                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MATHEW MUSLADIN,                          No. 03-16653
           Petitioner-Appellant,             D.C. No.
             v.                           CV-00-01998-JL
ANTHONY LAMARQUE, WARDEN,                Northern District
           Respondent-Appellee.            of California,
                                           San Francisco

                                             ORDER


                   Filed October 21, 2005

    Before: Stephen Reinhardt, David R. Thompson, and
             Marsha S. Berzon, Circuit Judges.

                          Order;
                Dissent by Judge Kleinfeld;
                   Dissent by Judge Bea


                          ORDER

  The petition for panel rehearing is DENIED.

   The full court was advised of the suggestion for rehearing
en banc. A judge of the court requested a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of the votes of the nonrecused active judges in favor
of en banc reconsideration. Fed. R. App. P. 35. The request
for rehearing en banc is DENIED.



                            14417
14418                 MUSLADIN v. LAMARQUE
KLEINFELD, Circuit Judge, with whom KOZINSKI,
O’SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, and
BEA, Circuit Judges, join, dissenting from denial of rehearing
en banc:

  I respectfully dissent from the order denying rehearing en
banc. We have effectively erased a statutory provision
designed to restrict the power of the lower federal courts to
overturn fully reviewed state court criminal convictions. And
we have sharpened a serious circuit split.

  Musladin was convicted of murder, and his conviction was
upheld through direct and collateral review in the California
courts. The California Court of Appeal carefully and reason-
ably applied the relevant precedents of the United States
Supreme Court, but arguably deviated from the implications
of a Ninth Circuit precedent.

   In 1996, Congress adopted the Antiterrorism and Effective
Death Penalty Act (AEDPA), amending the standard that fed-
eral courts must apply to state criminal convictions in habeas
cases. The statute as amended says that we may grant a
habeas petition if and only if the last reasoned state court
decision “was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by
the Supreme Court of the United States.”1 Our decision in
this case has the practical effect of erasing the statutory phrase
“as determined by the Supreme Court of the United States.”
Our tools for statutory construction are many,2 but they do not
include an eraser. Yet here we go, erasing the “clearly estab-
lished” phrase and expanding the “as determined” phrase. The
statute in nine states now says, as a practical matter, “contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
  1
    28 U.S.C. § 2254(d)(1) (emphasis added).
  2
    See 2A Norman J. Singer, Sutherland on Statutes and Statutory Con-
struction Part V, subpart A (6th ed. 2000).
                      MUSLADIN v. LAMARQUE                        14419
the United States, giving ‘persuasive weight’ to Ninth Cir-
cuit decisions that have applied Supreme Court deci-
sions.” We do not have that legislative authority.

   The facts of this case and of the controlling precedents
show just how clear our mistake is. Musladin, embroiled in a
custody dispute with his estranged wife, murdered her new
fiancé. At his trial, three members of the fiancé’s family sat
in the spectator section of the courtroom wearing buttons with
his picture on them. The buttons were two-to-four inch pic-
tures of the victim but had no words. Musladin argued in his
state court appeal and petition for review that the buttons
denied him due process of law by eroding his presumption of
innocence.

   The California Court of Appeal concluded that the buttons
contained no express message and were unlikely to signify
“anything other than the normal grief occasioned by the loss
of a family member.”3 The California Court carefully exam-
ined Estelle v. Williams4 and Holbrook v. Flynn5 (the relevant
Supreme Court decisions on) and Ninth Circuit cases. Though
the Court of Appeal noted that button wearing should be “dis-
couraged,” it held that the buttons did not amount to a denial
of due process because they did not brand Musladin “with an
unmistakable mark of guilt.”6

   The statute is quite clear that our task on review of Mus-
ladin’s petition for a writ of habeas corpus is not to examine
the California Court of Appeal decision as though we were a
higher California court. Rather, we exercise a much more lim-
ited and deferential review to determine whether the Califor-
nia Court of Appeal acted contrary to “clearly established . . .
  3
    People v. Musladin, No. H015159 at 21 (Cal. Ct. App. 1997).
  4
    Estelle v. Williams, 425 U.S. 501 (1976).
  5
    Holbrook v. Flynn, 475 U.S. 560 (1986).
  6
    People v. Musladin, No. H015159 at 22.
14420                   MUSLADIN v. LAMARQUE
Supreme Court” precedent or “unreasonabl[y]” applied it.7
The only question for us is whether there is any Supreme
Court authority that holds that silent signals of affiliation by
spectators in a courtroom deny a defendant due process by
eroding his presumption of innocence. The answer is that
there is no such case. That should be the end of our inquiry.

   The Supreme Court held in Estelle v. Williams that forcing
a defendant to wear prison clothes at trial is “inherently preju-
dicial” and denies due process.8 It held in Holbrook v. Flynn
that the presence of several armed uniformed officers in the
spectators’ row directly behind the prisoner is not inherently
prejudicial.9 Neither of these cases holds that a spectator’s
symbol of affiliation or even opinion denies due process to a
defendant.

   Dressing the defendant in “prison garb,” the Estelle prob-
lem,10 is not analogous to spectators wearing buttons. First,
prison garb is an unambiguous statement that the defendant is
already a prisoner. Second, it is a communication to the jury
of the government’s determination—not a non-governmental
spectator’s—that the defendant belongs in jail. The buttons,
by contrast, are ambiguous. They may mean “we really want
this defendant punished because we care a lot about his vic-
tim,” or they may merely mean “we care a lot about the vic-
tim,” without an implication that the defendant is the proper
person to be punished. Even more important, the spectators’
buttons do not imply any determination by the government.
Even if the buttons did imply that the spectators wanted the
defendant punished, that would not be as corrosive of the pre-
sumption of innocence as the government saying “this defen-
dant belongs in jail and he is already there because of our
determination.” Unlike the spectators’ buttons in this case, the
  7
    28 U.S.C. § 2254(d)(1).
  8
    Estelle, 425 U.S. at 530 n.10.
  9
    Flynn, 475 U.S. at 568-69.
  10
     Estelle, 425 U.S. at 503.
                        MUSLADIN v. LAMARQUE                         14421
prison garb in Estelle detracted from the presumption of inno-
cence and from the defendant’s dignity in the courtroom.11

   The presence of the armed officers in the spectator section
in Flynn more closely resembles the facts in our case than
does the prison garb in Estelle. Both involve what the jury
might perceive as communications from the spectators’ sec-
tion. But the Supreme Court held that the presence of the
armed officers did not deprive the defendant of due process
by corroding the presumption of innocence. And the armed
officers were far more likely to do so than spectators not asso-
ciated with the government because the officers represented
the government and might have communicated its judgment
that the defendant was dangerous. The Supreme Court held
that the armed officers did not deny due process because of
the “wider range of inferences that a juror might reasonably
draw from the officers’ presence.”12 The courtroom cannot be
totally free of indications that the state thinks the defendant is
guilty, for “jurors are quite aware that the defendant appearing
before them did not arrive there by choice or happenstance.”13
With these two Supreme Court cases as bookends—showing
what denies due process and what does not—the California
courts were well within the bounds of reasonable interpreta-
tion in determining that this case is more like Flynn. The but-
tons with a picture of the dead fiancé did not say or obviously
imply that the defendant killed him, just that the spectators
wearing them cared about him.

   So how did the panel majority manage to reach a different
result in the face of Supreme Court decisions plainly leaving
  11
     See id. at 518 (Brennan, J., dissenting) (“Identifiable prison garb robs
an accused of the respect and dignity accorded other participants in a trial
and constitutionally due the accused as an element of the presumption of
innocence, and surely tends to brand him in the eyes of the jurors with an
unmistakable mark of guilt.”).
  12
     Flynn, 475 U.S. at 569.
  13
     Id. at 567.
14422                  MUSLADIN v. LAMARQUE
room for the California courts’ conclusion and a statute limit-
ing us to Supreme Court decisions? The panel extended a
Ninth Circuit case, not a Supreme Court case, Norris v. Risley.14
But the statute says we cannot do that, with the express
restriction “as determined by the Supreme Court of the
United States.”15 The panel evades that restriction by holding
that we give “persuasive weight” to Ninth Circuit cases when
determining what is “clearly established Federal law, as deter-
mined by the Supreme Court.” The panel’s proposition means
that we will grant writs based on precedents other than those
of the Supreme Court. Ergo, the statutory restriction on our
power is erased.

   We held in Norris—before AEDPA—that the writ should
be granted where several female spectators wore “Women
Against Rape” buttons in the presence of jurors in “elevators,
in the courtroom, on their way to and from the courtroom,”
and while “the women served refreshments outside the court-
room on behalf of the state.”16 California could properly
decide the case at bar by distinguishing Norris, disagreeing
with Norris, or in complete ignorance of Norris. Under
AEDPA’s restriction to Supreme Court decisions, we are obli-
gated to deny the writ so long as the California decision was
not contrary to or an unreasonable application of Estelle and
Flynn. We cannot legitimately require the California courts to
follow Ninth Circuit decisions on pain of our letting their pris-
oners out onto the street.

   At least four of our sister circuits have expressly repudiated
the error our panel has made. The Sixth Circuit, in Mitzel v.
Tate, held that “[w]e may not look to the decisions of our cir-
cuit, or other courts of appeals, when ‘deciding whether the
state decision is contrary to, or an unreasonable application
  14
     Norris v. Risley, 918 F.2d 828 (9th Cir. 1990).
  15
     28 U.S.C. § 2254(d)(1) (emphasis added).
  16
     Norris, 918 F.2d at 829.
                        MUSLADIN v. LAMARQUE                        14423
of, clearly established federal law.’ ”17 The Tenth Circuit in
Welch v. City of Pratt held AEDPA “restricts the source of
clearly established law to [the Supreme] Court’s jurispru-
dence” and federal courts are therefore “no longer permitted
to apply our own jurisprudence.”18 The Seventh Circuit like-
wise determined that “[f]ederal courts are no longer permitted
to apply their own jurisprudence, but must look exclusively to
Supreme Court case-law.”19

   The Fourth Circuit has also held that habeas relief may be
granted only if “the state court decision is contrary to, or an
unreasonable application of Supreme Court jurisprudence,
and not circuit court precedent,” so “any independent opin-
ions we offer on the merits of the constitutional claims will
have no determinative effect in the case before us, nor any
precedential effect for state courts in future cases. At best, it
constitutes a body of constitutional dicta.”20 The Fourth Cir-
cuit expressly rejects the notion that the lower federal courts
need to provide “guidance” to the state courts on how to read
the Supreme Court opinions. There is

       no reason to presume that state courts are in need of
       our guidance in interpreting and applying the con-
       trolling Supreme Court precedents. Our charge under
       the statute is only to determine whether the state
       court’s adjudication of the claims before it was a rea-
       sonable one in light of the controlling Supreme
       Court law.21
  17
      Mitzel v. Tate, 267 F.3d 524, 531 (6th Cir. 2001) (quoting Herbert v.
Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)).
   18
      Welch v. City of Pratt, Kansas, 214 F.3d 1219, 1222 (10th Cir. 2000)
(internal citations and quotations omitted).
   19
      Bocian v. Godinez, 101 F.3d 465, 471 (7th Cir. 1996).
   20
      Bell v. Jarvis, 236 F.3d 149, 162 (4th Cir. 2000) (en banc).
   21
      Id. at 162.
14424                  MUSLADIN v. LAMARQUE
   Arguably our panel did not create the circuit split ex nihilo.
The panel notes that the Eighth Circuit in Williams v. Bowersox22
held that the “diversity of opinion” among federal courts on
a particular issue suggested that the state court did not unrea-
sonably apply Supreme Court precedent.23 But saying that the
state court decision is not unreasonable because some federal
courts have reached similar conclusions is not at all the same
as saying that the state court decision is unreasonable because
a circuit court has reached a contrary conclusion. The First
Circuit in Ouber v. Guarino24 and the Third Circuit in Matteo
v. Superintendent25 come much closer to supporting the
panel’s decision, but our panel is unique in how boldly it has
flown in the face of the statutory restriction to Supreme Court
decisions.

   Those of us who have actually tried cases to juries have fre-
quently observed how spectators communicate their feelings.
This communication is an unavoidable consequence of the
Constitutional guarantee of “public trial.”26 Sometimes there
is a wall of brown or blue in the spectators’ section, display-
ing that state or municipal police care a great deal about the
case. Sometimes the courtroom is full of Hells Angels colors,
signifying a concern for their brother in the defendant’s chair.
The local rape support center volunteers may crowd into the
seats behind the prosecutor in a rape trial while the victim sits
silently looking at the jurors through the entire trial. Defense
lawyers round up family members to show support for the
defendant by sitting behind the defense table.

  There is nothing wrong with the jury knowing that people
care about the case and the parties. Typically, the spectators
  22
     Williams v. Bowersox, 340 F.3d 667 (8th Cir. 2003).
  23
     Id. at 672.
  24
     Ouber v. Guarino, 293 F.3d 19, 26 (1st Cir. 2002).
  25
     Matteo v. Superintendent, 171 F.3d 877, 889-90 (3rd Cir. 1999).
  26
     U.S. CONST. amend. VI.
                         MUSLADIN v. LAMARQUE                         14425
arrange themselves like wedding guests choosing the bride’s
side or the groom’s side, with those who favor a party sitting
behind the lawyer for that side. In a public trial, the jury can
always see that a lot of people care about one side or the
other, or that no one cares except the parties and lawyers.
Good lawyers often use this to their advantage, and good
judges exercise prudence to avoid situations that might intimi-
date or prejudice the jury. Perhaps, as the California Court of
Appeal implied, the trial judge in this case should have told
the family members to remove their buttons. T-shirts with pic-
tures of the victim would be difficult, but buttons are easy.
There is no legitimate way for judges to prevent spectators in
a public trial from showing that they care about the case and
support one side or the other, even if only by where they sit
and who they look at with sympathy or hostility. Public con-
cern and public sympathy for one side or the other are part of
what it means for a trial to be “public.”

   The panel’s error is symptomatic of a deeper problem than
its misapplication of Supreme Court precedent to spectators’
photo buttons. Few things incumbent on powerful government
officials are more fundamental than their duty to comply with
the legal limitations on their power. Our panel has arrogated
to our court power that we do not legitimately possess.

   State judges take the same oath to uphold the Constitution
that we do and perform the same work we do, construing
Constitutional provisions and applying them to the facts
before them. We do not sit as a state appellate court. One
problem they sometimes have is deciding what to do about
lower federal court decisions. Obviously they have to follow
United States Supreme Court decisions, and they construe
them as routinely as we do. Obviously they do not have to fol-
low federal decisions on questions of state law.27 Not quite as
  27
    See generally 20 AM. JUR. 2D Courts § 225 (1965) (noting that state
courts free to ignore a federal ruling on a state law); see also Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 80 (1938) (holding that federal courts are bound
by state interpretations of state law); Collier v. Bayer, 408 F.3d 1279,
1283 n.4 (9th Cir. 2005) (“Federal courts of appeal[s] may not review state
courts’ interpretations of state law.”).
14426                    MUSLADIN v. LAMARQUE
obviously, but just as true, state courts understand that they
are free to act contrary to circuit court holdings on questions
of federal law.28 Lower courts must follow the law laid down
by higher courts. But we are not a higher court than the
Supreme Court of California or the California Court of
Appeal, or for that matter, California traffic courts. We are in
a different judicial hierarchy.

   Our panel’s error creates uncertainty and inconsistency for
the nine state court systems and nearly 20% of our nation’s
population within the Ninth Circuit. Must they follow our
decisions when they think our decisions are contrary to or
unreasonable applications of Supreme Court precedent? The
statute tells them one thing, we tell them another, and the
briefs they get will tell them both. Under the plain statutory
language, state courts are free to ignore our decisions. But
under the panel’s decision, they must follow them. We have
effectively turned ourselves into the supreme court of the nine
states in our circuit. I therefore dissent.



BEA, Circuit Judge, with whom Circuit Judges KOZINSKI,
O’SCANNLAIN, and KLEINFELD join, dissenting from the
denial of rehearing en banc:

   I join Judge Kleinfeld’s dissent from the denial of rehearing
en banc. I write separately to underscore that it was not an
“unreasonable application of clearly established federal law”
for the California Court of Appeal to deny habeas relief not-
withstanding its determination that the wearing of victims’
  28
    See Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11
(1997); see also Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993)
(Thomas, J., concurring) (“In our federal system, a state trial court’s inter-
pretation of federal law is no less authoritative than that of the federal
court of appeals in whose circuit the trial court is located.”); People v. Wil-
liams, 16 Cal.4th 153, 190 (1997) (recognizing that decisions of lower fed-
eral courts interpreting federal law are not binding on state courts).
                     MUSLADIN v. LAMARQUE                  14427
photographs in a courtroom constitutes an “impermissible fac-
tor coming into play.”

   The panel opinion suggests that, once the California Court
of Appeal “specifically found ‘the wearing of photographs of
victims in a courtroom to be an “impermissible factor coming
into play,” ’ ” Musladin’s conviction could not stand. See
Musladin v. LaMarque, ___ F.3d ___, ___ (9th Cir. 2005)
(panel’s emphasis). The rationale offered in support of this
conclusion is that, “[u]nder Williams and Flynn,” the finding
of an impermissible factor coming into play “in itself estab-
lishes ‘inherent prejudice’ and requires reversal.” Id.

   The panel opinion misconstrues Williams and Flynn. In
Williams, the Court established that putting a defendant on
trial in prison garb is constitutional error of the variety amena-
ble to harmless-error analysis. See Williams, 425 U.S. at 507-
09 (adopting the position of the Fifth Circuit that “the
harmless-error doctrine is applicable to this line of cases”);
Charles Alan Wright et al., Federal Practice and Procedure
§ 855, at 477 & n.8 (3d ed. 2004). When the Court in Flynn
“reaffirmed its holding in Williams,” see Musladin, ___ F.3d
at ___, it did not, of course, transform “courtroom arrange-
ments challenged as inherently prejudicial” into structural
errors, Flynn, 475 U.S. at 570. Rather, Flynn suggested that,
to obtain a conviction’s reversal, a defendant must show “ac-
tual prejudice” even after successfully demonstrating that the
challenged courtroom arrangement was “inherently prejudi-
cial.” See id. at 572 (“[I]f the challenged practice is not found
inherently prejudicial and if the defendant fails to show actual
prejudice, the inquiry is over.” (emphasis added)). Under
Flynn, in other words, it is possible to have a situation that is
“inherently prejudicial” but not “so inherently prejudicial as
to pose an unacceptable threat to [a] defendant’s right to a fair
trial.” Id. (emphasis added).

  Accordingly, it was a reasonable application of Supreme
Court precedent for the California Court of Appeal to deter-
14428               MUSLADIN v. LAMARQUE
mine that, although in its view the wearing of victims’ photo-
graphs in a courtroom is inherently prejudicial, the button-
wearing in this case did not actually deprive Musladin of his
right to a fair trial.
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