Kane

MEMORANDUM ***

Nathan McKinney petitions for review of the district court’s denial of his First Amended Petition for Writ of Habeas Corpus. McKinney was convicted in the California Superior Court of two counts of corporal injury to a spouse, Cal. Pen. Code § 273.5 (a), dissuading a witness, id. § 136.1(b)(1), terrorist threats, id. § 422, and attempted premeditated murder. Id. §§ 664, 187(a). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm in part, reverse in part, and remand for proceedings consistent with this disposition.

In his First Amended Petition, McKinney claimed that, by instructing the jury with CALJIC 2.50.025, which was given at his trial, the trial court lowered the burden of proof for conviction to preponderance of the evidence, rather than proof beyond a reasonable doubt, in violation of his Sixth and Fourteenth Amendment rights. The district court determined that the California Supreme Court had denied McKinney’s claim on an independent and adequate state ground, and that this raised a procedural bar to McKinney’s pursuit of his claim in federal court. McKinney and the State of California (the “State”) agree that McKinney exhausted…