Rittenhouse, Kevin N v. Battles, John C. ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-3461
    Kevin Rittenhouse,
    Petitioner-Appellant,
    v.
    John C. Battles,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 98 C 3286--Jeanne E. Scott, Judge.
    Argued April 12, 2001--Decided August 27, 2001
    Before Flaum, Chief Judge, and Manion and
    Kanne, Circuit Judges.
    Kanne, Circuit Judge. Kevin Rittenhouse
    appeals the district court’s denial of
    his petition for a writ of habeas corpus.
    In addition to arguing that the district
    court incorrectly denied his petition
    with respect to the two claims in the
    certificate of appealability, Rittenhouse
    also asks us to amend the certificate to
    include two other claims. For the reasons
    stated below, we will not amend the
    certificate of appealability granted by
    the district court, and we deny
    Rittenhouse’s petition for a writ of
    habeas corpus.
    I.   History
    A jury found Kevin Rittenhouse guilty of
    three counts of first degree murder,
    three counts of aggravated criminal
    sexual assault, three counts of criminal
    sexual assault, one count of concealment
    of a homicidal death, and one count of
    obstruction of justice, in connection
    with the rape and murder of Mal Chaplin.
    The murder and sexual assault counts were
    based on Rittenhouse’s criminal
    responsibility for the acts of Shawn
    Chaszar, who raped Chaplin, and Jeffery
    Whitehead, who also raped and then
    murdered Chaplin in an apartment in
    Normal, Illinois. At Rittenhouse’s trial
    the State provided evidence indicating
    that Rittenhouse was in the apartment
    while these crimes were being committed,
    that he witnessed Whitehead and Chaszar
    raping Chaplin, and that he took
    affirmative steps to conceal Chaplin’s
    rape and murder after the crimes were
    committed. Rittenhouse was convicted by a
    jury and subsequently sentenced to
    consecutive terms of twenty years for one
    count of first degree murder and six
    years for each count of aggravated
    criminal sexual assault, for a total of
    thirty-eight years incarceration.
    Rittenhouse appealed to the Illinois
    Appellate Court challenging the validity
    of his conviction and sentence. The
    appellate court rejected his claims. See
    People v. Rittenhouse, No. 4-93-1083,
    slip. op. at 22 (Ill. App. Ct. Feb. 10,
    1995). Rittenhouse then filed a petition
    for leave to appeal to the Illinois
    Supreme Court, raising the same claims
    brought before the court of appeals. The
    Illinois Supreme Court denied
    Rittenhouse’s petition. See People v.
    Rittenhouse, 
    657 N.E.2d 634
    (Ill. 1995).
    Rittenhouse next initiated collateral
    review proceedings by filing a post-
    conviction petition in Illinois state
    trial court, alleging that he was denied
    the effective assistance of trial and
    appellate counsel due to their failure to
    raise certain issues regarding the
    instructions given to the jury. He
    subsequently filed a supplemental
    petition as well. Both of these petitions
    were denied. Rittenhouse appealed the
    trial court’s ruling, asserting five
    different claims. The Illinois Appellate
    Court affirmed the denial of
    Rittenhouse’s post-conviction petition.
    See People v. Rittenhouse, No. 4-97-0503,
    slip op. at 18 (Ill. App. Ct. March 17,
    1998). Petitioner again filed a petition
    for leave to appeal to the Illinois
    Supreme Court, and that petition was
    subsequently denied. See People v.
    Rittenhouse, 
    699 N.E.2d 1036
    (Ill. 1998).
    Rittenhouse then filed the present
    petition for a writ of habeas corpus
    pursuant to 28 U.S.C. sec. 2254 in the
    United States District Court for the
    Central District of Illinois. In his
    petition, Rittenhouse claimed that: (1)
    the trial court’s instructions on the
    charges of murder and sexual assault
    invaded the province of the jury and
    denied Rittenhouse his due process rights
    under the Fourteenth Amendment; (2) he
    was denied effective assistance of
    counsel when counsel failed to notice and
    object to the improper instructions, and
    failed to offer an alternative
    instruction that did not contain a
    presumption of legal responsibility; (3)
    he was denied the right to effective
    assistance of trial counsel by counsel’s
    failure to adequately confer with him
    regarding a plea bargain offer and by
    failing to inform him that consecutive
    sentences were mandatory or allowed; and
    (4) the trial court’s refusal to instruct
    the jury on Rittenhouse’s mere presence
    theory of defense was a denial of his
    fundamental right to due process and
    equal protection.
    The district court denied Rittenhouse’s
    petition for habeas corpus. In reaching
    this decision, the court concluded that
    Rittenhouse’s challenge to the jury
    instructions on the charges of murder and
    sexual assault and his claim of
    ineffective assistance of trial counsel
    were procedurally defaulted. With regard
    to his two remaining claims, the district
    court found that the Illinois Appellate
    Court’s analysis on these issues was
    "neither an incorrect statement of
    Supreme Court precedent nor an
    unreasonable application of the law to
    the facts." Rittenhouse v. O’Sullivan,
    No. 98-3286, slip op. at 16 (C.D. Ill.
    Aug. 22, 2000). Rittenhouse then filed a
    petition for a certificate of
    appealability, presenting two issues he
    wished to raise on appeal to this court:
    (1) that the trial court’s instructions
    on the charges of murder and sexual
    assault invaded the province of the jury
    and denied Rittenhouse of his due process
    rights under the Fourteenth Amendment;
    and (2) that the trial court’s refusal to
    instruct the jury on Rittenhouse’s mere
    presence theory of defense was a denial
    of his fundamental right of due process
    and equal protection under the Fourteenth
    Amendment. The district court granted
    Rittenhouse’s petition for a certificate
    of appealability on these issues. See
    Rittenhouse v. O’Sullivan, No. 98-3286,
    slip op. at 3 (C.D. Ill. Sept. 14, 2000).
    II.   Analysis
    A. Request for Amendment of the
    Certificate of Appealability
    Rittenhouse raises two other claims that
    are not included in the district court’s
    certificate of appealability. He asks us
    to consider his claims that: (1) he was
    denied the effective assistance of trial
    counsel when his attorney failed to
    object to instructions that he contends
    contained a mandatory presumption of
    legal responsibility and (2) he was
    deprived of the effective assistance of
    appellate counsel when his counsel did
    not raise an issue regarding the trial
    court’s failure to instruct the jury on
    his mere presence theory of defense.
    In accordance with 28 U.S.C. sec.
    2253(c), a habeas petitioner may appeal
    only those issues for which a certificate
    of appealability has been granted. See
    Porter v. Gramley, 
    112 F.3d 1308
    , 1312
    (7th Cir. 1997). Thus, the State asks
    this court not to consider the two claims
    included in Rittenhouse’s brief that were
    not encompassed by the certificate of
    appealability. This court has recently
    explained, however, that "we shall
    continue to consider requests to amend a
    certificate of appealability even when
    they are presented in a petitioner’s
    briefs to this court." Ouska v. Cahill-
    Masching, 
    246 F.3d 1036
    , 1046 (7th Cir.
    2001). A party can make such a request by
    specifically asking us to consider the
    issue in its brief or "by simply
    including issues in its briefs that were
    not specified in the certificate." 
    Id. at 1045.
    In this case, Rittenhouse did both:
    he included his additional claims in his
    initial brief without requesting that we
    amend the certificate, and in his reply
    brief, he explicitly asked us to consider
    these other issues.
    In order to issue a certificate of
    appealability "[w]here a district court
    has rejected [a habeas petitioner’s]
    constitutional claims on the merits, the
    showing required to satisfy sec. 2253(c)
    is straightforward: The petitioner must
    demonstrate that reasonable jurists would
    find the district court’s assessment of
    the constitutional claims debatable or
    wrong." Slack v. McDaniel, 
    529 U.S. 473
    ,
    484, 
    120 S. Ct. 1595
    , 
    146 L. Ed. 2d 542
    (2000). In this case, the district court
    rejected Rittenhouse’s claim that he was
    denied effective assistance of trial
    counsel when his attorney failed to
    object to certain instructions that
    allegedly contained a mandatory
    presumption of legal responsibility.
    Thus, Rittenhouse must now demonstrate
    that reasonable jurists would find the
    district court’s conclusion that he was
    not denied the effective assistance of
    trial counsel to be debatable or wrong.
    He has made no such showing.
    Rittenhouse’s first ineffective
    assistance claim stems from a phrase that
    was included in nine different
    instructions submitted to the jury at
    Rittenhouse’s trial to which his trial
    counsel did not object:
    To sustain the charge of criminal sexual
    assault as charged in count IV involving
    the penis of Jeffery Whitehead and vagina
    of Mal Chaplin, the State must prove the
    following propositions:
    First: That Whitehead, one for whose
    conduct the defendant is legally
    responsible, committed an act of sexual
    penetration upon Mal Chaplin . . . .
    Rittenhouse asserts that the emphasized
    language contains an improper presumption
    of legal responsibility and that this
    error is magnified by the fact that his
    culpability for the sexual assault and
    murder charges was based on a theory of
    legal accountability for the actions of
    Whitehead and Chaszar. Thus, Rittenhouse
    claimed before the Illinois courts that
    he was provided with ineffective
    assistance of trial counsel when his
    counsel failed to object to the inclusion
    of the emphasized language in the jury
    instructions.
    In reviewing Rittenhouse’s habeas
    petition, the district court evaluated
    the Illinois Appellate Court’s decision
    rejecting Rittenhouse’s claim of
    ineffective assistance of counsel. See
    Rittenhouse, No. 98-3286, slip op. at 5-
    14. In so doing, the district court
    reviewed the appellate court’s use of the
    framework provided by the Supreme Court
    in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), to review ineffective assistance
    of counsel claims. The district court
    likewise reviewed the appellate court’s
    application of Strickland to the facts of
    this case, as well as its ultimate
    conclusion that the jury instructions:
    taken as a whole, informed the jury of
    its responsibility to determine, first,
    whether defendant was accountable for the
    conduct of his codefendants in sexually
    assaulting the victim and, second, once
    it found defendant accountable, to find
    defendant guilty beyond a reasonable
    doubt. These instructions did not direct
    a verdict in favor of the State. Thus,
    defense counsel cannot be deemed
    ineffective for failing to object to the
    State’s tendered instructions.
    People v. Rittenhouse, No. 4-97-0503,
    slip op. at 9 (Ill. App. Ct. March 17,
    1998). The district court concluded that
    "[t]he Appellate Court properly stated
    the standard for ineffective assistance
    of counsel set forth in . . .
    Strickland," Rittenhouse v. O’Sullivan,
    No. 98-3286, slip op. at 13 (C.D. Ill.
    Sept. 14, 2000), and that the Illinois
    court’s conclusions were not "an
    unreasonable application of Supreme Court
    precedent to the facts," 
    id. at 14.
    We
    agree with the district court’s analysis.
    Although we acknowledge that the
    language Rittenhouse challenges might
    have been worded more clearly, other por
    tions of the instructions ensured that
    the jury was informed that it could not
    presume that Rittenhouse was legally
    responsible for the actions of Whitehead
    and Chaszar:
    It is not necessary for the State to show
    that it was or may have been the original
    intent of the defendant or another for
    whose conduct the defendant is legally
    responsible to kill Mal Chaplin. The
    State still must prove that the defendant
    had the requisite intent to promote or
    facilitate the commission of the
    underlying offense of criminal sexual
    assault in order to hold the defendant
    legally responsible for first degree
    murder, based upon the commission of
    criminal sexual assault.
    (emphasis added). Additionally, the
    instructions reiterated to the jury that
    it was the State’s burden to prove each
    element of every charge beyond a
    reasonable doubt, which included
    Rittenhouse’s legal responsibility for
    the actions of Chaszar and Whitehead.
    Furthermore, Rittenhouse’s counsel, as
    well as the State’s Attorney, emphasized
    in closing argument that the question for
    the jury was whether Rittenhouse could be
    held legally responsible for the actions
    of his co-defendants. Thus, we find that
    the jury instructions Rittenhouse
    challenges, taken as a whole, were not
    improper, and that his counsel’s failure
    to object to this language was not "so
    serious that [he] was not functioning as
    the ’counsel’ guaranteed the defendant by
    the Sixth Amendment" or that Rittenhouse
    was "prejudiced" by his counsel’s
    performance. 
    Strickland, 466 U.S. at 687
    .
    Therefore, we find that the district
    court’s assessment of the Illinois
    Appellate Court’s determination that
    Rittenhouse’s counsel did not provide
    ineffective assistance of counsel in
    failing to object to these instructions
    is not an assessment that reasonable
    jurists would find to be incorrect or
    even debatable. Consequently, we will not
    amend the district court’s certificate of
    appealability to include this issue.
    Rittenhouse also asks us to amend the
    certificate of appealability to include
    his claim that he was deprived of the
    effective assistance of appellate counsel
    when his attorney did not challenge the
    trial court’s failure to instruct the
    jury on his mere presence theory of
    defense. The problem with this claim,
    however, is that although Rittenhouse
    presented it to the Illinois courts
    during the course of his post-conviction
    proceedings, he did not present it when
    he filed his petition for a writ of
    habeas corpus in the district court.
    Thus, he has waived this claim on appeal.
    See Drake v. Clark, 
    14 F.3d 351
    , 355 (7th
    Cir. 1994) ("[T]he law is clear that any
    claim not presented to the district court
    is waived on appeal.") (internal
    quotation omitted). Therefore, we decline
    to amend the certificate of appealability
    granted by the district court, and we
    will now turn to the claims included in
    that certificate.
    B.   Rittenhouse’s Certified Claims
    When reviewing an appeal from a district
    court’s ruling on a petition for a writ
    of habeas corpus, we review that court’s
    factual findings for clear error and its
    rulings on issues of law de novo. See
    Ellsworth v. Levenhagen, 
    248 F.3d 634
    ,
    638 (7th Cir. 2001). Because
    Rittenhouse’s habeas petition was filed
    after the effective date of the
    Antiterrorism and Effective Death Penalty
    Act of 1996 ("AEDPA"), we review his
    claims pursuant to 28 U.S.C. sec. 2254 as
    amended by that Act. See Lindh v. Murphy,
    
    521 U.S. 320
    , 322-23, 
    117 S. Ct. 2059
    ,
    
    138 L. Ed. 2d 481
    (1997); Ouska v.
    Cahill-Masching, 
    246 F.3d 1036
    , 1044 (7th
    Cir. 2001). Thus, we are permitted to
    grant his petition for a writ of habeas
    corpus only if the claims he now presents
    were adjudicated by the Illinois courts
    on the merits in such a manner that
    "resulted in a decision that was contrary
    to, or involved an unreasonable
    application of, clearly established
    Federal law, as determined by the Supreme
    Court of the United States." sec.
    2254(d)(1).
    The Supreme Court has explained that a
    state court decision is contrary to
    clearly established precedent "if the
    state court applies a rule that
    contradicts the governing law set forth
    in [the Court’s] cases" or "if the state
    court confronts a set of facts that are
    materially indistinguishable from a
    decision of [the Court] and nevertheless
    arrives at a result different from [the
    Court’s] precedent." Williams v. Taylor,
    
    529 U.S. 362
    , 405-06, 
    120 S. Ct. 1495
    ,
    
    146 L. Ed. 2d 389
    (2000). The Court has
    likewise explained that a state court
    decision is an unreasonable application
    of its precedent if "the state court
    identifies the correct governing legal
    principle from [the Court’s] decisions
    but unreasonably applies that principle
    to the facts of the prisoner’s case." 
    Id. at 413.
    While a federal court reviews de
    novo whether a state court ruling was
    "contrary to" clearly established law,
    see 
    Ouska, 246 F.3d at 1044
    , "under the
    ’unreasonable application’ clause, ’a
    federal habeas court may not issue the
    writ simply because that court concludes
    in its independent judgment that the
    relevant state-court decision applied
    clearly established federal law
    erroneously or incorrectly. Rather, that
    application must also be unreasonable.’"
    Morgan v. Krenke, 
    232 F.3d 562
    , 565-66
    (7th Cir. 2000) (quoting 
    Williams, 529 U.S. at 409
    ).
    Before reviewing the merits of
    Rittenhouse’s claims, we must determine
    whether he properly presented these
    claims to the Illinois courts. If he
    failed to "exhaust all available state
    remedies or raise all claims before the
    state courts, his petition must be denied
    without considering its merits." Dressler
    v. McCaughtry, 
    238 F.3d 908
    , 912 (7th
    Cir. 2001). We have explained that the
    "requirement that state courts have the
    first opportunity to cure a claim of
    continued confinement in an
    unconstitutional fashion stems from the
    understanding that state courts are
    equally obliged to follow federal law and
    from the desire for comity between state
    and federal court systems." Spreitzer v.
    Schomig, 
    219 F.3d 639
    , 645 (7th Cir.
    2000). To satisfy this requirement, a
    petitioner "must present both the
    operative facts and the legal principles
    that control each claim to the state
    judiciary; otherwise, he will forfeit
    federal review of the claim." Wilson v.
    Briley, 
    243 F.3d 325
    , 327 (7th Cir.
    2001). Additionally, our cases have
    articulated four factors to consider in
    determining whether a habeas petitioner
    has fairly presented his claims in state
    court:
    (1) whether the petitioner relied on
    federal cases that engage in
    constitutional analysis; (2) whether the
    petitioner relied on state cases which
    apply a constitutional analysis to
    similar facts; (3) whether the petitioner
    framed the claim in terms so particular
    as to call to mind a specific
    constitutional right; and (4) whether the
    petitioner alleged a pattern of facts
    that is well within the mainstream of
    constitutional litigation.
    
    Id. at 327.
    In applying these factors,
    "[t]he bottom line is that the task of
    the habeas court in adjudicating any
    issue of fair presentment is assessing,
    in concrete, practical terms, whether the
    state court was sufficiently alerted to
    the federal constitutional nature of the
    issue to permit it to resolve that issue
    on a federal basis." Ellsworth v.
    Levenhagen, 
    248 F.3d 634
    , 639 (7th Cir.
    2001) (quotations omitted).
    The district court concluded that
    Rittenhouse’s claim that the trial
    court’s instructions denied him of his
    Fourteenth Amendment due process rights
    was procedurally defaulted because
    Rittenhouse did not fairly present this
    claim to the Illinois courts. See
    Rittenhouse v. O’Sullivan, No. 98-3286,
    slip op. at 14-15 (C.D. Ill. Aug. 22,
    2000). Rittenhouse’s briefs to the
    Illinois courts only discussed the
    problems with the challenged instructions
    within the context of his argument that
    he was denied the effective assistance of
    trial counsel for his attorney’s failure
    to object to these instructions.
    Additionally, Rittenhouse’s brief to the
    Illinois Appellate Court did not refer to
    a single federal or state case addressing
    a criminal defendant’s federal due
    process rights. In fact, the only
    reference to due process in Rittenhouse’s
    ten page argument alleging ineffective
    assistance of counsel appears in the very
    last sentence, where he asserts that the
    trial court’s "instructional errors"
    denied him of his right to due process.
    A close review reveals, however, that
    although Rittenhouse’s only discussion of
    the jury instructions was within the
    context of his ineffective assistance of
    counsel claim, he did in fact present the
    Illinois Appellate Court with a very
    substantial analysis of alleged problems
    with the jury instructions. Additionally,
    his argument that the instructions
    created a mandatory presumption of legal
    responsibility clearly implicates the Due
    Process Clause as explained by the
    Supreme Court in Sandstrom v. Montana,
    
    442 U.S. 510
    , 521, 
    99 S. Ct. 2450
    , 61 L.
    Ed. 2d 39 (1979) (finding that a
    presumption in a jury instruction that
    relieves the government of its burden to
    prove each element of a crime violates
    the Due Process Clause). Likewise,
    although the appellate court did not say
    this outright, its analysis concluding
    that the instructions did not create an
    improper presumption squarely addresses
    and rejects Rittenhouse’s argument that
    is essentially a due process argument.
    Thus, although it is a close call, we
    will err on the side of evaluating the
    merits of Rittenhouse’s claim.
    As we explained in Part II.A., however,
    these instructions, taken as a whole, did
    not create a presumption that Rittenhouse
    was legally responsible for the actions
    of Whitehead and Chaszar. Thus, the
    instructions did not relieve the State of
    its burden to prove Rittenhouse’s
    culpability for each of the crimes with
    which he was charged. Therefore, we
    conclude that the Illinois Appellate
    Court’s conclusion that these
    instructions were proper was not an
    "unreasonable application of" clearly
    established Supreme Court precedent.
    Consequently, we will deny Rittenhouse’s
    petition on this claim.
    With regard to Rittenhouse’s second
    claim--that the trial court’s refusal to
    instruct the jury on his mere presence
    theory of defense was a denial of his
    fundamental right to due process and
    equal protection under the Fourteenth
    Amendment--the district court dismissed
    it on the merits, finding that the
    Illinois Appellate Court’s decision
    rejecting Rittenhouse’s claim was
    "neither an incorrect statement of
    Supreme Court precedent nor an
    unreasonable application of the law to
    the facts." Rittenhouse v. O’Sullivan,
    No. 98-3286, slip op. at 16 (C.D. Ill.
    August 22, 2000). The court reached the
    merits notwithstanding the appellant’s
    assertion that Rittenhouse’s claim was
    procedurally defaulted pursuant to the
    Supreme Court’s decision in O’Sullivan v.
    Boerckel, 
    526 U.S. 838
    , 
    119 S. Ct. 1728
    ,
    
    144 L. Ed. 2d 1
    (1999), because he failed
    to include this claim in the petition for
    leave to appeal that he filed with the
    Illinois Supreme Court. In rejecting the
    respondent’s argument, the district court
    explained that, because Rittenhouse filed
    his petition when the decisions of this
    court "held that he did not default
    issues if he left them out of this
    petition for leave to appeal," it would
    not "default Rittenhouse for following
    the then existing procedural law of the
    [Seventh] Circuit." Rittenhouse, No. 98-
    3286, slip op. at 15-16. We cannot agree.
    In Boerckel, the Supreme Court ruled
    that several of the claims raised in the
    defendant’s federal habeas petition were
    procedurally defaulted because he had not
    properly presented those claims to the
    Illinois 
    courts. 526 U.S. at 848
    .
    Although he had presented the claims to
    the Illinois Appellate Court, Boerckel
    did not include them in his petition for
    leave to appeal to the Illinois Supreme
    Court, and, therefore, he had not
    satisfied the federal exhaustion
    requirement. See 
    id. While Boerckel’s
    case involved a matter on direct appeal,
    we have since held that "[t]he procedural
    default rule announced in Boerckel
    applies with equal force in a case . . .
    on collateral review." White v. Godinez,
    
    192 F.3d 607
    , 608 (7th Cir. 1999).
    Additionally, consistent with the Supreme
    Court’s retroactive application of its
    holding in Boerckel, we have procedurally
    defaulted a habeas petitioner’s claims
    where he sought relief through the state
    court system prior to the Boerckel
    decision and failed to present certain
    claims in his petition for leave to
    appeal to the Illinois Supreme Court. See
    Rodriguez v. Scillia, 
    193 F.3d 913
    , 917
    (7th Cir. 1999). Therefore, we must
    disagree with the district court’s
    determination that the Boerckel decision
    does not affect Rittenhouse’s petition
    and instead conclude that this claim has
    been procedurally defaulted because
    Rittenhouse did not include it in his
    petition for leave to appeal to the
    Illinois Supreme Court.
    Because we find this claim to be
    procedurally defaulted, we may grant
    Rittenhouse’s petition for habeas relief
    on this claim only if he is able to
    "’demonstrate cause for the default and
    actual prejudice as a result of the
    alleged violation of federal law, or
    demonstrate that failure to consider the
    claim[ ] will result in a fundamental
    miscarriage of justice.’" Anderson v.
    Cowan, 
    227 F.3d 893
    , 899-900 (7th Cir.
    2000) (quoting Coleman v. Thompson, 
    501 U.S. 722
    , 750, 
    111 S. Ct. 2546
    , 115 L.
    Ed. 2d 640 (1991)). Rittenhouse has made
    no attempt to offer such a demonstration,
    other than his attorney’s comment at oral
    argument that if this court were to find
    that both of his claims were procedurally
    defaulted, and therefore declined to
    review them on the merits, the errors
    alleged in these claims, taken together,
    would result in a fundamental miscarriage
    of justice. We do not accept this
    argument. We have already denied
    Rittenhouse’s first claim on the merits,
    and we find no aspect of the trial
    court’s decision to refuse to instruct
    the jury on his mere presence theory of
    defense that requires us to review this
    claim on the merits in order to avoid a
    miscarriage of justice. Therefore, we
    will deny his petition for a writ of
    habeas corpus on this claim.
    III.   Conclusion
    For the foregoing reasons we AFFIRM the
    district court’s denial of Rittenhouse’s
    petition for a writ of habeas corpus.