Bernard Lee Hamilton v. Daniel Vasquez, Warden of San Quentin the Attorney General of the State of California

17 F.3d 1149 Bernard Lee HAMILTON, Petitioner-Appellant, v. Daniel VASQUEZ, Warden of San Quentin; The Attorney General of the State of California, Respondents-Appellees. Nos. 91-56251, 91-56252, 91-56295, 91-56403, 91-80385 and 93-55039. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 15, 1992. Decided Feb. 3, 1994. As Amended on Denial of Rehearing; Suggestion for Rehearing En Banc Rejected March 22, 1994. Peter H. Benzian, Latham & Watkins, San Diego, California and Richard C. Camino, Tustin, California, for the petitioner-appellant. Pat Zaharopoulos, Assistant Attorney General, San Diego, California, for the respondents-appellees. Appeal from the United States District Court for the Southern District of California. Before: SCHROEDER, FLETCHER and TROTT, Circuit Judges. SCHROEDER, Circuit Judge: 1 Bernard Hamilton, a California state prisoner sentenced to death, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. The case arises from Hamilton's conviction in San Diego County Superior Court for first degree murder, burglary, robbery and kidnapping in violation of Cal.Penal Code Secs. 187, 459, 211, 207, and his sentence to…

Bernard Hamilton, a California state prisoner sentenced to death, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. The case arises from Hamilton’s conviction in San Diego County Superior Court for first degree murder, burglary, robbery and kidnapping in violation of Cal.Penal Code §§ 187, 459, 211, 207, and his sentence *1152 to death. He also appeals from the denial of his Rule 60(b) motion asking the district court to consider, as part of his original petition for habeas relief, claims that he had failed to exhaust during the pendency of the habeas petition. We affirm the district court’s denial of the Rule 60(b) motion and the denial of relief on the merits on those claims going to the validity of the underlying convictions. We hold that Hamilton is entitled to relief only with respect to the penalty phase of the state court proceedings, because on the basis of the confusing instruction given, the jury could not have made a reasoned and informed choice between a death sentence and a life sentence without possibility of parole.

The factual circumstances of this case are set out at length in People v. Hamilton, 41 Cal.3d 408 , 221 Cal.Rptr. 902 , 710…

concurring and dissenting.

“On May 31, 1979, about 1 p.m., the body of Eleanore Frances Buchanan was discovered in the grass near a cul-de-sac off Pine Valley Road, near San Diego. Harry Piper noticed it while walking back to his car from target shooting. The body had no head or hands and was clothed only in a bra, underpants, and socks. ... Terry Buchanan, the victim’s husband, testified that his wife had given birth to a baby boy three weeks before her death and that she was still nursing him on May 30, 1979.” People v. Hamilton, 45 Cal.3d 351, 357-58 , 247 Cal.Rptr. 31 , 753 P.2d 1109 (1988).

For this kidnapping and killing during which Bernard Lee Hamilton brutally took Eleanore Buchanan’s life, Terry Buchanan’s wife, and their son’s mother, Hamilton has been convicted of murder and sentenced to death. I am unable to identify any Constitutional infirmity either in his conviction or his sentence.

I

The Supreme Court has validated the practice of inviting jurors in the penalty phase of a state death penalty case to consider in their deliberations that a sentence of life without possibility of parole is really a sentence of life with possibility of commutation. California v.…