                              REVISED
                   UNITED STATES COURT OF APPEALS
                        for the Fifth Circuit

              _____________________________________

                           No. 96-50642
              _____________________________________



                        MICHAEL LEE LOCKHART,

                                                Petitioner-Appellant,

                               VERSUS

          GARY JOHNSON, Director, Texas Department of
            Criminal Justice, Institutional Division,

                                                   Defendant-Appellant.

     ______________________________________________________

          Appeal from the United States District Court
                for the Western District of Texas
     ______________________________________________________

                           January 9, 1997

Before DAVIS, JONES and DUHÉ, Circuit Judges.

DAVIS, Circuit Judge:

     Michael Lee Lockhart, a Texas death row inmate, seeks a
certificate   of   probable   cause   (CPC)   or    a   certificate   of

appealability (COA) to challenge the district court's dismissal of

his habeas petition.    Because Lockhart has not made a substantial

showing of the denial of a constitutional right, we deny the COA.

                                 I.

                                 A.

     Lockhart was indicted in Jefferson County, Texas, for the

capital murder of Police Officer Paul Hulsey, Jr., in Beaumont,
Texas.    Upon an agreed motion, venue was transferred to Bexar

County, Texas.   Lockhart was tried before a jury upon a plea of not

guilty, and in October 1988, the jury found him guilty of capital

murder.   Following a separate punishment hearing, the same jury

answered affirmatively the three special issues submitted pursuant

to   former   Article   37.071(b)   of   the   Texas   Code   of   Criminal

Procedure.    The trial court then sentenced Lockhart to death.

      Lockhart directly appealed his conviction and sentence to the

Texas Court of Criminal Appeals, which affirmed the conviction and

sentence in December 1992.      Lockhart v. State, No. 70734 (Tex.

Crim. App. Dec. 2, 1992).1      Lockhart then petitioned the United

States Supreme Court for writ of certiorari, which was denied in

October 1993.    Lockhart v. Texas, 114 S.Ct. 146 (1993).

      In July 1993, the trial court scheduled Lockhart's execution

for November 23, 1993.     Six days before his scheduled execution,

Lockhart filed in the trial court a pro se request for appointment

of counsel and motion for stay of execution.             The trial court

denied Lockhart's requested stay.         The Texas Court of Criminal

Appeals affirmed the trial court's denial of a stay on the ground

that no colorable claim for habeas relief had been asserted and,

therefore, the trial court's jurisdiction to enter a stay had not

been invoked.    Ex parte Lockhart, 868 S.W.2d 346, 349 (Tex. Crim.

App. 1993).




     1
       A portion of the opinion was published.         Lockhart v. State,
847 S.W.2d 568 (Tex. Crim. App. 1992).

                                    2
       In    November   1993,   Lockhart     filed   a   pro   se   motion     for

appointment of counsel and a request for stay of execution in the

U.S.    District   Court.       The   district   court   granted    a   stay    of

execution and appointed counsel.             Counsel then filed a habeas

petition.      The Director filed his answer and motion for summary

judgment and petitioner responded to the Director's motion.                    In

July 1996, the district court granted the Director's motion for

summary judgment and denied habeas relief.

       In August 1996, the trial court scheduled Lockhart's execution

for September 10, 1996.         Lockhart then filed a notice of appeal,

along with an application for certificate of probable cause to

appeal and a motion to stay his execution pending appeal.                      We

stayed Lockhart's execution pending this appeal.

                                        B.

       On March 22, 1988, Beaumont Police Officer Paul Hulsey, Jr.

saw appellant driving a red Corvette with a Florida license plate

in Beaumont, Texas.      Officer Hulsey saw that appellant's passenger

was a local drug dealer.         When appellant saw the officer, he sped

away.       Officer Hulsey gave chase, but was unable to catch him.

Later that evening, Officer Hulsey spotted appellant's red Corvette

in a motel parking lot and learned that he was in the motel.

Officer Hulsey went to appellant's motel room to arrest him, and

Lockhart shot Officer Hulsey.

       According to Lockhart's statement to police, when Officer

Hulsey entered Lockhart's room, Lockhart knew Hulsey did not have

a backup and he planned to get his gun and "get the drop on" the


                                        3
officer.   Hulsey apparently saw Lockhart's gun, because Hulsey

ordered Lockhart to put his hands on the wall. Lockhart responded,

"Why?" and Hulsey said "you have a gun."       Lockhart continued to

argue with Hulsey.    Hulsey then unholstered his gun and Lockhart

complied with his demand to place his hands on the wall.    However,

Lockhart placed his hands on the wall next to a mirror enabling him

to see Hulsey's actions. When Hulsey walked up behind Lockhart and

lowered his gun to put it in his holster,2 Lockhart turned and hit

Hulsey in the face.   A fight ensued, and Hulsey's gun discharged.

Lockhart, who had managed to obtain his gun in the struggle, shot

Hulsey and then, after a brief time, he shot Hulsey again.    Hulsey

"begged" Lockhart not to shoot anymore.    Lockhart grabbed his keys

and money and left the room.

     On August 18, 1988, after his trial had been proceeding for

about two weeks, Lockhart was taken to the courtroom after lunch

and was uncuffed as usual.   Lockhart bolted for the window in the

third-floor courtroom and dove through it.     Lockhart was captured

shortly afterwards and taken to a local hospital to be treated for

his injuries.

                                II.

                                A.

     Lockhart raised fifteen claims in the district court but he

only raises challenges in this court to the district court's

rejection of three of his claims.    Two of the claims the petitioner


     2
        As Lockhart was telling this, he reiterated that this was
how Hulsey "really fucked up."

                                 4
presents to us were expressly rejected by the Texas Court of

Criminal Appeals on direct appeal.         That court found no merit to

Lockhart's argument that he was denied a fair trial when the trial

court impermissibly had him shackled and handcuffed during the

trial.    The Texas Court of Criminal Appeals also denied relief to

Lockhart on his claim that the trial court erred in granting

Lockhart's request to leave the courtroom during a portion of the

voir dire examination.

     Lockhart presents a third claim to this court that has never

been presented to the state court, and the Director has waived the

exhaustion requirement.       This claim is predicated on the fact that

Lockhart's counsel--or his law firm--was actively representing the

trial judge in an unrelated civil action. Lockhart argues that his

trial counsel was ineffective in failing to either provide him with

conflict-free representation, move for the recusal of the trial

judge,    advise   Lockhart    of   the   ongoing   nature   of   counsel's

representation of the trial judge, or offer to withdraw from

petitioner's representation.        We consider below our standard of

review for Lockhart's claims and apply that standard to those

claims.

                                     B.

     This court in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.

1996), concluded that §§ 102 and 104 of the Anti-Terrorism and

Effective Death Penalty Act (AEDPA) applied to pending habeas

cases.    See also Moore v. Johnson, No. 95-20871, slip op. at 997-

999 (5th Cir. Dec. 6, 1996) (explaining retroactive effect of


                                      5
AEDPA).     Section 1043 (to be codified at 28 U.S.C. § 2254(d))

provides:

           (d) An application for a writ of habeas corpus on
      behalf of a person in custody pursuant to the judgment of
      a State court shall not be granted with respect to any
      claim that was adjudicated on the merits in State court
      proceedings unless the adjudication of the claim--

                 (1) resulted in a decision that was
            contrary to, or involved an unreasonable
            application of, clearly established Federal
            law, as determined by the Supreme Court of the
            United States; or

                 (2) resulted in a decision that was based
            on an unreasonable determination of the facts
            in light of the evidence presented in the
            State court proceeding.

      Interpreting that section in Drinkard, we concluded that

subsection (d)(2) of § 2254 applied to a state court's factual

determinations. We concluded that this subsection "permits federal

court relief if the state court adjudication of the claim ‘resulted

in a decision that was based on an unreasonable determination of

the facts in light of the evidence.’" Drinkard, 97 F.3d at 767

(quoting § 2254(d)).     We held that subsection (d)(1) governed our

review of questions of law and mixed questions of law and fact.

The first clause of this subsection permits a federal court to

grant habeas relief for legal error only if it determines that a

state court's decision rested on a legal determination that was

"contrary to . . . clearly established federal law as determined by

the Supreme Court."      Id. at 768.       When reviewing a mixed question

of law and fact, "a federal court may grant habeas relief only if

it   determines   that   the   state       court   decision   rested   on   "an



                                       6
unreasonable application of clearly established federal law as

determined by the Supreme Court" to the facts of the case.                        Id.

                                          C.

      The Texas Court of Criminal Appeals rejected, on the merits,

Lockhart's    arguments      that   the    trial     court    erred       in   allowing

Lockhart to be handcuffed and shackled in the presence of the jury

and in allowing Lockhart to leave the courtroom during part of the

voir dire.

      With   respect   to     Lockhart's        first      claim,    restraining        a

disruptive    defendant      does   not    offend      any   clearly      established

Supreme Court precedent.           On the contrary, the Supreme Court has

expressly    held   that     the    use   of    such    visible      restraints      is

appropriate under certain circumstances.                 See Illinois v. Allen,

397   U.S.   337,   343-44    (1970).          The   decision       to    restrain   an

obstreperous defendant with visible restraints lies within the

sound discretion of the trial judge.                 Id.      The Texas Court of

Criminal Appeals reasonably concluded that the trial court did not

abuse its discretion in visibly restraining Lockhart. Lockhart had

previously attempted a daring escape from the courthouse by bolting

and diving through a closed third story window.                     Also, the trial

court heard testimony that Lockhart had threatened to cause trouble

for the deputies who escorted him to and from court.                     Additionally,

Lockhart reacted to a ruling during a pretrial hearing by standing

up and yelling obscenities and resisting the efforts of officers to

control him and remove him from the courtroom.                      Thus, the Texas

Court of Criminal Appeals' resolution of this claim does not offend


                                          7
any clearly established Supreme Court precedent.               Neither does its

application of the law to the facts of this case represent an

unreasonable application of that law.            Lockhart has failed to make

a substantial showing of the denial of a constitutional right with

respect to this claim.

     We   now   turn    to    Lockhart's      claim   that    the    trial    court

impermissibly conducted voir dire outside his presence.                   The trial

court permitted Lockhart to leave the courtroom only after an

insistent request by Lockhart to do so.           The state court found that

Lockhart was physically capable of remaining in the courtroom but

voluntarily waived his right to be present.

     Lockhart       points   to   no   clearly   established        Supreme   Court

precedent    that    prohibits    criminal     defendants     from    voluntarily

waiving their presence during the jury selection process. Assuming

that Supreme Court precedent exists which requires the state to

permit a defendant who wishes to do so to be present during jury

selection,    here    the    defendant    voluntarily    left       the   courtroom

knowing that he had the right to remain.                     The state court's

rejection of Lockhart's claim under these circumstances is not an

unreasonable application of the law to the facts.                     We are also

persuaded that Lockhart has failed to make a substantial showing of

the denial of a constitutional right with respect to this claim.

                                         D.

     Lockhart asserts finally that his counsel provided ineffective

assistance because he had a conflict of interest in representing

Lockhart when his counsel's law firm also represented the trial


                                         8
judge in an unrelated civil action.               As stated above, this claim

was not presented to the state court, and the Director has waived

the exhaustion requirement.             Consequently, the AEDPA's provision

altering our standard of review, when the petitioner's claim has

been adjudicated on the merits by a state court, has no application

to this claim.       The district court rejected this claim as a matter

of law.    We review the district court's legal conclusions de novo.

 Lockhart argues that his counsel's conflict of interest resulted

in him receiving ineffective assistance of counsel in a number of

respects.     He argues that counsel failed to provide him with

conflict-free representation, to seek the disqualification of the

trial   judge,      advise   him   of    the   nature   of   defense    counsel's

representation       of   the   trial    judge,    or   to   withdraw   from   his

representation.       Lockhart argues that his trial counsel's failure

to provide conflict-free representation created a per se conflict

of interest under Cuyler v. Sullivan, 446 U.S. 335 (1980).

     As the district court observed, we have not read Cuyler this

broadly.     In Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en

banc), cert. denied 116 S.Ct. 1547 (1996), our en banc court

determined that Cuyler is primarily reserved for the circumstance

where     counsel    represents     multiple       clients    with   conflicting

interests.     We concluded that a petitioner asserting ineffective

assistance of counsel claims predicated on some other conflict of

interest must ordinarily satisfy both prongs of the test set forth

in Strickland v. Washington, 466 U.S. 668, 687 (1984).                     As in

Beets, if we assume arguendo that petitioner's trial counsel


                                          9
breached some duty to Lockhart by continuing to represent him while

counsel's firm was representing the trial judge in an unrelated

civil matter, that breach does not establish a per se violation of

petitioner's Sixth Amendment right to effective assistance.          To

warrant federal habeas relief under Strickland, petitioner must

demonstrate error by counsel that fell below an objective standard

of reasonableness and that this error prejudiced his case.            To

establish the prejudice prong of Strickland, petitioner must show

a reasonable probability that counsel's error changed the result of

the trial. Strickland, 466 U.S. at 687, 694.            We agree with the

district court that Lockhart demonstrated no basis for a finding of

prejudice.    Petitioner does not specify any decision by defense

counsel which was affected by his firm's representation of the

trial judge on an unrelated matter.         He also fails to cite any

legal authorities on which counsel could have based a motion to

disqualify the trial judge. In sum, petitioner fails to allege any

steps his counsel took or failed to take as a result of this

relationship that affected his defense.      Because petitioner failed

to allege facts from which a factfinder could infer that he was

prejudiced from the relationship between the trial judge and his

counsel's    law   firm,   the   district   court   correctly   rejected

Lockhart's ineffective assistance of counsel claims.

                                 III.

     For the reasons stated above, we conclude that Lockhart has

not made a substantial showing of the denial of a constitutional




                                   10
right.   We therefore deny the certificate of appealability and

vacate the stay of execution we entered earlier.




                               11
