Sherman

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JUSTIN MITCHELL, Case No. 19-cv-04894-VC

Plaintiff,

ORDER DENYING PETITION AND

v. CERTIFICATE OF APPEALABILITY

STUART SHERMAN, Re: Dkt. No. 1 Defendant.

Mitchell’s habeas petition is denied. For the reasons given in the California Court of Appeal’s detailed and careful opinion on direct review, the failure-to-explain instruction does not violate due process as a categorical matter. And although it was error to give the instruction in the context of Mitchell’s trial, that error does not rise to the level of a due process violation. The Court of Appeal’s rejection of the due process claim was therefore neither contrary to nor an unreasonable application of clearly established federal law. The Court has reviewed the traverse, even though it was filed very late, and it does not change the analysis. With respect to the ineffective assistance of counsel claim, Mitchell is correct that counsel’s performance was deficient based on his failure to request the accomplice instruction. Counsel’s performance was also likely deficient based on his failure to intervene…