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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

TERRELL WESLEY,

Petitioner,

v.

ANTHONY WILLS, Warden,

Menard Correctional Center,

Respondent.

No. 20 C 03189

Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER

Petitioner Terrell Wesley filed this petition for writ of habeas corpus pursuant 

to 28 U.S.C. § 2254, challenging his 2013 conviction for first-degree murder in the 

Circuit Court of Cook County. Respondent filed his Rule 5 Answer, arguing that 

Petitioner’s claim is meritless under § 2254(d). For the reasons that follow, the Court 

denies and dismisses the petition with prejudice and declines to issue a certificate of 

appealability.

Background

I. Trial and post-trial motion

The facts as to Petitioner’s trial are taken from the Illinois Appellate Court’s 

opinion in People v. Wesley, 2015 IL App (1st) 130710-U, 2015 WL 3855601 (Ill. App. 

Ct. June 22, 2015), and are not in dispute. On July 17, 2008, Everitt Brown was shot 

to death at a grocery store in Maywood, Illinois. Petitioner was indicted in the Circuit 

Court of Cook County on a charge of first-degree murder for Brown’s killing. R. 25-

14. Petitioner pled not guilty, and the case proceeded to a bench trial.

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Several witnesses testified as to what they had seen at the time Brown was 

killed. Dwayne Ross and Larry Gates each testified they saw an African-American 

man in a white shirt with “stringy-like hair” or dreadlocks walking backwards while 

pointing a gun at the grocery store. The man then got into the passenger seat of a 

black Pontiac. Neither saw the man’s face.

Jason Ervin testified that he heard three or four gunshots, then saw a man

walking backwards away from the grocery store with a gun pointed at the store before 

getting into a black Pontiac with a female driver. He said Petitioner was wearing a 

white shirt and had short dreadlocks. Ervin wrote down the Pontiac’s license plate 

and called the police. Ervin identified Petitioner as the man he had seen. Another 

witness testified he was almost in an accident with a black car driven by a black 

woman who was “driving crazy,” and that he reported the license plate number to 

police.

The license plate was traced to Shara Cannon, Petitioner’s girlfriend at the 

time of the shooting. At trial, Cannon denied having been with Petitioner or seeing 

him with a gun on the day of the shooting. She testified that she did not remember 

her grand jury testimony. Cannon said that police had told her things would be easier 

if she cooperated—i.e., named Petitioner as the shooter. Cannon reviewed a written 

statement but had been in custody for more than 24 hours when she signed it.

Cannon’s grand jury testimony was admitted as substantive evidence under 

725 ILCS 5/115-10.1. Cannon testified before the grand jury that on the day of the 

shooting, she had been driving with Petitioner, who was wearing a white shirt. 

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Petitioner told her to stop at a convenience store, so she dropped him off and 

continued to drive for a little while before returning to pick him up. She then picked 

up Leon Thomas and drove everyone to her own house. Once there, the group was

joined by several others, including Pierre Robinson and Delvin Williams. At some 

point, Cannon heard Petitioner say that he had tapped on a window, a guy had run 

into the store, and that Petitioner pointed and shot.

Robinson was a longtime friend of Petitioner’s. He testified at trial that 

Petitioner and Williams were not with the group at Cannon’s house. He admitted to 

appearing before the grand jury but denied giving certain answers. Robinson later 

said that the police had threatened to charge him with murder and had given him a 

script to use before the grand jury.

Robinson’s grand jury testimony was also admitted as substantive evidence. 

Robinson told the grand jury that he met up with Petitioner at Cannon’s home. 

According to Robinson, Petitioner eventually learned that the shooting victim had 

died and said that no witnesses were going to tell on him now. Petitioner also said 

that his gun had jammed initially, and the victim had run into the store, but that he 

came back out to taunt Petitioner, who was “messing with the gun” and was then able 

to shoot the victim.

At the close of the State’s case, the defense moved for a directed verdict. The 

court heard argument and denied the motion. Petitioner elected not to testify, and 

the trial was continued. The next day, the trial court stated it had reviewed the 

evidence and exhibits and stated several findings:

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[L]ooking 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 [sic] a bullet and fragments found in the body of 

the victim. There were two shell casing found by the door.

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.

Id. at *3; R. 32.

Defense counsel then reminded the court that the parties had not presented 

closing arguments but had only argued a motion for a directed finding at the close of 

the State’s case. The court apologized and indicated it would let the parties argue. 

The State asked if that was the court’s ruling on the directed finding and the court 

said it was. The defense rested and the parties presented their closing arguments.

The court again found Petitioner guilty of murder. It stated it had considered 

the parties’ “lengthy closing arguments” as well as the “testimony which the 

witnesses on various details corroborate each other with regard to hairstyles, with 

regard to the clothes that the defendant was wearing, with regard to the car, with 

regard to a person pointing a gun and walking backwards from the store, with regard 

to identification” and the grand jury testimony of Cannon and Robinson. The court 

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found that Cannon and Robinson’s trial testimony was not credible, but that their 

grand jury testimony was properly admitted as substantive impeaching evidence.

Petitioner filed a motion and supplemental motion for new trial, arguing 

among other things that the court erred in finding him guilty prior to closing 

arguments. The court denied the motion, saying:

[The Court's] indication of the way that [it] was going to rule, that was 

premature and it was immediately brought to [the court's] attention at 

which point we had lengthy closing arguments.

As counsel is aware, there were also lengthy arguments for the motion 

for directed finding in this case. And while [the court] was incorrect in 

making the way [the court] was going to rule, [it] did hear the complete 

closing arguments and . . . reconsidered everything that was brought to 

[its] attention in those closing arguments, and it was on that basis that 

[the court] made [its] final ruling.

Wesley, 2015 WL 3855601, at *3. The court sentenced Wesley to 50 years’

incarceration.

II. Direct Appeal

Petitioner appealed his conviction to the Illinois Court of Appeals. There he 

argued that his right to a fair trial and his right to counsel were denied by the court’s 

pre-judging the case before allowing the parties to present closing arguments. The 

Court of Appeals affirmed the judgment of the trial court, finding that the trial court 

had acknowledged its mistake, permitted the parties to make closing arguments, and 

reiterated its finding after consideration of those arguments. Id. at *5. It further held 

that any error in the trial court’s “prejudging” the case was harmless. Id.

Petitioner raised the same issue in his motion for leave to appeal to the Illinois 

Supreme Court, which was denied. People v. Wesley, 39 N.E.3d 1010 (Ill. 2015) 

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(unpublished table decision). The Supreme Court then denied certiorari. Wesley v. 

Illinois, 578 U.S. 907 (2016) (Mem.).

III. Post-Conviction Petition

Petitioner timely filed a pro se post-conviction petition in the Circuit Court of 

Cook County. People v. Wesley, 158 N.E.3d 295, 300 (Ill. App. Ct. 2019). The petition 

alleged that the trial court’s admission of Cannon and Robinson’s prior inconsistent 

statements was a constitutional error, and that his trial and appellate counsel were 

ineffective for failing to raise this issue. The circuit court summarily dismissed the 

petition. Petitioner appealed that dismissal via a motion for leave to file a late notice 

of appeal. The appellate court granted leave but affirmed the judgment of the circuit 

court. Id. at 304. The Illinois Supreme Court denied leave to appeal. People v. Wesley, 

140 N.E.3d 253 (Ill.) (unpublished table decision). 

Petition filed a pro se petition for habeas corpus on or about May 24, 2020. 

After Respondent answered, Petitioner retained counsel and obtained written 

consent from Respondent to file the instant amended petition, which he filed on April 

30, 2021.1

Legal Standard

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be granted 

1 Respondent’s Answer to the original petition contended that it was barred by the 

statute of limitations. Petitioner thereafter provided an affidavit establishing an 

earlier filing date. Respondent has accordingly dropped his time-bar defense. R. 35, 

at 7 n.1.

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with respect to any claim that was adjudicated on the merits in State 

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the 

State court proceeding.

A state court decision is contrary to federal law if the state court applied a rule 

that is opposite from the law established by the United States Supreme Court, or if 

the state court decides a case differently than the United State Supreme Court did in 

a case with materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 

(2000). A state court’s application of federal law is unreasonable if it correctly 

identifies the governing legal principle but unreasonably applies it to the facts of a 

particular case. Id. at 407.

Analysis

Petitioner’s sole argument for habeas relief relates to the state court’s alleged 

denial of his Sixth Amendment right to counsel and to present a defense when it made 

factual findings of guilt before Petitioner had an opportunity to make a closing 

argument. Petitioner contends that the Illinois appellate court unreasonably applied 

the rule from Herring v. New York, 422 U.S. 853 (1975). In Herring, the Supreme 

Court invalidated a state law that gave a judge in a nonjury criminal trial

discretionary authority to “deny counsel any opportunity to make a summation of the 

evidence before the rendition of judgment.” Id. at 853. Observing that “closing 

argument for the defense is a basic element of the adversary factfinding process in a 

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criminal trial,” the Court held that “total denial of the opportunity for final argument 

in a nonjury criminal trial is a denial of the basic right of the accused to make his 

defense,” in violation of the Sixth Amendment. Id. at 858-59. The Supreme Court has 

since indicated that the right to present closing argument is so central to defense 

counsel’s role to “assist[ ] the accused during a critical stage of the proceeding” that 

denial of this right is a constitutional error requiring reversal even absent a showing 

of prejudice. See United States v. Chronic, 466 U.S. 648, 659 n.25 (1984).

Petitioner contends that the principle in Herring encompasses the 

circumstances of his trial. In his view, the trial judge’s announcement of certain 

factual findings—including a statement that the court “would make a finding of 

guilty”—before closing argument was the “legal and functional equivalent of a 

complete denial of the right.” R. 32, at 18. He cites to several lower court cases that 

have applied Herring to find a constitutional violation where a trial judge announces 

a verdict or finding before closing argument, then reiterates that finding after 

allowing argument. See Spence v. State, 463 A.2d 808 (Md. 1983); Nickels v. State, 81 

N.E.3d 1092 (Ind. Ct. App. 2017); cf. State v. Gilman, 489 A.2d 1100 (Me. 1985) 

(finding constitutional violation where trial judge announced verdict without 

opportunity for closing argument but offered to vacate the verdict and reopen the case 

for argument in response to motion for new trial).

The Court is initially skeptical that Petitioner’s “application” of Herring to this 

case is really an application and not an extension. “‘[I]f a habeas court must extend a 

rationale before it can apply to the facts at hand,’ then by definition the rationale was 

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not ‘clearly established at the time of the state-court decision.’” White v. Woodall, 572 

U.S. 415, 426 (2014) (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). 

Granted, § 2254(d)(1) does not require courts to wait for an “identical factual pattern” 

before applying a legal rule. Id. at 427 (quoting Panetti v. Quarterman, 551 U.S. 930, 

953 (2007)). But Herring spoke of the complete denial of a defendant’s right to present 

a summation at the close of evidence. See 422 U.S. at 863 (“[T]here can be no 

justification for a statute that empowers a trial judge to deny absolutely the 

opportunity for any closing summation at all.”). That did not occur here—at most 

Petitioner says it was the “legal and functional equivalent.” Construing “deny 

absolutely” to include scenarios in which a defendant is actually able to present 

argument reads much more as an extension than an application. The Illinois Court 

of Appeals recognized this disconnect when it held that Herring did not require 

automatic reversal in cases of premature announcement of judgment. See People v. 

Little, 129 N.E.3d 113, 124 (Ill. App. Ct. 2018) (“If automatic reversal is to be required 

in this context, the rule will have to be justified by different considerations than those 

offered in Herring.”).

Even if Herring nominally applies here, Petitioner’s citation to state court 

decisions endorsing his view of Herring is of limited value, as such decisions do not 

constitute “clearly established Federal law, as determined by the Supreme Court.” 

Kernan v. Cuero, 138 S. Ct. 4, 9 (2017). And as noted, other courts have reached the 

opposite conclusion while citing Herring, including the state where Petitioner was 

convicted. See People v. Daniels, 366 N.E.2d 1085 (Ill. App. Ct. 1977) (finding no 

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violation of the Herring principle where trial judge entered guilty finding without 

argument but immediately permitted argument upon request of defense counsel); 

United States v. Price, 795 F.2d 61 (10th Cir. 1986) (holding that no violation results 

from premature announcement of finding so long as the record shows that the trial 

judge was willing to keep an open mind through closing arguments); see also Little, 

129 N.E.3d at 124 (rejecting argument that Herring requires automatic reversal in 

the event of premature judgment and holding that “[r]eopening a case for closing 

argument is an adequate remedy for a premature judgment when the record shows 

that the judge was willing to hear the defense's argument with an open mind”). This 

muddled decisional landscape effectively precludes habeas relief, which is available 

only if the state court’s adjudication of a claim resulted in “an error well understood 

and comprehended in existing law beyond any possibility for fairminded 

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). It is clear that 

Petitioner’s interpretation of Herring as applied to this case is far from universal and 

has never been endorsed by the United States Supreme Court. This is a sufficient 

basis for denying his petition.

Finally, as to the core merits of Petitioner’s claim, the Court does not find a 

violation of his Sixth Amendment rights. The reasoning in Little is persuasive. As the 

Illinois Court of Appeals observed, Herring says only that a defendant may not be 

absolutely denied the right to present a summation at the close of evidence. It does 

not “indulge the fantasy that a trier of fact will suspend all judgment until the last 

word is uttered in rebuttal argument.” Little, 129 N.E.3d at 126. The true Sixth 

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Amendment concern is whether the trial court, acting as factfinder, maintained an 

open mind and a willingness to be persuaded through closing arguments. See id. at 

124.

The record here indicates the trial court maintained that open mind. After 

prematurely announcing its findings, the court immediately apologized and 

permitted the parties to present their arguments. It then re-announced its verdict, 

stating on the record that it had considered the parties’ “lengthy closing arguments.” 

The fact that Petitioner’s summation was unsuccessful in swaying the court to his 

side does not equate to a denial of his right to present it. See Herring, 422 U.S. at 863 

(“And surely in many such cases a closing argument will, in the words of Mr. Justice 

Jackson, be ‘likely to leave (a) judge just where it found him.’” (quoting R. Jackson, 

The Struggle for Judicial Supremacy 301 (1941))).

Certificate of Appealability

The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. 

§ 2253(c)(2). Rule 11(a) of the Rules Governing § 2254 Proceedings provides that the 

district court “must issue of deny a certificate of appealability when it enters a final 

order adverse to the applicant.” See Gonzalez v. Thaler, 565 U.S. 134, 143 n.5 (2012). 

To obtain a certificate, a habeas petitioner must make “a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This demonstration “includes 

showing that reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000); see also Lavin v. Rednour, 641 F.3d 830, 832 (7th 

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Cir. 2011). Here, the Court’s denial of the petition rests on the application of wellsettled precedent, particularly as it pertains to whether the state court’s adjudication 

of Petitioner’s claim constituted an “unreasonable application of clearly established 

Federal law.” Accordingly, certification of Petitioner’s claim for appellate review is 

denied.

Conclusion

For the foregoing reasons, the petition is denied and the Court declines to issue 

a certificate of appealability.

ENTERED:

______________________________

Honorable Thomas M. Durkin

United States District Judge

Dated: February 24, 2022

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