Wysingo Turner v. CHRISTINE BRANNON -DORTCH , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3419
WYSINGO TURNER ,
Petitioner-Appellant,
v.
C HRISTINE BRANNON -DORTCH , Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19-cv-0693 — Mary M. Rowland, Judge.
____________________
A RGUED M ARCH 31, 2021 — DECIDED J ANUARY 3, 2022
____________________
Before SYKES , Chief Judge, and F LAUM and E ASTERBROOK,
Circuit Judges.
S YKES , Chief Judge. Wysingo Turner is serving a lengthy
prison term for fatally shooting Krystal Rodney during a
heated argument outside her home in Chicago. At his trial in
state court, Turner claimed that the shooting was accidental.
He testified that Krystal grabbed the handgun he was
carrying and that it discharged in the ensuing scuffle.
Seeking to cast doubt on Turner’s story, the prosecutor

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2 No. 20-3419
cross-examined him about why he was carrying a loaded
gun that day. Turner admitted that he frequently kept a
loaded firearm in his car for protection. The prosecutor
pressed him further, asking whether he knew it was illegal
to have a loaded gun in his car in Chicago and whether he
thought he was “entitled to just break the law.” He replied
that keeping a loaded gun in his car wasn’t illegal—or if it
was, he was unaware of that law.
The jury rejected Turner’s “accidental discharge” defense
and found him guilty of first-degree murder. Turner
appealed, arguing that the prosecutor’s cross-examination
about the legality of his gun possession violated his Second
Amendment right to bear arms. The appellate court
disagreed and affirmed the judgment. After exhausting state
postconviction remedies, Turner sought federal habeas relief
under 28 U.S.C. § 2254, reprising his Second Amendment
argument. It fared no better in federal court. The district
judge denied the petition but granted a certificate of
appealability.
We affirm. The state court addressed Turner’s claim on
the merits, so federal habeas relief is unavailable unless the
state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established [f]ederal
law.” 28 U.S.C. § 2254(d)(1). We see no error in the state
court’s ruling, let alone one that meets § 2254(d)’s
demanding standard.
I. Background
The events culminating in Krystal Rodney’s death began
on August 10, 2010, two days before the fatal shooting. At
the time, Krystal lived with her 12-year-old son Demar’J

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No. 20-3419 3
Bankston in the basement of a home on South Justine Street
in Chicago. Silvia Gandy, Krystal’s half-sister and a friend of
Turner’s, lived upstairs with her three-year-old son Ya’Shon
and her grandmother Queen Spencer. Walter Gandy, Queen’s
son, also lived there.
On August 10 Silvia called Turner and asked him to take
Ya’Shon to get the vaccinations he needed for school. Turner
agreed and drove to the Justine Street home. Silvia, Ya’Shon,
and Krystal got into his car. An intense argument broke out
during the drive, and Turner pulled over at a local police
station to enlist help in removing them from the car.
On the morning of August 12 Turner again visited the
Justine Street residence. He and Krystal talked outside the
home and tempers again flared. Turner left but returned a
few hours later. What happened next was hotly disputed at
trial.
Twelve-year-old Demar’J was the only eyewitness to the
shooting. He testified that Turner returned that afternoon,
got out of his car, and approached the house carrying a beer
bottle and asked to see Sylvia. Demar’J replied that she
wasn’t home. Turner then asked to see Krystal, who came
outside. She and Turner argued again, and Demar’J saw
Turner pull a silver handgun from the back of his pants and
shoot Krystal in the neck. Turner returned to his car and fled
the scene.
Queen Spencer was home that afternoon but did not see
the shooting. She testified that Turner was a frequent visitor
to the home and was there on the afternoon of August 12.
From inside the house, she heard him talking with Krystal
outside and then heard a gunshot. She immediately went to

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4 No. 20-3419
the front porch and saw Turner walking to his car with a gun
in his hand. She testified that he got into his car, lowered his
head to the steering wheel and said, “Oh my god,” and then
drove away. Walter Gandy testified that he was at home on
the morning of August 12 and heard Krystal arguing with
Turner, but he was not there at the time of the shooting.
Turner recounted a starkly different version of these
events. He told the jury that he kept a loaded handgun in his
car for protection, and when he returned to the Gandy home
on the afternoon of August 12, he put the gun in his left
pocket because “thugs” often loitered in the area. He
testified that as he walked down the gangway toward the
home, Krystal approached him, snatched the gun from his
pocket, and aimed it at him. Turner said that he feared for
his life and tussled with Krystal for control of the firearm,
which accidentally discharged during the struggle. He
denied pulling the trigger.
The prosecutor confronted Turner about his gun
possession on cross-examination.
Q: What kind of gun is that that you carry
in your car?
A: It’s a Magnum 45.
Q: Was it loaded?
A: Yes, it was.
. . . .
Q: And when did you load that gun?
A: Maybe about 8 years ago.
Q: 8 years ago. You haven’t fired it for
8 years?
A: Never had no need to.
. . . .

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No. 20-3419 5
Q: And you say you carried it in your car
for protection?
A: Yes, I do.
Q: And it’s against the law to carry your
gun in the car, isn’t it?
[Objection overruled.]
A: No, it’s not.
Q: And it’s against the law to carry a load-
ed gun on the streets of the City of
Chicago when you’re driving your car,
correct?
A: No.
Q: And you think that you are entitled to
just break that law, correct?
A: I never known it was a law.
The lawfulness of Turner’s gun possession arose again in
closing argument. After noting that Turner’s “accidental
discharge” theory turned on his credibility, the prosecutor
commented on his testimony about keeping a loaded gun in
his car:
Let’s just talk about a couple of things. “I
drove with a loaded gun in my car. I always
drive with a loaded gun in my car.” Apparent-
ly he doesn’t care about the law[] because he
can pick and choose the law that he does or
does not want to follow[] because he’s
Wysingo Turner. … [T]hat’s the type of guy he
is.
The jury rejected Turner’s defense and found him guilty
of first-degree murder, and the judge imposed a sentence of

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6 No. 20-3419
60 years in prison. The Illinois Appellate Court affirmed the
judgment. People v. Turner, 2015 IL App. (1st) 133649-U
(Ill. App. Ct. 2015) (unpublished). Among other arguments
on direct appeal, Turner claimed that the prosecutor violated
his Second Amendment right to bear arms by questioning
him about the legality of keeping a loaded gun in his car and
commenting on this testimony during closing argument. Id.
at ¶ 48.
Turner’s argument relied heavily on Dawson v. Delaware,
503 U.S. 159 (1992). There the Supreme Court held that
introducing irrelevant evidence of the defendant’s member-
ship in a white-supremacist group during the penalty phase
of his capital trial served no legitimate purpose and thus
violated the defendant’s associational rights under the First
Amendment. Id. at 167–68.
Turner’s analogy to Dawson did not succeed. The state
appellate court rejected his Second Amendment argument,
reasoning that Turner’s case was different because he him-
self had introduced the evidence that he carried a loaded
gun in his car, so the prosecutor’s questions and comments
were relevant and did not infringe his Second Amendment
right to bear arms. Turner, 2015 IL App. (1st) at ¶ 52. The
Illinois Supreme Court declined review.
After unsuccessful state postconviction proceedings,
Turner sought federal habeas relief under § 2254, raising the
same Second Amendment claim. Applying the deferential
review required by § 2254(d), the district judge concluded
that the state court reasonably determined that Turner’s case
was distinguishable from Dawson. The judge therefore
denied relief but granted a certificate of appealability.

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No. 20-3419 7
II. Discussion
Turner faces a high hurdle. Because the state court
addressed his claim on the merits, a federal court may not
grant habeas relief unless the state court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court.” § 2254(d)(1). “This standard is difficult to
meet.” Mays v. Hines, 141 S. Ct. 1145, 1149 (2021) (per
curiam) (quotation marks omitted).
Turner concedes that the state appellate court applied the
correct federal law, so his argument is really quite limited:
he contends that the state court unreasonably applied
Dawson in rejecting his claim that the prosecutor’s questions
and comments about the legality of his gun possession
violated his Second Amendment right to bear arms as
announced in District of Columbia v. Heller, 554 U.S. 570
(2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010).
To prevail on this claim, Turner must establish that “the
state court’s ruling … was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
He falls far short of satisfying his burden.
We begin with the observation that Turner’s claim
doesn’t rest directly on Heller and McDonald. The Court’s
Second Amendment decisions are simply in the background.
The claim turns entirely on Dawson. As we’ve noted, there
the Court held that it was constitutional error to admit
irrelevant evidence of a capital-murder defendant’s
membership in a white-supremacist group during the
penalty phase of his trial. Dawson, 503 U.S. at 167–68. To

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8 No. 20-3419
understanding this holding—or more importantly, the limits
of this holding—some additional unpacking is necessary.
David Dawson and three other inmates escaped from a
Delaware prison and went on a crime spree that included
burglary, theft, and murder. Id. at 161. A jury convicted
Dawson of murder during the guilt phase of his trial. Before
the penalty phase began, in which the jury would consider
whether to recommend a death sentence, the prosecution
announced its intention to introduce evidence of Dawson’s
membership in the Aryan Brotherhood, a white supremacist
group with affiliated gangs in many prisons. Among other
evidence, the prosecution sought to introduce photographs
of Dawson’s racist tattoos—swastikas and Aryan Brother-
hood symbols and names—as well as expert testimony
about the origins and nature of the Aryan Brotherhood. Id. at
161–62.
When the defense objected, the prosecution agreed to
drop its expert witness and instead read a stipulation to the
jury explaining that the Aryan Brotherhood is a white
supremacist gang that exists in many prisons. Id. at 162. The
defense maintained its objection to the other Aryan Brother-
hood evidence, but the trial judge permitted the prosecution
to introduce photos of some of the tattoos in addition to the
stipulation. Id. The jury recommended a sentence of death.
The court was bound by that recommendation and imposed
a death sentence. Id. at 163.
Dawson challenged the admission of the Aryan
Brotherhood evidence on appeal to the Delaware Supreme
Court, but the court affirmed his conviction and sentence.
The Supreme Court granted certiorari and reversed, ruling
that admitting this evidence was constitutional error. Id. The

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No. 20-3419 9
Court did not, however, accept Dawson’s broadest
argument: he maintained that admitting evidence of
constitutionally protected associations, activities, or beliefs is
always unconstitutional. Id. at 164–65. The Court rejected this
broad claim, explaining that “the Constitution does not erect
a per se barrier to the admission of evidence concerning one’s
beliefs and associations at sentencing simply because those
beliefs and associations are protected by the First
Amendment.” Id. at 165.
Rather, the holding in Dawson is more limited: the Aryan
Brotherhood evidence served no legitimate purpose because
it was irrelevant to any issue in the penalty phase of trial.
The Court observed that “the narrowness of the stipulation
left the Aryan Brotherhood evidence totally without rele-
vance to Dawson’s sentencing proceeding” and “proved
nothing more than Dawson’s abstract beliefs.” Id. at 165, 167.
Indeed, the Court surmised that the evidence was “em-
ployed simply because the jury would find these beliefs”—
and Dawson’s association with others who held similar
racist beliefs—to be “morally reprehensible.” Id. at 167. The
Court thus concluded that the First Amendment barred the
state from introducing evidence of Dawson’s associations
and abstract beliefs during his sentencing proceeding when
those associations and beliefs had “no bearing on the issue
being tried.” Id. at 168.
The irrelevance of the Aryan Brotherhood evidence is a
key limit on Dawson’s reach. The decision does not extend to
the admission of relevant evidence, even if the evidence
concerns constitutionally protected conduct. Wisconsin v.
Mitchell, 508 U.S. 476, 486 (1993); United States v. Schmidt, 930
F.3d 858, 865 (7th Cir. 2019). So if the evidence of Turner’s

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10 No. 20-3419
firearm possession was relevant, then his Dawson claim
necessarily fails. And that’s true even if we assume for the
sake of argument that his firearm possession was constitu-
tionally protected.
The state appellate court rejected Turner’s claim on
precisely this ground: “[E]vidence that [Turner] carried a
gun, which was introduced by the defendant himself, was
relevant as to why [he] had a loaded gun with him on the
day in question.” Turner, 2015 IL App. (1st) at ¶ 52. We see
no error in this ruling, let alone an error “beyond any
possibility for fairminded disagreement.” Richter, 562 U.S. at
103.
Turner counters that even though his firearm possession
was relevant, its legality was not. That may be so; the
prosecutor’s emphasis on Turner’s character strikes us as an
invitation to draw an improper character-propensity
inference. E.g., People v. Ward, 952 N.E.2d 601, 606 (Ill. 2011).
But that’s an error of state evidence law, not a federal
constitutional violation. The problematic irrelevant evidence
in Dawson concerned the defendant’s constitutionally
protected conduct—his association with a racist
organization—not the legality of that conduct. Here, the
prosecutor’s apparent attempt to draw an impermissible
character-propensity link is simply irrelevant to Turner’s bid
for federal habeas relief. See § 2254(a) (limiting federal
habeas relief to violations of federal law).
Accordingly, we agree with the district judge that the
state court reasonably applied Dawson. The § 2254 petition
was properly denied.
A FFIRMED.

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