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SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

FREDERICK R. WHATLEY v. WARDEN, GEORGIA 

DIAGNOSTIC AND CLASSIFICATION PRISON 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

No. 20–363. Decided April 19, 2021 

The petition for a writ of certiorari is denied. 

JUSTICE SOTOMAYOR, dissenting from denial of certiorari. 

A jury sentenced petitioner Frederick R. Whatley to 

death the morning after watching him reenact a murder

while wearing unnecessary leg irons and manacles. When 

the State called Whatley to the stand during the sentencing

proceeding, his attorney waved away the prosecutor’s concerns about the visible shackles, then sat silent when the 

prosecutor handed Whatley a fake gun and asked him to 

reenact the murder for which he had just been convicted.

Defense counsel’s unreasonable failure to object to Whatley’s shackling was plainly prejudicial under this Court’s

precedent. I would grant the petition, summarily reverse,

and remand for a new sentencing proceeding. 

I 

 Following Whatley’s conviction for robbing and killing 

the owner of a Georgia bait shop and liquor store, the State

asked the jury to impose a sentence of death. The sentencing proceeding involved just one day of evidence. The State 

relied on two, conceded statutory aggravating circumstances: Whatley committed the murder (1) during an

armed robbery, Ga. Code Ann. §17–10–30(b)(2) (Supp.

2019), and (2) after having “escaped from [a] place of lawful

confinement,” §17–10–30(b)(9), because he had walked

away from a halfway house to which he had been paroled a

few months earlier. The State further showed that Whatley 

had prior convictions for forging a check, threatening a man 
 

 

2 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND 

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SOTOMAYOR, J., dissenting 

with a shotgun and taking his wallet, and simple assault.

Finally, the State elicited testimony from a sheriff ’s deputy

that Whatley once wondered aloud whether he would miss 

the Super Bowl while in custody. Electronic Case Filing in 

Whatley v. Upton, No. 3:09–cv–00074, Doc. 7–9, (ND Ga.,

July 28, 2009) pp. 15, 22 (ECF). This, the State argued,

proved Whatley felt no remorse for his crimes. ECF Doc. 7– 

11, at 31. 

Defense counsel called a number of Whatley’s friends and 

family, followed by Whatley himself. Whatley had worn 

shackles throughout the guilt phase, but the court took care 

to ensure the jury did not see the restraints. See, e.g., ECF 

Doc. 7–5, at 110, 135–138. When defense counsel called 

Whatley to testify at sentencing, the prosecutor sensibly 

asked if the court needed to “take the jury out before he 

takes the stand” in light of the “chains” and “shackles on 

him.” Defense counsel waved off the prosecutor’s concern. 

“Well, he’s convicted now,” he shrugged, referencing the

jury’s earlier guilty verdict. The trial court echoed that conclusion: “He’s been convicted.” ECF Doc. 7–9, at 106. The 

court never found that the restraints were even necessary, 

much less that there was no way to hide them from the jury.

Whatley hobbled to the witness stand. His leg irons and 

cuffs were in plain view. He testified for several hours in 

those restraints. Among other things, Whatley contested 

the State’s version of the shooting for which he had been 

convicted. The State claimed that Whatley tried to execute

the witnesses to his crime after the storeowner gave him

the money, shooting the owner in the chest and nearly

shooting an employee but hitting the counter instead. The 

storeowner, mortally wounded, pulled his own gun. Whatley ran, and the two exchanged shots in the parking lot before the owner died. Whatley, however, testified that the 

storeowner pulled a gun immediately after giving him the 

money, and Whatley reflexively fired a single shot that hit 

the counter before running away. The owner gave chase, 
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SOTOMAYOR, J., dissenting 

and Whatley killed him during the shootout outside. 

On cross-examination, the prosecutor asked Whatley to

“step down” from the witness box to demonstrate his version of events. The prosecutor handed Whatley a “toy pistol,” noting, “Now, this is not the type of gun you had that

day. I hope you’ll understand why I don’t want to give you

a real gun.” ECF Doc. 7–10, at 13. He told Whatley to

“show this jury how you held a gun on [the victim] and told 

him to give you that money. Now, you go ahead and show

them. You pretend I’m [the victim]. You pull the gun on 

me and show them how you did it.” Id., at 14. With no 

objection from his attorney, Whatley reenacted the armed

robbery and shooting, shuffling around the courtroom with

shackles on his legs and waving the gun around with cuffs 

on his wrists. The prosecutor maintained a running commentary. See ibid. (“Show me how you pointed it at him”); 

id., at 15 (“I want you to point the gun at me just like you 

did him that day”). He ended his cross-examination shortly 

thereafter. Id., at 19. Defense counsel never objected. 

The next morning, the prosecutor argued in closing that 

the jury should sentence Whatley to death primarily because he posed a severe threat of future violence. See, e.g.,

ECF Doc. 7–11, at 20 (“[I]f you think that a guard gets between him and life and he won’t kill a guard, you’d better 

think again”). The court gave no curative instruction about

Whatley’s shackling. The jury deliberated for 90 minutes 

before recommending the death penalty.

On direct appeal, the Georgia Supreme Court found that

Whatley forfeited his claim that his visible shackling violated his due process rights because his lawyer affirmatively waived any objection despite the prosecutor’s stated 

concerns. Whatley v. State, 270 Ga. 296, 302, 509 S. E. 2d 

45, 52 (1998).

Whatley then filed a state habeas petition, arguing that

his trial attorney’s failure to object to his unnecessary

shackling constituted ineffective assistance of counsel. The 
 

 

4 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND 

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SOTOMAYOR, J., dissenting 

Georgia Supreme Court rejected the petition. Whatley v. 

Terry, 284 Ga. 555, 571–572, 668 S. E. 2d 651, 663 (2008).

While acknowledging that unnecessary shackling is presumptively prejudicial when an objection is properly preserved, the court held that defendants retain their burden 

to show prejudice when they claim trial counsel was ineffective for failing to object. Ibid. The court summarily concluded that Whatley had not made that showing. Ibid. 

Whatley filed a federal habeas petition, arguing that the

state court’s denial of his ineffective-assistance claim was 

contrary to and an unreasonable application of clearly established federal law. The Eleventh Circuit disagreed. 927 

F. 3d 1150, 1184–1187 (2019). The court explained at

length why Whatley was not entitled to a presumption of

prejudice, and then determined in one short paragraph that

Whatley’s “violent criminal history” and failure to “turn

things around,” together with the crimes at issue, rendered 

the shackling “trivial.” Id., at 1187. 

Judge Jordan dissented. In his view, the state court’s ruling might have been reasonable “had the shackles merely 

been visible to the jury when Mr. Whatley walked to the 

witness box. Or if the trial court had given a curative instruction to the jury about the restraints. Or if Mr. Whatley

was not forced to re-enact the murder in front of the jury

while the prosecutor played the role of the victim. Or if the 

prosecutor had not explicitly made Mr. Whatley’s future

dangerousness a key theme in favor of his request for 

death.” Id., at 1193. But with these facts taken together,

prejudice was “undeniable.” Ibid. 

II 

To succeed on an ineffective-assistance-of-counsel claim, 

Whatley must show that his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U. S. 

668, 688, 694 (1984). Prejudice means a “reasonable prob-
 

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SOTOMAYOR, J., dissenting 

ability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 

694. Because Georgia requires unanimity to impose a capital sentence, Whatley need only show a reasonable probability that one juror would have voted against the death 

penalty absent his counsel’s deficiency.1 See Wiggins v. 

Smith, 539 U. S. 510, 537 (2003). However, relief is only

available under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) if the state court’s conclusion that 

any deficiency was not prejudicial “was contrary to, or involved an unreasonable application of, clearly established 

Federal law.” 28 U. S. C. §2254(d)(1). Under this standard, 

federal courts do not defer to a “state-court decision that 

correctly identifies the governing legal rule but applies it 

unreasonably to the facts of a particular prisoner’s case.” 

Williams v. Taylor, 529 U. S. 362, 407–408 (2000). 

III 

A 

This Court long ago recognized that “no person should be 

—————— 1Georgia argued in state court that “counsel should not be regarded as 

having performed deficiently by failing to object to the shackling, because

the practice had not yet been established as unconstitutional.” Whatley 

v. Terry, 284 Ga. 555, 571, 668 S. E. 2d 651, 663 (2008). The Georgia

Supreme Court all but rejected that argument, as it “had already

strongly suggested in dictum that it was unconstitutional to place visible

shackles on a death penalty defendant during the sentencing phase without a showing of particular need.” Ibid., and n. 38 (citing Moon v. State, 

258 Ga. 748, 755, 375 S. E. 2d 442, 449 (1988)). Given its conclusion on 

prejudice, however, the court simply assumed deficiency. 284 Ga., at 

571, 668 S. E. 2d, at 663. The State wisely does not raise this issue here. 

In addition to state-court decisions, this Court had several times emphasized the prejudicial nature of shackling, well before the trial in this case.

See Illinois v. Allen, 397 U. S. 337, 344 (1970); Holbrook v. Flynn, 475 

U. S. 560, 568–569 (1986). Indeed, the prosecutor himself suggested that 

the court excuse the jury so Whatley could take the stand outside their 

presence, thus hiding his chains. ECF Doc. 7–9, at 106. Certainly, a 

reasonable defense attorney would not have taken it upon himself to 

overrule the prosecutor’s objection to the defendant’s unfair treatment. 
6 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND 

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SOTOMAYOR, J., dissenting 

tried while shackled . . . except as a last resort,” in part because “the sight of shackles . . . might have a significant effect on the jury’s feelings about the defendant.” Illinois v. 

Allen, 397 U. S. 337, 344 (1970). “Shackling” is “the sort of

inherently prejudicial practice that . . . should be permitted

only where justified by an essential state interest specific 

to each trial.” Holbrook v. Flynn, 475 U. S. 560, 568–569 

(1986).

In 2005, this Court held that needless, visible shackling 

at sentencing likewise violates a capital defendant’s right 

to due process under the Fifth and Fourteenth Amendments. Deck v. Missouri, 544 U. S. 622, 633 (2005). In that 

case, Carman Deck was visibly “shackled with leg irons, 

handcuffs, and a belly chain” during his capital sentencing,

over his attorney’s objection and with no finding of specific 

need. Id., at 625. This Court explained in no uncertain

terms that shackling is highly likely to be prejudicial at a 

capital sentencing: 

“The Court has stressed the acute need for reliable decisionmaking when the death penalty is at issue. The 

appearance of the offender during the penalty phase in 

shackles, however, almost inevitably implies to a jury,

as a matter of common sense, that court authorities 

consider the offender a danger to the community—often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the 

State does not specifically argue the point. It also almost inevitably affects adversely the jury’s perception

of the character of the defendant. And it thereby inevitably undermines the jury’s ability to weigh accurately

all relevant considerations—considerations that are often unquantifiable and elusive—when it determines 

whether a defendant deserves death.” Id., at 632–633 

(citations and internal quotation marks omitted). 

Because these prejudicial effects “‘cannot be shown from 
 

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SOTOMAYOR, J., dissenting 

a trial transcript,’” the Court in Deck further held that 

“where 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.” Id., at 635. The burden 

instead rests on the State to prove the shackling harmless. 

Ibid. 

B 

To be sure, Deck does not require reviewing courts to presume prejudice when the defendant fails to object to his

shackling at trial. This Court has not decided to what extent such a presumption applies on collateral review, in the

context of an ineffective assistance of counsel claim. Cf. 

Weaver v. Massachusetts, 582 U. S. ___, ___ (2017) (slip op., 

at 13). Both the Georgia Supreme Court and Eleventh Circuit held that the Deck presumption does not apply to ineffective-assistance-of-counsel claims. 284 Ga., at 571–572, 

668 S. E. 2d, at 663; 927 F. 3d, at 1184–1187. That was not 

a clearly erroneous application of federal law. 

What was clearly unreasonable, however, was to ignore

entirely the ways in which visible shackling is likely to distort the outcome of a capital sentencing proceeding. As 

Deck explains, reasonable jurors confronted with a defendant in chains will assume court officials have determined 

those chains were necessary to prevent the defendant from

trying to escape or attack the lawyers, the judge, or even

the jurors. Chains paint a defendant as an immediate 

threat. Jurors faced with a defendant in shackles will find 

it more difficult to consider the defendant as a whole person

and to weigh mitigating evidence impartially. If jurors

think the court does not trust a capital defendant to avoid

violence at his own sentencing proceeding, with his life on 

the line, they are unlikely to trust him to do so while serving 

a life sentence with no hope of parole. “In these ways, the

use of shackles can be a thumb on death’s side of the scale.” 
8 WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND 

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SOTOMAYOR, J., dissenting 

Deck, 544 U. S., at 633 (alteration and internal quotation 

marks omitted). 

Absent a presumption, this may not matter in some 

cases. Other facts may overwhelmingly suggest a defendant’s future dangerousness, or the circumstances surrounding the shackling may indicate it likely did not matter. Reasonable jurists faithfully applying Strickland in light of the 

observations in Deck might then disagree about whether

counsel’s failure to object may have caused prejudice. Under AEDPA, federal courts should defer to state-court decisions finding no prejudice in such cases.

That is not what happened here. For the grand finale of

his cross-examination, the prosecutor handed Whatley a

fake gun and had him reenact the murder, with the prosecutor playing the victim. Whatley’s chains clanked and rattled with every move, constantly reminding the jury that 

the court apparently believed he might do more than just 

pretend to kill someone in the courtroom if left unrestrained. Leaving nothing to implication, the prosecutor remarked, “I hope you’ll understand why I don’t want to give 

you a real gun.” ECF Doc. 7–10, at 13. 

The prosecutor hammered this point home at length in

closing. “Frederick Whatley,” he told the jury, “is going to

kill somebody else unless you execute him.” ECF Doc. 7– 

11, at 17. Prison was “only going to make him smarter and 

meaner.” Id., at 27. “[D]o you think he won’t kill a guard if

that guard stands between him and freedom? He will be a 

threat until the day he is executed.” Ibid. “This man should 

be given the death penalty because he is dangerous, he has

had a history of violence, he’s never going to get any better

than what you’ve seen right now.” Id., at 28. 

Whatley’s chains, fresh in the jury’s mind from the previous afternoon’s spectacle, powerfully corroborated the prosecutor’s argument. It is hard to imagine a more prejudicial 

example of needless shackling. 
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SOTOMAYOR, J., dissenting 

On the other hand, Whatley’s criminal history was relatively minor and largely from his teenage years. The statutory aggravators in his case were less serious than in 

many other capital cases.2 The State’s only evidence of lack

of remorse was that Whatley likes football. The evidence at 

the sentencing proceeding also showed that Whatley’s

mother abandoned him, he never knew his father, and he 

was experiencing homelessness when he committed this 

crime. Whatley’s friends and family testified to his redeeming qualities and begged the jury to show mercy. If Whatley

had testified free of chains, it is reasonably probable that at

least one juror would have done so. 

On these facts, defense counsel’s failure to object to Whatley’s unnecessary shackling renders his death sentence not

only unreliable, but unconstitutional. The only way to conclude otherwise is to disregard this Court’s clear precedent 

about the likely effect of visible, unnecessary shackling. Because I would not allow the State to put Frederick Whatley 

to death based on such a constitutionally flawed sentencing

proceeding, I respectfully dissent. 

—————— 2See, e.g., Ga. Code Ann. §17–10–30(b)(7) (authorizing the death penalty for those who commit murders that involve “torture, depravity of 

mind, or an aggravated battery”); §17–10–30(b)(11) (authorizing the 

death penalty for those who commit murder and have prior convictions 

for “rape, aggravated sodomy, aggravated child molestation, or aggravated sexual battery”).