                             In the
    United States Court of Appeals
                 For the Seventh Circuit
                           ____________

No. 04-1276
JOSEPH L. VAN PATTEN,
                                           Petitioner-Appellant,
                                 v.

JEFFREY P. ENDICOTT,1
                                          Respondent-Appellee.
                           ____________
            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
          No. 98 C 1014—Rudolph T. Randa, Chief Judge.
                           ____________
      SUBMITTED MARCH 26, 2007—DECIDED JUNE 5, 2007
                PUBLISHED JUNE 29, 2007 2
                      ____________


    Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
  PER CURIAM. 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


1
    Jeffrey P. Endicott is now the correct defendant in this case.
2
  This decision was originally released as an unpublished order.
By the court’s own motion, it is being reissued as a published
opinion.
2                                              No. 04-1276

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 pro-
ceeding—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).
  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 Su-
preme 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
No. 04-1276                                            3

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 deter-
mine 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
   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).
4                                              No. 04-1276

  Lower courts ruling after Musladin have heeded this
directive and have denied habeas corpus relief in situa-
tions 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 Su-
preme 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 erron-
eous decision to allow Van Patten v. Deppisch to stand
as written.
No. 04-1276                                         5

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—6-29-07
