Gerrod Bell v. Randall Hepp

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2819
GERROD R. BELL,
Petitioner-Appellant,
v.
RANDALL HEPP,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:18-cv-01439 — J. P. Stadtmueller, Judge.
____________________
ARGUED APRIL 25, 2023 — DECIDED JUNE 7, 2023
____________________
Before RIPPLE, ST. EVE, and PRYOR, Circuit Judges.
RIPPLE, Circuit Judge. At Gerrod Bell’s trial for sexual as-
sault, a Wisconsin prosecutor argued that an acquittal would
require jurors to believe that the witnesses were lying and
stressed that there was no evidence of a motive to lie. After
Mr. Bell was convicted, he moved for a new trial, claiming
that the prosecutor’s argument made his trial unfair by imply-
ing that the defense had the burden to prove innocence and
that jurors with a reasonable doubt about the witnesses’
2 No. 21-2819
accounts could still convict if they “believed” the witnesses
were more credible than not. The Supreme Court of Wiscon-
sin rejected Mr. Bell’s claim; it held that the comments were
not improper. The district court denied his petition for a writ
of habeas corpus.
We affirm the judgment of the district court. If our review
were de novo, the prosecutor’s comments might give us sig-
nificant pause. But in this habeas corpus case, the Antiterror-
ism and Effective Death Penalty Act (“AEDPA”) limits our re-
view. Under AEDPA’s deferential standard, we must con-
clude that the Supreme Court of Wisconsin’s decision was
neither contrary to nor an unreasonable application of clearly
established federal law as determined by the Supreme Court
of the United States. See 28 U.S.C. § 2254(d).
I
BACKGROUND
Two sisters accused Mr. Bell, a friend of their mother, of
sexually assaulting them. The younger sister said that Mr. Bell
assaulted her when she was fourteen years old, at her sister’s
birthday party. The older sister later said that around the date
of the party, Mr. Bell groped her (the older sister’s) breasts.
Months after that report, the older sister added that, some-
time before the groping, Mr. Bell had nonconsensual inter-
course with her.
At trial, both sisters testified in detail about the assaults.
Given the time between the alleged assaults and initial re-
ports, the State did not have physical evidence implicating
Mr. Bell. Because Mr. Bell did not testify, the trial focused on
the sisters’ testimony.
No. 21-2819 3
Mr. Bell’s trial counsel sought to undermine the sisters’
credibility. He suggested that the girls had motives to lie
about the assaults. Counsel also highlighted the younger sis-
ter’s admissions that she had been drunk at the party and, at
her mother’s urging, initially had lied to police about her ine-
briation. Counsel further emphasized that the older sister’s
account had changed over time. Counsel noted that, when po-
lice investigating the younger sister’s allegations asked the
older sister if she too had been assaulted, she initially said
nothing. Then, when she reported that Mr. Bell had touched
her breasts, she told police there had been no other assaults.
Approximately five months later, however, she reported the
sexual intercourse. She explained that she did not immedi-
ately report the assaults because she was ashamed and
wanted to forget about them. The older sister also testified
that her mother had asked her to lie at one of Mr. Bell’s pre-
trial hearings about the younger sister’s drinking.
To aid jurors in their evaluation of this evidence, the judge
gave thorough and proper instructions: Mr. Bell was not re-
quired to prove anything; the State had the burden to prove
guilt beyond a reasonable doubt; the jury must decide the case
based only on the evidence; the attorneys’ arguments were
not evidence; and the jury should disregard any arguments
suggesting facts not in evidence.
In closing arguments, however, the prosecutor made two
categories of remarks that, in Mr. Bell’s view, undermined
those instructions and shifted the burden of proof from the
State to Mr. Bell. First, the prosecutor stated that jurors who
voted to acquit would “have to believe” or “must believe”
4 No. 21-2819
1
that the sisters were lying about the assaults. Mr. Bell’s law-
yer objected that this argument amounted to “reversing” the
2
burden of proof. The trial court overruled the objection.
Next, the prosecutor argued that if someone lies, “they’re
going to have a reason” to do so, and that there was no evi-
dence that the sisters had reason to lie about the assaults, even
3
if they had lied about the alcohol. Mr. Bell’s lawyer coun-
tered that the sisters could well be lying, pointing to the evo-
lution of their stories and to their mother’s request that they
commit perjury. In rebuttal, the prosecutor dismissed those
4
contentions as “pure speculation.” The prosecutor told the
jury that it could not base its decision “on mere guesswork or
5
speculation.”
The jury convicted Mr. Bell. Because of his prior unrelated
sexual-assault convictions, the court sentenced him to life in
prison without parole.
Mr. Bell then filed a post-conviction motion to vacate the
judgments of conviction and requested a new trial. In relevant
part, his motion claimed that he did not receive a fair trial be-
cause the prosecutor’s comments during closing argument
shifted the burden of proof. The circuit court denied Mr. Bell’s
motion. The Wisconsin Court of Appeals affirmed. State v.
1 R.12-9 at 19–24.
2 Id. at 20–21.
3 Id. at 30–31.
4 Id. at 62–63.
5 Id.No. 21-2819 5
Bell, 895 N.W.2d 104 (Wis. Ct. App. 2016) (unpublished table
decision).
The Supreme Court of Wisconsin in a divided opinion also
affirmed. State v. Bell, 909 N.W.2d 750, 753, 767–68 (Wis. 2018).
That court focused on whether the prosecutor’s closing argu-
ment “so infected the trial with unfairness as to make the re-
sulting conviction a denial of due process.” Id. at 757 (quoting
State v. Mayo, 734 N.W.2d 115, 126 (Wis. 2007)) (citing Darden
v. Wainwright, 477 U.S. 168, 181 (1986)). After considering the
prosecutor’s comments “in the context of the entirety of the
trial,” the court concluded that the prosecutor’s closing argu-
ment was not improper. Id. at 757–68. The sisters’ testimony,
the court explained, established all elements of the charged
crimes, so the only path to acquittal was to “convince the jury
6
that the victims lied.” Id. at 765. In the Supreme Court of Wis-
consin’s view, the prosecutor did no more than highlight the
credibility issue on which the case turned. Id. at 766.
Next, the court upheld the prosecutor’s statement that
people normally lie for a reason as an unobjectionable obser-
vation about ordinary life experience. Id. at 767. Commenting
that there was no evidence of a reason for the sisters to lie
about the assaults did not amount to an insistence that
Mr. Bell had an evidentiary burden to carry; it was simply a
characterization of the lack of affirmative reasons to disbe-
lieve the sisters’ eyewitness testimony. Id. at 768. The court
reasoned that the prosecutor’s argument amounted to
6 The court distinguished our decisions in United States v. Vargas, 583 F.2d
380, 387 (7th Cir. 1978), and United States v. Cornett, 232 F.3d 570, 574
(7th Cir. 2000), on the ground that, in both cases, jurors could both believe
the witnesses and still have acquitted.
6 No. 21-2819
persuasion rather than a statement of law. Id. at 767. The court
also upheld the prosecutor’s admonition that the jurors must
not speculate with respect to a witness’s credibility. The court
explained that, “[a]s in all other aspects of the case, the jury
must consider the witnesses’ testimony in light of the admis-
sible evidence and reasonable inferences, all as directed by
their ‘common sense and experience.’” Id. at 768.
In a concurring opinion, Justice Ziegler clarified why the
prosecutor’s “must believe” statements did not amount to er-
ror. Id. at 773 (Ziegler, J., concurring). She explained that the
prosecutor’s arguments were not evidence and that the wit-
nesses’ testimony—the sole evidence in the case—was suffi-
cient to prove guilt. See id. The prosecutor’s statements simply
described the duty of the jury to assess the witnesses’ credi-
bility. Id. at 774.
Justice Bradley dissented, opining that the prosecutor’s
“motive” statements suggested that Mr. Bell must present ev-
idence of the victims’ motive to lie in order for the jury to ac-
quit him. Id. at 775–77 (Bradley, J., dissenting). Thus, the pros-
ecutor’s statements constituted an improper argument that
shifted the burden of proof from the State to Mr. Bell and ab-
rogated the presumption of innocence to which Mr. Bell was
entitled. Id. at 777 (citing United States v. Smith, 500 F.2d 293,
294–95 (6th Cir. 1974)).
Mr. Bell then filed a pro se petition for a writ of habeas
corpus, which the district court denied. Applying the defer-
ential AEDPA standard, 28 U.S.C. § 2254(d), the court ruled
that the Supreme Court of Wisconsin’s decision was not con-
trary to or an unreasonable application of clearly established
federal law. The court denied Mr. Bell a certificate of
No. 21-2819 7
appealability. We, however, granted him a certificate and ap-
pointed counsel.
II
DISCUSSION
Although we review the district court’s denial of the peti-
tion de novo, our review is constrained by AEDPA’s deferen-
tial treatment of state-court decisions. Evans v. Jones, 996 F.3d
766, 774 (7th Cir. 2021). To obtain relief, Mr. Bell must estab-
lish that the Supreme Court of Wisconsin’s decision “was con-
trary 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). A state court de-
cision is “contrary to … clearly established Federal law” “if
the state court applies a rule different from the governing law
set forth in [Supreme Court] cases, or if it decides a case dif-
ferently than [the Supreme Court has] done on a set of mate-
rially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 693–
94 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405–06 (2000)).
A decision involves an “unreasonable application of[] clearly
established Federal law” if it “correctly identifies the govern-
ing legal principle from [Supreme Court] decisions but unrea-
sonably applies it to the facts of the particular case.” Id. Only
Supreme Court precedent—not circuit precedent—estab-
lishes the constitutional law against which we measure the
state decision. Parker v. Matthews, 567 U.S. 37, 48–49 (2012)
(per curiam).
To evaluate a claim of unconstitutional closing argument
by a prosecutor, we turn to the clearly established federal law
articulated in Darden v. Wainwright, 477 U.S. 168 (1986).
See Parker, 567 U.S. at 45. Darden requires that the comments
8 No. 21-2819
under scrutiny not only must be “improper,” but also must
have “so infected the trial with unfairness as to make the re-
sulting conviction a denial of due process.” Darden, 477 U.S.
at 180–81 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). The Darden standard is therefore “highly general-
ized,” and under AEDPA state courts enjoy significant leeway
in applying it. Parker, 567 U.S. at 48–49. The Court has not
drawn a precise line between “proper” and “improper” argu-
ment.
Mr. Bell contends that the prosecutor’s comments were
improper because they wrongly implied that (1) in order for
the jury to acquit, Mr. Bell needed (but failed) to offer evi-
dence that the sisters were lying and (2) the jury could convict
even if it harbored a reasonable doubt about the truthfulness
of the sisters’ testimony.
Mindful of the latitude afforded state courts in deciding
Darden claims, we cannot conclude that the state court acted
unreasonably in holding that the comments were not im-
proper. Given the course of the trial and the parties’ strategies,
the Supreme Court of Wisconsin reasonably characterized the
case as presenting only one real question to the jury: Were the
sisters telling the truth? The State’s case relied on the sisters’
testimony, and the defense’s case relied on poking holes in it.
Under those circumstances, the Supreme Court of Wiscon-
sin reasonably concluded that the prosecutor did no more
than tell the jury that its decision about the sisters’ credibility
would, for practical purposes, decide the case. It was reason-
able to characterize the comments as properly inviting the
No. 21-2819 9
jury to believe the sisters absent evidence that they were ly-
7
ing.
CONCLUSION
Accordingly, the judgment of the district court is affirmed.
AFFIRMED
7 Cf. Cupp v. Naughten, 414 U.S. 141, 142, 148–50 (1973) (upholding jury
instructions creating rebuttable presumption that witnesses testify truth-
fully).