Edward L. Ellsworth v. Mark Levenhagen

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1928
Edward L. Ellsworth,
Petitioner-Appellant,
v.
Mark Levenhagen,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99-cv-0115--Allen Sharp, Judge.
Argued February 22, 2001--Decided April 20, 2001
Before Bauer, Coffey, and Manion, Circuit Judges.
Coffey, Circuit Judge. On February 25, 1999,
Edward L. Ellsworth filed a petition for a writ
of habeas corpus, 28 U.S.C. sec. 2254, arguing
that his Sixth Amendment rights were violated
when an Indiana trial court answered two written
questions from the jury without consulting and
outside the presence of defense counsel. The
district court denied the petition, and Ellsworth
now appeals. We affirm.
I. FACTUAL BACKGROUND
Edward Ellsworth was convicted in the Allen
County (Indiana) Circuit Court of robbery causing
serious bodily injury and sentenced to thirty
years in prison. At one point during jury
deliberations after his trial, the jurors
forwarded two written questions to the judge. The
first question asked, "Is the jury able to obtain
copies of police reports for review? a) Pappas;
b) Clifford; c) Taylor; d) Quait." The judge
responded that "reports are not evidence, only
testimony and exhibits [are evidence]." The
second question submitted to the judge asked, "Is
the jury able to review exhibits again?" The
judge answered "yes" to this question. But the
judge did not inform counsel that the jury had
submitted these written questions before
answering them.

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After the jury returned a guilty verdict, the
judge then informed the parties that "notes from
the jury are available for inspection of
counsel." Ellsworth’s counsel inquired as to when
the judge had received communications from the
jury and the nature of the court’s response. The
trial judge informed defense counsel that he had
received two notes during deliberations and had
inserted his handwritten responses on the bottom
of each of the notes. Both notes were then
entered into the court’s record. At this time,
Ellsworth’s counsel objected to the judge’s
communications with the jury, particularly noting
that even though the police reports themselves
were not admitted in evidence, each officer read
a substantial portion of their respective reports
into the record during the presentation of the
state’s case-in-chief.
On direct appeal to the Indiana Appellate
Court, Ellsworth argued that the judge’s ex parte
communication with the jury violated "[his] right
to be present at every stage of the proceedings."
Although Ellsworth did not explicitly mention the
Sixth Amendment in his brief on direct appeal, he
cited and relied extensively upon, Jewell v.
Indiana, 624 N.E.2d 38, 41-42 (Ind. Ct. App.
1993), an Indiana case that relied upon the Sixth
Amendment to support the proposition that a
criminal defendant has the right to be present at
all critical stages of criminal proceedings.
Ellsworth argued that he had been prejudiced by
the ex parte communication because his counsel
could have provided alternate responses had he
been informed of the questions. The Indiana
Appellate Court affirmed Ellsworth’s conviction,
noting that:
Ellsworth objected to the communications, but
stated no specific grounds. He now contends that
had he been advised of the jury’s notes, he could
have ascertained whether there was a disagreement
among the jurors as to the testimony concerning
the police reports. However, the requests do not
indicate a disagreement as to the testimony
relating to the exhibits. Although the judge’s
response to the notes creates a rebuttable
presumption that error was committed, the judge’s
communication had no effect upon the jury’s
ability to come to a fair determination of the
case. Furthermore, the trial judge denied the
jury’s request to obtain copies of police
reports. When a trial judge responds to a jury
question by denying the jury’s request, any
inference of prejudice is rebutted and the error
is deemed harmless. Morrison v. State, 609 N.E.2d
1155 (Ind. Ct. App. 1993). Therefore, no harm
resulted from the court’s communication with the
jury outside Ellsworth’s presence.

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Shortly after his state petition for post-
conviction relief was denied without prejudice,
Ellsworth commenced this habeas corpus action in
the Federal district court for the Northern
District of Indiana alleging, among other things,
the right to be present during communications
between the judge and the jury. Although the
Federal district court noted that it was "greatly
troubled by the communication and dealings
between the state trial judge and jury during
deliberations which have both Sixth Amendment and
due process implications," it considered the
error to be harmless and denied Ellsworth’s
petition. The district court, however, granted
Ellsworth a certificate of appealability with
regard only to his Sixth Amendment claim.
Ellsworth appeals that issue.
II. ISSUE
Ellsworth argues on appeal that he was
prejudiced by the ex parte communications between
the state trial judge and the jury and therefore
the district court erred in finding the judge’s
communication to be harmless.
III. DISCUSSION
A. Standard of Review
Under the current regime governing federal
habeas corpus for state prison inmates, the
inmate must establish that the state court
proceedings:
(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.
28 U.S.C. sec. 2254(d); see also Williams v.
Taylor, 529 U.S. 362 (2000); Morgan v. Krenke,
232 F.3d 562 (7th Cir. 2000).
In reviewing a district court’s denial of a
petition for writ of habeas corpus, we review de
novo the district court’s conclusions of federal
law, as well as the district court’s mixed
questions of law and fact. Kurzawa v. Jordan, 146
F.3d 435, 439 (7th Cir. 1998); Verdin v. O’Leary,
972 F.2d 1467, 1481 (7th Cir. 1992). The district
court’s factual determinations, however, are
presumptively correct and should not be set aside
unless clearly erroneous. Stone v. Farley, 86
F.3d 712, 716 (7th Cir. 1996). Further, "’state
court factual findings that are reasonably based

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on the record are accorded a presumption of correctness.’"
Kurzawa, 146 F.3d at 440 (quoting Bryan v.
Warden, Indiana State Reformatory, 820 F.2d 217,
218 (7th Cir. 1987)); see also 28 U.S.C. sec.
2254(e)(1).
B. Procedural Default
Before we proceed to the merits of Ellsworth’s
petition, we must determine whether he properly
presented his Sixth Amendment claim in the state
court proceedings. "Initially, the state courts
must have had a ’fair opportunity’ to consider a
question of constitutional import before federal
collateral review on that question is
appropriate." Kurzawa, 146 F.3d at 441 (citing
Burgin v. Broglin, 900 F.2d 990, 996 (7th Cir.
1990)). "A ’fair presentment’ of a petitioner’s
claims requires that a petitioner give state
courts ’a meaningful opportunity to pass upon the
substance of the claims [petitioner] later
presses in federal court.’" Spreitzer v. Schomig,
219 F.3d 639, 645 (7th Cir. 2000) (quoting Howard
v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.
1999)). To satisfy that requirement, an inmate
must present "both the operative facts and the
legal principles that control each claim to the
state judiciary." Wilson v. Briley, No. 00-1277,
2001 WL 219902, *1 (7th Cir. Mar. 5, 2001).
In determining whether a petitioner has fairly
presented a claim to the state judiciary, we
examine four factors: 1) whether the petitioner
relied on federal cases that engage in a
constitutional analysis; 2) whether the
petitioner relied on state cases which apply a
constitutional analysis to similar facts; 3)
whether the petitioner framed the claim in terms
so particular as to call to mind a specific
constitutional right; and 4) whether the
petitioner alleged a pattern of facts that is
well within the mainstream of constitutional
litigation. Id.; Sullivan v. Fairman, 731 F.2d
450, 454 (7th Cir. 1984); Verdin, 972 F.2d at
1473-1474. "The bottom line is that the ’task of
the habeas court in adjudicating any issue of
fair presentment is assessing, in concrete,
practical terms, whether the state court was
sufficiently alerted to the federal
constitutional nature of the issue to permit it
to resolve that issue on a federal basis.’"
Kurzawa, 146 F.3d at 442 (quoting Verdin, 972
F.2d at 1476).
While the presence of any one factor,
particularly factors one and two, does not
preserve an appeal, id., here three factors are
present. First, Ellsworth’s reliance on Jewell
alerted the state court to his Sixth Amendment
claim. Jewell relied heavily upon the Sixth

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Amendment in its analysis of an similar claim.
624 N.E.2d at 41-42. More importantly,
Ellsworth’s claim, that the judge’s ex parte
communication violated "[his] right to be present
at every stage of the proceedings," calls to mind
his Sixth Amendment right. See, e.g., Illinois v.
Allen, 397 U.S. 337 (1970) (identifying the
"right to be present" as "[o]ne of the most basic
rights guaranteed by the Confrontation Clause");
Verdin, 972 F.2d at 1480 (claim based on "right
to be present at critical stages" of trial was
phrased in terms so particular to call to mind
the Sixth and Fourteenth Amendments). Finally,
the pattern of facts that Ellsworth alleged is
"well within the mainstream of constitutional
litigation." Indeed, the state admitted at
argument that the state court’s analysis would
have been the same whether the court examined
Ellsworth’s claim under the United States
Constitution or under Indiana’s Constitution.
Ellsworth was not required to cite the
Constitution "book and verse" to preserve his
federal claim, Picard v. Connor, 404 U.S. 270,
278 (1971), and we believe his assertion of a
"right to be present" was sufficient to alert the
Indiana court that he potentially pressed a
federal constitutional claim. Thus, we proceed to
the merits of Ellsworth’s petition.
C. Ellsworth’s Sixth Amendment Claim
The Supreme Court has held that the
Confrontation Clause of the Sixth Amendment/1
includes the "right to be present in the
courtroom at every stage of the trial." Allen,
397 U.S. at 338. This constitutional right to
presence, though rooted in the Sixth Amendment,
"is protected by the Due Process Clause in some
situations were the defendant is not actually
confronting witnesses or evidence against him."
United States v. Gagnon, 470 U.S. 522, 526
(1985). But the constitutional right to presence
is not implicated per se by a judge’s ex parte
communication with the jury during deliberations.
Verdin, 972 F.2d at 1481-82.
[T]he mere occurrence of an ex parte conversation
between a trial judge and a juror does not
constitute a deprivation of a constitutional
right. The defense has no constitutional right to
be present at every interaction between a judge
and a juror, nor is there a constitutional right
to have a court reporter transcribe every such
communication.
Gagnon, 470 U.S. at 526 (quoting Rushen v. Spain,
464 U.S. 114, 125-26 (1983) (Stevens, J.,
concurring)).
Accordingly, the due process right to be present
at each and every communication between the judge

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and jury is implicated only when such presence
"’has a relation, reasonably substantial, to the
fullness of [a defendant’s] opportunity to defend
against the charge . . . to the extent that a
fair and just hearing would be thwarted by his
absence.’" Verdin, 972 F.2d at 1482 (quoting
Gagnon, 470 U.S. at 526) (omission in original).
The defendant’s right is violated only where his
absence renders the trial "fundamentally unfair
in light of the entire proceedings." United
States v. Widgery, 778 F.2d 325, 330 (7th Cir.
1985). Thus, the proper inquiry is whether the ex
parte communication had a prejudicial effect on
the defendant, Verdin, 972 F.2d at 1482, and "so
infect[ed] the trial process as to make the trial
as a whole fundamentally unfair," id. at 1480
(quoting district court opinion).
Initially Ellsworth argues that the Indiana
Court of Appeals applied a rule that was contrary
to the law as set forth by the United States
Supreme Court because Supreme Court precedent
required that the ex parte communication be
deemed presumptively prejudicial. Ellsworth
contends that the Supreme Court has held that any
ex parte communication with the jury is
presumptively prejudicial, Remmer v. United
States, 347 U.S. 227 (1954). Remmer, however, is
distinguishable from this case. In Remmer an
unnamed third party contacted a juror and
suggested that "he could profit by bringing in a
verdict favorable to the petitioner." Id. at 228.
Ellsworth cites no other Supreme Court precedent
to establish the proposition that any ex parte
contact between a judge and jury creates a
presumption of prejudice, and Gagnon suggests
that, at the least, ex parte communications
between the judge and the jury are not per se
unconstitutional. See Gagnon, 470 U.S. at 526
("[t]he mere occurrence of an ex parte
conversation between a trial judge and a juror
does not constitute a deprivation of a
constitutional right"); see also Widgery, 778
F.2d at 330 ("[o]nly a trial fundamentally unfair
in light of the entire proceedings violates the
open-ended aspect of the constitutional
protection. Widgery’s trial was generally
conducted according to the rules, and a single
glitch in a lengthy trial does not create
constitutional error.").
In any event, we need not resolve this issue
because Ellsworth’s characterization of the
Indiana Appellate Court’s decision is obviously
misconstrued to the benefit of the defendant. The
Indiana Appellate Court noted several times that
an inference of prejudice arises from an ex parte
communication. The court wrote that "[a]n
inference of prejudice arises from an ex parte
communication and this inference creates a

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rebuttable presumption that an error has been
committed. Rebuttal of the inference deems the
error harmless." Later the court reiterated this
statement, noting that "[a]lthough the judge’s
response to the notes creates a rebuttable
presumption that error was committed, the judge’s
communication had no effect upon the jury’s
ability to come to a fair determination of the
case" (emphasis added). Thus, the Indiana
Appellate Court did (whether or not it was so
required) give Ellsworth the presumption that the
ex parte communication was prejudicial.
Instead, the Indiana Appellate Court, after
weighing the facts and applicable case law,
determined that the error was harmless, noting
that the jury’s requests "do not indicate a
disagreement as to the testimony relating to the
exhibits . . . [and] the judge’s communication
had no effect upon the jury’s ability to come to
a fair determination of the case." This finding
is not contrary to the law as articulated by the
Supreme Court, as the Supreme Court has
consistently held that the government may show
that the ex parte contact was harmless. Rushen v.
Spain, 464 U.S. 114, 120 (1983); Remmer, 347 U.S.
at 229.
There is scarcely a lengthy trial in which one or
more jurors do not have occasion to speak to the
trial judge about something . . . . The lower
federal courts’ conclusion that an unrecorded ex
parte communication between trial judge and juror
can never be harmless error ignores these day-to-
day realities of courtroom life and undermines
society’s interests in the administration of
criminal justice.
Rushen, 464 U.S. at 118-19.
Accordingly, Ellsworth’s claim that the Indiana
Appellate Court’s decision was contrary to the
law as set forth by the United States Supreme
Court is without merit.
In the alternative, Ellsworth contends that the
Indiana Appellate Court’s finding that the trial
judge’s error was harmless involved "an
unreasonable application of clearly established
federal law." In support, Ellsworth cites to
Fillipon v. Albion Vein Slate Co., 250 U.S. 76
(1919). But Ellsworth’s reliance upon Fillipon is
misplaced. In Fillipon a judge, without informing
counsel, responded to a jury question regarding
the law of contributory negligence with an
instruction that erroneously stated the law. Id.
at 80-82. The facts of this case markedly differ.
Here, the jury requested for review several
police reports (which were not received in
evidence) and certain exhibits (which were). The

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judge merely informed the jury, correctly we add,
that the police reports were not received in
evidence and that the exhibits were. As such, the
judge did not provide the jury with any
additional instructions, much less direction as
to how to deliberate. Thus, the communication, in
addition to being factually accurate, was merely
routine. With regard to a criminal defendant’s
right to be present, the Supreme Court has
instead stated that a defendant suffers a
Constitutional violation "to the extent that a
fair and just hearing would be thwarted by his
absence, and to that extent only." Gagnon, 470
U.S. at 526.
Still, Ellsworth presses the argument that if
counsel had been made aware of the jury’s notes,
he could have suggested responses other than what
the judge provided; and if he had (assuming they
were an accurate application of the case law),
they would have benefitted his defendant client.
Therefore, Ellsworth argues he was prejudiced by
the trial judge’s failure to allow his counsel to
suggest alternate responses to the jury’s
questions. His argument is based on a foundation
of quicksand, and is nothing more than mere
speculation. Ellsworth does not suggest what this
response might have been--or how the failure to
give it prejudiced him. Further, he never
suggests in what way the jury’s deliberations
might have been altered--or even, as the Indiana
Appellate Court noted, that there was some
disagreement in the jury that would have been
resolved differently--if his counsel had been
allowed to give an alternate response to the
jury’s inquiry regarding the police reports. The
trial judge’s responses were accurate, and,
moreover, were standard responses to simple
questions.
In Verdin and Widgery, this court was
confronted with similar factual situations. In
Verdin we concluded that a state judge’s answer
to the jury’s question regarding verdict forms
was "a brief procedural remark that did not
mislead the jury . . . and that fairness and
justice were not thwarted by Mr. Verdin’s absence
at the exchange." Verdin, 972 F.2d at 1482
(citing Gagnon, 470 U.S. at 526). Thus, the ex
parte communication "did not have sufficient
prejudicial effect to rise to the level of a due
process violation." Id. Similarly, in Widgery we
concluded that a judge’s ex parte responses to an
accusation by a jury member of another juror’s
intoxication and a question about hypothetical
deadlock was a "single glitch in a lengthy trial
[that did] not create constitutional error."
Widgery, 778 F.2d at 330 (citing Gagnon, 470 U.S.
522). Ellsworth fails to distinguish how the
routine response given by the judge in this case

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is any different than those provided in Verdin
and Widgery, which we deemed harmless.
Accordingly, Ellsworth’s claim that the Indiana
Appellate Court’s unreasonably applied Supreme
Court precedent to determine that the trial
judge’s error was harmless is also without merit.
The district court’s denial of Ellsworth’s
petition for a writ of habeas corpus is
AFFIRMED.
/1 The Confrontation Clause of the Sixth Amendment
was made applicable to the states through the
Fourteenth Amendment in Painter v. Texas, 380
U.S. 400 (1965).

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