Wrinkles v. Buss

and at a mini- gun, hand on his put his concluded judge apparently The district mum, for his repeatedly reached Robinson been gun would have use of the any re- attempt in an pocket or waistband an at- distinguish felonious, did not so he qualify gun, which would trieve his any of the the officers to shoot tempt step.” “substantial that exist on attempt possibilities other are misde- record, of which some police that the Accordingly, we conclude formally ex- judge did not meanors. The conduct a Ter- suspicion to had reasonable option chose one over why he plain and there- weapons, and frisk for ry stop on factfinding required other. Further We re- Robinson’s conviction. fore AffiRM this enhancement. application challenges to ject the first Robinson’s sentence, of the regarding application affirmatively hold tous Robinson asks vic- for assault of an official enhancement applied cannot be guideline 3A1.2(e). conclude, how- § tim under We remand, think the district but we ever, findings court’s the district conduct that Robinson’s could find permit application insufficient aggravated bat attempted amounted to of a firearm possession enhancement parsing of on the court’s tery, depending felony under with another connection To circumstantial evidence. direct 2K2.1(b)(6). Accordingly, § we Vacate battery, attempted aggravated establish for fur- and RemaND Robinson’s sentence to show that Robin government needs opin- consistent with this proceedings ther battery and that to commit son intended ion. doing so. step toward he took a substantial Comp. 5/8-4; People v. III. See 720 Stat.

Britz, Ill.App.3d (1976) aggravat (discussing attempted evi there is no direct battery).

ed While intent, there is some of Robinson’s

dence for an inference support

circumstantial was, to shoot. Robinson

that he intended all, for a loaded reaching gun,

after suggests that he that it was loaded

the fact There just for show. carry gun

didn’t suspect that he awas

is also evidence suggest might shooting, which

another than to shoot rather guns that he uses WRINKLES, E. Matthew step” the “substantial As for intimidate. Petitioner-Appellant, that he officer testified requirement, one managed to that Robinson believed statute, (1995) (in "sig- of firearm

2(b) (describing aggravated under federal use assault (16) 5/12-2(a)(6) "if employment" as a misdemeanor and connotes § nifies active used”). firearm”). We conclude cannot possession a firearm is not than mere of a "more gun to as- "used” his commit that Robinson to this if conduct amounted So Robinson's sault; beyond pos- generally goes “use” mere assault, aggravated it would have form of States, Bailey v. United session. Cf. offense been misdemeanor class 137, 143, L.Ed.2d BUSS, Superintendent,1 Ed

Respondent-Appellee.

No. 05-2747. of Appeals,

United States Court

Seventh Circuit.

Argued Sept. 2006. Aug.

Decided 2008. Buss, superintendent because a firearm was not “used in the com- Ed who became appeal Indiana State after Prison mission of the assault.” filed, has been substituted for Daniel McBride 43(c)(2). appellee. R.App. as the Fed. P. See of At- (argued), Office K. Kobe Andrew IN, Re- General, Indianapolis, torney spondent-Appellee. KANNE, FLAUM, and

Before ROVNER, Judges. Circuit KANNE, Judge. Circuit on collater- the court case is before This 1995, Vanderburgh Coun- al review. jury Indiana, convicted ty, Circuit wife, his murdering Matthew Wrinkles brother, and his sister-in-law. his wife’s Richard Judge recommended jury sentence. a death Young imposed L. his con- unsuccessfully appealed the Indiana Su- and sentence viction thereafter, Court, Judge Carl preme Vanderburgh Circuit Heldt of the re- post-conviction for request denied for filed a petition then lief. Wrinkles § corpus, 28 U.S.C. writ of habeas for District Court the United States Indiana. Wrinkles District Southern rights were constitutional argued sentencing trial and during the violated because, to the pursuant proceedings of re- policy judge’s blanket to wear stun straint, required he was jury. to the alleges was visible that he belt raising a di- barred Wrinkles was constitutionality of challenge to rect de- procedurally he the stun because court. Wrinkles in state faulted claim ineffective that he received instead claimed under of counsel Strickland assistance U.S. Washington, 466 (1984), his counsel because L.Ed.2d 674 imposition object to the failed to respect With restraint. stun-belt Strickland, Wrinkles prong of prejudice saw the claimed that the Allen, preju- suffered presumptively & Cleary, Hammerle and that he Joseph M. District United States IN, Long-Sharp as a Rhonda R. dice result. Indianapolis, Tinder, concluded Indianap- Judge, John Daniel Long-Sharp, & (argued), Foster not demonstrate could olis, IN, Petitioner-Appellant. Seth, because the not aware of the stun age eight the home of Mark and —to belt. Fulkerson, Natalie Debbie’s brother and sister-in-law. This move marked the end hinges

Wrinkles’s habeas claim Debbie’s marriage, and whether saw stun belt Debbie filed for divorce on June 30. A few sentencing the trial and the pro- later, weeks on July Wrinkles and Deb- ceedings. passage One in the Indiana bie a provisional attended divorce hearing, opinion actually, Court’s one — during which it was decided that Debbie complicates our review. We sentence — would have custody of the children and ultimately conclude that the Indiana Su- Wrinkles would have visitation rights. preme finding Court made no factual re- Wrinkles and Debbie agreed to a meet at a garding visibility. the belt’s The last fast-food restaurant later that day so that state-court decision on point post- —the Wrinkles could see his children. But Deb- conviction court decision—holds that bie did not show that afternoon as sched- jurors did not see the belt. We defer to uled. agree and with the district court that Wrinkles suffered no Wrinkles had hit a low point in his life. from his counsels’ failure to to the He had a close relationship with his chil- stun belt. dren and he believed that his estranged wife and her family conspiring were to History I. deny him access to the children. In addi- A. history Factual tion to his marital problems, the automo- By spring marriage tive-repair business that he ran out of his Matthew coming and Debbie Wrinkles was garage was failing. Several zoning com- 3, 1994, May to an end. police On plaints had been against made his business dispatched to the Wrinkles’ home re and he was forced to shut down. Wrinkles sponse to a report gunfire. Wrinkles had also dependent been on methamphet- responding told the officers that he and time, amine for-some and this dependence having Debbie were financial and marital caused him to easily agitated become and problems and that he would kill if Debbie paranoid. In addition to his mental and Plemmons, she ever left him. David decay, emotional drug use him caused events, testify witness would later away to wither physically. Wrinkles’s ad- pointed gun Wrinkles at Debbie kept diction him sleeping, except spo- argument gun and the dis radically, sixty and he pounds lost in a charged grabbed when Debbie it. Accord period. three-month Plemmons, ing to gun Wrinkles hid the begun Wrinkles’s obvious decline had arrived, police when the and Debbie and terrify testify Debbie. Her friend would Plemmons “covered” for lying Wrinkles at trial that Debbie had become a “nervous police to the about the incident. The wreck.” Id. at 1159. begun She had Court later characterized every take “medication [and] time she the Wrinkles’ relationship “stormy jump heard a noise she would cause she State, often violent.” Wrinkles v. And ... she sleep scared. had to (Ind.1997) (“Wrinkles N.E.2d gun with a pillow underneath her [because] I”), denied, cert. she was scared” of Wrinkles. (1998). 148, 142L.Ed.2d 121 In June Debbie moved herself and appear Debbie’s failure to with the chil- thirteen, Lindsay, age dren at the July fast-food restaurant on children — commotion, Fulker- Natalie During of events. tragic series into motion set way living room made her son to his divorce complain called Wrinkles door, flee. attempt an the front out nothing told attorney, who Wrinkles caught Natalie on gave chase and day because the next until could be done face at shooting her in her porch, the front already closed. had the courts porch. died on the range. close Natalie speak home to the Fulkerson then called ten-year- fled. The Fulkersons’ there. Deb- Debbie, was not but she 19-year- Kimberly, and her daughter, old that eve- call later bie returned cousin, houses Tracy, neighbors’ ran to old an answer. get ning, but she help. for rest of the and the Eventually, Debbie turned for Fulkerson household morn- later that was arrested growing ten- July 20. night on Given county and was neighboring in a ing rest; lives, uneasy an their sion in murder, pur- with three counts charged and Debbie Fulkerson

both Mark 35-42-1-1(1), § to Ind.Code suant bedrooms. them their guns with The state knowingly killing his victims. the death notice of its intent seek filed Fulkerson home drove to Wrinkles 28, July 1994. Under penalty July and 2:00 a.m. on at approximately law, penalty can the death the state seek from the one block truck parked his about mur- multiple a defendant commits when camouflage cloth- wearing He was home. 35-50-2-9(b)(8). § ders. Ind.Code face, armed and was ing, painted his and a knife. revolver magnum awith .357 Fulker- into the over a fence

He climbed history B. Procedural telephone cut backyard. sons’ He investigations, pre-trial Based on their door, enter- in the back and kicked wires attorneys’ theory of his defense Wrinkles’s ing the home. that, time of fact at the centered on the hallway and down went Wrinkles crimes, of a the midst Wrinkles was bedroom, he where into the Fulkersons’ life. The attor- very period difficult in his times, killing Fulkerson four shot Mark the loss of Wrin- neys decided to stress son, Mat three-year-old his him in front of business, mar- break-up of his kles’s by gun thew. Debbie was awakened that Debbie and perception and his riage, ran to gun her grabbed shots. She keep his trying the Fulkersons Wrin she confronted hallway where argued from him. The defense children arm, him in the hit kles. fired and She into the Fulker- had broken At process. in the knocking retrieving herself down his sons’ home with the intent had also point, Lindsay that he would he feared children because upon the confron paranoia magni- and had come again awakened them never see —a saw that She addiction. parents. tation between her methamphetamine fied his when, mother her to shoot enhanced paranoia her father was about was further Wrinkles, ‘Dad, don’t shoot victims con- please according to “pleaded, and she ” State, 749 N.E.2d when he entered guns fronted him with Mom.’ Wrinkles (“Wrinkles II"), (Ind.2001) Deb- cert. would cast the home. Wrinkles also their confrontation denied, aggressor bie as testify Deb- (2002). hallway; he responded in the would L.Ed.2d 624 bastard, die,” said, “Die, when she you then up,” and bie Lindsay “shut by telling I, at 1159. him. Wrinkles shot Debbie. promptly he shot This strategy necessary given the that cannot stopped. be The electrical First, facts of the case. there was no shock travels through body via blood dispute that Wrinkles had shot the three channels and pathways. nerve The shock victims, and therefore Wrinkles’s motiva- knocks down most people, incapacitates tion for shootings would be the pri- them for up minutes, and causes mary issue at trial. And Wrinkles’s state them to shake uncontrollably. The indi- of mind would significant likewise be a vidual also have uncontrollable defe- issue for sentencing terms of whether cation urination, irregular heartbeats, penalty the death or a lesser sentence was seizures, welts, due to the shock. appropriate. addition, attorneys attorneys Wrinkles’s that although concluded Wrinkles’s mental mandatory restraint policy. When faced might impact his culpability and sen- with the choice of or a shackles tence, the facts did support an insanity they opted latter, for the reasoning that defense. A neuropsychologist enlisted there was less likelihood that the jury Wrinkles’s that, concluded while see trial. Wrinkles suffered from a Mixed Personali- ty Disorder and a Delusional Disorder that A jury found Wrinkles guilty of all three more became intense during the weeks murder, counts of and recommended the up leading to the shootings, and while penalty; death the trial judge sentenced judgment was substantially im- Wrinkles to death. appealed paired at the time the shootings, he was conviction and death sentence, raising a nonetheless sane because he had known number of evidentiary claims and challeng- what he was doing and able to con- ing both Indiana’s death-penalty statute form his conduct requirements and his own not, sentence. He did howev- the law. er, appeal the trial court’s policy blanket commenced, Before trial the trial judge requiring him to wear the stun belt informed Wrinkles’s counsel that Wrinkles trial. Unpersuaded, the Indiana Supreme would have to wear some sort of restrain- Court affirmed Wrinkles’s convictions and ing device—either shackles or a stun belt. (Wrinkles I). sentence The trial court not specific did make a finding that presented a risk of Thereafter, petition Wrinkles filed a danger, escape, or disruption. courtroom post-conviction relief, in which he chal- But “the trial court apparently a [had] lenged the constitutionality of the belt stun policy of requiring defendants to wear re- and raised ineffective-assistance-of-counsel regardless straints whether [had] claims, among other claims. Central to his previously exhibited conduct justifying post-conviction claim for relief were three II, restraints.” Wrinkles 749 N.E.2d at affidavits from in his trial who 1195. According to the claimed to have seen the belt. The II, in Wrinkles a stun belt ais post-conviction court discounted the relia- restraining device that placed around an bility of the affidavits upheld Wrin- individual’s waist as an alternative to leg- kles’s convictions sentence: irons or shackles. The battery-powered belt The trial prongs has two court did strip that are not placed pre- the over the kidney sumption wearer’s region. A court innocence bailiff from Petitioner or other law-enforcement requiring officer can him to acti- wear the belt. The vate the belt and, remote control purpose once of the belt is to maintain control activated, it sends shock to the wearer prisoner over prisoner without the a defen- on impact the mental with not cerned did Petitioner restrained. appearing poten- the about might be afraid who or that dant was visible belt the

prove belt, and the from pain infliction affidavits tial it. The about jury knew impact could concern they knew about this mental how jurors that three from own bailiff, his court, participate ability to defendant’s the trial from belt tri- after read articles defense. Wrinkles newspaper and/or during appearance al, and Petitioner’s Court denied But the First, juror insufficient. are trial holding. of its benefit each oth- with inconsistent are affidavits pro- claim that Wrinkles’s held court jury was that the juror stated One er. had because cedurally defaulted wore why Petitioner told not appeal. direct the issue failed raise the tri- averred juror another while held that addition, court the belt about court told al assis- ineffective not suffered be they would assure attorneys failed when of counsel tance juror affida- Second, some safe. belt at of the stun the use Todd bailiff are inconsistent vits n Wrinkles’s court characterized trial. not that he did affidavit Woodmansee’s to the stun acquiesce attorneys’ choice Third, both belt. jury about tell “strategic as a decision”: belt testified that attorneys] [of trial. visible not belt was in- began, trial Before not affidavits Fourth, juror that Wrinkles counsel formed Be- to cross-examination. subjected a stun or shackles either have to wear re- appear petitioner cause objection Without during trial. trial, he was during the strained belt, and Wrinkles a stun counsel chose of inno- presumption stripped of assis- ineffective they rendered claims cence. Al- disagree. We a result. tance as of Findings Court’s Vanderburgh Circuit that we declare opinion though with Judgment Law and of Fact, Conclusions a place longer no have belts stun Relief, Conviction for Post Petition the on not courtrooms, was that Indiana State, 82C01-9407-CF- v. No. Wrinkles trial. Our Wrinkles’ time of at the case 1999) original). (emphasis 3, (Sept. 447 by the primarily is motivated prohibition may have rendered court belt stun effect a post-conviction potential the After that court device. filed with the decision, wearing person upon its the he Error, to which dec- of this However, the benefit to Correct a without Motion ju- from additional about affidavits concerned laration, were new counsel attached the stun have seen they rors, jurors if who claimed the on the effect post-conviction wearing particular trial. a belt client observe their motion, nor the grant Wrinkles’s that not did believed court Counsel device. juror affidavits the additional admit the shackles seeing it of chance hand, evidence. other into fairly high. On was because belt the stun for opted counsel post-convic- appealed then not be jurors thought to the ruling court’s tion they were Obviously, it. to see able law, su- on Relying Court. However, wrong. proven later prospectively II in Wrinkles court preme a made, it was the decision time in Indiana belts stun use of banned one. prudent con- specifically courts.

811 for of petition Wrinkles filed a a writ without an independent assessment of the 2254, § under in need for corpus habeas 28 U.S.C. restraints.2 the United States District Court for A. Procedural default present- Southern District of Indiana. He arguments, Judge ed a all of which host of Before analyzing Wrinkles’s sub Tinder, McBride, claims, § rejected. Wrinkles v. stantive we first must de (D.Ind. 18, May No. IP termine whether Wrinkles proeedurally 01-1668-C-T/K 2005) Petition Writ defaulted his (Entry Discussing argument wearing for Corpus). of stun belt his respect Habeas With violated rights. constitutional Davis, (7th constitutionality itself, 896, Lee v. F.3d of the stun belt Cir. (“As 2003) matter, district court held that the claim not threshold we could must determine whether Lee presented proeedurally § be under it had has because defaulted argument_”). proeedurally been The dis defaulted state-court trict court Further, decided Judge Wrinkles had de proceedings. Tinder held argument—a faulted his waived, decision we the claim re even if been general matter, view de novo. Id. As a Judge lacked merit. Tinder credited considerations “finality, of and comity, post-conviction ju- court’s that the orderly justice” preclude administration of rors were not aware of the stun reaching this court from that a ha- claims belt was visible. petitioner beas has proeedurally defaulted Thereafter, filed a Request in state court. Haley, Dretke U.S. (“C.A.”) Appealability Certificate two 386, 388, 158 L.Ed.2d 659 (1) issues: “Whether was unconstitu- [he] (2004). The criminal trial is a “decisive tionally wearing restrained virtue and, such, portentous event” (2) trial,” belt at “Whether has an in ensuring interest timely counsel rendered ineffective [his] assis- compliance procedures that per those ‘guilt tance of phase’ counsel “decide, jury accurately mit the within trial.” Judge granted Tinder the limits of human fallibility, question constitutionality C.A. on the issue of the or guilt innocence of one of its citizens.” the use of the stun but denied Wainwright v. Sykes, 433 U.S. request as to his ineffective-assistance-of- (1977). 53 L.Ed.2d 594 For counsel claims. appeal This followed. reasons, procedural these a valid state rule “adequate an independent constitutes and II. Analysis issue, ground” resolving pre for an appeal, On first that argues Wrinkles’s this court from cluding doing so collateral the district court his erred that 86-87, at ly. Id. 97 S.Ct. 2497. proeedurally stun-belt claim was defaulted because the default result of inef- sought federal habeas fective assistance of counsel. As his corpus for review of federal-law that issues claim, freestanding constitutional ar- disposed he the Indiana gues Sixth, Eighth, that his Four- on adequate independent based state- teenth rights Amendment grounds. violated law Specifically, Wrinkles’s when he was forced to “freestanding” wear stun belt stun belt claims—that his expansion 2. quest expand Wrinkles also seeks an C.A. the C.A. to include the addi- to include his non-stun-belt ineffective-assis- appeal. tional claims on See Herrera v. United arguments. States, tance-of-counsel For the reasons 1010, (7th Cir.1996). 96 F.3d 1013 court, by deny stated district we his re- 8X2 Sixth, solely igno Fifth, attorneys’ because of his trial under the to fair trial

rights a law, a his Amendments rance of the fact renders Fourteenth Eighth, and provides were violat- ineffective and that cause States Constitution counsel the United to wear a stun required procedural Murray, to excuse a default. ed when he was by hearing—were 496, 106 a deemed 477 at S.Ct. 2639. belt without U.S. to have been Supreme Court level Attorney rising error matter of state law. Wrinkles a waived as ineffective assistance of counsel can consti at 1186-87 & 1187 n. 3. 749 N.E.2d procedural tute cause to set aside default. by Indiana Su- rule cited procedural Gilmore, 877, Franklin v. 188 F.3d 883 “adequate an preme provides Cir.1999) (7th (citing Thomp Coleman v. resolving ground” for independent state son, 722, 753-54, 2546, 111 S.Ct. constitutional claims. (1991); 115 L.Ed.2d 640 Barnhill v. Flan recognized, and long courts have (7th Cir.1994)). 1074, 42 nigan, F.3d 1078 reaffirmed, II petitioner When habeas seeks excuse available, pre- but not that are “[c]laims procedural through an ineffec default sented, are for appeal on direct waived claim, the “cause” and tive-assistance the claimed post-conviction review unless “prejudice” from is re Wainwright test 3; at n. is fundamental.” Id. 1187 error placed by the for ineffective similar test State, 625, also Adams v. see set assistance out Strickland v. Wash (Ind.1991). Thus, the district court 628 668, ington, 466 104 2052. U.S. S.Ct. to conclude that Wrinkles’s was correct 479, Murray, See 477 U.S. at procedurally claim was barred. substantive (“So long is represent 2639 as defendant by ed counsel is performance whose procedural B. Excuse default for constitutionally ... ineffective there is no freestanding keep To consti inequity requiring him to bear risk alive, argues that tutional claim attorney proce error that results in a under procedural default excusable Lee, default.”); dural see F.3d at also Wainwright set forth in the standard 900. A 2497. Sykes, 433 U.S. at S.Ct. procedural de “To establish ineffective assistance defendant overcome counsel, showing failing [petitioner] must show that fault both “cause” rules, performance and a deficient and procedural the state counsel’s abide performance resulting “prejudice” prejudiced failure.3 the deficient [petitioner].” Specifically, 2497. Almonacid v. United Id. States, (7th Cir.2007) freestanding argues that 476 F.3d Strickland, (citing procedurally defaulted U.S. at stun-belt claim is text, recognized addi- one show "actual Court has an can innocence” that, through convincing way procedural default if "clear and evidence tional avoid error, in a mis- but for a constitutional reasonable default would result "fundamental no Carrier, juror petitioner eligible carriage!] justice.” Murray v. 477 would have found of 478, 496, 2639, penalty applicable death 106 S.Ct. 91 L.Ed.2d 397 for the under the U.S. LaFave, 333, (1986). Sawyer Whitley, et generally Wayne 6 R. state law.” U.S. See 505 336, ed.2004). 2514, al., (2d (1992). S.Ct. 269 Procedure 64-65 112 120 L.Ed.2d Criminal not, cannot, justice any miscarriage of in the "extraor- Wrinkles has make claim A exists sentence, case, although dinary of where a constitutional violation innocence. As issue, analy- probably in the conviction of one Wrinkles has not raised this has resulted analysis actually Murray, closely U.S. sis under the 477 mirrors our who innocent.” 496, capital prejudice prong con- Strickland. S.Ct. 2639. of 106

813 2052). “constitutionally S.Ct. A deficient on an unreasonable determination of the performance is one that falls below an light facts in of the evidence presented in objective of standard reasonableness under the State court proceeding.” 28 U.S.C. professional prevailing norms.” Shell v. 2254(d). § States, (7th 951, United 448 F.3d 954-55

Cir.2006) (citing States, Granada v. United 1. Substandard performance by coun- (7th 82, Cir.1995)). 51 F.3d 83 And to sel prejudice, show the defendant prove must argues, agree, we “ ‘there is a probability reasonable that his performance counsel’s at trial fell that, but for unprofessional counsel’s er below prevailing norms professional of rors, the result the proceeding would behavior. The Indiana Supreme have been A different. proba reasonable correctly identified Strickland as the gov bility probability is a sufficient to under law; erning thus, gain will ” mine confidence in the outcome.’ Raygo relief if the court unreasonably applied Hulick, (7th za v. 958, 474 F.3d 963 Cir. the standard to the facts of his case. 28 2007) Strickland, (quoting 694, 466 U.S. at 2254(d)(2). § U.S.C. In evaluating the 2052). 104 case, In Wrinkles’s if his reasonableness Indiana attorneys’ object decision Court’s application Strickland, we stun belt fell short of objectively reason must ask whether the “objec court was performance him, able and prejudiced tively unreasonable,” Taylor, Williams v. Sixth Amendment was not satisfied and 362, 409, 1495, 120 S.Ct. 146 this court will excuse procedur Wrinkles’s (2000), L.Ed.2d 389 meaning that its rea al default. “ soning falls outside of the ‘boundaries of Wrinkles’s ineffective-assistance claim ” permissible differences opinion.’ preserved Lee, for collateral review. Raygoza, 474 F.3d at 964 (quoting Hard 328 F.3d at (citing v. Carpen- Edwards away (7th v. Young, 302 F.3d ter, U.S. .2002)). Cir (2000)). L.Ed.2d 518 The Indiana Su- Court held that

preme Court reached —and ultimately re- Wrinkles’s counsels’ decision not to jected claim as an excuse for —Wrinkles’s to the stun trial was strategic and procedural default. In reviewing the adequate. thus supreme court first Indiana Supreme decision, Court’s we are noted that the Indiana trial court had a deferential legal towards its and factual “policy” stated of “requiring conclusions. defendants to Raygoza, 963; 474 F.3d at wear regardless Jordan, (7th restraints they Neumann v. whether 84 F.3d Cir.1996) (“In have previously exhibited reviewing jus conduct state court tifying proceedings, presume we restraints.” that the factual findings of the N.E.2d at state court 1195. The trial given are correct if court had those findings a hearing attorneys follow on the mer- the choice of wearing its and are fairly shackles or supported by the stun belt rec- at trial. Because ord.”). Likewise, they thought that “the chance of the legal Court’s seeing conclusions upheld will be high,” shackles was fairly Wrin unless resulted in a decision that kles’s chose the stun belt. Id. “(1) contrary to, or involved supreme an unreason- The court characterized this as of, application clearly able “strategic established fed- because, decision” unlike shack law, eral as by determined Supreme les, the attorneys Wrinkles’s “thought ju the (2) States; Court the United or based rors would not be able to see” the belt. 814 presence the evaluating when framework trial court addition, because Id. In trial. a defendant’s at guards of armed objection to any have overruled

would presence that the concluded Court “poli- restraint its stated per stun belt— of inher not “sort guards was armed that not demonstrate could cy”—Wrinkles that, like shack practice ently prejudicial if different been have would trial his justi where permitted be ling, should (“[E]ven objected. Id. had attorneys his specific interest state by an essential fied not would policy court’s trial though the 568-69, 106 at S.Ct. Id. trial.” to each scrutiny if the appellate likely withstand justifi particularized for The need a 1340. at that apparent it is were presented, issue by Indiana unnoticed gone not cation trial, an of Wrinkles’s time at the least either. courts not wearing restraints to objection State, particu that v. held Coates Court judge trial been sustained have a decision support reasoning must larized made.”). Thus, supreme court if even far to defendant, so going a to restrain strategic and concluded, decision sup reasoning “the facts that require a substandard show not could determination judge’s the trial porting dis- counsel. We by his trial performance placed necessary must be are restraints agree. (Ind. 167, 168-69 record.” trial, it was of Wrinkles’s the time At 1985). could trial court that a well established case, In Wrinkles’s a par- absent defendant criminal restrain belt because the stun use of object to the v. Al- In Illinois justification. ticularized court was the trial they concluded that a defen- held len, matter no what. restraints going require Amendment Sixth forfeit his could dant particular- clear that make these cases But at unrestrained right present to be any decision reasoning support must ized 1057, 25 337, 90 S.Ct. 397 U.S. own trial. light of a defendant. to restrain (1970). sanctioned The Court 353 L.Ed.2d the trial prohibiting of caselaw wealth a last “as restraints physical use of mute, standing policy, blanket court’s 1057, and artic- 344, resort,” 90 S.Ct. id. at ade- provide counsel failed “obstrep- handling a framework ulated Failing to legal assistance. quate the trial tied defendants erous” impermis- presents two when seriousness response court’s belt, nei- aor options sible —shackles 343-42, conduct, 90 S.Ct. id. at defendant’s justifica- by individualized supported ther framework this applied The Court 1057. reasonable objectively be an tion—cannot 501, Williams, U.S. 425 v. in Estelle next profession- norms prevailing under tack (1976), in 126 L.Ed.2d 48 96 S.Ct. Strickland, See al behavior. before appeared which defendant however, (“Counsel, 686, 104 S.Ct. Allen, which Unlike garb. prison right a defendant of also deprive can to impose need “the substantial recognized assistance, by failing simply effective de- contumacious upon physical restraints ”); see assistance.’ ‘adequate legal render decided in Estelle fendants,” the Court Uchtman, 398 F.3d v. Barrow also jail cloth- to wear “an accused forcing Cir.2005) (holding ignorance (7th policy.” essential no ing further[ed] under objectively deficient law relevant Id. F.3d Strickland); Snyder, v. Dixon Cir.2001) (same). (7th Counsels’ 693, 703 Flynn, U.S. in Holbrook Again op- unconstitutional two choice between L.Ed.2d 525 560, 569, defer- worth choice strategic is not tions applied (1986), Accordingly, enee. Supreme Indiana the stun during trial, then Wrinkles unreasonably applied Strickland’s could prejudice. demonstrate Allen, See prong. first 397 U.S. at 1057; Roche, 482-83; F.3d at Israel, Harrell v. 672 F.2d 2. Prejudice (7th Cir.1982) (“[Cjourts must alone, Standing the attorneys’ failure to guard against practices which unnecessari request an inquiry justification into the ly mark the defendants as a dangerous the stun belt is not ineffective assistance. character suggest or guilt his is a required Some is before foregone conclusion.”). Thus, Wrinkles’s performance counsel’s falls below the con- petition habeas hinges on the belt’s visibili Strickland, stitutional minimum. ty; the belt’s visibility is a question of fact 691-692, 104 S.Ct. 2052. dem- Without by was resolved post-convic onstrating prejudice, cannot re- tion court and upheld by the Indiana Su ceive relief ground of ineffective preme Court. counsel, id., assistance of or on the basis of freestanding

his constitutional claims re- The post-conviction court determined belt, garding the stun because the latter that Wrinkles had not demonstrated that claim procedurally defaulted at the jurors had seen the stun belt or that state level. Wrinkles had otherwise by been affected it. The Supreme Indiana Court affirmed argues preju that he was post-conviction court. Wrinkles con- because, diced opinion, his jurors tends, however, that the supreme court were aware that he was restrained made an implicit factual finding that the stun belt and were thus more inclined to belt was jury. visible to the He bases his view him dangerous turn, as a person. argument on a statement argues, he Wrinkles II likely were more indicates that determine that he had the requisite mind Wrinkles’s murder, set to proven commit “were later wrong.”4 instead of a lesser This sen- crime, and more tence willing vote for follows the court’s discussion of the the death penalty. If the did see attorneys’ decision not to challenge the 4. Wrinkles claims that with, also Su- argument, begins Wrinkles’s “Wrinkles preme recognized that the stun belt was subsequent contends.” The sentence starts "conspicuous jurors.” to at least seven How- with, context, "He claims.” Taken in it is ever, quotation Wrinkles takes this in Wrin- clear that the Indiana Court was II kles out of context. full sentence is one merely presenting argument, Wrinkles's in- of three in a paragraph cluding argument that the belt was visible solely Court uses Wrinkles's in- summarize jurors. to seven argument effective-assistance-of-counsel with that, We cannot fathom notion in the respect to the stun belt. The entire sentence sentences, middle of paraphrasing three reads: “Wrinkles asserts that utilization of Wrinkles II perfunctorily court would have the stun conspicuous which was to at inserted a containing a finding, clause jurors, least factual seven presump- undermined indicating without it as such. tion of Courts often appear innocence and made him dan- present gerous party's argument present order to ju- uncontrollable in front consider, proceed the issue it help rors who will and it decide whether he apparent would live or die.” N.E.2d Court was 29; Appellant's doing at 1192 (citing Appel- this in Consequently, Br. at Wrinkles II. we 11). Reply reject lant's begins argument Br. The sentence that this clause is asserts.” preceding “Wrinkles sen- of fact the Wrinkles II court that paragraph, tence in the jurors. which introduces the stun belt was visible to into account taken having faulted for be belt- the stun imposition

trial court’s particular a visibility of potential the restraint: object to a deciding whether in restraint in- trial court the began, trial Before the restraint —because use of court’s would that Wrinkles counsel formed the focused on the time law Indiana a stun or shackles either to wear have restraints. visible stemming harm objection Without trial. during belt belt, and Wrinkles a stun chose counsel findings on Indiana a. law factual assis- ineffective they rendered claims limited review” and the “deferential Al- disagree. We a result. as tance court factual § “state of 28 U.S.C. that we declare opinion this though with correct.” Williams presumed findings are in place have a longer no belts stun Cir.2007). (7th Bartow, 481 F.3d the courtrooms, not was that Indiana the visibility, the belt’s issue of theOn trial. Our of Wrinkles’ the time case considered court post-conviction by the primarily motivated prohibition affidavits, the affidavits from juror three may have belt a stun effect potential from Wrinkles’s bailiff, testimony trial wearing the device. person the upon jurors saw the whether attorneys to decide this dec- However, the benefit without court The the stun about belt. or knew about concerned laration, were counsel affi- juror affidavits. the discredited they if were jurors effect the time that at the juror one stated davit of a wearing particular their client observe that jury, was aware she served the she that the believed Counsel device. belt—she wearing a stun was the seeing shackles jury of the chance [sic].” like cumberbund it “looked said hand, other the high. On fairly was she However, unsure she how she said was belt because the stun opted for counsel belt, that she of the stun learned not be jurors would that thought they newspaper through it learned of have Obviously, they were it. to see able trial. Another she read article after However, at the wrong. proven later was that he in his affidavit juror said made, it was a was the decision time wearing a stun was that Wrinkles aware one. prudent trial, that he believed at 1195. N.E.2d jurors about judge told the trial “Obviously, they believes confidence give the belt to contrast, wrong” sentence proven juror, A third safety. were later their by the Indiana finding of fact told thought that he amounts said bailiff saw the he said that but about the stun jury interpre- that was why wear- disagree with We told stun belt. do court begin, To we post-conviction ing the belt. sentence. tation insufficient Supreme Court affidavits were held believe each inconsistent a factual have because made their question credibili- post- calling into manner, affirmed especially other — they contradicted ty overturn because and did not conviction —and as* as Wrinkles’s testimony, factual well find- court’s bailiffs post-conviction bailiff swore testimony. The attorneys’ read do not we importantly, More ings. communicated he “never about his affidavit anything reveal this statement during the any time jurors at Rather, any of the state- visibility. stun belt’s rack wearing a [Wrinkles] Court’s reflects ment not belt.” attorneys could opinion it had judgment

After rendered its de- Having appealed not post-conviction court’s nying Wrinkles’s for refusal to admit the request post-convic- additional affi evidence, davits into relief, post-conviction tion Wrinkles’s reliance on court denied the additional post-convic affidavits subsequent motion to correct tion appeal to the Supreme Indiana Court error, evidence, motion to reopen seems analogous to petitioner’s reli request for leave to petition amend his for ance on similar affidavits in Patton v. post-conviction proffered relief. Wrinkles State, 537 N.E.2d 513 (Ind.Ct.App.1989). with each of these pleadings copies of four Patton, In petitioner felt that because (A juror more affidavits. fifth affidavit attorney present failed to the evi was attached to a to supplement motion court, dence to the trial “he should be evidence.) reopen the motion to How- present allowed to it by affidavits with his ever, these affidavits were never admitted Motion to Correct Errors.” Id. at 516. court, into post-conviction evidence The Indiana Court of Appeals explained and there is no indication whatsoever that 59(H)(1), Indiana Trial Rule dealing Supreme the Indiana weighed error, motions to correct “was not part additional affidavits analysis as its designed for purpose.” Id. The Pat II. ton court went on to conclude that affidavits “were not properly before the Notably, Wrinkles did not raise as issues trial court as evidence outside the rec appeal they did not qualify newly discov ord”— post-conviction court’s denial of his ered evidence and neglected Patton had to post-judgment motions and request submit them at trial. Id. Because the leave to amend his petition based on the affidavits properly were not before the juror Indiana, additional affidavits. Appeals, Court of the Patton court motion to correct error does not allow declared: “we cannot consider them in party present to merely evidence it ne /¿.(em reviewing the trial court’s action.” glected trial, State, present at Roach v. added). phasis 934, (Ind.1998), 695 N.E.2d 940 n. 1 and a If under state law the Indiana motion to reopen the evidence lies within Court would not have looked at the addi- the sound discretion of the trial judge, tional affidavits its review direct State, (Ind. 675, Walker v. 587 N.E.2d post-conviction Roach, findings, court’s see 1992). A judge typically does not abuse 1; Walker, 695 N.E.2d at 940 n. his discretion in refusing reopen evi 677; Preuss, 792, at N.E.2d N.E.2d plainly dence “when it appears that such certainly we are not liberty weigh earlier,” evidence could have been offered 2254, them § on collateral review under McWilliams, Preuss v. Ind.App. where our review is arguments limited to 230 N.E.2d 792 (Ind.Ct.App.1967), or adjudicated that were merits proffered cumulative, when the evidence is proceedings, 28 U.S.C. Ind., Inc., Oxendine v. Pub. Serv. Co. 2254(d), § arguments that were not (Ind.Ct.App.1980). 2254(b). defaulted, procedurally § id. The additional sought affidavits Wrinkles Here, appeal post- Wrinkles did to have admitted evidentiary into rec conviction court’s refusal admit the ad- post-conviction ord of the court were never ditional affidavits into evidence. Absent they remain mere attachments post-conviction reversal of the court’s rul- admitted — to state-court motions thus should not ings on these affidavits Court, form the basis of a federal habeas decision. and absent indication State, 517 N.E.2d see also Stewart it nonethe- court that II by the Wrinkles (“The (Ind.1988) judge presides who affi- 1231 the additional to consider less decided hearing possesses post-conviction in an engage over the free to davits, we are the evidence authority weigh affidavits’ exclusive assessment independent credibility of the wit- credibility. and determine affiants’ and the weight reviewing court will therefore The nesses. suggests opinion itself II The Wrinkles a ruling on the trial court’s not set aside adopted Supreme Court that the Indiana the evidence petition unless post-conviction findings of fact court’s post-conviction the a solely to and without conflict leads acknowledged court supreme in toto. by the that reached result different findings court’s factual post-conviction the added). court.”) (emphasis trial review of the standard and identified II in Court Wrinkles Indiana law: Indiana for under called it any way considered suggest that case, post-conviction the present In the had never affidavits that the additional con- of fact and findings entered court evidentiary into the record. been admitted law accordance of clusions in a say engaging it the court Nor did 1(6). A Rule Indiana PosWConvietion the evidence in re-weighing of de novo findings court’s post-conviction it would appears II —indeed a only upon reversed will be judgment Indiana as a of not have done so matter which clear error —that showing of 679; Fisher, 810 law. See N.E.2d firm convic- a definite leaves us with Woods, 444; Davidson, 701 N.E.2d at 763 made. has been that a tion mistake nothing in the Finally, at 1210. N.E.2d at 1188. After N.E.2d that the indicates opinion II court’s find- reviewing post-conviction the overturning Court was respect to of law with ings and conclusions findings, court’s factual post-conviction the appeal, arguments of each Wrinkles’s clearly findings were errone- or that those ultimately declared court II the Wrinkles ous. prove “failed to that Wrinkles unerringly leads as a whole evidence “Obviously, reading b. Our of opposite a decision unmistakably to wrong.” proven were later Id. court.” post-conviction reached post-convic- It affirmed at 1203. then ambiguity surround- degree of Despite petition of Wrinkles’s tion court’s denial “Obviously, they proven later ing the Id. for relief. II, we con- wrong” sentence Supreme Court was clude not reverse II court did The Wrinkles court, process which commenting on the post-conviction findings of the attorneys decided The Indiana Wrinkles’s implicitly. or explicitly either opposed to restraint —as noted that stun-belt repeatedly has Supreme Court visibility. In the commenting on the belt’s of fact findings court’s post-conviction explained first erroneous,” passage, the court disputed “clearly unless accepted are of the use just it had invalidated court is “postconviction and that of unavail- type belts based on the evidence weight judge sole of of time at the counsel able to Wrinkles’s Fisher credibility witnesses.” and the upon .\. (Ind.2004); effect trial —the “potential State, v. 810 N.E.2d The court wearing the device.” person State, N.E.2d v. Davidson facing the choice of restraint State, then set out (Ind.2002); Woods light attorneys at added); (Ind.1998) (emphasis theory prejudice then available— it,” “the not be able to see jurors.” Lastly, “effect “it” referring with the to the stun belt. So explained why, read, based on this latter this could be seen as an implicit theory prejudice, counsel’s decision to finding that the had in fact seen the a “prudent choose stun belt was one” stun belt and that Wrinkles’s attorneys though even were “later proven “were later wrong” about their con- proven wrong” to examine their choice trary turn, assumption. this would sug- solely jurors.” based on “the effect on the gest that the stun preju- have diced the defendant.

In rejecting Wrinkles’s claim that he had received ineffective assistance of coun- We cannot conclude that ap- this is the sel, stated, part: the court in relevant propriate (1) reading for two reasons: began,

Before trial the trial court in- quoted section is more consistent with a formed counsel Wrinkles would discussion of the choice facing Wrinkles’s have to wear either shackles or a stun attorneys in light of the then-established during objection belt trial. Without prejudice restraints; associated with belt, (2) counsel chose a stun and Wrinkles Indiana as well subsequent guid- law they claims rendered ineffective assis- by ance the Indiana Supreme Court sheds tance as a result. Al- disagree. We light on the plausible more reading. Pars- though with opinion this we declare that ing section, the above-quoted para- the longer place stun belts no have a in graph begins: courtrooms, that was not the Before trial began, the trial court in- case at the time of Wrinkles’ trial. Our formed counsel that Wrinkles would prohibition primarily by is motivated the have to wear either shackles or a stun potential may effect a stun belt have belt during objection trial. Without upon person the wearing device. counsel chose a stun and Wrinkles However, without the benefit of this dec- they claims rendered ineffective assis- laration, counsel were concerned about tance as a disagree. result. We Al- jurors the effect they on the if were to though with opinion this we declare that wearing particular observe their client longer place belts no have a device. Counsel believed that courtrooms, that was not the jury chance of the seeing the shackles case at the time of Wrinkles’ trial. fairly high. hand, On the other 749 N.E.2d at 1195. The issue before the opted counsel for the stun belt because court was whether Wrinkles’s counsel they thought would not be “rendered ineffective assistance” when Obviously, they able to see it. were “[wjithout objection counsel chose a stun However, proven wrong. later at the belt” after “the trial court informed coun- made, time the decision was it was a sel that Wrinkles would have to wear ei- prudent one. ther shackles or a stun trial.” II, (citations 749 N.E.2d at 1195 In immediately preceding paragraphs omitted). opinion, of the supreme just court had The last few quoted sentences this held that longer “stun belts no ha[d] “[ojbvi- particularly the sentence place Indiana courtrooms.” But this did section— ously, they were proven wrong” later inquiry not end the because “that was not —are entirely unproblematic. trial,” One could the case the time of Wrinkles’ read this second-to-last sentence as refer- when the counsel rendered their assis- ring back to the court’s statement prospectively tance. In banning stun counsel facing Wrinkles’s decision on a form-of

belts, had relied court the restraint to be used: choosing at the time of unproven that was court con- the chance supreme believed that Counsel trial. fairly high. jury seeing shackles tinued: hand, opted for the other counsel On the primarily is motivated prohibition Our ju- they thought stun belt because a stun belt effect potential it. able to see would not be rors de- wearing the person upon have II, at 1195. In other However, the benefit of without vice. they need words, assuming that after declaration, concerned counsel were the attor- jurors, the effect on consider jurors if the effect about posed because it the stun belt neys chose wearing client to observe their being seen risk least particular device. shackles. compared to the when reasoned that Id. Wrinkles the court’s articu- Immediately following a stun belt resulted prejudice from and the ratio- options two lation of these the defen- being to see able choice, the court attorneys’ nale behind the restraints, potential from “the but dant continued, per- the may upon have belt effect a stun wrong. they proven later Obviously were This form of wearing son the device.” However, was at the the decision time preex- a departure marked prejudice made, one. prudent it was a law, which had discussed isting case refers back to the This first sentence Id. visi- the defendant’s in terms of prejudice for opted “counsel court’s statement restraints. Id. bility before they thought belt the stun because Indiana, 1193-95; v. Stephenson also see to see it.” Wrin- jurors would not be able (Ind.2007) 1029, 1022, 1032 the form of re- attorneys opted for kles’s of counsel’s (discussing reasonableness minimize they thought would straint addressing law case “given choice jurors.” But prejudice “effect —the the visibil- largely focused the issue just held that its decision the court had not, restraint, as Wrinkles ity of the primarily by the instead “motivated out, potential on the belt’s pointed later upon have potential effect demeanor and effect on defendant’s device,” not the wearing the person defense”). Un- ability participate Thus, “[o]bviously, jurors.” “effect on then, the benefit of derstandably “without wrong” to have they proven later were declaration, counsel were [Wrinkles’s] this through of restraint evaluated choice estab- the more instead with concerned” alone. None- juror-prejudice the lens of associated prejudice form of lished theless, attorneys could not be because the if “the effect on restraints: predict the form failing faulted wearing a client to observe their II, “at in Wrinkles prejudice announced particular device.” made, it was a the time the decision one.” prudent ef- whether then became question larger II within the Placing Wrinkles accounted for have fective counsel procedural law—both context of Indiana just identified new form of laid subsequent interpretation law and a supreme But belts. banning stun Court —rein- was not out no; the failure court said reviewing reading. When reaching this forces In assistance. ineffective courts, the decision in federal state-court recreated the conclusion, the first court

821 potentially dispositive ensuing supreme resolution of ambi- state af- decision by a fects a guities disputed finding previous occasioned state-court in a deci- sion, resolved, it is not possible, by unprecedented. should be where ref- This sce- nario regularity arises with some law. Tibbs v. when erence that state’s See reviewing whether a Florida, defendant’s retrial 457 U.S. S.Ct. (1982)(direct following appellate court’s reversal review); L.Ed.2d 652 Greene of a conviction raises jeopardy double con- Massey, cerns. And frequently defendants (1978) (collateral raise review); L.Ed.2d Riv- these claims before federal courts on col- County, era v. Cook 162 F.3d Sheriff of See, Rivera, lateral review. e.g., 162 F.3d (7th Cir.1998) (collateral 486, 489 review If appellate 489. the state court re- Thus, post-AEDPA). analogous in an situ- versed because the evidence in the first ation, the Supreme Court has instructed insufficient, trial was jeopardy double at- proce- lower courts to examine the state’s tached and retrial improper. But if the closely, certify questions dural law or to appellate simply court reversed because highest necessary, the state’s court when defendant’s first conviction was Greene, 8, 27, at 26 n. U.S. 98 S.Ct. against “weight evidence,” 2151, or to examine subsequent decisions defendant’s retrial is constitutional. that may light shed some on the issue at deciding which basis the state appellate hand, Tibbs, 46-47, 457 U.S. at court relied on in reversing, federal courts must often parse appellate court’s de- Here, procedural law and a sub- against cision the backdrop of the state’s sequent supreme court decision support procedural ensuing law and case law. Id. the conclusion that the reading above (“[Sjtate courts should themselves deter- First, II proper is the one. as right way mine the to understand their above, implausible discussed it is to view pronouncements.”). “Obviously” implicit statement as an A comparable scenario to the case at finding by factual supreme the the court. presented hand itself to Supreme law, Under Indiana the supreme court Florida, in Court Tibbs v. 457 U.S. at would not have examined additional affida- There, 102 S.Ct. 2211. the Florida Su- in vits contained a motion to correct error. preme Court’s first decision reversing And the of rest Wrinkles II is more consis- obviously Tibbs’s conviction did not rest on tent awith blanket affirmance than with “insufficiency” either the “weight or the an despite affirmance a factual finding con- the evidence.” But a second Florida Su- trary post-conviction to the court’s. This preme opinion following Court Tibbs’s re- latter especially unlikely given scenario is matters; trial clarified the earlier reversal supreme that the court reviewing only had “weight been based on the of the for clear error. Supreme evidence.” One issue before the But importantly, more court must appeal Court on from this latter decision Supreme credit the Indiana later Court’s was whether the initial reversal had been interpretation resolving of Wrinkles II in “weight based instead on the of the evi- ambiguity disputed contained in the dence.” The Court affirmed the Tibbs, passage. 46-47, 457 U.S. at retrial, following defendant’s conviction 2211 (“Any ambiguity in I ... Tibbs noting that the Florida Supreme Court’s by was resolved Florida prior opinion “construction of its binds this II,” in 46-47, Tibbs which “binds this Court.” Id. 102 S.Ct. 2211. Be- Court.”). Although “[a]ny ambiguity it is not often that an cause in ... Tibbs I to establish “prejudice” in amount of site Supreme Court Florida by the

resolved claim. ineffective-assistance id., give effect II,” the Court Tibbs meaning that the defen- II in Ste- of Wrinkles This discussion decision— proper. had been retrial reading dant’s that the above phenson indicates The section dis- one. appropriate is the Indiana, N.E.2d Stephenson II decision tracks the Wrinkles cussing (Ind.2007), the Indiana in the reasoning Supreme Court’s In Ste- guidance. provided similar The court manner discussed above. exact the decision compared phenson, the facing Wrinkles’s recreated the decision choosing in counsel made Wrinkles’s form attorneys light in established decision made same the stun belt again time. The court In so trial. by Stephenson’s that Wrinkles’s recognized in its rationale explained doing, the court light at trial their decision in viewed II: restraint,” not the “visibility of the in Stephenson’s At the time of defendant’s effect"on the potential “belt’s ruling had ad- no -in the ability participate demeanor and inAs of stun belts. the use dressed in just as it had Wrinkles defense.” And Wrinkles, faulted for cannot be counsel concluded that Wrinkles’s the court more visible belt over selecting the failing not be faulted counsel could shackles, case law ad- given that would cred- prejudice the court predict the largely focused the issue had dressing banning stun belt. not, restraint, and visibility of the reading, benefit of this Even with the out, pointed later as Wrinkles unreasonably Supreme Court on the defendant’s effect potential belt’s applied evaluating Strickland ability participate demeanor II. attorneys’ performance the defense. what itself fell below The failure on to charac- The court went Id. at 1032. norms, re- professional expected under at- made Wrinkles’s terize the decision A theory prejudice. gardless “only torneys a “tactical decision.” cannot be of restraint policy blanket was sentenc- in trial real issue” Wrinkles’s at the time of case law squared with the challenge the belt decision to ing, so “[t]he propriety notwithstanding But the trial. range, tactical fell into arguably the [there] conclusion, that it is evident of the court’s against of success balancing likelihood finding that the make a the court did not judge by chal- alienating the the risk of ” Instead, belt. jurors had seen the stun Be- Id. ‘policy.’ announced lenging an II was reconstruct- the court Wrinkles case, “vig- guilt was Stephenson’s cause coun- by made Wrinkles’s ing the decision classification orously “tactical” disputed,” form of then-established sel based on the on to The- court went apply. could stun belt. with the prejudice associated belt, per- if of a stun hold that “use of the court’s of the nature light the results all by jury, produces ceived reasoning in discussion a careful ex- does.” After shackling that under record, implausibility and the Stephenson, post-conviction of the amination the Indiana that Indiana law of court concluded Stephenson we con- findings, factual making implicit of the stun belt. jurors been aware clude that Nonetheless, Stephen- upheld the court jurors finding of fact that not make a sentence be- and death son’s convictions controlling the stun belt. had seen requi- not demonstrated cause he had by tured interpretation of facts are those set forth findings the Indiana Su- adopted by court and post-conviction preme opinion, Court’s with which not findings II court. These respondent the Wrinkles even the agrees, does the ma- fact determined that the did not see jority conclude that Wrinkles prej- was not Additionally, has stun belt. attorneys’ udiced his error. I would us- presented with evidence to not wager a man’s life on the correctness demonstrate that the stun belt affected his majority’s of the grammatical parsing, and properly participate in his own abilities therefore I respectfully dissent. jurors defense. Without evidence that the During the state postconviction proceed- saw the stun or that he was otherwise ings, Wrinkles submitted affidavits from trial, throughout affected the stun belt jurors that, two who during attested prejudice.

Wrinkles cannot demonstrate trial, they were “aware” that Wrinkles was Strickland, See 466 U.S. at wearing juror a shock belt. One “be- 2052. He therefore cannot show that he jurors that a bailiff told lieve[d]” counsel, ineffective assistance received belt and the other was unsure how he requisite so he cannot demonstrate the became aware but judge “believe[d]” prejudice necessary cause and to overcome jurors. told the juror (juror A third Guest, procedural default. 474 F.3d at Kraft) attested that she was aware of the Thus, procedurally this Court is belt and even saw it on examining freestanding barred from trial; she described the belt looking deny claim and stun-belt must the writ. like a cummerbund. Kraft also stated that III. Conclusion she have become aware of the belt after the trial newspaper from a article. The decision of the district court Af- Despite ample investigate pre- time to firmed. counter-affidavits, pare the state submitted ROVNER, Judge, dissenting. Circuit one, from one of the three bailiffs who worked at Wrinkles’s trial. The bailiff I agree my colleagues that Mat- attested that he never communicated to trial thew Wrinkles’s were defi- wearing Wrinkles was failing cient court’s however, Nothing, belt. contradicted insistence on the of restraints absent use. jurors’ testimony they the three knew judicial findings presented belt; only about the how each learned of it security threat or required otherwise open question. Despite remained physical restraints. I cannot agree, how- testimony by all three ever, that prejudiced by Wrinkles was not belt, nothing knew about the stun and with reading error. The natural of counsels’ contrary, in the record to the the postcon- of opinion jurors viction court found that were jurors II that Wrinkles is several were not aware of the stun belt. The court aware of the stun belt the trial. reasoned that the affidavits were not credi- light finding, of that Wrinkles has shown ble of and accompa- both the inherent that because inconsistencies because jurors subject nies visible restraints and other detriments were not to cross-exami- specific Only through to his case. a tor- nation.1 explain why duly penalty perjury.

1. The court also did not it credit- are sworn under the affidavit, ed the bailiff's which was also They prepared years were four after the trial. subject to cross-examination. The affidavits II). (Wrinkles (Ind.2001) The contested vigorously best, it ambiguous at postconvic- moved statement finding. He court’s recapit- court’s interpreted as the the evidence could be reopen tion court the rec- error, arguments. supplemented ulation of one Wrinkles’s correct juror affidavits. However, interpreta- proffered additional ord with four Wrinkles’s affiants, original Kraft, three tion, of the believed supreme one that the court itself that “no dur- doubt” conspicuous, that she is also clarified that the stun was she saw knew the belt specifi- she ing the court did not plausible because belt, although she was awas stun cally ascribe that assertion Wrinkles.2 by that came to how she still naturally unsure as an reads more The sentence jurors at- Three additional knowledge. by the court that seven acknowledgment the belt they were aware tested that the belt. jurors were aware of could recall trial, none although during the criti- mention of the The court’s second Two of information. of that the source It first ambiguous. is not cal factual issue that detail the additional supplied them counsel, lacking Wrinkles’s that states the belt could be that they understood decision ban guidance of the later stun Finally, remotely by deputy. activated reasonably chose between outright, belts ju- additional filing, one supplemental in a belt based on the effect shackles and stun the stun belt that she saw ror attested jurors. Id. at might each have court postconviction trial. The during the be- continues: court “Counsel issue and denied revisit the declined to seeing that chance of the lieved motions. the other fairly high. On shackles was appeal to the argued on hand, for the belt be- opted counsel that Supreme Court Indiana thought jurors that would not cause the stun were unaware that Obviously, they it. were be able to see opinion, In its belt was erroneous. However, at the time proven wrong. later accepted implicitly made, prudent the decision was in- by making statements argument added). Given the one.” Id. (emphasis court’s postconviction with the consistent sentence, sentence italicized preceding the. about the stun knew finding. If acknowledgment by an must be read as belt, presume we must that, supreme despite counsels’ interpretation and so the prejudiced, the stun belt pretrial predictions subject on this statements supreme court’s undetected, n jurors indeed go some of this case. is the linchpin aware of it. were issue, reference In its first however, majority, concludes “Wrinkles Supreme Court stated: wrong” in proven “later the stun utilization of asserts that choice of their decision to evaluate “the at least seven conspicuous to which was juror-preju- through the lens of in- restraint presumption jurors, undermined order to alone.” 820.’ In dangerous dice Ante him appear nocence and made result, my col- at tortured jurors arrive this of the front and uncontrollable pages no less than ten leagues devote he would help decide who would whether describe, as “Our State, fittingly,. what or live die.” Wrinkles argu- out, immediately preceding claims” ante at 815 n. majority points 2. As the consistently used supreme court otherwise ments. or "He language “Wrinkles contends” such as restraints, ‘Obviously, they supposed policy requiring were later Reading of ” proven wrong.’ objection wearing Ante 818. sub “an restraints would apt because it is the heading particularly is by not have been sustained trial judge majority majority’s interpretation and the even if made.” Wrinkles 749 N.E.2d at argument, At even the alone. oral State Thus, Supreme the Indiana deny that Indiana did not the statement excused counsels’ failure to know the law supreme that means believed illogical with the reasoning that the trial aware of the belt. judge’s illegal policy obviated the need for Cf. Corp., Mgmt. McCaskill v. SCI 298 F.3d objection. an (7th Cir.2002) (“The 677, 680 verbal admis view, Given this it would make no sense by argument sion counsel at oral is a SCI’s Supreme for the Indiana Court to in the judicial admission, binding the same as same breath conclude that counsel were other formal concession made proven wrong” “later to have evaluated the Instead, proceedings.”). course of solely through situation the lens of Wrin- “an State characterized this as appearance jury. Quot- kles’s before the supreme aside” the court inserted while ing piece a disputed sentence and making that “the fact that point later adding then on its own “clarification” the it ... have seen doesn’t majority up comes with the following con- matter for counsel’s decision at the time he “Thus, ‘[ojbviously, they clusion: were la- Indeed, made it.” nowhere in its brief proven wrong’ ter to have evaluated the passage does the mention the of the State through choice of restraint the lens of opinion Indiana Supreme Court’s that di juror-prejudice Nonetheless, alone. be- fact panel, vides the which makes the cause the could not be faulted majority’s ten-page analysis disput failing predict for prejudice the form of See, extraordinary. all passage ed the more II,’ announced Wrinkles at the time the Int'l., Inc., e.g., Adagen Kochert v. Med. ” made, prudent decision was it was a one.’ (7th Cir.2007) (Plaintiff 491 F.3d being “proven wrong” Ante at 820. But raise, “did not much develop argu less possibility about the the defendant ment, undeveloped arguments are would be prejudiced seeing waived.”). nearly him restrained is a nonsensical con- my colleagues, Then who accuse Wrin- all, cept. After the fact that the Indiana context, taking kles of the statement out of emphasized Supreme Court the effect of proceed rearrange paragraph the entire (a the restraint defendant form of to reach the conclusion that the Indiana not, prejudice long-recognized, as both explaining why Court was “coun- my colleagues Court and sel’s decision to choose the stun belt was a believe, a proposition) seem to novel as ‘prudent though attorney’s one’ even to the opposed occasioned proven wrong’ were ‘later to examine their jury seeing the belt does not mean that solely choice based on ‘the effect ” prejudice from visible restraint is no jurors.’ Ante 819. Not does this legitimate concern of counsel— longer sense, interpretation common strain i.e., “wrong,” would be counsel supreme inconsistent with the court’s anal- majority suggests, considering ysis majority of counsels’ decision. As the prejudice. form of That borders on the concedes, Court er- absurd. roneously concluded that counsel were not failing majority deficient for claims strained inter- its light pretation plausible light belt because of the trial court’s is the more one to the trial court’s law, to defer no reason and sec- first, procedural Indiana Finally, supreme the court interpretation. Court’s subse- ond, Supreme the Indiana the fac- inconsistent with As for state Stephenson. made statements decision quent court. law, postconviction indeed to be the finding seems odd tual procedural Supreme the Indiana is the only logical whether conclusion assessing The rules procedural supplemented its own the breached Court Court Indiana see, claim, habeas of a federal that a number the context record with its own 409 F.3d Deppisch, v. McCloud e.g., that Wrinkles was jurors were aware Cir.2005) (construction (7th of state 875-76 by a stun belt. restrained proceeding), in habeas irrelevant law a con- that such majority protests The law saying that state without goes where it “[h]ere, because, drawn clusion cannot be Conversely, for relief. cannot be the basis post-convic- appeal did not Wrinkles to a on the answer if turns our decision the additional refusal to admit tion court’s law, something amiss. state question of (em- evidence,” at into ante affidavits additional affidavits On the issue only is this original). Not line phasis in the to have admitted sought simply herring, it is argument red court, at the state conceded postconviction fact, appeal untrue. Indiana that the argument oral refusal to admit court’s post-conviction “in some those affidavits reviewed Specifically, affidavits. additional and un- both unusual fashion.” It seems to the Indiana appeal brief on analyze whether we believe helpful to at- Supreme Court states “Wrinkles is allowed under Supreme Court Indiana four ad- to admit tempted affidavits precisely what the state law to do jurors who knew Wrinkles ditional Moreover, do not it did. I concedes er- court post-conviction The restrained. are affidavits determi- think the additional sup- roneously motion denied Wrinkles’ could Supreme Court native—the Indiana these affidavits.” the record with plement postconviction easily rejected have (Brief 6,n. at 19 Petitioner-Appellant affi- on the three conclusion based court’s Indiana, No. 82C01-9407- record, making in the indisputably davits CF-447.) that, contrary to The fact with whether majority’s preoccupation otherwise, repeated insistence majority’s authority under had the supreme court placed issue at see ante the additional affidavits law to review Supreme Court makes before the Indiana irrelevant. largely jurors’ aware- to the reference court’s unlikely interpretation majority’s straightfor- all the more ness of the belt First, context. ignores procedural also ward. presented to squarely the factual issue was Moreover, whether the Second, the Supreme Court. formally admit the did or did it reviewed seven suggested that all deter- way is in no as affidavits additional postconviction despite the juror affidavits suggest. my colleagues minative so; to the to do it referred court’s refusal originally admit- that were three affidavits to “at least seven” being conspicuous jurors’ knowledge of all establish the ted II, 749 N.E.2d jurors. See Wrinkles belt; vigorously and Wrinkles the stun Third, because no testified properly court in a supreme argued supreme hearing, postconviction postconviction appeal preserved disadvantage compared at no court was clearly erro- finding was contrary credibility court’s evaluating the trial court in alone estab- Those three affidavits statements, is neous. and so there jurors’ jurors’ knowledge; only it is the unrelated proceeding. supposedly lished the knowledge “comparable” of that that was unclear. majori- source case relied on testimony ty of attor- Neither point. —Tibbs—demonstrates (regarding visibility) the belt’s nor neys Supreme There United States (re- the affidavit from one the bailiffs3 referred to a pronouncement by later ju- garding Supreme his own communication with Florida ambigui- Court to resolve possible case; in addressing ty opinion rors and not other the earlier in the same source) sure, jurors’ testimony contradicts the subsequent pronouncements be in that knew about the belt. And the the same case illuminate the basis of produce single state did not counteraffi- a state court decision—as in Tibbs when a juror davit from a who was not aware of case is reversed and then retried and the stated, I appeal the belt. As have to the extent court in the second comments on its testimony by jurors, in there was no oral rationale the first appeal. using But an subsequent and the issue was decided on basis unrelated state opinion alone, affidavits there is no reason to interpret meaning of case-specific postconviction as, to the court’s inter- in a language previous defer case strikes me pretation testimony of the written over the if unprecedented (certainly majori- ty points scenario), Court’s. truly analogous no highly unusual.

The Indiana Court’s discussion events, Stephenson II in likewise does At all Stephenson hardly so nothing plain language to undercut the illuminating majority suggests. My as the In a disputed passage. confusing pas- colleagues point out that Stephenson why sage “explaining” reasoning devoted “obvious- “tracks” the II ly, they proven wrong” by recreating were later means facing the decision Wrin- than wrong about some other issue the one kles’s counsel at the time and their con- sentence, in preceding jury identified cern with whether the would see the majority yet resorts to another Indiana opposed belt as to what effect the device But it Supreme Court case on stun belts. would have on Wrinkles. But the fact that Stephenson, is unclear how which does in- repeated II, any light Stephenson deed discuss sheds its mistake Wrinkles —ex- jurors cusing objectively per- on whether the court believed the counsels’ deficient light meaning knew about the stun belt in Wrinkles’s formance —sheds no majority explains “obviously, they proven case. The first its reli- of later Stephenson by analogizing wrong.” Notably, Stephenson ance on it to a the court in ensuing supreme jurors situation where “an concluded that the in that case did disputed finding despite court decision affects a see the defendant’s stun belt. But previous reasoning decision.” Ante at 821. But the discussion that “tracks” its examples provide precedent cited no the court nowhere distin- resorting opinion clarify guishes to a later Wrinkles II on the basis that the earlier, in an in that about the state court’s fact case did know Notably, although majority emphasizes another bailiff took over his duties affidavit, testimony the bailiff's his sworn time. Nor was this bailiff the one as- trial; “sequestered signed he was with the for the thus there is little to the postconviction suggestion entire duration of the trial’’ was later shown court's eventually to be inaccurate. That bailiff sub- bailiff’s affidavit contradicted Kenneth supplemental clarifying mitted a he "the bailiff” affidavit Ranes’s affidavit that believed temporarily he was the trial and about the belt. absent from told 828 restraint.”). physical in a condition of total explicit Stephenson’s

stun belt. were aware of Mo., 622, 631, in that case that the 125 In Deck v. not lead the court to the stun belt still 2007, (2005), 161 L.Ed.2d 953 “ deficient. counsel were See conclude that ‘ancient’ Supreme Court refers to the If N.E.2d 1034-40. Stephenson, 864 English forbidding rule” shackles repetition in supreme court’s anything, the compelling justification bonds absent —a regarding coun- Stephenson of its mistake part in out of concern that the rule formed that the court confirms sels’ effectiveness restraints not interfere with a defendant’s failed, Stephen- II and in both Wrinkles “ ‘If presentation of his defense: felons son, to re- that failure to see answer, judgment in ... come particularized imposed without straints irons, be out of and all manner of shall objectively defi- justification amounts bonds, shall not take pain so that their inability court’s representation. cient reason, away any manner of nor them it Stephenson this in makes appreciate answer, constrain to their free but recognized in all the more obvious Deck, 626, will.’” See 544 U.S. at 125 of II that the were aware Coke, (quoting S.Ct. 2007 3 E. Institutes fact of erroneously deemed that but Lastly, Allen England). the Law misplaced focus on light of its irrelevant of points out that the use of visible restraints trial court would have the fact that objection to the (incorrectly) dignity judicial pro overruled an an affront to the is Compare 749 Allen, 344, belt. ceedings. 397 U.S. at 90 S.Ct. Stephenson, at 1195 and 864 N.E.2d Thus, onward, at least from Allen at 1040-41. N.E.2d recognized have three distinct courts Finally, majority places great weight flowing from the use of visible re harms (1) on the fact the Indiana prejudice jury’s impar straints: to the considering the “choice re- Court (2) tiality, prejudice to the defendant’s attorneys at trial facing straint (3) defense, ability to participate only theory prejudice light of damage dignity proceedings. ” jurors.’ ‘effect on the then available—the See, Deck, 630-32, e.g., 544 U.S. at 125 majority nor Ante at 819. But neither (recognizing “three S.Ct. 2007 fundamen is correct that ” “judi legal principles animating tal impartiality was the jury’s diminished restraints) hostility” cial towards visible form of only legally recognized added); Israel, (emphasis Harrell v. 672 trial. Both the at the time of Wrinkles’s (7th Cir.1982) 632, (citing F.2d 635 & n. 3 Supreme Court and lower United States support given Allen to three reasons long recognized that the harm courts have restraints); against physical rule from restraints is threefold. flowing visible (Ind. State, 167, Coates v. 487 N.E.2d 169 potential In addition to the effect (recognizing that dis App.1985) restraints jury’s impartiality, “thought process”); tract defendant’s Peo recognized 1970 that restraints inter- Brown, 24, ple Ill.App.3d v. 3 Ill.Dec. to assist in right fere with the accused’s (Ill.App.1977) Allen, v. his defense. See Illinois U.S. of re (recognizing prejudicial effect 337, 344, 1057, 25 L.Ed.2d 353 defendant, jury’s feelings straints on about (1970) (“[Ojne primary of the defendant’s impair possibility shackles trial, advantages being present at the ability counsel, defendant’s to communicate ability with his to communicate counsel, and the fact that shackles detract greatly when the defendant is reduced (7th Cir.2000); Buchler, judicial pro- Sprosty 592-93 “dignity and decorum (7th cess”). Cir.1996); 79 F.3d Holland v. (7th McGinnis, 963 F.2d Cir. Thus, majority’s no for the there is basis 1992). finding jurors that some knew away import the clear explain to attempt amply supported by about the stun belt is “[ojbviously, they were later phrase record, and we must defer to it. See that wrong” by reasoning proven 79 Sprosty, (presumption F.3d 643 must have been Supreme Court applies “implicit correctness to resolution that predict failure to excusing counsels’ in dispute fairly of a factual that can be day one the effect on a defendant would record”). the state court ferred from legal forbidding rationale the use become contrast, majority, post- like the state at trial. That rationale was of restraints court, point conviction can to no record available to counsel at the time Wrin- supporting the that evidence conclusion trial. And the fact that counsel kles’s jurors were not aware of the belt. long- was in fact a “predict” failed to what Instead, up unlikely interpre it shores its remotely surpris- rule of law is not settled foray tation into positing state law post- trial counsel testified at the ing: lead law, that under the Indiana Su that, hearing “I did not know conviction preme probably Court do what If shackling.” was a law about that there suggests common sense that it did when it Supreme anything, the Indiana Court’s attorneys commented that Wrinkles’s acknowledge longstanding failure to not think would see the stun belt that also recognition restraints “they proven wrong.” but were later in his ability participate the accused’s to simply reaffirms that the Indiana defense course, even that some Of unreasonably applied Supreme Court were aware of stun belt did not lead v. clearly established law. Williams Cf. Court to conclude 362, 407, 1495, Taylor, 529 U.S. that were deficient Wrinkles’s (2000) (state 146 L.Ed.2d 389 court unrea- conclusion, failing object. to That sonably Supreuso precedent applies Court rightly rejected by my colleagues, large- “unreasonably to extend” a when it refuses ly based on the court’s determination legal principle “to a new context where objection would have been futile due to recently rec- apply”). should As this court practice routinely re- the trial court’s just “law” refers not to ognized, restraints, quiring as well as the fact that de- holdings, “legal principles but Court in I will guilt question. Wrinkles’s was not in holdings rived from the of that not dwell on the erroneousness Frank, 566, v. 525 F.3d opinions.” Samuel analysis, emphasizing but it is worth Cir.2008). (7th Thus, the fact that object for the record obligation counsel’s earlier law not have addressed stun more, less, judge urgent where the opposed to restraints particular belts extralegal an burden on Wrinkles imposed generally consequence. is of no justify it. attempting without even Moreover, object— counsels’ failure to obligation It is well established that our probable ruling findings to defer to the factual of state whatever —contributed large part procedural hurdles appellate courts extends to courts. See Mata, 539, 546-47, get now must clear order Sumner v. relief, (1981); their error. The ma- compounding L.Ed.2d 722 Miranda (7th concludes, therefore, Leibach, jority appropriately 394 F.3d Cir. 2005); were deficient for Schomig, Mendiola v. 224 F.3d counsel Wrinkles’s situation cannot be distin- to the use of restraints failing addressing from the line of cases justification. guished without the stun belt was restraints because visible ways with the Indiana Su- parting After only meaningful “visible” sense prong first preme Strick- any juror who was aware that he was land, however, majority then relies on Davis, restrained. See Roche v. 291 F.3d interpretation of that Court’s strange its (7th Cir.2002). sense, In this finding to conclude factual majority yet upon has seized another red attorneys’ fail- prejudiced was not herring, repeatedly referencing Wrinkles’s object. evidence that the ure to “Without inability to that the belt was “vi- establish belt, or that he jurors the stun saw See, 806-07, e.g., sible” or “seen.” ante at by the stun belt otherwise affected 810, 811, 3, 815-16, n. But 812 819. trial, cannot demon- throughout prejudice by course the caused restraints Ante at prejudice.”4 strate 823. Con- them, jurors’ knowledge stems from the by strained Court’s “visibility,” not their and the false distinc- jurors finding that a number of knew majority tion the throughout weaves its about the stun belt as well as the record is an unfortunate distraction. opinion that the belt did indeed af- evidence stun trial, jurors’ throughout fect I would Given the awareness of the every type of that the reach a different result. Court has associated with the use of re- that visible long It has been established First, implicated straints is in this case. prejudicial are restraints are so message by sent restraints —that permissible only “special where a need” is judicial system already itself believes the Deck, 626, present. 544 U.S. at 125 S.Ct. uncontrollably danger- defendant to be 2007; 560, Flynn, see Holbrook v. presumption ous—undermines of inno- 568-69, 1340, 106 89 L.Ed.2d 525 S.Ct. Deck, 630, cence. at 125 U.S. Allen, (1986); 344, U.S. at 90 S.Ct. Although 2007. admitted to kill- prohib 1057. Routine use of is restraints victims, ing had to decide ited; employment preceded their must be committed, what level of homicide he had by judicial that an essential state prove and the burden was on the state to security, physical escape interest such as knowing that he committed murder. prevention, or courtroom decorum re homicide, jury’s decision on the level of on a quires particular the use of restraints guilt, much as other determination of Deck, 628, defendant. See 544 U.S. at by could be knowledge tainted their “inherently prejudicial” are S.Ct. 2007. So belt. Holbrook, restraints, at visible U.S. Second, preju physical that no “actual 106 S.Ct. restraints can interfere by a ability participate dice” need be demonstrated defen with the defendant’s asserting deprivation process of due own dant defense. Id. use, Deck, unjustified example

based on their 544 2007. The most obvious of that in 635, 125 attorney U.S. at S.Ct. 2007. this case is when Wrinkles’s already majori- I have commented that ment that Wrinkles is “without evidence” that ty’s interpretation (the of the Indiana appropriate knew about more term Court's on this matter strains cre- statements "saw”) wholly than inaccu- stun belt But, dulity. juror in the face of affidavits rate. record, majority's admitted into the state- dangerous that the defendant is a individu- any sudden to “make him warned controlled, asking an to Wrinkles al who be idea that response cannot moves” defense.”) while testi- put devastating his hands could be to his he should where heels of came on exchange This renewed fying. prejudice was sentenc- through when the midway an incident who were ing phase, when the had to be “buzzing.” The trial began aware of stun belt had to decide belt was a result and same halted as imprison- death or whether to recommend investigation after on Wrinkles put back believing ment while Wrinkles was still by a buzzing that the was caused revealed Particularly dangerous. violent and where this incident and battery. No doubt low mitigating factors far outnumbered the unannounced, un- fear of an the constant aggravating allowing one factor for the 50,000-volt impaired shock stoppable Roche, penalty, death see F.3d in his de- ability participate potential influence of the stun belt attor- surprisingly, Wrinkles’s fense. Not Accordingly, I cannot be overstated. must “petrified” his client as ney described prejudiced conclude that Wrinkles was accompanied the “buzz- the vibrations to the the failure of his Third, judicial dignity of belt. ing” use of a stun belt. participant a suffers when proceedings accept my if I could col- Finally, even 631-32, 125 S.Ct. Id. at in restraints. characterization leagues’ strained due trial had to be halted 2007. That the on Court’s statements provides a stark “buzzing” belt’s belt, I visibility of the stun would find this last concern. example of their reflexive conclu- accept it difficult to by restraints is prejudice inflicted The prejudiced. not sion that was as dangerous a case such particularly jurors’ awareness of restraint this, factor have been where one could aside, argues also that he could and jury guilt in both the decisive for meaningfully participate and fully given the penalty phases nature strapped trial to a torture device. while appel- defense. As strength of Wrinkles’s logical application was a argument This the use of the belt explained, late counsel re- existing Supreme precedent on theory of defense: negated the entire straints, counsel would competent dangerous not a or vio- response it in surely have raised “snapped” by nature but had lent person majority illegal “policy.” trial court’s extreme circumstances such under dismissively that Wrinkles did concludes family, a recent from his separation bitter that the stun present “evidence” psychiatric to a involuntary commitment participate in his “affected abilities to In- drug facility, and a severe addiction. defense,” Not ante at 823. own deed, evidence was adduced sufficient (see present evidence discussion he such voluntary man- jury instruct 830-31), in view a court need my heat”) ante (which entails “sudden slaughter common sense when con- not abandon its to know- homicide and reckless addition wear, being forced to sidering whether Surely presumption ing murder. a device that justification, with no delivers require as to dangerous was so 8-second, 50,000-volt unstoppable, an would make conviction restraints partic- affect a defendant’s might shock likely might knowing murder more than demeanor, and, relatedly, the ipation alone. based on the evidence have been (visible of him. For this rea- Harrell, jury’s impressions re- 672 F.2d at 637 See son, because of the importantly and more “could instill in the belief straints jurors’ stemming from the awareness that Wrinkles restrained respectfully I dissent.

with a stun America,

UNITED STATES

Appellee, JENNERS, Appellant. M.

John

No. 07-3512. Appeals, States

United

Eighth Circuit. May

Submitted: 2008. Aug.

Filed:

Case Details

Case Name: Wrinkles v. Buss

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 12, 2008

Citation: 537 F.3d 804

Docket Number: 05-2747

Court Abbreviation: 7th Cir.