In the
United States Court of Appeals
For the Seventh Circuit

Nos. 01-1664 & 01-1665

Charles Roche, Jr.,

Petitioner-Appellee,
Cross-Appellant,

v.

Cecil Davis, Warden, Indiana State Prison,

Respondent-Appellant,
Cross-Appellee.

Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 C 347--Allen Sharp, Judge.

Argued January 29, 2002--Decided May 28, 2002



  Before Coffey, Kanne, and Rovner, Circuit
Judges.

  Kanne, Circuit Judge. A Lake County,
Indiana jury found petitioner Charles
Roche, Jr. guilty of murder, and the
trial judge sentenced him to death. After
exhausting his state court remedies,
Roche filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. sec. 2254.
The district court granted the habeas
petition and ordered Roche to be
sentenced to life without parole. We
affirm the grant of habeas corpus, but
vacate the disposition and remand to the
district court to return the case to
state court for re-sentencing.


I.   History

A.   Background

  On May 11, 1990, the bodies of Ernest
"Pee Wee" Graves and Daniel Brown were
found near Gary, Indiana. The police soon
determined that the two men had been
victims of a homicide. On May 16, 1990,
an information was filed against Roche in
the Lake County Superior Court, charging
him with two counts of murder and two
counts of felony murder pursuant to Ind.
Code sec. 35-42-1-1/1 and seeking the
death penalty. Edward Niksich and Roche’s
father, Charles Roche, Sr., were both
joined as defendants, although the State
did not seek the death penalty against
Roche, Sr. On May 21, 1990, Noah Holcomb
was appointed as Roche’s counsel.
Thereafter, both Niksich and Roche, Sr.
moved for severance. The court granted
Roche, Sr.’s motion, but denied
Niksich’s, thereby leaving Niksich and
Roche to be tried jointly. Additionally,
Niksich moved to suppress the fruits of
the search of his home, which the court
granted. Niksich also filed a motion in
limine, seeking to exclude evidence
concerning a robbery in which Niksich had
previously been involved. Roche’s counsel
did not attend any of the severance
hearings or the hearings on Niksich’s
motion to suppress or motion in limine.

B.   The Trial

  During most of the joint trial of Roche
and Niksich, Roche wore shackles on his
legs while he sat at counsel’s table and
when he took the stand to testify. The
following evidence was adduced against
Roche at trial: In early 1990, Niksich
told his girlfriend, Patricia Andrasco,
that Graves had stolen $120 worth of food
stamps from Andrasco’s car. Several weeks
later, the woman who babysat Andrasco’s
children overheard a conversation between
Roche and Niksich, and one of the men
stated that Graves and Brown needed to be
killed.

  On May 10, 1990, Roche and Niksich went
to the Spot Bar in Calumet City, Illinois
and induced Graves and Brown to come to
Roche’s house by concocting a phony drug
deal. Once there, Roche and Niksich took
Graves and Brown into the basement of the
house. Roche then went upstairs into his
bedroom and told his girlfriend Delores
Duszynski "to stay put" because "he had
some guys downstairs that he was going to
shoot because [they] owed somebody $120."
Duszynski testified that several minutes
later, she heard about nine or ten
gunshots coming from the basement. She
then heard someone pleading for his life,
begging "please don’t kill me, please
don’t kill me, just take my money, but
please don’t kill me." Duszynski then
heard several more gunshots, and a few
minutes later, Roche, Niksich, and Roche,
Sr. came into the bedroom. Roche told her
that all the two men had on them was $19
and a dime bag of cocaine. Roche then cut
up some lines of cocaine on the dresser
in the bedroom, and she, Roche, and
Niksich each snorted a line. Roche,
Niksich, and Roche, Sr. then loaded the
two bodies into the trunk of Duszynski’s
car and drove off.

  The three men then saw Jose Sanchez
walking down the street and offered to
give him a ride home. Sanchez testified
that when he got into the car he saw
blood on Roche, Sr.’s shirt. When the
group arrived at Sanchez’s house, they
got out of the car and Roche opened the
trunk, inside of which Sanchez saw two
bloody bodies. The group then went inside
of Sanchez’s house, and Roche, Sr.
immediately went into the bathroom and
came out wearing a different shirt than
he was wearing before. Next, the group
gathered in Sanchez’s living room, and
Niksich exclaimed that he had shot one of
the victims in the head in the basement
of Roche’s house and had taken his
wallet. Roche then exclaimed that he had
shot the other victim once in the chest,
once in the stomach, and once in the
head. Roche said that the victim was
still alive and had begged for his life,
but that Roche went upstairs, got a
rifle, and went back into the basement
and "kept on shooting him in the head."
Sanchez testified that Roche told him
that he used a .38 caliber gun and a .22
caliber rifle to kill one of the victims.

  On May 11, 1990, there was an article in
a local newspaper concerning Graves’ and
Brown’s deaths./2 The article stated
that two dead bodies had been found at
the intersection of 9th Avenue and Cline
Avenue near Gary in the early morning
hours of May 11. The article also claimed
that the police believed that the two
dead men were victims of homicides and
that there were no suspects at that time.
Roche cut the article out of the
newspaper and Duszynski put the article
into a folder to save as a keepsake.
Furthermore, Roche boasted about his
involvement in Graves’ and Brown’s deaths
on several occasions. For example, on May
12, 1990, he told his neighbor Larry
Milligan, "I shot one and Eddie [Niksich]
shot one." Also, at a party that Roche
hosted on May 13, he told another
neighbor, James Superits, that he and
Niksich had shot two men in Roche’s
basement a few days earlier. He showed
Superits the newspaper article and
brought him down to the basement to show
him where he and Niksich had shot Graves
and Brown. In addition, Roche sold
Superits a .38 caliber Derringer handgun,
which Superits later gave to the police,
and which the State entered into
evidence.

  On May 13, Sanchez went to the Hammond
police station and informed them of his
knowledge regarding the deaths of Brown
and Graves, pointing the finger at Roche,
Niksich, and Roche, Sr. Niksich, Roche,
Sr., Duszynski, and Milligan were
arrested several days later, although
Roche remained at large. On May 16, Roche
turned himself in to Russ Ewing, a
Chicago television reporter, and Ewing’s
crew filmed Roche admitting that he shot
two men in his basement. Ewing then took
Roche to the Gary Police Department,
where Roche gave a statement to the
police, claiming that he "unloaded
seventeen shots with a .22 rifle into the
bodies of the two men." Roche confessed
to his involvement in Graves’ and Brown’s
deaths a fifth time on July 10, 1990,
while being detained at the Lake County
Jail. He told corrections officer
Virginia Ratajczak that on May 10, he
brought Graves and Brown into the
basement of his house, that they had
pleaded for their lives, and that he had
shot them both to death. The State
entered into evidence a redacted series
of notes that Roche and another detainee
passed back and forth while both were
detained at the Lake County Jail. The
redacted notes stated as follows:

Detainee: Roche, how do you deal with it,
man, now that the prosecutor has filed
the death request on you, don’t it even
bother you?

Roche: That shit don’t move me. That’s
their way of trying to bluff someone into
a cop-out, but I know they ain’t got the
balls to go through with it. They’re
faking at it, dude. They [have to prove]
I did it in cold blood, plus they can’t
prove I took their money.

Detainee: Man, you just don’t seem like
the type to kill people for no reason or
just in cold blood. From what I know of
you, you just don’t seem that kind.

Roche: Well, that’s the whole idea behind
my innocent smile. As long as a person
doesn’t think one is capable of it or
don’t look like the type, they can lure a
person anywhere and smile them to their
grave. Ha, my regret is turning myself
in. I should of shot it out with the pigs
and killed some of them. Plus, I should
have killed my old lady that night and
the Mexican. It’s too late for the should
of’s and could of’s. I’ve just got to
beat this shit now.

  Further, the State entered evidence
concerning the investigation of Graves’
and Brown’s deaths. Security guard
Randall Bowman testified that in the
early-morning hours of May 11, he saw two
bodies lying in the roadway at the
intersection of 9th Avenue and the Cline
Avenue service road. He stated that he
returned to his office and called the
police. Lake County Sheriff’s Department
evidence technician Ronald Lach testified
that he arrived at the scene at
approximately 12:30 a.m. on May 11. He
photographed the bodies, collected a
cigarette butt at the scene, and noted
the absence of any identification on the
bodies. Finally, he transported the
bodies to the Guy and Allen Funeral Home,
where the autopsies were conducted.
  Dr. Young Kim, a pathologist for the
Lake County Coroner’s Office, performed
the autopsies on Graves and Brown. Dr.
Kim testified that he found six gunshot
wounds on Brown’s body--one on the left
side of his chest, one on the left side
of his head, and four on the right side
of his face. Dr. Kim testified that Brown
had died as a result of extensive
fracturing of his skull and laceration of
his brain due to gunshot wounds. He
testified that he observed seven gunshot
wounds on Graves’ body--one on the upper
right side of his chest, one on the right
side of his chest, one of the left side
of his back, one on the left side of his
head, one on the right side of his face,
one behind his ear, and one on the left
side of his face. Dr. Kim stated that he
determined that Graves had died as a
result of gunshot wounds that caused a
perforal injury of his right lung and a
perforation of his brain. Finally, Dr.
Kim testified that he recovered three
bullets from Brown’s body and five
bullets from Graves’ body.

  Firearms expert Jay Gauthier testified
that of the three bullets recovered from
Brown’s body, two were .38 caliber
bullets fired from the gun that Roche had
sold to Superits, and the other was a .22
caliber bullet. He also testified that of
the five bullets recovered from Graves’
body, four were .38 caliber bullets fired
from the gun that Roche had sold to
Superits and one was a .25 caliber
bullet.

  After the State entered the evidence
detailed above, Roche took the stand in
his own defense and testified to the
following: On May 10, 1990, Niksich asked
him to obtain some cocaine, and in
response, he called Sanchez to arrange to
purchase some. Sanchez told him that he
would deliver the cocaine to him by 10:30
p.m. that evening. In turn, Roche told
Niksich to arrange for the buyers to be
in the basement of Roche’s house by 11:00
p.m. Roche and his father then went to a
local bar, where Roche became
intoxicated. Roche and his father met
Niksich at Roche’s house around 10:30
p.m. Roche, Sr. and Niksich then left the
house to go purchase some beer, and while
they were gone, Roche heard some noises
in the basement. He retrieved his .38
caliber Derringer and his .25 caliber
automatic handgun and went down to the
basement to investigate. Once in the
basement, Roche found two men standing in
the utility room. One of the men pointed
a gun at him and told Roche to give him
the cocaine. The second individual told
the gunman to shoot Roche. Roche told the
two men that he would go and get the
cocaine, but instead he pulled his own
gun and fired at the gunman, shooting him
in the chest. He then shot the other man
in the face. The gunman then pointed his
gun at Roche again, so Roche shot him
several times with his .25 automatic
handgun. Shortly thereafter, Niksich,
Roche, Sr., and Sanchez entered the
basement and agreed to assist Roche in
disposing of the bodies.


  C.   Penalty Phase

  The jury found Roche and Niksich each
guilty of two counts of murder and of two
counts of "Murder in the Perpetration of
a Robbery." A sentencing hearing was then
held for both defendants, during which
the State sought the death penalty
against both Roche and Niksich. The
Indiana Code provided that the State
could seek the death penalty against
Roche if it proved at least one of the
following aggravating circumstances
beyond a reasonable doubt: "[t]he
defendant committed the murder[s] by
intentionally killing the victim[s] while
committing or attempting to commit . . .
robbery [or] [t]he defendant has been
convicted of another murder." Ind. Code
sec.sec. 35-50-2-9(b)(1)(G) & (b)(7)
(1990). Further, the Indiana death
penalty statute also provided that Roche
could present evidence pertaining to any
potential mitigating circumstances. See
id. at sec. 35-50-2-9(c). The statute
provided that the jury could recommend
the death penalty, see id. at sec. 35-50-
2-9(e), only after it had found that: 1)
the state had proved beyond a reasonable
doubt that at least one of the
aggravating circumstances existed and 2)
any mitigating circumstances that existed
were outweighed by the aggravating
circumstance(s). See id. at sec. 35-50-2-
9(k). The court instructed the jury
accordingly. The judge would then make
the final determination about the
appropriate sentence after considering
the jury’s recommendation and the
standards elucidated in Ind. Code sec. 35-
50-2-9(k). See id. at sec. 35-50-2-9(e).

  With regard to Roche’s sentencing
hearing, the State entered the Pre-
Sentence Report ("PSR") into evidence,
which indicated the following: Roche had
attained a ninth- grade education and had
pled guilty to burglary in 1982 and was
incarcerated for about six years as a
result. Roche had one child, Crystall
Lynn McDaniel, who was five and a half
months old, and Roche helped support his
daughter financially. Roche’s parents
divorced when he was very young and he
lived with his paternal grandparents from
age three to age seven, while his father
was incarcerated. After his father was
released from prison, Roche lived with
Roche, Sr. and his stepmother, who moved
around a lot. As a result, Roche
frequently changed schools. Further,
Roche did not sleep much as a child
because his father would "take him places
to rip off for money." Roche spent a
considerable amount of his childhood in
foster homes and with other relatives
because his father was in and out of
prison. Further, Roche had received
psychiatric treatment when he was twelve
years old. Finally, the PSR stated that
Roche had said that he had never been
addicted to any illegal drugs and that he
used marijuana and alcohol daily and
snorted cocaine occasionally.

  Roche’s mother testified that when
Roche, Sr. went to prison (and Roche was
about three years old), she accepted an
offer from Roche’s paternal grandparents
to allow Roche to live with them. In
exchange, the grandparents agreed to pay
for her divorce from Roche, Sr. She
testified that although she has had very
little contact with Roche in the last
twenty years, she promised that in the
future, she would be much more involved
in his life. Roche’s sister testified
that Roche had told her that he was "very
sorry for what had happened [with Graves
and Brown]."

  After eight hours of deliberation, the
jury indicated to the court that it had
reached a recommendation with respect to
one of the defendants, but that it had
not with respect to the other. Each juror
stated to the court that further
deliberations would not result in the
jury being able to reach a recommendation
with respect to the second defendant. The
jury then told the court that it
recommended that the death penalty not be
imposed on Niksich, but that it was
unable to reach a recommendation with
respect to Roche. The court, with
counsel’s approval, then discharged the
jury. Thereafter, the court sentenced
Niksich to 80 years imprisonment and
sentenced Roche to death. In sentencing
Roche to death, the court found that
"[a]lthough there were three (3)
defendants involved in these killings,
the evidence showed that [Roche] was by
far the most culpable and is deserving of
the death penalty."

D.   Procedural History

  After the Indiana Supreme Court affirmed
Roche’s conviction and sentence on direct
appeal, Roche filed a petition for post-
conviction relief in the Lake Superior
Court. At the post-conviction hearing
held on October 30, 1995, Roche presented
testimony regarding his shackling during
the trial and at the sentencing hearing.
Walter Murray, one of the bailiffs during
Roche’s trial, testified that at some
point after the trial had started, he
placed leg cuffs on Roche, but not on
Niksich. Murray testified that he did not
recall placing a drape over Roche’s legs
to prevent the jury from seeing the leg
cuffs. He further testified that "with
the judge’s permission we left the leg
irons on during the trial because we
thought [Roche] was an escape risk."
Paula Niksich, Edward Niksich’s mother,
testified that she could see Roche’s
shackles during trial and that she did
not see a drape that covered the
shackles. Finally, a trial witness,
Patricia Andrasco, testified that she
could see Roche’s shackles from the
witness box when she testified.

  Ultimately, the trial court denied
Roche’s petition for post-conviction
relief. Roche’s counsel appealed the
denial of the petition to the Indiana
Supreme Court, which affirmed. See Roche
v. State, 690 N.E.2d 1115 (1997).
Subsequently, Roche filed a petition for
writ of habeas corpus in federal district
court, and the district court found that
Roche’s shackling claim warranted habeas
relief. See Roche v. Anderson, 132 F.
Supp.2d 688, 709 (N.D. Ind. 2001).
However, it held that "[r]ather than
require that Roche be retried, when it is
clear from his subsequent conduct that
Roche is in fact an escape risk and would
most likely be retried in shackles,
albeit with an explanation on the record,
this court will order Roche sentenced to
life without parole." Id. (citation
omitted).

  On appeal, the state of Indiana argues
that the district court improperly
granted relief on Roche’s shackling
claim. On the other hand, Roche cross-
appeals, arguing among other things that
we should grant him a new trial because
his counsel was ineffective for
permitting him to be tried before the
jury in shackles. Additionally, Roche
claims that in granting habeas relief,
the district court erred in re-sentencing
him to life without parole.

II.   Standard of Review

  Roche filed his habeas petition after
the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. 104-132, 110 Stat.
1214 (1996) (codified at 28 U.S.C. sec.
2254). Therefore, the provisions of AEDPA
govern our review. See, e.g., Lindh v.
Murphey, 521 U.S. 320, 336, 117 S. Ct.
2059, 138 L. Ed. 2d 481 (1997). AEDPA
provides that if a constitutional claim
was adjudicated on the merits by the
state courts, a federal court may only
grant habeas relief based on that claim
if the state court’s decision was
"contrary to" or an "unreasonable
application of" federal law as determined
by the Supreme Court of the United
States./3 28 U.S.C. sec. 2254(d).

  In Williams v. Taylor, 529 U.S. 362,
405-06, 120 S. Ct. 1495, 146 L. Ed. 2d
389 (2000), the Supreme Court stated that
a state court’s decision is "contrary to"
established Supreme Court precedent when
1) the state court applies a rule that
contradicts the governing law set forth
in Supreme Court cases or 2) the state
court confronts a set of facts that is
materially indistinguishable from those
of a decision of the Supreme Court and
nevertheless arrives at a decision
different from that reached by the
Supreme Court precedent. In the present
case, the Indiana Supreme Court correctly
applied Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984) as the controlling precedent
for Roche’s ineffective assistance of
counsel claims, see Roche, 690 N.E.2d at
1120, and "Strickland undoubtedly
qualifies as ’clearly established Federal
law, as determined by the Supreme Court
of the United States,’ within the meaning
of [AEDPA]." Williams, 529 U.S. at 413.
Further, the Supreme Court has never
addressed facts that are materially
indistinguishable from those in this
case. Therefore, because the Indiana
Supreme Court’s decision was not
"contrary to" established federal law,
Roche is not entitled to habeas relief on
this ground.

  Nevertheless, we must determine whether
the Indiana Supreme Court’s conclusions
with respect to Roche’s ineffective
assistance of counsel claims resulted
from "an unreasonable application of"
Strickland. See Williams, 529 U.S. at
411. In doing so, we must keep in mind
that we may not issue a writ of habeas
corpus "simply because [we] conclude[ ] .
. . that the relevant state-court
decision applied [Strickland] erroneously
or incorrectly. Rather, that application
must also be unreasonable." Id. A
defendant who claims that his counsel’s
assistance was so defective as to warrant
a reversal must establish two components:
1) that his counsel’s performance fell
below an objective standard of
reasonableness and 2) that he was
prejudiced by the deficient performance.
See Strickland, 466 U.S. at 687-88. A
failure to establish either prong results
in a denial of the ineffective assistance
of counsel claim. See Hough v. Anderson,
272 F.3d 878, 890 (7th Cir. 2001).
Prejudice occurs when there is a
"reasonable probability" that but for
counsel’s deficient performance, the
result of the proceeding would have been
different. Strickland, 466 U.S. at 694. A
"reasonable probability is a probability
sufficient to undermine confidence in the
outcome." Id.

III.   Analysis

A.   Procedural Default

  As an initial matter, the state contends
that Roche has procedurally defaulted his
claim that trial counsel was ineffective
with respect to his shackling during
trial because this claim was not raised
on direct appeal. However, the Indiana
Supreme Court adjudicated Roche’s
shackling claim on the merits, noting
that Roche’s appellate counsel was the
same person that represented him at
trial. See Roche, 690 N.E.2d at 1122-23.
Thus, we are not barred from reaching the
merits of this claim because "[i]f the
last state court to be presented with a
particular federal claim reaches the
merits, it removes any bar to federal-
court review that might otherwise have
been available." Ylst v. Nunnemaker, 501
U.S. 797, 801, 111 S. Ct. 2590, 115 L.
Ed. 2d 706 (1991).


  B.   Shackling

  With regard to the merits, Roche argues
that he should receive a new trial
because his counsel was ineffective for
not objecting to him being shackled
during trial and then for not taking
precautions to ensure that the jury could
not see the shackles. In addition, the
state appeals the district court’s
decision that Roche’s shackling
prejudiced him during his initial
sentencing hearing.

  The jurisprudence regarding the effects
of shackling merits a brief discussion.
In Illinois v. Allen, 397 U.S. 337, 343-
44, 90 S. Ct. 1057, 25 L. Ed. 2d 353
(1970), the Supreme Court first addressed
the issue of shackling and held that
"there are at least three
constitutionally permissible ways for a
trial judge to handle an obstreperous
defendant . . . : (1) bind and gag him,
thereby keeping him present; (2) cite him
for contempt; (3) take him out of the
courtroom until he promises to conduct
himself properly." In addition, the
Supreme Court explained that "no person
should be tried while shackled and gagged
except as a last resort." Id. at 344.
Building on Allen, the Supreme Court in
Holbrook v. Flynn, 475 U.S. 560, 568-69,
106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986),
considered the issue of "whether the
conspicuous, or at least noticeable,
deployment of security personnel in a
courtroom during trial is the sort of
inherently prejudicial practice that,
like shackling, should be permitted only
where justified by an essential state
interest specific to each trial." The
Court held that it was not, but set forth
the standard for analyzing inherently
prejudicial practices such as shackling.
See id. at 569-70. The Court stated that
"[w]henever 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." Id. at 570 (quotation omitted).
Consistent with Allen and Holbrook, this
court has held that "[a]s a general rule,
a defendant in a criminal case has the
right to appear before the jury free from
shackles or other physical restraints."
Harrell v. Israel, 672 F.2d 632, 635 (7th
Cir. 1982). We have stated 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." Id. at 637.
Thus, when the defendant was shackled at
trial, the key issues are whether the
jury "was aware of" the shackles or
whether the shackles "were readily
visible." Fountain v. United States, 211
F.3d 429, 435 (7th Cir. 2000).

  Because Roche raised his shackling claim
in the context of ineffective assistance
of counsel, in order to prevail on this
claim, Roche 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, 466
U.S. at 687-88. There is no real question
that Roche was in fact required to wear
shackles during the guilt and penalty
phases of his trial. However, the sole
mention of this fact on the trial record
is when immediately before Roche was to
take the stand, his counsel requested,
outside of the presence of the jury, that
he would "like to have [Roche] seated at
the witness chair before the jury comes
in so they don’t see his braces." We do
not know why this is the first and only
mention of Roche’s shackling--the record
is devoid of any of the facts that gave
rise to the decision to shackle him. At
the very least, this omission reveals the
fact that his trial counsel made no
record of any objection to Roche’s
shackling.

  The Indiana Supreme Court held that
counsel’s failure to object to Roche’s
shackling did not constitute deficient
performance because he was "careful about
preventing the jury from seeing his
client’s ankle restraints [when Roche
took the stand to testify]." Roche, 690
N.E.2d at 1123. The district court held
that this was an "unreasonable
application of" Strickland, stating that
"Roche’s counsel’s failure to object on
the record to the use of shackles is a
clear example of deficient performance."
Roche, 132 F. Supp.2d at 704. At the
post-conviction hearing, a bailiff’s
testimony indicated that there was no
drape covering Roche’s shackles. Further,
a witness recounted that during her
testimony at trial, she could see Roche’s
shackles from the witness box. Most
importantly, the jury box was directly
next to the witness box, and therefore,
Roche’s shackles were "readily visible"
to the jury. Fountain, 211 F.3d at 435.

  Thus, not only did counsel fail to
object to Roche’s shackling, he also
failed to ensure that Roche’s shackles
would not be visible to the jury while
Roche was sitting at counsel’s table
during the entire trial. Accordingly, the
issue that we are presented with is
whether counsel’s failure to object to
Roche’s shackling plus his failure to
ensure that the jury could not see the
shackles constituted deficient
performance. Cf. Harrell, 672 F.2d at
636-37 (drawing a distinction between
cases where jury was "aware of" shackles
because no precautions were taken and
cases where precautions were taken to
conceal shackles from jury).

  While the Indiana Supreme Court
considered counsel’s efforts to ensure
that the jury would not see
Roche’sshackles when Roche testified,
counsel’s failure to do so while Roche
was sitting at counsel’s table during
trial and during the sentencing hearing
was not addressed. Therefore, given that
the key inquiry in shackling cases is
whether the shackles were "readily
visible" to the jury, Fountain, 211 F.3d
at 435, we hold that in this case, the
Indiana Supreme Court’s determination
that counsel was not deficient was
unreasonable.

  Nevertheless, with respect to the guilt
phase, Roche cannot establish that but
for his counsel’s deficient performance,
the outcome of his trial would have been
different. See Strickland, 466 U.S. at
694. In Fountain, we held that "in light
of the substantial evidence of [the
petitioner’s] guilt posited at trial,"
the petitioner could not show that he was
prejudiced by "his counsel’s failure to
object to . . . the jury’s observation of
his shackles." 211 F.3d at 436. We held:

All of the events leading up to [the
petitioner’s] involvement in the murder .
. . from the pre-murder planning, to the
murder itself and the post-murder
admissions, were established and
corroborated by witness testimony and
physical evidence. Thus . . .
[petitioner] has failed to establish that
he was prejudiced by the allegedly
defective assistance of counsel.

Id. (footnote omitted). In our case, the
evidence showed that Roche planned the
homicides with Niksich and told Duszynski
that "he had some guys downstairs that he
was going to shoot because [they] owed
somebody $120." Further, on numerous
occasions, Roche bragged to his friends
that he had killed Graves and Brown and
cut out a newspaper article discussing
the homicides. Finally, he confessed his
involvement in the homicides on a
television news broadcast, to the police,
and to a corrections officer. Thus,
because of the overwhelming evidence of
Roche’s guilt, we cannot say that there
was a "reasonable probability" that but
for counsel’s deficient performance, the
result of the guilt phase of his trial
would have been different. Strickland,
466 U.S. at 694.

  However, we cannot reach the same
conclusion with respect to the outcome of
the penalty phase. During the sentencing
hearing, there was considerable evidence
concerning the mitigating circumstances
to be considered under Ind. Code sec. 35-
50-2-9(c). For example, the PSR indicated
the circumstances of Roche’s troubled
childhood and alcohol and drug problems,
Roche’s criminal history was relatively
minor, and Roche’s family members
testified about Roche’s remorse and about
their improved relations with him. In
fact, after eight hours of deliberation,
the jury was unable to recommend the
death penalty for Roche. While not
second-guessing the trial judge’s
determination on this issue, we note that
whether the aggravating circumstances
outweighed the mitigating circumstances
in this case was apparently a closer call
than whether there was sufficient
evidence of Roche’s guilt during the
guilt phase. Moreover, given the extreme
inherent prejudice associated with
shackling, see, e.g., Harrell, 672 F.3d
at 637, and the considerable mitigating
evidence, we agree with the district
court and conclude that Roche has
established that there was a "reasonable
probability" that but for his counsel’s
deficient performance, the result of his
sentencing hearing would have been
different. Strickland, 466 U.S. at 694.

  In granting Roche’s habeas petition, the
district court held that it would "order
Roche sentenced to life without parole."
Roche, 132 F. Supp.2d at 704. However, at
the time of Roche’s offense, a sentence
of life without parole was not an option
under Indiana law, and the subsequently
enacted life without parole statute
cannot be applied retroactively. See
Alcorn v. State, 638 N.E.2d 1242, 1244-45
(Ind. 1994) (stating that life without
parole provision only applies to murders
committed after June 30, 1993).
Therefore, although we affirm the
district court’s grant of Roche’s habeas
petition, we vacate its order for
modification of his sentence and remand
for the issuance of an order returning
the case to state court and directing
that Roche receive a new sentencing
hearing. Roche’s other arguments on
appeal for why he should receive a new
trial are without merit and warrant no
discussion. Further, because we are
ordering that Roche receive a new
sentencing hearing, we need not address
his argument that he received ineffective
assistance of counsel during his initial
sentencing hearing.

III.   Conclusion

  The district court’s grant of habeas
corpus is Affirmed; the disposition of
resentencing by the district court is
Vacated; and the case is Remanded to the
district court for return to the Indiana
state court for resentencing.

FOOTNOTES

/* Cecil Davis, Superintendent, has been substituted
as appellant for Rondle Anderson, pursuant to
Fed. R. App. P. 43(c).

/1 The Indiana Code provides that a "person who
knowingly or intentionally kills another human
being commits murder, a felony." Ind. Code sec.
35-42-1-1(1). Further, it provides that a "person
who . . . kills another human being while commit-
ting or attempting to commit . . . robbery . . .
commits murder, a felony." Id. at sec. 35-42-1-
1(2). In turn, the Indiana Code provides that a
"person who knowingly or intentionally takes
property from another person . . . by using or
threatening the use of force on any person . . .
commits robbery." Id. at sec. 35-42-5-1.

/2 The record does not identify in which newspaper
this article appeared.

/3 AEDPA also allows habeas relief when the state
court’s determination of the facts was unreason-
able in light of the evidence presented. 28
U.S.C. sec. 2254(d). However, Roche has not
raised such a claim so we need not consider this
prong of the statute.
