Hessel

MEMORANDUM *

Brian Hessel appeals the district court’s dismissal of his habeas petition under 28 U.S.C. § 2254 . Hessel challenges his conviction for six counts of intentional murder and two counts of aggravated murder. Or. Rev.Stat. §§ 163.115(l)(a), 163.095. Because the parties are familiar with the facts, we do not recount them here. We affirm.

1. Hessel contends that the trial court’s failure to instruct the jury that extreme emotional disturbance (“EED”) was a defense to aggravated murder (1) violated his constitutional right to present a defense; (2) impermissibly shifted the burden of proof to the defense on an element of the crime; and (3) violated his entitlement, as a capital defendant, to jury instructions on a lesser included offense recognized by state law. Although Hessel refined the second and third arguments in the district court and in this court, he sufficiently presented all three claims in state court to avoid a procedural bar. We therefore proceed to the merits of these three related issues.

a. The EED instructions limiting consideration of the defense to intentional murder did not violate Hessel’s right to present a defense. Under Oregon law, EED is a…