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Rasmussen v. Frakes
Citation: 325 F. App'x 500Docket: No. 07-35016
Court: Court of Appeals for the Ninth Circuit; April 20, 2009; Federal Appellate Court
Petitioner Guy Rasmussen's appeal of the district court's dismissal of his habeas corpus petition under 28 U.S.C. § 2254 has been affirmed. The district court appropriately dismissed claims eight and eleven due to Rasmussen's failure to fairly present these claims to the Washington Court of Appeals, resulting in procedural barring. Specifically, claim eight was not adequately presented as a federal constitutional claim, as a mere reference to due process did not suffice. Rasmussen conceded that claim eleven was also not presented as such, confirming its dismissal. The court granted Rasmussen's motion to broaden the certificate of appealability to include his claim regarding juror visibility of his shackles, which he argued violated his due process rights. While acknowledging the potential constitutional error in the jurors seeing his shackles, the court found insufficient evidence in the record to warrant an evidentiary hearing on the matter. Rasmussen’s evidence consisted primarily of his trial counsel's speculative affidavit regarding efforts to shield the shackles, which did not meet the standard for requiring a hearing. The final ruling is an affirmation of the lower court's decision, with the disposition noted as not suitable for publication or citation as precedent.