FILED
NOT FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERTO ANTONIO BALLARD, No. 10-56220
Petitioner - Appellant, D.C. No. 3:09-cv-00957-IEG
v.
MEMORANDUM *
MATTHEW CATE; EDMUND G.
BROWN, Jr.,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
California state prisoner Roberto Antonio Ballard appeals from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Ballard contends that the his due process rights were violated because he
was visibly shackled in the presence of the jury without adequate justification. We
review for harmless error to determine whether the alleged shackling error had a
substantial and injurious effect or influence on the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993).
We need not decide whether Ballard’s claim is procedurally defaulted
because it lacks merit. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir.
2002).
The district court did not err in determining that there was no evidence in the
record to demonstrate the physical restraints were visible to the jury. See Rich v.
Calderon, 187 F.3d 1064, 1069 (9th Cir. 1999) (no constitutional error where
defendant was shackled with ankle chains during trial and shackles were behind
curtain placed around the defense table to insure that they were not visible to the
jury). Further, even if Ballard’s declaration, submitted in response to the
magistrate judge’s Report and Recommendation, did establish a due process
violation, this violation would not entitle Ballard to any relief under Brecht. See
Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008).
Ballard’s request that we remand for an evidentiary hearing is denied.
AFFIRMED.
2 10-56220