                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

SALLY MARIE MCNEIL,                 
            Petitioner-Appellant,         No. 01-56565
              v.
                                           D.C. No.
                                         CV-99-01490-JM
RAYMOND L. MIDDLETON; BILL
LOCKYER,                                   OPINION
          Respondents-Appellees.
                                    
    On Remand from the United States Supreme Court

                  Filed March 29, 2005

  Before: Robert R. Beezer, Ferdinand F. Fernandez, and
            Richard A. Paez, Circuit Judges.

              Opinion by Judge Fernandez;
                 Dissent by Judge Paez




                          3783
                       MCNEIL v. MIDDLETON                        3785


                             COUNSEL

Charles R. Khoury, Jr., Wilton, New Hampshire, for the
petitioner-appellant.

Warren P. Robinson, Deputy Attorney General, San Diego,
California, for the respondent-appellee.


                             OPINION

FERNANDEZ, Circuit Judge:

   We fully outlined the background of this case in our first
opinion,1 and will not repeat all of its shocking details here.
Suffice it to say that McNeil took a shotgun and fired it into
the midsection of her husband while he was cooking. Not
feeling that she had done enough damage, she then reloaded
the weapon and shot him in the face. The first shot caused so
much damage that his liver was protruding out of his skin; the
second blew away much of the lower portion of his face. He
died.

   McNeil, who was, herself, an aggressive and violent per-
son, asserted that she suffered from the effects of Battered
Women’s Syndrome (“BWS”) and that, therefore, she had
shotgunned her victim in an act of perfect self-defense. At the
very least, she said, her actions were an instance of imperfect
self-defense, which would make her guilty of voluntary man-




  1
   McNeil v. Middleton, 344 F.3d 988, 991-94 (9th Cir. 2003) (McNeil I),
rev’d 541 U.S. 433, 124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004) (per
curiam).
3786                     MCNEIL v. MIDDLETON
slaughter at worst. Each of those defenses requires that a
woman have an actual belief in the need to defend herself.
They differ in that perfect self-defense requires that the belief
be reasonable, whereas for imperfect self-defense the belief
must be unreasonable.

   The trial judge correctly instructed the jury that BWS could
be considered on the issue of McNeil’s actual belief, but
incorrectly instructed that it could not be considered in testing
reasonableness for perfect self-defense purposes. The jury
could consider BWS for the purpose of deciding if there was
an unreasonable belief for imperfect self-defense purposes.
The jury specifically found that McNeil was guilty of second
degree murder and that she was not guilty of voluntary man-
slaughter.2

   When this case was previously before us, we determined
that the writ should issue. We said that if the jury followed the
instructions literally, it could have rejected imperfect self-
defense because McNeil did not behave as a reasonable per-
son in reacting as she did. See McNeil I, 344 F.3d at 997. In
other words, she could not show that her crime was voluntary
manslaughter, rather than murder. Id. Thus, even though BWS
evidence could be considered, it did her little good because if,
due to BWS, her perceptions were other than that of a reason-
able person, she could not demonstrate that her actions
resulted in voluntary manslaughter at most.3

  The Supreme Court reversed because it did not agree with
us. See Middleton v. McNeil, 541 U.S. 433, 124 S. Ct. 1830,
  2
     We will not inquire into whether the jury erred in deciding both issues.
That would be improper. See Stow v. Murashige, 389 F.3d 880, 883 (9th
Cir. 2004).
   3
     Due to a BWS instructional error, McNeil was already deprived of the
use of that concept for the perfect self-defense purpose of deciding
whether her belief was reasonable. We held that the error regarding volun-
tary manslaughter took away imperfect self-defense as well, and left her
exposed to the full force of the other evidence.
                     MCNEIL v. MIDDLETON                      3787
158 L. Ed. 2d 701 (2004) (per curiam) (McNeil II). In its
view, we had expected too much legal sophistication (even
scholasticism) on the part of jurors. Id. at ___, 124 S. Ct. at
1833. As the Court put it:

    Perhaps the Ninth Circuit reasoned that the errone-
    ous definition of “imminent peril” caused the jury to
    believe that the earlier, correct instructions (“actual
    but unreasonable belief in the necessity to defend
    against imminent peril”) meant that, although the
    belief in the necessity to defend may be unreason-
    able, the belief in the existence of the “imminent
    peril” may not. This interpretation would require
    such a rare combination of extremely refined
    lawyerly parsing of an instruction, and extremely
    gullible acceptance of a result that makes no con-
    ceivable sense, that the state court’s implicit rejec-
    tion of the possibility was surely not an
    unreasonable application of federal law.

   Id. (emphasis in original). Were we now to order issuance
of the writ, we would fall into that same pit by assuming that
the jurors took too much notice of legal niceties as they fos-
sicked for meaning in the bosk created by the trial court’s
instructions. Let us explain.

   [1] Despite the legal technicalities of the instructions, the
Supreme Court has told us in no uncertain terms that we must
assume that the jury would not fall prey to those technicali-
ties. It is apparent that the only nontechnical way that the jury
could find McNeil guilty of second degree murder but not
guilty of voluntary manslaughter would be if she failed to
have an actual belief in the need for self-defense. Otherwise,
the jury would have had to say something like this to itself:
“Considering the BWS evidence, we think that McNeil is not
guilty of voluntary manslaughter because she had an actual,
but reasonable, belief in the need for self-defense, and, there-
fore, her self-defense was not of the imperfect variety. How-
3788                   MCNEIL v. MIDDLETON
ever, when we come to second degree murder, where we
cannot use BWS evidence for the purpose of deciding the
question of reasonable belief, we find that she cannot estab-
lish perfect self-defense because she had an actual, but unrea-
sonable, belief in the need for self-defense.”

   There may not be an intellectual or logical disconnect in
that form of reasoning, but the Supreme Court has told us
that, while the legal mind might be that daedalian (or would
it say “banausic”), no jury would be. That is, no jury would
consent to allow itself to be intellectually manipulated into
convicting a person of second degree murder and acquitting
her of voluntary manslaughter because it found her belief in
the need for self-defense reasonable in the latter case but
unreasonable in the former. Even if it would be rational for a
juror to think that way and wind up convicting McNeil of a
greater offense, it would bespeak, as the Court has put it, too
much lawyerly refinement and too much gullibility. Id.

   [2] What we are left with is the only common ground
between the two defenses — lack of an “actual belief” in the
need for self-defense.4 If the jury found that, she would not
be entitled to either perfect or imperfect self-defense and,
thus, would not be guilty of voluntary manslaughter, but must
be guilty of second degree murder. Or, at the very least, the
state courts’ decisions that the jury must have so determined
was “surely not an unreasonable application of federal law.”
Id.; see also 28 U.S.C. § 2254(d)(1). In other words, the state
courts could properly hold that McNeil’s lack of an actual
belief in the need for self-defense made the instructional
errors regarding reasonableness non-prejudicial. Were we to
hold otherwise, our former “error” would become recrudes-
cent.
  4
   It is noteworthy that the jury could consider BWS when it ruminated
upon the actual-belief issue.
                        MCNEIL v. MIDDLETON                          3789
                           CONCLUSION

   [3] Because we cannot say that the state courts unreason-
ably applied federal law when they upheld McNeil’s convic-
tion, the writ of habeas corpus cannot issue.

   AFFIRMED.



PAEZ, J., dissenting:

   I respectfully dissent.

   In my view, McNeil’s due process right to present a com-
plete defense was violated when the trial court incorrectly
instructed the jury that the evidence of Battered Women’s
Syndrome (BWS)1 could not be considered for the reasonable-
ness of her belief in the need for self-defense.2 McNeil’s sole
defense to the murder charge was that she shot Ray in self-
defense. To establish a claim of perfect self-defense, she had
to show that her fear of imminent harm was both actual and
reasonable. See People v. Humphrey, 921 P.2d 1, 6 (Cal.
1996). To do so, she relied heavily on the BWS evidence. The
trial court’s erroneous limiting instruction precluded McNeil
from establishing the reasonableness of her belief — a critical
element of her defense. Thus, the trial court deprived McNeil
of her due process right to “be afforded a meaningful opportu-
nity to present a complete defense.” California v. Trombetta,
467 U.S. 479, 485 (1984); see also Chambers v. Mississippi,
410 U.S. 284, 294 (1974); Washington v. Texas, 388 U.S. 14,
  1
    We detailed the substance of McNeil’s BWS evidence in our original
opinion, see McNeil v. Middleton, 344 F.3d 988, 992-93, 1001 (9th Cir.
2003), and I need not repeat it here.
  2
    In our original opinion, we limited our analysis to the imperfect self-
defense instruction and did not reach this instructional error. See McNeil,
344 F.3d at 995.
3790                 MCNEIL v. MIDDLETON
19 (1967); see also DePetris v. Kuykendall, 239 F.3d 1057,
1062-63 (9th Cir. 2001) (recognizing that the exclusion of
evidence that “went to the heart of the defense” was unconsti-
tutional under Chambers and Washington).

   In concluding that the instructional error was harmless, the
California Court of Appeal reasoned that because the jury
found McNeil guilty of second-degree murder, it must have
found that she lacked an actual belief in the need to act in
self-defense. In so concluding, the court relied on the fact that
“[t]he jury was specifically instructed that if McNeil had an
actual belief in the need to act in self-defense she could not
be guilty of murder.” People v. McNeil, No. D026047, slip op.
at 11 (Cal. Ct. App. Jun. 18, 1998). Yet the jury was not so
instructed, either explicitly or implicitly. Instead, the jury was
clearly and repeatedly told that the “killing of another person
in self defense is justifiable and not unlawful when the person
who does the killing” had an actual and reasonable belief in
the need for self-defense. Thus, the fact that the jury con-
victed McNeil of second-degree murder does not conclusively
establish that it found that she lacked an actual belief in the
need for self-defense.

   The majority agrees with the California Court of Appeal’s
conclusion that the jury must have found that McNeil lacked
an actual belief in the need for self-defense. It relies on the
jury’s verdict of “not guilty” on the voluntary manslaughter
charge to show that the common denominator among these
inconsistent verdicts is that McNeil lacked an actual belief in
the need for self-defense. The majority’s reasoning implies
that by returning a verdict of “not guilty” of voluntary man-
slaughter, the jury actually meant that the imperfect self-
defense did not apply — that is, McNeil did not qualify for
this lesser charge because she lacked an actual belief in the
need for self-defense.

  I decline to place any confidence in the jury’s voluntary
manslaughter verdict. It was clearly inconsistent for the jury
                    MCNEIL v. MIDDLETON                  3791
to find McNeil not guilty of voluntary manslaughter, yet
guilty of second-degree murder. The jury was specifically
instructed not to return any other verdict forms if it found
McNeil not guilty of first degree murder, but guilty of second
degree murder. Although it is possible that the jury made a
simple mistake and intended to determine that imperfect self-
defense did not apply, we cannot know the jurors’ delibera-
tions. See Stow v. Murashige, 389 F.3d 880, 890 (9th Cir.
2004). We simply cannot divine the jurors’ thought processes
to construe an internal coherence among the inconsistent ver-
dicts.

   Because the centerpiece of McNeil’s defense was the BWS
evidence, the erroneous instruction effectively precluded the
jury from finding that she acted in self-defense when she shot
and killed Ray. The record leaves me in “grave doubt” as to
whether the denial of McNeil’s due process right to present a
meaningful defense had a “substantial and injurious” effect on
the jury’s verdict. See O’Neal v. McAninch, 513 U.S. 432, 436
(1995); Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). I
would therefore reverse the district court’s denial of habeas
relief.
