                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1184

Y USEF L ATEE W ILLIAMS,
                                            Petitioner-Appellant,
                               v.

M ICHAEL T HURMER,
                                           Respondent-Appellee.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
        No. 05 C 233—Aaron E. Goodstein, Magistrate Judge.



       A RGUED M ARCH 3, 2009—D ECIDED A PRIL 6, 2009




  Before B AUER, K ANNE, and W OOD , Circuit Judges.
  P ER C URIAM.       In March 1996 a Wisconsin jury
found Yusef Williams guilty of first-degree murder, and
the judge sentenced him to life imprisonment with the
possibility of parole after 45 years. After exhausting his
state remedies, Williams filed a pro se petition for a writ
of habeas corpus, 28 U.S.C. § 2254, arguing, among other
things, that his right to due process was violated when
a bailiff testified during his trial. The district court denied
2                                               No. 08-1184

his petition, but we certified his due-process claim for
appeal. We now affirm the judgment of the district court.
   At Williams’s trial the State presented two key wit-
nesses. The first, Angelo Tate, testified that he and Wil-
liams lived in the same duplex, where Williams sold
drugs from his basement apartment. On the evening of
October 26, 1995, Tate saw Williams shoot one of his
customers, Gary Cooper. Tate also testified that he saw
Williams remove Cooper’s body from the house. The
next day, Williams told Tate that he killed Cooper be-
cause of a dispute over drugs.
  Next, the State elicited testimony from Tate’s friend,
Lawanda Norris, who was visiting Tate the evening that
Cooper was shot. Norris testified that she went to the
basement—where Williams lived and sold drugs from—to
use the bathroom and saw Williams and another man
drag Cooper’s body outside and put it into a garbage can.
  The credibility of both witnesses was called into ques-
tion during their testimony. Both admitted to using
cocaine the evening that Cooper was shot. Tate testified
that he had twice been convicted of a crime, and Norris
admitted that she had six convictions. Furthermore, Tate
admitted that he had not reported the shooting to the
police and that he told the officers about it only after the
police began questioning him.
  Williams testified in his own defense. He denied killing
Cooper and said that on the night of the shooting, he was
staying with a friend, Debra Towns. Towns corroborated
Williams’s story. Williams also testified that Tate had lied
about the shooting because he was angry that Williams
No. 08-1184                                                  3

refused to give him free drugs and money. On cross-
examination, Williams reported that, on the evening before
his own testimony, he confronted Tate and asked him
why he lied on the stand. According to Williams, Tate
responded, “They made me say that.” Williams denied
threatening to kill Tate and said that the bailiff heard
their conversation that evening.
  The State called the bailiff, Robert Haack, as a rebuttal
witness. Haack testified that he had worked in the court-
room throughout the trial and that his responsibilities
included “[s]ecurity within the courtroom, and other
duties as assigned.” He said that, the night before, while
escorting Williams out of the courtroom, Williams saw
Tate and started yelling at him. Haack put Williams in a
room adjacent to Tate’s, and the rooms, which were
separated by a window pane, were locked. Haack said that
he saw Tate “cowering in a corner, fearing for his life.”
Haack then testified that he briefly left this area of the
building, and when he returned 15 minutes later, he
heard Williams scream, “Angelo, you are dead.” He said
that he did not hear Williams and Tate discuss whether
Tate had lied during his testimony.
   On direct appeal Williams’s appointed attorney filed a
“no-merit report” and sought to withdraw under Anders
v. California, 386 U.S. 738 (1967) and Wis. Stat. R. 809.32(1),
because she could not discern a nonfrivolous basis for
appeal. Williams filed a response, but the court agreed
with counsel, and so affirmed the judgment and allowed
counsel to withdraw. The court adopted counsel’s report
and supplemental report which analyzed, among other
4                                                 No. 08-1184

potential arguments, Williams’s contention that Haack’s
testimony violated his right to due process, but concluded
that the trial court’s decision to allow the testimony did
not violate Turner v. Louisiana, 379 U.S. 466 (1965).
  The Wisconsin Supreme Court denied Williams’s petition
for review, and Williams filed a petition for a writ of
habeas corpus raising 21 grounds for relief. A magistrate
judge, presiding by consent of both parties, denied the
petition, but we granted a certificate of appealability on
the issue whether Haack’s testimony violated Williams’s
due-process right.
  Our de novo review of the district court’s judgment is
governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). See Julian v. Bartley, 495 F.3d 487,
491-92 (7th Cir. 2007); see also 28 U.S.C. § 2254. A petitioner
is entitled to a writ of habeas corpus only where a state
court reaches a decision that is “contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.” 28
U.S.C. § 2245(d)(1); Simonson v. Hepp, 549 F.3d 1101, 1105
(7th Cir. 2008). A decision is contrary to clearly established
federal law where, as relevant here, a state court, con-
fronted with facts materially indistinguishable from
those previously before the Supreme Court, reaches a
different result. See Williams v. Taylor, 529 U.S. 362, 412-13
(2000); Corcoran v. Buss, 551 F.3d 703, 708 (7th Cir. 2008). A
state court unreasonably applies clearly established
federal law if it identifies the appropriate standard, but
unreasonably applies it to the facts. See Williams, 529 U.S.
at 413; Burr v. Pollard, 546 F.3d 828, 831 (7th Cir. 2008). A
No. 08-1184                                                 5

court’s application of Supreme Court precedent is reason-
able as long as it is “minimally consistent with the facts
and circumstances of the case.” Schaff v. Snyder, 190 F.3d
513, 523 (7th Cir. 1999); see also Simpson v. Battaglia, 458
F.3d 585, 592 (7th Cir. 2006).
  Williams argues that the Wisconsin appellate court
misapplied Turner v. Louisiana, 379 U.S. 466 (1965). The
defendant in Turner was convicted by a jury of murdering
his victim during a robbery. 379 U.S. at 466. The two
key witnesses at Turner’s trial were the deputy sheriffs
who investigated the crime. Id. at 467. They testified
about their investigation and Turner’s confession. Id.
During the three-day trial, the members of the jury were
sequestered, and various deputy sheriffs—including the
two star witnesses—accompanied the jurors everywhere
they went. Id. at 467-68. The deputies ate with the
jurors, had conversations with them, and ran errands
for them. Id. at 468. The Supreme Court held that the
deputies’ testimony subverted the basic guarantees of
trial by jury. Id. at 473. The Court based its analysis on two
factors: the nature of the deputies’ testimony and the
association between the jurors and the deputies. First, the
Court noted that the deputies’ testimony “was not con-
fined to some uncontroverted or merely formal aspect of
the case for the prosecution.” Id. In contrast, “the credibil-
ity which the jury attached to the testimony of these two
key witnesses must inevitably have determined” Turner’s
guilt. Id. And second, the Court found significant that the
deputies’ interaction with the jurors was not merely “a
brief encounter,” but rather was “a continuous and inti-
mate association throughout a three-day trial.” Id. The
6                                              No. 08-1184

Court concluded that the deputies’ relationship with the
jury “could not but foster the jurors’ confidence,” which
violated due process because “Turner’s fate depended
upon how much confidence the jury placed in these two
witnesses.” Id. at 474.
  We turn first to Williams’s assertion that the decision
of the Wisconsin state court is contrary to federal law
and conclude that the facts of Williams’s case are not
“materially indistinguishable” from the facts before the
Supreme Court in Turner. In Turner, the record showed
substantial and detailed information about the bailiffs’
significant interaction with the jury. In particular, the
bailiffs ate with, transported, conversed with, and ran
errands for the jurors who were sequestered—and
thus entirely dependent on the bailiffs—during a three-
day trial. The record here, however, is largely silent
about the type and extent of Haack’s interaction with the
jury. Haack testified that he had been working in the
courtroom throughout the trial. But, when asked about
his duties during the trial, Haack made no mention of
the jury and testified only that he performed “[s]ecurity
within the courtroom, and other duties as assigned.”
  Furthermore, the bailiffs in Turner, testifying in their
capacity as investigating officers, provided crucial testi-
mony—including testimony about the defendant’s con-
fession—that directly showed his guilt. By contrast, Haack
testified in rebuttal only after Williams mentioned that
Haack saw an interaction between Williams and one of
the State’s key witnesses. Moreover, Haack’s testimony
involved his observations about Williams’s behavior
No. 08-1184                                                    7

during trial and did not go to whether Williams murdered
Cooper.
  Williams also urges us to compare his case to Gonzales v.
Beto, 405 U.S. 1052 (1972). In Gonzales the Supreme Court,
in a memorandum decision citing Turner, summarily
reversed the judgment upholding the defendant’s con-
viction where a bailiff testified as the prosecution’s key
witness. Gonzales, 405 U.S. at 1052-53. Williams relies on
the reasoning in Justice Stewart’s concurring opinion. But
Justice Stewart’s opinion was joined by only two other
justices, id. at 1052, while two justices dissented, id. at 1056,
and the remaining four justices did not discuss their
reasons for remanding the case. We cannot know on
what grounds these four justices decided the case, there-
fore, Gonzales does not provide a statement of clearly
established federal law for purposes of § 2254(d)(1). See
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (explaining
that “ ‘the holdings, as opposed to the dicta’” of Supreme
Court decisions make up “clearly established” law)
(quoting Williams, 529 U.S. at 412); Hubanks v. Frank, 392
F.3d 926, 932 (7th Cir. 2004) (noting that dissenting and
concurring opinions do not constitute “clearly established”
law for purposes of § 2254(d)(1)); cf. Marks v. United
States, 430 U.S. 188, 193 (1977) (explaining that, when a
majority of the justices do not agree on a single rationale
for deciding a case, “the holding of the Court may be
viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds”)
(internal quotation marks and citation omitted).
  Nevertheless, Williams’s situation differs markedly
from that of the defendant in Gonzales. Like in Turner, but
8                                                No. 08-1184

unlike this case, there was evidence that the bailiff in
Gonzales had varied and close contacts with the jurors—he
escorted them in and out of the courtroom, accompanied
them to lunch, engaged in conversations with them,
brought them drinks during their deliberations, and even
stepped down from the witness stand during his testimony
to escort them to the jury room. Gonzales, 405 U.S. at 1052-
53. And, similar to the bailiffs in Turner, the bailiff in
Gonzales was the State’s key witness, and testified re-
garding his role—performed in his capacity as a deputy
sheriff investigating the crime—in obtaining the defen-
dant’s confession. Id. at 1052.
  Williams next argues that the Wisconsin appellate court
unreasonably applied the rule laid out Turner. The Su-
preme Court has explained that “the official character of
the bailiff—as an officer of the court as well as the
State—beyond question carries great weight with a jury.”
Parker v. Gladden, 385 U.S. 363, 365 (1966). And Williams
contends that Turner stands for the proposition that a
defendant’s due-process right is violated when a bailiff
testifies for the State unless “the bailiff’s contact with the
jury is brief or the bailiff’s testimony relates only to a
formal or undisputed aspect of the trial.” We agree
with Williams that this reading of Turner is plausible,
and might even be correct, but the state court’s more
limited interpretation is also reasonable.
  First, Williams contends that the court misapplied
Turner because it concluded that the level of interaction
between Haack and the jurors was insufficient to raise due-
process concerns. Williams argues that the court should
No. 08-1184                                                   9

have concluded that, as bailiff, Haack “maintained a
continuous association with the jury,” and that, even if
Haack’s association with the jurors was not “continuous,”
it was more than de minimis, which, he contends, is all
Turner requires. As evidence of the extent of Haack’s
association with the jurors, Williams cites only Haack’s
testimony that he was present in the courtroom through-
out the trial and was in charge of security and other duties
that he was instructed to perform. Nevertheless, Williams
urges the court to conclude that because Haack was
present through trial, his interactions with the jury
while performing his “routine duties” were significant
enough to raise a constitutional issue under Turner.
  This is one possible interpretation of Turner. But the
state court’s reasoning—that Turner requires “substantial
contacts” between the testifying bailiff and the jurors, and
that the record contained no evidence of this level of
interaction—is also reasonable. The Court in Turner
explained, “We deal here not with a brief encounter, but
with a continuous and intimate association” between the
testifying bailiffs and the jurors. Turner, 379 U.S. at 473; see
also Gonzales, 405 U.S. at 1056 (observing that the bailiff’s
“extended” association with the jurors was more than
de minimis). The Court did not say how many or what
types of associations would trigger due-process concerns,
but it relied on evidence of the extensive interactions
among the testifying bailiffs and the jurors. See Turner, 379
U.S. at 467-68. Turner does not address the case where, as
here, there is little evidence of the bailiff’s actual contacts
with the jurors or even where the bailiff performs only his
routine duties. Thus, the concern underlying the decision
10                                               No. 08-1184

in Turner—that the jurors’ close relationship with the
bailiff might unduly put a thumb on the prosecution’s
side of the scale—is not present here. Turner lends itself
to a range of reasonable interpretations, including the
one adopted by the Wisconsin appellate court.
  In support of his argument, Williams calls our attention
to Agnew v. Leibach, 250 F.3d 1123 (7th Cir. 2001). In that
case, like this one, the record did not reveal the extent of
the relationship between the testifying bailiff and the
jurors. Agnew, 250 F.3d at 1132. We nonetheless con-
cluded that the relationship “was not a chance encounter
on an elevator but was a continuous association,” which
was “enough to infect the proceedings with extreme
prejudice even in the course of a one-day trial.” Id.
Agnew, however, was decided under the law for re-
viewing habeas-corpus petitions in place before AEDPA,
when the federal courts “disregarded the state court’s legal
conclusions and reached independent judgments on the
issues presented to them.” Id. at 1128. Williams filed his
petition after AEDPA went into effect. Thus, the pertinent
question here is not whether we disagree with the state
court’s interpretation of Supreme Court precedent, but
rather whether the state court’s application of the prece-
dent was unreasonable. See Lockyer, 538 U.S. at 75-76; Schaff,
190 F.3d at 522.
  Under AEDPA, decisions of courts of appeal, while not
controlling on what constitutes “clearly established fed-
eral law,” see Schaff, 190 F.3d at 522; Yancey v. Gilmore, 113
F.3d 104, 106 (7th Cir. 1997), are instructive on whether a
particular application of federal law is reasonable, see
No. 08-1184                                              11

Abu-Jamal v. Horn, 520 F.3d 272, 312 (3d Cir. 2008); Stewart
v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007); Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003). The interpreta-
tion that we adopted in Agnew, however, is not the only
reasonable interpretation. See Serrano v. Fischer, 412 F.3d
292, 299 n.3 (2d Cir. 2005) (noting that state courts may
come up with reasonable interpretations of Supreme
Court precedent that differ from those of federal courts
of appeal). And, for the reasons we provided above, the
Wisconsin appellate court’s decision that Haack’s interac-
tion with the jurors was not substantial enough to raise
due-process concerns was reasonable.
  Moreover, the state court did not unreasonably apply the
second prong of the Turner analysis. Williams argues that
to meet Turner’s second prong, he needed to establish only
that the bailiff testified to disputed issues that were
more than mere formalities. To support his contention,
Williams points to the Court’s statement in Turner that the
testimony of the bailiffs “was not confined to some
uncontroverted or merely formal aspect of the case for the
prosecution,” Turner, 379 U.S. at 473, and notes that the
subject of Haack’s testimony—whether Williams threat-
ened to kill Tate—was a disputed issue at trial, that
Haack’s testimony could have convinced the jury that
Williams had the propensity to commit murder, and that
Haack’s testimony undermined Williams’s credibility.
  But, again, this is not the only reasonable way to inter-
pret Turner. The testifying bailiffs in Turner were the
officers who investigated the crime as well as the principal
witnesses on the issue of the defendant’s guilt. See Turner,
12                                               No. 08-1184

379 U.S. at 467, 473. The Court recognized that “the
credibility which the jury attached” to their testimony
“must inevitably have determined whether” the
defendant was guilty. Id. at 473. The Wisconsin appellate
court found this reasoning persuasive and noted that
unlike the officers in Turner, “Haack was not an eyewit-
ness or an investigating officer and testified to a
peripheral matter.” To be sure, Haack’s testimony
might have damaged Williams’s credibility and was more
than a formality, but the Wisconsin appellate court’s
decision to read Turner narrowly to apply to cases
where the bailiff testifies only to matters directly proba-
tive of the defendant’s guilt was “at least minimally
consistent with the facts and circumstances” of Turner.
Schaff, 190 F.3d 513; see also Gonzales, 405 U.S. at 1503
(finding due-process violation where testifying bailiff
was “the key prosecution witness” and the case turned
“largely” on the jurors’ assessment of the bailiff’s credibil-
ity); Agnew, 250 F.3d at 1135 (reversing denial of habeas-
corpus petition where bailiff’s testimony regarding de-
fendant’s admissions “constituted substantive evidence”
of the defendant’s guilt).
  We therefore AFFIRM the judgment of the district court.




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