NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP L. WRIGHT,

Petitioner - Appellant, 

 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, 2020

Pasadena, California

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

Judge.

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

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

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

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

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

FILED

JAN 30 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

the state court criminal trial of petitioner Phillip L. Wright, going so far as to argue 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1

“[A] prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if 

the state court adjudicated his claim on the merits, the Brecht test subsumes the 

limitations imposed by [§ 2254(d)].” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015). 

Accordingly, this Court “need not formally apply” the § 2254(d) test in addition to 

the Brecht test, but does so here as § 2254(d) “sets forth a precondition to the grant 
3 

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

carried his burden. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of habeas relief.” Id. at 2198 (internal citation and alterations omitted); see also

Garcia v. Long, 808 F.3d 771, 782 (9th Cir. 2015).
4 

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

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

the evidence of his invocation of his rights.

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

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

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

Supreme Court and unreasonably determined facts in light of the evidence 

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

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

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

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

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

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

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

U.S. 86, 102 (2011). 

Furthermore, the state court made a grossly unreasonable determination of 

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

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

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

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

for review—is the relevant state adjudication for purposes of § 2254 review. See 

Berghuis v. Thompkins, 560 U.S. 370, 378–80 (2010). 
5 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

itself suggested his sanity.
6 

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

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

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

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

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

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

district court for determination of the undecided procedural bar issue.

REVERSED AND REMANDED.

3

In contrast, the California Court of Appeal made its ruling based on both the 

procedural bar—finding that Wright “did not object to the prosecutor’s remarks or 

questions and is precluded from claiming Doyle/Wainwright error on appeal”—and 

the merits.