Belmontes

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

OPINION

In this pre-AEDPA death penalty case, Petitioner Fernando Belmontes, Jr., ap *1032 peals the district court’s denial of his petition for writ of habeas corpus. Because the jury was not instructed that it must consider Belmontes’ principal mitigation evidence, which tended to show that he would adapt well to prison and would likely become a constructive member of society if incarcerated for life without possibility of parole, and because there is a reasonable probability that the instructional error affected the jury’s decision to impose the death penalty on Belmontes, we grant the petition with respect to the penalty phase. We reject, however, those claims that seek relief from the judgment of conviction and the finding of special circumstances. Accordingly, we affirm the district court’s decision in part, reverse in part, and remand with instructions to issue a writ vacating the death sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime, Its Investigation, and Pretrial Proceedings

On the morning of Sunday, March 15, 1981, 19-year-old Steacy McConnell telephoned her parents…

concurring in part and dissenting in part:

The court properly affirms Judge Levi’s determination that there was no constitutional error in Belmontes’s convictions for first degree murder with special circumstances in state court. I am pleased to concur in its conclusions as to the guilt phase. Regrettably, as to the penalty phase, the majority strains mightily — and unpersuasively- — to perceive constitutional error in the comprehensive and perfectly proper jury instructions given by the state trial judge. ■ Because there simply is no such error, and the Supreme Court has expressly told us so, I must respectfully dissent from the court’s grant of the writ with respect to the penalty phase.

Just over a decade ago, the Supreme Court in Boyde v. California, 494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990), interpreted the same jury instruction at issue today, “factor (k),” and concluded that it was constitutionally sound. The Court held that there was no “reasonable likelihood that the jury ... applied [factor (k)] in a way that prevent[ed] the consideration of constitutionally relevant evidence.” Id. at 380 , 110 S.Ct. 1190 . Nonetheless, the majority manages to distinguish…