Julius Evans v. Alex Jones

996 F.3d 766

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 5, 2021
• Docket: 19-3466
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-3466 JULIUS EVANS, Petitioner-Appellee, v.

ALEX JONES, Respondent-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14-cv-03930 — Rebecca R. Pallmeyer, Chief Judge. ____________________

ARGUED SEPTEMBER 25, 2020 — DECIDED MAY 5, 2021 ____________________

Before RIPPLE, BRENNAN, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. An Illinois jury convicted Julius Ev- ans of the first-degree murder of Moatice Williams, who was killed in a drive-by shooting in Chicago. Only one eyewit- ness—Andrew Jeffers—connected Evans to the shooting. Jef- fers’s account of the shooting dramatically changed over time. Jeffers initially only provided a few general identifying de- tails of the shooter, and did not specifically identify any of the shooters. Eleven months later, however, the police 2 No. 19-3466

approached him while he was incarcerated and Jeffers then identified Evans as the shooter. Then, at trial, Jeffers recanted that identification: he testified that he did not see the identity of the shooter but had identified Evans because the police told him to. During closing arguments, the prosecutor argued that Jef- fers’s trial testimony—that he did not see Evans shoot Wil- liams—was false and the jury should disbelieve it because Jef- fers only changed his story after being paid a visit by a de- fense investigator working for Evans’s co-defendant, Mario Young, who was a known gang member. Evans appealed his conviction, asserting that the prosecutor’s statements during closing argument deprived him of his right to a fair trial. He contended that the prosecutor’s statements were improper because there was insufficient evidence in the record to sup- port them, and that they were prejudicial because Jeffers’s credibility was of the utmost importance given the lack of other evidence against Evans. The state appellate court con- cluded that there was sufficient evidence in the record to sup- port the prosecutor’s statements during closing argument, and so they were not improper. Evans unsuccessfully petitioned the state court for post- conviction relief. He then filed a habeas petition in federal court, which the district court granted. Upon a close examina- tion of the record and giving deference to the state appellate court’s findings, we find that the state appellate court’s deter- mination that the prosecutor’s statements were proper was objectively unreasonable. While we “do not lightly grant pe- titions for a writ of habeas corpus brought by state prisoners,” Cook v. Foster, 948 F.3d 896, 899 (7th Cir. 2020), we agree with the district court that the facts of this case compel the No. 19-3466 3

conclusion that Evans was deprived of his right to a fair trial and he is entitled to relief. We therefore affirm. I. Background A. Factual Background On the evening of August 23, 1996, someone inside a vehi- cle opened fire on West Washington Street in Chicago. The bullets hit and instantly killed Moatice Williams, who had been sitting on his bicycle on the sidewalk. After arriving on the scene, Chicago Police Officer James Cianella interviewed two individuals who had witnessed the crime: Margaret Win- ton and Andrew Jeffers. Police did not identify any additional witnesses. Winton told Officer Cianella that she had been selling goods across the street from Williams. Right before the shoot- ing, she had observed Jeffers and a man named John “pitching quarters”—trying to see who could get the quarters closest to the line on the sidewalk—two or three feet from Williams. She then saw a gray car with tinted windows drive down the street, turn around the block, then proceed for a second time down West Washington Street. Someone then fired seventeen or eighteen gunshots from the front passenger-side window. Winton saw three men in the car (including the shooter) but did not see their faces and could not identify them. Jeffers told Officer Cianella that he saw the vehicle stop and fire shots, and then drive east. There were three black men in the car, one of whom was wearing a white t-shirt. He did not provide any other identifying information. 4 No. 19-3466

B. Investigation Eleven months later—in July 1997—two Chicago Police Department “Cold Case Squad” detectives visited Jeffers in prison to get his recollection of the shooting. Jeffers was serv- ing a prison sentence for an unrelated drug offense at the time. At trial, the detectives testified that during this visit they showed Jeffers a six-person photo array and asked whether he recognized any of the individuals from the night of the shooting. By that stage of the investigation, the detectives had identified three primary suspects: Evans, Mario Young, and Royce Grant. Their photographs made up three of the six pho- tos in the array. The detectives testified that Jeffers identified Evans and Young—Evans as the shooter and Young as the front seat passenger in the vehicle. Jeffers initialed the backs of the photographs of Evans and Young to certify having iden- tified them. Three months later, the detectives paid Jeffers another visit—this time, to a boot camp where Jeffers was serving the remainder of his prison sentence. Assistant State’s Attorney Lorraine Scaduto accompanied. At trial, Scaduto testified that she showed Jeffers two photographs, one of Evans and one of Young. According to Scaduto, Jeffers again identified Evans as the shooter and Young as the vehicle’s front passenger. Sca- duto asked Jeffers to describe the events of the shooting and requested permission to transcribe his recollection into a writ- ten statement. Jeffers agreed. According to Jeffers’s written statement, on the night of the shooting he was pitching quarters with John across the street from where he lived on West Washington Street. The victim sat on his bicycle watching the game. Jeffers “bent down to pick up some quarters” and heard “four or five No. 19-3466 5

gunshots.” He looked up and “saw a gray Oldsmobile Cut- lass, two-door” driving slowly down the street. Jeffers saw three men in the car: one man was driving, another was lean- ing forward in the front passenger seat, so that the third man could reach over him and shoot toward the street from the front passenger window. The next day, Jeffers was pitching quarters with John again in the same location. Evans and Young—whom he recognized from the Oldsmobile Cutlass the day before—drove up in a different car. Evans apologized to John for having shot at him the day before, explaining that they mistakenly thought they were shooting at members of a rival gang. Jeffers signed the statement to certify that he had given the statement “freely and voluntarily and that no threats or promises were made to him in exchange for his statement.” The police arrested Evans, Young, and Grant on Novem- ber 14, 1997. A few weeks later, the detectives called upon Jef- fers to identify Evans and Young from an in-person lineup. Jeffers had been released from boot camp and was serving the remainder of his sentence on house arrest. At trial, a detective testified that Jeffers was shown a six-person lineup consisting of Evans, Grant, Young, and three non-suspects. The detective testified that Jeffers again identified Evans as the shooter and Young as the man sitting in the front seat. Jeffers met with Assistant State’s Attorney Ann Lorenz later that day. Lorenz asked Jeffers to tell her what he had wit- nessed in relation to the shooting. According to Lorenz, Jeffers recounted a version of events consistent with his written state- ment. Lorenz testified that she showed Jeffers two photo- graphs, one of Evans and one of Young. Jeffers confirmed to Lorenz that those were the men he saw in the Oldsmobile the 6 No. 19-3466

night Williams was murdered. Jeffers then testified before a grand jury that same day. His testimony was consistent with his handwritten statement. C. Trial Court Proceedings At Evans’s trial in June 2000, Jeffers recounted a much dif- ferent version of what had happened. Despite the accounts he gave during the investigation nearly three years prior, Jeffers testified at trial that although he was pitching quarters on West Washington Street at the time of the murder, he did not actually see the shooting. Instead, as soon as he heard gun shots, he ducked and did not look up again until after the fir- ing stopped. He testified that he did not know the shots had been fired from a passing car, he did not see the car, and he certainly did not see who shot and killed Williams. The prosecutor pressed Jeffers about the statements he gave the detectives and identifications he made of Evans and Young. Jeffers testified initially that he never identified pho- tographs of Evans and Young, never signed a handwritten statement of his account of the shooting, and never met with Assistant State’s Attorney Lorenz. Jeffers testified that he had never seen Evans before the trial. Eventually, Jeffers admitted identifying Evans and Young from the lineup, but only because the detectives told him to, not because he recognized them from the night of the shoot- ing. According to Jeffers, the detectives told him to “stick with the story, tell the story,” but Jeffers did not elaborate further on the “story” he was told to “stick with.” Jeffers testified that the story of what he saw was simple, he: “Be[nt] down pitch quarter, shots were fired. Ran across the street, called the am- bulance. Ambulance came, detectives grabbed me, snatched No. 19-3466 7

me, threw me in the car.” Jeffers testified that any other details attributed to his story were made up by the detectives— “[t]hey added all that stuff on.” On cross-examination, Jeffers testified that he was not be- ing given anything in exchange for his trial testimony, nor had anyone threatened him to testify a certain way. Jeffers testified again on redirect examination that no one threatened or in- timidated him with respect to his trial testimony: Q: It’s your testimony today that no gang members or no one intimidated you into giving this testimony, is that right? A: Right. The prosecutor then asked Jeffers whether a private investi- gator working for Mario Young visited him before trial to speak with him about his testimony: Q: But after you were released from boot camp you got a visit from someone working for Mario Young, the co-defendant, didn’t you? A: No. Q: Didn’t an investigator working for Mario Young’s lawyer come to your home and ask you questions about what happened and talk to you about the shooting? A: No. On re-cross examination, defense counsel attempted to clarify Jeffers’s testimony about whether he had spoken with an in- vestigator working for Young: 8 No. 19-3466

Q: The state’s attorney just asked you if you spoke to an investigator for Mario Young when you were released from custody, is that correct, sir? A: When I was released from custody. Q: Right, when you were out. A: Right. Q: And did you tell them, did you stick with the story with that investigator, sir? A: No. Q: Pardon me, sir? A: No. Q: So you didn’t tell that person what you told the grand jury, correct? A: Yeah. Q: Because you didn’t stick with the story? A: Right. On further direct examination, the prosecutor again asked if Jeffers had been visited by an investigator working for Young: Q: I thought you just said you don’t remem- ber being visited by an investigator for Mario Young, the co-defendant, after you were re- leased from custody; didn’t you just say that ten minutes ago? A: You asked me if she came to my house. Q: Who is it that came and visited you? No. 19-3466 9

A: Didn’t no one come to my house. Q: Where did they visit you at? A: I don’t remember. She didn’t come to my house. Q: But you don’t remember where? … A: Whoever she was, she didn’t come to my house, whatever you say. Q: But you know it was an [i]nvestigator who worked for Mario Young, the defendant in this case, didn’t you? A: No. Q: You didn’t know that? A: No. Q: Who did you think it was? A: I don’t know who it was. She just asked me questions and I talked to her. Q: Asked you questions about the shooting, right? A: Yeah. Q: And that is when you decided to start saying that you didn’t see who did the shooting, right? A: I told her the truth. This concluded Jeffers’s testimony. No further evidence was presented during trial about an investigator visiting Jeffers. 10 No. 19-3466

Before proceeding with closing arguments, the court in- formed the jury that “[c]losing arguments are made by the at- torneys to discuss the facts and circumstances in the case and should be confined to the evidence and to reasonable infer- ences to be drawn from the evidence.” It further instructed the jury that “[a]ny argument made by the attorneys which is not based on the evidence should be disregarded.” With Jeffers being the only witness able to identify the men involved in the shooting, the closing arguments centered on his credibility. The state’s initial closing argument urged the jury to credit Jeffers’s earlier statements over his trial testi- mony. Defense counsel argued the opposite—encouraging the jury to believe Jeffers’s testimony that he did not witness the shooting and could not identify the shooter. In the state’s rebuttal closing argument, the prosecutor at- tempted to explain the change in Jeffers’s testimony. The prosecutor argued that Jeffers provided very little infor- mation to law enforcement at the crime scene out of fear of retaliation by gang members. In the prosecutor’s view, Jeffers only felt safe enough to tell the detectives what he witnessed and identify Evans when he was in state custody and “away from the street where the gang bangers dominate.” The pros- ecution argued that the change in Jeffers’s account could be traced to a visit from an investigator working for Young: Think about when the story changed. Andrew Jeffers didn’t just identify Julius Evans and Mario Young one time. He identified him four times …. It only changed after he was released from custody when lo and behold he gets a visit from an investigator working for the lawyer for Mario Young, the defendant’s co-offender. No. 19-3466 11

Defense counsel objected and the court overruled the objec- tion without explanation. The prosecutor continued: An investigator comes to visit him, and that per- son apparently interviews Andrew Jeffers. For what purpose? You can draw your own conclu- sion. Andrew Jeffers now knows when the in- vestigator visits him they know how to find him. The court overruled another objection, and the prosecutor went on: They know where he is at. The gang bangers that executed Moatice Williams on the street right next to him know how to find Andrew Jef- fers. They can come and see him whenever they want. All of a sudden after getting a visit from an investigator working for them— Defense counsel objected again and this time the court sus- tained. The prosecutor nonetheless continued: For Mario Young, his co-defendant, his co-of- fender, all of a sudden Andrew Jeffers can’t re- member his name. He can’t remember a damn thing. ... What a surprise. What a surprise that Andrew Jeffers after being visited by Mario Young’s investigator would suddenly forg[e]t everything that he saw when–on the night of August 23, 1996, when Moatice Williams was gunned down by this defendant. ... That’s why Andrew Jeffers was such a pain when he was on the witness stand yesterday. You can draw your own conclusions. Andrew Jeffers now knows 12 No. 19-3466

that Mario Young or his investigator knows how to find Andrew Jeffers. The prosecutor made a last attempt to bolster Jeffers’s out-of- court statements, and after the court overruled another objec- tion, he asserted: Andrew Jeffers was one hundred percent sure and entirely consistent in his identifications of what happened and who he saw do it … until he was paid a visit by Mario Young’s investiga- tor … that’s when suddenly he started to los[e] his memory which is not a big surprise or shouldn’t be a big surprise to anybody. The prosecutor concluded and the court instructed the jury. With respect to the parties’ closing statements, the court stated: Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and should be confined to the evidence and to reasonable inferences to be drawn from the evi- dence. Neither opening statements nor closing arguments are evidence. Any statement or argu- ment made by the attorneys which is not based on the evidence should be disregarded. The jury issued a guilty verdict the following day. The trial court sentenced Evans to life in prison. D. Direct Appeal Evans appealed his conviction to the Illinois Appellate Court. He argued that the prosecution engaged in misconduct by arguing in its rebuttal closing statement that an No. 19-3466 13

investigator working for Evans’s co-defendant, Mario Young, caused Jeffers to recant his earlier statements. 1 The appellate court upheld the conviction. The state appellate court determined that the prosecutor “did not invent an allegation of witness intimidation without any basis in the record.” Instead, the prosecutor “made a rea- sonable inference from the evidence which demonstrated that Jeffers dramatically changed his testimony at trial after receiv- ing a visit from an investigator sent by codefendant Young, a known gang member.” Finding adequate support in the rec- ord for the prosecutor’s comments, the appellate court held the statements did not substantially prejudice Evans. The appellate court reasoned the record reflected that Jef- fers identified Evans as the shooter on multiple occasions, provided a written statement describing what he witnessed on the night of the murder, testified against Evans before a grand jury, and only “abruptly recanted after being visited by an investigator sent by codefendant Young.” The state court interpreted trial testimony as reflecting that “Jeffers admitted that he did, in fact, meet with [Mario Young’s] investigator.” The court further reasoned that Jeffers’s explicit testimony that he was not threatened by Evans did not render improper the prosecutor’s inference that Young’s investigator caused Jeffers to recant his prior statements at trial. As an initial mat- ter, the court explained, Jeffers “did not state, nor was he asked, whether he was threatened by the investigator.” More importantly to the appellate court, the record reflected that

1 Evans also appealed his conviction on other grounds that are no longer at issue. Accordingly, we will not discuss them further. 14 No. 19-3466

“Jeffers identified defendant as the shooter in this case on five separate occasions and that his testimony only changed after he was released from custody and visited by an investigator.” Given that “the investigator was sent by codefendant Young,” and Evans and Young “worked together to murder the vic- tim,” the prosecutor reasonably invited the jury “to infer that Jeffers’s reluctance to testify was the result of fear invoked by the investigator’s visit.” Evans filed a petition for leave to appeal, and the Illinois Supreme Court denied his petition without comment on De- cember 5, 2002. E. Post-Conviction Proceedings After unsuccessfully petitioning the state courts for post- conviction relief, Evans filed a pro se petition for writ of ha- beas corpus pursuant to 28 U.S.C. § 2254 in federal court. As relevant to this appeal, Evans argued that the prosecutor’s ref- erences to Young’s investigator deprived him of his right to a fair trial. After appointing Evans counsel, the district court agreed and granted Evans’s petition. According to the court, it was objectively unreasonable for the state court to conclude that the prosecutor’s statements were supported by the record or based on a reasonable inference of the evidence in the rec- ord. The court thus determined that the statements were im- proper and potentially prejudicial, and had deprived Evans of his right to a fair trial. This appeal followed. II. Discussion We review the district court’s grant of a habeas petition de novo, “but our inquiry is an otherwise narrow one.” Schmidt v. Foster, 911 F.3d 469, 476 (7th Cir. 2018) (en banc). Under the Antiterrorism and Effective Death Penalty Act of 1996 No. 19-3466 15

(AEDPA), a federal court may grant habeas relief only when a state court adjudication on the merits: (1) “was contrary to, or involved an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable de- termination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). Only Supreme Court precedent—not circuit court precedent—con- stitutes clearly established federal law in § 2254 habeas cases. See Parker v. Matthews, 567 U.S. 37, 48–49 (2012). A state court unreasonably applies clearly established federal law if it “cor- rectly identifies the governing legal rule from Supreme Court case law, but unreasonably applies it to the facts of the case.” Clark v. Lashbrook, 906 F.3d 660, 664 (7th Cir. 2018). Darden v. Wainwright, 477 U.S. 168 (1986), provides the clearly established federal law for Evans’s prosecutorial mis- conduct claim. 2 See Parker, 567 U.S. at 45. Under Darden, a prosecutor’s improper statements deprive a criminal defend- ant of his right to a fair trial if the remarks “so infected the trial with unfairness as to make the resulting conviction a de- nial of due process.” Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A defendant seeking relief under Darden embarks on an “uphill battle; ‘improper statements during closing arguments rarely constitute

2 The Illinois Appellate Court did not explicitly cite Darden in its anal- ysis of Evans’s prosecutorial misconduct claims—instead, it relied on state-court precedent to conduct a Darden-like analysis. We agree with the district court that the state court’s failure to specifically discuss Darden does not negate the applicability of Darden to this case. See Evans v. Lash- brook, 2019 WL 6117585 at *6 n.7 (N.D. Ill. Nov. 18, 2019) (citing Ruvalcaba v. Chandler, 416 F.3d 555, 565 (7th Cir. 2005)). 16 No. 19-3466

reversible error.’” United States v. Klemis, 859 F.3d 436, 442 (7th Cir. 2017) (quoting United States v. Wolfe, 701 F.3d 1206, 1211 (7th Cir. 2012)). Darden is a “highly generalized standard,” Parker, 567 U.S. at 49, and its application “can demand a substantial element of judgment.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Our analysis in this case thus requires that we acknowledge that “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. We also note, however, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judi- cial review.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003). In applying Darden, we must “first look to the challenged comments to determine whether they were improper.” Ellison v. Acevedo, 593 F.3d 625, 636 (7th Cir. 2010). Only if the state- ments are improper must we decide if they “so infected the trial with unfairness” as to have denied the defendant his due process right to fair trial. Id. (quoting Darden, 477 U.S. at 181). A. Whether the Prosecutor’s Statements were Improper It is well established that a prosecutor may not reference facts not before the jury to bolster a witness’s credibility. See United States v. Alviar, 573 F.3d 526, 542 (7th Cir. 2009). A pros- ecutor may, however, “argue reasonable inferences from the evidence that the jury has seen and heard.” United States v. Waldemer, 50 F.3d 1379, 1383 (7th Cir. 1995). Evans challenges seven statements from the prosecutor’s rebuttal closing argument as improper. The essence of each challenged statement is the same: the prosecutor argued that Jeffers recanted his identification of Evans as the shooter dur- ing his trial testimony because an investigator working for co- No. 19-3466 17

defendant Mario Young visited him before that testimony. The prosecution implied that the visit intimidated Jeffers be- cause Young now knows where he lives. According to Evans, these statements were improper because there is no evidence in the record from which the prosecutor could reasonably in- fer that an investigator who worked for Young visited Jeffers. The Illinois Appellate Court disagreed and concluded that the prosecutor’s remarks were proper because Jeffers had tes- tified that he did, in fact, meet with an investigator sent by Young. Upon closely examining the content of Jeffers’s testi- mony, however, we conclude that the Illinois Appellate Court’s finding that Jeffers so testified misstates the record and lacks evidentiary support. We thus agree with Evans that the state appellate court’s determination that the prosecutor’s comments were proper is objectively unreasonable. When Jeffers was initially questioned by the prosecutor about a visit from an investigator working for Young, he twice explicitly denied such a visit occurred. Later, on re-cross, Ev- ans’s counsel asked Jeffers if he recalled the prosecutor’s ques- tions. In response, Jeffers testified that he did, in fact, meet with someone about the shooting, but he did not testify that the person was an investigator sent by Young. On further re- direct, the prosecutor questioned Jeffers about why he origi- nally denied that he was visited by an investigator who worked for Young. Jeffers testified that he spoke to a woman about the case, but that he did not know who she was: Q: But you know it was an [i]nvestigator who worked for Mario Young, the defendant in this case, didn’t you? A: No. 18 No. 19-3466

Q: You didn’t know that? A: No. Q: Who did you think it was? A: I don’t know who it was. She just asked me questions and I talked to her. The Illinois Appellate Court acknowledged that Jeffers in- itially denied being visited by an investigator who worked for Young. Nonetheless, it determined that during re-cross, Jef- fers admitted that he spoke to an investigator who worked for Young. This interpretation mischaracterizes Jeffers’s testi- mony on re-cross and seemingly ignores his clarification on re-direct that he did not know who the investigator was or who she worked for. While Jeffers admitted to speaking with an investigator, he repeatedly denied that this investigator worked for Young. The Illinois Appellate Court’s finding to the contrary lacks evidentiary support, and so its determina- tion that the prosecutor’s comments were based on a reason- able inference from Jeffers’s testimony—and so were proper—is objectively unreasonable. First, focusing on Jeffers’s testimony on re-cross, we rec- ognize that his indirect responses to certain of defense coun- sel’s questions make the transcript somewhat difficult to fol- low. But there is no reasonable reading of this exchange in which Jeffers admits to speaking with an investigator work- ing for Mario Young. Instead, the testimony establishes only that Jeffers spoke to an investigator to whom he told the “story” consistent with his testimony at trial, and inconsistent with his prior statements to police. Second, even if Jeffers’s testimony on re-cross was ambig- uous as to whether the investigator worked for Young, his No. 19-3466 19

testimony on re-direct clarified the issue. The prosecutor asked Jeffers why he had previously denied being visited by an investigator who worked for Young. Jeffers explained that he had spoken to a woman about the case but flatly denied that he had any knowledge that she had a connection to Young. The Illinois Appellate Court seemingly did not take this testimony into account. In fact, Jeffers explicitly denied having met with an inves- tigator who worked for Young five separate times. Nonethe- less, the state appellate court weighed his testimony on re- cross—in which he never explicitly stated the investigator worked for Young—over his clear and repeated denials that such a visit occurred. The Illinois Appellate Court’s determi- nation that Jeffers testified that he met with an investigator who worked for Young therefore is not supported by the trial evidence. The state appellate court’s conclusion that the prosecutor’s comments were proper depended on its determination that Jeffers had testified that an investigator who worked for Young visited him. According to the state appellate court, be- cause there was evidence in the record that Jeffers had “dra- matically changed his testimony at trial after receiving a visit from an investigator sent by codefendant Young, a known gang member,” the prosecutor’s statements during closing ar- gument were proper because the prosecutor made a reasona- ble inference that the change in Jeffers’s testimony could be attributed to witness intimidation. When Jeffers’s testimony, however, is properly characterized—that he met with an in- vestigator but had no knowledge as to whom the investigator worked for—the prosecutor’s comments no longer rest on a reasonable inference from the evidence in the record. Without 20 No. 19-3466

evidence connecting the investigator to Young, it was not rea- sonable for the prosecutor to argue that Jeffers changed his testimony after a visit from an investigator who worked for Young because Jeffers feared that Young knew where to find him. While the record does not reflect who the investigator was or who she worked for, the only testimony about her em- ployer is that she did not work for Young. Close examination of the record reveals that the state court mischaracterized and misstated the content of Jeffers’s testimony. The prosecutor’s statements during closing argument about witness intimida- tion were therefore improper because the record did not sup- port them, nor do they reflect a reasonable inference from the record. The state appellate court’s determination to the con- trary therefore reflects an unreasonable application of Darden. On appeal, the state makes two primary arguments. First, the state argues that because both the prosecutor and defense counsel characterized the investigator as working for Young, “both sides agreed that the person who spoke to Jeffers worked for Young” and the record is therefore susceptible to multiple interpretations. But even if the attorneys shared the implicit assumption that the investigator worked for Young, this shared belief is not evidence and does not introduce am- biguity into Jeffers’s clear and repeated denials that he spoke to an investigator who worked for Young. Second, the state argues that because Jeffers admitted he spoke to an investigator, it was proper for the prosecutor to link that investigator to Young because the investigator must have been working for the defense. In the state’s view, this must be true because Evans “does not contend that this inves- tigator worked for the State, nor could he, as it was a defense investigator who approached Jeffers.” The state makes this No. 19-3466 21

circular contention without citation to the record. A lack of evidence that the investigator worked for the state does not constitute evidence that the investigator worked for the de- fense. It is precisely the lack of evidence about who the inves- tigator worked for that makes the prosecutor’s comments im- proper. Evans does not need to prove the investigator worked for the state to successfully argue that there was no evidence in the record from which the prosecutor could reasonably in- fer that the investigator worked for Young. And without evi- dence linking the investigator to the defense, the prosecutor’s statements about why Jeffers’s testimony changed—that he was paid a visit by an investigator hired by a known gang member who now knew where to find him—was not a rea- sonable inference. Accordingly, the Illinois Appellate Court’s determination that the prosecutor’s statements were supported by the rec- ord, and therefore proper, was unreasonable. The dissent sug- gests that we have reached this conclusion without consider- ing Jeffers’s testimony about the investigator in the context of the entire trial. In doing so, however, it is the dissent which applies too narrow a lens to its analysis. The dissent hangs its hat on a single exchange in which defense counsel inquired whether “[t]he state’s attorney just asked if [Jeffers] spoke to an investigator for Mario Young” and Jeffers responded, “Right.” (emphasis added). In the dissent’s view, this was an affirmative response that can reasonably be viewed as affirm- ing either that he was just asked that question or that he in fact spoke to an investigator working for Mario Young. Because both of these inferences are possible, the dissent argues that the prosecutor’s statement in closing argument that Jeffers spoke to an investigator working for Young is a “logical con- clusion.” 22 No. 19-3466

But that conclusion is only logical if one ignores the con- tent and context of the defense counsel’s question, Jeffers’s an- swer, Jeffers’s previous denial that he spoke to such an inves- tigator, and his subsequent clarification that he spoke to someone but he did not know if the investigator worked for Young (and did not know who she worked for). This context is not “an exercise in keeping score,” as the dissent suggests. Our determination that the prosecutor’s remarks were not based on a reasonable inference from record evidence is not based on the fact that Jeffers denied that he met with an in- vestigator working for Young more times than he admitted it. Rather, in considering Jeffers’s full testimony, we do not find such an inference of admission reasonable. Interpreting Jef- fers’s answer of “right” to a question about whether the state’s attorney had just asked a question as an affirmation about the very thing that he had just twice denied is not reasonable, es- pecially considering his subsequent clarifications. Rather than relying solely on Jeffers’s style of speaking to search for reasonable alternative inferences that might be drawn from his testimony, as the dissent proposes, we base our conclusion on the facts to which Jeffers did or did not tes- tify. Jeffers specifically did not admit to having spoken with Mario Young’s investigator, and he expressly stated the oppo- site: he did not speak to an investigator who worked for Mario Young. We decline the dissent’s invitation to base our decision on each of these facts in isolation, and instead consider the trial record in full. It was unreasonable for the Illinois Appel- late Court to ignore Jeffers’s explicit testimony which estab- lishes only that he spoke with a female investigator, and that no one threatened him prior to testifying at trial. Because there was no evidence in the record as to whom the investiga- tor worked for, there was insufficient evidence presented at No. 19-3466 23

trial to support the prosecutor’s arguments that Jeffers’s testi- mony changed because a defense investigator working for a known gang member visited him. While “[i]t is of course true that in closing counsel may make arguments reasonably in- ferred from the evidence presented,” at some point “the in- ference asked to be drawn will be unreasonable enough that the suggestion of it cannot be justified as a fair comment on the evidence.” United States v. Vargas, 583 F.2d 380, 385 (7th Cir. 1978) (holding that a prosecutor’s closing statement that the defendant had previously trafficked heroin was not based on a reasonable inference from the evidence presented be- cause “the only testimony on the subject was [the defendant’s] unrebutted statement that he had no prior criminal record”). That is precisely what occurred here. There was thus no rea- sonable basis for the state appellate court to conclude that the prosecutor’s comments in his closing statement were proper. B. Whether the Prosecutor’s Statements Violated Due Pro- cess Having found the challenged statements improper, we turn to whether—considering the record as a whole—the prosecutor’s comments deprived Evans of a fair trial. “The rel- evant question is whether the prosecutors’ comments so in- fected the trial with unfairness as to make the resulting con- viction a denial of due process.” United States v. Olson, 450 F.3d 655, 674 (7th Cir. 2006) (quoting Darden, 477 U.S. at 181). Six factors guide our inquiry: (1) whether the prosecutor mis- stated evidence; (2) whether the remarks implicate specific rights of the accused; (3) whether the defense invited the com- ments; (4) the trial court’s instructions; (5) the weight of the evidence against the defendant; and (6) the defendant’s op- portunity to rebut the improper remarks. See Darden, 477 U.S. 24 No. 19-3466

at 181; see also Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000). We do not apply these factors in a rigid manner and rely on them only as a “guide to determine whether there was fundamental unfairness that infected the bottom line.” Hough v. Anderson, 272 F.3d 878, 903 (7th Cir. 2001). We generally consider the weight of the evidence to be “the most important consideration.” Id. (quoting United States v. Morgan, 113 F.3d 85, 90 (7th Cir. 1997)). As an initial matter, the parties disagree about the level of deference we owe the state appellate court’s determination that Evans was not denied the right to a fair trial. Evans argues that a Darden analysis has two prongs because “we first deter- mine if the comments were … improper” and then “[i]f they were improper, we consider the record as a whole to deter- mine whether the comments deprived the defendant of a fair trial.” Olson, 450 F.3d at 673. According to Evans, because the state appellate court never reached the second prong—it de- termined only that the comments were proper—we should consider whether Evans was denied the right to a fair trial de novo. In support, Evans cites to how federal courts review in- effective assistance of counsel claims arising under Strickland v. Washington, 466 U.S. 668 (1984). A Strickland claim has two prongs—a petitioner must show both that his counsel pro- vided constitutionally deficient performance (the “perfor- mance” prong) and that her was prejudiced by it (the “preju- dice” prong). When a state appellate court denies post-con- viction relief based on a petitioner’s failure to meet one prong but does not reach the merits of the other prong, federal courts review the unreached prong de novo. See Wiggins v. Smith, 539 U.S. 510, 534 (2003). Thus, in Evans’s view, because the state appellate court made “no determination” about whether the prosecutor’s comments (if improper) prejudiced him, we No. 19-3466 25

need not defer to state court’s determination that he was not deprived the right to a fair trial. Conversely, the state argues that, unlike Strickland, Darden did not set forth a dual-pronged inquiry but instead articu- lated a “very general” standard. Parker, 567 U.S. at 48. We have interpreted Darden as having “established a two-prong test for determining whether a prosecutors’ comments in clos- ing argument constitute a denial of due process.” Ellison, 593 F.3d at 635–36. Nevertheless, according to the state, the rea- sonableness of the state appellate court’s adjudication turns on clearly established Supreme Court precedent, and there is no such precedent establishing a dual-pronged analysis. We need not decide this question to resolve this case. As described below, even if we owe deference to the state appel- late court’s determination, the prosecutor’s comments de- prived Evans of a fair trial and any decision to the contrary would be an unreasonable application of Darden. To be sure, not all of Darden’s factors weigh in Evans’s fa- vor. Specifically, the remarks did not “implicate other specific rights of the accused such as the right to counsel or the right to remain silent,” see Darden, 477 U.S. at 182, and the trial court instructed the jury to disregard any argument made by the attorneys that is not based on evidence. 3 Yet the remaining four factors tip the scale heavily enough to require that we

3 Evans concedes that the only “specific right” arguably implicated in the prosecutor’s remarks is the defendant’s right to investigate the case against him. See Michigan v. Harvey, 494 U.S. 344, 348 (1990). That right is not implicated here, however, as the prosecutor’s comments concerned an investigator allegedly working for Evans’s co-defendant, Mario Young, not Evans himself. 26 No. 19-3466

conclude that the prosecution’s improper statements de- prived Evans of his right to a fair trial. As we have already explained, the prosecutor’s comments misstated the evidence. At no point does Jeffers testify that he spoke with an investigator working for Mario Young. Instead, he testified to the opposite: no one threatened or intimidated him, and he never spoke with an investigator working for Mario Young. The defense did not invite the prosecutor’s re- marks, either. In other words, the prosecutor’s comments can- not be seen as offsetting “improper statements from the de- fense that might have disposed the jury to favor the defend- ant’s position,” United States v. Alexander, 741 F.3d 866, 871 (7th Cir. 2014), because the defense did not make such im- proper statements. The timing of the statements is particu- larly concerning, because the prosecution made the improper remarks during rebuttal closing statements—the very last time either party would address the jury. Most significant to our analysis, however, is the weight of the evidence against Evans. The evidence here was not “plen- tiful and compelling” as it was in United States v. Klemis, 859 F.3d 436, 443 (7th Cir. 2017), where “multiple witnesses” tes- tified against the defendant, and phone and text records doc- umented the defendant’s crime. Instead, the prosecution’s only evidence linking Evans to the shooting is Jeffers’s identi- fications. The only other eyewitness, Margaret Winton, was certain she never saw the shooter’s face and could not de- scribe him or either of the other two men in the car. In addi- tion, no physical evidence retrieved from the scene of the crime was traced to Evans. The state contends that the prosecutor’s remarks were not prejudicial because the jury would have found Jeffers’s No. 19-3466 27

“multiple out-of-court identifications” to be more credible than his trial testimony regardless. We are not persuaded. When Jeffers was first asked to identify the perpetrators, he had a 50% chance of picking one of the three people the police already suspected. In the next meeting, Jeffers was shown a photo of Evans again. Therefore, by the time Jeffers picked Evans out of an in-person lineup, he had seen his photo—and not the photo of any other person in the lineup—twice. Thus, the fact that Jeffers “identified” Evans multiple times before trial does not mean the evidence against him was compelling. Rather, the prosecution’s case rested heavily on a witness who initially did not provide specific details of the shooting, then told one version of events before trial and a completely different version of events at trial. Given the lack of other ev- idence tying Evans to the shooting, which version the jury be- lieved was crucial to the outcome. Consequently, any reason the jury had to credit one version over the other was likely to be influential. The prosecutor made Jeffers’s pre-trial version of events appear more credible to the jury than his trial testi- mony by arguing that Jeffers had been threatened by an in- vestigator working for Evans’s co-defendant, when there was no evidence in the record supporting that argument. The state appellate court acknowledged that “prosecutorial comments which suggest that a witness is afraid to testify truthfully be- cause of threats or intimidation by the defendant or on the defendant’s behalf, when not based upon evidence in the rec- ord, are highly prejudicial.” This is exactly what occurred here. Accordingly, the prosecutor’s improper comments de- prived Evans of his right to a fair trial.

AFFIRMED 28 No. 19-3466

BRENNAN, Circuit Judge, dissenting. The habeas petition before us focuses on the closing argument of the prosecutor, who theorized that a key witness, Andrew Jeffers, changed his testimony because he was intimidated by an investigator working for a co-defendant. The parties examine Jeffers’s trial testimony to assess whether the prosecutor’s remarks were reasonably inferred from the trial evidence. My colleagues conclude they are not, and therefore grant the habeas petition. Viewing the entire trial, I read Jeffers’s testimony as ad- mitting that he spoke with the investigator. That means the prosecutor’s closing argument was properly grounded in the trial evidence, and the Illinois Appellate Court’s decision rea- sonably applied clearly established federal law. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, we should defer to that decision. I A foundational principle of our federal system remains that “[s]tate courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 19 (2013). Congress enacted AEDPA to ensure that federal habeas review of state court adjudication is “narrow … and not the broad exercise of supervisory power.” Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (internal quotation marks omitted). Under AEDPA, a federal court does not have authority to issue a writ of ha- beas corpus unless the state court decision (1) “was contrary to, or involved an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable de- termination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). No. 19-3466 29

A state court unreasonably applies clearly established fed- eral law if “it correctly identifies the governing legal rule from Supreme Court case law, but unreasonably applies it to the facts of the case.” Clark v. Lashbrook, 906 F.3d 660, 664 (7th Cir. 2018) (citing Williams v. Taylor, 529 U.S. 362, 407–08 (2000)). A federal court reviewing habeas under the “unreasonable ap- plication” prong of § 2254(d)(1) must first “determine what arguments or theories supported or, … could have sup- ported, the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The court then must ask “whether fair- minded jurists could disagree on the correctness of the state court’s decision if based on one of those arguments or theo- ries.” Shinn v. Kayer, 141 S. Ct. 517, 524 (2020) (internal quota- tion marks omitted) (citing Richter, 562 U.S. at 101). A peti- tioner can satisfy this inquiry “only by showing that ‘there was no reasonable basis’” for the state court’s decision. Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (quoting Richter, 562 U.S. at 98). The state court’s factual determination is “presumed to be correct,” and the petitioner bears the burden of rebutting that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). AEDPA sets a high bar for when a state court decision con- stitutes an unreasonable application of Supreme Court prece- dent. To meet this bar, a state court decision must be “so lack- ing in justification … beyond any possibility for fairminded disagreement.” Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (en banc) (quoting Richter, 562 U.S. at 103). Habeas relief is appropriate solely when “state courts veer well outside the channels of reasonable decision-making about federal consti- tutional claims.” Id. (internal quotation marks omitted). This standard is “difficult to meet.” White v. Woodall, 572 U.S. 415, 419 (2014) (internal quotation marks omitted). That is because 30 No. 19-3466

AEDPA deference directs federal courts to “presum[e] that state courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). The clearly established federal law in this case, Darden v. Wainwright, provides the relevant “framework to evaluate ‘whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Bartlett v. Battaglia, 453 F.3d 796, 800 (7th Cir. 2006) (quoting Darden, 477 U.S. at 181). To succeed under Darden, a petitioner must prove that the prosecutor’s remarks were im- proper and that those statements deprived him of a fair pro- ceeding. Darden, 477 U.S. at 181. A prosecutor’s closing remarks unsupported by trial evi- dence are improper. See Berger v. United States, 295 U.S. 78, 88– 89 (1935). Federal courts defer to state courts in making this assessment. Cf. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A state appellate court’s decision that prosecutorial statements were supported by evidence “will not be overturned on fac- tual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Id. This deference is necessary because “[a] criminal trial does not un- fold like a play with actors following a script,” Geders v. United States, 425 U.S. 80, 86 (1976), and habeas review cannot take into account all the nuances of live testimony. Though “rea- sonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court’s” determination. Brumfield v. Cain, 576 U.S. 305, 314 (2015) (cleaned up). So “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Richter, 562 U.S. at 102. No. 19-3466 31

A prosecutor may comment on the credibility of a witness if the remarks were reasonably inferred from the evidence at trial. United States v. Klemis, 859 F.3d 436, 443 (7th Cir. 2017). This court has recognized that “[a]ttorneys have more leeway in closing arguments to suggest inferences based on the evi- dence.” Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008). A prosecutor’s inference “need not always be introduced, nor immediately followed, by a direct reference to the trial rec- ord.” United States v. Wolfe, 701 F.3d 1206, 1213 (7th Cir. 2012). Rather, reasonable inference must be “defined contextually.” United States v. Waldemer, 50 F.3d 1379, 1384 (7th Cir. 1995). That context should dispose of this case. II The appropriate context from which the prosecutor may render a reasonable inference is the entire trial, not just por- tions of it. See United States v. Young, 470 U.S. 1, 11–12 (1985) (explaining that prosecutor’s comments or conduct must be viewed in “the context of the entire trial”). That context includes the following exchanges. On the first re-direct examination, the prosecutor asked Jeffers whether he had spoken to an investigator working for Young. Jeffers answered no. On re-cross, defense counsel followed up and this time Jeffers admitted that he did speak to an investigator. Then the prosecutor readdressed Jeffers’s encounter with the investigator. Jeffers responded that he did not know the iden- tity of the investigator and that the investigator did not visit his home. In his closing argument, the prosecutor offered a theory on why Jeffers recanted. He theorized that Jeffers had given a complete story when he was in custody because he felt safe, and later recanted his testimony upon a visit from Young’s investigator because he was intimidated. 32 No. 19-3466

Based on this sequence, all can agree that Jeffers spoke to an individual who had visited him after he was released from custody but before trial. And all can agree that the individual was likely an investigator. What is unclear, the majority opin- ion concludes, is whether Jeffers knew that the investigator was someone working for Young. The majority opinion rejects the decision of the Illinois Ap- pellate Court—that Jeffers admitted to speaking with Young’s investigator—as lacking evidence, pointing to portions of Jef- fers’s testimony. On re-cross, defense counsel asked Jeffers, “The state’s attorney just asked if you spoke to an investigator for Mario Young when you were released from custody, is that correct, sir?” Jeffers responded, “Right.” Though the majority opinion acknowledges that Jeffers’s responses at var- ious parts of the testimony “make the transcript somewhat difficult to follow,” it surmises that “there is no reasonable reading of this exchange in which Jeffers admits to speaking with an investigator working for Mario Young.” (emphasis added). The context of the full trial weakens this conclusion. Throughout the trial, Jeffers used “right” and “yeah” inter- changeably to answer in the affirmative. 1 So when he replied

1 Below are some examples from Jeffers’s testimony: “Q: As of ‘96 when this happened, you had been living there for about five or six years? A: Right.” R. 13-8 at 89–90. “Q: You’re saying you heard a total of four or five shots altogether? A: Right. Q: That is all you heard? A: Right.” Id. at 95. “Q: You don’t write your name that way, AJ? A: Right.” Id. at 104. No. 19-3466 33

to defense counsel’s question on re-cross with “right,” Jeffers could have meant either: 1. Yes, it is correct that the state’s attorney just asked if I spoke to an investigator for Mario Young when I was released from custody; or 2. Yes, it is correct that I spoke to an investiga- tor for Mario Young when I was released from custody. The first inference focuses on the state attorney’s question; the second inference focuses on the substance of that question. Both are reasonable readings of the exchange, and the latter provides a reasonable basis to infer that Jeffers admitted to speaking with an investigator working for Young. The point of the “reasonable inference” standard is to cap- ture the nuances of the trial—what parties attempt to com- municate and to understand. From Jeffers’s testimony, it can logically be concluded that he spoke to Young’s investigator. Inference number 1 is reasonable, but that does not render in- ference number 2 unreasonable. Indeed, given the sequence of the questions, inference number 2 is arguably more reason- able than inference number 1. The majority opinion concludes that the state court’s de- termination “lacks evidentiary support.” In doing so, it high- lights that there is “[a] lack of evidence about who the

“Q: And on the bottom of page 6 it says Andrew Jeffers there, right? A: Right. Q: And you’re saying you didn’t put that signature there either, right? A: Yeah.” Id. at 108. “Q: And you didn’t put that there either, right? A: Right. Q: And two lines below that, right? A: Yeah.” Id. at 112. 34 No. 19-3466

investigator worked for” and that “the only testimony about her employer is that she did not work for Young.” But by dismissing the state court’s interpretation of the testimony, the majority opinion applies an overly restrictive definition of “reasonable inference.” To be a “reasonable in- ference” does not require Jeffers to have explicitly said that he knew the investigator worked for Young. Black’s Law Diction- ary defines “inference” as “[a] conclusion reached by consid- ering other facts and deducing a logical consequence from them.” BLACK’S LAW DICTIONARY (11th ed. 2019). That Jeffers spoke to Young’s investigator is a logical conclusion:  Jeffers decided to recant his prior statements and identification after his release from custody and before trial; an investigator visited Jeffers during that time;  Young had an interest in the case as a co-defend- ant; and  Jeffers responded in the affirmative when de- fense counsel asked whether he had spoken to an investigator working for Young. In response to this conclusion, the majority opinion under- scores that five times Jeffers denied meeting with Young’s in- vestigator. Such denials do not automatically amount to clear and convincing evidence. This is especially true if the state court renders its factual determination based on a reasonable inference from the trial record, as the Illinois Appellate Court did here. Evaluating whether an inference is reasonable is not an ex- ercise in keeping score. Five explicit denials do not obviate the weight of a single inference of admission to the contrary. Cf. No. 19-3466 35

United States v. Edwards, 581 F.3d 604, 612 (7th Cir. 2009) (not- ing that “the trier of fact must consider whether … particular falsehoods in a witness’s testimony so undermine his credi- bility as to warrant disbelieving … a critical part” of his testi- mony); United States v. Mejia, 82 F.3d 1032, 1038 (11th Cir. 1996) (“A proper inference the jury can make from disbe- lieved testimony is that the opposite of the testimony is true.”). One last point on this score. The majority opinion empha- sizes that Jeffers “expressly stated … he did not speak to an investigator who worked for Mario Young.” But Jeffers only denied knowing the identity of the investigator who “just asked [him] questions,” not speaking with an investigator. In- deed, the majority opinion acknowledges that Jeffers said he “spoke to someone but he did not know if the investigator worked for Young.” Jeffers neither did nor could have ex- pressly denied speaking with Young’s investigator because he did not know that investigator’s identity. AEDPA “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Woodford, 537 U.S. at 24). The Illinois Appellate Court’s decision does not simply “rest[] on thin air.” Mendiola v. Schomig, 224 F.3d 589, 592 (7th Cir. 2000). It relies on a rea- sonable inference from evidence presented at trial—that Jef- fers admitted to speaking with an investigator working for Young—to conclude that the prosecutor’s comments were not improper. And when the record is subject to multiple inter- pretations, as here, federal courts should defer to state court’s reasonable interpretation. See, e.g., Bartlett, 453 F.3d at 802. Be- cause the full context of the trial provides a reasonable basis to characterize the prosecutor’s statements as not improper, 36 No. 19-3466

the Illinois Appellate Court did not unreasonably apply Darden under § 2254(d)(1). We should defer to the state court’s decision, and bound by AEDPA, deny the petition.

*** Under AEDPA, federal courts must not mistake habeas corpus as “a substitute for ordinary error correction through appeal.” Richter, 562 U.S. at 102–03. Rather, it is “[a] guard against extreme malfunctions in the state criminal justice sys- tems.” Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment). No such breakdown happened here. The decision of the Illinois Appellate Court rested on record evidence, so under AEDPA I would deny the petition. I respectfully dissent.