William D. Mello, Petitioner-appellant, v. Charles D. Marshall, Respondent-appellee, 52 F.3d 334 (9th Cir. 1995)

MEMORANDUM^** 

California state prisoner William Mello appeals from the district court's denial of his petition for a writ of habeas corpus, arguing that accomplice Lawrence Modesto's brief presence at Mello's trial in prison clothing and shackles denied him a fair trial. In order to prevail on his claim, Mello had to prove that the appearance was either inherently prejudicial or actually prejudicial to his fair trial rights. See Holbrook v. Flynn, 475 U.S. 560, 572 (1986). The brief or inadvertent presence of a witness or defendant in jail clothing or shackles is not inherently prejudicial. United States v. Halliburton, 870 F.2d 557, 560-61 (9th Cir.), cert. denied, 492 U.S. 910 (1989); Wilson v. McCarthy, 770 F.2d 1482, 1485-86 (9th Cir. 1985). Modesto's appearance was brief, thus decreasing the likelihood that it influenced the jury at all, and did not strongly suggest to the jury that Mello was guilty.

Mello's claim of actual prejudice is based on both the appearance of Modesto in jail clothing and shackles, and the effect Modesto's presence had on Mello during cross-examination. Modesto's brief appearance in jail clothing and shackles was more likely to help Mello than harm him, since it lent support to Mello's defense that Modesto was the real culprit. Mello's insistence that Modesto's presence prejudiced his trial by causing him to respond combatively during cross-examination is equally meritless. Mello had engaged in previous outbursts during the trial, and was not cross-examined until the day after Modesto's appearance, giving Mello adequate time to cool off.

In the absence of a showing of "substantial and injurious effect or influence in determining the jury's verdict [,]" Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)), the decision appealed from is

AFFIRMED.¹