead.

 Whitehead points to evidence the police

expected that if his sister, Jeanine

Starbuck, spoke to Whitehead she would

relay any information to them, and points

to evidence that the police did not

expect their own questioning of Whitehead

to be successful. According to Whitehead,

the "inescapable common sense and

reasonable conclusion" is that the police

had "more than just a hope" that LeAllen

Starbuck would procure incriminating

evidence against Whitehead. This is not
an inescapable conclusion, however--it is

speculation. In Mauro, "both detectives

had acknowledged in pretrial hearings

that they knew it was ’possible’ that

Mauro might make incriminating statements

if he saw his wife." See id. at 524. It

is beyond imagining that the police in

Mauro did not hope this possibility would

come to fruition, but that does not mean

that a ploy existed: "Officers do not

interrogate a suspect simply by hoping

that he will incriminate himself." Id. at

529. A police awareness that suspects

sometimes confess after they speak with

close friends or family does not mean

this court should adopt a rule that

encourages police to bar friends or

family members from seeing a suspect. Cf.

id. at 530 ("Police departments need not

adopt inflexible rules barring suspects

from speaking with their spouses . . .

.").

 Whatever hopes the police may have had

in this case, it is clear from the record

that they had no plan to have LeAllen

Starbuck speak with Whitehead as their

agent. To the contrary, they initially

refused her request. LeAllen Starbuck was

not instructed by the police to ask

certain questions or achieve a certain

result. Most importantly, there was

nothing about her presence which would

make Whitehead feel that he had to

confess to her, and it is the suspect’s

perspective which matters. See Innis, 446

U.S. at 301. As the Supreme Court summed

up its decision in Mauro, the petitioner

"was not subjected to compelling

influences, psychological ploys, or

direct questioning. Thus, his volunteered

statements cannot properly be considered

the result of police interrogation." See

Mauro, 481 U.S. at 529. The same

reasoning applies here. See also United

States v. Gaddy, 894 F.2d 1307, 1311

(11th Cir. 1990) (suspect in custody was

not interrogated when aunt, who was

employed by the police department, urged

him to tell police what he knew about a

crime); Snethen v. Nix, 885 F.2d 456, 457

(8th Cir. 1989) (suspect in custody was

not interrogated when he confessed after

a conversation with his mother, who had

told police before the conversation that

"if [my son] did this, he will tell

me.").

B. Fair and Impartial Jury
 Whitehead raises several arguments that

he was deprived of a fair trial before an

impartial jury in violation of the Fifth

and Fourteenth Amendments. Each of these

arguments was considered, and rejected,

by the Illinois Supreme Court.

Whitehead’s first claim is that the state

trial court should have granted his

motion to have his case transferred to

another venue because of pretrial

publicity and local animosity. Whitehead

argues that he was deprived of a fair

trial before an impartial jury because of

the effects of this publicity and

animosity on his trial.

 1. Newspaper publicity.

 In support, Whitehead states that the

local newspaper, the Morris Daily Herald,

published articles containing information

not admitted at trial, including

Whitehead’s alleged request for the death

penalty, his prior criminal record, and

his suspected involvement in an unrelated

child abduction case. He further notes

that trial counsel "was told by everyone

he spoke with in the community that they

felt the Petitioner should be killed."

Whitehead also points to the voir dire

testimony of five individuals who

ultimately sat on the jury./1 One juror

stated that she regularly read the Morris

Daily Herald and had read articles about

the case that "had something to do with

how many jurors they were going to

choose" and described "going through a

lot of motions in court about it, some

different legalities; I don’t even

remember what they were." Another juror

who read the Morris Daily Herald

remembered reading articles about

"appeals and motions" and "that the man

had been charged and that there had been

a motion for moving the trial and other

things that was [sic] in there." An

additional juror recalled reading that

"one police officer erased a tape. I do

remember that. What the tape was, I

couldn’t tell you. I don’t recall what

the tape was except through some error,

he erased the tape. That’s all I remember

about it at this time, yes." Yet another

juror remembered reading "something in

the paper saying that this trial was

coming up." Finally, a juror testified

that he had not read "a great deal about

the case and did not recall reading any

statements about [Whitehead] or police
officers." This juror did admit, however,

that "all I know is what I have read in

the paper, which I assume they know what

they are talking about more or less, and

that’s all, what’s been said in the

paper." Upon questioning from the trial

judge, however, each of these jurors

testified during voir dire that they

could approach the case with an open

mind, despite the articles they had read.

See Whitehead I, 508 N.E.2d at 692.

 "The constitutional standard of fairness

requires that a defendant have a panel of

impartial, ’indifferent jurors.’" Murphy

v. Florida, 421 U.S. 794, 799 (1975)

(quoting Irvin v. Dowd, 366 U.S. 717, 722

(1961)). "To hold that the mere existence

of any preconceived notion as to the

guilt or innocence of an accused, without

more, is sufficient to rebut the

presumption of a prospective juror’s

impartiality would be to establish an

impossible standard. It is sufficient if

the juror can lay aside his impression or

opinion and render a verdict based on the

evidence presented in court." Irvin, 366

U.S. at 723. "At the same time, the

juror’s assurances that he is equal to

this task cannot be dispositive of the

accused’s rights, and it remains open to

the defendant to demonstrate ’the actual

existence of such an opinion in the mind

of the juror as will demonstrate the

presumption of partiality.’" Murphy, 421

U.S. at 800 (quoting Irvin, 366 U.S. at

723).

 Whitehead relies heavily on the extreme

cases where an intrusive media presence

has utterly corrupted the proceedings.

See, e.g., Estes v. Texas, 381 U.S. 532

(1965), Rideau v. Louisiana, 373 U.S. 723

(1963). In Estes and Rideau, prejudice

was presumed and a new trial was

mandated. But Whitehead has not presented

evidence sufficient to create the

presumption of prejudice that is required

by such cases. In Estes, the trial was

conducted in a circus atmosphere, with

the press sitting within the bar of the

court. In Rideau, a twenty-minute

confession by the defendant was broadcast

three times by a local television

station. As the Supreme Court noted in

Murphy, the proceedings in those cases

"were entirely lacking in the solemnity

and sobriety to which a defendant is

entitled in a system that subscribes to

the notion of fairness and rejects the
verdict of a mob. They cannot be made to

stand for the proposition that juror

exposure to information about a state

defendant’s prior convictions or to news

accounts of the crime with which he is

charged alone presumptively deprives the

defendant of due process." 421 U.S. at

799.

 This case resembles the situations in

Murphy and Patton v. Yount, 467 U.S. 1025

(1984), in which the Supreme Court held

that the right to an impartial jury was

not denied. In Murphy, there was no

circus-like atmosphere to the trial; the

court held that the media presence was

insufficient to create a presumption of

prejudice, and that the voir dire

"indicate[d] no such hostility to

petitioner by the jurors who served in

his trial as to suggest a partiality that

could not be laid aside." Murphy, 421

U.S. at 800. And in Yount, publicity had

revealed the petitioner’s prior

conviction for murder, his confession,

and his prior plea of temporary insanity,

none of which were admitted as evidence

at trial. In that case, the defendant was

tried twice. There was evidence that the

jurors had formed an opinion of guilt

years before the second trial, but that

they did not hold a fixed opinion when

they were seated as jurors for that

trial. In addition, some jurors provided

testimony regarding their opinion of the

case that was ambiguous or contradictory.

The Court nevertheless deferred to the

trial court’s holding that the jurors

were impartial. See Yount, 467 U.S. at

1040. Similarly, the voir dire testimony

in this case indicates that the jurors

had no fixed opinions about the guilt or

innocence of Whitehead. If anything, the

evidence in the present case is much

milder than the evidence in Yount. In

light of the Supreme Court’s decisions in

Murphy and Yount, we conclude that the

Illinois Supreme Court’s ruling on this

issue was not contrary to or an

unreasonable application of established

Supreme Court precedent. 

 2. Publication of juror names and

addresses.

 Next, Whitehead argues that his right to

a fair and impartial jury was violated

because a local newspaper published the

names and addresses of the jurors.
Indeed, the Supreme Court has found that

publication of juror names and addresses

can contribute to the deprivation of a

fair trial. See Sheppard v. Maxwell, 384

U.S. 333 (1966). Sheppard, like Estes and

Rideau, was a case of presumed prejudice,

however. The result in that case "arose

from a trial infected not only by a

background of extremely inflammatory pub

licity but also by a courthouse given

over to accommodate the public appetite

for carnival." Murphy, 421 U.S. at 799.

Moreover, in Sheppard the publication of

juror names and addresses meant that "the

jurors were thrust into the role of

celebrities." The publication of their

names and addresses resulted in

"expressions of opinion from both cranks

and friends," including anonymous

letters. See Sheppard, 384 U.S. at 353.

There is no evidence of similar juror

contacts in this case, and the Sheppard

Court based its decision on the totality

of the circumstances. We conclude that

Sheppard does not require a finding of

presumed prejudice based on the

publication of juror names and addresses

in the circumstances of this case.

 In addition, the mere fact that the jury

was exposed to something which could

theoretically affect its vote is not

sufficient to require a new trial. As the

Supreme Court has noted:

[D]ue process does not require a new

trial every time a juror has been placed

in a potentially compromising situation.

Were that the rule, few trials would be

constitutionally acceptable. The

safeguards of juror impartiality, such as

voir dire and protective instructions

from the trial judge, are not infallible;

it is virtually impossible to shield

jurors from every contact or influence

that might theoretically affect their

vote. Due process means a jury capable

and willing to decide the case solely on

the evidence before it, and a trial judge

ever watchful to prevent prejudicial

occurrences and to determine the effect

of such occurrences when they happen.

Smith v. Phillips, 455 U.S. 209, 217

(1982).

 Here, Whitehead simply presents

speculation that the jury was not

impartial because jurors complained about

the publication of their names and
addresses. Evidence that the jury was

displeased that their anonymity was lost

in a murder trial, however, is a long way

from evidence that jurors were less than

impartial. We agree with the Illinois

Supreme Court that "[w]e cannot infer . .

. on this basis that an honest juror

would therefore give sway to his emotions

and disregard the fundamental requirement

of a fair trial and decide to convict a

person in order to be absolutely secure."

People v. Whitehead, 662 N.E.2d 1304,

1326 (Ill. 1996) ("Whitehead II"). Cf.

Kinnamon v. Scott, 40 F.3d 731, 733 (5th

Cir. 1994) ("That members of a jury in a

capital murder case do not want the

defendant examining information

concerning their home addresses, phone

numbers, etc. raises no concern of

constitutional magnitude."). There is no

reasonable possibility that the

publication of names and addresses

affected the jury’s verdict, and this is

fatal to Whitehead’s claim. See United

States v. Davis, 15 F.3d 1393, 1412 (7th

Cir. 1994). In sum, the Illinois Supreme

Court’s ruling on this issue was not

contrary to, or an unreasonable

application of, clearly established

federal law.

 In this case, it would be sheer

speculation to suggest the publication of

addresses would prejudice the jury, and

accordingly we do not think a hearing was

necessary on these facts. "’[T]he duty to

investigate arises only when the party

alleging misconduct makes an adequate

showing of extrinsic influence to

overcome the presumption of jury

impartiality. In other words, there must

be something more than mere speculation.’"

Id. (quoting United States v. Barshov,

733 F.2d 842, 851 (11th Cir. 1984)).

 Whitehead nevertheless claims that the

publication of jurors’ names and

addresses requires a hearing to determine

its effect under Remmer v. United States,

347 U.S. 227, 229 (1954). In Remmer, a

third party contacted a juror and

suggested that "he could profit by

bringing in a verdict favorable to the

petitioner." Id. at 228. The defendant

moved for a new trial and sought a

hearing on the issue, which was denied by

the trial court. The Supreme Court,

however, ruled that a hearing was

necessary in these circumstances. As the

Remmer Court explained:
In a criminal case, any private

communication, contact, or tampering

directly or indirectly, with a juror

during a trial about the matter pending

before the jury is, for obvious reasons,

deemed presumptively prejudicial, if not

made in pursuance of known rules of the

court and the instruction and directions

of the court made during the trial, with

full knowledge of the parties. The

presumption is not conclusive, but the

burden rests heavily upon the Government

to establish, after notice to and a

hearing of the defendant, that such

contact with the juror was harmless to

the defendant.

Id. at 229.

 Although it is true that Remmer calls

for a hearing in many cases where there

is a communication with a juror during a

trial, we do not agree that Remmer

applies to the publication of juror

addresses. See United States v.-WilliamsDavis, 90 F.3d 490, 501 (D.C. Cir. 1996)

("In affirming the trial court, we

endorse its view that defendants bringing

post-trial claims of mid-trial media

exposure must make a threshold showing of

a likelihood of prejudice. . . . [W]e

think Remmer never applied at all outside

the area of private contacts with

jurors."). See also United States v.

Boylan, 898 F.2d 230, 258-60 (1st Cir.

1990). The media publication of the

jurors’ names and addresses does not

address a matter at issue in the trial or

provide any new information about the

case to the jurors, nor did the context

of the publication, as in Sheppard,

demonstrate a likelihood that it would

affect the jury’s deliberations. This is

not a third-party contact of the sort

described in Remmer. We conclude that the

Illinois Supreme Court’s determination

that a hearing was unnecessary was

appropriate on these facts./2

 3. Emotional outburst in jury’s presence

and judge’s absence.

 Finally, Whitehead claims that the jury

was prejudiced because at one point in

the trial, the judge, counsel, and court

reporter retired to chambers while the

jury, Whitehead, and the victim’s mother,

who was on the witness stand, remained in

court. Whitehead presents affidavits from
a juror and the court clerk, stating that

during the judge’s absence the victim’s

mother rose and began shouting at the

defendant and crying. Allegedly, she then

asked the petitioner why he had killed

her daughter. Once back on the bench, the

trial judge admonished the jury to

disregard any comments which might have

been made by the witness.

 Obviously, the trial judge should never

have permitted this circumstance to arise

by leaving the courtroom with jurors in

the jury box, the victim’s mother on the

witness stand, and the petitioner seated

at his table. It is not surprising that a

mother would have this reaction in the

presence of the suspected murderer of her

child, and had the judge been there he

could have prevented or at least

controlled the situation. The question is

what effect this error would have on the

jury. Any jury would expect that a close

relative of the victim would have strong

emotions towards the suspected killer.

The outburst directed at the accused in

the presence of the jury did not provide

any information not admitted at trial

that could indicate guilt or innocence.

Unfortunate as the event was, it was not

an error that automatically requires a

new trial.

 In a similar capital case, Kinnamon, the

Fifth Circuit addressed a situation where

the jury, the prosecutor, the petitioner,

and the victim’s daughter were left alone

in a room together. According to a juror

affidavit, the victim’s daughter was

crying loudly in front of the jury,

although the juror could not remember

what the daughter was saying. The

petitioner’s sister provided an affidavit

that the daughter began screaming that

the petitioner had killed her father. The

state judge presiding over a habeas

challenge was unpersuaded that this

outburst had occurred. The Kinnamon court

concluded, "we are unpersuaded that there

was any prejudicial error of

constitutional magnitude. That the young

girl was upset and angry at the person

accused by the state as the murderer of

her father communicated nothing new to

the jury, even if the incident occurred."

40 F.3d at 734. We agree with this

analysis. Moreover, the trial court here

specifically instructed the jurors to

ignore any comments they might have

heard. This further suggests that the
comments would not have had any impact on

the jury. See Messer v. Kemp, 760 F.2d

1080 (11th Cir. 1985) (noting import of

trial court’s curative instruction in

case of emotional outburst before jury).

Finally, the evidence of defendant’s

guilt was overwhelming, and this

"militates against a finding that the

introduction of the disputed [material]

effected the jury’s verdict." United

States v. Paneras, 222 F.3d 406, 411 (7th

Cir. 2000). 

 Whitehead nevertheless claims a hearing

was necessary to determine whether or not

the mother’s outburst had any impact on

the jury’s impartiality. Again, Whitehead

cites Remmer for this proposition. As

noted, in Remmer a juror was anonymously

contacted and told he could profit if he

found for the defendant. Although the

juror told the judge (who then had the

FBI investigate), the defendant did not

find out about the contact until after

the jury found him guilty. The government

responds that Remmer does not apply to

these facts because they do not involve

jury tampering. True, Remmer involved a

private contact that appeared to be jury

tampering, something the court labeled

"presumptively prejudicial," requiring a

hearing to determine whether the contact

was harmless. Whether the absence of jury

tampering would foreclose the

applicability of the Remmer presumption

is open to debate. Cf. United States v.

Dutkel, 192 F.3d 893, 895 (9th Cir. 1999)

(limiting Remmer’s presumption of

prejudice to cases where jury tampering

established). Even if the Remmer

presumption applies to jury contacts

which do not involve jury tampering, how

ever, we nevertheless conclude that the

Remmer presumption does not apply on

these facts.

 The mother’s outburst was directed at

Whitehead, not the jury. Although the

judge was inexplicably absent, the jury

heard the outburst collectively and was

then admonished immediately when the

judge returned "to disregard any comments

that may have been made by the witness

when the attorneys were absent and when

the Court was absent." No one present,

including Whitehead, claims the mother

said anything to the jury, and her

recorded testimony after the outburst

reiterated her grief of losing her

daughter. The mother did not attempt to

persuade the jury, nor did she provide
them with any extraneous information

about the facts of the case. This is a

situation quite unlike the private

communication with the jury encountered

in Remmer. The mother’s outburst was not

"a purposeful intrusion into the sanctity

of the juror’s domain." See Schaff v.

Snyder, 190 F.3d 513, 534 (distinguishing

a child’s whisper to its parent that was

overheard by a juror from a purposeful

intrusion). While understandably

emotional, the statement was not

prejudicial.

 This case involves an innocuous comment,

and as we have held previously, no Remmer

hearing is necessary in these

circumstances. See United States v.

Thibodeaux, 758 F.2d 199, 202-03 (7th

Cir. 1985) (district court did not err

where no inquiry was made into juror

reaction to a communication because,

unlike Remmer, the comment heard by a

juror was ambiguous and innocuous).

Furthermore, a number of cases from other

circuits confine Remmer to private

contacts with jurors that actually pose a

danger of prejudicing the jury. See,

e.g., White v. Smith, 984 F.2d 163 (6th

Cir. 1993) (not applying Remmer where

victim’s mother, a spectator, told jury

"I will pray for you" before jury retired

to deliberate); Wright v. Angelone, 151

F.3d 151, 160 n.6 (4th Cir. 1998)

(limiting Remmer to cases where

petitioner "introduce[d] competent

evidence that there was an extrajudicial

communication or contact, and that it was

more than innocuous interventions.")

(internal quotations and citations

omitted); Boylan, 898 F.2d at 261

(limiting Remmer presumption of prejudice

to cases where "there is an egregious

tampering or third party communication

which directly injects itself into the

jury process."). See also United States

v. Brooks, 161 F.3d 1240, 1247 (10th Cir.

1998) (a juror was witnessed smoking a

cigarette outside during a lunch break

and talking to two security officers for

at least ten minutes; the court concluded

that Remmer did not apply because there

was no evidence in the record that the

discussion with the security officers was

"about the matter pending before the

jury."). These decisions recognize that

not all juror contacts present Remmer

situations, and are in accord with

subsequent Supreme Court holdings

respecting juror contacts. See, e.g.,
Phillips, 455 U.S. 209 (not applying Rem

mer presumption where juror applied for

job in the district attorney’s office);

Rushen v. Spain, 464 U.S. 114 (1983) (not

applying Remmer presumption in case of ex

parte juror contact with judge). This

case, like the abovementioned circuit

decisions, simply does not implicate the

Remmer presumption. The emotional

comment, directed at the accused in front

of the entire jury, would not affect a

reasonable juror’s deliberation as to

whether or not Whitehead committed the

crime. 

 Whitehead emphasizes, however, that the

mother’s outburst occurred off the

record. While this is indeed cause for

concern, cf. Degrave v. United States,

820 F.2d 870, 872 (7th Cir. 1987), it is

not necessarily a decisive error. The

significance of an off-the-record contact

or communication with one or more jurors

will vary with the circumstances of each

case. Cf. Paneras, 222 F.3d at 411 ("Each

case turns on its own facts, and on ’the

degree and pervasiveness of the

prejudicial influence possibly

resulting.’") (quoting United States v.

Solomon, 422 F.2d 1110, 1118 (7th Cir.

1970)). In this case, there is no mystery

about the relevant facts of the mother’s

outburst; Whitehead, who was himself a

witness to the mother’s outburst, does

not allege that anything other than the

abovementioned comments were made.

Moreover, the Illinois Supreme Court

assumed that the outburst occurred as

alleged by Whitehead. We will not

speculate in these circumstances that

more might have been said or done. Cf.

Davis, 15 F.3d at 1412-13. See also

Brooks, 161 F.3d 1240.

 The fact that the outburst was off the

record bears consideration, however, in

terms of the jury’s mental state. The

question raised here is not what was

said, but rather how the jury reacted to

this event. The fact that the outburst

was off the record, in the absence of the

state trial judge, means that the trial

judge would not be in a position to

ascertain the effect of the mother’s

outburst as it was occurring. The content

and duration of the outburst, however, is

such that it is not reasonable to imagine

it would affect the jury’s deliberations.

And, despite the off-the-record nature of

the outburst, it is also very significant
that the jury was instructed to ignore

any comments made during the judge’s

absence. See Francis v. Franklin, 471

U.S. 307, 324 n.9 (1985) (crucial

assumption of our constitutional system

is that jurors carefully follow the trial

court’s instructions).

 In this case, the Illinois Supreme Court

gave careful thought to Whitehead’s

arguments and treated his allegation of

the mother’s outburst as true. The court

concluded: "[t]he incident was apparently

brief, it was isolated, there was no

attempt to obtain the jury’s sympathy as

a result of it, the court admonished the

jury, and there was no indication in the

record that it would have been unable to

heed the admonition and disregard the

incident during its deliberations. Simply

put, mere speculation concerning

prejudice to the defendant is not

sufficient to warrant reversal."

Whitehead II, 662 N.E.2d at 1326. We

agree.

 The trial court’s error, which led to

the mother’s outburst, was harmless

error./3 Even under Remmer, the

presumption is "rebutted if the court

finds that there was no ’reasonable

possibility’ that the verdict was

affected by the contact." See United

States v. Sanders, 962 F.2d 660, 668 (7th

Cir. 1992) (quoting United States v.

Bruscino, 687 F.2d 938, 940 (7th Cir.

1982) (en banc)). "Factors that the court

should look to in making this

determination include the extent and

nature of the unauthorized contact, the

power of curative instructions, and the

responses of the jury." Id. at 668-69.

 The extent and nature of the

unauthorized contact, and the trial

court’s curative instruction, leave no

reasonable possibility that the verdict

was affected by the contact. Although the

events occurred off the record, their

nature and the curative instruction

indicate that an evidentiary hearing into

the responses of the jury was not

required. Cf. Porter v. Gramley, 112 F.3d

1308, 1318 (7th Cir. 1997) (record was

insufficient to show actual juror bias in

case where court assumed the trial court

conducted an inadequate hearing on juror

bias). In short, the harmlessness of the

mother’s outburst precludes habeas

relief.
C. Prosecutorial Misconduct

 Whitehead next alleges that several

comments by the prosecutor during closing

arguments deprived him of his due process

right to a fair trial under the Fifth and

Fourteenth Amendments. 

 Before we reach the merits of these

misconduct claims, we first address a

procedural argument raised by the

government. The government argues that

the district court erred in holding that

Whitehead’s prosecutorial misconduct

claims were not procedurally defaulted

because they had been fairly presented to

the state court. According to the

government, these claims should have been

barred under the independent and adequate

state grounds doctrine.

 When Whitehead raised his prosecutorial

misconduct claims on direct appeal, the

Illinois Supreme Court determined they

were waived because Whitehead had not ob

jected to the remarks during trial or in

his post-trial brief, thus foreclosing

his claims under Illinois law. See

Whitehead I, 508 N.E.2d at 687, 694-95.

The Illinois Supreme Court’s ruling thus

constitutes an independent and adequate

state ground for its decision, and bars

federal review of the issue. See Franklin

v. Gilmore, 188 F.3d 877, 886 (7th Cir.

1999); Coleman v. Thompson, 501 U.S. 722,

729 (1991). In order to avoid this bar,

the habeas petitioner must demonstrate

cause for the default and actual

prejudice resulting from the alleged

violation of federal law, or else

demonstrate that failure to consider his

claims would result in a fundamental

miscarriage of justice. See id. at 750. 

 As the Supreme Court noted in Coleman,

"[w]hen the independent and adequate

state ground supporting a habeas

petitioner’s custody is a state

procedural default, an additional concern

comes into play. This Court has long held

that a state prisoner’s federal habeas

petition should be dismissed if the

prisoner has not exhausted available

state remedies as to any of his federal

claims." 501 U.S. at 731. "[T]he

exhaustion doctrine is designed to give

the state courts a full and fair

opportunity to resolve federal

constitutional claims before those claims
are presented to the federal courts."

O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999). Accordingly, the petitioner must

"fairly present" the federal issue to the

state courts as a precondition to exhaus

tion. See Verdin v. O’Leary, 972 F.2d

1467, 1472-73 (7th Cir. 1992).

 In Verdin, this court adopted the

following test for fair presentment:

If the petitioner’s argument to the state

court did not: (1) rely on pertinent

federal cases employing constitutional

analysis; (2) rely on state cases

applying constitutional analysis to a

similar factual situation; (3) assert the

claim in terms so particular as to call

to mind a specific constitutional right;

or (4) allege a pattern of facts that is

well within the mainstream of

constitutional litigation, then this

court will not consider the state courts

to have had a fair opportunity to

consider the claim. However, the presence

of any one of these factors, particularly

factors (1) or (2), does not

automatically avoid a waiver; the court

must consider the specific facts of each

case.

972 F.2d at 1473-74 (quoting Pierson v.

O’Leary, 959 F.2d 1385, 1393 (7th Cir.

1992)) (quotation marks omitted). 

 The district court reached the same

conclusion we do, namely, that there was

an independent and adequate state ground

for the Illinois Supreme Court’s

decision. The district court,

nevertheless, concluded that Whitehead

avoided this bar because he met the

standards for "fair presentment" of his

claim in state court. Applying our

decision in Verdin, the district court

determined that Whitehead had fairly

presented his Fifth Amendment

prosecutorial misconduct argument by

presenting it as a legal predicate for

his Sixth Amendment ineffective

assistance of counsel claim in his postconviction proceeding, and by presenting

the state court with the facts of the

Fifth Amendment claim. Accordingly, the

district court determined that it was ap

propriate to reach the merits on habeas

review.

 The government argues that the district

court misapplied Verdin, and claims that
Whitehead did not present the operative

facts and controlling legal principles of

a constitutional claim to the state

courts. Cf. Bocian v. Godinez, 101 F.3d

465, 469 (7th Cir. 1996). In essence, the

government contends that the

constitutional claim presented in

thefederal proceeding was not the same

claim as the claim presented in the state

proceeding. In support of its application

of the "fair presentment" doctrine to the

ineffective assistance claim, however,

the district court looked to similar

holdings in the Fourth and Eighth

Circuits, where an ineffective assistance

of counsel claim was held to fairly

present an underlying constitutional

claim. See Ramdass v. Angelone, 187 F.3d

396, 409 (4th Cir. 1999), aff’d on

different grounds, 530 U.S. 156 (2000);

Odem v. Hopkins, 192 F.3d 772, 775-76

(8th Cir. 1999). The government did not

discuss these cases in its brief. 

 We need not decide whether Whitehead’s

claims of prosecutorial misconduct are

barred, since the prosecutorial comments

at issue do not result in a denial of due

process under the circumstances of this

case. First, Whitehead claims that the

prosecutor improperly commented on

Whitehead’s failure to testify. This

argument is based on several prosecution

statements. At one point, the prosecutor

stated that the jury should not "listen

to facts that have not been introduced in

evidence . . . . Unless that witness has

been sworn up there on the witness stand

you will not have had the opportunity to

observe the demeanor of the witness." In

context, these comments allegedly

implicated the petitioner, who had not

testified. Subsequently, the prosecutor

stated: "What do you have before you?

Unrebutted, undenied, uncontradicted that

the defendant both in a tape recorded

statement and a written statement

admitted [drowning] Vickie Wrobel . . . . 

Not one piece of evidence put on by

either party contradicts that." Whitehead

contends that these comments violated the

Fifth Amendment because they were

inappropriate remarks on his decision not

to testify at trial.

 Whitehead also claims that the state

improperly questioned trial counsel’s

sincerity by commenting, "[f]inally, they

present to you a defense of intoxication,

but it is as little believed by them as
it should be by you." In addition,

Whitehead argues that the prosecutor

misstated the law by suggesting to the

jury that defendant’s defenses of

intoxication and a guilty third party

were sufficient only if the jury believed

both defenses. The prosecutor had

declared that the "defense tactic is to

place a number of defenses in front of

you, because they all have to work or

none of them work. . . . They are both

contradictory and yet they have to stand

together under the defense’s theory."

 In Darden v. Wainwright, 477 U.S. 168

(1986), the Supreme Court set forth the

test for when prosecutorial misconduct at

trial is so egregious that it requires a

new trial as a matter of constitutional

law. In applying this test, we follow a

two-step course:

We first look at the comments in

isolation to determine if they were

improper. If we find the comments are

proper, the analysis ends. If we find

they are improper, we must then examine

the comments in light of the record as a

whole to determine whether the comments

deprived the defendant of a fair trial.

United States v. Whitaker, 127 F.3d 595,

606 (7th Cir. 1997). If the comments were

improper, there are then six factors

which courts must consider: 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. See Howard v. Gramley, 225 F.3d

784, 793 (7th Cir. 2000).

 In making this determination, "it is not

enough that the prosecutors’ remarks were

undesirable or even universally

condemned. . . . The 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, 477 U.S. at 181

(citation and quotation omitted). As this

court has explained, "the most important

of the Darden factors is the weight of

the evidence against the defendant."

Howard, 225 F.3d at 793. "’Strong

evidence of guilt eliminates any

lingering doubt that the prosecutor’s
remarks unfairly prejudiced the jury’s deliberations.’" Rodriguez v. Peters, 63 F.3d 546, 558

(7th Cir. 1995) (quoting United States v.

Gonzalez, 933 F.2d 417, 431-32 (7th Cir.

1991)).

 In this case, any misconduct which may

have occurred, in isolation or

cumulatively, would not meet the Darden

test for a due process violation. The

evidence against Whitehead leaves no

lingering doubts that the prosecutor’s

remarks prejudiced the jury. The Illinois

Supreme Court rightly pointed out that

Whitehead’s "numerous confessions, and

the physical evidence tying the defendant

to the scene of the murder and linking

the victim with the car in defendant’s

possession" provided overwhelming

evidence of guilt.

 Whitehead’s strongest claim is that the

prosecution improperly stated in rebuttal

that "the defense tactic is to place a

number of defenses in front of you,

because they all have to work or none of

them work. . . . They are both

contradictory and yet they have to stand

together under the defense’s theory."

Technically, this prosecutorial comment

may actually be a mischaracterization of

"the defense’s theory," rather than a

description of the law’s requirements.

But either way it could imply a false

legal standard to a juror. Whitehead

argues that a misstatement of law by a

prosecutor can invalidate a conviction,

citing United States v. Mackey, 571 F.2d

376, 384 (7th Cir. 1978). This is true.

However, this case is readily

distinguishable from the precedents

relied on in Mackey for that rule, which

involved misstatements of law that were

reinforced by the trial court, or

misstatements of law that were repeated

several times to the jury. Moreover, the

weight of the evidence against Whitehead

renders this prosecutorial statement

insignificant. We accordingly agree with

the Illinois Supreme Court on this issue.

As that court noted:

[T]he defendant’s theories of defense

were far too weak to overcome the

overwhelming evidence of his guilt: there

was no evidence to support the

defendant’s theory that he was framed by

a jealous husband, with whose wife the

defendant was having an affair, and the

defendant’s ability to drive Esther
Harmon’s automobile and successfully

navigate paths and roads from the Mazon

River to the home of Samuel Starbuck

enfeebled the intoxication defense. . . .

It should be noted also that the trial

court accurately instructed the jury on

the law regarding the defendant’s

theories of innocence.

Whitehead I, 508 N.E.2d at 696.

 In short, it is unlikely that the

prosecutor’s alleged misstatement of the

law had any impact on the jury’s

deliberations in light of the evidence

against Whitehead. Similarly, the claimed

attack on defense counsel’s sincerity

could not have had any effect in this

case. Cf. Rodriguez, 63 F.3d at 560

(reaching same conclusion where

prosecutor accused defense counsel of

being a liar). Nor do we think the

comments on the uncontradicted nature of

the government’s evidence, or the absence

of a witness for the defense, deprived

Whitehead of a fair trial in light of the

weight of the evidence. Whitehead has

failed to meet the standard set forth by

the Supreme Court in Darden./4

Accordingly, even if we assume the claims

of prosecutorial misconduct are not

barred, they are insufficient to require

the grant of habeas relief.

D. Ineffective Assistance of Counsel

 Whitehead also claims that he received

ineffective assistance of trial and

appellate counsel in the state court pro

ceedings, in violation of the Sixth and

Fourteenth Amendments. In support,

Whitehead presents several categories of

alleged failings of counsel, set forth

below.

 Whitehead’s first argument is that trial

counsel failed to effectively prepare a

defense or present evidence in support of

that defense. He contends that counsel

did not investigate or introduce

available documentary evidence to support

a defense that he was "wrongfully blamed

or framed" for the murder of Vickie

Wrobel. He also contends that the State

Crime Lab determined that pubic hair

found on the victim’s panties and a

blanket in Esther Harmon’s car were not

from Whitehead, and that trial counsel

never mentioned this evidence at

trial./5 Finally, Whitehead claims that
trial counsel failed to investigate

evidence which supposedly showed that the

shirt found in the Mazon River was not

circumstantial evidence of guilt.

 Next, Whitehead argues that trial

counsel was ineffective because he did

not call Dr. Ziporyn at trial, when Dr.

Ziporyn had prepared a report and offered

an opinion that at the time of the

offense Whitehead was incapable of

conforming his conduct to the

requirements of the law. The insanity

defense was abandoned when the trial

court informed counsel that Whitehead’s

statements to Dr. Ziporyn about prior

knife attacks on young girls could be

brought out by the prosecution on crossexamination of Dr. Ziporyn. Whitehead

claims trial counsel should have been

able to prevent such statements from

being admitted under Illinois law. In

addition, he claims ineffective

assistance because trial counsel had

promised to present an insanity defense

in his opening statement.

 Whitehead also argues that trial counsel

had been surprised when the state

tendered these materials regarding his

statements to the psychiatrist, and that

counsel should have been fully apprised

of all the materials that the state

intended to use. Furthermore, Whitehead

claims that trial counsel had already

elicited evidence of other alleged crimes

involving rape and arson during crossexamination of LeAllen Starbuck.

Therefore, he contends that the insanity

defense should not have been abandoned,

since "the damaging evidence was already

heard by the jury." Whitehead also

declares that trial counsel failed to

present a theory or evidence capable of

supporting a not-guilty verdict because

trial counsel believed that it was

conducting an insanity defense. Whitehead

contends that when the last-minute

decision to abandon an insanity defense

was made, it was too late to then call

witnesses to present evidence in support

of other defenses.

 The Supreme Court set forth the

requirements for an ineffective

assistance of counsel claim in Strickland

v. Washington, 466 U.S. 668 (1984). Under

Strickland, the petitioner must

demonstrate 1) that his counsel’s

performance was deficient, such that
under the circumstances it was

unreasonable under prevailing

professional norms, and 2) that he was

prejudiced by his counsel’s deficient

performance. As we noted in Holman v

Gilmore, "Strickland calls for inquiry

into degrees; it is a balancing rather

than a bright-line approach . . . . This

means that only a clear error in applying

Strickland’s standard would support a

writ of habeas corpus." 126 F.3d 876, 881

(7th Cir. 1997). This is because

"Strickland builds in an element of

deference to counsel’s choices in

conducting the litigation [and] sec.

2254(d)(1) adds a layer of respect for a

state court’s application of the legal

standard." Id.

 We won’t go through all of the details

of the Illinois Supreme Court’s lengthy

analysis of this issue, but we find

persuasive the Illinois Supreme Court’s

thorough and well-reasoned treatment of

Whitehead’s claims of ineffective

assistance of trial counsel. The court

rejected an argument that Whitehead’s

counsel conducted an inadequate

investigation, based on substantial

contrary evidence in the record.

Whitehead II, 662 N.E.2d at 1322. The

court determined that the insanity

defense would necessarily have made

available evidence of prior acts by

Whitehead as evidence of his state of

mind. Accordingly, it concluded that

trial counsel erred by failing to

appreciate the damage potential of Dr.

Ziporyn’s testimony, and therefore

apparently "made an error of judgment in

raising the insanity defense." See id. at

1319-20. Nevertheless, it also concluded

that trial counsel was not incompetent

based on this error, and had made a

reasonable strategic decision in

subsequently abandoning the insanity

defense. See id. at 1320. Furthermore,

the court found that trial counsel had

relied primarily on a theory that

defendant was innocent, and that trial

counsel’s theory was supported with wellargued motions and vigorous crossexamination. See id. at 1322. Most

significantly, though, the Illinois

Supreme Court concluded that the second

prong of the Strickland test was decisive

in this case. As the court noted:

What is offered by defendant pales beside

the overwhelming evidence of guilt based
on findings unaffected by error. Our

review of this record convinces us that

confidence in the outcome is not

undermined even assuming the claimed

errors. We conclude that trial counsel

was not ineffective in investigating,

presenting and arguing evidence in

support of reasonable doubt.

Id. at 1323.

We agree with the Illinois Supreme Court

and, moreover, conclude that Whitehead

has not met his burden in this court of

showing clear error. Accordingly, his

claims of ineffective assistance of trial

counsel must fail.

 Whitehead also claims that his appellate

counsel was ineffective for failing to

recognize constitutional deficiencies and

for not bringing them to the attention of

the state reviewing court. Again, the

Illinois Supreme Court found otherwise,

and Whitehead’s brief makes no argument

why this ruling was clear error. In fact,

Whitehead does not state in his appellate

briefs before this court what the errors

were which his appellate counsel in state

court made. As we have stated previously,

"[a]ppellate lawyers are clearly not

incompetent when they refuse to follow a

’kitchen sink’ approach to the issues on

appeals." Howard, 225 F.3d at 791. They

certainly do not have to present losing

arguments. Apparently, Whitehead’s

argument to the district court was that

his appellate counsel failed to present

arguments that his trial counsel was

ineffective. The district court rightly

noted that the ineffective assistance of

trial counsel argument would have failed,

and accordingly, concluded that appellate

counsel was not ineffective. We affirm

this holding.

E. One-Juror Rule

 Whitehead made the apparently reasoned

decision to avoid having his sentence

determined by the jury, which had

returned a finding of guilt in a mere

fifteen minutes. It appears, also, that

counsel for Whitehead believed the trial

judge was an outspoken opponent of

capital punishment. Nevertheless, the

sentencing judge imposed the death

penalty.

 Whitehead argues that his waiver of the
right to have a jury decide whether to

impose the death penalty was

constitutionally invalid. In Illinois,

when a jury deliberates on the

appropriateness of the death penalty at

sentencing, its decision must be

unanimous. However, if a single juror

votes against the death penalty, it

cannot be imposed. See 720 ILCS 5/9-1(g).

This rule is known as the "one-juror

rule." In contrast, if there is a single

dissenting juror in a felony trial, "the

defendant is not acquitted, but a

mistrial is declared and the prosecution

can start over with a new jury." See

People v. Hall, 499 N.E.2d 1335, 1355

(Ill. 1986) (Simon, J., dissenting)

("Hall I").

 Whitehead claims he was misled when he

opted for the judge instead of the jury

because the trial court did not explain

the way the "one-juror rule" functions.

In this case, the trial court stated,

"And those twelve people would decide

whether or not you should receive the

death penalty if they were to be your

jury. Do you understand that?" Whitehead

responded, "Yes, I do." The Illinois

Supreme Court, however, concluded that

the trial court’s instructions were not

misleading, and has previously ruled that

there is no requirement that a trial

judge provide a "specific admonition that

the decision to impose the death penalty

must be unanimous." See Whitehead I, 508

N.E.2d at 697. Accordingly, it denied

Whitehead’s claim that his waiver of a

sentencing jury was not knowingly and

intelligently made.

 We may not infer a waiver of the right

to a jury trial from a silent record, see

United States ex rel. Wandick v. Chrans,

869 F.2d 1084, 1087 (7th Cir. 1989)

(citing Carnley v. Cochran, 369 U.S. 506,

516 (1962)), but the burden is on the

defendant to show that a waiver was not

knowingly and intelligently made. See id.

(citing Adams v. United States ex rel.

McCann, 317 U.S. 269, 281 (1942)). In the

context of waiver of the right to a jury

trial, we have held that the trial judge

need not explain the ramifications of a

waiver in terms of the number of votes

required for conviction or acquittal. As

this court has noted, a constitutionally

valid waiver of the right to a jury trial

does not require the defendant, for

example, to have an "awareness of [the]
participation and substantial majority

attributes of a jury trial." Wandick, 869

F.2d at 1088. Instead, he need only have

a concrete knowledge of the right being

waived. See United States ex rel.

Williams v. DeRobertis, 715 F.2d 1174,

1180 n.3 (7th Cir. 1983). Cf. United

States v. Hill, 2001 WL 608963 (7th Cir.

2001) ("Waiver does not depend on astute

(or even rudimentary) understanding of

how rights can be employed to best

advantage. Defendants routinely plead

guilty, waiving oodles of constitutional

rights, in proceedings where the rights

are named but not explained. For example,

the judge will tell the defendant that

the plea waives the right to a jury

trial, but will not describe how juries

work, when they are apt to find a

prosecutor’s case insufficient, why the

process of formulating and giving jury

instructions creates issues for appeal,

and so on.").

 Whitehead seeks to distinguish Wandick

and DeRobertis, claiming that a defendant

will assume that the voting process is

the same for a trial jury and a

sentencing jury unless the defendant is

informed of the one-juror rule. This view

is not a novel one. See Hall I, 499

N.E.2d at 1355 (Simon, J., dissenting).

However, in Enoch v. Gramley, 70 F.3d

1490, 1506 (7th Cir. 1995), we addressed

a trial court’s instruction which stated

that the sentencing jury would have to be

unanimous in favor of the death penalty

in order to impose it (not mentioning

that the jury did not have to be

unanimous for him to avoid the death

penalty). The Enoch court held that it

was not reasonable to conclude based on

this instruction that unanimity was

required to avoid the death penalty.

Accordingly, the instruction did not

render the waiver invalid. There is no

reason to think the likelihood of

misunderstanding is greater here than it

was in Enoch.

 Whitehead presents us with no evidence

that counsel failed to advise him

regarding his choice to waive a

sentencing jury. Cf. Hall v. Washington,

106 F.3d 742, 746 (7th Cir. 1997) ("Hall

II") (the record indicated that Hall, the

defendant, had received no advice from

his counsel as to whether or not to

choose a sentencing jury; when the trial

judge sought to rectify the problem, the
defendant’s counsel only spoke to him for

forty seconds, "during which time they

told Hall simply that he had a right to

a jury at sentencing."). Nor is this a

case in which the defendant was

misinformed regarding the one-juror rule.

See id. (counsel’s explanation of jury

sentencing may have suggested to

defendant that juror unanimity was

required both to impose or reject the

death penalty); St. Pierre v. Cowan, 217

F.3d 939, 951 (7th Cir. 2000) (trial

judge’s ambiguous reference to unanimity

could reasonably imply that unanimity was

required both to impose or reject the

death penalty).

 In light of our interpretation of

Supreme Court precedent in Wandick and

DeRobertis, we conclude that the Illinois

Supreme Court’s holding was not contrary

to, or an unreasonable application of,

federal law pursuant to the requirements

set forth in Williams. The Illinois

Supreme Court’s decision can readily be

squared with clearly established Supreme

Court precedent, and under the AEDPA,

this is fatal to Whitehead’s claim.

 Although it is far from clear based on

Whitehead’s appellate briefs, it appears

that he also claims ineffective

assistance of counsel respecting his

waiver of a sentencing jury. Whitehead

points to no supporting affidavits or

evidence from the record, but seems to

claim that he received ineffective

assistance because he was not advised by

counsel of the one-juror rule. He cites

Hall II for the proposition that such a

failure constitutes ineffective

assistance. Not only does Hall II not

stand for Whitehead’s asserted

proposition, but this claim would

contradict our prior holding in this

area. See DeRobertis, 715 F.2d at 1182

(noting that "counsel does not have to

inform a client of all of the legal and

procedural knowledge which forms the

basis of his professional advice," and

concluding "we think that to the extent

that the jury selection process and the

substantial majority verdict requirement

need to enter into a defendant’s [jury

waiver] calculus, it is sufficient that

he is being advised by counsel who can be

presumed to know about such matters in

the absence of some showing of

incompetence."). Hall II involved not

only a failure to explain the one-juror
rule, but a near complete failure to

advise the defendant in his sentencing

choice, and a potentially misleading

description of the unanimity requirement

by defense counsel. See Hall II, 106 F.3d

at 753. Whitehead’s case is not

comparable to Hall II, and Whitehead

makes no effort to demonstrate that his

counsel was incompetent in advising him

regarding his waiver of a sentencing

jury, other than his apparent claim that

counsel was incompetent because he never

explained the one-juror rule. In

DeRobertis, we explained that, absent a

showing of incompetence, "we will not

postulate counsel’s ignorance of . . .

the fact that under Illinois law a

unanimous jury is required to convict . .

. ." 715 F.2d at 1182. The same reasoning

applies here. Whitehead has given us no

reason to postulate counsel’s ignorance

of the one-juror rule in this case;

indeed he does not even suggest that his

counsel was ignorant of the rule. Absent

some suggestion that counsel was

incompetent in his advice regarding

waiver, Whitehead’s claim of ineffective

assistance must fail.

III.

 In light of Whitehead’s failure to show

that the Illinois Supreme Court’s

decisions were contrary to, or an

unreasonable application of, clearly

established Supreme Court precedent, his

petition for habeas relief must be

denied. Whitehead’s inculpatory

statements were properly admitted; he was

not deprived of a fair trial before an

impartial jury; his claims of

prosecutorial misconduct and ineffective

ness of counsel fail in light of the

overwhelming evidence of guilt; and, he

failed to demonstrate an invalid waiver

of a sentencing jury or ineffectiveness

of counsel based on the trial court or

counsel’s failure to explain the onejuror rule. The district court is

AFFIRMED.

FOOTNOTES

/1 In his opening brief, Whitehead also claimed that

the failure to voir dire the jurors individually

supported his claim, but this argument was withdrawn in Whitehead’s reply brief.

/2 Whitehead also analogizes his case to Kinnamon,

in which a juror expressed concerns that the
defendant appeared to be reading juror information sheets. However, although the state trial

court in Kinnamon had ultimately granted a hearing on the issue, the Fifth Circuit did not hold

in that case that a hearing was required. Moreover, Whitehead has presented no Supreme Court

precedent that clearly establishes that a hearing

is necessary on the facts of this case. Accordingly, this claim must fail.

/3 This circuit has not yet decided what standard

for harmless error applies post-AEDPA: the test

set forth in Brecht v. Abrahamson, 507 U.S. 619,

637 (1993), which would look to whether the error

had a substantial and injurious effect or influence in determining the jury’s verdict; or the

test set forth in Chapman v. California, 386 U.S.

18 (1967), which would look to whether the jury

would have convicted Whitehead absent the error.

See Gudmanson, 252 F.3d at 905 n.4. In this case,

we reach the same conclusion under either standard. 

/4 In addition, the prosecutor’s comments do not add

up to the unusual case, suggested as a possibility by the Supreme Court, where "a deliberate and

especially egregious error of the trial type, or

one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of

the proceeding as to warrant the grant of habeas

relief, even if it did not substantially influence the jury’s verdict." See Brecht v. Abrahamson, 507 U.S. at 638 n.9. 

/5 This argument was never presented to the district

court in Whitehead’s original or first amended

petitions for habeas relief, and it is accordingly waived. See Weber v. Murphy, 15 F.3d 691, 695

(7th Cir. 1993), cert. denied, 511 U.S. 1097

(1994).