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A jury instruction that “impermissibly lowers the burden of proof” requires structural error review.

Busby, a warden of Ironwood State Prison in California, appealed the district court ruling granting Doe a conditional writ of habeas corpus. A California jury found Doe guilty of first degree murder and he was sentenced to 31 years to life in prison. Following his conviction, Doe filed a federal habeas claim past the one-year limit. On appeal, the Court addressed two issues: (1) tolling the habeas claim filed beyond the one-year limit and (2) jury instructions that impermissibly allowed jurors to convict Doe by a preponderance of evidence. First, the Court agreed with the magistrate’s recommendation to allow the statute of limitations to toll because Doe demonstrated “reasonable diligence” after his counsel proved to be “utterly deficient and unprofessional,” failing to file the habeas petition on time, and then made unfulfilled promises. The Court then examined jury instructions that allowed jurors to consider unadjudicated acts of domestic violence to show propensity for one charge, if they found by a preponderance of the evidence, that the prior acts had in fact occurred. The Court determined the instructions allowed jurors to consider propensity on all charges, and the “preponderance instruction in tandem with the reasonable doubt instruction” left jurors “to guess which standard to apply.” AFFIRMED.