In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1833
F REDDIE L. B YERS, JR.,
Petitioner-Appellant,
v.
JAMES B ASINGER, Superintendent
of the Wabash Valley Correctional Facility,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 08 CV 240—Allen Sharp, Judge.
A RGUED F EBRUARY 25, 2010—D ECIDED JULY 9, 2010
Before C UDAHY, E VANS, and S YKES, Circuit Judges.
C UDAHY, Circuit Judge. After a jury trial, the petitioner,
Freddie Byers, Jr., 1 was convicted of two counts of first-
degree murder, one count of attempted murder and one
1
According to the petitioner (and his father) the petitioner’s
name is Freddie Byers, III, and his father’s is Freddie Byers, Jr.
Given that the parties on appeal refer to petitioner as “Jr.” and
the caption is officially “Jr.,” we use “Jr.” in this opinion.
2 No. 09-1833
count of robbery. The Supreme Court of Indiana
affirmed on direct appeal, Byers v. Indiana, 709 N.E.2d
1024 (Ind. 1999), and, after the Indiana Court of Appeals
denied his petition for post-conviction relief, 878
N.E.2d 542, 2007 WL 4531828 (Ind. App. Ct. Dec. 27,
2007), the Indiana Supreme Court denied transfer,
891 N.E.2d 41 (Ind. 2008). The district court denied
Mr. Byers’ habeas petition, in which Mr. Byers argued
that his trial counsel performed deficiently. Byers v.
Superintendent, No. 3:08 cv 0240 AS, 2009 WL 537662
(N.D. Ind. Mar. 4, 2009). We granted Mr. Byers a certif-
icate of appealability on the question whether he had
been denied effective assistance of counsel. We affirm
the district court’s denial because, even if Mr. Byers
successfully exhausted his claim, it lacks merit.
I. Background
Mr. Byers was convicted based on the following events.
On January 30, 1997, James Edison, a guest at Bennie
Spears and Almeka Dodds’ house in South Bend, opened
the door to “Flint” (a/k/a petitioner Mr. Byers) and “Gill.”
Banter among the men quickly turned serious. Dodds, in
the next room, heard Spears warning Flint not to point his
gun at Spears and then heard it discharge. She entered
to see Flint, who had visited their home a “whole bunch
of times,” holding a gun and Spears shot and wounded
on the ground. Flint grabbed Dodds by the hair and
demanded she tell him where the money was, while Gill
locked Dodds’ children in the bathroom. Flint instructed
Gill to cut Edison’s neck with a kitchen knife and to
No. 09-1833 3
take Dodds to the basement and shoot her in the head.
Luckily for Dodds, Gill was unskilled at his first task,
and Edison attempted an escape out the window. Both
Flint and Gill pursued Edison and shot him. Back in
the home, they fired bullets into the basement where
Dodds hid, but did not hit her. She ran to a neighbor’s
house once she thought her house was clear. The police
arrived to find Dodds’ children locked in the bathroom,
unharmed. Edison and Spears died of their wounds.
Dodds told the police the shooter she called Flint or Fred
had crooked teeth and a scar on his face. Dodds also
suggested that the police already had a picture of Flint
from an incident at Flint’s girlfriend’s house on the
evening of a prize fight. They did have such a photo,
and Dodds identified Flint in an array.
At trial, Dodds was the prosecution’s main witness.
No physical evidence or usable fingerprints linked
Mr. Byers to the offense. To demonstrate the errors in
Dodds’ initial description of Flint, Mr. Byers walked in
front of the jurors to show them that his teeth were
straight and his face scarless. During a test run of this
walk before the jury entered, the trial judge asked:
“What’s [Mr. Byers’] anklet thing? Is that visible?
Mr. Byers, come over here please.
It’s okay. That’s not so bad. Okay.”
At an evidentiary hearing in post-conviction pro-
ceedings, Mr. Byers contended that this “anklet thing”
was a shackle or restraint. At trial, the court made no
findings about Mr. Byers’ need for shackles or restraints
4 No. 09-1833
in the courtroom. Indeed, there was no discussion of
Mr. Byers’ wearing restraints in court apart from the
anklet-related comments of the trial judge.
Mr. Byers’ trial was interrupted by several spectators’
outbursts. In a sidebar prior to his opening statement, the
prosecutor noted comments from the gallery—possibly
by the victims’ families, although the exact words or the
identities of the speakers do not appear in the trial
record—while the court read the preliminary instruc-
tions. The prosecutor suggested that the court admonish
the spectators to be respectful; Mr. Byers’ trial counsel
agreed and the court did so after excusing the jury. At
his post-conviction hearing, Mr. Byers testified that, at
this point in the trial, Dodds’ mother and sister said “you
guilty mother fucker, I hope you fry. We shouldn’t be
having a trial anyway, you know you’re guilty, you
know you did it. Things of that nature.” Mr. Byers
testified that the jury heard Dodds’ relatives but that he
was paying attention to his lawyer at the time and not
looking at the jury. Later, during Dodds’ testimony,
authorities removed Dodds’ brother from the courtroom,
possibly for outstanding warrants. Dodds’ mother,
Ms. Jeannie Dunlap, reacted by apparently shouting and
making a scene and, after excusing the jury, the trial court
addressed her and eventually jailed her overnight for
contempt of court. Mr. Byers testified that he knew the
jurors heard this incident because their heads turned.
After these interruptions and at various points during the
trial, after excusing the jury, the judge admonished the
spectators to maintain proper courtroom decorum out of
respect for the jury’s difficult job. At his post-conviction
No. 09-1833 5
hearing, Mr. Byers described a third incident, although
there is no record of it, when two girls taunted “you
are going to get found guilty, you gonna get found
guilty.” Mr. Byers testified that he wasn’t sure that the
jury heard them. Defense counsel never objected, nor
requested jury questioning nor moved for a mistrial
based on the disruptions.
Mr. Byers had not testified at his trial. His lawyer
argued that, on the day in question, Mr. Byers was with
his very-pregnant girlfriend, where they were watching
movies at Mr. Byers’ father’s house in Chicago. Mr. Byers’
father and girlfriend corroborated this story. The jury
convicted Mr. Byers on all counts, and he was sentenced
to the maximum 200 years’ imprisonment. As noted, the
conviction and sentence were affirmed on direct appeal.
See Byers v. Ind., 709 N.E.2d 1024 (Ind. 1999).
Mr. Byers collaterally attacked his conviction based
on ineffective assistance of counsel and other grounds.
At all levels of state post-conviction review, he asserted
an ineffective-assistance-of-counsel claim based on the
failure of trial counsel to address the outbursts at trial
(the outbursts ground). The post-conviction courts
denied relief on this ground because he failed to show
that some of the outbursts occurred or that any juror or
prospective juror heard the spectators’ statements, and,
therefore, he failed to prove deficient performance.2
2007 WL 4531828, at *6. In federal habeas proceedings,
2
Mr. Byers’ trial and appellate counselors testified via
affidavits that they had no recollection of the proceedings
or their strategy independent of the record evidence.
6 No. 09-1833
the district court held that Mr. Byers’ claim failed
because the outbursts did not call into question
Mr. Byers’ guilt and because there was no evidence
that the jury was prejudicially affected. 2009 WL 537662,
at **3-4.
Unlike his outbursts ground, Mr. Byers was less con-
sistent in his attempt to exhaust his claim based on trial
counsel’s failures to object to Mr. Byers’ purported re-
straints at trial and to demand that the trial judge
make findings before allowing Mr. Byers to appear
before the jury in restraints (the restraints ground). At
an evidentiary hearing before the state post-conviction
trial court, Mr. Byers submitted a list, including the
simple word “restraints,” of issues his post-conviction
counsel had inadequately addressed. Mr. Byers also
testified that he was in restraints during trial, that his
trial counsel didn’t address his request to remove the
restraints and that the judge made no findings that re-
straints were necessary. Mr. Byers claimed that the
trial judge and jury knew he was restrained because he
had to walk in front of them when he showed them
his teeth. Mr. Byers, however, did not testify explicitly
that the jury saw the restraints. The post-conviction
trial court ordered Mr. Byers’ post-conviction counsel
to file a supplemental amended petition to address
Mr. Byers’ list. In complying, counsel argued that no
further evidentiary hearing was warranted and argued
that Mr. Byers’ “restraints” issue had no merit:
In this case defendant was required to wear ankle
restraints throughout the trial and on at least one
occasion, appeared before the jury in those re-
No. 09-1833 7
straints. Trial counsel could, and probably should
have requested a mistrial based upon the ankle re-
straint observation by the jury. Which is deficient
performance on the part of counsel. However, it
would be difficult to show any resulting harm at
the time it occurred and certainly near impossible
at this point in time. Such a showing would
necessitate contemporaneous voir dire of the jury
for existence of any prejudice to the defendant’s
fair trial rights prior to establishing grounds for a
mistrial request. Such an inquiry cannot be made at
the present later date. . . . The general rule precludes
presenting a defendant to the jury in handcuffs or
shackles, but a court may need to do so in certain
exceptional circumstances when restraint is neces-
sary to prevent the escape of the prisoner, to protect
those in the courtroom, or to maintain order.
Mr. Byers, not satisfied, moved the court to strike the
supplemental amended petition and asked for time to
find a new counsel. Mr. Byers failed to find substitute
counsel and requested that his post-conviction counsel
continue representation, which had the effect of aban-
doning his motion.3 His post-conviction petition was
3
Mr. Byers styled this filing “Motion to Proceed with Post-
Conviction Relief Evidentiary Hearing,” but did not request
an evidentiary hearing in the body of the Motion. He con-
cluded: “Wherefore the Petitioner prays that this Court will
Grant this Motion to Proceed With the Post-Conviction Relief
Evidentiary Hearing’s portion of Findings of Fact and Con-
(continued...)
8 No. 09-1833
denied. Byers v. Indiana, No. 71DO4-9701-CF-0059 (St.
Joseph County Ct. Feb. 6, 2007). Before the state post-
conviction appellate court Mr. Byers, acting pro se,
attacked post-conviction counsel’s performance based
on his restraints at trial (although he cited caselaw dis-
cussing federal law relating to trial counsel and restraints:
Roche v. Davis, 291 F.3d 473, 483 (7th Cir. 2002); Wrinkles
v. Indiana, 749 N.E.2d 1179, 1195 (Ind. 2001)). The
appellate court denied his petition based on Mr. Byers’
non-constitutional claim of ineffective assistance of post-
conviction counsel without discussing his trial counsel’s
performance regarding his restraints. 2007 WL 4531828,
at *5-8. After the Supreme Court of Indiana denied
transfer, Byers v. State, 891 N.E.2d 41 (Ind. 2008),
Mr. Byers filed a federal habeas petition. The district
court found that Mr. Byers had procedurally defaulted
(by failing to exhaust) his restraints ground be-
cause Mr. Byers proceeded with post-conviction counsel
knowing that his counsel would argue against his re-
straints ground. See 2009 WL 537662, at *3.
II. Discussion
A. Mr. Byers did not exhaust his claim on the re-
straints ground.
We cannot review a habeas petitioner’s constitutional
issue unless he has provided the state courts with an
3
(...continued)
clusions of Law; and any other pleading that this Court deems
to be just and proper in the Premises.”
No. 09-1833 9
opportunity to resolve it “by invoking one complete
round of the state’s established appellate review pro-
cess.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see
28 U.S.C. § 2254(b)(1)(A). A petitioner must fairly present
his federal claims to the state courts by arguing both
the law and the facts underlying them. Baldwin v. Reese,
541 U.S. 27, 29, 32 (2004) (explaining that, to comply
with the requirement that the claims assert violations of
the federal constitution, the petitioner may simply label
his claim “federal” or cite cases that decide the claim on
federal grounds); Stevens v. McBride, 489 F.3d 883, 894
(7th Cir. 2007); Anderson v. Benik, 471 F.3d 811, 815 (7th
Cir. 2006). “[T]he burden is on the petitioner to raise
his federal claim in the state court at a time when state
procedural law permits its consideration on the merits,
even if the state court could have identified and
addressed the federal question without its having been
raised.” Bell v. Cone, 543 U.S. 447, 451 n. 3 (2005) (citing
Baldwin). We use four factors to evaluate whether a peti-
tioner has “fairly presented” his claim: “1) whether the
petitioner relied on federal cases that engage in a con-
stitutional analysis; 2) whether the petitioner relied on
state cases which apply a constitutional analysis to similar
facts; 3) whether the petitioner framed the claim in terms
so particular as to call to mind a specific constitutional
right; and 4) whether the petitioner alleged a pattern of
facts that is well within the mainstream of constitutional
litigation.” See White v. Gaetz, 588 F.3d 1135, 1139 (7th
Cir. 2009).
When a petitioner has not properly asserted his
federal claims at each level of review and it is clear that
10 No. 09-1833
the state courts would now hold those claims pro-
cedurally barred, federal courts may not address those
claims unless the petitioner demonstrates cause and
prejudice or a fundamental miscarriage of justice if the
claims are ignored. See McGee v. Bartow, 593 F.3d 556,
565 (7th Cir. 2010); Woods v. Schwartz, 589 F.3d 368, 373
(7th Cir. 2009). Mr. Byers argues that he exhausted the
factual basis for his restraints claim by arguing it in
(a) his attorney’s post-conviction supplemental amended
petition, (b) his pro se Verified Motion to Strike and
(c) his pro se appellate brief.
1. Post-conviction proceedings.
Even though Mr. Byers presented his restraints ground
to the trial court through his supplemental amended
petition, he did not present it on appeal. Mr. Byers, ap-
pearing pro se, presented an ineffective-assistance-of-
post-conviction-counsel claim rather than an ineffective-
assistance-of-trial-counsel claim. At different levels of
post-conviction or habeas proceedings a “petitioner may
reformulate [his] claims so long as the substance of the
claim remains the same.” Sweeney v. Carter, 361 F.3d 327,
333 (7th Cir. 2004) (finding exhaustion because all claims
focused on counsel’s advice regarding a use-immunity
agreement even though he asserted varying amend-
ments as the basis for the claim); see also United States
v. Fairman, 707 F.2d 936, 940 (7th Cir. 1983). But, we have
held that an ineffective-assistance-of-post-conviction-
counsel claim does not exhaust an ineffective-assistance-of-
trial-counsel claim because the claims are more than a
No. 09-1833 11
variation in legal theory. See Howard v. O’Sullivan, 185
F.3d 721, 724-26 (7th Cir. 1999) (explaining that there is
no constitutional guarantee of post-conviction trial coun-
sel); see also Spreitzer v. Schomig, 219 F.3d 639, 645-47
(7th Cir. 2000) (holding that petitioner did not present
his ineffective-assistance-of-sentencing-counsel claim to
the Illinois Supreme Court when he raised an ineffective-
assistance-of-post-conviction-counsel claim).
Howard and Spreitzer’s petitioners, however, were
represented by counsel. See Spreitzer, 219 F.3d at 645;
Howard, 185 F.2d at 725. Mr. Byers, as noted, appealed
his post-conviction petition pro se, and a court should be
willing to construe more liberally a pro se litigant’s
claims than those of a counseled litigant. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). For example, we have
excused the error of a pro se petitioner who simply misla-
beled his claim. See Lewis v. Sternes, 390 F.3d 1019, 1027
(7th Cir. 2004) (holding that a pro se post-conviction
petition making a claim labeled ineffective assistance of
trial counsel for failure to make a Brady claim could be
interpreted as simply making a Brady claim, based on
the actual language of the petition).
Applying these standards, we find that Mr. Byers
did not exhaust his restraints claim. In his pro se state
post-conviction appellate brief, Mr. Byers raised
several claims: ineffective assistance of post-conviction
counsel for failure to represent petitioner in a manner
that comports with due process of law, and ineffective
assistance of both trial and appellate counsel for failure
to adequately address the outbursts at trial. Mr. Byers’
12 No. 09-1833
arguments about his restraints at trial are tightly couched
in an argument about the ineffective assistance of post-
conviction counsel. Even with the liberal trend marked
by Baldwin and the generous construction we give to
pro se petitioners’ claims, Mr. Byers did not meet his
burden of fair presentment on appeal given the varia-
tion in legal theories between his post-conviction pro-
ceedings and his state appeal, namely his presentment
of his restraints claim only as representing ineffective-
ness of post-conviction counsel.4
2. Cause and prejudice.
Alternatively, Mr. Byers claims he demonstrated cause
and prejudice to excuse his default because his post-
conviction counsel, acting as Mr. Byers’ agent, failed to
satisfy his duties to his principal by ignoring Mr. Byers’
directives to raise the restraints claim. Wainwright v.
Sykes, 433 U.S. 72 (1977). Mr. Byers cites Clemmons v. Delo,
for this agency-law-based argument. See 124 F.3d 944, 947-
49 (8th Cir. 1997) (finding petitioner exhausted his
claims when he moved the state supreme court to
allow him to raise them when his counsel refused to).
But, as Mr. Byers acknowledges in explicitly declining to
make this argument, ineffectiveness of post-conviction
counsel does not supply “cause” in the cause-and-preju-
dice formula. See Coleman v. Thompson, 501 U.S. 722, 753
4
There is no question that Mr. Byers subsequently addressed
the claim in his appeal to the Supreme Court of Indiana.
No. 09-1833 13
(1991); Szabo v. Walls, 313 F.3d 392, 397 (7th Cir. 2002).
Mr. Byers has not demonstrated “cause” sufficient to
excuse his default.5
3. Evidentiary hearing.
Mr. Byers also requests an evidentiary hearing. A
federal court is precluded from holding an evidentiary
hearing on a habeas claim if the petitioner “failed to
develop the factual basis of [the] claim in State court
proceedings.” 28 U.S.C. § 2254(e)(2); see also Williams v.
Taylor, 529 U.S. 420, 437 (2000); Allen v. Buss, 558 F.3d 657,
664 (7th Cir. 2009). In the present case, the post-conviction
trial court asked the parties to request an additional
evidentiary hearing if necessary after Mr. Byers’ post-
conviction counsel investigated Mr. Byers’ claims, in-
cluding the restraints ground. Mr. Byers then proceeded
with counsel whose supplemental amended petition
argued that there was no need for a further evidentiary
hearing. Accordingly, under 28 U.S.C. § 2254(e)(2), we
are precluded from providing Mr. Byers an evidentiary
hearing on this claim.
B. Mr. Byers did not establish a violation of his right
to effective assistance of counsel.
Mr. Byers’ ineffective-assistance-of-counsel claim
related to the outbursts at trial fails on the merits. To
5
Mr. Byers does not argue that a fundamental miscarriage
of justice excuses his default.
14 No. 09-1833
prevail on an ineffective-assistance-of-trial-counsel claim,
the petitioner must demonstrate that (a) his counsel’s
performance fell below an objective standard of reason-
ableness and (b) the counsel’s errors so prejudiced his
defense that it deprived him of a fair trial. Strickland
v. Wash., 466 U.S. 668, 687-88 (1984); Starkweather v. Smith,
574 F.3d 399, 402 (7th Cir. 2009). To show prejudice,
Mr. Byers must prove “that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Strickland, 466 U.S.
at 694.
The Indiana Court of Appeals addressed Mr. Byers’
outbursts ground on the merits, and we review that
court’s decision under the limitations imposed by the
Antiterrorism and Effective Death Penalty Act (AEDPA).
Under the AEDPA, a federal court may grant habeas
relief only if the state court’s adjudication of the peti-
tioner’s constitutional claims was based on unreasonable
fact-finding or was contrary to, or involved an unreason-
able application of, clearly established federal law or
an unreasonable determination of the facts. 28 U.S.C.
§ 2254(d). Whether a state ruling runs afoul of these
AEDPA standards is a legal determination we review
de novo, but the district court’s factual determinations
are reviewed for clear error. See Smith v. Grams, 565
F.3d 1037, 1043 (7th Cir. 2009).
Mr. Byers first argues that the state court wrongly
rejected his claim that additional outbursts, absent from
No. 09-1833 15
the record, also occurred at trial. The trial record
reveals two disturbances: spectator’s comments as
noted by the prosecutor before opening argument and
Ms. Dunlap’s commotion. Mr. Byers testified at his eviden-
tiary hearing that during the first recorded disturbance
and during a third, unrecorded disturbance, the victim’s
family or other gallery members made comments
about his guilt. The state appellate court reasonably
concluded that there was no factual basis for finding
that the spectators’ outbursts occurred in the manner
Mr. Byers claimed they had. See 2007 WL 4531828, at *6;
28 U.S.C. § 2254(e); Rever v. Acevedo, 590 F.3d 533, 537
(7th Cir. 2010) (“Section 2254(e)(1)’s text makes . . . clear:
‘a determination of a factual issue made by a State
court shall be presumed to be correct.’ ”).
Mr. Byers next contends that the Indiana Court
of Appeals misapplied Strickland when it held that he
did not prove the requisite prejudice at trial. “The bar
for establishing that a state court’s application of the
Strickland standard was ‘unreasonable’ is a high one,
and only a clear error in applying Strickland will support
a writ of habeas corpus.” Allen v. Chandler, 555 F.3d
596, 600 (7th Cir. 2009). While it is well established that
a defendant’s due process rights include a right to an
unbiased and impartial jury, it is equally clear that not
every outburst or disruption warrants a new trial. See
United States v. Olano, 507 U.S. 725, 738 (1993) (holding
that, because “[i]t is virtually impossible to shield jurors
from every contact or influence that might theoretically
affect their vote,” a new trial is only required where
there is discernible prejudice); Irwin v. Down, 366 U.S.
717, 728 (1961).
16 No. 09-1833
We have no record evidence of what was said, and
we cannot not find prejudice stemming from ambiguous
or innocuous comments. In Whitehead v. Cowan, we
found “innocuous” a victim’s mother’s outburst asking
petitioner why he had killed her daughter—an outburst
that occurred when the jury was seated but the judge
had stepped out. See 263 F.3d 708, 724-25 (7th Cir. 2001);
see also United States v. Al-Shahin, 474 F.3d 941, 949
(7th Cir. 2007). In our case, of course, the disturbances
occurred when the trial judge was able to monitor and
address them immediately—which he did by excusing
the jury and admonishing the spectators to maintain
proper etiquette. At the end of trial, the judge ques-
tioned the jury, and not one juror indicated that the
disturbances or any other event affected his or her ability
to render a fair verdict. See Whitehead, 263 F.3d at 726.
Lastly, Mr. Byers attempts to prove prejudice with a
juror’s affidavit in which she testifies that Ms. Dunlap’s
scene frightened her. The government contends that
Mr. Byers has not made the requisite showing, under
§ 2254(e)(2), to allow us to consider the affidavit because
it was first presented to the district court. Williams,
529 U.S. at 432. The district court, without deciding
whether Mr. Byers satisfied § 2254(e)(2), concluded that
the affidavit did not provide evidence that the juror was
incapable of making a fair or impartial decision. We
agree: the affidavit is irrelevant. We will not presume
that the juror was unable to follow instructions just be-
cause she was frightened by Ms. Dunlap’s commotion at
trial, and certainly not that Mr. Byers’ trial would
have ended with a not-guilty verdict. Mr. Byers did not
No. 09-1833 17
meet his burden of proving that, but for the outbursts or
disturbances, the result of his trial would have been
different.6
The judgment of the district court is A FFIRMED.
6
In addition, even if Mr. Byers had not procedurally defaulted
his restraints ground, he cannot prove prejudice, even under
the de novo review required because the state courts did not
reach this issue. See Rompilla v. Beard, 545 U.S. 374, 390 (2005);
Wiggins v. Smith, 539 U.S. 510, 534 (2003). As Mr. Byers notes,
a defendant may advance a Fifth Amendment due process
claim based on evidence that he was wearing visible restraints
at trial, Deck v. Missouri, 544 U.S. 622, 629, 635 (2005), but to
claim a violation of his Sixth Amendment right to counsel, he
must also prove prejudice. See Strickland, 466 U.S. at 692-93. Cf.
Marquard v. Sec’y for the Dep’t of Corr., 429 F.3d 1278, 1313 (11th
Cir. 2005) (explaining that Deck did not affect the Strickland
analysis). Mr. Byers argues that his case turned on the credibility
of Dodds, and, therefore, any erosion of the presumption of
innocence prejudiced him. But Dodds’ credibility was well-
established: she led police to Mr. Byers through her personal
knowledge of him, of his nickname and of his girlfriend, and she
positively identified Mr. Byers in a photographic array. Cf.
Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record sup-
port.”). Mr. Byers hasn’t shown prejudice because the trial
evidence against him is sufficiently robust. As a result, we
would also reject Mr. Byers’ restraints ground on the merits.
7-9-10