Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1989)

MEMORANDUM^** 

Ronald Hancock appeals the district court's dismissal of his habeas corpus petition. The district court held that petitioner had not suffered a constitutional injury either by wearing leg irons during trial or by being given two consecutive life sentences. We affirm.

Hancock was tried and convicted on two counts of murder and received two consecutive life sentences. During the trial he wore leg irons. Before the beginning of trial his attorney had moved that the defendant be tried unshackled, but the motion was denied because of Hancock's record and the lack of adequate security in the courtroom.

Following his conviction Hancock instituted three post-trial proceedings challenging the constitutionality of the shackling and of the consecutive sentences. Unsuccessful in those efforts, Hancock filed a petition for habeas corpus with the district court alleging the same constitutional injuries. The district court granted the respondent's motion for summary judgment as to both claims. Hancock claims an evidentiary hearing should have been conducted by the district court before it ruled.

The state courts' rulings on factual issues are entitled to a presumption of correctness. 28 U.S.C. § 2254(d). The district court was required to hold an evidentiary hearing only if the state courts had not reached and decided the issues of fact raised by the defendant at a full and fair hearing. Townsend v. Sain, 372 U.S. 293, 312-213, 83 S. Ct. 745, 757-758, 9 L. Ed. 2d 770 (1963).

The trial court may exercise its discretion to shackle a defendant only when exceptional circumstances justify the approach. Spain v. Rushen, No. 86-2687, slip op. 9737 (9th Cir. Aug. 26, 1989); Wilson v. McCarthy, 770 F.2d 1482, 1485 (9th Cir. 1985). On the other hand, the courts do have a legitimate interest in preserving the security of the courtroom for the benefit of all concerned. Loux v. U.S., 382 F.2d 911, 919 (9th Cir. 1968), cert. denied 393 U.S. 867, 89 S. Ct. 151, 21 L. Ed. 2d 135 and 393 U.S. 869, 89 S. Ct. 156, 21 L. Ed. 2d 138 (1988). Here the trial court found that the defendant had made two previous escape atempts and was serving a life sentence. It also found that the bailiff was elderly and frail, that the courtroom had three doors available for exit and that the sheriff's office had a very limited number of deputies available.

The trial court's findings were before the state post-conviction court. In addition, the post-conviction court received further evidence. It knew from the defendant's answers to questions that the trial court had tried to keep to a minimum the time the jury could see the defendant in shackles. Defendant explained the procedure used. He was never before the jury in handcuffs. Finally, the trial transcript, also before the post-conviction court, revealed that the defendant's criminal record had been presented to the jury during the trial, so it was aware of his past escapades in any event. That would much attenuate any prejudice from the shackling. We note that the facts in this case are far different from those in a situation such as that in Spain, supra, where although the need was considerably greater, the restraints were immeasurably so.

Therefore, the district court was entitled to rely on the facts developed by the state courts. It was not required to conduct its own evidentiary hearing.

Hancock's attack on this sentence fares no better. At the time Hancock was sentenced Oregon case law permitted the imposition of consecutive sentences for two or more crimes so long as each sentence was within the statutory maximum. State v. Jones, 250 Or. 59, 61, 440 P.2d 371, 372 (1968); Branch v. Cupp., 736 F.2d 533, 536 (9th Cir. 1984), cert. denied 470 U.S. 1056, 105 S. Ct. 1764, 84 L. Ed. 2d 826 (1985).

Hancock has suffered no constitutional injury, and the district court properly dismissed his petition for habeas corpus.

AFFIRMED.