                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 21 2009

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARCUS LEE RAWLS,                                 No. 07-56455

              Petitioner - Appellant,             D.C. No. CV-03-00724-
                                                  MMM(AN)
  v.

MELVIN HUNTER,                                    MEMORANDUM *

              Respondent - Appellee.



                    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.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       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.1 See, e.g., United States v. Olano, 62 F.3d 1180,

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

      1
        Rawls relies on Deck v. Missouri for the proposition that any visible
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.
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.
