In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3151
T ERRY C. B ROWN,
Petitioner-Appellant,
v.
A LAN F INNAN,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:08-cv-00010-LJM-TAB—Larry J. McKinney, Judge.
A RGUED O CTOBER 30, 2009—D ECIDED M ARCH 17, 2010
Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.
C UDAHY, Circuit Judge. Having been convicted of mur-
dering Charles Young, Jr. and Robert Hunter in 2000,
Terry C. Brown was ultimately sentenced to serve two
consecutive terms of 55 years. Brown subsequently filed
a petition for post-conviction relief, claiming that he
had received ineffective assistance of counsel at both the
trial and appellate levels. His petition focused on an in-
court announcement by one victim’s mother to the effect
2 No. 08-3151
that “the situation [was] racist” and her further proclama-
tion on the courthouse steps that the courthouse should
be treated similarly to the World Trade Center and
bombed. Brown’s attorney declined to request a hearing
to determine the impact of these statements on the jury.
Nor did his appellate counsel raise the issue on appeal.
Brown now contends that his counsels’ failure to
address this issue violated the Sixth Amendment. He
argues further that the Indiana courts’ denial of his
petition for post-conviction relief is contrary to well-
established principles of federal law, as established by the
U.S. Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984). He therefore asserts that this Court should
grant his petition for a writ of habeas corpus.
We decline to do so. To prevail on an ineffective assis-
tance of counsel claim under Strickland, a petitioner must
demonstrate that his counsel’s assistance was objectively
unreasonable and resulted in a substantial risk of preju-
dice. Brown can meet neither requirement. The prejudicial
impact of the statements here on the defendant’s right
to a fair trial is attenuated. Since both Brown and his
victim, Young, were African-American, it is far from clear
how a juror would perceive the assertion of racism in a
manner necessarily injurious to Brown. While obviously
serious, a distraught parent’s threat of bombing the
courthouse does not obviously bear on the guilt or inno-
cence of the defendant. Moreover, there is no evidence
that this out-of-court statement was heard by any juror.
Finally, though no less important, there may be good
reason not to draw explicit attention to such statements.
No. 08-3151 3
Apt counsel might conclude that her client’s cause
would best be promoted by not focusing on issues of
tenuous significance to her client’s guilt or innocence. For
these reasons, Brown’s counsels’ performance was not
objectively unreasonable. Nor did his attorneys’ conduct
result in a substantial risk of prejudice. For these
reasons, and the reasons that follow, we deny Brown’s
petition.
I. BACKGROUND
On the afternoon of July 16, 2000, two police officers on
bike patrol heard gunfire and shortly thereafter observed
Terry C. Brown run into and then hastily depart a barber-
shop. Brown was carrying a white document and an
unidentified object under his arm. After the officers
discovered Charles Young, Jr. lying on the ground with a
gunshot wound in his neck, they split up. One officer gave
chase and successfully apprehended Brown. The other
entered the barbershop and found Robert Hunter, who
had been shot in the head.
When arrested, Brown had blood on his clothing,
though he did not have possession of the item with which
he had been seen exiting from the barbershop. An
ensuing search of the immediate area uncovered a gun
sight and a white piece of paper, in addition to a bag,
which contained a .38-caliber revolver and a 9mm semiau-
tomatic. One of the firearms had six empty shell casings
in it, while the other was loaded with a round in the
chamber and one round missing. The paper appeared to
have blood on it.
4 No. 08-3151
On the same day he was arrested, Brown was charged
with the murder of Young and Hunter. Two instances of
note occurred during his ensuing trial. During the State’s
presentation of evidence, Corey Young, the mother of
victim Charles Young, Jr., announced from the gallery that
“the situation [was] racist.” Although Brown and his
attorney noticed the remark, the judge did not hear it and
testimony continued without interruption. Brown’s
attorney did not bring the matter to the court’s attention.
It is unclear whether any juror perceived Ms. Young’s
statement.
The second incident occurred the same day on the
courthouse steps. Ms. Young apparently stated that “this
courthouse should be treated similar to the World Trade
Center and the whole place should be bombed.” There
is no evidence that any juror was privy to this remark.
When apprised of these statements, and outside the
presence of the jury, the trial judge impressed upon the
spectators in the gallery that he would not tolerate such
comments. He dismissed Ms. Young from the remainder
of the trial. The trial judge did not take any further
action, such as holding a hearing to determine the effect, if
any, of the statements on the jury. Neither the defense
counsel nor the prosecutor requested such a course of
action. The rest of the trial proceeded without incident.
On September 19, 2001, the jury found Brown guilty
of both murders. Consistent with the jury’s recommenda-
tion, the trial court sentenced him to two concurrent
sentences of life in prison without parole. On appeal,
the Indiana Supreme Court remanded the case for
No. 08-3151 5
resentencing. On remand, the trial court imposed the
same sentence. Brown again appealed to the Supreme
Court of Indiana. Finding the trial court’s sentencing
order to be inadequate, the Indiana Supreme Court
ordered a remand with instructions to impose two con-
secutive sentences of 55 years. Brown v. Finnan, 783
N.E.2d 1121, 1126-29 (Ind. 2003). On neither appeal did
Brown’s attorney raise the court’s failure to hold a hearing
to consider the impact of Ms. Young’s statements on
the jury.
On January 2, 2004, Brown filed a pro se petition for post-
conviction relief, which he amended on August 21, 2006.
In pertinent part for our consideration, Brown’s petition
provided that he was denied effective assistance of
both trial and appellate counsel. He contended that his
trial counsel failed to act as counsel guaranteed by the
Sixth Amendment due to his failure to request a hearing
following Ms. Young’s comments. He argued that his
appellate attorney’s performance was similarly deficient
for not raising this issue on appeal. Brown further asserts
that both counsels’ deficient performances resulted in
prejudice.
The Howard County Circuit Court denied Brown’s
petition for post-conviction relief, finding that Brown
could only speculate as to whether any juror actually
heard Ms. Young’s comments. It also found that it was
unclear what her in-court remark even referred to. The
Indiana Court of Appeals affirmed. Brown v. State, 874
N.E.2d 651, 2007 WL 2917084 (Ind. App. Oct. 9, 2007). In
applying the Strickland standard, which requires a
6 No. 08-3151
showing of both deficient performance and prejudice,
the appellate court declined to examine whether
Ms. Young’s out-of-court statement was prejudicial
because there was no showing that any juror either
heard the remark or was made aware of it. Expressing
skepticism as to whether any juror heard Ms. Young’s in-
court remark, the Indiana Court of Appeals also ob-
served a lack of evidence pertaining to the statement’s
prejudicial effect. This being the case, the court expressed
doubt whether the trial court would have granted a
request for a hearing.
Brown then filed a petition for a writ of habeas corpus
with the United States District Court for the Southern
District of Indiana. Since the district court found that
the Indiana Court of Appeals correctly recognized and
applied the Strickland standard, it denied Brown’s peti-
tion. We granted his motion for a certificate of appeal-
ability on September 30, 2008. Brown now appeals the
decision of the district court not to grant his petition
for a writ of habeas corpus. For the reasons explained
below, we affirm.
II. DISCUSSION
The standard by which we review a state court’s deci-
sion on a federal constitutional issue is a familiar one.
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), we may grant habeas relief only if
the state’s adjudication of the issue: (1) resulted in a
decision that was contrary to, or involved an unreasonable
No. 08-3151 7
application of clearly established federal law, as deter-
mined by the Supreme Court of the United States or
(2) resulted in a decision that was based on an unreason-
able determination of the facts in light of the evidence
presented in the state-court proceeding. 28 U.S.C.
§ 2254(d). We review the decision of the last state court
to review the issue. See Lucas v. Montgomery, 583 F.3d
1028, 1030 (7th Cir. 2009).
For the purposes of habeas corpus review, “[c]learly
established federal law” means “the governing principle
or principles set forth by the Supreme Court at the time
the state court renders its decision.” Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003). A state-court decision is “contrary
to” federal law if the state court either erroneously laid
out governing U.S. Supreme Court precedent, or,
having identified the correct rule of law, decided a case
differently than a materially factually indistinguishable
Supreme Court case. 28 U.S.C. § 2254(d)(1); Sutherland v.
Gaetz, 581 F.3d 614, 616 (7th Cir. 2009). An “unreasonable
application” of U.S. Supreme Court precedent occurs
when a state court identifies the correct governing legal
rule but unreasonably applies it to the facts of a case or
if the state court either unreasonably extends a legal
principle from the Supreme Court’s precedent to a new
context in which it should not apply or unreasonably
refuses to extend that principle to a new context in
which it should apply. Gaetz, 581 F.3d at 616.
Whether a state ruling runs afoul of these AEDPA
standards is a legal determination, and, as such, we
review the district court’s determination de novo. See
Sweeney v. Carter, 361 F.3d 327, 330 (7th Cir. 2004); see also
8 No. 08-3151
Gaetz, 581 F.3d at 616. However, we review the district
court’s factual determinations for clear error. See Smith v.
Grams, 565 F.3d 1037, 1043 (7th Cir. 2009).
A. The State Court Correctly Determined That Peti-
tioner Did Not Receive Ineffective Assistance of
Trial Counsel
Brown contends that he received ineffective assistance
of counsel, in violation of the Sixth Amendment, because
his trial attorney failed to request a hearing in light of
Ms. Young’s two statements. To prevail, Brown “must
show that counsel’s performance was deficient, and that
the deficiency prejudiced the defense.” Wiggins v. Smith,
539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 687).
To demonstrate this deficiency, he “must show that coun-
sel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688; Wiggins, 539
U.S. at 521. That objective standard of reasonableness, in
turn, is determined by prevailing professional norms.
Strickland, 466 U.S. at 688. “We assess counsel’s work as
a whole, and ‘it is the overall deficient performance,
rather than a specific failing, that constitutes the ground
of relief.’ ” Pole v. Randolph, 570 F.3d 922, 934 (7th Cir.
2009) (citing Peoples v. United States, 403 F.3d 844, 848 (7th
Cir. 2005)). “The bar for establishing that a state court’s
application of the Strickland standard was ‘unreasonable’
is a high one, and only a clear error in applying
Strickland will support a writ of habeas corpus.” Allen v.
Chandler, 555 F.3d 596, 600 (7th Cir. 2009).
No. 08-3151 9
Brown grounds his claim of ineffective assistance of trial
counsel on the latter’s election not to request a hearing
to determine the effect of Ms. Young’s in-court and out-of-
court statements. We consider each statement in turn.
A. Ms. Young’s In-Court Statement
Would an objectively reasonable attorney necessarily
request a hearing in light of Ms. Young’s proclamation
from the gallery that “the situation is racist”? We do not
believe so. Given that the victim, Charles Young, Jr. and
the accused were both African-American, the meaning of
the challenged statement is equivocal. It is not at all clear
how a jury would perceive the assertion in a manner
injurious to Brown. Were a juror to interpret the remark
as implying that the trial were biased against the
defendant due to this race, this would seem to be a boon
to Brown. But to the extent a juror viewed the comment
as reflecting on the treatment given Young by the authori-
ties, then the statement was wholly irrelevant to
Brown’s guilt or innocence. Notably, Brown himself
speculated on cross-examination that Ms. Young was
expressing her displeasure at the police department’s
treatment of her son. Under either interpretation,
Ms. Young’s statement that the situation was racist is
ambiguous and apparently innocuous.
Faced with such a remark, which the jury may or
may not have heard, it would be entirely reasonable
for counsel to elect not to pursue the matter. An able
attorney might well conclude that his client’s cause
10 No. 08-3151
would best be served by not drawing the jury’s attention
to issues that are largely, if not completely, irrelevant to
his client’s guilt or innocence. We cannot find that
Brown’s trial attorney acted unreasonably, particularly
in light of the fact that we adopt “a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S.
at 689.
Brown seeks to escape this conclusion by characterizing
Ms. Young’s comment as extraneous and contending
that the Supreme Court’s holding in Remmer v. United
States thus compels a hearing. 347 U.S. 227, 229 (1954).
Brown overstates the reach of the Court’s decision in
Remmer. In that case, a juror was told by an unnamed
person that he could profit by finding for the petitioner.
The district court denied a motion for a new trial and the
Court of Appeals affirmed, finding that the petitioner
had not demonstrated prejudice. The Supreme Court
reversed, holding:
In a criminal case, any private communication, contact,
or tampering directly or indirectly, with a juror
during a trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively
prejudicial, if not made in pursuance of known rules
of the court and the instructions and directions of the
court made during the trial, with full knowledge of
the parties.
Remmer, 347 U.S. at 229. Assuming that the jury in fact
heard Ms. Young’s in-court remark, Remmer raises an
important question: did her statement constitute the
kind of unauthorized contact that triggers a presumption
No. 08-3151 11
of prejudice and thus requires a hearing? The respondent
contends that the utterance lacks the private nature of
the communication present in Remmer and therefore
does not compel a hearing. There is some force to this
suggestion, given the Supreme Court’s reference to any
“private” communication. We note, however, that at least
one prior decision of this Court might be read to suggest
otherwise. See Evans v. Young, 854 F.2d 1081, 1082-84 (7th
Cir. 1988) (suggesting that an in-court statement made
within earshot of the jury can require a Remmer hearing,
even if the comment were not made in private).
Regardless, Ms. Young’s assertion did not necessitate
a Remmer hearing. This is because the comment was not
one that would affect a reasonable juror’s deliberation as
to whether Brown was guilty or innocent. See Whitehead
v. Cowan, 263 F.3d 708, 724-25 (7th Cir. 2001). Brown
appeals to an excessively literal interpretation of the
Supreme Court’s pronouncement that “any private com-
munication . . . with a juror during a trial” is deemed
prejudicial. The relevant communication must, of course,
be read in its context (and the content of the communica-
tion might not be known if it were in fact completely
“private”). See Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.
2005). In this respect, we have repeatedly held that no
Remmer hearing is necessary when the challenged state-
ment is both ambiguous and innocuous. See Whitehead,
263 F.3d at 724-25; see also United States v. Al-Shahin, 474
F.3d 941, 949 (7th Cir. 2007). As we have explained
above, Ms. Young’s statement can be so characterized.
Therefore, no Remmer hearing was necessary in light of
Ms. Young’s in-court remark and it was reasonable for
12 No. 08-3151
Brown’s attorney to elect not to request one. See also
United States v. Gallardo, 497 F.3d 727, 736 (7th Cir. 2007)
(“In order for a hearing to be required, ‘the extraneous
communication to the juror must be of a character
that creates a reasonable suspicion that further inquiry
is necessary to determine whether the defendant was
deprived of his right to an impartial jury.’ ”) (quoting
Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005)).
In light of the above, we have little trouble finding
that Brown’s trial attorney’s performance did not fall
below an objective standard of reasonableness. For
much the same reason, we also find that Brown
cannot establish prejudice. The challenged statement is
ambiguous and innocuous. In addition, the evidence
against Brown seems strong. Even putting aside the
questions of whether the jury even heard the remark and
construed it in a prejudicial way, the inculpatory
evidence detracts from his contention that Ms. Young’s
statement undermines confidence in the outcome of the
trial. See, e.g., Whitehead, 263 F.3d at 724 (“Finally, the
evidence of defendant’s guilt was overwhelming, and
this ‘militates against a finding that the introduction of
the disputed [material] affected the jury’s verdict.’ ”)
(citing United States v. Paneras, 222 F.3d 406, 411 (7th Cir.
2000)).
The state court’s conclusion that Brown received
effective assistance of counsel did not, then, constitute an
unreasonable application of federal law, as established
by the Supreme Court. Nor did it amount to an unrea-
sonable determination of the facts in light of the evidence
presented in the state-court proceeding.
No. 08-3151 13
B. Ms. Young’s Out-of-Court Statement
We now move to consider Ms. Young’s more serious,
out-of-court statement that the courthouse should be
treated similarly to the World Trade Center and ought to
be bombed. The state court declined to consider whether
this declaration presented a risk of prejudice because
Brown had made no showing that any juror heard or was
made aware of Ms. Young’s out-of-court proclamation.
Brown v. State, 874 N.E.2d 651, at *4 (2007) (citing
Worthington v. State, 405 N.E.2d 913, 916 (Ind. 1980), cert.
denied, 451 U.S. 915 (1981) (“Absent a basis for believing
that the jury may have been subjected to improper out-of-
court stimuli, there is no need to employ the procedure
outlined in Lindsey.”)).
The state court’s conclusion in this regard was not
contrary to, nor did it involve an unreasonable applica-
tion of, clearly established federal law, as established by
the U.S. Supreme Court. Indeed, the state court’s finding,
which was based on Brown’s failure to introduce
evidence that a juror perceived the comments, finds
support in several decisions of the U.S. courts of appeals.
These decisions suggest the absence of a clearly estab-
lished federal law to the contrary. See, e.g., United States v.
Davis, 15 F.3d 1393, 1412 (7th Cir. 1994) (observing that
“[o]nce a defendant had made a sufficient showing that a
juror may have been improperly influenced, the court must
ascertain whether the juror was or was not tainted”) (emphasis
in original); United States v. Rosales, 680 F.2d 1304, 1306
(10th Cir. 1981) (no abuse of discretion to decline to hold
a hearing where there was no evidence that any juror
other than the one discharged heard the extraneous
14 No. 08-3151
remarks); United States v. Schoppert, 362 F.3d 451, 459 (8th
Cir. 2004) (“A defendant must, moreover, make some
effort to support an allegation of jury taint before an
evidentiary hearing or declaration of a mistrial will be
appropriate. A bald assertion of taint will not suffice; the
defendant needs to make a showing that his allegation
is credible and that the prejudice alleged is serious enough
to warrant whatever action is requested.”); King v.
Bowersox, 291 F.3d 539, 541 (8th Cir.), cert. denied, 537 U.S.
1093 (2002) (finding no need to embark on a Remmer
analysis in the absence of a showing that the jury saw
or was aware of hallway display in memory of victim).
Here, Brown does not even allege that a juror was privy
to Ms. Young’s remarks on the courthouse steps. Rather,
he merely alleges that a juror could have heard her state-
ment outside the courthouse. This is an insufficient basis
for establishing that a Remmer hearing must be con-
ducted. Therefore, the Indiana Court of Appeals’ election
not to countenance Brown’s claim of prejudice was not
inconsistent with, nor did it involve an unreasonable
application of, clearly established federal law.
Assuming, arguendo, that there were some modicum
of evidence that a juror heard Ms. Young’s threat to the
courthouse, it is not clear that the remark would have
prejudiced Brown. Although evidently an abhorrent
remark, particularly in the days following the attacks of
9/11, it would not seem to weigh on Brown’s perceived
guilt or innocence in the eyes of the jury. As in Whitehead,
“[t]he mother did not attempt to persuade the jury, nor
did she provide them with any extraneous information
No. 08-3151 15
about the facts of the case. . . . While understandably
emotional, the statement was not prejudicial.” 263 F.3d
at 724. In short, stating that the courthouse should be
bombed does not readily translate into an aspersion
on the defendant. It is therefore akin to the kind of am-
biguous and innocuous remark that does not require
a Remmer hearing. Id. at 724-25.
B. The State Court Correctly Determined That Peti-
tioner Did Not Receive Ineffective Assistance of
Appellate Counsel
Brown also contends that he received ineffective assis-
tance of appellate counsel. As should be clear from the
preceding discussion, Ms. Young’s statements were not
of the kind that would warrant an inference of prejudice.
Nor is there evidence that any juror was privy to
Ms. Young’s out-of-court statement. Just as it was reason-
able for Brown’s trial attorney not to request a hearing, so
was it reasonable for his appellate attorney to focus on
issues of import to the jury’s guilty verdict and the
trial court’s imposed sentence.
Appellate counsel’s performance is similarly measured
against that of an objectively reasonable attorney. See Lee v.
Davis, 328 F.3d 896, 900 (7th Cir. 2003). An appellate
counsel’s performance is deficient if she fails to argue an
issue that is both obvious and clearly stronger than the
issues raised. Martin v. Evans, 384 F.3d 848, 851 (7th Cir.
2004) (citing Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir.
2003)). However, counsel is not required to raise every
16 No. 08-3151
nonfrivolous issue on appeal. Martin, 384 F.3d at
852 (citing Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996)).
To prevail, Brown must show that there is a reasonable
probability that the issue his appellate attorney failed
to raise would have altered the outcome of the appeal,
had it been raised. Lee, 328 F.3d at 901. Petitioner
cannot make such a showing and his petition must fail
accordingly.
There is no evidence that any juror heard Ms. Young’s
threatening remarks outside the courthouse. Even if there
were such evidence, those threats were directed at the
courthouse and did not cast an aspersion of guilt on the
defendant. Ms. Young’s in-court assertion that the situa-
tion was racist was ambiguous and innocuous, given
the context within which the remark was made. This
being the case, there was no need for a hearing and reason-
able appellate counsel could wisely disregard Ms. Young’s
statements in favor of issues that weigh on Brown’s guilt
and sentence. Although Brown offers Oswald v. Bertrand,
in support of his position, that case simply provides
that “the greater [the] probability [of bias], the more
searching the inquiry needed to make reasonably sure
that an unbiased jury is impaneled.” 374 F.3d 475, 480 (7th
Cir. 2004). In the present case, evidence of bias is limited
to the point of being nonexistent. This being the case,
Oswald supports the decision of Ward’s appellate
counsel not to raise the trial court’s failure to hold a
hearing.
The Indiana Court of Appeals correctly held that,
because Ms. Young’s statements did not present a sub-
No. 08-3151 17
stantial risk of prejudice, Brown could not establish that
his appellate attorney’s performance was deficient.
III. CONCLUSION
The Indiana Court of Appeals’ finding that Brown
received effective assistance of trial and appellate counsel
was not contrary to, nor did it involve an unreasonable
application of, clearly established federal law, as estab-
lished by the U.S. Supreme Court. Nor was its finding
based on an unreasonable determination of the facts.
The in-court statement of one victim’s mother to the
effect that the situation was racist was ambiguous in its
import and, in any event, innocuous. Her out-of-court
proclamation that the courthouse should be bombed was
of course more serious. Yet, even this assertion bears no
obvious relevance to the question of the defendant’s
innocence or guilt. More important still, Brown has failed
to provide even a scintilla of evidence that any juror
was privy to this remark. The judgment of the district
court is therefore
A FFIRMED.
3-17-10