In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 22-3082 

DESHAWN HAROLD JEWELL, 

Petitioner-Appellant, 

v.

GARY BOUGHTON, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Eastern District of Wisconsin. 

No. 19-cv-00658 — Pamela Pepper, Chief Judge. 

____________________ 

ARGUED NOVEMBER 6, 2023 — DECIDED JANUARY 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 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 Effective 

Death Penalty Act arguing that the state appellate court unreasonably applied Supreme Court precedent in its 
2 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 effect on the jury’s verdict, we affirm. 

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 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 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 off the stranger’s black and red 

winter hat. The stranger took C.F.’s purse and drove off, leaving 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 involved creating a “six pack”—a one-page internal document 

with Jewell’s photo and photos of five 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, five containing 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 contained Jewell’s photograph. C.F. later testified that she was 
No. 22-3082 3

confident her assailant’s photo was in the array because, before 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 identification. Specifically, he argued that the photo array procedure did not adhere to best practices, that two of the individuals in the array did not look like him, and that police improperly 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 explained that its answer to the jury was “[b]ased upon the testimony 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 explained 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 [numbering] 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 
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 conviction and the denial of postconviction relief. While it held that 

the trial court committed a constitutional error by communicating 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 denied habeas relief but granted a certificate 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 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 conviction, ‘[o]ur review is governed and (greatly limited) by the 
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)). “Under AEDPA, habeas relief is only warranted if the state court’s 

decision ‘was contrary to, or involved an unreasonable application 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 statecourt decisions,” Rhodes v. Dittman, 903 F.3d 646, 655 (7th Cir. 

2018), “[AEDPA] is a deferential and ‘difficult 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 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 habeas 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.” 
6 No. 22-3082 

Brown, 596 U.S. at 134. Jewell has not satisfied either requirement. 

A. AEDPA 

Starting with AEDPA’s statutory 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.’” 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. Objectively 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 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 was 

harmless 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 

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) (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 first rationale. 

It unreasonably applied Chapman when it substituted a sufficiency-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.” Jensen 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 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 offered 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 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, 
8 No. 22-3082 

fairminded jurists could disagree, precluding relief. See Harrington, 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 communications 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 beyond 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. 
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 the 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 matter was undisputed—that is, not “directly contradicted by conflicting evidence”—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 determinations. 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 evidence, 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. identified Jewell in the third folder. Jewell did not argue, or even 

hint, that the numbering of the array and six pack was the 
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 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 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 commit an error “beyond any possibility for fairminded disagreement.” Scott, 62 F.4th at 346–47 (citation and internal quotation marks omitted). Accordingly, habeas relief is not warranted. 

B. Equitable Precedents 

Even 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 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 substantial and injurious effect or influence in determining the jury’s 

verdict.” Brown, 48 F.4th at 561. To do so “we must ask ourselves ‘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 
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 standard, 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 communication. As Jewell sees it, C.F.’s photo array identification 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 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 answer 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, 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 trial 
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.