Mathew Musladin v. Anthony Lamarque, Warden

403 F.3d 1072 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 April 8, 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, California, 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. Opinion by Judge REINHARDT; Dissent by Judge THOMPSON. REINHARDT, Circuit Judge: 1 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 "victim"? We conclude…

Opinion by Judge REINHARDT; Dissent by Judge THOMPSON.

. 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 “victim”? 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 “victim’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 *1073 constituted an unreasonable application of Supreme Court law. Accordingly, we reverse the district court’s denial of Musla-din’s…

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 *1080 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,…