Washington v. Roe

33 F. App'x 352

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2002
• Docket: No. 00-57112; D.C. No. CV-99-11644-CAS(RNB)
• Status: Published

Opinion

MEMORANDUM

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Jesse Washington appeals the district court’s denial of his habeas corpus petition. See 28 U.S.C. § 2254. He claims that his constitutional rights were violated because he was improperly shackled during his trial. We affirm.

We agree with Washington that the state trial court should have made a record in which it determined that restraint was needed and less restrictive means than shackling were not appropriate. See Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir.1995); Castillo v. Stainer, 983 F.2d (9th Cir.1992), amended by 997 F.2d 669 (9th Cir.1993); Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.1990). But Washington has not presented evidence that the jurors saw the shackles and, indeed, there is evidence to the contrary. That is a virtually fatal omission. See Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir.2002), amended (March 11, 2002); Rich v. Calderon, 187 F.3d 1064, 1069 (9th Cir.1999). Moreover, given the overwhelming evidence against Washington, the prophylactic curative instruction,¹ and Washington’s own lack of restraint, we cannot say that the use of restraints was prejudicial. See Ghent, 279 F.3d at 1133; Packer v. Hill, 277 F.3d 1092, 1106 (9th Cir.2002); Castillo, 983 F.2d at 149.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . See Hamilton v. Vasquez, 882 F.2d 1469, 1472 (9th Cir.1989).