Damian

MEMORANDUM **

Marco Damian appeals the district court’s denial of his habeas petition. We affirm in part, but reverse and remand for issuance of the writ with respect to his conviction for second degree murder.

In 1991, Damian was tried on six counts: one count of murder in the second degree, two counts of assault with a firearm, two counts of shooting at an inhabited dwelling, and one count of shooting at an unoccupied vehicle. Damian was at times a passenger in the car involved and at times *777 the driver, although it was agreed that he was not the person who fired the shots from the moving vehicle. At trial, Damian was found guilty, on an aiding and abetting or conspiracy theory, of second degree murder, of shooting at an unoccupied vehicle, and of one count of shooting at an inhabited dwelling. He was acquitted of the other count of shooting at an inhabited dwelling and of one count of assault; the other count of assault was reduced to a charge of brandishing a deadly weapon, and he was convicted of that lesser charge. His convictions were subsequently reversed due to the admission of an involuntary confession. Damian was retried in 1994, on the basis of a second amended…