Lead Opinion
OPINION
Warden Michael Martel appeals the district court’s grant of habeas relief under 28 U.S.C. § 2254 to Petitioner-Appellee Marvin Walker. During just one month in 1979, Walker committed two armed robberies in San Jose, California, in which he shot and attempted to kill'four people. He shot most of the victims in the head, killing a 15-year-old boy and permanently injuring the three remaining individuals. Three weeks after the second robbery, Walker sold the murder weapon to a police officer who had been working undercover purchasing stolen property. Walker told the officer that the gun had been in his possession for months, had made him a lot of money over the last six months, and “had done a murder.”
He was convicted of first-degree murder, three counts of assault with intent to commit murder and other charges, and sentenced to death in 1980. During his trial, the sheriffs office placed a knee restraint on one of Walker’s legs under his pants. It is undisputed that several members of the jury became aware of it. Jurors noticed the restraint during trial because it made Walker limp to and from the witness stand when he testified during both the guilt and penalty phase. No record was made of the need for such a restraint, and Walker’s lawyer made no
Claims of ineffective assistance of counsel raised in the state habeas petitions were denied without explanation. In his subsequent federal habeas petition, Walker claimed that defense counsel was ineffective for failing to object to the knee restraint. The district court agreed, holding that the state court unreasonably applied Strickland v. Washington,
Because the California Supreme Court did not provide an explanation for its denial of Walker’s ineffective assistance of counsel claim, our obligation under the Antiterrorism and Effective Death Penalty Act of 1996 is to determine whether the state court decision, even sans explanation, was “contrary 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); Harrington v. Richter, — U.S. -,
Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.
Id. at 786 (emphasis added). For the following reasons, we hold that the state court reasonably could have applied Strickland to decide that Walker was not prejudiced by the knee restraint.
• First, although members of the jury became aware of the knee brace, it was at all times worn under Walker’s clothing and was relatively unobtrusive compared to unconcealed leg irons, handcuffs secured to belly chains, gags, and being bound to a chair, as occurred in other cases.
• Second, because Walker’s hands were unencumbered, the restraint here signified custody status rather than dangerousness, and the fact that Walker was in custody during the trial was something he himself voluntarily introduced into evidence.
• Third, the judge indicated to the jury that the brace was a more-or-less routine measure taken by the sheriff for all persons in custody. The judge’s comments went a long way toward dispelling any impression that Walker posed a unique danger in court.
• Fourth, the evidence of Walker’s guilt was strong. He was identified by two of the survivors of the shootings. These identifications were powerfully corroborated by his attempt to sell the very weapon used in both episodes to an undercover police officer less than three weeks after the second robbery.
• Fifth, the jury acquitted Walker of assaulting with intent to murder a customer who entered the store while the robbery was in progress. This is compelling proof that the jury could evaluate the evidence fairly and was not blinded by the brace.
This is true for the penalty phase as well. The magnitude of Walker’s crimes was enormous. During the first armed robbery, he shot three store employees, two of them execution-style in the head, and killed a 15-year-old. During the robbery, Walker said he wanted the victims killed to eliminate any witnesses. In the second incident, Walker sexually molested a 20-year-old woman at gunpoint by ripping open her blouse and touching her breasts, then pistol-whipped her approximately 12 times, and shot her twice, once in the eye and once through her left ear. She lost her eye and the hearing in one ear, and suffered a fractured neck. In the face of these horrendous crimes, Walker’s mitigation evidence consisted of the fact that he was 19 years old at the time of the offenses, had no prior criminal record, had done yard work for a church secretary in the past, gave a friend rides to work, provided financial and emotional support to his mother and sister, and was loved by them and his girlfriend.
The California Supreme Court did not unreasonably apply or act contrary to Supreme Court law in deciding, as it necessarily did, that the restraint Walker was required to wear under his pants during the penalty phase was trivial in comparison to the magnitude of his crimes, taking into account the nature of the mitigation evidence presented to the jury. Put another way, we cannot say that the California Suрreme Court was unreasonable in deciding that it was not reasonably probable that Walker would have been spared the death penalty had his counsel objected to the knee restraint.
We reverse the district court’s granting of the writ, and we remand for the district court’s consideration of the other claims it held in abeyance.
I. Factual Background
A. The Crimes
1. August 6, 1979 Incident
We take the facts of Walker’s crimes and the ensuing investigation mainly from the California Supreme Court’s 1989 opinion affirming Walker’s conviction on direct appeal. Our “review is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, — U.S. -,
On August 6, 1979, Walker entered Dan’s Bottle Shop in San Jose, California, accompanied by another individual. In the store were co-owner Jerry Romero and two young employees, Joe Vasquez and Andy Zamora. Walker drew his gun, announced that he was holding up the store, and marched Romero, Vasquez, and Zamora at gunpoint into the back room. Walker ordered Romero to open the safe. When Romero replied that he did not have the combination, Walker grabbed a claw hammer and threatened to strike Romero with it. Walker’s companion told him to “wait a minute,” searched Romero’s wallet unsuccessfully for the combination, and then told Walker, “He doesn’t know it, just forget it.” Walker’s cоmpanion returned Romero’s wallet.
The front door bell then sounded, indicating that a customer had entered the store, and Walker instructed Vasquez to
Walker proceeded to march the staff into the back room again. Walker handed his gun to his companion, took a nearby wine bottle in hand, and struck Romero across the forehead with it. As Romero fell, Walker struck him with a second wine bottle. Romero lay on the floor and pretended to be dead. Walker then lifted Romero’s wallet, felt Romero’s back, and stated “We don’t have to worry about this guy any more.”
Walker next ordered Vasquez and Zamora on their knees, and they complied. Romero heard them crying and pleading for their lives. Three shots were fired in quick succession. Neither Romero nor Zamora observed who fired the shots. As Walker and his companion fled, Romero heard the customer bell and the sound of a bottle breaking in the front of the store. He rose, saw the two boys lying in their own blood, walked to the rear door, аnd witnessed Walker get into a car in which his companion was already seated.
Vasquez died of a .32 caliber gunshot wound which entered his forehead and exited through the back of his head. The chief medical examiner testified for the prosecution that the entry and exit wounds were consistent with the gun pointing down at the victim. Zamora was shot in the head but survived. Romero was shot in the abdomen; the bullet ricocheted off his hip and passed through several major organs before lodging in his chest. At the time of trial, the bullet remained lodged in Romero’s chest.
Romero testified that he was familiar with firearms. He described the weapon used by the shooter as smaller than a .38. Romero identified the murder weapon in court as similar to the gun Walker carried. Police recovered several .32 caliber shell casings from the robbery scene.
Romero provided detailed descriptions of both robbers to the police, including height, weight, hair and eye color, skin tone, hats, and clothing. He described the robber with the gun as 5 feet, 10 or 11 inches tall, with 2-to-3 inch hair braids, no glasses, a moustache, spotty facial hair, and a nose that had a lump and was out of proportion to his face. He was wearing a cowboy hat, a beige zippered jogging top with dark brown rings on the shoulders and armpits, a tank top t-shirt, pants with a string, and dirty high-top athletic shoes. Romero gave a similarly detailed description of the taller accomplice. Police created composite sketches of the robbers based on Romero’s description. The composite drawn from Romero’s description of the robber with the gun was admitted into evidence for the jury to consider.
2. September 5, 1979 Incident
The second incident occurred late in the evening on September 5, 1979. Walker entered a medical building in San Jose and pointed a gun at 20-year-old Rose Olveda. He ordered Olveda to open the safe, but she responded that there was no safe on the premises. Walker then ordered her into the back room, where he demanded her money and car keys. Olveda handed him $11 and the keys. He told her to lie down so he could tie her up, but could not find anything to use. Walker ordered her to stand up again, ripped open her blouse, and touched her breasts. He then pistol-
Olveda described Walker as black; around 5'9", about two inches taller than herself; slender; and wearing Adidas-type athletic shoes, a t-shirt, pants, a ski cap, and a white cloth tied on his face. Police recovered several .32 caliber shell casings from the scene.
3. The Investigation
Within five hours of the second incident, police located Ms. Olveda’s car parked close to Walker’s sister’s residence on Carmen Court. When he was arrested, Walker told police he was living on Carmen Court.
That same year, Officer Evan Maclvor had been conducting an undercover sting operation in San Jose, impersonating a businessman who bought stolen property. On September 26, 1979, just three weeks after the robbery and shooting of Rose Olveda, Walker contacted Maclvor and sold him a .32 caliber semi-automatic pistol. He informed Maclvor that the gun belonged to him, but that he had purchased a newer .22 caliber automatic gun, so he did not need it anymore. Maclvor purchased the gun for $25 and turned it over to the police department crime lab.
Maclvor met Walker again on September 28, 1979, and told him that the gun Walker sold him did not work. Walker responded that the gun did in fact work and demonstrated how to use it, explaining that he needed to “release the trigger after firing each round” because it was semi-automatic. He added that it had helped him make a lot of money over the prior six months. Walker added that Maclvor should not get caught with it in his possession, because it “had done a murder.” When pressed, Walker attributed this murder to a friend and prior owner whо was now serving time in Soledad prison.
When they next met on October 2, 1979, Maclvor secretly recorded their conversation. Walker informed Maclvor that the gun had been used to commit a murder in Salinas and that the perpetrator was serving time for the offense. When Maclvor asked why he had held on to the gun for as long as he did, Walker replied that the murderer asked him to dispose of it. He had picked up the gun, oiled it down, and buried it in the ground.
B. Trial
The state charged Walker with first-degree murder of 15-year-old Vasquez; assault with intent to murder Romero, Zamora, and Guerrero; robbery of Romero; assault with intent to murder Olveda; robbery of Olveda; and theft of Olveda’s vehicle. The state alleged that Walker personally used a firearm for all of the offenses and alleged one special circumstance under the 1978 death penalty law, that the murder was committed during a robbery.
1. Guilt Phase
The prosecution primarily relied on two eyewitness identifications, the testimony of an acquaintance of Walker, a neighbor’s testimony, and the comparative analysis of
Five hours after the assault, police found Olveda’s car in a carport near Walker’s sister’s residence on Carmen Court. Upon his arrest, Walker told police he was living on Carmen Court. Walker’s brother, Johnnie, testified that Walker lived with their sister on Carmen Court, their mother, and Walker’s girlfriend, Denise Jackson, in 1979. Johnnie admitted that he told the police that he had seen his brother with the gun a few times in early August 1979.
Additionally, a neighbor of the store, Harold Matlock, testified that he was on his third-floor apartment balcony around 10:30 p.m. or 11:00 p.m. when he heard what sounded like a firecracker. He leaned over his balcony and looked down to see two black men exit the liquor store and drive away. He saw the car only from the top and described the car to police as a heavily oxidized, rust or tan, 1965 or 1967 four-door Chevy Nova with a 4 and an 8 in the license plate number and a rear dent. Matlock later identified Walker’s car as similar to the car he had seen. Walker’s car, in actuality a 1967 Rambler, had the same body style, oxidized color, and rear dent as the vehicle Matlock described to the police. Walker’s license plate also contained both numbers provided by Matlock, 4 and 8. However, Walker’s car had four doors, not two.
Enrique Guerrero, the customer, testified that he entered the store, was struck on the back of his head, and did not see anything or anybody. He awoke on the floor and staggered out of the store to his friend’s car. He was later taken to the hospital with a cracked skull.
Finally, a police department criminalist analyzed the spent .32 caliber bullet casings recovered from both crime scenes and was able to positively identify the gun Walker sold to Maclvor as the gun used to shoot the victims at the liquor store and to shoot Rose Olveda. The criminalist also corroborated Maclvor’s assertion that there was no evidence that the gun had been buried or oiled down. Walker had told Maclvor that a friend in prison at Soledad had killed someone with the firearm eight months earlier, but the prosecution established at trial that there was no homicide involving a .32 caliber gun in Monterey County between October 1978 and May 1979.
At the outset of the trial, Superior Court Judge John Shatz stated that he has never found the need to shackle any defendant and asked Walker if there was any reason to have him shackled. Walker answered “No,” and the trial proceeded. The Sheriffs office nevertheless placed a knee restraint on Walker under his clothing for the entirety of the trial, from the first day of voir dire through the completion of capital sentencing. Walker and the state have stipulated that “[t]he shackle was a heavy plastic leg-locking device secured on either of Mr. Walker’s legs, underneath his trousers.” The parties stipulated that Walker would have testified that:
The shackle was a solid piece of molded plastic, approximately 2 feet long and 1/8" to 1/4" thick, weighing about three pounds. The shackle was slit open on one side and fit to his leg by pulling the open side apart and placing it around his leg from the back so that the open sides abutted his knee-cap. The shackle was secured via two large Velcro straps, one above and one below the knee.
It is undisputed that the trial court never made any finding on the record of the necessity of Walker’s shackling. It is also undisputed that the jury was aware of it.
During the prosecution’s cross-examination of Walker’s girlfriеnd, Denise Jackson, the prosecutor asked Jackson whether Walker had a limp when she visited with him during August and September 1979. The witness stated that Walker did not limp as he was now doing at trial: “It wasn’t like the brace. The brace is the reason he limps in Court.” In response to the prosecutor’s follow-up question, she noted that his limp in court was not due to a medical condition. Defense counsel objected, and the judge sought to clarify the testimony for the jury’s benefit, by posing the following to the witness:
You’re talking about the knee restraint that the Sheriff puts on persons who are in custody? Is that what you’re referring to?
Jackson answered in the affirmative, and the cross-examination continued. It is undisputed that Walker’s counsel never objected to his client’s shackling or the failures of the trial court to hold a hearing on the subject, make any determination of its necessity on the record, or give curative instructions to the jury or otherwise minimize the effect of the shackling, beyond his question to Denise Jackson.
The trial spanned 11 days of a two-and-a-half week period, not counting voir dire, before it went to the jury. The jury deliberated for about 35 hours over the course of five days before returning a verdict. At the end of the first day of deliberations, the jury indicated that it was looking at only one count. In the afternoon on the second day, the jury asked the court to reread Romero’s testimony, the last part of Walker’s testimony, and the reasonable doubt instruction. The jury then expressеd confusion regarding the law for degrees of murder, felony murder, and personal use of a firearm. Those instructions were re-read to the jury.
On the afternoon of the third day of deliberations, the jury asked the court to re-read Romero’s testimony from the point he rose after the shooting until he arrived at the neighboring apartment, and to reread the instructions for assault and use of
The next morning, the jury informed the judge that it had decided Counts One through Five (the charges arising out of the first incident), but not Counts Six through Eight (the charges arising out of the second incident). The jury asked the court to re-read Olveda’s testimony. The next afternoon, the jury reached its verdicts on all of the charges.
As to the first incident, the jury found Walker guilty of first-degree murder for the murder of 15-year-old Vasquez, in addition to two counts of assault with intent to commit murder for Zamora and Romero, and the robbery of Romero. The jury found that Walker personally used a firearm in the commission of each offense. The jury also found one death penalty special circumstance: the murder was committed while Walker was engaged in the commission or attempted commission of a robbery. The jury acquitted Walker of the assault with intent to murder Enrique Guerrero, the customer who had entered the store during the robbery and been struck over the head with a bottle. As to the second incident involving Rose Olveda, Walker was found guilty of assault with intent to murder, robbery, and personal use of a firearm in the commission of those offenses, as well as the theft of Olveda’s vehicle.
2. Penalty Phase
The prosecution and defense stipulated that the evidence from the guilt phase could be considered by the jury in the penalty phase as well. Only a few additional witnesses testified.
The state’s witnesses testified to two violent threats Walker had made. An Officer Nichols, a witness for the state, testified that he intercepted a conversation between Walker and his cousin Lawrence Martin on September 26, 1979, while they were in police custody detained on suspicion of committing a burglary. Walker was heard telling Martin that he would have to get the gun from Maclvor and that Maclvor would have to be killed. Officer Maclvor testified that, after the preliminary hearing on October 30, 1979, Walker walked by him and a deputy district attorney, and stated, “The hell with getting a cop. I’ll get me a D.A.”
Several family members and friends testified on Walker’s behalf. Walker’s mother stated that Walker, then 21 years old, had grown up in a poor family with seven brothers and sisters. She testified that Walker worked and helped to support the family. His sisters testified that Walker had helped them financially and emotionally in the past. They all asked that he be spared the death penalty. Additionally, a church secretary testified that Walker had done some yard work for her in the past. One of Walker’s friends testified that he sometimes drove her to work. Defendant’s girlfriend testified that he had assisted her emotionally and that she loved him and did not want him to die. Walker testified again and denied threatening the officer or the deputy D.A. He maintained his innocence.
The jury deliberated for approximately ten hours over a period of three days and ultimately determined that Walker should receive the death penalty for Count One, the murder of 15-year-old Vasquez.
On direct appeal, the California Supreme Court affirmed Walker’s convictions and sentence. As for the matter of the knee brace, the court held that the issue had been waived because Walker’s counsel had not objected below. Walker,
Walker subsequently filed his first habeas petition in state court. On September 30, 1992, the California Supreme Court denied his ineffective assistance of counsel claims “on the merits,” but without explanation. Citing its 1989 opinion, it reaffirmed that the shackling claim had been waived for failure to object at trial. The court noted further that all of the facts underlying the shackling and ineffective assistance of counsel claims were known or l’eadily available to Walker and his counsel at the time of thе direct appeal. The Supreme Court denied his petition for a writ of certiorari in March 1993. Walker v. California,
Walker filed his second state habeas petition on June 5, 1998. On December 22, 2004, the California Supreme Court denied this petition “on the merits for failure to state a prima facie case for relief’ and “as untimely.” It did not provide any further explanation.
III. Federal Habeas Litigation
Walker had first filed a federal habeas petition on May 20, 1997, but it was deemed unexhausted. Walker,
Claims 2(c) and 9 are before us on appeal. Claim 2(c) is the ineffective assistance of counsel claim based on trial counsel’s failure to object to Walker’s shackling, during either the guilt or penalty phase. Claim 9 is the stand-alone shackling claim. The district court reserved judgment on several other claims pending possible reversal of its decision on claims 2(c) and 9 and entered a Federal Rule of Civil Procedure 54(b) judgment granting the writ as to those claims.
In order to avoid the necessity of an evidentiary hearing on the shackling and ineffective assistance of counsel claims, the state and Walker submitted a “stipulated set of facts and evidence, including a stipulation as to witness testimony.”
The district court first held that the California Supreme Court was objectively unreasonable in concluding that Walker’s trial counsel’s performance was not constitutionally deficient when he failed to object to the brace. Walker,
The district court then moved to the second prong of the Strickland test and concluded that the California Supreme Court was objectively unreasonable in concluding that trial counsel’s deficient performance did not prejudice the outcome of the guilt and penalty phases of Walker’s trial. Id. at 1049. As to the guilt phase, the court evaluated the record against the four factors for determining whether shackling unconstitutionally prejudices a defendant. Dyas v. Poole,
The district court applied the Dyas factors to the penalty phase as well and granted Walker habeas relief. Id. at 1052-53. The court found that Walker’s “violent nature and propensity for future violence” were directly at issue in the jury’s consideration of aggravating evidence the prosecution presented, namely Walker’s alleged threats against the deputy district attorney and Officer Maclvor. Id. at 1052. Additionally, one juror assumed that Walker was wearing the restraint because he had threatened a deputy district attorney. Id. at 1053. The court also found that the length of the jury’s deliberations (ten hours over three days) suggested that the jury did not believe the case was “clear-cut” and that the mitigating evidence introduced by the defense made the case a “close call.” Id.
As to Claim 9, the stand-alone shackling claim, the district court ruled that there were cause and prejudice to review this procedurally defaulted claim on the merits, even though Walker’s counsel did not object at trial and failed to raise the issue on direct appeal until the 1989 rehearing. See Sawyer v. Whitley,
The warden appealed the district court’s decision, arguing that the California Supreme Court reasonably decided there was no Strickland prejudice as to either the guilt or penalty phase.
IV. Jurisdiction
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s grant or denial of a petition for writ of habeas corpus de novo. Fernandez v. Roe,
V. Analysis
A. Applicable Legal Standards
The Supreme Court made clear in Harrington,
Under 28 U.S.C. § 2254(d)(1), a state court’s decision is “contrary to ... clearly established Federal law,” as determined by the U.S. Supreme Court, “if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts.” Bell v. Cone,
As previously noted, the first claim at issue on appeal (Claim 2(e)) is an ineffective assistance of counsel claim for failure to object to Walker’s shackling, not a due process claim based on the shackling itself.
“To establish ineffective assistance of counsel ‘a defendant must show both deficient performance [by counsel] and prejudice.’ ” Premo,
To establish deficient performance, a person challenging a conviction must show that “counsel’s representation fell below an objective standard of reasonableness.” [Strickland,]466 U.S. at 688 ,104 S.Ct. 2052 . A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. Id., at 689,104 S.Ct. 2052 . The challenger’s burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id., at 687,104 S.Ct. 2052 .
*941 With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694,104 S.Ct. 2052 .
Richter,
The due process shackling cases cannot resolve this issue. First and foremost, as noted, we are bound to apply Strickland prejudice analysis, not the prejudice standard from clearly established shackling cases at the time of the California Supreme Court’s 2004 decision on Walker’s second state habeas petition. Second, Deck v. Missouri,
B. Application of AEDPA and Strickland to Trial’s Guilt Phase
Contrary to Walker’s contentions, our task is to decide whether the California Supreme Court unreasonably applied the Strickland standard. Because counsel’s deficient performance is not raised by Warden Martel on appeal, deficient performance is a given and we focus solely on the Strickland prejudice prong, i.e. whether it was reasonable for the California Supreme Court to conclude that, even if Walker’s trial counsel had objected to and secured the removal of the shackle,
In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different.
Richter,
First, while our review is confined to the separate and distinct prejudice inquiry from Strickland, in order to assess what effect counsel’s failure had, we necessarily must evaluate the restraint itself and what role, if any, it may have played in driving the jury’s verdict. Not all restraints are created equal. The molded-plastic brace placed on Walker’s leg underneath his clothing was not a ball and chain, handcuffs secured to a belly chain, a gag, or the like. Although the jury became aware of the restraint, it was relatively unobtrusive. The jury really noticed the restraint only when it restricted Walker’s movement to and from the witness stand near the end of the defense’s case. Additionally, it only suggested Walker’s custody status, not a proclivity for violence, as his hands were unencumbered. We have held that “the greater the intensity of shackling and the chains’ visibility to the jurors, the greater the extent of prejudice.” Spain v. Rushen,
Second, during Ms. Jackson’s testimony, the trial judge effectively communicated that this was a more-or-less routine custody measure employed by the Sheriff’s office. A reasonable juror would have taken from his comments that the knee restraint’s purpose was to facilitate custody,
Third, the evidence upon which Walker was convicted was robust. “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland,
The district court relied heavily on the length of the jury’s deliberations, but the 35 hours they spent considering the testimony of 26 witnesses spanning two-and-a-half weeks demonstrates only that the jury carefully considered each of the charges. The jury was tasked with considering eight separate criminal charges involving multiple victims of two robberies, different degrees of homicide, “special circumstance” allegations for multiple charges, voluminous testimony, jury instructions it found confusing, and complicated verdict forms. The jury went through each element of each charge, taking defense counsel’s advice. As it considered each charge, the jury asked the court to re-read the instructions and testimony relevant to the charge. The California Supreme Court reasonably could have inferred that this conduct was consistent with diligence and care, not an unambiguous sign that it was a close case.
Fourth, the jury acquitted Walker of assault with intent to murder Guerrero. This telling fact unmistakably demonstrates that the jury was able to analyze the evidence fairly and was not blinded by the brace on Walker’s leg.
The California Supreme Court reasonably concluded that, even if Walker’s counsel had objected to the restraint and even if the shackle had been removed for trial, it is not reasonably likely that the outcome would have been different.
C. Application of AEDPA and Strickland to Trial’s Penalty Phase
The district court also erred in granting habeas relief as to the penalty phase, seemingly applying a de novo review of the Strickland prejudice analysis and then asserting that the California Supreme Court reached a patently unreason
Walker was convicted of unspeakably cruel acts, including a murder and assault with intent to murder, all in the course of two robberies. And, as previously discussed, the evidence upon which he was convicted was strong. In the first robbery, Walker executed a young man and attempted to kill two other individuals, who were left permanently injured, for $150 in cash and a wallet. In the second robbery, Walker brutally beat and then shot a young woman, permanently injuring her — he walked away with $11 and her car keys. The record establishes that Walker’s motive was to leave no witnesses. The jury also heard that Walker threatened the life of a deputy district attorney at a preliminary hearing. By way of mitigation, the jury heard that Walker was only 19 years old at the time of the crimes, had no prior criminal record, had done some yard work for a church secretary, and was loved by his mother, sisters, and girlfriend, to whom he provided financial and emotional support.
The California Supreme Court reasonably could have concluded that the jury’s knowledge of the knee restraint was trivial in relation to the magnitude of his crimes, given the caliber of the mitigation. It is hard to imagine that the additional quantum of information gained by noticing a custodial leg restraint worn under Walker’s clothing would have so altered the jury’s perception of the evidence that it would have changed the outcome.
D. Claim 9
Because the California Supreme Court reasonably could conclude that Walker failed to establish Strickland prejudice, there was no cause and prejudice to reach the due process shackling claim contained in Claim 9. See Sawyer,
The California Supreme Court necessarily decided that it was not reasonably probable that either Walker’s conviction or sentence would have turned out differently had counsel objected to the brace Walker wore beneath his clothing during the trial. Given whаt “prejudice” means in the ineffective assistance of counsel context, the strength of the evidence, the nature of the brace, the atrociousness of Walker’s crimes, and the quality of the mitigation, we cannot say that the state court’s decision was contrary to or an unreasonable application of United States Supreme Court law.
REVERSED AND REMANDED.
Notes
. The third shooting victim, Zamora, had a pre-existing mental disability, was barely able to testify, and was not asked to make an identification.
. In some places in the record the name is spelled "Cisco.”
. The district court erred in applying our Dyas multi-factor test as if it were binding, clearly established law applicable in an AED-PA case under 28 U.S.C. § 2254(d). It is not. In AEDPA cases, we apply the Supreme Court’s test, not our own. See Parker v. Matthews, — U.S. -,
. Typically, even if the requirements of 28 U.S.C. § 2254(d) are satisfied, habeas relief nevertheless requires a further showing of "actual prejudice.” Brecht v. Abrahamson,
. Claim 9 is the procedurally defaulted due process shackling claim. The district court reached the merits of this claim upon finding the California Supreme Court had unreasonably applied Strickland and, therefore, "cause and prejudice” excused the procedural default.
. It was also less draсonian than the shackles considered by our court in prior cases. Cox v. Ayers,
. This case is quite different from Roche v. Davis,
The Seventh Circuit explained that the issue in Roche was whether counsel was ineffective for failing to object to the shackling in addition to failing to ensure that the jury could not see the shackles. Id. at 483. In our case, Walker's defense counsel arranged for the jury to take its breaks and remain downstairs in the courthouse to prevent the jury from seeing Walker visibly handcuffed or restrained while he was being transported or taken into or out of the courtroom.
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the majority’s holding that the state court reasonably concluded that a jury would not have acquitted Walker if counsel for Walker had with success objected to the shackle. We presume that juries follow instructions that are given, see Weeks v. Angelone,
But I depart from the majority’s holding that the California Supreme Court reasonably decided that counsel’s deficiency did not prejudice Walker in the penalty phase. The reason here too rests on the premise that juries follow the instructions given them. See id. In the penalty phase, the jury was instructed that it could implement the mercy of life imprisonment rather than death based on mitigating evidence. Walker’s murder and his assaults were cruel and atrocious, but he had going for him in mitigation that he was only a teenager when the crimes were committed, had a clean record before then, and was good to his mother and sister. There is no way to know how a jury would have weighed such factors once told it had the power to permit or to preclude a death sentence, absent shackling that weighed on the jurors’ sensibilities. Stated another way, if counsel had competently fulfilled his duty to have his client unshackled when under the gaze of the jury, I have grave doubt about whether Walker still would have been sentenced to death. Because the jury’s role is relatively unconstrained in deciding whether to opt for mercy and life rather than the most extreme punishment of death, we cannot say that the shackling error of counsel did not cause prejudice to Walker.
The Supreme Court treats death differently by requiring courts to take a closer look at capital cases even where deference is generally given to trial-court decisions. Since reinstating the death penalty in Gregg v. Georgia,
The Court has also carved out groups of defendants who cannot constitutionally receive the death penalty. See Roper v. Simmons,
These death-penalty-specific rules are exceptions to the Supreme Court’s general principle that we take a deferential approach when evaluating a sentence imposed by a state court. See, e.g., Ewing v. California,
A defendant demonstrates a claim of constitutionally ineffective assistance of counsel when: (1) counsel’s efforts in defense are “outside the wide range of professionally competent assistance^]” and (2) the defendant thereby suffers prejudice. Strickland v. Washington,
An assumption of prejudice does not automatically spring from counsel’s deficiency because failure to object to shackling does not fall within the three categories on which prejudice is presumed. Smith v. Robbins,
Deck and the other shackling cases suggest that error resulting in a defendant’s visible restraint is serious when shackling is known to the jury. Deck,
In deciding that the state court was reasonable in finding that Walker was not prejudiced in either the guilt or penalty phase, the majority relies on three primary points: that the shackle itself was unobtrusive and nonprejudicial; that the trial judge dispelled the impression that Walker was a threat; and that the evidence against Walker was strong. I agree with the third point and conclude that it justifies the California Supreme Court’s finding as to Walker’s guilt. But I part company with the majority as to the penalty phase, concluding that the majority minimizes the prejudicial effect of the shackle and maximizes the ameliorative power of the judge’s instructions, and tolerates shackling absent justifications in a penalty-phase context where shackling is inherently unfair to a defendant’s legitimate prospect that a jury will show mercy and favor life over death.
The jury in this case was considering the fate of young adult who was only a teenager when he committed the crimes; a teenager with no prior criminal record, who grew up poor and gave financial and emotional support to his mother and sisters. People v. Walker,
Jurors were aware of the shackle when Walker approached the witness stand to testify as it prevented Walker from walking “normally.” Despite being underneath Walker’s pant leg, some jurors also saw the leg brace (or other forms of restraints that Walker periodically wore, such as handcuffs and a waist chain) apart from when Walker approached the witness stand. One juror testified that she assumed Walker’s movement was confined “because of what he was being held for” and said that “the shackles seemed like a short lead on a vicious dog.” The prosecutor drew attention to the shackle in recross examination of Walker’s girlfriend during the guilt phase. On one occasion, the bailiff “jump[ed] up behind [Walker] and subsequently handcuff[ed] him within view of the jury” after Walker adjusted the brace. The jury “looked scared as a result.” Because of these facts I do not share the majority’s opinion that the shackle was not obtrusive and prejudicial.
The judge did not specifically tell the jury how to perceive the shackle. Instead, the judge merely interrupted the testimony of Ms. Jackson, who had brought up the brace while being questioned by the prosecutor. The judge then asked, “You’re talking about the knee restraint that the Sheriff puts on persons who are in custody? Is that what you are referring to?” This passing statement is not the same as explicit instructions given in cases where courts have found that a judge’s statements cured the general prejudice of shackles. See Woods v. Thieret,
We cannot be absolutely certain how the presentation of an unshackled Walker would have affected the possibility that a jury would have shown mercy. But certainty is not required. Prejudice is shown where there is a reasonable probability that thе outcome would have been different. Strickland,
The majority correctly states that Walker bears the burden of proving that he was prejudiced by his attorney’s error such that “there was no reasonable basis for the state court to deny relief.” See Harrington v. Richter, — U.S. -,
We must consider whether the jury would have spared Walker had he not been shackled. In light of the mitigating evidence presented by Walker, I conclude that there is a real probability that absent the shackle’s presence, at least one juror would have concluded that Walker should not be put to death for his crimes committed when a teenager.
In Walker’s case, the death penalty was not a certainty. In the penalty phase alone it took the jury about 10.5 hours over the course of three days to reach their decision recommending that Walker be given death. This is relevant to the question of whether to grant relief and longer than the deliberations in several other penalty cases in which habeas relief was granted. Bean v. Calderon,
Shakespeare told us that “[t]he quality of mercy is not strain’d,”
I do not disagree with the majority that the shackling of Walker in court during the penalty phase may have been “trivial” in comparison with his horrific crimes and intention to leave no witnesses to his robberies. I could also agree that technically speaking the presumptive prejudice rule of Deck may not apply both because we deal with Strickland prejudice, not shackling due-process prejudice, and because Deck was decided after the state appellate decision here in question. But nonetheless, for the same reasons that animated Deck, we should be concerned that shackling almost certainly would not assist Walker in getting a favorable determination at the penalty phase because it reinforced the idea of Walker’s dangerousness at a time when the jury was tasked with considering whether to extend mercy to him. From the 1970s onward the Supreme Court has had an uneasy truce with the death penalty, permitting it to be applied when all the i’s are dotted, all the t’s are crossed, all formalities followed, and discretion constrained in permissible ways, but also carving out areas where the death penalty cannot be given to certain persons, like the mentally deficient or juveniles. At the same time the Supreme Court has made clear that the mitigation factors that can be considered are open-ended, and should not be limited by state or federal courts, Lockett,
I would reverse the decision of the district court as to Walker’s conviction, concluding that the shackling did not prejudice Walker by impacting what I think was the inevitable conclusion of the jury on the evidence and jury instructions. But I would affirm the decision of the district court to grant Walker relief on his death sentence because he should receive another penalty-phase trial at which he is not improperly shackled so that a jury can weigh the aggravating factors relating to his crimes against the mitigating factors of his youth and family relationships befоre deciding if he is eligible for the punishment of death. I respectfully dissent in part.
.The majority attempts to distinguish this case on the following grounds: (1) that Roche was tried together with a co-defendant who was not shackled giving rise to the presumption that Roche was dangerous whereas Walker was tried alone; (2) that Roche’s restraints were "more extensive" than Walker’s and were actually visible above Roche’s clothes; and (3) that the judge presiding over Roche’s case said nothing to minimize the prejudicial impact of the restraints whereas the judge in Walker’s case did. But Roche is not distinguishable from the present case. While Walker was not tried with a co-defendant, the shackles in Roche were not more obtrusive and prejudicial than those here. Although Roche’s shackles were above his pant leg and Walker's brace was not, "the sole mention” of the existence of the shackles in Roche was when counsel requested that he would like to have Roche seated at the witness chair before the jury came in so that they would not see his leg cuffs.
. William Shakespeare, The Merchant of Venice act 4, sc. 1, 1. 184 (H.L. Withers ed., D.C. Heath & Co. 1916).
. John Milton, Paradise Lost 345, bk. X, 11. 59, 77-78 (Appleton ed. 1851).
. Quotation attributed to Abraham Lincoln from a conversation where Lincoln apparently decided to pardon some young men from New Jersey who had deserted the army, were recaptured, and were sentenced to death. Osborn H. Oldroyd, The Lincoln Memorial: Album-Immortelles 459 (Gem Publ'g House 1882).