Hershfeldt
Hershfeldt v. Herman
Opinion
Concurring Opinion
Kleinfeld, J.
concurring.
KLEINFELD, Circuit Judge.
Our affirmance is on a purely federal procedural ground. We do not reach the question of how Hershfeldt could be convicted of rape when Garcia solicited sex from him and Hershfeldt ceased any sex acts to which she objected whenever she told him to stop. Nor do we reach the question of whether it was error to deny him the opportunity to argue to the jury that, even if he was wrong about whether the woman who solicited him for sex consented to the sex they had, he was honestly and reasonably mistaken. The state courts, not this court, have the authority to decide these issues. The Anti-Terrorism and Effective Death Penalty Act prohibits us from considering Hershfeldt’s petition without proper exhaustion of his federal claims. We dismiss on the procedural ground of exhaustion, not on the merits.
. See Slack v. McDaniel, 529 U.S. 473, 486-87 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000).
Lead Opinion
MEMORANDUM ***
Following a jury trial, Peter Hershfeldt was convicted of rape. At trial and on direct appeal in the Arizona state courts, Hershfeldt argued sufficient evidence was introduced to entitle him to a mistake of fact jury instruction. Hershfeldt reasoned that such an instruction was appropriate because the victim had consented to the sex acts through her solicitation of prostitution and because he ceased engaging in any sex acts to which she objected whenever she asked him to stop. The Arizona Court of Appeals and Supreme Court affirmed his conviction.
Hershfeldt petitioned the District Court for the District of Arizona for a writ of habeas corpus claiming that the failure to give the mistake of fact jury instruction violated his federal constitutional rights. The district court held that Hershfeldt had exhausted his federal claims in the Arizona courts as required by the Anti-Terrorism and Effective Death Penalty Act, but rejected the petition on the merits. 1 Hershfeldt appeals. We review de novo a district court’s decision to grant or deny a state prisoner’s habeas petition.
On appeal, the State of Arizona argues that Hershfeldt didn’t exhaust his federal claim.…