Lawrence L. Shults v. Harol L. Whitley

Good Law
92 Daily Journal DAR 17219·982 F.2d 361·1992 WL 379336·1992 U.S. App. LEXIS 33351·92 Cal. Daily Op. Serv. 10240
United States Court of Appeals for the Ninth CircuitDecember 23, 199291-16900California928 words

Opinion

Opinion

Lawrence L. Shults appeals the district court’s denial of his petition for a writ of habeas corpus. Shults was convicted in Nevada state court of first degree murder and sentenced to life imprisonment without possibility of parole. Shults argues that his habeas petition should be granted because the district court refused to give his requested instruction that no inference be drawn from his failure to testify.

A district court’s decision whether to grant a writ of habeas corpus is reviewed de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). We have jurisdiction pursuant to 28 U.S.C. § 2253 and 28 U.S.C. § 1291 , and we affirm.

Shults did not testify at trial. He proposed the following jury instruction:

The trial court refused this instruction.

Shults argues that the Supreme Court’s decision in Carter v. Kentucky, 450 U.S. 288 , 101 S.Ct. 1112 , 67 L.Ed.2d 241 (1981), controls this case. In Carter , the Court held that a “no inference” instruction, when requested by a defendant, is required by the Fifth and Fourteenth Amendment right against self-incrimination. Id. at 305 , 101 S.Ct. at 1121 . However, the rule of Carter does not apply retroactively on collateral…

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