join, dissenting from the denial of rehearing en banc:
I join Judge Kleinfeld’s dissent from the denial of rehearing en banc. I write separately to underscore that it was not an “unreasonable application of clearly established federal law” for the California Court of Appeal to deny habeas relief notwithstanding its determination that the wearing of victims’ photographs in a courtroom constitutes an “impermissible factor coming into play.”
The panel opinion suggests that, once the California Court of Appeal “specifically found ‘the wearing of photographs of victims in a courtroom to be an “impermissible factor coming into play,” ’ ” Musladin’s conviction could not stand. See Musladin v. Lamarque, 403 F.3d 1072, 1076 (9th Cir.2005) (panel’s emphasis). The rationale offered in support of this conclusion is that, “[ujnder Williams and Flynn,” the finding of an impermissible factor coming into play “in itself establishes ‘inherent prejudice’ and requires reversal.” Id.
The panel opinion misconstrues Williams and Flynn. In Williams, the Court established that putting a defendant on trial in prison garb is constitutional error of the variety amenable to harmless-error analysis. See Williams, 425 U.S. at 507-09, 96 S.Ct. 1691 (adopting the position of the Fifth Circuit that “the harmless-error doctrine is applicable to this line of cases”); 3B Charles Alan Wright et al., Federal Practice and Procedure § 855, at 477 & n. 8 (3d ed.2004). When the Court in Flynn “reaffirmed its holding in Williams,” see Musladin, 403 F.3d at 1075, it did not, of course, transform “courtroom arrangements challenged as inherently prejudicial” into structural errors, Flynn, 475 U.S. at 570, 106 S.Ct. 1340. Rather, Flynn suggested that, to obtain a conviction’s reversal, a defendant must show “actual prejudice” even after successfully demonstrating that the challenged courtroom arrangement was “inherently prejudicial.” See id. at 572, 106 S.Ct. 1340 (“[I]f the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” (emphasis added)). *653Under Flynn, in other words, it is possible to have a situation that is “inherently prejudicial” but not “so inherently prejudicial as to pose an unacceptable threat to [a] defendant’s right to a fair trial.” Id. (emphasis added).
Accordingly, it was a reasonable application of Supreme Court precedent for the California Court of Appeal to determine that, although in its view the wearing of victims’ photographs in a courtroom is inherently prejudicial, the button-wearing in this case did not actually deprive Musladin of his right to a fair trial.