                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-3112
BRADLEY S. WHITMAN,
                                         Petitioner-Appellant,
                              v.

BYRAN BARTOW,
                                         Respondent-Appellee.
                        ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
            No. 04 C 248—John C. Shabaz, Judge.
                        ____________
  ARGUED NOVEMBER 8, 2005—DECIDED JANUARY 18, 2006
                   ____________


  Before BAUER, MANION, and EVANS, Circuit Judges.
  BAUER, Circuit Judge. During his trial for drug-related
offenses, Bradley Whitman appeared before the jury in an
orange prison jumpsuit. Whitman was ultimately found
guilty and sentenced to nine years in prison. After exhaust-
ing his state remedies, State v. Whitman, 259 Wis. 2d 482
(Wis. Ct. App. 2002) (petition for review denied by State v.
Whitman, 260 Wis. 2d 753 (Wis. 2003)), Whitman sought
habeas corpus in federal district court. He alleged that he
was denied due process because he was compelled to wear
a prison-issued jumpsuit during his four-day jury trial. In
addition, Whitman asserts that his trial counsel was
deficient for failing to secure him other clothing to wear
during the trial proceedings. The district court denied
2                                               No. 04-3112

Whitman’s habeas petition. We affirm the judgment of the
district court, finding that any constitutional infirmity
resulting from Whitman’s appearance in his prison jump-
suit amounts to harmless error.


                     I. Background
  The Wisconsin appellate court recited the following
facts, which we presume to be true, 28 U.S.C. § 2254(e)(1),
when it affirmed Whitman’s conviction.
   On February 27, 1998, Whitman was arrested for killing
a woman who had been a guest at his house. During a
lawful search of Whitman’s home, police found and seized
illegal drugs and drug paraphernalia. Whitman was
subsequently charged with first-degree intentional homicide
and various drug-related offenses. The homicide and drug
charges were later severed, with the homicide trial held
first. Whitman was found guilty of negligent homicide, a
lesser included offense of first-degree intentional homicide,
and sentenced to seven years in prison.
  While Whitman was serving this sentence, the trial
concerning the drug charges was scheduled. Whitman
appeared before the court in his orange, prison-issued
jumpsuit. The judge and Whitman’s attorney engaged in
a colloquy in which the judge asked the attorney how
Whitman would be dressed at trial. The attorney stated
that Whitman would be dressed in his prison garb, to which
Whitman interjected: “I have no other clothes, your Honor.”
The court then stated:
    All right. And I did—The record should reflect I did
    speak briefly to defense counsel yesterday afternoon.
    Defense counsel was here to meet with his client
    yesterday after Mr. Whitman had been transported
    from wherever he is incarcerated, and I did inquire
    whether or not he had street clothes, and counsel said
No. 04-3112                                                  3

    he wasn’t sure. I said, well, check on it, if you want him
    to appear in street clothes make those arrangements;
    and apparently that decision has been made that he
    will appear in that uniform.
Trial Tr. 8-9, Jan. 18, 2001. In response, Whitman’s attor-
ney stated, “[t]hat’s correct, your Honor.” Id. at 9. The trial
began; Whitman was convicted on all charges and sen-
tenced to a total of nine years in prison.
  On September 26, 2001, Whitman filed a motion for a new
trial, arguing that both the circuit court and trial counsel
failed to properly safeguard Whitman’s rights because, in
part, he was compelled to wear the prison jumpsuit at trial.
At the hearing, Whitman’s attorney testified that he took no
steps to see that Whitman had street clothing to wear at
trial. Moreover, he could not recall ever discussing the
subject with Whitman, and he had no strategic reason for
Whitman to appear in a prison jumpsuit. However, the
attorney was sure that Whitman never objected to wearing
the jumpsuit; he believed that Whitman would have
complained “loudly and repeatedly” if he did not want to
appear in the jumpsuit at trial, and the attorney would
have recalled these complaints. Stipulated testimony from
Whitman, however, stated that Whitman did not want to
appear in a prison jumpsuit at trial, and did in fact com-
plain.
  The court denied Whitman’s motion. The court ac-
cepted the attorney’s version of the facts, and determined
that Whitman did not object to wearing the prison jump-
suit. The court also concluded that Whitman’s appear-
ance in the jumpsuit did not result in any prejudice to
his case. According to the court, Whitman’s guilt on the
drug charges was overwhelming. Therefore, his appearance
in the prison jumpsuit was irrelevant. Whitman appealed.
  The Wisconsin Court of Appeals, the last state court to
consider the merits of the issue, rejected all of Whit-
man’s claims. The appeals court concluded that because
4                                                No. 04-3112

Whitman did not timely object to appearing in a prison
jumpsuit, he could not later assert that his rights were
violated. Therefore, his due process claim failed. Whitman’s
ineffective assistance of counsel claim likewise perished.
The appeals court agreed with the trial court that the
abundant evidence of Whitman’s guilt negated any preju-
dice that may have been caused by his appearance in prison
clothing.
  Whitman filed a petition for habeas relief in the dis-
trict court for the Western District of Wisconsin, arguing
that the Wisconsin Court of Appeals decision was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). The
district court disagreed, and dismissed Whitman’s peti-
tion with prejudice.
  Whitman filed a notice of appeal in this Court, which
we construed as an application for a certificate of appeal-
ability. After reviewing the record on appeal, we issued a
certificate to determine whether “Whitman was com-
pelled to wear a prison jumpsuit at trial in violation of
due process,” and “whether he received constitutionally
sufficient assistance of counsel.”


                       II. Analysis
  A state cannot compel a defendant to stand trial before a
jury wearing identifiable prison clothing without offending
that defendant’s Fourteenth Amendment due process rights.
Estelle v. Williams, 425 U.S. 501, 505 (1976). However, the
Supreme Court in Estelle noted that the defendant must
timely object to appearing in prison attire and that “the
failure to make an objection to the court as to being tried in
such [identifiable prison] clothes, for whatever reason, is
sufficient to negate the presence of compulsion necessary to
No. 04-3112                                                      5

establish a constitutional violation.” Id. at 512-13 (footnote
omitted).
  Whitman claims that his statement to the court, “I have
no other clothes, your Honor,” was a timely and proper
objection to his appearing at trial in prison garb. This
objection, Whitman argues, was ignored. Therefore, he
had no choice but to proceed to trial in his prison jumpsuit.
He was, in other words, “compelled” to sit before the jury in
the jumpsuit.
  The Wisconsin Court of Appeals rejected this argument,
holding that Whitman’s statement “[did] not rise to the
level of an objection.” Whitman, 259 Wis. 2d at ¶14. How-
ever, we find that whether Whitman’s declaration is
tantamount to a valid objection is irrelevant. Assuming
Whitman’s outburst does rise to the level of an objection
and thus the court violated Whitman’s constitutional rights,
this violation would be harmless given the overwhelming
evidence of Whitman’s guilt.1



1
  Our determination of whether Whitman’s appearance in his
prison attire was harmless proceeds primarily from our own
review of the record. The district court did not conduct a harmless
error analysis, but remand in this case is unneces-
sary. The undisputed facts disclosed in the record provide an
adequate basis for this Court to determine whether the al-
leged constitutional violations were harmless. We have adopted
this same approach in other cases. Silverson v. O’Leary, 764 F.2d
1208, 1218 (7th Cir. 1985) (independently reviewed the record to
hold counsel’s absence during jury deliberations a harmless
error rather than remand case to district court to conduct
harmless error analysis); Jenkins v. Nelson, 157 F.3d 485, 494-96
(7th Cir. 1998) (holding that this court should exercise its
discretion to consider harmlessness of instructional error even
though issue was not raised before the district court because the
harmlessness of the error was certain and further proceedings
would only be futile).
6                                               No. 04-3112

  In the habeas context, an error is harmless unless it
had a “ ‘substantial and injurious effect or influence in
determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)). Therefore, trial errors are often
found harmless where the record is replete
with overwhelming evidence of the defendant’s guilt.
Neder v. United States, 527 U.S. 1, 18-19 (1999). Such is the
case here. Whitman faced three drug charges: possession of
marijuana, possession of drug paraphernalia, and posses-
sion of cocaine. At trial, Whitman testified that
he possessed the marijuana and paraphernalia found by the
police in his home. Whitman only contested the co-
caine charge. He claimed the cocaine was planted by
persons visiting his home. However, the cocaine was
found by police in a bag Whitman admitted was his. This
bag contained the drug paraphernalia Whitman claimed
to own. Cocaine residue was also found on several differ-
ent items strewn about Whitman’s house. In fact, in closing
arguments, Whitman’s attorney stressed his admissions:
    My client has acknowledged that he possessed stems
    and seeds, and that they have been shown to contain
    [marijuana]. We’re not contesting that, nor has my
    client contested that he had drug paraphernalia. What
    he has contested is that any of the drug paraphernalia
    was for cocaine use. He has acknowledged that he
    has the drug paraphernalia for marijuana use, and he
    has testified that he used marijuana; and he has
    testified very strongly and vigorously as any person can
    that he doesn’t use cocaine, he has no desire to use
    cocaine, and he did not knowingly possess cocaine.
Trial Tr. 108, Jan. 19, 2001.
  To believe Whitman’s version of the facts—that the
cocaine was planted in his home—the jury would have
No. 04-3112                                                7

had to find that Whitman and his story were credible.
During the trial, Whitman lied under oath. Whitman was
asked if he had ever been convicted of a crime. His answer:
“four misdemeanors.” In reality, one of those crimes was
a felony. The prosecution exploited this lie in its closing,
and in doing so likely destroyed Whitman’s credibility. The
jury retired to deliberate knowing that Whitman was a
convicted criminal who lied under oath and admitted to the
other drug charges. These facts were not affected by his
appearance before the jury in identifiable prison clothing.
We are therefore convinced that even if the trial court erred
in failing to acknowledge Whitman’s ambiguous objection to
his attire, such an error was harmless.
  Because Whitman’s appearance before the jury in his
prison clothing did not prejudice the outcome of his trial,
Whitman’s ineffective assistance of counsel claim also fails.
An ineffective assistance of counsel claim is governed
by Strickland v. Washington, 466 U.S. 668 (1984). A suc-
cessful claim under Strickland requires the defendant to
make two showings. First, the defendant must show that
counsel’s performance fell below an objective standard of
reasonableness as determined by prevailing professional
norms. Id. at 687-88. Second, the defendant must show that
the deficient performance of counsel prejudiced his defense.
Id. at 692. Prejudice will be found where there is a reason-
able probability that, but for the deficient performance of
counsel, the outcome of the proceedings would have been
different. Id. at 693-94. The evidence of Whitman’s guilt
was overwhelming, and his attire was not an outcome
determinative factor in the jury’s decision.
  Last, while Whitman’s appearance in prison garb was
harmless in this case, it should be remembered that
requiring a defendant to appear before a jury in prison
clothing can detrimentally impact the outcome of a criminal
trial. Prison clothing can serve as a “constant reminder of
the accused’s condition” and may undermine the fairness of
8                                                No. 04-3112

the proceedings. Estelle, 425 U.S. at 504-05. It would be
well-worth a court’s time and expenses to keep extra suits
at the courthouse for a defendant to wear, should he appear
at trial in his prison-issued jumpsuit. Had the Price County
Court in this case had an extra suit on hand, this lengthy
and protracted litigation would not have been necessary.
Nor would Whitman wonder if the jury convicted him for
some other reason than its finding of factual guilt.


                      III. Conclusion
  For the reasons set forth above, the decision of the district
court is AFFIRMED.

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                    USCA-02-C-0072—1-18-06
