                           NOT FOR PUBLICATION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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