[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-15361

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D.C. Docket No. 1:13-cv-04279-WBH

MICHAEL WADE NANCE, 

 Petitioner-Appellant,

versus

WARDEN, GEORGIA DIAGNOSTIC PRISON, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(April 30, 2019)

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit 

Judges.

ED CARNES, Chief Judge:

Michael Wade Nance, a convicted murderer under sentence of death in 

Georgia, appeals the district court’s denial of his 28 U.S.C. § 2254 petition. There 

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are two claims before us. One involves the use of a stun belt security device at his 

resentencing trial. The other is a sentence stage ineffective assistance claim 

involving mitigating circumstances, which is a type of claim common in federal 

habeas challenges to death sentences. What is uncommon about this claim is that 

the petitioner does not contend that his trial counsel were deficient in any way in 

uncovering mitigating circumstances. Nor could petitioner credibly do so, given 

the effort that went into that part of the defense by the time of the resentencing 

trial. Instead, the claim is one of those rare ones that concedes enough was done to 

discover mitigating circumstances and questions only the strategic decisions trial 

counsel made about which circumstances to present and how. 

I. FACTS AND PROCEDURAL HISTORY

The facts of this case have already been thoroughly set out by the Georgia 

Supreme Court in Nance v. State, 526 S.E.2d 560 (Ga. 2000), Nance v. State, 623 

S.E.2d 470 (Ga. 2005), and Humphrey v. Nance, 744 S.E.2d 706 (Ga. 2013). 

There is no point in our repeating all, or even most, of those facts. It is enough to 

note here that Nance robbed a bank, and in the process threatened to kill some of 

the tellers. Nance, 526 S.E.2d at 563. They were not killed, but Gabor Balogh, an 

innocent driver who was backing his car out of a parking spot at a nearby store,

was not as fortunate. Id. at 563–64. In order to steal Balogh’s car Nance shot him 

to death as he was pleading “No, no.” Id. at 564. 

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After a three-week trial in 1997, the jury returned a verdict finding Nance

guilty of malice murder and five other crimes and sentenced him to death for the 

murder. Id. at 562 n.1. The trial court entered a judgment pronouncing him guilty 

of the crimes and imposing a death sentence. Id. On direct appeal, the Georgia 

Supreme Court affirmed Nance’s convictions but reversed his death sentence “due 

to a prospective juror being improperly qualified to serve on the jury.” Nance, 623 

S.E.2d at 472. A new sentencing trial in 2002 resulted in a new death sentence, 

which the Georgia Supreme Court affirmed on direct appeal. Id. 

Nance then filed a petition for collateral relief in the state trial court. That 

court granted him relief from the death sentence after concluding that Nance had

received ineffective assistance of counsel at the resentencing trial. The State 

appealed, and in 2013 the Georgia Supreme Court reversed. Nance, 744 S.E.2d at 

709. At the end of 2013, Nance filed a 28 U.S.C. § 2254 petition in federal district 

court. In 2017 the district court denied relief but granted a certificate of 

appealability on two of Nance’s claims: “(1) his claim that his trial counsel [were]

ineffective in presenting his case in mitigation and (2) his claim that the trial court 

erred in requiring [him] to wear a stun belt during the [resentencing] trial.” 

II. DISCUSSION

The Georgia Supreme Court rejected Nance’s ineffective assistance claim 

when it reversed the state trial court’s grant of collateral relief, and it rejected his 

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stun belt claim when it affirmed the sentence on direct appeal from the 

resentencing trial. Nance, 744 S.E.2d at 720–31; Nance, 623 S.E.2d at 473. 

Because both rejections were on the merits, federal habeas relief is barred unless 

the rejection of one or both claims (1) “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) “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). 

It was meant to be, and is, difficult for a petitioner to prevail under that 

stringent standard. Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 

(2011); see also Burt v. Titlow, 571 U.S. 12, 19, 134 S. Ct. 10, 16 (2013)

(“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose 

claims have been adjudicated in state court.”). Section 2254(d) reflects Congress’ 

decision to restrict federal courts’ authority to grant habeas relief to cases in which 

the state court’s decision unquestionably conflicts with Supreme Court precedent.

Harrington, 562 U.S. at 102, 131 S. Ct. at 786. To justify federal habeas relief, the 

state court’s decision must be “so lacking in justification that there was an error 

. . . beyond any possibility for fairminded disagreement.” Burt, 571 U.S. at 19–20, 

134 S. Ct. at 16 (quotation marks omitted). “[I]f some fairminded jurists could 

agree with the state court’s decision, although others might disagree, federal 

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habeas relief must be denied.” Meders v. Warden, 911 F.3d 1335, 1349 (11th Cir. 

2019) (quoting Holsey v. Warden, 694 F.3d 1230, 1257 (11th Cir. 2012))

(quotation marks omitted).

A. The Ineffective Assistance of Counsel Claim

As we have mentioned, Nance does not contend that his trial counsel should 

have, or profitably could have, done more to investigate and discover mitigating 

circumstances evidence for use at his resentencing trial. And it is no wonder that 

he doesn’t. 

For the first trial, in addition to consulting with the attorneys who had 

represented Nance on the related federal bank robbery charges, and reviewing all 

of their files, Nance’s two counsel hired multiple investigators and mitigation 

specialists to help them conduct their investigation. As part of their investigation, 

counsel traveled to Nance’s hometown in Kansas to interview witnesses about his 

childhood, mental development, history of drug and alcohol abuse, and the abuse 

that he suffered at the hands of his adoptive father. They also consulted with two 

mental health professionals who evaluated Nance before his federal bank robbery 

trial, retained a toxicologist to calculate the concentration of tear gas in Nance’s 

car after dye packs that had been hidden in the stolen currency exploded,

interviewed at least four individuals with expertise in dye packs, subpoenaed 

information from the dye pack manufacturer, interviewed the state microanalyst 

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who tested Nance’s clothing, inspected the physical evidence in the case, visited 

the crime scene, examined the material the State provided during discovery, and 

interviewed the State’s experts. Not only that, but Nance’s counsel also obtained 

the state’s forensic report, emergency medical technician records, the murder 

victim’s autopsy report, police records, records from federal agencies, prison 

records, marriage and divorce records, birth and death certificates, medical records, 

school records, and probation records, among other documents that might be 

relevant to Nance’s case. It is as thorough an investigation into mitigating 

circumstances as we have ever seen.1

Then, in preparing for the resentencing trial, Nance’s counsel reviewed their 

performance in the original trial. Once again, they hired multiple investigators and 

a mitigation specialist to help them conduct their investigation. One of them

traveled to Nance’s hometown in Kansas and spent several days interviewing 

mitigation witnesses. They met with the psychologist who had testified in 

mitigation at Nance’s original trial and, after reviewing his testimony, they 

concluded that his testimony had not been helpful. Instead of using that 

psychologist again, with the help of the mitigation specialist, they retained an 

expert on prison adaptability who conducted neuropsychological and intellectual 

 1 Given the excellent job that they did, Nance’s two trial counsel deserve to be named 

here. They are Johnny R. Moore, a sole practitioner from Lawrenceville, Georgia, who is now 

retired, and Edwin J. Wilson, who is a sole practitioner from Snellville, Georgia. 

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testing on Nance, interviewed his mother and siblings, and reviewed his records. 

They believed that this expert’s testimony about Nance’s prison adaptability would 

be especially important to the jury because, in their experience, jurors deliberating 

between a life sentence or death “look into whether or not they think this person is 

going to be a danger to other prisoners and prison guards.” In that vein, they also 

located several deputies to testify about Nance’s good behavior in prison. Over 

several nights just before the resentencing trial, they met individually with all of 

the mitigation witnesses to prepare their testimony. 

Faced with the impossibility of finding fault with the investigation trial 

counsel conducted, Nance’s present attorneys have claimed that trial counsel were 

ineffective in how they used or failed to use all that they learned in their extensive 

investigation. More specifically, his present attorneys fault counsel for deciding 

not to present more of the mitigating circumstance evidence, especially more 

expert witnesses, than they did.

2

 2 Nance also argues that his trial counsel were ineffective at the resentencing hearing for 

failing to adequately present evidence of remorse. The district court denied that claim because it 

was unexhausted and procedurally defaulted. Nance did not contend otherwise in the district 

court, and he did not contest the district court’s ruling on that claim in his initial brief to this 

Court. It has been abandoned. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1353 (11th 

Cir. 2005) (explaining that a petitioner’s failure to address a procedural bar in his initial brief 

forfeits any argument against it); Mills v. Singletary, 63 F.3d 999, 1008 n.11 (11th Cir. 1995) 

(“The law in this circuit is clear that arguments not presented in the district court will not be 

considered for the first time on appeal.”). 

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It is especially difficult to succeed with an ineffective assistance claim 

questioning the strategic decisions of trial counsel who were informed of the 

available evidence. Even a dozen years before there was any AEDPA deference, 

the Supreme Court noted that “strategic choices made after thorough investigation 

of law and facts relevant to plausible options are virtually unchallengeable.” 

Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984); 

accord, e.g., Hinton v. Alabama, 571 U.S. 263, 274, 134 S. Ct. 1081, 1088 (2014)

(per curiam); Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420 

(2009).

Decisions about which experts to call and which issues to press during trial 

are, without a doubt, strategic. See Hinton, 571 U.S. at 275, 134 S. Ct. at 1089 

(“The selection of an expert witness is a paradigmatic example of the type of 

‘strategic choice’ that, when made ‘after thorough investigation of the law and 

facts,’ is ‘virtually unchallengeable.’”) (alterations and citation omitted); Waters v.

Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“Which witnesses, if any, 

to call, and when to call them, is the epitome of a strategic decision, and it is one 

that we will seldom, if ever, second guess.”); Raleigh v. Sec’y, Fla. Dep’t of Corr., 

827 F.3d 938, 956 (11th Cir. 2016) (same); see also Yarborough v. Gentry, 540 

U.S. 1, 8, 124 S. Ct. 1, 5 (2003) (per curiam) (“When counsel focuses on some 

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issues to the exclusion of others, there is a strong presumption that he did so for 

tactical reasons rather than through sheer neglect.”).

In the post-AEDPA era, it is even more difficult to obtain federal habeas 

relief on a strategy-questioning ineffective assistance claim, or any type of 

ineffectiveness claim for that matter. Strickland mandated one layer of deference 

to the decisions of trial counsel. 466 U.S. at 689, 104 S. Ct. at 2065 (“Judicial 

scrutiny of counsel’s performance must be highly deferential.”); id. (“Because of 

the difficulties inherent in making the evaluation, a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance . . . .”). When § 2254(d) was amended by AEDPA in 1996, 

that added another layer. See Harrington, 562 U.S. at 105, 131 S. Ct. at 788 (“The 

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and 

when the two apply in tandem, review is ‘doubly’ so.”) (citations omitted). Given 

the double deference due, it is a “rare case in which an ineffective assistance of 

counsel claim that was denied on the merits in state court is found to merit relief in 

a federal habeas proceeding.” Johnson v. Sec’y, DOC, 643 F.3d 907, 911 (11th 

Cir. 2011). And, for the reasons we have already discussed, it is rarer still for 

merit to be found in a claim that challenges a strategic decision of counsel. 

This is not one of those rare, or “rarer still,” cases. At the resentencing trial, 

Nance’s counsel called no fewer than 23 mitigation witnesses, whose testimony 

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covered, among other things, his difficult family life; his adoptive father’s 

alcoholism, aloofness, and occasionally abusive behavior; his long-term cognitive 

difficulties and low IQ; his history with drugs and alcohol, particularly the bad 

influence of his drug-using uncle; and Nance’s adaptability to prison life, including

both expert testimony that he was “very adaptable” and the testimony of seven 

sheriff’s deputies that he had been a “model” inmate in jail while awaiting his 

resentencing trial. Nance, 744 S.E.2d at 718–19, 720–21. Writing for the Georgia 

Supreme Court, Justice Hunstein thoroughly and convincingly explained why the 

strategic decisions that Nance’s counsel made regarding the resentencing trial did 

not fall outside the “wide range of reasonable professional assistance” that the 

Sixth Amendment requires. Harrington, 562 U.S. at 104, 131 S. Ct. at 787

(quotation marks omitted). Her opinion sets out in detail the evidence that trial 

counsel elicited on Nance’s intellectual impairments and the effect of the dye 

packs, and it explains why their decision not to call an expert about Nance’s 

possible brain damage was reasonable under the circumstances. Nance, 744 S.E.2d

at 720–29. It also explains why, even if counsel’s performance was somehow 

deficient, it did not prejudice Nance. Id. at 722–23, 728, 729–31. Having 

reviewed Justice Hunstein’s thoughtful opinion, we cannot say that it was 

objectively “unreasonable,” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 

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1933, 1939 (2007), or that every fairminded jurist would disagree with it, 

Harrington, 562 U.S. at 101, 131 S. Ct. at 786. Far from it.

B. The Stun Belt Claim

Nance also claims that the state trial court violated his constitutional rights 

by requiring him to wear a stun belt under his clothes during the resentencing trial

without holding a new evidentiary hearing to determine whether the restraint was 

necessary, and that the Georgia Supreme Court’s holding to the contrary conflicts

with clearly established federal law set out by the United States Supreme Court. It

did not; and it does not. 

A state court’s decision cannot be contrary to, or involve an unreasonable 

application of, “clearly established Federal law, as determined by the Supreme 

Court,” 28 U.S.C. § 2254(d)(1), unless there is a Supreme Court decision on point.

And there is none on this point. The Supreme Court has never addressed whether 

and under what circumstances a trial court may require a defendant to wear a stun 

belt. Although a petitioner need not have a Supreme Court precedent with 

identical facts to succeed, see Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 

2842, 2858 (2007), he does have to have one that is close enough to clearly 

establish the law that he claims the state courts unreasonably applied. The 

decisions Nance cites are not close; they are materially distinguishable. They do 

not clearly establish the law that his claim needs. See White v. Woodall, 572 U.S. 

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415, 427, 134 S. Ct. 1697, 1706–07 (2014) (“[R]elief is available under 

§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that 

a clearly established rule applies to a given set of facts that there could be no 

fairminded disagreement on the question.”) (quotation marks omitted). 

The first three decisions that Nance relies on all involve visible security 

restraints and the unique constitutional problems they present — namely, the 

impact that they have on the jury’s perception of the defendant and the public’s 

perception of the judicial process. In Deck v. Missouri, 544 U.S. 622, 630–33, 125 

S. Ct. 2007, 2013–14 (2005), the Court held that one reason state trial courts could 

not routinely shackle defendants during trial is that it would undermine the 

defendant’s presumption of innocence in the eyes of the jury, make the defendant 

appear dangerous to the jury, and threaten the dignity of the judicial process and 

the public’s trust in it. In Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 

1346 (1986), the Court held that it was not presumptively unconstitutional to seat 

additional uniformed officers in the front row of the courtroom because their 

presence would not necessarily impact the jurors’ impression of the defendant. 

The Court reasoned that because jurors “may just as easily believe that the officers 

are there to guard against disruptions emanating from outside the courtroom or to 

ensure that tense courtroom exchanges do not erupt into violence,” the officers

“need not be interpreted as a sign that [the defendant] is particularly dangerous or 

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culpable.” Id. And in Illinois v. Allen, 397 U.S. 337, 343–44, 90 S. Ct. 1057, 

1060–61 (1970), the Court held that a disorderly defendant could be removed from 

the courtroom and added in dicta that doing so was preferable to binding and 

gagging him because “the sight of shackles and gags might have a significant 

effect on the jury’s feelings about the defendant” and “be something of an affront 

to the very dignity and decorum of judicial proceedings.”

The visibility of the security measure at issue was central to the reasoning of 

all three of those decisions, and the Court limited its holdings accordingly. See

Deck, 544 U.S. at 624, 125 S. Ct. at 2009 (“We hold that the Constitution forbids 

the use of visible shackles during the penalty [and guilt] phase . . . unless that use 

is justified by an essential state interest . . . specific to the defendant on trial.”) 

(quotation marks omitted, first emphasis added); id. at 629, 125 S. Ct. at 2012 

(“[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints 

visible to the jury absent a trial court determination . . . that they are justified by a 

state interest specific to a particular trial.”) (emphasis added); id. at 632, 125 S. Ct. 

at 2014 (“[G]iven their prejudicial effect, due 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, 125 S. Ct. at 2014 (“[C]ourts cannot 

routinely place defendants in shackles or other physical restraints visible to the jury

during the penalty phase of a capital proceeding.”) (emphasis added); see also

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Holbrook, 475 U.S. at 568–69, 106 S. Ct. at 1345–46 (“The first issue to be 

considered here is thus whether the conspicuous, or at least noticeable, deployment 

of security personnel in a courtroom during trial . . . should be permitted only 

where justified by an essential state interest specific to each trial.”) (emphasis 

added); id. at 569, 106 S. Ct. at 1346 (“[R]eason, principle, and common human 

experience counsel against a presumption that any use of identifiable security 

guards in the courtroom is inherently prejudicial.”) (citations and quotation marks 

omitted, emphasis added); id. at 572, 106 S. Ct. at 1347 (explaining that federal 

courts can only “look at the scene presented to jurors and determine whether what 

they saw was so inherently prejudicial as to pose an unacceptable threat to 

defendant’s right to a fair trial”) (emphasis added). And in Allen the Court 

explained that “the sight of shackles and gags” might affect the jury to the 

detriment of the defendant as well as be an affront to the dignity and decorum of 

the trial. 397 U.S. at 344, 90 S. Ct. at 1061 (emphasis added). 

The Georgia Supreme Court concluded that Nance’s stun belt was not

visible to the jury or the public because it was worn under his clothes. See Nance, 

623 S.E.2d at 473 (“Unlike shackles, [the stun belt] is worn under the prisoner’s 

clothes and is not visible to the jury.”). And Nance has not pointed to any 

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evidence to show that finding was “an unreasonable determination of the facts in 

light of the evidence,” 28 U.S.C. § 2254(d)(2).

3

 

The holdings in Deck and Holbrook, as well as the dicta in Allen, are not 

applicable to security devices or measures that are not visible. And a federal 

habeas court’s focus is on Supreme Court holdings, not potential extensions of 

them. See Woodall, 572 U.S. at 426, 134 S. Ct. at 1706 (“Section 2254(d)(1) 

provides a remedy for instances in which a state court unreasonably applies this 

Court’s precedent; it does not require state courts to extend that precedent or 

license federal courts to treat the failure to do so as error.”); id. at 419, 134 S.Ct. at 

1701 (“Clearly established Federal law for purposes of § 2254(d)(1) includes only 

the holdings, as opposed to the dicta, of this Court’s decisions.”) (quotation marks 

and alteration omitted); see also Carey v. Musladin, 549 U.S. 70, 76–77, 127 S. Ct. 

649, 653–54 (2006) (holding that a state court did not unreasonably apply clearly 

established federal law because the Court had not yet extended its existing 

precedent to the conduct at issue in the petitioner’s case). At the very least, 

 3 In the final paragraph of his brief to this Court, Nance does argue that the Georgia 

Supreme Court’s rejection of his stun belt claim was based on an unreasonable determination of 

the facts. But he makes no assertion that the stun belt was visible. Instead, he argues that a 

factual error marred the reasoning that led the Georgia Supreme Court to affirm the denial of 

another evidentiary hearing on whether he should be required to wear a stun belt. The Georgia 

Supreme Court stated that “the only change in circumstance since the 1996 hearing offered by 

Nance was the passage of time and this was obvious to the trial court without the need for a 

second hearing.” Nance, 623 S.E.2d at 473. Far from being unreasonable, this determination 

was accurate; Nance never identified, much less proved, any substantial change in circumstances 

in support of his request for a new hearing. 

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fairminded jurists could disagree about whether the holdings of the three decisions 

that Nance primarily relies on clearly establish that it was constitutional error for 

the state trial court to require Nance to wear a stun belt that was not visible to the 

jury. 

The other Supreme Court decision that Nance points to is Riggins v. 

Nevada, 504 U.S. 127, 112 S. Ct. 1810 (1992). The holding of that decision is 

irrelevant to Nance’s case. In Riggins the Supreme Court held that a state trial 

court could force a mentally ill inmate to continue taking prescribed antipsychotic 

drugs during the course of his trial if there was an overriding justification and the 

drugs were medically appropriate. Id. at 134–35, 112 S. Ct. at 1815. The Court 

did not address security restraints and did not purport to establish a broader rule 

about court practices that might otherwise interfere with an inmate’s ability to 

participate in the trial. Indeed, the Court noted that its decision was limited to the 

facts in the record of that case. Id. at 133, 112 S. Ct. at 1814 (“The record in this 

case narrowly defines the issues before us.”). 

Finally, Nance cites this Court’s own decision in United States v. Durham, 

287 F.3d 1297, 1306 (11th Cir. 2002), where we held that the “decision to use a 

stun belt must be subjected to at least the same close judicial scrutiny required for 

the imposition of other physical restraints.” (Quotation marks omitted.) Unlike 

the Supreme Court decisions Nance relies on, our Durham decision actually does 

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involve stun belts. If Nance were a federal prisoner, § 2254(d)(1) would not apply 

and Durham might require us to vacate his sentence. But he is not a federal 

prisoner and § 2254(d)(1) does apply. As a result, the “clearly established Federal 

law” is limited to that which has been “determined by the Supreme Court of the 

United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court has implied that it is 

getting a little tired of reiterating that directive “time and again.” See Lopez v. 

Smith, 574 U.S. ___, 135 S. Ct. 1, 2 (2014) (per curiam) (“We have emphasized, 

time and again, that [AEDPA] prohibits the federal courts of appeals from relying 

on their own precedent to conclude that a particular constitutional principle is 

‘clearly established.’”) (citations omitted); Parker v. Matthews, 567 U.S. 37, 48–

49, 132 S. Ct. 2148, 2155 (2012) (per curiam) (“[C]ircuit precedent does not 

constitute ‘clearly established Federal law, as determined by the Supreme Court.’ 

It therefore cannot form the basis for habeas relief under AEDPA.”) (citation 

omitted); Glebe v. Frost, 574 U.S. ___, 135 S. Ct. 429, 431 (2014) (per curiam) 

(same); Renico v. Lett, 559 U.S. 766, 778–79, 130 S. Ct. 1855, 1865–66 (2010) 

(same); Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (same); see also, 

e.g, Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 764 n.14 (11th Cir. 2010) 

(“A federal court of appeals decision, even one with a holding directly on point, 

does not clearly establish federal law for § 2254(d)(1) purposes.”). 

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Nance argues that we should sidestep this non-side-steppable rule by holding

that Durham is enough because it “demonstrate[s]” the law that the Supreme Court 

has clearly established. Under Nance’s “reasoning,” every circuit court decision 

on any point would demonstrate the law the Supreme Court has clearly established 

on that point, even if the Supreme Court did not yet know it. And § 2254(d)(1) 

would be effectively rewritten to insert before the semicolon the words “or by any 

federal court of appeals.” And we would need to overrule every one of those 

decisions in which the Supreme Court has told us “time and again” that the 

decisions of federal courts of appeals do not clearly establish federal law for 

§ 2254(d)(1) purposes. All of that is beyond our authority. So we will follow the 

Supreme Court’s instruction that circuit precedent may not be used “to refine or 

sharpen a general principle of Supreme Court jurisprudence into a specific legal 

rule that [the Supreme Court] has not announced.” Marshall v. Rogers, 569 U.S.

58, 64, 133 S. Ct. 1446, 1450 (2013). 

The Supreme Court — the only Court that can clearly establish federal law 

for purposes of habeas review — has not yet decided whether the use of stun belts 

(or materially similar restraints) is constrained by the Constitution, nor has it

established a standard for evaluating such claims. For that reason, the Georgia 

Supreme Court’s decision on this issue is not “contrary to” and does not involve 

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“an unreasonable application of, clearly established Federal law, as determined by 

the Supreme Court of the United States” under § 2254(d)(1). 

AFFIRMED.

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