Doe

Respondent Timothy E. Busby, the warden of Ironwood State Prison in California (collectively with the state prosecution, the State), appeals the district court’s order granting Petitioner John Doe a conditional writ of habeas corpus. The district court granted the writ on the ground that the California state jury which convicted Doe was improperly charged that it could find him guilty of murder and domestic violence so long as it found by a preponderance of the evidence that he had perpetrated prior unadjudicated acts of domestic violence. Following an evidentiary hearing to determine whether Doe’s Petition for a Writ of Habeas Corpus (the Petition) was timely, the magistrate judge concluded that it was and further concluded that a conditional writ should issue in light of the deficient jury instructions, the 1996 versions of California Jury Instructions, Criminal (CALJIC) Nos. 2.50.02 and 2.50.1. The district court made additional findings regarding Doe’s diligence in attempting to timely file the Petition, adopted the magistrate judge’s recommendation, and issued a conditional writ. The State appeals the district court’s determination that the Petition was timely and…