                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 20 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DWAYNE SMITH,                                    No. 08-56915

              Petitioner - Appellant,            D.C. No. 2:02-cv-00051-JVS-JWJ

  v.
                                                 MEMORANDUM *
C. M. HARRISON, Warden of California
State Prison, Los Angeles County
Substituted for C K Pliler,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                             Submitted July 16, 2010 **
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and ROBART, District
Judge.***



        *
             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 James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
       Dwayne Smith appeals the district court’s order denying his petition for

habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to

Smith’s petition. Smith’s shackling during trial did not violate due process under

clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Even

visible restraints are permitted during trial after “a trial court determination, in the

exercise of its discretion, that they are justified by a state interest specific to a

particular trial.” Deck v. Missouri, 544 U.S. 622, 629 (2005); see also Larson v.

Palmateer, 515 F.3d 1057, 1062 (9th Cir. 2008) (quoting Deck, 544 U.S. at 629).1

In this case, the state trial judge employed restraints designed to be inconspicuous.

See Morgan v. Bunnell, 24 F.3d 49, 51-52 (9th Cir. 1994); Jones v. Meyer, 899

F.2d 883, 885 (9th Cir. 1990). The judge decided that Smith needed to be shackled

only after hearing several attorneys’ specific security concerns related to Smith.

We also note that it was no secret that Smith was in custody. The murder for

which he was being tried occurred in the L.A. County jail against a fellow inmate.


       1
        The clearly established rule stated in Deck applies to this case, even
though the Supreme Court decided Deck after Smith’s conviction became final.
See Larson, 515 F.3d at 1061-62 (applying the rule from Deck to a 1992 conviction
because the rule is “one that is ‘deeply embedded in the law,’ reflecting a
consensus ‘dating back to the 19th century’”). Furthermore, Cox v. Ayers, 588
F.3d 1038 (9th Cir. 2009), does not impact our analysis because AEDPA was
inapplicable in that case.

                                            -2-
      Nor was the state court’s finding that Smith posed a security risk an

unreasonable determination of the facts in light of the evidence. See 28 U.S.C. §

2254(d)(2). The trial judge was not required to hold a formal evidentiary hearing

before deciding that Smith needed to be shackled. See Duckett v. Godinez, 67 F.3d

734, 749 n.7 (9th Cir. 1995) (citing Jones, 899 F.2d at 886-87). The judge met

with counsel in chambers and then convened a proceeding in open court, at which

Smith personally addressed the judge about the shackling issue. The transcript of

the in camera hearing and the proceedings in open court amply justify the trial

judge’s concern that Smith posed a substantial risk to the safety of counsel and the

other defendants. The judge’s finding, which has not been rebutted by clear and

convincing evidence, is entitled to a presumption of correctness. 28 U.S.C. §

2254(e)(1). Moreover, the California Court of Appeal’s decision that the judge

acted within his discretion under these circumstances is not contrary to, or an

unreasonable application of, Supreme Court law. Deck, 544 U.S. at 629; 28 U.S.C.

§ 2254(d)(1). The evidence before the district court showed that Smith said that he

had a “surprise” in store for the court, had made a threatening move towards one of

the other defense counsel, and had a history of psychological problems, including a

recent suicide attempt.




                                         -3-
      The shackling and the seating arrangements during trial did not deprive

Smith of his right to consult with counsel under the Sixth Amendment. Under

clearly established Supreme Court precedent, a defendant has the right to consult

with counsel during trial. See United States v. Miguel, 111 F.3d 666, 672 (9th Cir.

1997) (citing Geders v. United States, 425 U.S. 80, 91 (1976)). However, after

holding an evidentiary hearing, the district court found that Smith was indeed able

to consult with his counsel during trial, both inside and outside of the courtroom,

despite the shackles and the seating arrangements. That finding of fact was not

clearly erroneous. Accordingly, the state court’s determination that Smith was not

deprived of his right to counsel was not contrary to, or an unreasonable application

of, Supreme Court precedent.

      Smith’s ineffective assistance of counsel claim also fails. Smith’s defense

counsel disclosed to the trial judge that Smith had said that he had a surprise in

store for the court. After holding an evidentiary hearing, the district court found

that counsel’s disclosure was made out of concern for courtroom security. That

finding of fact was not clearly erroneous. After making his disclosure, counsel

continued to act as a zealous advocate for Smith and even objected repeatedly to

the shackling and seating arrangements. The state court found that counsel had an

ethical duty to disclose his concern over courtroom security. People v. Cox, 809


                                          -4-
P.2d 351, 369 (Cal. 1991), overruled on other grounds by People v. Doolin, 198

P.3d 11, 36 n.22 (Cal. 2009). The state court’s decision denying Smith’s

ineffective assistance of counsel claim was not contrary to, or an unreasonable

application of, clearly established Supreme Court precedent. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984).

      AFFIRMED.




                                         -5-
