Palumbo

MEMORANDUM **

I.

A jury convicted John Palumbo of murdering Darrell Hawkins, Jr. Over objection, the trial judge permitted members of Hawkins’ family to wear badges with Hawkins’ image in the courtroom, subject to certain restrictions. The California Court of Appeal held that allowing the family to wear the badges was harmless constitutional error. The United States District Court for the Southern District of California denied Palumbo’s petition for writ of habeas corpus. We granted a certificate of appealability to consider whether petitioner was denied a fair trial.

Under the habeas statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, we may grant the petition only if the state proceeding resulted in “a decision that 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).

The Supreme Court has defined “contrary to” as applying a rule contradicting the Court’s governing law, or reaching a result different from the Court on materially indistinguishable facts. Early v. Packer, 537 U.S. 3, 8 , 123 S.Ct. 362 , 154 L.Ed.2d 263 (2002). The…

dissenting.

I respectfully dissent. The Supreme Court has long recognized that certain practices or circumstances during a criminal trial are so inherently prejudicial that a defendant need not show actual prejudice to establish that his due process rights have been violated. Holbrook v. Flynn, 475 U.S. 560, 573 , 106 S.Ct. 1340 , 89 L.Ed.2d 525 (1986); Estelle v. Williams, 425 U.S. 501, 504 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976); Estes v. Texas, 381 U.S. 532, 542 , 85 S.Ct. 1628 , 14 L.Ed.2d 543 (1965). In those situations, the practices or circumstances create such a probability that prejudice will result that courts need not consider the actual effect they had on the proceedings. Estes, 381 U.S. at 542-43 . The reasoning behind this principle was summed up by Justice Black nearly fifty years ago:

In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623 , 99 L.Ed. 942 (1955) (emphasis added, citation and internal quotation omitted). Even earlier, Chief Justice Taft had explained that:

Tumey v. Ohio, 273 U.S. 510, 532 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927) (emphasis added). The Court has explained that, in resolving claims that circumstances were such as to prevent a fair trial,…