427 F.3d 647 | 9th Cir. | 2005
Dissenting Opinion
join, dissenting from denial of rehearing en banc:
I respectfully dissent from the order denying rehearing en banc. We have effectively erased a statutory provision designed to restrict the power of the lower federal courts to overturn fully reviewed state court criminal convictions. And we have sharpened a serious circuit split.
Musladin was convicted of murder, and his conviction was upheld through direct and collateral review in the California courts. The California Court of Appeal carefully and reasonably applied the relevant precedents of the United States Supreme Court, but arguably deviated from the implications of a Ninth Circuit precedent.
In 1996, Congress adopted the Antiter-rorism and Effective Death Penalty Act (AEDPA), amending the standard that federal courts must apply to state criminal convictions in habeas cases. The statute as amended says that we may grant a habeas petition if and only if the last reasoned state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
The California Court of Appeal concluded-that the buttons contained no express message and were unlikely to signify “anything other than the normal grief occasioned by the loss of a family member.”
The statute is quite clear that our task on review of Musladin’s petition for a writ of habeas corpus is not to examine the California Court of Appeal decision as though we were a higher California court. Rather, we exercise a much more limited and deferential review to determine whether the California Court of Appeal acted contrary to “clearly established ... Supreme Court” precedent or “unreasonably]” applied it.
The Supreme Court held in Estelle v. Williams that forcing a defendant to wear prison clothes at trial is “inherently prejudicial” and denies due process.
Dressing the defendant in “prison garb,” the Estelle problem,
The presence of the armed officers in the spectator section in Flynn more closely resembles the facts in our case than does the prison garb in Estelle. Both involve what the jury might perceive as communications from the spectators’ section. But the Supreme Court held that the presence of the armed officers did not deprive the defendant of due process by corroding the presumption of innocence. And the armed officers were far more likely to do so than spectators not associated with the government because, the officers represented the government and might have communicated its judgment that the defendant was dangerous. The Supreme Court held that the armed officers did not deny due process because of the “wider range of inferences that a juror might reasonably draw from the officers’ presence.”
So how did the panel majority manage to reach a different result in the face of Supreme Court decisions plainly leaving room for the California courts’ conclusion and a statute limiting us to Supreme Court decisions? The panel extended a Ninth Circuit case, not a Supreme Court case, Norris v. Risley.
We held in Norris—before AEDPA— that the writ should be granted where several female spectators wore “Women Against Rape” buttons in the presence of jurors in “elevators, in the courtroom, on their way to and from the courtroom,” and while “the women served refreshments outside the courtroom on behalf of the state.”
At least four of our sister circuits have expressly repudiated the error our panel has made. The Sixth Circuit, in Mitzel v. Tate, held that “[w]e may not look to the decisions of our circuit, or other courts of appeals, when ‘deciding whether the state decision is contrary to, or an unreasonable application of, clearly established federal law.’ ”
The Fourth Circuit has also held that habeas relief may be granted only if “the state court decision is contrary to, or an unreasonable application of Supreme Court jurisprudence, and not circuit court precedent,” so “any independent opinions we offer on the merits of the constitutional claims will have no determinative effect in the case before us, nor any precedential effect for state courts in future cases. At best, it constitutes a body of constitutional dicta.”
no reason to presume that state courts are in need of our guidance in interpreting and applying the controlling Supreme Court precedents. Our charge under the statute is only to determine whether the state court’s adjudication of the claims before it was a reasonable one in light of the controlling Supreme Court law.21
Arguably our panel did not create the circuit split ex nihilo. The panel notes that the Eighth Circuit in Williams v. Bowersox
Those of us who have actually tried cases to juries have frequently observed how spectators communicate their feelings. This communication is an unavoidable consequence of the Constitutional guarantee of “public trial.”
There is nothing wrong with the jury knowing that people care about the case and the parties. Typically, the spectators arrange themselves like wedding guests choosing the bride’s side or the groom’s side, with those who favor a party sitting behind the lawyer for that side. In a public trial, the jury can always see that a lot of people care about one side or the other, or that no one cares except the parties and lawyers. Good lawyers often use this to their advantage, and good judges exercise prudence to avoid situations that might intimidate or prejudice the jury. Perhaps, as the California Court of Appeal implied, the trial judge in this case should have told the family members to remove their buttons. T-shirts with pictures of the victim would be difficult, but buttons are easy. There is no legitimate way for judges to prevent spectators in a public trial from showing that they care about the case and support one side or the other, even if only by where they sit and who they look at with sympathy or hostility. Public concern and public sympathy for one side or the other are part of what it means for a trial to be “public.”
The panel’s error is symptomatic of a deeper problem than its misapplication of Supreme Court precedent to spectators’ photo buttons. New things incumbent on powerful government officials are more fundamental than their duty to comply with the legal limitations on their power. Our panel has arrogated to our court power that we do not legitimately possess.
State judges take the same oath to uphold the Constitution that we do and perform the same work we do, construing Constitutional provisions and applying them to the facts before them. We do not sit as a state appellate court. One problem they sometimes have is deciding what to do about lower federal court decisions. Obviously they have to follow United States Supreme Court decisions, and they construe them as routinely as we do. Obviously they do not have to follow federal decisions on questions of state law.
Our panel’s error creates uncertainty and inconsistency for the nine state court systems and nearly 20% of our nation’s population within the Ninth Circuit. Must they follow our decisions when they think our decisions are contrary to or unreasonable applications of Supreme Court precedent? The statute tells them one thing, we tell them another, and the briefs they get will tell them both. Under the plain statutory language, state courts are free to ignore our decisions. But under the panel’s decision, they must follow them. We have effectively turned ourselves into the supreme court of the nine states in our circuit. I therefore dissent.
. 28 U.S.C. § 2254(d)(1) (emphasis added).
. See 2A Norman J. Singer, Sutherland on Statutes and Statutoiy Construction Part V, subpart A (6th ed.2000).
. People v. Musladin, No. H015159 at 21 (Cal.Ct.App.1997).
. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).
. Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986).
. People v. Musladin, No. H015159 at 22.
. 28 U.S.C. § 2254(d)(1).
. Estelle, 425 U.S. at 530 n. 10, 96 S.Ct. 1691.
. Flynn, 475 U.S. at 568-69, 106 S.Ct. 1340.
. Estelle, 425 U.S. at 503, 96 S.Ct. 1691.
. See id. at 518, 96 S.Ct. 1691 (Brennan, J., dissenting) ("Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt.”).
. Flynn, 475 U.S. at 569, 106 S.Ct. 1340.
. Id. at 567, 106 S.Ct. 1340.
. Norris v. Risley, 918 F.2d 828 (9th Cir.1990).
. 28 U.S.C. § 2254(d)(1) (emphasis added).
. Norris, 918 F.2d at 829.
. Mitzel v. Tate, 267 F.3d 524, 531 (6th Cir.2001) (quoting Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998)).
. Welch v. City of Pratt, Kansas, 214 F.3d 1219, 1222 (10th Cir.2000) (internal citations and quotations omitted).
. Bocian v. Godinez, 101 F.3d 465, 471 (7th Cir.1996).
. Bell v. Jarvis, 236 F.3d 149, 162 (4th Cir.2000) (en banc).
. Id. at 162.
. Williams v. Bowersox, 340 F.3d 667 (8th Cir.2003).
. Id. at 672.
. Ouber v. Guarino, 293 F.3d 19, 26 (1st Cir.2002).
. Matteo v. Superintendent, 171 F.3d 877, 889-90 (3rd Cir.1999).
. U.S. Const. amend. VI.
. See generally 20 Am. Jur. 2D Courts § 225 (1965) (noting that state courts free to ignore a federal ruling on a state law); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (holding that federal courts are bound by state interpretations of state law); Collier v. Bayer, 408 F.3d 1279, 1283 n. 4 (9th Cir.2005) ("Federal courts of appealfs] may not review state courts' interpretations of state law.'').
. See Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n. 11, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); see also Lockhart v. Fretwell, 506 U.S. 364, 375-76, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Thomas, J., concurring) ("In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located."); People v. Williams, 16 Cal.4th 153, 190, 66 Cal.Rptr.2d 123, 940 P.2d 710 (1997) (recognizing that decisions of lower federal courts interpreting federal law are not binding on state courts).
Dissenting Opinion
join, dissenting from the denial of rehearing en banc:
I join Judge Kleinfeld’s dissent from the denial of rehearing en banc. I write separately to underscore that it was not an “unreasonable application of clearly established federal law” for the California Court of Appeal to deny habeas relief notwithstanding its determination that the wearing of victims’ photographs in a courtroom constitutes an “impermissible factor coming into play.”
The panel opinion suggests that, once the California Court of Appeal “specifically found ‘the wearing of photographs of victims in a courtroom to be an “impermissible factor coming into play,” ’ ” Musladin’s conviction could not stand. See Musladin v. Lamarque, 403 F.3d 1072, 1076 (9th Cir.2005) (panel’s emphasis). The rationale offered in support of this conclusion is that, “[ujnder Williams and Flynn,” the finding of an impermissible factor coming into play “in itself establishes ‘inherent prejudice’ and requires reversal.” Id.
The panel opinion misconstrues Williams and Flynn. In Williams, the Court established that putting a defendant on trial in prison garb is constitutional error of the variety amenable to harmless-error analysis. See Williams, 425 U.S. at 507-09, 96 S.Ct. 1691 (adopting the position of the Fifth Circuit that “the harmless-error doctrine is applicable to this line of cases”); 3B Charles Alan Wright et al., Federal Practice and Procedure § 855, at 477 & n. 8 (3d ed.2004). When the Court in Flynn “reaffirmed its holding in Williams,” see Musladin, 403 F.3d at 1075, it did not, of course, transform “courtroom arrangements challenged as inherently prejudicial” into structural errors, Flynn, 475 U.S. at 570, 106 S.Ct. 1340. Rather, Flynn suggested that, to obtain a conviction’s reversal, a defendant must show “actual prejudice” even after successfully demonstrating that the challenged courtroom arrangement was “inherently prejudicial.” See id. at 572, 106 S.Ct. 1340 (“[I]f the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” (emphasis added)).
Accordingly, it was a reasonable application of Supreme Court precedent for the California Court of Appeal to determine that, although in its view the wearing of victims’ photographs in a courtroom is inherently prejudicial, the button-wearing in this case did not actually deprive Musladin of his right to a fair trial.
Lead Opinion
ORDER
The petition for panel rehearing is DENIED.
The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonreeused active judges in favor of en banc reconsideration. Fed. R.App. P. 35. The request for rehearing en banc is DENIED.