Carey v. Musladin


Did the Ninth Circuit overstep its bounds by applying circuit court precedents, rather than Supreme Court precedents, to determine that Musladin was entitled to habeas relief?

Oral argument: 
October 11, 2006


Mathew Musladin was convicted in California state court of the first-degree murder of his ex-wife’s fiancé, Tom Studer. During the trial, Studer’s family members wore large buttons, visible to the jury, bearing a photograph of Studer. Musladin appealed his conviction on the grounds that the buttons influenced the jury and eroded his presumption of innocence. When his appeal failed, Musladin filed a habeas corpus petition with the federal District Court, which was also rejected. Relying on another Ninth Circuit case, the Court of Appeals for the Ninth Circuit held that the District Court should have granted Musladin’s petition. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may only overturn a state court’s decision on habeas grounds if the state decision was contrary to or involved an unreasonable application of federal law as determined by the Supreme Court. Since the Ninth Circuit’s decision to overturn Musladin’s conviction relied heavily on Ninth Circuit case law, not a Supreme Court decision, the Supreme Court’s  decision in this case  will determine what role, if any, circuit court opinions can play in the interpretation of  federal  law under AEDPA.

Questions as Framed for the Court by the Parties 

In the absence of controlling Supreme Court law, did the Court of Appeals for the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d)(1) by overturning respondent’s state conviction of murder on the ground that the Courtroom spectators included three family members of the victim who wore buttons depicting the deceased?


On May 13, 1994, Mathew Musladin went to the home of his estranged wife, Pamela, to pick up their son for scheduled visitation. Musladin v. Lamarque, 427 F.3d 653, 654 (9th Cir. 2005). Pamela lived in that house with her fiancé, Tom Studer, and her brother, Michael Albaugh. Id. When Musladin arrived, he and Pamela had an argument that resulted in Musladin pushing Pamela to the ground. Id. Pamela testified at trial that when Studer and Albaugh came out of the house to help her, Musladin grabbed a gun from his car and fired twice at Studer, killing him. Id. However, Musladin testified that Studer and Albaugh, when they appeared, were carrying a gun and machete that they used to threaten him. Id. According to Musladin, he shot in Studer’s general direction in self-defense after seeing the weapons and being threatened. Id. Experts on both sides agreed that Studer was killed by a ricochet shot, not a direct hit, but that there was no doubt that Musladin fired the bullet that killed him. See Id. at 655.

Musladin was charged with the first-degree murder of Studer in California state court. Id. at 654. The trial lasted for fourteen days, during which Studer’s family sat in the front row of the gallery, directly behind the prosecution and clearly visible to the jury. Id. at 655. Every day, at least three of Studer’s family members wore a button, several inches in diameter, bearing Studer’s photograph. Id. Before the opening statements, Musladin’s lawyers asked the judge to instruct Studer’s family to avoid wearing the buttons in court, since the buttons could influence the jury and erode Musladin’s presumption of innocence. Id. However, the judge denied the request, and Musladin was convicted of first-degree murder and three other related offenses. Id.

Musladin then appealed his conviction in the California Court of Appeals and lost. Id. When this appeal failed, Musladin filed a habeas corpus petition in the federal District Court for the Northern District of CaliforniaId. The court denied his petition, and the case went to the Ninth Circuit Court of Appeals, which overturned his conviction and held that Musladin was entitled to have his habeas petition granted. Id. at 658.


The Government’s Argument (on behalf of Warden Thomas Carey)

Previous cases before the Supreme Court have established the general principle that some courtroom practices can be so inherently prejudicial to the jury as to violate the defendant’s right to a fair trial. See Brief for Petitioner at 10. The Court’s decisions in Estelle v. Williams, 425 U.S. 501 (1976) and Holbrook v. Flynn, 475 U.S. 560 (1986) addressed prejudicial courtroom practices, but neither case addressed the behavior of courtroom spectators, and the Supreme Court did not establish any guidelines to determine how prejudicial a given practice actually was. See Brief for Petitioner at 10. Therefore, since the rule at issue in this case is general and there are no Supreme Court cases directly on point, Carey argues that the state court’s decision should have been given maximum deference. See Brief for Petitioner at 11.

AEDPA requires that “clearly established federal law” under 28 U.S.C. § 2254(d)(1) be law that has been determined by the Supreme Court. Under AEDPA, the state court’s decision can only be overturned if it is contrary to or unreasonably applies that federal law. See Brief for Petitionerat 13. A strict reading of 28 U.S.C. § 2254(d)(1) leaves no place for circuit or state law to determine or shape “clearly established federal law.” See Brief for Petitioner at 14. Although the Ninth Circuit did refer to the Supreme Court’s decisions in Williams and Flynn in its opinion, it also relied heavily on another Ninth Circuit case, Norris v. Risley, 918 F.2d 828 (1990). Carey contends that Norris, as a pre-AEDPA, non-Supreme Court case, is insufficient to define federal law for purposes of habeas relief, and the Ninth Circuit’s reliance on that case therefore amounted to essentially reviewing the state judgment de novo. See Brief for Petitioner at 13. Since AEDPA was intended to substantially restrict the grounds on which a federal court could overturn a state criminal decision, such de novo review is not only contrary to AEDPA itself, but also to the legislative intent behind it. See Ninth Circuit Uses Circuit Opinions to Interpret “Clearly Established” Federal Law, 119 Harv. L. Rev. 1931 (2006).

Carey argues that the Ninth Circuit also erred in its interpretation of the state court’s decision. The state court concluded that while the wearing of victims’ photographs in the courtroom was “’an impermissible factor coming into play’... we do not believe the buttons in this case branded defendant ‘with an unmistakable mark of guilt’ in the eyes of the jurors.” See Brief for Petitioner at 31 (quoting Flynn). The Ninth Circuit interpreted this language as evidence that the state court had found not only an unacceptable risk of prejudicial courtroom practice, but also evidence that the prejudicial practice had actually occurred. See Id. In the Ninth Circuit’s opinion, this evidence implied that the state court imposed the additional requirement of branding the defendant with the “unmistakable mark of guilt,” as well as the existing requirement that the practice be inherently prejudicial. See Id.However, Carey argues, the context of the state court’s language reveals this interpretation to be false; among other reasons, the state actually contrasted Norris (which found constitutional error) with this case, and held that the buttons worn by Studer’s family members were “unlikely to have been taken as a sign of anything other than the normal grief occasioned by the loss of a family member.” See Id. at 32.

Finally, Carey notes that the Ninth Circuit’s conclusion that an inherently prejudicial practice constitutes automatic structural error is contrary to Supreme Court precedent. See Id. at 37. If a given practice carries the risk of prejudice to the jury, it is subject to review, not automatic reversal, except in a handful of specialized cases. See Id. In this case, there is no evidence that the jury even noticed the buttons, much less that they were influenced by them, or in fact even knew that the buttons depicted Studer. See Id. at 39.

Musladin’s Argument

Musladin argues that the Ninth Circuit did not exceed its authority under AEDPA by using the Norris case. Musladin interprets the Ninth Circuit’s decision as essentially based on the rule from Williams and Flynn, both Supreme Court cases, and the decision would have been the same if Norris had never been decided at all. See Brief for Respondent at 14. Norris was used as persuasive authority, not mandatory authority, to back up the Williams/Flynn rule; the Ninth Circuit states explicitly that its “decision in Norris v. Risley [citation omitted] has persuasive value in an assessment of the meaning of the federal law that was clearly-established by Williams and Flynn.” See Musladin v. Lamarque, 427 F.3d at 657 (emphasis added). Musladin claims that such use to help determine or ascertain whether courts are in agreement on the general rule is not forbidden. See Brief for Respondent at 17. AEDPA limits “clearly established federal law” to Supreme Court decisions, but state or lower federal decisions may still play some role in the analysis of what is “clearly established.” See Id. at 18.

Musladin also contends that the Ninth Circuit’s analysis of the state court decision was correct. The Supreme Court’s test for inherently prejudicial courtroom behavior, from Williams and Flynn, is that inherent prejudice is established when “an unacceptable risk is presented of impermissible factors coming into play.” See Id. at 24. Under this test, Musladin argues, the state court correctly determined that the buttons constituted inherent prejudice, and the inquiry should have ended there. See Id. However, Musladin argues that the state court’s denial of his claim on the basis that the buttons did not brand him with “an unmistakable mark of guilt in the eyes of the jurors” was an unreasonable application of federal law, because the “unmistakable mark of guilt” was unnecessary to satisfy the test for inherent prejudice. See Id. The Supreme Court has never required that a questionable courtroom behavior go above and beyond imposing the unacceptable risk in order to constitute inherent prejudice, and this extra requirement of “branding” the defendant is too high and unreasonable a burden. See Id. at 25.

Finally, Musladin argues that the Supreme Court need not undertake a harmless error analysis to determine whether the buttons actually caused the jury to be prejudiced against Musladin. The state court waived its claim that the constitutional error in this case was harmless by failing to bring up the issue of harmless error in a timely fashion. See Id. at 34. Alternatively, Musladin contends that if the Supreme Court finds that the state court did not waive its claim, then the matter should be remanded to the Ninth Circuit, which did not undertake the harmless error analysis when it originally dealt with the case. See Id. at 35. If the Supreme Court does feel the need to do the analysis itself, Musladin claims that the writ of habeas corpus must be issued, because the error in this case had a “substantial and injurious influence on the jury’s decision.” See Id. at 37. Since the basis for Musladin’s argument at trial was that he shot Studer in self-defense, the buttons worn by Studer’s family created the presumption that Musladin was the attacker and Studer the innocent victim. See Id. at 38.


Prisoners who have no other available recourse may petition a court for a writ of habeas corpus, which provides for review where a person might be imprisoned unconstitutionally. The Supreme Court’s decision in this case will determine the extent to which circuit court and other lower court opinions can influence the interpretation of federal law for purposes of habeas relief. See Brief of Amici Curiae Hawaii, et al. in Support of Petitioner at 7. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a circuit court is strictly prohibited from granting habeas relief unless the 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.” See 28 U.S.C. § 2254(d)(1). Federal habeas review of state decisions must balance the federal interest in protecting constitutional rights with the state interest in finality of criminal proceedings, and AEDPA has tipped this balance toward finality. See Ninth Circuit Uses Circuit Opinions to Interpret “Clearly Established” Federal Law, 119 Harv. L. Rev. 1931 (2006).

The question is whether the Ninth Circuit’s decision in this case violates the spirit of AEDPA by allowing circuit court opinions to have too much influence on the interpretation of “clearly established federal law.” Petitioner Carey argues that it does. Under Carey’s argument, if the Court decides for Musladin and allows the Ninth Circuit decision to stand, AEDPA’s requirement of deference to the Supreme Court would essentially be erased, allowing a circuit court to “simply point to its own case law regardless of other case law to the contrary.” See On the Docket: Carey, Thomas (warden) v. Musladin, Medill Journalism, April 17, 2006 (quoting Gregory A. Ott of the California Attorney General’s office). The finality of criminal proceedings in a state court will also be called into question. Permitting federal courts to overturn state decisions using a looser definition of “clearly established federal law” implies that state courts are less willing or able to apply federal law faithfully, and AEDPA was intended to prevent just such interference. See Brief of Amici Curiae Hawaii, et al. in Support of Petitionerat 8.

Respondent Musladin, argues that the Ninth Circuit’s decision does not violate AEDPA. He contends that although the Supreme Court is the final voice on federal law, the Ninth Circuit’s decision merely permits the decisions of other federal courts to have persuasive value in the interpretation of that Supreme Court-decided law. See Ninth Circuit Uses Circuit Opinions to Interpret “Clearly Established” Federal Law, 119 Harv. L. Rev. 1931 (2006). If the Court overturns the Ninth Circuit on this matter, the circuit courts will lose that power to look to their own case law interpreting Supreme Court decisions. This result would strip some power from the courts of appeals, significantly impairing judicial review in this area.

The outcome of this case will affect not only state prisoners seeking habeas relief and the courts hearing their cases, but also the families of crime victims who seek to show support for their loved ones at trial. Although this case hinges on the interpretation of the habeas corpus statute, it also carries significant implications for due process, a fair trial, and the presumption of a defendant’s innocence. Respondent argues that the buttons worn by the Studer family worked to undermine the presumption of innocence in the case because the buttons argued to the jury that the family’s loss was at the hands of MusladinBrief for Petitioner at 9. Overturning the Ninth Circuit’s decision carries the implication that public displays of emotion by spectators on matters before the jury are permissible. See Brief of Amicus Curiae Nat'l Assoc. of Crim. Defense Lawyers in Support of Respondent at 3. On the other hand, affirming the Ninth’s Circuit’s decision would diminish the interests and rights of crime victims and their families. See Brief of Amici Curiae National Crime Victim Law Institute et. al in Support of Petitioner at 10.


In making its decision, the Supreme Court will confront the fact that the role of state and circuit court decisions in interpreting federal law under 28 U.S.C. § 2254(d)(1) is considered by the majority of the circuits to be nonexistent; the Ninth Circuit is decidedly in the minority on this issue. See Ninth Circuit Uses Circuit Opinions to Interpret “Clearly Established” Federal Law, 119 Harv. L. Rev. 1931, 1931 (2006). This case turns on a narrow reading of 28 U.S.C. § 2254(d)(1). If the Court agrees with the Ninth Circuit and holds that circuit court decisions may be used to help interpret “clearly established federal law” determined by Supreme Court decisions, AEDPA’s requirement of deference to the Supreme Court will be all but erased. If the Court holds instead that “clearly established federal law” refers only to Supreme Court decisions and does not permit circuit court interpretation, the circuits will lose some power of judicial review.

Written by:

Kiernan E. Joliat

​Emily J. Green


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