FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARL ERIC GRATZER, 

No. 03-35613 Petitioner-Appellant,

D.C. No.

v.  CV-87-04-H-CCL

MIKE MAHONEY, WARDEN,* OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, District Judge, Presiding

Argued and Submitted

December 7, 2004—Seattle, Washington

Filed January 31, 2005

Before: Jerome Farris, Michael Daly Hawkins, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Farris

*The parties have agreed to substitute Mike Mahoney for Henry Risley

as Respondent-Appellee, pursuant to Fed. R. App. P. 43(c)(2). 

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COUNSEL

Michael Donahoe, Assistant Federal Defender, Helena, Montana, for the petitioner-appellant. 

GRATZER v. MAHONEY 1253
Carol E. Schmidt, Assistant Attorney General, Helena, Montana, for the respondent-appellee. 

OPINION

FARRIS, Circuit Judge: 

Karl Eric Gratzer appeals the district court’s denial of his

petition for habeas corpus, claiming that a jury instruction in

his 1982 trial in Montana for deliberate homicide violated his

constitutional right to due process. We affirm. 

BACKGROUND

The facts underlying Gratzer’s conviction for deliberate

homicide are recounted at State v. Gratzer, 682 P.2d 141

(Mont. 1984); a summary suffices for our purposes. In

December of 1981, the relationship between Gratzer and his

then-girlfriend was deteriorating and Gratzer began to suspect

that his girlfriend was interested in another man, Timothy

Hull. On the evening of April 14, 1982, Gratzer discovered

his girlfriend’s car near a dormitory of the Montana College

of Mineral Science and Technology; his girlfriend did not live

in the dormitory. Gratzer was observed letting the air out of

two tires of the car and was chased away by the observers. 

Gratzer returned to the parking lot armed with a .357 magnum pistol. He saw his girlfriend exit the dormitory, discover

the flat tires, and reenter the dormitory. She came out of the

dormitory hand-in-hand with Hull. As they approached the

car, Gratzer confronted them with gun in hand. Gratzer and

Hull struggled and Hull broke free and attempted to flee. As

Hull retreated, Gratzer shot him in the back of the left leg,

incapacitating him. Gratzer walked to the place where Hull

lay and shot him twice, at point blank range, in the left side

of the head. Hull died instantaneously. Gratzer left the scene

and subsequently turned himself in to the police. 

1254 GRATZER v. MAHONEY
On April 20, 1982, Gratzer was charged with Deliberate

Homicide and Aggravated Assault. At his trial, Gratzer presented expert testimony that he was acting under severe emotional stress at the time of the murder. As a result of this

testimony, the judge gave the jury the following instruction,

No. 10A, as to the offense of Mitigated Deliberate Homicide,

a lesser included offense of Deliberate Homicide:

In order to find the Defendant Guilty of the lesser

offense of mitigated deliberate homicide, the State

must prove the following propositions: 

First, that the Defendant performed the acts causing

the death of Tim Hull, and 

Second, that when the Defendant did so, he acted purposely

or knowingly. 

Additionally, you must find that at the time the

Defendant killed [Hull], he was acting under the

influence of extreme mental or emotional stress for

which there is reasonable explanation or excuse. The

reasonableness of such explanation or excuse shall

be determined from the viewpoint of a reasonable

person in the Defendant’s situation. 

If you find from your consideration of all the evidence that each of the first two propositions has been

proved beyond a reasonable doubt by the State and

that the Defendant, at the time he killed [Hull], was

acting under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse, then you should find the Defendant

Guilty of the lesser offense of Mitigated Deliberate

Homicide. 

However, if you find that the Defendant was not acting under the influence of extreme mental or emoGRATZER v. MAHONEY 1255
tional stress for which there is a reasonable

explanation or excuse, then you should find the

Defendant Guilty of Deliberate Homicide. 

If you find from your consideration of all the evidence that either of the first two propositions has not

been proven by the State beyond a reasonable doubt,

then you must find the Defendant Not Guilty of

Deliberate Homicide. 

The jury convicted Gratzer of Deliberate Homicide and

acquitted him of Aggravated Assault. Gratzer was sentenced

to life imprisonment plus ten years for the use of a firearm in

the commission of the offense. Gratzer appealed to the Montana Supreme Court, challenging Jury Instruction No. 10A,

and the Montana Supreme Court affirmed his conviction.

Gratzer, 682 P.2d at 148. 

On January 13, 1987, Gratzer filed a petition for habeas

corpus in the federal district court of Montana, again challenging Instruction No. 10A. On October 10, 1990, the district

court adopted the magistrate judge’s recommendation that the

State’s motion for summary judgment be granted. Gratzer

filed a notice of appeal and a request for a certificate of probable cause in the district court on October 16, 1990, which the

court denied on November 9, 1990. On November 19, 1990,

Gratzer filed a request for issuance of a certificate of probable

cause with this Court. He contacted this Court on January 27,

1992, seeking the docket sheet reflecting his appeal, but the

Court informed Gratzer that his submissions did not appear to

meet the filing requirements.1

Gratzer did nothing for more than eleven years. On June

30, 2003, he requested a certificate of appealability from this

Court, which was granted on the issues of whether the amend1There is nothing in the record that clarifies the problem with Gratzer’s

submission to this Court in 1990. 

1256 GRATZER v. MAHONEY
ments to the Antiterrorism and Effective Death Penalty Act

apply to his case and whether his constitutional rights were

violated by Instruction No. 10A. 

DISCUSSION

Before addressing the merits of Gratzer’s petition, we

resolve two preliminary matters: the rules and standards governing our review of Gratzer’s petition; and whether the equitable doctrine of laches bars the petition.

Standard of Review Applicable to the Petition

[1] The determination of whether AEDPA applies to a

habeas petition is reviewed de novo. United States v. VillaGonzalez, 208 F.3d 1160, 1163 (9th Cir. 2000). Gratzer’s

original petition for habeas corpus was filed in 1987, and the

AEDPA amendments’ effective date is April 24, 1996. PreAEDPA law applies to the merits of Gratzer’s petition. See

Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). 

The Supreme Court has held that AEDPA’s provisions

regarding the issuance of a COA as a predicate to review in

the court of appeals apply to all cases in which the notice of

appeal was filed after AEDPA’s effective date. Slack v.

McDaniel, 529 U.S. 473, 482 (2000). Gratzer’s notice of

appeal was filed on October 16, 1990, well before the

AEDPA amendments took effect; therefore pre-AEDPA practice applies, and the granting of a COA by this Court was, as

a technical matter, improper. However, the amendment to 28

U.S.C. § 2253 merely codified the pre-AEDPA standard for

obtaining a certificate of probable cause set forth in Barefoot

v. Estelle, 463 U.S. 880, 893-94 (1983). Tillman v. Cook, 215

F.3d 1116, 1120 (10th Cir. 2000). The technical error of issuing a COA, as opposed to a CPC, is therefore immaterial.

Laches

[2] In pre-AEDPA practice, the equitable doctrine of laches

as applicable to habeas petitions was codified in Rule 9(a) of

GRATZER v. MAHONEY 1257
the Rules Governing Section 2254 Cases. Harris v. Pulley,

885 F.2d 1354, 1365-66 (9th Cir. 1988). Rule 9(a) provided:

A petition may be dismissed if it appears that the

state of which the respondent is an officer has been

prejudiced in its ability to respond to the petition by

delay in its filing unless the petitioner shows that it

is based on grounds of which he could not have had

knowledge by the exercise of reasonable diligence

before the circumstances prejudicial to the state

occurred. 

The State argues that it has been prejudiced by Gratzer’s

eleven-year delay in bringing this appeal because it is virtually impossible to re-prosecute him now for a crime that

occurred over twenty years ago. The record reflects a basis for

this argument. Nevertheless, the relevant standard is whether

the State has been prejudiced in its ability to respond to the

issues raised by the petition, Aiken v. Spalding, 684 F.2d 632,

634 (9th Cir. 1982), not in its ability to retry the defendant.

Vasquez v. Hillery, 474 U.S. 254, 265 (1986). Under preAEDPA standards, neither the petitioner’s substantial and

unwarranted delay in filing the petition nor the difficulty of

re-prosecution is dispositive — only the prejudice to the state

in responding to the issues in the petition is material. Aiken,

684 F.2d at 634. 

[3] The question is whether Instruction No. 10A violated

Gratzer’s constitutional rights. The State has not demonstrated

that Gratzer’s delay in raising this question has prejudiced its

ability to respond adequately; the petition will not be dismissed on the basis of laches.

The Merits

Under pre-AEDPA law, we review questions of law raised

in habeas cases de novo. Williams v. Taylor, 529 U.S. 362,

400 (2000) (O’Connor, J., concurring in part). Petitioner’s

1258 GRATZER v. MAHONEY
sole constitutional contention is that his due process rights

were violated because Jury Instruction No. 10A either (1)

improperly imposed the burden of proving mitigation on him,

or (2) did not assign the burden of proving extreme mental or

emotional stress to either party.2

[4] The State charged Gratzer with Deliberate Homicide.

To convict for Deliberate Homicide in 1982, the State was

required to prove beyond a reasonable doubt that one purposely or knowingly caused the death of another human

being. Mont. Code Ann. § 45-5-102 (1981). Under Montana

law at the time, “knowledge or purpose may be inferred from

the fact that the accused committed a homicide and no circumstances of mitigation, excuse or justification appears.”

Mont. Code Ann. § 46-16-203(2) (1982).3

The State did not charge Mitigated Deliberate Homicide. In

1982, Montana’s Mitigated Deliberate Homicide statute stated

in relevant part:

Criminal homicide constitutes mitigated deliberate

homicide when a homicide which would otherwise

be deliberate homicide is committed under the influence of extreme mental or emotional stress for which

there is reasonable explanation or excuse . . . . 

Mont. Code Ann. § 45-5-103(1) (1982). 

In Gratzer’s appeal, the Montana Supreme Court stated that

neither party has the burden of proof as to mitigating circumstances, but either party may present evidence of mitigation.

Gratzer, 682 P.2d at 146. That statement of law has subse2At no point in his briefing does Gratzer claim that the failure of Jury

Instruction No. 10A to instruct the jury as to the quantum of proof necessary to establish extreme mental or emotional stress violated his constitutional rights. At oral argument, counsel for Gratzer explicitly disavowed

such a claim. 

3This statement was not included in Instruction No. 10A. 

GRATZER v. MAHONEY 1259
quently been codified at Mont. Code Ann. § 45-5-103(3)

(2003).4

[5] Gratzer argues first that Instruction No. 10A imposed

the burden of proving mitigation on him, thereby improperly

relieving the prosecution of its burden to prove the absence of

mitigating circumstances. This contention must be rejected.

The State charged Gratzer with Deliberate Homicide. The

existence of extreme mental or emotional stress is not an element of that offense. It is nonsensical to argue that the State

should have been required to prove anything other than the

elements of Deliberate Homicide in order to obtain a conviction for that crime. The elements in the Montana statute distinguish this case from United States v. Marolda, 615 F.2d

867 (9th Cir. 1980), upon which Gratzer purports to rely.

There, the government charged Marolda with embezzling

from a labor union and the jury convicted him of that offense.

Id. at 868. One of the facts underlying the charge was Marolda’s alleged improper use of a credit card for unauthorized

charges. Id. We held that it was error for the district court to

instruct the jury that it need not decide whether Marolda’s use

of the credit card was properly authorized. Id. at 870-71. By

contrast, the State did not charge that Gratzer acted in the

absence of extreme mental or emotional stress; it charged

only that Gratzer committed Deliberate Homicide, whose ele4States are not required to provide affirmative defenses or mitigating

circumstances, and may define which party bears the burden of proof for

such defenses and circumstances. See Patterson v. New York, 432 U.S.

197, 209 (1977) (“If the State . . . chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may

assure itself that the fact has been established with reasonably [sic] certainty. To recognize at all a mitigating circumstance does not require the

State to prove its nonexistence in each case in which the fact is put in

issue, . . . .” ); Martin v. Ohio, 480 U.S. 228, 232 (1987) (“[In Patterson,

we] emphasized the preeminent role of the States in preventing and dealing with crime and the reluctance of the Court to disturb a State’s decision

with respect to the definition of criminal conduct and the procedures by

which the criminal laws are to be enforced in the courts, including the burden of producing evidence and allocating the burden of persuasion.”). 

1260 GRATZER v. MAHONEY
ments (and the facts undergirding them) do not include proof

that the defendant acted in the absence of mitigating circumstances. 

[6] Rather, Gratzer’s claims are akin to those discussed by

the United States Supreme Court in Patterson v. New York,

432 U.S. 197 (1977). In Patterson, the Court upheld the constitutionality of a statute that required the defendant to prove

the affirmative defense of “extreme emotional disturbance”

by a preponderance of the evidence once the prosecution had

proved the elements of second degree murder beyond a reasonable doubt. Id. at 206. So here, where Instruction No. 10A

stated that the prosecution was required to prove the two elements of Deliberate Homicide beyond a reasonable doubt; at

that point, imposing the burden on Gratzer to prove mitigation

(assuming this is, in fact, what the instruction did) was not

unconstitutional. 

[7] Gratzer next complains that the trial court’s failure to

assign the burden of proving mitigation to either party violated his right to due process and may have compromised the

jury’s unanimity task. It is true that Instruction No. 10A does

not allocate the burden of proving mitigation to either party;

this ambiguity left the jury in the admittedly unusual position

of speculating about who bore the burden. However, if it was

not constitutional error for the jury to place the burden of

proving mitigation on Gratzer (and Gratzer does not argue

that it would have been error for the jury to place the burden

of proving the absence of mitigation on the prosecution) then

Instruction No. 10A cannot violate the Constitution by failing

to assign the burden of proving mitigation.5 Gratzer fails to

make out a constitutionally colorable claim. 

5

See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (providing that the test

for an ambiguous jury instruction is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that

violates the Constitution” (citing Boyde v. California, 494 U.S. 370, 380

(1990)) 

GRATZER v. MAHONEY 1261
AFFIRMED.

1262 GRATZER v. MAHONEY