Jerry Frye v. Ron Broomfield

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY GRANT FRYE, No. 22-99008

Petitioner-Appellee, D.C. No.

2:99-cv-00628-

v. KJM-CKD

RONALD BROOMFIELD, Warden,

San Quentin State Prison, OPINION

Respondent-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted April 11, 2024

Pasadena, California

Filed September 10, 2024

Before: Mary H. Murguia, Chief Judge, and Kim McLane

Wardlaw and Salvador Mendoza, Jr., Circuit Judges.

Opinion by Chief Judge Murguia;

Concurrence by Judge Mendoza

2 FRYE V. BROOMFIELD

SUMMARY*

Habeas Corpus

In a case in which a California jury sentenced Frye to

death for two first-degree murders, the panel reversed the

district court’s order granting a writ of habeas corpus on

Jerry Grant Frye’s claim that his due process rights were

violated when jurors saw him shackled during trial, and

remanded for further proceedings on Frye’s remaining

claims.

The district court determined that the state court’s denial

of the due-process shackling claim was not entitled to

deference under Antiterrorism and Effective Death Penalty

Act (AEDPA) because the decision amounted to either an

unreasonable application of the law or an unreasonable

application of the facts. The district court concluded that the

shackling prejudiced Frye at both the guilt and penalty

phases, and granted the writ.

The panel did not address prejudice under Brecht v.

Abrahamson, 507 U.S. 619 (1993), because Frye did not

overcome the significant deference owed to an unreasoned

state court decision on the merits under AEDPA.

The State argued that 28 U.S.C. § 2254(d)(1) bars habeas

relief (1) because the right to be free from unjustified guilt-

phase shackling was not clearly established federal law when

the state court denied Frye relief in 2001; and (2) because,

alternatively, the state court could have concluded that the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

FRYE V. BROOMFIELD 3

shackling was harmless error under Chapman v. California,

386 U.S. 18 (1967). The panel rejected the argument that the

right to be free from unjustified guilt-phase shackling was

not a clearly established violation of federal law at the time

of the state court’s decision. Given the deferential nature of

its review, and in light of the limited shackling evidence and

the guilt evidence before the state court, the panel could not

say that every fairminded jurist would conclude that the state

court’s harmlessness decision was objectively unreasonable.

The district court alternatively concluded that the

California Supreme Court’s adjudication was an

unreasonable determination of the facts under 28 U.S.C.

§ 2254(d)(2). Because reasonable minds could differ about

whether the state court had sufficient evidence to conclude

that shackling was not prejudicial, the panel concluded that

relief is unavailable on this ground.

The panel did not reach the merits of any of Frye’s other

pending claims under § 2254(d).

Judge Mendoza concurred. Noting that this court is

required to guess what the state court’s reasoning might have

been before this court applies § 2254(d), he wrote separately

to register his frustration with the deference that this court

owes the perfunctory, two-sentence denial at issue in this

capital case.

4 FRYE V. BROOMFIELD

COUNSEL

Michael R. Snedeker (argued) and Lisa R. Short, Snedeker

Smith & Short, Portland, Oregon, for Petitioner-Appellee.

Christopher J. Rench (argued), Supervising Deputy Attorney

General; Kenneth N. Sokoler, Supervising Deputy Attorney

General; James W. Bilderback, II, Senior Assistant Attorney

General; Lance E. Winters, Chief Assistant Attorney

General; Rob Bonta, California Attorney General; United

States Department of Justice, Office of the California

Attorney General, Sacramento, California; for Respondent-

Appellant.

OPINION

MURGUIA, Chief Circuit Judge:

In 1988, a California jury sentenced Petitioner Jerry

Grant Frye to death for the first-degree murders of Robert

and Jane Brandt. After the California Supreme Court

summarily denied Frye’s state habeas petition, Frye sought

habeas relief in federal court, where his forty-plus claims

have been pending for over two decades. The sole issue in

this appeal is claim 44, which alleges that Frye’s due process

rights were violated when jurors saw him shackled during

the trial. The district court granted a writ of habeas corpus

on that claim after concluding that the shackling prejudiced

Frye. Warden Ronald Broomfield (hereafter, “the State”)

timely appealed.

We do not address prejudice because we conclude that

Frye has not overcome the significant deference owed to an

FRYE V. BROOMFIELD 5

unreasoned state court decision on the merits under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”).

See Harrington v. Richter, 562 U.S. 86, 102 (2011). We

reject the State’s argument that the right to be free from

unjustified shackling was not clearly established federal law

when the state court denied Frye relief in 2001. See Deck v.

Missouri, 544 U.S. 622, 629 (2005) (citing Supreme Court

precedent affirming the right as “deeply embedded in the

law”). But in light of the limited shackling evidence, we

cannot say that every fairminded jurist would agree that the

state court was unreasonable in denying relief. We therefore

reverse and remand for further proceedings on Frye’s

remaining claims.

I. Background

In April 1985, Frye and his then-girlfriend, Jennifer

Warsing, moved to Amador County, California, to grow

marijuana for profit on a friend’s gold mining claim. People

v. Frye, 959 P.2d 183, 198 (Cal. 1998), as modified (Sept.

23, 1998), disapproved of on other grounds by People v.

Doolin, 198 P.3d 11 (Cal. 2009). Frye and Warsing set up

camp on the mining claim about a quarter mile from the

cabin where an older couple, Robert and Jane Brandt, lived,

and Warsing became friendly with Jane Brandt. Id.

On May 14, 1985, Warsing accompanied Mrs. Brandt on

an errand, and when they returned, Mrs. Brandt invited

Warsing to the cabin for coffee later that evening. Id. at 198-

99. Warsing walked back to the campsite to find Frye

talking and drinking beer with an acquaintance of the

Brandts, Ron Wilson. Id. After Wilson left around dusk,

Frye told Warsing he saw the devil moving around the

campsite and thought he was being set up. Id. at 199.

According to Warsing, Frye said that he was going to kill the

6 FRYE V. BROOMFIELD

Brandts and would kill her too unless she went with him. Id.

Frye had allegedly assaulted Warsing on several prior

occasions, and she testified that Frye grabbed his shotgun

and took her by the arm to the cabin. Id. at 198-99.

According to Warsing, Mrs. Brandt invited them inside,

and Frye placed the shotgun by the kitchen doorway. Id. at

199. He joked with the Brandts about having a headache

from drinking too much, so Warsing thought things had

returned to normal. Id. Moments later she heard a noise and

looked up to see Frye shoot both Mr. Brandt, who fell back

in his chair, and Mrs. Brandt, who fell back onto the sofa.

Id. Warsing testified that she tried to leave, but Frye forced

her to help him steal the Brandts’ valuables and their car. Id.

Frye and Warsing returned to the campsite, knocked it down,

and drove out of town until they reached Belle Fourche,

South Dakota, where Frye said they would settle down. Id.

at 199-200.

Bobby Brandt discovered his parents’ bodies on May 16,

1985. Id. at 200. In addition to identifying their stolen

property for the police, he recognized Frye’s denim jacket in

the kitchen. Id. Subsequently, in July 1985, Belle Fourche

police responded to a disturbance at the apartment Frye and

Warsing shared and arrested Frye for assault. Id. While Frye

was sitting in the patrol car, he asked the officer, “Do you

want a big one?” and said that he was wanted in California

for a double murder. Id. Frye then gave a videotaped

interview, stating that he did not know if he had killed the

Brandts, but Warsing told him that he did, and he had

experienced alcoholic blackouts in the past. Id. at 200-01.

Warsing, who was also arrested, cooperated with the police,

leading them to the Brandts’ stolen property and to the

murder weapon. Id. at 201.

FRYE V. BROOMFIELD 7

At trial, the prosecution’s evidence primarily came from

Warsing, who testified as an accomplice under a grant of

immunity. Id. Amador County Police Officer Mark

Anderson testified that when Frye learned Warsing would

not be charged with anything, Frye became irritated and told

Anderson, “she is as guilty as I am. She is an accessory

before and after the fact.” Id. at 236. South Dakota police

officer Kirk Smith testified that when he and Officer Richard

Evans were transporting Frye to jail after the videotaped

interview, Frye admitted to the murders. However, Officer

Smith stated that he could not hear Frye very well, and

Officer Evans, who was in the front seat with Frye, did not

hear Frye admit to the murders. Finally, the physical

evidence—including Frye’s denim jacket in the Brandts’

kitchen, the position of the Brandts’ bodies, and the

recovered murder weapon and other stolen items—largely

aligned with Warsing’s account. See id. at 199-201.

Frye’s defense sought to cast doubt on Warsing’s

testimony by calling a professor of forensic science, who

testified that the crime scene was inadequately processed and

that Warsing’s account did not align with the physical

evidence. Id. at 201. The defense also called a psychiatrist

who treated Frye and testified that he did not believe

Warsing’s account “based on what [Frye] told him of

Warsing’s personal history, corroborated by investigative

reports.” Id. Finally, the defense elicited testimony from

Warsing that, despite her claim that she was essentially held

hostage, she had done most of the driving and carried out

most of the financial transactions on their trip from

California to South Dakota.

In May 1988, after approximately three days of

deliberation and multiple requests to examine the evidence,

the jury convicted Frye of two counts of first-degree murder,

8 FRYE V. BROOMFIELD

first-degree robbery, residential burglary, and vehicle theft.

The jury also found true the allegation that Frye personally

used a firearm during the commission of the offenses.

During the penalty phase, Frye insisted on speaking to

the jury. He stated that he was “very angry,” could not

accept the verdict, felt the jury had treated his case “like a

traffic ticket,” and could not understand why the jury did not

examine the evidence more closely. Frye’s family testified

that Frye had experienced childhood difficulties, a chaplain

testified that Frye had accepted God and was a changed man,

and it was stipulated that Frye’s jailers would testify that he

posed no disciplinary problems. Id. The prosecution did not

call any witnesses, but it emphasized the aggravating

circumstances of the crime and introduced Frye’s prior

felony conviction for sexual assault. Id. After

approximately two days of deliberation, the jury sentenced

Frye to death in August 1988. In 1998, the California

Supreme Court affirmed Frye’s conviction and sentence. Id.

at 198. Frye did not raise the shackling claim on direct

appeal. See id.

A. State habeas proceedings

Frye filed a state habeas petition in April 2000 claiming,

inter alia, that his rights to due process were violated when

jurors saw him shackled in court without justification. Frye

submitted evidence that, although the trial judge ruled in

pretrial hearings that Frye was not to be shackled “any time

he’s in the courtroom,” two jurors told defense investigators

that they recalled seeing Frye in shackles.

In her April 2000 declaration—signed over a decade

after the trial—Juror Judy Silvey said she recalled “seeing

Mr. Frye in shackles: feet, wrists & waist. I recall the

defense asking the court to remove them so the jury would

FRYE V. BROOMFIELD 9

not form an opinion. The shackles gave him the flavor of

danger.” In July 2000, Juror Silvey elaborated in a second

declaration that she saw Frye shackled in the courtroom

during jury selection, she believed the entire jury saw him,

and she recalled Frye’s attorney “seemed to make a

production of his request” for the court to remove the

shackles. After granting the request, the judge “told the jury

not to have preconceived ideas about Mr. Frye’s guilt or

innocence.” Juror Silvey said she also saw Frye “sitting

shackled on a bench near the entrance to the courtroom” at

the beginning of jury selection, which she believed “was

staged to make Mr. Frye appear more human to the jury.”

Finally, she stated that jurors “did not discuss Mr. Frye being

shackled” during deliberations. Juror Narvonna Canale also

recalled seeing Frye in shackles—“hands and feet”—during

the trial, but she could not remember how many times or

whether it occurred inside the courtroom or in the hallway.

Frye submitted declarations from two other jurors in

support of other habeas claims, but those declarations did not

discuss shackling. The state submitted a declaration from

one of Frye’s trial attorneys, Judd Iversen, stating “[a]t no

time did defense counsel learn that any juror had actually

observed the defendant in shackles, either inside the

courtroom or out.” In 2001, the California Supreme Court

summarily denied Frye’s petition “on the merits” without

holding an evidentiary hearing.

B. Federal habeas proceedings

Contemporaneously with his state habeas petition, Frye

filed a federal habeas petition in April 2000 raising

numerous claims, including the shackling claim.

A federal evidentiary hearing was held on the shackling

claim in 2008. Juror Silvey testified that she recalled seeing

10 FRYE V. BROOMFIELD

Frye shackled by his hands and waist both inside and outside

the courtroom. She recalled seeing Frye sitting on a bench

outside the courtroom almost every morning and stated that

all the jurors had to pass by him. Juror Silvey could not

recall how often Frye was shackled when sitting on the

bench, but she clarified that he was not shackled every

morning. She recalled seeing Frye shackled inside the

courtroom one time toward the beginning of trial, when she

was sitting in the jury box with all twelve jurors present.

After defense counsel asked for Frye’s shackles to be

removed, Juror Silvey did not recall seeing the shackles in

the courtroom again. However, she believed another juror

mentioned the shackles once in the jury room prior to

deliberations. Juror Canale testified that she could not recall

if she saw Frye shackled inside the courtroom, but she

recalled seeing him outside the courthouse shackled by his

feet and wrists. She could not recall another juror

mentioning the shackles.

In 2015, the magistrate judge recommended denying

relief on Frye’s shackling claim. The magistrate judge first

concluded that the California Supreme Court’s decision

denying relief was not entitled to AEDPA deference because

the “state court determination amounted to either an

unreasonable application of the law or an unreasonable

determination of the facts.” But the magistrate judge

concluded that Frye failed to establish that the shackling had

a “substantial and injurious effect or influence” on the jury’s

guilt and penalty phase verdicts. Brecht v. Abrahamson, 507

U.S. 619, 623 (1993) (citation omitted).

In 2022, the district court issued a final judgment

granting habeas relief solely on the shackling claim. The

district court did not disturb the magistrate judge’s

determination that the state court decision was not entitled to

FRYE V. BROOMFIELD 11

AEDPA deference. But the district court rejected the no-

prejudice recommendation, instead concluding that the

shackling prejudiced Frye at both the guilt and penalty

phases. Frye’s remaining claims, alleging ineffective

assistance of counsel, insufficiency of the evidence, jury

instruction errors, and other issues, remain pending before

the district court.

II. Standard of Review

We review the district court’s grant of habeas relief de

novo. Chavez v. Brnovich, 42 F.4th 1091, 1097 (9th Cir.

2022). We review mixed questions of law and fact de novo,

and we review the district court’s factual findings for clear

error. Id. at 1097 n.5. Because Frye filed his petition after

1996, AEDPA’s amendments to 28 U.S.C. § 2254(d) govern

review of his claim. See id. at 1097. Under § 2254(d), a

federal court is barred from granting habeas relief on a claim

that was

adjudicated on the merits in State court

proceedings unless the adjudication of the

claim—

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established Federal

law, as determined by the Supreme Court of

the United States; or

(2) resulted in a decision that was based

on an unreasonable determination of the facts

12 FRYE V. BROOMFIELD

in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). A federal court presumes the state

court adjudicated a claim on the merits in the absence of any

indication to the contrary, and AEDPA deference applies

equally to reasoned and unreasoned state court decisions.

Harrington, 562 U.S. at 98-99. If a petitioner surmounts

§ 2254(d), the federal court may consider the claim de novo.

See Panetti v. Quarterman, 551 U.S. 930, 953 (2007). But

even then, a habeas petitioner is not entitled to relief based

on a trial error unless they can further establish that the error

resulted in “actual prejudice.” Brecht, 507 U.S. at 637.

III. Discussion

A federal court may not grant habeas relief to a petitioner

in state custody unless the petitioner surmounts both

AEDPA deference as set forth in 28 U.S.C. § 2254(d) and

the test for prejudice as set forth in Brecht. Brown v.

Davenport, 596 U.S. 118, 122 (2022). Because we conclude

that AEDPA forecloses granting relief, we do not reach

Brecht prejudice. The magistrate judge determined (and the

district court did not dispute) that AEDPA did not bar relief

because the California Supreme Court’s summary denial

was “either an unreasonable application of the law” under

§ 2254(d)(1) or “an unreasonable determination of the facts”

under § 2254(d)(2). Although it is a close call, we must

disagree in light of the substantial deference that AEDPA

requires us to give to an unreasoned state court merits

decision.

A. Section 2254(d)(1)

Section 2254(d)(1) bars granting habeas relief on a claim

that was adjudicated on the merits in state court unless the

FRYE V. BROOMFIELD 13

adjudication “was contrary to, or involved an unreasonable

application of, clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). Because the California Supreme Court

summarily denied Frye’s petition “on the merits,” we must

determine what theories could have supported California’s

decision and ask whether reasonable jurists could disagree

that those theories are inconsistent with Supreme Court

precedent. Harrington, 562 U.S. at 102. Frye bears the

burden of demonstrating that the state court’s decision was

“so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 103. And

he must do so based solely on the record before the state

court. Cullen v. Pinholster, 563 U.S. 170, 185 (2011).

The state court record indicates that, over a decade after

the trial, two jurors recalled seeing Frye shackled during the

trial. One of those jurors said the shackles gave Frye “the

flavor of danger.” After Frye’s attorney requested that the

shackles be removed, the court granted the request and

instructed the jury “not to have preconceived ideas about Mr.

Frye’s guilt or innocence.” During the federal evidentiary

hearing in 2008, the same juror testified to recalling more

pervasive shackling outside the courtroom, but we may not

consider that evidence in conducting our review under

§ 2254(d)(1). See Pinholster, 563 U.S. at 185.

The State argues that § 2254(d)(1) bars granting habeas

relief because (1) unjustified shackling was not a clearly

established violation of federal law at the time of the state

court decision, and (2) the state court could have concluded

that the shackling was harmless error. See Chapman v.

California, 386 U.S. 18, 24 (1967) (“[B]efore a federal

constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a

14 FRYE V. BROOMFIELD

reasonable doubt.”). We reject the first argument because

the prohibition on unjustified shackling was clearly

established long before the state court denied relief in 2001.

See Deck, 544 U.S. at 626-29 (describing the right as

“ancient” and “deeply embedded in the law”). But given the

limited shackling evidence before the state court and the

deferential nature of our review, we agree with the State’s

second argument. Because we cannot say that every

fairminded jurist would conclude that the state court’s

harmlessness determination was objectively unreasonable,

AEDPA forecloses relief on this ground.

i. Clearly established federal law

Under § 2254(d)(1), “clearly established Federal law”

refers to United States Supreme Court holdings, not dicta, at

the time of the relevant state court decision. Carey v.

Musladin, 549 U.S. 70, 74 (2006). The State argues that the

prohibition on shackling was not clearly established until

2005, when Deck v. Missouri held that due process forbids

the routine use of shackles during the penalty phase unless

“justified by an essential state interest.” 544 U.S. at 624

(quoting Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986)).

But as Deck itself acknowledged, the Supreme Court

articulated the right to be free from routine shackling during

the guilt phase many decades earlier—which our court and

others have long recognized. The prohibition on routine

guilt-phase shackling was therefore “clearly established

Federal law” within the meaning of § 2254(d)(1) well before

the state court’s decision in 2001.

Deck is a decision in two parts. The second part

addressed the question presented—whether shackling a

defendant “during the penalty phase of a capital case violates

the Federal Constitution.” Id. at 624. But first the Court

FRYE V. BROOMFIELD 15

considered whether due process permitted guilt-phase

shackling. Id. at 626. Looking to its own precedents, the

Court said the “clear” answer was that “[t]he law has long

forbidden routine use of visible shackles during the guilt

phase.” Id.

Deck justified its conclusion by pointing to Illinois v.

Allen, which “held that the Constitution sometimes

permitted . . . physical restraints” for an “unusually

obstreperous” defendant. Id. at 627 (citing Allen, 397 U.S.

337, 342 (1970)). But Allen “immediately added” that

shackling was not to be used “except as a last resort.” Id. at

628 (citing Allen, 397 U.S. at 344). Allen explained that

shackling was forbidden because it could “have a significant

effect on the jury’s feelings about the defendant,” interfere

with a defendant’s “ability to communicate with his

counsel,” and undermine the “dignity and decorum of

judicial proceedings.” Allen, 397 U.S. at 344.

Deck also pointed to Holbrook v. Flynn, which held that

due process was not violated when several uniformed guards

sat near the defendant during trial because conspicuous

security was not “the sort of inherently prejudicial practice

that, like shackling, should be permitted only where justified

by an essential state interest.” Holbrook, 475 U.S. at 568-69

(emphasis added). While shackling is an “unmistakable

indication[] of the need to separate a defendant from the

community at large,” the presence of additional guards need

not similarly “be interpreted as a sign that [the defendant] is

particularly dangerous or culpable.” Id. at 569. Following

Allen and Holbrook, the courts of appeals, including ours,

widely applied “these statements as setting forth a

constitutional standard” barring unjustified shackling. Deck,

544 U.S. at 628-29 (collecting cases).

16 FRYE V. BROOMFIELD

Because the reasons for the guilt-phase rule articulated

in Allen and Holbrook applied in equal measure at the

penalty phase, Deck concluded that due process does not

permit unjustified penalty-phase shackling. 544 U.S. at 633.

Deck therefore affirmed the Supreme Court’s long-

established prohibition on routine guilt-phase shackling—it

did not newly establish the rule.

Our conclusion is bolstered by decades of our case law.

Only United States Supreme Court holdings can clearly

establish federal law, but we may “look to circuit precedent

to ascertain whether [we have] already held that the

particular point in issue is clearly established by Supreme

Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64

(2013). Prior to Deck, we repeatedly cited Allen and

Holbrook as establishing the rule that unjustified guilt-phase

shackling violates due process. See Spain v. Rushen, 883

F.2d 712, 721-22 (9th Cir. 1989); Rhoden v. Rowland

(Rhoden I), 10 F.3d 1457, 1459-60 (9th Cir.1993); Rhoden

v. Rowland (Rhoden II), 172 F.3d 633, 636 (9th Cir. 1999);

Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002), as

amended (Mar. 11, 2002); Dyas v. Poole, 317 F.3d 934, 937-

38 (9th Cir. 2003), as amended (Jan. 21, 2003).1

Other courts have reached the same conclusion. As early

as 1976, the California Supreme Court cited Allen for the

proposition that the defendant’s visible shackling was so

prejudicial as to warrant a new trial. People v. Duran, 545

1

The State points to Walker v. Martel, where we assumed that the

prohibition on shackling was not clearly established prior to 2005. 709

F.3d 925, 941 (9th Cir. 2013). But there we addressed an ineffective

assistance of counsel claim based on counsel’s failure to object to

shackling, and our point was that clearly established federal law on

shackling “would not have controlled our determination on [the

defendant’s] ineffective assistance of counsel claim.” Id.

FRYE V. BROOMFIELD 17

P.2d 1322, 1327 (Cal. 1976) (en banc). More recently, the

Sixth and Eighth Circuits held that the prohibition on routine

guilt-phase shackling long predates Deck. Lakin v. Stine,

431 F.3d 959, 963 (6th Cir. 2005) (“[S]hackling a defendant

at trial without an individualized determination as to its

necessity” was a clearly established due process violation

“long before Deck was decided.”); Cole v. Roper, 623 F.3d

1183, 1192 (8th Cir. 2010) (“[U]njustified restraint during

the guilt phase . . . has been unconstitutional since 1986

when the Supreme Court decided Holbrook v. Flynn.”). We

therefore reject the State’s argument that the prohibition on

unjustified guilt-phase shackling was not clearly established

in 2001.

ii. Harmless error

The State alternatively contends that Frye is not entitled

to relief under § 2254(d)(1) because the California Supreme

Court could have concluded the shackling was harmless

beyond a reasonable doubt under Chapman, 386 U.S. at 24.

Given the deferential nature of our review, we must agree.

In light of the limited shackling evidence and the guilt

evidence before the state court, we cannot say that every

fairminded jurist would conclude that the state court’s

harmlessness decision was objectively unreasonable.

The California Supreme Court did not provide reasons

for its decision, so we must consider what theories could

have supported California’s denial of relief on the shackling

claim. Harrington, 562 U.S. at 102. The State argues that

the California Supreme Court could have concluded the

shackling error was harmless beyond a reasonable doubt

under Chapman. Our task is not to determine whether the

California Supreme Court’s conclusion was correct, but

18 FRYE V. BROOMFIELD

rather whether it was objectively unreasonable. Mitchell v.

Esparza, 540 U.S. 12, 18 (2003) (per curiam).

The magistrate judge determined that the California

Supreme Court’s decision was unreasonable because Frye

seemingly stated a prima facie shackling claim, and the state

court “lacked the evidence it would have needed” to

determine whether the shackling was harmless. “Without

developing the facts underlying petitioner’s claim,” the

magistrate judge explained, “there [was] no way to know

how many jurors saw petitioner shackled, where they saw

him, how long they saw him, or just what sort of shackles he

was wearing at the time”—necessary considerations to

determine whether the shackling was harmless beyond a

reasonable doubt.

We think this issue presents a very close call. The

“beyond a reasonable doubt” standard is an extremely heavy

burden, and we note that one juror explicitly articulated the

very reason shackling can be unconstitutionally

prejudicial—it gave Frye “the flavor of danger.” Were we

conducting de novo review of the state court’s Chapman

application, we would find it difficult to conclude that the

shackling was harmless beyond a reasonable doubt. But

under AEDPA, we cannot grant relief unless “every

fairminded jurist would agree” that the state court was not

just wrong, but objectively unreasonable. Davenport, 596

U.S. at 136; Esparza, 540 U.S. at 18.

A fairminded jurist could look at the limited shackling

evidence in the state court record, which indicated only one

instance of in-court shackling at the outset of a trial that

spanned over two months. The shackles were removed upon

defense counsel’s objection, and the trial court issued a

curative instruction. See Weeks v. Angelone, 528 U.S. 225,

FRYE V. BROOMFIELD 19

234 (2000) (“A jury is presumed to follow its instructions.”).

That fairminded jurist could also conclude that further

evidence regarding the extent and impact of the shackling

might not be available. Frye’s former attorneys reported no

knowledge of the shackling issue, and after defense

investigators spent several months interviewing jurors, the

result was four juror declarations, only two of which

mentioned shackling.

The fairminded jurist could then consider the evidence

of Frye’s guilt: Warsing’s eyewitness testimony, which the

jury apparently found credible; physical evidence largely

corroborating Warsing’s account (including the position of

the bodies, Frye’s denim jacket in the kitchen, and the

recovered murder weapon and stolen vehicle); and the

minimal rebuttal evidence. See Frye, 959 P.2d at 199-201.

And with respect to the penalty phase, that fairminded jurist

could conclude the limited mitigation evidence was

outweighed by the aggravating evidence and Frye’s “very

angry” allocution to the jury. See id. at 201.

Comparing the limited shackling evidence before the

state court with the guilt evidence, we think a fairminded

jurist could determine that the harmlessness determination

was not objectively unreasonable. Because we cannot say

that every fairminded jurist would agree that the California

Supreme Court unreasonably applied Chapman, we

conclude relief is unavailable on this ground under

§ 2254(d)(1).

B. Section 2254(d)(2)

The magistrate judge alternatively concluded that the

California Supreme Court’s adjudication was “an

unreasonable determination of the facts” under § 2254(d)(2).

Section 2254(d)(2) bars granting habeas relief on a claim

20 FRYE V. BROOMFIELD

that was adjudicated on the merits in state court unless the

adjudication “was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” The state court’s factual determination is

accorded “substantial deference,” and we may not supersede

it where “reasonable minds reviewing the record might

disagree about the finding in question.” Brumfield v. Cain,

576 U.S. 305, 314 (2015) (citation and internal quotation

marks omitted). For similar reasons obligating our denial of

relief under § 2254(d)(1), we conclude that relief is

unavailable on this claim under § 2254(d)(2).

In California state courts, a summary denial of a habeas

petition on the merits reflects the court’s determination that

the petitioner failed to state a prima facie case for relief.

People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995) (en banc).

Because Frye alleged that the jury saw him unjustifiably

shackled—and therefore seemingly stated a prima facie

shackling claim—the magistrate judge concluded that the

state court must have either ignored the evidence before it or

made factual determinations adverse to Frye without holding

an evidentiary hearing. See Hurles v. Ryan, 752 F.3d 768,

790-91 (9th Cir. 2014).

The State contends that, instead of ignoring or

discounting the evidence, the California Supreme Court

could have reasonably determined that it had sufficient

evidence to conclude the shackling was not

unconstitutionally prejudicial. State courts are not required

to hold evidentiary hearings to resolve every factual issue—

if “the state court could have reasonably concluded that the

evidence already adduced was sufficient to resolve the

factual question,” then failing to hold an evidentiary hearing

is not unreasonable under § 2254(d)(2). Hibbler v.

Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). And, the

FRYE V. BROOMFIELD 21

State argues, the California Supreme Court could have

concluded that additional fact-finding was not likely to

reveal more information. Frye’s former attorneys reported

no knowledge of the shackling issue, and after months of

investigation, the result was only two juror declarations that

indicated seemingly brief shackling.

As with above, we think this is a close call. Were we

conducting de novo review, we would have difficulty

affirming the failure to hold an evidentiary hearing when one

juror explicitly stated that the shackles made Frye seem

dangerous. But we cannot say “that any appellate court to

whom the defect is pointed out would be unreasonable in

holding that the state court’s fact-finding process was

adequate.” Hurles, 752 F.3d at 778 (citation omitted).

Because reasonable minds could differ about whether the

state court had sufficient evidence to conclude the shackling

was not prejudicial, we conclude that relief is unavailable on

this ground under § 2254(d)(2).

IV. Conclusion

We agree with Frye that the prohibition on routine guilt-

phase shackling was clearly established federal law well

before the state court’s decision in 2001. See Deck, 544 U.S.

at 624 (citing Allen, 397 U.S. at 343-44, and Holbrook, 475

U.S. at 568-69). But given the limited shackling evidence

before the state court, we cannot say that every fairminded

jurist would agree that the state court was unreasonable in

denying relief. As a result, we do not address Brecht

prejudice, nor do we reach the merits of any of Frye’s other

pending claims under § 2254(d). We reverse and remand for

further proceedings on those claims.

REVERSED AND REMANDED.

22 FRYE V. BROOMFIELD

MENDOZA, Circuit Judge, concurring:

It’s a strange thing to review and defer to an application

of federal law that does not exist. But that is what the

Antiterrorism and Effective Death Penalty Act (“AEDPA”)

tells us to do. When a habeas petitioner calls on our court to

review a state court’s summary denial of post-conviction

relief, we are required to guess what the state court’s

reasoning might have been before we apply 28 U.S.C.

§ 2254(d). Harrington v. Richter, 562 U.S. 86, 102 (2011).

The majority follows that charge and I cannot fault its

reasoning or conclusion. I write separately only to register

my frustration with the deference that we owe the

perfunctory, two-sentence denial at issue in this capital case.

Frye first raised his shackling claim in his state habeas

petition, which the California Supreme Court summarily

denied. He challenged that decision in his federal habeas

petition, and the magistrate judge determined that Frye had

established that he was unconstitutionally shackled. The

district court agreed with the magistrate judge on that point

and concluded that the shackling prejudiced Frye. See

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). And now

Frye’s case is before us. We speculate—as we are required

to—that the California Supreme Court could have concluded

that the shackling error was harmless under Chapman v.

California, 386 U.S. 18 (1967). Although we acknowledge

that this is a close case, we defer to our invented state-court

analysis because not every fair-minded jurist would find it

objectively unreasonable. Majority at 14.

So this case hinges—as many habeas cases do—on

deference. But the question that continues to gnaw at me is

this: deference to what? The state court reasoning that we

concocted? That can’t be; and yet it is. Five federal judges

FRYE V. BROOMFIELD 23

have studied this case: two determined that Frye was

unconstitutionally shackled, and the other three recognize

that it is “a close call.” Majority at 12. One would think that

federal judges’ impressions of the federal issues presented

would carry more weight. Yet, we defer to state-court

reasoning that never was. That boggles my mind. And I

regret that Frye will remain on death row because a

hypothetical fair-minded jurist could think that an imaginary

harmlessness analysis is reasonable.