Whatley v. Warden, Georgia Diagnostic and Classification Prison ( 2021 )

Cite as: 593 U. S. ____ (2021) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
FREDERICK R. WHATLEY v. WARDEN, GEORGIA
DIAGNOSTIC AND CLASSIFICATION PRISON
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 20–363. Decided April 19, 2021
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, dissenting from denial of certiorari.
A jury sentenced petitioner Frederick R. Whatley to
death the morning after watching him reenact a murder
while wearing unnecessary leg irons and manacles. When
the State called Whatley to the stand during the sentencing
proceeding, his attorney waved away the prosecutor’s con-
cerns about the visible shackles, then sat silent when the
prosecutor handed Whatley a fake gun and asked him to
reenact the murder for which he had just been convicted.
Defense counsel’s unreasonable failure to object to What-
ley’s shackling was plainly prejudicial under this Court’s
precedent. I would grant the petition, summarily reverse,
and remand for a new sentencing proceeding.
I
Following Whatley’s conviction for robbing and killing
the owner of a Georgia bait shop and liquor store, the State
asked the jury to impose a sentence of death. The sentenc-
ing proceeding involved just one day of evidence. The State
relied on two, conceded statutory aggravating circum-
stances: Whatley committed the murder (1) during an
armed robbery, Ga. Code Ann. §17–10–30(b)(2) (Supp.
2019), and (2) after having “escaped from [a] place of lawful
confinement,” §17–10–30(b)(9), because he had walked
away from a halfway house to which he had been paroled a
few months earlier. The State further showed that Whatley
had prior convictions for forging a check, threatening a man
2 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND
CLASSIFICATION PRISON
SOTOMAYOR, J., dissenting
with a shotgun and taking his wallet, and simple assault.
Finally, the State elicited testimony from a sheriff ’s deputy
that Whatley once wondered aloud whether he would miss
the Super Bowl while in custody. Electronic Case Filing in
Whatley v. Upton, No. 3:09–cv–00074, Doc. 7–9, (ND Ga.,
July 28, 2009) pp. 15, 22 (ECF). This, the State argued,
proved Whatley felt no remorse for his crimes. ECF Doc. 7–
11, at 31.
Defense counsel called a number of Whatley’s friends and
family, followed by Whatley himself. Whatley had worn
shackles throughout the guilt phase, but the court took care
to ensure the jury did not see the restraints. See, e.g., ECF
Doc. 7–5, at 110, 135–138. When defense counsel called
Whatley to testify at sentencing, the prosecutor sensibly
asked if the court needed to “take the jury out before he
takes the stand” in light of the “chains” and “shackles on
him.” Defense counsel waved off the prosecutor’s concern.
“Well, he’s convicted now,” he shrugged, referencing the
jury’s earlier guilty verdict. The trial court echoed that con-
clusion: “He’s been convicted.” ECF Doc. 7–9, at 106. The
court never found that the restraints were even necessary,
much less that there was no way to hide them from the jury.
Whatley hobbled to the witness stand. His leg irons and
cuffs were in plain view. He testified for several hours in
those restraints. Among other things, Whatley contested
the State’s version of the shooting for which he had been
convicted. The State claimed that Whatley tried to execute
the witnesses to his crime after the storeowner gave him
the money, shooting the owner in the chest and nearly
shooting an employee but hitting the counter instead. The
storeowner, mortally wounded, pulled his own gun. What-
ley ran, and the two exchanged shots in the parking lot be-
fore the owner died. Whatley, however, testified that the
storeowner pulled a gun immediately after giving him the
money, and Whatley reflexively fired a single shot that hit
the counter before running away. The owner gave chase,
Cite as: 593 U. S. ____ (2021) 3
SOTOMAYOR, J., dissenting
and Whatley killed him during the shootout outside.
On cross-examination, the prosecutor asked Whatley to
“step down” from the witness box to demonstrate his ver-
sion of events. The prosecutor handed Whatley a “toy pis-
tol,” noting, “Now, this is not the type of gun you had that
day. I hope you’ll understand why I don’t want to give you
a real gun.” ECF Doc. 7–10, at 13. He told Whatley to
“show this jury how you held a gun on [the victim] and told
him to give you that money. Now, you go ahead and show
them. You pretend I’m [the victim]. You pull the gun on
me and show them how you did it.” Id., at 14. With no
objection from his attorney, Whatley reenacted the armed
robbery and shooting, shuffling around the courtroom with
shackles on his legs and waving the gun around with cuffs
on his wrists. The prosecutor maintained a running com-
mentary. See ibid. (“Show me how you pointed it at him”);
id., at 15 (“I want you to point the gun at me just like you
did him that day”). He ended his cross-examination shortly
thereafter. Id., at 19. Defense counsel never objected.
The next morning, the prosecutor argued in closing that
the jury should sentence Whatley to death primarily be-
cause he posed a severe threat of future violence. See, e.g.,
ECF Doc. 7–11, at 20 (“[I]f you think that a guard gets be-
tween him and life and he won’t kill a guard, you’d better
think again”). The court gave no curative instruction about
Whatley’s shackling. The jury deliberated for 90 minutes
before recommending the death penalty.
On direct appeal, the Georgia Supreme Court found that
Whatley forfeited his claim that his visible shackling vio-
lated his due process rights because his lawyer affirma-
tively waived any objection despite the prosecutor’s stated
concerns. Whatley v. State, 270 Ga. 296, 302, 509 S. E. 2d
45, 52 (1998).
Whatley then filed a state habeas petition, arguing that
his trial attorney’s failure to object to his unnecessary
shackling constituted ineffective assistance of counsel. The
4 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND
CLASSIFICATION PRISON
SOTOMAYOR, J., dissenting
Georgia Supreme Court rejected the petition. Whatley v.
Terry, 284 Ga. 555, 571–572, 668 S. E. 2d 651, 663 (2008).
While acknowledging that unnecessary shackling is pre-
sumptively prejudicial when an objection is properly pre-
served, the court held that defendants retain their burden
to show prejudice when they claim trial counsel was inef-
fective for failing to object. Ibid. The court summarily con-
cluded that Whatley had not made that showing. Ibid.Whatley filed a federal habeas petition, arguing that the
state court’s denial of his ineffective-assistance claim was
contrary to and an unreasonable application of clearly es-
tablished federal law. The Eleventh Circuit disagreed. 927
F. 3d 1150, 1184–1187 (2019). The court explained at
length why Whatley was not entitled to a presumption of
prejudice, and then determined in one short paragraph that
Whatley’s “violent criminal history” and failure to “turn
things around,” together with the crimes at issue, rendered
the shackling “trivial.” Id., at 1187.
Judge Jordan dissented. In his view, the state court’s rul-
ing might have been reasonable “had the shackles merely
been visible to the jury when Mr. Whatley walked to the
witness box. Or if the trial court had given a curative in-
struction to the jury about the restraints. Or if Mr. Whatley
was not forced to re-enact the murder in front of the jury
while the prosecutor played the role of the victim. Or if the
prosecutor had not explicitly made Mr. Whatley’s future
dangerousness a key theme in favor of his request for
death.” Id., at 1193. But with these facts taken together,
prejudice was “undeniable.” Ibid.II
To succeed on an ineffective-assistance-of-counsel claim,
Whatley must show that his counsel’s deficient perfor-
mance prejudiced him. Strickland v. Washington, 466 U. S.
668, 688, 694 (1984). Prejudice means a “reasonable prob-
Cite as: 593 U. S. ____ (2021) 5
SOTOMAYOR, J., dissenting
ability that, but for counsel’s unprofessional errors, the re-
sult of the proceeding would have been different.” Id., at
694. Because Georgia requires unanimity to impose a cap-
ital sentence, Whatley need only show a reasonable proba-
bility that one juror would have voted against the death
penalty absent his counsel’s deficiency.1 See Wiggins v.
Smith, 539 U. S. 510, 537 (2003). However, relief is only
available under the Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA) if the state court’s conclusion that
any deficiency was not prejudicial “was contrary to, or in-
volved an unreasonable application of, clearly established
Federal law.” 28 U. S. C. §2254(d)(1). Under this standard,
federal courts do not defer to a “state-court decision that
correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.”
Williams v. Taylor, 529 U. S. 362, 407–408 (2000).
III
A
This Court long ago recognized that “no person should be
——————
1 Georgia argued in state court that “counsel should not be regarded as
having performed deficiently by failing to object to the shackling, because
the practice had not yet been established as unconstitutional.” Whatley
v. Terry, 284 Ga. 555, 571, 668 S. E. 2d 651, 663 (2008). The Georgia
Supreme Court all but rejected that argument, as it “had already
strongly suggested in dictum that it was unconstitutional to place visible
shackles on a death penalty defendant during the sentencing phase with-
out a showing of particular need.” Ibid., and n. 38 (citing Moon v. State,
258 Ga. 748, 755, 375 S. E. 2d 442, 449 (1988)). Given its conclusion on
prejudice, however, the court simply assumed deficiency. 284 Ga., at
571, 668 S. E. 2d, at 663. The State wisely does not raise this issue here.
In addition to state-court decisions, this Court had several times empha-
sized the prejudicial nature of shackling, well before the trial in this case.
See Illinois v. Allen, 397 U. S. 337, 344 (1970); Holbrook v. Flynn, 475
U. S. 560, 568–569 (1986). Indeed, the prosecutor himself suggested that
the court excuse the jury so Whatley could take the stand outside their
presence, thus hiding his chains. ECF Doc. 7–9, at 106. Certainly, a
reasonable defense attorney would not have taken it upon himself to
overrule the prosecutor’s objection to the defendant’s unfair treatment.
6 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND
CLASSIFICATION PRISON
SOTOMAYOR, J., dissenting
tried while shackled . . . except as a last resort,” in part be-
cause “the sight of shackles . . . might have a significant ef-
fect on the jury’s feelings about the defendant.” Illinois v.
Allen, 397 U. S. 337, 344 (1970). “Shackling” is “the sort of
inherently prejudicial practice that . . . should be permitted
only where justified by an essential state interest specific
to each trial.” Holbrook v. Flynn, 475 U. S. 560, 568–569
(1986).
In 2005, this Court held that needless, visible shackling
at sentencing likewise violates a capital defendant’s right
to due process under the Fifth and Fourteenth Amend-
ments. Deck v. Missouri, 544 U. S. 622, 633 (2005). In that
case, Carman Deck was visibly “shackled with leg irons,
handcuffs, and a belly chain” during his capital sentencing,
over his attorney’s objection and with no finding of specific
need. Id., at 625. This Court explained in no uncertain
terms that shackling is highly likely to be prejudicial at a
capital sentencing:
“The Court has stressed the acute need for reliable de-
cisionmaking when the death penalty is at issue. The
appearance of the offender during the penalty phase in
shackles, however, almost inevitably implies to a jury,
as a matter of common sense, that court authorities
consider the offender a danger to the community—of-
ten a statutory aggravator and nearly always a rele-
vant factor in jury decisionmaking, even where the
State does not specifically argue the point. It also al-
most inevitably affects adversely the jury’s perception
of the character of the defendant. And it thereby inev-
itably undermines the jury’s ability to weigh accurately
all relevant considerations—considerations that are of-
ten unquantifiable and elusive—when it determines
whether a defendant deserves death.” Id., at 632–633
(citations and internal quotation marks omitted).
Because these prejudicial effects “ ‘cannot be shown from
Cite as: 593 U. S. ____ (2021) 7
SOTOMAYOR, J., dissenting
a trial transcript,’ ” the Court in Deck further held that
“where a court, without adequate justification, orders the
defendant to wear shackles that will be seen by the jury,
the defendant need not demonstrate actual prejudice to
make out a due process violation.” Id., at 635. The burden
instead rests on the State to prove the shackling harmless.
Ibid.B
To be sure, Deck does not require reviewing courts to pre-
sume prejudice when the defendant fails to object to his
shackling at trial. This Court has not decided to what ex-
tent such a presumption applies on collateral review, in the
context of an ineffective assistance of counsel claim. Cf.
Weaver v. Massachusetts, 582 U. S. ___, ___ (2017) (slip op.,
at 13). Both the Georgia Supreme Court and Eleventh Cir-
cuit held that the Deck presumption does not apply to inef-
fective-assistance-of-counsel claims. 284 Ga., at 571–572,
668 S. E. 2d, at 663; 927 F. 3d, at 1184–1187. That was not
a clearly erroneous application of federal law.
What was clearly unreasonable, however, was to ignore
entirely the ways in which visible shackling is likely to dis-
tort the outcome of a capital sentencing proceeding. As
Deck explains, reasonable jurors confronted with a defend-
ant in chains will assume court officials have determined
those chains were necessary to prevent the defendant from
trying to escape or attack the lawyers, the judge, or even
the jurors. Chains paint a defendant as an immediate
threat. Jurors faced with a defendant in shackles will find
it more difficult to consider the defendant as a whole person
and to weigh mitigating evidence impartially. If jurors
think the court does not trust a capital defendant to avoid
violence at his own sentencing proceeding, with his life on
the line, they are unlikely to trust him to do so while serving
a life sentence with no hope of parole. “In these ways, the
use of shackles can be a thumb on death’s side of the scale.”
8 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND
CLASSIFICATION PRISON
SOTOMAYOR, J., dissenting
Deck, 544 U. S., at 633 (alteration and internal quotation
marks omitted).
Absent a presumption, this may not matter in some
cases. Other facts may overwhelmingly suggest a defend-
ant’s future dangerousness, or the circumstances surround-
ing the shackling may indicate it likely did not matter. Rea-
sonable jurists faithfully applying Strickland in light of the
observations in Deck might then disagree about whether
counsel’s failure to object may have caused prejudice. Un-
der AEDPA, federal courts should defer to state-court deci-
sions finding no prejudice in such cases.
That is not what happened here. For the grand finale of
his cross-examination, the prosecutor handed Whatley a
fake gun and had him reenact the murder, with the prose-
cutor playing the victim. Whatley’s chains clanked and rat-
tled with every move, constantly reminding the jury that
the court apparently believed he might do more than just
pretend to kill someone in the courtroom if left unre-
strained. Leaving nothing to implication, the prosecutor re-
marked, “I hope you’ll understand why I don’t want to give
you a real gun.” ECF Doc. 7–10, at 13.
The prosecutor hammered this point home at length in
closing. “Frederick Whatley,” he told the jury, “is going to
kill somebody else unless you execute him.” ECF Doc. 7–
11, at 17. Prison was “only going to make him smarter and
meaner.” Id., at 27. “[D]o you think he won’t kill a guard if
that guard stands between him and freedom? He will be a
threat until the day he is executed.” Ibid. “This man should
be given the death penalty because he is dangerous, he has
had a history of violence, he’s never going to get any better
than what you’ve seen right now.” Id., at 28.
Whatley’s chains, fresh in the jury’s mind from the previ-
ous afternoon’s spectacle, powerfully corroborated the pros-
ecutor’s argument. It is hard to imagine a more prejudicial
example of needless shackling.
Cite as: 593 U. S. ____ (2021) 9
SOTOMAYOR, J., dissenting
On the other hand, Whatley’s criminal history was rela-
tively minor and largely from his teenage years. The stat-
utory aggravators in his case were less serious than in
many other capital cases.2 The State’s only evidence of lack
of remorse was that Whatley likes football. The evidence at
the sentencing proceeding also showed that Whatley’s
mother abandoned him, he never knew his father, and he
was experiencing homelessness when he committed this
crime. Whatley’s friends and family testified to his redeem-
ing qualities and begged the jury to show mercy. If Whatley
had testified free of chains, it is reasonably probable that at
least one juror would have done so.
On these facts, defense counsel’s failure to object to What-
ley’s unnecessary shackling renders his death sentence not
only unreliable, but unconstitutional. The only way to con-
clude otherwise is to disregard this Court’s clear precedent
about the likely effect of visible, unnecessary shackling. Be-
cause I would not allow the State to put Frederick Whatley
to death based on such a constitutionally flawed sentencing
proceeding, I respectfully dissent.
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2 See, e.g., Ga. Code Ann. §17–10–30(b)(7) (authorizing the death pen-
alty for those who commit murders that involve “torture, depravity of
mind, or an aggravated battery”); §17–10–30(b)(11) (authorizing the
death penalty for those who commit murder and have prior convictions
for “rape, aggravated sodomy, aggravated child molestation, or aggra-
vated sexual battery”).