*

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

Circuit, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0377p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ANTONIO MENDOZA,

 Petitioner-Appellant,

v.

MARY BERGHUIS, Warden,

 Respondent-Appellee.

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No. 07-1115

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-10029—David M. Lawson, District Judge.

Argued: September 15, 2008

Decided and Filed: October 15, 2008 

Before: GILMAN, KETHLEDGE, and ALARCÓN, Circuit Judges.*

 

_________________

COUNSEL

ARGUED: Mary Cole Mertz, SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for Appellant.

Andrew L. Shirvell, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,

for Appellee. ON BRIEF: Mary Cole Mertz, SQUIRE, SANDERS & DEMPSEY, Columbus,

Ohio, for Appellant. Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee. Antonio Mendoza, Lapeer, Michigan, pro se.

_________________

OPINION _________________

KETHLEDGE, Circuit Judge. Antonio Mendoza appeals the denial of his petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, after his conviction in Michigan state court of assault

with intent to commit murder, malicious destruction of property, carrying a concealed weapon, and

possession of a firearm during the commission of a felony. During his trial, Mendoza was restrained

in leg shackles that were not visible to the jury. He claims these shackles violated his constitutional

rights because, he says, the jury likely knew he was wearing them. We affirm the district court’s

denial of the writ.

1
No. 07-1115 Mendoza v. Berghuis Page 2

I.

On August 15, 1998, as Chris Mehney drove home from grocery shopping, Antonio

Mendoza intentionally crashed his vehicle into hers, causing it to run off the road into a ditch.

Mehney escaped from her car and fled from Mendoza on foot. He caught up with her, twice hit her

with the butt of a gun, and then shot her in the face. Mehney again tried to run, but Mendoza shot

her several more times. She survived the attack. 

Mendoza was later apprehended and tried in Michigan state court for the assault. At the

county sheriff’s recommendation, the court determined that Mendoza should wear leg shackles

during trial. According to counsel for the State, the sheriff deemed Mendoza a flight and security

risk based on “a series of incidents” that had occurred during Mendoza’s incarceration. Although

the court acknowledged the sheriff’s recommendation on the record, it did not otherwise cite any

specific basis for its shackling decision. 

The court concealed Mendoza’s shackles from the jury, however, by skirting both counsel

tables with brown paper for the duration of the trial. In addition, the court ordered the deputies

transporting Mendoza to bring him in and out of the courtroom via a “back way” to “make sure that

he is not unduly exposed to the jury.” The court also permitted Mendoza to testify unshackled. 

Mendoza does not allege the jury saw him in leg shackles during trial. He does allege–as

he alleged in the trial court–that, on the fourth day of trial, four jurors briefly observed him in a

hallway wearing both hand and foot shackles as he was transported to the courtroom from jail. His

counsel moved for a mistrial, arguing that even the brief sight of Mendoza in shackles unfairly

prejudiced his defense. 

The trial court denied the motion, noting among other things that Mendoza himself had

already testified that he was in jail: 

We have taken every step. We have both tables are [sic] draped. We

– when he testified, there was some provision made to allow Mr.

Mendoza to draw his sketch then to be on the stand without manacles.

Deputies were present.

His own statements indicate that he is in the local county

establishment run by the sheriff’s department and I don’t know what

the prejudice would be other than the fact that he is lodged. And by

his statement and by the statement of the expert produced by the

defense, that is common knowledge before the jury.

The court then offered to consider a curative instruction to the jury, though it is unclear from the

record whether such an instruction was given.

The jury found Mendoza “guilty but mentally ill” on two counts of assault with intent to

commit murder. The jury also found Mendoza guilty of malicious destruction of property over

$100, carrying a concealed weapon, and possession of a firearm during the commission of a felony.

His numerous attempts to challenge his convictions in the Michigan appellate courts were

unsuccessful. 

Mendoza thereafter filed a habeas petition with the United States District Court for the

Eastern District of Michigan, alleging 16 putative grounds for relief. Among them was that he was

“denied a fair trial in violation of the U.S. Constitution, Amendments V and XIV, when he was

presented to the jury in leg irons, despite the fact that he posed no threat of violence, flight or

disruption to the court[.]”
No. 07-1115 Mendoza v. Berghuis Page 3

The district court denied the petition on January 4, 2007. Mendoza filed a notice of appeal

and a motion for certificate of appealability as to his 16 claims for relief. The district court granted

the motion as to the shackling claim, but denied a certificate as to all the others.

II.

A.

We review de novo the district court’s decision to deny the writ of habeas corpus. Ruimveld

v. Mirkett, 404 F.3d 1006, 1010 (6th Cir. 2005). The Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) governs whether the writ may be granted here. AEDPA’s relevant provision

is 28 U.S.C. § 2254(d)(1), which states:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to a judgment of State court shall not be granted with respect to any

claim that was adjudicated on the merits in a State court unless the adjudication of the

claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court

of the United States[.]

The “contrary to” and “unreasonable application” clauses in this section have “independent

meaning[.]” Williams v. Taylor, 529 U.S. 362, 404 (2000). For purposes of this section, a state

court’s decision is “contrary to” clearly established federal law when the decision is “substantially

different from the relevant precedent of [the United States Supreme] Court.” Id. at 405. This clause

applies when a state court, in essence, disagrees with the Supreme Court as to either the answer to

a question of law or the result that should obtain under a particular set of facts. See id. at 405-06.

“Unreasonable application” has been harder to define. The Supreme Court instructs that “a

federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state

court’s application of clearly established federal law was objectively unreasonable.” Id. at 409.

This test requires more than mere error; “a federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the relevant state-court decision

applied established federal law erroneously or incorrectly.” Id. at 411. Indeed even “clear error”

in the state court’s application of federal law is not enough. Lockyer v. Andrade, 538 U.S. 63, 75

(2003) (“The gloss of clear error fails to give proper deference to state courts by conflating error

(even clear error) with unreasonableness”). 

What is required, then, is something more than a close question as to how federal law should

have been applied in a particular case. See, e.g., Bell v. Cone, 535 U.S. 685, 702 (2002) (holding,

in a capital case where defense counsel waived summation for fear of a strong rebuttal by the

prosecution, that “we cannot say that the state court’s application of Strickland’s attorneyperformance standard was objectively unreasonable”). What is required, instead, is something more

like an “obvious failure” properly to apply clearly established federal law. Williams, 529 U.S. at 416

(O’Connor, J., concurring).

Finally, what qualifies as “clearly established law, as determined by the Supreme Court of

the United States,” for purposes of § 2254(d)(1), is itself clear. This phrase refers only “to the

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant

state-court decision.” Williams, 529 U.S. at 412. 
No. 07-1115 Mendoza v. Berghuis Page 4

B.

1.

Mendoza claims the Michigan state courts erred, to the requisite degree, in holding that his

due-process rights were not violated by the circumstances in which he was shackled at trial. As an

initial matter, we must determine whether Mendoza relies on clearly established law, as determined

by the Supreme Court as of the time of the relevant state-court decisions. Id.

We conclude that he does. Mendoza relies primarily on the Supreme Court’s decision in

Deck v. Missouri, 544 U.S. 622 (2005). There, on direct review, the Court held that “the Fifth and

Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court

determination, in the exercise of its discretion, that they are justified by a state interest specific to

a particular trial.” Id. at 629. 

Deck came down in May 2005, well after all of the relevant state-court decisions here. That

would normally preclude Mendoza from relying upon the case in seeking habeas relief. But our

court has twice held that the principles underlying Deck were, in fact, clearly established by the

Supreme Court before its decision in Deck. See Lakin v. Stine, 431 F.3d 959, 963 (6th Cir. 2005);

Robinson v. Gundy, 174 F. App’x 886, 893 (6th Cir. 2006) (unpublished). In so holding in each

case, we noted that the Deck Court itself had stated that “‘[t]he law has long forbidden routine use

of visible shackles during the guilt phase’” of a criminal trial. Lakin, 431 F.3d at 963 (quoting Deck, 544 U.S. at 626); Robinson, 174 F. App’x at 893 (same). Per our precedent, therefore, we treat

Deck’s holding, in toto, as if it were clearly established as of the time of the relevant state-court

decisions here.

The question, then, is whether the Michigan state courts’ decisions with respect to

Mendoza’s shackling were “contrary to” Deck or an “unreasonable application” of it. 28 U.S.C.

§ 2254(d)(1). To answer that question, we must more closely examine Deck itself.

Carman Deck was convicted of capital murder. A sentencing phase followed, during which

he was shackled, in plain view of the jury, with leg irons, handcuffs, and a belly chain. Deck was

sentenced to death, and the Missouri Supreme Court affirmed. 544 U.S. at 624-25. The United

States Supreme Court vacated the sentence, holding that “the Constitution forbids the use of visible

shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is

justified by an essential state interest–such as the interest in courtroom security–specific to the

defendant on trial.” Id. at 624 (emphasis in original; quotation marks deleted).

Deck’s facts and holding, therefore, concerned only visible restraints at trial. The Supreme

Court was careful to repeat this limitation throughout its opinion. See id. at 630 (“[v]isible

shackling undermines the presumption of innocence”) (emphasis added); id. at 632 (“[d]ue process

does not permit the use of visible restraints if the trial court has not taken account of the

circumstances of the particular case”) (emphasis added); id. at 633 (“courts cannot routinely place

defendants in shackles or other physical restraints visible to the jury during the penalty phase of a

capital proceeding”); id. at 635 (“[w]here a court, without adequate justification, orders the

defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual

prejudice to make out a due process violation”) (emphasis added).

For at least two reasons, this limitation precludes any determination that the Michigan state

courts acted “contrary to” Deck in Mendoza’s case. 28 U.S.C. § 2254(d)(1). First, the Michigan

courts did not hold that visible shackling, absent the determination of necessity required by Deck, was permissible. To the contrary, the trial court did everything possible to prevent Mendoza’s

shackles from being visible to the jury. (“We have taken every step.”) The Michigan courts thus

did not “arrive[] at a conclusion opposite to that reached by [the Supreme] Court on a question of
No. 07-1115 Mendoza v. Berghuis Page 5

law[.]” Williams, 529 U.S. at 413. Second, the facts here are not materially identical to those in

Deck. Carson Deck’s restraints were visible to the jury, whereas Mendoza’s were not. That is a

material difference. Consequently, the Michigan courts, in this case at least, did not “decide[] a case

differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. 

Nor were the Michigan courts objectively unreasonable in their application of (or, more

precisely, their failure to apply) Deck’s holding here. Mendoza’s argument is that the jury likely

suspected that the brown paper around each counsel’s table was intended to conceal his leg

restraints. Mendoza contends this suspicion would have been enhanced after several jurors observed

him shackled in the courthouse hallway, while he was being transported to the courtroom. He

therefore asserts he was prejudiced to the same extent that he would have been had his shackles been

plainly visible to the jury during trial.

But the fact remains that Mendoza’s restraints were not visible to the jury during trial. And

the clearly established precedent upon which he relies–namely, Deck–is expressly limited to cases

where the defendant’s shackles are “visible to the jury” during trial. 544 U.S. at 629. Mendoza thus

advocates an extension of Deck, rather than a straightforward application of it. That is not

necessarily fatal to his claim; a state court may apply a precedent unreasonably by refusing to extend

it to facts to which it obviously ought to apply. But the particular limitation that Mendoza seeks to

overleap is one that the Supreme Court emphasized at least six times in Deck. And a limitation thus

emphasized is one the state courts may honor, with relatively little fear of being found “objectively

unreasonable” for doing so.

Moreover, it is not obvious that Deck should be extended to the particular facts present here.

Mendoza testified unshackled before the jury, which may have rebutted an inference that he was

shackled behind the brown paper. Moreover, that he testified unshackled renders inapposite at least

part of Deck’s rationale, namely, that shackles “can interfere with a defendant’s ability to participate

in his own defense, say, by freely choosing whether to take the witness stand on his own behalf.”

Id. at 630. 

Finally, we do not think it especially significant that, according to Mendoza, several jurors

saw him shackled while he was being transported to the courtroom. Restraining a defendant in the

courtroom, and restraining him during transport there, are two very different things. See, e.g.,

United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991) (“We have distinguished the inherent

prejudice to a defendant who is shackled while in the courtroom from a defendant who has been

observed in shackles for a brief period elsewhere in the courthouse”). As the district court observed,

“[i]t is reasonable for law enforcement officers to transport custodial criminal defendants to and

from courthouses across the country with restraints.” (Emphasis added.) And jurors may well

expect criminal defendants–at least ones charged with the kind of conduct at issue here–to be

restrained during transport to the courtroom. That several jurors may have seen Mendoza shackled

during transport, therefore, would not necessarily suggest to them that he was shackled in the

courtroom as well.

None of this is to say that Deck obviously should not be extended to these facts. But it is to

say that this case presented the Michigan courts with a close question. And because the question

was close, we are not free to hold that their resolution of it was objectively unreasonable. The

district court was correct to deny habeas relief on this ground.

2.

Mendoza’s remaining claim is that hallway-viewing incident–in which several jurors

allegedly observed him shackled during transport–amounted to a stand-alone violation of his

constitutional rights. As Mendoza himself concedes, however, the Supreme Court has not held that
No. 07-1115 Mendoza v. Berghuis Page 6

a defendant’s constitutional rights are violated when jurors see him shackled during transport to or

from the courtroom. (There is, incidentally, authority from our court to the contrary. See, e.g.,

Moreno, 933 F.2d at 368.) Consequently, the predicate for his claim–“clearly established federal

law, as determined by the Supreme Court of the United States”–is absent here. 28 U.S.C.

§ 2254(d)(1). 

III.

For these reasons, we affirm the district court’s decision.