Pensinger v. Chappell, No. 12-99006 & 13-99000 [June 2, 2015]
[pre-AEDPA habeas corpus petition]
The Court reviewed the California Supreme Court’s ruling on whether or not the Green instruction applies as a question of law reviewed de novo. The Court turned aside the state's argument that the claim was barred under Teague where the state failed numerous times to raise the issue and, therefore, Williams v. Calderon controls the decision in this case. Even though, the California Supreme Court has narrowed its Green decision this court continues to find Green “not mere state law nicety, for without this narrowing construction, the special circumstances would run afoul” of Furman and Gregg. Where the state court did not consider whether failure to given the instruction was harmless this court must conduct its “own harmless error analysis.” Under Brecht the missing instruction allowed the jury to convict only by finding the kidnapping was incidental to the murder invalidating the special circumstance finding and, therefore, making it not harmless error. The court further found, no ineffective assistance of counsel for failure to request a Green instruction where counsel’s defense, that Pensinger did not murder the victim, “did not comport with” the defense of independent felonious purpose.