Terrell Dashaun Wesley v. Tyrone Baker

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 10, 2024
Decided August 7, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 22-1420
TERRELL DASHAUN WESLEY,
Petitioner-Appellant,
v.
TYRONE BAKER,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:20-cv-03189
Thomas M. Durkin,
Judge.
O R D E R
Terrell Wesley appeals the denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He asserts that, at his bench trial for murder, the Illinois trial
judge rendered a guilty verdict before he gave a closing argument, then immediately
pronounced him guilty again after allowing his counsel to deliver one. In Wesley’s
view, this procedure violated his Sixth Amendment right to present a closing argument,
as explained in Herring v. New York, 422 U.S. 853 (1975). But relief under § 2254 is
available only if the state courts erred beyond any possibility for reasonable debate.
And Wesley has not met that high bar because the state appellate court, in rejecting the
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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claim, reasonably distinguished Herring under an interpretation of the holding that is at
least fairly debatable.
I. Background
In 2008, Wesley was indicted in Illinois for the murder of Everett Brown. Wesley
waived his right to a jury trial, and the case went to a bench trial.
The State offered the testimony of several witnesses. One testified that he found
Brown shot dead outside a convenience store. Two others said they heard gunshots and
saw a man matching Wesley’s general description and holding a gun flee the store in a
car. Another witness identified Wesley as the shooter (after being uncertain in an earlier
lineup) and Shara Cannon as the getaway driver. At trial, Cannon said she was not with
Wesley on the day of the shooting, but the State introduced her grand jury testimony
that she dropped him off at the store and later heard him say he shot someone.
Similarly, the State introduced the grand jury testimony of Pierre Robinson, a friend of
Wesley’s, stating that he heard Wesley admit to shooting Brown; at trial, however,
Robinson testified that Wesley said no such thing.
After the State rested its case in chief, Wesley moved for a directed verdict. The
judge denied the motion and explained her rationale. Wesley did not testify or call any
witnesses, and the court recessed for the day.
The next day, the trial judge began the proceedings by making several factual
findings:
In making my ruling, looking at the evidence, you have a man pointing his
gun outside of the store. He is running backwards. He has been identified
by one witness. He had the gun in his hand, and he was trying to put it back
under his shirt. He was wearing a white T-shirt. These facts have been
corroborated. You have him getting into a vehicle, where there is some issue
as to whether he got into the passenger's side or the driver's side. The Court
would find in many cases there are discrepancies. However, he got—he did
get into a car that was identified.
With regard to the physical evidence, there were holes through the door.
There were—there was a bullet and fragments found in the body of the
victim. There were two shell casings found by the door.

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No. 22-1420 Page 3
In addition, with regard to the grand jury testimony, the Court would
accept the impeached parts as the—the impeaching testimony as
substantive evidence and it further ties up this case with regard to the
testimony of Shara [Cannon] and also Robinson.
For all these reasons, the Court would make a finding of guilty in this case.
As soon as the judge stopped speaking, Wesley’s lawyer interjected that the
parties had not yet presented closing argument. The judge apologized, then invited the
parties to give their closing arguments. After the parties did so, the judge pronounced
Wesley guilty, stating that she had considered the closing arguments.
Wesley moved for a new trial, arguing, among other things, that the judge erred
by prematurely announcing the verdict. The judge denied the motion, explaining that
although she had improperly indicated her ruling, she then “reconsidered everything
that was brought to [her] attention in those closing arguments.” The trial judge later
sentenced Wesley to 50 years’ imprisonment.
The state appellate court affirmed. People v. Wesley, No. 1–13–0710, 2015 WL
3855601, at *5 (Ill. App. Ct. June 22, 2015). The court recognized that denying a chance to
present closing arguments is reversible error, regardless of any prejudice. Id. at *4. But,
the court went on, the trial judge allowed Wesley’s lawyer to make a closing argument
and “reconsidered everything” in light of that argument before announcing her final
verdict. Id. at *4–5. The Supreme Court of Illinois denied review. People v. Wesley,
39 N.E.3d 1010 (Table) (Ill. 2015).
Wesley then filed a petition for a writ of habeas corpus under § 2254, asserting
that the state trial judge violated Wesley’s right under the Sixth Amendment and
Herring to present closing argument by finding him guilty before hearing his
summation.
The district judge denied the petition on three grounds. First, Wesley’s claim
impermissibly depended on extending Herring because that decision prohibits only a
total denial of closing argument, whereas Wesley made one. Second, habeas relief
requires an error beyond debate, and courts (both state and federal) reasonably disagree
about whether allowing closing argument only after the verdict is reversible error
under Herring. Third, a premature verdict poses no Herring problem if the factfinder
remained willing to be persuaded by closing argument, and the trial judge here was so
willing. The court denied a certificate of appealability, but we granted one.

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II. Analysis
On appeal, Wesley argues that the state trial judge violated his right to present
closing argument and that the state appellate court’s decision to the contrary was based
on unreasonable application of Herring. We review de novo the district court’s denial of
relief under § 2254. Bell v. Hepp, 70 F.4th 385, 389 (7th Cir. 2023).
To obtain relief, Wesley must show that the state appellate court’s decision
rejecting his Herring claim was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). And to do that, he must show not that the state appellate
court’s decision was merely incorrect but “was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fair[-]minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In other
words, the state appellate court must have strayed “well outside the channels of
reasonable decision-making about federal constitutional claims.” Schmidt v. Foster,
911 F.3d 469, 477 (7th Cir. 2018) (en banc).
Here, the federal constitutional claim is governed by Herring, in which the
Supreme Court invalidated a state statute authorizing judges to prohibit closing
arguments at bench trials because the statute violated the Sixth Amendment. Herring,
422 U.S. at 853, 865. A “total denial” of closing argument, the Court explained, violates
the right to make a defense. Id. at 859. The Court also identified such a denial of closing
argument as a structural error allowing a remedy without a showing of prejudice.
See United States v. Cronic, 466 U.S. 648, 659 n.25 (1984).
The parties first debate whether, at Wesley’s trial, the judge indeed pronounced a
verdict—rather than articulating findings or repeating the rationale for denying a
directed verdict—before the closing arguments. We need not decide this question,
however, because even if we assume that a verdict preceded the arguments, Wesley is
not entitled to relief under § 2254.
For starters, in deciding that the judge’s process at the end of the bench trial did
not violate Wesley’s constitutional rights, the state appellate court reasonably
distinguished Herring. The defendant in Herring had no opportunity to present a closing
argument, and the Court held that the Sixth Amendment prohibits “a statute that
empowers a trial judge to deny absolutely the opportunity for any closing summation
at all.” 422 U.S. at 863; see also Glebe v. Frost, 574 U.S. 21, 23–24 (2014) (“Herring held that
complete denial of summation violates the Assistance of Counsel Clause.”) Here, by

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contrast, the trial judge allowed Wesley to present a closing argument and stated before
pronouncing her final verdict that she had considered her findings anew in light of the
parties’ arguments. Distinguishing Wesley’s situation from the one in Herring based on
what the respective defendants experienced was reasonable.
Moreover, other courts share the state appellate court’s narrow interpretation of
Herring, suggesting that it was at least reasonable. Courts can and do reasonably
disagree about whether a reversible Herring error occurs only when a trial judge denies
closing argument altogether or also when the judge at a bench trial permits closing
arguments only after announcing a verdict. Some courts, as Wesley points out, apply a
bright-line rule in which announcing the verdict before closing argument is reversible
error, even if the trial judge later permits and considers argument. See, e.g., Nickels v.
State, 81 N.E.3d 1092, 1095–96 (Ind. Ct. App. 2017); Spence v. State, 463 A.2d 808, 810–12
(Md. 1983). But other courts, like the state appellate court here, apply a rule only
establishing the right to have a meaningful chance to argue, and so they find no
reversible error in a pre-argument verdict, as long as the trial court remained open to
and considered the defense’s argument. See, e.g., State v. McIntosh, 540 S.W.3d 418, 425–
26 (Mo. Ct. App. 2018); accord United States v. Price, 795 F.2d 61, 64 (10th Cir. 1986). That
courts disagree about the proper interpretation of Herring suggests that the decision
here was within the bounds of reason. See Carey v. Musladin, 549 U.S. 70, 76–77 (2006)
(canvassing divergent interpretations of Supreme Court cases and concluding that state
court did not unreasonably apply those cases); Winston v. Boatwright, 649 F.3d 618, 633–
34 (7th Cir. 2011) (recognizing that “division of authority in the lower courts” on
disputed issue supports finding state-court decision reasonable). Therefore, even if the
state appellate court erred, Wesley cannot demonstrate that he is entitled to relief under
§ 2254(d)(2).
AFFIRMED

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