Garth, Faraji O. v. Davis, Cecil ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3084
FARAJI OMAR GARTH,
Petitioner-Appellee,
v.
CECIL DAVIS, Superintendent
of the Indiana State Prison,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 04 C 595—Allen Sharp, Judge.
____________
ARGUED FEBRUARY 21, 2006—DECIDED DECEMBER 11, 2006
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Faraji Omar Garth (“Garth”) was
convicted of robbery and of being an accomplice to at-
tempted murder. The State alleged that Garth and his
brother, Ahman Garth (“Ahman”), along with two others,
robbed a convenience store and attempted to kill the clerk.
After his conviction was affirmed on direct appeal, Garth
filed a petition for relief in federal court under 28 U.S.C.
§ 2254 claiming that the jury instruction given at the
state trial, regarding attempted murder, violated due
process. The district court granted Garth’s petition. We
believe that § 2254 relief was improvidently granted, and
therefore, reverse.
2 No. 05-3084
I. HISTORY
A. State’s Evidence
At Garth’s trial, the State presented evidence support-
ing the following facts. Late in the evening on August 21,
1997, Garth, his brother Ahman, and two other men
entered the convenience store of a gas station in Evans-
ville, Indiana. Garth frequently came to this store so the
employee on duty, James Hardy, recognized him as a
customer. But Garth and his cohorts had no intention of
buying anything this night. As Hardy later testified to
at Garth’s trial, Ahman quickly brandished a gun and
attempted to rob the store. A car pulling into the parking
lot startled the robbers and Ahman ordered Hardy to turn
the store’s lights off at the circuit breaker. To show that
he meant business, Ahman hit Hardy in the back of the
head with the gun. Hardy got the message and disengaged
the circuit breaker. The lights went off, but an unintended
consequence was that Hardy could no longer open the
electronic cash register.
As Hardy testified to at trial, Ahman then forced Hardy
into a back room, believing a safe was there. While in that
room, Ahman again hit Hardy with the gun, knocking him
unconscious. Hardy awoke to the men punching and
kicking him. Hardy testified that Garth was one of the
men beating him, but also said he could not be sure. Hardy
then testified that Ahman forced him into a chair, put
the gun to his head and pulled the trigger. The gun did
not fire. Twice Ahman removed the gun’s magazine,
banged it on a table, placed it back into the gun, and tried
to shoot Hardy in the head. Fortunately, the gun would
not fire. After the third pull of the trigger, the police
arrived and the robbers fled. Ahman was quickly arrested
in front of the store after dropping his gun, which was
recovered. Garth got away but was later arrested and
identified by Hardy.
No. 05-3084 3
Part of the State’s evidence was Garth’s testimony at
the earlier trial of codefendant Leo Johnson. At Johnson’s
trial, as the jury in Garth’s trial heard, Garth admitted
that he planned to rob the convenience store along with his
brother and two other persons. At Johnson’s trial, Garth
also admitted that Ahman pointed a gun at Hardy’s head.
B. Defendant’s Testimony
Garth testified at trial, and his testimony is essential to
our resolution of this appeal. Therefore, we will recite it
in detail, including all references to his intent the night
of the crime, as well as all references to any attempt to
kill Hardy. To begin, his testimony at Johnson’s trial
provided some difficulties for Garth because he now
wanted to say that Ahman did not point a gun at Hardy’s
head. He explained to the jury that when he testified at
Johnson’s trial he lied in part in the hope of pleasing the
State and garnering a deal.1 He further explained that a
portion of his testimony regarding Ahman attempting to
kill Hardy was a lie. According to Garth:
So upon testifying, I gave them the statement that
said my brother did point the gun at the witness, and
that is untrue.
1
The State and Garth discussed a plea deal, but it is clear that
the testimony at Johnson’s trial was not part of it. Garth told his
jury that the State rejected his deal, “even though [Garth] had
already gave them, basically, what they wanted.” S.C.R. at 625.
But apparently the State did not want Garth to testify on behalf
of Johnson—not at the request of the State—and to the effect
that Johnson was in no way involved with the robbery. The
State maintained that Johnson was part of the robbery and
attempted murder. It appears the State withdrew any plea deal
because of Garth’s testimony at Johnson’s trial, which the State
believed to be false.
4 No. 05-3084
S.C.R. at 625.
After further testimony about why Garth lied under
oath, Garth and his attorney engaged in the following
colloquy:
Q: Did you ever . . . were you present in a back room
at a time when Ahman . . . was pointing and clicking
a gun at Mr. Hardy’s head?
A: I testified that I was, but in truth, it never hap-
pened. My brother never tried to kill that man.
Q: Is there anything else that you would like to tell the
Court, and the jury, or us at this time?
A: I’ll admit that I was there, and I did agree to rob
the store with my brother and two friends of mine,
that I was there when money was taken, and I was
there when the witness was attacked, but I didn’t lay
my hands on that man, and also, my brother didn’t try
to kill that man. What that man’s saying is not true.
S.C.R. at 626-27. This concluded Garth’s testimony on
direct.
On cross-examination, the State began by attacking
Garth’s credibility, and confirming Garth’s admission that
he, Ahman, and two others robbed the convenience store.
Garth also admitted that he would be easily recognized by
Hardy:
Q: In fact, James Hardy, the clerk that night, had
waited on you many, many times, isn’t that true?
A: Yes. It is.
Q: So many times that you could recognize him, and he
could recognize you, isn’t that true?
A: Yes. He could. And yes. I could.
S.C.R. at 633. The cross-examination then turned to
Ahman’s use of a gun:
No. 05-3084 5
Q: You testified in the Leo Johnson trial that before
you went to rob the store, you knew your brother,
Ahman, had a gun, isn’t that true?
A: Yes. I did.
...
Q: In fact, you were shown . . . Exhibit 8?
A: Yes. Just like that. Yes.
Q: You identified [Exhibit 8] as the gun your brother
had, at that trial, true?
A: Yes. It was.
Q: You knew your brother, Ahman, was bringing the
weapon into the store before you committed the
robbery, isn’t that true?
A: Yes. He did tell me he had a gun.
Q: And once inside the store, you did see your brother
holding the gun, didn’t you sir?
A: Yes. I did.
Q: And in fact, once inside the store, you saw him
displaying the gun throughout the store, isn’t that
true?
A: No. I testified that he did, but he pointed it to him,
and told him to get into the back. That was the only
time he pointed a gun at that man.
Q: I couldn’t hear you. What’s that?
A: The only time he pointed the gun at that man was
when he told him to get into the back. That was all. It
was basically around his waist area.
Q: So you’re admitting to this jury, today, that you saw
your brother point the gun at James Hardy, isn’t that
correct?
6 No. 05-3084
A: Yes. He did point the gun at him, or in his general
direction.
Q: And in fact, sir, isn’t it true that you saw him point
it at James Hardy’s head in the back room?
A: No. It is not true.
S.C.R. at 635-37. The State then impeached Garth with
his testimony at Johnson’s trial where Garth related that
he saw the gun pointed at Hardy’s head. When asked why
he made that statement, which he now denied, Garth
answered:
A: Yes. That was a statement that was necessary in
order for the Judge to accept my plea, so I gave it.
I lied under oath.
S.C.R. at 637. After some discussion of why Garth was
willing to plead guilty to attempted murder and robbery,
the following colloquy occurred:
Q: And you walking into a trial of Leo Johnson, and
said you saw your brother try to kill James Hardy, but
today you’re telling this jury that you didn’t see your
brother kill James Hardy, is that correct?
A: I told them . . .
Q: Or try to kill him?
A: Yes. I told the Court that I did see him point the
gun at his head, which was untrue. He never did that.
S.C.R. at 642. The State then moved on to who Garth’s two
friends were, but Garth maintained that he did not know
the identities of the two men he and his brother robbed
the store with because he only knew their nicknames.
Garth’s counsel then began re-direct, attempting to elicit
why Garth was initially willing to plead guilty. Garth
answered:
No. 05-3084 7
A: At the time, it was all . . . I was all concerned about
the time. The time was a big deal, but now I can’t sit
here and say that my brother tried to kill this man,
because it’s not true, and I’m willing to take the
risk now to go to trial, and prove so.
S.C.R. at 650. Garth’s counsel then concluded his re-direct
with the following colloquy, focusing on Garth’s intent on
the night of the robbery:
Q: Was it your intention, at any time, to harm the
attendant at the store?
A: No. I never touched that man.
Q: Would you have taken part in that robbery if
anyone else had voiced intention to you about murder-
ing this attendant?
A: No.
S.C.R. at 651. The State’s re-cross immediately focused
on Garth’s love for his brother, and quickly concluded:
Q: And you’re telling us today that your brother never
tried to kill that man, James Hardy, isn’t that true?
A: Yes.
S.C.R. at 653.
C. Closing Arguments
During closings, neither the State nor Garth focused on
intent. Garth’s counsel attempted to point out incon-
sistencies, including those in Hardy’s testimony:
How can you click a gun that’s got a live round in its
chamber, that’s cocked, it’s loaded like this, and noth-
ing’s going to happen with it, and then Mr. Hardy says
he heard that three times, you know, and was sure
about the sound that he heard. I just don’t think it’s
8 No. 05-3084
possible. I don’t know what he heard back there at
that, but I don’t think he heard somebody clicking
that gun three times at his head. I think it’s probably
fortunate that he didn’t hear that. Very fortunate,
because then we . . . he wouldn’t be here, and that
would be unfortunate. What happened was unfortu-
nate, but what’s even more unfortunate of this whole
scenario is the fact that the only evidence we have
that hinges this . . . the attempted murder charge of
this young man over here is Mr. Hardy’s confused
recollection of what went on that night.
S.C.R. at 677.
Garth’s counsel then responded to the State’s assertion
that Garth never tried to stop Ahman from shooting
Hardy:
Well, I submit to you that you can’t have negative
acquiescence to something that didn’t happen. You
can’t try to stop someone from clicking a gun if that
gun didn’t click. He pointed the gun at him. Pointed
the gun at him is not attempted murder . . . you can’t
stop something that is either not happening, just
doesn’t exist . . . .
S.C.R. at 678.
Garth’s counsel then argued that it would make no
sense to try to kill Hardy before any money was recovered
and that no bullets or spent casings were recovered from
the store. As to intent, he argued the following:
We’ve got . . . they’ll instruct you about intent and
knowingly. Heavy, heavy burdens that you’ve got
there when you start to analyze those. What consti-
tutes the actual intent of this, I don’t know, but you
know, there was . . . I don’t think there was any in-
tent there ever, on the part of anybody, certainly not
No. 05-3084 9
on the part of [Garth] over here in that, except for the
intent to maybe commit a robbery. . . .
S.C.R. at 680.
In rebuttal, the prosecutor remarked, among other
things:
The only thing that this Defendant disputes is whether
his brother actually pulled the trigger when it was
held to James Hardy’s head. That’s the only thing.
Everything else is proven beyond any doubt.
S.C.R. at 689. The prosecutor also focused on “one fact out
here that screams out in this case”:
Why would somebody go into a store, in their neighbor-
hood, and try to rob a clerk that they knew, with no
mask on his face? Why would somebody do that? You
are sure to be caught. No one in this robbery wanted
to be caught, did they? You’re not going to get caught
if you murder the guy. There’s not going to be any
witnesses then. That fact cries out, and tells you,
compels you, to the conclusion that you knew from the
beginning they were going to kill James Hardy. If
they weren’t, they would have gone somewhere else.
They would have worn a mask. They wouldn’t walk in
there to just get caught.
S.C.R. at 692-93.
D. Jury Instructions
The Judge then instructed the jury. These instructions
form the basis of Garth’s argument on appeal. Therefore,
we will recount the relevant portions:
Court’s Final Instruction No. 1
COUNT I
10 No. 05-3084
The State of Indiana has alleged that the defendant
[Garth], . . . did intentionally attempt to commit the
crime of knowingly killing James Hardy, . . . by inten-
tionally pointing a loaded [gun] at the head of the said
James Hardy and repeatedly pulling the trigger . . . .
S.C.R. at 695.
Court’s Final Instruction No. 2
The crime of attempted murder . . . is defined by
statute as follows:
A person who knowingly or intentionally kills
another human being commits murder, a felony. A
person attempts to commit murder when, acting with
the culpability required for commission of the murder,
he engages in . . . a substantial step. . . .
To convict the defendant, [Garth], . . . the State must
have proved each of the following elements:
The defendant
1. on or about August 21, 1997,
2. acting with the specific intent to commit murder,
to-wit: knowingly killing James Hardy,
3. did intentionally point a loaded [gun] at the head
of the said James Hardy and repeatedly pull the
trigger . . . .
If the State failed to prove each of these elements
beyond a reasonable doubt, you should find the Defen-
dant not guilty.
If the State did prove each of these elements beyond
a reasonable doubt, you should find the Defendant
guilty of the crime of attempted murder . . . .
S.C.R. at 696-97.
No. 05-3084 11
Court’s Final Instruction No. 5
Attempt is a crime of specific intent, that is, it must
be done with the intent to commit the alleged felony.
Specific intent is a material element of the crime
charged, and must be proven by the State beyond a
reasonable doubt. In laymen’s terms, intent means
a person’s purpose or state of mind at the time he
engages in the alleged criminal act.
Since one’s purpose and/or intent are subjective
facts, the State is not required to make proof of specific
intent by direct evidence. Therefore, in order to deter-
mine the defendant’s purpose and/or intent, you may
look to all of the surrounding circumstances, includ-
ing what was said and done at the time of the alleged
criminal act. A determination of the defendant’s intent
may be arrived at by the jury from a consideration of
the defendant’s conduct and from the facts and circum-
stances surrounding the alleged criminal act.
S.C.R. at 700.
Court’s Final Instruction No. 11
A person who knowingly or intentionally aids,
induces, or causes another person to commit an offense
commits that offense.
To ‘aid’ under the law is to knowingly aid, support,
help or assist in the commission of a crime. It is
knowingly doing some act to render aid to the actual
perpetrator of the crime, though without taking a
direct share in its commission.
S.C.R. at 706.
Court’s Final Instruction No. 12
The Court instructs you that it is the law in Indiana
that a person engaged in the commission of an unlaw-
ful act is legally responsible for all the consequences
12 No. 05-3084
which may naturally or necessarily flow from it. If
he combines and confederates with others to accom-
plish an illegal purpose, he is liable criminally for
everything done by his confederates which flows
incidentally from the execution of the common design
as the natural and probable consequences of the
common design. This rule of criminal responsibility for
the acts of others is subject to the reasonable limita-
tion that the particular act or acts of one member of
a party, for which the other associates and confeder-
ates are held to be liable, must be shown to have been
done in furtherance or in prosecution of the common
object and design for which the persons combined
together.
S.C.R. at 707.
Court’s Final Instruction No. 14
An accomplice does not need to commit each element
of an offense if the accomplice acts in concert with
another individual who commits the requisite acts. The
acts of one accomplice are imputed to all other accom-
plices.
S.C.R. at 709.
II. ANALYSIS
Garth’s argument is that the jury instructions had the
effect of relieving the state of the burden to prove each
element of the charged offense violating the Due Process
Clause of the Fourteenth Amendment. See United States
v. Gaudin, 515 U.S. 506, 511 (1995) (“The Constitution
gives a criminal defendant the right to demand that a
jury find him guilty of all the elements of the crime with
which he is charged . . . .”). Garth argues that because the
jury instructions in his case can be reasonably read as
requiring only a mens rea relating to knowledge for
No. 05-3084 13
attempted murder, those instructions relieved the State
of the need to prove specific intent. It is undisputed, at
least before us, that specific intent to kill (on the part of
an accomplice) is an element of aiding an attempted
murder in Indiana. See Bethel v. State, 730 N.E.2d 1242,
1246 (Ind. 2000) (explaining that “to convict for the offense
of aiding an attempted murder, the State must prove:
(1) that the [principal] acting with the specific intent to
kill [took a substantial step], and (2) that the defendant,
acting with the specific intent that the killing occur,
knowingly or intentionally aided, induced, or caused the
[principal] to commit . . . attempted murder”). Bethel was
decided after Garth’s trial, but the Indiana Supreme Court
has made clear that “Bethel did not announce a new rule
of criminal procedure but rather explained what the
State was already required to prove to gain a conviction
for attempted murder under a complicity theory.” Williams
v. State, 737 N.E.2d 734, 740 n.16 (Ind. 2000).2 We will
assume that this theory would require habeas relief, if
supported by the record.3
2
We note that the Indiana Supreme Court has reaffirmed, in the
context of discussing Bethel, its longstanding precedent that
an accomplice is liable for all acts committed by a confederate
in furtherance of a common plan. Williams, 737 N.E.2d at 739. As
the Indiana Supreme Court explained, “[i]n the typical attempted
murder prosecution involving an armed robbery or some other
criminal enterprise gone awry, the accomplice is criminally liable
for the acts done by [the accomplices’] confederates which were
a probable and natural consequence of their common plan, and
the intent to kill is properly inferred from the . . . shooting
principal.” Id. (citations and quotations omitted). The State
does not argue to us that this theory of criminal liability would
independently support Garth’s conviction for attempted murder.
3
We will address Garth’s argument on the merits and not
consider the State’s procedural default argument.
14 No. 05-3084
Our review of Garth’s petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). For purposes of this case, the AEDPA only
allows habeas relief if the state court decision was either
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” Charlton v. Davis,
439 F.3d 369, 374 (7th Cir. 2006) (quoting 28 U.S.C.
§ 2254(d)(1)). The relevant state court decision is that of
the last state court to address the claim on the merits.
McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003).
A state court decision is contrary to the Supreme Court’s
“precedent if the state court arrives at a conclusion
opposite to that reached by [the] Court on a question of
law,” or, “if the state court confronts facts that are materi-
ally indistinguishable from a relevant Supreme Court
precedent and arrives at” an opposite result. Williams v.
Taylor, 529 U.S. 362, 405 (2000) (citing Green v. French,
143 F.3d 865, 869-70 (4th Cir. 1998)). A decision apply-
ing the correct legal rule to the facts of a case is not
“contrary to” within the meaning of § 2254(d)(1). Id.
at 406.
An application of the correct legal rule can be unreason-
able, however, within the meaning of § 2254(d)(1). Id. at
407-08. “[A] federal habeas court making the ‘unreasonable
application’ inquiry should ask whether the state court’s
application of clearly established federal law was objec-
tively unreasonable.” Id. at 409. A state court decision is
not unreasonable simply because the court applied fed-
eral law incorrectly. Id. at 410 (“For purposes of today’s
opinion, the most important point is that an unreasonable
application of federal law is different from an incorrect
application of federal law.”).
Garth assumes that the Indiana Appellate Court’s
fundamental error review of his jury instruction claim—
No. 05-3084 15
performed in the context of considering whether prejudice
existed for alleged ineffective assistance of counsel—acted
as an “adjudication on the merits” for purposes of the
AEDPA. See Garth v. State, No. 82A01-0309-PC-367, slip
op. at 5 n.1 (Ind. Ct. App. Apr. 15, 2004). We will do the
same. Garth argues that this holding is contrary to federal
law in that the Indiana Court of Appeals applied a test
contrary to that of the Supreme Court’s precedent. Garth
also argues, in the alternative, that the court’s applica-
tion of the law was unreasonable.
Garth claims that the clearly established Federal law
contradicted by the Indiana Appellate Court is the Su-
preme Court’s direction to query whether there is a
“reasonable likelihood that the jury has applied the
challenged instruction in a way that violates the Con-
stitution.” Middleton v. McNeil, 541 U.S. 433, 437 (2004)
(per curiam) (quoting Estelle v. McGuire, 502 U.S. 62, 72
(1991)). We note from the outset that “[a] state court’s
decision is not ‘contrary to . . . clearly established Federal
law’ simply because the court did not cite [the Supreme
Court’s] opinions.” Charlton, 439 F.3d at 374 (quoting
Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam)).
“A state court need not even be aware of Supreme Court
precedent ‘so long as neither the reasoning nor the result
of the state-court decision contradicts them.’ ” Id. (quoting
Mitchell, 540 U.S. at 16).
The Indiana Appellate Court evaluated Garth’s jury
instructions under a “fundamental error” standard, which,
in this context, caused that court to ask whether the
instructions “sufficiently informed the jury of the specific
intent requirement for attempt.” See Smith v. State, 792
N.E.2d 940, 944 (Ind. Ct. App. 2003). “There is no funda-
mental error if the instructions as a whole adequately
inform the jury that they must find the defendant had the
specific intent to kill.” Id. (citations and quotations
omitted).
16 No. 05-3084
The question for us, then, is whether the use of the
fundamental error standard as explained above constitutes
a legal conclusion opposite that of the Supreme Court’s.
We think not. Garth argues that querying an instruc-
tion’s “adequacy” is contrary to considering whether there
exists a “reasonable likelihood” it was used unconstitution-
ally. He buttresses this argument by assuming, without
citation or further elaboration, that “adequate” as used by
the Indiana Appellate Court is a standard equivalent to
that of preponderance of the evidence. There is no support
for that conclusion in Garth’s case.
In any event, Garth’s focus on Supreme Court precedent
in this area is too narrow. The Court has made clear that
the initial question regarding jury instructions “is ‘whether
the ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process.’ ” Estelle,
502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973)). When answering this question, the Court has
further explained, instructions “must be considered . . . as
a whole,” id., and, finally, ambiguous instructions should
be considered under the “reasonable likelihood” standard
cited by Garth. Id. (citing Boyde v. California, 494 U.S.
370, 380 (1990)).
The reasoning of the Indiana Appellate Court was to
concede that Instruction No. 11, the accomplice liability
instruction, was erroneous because it failed to “inform the
jury that ‘in order to convict, it was required to find that
[Garth] intended to kill [Hardy] when he took the steps that
helped [the gunman] to [attempt to] kill him.’ ” Garth, slip
op. at 8 (emphasis in original) (quoting Hopkins v. State,
759 N.E.2d 633, 638 (Ind. 2001)). Nevertheless, the
Indiana Appellate Court went on to consider that Instruc-
tion No. 2, the attempted murder instruction, and Instruc-
tion No. 5, the attempt instruction, both made clear that
specific intent needed to be proved beyond a reasonable
No. 05-3084 17
doubt.4 Based on the instructions as a whole, the Indiana
Appellate Court found that the jury was adequately
informed of the need to find specific intent beyond a
reasonable doubt, and never considered whether a specific
instruction was ambiguous. This approach does not
contradict clearly established Federal law. See, e.g.,
Canaan v. McBride, 395 F.3d 376, 388 (7th Cir. 2005)
(“[W]e must determine whether the jury instructions in
[this] case, read as a whole, failed to instruct the jury in
an element of [the crime] thereby relieving the State of
its obligation under the Due Process Clause to prove
beyond a reasonable doubt every element of the offense.”).
The decision of the Indiana Appellate Court might still
be unreasonable, but only if it is objectively unreason-
able and not merely incorrect. Williams, 529 U.S. at 409-
10. It was not objectively unreasonable to conclude that
the error in Instruction No. 11 was sufficiently mitigated
by Instructions Nos. 2 and 5. Instruction No. 5 clearly
states, “Attempt is a crime of specific intent,” and Instruc-
tion No. 2 states that the jury must find beyond a reason-
able doubt that Garth acted “with specific intent to com-
mit murder.”
Admittedly, the instructions are far from perfect.
Instruction No. 2 defines the mens rea for murder as
4
More specifically, the Indiana Appellate Court found there
was no “compound error,” which would be a failure to inform the
jury that attempted murder requires specific intent and a
failure to inform the jury that a non-shooting accomplice must
have specific intent to kill to be an accomplice to attempted
murder. Where such “compound error” exists, the Indiana
Supreme Court has required post-conviction relief. See, e.g.,
Williams, 737 N.E.2d at 739-41 (“Because we cannot say that
Williams did not suffer harm as a result of the compound error
associated with not instructing the jury as to specific intent of
either principal or accomplice, we vacate Williams’s conviction
under an accomplice liability theory for attempted murder.”).
18 No. 05-3084
“knowingly or intentionally,” and then states that the
mens rea for attempted murder is the same. And, where
the instruction requires the proper mens rea, it states:
“acting with the specific intent to commit murder, to-wit:
knowingly killing James Hardy.” We are also concerned
with the effect Instructions Nos. 12 and 14 may have had,
given that they recite a concept of accomplice liability
not requiring specific intent. See Williams, 737 N.E.2d at
739. Nevertheless, consideration of these complications
does not change our conclusion that the Indiana Appellate
Court was not objectively unreasonable in determining
that the jury instructions comported with due process.
Any doubt we might have as to the reasonableness of the
Indiana Appellate Court’s ruling is allayed by the harm-
lessness of the alleged error. Our consideration of this
issue is made more difficult because the state did not
distinctly raise harmlessness. See Jenkins v. Nelson, 157
F.3d 485, 494 n.1 (7th Cir. 1998). But we have “discretion
to overlook a party’s failure to argue harmlessness.”
Jenkins, 157 F.3d at 494 n.1 (citing United States v. Jewel,
947 F.2d 224, 228-29 n.5 (7th Cir. 1991)). We will exercise
that discretion here because the trial record is clear
that Garth’s intent was never seriously in dispute. We also
note that Garth addressed the issue throughly in his brief.
In a habeas proceeding, an error is harmless unless it
“had substantial and injurious effect or influence in
determining the jury’s verdict.” Jenkins, 157 F.3d at 494(quoting California v. Roy, 519 U.S. 2 (1996) (per curiam));
see also Brecht v. Abrahamson, 507 U.S. 619, 639-44 (1993)
(Stevens, J., concurring). If we are in “grave doubt” as to
whether the error had such an effect, the conviction
must be reversed. Id.5
5
We have noted Garth’s argument that the State bears the
burden on this issue. The Supreme Court has been clear that the
(continued...)
No. 05-3084 19
Any error in instructing the jury as to the intent re-
quired to convict Garth of attempted murder was harm-
less. The reason is that Garth’s intent was never seriously
disputed at trial. The dispute at trial centered on whether
Ahman actually tried to kill Hardy. Garth affirmatively
testified three times that Ahman did not try to kill Hardy,
and went so far as to call Hardy a liar. See S.C.R. at 626
(“My brother never tried to kill that man.”); id. at 627(“[M]y brother didn’t try to kill that man. What that
man’s saying is not true.”); id. at 650 (“I can’t sit here and
say that my brother tried to kill this man, because it’s not
true . . . .”).
Garth also denied five times the truth of his previous
testimony that Ahman pointed a gun at Hardy’s head. See
id. at 625 (“I gave them the statement that said my
brother did point the gun at the witness, and that is
untrue.”); id. at 637 (“Q: And . . . isn’t it true that you saw
[Ahman] point [the gun] at James Hardy’s head in the
back room? A: No. It is not true.”); id. (“That was a
statement that was necessary in order for the Judge to
accept my plea, so I gave it. I lied under oath.”); id. at 642(“Yes. I told the Court that I did see [Ahman] point the
gun at [Hardy’s] head, which was untrue. He never did
that.”); id. at 653 (“Q: And you’re telling us today that
your brother never tried to kill that man, James Hardy,
isn’t that true? A: Yes.”).
The issue of Garth’s intent only came up during two
consecutive questions on re-direct, when his attorney
asked about it. Id. at S.C.R. at 651 (“Q: Was it your
intention, at any time, to harm the attendant at the store?
5
(...continued)
effect of that burden is to tip the scales in favor of finding
error when a judge is in grave doubt as to harmlessness. See
O’Neal v. McAninch, 513 U.S. 432, 436-38 (1995).
20 No. 05-3084
A: No. I never touched that man.”) (“Q: Would you have
taken part in that robbery if anyone else had voiced
intention to you about murdering this attendant? A: No.”).
Moreover, the closing arguments did not focus on the
issue of Garth’s intent. Garth’s counsel argued to the
Jury that Hardy’s account of the attempted murder was
implausible, id. at 677-78, while pointing out other
perceived inconsistencies supporting reasonable doubt.
And when he did raise the issue of intent, he did so by
arguing that none of the alleged criminals had the intent
to kill Hardy. Id. at 680 (“I don’t think there was any
intent there ever, on the part of anybody, certainly not on
the part of [Garth] . . . except for the intent to maybe
commit a robbery. . . . ”) (emphasis added). The presenta-
tion of the evidence lead the State in rebuttal to tell the
jury that “[t]he only thing [Garth] disputes is whether
his brother actually pulled the trigger when it was held
to James Hardy’s head. That’s the only thing.” Id. at 689.
And as to Garth’s intent, the State argued that the fact
Garth and Ahman would rob the store without masks
knowing that Hardy could easily identify them “cries out,
and tells you, compels you, to the conclusion that you know
from the beginning they were going to kill James Hardy.”
Id. at 692-93.
We are not in grave doubt as to whether the presence
of the word “knowingly” in Instruction No. 2, and the
absence of the proper “specific intent” language in the
other instructions, “had substantial and injurious effect
or influence in determining the jury’s verdict.” Jenkins,
157 F.3d at 494. We might have thought differently if
Garth’s testimony and theory of defense were that an
attempted murder did occur, or might have occurred, but
he never imagined that would happen as he was only on
board for a robbery. Garth’s defense, however, was that
Ahman never tried to kill Hardy. This case came down to
a credibility determination between Hardy and Garth, and
No. 05-3084 21
the jury chose not to believe Garth. Because any error
was harmless, Garth’s conviction for attempted murder
stands. Id.III. CONCLUSION
Accordingly, the decision of the district court granting
Garth’s § 2254 petition is REVERSED.
ROVNER, Circuit Judge, dissenting. Faraji Garth
concedes that he committed an appalling crime, a danger-
ous armed robbery that, of course, put people’s lives at
risk. It is tempting, therefore, to gloss through the
weighty procedural details of habeas corpus review on the
path to denying relief for this confessed armed robber. The
protections afforded by our Constitution, however, work
only if they are followed faithfully and meticulously as to
each crime for which a defendant is accused without
regard to guilt or innocence on other counts of the indict-
ment. On the other side of the coin, federal habeas corpus
law provides a very narrow scope of review and relief, and
has been further restricted by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). In partic-
ular, principals of comity, federalism, and judicial effi-
ciency preclude the federal courts from reaching the
merits in a habeas case when the claim was presented to
the state courts and the state court ruling against the
habeas petitioner was based on independent and ade-
quate state-law procedural grounds. Perruquet v. Briley,
390 F.3d 505, 514 (7th Cir. 2004). Garth asked the federal
district court to do just that—to grant habeas relief on his
22 No. 05-3084
freestanding claim that the jury instructions contained an
incorrect mens rea requirement. The state argued, cor-
rectly, that this freestanding claim was barred from review
by procedural default. The majority, however, states that
it will address these argument on the merits without
considering the State’s procedural default argument. Ante
at 13, n.3. Although it may seem economical to jump
straight to the merits of Garth’s freestanding claim of
jury instruction error—particularly where the merits of
this claim are so intertwined with Garth’s still viable
ineffective assistance of counsel claim—we cannot aban-
don principals of comity and federalism for the sake of
economy. Garth’s freestanding claim of jury instruction
error is ineligible for federal habeas corpus relief because
he failed to comply with Indiana’s procedural rule that
requires such claims to be raised on direct appeal. Garth
raised his claim about the mens rea error for the first time
in his post-conviction relief proceedings. In Indiana, post-
conviction courts do not provide a petitioner with a “super
appeal.” Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
2001). Indiana allows petitioners to address only a nar-
row range of issues in post-conviction proceedings, and a
petitioner otherwise waives any issues not raised on di-
rect appeal. (See Ind. Post-Conviction Rule 1). Garth’s
post-conviction appeals (hereinafter “PCA”) court prop-
erly concluded that these claims were waived. (PCA
Decision at 5) (R. at 27, Ex. J to Ex. A, p. 5, n.1). Garth
has not asserted any of the equitable doctrines that allow
a federal court to consider a claim on the merits not-
withstanding a procedural default in the state courts. See
Perruquet, 390 F.3d at 514-15. Consequently, the major-
ity errs by addressing Garth’s claims on the merits where
the Indiana PCA court dismissed his claim on an inde-
pendent and adequate state procedural law ground.
Although this court cannot address the merits of the
underlying claim of jury instruction error, we can examine
No. 05-3084 23
Garth’s claim of ineffective assistance of counsel, as Garth
did pursue this claim through one complete round of
state post-conviction review. This claim necessarily re-
quires us to look at possible error in the jury instructions;
the same error, in fact, that Garth asks us to review
directly. It would be a mistake, however, to assume that
our review of the jury instructions in the context of an
ineffectiveness claim is equivalent to a direct review of the
question of jury instruction error. Claims of ineffective
assistance of counsel are bounded by the requirements
of Strickland v. Washington, 466 U.S. 668 (1984) and its
progeny, which instruct that to make a showing of ineffec-
tive assistance of counsel, a petitioner must demonstrate
first that counsel’s performance was objectively unrea-
sonable, and second that the deficient performance re-
sulted in prejudice. Strickland, 466 U.S. at 687-88; United
States v. Best, 426 F.3d 937, 945 (7th Cir. 2005). “Our
review of the attorney’s performance is highly deferential
and reflects a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Davis v.
Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004). For the
second prong—establishing prejudice—the defendant
must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable prob-
ability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694.
On top of the requirements of Strickland, federal habeas
law adds an additional hurdle. It is not enough that Garth
show that his counsel was ineffective. As the majority
describes, under the AEDPA, Garth must demonstrate
that the state court’s decision holding otherwise was
“contrary to, or involved an unreasonable application of,
24 No. 05-3084
clearly established Federal law, as determined by the
Supreme Court of the United States; or [ ] resulted in a
decision that was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1). “A state
court decision is contrary to clearly established federal
law when the state court applies a rule that contradicts
the governing law set forth by the Supreme Court or, on
facts materially indistinguishable from the facts of an
applicable Supreme Court precedent, reaches a different
result.” Goodman v. Bertrand, 467 F.3d 1022, 1026 (7th
Cir. 2006) (internal citations omitted).
Under the AEDPA, therefore, Garth must demonstrate
that the Indiana Appellate Court, on post-conviction
review, unreasonably applied Strickland in evaluating
Garth’s ineffective assistance claim. Unlike the major-
ity, I would find that the PCA court’s application of
Strickland was not only wrong, but objectively unreason-
able.
The majority agrees, as it must, with the PCA court
and with Garth that at the time of Garth’s trial, Indiana
law on accomplice liability for attempted murder required
the state to prove that the accomplice had the specific
intent that the killing occur. See Williams v. Indiana, 737
N.E.2d 734, 739, 740 n.16 (Ind. 2000) (explaining that, in
order to gain a conviction for attempted murder as an
accomplice, the state has always been required to prove
that the accomplice had the same specific intent as the
principal); see also Bethel v. State, 730 N.E.2d 1242, 1246
(Ind. 2000); Woodson v. State, 767 N.E.2d 1022, 1028 (Ind.
Ct. App. 2002) confirmed on reh’g, 778 N.E.2d 475 (Ind. Ct.
App. 2002); (PCA Decision at 8) (R. at 27, Ex. J to Ex. A, p.
8). The PCA court, the district court below, both parties,
and the majority of the panel on this appeal agree, further-
more, that jury instruction number eleven was erroneous
No. 05-3084 25
because it failed to instruct the jury that in order to
convict it had to find that Garth intended that Hardy
would be killed. (PCA Decision at 8) (R. at 27 Ex. J to Ex.
A, p. 8; (D. Ct. decision at 4); (Brief of Respondent-Appel-
lant at 12-13); (Brief of Petitioner-Appellee at 16); ante
at 13, 17-18. In fact that instruction specifically used the
words “knowingly or intentionally.” (R. at 20, p. 706)
(emphasis added). In short, the law required intent; the
jury instruction allowed for conviction on mere knowledge;
and yet Garth’s attorney remained silent voicing no
objection to this key error. This alone would constitute an
objectively unreasonable performance, but as I will
describe in further detail in a moment, counsel’s failures
went much further.
The PCA court, with which the majority agrees, con-
cluded that the error in instruction number eleven was
mitigated by the instructions as a whole, which later
informed jurors, in instruction number five, that “attempt
is a crime of specific intent.” (PCA Decision at 10) (R. at 27
Ex. J to Ex. A, p. 10); ante at 17. Read in full that instruc-
tion states:
Attempt is a crime of specific intent, that is, it must
be done with the intent to commit the alleged felony.
Specific intent is a material element of the crime
charged, and must be proven by the State beyond a
reasonable doubt. In laymen’s terms, intent means a
person’s purpose or state of mind at the time he
engages in the alleged criminal act.
(R. at 20, p. 700). This instruction certainly does describe
the requisite mens rea required for attempted murder, but
fails to clear up the confusion over the mens rea require-
ment for an accomplice to attempted murder. To under-
stand why this distinction is important, we must first
understand how the law of accomplice liability and at-
tempt intersect in Indiana. Under Indiana law, in order
26 No. 05-3084
for the state to secure a conviction for attempted murder
as an accomplice, the state is required to prove, “(1) that
the [principal], acting with the specific intent to kill, took
a substantial step toward the commission of murder, and
(2) that the defendant [accomplice], acting with the specific
intent that the killing occur, knowingly or intentionally
aided, induced or caused the [principal] to commit the
crime of attempted murder.” Williams, 737 N.E.2d at 739.
For our purposes, I find it helpful to break the mens rea
requirements down into smaller steps and reiterate that
the jury instructions must inform the jury of the follow-
ing three things: (1) the principal, Garth’s brother, must
have had the intent to kill the victim, Hardy; (2) Garth
must have had the intent that Hardy would be killed, and
(3) Garth must have knowingly or intentionally aided,
induced, or caused his brother to commit the crime of
attempted murder. Because jury instruction five describes
the mens rea requirement for attempted murder and
not for accomplice liability, that instruction allows a jury
to infer that Garth could be convicted if his brother
intended to kill Hardy even if Garth neither intended to
kill Hardy nor intended that his brother would kill Hardy.
The instruction does not advise a jury that the accom-
plice must have the same mens rea as the principal. And
in fact, this confusion is amplified by instruction number
twelve, which informs jurors that if an accomplice “com-
bines and confederates with others to accomplish an
illegal purpose, he is liable criminally for everything
done by his confederates which flows incidentally from the
execution of the common design as the natural and
probable consequences of the common design.” (R. at 20,
p. 707). According to this instruction, if Garth’s brother
committed attempted murder, Garth is liable as well
without regard to Garth’s state of mind. This is plainly
incorrect and compounds the error of instruction num-
ber eleven.
No. 05-3084 27
As the majority correctly points out, a court must
consider the jury instructions as a whole when evaluat-
ing whether they adequately informed the jury of the
state’s burden. The PCA court’s conclusion that the
definition in instruction five cured the omission in instruc-
tion eleven ignores the misleading effect of instruction
twelve that I just described. More importantly, it ignores
the outright error of instruction number two which also
grossly misstates the mens rea requirement for attempted
murder. Recall that instruction number two states:
The crime of attempted murder as charged in Count I
is defined by statute as follows: A person who know-
ingly or intentionally kills another human being
commits murder, a felony. A person attempts to
commit a murder when, acting with the culpability
required for commission of the murder, he engages
in conduct that constitutes a substantial step toward
commission of the murder.
(R. at 20, p. 696) (emphasis added). It is undisputed,
however, that in order to prove attempted murder in
Indiana, the government must prove that the defendant
intended to kill, not merely that he did so knowingly.
Spradlin v. Indiana, 569 N.E.2d 948, 950 (Ind. 1984). The
instruction goes on to further confuse the distinction
between intentionally and knowingly:
To convict the defendant, Faraji Omar Garth, in
Count I, the State must have proved each of the
following elements:
The defendant
1. on or about August 21, 1997,
2. acting with the specific intent to commit murder,
to-wit: knowingly killing James Hardy,
3. did intentionally point a loaded Raven .25 caliber
28 No. 05-3084
handgun at the head of the said James Hardy
and repeatedly pull the trigger,
4. which conduct constituted a substantial step
toward the commission of the intended crime of
murder.
If the state failed to prove each of these elements
beyond a reasonable doubt, you should find the Defen-
dant not guilty.
If the State did not prove each of these elements
beyond a reasonable doubt, you should find the Defen-
dant guilty of the crime of attempted murder, a Class
A Felony, in Count I.
(R. at 20, p. 696-97) (emphasis added). Not only is this
instruction erroneous, but it contradicts the clear instruc-
tion in instruction five that “attempt is a crime of specific
intent, that is, it must be done with the intent to com-
mit the alleged felony.”1
1
The PCA court’s unreasonable application of Strickland was
compounded by its inaccurate conclusion that Garth challenged
only jury instruction number eleven. Because of this error, the
PCA court failed to review the errors in the instructions on
attempted murder. The PCA court’s conclusion on this matter
was wrong. Garth did not limit his objection to jury instruc-
tion number eleven which specifically defines accomplice liability
in Indiana, but rather stated generally that the “jury instruc-
tions given at his trial failed to adequately advise the jury that,
in order for it to find Faraji Garth guilty of attempted murder
as an accomplice or accessory, the State must prove beyond a
reasonable doubt that Garth had ‘specific intent to kill’ the
alleged victim, James Hardy.” See Post-conviction Relief Brief
at 13 (R. at 27, Ex. G to Ex. A, p. 13). In order to be convicted
of accomplice liability for attempted murder in Indiana, the
state had to prove that both the principal and the accomplice
had the intent to kill the victim. Consequently any error in
describing the mens rea for attempted murder was an error in
(continued...)
No. 05-3084 29
Summing up the morass created by the jury instructions:
(1) The defendant, the PCA court, and the majority all
agree that instruction number eleven failed to describe
the requisite intent for accomplice liability for at-
tempted murder.
(2) The first half of jury instruction number two incor-
rectly stated that an accomplice could be guilty for
merely knowingly engaging in the requisite conduct.
(3) The second half of instruction number two incorrectly
instructed jurors that acting knowingly is the same
as acting with specific intent.
(4) The only instruction that accurately described the
intent requirement is instruction number five, but it
did so only for attempt; it said nothing about accom-
plice liability, and directly contradicted the instruc-
tion in number two that “specific intent” means “know-
ingly.”
(5) Instruction number twelve implied that if Garth’s
brother committed attempted murder, Garth would
be liable as well without regard to Garth’s state of
mind.
Despite these catastrophic errors (including directly
contradictory instructions), Garth’s counsel stood silent.
This was not a trial strategy or within the realm of
1
(...continued)
describing the mens rea for accomplice liability for attempted
murder. In any case, jury instructions must be viewed as a
whole, so even if Garth failed to highlight other instructions,
glaring errors in those instructions could not be ignored. A
reviewing court may not look only at the jury instructions that
mitigate an error and ignore those that intensify it. The PCA
court’s conclusion that there was “no compound error here” was
plainly incorrect. See (PCA Decision at 10) (R. at 27, Ex. J to
Ex. A, p. 10).
30 No. 05-3084
reasonable assistance. The failure to object to these
erroneous jury instructions constituted an objectively
unreasonable performance. The PCA court’s contrary
conclusion was not only incorrect, it was unreasonable.
Counsel’s error is of no consequence, however, if the
ineffectiveness did not prejudice Garth. Goodman, 467
F.3d at 1027. Garth need not demonstrate that it is
more likely than not that proper objections to the jury
instructions would have resulted in his acquittal; he need
only establish that there is a reasonable probability, a
better than negligible likelihood. Strickland, 466 U.S. at
693-94; Harding v. Sternes, 380 F.3d 1034, 1045 (7th Cir.
2004). In considering the reasonable probability of differ-
ing results we must be cognizant of the confusing nature
of attempt and of accomplice liability. The Wisconsin
Supreme Court has specifically recognized “the inherent
ambiguity in attempted murder prosecutions and the
need to instruct juries precisely as to the correct level of
culpability.” Williams, 737 N.E.2d at 740. That court
further noted that “both the level of ambiguity and the
corresponding need for precise jury instructions signifi-
cantly increase in a prosecution for aiding an attempted
murder.” Id. Liability for being an accomplice to at-
tempted murder hangs on the precise mens rea of
the accused, and a minor imprecision in the jury instruc-
tions can readily alter the outcome of a trial. Garth
admitted that he knew that the robbery was a risky crime
and all but conceded that he acted knowingly. (R. at 636-
638, 647). Instructions that told the jury that either
knowledge or intent would suffice for a conviction for
attempted murder as an accomplice sealed Garth’s fate.
Garth’s lawyer’s failure to object to such instructions
obviously prejudiced Garth.
The majority does not discuss the issue of prejudice
caused by counsel’s ineffective assistance under the second
prong of Strickland, choosing instead (and incorrectly,
No. 05-3084 31
I maintain) to evaluate the merits of Garth’s freestand-
ing claim of jury instruction error. By turning to the
merits of the freestanding claim, the majority is forced
to consider a “harmlessness” analysis without benefit of
briefing from the State, which had properly argued that
the freestanding claim had been waived. The majority
concludes from its harmlessness analysis “[a]ny error in
instructing the jury as to the intent to convict Garth of
attempted murder was harmless. The reason is that
Garth’s intent was never seriously disputed at trial. The
dispute was centered on whether Ahman actually tried
to kill Hardy.” Ante at 19. But Garth’s intent was most
certainly disputed at trial, and therefore under either a
harmless standard or under Strickland’s prejudice prong,
the majority errs in its conclusion. The majority con-
cedes that “[t]he government’s whole theory of the case
was that, despite being easily recognizable and identifi-
able, Garth and two others robbed the store without masks
because they intended to kill the only witness to the
crime.” Id. (emphasis added). Garth disagreed. Specifi-
cally, Garth argued that neither he nor anyone intended to
kill the store clerk and that no one attempted to do so.
This case presented a paradigm dispute over the issue of
intent.
The competing theories on intent were highlighted
throughout the trial. The government advanced its theory
of intent from its opening statement to the close. In the
opening statement the government set forth its theory
of the case:
It is our theory of the case, and what we will prove to
you, is that he wanted Mr. Hardy to die, because what
you will hear is that this defendant was a regular of
the store, so was his brother, Ahman, so was Leo
Johnson. From the State’s evidence, you are going to
hear that not one of them had a mask on their face or
hid their identity in any way . . . Our theory will
simply be, ladies and gentleman, they did not wear
32 No. 05-3084
a mask, this defendant did not wear a mask, because
they were going to kill James Hardy, so they didn’t
need to wear a mask.
(R. at 20, p. 228-29). During closing arguments the govern-
ment again spoke of the jury’s need to consider the mens
rea and erroneously advised that:
We need to show that Faraji Garth, on or about August
21 of 1997, acted with specific intent to commit the
murder, that is the knowing kill . . . or the killing of
James Hardy, by intentionally pointing a loaded Raven
.25 caliber handgun at the head of said James Hardy,
and repeatedly pulling the trigger, and that step
constitutes a substantial step toward the commission
of the murder.
Id. at 661. The government then reiterated, that “[t]here
can be no question that where he pointed that gun he was
trying to kill him, and that’s not disputed.” Id. at 662.
During rebuttal, the state argued again that the fact that
the men, who were known to the clerk, robbed the store
without masks, “cries out, and tells you, compels you to the
conclusion that you knew from the beginning that they
were going to kill James Hardy.” Id. at 692-93.
Garth, on the other hand, countered that he had no
intent that anyone would be killed in this simple robbery:
On direct examination, Garth presented the following
testimony:
Q. Was it your intention, at any time, to harm the
attendant at the store?
A. No. I never touched that man.
Q. Would you have taken part in that robbery if
anyone else had voiced intention to you about
murdering this attendant?
A. No.
No. 05-3084 33
Id. at 651. After the presentation of the state’s case,
Garth’s defense counsel moved for a directed verdict
arguing that:
I would argue that, you know, insufficient evidence
that the Defendant committed the crime of armed . . .
of attempted murder. That there’s been a total lack
of evidence that he had the intent . . . the requisite
intent required by statute.
Id. at 612. And finally, during his closing argument,
Garth’s counsel went straight to the heart of the issue of
intent:
[t]hey’ll instruct you about intent and knowingly.
Heavy, heavy burdens that you’ve got there when you
start to analyze those. What constitutes the actual
intent of this, I don’t know, but you know there
was . . . I don’t think there was any intent there ever,
on the part of anybody, certainly not on the part of
Faraji over here in that, except for the intent to may-
be commit a robbery on it.
Id. at 680.
Clearly the majority’s conclusion that “intent was
never seriously disputed” is incorrect. The majority’s
conclusion that Garth’s defense “centered on whether
Ahman actually tried to kill Hardy” is not inconsistent
with a defense of lack of intent. Ante at 19. Garth’s defense
that his brother never pointed the gun at the victim’s head
and never pulled the trigger is precisely a defense about
intent—it is intent to the nth degree. Garth argued that no
one took any steps toward the commission of murder
because no one intended to harm the clerk.
The PCA court’s conclusion that the jury instruction
error could not have prejudiced Garth was plainly unrea-
sonable. But for counsel’s failure to object to the jury
instruction, there is more than a reasonable probability
34 No. 05-3084
that Garth would not have been convicted as an accomplice
to attempted murder, as the evidence of intent was weak
at best. In fact, the lawyer for the state admitted that
he could not prove beyond a reasonable doubt that Garth
intended that the clerk would be killed:
Jury, there’s one fact out here that screams out in this
case. I can’t prove it to you beyond a reasonable
doubt, but I want you to think about it. Why would
somebody go into a store, in their neighborhood, and
try to rob a clerk that they knew, with no mask on his
face? . . . You’re not going to get caught if you murder
the guy. There’s not going to be any witnesses then.
That fact cries out, and tells you, compels you, to the
conclusion that you knew from the beginning they
were going to kill James Hardy.
(R. at 20, p. 692-93) (emphasis added).
During closing arguments the state offered no other
proof of Garth’s intent other than this theory which it
conceded could not be proved beyond a reasonable doubt.
Garth’s guilt or innocence on this count hung entirely
on his intent, yet Garth’s attorney failed to raise one
single objection to the multiple erroneous instructions on
intent, even in the face of a concession from the state that
it could not prove intent. Such a failure prejudiced Garth
and no reasonable court could have found otherwise. For
this reason I respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-11-06