                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                       November 18, 2004
                                  FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk

                                           No. 03-41487




LONNIE WAYNE PURSLEY,
                                                                                Petitioner-Appellant,

                                               versus

DOUG DRETKE, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                                              Respondent-Appellee.



                           Appeal from the United States District Court
                                for the Eastern District of Texas,
                                     (C.A. No. 9:01-CV-211)



Before SMITH, DEMOSS and, STEWART, Circuit Judges.

PER CURIAM:*

       The petitioner, Lonnie Pursley (“Pursley”), appeals from the district court’s denial of his

petition for habeas corpus and subsequent application for certificate of appealability (“COA”).

Pursley’s application for COA is DENIED.




       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                      FACTUAL AND PROCEDURAL BACKGROUND

       On January 14, 1999, Lonnie Wayne Pursley was convicted of capital murder for the death

of Robert Earl Cook (“Cook”). The evidence at trial established that on the night of March 28, 1997,

Cook left work and drove down Highway 59 towards his trailer home near Livingston, Texas. The

evidence further establishes that Cook was on Highway 59, probably at about the same time that

Pursley was walking down that highway, after leaving from his in-law’s house on foot following an

argument with his wife. Cook’s niece and next-door neighbor, Sheila Dupree, testified that later that

night she observed a large man smoking a cigarette in the doorway of Cook’s trailer home. Dupree

stated that Cook sat inside with an emotionless expression on his face and that she could tell from

looking at Cook that something was wrong. The following day, March 29, Dupree noticed that the

gate on Cook’s property was not shut properly and that Cook’s car was gone. Although Cook had

plans to spend time with his mother that day, he never showed up. When Cook still had not returned

home by the evening of March 30, his mother contacted the police, who began searching for Cook

the next day. Upon learning that Cook was missing, Dupree told the police about the man that she

had seen standing in Cook’s doorway.

       Meanwhile, several of Pursley’s friends and relatives saw Pursley driving a turquoise car

matching the description of Cook’s vehicle on the morning of March 29 and the following day. At

least three of these witnesses noticed that the vehicle had blood on the inside and outside of it, and

that Pursley had blood on his clothes. At least two witnesses later testified that Pursley had admitted

to them that he had beaten someone and had left the victim to choke on his own blood. Pursley’s

cousin, Richard Winfrey, testified that on March 30, Pursley told him that he was pretty sure he had

beaten someone to death in his car. Pursley told Winfrey that he had hidden the victim’s car in some



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woods located off of a dirt road and asked him for fake identification so that he could leave the

country.

        On April 6, 1997, a passer-by discovered Cook’s decomposing body lying face down in a

wooded area at the end of a dead-end dirt road, approximately 2.5 miles from Cook’s home. Trauma

to the body indicated that Cook had been pummeled brutally in the chest and abdomen with t e
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assailant’s hands, feet, or with some other unknown object. On April 15, 1997, the police discovered

Cook’s car abandoned in a wooded area. There was a large amount of blood spattered throughout

the vehicle.1

        Pursley was arrested and charged by indictment for the murder and robbery of Cook. On

January 14, 1997, the jury found Pursley guilty, and later answered Texas’ capital murder special

issues in a manner that required the trial court to sentence Pursley to death. Pursley’s conviction and

sentence were appealed automatically to the Texas Co urt of Criminal Appeals, which affirmed on

January 31, 2001, and denied rehearing on March 28, 2001. Pursley did not file a petition for writ

of certiorari to the U.S. Supreme Court. On July 31, 2001, Pursley filed a state application for post-

conviction relief, which the Court of Criminal Appeals dismissed based on its determination that the

trial court’s conclusions were supported by the record. Ex Parte Pursley, No. 49, 634–01, slip. op.

at 2 (Tx. Crim. App. June 27, 2001). Pursley filed a motion requesting that the Texas Court of

Criminal Appeals reconsider its order dismissing his state habeas application. The Court of Criminal

Appeals denied this request and the trial court set an execution date. On September 12, 2001, this

Court granted Pursley’s motion to stay his execution.

        On June 27, 2002, Pursley filed his § 2254 petition for writ of habeas corpus in the federal


        1
         The only DNA evidence linking Pursley to the crime was on a cigarette butt found in the
ashtray of the victim’s vehicle eighteen months after the car was discovered by the police.

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district court. The district court rejected Pursley’s four assignments of error and declined to grant

Pursley’s request for a COA.

       Pursley now seeks a COA from this Court on the following claims of error: (1) whether the

district court erred in concluding that Pursley was not denied his Eighth Amendment and due process

rights to a fair trial when victim impact evidence was presented by the state during the guilt-innocence

phase; and (2) whether the district court erred in concluding that Pursley was not denied his federal

constitutional rights to a fair trial and a presumption of innocence when the trial court ordered him

to appear during voir dire in shackles and handcuffs , and further compounded the error when the trial

court excluded him from being present during individual voir dire.

                                           DISCUSSION

       Pursley’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA requires that

Pursley obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. §

2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478 (2000). Thus, “until a COA has been

issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas

petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 326 (2003).

       To obtain a COA, the petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336; Slack, 529 U.S. at

483. More specifically, the petitioner must demonstrate that “reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 537

U.S. at 336 (quoting Slack, 529 U.S. at 484).

       In Miller-El, the Supreme Court instructed that “a COA ruling is not the

                                                   4
occasion for a ruling on the merits of petitioner’s claim[.]” Id. at 331. Instead, this Court’s

determination must be based on “an overview of the claims in the habeas petition and a general

assessment of their merits.” Id. at 336. “This threshold inquiry does not require full consideration of

the factual or legal bases adduced in support of the claims.” Id. This Court does not have jurisdiction

to justify its denial of a COA based on an adjudicat ion of the actual merits of the claims. Id.

Accordingly, this Court cannot deny an “application for a COA merely because [it believes] the

applicant will not demonstrate an entitlement to relief.” Id. “[A] claim can be debatable even though

every jurist of reason might agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail.” Id.

I.     Victim impact testimony.

       Pursley first seeks a COA based on his claim that the trial court’s admission

of victim impact testimony during the guilt-innocence phase of his trial violated his Eighth and

Fourteenth Amendment rights. Specifically, Pursley argues that he was denied his due process right

to a fair trial when the state questioned witness Sechrest Godfrey regarding an evening when Cook

stopped on the road to help her change a flat tire. Pursley’s counsel objected to the testimony,

asserting that the testimony “had the victim changing a tire on someone’s car for just the purpose of

being a nice guy and doesn’t have any sense of relevance.” The prosecution countered that the

evidence was relevant to show that Cook stopped on the road to assist strangers, and that this fact

made it more likely that Cook picked up Pursley on the side of the road. The state trial court agreed,

and overruled Pursley’s objection.

       On direct appeal, Pursley contended that the trial court’s admission of Godfrey’s testimony

violated Texas Rule of Evidence 404 (a) (2), which provides in pertinent part that “[e]vidence of a

person’s character or a trait of his character is not admissible for the purpose of proving action in

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conformity therewith on a particular occasion.” Pursley also argued that the “true” purpose for which

the prosecution offered this testimony was to show Cook’s good character in order to make Pursley

comparatively more “death worthy.” The Texas Court of Criminal Appeals denied relief, concluding

that the prosecution did not offer this testimony to establish Cook’s good character, but rather

“elicited the testimony to bolster the State’s theory that the victim offered [Pursley], an apparent

stranger, a ride on the night of the murder.” The Court of Criminal Appeals also concluded that “the

trial court could have admitted the testimony to show the victim’s habit or routine of stopping and

offering assistance to strangers on the highway.”

        On federal habeas review, the district court concluded that the Court of Criminal Appeals’

decision that the testimony constituted admissible Rule 406 “habit” evidence, rather than victim

impact evidence, was not “unreasonable.” The district court alternatively concluded that even

assuming the testimony at issue constituted victim impact evidence, the admission of that evidence

did not violate Cook’s Eighth or Fourteenth Amendment rights. Although finding that the evidence

was inadmissible as victim impact evidence, we nonetheless agree with the district court’s conclusion

that admission of the evidence did not violate Cook’s Eighth or Fourteenth Amendment rights.

        As an initial matter, contrary to the views of the Court of Criminal Appeals and the district

court, the record shows that Godfrey’s testimony cannot be deemed evidence of habit pursuant to

Texas Rule of Evidence 406. Under both Texas’ evidentiary rules and the Federal Rules of Evidence,

“habit” refers to a specific reaction to a specific set of stimuli that is reflexive, repeated, and invariable

in nature. By contrast, as indicated above, Godfrey’s testimony referred to one instance involving

operative facts that are dissimilar from the action which the prosecution sought to establish -- namely,

that Cook stopped and picked up a hitchhiker on the night he was murdered. Nonetheless, “in

reviewing state court evidentiary rulings, the federal habeas court's role ‘is limited to determining

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whether a trial judge’s error is so extreme that it constituted denial of fundamental fairness” under

the Due Process Clause’” of the Fourteenth Amendment. Castillo v. Johnson, 141 F.3d 218, 222,

224 (5th Cir. 1998) (instructing that “[f]ederal habeas corpus review is limited to errors of

constitutional dimension, and federal courts do not sit to review the mere admissibility of evidence

under state law”).

       Similarly, as the district court correctly pointed out, even assuming that Godfrey’s testimony

did constitute victim impact evidence, the admission of such evidence does not violate the Fourteenth

Amendment unless the evidence introduced “is so unduly prejudicial that it renders the trial

fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 824 (1991) (recognizing that “[i]n the

majority of cases, . . . victim impact evidence serves entirely legitimate purposes”).2 Accordingly,

regardless of whether the testimony at issue is properly categorized as character, habit, or victim

impact evidence, the same analysis applies in determining whether Pursley is entitled to habeas relief

on this claim.

       In this case, the record indicates that Cook was brutally murdered at the hands of a stranger;

that the killer had spent some time with Cook in his home on the night of the murder, and that he later

killed Cook in his own car before leaving the body in a wooded area. The record also indicates that

at about the same time that Cook left work and drove down Highway 59, Pursley was most likely

walking down the same road. The State’s theory was that Cook saw Pursley walking alongside the

road and stopped his car to offer Pursley a ride. Because the average person probably would not pick

up a hitchhiker at night, the State sought to elicit testimony that it would not be unusual for Cook to


       2
         Although Payne considered the use of victim impact testimony during the penalty phase of
a capital case, this Court also adheres to Payne’s fundamental fairness standard in cases involving a
challenge to victim impact evidence introduced during the guilt-innocence phase. See Castillo, 141
F.3d at 223-24.

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do so. Cook’s sister, his mother, and a friend of Cook all testified that they knew that Cook would

stop and help people on the road or offer them rides. Defense counsel did not object to this

testimony, and in fact, asked certain witnesses whether they knew if Cook ever picked up hitchhikers.

Given the brutality of the murder and the fact that similar testimony of other witnesses (offered

without objection) indicated that Cook was known to help people on the highway, we find that

Godfrey’s testimony was merely cumulative of other evidence and did not “inflame [jurors’] passions

more than did the facts of the crime” so as to deny Pursley a fundamentally fair trial. See Payne, 501

U.S. at 832 (O’Connor, J., concurring). Under these circumstances, reasonable jurists could not

debate or find wrong the district court’s conclusion that the admission of Godfrey’s testimony did not

violate Pursley’s Eighth or Fourteenth amendment rights.

II.     Physical restraints and exclusion from individual voir dire.

        Pursley next seeks a COA based on his claim that the district court erred in concluding that

the state trial court’s order that Pursley be restrained in shackles and handcuffs during voir dire, and

the trial court’s exclusion of Pursley from individual voir dire, did not deny Pursley his constitutional

rights to a fair trial and a presumption of innocence. This claim is of no avail.

        “The presumption of innocence, although not articulated in the Constitution, is a basic

component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503

(1976); accord, Chavez v. Cockrell, 310 F.3d 805, 808 (5th Cir. 2002). As the Supreme Court and

this Court have recognized, “[t]he physical appearance of a defendant while in the presence of the jury

may adversely affect the presumption of innocence.” Chavez, 310 F.3d at 808 (citing Estelle, 425

U.S. at 504 (noting that a defendant's appearance before the jury may “affect a juror's judgment"

because prison clothing serves as a “constant reminder of the accused's condition”)). Nonetheless,


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courts “have an obligation ‘to protect the court and its processes, and to attend to the safety and

security of those in the courtroom.’” Id. at 808-809 (citing United States v. Nicholson, 846 F.2d

277, 279 (5th Cir. 1988)). Accordingly, the Supreme Court has upheld the binding and gagging of

an “obstreperous defendant” when necessary to maintain courtroom order. Illinois v. Allen, 397 U.S.

337, 343-44 (1970), and this Court has likewise held that a defendant may be shackled and/or

handcuffed to prevent escape, to preserve the dignity of the trial, and to secure the safety of its

participants.” Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir. 1994) (upholding use of shackles in

presence of jury); Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir. 1994) (upholding use of handcuffs

in presence of jury). “The use of such restraints, however, is subject to close judicial scrutiny.”

Chavez, 310 F.3d at 808 (citing Holbrook v. Flynn, 475 U.S. 560, 568 (1986)). Moreover, to be

permissible, the use of restraints “must further a legitimate interest of the state.” Id.; see, e.g.,

Holbrooke, 475 U.S. at 571-72 (ruling that presence of four uniformed state troopers in courtroom

during defendant’s trial was constitutionally permissible where their deployment was “intimately

related to the State's legitimate interest in maintaining custody during the proceedings”); cf. Estelle,

425 U.S. at 505 (concluding jurors’ exposure to defendant in prison clothing is prejudicial when it

furthers no “essential state policy”).

        In this case, Pursley has not shown that reasonable jurists could debate whether the state

courts erred in concluding that the use of handcuffs and shackles or his exclusion from the courtroom

during individual voir dire violated his constitutional rights on the facts presented. As the State points

out, in this case the state trial court specifically determined that if Pursley were not shackled during

voir dire, he would present a danger to himself and others in the courtroom. The trial court made this

determination following a hearing that was convened to consider the State’s motion requesting that


                                                    9
the defendant be shackled for the duration of the trial because it had received information that Pursley

intended to obtain a weapon and attack one of the prosecutors. At the hearing, the State introduced

the statements of three witnesses: inmates Kimberley Pace and Felton Adkison, and Investigator

Frank Shipley. The testimony revealed that Pursley attempted to have Pace retrieve a razor blade so

that he could “cut the DA’s throat” to ensure that he got the death penalty. The State also introduced

letters between Pace and Adkison that discussed Pursley’s intentions. Investigator Shipley testified

that a razor blade was found secreted in the location Pace had described, corroborating Pace’s

statements. Finally, Pace also testified that Pursley had requested that Pace retrieve a knife for him

from the courthouse during one of his court appearances. Based on this evidence that Pursley posed

a legitimate risk to the safety of himself and others in court, we find that it was within the state trial

court’s discretion to restrain Pursley. See Chavez, 310 F.3d at 809 (concluding that visibly

restraining the defendant with a stun belt was within the state trial court’s discretion where the

defendant posed a legitimate flight risk); Marquez, 11 F.3d at 1244 (noting state trial judge has

discretion to order restraints when necessary).

        Importantly, however, Pursley never appeared before the jury in shackles and handcuffs

during voir dire. The record indicates that prior to voir dire, Pursley was taken back to jail, where

he was permitted to change into his prisoner uniform. When it was time to return to the courthouse,

however, Pursley refused to change back into his civilian clothes. At the request of defense counsel,

the trial court agreed to allow Pursley to view the voir dire from a holding cell in the courthouse via

closed-circuit TV. Pursley was given the choice between attending jury selection in his civilian

clothes or watching the selection via closed circuit TV, and Pursley opted to view the jury selection

on TV. At the conclusion of each prospective juror’s individual voir dire, defense counsel was


                                                   10
permitted to consult with Pursley. Moreover, at the start of each day of individual voir

dire, defense counsel asked Pursley whether he wanted to wear his civilian clothing and attend the

jury selection, or remain in his jail-issued clothing in the holding cell. Pursley chose to remain in the

holding cell throughout the jury selection process.

        The crux of Pursley’s argument, therefore, is that the state trial court failed to use the “least

restrictive means” necessary to ensure the safety of the trial participants. As the district court

correctly pointed out, “it is not a question of whether, looking back, lesser restraints might have been

adequate, although that is relevant. Rather, it is a question of whether it was reasonable at the time

to conclude that the restraint was necessary.” Marquez, 11 F.3d at 1244. As stated above, we

believe it was reasonable at the time for the state trial court to conclude that the restraint was

necessary. Moreover, the state trial court had taken steps to ensure that the jurors would not see

Pursley in shackles to eliminate any prejudicial effect the restraints might otherwise have had on the

jury. Immediately following the hearing on the restraints, floor length black skirts were placed around

the counsel tables for the defense and the prosecution. Pursley was to be brought into the courtroom

and seated between his attorneys at counsel table before the jury panel entered the courtroom, and

was to exit the courtroom after the jury had left. On federal habeas review, the district court found

that had Pursley been present and restrained during individual voir dire, the skirting of the tables and

the po sitioning of Pursley between counsel would have minimized the chance that the jury panel

would have seen him. Because the state trial court could have permitted the use of visible restraints

at trial, Pursley has not shown that reasonable jurists could debate whether the state courts erred in

concluding, under these facts, that he had not been denied his constitutional rights to a fair trial and

a presumption of innocence. See Chavez, 310 F.3d at 809. Accordingly, the state trial judge’s


                                                   11
actions “survive close scrutiny.” See id. (citing Holbrook, 475 U.S. at 568).

                                          CONCLUSION

       Because Pursley has not made a substantial showing that he was been denied a constitutional

right, or that reasonable jurists could debate whether his petition for habeas corpus should have been

resolved differently, his request for a COA is DENIED; the order of the district court denying

Pursley’s petition for habeas corpus is hereby AFFIRMED.




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