Musladin v. Lamarque

• Decision Date: 12 February 2009
• Docket Number: No. 03-16653.,03-16653.
• Citation: 555 F.3d 830
• Parties: Mathew MUSLADIN, Petitioner-Appellant, v. Anthony LAMARQUE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

555 F.3d 830

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

No. 03-16653.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 24, 2008.

Filed February 12, 2009.

Sanford Svetcov, Lerach Coughlin Stoia Geller Rudman & Robbins LLP, San Francisco, CA, for the petitioner-appellant.

Gregory A. Ott and Peggy S. Ruffra, Deputy Attorneys General, Gerald A. Engler and Dane R. Gillette, San Francisco, CA, Assistant Attorneys General, and Edmund G. Brown Jr., Attorney General of the State of California, for the respondent-appellee.

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

Before: STEPHEN REINHARDT, DAVID R. THOMPSON, and MARSHA S. BERZON, Circuit Judges.

BERZON, Circuit Judge:

Mathew Guy Musladin appeals the district court's denial of his petition for a writ of habeas corpus. In a prior decision, we reversed the district court on the ground that buttons depicting the victim worn by spectators at Musladin's trial impermissibly conveyed to jurors the message that Musladin was guilty, and we declined to address Musladin's other claims. Musladin v. Lamarque, 427 F.3d 653 (9th Cir. 2005). Our decision was reversed by the Supreme Court. Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). We consider the remaining issues in this appeal.

BACKGROUND

Our previous decision explained the factual background of Musladin's case:

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.

427 F.3d at 654-55.

The California courts rejected Musladin's direct appeal and petition for post-conviction relief.

Musladin challenges the trial court's failure to consult with defense counsel before responding to a jury note; his attorney's failure to request a limiting instruction and to investigate a threatening statement by Studer; and the trial court's exclusion of certain evidence. We recite the relevant facts with our discussion of each specific claim below.

STANDARD OF REVIEW

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Musladin can prevail on a claim "that was adjudicated on the merits in State court" only if he can show that the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision will be "contrary to" federal law if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case yet reaches a different result. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). It will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 409, 120 S.Ct. 1495.

On habeas review, we assess the prejudicial impact of most constitutional errors by asking whether they "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). As we discuss further below, however, some constitutional errors do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we apply Strickland's prejudice standard and do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918 n. 7 (2002).

We review the last reasoned state court opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 115 L.Ed.2d 706 (1991). Where the state court decided an issue on the merits but provided no reasoned decision, we conduct "an independent review of the record ... to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000). "[A]lthough we independently review the record, we still defer to the state court's ultimate decision." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002).

We review the district court's denial of Musladin's petition for a writ of habeas corpus de novo. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003).

ANALYSIS

I.

Musladin argues that the trial court's failure to consult with defense counsel before responding to a mid-deliberations jury note deprived him of his Sixth Amendment right to counsel.

A.

On the second day of jury deliberations, the jury sent the following note to the trial court:¹

We need amplification of the following:

1) The definition of Murder of the first degree contains the phrase "express malice"—Whereas the def'n of murder of the second degree, "express" malice is omitted.

(a) Does this exclude "implied" malice?

The trial court notified counsel, and Musladin's attorney said that he would "drop everything and be right over," which he did, arriving ten to fifteen minutes after he was summoned. Before defense counsel arrived, however, the trial court returned the note to the jury with the written direction: "REFER TO THE INSTRUCTIONS."² Less than an hour later, the jury returned its verdict of guilty on all charges.

Because the state courts denied this claim on the merits but without a reasoned decision,³ "we independently review the record, [but] still defer to the state court's ultimate decision." Pirtle, 313 F.3d at 1167.

B.

1.

In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court reiterated the importance of counsel for criminal defendants: "Lawyers in criminal cases `are necessities, not luxuries.' Their presence is essential because they are the means through which the other rights of the person on trial are secured." Id. at 653, 104 S.Ct. 2039 (footnote omitted) (quoting Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). The right to effective assistance of counsel, in other words, "is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." Id. at 658, 104 S.Ct. 2039. Consequently, "[a]bsent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." Id. Nonetheless, there are some circumstances "that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. (footnote omitted). Cronic held that courts are "require[d] ... to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." Id. at 659, 104 S.Ct. 2039 (footnote omitted).⁴ There is no question here that Musladin was denied counsel during the formulation and delivery of the response to the jury note. The parties disagree about whether this was a "critical stage of his trial" and, if so, whether the deprivation of counsel during this time warrants automatic reversal.

2.

Cronic states that the complete deprivation of counsel at a critical stage requires reversal, without inquiry into prejudice: "There are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.... The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." Cronic, 466 U.S. at 658-59, 104 S.Ct. 2039 (emphasis added). Relying on Cronic, the Sixth Circuit has recently held that the deprivation of counsel during jury reinstruction is automatically reversible error. Caver v. Straub, 349 F.3d 340, 350 (6th Cir.2003) ("[U]nder Cronic, ... if Petitioner's trial counsel was, indeed, absent during the re-instruction, a structural error occurred in the trial court proceeding.... Any conclusion otherwise would be an unreasonable application of clearly established federal law as stated in Cronic.").

The state argues, however, that the Supreme Court has backed away from the bright-line Cronic position regarding automatic prejudice. It points out that,...