                                                                             FILED
                            NOT FOR PUBLICATION                              NOV 23 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BRIAN MATTHEW AUST,                             No. 09-36075

               Petitioner - Appellant,          D.C. No. 1:07-cv-01284-PA

       v.
                                                MEMORANDUM*
CHUCK SEELEY, Superintendent at
WCCF,

               Respondent - Appellee.

                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                      Argued and Submitted November 3, 2010
                                 Portland, Oregon

Before: ALDISERT, W. FLETCHER and FISHER, Circuit Judges.**

      Brian Matthew Aust petitions for habeas relief after being convicted of rape

and sentenced to 100 months imprisonment. His petition is subject to the

Antiterrorism and Effective Death Penalty Act. See Furman v. Wood, 190 F.3d


           *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
1002, 1004 (9th Cir. 1999). The district court denied Aust’s petition. We reverse

and direct the district court to grant Aust’s petition because we conclude that Aust

received ineffective assistance of counsel.

      Aust twice moved for mistrial based on the prosecutor’s references at trial to

Aust’s silence during a police interview after Aust was advised of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966). Aust argues the trial court’s denial of

his motion for mistrial was contrary to Doyle v. Ohio, 426 U.S. 610 (1976), and an

unreasonable application of Doyle, Michigan v. Mosley, 423 U.S. 96 (1975), and

Connecticut v. Barrett, 479 U.S. 523 (1987). Although we conclude that Aust

selectively invoked his right to remain silent, and therefore the prosecutor’s

comments were improper, we hold the trial court’s denial of Aust’s motion was

neither contrary to, nor an unreasonable application of, clearly established federal

law given the facts the trial court had before it at the time it made its decision. See

28 U.S.C. § 2254(d)(1).

      If, however, the trial court had had the opportunity to review the transcript of

the police interview in question, Aust’s selective invocation of his right to remain

silent would have been plain. We presume the trial court would have followed the

law and disallowed the prosecutor’s comments. The court twice expressed to

counsel that it was at a disadvantage ruling on the motion for mistrial without


                                           2
having reviewed the transcript of the police interview. We conclude that Aust’s

attorney’s failure to provide the trial court with the transcript constituted deficient

performance under Strickland v. Washington, 466 U.S. 668, 687 (1984), and that

there is a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different, id. at 694. Because there was competing

evidence presented at trial, Aust’s credibility was of paramount importance. The

prosecutor’s repeated comments on Aust’s silence, which impugned Aust’s

credibility, were therefore highly prejudicial to his defense. Accordingly, the

district court’s denial of Aust’s habeas petition is REVERSED. We REMAND

to the district court with instructions to grant the petition.




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