### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 22-3082
D E S HAWN H AROLD J EWELL , Petitioner-Appellant,

v.

G ARY B OUGHTON , 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 N OVEMBER 6, 2023

— D ECIDED J ANUARY 22, 2024

____________________

Before F LAUM, S CUDDER , and K IRSCH, Circuit Judges

. F LAUM, Circuit Judge . During jury deliberations inDeShawn Harold Jewell’s criminal trial, the trial court answered 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 E ff ectiveDeath Penalty Act arguing that the state appellate court unreasonably applied Supreme Court precedent in its2 No. 22-3082

harmlessness analysis. Because the Wisconsin Court of Appeals did not unreasonably apply Chapman v. California , 386 U.S. 18 (1967), and the communication did not have a substantial and injurious e ff ect on the jury’s verdict, we a ffi rm.

I. Background
In 2015, a Wisconsin jury convicted DeShawn Harold Jewell of robbery by use of force and bail jumping. The robbery conviction stemmed from a M arch 2015 robbery of a woman, C.F., outside of a Milwaukee tavern. At trial, C.F. testi fi ed that as she was walking from the tavern 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 o ff the stranger’s black and red winter hat. The stranger took C.F.’s purse and drove o ff, leaving his hat behind. Testing revealed that Jewell was a “major contributor” to DNA found on the hat, although there were two other, unidenti fi ed, minor contributors. A month after the robbery, and after receiving the DNAresults, Milwaukee Police prepared a photo lineup. That involved creating a “six pack”—a one-page internal document with Jewell’s photo and photos of fi ve other supposedly physically similar individuals. On the six pack, Jewell’s photo appeared second. The police also created a photo array. The array consisted of eight folders—one containing Jewell’s photo, fi ve containing photos of the other individuals on the six pack, and two empty folders. O ffi cers testi fi ed that they shu ffl ed the folders and C.F. identi fi ed her assailant in the third folder, which contained Jewell’s photograph. C.F. later testi fi ed that she wasNo. 22-3082 3

con fi dent her assailant’s photo wa s in the array because, before showing her the folders, an o ffi cer 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 identi fi ed Jewell as her assailant in court, butthroughout the trial, Jewell repeatedly challenged her identifi cation. Speci fi cally, he argued that the photo array procedure did not adhere to best prac tices, that two of the individuals in the array did not look like him, and that police improperly encouraged C.F. to make an identi fi cation. 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 hi s response. The trial court explained that its answer to the jury was “[b]ased upon the testimony that [the court] receiv ed on how the six pack was put together and based upon [its] 40 years of doing this.” Jewelldisagreed with the trial court’s approach. His counsel explained that his “preference would have been to have the jury [rely on] their collective memo ry of the testimony,” butacknowledged that “the six-pack and the photo array [numbering] are never the same.” Th e 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 court4 No. 22-3082

sentenced Jewell to eight years’ imprisonment and fi ve years’ supervised release. Jewell later moved for postconviction relief arguing, among other things, that the co urt 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 pres ence would not have changed it. The Wisconsin Court of Appeals a ffi rmed Jewell’s conviction and the denial of postconvic tion relief. While it held that the trial court commi tt ed a constitutional error by communicating ex parte with the jury, it concluded that this error was harmless. Jewell subsequently fi led a pro sehabeas petition arguing that the trial court violated his Sixth Amendment rights by communicating ex parte with the jury. The district court denied habeas relief but granted a certi fi cate of appealability. This appeal followed.

II. Discussion
“We review a district court’s ruling on a petition for habeas relief de novo.” Thurston v. Vanihel , 39 F.4th 921, 928 (7th Cir. 2022). “[A]lthough we technica lly 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 omi tt ed). 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 conviction, ‘[o]ur review is governed and (greatly limited) by theNo. 22-3082 5

Antiterrorism and E ff ective 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)). “Under AEDPA, habeas relief is only warranted if the state court’sdecision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” Sco ttv. 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 statecourt decisions,” Rhodes v. Di tt man , 903 F.3d 646, 655 (7th Cir. 2018), “[AEDPA] is a deferential and ‘di ffi cult to meet’ standard,” Jones v. Cromwell, 75 F.4th 722, 726 (7th Cir. 2023) (quoting 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 effect or in fl uence” on the jury’s verdict. Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (citation and internal quotation marks omi tt ed); 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. Eple tt, 48 F.4th 543, 557 (7th Cir. 2022). Accordingly, “a federal court must denyrelief to a state habeas petitioner who fails to satisfy either [the Supreme] Court’s equitable precedents or AEDPA. But to grantrelief, a court must find that the petiti oner has cleared both tests.”6 No. 22-3082

Brown , 596 U.S. at 134. Jewell has not satisfied either requirement.
A. AEDPA Starting with AEDPA’s statut ory requirements, Jewell argues that the Wisconsin Court of Appeals unreasonably applied Chapman when it held that the trial court’s error—communicating 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.’” Prui ttv. 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. Objectively unreasonable does not mean “merely wrong” or a “clear error.” Sco tt, 62 F.4th at 346 (quoting Prui tt, 788 F.3d at263). “Instead, the ruling must contain ‘an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Id. at 346–47.
Under Chapman , a constitutional error can be held harmless if the reviewing court can “declare a belief that it washarmless beyond a reasonable doubt.” 386 U.S. at 24. The Wisconsin Court of Appeals provided two rationales for its conclusion that the trial court’s error was harmless: (1) there was

su ffi cient 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) (explaining 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).No. 22-3082 7

testimony ( i.e. , factually correct). According to Jewell, both rationales unreasonably applied Chapman

. Jewell is correct about the appellate court’s fi rst rationale. It unreasonably applied Chapman when it substituted a su ffi

ciency-of-the-evidence analysis for harmless-error review. “Time and again, the Supreme Court has emphasized that a harmless-error inquiry is not th e same as a review for whether there was su ffi cient evidence at trial to support a verdict.” Jensen v. Clements , 800 F.3d 892, 902 (7th Cir. 2015). The question is not whether the legally admi tt ed evidence was su ffi cient, 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 determination 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 o ff ered two rationales to support 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 habeas petition was that “the tr ial court’s answer was factually correct” because it relied on “u ndisputed trial testimony.” At trial, “[d]efense counsel conc eded that the [photo array and six pack] numbering systems [were] di ff erent.” Jewell argues that the appellate court unreasonably applied Chapman when it failed to consider whether th e trial judge invaded the jury’s province as sole fact fi nder by crediting the (unchallenged) testimony of the prosecutio n’s witnesses. Ultimately,8 No. 22-3082

fairminded jurists could disagree, precluding relief. See Harrington , 562 U.S. at 101 (“A state co urt’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagr ee on the correctness of the state court’s decision.” (interna l citation and quotation marks omi tt ed)).
Few courts have considered whether ex partecommunications like those at issue here are harmless. Those that have reached varying outcomes, re fl ecting 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] test imony in order to answer” the question, the court’s ex parte communication was harmless beyond a reasonable doubt. Id. at 1529–30. The First Circuit, by contrast, disagreed that a trial court’s answer to a substantive questionconstituted 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.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 conversations but told the jurors th e record was unclear as to another date. Id. at 786. In holding this answer was not harmless, the First Circuit explained that even if the ma tt er was undisputed—that is, not “directly contradicted by con fl icting evidence”—the trial court invaded the fact fi nders’ province as to a “fundamental question[] of fact.” Id. at 788–89. This Circuit has grappled wi th similar harmlessness determinations. In United States v. Ne ff

, 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 speci fi c 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 Ne ff was a “closer call.” Id. The jury also asked the trial court whether th e 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 evidence, the inference “was [one] to be drawn by the jury as fact fi nder—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, o ffi cers testi fi ed that they prepared an internal six-pack, where Jewell appeared second, and shu ffl ed the photo array fold ers before C.F. identi fi ed Jewell in the third folder. Jewell did not argue, or even hint, that the numbering of the array and six pack was the10 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 Ne ff

, that the trial court made a reasonable inference 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 su ffi ce. It is not objectively unreasonable for a fa irminded 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 commi tt ed error, but it did not commit an error “beyond any possibility for fairminded disagreement.” Sco tt, 62 F.4th at 346–47 (citatio n and internal quotation marks omi tt ed). Accordingly, habeas relief is not warranted.

B. Equitable PrecedentsEven assuming that the Wisconsin Court of Appeals unreasonably 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 e ff ect or in fl uence 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 assessmentin determining whether the instructional error had a substantial and injurious e ff ect or in fl uence in determining the jury’s verdict.” Brown , 48 F.4th at 561. To do so “we must ask ourselves ‘whether a properly inst ructed jury would have arrived at the same verdict, absent the error.’” Id. (quoting Arm fi eld v. Nicklaus , 985 F.3d 536, 543–44 (7th Cir. 2021)). This assessmentNo. 22-3082 11

includes a consideration of “the overall strength of the State’s case against the totality of the evidence.” Id . Under this standard, a court may only grant habeas relief if it “harbor[s] ‘grave doubt’ ... about whether the trial error a ff ected 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 th at, in the judge’s mind, the

ma tt er is so evenly balanced thathe 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 verdic t shortly after the communication. As Jewell sees it, C.F.’s photo array identi fi cation was emphasized throughout the trial, and the jury’s question suggests a focus on the array during deliberations as well. The trial court’s ex parte answer, crediting the o ffi cer’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,” “mayhaves,” and “coulds” to sow grave doubt. The trial court’s answer may have improperly credited the o ffi cer’s testimony, but Jewell never disputed the numbering. For Jewell’s theory to be accepted, the jury would have had to fi nd the o ffi cers so unbelievable that they rejected even unchallenged portions of the o ffi cers’ testimony. Moreover, the DNA evidence, identifying 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 trial12 No. 22-3082

court’s ex parte answer was determinative. Accordingly, even if the jury disbelieved the o ffi cers, the ma tt er 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 A FFIRM the district court’s denial of habeas relief.