                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 99-31243



     MILTON WILLIAMS,

                                       Petitioner-Appellant,

                                  v.

     BURL CAIN, Warden, Louisiana State Penitentiary,

                                       Respondent-Appellee.

                    _______________________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
                           99-CV-676-J
                 _______________________________
                        September 8, 2000

Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Appellant Milton Williams (“Williams”) appeals from the

district court’s dismissal with prejudice of his habeas petition.

Because we find no merit to Williams’s Doyle or Brady claims, nor

to his assertion that the state tried him while shackled and

wearing prison garb, we affirm.

               I.     Factual and Procedural Background

     On the afternoon of October 21, 1993, Williams left his



     *
      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this opinion should not be published and is not precedent except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.
house to attend to a plumbing job.    When he left, his wife,

Karen, and his son, Milton, Jr., were both at home, as was a man

doing tile work in the upstairs bathroom.    He returned home that

night, whereupon he became embroiled in an argument with Karen.

Williams accused Karen of flirting with the tile layer, and she

protested her innocence.    Their altercation carried them upstairs

to their bedroom, where Williams’s .357 Smith & Wesson sat on the

night stand, placed there earlier in the day by Milton, Jr., who

had found the gun lying on the family entertainment center

uncocked.    From his vantage point on the couch in the den next to

his parents’ bedroom, Milton, Jr. saw his mother, but not his

father, during the fight.    Milton, Jr. heard Williams tell Karen

to leave him alone “before I have to hurt you.”    About five

minutes later, after Karen refused to desist her protestations,

Williams shot Karen in the face, near her right eye.

       Milton, Jr. watched his mother fall to the floor.   He raced

to the bedroom, where he found Williams crying and the gun on the

floor.    Williams told Milton, Jr. that he had not intended to

shoot Karen; he complained that the gun had been in his hand and

just went off.    Milton, Jr. picked up the phone and dialed 911;

Williams spoke to the operator and begged her not to let his wife

die.

       Officers Euclid Talley (“Talley”) and Lawrence Zapata

(“Zapata”) responded to Williams’s 911 call.    After a preliminary

investigation revealed that Karen was still breathing, Officer

                                  2
Talley handcuffed Williams and informed him that he was under

arrest for aggravated battery.    Officer Talley advised Williams

of his Miranda rights and then asked him what had happened.

Williams related that he had accidentally shot his wife.   He

claimed that he and Karen were not arguing, that they had been

getting ready for bed when he placed the gun on the night stand,

and it accidentally discharged.

     Officer Talley then left to attend to Karen, while Officer

Zapata guarded Williams, who wanted to go upstairs to see Karen

and was becoming agitated.   Officer Zapata chided Williams to

calm down, reminded him that he was under arrest for aggravated

battery, and read him his Miranda rights again.    Saying that he

understood his rights, Williams confessed to Officer Zapata that

he and Karen had been arguing.    Williams admitted that he wanted

to scare his wife, so he picked up the gun and slammed it down on

a piece of furniture, at which point it fired accidentally.

     Officers Donald Clogher (“Clogher”) and Meunier (“Meunier”)

arrived after Officers Talley and Zapata.   Officer Clogher

interviewed Williams to prepare the incident report.   Williams

had already received Miranda warnings.    When Officer Clogher

inquired about Williams’s name, address, date of birth, and other

vital statistics, Williams told him that he and Karen had been

preparing for bed when the gun fell from the night stand onto the

floor and discharged.

     When Karen’s death appeared inevitable, New Orleans Homicide

                                  3
Detective Anthony Small (“Small”) arrived at Williams’s residence

to direct the investigation and transport Williams to the

homicide office.   Detective Small alerted Williams that he was

under arrest for Karen’s murder and read him his Miranda rights.

At this point, Williams chose not to waive his rights and

remained silent.

     At the trial, Officer Kenneth Leary (“Officer Leary”)

testified that Williams’s .357 Smith & Wesson had an internal

block covering the firing pin which could only be released by

pulling the trigger.   Officer Leary therefore concluded that, had

the gun fallen or been dropped, it would not have discharged.

Officer Leary also stated that, based on the stippling around the

gun-shot wound, the gun was between 3 and 3½ feet from Karen when

Williams fired it.   Finally, Officer Leary affirmed that the gun,

when cocked, had a 5 lb. trigger pull, but the uncocked gun had a

trigger pull of 11½ lbs.

     In addition to Officer Leary’s testimony, Sheila Craig,

Karen’s sister, Kimberly Johnson, Karen’s daughter and Williams’s

step-daughter, Cinnamon Billy Smith, an employee at the

Metropolitan Battered Women’s Program, and Linda Brion, Karen’s

friend, all testified that Williams had a prolonged history of

physically abusing Karen, including two incidents when Williams

hit Karen with a baseball bat, two occasions when he beat her

while she was pregnant, and numerous accounts of bruises, black

eyes, swollen lips, and threats against Karen’s life.

                                 4
     The jury found Williams guilty of second degree murder, and

the judge sentenced Williams to life in prison.    After the

rejection of his direct appeals and state petitions for post-

conviction relief, Williams filed a federal habeas petition in

March, 1999.   The magistrate issued a Report and Recommendation,

advising dismissal with prejudice of the petition, and the

district court adopted the Report and Recommendation, entering

judgment against Williams on October 26, 1999.

     Williams requested a certificate of appealability, which the

district court granted as to issues 5 (Doyle claim), 7 (Brady

violation), and 9 (shackles and prison garb).

                        II.       Doyle Claim

     Williams claims that the following exchange during the

prosecution’s direct examination of Detective Small constitutes a

Doyle violation that necessitates reversal of his conviction:

     Q.   Did you take custody of the defendant Milton Williams?
     A.   Yes, upon leaving the scene.
     Q.   And you ordered him placed under arrest?
     A.   Yes.
     Q.   Did he make any statement to you?
     A.   No, sir, he didn’t make any statements to me.
     Q.   Did he refuse to make a statement and waive his rights?
     A.   Yes, upon arriving at the homicide office he was
          formally advised of his charges and constitutional
          rights as per the Miranda warning. Mr. Williams
          refused to waive his rights and give a statement.

     Williams’s counsel objected at this point in the questioning

and moved for a mistrial.     The district court denied Williams’s

motion and refused to give a limiting instruction to the jury.



                                   5
     Pursuant to Doyle v. Ohio, 426 U.S. 610 (1976), “the use for

impeachment purposes of [a defendant’s] silence, at the time of

arrest and after receiving Miranda warnings, violate[s] the Due

Process Clause of the Fourteenth Amendment.”       Id. at 619

(footnote omitted).    This rule finds its rationale in the fact

that “every post-arrest silence is insolubly ambiguous because of

[the Miranda warnings.]”    Id. at 617 (footnote omitted).      Because

the Miranda warnings implicitly assure an arrestee that he will

not be penalized for his silence, “it would be fundamentally

unfair and a deprivation of due process to allow the arrested

person’s silence to be used to impeach an explanation

subsequently offered at trial.”       Id. at 618 (footnote omitted).

     Although “virtually any description of a defendant’s silence

following arrest and a Miranda warning will constitute a Doyle

violation,” United States v. Shaw, 701 F.2d 367, 382 (5th Cir.

1983), Doyle violations are susceptible to harmless error

analysis.   See Chapman v. State of California, 386 U.S. 18, 22-24

(1967).   “[B]efore a federal constitutional error can be held

harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.”       Id. at 24.   To ascertain

whether a Doyle error is harmless beyond a reasonable doubt, a

reviewing court must inquire whether the error “‘had a

substantial and injurious effect or influence in determining the

jury’s verdict.’”     Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 766 (1946)).

                                  6
     In this Circuit, we have long used the three categories set

forth in Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977),

to guide our harmless-beyond-a-reasonable-doubt determination:

     [First,] [w]hen the prosecution uses defendant’s post-
     arrest silence to impeach an exculpatory story offered
     by defendant at trial and the prosecution directly
     links the implausibility of the exculpatory story to
     the defendant’s ostensibly inconsistent act of
     remaining silent, reversible error results even if the
     story is transparently frivolous.
          [Second,] [w]hen the prosecutor does not directly
     tie the fact of the defendant’s silence to his
     exculpatory story, i.e., when the prosecutor elicits
     that fact on direct examination and refrains from
     commenting on it or adverting to it again, and the jury
     is never told that such silence can be used for
     impeachment purposes, reversible error results if the
     exculpatory story is not totally implausible or the
     indicia of guilt not overwhelming.
          [Third,] [w]hen there is but a single reference at
     trial to the fact of defendant’s silence, the reference
     is neither repeated nor linked with defendant’s
     exculpatory story, and the exculpatory story is
     transparently frivolous and evidence of guilt is
     otherwise overwhelming, the reference to the
     defendant’s silence constitutes harmless error.

     Id. at 1249-50 (citations and footnote omitted).

     The context of the comment on the defendant’s silence also

influences our determination of error.   Where the reference

occurs before the defendant has offered an exculpatory story,

“the evidence [can] have . . . only a minor effect as slight

substantive evidence or remote impeachment-in-advance.”   United

States v. Carter, 953 F.2d 1449, 1463 (5th Cir. 1992).

     Applying these strictures, we hold that Detective Small’s

response to the prosecution’s questions about whether Williams

made a statement did violate Williams’s due process rights under

                                7
Doyle, but that the error was harmless beyond a reasonable doubt.

The prosecution made only a single reference to Williams’s

silence, which reference occurred on the direct examination of

Detective Small, and the prosecutor failed to link the silence to

Williams’s exculpatory story, which was yet to be offered.     As

such, the Doyle violation falls beyond the purview of the first

Chapman category.   Whether it falls within the scope of the

second or third Chapman categories depends on whether the

exculpatory story is “totally implausible” or whether the indicia

of guilt is “overwhelming.”

     Williams had long caused serious bodily injury to Karen.       He

had repeatedly made threats on her life.   Just before he shot

Karen, Milton, Jr. heard Williams tell Karen that he would “have

to hurt [her]” if she did not stop talking.   Williams shot Karen

in the face while standing approximately 3 to 3½ feet away from

her, using a gun that had been uncocked earlier in the day when

Milton, Jr. placed it on the night stand, and which would not

have discharged accidentally when dropped because it had an

internal block covering the firing pin.    Williams’s .357 Smith &

Wesson had a 5 lb. trigger pull when cocked, and an 11½ lb.

trigger pull when uncocked.   In other words, to have shot Karen,

Williams either had to cock the gun and pull the trigger, or pull

the trigger with considerable effort.   After he shot Karen,

Williams told four different versions of the event to the police

and Milton, Jr., all of which involved the gun firing without him

                                 8
having pulled the trigger.

     In these circumstances, Williams’s multiple versions of the

shooting are transparently frivolous.   Though he consistently

maintained that the shooting was an accident, he never

consistently accounted for how it could have mistakenly happened.

All of his versions of the story require the gun to fire without

his having pulled the trigger, an event that could not have

occurred absent a malfunction of the gun’s internal block, a

scenario for which Williams offered no proof.

     Moreover, the evidence at trial presented overwhelming

indicia of Williams’s guilt.   Second degree murder under

Louisiana law requires the specific intent to kill or inflict

great bodily harm.   La. Rev. Stat. Ann. § 14:30.1(A)(1).

Williams had in the past beaten Karen with a baseball bat and

inflicted injuries while she was pregnant.    He threatened to kill

her many times.   Just before he shot her, he told her he would

“have to hurt [her].”   He stood within 3 to 3½ feet of her,

pointing a gun at her face, and he pulled the trigger.    This

evidence constitutes overwhelming indicia of his intent to

inflict serious bodily injury.

     However, even were Williams’s exculpatory story not

transparently frivolous or were the indicia of Williams’s guilt

not overwhelming, the Doyle violation would still be harmless.

After the shooting, Officers Talley and Zapata and Detective

Small all administered Miranda warnings.     Williams nevertheless

                                 9
spoke freely to Officers Talley, Zapata, and Clogher.    Although

Williams did refuse to waive his rights and make a statement to

Detective Small, the prosecution could hardly argue successfully

that Williams’s silence with Detective Small somehow contradicts

his exculpatory story at trial, for the simple reason that

Williams asserted his exculpatory story—namely, that the shooting

was an accident—to Officers Talley, Zapata, and Clogher

immediately after the shooting.

     For the aforestated reasons, we find the Doyle violation

harmless beyond a reasonable doubt.



                       III.       Brady Claim

     Williams complains that the state suppressed Milton, Jr.’s

interview with the police, conducted on the night of the

shooting.   In it, Milton, Jr. states:

     This as [sic] best as I can remember. I was comin’ in
     to study with my mom. And my dad was comin’ in fussin’
     because he was mad. They was havin’ an argument about
     somethin’. And then he, he had went in the bedroom, in
     the bedroom, got ready for bed. While he was puttin’
     away the gun, she was also fussin’ back, sayin’ that
     she wasn’t doin’ what he said. But [pause] he, he had
     the gun and the gun went off [pause] by mistake and
     then my mama had fell down on the floor.

     Williams avers that he could have used this statement of

Milton, Jr.’s to impeach his testimony at trial, where Milton,

Jr. testified that, after the shooting, Williams told him the

shooting had been an accident.    This statement to the police,



                                  10
Williams contends, indicates that Milton, Jr. independently

concluded that the shooting was an accident and did not merely

rely on Williams’s characterization of it as such.

     “[S]uppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.”    Brady v. State of

Maryland, 373 U.S. 83, 87 (1963).   “To establish a Brady claim, a

habeas petitioner must demonstrate that (1) the prosecution

suppressed evidence, (2) the evidence was favorable to the

petitioner, and (3) the evidence was material.”    Little v.

Johnson, 162 F.3d 855, 861 (5th Cir. 1998).    “[F]avorable

evidence is material, and constitutional error results from its

suppression by the government, ‘if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’” Kyles

v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)).

     The question is not whether the defendant would more
     likely than not have received a different verdict with
     the evidence, but whether in its absence he received a
     fair trial, understood as a trial resulting in a
     verdict worthy of confidence. A “reasonable
     probability” of a different result is accordingly shown
     when the government’s evidentiary suppression
     “undermines confidence in the outcome of the trial.”

     Id. at 434 (quoting Bagley, 473 U.S. at 678).

     Williams’s Brady claim must be rejected because it fails all


                               11
three requirements of a Brady violation.    First, the prosecution

did not suppress Milton, Jr.’s interview.    Williams was aware of

both the existence and contents of Milton, Jr.’s statement to the

police the night of the shooting because Williams’s counsel

cross-examined Milton, Jr. regarding it.    Significantly,

Williams’s counsel chose not to attempt to impeach Milton, Jr.

with the above quoted passage.

     Williams’s counsel’s strategic choice in this regard is

likely a function of the fact that the statement fails the second

prong of the Brady test: Milton, Jr.’s interview is simply not

favorable to Williams.   Had Williams sought to impeach Milton,

Jr. with the above quoted statement, the prosecutor would have

pointed to the following exchange occurring later in the

interview:

     Q.   You, you said that your father said it was a mistake
          that he shot your mother?
     A.   Yes.
     Q.   But you couldn’t see if it was a mistake or not?
     A.   No. I couldn’t.

     In short, Milton, Jr.’s statement to the police is wholly

consistent with his testimony at trial: his father had told him

that the shooting was an accident, and he had no independent

basis for assessing the veracity of his father’s account.

     Finally, Milton, Jr.’s statement is not material.    No

reasonable probability exists that, had Milton, Jr.’s statement

been disclosed to Williams, that a different outcome would have

ensued.   Milton, Jr.’s interview with the police in no way

                                 12
undermines confidence in the verdict against Williams.    Even had

Williams not been aware of Milton, Jr.’s statement and its

contents, the statement is not favorable to Williams and merely

reiterates Milton, Jr.’s testimony at trial.    The jury’s decision

would have been unchanged had the statement been admitted into

evidence.

     Therefore, we must reject Williams’s Brady claim as

meritless.

       IV.       Standing Trial in Shackles and Prison Garb

     Williams alleges that the state tried him in prison garb,

with his legs shackled.    He claims this sent a message to the

jury that the he was dangerous and an escape risk, and denied him

the full benefit of the presumption of innocence.

     “[T]he state may not compel an accused to appear before the

jury in prison garb.”     United States v. Nicholson, 846 F.2d 277,

278 (5th Cir. 1988) (citing Estelle v. Williams, 425 U.S. 501

(1976)).    Similarly, shackling “pose[s] a threat to the fact-

finding process and [must] . . . be closely scrutinized.”     Id.

(citing Holbrook v. Flynn, 475 U.S. 560 (1986)).

     Two problems exist with Williams’s claim.    First, Milton,

Jr. identified Williams at trial as “that man in the white

shirt,” an identification that is inconsistent with Williams’s

claim that he stood trial in that mainstay of prison fashion, the

orange jumpsuit.    Second, Williams made no objection to his being



                                  13
forced to wear prison garb and leg irons at trial, a fact that

led the district court to conclude that Williams was not actually

so dressed.   Inasmuch as the trial record is devoid of any

indication that Williams was tried in prison garb and reflects

the contrary, we conclude that Williams has not carried his

burden of showing a violation of his asserted constitutional

right.

     For the foregoing reasons, the judgment of the district

court dismissing the habeas claims is

     AFFIRMED.




                                14
