NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 10 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KEVIN O’CONNELL, No. 08-16500
Petitioner – Appellant, D.C. No. 5:01-CV-20863-RMW
v.
MEMORANDUM *
KELLY HARRINGTON, Warden,
Respondent – Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted February 16, 2011
San Francisco, California
Before: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL,** District
Judge.
Petitioner Kevin O’Connell appeals from the district court’s denial of his
Section 2254 habeas corpus petition, in which he challenged his sentence under the
California three strikes law. Mr. O’Connell argues that his due process rights were
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Tena Campbell, Senior United States District Judge
for the District of Utah, sitting by designation.
violated because he was shackled during the guilt and sentencing phases of the
bifurcated trial proceedings. Mr. O’Connell also asks the Court to expand the
Certificate of Appealability to address a Miranda issue.
Mr. O’Connell’s request that the Court issue a certificate of appealability on
the Miranda issue is denied. Mr. O’Connell did not make a substantial showing
that the events related to the recorded custodial interrogation resulted in the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 484 (2000).
His appeal of the two certified issues fails on the merits. The sufficiently
developed state court record does not contain any evidence that the jury saw or
knew of Mr. O’Connell’s shackles during the guilt phase. Indeed, Mr. O’Connell’s
trial counsel admitted that a jury instruction regarding physical restraints was not
necessary because the shackles were not visible to the jury. No constitutional error
occurred during the guilt phase. Ghent v. Woodford, 279 F.3d 1121, 1132 (9th
Cir. 2002). But even if a constitutional error occurred, the overwhelming evidence
of Mr. O’Connell’s guilt rendered any such error harmless. Cox v. Ayers, 613
F.3d 883, 891 (9th Cir. 2010).
During the sentencing phase, although the jury clearly saw Mr. O’Connell’s
shackles, any constitutional error was harmless because Mr. O’Connell revealed
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his shackles only after the presentation of overwhelming evidence (including Mr.
O’Connell’s testimony) that he had three convictions qualifying him for sentencing
under California’s three strikes law. Id.
In sum, Mr. O’Connell failed to show that the “state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87
(2011).
AFFIRMED.
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