TANA v. DANTANNA'S

<>Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and the Fourteenth Amendment as applied by Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). In addition, Williams renewed his argument that if he had not objected properly, it was due to ineffective assistance of counsel and should not be held against him. The district court ruled that the Eighth Amendment claim was not properly presented to the state court because the objection was not properly made under state law. D. Ct. Op. at 15. The district court determined that Knight's testimony was not equivalent to a call for a death sentence, was not unconstitutional under Payne and Booth, and was not likely to have played a substantial role in the jury's decision-making. Id. at 16. The district court concluded that even if the testimony was improper, it was harmless. Id. at 17. On appeal, Williams restates the claims made in his habeas petition, and argues that the statement was improper because any juror would have known that Knight meant to call for a death sentence.

Our consideration of this issue is guided by Booth, 482 U.S. at 512, 107 S.Ct. 2529, as modified by Payne, 501 U.S. at 831, 111 S.Ct. 2597. In Booth, the Court considered the propriety of victim impact statements that spoke to the emotional trauma suffered by the victim's family, the personal characteristics of the victim, the nature of the crime and the appropriate sentence. 482 U.S. at 503-09, 107 S.Ct. 2529. The victims' son testified that his parents were "butchered like animals," and that he thought that no one "should be able to do something like that and get away with it." Id. at 512, 107 S.Ct. 2529. The victims' daughter testified that she did not "feel that the people who did this could be rehabilitated" and she did not "want them to do this again or put another family through this." Id. at 513, 107 S.Ct. 2529. Ruling broadly, the Court held that it was improper to admit a victim impact statement during the sentencing phase of a capital trial. Id. at 509, 107 S.Ct. 2529. The Court rejected the notion that distress to the victim's family or the victim's personal characteristics were appropriate sentencing considerations in a capital case. Id. at 507, 107 S.Ct. 2529. The Court also rejected the admission of opinions from the family of the victim about the character of the crimes. Id. at 508, 107 S.Ct. 2529. The Court reasoned that the presentation of this information could have "no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." Id.

In Payne, the Court considered victim impact testimony by the victim's mother, who testified that her grandson "misses his mother and baby sister." 501 U.S. at 826, 111 S.Ct. 2597. None of the testimony presented "related to the circumstances of [the defendant's] brutal crimes." Id. The Court overruled Booth to the extent that it excluded "evidence and argument relating to the victim and the impact of the victim's death on the victim's family." Id. at 830 n. 2, 111 S.Ct. 2597. The Court reasoned that statements about the impact of the crime were a legitimate way "of informing the sentencing authority about the specific harm caused by the crime in question." Id. at 825, 111 S.Ct. 2597. The Court, however, left intact the prohibition against statements about "the crime, the defendant, and the appropriate sentence"; such statements violated the Eighth Amendment and were inadmissible. Id. at 830 n. 2, 111 S.Ct. 2597; see Payne, 501 U.S. at 833, 111 S.Ct. 2597 (O'Connor, J., concurring) (stating that Payne did not reach the "issue of opinions of the victim's family, the defendant, and the appropriate sentence"). The Court also stated that if evidence was introduced that was "so unduly prejudicial" that it rendered "the trial fundamentally unfair," then the due process clause of the Fourteenth Amendment could provide relief. Id. at 825, 111 S.Ct. 2597.

Since Payne, we have been hesitant to grant relief on the grounds of an improper victim impact statement. See Nooner v. Norris, 402 F.3d 801, 808 (8th Cir. 2005) (denying relief when the evidence was similar to what was admitted in Payne: "a family member of the victim explaining to the jury the impact the murder has had on the victim's family"); United States v. Nelson, 347 F.3d 701, 714 (8th Cir. 2003) (denying relief when victim impact testimony was "not meaningfully different than that allowed in Payne"); Simmons v. Bowersox, 235 F.3d 1124, 1135 (8th Cir. 2001) (same); see also Bucklew v. Luebbers, 436 F.3d 1010, 1022 (8th Cir. 2006) (denying relief when victim's mother testified, but did not opine on appropriate sentence). We have denied relief when the witnesses included coworkers and other associates of the victims who testified about the impact that the crime had on their lives. Rodriguez, 581 F.3d at 797; United States v. Paul, 217 F.3d 989, 1002 (8th Cir. 2000) (same); see also United States v. Johnson, 495 F.3d 951, 977 (8th Cir. 2007) (denying relief when victim's brother read a poem written by one of the victim's childhood friends, and the poem "conveyed the devastation and loss felt" by the victim's brother and the poem's author). We denied relief in Gray v. Bowersox when the victim impact testimony included statements about the victim's politics, civic activities, and involvement in the community. 281 F.3d 749, 755 (8th Cir. 2002). We have not found the quantity of victim impact statements to be determinative to our analysis. United States v. Bolden, 545 F.3d 609, 626-27 (8th Cir. 2008), cert. denied, ___ U.S. ___, 130 S.Ct. 796, ___ L.Ed.2d ___ (2009) (sixteen witnesses); United States v. Allen, 247 F.3d 741, 779 (8th Cir. 2001) (eleven witnesses), judgment vacated on other grounds by Allen v. United States, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). For our court's most recent discussion of Payne, see Storey v. Roper, 603 F.3d 507 (8th Cir. 2010).

The question is whether Knight's statement was equivalent to an impermissible suggestion about an appropriate sentence. See id. at 830 n. 2, 111 S.Ct. 2597. The only issue to be determined during the penalty phase was whether Williams would receive a death sentence or life imprisonment without the chance of parole. The jury could have unanimously agreed to a death sentence or life imprisonment without parole. If the jury failed to act, meaning it could not unanimously agree on the appropriate sentence, then the judge would automatically impose life without parole. Thus, there were two possible outcomes of this phase, but only the death sentence required a unanimous vote of the jury.

Knight emphasized in her testimony that the jury could "do something," and that the jury was "in a position to" act. Knight's testimony did more than express despair and contrast her position to that of the jury's in an effort to emote hopelessness. She did not merely ask for justice to be served, instead she requested future action. Insofar as she suggested that the jury act affirmatively and impose a death sentence, Knight's testimony violated Payne's proscription against suggesting the appropriate sentence. Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597. The permissible purpose of victim impact statements is to inform the sentencer of "the specific harm caused by the defendant." Id. at 825, 111 S.Ct. 2597. The locus of this testimony is the "specific harm" that was done, as evidenced by testimony concerning "the victim and the impact of the murder on the victim's family." Id. at 826-27, 111 S.Ct. 2597. Statements concerning the crime, the defendant, or the appropriate sentence are improper for the reasons articulated in Booth. Id. at 830 n. 2, 111 S.Ct. 2597. Payne makes no provision for statements about the jury's ability to act, implying what sentence it should impose, or for any other pleading to the jury. Id. As the trial court stated, Knight's statements were "getting pretty close" to the edge of Payne, J.App. at 418, and they may have been impermissible.

The state seeks to analogize these comments to what was permitted in Payne, stating, "the testimony is no different in substance than the very comments approved of in Payne that told the jury that the surviving victim in that case was one day `going to want to know what type of justice was done' in response to the brutal murder of his mother and sister and that `[w]ith [its] verdict, [the jury would] provide the answer' to him." Appellee's Br. 18. These comments, however, were remarks made by the prosecutor, not a victim impact statement, and thus are inapposite. Payne, 501 U.S. at 815, 111 S.Ct. 2597.

Any violation of Payne would not necessarily entitle Williams to relief. Errors in admission of victim impact statements are trial errors that may be harmless when considered in context. Rodriguez, 581 F.3d at 797 (applying harmless error analysis to effect of victim impact statement). To grant relief on a claim of an improper victim impact statement, we must be convinced that the statements were so unduly prejudicial "as to render the trial fundamentally unfair." Bolden, 545 F.3d at 627 (quoting Payne, 501 U.S. at 831, 111 S.Ct. 2597).

We conclude that Knight's testimony did not render Williams' trial fundamentally unfair. Williams was convicted of a capital murder that occurred after he escaped from prison where he was imprisoned for another capital murder. During his escape attempt, he was involved in a car crash that killed another person. Thus, he willfully killed two people on two separate occasions and recklessly caused the death of a third person during his escape attempt. Multiple aggravating factors were found at sentencing, and the mitigating evidence was minimal. Williams cannot show that there was a reasonable probability that the testimony affected the sentence, and that absent the testimony, the sentence would have been different. Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007) (articulating the standard for fundamental unfairness). The admission of Knight's testimony was "not so unfairly prejudicial as to infect the sentencing proceeding and render it fundamentally unfair." Storey, 603 F.3d at 518, 521. The Arkansas Supreme Court's resolution of this issue was a reasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1).

Because it has been resolved on the merits, we need not consider whether Williams' objection to Knight's testimony was timely or whether counsel was ineffective for failing to object. 28 U.S.C. § 2254(b)(2); see McKinnon v. Lockhart, 921 F.2d 830, 833 n. 7 (1990) (per curiam) (stating that it may be more efficient to resolve habeas issues on the merits rather than on the grounds of procedural default); see also Gray, 281 F.3d at 756 n. 3 (ineffective assistance of counsel claim cannot succeed when "underlying objection would have been without merit").

Williams also argues that Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), and Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006), entitle him to relief on this claim. We have considered these arguments and find them without merit.

C.

Williams argues that one juror, LaRhonda Washington, was impermissibly biased in favor of the death penalty. During voir dire, the prosecutor sought to determine if Washington was impermissibly biased either on the question of guilt or the sentence.

Prosecutor: After you determine the aggravating circumstances outweigh the mitigators, then you decide whether to impose life without parole or the death penalty. Under those circumstances, Ms. Washington, could you impose the death penalty? If you were to find him —

Washington: Yes, I could.

Prosecutor: Could you also consider life without parole, Ms. Washington? Or would you — or would you — do you think that death is the only appropriate punishment at that time?

Washington: Yes, I do.

Prosecutor: You — okay. You do what?

Washington: Think death would be the —

Prosecutor: You think death is the only appropriate punishment at that time?

Washington: Yes.

Prosecutor: You could not consider the death — you could not consider life without parole?

Washington: (No response)

Prosecutor: There's no right or wrong answer, Ms. Washington. It's a tough question.

Washington: Yes, it is.

Prosecutor: I mean — and we're talking about it somewhat quickly and that makes it think [sic] like its maybe not as serious as it really is. It's very serious and so don't let me rush you into an answer.

Washington: Possibly weighing, I probably could. You know — go with life without parole maybe —

Prosecutor: Okay. But you lean toward the death penalty, I can tell?

Washington: Yes, sir.

J.App. at 313-14 (dialogue with potential juror Hutchins omitted). A colloquy followed on why Washington had indicated on the juror selection form that she had already developed an opinion that the defendant was guilty. Id. at 317-18. In response to Williams' attorney's questions, Washington stated that she could begin the trial with a presumption of innocence. Id. at 326. On the question of the appropriate sentence, Washington gave the following answers.

Williams' Attorney: What is your feeling about the death penalty, Ms. Washington?

Washington: I — like I said before, I felt that — I feel very strong about it and I feel that if you can do the crime you can pay the time. That's the way I feel about it. I mean, no, I — I mean, from the circumstance of what be the cause of the reason, yes, sir, I'm for it. I mean — yes, I'm for the death penalty.

. . . .

Williams' Attorney: What purpose do you think the death penalty serves?

Washington: Well, I feel that when any life has been taken for no apparent reason you know, I mean, no it's not no purpose to be served, but those people could have had the chance to live also back when someone else commit this crime toward them. So — I feel like if you can — you can take someone else's life and — like that then.

. . . .

Williams' Attorney: Are you saying that if you are convinced that a person committed murder, the death penalty would be the sentence that you would favor in those circumstances?

Washington: No. Maybe not every case — maybe the way of the outcome of it. Not for every case.

. . . .

Williams' Attorney: Would you be willing to consider life without parole or would you be favoring the death penalty if you felt like someone's life has been taken without any reason?

Washington: Maybe.

Williams' Attorney: I'm sorry?

Washington: Maybe I could, yes.

Id. at 326-29. On reexamination by the prosecutor, Washington stated that she could put aside her opinions as to the guilt of the defendant and make a decision solely on the evidence presented at trial. Id. at 339. Williams' attorney then stated that he would have struck Washington if he had any remaining peremptory strikes. Id. at 340. The court noted counsel's statement and then empaneled Washington. Id.

On direct appeal, the Arkansas Supreme Court stated, "To challenge a juror on appeal, appellant must show he exhausted his peremptory challenges and was forced to accept a juror who should have been excused for cause." Williams I, 67 S.W.3d at 560. Williams' counsel did not move to excuse Washington for cause. Accordingly, the court ruled that it would not consider this claim because it had not been preserved for appeal. Id. In his Rule 37 post-conviction proceedings, Williams alleged that his counsel was ineffective for failing to strike Washington for cause. The Arkansas Supreme Court rejected this claim, determining that Washington was not impermissibly biased and that Williams had demonstrated neither error nor prejudice. Williams II, 251 S.W.3d at 296. The district court found this claim to be without merit, stating that the state court's determination was reasonable and entitled to a presumption of correctness. D. Ct. Op. at 21.

Williams argues that his counsel was ineffective under Strickland for failing to strike Washington for cause. Williams argues that application of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), required exclusion of Washington from the jury because she was not impartial, and that the failure to remove her could not have been harmless under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

To prevail on a Strickland claim, a defendant must show that his counsel was deficient and that the deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. 2052. To establish deficient performance, the defendant must show that his counsel acted unreasonably under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. To establish prejudice, the defendant must show that his counsel's failings deprived him of a fair trial. Id. at 687, 104 S.Ct. 2052. Whether a juror is biased against the defendant is a question of fact, and we will defer to the state court's finding "if it is fairly supported by the record." Mack v. Caspari, 92 F.3d 637, 642 (8th Cir. 1996); Cannon v. Lockhart, 850 F.2d 437, 441 (8th Cir. 1988); see United States v. Tucker, 243 F.3d 499, 506 (8th Cir. 2001). A demonstration of actual bias requires an impermissible affirmative statement; an "equivocal" statement is insufficient. See Mack, 92 F.3d at 642. Specific to this claim, Williams must show that Washington was impermissibly biased against him, that his counsel was deficient in failing to strike her for cause, and that inclusion of her on the jury resulted in an unfair trial.

As recounted above, Washington, although initially hesitant, stated that she could weigh the facts in this case, that she could consider mitigating factors, and that the death penalty was not appropriate in every case. The Arkansas Supreme Court determined that Washington was not impermissibly biased, and this finding is entitled to a presumption of correctness. See Greene v. Georgia, 519 U.S. 145, 146, 117 S.Ct. 578, 136 L.Ed.2d 507 (1996) (per curiam); Mack, 92 F.3d at 641; Cannon, 850 F.2d at 440. The Arkansas Supreme Court's ruling that Washington was not impermissibly biased is fairly supported by the record and not clearly in error. Williams' Strickland claim cannot succeed because he cannot show that Washington was impermissibly biased, that his counsel's failure to object to Washington was deficient performance, or that empaneling Washington deprived him of a fair trial.

Williams contends that because Mills emphasizes that each juror is of particular importance when unanimity is required to impose a death sentence, 486 U.S. at 384, 108 S.Ct. 1860, the presence of Washington on the jury could not have been harmless. The Arkansas Supreme Court's decision, however, was not based upon review for harmless error, as Williams suggests. Appellant's Br. 30-31. Rather, the Arkansas Supreme Court denied relief because the factual basis for the lower court's decision was not clearly erroneous, and it affirmed the circuit court "on this point." Williams II, 251 S.W.3d at 296.

D.

Williams argues that his counsel was ineffective under Strickland for not objecting to the jury's failure to make certain findings concerning mitigating circumstances. The jury indicated on the mitigating evidence forms only that it had found evidence of "family dysfunction which extended from generation to generation." J.App. at 2032. The jury did not find evidence of any other mitigating circumstance even though evidence had been introduced on all of the other circumstances listed on the special verdict form. Id. at 2031-33. Williams contends that the jury did not weigh the mitigating circumstances against the aggravating factors. He argues that it ignored the evidence of mitigating circumstances in violation of the Eighth Amendment, as applied by Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), and Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

Williams incorrectly claims that the jury did not find any mitigating circumstance. The trial court initially thought the jury had not found any mitigating circumstances, but the jury foreperson clarified that one mitigating circumstance had been found: inter-generational family dysfunction. J.App. at 588-89.

On direct appeal, the Arkansas Supreme Court denied relief on this claim, stating that it was "the jury's decision as to what weight to give evidence." Williams I, 67 S.W.3d at 562. On appeal from the denial of Rule 37 relief, the Arkansas Supreme Court affirmed, stating, "[t]he mere fact that evidence is presented by trial counsel that an issue constitutes a mitigator does not mean that the jury is required to conclude that it is." Williams II, 251 S.W.3d at 298. The district court also rejected this claim, ruling that the Arkansas Supreme Court's decisions were consistent and reasonable applications of existing federal law and that if there was error, it was harmless. D. Ct. Op. at 24. The district court ruled that Williams' Strickland claim failed because he could show neither deficient performance nor prejudice. Id. To prevail on his Strickland claim here, Williams must show that the jury's actions were in error, that counsel's failure to object was deficient, and that it resulted in an unfair trial. 466 U.S. at 687, 104 S.Ct. 2052.

Penry and Mills involved juries that were precluded from properly considering mitigating circumstances because of misleading jury instruction forms. Penry, 532 U.S. at 797-99, 121 S.Ct. 1910; Mills, 486 U.S. at 377-79, 108 S.Ct. 1860. Neither case stands for the principle that Williams articulates — namely, that jury error in completion of properly worded special verdict forms is a per se violation of the Eighth Amendment. There is no evidence that the jury was precluded from considering mitigating circumstances or that it was mistaken about its ability to do so. The Arkansas Supreme Court's decision was thus in accord with clearly established law and reasonable.

Even if there was error in filling out the form, the error was harmless in light of the countervailing aggravating factors described above. See Baze v. Parker, 371 F.3d 310, 327-28 (6th Cir. 2004) (applying harmless error analysis to issue concerning incorrect jury form). The jury found four aggravating circumstances and only one mitigating circumstance. It is not likely that Williams' sentence would have been any different had the jury filled out the verdict forms differently. Williams cannot succeed on this Strickland claim because he cannot show that the jury's actions were in error or that his counsel's performance was deficient or prejudicial.

E.

Williams argues that his counsel was ineffective under Strickland because he failed to introduce documentation supporting his mitigation claims. Although counsel put an expert, Dr. Cunningham, on the stand to testify about Williams' difficult childhood and mental challenges, counsel did not introduce documents into evidence supporting these claims. Williams alleges that introduction of these documents could have made the claims more plausible to the jury and increased the chance that the jury would find mitigating circumstances. He invokes Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), in support of this claim. To prevail on this Strickland claim, Williams must show that his counsel was deficient in not providing documentation for the mitigation claims and that this omission resulted in an unfair trial. 466 U.S. at 687, 104 S.Ct. 2052.

Wiggins and Skipper dealt with the exclusion of and the failure to introduce certain kinds of evidence and whether prejudice results therefrom; they do not speak to whether documentary evidence should have been provided to the jury. As the district court determined, there is no case law or statutory basis for Williams' claim, and thus it must be rejected. In any event, any error in failing to provide documentation would have been harmless. Williams' counsel conducted a thorough investigation of Williams' childhood, introduced extensive testimony by Dr. Cunningham, and supplemented this testimony with a video and slide presentation. Counsel strategically decided not to ask the jury to sift through all of the supporting documentation. There is no reason to believe that the jury's sentence would have been any different had all of the documents been introduced. The state court correctly applied existing law at sentencing, and the Arkansas Supreme Court did not err in denying relief, as its decision was consistent with clearly established federal law. See 28 U.S.C. § 2254(d)(1). Williams can show neither deficient performance nor prejudice, and thus his Strickland claim is without merit.

F.

Williams argues that the trial court violated his right to due process by forcing him to wear prison attire, shackles, and a stun belt during trial. In addition, Williams argues that he was prejudiced by the presence of uniformed guards standing and sitting near him. Williams objected to this at trial, and was overruled by the trial court. Williams argued this claim on direct appeal, and the Arkansas Supreme Court rejected it. Williams I, 67 S.W.3d. at 558-60. In his post-conviction proceedings, Williams again raised this claim, with the additional argument that he had been denied relief under an erroneous legal standard. Williams II, 251 S.W.3d at 299-300. Insofar as the issue of the proper standard had not been raised below, Williams pled ineffective assistance of counsel. Id. The Arkansas Supreme Court again denied his claim for relief. Id. Williams pled this claim in his habeas petition, and the district court likewise denied relief. D. Ct. Op. at 27.

During pre-trial proceedings, the court heard testimony about Williams' behavior during his prior trial for capital murder and attempted murder. Lieutenant Charles Inman, who had worked for the Jefferson County Sheriff's office and had provided courtroom security during Williams' prior trial, testified that Williams had taunted the victims' families during the trial in a deliberate effort to provoke them. J.App. at 284, 286-87. When the sentence was pronounced and Williams was led out of the courtroom, he laughed at the victims' families, and said something along the lines of, "[y]ou didn't kill me this time." Id. at 284, 251 S.W.3d 290. The victims' families reacted strongly, and a row ensued in the courtroom, during which courtroom security officers had to physically restrain Williams. Id. Williams was then transported from the courthouse to the Diagnostic Unit of the Department of Correction; during this trip Williams tried to break out of the window of the police car while it was traveling at sixty-five miles per hour. Id. at 285, 251 S.W.3d 290.

In reaching its decision on Williams' objection, the trial court discussed at length the issues involved. Id. at 301-05, 251 S.W.3d 290. The court determined that prison attire would have no prejudicial effect because Williams was going to be tried for a murder that occurred in the course of an escape from prison; the jury would by necessity be aware of his incarceration. Id. at 302. The court discussed the security issues involved, the risks that Williams presented, and his right to a fair trial. Id. at 303-04, 251 S.W.3d 290. Given Williams' prior behavior, the court felt that additional restraints were justified. The court sought to minimize the visibility of the restraints to the jury and to maximize Williams' ability to communicate with his lawyers. Id. at 304, 251 S.W.3d 290. Accordingly, the court ordered that Williams be seated in the courtroom before the jury entered to ensure that the jury would not see Williams "shuffle in and out" because of his leg restraints and that the stun belt be placed under his clothing and thus not visible to the jury. Id. Moreover, the court denied the imposition of mittens designed to prevent Williams from compromising the locks on his restraints because they would have interfered with Williams' ability to write notes to his lawyers. Id.

Williams' objection to his prison attire is without merit given that he was tried for a murder committed during a prison escape. Generally, prison attire is inherently prejudicial, because it puts the jury on notice that the defendant has already been deprived of his liberty. United States v. Stewart, 20 F.3d 911, 916 (8th Cir. 1994) (citing Estelle v. Williams, 425 U.S. 501, 503-07, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)). Prejudice, however, occurs only when prison attire puts the jury on notice of something that it does not already know. Id. Williams was accused of murdering Boren while escaping from prison; neither his current incarceration nor his escape was at issue; there was no way that the jury could avoid the fact that he was deprived of his liberty at the time of trial and at the time of the alleged offense. Thus, Williams suffered no prejudice by being clad in prison attire during his trial. The Arkansas Supreme Court's consideration of this issue was in accord with federal law and reasonable.

There is no question whether the trial court was justified in allowing restraints and the posting of guards during Williams' trial. Consequently, rather than contesting the justification directly, Williams argues that the Arkansas Supreme Court considered this issue on direct appeal under the wrong legal standard, erroneously placing the burden on Williams to prove prejudice. Williams argues that the Court's decision in Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), required the state to prove beyond a reasonable doubt that shackling was necessary and that the state did not do so in violation of his constitutional rights. In denying this claim, the district court determined that Deck did not apply and that the decision of the Arkansas Supreme Court was in accord with clearly established precedent. D. Ct. Op. at 27. Like the district court, we reject this claim on multiple grounds.

First, Williams cannot claim any relief from Deck, because Deck post-dated his trial and the principles articulated therein were not clearly established at that time. 28 U.S.C. § 2254(d)(1). Second, even if Deck applied to this case, it would not provide an avenue for relief. In Deck, the Court considered "whether shackling a convicted offender during the penalty phase of a capital case" violates the Constitution. 544 U.S. at 624, 125 S.Ct. 2007. The Court noted that routine shackling during the guilt phase of a trial has long been forbidden because it undermines the presumption of innocence, interferes with the defendant's ability to communicate with his lawyer, and affronts the dignity and decorum of judicial proceedings. Id. 630-32, 125 S.Ct. 2007. Nevertheless, the Court recognized that there will be special cases in which these "perils" are unavoidable, noting, "[w]e do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations." Id. at 632, 125 S.Ct. 2007. The concerns about shackling during the guilt phase apply "with like force" to the penalty phase of a capital case. Id. Accordingly, courts may not routinely place defendants in shackles visible to the jury during the penalty phase of a capital case. Id. at 633, 125 S.Ct. 2007. This prohibition, however, "is not absolute," and a judge can exercise his discretion when "special circumstances, including security concerns" call for shackling during the penalty phase of a capital case. Id.; United States v. Mahasin, 442 F.3d 687, 691 (8th Cir. 2006). When a court makes such a determination, the determination must reflect "particular concerns" related to the "special security needs or escape risks" of the defendant on trial. Deck, 544 U.S. at 633, 125 S.Ct. 2007; Mahasin, 442 F.3d at 691.

The trial court engaged in a careful analysis in determining the appropriate security protocol in light of Williams' past behavior. The court's decision was based upon the special circumstances and security concerns present in the case, and the restraints that were utilized reflected the particular risks that Williams presented, which were substantial. As the Arkansas Supreme Court noted, "[i]t would be difficult to imagine a criminal defendant that would better fit the definition of a high-risk defendant." Williams I, 67 S.W.3d at 560. The trial court engaged in precisely the type of particularized inquiry that Deck requires, and this was not a case of shackling ordered "without adequate justification." 544 U.S. at 635, 125 S.Ct. 2007. Thus, the relief that Deck provides, namely, that "the defendant need not demonstrate actual prejudice to make out a due process violation," does not apply in this case. Id. The Arkansas Supreme Court, therefore, resolved this issue correctly on Williams' direct appeal, finding that Williams could not meet his burden to prove prejudice. Williams I, 67 S.W.3d at 560. As the Arkansas Supreme Court stated in Williams II, "[t]he standard announced in Deck, which places the burden of proving a lack of prejudice to the defendant on the State, only pertains where there is no adequate justification for a defendant wearing shackles during his trial." 251 S.W.3d at 300. Deck, therefore, does not provide any relief. The Arkansas Supreme Court's consideration of this issue was in accord with clearly established federal law and provides no grounds for relief. See 28 U.S.C. § 2254(d).

Williams, for the first time, claims on this appeal that even if shackling was proper during the guilt phase of the trial, it was not proper under Deck during the penalty phase, given that he "behaved impeccably" during the guilt phase. Appellant's Br. 43-44. This claim was not presented to the trial court, and thus is defaulted. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006). Moreover, Deck was not clearly established at the time of trial, and thus does not provide a basis for relief. 28 U.S.C. § 2254(d). But even considered on the merits, the claim fails because Deck, as discussed above, does not apply when a court with "adequate justification" acts within its discretion and orders the defendant restrained. 544 U.S. at 635, 125 S.Ct. 2007.

G.

Williams argues that he was entitled to funds to investigate juror bias and misconduct. Although he has no evidence to suggest this, he suspects that some jurors may have had unrevealed connections to the prison at which the victim, Boren, worked, and that they misled the court during voir dire. Williams argues that the Arkansas Supreme Court misapplied Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) ( Taylor), when dismissing this claim. Williams II, 251 S.W.3d at 300-03. The district court noted that Williams had no authority for this claim and ruled that it was without merit. D. Ct. Op. at 28-29.

Taylor, in contrast to this case, concerned a petitioner who had evidence that the jury foreperson had misled the court about her ties to the prosecution's "lead-off witness" and one of the prosecutors. Id. at 440-41, 120 S.Ct. 1479. In light of the evidence, the Court ruled that 28 U.S.C. § 2254(e)(2) did not prevent the petitioner from developing his claim of juror misconduct in federal court. Id. at 443, 120 S.Ct. 1479. The Court's ruling in Taylor, however, does not provide Williams with relief, for the Court specifically precluded this type of claim when it wrote, "[w]e do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims." 529 U.S. at 443, 120 S.Ct. 1479. Thus, Williams had no right to funding for an investigation to develop entirely speculative claims. Id.

III.

The judgment is affirmed.

dditional relevant factor in its likelihood-of-confusion analysis. Plaintiff cannot prevail on either argument.

We also summarily dismiss Plaintiff's argument that the district court misapplied Rule 56(c)'s summary judgment standard by improperly weighing the evidence, as evidenced by the court's statements that certain likelihood-of-confusion factors "weighed" in favor of Plaintiff or "weighed" in favor of Defendants. See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010) (In reviewing motions for summary judgment, "[n]either we nor the district court are to undertake credibility determinations or weigh the evidence."). Although likelihood of confusion is a question of fact, it may be decided as a matter of law. Welding Servs., 509 F.3d at 1361; Alliance Metals, Inc. v. Hinely Indus., Inc., 222 F.3d 895, 907 (11th Cir. 2000). And our circuit has routinely "weighed" the likelihood-of-confusion factors on summary judgment. See, e.g., Welding Servs., 509 F.3d at 1361 (explaining that "[o]verwhelming visual dissimilarity can defeat an infringement claim, even where the other six factors all weigh in favor of the plaintiff" and concluding that "[t]he next three factors weigh in favor of Welding Services" (emphasis added)); Dippin' Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197, 1208 n. 12 (11th Cir. 2004) (holding that no reasonable jury could find that the two logos are confusingly similar because although "the second factor weighs in favor of FBD," "the remaining six factors all weigh in favor of DDI," and "the lack of visual similarity between the two designs is overwhelming" (emphasis added)).
Plaintiff points to no instance in which the district court improperly weighed conflicting evidence in assessing the likelihood of confusion between the parties' marks. Rather, it appears that Plaintiff is arguing that if any one factor suggests that there could be a likelihood of confusion, summary judgment is improper. This is not the law. The likelihood-of-confusion multifactor test presupposes that various factors will point in opposing directions. The role of the court in reviewing a motion for summary judgment is to determine the ultimate question of whether, in light of the evidence as a whole, there is sufficient proof of a likelihood of confusion to warrant a trial of the issue. See Welding Servs., 509 F.3d at 1361.

We agree with the district court that the only factors that could plausibly support a finding of a likelihood of confusion are the similarity of the marks (factor two) and the undisputed similarity of the parties' sales methods (factor four). Plaintiff's and Defendants' marks share an identical spelling but for a single letter and the use of a space, an identical use of the possessive, and an identical pronunciation, and both parties sell food prepared and served in retail restaurant establishments. However, both of these factors merely suggest a threshold potential for confusion and are thus entitled to little weight. An analysis of the remaining factors demonstrates no real likelihood of confusion in the consuming public.

Despite Defendants' concession of the similarity of the parties' marks before the district court, they now contest this factor on appeal, arguing that "there are differences in spelling, syllabus, and pronunciation." This position is inconsistent with that taken by Defendants below, and we decline to entertain it. In any event, any such differences are negligible.

With respect to the strength of Plaintiff's mark (factor one), we conclude that "Dan Tana's" is a relatively weak mark for restaurant services outside of the Los Angeles area. The weaker the mark, the less likelihood of confusion. Welding Servs., 509 F.3d at 1361. As discussed above, determining the strength of a mark requires a consideration of the mark's inherent distinctiveness. If the mark is merely descriptive, such as a personal or surname, its strength depends on whether it has acquired secondary meaning. See Perini Corp., 915 F.2d at 125; 815 Tonawanda St. Corp., 842 F.2d at 648; Conagra, 743 F.2d at 1513. A descriptive mark with secondary meaning is a relatively strong mark. Dieter v. B H Indus. of Sw. Fla., Inc., 880 F.2d 322, 329 (11th Cir. 1989).

As a preliminary matter, we do not find persuasive Plaintiff's argument that because his mark is derived from his full name, as opposed to his personal or surname, it is an inherently distinctive and, therefore, strong mark. The policy reasons for requiring secondary meaning for the use of a personal or surname as a mark extend equally to the use of full names. See Peaceable Planet, Inc. v. Ty, Inc., 362 F.3d 986, 989-90 (7th Cir. 2004) (identifying the particular reasons for considering names merely descriptive marks: (1) "a reluctance to forbid a person to use his own name in his own business"; (2) a recognition that "some names are so common . . . that consumers will not assume that two products having the same name therefore have the same source"; and (3) the concern that "preventing a person from using his name to denote his business may deprive consumers of useful information"). Although some full names are indeed unique, the majority are shared by numerous individuals across diverse communities and markets. We decline to create a blanket rule distinguishing full names from personal and surnames with respect to the secondary-meaning requirement.

Thus, "Dan Tana's" is merely a descriptive mark, the strength of which is dependent upon the showing of secondary meaning. We consider four factors in assessing secondary meaning: (1) "the length and nature of the name's use," (2) "the nature and extent of advertising and promotion of the name," (3) "the efforts of the proprietor to promote a conscious connection between the name and the business," and (4) "the degree of actual recognition by the public that the name designates the proprietor's product or service." Welding Servs., 509 F.3d at 1358. In light of Plaintiff's continuous use of his mark in the same West Hollywood neighborhood for over four decades, as well as the record evidence of the significant press coverage he receives in Los Angeles publications, it is likely that Dan Tana's has obtained secondary meaning in Los Angeles. However, Dan Tana alleges a likelihood of confusion between his restaurant and an establishment thousands of miles away. Therefore, the relevant inquiry is whether Plaintiff's mark is strong enough outside of Los Angeles to give rise to a likelihood of confusion among consumers of Dantanna's restaurant services in Atlanta. See Brennan's, Inc. v. Brennan's Rest., L.L.C., 360 F.3d 125, 132 (2d Cir. 2004) ("[T]o achieve the status of a strong mark, plaintiff must demonstrate distinctiveness in the relevant market. . . . In this case, the relevant market is the pool of actual and potential customers of Terrance Brennan's, for it is those patrons whose potential confusion is at issue."). The record fails to establish such widespread secondary meaning.

Plaintiff does not advertise nationally or in the Atlanta area specifically, though he has enjoyed free advertising from articles in national publications such as the New York Times, Forbes Traveler, and USA Today. Although these articles suggest some notoriety among food critics and travel writers of nationwide publications, they do not constitute record evidence of any effort by Plaintiff to "create a conscious connection" in the nationwide public's mind between the name Dan Tana's and his restaurant. See Welding Servs., 509 F.3d at 1358; see also Brennan's, 360 F.3d at 132 (Articles and reviews discussing Brennan's New Orleans in the context of the City of New Orleans or a trip to New Orleans "in no way demonstrate that potential diners in New York City who find the word Brennan's on a restaurant awning will have any reason to think the restaurant is connected with Brennan's New Orleans, or even will have heard of Brennan's New Orleans."). Even the use of the name "Dan Tanna" in the television series "Vega$," which aired for a few years in the late 1970s and early 1980s, suggests nothing more than that the name "Dan Tana's" may have a familiar ring to a discrete group of television enthusiasts who viewed the program twenty to thirty years ago, not that present-day patrons of Dantanna's Atlanta would specifically associate the name with Plaintiff's restaurant.

Moreover, the two affidavits submitted by Plaintiff as evidence of the national notoriety of his restaurant — one authored by Plaintiff himself and the other authored by his attorney — make only generalized self-serving statements as to Plaintiff's reputation and add no material evidence to the record that is relevant to the secondary-meaning inquiry. Cf. Conagra, 743 F.2d at 1513-14 (holding plaintiff had established secondary meaning in its mark because it had "prominently displayed the Singleton name on virtually all of its seafood products for over 25 years," distributed promotional films widely, expended over $400,000 annually in worldwide markets on its promotion, and included market surveys in the record strongly identifying the company name with its products). In sum, Plaintiff has failed to establish widespread secondary meaning of the name "Dan Tana's" sufficient to demonstrate that he holds a strong mark in restaurant services so as to cause a likelihood of confusion among consumers in Atlanta. In light of the weakness of Plaintiff's mark in the context of this infringement suit (factor one), the conceded similarity between the two marks (factor two) adds little weight to Plaintiff's effort to show likelihood of confusion.

We also dismiss Plaintiff's attempt to circumvent the relevance of secondary meaning by arguing that his complaint alleges both trademark infringement and false endorsement, and that no secondary meaning is required to establish trademark rights in false endorsement cases. In support of this argument, Plaintiff relies on a Ninth Circuit case, Downing v. Abercrombie Fitch, 265 F.3d 994 (9th Cir. 2001), which sets forth a distinct set of factors for evaluating "celebrity cases" of false endorsement in that circuit. Not only has our circuit never endorsed the Ninth Circuit's Downing factors, but we have also never recognized a separate claim of false endorsement, distinct from trademark infringement under § 43(a) and exempt from our secondary-meaning inquiry. Moreover, a reading of Downing reveals that secondary meaning is indeed relevant to the Ninth Circuit's likelihood-of-confusion inquiry in celebrity cases. See id. at 1007 (listing as the first likelihood-of-confusion factor "the level of recognition that the plaintiff has among the segment of the society for whom the defendant's product is intended"). In any event, in light of Plaintiff's complaint, which alleges only one Lanham Act count — a classic claim of false designation of origin under § 43(a) — this argument has no basis in the pleadings.

A comparison of the goods and services offered under the parties' marks (factor three) reveals overwhelming evidence that consumers would be unlikely to confuse the two restaurants. The goods and services provided in the parties' restaurants are strikingly dissimilar, and the record belies Plaintiff's assertion that Dantanna's in Atlanta provides "nearly identical" cuisine and ambiance to his Hollywood restaurant. In fact, the only apparent commonality between the two restaurants is that they are both fine-dining establishments serving meat and fish. Dan Tana's is an old-world-style Italian restaurant where mustached waiters dressed in tuxedos serve classic Italian dishes off a menu embellished with Italian language. The ambiance is cozy, intimate, romantic, low-lit, and the restaurant caters to Hollywood's elite and to celebrities seeking a safe haven from paparazzi. In stark contrast, Dantanna's in Atlanta is an upscale sports restaurant, targeting sports enthusiasts and serving contemporary American cuisine in a modern setting decorated with flat-screen televisions. Cf. Coach House Rest., 934 F.2d at 1562 (finding that "the registrant's restaurant was modeled to emulate the same ambiance and provide the same cuisine" as plaintiff's restaurant, which contributed to the court's finding of a material issue of fact on the likelihood of confusion between the two marks).

The stark differences between the parties' restaurants, described in the preceding paragraph, also demonstrate that their customers are dissimilar, which is an aspect of the similarity of the parties' actual sales methods (factor four). The district court accepted Defendants' concession that the two parties have identical sales outlets (the other consideration in evaluating the similarity of sales methods), in that they both serve food in retail restaurant establishments, but did not compare the restaurants' customer base. Thus, viewing factor four in its entirety, it adds little weight to the possibility of a likelihood of confusion.

Additionally, Plaintiff and Defendants do not engage in similar methods of advertising (factor five). Plaintiff admittedly relies solely on free publicity to advertise his restaurant, aside from maintaining a website. Defendants, by contrast, both maintain a website and purchase advertising at sporting events and in various local and national publications. Thus, the only similarity in the advertising channels used by the two parties is their maintenance of websites on the World Wide Web. This similarity would dispel rather than cause confusion, however, because the websites are separate and distinct, suggesting two completely unrelated business entities.

There is also scant evidence of any intention of Defendants to misappropriate Plaintiff's mark (factor six). Plaintiff asserts, in a rather conclusory fashion, that Defendants knew of the Dan Tana's restaurant prior to adopting the name "Dantanna's" for their own because Clapp previously lived in Los Angeles and worked in the restaurant business there. Although this fact gives rise to an inference that Clapp could have encountered the Dan Tana's restaurant during his time in California, it does not contradict Defendants' evidence of an independent and innocent origin of the Dantanna's mark: that the name "Dantanna's" was derived from the names of Clapp's two children, Daniel and Anna by shortening Daniel to "Dan" and connecting the two names with a "+" sign, which was eventually converted into a "t." Moreover, Clapp testified in his deposition that he did not learn of Plaintiff's restaurant until sometime in 2003, after he had already selected the name of his restaurant and begun the trademark registration process. Aside from Plaintiff's bald assertion that Clapp fabricated this story, the affidavit and his testimony remain uncontroverted by any material evidence. In fact, Plaintiff testified in his deposition before the PTO that he had no reason to believe that Clapp's story was not true. Where a story of the creation of a mark is undisputed and shows an innocent origin, we have concluded that there is no intent of misappropriation contributing to a likelihood of confusion. See Welding Servs., 509 F.3d at 1361.

Additionally, and perhaps most significantly, Plaintiff is unable to identify any credible motive for Defendants to trade on the name of his restaurant in Atlanta. There is no evidence of any secondary meaning associated with Plaintiff's mark in the Atlanta area; there is no competition between the two restaurants; and the restaurants fulfill entirely different niches in the food services market. Finally, a factfinder is less likely to find intentional infringement where a defendant uses his own name in creating his mark. See Conagra, 743 F.2d at 1515 n. 9. Although the record indicates that Clapp used his children's as opposed to his own name for his restaurant, the source of the name is personal and familial and further support for our conclusion that no reasonable jury could find intentional infringement on these facts.

The last factor, actual confusion in the consuming public, is the most persuasive evidence in assessing likelihood of confusion. Alliance Metals, Inc. v. Hinely Indus., Inc., 222 F.3d 895, 907 (11th Cir. 2000). Again, Plaintiff's evidence is nominal. In fact, the only evidence adduced by Plaintiff as to actual confusion was an affidavit by Kenneth McGuire, a Los Angeles resident and patron of Dan Tana's Hollywood, who claimed that he chose to patronize Dantanna's on a visit to Atlanta because of the similarity of the two restaurants' names, which led him to believe they had an affiliation. McGuire attested that upon entry he was struck by "the signage and the decor in the Atlanta's Dantanna's," which "was so close to the decor as the Dan Tana's in Hollywood" that it strengthened his belief of the restaurants' association. The district court concluded that the McGuire affidavit was simply not credible in light of the record evidence of the striking dissimilarities between the restaurants' interiors, menus, and ambiance and was therefore entitled to little weight. See 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2727 (3d ed. 2008) (Under Federal Rule of Civil Procedure 56, "the court may disregard an offer of evidence that is too incredible to be believed."). Even if we declined to completely disregard the affidavit, this evidence of actual confusion is so minimal as to be practically insignificant.

The only other evidence of actual confusion is Defendants' admission that there have been two incidents in which customers have inquired as to the restaurants' possible affiliation with Dan Tana's Hollywood since Dantanna's opened in 2003. This evidence of actual confusion is also weak; in considering actual confusion we look not only to the existence but also to the extent of such confusion. Welding Servs., 509 F.3d at 1360. Dantanna's has served over one million customers in the five years between its opening and the filing of this lawsuit; no reasonable jury would conclude that an inquiry by only two customers of a possible connection between the restaurants demonstrates actual confusion in the consuming public. Our cases finding relevant actual confusion have concerned much more significant evidence. Cf. Alliance Metals, 222 F.3d at 908 (finding "ample undisputed evidence" of actual confusion where plaintiff attached copies of more than a dozen checks plaintiff received from customers for goods bought from defendants and seven invoices from vendors billing plaintiff under a confusing combination of plaintiff's and defendant's names); Conagra, 743 F.2d at 1515 (finding relevant actual confusion where the evidence demonstrated "numerous" instances where people assumed an affiliation between the parties' businesses, including inquiries by distributors to plaintiff about services provided by defendant).

ii. The Relevance of Geographic Proximity of Use

We also reject Plaintiff's argument that the district court erred as a matter of law in considering the geographic proximity of the use of the parties' marks. Our circuit has recognized that "new factors may merit consideration" in determining whether there is a likelihood of confusion. Swatch Watch, S.A. v. Taxor, Inc., 785 F.2d 956, 958 (11th Cir. 1986). And our case law already establishes that geographic considerations may be relevant to the likelihood-of-confusion analysis, even where we have not articulated this consideration as a separate factor. See, e.g., St. Luke's Cataract Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1209 (11th Cir. 2009) (considering the fact that the two companies worked in "the same geographical market" in holding that there was a clear likelihood of confusion of the parties' service marks to sustain the jury verdict); Alliance Metals, 222 F.3d at 908 (considering the undisputed evidence that both companies distributed prefinished aluminum sheets and sign blanks in the "same territory" in concluding that there was a likelihood of confusion).

We have already discussed the relevance of geography in our evaluation of the strength of Plaintiff's mark under the first factor of our existing seven-factor likelihood-of-confusion test. Where the secondary meaning acquired by a descriptive mark dictates its strength and distinctiveness, as here, the geographic remoteness of a mark's use may be relevant to the likelihood-of-confusion inquiry. Because Plaintiff seeks to establish a likelihood of confusion with a restaurant in Atlanta, the geographically remote use of his mark in West Hollywood weighs against a finding of nationwide secondary meaning, leaving him with only a weak mark unlikely to cause a likelihood of confusion in Atlanta.

Geographic considerations are also particularly relevant where a plaintiff holds only common-law trademark rights in a mark because it is well-established that the scope of protection accorded his mark is coextensive only with the territory throughout which it is known and from which it has drawn its trade. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 416, 36 S.Ct. 357, 361, 60 L.Ed. 713 (1916), superseded by statute in irrelevant part as stated in Park `N Fly, Inc. v. Dollar Park Fly, Inc., 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). The owner of a registered mark, in contrast, enjoys the unlimited right to use the mark nationwide, and federal registration affords the registrant priority over all future users of confusingly similar marks. 15 U.S.C. § 1057(c); Coach House Rest., 934 F.2d at 1564. Therefore, a Lanham Act plaintiff asserting common-law trademark rights under § 43(a) against the owner of a registered mark, as here, bears the burden of establishing the right to use its mark by actual use in a given territory. Emergency One, Inc. v. Am. Fire Eagle Engine Co., 332 F.3d 264, 269 (4th Cir. 2003). And because registration constitutes constructive nationwide notice of the registrant's priority of use of a mark, 15 U.S.C. § 1072, only actual use occurring prior to such registration gives rise to enforceable common-law trademark rights, 15 U.S.C. § 1065. Thus, federal registration has the practical effect of freezing a prior user's enforceable trademark rights thereby terminating any right to future expansion beyond the user's existing territory. Allard Enters., Inc. v. Advanced Programming Res., Inc., 249 F.3d 564, 572 (6th Cir. 2001) ("In the case in which a junior user applies for registration, . . . the extent of the senior user/nonregistrant's territory is frozen as of the date of actual registration to the junior user.").

See also Peaches Ent. Corp. v. Ent. Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995); Thrifty Rent-A-Car Sys., Inc. v. Thrift Cars, Inc., 831 F.2d 1177, 1181 (1st Cir. 1987) (applying the same principle to the related context in which the senior user obtains registration and yet the junior user established market penetration in a discrete area prior to such registration). For this reason, it is irrelevant to our likelihood-of-confusion analysis that Plaintiff testified in this lawsuit (and after Defendants' registration) about an intent to expand his restaurant into other markets in other parts of the country. Moreover, even if Defendants did not enjoy the benefit of a federal registration, the record contains no evidence demonstrating that Atlanta, Georgia, would be considered within Plaintiff's "zone of natural expansion." See Tally-Ho, Inc. v. Coast Cmty. Coll. Dist., 889 F.2d 1018, 1027-28 (11th Cir. 1989) (explaining the common-law expansion doctrine, which provides a senior user with "some limited `breathing space' in which to expand beyond its current actual use" based on the nature of the senior user's use at the time of the junior user's first use). A senior user that has constantly expanded its business prior to the junior user's adoption of the mark may be entitled to exclusive rights in a zone of natural expansion, even if that zone ousts a junior user from its current territory. Id. (citing J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 26:8 (2d ed. 1984)). However, where a "senior user is static, and has restricted use to only one small area, such as one city, a good-faith junior user may expand into a nationwide use of the mark, subject only to an exception in the small area occupied by the senior user." Id. at 1028 (citing McCarthy, supra, at § 26:8).

Accordingly, because Plaintiff continued to operate only a single location of Dan Tana's at the time Defendants registered their mark, his trademark rights in the "Dan Tana's" name are limited to the Los Angeles market. Furthermore, the record also establishes that Defendants currently operate restaurants only in the Atlanta area and that the mark of neither party is known by the customers in the other's market. Thus, at present, the parties' restaurants coexist in remote markets, geographically and otherwise. On such a record, geographic considerations are indeed relevant and demonstrate a smaller likelihood of confusion. See Coach House Rest., 934 F.2d at 1564-65 (explaining that in an action for trademark infringement, as opposed to a cancellation proceeding, brought by a prior user of an unregistered mark, there is no presumption that the mark is being used nationwide, and therefore where the two parties "operate in discrete, remote areas, there is a smaller likelihood that there will be confusion"); Brennan's, 360 F.3d at 134 ("In the restaurant industry, especially where individual restaurants rather than chains are competing, physical separation seems particularly significant to the inquiry into consumer confusion."). We therefore hold that the geographic remoteness of the parties' restaurants is particularly relevant to our likelihood-of-confusion analysis where a plaintiff bases a trademark infringement claim on common-law trademark rights. The district court did not err in considering the geographic proximity of use as an eighth factor demonstrating the unlikelihood of confusion.

We decline to consider Plaintiff's argument that the underlying action is a cancellation proceeding rather than a trademark infringement action, so as to make geographic proximity of use irrelevant to the likelihood-of-confusion inquiry. See Coach House Rest., 934 F.2d at 1564 (explaining that where a prior user seeks to cancel a registrant's mark, there is a presumption that the registered mark is being used nationwide, i.e., it is already encroaching upon the prior user's market — wherever that may be — and therefore "geographical remoteness is irrelevant to this likelihood of confusion inquiry"). The district court squarely held in its order granting Defendants summary judgment: "This is not . . . a cancellation proceeding." And our review of Plaintiff's brief to the district court persuades us that the district court was warranted in treating this case only as an infringement action. Plaintiff failed to present his case to the district court as a cancellation proceeding; Plaintiff only argued that he was "seeking" to cancel Defendants' mark pursuant to 15 U.S.C. § 1119, not that this prayer for relief transformed his § 43(a) trademark infringement action into a cancellation proceeding.
Notwithstanding the district court's clear characterization of this suit as a trademark infringement action, and resolution thereof as a § 43(a) infringement claim, Plaintiff's briefs on appeal fail to fairly raise this issue for our review, which is a necessary predicate to Plaintiff's invocation of Coach House. "Under our case law, a party seeking to raise a claim or issue on appeal must plainly and prominently so indicate. Otherwise, the issue . . . will be considered abandoned." United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir. 2003).
Plaintiff did not include the issue of the district court's mischaracterization of his suit in his statement of the issues; he does not discuss it in his summary of the argument; and he does not list it in his table of contents. In fact, he failed to even include a table of contents. His standard-of-review section does not list the standard for reviewing questions of law, such as this one. Nowhere in his brief, or in his submissions to the district court, does he even list the elements of a claim for cancellation. Most importantly, Plaintiff failed to argue how his complaint sufficiently alleged such a claim under federal notice pleading standards, failed to elucidate the relationship between a trademark infringement action and a cancellation proceeding, and failed to provide support for the proposition that merely praying for cancellation as a remedy for infringement is sufficient to convert an infringement action into a cancellation action or a dual infringement and cancellation action.
Plaintiff's only argument on appeal with respect to the district court's characterization of his suit as one for trademark infringement, as opposed to cancellation, appears in the context of his discussion of the relevance of geographic proximity of use in a trademark infringement action. Because Plaintiff proceeds throughout his appeal as if this action is one for trademark infringement under § 43(a) of the Lanham Act and has failed to "plainly and prominently" indicate his intent to appeal to our court to correct any mischaracterization of his suit by the district court, we deem this argument abandoned.

Viewing the likelihood-of-confusion factors as a whole, there is minimal evidence of a likelihood of confusion between Plaintiff's and Defendants' restaurants aside from the initial similarity of their names and the fact that they both provide restaurant services. The remaining factors all weigh against a likelihood of confusion, some overwhelmingly so. There are stark differences between the two restaurants' cuisine and ambiance. There is virtually no evidence of confusion in advertising channels. No reasonable jury could find that Defendants intended to trade on Plaintiff's mark, and there is negligible evidence of any actual confusion between the two restaurants. Moreover, in light of the vast geographical distance between the two markets currently used by the parties, a likelihood of confusion is highly unlikely. In sum, Plaintiff has failed to adduce sufficient evidence upon which a reasonable jury could find a likelihood of confusion between Plaintiff's and Defendants' marks. Accordingly, we affirm the district court's grant of summary judgment to Defendants on Plaintiff's Lanham Act count.

Because neither party contests the district court's conclusion that the elements to establish deceptive trade practices under Georgia's Uniform Deceptive Trade Practices Act and fraud under O.C.G.A. § 23-2-55 are identical to those required to prevail on Plaintiff's federal infringement claim, we also affirm the district court's grant of summary judgment on these state law claims. See Jellibeans, 716 F.2d at 839.

B. Appropriation of Likeness

We now turn to Plaintiff's second issue on appeal: that the district court erred in granting summary judgment on his appropriation-of-likeness tort claim. To prove an appropriation of likeness under Georgia law, a plaintiff must establish that the defendant invaded his privacy by appropriating, for the defendant's benefit, use or advantage, the plaintiff's name or likeness. Cabaniss v. Hipsley, 114 Ga. App. 367, 151 S.E.2d 496, 500 (1966). Plaintiff asserts on appeal that an appropriation of likeness need not be intentional to be an actionable invasion of privacy. This position is wholly without merit.

An appropriation of likeness without an intent to use the likeness for one's benefit fails to meet the very definition of the tort itself. Furthermore, Georgia case law plainly establishes that summary judgment is proper where a plaintiff fails to show an intentional or knowing appropriation of likeness. Blakey v. Victory Equip. Sales, Inc., 259 Ga.App. 34, 576 S.E.2d 288, 292 (2002) (holding that the district court properly awarded summary judgment to defendant on plaintiff's appropriation-of-likeness claim for the sole reason that "[t]here [was] no evidence . . . that defendants ever knowingly took Blakely's identity for their purposes").

As discussed in Part II.A., Plaintiff also fails to present any material evidence that calls into question the truthfulness of Clapp's claim of origin for his restaurant's name aside from the general assertion that Clapp's experience working in Los Angeles may have resulted in his knowledge of the "Dan Tana's" restaurant. Without any evidence to contradict Clapp's account that his restaurant is named after his own two children, as opposed to Plaintiff's restaurant in Hollywood, and without any evidence of a motive for Defendants to trade on the name of Plaintiff's restaurant, there can be no intentional appropriation of Plaintiff's name or likeness. In sum, the district court did not err in granting summary judgment to Defendants on Plaintiff's appropriation-of-likeness claim.

CONCLUSION

Because Plaintiff failed to produce sufficient evidence raising a genuine issue of material fact on the likelihood of confusion between Plaintiff's and Defendants' marks, the district court did not err in granting summary judgment to Defendants on Plaintiff's federal and state trademark infringement claims and his claim of fraud arising under Georgia law. We also uphold the district court's grant of summary judgment to Defendants on Plaintiff's appropriation-of-likeness claim due to the absence of any evidence of an intentional appropriation of Plaintiff's likeness.

AFFIRMED.