                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0377p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                    X
                            Petitioner-Appellant, -
 ANTONIO MENDOZA,
                                                     -
                                                     -
                                                     -
                                                         No. 07-1115
         v.
                                                     ,
                                                      >
 MARY BERGHUIS, Warden,                              -
                            Respondent-Appellee. -
                                                    N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                  No. 05-10029—David M. Lawson, District Judge.
                                        Argued: September 15, 2008
                                  Decided and Filed: October 15, 2008
                Before: GILMAN, KETHLEDGE, and ALARCÓN, Circuit Judges.*
                                             _________________
                                                  COUNSEL
ARGUED: Mary Cole Mertz, SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for Appellant.
Andrew L. Shirvell, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. ON BRIEF: Mary Cole Mertz, SQUIRE, SANDERS & DEMPSEY, Columbus,
Ohio, for Appellant. Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. Antonio Mendoza, Lapeer, Michigan, pro se.
                                             _________________
                                                 OPINION
                                             _________________
        KETHLEDGE, Circuit Judge. Antonio Mendoza appeals the denial of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, after his conviction in Michigan state court of assault
with intent to commit murder, malicious destruction of property, carrying a concealed weapon, and
possession of a firearm during the commission of a felony. During his trial, Mendoza was restrained
in leg shackles that were not visible to the jury. He claims these shackles violated his constitutional
rights because, he says, the jury likely knew he was wearing them. We affirm the district court’s
denial of the writ.



        *
           The Honorable Arthur L. Alarcón, Senior Circuit Judge of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.


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No. 07-1115                      Mendoza v. Berghuis                                          Page 2


                                                 I.
       On August 15, 1998, as Chris Mehney drove home from grocery shopping, Antonio
Mendoza intentionally crashed his vehicle into hers, causing it to run off the road into a ditch.
Mehney escaped from her car and fled from Mendoza on foot. He caught up with her, twice hit her
with the butt of a gun, and then shot her in the face. Mehney again tried to run, but Mendoza shot
her several more times. She survived the attack.
        Mendoza was later apprehended and tried in Michigan state court for the assault. At the
county sheriff’s recommendation, the court determined that Mendoza should wear leg shackles
during trial. According to counsel for the State, the sheriff deemed Mendoza a flight and security
risk based on “a series of incidents” that had occurred during Mendoza’s incarceration. Although
the court acknowledged the sheriff’s recommendation on the record, it did not otherwise cite any
specific basis for its shackling decision.
        The court concealed Mendoza’s shackles from the jury, however, by skirting both counsel
tables with brown paper for the duration of the trial. In addition, the court ordered the deputies
transporting Mendoza to bring him in and out of the courtroom via a “back way” to “make sure that
he is not unduly exposed to the jury.” The court also permitted Mendoza to testify unshackled.
        Mendoza does not allege the jury saw him in leg shackles during trial. He does allege–as
he alleged in the trial court–that, on the fourth day of trial, four jurors briefly observed him in a
hallway wearing both hand and foot shackles as he was transported to the courtroom from jail. His
counsel moved for a mistrial, arguing that even the brief sight of Mendoza in shackles unfairly
prejudiced his defense.
       The trial court denied the motion, noting among other things that Mendoza himself had
already testified that he was in jail:
              We have taken every step. We have both tables are [sic] draped. We
              – when he testified, there was some provision made to allow Mr.
              Mendoza to draw his sketch then to be on the stand without manacles.
              Deputies were present.
              His own statements indicate that he is in the local county
              establishment run by the sheriff’s department and I don’t know what
              the prejudice would be other than the fact that he is lodged. And by
              his statement and by the statement of the expert produced by the
              defense, that is common knowledge before the jury.
The court then offered to consider a curative instruction to the jury, though it is unclear from the
record whether such an instruction was given.
       The jury found Mendoza “guilty but mentally ill” on two counts of assault with intent to
commit murder. The jury also found Mendoza guilty of malicious destruction of property over
$100, carrying a concealed weapon, and possession of a firearm during the commission of a felony.
His numerous attempts to challenge his convictions in the Michigan appellate courts were
unsuccessful.
        Mendoza thereafter filed a habeas petition with the United States District Court for the
Eastern District of Michigan, alleging 16 putative grounds for relief. Among them was that he was
“denied a fair trial in violation of the U.S. Constitution, Amendments V and XIV, when he was
presented to the jury in leg irons, despite the fact that he posed no threat of violence, flight or
disruption to the court[.]”
No. 07-1115                      Mendoza v. Berghuis                                             Page 3


       The district court denied the petition on January 4, 2007. Mendoza filed a notice of appeal
and a motion for certificate of appealability as to his 16 claims for relief. The district court granted
the motion as to the shackling claim, but denied a certificate as to all the others.
                                                  II.
                                                  A.
       We review de novo the district court’s decision to deny the writ of habeas corpus. Ruimveld
v. Mirkett, 404 F.3d 1006, 1010 (6th Cir. 2005). The Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) governs whether the writ may be granted here. AEDPA’s relevant provision
is 28 U.S.C. § 2254(d)(1), which states:
              (d) An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to a judgment of State court shall not be granted with respect to any
      claim that was adjudicated on the merits in a State court unless the adjudication of the
      claim–
               (1) resulted in a decision that was contrary to, or involved an unreasonable
      application of, clearly established federal law, as determined by the Supreme Court
      of the United States[.]
        The “contrary to” and “unreasonable application” clauses in this section have “independent
meaning[.]” Williams v. Taylor, 529 U.S. 362, 404 (2000). For purposes of this section, a state
court’s decision is “contrary to” clearly established federal law when the decision is “substantially
different from the relevant precedent of [the United States Supreme] Court.” Id. at 405. This clause
applies when a state court, in essence, disagrees with the Supreme Court as to either the answer to
a question of law or the result that should obtain under a particular set of facts. See id. at 405-06.
        “Unreasonable application” has been harder to define. The Supreme Court instructs that “a
federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state
court’s application of clearly established federal law was objectively unreasonable.” Id. at 409.
This test requires more than mere error; “a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court decision
applied established federal law erroneously or incorrectly.” Id. at 411. Indeed even “clear error”
in the state court’s application of federal law is not enough. Lockyer v. Andrade, 538 U.S. 63, 75
(2003) (“The gloss of clear error fails to give proper deference to state courts by conflating error
(even clear error) with unreasonableness”).
         What is required, then, is something more than a close question as to how federal law should
have been applied in a particular case. See, e.g., Bell v. Cone, 535 U.S. 685, 702 (2002) (holding,
in a capital case where defense counsel waived summation for fear of a strong rebuttal by the
prosecution, that “we cannot say that the state court’s application of Strickland’s attorney-
performance standard was objectively unreasonable”). What is required, instead, is something more
like an “obvious failure” properly to apply clearly established federal law. Williams, 529 U.S. at 416
(O’Connor, J., concurring).
        Finally, what qualifies as “clearly established law, as determined by the Supreme Court of
the United States,” for purposes of § 2254(d)(1), is itself clear. This phrase refers only “to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Williams, 529 U.S. at 412.
No. 07-1115                       Mendoza v. Berghuis                                            Page 4


                                                   B.
                                                   1.
         Mendoza claims the Michigan state courts erred, to the requisite degree, in holding that his
due-process rights were not violated by the circumstances in which he was shackled at trial. As an
initial matter, we must determine whether Mendoza relies on clearly established law, as determined
by the Supreme Court as of the time of the relevant state-court decisions. Id.
        We conclude that he does. Mendoza relies primarily on the Supreme Court’s decision in
Deck v. Missouri, 544 U.S. 622 (2005). There, on direct review, the Court held that “the Fifth and
Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are justified by a state interest specific to
a particular trial.” Id. at 629.
        Deck came down in May 2005, well after all of the relevant state-court decisions here. That
would normally preclude Mendoza from relying upon the case in seeking habeas relief. But our
court has twice held that the principles underlying Deck were, in fact, clearly established by the
Supreme Court before its decision in Deck. See Lakin v. Stine, 431 F.3d 959, 963 (6th Cir. 2005);
Robinson v. Gundy, 174 F. App’x 886, 893 (6th Cir. 2006) (unpublished). In so holding in each
case, we noted that the Deck Court itself had stated that “‘[t]he law has long forbidden routine use
of visible shackles during the guilt phase’” of a criminal trial. Lakin, 431 F.3d at 963 (quoting Deck,
544 U.S. at 626); Robinson, 174 F. App’x at 893 (same). Per our precedent, therefore, we treat
Deck’s holding, in toto, as if it were clearly established as of the time of the relevant state-court
decisions here.
       The question, then, is whether the Michigan state courts’ decisions with respect to
Mendoza’s shackling were “contrary to” Deck or an “unreasonable application” of it. 28 U.S.C.
§ 2254(d)(1). To answer that question, we must more closely examine Deck itself.
        Carman Deck was convicted of capital murder. A sentencing phase followed, during which
he was shackled, in plain view of the jury, with leg irons, handcuffs, and a belly chain. Deck was
sentenced to death, and the Missouri Supreme Court affirmed. 544 U.S. at 624-25. The United
States Supreme Court vacated the sentence, holding that “the Constitution forbids the use of visible
shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is
justified by an essential state interest–such as the interest in courtroom security–specific to the
defendant on trial.” Id. at 624 (emphasis in original; quotation marks deleted).
        Deck’s facts and holding, therefore, concerned only visible restraints at trial. The Supreme
Court was careful to repeat this limitation throughout its opinion. See id. at 630 (“[v]isible
shackling undermines the presumption of innocence”) (emphasis added); id. at 632 (“[d]ue process
does not permit the use of visible restraints if the trial court has not taken account of the
circumstances of the particular case”) (emphasis added); id. at 633 (“courts cannot routinely place
defendants in shackles or other physical restraints visible to the jury during the penalty phase of a
capital proceeding”); id. at 635 (“[w]here 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”) (emphasis added).
        For at least two reasons, this limitation precludes any determination that the Michigan state
courts acted “contrary to” Deck in Mendoza’s case. 28 U.S.C. § 2254(d)(1). First, the Michigan
courts did not hold that visible shackling, absent the determination of necessity required by Deck,
was permissible. To the contrary, the trial court did everything possible to prevent Mendoza’s
shackles from being visible to the jury. (“We have taken every step.”) The Michigan courts thus
did not “arrive[] at a conclusion opposite to that reached by [the Supreme] Court on a question of
No. 07-1115                      Mendoza v. Berghuis                                            Page 5


law[.]” Williams, 529 U.S. at 413. Second, the facts here are not materially identical to those in
Deck. Carson Deck’s restraints were visible to the jury, whereas Mendoza’s were not. That is a
material difference. Consequently, the Michigan courts, in this case at least, did not “decide[] a case
differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id.
        Nor were the Michigan courts objectively unreasonable in their application of (or, more
precisely, their failure to apply) Deck’s holding here. Mendoza’s argument is that the jury likely
suspected that the brown paper around each counsel’s table was intended to conceal his leg
restraints. Mendoza contends this suspicion would have been enhanced after several jurors observed
him shackled in the courthouse hallway, while he was being transported to the courtroom. He
therefore asserts he was prejudiced to the same extent that he would have been had his shackles been
plainly visible to the jury during trial.
         But the fact remains that Mendoza’s restraints were not visible to the jury during trial. And
the clearly established precedent upon which he relies–namely, Deck–is expressly limited to cases
where the defendant’s shackles are “visible to the jury” during trial. 544 U.S. at 629. Mendoza thus
advocates an extension of Deck, rather than a straightforward application of it. That is not
necessarily fatal to his claim; a state court may apply a precedent unreasonably by refusing to extend
it to facts to which it obviously ought to apply. But the particular limitation that Mendoza seeks to
overleap is one that the Supreme Court emphasized at least six times in Deck. And a limitation thus
emphasized is one the state courts may honor, with relatively little fear of being found “objectively
unreasonable” for doing so.
        Moreover, it is not obvious that Deck should be extended to the particular facts present here.
Mendoza testified unshackled before the jury, which may have rebutted an inference that he was
shackled behind the brown paper. Moreover, that he testified unshackled renders inapposite at least
part of Deck’s rationale, namely, that shackles “can interfere with a defendant’s ability to participate
in his own defense, say, by freely choosing whether to take the witness stand on his own behalf.”
Id. at 630.
         Finally, we do not think it especially significant that, according to Mendoza, several jurors
saw him shackled while he was being transported to the courtroom. Restraining a defendant in the
courtroom, and restraining him during transport there, are two very different things. See, e.g.,
United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991) (“We have distinguished the inherent
prejudice to a defendant who is shackled while in the courtroom from a defendant who has been
observed in shackles for a brief period elsewhere in the courthouse”). As the district court observed,
“[i]t is reasonable for law enforcement officers to transport custodial criminal defendants to and
from courthouses across the country with restraints.” (Emphasis added.) And jurors may well
expect criminal defendants–at least ones charged with the kind of conduct at issue here–to be
restrained during transport to the courtroom. That several jurors may have seen Mendoza shackled
during transport, therefore, would not necessarily suggest to them that he was shackled in the
courtroom as well.
         None of this is to say that Deck obviously should not be extended to these facts. But it is to
say that this case presented the Michigan courts with a close question. And because the question
was close, we are not free to hold that their resolution of it was objectively unreasonable. The
district court was correct to deny habeas relief on this ground.
                                                  2.
        Mendoza’s remaining claim is that hallway-viewing incident–in which several jurors
allegedly observed him shackled during transport–amounted to a stand-alone violation of his
constitutional rights. As Mendoza himself concedes, however, the Supreme Court has not held that
No. 07-1115                     Mendoza v. Berghuis                                          Page 6


a defendant’s constitutional rights are violated when jurors see him shackled during transport to or
from the courtroom. (There is, incidentally, authority from our court to the contrary. See, e.g.,
Moreno, 933 F.2d at 368.) Consequently, the predicate for his claim–“clearly established federal
law, as determined by the Supreme Court of the United States”–is absent here. 28 U.S.C.
§ 2254(d)(1).
                                                III.
       For these reasons, we affirm the district court’s decision.
