Musladin v. Lamarque ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATHEW MUSLADIN,  No. 03-16653
Petitioner-Appellant,
v.  D.C. No.
CV-00-01998-JL
ANTHONY LAMARQUE,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
James Larson, Magistrate Judge, Presiding
Argued and Submitted
January 24, 2008—Pasadena, California
Filed February 12, 2009
Before: Stephen Reinhardt, David R. Thompson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
1685
1688 MUSLADIN v. LAMARQUE
COUNSEL
Sanford Svetcov, Lerach Coughlin Stoia Geller Rudman &
Robbins LLP, San Francisco, California, for the petitioner-
appellant.
Gregory A. Ott and Peggy S. Ruffra, Deputy Attorneys Gen-
eral, Gerald A. Engler and Dane R. Gillette, San Francisco,
California, Assistant Attorneys General, and Edmund G.
Brown Jr., Attorney General of the State of California, for the
respondent-appellee.
MUSLADIN v. LAMARQUE 1689
OPINION
BERZON, Circuit Judge:
Mathew Guy Musladin appeals the district court’s denial of
his petition for a writ of habeas corpus. In a prior decision, we
reversed the district court on the ground that buttons depicting
the victim worn by spectators at Musladin’s trial impermiss-
ibly conveyed to jurors the message that Musladin was guilty,
and we declined to address Musladin’s other claims. Musladin
v. Lamarque, 427 F.3d 653 (9th Cir. 2005). Our decision was
reversed by the Supreme Court. Carey v. Musladin, 549 U.S.
70 (2006). We consider the remaining issues in this appeal.
BACKGROUND
Our previous decision explained the factual background of
Musladin’s case:
Musladin was charged in a California state court
with first degree murder for the killing of Tom
Studer, the fiance of his estranged wife Pamela. On
May 13, 1994, Musladin came to the house where
Pamela, Studer, and Pamela’s brother Michael
Albaugh lived in order to pick up his son for a
scheduled weekend visit. Pamela testified that she
and Musladin had an argument, and that Musladin
pushed her to the ground. According to Pamela,
when Studer and Albaugh came out of the house to
assist her, Musladin reached into his car to grab a
gun and fired two shots at Studer, killing him. Mus-
ladin contends, however, that after Pamela fell to the
ground, Studer and Albaugh appeared, holding a gun
and a machete respectively, and threatened him.
Musladin asserted that, after seeing the weapons, he
shot in the general direction of Studer out of fear for
his own life. Accordingly, at trial Musladin argued
perfect and imperfect self-defense. There is no dis-
1690 MUSLADIN v. LAMARQUE
pute that Musladin fired the shot that killed Studer,
although experts for both sides agree that the fatal
shot was the result of a ricochet rather than a direct
hit.
427 F.3d at 654-55.
The California courts rejected Musladin’s direct appeal and
petition for post-conviction relief.
Musladin challenges the trial court’s failure to consult with
defense counsel before responding to a jury note; his attor-
ney’s failure to request a limiting instruction and to investi-
gate a threatening statement by Studer; and the trial court’s
exclusion of certain evidence. We recite the relevant facts
with our discussion of each specific claim below.
STANDARD OF REVIEW
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), Musladin can prevail on a claim “that was adju-
dicated on the merits in State court” only if he can show that
the adjudication:
(1) 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; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision will be “contrary
to” federal law if it “applies a rule that contradicts the govern-
ing law set forth in [Supreme Court] cases” or “confronts a set
of facts that are materially indistinguishable from” a Supreme
Court case yet reaches a different result. Williams v. Taylor,
MUSLADIN v. LAMARQUE 1691
529 U.S. 362, 405-06 (2000). It will involve an “unreasonable
application of” federal law only if it is “objectively unreason-
able.” Id. at 409.
On habeas review, we assess the prejudicial impact of most
constitutional errors by asking whether they “had substantial
and injurious effect or influence in determining the jury’s ver-
dict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quot-
ing Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see
also Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007) (Brecht stan-
dard applies whether or not the state court recognized the
error and reviewed it for harmlessness). As we discuss further
below, however, some constitutional errors do not require that
the petitioner demonstrate prejudice. See Arizona v. Fulmi-
nante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466
U.S. 648, 659 (1984). Furthermore, where a habeas petition
governed by AEDPA alleges ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984), we
apply Strickland’s prejudice standard and do not engage in a
separate analysis applying the Brecht standard. Avila v.
Galaza, 297 F.3d 911, 918 n.7 (2002).
We review the last reasoned state court opinion. See Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991). Where the state court
decided an issue on the merits but provided no reasoned deci-
sion, we conduct “an independent review of the record . . . to
determine whether the state court [was objectively unreason-
able] in its application of controlling federal law.” Delgado v.
Lewis, 223 F.3d 976, 982 (9th Cir. 2000). “[A]lthough we
independently review the record, we still defer to the state
court’s ultimate decision.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002).
We review the district court’s denial of Musladin’s petition
for a writ of habeas corpus de novo. Clark v. Murphy, 331
F.3d 1062, 1067 (9th Cir. 2003).
1692 MUSLADIN v. LAMARQUE
ANALYSIS
I.
Musladin argues that the trial court’s failure to consult with
defense counsel before responding to a mid-deliberations jury
note deprived him of his Sixth Amendment right to counsel.
A.
On the second day of jury deliberations, the jury sent the
following note to the trial court:1
We need amplification of the following:
1) The definition of Murder of the first degree con-
tains the phrase “express malice” — Whereas the
def’n of murder of the second degree, “express” mal-
ice is omitted.
(a) Does this exclude “implied” malice?
The trial court notified counsel, and Musladin’s attorney said
that he would “drop everything and be right over,” which he
did, arriving ten to fifteen minutes after he was summoned.
Before defense counsel arrived, however, the trial court
returned the note to the jury with the written direction:
“REFER TO THE INSTRUCTIONS.”2 Less than an hour
later, the jury returned its verdict of guilty on all charges.
Because the state courts denied this claim on the merits but
without a reasoned decision,3 “we independently review the
1
The crossed-out portion appears as it did in the jury’s note.
2
Musladin agrees that the original jury instructions correctly state that
under California law, express malice is required for a verdict of first-
degree murder.
3
On Musladin’s direct appeal, the California court of appeal ruled that
he had waived this claim. On his state habeas appeal, however, the Cali-
MUSLADIN v. LAMARQUE 1693
record, [but] still defer to the state court’s ultimate decision.”
Pirtle, 313 F.3d at 1167.
B.
1.
[1] In United States v. Cronic, 466 U.S. 648 (1984), the
Supreme Court reiterated the importance of counsel for crimi-
nal defendants: “Lawyers in criminal cases ‘are necessities,
not luxuries.’ Their presence is essential because they are the
means through which the other rights of the person on trial are
secured.” Id. at 653 (footnote omitted) (quoting Gideon v.
Wainwright, 372 U.S. 335, 344 (1963)). The right to effective
assistance of counsel, in other words, “is recognized not for
its own sake, but because of the effect it has on the ability of
the accused to receive a fair trial.” Id. at 658. Consequently,
“[a]bsent some effect of challenged conduct on the reliability
of the trial process, the Sixth Amendment guarantee is gener-
ally not implicated.” Id. Nonetheless, there are some circum-
stances “that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjusti-
fied.” Id. (footnote omitted). Cronic held that courts are “re-
quire[d] . . . to conclude that a trial is unfair if the accused is
denied counsel at a critical stage of his trial.” Id. at 659 (foot-
note omitted).4 There is no question here that Musladin was
fornia Supreme Court ordered the state to respond to the claim and then
denied the petition without opinion, effectively ruling on the merits. See
In re Robbins, 18 Cal. 4th 770, 814 (1998). The district court held that the
federal habeas claim was not procedurally barred, and the state does not
challenge this finding on appeal.
4
For this proposition, Cronic cited, inter alia, cases involving the com-
plete deprivation of counsel during a mid-trial overnight recess, Geders v.
United States, 425 U.S. 80 (1976), during closing argument, Herring v.
New York, 422 U.S. 853 (1975), and at preliminary hearings, Hamilton v.
Alabama, 368 U.S. 52 (1961); White v. Maryland, 373 U.S. 59 (1963) (per
curiam). 466 U.S. at 659 n.25.
1694 MUSLADIN v. LAMARQUE
denied counsel during the formulation and delivery of the
response to the jury note. The parties disagree about whether
this was a “critical stage of his trial” and, if so, whether the
deprivation of counsel during this time warrants automatic
reversal.
2.
[2] Cronic states that the complete deprivation of counsel
at a critical stage requires reversal, without inquiry into preju-
dice: “There are . . . circumstances that are so likely to preju-
dice the accused that the cost of litigating their effect in a
particular case is unjustified. . . . The presumption that coun-
sel’s assistance is essential requires us to conclude that a trial
is unfair if the accused is denied counsel at a critical stage of
his trial.” Cronic, 466 U.S. at 658-59 (emphasis added). Rely-
ing on Cronic, the Sixth Circuit has recently held that the
deprivation of counsel during jury reinstruction is automati-
cally reversible error. Caver v. Straub, 349 F.3d 340, 350 (6th
Cir. 2003) (“[U]nder Cronic, . . . if Petitioner’s trial counsel
was, indeed, absent during the re-instruction, a structural error
occurred in the trial court proceeding . . . . Any conclusion
otherwise would be an unreasonable application of clearly
established federal law as stated in Cronic.”).
The state argues, however, that the Supreme Court has
backed away from the bright-line Cronic position regarding
automatic prejudice. It points out that, in Satterwhite v. Texas,
486 U.S. 249 (1988), the Court considered a habeas petition-
er’s argument that depriving a capital defendant of the oppor-
tunity to consult with counsel before participating in a
psychiatric examination designed to determine his future dan-
gerousness — a Sixth Amendment violation established in
Estelle v. Smith, 451 U.S. 454 (1981) — required automatic
reversal:
Satterwhite urges us to adopt an automatic rule of
reversal for violations of the Sixth Amendment right
MUSLADIN v. LAMARQUE 1695
recognized in Estelle v. Smith. He relies heavily
upon the statement in Holloway [v. Arkansas, 435
U.S. 475 (1978),] that “when a defendant is deprived
of the presence and assistance of his attorney, either
throughout the prosecution or during a critical stage
in, at least, the prosecution of a capital offense,
reversal is automatic. Gideon v. Wainwright, 372
U.S. 335 (1963); Hamilton v. Alabama, 368 U.S. 52
(1961); White v. Maryland, 373 U.S. 59 (1963).” 435
U.S. at 489. His reliance is misplaced, however, for
Holloway, Gideon, Hamilton, and White were all
cases in which the deprivation of the right to counsel
affected — and contaminated — the entire criminal
proceeding.
Satterwhite, 486 U.S. at 257. Satterwhite did not mention
Cronic, but parenthetically described White and Hamilton —
cases cited in Cronic as examples of deprivation of counsel at
a critical stage — as involving the “absence of counsel from
arraignment proceeding that affected entire trial because
defenses not asserted were irretrievably lost.” Id. at 256; see
also Penson v. Ohio, 488 U.S. 75, 88-89 (1988) (finding com-
plete deprivation of counsel on appeal to be structural error,
relying on both Cronic and Satterwhite). Thus, the state
argues, Satterwhite’s focus was on the effect of the absence
of counsel on the proceeding as a whole.
A few years later, in Arizona v. Fulminante, the Supreme
Court conducted an overall survey, not limited to deprivation
of counsel situations, of the kinds of cases in which prejudice
is presumed. The common thread, it found, was that the error
was a “structural defect affecting the framework within which
the trial proceeds,” resulting in “ ‘a criminal trial [that] cannot
reliably serve its function as a vehicle for determination of
guilt or innocence.’ ” 499 U.S. at 310 (quoting Rose v. Clark,
478 U.S. 570, 577-78 (1986)). According to the state, Satter-
white and Fulminante indicate that a new test, focusing on the
pervasiveness of the error, has been substituted for Cronic’s
1696 MUSLADIN v. LAMARQUE
bright-line rule that deprivation of counsel at a critical stage
is automatically reversible error.5
[3] We cannot agree. Cronic specifically holds that auto-
matic reversal is required where a defendant is denied counsel
at a “critical stage,” and we cannot depart from that holding.
The state’s argument that we need no longer follow Cronic
because of Satterwhite and Fulminante is simply wrong. The
Supreme Court has made clear that the circuit courts must fol-
low Supreme Court precedent until the Supreme Court itself
declares it no longer binding. This is true even if the Court’s
subsequent decisions cast strong doubt on the continuing
strength of the precedent. “ ‘If a precedent of [the Supreme]
Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leav-
ing to [the Supreme] Court the prerogative of overruling its
own decisions.’ ” Agostini v. Felton, 521 U.S. 203, 237
(1997) (quoting Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989)). Agostini is applica-
ble here: Because Cronic is directly on point, we are required
to continue to apply Cronic’s rule of automatic reversal in
cases involving absence of counsel at a critical stage.
Moreover, the Supreme Court has repeatedly cited Cronic’s
holding approvingly. Less than a year ago the Supreme Court
described Cronic without indicating any adjustment to its
essential holding:
5
The First Circuit appears to have so concluded, holding that, despite
Cronic, a trial court’s supplemental instruction without consulting counsel
did not warrant automatic reversal: “The Supreme Court recently has
emphasized how seldom circumstances arise that justify a court in presum-
ing prejudice (and, concomitantly, in forgoing particularized inquiry into
whether a denial of counsel undermined the reliability of a judgment).
. . . The only Sixth Amendment violations that fit within this narrowly cir-
cumscribed class are those that are pervasive in nature, permeating the
entire proceeding.” Ellis v. United States, 313 F.3d 636, 643 (1st Cir.
2002) (finding counsel’s absence during jury reinstruction was “momen-
tary lapse” not warranting a presumption of prejudice).
MUSLADIN v. LAMARQUE 1697
Cronic held that a Sixth Amendment violation may
be found “without inquiring into counsel’s actual
performance or requiring the defendant to show the
effect it had on the trial,” Bell v. Cone, 535 U.S. 685,
695 (2002), when “circumstances [exist] that are so
likely to prejudice the accused that the cost of litigat-
ing their effect in a particular case is unjustified,”
Cronic, supra, at 658. Cronic, not Strickland, applies
“when . . . the likelihood that any lawyer, even a
fully competent one, could provide effective assis-
tance is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct
of the trial,” 466 U.S., at 659-660, and one circum-
stance warranting the presumption is the “complete
denial of counsel,” that is, when “counsel [is] either
totally absent, or prevented from assisting the
accused during a critical stage of the proceeding,”
id., at 659, and n.25.
Wright v. Van Patten, 128 S. Ct. 743, 746 (2008) (per curiam)
(footnote omitted, alterations in original). Similar affirmations
of Cronic’s “critical stage” rule are found in numerous other
Supreme Court cases issued after Fulminante and Satterwhite.
See Bell, 535 U.S. at 695 (“In Cronic . . . . we identified three
situations implicating the right to counsel that involved cir-
cumstances ‘so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.’ First,
and ‘[m]ost obvious’ was the ‘complete denial of counsel.’ A
trial would be presumptively unfair, we said, where the
accused is denied the presence of counsel at ‘a critical stage’
. . . .” (quoting Cronic, 466 U.S. at 658-59)); Mickens v. Tay-
lor, 535 U.S. 162, 166 (2002) (“We have spared the defendant
the need of showing probable effect upon the outcome, and
have simply presumed such effect, where assistance of coun-
sel has been denied entirely or during a critical stage of the
proceeding. When that has occurred, the likelihood that the
verdict is unreliable is so high that a case-by-case inquiry is
unnecessary.”); Roe v. Flores-Ortega, 528 U.S. 470, 483
1698 MUSLADIN v. LAMARQUE
(2000) (“In Cronic, Penson, and Robbins, we held that the
complete denial of counsel during a critical stage of a judicial
proceeding mandates a presumption of prejudice . . . .”).
[4] Because Cronic is directly on point and has not been
overruled by the Supreme Court, its rule requiring automatic
reversal where a defendant was denied counsel at a “critical
stage” is binding on this court. Moreover, it remains “ clearly
established Federal law, as determined by the Supreme Court
of the United States,” and thus applies in proceedings gov-
erned by AEDPA.6 28 U.S.C. § 2254(d)(1).
3.
We next consider whether the mid-deliberations communi-
cation with the jury here constituted a critical stage of Mus-
ladin’s trial. The Supreme Court has not provided a definitive
list of Cronic “critical stages.” However, AEDPA’s “clearly
established Federal law” requirement does not demand more
than a “principle” or “general standard” in the Supreme
Court’s caselaw before habeas relief can be granted:
6
We note that, because the state court provided no reasoning for its
denial of this claim, we do not know if it concluded that the mid-
deliberations communication with the jury was not a critical stage, or if
it found a “critical stage” but conducted harmless error review. If the lat-
ter, we would have found the state court’s conclusion “contrary to . . .
clearly established Federal law,” 28 U.S.C. § 2254(d)(1), and our inquiry
into the critical stage question would be de novo, without AEDPA’s defer-
ential constraints. Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (en
banc); see also Panetti, 127 S. Ct. at 2858-59. But we are bound to “pre-
sum[e] that state courts know and follow the law,” and we have been
instructed that AEDPA’s deferential standard “demands that state-court
decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537
U.S. 19, 24 (2002). We thus must assume the state court found that the
stage at issue here was not a “critical stage” such that Cronic requires
automatic reversal. Our inquiry is limited by AEDPA to determining
whether that conclusion was contrary to, or an unreasonable application
of, Cronic.
MUSLADIN v. LAMARQUE 1699
AEDPA does not require state and federal courts to
wait for some nearly identical factual pattern before
a legal rule must be applied. Nor does AEDPA pro-
hibit a federal court from finding an application of a
principle unreasonable when it involves a set of facts
different from those of the case in which the princi-
ple was announced. The statute recognizes, to the
contrary, that even a general standard may be
applied in an unreasonable manner.
Panetti v. Quarterman, 127 S. Ct. 2842, 2858 (2007) (citations
and quotation marks omitted); see also Williams, 529 U.S. at
382 (opinion of Stevens, J.) (“[R]ules of law may be suffi-
ciently clear for habeas purposes even when they are
expressed in terms of a generalized standard rather than as a
bright-line rule.”). As the Sixth Circuit stated, “[T]he Cronic
court has only carved out a broad rule, a rule that must be
applied in the many factually distinct situations that will come
before the lower courts.” Caver, 349 F.3d at 350 n.7 (holding
the absence of defense counsel during jury reinstruction to be
a deprivation of counsel during a critical stage under clearly
established federal law). Because Cronic provides a general
standard applicable to claims regarding the denial of counsel
at a “critical stage” of the proceedings, the question before us
is simply whether the state court’s application of that standard
in Musladin’s case was objectively unreasonable.
Cronic itself did not provide a general definition as to what
constitutes a “critical stage.” However, the Supreme Court
later clarified that the phrase was used “to denote a step of a
criminal proceeding, such as arraignment, that held significant
consequences for the accused.” Bell, 535 U.S. at 695-96 (foot-
note omitted). The cases cited in Cronic for the “critical
stage” rule support this basic standard. For example, in
Geders v. United States, 425 U.S. 80 (1976), the defendant
was not permitted to consult with his attorney during an over-
night recess in the middle of trial. The Supreme Court
reversed without conducting a prejudice inquiry, noting that
1700 MUSLADIN v. LAMARQUE
overnight recesses “are often times of intensive work, with
tactical decisions to be made and strategies to be reviewed.
The lawyer may need to obtain from his client information
made relevant by the day’s testimony, or he may need to pur-
sue inquiry along lines not fully explored earlier.” Id. at 88.
Given the import of the overnight trial recess in the develop-
ment of defense strategy, it is a time that plainly has “signifi-
cant consequences for the accused.” Similarly, in Herring v.
New York, 422 U.S. 853 (1975), defense counsel was not per-
mitted to make a closing argument. The Court, reversing
without discussing prejudice, described the role of closing
argument:
[C]losing argument serves to sharpen and clarify the
issues for resolution by the trier of fact in a criminal
case. For it is only after all the evidence is in that
counsel for the parties are in a position to present
their respective versions of the case as a whole. Only
then can they argue the inferences to be drawn from
all the testimony, and point out the weaknesses of
their adversaries’ positions. And for the defense,
closing argument is the last clear chance to persuade
the trier of fact that there may be reasonable doubt
of the defendant’s guilt. . . . In a criminal trial, which
is in the end basically a factfinding process, no
aspect of such advocacy could be more important
than the opportunity finally to marshal the evidence
for each side before submission of the case to judg-
ment.
Id. at 862.
[5] To determine whether Cronic applies to Musladin’s
claim, we must therefore determine whether the deprivation
of counsel here occurred during a stage holding “significant
consequences” for criminal defendants. Even if we answer
that question affirmatively, AEDPA requires that we then
determine whether a state court decision answering that ques-
MUSLADIN v. LAMARQUE 1701
tion in the negative would be an objectively unreasonable
application of Cronic’s general standard.
We first consider the significance of communications
between the jury and the trial court during jury deliberations.
Jury deliberations are the apex of the criminal trial. All the
evidence and arguments presented to the jury are processed
and weighed at that time. Jurors are particularly susceptible to
influence at this point, and any statements from the trial judge
— no matter how innocuous — are likely to have some
impact:
In a trial by jury . . . , the judge is not a mere moder-
ator, but is the governor of the trial for the purpose
of assuring its proper conduct and of determining
questions of law. The influence of the trial judge on
the jury is necessarily and properly of great weight,
and jurors are ever watchful of the words that fall
from him. Particularly in a criminal trial, the judge’s
last word is apt to be the decisive word.
Bollenbach v. United States, 326 U.S. 607, 612 (1946) (inter-
nal citations and quotation marks omitted).
[6] The delicate nature of communication with a deliberat-
ing jury means that defense counsel has an important role to
play in helping to shape that communication. The Supreme
Court so recognized over eighty years ago, in Shields v.
United States, 273 U.S. 583 (1927). Shields found error in the
trial court’s response to a mid-deliberations jury note without
notifying the defendant or his counsel:
“Where a jury has retired to consider of its verdict,
and supplementary instructions are required, either
because asked for by the jury or for other reasons,
they ought to be given either in the presence of coun-
sel or after notice and an opportunity to be present;
and written instructions ought not to be sent to the
1702 MUSLADIN v. LAMARQUE
jury without notice to counsel and an opportunity to
object.”
Id. at 588-89 (quoting Fillippon v. Albion Vein Slate Co., 250
U.S. 76 (1919)).7 Similar emphasis appears in our case law:
We have repeatedly recognized how seriously jurors
consider judges’ responses to their questions. . . .
[W]e know that analytically correct answers to a jury
may unnecessarily — and improperly — influence a
jury. Furthermore, even if not improper, we recog-
nize that some influence on the jury’s deliberations
is difficult to avoid when the jury is troubled enough
to seek advice. . . .
Because of the delicate nature of such mid-
deliberation inquiries, . . . [the p]resence [of the
defendant or his counsel] is critical when a jury’s
questions are discussed because counsel might object
to the instruction or may suggest an alternative man-
ner of stating the message — a critical opportunity
given the great weight that jurors give a judge’s
words. The defendant’s or attorney’s presence may
also be an important opportunity to try and persuade
the judge to respond.
Frantz, 533 F.3d at 742-43 (citations, quotation marks, alter-
ation, and footnote omitted).
Nor is defense participation significant only when deliver-
ing supplemental instructions. We have recognized its impor-
tance when responding to a jury’s deadlock:
7
Shields has been characterized as resting on “non-constitutionally
based rules of orderly trial procedure,” Rushen v. Spain, 464 U.S. 114, 119
n.4 (1983), but nonetheless is relevant for our purposes because it empha-
sizes the significance of communications with a deliberating jury.
MUSLADIN v. LAMARQUE 1703
A defendant’s participation in formulating a
response to a deadlocked jury, whether through his
counsel or by his personal presence as well, may be
important to ensuring the fairness of the verdict.
. . . [M]inority members of a deadlocked jury are
especially susceptible to pressure from the majority
to change their views. A defendant should be
afforded the opportunity to request that the jury be
reinstructed on the burden of proof or on its mem-
bers’ duty to decide according to their own con-
sciences.
United States v. Frazin, 780 F.2d 1461, 1469 (9th Cir. 1986).
We have also noted the significance of counsel when a jury
requests the readback of trial testimony:
If present and participating, [the defendants] or their
lawyers could have made certain, where appropriate,
that testimony of defense witnesses was read as well
as that of the state’s witnesses. They could also have
ensured that any cross-examination of prosecution
witnesses would be read in addition to direct testi-
mony. They could also have made certain that the
court reporter’s notes were accurate, that her notes
accurately reflected the witnesses’ testimony, and
that she did not unduly emphasize any part of the
requested testimony or use any improper voice
inflections.
Fisher v. Roe, 263 F.3d 906, 915 (9th Cir. 2001), overruled
on other grounds by Payton v. Woodford, 346 F.3d 1204 (9th
Cir. 2003) (en banc), rev’d sub nom, Brown v. Payton, 544
U.S. 133 (2005).
[7] These cases suggest that any communication to the jury
during deliberations carries significant consequences.8 None-
8
Two circuits have held that the delivery of supplemental jury instruc-
tions is a Cronic critical stage, and thus found the denial of counsel during
1704 MUSLADIN v. LAMARQUE
theless, several circuits have distinguished cases involving the
delivery of new, supplemental jury instructions from cases,
such as Musladin’s, in which the jury is given previously
agreed-upon instructions or read back trial testimony.9 To the
extent that those cases can be read as resting the Cronic
assessment on the response rather than the question — that is,
on whether the jury was given a supplemental instruction or
simply referred to previous instructions or testimony — we dis-
agree.10 The “stage” at which the deprivation of counsel may
such delivery a Sixth Amendment violation. French v. Jones, 332 F.3d
430, 438 (6th Cir. 2003); Curtis v. Duval, 124 F.3d 1, 4 (1st Cir. 1997)
(finding that “recalling the jury for supplemental instructions after deliber-
ations are underway is a critical stage of a criminal trial” under Cronic).
The Seventh Circuit, however, has held to the contrary. United States v.
Widgery, 778 F.2d 325, 329 (7th Cir. 1985) (“A judge’s failure to show
jurors’ notes to counsel and allow them to comment before responding
violates Fed. R. Crim. P. 43(a), not the constitution.”).
9
In Hudson v. Jones, 351 F.3d 212 (6th Cir. 2003), for example, the
Sixth Circuit held that “reading instructions to the jury is not a critical
stage of the proceedings if trial counsel has previously agreed to the
instructions.” Id. at 217 (distinguishing French “because the supplemental
instructions given in French had not been articulated by the trial court
before the jury began deliberating”); see also United States v. Hillsman,
480 F.3d 333, 335-36 (5th Cir. 2007) (citing Hudson for the proposition
that “the ‘rereading of identical jury instructions is not a critical stage of
a criminal trial’ ”); United States v. Toliver, 330 F.3d 607, 614 (3d Cir.
2003) (“Clarifying the substantive elements of the charged offense . . . or
instructing a deadlocked jury . . . affirmatively guides jurors as to how
they should fulfill their decisionmaking function. But submitting verbatim
specifically excerpted record testimony that the jury itself had requested
does not similarly ‘instruct’ the jury.”).
10
To some extent, the cases cited can be read as holding simply that a
jury’s request that instructions already given be read again is not a critical
stage. To the degree that this is their import, they are not directly relevant,
as that is not what happened in this case. See Hudson, 351 F.3d at 214
(finding the re-reading of previously-given instructions in response to
jury’s note, “We need the definition of aiding and abetting and the differ-
ence between second and first degree murder,” is not a Cronic critical
stage). Here, the jury asked for “amplification,” not for a repetition of the
MUSLADIN v. LAMARQUE 1705
be critical should be understood as the formulation of the
response to a jury’s request for additional instructions, rather
than its delivery. Counsel is most acutely needed before a
decision about how to respond to the jury is made, because it
is the substance of the response — or the decision whether to
respond substantively or not — that is crucial. See Frantz, 533
F.3d at 743 (“The defendant’s or attorney’s presence may also
be an important opportunity ‘to try and persuade the judge to
respond.’ ” (quoting United States v. Barragan-Devis, 133
F.3d 1287, 1289 (9th Cir. 1998))).
[8] Musladin’s case is a perfect example: Although the trial
court merely referred the jury to the previously agreed-upon
instructions, Musladin’s trial counsel averred that, had he
been present when the response was formulated, he would
have urged the trial court to respond substantively. Thus, it is
the missed opportunity to influence the trial court’s response
to a jury question that is the significant moment.
[9] Accordingly, were we reviewing the question before us
de novo, we would find that Musladin was denied counsel at
a “critical stage,” thereby triggering Cronic’s rule of auto-
matic reversal. However, AEDPA permits us to grant Mus-
ladin’s request for relief only if the state court’s decision was
“contrary to, or an unreasonable application of,” the Cronic
standard. 28 U.S.C. § 2254(d)(1). Specifically, we must find
that a state court would be objectively unreasonable in hold-
ing that a mid-deliberations communication to the jury that
does no more than refer the jury back to the original jury
instructions is not a “critical stage” under Cronic.
instructions already given. The “amplification” request required the trial
court to decide whether to provide additional instructions and, if so, what
they should be. That the trial judge refused the request for “amplification”
cannot retroactively characterize the “stage” at which that response was
given.
1706 MUSLADIN v. LAMARQUE
[10] This we cannot do. Although defense counsel plays a
crucial role in formulating any mid-deliberation communica-
tion to the jury by the trial judge, where the judge simply
directs the jury to his previous instructions, the potential
impact of defense counsel’s inability to participate is signifi-
cantly lessened, because defense counsel played a role in the
formulation of those instructions. In such circumstances, the
jury receives only such information as was formulated with
defense counsel’s participation. Although we do not believe
that defense counsel’s prior participation is sufficient to ren-
der a mid-deliberation communication to the jury less “criti-
cal” for purposes of the Cronic analysis, we cannot say that
it would be unreasonable for a state court to so conclude.11
Accordingly, we are not free to hold that the state court’s
decision to require a demonstration of prejudice resulting
from the denial of counsel here was objectively unreasonable.
C.
[11] Because the state court’s decision not to apply Cronic
to Musladin’s case was not objectively unreasonable, we may
grant Musladin’s petition only if the denial of counsel at issue
here was prejudicial. See Barragan-Devis, 133 F.3d at 1289;
Toliver, 330 F.3d at 615; see also Satterwhite, 486 U.S. at 258
(reviewing denial of counsel before psychiatric examination
in violation of Sixth Amendment for harmless error); Rogers
v. United States, 422 U.S. 35, 36-37, 40-41 (1975). Specifi-
cally, we must determine whether the denial of counsel “ ‘had
substantial and injurious effect or influence in determining the
jury’s verdict.’ ” Brecht, 507 U.S. at 637 (quoting Kotteakos,
328 U.S. at 776). Musladin concedes that the instructions cor-
rectly stated the law, but argues that the error was not harm-
11
We note that other circuits have accepted this point of distinction. See
supra note 9. The mere existence of authority from other circuits does not
render a state court’s decision objectively reasonable for purposes of
AEDPA. It is simply a factor that we may take into consideration. Like
state courts, federal circuit courts may sometimes apply clearly established
Supreme Court precedent in an objectively unreasonable manner.
MUSLADIN v. LAMARQUE 1707
less, because the jury was confused about whether he could
be convicted of first degree murder based on a finding of
implied malice, and the trial court’s response — referring the
jury to the original, apparently confusing, instructions — was
insufficient to clarify the matter.
The relevant instructions were as follows:
“Malice” may be either express or implied. Malice is
express when there is manifested an intent unlaw-
fully to kill a human being.
Malice is implied when the killing resulted from an
intentional act, the natural consequences of the act
are dangerous to human life, and the act was deliber-
ately performed with knowledge of the danger to,
and with conscious disregard for, human life.
* * *
All murder which is perpetrated by any kind of will-
ful, deliberate and premeditated killing with express
malice aforethought is murder of the first degree.
The word “willful” as used in this instruction means
intentional. The word “deliberate” means formed or
arrived at or determined upon as a result of careful
thought and weighing of considerations for and
against the proposed course of action. The word
“premeditated” means considered beforehand.
If you find that the killing was preceded and accom-
panied by a clear, deliberate intent on the part of the
defendant to kill, which was the result of delibera-
tion and premeditation, so that it must have been
formed upon pre-existing reflection and not under a
sudden heat of passion or other condition precluding
1708 MUSLADIN v. LAMARQUE
the idea of deliberation, it is murder of the first
degree.
* * *
To constitute a deliberate and premeditated killing,
the slayer must weigh and consider the question of
killing and the reasons for and against such a choice
and, having in mind the consequences, he decides to
and does kill.
Murder of the second degree is the unlawful killing
of a human being with malice aforethought when
there is manifested an intention unlawfully to kill a
human being but the evidence is insufficient to
establish deliberation and premeditation.
These instructions clearly required deliberation and pre-
meditation for a finding of first degree murder. “If you find
that the killing was preceded and accompanied by a clear,
deliberate intent on the part of the defendant to kill, which
was the result of deliberation and premeditation, so that it
must have been formed upon pre-existing reflection and not
under a sudden heat of passion or other condition precluding
the idea of deliberation, it is murder in the first degree.” The
reference to “a clear, deliberate intent on the part of the defen-
dant to kill” accords with the earlier definition of “express
malice” as “an intent unlawfully to kill a human being.” In
addition, the jury was instructed that “ ‘deliberate’ means
formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the
proposed course of action” and “ ‘premeditated’ means con-
sidered beforehand.” The point was further emphasized: “To
constitute a deliberate and premeditated killing, the slayer
must weigh and consider the question of killing and the rea-
sons for and against such a choice and, having in mind the
consequences, he decides to and does kill.”
MUSLADIN v. LAMARQUE 1709
As the California Supreme Court has concluded, a jury
“could not find premeditation and deliberation without deter-
mining that defendant had a state of mind constituting express
malice.” People v. Catlin, 26 Cal. 4th 81, 151 (2001). Where,
as here, “the premeditation instruction included a requirement
that the jury find a ‘killing . . . preceded and accompanied by
a clear, deliberate intent on the part of the defendant to kill[,]’
. . . [t]he jury would understand the requirements of express
malice under the instructions as a whole.” Id. (first alteration
in original, quoting CALJIC No. 8.20).
[12] In sum, even if the jury believed “implied malice” was
sufficient for first degree murder, the instructions clearly
required it to find deliberation and premeditation before
reaching its verdict of first degree murder. In finding delibera-
tion and premeditation, the jury effectively found express
malice. Thus, we cannot conclude that the deprivation of
counsel here “ ‘had substantial and injurious effect or influ-
ence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at
637 (quoting Kotteakos, 328 U.S. at 776).
II.
Musladin next argues that his trial counsel was ineffective
in (1) failing to request a limiting instruction on hearsay state-
ments made by his son, Garrick, and (2) failing to investigate
the victim’s threat to Musladin. As with the Cronic claim, the
state courts denied both these claims on the merits but without
a reasoned decision. So we “independently review the record,
[but] still defer to the state court’s ultimate decision.” Pirtle,
313 F.3d at 1167.
To establish ineffective assistance of counsel, a defendant
first “must show that counsel’s performance was deficient,” in
other words, “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland v. Washington, 466
U.S. 668, 687 (1984). He then must show he was prejudiced
1710 MUSLADIN v. LAMARQUE
by the deficient performance, “that counsel’s errors were so
serious as to deprive the defendant of a fair trial.” Id.
A.
1.
Pamela’s brother, Michael Albaugh, testified that, when he
saw Musladin reach under the seat of his car, he yelled, “He’s
got a gun.” On cross-examination, defense counsel asked
Albaugh why he believed Musladin was reaching for a gun.
Albaugh testified that Musladin’s son, Garrick, then three
years old, had previously told Albaugh that Musladin had a
gun. On redirect, the prosecutor probed further into Garrick’s
statement. When defense counsel objected, the trial court
overruled the objection on the ground that defense counsel
had opened the door.12 Albaugh then testified that, about a
month before the shooting, Garrick told him Musladin had a
gun and said he “was going to shoot Tom [Studer] with it.”
In his closing argument, the prosecutor relied on Albaugh’s
testimony as uncontroverted evidence of Musladin’s intent to
murder Studer:
[S]omething that was uncontroverted in this case, a
statement by Garrick . . . [that] “My daddy’s got a
big black gun. He’s going to shoot Tom with it.”
You know what? The defense never approached that
subject with his client. The closest they got to it, he
showed Garrick the gun. Never attacked that state-
12
Although the trial court did not explain the basis for its ruling, the Cal-
ifornia Court of Appeal on direct appeal concluded that the statement was
admitted to “explain[ ] [Albaugh]’s state of mind at the time. [Albaugh]
was aware that defendant had a gun prior to seeing it, because Garrick had
told him both that his father had a gun and that he intended to use the
weapon against Tom.”
MUSLADIN v. LAMARQUE 1711
ment. It’s true. There is no evidence controverting
this statement by Garrick to Mike Albaugh . . . .
* * *
He shows the gun to Garrick and he talks about his
intent when he holds that gun, what he wants to do
with this. As he showed it to a four-year-old.[13]
That’s what he did. There’s been no denial by the
defendant as to making that statement. The only evi-
dence before you is that it’s true.
Musladin argues that defense counsel’s failure to ask for a
limiting instruction directing the jury that it could not con-
sider the statement for its truth constituted ineffective assis-
tance of counsel.14
2.
To prevail on his ineffective assistance of counsel claim,
Musladin must first show that trial counsel’s performance
“fell below an objective standard of reasonableness.” Strick-
land, 466 U.S. at 687.
The state argues that the decision not to request a limiting
instruction was a reasonable trial strategy because trial coun-
sel did not want to draw the jury’s attention to Garrick’s dam-
aging statement. In general, the decision not to request a
limiting instruction is “solidly within the acceptable range of
strategic tactics employed by trial lawyers in the mitigation of
damning evidence.” United States v. Gregory, 74 F.3d 819,
823 (7th Cir. 1996). Here, the testimony occupied only a very
minor portion of the eleven-day trial. Were the issue confined
13
In fact, the evidence showed that Garrick was three at the time.
14
We note that Musladin makes no distinction between Garrick’s state-
ment to Albaugh that Musladin had a gun and Garrick’s statement that
Musladin said he was going to shoot Studer with the gun.
1712 MUSLADIN v. LAMARQUE
to the failure to request a limiting instruction during the taking
of evidence, we might find the decision not to request a limit-
ing instruction to constitute adequate representation.
But the reasonable strategic basis for failing to request a
limiting instruction vanished when, during closing arguments,
the prosecutor pointed to Garrick’s statements as uncontro-
verted evidence of premeditation. The jury’s attention was
directly drawn to the evidence, so a limiting instruction did
not risk highlighting evidence the jury might have forgotten.
More significantly, the jury was invited to draw the precise
inference — that Garrick’s statement was true — that a limit-
ing instruction would have prohibited.
A similar situation was presented in Albrecht v. Horn, 485
F.3d 103 (3d Cir. 2007). Albrecht was charged with murder
and arson after allegedly setting his house on fire and causing
the deaths of his wife, mother, and daughter. Id. at 109. Dur-
ing the trial, the state introduced substantial evidence that, in
the seven months preceding the fire, Albrecht had physically
abused his wife. Id. at 109-10. This evidence was introduced
to prove motive and identity, which the state argued “could be
inferred from the violence and hostility Albrecht had directed
toward Mrs. Albrecht in the months before the fire.” Id. at
109. Although the evidence was introduced for this limited
purpose, Albrecht’s attorney did not request a limiting
instruction.
In his federal habeas petition, Albrecht argued that this fail-
ure constituted ineffective assistance of counsel, because the
jury could have impermissibly used the evidence of spousal
abuse as propensity evidence. The Third Circuit acknowl-
edged that, in general, “[t]rial counsel is not constitutionally
required to request a limiting instruction any time one could
be given, because counsel might reasonably conclude that
such an instruction might inadvertently call attention to the
evidence of prior bad acts.” Id. at 127. But during closing
arguments at Albrecht’s trial,
MUSLADIN v. LAMARQUE 1713
the prosecutor improperly related the evidence of
spousal abuse to Albrecht’s character when he stated
that: “If this man were capable of doing this for such
a thing, carry it on to its logical conclusion, what
type of man is Al Albrecht.” In doing so, the prose-
cutor did not limit his use of the bad acts evidence
to proving motive. Instead, he explicitly called upon
the jury, by asking “what type of man is Al
Albrecht,” to view the evidence of prior bad acts as
evidence of Albrecht’s bad character and propensity
to commit this crime.
Id. at 128 (record citation omitted). In such a case, “the need
for a limiting instruction was not hypothetical,” and the fail-
ure to request it was deficient performance. Id. at 128.
[13] Such is the case here. After the prosecutor drew the
jury’s attention to the damaging statement and invited them to
draw the precise inference that a limiting instruction would
have forbidden, Musladin’s trial counsel’s failure to request a
limiting instruction “fell below an objective standard of rea-
sonableness.” Strickland, 466 U.S. at 687.15
3.
To prevail on his Strickland claim, Musladin must further
show “that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at
694. Musladin argues that Garrick’s statement was the only
evidence of premeditation, and that he was thus prejudiced by
his attorney’s failure to request a limiting instruction. Cer-
15
Because there was no justification for trial counsel’s failure to request
a limiting instruction, a decision finding trial counsel’s performance non-
deficient would be “objectively unreasonable” for the purposes of
AEDPA.
1714 MUSLADIN v. LAMARQUE
tainly, Garrick’s statement was powerful evidence of premed-
itation. Nevertheless, even though we might agree with
Musladin’s argument if we were reviewing this case de novo,
we cannot do so here, in light of AEDPA’s requirement that
we defer to the state court’s conclusion denying the claim. See
Brown v. Ornoski, 503 F.3d 1006, 1016 (9th Cir. 2007). Def-
erence does not, of course, mean blind acceptance, but it
means enough to compel us to accept the state court’s conclu-
sion where the answer is as unclear as it is here.
The evidence at trial showed that Musladin fired two shots.
He fired the first as he stood by his truck. According to Mus-
ladin’s testimony, he believed Studer and Albaugh were com-
ing toward him with weapons. The evidence with respect to
Musladin’s premeditation for this shot was disputed. The state
submitted evidence that Musladin made threatening state-
ments to and about Studer before shooting; Musladin denied
making such statements. Albaugh testified that Musladin did
not load his gun before firing, suggesting it was already
loaded and that he had contemplated using it; Musladin testi-
fied it was unloaded and inside its case because he had not
planned to use it. And there was conflicting testimony about
whether Studer was running from or facing Musladin when
Musladin fired the shot. So, had the first shot been the only
one, Garrick’s statement that his father had planned to shoot
Studer could well have tipped the jury toward believing the
prosecution’s version of these facts, and the failure to ask for
an instruction telling the jury not to rely on the statement for
that purpose could have altered the outcome of the trial.
But — according to Musladin’s own testimony — after he
saw his first shot hit its target, he took four or five steps
toward the garage, where Studer was, and then fired another
shot.16 The evidence strongly suggested that this shot was
16
Musladin testified on cross-examination as follows:
Q. Sir, you testified on direct examination that you walked up
the driveway [toward the garage]?
MUSLADIN v. LAMARQUE 1715
fired from close range.17 Although Musladin testified that he
saw “a gun barrel c[o]me out and . . . heard a loud noise”
before firing his second shot, no gun was found near Studer’s
body, nor was there any object that might have been mistaken
for a gun. Moreover, it is significant that Musladin chose to
head toward the garage, where Studer was located, rather than
away from it.
Thus, even if the first shot was fired in the belief that Mus-
ladin was defending himself from attack, it would not be
unreasonable for a jury to reject Musladin’s contention that he
followed Studer into the garage to fire again for that reason.18
A. About four or five steps.
Q. So here’s a situation where someone’s still armed in your
belief?
A. Yes.
Q. And you walk up to finish off the job, right?
A. No.
Q. Why do you walk up the driveway then?
A. To get away from Garrick. I didn’t want any gunshots com-
ing towards him.
Q. Sir, you could walk in a lot of different directions besides
walking up.
A. You’re in shock. You’re trying to defend yourself. You’re
just doing what you can to survive.
17
Although the evidence indicated that the second shot hit Studer after
first ricocheting off something else, all the evidence, including Musladin’s
own testimony, indicated that Musladin purposefully aimed at Studer but
simply missed.
18
Musladin argued both perfect and imperfect self-defense at trial. As
the jury was charged:
The killing of another person in self-defense is justifiable and not
unlawful when the person who does the killing actually and rea-
sonably believes that there is an imminent danger that the other
1716 MUSLADIN v. LAMARQUE
As the jury was instructed, even a brief moment of premedita-
tion is sufficient:
The law does not undertake to measure in units of
time the length of the period during which the
thought must be pondered before it can ripen into an
intent to kill which is truly deliberate and premedi-
tated.
The time will vary with different individuals and
under varying circumstances.
The true test is not the duration of time, but rather
the extent of the reflection. A cold, calculated judg-
ment and decision may be arrived at in a short period
of time . . . .
And, not surprisingly, in closing, the prosecutor argued that
premeditation could be found from the fact of the second shot
alone:
[H]ow reasonable is it if you believe someone is still
armed with a rifle that you are going to walk right
in their line of fire.
person would either kill him or cause him great bodily injury and
that it was necessary under the circumstances for him to use in
self-defense, such force or means as might cause the death of the
other person, for the purpose of avoiding death or great bodily
injury to himself.
* * *
A person, who kills another in the actual but unreasonable belief
in the necessity to defend against imminent peril to life or great
bodily injury, kills unlawfully, but does not harbor malice afore-
thought and is not guilty of murder. This would be so even
though a reasonable person in the same situation seeing and
knowing the same facts would not have had the same belief.
MUSLADIN v. LAMARQUE 1717
* * *
All these people that were out there are running
away. There is nothing preventing him from running
north or south this way. He doesn’t try to hide. He
pursues Tom because he knows Tom’s been shot and
gone down. He knows he has disabled him. And he
follows him.
* * *
The real question, is there premeditation and deliber-
ation in this case? From all the factors, it is. He car-
ries the gun there. He uses the gun. And then he uses
it a second time to shoot someone almost point blank
in the head. That’s [sic] second shot makes it, if you
didn’t find on the first shot, definitely makes it first
degree.
In California, however, “a verdict of murder in the first
degree on a theory of a wilful, deliberate, and premeditated
killing is proper only if the slayer killed as a result of careful
thought and weighing of considerations; as a deliberate judg-
ment or plan; carried on cooly and steadily, especially accord-
ing to a preconceived design.” People v. Anderson, 70 Cal. 2d
15, 26 (1968) (citations omitted).
The true test is not the duration of time, but rather
the extent of the reflection. A cold, calculated judg-
ment and decision may be arrived at in a short period
of time, but a mere unconsidered and rash impulse,
even though it included an intent to kill, is not such
deliberation and premeditation as will fix an unlaw-
ful killing as murder of the first degree.
To constitute a deliberate and premeditated killing,
the slayer must weigh and consider the question of
killing and the reasons for and against such a choice
1718 MUSLADIN v. LAMARQUE
and, having in mind the consequences, he decides to
and does kill.
People v. Perez, 2 Cal. 4th 1117, 1124 (1992) (citations omit-
ted) (emphasis added). On the record in this case, a jury might
have concluded that the evidence relating to the second shot
suggested only “a mere unconsidered and rash impulse . . . not
such deliberation and premeditation as will fix an unlawful
killing as murder of the first degree,” and that this evidence
was insufficient to demonstrate that Musladin “weigh[ed] and
consider[ed] the question of killing and the reasons for and
against such a choice . . . .” Id.
[14] While thus not conclusive, the second shot nonetheless
constituted strong and independent evidence of premeditation.
On the basis of that evidence, it would not have been unrea-
sonable for the state court to have concluded that there is no
“reasonable probability that . . . the result of the proceeding
would have been different” had Musladin’s attorney requested
a limiting instruction as to Garrick’s statement. 28 U.S.C.
§ 2254(d)(1); Strickland, 466 U.S. at 694.
B.
With his habeas petition, Musladin submitted a declaration
asserting that, “[i]n pre-trial conversations with [defense
counsel], although I was unable to provide him with specific
names, I told him I had received threats while I was at work.”
He also submitted a declaration from his former supervisor
stating that the supervisor listened to a phone conversation
between Musladin and a man Musladin subsequently identi-
fied as his estranged wife’s new boyfriend, and heard the man
tell Musladin, “you better leave us the fuck alone o[r] I’ll kill
you.”
[15] We need not decide whether trial counsel’s alleged
failure to investigate Musladin’s vague statement was defi-
cient performance, because we cannot conclude that the state
MUSLADIN v. LAMARQUE 1719
court was constrained to find that Musladin was prejudiced by
the failure. Although evidence of this threat might have per-
suaded the jury to some extent that Musladin acted in self-
defense when firing the first shot, it is, for the reasons already
discussed, less likely that the jury would have found that
Musladin actually believed his life was in danger when he
took steps toward the garage and fired the second shot at a
man he knew he had previously hit. The state court could rea-
sonably have found that even if trial counsel had investigated
this alleged threat, “the result of the proceeding would [not]
have been different.” Strickland, 466 U.S. at 694.
III.
Finally, Musladin argues that the trial court’s exclusion of
evidence that Musladin had claimed self-defense immediately
after his arrest deprived him of his due process rights to a fair
trial and to present a defense.
The prosecutor sought to undermine Musladin’s self-
defense theory by suggesting that he had manufactured it for
the trial, arguing in closing: “[Musladin] never says to [the
arresting officer], they came at me with a machete, he came
at me with a rifle. Nothing about self-defense. . . . But now
after a year and a half, the defendant came up with some
story.” To rebut this argument, Musladin proffered testimony
from his father that he had called his father from the police
station on the day of the shooting but after his arrest, and told
his father that he had acted in self-defense.
The trial court refused to permit the testimony because it
was “a self-serving declaration [and] plainly hearsay.” The
court of appeal affirmed on direct appeal, finding the evidence
did not fall under the prior consistent statement exception to
the hearsay rule because the statement was made after Mus-
ladin’s arrest and thus after the motive for fabrication arose.
See Cal. Evid. Code §§ 791(b), 1236. Musladin does not chal-
lenge the state’s ruling as a matter of state evidentiary law,
1720 MUSLADIN v. LAMARQUE
but argues the exclusion of the evidence violated his due pro-
cess rights.
[16] We need not consider the merits of Musladin’s claim
regarding the exclusion of evidence because we conclude that
any error did not “ fatally infect[ ] the trial.” Lisenba v. Cali-
fornia, 314 U.S. 219, 236 (1941). The proffered testimony has
some probative value, as it slightly bolsters the credibility of
Musladin’s self-defense theory. Yet, although the testimony
rebuts the state’s suggestion that Musladin spent more than a
year formulating the theory, it does not refute the state’s more
basic argument — that Musladin concocted the theory after
his arrest. Thus, it adds some support, but only a little, to
Musladin’s defense. And even this small support is under-
mined by the questionable reliability of the evidence, as the
witness is a close family member. See Whelchel v. Washing-
ton, 232 F.3d 1197, 1211 (9th Cir. 2000) (“Because the reli-
ability of the evidence was suspect, its probative value to
Whelchel’s alibi was minimal.”). In short, the essential evi-
dentiary landscape — that the only evidence of Musladin’s
self-defense was his own statements — would remain the
same had the proffered testimony been allowed, so the trial as
a whole was not “fatally infected” by the exclusion of the evi-
dence. Accordingly, we do not believe that the exclusion of
the evidence violated Musladin’s due process rights.
CONCLUSION
The district court’s denial of Musladin’s habeas petition is
AFFIRMED.