Walker v. Martel, No. 11-99006 (03-07-13) (Silverman with Graber; concurrence and dissent by Gould)

The petitioner wore a knee restraint during his capital trial.  Jurors noticed it, especially the petitioner's limping to and from the stand, where he testified.  No record was made of the need for such a restraint, and his lawyer never objected.  Raising IAC and due process in the district court, petitioner received relief.  The 9th, however, knee-capped both claims.  The 9th held that under this procedurally defaulted IAC claim, the state courts, whose ruling is viewed in the dark shadows of AEDPA deference, was reasonable in finding no prejudice.  The shackling, although could be prejudicial, was somewhat unobtrusive and, according the majority, trivial in the weight of evidence.  It would not have mattered in the guilt or sentencing phase.  Because there was no IAC, then there was no due process violation.  Gould, concurring in the guilt reversal, dissented as to the sentencing phase.  Gould would find prejudice, and affirm the granting of a new sentencing phase, where the jury would not be prejudiced by the shackling in its weighing of aggravating factors with mitigating factors of family relationships and youth.

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