Glenn Ruphert Gibson v. James Spalding, Slade Gorton and Dixie Lee Ray

Spalding, et al. (the State), appeal from an order of the district court granting a writ of habeas corpus to Gibson pursuant to 28 U.S.C. § 2254 . The State contends that Gibson’s failure to object to a constitutionally infirm jury instruction during trial or on direct appeal prevented the district judge from granting this collateral relief. We disagree and affirm.

I

On May 29, 1974, a jury found Gibson guilty of murder in .the second degree resulting from the death of a female hitchhiker. Gibson appealed his conviction on grounds other than the one asserted in his petition for writ of habeas corpus. The Washington State Court of Appeals affirmed his conviction in an unpublished opinion on June 9,1975. On that same day, the United States Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 308 (1975) (Mullaney), in which the Court held that a jury instruction requiring malice aforethought to be presumed from an intentional homicide unless the defendant proved that he acted in the heat of passion on sudden provocation violated the due process clause of the Fourteenth Amendment. The Court found that such an instruction improperly shifted the burden…