In the
    United States Court of Appeals
                 For the Seventh Circuit
                            ____________

No. 05-2747
MATTHEW E. WRINKLES,
                                                Petitioner-Appellant,
                                   v.

ED BUSS, Superintendent,1
                                                Respondent-Appellee.
                            ____________
               Appeal from the United States District Court
       for the Southern District of Indiana, Indianapolis Division.
               No. 01 C 1668—John Daniel Tinder, Judge.
                            ____________
     ARGUED SEPTEMBER 15, 2006—DECIDED AUGUST 12, 2008
                            ____________


    Before FLAUM, KANNE, and ROVNER, Circuit Judges.
  KANNE, Circuit Judge. This case is before the court on
collateral review. In 1995, a Vanderburgh, Indiana, Cir-
cuit Court jury convicted Matthew Wrinkles of murdering
his wife, his wife’s brother, and his sister-in-law. The jury
recommended and Judge Richard L. Young imposed a
death sentence. Wrinkles unsuccessfully appealed his
conviction and sentence to the Indiana Supreme Court, and


1
  Ed Buss, who became superintendent of the Indiana State
Prison after this appeal was filed, has been substituted for
Daniel McBride as the appellee. See Fed. R. App. P. 43(c)(2).
2                                                No. 05-2747

thereafter, Judge Carl Heldt of the Vanderburgh Circuit
Court denied his request for post-conviction relief. Wrin-
kles then filed a petition for a writ of habeas corpus, 28
U.S.C. § 2254, in the United States District Court for the
Southern District of Indiana. Wrinkles argued that his
constitutional rights were violated during the trial and
sentencing proceedings because, pursuant to the Indiana
trial judge’s blanket policy of restraint, he was required to
wear a stun belt that he alleges was visible to the jury.
  Wrinkles was barred from raising a direct challenge to
the constitutionality of the stun belt because he procedur-
ally defaulted the claim in state court. Wrinkles instead
claimed that he received ineffective assistance of coun-
sel under Strickland v. Washington, 

(1984),
because his counsel failed to object to the imposition of
the stun-belt restraint. With respect to the prejudice prong
of Strickland, Wrinkles claimed that the jurors saw the
stun belt, and that he presumptively suffered prejudice
as a result. United States District Judge, John Daniel Tinder,
concluded that Wrinkles could not demonstrate prejudice
because the jury was not aware of the stun belt.
  Wrinkles’s habeas claim hinges on whether the jurors
saw the stun belt during the trial and the sentencing
proceedings. One passage in the Indiana Supreme
Court’s opinion—actually, one sentence—complicates
our review. We ultimately conclude that the Indiana
Supreme Court made no factual finding regarding the
belt’s visibility. The last state-court decision on point—the
post-conviction court decision—holds that the jurors
did not see the belt. We defer to that finding and agree with
the district court that Wrinkles suffered no prejudice from
his counsels’ failure to object to the stun belt.
No. 05-2747                                                 3

                        I. HISTORY
  A. Factual history
  By the spring of 1994, the marriage of Matthew and
Debbie Wrinkles was coming to an end. On May 3, 1994,
police were dispatched to the Wrinkles’ home in re-
sponse to a report of gunfire. Wrinkles told the responding
officers that he and Debbie were having financial and
marital problems and that he would kill Debbie if she
ever left him. David Plemmons, a witness to the events,
would later testify that Wrinkles pointed a gun at Debbie
during the argument and the gun discharged when
Debbie grabbed it. According to Plemmons, Wrinkles
hid the gun when the police arrived, and Debbie and
Plemmons “covered” for Wrinkles by lying to the police
about the incident. The Indiana Supreme Court later
characterized the Wrinkles’ relationship as “stormy and
often violent.” Wrinkles v. State, 

, 1159 (Ind.
1997) (“Wrinkles I”), cert. denied, 

(1998).
  In June 1994, Debbie moved herself and the
children—Lindsay, age thirteen, and Seth, age eight—to the
home of Mark and Natalie Fulkerson, Debbie’s brother
and sister-in-law. This move marked the end of Wrinkles
and Debbie’s marriage, and Debbie filed for divorce on
June 30. A few weeks later, on July 20, Wrinkles and
Debbie attended a provisional divorce hearing, during
which it was decided that Debbie would have custody
of the children and Wrinkles would have visitation
rights. Wrinkles and Debbie agreed to a meet at a fast-food
restaurant later that day so that Wrinkles could see his
children. But Debbie did not show that afternoon as
scheduled.
  Wrinkles had hit a low point in his life. He had a
close relationship with his children and he believed that
4                                             No. 05-2747

his estranged wife and her family were conspiring to
deny him access to the children. In addition to his marital
problems, the automotive-repair business that he ran out
of his garage was failing. Several zoning complaints had
been made against his business and he was forced to
shut down. Wrinkles had also been dependent on metham-
phetamine for some time, and this dependence caused
him to become easily agitated and paranoid. In addition
to his mental and emotional decay, his drug use caused
him to wither away physically. Wrinkles’s addiction
kept him from sleeping, except sporadically, and he lost
sixty pounds in a three-month period.
  Wrinkles’s obvious decline had begun to terrify Debbie.
Her friend would testify at trial that Debbie had become
a “nervous wreck.” 

She had begun to take
“medication [and] every time she heard a noise she
would jump cause she was scared. And . . . she had to
sleep with a gun underneath her pillow [because] she
was scared” of Wrinkles.
  Debbie’s failure to appear with the children at the fast-
food restaurant on July 20 set into motion a tragic series
of events. Wrinkles called to complain to his divorce
attorney, who told Wrinkles that nothing could be done
until the next day because the courts had already closed.
Wrinkles then called the Fulkerson home to speak with
Debbie, but she was not there. Debbie returned Wrinkles’s
call later that evening, but she did not get an answer.
Eventually, Debbie and the rest of the Fulkerson house-
hold turned in for the night on July 20. Given the growing
tension in their lives, it was an uneasy rest; both Mark
Fulkerson and Debbie had guns with them in their bed-
rooms.
  Wrinkles drove to the Fulkerson home at approximately
2:00 a.m. on July 21, and parked his truck about one block
No. 05-2747                                               5

from the home. He was wearing camouflage clothing, had
painted his face, and was armed with a .357 magnum
revolver and a knife. He climbed over a fence into the
Fulkersons’ backyard. He cut the telephone wires and
kicked in the back door, entering the home.
  Wrinkles went down the hallway and into the
Fulkersons’ bedroom, where he shot Mark Fulkerson
four times, killing him in front of his three-year-old son,
Matthew. Debbie was awakened by the gunshots. She
grabbed her gun and ran to the hallway where she con-
fronted Wrinkles. She fired and hit him in the arm, knock-
ing herself down in the process. At that point, Lindsay
Wrinkles had also awakened and had come upon the
confrontation between her parents. She saw that her
father was about to shoot her mother and she “pleaded,
‘Dad, please don’t shoot Mom.’ ” Wrinkles v. State, 

, 1186 (Ind. 2001) (“Wrinkles II”), cert. denied,

(2002). Wrinkles responded by telling
Lindsay to “shut up,” and then he promptly shot Debbie.
  During the commotion, Natalie Fulkerson made her
way to the living room and out the front door, in an
attempt to flee. Wrinkles gave chase and caught Natalie on
the front porch, shooting her in her face at close range.
Natalie died on the porch. Wrinkles fled. The Fulkersons’
ten-year-old daughter, Kimberly, and her 19-year-old
cousin, Tracy, ran to neighbors’ houses for help.
  Wrinkles was arrested later that morning in a neighbor-
ing county and was charged with three counts of murder,
pursuant to Ind. Code § 35-42-1-1(1), for knowingly
killing his victims. The state filed notice of its intent to
seek the death penalty on July 28, 1994. Under Indiana
law, the state can seek the death penalty when a defend-
ant commits multiple murders. Ind. Code § 35-50-2-9(b)(8).
6                                              No. 05-2747

B. Procedural history
  Based on their pre-trial investigations, Wrinkles’s
attorneys’ theory of his defense centered on the fact that,
at the time of the crimes, Wrinkles was in the midst of a
very difficult period in his life. The attorneys decided to
stress the loss of Wrinkles’s business, the break-up of his
marriage, and his perception that Debbie and the
Fulkersons were trying to keep his children from him. The
defense argued that Wrinkles had broken into the
Fulkersons’ home with the intent of retrieving his children
because he feared that he would never see them again—a
paranoia magnified by his methamphetamine addiction.
The paranoia was further enhanced when, according to
Wrinkles, his victims confronted him with guns when he
entered the home. Wrinkles also would cast Debbie as
the aggressor in their confrontation in the hallway; he
would testify that Debbie said, “Die, you bastard, die,”
when she shot him. Wrinkles 

.
  This strategy was necessary given the facts of the
case. First, there was no dispute that Wrinkles had shot the
three victims, and therefore Wrinkles’s motivation for
the shootings would be the primary issue at trial. And
Wrinkles’s state of mind would likewise be a significant
issue for sentencing in terms of whether the death penalty
or a lesser sentence was appropriate. In addition, the
attorneys concluded that although Wrinkles’s mental
state might impact his culpability and sentence, the facts
did not support an insanity defense. A neuropsychologist
enlisted by Wrinkles’s attorneys concluded that, while
Wrinkles suffered from a Mixed Personality Disorder
and a Delusional Disorder that became more intense
during the weeks leading up to the shootings, and while
Wrinkles’s judgment was substantially impaired at the
No. 05-2747                                                7

time of the shootings, he was nonetheless sane because
he had known what he was doing and was able to con-
form his conduct to the requirements of the law.
   Before trial commenced, the trial judge informed
Wrinkles’s counsel that Wrinkles would have to wear some
sort of restraining device—either shackles or a stun belt.
The trial court did not make a specific finding that Wrin-
kles presented a risk of danger, escape, or court-
room disruption. But “the trial court apparently [had] a
policy of requiring defendants to wear restraints regard-
less of whether they [had] previously exhibited any
conduct justifying restraints.” Wrinkles 

. According to the Indiana Supreme Court in Wrinkles
II, a stun belt is a restraining device that is placed around
an individual’s waist as an alternative to leg-irons or
shackles. The battery-powered belt has two prongs that
are placed over the wearer’s kidney region. A court bailiff
or other law-enforcement officer can activate the belt by
a remote control and, once activated, it sends a shock to
the wearer that cannot be stopped. The electrical shock
travels through the body via blood channels and nerve
pathways. The shock knocks down most people, incapaci-
tates them for up to 45 minutes, and causes them to
shake uncontrollably. The individual may also have
uncontrollable defecation and urination, irregular heart-
beats, seizures, and welts, due to the shock. Wrinkles’s
attorneys did not object to the mandatory restraint
policy. When faced with the choice of shackles or a
stun belt, they opted for the latter, reasoning that there
was less likelihood that the jury would see the belt during
trial.
 A jury found Wrinkles guilty of all three counts of
murder, and recommended the death penalty; the trial
8                                                No. 05-2747

judge sentenced Wrinkles to death. Wrinkles appealed
his conviction and death sentence, raising a number of
evidentiary claims and challenging both Indiana’s death-
penalty statute and his own sentence. He did not, how-
ever, appeal the trial court’s blanket policy of requiring
him to wear the stun belt at trial. Unpersuaded, the Indi-
ana Supreme Court affirmed Wrinkles’s convictions
and sentence (Wrinkles I).
  Thereafter, Wrinkles filed a petition for post-conviction
relief, in which he challenged the constitutionality of the
stun belt and raised ineffective-assistance-of-counsel
claims, among other claims. Central to his claim for post-
conviction relief were three affidavits from jurors in his
trial who claimed to have seen the stun belt. The post-
conviction court discounted the reliability of the affidavits
and upheld Wrinkles’s convictions and sentence:
    The trial court did not strip the presumption of
    innocence from Petitioner by requiring him to wear
    the belt. The purpose of the belt is to maintain
    control over a prisoner without the prisoner appear-
    ing restrained. Petitioner did not prove that the belt
    was visible or that the jury knew about it. The
    affidavits from three jurors that they knew about
    the belt from the trial court, the bailiff, and/or
    newspaper articles read after trial, and Petitioner’s
    appearance during trial are insufficient. First, the
    juror affidavits are inconsistent with each other.
    One juror stated that the jury was not told why
    Petitioner wore the belt, while another juror
    averred that the trial court told the jury about the
    belt to assure the jurors that they would be safe.
    Second, some of the juror affidavits are inconsistent
    with bailiff Todd Woodmansee’s affidavit that he
    did not tell the jury about the belt. Third, both [of
No. 05-2747                                                9

   Wrinkles’s attorneys] testified that the belt was not
   visible during trial. Fourth, the juror affidavits
   were not subjected to cross-examination. Because
   petitioner did not appear restrained during
   the trial, he was not stripped of the presumption of
   innocence.
Vanderburgh Circuit Court’s Findings of Fact, Conclusions
of Law and Judgment on Petition for Post Conviction
Relief, Wrinkles v. State, No. 82C01-9407-CF-447 (Sept. 3,
1999) (emphasis in original).
   After the post-conviction court rendered its decision,
Wrinkles filed with that court a Motion to Correct Error,
to which he attached new affidavits from additional
jurors, who claimed to have seen the stun belt during
trial. The post-conviction court did not grant Wrinkles’s
motion, nor did it admit the additional juror affidavits
into evidence.
  Wrinkles then appealed the post-conviction court’s ruling
to the Indiana Supreme Court. Relying on Indiana law,
the supreme court in Wrinkles II prospectively banned the
use of stun belts in Indiana courts. The court was specifi-
cally concerned with the mental impact on a defendant
who might be afraid about the potential infliction of pain
from the belt, and how this mental concern could impact
the defendant’s ability to participate in his own defense.
Wrinkles 

.
  But the Indiana Supreme Court denied Wrinkles the
benefit of its holding. The court held that Wrinkles’s
claim was procedurally defaulted because Wrinkles had
failed to raise the issue on direct appeal. In addition,
the court held that Wrinkles had not suffered from inef-
fective assistance of counsel when his attorneys failed to
10                                              No. 05-2747

object to the use of the stun belt at his trial. The court
characterized Wrinkles’s attorneys’ choice to acquiesce to
the stun belt as a “strategic decision”:
     Before trial began, the trial court informed counsel
     that Wrinkles would have to wear either shackles
     or a stun belt during trial. Without objection coun-
     sel chose a stun belt, and Wrinkles claims they
     rendered ineffective assistance as a result. We
     disagree. Although with this opinion we declare
     that stun belts no longer have a place in Indiana
     courtrooms, that was not the case at the time of
     Wrinkles’ trial. Our prohibition is motivated
     primarily by the potential effect a stun belt may
     have upon the person wearing the device. How-
     ever, without the benefit of this declaration, coun-
     sel were concerned about the effect on the jurors if
     they were to observe their client wearing
     a particular device. Counsel believed that the
     chance of the jury seeing the shackles was fairly
     high. On the other hand, counsel opted for the stun
     belt because they thought that jurors would not be
     able to see it. Obviously, they were later proven
     wrong. However, at the time the decision was
     made, it was a prudent one.
   Wrinkles filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2554, in the United States District Court
for the Southern District of Indiana. He presented a host of
arguments, all of which Judge Tinder, rejected. Wrinkles v.
McBride, No. IP 01-1668-C-T/K (D. Ind. May 18, 2005)
(Entry Discussing Petition for Writ of Habeas Corpus).
With respect to the constitutionality of the stun belt
itself, the district court held that the claim could not be
presented under § 2254 because it had been procedurally
No. 05-2747                                                   11

defaulted in state-court proceedings. Further, Judge Tinder
held that even if the claim had not been waived, it lacked
merit. Judge Tinder credited the post-conviction court’s
finding that the jurors were not aware of the stun belt and
the belt was not visible.
  Thereafter, Wrinkles filed a Request for Certificate of
Appealability (“C.A.”) on two issues: (1) “Whether [he]
was unconstitutionally restrained by virtue of wearing a
stun belt at his trial,” and (2) “Whether [his] counsel
rendered ineffective assistance of counsel at the ‘guilt
phase’ of trial.” Judge Tinder granted Wrinkles a C.A. on
the issue of the constitutionality of the use of the stun
belt, but denied the request as to his ineffective-assistance-
of-counsel claims. This appeal followed.


                        II. ANALYSIS
  On appeal, Wrinkles’s first argues that the district
court erred in finding that his stun-belt claim was proce-
durally defaulted because the default was the result of
ineffective assistance of counsel. As for his freestanding
constitutional claim, he argues that his Sixth, Eighth,
and Fourteenth Amendment rights were violated when
he was forced to wear the stun belt without an inde-
pendent assessment of the need for restraints.2




2
  Wrinkles also seeks an expansion of the C.A. to include his
non-stun-belt ineffective-assistance-of-counsel arguments. For
the reasons stated by the district court, we deny his request
to expand the C.A. to include the additional claims on appeal.
See Herrera v. United States, 

, 1013 (7th Cir. 1996).
12                                                No. 05-2747

  A. Procedural default
  Before analyzing Wrinkles’s substantive § 2254 claims,
we must first determine whether Wrinkles procedurally
defaulted his argument that wearing the stun belt vio-
lated his constitutional rights. Lee v. Davis, 

,
899 (7th Cir. 2003) (“As a threshold matter, we must
determine whether Lee has procedurally defaulted his
argument . . . .”). The district court decided that Wrinkles
had defaulted his argument—a decision we review
de novo. 

general matter, considerations of
“finality, comity, and the orderly administration of
justice” preclude this court from reaching claims that a
habeas petitioner has procedurally defaulted in state
court. Dretke v. Haley, 

, 388 (2004). The crim-
inal trial is a “decisive and portentous event” and, as
such, the state has an interest in ensuring timely com-
pliance with those procedures that permit the jury accu-
rately to “decide, within the limits of human fallibility, the
question of guilt or innocence of one of its citizens.”
Wainwright v. Sykes, 

, 90 (1977). For these
reasons, a valid state procedural rule constitutes an
“adequate and independent state ground” for resolving
an issue, precluding this court from doing so collaterally.

  Wrinkles sought federal habeas corpus review of federal-
law issues that the Indiana Supreme Court disposed of
based on adequate and independent state-law grounds.
Specifically, Wrinkles’s “freestanding” stun belt claims—
that his rights to a fair trial under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Con-
stitution were violated when he was required to wear
a stun belt without a hearing—were deemed by the Indi-
ana Supreme Court to have been waived as a matter of
No. 05-2747                                                   13

state law. Wrinkles 

& 1187 n.3. The
procedural rule cited by the Indiana Supreme Court
provides an “adequate and independent state ground” for
resolving Wrinkles’s constitutional claims. Indiana
courts have long recognized, and the Wrinkles II court
reaffirmed, that “[c]laims that are available, but not
presented, on direct appeal are waived for post-convic-
tion review unless the claimed error is fundamental.” 

n.3; see also Adams v. State, 

, 628
(Ind. 1991). Thus, the district court was correct to con-
clude that Wrinkles’s substantive claim was procedurally
barred.


    B. Excuse for procedural default
  To keep his freestanding constitutional claim alive,
Wrinkles argues that his procedural default is excusable
under the standard set forth in Wainwright v. 

. A defendant may overcome procedural default
by showing both “cause” for failing to abide by the
state procedural rules, and a resulting “prejudice” from
that failure.3 

Specifically, Wrinkles argues that


3
   The Supreme Court has recognized an additional way to
avoid procedural default if the default would result in a
“fundamental miscarriage[ ] of justice.” Murray v. Carrier, 

, 496 (1986). See generally 6 Wayne R. LaFave, et al.,
Criminal Procedure 64-65 (2d ed. 2004). A miscarriage of
justice exists in the “extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” 

. In the capital
context, one can show “actual innocence” through “clear and
convincing evidence that, but for a constitutional error, no
                                                   (continued...)
14                                                 No. 05-2747

the freestanding stun-belt claim is procedurally defaulted
solely because of his trial attorneys’ ignorance of the law,
a fact that renders his counsel ineffective and that pro-
vides cause to excuse a procedural default. 

.
  Attorney error rising to the level of ineffective assist-
ance of counsel can constitute cause to set aside pro-
cedural default. Franklin v. Gilmore, 

, 883 (7th
Cir. 1999) (citing Coleman v. Thompson, 

, 753-54
(1991); Barnhill v. Flannigan, 

, 1078 (7th Cir.
1994)). When a habeas petitioner seeks to excuse a proce-
dural default through an ineffective-assistance claim, the
“cause” and “prejudice” test from Wainwright is replaced
by the similar test for ineffective assistance set out in
Strickland v. 

. See 

(“So long as a defendant is represented by
counsel whose performance is not constitutionally inef-
fective . . . there is no inequity in requiring him to bear
the risk of attorney error that results in a procedural
default.”); see also 

.
  “To establish ineffective assistance of counsel, the
[petitioner] must show that counsel’s performance was
deficient and that the deficient performance prejudiced
the [petitioner].” Almonacid v. United States, 

,
521 (7th Cir. 2007) (citing 

). A


3
  (...continued)
reasonable juror would have found the petitioner eligible for
the death penalty under the applicable state law.” Sawyer v.
Whitley, 

, 336 (1992). Wrinkles has not, and cannot,
make any claim of innocence. As for his sentence, although
Wrinkles has not raised this issue, this analysis closely mirrors
our analysis under the prejudice prong of Strickland.
No. 05-2747                                               15

“constitutionally deficient performance is one that falls
below an objective standard of reasonableness under
prevailing professional norms.” Shell v. United States, 

, 954-55 (7th Cir. 2006) (citing Granada v. United
States, 

, 83 (7th Cir. 1995)). And to show preju-
dice, the defendant must prove that “ ‘there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome.’ ” Raygoza
v. Hulick, 

, 963 (7th Cir. 2007) (quoting Strick-

). In Wrinkles’s case, if his attorneys’
decision not to object to the stun belt fell short of objec-
tively reasonable performance and prejudiced him, the
Sixth Amendment was not satisfied and this court
will excuse Wrinkles’s procedural default.
  Wrinkles’s ineffective-assistance claim was preserved
for collateral review. 

(citing Edwards
v. Carpenter, 

(2000)). The Indiana Supreme
Court reached—and ultimately rejected—Wrinkles’s
claim as an excuse for his procedural default. In re-
viewing the Indiana Supreme Court’s decision, we are
deferential towards its legal and factual conclusions.

; Neumann v. Jordan, 

,
987 (7th Cir. 1996) (“In reviewing the state court pro-
ceedings, we presume that the factual findings of the
state court are correct if those findings follow a hearing
on the merits and are fairly supported by the record.”).
Likewise, the Indiana Supreme Court’s legal conclusions
will be upheld unless they resulted in a decision that
was “(1) contrary to, or involved an unreasonable applica-
tion of, clearly established federal law, as determined by
the Supreme Court of the United States; or (2) based on
16                                              No. 05-2747

an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).


1. Substandard performance by counsel
   Wrinkles argues, and we agree, that his counsel’s perfor-
mance at trial fell below prevailing norms of professional
behavior. The Indiana Supreme Court correctly identi-
fied Strickland as the governing law; thus, Wrinkles will
only gain relief if the court unreasonably applied the
standard to the facts of his case. 28 U.S.C. § 2254(d)(2). In
evaluating the reasonableness of the Indiana Supreme
Court’s application of Strickland, we must ask whether
the court was “objectively unreasonable,” Williams v.
Taylor, 

, 409 (2000), meaning that its rea-
soning falls outside of the “ ‘boundaries of permissible
differences of opinion.’ ” 

(quoting
Hardaway v. Taylor, 

, 762 (7th Cir. 2002)).
  The Indiana Supreme Court held that Wrinkles’s coun-
sels’ decision not to object to the stun belt at trial was
strategic and thus adequate. The supreme court first
noted that the Indiana trial court had a stated “policy” of
“requiring defendants to wear restraints regardless of
whether they have previously exhibited any conduct
justifying restraints.” Wrinkles 

. The
trial court had given Wrinkles’s attorneys the choice of
wearing shackles or the stun belt at trial. Because they
thought that “the chance of the jury seeing the shackles
was fairly high,” Wrinkles’s attorneys chose the stun
belt. 

court characterized this as a
“strategic decision” because, unlike shackles, Wrinkles’s
attorneys “thought the jurors would not be able to see” the
No. 05-2747                                                  17

belt. 

because the trial court would
have overruled any objection to the stun belt—per its
stated restraint “policy”—Wrinkles could not demonstrate
that his trial would have been any different if his attor-
neys had objected. 

the trial court’s
policy would not likely withstand appellate scrutiny if
the issue were presented, it is apparent that at least at
the time of Wrinkles’s trial, an objection to wearing re-
straints would not have been sustained by the trial judge
even if made.”). Thus, the supreme court concluded, the
decision was strategic and Wrinkles could not show a
substandard performance by his trial counsel. We disagree.
  At the time of Wrinkles’s trial, it was well established
that a trial court could not restrain a criminal defendant
absent a particularized justification. In Illinois v. Allen, the
Supreme Court held that a defendant could forfeit his
Sixth Amendment right to be present and unrestrained
at his own trial. 

(1970). The Court sanctioned
the use of physical restraints “as a last resort,” 

and articulated a framework for handling “obstreperous”
defendants that tied the trial court’s response to the
seriousness of the defendant’s conduct, 

The
Court applied this framework next in Estelle v. Williams, 

(1976), in which the defendant appeared before the
jury in prison garb. Unlike Allen, which recognized “the
substantial need to impose physical restraints upon
contumacious defendants,” the Court in Estelle decided that
forcing “an accused to wear jail clothing further[ed] no
essential state policy.” 

  Again in Holbrook v. Flynn, 

, 569 (1986), the
Supreme Court applied this framework when evaluating
the presence of armed guards at a defendant’s trial. The
Court concluded that the presence of armed guards
18                                               No. 05-2747

was not the “sort of inherently prejudicial practice that,
like shackling, should be permitted only where justified
by an essential state interest specific to each trial.” 

The need for a particularized justification had not
gone unnoticed by Indiana courts either. The Indiana
Supreme Court held in Coates v. State, that particularized
reasoning must support a decision to restrain a defendant,
going so far as to require that “the facts and reasoning
supporting the trial judge’s determination that restraints
are necessary must be placed on the record.” 

, 168-69 (Ind. 1985).
   In Wrinkles’s case, his attorneys did not object to the
use of the stun belt because they concluded that the
trial court was going to require restraints no matter what.
But these cases make clear that particularized reasoning
must support any decision to restrain a defendant. In
light of the wealth of caselaw prohibiting the trial
court’s blanket policy, by standing mute, Wrinkles’s
counsel failed to provide adequate legal assistance. Failing
to object when a trial court presents two impermissible
options—shackles or a stun belt, neither supported by
individualized justification—cannot be an objectively
reasonable tack under prevailing norms of professional
behavior. See 

(“Counsel, however,
can also deprive a defendant of the right to effective
assistance, simply by failing to render ‘adequate legal
assistance.’ ”); see also Barrow v. Uchtman, 

, 605
(7th Cir. 2005) (holding ignorance of relevant law objec-
tively deficient under Strickland); Dixon v. Snyder,

, 703 (7th Cir. 2001) (same). Counsels’ choice
between two unconstitutional options is not a strategic
choice worth deference. Accordingly, the Indiana Su-
preme Court unreasonably applied Strickland’s first prong.
No. 05-2747                                                  19

2. Prejudice
  Standing alone, the attorneys’ failure to request an
inquiry into the justification for the stun belt is not ineffec-
tive assistance. Some prejudice is required before a trial
counsel’s performance falls below the constitutional
minimum. 

. Without demon-
strating prejudice, Wrinkles cannot receive relief on the
ground of ineffective assistance of counsel, 

the
basis of his freestanding constitutional claims regarding
the stun belt, because the latter claim was procedurally
defaulted at the state level.
   Wrinkles argues that he was prejudiced because, in his
opinion, the jurors were aware that he was restrained
by the stun belt and were thus more inclined to view him
as a dangerous person. In turn, he argues, the jurors
were more likely to determine that he had the requisite
mindset to commit murder, instead of a lesser crime, and
were more willing to vote for the death penalty. If the
jurors did see the stun belt during trial, then Wrinkles
could demonstrate prejudice. See 

;

; Harrell v. Israel, 

,
635 (7th Cir. 1986) (“[C]ourts must guard against prac-
tices which unnecessarily mark the defendants as a dan-
gerous character or suggest that his guilt is a foregone
conclusion.”). Thus, Wrinkles’s habeas petition hinges
on the belt’s visibility; the belt’s visibility is a question of
fact that was resolved by the state post-conviction court
and upheld by the Indiana Supreme Court.
  The post-conviction court determined that Wrinkles
had not demonstrated that the jurors had seen the stun
belt or that Wrinkles had otherwise been affected by it.
The Indiana Supreme Court affirmed the post-conviction
court. Wrinkles contends, however, that the supreme
20                                                 No. 05-2747

court made an implicit factual finding that the belt was
visible to the jury. He bases his argument on a state-
ment in Wrinkles II that indicates that Wrinkles’s attor-
neys “were later proven wrong.”4 This sentence follows
the court’s discussion of the attorneys’ decision not to
challenge the trial court’s imposition of the stun belt-
restraint:


4
  Wrinkles also claims that the Indiana Supreme Court recog-
nized that the stun belt was “conspicuous to at least seven
jurors.” However, Wrinkles takes this quotation in Wrinkles II
out of context. The full sentence is one of three in a paragraph
the Indiana Supreme Court uses solely to summarize Wrinkles’s
ineffective-assistance-of-counsel argument with respect to the
stun belt. The entire sentence reads: “Wrinkles asserts that
utilization of the stun belt, which was conspicuous to at least
seven jurors, undermined his presumption of innocence and
made him appear dangerous and uncontrollable in front of the
jurors who would help decide whether he would live or die.”
Wrinkles 

(citing Appellant’s Br. at 29;
Appellant’s Reply Br. at 11). The sentence begins with “Wrinkles
asserts.” The preceding sentence in the paragraph, which
introduces Wrinkles’s argument, begins with, “Wrinkles
contends.” The subsequent sentence starts with, “He claims.”
Taken in context, it is clear that the Indiana Supreme Court
was merely presenting Wrinkles’s argument, including his
argument that the belt was visible to seven jurors.
  We cannot fathom the notion that, in the middle of three
paraphrasing sentences, the Wrinkles II court would have
perfunctorily inserted a clause containing a factual finding,
without indicating it as such. Courts often present a party’s
argument in order to present the issue it will proceed to con-
sider, and it is apparent that the Indiana Supreme Court was
doing this in Wrinkles II. Consequently, we reject Wrinkles’s
argument that this clause is a finding of fact by the Wrinkles II
court that the stun belt was visible to jurors.
No. 05-2747                                                 21

    Before trial began, the trial court informed counsel
    that Wrinkles would have to wear either shackles
    or a stun belt during trial. Without objection coun-
    sel chose a stun belt, and Wrinkles claims they
    rendered ineffective assistance as a result. We
    disagree. Although with this opinion we declare
    that stun belts no longer have a place in Indiana
    courtrooms, that was not the case at the time of
    Wrinkles’ trial. Our prohibition is motivated
    primarily by the potential effect a stun belt may
    have upon the person wearing the device. How-
    ever, without the benefit of this declaration, coun-
    sel were concerned about the effect on the jurors if
    they were to observe their client wearing a particu-
    lar device. Counsel believed that the chance of the
    jury seeing the shackles was fairly high. On the
    other hand, counsel opted for the stun belt because
    they thought that jurors would not be able to see it.
    Obviously, they were later proven wrong. How-
    ever, at the time the decision was made, it was a
    prudent one.
Wrinkles 

.
  Wrinkles believes the “Obviously, they were later
proven wrong” sentence amounts to a finding of fact by
the Indiana Supreme Court that the jurors saw the stun
belt. We disagree with that interpretation of the sentence.
To begin, we do not believe the Indiana Supreme Court
would have made a factual finding in this manner, espe-
cially as it affirmed the post-conviction court and did not
overturn any of the post-conviction court’s factual findings.
More importantly, we do not read this statement to
reveal anything about the stun belt’s visibility. Rather,
the statement reflects the Indiana Supreme Court’s opin-
ion that Wrinkles’s attorneys could not be faulted for
22                                                No. 05-2747

having taken into account only the potential visibility of
a particular restraint in deciding whether to object to a
court’s use of the restraint—because Indiana law at the
time focused on the harm stemming from visible restraints.


a. Indiana law on factual findings
  In the “deferential and limited review” of 28 U.S.C.
§ 2254, “state court factual findings are presumed correct.”
Williams v. Bartow, 

, 498 (7th Cir. 2007). On the
issue of the belt’s visibility, the state post-conviction court
considered three juror affidavits, affidavits from the trial
bailiff, and testimony from Wrinkles’s attorneys to decide
whether the jurors saw or knew about the stun belt. The
court discredited the juror affidavits. The affidavit of one
juror stated that at the time she served on the jury, she
was aware that Wrinkles was wearing a stun belt—she
said it “looked like a cumberbund [sic].” However, she
said she was unsure how she learned of the stun belt,
and that she may have learned of it through a newspaper
article she read after the trial. Another juror said in his
affidavit that he was aware that Wrinkles was wearing
a stun belt during his trial, and that he believed the trial
judge told the jurors about the stun belt to give the
jurors confidence in their safety. A third juror, in con-
trast, said that he thought the bailiff told the jury about
the stun belt, but he said the jury was not told why Wrin-
kles was wearing the belt. The post-conviction court
held that the affidavits were insufficient because they
were inconsistent with each other—calling into question
their credibility—and because they contradicted the
bailiff’s testimony, as well as Wrinkles’s attorneys’ testi-
mony. The bailiff swore in his affidavit that he “never
communicated to any of the jurors at any time during
the trial that [Wrinkles] was wearing a rack belt.”
No. 05-2747                                                 23

  After it had rendered its judgment denying Wrinkles’s
request for post-conviction relief, the post-conviction
court denied Wrinkles’s subsequent motion to correct error,
motion to reopen the evidence, and request for leave to
amend his petition for post-conviction relief. Wrinkles
proffered with each of these pleadings copies of four more
juror affidavits. (A fifth affidavit was attached to a motion
to supplement the motion to reopen the evidence.) How-
ever, these affidavits were never admitted into evidence by
the post-conviction court, and there is no indication
whatsoever that the Indiana Supreme Court weighed the
additional affidavits as part of its analysis in Wrinkles II.
  Notably, Wrinkles did not raise as issues on appeal to the
Indiana Supreme Court the post-conviction court’s denial
of his post-judgment motions and request for leave to
amend his petition based on the additional juror affi-
davits. In Indiana, a motion to correct error does not
allow a party to present evidence it merely neglected to
present at trial, Roach v. State, 

, 940 n.1 (Ind.
1998), and a motion to reopen the evidence lies within
the sound discretion of the trial judge, Walker v. State,

, 677 (Ind. 1992). A judge typically does
not abuse his discretion in refusing to reopen evidence
“when it plainly appears that such evidence could have
been offered earlier,” Preuss v. McWilliams, 

,
792 (Ind. Ct. App. 1967), or when the proffered evidence is
cumulative, Oxendine v. Pub. Serv. Co. of Ind., Inc., 

, 623 (Ind. Ct. App. 1980). The additional
affidavits Wrinkles sought to have admitted into the
evidentiary record of the post-conviction court were
never admitted—they remain mere attachments to state-
court motions and thus should not form the basis of a
federal habeas decision.
24                                                No. 05-2747

  Having not appealed the post-conviction court’s refusal
to admit the additional affidavits into evidence, Wrinkles’s
reliance on the additional affidavits in his post-conviction
appeal to the Indiana Supreme Court seems analogous
to the petitioner’s reliance on similar affidavits in Patton v.
State, 

(Ind. Ct. App. 1989). In Patton, the
petitioner felt that because his attorney had failed to
present the evidence to the trial court, “he should be
allowed to present it by affidavits with his Motion to
Correct Errors.” 

The Indiana Court of Appeals
explained that Indiana Trial Rule 59(H)(1), dealing with
motions to correct error, “was not designed for this
purpose.” 

court went on to conclude that the
affidavits “were not properly before the trial court as
evidence outside the record”—they did not qualify as
newly discovered evidence and Patton had neglected to
submit them at trial. 

affidavits were not
properly before the Indiana Court of Appeals, the Patton
court declared: “we cannot consider them in reviewing
the trial court’s action.” 

  If under state law the Indiana Supreme Court would not
have looked at the additional affidavits in its direct
review of the post-conviction court’s findings, see 

n.1; 

; 

, certainly we are not at liberty to
weigh them on collateral review under § 2254, where our
review is limited to arguments that were adjudicated on
the merits in state court proceedings, 28 U.S.C. § 2254(d),
and arguments that were not procedurally defaulted, 

Here, Wrinkles did not appeal the post-conviction
court’s refusal to admit the additional affidavits into
evidence. Absent a reversal of the post-conviction court’s
rulings on these affidavits by the Indiana Supreme Court,
No. 05-2747                                                  25

and absent any indication by the Wrinkles II court that it
nonetheless decided to consider the additional affidavits,
we are not free to engage in an independent assessment of
the affidavits’ weight and the affiants’ credibility.
  The Wrinkles II opinion itself suggests that the Indiana
Supreme Court adopted the post-conviction court’s
findings of fact in toto. The supreme court acknowl-
edged the post-conviction court’s factual findings and
identified the standard of review called for under Indi-
ana law:
    In the present case, the post-conviction court
    entered findings of fact and conclusions of law in
    accordance with Indiana Post-Conviction Rule 1(6).
    A post-conviction court’s findings and judgment
    will be reversed only upon a showing of clear
    error—that which leaves us with a definite and
    firm conviction that a mistake has been made.
Wrinkles 

. After reviewing the post-
conviction court’s findings and conclusions of law with
respect to each of Wrinkles’s arguments on appeal, the
Wrinkles II court ultimately declared that Wrinkles “failed
to prove that the evidence as a whole leads unerringly and
unmistakably to a decision opposite that reached by the
post-conviction court.” 

It then affirmed the post-
conviction court’s denial of Wrinkles’s petition for relief. 

II court did not reverse the findings of the
post-conviction court, either explicitly or implicitly. The
Indiana Supreme Court has repeatedly noted that a post-
conviction court’s findings of fact are accepted unless
“clearly erroneous,” and that the “postconviction court is
the sole judge of the weight of the evidence and the credibility
of witnesses.” Fisher v. State, 

, 679 (Ind.
26                                               No. 05-2747

2004); Davidson v. State, 

, 444 (Ind. 2002);
Woods v. State, 

, 1210 (Ind. 1998) (emphasis
added); see also Stewart v. State, 

, 1231 (Ind.
1988) (“The judge who presides over the post-conviction
hearing possesses exclusive authority to weigh the evidence
and determine the credibility of the witnesses. The review-
ing court will therefore not set aside the trial court’s
ruling on a post-conviction petition unless the evidence
is without conflict and leads solely to a result different
from that reached by the trial court.”) (emphasis added).
The Indiana Supreme Court in Wrinkles II did not sug-
gest in any way that it considered the additional affidavits
that had never been admitted into the evidentiary record.
Nor did the court say it was engaging in a de novo re-
weighing of the evidence in Wrinkles II—indeed it appears
it would not have done so as a matter of Indiana law. See

; 

;

. Finally, nothing in the Wrinkles
II opinion indicates that the Indiana Supreme Court was
overturning the post-conviction court’s factual findings,
or that those findings were clearly erroneous.


b. Our reading of “Obviously, they were later proven wrong.”
   Despite a degree of ambiguity surrounding the “Obvi-
ously, they were later proven wrong” sentence in Wrinkles
II, we conclude that the Indiana Supreme Court was
commenting on the process by which Wrinkles’s attor-
neys decided not to object to the stun-belt restraint—as
opposed to commenting on the belt’s visibility. In the
disputed passage, the court first explained that it had just
invalidated the use of stun belts based on a type of preju-
dice unavailable to Wrinkles’s counsel at the time of
No. 05-2747                                                27

trial—the “potential effect . . . upon the person wearing
the device.” The court then set out the choice of restraint
facing Wrinkles’s attorneys at trial in light of the only
theory of prejudice then available—the “effect on the
jurors.” Lastly, the court explained why, based on this
latter theory of prejudice, counsel’s decision to choose
the stun belt was a “prudent one” even though the attor-
neys were “later proven wrong” to examine their
choice solely based on “the effect on the jurors.”
  In rejecting Wrinkles’s claim that he had received
ineffective assistance of counsel, the court stated, in
relevant part:
    Before trial began, the trial court informed counsel
    that Wrinkles would have to wear either shackles
    or a stun belt during trial. Without objection coun-
    sel chose a stun belt, and Wrinkles claims they
    rendered ineffective assistance as a result. We
    disagree. Although with this opinion we declare
    that stun belts no longer have a place in Indiana
    courtrooms, that was not the case at the time of
    Wrinkles’ trial. Our prohibition is motivated
    primarily by the potential effect a stun belt may
    have upon the person wearing the device. How-
    ever, without the benefit of this declaration, coun-
    sel were concerned about the effect on the jurors if
    they were to observe their client wearing a particu-
    lar device. Counsel believed that the chance of the
    jury seeing the shackles was fairly high. On the
    other hand, counsel opted for the stun belt because
    they thought the jurors would not be able to see it.
    Obviously, they were later proven wrong. How-
    ever, at the time the decision was made, it was a
    prudent one.
Wrinkles 

(citations omitted).
28                                              No. 05-2747

   The last few sentences of this quoted section—particu-
larly the sentence “[o]bviously, they were later proven
wrong”—are not entirely unproblematic. One could read
this second-to-last sentence as referring back to the
court’s statement that “the jurors would not be able to see
it,” with the “it” referring to the stun belt. So read, this
could be seen as an implicit finding that the jurors had in
fact seen the stun belt and that Wrinkles’s attorneys “were
later proven wrong” about their contrary assumption. In
turn, this would suggest that the stun belt may have
prejudiced the defendant.
  We cannot conclude that this is the appropriate reading
for two reasons: (1) the quoted section is more consistent
with a discussion of the choice facing Wrinkles’s attorneys
in light of the then-established prejudice associated with
restraints; and (2) Indiana law as well as subsequent
guidance by the Indiana Supreme Court sheds light on the
more plausible reading. Parsing the above-quoted section,
the paragraph begins:
     Before trial began, the trial court informed counsel
     that Wrinkles would have to wear either shackles
     or a stun belt during trial. Without objection coun-
     sel chose a stun belt, and Wrinkles claims they
     rendered ineffective assistance as a result. We
     disagree. Although with this opinion we declare
     that stun belts no longer have a place in Indiana
     courtrooms, that was not the case at the time of
     Wrinkles’ 

. The issue before the court was whether
Wrinkles’s counsel “rendered ineffective assistance” when
“[w]ithout objection counsel chose a stun belt” after “the
trial court informed counsel that Wrinkles would have
to wear either shackles or a stun belt during trial.” In the
immediately preceding paragraphs of the opinion, the
No. 05-2747                                                 29

supreme court had just held that “stun belts no longer
ha[d] a place in Indiana courtrooms.” But this did not end
the inquiry because “that was not the case at the time of
Wrinkles’ trial,” when the counsel rendered their assis-
tance. In prospectively banning stun belts, the court had
relied on a form of prejudice that was unproven at the
time of Wrinkles’s trial. The supreme court continued:
    Our prohibition is motivated primarily by the
    potential effect a stun belt may have upon the
    person wearing the device. However, without the
    benefit of this declaration, counsel were concerned
    about the effect on the jurors if they were to ob-
    serve their client wearing a particular device.

II, the court reasoned that the prejudice
from a stun belt resulted not from the jury being able to
see the defendant in restraints, but from “the potential
effect a stun belt may have upon the person wearing the
device.” This form of prejudice marked a departure from
preexisting case law, which had only discussed prejudice
in terms of the defendant’s visibility before the jury in
restraints. 

see also Stephenson v. Indiana, 

, 1029, 1032 (Ind. 2007) (discussing reasonable-
ness of counsel’s choice “given that the case law addressing
the issue had largely focused on the visibility of the
restraint, and not, as Wrinkles later pointed out, on the
belt’s potential effect on the defendant’s demeanor and
ability to participate in the defense”). Understandably then,
“without the benefit of this declaration, [Wrinkles’s]
counsel were concerned” instead with the more established
form of prejudice associated with restraints: “the effect on
the jurors if they were to observe their client wearing a
particular device.”
 The question then became whether effective counsel
would have accounted for the new form of prejudice just
30                                              No. 05-2747

identified in banning stun belts. But the supreme court said
no; the failure to object was not ineffective assistance. In
reaching this conclusion, the court first recreated the
decision facing Wrinkles’s counsel in choosing the restraint
to be used:
     Counsel believed that the chance of the jury seeing
     the shackles was fairly high. On the other hand,
     counsel opted for the stun belt because they
     thought the jurors would not be able to see it.
Wrinkles 

. In other words, after
assuming that they need only consider the effect on the
jurors, the attorneys chose the stun belt because it posed
the least risk of being seen by the jurors when compared to
the shackles.
  Immediately following the court’s articulation of these
two options and the rationale behind the attorneys’ choice,
the court continued,
     Obviously they were later proven wrong. How-
     ever, at the time the decision was made, it was a
     prudent one.

sentence refers back to the court’s statement
that “counsel opted for the stun belt because they thought
the jurors would not be able to see it.” Wrinkles’s attorneys
opted for the form of restraint that they thought would
minimize prejudice—the “effect on the jurors.” But the
court had just held that its decision was instead “motivated
primarily by the potential effect a stun belt may have upon
the person wearing the device,” not the “effect on the
jurors.” Thus, “[o]bviously, they were later proven wrong”
to have evaluated the choice of restraint through the lens of
juror-prejudice alone. Nonetheless, because the attorneys
could not be faulted for failing to predict the form of
No. 05-2747                                                   31

prejudice announced in Wrinkles II, “at the time the deci-
sion was made, it was a prudent one.”
  Placing Wrinkles II within the larger context of Indiana
law—both procedural law and a subsequent interpretation
laid out by the Indiana Supreme Court—reinforces this
reading. When reviewing a state-court decision in federal
courts, the resolution of potentially dispositive ambiguities
occasioned by a state-court finding should be resolved,
where possible, by reference to that state’s law. See Tibbs v.
Florida, 

(1982) (direct review); Greene v. Massey,

(1978) (collateral review); Rivera v. Sheriff of Cook
County, 

, 489 (7th Cir. 1998) (collateral review
post-AEDPA). Thus, in an analogous situation, the Su-
preme Court has instructed lower courts to examine the
state’s procedural law closely, or to certify questions to the
state’s highest court when necessary, 

n.8, 27, or to examine subsequent decisions that may shed
some light on the issue at hand, 

.
  Here, Indiana procedural law and a subsequent su-
preme court decision support the conclusion that the
above reading of Wrinkles II is the proper one. First, as
discussed above, it is implausible to view the “Obviously”
statement as an implicit factual finding by the the su-
preme court. Under Indiana law, the supreme court would
not have examined additional affidavits contained in a
motion to correct error. And the rest of Wrinkles II is
more consistent with a blanket affirmance than with an
affirmance despite a factual finding contrary to the post-
conviction court’s. This latter scenario is especially
unlikely given that the supreme court was reviewing only
for clear error.
  But more importantly, this court must credit the Indiana
Supreme Court’s later interpretation of Wrinkles II in
resolving the ambiguity contained in the disputed passage.
32                                                No. 05-2747

(“Any ambiguity in Tibbs I . . . was
resolved by the Florida Supreme Court in Tibbs II,” which
“binds this Court.”). Although it is not often that an
ensuing state supreme court decision affects a disputed
finding in a previous decision, it is not unprecedented. This
scenario arises with some regularity when reviewing
whether a defendant’s retrial following a state appellate
court’s reversal of a conviction raises double jeopardy
concerns. And defendants frequently raise these claims
before federal courts on collateral review. See, e.g., 

. If the state appellate court reversed because
the evidence in the first trial was insufficient, double
jeopardy attached and retrial is improper. But if the
appellate court reversed simply because the defendant’s
first conviction was against the “weight of the evidence,”
the defendant’s retrial is constitutional. In deciding
which basis the state appellate court relied on in re-
versing, federal courts must often parse the appellate
court’s decision against the backdrop of the state’s proce-
dural law and ensuing case law. 

should themselves determine the right way to understand
their pronouncements.”).
   A scenario comparable to the case at hand presented
itself to the Supreme Court in Tibbs v. 

.
There, the Florida Supreme Court’s first decision reversing
Tibbs’s conviction did not obviously rest on either the
“insufficiency” or the “weight of the evidence.” But a
second Florida Supreme Court opinion following Tibbs’s
retrial clarified matters; the earlier reversal had been
based on the “weight of the evidence.” One issue before
the Supreme Court on appeal from this latter decision
was whether the initial reversal had been based instead
on the “weight of the evidence.” The Supreme Court
No. 05-2747                                                   33

affirmed the defendant’s conviction following retrial,
noting that the Florida Supreme Court’s “construction of
its prior opinion binds this Court.” 

Because
“[a]ny ambiguity in Tibbs I . . . was resolved by the Florida
Supreme Court in Tibbs II,” 

had to give effect
to the decision—meaning that the defendant’s retrial had
been proper.
  In Stephenson v. Indiana, 

(Ind. 2007), the
Indiana Supreme Court provided similar guidance. In
Stephenson, the court compared the decision made by
Wrinkles’s counsel in choosing the stun belt with the
same decision made by Stephenson’s during his trial. In
so doing, the court explained its rationale in Wrinkles II:
    At the time of Stephenson’s trial in 1996 and 1997,
    no Indiana ruling had addressed the use of stun
    belts. As in Wrinkles, counsel cannot be faulted for
    selecting the belt over more visible shackles, given
    that the case law addressing the issue had largely
    focused on the visibility of the restraint, and not, as
    Wrinkles later pointed out, on the belt’s potential
    effect on the defendant’s demeanor and ability to
    participate in the defense.

The court went on to characterize the decision
made by Wrinkles’s attorneys as a “tactical decision.” The
“only real issue” in Wrinkles’s trial was sentencing, so
“[t]he decision to challenge the belt [there] arguably fell
into the tactical range, balancing the likelihood of suc-
cess against the risk of alienating the judge by challenging
an announced ‘policy.’ ” 

Stephenson’s case,
guilt was “vigorously disputed,” a “tactical” classification
could not apply. The court went on to hold that the “use of
a stun belt, if perceived by the jury, produces all the results
that shackling does.” After a careful examination of the
post-conviction record, the Stephenson court concluded
34                                                No. 05-2747

that the jurors had been aware of the stun belt. Nonethe-
less, the court upheld Stephenson’s convictions and death
sentence because he had not demonstrated the requisite
amount of “prejudice” to establish his ineffective-assistance
claim.
   This discussion of Wrinkles II in Stephenson indicates that
the above reading is the appropriate one. The section
discussing the Wrinkles II decision tracks the Indiana
Supreme Court’s reasoning in the exact manner dis-
cussed above. The court recreated the decision facing
Wrinkles’s attorneys in light of the established form of
prejudice at the time. The court again recognized that
Wrinkles’s attorneys viewed their decision at trial in
light of the “visibility of the restraint,” and not the “belt’s
potential effect on the defendant’s demeanor and ability
to participate in the defense.” And just as it had in
Wrinkles II, the court concluded that Wrinkles’s counsel
could not be faulted for failing to predict the prejudice
the court would credit in banning the stun belt.
  Even with the benefit of this reading, the Indiana Su-
preme Court unreasonably applied Strickland in evalu-
ating Wrinkles’s attorneys’ performance in Wrinkles II. The
failure to object itself fell below what is expected under
professional norms, regardless of the theory of prejudice.
A blanket policy of restraint cannot be squared with the
case law at the time of trial. But notwithstanding the
propriety of the court’s conclusion, it is evident that the
court did not make a finding that the jurors had seen
the stun belt. Instead, the court in Wrinkles II was recon-
structing the decision made by Wrinkles’s counsel based
on the then-established form of prejudice associated
with the stun belt.
   In light of the nature of the court’s reasoning in Wrinkles
II, the discussion in Stephenson, and the implausibility
No. 05-2747                                               35

under Indiana law of the Indiana Supreme Court making
implicit factual findings, we conclude that the Indiana
Supreme Court did not make a finding of fact that the
jurors had seen the stun belt. The controlling findings of
facts are those set forth by the state post-conviction court
and adopted by the Wrinkles II court. These findings of
fact determined that the jury did not see the stun belt.
Additionally, Wrinkles has not presented us with any
evidence to demonstrate that the stun belt affected his
abilities to properly participate in his own defense. Without
evidence that the jurors saw the stun belt, or that he was
otherwise affected by the stun belt throughout trial,
Wrinkles cannot demonstrate prejudice. See Strick

. He therefore cannot show that he re-
ceived ineffective assistance of counsel, so he cannot
demonstrate the requisite cause and prejudice necessary to
overcome his procedural default. 

.
Thus, this Court is procedurally barred from examining
his freestanding stun-belt claim and must deny the writ.


                     III. CONCLUSION
  The decision of the district court is AFFIRMED.




  ROVNER, Circuit Judge, dissenting. I agree with my
colleagues that Matthew Wrinkles’s trial attorneys
were deficient in failing to object to the trial court’s in-
sistence on the use of restraints absent judicial findings
36                                             No. 05-2747

that Wrinkles presented a security threat or otherwise
required physical restraints. I cannot agree, however,
that Wrinkles was not prejudiced by counsels’ error.
The natural reading of the opinion of the Indiana Su-
preme Court in Wrinkles II is that several jurors were
aware of the stun belt during the trial. In light of that
finding, Wrinkles has shown both the inherent prejudice
that accompanies visible restraints and other detriments
specific to his case. Only through a tortured interpretation
of the Indiana Supreme Court’s opinion, with which not
even the respondent agrees, does the majority conclude
that Wrinkles was not prejudiced by his attorneys’ error.
I would not wager a man’s life on the correctness of the
majority’s grammatical parsing, and therefore I respect-
fully dissent.
  During the state postconviction proceedings, Wrinkles
submitted affidavits from two jurors who attested that,
during the trial, they were “aware” that Wrinkles was
wearing a shock belt. One juror “believe[d]” that a bailiff
told the jurors of the belt and the other was unsure how
he became aware but “believe[d]” the judge told the
jurors. A third juror (juror Kraft) attested that she was
aware of the belt and even saw it on Wrinkles during
the trial; she described the belt as looking like a cum-
merbund. Kraft also stated that she may have become
aware of the belt after the trial from a newspaper article.
Despite ample time to investigate and prepare counter-
affidavits, the state submitted only one, from one of the
three bailiffs who worked at Wrinkles’s trial. The bailiff
attested that he never communicated to the jurors that
Wrinkles was wearing a stun belt. Nothing, however,
contradicted the three jurors’ testimony that they knew
about the belt; only how each learned of it remained open
No. 05-2747                                                 37

to question. Despite the testimony by all three jurors that
they knew about the stun belt, and with nothing in the
record to the contrary, the postconviction court found
that the jurors were not aware of the stun belt. The court
reasoned that the affidavits were not credible because
of inconsistencies and because the jurors were not sub-
ject to cross-examination.1
  Wrinkles vigorously contested the court’s finding. He
moved the postconviction court to reopen the evidence
and to correct error, and supplemented the record with
four additional juror affidavits. Kraft, one of the three
original affiants, clarified that she had “no doubt” that
during the trial she knew the belt she saw on Wrinkles
was a stun belt, although she was still unsure as to how
she came by that knowledge. Three additional jurors
attested that they were aware of the belt during the trial,
although none could recall the source of that information.
Two of them supplied the additional detail that they
understood that the belt could be activated remotely by
a deputy. Finally, in a supplemental filing, one additional
juror attested that she saw the stun belt during the trial.
The postconviction court declined to revisit the issue and
denied Wrinkles’s motions.
  Wrinkles argued on appeal to the Indiana Supreme
Court that the finding that the jurors were unaware of the
stun belt was erroneous. In its opinion, the Indiana Su-
preme Court implicitly accepted that argument by making
statements inconsistent with the postconviction court’s


1
  The court also did not explain why it credited the bailiff’s
affidavit, which was also not subject to cross-examination. The
affidavits are duly sworn under the penalty of perjury. They
were prepared four years after the trial.
38                                               No. 05-2747

finding. If the jurors knew about the stun belt, we must
presume that Wrinkles was prejudiced, and so the inter-
pretation of the supreme court’s statements on this sub-
ject is the linchpin of this case.
  In its first reference to the issue, the Indiana Supreme
Court stated: “Wrinkles asserts that utilization of the
stun belt, which was conspicuous to at least seven jurors,
undermined his presumption of innocence and made
him appear dangerous and uncontrollable in front of the
jurors who would help decide whether he would live or
die.” Wrinkles v. State, 

, 1192 (Ind. 2001)
(Wrinkles II). The statement is ambiguous at best, and it
could be interpreted as the court’s recapitulation of one of
Wrinkles’s arguments. However, Wrinkles’s proffered
interpretation, that the supreme court itself believed that
the stun belt was conspicuous, is also plausible because
the court did not specifically ascribe that assertion to
Wrinkles.2 The sentence reads more naturally as an ac-
knowledgment by the court that seven jurors were
aware of the belt.
  The court’s second mention of the critical factual issue
is not ambiguous. It first states that Wrinkles’s counsel,
lacking the guidance of the later decision to ban stun belts
outright, reasonably chose between shackles and stun
belt based on the effect each might have on the jurors. 

The court continues: “Counsel believed that the
chance of the jury seeing the shackles was fairly high. On
the other hand, counsel opted for the stun belt because


2
  As the majority points out, ante at 20 n.3, the supreme
court otherwise consistently used such language as “Wrinkles
contends” or “He claims” immediately preceding his arguments.
No. 05-2747                                               39

they thought that jurors would not be able to see it. Obvi-
ously, they were later proven wrong. However, at the time
the decision was made, it was a prudent one.” 

added). Given the preceding sentence, the italicized
sentence must be read as an acknowledgment by the
supreme court that, despite counsels’ pretrial predictions
that the stun belt would go undetected, some jurors
indeed were aware of it.
  The majority, however, concludes that the attorneys
were “later proven wrong” in their decision to evaluate
“the choice of restraint through the lens of juror-prej-
udice alone.” Ante at 30. In order to arrive at this tortured
result, my colleagues devote no less than ten pages to
what they describe, fittingly, as “Our Reading of ‘Obvi-
ously, they were later proven wrong.’ ” Ante at 26. The
subheading is particularly apt because it is the majority’s
interpretation and the majority alone. At oral argument,
even the State of Indiana did not deny that the state-
ment means that the supreme court believed that jurors
were aware of the belt. Cf. McCaskill v. SCI Mgmt. Corp., 

, 680 (7th Cir. 2002) (“The verbal admission by
SCI’s counsel at oral argument is a binding judicial ad-
mission, the same as any other formal concession made
during the course of proceedings.”). Instead, the State
characterized this finding as “an aside” the supreme
court inserted while making the point that “the fact that
later the jurors may have seen it . . . doesn’t matter for
counsel’s decision at the time he made it.” Indeed, no-
where in its brief does the State mention the passage of the
Indiana Supreme Court’s opinion that divides the panel, a
fact which makes the majority’s ten-page analysis of the
disputed passage all the more extraordinary. See, e.g.,
Kochert v. Adagen Med. Int’l., Inc., 

, 679 (7th
40                                              No. 05-2747

Cir. 2007) (Plaintiff “did not raise, much less develop
this argument, and undeveloped arguments are waived.”).
  Then my colleagues, who accuse Wrinkles of taking
the statement out of context, proceed to rearrange the
entire paragraph to reach the conclusion that the Indiana
Supreme Court was explaining why “counsel’s decision
to choose the stun belt was a ‘prudent one’ even though
the attorney’s were ‘later proven wrong’ to examine
their choice solely based on ‘the effect of the jurors.’ ”
Ante at 27. Not only does this interpretation strain com-
mon sense, it is inconsistent with the supreme court’s
analysis of counsels’ decision. As the majority concedes,
the Indiana Supreme Court erroneously concluded that
counsel were not deficient for failing to object to the
stun belt because in light of the trial court’s supposed
policy of requiring restraints, “an objection to wearing
restraints would not have been sustained by the trial
judge even if made.” Wrinkles 

. Thus,
the Indiana Supreme Court excused counsels’ failure to
know the law with the illogical reasoning that the trial
judge’s illegal policy obviated the need for an objection.
  Given this view, it would make no sense for the Indi-
ana Supreme Court to in the same breath conclude that
counsel were “later proven wrong” to have evaluated the
situation solely through the lens of Wrinkles’s appearance
before the jury. Quoting a piece of the disputed sen-
tence and then adding on its own “clarification” the
majority comes up with the following conclusion: “Thus,
‘[o]bviously, they were later proven wrong’ to have
evaluated the choice of restraint through the lens of
juror-prejudice alone. Nonetheless, because the attorneys
could not be faulted for failing to predict the form of
prejudice announced in Wrinkles II, ‘at the time the decision
No. 05-2747                                              41

was made, it was a prudent one.’ ” Ante at 30. But being
“proven wrong” about the possibility that the defendant
would be prejudiced by the jury seeing him restrained is
a nearly nonsensical concept. After all, the fact that the
Indiana Supreme Court emphasized the effect of the
restraint on the defendant (a form of prejudice long-
recognized, not, as both the Indiana Supreme Court and
my colleagues seem to believe, a novel proposition) as
opposed to the prejudice occasioned by the jury seeing
the belt does not mean that prejudice from a visible re-
straint is no longer a legitimate concern of counsel—i.e.,
that counsel would be “wrong,” as the majority sug-
gests, for considering that form of prejudice. That borders
on the absurd.
   The majority claims its strained interpretation is the
more plausible one in light of first, Indiana procedural
law, and second, the Indiana Supreme Court’s subse-
quent decision in Stephenson. As for state procedural law,
it seems odd indeed to be assessing whether the Indiana
Supreme Court breached its own procedural rules in the
context of a federal habeas claim, see, e.g., McCloud v.
Deppisch, 

, 875-76 (7th Cir. 2005) (construction
of state law irrelevant in habeas proceeding), where it
goes without saying that state law cannot be the basis for
relief. Conversely, if our decision turns on the answer to
a question of state law, something is amiss. On the issue
of the additional affidavits Wrinkles sought to have
admitted in the postconviction court, the state conceded
at oral argument that the Indiana Supreme Court re-
viewed those affidavits “in some fashion.” It seems both
unusual and unhelpful to analyze whether we believe
the Indiana Supreme Court is allowed under Indiana law
to do precisely what the state concedes that it did. More-
42                                               No. 05-2747

over, I do not think the additional affidavits are determi-
native—the Indiana Supreme Court could easily have
rejected the postconviction court’s conclusion based on the
three affidavits indisputably in the record, making the
majority’s preoccupation with whether the supreme
court had the authority under state law to review the
additional affidavits largely irrelevant.
   The majority’s unlikely interpretation also ignores the
procedural context. First, the factual issue was squarely
presented to the Indiana Supreme Court. Second, the
Court suggests that it reviewed all seven juror affidavits
despite the postconviction court’s refusal to do so; it
referred to the belt being conspicuous to “at least seven”
jurors. See Wrinkles 

. Third, because
no jurors testified at the postconviction hearing, the
supreme court was at no disadvantage compared to the
trial court in evaluating the credibility of the jurors’
statements, and so there is no reason to defer to the trial
court’s interpretation. Finally, the supreme court made
statements inconsistent with the factual finding of the
postconviction court. The only logical conclusion is that
the Indiana Supreme Court supplemented the record
with its own finding that a number of jurors were
aware that Wrinkles was restrained by a stun belt.
  The majority protests that such a conclusion cannot be
drawn because, “[h]ere, Wrinkles did not appeal the post-
conviction court’s refusal to admit the additional
affidavits into evidence,” ante at 24 (emphasis in original).
Not only is this line of argument a red herring, it is
simply untrue. In fact, Wrinkles did appeal the post-
conviction court’s refusal to admit the additional affidavits.
Specifically, Wrinkles’s brief on appeal to the Indiana
Supreme Court states that “Wrinkles attempted to admit
No. 05-2747                                                     43

affidavits from four additional jurors who knew
Wrinkles was restrained. The post-conviction court er-
roneously denied Wrinkles’ motion to supplement the
record with these affidavits.” (Brief for Petitioner-Appel-
lant at 19 n.6, Wrinkles v. Indiana, No. 82C01-9407-CF-447.)
The fact that, contrary to the majority’s repeated insistence
otherwise, see ante at 24, Wrinkles placed the issue before
the Indiana Supreme Court makes the court’s reference
to the jurors’ awareness of the belt all the more straight-
forward.
   Moreover, whether the Indiana Supreme Court did or
did not formally admit the additional affidavits is in no
way as determinative as my colleagues suggest. The
three affidavits that were originally admitted all estab-
lish the jurors’ knowledge of the stun belt; and Wrinkles
vigorously argued to the supreme court in a properly
preserved appeal that the postconviction court’s con-
trary finding was clearly erroneous. Those three affidavits
alone established the jurors’ knowledge; it is only the
source of that knowledge that was unclear. Neither the
testimony of Wrinkles’s attorneys (regarding the belt’s
visibility) nor the affidavit from one of the bailiffs3 (regarding



3
  Notably, although the majority emphasizes the bailiff’s
affidavit, his sworn testimony that he was “sequestered with
the jury for the entire duration of the trial” was later shown to
be inaccurate. That bailiff eventually submitted a supple-
mental affidavit clarifying that he was temporarily absent from
the trial and another bailiff took over his duties during that
time. Nor was this bailiff the only one assigned to the trial; thus
there is little to the postconviction court’s suggestion that
the bailiff’s affidavit contradicted Kenneth Ranes’s affidavit
that he believed “the bailiff” told jurors about the stun belt.
44                                              No. 05-2747

his own communication with jurors and not ad-
dressing any other possible source) contradicts the
jurors’ testimony that they knew about the belt. And the
state did not produce a single counteraffidavit from a
juror who was not aware of the belt. As I have stated, to
the extent there was no oral testimony by the jurors, and
the issue was decided on the basis of the affidavits alone,
there is no reason to defer to the postconviction court’s
interpretation of the written testimony over the Indiana
Supreme Court’s.
  The Indiana Supreme Court’s discussion of Wrinkles II
in Stephenson likewise does nothing to undercut the
plain language of the disputed passage. In a confusing
passage devoted to “explaining” why “obviously, they
were later proven wrong” means wrong about some
other issue than the one identified in the preceding sen-
tence, the majority resorts to yet another Indiana Su-
preme Court case on stun belts. But it is unclear how
Stephenson, which does indeed discuss Wrinkles II, sheds
any light on whether the court believed the jurors knew
about the stun belt in Wrinkles’s case. The majority first
explains its reliance on Stephenson by analogizing it to a
situation where “an ensuing state supreme court decision
affects a disputed finding in a previous decision.” Ante at
32. But the examples cited provide no precedent for
resorting to a later opinion to clarify a state court’s find-
ing of fact in an earlier, unrelated proceeding. The sup-
posedly “comparable” case relied on by the majority—
Tibbs—demonstrates the point. There the United States
Supreme Court referred to a later pronouncement by
the Florida Supreme Court to resolve ambiguity in the
earlier opinion in the same case; to be sure, subsequent
pronouncements in the same case may illuminate the
No. 05-2747                                               45

basis of a state court decision—as in Tibbs when a case is
reversed and then retried and the court in the second
appeal comments on its rationale in the first appeal. But
using an unrelated subsequent state court opinion to
interpret the meaning of case-specific language in a
previous case strikes me as, if not unprecedented (cer-
tainly the majority points to no truly analogous scenario),
highly unusual.
  At all events, Stephenson is hardly so illuminating as the
majority suggests. My colleagues point out that Stephenson
“tracks” the reasoning from Wrinkles II by recreating the
decision facing Wrinkles’s counsel at the time and their
concern with whether the jury would see the belt as
opposed to what effect the device would have on Wrinkles.
But the fact that the Indiana Supreme Court repeated in
Stephenson its mistake in Wrinkles—excusing counsels’
objectively deficient performance—sheds no light on the
meaning of “obviously, they were later proven wrong.”
Notably, the court in Stephenson concluded that the
jurors in that case did see the defendant’s stun belt.
But despite the discussion that “tracks” its reasoning in
Wrinkles II, the court nowhere distinguishes Wrinkles II
on the basis that the jurors in that case did not know
about the stun belt. Stephenson’s explicit finding that the
jurors in that case were aware of the stun belt still did not
lead the court to conclude that counsel were deficient. See

. If anything, the supreme
court’s repetition in Stephenson of its mistake regarding
counsels’ effectiveness confirms that the court failed, in
both Wrinkles II and Stephenson, to see that failure to
object to restraints imposed without particularized justifi-
cation amounts to objectively deficient representation. The
court’s inability to appreciate this in Stephenson makes it
46                                                No. 05-2747

all the more obvious that it recognized in Wrinkles II that
the jurors were aware of the belt, but erroneously
deemed that fact irrelevant in light of its misplaced focus
on the fact that the trial court would have (incorrectly)
overruled an objection to the stun belt. Compare Wrinkles 

and 

.
   Finally, the majority places great weight on the fact that
the Indiana Supreme Court was considering the “choice of
restraint facing Wrinkles’s attorneys at trial in light of the
only theory of prejudice then available—the ‘effect on the
jurors.’ ” Ante at 27. But neither the majority nor the Indi-
ana Supreme Court is correct that the jury’s diminished
impartiality was the only legally recognized form of
prejudice at the time of Wrinkles’s trial. Both the United
States Supreme Court and lower courts have long recog-
nized that the harm flowing from visible restraints is
threefold. In addition to the potential effect on the jury’s
impartiality, the Supreme Court in 1970 recognized that
restraints may interfere with the accused’s right to assist
in his defense. See Illinois v. Allen, 

, 344 (1970)
(“[O]ne of the defendant’s primary advantages of being
present at the trial, his ability to communicate with his
counsel, is greatly reduced when the defendant is in a
condition of total physical restraint.”). In Deck v. Mo., 

, 631 (2005), the Supreme Court refers to the
“ ‘ancient’ English rule” forbidding shackles and bonds
absent a compelling justification—a rule formed in part out
of concern that the restraints not interfere with a defen-
dant’s presentation of his defense: “ ‘If felons come in
judgment to answer, . . . they shall be out of irons, and all
manner of bonds, so that their pain shall not take away
any manner of reason, nor them constrain to answer, but
at their free will.’ ” See 

(quoting 3
No. 05-2747                                                  47

E. Coke, Institutes of the Law of England). Lastly, Allen points
out that the use of visible restraints is an affront to the
dignity of judicial proceedings. 

. Thus,
at least from Allen onward, courts have recognized
three distinct harms flowing from the use of visible re-
straints: (1) prejudice to the jury’s impartiality, (2) preju-
dice to the defendant’s ability to participate in his de-
fense, and (3) damage to the dignity of the proceedings. See,
e.g., 

(recognizing “three fundamental
legal principles” animating the “judicial hostility” towards
visible restraints) (emphasis added); Harrell v. Israel, 

, 635 & n.3 (7th Cir. 1982) (citing Allen to support
three reasons given for the rule against physical restraints);
Coates v. State, 

, 169 (Ind. App. 1985) (recog-
nizing that restraints distract defendant’s “thought pro-
cess”); People v. Brown, 

, 1363 (Ill. App.
1977) (recognizing the prejudicial effect of restraints on
jury’s feelings about defendant, the possibility that shackles
would impair defendant’s ability to communicate with
counsel, and the fact that shackles detract from “dignity
and decorum of judicial process”).
   Thus, there is no basis for the majority’s attempt to
explain away the clear import of the phrase “[o]bviously,
they were later proven wrong” by reasoning that the
Indiana Supreme Court must have been excusing coun-
sels’ failure to predict that the effect on a defendant would
one day become a legal rationale forbidding the use of
restraints at trial. That rationale was available to counsel
at the time of Wrinkles’s trial. And the fact that counsel
failed to “predict” what was in fact a long-settled rule
of law is not remotely surprising: lead trial counsel testi-
fied at the postconviction hearing that, “I did not know
that there was a law about shackling.” If anything, the
48                                              No. 05-2747

Indiana Supreme Court’s failure to acknowledge the
longstanding recognition that restraints also prejudice the
accused’s ability to participate in his defense simply
reaffirms that the Indiana Supreme Court unreasonably
applied clearly established law. Cf. Williams v. Taylor, 

, 407 (2000) (state court unreasonably applies
Supreme Court precedent when it “unreasonably refuses to
extend” a legal principle “to a new context where it should
apply”). As this court recently recognized, “law” refers not
just to Supreme Court holdings, but “legal principles
derived from the holdings in Supreme Court opinions.”
Samuel v. Frank, 

, 569 (7th Cir. 2008). Thus, the
fact that earlier law may not have addressed stun belts in
particular as opposed to restraints generally is of no
consequence.
  It is well established that our obligation to defer to the
factual findings of state courts extends to appellate courts.
See Sumner v. Mata, 

, 546-47 (1981); Miranda v.
Leibach, 

, 999 (7th Cir. 2005); Mendiola v.
Schomig, 

, 592-93 (7th Cir. 2000); Sprosty v.
Buchler, 

, 643 (7th Cir. 1996); Holland v.
McGinnis, 

, 1048 (7th Cir. 1992). The finding
that some jurors knew about the stun belt is amply sup-
ported by the record, and we must defer to it. See 

(presumption of correctness applies to
“implicit resolution of a factual dispute that can be fairly
inferred from the state court record”). In contrast, the
majority, like the state postconviction court, can point to
no record evidence supporting the conclusion that the
jurors were not aware of the belt. Instead, it shores up its
unlikely interpretation with a foray into state law positing
that under Indiana law, the Indiana Supreme Court
probably would not do what common sense suggests
No. 05-2747                                               49

that it did when it commented that Wrinkles’s attorneys
did not think jurors would see the stun belt but “they
were later proven wrong.”
  Of course, even finding that some jurors were aware of
the stun belt did not lead the Indiana Supreme Court to
conclude that Wrinkles’s attorneys were deficient for
failing to object. That conclusion, rightly rejected by my
colleagues, is largely based on the Court’s determination
that any objection would have been futile due to the trial
court’s practice of routinely requiring restraints, as well
as the fact that Wrinkles’s guilt was not in question. I will
not dwell on the erroneousness of that analysis, but it is
worth emphasizing that counsel’s obligation to object
for the record was more, not less, urgent where the judge
imposed an extralegal burden on Wrinkles without even
attempting to justify it. Moreover, counsels’ failure to
object—whatever the probable ruling—contributed in
large part to the procedural hurdles Wrinkles now must
clear in order to get relief, compounding their error. The
majority appropriately concludes, therefore, that Wrin-
kles’s counsel were deficient for failing to object to the
use of restraints without justification.
  After parting ways with the Indiana Supreme Court on
the first prong of Strickland, however, the majority then
relies on its strange interpretation of that Court’s factual
finding to conclude that Wrinkles was not prejudiced by
his attorneys’ failure to object. “Without evidence that
the jurors saw the stun belt, or that he was otherwise
affected by the stun belt throughout trial, Wrinkles
50                                                    No. 05-2747

cannot demonstrate prejudice.”4 Ante at 35. Constrained
by the Indiana Supreme Court’s finding that a number
of jurors knew about the stun belt as well as the record
evidence that the stun belt did indeed affect Wrinkles
throughout trial, I would reach a different result.
  It has long been established that visible restraints are
so prejudicial that they are permissible only where a
“special need” is present. 

; see Hol-
brook v. Flynn, 

, 568-69 (1986); 

. Routine use of restraints is prohibited; their employ-
ment must be preceded by a judicial finding that an
essential state interest such as physical security, escape
prevention, or courtroom decorum requires the use of
restraints on a particular defendant. See 

. So “inherently prejudicial” are visible restraints,

, that no “actual prejudice” need
be demonstrated by a defendant asserting a deprivation
of due process based on their unjustified use, 

.
  Wrinkles’s situation cannot be distinguished from the
line of cases addressing visible restraints because the
stun belt was “visible” in the only meaningful sense to
any juror who was aware that he was restrained. See Roche
v. Davis, 

, 483 (7th Cir. 2002). In this sense,
the majority has seized upon yet another red herring,
repeatedly referencing Wrinkles’s inability to establish


4
  I have already commented that the majority’s interpretation
of the Indiana Supreme Court’s statements on this matter
strains credulity. But, in the face of the juror affidavits admitted
into the record, the majority’s statement that Wrinkles is
“without evidence” that jurors knew about (the more appro-
priate term than “saw”) the stun belt is wholly inaccurate.
No. 05-2747                                                     51

that the belt was “visible” or “seen.” See, e.g., ante at 2, 9, 11,
13-14 n.3, 20-22, 28. But of course the prejudice caused by
restraints stems from the jurors’ knowledge of them, not
their “visibility,” and the false distinction the majority
weaves throughout its opinion is an unfortunate distrac-
tion.
  Given the jurors’ awareness of the belt, every type of
prejudice that the Supreme Court has associated with the
use of restraints is implicated in this case. First, the mes-
sage sent by restraints—that the judicial system itself
already believes the defendant to be uncontrollably
dangerous—undermines the presumption of innocence.

. Although Wrinkles admitted to
killing the victims, the jury had to decide what level of
homicide he had committed, and the burden was on the
state to prove that he committed knowing murder. The
jury’s decision on the level of homicide, as much as any
other determination of guilt, could be tainted by their
knowledge of the stun belt.
  Second, physical restraints can interfere with the defen-
dant’s ability to participate in his own defense. 

The most obvious example of that in this case is when
Wrinkles’s attorney warned him not to “make any
sudden moves” in response to Wrinkles asking where he
should put his hands while testifying. This exchange came
on the heels of an incident midway through trial when
the belt began “buzzing.” The trial had to be halted as a
result and the same belt was put back on Wrinkles after
investigation revealed that the buzzing was caused by
a low battery. No doubt this incident and the constant
fear of an unannounced, unstoppable 50,000-volt shock
impaired Wrinkles’s ability to participate in his defense.
Not surprisingly, Wrinkles’s attorney described his
52                                               No. 05-2747

client as “petrified” by the vibrations that accompanied
the “buzzing” belt. Third, the dignity of judicial proceed-
ings suffers when a participant is in restraints. 

32. That the trial had to be halted due to the belt’s “buzz-
ing” provides a stark example of this last concern.
  The prejudice inflicted by restraints is particularly
dangerous in a case such as this, where any one factor
could have been decisive for the jury in both the guilt
and penalty phases given the nature and strength of
Wrinkles’s defense. As appellate counsel explained, the
use of the belt negated the entire theory of the defense:
that Wrinkles was not a dangerous or violent person by
nature but had “snapped” under extreme circumstances
such as the bitter separation from his family, a recent
involuntary commitment to a psychiatric facility, and a
severe drug addiction. Indeed, sufficient evidence was
adduced at trial to instruct the jury on voluntary man-
slaughter (which entails “sudden heat”) and reckless
homicide in addition to knowing murder. Surely a pre-
sumption that Wrinkles was so dangerous as to require
restraints would make a conviction for knowing
murder more likely than it might have been based on
the evidence alone. See 

(visible
restraints “could instill in the jury a belief that the defen-
dant is a dangerous individual who cannot be controlled,
an idea that could be devastating to his defense.”) The
prejudice was renewed during the sentencing phase,
when the jurors who were aware of the stun belt had to
decide whether to recommend death or imprisonment
while believing Wrinkles was still violent and dangerous.
Particularly where the mitigating factors far outnum-
bered the one aggravating factor allowing for the death
penalty, see 

, the potential influence
No. 05-2747                                               53

of the stun belt cannot be overstated. Accordingly,
I must conclude that Wrinkles was prejudiced by the
failure of his attorneys to object to the use of a stun belt.
  Finally, even if I could accept my colleagues’ strained
characterization of the Indiana Supreme Court’s state-
ments on the visibility of the stun belt, I would find it
difficult to accept their reflexive conclusion that Wrinkles
was not prejudiced. The jurors’ awareness of the restraint
aside, Wrinkles also argues that he could not fully and
meaningfully participate in his trial while strapped to a
torture device. This argument was a logical application of
existing Supreme Court precedent on restraints, and
competent counsel would surely have raised it in response
to the trial court’s illegal “policy.” The majority dismiss-
ively concludes that Wrinkles did not present “evidence”
that the stun belt “affected his abilities to participate in
his own defense,” ante at 35. Not only did he present
such evidence (see discussion ante at 51-52), in my view a
court need not abandon its common sense when con-
sidering whether being forced to wear, with no justifica-
tion, a device that delivers an unstoppable, 8-second,
50,000-volt shock might affect a defendant’s participation
and demeanor, and, relatedly, the jury’s impressions of
him. For this reason, and more importantly because of the
prejudice stemming from the jurors’ awareness that
Wrinkles was restrained with a stun belt, I respectfully
dissent.




                           8-12-08