          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                             September 10, 2009
                               No. 08-40615
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

RAUL GARZA TAMEZ,

                                           Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent-Appellee


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 6:07-CV-362


Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
      Raul Garza Tamez, Texas prisoner # 718879, was convicted by a jury of
murder and sentenced by the jury to life imprisonment. Tamez v. State, 205
S.W. 3d 32, 37 (Tex. App. 2006). The district court denied Tamez habeas corpus
relief pursuant to 28 U.S.C. § 2254.     The district court granted Tamez a
certificate of appealability (COA) on the issues whether the state trial court
deprived him of a fair trial by allowing him to be tried in leg restraints and


      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-40615

whether counsel was ineffective for failing to object to Tamez being tried in leg
restraints.
      In addition to arguing the issues as to which the district court granted a
COA, Tamez contends that counsel was ineffective for failing to discover and
present mitigating evidence; that the state trial court violated his First
Amendment rights by allowing evidence of his gang affiliation; that the state
trial court erred by removing potential jurors sua sponte; and that the Texas
Court of Criminal Appeals acted unconstitutionally by denying him an
evidentiary hearing on his state habeas application. The respondent correctly
notes that the district court did not grant a COA on these issues and that Tamez
did not move in his appellant’s brief for an expansion of the COA granted by the
district court. Tamez did not move before briefing for this court to expand the
grant of COA. Tamez requests expansion of the grant of COA in his reply brief;
that request is untimely for our consideration. See United States v. Williamson,
183 F.3d 458, 464 n.11 (5th Cir. 1999); United States v. Kimler, 150 F.3d 429,
431 & n.1 (5th Cir. 1998).
      Tamez contends that he was deprived of a fair trial because he was kept
in both hand and leg restraints during the entire trial. According to Tamez, he
was seated at the end of the defense table which was open underneath, allowing
his legs to be seen. The state trial court took no precautions before Tamez took
the stand to mitigate the prejudice inherent in Tamez’s shackling at trial, such
as wrapping the shackles in plastic or directing Tamez to sit when the jury
entered the room in order to avoid the noise created by the movement of the
shackles. He alleges that there was an “excessive TDCJ [Texas Department of
Criminal Justice] detail shadowing [his] every move,” even inside the courtroom.
He further contends that he was prejudiced by being shackled, particularly in
light of his defense of self-defense, and argues that the evidence against him was
not sufficiently overwhelming to render the state court’s error harmless. He
argues that counsel was ineffective for failing to object to the shackling, and he

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alleges that counsel had a disincentive to object because she was employed by
TDCJ and adhered to a TDCJ policy instead of objecting to it.
      Tamez alleges in his appellant’s brief that he wore restraints around both
his legs and hands during trial. He did not allege in the district court that his
hands were restrained during trial. This court does not generally consider
habeas arguments raised for the first time on appeal. See Henderson v. Cockrell,
333 F.3d 592, 605 (5th Cir. 2003) (declining to address claim raised for the first
time in an appellate COA motion).
      We cannot determine from the record what factual findings were
necessarily decided by implication in Tamez’s state habeas corpus proceeding.
Cf. Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (stating that the
§ 2254(e)(1) presumption of correctness extends to explicit and implicit findings
of fact which are necessary to the state court’s conclusions). However, the record
does not indicate that Tamez’s state habeas claim was denied based on any
unreasonable application of law or unreasonable finding of fact.               See
§ 2254(d)(1)&(2).
      “The law has long forbidden routine use of visible shackles during the guilt
phase [of a trial]; it permits a State to shackle a criminal defendant only in the
presence of a special need.” Deck v. Missouri, 544 U.S. 622, 626 (2005). The
same is true during the penalty phase in a capital trial. Id. at 632-33. A trial
court may, however, require a defendant to wear restraints if the trial court
deems it necessary to protect the court and the courtroom. Id. at 632. The trial
court must take into account the circumstances of the particular case. Id. The
Supreme Court recognizes that “[t]here will be cases . . . where these perils of
shackling are unavoidable.”      Id.   When determining whether a violation
occurred, this court considers any “steps to mitigate any prejudicial influence on
the jury.” Chavez v. Cockrell, 310 F.3d 805, 809 (5th Cir. 2002).
      On collateral review of a state conviction, a federal court will grant habeas
relief only when the use of restraints “had a substantial and injurious effect or

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influence in determining the jury’s verdict.” Hatten v. Quarterman, 570 F.3d
595, 604 (5th Cir. 2009) (citations and internal quotation marks omitted).
Overwhelming evidence of a defendant’s guilt may be sufficient to render
harmless any error in shackling a defendant. Id. Moreover, a jury’s knowledge
that a defendant already is a convicted prisoner may be a factor to consider when
addressing whether a shackling error is harmless. See Wilkerson v. Whitley, 16
F.3d 64, 68 (5th Cir.), reinstated in relevant part, 28 F.3d 498, 509 (5th Cir. 1994)
(en banc).
      It is undisputed that Tamez was a convicted prisoner on trial for a murder
committed in prison and that several other convicted prisoners testified at his
trial. Prisoner/witness Oscar Carranza--whose affidavit appears in the state
court record--conceded that some of those other prisoner/witnesses properly were
wearing restraints.
      Any error by the state trial court in having Tamez shackled during trial
was harmless. The jury knew that Tamez was a prisoner accused of committing
a crime in prison. See Wilkerson, 16 F.3d at 68. Additionally, the evidence
against Tamez was overwhelming.           He chased his victim and beat him
repeatedly in front of numerous eyewitnesses, even beating the victim after he
fell. Tamez does not deny that he beat the victim. The victim was handcuffed
at the time and could not possibly have inflicted injury on Tamez, no matter
what threats he may have made. The jury also could have inferred from the
evidence that Tamez deliberately fooled an inexperienced guard into placing him
in the victim’s cell, where he could lay in wait for the victim’s return. See
Tamez, 205 S.W.3d at 35-36. In light of the strength of the evidence against
Tamez and the jury’s knowlege that Tamez was already a prisoner, any viewing
of Tamez’s leg restraints by the jury would not have substantially influenced the
verdict. See Hatten, 570 F.3d at 604.
      To prevail on an ineffective assistance claim, a defendant must show “that
counsel’s performance was deficient” and “that the deficient performance

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prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
The deficiency prong requires that a defendant show that his “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
Under the prejudice prong, the defendant must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different, and that counsel’s errors were so serious
that they rendered the proceedings unfair or the result unreliable. Lockhart v.
Fretwell, 506 U.S. 364, 373 (1993). A court need not address both deficient
performance and prejudice if the defendant fails to make a sufficient showing on
either of them. Strickland, 466 U.S. at 697. For the same reasons that Tamez
cannot demonstrate that he was prejudiced by being tried wearing leg restraints,
he cannot demonstrate that he was prejudiced by counsel’s alleged failure to
object to him being tried in those restraints.
      AFFIRMED.




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