Today’s Argument in Carey v. Musladin

By Amy Howe
on Oct 11, 2006 at 6:34 am

In the second argument today, No. 05-785, Carey v. Musladin, the Court will consider a California prisoner’s claim, made on federal habeas, that buttons worn by a murder victim’s family at his trial bearing the victim’s picture violated his constitutional right to a fair trial. In addressing this question, the Court is likely to shed additional light on an issue important to federal habeas review generally: what constitutes “clearly established Federal law as determined by the Supreme Court of the United States” for purposes of the relevant habeas statute, 28 U.S.C. 2254(d).

California Deputy Attorney General Gregory Ott will argue on behalf of the petitioner, Warden Thomas Carey. David Fermino of San Francisco will argue on behalf of respondent Mathew Musladin.

In 1994, Mathew Musladin shot and killed Tom Studer, the fiancé of Musladin’s estranged wife, in a domestic dispute. At Musladin’s trial, at which Musladin contended that he had killed Studer in self-defense, members of Studer’s family wore buttons bearing Studer’s photo. Musladin objected to the buttons on the theory that – particularly in light of his self-defense argument – they improperly portrayed Studer as the innocent victim in the dispute, but the trial court overruled his objection. Musladin was subsequently convicted of, inter alia, first-degree murder, and sentenced to thirty-two years to life in prison.

On appeal, Musladin contended that the buttons worn by the Studer family had deprived him of his constitutional right to a fair trial. The California Court of Appeal rejected this argument, holding that Musladin had not shown “inherent prejudice” from the buttons. The court explained that although Musladin had met the first prong of the test for “inherent prejudice” because the buttons were an “impermissible factor,” it did not “believe the buttons . . . branded [Musladin] ‘with an unmistakable mark of guilt’ in the eyes of the jurors.”

After exhausting his direct appeals, Musladin sought federal habeas relief. The district court rejected his petition, reasoning that “[a]lthough allowing the buttons was arguably not a prudent decision by the trial judge, it cannot be said that it was contrary to or an unreasonable application of clearly established law” as set forth by the Supreme Court in Estelle v. Williams, which held that compelling a defendant to wear prison clothes at his trial violates his right to a fair trial.

On appeal, a divided panel of the Ninth Circuit (in, as the state’s brief emphasizes, an opinion by Judge Reinhardt), reversed. It deemed the California Court of Appeal’s decision an unreasonable application of the Supreme Court’s decision in Estelle, particularly in light of a Ninth Circuit case, Norris v. Risley, in which spectators at a trial had worn “Women Against Rape” buttons.

The Ninth Circuit denied the state’s petition for rehearing and rehearing en banc over the dissent of seven judges. Writing for the dissent, Judge Kleinfeld emphasized that the panel had “effectively erased” Section 2254(d) insofar as no clearly established Supreme Court law governed Musladin’s case. The Supreme Court granted the state’s petition for certiorari on April 17, 2006.

Arguing in favor of reversal, the state contends first that the Ninth Circuit should have deferred to the decision of the California Court of Appeals. The state acknowledges that both Estelle and another Supreme Court case, Holbrook v. Flynn, “established a general principle that courtroom practices sometimes might be so inherently prejudicial as to violate the defendant’s right to a fair trial,” but argues that the state court’s decision is nonetheless entitled to deference because neither case was factually similar to Musladin’s. The Ninth Circuit’s failure to defer to the state court decision, the state contends, is compounded by its reliance on its own precedent, Norris. Only Supreme Court decisions can constitute “clearly established law” for purposes of Section 2254(d). Moreover, the state court decision cannot be “objectively unreasonable” simply because it conflicts with circuit or state precedent.

For his part, Musladin contends that the state has waived its argument that his case is not governed by the general principle established in Estelle and Holbrook because it is factually distinguishable. In any event, he emphasizes, the state is incorrect: the Supreme Court has held that a general principle can be “clearly established” for purposes of Section 2254(d) even if the principle has not been applied in a Supreme Court case that is factually on point. Musladin dismisses the state’s argument that the Ninth Circuit improperly relied on Norris as a “red herring,” explaining that the Ninth Circuit mentioned Norris on this point “only in a footnote.” Rather, he notes, “the same conclusion could have been reached with or without Norris.”