Jarrett

concurring:

I agree with my colleagues’ conclusion that the deferential AEDPA standard of review precludes relief in the instant case. There is simply no federal law explaining that it is inappropriate and unconstitutional to — on multiple occasions — permit the jury to take home child pornography. 1 I part company, however, with my colleagues’ conclusion that the error that occurred here not only is amenable to harmless error review but was, in fact, harmless.

What we have before us is akin to the trial judge sending the jury home with the murder weapon in a murder case or heroin in a drug trafficking case: Jarrett was on trial for sending “harmful matter” to a minor, and the trial court allowed the jury to take home copies of the “harmful matter” — exhibits containing more than 60 pages of explicit instant message transcripts and approximately 25 explicit pornographic photographs, some of which allegedly depicted children. Then, the trial court permitted the jury to take the exhibits home on two subsequent occasions, once upon the request of a juror. I think *696 it is obvious that the trial court committed constitutional error, and I am convinced that its error was…

MEMORANDUM *

Appellant Enoch King Jarrett appeals the district court’s denial of his petition for habeas relief from his California state conviction on one count of attempting to commit a lewd act upon a child, seven counts of attempting to send harmful matter to a minor over the internet, and one count of attempting to send harmful matter to a minor over the telephone. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

We do not approve of or endorse the procedure of allowing jurors to take graphic, pornographic pieces of evidence home with them during the course of a criminal trial. We also, however, cannot say the California Court of Appeal, in holding that defense counsel’s assent to this procedure waived appellant’s claims that his constitutional rights were violated, issued 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). Generally, “[t]he most basic rights of criminal defendants are ... subject to waiver.” Peretz v. United States, 501 U.S. 923, 936 , 111 S.Ct. 2661 , 115 L.Ed.2d 808 (1991). In certain cases…