Shannon v. Newland
No. 03-16833 (6-8-05). The petitioner knew there was a problem with the state jury instructions. The instruction for voluntary manslaughter required an intent to kill that could be negated by heat of passion, but what about a "reckless act" in second degree murder that was triggered by heat of passion? Shouldn't manslaughter have a provision that heat of passion could provoke recklessness? In this case, petitioner had an argument with his girlfriend, and then, well, shots were fired and he was convicted of murder and got 15 to life. He argued on appeal that the instruction was wrong. The California court of appeals denied his appeal, and he let it go. Well, three years later, the state supreme court found that the instruction was in error. Poor petitioner, he can't get his day in court. The 9th affirms the dismissal because he was out of time, and there was no new triggering of AEDPA's one year statute. Galling.