*1 by hourly requested rate Milicev- and, not reasonable attorneys ic’s

thus, un- thought hours it were eliminated American Law

necessarily duplicative. Jastrem), (In re Stanley PC v.

Center

F.3d The evidence the conclusion that supports the record necessary not to have both Gellner for trial in case. Haley prepare this informed Gellner of its intent to

Mercedes

call as a witness advance of Gellner might he

trial. Once Gellner knew testify, the district court found

called to Haley could have turned over to

Gellner preparation. of trial a find-

the task Such

ing was well within the discretion of the Further,

district court. case was

overly complicated require any and did Last, court

special expertise. the district in reducing

was well within its discretion hourly upon rate and hours which Mili- attorneys’ request.

cevic based her fee

CONCLUSION reasons, foregoing

For the we affirm the judgment

district court’s and its award

attorneys’ fees.

AFFIRMED.

Sally McNEIL, Marie Petitioner-

Appellant,

Raymond MIDDLETON; L. Bill

Lockyer, Respondents-

Appellees.

No. 01-56565. Appeals,

United States Court of

Ninth Circuit.

March

921 fore, shotgunned she had her victim in an perfect act of At very self-defense. the least, said, she her actions were an in- self-defense, of imperfect stance which voluntary would make her man- slaughter at worst. Each of those defens- requires es that a an woman have actual in They the need to defend herself. in perfect requires differ self-defense reasonable, that the belief be for whereas imperfect self-defense the belief must be Jr., Wilton, NH, Khoury, R. for Charles unreasonable. petitioner-appellant. judge correctly The trial instructed the Robinson, Attorney Deputy P. Warren jury that BWS could be considered on the CA, General, Diego, respon- San for the belief, issue of McNeil’s actual but incor- dent-appellee. rectly instructed that it could not con- be testing

sidered in for per- reasonableness purposes. fect self-defense The could consider for purpose deciding BWS BEEZER, FERNANDEZ, and Before: if there was unreasonable belief for PAEZ, Judges. Circuit purposes. self-defense found that McNeil was by Judge Opinion FERNANDEZ. second murder and she was by Judge PAEZ. Dissenting Opinion voluntary manslaughter.2 FERNANDEZ, Judge: Circuit us, previously When this case was before fully background outlined the of this We we determined the writ should issue. opinion,1 in and will not case our first said that if the followed the in- We shocking all of its details here. repeat rejected literally, structions it could have say it to that McNeil took a shot- Suffice imperfect self-defense because McNeil did gun and fired it into the midsection of her not behave as a reasonable cooking. while he Not feel- husband I, McNeil reacting as she did. See enough damage, ing that she had done words, In F.3d at 997. other she could not him in weapon then reloaded the and shot voluntary that her crime was man- show caused so much the face. The first shot Thus, slaughter, rather than murder. Id. damage protruding that his liver was out skin; away blew much of could be con- though of his second even BWS evidence portion if, lower of his face. He died. sidered, good her little did BWS, other perceptions to her were due McNeil, was, herself, aggressive who person, she could than reasonable that she person, and violent asserted suf- actions resulted demonstrate her of Battered fered from effects Wom- (“BWS”) that, voluntary at most.3 manslaughter Syndrome en’s there- 988, Middleton, Murashige, improper. See 389 F.3d 991-94 Stow 1. McNeil V. (9th Cir.2003) (McNeil I), rev’d 541 U.S. (2004) (per 158 L.Ed.2d 701 curiam). error, to a BWS instructional McNeil 3.Due already deprived of the use of that con- inquire 2. We will not into whether the purpose of cept for deciding erred in both issues. That would if to have an slaughter reversed because it would be she failed Supreme actual belief in the need for self-defense. Middleton v. agree with us. See did not Otherwise, would have had McNeil, S.Ct. curiam) (McNeil (2004) something “Considering like this to itself: (per L.Ed.2d evidence, II). we think that McNeil is view, too the BWS expected we had In its *3 (even guilty voluntary manslaughter of be- not scholasti legal sophistication much reasonable, actual, at -, cism) cause she had an but jurors. part on the of Id. self-defense, and, in belief the need for put As the it: at 1833. S.Ct. therefore, her self-defense was not of the that Circuit reasoned Perhaps the Ninth However, imperfect variety. when we definition of “imminent the erroneous murder, degree come to second where we jury to that the peril” caused the believe purpose cannot use evidence for the BWS (“actual earlier, correct instructions but deciding question the of reasonable be- necessity in the to unreasonable belief lief, per- we find that she cannot establish peril”) meant against defend imminent fect self-defense because she had an actu- that, necessity the belief in the although unreasonable, al, but in the need for belief unreasonable, may the be- to defend be self-defense.” in the existence of the “imminent lief may interpretation not. This peril” may an logi- There not be intellectual or require would such a rare combination reasoning, cal disconnect in that form of extremely lawyerly parsing refined that, Supreme but the Court has told us instruction, extremely gullible an legal might while the mind be that daedali- a acceptance of result that makes no (or “banausic”), jury it no would sense, that the state court’s conceivable is, jury would be. That no would consent rejection implicit possibility of the was intellectually manipu- to allow itself to be surely application unreasonable convicting lated into of second of federal law. degree acquitting murder and her of vol- untary manslaughter it her found original). in (emphasis Id. Were we now in belief the need for self-defense reason- writ, of the fall to order issuance we would in the in able latter case but unreasonable pit by assuming into that that the same the if it former. Even would be rational jurors legal too much notice of nice- took juror way up for a to think that and wind they meaning ties as fossicked for in the offense, convicting greater McNeil of a by bosk created the trial court’s instruc- it, bespeak, put would as the Court has too explain. tions. Let us lawyerly much too much refinement and Despite legal technicalities of the gullibility. Id. instructions, Supreme Court has told only com- us no uncertain terms we must What we are left with is the prey ground that the would not fall to mon assume between two defenses— apparent those technicalities. It is lack of an “actual belief’ in the need for that, only way nontechnical self-defense.4 If the found guilty could find McNeil of second would not be entitled to either or and, thus, voluntary murder but not man- would deciding noteworthy whether her It is consider reasonable. could regarding voluntary We held that the error upon BWS when it ruminated the actual- manslaughter away imperfect took self-de- belief issue. well, exposed fense as and left her to the full force of the other evidence. establishing manslaughter, McNeil from the reasonable- voluntary but critical element of her ness of her belief—a degree murder. of second must be Thus, deprived the trial court defense. least, courts’ Or, the state very at the process right McNeil of her due to “be must have so deter- decisions meaningful opportunity pres- afforded a “surely not an unreasonable mined complete ent a defense.” v. Id.; see also of federal law.” application California Trombetta, 479, 485, 467 U.S. 2254(d)(1). words, In other § 28 U.S.C. (1984); 81 L.Ed.2d 413 see also properly could hold the state courts Mississippi, Chambers U.S. an actual belief lack of McNeil’s (1974); 35 L.Ed.2d 297 S.Ct. made the instruction- for self-defense need Texas, Washington reasonableness non- regarding al errors (1967); L.Ed.2d 1019 see S.Ct. otherwise, to hold Were we prejudicial. *4 Kuykendall, also DePetris v. 239 F.3d recru- former “error” would become our (9th Cir.2001) 1057, (recognizing 1062-63 descent. that of that the exclusion evidence “went to the heart of the defense” unconsti- was CONCLUSION Washing- tutional under Chambers and we cannot the state Because ton). unreasonably applied federal law courts concluding In that the instructional er conviction, the they upheld when McNeil’s harmless, ror was the California Court of cannot issue. corpus writ of habeas Appeal reasoned AFFIRMED. second-degree found McNeil mur der, it must have found that she lacked PAEZ, J., dissenting: in the need to act in self- actual belief respectfully I dissent. concluding, defense. In so the court relied view, my process right McNeil’s due on the fact that “[t]he In if McNeil had an actual complete defense was violated instructed present to act in incorrectly trial court instructed belief the need self-defense she when the People of murder.” v. jury that the evidence of Battered could not be (Cal. (BWS)1 McNeil, D026047, slip op. could not be No. at 11 Syndrome Women’s 1998). 18, jury was Ct.App. of her Jun. Yet the considered for the reasonableness instructed, or im explicitly not so either in the need for self-defense.2 Instead, clearly and plicitly. the murder McNeil’s sole defense to “killing that the of another Ray repeatedly shot in self- told charge was she justifiable and not person claim of in self defense is To establish a defense. self-defense, who does the had to show that her fear unlawful when she killing” had an actual and reasonable be imminent harm was both actual and Thus, the in the for self-defense. People Humphrey, 13 lief need reasonable. See convicted McNeil sec Cal.Rptr.2d 56 921 P.2d fact Cal.4th (1996). conclusively so, ond-degree murder does not heavily To do she relied on it found that lacked trial court’s erro- establish that the BWS evidence. The in the need for self-defense. limiting precluded instruction actual belief neous original opinion, we limited our 2. In our We detailed the substance of McNeil’s BWS analysis imperfect instruc- original opinion, to the in our see McNeil v. evidence 992-93, Middleton, (9th error. and did not reach this instructional tion McNeil, Cir.2003), F.3d at 995. repeat it See and I need not here. (1995); L.Ed.2d 947 Brecht v. Abraham majority agrees with the California son, conclusion that the U.S. Appeal’s (1993). I therefore that McNeil lacked an L.Ed.2d 353 would must have found reverse the district court’s denial of habeas actual the need for self-defense. belief in jury’s verdict of “not relief. It relies on the voluntary manslaughter

guilty” on the common denomi-

charge to show is among

nator these inconsistent verdicts lacked an actual belief in the

that McNeil majority’s rea-

need for self-defense. by returning a verdict

soning implies that voluntary manslaughter,

of “not guilty” jury actually meant that the Lusby Nancy TAYLOR; Chris A. is, McNeil apply self-defense did not —that Pepple-Gonsalves, Plaintiffs- charge qualify did not for this lesser be- Appellants, an actual belief in the cause she lacked need for self-defense. WESTLY, capacity in his as Steve Con any I place decline to confidence *5 California, troller of the State It jury’s voluntary manslaughter verdict. Defendant-Appellee. clearly inconsistent for the to find voluntary manslaugh- guilty McNeil not No. 02-16511. ter, yet second-degree murder. Appeals, United States Court of instructed not to Ninth Circuit. any

return other verdict forms if it found murder, degree McNeil not of first Argued and Submitted Oct. 2003. but of second murder. Al- Filed March though made a possible is simple mistake and intended to determine not apply, self-defense did jurors’

we cannot know the deliberations. Murashige,

See Stow simply cannot divine We jurors’ thought processes to construe among internal coherence the inconsis-

tent verdicts. centerpiece

Because the of McNeil’s de- evidence,

fense was the BWS the errone- effectively precluded

ous instruction

jury from finding that she acted in self- Ray.

defense when she shot and killed in “grave

record leaves me doubt” as to process

whether the denial of McNeil’s due

right present a meaningful defense had injurious”

a “substantial and effect on the McAninch,

jury’s verdict. See O’Neal