Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

MEMORANDUM^** 

Appellant Michael S. Yellen was convicted after a jury trial of conspiracy to commit robbery; grand auto theft; kidnapping for robbery while armed with a firearm; grand auto theft while personally using a firearm; assault with a firearm while personally using a firearm; assault with a firearm; burglary while armed with a firearm and robbery while armed with a firearm in violation of various sections of the California Penal Code. Yellen was sentenced to state prison for concurrent life terms and was given a one-year consecutive enhancement on the life term. In addition, he was sentenced to a consecutive determinate term of seven years and eight months.

The district court denied Yellen's petition for a writ of habeas corpus. On appeal, Yellen argues that he was denied effective assistance of counsel and that his trial was prejudiced because jurors saw him shackled in leg irons. We affirm.

* Yellen claims that he was denied effective assistance of counsel because his attorney was indicted before the trial began, and thus, he says, was not adequately focused on the case. He contends that his attorney failed to (1) argue that the police conducted an illegal search of his car; (2) argue that an officer violated his privacy by pressing his ear, without a warrant, against a motel room wall to eavesdrop on a conversation; (3) move to disqualify the trial judge on account of bias, and (4) object to a jury instruction that the jury "must accept and follow the rules of law as I say them to you." In addition, he argues, he was deprived effective assistance of counsel on appeal because his attorney did not adequately challenge the government's version of events or underlying theories of the case.

We conclude that Yellen's claims do not meet the stringent ineffective assistance of counsel test established in Strickland v. Washington, 466 U.S. 668, 686-87 (1984). There is no evidence that "counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. Moreover, Yellen has not demonstrated that his attorney's conduct fell below an objectively reasonable standard and that, but for that unreasonable conduct, the outcome would have been different. See id. at 684-87. Accordingly, we affirm the district court's decision.

II

Yellen claims that he was denied a fair trial because he was forced to wear leg irons during his trial and handcuffs while entering and leaving the courtroom. Because jurors saw him in this condition, he contends, his trial was prejudiced. The district court found that the trial court took measures that ensured that Yellen was not prejudiced by the shackles. The court noted that leg braces, rather than the more intrusive leg irons and waist chains, were used in order to hide the shackles from the jury. Excerpt of Record ("ER") F at 17 (citing Reporter's Transcript ("RT") at 1409). In addition, the court noted that the bailiff had been concerned that Yellen had participated in planning an attempted escape from the holding cell of his codefendant, which demonstrated a need for the shackles.

As we stated in Hamilton v. Vasquez, 882 F.2d 1469, 1471 (9th Cir. 1989), " [s]hackling is proper where there is a serious threat of escape or danger to those in and around the courtroom, or where disruption in the courtroom is likely if the defendant is not restrained." See also Loux v. United States, 389 F.2d 911, 919 (9th Cir. 1968), cert. denied, 393 U.S. 867 (1968), (shackles are proper "where it was shown that the defendants had an exceptionally high potential for escape and violence, and that they had made some preparations for escape."). Finally, given the unobtrusiveness of the leg braces, the use of shackles was not prejudicial. Even Yellen's counsel commented that the braces were not very noticeable. ER at 17 (citing RT at 1409). Accordingly, we agree with the district court that Yellen has not established a constitutional offense.

We likewise agree that Yellen was not prejudiced by the fact that some jurors saw him leaving the courtroom in handcuffs. The trial judge took corrective measures to admonish the jury not to consider the fact that Yellen was in handcuffs. ER at 18 (citing RT 323-24). In addition, because Yellen was not handcuffed during trial, the time in which jurors saw him in handcuffs was exceedingly brief. Accordingly, we hold that there was not sufficient prejudice to rise to a constitutional violation. See United States v. Acosta-Garcia, 448 F.2d 395, 396 (9th Cir. 1971) (fact that prospective jurors may have seen defendant in handcuffs not sufficiently prejudicial to warrant mistrial, particularly where trial judge took corrective measures).¹ 

AFFIRMED.