In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3160

DENNIS EMERSON,

Petitioner-Appellant,

v.

FRANK SHAW, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 452—Marvin E. Aspen, Judge.

ARGUED SEPTEMBER 18, 2008—DECIDED JULY 30, 2009

Before EASTERBROOK, Chief Judge, and SYKES and

TINDER, Circuit Judges.

SYKES, Circuit Judge. Dennis Emerson is serving a term

of life imprisonment after a former Illinois governor

commuted his death sentence, which stems from a

murder he committed during an armed robbery.

Emerson has petitioned for a writ of habeas corpus

under 28 U.S.C. § 2254, claiming that his counsel at his

sentencing hearing was ineffective and that he should
2 No. 07-3160

be resentenced. He argues specifically that his counsel

should have objected to the sentencing court’s response

to a question from the jury and also that his counsel

should have offered the judge a more explicit answer to

the jury’s question. On postconviction review the Illinois

Appellate Court rejected Emerson’s arguments, and on

habeas review the district court denied his petition.

We affirm.

I. Background

In 1979 Dennis Emerson and Richard Jackson, his

brother, robbed Robert Ray and Ray’s girlfriend, Delinda

Byrd, at gunpoint. Emerson and Jackson then tied the

victims’ hands and feet, and Emerson stabbed Ray twice

in the chest with a pair of scissors. Ray survived by

playing dead. According to Ray’s testimony, Emerson

then approached Byrd and brought his hands down

upon her body in a stabbing motion. Because Ray was

playing dead, he did not look directly at the strike and

therefore did not actually see Emerson stab Byrd.

Emerson and Jackson then left the room and set fire to

the building as they fled. Ray escaped, but Byrd died

from a stab wound. Emerson was charged with the

murder of Byrd, attempted murder of Ray, armed

robbery of both victims, and arson.

This case arrives here with a long and complicated

history in state and federal courts, most of which is not
No. 07-3160 3

In Emerson’s first trial, a jury convicted him on all charges, 1

and Emerson was sentenced to death. On direct appeal the

Illinois Supreme Court reversed the convictions and remanded

for a new trial. People v. Emerson, 455 N.E.2d 41 (Ill. 1983). In

1985 Emerson was retried, again convicted on all counts, and

again sentenced to death. The Illinois Supreme Court affirmed

the convictions for murder, attempted murder, and armed

robbery, affirmed the death sentence, but reversed the conviction for aggravated arson. People v. Emerson, 522 N.E.2d 1109

(Ill. 1987), cert. denied, 488 U.S. 900 (1988). The Illinois Supreme

Court also upheld the dismissal of a postconviction petition

filed in 1989. People v. Emerson, 606 N.E.2d 1123 (Ill. 1992),

cert. denied, 507 U.S. 1037 (1993).

relevant to this appeal. Emerson was convicted in Illinois 1

state court of murder, attempted murder, and armed

robbery, and he was sentenced to death. See People v.

Emerson, 606 N.E.2d 1123 (Ill. 1992), cert. denied, 507 U.S.

1037 (1993). Emerson later petitioned for a writ of

habeas corpus under 28 U.S.C. § 2254 based on a sentencing issue. The federal district court granted the

petition and required resentencing. United States ex rel.

Emerson v. Gramley, 883 F. Supp. 225 (N.D. Ill. 1995), aff’d,

91 F.3d 898 (7th Cir. 1996).

The Circuit Court of Cook County held a new sentencing

hearing, which forms the basis of this appeal. The hearing

focused on whether the State could prove a particular

aggravating factor—murder in the course of armed robbery. Emerson’s counsel maintained during closing

argument that Emerson was ineligible for the death

penalty because the State failed to prove that Emer-
4 No. 07-3160

son “actually struck the fatal blow that led to Delinda

Byrd’s death.” The court instructed the jury in relevant

part:

Before [Emerson] may be found eligible for a death

sentence under the law, the State must prove the

following propositions:

First: That [Emerson] was 18 years old or older

at the time of the commission of the

murder . . . ; and

Second: That the following statutory aggravating

factor exists:

The murdered person was killed in the

course of another felony if

The murdered person was actually killed

by [Emerson]; and

In performing the acts which caused the

death of the murdered person, [Emerson]

acted with the intent to kill the murdered

person or with the knowledge that his acts

created a strong probability of death or great

bodily harm to the murdered person; and

The other felony was armed robbery.

If you find from your consideration of all the evidence that the first and second propositions have

been proved beyond a reasonable doubt, then [Emerson] is eligible for a death sentence.

If you cannot unanimously find that both the first

and second propositions have been proved beyond a
No. 07-3160 5

reasonable doubt, then [Emerson] is not eligible for

a death sentence.

During deliberations the jury sent a note to the judge

asking, “Do we unconditionally accept the previous

judgments of guilty for murder, attempted murder and

two counts of armed robbery as fact when evaluating

this case or can we apply reasonable doubt to the prior

guilty verdicts?” The court asked the parties for input

on how it should respond. Defense counsel suggested

that the jury be instructed as follows: “You are required

to deliberate solely based on the evidence you have

heard in this case in accordance with my instructions.” The

State proposed: “You have evidence before you that

[Emerson] has been convicted of armed robbery,

attempted murder and murder. You are to consider that

evidence in the eligibility phase.” The judge instead

instructed the jury: “You have received the evidence and

jury instructions. Please continue to deliberate.” Neither

side objected to this instruction. After further deliberation,

the jury returned a finding that Emerson was eligible

for the death penalty, and the court imposed the death

sentence.

On direct appeal Emerson, represented by his sentencing counsel, argued that the sentencing court erred

by not answering the jury’s question. He claimed that

there was a “strong likelihood” that “the jury failed to

make its own determination at eligibility as to whether

defendant had actually killed Byrd because it assumed

that this issue had already been determined at trial.”

People v. Emerson, 727 N.E.2d 302, 333 (Ill. 2000). Affirming
6 No. 07-3160

Emerson’s ineffective-assistance-of-counsel claim also arrives 2

in a complicated manner. While Emerson’s postconviction

petition was pending in Illinois courts, then-Governor George

Ryan commuted Emerson’s death sentence to life in prison.

Under Illinois law, a sentence of life imprisonment is lawful

only if a jury concludes that an aggravating factor exists. See

730 ILL. COMP. STAT. 5/5-8-1(a)(1)(a) to (a)(1)(b) (capping the

sentence for first-degree murder at 60 years unless an aggravating factor is found); People v. Mata, 842 N.E.2d 686, 691 (Ill. 2005).

In light of Mata, the Illinois Supreme Court allowed Emerson

to challenge his life sentence in state court based on the jury’s

finding that the aggravating factor—murder in the course

of armed robbery—existed.

Emerson’s death sentence, the Supreme Court of Illinois

held that Emerson waived this argument by failing to

object to the court’s response or offer a substantively

different proposal. Specifically, the supreme court stated,

“[W]e are unable to discern any significant difference

between the answer suggested by defense counsel and

the answer the circuit court provided to the jury.” Id.

Emerson then sought postconviction relief in Illinois

courts, claiming ineffective assistance of counsel. The 2

Illinois Appellate Court analyzed Emerson’s claim under

the standard set forth in Strickland v. Washington, 466

U.S. 668 (1984). The court held that counsel was not

ineffective in suggesting that the judge instruct the jury

to continue to deliberate based on the court’s original

instructions, and that in any event, “there is no reasonable

probability that, absent his counsel’s errors, defendant

would not have been sentenced to death.” The
No. 07-3160 7

court therefore affirmed Emerson’s sentence. The Illinois

Supreme Court denied leave to appeal.

Emerson then filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254, which the district court denied.

Analyzing Emerson’s claim under the Antiterrorism and

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

§ 2254(d), the district court held that the Illinois Appellate

Court’s judgment was neither contrary to, nor an unreasonable application of, Strickland. Emerson appealed.

II. Discussion

Emerson is not entitled to federal habeas relief under

AEDPA unless he shows that the Illinois Appellate Court’s

decision 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. § 2254(d)(1). A state court’s decision is “contrary

to” clearly established federal law “if the state court

applies a rule different from the governing law set forth

in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of

materially indistinguishable facts.” Bell v. Cone, 535 U.S.

685, 694 (2002). A court’s decision is an “unreasonable

application” of clearly established federal law “if the

state court correctly identifies the governing legal

principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.” Id. For

Emerson to prevail on this latter prong, he must show

that the Illinois Appellate Court’s decision was “so errone-
8 No. 07-3160

ous as to be objectively unreasonable.” Badelle v. Correll,

452 F.3d 648, 654 (7th Cir. 2006). In other words, the

court’s decision must “l[ie] well outside the boundaries

of permissible differences of opinion.” Hardaway v. Young,

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

Emerson’s ineffective-assistance-of-counsel claim is

controlled by “clearly established Federal law,” namely,

the legal principles set forth in Strickland v. Washington.

Strickland’s familiar two-step process for determining

whether a counsel’s assistance fell below Sixth Amendment standards is as follows:

First, the defendant must show that counsel’s performance was deficient. This requires showing that

counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant

by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced

the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said

that the conviction or death sentence resulted from a

breakdown in the adversary process that renders

the result unreliable.

466 U.S. at 687.

Under the Strickland standard on direct review,

“[j]udicial scrutiny of counsel’s performance must be

highly deferential.” Id. at 689. “[A] court must indulge

a strong presumption that counsel’s conduct falls within
No. 07-3160 9

the wide range of reasonable professional assistance.”

Id. On habeas review the bar is even higher. Emerson

“must do more than show he would have satisfied Strickland’s test if his claim were being analyzed in the first

instance . . . . [H]e must show that the [Illinois Appellate

Court] applied Strickland to the facts of his case in an

objectively unreasonable manner.” Bell, 535 U.S. at 698-99;

see also Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir.

1997) (“Strickland builds in an element of deference to

counsel’s choices in conducting the litigation; § 2254(d)(1)

adds a layer of respect for a state court’s application of

the legal standard.”).

Emerson does not argue that the Illinois court’s decision

was “contrary to” Supreme Court precedent. He argues

instead that the Illinois court unreasonably applied Strickland in rejecting his ineffective-assistance-of-counsel

claim. We review de novo the district court’s denial of

Emerson’s petition. Julian v. Bartley, 495 F.3d 487, 491

(7th Cir. 2007).

Emerson first argues that his counsel was deficient

because he did not request that the judge clarify that the

jury was asked to determine whether the State had

proved beyond a reasonable doubt that Emerson

actually killed Byrd. In other words, while Emerson

concedes that the original instruction was legally correct,

he contends that the jury was nonetheless confused. He

argues that his counsel should have, but did not, ask the

judge to try to clear up that confusion, and that this

omission deprived him of his constitutional right to

effective assistance of counsel. The Illinois Appellate
10 No. 07-3160

Bollenbach v. United States, 326 U.S. 607 (1946), which Emerson 3

cites, is not to the contrary. In that case, the Supreme Court

reversed a conviction where the judge responded to the jury’s

questions in a manner that was “palpably erroneous.” Id. at 611.

Here, Emerson concedes that the jury instructions were accurate,

and the judge’s reference to these instructions was proper. See

Weeks, 528 U.S. at 231 (distinguishing Bollenbach on these

grounds).

Court rejected this argument. The court concluded that

the judge’s original instructions fairly encompassed

what Emerson submitted his counsel should have said.

The court further held that even if counsel were ineffective, “there is no reasonable probability that, absent

his counsel’s errors, defendant would not have been

sentenced to death.”

Under our deferential review, the Illinois court’s application of Strickland was not objectively unreasonable. We

have repeatedly held that judges are well within their

discretion to refer a jury back to the original instructions

when the jury evinces possible confusion. E.g., United

States v. Span, 170 F.3d 798, 802 (7th Cir. 1999); United States

v. Beverly, 913 F.2d 337, 351-52 (7th Cir. 1990); United States

v. Mealy, 851 F.2d 890, 901-02 (7th Cir. 1988); accord Weeks

v. Angelone, 528 U.S. 225, 234 (2000). As long as the

3

original instructions accurately and understandably state

the law, referring a jury back to those instructions can

be the most prudent course for at least two reasons. First,

jury instructions often come from pattern instructions

that have been analyzed by appellate judges in actual

cases. See, e.g., Ill. Pattern Jury Instr., Crim. 7B.06 (defining

death penalty eligibility); see also People v. Kuntu, 752
No. 07-3160 11

To the extent Emerson argues that the jury was also confused 4

about whether it had to retry Emerson on all charges, Emerson

cannot show prejudice. The jury’s finding that Emerson was

death-eligible strongly suggests that it also believed that

Emerson was guilty on the underlying counts.

N.E.2d 380, 397 (Ill. 2001) (holding that a substantially

similar verdict form correctly stated the law and clearly

required the jury to find that defendant actually killed the

victim). Deviating from these instructions creates the

needless risk of reversible error. Second, jury questions

can be ambiguous. In this case, for example, there are at

least two plausible interpretations of the jury’s question:

It is possible, as Emerson contends, that the jury was

confused over whether it had to find beyond a reasonable doubt that Emerson actually killed Byrd. Alternatively, and more likely, the jury was confused over

whether it had to retry Emerson for the underlying

crimes. No matter which interpretation is correct, directing the jury back to the correct instructions answered

both questions.4

Emerson’s attorney essentially suggested that the

judge follow this generally accepted response to jury

questions of this sort; this cannot amount to deficient

performance under Strickland. We hold that the Illinois

Appellate Court did not unreasonably apply Strickland in concluding that Emerson’s counsel was not ineffective.

We also conclude that the Illinois court did not unreasonably hold that Emerson failed to satisfy Strickland’s
12 No. 07-3160

prejudice requirement. See 466 U.S. at 687. Demonstrating

prejudice in this case requires at least two steps, and

Emerson cannot satisfy either. First, there must be a

reasonable probability that “effective” counsel could

have altered the judge’s response to the jury’s question.

Otherwise, the sentencing hearing would have played

out the same way. This is a difficult showing considering

that the jury was properly instructed and the sentencing

court properly exercised its discretion in instructing

the jury to refer back to the original instructions. Second,

and even more difficult, Emerson must show that if the

judge gave the response Emerson now suggests should

have been given, it is reasonably probable that the jury

would have found that the aggravating factor did not

exist—that is, that Emerson did not actually kill Byrd.

Ray testified that he saw Emerson approach Byrd right

after Emerson stabbed him with scissors, and also that

he saw Emerson bring his hands violently down upon

Byrd. The evidence also established that Byrd died

from stab wounds. Based on these facts, the Illinois

court’s decision regarding the lack of prejudice does not

“l[ie] well outside the boundaries of permissible differences of opinion.” Hardaway, 302 F.3d at 762. Accordingly,

Emerson’s first argument fails under either prong of

Strickland.

Emerson also makes a second, conclusory argument that

had his attorney objected to the court’s instruction, he

could have argued that the judge erred under People v.

Childs, 636 N.E.2d 534 (Ill. 1994), and the appellate court

could have required resentencing. The Illinois Appellate
No. 07-3160 13

Court rejected Emerson’s argument by concluding that

Emerson would have been sentenced to death even

absent his counsel’s error.

Childs involved a defendant on trial for armed robbery

and murder. The jury was instructed on the felonymurder rule, but the trial court did not submit a verdict

form on felony murder. During deliberations the jury

asked, “Can the defendant be guilty of armed robbery

and voluntary or involuntary manslaughter or must

murder be the only option with armed robbery?” Childs,

636 N.E.2d at 538. The judge advised the jury to continue

to deliberate. The Illinois Supreme Court noted that

under Illinois law, “[a] trial court may exercise its discretion and properly decline to answer a jury’s inquiries

where the instructions are readily understandable and

sufficiently explain the relevant law.” Id. at 539. However,

the supreme court required retrial in Childs because it

concluded that the jury’s question “manifested juror

confusion on a substantive legal issue,” that is, whether a

finding of guilt for armed robbery requires a finding

of guilt for murder under the doctrine of felony murder.

Id. at 540.

Childs does not sweep as broadly as Emerson claims;

other Illinois decisions make clear that Illinois would

uphold the sentence under the circumstances of this

case. For example, in People v. Pulliam, 680 N.E.2d 343 (Ill.

1997), which cites Childs, the jury asked the judge what

it should do if it could not reach a unanimous decision.

The Illinois Supreme Court endorsed the trial court’s

decision to refer the jury to its original instructions
14 No. 07-3160

because “the instructions given to the jury concerning

unanimity were readily understandable and sufficiently

explained the relevant law.” Id. at 355. Likewise, in People

v. McDonald, 660 N.E.2d 832 (Ill. 1995), which also cites

Childs, the jury asked the judge about the definition of

“mitigating factors.” The Illinois Supreme Court again

upheld the judge’s reference to its original instructions,

concluding, “[g]iven the clarity and sufficiency of the

instruction on mitigation, defendant suffered no prejudice

when the trial judge referred the jurors to that instruction.”

Id. at 850. Finally, in People v. Reid, 554 N.E.2d 174 (Ill.

1990), the jury asked whether it could find the defendant

guilty of one charged crime but not the other. The Illinois

Supreme Court upheld the judge’s failure to respond: “It

is apparent the [trial] court concluded that the instructions sufficiently apprised the jury of the applicable

law. Thus, under the circumstances, the [trial] court did not

abuse its discretion by referring the jury to the written

instructions.” Id. at 180.

Here, the jury was specifically instructed that it

must find that “[t]he murdered person was actually killed

by [Emerson].” Such an instruction is “readily understandable and sufficiently explain[s] the relevant law.”

Childs, 636 N.E.2d at 539; see also Kuntu, 752 N.E.2d at 397.

Accordingly, it was not unreasonable for the Illinois

Appellate Court to conclude that Emerson could not show

prejudice under Strickland even if his counsel had pre-
No. 07-3160 15

Emerson’s Childs argument in effect posits that a counsel’s 5

failure to object is per se ineffective whenever a state appellate court might have reversed on direct appeal had the

attorney preserved the argument. This theory creates an

anomalous result under Strickland and AEDPA because petitioners would face a more lenient standard on habeas

review than they faced on direct or postconviction review. Take

this case as an example. Had his attorney preserved the argument, Emerson would have obtained resentencing on direct

review in state court only by prevailing under Childs. On

habeas review, under Emerson’s theory, he should obtain

resentencing whenever there is a chance that he could have

prevailed under Childs. This cannot be correct. Moreover,

Emerson’s theory would create a perverse incentive for

counsel not to object so that either way his client would take

advantage of a more lenient standard on habeas review. Because

we conclude that the Illinois Appellate Court did not unreasonably apply Strickland’s prejudice prong, we need not reach this

issue, but simply note the anomaly that Emerson’s sweeping

proposition would create.

7-30-09

served his Childs argument.5

AFFIRMED.