Mathew Musladin v. Anthony Lamarque, Warden

words, possible it is Flynn, in other Under “inherently prej- that is

to have situation inherently prejudicial not “so

udicial” but unacceptable threat pose [a]

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

defendant’s added).

phasis applica- a reasonable

Accordingly, was precedent for the

tion of to determine Appeal

California Court of

that, in its view the although in a courtroom is in- photographs

victims’ button-wearing in

herently prejudicial, the actually deprive

this case did not 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. Portman, appeals Musladin the district Public De- Mathew Federal Barry J. Fermino, petition his for a writ of court’s denial of fender, David W. Assistant and Defender, Francisco, He contends that the but- corpus. habeas San Public Federal individual’s by tons worn the deceased CA, petitioner-appellant. for the created an family members at his trial Attorney Lockyer, General Bill factors unreasonable risk Anderson, California, R. Robert State and that the state court play, into General, Attorney Gerald Assistant Chief objectively denying unreasonable Attorney Assistant Gen- Engler, A. Senior appeal and in the this claim both on direct Pruden, Attorney eral, Deputy R. Glenn light post-conviction proceedings. Ott, General, Deputy A. At- Gregory and law set forth clearly-established federal Francisco, CA, General, for the torney San Court, au- Supreme persuasive and respondent-appellee. concerning from this court thority law, that application of that we hold proper of the state the last-reasoned decision applica- an unreasonable court constituted Accordingly, law. Supreme tion of district court’s denial of we reverse the for issu- petition Musladin’s and remand REINHARDT, THOMPSON, Before ance of the writ. BERZON, Judges. and Circuit Background I. Factual and Procedural AND OPINION ORDER History in a charged Musladin was California ORDER for degree state court with first murder April on opinion and dissent filed Studer, of his killing of Tom the fiance appearing at 403 slip op. 13, 1994, May Pamela. estranged wife On (9th Cir.2005), withdrawn. It F.3d Pame- Musladin came to the house where by or to this may precedent cited as not be la, Studer, Michael and Pamela’s brother court of the Ninth any court or district pick up to his son Albaugh lived order file the attached Circuit. The clerk shall Pamela scheduled weekend visit. opinion place. in its and dissent that she and Musladin had an testified argument, pushed and that Musladin her Pamela, ground. According to the OPINION came out of the Albaugh when Studer REINHARDT, Judge. Circuit her, house to assist Musladin reached grab gun the central his car to and fired two shots At a trial in which murder contends, Studer, him. killing acted in at question the defendant is whether however, self-defense, that after Pamela fell a defendant’s constitu- are ground, Albaugh appeared, rights tional when are Studer violated respectively, and a machete depicting holding gun permitted to wear buttons him. and threatened Musladin asserted deceased individual? We conclude that, he shot in seeing weapons, after under out of fear general direction Studer law such a interferes with Accordingly, at trial Mus- impartial jury fair trial for his own life. right to a argued imperfect self- perfect free from influences. ladin outside in determining federal law ly-established Musla- dispute There is no defense. Studer, a fair trial not violat- al- that his that killed fired the shot din wearing of the family ed members’ agree for both sides though experts depicting the deceased. The dis- a ricochet the result of fatal shot petition the and this trict court denied hit. Musla- than a direct Under rather defense, followed. appeal there was no crime theory of din’s thus, and, no victim. II. The AEDPA Standard trial, family 14-day the Studer’s During corpus is petition Musladin’s for habeas gallery. the On front row of sat the and Ef- governed by the Anti-Terrorism three mem- days, those 14 at least each of (AEDPA). Penalty Act fective Death buttons on their family wore bers Therefore, relief may grant we habeas on photograph the deceased’s shirts with court to the defendant unless the state submit- According to declarations them. to, “contrary or involved decision defendant, the buttons ted of, clearly estab- application unreasonable “very no- in diameter and several inches law, as determined lished Federal Furthermore, family mem- ticeable.” States.” 28 Supreme Court United directly be- in the row were seated bers 2254(d)(1). § state courts Because U.S.C. in clear view of prosecution and hind the that offer no “postcard” often issue denials statements, jury. opening Before dispositions, rationale for their we deter- requested that for Musladin counsel unreasonably mine whether the state court family members to instruct the judge trial by looking law to the “last applied federal court, wearing the buttons refrain from of the state court as the reasoned decision expressive the button’s out of fear judgment.” court’s basis of the state jury prej- influence the content would Johnson, 1223, 1233 Franklin v. 290 F.3d judge The trial udice Musladin’s defense. (9th Cir.2002). n. 3 was convict- request. Musladin denied opinion murder and three other to the degree of first In this we look ed Appeal on direct related offenses. the California Court appeal. state exhausted the available Musladin clearly-es AEDPA limits the source direct review and on

procedures both on Supreme to Court tablished federal relief. The California post-conviction 2254(d)(1). held, § Nev appeal eases. See 28 U.S.C. Appeal on direct Court 560, ertheless, precedent recognize Flynn, 475 U.S. citing Holbrook v. court, 1340, any or other federal circuit L.Ed.2d 525 from this 106 89 court, has value our effort (1986), persuasive consider the wear- that: “While we particular state in a court- determine “whether of victims photographs applica an ‘unreasonable factor court decision is ‘impermissible to be an room law, ... what Supreme Court should tion’ play,’ which ‘clearly established.’ Duhaime the buttons law is discouraged, we do not believe (9th Ducharme, 597, 600 Cir. 200 F.3d defendant ‘with this case branded 2000); Ignacio, Robinson v. 360 eyes in the see also guilt’ unmistakable mark of (9th Cir.2004) (“When 1044, 1057 petition then filed a F.3d jurors.” may turn to a novel situation we corpus the District faced with for a writ of habeas decisions precedent, our own as well as the District of Califor- Court for the Northern courts, in order to deter of other federal alleged, among things, nia. He the state decision violates unreasonably applied clear- mine whether state enunciated general principles criminal defendant prison garb wear contrary and is thus jury, shackles before the see Estelle v. law.”); federal Bowersox, Williams v. (1976), L.Ed.2d 126 in permitting (8th Cir.2003) (“[T]he objective reasonable rape anti-rape at a trial to wear ness of a state court’s of Su buttons, see Risley, Norris v. 918 F.2d 828 may preme precedent be established (9th Cir.1990). Because we conclude that by showing having similarly other circuits no significant difference exists between the applied precedent.”); Ouber v. Guari circumstances of this case and the “unac- (1st Cir.2002) (“[T]o no, ceptable risks” found to exist in Williams inferior federal the extent that courts have Norris, we hold that the state court cases, factually decided similar reference unreasonably applied Supreme established appropriate to those decisions is assess in denying Court law Musladin relief. ing the reasonableness vel non court’s treatment of the contested issue.” Clearly a. Established Federal Law (internal quotation marks and citation omitted)); Superintendent, Matteo v. SCI underlying The federal this (3d Cir.1999) Albion, 877, 890 practices case—that certain attendant (“[W]e do not believe federal habeas courts the conduct of a trial can such create precluded considering are from the deci “unacceptable impermissible risk of factors sions the inferior federal courts when coming play,” into “inherently as to be evaluating appli whether the state court’s prejudicial” to a criminal defendant—-was reasonable.”) (en cation of the law was Supreme banc). Williams, 501, in Estelle v. 425 U.S. 96 1691, (1976), S.Ct. 48 L.Ed.2d 126 III. Discussion 560, Flynn, Holbrook v. 475 U.S. 106 S.Ct. process requires “Due 1340, (1986). Williams, 89 L.Ed.2d 525 In accused an impartial receive fair trial the Court compelling considered whether jury Shep free from outside influences.” criminal appear defendant to jury at his Maxwell, 333, pard 362, 384 86 U.S. trial dressed in prison clothing violated his (1966). 1507, S.Ct. 16 L.Ed.2d 600 The right to a fair trial. See 425 Supreme Court has held that when the 503-06, at U.S. 96 S.Ct. 1691. The Court consequence of a courtroom found compelled that the wearing prison that an “unacceptable presented risk is clothing imper- constitutes a continuous impermissible coming factors play,” into jury missible reminder to the of the defen- there prejudice” is “inherent defen dant’s custody condition: an accused in dant’s constitutional to a fair trial who post is unable to bail. Id. at 96 required. Flynn, reversal is S.Ct. 1691. The Court held that the influ- at In order to S.Ct. 1340. deter ence of prison clothing, and the message it mine whether Musladin is entitled to fed conveys jurors, impairs a defen- relief, eral habeas we must therefore as presumption dant’s of innocence. id. See sess depicting whether the buttons at Noting S.Ct. 1691. these and by spectators deceased individual worn at concerns, other the Court concluded that posed the trial impermissible a risk of clothing because defendant’s coming “[t]he factors into that is is so play similar to previously likely those to be a continuing through- found to exist influence circumstances, such in compelling a out the trial ... an unacceptable risk is involved the coming factors impermissible presented rule in assess- prejudice” “inherent Court’s 1691. at play.” Id.

into by audience whether buttons worn ing hold- its the court reaffirmed In an “unac- during a trial created members the “inherent regarding ing in Williams factor com- impermissible risk of ceptable that cre- practices courtroom prejudice” Norris, ing play.” into See risk of “unacceptable ate was fac- the defendant 831-32. distin- play,” but factors charge rape. During a criminal the facts. before it on the case guished trial, spectator’s women sat in the several that the Flynn argued defendants that read “Women gallery wearing buttons troopers uniformed state of four presence noted that Rape.” Id. at 829. We Against directly row behind sitting in the front trial, approxi- time in Norris’s any given jury to draw adverse at trial led the them audience would mately three women Flynn, 475 U.S. about them. inferences Id. at anti-rape buttons. ex- 1340. facts, applied Faced these “courtroom there are certain plained that “[j]ust as the and concluded Williams inherently might find practices [that it] during compelled wearing prison garb security that the use of but prejudicial,” impermissible can an influence trial create fall involved did not to the extent officers throughout trial the buttons’ jury, on the 106 S.Ct. category. Id. into continuing ... re- message constituted the “infer- explained, As the Court 1340. believed minder that various reasonably draw juror might that a ences eroding guilt proven, it was Norris’s before in that case presence” officers’ from the of innocence.” Id. presumption is defendant] ... that [the “need not be of the button’s explained, because As Id. dangerous culpable.” or particularly imper- its purpose, communicative obvious Williams, from distinguishing Flynn far more clear and message missible jury may out that pointed the Court than that deemed unlawful direct guards noticed that extra not even have Williams: trial, likely, or most being used Thus, subtle than though far more inference from impermissible no drew accusation, the buttons’ direct stated, court presence. their dangerous precisely more was all the granted are doubtless taken “[guards] not a formal accusation. because it was weaponry or do long as their numbers so evidence, which direct Unlike the state’s or official concern suggest particular not any manner refuted could have been 106 S.Ct. 1340. alarm.” Id. judged ulti- contrary testimony to be “inherently prejudicial” concerning law of each declarant’s mately on the basis con- practices of courtroom which nature accusa- informal credibility, the buttons’ however, message, vey an to traditional susceptible tion was unchanged and clear. remained Instead, the ac- of refutation. methods unchallenged, lending cusation stood Risley, in Norris v. This court’s decision case credibility weight to the state’s (9th Cir.1990), persuasive has F.2d 828 subject the constitu- being without meaning of of the value an assessment evidence to which such protections tional clearly-estab- that was the federal subjected. ordinarily is Flynn and wheth- by Williams lished Id. at 833. of that law application court’s er the state appropriate is reliance on Norris objectively unrea- Our

in the case before us is state the last reasoned for another reason: Norris present Like the sonable. setting identified Norris opinion coming play,” court tor into the practice of operative discouraged, forth the law as announced which should be we do not Court, and the believe the state court this case branded defendant “with an sought apply reaching Norris when its unmistakable mark Indeed, guilt” eyes jurors. of the determination. state court’s of federal application unreasonable law lies Musladin, People No. H015159 at 21-22 test, in misapplication its of the Williams 1997) (Cal.Ct.App. Dec. (unpublished de- explained as it to the facts cision) (citing Flynn, 475 U.S. at of this case. 1340). By disposing decision to of Musladin’s claim in apply

The state court’s Nor- manner, ris, above persuasive weight ours to afford it state court unreason- ably applied by imposing federal law determining when the federal law as estab- additional and unduly require- burdensome are particularly signifi- lished ment—demanding that challenged light striking cant in factual similari- practice cause “branding]” of the de- present ties between Norris and the case. fendant Bowersox, “unmistakable mark See Richardson v. (“In guilty”—even though (8th Cir.1999) the Williams test for determining wheth- finding prejudice” “inherent already had er a state court’s decision involved an un- been met. The specifically found reasonable estab- “the photographs victims in a law, appropriate lished federal to refer ‘impermissible courtroom to be an factor decisions inferior federal courts in added). play’ (emphasis Un- cases.”). factually similar der Williams and finding, Application b. itself prejudice” Unreasonable The Law establishes “inherent and requires reversal. Although the state court identified Flynn Williams and cannot be distin- apply adjudi the correct federal law to in guished. us, In the case before claim, cating citing Musladin’s Williams court only found not that an “unreasonable controlling principle, for the properly and risk” impermissible existed that an factor looking to our in decision Norris as a ruould come into play, but that an imper- persuasive application of that federal law missible factor actually had come into play. factually in a similar the state court Nevertheless, after setting forth this find- objectively unreasonable both in its that, ing, the state court added although ultimate conclusion and it rationale practice wearing such buttons employed denying appeal. Musladin’s “should discouraged,” Musladin was not Appeal justified The California Court of its entitled to relief because “the rejection of Musladin’s claim as follows: this case [did not] defendant brand[ ] ‘with contrast to the buttons in [i]n an unmistakable mark of guilt’ eyes conveyed by to be the Stu jurors.” of the The state court was unrea- family wearing der buttons is than less in imposing sonable require- this additional simple photograph clear. The of Tom ment it after had concluded that the “in- unlikely to Studer was have been taken prejudice” herent elements had already sign anything as a other than the fully been established. grief normal occasioned the loss of a family member. While we consider the The Supreme Court announced in photographs victims a Flynn Williams and that following a find- “impermissible courtroom to be an fac- unacceptable of an impermissi- risk of prison clothing would play, pelled donning no further coming into factors ble ‘with an “brand[ the] defendant unmistak- necessary practice because showing eyes mark of in the guilt’ able “inherently prejudicial.” is then deemed Rather, court’s concern was jurors.” Here, flouted rule: state clothes’ role a purely directed at the challenged practice not required that accused’s “constant reminder of the condi- unacceptable risk of an only constitute an throughout “continuing tion”—a influence play but factor trial,” require- principally because an the defendant with also that it “brand” prison ment that defendants wear clothes guilt.” mark of This addi “unmistakable only those “operates usually against who high and unrea tional test too too imposes to trial.” post prior cannot bail defendants and is sonable on burden at 1691. At 425 U.S. 96 S.Ct. contrary Supreme Court to established most, found the Williams Court that the Lambert, law. See Benn v. shackling prison and clothes “unmis- (9th Cir.2002).1 1051 n. 5 separate takable indications of the need “branding” with We note that community at large,” a defendant from the guilt” language mark of em- “unmistakable they not that “brand” the defendant would only a descrip- constituted ployed Flynn guilt.” mark of “unmistakable tive comment. See 569, 571,106 Flynn, 475 S.Ct. 1340. U.S. Williams, 425 (quoting U.S. Although that brands defen- J., (Brennan, dissent- guilty surely dant as would be sufficient to Flynn ing)).2 Both are clear Williams prejudice” re- demonstrate “inherent standard, sug- legal as to the neither reversal, branding necessary is not quire necessary. In- gested “branding” prejudice. establishing element of such deed, interpreta- court’s under the state imposition The state court’s addi- tion, holding “branding” requirement Williams would tional con- trary to federal survive test. The Williams Court its own found, constituted an unreasonable implied, the com- never or even guilt.” showing say a with an unmistakable mark 1. This is that of actual not Williams, 518, Flynn challenge. a prejudice role in has no U.S. at 1691 425 Norris, required is (Brennan, J., added). As we reversal if a (emphasis held in dissenting) prove actual or defendant can either inherent repeated majority was the When it Norris, 828; prejudice. 918 F.2d at ac See already the defendant’s chal- had dismissed 1457; Woods, at see United cord 923 F.2d also lenge, simply noting in the alterna- was Halliburton, 557, (9th 560 States "[ejven jurors the been aware tive that had 1989) (“If jurors’ the Cir. we find that brief troopers not deployment the was com- in view of in handcuffs was not Halliburton Island, Rhode cannot mon herently we must then prejudicial, determine troopers of the four tend- believe the use carried his appellant whether has burden eyes respondent ed to brand in their 'with an prejudice.”). affirmatively showing actual ” Flynn, guilt.’ unmistakable mark of Williams, (quoting 425 S.Ct. 1340 was 2. Justice dissent in Williams Brennan’s (Brennan, J., dis- U.S. at 96 S.Ct. 1691 em- the first time a member senting)). Flynn that in order to never stated language. "branding” ployed Justice the required to regardless prevail the defendant was meet explained that of whether Brennan not, Rather, may simply prison clothing compelled or the it was that standard. have adversely clothes affects refuting of those contention that been the defendant’s innocence, presumption of be- defendant's challenged practice the described ef- had the cause, among things, clothing the “sure- fect. eyes jury ly in the tends brand him that the mur- charged that law.3 defendant was dering him represented as the inno- Moreover, finding by the the California Here, party, cent or the victim. the direct beyond Appeal goes finding the buttons, link between the the reversal Nor- require that was held buttons, defendant, wearing the the ris. The state attempted to distin- allegedly the crime that the defendant Norris, Norris simply cannot guish but committed was clear and unmistakable. reasonably distinguished. message The primary trial issue Musladin’s conveyed present in the case is even the whether was defendant or the de- stronger prejudicial and more than the one aggressor. ceased individual who the conveyed in Norris. The state court un- essentially “argue” The buttons that Stu- reasonably justified by its conclusion stat- party der was the innocent the that, compared to the buttons when necessarily guilty; defendant was that the Norris, by spectators worn the “mes- defendant, Studer, was the initiator of conveyed family the sage Studer wear- attack, and, thus, perpetrator than clear.” This ing buttons is less is criminal act. simply Just as we held that not the case. anti-rape sent buttons message California court’s belief that buttons substantially more direct and clear depicting the deceased individual were message conveyed by prison than “unlikely sign to have been taken aas Norris, see clothing anything other than normal grief occa- conveyed by family the but- sioned the loss member” is depicting tons in the case before us Studer even more incorrect as a matter of law substantially direct and clear than than the interpreting more view that the “Wom- buttons in Norris. Rape” buttons in Norris served anti-rape against that of the In Norris, expressed purpose no other than women announcing wearer’s position against rape specify general but did not against rape statement or ex- with, pressing solidarity for, the defendant or the victim. this support or actually depicted rape the buttons the individual victim Norris’s case.4 consistently granted jurors’] eyes We have relief in this dant] [the with an unmistak- Williams-Flynn grounds guilt,’ circuit on without they able mark of or when create 'an requiring unacceptable the defendant to show that the chal- .... risk factors lenged practice added) (inter- "branded” him with "an un- play.' (emphasis See, guilt.” e.g., Thus, omitted)). mistakable mark of branding may nal citations 831; Olvera, 918 F.2d at United States v. establishing be an alternative means of a vio- Cir.1994) ("We (9th lation, F.3d conclude requirement but it is not an additional challenged practice] posed that [the an unac- imposed to be already after the violation has ceptably high influencing jury’s risk of been established under the traditional judgment a that undermined in manner the Williams-Flynn standard. innocence.”). presumption Although we of have a proving found that mark of unmistak- 4. Even if we showing concluded that a of guilt prejudice, able solidarity primary is to establish was the effect the but- of sufficient necessaiy. we have never held that it is To tons in Nonis or the buttons worn the contrary, may the family we have noted that it serve deceased individual's in this such test, an showing alternative to basic the which remains would not be inconsistent with the the conveying message traditional which we deter- standard of a about the defendant prejudice. guilt. mine the existence of inherent See or his The Eleventh Circuit considered (9th Woodford, defendant, question Williams a similar when a accused Cir.2004) ("The Supreme killing prison guard, challenged pres- Court has said that the security inherently prej- measures at trial are ence of uniformed in officers the audience at decision, they udicial when post-Flynn ‘tend[ ] to brand defen- [the his trial. In a the Elev- Rather, that law wearing application of the law. its the not excuse We did Norris, contrary and it to the Court’s established ground that was on buttons light objectively was unreason- unreasonable rule law and objectively here, to do so the district Norris for Accordingly, the state court able. reverse In at 831. both See petition court’s denial of Musladin’s us, the case Norris and the before habeas and remand for issuance corpus beyond the requires the courts to look un- the writ. shall released Musladin reflects and to general button re-try sentiment the him within 90 less state elects that specific message the determine the the days of the issuance of mandate. particular conveys light button Reversed and Remanded. jury. Doing so issues before the

facts and jurist here, would be com a reasonable THOMPSON, Judge, Circuit Senior that the buttons worn pelled to conclude dissenting: conveyed family members the Studer’s guilty, that the defendant message respectfully I dissent. by spectators

just the buttons worn as A facts seems further statement the Norris did in that case. Musladin, petitioner, appropriate. wife, Pam, sepa- his but married IV. Conclusion the which rated the time of crimes of wearing depict- the of buttons finding living Musladin convicted. Pam was to be an “im- individual the deceased at her house with her brother mother’s play,” into the permissible factor Studer, Albaugh, Michael her fiancé Tom at which point reached the the state court Musladin, three- and Garrick her then further and con- Supreme Court “went no day of year-old by Musladin. On the son practice[at wa]s issue un- cluded that house Musladin went to the shooting, Flynn, constitutional.” for a week- pick up Garrick scheduled relief, granting 1340. Instead of end visitation. court, however, disregarding the prosecutor presented evidence question fact central was one of that the argument Pam self-defense, ensued between unreasonably stated that the driveway, during which Musladin conveyed through ground Pam to pushed Musladin in this was not clear as buttons case Albaugh, in his gun in reached for a car. conveyed by anti-rape driveway, yelled, got “He’s standing in the Norris. The state court then unreason- up ran the drive- gun.” Pam and Studer ably “branding” defendant held Pam and way. gun fired guilt” mark of with “an unmistakable Studer, hitting Studer the back grant though even necessary to relief into and out Pam ran the house fac- shoulder. already “impermissible had found that ground back fell to the jury. door. Studer play tors” had come before a truck to crawl underneath simply engage attempted did The state court ga- garage. in the Musladin entered incorrect the they to wanted to communicate the officers’ act of enth Circuit held that jury they] conviction fol- solidarity inherently prejudicial ... wanted a showing [that was penalty. imposition of the death granted the writ: “The lowed the to the defendant and help mes- jury the The could not but receive this case were there for one reason: officers in 1454, Dugger, solidarity sage.” v. hoped with the Woods they to show killed Cir.1991). (11th appears part, it that 1459-60 correctional officer. In 662 guilt proven, a second which it eroding and fired shot rico- before

rage the head, of killing presumption him. innocence.” Id. cheted into Studer’s Here, the were to buttons three four a different version presented and, for except inches diameter the shooting He of these events. admitted picture, deceased victim’s there noth- him, killing perfect Studer and but claimed conveyed on them. The else buttons He imperfect self-defense. testified “message.” appellate no the As state Albaugh he carrying that believed stated, simple photograph court “The and that he gun, machete Studer unlikely Tom have Studer was to been both out of for fired shots fear his life. a sign anything taken as than the shots, in his firing got After the he car and grief normal occasioned loss of a the away. drove family member.” Musladin was tried and convicted of Further, it distinguish is difficult to this first-degree murder of Studer and at- case the from routine situation a de- tempted murder of Pam. family members, ceased victim’s without disagree majority’s I with the reliance buttons, sitting group as a in a courtroom upon Risley, our v. decision Norris 918 trial. during a Jurors such a trial sure- (9th Cir.1990), F.2d 828 for the ly recognize group would the for what it is. in this case of the rule of Estelle v. addition buttons worn them Williams, 501, 1691, 96 48 U.S. S.Ct. showing only photograph the victim’s (1976). L.Ed.2d 126 the possible would little if anything any add to Court determined to have been a viola- impermissibly risk of prejudicing jury. the to a tion fair trial Although appellate state to have compelled the defendant to wear present case commented that it “consid- 505, prison clothing during trial. his Id. at of the photographs er[ed] prison S.Ct. 1691. The Court held ‘impermis- in a victims courtroom be an clothing impaired pre- the defendant’s play,’ sible factor sumption present of innocence. In the Id. discouraged,” which should be quoting permitted the state court relatives the “impermissible language factor” from deceased victim wear buttons the Williams, 425 U.S. at 96 S.Ct. 1691 courtroom. The buttons only disclosed (which quoted also else, picture, nothing deceased victim’s Holbrook U.S. nothing had to do the defendant. (1986)), 89 L.Ed.2d 525

Our Norris case was a case involving “impermissible state court’s factor” com- three women reasonably who wore buttons the ment is most as understood courtroom during defendant’s trial for reflecting court’s view that buttons rape, but that case is not controlling here. bearing photograph victim’s not should in Norris two were and one- be worn in a courtroom. The comment did half inches in change diameter and bore the words the buttons or make them Against Rape.” Moreover, “Women something they not. at 830. ‘rape’ word “[T]he [was] under- state court’s additional comment that the lined with a broad red stroke.” Id. not “brand[] We buttons did defendant ‘with message, stated: buttons’ which im- guilt’ “[T]he unmistakable mark of is most plied that raped reasonably Norris the complaining explanation understood as an witness, a continuing constituted inherently reminder the buttons were not “so prejudicial various believed pose unacceptable Norris’s fair Hol to a trial.” to [the] threat brook, 572, 106 475 U.S. at BELMONTES, Jr., Fernando sum, I do decision not believe Petitioner-Appellant, “con Appeal Court of

the California v. ap to, an unreasonable trary or involved of, Federal plication clearly established Warden, STOKES, for the Cali John law, Court as determined Quent at San fornia State Prison See 28 U.S.C. of the United States.” in,* Respondent-Appellee. 2254(d)(1). § court’s decision The state law, “contrary any such federal not to” No. 01-99018. “ a ‘appl[y] not the state court did because Appeals, United States Court law set governing contradicts the rule that ” Ninth Circuit. cases,’ did [Supreme nor Court] forth “ facts set of ‘confront[ ] the state 24, 2005. Oct. from indistinguishable materially that are Supreme] [the decision Sacramento, Esq., Christopher Wing, H. at a result different arrive[] nevertheless CA, Esq., Valley, Multhaup, Eric Mill S. precedent.’ Lock [Supreme Court] from CA, Petitioner-Appellant. for Andrade, 63, 73, 123 S.Ct. yer v. 538 U.S. Johnson, Anthony Esq., AGCA— Mark (2003) (quoting 155 L.Ed.2d General, Attorney Office California Taylor, 529 U.S. Williams Justice, Sacramento, CA, Department (2000)). L.Ed.2d Respondent-Appellee. decision does the state court’s Nor application” the “unreasonable abridge REINHARDT, O’SCANNLAIN, Before 2254(d)(1). § “The of 28 clause U.S.C. PAEZ, Judges. Circuit requires application’ clause ‘unreasonable be than court decision to more ORDER The or state court’s incorrect erroneous. law must application of CALLAHAN, Judge, whom Circuit Lockyer, objectively unreasonable.” GOULD, KLEINFELD, O’SCANNLAIN, (internal 123 S.Ct. 1166 TALLMAN, BEA, BYBEE and Circuit omitted). Here, even if errone- citations join, dissenting from denial of Judges, (which not), it was California ous rehearing en banc: “objectively Appeal’s decision a vote on whether judge requested A unreasonable.” case failed this case en bane. The rehear also asserts number petitioner majority votes to receive argues habeas claims that he merit in favor of en judges active nonrecused well, reject I those claims as relief. would P. 35. R.App. consideration. Fed. banc court. thus would affirm district rehearing en is de- request for banc nied. a deni- dissent from respectfully again

I rehearing Mr. Belmontes’ al of en banc * Quentin. R.App. P. See Fed. at San predecessor, for his Prison Stokes is substituted John Brown, 43(c)(2). State Jill L. as Warden California

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 653

Docket Number: 03-16653

Court Abbreviation: 9th Cir.