There is an extremely high standard of review for jury instruction error in federal habeas petitions from state court judgments. Thus, even if a jury instruction issue is rejected on federal habeas the issue may still be raised in other state court trials. (See e.g., Smith v. Ryan [excerpt after the jump].)
Smith v. Ryan, (D. Ariz., No. CV-03-1810-PHX-SRB, Dec. 3, 2009)
An allegedly improper jury instruction will merit habeas relief only if "the instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991); see Jeffries v. Blodgett, 5 F.3d 1180, 1195 (9th Cir. 1993). The instruction "'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). It is not sufficient for a petitioner to show that the instruction is erroneous; instead, he must establish that there is a reasonable likelihood that the jury applied the instruction in a manner that violated a constitutional right. Id.; Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992) (en banc). "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
