Mathew Musladin v. Anthony Lamarque, Warden

427 F.3d 647 Mathew MUSLADIN, Petitioner-Appellant, v. Anthony LAMARQUE, Warden, Respondent-Appellee. No. 03-16653. United States Court of Appeals, Ninth Circuit. October 21, 2005. David W. Fermino, Esq., Federal Public Defender's Office, San Francisco, CA, for Petitioner-Appellant. Gregory A. Ott, Esq., Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee. Before REINHARDT, THOMPSON, and BERZON, Circuit Judges. ORDER 1 The petition for panel rehearing is DENIED. 2 The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R.App. P. 35. The request for rehearing en banc is DENIED. 3 KLEINFELD, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc: 4 I respectfully dissent from the order denying rehearing en banc. We have effectively erased a statutory provision designed to restrict the power of the lower federal courts to overturn fully…

ORDER

The petition for panel rehearing is DENIED.

The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonreeused active judges in favor of en banc reconsideration. Fed. R.App. P. 35. The request for rehearing en banc is DENIED.

join, dissenting from denial of rehearing en banc:

I respectfully dissent from the order denying rehearing en banc. We have effectively erased a statutory provision designed to restrict the power of the lower federal courts to overturn fully reviewed state court criminal convictions. And we have sharpened a serious circuit split.

Musladin was convicted of murder, and his conviction was upheld through direct and collateral review in the California courts. The California Court of Appeal carefully and reasonably applied the relevant precedents of the United States Supreme Court, but arguably deviated from the implications of a Ninth Circuit precedent.

In 1996, Congress adopted the Antiter-rorism and Effective Death Penalty Act (AEDPA), amending the standard that federal courts must apply to state criminal convictions in habeas cases. The statute as amended says that we may grant a habeas petition if and only if the last reasoned 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.” 1 Our decision in this case has the practical effect of erasing the statutory…

join, dissenting from the denial of rehearing en banc:

I join Judge Kleinfeld’s dissent from the denial of rehearing en banc. I write separately to underscore that it was not an “unreasonable application of clearly established federal law” for the California Court of Appeal to deny habeas relief notwithstanding its determination that the wearing of victims’ photographs in a courtroom constitutes an “impermissible factor coming into play.”

The panel opinion suggests that, once the California Court of Appeal “specifically found ‘the wearing of photographs of victims in a courtroom to be an “impermissible factor coming into play,” ’ ” Musladin’s conviction could not stand. See Musladin v. Lamarque, 403 F.3d 1072, 1076 (9th Cir.2005) (panel’s emphasis). The rationale offered in support of this conclusion is that, “[ujnder Williams and Flynn,” the finding of an impermissible factor coming into play “in itself establishes ‘inherent prejudice’ and requires reversal.” Id.

The panel opinion misconstrues Williams and Flynn. In Williams, the Court established that putting a defendant on trial in prison garb is constitutional error of the variety amenable to harmless-error analysis. See…