Marcus Lee Rawls v. Melvin Hunter

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCUS LEE RAWLS,
Petitioner - Appellant,
v.
MELVIN HUNTER,
Respondent - Appellee.
No. 07-56455
D.C. No. CV-03-00724-
MMM(AN)
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted December 11, 2009
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Marcus Lee Rawls appeals the district court’s denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28
U.S.C. § 2253. We affirm.
FILED
DEC 21 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Rawls relies on Deck v. Missouri for the proposition that any visible1
unjustified shackling is constitutional error. 544 U.S. 622, 630-35 (2005).
However, Deck was decided after Rawls’ conviction became final. “‘Clearly
established’ federal law consists of the holdings of the Supreme Court at the time
the petitioner’s state court conviction became final.” Libberton v. Ryan
583 F.3d 1147, 1161 (9th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362,
390 (2000)). We therefore cannot rely on Deck in answering the question whether
the state court’s decision constituted an unreasonable application of clearly
established federal law.
The California Court of Appeal (the Court of Appeal) held that it was clear
error to place Rawls in visible restraints during his civil commitment proceeding,
but concluded that the error was harmless. Rawls argues that the Court of
Appeal’s harmless error analysis was erroneous because it failed to apply the
Chapman harmless error standard. See Chapman v. California, 386 U.S. 18
(1967). However, at the time of the Court of Appeal’s decision, it was not clearly
established that a jury’s brief view of a defendant in unjustified restraints
amounted to constitutional error. See, e.g., United States v. Olano, 62 F.3d 1180,1
1190 (9th Cir. 1995) (“[A] jury’s brief or inadvertent glimpse of a defendant in
physical restraints is not inherently or presumptively prejudicial to a defendant.
[Defendant] must demonstrate actual prejudice to establish a constitutional
violation.”). Therefore, the failure to apply Chapman was not contrary to clearly
established Supreme Court precedent.
Rawls next argues that the Court of Appeal came to an unreasonable
determination of the facts when it found that the jury only briefly “glimps[ed]” him

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in shackles. However, Rawls has failed to point to any “clear and convincing
evidence” that the jury saw his shackles at any point other than when he took the
oath, 28 U.S.C. § 2254(e)(1), nor has he requested an evidentiary hearing on the
issue. 28 U.S.C. § 2254(e)(2). He therefore has not met his burden of rebutting
the presumption that the state court’s determination of the facts was correct. Id.
Rawls also challenges the Court of Appeal’s conclusion that the limitations
the trial court placed on his cross-examination of the state’s expert witness did not
violate Due Process. The trial court refused to permit Rawls to cross-examine the
state’s expert about her reliance on a penile plethysmograph (PPG) test. The Court
of Appeal concluded that this limitation did not violate Due Process because the
expert’s reliance on the PPG test was a “minor” or “subsidiary” point. Rawls
argues that this was an unreasonable determination of the facts. We disagree. The
Court of Appeal’s determination is not unreasonable in light of the expert’s
testimony that her opinion would not have been different absent the PPG results
and that the test merely corroborated other information on which she had relied.
Because we hold that the state court’s decision was neither contrary to
clearly established federal law nor based on an unreasonable determination of the
facts, we affirm the district court’s denial of Rawls’ habeas petition.
AFFIRMED.

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