What are the legal rules for shackling a defendant in court?

Jay Leiderman
By: Jay Leiderman
April 05 2016

THE HUMAN DIGNITY OF THE ACCUSED, AND THE FUNDAMENTAL DIGNITY OF THE COURT REQUIRE THAT DEFENDANT APPEAR WITHOUT RESTRAINTS AT TRIAL, ABSENT MANIFEST NECESSITY TO SHACKLE

Many years ago, Blackstone wrote “though under an indictment of the highest nature, [the defendant] must be brought to the bar without irons or any manner of shackles or bonds, unless there is evident danger of escape, and than he may be secured with irons.  4 Blackstone Commentaries 322; See also 2 Hale’s Pleas of the Crown 219.

Recognizing these common law pronouncements, the California Supreme Court held over 100 years ago in People v. Harrington (1871) 42 Cal. 165, that:

…any order or action of the court which, without evident necessity, imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional right to a defense, and especially would such physical bonds and restraints in like manner materially impair and prejudicially affect his statutory privilege of becoming a competent witness and testifying on his own behalf.

 

People v. Harrington at 168.

California courts have adhered the principles enunciated in Harrington since it was decided. See, for example, People v. Kimball (1936) 5 Cal.2d 608; People v. Ross (1967) 67 Cal.2d 64; People v. Chicon (1968) 69 Cal.2d 765. More recently in People v. Duran, the court opined:

We believe that possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand, all support our continued adherence to the Harrington rule.

 

People v. Duran (1976) 16 Cal.3d 288

Indeed, California was the first state to adopt the common law rule that the accused “must be brought before the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.” (4 W. Blackstone, Commentaries on the Laws of England, 317 (1769); People v. Harrington (1871) 42 Cal. 165, 167; Deck v. Missouri (2005) 544 U.S. 622, 627  [125 S. Ct. 2007, 2011-2012; 161 L. Ed. 2d 953].) The force and application of this rule has only strengthened over time. “It is, of course, well settled that during a trial ‘a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.’”  (People v. Fierro (1991) 1 Cal.4th 173, 218, quoting People v. Duran (1976) 16 Cal.3d 282, 290-291; see also Penal Code §688.)

The showing of necessity cannot be based upon the nature of the charge, nor upon the defendant’s conduct prior to apprehension, but rather his conduct while in custody or an expressed intention to escape or engage in other nonconforming conduct.  (Deck, supra, 544 U.S. at p. 624, 628; People v. Hawkins (1995) 10 Cal.4th 920, 944; People v. Jacla (1978) 77 Cal.App.3d 878, 883-884; People v. Valenzuela (1984) 151 Cal.App.3d 180, 192; People v. Jackson (1993) 14 Cal.App.4th 1818, 1824.)

The United States Supreme Court has also noted that beyond the possible effect of shackling upon a jury, “the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.”  (Illinois v. Allen (1970) 397 U.S. 337, 344.)  In the absence of a showing of manifest necessity, and a judicial order permitting restraints, a court’s refusal to comply with its obvious and well-settled duty to prevent a defendant’s unlawful shackling would have to be “deemed to constitute an abuse of discretion.”

In another case, the United States Supreme Court has likewise found that restraining a defendant violates fundamental notions of due process. (Deck, supra, 544 U.S. at p. 629 [125 S. Ct. 2007, 2011-2012; 161 L. Ed. 2d 953].) In fact, in Deck, the court extended its prior rulings, specifically holding that the Fifth and Fourteenth Amendments prohibit the use of restraints at trial, unless justified by specific evidence in the particular case. (Id., at pp. 628-629.)

Echoing the reasoning in the California cases, such as Duran and People v. Cox (1991) 53 Cal.3d 618, 651, Justice Breyer identified three “fundamental legal principles” underlying the holding. First, shackling undermines the presumption of innocence, and may unfairly influence a jury to believe that the defendant is dangerous.1 (Deck, supra, 544 U.S. at p. 630; see also Duran, supra, 16 Cal.3d at p. 290.) Second, shackles can interfere with communication between defendant and counsel. And finally, “judges must seek to maintain a judicial process that is a dignified process. The courtroom’s formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual’s liberty through criminal punishment.” (Ibid.) For these reasons, federal due process does not permit visible shackles without evidence of manifest necessity presented in the particular case. (See also Estelle v. Williams (1976) 425 U.S. 501, 503, 505 [48 L. Ed. 2d 126, 96 S. Ct. 1691] – making a defendant appear in prison garb poses such a threat to the “fairness of the fact-finding process” that it must be justified by an “essential state policy”).

Appellant asserts that the rule of Solomon, Deck, and Duran make the trial court’s determination that appellant be shackled during trial prejudicial error – there was no manifest need set forth on the record for such action.  Furthermore, the trial court’s observation that any juror of common sense would realize that the defendants were in custody made the error especially prejudicial.

Where shackling is proposed, the showing required at trial is “manifest need” or “evident necessity” for restraint. “‘Manifest need’ arises only upon a showing of unruliness, an announced intention to escape, or ‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .’”  (People v. Cox (1991) 53 Cal.3d 618, 651, quoting People v. Duran, supra, 16 Cal.3d at p. 292, fn. 11.)  “Moreover, ‘[t]he showing of nonconforming behavior . . . must appear as a matter of record . . . .  The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.’”  (Id., at p. 651; quoting Duran, supra, 16 Cal.3d at p. 291. See also People v. Cunningham (2001) 25 Cal. 4th 926, 987; People v. Hawkins (1995) 10 Cal. 4th 920, 943-944 [overruled in part on other grounds]; People v. Blakeley (2000) 23 Cal. 4th 82, 89.)

 

THE NINTH CIRCUIT HARMONIZES WITH CALIFORNIA LAW IN THIS REGARD SHACKLES DURING TRIAL ARE CONSTITUTIONALLY PROHIBITED; DEFENDANT HEREBY FEDERALIZES HIS OBJECTION TO BEING SHACKLED DURING TRIAL

The Supreme Court in Deck v. Missouri, 544 U.S. 622 (2005), firmly established that the right to appear before the jury free of restraints is “a principle deeply imbedded in our law.” Id. at 629. As a consequence, it is one safeguarded by the Fifth Amendment of the Constitution. Id. The right is not absolute, but shackling must be supported by compelling reasons and is to be used only as a last resort. Illinois v. Allen, 397 U.S. 337, 344 (1970). The basis for this rule at the guilt phase of a capital trial is that shackling impacts the presumption of innocence, the assistance of counsel, and the dignified process of the Court. Id. at 630-32. At the penalty phase of a capital trial shackles threaten related concerns which in turn impact the reliability of the sentencing decision. “Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the ‘severity’ and ‘finality’ of the sanction, is no less important than the decision about guilt.” Deck, 544 U.S. at 632. The decision becomes less reliable when shackles are a “thumb [on] death’s side of the scale.” Sochor v. Florida, 504 U.S. 527, 532 (1992).

There is an extensive body of law noting that shackling of a defendant can cause prejudice during a trial. See, e.g., Dyas v. Poole, 317 F.3d 934, 937 (9th Cir. 2003) (per curium). Visible restraints identify a defendant as separated from the community at large. Shackling creates the impression that a defendant is dangerous or untrustworthy. Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986). However, concerns with regard to shackles go beyond visible restraints. As the Court put it, “the use of [shackling and restraints] is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Id. at 344; accord Deck, 544 U.S. at 630. It also can have the effect of interfering with the defendant’s right to counsel. Shackling is demeaning and can be painful. It may impair a defendants mental faculties and take needed attention of the defendant away from the trial in front of him. Duckett, 67 F.3d at 747-748 (citing Spain v. Rushen, 883 F.2d 712, 720-721 (9th Cir. 1989) (determining that use of shackles before the jury, impacted the accused’s ability to communicate with counsel)).

In the Ninth Circuit, “a defendant has the right to be free of shackles and handcuffs in the presence of the jury, unless shackling is justified by an essential state interest.” Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002); Stewart v. Corbin, 850 F.2d 492, 497 (9th Cir. 1988); Cox v. Ayers, 588 F.3d 1038, 1043-44 (9th Cir. 2009) (finding a rumor that defendant will attempt to escape to not be an “essential state interest” to justify shackling). A trial court may only order shackling “if the court first is ‘persuaded by compelling circumstances that some measure is needed to maintain security of the courtroom’ and if the court pursues ‘less restrictive alternatives before imposing physical restraints.'” Cox, 588 F.3d at 1043 (quoting Duckett, 67 F.3d at 748).

This Court must engage in an analysis of the security risks posed by the Defendant while considering less restrictive alternatives prior to deciding to use shackles at trial. Rhoden v. Rowland, 172 F.3d 633, 636-37 (9th Cir. 1999); see Rhoden v. Rowland, 10 F.3d 1457 (9th Cir. 1993) (shackling unjustified as the defendant had not engaged in any disruptive behavior and had not expressed an intention to escape or disrupt trial). This rule has been applied to cases involving leg restraints, and where there was one arm handcuffed. See, e.g., Parrish v. Small, 315 F.3d 1131 (9th Cir. 2003); McKinney v. Ryan, 2009 U.S. Dist. LEXIS 73958, *36-46 (D. Ariz. Aug. 10, 2009).

 

IT IS THE COURT’S DUTY TO DETERMINE ON AN INDIVIDUAL CASE-BY-CASE BASIS WHETHER SHACKLES ARE NECESSARY; THEY ARE NOT WARRANTED IN THIS CASE.

 

Where shackling is proposed, the showing required at trial is “manifest need” or “evident necessity” for restraint. “‘Manifest need’ arises only upon a showing of unruliness, an announced intention to escape, or ‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .’”  (People v. Cox (1991) 53 Cal.3d 618, 651, quoting People v. Duran, 16 Cal.3d at p. 292, fn. 11.)  “Moreover, ‘[t]he showing of nonconforming behavior . . . must appear as a matter of record . . . .  The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.’”  (Id., at p. 651; quoting Duran, supra, 16 Cal.3d at p. 291. See also People v. Cunningham (2001) 25 Cal. 4th 926, 987; People v. Hawkins (1995) 10 Cal. 4th 920, 943-944 [overruled in part on other grounds]; People v. Blakeley (2000) 23 Cal. 4th 82, 89.)

In People v. Hill (1998) 17 Cal.4th 800 the Court emphasized that a showing exist on the record of “manifest need” for shackles presupposes that it is the trial court, not law enforcement personnel or a prosecutor, that must make the decision an accused be physically restrained  in the courtroom.  A trial court abuses its discretion if it abdicates this decision making responsibility to security personnel or law enforcement. (People v. Jackson (1993) 14 Cal. App. 4th 1818, 1825 [18 Cal. Rptr. 2d 586] [abuse of discretion to delegate shackling decision to bailiff]; People v. Jacla (1978) 77 Cal. App. 3d 878, 885 [144 Cal. Rptr. 23] [same].)  The imposition of restraints in a proper case is normally a judicial function in which the prosecutor plays no necessary part. . . . [I]t is the function of the court, not the prosecutor, to initiate whatever procedures the court deems sufficient in order that it might make a due process determination of record that restraints are necessary.” (People v. Duran, 16 Cal. 3d at p. 293, fn. 12.)

“The trial judge must make the decision to use physical restraints on a case by case basis.  The court cannot adopt a general policy of imposing such restraints upon prison inmates charged with new offenses unless there is a showing of necessity on the record.” (People v. Duran, supra, at p. 293.)    If the defendant is to be restrained, the trial court must make a record concerning the justification.  (Id. at pp. 291 292; see People v. Mar (2002) 28 Cal.4th 1201[reaffirming principles outlined in Duran].)

The Court may not abdicate its responsibility for providing the defendant a fair trial by simply deferring to the Sheriff’s Office (People v. Jackson (1993) 14 Cal.App. 4th 1818, 1825; People v. Jacla (1978) 77 Cal App. 3d 878, 885; People v. Duran, supra, at 16 Cal.3d 293)

As discussed above, both the U.S. Constitution and the California law permit shackling only as an exercise of the court’s discretion. There are two components to this basic rule. First, the particular facts of the case must be presented – no general policy is allowed to undermine the fundamental interest of appearing free from restraints. (Deck, supra, 544 U.S. 622 [125 S. Ct. 2007]; Duran, supra, 16 Cal.3d 282.)2 Secondly, the exercise of discretion is a judicial function. Therefore, the prosecution plays no part. (Duran, supra, 16 Cal.3d at p. 293, fn. 12.) Likewise, no policy of security staff supplies the particular facts required to lawfully impose restraints. Even a shortage of security staff cannot justify shackles: “If the magistrate believed that a single bailiff was insufficient to guard prisoners who had not yet shown “nonconforming behavior,” his only recourse under the Duran standard was to send for more bailiffs.” (Solomon, supra, 122 Cal. App.3d  at p. 535.)

The claim that inadequate facilities permitted violation of a defendant’s constitutional rights was considered and rejected in People v. Zammora (1944) 66 Cal.App.2d 166, in which case the claim was made that limited facilities permitted the court to curtail the defendant’s communication with counsel:

“[T]he accused has the right to sit with his counsel, or at least to be so situated that he can freely and uninterruptedly communicate and consult with his attorney. It is the court’s duty to provide adequate quarters and facilities, which the court has the power to do without limitation.  (Code Civ. Proc. § 144 [see now Gov. Code § 68073, subds. (c), (d).)

“The difficulties which presented themselves to the court by reason of the large number of defendants and counsel, together with the limited courtroom space, is the result of the failure of the court to act in this regard. Under such circumstances, it is not the Constitution or the rights guaranteed by it that must yield.”  (Id., at p. 235, emphasis added.)

The California Supreme Court has made it more than clear that this is an issue which cannot be delegated to courtroom security personnel, in part to assure that a reasoned decision be made:

“[t]he emphasis that a showing exist on the record of ‘manifest need’ for shackles presupposes that it is the trial court, not law enforcement personnel, that must make the decision an accused be physically restrained in the courtroom.  A trial court abuses its discretion if it abdicates this decision-making responsibility to security personnel or law enforcement.”  (People v. Hill (1998) 17 Cal.4th 800, 841, footnote omitted.)

 

The Hill court cited People v. Jackson, supra, 14 Cal.App.4th 1818, in which the Court of Appeal also found that a court erred if it left the decision on whether defendants should be physically restrained to the bailiff: “The trial court therefore abused its discretion and abdicated its responsibilities by leaving the decisions on physical restraints to the discretion of the bailiff and/or other sheriff’s personnel, failing to conduct a prior hearing to determine the need for restraints, [and] failing to consider each defendant’s history individually on the record . . . .”  (Id., at p. 1825, footnote omitted.)  The Jackson court also noted that, even when a security concern is demonstrated, due process demands that a court consider less onerous alternatives to shackling, referring to Spain v. Rushen (9th Cir. 1989) 883 F.2d 712, 721: “Here, there was no evidence that the trial court considered physical restraints to be a last resort, rather than a first resort.”  (Id., 14 Cal.App.4th at p. 1827.)
Lastly, the defendant has the right to be put on notice of any evidence justifying any extraordinary measures, to meet such evidence, and to address appropriate responses to such evidence. (Gibson v. Superior Court (1982) 135 Cal.App. 3d 774)

 

SHACKLING IS INHERENTLY PREJUDICIAL

The United States Supreme Court has deemed that shackling is “inherently prejudicial.”  (Holbrook v. Flynn (1986) 475 U.S. 560, 568 [106 S.Ct. 1340].)  Since shackling is likely to have a negative effect, but these exact effects are difficult to determine from the cold record, a defendant need not demonstrate actual prejudice in order to set forth a due process claim.  (Deck, supra, 544 U.S. 622 [125 S.Ct. at p. 2015], citing Riggins v. Nevada (504 U.S. 127, 137 [112 S.Ct. 1810].)  Therefore the high court has placed the appellate burden upon the prosecution to prove, beyond a reasonable doubt, that the shackling did not contribute to the result of the hearing.  (Deck, supra, 544 U.S. at p. 635.)

Where the jury sees a defendant in shackles, there is a great risk that the jury will infer that the defendant is dangerous and untrustworthy.  (Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633, 636; Holbrook, supra, 475 U.S. at pp. 568-569.)  Additionally, where the evidence against the defendant is not overwhelming, the chance of ensuing prejudice is increased.  (Ibid.)

1 In Deck the discussion is limited to visible shackling, which is the extent of the federal law. California, however makes it clear that any restraint is prohibited. (See People v. Duran (1976) 16 Cal.3d 282, 288, fn. 5; Solomon v. Superior Court (1981) 122 Cal.App.3d 532.)

2 “However, we cannot condone physical restraint of defendants simply because they are prisoners already incarcerated on other charges or convictions.” (Duran, supra, 16 C.3d at p. 293.)

 

This is from a court motion written by Attorney Jay Leiderman in a case involving Mexican Mafia defendants and street and prison gang extortion, robbery and attempted murder allegations.

See: http://www.vcstar.com/news/local/county/officials-say-arrests-of-mexican-mafia-are-effective-despite-revolving-door-ep-584436705-351259051.html

The case was the largest ever prosecution in the history of Ventura County.  Jay Leiderman represented the lead defendant.  His client faced 34 life terms and over a thousand years in prison.  He was sentenced to 27 years after pleading in the middle of a jury trial.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: https://www.jayleiderman.com/contact/

Jay Leiderman Mexican Mafia
Shackles may only be used after a showing of manifest necessity

16 thoughts on “What are the legal rules for shackling a defendant in court?

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  7. Unlike the Supreme Court’s reasoning regarding prison clothes, its rationale in shackling cases has not been grounded only in the presumption of innocence. See Elledge v. Dugger, 823 F.2d at 1451 (recognizing that “the Supreme Court has not bottomed the prohibition against shackling on the presumption of innocence alone”). But see id. at 1454 (Edmondson, J., concurring in part and dissenting in part) (arguing that the presumption of innocence is “the single major analytical thrust” of the shackling cases).

    In Allen v. Illinois, 397 U.S. 337, 344 (1970), the Court recognized two additional “inherent disadvantages” to shackling a defendant at trial: physical restraints may not only cause jury prejudice and impair the presumption of innocence, they may also detract from the dignity and decorum of the proceeding and impede the defendant’s ability to communicate with his counsel. Id. “The lower courts have observed two further weaknesses in imposing physical restraints: they may confuse and embarrass the defendant, thereby impairing his mental faculties; and they may cause him pain.” Spain v. Rushen, 883 F.2d 712, 720-21 (9th Cir. 1989) (citing cases from other circuits), cert. denied, 495 U.S. 948 (1990).

  8. With the exception of the presumption of innocence, these “inherent limitations” of shackling continue into the penalty stage of a trial. Because “there seems to be no reason to restrict the[se] principles to the guilt-innocence stage of trial,” we conclude the constitutional rules regarding shackling at trial apply equally in the sentencing context. Elledge v. Dugger, 823 F.2d at 1451.

    This conclusion is supported by analogy to the treatment of the shackling issue in civil cases. There, the presumption of innocence does not apply. Nonetheless, relying on criminal case precedents, courts have held that when an individual’s level of dangerousness is a question the jury must decide in a civil proceeding, it is a violation of the right to a fair trial to compel that individual to appear before the jury bound in physical restraints. See, e.g., Tyars v. Finner, 709 F.2d 1274, 1284-85 (9th Cir. 1983) (unconstitutional to compel the subject of a civil commitment hearing to wear physical restraints at trial); Lemons v. Skidmore, 985 F.2d 354, 356-58 (7th Cir. 1993) (impermissible to shackle plaintiff prison inmate in a civil rights action alleging excessive force by corrections officers). Cf. Holloway v. Alexander, 957 F.2d 529, 530 (8th Cir. 1992) (constitutional to shackle plaintiff prison inmate in civil rights action challenging constitutionality of living conditions in state prison, because plaintiff’s status as dangerous felon irrelevant).

  9. In the penalty phase of a capital trial, the jury knows the defendant is a convicted felon. But the extent to which he continues to be dangerous is a central issue the jury must decide in determining his sentence. “[N]ot all convicted felons are so dangerous and violent that they must be brought to court and kept in handcuffs and leg irons.” Lemons v. Skidmore, 985 F.2d at 357. Unlike prison clothes, physical restraints may create the impression in the minds of the jury that the court believes the defendant is a particularly dangerous and violent person. Therefore, in the absence of a compelling need to shackle the defendant during his sentencing hearing, such a practice is inherently prejudicial.

    The right to appear before a jury free of shackles, however, is not absolute. Wilson v. McCarthy, 770 F.2d 1482, 1484-85 (9th Cir. 1985). Shackling is inherently prejudicial, but it is not per se unconstitutional. See Spain v. Rushen, 883 F.2d at 716. Under certain circumstances, “shackling . . . may be appropriate because of the public’s competing interest in courtroom security and the just administration of law.” Id. at 722 (citing Allen v. Illinois, 397 U.S. at 344). Because of the potential for prejudice, however, due process requires that shackles be used only as a “last resort.” Illinois v. Allen, 397 U.S. at 344.

  10. It is a denial of due process if a trial court orders a defendant shackled without first engaging in a two-step process. Castillo v. Stainer, 983 F.2d 145, 147-48 (9th Cir. 1992), as amended by, 997 F.2d 669 (9th Cir. 1993). “First, the court must be persuaded by compelling circumstances ‘that some measure [is] needed to maintain security of the courtroom.’ ” Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.) (quoting Spain v. Rushen, 883 F.2d at 720), cert. denied, 498 U.S. 832 (1990). “Second, the court must ‘pursue less restrictive alternatives before imposing physical restraints.’ ” Id. (quoting Spain, 883 F.2d at 721). See also United States v. Baker, 10 F.3d 1374, 1401 (9th Cir. 1993).

  11. A defendant’s status as a convicted felon may justify a trial judge’s concern for security. Wilson v. McCarthy, 770 F.2d at 1482. Standing alone, however, this is not sufficient reason to impose physical restraints. Rhoden v. Rowland, 10 F.3d 1457, 1458 (9th Cir 1993). See also State v. Young, 853 P.2d 327, 350-51, 351 n.97 (Utah 1993) (holding that a murder conviction alone is not a sufficient basis for shackling a defendant at sentencing). In all the cases in which shackling has been approved, there has also been evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities. See, e.g., Morgan v. Bunnel, 24 F.3d 49, 51 (9th Cir. 1994); Hamilton v. Vasquez, 17 F.3d 1149, 1154-55 (9th Cir. 1994); United States v. Baker, 10 F.3d at 1401; King v. Rowland, 977 F.2d 1354, 1358 (9th Cir. 1992); Jones v. Meyer, 899 F.2d at 885; Stewart v. Corbin, 850 F.2d 492, 498 (9th Cir. 1988), cert. denied, 490 U.S. 1016 (1989); Wilson v. McCarthy, 770 F.2d at 1485.

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