Hanna

Opinion by Judge TASHIMA; Concurrence by Judge WRIGHT.

Petitioner-appellee Craig Mitchell Hanna (“Hanna”) was convicted of vehicular homicide and vehicular assault in King County, Washington, state court. The Supreme Court of Washington affirmed his conviction. State v. Hanna, 123 Wash.2d 704 , 871 P.2d 135 (1994), cert. denied, — U.S. -, 115 S.Ct. 299 , 130 L.Ed.2d 212 (1994). Hanna then filed this federal petition for a writ of habeas corpus. The district court determined that an instruction allowing the jury to infer reckless driving from excessive speeds was a “trial type” constitutional error. Moreover, the district court could not say that the error did not have a “substantial and injurious” influence on the verdict, and therefore granted the writ.

Respondents-appellants (the “state”) appeal. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the decision to grant a petition for habeas corpus, Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995), and we affirm.

FACTS AND PRIOR PROCEEDINGS

I. The Accident.

During the daylight hours of August 22, 1989, Hanna was driving his Mustang on a highway in south Seattle in a 55 mile per hour (“m.p.h.”) zone.…

concurring:

Under the facts of this case, I must concur in the majority opinion affirming the judgment below. There is little doubt that the jury instruction was constitutional error.

I write separately only to observe that our holding in this case and the opinion in Schwendeman v. Wallenstein, 971 F.2d 313, 316 (9th Cir.1992), must be limited to the records before the two panels. In neither case was the evidence so overwhelming as to convince us that the constitutionally deficient jury instruction was harmless error.

Had the evidence in the case before us been overwhelming, I would have found the error harmless.