Habeas corpus; 28 USC § 2254(d); The Antiterrorism & Effective Death Penalty Act (AEDPA); Denial of a jury instruction on “defense of others”; The Michigan Self Defense Act; Whether petitioner could prevail on mixed questions of law & fact; § 2254(d)(1) versus (2); Keahey v Marquis; Ineffective assistance of counsel; Prejudice; Prosecutorial misconduct

[This appeal was from the ED-MI.] The court held that the district court erred by granting habeas relief based on a failure to give the defense-of-others jury instruction because the claim was barred under the AEDPA. The claim presented “a mixed question of law and fact that falls under § 2254(d)(1), not under § 2254(d)(2)” and there was “no viable legal theory for relief under” § (d)(1). A state jury convicted petitioner-Mercer of second-degree murder, tampering with evidence, and third-degree arson as a principal under an aiding and abetting theory. She was tried with a codefendant. At the close of proofs, she requested a defense-of-others jury instruction on one of the two killings, which the state trial court denied. After unsuccessful post-conviction proceedings in state court, Mercer filed a petition for habeas corpus. The district court granted her relief on her jury-instruction claim under § 2254(d)(2) but denied relief on her other claims. The court held that the district court erred by granting habeas relief for the failure to give the defense-of-others instruction. It concluded that the sort of reasoning used by the Michigan Court of Appeals here “–applying a legal standard to a set of historical facts—presents a ‘mixed question’ of fact and law.” And the court has “held that, in the AEDPA context, that sort of ‘mixed question[] fall[s] within § 2254(d)(1) rather than § 2254(d)(2).’” Analyzing the issue under § 2254(d)(1), the court explained that Mercer had conceded that its decision in Keahey eliminated “‘§ 2254(d)(1) as a viable legal theory’ in her case.” The court found that “concession decides the issue[.]” In Keahey, it “concluded that the Supreme Court had never clearly established a constitutional right to a self-defense instruction; so, the defendant had no basis for habeas relief under § 2254(d)(1).” It also held there “that a state court’s failure to provide self-defense jury instructions cannot create an unreasonable application of federal law.” Thus, the court reversed the grant of habeas relief based on the jury instruction claim. It affirmed the denial of habeas relief based on her claims of ineffective assistance claim and prosecutorial misconduct.