Billy Gwinn Burkheart v. Frank A. Eyman, Warden, Arizona State Prison

This is an appeal from an order of the United States District Court denying petitioner’s application for a writ of ha-beas corpus.

Petitioner had been convicted of second degree murder in a bifurcated trial as provided by the Arizona statute then in force. Ariz.Rev.Stat. § 13-1621.01. Later that statute was held to be unconstitutional, State v. Shaw, 106 Ariz. 103 , 471 P.2d 715 (1970), but the uneonstitu-tionality was prospective only. State ex rel. Berger v. Superior Court, 106 Ariz. 365 , 476 P.2d 666 (1970).

Burkheart argues that the failure to apply the decision in Shaw retroactively so that his trial would be invalidated raises a substantial federal question. State v. Burkheart, 106 Ariz. 490 , 478 P.2d 515 (1970). This is so because premeditation and malice aforethought are constituent elements of murder, and a reservation of investigation of mental condition to a second trial, separated from the guilt-finding trial, deprives a defendant of the right to have the jury pass upon criminal intent. Therefore, he asserts he has been denied federal due process.

This circuit in Benson v. Carter, 396 F.2d 319 (9th Cir. 1968), cert. denied, 393 U.S. 1080 , 89 S.Ct. 852 , 21…