                                                                           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                            NOT FOR PUBLICATION                             DEC 22 2011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
