                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1



               United States Court of Appeals
                                      For the Seventh Circuit
                                      Chicago, Illinois 60604

                                            June 5, 2007


                                               Before

                                Hon. JOHN L. COFFEY, Circuit Judge

                                Hon. TERENCE T. EVANS, Circuit Judge

                                Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-1276

JOSEPH L. VAN PATTEN,                                   Appeal from the United States District
           Petitioner-Appellant,                        Court for the Eastern District of Wisconsin.
     v.
                                                        No. 98 C 1014
JEFFREY P. ENDICOTT,1
           Respondent-Appellee.                         Rudolph T. Randa, Chief Judge.


                                             ORDER

         After being convicted in the Wisconsin state courts upon a plea of no contest to a charge
of first degree reckless homicide (with a penalty enhancement for committing the offense while
using a dangerous weapon), Joseph L. Van Patten was sentenced to a term of 25 years. After
exhausting his remedies in state court, Van Patten filed a petition for federal habeas relief (28
U.S.C. § 2254), which the district court denied. On appeal, we granted the petition, holding that
the state court proceeding--where his lawyer appeared via speakerphone at the critical hearing
when the no contest plea was entered--was, under the circumstances, a violation of Van Patten’s
right to counsel as analyzed under United States v. Cronic, 466 U.S. 648 (1984). Our opinion is
reported at Van Patten v. Deppish, 434 F.3d 1038 (7th Cir. 2006).




       1
           Jeffrey P. Endicott is now the correct defendant in this case.
No. 04-1276                                                                                        2



        After a petition for panel rehearing (and for rehearing en banc) was denied, the
respondent filed a petition for certiorari. While that petition was pending, the Supreme Court
decided Carey v. Musladin, 127 S. Ct. 649 (2006), another case addressing a claim under
§ 2254. The Supreme Court then remanded this case to us for further consideration in light
of its new ruling.

       Nothing in Musladin requires that our 2006 opinion be changed. The petitioner in
Musladin claimed that his trial was unfair because spectators in the courtroom wore buttons
bearing the image of the victim. The Supreme Court held that he was not entitled to relief
under § 2254 because there was no “clearly established Federal law” holding that conduct
by courtroom spectators deprives a defendant of a fair trial. While the Supreme Court had
previously addressed claims based on state-sponsored courtroom practices, the effect of
conduct by spectators was “an open question” in the Court’s jurisprudence.

        Unlike Musladin, this case does not concern an open constitutional question. The
Supreme Court has long recognized a defendant’s right to relief if his defense counsel was
actually or constructively absent at a critical stage of the proceedings. Neither § 2254 nor
Musladin limits relief to the precise factual situations addressed in the Supreme Court’s
previous cases. The technology employed in taking Van Patten’s no contest plea (the use
of a speakerphone) may have been novel, but the legal principle presented by the case was
not. Our 2006 opinion and judgment are reinstated.




COFFEY, Circuit Judge, dissenting,

        The United States Supreme Court vacated the prior judgment and remanded this case to
this court for further proceedings to determine whether to amend our opinion in view of its
decision in Carey v. Musladin, 127 S. Ct. 649 (2006).. The Majority let stand our opinion in Van
Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), vacated sub nom. Schmidt v. Van Patten, 127
S. Ct. 1120 (2007).

        The Majority Opinion does not comport with Musladin. In Musladin, the court instructed
lower courts to read 28 U.S.C. § 2254(d)(1) narrowly. Section 2254 of Title 28 of the United
States Code provides that:

         (d) An application for a writ of habeas corpus on behalf of a person
       in custody pursuant to the judgment of a State court shall not be
       granted with respect to any claim that was adjudicated on the merits
       in State court proceedings unless the adjudication of the claim–
              (1) resulted in a decision that was contrary to, or
No. 04-1276                                                                                           3



          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).

         Lower courts ruling after Musladin have heeded this directive and have denied habeas
corpus relief in situations in which state courts did not rule contrary to or unreasonably apply
clearly established United States Supreme Court holdings (not dicta). See, e.g., Nguyen v.
Garcia, 477 F.3d 716 (9th Cir. 2007); Locke v. Cattell, 476 F.3d 46 (1st Cir. 2007); Stewart v.
Secretary, Department of Corrections, 476 F.3d 1193 (11th Cir. 2007).

        To the best of my knowledge, the United States Supreme Court has never held that an
attorney is presumed to be ineffective if he participates in a plea hearing by speaker phone rather
than by physical appearance. No such case has been cited to us and no factual situation of this
nature has come to the court’s attention. Thus, I do not conclude that the decision of the
Wisconsin Court of Appeals was erroneous. The Majority has not followed the language in
Musladin where Justice Thomas, writing for the Court, holds that “given the lack of holdings
from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct”. . .
. “the Court of Appeals improperly concluded that the California Court of Appeal’s decision
was contrary to or an unreasonable application of clearly established federal law as determined
by this Court, “ Musladin, 127 S. Ct. at 654, In Van Patten’s case the record reveals no
prejudice to the petitioner and the petitioner did not object during the proceedings. Therefore, I
respectfully DISSENT from the court’s erroneous decision to allow Van Patten v. Deppisch to
stand as written.
