George Thomas FRANKLIN, Petitioner-Appellee, v. William DUNCAN, Warden, Respondent-Appellant

We affirm the district court’s grant of Franklin’s petition for writ of habeas corpus. We agree with the analysis and conclusions reached by the district court and hereby adopt the district court opinion which is reported Franklin v. Duncan, 884 F.Supp. 1435 (N.D.Cal.1995). We supplement the opinion of the district court by including verbatim the prejudicial closing argument of the state prosecutor and the verbatim jury instruction, both of which constituted prejudicial error in violation of Franklin’s Fifth Amendment right to remain silent. The prosecutor stated:

These prejudicial comments by the prosecutor were coupled with the following jury instruction:

The prosecutor’s comments regarding Franklin’s post-Miranda silence and the jury instruction regarding adoptive admissions in the context of the facts of this case had a substantial and injurious effect or influence on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619 , -, 113 S.Ct. 1710, 1714 , 123 L.Ed.2d 353 (1993). Therefore, Franklin’s petition for habeas corpus should be granted.

CONCLUSION

The judgement of the district court is AFFIRMED.