Musladni v. Lamarque ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATHEW MUSLADIN,  No. 03-16653
Petitioner-Appellant, D.C. No.
v.  CV-00-01998-JL
ANTHONY LAMARQUE, WARDEN, ORDER AND
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the Northern District of California
James Larson, Magistrate, Presiding
Argued and Submitted
November 2, 2004—San Francisco, California
Filed October 21, 2005
Before: Stephen Reinhardt, David R. Thompson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Thompson
14429
MUSLADIN v. LAMARQUE 14431
COUNSEL
Barry J. Portman, Federal Public Defender, and David W.
Fermino, Assistant Federal Public Defender, San Francisco,
California, for the petitioner-appellant.
14432 MUSLADIN v. LAMARQUE
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Ger-
ald A. Engler, Senior Assistant Attorney General, Glenn R.
Pruden, Deputy Attorney General, and Gregory A. Ott, Dep-
uty Attorney General, San Francisco, California, for the
respondent-appellee.
ORDER
The opinion and dissent filed on April 8, 2005, slip op.
4055, and appearing at 403 F.3d 1072 (9th Cir. 2005), is with-
drawn. 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
REINHARDT, Circuit Judge:
At a murder trial in which the central question is whether
the defendant acted in self-defense, are a defendant’s constitu-
tional 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 but-
tons 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
MUSLADIN v. LAMARQUE 14433
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 sched-
uled 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 mem-
bers 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 prosecu-
tion and in clear view of the jury. Before opening statements,
14434 MUSLADIN v. LAMARQUE
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 influ-
ence 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 (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 dispo-
sitions, 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).
MUSLADIN v. LAMARQUE 14435
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). Never-
theless, 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. Igna-
cio, 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 reasonable-
ness 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 deci-
sions 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. Superinten-
dent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999) (“[W]e do
not believe federal habeas courts are precluded from consider-
ing the decisions of the inferior federal courts when evaluat-
ing whether the state court’s application of the law was
reasonable.”) (en banc).
III. Discussion
[1] “Due process requires that the accused receive a fair
trial by an impartial jury free from outside influences.” Shep-
pard v. Maxwell, 384 U.S. 333, 362 (1966). The Supreme
Court has held that when the consequence of a courtroom
14436 MUSLADIN v. LAMARQUE
practice is that an “unacceptable risk is presented of imper-
missible factors coming into play,” there is “inherent preju-
dice” to a defendant’s constitutional right to a fair trial and
reversal is required. Flynn, 475 U.S. at 570. In order to deter-
mine 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(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 “unac-
ceptable 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 prac-
tices attendant to the conduct of a trial can create such an “un-
acceptable 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. Wil-
liams, 425 U.S. 501 (1976), and Holbrook v. Flynn, 475 U.S.
560 (1986). In Williams, the Court considered whether com-
pelling a criminal defendant to appear at his jury trial dressed
in prison clothing violated his right to a fair trial. See Wil-
liams, 425 U.S. at 503-06. The Court found that the com-
pelled wearing of prison clothing constitutes a continuous
impermissible reminder to the jury of the defendant’s condi-
tion: an accused in custody who is unable to post bail. Id. at
505. The Court held that the influence of prison clothing, and
the message it conveys to the jurors, impairs a defendant’s
presumption of innocence. See id. at 503. Noting these and
other concerns, the Court concluded that because “[t]he
MUSLADIN v. LAMARQUE 14437
defendant’s clothing is so likely to be a continuing influence
throughout the trial . . . an unacceptable risk is presented of
impermissible factors coming into play.” Id. at 505.
In Flynn, the court reaffirmed its holding in Williams
regarding the “inherent prejudice” of courtroom practices that
create an “unacceptable risk of impermissible factors coming
into play,” but distinguished the case before it on the facts.
The defendants in Flynn argued that the presence of four uni-
formed state troopers sitting in the front row directly behind
them at trial led the jury to draw adverse inferences about
them. Flynn, 475 U.S. at 563-64. The Court explained that
there are certain “courtroom practices [that it] might find
inherently prejudicial,” but that the use of security officers to
the extent involved did not fall into that category. Id. at 569.
As the Court explained, the “inferences that a juror might rea-
sonably draw from the officers’ presence” in that case “need
not be . . . that [the defendant] is particularly dangerous or
culpable.” Id. In distinguishing Flynn from Williams, the
Court pointed out that the jury may not even have noticed that
extra guards were being used in the trial, or most likely, drew
no impermissible inference from their presence. The court
stated, “[guards] are doubtless taken for granted so long as
their numbers or weaponry do not suggest particular official
concern or alarm.” Id. at 569. The law concerning the “inher-
ently prejudicial” nature of courtroom practices which convey
an impermissible message, however, remained unchanged and
clear.
[2] This court’s decision in Norris v. Risley, 918 F.2d 828(9th Cir. 1990), has persuasive value in an assessment of the
meaning of the federal law that was clearly-established by
Williams and Flynn and whether the state court’s application
of that law in the case before us is objectively unreasonable.
Like the present case, Norris involved the application of the
Supreme Court’s “inherent prejudice” rule in assessing
whether buttons worn by audience members during a trial cre-
ated an “unacceptable risk of impermissible factor coming
14438 MUSLADIN v. LAMARQUE
into play.” See Norris, 918 F.2d at 831-32. In Norris, the
defendant was facing a criminal charge of rape. During the
trial, several women sat in the spectator’s gallery wearing but-
tons that read “Women Against Rape.” Id. at 829. We noted
that at any given time in Norris’s trial, approximately three
women in the audience would be wearing the anti-rape but-
tons. Id. at 831. Faced with these facts, we applied Williams
and concluded that “[j]ust as the compelled wearing of prison
garb during trial can create an impermissible influence on the
jury, throughout trial the buttons’ message . . . constituted a
continuing reminder that various spectators believed Norris’s
guilt before it was proven, eroding the presumption of innon-
cence.” Id. at 831. As we explained, because of the button’s
obvious communicative purpose, its impermissible message
was far more clear and direct than that deemed unlawful in
Williams:
Thus, though far more subtle than a direct accusa-
tion, the buttons’ message was all the more danger-
ous precisely because it was not a formal accusation.
Unlike the state’s direct evidence, which could have
been refuted by any manner of contrary testimony to
be judged ultimately on the basis of each declarant’s
credibility, the buttons’ informal accusation was not
susceptible to traditional methods of refutation.
Instead, the accusation stood unchallenged, lending
credibility and weight to the state’s case without
being subject to the constitutional protections to
which such evidence is ordinarily subjected.
Id. at 833.
Our reliance on Norris is appropriate for another reason:
the last reasoned state court opinion identified Norris as set-
ting forth the operative law as announced by the Supreme
Court, and the state court sought to apply Norris when reach-
ing its determination. Indeed, the state court’s unreasonable
application of federal law lies in its misapplication of the Wil-
MUSLADIN v. LAMARQUE 14439
liams test, as it was explained in Norris, to the facts of this
case.
The state court’s decision to apply Norris, and ours to
afford it persuasive weight when determining the federal law
as established by Williams, are particularly significant in light
of the striking factual similarities between Norris and the
present case. See Richardson v. Bowersox, 188 F.3d 973, 978
(8th Cir. 1999) (“In determining whether a state court’s deci-
sion involved an unreasonable application of clearly estab-
lished federal law, it is appropriate to refer to decisions of the
inferior federal courts in factually similar cases.”).
b. Unreasonable Application of The Law
Although the state court identified the correct federal law
to apply in adjudicating Musladin’s claim, citing Williams for
the controlling principle, and properly looking to our decision
in Norris as a persuasive application of that federal law in a
factually similar case, the state court was objectively unrea-
sonable both in its ultimate conclusion and in the rationale it
employed in denying Musladin’s appeal. The California Court
of Appeal justified its rejection of Musladin’s claim as fol-
lows:
[i]n contrast to the buttons in Norris, the message to
be conveyed by the Studer family wearing buttons is
less than clear. The simple photograph of Tom
Studer was unlikely to have been taken as a sign of
anything other than the normal grief occasioned by
the loss of a family member. 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.
14440 MUSLADIN v. LAMARQUE
People v. Musladin, No. H015159 at 21-22 (Cal. Ct. App.
Dec. 9, 1997) (unpublished decision) (citing Flynn, 475 U.S.
at 570-71).
[3] By disposing of Musladin’s claim in the above manner,
the state court unreasonably applied federal law by imposing
an additional and unduly burdensome requirement —
demanding that the challenged practice cause the “brand[ing]”
of the defendant with an “unmistakable mark of guilty” —
even though the Williams test for finding “inherent prejudice”
had already been met. The court specifically found “the wear-
ing of photographs of victims in a courtroom to be an ‘imper-
missible factor coming into play’ ” (emphasis added). Under
Williams and Flynn, that finding, in itself establishes “inher-
ent prejudice” and requires reversal.
Williams and Flynn cannot be distinguished. In the case
before us, the state court found not only that an “unreasonable
risk” existed that an impermissible factor would come into
play, but that an impermissible factor actually had come into
play. Nevertheless, after setting forth this finding, the state
court added that, although the practice of wearing such but-
tons “should be discouraged,” Musladin was not entitled to
relief because “the buttons in this case [did not] brand[ ]
defendant ‘with an unmistakable mark of guilt’ in the eyes of
the jurors.” The state court was unreasonable in imposing this
additional requirement after it had concluded that the “inher-
ent prejudice” elements had already been fully established.
The Supreme Court announced in Williams and Flynn that
following a finding of an unacceptable risk of impermissible
factors coming into play, no further showing is necessary
because the practice is then deemed “inherently prejudicial.”
Here, the state court flouted that rule: it required that the chal-
lenged practice not only constitute an unacceptable risk of an
impermissible factor coming into play but also that it “brand”
the defendant with an “unmistakable mark of guilt.” This
additional test imposes too high and too unreasonable a bur-
MUSLADIN v. LAMARQUE 14441
den on defendants and is contrary to established Supreme
Court law. See Benn v. Lambert, 283 F.3d 1040, 1051 n.5 (9th
Cir. 2002).1
[4] We note that the “branding” with an “unmistakable
mark of guilt” language employed in Flynn constituted only
a descriptive comment. See Flynn, 475 U.S. at 571 (quoting
Williams, 425 U.S. at 518 (Brennan, J., dissenting)).2 Both
Williams and Flynn are clear as to the legal standard, and nei-
ther suggested that “branding” was necessary. Indeed, under
the state court’s interpretation, the holding in Williams would
not survive its own test. The Williams Court never found, or
even implied, that the compelled donning of prison clothing
would “brand[ the] defendant ‘with an unmistakable mark of
guilt’ in the eyes of the jurors.” Rather, the court’s concern
1
This is not to say that a showing of actual prejudice has no role in a
Flynn challenge. As we held in Norris, reversal is required if a defendant
can prove either actual or inherent prejudice. See Norris, 918 F.2d at 828;
accord Woods, 923 F.2d at 1457; see also United States v. Halliburton,
870 F.2d 557, 560 (9th Cir. 1989) (“If we find that the jurors’ brief view
of Halliburton in handcuffs was not inherently prejudicial, we must then
determine whether appellant has carried his burden of affirmatively show-
ing actual prejudice.”).
2
Justice Brennan’s dissent in Williams was the first time a member of
the Court employed the “branding” language. Justice Brennan explained
that regardless of whether prison clothing was compelled or not, the wear-
ing of those clothes adversely affects a defendant’s presumption of inno-
cence, because, among other things, the clothing “surely tends to brand
him in the eyes of the jury with an unmistakable mark of guilt.” Williams,
425 U.S. at 518 (Brennan, J., dissenting) (emphasis added). When it was
repeated in Flynn, the majority had already dismissed the defendant’s
challenge, and was simply noting in the alternative that “[e]ven had the
jurors been aware that the deployment of troopers was not common prac-
tice in Rhode Island, we cannot believe that the use of the four troopers
tended to brand respondent in their eyes ‘with an unmistakable mark of
guilt.’ ” Flynn, 475 U.S. at 571 (quoting Williams, 425 U.S. at 518 (Bren-
nan, J., dissenting)). Flynn never stated that in order to prevail the defen-
dant was required to meet that standard. Rather, it may simply have been
refuting the defendant’s contention that the challenged practice had the
described effect.
14442 MUSLADIN v. LAMARQUE
was directed purely at the clothes’ role as a “constant
reminder of the accused’s condition” — a “continuing influ-
ence throughout the trial,” principally because the require-
ment that defendants wear prison clothes “operates usually
against only those who cannot post bail prior to trial.” Wil-
liams, 425 U.S. at 504-06. At most, the Williams Court found
that the shackling and prison clothes were “unmistakable indi-
cations of the need to separate a defendant from the commu-
nity at large,” not that they would “brand” the defendant with
an “unmistakable mark of guilt.” Flynn, 475 U.S. at 569, 571.
Although a practice that brands a defendant as guilty would
surely be sufficient to demonstrate “inherent prejudice” and
require reversal, branding is not a necessary element of estab-
lishing such prejudice. The state court’s imposition of the
additional “branding” requirement was contrary to clearly
established federal law and constituted an unreasonable appli-
cation of that law.3
[5] Moreover, the finding by the California Court of Appeal
goes beyond the finding that was held to require reversal in
3
We have consistently granted relief in this circuit on William-Flynn
grounds without requiring the defendant to show that the challenged prac-
tice “branded” him with “an unmistakable mark of guilt.” See, e.g., Norris,
918 F.2d at 831; United States v. Olvera, 30 F.3d 1195, 1198 (9th Cir.
1994) (“We conclude that [the challenged practice] posed an unacceptably
high risk of influencing the jury’s judgment in a manner that undermined
the presumption of innocence.”). Although we have found that proving a
mark of unmistakable guilt is sufficient to establish prejudice, we have
never held that it is necessary. To the contrary, we have noted that it may
serve an alternative to the basic test, which remains the traditional stan-
dard by which we determine the existence of inherent prejudice. See Wil-
liams v. Woodford, 384 F.3d 567, 588 (9th Cir 2004) (“The Supreme
Court has said that security measures at trial are inherently prejudicial
when they ‘tend[ ] to brand [the defendant] in [the jurors’] eyes with an
unmistakable mark of guilt,’ or when they create ‘an unacceptable risk . . .
of impermissible factors coming into play.’ ” (emphasis added) (internal
citations omitted)). Thus, branding may be an alternative means of estab-
lishing a violation, but it is not an additional requirement to be imposed
after the violation has already been established under the traditional
Williams-Flynn standard.
MUSLADIN v. LAMARQUE 14443
Norris. The state court attempted to distinguish Norris, but
Norris simply cannot reasonably be distinguished. The mes-
sage conveyed in the present case is even stronger and more
prejudicial than the one conveyed in Norris. The state court
unreasonably justified its conclusion by stating that, when
compared to the buttons worn by spectators in Norris, the
“message conveyed by the Studer family wearing buttons is
less than clear.” This is simply not the case. Just as we held
that the message sent by the anti-rape buttons was substan-
tially more direct and clear than the message conveyed by the
prison clothing in Williams, see Norris, 918 F.2d at 831, the
message conveyed by the buttons depicting Studer in the case
before us is substantially more direct and clear than that of the
anti-rape buttons in Norris. In Norris, the buttons expressed
the wearer’s position against rape but did not specify the
defendant or the victim. In this case, the buttons actually
depicted the individual that the defendant was charged with
murdering and represented him as the innocent party, or the
victim. Here, the direct link between the buttons, the specta-
tors wearing the buttons, the defendant, and the crime that the
defendant allegedly committed was clear and unmistakable.
The primary issue at Musladin’s trial was whether it was the
defendant or the deceased individual who was the aggressor.
The buttons essentially “argue” that Studer was the innocent
party and that the defendant was necessarily guilty; that the
defendant, not Studer, was the initiator of the attack, and,
thus, the perpetrator of a criminal act.
[6] The California court’s belief that buttons depicting the
deceased individual were “unlikely to have been taken as a
sign of anything other than the normal grief occasioned by the
loss of a family member” is even more incorrect as a matter
of law than the view that interpreting the “Woman against
Rape” buttons in Norris served no purpose other than women
announcing a general statement against rape or expressing
solidarity with, or support for, the rape victim in Norris’s case.4
4
Even if we concluded that a showing of solidarity was the primary
effect of the buttons in Norris or the buttons worn by the deceased individ-
14444 MUSLADIN v. LAMARQUE
We did not excuse the wearing of the buttons on that ground
in Norris, and it was objectively unreasonable in light of Nor-
ris for the state court to do so here. See Norris, 918 F.2d at
831. In both Norris and the case before us, the law requires
the courts to look beyond the general sentiment a button
reflects and to determine the specific message that the button
conveys in light of the particular facts and issues before the
jury. Doing so here, a reasonable jurist would be compelled
to conclude that the buttons worn by Studer’s family members
conveyed the message that the defendant was guilty, just as
the buttons worn by spectators in Norris did in that case.
IV. Conclusion
[7] In finding the wearing of buttons depicting the deceased
individual to be an “impermissible factor coming into play,”
the state court reached the point at which the Supreme Court
“went no further and concluded that the practice [at issue wa]s
unconstitutional.” Flynn, 475 U.S. at 568. Instead of granting
relief, however, the state court, disregarding the fact that the
central question was one of self-defense, unreasonably stated
that the message conveyed through the wearing of the buttons
in this case was not as clear as that conveyed by the anti-rape
buttons in Norris. The state court then unreasonably held that
“branding” the defendant with “an unmistakable mark of
guilt” is necessary to grant relief even though it had already
ual’s family in this case, such a showing would not be inconsistent with
the conveying of a message about the defendant or his guilt. The Eleventh
Circuit considered a similar question when a defendant, accused of killing
a prison guard, challenged the presence of uniformed officers in the audi-
ence at his trial. In a post-Flynn decision, the Eleventh Circuit held that
the officers’ act of showing solidarity was inherently prejudicial to the
defendant and granted the writ: “The officers in this case were there for
one reason: they hoped to show solidarity with the killed correctional offi-
cer. In part, it appears that they wanted to communicate a message to the
jury . . . [that they] wanted a conviction followed by the imposition of the
death penalty. The jury could not help but receive the message.” Woods
v. Dugger, 923 F.2d 1454, 1459-60 (11th Cir. 1991).
MUSLADIN v. LAMARQUE 14445
found that “impermissible factors” had come into play before
the jury. The state court did not simply engage in an incorrect
application of Supreme Court law. Rather, its application of
that law was contrary to the Court’s established rule of law
and was objectively unreasonable. Accordingly, we reverse
the district court’s denial of Musladin’s petition for habeas
corpus and remand for issuance of the writ. Musladin shall be
released unless the state elects to re-try him within 90 days of
the issuance of the mandate.
Reversed and Remanded.
THOMPSON, Senior Circuit Judge, dissenting:
I respectfully dissent.
A further statement of the facts seems appropriate. The
petitioner, Musladin, and his wife, Pam, were married but
separated at the time of the crimes of which Musladin was
convicted. Pam was living at her mother’s house with her
brother Michael Albaugh, her fiancé Tom Studer, and Garrick
Musladin, her then three-year-old son by Musladin. On the
day of the shooting, Musladin went to the house to pick up
Garrick for a scheduled weekend visitation.
The prosecutor presented evidence that an argument ensued
between Pam and Musladin in the driveway, during which
Musladin pushed Pam to the ground and reached for a gun in
his car. Albaugh, standing in the driveway, yelled, “He’s got
a gun.” Pam and Studer ran up the driveway. Musladin fired
the gun at Pam and Studer, hitting Studer in the back of the
shoulder. Pam ran into the house and out the back door.
Studer fell to the ground and attempted to crawl underneath
a truck in the garage. Musladin entered the garage and fired
a second shot which ricocheted into Studer’s head, killing
him.
14446 MUSLADIN v. LAMARQUE
Musladin presented a different version of these events. He
admitted shooting at Studer and killing him, but claimed per-
fect and imperfect self-defense. He testified that he believed
Albaugh was carrying a machete and Studer a gun, and that
he fired both shots out of fear for his life. After firing the
shots, he got in his car and drove away.
Musladin was tried and convicted of first-degree murder of
Studer and attempted murder of Pam.
I disagree with the majority’s reliance upon our decision in
Norris v. Risley, 918 F.2d 828 (9th Cir. 1990), for the applica-
tion in this case of the rule of Estelle v. Williams, 452 U.S.
501 (1976). In Williams, the Court determined it to have been
a violation of the right to a fair trial for the state to have com-
pelled the defendant to wear prison clothing during his trial.
Id. at 505. The Court held the prison clothing impaired the
defendant’s presumption of innocence. Id. In the present case,
the state court permitted relatives of the deceased victim to
wear buttons in the courtroom. The buttons disclosed only the
deceased victim’s picture, nothing else, and had nothing to do
with the defendant.
Our Norris case was a case involving three women who
wore buttons in the courtroom during the defendant’s trial for
rape, but that case is not controlling here. The buttons in Nor-
ris were two and one-half inches in diameter and bore the
words “Women Against Rape.” Norris, 918 F.2d at 830.
“[T]he word ‘rape’ [was] underlined with a broad red stroke.”
Id. We stated: “[T]he buttons’ message, which implied that
Norris raped the complaining witness, constituted a continu-
ing reminder that various spectators believed Norris’s guilt
before it was proven, eroding the presumption of innocence.”
Id. at 831.
Here, the buttons were three to four inches in diameter and,
except for the deceased victim’s picture, there was nothing
else on them. The buttons conveyed no “message.” As the
MUSLADIN v. LAMARQUE 14447
state appellate court stated, “The simple photograph of Tom
Studer was unlikely to have been taken as a sign of anything
other than the normal grief occasioned by the loss of a family
member.”
Further, it is difficult to distinguish this case from the rou-
tine situation of a deceased victim’s family members, without
buttons, sitting as a group in a courtroom during a trial. Jurors
in such a trial surely would recognize the group for what it is.
The addition of buttons worn by them showing only the vic-
tim’s photograph would add little if anything to any possible
risk of impermissibly prejudicing the jury.
Although the state appellate court in the present case com-
mented that it “consider[ed] the wearing of the photographs
of victims in a courtroom to be an ‘impermissible factor com-
ing into play,’ the practice of which should be discouraged,”
quoting the “impermissible factor” language from Williams,
425 U.S. at 505 (which the Supreme Court also quoted in
Holbrook v. Flynn, 475 U.S. 560, 570 (1986)), the state
court’s “impermissble factor” comment is most reasonably
understood as reflecting that court’s view that buttons bearing
a victim’s photograph should not be worn in a courtroom. The
comment did not change the buttons or make them something
they were not. Moreover, the state court’s additional comment
that the buttons did not “brand[ ] defendant ‘with an unmis-
takable mark of guilt’ ” is most reasonably understood as an
explanation that the buttons were not “so inherently prejudi-
cial as to pose an unacceptable threat to [the] right to a fair
trial.” Holbrook, 475 U.S. at 572.
In sum, I do not believe the decision by the California
Court of Appeal was “contrary to, or involved an unreason-
able application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” See 28
U.S.C. § 2254(d)(1). The state court’s decision was not “con-
trary to” any such federal law, because the state court did not
“ ‘appl[y] a rule that contradicts the governing law set forth
14448 MUSLADIN v. LAMARQUE
in [Supreme Court] cases,’ ” nor did the state court “ ‘con-
front[ ] a set of facts that are materially indistinguishable from
a decision of [the Supreme] Court and nevertheless arrive[ ]
at a result different from [Supreme Court] precedent.’ ” Lock-
yer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)).
Nor does the state court’s decision abridge the “unreason-
able application” clause of 28 U.S.C. § 2254(d)(1). “The
‘unreasonable application’ clause requires the state court deci-
sion to be more than incorrect or erroneous. The state court’s
application of clearly established law must be objectively
unreasonable.” Lockyer, 538 U.S. at 75 (internal citations
omitted). Here, even if erroneous (which it was not), the Cali-
fornia Court of Appeal’s decision was not “objectively unrea-
sonable.”
The petitioner also asserts a number of other claims that he
argues merit habeas relief. I would reject those claims as well,
and thus would affirm the district court.