                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 8 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    GARY CAPSHAW,

                Petitioner-Appellant,

    v.                                                    No. 03-8046
                                                    (D.C. No. 02-CV-142-B)
    SCOTT ABBOTT, Warden, Wyoming                          (D. Wyo.)
    State Penitentiary; ATTORNEY
    GENERAL OF THE STATE OF
    WYOMING,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , HENRY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Gary G. Capshaw appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition. Capshaw was convicted of two counts of possession of a

controlled substance with intent to deliver, and one count each of possession of a

controlled substance in an amount exceeding three grams and conspiracy to

deliver a controlled substance in violation of Wyoming Statutes §§ 35-7-1031 and

35-7-1042. His conviction was affirmed on appeal to the Wyoming Supreme

Court. Capshaw v. State , 10 P.3d 560 (Wyo. 2000).

      Capshaw filed a petition for state post-conviction relief; all claims in the

petition were ultimately dismissed. Capshaw then filed his federal § 2254 habeas

petition. The district court denied relief, but granted a certificate of appealability

on the issue of: “whether the District Court for the Seventh Judicial District

abused its discretion by delegating its decision to shackle Petitioner to the

Natrona County Sheriff’s Department.” Aplt. App. at 142. We have jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253(a) and we affirm.

                                           I

      Because the district court’s order gives a thorough and detailed recitation

of the facts, we will only set forth a brief background of the case. When Capshaw

initially sought post-conviction relief, the state district court dismissed the

petition. The Wyoming Supreme Court affirmed the dismissal on all claims, with

the exception of Capshaw’s claim that his due process rights were violated when


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he was shackled throughout his jury trial. The Wyoming Supreme Court reversed

the state district court decision on that issue and remanded for further

proceedings.

       On remand, the state district court conducted an evidentiary hearing to

determine if Capshaw had been unconstitutionally shackled during trial. At the

hearing, Capshaw called a former juror to testify about Capshaw’s appearance

during the trial. The witness testified that he remembered Capshaw appearing in

street clothes. Aplt. App. at 218. The state presented evidence regarding

Capshaw’s escape during his initial appearance in the case and his conviction for

that escape. Id. at 222-230.

       After the hearing, the court entered an order denying relief and made

findings, including the following: 1) given Capshaw’s previous escape from

custody, his criminal history, and his status as a “high risk inmate,” compelling

reasons existed to justify the use of shackles during trial; 2) Capshaw failed to

establish a violation of a constitutional right because there was no showing that

he was viewed by the jury in shackles during the trial, and there was no showing

of prejudice as a result of the use of the shackles.   Id. at 206-07 ¶¶ 13, 17.

       Capshaw petitioned for review to the Wyoming Supreme Court. That court

denied the petition, affirming the findings of the state district court because

“there are a significant number of cases that find that shackling was justified as a


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result of a prior escape” and “this is not a case where the evidence shows that

jurors actually observed the shackles during trial[;] . . . [i]nstead, this is a case

where the materials do not establish that any jurors observed petitioner in

shackles to his prejudice.”   Id. at 208 (citation omitted).

       In response to Capshaw’s federal habeas petition, the district court found

that the state court’s determination that Capshaw should be shackled because he

was an escape risk was neither contrary to, nor an unreasonable application of,

clearly established federal law. Capshaw also argued that the state district court

was required to hold a hearing on the record before trial began and state its

findings for the necessity of shackling. The district court noted that Capshaw

never objected to being shackled before or during trial, and, as a result, no

findings were made on the record regarding whether it was necessary to shackle

Capshaw during trial. The district court concluded that although some federal

circuit courts of appeal have expressed a policy that federal district courts should

make findings of fact to justify shackling, the Supreme Court has never held that

this preference is required by the Constitution.

                                            II

       In order to be entitled to habeas relief, Capshaw must demonstrate that the

state court’s decision was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the


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United States,” or was “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1) & (2). Further, state court findings are presumed to be correct

unless the petitioner rebuts this presumption by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

      On appeal, Capshaw argues that clearly established federal law requires the

trial court to make explicit findings on the record to justify shackling a defendant.

Second, he argues that because the trial court effectively delegated the shackling

decision to the Sheriff’s Department, instead of exercising its own discretion, the

Wyoming Supreme Court’s determination that shackling was justified by a prior

escape was based on an unreasonable determination of the facts and an

unreasonable application of controlling federal precedent.

      Our review of the appellate briefs, the record, and the applicable law, lead

us to conclude that, for substantially the reasons stated in the district court’s

April 3, 2003 order, Capshaw has not established his entitlement to habeas relief.

See 28 U.S.C. § 2254(d)(1) & (2). The judgment of the district court is

AFFIRMED.

                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge

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