F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 8 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GARY CAPSHAW,
Petitioner-Appellant,
v. No. 03-8046
(D.C. No. 02-CV-142-B)
SCOTT ABBOTT, Warden, Wyoming (D. Wyo.)
State Penitentiary; ATTORNEY
GENERAL OF THE STATE OF
WYOMING,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Gary G. Capshaw appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition. Capshaw was convicted of two counts of possession of a
controlled substance with intent to deliver, and one count each of possession of a
controlled substance in an amount exceeding three grams and conspiracy to
deliver a controlled substance in violation of Wyoming Statutes §§ 35-7-1031 and
35-7-1042. His conviction was affirmed on appeal to the Wyoming Supreme
Court. Capshaw v. State , 10 P.3d 560 (Wyo. 2000).
Capshaw filed a petition for state post-conviction relief; all claims in the
petition were ultimately dismissed. Capshaw then filed his federal § 2254 habeas
petition. The district court denied relief, but granted a certificate of appealability
on the issue of: “whether the District Court for the Seventh Judicial District
abused its discretion by delegating its decision to shackle Petitioner to the
Natrona County Sheriff’s Department.” Aplt. App. at 142. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253(a) and we affirm.
I
Because the district court’s order gives a thorough and detailed recitation
of the facts, we will only set forth a brief background of the case. When Capshaw
initially sought post-conviction relief, the state district court dismissed the
petition. The Wyoming Supreme Court affirmed the dismissal on all claims, with
the exception of Capshaw’s claim that his due process rights were violated when
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he was shackled throughout his jury trial. The Wyoming Supreme Court reversed
the state district court decision on that issue and remanded for further
proceedings.
On remand, the state district court conducted an evidentiary hearing to
determine if Capshaw had been unconstitutionally shackled during trial. At the
hearing, Capshaw called a former juror to testify about Capshaw’s appearance
during the trial. The witness testified that he remembered Capshaw appearing in
street clothes. Aplt. App. at 218. The state presented evidence regarding
Capshaw’s escape during his initial appearance in the case and his conviction for
that escape. Id. at 222-230.
After the hearing, the court entered an order denying relief and made
findings, including the following: 1) given Capshaw’s previous escape from
custody, his criminal history, and his status as a “high risk inmate,” compelling
reasons existed to justify the use of shackles during trial; 2) Capshaw failed to
establish a violation of a constitutional right because there was no showing that
he was viewed by the jury in shackles during the trial, and there was no showing
of prejudice as a result of the use of the shackles. Id. at 206-07 ¶¶ 13, 17.
Capshaw petitioned for review to the Wyoming Supreme Court. That court
denied the petition, affirming the findings of the state district court because
“there are a significant number of cases that find that shackling was justified as a
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result of a prior escape” and “this is not a case where the evidence shows that
jurors actually observed the shackles during trial[;] . . . [i]nstead, this is a case
where the materials do not establish that any jurors observed petitioner in
shackles to his prejudice.” Id. at 208 (citation omitted).
In response to Capshaw’s federal habeas petition, the district court found
that the state court’s determination that Capshaw should be shackled because he
was an escape risk was neither contrary to, nor an unreasonable application of,
clearly established federal law. Capshaw also argued that the state district court
was required to hold a hearing on the record before trial began and state its
findings for the necessity of shackling. The district court noted that Capshaw
never objected to being shackled before or during trial, and, as a result, no
findings were made on the record regarding whether it was necessary to shackle
Capshaw during trial. The district court concluded that although some federal
circuit courts of appeal have expressed a policy that federal district courts should
make findings of fact to justify shackling, the Supreme Court has never held that
this preference is required by the Constitution.
II
In order to be entitled to habeas relief, Capshaw must demonstrate that the
state court’s decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
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United States,” or was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1) & (2). Further, state court findings are presumed to be correct
unless the petitioner rebuts this presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
On appeal, Capshaw argues that clearly established federal law requires the
trial court to make explicit findings on the record to justify shackling a defendant.
Second, he argues that because the trial court effectively delegated the shackling
decision to the Sheriff’s Department, instead of exercising its own discretion, the
Wyoming Supreme Court’s determination that shackling was justified by a prior
escape was based on an unreasonable determination of the facts and an
unreasonable application of controlling federal precedent.
Our review of the appellate briefs, the record, and the applicable law, lead
us to conclude that, for substantially the reasons stated in the district court’s
April 3, 2003 order, Capshaw has not established his entitlement to habeas relief.
See 28 U.S.C. § 2254(d)(1) & (2). The judgment of the district court is
AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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