* Circuit Judge of the Eleventh Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 92-3319

_______________

ROBERT WILKERSON,

Petitioner-Appellant,

VERSUS

JOHN P. WHITLEY,

Warden, Louisiana State Penetentiary,

and

RICHARD P. IEYOUB,

Attorney General, State of Louisiana,

Respondents-Appellees.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

_________________________

(January 31, 1994)

Before HENDERSON, * SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robe rt Wilkerson was convicted of second-degree murder in

1973. That conviction was overturned by the Louisiana Supreme

Court because Wilkerson was shackled and gagged during trial. He

was retried and again convicted and sentenced to life imprisonment

in 1975. Fourteen years later, he filed for post-conviction relief1 At the time of Wilkerson's trial, the state constitution provided that

"no woman shall be drawn for jury service unless she have previously filed

with the clerk of the District Court a written declaration of her desire to be

subject to such service." L A . C ONST. art. VII, § 41 (repealed effective Jan. 1,

1975).

2 in state court, claiming that several constitutional violations

occurred at his second trial. The trial court denied relief, and

the Louisiana Supreme Court denied writs in 1991.

Having exhausted his state remedies, Wilkerson brought a

habeas corpus action in f ederal district court. The magistrate

judge recommended that relief be denied, and the district court

adopted that reco mmendation. Because we find that Wilkerson was

indicted by a grand jury that unconstitutionally excluded women, we

reverse and remand to the district court with instructions to grant

a writ of habeas corpus. We do so on the basis of circuit

precedent that we now recommend be overruled en banc.

I.

Wilkerson and his codefendant, Grady Brewer, currently inmates

at the Louisiana State Penitentiary, were indicted in September

1973 by a West Feliciana Parish, Louisiana, grand jury. They moved

to quash the indictment on the ground that there were no women on

th e grand jury venire or on the grand jury that indicted them. 1

Their motion was denied, a trial jury found them guilty, and they

were sentenced to life imprisonment. On their initial appeal, the

Louisiana Supreme Court affirmed the conviction an d sentence of

Brewer but reversed as to Wilkerson and remanded for a new trial.

State v. Brewer

, 301 So. 2d 630 (La. 1974) (finding no error in3

indictment, b ut deciding that trial court committed reversible

e rror in shackling Wilkerson and taping his mouth shut during

trial).

Wilke rson's second trial (on the same indictment) began in

January 1975. He was represented by the same attorney in both

trials. Again he was convicted, and he appealed.

O n appeal, Wilkerson urged several assignments of error,

including the improper seating of a grand juror, an erroneous trial

court ruling limiting the scop e of his cross-examination of a

witness, denial of a motion for a directed verdict, and denial of

a motion for change of venue. The Louisiana Supreme Court affirmed

the conviction but did not revisit the previously denied motion to

quash the grand jury venire. S tate v. Wi lkerson , 326 So. 2d 353

(La. 1976). Before that court ruled on the second appeal, however,

the United States Supreme Court had decided Taylo r v. Louisiana

,

419 U.S. 522 (1975), holding that Louisiana's jury selection system

excluding women and blacks f rom petit jury venires violated the

Sixth and Fourteenth Amendments, and Daniel v. Louisiana

, 420 U.S.

31, 32 (1975), holding that Taylor would not be applied retroactively to "convictions obtained by ju ries empaneled prior to the

date of [ Taylor ]."

In Febr uary 1989, Wilkerson filed an application for postconviction relief in the state trial court. He raised five issues:

(1) He was denied his Sixth and Fourteenth Amendment rights because

of the exclusion of women from jury service, including the panel

from which his grand jury was drawn; (2) an unqualified juror was4

seated on the grand jury; (3) he was denied his right to crossexamine fully a witness against him; (4) the decision to handcuff

and shackle him during his second trial prejudiced the jury; and

(5) his trial counsel was ineffective for (a) failing to reurge the

previously denied motion to quash the indictment based upon the

exclusion of wome n, (b) failing to raise a motion to quash the

indictment based upon the unqualifie d juror, and (c) failing to

object to the handcuffing and shackling during the se cond trial,

which was arguably in vio lation of the Louisiana Supreme Court's

decision in Brewer

.

The trial court denied the petitioner's post-conviction relief

on March 10, 1989. The Louisiana Supreme Court denied writs on

May 17, 1991. W ilkerson v. Smith

, 580 So. 2d 370 (La. 1991).

Wilkerson then sought habeas relief in federal district court. The

magistrate judge recommende d that relief be denied, and the

district court adopted that recommendation.

II.

Wilkerson argues that he should have the benefit of the rule

announced in Taylor declaring Louisiana's jury selection system

unconstitutional, because the decision was announc ed before his

direct appeal was final. Because we are bound by circuit precedent

to apply Taylor retroactively under the rule announced in Teague v.

Lane , 489 U.S. 288 (1989), we must grant Wilkerson habeas relief.

In Leichman v. Secretary, La. Dep't of Corrections , 939 F.2d

315, 317 (5th Cir. 1991) (per curiam), a panel of this court held2 Daniel determined that Taylor should not apply retroactively.

Griffith and Teague changed the law of retroactivity but did not determine

whether the new law of retroactivity should itself be applied retroactively.

5 that a habeas petitioner could take advantage of the rule announced

in Taylor before his direct appeal was final because "[t]he law

regarding retroactivity changed drastically when the court decided

Griffith v. Kentucky

, 479 U.S. 314 (1987), and Teague v. Lane

, 489

U.S. 288 (1989)." That panel did not consider the implications of

applying Teague retroactively; it merely appeared to assume that it

could do so. 2

Although bound by L eichman to grant habeas relief, anothe r

panel in Williams v. Whitley

, 994 F.2d 226 (5th Cir. 1993),

suggested that Daniel should still control the application of

Taylor

. As the W illi ams panel recommended, see id. at 236, we

elected to rehear Williams en banc sub nom. Fulford v. Whitley

, see

Williams

, id. at 236, to decide this issue, but the case was mooted

by the peti tioner's death. Thus, we are still bound to follow

Leichman on this issue, but we acknowledge the arguments set out in

Williams against applying Taylor retroactively and, for the reasons

set forth in Williams , we urge en banc review.

III.

Wilkerson's second claim is based upon a violation of s tate

law. He alleges that a member of the grand jury that indicted him

was not domiciled in Wes t Feliciana Parish. As we have stated,

however, "`[W]e do not sit as "super" state supreme court' in a

habeas corpus proceeding to review errors under state law."3 The state's brief claims that the juror in question was actually

domiciled in West Feliciana Parish. He was a construction worker temporarily

living outside the parish. The brief claims that this juror did not intend to

abandon his domicile and that in Louisiana, "the critical element in determining place of residence is intent." State v. Kennedy , 8 Rob. 590 (La. 1845).

4 Riley had written several letters to prison administrators regarding

his transfer and his decision to testify for the state.

6 Cronnon v. Alabama

, 587 F.2d 246, 250 (5th Cir.) (citations

o mitted), c ert. denied

, 440 U.S. 974 (1979); Cook v. Morrill

,

783 F.2d 593, 596 (5th Cir. 1986). As Wilkerson's claim does not

present any federal constitutional violations, we need not address

it. 3

IV.

Wilkerson contends that he was not given an opportunity fully

to cros s-examine William Riley, the eye-witness to the murder.

Wilkerson wanted to question Riley regarding any possible bias he

might have based upon Riley's transfer from a lockdown area after

testifying against Wilkerson in the first trial. 4 The trial court

limited the cross-examination of Riley on the subject of bias to

whether he had received anything in exchang e for his testimony.

Questions about Riley's transfer or the letters he had written were

not permitted. Other than that limitation, though, Wilkerson had

a thorough opportunity to cross-examine the witness.

Where the admission of evidence is concerned, on habeas corpus

review the standard is whether the state court's evidentiary ruling

was sufficien tly egregious to render the trial fundamentally

unfair. E dwards v. Butler

, 8 82 F.2d 160, 164 (5th Cir. 1989).

Although "cross-examination must be permitted into any incentive7

the witness may have to falsify his testimony," Evans v. McCotter

,

790 F.2d 1232, 1241 (5th Cir. ) (citing D avis v. Alaska

, 415 U.S.

308, 317 (1974)), cert. denied

, 479 U.S. 922 (1986), Wilkerson

never alleged that Riley's testimony was falsified.

The ruling was designed to prevent the jury from learning that

Wilkerson pr eviously had been convicted of the same offense

(Riley's letters indicated that he h ad testified in Wilkerson's

first trial.). Furthermore, the jury could infer from the transfer

that the witness was move d to protect him from Wilkerson. Thus,

the limitation on cross-examination was designed to avoid prejudicing the defendant.

Riley witnessed the murder from a distance of four to five

feet and testified that he saw Wilkerson stab the victim twice in

the chest. Wilkerson was permitted to inquire into whether Riley

received anything in exchange for his testimony and into other

possible motivations for bias. The trial court's limitation on

cross-examination about the letters and the transfer was not so

great as to render the trial fundamentally unfair or to deprive

Wilderson of his Sixth Amendment right to confront witnesses

against him.

V.

Wilkerson's fourth claim is based upon the trial court's

decis ion to handcuff and shackle him during the second trial,

despite the reversal of his conviction after the first trial based

upon the shackling and taping of his mouth. While a criminal8

defendant is entitled to the physical indicia of innocence, a court

is justified in ordering him handcuffed and shackled during trial

where there is a danger of escape or injury to the jury, counsel,

or other trial participants. S ee Patterson v. Estelle

, 494 F.2d 37

(5th Cir.), cert. denied , 419 U.S. 871 (1974).

The parish sh eriff testified that it was the practice to

shackle only dangerous prisoners. As there was no evidence that

Wilkerson was an escape risk or would have been dangerous or

disruptive, the court was not justified i n handcuffing and

shackling Wilkerson d uring his second trial. Nevertheless, the

error was harmless. S ee Buchanan v. Kentucky

, 483 U.S. 102 (1987)

(applying harmless error standard to Fifth and Sixth Amendm ent

violations).

The jury knew Wilkerson was an inmate and convicted felon and

could have assumed that all inmates were tried in handcuffs and

shackles. Furthermore, given the eye-witness testimony of Riley,

it is unlikely that the result would have been different if

Wilkerson had not been handcuffed and shackled.

VI.

Wilkerson's last claim is that his trial counsel was ineffective for (1) failing to reurge the previously denied motion to

quash the indictment based upon the exclusion of women, (2) failing

to raise a motion to quash the indictment based upon the unqualified juror, and (3) failing to object to the handcuffing and

shackling during the second trial. To show that a criminal5 It is not evident from the record whether the attorney formally

objected.

9 defendant received ineffective assistance of counsel, he must show

(1) that counsel's performance was in some way deficient and that

(2) the deficiencies were prejudicial so that, but for the errors,

there is a reasonable probability that the result would have been

different. S trickland v. Washington

, 466 U.S. 668, 694 (1984). A

reasonable probability is one sufficient to undermine confidence in

the outcome. If the facts adduced at trial point so overwhelmingly

to the defendant's guilt that even the most competent attorney

would be unlikely to have obtained an acquittal, the defendant's

ineffective assistance claim must fail. G reen v. Lynaugh

, 868 F.2d

176, 177 (5th Cir.), cert. denied , 493 U.S. 831 (1989).

Wilkerson's three claims are meritless. First, the motion to

quash the indictment had already been made and rejected. T aylor

could not have been applied retroactively at that time, and

Wilkerson made no showing that the presence of a woman on the grand

jury would have affected his conviction. Second, the issue of the

grand juror's domicile had been rejected in the first appeal, and

it would not have changed the trial result. Third, the failure to

object to the handcuffing an d shackling, 5 even if the failure was

error, did not affect the accuracy of the outcome. The evidence

against Wilkerson was overwhelming; none of his claims amounts to

a serious constitutional issues.10 VII.

Because we are bound by Leichman

, we REVERSE the denial of

habeas relief and REMAND to the district court with instructions to

order the state either to try Wilkerson again within 180 days or to

release him. Nevertheless, we urge that this grant of relief and

the holding of Leichman be reconsidered by the court en banc.