Wrinkles, Matthew E. v. Levenhagen, Mark

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-2747

MATTHEW E. WRINKLES,

Petitioner-Appellant,

v.

ED BUSS, Superintendent,1

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 01 C 1668—John Daniel Tinder, Judge.

____________

ARGUED SEPTEMBER 15, 2006—DECIDED AUGUST 12, 2008

____________

Before FLAUM, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. This case is before the court on

collateral review. In 1995, a Vanderburgh, Indiana, Cir-

cuit Court jury convicted Matthew Wrinkles of murdering

his wife, his wife’s brother, and his sister-in-law. The jury

recommended and Judge Richard L. Young imposed a

death sentence. Wrinkles unsuccessfully appealed his

conviction and sentence to the Indiana Supreme Court, and

1

Ed Buss, who became superintendent of the Indiana State

Prison after this appeal was filed, has been substituted for

Daniel McBride as the appellee. See Fed. R. App. P. 43(c)(2).

2 No. 05-2747

thereafter, Judge Carl Heldt of the Vanderburgh Circuit

Court denied his request for post-conviction relief. Wrin-

kles then filed a petition for a writ of habeas corpus, 28

U.S.C. § 2254, in the United States District Court for the

Southern District of Indiana. Wrinkles argued that his

constitutional rights were violated during the trial and

sentencing proceedings because, pursuant to the Indiana

trial judge’s blanket policy of restraint, he was required to

wear a stun belt that he alleges was visible to the jury.

Wrinkles was barred from raising a direct challenge to

the constitutionality of the stun belt because he procedur-

ally defaulted the claim in state court. Wrinkles instead

claimed that he received ineffective assistance of coun-

sel under Strickland v. Washington, 466 U.S. 668 (1984),

because his counsel failed to object to the imposition of

the stun-belt restraint. With respect to the prejudice prong

of Strickland, Wrinkles claimed that the jurors saw the

stun belt, and that he presumptively suffered prejudice

as a result. United States District Judge, John Daniel Tinder,

concluded that Wrinkles could not demonstrate prejudice

because the jury was not aware of the stun belt.

Wrinkles’s habeas claim hinges on whether the jurors

saw the stun belt during the trial and the sentencing

proceedings. One passage in the Indiana Supreme

Court’s opinion—actually, one sentence—complicates

our review. We ultimately conclude that the Indiana

Supreme Court made no factual finding regarding the

belt’s visibility. The last state-court decision on point—the

post-conviction court decision—holds that the jurors

did not see the belt. We defer to that finding and agree with

the district court that Wrinkles suffered no prejudice from

his counsels’ failure to object to the stun belt.

No. 05-2747 3

I. HISTORY

A. Factual history

By the spring of 1994, the marriage of Matthew and

Debbie Wrinkles was coming to an end. On May 3, 1994,

police were dispatched to the Wrinkles’ home in re-

sponse to a report of gunfire. Wrinkles told the responding

officers that he and Debbie were having financial and

marital problems and that he would kill Debbie if she

ever left him. David Plemmons, a witness to the events,

would later testify that Wrinkles pointed a gun at Debbie

during the argument and the gun discharged when

Debbie grabbed it. According to Plemmons, Wrinkles

hid the gun when the police arrived, and Debbie and

Plemmons “covered” for Wrinkles by lying to the police

about the incident. The Indiana Supreme Court later

characterized the Wrinkles’ relationship as “stormy and

often violent.” Wrinkles v. State, 690 N.E.2d 1156, 1159 (Ind.

1997) (“Wrinkles I”), cert. denied, 525 U.S. 861 (1998).

In June 1994, Debbie moved herself and the

children—Lindsay, age thirteen, and Seth, age eight—to the

home of Mark and Natalie Fulkerson, Debbie’s brother

and sister-in-law. This move marked the end of Wrinkles

and Debbie’s marriage, and Debbie filed for divorce on

June 30. A few weeks later, on July 20, Wrinkles and

Debbie attended a provisional divorce hearing, during

which it was decided that Debbie would have custody

of the children and Wrinkles would have visitation

rights. Wrinkles and Debbie agreed to a meet at a fast-food

restaurant later that day so that Wrinkles could see his

children. But Debbie did not show that afternoon as

scheduled.

Wrinkles had hit a low point in his life. He had a

close relationship with his children and he believed that

4 No. 05-2747

his estranged wife and her family were conspiring to

deny him access to the children. In addition to his marital

problems, the automotive-repair business that he ran out

of his garage was failing. Several zoning complaints had

been made against his business and he was forced to

shut down. Wrinkles had also been dependent on metham-

phetamine for some time, and this dependence caused

him to become easily agitated and paranoid. In addition

to his mental and emotional decay, his drug use caused

him to wither away physically. Wrinkles’s addiction

kept him from sleeping, except sporadically, and he lost

sixty pounds in a three-month period.

Wrinkles’s obvious decline had begun to terrify Debbie.

Her friend would testify at trial that Debbie had become

a “nervous wreck.” Id. at 1159. She had begun to take

“medication [and] every time she heard a noise she

would jump cause she was scared. And . . . she had to

sleep with a gun underneath her pillow [because] she

was scared” of Wrinkles.

Debbie’s failure to appear with the children at the fast-

food restaurant on July 20 set into motion a tragic series

of events. Wrinkles called to complain to his divorce

attorney, who told Wrinkles that nothing could be done

until the next day because the courts had already closed.

Wrinkles then called the Fulkerson home to speak with

Debbie, but she was not there. Debbie returned Wrinkles’s

call later that evening, but she did not get an answer.

Eventually, Debbie and the rest of the Fulkerson house-

hold turned in for the night on July 20. Given the growing

tension in their lives, it was an uneasy rest; both Mark

Fulkerson and Debbie had guns with them in their bed-

rooms.

Wrinkles drove to the Fulkerson home at approximately

2:00 a.m. on July 21, and parked his truck about one block

No. 05-2747 5

from the home. He was wearing camouflage clothing, had

painted his face, and was armed with a .357 magnum

revolver and a knife. He climbed over a fence into the

Fulkersons’ backyard. He cut the telephone wires and

kicked in the back door, entering the home.

Wrinkles went down the hallway and into the

Fulkersons’ bedroom, where he shot Mark Fulkerson

four times, killing him in front of his three-year-old son,

Matthew. Debbie was awakened by the gunshots. She

grabbed her gun and ran to the hallway where she con-

fronted Wrinkles. She fired and hit him in the arm, knock-

ing herself down in the process. At that point, Lindsay

Wrinkles had also awakened and had come upon the

confrontation between her parents. She saw that her

father was about to shoot her mother and she “pleaded,

‘Dad, please don’t shoot Mom.’ ” Wrinkles v. State, 749

N.E.2d 1179, 1186 (Ind. 2001) (“Wrinkles II”), cert. denied,

535 U.S. 1019 (2002). Wrinkles responded by telling

Lindsay to “shut up,” and then he promptly shot Debbie.

During the commotion, Natalie Fulkerson made her

way to the living room and out the front door, in an

attempt to flee. Wrinkles gave chase and caught Natalie on

the front porch, shooting her in her face at close range.

Natalie died on the porch. Wrinkles fled. The Fulkersons’

ten-year-old daughter, Kimberly, and her 19-year-old

cousin, Tracy, ran to neighbors’ houses for help.

Wrinkles was arrested later that morning in a neighbor-

ing county and was charged with three counts of murder,

pursuant to Ind. Code § 35-42-1-1(1), for knowingly

killing his victims. The state filed notice of its intent to

seek the death penalty on July 28, 1994. Under Indiana

law, the state can seek the death penalty when a defend-

ant commits multiple murders. Ind. Code § 35-50-2-9(b)(8).

6 No. 05-2747

B. Procedural history

Based on their pre-trial investigations, Wrinkles’s

attorneys’ theory of his defense centered on the fact that,

at the time of the crimes, Wrinkles was in the midst of a

very difficult period in his life. The attorneys decided to

stress the loss of Wrinkles’s business, the break-up of his

marriage, and his perception that Debbie and the

Fulkersons were trying to keep his children from him. The

defense argued that Wrinkles had broken into the

Fulkersons’ home with the intent of retrieving his children

because he feared that he would never see them again—a

paranoia magnified by his methamphetamine addiction.

The paranoia was further enhanced when, according to

Wrinkles, his victims confronted him with guns when he

entered the home. Wrinkles also would cast Debbie as

the aggressor in their confrontation in the hallway; he

would testify that Debbie said, “Die, you bastard, die,”

when she shot him. Wrinkles I, 690 N.E.2d at 1159.

This strategy was necessary given the facts of the

case. First, there was no dispute that Wrinkles had shot the

three victims, and therefore Wrinkles’s motivation for

the shootings would be the primary issue at trial. And

Wrinkles’s state of mind would likewise be a significant

issue for sentencing in terms of whether the death penalty

or a lesser sentence was appropriate. In addition, the

attorneys concluded that although Wrinkles’s mental

state might impact his culpability and sentence, the facts

did not support an insanity defense. A neuropsychologist

enlisted by Wrinkles’s attorneys concluded that, while

Wrinkles suffered from a Mixed Personality Disorder

and a Delusional Disorder that became more intense

during the weeks leading up to the shootings, and while

Wrinkles’s judgment was substantially impaired at the

No. 05-2747 7

time of the shootings, he was nonetheless sane because

he had known what he was doing and was able to con-

form his conduct to the requirements of the law.

Before trial commenced, the trial judge informed

Wrinkles’s counsel that Wrinkles would have to wear some

sort of restraining device—either shackles or a stun belt.

The trial court did not make a specific finding that Wrin-

kles presented a risk of danger, escape, or court-

room disruption. But “the trial court apparently [had] a

policy of requiring defendants to wear restraints regard-

less of whether they [had] previously exhibited any

conduct justifying restraints.” Wrinkles II, 749 N.E.2d at

1195. According to the Indiana Supreme Court in Wrinkles

II, a stun belt is a restraining device that is placed around

an individual’s waist as an alternative to leg-irons or

shackles. The battery-powered belt has two prongs that

are placed over the wearer’s kidney region. A court bailiff

or other law-enforcement officer can activate the belt by

a remote control and, once activated, it sends a shock to

the wearer that cannot be stopped. The electrical shock

travels through the body via blood channels and nerve

pathways. The shock knocks down most people, incapaci-

tates them for up to 45 minutes, and causes them to

shake uncontrollably. The individual may also have

uncontrollable defecation and urination, irregular heart-

beats, seizures, and welts, due to the shock. Wrinkles’s

attorneys did not object to the mandatory restraint

policy. When faced with the choice of shackles or a

stun belt, they opted for the latter, reasoning that there

was less likelihood that the jury would see the belt during

trial.

A jury found Wrinkles guilty of all three counts of

murder, and recommended the death penalty; the trial

8 No. 05-2747

judge sentenced Wrinkles to death. Wrinkles appealed

his conviction and death sentence, raising a number of

evidentiary claims and challenging both Indiana’s death-

penalty statute and his own sentence. He did not, how-

ever, appeal the trial court’s blanket policy of requiring

him to wear the stun belt at trial. Unpersuaded, the Indi-

ana Supreme Court affirmed Wrinkles’s convictions

and sentence (Wrinkles I).

Thereafter, Wrinkles filed a petition for post-conviction

relief, in which he challenged the constitutionality of the

stun belt and raised ineffective-assistance-of-counsel

claims, among other claims. Central to his claim for post-

conviction relief were three affidavits from jurors in his

trial who claimed to have seen the stun belt. The post-

conviction court discounted the reliability of the affidavits

and upheld Wrinkles’s convictions and sentence:

The trial court did not strip the presumption of

innocence from Petitioner by requiring him to wear

the belt. The purpose of the belt is to maintain

control over a prisoner without the prisoner appear-

ing restrained. Petitioner did not prove that the belt

was visible or that the jury knew about it. The

affidavits from three jurors that they knew about

the belt from the trial court, the bailiff, and/or

newspaper articles read after trial, and Petitioner’s

appearance during trial are insufficient. First, the

juror affidavits are inconsistent with each other.

One juror stated that the jury was not told why

Petitioner wore the belt, while another juror

averred that the trial court told the jury about the

belt to assure the jurors that they would be safe.

Second, some of the juror affidavits are inconsistent

with bailiff Todd Woodmansee’s affidavit that he

did not tell the jury about the belt. Third, both [of

No. 05-2747 9

Wrinkles’s attorneys] testified that the belt was not

visible during trial. Fourth, the juror affidavits

were not subjected to cross-examination. Because

petitioner did not appear restrained during

the trial, he was not stripped of the presumption of

innocence.

Vanderburgh Circuit Court’s Findings of Fact, Conclusions

of Law and Judgment on Petition for Post Conviction

Relief, Wrinkles v. State, No. 82C01-9407-CF-447 (Sept. 3,

1999) (emphasis in original).

After the post-conviction court rendered its decision,

Wrinkles filed with that court a Motion to Correct Error,

to which he attached new affidavits from additional

jurors, who claimed to have seen the stun belt during

trial. The post-conviction court did not grant Wrinkles’s

motion, nor did it admit the additional juror affidavits

into evidence.

Wrinkles then appealed the post-conviction court’s ruling

to the Indiana Supreme Court. Relying on Indiana law,

the supreme court in Wrinkles II prospectively banned the

use of stun belts in Indiana courts. The court was specifi-

cally concerned with the mental impact on a defendant

who might be afraid about the potential infliction of pain

from the belt, and how this mental concern could impact

the defendant’s ability to participate in his own defense.

Wrinkles II, 749 N.E.2d at 1194.

But the Indiana Supreme Court denied Wrinkles the

benefit of its holding. The court held that Wrinkles’s

claim was procedurally defaulted because Wrinkles had

failed to raise the issue on direct appeal. In addition,

the court held that Wrinkles had not suffered from inef-

fective assistance of counsel when his attorneys failed to

10 No. 05-2747

object to the use of the stun belt at his trial. The court

characterized Wrinkles’s attorneys’ choice to acquiesce to

the stun belt as a “strategic decision”:

Before trial began, the trial court informed counsel

that Wrinkles would have to wear either shackles

or a stun belt during trial. Without objection coun-

sel chose a stun belt, and Wrinkles claims they

rendered ineffective assistance as a result. We

disagree. Although with this opinion we declare

that stun belts no longer have a place in Indiana

courtrooms, that was not the case at the time of

Wrinkles’ trial. Our prohibition is motivated

primarily by the potential effect a stun belt may

have upon the person wearing the device. How-

ever, without the benefit of this declaration, coun-

sel were concerned about the effect on the jurors if

they were to observe their client wearing

a particular device. Counsel believed that the

chance of the jury seeing the shackles was fairly

high. On the other hand, counsel opted for the stun

belt because they thought that jurors would not be

able to see it. Obviously, they were later proven

wrong. However, at the time the decision was

made, it was a prudent one.

Wrinkles filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2554, in the United States District Court

for the Southern District of Indiana. He presented a host of

arguments, all of which Judge Tinder, rejected. Wrinkles v.

McBride, No. IP 01-1668-C-T/K (D. Ind. May 18, 2005)

(Entry Discussing Petition for Writ of Habeas Corpus).

With respect to the constitutionality of the stun belt

itself, the district court held that the claim could not be

presented under § 2254 because it had been procedurally

No. 05-2747 11

defaulted in state-court proceedings. Further, Judge Tinder

held that even if the claim had not been waived, it lacked

merit. Judge Tinder credited the post-conviction court’s

finding that the jurors were not aware of the stun belt and

the belt was not visible.

Thereafter, Wrinkles filed a Request for Certificate of

Appealability (“C.A.”) on two issues: (1) “Whether [he]

was unconstitutionally restrained by virtue of wearing a

stun belt at his trial,” and (2) “Whether [his] counsel

rendered ineffective assistance of counsel at the ‘guilt

phase’ of trial.” Judge Tinder granted Wrinkles a C.A. on

the issue of the constitutionality of the use of the stun

belt, but denied the request as to his ineffective-assistance-

of-counsel claims. This appeal followed.

II. ANALYSIS

On appeal, Wrinkles’s first argues that the district

court erred in finding that his stun-belt claim was proce-

durally defaulted because the default was the result of

ineffective assistance of counsel. As for his freestanding

constitutional claim, he argues that his Sixth, Eighth,

and Fourteenth Amendment rights were violated when

he was forced to wear the stun belt without an inde-

pendent assessment of the need for restraints.2

2

Wrinkles also seeks an expansion of the C.A. to include his

non-stun-belt ineffective-assistance-of-counsel arguments. For

the reasons stated by the district court, we deny his request

to expand the C.A. to include the additional claims on appeal.

See Herrera v. United States, 96 F.3d 1010, 1013 (7th Cir. 1996).

12 No. 05-2747

A. Procedural default

Before analyzing Wrinkles’s substantive § 2254 claims,

we must first determine whether Wrinkles procedurally

defaulted his argument that wearing the stun belt vio-

lated his constitutional rights. Lee v. Davis, 328 F.3d 896,

899 (7th Cir. 2003) (“As a threshold matter, we must

determine whether Lee has procedurally defaulted his

argument . . . .”). The district court decided that Wrinkles

had defaulted his argument—a decision we review

de novo. Id. As a general matter, considerations of

“finality, comity, and the orderly administration of

justice” preclude this court from reaching claims that a

habeas petitioner has procedurally defaulted in state

court. Dretke v. Haley, 541 U.S. 386, 388 (2004). The crim-

inal trial is a “decisive and portentous event” and, as

such, the state has an interest in ensuring timely com-

pliance with those procedures that permit the jury accu-

rately to “decide, within the limits of human fallibility, the

question of guilt or innocence of one of its citizens.”

Wainwright v. Sykes, 433 U.S. 72, 90 (1977). For these

reasons, a valid state procedural rule constitutes an

“adequate and independent state ground” for resolving

an issue, precluding this court from doing so collaterally.

Id. at 86-87.

Wrinkles sought federal habeas corpus review of federal-

law issues that the Indiana Supreme Court disposed of

based on adequate and independent state-law grounds.

Specifically, Wrinkles’s “freestanding” stun belt claims—

that his rights to a fair trial under the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United States Con-

stitution were violated when he was required to wear

a stun belt without a hearing—were deemed by the Indi-

ana Supreme Court to have been waived as a matter of

No. 05-2747 13

state law. Wrinkles II, 749 N.E.2d at 1186-87 & 1187 n.3. The

procedural rule cited by the Indiana Supreme Court

provides an “adequate and independent state ground” for

resolving Wrinkles’s constitutional claims. Indiana

courts have long recognized, and the Wrinkles II court

reaffirmed, that “[c]laims that are available, but not

presented, on direct appeal are waived for post-convic-

tion review unless the claimed error is fundamental.” Id.

at 1187 n.3; see also Adams v. State, 575 N.E.2d 625, 628

(Ind. 1991). Thus, the district court was correct to con-

clude that Wrinkles’s substantive claim was procedurally

barred.

B. Excuse for procedural default

To keep his freestanding constitutional claim alive,

Wrinkles argues that his procedural default is excusable

under the standard set forth in Wainwright v. Sykes, 433

U.S. at 90. A defendant may overcome procedural default

by showing both “cause” for failing to abide by the

state procedural rules, and a resulting “prejudice” from

that failure.3 Id. at 87. Specifically, Wrinkles argues that

3

The Supreme Court has recognized an additional way to

avoid procedural default if the default would result in a

“fundamental miscarriage[ ] of justice.” Murray v. Carrier, 477

U.S. 478, 496 (1986). See generally 6 Wayne R. LaFave, et al.,

Criminal Procedure 64-65 (2d ed. 2004). A miscarriage of

justice exists in the “extraordinary case, where a constitutional

violation has probably resulted in the conviction of one who

is actually innocent.” Murray, 477 U.S. at 496. In the capital

context, one can show “actual innocence” through “clear and

convincing evidence that, but for a constitutional error, no

(continued...)

14 No. 05-2747

the freestanding stun-belt claim is procedurally defaulted

solely because of his trial attorneys’ ignorance of the law,

a fact that renders his counsel ineffective and that pro-

vides cause to excuse a procedural default. Murray, 477

U.S. at 496.

Attorney error rising to the level of ineffective assist-

ance of counsel can constitute cause to set aside pro-

cedural default. Franklin v. Gilmore, 188 F.3d 877, 883 (7th

Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 753-54

(1991); Barnhill v. Flannigan, 42 F.3d 1074, 1078 (7th Cir.

1994)). When a habeas petitioner seeks to excuse a proce-

dural default through an ineffective-assistance claim, the

“cause” and “prejudice” test from Wainwright is replaced

by the similar test for ineffective assistance set out in

Strickland v. Washington, 466 U.S. at 668. See Murray, 477

U.S. at 479 (“So long as a defendant is represented by

counsel whose performance is not constitutionally inef-

fective . . . there is no inequity in requiring him to bear

the risk of attorney error that results in a procedural

default.”); see also Lee, 328 F.3d at 900.

“To establish ineffective assistance of counsel, the

[petitioner] must show that counsel’s performance was

deficient and that the deficient performance prejudiced

the [petitioner].” Almonacid v. United States, 476 F.3d 518,

521 (7th Cir. 2007) (citing Strickland, 466 U.S. at 687). A

3

(...continued)

reasonable juror would have found the petitioner eligible for

the death penalty under the applicable state law.” Sawyer v.

Whitley, 505 U.S. 333, 336 (1992). Wrinkles has not, and cannot,

make any claim of innocence. As for his sentence, although

Wrinkles has not raised this issue, this analysis closely mirrors

our analysis under the prejudice prong of Strickland.

No. 05-2747 15

“constitutionally deficient performance is one that falls

below an objective standard of reasonableness under

prevailing professional norms.” Shell v. United States, 448

F.3d 951, 954-55 (7th Cir. 2006) (citing Granada v. United

States, 51 F.3d 82, 83 (7th Cir. 1995)). And to show preju-

dice, the defendant must prove that “ ‘there is a reason-

able probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different. A reasonable probability is a probability suffi-

cient to undermine confidence in the outcome.’ ” Raygoza

v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007) (quoting Strick-

land, 466 U.S. at 694). In Wrinkles’s case, if his attorneys’

decision not to object to the stun belt fell short of objec-

tively reasonable performance and prejudiced him, the

Sixth Amendment was not satisfied and this court

will excuse Wrinkles’s procedural default.

Wrinkles’s ineffective-assistance claim was preserved

for collateral review. Lee, 328 F.3d at 901 (citing Edwards

v. Carpenter, 529 U.S. 446 (2000)). The Indiana Supreme

Court reached—and ultimately rejected—Wrinkles’s

claim as an excuse for his procedural default. In re-

viewing the Indiana Supreme Court’s decision, we are

deferential towards its legal and factual conclusions.

Raygoza, 474 F.3d at 963; Neumann v. Jordan, 84 F.3d 985,

987 (7th Cir. 1996) (“In reviewing the state court pro-

ceedings, we presume that the factual findings of the

state court are correct if those findings follow a hearing

on the merits and are fairly supported by the record.”).

Likewise, the Indiana Supreme Court’s legal conclusions

will be upheld unless they resulted in a decision that

was “(1) contrary to, or involved an unreasonable applica-

tion of, clearly established federal law, as determined by

the Supreme Court of the United States; or (2) based on

16 No. 05-2747

an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

1. Substandard performance by counsel

Wrinkles argues, and we agree, that his counsel’s perfor-

mance at trial fell below prevailing norms of professional

behavior. The Indiana Supreme Court correctly identi-

fied Strickland as the governing law; thus, Wrinkles will

only gain relief if the court unreasonably applied the

standard to the facts of his case. 28 U.S.C. § 2254(d)(2). In

evaluating the reasonableness of the Indiana Supreme

Court’s application of Strickland, we must ask whether

the court was “objectively unreasonable,” Williams v.

Taylor, 529 U.S. 362, 409 (2000), meaning that its rea-

soning falls outside of the “ ‘boundaries of permissible

differences of opinion.’ ” Raygoza, 474 F.3d at 964 (quoting

Hardaway v. Taylor, 302 F.3d 757, 762 (7th Cir. 2002)).

The Indiana Supreme Court held that Wrinkles’s coun-

sels’ decision not to object to the stun belt at trial was

strategic and thus adequate. The supreme court first

noted that the Indiana trial court had a stated “policy” of

“requiring defendants to wear restraints regardless of

whether they have previously exhibited any conduct

justifying restraints.” Wrinkles II, 749 N.E.2d at 1195. The

trial court had given Wrinkles’s attorneys the choice of

wearing shackles or the stun belt at trial. Because they

thought that “the chance of the jury seeing the shackles

was fairly high,” Wrinkles’s attorneys chose the stun

belt. Id. The supreme court characterized this as a

“strategic decision” because, unlike shackles, Wrinkles’s

attorneys “thought the jurors would not be able to see” the

No. 05-2747 17

belt. Id. In addition, because the trial court would

have overruled any objection to the stun belt—per its

stated restraint “policy”—Wrinkles could not demonstrate

that his trial would have been any different if his attor-

neys had objected. Id. (“[E]ven though the trial court’s

policy would not likely withstand appellate scrutiny if

the issue were presented, it is apparent that at least at

the time of Wrinkles’s trial, an objection to wearing re-

straints would not have been sustained by the trial judge

even if made.”). Thus, the supreme court concluded, the

decision was strategic and Wrinkles could not show a

substandard performance by his trial counsel. We disagree.

At the time of Wrinkles’s trial, it was well established

that a trial court could not restrain a criminal defendant

absent a particularized justification. In Illinois v. Allen, the

Supreme Court held that a defendant could forfeit his

Sixth Amendment right to be present and unrestrained

at his own trial. 397 U.S. 337 (1970). The Court sanctioned

the use of physical restraints “as a last resort,” id. at 344,

and articulated a framework for handling “obstreperous”

defendants that tied the trial court’s response to the

seriousness of the defendant’s conduct, id. at 343-42. The

Court applied this framework next in Estelle v. Williams, 425

U.S. 501 (1976), in which the defendant appeared before the

jury in prison garb. Unlike Allen, which recognized “the

substantial need to impose physical restraints upon

contumacious defendants,” the Court in Estelle decided that

forcing “an accused to wear jail clothing further[ed] no

essential state policy.” Id. at 505.

Again in Holbrook v. Flynn, 475 U.S. 560, 569 (1986), the

Supreme Court applied this framework when evaluating

the presence of armed guards at a defendant’s trial. The

Court concluded that the presence of armed guards

18 No. 05-2747

was not the “sort of inherently prejudicial practice that,

like shackling, should be permitted only where justified

by an essential state interest specific to each trial.” Id. at

568-69. The need for a particularized justification had not

gone unnoticed by Indiana courts either. The Indiana

Supreme Court held in Coates v. State, that particularized

reasoning must support a decision to restrain a defendant,

going so far as to require that “the facts and reasoning

supporting the trial judge’s determination that restraints

are necessary must be placed on the record.” 487 N.E.2d

167, 168-69 (Ind. 1985).

In Wrinkles’s case, his attorneys did not object to the

use of the stun belt because they concluded that the

trial court was going to require restraints no matter what.

But these cases make clear that particularized reasoning

must support any decision to restrain a defendant. In

light of the wealth of caselaw prohibiting the trial

court’s blanket policy, by standing mute, Wrinkles’s

counsel failed to provide adequate legal assistance. Failing

to object when a trial court presents two impermissible

options—shackles or a stun belt, neither supported by

individualized justification—cannot be an objectively

reasonable tack under prevailing norms of professional

behavior. See Strickland, 466 U.S. at 686 (“Counsel, however,

can also deprive a defendant of the right to effective

assistance, simply by failing to render ‘adequate legal

assistance.’ ”); see also Barrow v. Uchtman, 398 F.3d 597, 605

(7th Cir. 2005) (holding ignorance of relevant law objec-

tively deficient under Strickland); Dixon v. Snyder,

266 F.3d 693, 703 (7th Cir. 2001) (same). Counsels’ choice

between two unconstitutional options is not a strategic

choice worth deference. Accordingly, the Indiana Su-

preme Court unreasonably applied Strickland’s first prong.

No. 05-2747 19

2. Prejudice

Standing alone, the attorneys’ failure to request an

inquiry into the justification for the stun belt is not ineffec-

tive assistance. Some prejudice is required before a trial

counsel’s performance falls below the constitutional

minimum. Strickland, 466 U.S. at 691-692. Without demon-

strating prejudice, Wrinkles cannot receive relief on the

ground of ineffective assistance of counsel, id., or on the

basis of his freestanding constitutional claims regarding

the stun belt, because the latter claim was procedurally

defaulted at the state level.

Wrinkles argues that he was prejudiced because, in his

opinion, the jurors were aware that he was restrained

by the stun belt and were thus more inclined to view him

as a dangerous person. In turn, he argues, the jurors

were more likely to determine that he had the requisite

mindset to commit murder, instead of a lesser crime, and

were more willing to vote for the death penalty. If the

jurors did see the stun belt during trial, then Wrinkles

could demonstrate prejudice. See Allen, 397 U.S. at 344;

Roche, 291 F.3d at 482-83; Harrell v. Israel, 672 F.2d 632,

635 (7th Cir. 1986) (“[C]ourts must guard against prac-

tices which unnecessarily mark the defendants as a dan-

gerous character or suggest that his guilt is a foregone

conclusion.”). Thus, Wrinkles’s habeas petition hinges

on the belt’s visibility; the belt’s visibility is a question of

fact that was resolved by the state post-conviction court

and upheld by the Indiana Supreme Court.

The post-conviction court determined that Wrinkles

had not demonstrated that the jurors had seen the stun

belt or that Wrinkles had otherwise been affected by it.

The Indiana Supreme Court affirmed the post-conviction

court. Wrinkles contends, however, that the supreme

20 No. 05-2747

court made an implicit factual finding that the belt was

visible to the jury. He bases his argument on a state-

ment in Wrinkles II that indicates that Wrinkles’s attor-

neys “were later proven wrong.”4 This sentence follows

the court’s discussion of the attorneys’ decision not to

challenge the trial court’s imposition of the stun belt-

restraint:

4

Wrinkles also claims that the Indiana Supreme Court recog-

nized that the stun belt was “conspicuous to at least seven

jurors.” However, Wrinkles takes this quotation in Wrinkles II

out of context. The full sentence is one of three in a paragraph

the Indiana Supreme Court uses solely to summarize Wrinkles’s

ineffective-assistance-of-counsel argument with respect to the

stun belt. The entire sentence reads: “Wrinkles asserts that

utilization of the stun belt, which was conspicuous to at least

seven jurors, undermined his presumption of innocence and

made him appear dangerous and uncontrollable in front of the

jurors who would help decide whether he would live or die.”

Wrinkles II, 749 N.E.2d at 1192 (citing Appellant’s Br. at 29;

Appellant’s Reply Br. at 11). The sentence begins with “Wrinkles

asserts.” The preceding sentence in the paragraph, which

introduces Wrinkles’s argument, begins with, “Wrinkles

contends.” The subsequent sentence starts with, “He claims.”

Taken in context, it is clear that the Indiana Supreme Court

was merely presenting Wrinkles’s argument, including his

argument that the belt was visible to seven jurors.

We cannot fathom the notion that, in the middle of three

paraphrasing sentences, the Wrinkles II court would have

perfunctorily inserted a clause containing a factual finding,

without indicating it as such. Courts often present a party’s

argument in order to present the issue it will proceed to con-

sider, and it is apparent that the Indiana Supreme Court was

doing this in Wrinkles II. Consequently, we reject Wrinkles’s

argument that this clause is a finding of fact by the Wrinkles II

court that the stun belt was visible to jurors.

No. 05-2747 21

Before trial began, the trial court informed counsel

that Wrinkles would have to wear either shackles

or a stun belt during trial. Without objection coun-

sel chose a stun belt, and Wrinkles claims they

rendered ineffective assistance as a result. We

disagree. Although with this opinion we declare

that stun belts no longer have a place in Indiana

courtrooms, that was not the case at the time of

Wrinkles’ trial. Our prohibition is motivated

primarily by the potential effect a stun belt may

have upon the person wearing the device. How-

ever, without the benefit of this declaration, coun-

sel were concerned about the effect on the jurors if

they were to observe their client wearing a particu-

lar device. Counsel believed that the chance of the

jury seeing the shackles was fairly high. On the

other hand, counsel opted for the stun belt because

they thought that jurors would not be able to see it.

Obviously, they were later proven wrong. How-

ever, at the time the decision was made, it was a

prudent one.

Wrinkles II, 749 N.E.2d at 1195.

Wrinkles believes the “Obviously, they were later

proven wrong” sentence amounts to a finding of fact by

the Indiana Supreme Court that the jurors saw the stun

belt. We disagree with that interpretation of the sentence.

To begin, we do not believe the Indiana Supreme Court

would have made a factual finding in this manner, espe-

cially as it affirmed the post-conviction court and did not

overturn any of the post-conviction court’s factual findings.

More importantly, we do not read this statement to

reveal anything about the stun belt’s visibility. Rather,

the statement reflects the Indiana Supreme Court’s opin-

ion that Wrinkles’s attorneys could not be faulted for

22 No. 05-2747

having taken into account only the potential visibility of

a particular restraint in deciding whether to object to a

court’s use of the restraint—because Indiana law at the

time focused on the harm stemming from visible restraints.

a. Indiana law on factual findings

In the “deferential and limited review” of 28 U.S.C.

§ 2254, “state court factual findings are presumed correct.”

Williams v. Bartow, 481 F.3d 492, 498 (7th Cir. 2007). On the

issue of the belt’s visibility, the state post-conviction court

considered three juror affidavits, affidavits from the trial

bailiff, and testimony from Wrinkles’s attorneys to decide

whether the jurors saw or knew about the stun belt. The

court discredited the juror affidavits. The affidavit of one

juror stated that at the time she served on the jury, she

was aware that Wrinkles was wearing a stun belt—she

said it “looked like a cumberbund [sic].” However, she

said she was unsure how she learned of the stun belt,

and that she may have learned of it through a newspaper

article she read after the trial. Another juror said in his

affidavit that he was aware that Wrinkles was wearing

a stun belt during his trial, and that he believed the trial

judge told the jurors about the stun belt to give the

jurors confidence in their safety. A third juror, in con-

trast, said that he thought the bailiff told the jury about

the stun belt, but he said the jury was not told why Wrin-

kles was wearing the belt. The post-conviction court

held that the affidavits were insufficient because they

were inconsistent with each other—calling into question

their credibility—and because they contradicted the

bailiff’s testimony, as well as Wrinkles’s attorneys’ testi-

mony. The bailiff swore in his affidavit that he “never

communicated to any of the jurors at any time during

the trial that [Wrinkles] was wearing a rack belt.”

No. 05-2747 23

After it had rendered its judgment denying Wrinkles’s

request for post-conviction relief, the post-conviction

court denied Wrinkles’s subsequent motion to correct error,

motion to reopen the evidence, and request for leave to

amend his petition for post-conviction relief. Wrinkles

proffered with each of these pleadings copies of four more

juror affidavits. (A fifth affidavit was attached to a motion

to supplement the motion to reopen the evidence.) How-

ever, these affidavits were never admitted into evidence by

the post-conviction court, and there is no indication

whatsoever that the Indiana Supreme Court weighed the

additional affidavits as part of its analysis in Wrinkles II.

Notably, Wrinkles did not raise as issues on appeal to the

Indiana Supreme Court the post-conviction court’s denial

of his post-judgment motions and request for leave to

amend his petition based on the additional juror affi-

davits. In Indiana, a motion to correct error does not

allow a party to present evidence it merely neglected to

present at trial, Roach v. State, 695 N.E.2d 934, 940 n.1 (Ind.

1998), and a motion to reopen the evidence lies within

the sound discretion of the trial judge, Walker v. State,

587 N.E.2d 675, 677 (Ind. 1992). A judge typically does

not abuse his discretion in refusing to reopen evidence

“when it plainly appears that such evidence could have

been offered earlier,” Preuss v. McWilliams, 230 N.E.2d 789,

792 (Ind. Ct. App. 1967), or when the proffered evidence is

cumulative, Oxendine v. Pub. Serv. Co. of Ind., Inc., 423

N.E.2d 612, 623 (Ind. Ct. App. 1980). The additional

affidavits Wrinkles sought to have admitted into the

evidentiary record of the post-conviction court were

never admitted—they remain mere attachments to state-

court motions and thus should not form the basis of a

federal habeas decision.

24 No. 05-2747

Having not appealed the post-conviction court’s refusal

to admit the additional affidavits into evidence, Wrinkles’s

reliance on the additional affidavits in his post-conviction

appeal to the Indiana Supreme Court seems analogous

to the petitioner’s reliance on similar affidavits in Patton v.

State, 537 N.E.2d 513 (Ind. Ct. App. 1989). In Patton, the

petitioner felt that because his attorney had failed to

present the evidence to the trial court, “he should be

allowed to present it by affidavits with his Motion to

Correct Errors.” Id. at 516. The Indiana Court of Appeals

explained that Indiana Trial Rule 59(H)(1), dealing with

motions to correct error, “was not designed for this

purpose.” Id. The Patton court went on to conclude that the

affidavits “were not properly before the trial court as

evidence outside the record”—they did not qualify as

newly discovered evidence and Patton had neglected to

submit them at trial. Id. Because the affidavits were not

properly before the Indiana Court of Appeals, the Patton

court declared: “we cannot consider them in reviewing

the trial court’s action.” Id. (emphasis added).

If under state law the Indiana Supreme Court would not

have looked at the additional affidavits in its direct

review of the post-conviction court’s findings, see Roach,

695 N.E.2d at 940 n.1; Walker, 587 N.E.2d at 677; Preuss,

230 N.E.2d at 792, certainly we are not at liberty to

weigh them on collateral review under § 2254, where our

review is limited to arguments that were adjudicated on

the merits in state court proceedings, 28 U.S.C. § 2254(d),

and arguments that were not procedurally defaulted, id.

§ 2254(b). Here, Wrinkles did not appeal the post-conviction

court’s refusal to admit the additional affidavits into

evidence. Absent a reversal of the post-conviction court’s

rulings on these affidavits by the Indiana Supreme Court,

No. 05-2747 25

and absent any indication by the Wrinkles II court that it

nonetheless decided to consider the additional affidavits,

we are not free to engage in an independent assessment of

the affidavits’ weight and the affiants’ credibility.

The Wrinkles II opinion itself suggests that the Indiana

Supreme Court adopted the post-conviction court’s

findings of fact in toto. The supreme court acknowl-

edged the post-conviction court’s factual findings and

identified the standard of review called for under Indi-

ana law:

In the present case, the post-conviction court

entered findings of fact and conclusions of law in

accordance with Indiana Post-Conviction Rule 1(6).

A post-conviction court’s findings and judgment

will be reversed only upon a showing of clear

error—that which leaves us with a definite and

firm conviction that a mistake has been made.

Wrinkles II, 749 N.E.2d at 1188. After reviewing the post-

conviction court’s findings and conclusions of law with

respect to each of Wrinkles’s arguments on appeal, the

Wrinkles II court ultimately declared that Wrinkles “failed

to prove that the evidence as a whole leads unerringly and

unmistakably to a decision opposite that reached by the

post-conviction court.” Id. at 1203. It then affirmed the post-

conviction court’s denial of Wrinkles’s petition for relief. Id.

The Wrinkles II court did not reverse the findings of the

post-conviction court, either explicitly or implicitly. The

Indiana Supreme Court has repeatedly noted that a post-

conviction court’s findings of fact are accepted unless

“clearly erroneous,” and that the “postconviction court is

the sole judge of the weight of the evidence and the credibility

of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind.

26 No. 05-2747

2004); Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002);

Woods v. State, 701 N.E.2d 1208, 1210 (Ind. 1998) (emphasis

added); see also Stewart v. State, 517 N.E.2d 1230, 1231 (Ind.

1988) (“The judge who presides over the post-conviction

hearing possesses exclusive authority to weigh the evidence

and determine the credibility of the witnesses. The review-

ing court will therefore not set aside the trial court’s

ruling on a post-conviction petition unless the evidence

is without conflict and leads solely to a result different

from that reached by the trial court.”) (emphasis added).

The Indiana Supreme Court in Wrinkles II did not sug-

gest in any way that it considered the additional affidavits

that had never been admitted into the evidentiary record.

Nor did the court say it was engaging in a de novo re-

weighing of the evidence in Wrinkles II—indeed it appears

it would not have done so as a matter of Indiana law. See

Fisher, 810 N.E.2d at 679; Davidson, 763 N.E.2d at 444;

Woods, 701 N.E.2d at 1210. Finally, nothing in the Wrinkles

II opinion indicates that the Indiana Supreme Court was

overturning the post-conviction court’s factual findings,

or that those findings were clearly erroneous.

b. Our reading of “Obviously, they were later proven wrong.”

Despite a degree of ambiguity surrounding the “Obvi-

ously, they were later proven wrong” sentence in Wrinkles

II, we conclude that the Indiana Supreme Court was

commenting on the process by which Wrinkles’s attor-

neys decided not to object to the stun-belt restraint—as

opposed to commenting on the belt’s visibility. In the

disputed passage, the court first explained that it had just

invalidated the use of stun belts based on a type of preju-

dice unavailable to Wrinkles’s counsel at the time of

No. 05-2747 27

trial—the “potential effect . . . upon the person wearing

the device.” The court then set out the choice of restraint

facing Wrinkles’s attorneys at trial in light of the only

theory of prejudice then available—the “effect on the

jurors.” Lastly, the court explained why, based on this

latter theory of prejudice, counsel’s decision to choose

the stun belt was a “prudent one” even though the attor-

neys were “later proven wrong” to examine their

choice solely based on “the effect on the jurors.”

In rejecting Wrinkles’s claim that he had received

ineffective assistance of counsel, the court stated, in

relevant part:

Before trial began, the trial court informed counsel

that Wrinkles would have to wear either shackles

or a stun belt during trial. Without objection coun-

sel chose a stun belt, and Wrinkles claims they

rendered ineffective assistance as a result. We

disagree. Although with this opinion we declare

that stun belts no longer have a place in Indiana

courtrooms, that was not the case at the time of

Wrinkles’ trial. Our prohibition is motivated

primarily by the potential effect a stun belt may

have upon the person wearing the device. How-

ever, without the benefit of this declaration, coun-

sel were concerned about the effect on the jurors if

they were to observe their client wearing a particu-

lar device. Counsel believed that the chance of the

jury seeing the shackles was fairly high. On the

other hand, counsel opted for the stun belt because

they thought the jurors would not be able to see it.

Obviously, they were later proven wrong. How-

ever, at the time the decision was made, it was a

prudent one.

Wrinkles II, 749 N.E.2d at 1195 (citations omitted).

28 No. 05-2747

The last few sentences of this quoted section—particu-

larly the sentence “[o]bviously, they were later proven

wrong”—are not entirely unproblematic. One could read

this second-to-last sentence as referring back to the

court’s statement that “the jurors would not be able to see

it,” with the “it” referring to the stun belt. So read, this

could be seen as an implicit finding that the jurors had in

fact seen the stun belt and that Wrinkles’s attorneys “were

later proven wrong” about their contrary assumption. In

turn, this would suggest that the stun belt may have

prejudiced the defendant.

We cannot conclude that this is the appropriate reading

for two reasons: (1) the quoted section is more consistent

with a discussion of the choice facing Wrinkles’s attorneys

in light of the then-established prejudice associated with

restraints; and (2) Indiana law as well as subsequent

guidance by the Indiana Supreme Court sheds light on the

more plausible reading. Parsing the above-quoted section,

the paragraph begins:

Before trial began, the trial court informed counsel

that Wrinkles would have to wear either shackles

or a stun belt during trial. Without objection coun-

sel chose a stun belt, and Wrinkles claims they

rendered ineffective assistance as a result. We

disagree. Although with this opinion we declare

that stun belts no longer have a place in Indiana

courtrooms, that was not the case at the time of

Wrinkles’ trial.

749 N.E.2d at 1195. The issue before the court was whether

Wrinkles’s counsel “rendered ineffective assistance” when

“[w]ithout objection counsel chose a stun belt” after “the

trial court informed counsel that Wrinkles would have

to wear either shackles or a stun belt during trial.” In the

immediately preceding paragraphs of the opinion, the

No. 05-2747 29

supreme court had just held that “stun belts no longer

ha[d] a place in Indiana courtrooms.” But this did not end

the inquiry because “that was not the case at the time of

Wrinkles’ trial,” when the counsel rendered their assis-

tance. In prospectively banning stun belts, the court had

relied on a form of prejudice that was unproven at the

time of Wrinkles’s trial. The supreme court continued:

Our prohibition is motivated primarily by the

potential effect a stun belt may have upon the

person wearing the device. However, without the

benefit of this declaration, counsel were concerned

about the effect on the jurors if they were to ob-

serve their client wearing a particular device.

Id. In Wrinkles II, the court reasoned that the prejudice

from a stun belt resulted not from the jury being able to

see the defendant in restraints, but from “the potential

effect a stun belt may have upon the person wearing the

device.” This form of prejudice marked a departure from

preexisting case law, which had only discussed prejudice

in terms of the defendant’s visibility before the jury in

restraints. Id. at 1193-95; see also Stephenson v. Indiana, 864

N.E.2d 1022, 1029, 1032 (Ind. 2007) (discussing reasonable-

ness of counsel’s choice “given that the case law addressing

the issue had largely focused on the visibility of the

restraint, and not, as Wrinkles later pointed out, on the

belt’s potential effect on the defendant’s demeanor and

ability to participate in the defense”). Understandably then,

“without the benefit of this declaration, [Wrinkles’s]

counsel were concerned” instead with the more established

form of prejudice associated with restraints: “the effect on

the jurors if they were to observe their client wearing a

particular device.”

The question then became whether effective counsel

would have accounted for the new form of prejudice just

30 No. 05-2747

identified in banning stun belts. But the supreme court said

no; the failure to object was not ineffective assistance. In

reaching this conclusion, the court first recreated the

decision facing Wrinkles’s counsel in choosing the restraint

to be used:

Counsel believed that the chance of the jury seeing

the shackles was fairly high. On the other hand,

counsel opted for the stun belt because they

thought the jurors would not be able to see it.

Wrinkles II, 749 N.E.2d at 1195. In other words, after

assuming that they need only consider the effect on the

jurors, the attorneys chose the stun belt because it posed

the least risk of being seen by the jurors when compared to

the shackles.

Immediately following the court’s articulation of these

two options and the rationale behind the attorneys’ choice,

the court continued,

Obviously they were later proven wrong. How-

ever, at the time the decision was made, it was a

prudent one.

Id. This first sentence refers back to the court’s statement

that “counsel opted for the stun belt because they thought

the jurors would not be able to see it.” Wrinkles’s attorneys

opted for the form of restraint that they thought would

minimize prejudice—the “effect on the jurors.” But the

court had just held that its decision was instead “motivated

primarily by the potential effect a stun belt may have upon

the person wearing the device,” not the “effect on the

jurors.” Thus, “[o]bviously, they were later proven wrong”

to have evaluated the choice of restraint through the lens of

juror-prejudice alone. Nonetheless, because the attorneys

could not be faulted for failing to predict the form of

No. 05-2747 31

prejudice announced in Wrinkles II, “at the time the deci-

sion was made, it was a prudent one.”

Placing Wrinkles II within the larger context of Indiana

law—both procedural law and a subsequent interpretation

laid out by the Indiana Supreme Court—reinforces this

reading. When reviewing a state-court decision in federal

courts, the resolution of potentially dispositive ambiguities

occasioned by a state-court finding should be resolved,

where possible, by reference to that state’s law. See Tibbs v.

Florida, 457 U.S. 31 (1982) (direct review); Greene v. Massey,

437 U.S. 19 (1978) (collateral review); Rivera v. Sheriff of Cook

County, 162 F.3d 486, 489 (7th Cir. 1998) (collateral review

post-AEDPA). Thus, in an analogous situation, the Su-

preme Court has instructed lower courts to examine the

state’s procedural law closely, or to certify questions to the

state’s highest court when necessary, Greene, 437 U.S. at 26

n.8, 27, or to examine subsequent decisions that may shed

some light on the issue at hand, Tibbs, 457 U.S. at 46-47.

Here, Indiana procedural law and a subsequent su-

preme court decision support the conclusion that the

above reading of Wrinkles II is the proper one. First, as

discussed above, it is implausible to view the “Obviously”

statement as an implicit factual finding by the the su-

preme court. Under Indiana law, the supreme court would

not have examined additional affidavits contained in a

motion to correct error. And the rest of Wrinkles II is

more consistent with a blanket affirmance than with an

affirmance despite a factual finding contrary to the post-

conviction court’s. This latter scenario is especially

unlikely given that the supreme court was reviewing only

for clear error.

But more importantly, this court must credit the Indiana

Supreme Court’s later interpretation of Wrinkles II in

resolving the ambiguity contained in the disputed passage.

32 No. 05-2747

Tibbs, 457 U.S. at 46-47 (“Any ambiguity in Tibbs I . . . was

resolved by the Florida Supreme Court in Tibbs II,” which

“binds this Court.”). Although it is not often that an

ensuing state supreme court decision affects a disputed

finding in a previous decision, it is not unprecedented. This

scenario arises with some regularity when reviewing

whether a defendant’s retrial following a state appellate

court’s reversal of a conviction raises double jeopardy

concerns. And defendants frequently raise these claims

before federal courts on collateral review. See, e.g., Rivera,

162 F.3d at 489. If the state appellate court reversed because

the evidence in the first trial was insufficient, double

jeopardy attached and retrial is improper. But if the

appellate court reversed simply because the defendant’s

first conviction was against the “weight of the evidence,”

the defendant’s retrial is constitutional. In deciding

which basis the state appellate court relied on in re-

versing, federal courts must often parse the appellate

court’s decision against the backdrop of the state’s proce-

dural law and ensuing case law. Id. (“[S]tate courts

should themselves determine the right way to understand

their pronouncements.”).

A scenario comparable to the case at hand presented

itself to the Supreme Court in Tibbs v. Florida, 457 U.S. at 31.

There, the Florida Supreme Court’s first decision reversing

Tibbs’s conviction did not obviously rest on either the

“insufficiency” or the “weight of the evidence.” But a

second Florida Supreme Court opinion following Tibbs’s

retrial clarified matters; the earlier reversal had been

based on the “weight of the evidence.” One issue before

the Supreme Court on appeal from this latter decision

was whether the initial reversal had been based instead

on the “weight of the evidence.” The Supreme Court

No. 05-2747 33

affirmed the defendant’s conviction following retrial,

noting that the Florida Supreme Court’s “construction of

its prior opinion binds this Court.” Id. at 46-47. Because

“[a]ny ambiguity in Tibbs I . . . was resolved by the Florida

Supreme Court in Tibbs II,” id., the Court had to give effect

to the decision—meaning that the defendant’s retrial had

been proper.

In Stephenson v. Indiana, 864 N.E.2d 1022 (Ind. 2007), the

Indiana Supreme Court provided similar guidance. In

Stephenson, the court compared the decision made by

Wrinkles’s counsel in choosing the stun belt with the

same decision made by Stephenson’s during his trial. In

so doing, the court explained its rationale in Wrinkles II:

At the time of Stephenson’s trial in 1996 and 1997,

no Indiana ruling had addressed the use of stun

belts. As in Wrinkles, counsel cannot be faulted for

selecting the belt over more visible shackles, given

that the case law addressing the issue had largely

focused on the visibility of the restraint, and not, as

Wrinkles later pointed out, on the belt’s potential

effect on the defendant’s demeanor and ability to

participate in the defense.

Id. at 1032. The court went on to characterize the decision

made by Wrinkles’s attorneys as a “tactical decision.” The

“only real issue” in Wrinkles’s trial was sentencing, so

“[t]he decision to challenge the belt [there] arguably fell

into the tactical range, balancing the likelihood of suc-

cess against the risk of alienating the judge by challenging

an announced ‘policy.’ ” Id. Because in Stephenson’s case,

guilt was “vigorously disputed,” a “tactical” classification

could not apply. The court went on to hold that the “use of

a stun belt, if perceived by the jury, produces all the results

that shackling does.” After a careful examination of the

post-conviction record, the Stephenson court concluded

34 No. 05-2747

that the jurors had been aware of the stun belt. Nonethe-

less, the court upheld Stephenson’s convictions and death

sentence because he had not demonstrated the requisite

amount of “prejudice” to establish his ineffective-assistance

claim.

This discussion of Wrinkles II in Stephenson indicates that

the above reading is the appropriate one. The section

discussing the Wrinkles II decision tracks the Indiana

Supreme Court’s reasoning in the exact manner dis-

cussed above. The court recreated the decision facing

Wrinkles’s attorneys in light of the established form of

prejudice at the time. The court again recognized that

Wrinkles’s attorneys viewed their decision at trial in

light of the “visibility of the restraint,” and not the “belt’s

potential effect on the defendant’s demeanor and ability

to participate in the defense.” And just as it had in

Wrinkles II, the court concluded that Wrinkles’s counsel

could not be faulted for failing to predict the prejudice

the court would credit in banning the stun belt.

Even with the benefit of this reading, the Indiana Su-

preme Court unreasonably applied Strickland in evalu-

ating Wrinkles’s attorneys’ performance in Wrinkles II. The

failure to object itself fell below what is expected under

professional norms, regardless of the theory of prejudice.

A blanket policy of restraint cannot be squared with the

case law at the time of trial. But notwithstanding the

propriety of the court’s conclusion, it is evident that the

court did not make a finding that the jurors had seen

the stun belt. Instead, the court in Wrinkles II was recon-

structing the decision made by Wrinkles’s counsel based

on the then-established form of prejudice associated

with the stun belt.

In light of the nature of the court’s reasoning in Wrinkles

II, the discussion in Stephenson, and the implausibility

No. 05-2747 35

under Indiana law of the Indiana Supreme Court making

implicit factual findings, we conclude that the Indiana

Supreme Court did not make a finding of fact that the

jurors had seen the stun belt. The controlling findings of

facts are those set forth by the state post-conviction court

and adopted by the Wrinkles II court. These findings of

fact determined that the jury did not see the stun belt.

Additionally, Wrinkles has not presented us with any

evidence to demonstrate that the stun belt affected his

abilities to properly participate in his own defense. Without

evidence that the jurors saw the stun belt, or that he was

otherwise affected by the stun belt throughout trial,

Wrinkles cannot demonstrate prejudice. See Strickland,

466 U.S. at 694. He therefore cannot show that he re-

ceived ineffective assistance of counsel, so he cannot

demonstrate the requisite cause and prejudice necessary to

overcome his procedural default. Guest, 474 F.3d at 930.

Thus, this Court is procedurally barred from examining

his freestanding stun-belt claim and must deny the writ.

III. CONCLUSION

The decision of the district court is AFFIRMED.

ROVNER, Circuit Judge, dissenting. I agree with my

colleagues that Matthew Wrinkles’s trial attorneys

were deficient in failing to object to the trial court’s in-

sistence on the use of restraints absent judicial findings

36 No. 05-2747

that Wrinkles presented a security threat or otherwise

required physical restraints. I cannot agree, however,

that Wrinkles was not prejudiced by counsels’ error.

The natural reading of the opinion of the Indiana Su-

preme Court in Wrinkles II is that several jurors were

aware of the stun belt during the trial. In light of that

finding, Wrinkles has shown both the inherent prejudice

that accompanies visible restraints and other detriments

specific to his case. Only through a tortured interpretation

of the Indiana Supreme Court’s opinion, with which not

even the respondent agrees, does the majority conclude

that Wrinkles was not prejudiced by his attorneys’ error.

I would not wager a man’s life on the correctness of the

majority’s grammatical parsing, and therefore I respect-

fully dissent.

During the state postconviction proceedings, Wrinkles

submitted affidavits from two jurors who attested that,

during the trial, they were “aware” that Wrinkles was

wearing a shock belt. One juror “believe[d]” that a bailiff

told the jurors of the belt and the other was unsure how

he became aware but “believe[d]” the judge told the

jurors. A third juror (juror Kraft) attested that she was

aware of the belt and even saw it on Wrinkles during

the trial; she described the belt as looking like a cum-

merbund. Kraft also stated that she may have become

aware of the belt after the trial from a newspaper article.

Despite ample time to investigate and prepare counter-

affidavits, the state submitted only one, from one of the

three bailiffs who worked at Wrinkles’s trial. The bailiff

attested that he never communicated to the jurors that

Wrinkles was wearing a stun belt. Nothing, however,

contradicted the three jurors’ testimony that they knew

about the belt; only how each learned of it remained open

No. 05-2747 37

to question. Despite the testimony by all three jurors that

they knew about the stun belt, and with nothing in the

record to the contrary, the postconviction court found

that the jurors were not aware of the stun belt. The court

reasoned that the affidavits were not credible because

of inconsistencies and because the jurors were not sub-

ject to cross-examination.1

Wrinkles vigorously contested the court’s finding. He

moved the postconviction court to reopen the evidence

and to correct error, and supplemented the record with

four additional juror affidavits. Kraft, one of the three

original affiants, clarified that she had “no doubt” that

during the trial she knew the belt she saw on Wrinkles

was a stun belt, although she was still unsure as to how

she came by that knowledge. Three additional jurors

attested that they were aware of the belt during the trial,

although none could recall the source of that information.

Two of them supplied the additional detail that they

understood that the belt could be activated remotely by

a deputy. Finally, in a supplemental filing, one additional

juror attested that she saw the stun belt during the trial.

The postconviction court declined to revisit the issue and

denied Wrinkles’s motions.

Wrinkles argued on appeal to the Indiana Supreme

Court that the finding that the jurors were unaware of the

stun belt was erroneous. In its opinion, the Indiana Su-

preme Court implicitly accepted that argument by making

statements inconsistent with the postconviction court’s

1

The court also did not explain why it credited the bailiff’s

affidavit, which was also not subject to cross-examination. The

affidavits are duly sworn under the penalty of perjury. They

were prepared four years after the trial.

38 No. 05-2747

finding. If the jurors knew about the stun belt, we must

presume that Wrinkles was prejudiced, and so the inter-

pretation of the supreme court’s statements on this sub-

ject is the linchpin of this case.

In its first reference to the issue, the Indiana Supreme

Court stated: “Wrinkles asserts that utilization of the

stun belt, which was conspicuous to at least seven jurors,

undermined his presumption of innocence and made

him appear dangerous and uncontrollable in front of the

jurors who would help decide whether he would live or

die.” Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001)

(Wrinkles II). The statement is ambiguous at best, and it

could be interpreted as the court’s recapitulation of one of

Wrinkles’s arguments. However, Wrinkles’s proffered

interpretation, that the supreme court itself believed that

the stun belt was conspicuous, is also plausible because

the court did not specifically ascribe that assertion to

Wrinkles.2 The sentence reads more naturally as an ac-

knowledgment by the court that seven jurors were

aware of the belt.

The court’s second mention of the critical factual issue

is not ambiguous. It first states that Wrinkles’s counsel,

lacking the guidance of the later decision to ban stun belts

outright, reasonably chose between shackles and stun

belt based on the effect each might have on the jurors. Id. at

1195. The court continues: “Counsel believed that the

chance of the jury seeing the shackles was fairly high. On

the other hand, counsel opted for the stun belt because

2

As the majority points out, ante at 20 n.3, the supreme

court otherwise consistently used such language as “Wrinkles

contends” or “He claims” immediately preceding his arguments.

No. 05-2747 39

they thought that jurors would not be able to see it. Obvi-

ously, they were later proven wrong. However, at the time

the decision was made, it was a prudent one.” Id. (empha-

sis added). Given the preceding sentence, the italicized

sentence must be read as an acknowledgment by the

supreme court that, despite counsels’ pretrial predictions

that the stun belt would go undetected, some jurors

indeed were aware of it.

The majority, however, concludes that the attorneys

were “later proven wrong” in their decision to evaluate

“the choice of restraint through the lens of juror-prej-

udice alone.” Ante at 30. In order to arrive at this tortured

result, my colleagues devote no less than ten pages to

what they describe, fittingly, as “Our Reading of ‘Obvi-

ously, they were later proven wrong.’ ” Ante at 26. The

subheading is particularly apt because it is the majority’s

interpretation and the majority alone. At oral argument,

even the State of Indiana did not deny that the state-

ment means that the supreme court believed that jurors

were aware of the belt. Cf. McCaskill v. SCI Mgmt. Corp., 298

F.3d 677, 680 (7th Cir. 2002) (“The verbal admission by

SCI’s counsel at oral argument is a binding judicial ad-

mission, the same as any other formal concession made

during the course of proceedings.”). Instead, the State

characterized this finding as “an aside” the supreme

court inserted while making the point that “the fact that

later the jurors may have seen it . . . doesn’t matter for

counsel’s decision at the time he made it.” Indeed, no-

where in its brief does the State mention the passage of the

Indiana Supreme Court’s opinion that divides the panel, a

fact which makes the majority’s ten-page analysis of the

disputed passage all the more extraordinary. See, e.g.,

Kochert v. Adagen Med. Int’l., Inc., 491 F.3d 674, 679 (7th

40 No. 05-2747

Cir. 2007) (Plaintiff “did not raise, much less develop

this argument, and undeveloped arguments are waived.”).

Then my colleagues, who accuse Wrinkles of taking

the statement out of context, proceed to rearrange the

entire paragraph to reach the conclusion that the Indiana

Supreme Court was explaining why “counsel’s decision

to choose the stun belt was a ‘prudent one’ even though

the attorney’s were ‘later proven wrong’ to examine

their choice solely based on ‘the effect of the jurors.’ ”

Ante at 27. Not only does this interpretation strain com-

mon sense, it is inconsistent with the supreme court’s

analysis of counsels’ decision. As the majority concedes,

the Indiana Supreme Court erroneously concluded that

counsel were not deficient for failing to object to the

stun belt because in light of the trial court’s supposed

policy of requiring restraints, “an objection to wearing

restraints would not have been sustained by the trial

judge even if made.” Wrinkles II, 749 N.E.2d at 1195. Thus,

the Indiana Supreme Court excused counsels’ failure to

know the law with the illogical reasoning that the trial

judge’s illegal policy obviated the need for an objection.

Given this view, it would make no sense for the Indi-

ana Supreme Court to in the same breath conclude that

counsel were “later proven wrong” to have evaluated the

situation solely through the lens of Wrinkles’s appearance

before the jury. Quoting a piece of the disputed sen-

tence and then adding on its own “clarification” the

majority comes up with the following conclusion: “Thus,

‘[o]bviously, they were later proven wrong’ to have

evaluated the choice of restraint through the lens of

juror-prejudice alone. Nonetheless, because the attorneys

could not be faulted for failing to predict the form of

prejudice announced in Wrinkles II, ‘at the time the decision

No. 05-2747 41

was made, it was a prudent one.’ ” Ante at 30. But being

“proven wrong” about the possibility that the defendant

would be prejudiced by the jury seeing him restrained is

a nearly nonsensical concept. After all, the fact that the

Indiana Supreme Court emphasized the effect of the

restraint on the defendant (a form of prejudice long-

recognized, not, as both the Indiana Supreme Court and

my colleagues seem to believe, a novel proposition) as

opposed to the prejudice occasioned by the jury seeing

the belt does not mean that prejudice from a visible re-

straint is no longer a legitimate concern of counsel—i.e.,

that counsel would be “wrong,” as the majority sug-

gests, for considering that form of prejudice. That borders

on the absurd.

The majority claims its strained interpretation is the

more plausible one in light of first, Indiana procedural

law, and second, the Indiana Supreme Court’s subse-

quent decision in Stephenson. As for state procedural law,

it seems odd indeed to be assessing whether the Indiana

Supreme Court breached its own procedural rules in the

context of a federal habeas claim, see, e.g., McCloud v.

Deppisch, 409 F.3d 869, 875-76 (7th Cir. 2005) (construction

of state law irrelevant in habeas proceeding), where it

goes without saying that state law cannot be the basis for

relief. Conversely, if our decision turns on the answer to

a question of state law, something is amiss. On the issue

of the additional affidavits Wrinkles sought to have

admitted in the postconviction court, the state conceded

at oral argument that the Indiana Supreme Court re-

viewed those affidavits “in some fashion.” It seems both

unusual and unhelpful to analyze whether we believe

the Indiana Supreme Court is allowed under Indiana law

to do precisely what the state concedes that it did. More-

42 No. 05-2747

over, I do not think the additional affidavits are determi-

native—the Indiana Supreme Court could easily have

rejected the postconviction court’s conclusion based on the

three affidavits indisputably in the record, making the

majority’s preoccupation with whether the supreme

court had the authority under state law to review the

additional affidavits largely irrelevant.

The majority’s unlikely interpretation also ignores the

procedural context. First, the factual issue was squarely

presented to the Indiana Supreme Court. Second, the

Court suggests that it reviewed all seven juror affidavits

despite the postconviction court’s refusal to do so; it

referred to the belt being conspicuous to “at least seven”

jurors. See Wrinkles II, 749 N.E.2d at 1192. Third, because

no jurors testified at the postconviction hearing, the

supreme court was at no disadvantage compared to the

trial court in evaluating the credibility of the jurors’

statements, and so there is no reason to defer to the trial

court’s interpretation. Finally, the supreme court made

statements inconsistent with the factual finding of the

postconviction court. The only logical conclusion is that

the Indiana Supreme Court supplemented the record

with its own finding that a number of jurors were

aware that Wrinkles was restrained by a stun belt.

The majority protests that such a conclusion cannot be

drawn because, “[h]ere, Wrinkles did not appeal the post-

conviction court’s refusal to admit the additional

affidavits into evidence,” ante at 24 (emphasis in original).

Not only is this line of argument a red herring, it is

simply untrue. In fact, Wrinkles did appeal the post-

conviction court’s refusal to admit the additional affidavits.

Specifically, Wrinkles’s brief on appeal to the Indiana

Supreme Court states that “Wrinkles attempted to admit

No. 05-2747 43

affidavits from four additional jurors who knew

Wrinkles was restrained. The post-conviction court er-

roneously denied Wrinkles’ motion to supplement the

record with these affidavits.” (Brief for Petitioner-Appel-

lant at 19 n.6, Wrinkles v. Indiana, No. 82C01-9407-CF-447.)

The fact that, contrary to the majority’s repeated insistence

otherwise, see ante at 24, Wrinkles placed the issue before

the Indiana Supreme Court makes the court’s reference

to the jurors’ awareness of the belt all the more straight-

forward.

Moreover, whether the Indiana Supreme Court did or

did not formally admit the additional affidavits is in no

way as determinative as my colleagues suggest. The

three affidavits that were originally admitted all estab-

lish the jurors’ knowledge of the stun belt; and Wrinkles

vigorously argued to the supreme court in a properly

preserved appeal that the postconviction court’s con-

trary finding was clearly erroneous. Those three affidavits

alone established the jurors’ knowledge; it is only the

source of that knowledge that was unclear. Neither the

testimony of Wrinkles’s attorneys (regarding the belt’s

visibility) nor the affidavit from one of the bailiffs3 (regarding

3

Notably, although the majority emphasizes the bailiff’s

affidavit, his sworn testimony that he was “sequestered with

the jury for the entire duration of the trial” was later shown to

be inaccurate. That bailiff eventually submitted a supple-

mental affidavit clarifying that he was temporarily absent from

the trial and another bailiff took over his duties during that

time. Nor was this bailiff the only one assigned to the trial; thus

there is little to the postconviction court’s suggestion that

the bailiff’s affidavit contradicted Kenneth Ranes’s affidavit

that he believed “the bailiff” told jurors about the stun belt.

44 No. 05-2747

his own communication with jurors and not ad-

dressing any other possible source) contradicts the

jurors’ testimony that they knew about the belt. And the

state did not produce a single counteraffidavit from a

juror who was not aware of the belt. As I have stated, to

the extent there was no oral testimony by the jurors, and

the issue was decided on the basis of the affidavits alone,

there is no reason to defer to the postconviction court’s

interpretation of the written testimony over the Indiana

Supreme Court’s.

The Indiana Supreme Court’s discussion of Wrinkles II

in Stephenson likewise does nothing to undercut the

plain language of the disputed passage. In a confusing

passage devoted to “explaining” why “obviously, they

were later proven wrong” means wrong about some

other issue than the one identified in the preceding sen-

tence, the majority resorts to yet another Indiana Su-

preme Court case on stun belts. But it is unclear how

Stephenson, which does indeed discuss Wrinkles II, sheds

any light on whether the court believed the jurors knew

about the stun belt in Wrinkles’s case. The majority first

explains its reliance on Stephenson by analogizing it to a

situation where “an ensuing state supreme court decision

affects a disputed finding in a previous decision.” Ante at

32. But the examples cited provide no precedent for

resorting to a later opinion to clarify a state court’s find-

ing of fact in an earlier, unrelated proceeding. The sup-

posedly “comparable” case relied on by the majority—

Tibbs—demonstrates the point. There the United States

Supreme Court referred to a later pronouncement by

the Florida Supreme Court to resolve ambiguity in the

earlier opinion in the same case; to be sure, subsequent

pronouncements in the same case may illuminate the

No. 05-2747 45

basis of a state court decision—as in Tibbs when a case is

reversed and then retried and the court in the second

appeal comments on its rationale in the first appeal. But

using an unrelated subsequent state court opinion to

interpret the meaning of case-specific language in a

previous case strikes me as, if not unprecedented (cer-

tainly the majority points to no truly analogous scenario),

highly unusual.

At all events, Stephenson is hardly so illuminating as the

majority suggests. My colleagues point out that Stephenson

“tracks” the reasoning from Wrinkles II by recreating the

decision facing Wrinkles’s counsel at the time and their

concern with whether the jury would see the belt as

opposed to what effect the device would have on Wrinkles.

But the fact that the Indiana Supreme Court repeated in

Stephenson its mistake in Wrinkles—excusing counsels’

objectively deficient performance—sheds no light on the

meaning of “obviously, they were later proven wrong.”

Notably, the court in Stephenson concluded that the

jurors in that case did see the defendant’s stun belt.

But despite the discussion that “tracks” its reasoning in

Wrinkles II, the court nowhere distinguishes Wrinkles II

on the basis that the jurors in that case did not know

about the stun belt. Stephenson’s explicit finding that the

jurors in that case were aware of the stun belt still did not

lead the court to conclude that counsel were deficient. See

Stephenson, 864 N.E.2d at 1034-40. If anything, the supreme

court’s repetition in Stephenson of its mistake regarding

counsels’ effectiveness confirms that the court failed, in

both Wrinkles II and Stephenson, to see that failure to

object to restraints imposed without particularized justifi-

cation amounts to objectively deficient representation. The

court’s inability to appreciate this in Stephenson makes it

46 No. 05-2747

all the more obvious that it recognized in Wrinkles II that

the jurors were aware of the belt, but erroneously

deemed that fact irrelevant in light of its misplaced focus

on the fact that the trial court would have (incorrectly)

overruled an objection to the stun belt. Compare Wrinkles II,

749 N.E.2d at 1195 and Stephenson, 864 N.E.2d at 1040-41.

Finally, the majority places great weight on the fact that

the Indiana Supreme Court was considering the “choice of

restraint facing Wrinkles’s attorneys at trial in light of the

only theory of prejudice then available—the ‘effect on the

jurors.’ ” Ante at 27. But neither the majority nor the Indi-

ana Supreme Court is correct that the jury’s diminished

impartiality was the only legally recognized form of

prejudice at the time of Wrinkles’s trial. Both the United

States Supreme Court and lower courts have long recog-

nized that the harm flowing from visible restraints is

threefold. In addition to the potential effect on the jury’s

impartiality, the Supreme Court in 1970 recognized that

restraints may interfere with the accused’s right to assist

in his defense. See Illinois v. Allen, 397 U.S. 337, 344 (1970)

(“[O]ne of the defendant’s primary advantages of being

present at the trial, his ability to communicate with his

counsel, is greatly reduced when the defendant is in a

condition of total physical restraint.”). In Deck v. Mo., 544

U.S. 622, 631 (2005), the Supreme Court refers to the

“ ‘ancient’ English rule” forbidding shackles and bonds

absent a compelling justification—a rule formed in part out

of concern that the restraints not interfere with a defen-

dant’s presentation of his defense: “ ‘If felons come in

judgment to answer, . . . they shall be out of irons, and all

manner of bonds, so that their pain shall not take away

any manner of reason, nor them constrain to answer, but

at their free will.’ ” See Deck, 544 U.S. at 626 (quoting 3

No. 05-2747 47

E. Coke, Institutes of the Law of England). Lastly, Allen points

out that the use of visible restraints is an affront to the

dignity of judicial proceedings. Allen, 397 U.S. at 344. Thus,

at least from Allen onward, courts have recognized

three distinct harms flowing from the use of visible re-

straints: (1) prejudice to the jury’s impartiality, (2) preju-

dice to the defendant’s ability to participate in his de-

fense, and (3) damage to the dignity of the proceedings. See,

e.g., Deck, 544 U.S. at 630-32 (recognizing “three fundamental

legal principles” animating the “judicial hostility” towards

visible restraints) (emphasis added); Harrell v. Israel, 672

F.2d 632, 635 & n.3 (7th Cir. 1982) (citing Allen to support

three reasons given for the rule against physical restraints);

Coates v. State, 487 N.E.2d 167, 169 (Ind. App. 1985) (recog-

nizing that restraints distract defendant’s “thought pro-

cess”); People v. Brown, 358 N.E.2d 1362, 1363 (Ill. App.

1977) (recognizing the prejudicial effect of restraints on

jury’s feelings about defendant, the possibility that shackles

would impair defendant’s ability to communicate with

counsel, and the fact that shackles detract from “dignity

and decorum of judicial process”).

Thus, there is no basis for the majority’s attempt to

explain away the clear import of the phrase “[o]bviously,

they were later proven wrong” by reasoning that the

Indiana Supreme Court must have been excusing coun-

sels’ failure to predict that the effect on a defendant would

one day become a legal rationale forbidding the use of

restraints at trial. That rationale was available to counsel

at the time of Wrinkles’s trial. And the fact that counsel

failed to “predict” what was in fact a long-settled rule

of law is not remotely surprising: lead trial counsel testi-

fied at the postconviction hearing that, “I did not know

that there was a law about shackling.” If anything, the

48 No. 05-2747

Indiana Supreme Court’s failure to acknowledge the

longstanding recognition that restraints also prejudice the

accused’s ability to participate in his defense simply

reaffirms that the Indiana Supreme Court unreasonably

applied clearly established law. Cf. Williams v. Taylor, 529

U.S. 362, 407 (2000) (state court unreasonably applies

Supreme Court precedent when it “unreasonably refuses to

extend” a legal principle “to a new context where it should

apply”). As this court recently recognized, “law” refers not

just to Supreme Court holdings, but “legal principles

derived from the holdings in Supreme Court opinions.”

Samuel v. Frank, 525 F.3d 566, 569 (7th Cir. 2008). Thus, the

fact that earlier law may not have addressed stun belts in

particular as opposed to restraints generally is of no

consequence.

It is well established that our obligation to defer to the

factual findings of state courts extends to appellate courts.

See Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Miranda v.

Leibach, 344 F.3d 984, 999 (7th Cir. 2005); Mendiola v.

Schomig, 224 F.3d 589, 592-93 (7th Cir. 2000); Sprosty v.

Buchler, 79 F.3d 635, 643 (7th Cir. 1996); Holland v.

McGinnis, 963 F.2d 1044, 1048 (7th Cir. 1992). The finding

that some jurors knew about the stun belt is amply sup-

ported by the record, and we must defer to it. See Sprosty,

79 F.3d at 643 (presumption of correctness applies to

“implicit resolution of a factual dispute that can be fairly

inferred from the state court record”). In contrast, the

majority, like the state postconviction court, can point to

no record evidence supporting the conclusion that the

jurors were not aware of the belt. Instead, it shores up its

unlikely interpretation with a foray into state law positing

that under Indiana law, the Indiana Supreme Court

probably would not do what common sense suggests

No. 05-2747 49

that it did when it commented that Wrinkles’s attorneys

did not think jurors would see the stun belt but “they

were later proven wrong.”

Of course, even finding that some jurors were aware of

the stun belt did not lead the Indiana Supreme Court to

conclude that Wrinkles’s attorneys were deficient for

failing to object. That conclusion, rightly rejected by my

colleagues, is largely based on the Court’s determination

that any objection would have been futile due to the trial

court’s practice of routinely requiring restraints, as well

as the fact that Wrinkles’s guilt was not in question. I will

not dwell on the erroneousness of that analysis, but it is

worth emphasizing that counsel’s obligation to object

for the record was more, not less, urgent where the judge

imposed an extralegal burden on Wrinkles without even

attempting to justify it. Moreover, counsels’ failure to

object—whatever the probable ruling—contributed in

large part to the procedural hurdles Wrinkles now must

clear in order to get relief, compounding their error. The

majority appropriately concludes, therefore, that Wrin-

kles’s counsel were deficient for failing to object to the

use of restraints without justification.

After parting ways with the Indiana Supreme Court on

the first prong of Strickland, however, the majority then

relies on its strange interpretation of that Court’s factual

finding to conclude that Wrinkles was not prejudiced by

his attorneys’ failure to object. “Without evidence that

the jurors saw the stun belt, or that he was otherwise

affected by the stun belt throughout trial, Wrinkles

50 No. 05-2747

cannot demonstrate prejudice.”4 Ante at 35. Constrained

by the Indiana Supreme Court’s finding that a number

of jurors knew about the stun belt as well as the record

evidence that the stun belt did indeed affect Wrinkles

throughout trial, I would reach a different result.

It has long been established that visible restraints are

so prejudicial that they are permissible only where a

“special need” is present. Deck, 544 U.S. at 626; see Hol-

brook v. Flynn, 475 U.S. 560, 568-69 (1986); Allen, 397 U.S. at

344. Routine use of restraints is prohibited; their employ-

ment must be preceded by a judicial finding that an

essential state interest such as physical security, escape

prevention, or courtroom decorum requires the use of

restraints on a particular defendant. See Deck, 544 U.S. at

628. So “inherently prejudicial” are visible restraints,

Holbrook, 475 U.S. at 568, that no “actual prejudice” need

be demonstrated by a defendant asserting a deprivation

of due process based on their unjustified use, Deck, 544

U.S. at 635.

Wrinkles’s situation cannot be distinguished from the

line of cases addressing visible restraints because the

stun belt was “visible” in the only meaningful sense to

any juror who was aware that he was restrained. See Roche

v. Davis, 291 F.3d 473, 483 (7th Cir. 2002). In this sense,

the majority has seized upon yet another red herring,

repeatedly referencing Wrinkles’s inability to establish

4

I have already commented that the majority’s interpretation

of the Indiana Supreme Court’s statements on this matter

strains credulity. But, in the face of the juror affidavits admitted

into the record, the majority’s statement that Wrinkles is

“without evidence” that jurors knew about (the more appro-

priate term than “saw”) the stun belt is wholly inaccurate.

No. 05-2747 51

that the belt was “visible” or “seen.” See, e.g., ante at 2, 9, 11,

13-14 n.3, 20-22, 28. But of course the prejudice caused by

restraints stems from the jurors’ knowledge of them, not

their “visibility,” and the false distinction the majority

weaves throughout its opinion is an unfortunate distrac-

tion.

Given the jurors’ awareness of the belt, every type of

prejudice that the Supreme Court has associated with the

use of restraints is implicated in this case. First, the mes-

sage sent by restraints—that the judicial system itself

already believes the defendant to be uncontrollably

dangerous—undermines the presumption of innocence.

Deck, 544 U.S. at 630. Although Wrinkles admitted to

killing the victims, the jury had to decide what level of

homicide he had committed, and the burden was on the

state to prove that he committed knowing murder. The

jury’s decision on the level of homicide, as much as any

other determination of guilt, could be tainted by their

knowledge of the stun belt.

Second, physical restraints can interfere with the defen-

dant’s ability to participate in his own defense. Id. at 631.

The most obvious example of that in this case is when

Wrinkles’s attorney warned him not to “make any

sudden moves” in response to Wrinkles asking where he

should put his hands while testifying. This exchange came

on the heels of an incident midway through trial when

the belt began “buzzing.” The trial had to be halted as a

result and the same belt was put back on Wrinkles after

investigation revealed that the buzzing was caused by

a low battery. No doubt this incident and the constant

fear of an unannounced, unstoppable 50,000-volt shock

impaired Wrinkles’s ability to participate in his defense.

Not surprisingly, Wrinkles’s attorney described his

52 No. 05-2747

client as “petrified” by the vibrations that accompanied

the “buzzing” belt. Third, the dignity of judicial proceed-

ings suffers when a participant is in restraints. Id. at 631-

32. That the trial had to be halted due to the belt’s “buzz-

ing” provides a stark example of this last concern.

The prejudice inflicted by restraints is particularly

dangerous in a case such as this, where any one factor

could have been decisive for the jury in both the guilt

and penalty phases given the nature and strength of

Wrinkles’s defense. As appellate counsel explained, the

use of the belt negated the entire theory of the defense:

that Wrinkles was not a dangerous or violent person by

nature but had “snapped” under extreme circumstances

such as the bitter separation from his family, a recent

involuntary commitment to a psychiatric facility, and a

severe drug addiction. Indeed, sufficient evidence was

adduced at trial to instruct the jury on voluntary man-

slaughter (which entails “sudden heat”) and reckless

homicide in addition to knowing murder. Surely a pre-

sumption that Wrinkles was so dangerous as to require

restraints would make a conviction for knowing

murder more likely than it might have been based on

the evidence alone. See Harrell, 672 F.2d at 637 (visible

restraints “could instill in the jury a belief that the defen-

dant is a dangerous individual who cannot be controlled,

an idea that could be devastating to his defense.”) The

prejudice was renewed during the sentencing phase,

when the jurors who were aware of the stun belt had to

decide whether to recommend death or imprisonment

while believing Wrinkles was still violent and dangerous.

Particularly where the mitigating factors far outnum-

bered the one aggravating factor allowing for the death

penalty, see Roche, 291 F.3d at 484, the potential influence

No. 05-2747 53

of the stun belt cannot be overstated. Accordingly,

I must conclude that Wrinkles was prejudiced by the

failure of his attorneys to object to the use of a stun belt.

Finally, even if I could accept my colleagues’ strained

characterization of the Indiana Supreme Court’s state-

ments on the visibility of the stun belt, I would find it

difficult to accept their reflexive conclusion that Wrinkles

was not prejudiced. The jurors’ awareness of the restraint

aside, Wrinkles also argues that he could not fully and

meaningfully participate in his trial while strapped to a

torture device. This argument was a logical application of

existing Supreme Court precedent on restraints, and

competent counsel would surely have raised it in response

to the trial court’s illegal “policy.” The majority dismiss-

ively concludes that Wrinkles did not present “evidence”

that the stun belt “affected his abilities to participate in

his own defense,” ante at 35. Not only did he present

such evidence (see discussion ante at 51-52), in my view a

court need not abandon its common sense when con-

sidering whether being forced to wear, with no justifica-

tion, a device that delivers an unstoppable, 8-second,

50,000-volt shock might affect a defendant’s participation

and demeanor, and, relatedly, the jury’s impressions of

him. For this reason, and more importantly because of the

prejudice stemming from the jurors’ awareness that

Wrinkles was restrained with a stun belt, I respectfully

dissent.

8-12-08