                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0429p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                                                 -
 ERIK EARHART,
                                                 -
                               Petitioner-Appellant,
                                                 -
                                                 -
                                                      No. 07-4127
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 KHELLEH KONTEH,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Cincinnati.
               No. 06-00062—Herman J. Weber, District Judge.
                                     Argued: June 16, 2009
                           Decided and Filed: December 18, 2009
                                                                                       *
             Before: MOORE, GIBBONS, and FRIEDMAN, Circuit Judges.

                                      _________________

                                           COUNSEL
ARGUED: Molly S. Crabtree, PORTER WRIGHT MORRIS & ARTHUR LLP,
Columbus, Ohio, for Appellant. Gene D. Park, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Molly S. Crabtree, James B.
Hadden, PORTER WRIGHT MORRIS & ARTHUR LLP, Columbus, Ohio, for
Appellant. Gene D. Park, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
       GIBBONS, J., delivered the opinion of the court, in which FRIEDMAN, J.,
joined. MOORE, J. (pp. 19-20), delivered a separate opinion dissenting in part.




        *
          The Honorable Daniel M. Friedman, Senior Circuit Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.


                                                  1
No. 07-4127            Earhart v. Konteh                                                          Page 2


                                        _________________

                                              OPINION
                                        _________________

         JULIA SMITH GIBBONS, Circuit Judge. Petitioner Erik Earhart appeals the
order of the district court denying his petition for a writ of habeas corpus. Earhart
alleges that the district court erred in failing to grant the writ because the State of Ohio
violated his Sixth and Fourteenth Amendment rights by 1) forcing him to wear a stun
belt during the entirety of his trial and 2) admitting into evidence the testimony of
alleged victim F.T.1 by video deposition without a proper finding that the witness was
unavailable. Finding that Earhart’s second issue has merit, we hold that the admission
of the videotape deposition without a proper finding that the witness was constitutionally
unavailable violated Earhart’s clearly established right to confrontation under the Sixth
Amendment. Consequently, we reverse the judgment of the district court and grant
Earhart a conditional writ as to count four of the indictment, charging him with gross
sexual imposition against F.T. Because Earhart is not entitled to relief upon the
remainder of his claims, we affirm the judgment of the district court as to the remainder
of the petition.

                                                    I.

         In May 2001, an Ohio grand jury charged Earhart in an indictment with one
count of rape of a child under thirteen years of age, in violation of Ohio Revised Code
§ 2907.02(A)(1)(b), and four counts of gross sexual imposition on a child under thirteen
years of age, in violation of Ohio Revised Code § 2907.05(A)(4). The indictment
concerned conduct that occurred at a birthday party at the Preston Hotel in Sharonville,
Ohio, that the Ohio Court of Appeals succinctly summarized as follows:

                 In May 2001, Earhart, a bus driver and chaperone for a group of
         Michigan children participating in a band competition, visited the Preston
         Hotel in Sharonville, Ohio. A young girl not affiliated with the band was

         1
          This opinion will refer to the minor victims by their initials in accordance with Federal Rule of
Criminal Procedure 49.1(a).
No. 07-4127             Earhart v. Konteh                                                            Page 3


         celebrating her tenth birthday with friends at the hotel pool. Earhart
         approached the girls, spoke with them, and asked one of the girls to
         accompany him to his hotel room while he changed into his swimsuit.
         She declined. When Earhart returned to the pool, he joined the girls’
         games. He picked the children up and threw them into the air. Each of the
         four female victims described that while Earhart was picking them up, he
         forcefully rubbed their pubic regions.
                 Earhart followed the children into a nearby hot tub. There he
         digitally raped one of the ten-year-old victims. One of the other victims
         saw the rape. With the rape victim in tears, the girls left the hot tub. The
         victim told her mother about the attack. The mother summoned
         Sharonville police and Earhart was arrested. The rape victim was
         examined at Children’s Hospital. Doctors found vaginal abrasions
         consistent with sexual abuse.

State v. Earhart, 2004-Ohio-4791, at ¶¶ 2-3 (Ohio Ct. App. Sept. 10, 2004).

         Earhart proceeded to trial in the Hamilton County Court of Common Pleas in
July 2002, acting as his own attorney. Prior to the start of the trial, Earhart objected to
the State’s requiring him to wear a Remote Electronically Activated Control Technology
(REACT) belt (the “stun belt”), arguing that it infringed upon his Sixth Amendment
right to represent himself. Specifically, Earhart argued that because he had no idea what
type of outbursts or actions might cause the deputy to activate the belt, Earhart would
necessarily have to curtail the content of questions he might ask as he sought to present
his defense. The state trial court agreed to hold a hearing in which the officer in charge
of training courtroom deputies as to the proper use of the belt, Lieutenant John Adkins,
could testify as to the department’s procedures regarding the belt’s activation.

         Adkins testified that the REACT belt is capable of subjecting its wearer to a
50,000-volt shock of electricity for a period of eight seconds when activated. Despite
the fact that Hamilton County authorities had used the belt several hundred times, the
deputies had never once activated the belt, intentionally or otherwise.2 The deputies’
training instructed them to activate the belt should a defendant have “any hostile

         2
          We have previously considered an Ohio prisoner’s capital habeas petition where officers did
accidentally activate a stun belt. See Filiaggi v. Bagley, 445 F.3d 851, 853 (6th Cir. 2006). Filiaggi’s case,
however, did not originate in Hamilton County. See State v. Filiaggi, No. 95CA006240, 1997 Ohio App.
LEXIS 5468, at *1 (Ohio Ct. App. Dec. 10, 1997) (noting that the trial occurred in Lorain County).
No. 07-4127        Earhart v. Konteh                                               Page 4


outbursts, any type of combativeness towards anyone in the courtroom, any means of
escape.” (Trial Tr. at 55.) These training sessions lasted for a minimum of fourteen
hours of classroom time. When asked for a more detailed definition of what could
constitute a hostile outburst, Adkins refused, explaining “[s]o if you wanted a specific
definition for an outburst, I don’t have the answer for you.” (Trial Tr. at 58.)
Ultimately, the decision to activate the stun belt was “up to the officer’s discretion”
guided by the officer’s “common sense.” (Trial Tr. at 58.) The officers did receive
training that allowed them to avoid mistaking a fervent objection to trial testimony with
a hostile outburst. Earhart also questioned Adkins about how the Hamilton County
Sheriff’s Department determines which prisoners must wear the stun belt during their
trials. Adkins explained that “[e]very pro se defendant or control subject that we’ve had,
we utilize the belt.” (Trial Tr. at 59.) This policy applied to every pro se defendant
charged with a felony without regard to the specific characteristics of the defendant.

       Following this testimony, the state trial court held that it would defer to the
policy of the Hamilton County Sheriff’s Department and require Earhart to wear the stun
belt at all court proceedings. The trial court made no findings that Earhart was a
particularly dangerous defendant, had a propensity to attempt to escape, or was generally
unable to conduct himself in a proper manner. The trial court also restricted Earhart’s
movements within the courtroom to the area in front of the two counsels’ tables and the
podium.    This order forbade Earhart from approaching the witnesses during his
questioning. The trial court imposed the same movement restrictions on the prosecution
to avoid the jury’s drawing an improper inference.

       The trial proceeded before a jury and each alleged victim personally testified
about Earhart’s actions on the evening of the birthday party with the exception of F.T.
The State sought to introduce a videotape deposition of F.T. in place of her live
testimony, explaining that F.T. had a long-planned vacation that the State did not wish
to interrupt. Earhart was present at the deposition, was able to fully cross-examine F.T.,
and understood that the deposition could be used at trial. However, Earhart objected to
the admission of the deposition, arguing that the State had failed to show that F.T. was
No. 07-4127        Earhart v. Konteh                                               Page 5


constitutionally unavailable. The trial court overruled Earhart’s objection and found that
the State had complied with the Ohio Rules of Criminal Procedure, which allow for the
admission of videotape depositions if a witness is out-of-state. See Ohio Crim. R. 15(F).

       At the conclusion of all the testimony, the jury convicted Earhart of all five
counts of the indictment.     The state trial court sentenced Earhart to ten years’
imprisonment on the rape count and five years’ imprisonment on each count of gross
sexual imposition. The trial court further ordered that each sentence was to run
consecutively, resulting in a total sentence of thirty years. The sentence represented the
maximum possible under the pertinent statutes. See Ohio Rev. Code Ann. § 2924.14(C)
(establishing the requirements to impose “the longest term authorized for the
offense[s]”). Earhart appealed his conviction and sentence to the Ohio Court of Appeals,
which affirmed both and rejected his assignments of error as to the trial court’s rulings
concerning the stun belt and the admission of F.T.’s deposition. Earhart, 2004-Ohio-
4791, at ¶¶ 4-5, 11-12, 15-18. The Ohio Supreme Court denied Earhart leave to appeal.
State v. Earhart, 821 N.E.2d 578 (Ohio 2005).

       On January 19, 2006, Earhart petitioned for a writ of habeas corpus from the
United States District Court for the Northern District of Ohio. The petition was
transferred to the Southern District of Ohio on February 3, 2006. Earhart raised three
claims: 1) the trial court’s ruling requiring him to wear a stun belt violated his Fifth,
Sixth, and Fourteenth Amendment rights; 2) his sentence violated the Sixth Amendment
because it found its basis in facts not found by the jury; and 3) the admission of F.T.’s
deposition violated the Confrontation Clause. Earhart v. Konteh, No. C-1-06-62, 2007
U.S. Dist. LEXIS 63816, at *7-8 (S.D. Ohio Aug. 29, 2007). The district court held that
Earhart had procedurally defaulted his second claim regarding his sentence. Id. at *21.
As to the two remaining claims, the district court held that the Ohio courts’ holdings
were objectively unreasonable under clearly established Supreme Court precedents.
Analogizing a stun belt to shackles, the district court found that the Ohio state courts
erred by requiring Earhart to wear a restraint absent any individualized finding of
dangerousness or risk of escape. Id. at *25-29. The district court also found that the
No. 07-4127         Earhart v. Konteh                                                  Page 6


admission of F.T.’s videotape deposition was error because F.T. was not unavailable
within the meaning of the Sixth Amendment. Id. at *40-42. However, the district court
held that both errors were harmless because of the significant evidence of Earhart’s guilt
and thus dismissed Earhart’s petition. Id. at *33-35, *43-44. The district court further
declined to issue a certificate of appealability. Id. at *45-46. Earhart timely sought a
certificate of appealability from this court; and on April 28, 2008, we granted the
certificate limited to the first and third issues raised in his initial petition. See 28 U.S.C.
§ 2253(c)(2).

                                              II.

        The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs
Earhart’s petition. Pursuant to its terms, a federal court may only issue a writ of habeas
corpus to a prisoner in custody for a state court conviction if the adjudication either:

        (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; or
        (2) resulted in a decision that 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, federal courts must presume as correct the findings
of fact made by the state court unless the petitioner can show by clear and convincing
evidence that the state court’s factual findings were erroneous. 28 U.S.C. § 2254(e)(1).

        We may only determine that the state court’s holding was contrary to clearly
established Supreme Court precedent if “the state court confronts a set of facts that are
materially indistinguishable from a [Supreme Court] decision . . . and nevertheless
arrives at a result different from [Supreme Court] precedent.” Brumley v. Wingard, 269
F.3d 629, 637-38 (6th Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)
(alterations in original)). A state court decision is also “contrary to” Supreme Court
precedent if the “state court applies a rule that contradicts the governing law set forth”
by the High Court. Williams, 529 U.S. at 405. We may find that the state court
unreasonably applied Supreme Court precedent if the state court “correctly identifies the
No. 07-4127         Earhart v. Konteh                                                 Page 7


governing legal rule but applies it unreasonably to the facts of a particular [petitioner’s]
case.” Id. at 407-08. The writ may not issue solely because the state court incorrectly
applied the relevant Supreme Court precedent. Id. at 411. Instead, we must also find
that the state court’s misapplication was objectively unreasonable for the writ to issue.
Id. In determining whether the state court misapplied Supreme Court precedent, a
federal court may only look to the state of the case law “as of the time of the relevant
state-court decision.” Id. at 412. We must base our decision solely on the holdings of
the Supreme Court, not its dicta or the holdings of the courts of appeals. Id. For the
purposes of habeas review, an error will be harmless unless it had a substantial and
injurious effect or influence in determining the jury’s verdict. See Fry v. Pliler, 551 U.S.
112, 116 (2007).

                                             A.

                                             1.

        Earhart first argues that the district court erred in its holding that the Ohio trial
court committed harmless error when it admitted the videotape deposition of F.T. at
Earhart’s trial in lieu of live testimony. Earhart points to the fact that absent F.T.’s
testimony, the State was left with the contradictory assertions of F.T.’s fellow
partygoers. The State argues that Earhart waived the issue because both Earhart and his
then-attorney “had a complete understanding that the witness’s recorded deposition
testimony could be used at trial.” (Resp. Br. at 43.)

        The State relies upon our holding in Bailey v. Mitchell, 271 F.3d 652 (6th Cir.
2001), to argue that Earhart waived his right to contest the admission of the videotape
deposition.   In Bailey, we held that a criminal defendant waived his right to
confrontation by entering into a quid pro quo agreement with a state prosecutor. Id. at
657. The petitioner in Bailey had agreed to allow the State to admit the videotape
deposition if the prosecutor would consent to the defendant’s motion for a continuance.
Id. Importantly, the Ohio state courts found as a factual matter that Bailey had made an
explicit deal with the prosecutor for the admission of the videotape. Id.
No. 07-4127         Earhart v. Konteh                                                Page 8


        At the hearing to determine the admissibility of the deposition, Earhart did state
that he understood that the deposition’s purpose was to take the testimony of F.T. for
possible use at trial. However, the state trial court did not find that Earhart or his prior
attorney, Robert Ranz, consented to the admission of the videotape. The trial court
merely ruled that the State had satisfied the requirements of the Ohio Rules of Criminal
Procedure concerning the admission of videotape testimony when a witness is out-of-
state. In the brief section of its opinion addressing Earhart’s Confrontation Clause
argument, the Ohio Court of Appeals nowhere found that Earhart or Ranz agreed to
allow for the deposition’s admission. See Earhart, 2004-Ohio-4791, at ¶¶ 11-12. The
state appellate court instead considered Earhart’s objections on the merits and rejected
them. Id. Contrary to the State’s contention, the record clearly reflects that Earhart and
Ranz agreed to participate in the deposition of F.T. but that the State would determine
later if it would introduce the videotape at all. See Trial Tr. at 522 (emphasizing that
Earhart understood that the tape “might be” used at trial). When the State affirmatively
announced its intention to admit the videotape deposition in lieu of F.T.’s live testimony,
Earhart immediately objected to its admission on the ground that F.T. was not truly
unavailable. The record fails to demonstrate that Earhart waived his right to contest the
admission of the videotape, and we thus will turn to the merits of the issue.

                                            2.

        We previously have held that the Ohio Rules of Criminal Procedure concerning
the admission of videotape testimony do not meet constitutional scrutiny because they
do not require a finding of unavailability in the constitutional sense. Brumley, 269 F.3d
at 640 (finding Ohio Crim. R. 15(F) inconsistent with the Sixth Amendment’s
Confrontation Clause). The Constitution requires unavailability before a court may
admit the prior testimony of a witness. Ohio v. Roberts, 448 U.S. 56, 65 (1980),
overruled on other grounds by Crawford v. Washington, 541 U.S. 36 (2004).
Consequently, “the knowing preparation of a videotaped deposition as a substitute for
the trial testimony of a constitutionally available witness is inconsistent with the values
of the Confrontation Clause.” Brumley, 269 F.3d at 642.
No. 07-4127         Earhart v. Konteh                                               Page 9


         F.T. was not present at trial because she was on vacation. The State did not seek
to compel her presence by compulsory process even though it knew exactly where F.T.
was. Because of its complete lack of effort to secure her presence, Ohio cannot argue
that it made the required “good-faith effort to obtain” F.T.’s presence. Barber v. Page,
390 U.S. 719, 725 (1968). Thus, despite the fact that Earhart had an opportunity to cross
examine F.T., the videotape was not admissible because F.T. was not unavailable. See
Crawford, 541 U.S. at 59 (“Testimonial statements of witnesses absent from trial have
been admitted only where the declarant is unavailable.”) We thus affirm the district
court’s finding that Ohio’s admission of the videotape deposition was constitutional
error.

         The State responds that any error was harmless because F.T.’s testimony was
“merely cumulative of other testimony produced by live witnesses at trial.” (Resp. Br.
at 46.) When considering whether a Confrontation Clause error is harmless, we consider
several factors such as “the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the extent
of cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (citation
omitted); Fulcher v. Motley, 444 F.3d 791, 809 (6th Cir. 2006).

         F.T. was the alleged victim of the gross sexual imposition charge specified in
count four of the indictment.       Her testimony, as the actual victim, would have
undoubtedly been the most convincing evidence as to that charge. Excluding F.T.’s
testimony, the State was left with the following conflicting accounts of six witnesses:
K.H. testified that she saw Earhart throw F.T. into the pool. M.M. testified that Earhart
held five girls, including F.T., “in a bad area” when he threw them into the pool. (Trial
Tr. at 467-68.) Finally, J.M., the rape victim, testified that Earhart had thrown F.T. and
two others the same way he had thrown her; namely, with his hands in between her legs.

         This testimony was offset by that of three other witnesses. Jeri Leach, the mother
of J.M. and the only adult supervising the pool party, did not recall F.T. as one of the
No. 07-4127         Earhart v. Konteh                                              Page 10


children Earhart tossed into the pool. Similarly, J.R. did not remember seeing Earhart
throw F.T. into the pool. D.M. stated that she only saw Earhart throw J.M. D.M. further
testified that F.T. was not in the pool at the time Earhart threw J.M. Leach corroborated
this part of D.M.’s testimony with her recollection that F.T. “got out for a little while to
go back to the room for some reason.” (Trial Tr. at 373.)

        In summary, absent F.T.’s testimony, the State presented three witnesses who
clearly remembered Earhart’s throwing F.T. Two of those witnesses specifically
recalled Earhart as having grabbed F.T. between her legs. Three other witnesses could
not recall Earhart’s throwing F.T. Two of those witnesses did not recall that F.T. was
in the pool during the time that Earhart threw the other children. A jury certainly could
have believed the specific testimony of J.M. and M.M. that Earhart sexually assaulted
F.T. However, a jury also could have credited the testimony of D.M., corroborated by
the only other adult at the pool other than Earhart, that F.T. was not in the pool area
when Earhart threw the other children. Given this factual dispute, it is likely that F.T.’s
videotape deposition helped to cure the doubts sown by Leach’s, J.R.’s, and D.M.’s
testimony. The prosecution clearly had a much weaker case for the gross sexual
imposition charge regarding F.T. without the victim’s testimony. Because we find that
F.T.’s testimony that Earhart sexually assaulted her was key to the jury’s decision to
convict Earhart of count four, admission of the videotape deposition was not harmless.
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (stating that a Confrontation Clause
error is not harmless if it had “a substantial and injurious effect or influence in
determining the jury’s verdict”). We therefore reverse the district court and grant a
conditional writ as to count four of the indictment.

                                            3.

        During oral argument, Earhart asserted that the admission of F.T.’s deposition
tainted his remaining convictions because F.T. was the only witness who provided
testimony that allowed the jury to infer that Earhart’s touching of the girls was sexually
motivated. Specifically, Earhart noted that F.T. testified that Earhart invited F.T. to
come up to his room while he changed into his swimsuit. Despite the absence of a
No. 07-4127           Earhart v. Konteh                                                        Page 11


transcript of the deposition in the record on appeal, it is clear that F.T. did so testify
because the prosecutor made reference to this portion of F.T.’s testimony in his closing
argument: “But you can draw an inference [that the touching was of a sexual nature]
from the fact that this stranger, this man said to [F.T.], come to my room while I change
into my bathing suit.”3 (Trial Tr. at 710-11.) Earhart is therefore correct that F.T.’s
testimony would allow the jury to draw the inference that Earhart’s touching of the girls
was sexually motivated.

         Earhart is incorrect, however, that F.T.’s testimony provided the only evidence
from which the jury could draw such an inference. Leach, J.M.’s mother, testified that
Earhart had told “[t]he girls” his room number. (Trial Tr. at 368.) J.M.’s brother
testified that, when throwing the girls in the pool, Earhart grabbed them differently than
when Earhart threw him. Earhart grabbed the brother by the waist; however, Earhart
held the girls by the bottom. Each alleged victim also testified that Earhart grabbed her
in between her legs. J.R. testified that when Earhart touched her between her legs, it was
not a glancing brush but rather “was on purpose.” (Trial Tr. at 427.) Both K.H. and J.M.
described how Earhart rubbed them between their legs when he grabbed them. M.M.,
who attended the party but did not claim Earhart assaulted her, testified that Earhart
“supported [J.R., K.H., and J.M.] in a bad area” when he threw them. (Trial Tr. at 467-
68.) Likewise, fellow party attendee D.M. testified that Earhart grabbed J.M. “[u]nder
her private and her butt” when he threw J.M. (Trial Tr. at 483.) The prosecutor seized
on this consistent testimony by all four alleged victims to prove Earhart’s sexual intent:
“What stranger, what adult man going to . . . different girls in a swimming pool and
consistently and repeatedly picks those girls up with one hand between their legs?”
(Trial Tr. at 716-17.)

         Earhart’s own actions at trial coupled with medical evidence further demonstrate
the wealth of evidence stacked against him with regard to the remaining charges.


         3
          J.M. testified that Earhart told F.T. and K.H. to come up to his room while he changed into his
swimsuit and gave each his room number. Upon Earhart’s contemporaneous objection, the trial court
struck J.M.’s statement from the record as inadmissable hearsay. (Trial Tr. at 502-03.) We therefore do
not consider this testimony when determining whether the erroneous admission of F.T’s videotape
deposition tainted Earhart’s remaining convictions.
No. 07-4127         Earhart v. Konteh                                                Page 12


Earhart admitted that he tossed J.M., K.H., and J.R into the pool. He further admitted
that “[e]ach time [J.M.] was picked up and tossed in the same manner.” (Trial Tr. at
706.) This corroborated the consistent testimony of the victims that Earhart tossed each
of them from the same position – one that began with his hand between their legs. A
medical exam and the testimony of K.H. corroborated J.M.’s own testimony regarding
the rape count. Based upon the testimony at trial, the jury had ample evidence from
which it could conclude that Earhart’s actions found their basis in a search for sexual
gratification even absent the undeniably damaging testimony of F.T. Unlike count four
charging gross sexual imposition with regard to F.T., the evidence against Earhart as to
the remaining counts of the indictment was hardly “based tenuously on circumstantial
evidence” or contradictory testimony. Cf. United States v. Miller, 319 F. App’x 351, 355
(6th Cir. 2009). The erroneous admission of F.T.’s videotape deposition cannot have
tainted the remaining convictions, and we accordingly decline to issue the writ on this
basis See Fry, 551 U.S. at 116 (requiring a finding of “substantial and injurious effect
or influence in determining the jury’s verdict” as a prerequisite to granting habeas relief)
(internal quotation marks and citation omitted).

                                             B.

        Earhart next argues that the district court erred by failing to grant the writ
because the state trial court’s ruling requiring him to wear a stun belt at trial without any
individualized finding of necessity violated both his Sixth Amendment right to act as his
own attorney and the due process clause of the Fourteenth Amendment. Earhart alleges
that the stun belt was visible to the jury, prejudicing his ability to receive a fair hearing.
Earhart further asserts that the restrictions on his movement placed by the trial court
further cast the pall of guilt over him in the jurors’ eyes. Finally, the petitioner argues
that the mere presence of a stun belt capable of delivering a 50,000-volt shock to his
kidneys necessarily chilled his ability to ask certain lines of questions in what was
already certain to be an emotionally charged case. The State responds that the district
court erred in its holding that the state trial court committed constitutional error in
ordering Earhart to wear the belt because the Supreme Court has never ruled on the
No. 07-4127         Earhart v. Konteh                                                 Page 13


constitutional protections a defendant is entitled to before he may be so restrained. In
the alternative, the State argues that the evidence against Earhart was so overwhelming
that no prejudice to his case could have resulted from his wearing the stun belt. We turn
first to the question of whether Earhart may claim the protection of a clearly established
constitutional right. See 28 U.S.C. § 2254(d)(1) (prohibiting the granting of habeas
relief absent a clearly established right under federal law “as determined by the Supreme
Court of the United States”).

                                              1.

        The State is correct that the Supreme Court has yet to consider the issue of
whether and when a trial court, consistent with constitutional protections, may order a
defendant to wear a stun belt during his trial. However, the Supreme Court has decided
a series of cases over the past forty years that clearly establish the proposition that a trial
court may not impose a physical restraint upon a defendant’s person without an
individualized finding of dangerousness or risk of escape. See, e.g., Holbrook v. Flynn,
475 U.S. 560, 568-69 (1986) (noting that shackling is “inherently prejudicial” and is
only “justified by an essential state interest specific to each trial”); Illinois v. Allen, 397
U.S. 337, 343-44 (1970) (holding that “no person should be tried while shackled and
gagged except as a last resort” but that such measures are allowed if the defendant is
“disruptive, contumacious, [and] stubbornly defiant”). The Supreme Court most recently
reaffirmed these principles in Deck v. Missouri, 544 U.S. 622, 626 (2005), by noting that
“[t]he law has long forbidden . . . permit[ting] a State to shackle a criminal defendant
[without] the presence of a special need.” (emphasis added). While the Supreme Court
decided Deck after Earhart’s conviction became final, the principle that the State cannot
as a matter of general policy shackle a defendant predates Deck. See id.; Lakin v. Stine,
431 F.3d 959, 963 (6th Cir. 2005) (“[T]he principle that shackling a defendant at trial
without an individualized determination as to its necessity violates the due process
clause was clearly established long before Deck was decided.”). This is because
physical restraints necessarily degrade a defendant’s ability to aid in his own defense.
Allen, 397 U.S. at 344.
No. 07-4127            Earhart v. Konteh                                                         Page 14


         As our court recently has noted, however, Deck also clarified the contours of the
clearly established constitutional protection against unnecessary physical restraints
during trial. In Mendoza v. Berghuis, 544 F.3d 650, 651 (6th Cir. 2008), the petitioner
sought habeas relief because, at his Michigan trial for assault with intent to commit
murder, Mendoza wore leg shackles that were not visible to the jury. As with the Ohio
Court of Common Pleas here, the Michigan trial court made no specific factual findings
concerning Mendoza’s likelihood of escape or dangerousness when it issued its order
requiring Mendoza to be shackled.                   Instead, the trial court deferred to the
recommendation of the local sheriff’s department. Id. To prevent the jury from seeing
the shackles, the Michigan trial court “skirt[ed] both counsel tables with brown paper for
the duration of the trial.” Id. Mendoza argued that the jurors most likely suspected that
he wore shackles during his trial, particularly because some jurors inadvertently had seen
Mendoza shackled as officers led him into the courthouse. Id. at 652.

         On appeal, we affirmed the district court’s denial of the writ. Id. at 651. We first
noted that even though the Supreme Court decided Deck – the case Mendoza primarily
relied upon – after Mendoza’s conviction, our precedents required us to apply Deck’s
holding “in toto” as though it were clearly established at the time of Mendoza’s
conviction. Mendoza, 544 F.3d at 654 (citing Lakin, 431 F.3d at 963). The question
thus became what exactly did Deck reemphasize as a clearly established constitutional
right. Because the Supreme Court had stressed “at least six times” the limitation of its
holding to visible restraints, we held that Deck “concerned only visible restraints at
trial.” Id. The Michigan courts’ resolution of Mendoza’s appeal thus was not
objectively unreasonable, as the brown paper surrounding both counsels’ tables
prevented the jurors from ever knowing that Mendoza wore shackles at his trial.4 Id. at
655. The fact that the trial court had allowed Mendoza to testify in his own defense free
from any physical restraints also served to prevent the jury from drawing an adverse


         4
           The fact that several jurors saw Mendoza in shackles as officers transported him to the
courtroom was irrelevant because “[r]estraining a defendant in the courtroom, and restraining him during
transport there, are two very different things.” Id. at 655 (citing United States v. Moreno, 933 F.2d 362,
368 (6th Cir. 1991)). Reasonable jurors expect deputies to restrain all defendants in transport so that the
sight of a shackled Mendoza in this context could cause no prejudice. Id.
No. 07-4127            Earhart v. Konteh                                                         Page 15


inference from the presence of the brown paper. Id. at 652. Nor did we find it a
violation of clearly established Supreme Court precedent because “the Michigan courts
did not hold that visible shackling, absent the determination of necessity required by
Deck, was permissible.” Id. at 654 (emphasis added).

         Under this narrow interpretation of Deck, Earhart’s appeal rises or falls on the
question of whether the stun belt was visible to the jury. If Earhart’s stun belt was a
visible restraint, due process mandates an individualized finding of necessity before the
state courts could require Earhart to wear the belt. See Mendoza, 544 F.3d at 654; see
also Deck, 544 U.S. at 624 (holding that an essential interest “specific to the defendant”
is required to physically restrain a defendant during his trial); Holbrook 475 U.S. at 468-
69. If the stun belt was not visible, then there is not a violation of clearly established
federal law sufficient to grant the writ.5 Mendoza, 544 F.3d at 654.

         Earhart claims that the stun belt was visible to the jury. The state appellate court
flatly rejected this argument and found as a factual matter that the belt was not visible.
See Earhart, 2004-Ohio-4791, at ¶ 5 (stating that “there is no evidence that the jury was
aware of the stun belt”). This finding of fact by the state court is binding upon us unless
Earhart can show it is clearly erroneous. 28 U.S.C. § 2254(e)(1). Earhart cannot meet
this high burden because the transcript of the proceedings makes clear that even the state
trial judge was unaware Earhart was wearing the belt until Earhart specifically brought
it to his attention. As the trial judge considered the propriety of requiring Earhart to
wear the belt during his trial, the judge interrupted himself to ask, “And I will – you are
not wearing the belt right now are you?” (Trial Tr. at 11.) If an experienced trial judge
could not tell that Earhart was wearing a stun belt underneath his clothes, the members




         5
           This court held in United States v. Miller, on plain-error review of a post-Deck district-court
decision, that due process post-Deck requires an individual hearing on the use of a stun belt during trial,
even if non-visible. 531 F.3d 340, 344-45 (6th Cir.), cert. denied, 129 S. Ct. 307 (2008). Earhart’s trial,
however, occurred prior to Deck.
No. 07-4127              Earhart v. Konteh                                                               Page 16


of the jury are highly unlikely to have detected it either. Earhart thus has failed to
establish a due process violation based upon the visibility of the belt itself.6

                                                        2.

          Sensing the strength of the state courts’ factual findings, Earhart asserts that
while the stun belt may not have been clearly visible to the jury, its effects clearly were.
In what is more properly characterized as an argument that the Ohio courts violated his
Sixth Amendment right to act as his own attorney, Earhart alleges that the restrictions
placed upon his movements combined with his own self-imposed limitations on his lines
of questioning necessarily led the jury to draw the conclusion that Earhart was especially
dangerous – thereby severely prejudicing his defense. Ohio responds by once again
emphasizing the state courts’ factual findings that both the prosecutor and Earhart were
subject to the same movement restrictions. The State also notes the strength of the
evidence marshaled against Earhart so that even were there a constitutional violation, no
prejudice could have resulted.

          To support his argument that the state trial court allowed the prosecutor to move
about the courtroom freely while tightly constraining Earhart’s movements, Earhart
directs us to the following statement made by the prosecutor:

          But in the issue of dealing with children, I do have to move closer . . . to
          make the children comfortable and to make them heard, if that’s
          necessary, I want leeway to approach them. . . . I don’t have a problem
          with any other witnesses . . . . I may take a chair and put a chair where

          6
            Our holding that Earhart is not entitled to relief under the limited purview of habeas review
should not bring comfort to Ohio authorities. As a matter of state law, Ohio requires that physical
restraints – such as a stun belt – may only be used “as a last resort . . . justified by an essential state interest
specific to each trial.” State v. Leonard, 813 N.E.2d 50, 62-63 (Ohio Ct. App. 2004) (internal quotations
and citations omitted). The state trial court failed to make the required individualized findings, see id., and
the Ohio Court of Appeals declined to enforce its own precedent when reviewing Earhart’s appeal. See
Earhart, 2004-Ohio-4791, at ¶ 5 (purporting to apply Leonard). Only the fact that a federal court may not
grant habeas relief because of an error solely of state law saves Ohio from the consequences of Hamilton
County’s policy of requiring all pro se felony defendants to wear a stun belt during their trials. See Lewis
v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”).
Indeed, were this issue before us on direct appeal from a trial before a federal district court, we would
reverse and remand for a new trial without hesitation. See, e.g., United States v. Durham, 287 F.3d 1297,
1300 (11th Cir. 2002) (reversing and remanding for a new trial because “the district court did not make
findings on the record sufficient to justify the use of [the] extraordinary security measure” of a stun belt);
United States v. Waagner, 104 F. App’x 521, 526-27 (6th Cir. 2004) (affirming an order requiring a
defendant to wear a stun belt where the district court made individualized findings of necessity).
No. 07-4127         Earhart v. Konteh                                              Page 17


        the witness stand is to make my physical presence less intimidating to a
        child who is about to testify. These are just various techniques that I’ve
        developed over 20 years of doing this, and I do not want to be limited in
        that regard.

(Trial Tr. at 65-67.)     Earhart argues that the prosecutor’s statement proves the
importance of being able to approach the witness stand freely when questioning child
witnesses. Because the trial court required Earhart to remain either behind a podium or
within a small rectangular area located in front of both counsels’ tables at all times,
Earhart asserts that the prosecutor’s own words prove that his defense suffered.

        The record belies Earhart’s argument. Almost immediately after the prosecutor
made the above-quoted argument to the state trial court, the trial judge overruled the
prosecutor’s objections and required him to abide by the exact same movement
restrictions as Earhart. See Trial Tr. at 68 (“And I will ask the State to comply with the
same restrictions.”). On direct appeal, the Ohio Court of Appeals examined the record
and found as a factual matter that the prosecutor did abide by the same movement
constraints as Earhart. See Earhart, 2004-Ohio-4791, at ¶ 5 (“The trial court identified
areas of the courtroom in which Earhart could move freely without fear of being stunned,
and it imposed the same movement restrictions on the assistant prosecutor.”). Earhart
has presented no evidence to demonstrate that the prosecutor failed to follow the state
trial court’s order. Cf. 28 U.S.C. § 2254(e)(1). Indeed, the only time the prosecutor
appears to have left the confines demarcated by the trial court was when Earhart himself
requested that the prosecutor deliver a mannequin to a witness to aid that witness in
answering Earhart’s questions on cross-examination. See Trial Tr. at 413 (the
prosecutor asks that “the record [] reflect Mr. Earhart has asked [the prosecutor] to assist
him with the manikin [sic]”). Because there was no disparity between the restrictions
placed upon Earhart and those placed upon the prosecution, no violation of Earhart’s
Sixth Amendment right to act as his own attorney occurred.

        In light of the overwhelming evidence of Earhart’s guilt on the remaining four
counts of the indictment, Earhart similarly cannot succeed as to his claim that the trial
court’s order requiring him to wear the stun belt had a “chilling effect” upon him. As
No. 07-4127        Earhart v. Konteh                                              Page 18


noted above, the prosecutor presented the jury with the consistent, corroborated
testimony of each of the victims. Each defendant, except F.T., personally testified and
identified Earhart in open court as her assailant. Each victim described the same act of
fondling – the placing of Earhart’s hands between her legs and rubbing of the pubic area.
This is undoubtedly powerful evidence of Earhart’s guilt. As to the rape count, not only
did the victim J.M. testify that Earhart penetrated her with his finger but also an
independent medical examination supported this accusation. K.H. additionally testified
that she was underwater wearing goggles at the time of digital rape and saw Earhart
place his finger underneath J.M.’s bathing suit. Finally, there was the damning
interrogation videotape of Earhart chewing off his fingernails after learning that the
police intended to swab underneath them for any DNA evidence. It is unsurprising that
Earhart can present us with no additional lines of questioning he might have undertaken
to clear his name. In light of this mountain of evidence, there was little he could do that
he did not already attempt in his effort to escape conviction. We therefore agree with
the district court that Earhart is not entitled to habeas relief as to any of the remaining
four charges on which the jury convicted him.

                                           III.

       For the foregoing reasons, we reverse the judgment of the district court and grant
Earhart a conditional writ of habeas corpus as to count four of the indictment, charging
gross sexual imposition against alleged victim F.T. The State of Ohio shall have 120
days from the issuance of this court’s mandate either to commence a retrial of Earhart
on count four or vacate his sentence as to the count, leaving Earhart with an effective
sentence of twenty-five years. As to all other issues, we affirm the judgment of the
district court dismissing Earhart’s habeas petition.
No. 07-4127         Earhart v. Konteh                                              Page 19


                           ____________________________

                               DISSENTING IN PART
                           ____________________________

        KAREN NELSON MOORE, Circuit Judge, dissenting in part. I dissent from
Part II.B.2 of the majority opinion because I believe that we should remand to the district
court for an evidentiary hearing on Earhart’s first issue: whether his Sixth Amendment
right to present a complete defense was violated by the trial court’s failure to enforce the
movement restrictions against the prosecutor.

        I disagree with the majority that the record “belies Earhart’s argument” that “the
state trial court allowed the prosecutor to move about the courtroom freely while tightly
constraining Earhart’s movements.” Maj. Op. at 17. While the transcript does not
record directly the movements of the parties as the jury would have viewed them, it
appears that Earhart abided by the district court’s restrictions, and, thus, the stun belt’s
effects on Earhart were visible even if the actual belt itself was not. There is no
indication in the record that Earhart approached any witnesses—instead, the record
indicates that he requested the prosecutor deliver exhibits to witnesses multiple times.
See Trial Tr. at 413, 432, 450, 457-58, 472, 474, 485-86, 567-68. The record does
indicate, however, that the prosecutor had more freedom of movement during the trial
despite the fact that Earhart and the prosecutor were purportedly subjected to the same
restrictions. For example, the prosecutor held the mannequin he used with several
witnesses because it would not stay on the witness stand after he set it there, Trial Tr. at
408-10, 426, 445-46, 468, 483-84, 503-04, and he also handed it to two child witnesses
whom he asked to “step down here” and “come over here” to sit in a chair and hold the
mannequin for demonstrative purposes, Trial Tr. at 462-63, 506-07. I also believe that
it is questionable whether the prosecutor physically approached witnesses when utilizing
exhibits, as he stated several times that he was “showing” or “handing” or “giving”
exhibits to witnesses. Trial Tr. at 360-61, 365, 387-89, 404, 423, 441, 466, 481, 496-97,
562-63, 577, 645. Contrary to the majority’s conclusion, then, a review of the record
shows there could have been a disparity between the movements of the parties during
No. 07-4127        Earhart v. Konteh                                             Page 20


the trial that violated Earhart’s “Sixth Amendment right to act as his own attorney,”
rebutting any factual determination to the contrary. See 28 U.S.C. § 2254(e)(1).

       A violation of the Sixth Amendment right to conduct one’s own defense is a
structural trial error not subject to the harmless-error rule; thus, whether Earhart was
prejudiced is irrelevant in determining whether his movement restrictions violated his
right to self-representation. McKaskle v. Wiggins, 465 U.S. 168, 173, 174, 177, 177 n.8
(1984) (holding an accused has a constitutional right under the Sixth Amendment “to
conduct his own defense,” and the “primary focus” in determining whether this right was
violated “must be on whether the defendant had a fair chance to present his case in his
own way” (citing Faretta v. California, 422 U.S. 806 (1975))). If Earhart’s rights were
violated, the Ohio Court of Appeals acted “contrary to” clearly established federal law
in applying a harmless-error analysis, and habeas relief would be appropriate. Mendoza
v. Berghuis, 544 F.3d 650, 653 (6th Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)).

       Because the record on appeal is unclear as to whether the prosecutor “did abide”
by the restriction—and, if not, how much the prosecutor actually did move about the
courtroom while Earhart remained restrained—it is appropriate to remand for an
evidentiary hearing on whether Earhart’s Sixth Amendment right to participate fully in
his pro se defense was violated.

       For these reasons, I respectfully dissent from Part II.B.2 of the majority opinion.
