Opinion
No. 07-15600.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 27, 2008.
Donald Masuda, Esq., Kenny N. Giffard, Esq., Law Offices of Donald Masuda, Sacramento, CA, for Petitioner-Appellant.
Laura Wetzel Simpton, Esq., Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding. D.C. No. CV-00-00559-MCE.
Before: PREGERSON, TASHIMA, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner James Smiley Brown appeals from the district court's judgment denying his 28 U.S.C. § 2254 habeas petition challenging his jury-trial conviction for making terrorist threats and for being a convicted felon in possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
As a threshold matter, we reject the state's contention that Brown's claim was procedurally defaulted under In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953). See Park v. California, 202 F.3d 1146, 1152-53 (9th Cir. 2000).
Brown contends that the district court erred by denying his claim that his right to due process and a fair trial was violated when he was observed by the jury while being removed from a sheriff's van in handcuffs and leg shackles. Brown's argument fails as he cannot demonstrate that actual prejudice resulted from the jury's brief and inadvertent observation of him in restraints. See Ghent v. Woodford, 279 F.3d 1121, 1132-33 (9th Cir. 2002).
Brown's request that we remand to the district court to reopen discovery and to conduct an evidentiary hearing is denied. See Sims v. Brown, 425 F.3d 560, 577 (9th Cir. 2005).