Frazier Crockett is currently serving sentences of natural life in prison without parole and 30 years’ imprisonment for his 1996 convictions for two counts of first degree murder and two counts of robbery. After unsuccessful appeals to the Illinois Appellate Court and Illinois Supreme Court, Crockett filed a petition for a writ of habeas corpus in the Northern District of Illinois. The court denied his petition, and he filed a notice of appeal. The district court granted Crockett’s motion for a certificate of appealability on one issue: Were Crockett’s constitutional rights denied when he was not timely informed that the jury had sent a question to the trial judge during deliberations?
I. Background
Crockett’s convictions arise from the robbery and fatal shooting of two men, Javier Guzman and Jorge Torres, in an alley in Chicago’s Rogers Park neighborhood. Upon Crockett’s arrest, he gave a statement to police describing the crimes: He and James Swansey, with a gun drawn, followed two men into an alley and demanded that the men lie down. Swansey asked the men if they had any money on them, but the men claimed they did not. Crockett pointed the gun at the men while Swansey searched them. Crockett then also searched the men and found money in one man’s pocket. He suggested to Swan-sey that they “pop” the men for lying, and Swansey shot them both in the head.
*1186 At trial, it was undisputed that Swansey was the trigger-man. Three of Crockett’s acquaintances testified for the State that Crockett told them that he and Swansey robbed the men and Swansey shot them. Crockett’s theory of defense was that he was present and watched the commission of the crimes but did not participate. Crockett testified at trial that on the night of the murders he had been walking around with Swansey and Kenneth Henry. (Henry was one of the State’s witnesses at trial and the person who initially provided the tip to police that Crockett had been involved in the crimes.) Crockett claimed that he stopped to talk to a friend on the street when Swansey and Henry followed two men into the alley. He was attempting to catch up to Swansey and Henry and was standing in the entrance to the alley sixty feet away when Henry and Swansey robbed the men. He began to run away after Swansey fired the first shot. He later accepted “hush money” from Henry to keep quiet about what he had witnessed. Crockett explained that his prior statement to police implicating himself (which did not mention Henry) was a lie to protect Henry, whom he feared, because Henry was a drug dealer for whom Crockett sold drugs.
During deliberations, the jury sent three notes to the judge. The first two notes asked for a dictionary and for the reports of police detectives. The judge directed the sheriff to contact defense counsel by telephone about the notes, and the court conferred with counsel about the appropriate response. After the parties conferred, the judge declined the jury’s requests and directed the jury to continue deliberating. Later, the jury sent a third note to the judge asking for a definition of the word “abet.” 1 The judge again directed the sheriff to contact defense counsel, but for unknown reasons the sheriff either did not contact defense counsel or was unable to reach them. The judge did not respond to the jury, and the jury eventually reached a guilty verdict. The judge did not inform defense counsel before or after the verdict that the jury had asked a third question.
After the trial, defense counsel discovered the third note from the jury in the court’s case file. In a post-verdict motion for acquittal or a new trial, defense counsel included affidavits from three jurors. All three jurors stated that they had requested a dictionary to look up the word “abet” but received a response from the trial judge to keep deliberating. All three jurors stated that they later sent a note specifically asking for the definition of “abet” but received no response. One juror explained:
Some of the jurors sent out a note asking for the definition of the word abet. We waited for a response but never received one. Eventually some of the jurors came up with their own definition because we had no legal definition. We decided that Frazier Crockett was guilty of aiding and abetting Kenneth Henry and James Swansey because, while he observed the robbery and murder from 60 feet away, Frazier Crockett did nothing to stop them, he kept the $40.00 hush money after the fact, and he never went to the police. The jury did not determine that Frazier Crockett encouraged, solicited, promoted or facilitated the commission of the armed robberies and murders.
*1187 In less detail, the other two jurors provided similar accounts of the deliberations, stating that they concluded Crockett was guilty because he observed the crime and never went to the police. The jurors made conflicting estimates as to how much time had passed between sending the note and reaching the verdict: one estimated fifteen minutes, another estimated between thirty minutes and one hour, and a third estimated one hour.
The trial court denied Crockett’s motion for a new trial. On appeal, the Illinois Appellate Court found that the definition of the word “abet” was central to Crockett’s defense because if the jury “mistakenly believed that ‘abet’ could encompass less culpable behavior than the other terms [in the jury instruction], such as being present at the commission of a crime and doing nothing about it, the defendant’s defense was precluded.”
People v. Crockett,
Crockett filed a habeas petition under 28 U.S.C. § 2254 with the district court. The court noted that it does not violate a defendant’s constitutional right to a fair trial when a deliberating jury asks a question but reaches a verdict before the court can reasonably respond. Crockett contended that the situation was different where the trial judge entirely failed to inform the defense counsel before the verdict that the note even existed; the court agreed the distinction could be important but found it to be irrelevant in light of the Illinois Appellate Court’s finding that the trial judge did attempt to contact the defense counsel. While noting that Crockett had never appealed the state court’s decision to place the burden upon him, the district court inquired as to whether the Illinois Appellate Court did so in error. The court reasoned that if there were a constitutional error, then the Illinois Appellate Court should have applied the harmless error analysis of
Chapman v. California,
II. Analysis
We review the district court’s findings of fact for clear error and its legal conclusions de novo.
Rizzo v. Smith,
A state court’s decision is “contrary” to clearly established federal law if the state court “reached a result opposite to that reached by the Supreme Court on materially indistinguishable facts.”
Virsnieks v. Smith,
Crockett’s appeal implicates both the legal and factual components of AEDPA. He argues that: (1) the Illinois Appellate Court erred in concluding that the trial judge did not commit constitutional error when it failed to notify defense counsel about the question and respond to the jury prior to the verdict; (2) the Illinois Appellate Court’s determination that the trial judge did not unreasonably delay in answering the jury’s question prior to the verdict was unreasonable in light of the evidence; and (3) the Illinois Appellate Court found that the trial judge erred in not informing defense counsel of the note after the verdict but applied the wrong burden analysis, contrary to Supreme Court precedent. 3
A. The Trial Court’s Actions Prior to the Verdict
Crockett’s legal challenge focuses upon his right to a fair trial, his right to counsel,
*1189
and his right to be present during all stages of trial. He cites several Supreme Court cases:
Maine v. Moulton,
The Illinois Appellate Court first noted that it would have been improper for the trial judge to respond to the jury before contacting counsel, and the trial judge appropriately did not do so. This is consistent with the principle set forth by the Supreme Court in
Rogers.
The court then held that it is not error for a trial judge to fail to respond to a question by the jury if the jury reaches a decision before a response can reasonably be provided. Crockett does not cite a case in which the Supreme Court held the opposite on materially indistinguishable facts to show that this decision was “contrary” to Supreme Court precedent; nor does he show that the decision involved an “unreasonable application” through the appellate court’s unreasonable refusal to extend a rule to a context where it should have applied.
Virsnieks,
Crockett’s factual challenge focuses upon the Illinois Appellate Court’s determination that Crockett failed to show that the trial court unreasonably delayed in informing defense counsel of the note prior to the verdict. Crockett claims that the record shows the trial court did unreasonably delay, and the Illinois Appellate Court’s conclusion to the contrary was unreasonable in light of the evidence. Applying the standard from
Brecht v. Abrahamson,
*1190
Factually, we agree with Crockett that the record shows that the trial judge had the telephone number for the defense counsel, the sheriff successfully contacted defense counsel by telephone for the previous jury notes, and defense counsel asserted that they remained available by telephone during the time period of the third question. Crockett argues that this demonstrates “there were means and opportunity to tell defense counsel about the third note.... However, they were not told.” The Illinois Appellate Court’s findings of fact did not contradict Crockett’s version of the facts — the court never claimed that defense counsel were unavailable or had been told about the note. However, the court accepted the trial judge’s statement that an attempt to contact counsel was made because the trial judge directed the sheriff to call counsel, and Crockett does not provide us with clear and convincing evidence that the judge did not give the sheriff this direction.
See
28 U.S.C. § 2254(e)(1). Armed with that conclusion, the Illinois Appellate Court then assessed whether the delay in responding to the jury was unreasonable. The affidavits of the jurors show that the trial judge received the note from the jury and did not respond for fifteen minutes to one hour. The Illinois Appellate Court cited several cases in which a judge did not respond to a jury’s question:
People v. Sims,
Crockett notes that to the extent the reasonableness inquiry was based upon a factual determination, the Illinois Appellate Court did not make a finding that the trial court acted reasonably; instead it
refused
to find that the trial court acted
unreasonably.
While this is true, it does not help Crockett in satisfying his burden under AEDPA. The Illinois Appellate Court accepted the facts that Crockett developed on appeal. Its decision was not based upon an unreasonable determination of the facts in light of the evidence; rather, its decision was based upon the lack of evidence that would have been used as “factors ... in determining whether reversible error was committed.”
Crockett,
B. The Trial Court’s Actions After the Verdict
Crockett’s final argument is that the Illinois Appellate Court made a legal error by employing the wrong burden of proof analysis. That court noted that the trial judge “clearly erred” by not informing defense counsel of the jury note as soon as practicable after the verdict but held that the error was harmless.
Crockett,
Crockett argues that because the Illinois Appellate Court concluded that the trial court made a constitutional error, it should have applied the burden of proof from
Chapman;
this would require the State, not Crockett, to satisfy the burden of proof, and the State must prove that the error was not just harmless error but harmless beyond a reasonable doubt.
Crockett argued to the Illinois Appellate Court that not informing counsel of the jury note after the verdict was constitutional error, citing
People v. Childs,
[I]n spite of this violation of the defendant’s right to be informed by the trial court, we must conclude that the error was harmless. The record is clear that the defendant in fact discovered the note before he made his motion for a new trial, which would point to the actual discovery of this note well within the thirty-day period following the verdict. The record is further clear that the motion was not argued until several months later, giving the defendant ample time and opportunity to investigate and make a record of the circumstances prevailing at the time the jury question was sent.
Id. It is not clear, as Crockett contends, that the court applied the burden of proof to him on this issue. And while the court did not use the term “harmless beyond a reasonable doubt,” it is possible that the court was applying the correct standard, albeit ambiguously.
Even assuming that the Illinois Appellate Court held the error was constitutional and failed to apply the harmless beyond a reasonable doubt standard to the State, Crockett encounters another problem — he failed to present this claim to the Illinois Supreme Court. The district court discussed Crockett’s procedural default of a claim that the Illinois Appellate Court had inappropriately placed the burden on him in proving that prior to the verdict the trial court unreasonably delayed in answering the jury’s question. The district court did not discuss whether Crockett procedurally defaulted his after-the-verdict
Chapman
claim because Crockett did not raise that claim in the district court either. A procedural default occurs where a habe-as petitioner “has exhausted his state court remedies without properly asserting his federal claim at each level of state court review.”
Malone v. Walls,
In Crockett’s petition for leave to appeal to the Illinois Supreme Court, the extent of his claim was that “[t]he court was required to convene the parties and then provide the jury with a clarifying instruction. Failure to do so deprived the defendant of a fair jury adjudication, by a properly instructed jury” (internal citation omitted). He never alerted the Illinois Supreme Court that the failure to inform him of the jury note after the trial was a constitutional error to which the appellate court applied the wrong burden of proof. A “hypertechnical congruence” of the claims is not required between federal and state court for a claim to be fairly presented,
Anderson v. Benik,
When a petitioner presents a defaulted claim for federal habeas review, we may consider it only if he can establish cause and prejudice for the default or that the failure to consider the claim would result in a fundamental miscarriage of justice.
Johnson v. Loftus,
III. Conclusion
We AffiRM the district court’s denial of Crockett’s petition for habeas corpus.
Notes
. The jury’s instruction on accountability included the word "abet”: "A person is legally responsible for the conduct of another person when either before or during the commission of an offense and with the intent to promote or facilitate the commission of the offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning or the commission of the offense.”
. Crockett also unsuccessfully challenged an evidentiary ruling and the exclusion of prospective African American jurors under Bat-son v. Kentucky in his appeals to the Illinois Appellate Court and Illinois Supreme Court. Those issues were considered and rejected again by the district court in Crockett's habe-as petition, and the district court declined to grant Crockett a certificate of appealability on those two issues.
. Crockett also requests that we grant his motion to supplement the record on appeal with eleven items that were not included in the record at the district court. Federal Rule of Appellate Procedure 10(e) permits us to allow correction or modification of the record on appeal where items were omitted by error or accident. Although we usually decline to supplement the record on appeal, two of the items offered by Crockett are helpful for context — the jurors' affidavits and the accountability instruction. Therefore, we grant his motion to supplement the record with those two items and deny the motion as to the other nine items.
See Ruvalcaba v. Chandler,
. Crockett first argues that the error was "structural error” (automatically requiring reversal) because it did not occur during the trial and hence could not be “trial error,” which the
Brecht
standard addresses. We reject the notion that all errors occurring after the verdict are structural errors,
see Washington v. Recuenco,
. Despite the ambiguity, Crockett assumes that the court found a constitutional error but does not argue in the alternative that the Illinois Appellate Court should have found a constitutional error but did not.
Compare United States v. Widgery,