In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4066

FRAZIER CROCKETT,

Petitioner-Appellant,

v.

DONALD HULICK,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 4105—William T. Hart, Judge.

____________

ARGUED MAY 6, 2008—DECIDED SEPTEMBER 8, 2008

____________

Before EASTERBROOK, Chief Judge, and WOOD and

TINDER, Circuit Judges.

TINDER, Circuit Judge. Frazier Crockett is currently

serving sentences of natural life in prison without parole

and 30 years’ imprisonment for his 1996 convictions

for two counts of first degree murder and two counts of

robbery. After unsuccessful appeals to the Illinois Appellate Court and Illinois Supreme Court, Crockett filed a

petition for a writ of habeas corpus in the Northern

District of Illinois. The court denied his petition, and he
2 No. 06-4066

filed a notice of appeal. The district court granted

Crockett’s motion for a certificate of appealability on one

issue: Were Crockett’s constitutional rights denied when

he was not timely informed that the jury had sent a

question to the trial judge during deliberations?

I. Background

Crockett’s convictions arise from the robbery and fatal

shooting of two men, Javier Guzman and Jorge Torres, in

an alley in Chicago’s Rogers Park neighborhood. Upon

Crockett’s arrest, he gave a statement to police describing

the crimes: He and James Swansey, with a gun drawn,

followed two men into an alley and demanded that the

men lie down. Swansey asked the men if they had any

money on them, but the men claimed they did not.

Crockett pointed the gun at the men while Swansey

searched them. Crockett then also searched the men and

found money in one man’s pocket. He suggested to

Swansey that they “pop” the men for lying, and Swansey

shot them both in the head.

At trial, it was undisputed that Swansey was the triggerman. Three of Crockett’s acquaintances testified for the

State that Crockett told them that he and Swansey robbed

the men and Swansey shot them. Crockett’s theory of

defense was that he was present and watched the commission of the crimes but did not participate. Crockett

testified at trial that on the night of the murders he had

been walking around with Swansey and Kenneth Henry.

(Henry was one of the State’s witnesses at trial and the

person who initially provided the tip to police that

Crockett had been involved in the crimes.) Crockett
No. 06-4066 3

The jury’s instruction on accountability included the word 1

“abet”: “A person is legally responsible for the conduct of

another person when either before or during the commission

of an offense and with the intent to promote or facilitate the

commission of the offense, he knowingly solicits, aids, abets,

agrees to aid or attempts to aid the other person in the

planning or the commission of the offense.”

claimed that he stopped to talk to a friend on the street

when Swansey and Henry followed two men into the

alley. He was attempting to catch up to Swansey and

Henry and was standing in the entrance to the alley sixty

feet away when Henry and Swansey robbed the men. He

began to run away after Swansey fired the first shot. He

later accepted “hush money” from Henry to keep quiet

about what he had witnessed. Crockett explained that his

prior statement to police implicating himself (which did

not mention Henry) was a lie to protect Henry, whom he

feared, because Henry was a drug dealer for whom

Crockett sold drugs.

During deliberations, the jury sent three notes to the

judge. The first two notes asked for a dictionary and for the

reports of police detectives. The judge directed the

sheriff to contact defense counsel by telephone about the

notes, and the court conferred with counsel about the

appropriate response. After the parties conferred, the judge

declined the jury’s requests and directed the jury to

continue deliberating. Later, the jury sent a third note to

the judge asking for a definition of the word “abet.” The 1

judge again directed the sheriff to contact defense

counsel, but for unknown reasons the sheriff either did not

contact defense counsel or was unable to reach them. The
4 No. 06-4066

judge did not respond to the jury, and the jury eventually

reached a guilty verdict. The judge did not inform

defense counsel before or after the verdict that the jury

had asked a third question.

After the trial, defense counsel discovered the third note

from the jury in the court’s case file. In a post-verdict

motion for acquittal or a new trial, defense counsel included affidavits from three jurors. All three jurors stated

that they had requested a dictionary to look up the word

“abet” but received a response from the trial judge to

keep deliberating. All three jurors stated that they later

sent a note specifically asking for the definition of “abet”

but received no response. One juror explained:

Some of the jurors sent out a note asking for the

definition of the word abet. We waited for a response but never received one. Eventually some of

the jurors came up with their own definition

because we had no legal definition. We decided

that Frazier Crockett was guilty of aiding and

abetting Kenneth Henry and James Swansey

because, while he observed the robbery and murder from 60 feet away, Frazier Crockett did

nothing to stop them, he kept the $40.00 hush

money after the fact, and he never went to the

police. The jury did not determine that Frazier

Crockett encouraged, solicited, promoted or facilitated the commission of the armed robberies

and murders.

In less detail, the other two jurors provided similar accounts of the deliberations, stating that they concluded
No. 06-4066 5

Crockett was guilty because he observed the crime and

never went to the police. The jurors made conflicting

estimates as to how much time had passed between

sending the note and reaching the verdict: one estimated

fifteen minutes, another estimated between thirty

minutes and one hour, and a third estimated one hour.

The trial court denied Crockett’s motion for a new trial.

On appeal, the Illinois Appellate Court found that the

definition of the word “abet” was central to Crockett’s

defense because if the jury “mistakenly believed that ‘abet’

could encompass less culpable behavior than the other

terms [in the jury instruction], such as being present at the

commission of a crime and doing nothing about it, the

defendant’s defense was precluded.” People v. Crockett, 731

N.E.2d 823, 835 (Ill. App. Ct. 2000). The court noted that

the jury was entitled to clarification, but Crockett shouldered the burden of demonstrating factors such as how

much time elapsed before the verdict was reached and

what attempts were made to reach counsel; if the jury

reached a verdict before the court could reasonably

answer, then there was no reversible error. Id. at 835-36.

The court concluded that Crockett failed to construct

a record that demonstrated that the trial court unreasonably delayed in responding to the jury prior to the

verdict. Id. at 836. The court found, however, that the

trial court erred in not informing Crockett after the

verdict was reached that the jury had asked a third question, but it determined that the error was harmless because

Crockett had discovered the note within a 30-day period

(in time to move for acquittal or a new trial), the argument

on the motion did not occur for several more months, and
6 No. 06-4066

Crockett also unsuccessfully challenged an evidentiary

2

ruling and the exclusion of prospective African American

jurors under Batson v. Kentucky in his appeals to the Illinois

Appellate Court and Illinois Supreme Court. Those issues

were considered and rejected again by the district court in

Crockett’s habeas petition, and the district court declined to

grant Crockett a certificate of appealability on those two issues.

he was able to obtain affidavits from three jurors. Id. The

Illinois Supreme Court denied Crockett’s petition for

leave to appeal. People v. Crockett, 738 N.E.2d 930 (Ill.

2000).2

Crockett filed a habeas petition under 28 U.S.C. § 2254

with the district court. The court noted that it does not

violate a defendant’s constitutional right to a fair trial

when a deliberating jury asks a question but reaches a

verdict before the court can reasonably respond. Crockett

contended that the situation was different where the

trial judge entirely failed to inform the defense counsel

before the verdict that the note even existed; the court

agreed the distinction could be important but found it to

be irrelevant in light of the Illinois Appellate Court’s

finding that the trial judge did attempt to contact the

defense counsel. While noting that Crockett had never

appealed the state court’s decision to place the burden

upon him, the district court inquired as to whether the

Illinois Appellate Court did so in error. The court reasoned

that if there were a constitutional error, then the Illinois

Appellate Court should have applied the harmless error

analysis of Chapman v. California, 386 U.S. 18, 24 (1967), and

placed the burden on the State. The district court con-
No. 06-4066 7

cluded, however, that it was appropriate for Crockett to

bear the burden until he established that a constitutional

violation had occurred, which he failed to do. Finally, the

court concluded that Crockett could not sustain his

burden on habeas review with respect to the Illinois

Appellate Court’s determination that it was harmless

error for the trial court to fail to tell defense counsel

about the note after the jury’s verdict.

II. Analysis

We review the district court’s findings of fact for clear

error and its legal conclusions de novo. Rizzo v. Smith, 528

F.3d 501, 505 (7th Cir. 2008). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies

to this case, Julian v. Bartley, 495 F.3d 487, 492 (7th Cir.

2007), prohibits a federal court from issuing a writ of

habeas corpus on any claim that was adjudicated on the

merits in the state court, unless it: “(1) 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; or

(2) resulted in a decision that 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).

A state court’s decision is “contrary” to clearly established federal law if the state court “reached a result

opposite to that reached by the Supreme Court on materially indistinguishable facts.” Virsnieks v. Smith, 521 F.3d

707, 713 (7th Cir. 2008). A state court’s decision is an
8 No. 06-4066

Crockett also requests that we grant his motion to supple- 3

ment the record on appeal with eleven items that were not

included in the record at the district court. Federal Rule of

(continued...)

“unreasonable application” of federal law if it identified

the proper legal principle from Supreme Court precedent

but unreasonably applied that principle to the facts of the

petitioner’s case. Rompilla v. Beard, 545 U.S. 374, 380 (2005).

“To be unreasonable, the decision must not only be incorrect, but so incorrect that it lies outside of the range of

reasonable conclusions.” Jones v. Wallace, 525 F.3d 500, 503

(7th Cir. 2008). In analyzing the reasonableness of the

state court’s decision on a factual matter, we assume that

the state court’s factual determinations are correct unless

the defendant rebuts them with clear and convincing

evidence. Mack v. McCann, 530 F.3d 523, 533 (7th Cir.

2008); 28 U.S.C. § 2254(e)(1).

Crockett’s appeal implicates both the legal and factual

components of AEDPA. He argues that: (1) the Illinois

Appellate Court erred in concluding that the trial judge

did not commit constitutional error when it failed to

notify defense counsel about the question and respond to

the jury prior to the verdict; (2) the Illinois Appellate

Court’s determination that the trial judge did not unreasonably delay in answering the jury’s question prior to

the verdict was unreasonable in light of the evidence;

and (3) the Illinois Appellate Court found that the trial

judge erred in not informing defense counsel of the note

after the verdict but applied the wrong burden analysis,

contrary to Supreme Court precedent.3
No. 06-4066 9

(...continued) 3

Appellate Procedure 10(e) permits us to allow correction or

modification of the record on appeal where items were

omitted by error or accident. Although we usually decline to

supplement the record on appeal, two of the items offered by

Crockett are helpful for context—the jurors’ affidavits and the

accountability instruction. Therefore, we GRANT his motion to

supplement the record with those two items and DENY the

motion as to the other nine items. See Ruvalcaba v. Chandler, 416

F.3d 555, 563 n.2 (7th Cir. 2005) (supplementing the record on

appeal for a habeas petition).

A. The Trial Court’s Actions Prior to the Verdict

Crockett’s legal challenge focuses upon his right to a

fair trial, his right to counsel, and his right to be present

during all stages of trial. He cites several Supreme Court

cases: Maine v. Moulton, 474 U.S. 159, 176 (1985) (holding

that “the Sixth Amendment is violated when the State

obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a

confrontation between the accused and a state agent”);

United States v. Wade, 388 U.S. 218, 236-37 (1967) (holding

that a defendant was entitled to counsel at a post-indictment lineup); United States v. Gagnon, 470 U.S. 522, 529

(1985) (holding that the “failure by a criminal defendant to

invoke his right to be present . . . at a conference which

he knows is taking place between the judge and a juror

in chambers constitutes a valid waiver of that right”);

and Rogers v. United States, 422 U.S. 35, 39-40 (1975) (holding that it was error for the trial judge to answer a jury’s

question without giving defendant’s counsel an opportunity to be heard before the trial judge responded).
10 No. 06-4066

The Illinois Appellate Court first noted that it would

have been improper for the trial judge to respond to

the jury before contacting counsel, and the trial judge

appropriately did not do so. This is consistent with the

principle set forth by the Supreme Court in Rogers. The

court then held that it is not error for a trial judge to fail to

respond to a question by the jury if the jury reaches a

decision before a response can reasonably be provided.

Crockett does not cite a case in which the Supreme

Court held the opposite on materially indistinguishable

facts to show that this decision was “contrary” to Supreme Court precedent; nor does he show that the

decision involved an “unreasonable application” through

the appellate court’s unreasonable refusal to extend a

rule to a context where it should have applied. Virsnieks,

521 F.3d at 713. In fact, he does not show that the

decision was incorrect, let alone “so incorrect that it lies

outside of the range of reasonable conclusions.” Jones, 525

F.3d at 503. Therefore, Crockett has not satisfied his

burden under AEDPA. See Rizzo, 528 F.3d at 505 (rejecting

habeas petition and noting that Rizzo claimed constitutional violations “but stop[ped] short of stating which

Supreme Court case provides clearly established

precedent for his position”); Lieberman v. Thomas, 505 F.3d

665, 672 (7th Cir. 2007) (“Nowhere in the petition does

Lieberman demonstrate how the state appellate court’s

opinion conflicts with, or unreasonably applied, relevant

Supreme Court precedent . . . .”).

Crockett’s factual challenge focuses upon the Illinois

Appellate Court’s determination that Crockett failed to

show that the trial court unreasonably delayed in inform-
No. 06-4066 11

ing defense counsel of the note prior to the verdict.

Crockett claims that the record shows the trial court did

unreasonably delay, and the Illinois Appellate Court’s

conclusion to the contrary was unreasonable in light of

the evidence. Applying the standard from Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (holding that an

error must have a substantial and injurious effect on the

verdict to entitle a petitioner to habeas relief), he claims

that the error had a substantial and injurious effect on

the jury’s verdict because the juror’s affidavits showed

that they accepted his trial testimony, which would very

likely have resulted in an acquittal if they had received

clarification on the meaning of “abet.” The district court

disagreed with Crockett, finding the Illinois Appellate

Court’s decision that the trial court did not unreasonably

delay was a reasonable determination based on the

facts in the record.

Factually, we agree with Crockett that the record shows

that the trial judge had the telephone number for the

defense counsel, the sheriff successfully contacted defense

counsel by telephone for the previous jury notes, and

defense counsel asserted that they remained available by

telephone during the time period of the third question.

Crockett argues that this demonstrates “there were

means and opportunity to tell defense counsel about the

third note . . . . However, they were not told.” The Illinois

Appellate Court’s findings of fact did not contradict

Crockett’s version of the facts—the court never claimed

that defense counsel were unavailable or had been told

about the note. However, the court accepted the trial

judge’s statement that an attempt to contact counsel was
12 No. 06-4066

made because the trial judge directed the sheriff to

call counsel, and Crockett does not provide us with clear

and convincing evidence that the judge did not give

the sheriff this direction. See 28 U.S.C. § 2254(e)(1). Armed

with that conclusion, the Illinois Appellate Court then

assessed whether the delay in responding to the jury

was unreasonable. The affidavits of the jurors show that

the trial judge received the note from the jury and did not

respond for fifteen minutes to one hour. The Illinois

Appellate Court cited several cases in which a judge did

not respond to a jury’s question: People v. Sims, 519

N.E.2d 921, 935 (Ill. App. Ct. 1987) (holding that it was not

reversible error to fail to answer the jury’s question

where the trial judge was presiding over closing arguments in a co-defendant’s case when the question was

asked and the jury reached a result before the judge could

confer with the parties); People v. Chandler, 110 A.D.2d 970,

971 (N.Y. App. Div. 1985) (holding that it was not reversible error for a trial court to fail to answer a jury’s question

for fifty minutes after which the jury returned a verdict);

People v. Hall, 101 A.D.2d 956, 957 (N.Y. App. Div. 1984)

(holding that it was reversible error for a trial court to

fail to answer a jury’s question on the burden of proof for

two hours after which the jury returned a verdict).

The court concluded that Crockett did not construct a

sufficient record to show the trial judge acted unreasonably.

Crockett notes that to the extent the reasonableness

inquiry was based upon a factual determination, the

Illinois Appellate Court did not make a finding that the

trial court acted reasonably; instead it refused to find that
No. 06-4066 13

the trial court acted unreasonably. While this is true, it

does not help Crockett in satisfying his burden under

AEDPA. The Illinois Appellate Court accepted the facts

that Crockett developed on appeal. Its decision was not

based upon an unreasonable determination of the facts

in light of the evidence; rather, its decision was based

upon the lack of evidence that would have been used as

“factors . . . in determining whether reversible error was

committed.” Crockett, 731 N.E.2d at 835. Although

initially couched as a factual argument, Crockett later

claims that the reasonableness inquiry made by the

Illinois Appellate Court was a question of law, but he

does not attempt to cite any case that would show an

unreasonable application of federal law as established by

the Supreme Court. Therefore, his petition fails on this

issue. See Lockhart v. Chandler, 446 F.3d 721, 724 (7th Cir.

2006) (“Lockhart failed to point to a relevant Supreme

Court case, [and] our own search . . . also failed to locate

such a case.”); cf. Burt v. Uchtman, 422 F.3d 557, 566 (7th

Cir. 2005) (finding that the Illinois Supreme Court unreasonably applied Supreme Court precedent from Pate v.

Robinson in determining that the trial court did not err

by accepting a guilty plea without ordering a renewed

competency hearing).

B. The Trial Court’s Actions After the Verdict

Crockett’s final argument is that the Illinois Appellate

Court made a legal error by employing the wrong burden

of proof analysis. That court noted that the trial judge

“clearly erred” by not informing defense counsel of the
14 No. 06-4066

Crockett first argues that the error was “structural error” 4

(automatically requiring reversal) because it did not occur

during the trial and hence could not be “trial error,” which the

Brecht standard addresses. We reject the notion that all errors

occurring after the verdict are structural errors, see Washington

v. Recuenco, 548 U.S. 212, 218-19 (2006) (“Only in rare cases

has this Court held that an error is structural, and thus

requires automatic reversal. In such cases, the error necessarily

renders a criminal trial fundamentally unfair or an unreliable

vehicle for determining guilt or innocence.” (internal footnote

and quotation omitted)), but we do not need to reach the

alternate question he poses: whether we should create a modified Brecht standard for the error’s effect on his ability to appeal.

jury note as soon as practicable after the verdict but held

that the error was harmless. Crockett, 731 N.E.2d at 836. The

district court stated that this factual finding was

presumed correct due to Crockett’s inability to make a

clear and convincing showing to the contrary.

Crockett argues that because the Illinois Appellate

Court concluded that the trial court made a constitutional

error, it should have applied the burden of proof from

Chapman; this would require the State, not Crockett, to

satisfy the burden of proof, and the State must prove

that the error was not just harmless error but harmless

beyond a reasonable doubt. 386 U.S. at 24. Crockett argues

that the court’s failure to apply the correct standard had

a substantial and injurious effect upon him, see Fry v.

Pliler, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (applying

a Brecht standard on habeas review where the state appellate court failed to apply Chapman) because, if the trial 4

court had informed him of the note immediately, he
No. 06-4066 15

Despite the ambiguity, Crockett assumes that the court 5

found a constitutional error but does not argue in the alternative

that the Illinois Appellate Court should have found a constitutional error but did not. Compare United States v. Widgery, 778

F.2d 325, 329 (7th Cir. 1985) (noting that in federal court “[a]

judge’s failure to show jurors’ notes to counsel and allow them

to comment before responding violates Fed. R. Crim. P. 43(a),

not the constitution”) with Moore v. Knight, 368 F.3d 936, 940-42

(7th Cir. 2004) (discussing constitutional violations and prejudice to a defendant where the trial judge answered a jury’s

question ex parte that went to the defendant’s alibi defense).

would have had the ability to obtain affidavits from

more jurors while the event was fresh in their minds. He

then could have satisfied the burden placed upon him

by the Illinois Appellate Court in showing that the trial

judge unreasonably delayed in answering the note

before the verdict.

Crockett argued to the Illinois Appellate Court that not

informing counsel of the jury note after the verdict was

constitutional error, citing People v. Childs, 636 N.E.2d 534,

538 (Ill. 1994), a case which invoked the Sixth Amendment’s right to “participate in person and by counsel at

all proceedings which involve his substantial rights.”

Although the Illinois Appellate Court determined that

the trial court “clearly erred in its failure to ultimately

notify the defendant of the jury’s question at the earliest

opportunity after the verdict” the court never explicitly

stated that it found the error to be constitutional. Crockett,

5

731 N.E.2d at 836. The court also did not address

which party had the burden of proof. The court did cite

Childs, a case that used the harmless beyond a reasonable
16 No. 06-4066

doubt standard and, as previously mentioned, invoked

the Sixth Amendment. Crockett’s brief also advised the

Illinois Appellate Court that constitutional errors require

the State to prove that the error was harmless beyond a

reasonable doubt. Nevertheless, the court’s entire statement on harmless error was:

[I]n spite of this violation of the defendant’s right

to be informed by the trial court, we must conclude that the error was harmless. The record is

clear that the defendant in fact discovered the note

before he made his motion for a new trial, which

would point to the actual discovery of this note

well within the thirty-day period following the

verdict. The record is further clear that the motion

was not argued until several months later, giving

the defendant ample time and opportunity to

investigate and make a record of the circumstances

prevailing at the time the jury question was sent.

Id. It is not clear, as Crockett contends, that the court

applied the burden of proof to him on this issue. And while

the court did not use the term “harmless beyond a reasonable doubt,” it is possible that the court was applying

the correct standard, albeit ambiguously.

Even assuming that the Illinois Appellate Court held

the error was constitutional and failed to apply the harmless beyond a reasonable doubt standard to the State,

Crockett encounters another problem—he failed to present

this claim to the Illinois Supreme Court. The district

court discussed Crockett’s procedural default of a claim

that the Illinois Appellate Court had inappropriately
No. 06-4066 17

placed the burden on him in proving that prior to the

verdict the trial court unreasonably delayed in answering

the jury’s question. The district court did not discuss

whether Crockett procedurally defaulted his after-theverdict Chapman claim because Crockett did not raise

that claim in the district court either. A procedural

default occurs where a habeas petitioner “has exhausted

his state court remedies without properly asserting his

federal claim at each level of state court review.” Malone

v. Wells, No. 06-3235, 2008 WL 3823868, at *6 (7th Cir.

Aug. 18, 2008). The exhaustion of state remedies requirement “serves the interests of federal-state comity by

giving states the first opportunity to address and correct

alleged violations of a petitioner’s federal right.” Lieberman,

505 F.3d at 669. The petitioner must fairly present the

federal nature of his claim to the state court by submitting “both the operative facts and the controlling legal

principles” of the federal claim through one full round of

review. Malone, 2008 WL 3823868 at *6 (quotation omitted).

This includes asserting the claim to the Illinois Supreme

Court for discretionary review. O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

In Crockett’s petition for leave to appeal to the Illinois

Supreme Court, the extent of his claim was that “[t]he

court was required to convene the parties and then

provide the jury with a clarifying instruction. Failure to

do so deprived the defendant of a fair jury adjudication, by

a properly instructed jury” (internal citation omitted).

He never alerted the Illinois Supreme Court that the

failure to inform him of the jury note after the trial was
18 No. 06-4066

a constitutional error to which the appellate court

applied the wrong burden of proof. A “hypertechnical

congruence” of the claims is not required between

federal and state court for a claim to be fairly presented,

Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006);

instead “we assess whether the petitioner alerted the

state court to the federal nature of his claim in a manner

sufficient to allow that court to address the issue on a

federal basis.” Lieberman, 505 F.3d at 670. Although

Crockett was aware of a heightened burden of proof

for constitutional violations because he addressed it in

his brief to the Illinois Appellate Court, he did not

inform the Illinois Supreme Court of his basis for the

claim now presented on habeas review in a manner

sufficient for the Illinois Supreme Court to address it in

the first instance. Therefore, he has procedurally

defaulted the claim. See Boerckel, 526 U.S. at 848

(“Boerckel’s amended federal habeas petition raised

three claims that he had pressed before the Appellate

Court of Illinois, but that he had not included in his

petition for leave to appeal to the Illinois Supreme

Court. . . . Boerckel’s failure to present three of his federal

habeas claims to the Illinois Supreme Court in a timely

fashion has resulted in a procedural default of those

claims.”); Bintz v. Bertrand, 403 F.3d 859, 864 (7th Cir.

2005) (“It appears that Robert did raise this issue in his

initial brief before the Wisconsin Court of Appeals. Robert,

however, never presented the [issue] to the Wisconsin

Supreme Court in his petition for that court to review the

decision of the Wisconsin Court of Appeals. While the

Wisconsin Supreme Court denied his petition for
No. 06-4066 19

review, Robert was still required to present the issue

to it.”).

When a petitioner presents a defaulted claim for

federal habeas review, we may consider it only if he can

establish cause and prejudice for the default or that the

failure to consider the claim would result in a

fundamental miscarriage of justice. Johnson v. Loftus, 518

F.3d 453, 455-56 (7th Cir. 2008). Crockett fails to argue

either point, and so we cannot consider his claim. Habeas

is an “extraordinary form of relief” to which Crockett

has not demonstrated that he is entitled. Lieberman, 505

F.3d at 671.

III. Conclusion

We AFFIRM the district court’s denial of Crockett’s

petition for habeas corpus.

9-8-08