Dickey v. Lewis

859 F.2d 1365 Thurman DICKEY, Petitioner-Appellant/Cross-Appellee, v. Samuel LEWIS, Director, Arizona Department of Corrections; Attorney General of the State of Arizona, Respondents-Appellees/Cross-Appellants. Nos. 87-1930, 87-1961. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 16, 1987. Decided Oct. 20, 1988. D. Jesse Smith, Tucson, Ariz., for petitioner-appellant/cross-appellee. Bruce M. Ferg, Asst. Atty. Gen., Tucson, Ariz., for respondents-appellees/cross-appellants. Appeal from the United States District Court for the District of Arizona. Before GOODWIN, Chief Judge, CHOY and BEEZER, Circuit Judges. BEEZER, Circuit Judge: 1 Thurman Dickey ("Dickey") appeals from the district court's denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus, following conviction on first degree murder charges in Arizona. The district court found that the state trial court's jury instruction permitted the jury to presume "intent to kill" from Dickey's use of a deadly weapon. The district court concluded that the error was constitutional but, following Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986), harmless. The district court found…