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January 27, 1992

SALVADORE GODINEZ, Warden, Stateville Correctional Center, Illinois Department of Corrections, and ROLAND W. BURRIS, Attorney General of Illinois, Respondents.


The opinion of the court was delivered by: SUZANNE B. CONLON



 The procedural background is as follows. In his second trial by jury, Hunley was convicted of residential burglary and murder by the Circuit Court of Cook County, Illinois. Hunley was sentenced to 40 years in the Illinois Department of Corrections, where he is currently imprisoned. Hunley subsequently appealed his conviction to the Illinois Appellate Court. Hunley's conviction was affirmed. People v. Hunley, 189 Ill. App. 3d 24, 545 N.E.2d 188, 136 Ill. Dec. 664 (1989). In January 1990, the Illinois Supreme Court denied Hunley's petition for leave to appeal. See People v. Hunley, 129 Ill. 2d 568, 550 N.E.2d 562, 140 Ill. Dec. 677 (1990). The United States Supreme Court denied Hunley's petition for writ of certiorari. Hunley v. Illinois, 112 L. Ed. 2d 58, 111 S. Ct. 86 (1990). Hunley now seeks habeas relief from this court pursuant to § 2254.

 The state appellate court's summary of the facts serves as the basis for review of this habeas corpus petition. This summary of relevant facts is entitled to a presumption of correctness under § 2254(d). *fn1" See also Sumner v. Mata, 449 U.S. 539, 545-47, 66 L. Ed. 2d 722 , 101 S. Ct. 764 (1981); Balfour v. Haws, 892 F.2d 556, 559 (7th Cir. 1989). On November 18, 1983, Lisa Tyson was fatally stabbed in her northside Chicago apartment. The Chicago Police Department's subsequent investigation revealed that there were no signs of forced entry into Tyson's apartment. A key was required to gain entry into the building and into Tyson's apartment. There was no other possible means of entry into the apartment. The investigation eventually centered on Hunley because he was employed at a nearby hardware store and had done lock work on Tyson's building, and he had previously been arrested for the burglary of a neighboring video store where he had changed the locks prior to the burglary. In 1988, Hunley was arrested and charged in the Tyson burglary and murder.

 At Hunley's trial, the prosecution presented evidence to support the following theory of the case. On November 18, 1983, Hunley made an unforced entry into Tyson's apartment and looked around with a flashlight for small items to steal. Tyson surprised Hunley when she returned to the apartment. Tyson went for a kitchen knife, which Hunley grabbed from her. Hunley fatally stabbed Tyson and fled the apartment.

 Hunley's first trial ended in a mistrial when the jury divided 7 to 5 in favor of acquittal after two days of sequestered deliberations. At the end of Hunley's second trial, the jury deliberated until 10:00 p.m. At that point, the jury was divided 8 to 4 or 7 to 5 in favor of conviction. *fn2" After the jury foreman informed the court that the jury could not reach a verdict within one hour, the court ordered the jury sequestered in a hotel overnight. That night, four jurors in two adjacent rooms, including the foreman, were burglarized. The burglar made an unforced entry into the jurors' rooms with a pass key and stole money and several small, easily concealed items. *fn3" The four burglarized jurors were interviewed by police the next morning. All twelve jurors discussed the burglary among themselves. The jury then resumed deliberations. Despite the foreman's prediction the night before, the jury returned a guilty verdict within one hour after deliberations resumed that morning. The four holdout jurors changed their votes from "not guilty" to "guilty." Two of these four who changed their votes to "guilty," including the foreman, were victims of the hotel burglary.

 Defense counsel moved for a mistrial because of the hotel burglary of the jurors. In response to this motion, the trial judge conducted an in camera hearing to determine whether the burglary had affected the verdict. Each juror stated individually that the burglary did not affect his or her verdict, although some jurors expressed concern over the incident. The trial judge found that the jury deliberated in good faith and that the four holdouts "basically wanted to be convinced beyond any doubt that (Hunley) was guilty of the charge(.)" The trial judge also noted that strong evidence of Hunley's guilt decreased the likelihood that the guilty verdict was influenced by the burglary. Finally, the court considered the affidavit of Hunley's jury expert, but did not find it persuasive. The court then denied defendant's post-trial motions and sentenced Hunley to 40 years in prison. See Hunley, 545 N.E.2d at 190-99.

 Hunley asserts two claims in this habeas petition: (1) that the prosecutor's misconduct during her rebuttal argument deprived him of his due process right to a fair trial; and (2) that the burglary of the jurors violated his sixth amendment and due process right to a trial by a fair and impartial jury. Respondents deny the merits of Hunley's claims, and assert that Hunley waived his right to habeas review of these claims by failing to sufficiently alert the state courts to any applicable constitutional grounds for his claims.


 I. Procedural posture of Hunley's habeas corpus claims

 Before considering the merits of Hunley's habeas corpus claims, the court must determine that Hunley has fulfilled the proper procedural requirements. There are two procedural obstacles that may bar a state prisoner's federal habeas corpus petition: failure to exhaust state remedies and waiver. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990); United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 452 n. 3 (7th Cir. 1984). Respondents do not dispute Hunley's exhaustion of state remedies. However, respondents claim that Hunley has waived his habeas claims. Under the waiver doctrine, a habeas petitioner must provide the state courts with a "fair opportunity to apply constitutional principles and correct any constitutional error committed by the trial court." Sullivan, 731 F.2d at 453, citing Anderson v. Harless, 459 U.S. 4, 5, 74 L. Ed. 2d 3 , 103 S. Ct. 276 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-276, 30 L. Ed. 2d 438 , 92 S. Ct. 509 (1971). This means that "the substance of the federal habeas claim must first be presented to the state courts." Id., quoting Picard, 404 U.S. at 278. The petitioner is not required to explicitly mention the specific constitutional rights implicated in his or her claims. However, it is not enough that "all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Id., quoting Anderson, 459 U.S. at 5. In other words, the petitioner must have presented his claims in such a way as to "fairly alert the state court to any applicable constitutional grounds for the claim." Id.

 Respondents assert that Hunley failed to properly alert the Illinois Appellate Court of the constitutional implications of his current habeas claims. This assertion is without merit. Although the Illinois Appellate Court relied primarily upon Illinois case law in deciding Hunley's prosecutorial misconduct and jury burglary claims, this does not mean that the Illinois Appellate Court was not fairly alerted to the constitutional implications of Hunley's claims. In considering Hunley's jury burglary claim, the Illinois Appellate Court opened with this statement:

 (Hunley) maintains that the jury burglary created such a probability of prejudice to his case that the verdict reached was inherently lacking in due process and violative of his right to a fair and impartial jury, because the burglary "powerfully reinforced" the theme of the State's closing argument "that everyone expects to be able to feel safe in their own home."

 Hunley, 545 N.E.2d at 198. The use of the terms "due process" and "right to a fair and impartial jury" clearly demonstrate that the Illinois Appellate Court was fully aware of the constitutional grounds for Hunley's jury burglary claim.

 Furthermore, the constitutional implications of any "impartial jury" claim are both well-established and self-evident. The United States Supreme Court has held that the right to a trial by an impartial jury is essential to the very concept of constitutional due process. Irvin v. Dowd, 366 U.S. 717, 721-22, 6 L. Ed. 2d 751 , 81 S. Ct. 1639 (1961).

 Similarly, in discussing Hunley's prosecutorial misconduct claim, the Illinois Appellate Court noted that improper comments during closing argument "do not warrant reversal unless the argument as a whole was so seriously prejudicial that it deprived the defendant of a fair trial." Hunley, 545 N.E.2d at 200. The Illinois Appellate Court concluded that the improper comments in this case did not result in sufficient prejudice "to have denied (Hunley) a fair trial." Id. at 201. Again, the referral to Hunley's constitutional right to a "fair trial" clearly demonstrates that the Illinois Appellate Court gave full consideration to the constitutional grounds for Hunley's prosecutorial misconduct claim. Furthermore, like "impartial jury" claims, the constitutional implications of prosecutorial misconduct and fair trial claims are also both well-established and self-evident. See Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144 , 106 S. Ct. 2464 (1986) (prosecutor's improper comments may be so serious as to "infect the trial with unfairness" and deny defendant's constitutional right to due process); Donnelly v. Christoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431 , 94 S. Ct. 1868 (1974) (same); United States v. Pirovolos, 844 F.2d 415, 425-26 (7th Cir.), cert. denied, 488 U.S. 857, 102 L. Ed. 2d 119 , 109 S. Ct. 147 (1988) (same). *fn4" Accordingly, Hunley has not waived the right to assert his two habeas corpus claims, and the court shall reach the merits.

 II. The prosecutorial misconduct claim

 A defendant's constitutional right to due process is violated if a prosecutor makes comments during closing arguments that "poison the entire atmosphere of the trial." Pirovolos, 844 F.2d at 425, citing Darden, 477 U.S. at 181. It is not enough for Hunley to show that the prosecutor's remarks, viewed in isolation, were improper. Hunley must demonstrate that the improper remarks, viewed in context of the entire case, infected the trial with unfairness to such a degree that the outcome of the trial would likely be different if the remarks had not been made. United States v. Hernandez, 865 F.2d 925, 927-28 (7th Cir. 1989); United States ex rel. Alerte v. Lane, 725 F. Supp. 936, 942 (N.D. Ill. 1989), appeal dismissed, 898 F.2d 69 (7th Cir. 1990). The due process analysis of prosecutorial misconduct focuses on the fairness of the trial as ...

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