Lockridge

MEMORANDUM **

Appellee Bryan Loekridge was granted habeas relief by the district court pursuant to its determination that the state court’s refusal to instruct the jury on self-defense violated Lockridge’s constitutional rights. The state appeals. We affirm.

I.

Loekridge was convicted by a jury of the attempted murder of a police officer. At trial, Loekridge testified that he was fired upon while he had his hands raised in the air, trying to surrender to two police officers. Loekridge also presented two witnesses who testified that they saw Lock-ridge with his hands in the air before shots were fired. The trial judge declined to instruct the jury as to the law of self-defense, however.

The jury was absorbed by the question of whether Loekridge or the officers fired first. During their deliberations, they sent a note to the judge asking, “If we believe Bryan Loekridge did not shoot first can we still find him guilty of attempted murder???” At this point, Loekridge again requested an instruction on self-defense, and the trial judge again declined to provide it.

*551 II.

A district court’s decision to grant or deny a 28 U.S.C. § 2254 habeas petition is reviewed de novo. Leavitt…

dissenting:

The police officers testified that they fired at Lockridge when he suddenly turned and pointed a gun at them. The passers-by testified that they did not see whatever precipitated the shooting. And Lockridge himself testified that he never aimed at or shot at the officers at all, in self-defense or otherwise. On this record, the state court ruled, as a matter of state law, 1 that the evidence of self-defense was too slight to warrant a self-defense instruction. I am hard-pressed to see how this ruling was even erroneous, much less an unreasonable application of, or contrary to, federal law as determined by the United States Supreme Court.

The majority’s reliance on Mathews v. United States, 485 U.S. 58 , 108 S.Ct. 883 , *552 99 L.Ed.2d 54 (1988) is terribly mistaken. Mathews is not a constitutional case. In fact, the constitution is not even mentioned in Mathews , except to acknowledge that the entrapment defense is “not of ‘constitutional dimension.’ ” Id. at 66 , 108 S.Ct. 883 (quoting United States v. Russell, 411 U.S. 423, 433 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973)). Mathews was a direct appeal interpreting the federal law of entrapment. The question was whether…