Larson v. Palmateer ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEWIS EDWARD LARSON, JR.,  No. 04-35465
Petitioner-Appellant,
v.  D.C. No.
CV-00-01507-JJ
JOAN PALMATEER,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding
Argued and Submitted
November 8, 2007—Portland, Oregon
Filed February 13, 2008
Before: Raymond C. Fisher and Marsha S. Berzon,
Circuit Judges, and Judith M. Barzilay, Judge.*
Opinion by Judge Fisher
*The Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
1339
LARSON v. PALMATEER 1343
COUNSEL
Lewis E. Larson, pro se; Nell I. Brown (argued), Assistant
Federal Public Defender, Portland, Oregon, for the petitioner-
appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor
General, Kaye E. McDonald (argued), Senior Assistant Attor-
ney General, Office of the Oregon Attorney General, Salem,
Oregon, for the respondent-appellee.
OPINION
FISHER, Circuit Judge:
Lewis Larson, Jr. appeals the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition. His claims on
habeas are that his Fifth Amendment due process rights were
violated when the trial court judge required him to wear a
security leg brace before the jury, denied his motion to
exclude witnesses from the courtroom, allowed the admission
of evidence relating to his past criminal history and exhibited
judicial bias. He also claims that his Sixth Amendment right
to counsel was violated when the trial court judge refused to
appoint him substitute counsel. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253, and we affirm.
BACKGROUND
Larson was convicted in Oregon state court in 1992 for two
counts of aggravated murder in the deaths of his father, Lewis
Larson, Sr., and his stepbrother, Darin Larson. Both victims
1344 LARSON v. PALMATEER
were last seen alive in January 1990. Bloody items from their
house were found in a nearby canyon several days after they
disappeared; their bodies, wrapped in plastic and a blanket,
were ultimately discovered 10 months later by a hunter. Both
victims appeared to have been killed by blunt force trauma to
the head. The state argued that Larson’s motive for the crime
was that he was angry at his father and stepbrother because
he believed they had turned him in to the police a month ear-
lier on account of a parole violation. The state presented evi-
dence that Larson had acted suspiciously in the days
following his relatives’ disappearance, including that he sold
some of the victims’ belongings and told the police several
variations on a story that his father and stepbrother had sud-
denly gone to Reno to collect an inheritance from a recently
deceased relative.
Larson represented himself, with the assistance of a court-
appointed legal advisor, throughout his six-day trial. After
deliberating less than three hours, the jury convicted Larson
on both counts and sentenced him to life in prison without the
possibility of parole. On direct appeal, both the Oregon Court
of Appeals and Oregon Supreme Court affirmed his convic-
tion. Although both courts held, under state law, that the trial
court had improperly denied Larson’s motion to exclude wit-
nesses from the courtroom, both courts also concluded that
this error was harmless. Larson filed a petition for post-
conviction relief before the Oregon courts in which he raised
numerous claims for relief under federal and state law, all of
which were denied. The Oregon Court of Appeals summarily
affirmed, and the Oregon Supreme Court denied review. Lar-
son then filed the instant federal petition for habeas corpus
under 28 U.S.C. § 2254, which the district court denied.
A district court’s denial of a habeas corpus petition is
reviewed de novo. Leavitt v. Arave, 383 F.3d 809, 815 (9th
Cir. 2004) (per curiam). Because Larson’s petition was filed
after April 24, 1996, the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) applies. See Lindh v. Murphy, 521
LARSON v. PALMATEER 1345
U.S. 320, 327 (1997). Under AEDPA, a federal court is per-
mitted to grant habeas relief only if the state court adjudica-
tion “resulted in a decision that was contrary to, or involved
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). To prevail, the petitioner
must demonstrate “that the state court’s application of
Supreme Court precedent to the facts of his case was not only
incorrect but ‘objectively unreasonable.’ ” Davis v. Woodford,
384 F.3d 628, 637-38 (9th Cir. 2004) (quoting Woodford v.
Visciotti, 537 U.S. 19, 25 (2002)). If the state court reaches
the merits without providing reasoning for us to review, how-
ever, “we independently review the record to determine
whether the state court clearly erred in its application of
Supreme Court law.” Brazzel v. Washington, 491 F.3d 976,
981 (9th Cir. 2007) (internal quotation marks omitted).
I.
Larson claims that his due process rights were violated
when the trial court compelled him to wear a security leg
brace in front of the jury during two of his six days of trial.
Although at a pretrial hearing the trial court described the
security brace as an “unobtrusive” device that would be worn
under Larson’s clothing, Larson contends that the device was
too bulky to fit under his pants leg and was thus worn over
his clothing. The trial record does not indicate how the brace
was worn, but on the beginning of the third day of trial, the
judge ordered the leg brace removed and made the following
comments to the jury:
Mr. Larson has been wearing a leg brace, and that
leg brace was strictly a security device. It’s a kind of
leg iron that they use to transport prisoners, basically
during airline flights, that sort of thing. A decision
has been made to take it off of him. He has a physi-
cal impairment, so that’s the reason for the absence
1346 LARSON v. PALMATEER
of the brace. You saw it, now you don’t see it. That’s
why.
There is no evidence in the record suggesting that Larson
asked the trial court to comment on the removal of the leg
brace, and the trial court judge did not give any limiting
instruction to the jury.
[1] Visible shackling of a criminal defendant during trial
“undermines the presumption of innocence and the related
fairness of the factfinding process” and “ ‘affront[s]’ the ‘dig-
nity and decorum of judicial proceedings that the judge is
seeking to uphold.’ ” Deck v. Missouri, 544 U.S. 622, 630-31
(2005) (alteration in original) (quoting Illinois v. Allen, 397
U.S. 337, 344 (1970)). The Supreme Court has therefore held
that “the Fifth and Fourteenth Amendments prohibit the use
of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trial.” Id. at
629. The Court described this principle as one that is “deeply
embedded in the law,” reflecting a consensus “dating back to
the 19th century.” Id. Visible restraints are therefore not per-
mitted unless the trial court finds that they are necessary while
“tak[ing] account of the circumstances of the particular case.”
Id. at 632.
[2] Although the state argues that the record does not prove
that Larson in fact wore the leg brace over his clothing, the
trial court’s comments to the jury upon the removal of the leg
brace — “You saw it; now you don’t see it” — strongly indi-
cate that the leg brace was visible to the members of the jury.
Because the record makes clear that Larson moved about the
courtroom during the period he was wearing the brace, it is
particularly likely that the jury was aware that he was wearing
the security device. Further, even if the state were correct that
Larson wore the device under his pants leg, the trial court’s
comments to the jury served to inform the jury that Larson
wore the leg brace, that it is “strictly a security device” and
LARSON v. PALMATEER 1347
that “it’s a kind of leg iron that they use to transport prison-
ers.” Regardless of how the brace was worn, therefore, the
judge’s comments ensured that it was undoubtedly “visible”
to the jury in a way that would affect Larson’s due process
rights.
[3] Even visible restraints, however, do not violate the
defendant’s due process rights if their use is “ ‘justified by an
essential state interest’ — such as the interest in courtroom
security — specific to the defendant on trial.” Deck, 544 U.S.
at 624 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69
(1986)). The record contains only one possible justification
for restraining Larson, in comments the trial court made dur-
ing a pre-trial hearing held nine months before trial. In
response to Larson’s complaints about being made to argue
his pre-trial motion in shackles, the judge remarked that the
shackles were necessary because the courtroom was “under-
staffed” and that there was “only one deputy, and of course,
he’s outside. That’s the reason for it.” The trial judge specifi-
cally noted, however, that “You’re certainly not going to be
shackled at any time a jury is around. . . . It’s just these hear-
ings that are being conducted prior to trial.” Because the trial
court judge specifically rejected the idea of shackling Larson
in front of the jury, it is difficult to construe his comments as
a finding that visible restraints during trial were necessary.
Further, there is no indication that these same security con-
straints — namely, that only one deputy was available —
were also in place during trial. Lastly, even if the courtroom
remained understaffed during trial, the trial court judge’s ref-
erence to a staff shortage fails to provide the individualized
determination of necessity required by the Supreme Court in
Deck. See 544 U.S. at 624.
[4] Although the district court acknowledged that the trial
judge made “no formalized finding” as to the necessity of
restraints, it nonetheless rejected Larson’s due process claim,
holding that the trial court was presented with security con-
cerns that necessitated the use of restraints. Specifically, the
1348 LARSON v. PALMATEER
district court suggested that the security leg brace may have
been justified because Larson had a proclivity for absconding,
called prisoners as witnesses and was on trial for a particu-
larly vicious retaliation murder against family members.
Although any of these reasons may have provided an ade-
quate basis for imposing security restraints, the Supreme
Court in Deck specifically rejected such post-hoc rationales.
See 544 U.S. at 634-35 (noting that one suggested justifica-
tion for shackling the defendant “founders on the record’s
failure to indicate that the trial judge saw the matter as one
calling for discretion,” because “[t]he record contains no for-
mal or informal findings”); see also Wilson v. McCarthy, 770
F.2d 1482, 1485 (9th Cir. 1985) (noting that trial court “held
a hearing and stated for the record his reasons” for requiring
shackling); United States v. Baker, 432 F.3d 1189, 1244 (11th
Cir. 2005) (“[I]f a judge intends to shackle a defendant, he
must make a case specific and individualized assessment of
each defendant in that particular trial.”); Lakin v. Stine, 431
F.3d 959, 965 (6th Cir. 2005) (noting that Deck requires an
“individualized determination” and that the trial court must
make “reasoned findings on the record”). Although the
Supreme Court left open the possibility that there may be an
“exceptional case where the record itself makes clear that
there are indisputably good reasons for shackling,” this is not
such a case. See Deck, 544 U.S. at 635. We therefore agree
with Larson that his due process rights were violated when the
trial court failed to make a finding on the record justifying the
necessity of physical restraints, and that the absence of such
a finding cannot be cured by the reviewing court’s after-the-
fact justifications.
Even if the trial court’s imposition of physical restraints
violated Larson’s right to due process, however, we must
nonetheless assess whether this error “had substantial and
injurious effect or influence in determining the jury’s ver-
dict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (inter-
nal quotation marks omitted); Rhoden v. Rowland, 172 F.3d
633, 637 (9th Cir. 1999); see also Fry v. Pliler, 127 S. Ct.
LARSON v. PALMATEER 1349
2321, 2328 (2007) (holding that Brecht harmless error review
applies whether or not the state court recognized the error and
reviewed it for harmlessness). Review for harmless error
under Brecht is “more forgiving” to state court errors than the
harmless error standard the Supreme Court applies on its
direct review of state court convictions. See Fry, 127 S. Ct. at
2325 (contrasting Brecht with Chapman’s “harmless beyond
a reasonable doubt” standard). Even under Brecht, however,
“in cases of grave doubt as to harmlessness the petitioner
must win.” O’Neal v. McAninch, 513 U.S. 432, 437 (1995).
[5] To determine whether the imposition of physical
restraints constitutes prejudicial error, we have considered the
appearance and visibility of the restraining device, the nature
of the crime with which the defendant was charged and the
strength of the state’s evidence against the defendant. See
Dyas v. Poole, 317 F.3d 934, 937 (9th Cir. 2003) (per
curiam). “[T]he greater the intensity of shackling . . . the
greater the extent of prejudice,” because elaborate physical
restraints are more likely to create the appearance of the
defendant’s dangerousness. See Spain v. Rushen, 883 F.2d
712, 722 (9th Cir. 1989). Hence, physical restraints such as a
waist chain, leg irons or handcuffs may create a more prejudi-
cial appearance than more unobtrusive forms of restraint. See
id. Similarly, if the defendant is charged with a violent crime,
then the risk of prejudice increases, because shackling “essen-
tially brand[s] [him] as having a violent nature.” Rhoden, 172
F.3d at 637. Concerns about prejudice may be mitigated, how-
ever, if the state’s evidence against the defendant was “over-
whelming.” See Dyas, 317 F.3d at 937.
[6] Larson was compelled to wear a security leg brace for
two of his six days of trial. The record contains no indication,
and Larson does not suggest, that the brace prevented him
from moving about the courtroom as he presented his case pro
se. Although the trial court’s characterization of the leg brace
as “a kind of leg iron” might have been better phrased,
undoubtedly a security leg brace is not as visually obtrusive
1350 LARSON v. PALMATEER
or prejudicial a restraining device as handcuffs, leg irons,
waist chains or gags. See Spain, 883 F.2d at 722. Further, that
Larson was allowed to move about the courtroom unencum-
bered for four of his six days of trial mitigated the prejudicial
impact of the trial court’s decision to use the leg brace. The
jury would likely have interpreted the judge’s decision to
remove the leg brace — and Larson’s subsequent good behav-
ior — as evidence that Larson was not a dangerous individual
in need of constant restraint, particularly when Larson was
actively in front of the judge and jury while performing as his
own lawyer.
[7] Although we are troubled by the trial court’s imposition
of a visible security restraint without making a finding of
necessity on the record, we conclude that Larson has not
shown that wearing the leg brace for the first two days of his
six-day trial had a “substantial and injurious effect or influ-
ence in determining the jury’s verdict.” See Brecht, 507 U.S.
at 623. Therefore, we affirm the district court.
II.
Larson further argues that the trial court violated his right
to due process when it denied his motion to exclude the
state’s witnesses during trial. The purpose of witness exclu-
sion is “to prevent witnesses from ‘tailoring’ their testimony
to that of earlier witnesses and to aid in detecting testimony
that is less than candid.” United States v. Ell, 718 F.2d 291,
293 (9th Cir. 1983). Larson moved to have the state’s wit-
nesses excluded from the trial after the prosecutor had begun
to present the state’s case-in-chief; the trial court denied the
motion as untimely. On direct appeal, the Oregon Supreme
Court held that the trial judge had ruled improperly as a mat-
ter of state law, but determined that Larson had not shown
prejudice:
The record does not contain any indication that we
can find (and defendant does not suggest) that any
LARSON v. PALMATEER 1351
witness tailored testimony to conform with that of
any earlier witness or even communicated with any
earlier witness about questions by trial counsel,
about trial testimony, or about the facts of the case.
Indeed, because of the nature of the proof, even the
possibility of such tailoring was very remote.
State v. Larson, 933 P.2d 958, 965 (Or. 1997).
[8] The correctness of the trial court’s evidentiary ruling as
a matter of state law is irrelevant to our review, because a fed-
eral court may entertain an application for a writ of habeas
corpus “only on the ground that [the petitioner] is in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). The only question before
us, therefore, is whether the trial court’s failure to exclude the
state’s witnesses from the courtroom “rendered the trial so
fundamentally unfair as to violate due process.” See Windham
v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998).
[9] Neither this court nor the Supreme Court has ever held
that the failure to exclude witnesses can violate due process.
Under common law, the decision to exclude witnesses was
left to the discretion of the trial court. See Holder v. United
States, 150 U.S. 91, 92 (1893) (noting that the trial court had
discretion to exclude the testimony of a witness who had not
obeyed an exclusion order). Although the Federal Rules of
Evidence now require a federal district court to exclude wit-
nesses upon the motion of a party, there is no indication that
this rule has a constitutional basis. See Fed. R. Evid. 615; see
also 29 Wright & Miller, Federal Practice & Procedure
§ 6241 (“Rule 615 departs from the common law in that,
when a party requests exclusion of witnesses, such an order
is mandatory rather than a matter of discretion.”). We need
not decide, however, whether a state trial court’s failure to
exclude witnesses may ever render a trial fundamentally
unfair, because there is no evidence that the trial judge’s
refusal to sequester witnesses adversely affected Larson’s
1352 LARSON v. PALMATEER
trial. As the Oregon Supreme Court concluded, the record
does not suggest that the state’s witnesses tailored their testi-
mony to corroborate the testimony of other witnesses. See
Larson, 933 P.2d at 965. Moreover, the vast majority of the
state’s 42 witnesses testified about discrete events that pre-
sented little risk of tailoring. Accordingly, Larson’s witness
exclusion claim fails.
III.
Larson next argues that his due process rights were violated
when the trial court allowed the state to present evidence that
Larson had committed prior crimes.1 The state’s theory of
Larson’s motive for the crimes was that Larson was angry at
his father and stepbrother because he believed that they had
turned him in to the police on account of a parole violation.
Accordingly, the prosecutor referred to Larson’s status as a
parolee during opening argument and called numerous wit-
nesses who testified to aspects of Larson’s criminal past. Lar-
son moved for a mistrial on the third day of trial on the basis
of these references to his criminal history, but the trial court
denied his motion.
[10] Our review of evidentiary rulings is confined to “de-
termining whether the admission of evidence rendered the
trial so fundamentally unfair as to violate due process.” Wind-
ham, 163 F.3d at 1103. The Supreme Court has expressly
reserved the question of whether using evidence of the defen-
1
The state argues that Larson procedurally defaulted this claim by fail-
ing to move for a mistrial on a timely basis. The state court, however,
affirmed Larson’s conviction on the merits instead of relying on the proce-
dural bar. If an issue is presented to the state courts, procedural default
will not preclude federal review unless the state court invokes a procedural
bar as an independent basis for its disposition of the case. See Harris v.
Reed, 489 U.S. 255, 261-62 (1989). To the extent the state also argues that
this claim was not exhausted, we may deny a claim on the merits notwith-
standing the petitioner’s failure to exhaust the remedies available in state
court. See 28 U.S.C. § 2254(b)(2).
LARSON v. PALMATEER 1353
dant’s past crimes to show that he has a propensity for crimi-
nal activity could ever violate due process. See Estelle v.
McGuire, 502 U.S. 62, 75 n.5 (1991). Because the Court has
“expressly left this issue an ‘open question,’ ” the state court
did not unreasonably apply clearly established federal law in
determining that the admission of evidence of Larson’s crimi-
nal history did not violate due process. See Alberni v. McDan-
iel, 458 F.3d 860, 866 (9th Cir. 2006); see also 28 U.S.C.
§ 2254(d)(1).
IV.
Larson claims that his Sixth Amendment right to counsel
was violated when the trial court refused to relieve Larson’s
third set of counsel, thereby prompting Larson to represent
himself. Larson had asked the trial court to relieve his first
counsel because he believed counsel was unprepared. He then
asked the court to relieve his second counsel, arguing that his
second counsel was unwilling to work diligently on his
behalf. Although the trial court judge believed that Larson’s
second counsel was representing him in “excellent fashion,”
he agreed to appoint Larson a third set of substitute counsel
because Larson’s working relationship with his second coun-
sel had broken down. At the time the judge granted this
motion, however, he warned Larson that “this would probably
be the end of the road” as far as further requests for new
counsel were concerned. Nonetheless, Larson requested a
fourth set of counsel nine months later, on the eve of trial.
After hearing Larson’s complaints, the trial court denied Lar-
son’s motion and Larson opted to represent himself with his
third counsel as stand-by.
[11] The Sixth Amendment does not guarantee a “meaning-
ful relationship” between an accused and his counsel. Morris
v. Slappy, 461 U.S. 1, 13-14 (1983); see Plumlee v. Masto,
No. 04-15101, slip op. at 650-51 (9th Cir. Jan. 17, 2008) (en
banc). Larson did not argue that his third set of counsel had
either an actual or apparent conflict of interest. Instead, he
1354 LARSON v. PALMATEER
complained solely about his counsel’s strategic decisions and
lack of communication with him, including that his counsel
did not make motions that he requested, contacted witnesses
without his consent and did not present him the list of defense
witnesses for his approval. However, no Supreme Court case
has held that “the Sixth Amendment is violated when a defen-
dant is represented by a lawyer free of actual conflicts of
interest, but with whom the defendant refuses to cooperate
because of dislike or distrust.” Plumlee, slip op. at 661.
Because Larson has not shown that he was entitled to a fourth
set of counsel under clearly established federal law, his Sixth
Amendment claim fails.
V.
Lastly, Larson claims that his due process right to a fair
trial was violated because the trial court judge was biased.
Larson argues that the trial court judge exhibited bias by rul-
ing against a number of his motions and at times expressing
impatience with Larson as he proceeded pro se. The Oregon
state court denied this claim in Larson’s petition for collateral
review, finding that Larson had not presented any evidence
that the judge “made any gestures or facial expressions that
would exhibit a bias against [him].” The Oregon court held
that the trial court therefore did not violate his due process
rights.
[12] The Supreme Court has long established that the Due
Process Clause guarantees a criminal defendant the right to a
fair and impartial judge. See In re Murchison, 349 U.S. 133,
136 (1955). To succeed on a judicial bias claim, however, the
petitioner must “overcome a presumption of honesty and
integrity in those serving as adjudicators.” Withrow v. Larkin,
421 U.S. 35, 47 (1975). In the absence of any evidence of
some extrajudicial source of bias or partiality, neither adverse
rulings nor impatient remarks are generally sufficient to over-
come the presumption of judicial integrity, even if those
remarks are “critical or disapproving of, or even hostile to,
LARSON v. PALMATEER 1355
counsel, the parties, or their cases.” Liteky v. United States,
510 U.S. 540, 555 (1994); see United States v. Martin, 278
F.3d 988, 1005 (9th Cir. 2002). Because Larson has provided
no evidence of the trial court’s alleged bias outside of these
rulings and remarks — which themselves revealed little more
than the occasional mild frustration with Larson’s pro se law-
yering skills — his claim that he was denied a fair trial also
fails.
AFFIRMED.