Daniel v. Wyoming Department of Correcti

FILED
United States Court of Appeals
Tenth Circuit
March 10, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHN A. DANIEL,
Petitioner-Appellant, No. 07-8080
v. (D.C. No. 2:06-CV-280-ABJ)
ROBERT LAMPERT, Director, (D. Wyo.)
Wyoming Department of Corrections;
THE ATTORNEY GENERAL OF
THE STATE OF WYOMING,
Respondents-Appellees.
ORDER *
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
Petitioner, a Wyoming state prisoner proceeding pro se, seeks a certificate
of appealability to appeal the district court’s denial of his § 2254 habeas petition.
Petitioner claims that he received ineffective assistance of counsel in his direct
appeal to the Wyoming Supreme Court following his conviction on two counts of
sexual assault and a jury finding that he was a habitual criminal.
Petitioner was charged with three counts of first degree sexual assault and
one count of kidnapping. He was tried before a jury in July 1999. The court
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
granted his motion for judgment of acquittal on one count of sexual assault. The
jury was unable to reach a verdict on any of the remaining three counts, and the
trial court ultimately declared a mistrial. Petitioner’s second jury trial occurred in
August 1999. The jury convicted him on the two counts of sexual assault but was
unable to reach a verdict on the kidnapping charge. The court declared a mistrial
on the kidnapping charge and accepted the verdict. After hearing evidence of
Petitioner’s prior convictions, the jury deliberated and returned a verdict finding
Petitioner to be a habitual criminal. The court sentenced Petitioner to two
consecutive life sentences.
Petitioner then filed a notice of appeal. However, his case was not
docketed for approximately two and a half years, mainly due to delays caused by
the court reporter’s failure to provide a complete set of transcripts from both
trials. On appeal Petitioner claimed, inter alia, that this delay deprived him of his
right to a meaningful appeal and that he received ineffective assistance of trial
counsel. Among the thirteen claims of error in counsel’s representation of him at
trial, Petitioner alleged that counsel allowed him to be shackled in the presence of
the jury. Because the trial record contained no information on this claim, the
Wyoming Supreme Court ordered the trial court to conduct a remand hearing to
permit Petitioner to develop the claim.
At the remand hearing on the issue of shackling, Petitioner testified that he
was wearing ankle restraints during his trial and that on two occasions he was
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brought into the courtroom in leg restraints in the presence of potential jurors or
jury members. The private investigator retained by the public defender’s office
testified that he attended both of Petitioner’s trials and that at one trial Petitioner
was brought into the courtroom wearing leg restraints after the jury had been
seated in the jury box. The investigator could not remember whether this incident
occurred during the first trial or the retrial. The court bailiff from both of
Petitioner’s trials testified that he had been in charge of bringing Petitioner from
the holding cell to the courtroom for trial and that he did not remember any
occasions when any defendant wearing some form of restraints was brought into
the courtroom with the jury present. A jail administrator testified that it was the
trial court’s practice and policy to shackle defendants at trial who had not posted
bond. He also testified that it was court policy to bring defendants into the
courtroom and remove their handcuffs before the jury or prospective jury was
brought in.
Following the hearing, the trial court found that Petitioner was in leg
restraints during his second trial but he was not shackled in view of the jury and,
had the issue been raised, the court would have found that compelling reasons
justified the use of leg restraints. Petitioner then filed a supplemental brief
arguing that “the practice of noticeably restraining [Petitioner] at jury trial
violates constitutional rights.” (R. Doc. 5-4, at 10.) In his brief, Petitioner stated
that this standard policy violated “the guarantees of due process and equal
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protection” (Id. at 16), but his brief mainly focused on the due process claim.
The Wyoming Supreme Court held that the trial court abused its discretion
and violated Petitioner’s right to a fair trial under the Sixth and Fourteenth
Amendments when it failed to hold a pretrial hearing on whether shackling for
trial would be appropriate. Daniel v. State, 78 P.3d 205, 212 (Wyo. 2003).
However, the court held this error to be harmless, based on the trial court’s
finding that no direct evidence established the jury heard or saw Petitioner’s
shackles and also given the fact that the jury was unable to reach a verdict on all
counts at the first trial and on the kidnapping count at the second trial. Id. at 213.
The court did not explicitly consider the claim that the court’s standard policy of
shackling indigent defendants itself violated Petitioner’s constitutional rights, but
it rejected Petitioner’s other claims. On the issue of the delay in resolving the
appeal, the court concluded that Petitioner had arguably demonstrated three of the
four factors required under Barker v. Wingo, 407 U.S. 514, 530 (1972), but had
failed to meet the fourth prong of the test by showing prejudice resulting from the
delay. The United States Supreme Court denied a petition for a writ of certiorari
from the Wyoming Supreme Court’s decision, Daniel v. Wyoming, 540 U.S. 1205(2004), and the state courts denied Petitioner’s subsequent petition for post-
conviction relief.
In the instant habeas petition, Petitioner claimed that he received
ineffective assistance of appellate counsel. First, he argued that appellate counsel
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should have specifically cited to the private investigator’s testimony at the
remand proceeding that he could no longer remember whether the jury saw
Petitioner shackled at the first trial or second trial as evidence that Petitioner was
prejudiced by the delay in docketing his appeal. Second, he argued that appellate
counsel should have specifically raised an equal protection claim based on the
court’s policy of shackling defendants at trial who had not posted bond.
The district court concluded that Petitioner had not established ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The
court concluded that Petitioner’s first argument relied heavily on a string of
speculations and presumptions. The court stated that to find ineffective
assistance, it would need to speculate that the investigator would have
remembered the events if the remand hearing had been held earlier and would
have testified that the incident indeed occurred during the second trial. The court
would then need to give greater weight to the investigator’s testimony than to the
bailiff’s contradictory testimony. Finally, the court would need to presume that
the Wyoming Supreme Court would have held that Petitioner was prejudiced by
the incident at his trial. The district court therefore rejected this argument.
As for Petitioner’s second argument, the district court first concluded that
appellate counsel did raise the equal protection issue on appeal. The court also
noted that the Wyoming Supreme Court found harmless the trial court’s abuse of
discretion in failing to hold a pretrial hearing on the issue of shackling, and
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Petitioner had not convinced the court that the Wyoming Supreme Court would
have analyzed an equal protection error any differently. Moreover, the court
concluded that Petitioner’s equal protection argument would have failed because
defendants who post bond are not similarly situated to defendants who do not post
bond.
To obtain a certificate of appealability, Petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to meet this burden, Petitioner must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted).
Petitioner argues that, in rejecting his first argument, the district court
erroneously discussed a series of speculations that it was not required to make and
that had no bearing on the merits of the issue. While it is true that the district
court would not need to itself resolve these speculative issues, these issues are
indeed relevant to the correct inquiry—whether the Wyoming Supreme Court
would have resolved Petitioner’s appeal differently had counsel specifically
raised this issue. In order to conclude that Petitioner was prejudiced by counsel’s
failure to specifically cite to the investigator’s testimony as evidence that he was
prejudiced by the delay, we must conclude that the Wyoming Supreme Court
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would have found that the investigator’s failure to remember whether the jury saw
Petitioner in shackles during the first or second trial constituted sufficient
evidence of prejudice to Petitioner’s appeal to warrant relief. In order to make
this finding, the Wyoming Supreme Court would have needed to speculate
whether the investigator would likely have given testimony that better supported
Petitioner’s claims if the remand hearing had been held earlier and whether the
trial court would likely have found this testimony more credible than the bailiff’s
contrary testimony. The court would then have needed to conclude that
Petitioner’s trial was prejudiced when the jury briefly saw him in shackles while
he was escorted into the courtroom. Given this attenuation, we see nothing
debatably erroneous about the district court’s ultimate conclusion that counsel’s
failure to raise this issue did not amount to constitutionally ineffective assistance.
We also note that counsel brought the investigator’s testimony to the Wyoming
Supreme Court’s attention, although not in the context of the issue regarding
delay, and the court’s opinion shows that it was aware of the investigator’s failure
to remember the date of the incident.
As to his second claim of ineffective assistance of counsel, Petitioner
argues that the district court erred in concluding that appellate counsel raised the
equal protection claim on appeal. Petitioner does not address the district court’s
additional holding that he had not established prejudice in any event. As the
district court noted, the Wyoming Supreme Court rejected for harmlessness a very
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similar claim alleging that Petitioner’s rights to a fair trial were violated when the
court failed to conduct a pretrial hearing as to whether Petitioner should be
shackled. Like the district court, we see no indication that the Wyoming Supreme
Court would not likewise have found harmless an equal protection claim based on
the court’s policy of shackling defendants who did not post bond.
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, and the record on appeal. Nothing in these materials convinces us
that reasonable jurists could debate whether the district court’s rulings were
correct. We therefore DENY Petitioner’s request for a certificate of appealability
and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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