D Eshawn Harold Jewell v. Gary Boughton

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3082
D E SHAWN HAROLD J EWELL ,
Petitioner-Appellant,
v.
G ARY BOUGHTON,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 19-cv-00658 — Pamela Pepper, Chief Judge.
____________________
A RGUED NOVEMBER 6, 2023 — D ECIDED J ANUARY 22, 2024
____________________
Before FLAUM, SCUDDER , and KIRSCH , Circuit Judges.
FLAUM, Circuit Judge. During jury deliberations in
DeShawn Harold Jewell’s criminal trial, the trial court an-
swered a jury question ex parte. Jewell challenged the ex parte
communication on direct appeal, but the Wisconsin Court of
Appeals concluded that any error was harmless. Jewell now
seeks habeas relief under the Antiterrorism and Effective
Death Penalty Act arguing that the state appellate court un-
reasonably applied Supreme Court precedent in its

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2 No. 22-3082
harmlessness analysis. Because the Wisconsin Court of Ap-
peals did not unreasonably apply Chapman v. California, 386
U.S. 18 (1967), and the communication did not have a substan-
tial and injurious effect on the jury’s verdict, we affirm.
I. Background
In 2015, a Wisconsin jury convicted DeShawn Harold Jew-
ell of robbery by use of force and bail jumping. The robbery
conviction stemmed from a March 2015 robbery of a woman,
C.F., outside of a Milwaukee tavern.
At trial, C.F. testified that as she was walking from the tav-
ern to her car, a vehicle pulled up next to her. A stranger got
out and demanded that she hand over her purse or he would
shoot. C.F. resisted, knocking off the stranger’s black and red
winter hat. The stranger took C.F.’s purse and drove off, leav-
ing his hat behind. Testing revealed that Jewell was a “major
contributor” to DNA found on the hat, although there were
two other, unidentified, minor contributors.
A month after the robbery, and after receiving the DNA
results, Milwaukee Police prepared a photo lineup. That in-
volved creating a “six pack”—a one-page internal document
with Jewell’s photo and photos of five other supposedly phys-
ically similar individuals. On the six pack, Jewell’s photo ap-
peared second.
The police also created a photo array. The array consisted
of eight folders—one containing Jewell’s photo, five contain-
ing photos of the other individuals on the six pack, and two
empty folders. Officers testified that they shuffled the folders
and C.F. identified her assailant in the third folder, which con-
tained Jewell’s photograph. C.F. later testified that she was

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No. 22-3082 3
confident her assailant’s photo was in the array because, be-
fore showing her the folders, an officer told her that “he was
going to get him.” At trial, the prosecution entered the six
pack, not the array, into evidence.
C.F. also identified Jewell as her assailant in court, but
throughout the trial, Jewell repeatedly challenged her identi-
fication. Specifically, he argued that the photo array proce-
dure did not adhere to best practices, that two of the individ-
uals in the array did not look like him, and that police improp-
erly encouraged C.F. to make an identification. However,
Jewell did not challenge the numbering of the photo array and
six pack.
After deliberating for two hours, the jury sent a note to the
trial court asking to “see the six-pack photo.” The court sent
the six pack to the jury room, triggering a second note asking,
“Is the ‘6 pack’ numbering system the same as the order as the
photo/folder in the photo array?” The trial court responded,
“No,” without consulting the parties. Shortly thereafter, the
jury returned a verdict.
Before reading the verdict, the trial court told the parties
about the jury’s questions and his response. The trial court ex-
plained that its answer to the jury was “[b]ased upon the tes-
timony that [the court] received on how the six pack was put
together and based upon [its] 40 years of doing this.” Jewell
disagreed with the trial court’s approach. His counsel ex-
plained that his “preference would have been to have the jury
[rely on] their collective memory of the testimony,” but
acknowledged that “the six-pack and the photo array [num-
bering] are never the same.” The trial court was not moved,
stating, “[I]f you had raised that, I would have overruled [it].”
After reading the jury’s guilty verdict, the trial court

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4 No. 22-3082
sentenced Jewell to eight years’ imprisonment and five years’
supervised release.
Jewell later moved for postconviction relief arguing,
among other things, that the court deprived him of his Sixth
Amendment rights by answering the jury’s question ex parte.
The trial court denied the motion, stating that it provided a
correct answer and Jewell’s presence would not have changed
it. The Wisconsin Court of Appeals affirmed Jewell’s convic-
tion and the denial of postconviction relief. While it held that
the trial court committed a constitutional error by communi-
cating ex parte with the jury, it concluded that this error was
harmless.
Jewell subsequently filed a pro se habeas petition arguing
that the trial court violated his Sixth Amendment rights by
communicating ex parte with the jury. The district court de-
nied habeas relief but granted a certificate of appealability.
This appeal followed.
II. Discussion
“We review a district court’s ruling on a petition for ha-
beas relief de novo.” Thurston v. Vanihel, 39 F.4th 921, 928 (7th
Cir. 2022). “[A]lthough we technically hear this appeal from
the district court, we focus on the decision of the last state
court to rule on the merits of petitioner’s claim.” Campbell v.
Smith, 770 F.3d 540, 546 (7th Cir. 2014) (alteration in original)
(citation and internal quotation marks omitted). Here, that is
the Wisconsin Court of Appeals’ ruling that the trial court’s
ex parte jury communication was a harmless error.
“When a habeas petition challenges a state court convic-
tion, ‘[o]ur review is governed and (greatly limited) by the

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No. 22-3082 5
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”).’” Thurston, 39 F.4th at 928 (alteration in original)
(quoting Hicks v. Hepp, 871 F.3d 513, 524 (7th Cir. 2017)). “Un-
der AEDPA, habeas relief is only warranted if the state court’s
decision ‘was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by
the Supreme Court of the United States.’” Scott v. Hepp, 62
F.4th 343, 346 (7th Cir. 2023) (quoting 28 U.S.C. § 2254(d)(1)).
While we will not “merely rubber-stamp approval of state-
court decisions,” Rhodes v. Dittman, 903 F.3d 646, 655 (7th Cir.
2018), “[AEDPA] is a deferential and ‘difficult to meet’ stand-
ard,” Jones v. Cromwell, 75 F.4th 722, 726 (7th Cir. 2023) (quot-
ing Harrington v. Richter, 562 U.S. 86, 102 (2011)).
Petitioners must also clear a second hurdle for relief. “[A]
petitioner who prevails under AEDPA must still … persuade
a federal habeas court that ‘law and justice require’ relief.”
Brown v. Davenport, 596 U.S. 118, 134 (2022) (quoting 28 U.S.C.
§ 2243); see also Jones, 75 F.4th at 726. To do so, a petitioner
challenging a state court’s harmless error ruling must prove
that the trial court’s error “had a substantial and injurious ef-
fect or influence” on the jury’s verdict. Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (citation and internal quotation marks
omitted); see also Brown, 596 U.S. at 134 (explaining “federal
habeas courts [must still] … apply this Court’s precedents
governing the appropriate exercise of equitable discretion—
including Brecht”); Brown v. Eplett, 48 F.4th 543, 557 (7th Cir.
2022).
Accordingly, “a federal court must deny relief to a state ha-
beas petitioner who fails to satisfy either [the Supreme]
Court’s equitable precedents or AEDPA. But to grant relief, a
court must find that the petitioner has cleared both tests.”

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6 No. 22-3082
Brown, 596 U.S. at 134. Jewell has not satisfied either require-
ment.
A. AEDPA
Starting with AEDPA’s statutory requirements, Jewell ar-
gues that the Wisconsin Court of Appeals unreasonably ap-
plied Chapman when it held that the trial court’s error—com-
municating ex parte with the jury—was harmless.1
“A state-court decision unreasonably applies federal law
if it ‘applies [the Supreme] Court’s precedents to the facts in
an objectively unreasonable manner.’” Pruitt v. Neal, 788 F.3d
248, 263 (7th Cir. 2015) (alteration in original) (quoting Brown
v. Payton, 544 U.S. 133, 141 (2005)). This bar is high. Objec-
tively unreasonable does not mean “merely wrong” or a
“clear error.” Scott, 62 F.4th at 346 (quoting Pruitt, 788 F.3d at
263). “Instead, the ruling must contain ‘an error well under-
stood and comprehended in existing law beyond any possi-
bility for fairminded disagreement.’” Id. at 346–47.
Under Chapman, a constitutional error can be held harm-
less if the reviewing court can “declare a belief that it was
harmless beyond a reasonable doubt.” 386 U.S. at 24. The Wis-
consin Court of Appeals provided two rationales for its con-
clusion that the trial court’s error was harmless: (1) there was
sufficient evidence for Jewell’s robbery conviction, and (2) the
trial court’s answer was based on unchallenged trial
1 It is undisputed that the trial court erred when communicating ex
parte with the jury. Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004) (ex-
plaining that the Confrontation Clause and Due Process Clause secure a
defendant’s right to be present during communications between the judge
and the jury); see also Ellsworth v. Levenhagen, 248 F.3d 634, 640 (7th Cir.
2001).

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No. 22-3082 7
testimony (i.e., factually correct). According to Jewell, both ra-
tionales unreasonably applied Chapman.
Jewell is correct about the appellate court’s first rationale.
It unreasonably applied Chapman when it substituted a suffi-
ciency-of-the-evidence analysis for harmless-error review.
“Time and again, the Supreme Court has emphasized that a
harmless-error inquiry is not the same as a review for whether
there was sufficient evidence at trial to support a verdict.” Jen-
sen v. Clements, 800 F.3d 892, 902 (7th Cir. 2015). The question
is not whether the legally admitted evidence was sufficient,
but rather whether the State proved “beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.” Chapman, 386 U.S. at 24; see also Jensen, 800
F.3d at 902.
Still, this unreasonable application of federal law does not
necessarily warrant habeas relief. “[A] federal court may not
award habeas relief under § 2254 unless the harmlessness deter-
mination itself was unreasonable,” Davis v. Ayala, 576 U.S. 257,
269 (2015) (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)). Since
the Wisconsin appellate court offered two rationales to sup-
port its harmlessness decision, Jewell must show that both
were unreasonable applications of Chapman to prevail.
The appellate court’s second basis for rejecting Jewell’s ha-
beas petition was that “the trial court’s answer was factually
correct” because it relied on “undisputed trial testimony.” At
trial, “[d]efense counsel conceded that the [photo array and
six pack] numbering systems [were] different.” Jewell argues
that the appellate court unreasonably applied Chapman when
it failed to consider whether the trial judge invaded the jury’s
province as sole factfinder by crediting the (unchallenged)
testimony of the prosecution’s witnesses. Ultimately,

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8 No. 22-3082
fairminded jurists could disagree, precluding relief. See Har-
rington, 562 U.S. at 101 (“A state court’s determination that a
claim lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of the
state court’s decision.” (internal citation and quotation marks
omitted)).
Few courts have considered whether ex parte communica-
tions like those at issue here are harmless. Those that have
reached varying outcomes, reflecting room for fairminded
disagreement. Importantly, all were on direct appeal.
For example, in United States v. Gomez, the Tenth Circuit
held that a factually accurate answer based on precise trial
testimony was harmless beyond a reasonable doubt. 67 F.3d
1515, 1529–30 (10th Cir. 1995). There, during deliberations for
drug distribution charges, the jury asked, “Cocaine brick—
was it in a brown paper bag @ time of drug deal[?]” Id. at 1527.
The district court ex parte replied, “It was not in the same
brown paper bag at the time of the transaction.” Id.
Like here, the defendant in Gomez did “not claim that the
court’s answer was factually inaccurate[;] he simply claim[ed]
that he should have had input into the answer.” Id. at 1529.
But as our sister circuit noted, since the district court’s answer
was directly supported by trial testimony, with no need “to
draw inferences from [the] testimony in order to answer” the
question, the court’s ex parte communication was harmless be-
yond a reasonable doubt. Id. at 1529–30.
The First Circuit, by contrast, disagreed that a trial court’s
answer to a substantive question constituted a harmless error.
In United States v. Argentine, a jury in a wire fraud trial asked
for the dates that the defendant talked with two witnesses.

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No. 22-3082 9
814 F.2d 783, 785 (1st Cir. 1987). The trial court replied,
“We’ve checked the record” and provided dates of two con-
versations but told the jurors the record was unclear as to an-
other date. Id. at 786. In holding this answer was not harmless,
the First Circuit explained that even if the matter was undis-
puted—that is, not “directly contradicted by conflicting evi-
dence”—the trial court invaded the factfinders’ province as to
a “fundamental question[] of fact.” Id. at 788–89.
This Circuit has grappled with similar harmlessness deter-
minations. In United States v. Neff, a jury asked the trial court
to “clarify some events” including two timing questions. 10
F.3d 1321, 1323 (7th Cir. 1993). The trial court responded with
specific dates and times. Id. To provide those answers, the
judge “introduced additional facts that [were] not found in
the evidence presented at trial.” Id. at 1325. On direct appeal,
we readily concluded that error was not harmless. Id.
Another issue in Neff was a “closer call.” Id. The jury also
asked the trial court whether the defendant was released after
questioning by police. Id. at 1323. The trial court responded,
“No.” Id. To answer that question, the trial court had to make
“infer[ences] from certain [trial] testimony.” Id. at 1325. While
not as obviously problematic as relying on facts not in evi-
dence, the inference “was [one] to be drawn by the jury as fact
finder—not by the judge.” Id.
If this case was on direct appeal, it could similarly present
a close call. Like Gomez, the trial court gave a factually correct
answer to an unchallenged issue. At trial, officers testified that
they prepared an internal six-pack, where Jewell appeared
second, and shuffled the photo array folders before C.F. iden-
tified Jewell in the third folder. Jewell did not argue, or even
hint, that the numbering of the array and six pack was the

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10 No. 22-3082
same. Moreover, Jewell’s counsel conceded to the trial court
that the answer was correct. That said, the trial testimony here
is not as precise as it was in Gomez so a court could conclude,
as we did in Neff, that the trial court made a reasonable infer-
ence that should have nevertheless been left to the jury.
But we are not on direct appeal. A close call on which there
is room for fairminded disagreement will not suffice. It is not
objectively unreasonable for a fairminded jurist to conclude
that the trial court’s correct answer to an unchallenged point
is harmless under Chapman. Fairminded jurists may also come
out the other way. The Wisconsin Court of Appeals may have
arguably been wrong or committed error, but it did not com-
mit an error “beyond any possibility for fairminded disagree-
ment.” Scott, 62 F.4th at 346–47 (citation and internal quota-
tion marks omitted). Accordingly, habeas relief is not war-
ranted.
B. Equitable Precedents
Even assuming that the Wisconsin Court of Appeals un-
reasonably applied Chapman, a second barrier remains. Jewell
must persuade us that “law and justice require” relief by
proving that the error had a “substantial and injurious effect
or influence on the jury’s verdict” under Brecht. Brown, 596
U.S. at 133–34; see also Brown, 48 F.4th at 557. He cannot.
Brecht “requires that we make a probabilistic assessment
in determining whether the instructional error had a substan-
tial and injurious effect or influence in determining the jury’s
verdict.” Brown, 48 F.4th at 561. To do so “we must ask our-
selves ‘whether a properly instructed jury would have arrived
at the same verdict, absent the error.’” Id. (quoting Armfield v.
Nicklaus, 985 F.3d 536, 543–44 (7th Cir. 2021)). This assessment

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No. 22-3082 11
includes a consideration of “the overall strength of the State’s
case against the totality of the evidence.” Id. Under this stand-
ard, a court may only grant habeas relief if it “harbor[s] ‘grave
doubt’ … about whether the trial error affected the verdict’s
outcome.” Brown, 596 U.S. at 135–36 (quoting O’Neal v.
McAninch, 513 U.S. 432, 435 (1995)); see also O’Neal, 513 U.S. at
435 (“By ‘grave doubt’ we mean that, in the judge’s mind, the
matter is so evenly balanced that he feels himself in virtual
equipoise as to the harmlessness of the error.”).
Jewell argues that the error impacted the verdict because
the ex parte communication bore on a key issue in a weak case,
evidenced by the guilty verdict shortly after the communica-
tion. As Jewell sees it, C.F.’s photo array identification was
emphasized throughout the trial, and the jury’s question sug-
gests a focus on the array during deliberations as well. The
trial court’s ex parte answer, crediting the officer’s testimony,
could have resolved any doubt in the state’s favor, triggering
the jury to reach a verdict “shortly after” the answer.
Ultimately, Jewell’s arguments ignore the strength of the
remaining evidence and rest on too many “mights,” “may
haves,” and “coulds” to sow grave doubt. The trial court’s an-
swer may have improperly credited the officer’s testimony,
but Jewell never disputed the numbering. For Jewell’s theory
to be accepted, the jury would have had to find the officers so
unbelievable that they rejected even unchallenged portions of
the officers’ testimony. Moreover, the DNA evidence, identi-
fying Jewell as the “major contributor” on the hat, provided
strong independent evidence supporting the jury’s verdict.
While a verdict came “shortly” after the trial court answered,
the record does not reveal whether “shortly” means two
minutes or two hours, lessening any inference that the trial

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12 No. 22-3082
court’s ex parte answer was determinative. Accordingly, even
if the jury disbelieved the officers, the matter is not so evenly
balanced as to be in “virtual equipoise as to the harmlessness
of the error.” O’Neal, 513 U.S. at 435.
III. Conclusion
For the reasons explained, we AFFIRM the district court’s
denial of habeas relief.

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