James E. Nyhan v. Peggy L. Kernan, Warden

56 F.3d 72 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. James E. NYHAN, Plaintiff-Appellee, v. Peggy L. KERNAN, Warden, Defendant-Appellant. No. 94-16192. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 12, 1995. Decided June 2, 1995. Appeal from the United States District Court for the Northern District of California, No. CV-92-03769-MHP; Marilyn H. Patel, District Judge, Presiding. N.D.Cal., REVERSED. Before: CUMMINGS, * SCHROEDER, and RYMER, Circuit Judges. 1 MEMORANDUM ** 2 California state prisoner James Edward Nyhan petitioned the district court pursuant to 28 U.S.C. Sec. 2254 , challenging his conviction for second degree murder. He contended that the state court proceeding violated his due process rights because the trial court failed, sua sponte, to instruct the jury on an element of murder. The district court granted the petition and the state appeals. On appeal, the state correctly contends that the trial court did not fail to instruct…