Appeal from the United States District Court for the Western District of Wisconsin. No. 04 C 248-John C. Shabaz, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, MANION, and EVANS, Circuit Judges.
During his trial for drug-related offenses, Bradley Whitman appeared before the jury in an orange prison jumpsuit. Whitman was ultimately found guilty and sentenced to nine years in prison. After exhausting his state remedies, State v. Whitman, 259 Wis. 2d 482 (WiS.Ct. App. 2002) (petition for review denied by State v. Whitman, 260 Wis. 2d 753 (Wis. 2003)), Whitman sought habeas corpus in federal district court. He alleged that he was denied due process because he was compelled to wear a prison-issued jumpsuit during his four-day jury trial. In addition, Whitman asserts that his trial counsel was deficient for failing to secure him other clothing to wear during the trial proceedings. The district court denied Whitman's habeas petition. We affirm the judgment of the district court, finding that any constitutional infirmity resulting from Whitman's appearance in his prison jump-suit amounts to harmless error.
The Wisconsin appellate court recited the following facts, which we presume to be true, 28 U.S.C. § 2254(e)(1), when it affirmed Whitman's conviction.
On February 27, 1998, Whitman was arrested for killing a woman who had been a guest at his house. During a lawful search of Whitman's home, police found and seized illegal drugs and drug paraphernalia. Whitman was subsequently charged with first-degree intentional homicide and various drug-related offenses. The homicide and drug charges were later severed, with the homicide trial held first. Whitman was found guilty of negligent homicide, a lesser included offense of first-degree intentional homicide, and sentenced to seven years in prison.
While Whitman was serving this sentence, the trial concerning the drug charges was scheduled. Whitman appeared before the court in his orange, prison-issued jumpsuit. The judge and Whitman's attorney engaged in a colloquy in which the judge asked the attorney how Whitman would be dressed at trial. The attorney stated that Whitman would be dressed in his prison garb, to which Whitman interjected: "I have no other clothes, your Honor." The court then stated:
All right. And I did-The record should reflect I did speak briefly to defense counsel yesterday afternoon. Defense counsel was here to meet with his client yesterday after Mr. Whitman had been transported from wherever he is incarcerated, and I did inquire whether or not he had street clothes, and counsel said he wasn't sure. I said, well, check on it, if you want him to appear in street clothes make those arrangements; and apparently that decision has been made that he will appear in that uniform.
Trial Tr. 8-9, Jan. 18, 2001. In response, Whitman's attorney stated, "[t]hat's correct, your Honor." Id. at 9. The trial began; Whitman was convicted on all charges and sentenced to a total of nine years in prison.
On September 26, 2001, Whitman filed a motion for a new trial, arguing that both the circuit court and trial counsel failed to properly safeguard Whitman's rights because, in part, he was compelled to wear the prison jumpsuit at trial. At the hearing, Whitman's attorney testified that he took no steps to see that Whitman had street clothing to wear at trial. Moreover, he could not recall ever discussing the subject with Whitman, and he had no strategic reason for Whitman to appear in a prison jumpsuit. However, the attorney was sure that Whitman never objected to wearing the jumpsuit; he believed that Whitman would have complained "loudly and repeatedly" if he did not want to appear in the jumpsuit at trial, and the attorney would have recalled these complaints. Stipulated testimony from Whitman, however, stated that Whitman did not want to appear in a prison jumpsuit at trial, and did in fact complain.
The court denied Whitman's motion. The court accepted the attorney's version of the facts, and determined that Whitman did not object to wearing the prison jump-suit. The court also concluded that Whitman's appearance in the jumpsuit did not result in any prejudice to his case. According to the court, Whitman's guilt on the drug charges was overwhelming. Therefore, his appearance in the prison jumpsuit was irrelevant. Whitman appealed.
The Wisconsin Court of Appeals, the last state court to consider the merits of the issue, rejected all of Whit-man's claims. The appeals court concluded that because Whitman did not timely object to appearing in a prison jumpsuit, he could not later assert that his rights were violated. Therefore, his due process claim failed. Whitman's ineffective assistance of counsel claim likewise perished. The appeals court agreed with the trial court that the abundant evidence of Whitman's guilt negated any prejudice that may have been caused by his appearance in prison clothing.
Whitman filed a petition for habeas relief in the district court for the Western District of Wisconsin, arguing that the Wisconsin Court of Appeals decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § ...