In this habeas corpus case brought by a state prisoner the principal issue is whether petitioner was tried before an impartial jury. The day prior to his trial he appeared, shackled and in prison garb, before the jury venire from which on the following day his trial jury was selected. The District Court denied the writ, and we affirm.

Boswell was convicted in the Circuit Court of Mobile County, Alabama, of selling marijuana in violation of state law, and sentenced to a six-year term to commence following a sentence already being served in a federal prison. The Supreme Court of Alabama affirmed.1 Boswell filed his petition pro se, then counsel was appointed and represented him in the evidentiary hearing. The District Judge dismissed the petition in part, for failure to exhaust state post-conviction remedies, and denied relief in all other respects.2

* The habeas petition alleged that Boswell was made to appear in the presence of the entire jury venire "Bare-footed, Unshaven, Hair uncombed, hand-cuffed and chained through no fault of his own." On Monday, September 25, 1972, Boswell was transferred from the city jail to the state Circuit Court in Mobile. He waived reading of the indictment and pleaded not guilty. His attorney presented an oral motion for inspection and analysis of the marijuana. It is not disputed that these proceedings occurred in the presence of the jury venire. The habeas court's findings of fact state that the trial prosecutor: "did not contradict petitioner's testimony (regarding his appearance)3 save for his characterization of whether petitioner was neat or mangy-looking. There is no question that Boswell appeared in court on September 25, 1972, the day of arraignment, in chains and handcuffs and with prison clothing." Boswell made no contention that he was forced to appear in this fashion during his trial, which began the next day with jury selection and extended through Wednesday, September 27. Sentencing was on September 28.

The District Court stated that it did not sanction bringing a non-dangerous defendant to court in the manner employed for Boswell, but found no violation of constitutional rights. The court's opinion emphasized petitioner's appearance at trial4 sans prison garb, handcuffs, or chains, concluded that the probable impact upon the jury,5 if any, was slight, and found that because the record established petitioner's guilt beyond a reasonable doubt, any error was harmless. The court reasoned:

We are faced in this case with a single appearance before the entire jury venire. There is no evidence in the record, and none was presented at the federal hearing, that any of the petit jurors who tried Boswell recognized or identified him in the dress and condition he complains of. Petitioner's counsel did not ask the trial judge to qualify the jury on this issue.

We cannot equate the single appearance of the petitioner in handcuffs and disheveled dress with the trial of a defendant in prison clothes or in chains.

It is firmly established in this circuit that "it is inherently unfair to try a defendant for crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury." Brooks v. Texas, 381 F.2d 619, 624 (CA5, 1967). In Hernandez v. Beto, 443 F.2d 634, 636 (CA5, 1971), we said that "trying (an accused) in his prison clothing infringed a fundamental right the presumption of innocence." In Estelle v. Williams, --- U.S. ----, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), the Supreme Court recognized this same right as a basic component of the constitutionally-secured right to a fair trial, and the Court held that the state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes.6

It is implied in both the District Court's opinion and the state's brief that the fundamental right of an accused to the presumption of innocence is less endangered, and therefore less deserving of protection, at the pre-trial juncture than at trial. The constitutionally-based restraints on a defendant's appearing in garb suggesting guilt protect against the danger that impartial judgments from triers of fact might be impaired or precluded, which will, in turn, preclude fair trial. Application of the constitutional principle is not amenable to per se rules. Rather there must be case-by-case analysis within the analytical framework developed by the caselaw and embracing the fundamental right involved.7

As pointed out by the Supreme Court in Estelle v. Williams,supra, the element of compulsion is crucial.8 We can find no corroboration in the record for Boswell's testimony in the District Court that he complained to the jail attendants and to the trial judge, but the record is clear that his attorney brought the fact of Boswell's appearance to the attention of the trial judge on the day of the trial. After the jury had been selected, empanelled and recessed for the day, Boswell's counsel orally questioned the prejudicial impact of Boswell's attire, asserting two main grounds in support of a motion for continuance.9

Boswell's counsel objected on the day the trial began. But this court has construed the Supreme Court's opinion in Estelle to require more than that:

We glean from this latest Supreme Court case that courts should not release state prisoners on a writ of habeas corpus because of jurors seeing a defendant in a situation which might negate the presumption of innocence, unless the defendant has taken the steps at trial which might eliminate any possible prejudice. (Emphasis added.)

Wright v. Texas, 533 F.2d 185, 188 (CA5, 1976). Wright reversed a grant of habeas to a petitioner who had demonstrated that during the selection of the jury the special veniremen were permitted to view him while he was handcuffed. The District Court held that there was a significant possibility that among those veniremen who viewed Wright in handcuffs were persons eventually selected to sit on the panel. Accordingly, the court found a violation of due process of law, which was not harmless error. As one of two specified grounds of reversal, we coupled our decision in Hardin v. U. S.10 with the Supreme Court case of Estelle and reached this conclusion:

. . . We think that the petitioner waived error by failure to either examine the jurors for the purpose of excluding from the jury panel any member who may have viewed him in handcuffs, or to request an instruction from the court that handcuffs are no indication of guilt.

Id. at p. 187.

In the present case counsel for Boswell successfully challenged some of the veniremen for possible prejudice, but on grounds unrelated to their previous view of him in prison garb. The habeas judge attached significance to this fact and to the absence of evidence that any of the petit jurors who tried Boswell recognized or identified him as the same person who had appeared previously in the dress and condition he complained of. However, even if decision were not based upon the failure to challenge on this issue and to explore it by voir dire, the same result is required on harmless error grounds. The Supreme Court has tacitly approved this circuit's application of the "harmless beyond a reasonable doubt" rule in cases raising the constitutional right at stake in this case. Estelle, --- U.S. id. at ----, 96 S. Ct. 1691, 48 L.Ed.2d at 131-133. We have held that the reviewing court's judgment on the harmless error inquiry must be based on its reading of the record and on what seems to that court to have been the probable impact of the prison garb worn by defendant on the minds of the average jury. Hernandez v. Beto, id. at 637 (citing Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969)). From our analysis of this record "we can perceive no possible inference which clouds or conflicts any essential or material fact. Rather, all such facts lead unerringly to guilt." Thomas v. Beto, 474 F.2d 981, 983 (CA5), cert. denied, 414 U.S. 871, 94 S. Ct. 95, 38 L. Ed. 2d 89 (1973). Petitioner did not deny making the unlawful sale of marijuana and in his testimony specifically admitted the material facts of the transaction. The record provides no evidentiary basis for evaluation of his sole defense, entrapment. Petitioner offered no proof of entrapment and has not briefed the issue in this court. Under the circumstances of this case the appearance of Boswell before the jury venire was harmless error beyond a reasonable doubt.

Boswell has raised several other contentions either in brief, in oral argument, or in both.11 We have examined each and find no reversible error.

AFFIRMED.