Brian Matthew Aust v. CHUCK SEELEY, Superintendent at WCCF

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN MATTHEW AUST,
Petitioner - Appellant,
v.
CHUCK SEELEY, Superintendent at
WCCF,
Respondent - Appellee.
No. 09-36075
D.C. No. 1:07-cv-01284-PA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted November 3, 2010
Portland, Oregon
Before: ALDISERT, W. FLETCHER and FISHER, Circuit Judges.**
Brian Matthew Aust petitions for habeas relief after being convicted of rape
and sentenced to 100 months imprisonment. His petition is subject to the
Antiterrorism and Effective Death Penalty Act. See Furman v. Wood, 190 F.3d
FILED
NOV 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1002, 1004 (9th Cir. 1999). The district court denied Aust’s petition. We reverse
and direct the district court to grant Aust’s petition because we conclude that Aust
received ineffective assistance of counsel.
Aust twice moved for mistrial based on the prosecutor’s references at trial to
Aust’s silence during a police interview after Aust was advised of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Aust argues the trial court’s denial of
his motion for mistrial was contrary to Doyle v. Ohio, 426 U.S. 610 (1976), and an
unreasonable application of Doyle, Michigan v. Mosley, 423 U.S. 96 (1975), and
Connecticut v. Barrett, 479 U.S. 523 (1987). Although we conclude that Aust
selectively invoked his right to remain silent, and therefore the prosecutor’s
comments were improper, we hold the trial court’s denial of Aust’s motion was
neither contrary to, nor an unreasonable application of, clearly established federal
law given the facts the trial court had before it at the time it made its decision. See
28 U.S.C. § 2254(d)(1).
If, however, the trial court had had the opportunity to review the transcript of
the police interview in question, Aust’s selective invocation of his right to remain
silent would have been plain. We presume the trial court would have followed the
law and disallowed the prosecutor’s comments. The court twice expressed to
counsel that it was at a disadvantage ruling on the motion for mistrial without

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having reviewed the transcript of the police interview. We conclude that Aust’s
attorney’s failure to provide the trial court with the transcript constituted deficient
performance under Strickland v. Washington, 466 U.S. 668, 687 (1984), and that
there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different, id. at 694. Because there was competing
evidence presented at trial, Aust’s credibility was of paramount importance. The
prosecutor’s repeated comments on Aust’s silence, which impugned Aust’s
credibility, were therefore highly prejudicial to his defense. Accordingly, the
district court’s denial of Aust’s habeas petition is REVERSED. We REMAND
to the district court with instructions to grant the petition.

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