PG VII(D) Successes On Federal Habeas.
The fact that federal habeas review is a viable recourse for state litigants is demonstrated by instruction cases in which relief was granted. In Alvares v. Rowland (C-90-20664-WAI) relief was granted on ineffective assistance of counsel grounds. (See SDAP Newsletter, March-June 1992, pp. 3-4.) In Cramer v. Aisturo (CV-91-1030-JMI (JR)) the Central District federal court granted relief on a Farretta issue. Although these cases did not involve instructional error, an order to show cause was granted by the Northern District federal court in Juarez v. Rowland (C-91-20353 JW) in May 1992 on an instructional issue regarding concurrence of act and intent. Also an OSC was granted by the Eastern District of California in Caswell v. Calderon (CIV-S-91-1079 WBS) on the issue of constitutional error from the absence of a Beeman instruction on aiding and abetting. In Hollis v. Gomez (CIV-90-0904 GEB) the Eastern District Court held that refusal of defendant’s entrapment instruction required reversal per se. Hence, there is recourse for abridgement of federal constitutional rights including those associated with jury instructions and, therefore, it is important that these issues be preserved at trial and during the state appellate process. In Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, the court held, on federal habeas, that instruction upon felony murder in violation of the Ireland rule (People v. Ireland (69) 70 C2d 522, 539 [75 CR 188],) was reversible even though the erroneous legal theory was not argued by the prosecutor and the evidence of malice was “very strong.” A harmless error determination cannot be based on “the seemingly overwhelming weight of the evidence” pointing to guilt when it is impossible to tell which theory of culpability the jury followed in reaching a general verdict.