Gollehon

MEMORANDUM *

William Gollehon (“Gollehon”), convicted in Montana state court in 1991 of deliberate homicide by accountability in the death of another prison inmate, 1 appeals the district court’s denial of his petition for habeas corpus. We affirm in part, reverse in part, and remand for further proceedings.

I. Death-Qualification of Jury (Habeas Claim 1)

Gollehon argues that the Montana state court violated his rights under the Sixth and Fourteenth Amendments by permitting the prosecutor to “death qualify” the jury even though the jury, at that time, had no role in fixing the death penalty. However, the exclusion of conscientious jurors does not create a panel that lacks a fair cross-section or is improperly slanted in favor of conviction. Lockhart v. McCree, 476 U.S. 162, 174-84 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986); Buchanan v. Kentucky, 483 U.S. 402, 415-20 , 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987); see also Furman v. Wood, 190 F.3d 1002, 1004-05 (9th Cir.1999) (on habeas, no deprivation of due process when a defendant who was not actually eligible for the death penalty was tried by a death-qualified jury).

Gollehon also argues he was deprived of due process because…