In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1892

IVORY SMITH,

Petitioner-Appellant,

v.

KEVIN L. WINTERS,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 97 C 50323—George M. Marovich, Judge.

____________

ARGUED JUNE 11, 2003—DECIDED JULY 28, 2003

____________

Before POSNER, COFFEY, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge. In 1983 Ivory Smith and his stepbrother burglarized a home occupied by an elderly woman,

who in the course of the burglary was murdered by one of

the burglars, each of whom confessed to the burglary but

claimed that the other was the killer. Both were prosecuted

and (in separate trials) were convicted of felony murder.

Smith was sentenced to 60 years in prison, the stepbrother

to life. After protracted state court proceedings, Smith filed

a petition for federal habeas corpus that the district court

dismissed on procedural grounds without reaching the

merits. This appeal ensued. The parties have briefed the
2 No. 02-1892

merits as well as the soundness of the district court’s procedural ruling.

Smith, who is black, contends that he was denied due

process of law at his criminal trial because of prosecutorial

misconduct during selection of what turned out to be an allwhite jury. He contends that during the jury voir dire the

prosecutor drew swastikas on the case files that were lying

on the counsel table in front of him and that his action was

visible to the jury; that the judge summoned both counsel to

the bench to admonish the prosecutor; and that the prosecutor said to the judge in the hearing of the jury, “Is it all right

if I draw a little old lady and a house?” There is no corroboration of these contentions, but for the moment we shall

assume that they are true.

In his state postconviction petition Smith had made the

allegations that we have just recited and had further stated

that the remark about the old lady had infringed his right to

a fair trial, but he had not stated that the display of the

swastikas had infringed his right to a fair trial. The state trial

court denied his petition and in affirming the state appellate

court said that Smith had forfeited his claim relating to the

swastikas because he had not argued that the prosecutor’s

“drawing of swastikas was prejudicial.”

In other words, the state appellate court characterized the

two factual allegations in Smith’s petition—the swastikas

and the old-lady remark—as belonging to different legal

claims, one of which the petition had failed to make and

therefore had forfeited. This is a crabbed and indeed an

unreasonable interpretation of the petition, which under the

heading “prosecutorial misconduct” states that the swastikas “were in plain view of the Jury as it was being selected,”

that the trial judge summoned counsel to the bench, and

that the prosecutor made the old-lady remark, which Smith

“believes . . . was heard by the Jury and inflammatory in
No. 02-1892 3

nature . . . [and] if the Jury heard the comment . . . it would

have so prejudiced the Jury as to deny the Defendant the

Right to a fair trial.” It seems clear that Smith was claiming

that the swastikas as well as the old-lady remark constituted

prosecutorial misconduct; the alternative interpretation, that

the swastikas were mentioned just to indicate the background to the old-lady remark, strikes us as unreasonable.

Now it is true that the application, however unreasonable

it may seem, of a state-law doctrine, here that of forfeiture,

is an error merely of state law, and a federal judge in a

habeas corpus proceeding has no authority to correct such

errors. E.g., Bobo v. Kolb, 969 F.2d 391, 399 (7th Cir. 1992);

Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000). But when

the application is so surprising, unanticipated, unprecedented, unforeseeable, and indeed freakish as not to be

foreseeable by the petitioner, its existence will not block him

from pressing his federal claims in his federal habeas corpus

proceeding. Lee v. Kemna, 534 U.S. 362, 376 (2002); NAACP

v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958); Braun v.

Powell, 227 F.3d 908, 912 (7th Cir. 2000); Cotto v. Herbert, 331

F.3d 217, 240 (2d Cir. 2003); White v. Bowersox, 206 F.3d 776,

781 (8th Cir. 2000). It will not, in the accepted formula, be

deemed an adequate state ground upon which to uphold the

state court’s judgment. It is unreasonable to hold that as a

precondition to being able to litigate constitutional claims a

prisoner must comply with a state procedural requirement

of which he lacks, and could not by the exercise of reasonable diligence have acquired, knowledge. Anyone in Smith’s

position would have assumed that a narrative of prosecutorial misconduct that included the bizarre detail of a prosecutor drawing swastikas in full view of the jury during voir

dire was a complaint about that conduct and not just about

the prosecutor’s subsequent flippant remark.

So we proceed to the merits, where we can be brief. There

are two independent grounds on which Smith must lose.
4 No. 02-1892

The first is that he has failed to substantiate his allegations

of prosecutorial misconduct. Ordinarily an affidavit alleging

matters that are both within the personal knowledge of the

affiant and germane to a vital issue creates a genuine issue

of material fact, but not where the allegations are so far

improbable as to verge on the fantastic and could if true be

corroborated but no effort at corroboration is made. Smith

should long ago have sought supporting affidavits from his

trial counsel, the trial judge, and the jurors. His failure to do

so, when coupled with the fact that the trial transcript

provides no support for his allegations, is strongly suggestive of fabrication. It is highly unlikely that a prosecutor

however unscrupulous would suppose that his cause would

be advanced by exhibiting swastikas to prospective jurors.

Nazis are not popular in Illinois and a prosecutor who

identified himself as one to jurors would be impairing

rather than promoting the likelihood of a conviction. Cf.

State v. Molasky, 655 S.W.2d 663, 670 (Mo. App. 1983).

Even if this analysis is wrong—and even if the allegations

are true—Smith must lose because the prosecutor’s misconduct could not have changed the outcome of the trial,

provided the jury was rational. Having confessed to participation in the burglary, Smith had no defense to the charge

of felony murder except intoxication, a palpable nonstarter.

We can imagine a defense of intoxication succeeding in a

case of burglary if the defendant proved he had been so

drunk that he had thought he was breaking into his own

house. See Witherspoon v. State, 671 S.W.2d 143, 144 (Tex.

Crim. App. 1984); Arroyo v. State, 564 So.2d 1153, 1155 (Fla.

App. 1990); Hamilton v. State, 324 N.E.2d 822, 823 (Ind. App.

1975); see also People v. Lee, 593 N.E.2d 800, 803 (Ill. App.

1992); People v. Parker, 343 N.E.2d 52, 54 (Ill. App. 1976). But

that is not suggested and although the defense of intoxication was raised it was virtually abandoned when the

evidence showed that although Smith had been drinking
No. 02-1892 5

and taking drugs, his actions were deliberate and his recollection of the event vivid. The jury could have acquitted

Smith only if it decided to ignore the judge’s instruction on

the elements of felony murder—which in fact Smith’s

counsel invited the jury to do. A defendant has of course no

right to ask the jury to disregard the judge’s instructions

(“jury nullification”). Sparf v. United States, 156 U.S. 51, 102

(1895); Gibbs v. VanNatta, 329 F.3d 582, 584 (7th Cir. 2003);

United States v. Bruce, 109 F.3d 323, 327 (7th Cir. 1997);

United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996). A

defense that the law he is charged with violating is a bad

law that the jury should refuse to enforce is no defense at

all.

We are mindful that a prosecutorial tactic that invokes or

relies on racial prejudice, such as striking prospective jurors

on racial grounds, is reversible error without regard to the

effect on the outcome. Batson v. Kentucky, 476 U.S. 79, 100

(1986); Vasquez v. Hillery, 474 U.S. 254, 264 (1986); Smith v.

Farley, 59 F.3d 659, 663 (7th Cir. 1995). But if the alleged

displaying of swastikas to jurors be deemed a racist tactic,

on the ground that Nazis are notoriously racist, still the

appeal to racial prejudice was too attenuated to preclude a

determination of harmless error under the normal standard,

that of Brecht v. Abramson, 507 U.S. 619 (1993), applicable

to state trial errors challenged by means of federal habeas

corpus. See Smith v. Farley, supra, 59 F.3d at 664; Thomas v.

Gilmore, 144 F.3d 513, 518 (7th Cir. 1998); Pickens v. Lockhart,

4 F.3d 1446, 1453 (8th Cir. 1993); Russell v. Collins, 944 F.2d

202, 204 n.1 (5th Cir. 1991) (per curiam); Soap v. Carter, 632

F.2d 872, 876 (10th Cir. 1980). It is not as if the prosecutor

had been wearing a white hood and singing “The Old

Rugged Cross.” Cf. Miller v. North Carolina, 583 F.2d 701 (4th

Cir. 1978); United States ex rel. Haynes v. McKendrick, 481 F.2d

152 (2d Cir. 1973). A prejudiced remark or its symbolic

equivalent is not a per se ground for reversal, as the cases
6 No. 02-1892

we have just cited show and others as well: Darden v.

Wainright, 477 U.S. 168, 179-83 (1986); Aliwoli v. Carter, 225

F.3d 826, 831 (7th Cir. 2000); Moore v. Morton, 255 F.3d

95, 114 (3d Cir. 2001). Even if as we doubt the swastika

incident actually occurred, still it was harmless so far as

the outcome of the trial was concerned.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-28-03