                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 18 2010

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




                            FOR THE NINTH CIRCUIT



ROBERT RAMESES,                                  No. 08-16584

             Petitioner - Appellant,             D.C. No. 2:04-cv-01173-GEB-
                                                 GGH
  v.

SCOTT KERNAN, Warden; GARY                       MEMORANDUM *
LACEY, District Attorney for El Dorado
County; PAUL SUTHERLAND, Deputy
District Attorney for El Dorado County;
COUNTY OF EL DORADO SUPERIOR
COURT,

             Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                           Submitted February 9, 2010 **
                             San Francisco, California

Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      A California state court jury convicted Robert Rameses on one count of

uttering bad checks under California Penal Code § 476a, and additionally found

that he had four prior convictions qualifying as “strikes” under California’s Three

Strikes law, California Penal Code § 667. Accordingly, the trial court sentenced

him to a term of imprisonment of 25 years to life. The California Court of Appeal

affirmed his conviction and sentence on direct appeal, and the Supreme Court of

California denied review.

      Rameses then petitioned the U.S. District Court for the Eastern District of

California for a writ of habeas corpus, alleging three claims for relief. The district

court denied his petition, and issued a certificate of appealability covering all three

claims. See 28 U.S.C. § 2253(a), (c). Rameses timely appealed. As the facts are

known to the parties, we repeat them only as necessary to explain our decision.

                                           I

      Rameses first contends that the trial court erred by failing to hold a hearing

before requiring him to wear a stun belt and that he suffered prejudice as a result of

this error. Although we agree that the trial court erred by failing to hold a hearing,

see Gonzalez v. Pliler, 341 F.3d 897, 901 (9th Cir. 2003), Rameses has failed to

demonstrate that this error caused him prejudice. He first contends that the sight of

him wearing a stun belt colored the jury’s opinion of him. However, Rameses fails


                                           2
to challenge the district court’s conclusion that he failed to exhaust this claim, and

he has therefore waived any challenge to this conclusion. See Kohler v. Inter-Tel

Techs., 244 F.3d 1167, 1182 (9th Cir. 2001). Second, Rameses contends that his

fear of the stun belt rendered him unable to communicate freely with his counsel.

The record refutes this contention, however; Rameses was outspoken throughout

the trial, but never mentioned his fear of the stun belt. As Rameses has not

demonstrated prejudice as a result of the trial court’s error, he is not entitled to a

writ of habeas corpus on this claim. See Gonzalez, 341 F.3d at 903.

                                            II

      Rameses next claims that the state court improperly permitted the California

prosecutor to use Rameses’s prior immunized testimony from a Florida murder

trial. Rameses acknowledges that the prosecutor did not use this testimony as

evidence at his California trial, but rather used it when determining whether to

prosecute Rameses under the Three Strikes law. Nevertheless, Rameses contends

that this non-evidentiary use of his testimony violated his Fifth Amendment rights.

      The only Supreme Court case Rameses cites in support of this claim is

Kastigar v. United States, 406 U.S. 441 (1972), which held that prosecutors may

not use a defendant’s prior immunized testimony as evidence in a subsequent

criminal prosecution. No Supreme Court decision extends this rule to a non-


                                            3
evidentiary use of immunized testimony such as the charging decision at issue

here. Thus, we conclude that the district court properly rejected this claim. See 28

U.S.C. § 2254(d).

                                          III

      Finally, Rameses claims that his sentence is unconstitutional. For his

Florida murder convictions to qualify as “strikes” under California law,

prosecutors must have demonstrated that Rameses used a firearm or “deadly

weapon” in each. Cal. Penal Code § 667(d); id. § 1192.7(c)(8), (c)(23). Because

the California trial judge, rather than jury, made the finding that Rameses’s prior

crimes involved a deadly weapon, Rameses argues that his sentence violated

Apprendi v. New Jersey, 530 U.S. 466 (2000).

      The district court concluded that the trial court committed an Apprendi error,

a conclusion the respondent does not contest. This concession does not entitle

Rameses to a writ of habeas corpus, however, because the trial court’s error was

harmless beyond a reasonable doubt. See Washington v. Recuenco, 548 U.S. 212,

221-22 (2006). The indictments and plea agreements from Rameses’s Florida

convictions, as summarized by the California Court of Appeal, demonstrate that he

committed each murder with a gun, knife, or sword—each of which constitutes a

deadly weapon under California law. Had counsel presented the jury with these


                                          4
documents, it undoubtably would have concluded that Rameses committed each of

his prior murders with a firearm or deadly weapon. Thus, the Apprendi error was

harmless beyond a reasonable doubt.

                                         IV

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




                                          5
