Appeal from the Judgment Entered in the United States District Court for the Eastern District of Wisconsin. No. 84-C-1241 -- Terence T. Evans, Judge.
Before BAUER, WOOD, and ESCHBACH, Circuit Judges.
Lennon Williford appeals the denial by the district court of his petition for writ of habeas corpus. Williford was convicted in the Circuit Court of Racine County, Wisconsin of murder in the first degree and sentenced to life imprisonment. Williford petitioned the United States District Court for the Eastern District of Wisconsin for a writ of habeas corpus. That court denied the petition. Williford argues that the district court had three grounds upon which to grant his petition but erroneously failed to do so. Specifically Williford argues (1) that the failure of the Wisconsin trial court to instruct the jury on the lesser included offense of manslaughter (killing in the heat-of-passion) denied Williford due process of law, (2) that his attorney's incompetence denied Williford his Sixth and Fourteenth Amendment right to the effective assistance of counsel, and (3) that the jury instruction given at trial on the defense of intoxication shifted the burden of persuasion on the issue of state of mind to Williford and thereby denied him due process. We reject Williford's arguments and affirm the district court's denial of the petition.
Williford contends that the Wisconsin trial court denied him due process of law by failing to instruct the jury on the lesser included offense of manslaughter (killing in the heat-of-passion). We disagree.
The test in these circumstances is clearly established.
The failure to instruct on a lesser included offense, even if incorrect under state law, does not warrant setting aside a state conviction unless "failure to give the instruction could be said to have amounted to a fundamental miscarriage of justice."
Nichols v. Gagnon, 710 F.2d 1267 (7th Cir. 1983) (citation omitted). Examination of the law and evidence reveals that Williford cannot satisfy this test.
Williford cites no cases in which failure to instruct the jury as to a lesser included offense in similar circumstances was found to be a denial of due process. This court's own research has similarly found no such case.
Further, as the district court noted, there virtually no evidence to support an instruction on heat-of-passion. The evidence showed that Williford and his wife had a stormy marriage, were separated, and were in the midst of divorce proceedings. After "drinking quite heavy" [sic], Williford went to his wife's home at some time after 1:00 a.m. on November 25, 1978 and asked to speak with his daughter, Wanda, who was staying there. Wanda, who had been asleep, was too tired to talk and went back to sleep on a couch in the living room. She testified that all was calm when she fell back asleep. She further testified that she awoke to the sound of gun shots and then went to the kitchen where Williford had fatally shot his wife. The only account of what transpired between the time that Wanda fell asleep and the shooting is Williford's own testimony. He testified generally that he and his wife sat down in the kitchen to talk, that, although he did not yell at her, she yelled at him (but "no real loud"), and that she eventually pulled a gun from her purse and threatened him with it. The most specific details that Williford could remember were related in two short answers:
A. That's when she started using the profane language, calling me old, stupid and said she was getting married and said that she was going to marry her a young man soon and I said it does not matter to me what you do as long as you don't bother me. That's when she said, I am going to blow your brains out and by that time that's when she pulled the gun and we started tussling.
A. Well, I don't know. I come to myself when I was standing in the door and Wanda was hitting me on the shoulders ...