concurring:
Although I concur in the result, I do not concur in the court’s analysis. The Supreme Court has “held that 28 U.S.C. § 2254(d) requires federal courts in habeas proceedings to accord a presumption of correctness to state-court findings of fact. This requirement could not be plainer.” Sumner v. Mata, 455 U.S. 591, 591-92, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982). This presumption is so strong “that if a federal court concludes that the presumption of correctness does not control, it must provide a written explanation of the reasoning that led it to conclude” that one of the eight exceptions from section 2254(d) applies. Id. at 592, 102 S.Ct. at 1304.
The majority’s opinion simply does not give sufficient weight to this presumption. Instead of starting with the presumption of correctness of the state court’s factual findings and reasoning how this presumption is overcome in the present case, the court adopts, at pages 1459-60 of its opinion, sweeping language of the federal courts’ “plenary” power to try facts anew. The majority’s reliance on Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), is inappropriate given that Townsend was decided three years before Congress enacted 28 U.S.C. § 2254(d), see Keeney v. Tamayo-Reyes, — U.S. -, -, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992) (O’Connor, J., dissenting). It is section 2254(d) which governs the level of federal deference to a state court’s factual findings, not Townsend. Under section 2254(d), this court may not dismiss the state court’s finding that- the jury did not see the appellant’s shackles unless it clearly determines and articulates which one of the eight exceptions of section 2254(d) is met. While the majority mentions section 2254(d)(3) in passing as an appropriate exception in this case, it fails to acknowledge the general rule of deference to a state court’s findings of facts before applying the exception.
This habeas case turns on whether the jury saw that the petitioner was shackled without justification during his trial, in violation of his constitutional rights. See Castillo v. Stainer, 983 F.2d 145, 148 (9th Cir.1992) (“constitutional error is committed by a state court that shackles without” appropriate justification). There are three reasons why the material fact of whether the jury could see the petitioner’s shackles was not adequately developed at the State court. First, the state trial court reasoned that the petitioner *1463could have asked the jurors whether they saw his shackles. This, of course, is a Cateh-22. If the petitioner had asked, then attention would have been drawn to the shackles. Rhoden took steps at each stage of the proceedings to develop a record that the jury could see his shackles, short of explicitly asking the jury to observe them.
Second, the state appellate court ruled that even though the shackling was an abuse of discretion, the error was harmless because “[n]othing in the record establishes any jurors actually saw the shackles.” But the court rejected testimony from a private investigator that the shackles were visible from the jury seats and the court refused to release the jurors’ names so that Rhoden could obtain direct evidence.
Third, by the time the private investigator, hired by the petitioner, had located three jurors who stated that they had seen the petitioner’s shackles, the district court had deferred to the state court’s finding that the jury had not seen the shackles. In short, the original factual finding to which subsequent courts have deferred was flawed because it did not allow the petitioner a fair opportunity to present evidence that the juror’s saw his shackles. For these reasons, I am persuaded that section 2254(d)(3) applies and the presumption of correctness is overcome in this case.
The federal courts cannot simply “try facts anew” in state habeas eases, as the opinion states. Rather, a federal court must accept the factual findings of the state court unless one of the eight exceptions of section 2254(d) is clearly satisfied. Federal trial courts should not be misled into the temptation to do otherwise.