Brian Aust v. Chuck Seeley

MEMORANDUM

Brian Matthew Aust petitions for habeas relief after being convicted of rape and sentenced to 100 months imprisonment. His petition is subject to the Antiterrorism and Effective Death Penalty Act. See Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir.1999). The district court denied Aust’s petition. We reverse and direct the district court to grant Aust’s petition because we conclude that Aust received ineffective assistance of counsel.

Aust twice moved for mistrial based on the prosecutor’s references at trial to Aust’s silence during a police interview after Aust was advised of his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Aust argues the trial court’s denial of his motion for mistrial was contrary to Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), and an unreasonable application of Doyle, Michigan v. Mosley, 423 U.S. 96 (1975), and Connecticut v. Barrett, 479 U.S. 523 , 107 S.Ct. 828 , 93 L.Ed.2d 920 (1987). Although we conclude that Aust selectively invoked his right to remain silent, and therefore the prosecutor’s comments were improper, we hold the trial court’s denial of Aust’s motion was neither…