FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATHEW MUSLADIN, 

No. 03-16653 Petitioner-Appellant,

D.C. No.

v.  CV-00-01998-JL

ANTHONY LAMARQUE,

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
COUNSEL

Sanford Svetcov, Lerach Coughlin Stoia Geller Rudman &

Robbins LLP, San Francisco, California, for the petitionerappellant. 

Gregory A. Ott and Peggy S. Ruffra, Deputy Attorneys General, 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. 

1688 MUSLADIN v. LAMARQUE
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 impermissibly 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. Musladin 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 disMUSLADIN v. LAMARQUE 1689
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 attorney’s failure to request a limiting instruction and to investigate 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 adjudicated 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 unreasonable determination of the facts in light of the evidence 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 governing 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,

1690 MUSLADIN v. LAMARQUE
529 U.S. 362, 405-06 (2000). It will involve an “unreasonable

application of” federal law only if it is “objectively unreasonable.” 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 verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see

also Fry v. Pliler, 127 S.Ct. 2321, 2328 (2007) (Brecht standard 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. Fulminante, 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 decision, we conduct “an independent review of the record . . . to

determine whether the state court [was objectively unreasonable] 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).

MUSLADIN v. LAMARQUE 1691
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 contains the phrase “express malice” — Whereas the

def’n of murder of the second degree, “express” malice 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

1The crossed-out portion appears as it did in the jury’s note. 

2Musladin agrees that the original jury instructions correctly state that

under California law, express malice is required for a verdict of firstdegree murder. 

3On Musladin’s direct appeal, the California court of appeal ruled that

he had waived this claim. On his state habeas appeal, however, the Cali1692 MUSLADIN v. LAMARQUE
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 criminal 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 generally not implicated.” Id. Nonetheless, there are some circumstances “that are so likely to prejudice the accused that the

cost of litigating their effect in a particular case is unjustified.” Id. (footnote omitted). Cronic held that courts are “require[d] . . . to conclude that a trial is unfair if the accused is

denied counsel at a critical stage of his trial.” Id. at 659 (footnote 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. 

4For this proposition, Cronic cited, inter alia, cases involving the complete 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. 

MUSLADIN v. LAMARQUE 1693
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 prejudice: “There are . . . circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a

particular case is unjustified. . . . The presumption that counsel’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). Relying on Cronic, the Sixth Circuit has recently held that the

deprivation of counsel during jury reinstruction is automatically 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 petitioner’s argument that depriving a capital defendant of the opportunity to consult with counsel before participating in a

psychiatric examination designed to determine his future dangerousness — 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

1694 MUSLADIN v. LAMARQUE
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 complete 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, Satterwhite and Fulminante indicate that a new test, focusing on the

pervasiveness of the error, has been substituted for Cronic’s

MUSLADIN v. LAMARQUE 1695
bright-line rule that deprivation of counsel at a critical stage

is automatically reversible error.5

[3] We cannot agree. Cronic specifically holds that automatic 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 follow 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, leaving 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 applicable 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:

5The 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 presuming 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 circumscribed 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 “momentary lapse” not warranting a presumption of prejudice). 

1696 MUSLADIN v. LAMARQUE
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 litigating 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 assistance 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 circumstance 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 circumstances ‘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. Taylor, 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 counsel 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

MUSLADIN v. LAMARQUE 1697
(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 governed by AEDPA.6

 28 U.S.C. § 2254(d)(1).

3.

We next consider whether the mid-deliberations communication with the jury here constituted a critical stage of Musladin’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:

6We note that, because the state court provided no reasoning for its

denial of this claim, we do not know if it concluded that the middeliberations communication with the jury was not a critical stage, or if

it found a “critical stage” but conducted harmless error review. If the latter, 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 deferential 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 “presum[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. 

1698 MUSLADIN v. LAMARQUE
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 prohibit 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 principle 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 sufficiently 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 (footnote 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 overnight recess in the middle of trial. The Supreme Court

reversed without conducting a prejudice inquiry, noting that

MUSLADIN v. LAMARQUE 1699
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 pursue inquiry along lines not fully explored earlier.” Id. at 88.

Given the import of the overnight trial recess in the development of defense strategy, it is a time that plainly has “significant consequences for the accused.” Similarly, in Herring v.

New York, 422 U.S. 853 (1975), defense counsel was not permitted 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 judgment. 

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 ques1700 MUSLADIN v. LAMARQUE
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 moderator, 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) (internal citations and quotation marks omitted). 

[6] The delicate nature of communication with a deliberating 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 counsel or after notice and an opportunity to be present;

and written instructions ought not to be sent to the

MUSLADIN v. LAMARQUE 1701
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 recognize 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 middeliberation 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 manner 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, alteration, and footnote omitted). 

Nor is defense participation significant only when delivering supplemental instructions. We have recognized its importance 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 emphasizes the significance of communications with a deliberating jury. 

1702 MUSLADIN v. LAMARQUE
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 members’ duty to decide according to their own consciences. 

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 testimony. 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 None8Two circuits have held that the delivery of supplemental jury instructions is a Cronic critical stage, and thus found the denial of counsel during

MUSLADIN v. LAMARQUE 1703
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 disagree.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 deliberations 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.”). 

10To 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 difference between second and first degree murder,” is not a Cronic critical

stage). Here, the jury asked for “amplification,” not for a repetition of the

1704 MUSLADIN v. LAMARQUE
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 automatic reversal. However, AEDPA permits us to grant Musladin’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 holding 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. 

MUSLADIN v. LAMARQUE 1705
[10] This we cannot do. Although defense counsel plays a

crucial role in formulating any mid-deliberation communication 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 significantly 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 render a mid-deliberation communication to the jury less “critical” 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). Specifically, 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 correctly stated the law, but argues that the error was not harm11We 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. 

1706 MUSLADIN v. LAMARQUE
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 unlawfully 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 deliberately performed with knowledge of the danger to,

and with conscious disregard for, human life. 

* * *

All murder which is perpetrated by any kind of willful, 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 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

MUSLADIN v. LAMARQUE 1707
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 premeditation 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 defendant 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 considered 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 reasons for and against such a choice and, having in mind the

consequences, he decides to and does kill.” 

1708 MUSLADIN v. LAMARQUE
As the California Supreme Court has concluded, a jury

“could not find premeditation and deliberation without determining 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 deliberation and premeditation, the jury effectively found express

malice. Thus, we cannot conclude that the deprivation of

counsel here “ ‘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).

II.

Musladin next argues that his trial counsel was ineffective

in (1) failing to request a limiting instruction on hearsay statements 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

MUSLADIN v. LAMARQUE 1709
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 state12Although the trial court did not explain the basis for its ruling, the California 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.”

1710 MUSLADIN v. LAMARQUE
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 evidence 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 consider the statement for its truth constituted ineffective assistance 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.” Strickland, 466 U.S. at 687. 

The state argues that the decision not to request a limiting

instruction was a reasonable trial strategy because trial counsel did not want to draw the jury’s attention to Garrick’s damaging 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

13In fact, the evidence showed that Garrick was three at the time. 

14We note that Musladin makes no distinction between Garrick’s statement to Albaugh that Musladin had a gun and Garrick’s statement that

Musladin said he was going to shoot Studer with the gun. 

MUSLADIN v. LAMARQUE 1711
to the failure to request a limiting instruction during the taking

of evidence, we might find the decision not to request a limiting 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 uncontroverted 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 limiting 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. During 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 failure constituted ineffective assistance of counsel, because the

jury could have impermissibly used the evidence of spousal

abuse as propensity evidence. The Third Circuit acknowledged 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, 

1712 MUSLADIN v. LAMARQUE
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 prosecutor 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 failure 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 reasonableness.” 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 counsel’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. Cer15Because there was no justification for trial counsel’s failure to request

a limiting instruction, a decision finding trial counsel’s performance nondeficient would be “objectively unreasonable” for the purposes of

AEDPA. 

MUSLADIN v. LAMARQUE 1713
tainly, Garrick’s statement was powerful evidence of premeditation. 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). Deference does not, of course, mean blind acceptance, but it

means enough to compel us to accept the state court’s conclusion 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 Musladin’s testimony, he believed Studer and Albaugh were coming 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 statements 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 testified 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

16Musladin testified on cross-examination as follows: 

Q. Sir, you testified on direct examination that you walked up

the driveway [toward the garage]? 

1714 MUSLADIN v. LAMARQUE
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 Musladin 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 coming 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.

17Although 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. 

18Musladin 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 reasonably believes that there is an imminent danger that the other

MUSLADIN v. LAMARQUE 1715
As the jury was instructed, even a brief moment of premeditation 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 premeditated. 

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 judgment 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 aforethought 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.

1716 MUSLADIN v. LAMARQUE
* * *

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 deliberation in this case? From all the factors, it is. He carries 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 judgment or plan; carried on cooly and steadily, especially according 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 judgment 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 unlawful 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

MUSLADIN v. LAMARQUE 1717
and, having in mind the consequences, he decides to

and does kill. 

People v. Perez, 2 Cal. 4th 1117, 1124 (1992) (citations omitted) (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 unreasonable 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 identified 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 deficient performance, because we cannot conclude that the state

1718 MUSLADIN v. LAMARQUE
court was constrained to find that Musladin was prejudiced by

the failure. Although evidence of this threat might have persuaded the jury to some extent that Musladin acted in selfdefense 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 reasonably 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 selfdefense 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 Musladin’s arrest and thus after the motive for fabrication arose.

See Cal. Evid. Code §§ 791(b), 1236. Musladin does not challenge the state’s ruling as a matter of state evidentiary law,

MUSLADIN v. LAMARQUE 1719
but argues the exclusion of the evidence violated his due process 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. California, 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 undermined by the questionable reliability of the evidence, as the

witness is a close family member. See Whelchel v. Washington, 232 F.3d 1197, 1211 (9th Cir. 2000) (“Because the reliability of the evidence was suspect, its probative value to

Whelchel’s alibi was minimal.”). In short, the essential evidentiary 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 evidence. 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. 

1720 MUSLADIN v. LAMARQUE