Thompson

Arthur Calderon, as warden and on behalf of the State of California, hereinafter the “State,” appeals the district court’s partial grant of Thomas Martin Thompson’s petition for a writ of habeas corpus. The district court’s judgment set aside Thompson’s 1983 conviction in California state court for the rape of Ginger Fleischli. Thompson appeals the district court’s partial denial of the petition challenging his state court conviction for Fleisehli’s murder and imposition of a sentence of death. The district court had jurisdiction under 28 U.S.C. § 2254 . We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We reverse the partial grant of Thompson’s petition as to the rape charge. We affirm the district court’s partial denial of Thompson’s petition as to the murder conviction and penalty phase.

I

The evidence, both oral and physical, considered in the state trial court, the decisions made in state appellate proceedings and the matters considered in federal district court are reflected in the record before us.

A.

The state court trial record reveals the evidence presented for and against Thompson.

A California state court jury returned guilty verdicts against Thompson…