Mark Owen McGuire v. Wayne Estelle, Warden

ORDER

The opinion filed May 8, 1989, 873 F.2d 1323 , is withdrawn and is vacated.

SO ORDERED.

Mark McGuire (“McGuire”) appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (a). McGuire was convicted of second degree murder and is now serving a fifteen year to life sentence in a California state prison. McGuire contends that the admission of evidence of prior acts against him at his trial, coupled with an instruction that permitted the jury to consider those prior acts as evidence of his guilt of the crime charged, were errors that denied him due process of law under the Fourteenth Amendment. We find that his contention has merit and REVERSE.

FACTS AND PROCEEDINGS BELOW

Because a proper consideration of McGuire’s due process claim requires weighing the prejudice to him of the error he alleges, we examine the trial testimony in some detail.

At about 9:00 p.m., on July 7, 1981, McGuire and his wife brought their six month old baby girl to the emergency room of a hospital in Hayward, California. The baby was bluish in color and was not breathing. The hospital staff were unable to save the baby and she was pronounced dead at…