David Schwendeman v. Arthur Wallenstein, Director, King County Jail

David Schwendeman appeals the denial of his habeas corpus petition filed under 28 U.S.C. § 2254 . He contends the Washington state court jury that convicted him of two counts of vehicular assault was erroneously instructed, in violation of the fourteenth amendment to the United States Constitution. The jury was instructed they could infer Schwendeman had driven in a reckless manner, the predicate act required for his assault convictions, solely from evidence that he was speeding. We hold that the challenged instruction was constitutionally deficient and the error in giving it may not be excused as harmless. We reverse with instructions to the district court to grant the writ unless within a reasonable time Schwendeman is afforded a new trial.

I

There was plenty of evidence to support Schwendeman’s conviction. At around 11:30 p.m., after having spent two hours with six companions at a local tavern drinking beer, playing pool and dancing, Schwendeman and his friends left the tav ern in his pickup truck. Schwendeman drove. Two of his passengers rode up front in the cab with him, and four rode in the back in the truck bed. By his own admission, Schwendeman drove 37 miles per hour in…