Sally Marie McNEIL, Petitioner-Appellant, v. Raymond L. MIDDLETON; Bill Lockyer, Respondents-Appellees, 402 F.3d 920

Opinion by Judge FERNANDEZ. Dissenting Opinion by Judge PAEZ. FERNANDEZ, Circuit Judge: We fully outlined the background of this case in our first opinion, and will not repeat all of its shocking details here. Suffice it to say that McNeil took a shotgun and fired it into the midsection of her husband while he was cooking. Not feeling that she had done enough damage, she then reloaded the weapon and shot him in the face. The first shot caused so much damage that his liver was protruding out of his skin; the second blew away much of the lower portion of his face. He died.

McNeil, who was, herself, an aggressive and violent person, asserted that she suffered from the effects of Battered Women’s Syndrome (“BWS”) and that, therefore, she had shotgunned her victim in

an act of perfect self-defense. At the very least, she said, her actions were an instance of imperfect self-defense, which would make her guilty of voluntary manslaughter at worst. Each of those defenses requires that a woman have an actual belief in the need to defend herself. They differ in that perfect self-defense requires that the belief be reasonable, whereas for imperfect self-defense the belief must be unreasonable.

The trial judge correctly instructed the jury that BWS could be considered on the issue of McNeil’s actual belief, but incorrectly instructed that it could not be considered in testing reasonableness for perfect self-defense purposes. The jury could consider BWS for the purpose of deciding if there was an unreasonable belief for imperfect self-defense purposes. The jury specifically found that McNeil was guilty of second degree murder and that she was not guilty of voluntary manslaughter. When this case was previously before us, we determined that the writ should issue.

We said that if the jury followed the instructions literally, it could have rejected imperfect self-defense because McNeil did not behave as a reasonable person in reacting as she did. See McNeil I, 344 F.3d at 997. In other words, she could not show that her crime was voluntary manslaughter, rather than murder. Id. Thus, even though BWS evidence could be considered, it did her little good because if, due to BWS, her perceptions were other than that of a reasonable person, she could not demonstrate that her actions resulted in voluntary manslaughter at most.

The Supreme Court reversed because it did not agree with us. See Middleton v. McNeil, 541 U.S. 433, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam) (McNeil II). In its view, we had expected too much legal sophistication (even scholasticism) on the part of jurors. Id. at -, 124 S.Ct. at 1833.

As the Court put it: Perhaps the Ninth Circuit reasoned that the erroneous definition of “imminent peril” caused the jury to believe that the earlier, correct instructions (“actual but unreasonable belief in the necessity to defend against imminent peril”) meant that, although the belief in the necessity to defend may be unreasonable, the belief in the existence of the “imminent peril” may not. This

interpretation would require such a rare combination of extremely refined lawyerly parsing of an instruction, and extremely gullible acceptance of a result that makes no conceivable sense, that the state court’s implicit rejection of the possibility was surely not an unreasonable application of federal law. Id. (emphasis in original). Were we now to order issuance of the writ, we would fall into that same pit by assuming that the jurors took too much notice of legal niceties as they fossicked for meaning in the bosk created by the trial court’s instructions. Let us explain.

Despite the legal technicalities of the instructions, the Supreme Court has told us in no uncertain terms that we must assume that the jury would not fall prey to those technicalities. It is apparent that the only nontechnical way that the jury could find McNeil guilty of second degree murder but not guilty of voluntary manslaughter would be if she failed to have an actual belief in the need for self-defense.

Otherwise, the jury would have had to say something like this to itself: “Considering the BWS evidence, we think that McNeil is not guilty of voluntary manslaughter because she had an actual, but reasonable, belief in the need for self-defense, and, therefore, her self-defense was not of the imperfect variety.

However, when we come to second degree murder, where we cannot use BWS evidence for the purpose of deciding the question of reasonable belief, we find that she cannot establish perfect self-defense because she had an actual, but unreasonable, belief in the need for self-defense.” There may not be an intellectual or logical disconnect in that form of reasoning, but the Supreme Court has told us that, while the legal mind might be that daedali-an (or would it say “banausic”), no jury would be.

That is, no jury would consent to allow itself to be intellectually manipulated into convicting a person of second degree murder and acquitting her of voluntary manslaughter because it found her belief in the need for self-defense reasonable in the latter case but unreasonable in the former. Even if it would be rational for a juror to think that way and wind up convicting McNeil of a greater offense, it would bespeak, as the Court has put it, too much lawyerly refinement and too much gullibility. Id.

What we are left with is the only common ground between the two defenses— lack of an “actual belief’ in the need for self-defense. If the jury found that, she would not be entitled to either perfect or imperfect self-defense and, thus, would not be guilty of voluntary manslaughter, but must be guilty of second degree murder. Or, at the very least, the state courts’ decisions that the jury must have so determined was “surely not an unreasonable application of federal law.” Id.; see also 28 U.S.C. § 2254(d)(1).

In other words, the state courts could properly hold that McNeil’s lack of an actual belief in the need for self-defense made the instructional errors regarding reasonableness nonprejudicial. Were we to hold otherwise, our former “error” would become recrudescent. CONCLUSION Because we cannot say that the state courts unreasonably applied federal law when they upheld McNeil’s conviction, the writ of habeas corpus cannot issue. AFFIRMED. . McNeil V. Middleton, 344 F.3d 988, 991-94 (9th Cir.2003) (McNeil I), rev’d 541 U.S. 433, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam). .

We will not inquire into whether the jury erred in deciding both issues. That would be improper. See Stow v. Murashige, 389 F.3d 880, 883 (9th Cir.2004). .Due to a BWS instructional error, McNeil was already deprived of the use of that concept for the perfect self-defense purpose of deciding whether her belief was reasonable. We held that the error regarding voluntary manslaughter took away imperfect self-defense as well, and left her exposed to the full force of the other evidence. . It is noteworthy that the jury could consider BWS when it ruminated upon the actual-belief issue.