In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2622

WILLIAM A. SANDERS,

Petitioner-Appellant,

v.

ZETTIE COTTON,

Respondent-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:02cv0778 AS—Allen Sharp, Judge.

____________

ARGUED JUNE 16, 2004—DECIDED JANUARY 31, 2005

____________

Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. William Sanders was convicted

of murder and attempted murder by an Indiana jury and

sentenced to consecutive terms of 40 and 25 years’ imprisonment, respectively. After his conviction and sentence were

affirmed on direct appeal, Sanders filed a post-conviction

petition in state court, claiming that the jury instructions

did not correctly state the burden of proof for murder, attempted murder, voluntary manslaughter, and attempted

voluntary manslaughter, and that his appellate counsel was

ineffective for not challenging on direct appeal the trial
2 No. 03-2622

court’s refusal to submit a jury instruction that would have

correctly stated the burden of proof. Sanders’s petition was

denied by the trial court and the state appellate court, and

the Supreme Court of Indiana denied his petition to

transfer.

Sanders then filed a petition for a writ of habeas corpus

in federal court pursuant to 28 U.S.C. § 2254, arguing that

his due process rights were violated when the jury instructions did not correctly state the burden of proof and that his

appellate counsel was ineffective for not challenging the

trial court’s refusal to submit a jury instruction that would

have correctly stated the burden of proof. The district court

denied Sanders’s petition, and he now appeals that decision.

We reverse.

I. Background

At the heart of Sanders’s appeal is his argument that the

jury instructions in his trial failed to properly identify the

prosecution’s burden of proving the absence of sudden heat

in order to convict him of murder and attempted murder. In

Indiana the only difference between murder and voluntary

manslaughter is the presence of sudden heat, which Indiana

defines as “anger, rage, resentment, or terror sufficient to

obscure the reason of an ordinary man; it prevents deliberation and premeditation, excludes malice, and renders a

person incapable of cool reflection.” McBroom v. State, 530

N.E.2d 725, 728 (Ind. 1988). If a defendant charged with

murder produces “any appreciable evidence” that he or she

committed the crime under sudden heat, the trial court

must give a voluntary manslaughter instruction, Roark

v. State, 573 N.E.2d 881, 882 (Ind. 1991), and the burden

shifts to the prosecution to prove the absence of sudden heat

beyond a reasonable doubt in order to obtain a conviction

for murder, see McBroom, 530 N.E.2d at 728.
No. 03-2622 3

A. Factual Background

The facts come from the record compiled in the state

court. Sanders was charged with the murder of his son and

the attempted murder of his girlfriend. On March 6, 1990,

Sanders and his girlfriend, Sharon Pratchett, took their sick

son to the hospital. While at the hospital, Sanders and

Pratchett began to argue and the argument continued as

they drove back to Pratchett’s house. At trial, Pratchett and

Sanders told conflicting descriptions of the argument.

Pratchett testified that the argument began when Sanders

accused her of embarrassing him. Although Pratchett’s testimony is not clear, it appears that Sanders was jealous

because Pratchett and another man looked at each other in

the hospital waiting room. According to Pratchett, as

Sanders’s rage escalated, he became violent, hitting her in

the face, grabbing her by the hair, and threatening to kill

her. Pratchett said she feared for her life, so she grabbed

her son and jumped from the moving car. Sanders testified

that the argument began when he told Pratchett that he

was going to leave her. Sanders said that Pratchett had

always told him that he could not leave her and be involved

in his son’s life; but that during the argument he insisted

he was taking his son. Sanders said that Pratchett then

threw their son out the window, so he began hitting her,

and that was the last thing he remembered. What is not in

dispute is that Sanders turned the car around, crossed over

into oncoming traffic where Pratchett and their son were

lying, and hit them both with the car. Pratchett was injured

and their son was killed.

B. Jury Instructions

After the evidence was presented to the jury, the trial

court instructed the jury as to the elements of murder and

attempted murder as well as the lesser-included offenses of

voluntary manslaughter and attempted voluntary man-
4 No. 03-2622

slaughter. Indiana law requires the prosecution to prove the

absence of sudden heat to obtain a murder or attempted

murder conviction when the defendant has asserted the

issue. Palmer v. State, 425 N.E.2d 640, 644 (Ind. 1981).

Nevertheless, the murder and attempted murder jury instructions did not mention sudden heat. Instead, the jury

instructions for voluntary manslaughter and attempted

voluntary manslaughter stated that the jury could convict

Sanders only if the State proved beyond a reasonable doubt

that he was “acting under sudden heat.” In other words, the

burden to prove the existence, not the absence, of sudden

heat was allocated to the State.

Sanders’s counsel proposed a jury instruction (“Proposed

Instruction Two”) that would have properly placed the

burden of proof on the State:

You are instructed that in order to find the defendant guilty of the offense of murder or attempted

murder, you must find that the state has proven the

absence of sudden heat beyond a reasonable doubt.

Sanders’s counsel, Scott King, and the trial judge discussed the propriety of this instruction:

MR. KING: One of the—I wanted to tender one

basically allocating the burden on the sudden heat.

Nowhere in there in the proposed instructions is the

jury instructed the State must prove the absence of

sudden heat beyond a reasonable doubt. It’s rather

laid out as an element they must prove for the

offense of voluntary or attempted voluntary manslaughter. The case law is that it is a mitigating

circumstance.

TRIAL COURT: It’s an interesting conflict in the

case law. First they say it’s an element of the offense, and then in another case, they say it’s merely

a mitigating factor, and the State is not under an

obligation to prove it is an element; and, of course,
No. 03-2622 5

1 Sanders’s petition was initially denied on the basis of laches and

the appellate court affirmed, but the Supreme Court of Indiana

reversed that decision and remanded the case to the trial court.

All subsequent references to the state court’s determinations of

Sanders’s post-conviction petition will refer to the decisions on

remand. 

I try to follow everybody up there in the Third

District, Fourth District in the Supreme Court. I do

not believe that the burden is upon the State. This

is my best guess today, it’s my best guess knowing

the authorities on both sides, to resolve the conflict

that the State does not have the burden of disproving sudden heat.

C. Sanders’s Post-Conviction Proceedings

On direct appeal, Sanders’s counsel, Scott King, did not

challenge the trial court’s failure to properly instruct the

jury. Sanders filed a post-conviction petition raising, among

other issues, the trial court’s failure to give Proposed

Instruction Two, the incorrect burden of proof stated in the

manslaughter instructions, and his appellate counsel’s

ineffectiveness for failing to argue both issues on direct

appeal.1

 The trial court held an evidentiary hearing where

King testified that he could not remember why he did not

include an argument challenging the jury instructions’

misstatement of the burden of proof for sudden heat.

The trial court analyzed Sanders’s claims under the standard of fundamental error, which Indiana defines as “when

errors are so blatant and serious that to ignore them would

constitute a denial of fundamental due process.” The trial

court acknowledged that the manslaughter instructions

tendered to the jury were erroneous because the instructions incorrectly listed the presence of sudden heat as an

element of voluntary manslaughter and attempted volun-
6 No. 03-2622

tary manslaughter. However, the trial court, relying on

Indiana state law precedent, found that the error was

harmless because the instruction told the jury that “[t]he

existence of sudden heat is a mitigating factor that reduces

what otherwise would be murder under this chapter to voluntary manslaughter.” The court found that Proposed

Instruction Two, allocating the burden to prove absence of

sudden heat to the State as an element of murder, was an

incorrect statement of the law, so the trial court correctly

excluded it. Finally, despite its explicit statement that the

instruction was erroneous, the court held that Sanders’s

counsel could not have been ineffective because “the jury

was adequately instructed on voluntary manslaughter, and

thus, the defendant was not prejudiced by counsel’s faulty

instruction.”

Sanders appealed the denial of his post-conviction petition to the Court of Appeals of Indiana. The appellate court

agreed with the trial court’s finding that the voluntary

manslaughter instructions were erroneous, but found the

error harmless because the jury instructions “also informed

the jury that sudden heat is a mitigating factor.” Therefore,

the court found that “the trial court did not abuse its

discretion in refusing to give the trial counsel’s tendered

instruction because the instructions were correct and adequately instructed the jury on voluntary manslaughter.”

The appellate court also agreed that Sanders’s appellate

counsel was not ineffective since there could be no prejudice

because the jury instructions, when read as a whole, did

“not constitute fundamental error.” The Supreme Court of

Indiana denied review.

II. Discussion

We review the district court’s factual findings for clear

error and legal conclusions de novo. Harding v. Walls, 300

F.3d 824, 827 (7th Cir. 2002). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), to obtain
No. 03-2622 7

habeas corpus relief, a petitioner must establish that the

proceedings in state court resulted in a decision (1) “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) “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). The relevant decision for purposes of this assessment is the decision of the last state court to rule on the

merits of the petitioner’s claim. See McFowler v. Jaimet,

349 F.3d 436, 446 (7th Cir. 2003).

A. Due Process Claim

Sanders first argues that his due process rights were violated when the state court failed to instruct the jury that

the State had to prove the absence of sudden heat beyond

a reasonable doubt before it could convict him of murder or

attempted murder. Respondent argues that Sanders has

procedurally defaulted this claim because, on review of the

denial of the post-conviction petition, the Court of Appeals

of Indiana found the issue waived.

1. Procedural Default: Independent and Adequate

State Law Grounds

We will not consider a petitioner’s claim under federal law

if we determine that “the state court decision rests on a

state procedural ground that is independent of the federal

question and adequate to support the judgment.” Page v.

Frank, 343 F.3d 901, 905 (7th Cir. 2003). The Indiana appellate court analyzed Sanders’s claim under the fundamental error standard, which “permits a reviewing court to

consider the merits of an improperly raised error if the

reviewing court finds that the error was so prejudicial to the

rights of the appellant that he could not have had a fair
8 No. 03-2622

trial.” However, under Harris v. Reed, 489 U.S. 255, 263-65

(1989), only an explicit invocation of a state procedural bar

blocks federal consideration of an issue.

Here, the language in the state court’s opinion is not explicit. The Court of Appeals of Indiana recited that “[i]f an

issue was available on direct appeal but not litigated, it is

waived.” But instead of following that observation with a

conclusion such as “and Sanders’ claims are waived under

that standard,” the court immediately proceeded to address

and decide the merits. See, e.g., Moore v. Bryant, 295 F.3d

771, 774-75 (7th Cir. 2002). Notably, the appellate court

applied waiver to Sanders’s claim that the trial court failed

to properly instruct the jury that the State had to prove

that Sanders had the specific intent to kill to convict him of

attempted murder, but failed to apply the procedural bar to

the rest of Sanders’s claims.

We have held that if the decision of the state court “fairly

appears to rest primarily on the resolution of those claims,

or to be interwoven with those claims, and does not clearly

and expressly rely on the procedural default, we may

conclude that there is no independent and adequate state

ground and proceed to hear the federal claims.” Page, 343

F.3d at 907. Here, the Indiana appellate court never applied

the doctrine of waiver to the claims Sanders raised in his

habeas corpus petition and the court concluded that

Sanders’s claims failed on the merits. Because the appellate

court’s discussion of waiver is intertwined with its merits

analysis of Sanders’s claims, the state court’s decision does

not rest on an independent and adequate state law ground.

See Harris, 489 U.S. at 266; Moore, 295 F.3d at 774-75.

In any event, a procedural default can be overcome if a

petitioner can show cause and prejudice for the default, Lee

v. Davis, 328 F.3d 896, 900 (7th Cir. 2003), and “attorney error

that constitutes ineffective assistance of counsel is cause to

set aside a procedural default,” Franklin v. Gilmore, 188
No. 03-2622 9

F.3d 877, 883 (7th Cir. 1999). Any default of Sanders’s due

process claim was caused by his appellate counsel’s failure

to raise the issue on direct appeal, and, as we discuss in

Section II-B of this order, Sanders’s counsel was constitutionally ineffective for not challenging the trial court’s refusal to properly instruct the jury that the State bears the

burden to prove the absence of sudden heat to obtain a

murder or attempted murder conviction.

2. Procedural Default: Fair Presentment

Next, the Respondent argues that Sanders procedurally

defaulted his claim because he solely relied on Indiana state

law, which does not implicate a cognizable federal claim upon

which habeas relief could be granted. Petitioners are

required to “fairly present their federal claims to the state

courts in order to give the State the opportunity to pass

upon and correct alleged violations of its prisoners’ federal

rights.” Hough v. Anderson, 272 F.3d 878, 892 (7th Cir.

2001) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).

We have held that fair presentment requires a petitioner

to put forward operative facts and controlling legal principles. Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004).

Whether he has done so depends on several factors, including: “(1) whether the petitioner relied on federal cases that

engage in constitutional analysis; (2) whether the petitioner

relied on state cases which apply a constitutional analysis

to similar facts; (3) whether the petitioner framed the claim

in terms so particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged a

pattern of facts that is well within the mainstream of

constitutional litigation.” Id.

In Sanders’s appeal to the Court of Appeals of Indiana, he

alleged a “due process” violation and argued that “if the jury

makes its decision without knowing that to convict on

murder it must find beyond a reasonable doubt that sudden
10 No. 03-2622

heat was absent then in effect there is no jury finding on

the question of the presence or absence of sudden heat.” To

support his argument, Sanders cited Sullivan v. Louisiana,

508 U.S. 275, 277-78 (1993), in which the Supreme Court

held that it is a due process violation if the court offers a

defective jury instruction on reasonable doubt.

Although Sanders is not challenging the jury instruction

defining reasonable doubt, it is clear that he was attempting to raise a constitutional complaint about the failure of

the jury instructions to require the jury to find the absence

of sudden heat beyond a reasonable doubt before convicting

him of murder and attempted murder. See Sweeney, 361

F.3d at 332 (finding that petitioner had fairly presented a

federal ineffective assistance of counsel claim when he cited

the Sixth Amendment and Strickland v. Washington, 466

U.S. 668 (1984) to the state court). Because Sanders’s brief

to the state appellate court applied the Supreme Court’s

due process analysis to his jury instruction challenge and

provided a citation to a case that would have “alerted the

court to the alleged federal nature of the claim,” he fairly

presented his federal constitutional claim to the Indiana

state courts. See Baldwin v. Reese, 541 U.S. 27, 124 S. Ct.

1347, 1351 (2004); see Chambers v. McCaughtry, 264 F.3d

732, 738 (7th Cir. 2001).

3. Merits of Sanders’s Due Process Claim

With the waiver and fair presentment issues resolved, we

now address the merits of Sanders’s due process claim.

Sanders contends that the trial court’s refusal to instruct

the jury as to the State’s burden of proving the element of

the absence of sudden heat violates his federal due process

rights because the jury could have convicted him of murder

and attempted murder without finding that the State proved

each element of the crime beyond a reasonable doubt.

Sanders also challenges the erroneous manslaughter in-
No. 03-2622 11

structions that included the presence of sudden heat as an

element.

Indiana law, currently and at the time of Sanders’s trial,

requires the prosecution to prove the absence of sudden

heat to convict a defendant of murder or attempted murder

once the defendant has introduced some evidence that he or

she committed the crime under sudden heat. McBroom, 530

N.E.2d at 728. Three years before Sanders’s trial, the

Supreme Court of Indiana held that if the jury instruction

on murder did not include an element requiring the prosecution to prove the absence of sudden heat and the trial

court refused a proposed jury instruction that explains that

the State must negate the presence of sudden heat beyond

a reasonable doubt, then the trial court committed reversible error, necessitating a new trial. Harrington v. State,

516 N.E.2d 65, 66 (Ind. 1987). The Indiana courts have held

that the “action of the trial court in refusing the tendered

instruction left the jury without any instruction as to who

bore the burden of proof concerning sudden heat or the absence thereof.” Joshua v. State, 553 N.E.2d 1202, 1203 (Ind.

1990). Without the proper instructions, the jury “may have

believed [the defendant] had to prove he acted in sudden

heat,” rather than that “the State had to negate its existence.” Harrington, 516 N.E.2d at 66.

In Sanders’s case, the Indiana appellate court held that

any error in the manslaughter instruction was rendered

harmless by the instruction that “sudden heat is a mitigating circumstance that reduces what otherwise would be murder . . . to voluntary manslaughter.” The appellate court’s

analysis was incomplete, though, because it did not address

Sanders’s argument that without Proposed Instruction Two

the jury would have no reason to know that the absence of

sudden heat was an element of murder and attempted murder that the State was required to prove beyond a reasonable doubt.
12 No. 03-2622

The Supreme Court of the United States has held that

“the Due Process clause protects the accused against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he

is charged,” In re Winship, 397 U.S. 358, 364 (1970), and

“requires the prosecution to prove beyond a reasonable

doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide

case,” Mullaney v. Wilbur, 421 U.S. 684, 704 (1975). We

have explained that “the complete failure to give any jury

instruction on an essential element of the offense charged,

under circumstances indicating that the jury was not

otherwise informed of the necessity of proof of the element,

is a violation of due process.” Cole v. Young, 817 F.2d 412,

423 (7th Cir. 1987).

Here, the jury instructions do not contain any statement

that properly places the burden of proof on the State for

showing the absence of sudden heat to gain a murder conviction. Rather, the only time the jury instructions mention

the burden of proof for sudden heat is in the manslaughter

instructions, where they erroneously require the State to

prove the presence of sudden heat. Without Proposed

Instruction Two, the jury was never informed of each of the

required elements of the government’s proof for murder and

attempted murder, and if the jury was not required to find

Sanders guilty beyond a reasonable doubt on all the elements of murder and attempted murder, he did not receive

the protections of federal due process. The Indiana appellate

court’s reliance on the manslaughter instructions’ mitigation

language to correct the erroneous instructions was unreasonable because advising the jury that sudden heat is a

mitigating factor does nothing to inform it that the absence

of sudden heat is an element of murder or attempted

murder and that it is the prosecution that bears the burden

of proof.
No. 03-2622 13

The Respondent argues that the Indiana appellate court

made a reasonable determination that the erroneous instructions, when read as a whole with the other instructions,

fully apprised the jury that under Indiana law, sudden heat

is a factor that could reduce murder to manslaughter.

Instructing the jury that sudden heat is a mitigating factor

did not inform them that it was something that the State

had to disprove, rather they were left “ignorant of which

side bore the burden of proof.” Harrington, 516 N.E.2d at 66.

It is just as reasonable for someone to assume that acting

under sudden heat is like the affirmative defense of insanity, where the burden of proof is on the defendant. See

Thompson v. State, 804 N.E.2d 1146, 1148 (Ind. 2004). The

jury instructions not only failed to properly state the burden

of proof, but affirmatively misstated it when the manslaughter instructions included the element of proving the

existence of sudden heat.

The Respondent also argues that any error in the jury

instructions was harmless because Sanders was not entitled

to the manslaughter instructions. However, the Respondent

did not make this argument in the district court, so it is

waived. Jenkins v. Nelson, 157 F.3d 485, 494 n.1 (7th Cir.

1998). While we can overlook the Respondent’s failure to

argue harmless error, we generally do so only when the

“harmlessness of the error or errors found is certain” and “a

reversal would result in protracted, costly, and ultimately

futile proceedings in the district court.” United States v.

Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991). Even if the

Respondent had not waived its harmlessness argument, the

argument would fail because the jury heard testimony that

Sanders was provoked into a sudden rage when Pratchett

flirted with another and, if you believe Sanders’s testimony,

when Pratchett threw their son out the car window.

Compare Baird v. State, 604 N.E.2d 1170, 1178 (Ind. 1992)

(bank foreclosing on family farm was not sufficient provocation to warrant a jury instruction on sudden heat in defen-
14 No. 03-2622

dant’s murder of his wife); Gregory v. State, 540 N.E.2d 585,

593 (Ind. 1989) (holding that jury could reasonably have

rejected defendant’s claim of sudden heat when he had

threatened to kill the victim three weeks earlier); with

Jimmerson v. State, 751 N.E.2d 719, 725 (Ind. App. Ct.

2001) (affirming voluntary manslaughter conviction because

jury reasonably found defendant was acting under sudden

heat after he was forced to give victim money 20 minutes

before he confronted victim and shot him); Callis v. State,

684 N.E.2d 233, 240 (Ind. 1997) (affirming voluntary

manslaughter conviction because jury reasonably found

defendant was acting under sudden heat when he shot his

girlfriend after she threatened suicide and they quarreled

about the state of their relationship). Because a defendant

is entitled to a voluntary manslaughter instruction if he

presents any appreciable evidence of sudden heat, the trial

court’s failure to instruct the jury as to the State’s burden

was not harmless error.

Because the jury was never instructed that the absence of

sudden heat was an element of murder and attempted

murder that the State had to prove beyond a reasonable

doubt, Sanders has established a violation of his federal due

process rights. The Indiana appellate court’s determination

that the jury instructions as a whole correctly apprised the

jury of all the elements of the crimes was an unreasonable

determination because the jury was never informed that the

absence of sudden heat is an element of murder and

attempted murder on which the State bears the burden of

proof and, in fact, was incorrectly instructed that the State

had to prove beyond a reasonable doubt the presence of

sudden heat to obtain a voluntary manslaughter conviction.

Accordingly, we reverse the district court’s denial of

Sanders’s petition on the grounds of a federal due process

violation.

B. Ineffective Assistance of Counsel

Sanders next argues that the Indiana state courts unreasonably determined that his appellate counsel was not
No. 03-2622 15

ineffective for failing to argue on direct appeal that the trial

court erred by refusing to instruct the jury that the State

must prove the absence of sudden heat beyond a reasonable

doubt to prove murder and attempted murder. Sanders also

claims that his appellate counsel was ineffective for failing

to challenge the trial court’s instruction making sudden

heat an element of voluntary manslaughter and attempted

voluntary manslaughter and requiring the State to prove its

presence beyond a reasonable doubt. Sanders argues that

Indiana case law would have required reversal and a new

trial had these issues been raised on direct appeal.

First, the Respondent correctly notes that Sanders’s challenge to counsel’s failure to challenge the voluntary manslaughter and attempted voluntary manslaughter instructions were not raised in the district court. Because we will

not consider issues raised for the first time on appeal, see

Perry v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000),

Sanders waived his challenge to the manslaughter instructions. Therefore, the only basis for ineffective assistance of

counsel properly before us is whether Sanders’s appellate

counsel was ineffective for not challenging the trial court’s

refusal to tender Proposed Instruction Two.

1. Standard for Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution

guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

686 (1984). A successful claim of ineffective assistance of

counsel under Strickland requires the petitioner to make

two showings. First, the petitioner must show that counsel’s

performance fell below an objective standard of reasonableness as determined by prevailing professional norms. Id. at

687-88. Second, the petitioner must show that the deficient

performance of counsel prejudiced his defense. Id. at 687.

Prejudice will be found when there is a reasonable probabil-
16 No. 03-2622

ity that, but for the deficient performance of counsel, the

outcome of the proceeding would have been different. Id. at

694. A reasonable probability is a probability sufficient to

undermine confidence in the outcome of the proceedings. Id.

2. State Court Determination

The district court adopted the determination of the Indiana

state courts on Sanders’s ineffective assistance claim without much explanation. The last Indiana court to rule on the

merits of Sanders’s claim was the post-conviction trial court,

so this court reviews its determination. See McFowler, 349

F.3d at 446. The trial court found, without explanation or

citation, that “Defendant’s Tendered Instruction No. 2 was

a misstatement of the law and the trial court did not

commit error by refusing to give the instruction to the jury.”

The trial court concluded that “counsel’s offer of a [sic]

inaccurate instruction . . . does not constitute ineffective

assistance of counsel because the jury was adequately

instructed on voluntary manslaughter, and thus, the

defendant was not prejudiced by counsel’s faulty instructions.”

3. Appellate Counsel’s Performance was Prejudi

cial

Under 28 U.S.C. § 2254(d)(2), habeas corpus relief may be

granted if the petitioner shows that, despite identifying the

correct rule of law, the state court unreasonably applied it

to the facts of the case. Williams v. Taylor, 529 U.S. 362,

385 (2000). Under § 2254(e)(1), habeas corpus relief may be

had where the petitioner can show by clear and convincing

evidence that the state court’s factual determinations were

unreasonable.

First, the state court found, without explanation, that

Sanders’s Proposed Instruction Two was an incorrect state-
No. 03-2622 17

ment of the law. However, both Indiana law, Palmer, 425

N.E.2d at 644, and federal law, Mullaney, 421 U.S. at 704,

require the prosecution to prove the absence of sudden heat

once the issue is raised by evidence in the record. Sanders’s

Proposed Instruction Two correctly stated this proposition,

and nowhere else in the jury instructions was the jury

informed that the prosecution bore the burden of proving

the absence of sudden heat to obtain a conviction for

murder or attempted murder. Thus, the state court’s finding

that Sanders’s Proposed Instruction Two was a misstatement of the law is an unreasonable determination of the

facts, which does not warrant any deference from this court.

See Moore v. Knight, 368 F.3d 936, 942 (7th Cir. 2004).

Second, although the post-conviction trial court identified

the proper standard for evaluating Sanders’s ineffective

assistance of counsel claim, it unreasonably applied the law

to the facts of this case. Indiana law requires reversal and

a new trial if the trial court rejects a proposed jury instruction that allocates the burden of proving the absence of

sudden heat for a murder or attempted murder conviction.

Harrington, 516 N.E.2d at 66 (finding that without the

burden-of-proof instruction, the jury “resolved the issue but

did so ignorant of which side bore the burden of proof”). If

Sanders’s counsel had raised this issue on direct appeal, the

appellate court would have been bound by law to grant him

a new trial. Because “the issue not raised may have resulted in a reversal of the conviction or an order for a new

trial,” Lee, 328 F.3d at 901, Sanders has established that

his counsel’s failure to challenge the Proposed Instruction

Two was prejudicial.

4. Appellate Counsel’s Performance was Deficient

But Sanders must also establish that his counsel’s

performance fell below an objective standard of reasonableness to satisfy the requirements of the Strickland test for
18 No. 03-2622

showing his appellate counsel was constitutionally ineffective. The failure of appellate counsel to raise an issue on

appeal requires the court to compare the issue not raised in

relation to the issues that were raised; if the issue that was

not raised is “both obvious and clearly stronger” than the

issues raised, the appellate counsel’s failure to raise the

neglected issue is objectively deficient. Lee, 328 F.3d at 900-

01.

On direct appeal, Sanders’s counsel raised three issues:

(1) the trial court erred in instructing the jury as to the

doctrine of transferred intent; (2) the trial court erred in

admitting evidence of Sanders’s prior bad acts; and (3) the

trial court abused its discretion by sentencing Sanders to

serve consecutive prison terms. Sanders’s challenge to the

trial court’s imposition of consecutive sentences is clearly

weaker than his challenge to the trial court’s rejection of

Proposed Instruction Two. In Indiana, a trial court has wide

discretion to impose consecutive sentences and an appellate

court will reverse the imposition of consecutive sentences

only when “no reasonable person could find such sentence

appropriate to the particular offense and offender for which

such sentence was imposed.” Steele v. State, 569 N.E.2d

652, 653 (Ind. 1991). Furthermore, while the two other

issues counsel raised are not as weak as the consecutive

sentence challenge, neither argument relied on controlling

Indiana precedent that would have warranted a new trial,

unlike the trial court’s failure to properly instruct the jury

on sudden heat. Therefore, we find that Sanders’s counsel

was ineffective for not raising a challenge to the trial court’s

rejection of the Proposed Instruction Two because it was an

obvious and stronger argument than the arguments he

made, and there is a reasonable probability that had he

made the argument, the appellate court would have ordered

a new trial. See Lee, 328 F.3d at 901-02; Winters v. Miller,

274 F.3d 1161, 1167-68 (7th Cir. 2001).
No. 03-2622 19

III. Conclusion

Because Sanders’s federal rights to due process and effective assistance of appellate counsel were violated, we

REVERSE the district court’s denial of Sanders’s habeas

corpus petition and REMAND with directions to grant the

writ unless the State elects to retry Sanders.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-31-05