Joe Henry McMillan v. Al Gomez, Warden of Deuel Vocational Institute

Joe Henry McMillan, a California state prisoner, brought a petition for habeas corpus in the federal district court, which denied it. He appeals. We affirm the denial of the writ.

FACTS AND PRIOR PROCEEDINGS

McMillan was convicted in 1981 of committing a murder in the course of an attempted robbery in violation of California Penal Code § 187 and was sentenced to 25 years to life. The evidence against him was as follows:

On May 15, 1979 at about 8:30 in the evening, Thomas Kerber, a clerk at Dorsey’s Liquor Store in Fresno, California, was shot to death at the cash register of the store. He had been killed by two bullets, one which passed through his heart and right lung and lodged in his back, causing him to fall. The second had entered his left armpit and was consistent with having been fired from above as he lay on the floor. His own gun was found under his body. On the counter was a single 16-ounce can of Budweiser, bagged in a white bag. The price of the beer, 45 cents, had been rung up on the register. The can was still cold to the touch when the police arrived after the shooting, and a small amount of condensation remained on it. The can was examined for fingerprints.…