                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JAN 30 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PHILLIP L. WRIGHT,                              No. 17-55388

                Petitioner - Appellant,         D.C. No. 2:13-cv-09571-DMG-AFM

 v.
                                                MEMORANDUM*
CONNIE GIBSON,

                Respondent - Appellee.

                    Appeal from the United States District Court
                 for the Central District of California, Los Angeles
                       Dolly M. Gee, District Judge, Presiding

                      Argued and Submitted January 8, 2020
                              Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District
Judge.

      In Wainwright v. Greenfield, 474 U.S. 284, 292, 295 (1986), the United

States Supreme Court held that it is a due process violation for a prosecutor to use

a defendant’s post-Miranda silence to overcome a plea of insanity. Yet, in the

instant case, the prosecutor repeatedly violated Wainwright in the sanity phase of

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
the state court criminal trial of petitioner Phillip L. Wright, going so far as to argue

to the jury on summation that Wright’s invocation at the time of his arrest of his

constitutional rights to silence and to counsel was “in and of itself” sufficient to

reject his plea of insanity. Based on these Wainwright violations, Wright sought

habeas relief from the California Court of Appeal, which nevertheless denied his

petition, finding in effect that any error was harmless. After the California

Supreme Court summarily denied his subsequent petition for review, Wright filed

the instant federal habeas petition to the district court below, which, adopting the

magistrate judge’s report and recommendation, denied the petition with prejudice.

The district court subsequently granted Wright’s request for a certificate of

appealability as to his Wainwright claim only, and this appeal followed. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253.

      “We review de novo the district court’s denial of [Wright’s] habeas petition,

and we review the district court’s findings of fact for clear error.” Hurles v. Ryan,

752 F.3d 768, 777 (9th Cir. 2014). Substantively, the applicable legal standards are

supplied by Brecht v. Abrahamson, 507 U.S. 619 (1993) and 28 U.S.C. § 2254(d).

While there may be uncertainty as to which might best apply,1 we need not reach


1
  “[A] prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if
the state court adjudicated his claim on the merits, the Brecht test subsumes the
limitations imposed by [§ 2254(d)].” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).
Accordingly, this Court “need not formally apply” the § 2254(d) test in addition to
the Brecht test, but does so here as § 2254(d) “sets forth a precondition to the grant

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that question because we find that, under either standard, Wright has more than

carried his burden.

      Under Brecht, we find that the Wainwright errors during the sanity phase of

trial “had substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht, 507 U.S. at 623 (internal citation omitted). We consider the

following three factors in carrying out the Brecht inquiry in the present context:

“(1) the extent of the comments, (2) whether an inference of [sanity] from silence

was stressed to the jury, and (3) the extent of other evidence suggesting the

defendant’s [sanity].” Hurd v. Terhune, 619 F.3d 1080, 1090 (9th Cir. 2010)

(internal citation and alterations omitted); see also Brecht, 507 U.S. at 639. The

first two factors very strongly favor granting the petition, because the prosecution’s

case for sanity relied extensively on Wright’s invocation, referencing it on ten

separate occasions during opening, examinations, and closing. Although the

prosecution also used other evidence to suggest Wright’s sanity, they placed

special emphasis on his invocation of his constitutional rights. For example, as

noted, the prosecutor stressed to the jury during summation that Wright’s

invocation “in and of itself, shows he knew the nature and consequences of what

he was doing and he knew that what he had did [sic] was wrong.” As to the third

factor, when it came to evidence of what was Wright’s state of mind at the time of

of habeas relief.” Id. at 2198 (internal citation and alterations omitted); see also
Garcia v. Long, 808 F.3d 771, 782 (9th Cir. 2015).

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the commission of the crime—which is the ultimate issue—almost none of the

other evidence of Wright’s alleged sanity approached in temporal immediacy as

the evidence of his invocation of his rights.

      Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act of 1996, we find that the California Court of Appeal2

unreasonably applied clearly established federal law as determined by the U.S.

Supreme Court and unreasonably determined facts in light of the evidence

presented at trial. Indeed, the state court appears to have labored under a material

misimpression of what established federal law is in this area, stating at one point

that the “prosecution could lawfully impeach and rebut [defense expert] by

presenting evidence establishing a different explanation for appellant’s lack of

communication”—a position totally inconsistent with Wainwright. Here, “there is

no possibility fairminded jurists could disagree that the state court’s decision

conflicts with [the U.S. Supreme Court’s] precedents.” Harrington v. Richter, 562

U.S. 86, 102 (2011).

      Furthermore, the state court made a grossly unreasonable determination of

material facts when, ignoring the clear record, it refused to acknowledge that the

prosecutor directly told the jury during summation that Wright’s invocation “in and

2
 The California Court of Appeal’s opinion which denied Wright’s claim on the
merits—rather than the California Supreme Court’s summary denial of the petition
for review—is the relevant state adjudication for purposes of § 2254 review. See
Berghuis v. Thompkins, 560 U.S. 370, 378–80 (2010).

                                          4
of itself” was evidence of his sanity. Compounding its error, the California court

pointed instead to statements the prosecutor had made in his opening and, on that

basis, wrongly accused the defense of misstating the record. Moreover, as

discussed above, little of the State’s other evidence was probative of Wright’s state

of mind at the time of the offense. The state court’s complete failure to appreciate

how Wright’s invocation of his constitutional rights was emphasized to the jury on

summation as sufficient proof of his sanity—a flat violation of Wainwright—and

the lack of other evidence on which the jury’s sanity finding could be based serve

to illustrate that the state court’s “harmless error determination was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Sifuentes v. Brazelton,

825 F.3d 506, 535 (9th Cir. 2016) (internal quotations and citation omitted).

      As for the report by the magistrate judge adopted by the district court, the

magistrate judge clearly erred in recommending affirming the state court’s factual

determination in this respect (among others). The magistrate judge reframed this

issue, in a puzzling manner, as whether the “in and of itself” statement was the

prosecution’s direct argument or attribution to Dr. David Fennell’s opinion. This

distinction is completely irrelevant because, under either scenario, it still is the case

that the prosecutor was highlighting to the jury that Wright’s invocation in and of

itself suggested his sanity.


                                           5
      Because of these errors, the magistrate judge and the district court did not

reach the one issue that remains—whether the failure of defense counsel to object

at trial to the prosecutor’s repeated Wainwright violations constitutes a procedural

bar to his habeas petition or whether it is excused because of inadequacy of

counsel.3 Accordingly, while we reverse the district court’s denial of the petition

with respect to the Wainwright claim on the merits, we remand the case to the

district court for determination of the undecided procedural bar issue.

      REVERSED AND REMANDED.




3
  In contrast, the California Court of Appeal made its ruling based on both the
procedural bar—finding that Wright “did not object to the prosecutor’s remarks or
questions and is precluded from claiming Doyle/Wainwright error on appeal”—and
the merits.

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