In the
United States Court of Appeals
For the Seventh Circuit

No. 97-3124

SCOTT A. FOUNTAIN,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 97 C 218--John C. Shabaz, Chief Judge.



Argued October 27, 1999--Decided May 1, 2000




      Before BAUER, COFFEY and EASTERBROOK, Circuit Judges.

      COFFEY, Circuit Judge. Nine years after his
direct appeals to this Court, on April 1, 1997,
Petitioner Scott A. Fountain ("Fountain") moved
to vacate his sentence under 28 U.S.C. sec. 2255.
After the district court denied his sec. 2255
motion on June 2, 1997, Fountain moved to alter
or amend the judgment, which the district court
also denied. On August 7, 1997, Fountain appealed
the court’s June 2, 1997 decision and
subsequently filed a request for a certificate of
appealability with the court. Although the trial
judge denied Fountain’s request, we granted the
petitioner a certificate of appealability limited
to the question of whether he was denied the
effective assistance of counsel when his trial
counsel failed to object at trial and failed to
raise on direct appeal the issue of whether he
was denied a fair trial when he was allegedly
required to wear leg shackles in the presence of
the jury. We AFFIRM.

I.  BACKGROUND
      On August 14, 1986, a jury found Fountain
guilty of murdering a federal correctional
officer and conspiring to commit that murder. He
was sentenced to life imprisonment plus 150 years
on September 19, 1986./1 We affirmed his murder
conviction on February 22, 1988, while modifying
his sentence on the conspiracy conviction./2

      Nine years later, on April 1, 1997, Petitioner
moved to vacate his sentence under 28 U.S.C. sec.
2255, listing fourteen grounds, not including
sub-parts, in support of his motion. Although the
district court denied his sec. 2255 motion on
June 2, 1997, Fountain remained undeterred and
moved to alter or amend the district court’s
judgment on June 12, 1997, which was also denied
5 days later.

      Seeking appellate review, Petitioner filed a
notice of appeal and, as required under 28 U.S.C.
sec. 2253, requested a certificate of
appealability from the district court. Although
the district judge denied his request, on
September 28, 1998, this Court granted a
certificate only as to one issue:

       IT IS FURTHER ORDERED that a certificate of
appealability is GRANTED only as to the following
issue:

whether petitioner was denied the effective
assistance of counsel when his attorney failed to
make appropriate objections or motions during
trial, and failed to raise on direct appeal, the
issue of whether petitioner was denied a fair
trial because he was required to wear leg
shackles, which the jury was able to see.

II.    ISSUE

       Our review on appeal is limited to whether
petitioner was denied the effective assistance of
counsel when his attorney failed to make
appropriate objections or motions during trial or
raise on direct appeal the issue of whether
Fountain was denied a fair trial because he was
allegedly required to wear leg shackles in the
presence of the jury. This issue, however, begs
a number of more preliminary questions: Did
Fountain in fact wear shackles during trial; and
if true, were they visible to the jury (i.e.,
were they covered or hidden from the view of the
jury)?

III.    DISCUSSION

      At the outset, Petitioner attempts to raise
additional issues, extraneous to the above
certified question, including that: the district
court lacked subject matter jurisdiction because
the locus of where the crime occurred was not
within the "territorial jurisdiction" of the
federal government; and his counsel’s failure to
object to the trial judge’s reading of his 1984
presentence report and the prejudicial and
irrelevant questioning of his inmate witnesses
and the government’s closing arguments, fell
below an objective standard of reasonableness.

      These issues, however, have not been properly
presented to us for review. An appeal under sec.
2255 is permissible only if a certificate of
appealability is issued. See 28 U.S.C. sec.
2253(c)(1)(B). "The certificate is a screening
device, helping to conserve judicial (and
prosecutorial) resources. The obligation to
identify a specific issue concentrates the
parties’ attention (and screens out weak issues);
the limitation to constitutional claims also
reduces the number of appeals while
simultaneously removing a category of claim that
. . . has poor prospects." Young v. United
States, 124 F.3d 794, 799 (7th Cir. 1997).
Indeed, unless the parties "confine [their]
attention to the questions in the certificate of
appealability, specification serves no function."
Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir.
1998). Here, Petitioner raises numerous arguments
that do not speak directly, or even tangentially,
to the question certified and without an
expansion of the certificate by this Court, we
are not required to and will not address them,
regardless of their merits.

      Fountain contends that these additional
arguments are consistent with our order
accompanying our granting of the certificate of
appealability. That order, however, clearly
stated that we were appointing counsel for the
petitioner and set forth the briefing schedule
"[p]ursuant to this court’s order of September
28, 1998" granting the certificate. The order
also reiterated the sole certified question:

      Counsel shall address the following issue, as
well as any other issues he deems appropriate:

Whether petitioner was denied the effective
assistance of counsel when his attorney failed to
make appropriate objections or motions during
trial, and failed to raise on direct appeal, the
issue of whether petitioner was denied a fair
trial because he was required to wear leg
shackles, which the jury was able to see.

Despite the petitioner’s contention and his
counsel’s woeful attempts to strain this Court’s
language,/3 it is obvious that only arguments
that directly address the specific ineffective
assistance of counsel claim identified in the
certificate of appealability would be
"appropriate," and accordingly, we see no need to
discuss any others. We proceed on the sole issue
identified in the certificate.

      We review a district court’s denial of a sec.
2255 motion to vacate the sentence de novo on
questions of law and for clear error on factual
issues. See Wilson v. United States, 125 F.3d
1087, 1090 (7th Cir. 1997); Stoia v. United
States, 109 F.3d 392, 395 (7th Cir. 1997). An
ineffective assistance of counsel claim that
constitutes the basis of a sec. 2255 motion is
reviewed de novo. See id.

      A sec. 2255 motion must be granted when a
defendant’s "sentence was imposed in violation of
the Constitution or laws of the United States."
28 U.S.C. sec. 2255. It is well-established,
however, that a sec. 2255 motion is not a
substitute for direct appeal. See Barnickel v.
United States, 113 F.3d 704, 706 (7th Cir. 1997).
Claims not raised on direct appeal are barred
from collateral review unless upon review, we
have been convinced that a failure to consider
the issue would amount to a fundamental
miscarriage of justice. See Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996).
Ineffective assistance of counsel claims will
generally fit into this mold; they generally are
not appropriate for review on direct appeal as
they often attempt to rely on evidence outside
the record. See United States v. D’Iguillont, 979
F.2d 612, 614 (7th Cir. 1992). Nonetheless,
"[r]egardless of when it is made, because counsel
is presumed effective, a party bears a heavy
burden in making out a winning claim based on
ineffective assistance of counsel." United States
v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).

      To make out a successful ineffective assistance
of counsel claim, the petitioner must demonstrate
that: (1) his counsel’s performance fell below an
objective standard of reasonableness; and (2) the
deficient performance so prejudiced his defense
that it deprived him of a fair trial. See
Strickland v. Washington, 466 U.S. 668, 688-94
(1984).

With regard to the performance prong, [the]
defendant must direct us to the specific acts or
omissions which form the basis of his claim. The
court must then determine whether, in light of
all the circumstances, the alleged acts or
omissions were outside the wide range of
professionally competent assistance.

Trevino, 60 F.3d at 338. Moreover, claims that an
attorney was ineffective necessarily involve
inquiries into an attorney’s trial strategies,
which in turn requires facts which usually are
not contained in the trial record. As such, many
trial determinations, like so many "other
decisions that an attorney must make in the
course of representation[, are] a matter of
professional judgment." United States v.
Berkowitz, 927 F.2d 1376, 1382 (7th Cir. 1991).
Thus, we must resist a natural temptation to
become a "Monday morning quarterback." Harris v.
Reed, 894 F.2d 871, 877 (7th Cir. 1990).

It is not our task to call the plays as we think
they should have been called. On the contrary, we
must seek to evaluate the conduct from counsel’s
perspective at the time, and must indulge a
strong presumption that counsel’s conduct falls
within a wide range of reasonable professional
assistance.

United States v. Ashimi, 932 F.2d 643, 648 (7th
Cir. 1991) (citations and quotations omitted).

      Should the petitioner satisfy the performance
prong, he must then fulfill the prejudice prong
by demonstrating "that there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceedings would have been different." United
States v. Starnes, 14 F.3d 1207, 1209-10 (7th
Cir. 1994). "In making the determination whether
the specified errors resulted in the required
prejudice, a court should presume . . . that the
judge or jury acted according to law."
Strickland, 466 U.S. at 694. Further,

[A] court hearing an ineffectiveness claim must
consider the totality of the evidence before the
judge or jury. Some of the factual findings will
have been unaffected by the errors, and factual
findings that were affected will have been
affected in different ways. Some errors will have
had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire
evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, 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. Taking the
unaffected findings as a given, and taking due
account of the effect of the errors on the
remaining findings, a court making the prejudice
inquiry must ask if the defendant has met the
burden of showing that the decision reached would
reasonably likely have been different absent the
errors.

Id. at 695-96.

      Initially, we must resolve whether Fountain has
directed this Court’s attention to facts that
will serve to establish that he in fact did wear
shackles in the presence of the jury./4 The
petitioner’s briefs submitted to this Court fails
to identify any evidence of his shackles, or for
that matter, that the jury was able to see them
if they were looking, and our review of the
record fails to reveal the same. But it is
interesting to note that Fountain asserts that
witnesses at trial made in-court identifications
of him by describing the shoes and pants he was
wearing in court,/5 thus indicating, he
suggests, that his entire body, including his
shackles, were in plain view of the jury. Our
review of this bald assertion, however, reveals
no evidence or suggestion that he wore shackles
which were seen by the jury or that any witness
made any reference to, described or mentioned the
petitioner as wearing shackles. Fountain also
directs our attention to just prior to the
beginning of jury deliberations when he and his
counsel were asked to approach the judge for a
brief bench conference, which he claims, also
exposed his shackles to the jury. Here again,
Fountain’s argument constitutes nothing but a
bald and unsupported assertion of a fact not set
forth in the record./6 Indeed, the absence of
any direct or indirect evidence of the
petitioner’s shackles in the trial transcripts,
as well as the raising of this issue nine years
after his direct appeal, strongly suggests the
absence of his shackling./7 But even if we were
to assume that the petitioner was shackled, he
has also failed to present any evidence that the
jury was aware of them or that they were readily
visible./8

      Accordingly, we conclude that with nothing more
than Fountain’s own unsupported assertions of his
shackling that the jury was able to see, and a
record devoid of any reference to such, he has
failed to sufficiently "direct us to the specific
acts or omissions which form the basis of his
[ineffective assistance of counsel] claim." See
Trevino, 60 F.3d at 338. Thus, we also conclude
that the petitioner has failed to overcome the
heavy burden and presumption that his counsel was
constitutionally effective. See id.

      But even if we were to assume that the
petitioner was shackled during trial and the jury
could and did observe his shackles, such a
viewing by the jury would not have caused any
prejudice because it would have revealed facts
that the jury in all probability ascertained from
the trial: the trial testimony reflected that
Fountain was incarcerated in a maximum security
prison when the murder of the correctional
officer took place. Moreover, we cannot say with
any certainty that "but for" his counsel’s
failure to object to or appeal the jury’s
observation of his shackles, the outcome of the
trial would have been different, see Starnes, 14
F.3d at 1209-10, in light of the substantial
evidence of his guilt posited at trial./9 All of
the events leading up to Fountain’s involvement
in the murder of the correctional officer, from
the pre-murder planning, to the murder itself and
the post-murder admissions, were established and
corroborated by witness testimony and physical
evidence./10 Thus, had the petitioner even
detailed specific facts of his shackling to our
satisfaction, his claim would still fall short
because he has failed to establish that he was
prejudiced by the allegedly defective assistance
of counsel.

      Moreover, although there exists case law that
has held that the shackling of a defendant in
front of a jury can have a prejudicial impact
upon the rights of a defendant, see Illinois v.
Allen, 397 U.S. 337, 344 (1970); Harrell v.
Israel, 672 F.2d 632, 635 (7th Cir. 1982), it is
well established that a defendant may be shackled
in the presence of a jury upon a showing of
"extreme need," which has been defined as
"necessary to maintain the security of the
courtroom." Lemons v. Skidmore, 985 F.2d 354, 358
(7th Cir. 1993). After holding a hearing to
determine a restraining scheme that would balance
the court’s safety concerns against the potential
prejudice to a defendant, a trial court has wide
discretion in determining whether there is an
"extreme need" for the restraining of a
defendant. See id. Thus, assuming Fountain wore
shackles at trial and the jury was able to see
them, the trial judge was not required to sustain
an objection in light of the court’s strong
interest in maintaining courtroom security and
its wide discretion in determining when and what
restraints are required. See id. Similarly, in
Woods v. Thieret, 5 F.3d 244, 248-49 (7th Cir.
1993), we considered the criminal histories of
the defendants and the physical layout of the
courtroom when we upheld a trial judge’s use of
restraints for inmates with violent criminal
histories and serving long sentences, as
necessary to maintain the security concerns of
the court as well as the U.S. Marshals. Likewise
here, the trial judge could very well have
required Fountain to wear shackles at trial
because at the time, he was incarcerated "in
administrative segregation at the level 6,
maximum security prison at Marion, Illinois," had
a criminal history of various military offenses,
including assault with a dangerous weapon and
destroying government property, and "experienced
a poor adjustment throughout his incarceration .
. . [with] numerous disciplinary actions which
are related to his impulsive and quick temper."
Again, we are of the opinion that even if
Fountain was shackled in the presence of the jury
and established that his counsel’s assistance was
defective, he has failed to demonstrate prejudice
because effective counsel likely would not have
altered the results of the proceedings. See
Starnes, 14 F.3d at 1209-10.
      We deny the petitioner’s sec. 2255 motion to
vacate his sentence.

IV.   CONCLUSION

      We conclude that the petitioner has failed to
sufficiently detail the specific facts and
circumstances of his shackling at trial and
failed to demonstrate sufficient prejudice caused
by the alleged ineffective assistance of counsel.
We AFFIRM.


/1 This Court vacated Fountain’s original conviction
due to the district court’s failure to comply
with Federal Rule of Criminal Procedure 11(f) and
remanded the case for re-pleading. See United
States v. Fountain, 777 F.2d 351, 357-59 (7th
Cir. 1985). Although not at issue in this appeal,
for a full procedural history and background of
Fountain’s offenses and conviction, see United
States v. Fountain, 777 F.2d 351 (7th Cir. 1985),
and United States v. Fountain, 840 F.2d 509 (7th
Cir. 1988).

/2 For reasons explained in our previous opinion, we
deleted the sentencing judge’s 50-year
postponement of Fountain’s parole eligibility.
See Fountain, 840 F.2d at 523.

/3 In his reply brief, counsel for the petitioner-
appellant also suggests that the certificate of
appealability actually certified two broad
issues: (1) "whether Fountain’s counsel failed to
make appropriate objections or motions during
trial"; and (2) "whether Fountain’s counsel
failed to raise on direct appeal the issue of
whether he was denied a fair trial because he was
required to wear leg shackles which the jury was
able to see." Although we understand Counsel’s
zealous desire to advocate all possible arguments
on behalf of his client, his strained reading of
the certificate of appealability is unusual.

/4 The trial judge did not discuss whether the
petitioner was in fact shackled at trial,
possibly because he saw no need to in light of
his finding that "[t]he record indicates that
counsel’s decisions [not to object to his
client’s shackling] did not fall below an
objective standard of reasonableness.
Furthermore, Petitioner has not demonstrated that
the outcome of the trial would have been
different absent these decisions."

/5 When asked at trial if he saw Fountain in the
courtroom today and if he could describe where he
was sitting and what he was wearing, Richard
Sealey responded, "Well, he is sitting on my
left, which is next to you and got a brown tie
on, brown Hush Puppies--well, cream Hush Puppies,
brown pants, and like a looks like a white shirt
to me."

/6 At oral argument, counsel for the government on
appeal and at trial, Assistant United States
Attorney John Vaudreuil, stated that although
Fountain was shackled when he was transported to
and from the courthouse, as we would expect and
as that is the usual practice and procedure when
federal prisoners are in transit, he was never
shackled in court in front of the jury. In fact,
Mr. Vaudreuil stated that in his 20 year career
as an Assistant U.S. Attorney, he is aware of
only one case where a defendant was forced to
wear shackles at trial, and this case is not the
one.

/7 As such, a quite plausible reason why his counsel
never objected to his shackling is that the
petitioner was never shackled in the courtroom in
the presence of the jury.

/8 In fact, despite the petitioner’s suggestions
that his shackles were visible to the jury and
witnesses during trial, witness Larry Vaughn
initially mis-identified one of Fountain’s
attorneys as the defendant. Further, Fountain did
not take the stand in his own defense. But even
if Fountain was required to wear shackles while
seated at the defense table, the government
contends that due to the arrangement of the
tables, counsel, individuals at the tables, as
well as the raised position of the witness chair
in front of the jury box, it was unlikely that
the jury even saw Fountain’s legs during trial.

/9 Indeed, the government asserts that if there was
a "shackle sighting" during the brief bench
conference at the conclusion of trial, it would
be insufficient to satisfy the prejudice prong of
the test.

/10 Fountain did not challenge his conviction on
direct appeal based on the sufficiency of the
evidence.
