Musladin v. Lamarque, 03-16653.

• Decision Date: 21 October 2005
• Docket Number: No. 03-16653.,03-16653.
• Citation: 427 F.3d 653
• Parties: Mathew MUSLADIN, Petitioner-Appellant, v. Anthony LAMARQUE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

427 F.3d 653

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

No. 03-16653.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 2, 2004.

Filed October 21, 2005.

Barry J. Portman, Federal Public Defender, and David W. Fermino, Assistant Federal Public Defender, San Francisco, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Glenn R. Pruden, Deputy Attorney General, and Gregory A. Ott, Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; James Larson, Magistrate, Presiding. D.C. No. CV-00-01998-JL.

Before REINHARDT, THOMPSON, and BERZON, Circuit Judges.

ORDER AND OPINION

REINHARDT, Circuit Judge.

ORDER

The opinion and dissent filed on April 8, 2005, slip op. 4055, and appearing at 403 F.3d 1072 (9th Cir.2005), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. The clerk shall file the attached opinion and dissent in its place.

OPINION

At a murder trial in which the central question is whether the defendant acted in self-defense, are a defendant's constitutional rights violated when spectators are permitted to wear buttons depicting the deceased individual? We conclude that under clearly established Supreme Court law such a practice interferes with the right to a fair trial by an impartial jury free from outside influences.

Mathew Musladin appeals the district court's denial of his petition for a writ of habeas corpus. He contends that the buttons worn by the deceased individual's family members at his trial created an unreasonable risk of impermissible factors coming into play, and that the state court was objectively unreasonable in denying this claim both on direct appeal and in the post-conviction proceedings. In light of clearly-established federal law set forth by the Supreme Court, and persuasive authority from this court concerning the proper application of that law, we hold that the last-reasoned decision of the state court constituted an unreasonable application of Supreme Court law. Accordingly, we reverse the district court's denial of Musladin's petition and remand for issuance of the writ.

I. Factual Background and Procedural History

Musladin was charged in a California state court with first degree murder for the killing of Tom Studer, the fiance of his estranged wife Pamela. On May 13, 1994, Musladin came to the house where Pamela, Studer, and Pamela's brother Michael Albaugh lived in order to pick up his son for a scheduled weekend visit. Pamela testified that she and Musladin had an argument, and that Musladin pushed her to the ground. According to Pamela, when Studer and Albaugh came out of the house to assist her, Musladin reached into his car to grab a gun and fired two shots at Studer, killing him. Musladin contends, however, that after Pamela fell to the ground, Studer and Albaugh appeared, holding a gun and a machete respectively, and threatened him. Musladin asserted that, after seeing the weapons, he shot in the general direction of Studer out of fear for his own life. Accordingly, at trial Musladin argued perfect and imperfect self-defense. There is no dispute that Musladin fired the shot that killed Studer, although experts for both sides agree that the fatal shot was the result of a ricochet rather than a direct hit. Under Musladin's theory of defense, there was no crime and, thus, no victim.

During the 14-day trial, Studer's family sat in the front row of the gallery. On each of those 14 days, at least three members of the family wore buttons on their shirts with the deceased's photograph on them. According to declarations submitted by the defendant, the buttons were several inches in diameter and "very noticeable." Furthermore, the family members were seated in the row directly behind the prosecution and in clear view of the jury. Before opening statements, counsel for Musladin requested that the trial judge instruct the family members to refrain from wearing the buttons in court, out of fear that the button's expressive content would influence the jury and prejudice Musladin's defense. The trial judge denied the request. Musladin was convicted of first degree murder and three other related offenses.

Musladin exhausted the available state procedures both on direct review and on post-conviction relief. The California Court of Appeal on direct appeal held, citing Holbrook v. Flynn, 475 U.S. 560, 570-71, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), that: "While we consider the wearing of photographs of victims in a courtroom to be an `impermissible factor coming into play,' the practice of which should be discouraged, we do not believe the buttons in this case branded defendant `with an unmistakable mark of guilt' in the eyes of the jurors." Musladin then filed a petition for a writ of habeas corpus in the District Court for the Northern District of California. He alleged, among other things, that the state court unreasonably applied clearly-established federal law in determining that his right to a fair trial was not violated by the family members' wearing of the buttons depicting the deceased. The district court denied the petition and this appeal followed.

II. The AEDPA Standard

Musladin's petition for habeas corpus is governed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Therefore, we may not grant habeas relief to the defendant unless the 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." 28 U.S.C. § 2254(d)(1). Because state courts often issue "postcard" denials that offer no rationale for their dispositions, we determine whether the state court unreasonably applied federal law by looking to the "last reasoned decision of the state court as the basis of the state court's judgment." Franklin v. Johnson, 290 F.3d 1223, 1233 n. 3 (9th Cir.2002).

In this case, we look to the opinion of the California Court of Appeal on direct appeal.

AEDPA limits the source of clearly-established federal law to Supreme Court cases. See 28 U.S.C. § 2254(d)(1). Nevertheless, we recognize that precedent from this court, or any other federal circuit court, has persuasive value in our effort to determine "whether a particular state court decision is an `unreasonable application' of Supreme Court law, and . . . what law is `clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.2000); see also Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir.2004) ("When faced with a novel situation we may turn to our own precedent, as well as the decisions of other federal courts, in order to determine whether the state decision violates the general principles enunciated by the Supreme Court and is thus contrary to clearly established federal law."); Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.2003) ("[T]he objective reasonableness of a state court's application of Supreme Court precedent may be established by showing other circuits having similarly applied the precedent."); Ouber v. Guarino, 293 F.3d 19, 26 (1st Cir.2002) ("[T]o the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue." (internal quotation marks and citation omitted)); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir.1999) ("[W]e do not believe federal habeas courts are precluded from considering the decisions of the inferior federal courts when evaluating whether the state court's application of the law was reasonable.") (en banc).

III. Discussion

"Due process requires that the accused receive a fair trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The Supreme Court has held that when the consequence of a courtroom practice is that an "unacceptable risk is presented of impermissible factors coming into play," there is "inherent prejudice" to a defendant's constitutional right to a fair trial and reversal is required. Flynn, 475 U.S. at 570, 106 S.Ct. 1340. In order to determine whether Musladin is entitled to federal habeas relief, we must therefore assess whether the buttons depicting the deceased individual worn by spectators at the trial posed a risk of impermissible factors coming into play that is similar to those previously found to exist in other circumstances, such as in compelling a criminal defendant to wear prison garb and shackles before the jury, see Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and in permitting spectators at a rape trial to wear anti-rape buttons, see Norris v. Risley, 918 F.2d 828 (9th Cir.1990). Because we conclude that no significant difference exists between the circumstances of this case and the "unacceptable risks" found to exist in Williams and Norris, we hold that the state court unreasonably applied established Supreme Court law in denying Musladin relief.

a. Clearly Established Federal Law

The underlying federal law in this case — that certain practices attendant to the conduct of a trial can create such an "unacceptable risk of impermissible factors coming into play," as to be "inherently prejudicial" to a criminal defendant — was clearly established by the Supreme Court in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). In Williams, the Court considered whether compelling a criminal defendant to appear at his jury trial dressed in prison clothing violated his right to a...