CRIMINAL PROCEDURE--HABEAS CORPUS--NINTH CIRCUIT USES CIRCUIT OPINIONS TO INTERPRET "CLEARLY ESTABLISHED FEDERAL LAW."--Musladin v. Lamarque, 403 F.3d 1072 (9th Cir.), reh'g denied, 427 F.3d 647 (9th Cir. 2005).
Federal habeas review of state decisions seeks to balance federal interests in protecting constitutional rights against state interests in the finality of criminal proceedings. (1) With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), (2) Congress tipped the balance in favor of finality by curtailing the ability of federal courts to grant habeas relief, mandating that relief shall not obtain unless a state's adjudication "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." (3) Although AEDPA's language makes clear that the Supreme Court, and not inferior federal courts, shall be the final voice on what constitutes federal law, the question remains what role, if any, circuit decisions should play in the interpretation of "clearly established federal law." Recently, in Musladin v. Lamarque, (4) the Ninth Circuit maintained that circuit decisions have "persuasive value in an assessment of the meaning of the federal law that [is] clearly-established." (5) This interpretation was unnecessary to the Ninth Circuit's decision in Musladin and conflicts with both the legislative intent behind AEDPA and the Court's interpretation of the statute, providing the Supreme Court with a viable basis for reversal. Further, the Ninth Circuit's decision sharpened a circuit split in which the majority position favors disregarding circuit precedent in issuing habeas relief. The Ninth Circuit's circumvention of AEDPA's mandate likely represents a strategic expression of its own discomfort with the statute, a discomfort that may include concerns regarding the statute's constitutionality.
On May 13, 1994, Mathew Musladin picked up his three-year-old son from the house of his estranged wife, Pamela. (6) A fight broke out between Musladin and his wife, at which point Pamela's brother, Michael Albaugh, and her fiance, Tom Studer, rushed out to help. (7) Musladin, allegedly believing both Studer and Albaugh to be armed, shot at Studer. (8) According to the prosecution, Musladin then followed Studer into the garage and fired a second shot; the bullet ricocheted into Studer's head, ultimately killing him. (9) Musladin contended that he fired out of fear in Studer's general direction and then drove away. (10) Musladin claimed both perfect and imperfect self-defense. (11) During the fourteen-day jury trial, Studer's family sat in the courtroom directly behind the prosecution, and at any one time, at least three members of the family wore buttons bearing Studer's photograph. (12) The trial judge denied Musladin's motion to have the buttons removed, and the jury convicted Musladin of first-degree murder. (13)
On appeal, Musladin argued that the buttons depicting the victim violated his constitutional right to a fair trial. (14) The California Court of Appeal rejected this argument and affirmed the conviction. (15) The court first identified the appropriate test for inherent prejudice: "The test for inherent prejudice is not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether an unacceptable risk is presented of impermissible factors coming into play." (16) The court then turned to Norris v. Risley, (17) in which the Ninth Circuit found that the wearing of "Women Against Rape" buttons at a rape trial presented an "unacceptably high" risk of juror prejudice because the buttons conveyed the message that various spectators believed the defendant was guilty. (18) The court distinguished Musladin's case from Norris, stating that the rape buttons conveyed a message of guilt, whereas the buttons depicting the deceased more likely conveyed a message of grief. …