               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 01-10034
                        _____________________


VINCENT EDWARD COOKS,

                                                Petitioner-Appellant,

                               versus

GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION

                                                Respondent-Appellee.

_________________________________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
                       USDC No. 3:96-CV-1380
_________________________________________________________________
                           July 12, 2001

Before JOLLY, DeMOSS, and STEWART Circuit Judges.

PER CURIAM:*

     Vincent Edward Cooks, with the death penalty hanging over his

head, has filed a motion for a certificate of appealability (“COA”)

in this 28 U.S.C. § 2254 habeas proceeding.     He alleges that four

constitutional violations occurred during the proceedings in the

Texas trial court: (1) that he was denied the presumption of

innocence and a fair trial because he was shackled during trial,


     *
      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this opinion should not be published and is not precedent except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.
(2) that he was denied effective assistance of counsel because

counsel failed to make a sufficient record that he was shackled

during trial, (3) that he was denied effective assistance of

counsel because counsel failed to present alibi evidence, and (4)

that   the   in-court   identification   should   therefore   have   been

excluded because pre-trial lineups were impermissibly suggestive.

Because we conclude that Cooks has not made a substantial showing

of the denial of a constitutional right, we affirm the district

court’s denial of his motion for a COA.

                                   I

                                   A

       Cooks was convicted of capital murder and sentenced to death

by the Texas state court for the murder of Gary D. McCarthy

committed in the course of perpetrating a robbery.            The facts

surrounding the murder and Cooks’s subsequent conviction are as

follows.

       McCarthy was an off-duty police officer who worked part-time

as a security guard at Brancatos Grocery in Dallas, Texas.             On

February 26, 1988, he and Mark DeCardenas, the owner of Brancatos

Grocery, went to the bank to withdraw $30,000 in cash, necessary

for the store’s check cashing service.       Upon their return to the

store, DeCardenas noticed two men get out of a blue Plymouth, get

into an Oldsmobile, and drive to the parking lot across from the

grocery.     DeCardenas and McCarthy were approached by the two men,

who attempted to grab the paper bag that contained the money.

                                   2
McCarthy instructed DeCardenas to run into the store, and pushed

him towards the door; DeCardenas dropped the bag of money during

the scuffle.     As one of the robbers was backing away from the

scene, he shot McCarthy, jumped into an Oldsmobile and drove away.

McCarthy shot at the retreating Oldsmobile and shattered the back

windshield.    McCarthy died from the gunshot wounds.

     As the robber’s car left the scene, two police officers

driving in the opposite direction noticed the broken window, and

followed the Oldsmobile.    Although the occupants of the car had

fled by the time the officers caught up to the car, the police

recovered a revolver from the floorboard that was later established

as the murder weapon.

     Earlier, on the morning of the day that the robbery occurred,

police officers had stopped and questioned three men in a blue

Plymouth parked down the street from Brancatos Grocery. When asked

what they were doing, the men responded that they were waiting for

a bus.   The police officers checked the license plate number, but

found nothing out of the ordinary, and went on their way.

     After the murder, police officers traced the license plate

number of the rented blue Plymouth, obtained during the earlier

questioning of the trio. This investigation lead to the arrest of

Tracy Stallworth.     Information from Stallworth then led to the

arrests of Cooks and Tony Ray Harvey.    Harvey later testified at

Cooks’s trial that he, Stallworth and Cooks stole the Oldsmobile

used in the robbery, and that Cooks was the gunman.

                                  3
                                       B

     On March 10, 1988, Cooks was indicted for capital murder for

causing the death of McCarthy while in the course of robbing Mark

DeCardenas. See Tex. Penal Code. Ann. § 19.03(a)(2).                    The jury

returned   a   verdict   of   guilty   on     December   7,   1988.       At    the

punishment hearing, the jury found that Cooks deliberately caused

McCarthy’s death when he shot him, that there is a probability that

Cooks will commit future violent acts that pose a threat to

society, and that Cooks’s conduct was not a reasonable response to

any provocation of the deceased.            The trial court then sentenced

Cooks to death by lethal injection, as mandated by Texas Crim.

Proc. Code. Ann. art. 37.071(b).

     Cooks’s case was automatically appealed to the Texas Court of

Criminal Appeals, which affirmed his conviction and sentence.                   See

Cooks v. State, 844 S.W.2d 697 (Tex. Crim. App. 1992).                  The Court

of Criminal Appeals denied rehearing in January 1993. Cooks then

petitioned     the   United   States       Supreme   Court    for   a    writ    of

certiorari, which was denied on June 28, 1993.                 Cooks filed an

application for a state writ of habeas corpus on April 25, 1995.

The state trial court entered findings of fact and conclusions of

law on February 27, 1996, and the Court of Criminal Appeals denied

habeas relief after determining that the trial court’s findings

were supported by the record.

     After obtaining a stay of execution from the federal district

court on May 20, 1996, Cooks was appointed state habeas counsel to

                                       4
represent him in federal habeas review and filed a petition for

habeas corpus relief in federal court.          The case was referred to a

magistrate judge who recommended a denial of Cooks’s petition for

habeas corpus on November 6, 2000.              On December 1, 2000, the

district court adopted the magistrate’s findings, entered a final

judgment and denied Cooks’s motion for a COA.              Cooks then filed

this motion for a COA on the claims denied by the district court.

                                       II

     Cooks’s application for a federal writ of habeas corpus, filed

on April 23, 1997, is governed by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”).       Lindh v. Murphy, 521 U.S. 320 (1997).

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

denial of a constitutional right.”             28 U.S.C. § 2253(c).      This

substantial showing requires a petitioner to demonstrate that the

issues could have been reasonably resolved differently or that the

issues presented are adequate to deserve encouragement in further

proceedings.   Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,

146 L.Ed.2d 542 (2000). Because the district court denied Cooks’s

application for a writ of habeas corpus on the merits, Cooks “must

demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.”              Id.

     “In   deciding   to   grant   a    COA,   we   view   the   petitioner’s

application through the deferential scheme created by the AEDPA.”




                                       5
Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001).1     Thus, we

defer to a state court’s adjudication of a petitioner’s claims on

the merits unless the state court’s determination 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), or “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,” 28 U.S.C. §

2254(d)(2).      See Wheat v. Johnson, 238 F.3d 357, 360 (5th Cir.

2001). A state court’s decision is contrary to clearly established

federal law when it reaches a legal conclusion that is in direct

opposition to a legal conclusion reached by the Supreme Court or

when, after reviewing a set of materially indistinguishable facts,

the state court makes a determination different from that of the

Supreme Court.   Kutzner, 242 F.3d at 608.   A state court’s decision

is only based on an unreasonable determination of the facts when it

is objectively unreasonable.    Id.

     In his application for a COA, Cooks claims that shackling him

in front of the jury denied him the presumption of innocence and

     1
      We note that the COA standard articulated in § 2253,
requiring the petitioner to make a substantial showing of a
constitutional right, does not seem to incorporate the AEDPA
standard under § 2254, which requires deference to the state habeas
court’s determination. Our precedent, however, requires that “the
determination of whether a COA should issue . . . be made by
viewing the petitioner’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v.
Johnson, 221 F.3d 741, 772 (5th Cir. 2000). See also Dowthitt v.
Johnson, 230 F.3d 733, 740 (5th Cir.2000).

                                  6
his right to a fair trial under the due process clause of the

Fourteenth Amendment.    He also claims that he was denied the

effective assistance of counsel because his attorneys failed to

make a proper record of the shackling.    He further claims that

counsel failed to present an alibi defense. Lastly, he claims that

the pretrial photographic and live line-ups were impermissibly

suggestive, and that the witness’s in court identification of him

was therefore a violation of his due process rights.    The Texas

courts, and the district court, which adopted the magistrate

judge’s report and recommendations, considered and rejected these

claims.

                                A

     Cooks first argues that his Fourteenth Amendment rights to a

presumption of innocence and a fair trial were violated by the

trial court’s decision to shackle him during both voir dire and

trial.    Cooks was shackled by a two foot chain that cuffed his

feet, which was attached to an ankle bracelet that went up his

right leg.    On the first day of voir dire, the defense lawyer

objected to the shackles, noting that there had been no evidence

indicating that Cooks was a security threat.      The prosecution

stated that the jurors would not be able to see the leg restraints

from where they were sitting, that the restraints were covered by

Cooks’s pants, and that a box and briefcase placed in front of

Cooks prevented the jury from seeing the shackles. The trial court

overruled Cooks’s counsel’s objection, and stated that Cooks was

                                7
being shackled at the recommendation of the Dallas County deputy

sheriffs out of an “abundance of prudence and caution.”

     On direct appeal, the Court of Criminal Appeals declined to

assess whether the circumstances were sufficient to justify the

shackling,    concluding   only   that    Cooks   was   not   harmed    by   the

shackles because there was no evidence that the jury actually saw

the restraints.     Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim.

App. 1993).      In state habeas court, Cooks included information

that two jurors were aware that Cooks was restrained during the

trial, but had no evidence that any of the jurors actually saw the

shackles.     One of the jurors believed that Cooks was handcuffed

rather than shackled; the other juror remembered that Cooks needed

assistance to stand, presumably because he was shackled.               In their

affidavits, both jurors stated that they could not directly see the

shackles from the jury box, that they assumed restraints were

standard procedure in murder cases, and that their awareness of the

restraints did not cause them to believe that Cooks was any more

likely to be guilty or innocent.         The state habeas court found the

presence of the shackles harmless, because the shackles were

unobtrusive and the affidavits affirmatively demonstrated that the

jurors were not prejudiced against Cooks by the presence of the

shackles.

     A defendant is presumed innocent and therefore, as a general

rule, should be presented to the jury in the trappings of innocence

during trial.     Thus, the Supreme Court has found that certain

                                     8
practices, such as shackling or gagging a criminal defendant or

having a defendant dress in prison clothes, may pose a threat to

the fairness     of   the    fact-finding            process    because    they    are a

“constant    reminder   of    the    accused’s          condition.”        Estelle    v.

Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

See also    Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89

L.Ed.2d 525 (1986).     These practices therefore “must be subjected

to ‘close judicial scrutiny.’” Id. (citations omitted).                              The

Supreme Court, however, has made clear that trial courts do have

the discretion to use physical restraints when confronted with

“obstreperous defendant[s].” Illinois v. Allen, 397 U.S. 337, 343-

344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).                           Thus, the Supreme

Court, while labeling shackling an inherently prejudicial practice,

has never held that the use of shackles necessarily deprives a

defendant of the right to a fair trial.                    Instead, a trial court

must balance the defendant’s presumption of innocence against “the

court's obligation to protect the court and its processes, and to

attend to the safety and security of those in the courtroom.”

United States v. Nicholson, 846 F.2d 277, 279 (5th Cir. 1988).

Even if the trial court decision’s to allow the defendant to be

shackled    is   erroneous,     it    is       reviewed        for    harmless    error.

Wilkerson   v.   Whitley,     16    F.3d       64,    68   (5th      Cir.1994)    (citing

Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336

(1987)).

     Both the state habeas court and the magistrate judge found

                                           9
that any error in forcing the defendant to remain shackled during

the proceedings was harmless, because precautionary measures taken

by the parties prevented the leg shackles from being visible to the

jury, and there was nothing in the juror’s affidavits to indicate

that the defendant’s restraints prejudiced the jury.            Although the

jurors’ statements that their decisions were not affected by their

perception of restraints are not entitled to significant weight,2

the evidence that the restraints were not visible from the jury box

supports the state court’s determination that the presence of the

shackles   were   harmless.   The       Supreme   Court   has   found   that

restraints and other trappings of prison are prejudicial because

they constantly remind the jury of the accused’s condition; the

Court has never found that a defendant is denied the presumption of

innocence if the jury does not see these trappings, or has limited

exposure to them.    Thus, Cooks has failed to make a substantial

showing that the presence of shackles denied him his constitutional

rights.

                                    B

     Cooks next claims that he was denied the effective assistance

of counsel because (1) his trial counsel failed to make a record to


     2
      The Supreme Court has found that “[e]ven though a practice
may be inherently prejudicial, jurors will not necessarily be fully
conscious of the effect it will have on their attitude toward the
accused.” Holbrook, 475 U.S. at 570. Thus, the statements of the
two jurors who claimed that the sight of restraints did not affect
their decisions do not necessarily mean the restraints were
harmless.

                                10
present the shackling issue on appeal, and (2) his trial counsel

erred in not presenting alibi testimony from Cooks’s brother that

Cooks was in Houston, not Dallas, when the victim was killed.                        The

state habeas courts and the federal magistrate judge denied both of

these ineffective assistance claims.

       To show ineffective assistance of counsel under the Sixth and

Fourteenth Amendments, the accused must satisfy the two pronged

test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Under the first prong, the defendant must show

that   counsel’s    actions      fell     below      an     objective   standard     of

reasonableness.       For      the    lawyer’s       acts    and   omissions    to    be

unreasonable,      they   must        fall     “outside      the   wide      range    of

professionally competent assistance.”                  Id. at 690.        Counsel is

strongly presumed to have rendered adequate assistance. Id. Under

the second prong, the defendant must show that this deficient

performance resulted in actual prejudice to the defendant.                      Id. at

687.     Actual    prejudice         requires    a    reasonable     probability--a

probability sufficient to undermine confidence in the outcome--

that, but for counsel’s errors, the result of the proceeding would

have been different.        Id. at 694.

       As noted above, Cooks’s counsel objected to Cooks’s leg

restraints at the start of jury voir dire.                   Cooks’s trial counsel

did not question the prospective jurors whether they noticed the

restraints because he did not want to unnecessarily draw the

jurors’s    attention     to    the     restraints;         however,    he    did    not

                                          11
photograph the courtroom or request a post-trial hearing.               Cooks

argues that, if his attorney had properly documented the fact that

the jurors saw or could have seen the shackles, he would have been

granted a new trial on direct appeal.

     The state habeas court found that Cooks’s counsel was not

deficient   by   failing   to   make    a   more   detailed   record   of   the

shackling, and that Cooks was not prejudiced by his counsel’s

actions.    The magistrate judge found that Cooks did not establish

a reasonable probability that the Texas Court of Criminal Appeals

would have ruled differently on direct appeal even if counsel had

made a more complete documentary record of the shackling.

     On direct appeal, the Court of Criminal Appeals denied Cooks’s

shackling claim because, using harmless error review, the court

concluded that Cooks was not harmed “absent evidence that the jury

actually saw the shackles.”        Cooks v. State, 844 S.W.2d at 723.

Even if Cooks’s counsel had made a full record of the proceedings,

however, there is no reasonable probability that the Court of

Criminal Appeals would have ruled differently.            The affidavits of

the jurors and the statements of the prosecutor during trial

indicate that the shackles were not visible from the jury box.

Thus, photographs of the courtroom would not have affected the

court’s assessment of the claim.        Although the statements from the

two jurors provide some evidence that at least those two jurors




                                       12
were somewhat aware that Cooks was restrained,3 Texas courts have

found that the fact that jurors catch inadvertent and momentary

glimpses of restraints does not require reversal.   Clark v. State,

717 S.W.2d 910, 919 (Tex.Crim.App. 1986).   Here, where steps were

taken that prevented the visibility of the restraints to the jury,

there is no reasonable probability that the court’s decision would

have been different. In fact, during the state habeas proceedings,

the Court of Criminal Appeals specifically held that shackling the

defendant was harmless error even though there was evidence that

two jurors were aware of restraints.        Cooks has not made a

substantial showing that he was denied the effective assistance of

counsel because his counsel failed to make a complete record of the

shackling.

     Cooks also fails to make a substantial showing that he was

denied the effective assistance of counsel because his counsel

failed to introduce alibi evidence.    At the state habeas level,

Cooks introduced an affidavit from a defense investigator stating

that he had interviewed Cooks’s brother, Timothy Hearne, who said

that Cooks was in Houston, not Dallas, at the time of the murder.

Cooks’s brother also claimed that he was in Dallas at the time of

the trial and was available to testify.     In response, the State

submitted an affidavit from one of Cooks’s trial lawyers.   Cooks’s


     3
      The investigator reported that one juror was aware that Cooks
was shackled because he had difficulty standing up.       The other
juror thought that Cooks was handcuffed, which he was not.

                                13
lawyer said that he had interviewed Hearne, but that Hearne did not

seem interested in the trial and did not arrive at Cooks’s trial as

he was supposed to.   The trial lawyer also noted that he advised

Cooks that the introduction of an alibi defense might result in

extraneous offenses being admitted and that the decision not to

call Hearne was trial strategy supported by Cooks.

     Under Texas rules of evidence, evidence of extraneous acts can

be introduced to rebut an alibi defense.          See Wyatt v. State, 23

S.W.3d 18, 25 (Tex.Crim.App. 2000) (describing Rule 404(b) of the

Texas Rules of Evidence).     At the sentencing phase of the trial,

evidence was introduced suggesting that Cooks was involved in two

very similar robberies, in which people who were returning to

stores from the bank with large sums of money were accosted by an

armed robber demanding the money. Because alibi testimony may have

allowed the State to introduce this testimony at the guilt stage of

the trial, counsel’s decision not to introduce the alibi testimony

(assuming Hearne had been available) was a reasonable tactical

decision, and it therefore falls within the range of practical

choices not to be second-guessed.           Thus, Cooks has not made a

substantial showing that he was denied the effective assistance of

counsel because his counsel failed to introduce alibi evidence.

                                     C

     As a final claim, Cooks argues that pre-trial lineups were

impermissibly   suggestive,    and       that   Frank   Green’s   in-court

identification resulting from them should therefore have been

                                 14
excluded as a violation of due process.            This claim was rejected by

the Texas court on direct appeal, as well as by the district court

below.

       The Supreme Court has held that in the case of an eyewitness

identification    at   trial     that    follows    a    pretrial     photographic

identification, the conviction will only be set aside “if the

photographic     identification         procedure       was     so   impermissibly

suggestive as to give rise to a very substantial likelihood of

misidentification.”      Simmons v. United States, 390 U.S. 377, 384,

88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).               “It is the likelihood of

misidentification      that    violates      the   defendant’s       right   to   due

process.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972).           This concern over misidentification has

resulted in a two part test when considering whether to exclude in-

court identification evidence.            First, we must determine whether

the photo lineup was impermissibly suggestive. Where, as here, the

photographic lineup was not preserved by the state and consequently

not entered into evidence, there is a presumption that it was

impermissibly suggestive.         United States v. Honer, 225 F.3d 549,

553 (5th Cir. 2000).          Second, we must ask whether, based on the

totality of the circumstances, the display posed a substantial

likelihood of irreparable misidentification.                  Simmons, 390 U.S. at

384.     “The admission of testimony concerning a suggestive and

unnecessary identification procedure does not violate due process

so long as the identification possesses sufficient aspects of

                                        15
reliability.”      Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct.

2243, 53 L.Ed.2d 140 (1977). When assessing the reliability of the

identification,      the Supreme Court has instructed us to consider

the following factors: the opportunity of the witness to view the

perpetrator at the time of the crime, the degree of the witness’s

attention, the accuracy of the witness’s prior description of the

criminal,    the   witness’s    level        of    certainty   at    the    time   of

confrontation,     and   the   length    of       time   between    the    crime   and

confrontation.      Biggers, 409 U.S. at 200-201.

     The witness at issue here was Frank Green, the grocery store

manager.    He saw the events occur through the store window.                  He was

approximately 25 feet from the robbery.              He watched the offense for

two to     three   minutes.     Immediately         after    the    offense,   Green

described the offender as being approximately five feet ten inches

tall and weighing 210 to 220 pounds; Cooks is six feet three inches

tall and 250 to 260 pounds. Green later explained this discrepancy

by stating “[w]hen a man is jumping around with a pistol, you can’t

measure his weight down to a point.”                     On the evening of the

offense, Green was shown a photographic lineup.                    Cooks’s picture

was not included in this initial lineup, and Green did not pick

anyone out of lineup as the offender.                    Green testified that he

tentatively picked out Cooks the next day from a second photo

lineup, but did not make a positive identification because he did

not want to pick the wrong person.                  A short time later, Green

identified Cooks out of a live lineup.                      Cooks was the only

                                        16
individual who appeared in more than one of the five to six person

lineups.

       On direct appeal, the Court of Criminal Appeals held that the

trial court did not err in overruling Cooks’s objections to Green’s

in-court identification.      The court found that, even if the lineup

was impermissibly suggestive, Cooks had failed to demonstrate that

Green’s    testimony   was   unreliable   under   the   totality   of   the

circumstances.    The court noted that Green was in close proximity

to and observed the full commission of the offense, that Green

identified Cooks with certainty at trial, and that Green testified

that he would have been able to identify Cooks in the courtroom

without having viewed the pretrial lineups.       Cooks, 844 S.W.2d. at

731.     The magistrate judge found that the state court ruling was

not an unreasonable application of clear Supreme Court precedent.

The magistrate judge also observed that Green was extensively

cross-examined on both the pretrial lineup and his observation of

the crime.

       Cooks argues that Green’s opportunity for observation during

the crime was limited, and occurred while Green was frantically

searching the inside of the store for a gun.            To establish the

unreliability of Green’s testimony, Cooks also points to the

discrepancy between Green’s initial description of the suspect and

the description Green gave after having been shown a photograph of

Cooks.     As the magistrate judge noted, however, Green was cross-

examined on these issues and the jury convicted Cooks in spite of

                                   17
other evidence that tended to undermine the reliability of the

identification. Although Green was the only eyewitness to identify

Cooks out of a live lineup, we cannot say that the state court

unreasonably applied clear Supreme Court precedent or made an

unreasonable   determination   of    fact   by    holding    that   Green’s

identification–-an identification made close in time to the events,

based on observing events from 25 feet away, and testimony that the

witness was confident he would have been able to make even without

the   lineup--was   sufficiently    reliable     to   pass   constitutional

muster.   Cooks therefore has not made a substantial showing that

Green’s in-court identification denied him due process.4

                                   III

      Thus, for the reasons we have stated, we hold that Cooks has

not made a substantial showing of the denial of a constitutional

right on any of his claims, and we affirm the district court’s

denial of his request for a COA.

                                                         A F F I R M E D.




      4
      Although the precise issue is the reliability of eyewitness
testimony, for added measure, we would observe that Cooks was
identified as the gunman by Harvey, his co-defendant, and by Green,
the store manager, and that no claim is made that Cooks did not
participate in the robbery. Thus, we cannot say that Cooks made a
substantial showing that the jury’s and state habeas courts’
determination of fact upon which this conviction for capital murder
rests was “an unreasonable determination of fact,” which would
justify the grant of habeas relief.

                                    18
