Roche, Charles E. v. Davis, Cecil

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 01-1664 & 01-1665

Charles Roche, Jr.,

Petitioner-Appellee,

Cross-Appellant,

v.

Cecil Davis, Warden, Indiana State Prison,

Respondent-Appellant,

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 98 C 347--Allen Sharp, Judge.

Argued January 29, 2002--Decided May 28, 2002

Before Coffey, Kanne, and Rovner, Circuit

Judges.

Kanne, Circuit Judge. A Lake County,

Indiana jury found petitioner Charles

Roche, Jr. guilty of murder, and the

trial judge sentenced him to death. After

exhausting his state court remedies,

Roche filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. sec. 2254.

The district court granted the habeas

petition and ordered Roche to be

sentenced to life without parole. We

affirm the grant of habeas corpus, but

vacate the disposition and remand to the

district court to return the case to

state court for re-sentencing.

I. History

A. Background

On May 11, 1990, the bodies of Ernest

"Pee Wee" Graves and Daniel Brown were

found near Gary, Indiana. The police soon

determined that the two men had been

victims of a homicide. On May 16, 1990,

an information was filed against Roche in

the Lake County Superior Court, charging

him with two counts of murder and two

counts of felony murder pursuant to Ind.

Code sec. 35-42-1-1/1 and seeking the

death penalty. Edward Niksich and Roche’s

father, Charles Roche, Sr., were both

joined as defendants, although the State

did not seek the death penalty against

Roche, Sr. On May 21, 1990, Noah Holcomb

was appointed as Roche’s counsel.

Thereafter, both Niksich and Roche, Sr.

moved for severance. The court granted

Roche, Sr.’s motion, but denied

Niksich’s, thereby leaving Niksich and

Roche to be tried jointly. Additionally,

Niksich moved to suppress the fruits of

the search of his home, which the court

granted. Niksich also filed a motion in

limine, seeking to exclude evidence

concerning a robbery in which Niksich had

previously been involved. Roche’s counsel

did not attend any of the severance

hearings or the hearings on Niksich’s

motion to suppress or motion in limine.

B. The Trial

During most of the joint trial of Roche

and Niksich, Roche wore shackles on his

legs while he sat at counsel’s table and

when he took the stand to testify. The

following evidence was adduced against

Roche at trial: In early 1990, Niksich

told his girlfriend, Patricia Andrasco,

that Graves had stolen $120 worth of food

stamps from Andrasco’s car. Several weeks

later, the woman who babysat Andrasco’s

children overheard a conversation between

Roche and Niksich, and one of the men

stated that Graves and Brown needed to be

killed.

On May 10, 1990, Roche and Niksich went

to the Spot Bar in Calumet City, Illinois

and induced Graves and Brown to come to

Roche’s house by concocting a phony drug

deal. Once there, Roche and Niksich took

Graves and Brown into the basement of the

house. Roche then went upstairs into his

bedroom and told his girlfriend Delores

Duszynski "to stay put" because "he had

some guys downstairs that he was going to

shoot because [they] owed somebody $120."

Duszynski testified that several minutes

later, she heard about nine or ten

gunshots coming from the basement. She

then heard someone pleading for his life,

begging "please don’t kill me, please

don’t kill me, just take my money, but

please don’t kill me." Duszynski then

heard several more gunshots, and a few

minutes later, Roche, Niksich, and Roche,

Sr. came into the bedroom. Roche told her

that all the two men had on them was $19

and a dime bag of cocaine. Roche then cut

up some lines of cocaine on the dresser

in the bedroom, and she, Roche, and

Niksich each snorted a line. Roche,

Niksich, and Roche, Sr. then loaded the

two bodies into the trunk of Duszynski’s

car and drove off.

The three men then saw Jose Sanchez

walking down the street and offered to

give him a ride home. Sanchez testified

that when he got into the car he saw

blood on Roche, Sr.’s shirt. When the

group arrived at Sanchez’s house, they

got out of the car and Roche opened the

trunk, inside of which Sanchez saw two

bloody bodies. The group then went inside

of Sanchez’s house, and Roche, Sr.

immediately went into the bathroom and

came out wearing a different shirt than

he was wearing before. Next, the group

gathered in Sanchez’s living room, and

Niksich exclaimed that he had shot one of

the victims in the head in the basement

of Roche’s house and had taken his

wallet. Roche then exclaimed that he had

shot the other victim once in the chest,

once in the stomach, and once in the

head. Roche said that the victim was

still alive and had begged for his life,

but that Roche went upstairs, got a

rifle, and went back into the basement

and "kept on shooting him in the head."

Sanchez testified that Roche told him

that he used a .38 caliber gun and a .22

caliber rifle to kill one of the victims.

On May 11, 1990, there was an article in

a local newspaper concerning Graves’ and

Brown’s deaths./2 The article stated

that two dead bodies had been found at

the intersection of 9th Avenue and Cline

Avenue near Gary in the early morning

hours of May 11. The article also claimed

that the police believed that the two

dead men were victims of homicides and

that there were no suspects at that time.

Roche cut the article out of the

newspaper and Duszynski put the article

into a folder to save as a keepsake.

Furthermore, Roche boasted about his

involvement in Graves’ and Brown’s deaths

on several occasions. For example, on May

12, 1990, he told his neighbor Larry

Milligan, "I shot one and Eddie [Niksich]

shot one." Also, at a party that Roche

hosted on May 13, he told another

neighbor, James Superits, that he and

Niksich had shot two men in Roche’s

basement a few days earlier. He showed

Superits the newspaper article and

brought him down to the basement to show

him where he and Niksich had shot Graves

and Brown. In addition, Roche sold

Superits a .38 caliber Derringer handgun,

which Superits later gave to the police,

and which the State entered into

evidence.

On May 13, Sanchez went to the Hammond

police station and informed them of his

knowledge regarding the deaths of Brown

and Graves, pointing the finger at Roche,

Niksich, and Roche, Sr. Niksich, Roche,

Sr., Duszynski, and Milligan were

arrested several days later, although

Roche remained at large. On May 16, Roche

turned himself in to Russ Ewing, a

Chicago television reporter, and Ewing’s

crew filmed Roche admitting that he shot

two men in his basement. Ewing then took

Roche to the Gary Police Department,

where Roche gave a statement to the

police, claiming that he "unloaded

seventeen shots with a .22 rifle into the

bodies of the two men." Roche confessed

to his involvement in Graves’ and Brown’s

deaths a fifth time on July 10, 1990,

while being detained at the Lake County

Jail. He told corrections officer

Virginia Ratajczak that on May 10, he

brought Graves and Brown into the

basement of his house, that they had

pleaded for their lives, and that he had

shot them both to death. The State

entered into evidence a redacted series

of notes that Roche and another detainee

passed back and forth while both were

detained at the Lake County Jail. The

redacted notes stated as follows:

Detainee: Roche, how do you deal with it,

man, now that the prosecutor has filed

the death request on you, don’t it even

bother you?

Roche: That shit don’t move me. That’s

their way of trying to bluff someone into

a cop-out, but I know they ain’t got the

balls to go through with it. They’re

faking at it, dude. They [have to prove]

I did it in cold blood, plus they can’t

prove I took their money.

Detainee: Man, you just don’t seem like

the type to kill people for no reason or

just in cold blood. From what I know of

you, you just don’t seem that kind.

Roche: Well, that’s the whole idea behind

my innocent smile. As long as a person

doesn’t think one is capable of it or

don’t look like the type, they can lure a

person anywhere and smile them to their

grave. Ha, my regret is turning myself

in. I should of shot it out with the pigs

and killed some of them. Plus, I should

have killed my old lady that night and

the Mexican. It’s too late for the should

of’s and could of’s. I’ve just got to

beat this shit now.

Further, the State entered evidence

concerning the investigation of Graves’

and Brown’s deaths. Security guard

Randall Bowman testified that in the

early-morning hours of May 11, he saw two

bodies lying in the roadway at the

intersection of 9th Avenue and the Cline

Avenue service road. He stated that he

returned to his office and called the

police. Lake County Sheriff’s Department

evidence technician Ronald Lach testified

that he arrived at the scene at

approximately 12:30 a.m. on May 11. He

photographed the bodies, collected a

cigarette butt at the scene, and noted

the absence of any identification on the

bodies. Finally, he transported the

bodies to the Guy and Allen Funeral Home,

where the autopsies were conducted.

Dr. Young Kim, a pathologist for the

Lake County Coroner’s Office, performed

the autopsies on Graves and Brown. Dr.

Kim testified that he found six gunshot

wounds on Brown’s body--one on the left

side of his chest, one on the left side

of his head, and four on the right side

of his face. Dr. Kim testified that Brown

had died as a result of extensive

fracturing of his skull and laceration of

his brain due to gunshot wounds. He

testified that he observed seven gunshot

wounds on Graves’ body--one on the upper

right side of his chest, one on the right

side of his chest, one of the left side

of his back, one on the left side of his

head, one on the right side of his face,

one behind his ear, and one on the left

side of his face. Dr. Kim stated that he

determined that Graves had died as a

result of gunshot wounds that caused a

perforal injury of his right lung and a

perforation of his brain. Finally, Dr.

Kim testified that he recovered three

bullets from Brown’s body and five

bullets from Graves’ body.

Firearms expert Jay Gauthier testified

that of the three bullets recovered from

Brown’s body, two were .38 caliber

bullets fired from the gun that Roche had

sold to Superits, and the other was a .22

caliber bullet. He also testified that of

the five bullets recovered from Graves’

body, four were .38 caliber bullets fired

from the gun that Roche had sold to

Superits and one was a .25 caliber

bullet.

After the State entered the evidence

detailed above, Roche took the stand in

his own defense and testified to the

following: On May 10, 1990, Niksich asked

him to obtain some cocaine, and in

response, he called Sanchez to arrange to

purchase some. Sanchez told him that he

would deliver the cocaine to him by 10:30

p.m. that evening. In turn, Roche told

Niksich to arrange for the buyers to be

in the basement of Roche’s house by 11:00

p.m. Roche and his father then went to a

local bar, where Roche became

intoxicated. Roche and his father met

Niksich at Roche’s house around 10:30

p.m. Roche, Sr. and Niksich then left the

house to go purchase some beer, and while

they were gone, Roche heard some noises

in the basement. He retrieved his .38

caliber Derringer and his .25 caliber

automatic handgun and went down to the

basement to investigate. Once in the

basement, Roche found two men standing in

the utility room. One of the men pointed

a gun at him and told Roche to give him

the cocaine. The second individual told

the gunman to shoot Roche. Roche told the

two men that he would go and get the

cocaine, but instead he pulled his own

gun and fired at the gunman, shooting him

in the chest. He then shot the other man

in the face. The gunman then pointed his

gun at Roche again, so Roche shot him

several times with his .25 automatic

handgun. Shortly thereafter, Niksich,

Roche, Sr., and Sanchez entered the

basement and agreed to assist Roche in

disposing of the bodies.

C. Penalty Phase

The jury found Roche and Niksich each

guilty of two counts of murder and of two

counts of "Murder in the Perpetration of

a Robbery." A sentencing hearing was then

held for both defendants, during which

the State sought the death penalty

against both Roche and Niksich. The

Indiana Code provided that the State

could seek the death penalty against

Roche if it proved at least one of the

following aggravating circumstances

beyond a reasonable doubt: "[t]he

defendant committed the murder[s] by

intentionally killing the victim[s] while

committing or attempting to commit . . .

robbery [or] [t]he defendant has been

convicted of another murder." Ind. Code

sec.sec. 35-50-2-9(b)(1)(G) & (b)(7)

(1990). Further, the Indiana death

penalty statute also provided that Roche

could present evidence pertaining to any

potential mitigating circumstances. See

id. at sec. 35-50-2-9(c). The statute

provided that the jury could recommend

the death penalty, see id. at sec. 35-50-

2-9(e), only after it had found that: 1)

the state had proved beyond a reasonable

doubt that at least one of the

aggravating circumstances existed and 2)

any mitigating circumstances that existed

were outweighed by the aggravating

circumstance(s). See id. at sec. 35-50-2-

9(k). The court instructed the jury

accordingly. The judge would then make

the final determination about the

appropriate sentence after considering

the jury’s recommendation and the

standards elucidated in Ind. Code sec. 35-

50-2-9(k). See id. at sec. 35-50-2-9(e).

With regard to Roche’s sentencing

hearing, the State entered the Pre-

Sentence Report ("PSR") into evidence,

which indicated the following: Roche had

attained a ninth- grade education and had

pled guilty to burglary in 1982 and was

incarcerated for about six years as a

result. Roche had one child, Crystall

Lynn McDaniel, who was five and a half

months old, and Roche helped support his

daughter financially. Roche’s parents

divorced when he was very young and he

lived with his paternal grandparents from

age three to age seven, while his father

was incarcerated. After his father was

released from prison, Roche lived with

Roche, Sr. and his stepmother, who moved

around a lot. As a result, Roche

frequently changed schools. Further,

Roche did not sleep much as a child

because his father would "take him places

to rip off for money." Roche spent a

considerable amount of his childhood in

foster homes and with other relatives

because his father was in and out of

prison. Further, Roche had received

psychiatric treatment when he was twelve

years old. Finally, the PSR stated that

Roche had said that he had never been

addicted to any illegal drugs and that he

used marijuana and alcohol daily and

snorted cocaine occasionally.

Roche’s mother testified that when

Roche, Sr. went to prison (and Roche was

about three years old), she accepted an

offer from Roche’s paternal grandparents

to allow Roche to live with them. In

exchange, the grandparents agreed to pay

for her divorce from Roche, Sr. She

testified that although she has had very

little contact with Roche in the last

twenty years, she promised that in the

future, she would be much more involved

in his life. Roche’s sister testified

that Roche had told her that he was "very

sorry for what had happened [with Graves

and Brown]."

After eight hours of deliberation, the

jury indicated to the court that it had

reached a recommendation with respect to

one of the defendants, but that it had

not with respect to the other. Each juror

stated to the court that further

deliberations would not result in the

jury being able to reach a recommendation

with respect to the second defendant. The

jury then told the court that it

recommended that the death penalty not be

imposed on Niksich, but that it was

unable to reach a recommendation with

respect to Roche. The court, with

counsel’s approval, then discharged the

jury. Thereafter, the court sentenced

Niksich to 80 years imprisonment and

sentenced Roche to death. In sentencing

Roche to death, the court found that

"[a]lthough there were three (3)

defendants involved in these killings,

the evidence showed that [Roche] was by

far the most culpable and is deserving of

the death penalty."

D. Procedural History

After the Indiana Supreme Court affirmed

Roche’s conviction and sentence on direct

appeal, Roche filed a petition for post-

conviction relief in the Lake Superior

Court. At the post-conviction hearing

held on October 30, 1995, Roche presented

testimony regarding his shackling during

the trial and at the sentencing hearing.

Walter Murray, one of the bailiffs during

Roche’s trial, testified that at some

point after the trial had started, he

placed leg cuffs on Roche, but not on

Niksich. Murray testified that he did not

recall placing a drape over Roche’s legs

to prevent the jury from seeing the leg

cuffs. He further testified that "with

the judge’s permission we left the leg

irons on during the trial because we

thought [Roche] was an escape risk."

Paula Niksich, Edward Niksich’s mother,

testified that she could see Roche’s

shackles during trial and that she did

not see a drape that covered the

shackles. Finally, a trial witness,

Patricia Andrasco, testified that she

could see Roche’s shackles from the

witness box when she testified.

Ultimately, the trial court denied

Roche’s petition for post-conviction

relief. Roche’s counsel appealed the

denial of the petition to the Indiana

Supreme Court, which affirmed. See Roche

v. State, 690 N.E.2d 1115 (1997).

Subsequently, Roche filed a petition for

writ of habeas corpus in federal district

court, and the district court found that

Roche’s shackling claim warranted habeas

relief. See Roche v. Anderson, 132 F.

Supp.2d 688, 709 (N.D. Ind. 2001).

However, it held that "[r]ather than

require that Roche be retried, when it is

clear from his subsequent conduct that

Roche is in fact an escape risk and would

most likely be retried in shackles,

albeit with an explanation on the record,

this court will order Roche sentenced to

life without parole." Id. (citation

omitted).

On appeal, the state of Indiana argues

that the district court improperly

granted relief on Roche’s shackling

claim. On the other hand, Roche cross-

appeals, arguing among other things that

we should grant him a new trial because

his counsel was ineffective for

permitting him to be tried before the

jury in shackles. Additionally, Roche

claims that in granting habeas relief,

the district court erred in re-sentencing

him to life without parole.

II. Standard of Review

Roche filed his habeas petition after

the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996

("AEDPA"), Pub. L. 104-132, 110 Stat.

1214 (1996) (codified at 28 U.S.C. sec.

2254). Therefore, the provisions of AEDPA

govern our review. See, e.g., Lindh v.

Murphey, 521 U.S. 320, 336, 117 S. Ct.

2059, 138 L. Ed. 2d 481 (1997). AEDPA

provides that if a constitutional claim

was adjudicated on the merits by the

state courts, a federal court may only

grant habeas relief based on that claim

if the state court’s decision was

"contrary to" or an "unreasonable

application of" federal law as determined

by the Supreme Court of the United

States./3 28 U.S.C. sec. 2254(d).

In Williams v. Taylor, 529 U.S. 362,

405-06, 120 S. Ct. 1495, 146 L. Ed. 2d

389 (2000), the Supreme Court stated that

a state court’s decision is "contrary to"

established Supreme Court precedent when

1) the state court applies a rule that

contradicts the governing law set forth

in Supreme Court cases or 2) the state

court confronts a set of facts that is

materially indistinguishable from those

of a decision of the Supreme Court and

nevertheless arrives at a decision

different from that reached by the

Supreme Court precedent. In the present

case, the Indiana Supreme Court correctly

applied Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984) as the controlling precedent

for Roche’s ineffective assistance of

counsel claims, see Roche, 690 N.E.2d at

1120, and "Strickland undoubtedly

qualifies as ’clearly established Federal

law, as determined by the Supreme Court

of the United States,’ within the meaning

of [AEDPA]." Williams, 529 U.S. at 413.

Further, the Supreme Court has never

addressed facts that are materially

indistinguishable from those in this

case. Therefore, because the Indiana

Supreme Court’s decision was not

"contrary to" established federal law,

Roche is not entitled to habeas relief on

this ground.

Nevertheless, we must determine whether

the Indiana Supreme Court’s conclusions

with respect to Roche’s ineffective

assistance of counsel claims resulted

from "an unreasonable application of"

Strickland. See Williams, 529 U.S. at

411. In doing so, we must keep in mind

that we may not issue a writ of habeas

corpus "simply because [we] conclude[ ] .

. . that the relevant state-court

decision applied [Strickland] erroneously

or incorrectly. Rather, that application

must also be unreasonable." Id. A

defendant who claims that his counsel’s

assistance was so defective as to warrant

a reversal must establish two components:

1) that his counsel’s performance fell

below an objective standard of

reasonableness and 2) that he was

prejudiced by the deficient performance.

See Strickland, 466 U.S. at 687-88. A

failure to establish either prong results

in a denial of the ineffective assistance

of counsel claim. See Hough v. Anderson,

272 F.3d 878, 890 (7th Cir. 2001).

Prejudice occurs when there is a

"reasonable probability" that but for

counsel’s deficient performance, the

result of the proceeding would have been

different. Strickland, 466 U.S. at 694. A

"reasonable probability is a probability

sufficient to undermine confidence in the

outcome." Id.

III. Analysis

A. Procedural Default

As an initial matter, the state contends

that Roche has procedurally defaulted his

claim that trial counsel was ineffective

with respect to his shackling during

trial because this claim was not raised

on direct appeal. However, the Indiana

Supreme Court adjudicated Roche’s

shackling claim on the merits, noting

that Roche’s appellate counsel was the

same person that represented him at

trial. See Roche, 690 N.E.2d at 1122-23.

Thus, we are not barred from reaching the

merits of this claim because "[i]f the

last state court to be presented with a

particular federal claim reaches the

merits, it removes any bar to federal-

court review that might otherwise have

been available." Ylst v. Nunnemaker, 501

U.S. 797, 801, 111 S. Ct. 2590, 115 L.

Ed. 2d 706 (1991).

B. Shackling

With regard to the merits, Roche argues

that he should receive a new trial

because his counsel was ineffective for

not objecting to him being shackled

during trial and then for not taking

precautions to ensure that the jury could

not see the shackles. In addition, the

state appeals the district court’s

decision that Roche’s shackling

prejudiced him during his initial

sentencing hearing.

The jurisprudence regarding the effects

of shackling merits a brief discussion.

In Illinois v. Allen, 397 U.S. 337, 343-

44, 90 S. Ct. 1057, 25 L. Ed. 2d 353

(1970), the Supreme Court first addressed

the issue of shackling and held that

"there are at least three

constitutionally permissible ways for a

trial judge to handle an obstreperous

defendant . . . : (1) bind and gag him,

thereby keeping him present; (2) cite him

for contempt; (3) take him out of the

courtroom until he promises to conduct

himself properly." In addition, the

Supreme Court explained that "no person

should be tried while shackled and gagged

except as a last resort." Id. at 344.

Building on Allen, the Supreme Court in

Holbrook v. Flynn, 475 U.S. 560, 568-69,

106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986),

considered the issue of "whether the

conspicuous, or at least noticeable,

deployment of security personnel in a

courtroom during trial is the sort of

inherently prejudicial practice that,

like shackling, should be permitted only

where justified by an essential state

interest specific to each trial." The

Court held that it was not, but set forth

the standard for analyzing inherently

prejudicial practices such as shackling.

See id. at 569-70. The Court stated that

"[w]henever a courtroom arrangement is

challenged as inherently prejudicial . .

. the question must be not whether jurors

actually articulated a consciousness of

some prejudicial effect, but rather

whether an unacceptable risk is presented

of impermissible factors coming into

play." Id. at 570 (quotation omitted).

Consistent with Allen and Holbrook, this

court has held that "[a]s a general rule,

a defendant in a criminal case has the

right to appear before the jury free from

shackles or other physical restraints."

Harrell v. Israel, 672 F.2d 632, 635 (7th

Cir. 1982). We have stated that the sight

of a defendant in shackles "could instill

in the jury a belief that the defendant

is a dangerous individual who cannot be

controlled, an idea that could be

devastating to his defense." Id. at 637.

Thus, when the defendant was shackled at

trial, the key issues are whether the

jury "was aware of" the shackles or

whether the shackles "were readily

visible." Fountain v. United States, 211

F.3d 429, 435 (7th Cir. 2000).

Because Roche raised his shackling claim

in the context of ineffective assistance

of counsel, in order to prevail on this

claim, Roche must demonstrate that: (1)

his counsel’s performance fell below an

objective standard of reasonableness; and

(2) the deficient performance so

prejudiced his defense that it deprived

him of a fair trial. See Strickland, 466

U.S. at 687-88. There is no real question

that Roche was in fact required to wear

shackles during the guilt and penalty

phases of his trial. However, the sole

mention of this fact on the trial record

is when immediately before Roche was to

take the stand, his counsel requested,

outside of the presence of the jury, that

he would "like to have [Roche] seated at

the witness chair before the jury comes

in so they don’t see his braces." We do

not know why this is the first and only

mention of Roche’s shackling--the record

is devoid of any of the facts that gave

rise to the decision to shackle him. At

the very least, this omission reveals the

fact that his trial counsel made no

record of any objection to Roche’s

shackling.

The Indiana Supreme Court held that

counsel’s failure to object to Roche’s

shackling did not constitute deficient

performance because he was "careful about

preventing the jury from seeing his

client’s ankle restraints [when Roche

took the stand to testify]." Roche, 690

N.E.2d at 1123. The district court held

that this was an "unreasonable

application of" Strickland, stating that

"Roche’s counsel’s failure to object on

the record to the use of shackles is a

clear example of deficient performance."

Roche, 132 F. Supp.2d at 704. At the

post-conviction hearing, a bailiff’s

testimony indicated that there was no

drape covering Roche’s shackles. Further,

a witness recounted that during her

testimony at trial, she could see Roche’s

shackles from the witness box. Most

importantly, the jury box was directly

next to the witness box, and therefore,

Roche’s shackles were "readily visible"

to the jury. Fountain, 211 F.3d at 435.

Thus, not only did counsel fail to

object to Roche’s shackling, he also

failed to ensure that Roche’s shackles

would not be visible to the jury while

Roche was sitting at counsel’s table

during the entire trial. Accordingly, the

issue that we are presented with is

whether counsel’s failure to object to

Roche’s shackling plus his failure to

ensure that the jury could not see the

shackles constituted deficient

performance. Cf. Harrell, 672 F.2d at

636-37 (drawing a distinction between

cases where jury was "aware of" shackles

because no precautions were taken and

cases where precautions were taken to

conceal shackles from jury).

While the Indiana Supreme Court

considered counsel’s efforts to ensure

that the jury would not see

Roche’sshackles when Roche testified,

counsel’s failure to do so while Roche

was sitting at counsel’s table during

trial and during the sentencing hearing

was not addressed. Therefore, given that

the key inquiry in shackling cases is

whether the shackles were "readily

visible" to the jury, Fountain, 211 F.3d

at 435, we hold that in this case, the

Indiana Supreme Court’s determination

that counsel was not deficient was

unreasonable.

Nevertheless, with respect to the guilt

phase, Roche cannot establish that but

for his counsel’s deficient performance,

the outcome of his trial would have been

different. See Strickland, 466 U.S. at

694. In Fountain, we held that "in light

of the substantial evidence of [the

petitioner’s] guilt posited at trial,"

the petitioner could not show that he was

prejudiced by "his counsel’s failure to

object to . . . the jury’s observation of

his shackles." 211 F.3d at 436. We held:

All of the events leading up to [the

petitioner’s] involvement in the murder .

. . from the pre-murder planning, to the

murder itself and the post-murder

admissions, were established and

corroborated by witness testimony and

physical evidence. Thus . . .

[petitioner] has failed to establish that

he was prejudiced by the allegedly

defective assistance of counsel.

Id. (footnote omitted). In our case, the

evidence showed that Roche planned the

homicides with Niksich and told Duszynski

that "he had some guys downstairs that he

was going to shoot because [they] owed

somebody $120." Further, on numerous

occasions, Roche bragged to his friends

that he had killed Graves and Brown and

cut out a newspaper article discussing

the homicides. Finally, he confessed his

involvement in the homicides on a

television news broadcast, to the police,

and to a corrections officer. Thus,

because of the overwhelming evidence of

Roche’s guilt, we cannot say that there

was a "reasonable probability" that but

for counsel’s deficient performance, the

result of the guilt phase of his trial

would have been different. Strickland,

466 U.S. at 694.

However, we cannot reach the same

conclusion with respect to the outcome of

the penalty phase. During the sentencing

hearing, there was considerable evidence

concerning the mitigating circumstances

to be considered under Ind. Code sec. 35-

50-2-9(c). For example, the PSR indicated

the circumstances of Roche’s troubled

childhood and alcohol and drug problems,

Roche’s criminal history was relatively

minor, and Roche’s family members

testified about Roche’s remorse and about

their improved relations with him. In

fact, after eight hours of deliberation,

the jury was unable to recommend the

death penalty for Roche. While not

second-guessing the trial judge’s

determination on this issue, we note that

whether the aggravating circumstances

outweighed the mitigating circumstances

in this case was apparently a closer call

than whether there was sufficient

evidence of Roche’s guilt during the

guilt phase. Moreover, given the extreme

inherent prejudice associated with

shackling, see, e.g., Harrell, 672 F.3d

at 637, and the considerable mitigating

evidence, we agree with the district

court and conclude that Roche has

established that there was a "reasonable

probability" that but for his counsel’s

deficient performance, the result of his

sentencing hearing would have been

different. Strickland, 466 U.S. at 694.

In granting Roche’s habeas petition, the

district court held that it would "order

Roche sentenced to life without parole."

Roche, 132 F. Supp.2d at 704. However, at

the time of Roche’s offense, a sentence

of life without parole was not an option

under Indiana law, and the subsequently

enacted life without parole statute

cannot be applied retroactively. See

Alcorn v. State, 638 N.E.2d 1242, 1244-45

(Ind. 1994) (stating that life without

parole provision only applies to murders

committed after June 30, 1993).

Therefore, although we affirm the

district court’s grant of Roche’s habeas

petition, we vacate its order for

modification of his sentence and remand

for the issuance of an order returning

the case to state court and directing

that Roche receive a new sentencing

hearing. Roche’s other arguments on

appeal for why he should receive a new

trial are without merit and warrant no

discussion. Further, because we are

ordering that Roche receive a new

sentencing hearing, we need not address

his argument that he received ineffective

assistance of counsel during his initial

sentencing hearing.

III. Conclusion

The district court’s grant of habeas

corpus is Affirmed; the disposition of

resentencing by the district court is

Vacated; and the case is Remanded to the

district court for return to the Indiana

state court for resentencing.

FOOTNOTES

/* Cecil Davis, Superintendent, has been substituted

as appellant for Rondle Anderson, pursuant to

Fed. R. App. P. 43(c).

/1 The Indiana Code provides that a "person who

knowingly or intentionally kills another human

being commits murder, a felony." Ind. Code sec.

35-42-1-1(1). Further, it provides that a "person

who . . . kills another human being while commit-

ting or attempting to commit . . . robbery . . .

commits murder, a felony." Id. at sec. 35-42-1-

1(2). In turn, the Indiana Code provides that a

"person who knowingly or intentionally takes

property from another person . . . by using or

threatening the use of force on any person . . .

commits robbery." Id. at sec. 35-42-5-1.

/2 The record does not identify in which newspaper

this article appeared.

/3 AEDPA also allows habeas relief when the state

court’s determination of the facts was unreason-

able in light of the evidence presented. 28

U.S.C. sec. 2254(d). However, Roche has not

raised such a claim so we need not consider this

prong of the statute.