Musladin v. Lamarque

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATHEW MUSLADIN,  No. 03-16653
Petitioner-Appellant,
v.  D.C. No.
CV-00-01998-JL
ANTHONY LAMARQUE, WARDEN,
OPINION
Respondent-Appellee.

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 April 8, 2005
Before: Stephen Reinhardt, David R. Thompson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Thompson
4055
MUSLADIN v. LAMARQUE 4057
COUNSEL
Barry J. Portman, Federal Public Defender, and David W.
Fermino, Assistant Federal Public Defender, San Francisco,
California, for the petitioner-appellant.
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Ger-
4058 MUSLADIN v. LAMARQUE
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.
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 “victim”? We conclude that under
clearly established Supreme Court law such a practice inter-
feres 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 “victim’s” family members at his trial cre-
ated an unreasonable risk of impermissible factors coming
into play, and that the state court was objectively unreason-
able 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
MUSLADIN v. LAMARQUE 4059
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,
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. He 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-
4060 MUSLADIN v. LAMARQUE
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).
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
MUSLADIN v. LAMARQUE 4061
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
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. Holbrook v. Flynn, 475 U.S. 560, 570
(1986). In order to determine whether Musladin is entitled to
federal habeas relief, we must therefore assess whether the
buttons depicting Studer 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.
4062 MUSLADIN v. LAMARQUE
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 conveyed to the jurors, impaired a defendant’s
presumption of innocence. See id. at 503. Noting these and
other concerns, the Court concluded that because “[t]he
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
MUSLADIN v. LAMARQUE 4063
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 factors coming
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 inno-
cence.” Id. at 831. As we explained, because of the button’s
clear communicative purpose, its impermissible message was
far more clear and direct than that deemed unlawful in Wil-
liams:
Thus, though far more subtle than a direct accusa-
tion, the buttons’ message was all the more danger-
4064 MUSLADIN v. LAMARQUE
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-
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
MUSLADIN v. LAMARQUE 4065
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 disposition 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.
People v. Musladin, No. H015159 at 21-22 (Cal. Ct. App.
Dec. 9, 1997) (unpublished decision) (citing Flynn, 475 U.S.
at 570-71).
By disposing of Musladin’s claim in the above manner, the
state court unreasonably applied federal law in two ways: (1)
The state court’s attempt to distinguish this case from Norris
on the basis of the facts misconstrued the Supreme Court’s
rule regarding the “message” that certain courtroom practices
send to the jury; and (2) the state court unreasonably imposed
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.
[3] First, the state court erred in attempting to distinguish
Norris. Norris simply cannot reasonably be distinguished.
The message conveyed in the present case is even stronger
4066 MUSLADIN v. LAMARQUE
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
substantially 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 spec-
ify the defendant or the victim. In this case, the buttons actu-
ally 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
spectators wearing the buttons, the defendant, and the crime
that the defendant allegedly committed was clear and unmis-
takable. The primary issue at Musladin’s trial was whether it
was the defendant or the deceased 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.
[4] The California court’s belief that buttons depicting the
victim 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.1 We did not
1
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 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 consid-
MUSLADIN v. LAMARQUE 4067
excuse the wearing of the buttons on that ground in Norris,
and it was objectively unreasonable in light of Norris 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.
[5] Second, the state court unreasonably applied federal law
by imposing an additional requirement when assessing Mus-
ladin’s “inherent prejudice” claim. Here, the court specifically
found “the wearing of photographs of victims in a courtroom
to be an ‘impermissible factor coming into play’ ” (emphasis
added). Under Williams and Flynn, that finding, in itself
establishes “inherent prejudice” and requires reversal. Indeed,
the present finding goes beyond the finding that was held to
require reversal in Williams and Norris and that was described
as requiring reversal in Flynn. 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. Neverthe-
less, after setting forth this finding, the state court added that,
although the practice of wearing such buttons “should be dis-
ered a similar question when a defendant, accused of killing a prison
guard, challenged the presence of uniformed officers in the audience 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 officer. 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).
4068 MUSLADIN v. LAMARQUE
couraged,” 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 “inherent preju-
dice” 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-
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).2
[6] 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)).3 Both
2
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.”).
3
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,
MUSLADIN v. LAMARQUE 4069
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
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.4
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 would have had to meet that standard. Rather, it may have simply
been refuting the defendant’s contention that the challenged practice had
the described effect.
4
We have consistently granted relief in this circuit on Williams-Flynn
grounds without requiring the defendant to show that the challenged prac-
4070 MUSLADIN v. LAMARQUE
IV. Conclusion
[7] In finding the wearing of buttons depicting the deceased
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 uncon-
stitutional.” Flynn, 475 U.S. at 568. Instead of granting relief,
however, the state court, disregarding the consideration 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 also unrea-
sonably held that “branding” the defendant with “an unmis-
takable mark of guilt” is necessary to grant relief even though
it had already 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 Mus-
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 was necessary. To the contrary, we have noted that it
may serve an alternative to the basic test, which remains the traditional
standard by which we determine the existence of inherent prejudice. See
Williams 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 4071
ladin’s petition for habeas corpus and remand for issuance of
the writ.
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.
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.
4072 MUSLADIN v. LAMARQUE
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
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
MUSLADIN v. LAMARQUE 4073
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
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)).
4074 MUSLADIN v. LAMARQUE
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.