NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PHILLIP L. WRIGHT ,

Petitioner

- Appell ant ,

v. CONNIE GIBSON ,

Respondent

- Appellee

. No. 17

- 55388
D.C. No. 2:13

- cv - 09571

- DMG

- AFM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California, Los Angeles Dolly M. Gee , District Judge , Presiding Argued and Submitted January 8 , 20 20 Pasadena, California
Before: WATFORD and BENNETT , Circuit Judges , and RAKOFF, * * District Judge.
In Wainwright v. Greenfield , 474 U.S. 284, 292 , 295 (1986), the United
States Supreme Court held that it is a due process violation for a prosecutor to use

a defendant’s post

-

Miranda silence to overcome a plea of insanity. Yet, in the instant case, the prosecutor repeatedly violated Wainwright in the sanity phase of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 

# FILED

JAN 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

the state court criminal trial of petitioner Phillip L. Wright, going so far as to argue to the jury on summation that Wr ight’s invocation at the time of his arrest of his constitutional rights to silence and to counsel was “in and of itself” sufficient to reject his plea of insanity. Based on these Wainwright violation s, Wright sought
habeas relief from the California Court of Appeal, which nevertheless denied his petition , finding in effect that any error was harmless

. After the California Supreme Court summarily denied his subsequent petition for review , Wright filed the instant federal habeas petition to the district cour t below, which , adopting the magistrate judge’s report and recommendation, den ied the petition with prejudice

. The district court subsequently granted Wright’s request for a certificate of appealability as to his Wainwright claim only , and this appeal foll owed

. W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253. “We review de novo the district court’s denial of [Wright’s] habeas petition , and we review the district court ’ s findings of fact for clear error. ” Hurles v. Ryan , 752 F.3d 768, 777 (9th Cir. 201 4). Substantively, the applicable legal standards are supplied by Brecht v. Abrahamson , 507 U.S. 619 (1993) and 28 U.S.C. § 2254(d)

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

1 “ [A] prison er who seeks federal habeas corpus relief must satisfy Brecht , and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by [§ 2254(d)] .” Davis v. Ayala , 135 S. Ct. 2187, 2199 (2015 ). Accordingly, this Cou rt “need not formally apply” the § 2254(d) test in addition to the Brecht test, but does so here as § 2254(d) “sets forth a precondition to the grant3

that question because we find that, under either standard, Wright has more than
carried his burden.
Under Brecht , we find that the Wainwright error s during the sanity phase of
trial “ had substantial and injurious effect or influence in determining the jur y ’s
verdict. ” Brecht , 507 U.S. at 623 ( internal citation omitted). We consider the following three factors in carrying out the Brecht inquiry in the present context : “(1) the extent of the comments, (2) whether an inference of [sanity] from silence

was str essed to the jury, and (3) the extent of other evidence suggesting the defendant’s [sanity].” Hurd v. Terhune , 619 F.3d 1080, 1090 (9th Cir. 2010) (internal citation and alterations omitted) ; see also Brecht , 507 U.S. at 639

. The
first two factors very strongly favor granting the petition , because the prosecution’s case for sanity relied extensively on Wright’s invocation , referencing it on ten separate occasions during opening, examinations, and closing. A lthough the prosecut ion also used other evidence to suggest Wright’s sanity, they placed special emphasis on his invocation of his constitutional rights. For example, as noted, the prosecut or stressed to the jury during summation that Wright’s invocation “in and of itself, sh ows he knew the nature and consequences of what he was doing and he knew that what he had did [ sic ] was wrong.” As to the third factor, when it came to evidence of what was Wright’s state of mind at the time of
of habeas relief.” Id. at 2198 (internal citation and alterations omitted); see also Garcia v. Long , 808 F .3d 771, 782 (9th Cir. 2015).4

the commission of the crime

— which is the ulti mate issue

— almost none of the other evidence of Wright’s alleged sanity approached in temporal immediacy as the evidence of his invocation of his rights.
U nder 28 U.S.C. § 2254(d) , as amended by the Antiterrorism and Effective Death Penalty Act of 1996, we find that the California Court of Appeal 2 unreasonably applied clearly established federal law as determined by the U.S. Supreme Court and unreasonably determined facts in light of the evidence presented at trial. Indeed, t he state court appears to have labored under a material misimpression of what established federal law is in this area, stating at one point
that the “prosecution could lawfully impeach and rebut [defense expert] by presenting evidence establishing a different explanation for appellant’s lack of
communicatio n ”

— a position totally inconsistent with Wainwright

. Here, “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the U.S. Supreme Court’s] precedent s .” Harrington v. Richter , 562 U.S. 86, 102 (2011).
Furthermore , the state court made a grossly unreasonable determination of
material fact s when , ignoring the clear record , it refused to acknowledge that the prosecutor directly told the jury during summation that Wright’s invoca tion “ in and

2 The California Court of Appeal’s opinion which denied Wright’s claim on the merits

— rather than the California Supreme Court’s summary denial of the petition for review

— is the relevant state adjudication for purposes of § 225 4 review. See Berghuis v. Thompkins , 560 U.S. 370, 378

– 80 (2010).5

of itself ” was evidence of his sanity. Compounding its error, t he California court pointed instead to statements the prosecutor had made in his opening and, on that basis, wrongly accused the defense of misstating the record. Moreover, as disc ussed above, little of the State’s other evidence was probative of Wright’s state
of mind at the time of the offense. The state court’s complete failure to appreciate how Wright’s invocation of his constitutional rights was emphasized to the jury on

summat ion as sufficient proof of his sanity

— a flat violation of Wainwright

— and the lack of other evidence on which the jury’s sanity finding could be based serve to illustrate that the state court’s “ harmless error determination was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Sifuentes v. Brazelton , 825 F.3d 506, 535 (9th Cir. 2016) (internal q uotations and citation omitted). As for the report by the magistrate judge adopted by the district court, the magistrate judge clearly erred in recommending affirming the state court’s factual determination in this respect (among others). The magistrate j udge reframed this issue, in a puzzling manner, as whether the “in and of itself” statement was the prosecution’s direct argument or attribution to Dr. David Fennell’s opinion. This distinction is completely irrelevant because, under either scenario, it st ill is the case that the prosecutor was highlighting to the jury that Wright’s invocation in and of itself suggested his sanity.6

Because of these errors , the magistrate judge and the district court did not
reach the one issue that remains

— whether the failu re of defense counsel to object at trial to the prosecutor’s repeated Wainwright violations constitutes a procedural bar to his habeas petition or whether it is excused because of inadequacy of
counsel. 3 Accordingly, while we reverse the district court ’s denial of the petition with respect to the Wainwright claim on the merits , we remand the case to the district court for determination of the undecided procedural bar issue

. REVERSED AND REMANDED
.

3 In contrast, t he California Court of Appeal made its ruling based on both the procedural bar

— finding that Wright “did not object to the prosecutor’s remarks or questions and is precluded from claiming Doyle/Wainwright error on appeal”

— and the merits

.