Henry Arthur Drake v. Ralph Kemp, Warden

CLARK, Circuit Judge,

specially concurring:

I concur in section one of the majority opinion which holds that the instruction on intent at Drake’s trial improperly shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and that the Sandstrom error was not harmless.

I also concur in section two of the majority opinion which holds that Drake is entitled to a new sentencing hearing because of prosecutorial misconduct in closing argument at the penalty phase of Henry Drake’s trial.1 I write separately only to point out what I believe to…