                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       March 10, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                TENTH CIRCUIT


 JOHN A. DANIEL,
               Petitioner-Appellant,                      No. 07-8080
          v.                                     (D.C. No. 2:06-CV-280-ABJ)
 ROBERT LAMPERT, Director,                                 (D. Wyo.)
 Wyoming Department of Corrections;
 THE ATTORNEY GENERAL OF
 THE STATE OF WYOMING,
               Respondents-Appellees.


                                       ORDER *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


      Petitioner, a Wyoming state prisoner proceeding pro se, seeks a certificate

of appealability to appeal the district court’s denial of his § 2254 habeas petition.

Petitioner claims that he received ineffective assistance of counsel in his direct

appeal to the Wyoming Supreme Court following his conviction on two counts of

sexual assault and a jury finding that he was a habitual criminal.

      Petitioner was charged with three counts of first degree sexual assault and

one count of kidnapping. He was tried before a jury in July 1999. The court



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
granted his motion for judgment of acquittal on one count of sexual assault. The

jury was unable to reach a verdict on any of the remaining three counts, and the

trial court ultimately declared a mistrial. Petitioner’s second jury trial occurred in

August 1999. The jury convicted him on the two counts of sexual assault but was

unable to reach a verdict on the kidnapping charge. The court declared a mistrial

on the kidnapping charge and accepted the verdict. After hearing evidence of

Petitioner’s prior convictions, the jury deliberated and returned a verdict finding

Petitioner to be a habitual criminal. The court sentenced Petitioner to two

consecutive life sentences.

      Petitioner then filed a notice of appeal. However, his case was not

docketed for approximately two and a half years, mainly due to delays caused by

the court reporter’s failure to provide a complete set of transcripts from both

trials. On appeal Petitioner claimed, inter alia, that this delay deprived him of his

right to a meaningful appeal and that he received ineffective assistance of trial

counsel. Among the thirteen claims of error in counsel’s representation of him at

trial, Petitioner alleged that counsel allowed him to be shackled in the presence of

the jury. Because the trial record contained no information on this claim, the

Wyoming Supreme Court ordered the trial court to conduct a remand hearing to

permit Petitioner to develop the claim.

      At the remand hearing on the issue of shackling, Petitioner testified that he

was wearing ankle restraints during his trial and that on two occasions he was

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brought into the courtroom in leg restraints in the presence of potential jurors or

jury members. The private investigator retained by the public defender’s office

testified that he attended both of Petitioner’s trials and that at one trial Petitioner

was brought into the courtroom wearing leg restraints after the jury had been

seated in the jury box. The investigator could not remember whether this incident

occurred during the first trial or the retrial. The court bailiff from both of

Petitioner’s trials testified that he had been in charge of bringing Petitioner from

the holding cell to the courtroom for trial and that he did not remember any

occasions when any defendant wearing some form of restraints was brought into

the courtroom with the jury present. A jail administrator testified that it was the

trial court’s practice and policy to shackle defendants at trial who had not posted

bond. He also testified that it was court policy to bring defendants into the

courtroom and remove their handcuffs before the jury or prospective jury was

brought in.

      Following the hearing, the trial court found that Petitioner was in leg

restraints during his second trial but he was not shackled in view of the jury and,

had the issue been raised, the court would have found that compelling reasons

justified the use of leg restraints. Petitioner then filed a supplemental brief

arguing that “the practice of noticeably restraining [Petitioner] at jury trial

violates constitutional rights.” (R. Doc. 5-4, at 10.) In his brief, Petitioner stated

that this standard policy violated “the guarantees of due process and equal

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protection” (Id. at 16), but his brief mainly focused on the due process claim.

      The Wyoming Supreme Court held that the trial court abused its discretion

and violated Petitioner’s right to a fair trial under the Sixth and Fourteenth

Amendments when it failed to hold a pretrial hearing on whether shackling for

trial would be appropriate. Daniel v. State, 78 P.3d 205, 212 (Wyo. 2003).

However, the court held this error to be harmless, based on the trial court’s

finding that no direct evidence established the jury heard or saw Petitioner’s

shackles and also given the fact that the jury was unable to reach a verdict on all

counts at the first trial and on the kidnapping count at the second trial. Id. at 213.

The court did not explicitly consider the claim that the court’s standard policy of

shackling indigent defendants itself violated Petitioner’s constitutional rights, but

it rejected Petitioner’s other claims. On the issue of the delay in resolving the

appeal, the court concluded that Petitioner had arguably demonstrated three of the

four factors required under Barker v. Wingo, 407 U.S. 514, 530 (1972), but had

failed to meet the fourth prong of the test by showing prejudice resulting from the

delay. The United States Supreme Court denied a petition for a writ of certiorari

from the Wyoming Supreme Court’s decision, Daniel v. Wyoming, 540 U.S. 1205

(2004), and the state courts denied Petitioner’s subsequent petition for post-

conviction relief.

      In the instant habeas petition, Petitioner claimed that he received

ineffective assistance of appellate counsel. First, he argued that appellate counsel

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should have specifically cited to the private investigator’s testimony at the

remand proceeding that he could no longer remember whether the jury saw

Petitioner shackled at the first trial or second trial as evidence that Petitioner was

prejudiced by the delay in docketing his appeal. Second, he argued that appellate

counsel should have specifically raised an equal protection claim based on the

court’s policy of shackling defendants at trial who had not posted bond.

      The district court concluded that Petitioner had not established ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The

court concluded that Petitioner’s first argument relied heavily on a string of

speculations and presumptions. The court stated that to find ineffective

assistance, it would need to speculate that the investigator would have

remembered the events if the remand hearing had been held earlier and would

have testified that the incident indeed occurred during the second trial. The court

would then need to give greater weight to the investigator’s testimony than to the

bailiff’s contradictory testimony. Finally, the court would need to presume that

the Wyoming Supreme Court would have held that Petitioner was prejudiced by

the incident at his trial. The district court therefore rejected this argument.

      As for Petitioner’s second argument, the district court first concluded that

appellate counsel did raise the equal protection issue on appeal. The court also

noted that the Wyoming Supreme Court found harmless the trial court’s abuse of

discretion in failing to hold a pretrial hearing on the issue of shackling, and

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Petitioner had not convinced the court that the Wyoming Supreme Court would

have analyzed an equal protection error any differently. Moreover, the court

concluded that Petitioner’s equal protection argument would have failed because

defendants who post bond are not similarly situated to defendants who do not post

bond.

        To obtain a certificate of appealability, Petitioner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, Petitioner must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted).

        Petitioner argues that, in rejecting his first argument, the district court

erroneously discussed a series of speculations that it was not required to make and

that had no bearing on the merits of the issue. While it is true that the district

court would not need to itself resolve these speculative issues, these issues are

indeed relevant to the correct inquiry—whether the Wyoming Supreme Court

would have resolved Petitioner’s appeal differently had counsel specifically

raised this issue. In order to conclude that Petitioner was prejudiced by counsel’s

failure to specifically cite to the investigator’s testimony as evidence that he was

prejudiced by the delay, we must conclude that the Wyoming Supreme Court

                                            -6-
would have found that the investigator’s failure to remember whether the jury saw

Petitioner in shackles during the first or second trial constituted sufficient

evidence of prejudice to Petitioner’s appeal to warrant relief. In order to make

this finding, the Wyoming Supreme Court would have needed to speculate

whether the investigator would likely have given testimony that better supported

Petitioner’s claims if the remand hearing had been held earlier and whether the

trial court would likely have found this testimony more credible than the bailiff’s

contrary testimony. The court would then have needed to conclude that

Petitioner’s trial was prejudiced when the jury briefly saw him in shackles while

he was escorted into the courtroom. Given this attenuation, we see nothing

debatably erroneous about the district court’s ultimate conclusion that counsel’s

failure to raise this issue did not amount to constitutionally ineffective assistance.

We also note that counsel brought the investigator’s testimony to the Wyoming

Supreme Court’s attention, although not in the context of the issue regarding

delay, and the court’s opinion shows that it was aware of the investigator’s failure

to remember the date of the incident.

      As to his second claim of ineffective assistance of counsel, Petitioner

argues that the district court erred in concluding that appellate counsel raised the

equal protection claim on appeal. Petitioner does not address the district court’s

additional holding that he had not established prejudice in any event. As the

district court noted, the Wyoming Supreme Court rejected for harmlessness a very

                                          -7-
similar claim alleging that Petitioner’s rights to a fair trial were violated when the

court failed to conduct a pretrial hearing as to whether Petitioner should be

shackled. Like the district court, we see no indication that the Wyoming Supreme

Court would not likewise have found harmless an equal protection claim based on

the court’s policy of shackling defendants who did not post bond.

      We have carefully reviewed Petitioner’s brief, the district court’s

disposition, and the record on appeal. Nothing in these materials convinces us

that reasonable jurists could debate whether the district court’s rulings were

correct. We therefore DENY Petitioner’s request for a certificate of appealability

and DISMISS the appeal.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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