James A. Bush v. L. v. Stephenson Rae H. McNamara , 826 F.2d 1059 ( 1987 )

826 F.2d 1059
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
James A. BUSH, Plaintiff-Appellee,
v.
L. V. STEPHENSON; Rae H. McNamara, Defendant-Appellant.

No. 86-7670

United States Court of Appeals, Fourth Circuit.

Argued March 4, 1987.
Decided Aug. 11, 1987.

Richard Norwood League, Special Deputy, Attorney General (Lacy H. Thornburg, Attorney General of North Carolina, on brief), for appellant.

Richard Alan Rosen, Director Clinical Programs University of North Carolina School of Law, for appellee.

Before WIDENER, and CHAPMAN, Circuit Judges, and TIMBERS, Circuit Judge for the Second Circuit, sitting by designation.

PER CURIAM:

1

This is an appeal from the district court's issuance of a writ of habeas corpus upon petition of James A. Bush, who was convicted of first degree murder in the state courts of North Carolina. Bush killed his victim with a knife. The state trial judge in explaining the essential elements of the crime of first degree murder in North Carolina charged the jury on the issue of malice: 'It may be shown by evidence of hatred, ill will or dislike and it is implied in law from the intentionally (sic) killing with a deadly weapon.' In a very detailed and scholarly sixty page order the District Court found that the state trial judge's jury instruction resulted in an unconstitutional shifting of the burden of proof on the issue of malice to Bush in violation of Mullaney v. Wilbur, 421 U.S. 684 (1975) and Sandstrom v. Montana, 442 U.S. 510 (1979). The order of the district court exhaustively reviewed the facts of the case and concluded that this shifting of the burden of proof was not harmless error under Rose v. Clark, ---- U. S. ---- (1986).

2

After careful consideration of the record, the briefs and the arguments we conclude that the issuance of the writ by the district court was proper and we affirm for the reasons set forth in the order of the district court.

3

AFFIRMED.