Marvin Walker v. Michael Martel

Filing

FILED OPINION (BARRY G. SILVERMAN, SUSAN P. GRABER and RONALD M. GOULD) REVERSED AND REMANDED. Judge: BGS Authoring, , Judge: RMG Concurring & dissenting. FILED AND ENTERED JUDGMENT. [8540694]

Case: 11-99006

03/07/2013

ID: 8540694

DktEntry: 17-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARVIN PETE WALKER,
Petitioner-Appellee,

No. 11-99006

v.

D.C. No.
4:94-cv-01997SBA

MICHAEL MARTEL, Warden,
Respondent-Appellant.

OPINION

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
December 4, 2012—San Francisco, California
Filed March 7, 2013
Before: Barry G. Silverman, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Silverman;
Partial Concurrence and Partial Dissent by Judge Gould

Page: 1 of 49

Case: 11-99006

03/07/2013

2

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL
SUMMARY*

Habeas Corpus/Death Penalty
The panel reversed the district court’s grant of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction and capital sentence for murder and related
crimes.
Petitioner Walker contended that trial counsel provided
ineffective assistance by failing to object to the use of a knee
restraint on one of Walker’s legs under his pants, which
jurors noticed because it made Walker limp. The panel held
that, under Strickland v. Washington, 466 U.S. 668 (1984),
and given the strength of the evidence, the nature of the
brace, the atrociousness of Walker’s crimes, and the quality
of the mitigation, the California Supreme Court could
conclude that it was not reasonably probable that either
Walker’s conviction or sentence would have been different
had counsel objected to the use of the leg restraint. The panel
remanded for the district court to consider other claims held
in abeyance pending this appeal.
Judge Gould concurred in the majority’s holding as to the
guilt phase. However, he would affirm the district court’s
grant of relief as to the sentence so that Walker could receive
another penalty-phase trial at which he is not improperly
shackled so that the jury can weigh the aggravating factors
relating to his crimes against the mitigating factors of his

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 3 of 49

3

youth and family relationships before deciding if he is
eligible for the death penalty.

COUNSEL
Bruce Ortega, Deputy Attorney General, San Francisco,
California, for Respondent-Appellant.
Thomas B. Mayhew (argued) and Douglas R. Young
(argued), Farella Braun + Martel, LLP, San Francisco,
California; Nanci L. Clarence, Clarence Dyer & Cohen, LLP,
San Francisco, California, for Petitioner-Appellee.

OPINION
SILVERMAN, Circuit Judge:
Warden Michael Martel appeals the district court’s grant
of habeas relief under 28 U.S.C. § 2254 to PetitionerAppellee Marvin Walker. During just one month in 1979,
Walker committed two armed robberies in San Jose,
California, in which he shot and attempted to kill four people.
He shot most of the victims in the head, killing a 15-year-old
boy and permanently injuring the three remaining individuals.
Three weeks after the second robbery, Walker sold the
murder weapon to a police officer who had been working
undercover purchasing stolen property. Walker told the
officer that the gun had been in his possession for months,
had made him a lot of money over the last six months, and
“had done a murder.”

Case: 11-99006

4

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

He was convicted of first-degree murder, three counts of
assault with intent to commit murder and other charges, and
sentenced to death in 1980. During his trial, the sheriff’s
office placed a knee restraint on one of Walker’s legs under
his pants. It is undisputed that several members of the jury
became aware of it. Jurors noticed the restraint during trial
because it made Walker limp to and from the witness stand
when he testified during both the guilt and penalty phase. No
record was made of the need for such a restraint, and
Walker’s lawyer made no objection to the knee brace. On
direct appeal, the California Supreme Court held that any
objection to the use of the brace had been waived by the
failure to object at the time. People v. Walker, 765 P.2d 70,
83 (Cal. 1988).
Claims of ineffective assistance of counsel raised in the
state habeas petitions were denied without explanation. In his
subsequent federal habeas petition, Walker claimed that
defense counsel was ineffective for failing to object to the
knee restraint. The district court agreed, holding that the state
court unreasonably applied Strickland v. Washington,
466 U.S. 668 (1984). See Walker v. Martel, 803 F. Supp. 2d
1032, 1044–53 (N.D. Cal. 2011). The district court ruled that
the only reasonable conclusion to draw from the record was
that counsel was constitutionally deficient in failing to object
to the restraint and that Walker was prejudiced thereby. The
warden now appeals, challenging only the district court’s
ruling on the prejudice prong of Strickland.
Because the California Supreme Court did not provide an
explanation for its denial of Walker’s ineffective assistance
of counsel claim, our obligation under the Antiterrorism and
Effective Death Penalty Act of 1996 is to determine whether
the state court decision, even sans explanation, was “contrary

Page: 4 of 49

Case: 11-99006

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Page: 5 of 49

5

to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1); Harrington v.
Richter, 131 S. Ct. 770, 785–86 (2011). The Supreme Court
has stated that:
Under § 2254(d), a habeas court must determine what
arguments or theories supported or, as here, could have
supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.
Id. at 786 (emphasis added). For the following reasons, we
hold that the state court reasonably could have applied
Strickland to decide that Walker was not prejudiced by the
knee restraint.
•

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

•

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

•

Third, the judge indicated to the jury that the
brace was a more-or-less routine measure taken

Case: 11-99006

03/07/2013

6

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL
by the sheriff for all persons in custody. The
judge’s comments went a long way toward
dispelling any impression that Walker posed a
unique danger in court.
•

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

•

Fifth, the jury acquitted Walker of assaulting with
intent to murder a customer who entered the store
while the robbery was in progress. This is
compelling proof that the jury could evaluate the
evidence fairly and was not blinded by the brace.

On this record, the state court reasonably could conclude
that it was not reasonably probable that the jury would have
acquitted Walker had Walker’s counsel objected to the
restraint.
This is true for the penalty phase as well. The magnitude
of Walker’s crimes was enormous. During the first armed
robbery, he shot three store employees, two of them
execution-style in the head, and killed a 15-year-old. During
the robbery, Walker said he wanted the victims killed to
eliminate any witnesses. In the second incident, Walker
sexually molested a 20-year-old woman at gunpoint by
ripping open her blouse and touching her breasts, then pistolwhipped her approximately 12 times, and shot her twice, once
in the eye and once through her left ear. She lost her eye and

Page: 6 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 7 of 49

7

the hearing in one ear, and suffered a fractured neck. In the
face of these horrendous crimes, Walker’s mitigation
evidence consisted of the fact that he was 19 years old at the
time of the offenses, had no prior criminal record, had done
yard work for a church secretary in the past, gave a friend
rides to work, provided financial and emotional support to his
mother and sister, and was loved by them and his girlfriend.
The California Supreme Court did not unreasonably apply
or act contrary to Supreme Court law in deciding, as it
necessarily did, that the restraint Walker was required to wear
under his pants during the penalty phase was trivial in
comparison to the magnitude of his crimes, taking into
account the nature of the mitigation evidence presented to the
jury. Put another way, we cannot say that the California
Supreme Court was unreasonable in deciding that it was not
reasonably probable that Walker would have been spared the
death penalty had his counsel objected to the knee restraint.
We reverse the district court’s granting of the writ, and
we remand for the district court’s consideration of the other
claims it held in abeyance.
I. Factual Background
A. The Crimes
1. August 6, 1979 Incident
We take the facts of Walker’s crimes and the ensuing
investigation mainly from the California Supreme Court’s
1989 opinion affirming Walker’s conviction on direct appeal.
Our “review is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v.

Case: 11-99006

8

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Pinholster, 131 S. Ct. 1388, 1398 (2011). The state court’s
factual findings are presumed to be correct unless the
petitioner rebuts this presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Frost v. Van Boening,
692 F.3d 924, 929 (9th Cir. 2012).
On August 6, 1979, Walker entered Dan’s Bottle Shop in
San Jose, California, accompanied by another individual. In
the store were co-owner Jerry Romero and two young
employees, Joe Vasquez and Andy Zamora. Walker drew his
gun, announced that he was holding up the store, and
marched Romero, Vasquez, and Zamora at gunpoint into the
back room. Walker ordered Romero to open the safe. When
Romero replied that he did not have the combination, Walker
grabbed a claw hammer and threatened to strike Romero with
it. Walker’s companion told him to “wait a minute,” searched
Romero’s wallet unsuccessfully for the combination, and then
told Walker, “He doesn’t know it, just forget it.” Walker’s
companion returned Romero’s wallet.
The front door bell then sounded, indicating that a
customer had entered the store, and Walker instructed
Vasquez to wait on the customer, threatening that if he made
any “funny moves,” he would be shot. Walker observed from
the top of some storage shelves. After the transaction, the
customer left, and Walker and his companion moved the
group to the front of the store. Walker opened the cash
register and removed approximately $150. His companion
said, “Come on. We got the money. Let’s get out.” Walker
replied, “No. We’re not going to leave any witnesses.”
Walker proceeded to march the staff into the back room
again. Walker handed his gun to his companion, took a
nearby wine bottle in hand, and struck Romero across the

Page: 8 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 9 of 49

9

forehead with it. As Romero fell, Walker struck him with a
second wine bottle. Romero lay on the floor and pretended
to be dead. Walker then lifted Romero’s wallet, felt
Romero’s back, and stated “We don’t have to worry about
this guy any more.”
Walker next ordered Vasquez and Zamora on their knees,
and they complied. Romero heard them crying and pleading
for their lives. Three shots were fired in quick succession.
Neither Romero nor Zamora observed who fired the shots.
As Walker and his companion fled, Romero heard the
customer bell and the sound of a bottle breaking in the front
of the store. He rose, saw the two boys lying in their own
blood, walked to the rear door, and witnessed Walker get into
a car in which his companion was already seated.
Vasquez died of a .32 caliber gunshot wound which
entered his forehead and exited through the back of his head.
The chief medical examiner testified for the prosecution that
the entry and exit wounds were consistent with the gun
pointing down at the victim. Zamora was shot in the head but
survived. Romero was shot in the abdomen; the bullet
ricocheted off his hip and passed through several major
organs before lodging in his chest. At the time of trial, the
bullet remained lodged in Romero’s chest.
Romero testified that he was familiar with firearms. He
described the weapon used by the shooter as smaller than a
.38. Romero identified the murder weapon in court as similar
to the gun Walker carried. Police recovered several .32
caliber shell casings from the robbery scene.
Romero provided detailed descriptions of both robbers to
the police, including height, weight, hair and eye color, skin

Case: 11-99006

10

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

tone, hats, and clothing. He described the robber with the gun
as 5 feet, 10 or 11 inches tall, with 2-to-3 inch hair braids, no
glasses, a moustache, spotty facial hair, and a nose that had a
lump and was out of proportion to his face. He was wearing
a cowboy hat, a beige zippered jogging top with dark brown
rings on the shoulders and armpits, a tank top t-shirt, pants
with a string, and dirty high-top athletic shoes. Romero gave
a similarly detailed description of the taller accomplice.
Police created composite sketches of the robbers based on
Romero’s description. The composite drawn from Romero’s
description of the robber with the gun was admitted into
evidence for the jury to consider.
2. September 5, 1979 Incident
The second incident occurred late in the evening on
September 5, 1979. Walker entered a medical building in San
Jose and pointed a gun at 20-year-old Rose Olveda. He
ordered Olveda to open the safe, but she responded that there
was no safe on the premises. Walker then ordered her into
the back room, where he demanded her money and car keys.
Olveda handed him $11 and the keys. He told her to lie down
so he could tie her up, but could not find anything to use.
Walker ordered her to stand up again, ripped open her blouse,
and touched her breasts. He then pistol-whipped her on and
about her head an estimated 12 times before she could break
away and run for the door. Walker pulled Olveda back and
continued beating her, injuring her back and fracturing her
neck.
She finally fell to the floor and feigned
unconsciousness. Walker then shot her in the head twice,
with one bullet passing through her left ear, head, and jaw
and ultimately lodging in her neck, and the other passing
through her left eye, traveling downward and lodging in her
throat. Though she survived, she lost her left eye and the

Page: 10 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 11 of 49

11

hearing in her left ear. She also had scars on her face from
the pistol-whipping.
Olveda described Walker as black; around 5’9”, about
two inches taller than herself; slender; and wearing Adidastype athletic shoes, a t-shirt, pants, a ski cap, and a white
cloth tied on his face. Police recovered several .32 caliber
shell casings from the scene.
3. The Investigation
Within five hours of the second incident, police located
Ms. Olveda’s car parked close to Walker’s sister’s residence
on Carmen Court. When he was arrested, Walker told police
he was living on Carmen Court.
That same year, Officer Evan MacIvor had been
conducting an undercover sting operation in San Jose,
impersonating a businessman who bought stolen property.
On September 26, 1979, just three weeks after the robbery
and shooting of Rose Olveda, Walker contacted MacIvor and
sold him a .32 caliber semi-automatic pistol. He informed
MacIvor that the gun belonged to him, but that he had
purchased a newer .22 caliber automatic gun, so he did not
need it anymore. MacIvor purchased the gun for $25 and
turned it over to the police department crime lab.
MacIvor met Walker again on September 28, 1979, and
told him that the gun Walker sold him did not work. Walker
responded that the gun did in fact work and demonstrated
how to use it, explaining that he needed to “release the trigger
after firing each round” because it was semi-automatic. He
added that it had helped him make a lot of money over the
prior six months. Walker added that MacIvor should not get

Case: 11-99006

03/07/2013

12

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

caught with it in his possession, because it “had done a
murder.” When pressed, Walker attributed this murder to a
friend and prior owner who was now serving time in Soledad
prison.
When they next met on October 2, 1979, MacIvor secretly
recorded their conversation. Walker informed MacIvor that
the gun had been used to commit a murder in Salinas and that
the perpetrator was serving time for the offense. When
MacIvor asked why he had held on to the gun for as long as
he did, Walker replied that the murderer asked him to dispose
of it. He had picked up the gun, oiled it down, and buried it
in the ground.
B. Trial
The state charged Walker with first-degree murder of 15year-old Vasquez; assault with intent to murder Romero,
Zamora, and Guerrero; robbery of Romero; assault with
intent to murder Olveda; robbery of Olveda; and theft of
Olveda’s vehicle. The state alleged that Walker personally
used a firearm for all of the offenses and alleged one special
circumstance under the 1978 death penalty law, that the
murder was committed during a robbery.
1. Guilt Phase
The prosecution primarily relied on two eyewitness
identifications, the testimony of an acquaintance of Walker,
a neighbor’s testimony, and the comparative analysis of the
spent shell casings and the firearm sold to Officer MacIvor.
Both Romero and Olveda positively identified Walker at

Page: 12 of 49

Case: 11-99006

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Page: 13 of 49

13

lineups and at trial. Walker, 803 F. Supp. 2d at 1051.1
Romero had previously identified him at a physical lineup.
At the second of three lineups, Romero testified, he identified
Walker “[a]s soon as he walked in.” He stated, “I knew it
was Mr. Walker. There was no question about it.” He also
recognized Walker’s voice at the lineup. Romero identified
Walker as the robber with the gun several times in court.
Even though Walker was wearing a ski mask during the
second robbery, Olveda positively identified Walker as her
assailant at one of two physical lineups and at trial. Olveda
testified that she recognized Walker mostly by his eyes, but
also by his body type, height, build, skin tone, and voice.
Another witness for the prosecution, William Sisco,2 testified
that at a party in late September 1979, he had heard Walker
brag about killing someone during a robbery. Walker had a
gun in the waistband of his pants at the time.
Five hours after the assault, police found Olveda’s car in
a carport near Walker’s sister’s residence on Carmen Court.
Upon his arrest, Walker told police he was living on Carmen
Court. Walker’s brother, Johnnie, testified that Walker lived
with their sister on Carmen Court, their mother, and Walker’s
girlfriend, Denise Jackson, in 1979. Johnnie admitted that he
told the police that he had seen his brother with the gun a few
times in early August 1979.
Additionally, a neighbor of the store, Harold Matlock,
testified that he was on his third-floor apartment balcony
around 10:30 p.m. or 11:00 p.m. when he heard what sounded

1

The third shooting victim, Zamora, had a pre-existing mental disability,
was barely able to testify, and was not asked to make an identification.
2

In some places in the record the name is spelled “Cisco.”

Case: 11-99006

14

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

like a firecracker. He leaned over his balcony and looked
down to see two black men exit the liquor store and drive
away. He saw the car only from the top and described the car
to police as a heavily oxidized, rust or tan, 1965 or 1967 fourdoor Chevy Nova with a 4 and an 8 in the license plate
number and a rear dent. Matlock later identified Walker’s car
as similar to the car he had seen. Walker’s car, in actuality a
1967 Rambler, had the same body style, oxidized color, and
rear dent as the vehicle Matlock described to the police.
Walker’s license plate also contained both numbers provided
by Matlock, 4 and 8. However, Walker’s car had four doors,
not two.
Enrique Guerrero, the customer, testified that he entered
the store, was struck on the back of his head, and did not see
anything or anybody. He awoke on the floor and staggered
out of the store to his friend’s car. He was later taken to the
hospital with a cracked skull.
Finally, a police department criminalist analyzed the
spent .32 caliber bullet casings recovered from both crime
scenes and was able to positively identify the gun Walker
sold to MacIvor as the gun used to shoot the victims at the
liquor store and to shoot Rose Olveda. The criminalist also
corroborated MacIvor’s assertion that there was no evidence
that the gun had been buried or oiled down. Walker had told
MacIvor that a friend in prison at Soledad had killed someone
with the firearm eight months earlier, but the prosecution
established at trial that there was no homicide involving a .32
caliber gun in Monterey County between October 1978 and
May 1979.
The defense argued mistaken identity, and Walker
testified on his own behalf. He testified that he could not

Page: 14 of 49

Case: 11-99006

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Page: 15 of 49

15

recall where he was on the days in question, but that he did
not commit the charged crimes. However, he did admit to
selling the gun to Officer MacIvor, but claimed he had
himself bought it from two men in a blue van. The defense
attempted to impeach the eyewitness identifications, using his
previous statements to MacIvor and the police.
At the outset of the trial, Superior Court Judge John Shatz
stated that he has never found the need to shackle any
defendant and asked Walker if there was any reason to have
him shackled. Walker answered “No,” and the trial
proceeded. The Sheriff’s office nevertheless placed a knee
restraint on Walker under his clothing for the entirety of the
trial, from the first day of voir dire through the completion of
capital sentencing. Walker and the state have stipulated that
“[t]he shackle was a heavy plastic leg-locking device secured
on either of Mr. Walker’s legs, underneath his trousers.” The
parties stipulated that Walker would have testified that:
The shackle was a solid piece of molded
plastic, approximately 2 feet long and 1/8" to
1/4" thick, weighing about three pounds. The
shackle was slit open on one side and fit to his
leg by pulling the open side apart and placing
it around his leg from the back so that the
open sides abutted his knee-cap. The shackle
was secured via two large Velcro straps, one
above and one below the knee.
It is undisputed that the trial court never made any finding on
the record of the necessity of Walker’s shackling. It is also
undisputed that the jury was aware of it.

Case: 11-99006

16

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

During the prosecution’s cross-examination of Walker’s
girlfriend, Denise Jackson, the prosecutor asked Jackson
whether Walker had a limp when she visited with him during
August and September 1979. The witness stated that Walker
did not limp as he was now doing at trial: “It wasn’t like the
brace. The brace is the reason he limps in Court.” In response
to the prosecutor’s follow-up question, she noted that his limp
in court was not due to a medical condition. Defense counsel
objected, and the judge sought to clarify the testimony for the
jury’s benefit, by posing the following to the witness:
You’re talking about the knee restraint that
the Sheriff puts on persons who are in
custody? Is that what you’re referring to?
Jackson answered in the affirmative, and the crossexamination continued. It is undisputed that Walker’s
counsel never objected to his client’s shackling or the failures
of the trial court to hold a hearing on the subject, make any
determination of its necessity on the record, or give curative
instructions to the jury or otherwise minimize the effect of the
shackling, beyond his question to Denise Jackson.
The trial spanned 11 days of a two-and-a-half week
period, not counting voir dire, before it went to the jury. The
jury deliberated for about 35 hours over the course of five
days before returning a verdict. At the end of the first day of
deliberations, the jury indicated that it was looking at only
one count. In the afternoon on the second day, the jury asked
the court to re-read Romero’s testimony, the last part of
Walker’s testimony, and the reasonable doubt instruction.
The jury then expressed confusion regarding the law for
degrees of murder, felony murder, and personal use of a
firearm. Those instructions were re-read to the jury.

Page: 16 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 17 of 49

17

On the afternoon of the third day of deliberations, the jury
asked the court to re-read Romero’s testimony from the point
he rose after the shooting until he arrived at the neighboring
apartment, and to re-read the instructions for assault and use
of a firearm. At that time, the foreman informed the court,
“[a]s you know, there are several parts to several counts. We
have arrived at a decision on some of the parts of some of the
counts.” The foreman explained that the jury was confused
about how specific intent applied to a concurrent murder and
robbery. In response, the trial court re-read the concurrenceof-act and specific-intent instructions.
The next morning, the jury informed the judge that it had
decided Counts One through Five (the charges arising out of
the first incident), but not Counts Six through Eight (the
charges arising out of the second incident). The jury asked
the court to re-read Olveda’s testimony. The next afternoon,
the jury reached its verdicts on all of the charges.
As to the first incident, the jury found Walker guilty of
first-degree murder for the murder of 15-year-old Vasquez,
in addition to two counts of assault with intent to commit
murder for Zamora and Romero, and the robbery of Romero.
The jury found that Walker personally used a firearm in the
commission of each offense. The jury also found one death
penalty special circumstance: the murder was committed
while Walker was engaged in the commission or attempted
commission of a robbery. The jury acquitted Walker of the
assault with intent to murder Enrique Guerrero, the customer
who had entered the store during the robbery and been struck
over the head with a bottle. As to the second incident
involving Rose Olveda, Walker was found guilty of assault
with intent to murder, robbery, and personal use of a firearm

Case: 11-99006

18

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

in the commission of those offenses, as well as the theft of
Olveda’s vehicle.
2. Penalty Phase
The prosecution and defense stipulated that the evidence
from the guilt phase could be considered by the jury in the
penalty phase as well. Only a few additional witnesses
testified.
The state’s witnesses testified to two violent threats
Walker had made. An Officer Nichols, a witness for the
state, testified that he intercepted a conversation between
Walker and his cousin Lawrence Martin on September 26,
1979, while they were in police custody detained on suspicion
of committing a burglary. Walker was heard telling Martin
that he would have to get the gun from MacIvor and that
MacIvor would have to be killed. Officer MacIvor testified
that, after the preliminary hearing on October 30, 1979,
Walker walked by him and a deputy district attorney, and
stated, “The hell with getting a cop. I’ll get me a D.A.”
Several family members and friends testified on Walker’s
behalf. Walker’s mother stated that Walker, then 21 years
old, had grown up in a poor family with seven brothers and
sisters. She testified that Walker worked and helped to
support the family. His sisters testified that Walker had
helped them financially and emotionally in the past. They all
asked that he be spared the death penalty. Additionally, a
church secretary testified that Walker had done some yard
work for her in the past. One of Walker’s friends testified
that he sometimes drove her to work. Defendant’s girlfriend
testified that he had assisted her emotionally and that she
loved him and did not want him to die. Walker testified again

Page: 18 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 19 of 49

19

and denied threatening the officer or the deputy D.A. He
maintained his innocence.
The jury deliberated for approximately ten hours over a
period of three days and ultimately determined that Walker
should receive the death penalty for Count One, the murder
of 15-year-old Vasquez.
II. State Litigation
On direct appeal, the California Supreme Court affirmed
Walker’s convictions and sentence. As for the matter of the
knee brace, the court held that the issue had been waived
because Walker’s counsel had not objected below. Walker,
765 P.2d at 83.
Walker subsequently filed his first habeas petition in state
court. On September 30, 1992, the California Supreme Court
denied his ineffective assistance of counsel claims “on the
merits,” but without explanation. Citing its 1989 opinion, it
reaffirmed that the shackling claim had been waived for
failure to object at trial. The court noted further that all of the
facts underlying the shackling and ineffective assistance of
counsel claims were known or readily available to Walker
and his counsel at the time of the direct appeal. The Supreme
Court denied his petition for a writ of certiorari in March
1993. Walker v. California, 507 U.S. 979 (1993).
Walker filed his second state habeas petition on June 5,
1998. On December 22, 2004, the California Supreme Court
denied this petition “on the merits for failure to state a prima
facie case for relief” and “as untimely.” It did not provide
any further explanation.

Case: 11-99006

20
III.

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL
Federal Habeas Litigation

Walker had first filed a federal habeas petition on May
20, 1997, but it was deemed unexhausted. Walker, 803 F.
Supp. 2d at 1039. Following the California Supreme Court’s
denial of his second state habeas petition in 2004, Walker
filed a Second Amended Petition for Writ of Habeas Corpus
in federal court.
Claims 2(c) and 9 are before us on appeal. Claim 2(c) is
the ineffective assistance of counsel claim based on trial
counsel’s failure to object to Walker’s shackling, during
either the guilt or penalty phase. Claim 9 is the stand-alone
shackling claim. The district court reserved judgment on
several other claims pending possible reversal of its decision
on claims 2(c) and 9 and entered a Federal Rule of Civil
Procedure 54(b) judgment granting the writ as to those
claims.
In order to avoid the necessity of an evidentiary hearing
on the shackling and ineffective assistance of counsel claims,
the state and Walker submitted a “stipulated set of facts and
evidence, including a stipulation as to witness testimony.”
The district court first held that the California Supreme
Court was objectively unreasonable in concluding that
Walker’s trial counsel’s performance was not constitutionally
deficient when he failed to object to the brace. Walker,
803 F. Supp. 2d at 1046. Noting that the law regarding
shackling was “well-established” at the time of Walker’s trial
in 1980, the court held that the record compelled the finding
that counsel’s failure to object could not have been driven by
“any reasoned, strategic, or tactical decision.” Id. And citing
Larson v. Palmateer, 515 F.3d 1057, 1063 (9th Cir. 2008),

Page: 20 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 21 of 49

21

which in turn relied on the Supreme Court’s decision in Deck
v. Missouri, 544 U.S. 622, 634–35 (2005), the court noted
that, in the absence of record findings on the necessity for
shackling the defendant, “post-hoc rationalizations” will not
cure a due process violation. Walker, 803 F. Supp. 2d at
1048. The district court further noted that the only pertinent
on-the-record finding showed the trial judge concluding that
no restraint was necessary. Id. at 1047–48 (citing Stip. Fact
¶ 2). In light of the court’s failure to make proper findings to
support the use of the knee restraint, the court could find no
justification in the record for trial counsel’s failure to object,
failure to request a hearing on the issue, and failure to request
any corrective instructions for the jury. Id.
The district court then moved to the second prong of the
Strickland test and concluded that the California Supreme
Court was objectively unreasonable in concluding that trial
counsel’s deficient performance did not prejudice the
outcome of the guilt and penalty phases of Walker’s trial. Id.
at 1049. As to the guilt phase, the court evaluated the record
against the four factors for determining whether shackling
unconstitutionally prejudices a defendant. Dyas v. Poole,
317 F.3d 934, 937–38 (9th Cir. 2003) (per curiam).3 It
concluded that a violent crime was at issue in the case; the
evidence, particularly the eyewitness testimony, was not
overwhelming; and the length of the jury’s deliberations –
approximately 35-five hours over five days – suggested that
it was a close case. Walker, 803 F. Supp. 2d at 1050–51.

3
T he district court erred in applying our Dyas multi-factor test as if it
were binding, clearly established law applicable in an AEDPA case under
28 U.S.C. § 2254(d). It is not. In AEDPA cases, we apply the Supreme
Court’s test, not our own. See Parker v. Matthews, 132 S. Ct. 2148, 2155
(2012) (per curiam).

Case: 11-99006

22

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Accordingly, the district court granted habeas relief as to the
guilt phase. Id.
The district court applied the Dyas factors to the penalty
phase as well and granted Walker habeas relief. Id. at
1052–53. The court found that Walker’s “violent nature and
propensity for future violence” were directly at issue in the
jury’s consideration of aggravating evidence the prosecution
presented, namely Walker’s alleged threats against the deputy
district attorney and Officer MacIvor. Id. at 1052.
Additionally, one juror assumed that Walker was wearing the
restraint because he had threatened a deputy district attorney.
Id. at 1053. The court also found that the length of the jury’s
deliberations (ten hours over three days) suggested that the
jury did not believe the case was “clear-cut” and that the
mitigating evidence introduced by the defense made the case
a “close call.” Id.
As to Claim 9, the stand-alone shackling claim, the
district court ruled that there were cause and prejudice to
review this procedurally defaulted claim on the merits, even
though Walker’s counsel did not object at trial and failed to
raise the issue on direct appeal until the 1989 rehearing. See
Sawyer v. Whitley, 505 U.S. 333, 338 (1992) (“Unless a
habeas petitioner shows cause and prejudice, a court may not
reach the merits of . . . procedurally defaulted claims in
which the petitioner failed to follow applicable state
procedural rules raising the claims.” (citations omitted));
Walker, 765 P.2d at 83. Constitutionally ineffective
assistance of counsel plus actual prejudice will satisfy this
test and allow habeas review of a procedurally defaulted
claim. McCleskey v. Zant, 499 U.S. 467, 494 (1991). The
district court reiterated its holding that, even under AEDPA’s
standard, the California Supreme Court had unreasonably

Page: 22 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 23 of 49

23

applied Strickland. Walker, 803 F. Supp. 2d at 1054–55.
Therefore, the court could reach the merits of the shackling
claim. Id. at 1055. On the merits, the district court found that
the physical restraints had been seen by the jury; that the
record contained no justification or judicial finding based on
state interests; and Walker suffered prejudice as a
consequence. Id. at 1055 (citing Deck, 544 U.S. at 629–32;
Cox v. Ayers, 613 F.3d 883, 890 (9th Cir. 2010)).
Accordingly, the district court granted Walker habeas relief
on the stand-alone shackling claim as well. Id.
The warden appealed the district court’s decision, arguing
that the California Supreme Court reasonably decided there
was no Strickland prejudice as to either the guilt or penalty
phase.
IV.

Jurisdiction

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s grant or denial of a petition for writ
of habeas corpus de novo. Fernandez v. Roe, 286 F.3d 1073,
1076 (9th Cir. 2002).
V. Analysis
A. Applicable Legal Standards
The Supreme Court made clear in Harrington, 131 S. Ct.
at 785–86, that a state court need not provide its rationale
before its decision can be deemed an adjudication on the
merits. “Under § 2254(d), a habeas court must determine
what arguments or theories supported or, as here, could have
supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that

Case: 11-99006

24

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

those arguments or theories are inconsistent with the holding
in a prior decision of this Court.” Id. at 786 (emphasis
added). It remains the petitioner’s burden to demonstrate that
“there was no reasonable basis for the state court to deny
relief.” Id. at 784. Therefore, “when the state court does not
supply reasoning for its decision,” we are instructed to engage
in an “independent review of the record” and ascertain
whether the state court’s decision was “objectively
unreasonable.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.
2000). Crucially, this is not a de novo review of the
constitutional question. Himes v. Thompson, 336 F.3d 848,
853 (9th Cir. 2003). Rather, “even a strong case for relief
does not mean the state court’s contrary conclusion was
unreasonable.” Richter, 131 S. Ct. at 786.
Under 28 U.S.C. § 2254(d)(1), a state court’s decision is
“contrary to . . . clearly established Federal law,” as
determined by the U.S. Supreme Court, “if the state court
applies a rule different from the governing law set forth in our
cases, or if it decides a case differently than we have done on
a set of materially indistinguishable facts.” Bell v. Cone,
535 U.S. 685, 694 (2002). A state court’s decision
“involve[s] an unreasonable application of[] clearly
established Federal law” as determined by the U.S. Supreme
Court, within the meaning of § 2254(d)(1), “if the state court
identifies the correct governing legal rule . . . but
unreasonably applies it to the facts” or “if the state court
either unreasonably extends a legal principle from our
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply.” Williams v. Taylor, 529 U.S. 362,
407 (2000). The Supreme Court has underscored that “an
unreasonable application of federal law is different from an
incorrect application of federal law.”
Id. at 410.

Page: 24 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 25 of 49

25

Accordingly, we may not grant habeas relief if “fairminded
jurists could disagree over whether” the state court’s decision
was correct. Yarborough v. Alvarado, 541 U.S. 652, 664
(2004).4
The Supreme Court’s decision in Premo v. Moore, 131
S. Ct. 733, 743–46 (2011), makes clear that the California
Supreme Court’s denial of habeas relief must be evaluated
against U.S. Supreme Court precedent on ineffective
assistance of counsel claims, principally Strickland and its
(Supreme Court) progeny. In Premo, the Ninth Circuit had
granted habeas relief, because it found the state court’s
decision was “contrary to” Arizona v. Fulminante, 499 U.S.
279 (1991), under AEDPA. Premo, 131 S. Ct. at 743–46.
The Supreme Court reversed, holding that the state court’s
determination that the petitioner failed Strickland could not
have been “contrary to” Fulminante, because the latter case
“involved the admission of an involuntary confession in
violation of the Fifth Amendment” and said “nothing about
the Strickland standard of effectiveness.” Id. Here, too, the
due process shackling cases cited by Walker simply did not
confront ineffective assistance of counsel claims. The lesson
of Premo is that Strickland bears its own distinct substantive

4

Typically, even if the requirements of 28 U.S.C. § 2254(d) are
satisfied, habeas relief nevertheless requires a further showing of “actual
prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). However,
because the relevant “clearly established law” in this case, the Strickland
test for ineffective assistance of counsel claims, already includes its own
prejudice prong, the Brecht inquiry would be duplicative. See Musladin
v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W ]here a habeas
petition governed by AEDPA alleges ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984), we apply Strickland’s prejudice standard and do not
engage in a separate analysis applying the Brecht standard.”).

Case: 11-99006

03/07/2013

26

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

standard for a constitutional violation; it does not merely
borrow or incorporate other tests for constitutional error and
prejudice. Premo, 131 S. Ct. at 743.
As previously noted, the first claim at issue on appeal
(Claim 2(c)) is an ineffective assistance of counsel claim for
failure to object to Walker’s shackling, not a due process
claim based on the shackling itself.5 Therefore, the
applicable, clearly established Supreme Court law is the
Strickland line of precedent, not the shackling due process
cases. Pinholster, 131 S. Ct. at 1403. This means that, in
order to grant habeas relief, a federal court must find that the
state court acted contrary to Strickland or was unreasonable
in concluding that Walker suffered Strickland prejudice, i.e.
a reasonable likelihood that the result would have been
different–at the guilt and/or penalty phase–but for the
constitutionally deficient performance by counsel.
“To establish ineffective assistance of counsel ‘a
defendant must show both deficient performance [by counsel]
and prejudice.’” Premo, 131 S. Ct. at 739 (quoting Knowles
v. Mirzayance, 556 U.S. 111, 122 (2009)). The Supreme
Court has explained the Strickland inquiry as follows:
To establish deficient performance, a
person challenging a conviction must show
that “counsel’s representation fell below an
objective standard of reasonableness.”
[Strickland,] 466 U.S. at 688. A court

5

Claim 9 is the procedurally defaulted due process shackling claim. The
district court reached the merits of this claim upon finding the California
Supreme Court had unreasonably applied Strickland and, therefore, “cause
and prejudice” excused the procedural default.

Page: 26 of 49

Case: 11-99006

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Page: 27 of 49

27

considering a claim of ineffective assistance
must apply a “strong presumption” that
counsel’s representation was within the “wide
range” of reasonable professional assistance.
Id., at 689. The challenger’s burden is to show
“that counsel made errors so serious that
counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth
Amendment.” Id., at 687.
With respect to prejudice, a challenger
must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome.” Id., at 694.
Richter, 131 S. Ct. at 787. “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced
a just result.” Strickland, 466 U.S. at 686. The likelihood of
a different outcome must be “substantial,” not merely
“conceivable,” Richter, 131 S. Ct. at 792, and when
Strickland and AEDPA operate “in tandem,” as here, the
review must be “doubly” deferential, id. at 788; Knowles,
556 U.S. at 123. The review is, again, not de novo: “When
§ 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s
deferential standard.” Richter, 131 S. Ct. at 788.

Case: 11-99006

28

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

The due process shackling cases cannot resolve this issue.
First and foremost, as noted, we are bound to apply Strickland
prejudice analysis, not the prejudice standard from clearly
established shackling cases at the time of the California
Supreme Court’s 2004 decision on Walker’s second state
habeas petition. Second, Deck v. Missouri, 544 U.S. 622
(2005), would not permit a finding of presumed prejudice in
this case. Deck held that “where a court, without adequate
justification, orders the defendant to wear shackles that will
be seen by the jury, the defendant need not demonstrate
actual prejudice to make out a due process violation.” Id. at
635. However, Deck was not decided until 2005, after the
California Supreme Court’s 2004 decision summarily
denying Walker’s second state habeas petition. Thus, Deck
could not be clearly established law for this case. It was also
a direct appeal, so the Supreme Court did not analyze the case
under AEDPA. Moreover, we are of course not analyzing
this claim under a due process framework, but rather against
ineffective assistance of counsel precedents and the test for
prejudice outlined in Strickland. Strickland requires an actual
finding that it is reasonably probable that, but for the
unprofessional errors, the outcome at trial would have been
different. Even if Deck had been clearly established Supreme
Court precedent in 2004, its presumed-prejudice holding
would not have controlled our determination on Walker’s
ineffective assistance of counsel claim. There are only three
types of cases in which Strickland prejudice is presumed, and
this case does not fall within any of those categories. See
Smith v. Robbins, 528 U.S. 259, 287 (2000) (listing the three
categories of presumed-prejudice Strickland cases as those
involving (1) a denial of counsel, (2) state interference with
counsel’s assistance, and/or (3) an actual conflict of interest).

Page: 28 of 49

Case: 11-99006

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Page: 29 of 49

29

B. Application of AEDPA and Strickland to Trial’s
Guilt Phase
Contrary to Walker’s contentions, our task is to decide
whether the California Supreme Court unreasonably applied
the Strickland standard. Because counsel’s deficient
performance is not raised by Warden Martel on appeal,
deficient performance is a given and we focus solely on the
Strickland prejudice prong, i.e. whether it was reasonable for
the California Supreme Court to conclude that, even if
Walker’s trial counsel had objected to and secured the
removal of the shackle, a different outcome was not
reasonably probable:
In assessing prejudice under Strickland,
the question is not whether a court can be
certain counsel’s performance had no effect
on the outcome or whether it is possible a
reasonable doubt might have been established
if counsel acted differently. Instead,
Strickland asks whether it is ‘reasonably
likely’ the result would have been different.
Richter, 131 S. Ct. 791–92 (citations omitted). Crucially,
“the Strickland standard is a general one, so the range of
reasonable applications is substantial.” Id. at 788. For the
following reasons, we conclude that the California Supreme
Court reasonably decided that Walker was not prejudiced
under Strickland.
First, while our review is confined to the separate and
distinct prejudice inquiry from Strickland, in order to assess
what effect counsel’s failure had, we necessarily must
evaluate the restraint itself and what role, if any, it may have

Case: 11-99006

03/07/2013

30

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

played in driving the jury’s verdict. Not all restraints are
created equal. The molded-plastic brace placed on Walker’s
leg underneath his clothing was not a ball and chain,
handcuffs secured to a belly chain, a gag, or the like.
Although the jury became aware of the restraint, it was
relatively unobtrusive. The jury really noticed the restraint
only when it restricted Walker’s movement to and from the
witness stand near the end of the defense’s case.
Additionally, it only suggested Walker’s custody status, not
a proclivity for violence, as his hands were unencumbered.
We have held that “the greater the intensity of shackling and
the chains’ visibility to the jurors, the greater the extent of
prejudice.” Spain v. Rushen, 883 F.2d 712, 722 (9th Cir.
1989). Thus, “physical restraints such as a waist chain, leg
irons or handcuffs may create a more prejudicial appearance
than more unobtrusive forms of restraint.” Larson, 515 F.3d
at 1064. We may look to the due process shackling cases as
illustrative of the degree of prejudice assigned to different
restraints. The knee restraint in this case was significantly
less obtrusive and restrictive than the kinds of shackles that
the Supreme Court has considered. See Deck, 544 U.S. at 625
(leg irons, handcuffs, and a belly chain); Holbrook v. Flynn,
475 U.S. 560, 568 (1986) (shackled and gagged); Illinois v.
Allen, 397 U.S. 337, 344 (1970) (bound and gagged).6

6

It was also less draconian than the shackles considered by our court in
prior cases. Cox v. Ayers, 613 F.3d 883, 890–92 (9th Cir. 2010)
(handcuffed to the chair and later handcuffed to the chair and wearing leg
restraints); Larson, 515 F.3d at 1062 (wearing a leg brace over clothing for
the first two days of a six-day trial); Comer v. Schriro, 463 F.3d 934,
963–65 (9th Cir. 2006) (slumped in a wheelchair, bleeding, nearly naked,
shackled and with his hands bound); Dyas v. Poole, 317 F.3d 934, 936–37
(9th Cir. 2003) (per curiam) (wearing leg shackles in court and brought
into and out of the courtroom in shackles); Rhoden v. Rowland, 172 F.3d
633, 635 (9th Cir. 1999) (wearing leg chains); Duckett v. Godinez, 67 F.3d

Page: 30 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 31 of 49

31

Second, during Ms. Jackson’s testimony, the trial judge
effectively communicated that this was a more-or-less routine
custody measure employed by the Sheriff’s office. A
reasonable juror would have taken from his comments that
the knee restraint’s purpose was to facilitate custody, not to
combat any perceived dangerousness of the defendant. The
judge’s comments went a long way to dispelling any
impression that Walker posed a unique threat in court. In
addition, the jury knew that Walker was in custody. In fact,
Walker himself twice told the jury during his testimony that
he was currently in jail. The California Supreme Court could
have considered these facts and reasonably determined that,
even if counsel had objected to the restraint, a different
verdict would not have been reasonably likely.
Third, the evidence upon which Walker was convicted
was robust. “[A] verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support.”
Strickland, 466 U.S. at 696. In this case, two of the three
survivors, Romero and Olveda, gave testimony and
independently identified Walker as the robber, assailant, and
murderer. These eyewitness identifications were powerfully
corroborated by Walker’s sale of the gun used in both
incidents to Officer MacIvor just three weeks after the second
robbery. As relayed to the jury, Walker told MacIvor that the
gun had been in his possession for months, had made him a
734, 746 (9th Cir. 1995) (wearing prison clothes, handcuffs, and a
security chain); Morgan v. Bunnell, 24 F.3d 49, 51–52 (9th Cir. 1994) (per
curiam) (wearing leg irons); Spain, 883 F.2d at 719, 722 (wearing 25
pounds of chains 10–12 hours a day for almost five years, including leg
irons, a waist chain that bound each hand, a chain attached to the chair and
possibly a neck chain); Stewart v. Corbin, 850 F.2d 492, 495–96 (9th Cir.
1988) (shackled, gagged, and handcuffed to a chair).

Case: 11-99006

32

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

lot of money in recent months, and “had done a murder.”
Another witness, who lived in an apartment near Dan’s Bottle
Shop, testified to witnessing the get-away vehicle for the first
robbery and described a car very similar to Walker’s car.
Additionally, Olveda’s car was found near Walker’s sister’s
residence, where he had been living in late 1979. Finally,
Walker had been caught bragging about killing someone
during a robbery. In the face of such overwhelming evidence
of Walker’s guilt, it is not reasonably probable that Walker
would have obtained a different verdict had he not been
forced to wear the restraint.
The district court relied heavily on the length of the jury’s
deliberations, but the 35 hours they spent considering the
testimony of 26 witnesses spanning two-and-a-half weeks
demonstrates only that the jury carefully considered each of
the charges. The jury was tasked with considering eight
separate criminal charges involving multiple victims of two
robberies, different degrees of homicide, “special
circumstance” allegations for multiple charges, voluminous
testimony, jury instructions it found confusing, and
complicated verdict forms. The jury went through each
element of each charge, taking defense counsel’s advice. As
it considered each charge, the jury asked the court to re-read
the instructions and testimony relevant to the charge. The
California Supreme Court reasonably could have inferred that
this conduct was consistent with diligence and care, not an
unambiguous sign that it was a close case.
Fourth, the jury acquitted Walker of assault with intent to
murder Guerrero.
This telling fact unmistakably
demonstrates that the jury was able to analyze the evidence
fairly and was not blinded by the brace on Walker’s leg.

Page: 32 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 33 of 49

33

The California Supreme Court reasonably concluded that,
even if Walker’s counsel had objected to the restraint and
even if the shackle had been removed for trial, it is not
reasonably likely that the outcome would have been different.
C. Application of AEDPA and Strickland to Trial’s
Penalty Phase
The district court also erred in granting habeas relief as to
the penalty phase, seemingly applying a de novo review of
the Strickland prejudice analysis and then asserting that the
California Supreme Court reached a patently unreasonable
conclusion. See Richter, 131 S. Ct. at 786 (disapproving the
Ninth Circuit’s “de novo review” of Strickland inquiry and
then “declar[ing], without further explanation, that the ‘state
court’s decision to the contrary constituted an unreasonable
application of Strickland’” (citation omitted)). The question,
properly framed, has two layers, but they form a single
inquiry: whether the California Supreme Court was (1)
reasonable in concluding that (2) it is not reasonably
probable that Walker would have avoided the death penalty
had his counsel objected to the shackle. Strickland, 466 U.S.
at 695; Woodford v. Visciotti, 537 U.S. 19, 22–23 (2002) (per
curiam).
Walker was convicted of unspeakably cruel acts,
including a murder and assault with intent to murder, all in
the course of two robberies. And, as previously discussed,
the evidence upon which he was convicted was strong. In the
first robbery, Walker executed a young man and attempted to
kill two other individuals, who were left permanently injured,
for $150 in cash and a wallet. In the second robbery, Walker
brutally beat and then shot a young woman, permanently
injuring her–he walked away with $11 and her car keys. The

Case: 11-99006

03/07/2013

34

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

record establishes that Walker’s motive was to leave no
witnesses. The jury also heard that Walker threatened the life
of a deputy district attorney at a preliminary hearing. By way
of mitigation, the jury heard that Walker was only 19 years
old at the time of the crimes, had no prior criminal record,
had done some yard work for a church secretary, and was
loved by his mother, sisters, and girlfriend, to whom he
provided financial and emotional support.
The California Supreme Court reasonably could have
concluded that the jury’s knowledge of the knee restraint was
trivial in relation to the magnitude of his crimes, given the
caliber of the mitigation. It is hard to imagine that the
additional quantum of information gained by noticing a
custodial leg restraint worn under Walker’s clothing would
have so altered the jury’s perception of the evidence that it
would have changed the outcome.7 The California Supreme
Court was not unreasonable in deciding that it was not
reasonably probable that the jury would have balanced the

7

This case is quite different from Roche v. Davis, 291 F.3d 473 (7th Cir.
2002). Unlike W alker’s restraints, Roche’s restraints were more extensive
and actually visible above his clothes. Both of his legs were shackled in
leg cuffs or irons, and no precautions were taken to prevent the jury from
seeing the restraints. Although Roche was shackled, his co-defendant
comparatively at their joint trial was not, obviously suggesting to the jury
that Roche was dangerous. Id. at 480. Also, unlike in our case, the trial
judge said nothing to the jury to minimize the prejudicial impact.
The Seventh Circuit explained that the issue in Roche was whether
counsel was ineffective for failing to object to the shackling in addition to
failing to ensure that the jury could not see the shackles. Id. at 483. In our
case, W alker’s defense counsel arranged for the jury to take its breaks and
remain downstairs in the courthouse to prevent the jury from seeing
W alker visibly handcuffed or restrained while he was being transported
or taken into or out of the courtroom.

Page: 34 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 35 of 49

35

aggravating and mitigating evidence differently and reached
a different sentence, but for the leg brace.
D. Claim 9
Because the California Supreme Court reasonably could
conclude that Walker failed to establish Strickland prejudice,
there was no cause and prejudice to reach the due process
shackling claim contained in Claim 9. See Sawyer, 505 U.S.
at 338.
VI.

Conclusion

The California Supreme Court necessarily decided that it
was not reasonably probable that either Walker’s conviction
or sentence would have turned out differently had counsel
objected to the brace Walker wore beneath his clothing
during the trial. Given what “prejudice” means in the
ineffective assistance of counsel context, the strength of the
evidence, the nature of the brace, the atrociousness of
Walker’s crimes, and the quality of the mitigation, we cannot
say that the state court’s decision was contrary to or an
unreasonable application of United States Supreme Court
law.
REVERSED AND REMANDED.

Case: 11-99006

36

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

GOULD, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority’s holding that the state court
reasonably concluded that a jury would not have acquitted
Walker if counsel for Walker had with success objected to the
shackle. We presume that juries follow instructions that are
given, see Weeks v. Angelone, 528 U.S. 225, 234 (2000), and
here, even if the evidence had been presented without Walker
shackled, I cannot see any likelihood that a responsible jury
would have acquitted Walker. The evidence of his role in
perpetrating armed robberies, with a philosophy to leave no
witnesses, a murder, several attempted murders, and a serious
sexual and physical assault on a young woman was just too
strong to think that he was convicted because he was
shackled.
But I depart from the majority’s holding that the
California Supreme Court reasonably decided that counsel’s
deficiency did not prejudice Walker in the penalty phase.
The reason here too rests on the premise that juries follow the
instructions given them. See id. In the penalty phase, the
jury was instructed that it could implement the mercy of life
imprisonment rather than death based on mitigating evidence.
Walker’s murder and his assaults were cruel and atrocious,
but he had going for him in mitigation that he was only a
teenager when the crimes were committed, had a clean record
before then, and was good to his mother and sister. There is
no way to know how a jury would have weighed such factors
once told it had the power to permit or to preclude a death
sentence, absent shackling that weighed on the jurors’
sensibilities. Stated another way, if counsel had competently
fulfilled his duty to have his client unshackled when under the
gaze of the jury, I have grave doubt about whether Walker

Page: 36 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 37 of 49

37

still would have been sentenced to death. Because the jury’s
role is relatively unconstrained in deciding whether to opt for
mercy and life rather than the most extreme punishment of
death, we cannot say that the shackling error of counsel did
not cause prejudice to Walker.
The Supreme Court treats death differently by requiring
courts to take a closer look at capital cases even where
deference is generally given to trial-court decisions. Since
reinstating the death penalty in Gregg v. Georgia, 428 U.S.
153 (1976), the Supreme Court has required the
administration of capital cases to comply with due-process
requirements and with many special rules, see, e.g., Eddings
v. Oklahoma, 455 U.S. 104, 114–15 (1982) (requiring a
sentencer to consider and give some weight to every piece of
mitigating evidence); Lockett v. Ohio, 438 U.S. 586, 604–05
(1978) (requiring courts to introduce any mitigating evidence
that a defendant wants in the penalty phase); Woodson v.
North Carolina, 428 U.S. 280, 305 (1976) (finding a statute
imposing a mandatory death sentence for certain crimes
unconstitutional and stating that courts must be very cautious
in performing proportionality review in capital cases because
“[d]eath, in its finality differs more from life imprisonment
than a 100-year prison term differs from one of only a year or
two”); Gregg, 428 U.S. at 191–95 (holding that a sentencer
must weigh aggravating factors against mitigating factors to
ensure proportionality between the crime and the
punishment).
The Court has also carved out groups of defendants who
cannot constitutionally receive the death penalty. See Roper
v. Simmons, 543 U.S. 551, 574 (2005) (juveniles); Atkins v.
Virginia, 536 U.S. 304, 320 (2002) (mentally deficient);
Tison v. Arizona, 481 U.S. 137, 158 (1987) (nontriggermen

Case: 11-99006

38

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

involved in felonies resulting in murder absent intent to kill
or reckless indifference); Enmund v. Florida, 458 U.S. 782,
801 (1982) (same); Coker v. Georgia, 433 U.S. 584, 598–99
(1977) (rapists who do not kill anyone). These rules reinforce
that “death is different” and reflect the Supreme Court’s aim
to ensure that death is not dolled out to the undeserving. See
Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J.,
concurring) (“The penalty of death differs from all other
forms of criminal punishment, not in degree but in kind. It is
unique in its total irrevocability. It is unique in its rejection of
rehabilitation . . . . And it is unique, finally, in its absolute
renunciation of all that is embodied in our concept of
humanity.”); see also Nancy J. King & Joseph L. Hoffmann,
Habeas for the Twenty-First Century 127 (2011).
These death-penalty-specific rules are exceptions to the
Supreme Court’s general principle that we take a deferential
approach when evaluating a sentence imposed by a state
court. See, e.g., Ewing v. California, 538 U.S. 11, 17–18,
29–30 (2003) (noting that a high degree of deference must be
given to the policy judgments of the state in performing
proportionality review and upholding the imposition of a
potential life sentence for stealing three golf clubs under
California’s three strikes law); Harmelin v. Michigan,
501 U.S. 957, 995–96 (1991) (upholding a statute that
imposed a mandatory life sentence without parole for simple
possession of more than 650 grams of cocaine); Hutto v.
Davis, 454 U.S. 370, 370–71, 374 & n.3 (1982) (per curiam)
(upholding a forty-year prison sentence for possession with
intent to distribute nine ounces of marijuana); Rummel v.
Estelle, 445 U.S. 263, 266, 285 (1980) (refusing to strike
down a mandatory sentence of life imprisonment under the
Texas recidivist statute for obtaining $120.75 by false
pretenses).

Page: 38 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 39 of 49

39

A defendant demonstrates a claim of constitutionally
ineffective assistance of counsel when: (1) counsel’s efforts
in defense are “outside the wide range of professionally
competent assistance[;]” and (2) the defendant thereby suffers
prejudice. Strickland v. Washington, 466 U.S. 668, 690–94
(1984). Warden Martel did not appeal the district court’s
finding that the state court unreasonably determined that
Walker’s attorney performed satisfactorily. See Walker v.
Martel, 803 F. Supp. 2d 1032, 1046–1049 (N.D. Cal. 2011)
(“Given the clearly established federal law and the undisputed
facts in this case, this court must conclude that the state
court’s summary decision that there was no deficient
performance is objectively unreasonable.”).
This is
understandable. The state trial court made no findings on
need for shackling, which were beyond doubt required by
federal law. Notwithstanding the absence of any findings
justifying shackling, Walker’s lawyer did not object to the
shackling, though any competent lawyer paying attention to
it would have done so. We therefore accept that the
attorney’s performance was deficient, leaving us to consider
whether the state court was unreasonable in determining that
counsel’s unprofessional performance did not prejudice
Walker. Prejudice is established when a challenger
demonstrates that there is a reasonable probability that, “but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Premo v. Moore,
131 S. Ct. 733, 739 (2011) (quoting Padilla v. Kentucky,
559 U.S. 356, 130 S. Ct. 1473, 1482 (2010)); see also
Strickland, 466 U.S. at 694. This issue poses the crux of this
appeal.
An assumption of prejudice does not automatically spring
from counsel’s deficiency because failure to object to
shackling does not fall within the three categories on which

Case: 11-99006

40

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

prejudice is presumed. Smith v. Robbins, 528 U.S. 259, 287
(2000) (stating that a denial of counsel, state interference with
counsel’s assistance, and an actual conflict of interest are the
only errors that lead to presumed prejudice in the ineffective
assistance of counsel context). But because prejudice is not
presumed does not mean that it is absent. The majority cites
to Premo v. Moore to support its decision to dismiss the
Court’s holding in Deck v. Missouri, 544 U.S. 622, 635
(2005) (holding that “where a court, without adequate
justification orders the defendant to wear shackles that will be
seen by the jury, the defendant need not demonstrate actual
prejudice”). But Moore involved a challenge to a conviction
and not a death sentence. 131 S. Ct. at 737–39. And Moore
only held that the cases in which due-process claims are
directly raised, as opposed to cases in which due-process
problems are challenged through the lens of ineffective
assistance of counsel, cannot establish per se rules of
prejudice in the Strickland context. Id. at 744–45. Nowhere
did Moore suggest that Deck and cases like it should be
rendered irrelevant. Due-process cases discussing the degree
of prejudice resulting from an underlying error that is the
consequence of an attorney’s deficiency are persuasive
because they help us assess an error’s significance. See
Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447, 453–55
(2009) (per curiam) (granting habeas relief from a death
sentence on AEDPA review of a Strickland ineffective
assistance of counsel claim based on counsel’s failure to
introduce mitigating evidence and citing several nonStrickland cases in support of a prejudice finding).
Deck and the other shackling cases suggest that error
resulting in a defendant’s visible restraint is serious when
shackling is known to the jury. Deck, 544 U.S. at 633 (“The
appearance of the offender during the penalty phase in

Page: 40 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 41 of 49

41

shackles . . . almost inevitably implies to a jury, as a matter of
common sense, that court authorities consider the offender a
danger to the community—often a statutory aggravator and
nearly always a relevant factor in jury decisionmaking . . . .
It also almost inevitably affects adversely the jury’s
perception of the character of the defendant.”); Holbrook v.
Flynn, 475 U.S. 560, 570 (1986) (“Whenever a courtroom
arrangement is challenged as inherently prejudicial . . . the
question must be not whether jurors actually articulated a
consciousness of some prejudicial effect, but rather whether
an unacceptable risk is presented of impermissible factors
coming into play.” (internal quotation marks omitted));
Illinois v. Allen, 397 U.S. 337, 344 (1970) (“[N]o person
should be tried while shackled and gagged except as a last
resort.”); Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir.
2008) (“[P]hysical restraints such as a waist chain, leg irons
or handcuffs may create a more prejudicial appearance than
more unobtrusive forms of restraint.”); Spain v. Rushen,
883 F.2d 712, 722 (9th Cir. 1989) (“[T]he greater the
intensity of shackling and the chains’ visibility to the jurors,
the greater the extent of prejudice.”). We can conclude from
these cases that although obtrusive shackling intensifies the
degree of prejudice, even minor shackling may result in
prejudice. See Roche v. Davis, 291 F.3d 473, 482–83 (7th
Cir. 2002) (noting that “the sight of a defendant in shackles
‘could instill in the jury a belief that the defendant is a
dangerous individual who cannot be controlled, an idea that
could be devastating to his defense.’” (quoting Harrell v.
Israel, 627 F.2d 632, 637 (7th Cir. 1982))).
In deciding that the state court was reasonable in finding
that Walker was not prejudiced in either the guilt or penalty
phase, the majority relies on three primary points: that the
shackle itself was unobtrusive and nonprejudicial; that the

Case: 11-99006

42

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

trial judge dispelled the impression that Walker was a threat;
and that the evidence against Walker was strong. I agree with
the third point and conclude that it justifies the California
Supreme Court’s finding as to Walker’s guilt. But I part
company with the majority as to the penalty phase,
concluding that the majority minimizes the prejudicial effect
of the shackle and maximizes the ameliorative power of the
judge’s instructions, and tolerates shackling absent
justifications in a penalty-phase context where shackling is
inherently unfair to a defendant’s legitimate prospect that a
jury will show mercy and favor life over death.
The jury in this case was considering the fate of young
adult who was only a teenager when he committed the
crimes; a teenager with no prior criminal record, who grew up
poor and gave financial and emotional support to his mother
and sisters. People v. Walker, 765 P.2d 70, 87–88 (Cal.
1988). The jury was contemplating whether to extinguish the
life of a young man who was loved by his family, whatever
the horror of the crimes he committed against others. Id. I
have grave doubt whether the shackle diminished these
mitigating facts and intensified aggravating factors such as
the dangerousness of Walker.
Jurors were aware of the shackle when Walker
approached the witness stand to testify as it prevented Walker
from walking “normally.” Despite being underneath
Walker’s pant leg, some jurors also saw the leg brace (or
other forms of restraints that Walker periodically wore, such
as handcuffs and a waist chain) apart from when Walker
approached the witness stand. One juror testified that she
assumed Walker’s movement was confined “because of what
he was being held for” and said that “the shackles seemed
like a short lead on a vicious dog.” The prosecutor drew

Page: 42 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 43 of 49

43

attention to the shackle in re-cross examination of Walker’s
girlfriend during the guilt phase. On one occasion, the bailiff
“jump[ed] up behind [Walker] and subsequently handcuff[ed]
him within view of the jury” after Walker adjusted the brace.
The jury “looked scared as a result.” Because of these facts
I do not share the majority’s opinion that the shackle was not
obtrusive and prejudicial.
Although the majority states that “the judge indicated to
the jury that the brace was a more-or-less routine measure
taken by the sheriff for all persons in custody,” I do not give
much weight to the statement’s ameliorative effect. We
presume that jurors carefully follow instructions. See Francis
v. Franklin, 471 U.S. 307, 324 n.9 (1985); see also Weeks,
528 U.S. at 234. But the judge’s explanation about the
shackle was not phrased as an instruction to guide the jury,
and should not be viewed by us as an instruction to be
followed.
The judge did not specifically tell the jury how to
perceive the shackle. Instead, the judge merely interrupted
the testimony of Ms. Jackson, who had brought up the brace
while being questioned by the prosecutor. The judge then
asked, “You’re talking about the knee restraint that the
Sheriff puts on persons who are in custody? Is that what you
are referring to?” This passing statement is not the same as
explicit instructions given in cases where courts have found
that a judge’s statements cured the general prejudice of
shackles. See Woods v. Thieret, 5 F.3d 244, 249 (7th Cir.
1993) (where the judge “went even further [than removing
the jury while inmates were escorted wearing shackles to the
witness stand] and gave a curative instruction advising the
jury to disregard the restraints when assessing the
testimony”); Holloway v. Alexander, 957 F.2d 529, 530 (8th

Case: 11-99006

44

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Cir. 1992) (where the judge “admonished the jury to
disregard the shackles in their consideration of [defendant’s]
case”). Reasonable jurors would not have considered the
judge’s remark a directive, so we cannot presume that it had
a curative effect. The comment by the judge also does not
suggest that all persons in custody, both violent and
nonviolent, wear the shackle.
We cannot be absolutely certain how the presentation of
an unshackled Walker would have affected the possibility that
a jury would have shown mercy. But certainty is not
required. Prejudice is shown where there is a reasonable
probability that the outcome would have been different.
Strickland, 466 U.S. at 694. Where, as here, a unanimous
sentence is required, there need only be a reasonable
probability that “at least one juror could reasonably have
determined that . . . death was not an appropriate sentence.”
Neal v. Puckett, 239 F.3d 683, 691–92 (5th Cir. 2001)
(footnote omitted); see also Cal. Penal Code § 190.4(b)
(imposing the death penalty must be a unanimous decision by
the jury).
The majority correctly states that Walker bears the burden
of proving that he was prejudiced by his attorney’s error such
that “there was no reasonable basis for the state court to deny
relief.” See Harrington v. Richter, 131 S. Ct. 770, 784, 787
(2011). But I do not see how we can reasonably let the death
penalty stand against Walker when the question of whether
the jury would have extended mercy is so inherently
unknowable with certainty. See Murtishaw v. Woodford,
255 F.3d 926, 974 (9th Cir. 2001) (noting that “[b]ecause [the
court] cannot actually determine whether the jury would have
exercised leniency, [it] cannot determine, one way or another,
whether the failure to give the jury that option resulted in

Page: 44 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 45 of 49

45

‘actual prejudice’ to [the defendant]” but reversing and
remanding a death sentence due to “‘grave doubt’ about
whether the jury would have returned a death sentence”). It
is sufficient that we have grave doubts on the propriety of the
penalty because it is reasonably probable that the jury might
have shown mercy absent shackling.
In considering a similar habeas capital case where a
defendant was placed in leg cuffs during both the guilt and
penalty phases of trial, the Seventh Circuit in Roche v. Davis
found that the risk of prejudice from being unjustly shackled
is high and granted relief on the offender’s death sentence
after finding that aggravating circumstances barely
outweighed the mitigating circumstances in the penalty
phase.1 291 F.3d at 484–85. The Seventh Circuit noted that
the “extreme inherent prejudice associated with shackling . . .
and the considerable mitigating evidence” established a
1

The majority attempts to distinguish this case on the following
grounds: (1) that Roche was tried together with a co-defendant who was
not shackled giving rise to the presumption that Roche was dangerous
whereas W alker was tried alone; (2) that Roche’s restraints were “more
extensive” than W alker’s and were actually visible above Roche’s clothes;
and (3) that the judge presiding over Roche’s case said nothing to
minimize the prejudicial impact of the restraints whereas the judge in
W alker’s case did. But Roche is not distinguishable from the present case.
W hile W alker was not tried with a co-defendant, the shackles in Roche
were not more obtrusive and prejudicial than those here. Although
Roche’s shackles were above his pant leg and W alker’s brace was not,
“the sole mention” of the existence of the shackles in Roche was when
counsel requested that he would like to have Roche seated at the witness
chair before the jury came in so that they would not see his leg cuffs.
291 F.3d at 483. In contrast, at W alker’s trial, there were several incidents
involving the brace that are reflected in the record and are points of
concern. The only precaution in this case taken to ensure that W alker’s
brace was not visible while he sat as counsel’s table was placing the bulky
device under his pant leg.

Case: 11-99006

46

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

“‘reasonable probability’ that but for his counsel’s deficient
performance, the result of [Roche’s] sentencing hearing
would have been different.” Id. at 484 (citations omitted).
The court concluded that the state court’s failure to find
prejudice was inconsistent with Strickland. See id.
We must consider whether the jury would have spared
Walker had he not been shackled. In light of the mitigating
evidence presented by Walker, I conclude that there is a real
probability that absent the shackle’s presence, at least one
juror would have concluded that Walker should not be put to
death for his crimes committed when a teenager.
In Walker’s case, the death penalty was not a certainty.
In the penalty phase alone it took the jury about 10.5 hours
over the course of three days to reach their decision
recommending that Walker be given the death. This is
relevant to the question of whether to grant relief and longer
than the deliberations in several other penalty cases in which
habeas relief was granted. Bean v. Calderon, 163 F.3d 1073,
1081 (9th Cir. 1998) (“[W]e find it noteworthy that the jury
was initially divided over the appropriateness of the death
penalty, deadlocking as to both murders before ultimately
returning a death verdict . . . .”); see Murtishaw, 255 F.3d at
974 (discussing the role of the jury in deciding whether to
impose the death penalty and granting relief where the jury
deliberated for two days before returning the death sentence);
see also Roche, 291 F.3d at 484 (noting that after eight hours
of deliberating the jury was unable to recommend death).

Page: 46 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 47 of 49

47

Shakespeare told us that “[t]he quality of mercy is not
strain’d,”2 Milton instructed us to “temper so [j]ustice with
mercy” and advised us that “[m]ercy [must] colleague with
justice,”3 and President Lincoln reminded us that “mercy
bears richer fruits than strict justice.”4 This sentiment in the
mind of just one juror could have spared Walker the death
penalty. The possibility of mercy is not predictable. It
cannot be measured with any degree of accuracy. Here,
Walker committed the crimes as a teenager, was loved by his
girlfriend who felt he was innocent and “did not want him to
die,” grew up in poverty, and provided emotional support to
his family. See Walker, 765 P.2d at 87. In the penalty phase
of Walker’s trial, a church secretary testified that Walker had
helped her with yard work and one of Walker’s friends
testified that Walker drove her to work. Id. Under the
framework established by the Supreme Court, it would seem
that a modern-day Jack the Ripper whose only mitigation was
that he was good to his mother could be spared by a jury,
indeed a jury can opt for mercy without giving a reason.
Given the mitigating evidence presented for Walker, even
though it was sparse, and the prejudice that the shackle likely
produced, there is a reasonable likelihood the failure of

2

W illiam Shakespeare, The Merchant of Venice act 4, sc. 1, l. 184 (H.
L. Withers ed., D. C. Heath & Co. 1916).
3

John Milton, Paradise Lost 345, bk. X, ll. 59, 77–78 (Appleton ed.
1851).
4
Quotation attributed to Abraham Lincoln from a conversation where
Lincoln apparently decided to pardon some young men from New Jersey
who had deserted the army, were recaptured, and were sentenced to death.
Osborn H. Oldroyd, The Lincoln Memorial: Album-Immortelles 459
(Gem Publ’g House 1882).

Case: 11-99006

48

03/07/2013

ID: 8540694

DktEntry: 17-1

WALKER V . MARTEL

Walker’s counsel to object to the shackle forfeited Walker’s
chance at mercy.
I do not disagree with the majority that the shackling of
Walker in court during the penalty phase may have been
“trivial” in comparison with his horrific crimes and intention
to leave no witnesses to his robberies. I could also agree that
technically speaking the presumptive prejudice rule of Deck
may not apply both because we deal with Strickland
prejudice, not shackling due-process prejudice, and because
Deck was decided after the state appellate decision here in
question. But nonetheless, for the same reasons that animated
Deck, we should be concerned that shackling almost certainly
would not assist Walker in getting a favorable determination
at the penalty phase because it reinforced the idea of Walker’s
dangerousness at a time when the jury was tasked with
considering whether to extend mercy to him. From the 1970s
onward the Supreme Court has had an uneasy truce with the
death penalty, permitting it to be applied when all the i’s are
dotted, all the t’s are crossed, all formalities followed, and
discretion constrained in permissible ways, but also carving
out areas where the death penalty cannot be given to certain
persons, like the mentally deficient or juveniles. At the same
time the Supreme Court has made clear that the mitigation
factors that can be considered are open-ended, and should not
be limited by state or federal courts, Lockett, 438 U.S. at
604–05, and that only the jury can make the death-qualifying
decision, see Ring v. Arizona, 536 U.S. 584, 609 (2010).
Although the AEDPA precedents make the result less than
clear, given the Supreme Court’s approach to the death
penalty in past decades I believe that absent harmless error
we must enforce a regime requiring strict compliance with
law before implementation of a death penalty. And harmless
error cannot be relied upon if there is a reasonable probability

Page: 48 of 49

Case: 11-99006

03/07/2013

ID: 8540694

WALKER V . MARTEL

DktEntry: 17-1

Page: 49 of 49

49

that the error affected the vote of one juror because of jury
unanimity requirements. I would hold that the death-penalty
phase of a capital trial, where jurors have an unconstrained
right to prevent death and show mercy in light of unbounded
mitigation factors, cannot be properly held while a defendant
is shackled before the court and jury without adequate
findings and justification for the shackling. To permit that
puts a death-heavy thumb on the scale of the jury’s
considerations just when the jury is empowered freely to vote
for life and mercy rather than death as the ultimate
punishment.
I would reverse the decision of the district court as to
Walker’s conviction, concluding that the shackling did not
prejudice Walker by impacting what I think was the
inevitable conclusion of the jury on the evidence and jury
instructions. But I would affirm the decision of the district
court to grant Walker relief on his death sentence because he
should receive another penalty-phase trial at which he is not
improperly shackled so that a jury can weigh the aggravating
factors relating to his crimes against the mitigating factors of
his youth and family relationships before deciding if he is
eligible for the punishment of death. I respectfully dissent in
part.