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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40615

Summary Calendar

RAUL GARZA TAMEZ,

Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:07-CV-362

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

Raul Garza Tamez, Texas prisoner # 718879, was convicted by a jury of

murder and sentenced by the jury to life imprisonment. Tamez v. State, 205

S.W. 3d 32, 37 (Tex. App. 2006). The district court denied Tamez habeas corpus

relief pursuant to 28 U.S.C. § 2254. The district court granted Tamez a

certificate of appealability (COA) on the issues whether the state trial court

deprived him of a fair trial by allowing him to be tried in leg restraints and

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2009

Charles R. Fulbruge III

Clerk
No. 08-40615

2

whether counsel was ineffective for failing to object to Tamez being tried in leg

restraints.

In addition to arguing the issues as to which the district court granted a

COA, Tamez contends that counsel was ineffective for failing to discover and

present mitigating evidence; that the state trial court violated his First

Amendment rights by allowing evidence of his gang affiliation; that the state

trial court erred by removing potential jurors sua sponte; and that the Texas

Court of Criminal Appeals acted unconstitutionally by denying him an

evidentiary hearing on his state habeas application. The respondent correctly

notes that the district court did not grant a COA on these issues and that Tamez

did not move in his appellant’s brief for an expansion of the COA granted by the

district court. Tamez did not move before briefing for this court to expand the

grant of COA. Tamez requests expansion of the grant of COA in his reply brief;

that request is untimely for our consideration. See United States v. Williamson,

183 F.3d 458, 464 n.11 (5th Cir. 1999); United States v. Kimler, 150 F.3d 429,

431 & n.1 (5th Cir. 1998).

Tamez contends that he was deprived of a fair trial because he was kept

in both hand and leg restraints during the entire trial. According to Tamez, he

was seated at the end of the defense table which was open underneath, allowing

his legs to be seen. The state trial court took no precautions before Tamez took

the stand to mitigate the prejudice inherent in Tamez’s shackling at trial, such

as wrapping the shackles in plastic or directing Tamez to sit when the jury

entered the room in order to avoid the noise created by the movement of the

shackles. He alleges that there was an “excessive TDCJ [Texas Department of

Criminal Justice] detail shadowing [his] every move,” even inside the courtroom.

He further contends that he was prejudiced by being shackled, particularly in

light of his defense of self-defense, and argues that the evidence against him was

not sufficiently overwhelming to render the state court’s error harmless. He

argues that counsel was ineffective for failing to object to the shackling, and he
No. 08-40615

3

alleges that counsel had a disincentive to object because she was employed by

TDCJ and adhered to a TDCJ policy instead of objecting to it.

Tamez alleges in his appellant’s brief that he wore restraints around both

his legs and hands during trial. He did not allege in the district court that his

hands were restrained during trial. This court does not generally consider

habeas arguments raised for the first time on appeal. See Henderson v. Cockrell,

333 F.3d 592, 605 (5th Cir. 2003) (declining to address claim raised for the first

time in an appellate COA motion).

We cannot determine from the record what factual findings were

necessarily decided by implication in Tamez’s state habeas corpus proceeding.

Cf. Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (stating that the

§ 2254(e)(1) presumption of correctness extends to explicit and implicit findings

of fact which are necessary to the state court’s conclusions). However, the record

does not indicate that Tamez’s state habeas claim was denied based on any

unreasonable application of law or unreasonable finding of fact. See

§ 2254(d)(1)&(2).

“The law has long forbidden routine use of visible shackles during the guilt

phase [of a trial]; it permits a State to shackle a criminal defendant only in the

presence of a special need.” Deck v. Missouri, 544 U.S. 622, 626 (2005). The

same is true during the penalty phase in a capital trial. Id. at 632-33. A trial

court may, however, require a defendant to wear restraints if the trial court

deems it necessary to protect the court and the courtroom. Id. at 632. The trial

court must take into account the circumstances of the particular case. Id. The

Supreme Court recognizes that “[t]here will be cases . . . where these perils of

shackling are unavoidable.” Id. When determining whether a violation

occurred, this court considers any “steps to mitigate any prejudicial influence on

the jury.” Chavez v. Cockrell, 310 F.3d 805, 809 (5th Cir. 2002).

On collateral review of a state conviction, a federal court will grant habeas

relief only when the use of restraints “had a substantial and injurious effect or
No. 08-40615

4

influence in determining the jury’s verdict.” Hatten v. Quarterman, 570 F.3d

595, 604 (5th Cir. 2009) (citations and internal quotation marks omitted).

Overwhelming evidence of a defendant’s guilt may be sufficient to render

harmless any error in shackling a defendant. Id. Moreover, a jury’s knowledge

that a defendant already is a convicted prisoner may be a factor to consider when

addressing whether a shackling error is harmless. See Wilkerson v. Whitley, 16

F.3d 64, 68 (5th Cir.), reinstated in relevant part, 28 F.3d 498, 509 (5th Cir. 1994)

(en banc).

It is undisputed that Tamez was a convicted prisoner on trial for a murder

committed in prison and that several other convicted prisoners testified at his

trial. Prisoner/witness Oscar Carranza--whose affidavit appears in the state

court record--conceded that some of those other prisoner/witnesses properly were

wearing restraints.

Any error by the state trial court in having Tamez shackled during trial

was harmless. The jury knew that Tamez was a prisoner accused of committing

a crime in prison. See Wilkerson, 16 F.3d at 68. Additionally, the evidence

against Tamez was overwhelming. He chased his victim and beat him

repeatedly in front of numerous eyewitnesses, even beating the victim after he

fell. Tamez does not deny that he beat the victim. The victim was handcuffed

at the time and could not possibly have inflicted injury on Tamez, no matter

what threats he may have made. The jury also could have inferred from the

evidence that Tamez deliberately fooled an inexperienced guard into placing him

in the victim’s cell, where he could lay in wait for the victim’s return. See

Tamez, 205 S.W.3d at 35-36. In light of the strength of the evidence against

Tamez and the jury’s knowlege that Tamez was already a prisoner, any viewing

of Tamez’s leg restraints by the jury would not have substantially influenced the

verdict. See Hatten, 570 F.3d at 604.

To prevail on an ineffective assistance claim, a defendant must show “that

counsel’s performance was deficient” and “that the deficient performance
No. 08-40615

5

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

The deficiency prong requires that a defendant show that his “counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688.

Under the prejudice prong, the defendant must show that there is a reasonable

probability that, but for counsel’s deficient performance, the result of the

proceeding would have been different, and that counsel’s errors were so serious

that they rendered the proceedings unfair or the result unreliable. Lockhart v.

Fretwell, 506 U.S. 364, 373 (1993). A court need not address both deficient

performance and prejudice if the defendant fails to make a sufficient showing on

either of them. Strickland, 466 U.S. at 697. For the same reasons that Tamez

cannot demonstrate that he was prejudiced by being tried wearing leg restraints,

he cannot demonstrate that he was prejudiced by counsel’s alleged failure to

object to him being tried in those restraints.

AFFIRMED.