                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 25 2012

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL E. SPENCER,                              No. 09-16014

              Petitioner - Appellant,            D.C. No. 3:05-cv-04338-PJH

  v.
                                                 MEMORANDUM*
RICHARD J. KIRKLAND,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                             Submitted July 20, 2012**
                             San Francisco, California

Before: PAEZ and BYBEE, Circuit Judges, and VANCE, Chief District Judge.***

       Michael Spencer was sentenced to state prison for 121 years to life after a

jury found him guilty of committing three robberies and being a felon in

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Sarah S. Vance, Chief District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
possession of a firearm. During his trial, Spencer was visibly restrained. Spencer

argues that the manner in which he was restrained was an unreasonable application

of Supreme Court precedent and based on an unreasonable determination of the

facts. The district court denied Spencer’s request for habeas relief. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.

      Spencer does not challenge the trial court’s finding of a manifest need for

physical restraints, and the record supports such a finding. Instead, he argues that

the trial court failed to use less restrictive alternatives that would have allowed him

increased movement and would have been less obvious to the jury.

      The Supreme Court recognizes that “the Constitution forbids the use of

visible shackles during [trial], unless that use is ‘justified by an essential state

interest’—such as the interest in courtroom security—specific to the defendant on

trial.” Deck v. Missouri, 544 U.S. 622, 624 (2005). The Court has not, however,

“mandat[ed] specific procedures or evidence that must be considered before

imposing restraints.” Crittenden v. Ayers, 624 F.3d 943, 972 (9th Cir. 2010).

      Because Spencer fails to cite to Supreme Court precedent requiring that the

trial court pursue less restrictive alternatives to his restraints, and because the state

court’s determination of the facts was not unreasonable, the district court properly

denied habeas relief.


                                            2
AFFIRMED.




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