Full opinion text
MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. I. On December 9, 1992, the petitioner, Gary Burris, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 19, 1993, the respondent through the Attorney General of Indiana filed a “Response to Order to Show Cause.” On June 30,1993, the petitioner filed a “Memorandum in Support of Habeas Petition.’! Next, on September 3, 1993, the respondent filed a “Supplemental Memorandum and Reply to Petitioner’s Memorandum in Support of' Amended Habeas Petition.” On September 27, the petitioner filed a “Reply Brief.” The relevant state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In addition, this court held proceedings in Lafayette, Indiana, on September 7, 1993. On January 29, 1980, the body of Kenneth W. Chambers was found dead in an alley in the 3200 block of East Fallereek Parkway in Indianapolis, Indiana. The petitioner, Gary Burris, was charged with murder; and on December 4, 1980, a jury in the Marion Superior Court Criminal Division found him guilty. The state trial court imposed the death penalty on February 20, 1981. The petitioner appealed to the Supreme Court of Indiana, and that Court affirmed the petitioner’s conviction in an extensive opinion dealing with 11 major issues. See Burris v. State, 465 N.E.2d 171 (Ind.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985) (“Burns I ”). This court notes that all of the Justices on the Supreme Court of Indiana concurred in this 23-page opinion. The petitioner also filed for certiorari to the United States Supreme Court. The Supreme Court refused to grant certiorari. Id. Next, the petitioner pursued the available remedies outlined in the Indiana post-conviction rules. The post-conviction court denied the motion. The petitioner appealed the denial of the post-conviction motion to the Supreme Court of Indiana. See Burris v. State, 558 N.E.2d 1067 (Ind.1990) (“Burris II”). In Burris II, the Indiana Supreme Court, in a majority opinion authored by Chief Justice Shepard, and concurred in by Justices De-Bruler, Dickson, Givan, and Pivarnik ordered the state trial court to hold a new penalty phase proceeding. At the hearing on September 7, 1993, the Attorney General reiterated that pursuant to the direction of the Indiana Supreme Court in Bums II, supra, the petitioner was entitled to a new penalty phase proceeding. In addition, the Attorney General indicated that such a proceeding was held, and that the petitioner again received the death penalty. The petitioner has appealed this action to the Indiana Supreme Court, and as of the date of this opinion, that action is still pending. There is a strong possibility that this petitioner may file another habeas petition based on any constitutional errors that may have occurred during the most recent penalty proceeding. See, e.g., Schiro v. Clark, 754 F.Supp. 646 (N.D.Ind.1990), aff'd, 963 F.2d 962 (7th Cir.1992), aff'd, — U.S.-, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994). At the hearing on the petition for habeas corpus, the Attorney General waived any arguments based on the doctrine of the exhaustion of state remedies. Therefore, this court will not consider the ramifications of this issue. Thus, this case and proceeding under 28 U.S.C. § 2254 relates only to the guilt phase of the trial conducted before the late John Tranberg as a Judge of the Marion Superior Court Criminal Division. In pursuing a writ of habeas corpus on the basis of any constitutional errors at the guilt/innocence phase, the petitioner makes several claims. First, the petitioner claims that a jury instruction given at the conclusion of the guilt phase was improper and violated his due process rights. In addition, the petitioner asserts several claims based on prosecutorial misconduct. Next, the petitioner asserts a claim based on the content of the indictment. Finally, the petitioner also lists a plethora of allegations, and specifically asserts each scenario as a violation of his Sixth Amendment right to effective counsel. II. The petitioner’s first claim is based on the jury instructions. This court notes that at the conclusion of the guilt/innocence phase of the trial, the-state trial court judge gave the following jury instruction defining the crime at issue in the trial in the following fashion: A part of the Statute of the State of Indiana which defines and states the essential elements of the crime of Murder, with which the defendant is charged in the Information, reads as follows: “A person who kills another human being while committing or attempting to commit ... robbery; commits murder, a felony.” Robbery, as that term is used in the above statute, is defined as follows: “A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits robbery....” See Final Jury Instruction 23. The other requisites to the petitioner’s claim are the statutory definitions of murder, involuntary manslaughter, and robbery. This court notes that murder in the Indiana criminal code is defined in the following fashion: Murder See. 1. A person who: (1) knowingly or intentionally kills another human being; or (2) kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery; commits murder, a felony. See Ind.Code § 35-42-1-1. Involuntary manslaughter is defined as: Involuntary Manslaughter See. 4. A person who kills another human being while committing or attempting to commit: (1) A Class C or Class D felony that inherently poses a risk of serious bodily injury; (2) A Class A misdemeanor that inherently poses a risk of serious bodily injury; or (3) battery; commits involuntary manslaughter, a Class C felony. However, if the killing results from the operation of a vehicle, the offense is a Class D felony. See Ind.Code § 35-42-1-4. Finally, robbery is defined as: Robbery Sec. 1. A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon and a Class A felony if it results in either bodily injury or serious bodily injury to any other person. See Ind.Code § 35-42-5-1. The gist of the petitioner’s due process claim is that the judge based the jury instruction for purposes of felony murder on Class C robbery. The petitioner asserts that “[t]he robbery statute defined three (3) different crimes: 1) simple robbery graded as a Class C felony; 2) Class B robbery which required the presence of an additional element, committing robbery while armed with a deadly weapon; and 3) if a different, additional element was present, i.e., bodily injury, the crime was Class A robbery.” See Petitioner’s Memorandum. Therefore, in light of the abovementioned jury instruction, the petitioner asserts that “[t]he charge expressly advised the jury that simple robbery, a Class C felony, would support a felony murder conviction.” Id. This court notes that a reading of the felony murder statute suggests no impropriety in such a construction; however, the petitioner asserts that “by statutory definition, a killing which occurs during the commission of a Class C felony which inherently poses a risk of serious bodily injuT ry constitutes involuntary manslaughter.” Id. A reading of the involuntary manslaughter statute in that fashion is also plausible. Therefore, argues the petitioner, insofar as “[rjobbery obviously poses an inherent risk of serious bodily injury ... a killing which occurs during the course of a Class C robbery constitutes involuntary manslaughter.” Id. In so doing, the petitioner also asserts that the abovementioned statutes as reflected by the jury instructions are ambiguous. This court notes that the petitioner’s counsel failed to object to the jury instructions during the trial and also failed to include this issue on direct appeal to the Indiana Supreme Court. In post-conviction proceedings, the petitioner “argued that Class C robbery will not support a felony murder charge and asserted that the required predicate must be Class A robbery, robbery which results in bodily injury.” Id. On this issue, the post-conviction court indicated that this issue has been waived because the petitioner failed to raise the issue on direct appeal. The petitioner appealed and the Indiana Supreme Court agreed with the post-conviction court that the issue had been waived. Burns II, 558 N.E.2d at 1077. See also Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). The petitioner concedes that this court is barred from considering this issue insofar as there is a procedural default bar. Furthermore, the petitioner also concedes that to assert a claim that has been procedurally defaulted, there must be a showing of cause and prejudice. On this issue, this court notes that it is axiomatic that “a federal habeas petitioner who failed to comply with state procedural rules must show cause for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted constitutional claim.” Madyun v. Young, 852 F.2d 1029, 1032 (7th Cir.1988) (citing Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986)). In fact, in Coleman v. Thompson, 501 U.S. 722,-, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991), the Court, speaking through Justice O’Connor, made clear that the cause and prejudice test applies to all state procedural defaults: We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can 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 claims will result in a fundamental miscarriage of justice. Id. In asserting cause for purposes of the cause and prejudice test, the petitioner argues ineffective assistance of counsel at trial. The specific test in an ineffective assistance of counsel claim mandates a two part evaluation. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must illustrate that counsel’s performance fell below an objective standard of reasonableness. First, a petitioner must specify the particular acts or omissions precipitating the respective claim. To evaluate the performance, the Strickland court explained that a court “must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. After specifying the particular acts or omissions, a petitioner must then explain how counsel’s failure to meet the requisite standard of performance caused actual prejudice to the petitioner’s case. See Sullivan v. Fairman, 819 F.2d 1382, 1390 (7th Cir.1987). With all due respect to the petitioner, this ineffective assistance of counsel claim goes beyond the jury instructions to the very posture of the ease beginning with the indictment. The petitioner was indicted on murder and the theory of the prosecution was based on the felony-murder doctrine with robbery as the predicate felony. It is possible to suggest that trial counsel could pursue a theory of defense based on the abovementioned involuntary manslaughter analysis, but this was not done. Such a course of action certainly does not constitute ineffective assistance of counsel. More importantly, to suggest that trial counsel should have been arguing a theory based on an ambiguity in the criminal statutory scheme rather than preparing the intricate details of a murder trial is not fathomable. It is possible that trial counsel could have attacked the indictment on this theory; however, there is no question that the benefit of making an argument of this nature would not outweigh the opportunity costs attributed to such an exercise. The opportunity costs at the pretrial stage can be phenomenal and any time not dedicated to the nuts and bolts of preparing for a murder trial would be ill-advised. Therefore, this court finds that the failure to pursue an argument similar to that which is propagated here is not a Sixth Amendment violation. Prejudice for purposes of the procedural default cause and prejudice test and for purposes of the Strickland prejudice prong are the same. See Erwin Chemerinsky, Federal Jurisdiction at 710-12; Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). However, this court need not discuss prejudice in light of the finding on the first part of the Strickland test. This court is not entirely comfortable deciding this issue on procedural default. Therefore, this court will also consider whether the abovementioned jury instruction constitutes a violation of the Due Process Clause of the U.S. Constitution. On this issue, the petitioner points to In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), and United States v. Frady, 456 U.S. 152, 169, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982), as the constitutional authority for this claim. In In re Winship, supra, the Supreme Court held “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., 397 U.S. at 364, 90 S.Ct. at 1073. The petitioner also contends that “where the error is so fundamental as not to submit to the jury essential ingredients of the only offense on which the conviction could rest, we think it necessary for us to take note of it on our own motion.” Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945) (plurality opinion). See also Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985). The Attorney General of Indiana asserts that the state trial court jury instructions are within the purview of state law and only involve federal constitutional issues under very limited circumstances. In so doing, the Attorney General argues that “[ujnless [the petitioner] can show that Indiana’s courts have interpreted its felony murder statute to include robbery only in its aggravated forms, [then the petitioner] cannot claim that the trial court’s instruction on felony murder omitted essential elements of that offense.” See Respondent’s Memorandum. The Attorney General contends that this issue was recently decided in Averhart v. State, 614 N.E.2d 924, 934-35 (Ind.1993). On this issue, the Attorney General also argues that in Bates v. McCaughtry, 934 F.2d 99 (7th Cir.), cert. denied, — U.S.-, 112 S.Ct. 318, 116 L.Ed.2d 260 (1991), the Seventh Circuit indicated that “state court determinations of elements of offense are binding on federal habeas court[s].” Id . The mix of habeas corpus, due process, and jury instructions can be exceedingly complex. Although the petitioner’s aim with the due process claim is the abovementioned jury instruction, this due process issue functions at two levels. The first charges that the Indiana criminal statutory scheme on its face constitutes a due process violation insofar as the construction of the murder, involuntary manslaughter, and robbery statutes leads to ambiguity. The second charges that the murder statute as applied against the petitioner here is a due process violation. In order to resolve the issue of whether the Indiana criminal statutory scheme is facially invalid, this court notes that in “interpreting an ambiguous statute the court will seek to find the intention of the legislature.” Wayne LaFave & Austin Scott, Jr, Substantive Criminal Law, § 2.2 Interpretation of Criminal Statutes at 104. The legislative intent of the statute clearly illustrates that the crime of robbery was purposely included in the felony murder statute to effectuate the policy behind the felony-murder rule. This court notes that on the Bicentennial year of our Nation, the State of Indiana “finally joined the growing number of states that have recently revised and modernized their criminal codes.” See William Kerr, Foreword: Indiana’s Bicentennial Criminal Code, 10 Indiana Law Review 1 (1976). “The project began in ... 1970 when the Indiana Criminal Law Study Commission was created, and it continued for the next six years as the commission prepared first a proposed procedural code and then a new substantive code.” Id. In revising the code, the General Assembly “organized] and groupfed] ... related offenses and the classification of offenses according to the seriousness of each offense ____” Id. at 13. “Homicide ... one of the most serious crimes ... is placed at the beginning of the code [and] ... grouped with other offenses against the person.” Id. In addition, “the full range of felony classifications is reflected in its various provisions, ■ranging from a Class A to a Class D felony and including the capital felony category.” Id. “The major change ... is the elimination of the distinction between first and second degrees murder.” Id. “First degree murder has previously been defined as the killing of a human being purposely and with premeditated malice whereas second degree murder was the killing of a human being purposely and maliciously but without premeditation.” Id. “Under the new code, the two degrees of murder are abolished and murder is defined simply as the knowing or intentional killing of a human being.” Id. “The murder definition also continue to include the felony-murder rule from the prior law [and] adds kidnapping and unlawful sexual deviate conduct to the prior list of arson, burglary, rape, and robbery.” Id. (emphasis provided) The General Assembly also revised the involuntary manslaughter statute. “The gist of the offense under the prior definition was the involuntary or unintentional killing of a human being during the commission of an unlawful act.” Id More importantly, according to the author, Professor Kerr, the newly defined involuntary manslaughter statute “refer[ed] merely to a killing during an ‘offense’ without defining the type or nature of the offense that is required for the involuntary manslaughter.” Id. In addition, the author points out that robbery was also redefined and “[additional penalties are prescribed in the new code, based on the existence of aggravating circumstances____” Id “The code was originally enacted during the 1976 session of the General Assembly, but its effective date was delayed until July 1, 1977, to permit further study of the code’s provisions.” See William Kerr, Foreward: Indiana’s New and Revised Criminal Code, 11 Indiana Law Review 1. “A Criminal Code Interim Study Commission was then established to review the code and to make recommendations for changes by the General Assembly.” Id. “[T]he 1977 General Assembly accepted a recommendation to classify murder as a separate offense, sui generis [, and] “[a]s a result, the code now includes five felony classifications, including murder and Class A through Class D felonies.” Id. In addition, the General Assembly had to resolve two remaining problems in the involuntary manslaughter statute. Specifically, “[t]he new definitions apparently expanded the former offense of involuntary manslaughter to include both intentional and unintentional killings during the commission of any offense, but the definitions still presented two difficult issues.” Id. “The first issue is whether the related offense is independent of or a lesser included offense of involuntary manslaughter.” Id. “The second issue is whether the term ‘offense’ includes any and all misdemeanors and felonies or whether it is limited, such as to acts that are dangerous to life or are mala in se.” “In an effort to resolve both of th[is] issue, the 1977 General Assembly amended the definition of involuntary manslaughter in the new code and inserted a specific list of offenses that could give rise to a charge of involuntary manslaughter.” Id. at 11. “The first issue was ... resolved by limiting the related offenses to Class C felonies or to offenses of a less serious classification.” Id. “Since involuntary manslaughter is a Class C felony, except when a vehicle is involved, there is thus no issue concerning proportionality even if the related offense is considered to be a lesser included offense of involuntary manslaughter.” Id. “The other issue was resolved by limiting the offense to those that inherently pose a risk of serious bodily injury....” Id. The legislative history behind the Indiana criminal statutory scheme is not so ambiguous to constitute a due process violation. The felony murder doctrine evolved from the “English common law felony-murder rule ... that one who, in the commission or attempted commission of a felony, caused another’s death, was guilty of murder, without regard to the dangerous nature of the felony involved or to the likelihood that death might result from the defendant’s manner of committing or attempting the felony.” See Wayne LaFave & Austin Scott, Jr, Substantive Criminal Law, § 7.5 Crimes Against the Person at 206. “[A]s the number of felonies multiplied so as to include a great number of relatively minor offenses ..., it became necessary ... to limit the [rule] in some fashion.” Id. “In many states, the felony-murder rule has been limited in scope, and undoubtedly, the Indiana General Assembly intended to limit felony murder to include those felonies” which were felonies at common law [which includes robbery.] Id. at 208. This court also notes that “most modern felony murder statutes limit the crime to a list of specific felonies — usually rape, robbery, kidnapping, arson and burglary — which involve a significant prospect of violence.” Id. at 211. It is clear that such was the intent of the Indiana General Assembly. It should also be noted that murder is a specific intent crime requiring the specific intent to kill often termed “malice aforethought.” Id. § 7.1 Murder at 181. Courts have developed certain forms of implied “malice aforethought” including “intent-to-do-serious-bodily-injury murder,” “depraved-heart murder,” and the “felony-murder doctrine.” Id. Manslaughter “is an intermediate crime which lies half-way between the more serious crime of murder, at the one extreme, and, at the other extreme, justifiable or excusable homicide____” Id. § 7.9 Manslaughter at 251. “Manslaughter itself was subdivided into two branches— voluntary manslaughter (intended homicide in a heat of passion upon adequate provocation) and involuntary manslaughter (unintended homicide under certain circumstances ...). Id. The Indiana involuntary manslaughter statute is comparable to the “unlawful act” manslaughter. “ ‘Unlawful act’ is a phrase ... which ... includes” both misdemeanors and felonies “which for some reason will not suffice for felony-murder____” Id. § 7.13 Unlawful Act Involuntary Manslaughter at 288 (citing the Indiana Criminal Code 35-42-1-4). In light of the foregoing, this court finds that there is no ambiguity in the criminal statutes. Next, on the issue of whether the specific application of this statute to the petitioner is unconstitutional, this court notes that the due process machinations are best illustrated as a linear continuum beginning in state law and progressing into constitutional due process considerations. It is impossible to delve into the due process protections applicable to jury instructions without wading into state law; however, a federal court may not tackle state law issues under 28 U.S.C- § 2254. Oftentimes, it is difficult to distinguish between the two and oftentimes the two are inextricably intertwined. This court notes that the Constitutional limitations visited upon jury instructions by the due process clause usually relate to “legislative attempts to relieve the prosecution from the burden of proving some fact which is often difficult to establish.” See Wayne LaFave & Austin Scott, Jr., Substantive Criminal Law, Constitutional Limitations-Due Process and Statutory Presumptions, Defenses, and Exceptions. See also Nelson Roth & Scott Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell Law Review 446 (March 1985). A plethora of due process decisions relate to jury instructions that invoke the use of presumptions, inferences, or “mandatory rebuttable presumptions.” Id. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Suniga v. Bunnell, 998 F.2d 664 (9th Cir.1993). Another species of due process decisions relate to jury instructions that relate to affirmative defenses. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). There is a certain amount of complexity in these claims, and there are several recent Seventh Circuit cases that illustrate this assertion. See Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990) (evaluating the due process ramifications of Illinois’ murder and voluntary manslaughter instructions in light of the order in which the instructions were given and the burden-shifting content of the instructions); Rose v. Lane 910 F.2d 400 (7th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 515, 112 L.Ed.2d 526 (1990); United States ex rel. Fleming v. Huch, 924 F.2d 679 (7th Cir.1991); United States ex rel. Flowers v. Illinois Department of Corrections, 5 F.3d 1021 (7th Cir.1993). This court must ascertain whether the statute dictates the use of any presumptions, inferences, “mandatory rebuttable presumptions,” or affirmative defenses. In evaluating whether any of the abovementioned axioms are at issue in the jury instruction at issue here, state law plays an integral role in the due process claim. This court finds that the requisite elements for felony-murder based on robbery do not include any presumptions, inferences, rebuttable presumptions, or affirmative defenses. In addition, it is clear to this court that the legislative history on the statutes involved in this due process claim do not mandate the use of any presumptions, inferences, or “mandatory rebuttable presumptions,” or affirmative defenses. That is not the end of the due process analysis. In order to assert a viable due process violation based on a jury instruction issue, the petitioner must also establish that “the instruction is undesirable, erroneous, or ... ‘universally condemned,’ [and] that it violated some right” protected by the Fourteenth Amendment. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). More importantly, and certainly dispositive to the petitioner’s claim here, is the second part of the due process analysis. The second part was very cogently explained by Justice O’Connor in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982): Recently, for example, Justice Stevens, in his opinion without dissent in Henderson v. Kibbe, [431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203] [(1977)] summarized the degree of prejudice we have required a prisoner to show before obtaining collateral relief for errors in the jury charge as “ ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,’ not merely whether ‘the instruction is undesirable, erroneous, or even universally condemned.’” 431 U.S., at 154, 97 S.Ct., at 1736 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). We reaffirm this formulation, which requires that the degree of prejudice resulting from instruction error be evaluated in the total context of the events at trial. As we have often emphasized: “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, supra, at 146-147, 94 S.Ct., at 400 (citations omitted). Moreover, “a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.” Id, at 147, 94 S.Ct., at 400. Id. In ascertaining the propriety of the jury instructions in light of the aforementioned authorities, this court finds that the petitioner’s due process claim must fail under the abovementioned due process test. Absent a due process violation, this claim represents a dispute over the basic elements of the statute. On this issue, it is clear to this court that the definitions and elements of the Indiana criminal code are strictly a matter of state law. A matter of state law is not within the purview of this court’s habeas jurisdiction. See Stephens v. Miller, 13 F.3d 998 (7th Cir.1994) Errors of state law are also not within the purview of this court’s § 2254 jurisdiction. Although this court notes that the line between what is a matter of state law as reflected by the jury instructions and what is a due process violation requires succinct evaluation. Here, state law determines what the elements of state law are, but, due process dictates that the jury instructions must adequately reflect that state law. In this habeas petition, the jury instruction claim only relates to a dispute over how the Indiana criminal statutes are applied in the Indiana criminal courts. A state claim cloaked in due process appears untenable in light of the abovementioned discussion. On this issue, it is clear this court must look to state law, and state law indicates that felony murder can be based on robbery. All of the elements stemming from the criminal code were included in the jury instructions. This application and construction of the above-mentioned statutes are congruent with numerous decisions from the state courts of Indiana. Specifically, this court notes that the pronouncements of the Indiana Supreme Court on this issue in Averhart v. State, supra, are very persuasive. In Averhart, the defendant-appellant claimed that “the post-conviction court was in error in rejecting his claim that there was error in the instructions on the charge of felony murder.” Id. Specifically, the defendant-appellant claimed that “the instructions were erroneous in that they did not require the State to prove a class A felony robbery.” Id. On this issue, the Indiana Supreme Court in Averhart explained: With respect to this claim, the post-conviction court found: That the trial court properly instructed the jury on the elements of the offense of Felony-Murder, including the underlying felony of Robbery, under I.C. 35-42-1-1 and I.C. 35-42-5-1. That the trial court instructed the jury that in considering any single instruction the jury should consider it with all other instructions given. That trial counsel for the Petitioner failed to object to any of the instructions given to the jury at the conclusion of the case. Post-Conviction Record at 1227. The felony murder charge alleged that appellant shot and killed George Yaros while engaged in the process of taking money from David Reba through the use or threat of use of force. This charge does not specifically allege the statutory aggravating factors required for the class A felony of robbery. The felony murder statute requires that the death of another result during the commission of the felony of robbery. Robbery is defined at Ind.Code 35-42-5-1. There is no basis in this charge, the felony murder statute, or reason itself, to condemn the court’s instructions. Id. at 934-35. Here, the use of the due process clause premised on jury instructions is to use due process “as a back door to review questions of substantive law.” Bates v. McCaughtry, 934 F.2d 99 (7th Cir.1991). In Bates, the petitioner asserted that his state criminal conviction was unconstitutional because the state misapplied state law; and therefore, violated the pronouncements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On this issue, the Seventh Circuit, speaking through Judge Easterbrook, explained that “Jackson [v. Virginia, supra] prevents the state from evading the burden of persuasion established by the due process clause of the fourteenth amendment.” Id. (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)); see also Jones v. Thieret, 846 F.2d 457 (7th Cir.1988). In explaining that the petitioner “cannot obtain a second opinion on the meaning of state law through the maneuver of making a claim under Jackson,” the Bates court explained: Jackson establishes that states must act on the basis of sufficient evidence. The principle seems unproblematic: it is barbaric to imprison persons who no reasonable juror could think had committed a crime. Implementing Jackson is not so easy as stating its principle, however. Judgments represent the application of law to fact. Evidence can be “insufficient” only in relation to a rule of law requiring more or different evidence. When a state court enters or affirms a conviction, it is saying that the evidence satisfies the legal norms. These norms are for the state to select. State law means what state courts say it means. See, e.g., Garner v. Louisiana, 368 U.S. 157, 166, 7 L.Ed.2d 207, 82 S.Ct. 248 [253] (1961) (“We of course are bound by a State’s interpretation of its own statute and will not substitute our judgment for that of the State’s when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court.”); Hebert v. Louisiana, 272 U.S. 312, 316-17, 71 L.Ed. 270, 47 S.Ct. 103 [104] (1926); Patterson v. Colorado, 205 U.S. 454, 459-61, 51 L.Ed. 879, 27 S.Ct. 556 [556-58] (1907). A claim that the state court misunderstood the substantive requirements of state law does not present a claim under @ 2254. “A federal court may not issue the writ on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41, 79 L.Ed.2d 29, 104 S.Ct. 871 [875] (1984). See also, e.g., Smith v. Phillips, 455 U.S. 209, 221, 71 L.Ed.2d 78, 102 S.Ct. 940 [948] (1982). The difference between unreviewable legal interpretations and factual claims open under Jackson establishes a formidable problem of implementation. Id. at 102. In illustrating this very cogent evaluation of the law under Jackson, the Bates court “[c]onsider[ed] four situations in which a defendant might say that the evidence is insufficient....” Id. The analysis of Jackson in Bates mirrors the petitioner’s due process claim here. Specifically, the Bates court outlined several scenarios, two of which are relevant here, that illustrate the complexities of this issue: (2) Defendant believes that the combination of elements X, Y, and Z is an offense. The court disagrees, holding that the state need prove only X and Y. After a trial at which the prosecution introduces no evidence of Z, the court convicts the defendant. (3) State law defines the combination of elements X, Y, and Z as criminal. Defendant believes that element Z can be satisfied only if the state establishes fact Z’, but the state court disagrees. After a trial at which the prosecution introduces some evidence of Z but does not establish Z’, the court convicts the defendant. Id. After describing the various hypothetical situations, the Bates court explained: Case 2, by contrast, presents a pure question of state law. If the state court is correct in its interpretation of the statute, then the evidence is sufficient; whether the state court correctly understands the law is a question beyond the reach of a federal court on collateral attack. E.g., Jones v. Thieret; Garcia v. Perringer, 878 F.2d 360, 362 (11th Cir.1989); Holt v. Wyrick, 649 F.2d 543, 547 (8th Cir.1981). But cf. McGuire v. Estelle, 902 F.2d 749 (9th Cir.1990), rehearing denied, 919 F.2d 578 (1990), cert. granted, [— U.S. -] 112 L.Ed.2d 1177, 111 S.Ct. 1071 (1991). Case 3 is just a variant of case 2. What is essential to establish an element, like the question whether a given element is necessary, is a question of state law. To say that state law “rightly understood” requires proof of Z’, and that the evidence is insufficient because the prosecution failed to establish this, is to use Jackson as a back door to review of questions of substantive law. Whenever courts consider that possibility expressly they reject claims that convictions should be reversed because state courts misunderstood or misapplied state law. E.g., Gryger v. Burke, 334 U.S. 728, 731, 92 L.Ed. 1683, 68 S.Ct. 1256 [1257] (1948). An equally firm rebuff is appropriate when the same claim appears in Jacksonian guise, we concluded in Jones. Id. While this court is fully aware of the differences between the due process claim here and the issue in Bates, there is no question that there are many parallels worthy of consideration. In light of the foregoing analysis of the statutes on their face and as applied, this court finds no constitutional due process violation. III. Next, the petitioner asserts a claim based on prosecutorial misconduct and proffers several excerpts from the prosecution’s closing arguments in illustration. Recently, in United States v. Reed, 2 F.3d 1441, 1450 (7th Cir.1993), the Seventh Circuit, speaking through Judge Coffey, explained the requisite considerations on the issue of prosecutorial misconduct: To succeed in his claim, [the petitioner] must demonstrate that “the prosecutor’s comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 91 L.Ed.2d 144, 106 S.Ct. 2464 [2471] (1986) (citation omitted). “When analyzing allegations of prosecutorial misconduct during argument, we look at the disputed remarks in isolation to determine if they are proper. If the statements are proper, our analysis ends. If the statements are improper, our second step is to look at the remarks in light of the entire record to determine if the defendants were deprived of a fair trial.” United States v. Badger, 983 F.2d 1443, 1450 (7th Cir.), cert. denied, [— U.S. -] 124 L.Ed.2d 293, 113 S.Ct. 2391 (1993). In Badger, we held that five factors must be considered when weighing the propriety of a prosecutor’s comment: “1) the nature and seriousness of the prosecutorial misconduct, 2) whether the prosecutor’s statements were Invited by conduct of defense counsel, 3) whether the trial court instructions to the jury were adequate, 4) whether the defense was able to counter the improper argument though rebuttal, and 5) the weight of the evidence against the defendant.” Id. The Attorney General argues that the petitioner has procedurally defaulted on all of allegations of unchallenged prosecutorial misconduct except for a singular instance. More directly, the Attorney General argues that the various allegations of prosecutorial misconduct are unfounded. The Attorney General maintains that the only claim not defaulted involves the “hot dog” comment. Specifically, the petitioner alleges the following portion of the closing argument was improper: Does the man speak baloney, garbage, that is corroborated nowhere, or, dirtbag or not, does he speak the truth, because I can prove it five ways from Sunday, and I’ve got a list over here. It’s my responsibility, working for Steve, once in awhile to teach seminars, to lecture to our deputies and to other deputies regarding how you do a final argument. Okay? I’m supposed to be a hotdog. The first think [sic] I tell them is, don’t use your notes. I’m going to use my notes. The reason is I’ve got too many things to read or I’ll miss ’em. There are thirteen separate, distinct, relevant and overwhelming items of evidence____ See Respondent’s Supplemental Memorandum. In light of the abovementioned passage from the prosecutor’s closing argument, the petitioner alleges that an objection should have been lodged to call attention to the fact that the prosecutor’s argument was based on his personal opinion and was intertwined with references to his official position and stature in the government. In Resnover v. Pearson, 965 F.2d 1453 (7th Cir.1992), cert. denied sub nom. Resnover v. Carter, — U.S. -, 113 S.Ct. 2935, 124 L.Ed.2d 685 (1993), the Seventh Circuit evaluated the closing argument of a prosecutor in light of the allegation that the prosecutor has “unfairly called attention to a personal friendship between the prosecutor and Jack Ohrberg [a police officer involved in the underlying criminal investigation.] Id. Specifically, in the closing argument, the prosecutor stated: It’s been a long time since these guys killed my detective. This gun, in his hands took my detective’s life. There’s another rule that says we [lawyers] can’t testify, we can’t give facts. Well, I was Jack Ohrberg’s associate in law enforcement for a long time. And as he was Homicide Supervisor and, I was his lawyer---- Now I don’t want these guys convicted of anything because my friend died. I want them convicted because they did it. Id. On this issue, the Resnover court explained that “[t]he comments about a relationship between Ohrberg and the prosecutor did not deprive [the petitioner] of any right.” Id. The Resnover court resolved that “[t]he prosecutor conveyed no substantive, personal information to the jury through these comments.” Id. More importantly, the Resnover court explained that “[i]ndeed, looking at the prosecutor’s presentation as whole, it is clear that the prosecutor focused the jury’s attention on the admitted evidence.” Id. In invoking the “hotdog” reference, the prosecutor commented on his teaching relationship with other prosecutors in the office. Although there is a personal reference, it is solely used as a tool to recite a laundry list of evidentiary considerations to the jury. Here, as in Resnover, this court finds that the prosecutor “conveyed no substantive, personal information,” and “the prosecutor focused the jury’s attention on the admitted evidence.” Id. The petitioner also asserts prosecutorial misconduct in the form of false testimony. On this issue, the petitioner argues that the prosecution misled the jury by failing to disclose the actual agreement reached between the State and a jail informant regarding his testimony. An extensive post-trial hearing was held on this issue and this issue was'also reviewed by the Indiana Supreme Court in the direct appeal. A substantial quotation from Burris I is in order considering the fact-intensive nature of this issue: One of the chief witnesses for the prosecution was William Allen Kirby. Kirby had shared a cell with defendant Burris in the Marion County Jail where the defendant admitted his involvement and culpability in the murder. Kirby agreed to testify against the defendant and recounted the defendant’s story as follows: The defendant and his friends were in need of money. They entered a dance contest but failed to win anything. They took a cab to the “M & L Club” (Kirby said he was not sure “M & J Social Club” was what the defendant said but he knew the name was alphabetical) and on the way to the club, the defendant saw an envelope containing money on the front seat of the cab. Kirby asked why the men did not take the money at that time. The defendant replied they were not prepared to do so because they did not have their “roseoes” (pistols). Id. at 176. Here, in seeking a writ of habeas corpus, the petitioner revisits this issue and again “argues that his conviction should be reversed because the State did not disclose the ‘deal’ it struck with a witness, William Kirby, in order to get Mr. Kirby to testify.” Id. at 183. In evaluating this claim, the Indiana Supreme Court revisited the facts at issue: Kirby testified, as related above, about the murder as it was described to him by the defendant. This encounter took place in the Marion County Jail. At that time, Kirby was facing two counts of robbery, a count of being a habitual offender, and a minor drug charge. Kirby had reached a tentative agreement to plead guilty to the robberies and receive two fifteen-year sentences, to be served concurrently, while the habitual offender count would be dropped. The State alleges that after this plea agreement had already been reached, Kirby was asked to testify about the murder. In exchange for Kirby’s cooperation in testifying, another five years would be taken off the robbery sentences. During the trial, Kirby stated that it was his friendship with the deceased, not the five-year reduction, that influenced his decision to testify. The defendant argues that this statement by Kirby and the events surrounding the plea agreement misled the jury and he should be awarded a new trial. When William Kirby took the stand in December, 1980, the prosecutor asked him if it was true that he was serving a ten year sentence as a result of pleading guilty to charges of robbery. Kirby answered that this was true. The guflty plea had been entered a few months earlier in August, 1980. The prosecutor then asked questions concerning Kirby’s relationship with the defendant. From the questions and answers, it appeared that Kirby had been incarcerated, along with the defendant, in the Marion County Jail on February 7, 1980. The charges which caused Kirby to be arrested were the same charges that his later guilty plea agreement was based upon. The following exchange then took place between the prosecutor and Kirby: Q Now, prior to that date, before the seventh (7th) of February, had you already reached an agreement with the State of Indiana with regard to a plea of guilty? A Yes. Q And you were awaiting ... A Fifteen (15) ... Q ... a hearing, at which time you were going to plead guilty for a sentence of fifteen (15) years, is that right? A Right. Q Subsequent to your proving information to me with regard to this case that plea agreement was amended, was it not, so that you would do a sentence of ten (10) years and not fifteen (15)? A It was. Kirby then recounted in great detail the events surrounding the murder as they had been told to him by the defendant. Just before the direct examination concluded, the prosecutor again raised the topic of reducing the fifteen year sentence to ten years: Q ... And your agreement with the State of Indiana to plead guilty to the charges which were pending against you at the time you had this information given to you by [the defendant] had already been reached at the time you took this statement. A Yes. Q And what happened was that, as a result of your agreement to cooperate and testify in this trial, you simply received a five (5) year reduction in the amount of time you would do. A Yes, I received this, but this was not requested, you know, because I, you know, like I’m saying, you know, I am a criminal element, also. You see what I’m saying? But this was a (sic) act that I couldn’t condone, this (meaning, the victim) was a personal friend of mine, you know, and I told the prosecution, Prosecutor’s Office, that I would testify irregardless (sic). Q It’s a fact, is it not, that at no time did you make a request for a reduction in your sentence as a condition of your testifying? A That’s right. The defendant still argues that the prosecutor misled the jury because he did not disclose all the facts surrounding the plea agreement. By this, the defendant is referring to the State’s agreement to drop the habitual offender count and impose a four year term on the minor drug charge, which would then be served concurrently with the ten year robbery sentence. This allegation was one reason for conducting a hearing on the defendant’s Second Belated Motion to Correct Errors. Sifting through the transcript of the hearing, we find that the State and Kirby had tentatively reached an agreement to drop the habitual offender count and impose two concurrent fifteen year terms on the robbery charges before Kirby ever met the defendant. Kirby had a co-defendant named Sisson who pleaded guilty to robbery and received a fifteen year sentence. It appears that the prosecutor in Kirby’s case felt that Sisson was more culpable than Kirby and therefore, Kirby’s sentence should not exceed Sisson’s term of years. Gregory Garrison, who prosecuted defendant Burris, testified that he was informed by other prosecutors about the tentative agreement between the State and Kirby. Garrison stated at the hearing: “I indicated to [Kirby] that his existing plea bargain of fifteen years, might be reduced to some extent, contingent upon his testimony and his successful taking of a polygraph examination____” The prosecutor voluntarily disclosed the agreement made with Kirby: a reduction of his fifteen year sentence to ten years. The defense had access to the materials surrounding the guilty plea and could have brought out these other allegations in order to try to impeach Kirby on crossexamination____ The prosecutor is only obligated to disclose what inducement was used to gain the cooperation of the witness. In this case, the jury was informed that the witness’ fifteen year sentence was the result of a plea agreement and that it was reduced by five years as a result of Kirby’s testimony. The prosecutor did not have to tell about the habitual offender count being dropped because that matter had been settled before Kirby agreed to testify. As for the defendant’s other allegation that Kirby lied when he stated that he needed no inducement to testify, there is nothing in the record to support this allegation. Kirby had insisted all along that he would testify even if he did not receive that five year reduction. Although the final guilty plea was made contingent upon his presence as a witness, there still was no evidence that the State had to do this in order to gain his testimony. The State may have done this in order to fortify its position and warn Kirby that he could not be equivocal; however, it is still true, as was brought out before the jury, that Kirby never insisted upon the five year reduction before he agreed to testify. Thus, the jury was able to judge, both effectively and properly, the witness’ credibility. ' Id. at 183-85. Recently, in reported decisions there have been extremely unfortunate examples of prosecutorial misconduct. See U.S. v. Burnside, 824 F.Supp. 1215 (N.D.Ill.1993). There, Judge Holderman’s comprehensive opinion reads like a textbook in how a federal prosecution should not be conducted. With all deference, the alleged prosecutorial misconduct in this case does not even come close to violating the mandates shown there. See also U.S. v. Andrews, 824 F.Supp. 1273 (N.D.Ill.1993). The damning testimony against this petitioner in his state trial, was that of his erstwhile cell mate by the name of William Kirby. The Supreme Court of Indiana dealt extensively with the Kirby testimony and its implications. Certainly, this Court under 28 U.S.C. § 2254(d) has a right to presume as correct the facts found by the highest court in Indiana, which are supported by the record, but is certainly entitled to make an independent view of the record and arrive at an independent judgment as to whether or not those facts show a violation of the Constitution of the United States. In regard to the testimony of William Kirby, there is no constitutional error in admitting his testimony, and no showing of prosecutorial misconduct with reference to it. Finally, the petitioner lists several other incidents of prosecutorial misconduct. The Attorney General maintains that those incidents have been procedurally defaulted; and are, therefore, barred from review under § 2254. To be sure, it is improper for the prosecutor to express his personal opinion about a defendant’s guilt. See United States v. Young, 470 U.S. 1, 17, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985). Here, this court must decide whether the prosecutor engaged in “permissible comment upon what the evidence showed and not a statement of his personal opinion regarding the defendant’s guilt.” United States v. Auerbach, 913 F.2d 407 (7th Cir.1990). The petitioner also asserts that the prosecutor improperly bolstered his ease by referring to his position as a government official. “It is impermissible for the prosecutor to strengthen its case by invoking the prestige of the United States Id. (citing United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.1984)). “A single reference to the fact that the prosecutors represent the government does not necessarily represent an attempt to improperly sway the jury’s evaluation of the evidence.” Id. It is manifest, as Justice Sutherland so correctly stated, that the prosecutor “may strike hard blows, [but] is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). This court will not spend numerous pages of this opinion evaluating procedural default and the specifics of prosecutorial misconduct on this claim in light of the recent and dispositive Supreme Court opinion of Brecht v. Abrahamsom, — U.S. -, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See also United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (the Supreme Court applied a “harmless error” analysis to prosecutorial misconduct). government.” In Brecht, the Supreme Court revisited harmless error within the framework of habeas corpus and prosecutorial misconduct. In Brecht, the Court, speaking through Chief Justice Rehnquist, considered the issue of the applicable standard for the review of federal constitution error. In Brecht, the petitioner “was serving time in a Georgia prison for felony theft when his sister and her husband[, who was a county prosecutor,] ... paid the restitution for petitioner’s crime and assumed temporary custody of him.” Id. The petitioner’s sister and husband brought the petitioner “home with them to ... Wisconsin, where he was to reside with them before entering a halfway house.” Id. The petitioner’s behavior while residing with his inlaws was a source of very serious contention especially on the topic of drinking alcohol. On the day of the crime, the “petitioner broke into their liquor cabinet and began drinking.” Id. When his sister’s husband returned home, the petitioner shot him with a rifle he had found in an upstairs room. The shot was fatal. The petitioner sought a writ of habeas corpus based on the decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which prohibits a prosecutor’s use of post-Miranda silence. The District Court agreed with the petitioner that the precepts of Doyle were violated during the state criminal trial. More importantly, the District Court found that the violation amounted to error that was harmless beyond a reasonable doubt. In so doing, “the District Court based its harmless-error determination on its view that the State’s evidence of guilt was not ‘overwhelming,’ and that the State’s references to petitioner’s post-Miranda silence, though ‘not extensive,’ were ‘crucial’ because petitioner’s defense turned on his credibility.” Id., — U.S. at-, 113 S.Ct. at 1715. The District Court granted the writ on this basis. The Seventh Circuit reversed. The Seventh Circuit “concluded that the State’s references to the petitioner’s post-Miranda silence violated Doyle, but it disagreed with both the standard that the District Court had applied in conducting its harmless-error inquiry and the result it reached.” Id. at-, 113 S.Ct. at 1716. The Seventh Circuit held “that the Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967) ], harmless-error standard does not apply on federal habeas.” Id. According to the Seventh Circuit, the test is whether the Doyle violation “had substantial and injurious effect or influence in determining the jury’s verdict,” which is the standard enunciated by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Id. On this issue, the Court initially explained that “a Doyle error fits squarely into the category of constitutional violations which we have characterized as ‘trial error.’ ” Id., — U.S. at-, 113 at 1717. Next, the Court pointed out that the federal habeas statute “says nothing about the standard” and that “[i]n the absence of any express statutory guidance from Congress, it remains for this Court to determine what harmless-error standard applies on collateral review____” Id. at-, 113 S.Ct. at 1719. Finally, and most importantly, the Court explained that: The principle that collateral review is different from direct review resounds throughout our habeas jurisprudence. See e.g., Wright v. West, 505 U.S. [-], 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (opinion of THOMAS, J.); Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 1072, 103 L.Ed.2d 334 (1989) (opinion of O’CONNOR, J.); Pennsylvania v. Finley, 481 U.S. 551, 556-557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987); Mackey v. United States, 401 U.S. 667, 682, 91 S.Ct. 1160, 1174, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). Direct review is the principal avenue for challenging a conviction. “When the process of direct review — which, if a federal question is involved, includes the right to petition this Court for a writ of certiorari — comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3392, 77 L.Ed.2d 1090 (1983). In keeping with this distinction, the writ of habeas corpus has historically been regarded as an extraordinary remedy, “a bulwark against convictions that violate ‘fundamental fairness.’” Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982) (quoting Wainwright v. Sykes, supra, 433 U.S. [72] at 97, 97 S.Ct. [2497] at 2511 [53 L.Ed.2d 594] [ (1977) ] (Stevens, J., concurring)). “Those few to are ultimately successful [in obtaining habeas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation.” Fay v. Noia, 372 U.S. 391, 440-441, 83 S.Ct. 822, 850, 9 L.Ed.2d 837 (1963). See also Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 2623, 91 L.Ed.2d 364 (1986) (plurality opinion) (“The Court uniformly has been guided by the proposition that the writ should be available to afford relief to those ‘persons whom society has grievously wronged’ in light of modern concepts of justice”) (quoting Fay v. Noia, supra, 372 U.S. at 440-441, 83 S.Ct. at 850); Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 2785, n. 5, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment) (Habeas corpus “is designed to guard against extreme malfunctions in the state criminal justice systems”). Accordingly, it hardly bears repeating that “‘an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.’” United States v. Frady, 456 U.S. 152