9th Cir.

The court of appeals reversed a district court judgment. The court held that a state court reasonably could conclude that a capital defendant suffered no prejudice at trial where he was required to wear a concealed leg brace restraint that signified custody status rather than dangerousness, the jury was instructed that the brace was a routine measure, and the evidence of the defendant’s guilt was particularly strong.

Marvin Walker was charged with first-degree murder and three counts of assault with intent to commit murder, among other crimes, based on armed robberies in which Walker shot multiple victims, killing one and permanently injuring the others. In each instance, Walker entered a commercial business, forced employees to a back area, and then robbed and shot them. Walker was caught and charged with the crimes after he tried to sell the firearm that he used to an undercover police officer just a few weeks after his last crimes.

At trial, the sheriff’s office placed a knee brace restraint on one of Walker’s legs, under his pants. Jurors noticed the restraint because it made Walker limp. No record was made of the need for such a restraint, and Walker’s lawyer made no objection to the knee brace.

Walker ultimately was convicted on the murder and assault with intent to commit murder charges in 1980, and he was sentenced to death.

On direct appeal, the California Supreme Court held that any objection to the use of the brace was waived by the failure to object. Walker pursued state habeas petitions, but they were denied on the merits without explanation.

Walker petitioned for federal habeas relief, contending his trial attorney was ineffective for failing to object to the knee restraint. The district court granted the petition, rejecting the state court’s application of Strickland v. Washington, 466 U.S. 668 (1984). According to the district court, the only reasonable conclusion to draw from the record was that counsel was constitutionally deficient in failing to object to the restraint, and Walker was prejudiced as a result.

The court of appeals reversed, holding that the California Supreme Court’s decision was not contrary to or an unreasonable application of Supreme Court law.

The court of appeals explained that, in pertinent part, Walker asserted ineffective assistance of counsel for failure to object to his shackling, not a due process claim based on the shackling itself. Thus the applicable case authority was the Strickland line of precedent.

With that in mind, the court held that the state court reasonably could have applied Strickland to decide that Walker was not prejudiced by the knee restraint.

First, although members of the jury became aware of the knee brace, it was at all times worn under Walker’s clothing and was relatively unobtrusive compared to unconcealed leg irons, handcuffs secured to belly chains, gags, and being bound to a chair, as occurred in other cases.

Second, because Walker’s hands were unencumbered, his restraint signified custody status rather than dangerousness, and the fact that Walker was in custody during the trial was something he himself voluntarily introduced into evidence.

Third, the judge indicated to the jury that the brace was a more-or-less routine measure taken by the sheriff for all persons in custody. The judge’s comments would have substantially dispelled any impression that Walker posed a unique danger in court, the court reasoned.

Fourth, the evidence of Walker’s guilt was strong. He was identified by two of the survivors of the shootings. The identifications were powerfully corroborated by his attempt to sell the very weapon used in his crimes to an undercover police officer less than three weeks after the second robbery.

Fifth, the jury acquitted Walker of assaulting with intent to murder a customer who entered one of the businesses while Walker’s robbery was in progress. The court characterized that as compelling proof that the jury could evaluate the evidence fairly and was not blinded by the brace.

On such a record, the state court reasonably could conclude that it was not reasonably probable that the jury would have acquitted Walker had Walker’s counsel objected to the restraint.

That also held true for the penalty phase of trial, the court said. The magnitude of Walker’s crimes was enormous. During the first armed robbery, he shot three store employees, two of them execution-style in the head, and killed a 15-year-old. During the robbery, Walker said he wanted the victims killed to eliminate any witnesses. In the second incident, Walker sexually molested a 20-year-old woman at gunpoint by ripping open her blouse and touching her breasts, then pistol-whipped her approximately 12 times, and shot her twice, once in the eye and once through her left ear. She lost her eye and the hearing in one ear, and suffered a fractured neck. In the face of such horrendous crimes, Walker’s mitigation evidence consisted of the fact that he was 19 years old at the time of the offenses, had no prior criminal record, had done yard work for a church secretary in the past, gave a friend rides to work, provided financial and emotional support to his mother and sister, and was loved by them and his girlfriend.

The California Supreme Court did not unreasonably apply or act contrary to Supreme Court law in deciding, as it necessarily did, that the restraint Walker was required to wear under his pants during the penalty phase was trivial in comparison to the magnitude of his crimes, taking into account the nature of the mitigation evidence presented to the jury. That is, the court said, it could not conclude that the California Supreme Court was unreasonable in deciding that it was not reasonably probable that Walker would have been spared the death penalty had his counsel objected to the knee restraint.

The court thus reversed the district court’s granting of the writ we remand for the district court’s consideration of other claims it had held in abeyance.

Judge Gould concurred in part and dissented in part, agreeing with the majority that the state court reasonably concluded that a jury would not have acquitted Walker if his attorney had successfully objected to the shackle. Judge Gould disagreed, however, with the majority’s conclusion that the California Supreme Court reasonably decided that counsel’s deficiency did not prejudice Walker in the penalty phase. Judge Gould reasoned that there was no way to know how a jury would have weighed the aggravating and mitigating penalty phase evidence absent shackling that weighed on their sensibilities.