Menendez

INTRODUCTION

In this consolidated appeal, Lyle and Erik Menendez appeal the district court’s denial of their petitions for habeas corpus. Pursuant to 28 U.S.C. § 2253 (c), we granted a certificate of appealability on five issues: (1) whether the admission of a tape-recorded session between Petitioners and their therapist violated Petitioners’ constitutional due process rights as elaborated in Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985); (2) whether the trial court’s decision not to instruct the jury on imperfect self-defense violated Petitioners’ rights to due process; (3) whether the exclusion of certain evidence violated Petitioners’ due process rights in that the trial court required that they first lay a foundation, which as a logical matter could only be done if they testified; (4) whether the exclusion of certain lay and expert testimony violated Petitioners’ due process rights and Sixth Amendment right to present a defense; and (5) whether Lyle’s due process rights were violated when the prosecutor commented on the lack of evidence regarding abuse and the lack of experts, both of which the prosecutor had successfully moved to exclude.

We…