The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Derrick S. Sams' Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (d/e 4) (Petition). In 2002, Sams was convicted following a jury trial in the Circuit Court of Livingston County, Illinois, of burglary and criminal damage to property. At the time of the offense, Sams was on parole for a 1996 burglary conviction in the State of Tennessee. Sams was sentenced in the Livingston County case to a twelve-year extended term of imprisonment for the burglary conviction and 364 days imprisonment for the criminal damage conviction, with the sentences to run concurrently to each other and to any time he might be ordered to serve upon revocation of his parole in Tennessee. Sams asks the Court to set aside his conviction based on an alleged due process violation arising from the fact that he was shackled during trial and alleged ineffective assistance of trial counsel for failing to adequately preserve the record as it related to the visible nature of the shackling. For the reasons set forth below, the Petition is denied.
In November 2001, someone broke into a bar named Smith's Tap located in Flanagan, Illinois. Money was taken from various game machines within the bar and the machines and the bar's back door were damaged. At Sams' trial, Deputy Kenneth Palmer testified as follows. Palmer was on routine patrol at approximately 4:22 a.m. on November 11, 2001, at which time a gray Mercury parked near the back door of Smith's Tap caught his attention. All of the other cars in the area were covered with frost, but the Mercury was not. Palmer approached the car and noted that the keys were in the ignition. Palmer also saw the handle to the back door of Smith's Tap lying on the ground. Palmer noticed that the back door was open and twoby-fours that had secured an inner door were on the floor.
Palmer backed away from the door and drew his weapon and flashlight. Shortly thereafter, Palmer saw a man look out the back door. Palmer shined his flashlight on the subject and told him to put his hands up. Instead, the man closed the door. Palmer testified that he observed the man for a few seconds before the door was closed and that the man was illuminated by the flashlight and by a streetlight in the alley. Palmer identified Sams as the man he saw at Smith's Tap.
At approximately 8:00 a.m., Palmer saw Sams driving the gray Mercury. He and another deputy initiated a traffic stop and arrested Sams for driving with a suspended license. Palmer testified that, when Sams exited the Mercury, Palmer immediately recognized him as the man who had been at the back door of Smith's Tap.
Sams raised an alibi defense. Both Sams and his wife testified that Sams was at home sleeping at the time of the incident. Sams also called a woman who had been delivering newspapers near Smith's Tap in the early morning hours of November 11, 2001. The newspaper lady testified that she heard a voice and then saw a man running away from Smith's Tap. She testified that she thought the man that she saw had longer legs and longer hair than Sams. After deliberation, the jury convicted Sams on both counts.
On the day of trial, prior to bringing the prospective jurors into the courtroom, the Circuit Court Judge ordered Sams' legs to remain shackled during the trial and that the shackles be fastened to the floor. Answer (d/e 7), Attachment 1, p. 24-25.*fn1 In doing so, the Judge considered Sams' prior criminal record for flight risk or danger. The prosecutor represented that Sams' prior record consisted of "All burglaries." Id., p. 24. Defense counsel objected to the shackling, and the Judge made further inquiry. Sams represented that he had served time for burglary and had been released in August 2000. Id., p. 25. The Judge overruled the defense objection, noting that "[t]he jury is not going to be able to see his feet." Id.
During the trial, the newspaper lady testified immediately before Sams. Prior to the newspaper lady's testimony, the Court took a short recess. The following exchange then occurred outside the presence of the jury between the Court and defense counsel:
THE COURT: . . . [w]ould you unhook the defendant from the floor. Would it be correct, Mr. Ahlemeyer, that your next witness you will ask the defendant to stand and you plan on having the defendant then testify as well? Or do you know?
MR. AHLEMEYER: I probably will. So this will also serve to facilitate that.
Answer, Attachment 3, p. 35. The jury returned to the courtroom and the newspaper lady was called to testify. During her testimony, the record reflects that defense counsel had Sams stand between two tables in the courtroom so that the witness could see him. Id., p. 40. After the newspaper lady testified, Sams took the stand in the presence of the jury and testified.
On the day of sentencing, March 6, 2002, Sams filed a pro se motion for a new trial, asserting in part ineffective assistance of counsel. The Court denied the pro se motion in open court, finding that Sams was well-represented. Sams was then sentenced to a twelve-year extended term of imprisonment for the burglary conviction and 364 days imprisonment for the criminal damage conviction. On March 11, 2002, Sams filed a pro se motion to reconsider his sentence, raising, among other issues, the shackling. On April 17, 2002, the court held a hearing on Sams' motion, during which Sams argued that he was prejudiced when he "was told to get on the stand and jury members were looking at [his] shackles." Answer, Attachment 5, p. 21. The Court addressed the issue as follows: With respect to shackles, the record should reflect that the defendant was in custody at the time. He has a significant criminal record. He was dressed appropriately at jury trial. He was seated at counsel table with his lawyer. There was a shackle or presumably one ...