Bernard Lee Hamilton v. Daniel Vasquez, Warden of San Quentin the Attorney General of the State of California

17 F.3d 1149

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 1994
• Docket: 91-56251, 91-56252, 91-56295, 91-56403, 91-80385 and 93-55039
• Status: Published

Opinions

SCHROEDER, Circuit Judge:

Bernard Hamilton, a California state prisoner sentenced to death, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. The case arises from Hamilton’s conviction in San Diego County Superior Court for first degree murder, burglary, robbery and kidnapping in violation of Cal.Penal Code §§ 187, 459, 211, 207, and his sentence to death. He also appeals from the denial of his Rule 60(b) motion asking the district court to consider, as part of his original petition for habeas relief, claims that he had failed to exhaust during the pendency of the habeas petition. We affirm the district court’s denial of the Rule 60(b) motion and the denial of relief on the merits on those claims going to the validity of the underlying convictions. We hold that Hamilton is entitled to relief only with respect to the penalty phase of the state court proceedings, because on the basis of the confusing instruction given, the jury could not have made a reasoned and informed choice between a death sentence and a life sentence without possibility of parole.

The factual circumstances of this case are set out at length in People v. Hamilton, 41 Cal.3d 408, 221 Cal.Rptr. 902, 710 P.2d 981 (1986), vacated, California v. Hamilton, 478 U.S. 1017, 106 S.Ct. 3328, 92 L.Ed.2d 734 (1986) (Hamilton I), and People v. Hamilton, 45 Cal.3d 351, 247 Cal.Rptr. 31, 753 P.2d 1109 (1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102 L.Ed.2d 1002 (1989) (Hamilton II). Hamilton’s convictions arise from the death of Eleanore Frances Buchanan. Mrs. Buchanan’s body was discovered near San Diego, California, on May 31, 1979. The body’s head and hands were missing. Two strings of white cord were tied to her ankles, blue fibers were stuck to her body and tie marks were present on her wrists. There were stab marks in her abdomen and evidence showed that her head and hands were removed by use of both a knife and a saw.

On the day of her disappearance, Mrs. Buchanan left her home driving the family’s blue van in order to attend class at Mesa College. Her husband testified that she was wearing tan Levis, a brown and beige shirt, and carrying a brown purse. Mrs. Buchanan attended class and was last seen alive at about 9:30 p.m. as she walked toward the school parking lot.

Bernard Hamilton was stopped while traveling in a blue van in Oklahoma on June 8, 1979. When the police checked the vehicle identification number, they learned that the van belonged to Mrs. Buchanan. Hamilton was arrested. During the preceding week, Hamilton had used the Buchanans’ credit cards to buy food, gas and other items, including a saw, a screwdriver and a set of wrenches, a butcher knife and twine. Blood on the floor of the van and blood on Hamilton’s shoe matched the blood type of the victim.

San Diego police interviewed Hamilton in Oklahoma on the day after his arrest. Hamilton waived his Miranda rights and told the police that he had traveled from San Diego with “Fran” (Mrs. Buchanan’s nickname) and “Spider,” Calvin Spencer. He said that Mrs. Buchanan had left her husband for Spider, and that the two departed for Louisiana, leaving Hamilton with the van and credit cards. Hamilton identified Mrs. Buchanan from a picture and stated that when he saw her she was wearing “light colored jeans and carrying a beige non-leather purse.”

At trial, the prosecution presented evidence that Hamilton had called Donna Hatch in Terrell, Texas on May 31, 1979 from his parents’ home in San Diego. He told Hatch that he would leave for Texas in a van when the gas station opened in the morning. Hamilton used the Buchanans’ credit card to buy gas between 4:45 a.m. and 10:15 a.m. on May 31, 1979. He also bought gas later in the day in El Centro, California and in Tucson, Arizona. Hamilton arrived in Terrell on June 1. Hatch’s testimony was that when the van arrived, it was dirty, and the arm of the driver’s chair, the mirror and the window on the passenger side were broken. Hatch stated that she saw credit cards in the names of Terry and Eleanore Buchanan in the van. Hatch also testified that she heard Hamilton call his brother and tell him that he had flown to Texas. Hamilton told Donna that he “thought he had killed a man but he did not want to tell her any details because she might not want to have anything to do with him if he told her.” Hamilton I, 221 Cal.Rptr. at 905, 710 P.2d at 984.

At trial an inmate at the San Diego jail, Steven Thomas, testified that he had spoken with Hamilton, who said “well I did it but they’ll never prove it.” Id. at 906, 710 P.2d at 985. When Hamilton was transported to the courtroom on August 21, 1979, he apparently told Sheriff Parsons: “alright, you have your fun, I’ll have mine later.” The Deputy responded, “I thought you already had your fun.” Hamilton responded, “Yea, and I’ll kill a lot more, too, and you may be first on my list.” Id at 906, 710 P.2d at 985.

Hamilton testified at trial that he had never seen the victim. He stated that he found the van parked on a street between 12:45 and 1:00 a.m. on May 31. The keys were in the ignition and he drove the van home, called Hatch and left for Texas later that morning. He testified that he invented the story about spending time with Spider and Fran so that he would not be charged with theft of the van. He denied the threats to Donna Hatch. He explained that he bought the saw and other knives in order to rob a store in Texas.

Hamilton was convicted of first degree murder, burglary, robbery and kidnapping. He was sentenced to death on March 2,1981. The California Supreme Court, on appeal, affirmed the conviction as to Hamilton’s guilt but reversed his death sentence. See People v. Hamilton, 41 Cal.3d 408, 221 Cal.Rptr. 902, 710 P.2d 981 (1985). In upholding the conviction, the court ruled that there was no error in the trial court’s denial of Hamilton’s motion to proceed in pro per. The court also upheld the trial court’s decision to shackle Hamilton during trial. The court agreed with Hamilton that it was error to allow into evidence letters that he had written while in jail on an earlier conviction. Id., 221 Cal.Rptr. at 913, 710 P.2d at 992. However, the court ruled that the evidence was not prejudicial, and refused to overturn the conviction. The court upheld the admission into evidence of another letter, written by Hamilton to Theresa Roch, which threatened the defense attorney, prosecutor and witnesses in his murder trial. The court upheld the admission of Hamilton’s statement to Sheriff Parsons. It also affirmed the admission into evidence of the saw, knife and twine that Hamilton purchased. The court ruled that any error in the admission of Steven Thomas’s testimony was harmless beyond a reasonable doubt.

With respect to his death sentence, Hamilton argued that the special circumstance finding should be set aside and the death penalty reversed due to error under Carlos v. Superior Court, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 (1983), because the court did not instruct the jury on the necessity for intent to kill in the felony-murder special circumstance. The Supreme Court agreed, and set aside the finding of the special circumstance, reversed the death penalty but affirmed on all other grounds.

Hamilton I was vacated by the Supreme Court, California v. Hamilton, 478 U.S. 1017, 106 S.Ct. 3328, 92 L.Ed.2d 734 (1986), for consideration in light of Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). On remand, in Hamilton II, the California Supreme Court upheld the special circumstance finding and the sentence of death. People v. Hamilton, 45 Cal.3d 351, 247 Cal.Rptr. 31, 753 P.2d 1109 (1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102 L.Ed.2d 1002 (1989).

Hamilton thereafter filed a petition in district court, pro se, setting forth exhausted claims. Hamilton contended that shackling his hands and legs at trial was unconstitutional (1 CR 1). The district court dismissed the petition without reviewing the state court record. On appeal, this court reversed the judgment of the district court and remanded the case, instructing the district court to examine the entire trial court record and conduct an evidentiary hearing if necessary. Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir.1989). We also directed the appointment of counsel.

Hamilton filed three more petitions, two of which were dismissed, and one of which was consolidated with the pending petition (SER 8; ER 210). On March 6, 1990, the district court ordered Hamilton to identify, within 90 days, all additional claims to be raised on habeas corpus (ER 207-08). Hamilton identified 38 claims, the majority of which were unexhausted (id. at 245-256). On June 21, 1990, following Judge Alarcon’s concurring opinion in Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989) (Alarcon, J., concurring), the district court ordered Hamilton to file all the unex-hausted claims in state court, or amend the petition to contain only exhausted claims, by August 8, 1990 (id. at 211). On September 18, 1990, the district court extended the time for Hamilton to exhaust state remedies until October 22,1990 (id. at 212-14). In addition, the district court ordered that any claims that had not been filed in state court or any exhausted claims not raised in federal court by that date would be considered waived (id.).

Hamilton filed an amended consolidated petition in the district court on October 22, 1990, the denial of which is the basis of the present appeal to this court (2 CR 48). This petition superseded the pending consolidated petitions (id.). He had not filed any unex-hausted claims with the state court, and all claims raised in the petition had been exhausted (ER 119). The district court, on November 21, 1990, ordered that all claims not included in the amended petition were deemed waived (id. at 215(b)). The district court then conducted a three-week evidentia-ry hearing (I-X EH). At the end of the evidentiary hearing, the district court denied Hamilton’s motion to stay the proceedings in order to present new evidence (ER 216-22).

On August 23, 1991, the district court denied the petition (id. at 114-206). The district court granted a certificate of probable cause to appeal on November 13, 1991 (id. at 229-30). Hamilton timely appealed (id. at 44). Hamilton then filed in the district court a Fed.R.Civ.P. 60(b) motion for relief from the judgment and for leave to amend the habeas corpus petition. The district court denied the motion on September 28, 1992 (13 CR 210). Hamilton timely filed a notice of appeal from the denial of the Rule 60(b) motion on October 26, 1992 (13 CR 210).

Accordingly, we have before us three sets of issues: those relating to the validity of the underlying conviction; those relating to the penalty phase of the state proceedings; and those relating to the denial of the Rule 60(b) motion.

I. Challenges to the Underlying Convictions

A. Shackling

Hamilton contends that the trial court’s decision to shackle him during his state criminal trial violated due process. When this matter was before us earlier, we directed that the district court review the state court record and conduct an evidentiary hearing if necessary to determine the merits of this claim. We observed that “[independent review of the state court record is often vital in habeas petitions, but particularly so in petitions challenging a decision t'o shackle the defendant through his criminal trial. Shackling is strongly disfavored because of the danger that it may deprive the defendant of the presumption of innocence.” Hamilton v. Vasquez, 882 F.2d at 1471. Citing Wilson v. McCarthy, 770 F.2d 1482, 1485 (9th Cir.1985), we further observed that shackling is proper “where there is a serious threat of escape or danger to those in and around the courtroom or where disruption in the courtroom is likely if defendant is not restrained.” Id.

Upon remand, the district court conducted a thorough review of the state court record and held an evidentiary hearing which included testimony from Hamilton’s former counsel, the trial court judge and Hamilton himself. The district court made detailed findings concerning the circumstances surrounding the shackling and the basis for the trial court’s decision.

Those findings reflect that Hamilton was originally placed in restraints prior to trial at the request of his counsel. The request was based upon Hamilton’s sexual assault on counsel’s assistant, and a physical assault on counsel himself. At Hamilton’s request, the shackles were removed, and the trial began with Hamilton in a restrictive leg brace under his trousers. At that point, the district court found that Hamilton was on notice that future shackling depended upon Hamilton’s conduct both in and out of court.

The leg iron was subsequently removed after Hamilton complained of pain. The trial court inquired about the availability of other types of restraints and concluded that Hamilton should have a chance to start trial without restraints.

The episode which gave rise to further restraint was a verbal assault and violent behavior exhibited toward deputies who were to bring Hamilton from his cell to the couri> house on the third day after jury selection commenced. After a hearing that morning, the trial court found a pattern of increased agitation on the part of Hamilton and was concerned that he was “on the edge of losing control of himself at any time.” The court considered and rejected increasing the number of bailiffs because of their inability to control a sudden outburst. The court also considered removing Hamilton from the courtroom during trial but rejected this alternative because of Hamilton’s status as co-counsel. The court ordered Hamilton shackled for trial “with no alternative available.”

Hamilton was then placed in handcuffs attached to a chain around his waist. He had a chain placed around his legs. Although Hamilton was seated during trial, the jury was aware of the shackles because he took the stand to testify.

On the basis of these findings, which are fully supported by the evidence, the district court concluded that the trial court had taken all of the requisite steps to safeguard Hamilton’s rights. These included determining on the basis of adequate inquiry that an unusual measure was necessary to preserve security, pursuing less restrictive alternatives, and warning the defendant that disruptive behavior might result in physical restraints. See Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.), cert. denied, 498 U.S. 832, 111 S.Ct. 95, 112 L.Ed.2d 67 (1990); Spain v. Rushen, 883 F.2d 712, 721 (9th Cir.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990); Tyars v. Finner, 709 F.2d 1274, 1284-85 (9th Cir.1983). The district court concluded that the shackling did not violate Hamilton’s right to due process.

On appeal, Hamilton contends that the facts before the trial judge did not justify shackling. The record as more fully developed in the district court’s evidentiary hearing belies this contention. Hamilton’s behavior outside of court and demeanor in court supported the determination that shackling was justified. The record similarly belies the contention that the trial court failed to consider a less restrictive alternative than shackles. Less restrictive alternatives were attempted but failed.

Hamilton contends that he was not properly warned that he might be placed in shackles, but this contention is without merit. Although he was not expressly warned that he would be placed in shackles, the district court found that he was on notice that further disruptive behavior might lead the court to order shackles. This finding is fully supported by the record which shows that Hamilton was shackled only after he himself complained of pain from the leg brace and expressed his own preference for shackles to the brace.

Finally, Hamilton contends that the district court improperly allowed the trial judge to testify at the evidentiary hearing. This court, in remanding Hamilton’s case, instructed the district court to hold an evidentiary hearing if it deemed such a hearing appropriate to supplement the state court record. Hamilton, 882 F.2d at 1473. Cal. Evid.Code § 703.5 bars a judge from testifying at subsequent civil proceedings as an expert about matters before him in his judicial capacity, but it does not preclude a judge from testifying as a fact witness in a habeas proceeding. There is no basis for holding that California state law, much less féderal law, was violated by the district court’s hearing this testimony. There is, in sum, no basis to overturn the district court’s conclusion that the shackling at trial did not violate Hamilton’s due process rights.

B. Ineffective Assistance of Counsel

Hamilton raises a number of contentions relating to the performance of his counsel, Mr. Ryan, at trial. We agree with the district court that none of these contentions, either standing alone or in combination, rise to the level of constitutional violation of the right to effective assistance of counsel. In weighing these contentions, we must bear in mind that in order to demonstrate ineffective assistance of counsel, a habeas petitioner must show that counsel’s performance fell below that of a reasonable attorney, and that counsel’s errors created a reasonable probability that, but for the errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2062, 2064, 2068, 80 L.Ed.2d 674 (1984). We deal with each of Hamilton’s contentions in turn.

1. Counsel’s request that Hamilton be shackled.

Mr. Ryan made a pretrial request that Hamilton be shackled. The request was based principally upon Hamilton’s violent attack on Ryan’s assistant which, during the hearing before the district court, the assistant described as “life threatening.” Ryan himself testified in the district court that the request was also based on earlier episodes of violence and threats. Ryan further informed the trial court that he was concerned that Hamilton would prejudice his own case if he were to behave violently in front of the jury.

It is difficult to conclude that counsel’s pretrial request was unreasonable in the circumstances, but even if we were to so conclude, the request could not have affected the outcome of the trial. This is because Ryan withdrew the shackling request before Hamilton’s first appearance before the jury, and Hamilton remained unshackled for six days until the jail outburst against deputies convinced the trial court, over Ryan’s objection, that Hamilton should be shackled.

It is true, as Hamilton points out, that the violent episode on October 8 would not in and of itself have justified the shackling, according to the trial judge. Yet, according to the trial judge, Hamilton’s demeanor in court also played a large role in the shackling decision. We cannot accept Hamilton’s further suggestion that but for Ryan’s earlier request for shackling, the trial court would never have known of any other incidents of violence. In considering its options on October 8, the trial court was obligated to become informed of all relevant circumstances, including any prior attacks by Hamilton of which his counsel was aware. If the court had not already known of the prior relevant behavior it should have inquired. See Jones, 899 F.2d at 885. In short, Hamilton cannot show how he was prejudiced by Ryan’s pretrial request for shackling which was withdrawn before the trial began.

2. Failure to investigate and present certain evidence.

Hamilton contends that trial counsel was ineffective because he failed to: (1) investigate and present evidence that the victim was decapitated post-mortem; (2) present an alternative theory as to how the victim’s blood appeared on Hamilton’s shoe; (3) challenge the prosecution’s theory that Hamilton transported the victim’s body in her van; and (4)challenge the prosecution’s use of Hamilton’s identification of the victim.

a. Decapitation.

The pathologist who performed the autopsy on the victim testified at trial that he was unable to state with certainty whether the victim’s head and hands were removed before or after death (42 RT 2337). He did state, however, that the victim was “probably dead” when her hands were cut off (id.).

In this habeas petition, Hamilton claims that his counsel at trial, in order to counter the prosecutor’s suggestion that the decapitation might have occurred before the victim died should have argued that the decapitation occurred after death.

The district court determined that counsel was not ineffective in declining to make such an argument. We agree that counsel could have reasonably concluded that arguing this point might seem to be an effort to trivialize the crime.

b. Blood on the shoe.

Hamilton contends that trial counsel was ineffective because he failed to present an alternative theory as to how the victim’s blood appeared on Hamilton’s shoe. The prosecution’s evidence included Hamilton’s shoe, stained with blood that analysis revealed matched the victim’s blood type and was different from Hamilton’s (51 RT 3112, 3114). The defense theory was that the shoe might have been smeared with the victim’s blood through contact with the van’s bloodstained carpet, as opposed to contact with the victim herself (59 RT 3906). In support of the theory, the defense expert, Mr. Bell, testified at trial that the blood could have been transferred to the shoe from the carpet (id.). However, he conceded on cross-examination that there were no carpet fibers present in the blood on the shoe (id.), and the prosecution’s expert on rebuttal testified that carpet fibers would have been mixed in with the blood on the shoe if the defense theory were true (60 RT 4018).

At the request of Hamilton’s present counsel, Bell conducted an experiment, prior to the district court evidentiary hearing, from which he concluded that it would be possible for blood to have come from the carpet of the van without a transfer of carpet fibers (id. at 38). Bell’s experiment did not use carpet samples from the van, which were still available as evidence, and he conceded that the samples he used were “somewhat different from the carpet in the van” (id. at 36). Bell did not use Hamilton’s shoes, or a similar type, in his experiment (IX EH 127). In addition, Bell used blood from a blood bank which had been treated with anticoagulants, so that its clotting capability, consistency and drying time, were different from the victim’s blood (id at 126-27). The district court properly found that Bell’s experiment was flawed.

During the evidentiary hearing in the district court, Hamilton attempted to establish that counsel was ineffective in never asking the defense expert whether the shoes could have been stained by the carpet without having the blood mixed with carpet fibers. Because of the flaws in the experiment, however, trial counsel cannot be faulted in failing to pursue such a theory. Moreover, even if the testimony had been presented, in view of the flawed experiment, there is no reasonable probability that the trial outcome would have been different. See Strickland 466 U.S. at 694, 104 S.Ct. at 2068. Therefore, there was no denial of effective assistance of counsel in connection with the blood on the shoe.

c. Transportation of the victim’s body.

At trial, the prosecutor argued that Hamilton transported the victim’s body in the victim’s van. This contention was supported by the large blood stain in the storage compartment of the van and presence of carpet fibers matching the carpet of the van on the victim’s stomach and arms.

Defense counsel at trial argued that the body was transported in another car driven by the true killer, noting that tire tracks different from those left by the van were discovered in the area from where the body was recovered.

In the evidentiary hearing in the district court, Hamilton attempted to show that counsel could have made additional arguments to rebut the prosecution’s case. The district court accurately determined that such arguments were also inconclusive. Hamilton has not shown that any additional investigation of this issue would have led to a more credible argument than that made at trial.

d. Hamilton’s identification of the victim.

Hamilton contends that counsel was ineffective because he did not challenge the prosecution’s use of Hamilton’s identification of the victim. AOB 27-28. This claim lacks merit.

When Hamilton was arrested in Oklahoma, he positively identified the victim from a photograph offered by one of the officers, and correctly identified her by her nickname, “Fran” (49 RT 2873). Hamilton also stated that the victim was wearing light-colored jeans and carrying a beige purse the last time he saw her (id. at 2876-76). A friend of the victim testified that when last seen the victim was wearing tan jeans and carrying a tan purse (41 RT 2161).

Hamilton abandoned this story after the victim’s body was recovered. He testified that he concocted the story to avoid being charged with theft of the van (54 RT 3481). Hamilton denied that he had ever seen the victim, dead or alive (id). Counsel argued at trial that Hamilton knew the victim through the contents of the purse that he found in the van (id. at 3393). Counsel did not specifically attempt to rebut the prosecutor’s argument that Hamilton lied when he testified that he had never seen the victim (63 RT 4151-53).

During the evidentiary hearing in district court, Hamilton testified that he was able to identify the victim because there were photographs of her with the purse, as well as papers indicating that the owner of the van was named Fran (II EH 46-47). Hamilton stated that he came up with the idea that she was wearing light pants because the color of her purse was light (id. at 46). The district court found Hamilton’s story to be unworthy of belief .(ER 152).

Hamilton has failed to show that counsel’s performance was deficient under Strickland. The district court’s finding must be upheld unless clearly erroneous, and nothing in the record suggests that this finding is erroneous. Counsel was faced with very strong evidence supporting the prosecution’s theory of identification. Counsel’s failure to present an incredible story does not constitute ineffective assistance.

C. Denial of Right to Self-Representation

Hamilton contends he was deprived of his right to represent himself in violation of Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). A trial court must grant a defendant’s request to represent himself so long as the request is made knowingly and intelligently. Id. at 835, 95 S.Ct. at 2541.

The record before the trial court reflects that Ryan was the third lawyer appointed to represent Hamilton. Hamilton complained about his first attorney’s efforts to encourage an insanity plea based upon information he had obtained in violation of confidences. The trial court relieved counsel based upon a “breach of faith.” After a second lawyer was appointed, the trial court grudgingly agreed to relieve him upon Hamilton’s request, but observed that he saw no reasonable grounds to remove counsel.

When Ryan was appointed, the trial court stated that it would not entertain any more requests to relieve counsel for Hamilton because the trial court believed that Hamilton was seeking to delay the trial. The trial court denied several motions to relieve Ryan before trial, including one on the morning of trial. As the district court found, however, these requests were not unequivocal, see Armant v. Marquez, 772 F.2d 552, 555 (9th Cir.1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1502, 89 L.Ed.2d 902 (1986), and many were untimely as they were made just before or after meaningful trial proceedings had begun. See United States v. Smith, 780 F.2d 810, 811 (9th Cir.1986).

During the evidentiary hearing, the trial judge and counsel testified that requests for self-representation were not sincere, but were made to delay the trial. The district court’s ultimate finding that Hamilton’s attempts to relieve counsel were not expressions of unequivocal desire to represent himself, but were made to delay the trial, is amply supported by the record. Hamilton has not demonstrated that his rights under Faretta were violated.

D. Improper Admission of Evidence

Hamilton challenges the admissibility of certain evidence. The trial court permitted the admission of Deputy Parson’s testimony of Hamilton’s threatening statements while he was securing Hamilton’s chains in prison, on the basis that they were admissible as a spontaneous declaration, not the result of custodial interrogation. By stipulation, the jury was told that Hamilton had purchased a saw, butcher knife and rope while traveling in the victim’s van. The trial court also allowed the admission of three letters written by Hamilton while he was in prison for a prior conviction which demonstrated his fear of prison and willingness to do anything to secure his release (52 RT 3228-30; 3232-36). The trial court ruled that the letters were relevant to show motive under the theory that Hamilton would do anything to avoid returning to prison, including killing the victim, who witnessed his theft of her van (24 RT 324). In addition, the trial court admitted a letter Hamilton wrote where he stated that he knew someone who would kill his attorney and the prosecutor if he were convicted of murder (47 RT 2741). The trial court ruled that the letter was admissible as an attempt to intimidate the prosecution because Hamilton knew that his outgoing mail was being read by prison authorities (id. at 2738).

On appeal, the California Supreme Court held that the admission of the three letters Hamilton wrote while in prison for a prior conviction was error but it was not prejudicial. People v. Hamilton, 221 Cal.Rptr. at 911-914, 710 P.2d at 990-992. The court upheld the trial court’s admission of the other evidence.

Claims of inadmissibility of evidence are cognizable in habeas corpus proceedings only when admission of the evidence violated the defendant’s due process rights by rendering the proceedings fundamentally unfair. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). Although the erroneous admission of the three letters presents different questions with respect to Hamilton’s claim concerning the penalty phase instruction, these letters did not render Hamilton’s guilt phase fundamentally unfair. There has been no showing that the admission of the remainder of the challenged evidence violated Hamilton’s federal rights.

E. Eighteen Day Adjournment

During jury selection, prospective jurors were informed there would be a two-week recess during the winter holidays (26 RT 24, 36, 39, 55; 27 RT 90). On December 18, 1980, the trial court consulted with the jury and learned that at least one juror could not deliberate the week immediately preceding Christmas (65 RT 1). After the jury had deliberated for approximately two and one-half days concerning Hamilton’s guilt, the trial court recessed the trial until January 5, 1981 without objection from Hamilton (8 RT 1497).

Hamilton contends that the adjournment violated his right to due process because it was unjustified and the court did not properly admonish the jury. AOB 41. His contention is meritless.

Hamilton relies on People v. Santamaria, 229 Cal.App.3d 269, 280 Cal.Rptr. 43 (1991) to support his claim. In Santamaría, the California Court of Appeal held that the trial court’s recess order of eleven days during jury deliberations violated the defendant’s right to due process. Id., 280 Cal.Rptr. at 48. In so holding, the court noted that the trial court did not specify the reason for the recess, and there was no indication of any exceptional circumstances which warranted the adjournment. Id.

Hamilton’s case is distinguishable from Santamaría because not only was the adjournment pre-planned, but the court also had a legitimate reason to adjourn the trial. Although the court could have been more stern in instructing the jury not to discuss the case, Hamilton has failed to show that the adjournment and the admonition rendered his trial unfair. See Jammal, 926 F.2d at 919. The holiday recess did not deny Hamilton due process.

II. Challenges to the Penalty Phase

A The Modijied Briggs Instruction on Commutation

Of all the claims raised by Hamilton in this appeal, the most serious relates to the instruction given to the jury during the penalty phase describing the effect of a life sentence without the possibility of parole. Hamilton contends that far from aiding the jury in making a reasoned and informed choice between a sentence of life and death, as due process requires, the instruction given misled the jury as to the likelihood of parole eligibility, encouraged, rather than discouraged the jury from speculating about parole, and distracted the jury from considering relevant mitigating evidence in violation of the Eighth and Fourteenth Amendments.

It is well established that because the punishment of death is qualitatively different from other forms of punishment, there is a greater need for reliability in determining whether a death sentence is appropriate in a particular case. See Fetterly v. Paskett, 997 F.2d 1295, 1301 (9th Cir.1993) (quoting Woodson v. North Carolina, 428 U.S. 280, 303-305, 96 S.Ct. 2978, 2990-2992, 49 L.Ed.2d 944 (1976)). Thus, the requirements of the Eighth and Fourteenth Amendments dictate that:

where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). To avoid the “arbitrary and capricious” imposition of the death penalty, the sentencing body’s attention should be directed to the specific circumstances of the crime and the characteristics of the defendant. Id. at 197, 96 S.Ct. at 2936; see also Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983).

In channelling the jury’s discretion, however, the Eighth Amendment requires that a sentencing scheme allow the jury to consider all relevant mitigating evidence. In analyzing whether a sentencing phase instruction violates the Eighth Amendment, a court must determine if there is a reasonable likelihood that the jury applied the instruction in such a way that prevented consideration of relevant mitigating evidence. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). A penalty phase instruction violates the Eighth Amendment if it prevents the jury from giving a reasoned moral response to the petitioner’s mitigating evidence, Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) or creates the risk that the death penalty would be imposed despite evidence which may call for a life sentence, Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). Therefore, we must examine the challenged instruction in light of these exacting standards for fair and informed jury deliberation in death penalty cases. We conclude that due process and the Eighth Amendment’s prohibition against cruel and unusual punishment combine to require a new penalty phase trial.

The problems in the case stem from the now repealed provision in California law requiring the trial court to instruct the jury in a capital case that the Governor had the authority to commute a life sentence. The instruction commonly given was known as the “Briggs” instruction¹, and provided as follows:

You are instructed that under the state constitution, a governor is empowered to grant a reprieve, pardon or commutation after sentence following conviction of a crime. Under this power a governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.

The instruction was controversial from its inception and was considered by the United States Supreme Court in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).² The Court held, in the circumstances of that case, that the two-sentence instruction survived federal constitutional scrutiny.

In upholding the instruction in Ramos, the United States Supreme Court emphasized that the Briggs instruction itself was aimed at accuracy. It intended to correct the inaccuracy of the sentence description under California law as “‘life imprisonment without possibility of parole’ ... when, under state law, the Governor possesses authority to commute that sentence to a lesser sentence that includes the possibility of parole.” Id. at 1009, 103 S.Ct. at 3457-58 (emphasis in original). The necessary corollary of that holding that guides our analysis in this case is that if an instruction is inaccurate or misleading it will not be upheld.

In this case the two-sentence instruction at issue in Ramos did not accurately describe the life sentence which would be imposed on Hamilton and the instruction given in Ramos was not given in this case. When the state proposed it, defense counsel objected to any Briggs’ instruction being given. Defense counsel objected, in part, because in this case, unlike Ramos, the defendant had been convicted of two prior felonies. The Governor in this case, therefore, could not commute a life sentence without possibility of parole to a life sentence with possibility of parole unless at least four of the California Supreme Court justices had given prior approval. See Cal.Penal Code § 4852 (Deering 1992); California Constitution, Article 5 § 8 (Deering 1981). Defense counsel objected to any instruction involving speculation on the possibility of parole and made clear the defense position that if any instruction on parole were to be given it would have to incorporate substantial modification of the Briggs instruction.

The prosecution proposed modifying the two sentence Briggs instruction in order to explain that in Hamilton’s case parole could be considered after 25 years had been served on a life sentence, less one-third off for good time credits. This proposal effectively told the jury that if it sentenced Hamilton to life imprisonment without possibility of parole, he would be eligible for parole after serving only 16 years and 8 months in prison. This was incorrect. Hamilton would be eligible for parole only if the sentence were commuted to life imprisonment with the possibility of parole. This fact was not explained in the prosecution’s requested instruction to the jury. The proposed instruction was therefore misleading and inaccurate.

The prosecution also requested, as part of the same instruction, language instructing the jury that the subject of commutation, modification, or parole “is not to be considered by you in determining the punishment for Mr. Hamilton.” This was wholly inconsistent with the prosecution’s request that the jury be expressly instructed to consider the Governor’s power of commutation and when Hamilton would be eligible for parole.

Finally, the prosecution requested a lengthy, “cautionary” addition to the Briggs instruction that the jury not speculate what the various governmental officials would do if the matter of Hamilton’s parole were before them; the jury was to assume that the officials would not release Hamilton unless it was safe to do so. This language not only created a negative implication that the officials would not properly perform their jobs, but it invited the jury to assume that the question of Hamilton’s release would automatically come before these officials. This too was inaccurate.

The instruction eventually given was cobbled together by the court when it ruled, with the eventual consent of counsel, that it would give the Briggs instruction as modified by all proposals from both sides. The dissent erroneously suggests that defense counsel was satisfied with the resulting instruction, but the record demonstrates that defense counsel wanted no instruction on parole and had to settle for a modified instruction. The result was a confusing pastiche that provided, after the two sentence Briggs instruction itself, as follows:

This is subject to the requirement that, in the case of any person twice convicted of a felony, a commutation or modification may not be granted absent the written recommendation of at least four justices of the California Supreme Court. Further, a life sentence requires a minimum incarceration of 25 years less one-third off for good time credits before parole may be considered by the proper authorities. You are now instructed, however, that the matter of a possible commutation or modification of sentence is not to be considered by you in determining the punishment for Mr. Hamilton. You must not speculate as to whether such commutation or modification would ever occur. It is not your function to decide now whether this man will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether this man shall suffer the death penalty or whether he shall be permitted to remain alive. If upon consideration of the evidence you believe that life imprisonment without possibility of parole is the proper sentence, you must assume that the Governor, the Supreme Court, and those officials charged with the operation of our parole system will perform their duty in a correct and responsible manner, and that Mr. Hamilton will not be paroled unless he can safely be released into society. It would be a violation of your duty as jurors if you were to fix the penalty at death because of a doubt that the Governor and other officials will properly carry out their responsibilities.

This instruction is very different from the two-sentence instruction upheld by the United States Supreme Court in Ramos. That instruction invited no predictions on what the Governor might do, Ramos, 463 U.S. at 1005, 103 S.Ct. at 3455. In stark contrast, the instruction in this case so focused on the commutation and parole process that speculation was inevitable, and not only about the Governor, but about the state Supreme Court, and parole officials as well.

The United States Supreme Court in Ramos did not permit the jury to speculate about the likelihood of the defendant’s release on parole, for it assumed that the trial court would provide the jury with accurate information concerning the likelihood of commutation and parole. Ramos, 463 U.S. at 1004, 103 S.Ct. at 3455. Furthermore, the Court in Ramos assumed that the instruction did not preclude the defendant from offering any evidence regarding the Governor’s power to commute a life sentence without possibility of parole. Id. However, California case law in effect at the time Hamilton was sentenced prevented defense counsel from showing the actual likelihood of a person ever being paroled if he were sentenced to life imprisonment. See People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 211, 388 P.2d 33, 43 (1964).³

In fact, although defense counsel was not permitted to present such information, the hurdles standing in the way of parole eligibility were formidable indeed. In California, a person who is a twice-convicted felon such as Hamilton must apply directly to the Governor in order to have his sentence commuted. See CaLPenal Code § 4802 (Deering 1992). The Governor, upon receipt of the application, must refer it to the Board of Prison Terms for an investigation and recommendation. Id. After the Board of Prison Terms makes its recommendation, it transfers the application along with the recommendation back to the Governor. See CaLPenal Code § 4813 (Deering 1992). Even if the Board of Prison Terms recommends commutation, the Governor cannot commute a sentence of life without parole unless four justices of the California Supreme Court recommend commutation. See CaLPenal Code § 4852 (Deer-ing 1992); California Constitution, Article 5 § 8 (Deering 1981). Furthermore, even if both the Board of Prison Terms and four justices of the Supreme Court recommend commutation, the Governor has the authority to reject the recommendations. California Constitution, Article 5 § 8 (Deering 1981).

The instruction as given incorrectly suggested that if the jury decided to sentence Hamilton to life without possibility of parole, he would nevertheless be eligible for release. Thus, the jury was invited to speculate that the only way it could avoid Hamilton’s likely release was to sentence him to death. The probability of the jury’s improper speculation was compounded by the prosecutor’s inappropriate assertion in closing argument that Hamilton, if sentenced to prison, would be “conniving and devising ways to manipulate the system and get out.” The prosecutor relied on inflammatory and largely irrelevant letters written by Hamilton years earlier showing his fear of prison. The California Supreme Court held that the admission of the letters was error but it was not prejudicial to the guilt phase. People v. Hamilton, 221 Cal.Rptr. at 911-914, 710 P.2d at 990-992. The court, however, inadequately considered the effect of the letters at the penalty phase.

In considering whether a defendant should be sentenced to death, the jury must be able to exercise the “guided discretion,” required by the Eighth Amendment, by limiting its penalty deliberations to the characteristics of the defendant and the circumstances of the offense. See Gregg, 428 U.S. at 197, 96 S.Ct. at 2936. In exercising this discretion, the jury must consider relevant mitigating evidence. See Penry, 492 U.S. at 319, 109 S.Ct. at 2947. The jury in this case was diverted from this task by having its attention focused on commutation procedures rather than the significant mitigating evidence defense counsel introduced at the penalty phase.

Defense counsel called seven witnesses. They included two of Bernard Hamilton’s brothers, his mother, a neighbor and Hamilton’s pastor. The jury spent three days deliberating in the penalty phase, suggesting that the California jury saw this as a close case. See People v. Murtishaw, 29 Cal.3d 733, 175 Cal.Rptr. 738, 763, 631 P.2d 446, 471 (1988), holding that deliberation of two days in the penalty phase suggésted the issue was close. The lengthy deliberation, coupled with the mitigating evidence presented, supports the conclusion that the detailed instruction on the possibility of commutation and parole prevented the jury from properly considering Hamilton’s penalty.

In short, the modified instruction given in this case did the very thing that the United States Supreme Court in Ramos said the instruction in that case did not do: the instruction in this case created inaccuracies and confusion. The two-sentence Briggs instruction upheld in Ramos was inapplicable to Hamilton because, unlike the defendant in Ramos, Hamilton was a twice-convicted felon and therefore was subject to different commutation requirements. The trial court’s modifications of the Briggs instruction, however, did not cure the problems created by the inaccuracy; rather, they allowed the jury to impose a death sentence based upon improper assumptions concerning parole eligibility.

We cannot accept the district court’s conclusion that the instruction favored Hamilton. The district court stated that the instruction informed the jury that the possibility of parole was “remote.” As we have seen, however, the instruction had the opposite effect by suggesting that Hamilton would come before parole authorities in less than 17 years. Hamilton was 30 years old at the time of trial, so the jury could have assumed, based •upon the instruction, that there was a likelihood that Hamilton would be released from prison by the time he was 47 if it decided to impose a sentence of life without possibility of parole. There was, however, no such likelihood. The dissent articulates no reason why the instruction favored the defendant but begs the question by incorrectly assuming the defense counsel wanted the instruction.

The district court, citing Boyde, also relied upon the “absence in the record” of any showing that the jury failed to listen to the trial court’s admonition not to consider the possibility of commutation. Boyde, however, requires us to look at the instructions as a whole to determine whether there is a reasonable, objective likelihood that the jury was misled. Boyde, 494 U.S. at 380, 110 S.Ct. at 1198. Here, where the trial court told the jury not to consider what it had just been instructed were relevant considerations, the jury must have been misled. The admonition to the jury that it should not consider the possibility of events that had just been described could not cure the error. The jury was required to decide issues of life or death with instructions it could not follow. This is something the Constitution does not permit.

There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.

Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968).

The dissent appears to contend that, under Boyde, there is no constitutional violation unless the defendant proves that the jury has actually used the challenged instruction in an impermissible way. Boyde’s standard, although “stringent,” is not that stringent. The standard announced by the court in Boyde is whether “there is a reasonable likelihood that the jury has applied the challenged instruction” unconstitutionally. Boyde, 494 U.S. at 380, 110 S.Ct. at 1198:

Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such inhibition. This ‘reasonable likelihood’ standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical ‘reasonable’ juror could or might have interpreted the instruction.

Id. For the reasons discussed, we have no difficulty concluding that there is a reasonable likelihood that the jury impermissibly applied the modified Briggs instruction.

New penalty phase proceedings are therefore required, and without any Briggs instruction, in light of the intervening clarification of California law. See Ramos II, 207 Cal.Rptr. at 814, 689 P.2d at 444 (remanding case for new penalty phase without Briggs instruction). The jury in this case deliberating under these instructions could not have made the constitutionality mandated reasoned and informed choice between a sentence of life imprisonment without possibility of parole and a sentence of death.

Hamilton contends that his counsel, Mr. Ryan, was ineffective because he did not argue to the jury that it should consider lingering doubt about Hamilton’s guilt as a mitigating factor in the penalty phase.

The district court found that Ryan could have reasonably concluded that the jury would not be persuaded by such an argument. We agree.

C. Claimed Violation of Ex Post Facto Clause in California Supreme Court Decision on Remand from United States Supreme Court

The California Supreme Court on direct appeal initially reversed the death penalty, holding that the trial court’s failure to instruct that intent to kill was an element of the felony murder special circumstance mandated reversal under Carlos v. Superior Court, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 (1983). People v. Hamilton, 41 Cal.3d 408, 221 Cal.Rptr. 902, 916, 710 P.2d 981, 995 (1985). The United States Supreme Court granted certiorari and vacated and remanded for reconsideration in light of Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), which held that harmless error analysis may apply to jury instructions that erroneously shift the burden of proof to the defendant. California v. Hamilton, 478 U.S. 1017, 106 S.Ct. 3328, 92 L.Ed.2d 734 (1986).

Before the remand, however, the California Supreme Court had overruled Carlos. People v. Anderson, 43 Cal.3d 1104, 240 Cal.Rptr. 585, 604, 742 P.2d 1306, 1325 (1987). On remand of Hamilton’s sentence from the United States Supreme Court, the California Supreme Court applied its holding in Anderson and affirmed the death sentence, holding that the instruction was not erroneous.

Hamilton now argues that the Supreme Court’s application of Anderson was a violation of the Ex Post Facto Clause of the Constitution AOB 60.

This court has held, however, that retroactive application of Anderson does not offend federal rights where, as here, the conviction occurred before Carlos was decided. Hughes v. Borg, 898 F.2d 695, 705 (9th Cir.1990); see also Hunt v. Vasquez, 899 F.2d 878, 881 (9th Cir.1990). Therefore, retroactive application of Anderson is not a violation of defendant’s rights protected under federal law.

III. Denial of the 60(b) Motion

Hamilton appeals from the district court’s denial of his Rule 60(b) motion in which he asks the district court to consider a myriad of claims that were not exhausted in the state court until after the district court entered its judgment denying habeas relief on the exhausted claims and which the district court determined on the merits. Hamilton asks us to hold that the district court abused its discretion in denying the 60(b) motion because he was taken aback by the Supreme Court’s decision in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), holding that petitioners filing subsequent habeas corpus petitions must show cause and prejudice for failing to raise the claims in a first petition for habeas corpus. Hamilton claims that he had relied upon the pre-McCleskey law permitting more lenient filing of subsequent habeas petitions when he refrained from earlier exhausting the Rule 60(b) motion claims. He maintains it was reasonable for him, before McCleskey was decided, to ask the district court to decide some claims and, only when and if those claims were unsuccessful, proceed to his other claims and bring a subsequent petition.

We would be sympathetic to Hamilton’s argument if he had in fact reasonably assumed that all unexhausted claims could be presented without restriction in a subsequent petition. However, in this particular case, it was not reasonable for Hamilton to make such an assumption, because the district court repeatedly warned Hamilton that if he did not exhaust all his claims and present them in a timely manner in his original petition, the district court would deem the unex-hausted claims waived. In these unusual circumstances, we cannot hold that it was an abuse of discretion for the district court to refuse to grant the Rule 60(b) motion and require Hamilton to present those claims in a subsequent petition subject to the strictures of McCleskey.

A more detailed presentation of the chronology reflects not only that Hamilton was repeatedly warned that he should exhaust all claims in order to ensure a full hearing on them, but that Hamilton could, with a brief application to the California Supreme Court, have secured such exhaustion without unduly delaying the district court proceedings.

On March 8, 1990, the district court ordered Hamilton to identify all claims he intended to raise in his habeas petition in accordance with Judge Alarcon’s concurrence in Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (Alarcon, J., concurring). Hamilton identified 38 claims on June 8, 1990, including the claim that Jesse Moffet might have committed the murder for which Hamilton was convicted. (ER 5). The district court eventually gave Hamilton until October 22, 1990 to either exhaust his state remedies with respect to the identified claims that were unexhausted, or present a habeas petition containing only exhausted claims. The district court was willing to stay consideration of Hamilton’s habeas proceeding if he demonstrated that he initiated state proceedings prior to October 22 (ER 19). In its order, however, the district court warned Hamilton that if he presented only his exhausted claims, he would be subject to abuse of the writ principles if he were to later raise additional claims (id.). Hamilton chose to raise only the exhausted claims, and did so on October 22.

On April 16, 1991, the Supreme Court decided McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), which held that a habeas petitioner had to demonstrate cause and prejudice in failing to raise his claims in his first federal habeas petition. On April 23, 1991, Hamilton’s evidentiary hearing commenced. On May 9,1991, at the close of the evidentiary hearing, Hamilton moved to stay the closing of the hearing in light of McCleskey so that he could exhaust state remedies. The district court denied this request. Hamilton asked the court to reconsider this motion on July 1, 1991, which the court denied on August 23. On this date, the court also denied Hamilton’s habeas petition. Hamilton filed a motion for reconsideration, which was denied on November 1, 1991.

Hamilton filed a habeas petition in the California Supreme Court on December 30, 1991, raising the unexhausted claims that were identified in his June 8, 1990 filing in the district court. The California Supreme Court denied his petition without citation on February 17, 1992. On March 17, 1992, Hamilton filed a Rule 60(b) motion in the district court. This court ordered a limited remand so that the district court could consider the 60(b) motion. The district court denied the motion.

Hamilton has failed to show excusable neglect for not attempting to exhaust his state remedies between June 8, 1990, and October 22, 1990. Nowhere in his brief does he explain why he could not present his unex-hausted claims to the California Supreme Court during this time period. Hamilton complains of the fact that the district court denied his discovery requests concerning the Moffet claim, but the district court has the discretion to deny discovery in habeas proceedings, particularly for claims that are unexhausted. See Rule 6(a), Rules Governing Section 2254 Cases.

Hamilton’s reliance on Coleman v. Vasquez, 771 F.Supp. 300, 303-04 (N.D.Cal.1991) is misplaced. In Coleman, the district court stayed briefing and granted the petitioner’s discovery request in light of McCleskey. Id. at 303-04. However, the petitioner in Coleman had filed his amended habeas petition only seven weeks prior to the McCleskey decision and had not been ordered to present all of his claims in a single petition as Hamilton was. See also Bonin v. Vasquez, 999 F.2d 425, 426-27 (9th Cir.1993) (affirming denial of 60(b) motion where petitioner was ordered to present all of his claims in a single habeas petition and failed to do so).

The district court’s order denying Hamilton’s Rule 60(b) motion was not an abuse of discretion and must be affirmed.

Appellant has submitted a brief pro se. We have reviewed all of his claims and to the extent that they differ from those presented by counsel, they are rejected.

Conclusion

The order of the district court denying Hamilton’s Rule 60(b) motion to consider previously unexhausted claims as part of the original habeas petition is AFFIRMED. The district court’s denial of habeas relief on Hamilton’s claim that the instruction in the penalty phase of the trial violated his Eighth and Fourteenth Amendment rights is REVERSED and the matter is REMANDED to the district court with instructions to order new penalty phase proceedings. The judgment of the district court is in all other respects AFFIRMED.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

1 . The Briggs instruction was incorporated into the California Penal Code as a result of a 1978 voter initiative. See California v. Ramos, 463 U.S. 992, 995 n. 4, 103 S.Ct. 3446, 3450 n. 4, 77 L.Ed.2d 1171.

2 . The Briggs instruction is no longer given, for in Ramos, on remand, the California Supreme Court found the Briggs instruction to violate the California Constitution’s due process clause because "it is seriously and prejudicially misleading and because it invites the jury to be influenced by speculative and improper considerations.” People v. Ramos, 37 Cal.3d 136, 207 Cal.Rptr. 800, 809-10, 689 P.2d 430, 439-40 (1984) (Ramos II), cert. denied, 471 U.S. 1119, 105 S.Ct. 2367, 86 L.Ed.2d 266 (1985). The penalty phase trial of this case took place before the decisions in Ramos.

3 . In Morse, the jury was deciding between the death penalty and life with the possibility of parole.