Mathew Musladin v. Anthony Lamarque, Warden

fеctively statutory erased a provision de- MUSLADIN, Petitioner- Mathew signed power to restrict of the lower Appellant, fully courts to overturn reviewed state court criminal convictions. And we Anthony LAMARQUE, Warden, sharpened have split. a serious circuit

Respondent-Appellee. murder, Musladin was convicted No. 03-16653. upheld his conviction was through direct and collаteral review in the California Appeals, United States Court of courts. The California of Appeal Ninth Circuit. carefully reasonably applied the rele- Oct. precedents vant of the United States Su- Court, preme arguably but deviated from Fermino, David Esq., W. Federal Public implications of a prece- Ninth Circuit Office, Francisco, CA, Defender’s San for dent. Petitioner-Appellant. In Congress adopted the Antiter- Ott, Gregory A. Esq., Office of the Cali- rorism Penalty and Effective Death Act Attorney General, Francisco, fornia San (AEDPA), amending the CA, standard that RespondenNAppellee. for

federal courts must apply to state criminal REINHARDT, THOMPSON, Before convictions habeas cases. The statute BERZON, Judges. Circuit says as amended grant we рetition

habeas if and only the last rea- ORDER soned state court decision “was to, or involved an application unreasonable petition panel rehearing for is DE- of, clearly law, established Federal NIED. by determined Court of the The full court sugges- was advised of the United States.”1 Our decision in this tion for A rehearing judge en banc. the practical erasing has effect of requested a vote on whether to re- statutory phrase “as determined hear the matter en banc. The matter Supreme Court of the United States.” majority failed to receive a of the votes of statutory for Our tools construction are nonreeused active favor of en many,2 do not include an eraser. R.App. banc recоnsideration. Fed. P. 35. go, Yet here erasing estab- request rehearing en DE- banc is phrase expanding lished” the “as de- NIED. phrase. termined” The statute in nine says, matter, states practical now as a KLEINFELD, Judge, to, “contrary or involved an unreasonable KOZINSKI, O’SCANNLAIN, whom of, clearly established Federal TALLMAN, BYBEE, CALLAHAN, and law, as determined BEA, join, Judges, dissenting from States, giving ‘persuasive of the United rеhearing denial of en banc: weight’ to Ninth Circuit decisions I respectfully applied Supreme dissent from the order Court decisions.” denying rehearing en banc. legislative authority. We have ef- do not have that 2254(d)(1) 1. 28 U.S.C. Singer, 2A Norman J. Sutherland on V, Statutoiy Statutes and Construction Part (6th ed.2000). subpart A 648 precedent or “unreaso- the control- ‍‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​‌‌​‌‌‍Court” case and of of this

The facts оnly question it.7 The just nably]” applied clear our show how ling precedents Musladin, any Supreme there is in a cus- us is whether embroiled mistake is. wife, authority signals that holds that silent of estranged mur- his dispute with tody trial, by spectators in a courtroom At his three affiliation fiancé. her new dered by eroding deny process a defendant due family fianeé’s sat of innocence. The answеr presumption his of the courtroom section spectator That should is that there is no such case. picture on them. The his buttons with inquiry. of be the end of our pictures inch two-to-four were buttons had no words. Musladin the victim but The Court held Estelle v. appeal peti- argued in his forcing a defendant to wear Williams him that the buttons denied for review tion “inherently preju- clothes at trial is prison by eroding pre- his law process of due It held in process.8 dicial” and denies due of innocence. sumption Flynn presence Holbrook v. in the conclud- several armed uniformed officers Appeal California directly prison- row behind the express contained no the buttons ed-that inherently Neither unlikely signify “any- prejudicial.9 er is not messagе and were spectator’s sym- holds that a grief normal occa- of these cases other than the thing opinion of affiliation or even denies due a member.”3 bol by the loss of sioned to a defendant. carefully process examined The California Holbrook v. Estelle v. Williams4 garb,” Dressing “prison the defendant (the Court deci- relevant Flynn5 analogous to prоblem,10 the Estelle is not sions) Though cases. and Ninth Circuit First, spectators wearing prison buttons. noted button Appeal the Court of unambiguous is an statement that the garb “discouraged,” held wearing should be Second, already prisoner. defendant is ato denial that the did not amount buttons jury of it is a communication to the did not brand process of due because government’s determination—not a non- mark of an unmistakable Musladin “with governmental spectator’s—that the defen- guilt.”6 buttons, jail. con- belongs dant trast, ambiguous. They task are mean clear that our quite The statute is punished really for a writ “we want this defendant petition review Musladin’s victim,” a lot his to examine the because we care about corpus of habeas is not lot they mаy merely mean “we care a Appeal California Court victim,” implication court. about the without an though higher California we were Rather, proper person is the a much more limited that the defendant we exercise important, punished. to determine be Even more and deferential review any Appeal imply buttons do not deter- whether the California ... Even if the government. established mination acted 2254(d)(1). Musladin, (Cal. 7. 28 U.S.C. People 3. H015159 No. Ct.App.1997). Estelle, U.S. at 530 n. 96 S.Ct. 1691. 8. 425 U.S. 96 S.Ct. Estelle v. (1976). 48 L.Ed.2d 126 568-69, Flynn, 106 S.Ct. 1340. Flynn, S.Ct. 5. Holbrook v. (1986). Estelle, 89 L.Ed.2d 525 U.S. at 96 S.Ct. 1691. Musladin, People No. H015159 at 22. imply did courts were well

buttons within the bounds of rea- punished, that wanted the defendant would interpretation sonable in determining that presumption not be as corrosive of the Flynn. this case is more like The buttons government saying innocencе as the “this picture with a of the dead fiancé did not belongs jail in and already defendant he is say obviously or imply that the defendant there because of our determination.” Un- him, just killed spectators the case, like the buttons in this them cared about him. prison garb the in Estelle detracted from So how did the panel majority manage presumption the of innocenсe and from the to reach a different in result the face of dignity in defendant’s the courtroom.11 Supreme plainly leaving Court decisions presence The of the in armed officers room for the California courts’ conclusion in spectator Flynn section more close and a limiting Supreme statute us to Court ly resembles the facts in our than decisions? The extended a Ninth prison garb does the in Estelle. in Both case, case, Supreme not a jury might perceive

volve what the as com Risley.14 Norris v. But says the statute munications from the section. we cannot do express with the re But Supreme pres Court held that the by Supreme striction “as determined ence of the armed officers did not deprive Court of the United pаn The States.”15 process by corroding the defendant of due el evades that by holding restriction presumption of innocence. And the give “persuasive we weight” to Ninth Cir likely armed officers were far more to do cuit cases when determining what spectators so than not associated with the law, established Federal as deter because, government repre officers Supreme mined pan Court.” The government sented the might and proposition el’s means that grant we will judgment communicated its that the defen precedents writs based on other than those dangerous. Supreme dant was Supreme of the Ergo, Court. the statuto ‍‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​‌‌​‌‌‍held that the armed deny officers did not ry restriction on power is erased. process range due because of the “wider held in Norris—before AEDPA— juror might inferences that a reasonably granted the writ should be where draw from the officers’ presence.”12 several female wore totally courtroom cannot be “Women free indica Against Rape” presence buttons in the tions that the state thinks the defendant is “elevators, jurors courtroom, guilty, “jurоrs quite for are aware that the way courtroom,” their appearing defendant to and from the before them did not while happenstance.” arrive there choice or “the women served refreshments With these two Court cases as outside the courtroom on behalf of the bookends—showing what pro properly denies due California could decide state.”16 Norris, cess and what does not—the California at by distinguishing the ease bar (Brennan, J., 11. See id. at 96 S.Ct. 1691 Id. at 106 S.Ct. 1340. ("Identifiable dissenting) prison garb robs an respect dignity accused of the accorded Risley, 14. Norris v. 918 F.2d 828 Cir. participants other in a trial and constitution- 1990). ally due the accused as an element of the innocence, presumption surely tends 2254(d)(1) 15. 28 U.S.C. eyes jurors brand him in the with аn guilt.”). unmistakable mark of Norris, Flynn, 106 S.Ct. 1340. Norris, of the constitutional we offer on the merits complete

disagreeing AJEDPA’sre- no effect Under claims will have determinative of Norris. ignorance decisions, us, any precedential the case before nor striction long as deny the writ so obligated At are courts in future cases. effect contrary to was not best, the California body of constitutional it constitutes application of Estelle or an unreasonable re- expressly The Fourth Circuit dicta.”20 re- legitimately cannot Flynn. We jects the notion that the lower federal to follow Ninth the California quire to the provide “guidance” courts need to letting pain of our decisions on to read the state courts on how out onto street. prisoners their There is opinions. circuits have four of our sister At least that state courts presume no reason to panel our repudiated ‍‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​‌‌​‌‌‍the error expressly in guidance interpret- are in of our need Circuit, in Mitzel v. The Sixth

has made. controlling ing applying Su- Tate, to the may not look “[w]e held that preme precedents. charge Our Court cirсuit, of or other courts of our decisions only to determine under the statute is the state ‘deciding whether appeals, when adjudication the state court’s of whether to, contrary or an unreasonable decision is a reasonable the claims before was of, clearly established application controlling light Supreme one in of the ”17 in v. Tenth Circuit Welch law.’ Court law.21 AEDPA “restricts the City Pratt held of law to clearly [the established source of Arguably panel our did not create the and fed- jurisprudence” Supreme] Court’s split panel rape support The local center volunteers photo buttons. things New incumbent on may prose- crowd into the seats behind the powerful government officials are mоre rape trial while the victim sits cutor duty than comply fundamental their jurors silently looking through at the legal power. with the limitations on their lawyers up entire trial. Defense round panel arrogated pow- Our has to our court support for the show legitimately possess. er we do not by sitting behind the defense defendant judges up- State take the same oath to tablе. per- hold the Constitution that we do and jury nothing wrong There is with the do, construing form the same work we knowing people care about provisions applying and Constitutional parties. Typically, and the them to the facts before them. We do not arrange wedding guests themselves like appellate prob- sit as a state court. One choosing groom’s the bride’s side or the they deciding lem sometimes have is what side, a party sitting with those who favor to do about lower federal court decisions. lawyer for that In a behind the side. Obviously they have to follow United trial, public jury always decisions, can that a they see States and people routinely lot of care about one side or the construe them as as we do. Ob- оther, except viously they or that no one cares do not have to follow federal parties lawyers. lawyers questions Good often decisions on of state law.27 Not true, just advantage, good quite obviously, use this to their as state prudence they exercise to avoid situa- courts understand that are free to act might prejudice contrary holdings quеs- tions that intimidate or to circuit court on 64, 80, Superintendent, Tompkins, Matteo v. 171 F.3d R.R. Co. (3rd Cir.1999). (1938) (holding 889-90 S.Ct. 82 L.Ed. 1188 interpreta- federal courts are bound 26. U.S. Const. amend. VI. law); Bayer, tions of state Collier v. 408 F.3d (9th Cir.2005) ("Federal 1283 n. generally § 27. See 20 Am. Jur. 2D Courts appealfs] not review state courts of (1965) (noting ignore that state courts free to law.''). interpretations courts' of state law); ruling a federal on a state see also Erie law.28 Lower courts must found ‘the photographs tions of federal of vic- by higher laid down courts. follow the law tims a courtroom to be an “impermissi- ’ ” higher not a court than the But we are play,” coming ble factor into Musladin’s or of California the Cali- Supreme Court conviction could not stand. See Musladin matter, Appeal, or for that fornia Court of Lamarque, courts. are in a California traffic dif- Cir.2005) (panel’s emphasis). The ratio- judicial hierarchy. ferent in support nale offered of this conclusion is “[ujnder panel’s uncertainty Flynn,” Our error creates Williams and inconsistency for the nine state court finding impermissible coming of an factor systems nearly 20% of our nation’s “in play into itself ‘inherent establishеs Ninth population within the Circuit. Must prejudice’ and requires reversal.” Id. they they follow decisions when think opinion misconstrues our decisions are unreason- Williams, In Flynn. Williams and applications prece- able putting Court established that a defendant dent? The thing, statute tells them one in prison garb trial is constitutional another, tell them and the briefs variety error of the amenable to harmless- get will plain tell them both. Under the analysis. error statutory language, state courts are free to 507-09, 96 S.Ct. 1691 (adopting posi- ignore our decisions. But pan- under the tion of the Fifth harm- “the decision, they el’s must follow them. We less-error applicable doctrine is to this line effectively turned ourselves into the cases”); al., 3B Charles Alan Wright et supreme cоurt of the nine states in our Federal Practice and Procedure circuit. I therefore dissent. (3d ed.2004). n.& 8 When BEA, Judge, whom in Flynn holding “reaffirmed its KOZINSKI, O’SCANNLAIN, Judges and Williams,” Musladin, see 403 F.3d at join, dissenting KLEINFELD from the 1075, not, course, it did transform rehearing ‍‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​‌‌​‌‌‍denial of en banc: arrangements “courtroom challenged as join I Judge Kleinfeld’s dissent from the inherently prejudicial” into structural er- rehearing sepa- denial оf en I banc. write rors, 570, Flynn, 475 U.S. at 106 S.Ct. rately to underscore that it was not an Rather, that, Flynn suggested clearly “unreasonable estab- reversal, obtain conviction’s a defendant lished federal law” for the California Court prejudice” must show “actual even after Appeal to deny habeas relief notwith- successfully demonstrating the chal- standing its determination that the weаr- lenged courtroom arrangement was “in- ing of victims’ photographs courtroom 572, herently prejudicial.” id. at an “impermissible constitutes factor com- (“[I]f S.Ct. 1340 challenged practice ing into play.” inherently prejudicial not found that, panel opinion suggests defendant fails to show actual prejudice, once added)). Appeal “specifically inquiry California Court of is over.” English 28. See v. Ari- authoritative than that of the Arizonans federal for Official zona, 43, appeals 520 U.S. 58 n. 117 S.Ct. in whose circuit the trial court is (1997); located."); 137 L.Ed.2d 170 People see also Lockhart v. 16 Cal.4th Fretwell, 364, 375-76, (1997) Cal.Rptr.2d 113 S.Ct. 940 P.2d 710 (Thomas, J., (1993) (recognizing L.Ed.2d 180 concur- that decisions lower ("In ring) system, interpreting our federal a state trial federal law are not bind- courts). interprеtation court's ing of federal law is no less on state words, possible it is Flynn, in other Under “inherently prej- that is

to have situation inherently prejudicial not “so

udicial” but unacceptable an threat pose [a]

as to (em- to a fair trial.” Id. right

defendant’s

phasis applica- a reasonable

Accordingly, was precedent for the

tion of to determine Appeal

California Court of in its view the although in a courtroom is in- photographs

victims’ button-wearing in

herently prejudicial, the actually Musladin deprive

this case did not right to a fair trial. his MUSLADIN,

Mathew Petitioner-

Appellant,

Anthony LAMARQUE, Warden,

Respondent-Appellee.

No. 03-16653. Appeals,

United States Court

Ninth Circuit. Nov.

Argued and Submitted 21, 2005.

Filed Oct. circuit ex nihilo. The notes longer per- “no are therefore eral courts in v. Eighth that Circuit Williams jurisprudence.”18 apply to our own mitted “diversity opin held that the Bowersox22 determined Circuit likewise The Seventh on a among particular ion” federal courts “[fjederal longer permit- are no suggested that the state court did issue jurisprudence, but their own apply ted to unreasonably Supreme apply not Court exclusively Supreme Court look to must precedent.23 saying But the state case-law.”19 court decision is not unreasonable becаuse ‍‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​‌​‌​​‌​‌‌​‌‌​​‌​‌‌‌​‌​‌‌​‌‌‍similar some federal courts have reached held that has also The Fourth Circuit saying not at all the same as conclusions is only if “the granted habeas relief be is unreason to, the state decision or an state court is able because a circuit court has reached unreasonable contrary conclusion. The First in circuit court jurisprudenсe, and not opinions Ouber v. Guarino24 and the Third Circuit precedent,” “any independent so Tate, (6th 531 Cir. 21. Id. 267 F.3d Mitzel 2001) Billy, (quoting 160 F.3d Herbert v. (6th 1998)). 1135 Cir. Bowersox, (8th 22. Williams v. 340 F.3d 667 Cir.2003). Kansas, Pratt, City 18. Welch v. 214 F.3d (10th Cir.2000) (internal citations Id. at 672. omitted). quotations Godinez, (7th 19. Bocian v. 101 F.3d Guarino, (1st 293 F.3d Ouber 1996). Cir. Cir.2002). Jarvis, 20. Bell v. Cir. banc). 2000) (en jury. Perhaps, come much the as the California Superintendent25 in Matteo v. decision, supporting panel’s Appeal implied, judge to the trial this closer boldly it has case should have told the unique how statutory restric- to remove their buttons. T-shirts with flown the face difficult, pictures to decisions. of the victim would be tion easy. legiti- but buttons are There is no actually of us who have tried Those way mate prevent spectators juries frequently observed cases trial from public showing they feelings. cоmmunicate their how care support about the case and one side This communication is an unavoidable con- other, only they or the even where sit sequence guarantee of the Constitutional sympathy and who look at with “public trial.”26 Sometimes there is hostility. public sym- Public concern and or blue in the wall of brown pathy part for one side or the оther are section, displaying municipal that state or what it for a trial “public.” means to be police great care a deal about the case. courtroom is full of Hells Sometimes the panel’s symptomatic error is of a colors, Angels signifying a concern for deeper problem than misapplication its chair. their brother the defendant’s precedent

Case Details

Case Name: Mathew Musladin v. Anthony Lamarque, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 21, 2005

Citation: 427 F.3d 647

Docket Number: 03-16653

Court Abbreviation: 9th Cir.