Musladin v. Lamarque, 03-16653.

• Decision Date: 21 October 2005
• Docket Number: No. 03-16653.,03-16653.
• Citation: 427 F.3d 647
• Parties: Mathew MUSLADIN, Petitioner-Appellant, v. Anthony LAMARQUE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 647

427 F.3d 647

Mathew MUSLADIN, Petitioner-Appellant, v. Anthony LAMARQUE, Warden, Respondent-Appellee.

No. 03-16653.

United States Court of Appeals, Ninth Circuit.

October 21, 2005.

David W. Fermino, Esq., Federal Public Defender's Office, San Francisco, CA, for Petitioner-Appellant.

Gregory A. Ott, Esq., Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee.

Before REINHARDT, THOMPSON, and BERZON, Circuit Judges.

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 nonrecused active judges in favor of en banc reconsideration. Fed. R.App. P. 35. The request for rehearing en banc is DENIED.

KLEINFELD, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges, 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 Antiterrorism 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."¹ Our decision in this case has the practical effect of erasing the statutory phrase "as determined by the Supreme Court of the United States." Our tools for statutory construction are many,² but they do not include an eraser. Yet here we go, erasing the "clearly established" phrase and expanding the "as determined" phrase. The statute in nine states now says, as a practical matter, "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, giving `persuasive weight' to Ninth Circuit decisions that have applied Supreme Court decisions." We do not have that legislative authority.

The facts of this case and of the controlling precedents show just how clear our mistake is. Musladin, embroiled in a custody dispute with his estranged wife, murdered her new fiancé. At his trial, three members of the fiancé's family sat in the spectator section of the courtroom wearing buttons with his picture on them. The buttons were two-to-four inch pictures of the victim but had no words. Musladin argued in his state court appeal and petition for review that the buttons denied him due process of law by eroding his presumption of innocence.

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."³ The California Court carefully examined Estelle v. Williams⁴ and Holbrook v. Flynn⁵ (the relevant Supreme Court decisions) and Ninth Circuit cases. Though the Court of Appeal noted that button wearing should be "discouraged," it held that the buttons did not amount to a denial of due process because they did not brand Musladin "with an unmistakable mark of guilt."⁶

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 "unreasonabl[y]" applied it.⁷ The only question for us is whether there is any Supreme Court authority that holds that silent signals of affiliation by spectators in a courtroom deny a defendant due process by eroding his presumption of innocence. The answer is that there is no such case. That should be the end of our inquiry.

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.⁸ It held in Holbrook v. Flynn that the presence of several armed uniformed officers in the spectators' row directly behind the prisoner is not inherently prejudicial.⁹ Neither of these cases holds that a spectator's symbol of affiliation or even opinion denies due process to a defendant.

Dressing the defendant in "prison garb," the Estelle problem,¹⁰ is not analogous to spectators wearing buttons. First, prison garb is an unambiguous statement that the defendant is already a prisoner. Second, it is a communication to the jury of the government's determination—not a non-governmental spectator's—that the defendant belongs in jail. The buttons, by contrast, are ambiguous. They may mean "we really want this defendant punished because we care a lot about his victim," or they may merely mean "we care a lot about the victim," without an implication that the defendant is the proper person to be punished. Even more important, the spectators' buttons do not imply any determination by the government. Even if the buttons did imply that the spectators wanted the defendant punished, that would not be as corrosive of the presumption of innocence as the government saying "this defendant belongs in jail and he is already there because of our determination." Unlike the spectators' buttons in this case, the prison garb in Estelle detracted from the presumption of innocence and from the defendant's dignity in the courtroom.¹¹

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."¹² The courtroom cannot be totally free of indications that the state thinks the defendant is guilty, for "jurors are quite aware that the defendant appearing before them did not arrive there by choice or happenstance."¹³ With these two Supreme Court cases as bookends—showing what denies due process and what does not—the California courts were well within the bounds of reasonable interpretation in determining that this case is more like Flynn. The buttons with a picture of the dead fiancé did not say or obviously imply that the defendant killed him, just that the spectators wearing them cared about him.

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.¹⁴ But the statute says we cannot do that, with the express restriction "as determined by the Supreme Court of the United States."¹⁵ The panel evades that restriction by holding that we give "persuasive weight" to Ninth Circuit cases when determining what is "clearly established Federal law, as determined by the Supreme Court." The panel's proposition means that we will grant writs based on precedents other than those of the Supreme Court. Ergo, the statutory restriction on our power is erased.

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."¹⁶ California could properly decide the case at bar by distinguishing Norris, disagreeing with Norris, or in complete ignorance of Norris. Under AEDPA's restriction to Supreme Court decisions, we are obligated to deny the writ so long as the California decision was not contrary to or an unreasonable application of Estelle and Flynn. We cannot legitimately require the California courts to follow Ninth Circuit decisions on pain of our letting their prisoners out onto the street.

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.'"¹⁷ The Tenth Circuit in Welch v. City of Pratt held AEDPA "restricts the source of clearly established law to [the Supreme] Court's jurisprudence" and federal courts are therefore "no longer permitted to apply our own jurisprudence."¹⁸ The Seventh Circuit likewise determined that "[f]ederal courts are no longer permitted to apply their own jurisprudence, but must look exclusively to Supreme Court case-law."¹⁹

The Fourth Circuit has also held that...