NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0972n.06

                                            No. 11-3191
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS
                                                                                       Sep 04, 2012
                                                                                DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


MICHAEL A. HORTON,                                     )
                                                       )
       Petitioner-Appellee,                            )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR THE
WARDEN, TRUMBULL CORRECTIONAL                          )   NORTHERN DISTRICT OF OHIO
INSTITUTION,                                           )
                                                       )
       Respondent-Appellant.                           )
                                                       )


BEFORE: COLE, GILMAN, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Respondent-Appellant Warden of the Trumbull

Correctional Institution appeals the district court’s order conditionally granting Petitioner-Appellee

Michael Horton’s petition for a writ of habeas corpus based on the Ohio state trial court’s refusal to

issue a self-defense instruction in Horton’s 2007 trial for murder, in violation of Ohio Rev. Code §

2903.02(A), and for discharging a firearm while in a motor vehicle, in violation of Ohio Rev. Code

§ 2923.16(A). Because we conclude that the state court adjudication of Horton’s due process claim

did not involve an unreasonable application of clearly established federal law, we REVERSE.

                                                  I.

       The Ohio Court of Appeals summarized the facts of the case as follows:

       ¶2 On August 11, 2006, 18-year-old April Kienzle was celebrating her birthday. A
       party for Kienzle and her friend, Amanda, was planned at a house on 15th Street in
       the City of Canton occupied by Amanda’s brother. Kienzle arrived at the party about
No. 11-3191
Horton v. Warden, Trumbull Corr. Inst.

       2:30 p.m. to help set up. There was a mix of people at the party - “older folk,
       younger folks, middle-age folks.” Among the partygoers were the Delgado brothers,
       James and Jesse, Perry Carlisle, Coty Cricks and Ricky Joiner.

       ¶3 Later that day, [Horton] called Kienzle on her cell phone and asked her to come
       meet him. Kienzle dated [Horton] for about a year before the party. Kienzle told
       [Horton] she could not meet him because she was at the party drinking beer and
       doing shots. [Horton] then told Kienzle he wanted to see her. Kienzle checked with
       Amanda, Joiner, the Delgado Brothers and others, asking them if they had a “problem
       if Mike came over?” Kienzle then told [Horton] he could come over, that “nothing
       was going to happen” and gave him directions to the party.

       ¶4 [Horton] asked his friend, Mario Carbenia, if he would drive him to the party
       offering him $ 10.00 for gas. Carbenia had use of his cousin’s green Ford Explorer
       that day and agreed to take [Horton] to the party. [Horton] took a .40 caliber semi-
       automatic handgun with him to the party, tucked in his pants at the belt line. On the
       way over to the party, Carbenia and [Horton] were lost and called Kienzle for
       additional directions. By the time the pair arrived at the party it was dark. Carbenia
       pulled the Explorer over to the south side of the road across from the party house.
       Carbenia left the Explorer’s motor running. There were 10 to 14 people on the
       porch. [Horton] called Kienzle on his cell phone and told her he was outside.
       Kienzle came out of the house with two other girls and went to the passenger side of
       the Explorer next to the curb to talk to [Horton]. [Horton] remained in the car and
       the couple exchanged greetings. Kienzle saw the handgun tucked in [Horton’s] pants
       and told him “if he was going to start anything, he could go ahead and leave because
       we weren’t having that.” One of the girls standing by the Explorer with Kienzle left
       and went back into the home.

       ¶5 While Kienzle and [Horton] were talking, Coty Cricks came up to the driver’s side
       window, looked in and walked over to Kienzle, saying “[I]s this who I’m supposed
       to be holding Ricky back from?” Hearing this, Carbenia tapped [Horton] on the
       chest saying, “something’s wrong, let’s go.” [Horton] and Carbenia did not leave.

       ¶6 Joiner, Jesse Delgado and Perry Carlisle went out to the Explorer. Joiner ran up
       to the passenger side window and reached inside the vehicle. Kienzle heard some
       yelling and then a gunshot. Joiner fell to the ground and the Explorer pulled off.

       ¶7 After the shooting, there was a lot of screaming and panic - “millions of people
       running around and screaming. Kienzle and her girlfriend left in a car and went to
       the home of Carol Kemp. They were hysterical, screaming and saying, “we just saw
       somebody get shot in the head.” Kemp called 911. A detective called her back and

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Horton v. Warden, Trumbull Corr. Inst.

       asked her to send the girls down to the police station to make a statement. Kemp
       overheard Kienzle talking on her cell phone saying, “It was my fault because I got
       him there.”

       ¶8 The Delgado brothers, Cricks and Carlisle went to the aid of Joiner. They were
       holding Joiner who had been shot in the left cheek. Cody Cricks put a shirt over
       Joiner’s face and put pressure on the gunshot wound. The paramedics were
       dispatched at 11:32 pm. They found Joiner lying on the ground with a gunshot
       would [sic] to his head under his left eye. About 15 minutes later, they arrived at
       Aultman Hospital. Joiner was pronounced dead of a gunshot wound in the
       emergency room of the hospital.

       ¶9 After [Horton] shot Joiner, Carbenia “took off” in the Explorer. When they got
       down the street, Carbenia testified that there was a clear beer bottle on [Horton’s] lap.
       [Horton] threw the bottle out the window. Carbenia asked [Horton] what happened
       to the expelled bullet jacket and [Horton] told him it was still in the gun. [Horton]
       took off his shirt and directed Carbenia to the home of his girlfriend in East Canton,
       Anna Rukavina. [Horton] and Carbenia arrived around midnight. [Horton] took
       Rukavina in the bedroom and told her that he thought he killed someone. [Horton]
       told her that the truck he was riding in was surrounded by fifteen people and that he
       shot out the window to back everyone away from the truck. He was wearing a grill
       on his front teeth and complained that it felt different. [Horton] told Rukavina that
       he had been hit in the mouth with a beer bottle.

       ¶10 [Horton] stayed the night with Rukavina. The next morning about 5:30 a.m.,
       Rukavina received a call from Joiner’s cousin who told her that [Horton] had killed
       Joiner. Rukavina later received calls that there were people out looking for [Horton].
       Rukavina told [Horton] about the telephone calls.

       ¶11 A day after the shooting, [Horton], accompanied by his mother, turned himself
       in to authorities at the Stark County Sheriffs Department.

       ¶12 Detective Vic George of the Canton Police Department was assigned to
       investigate the shooting of Joiner. George interviewed witnesses and learned the
       name of a suspect, Michael Horton, Jr. Detective George learned that [Horton] had
       turned himself in and went out to the Stark County Jail to interview him. Detective
       George observed no injuries on [Horton] and [Horton] complained of none. [Horton]
       told Detective George it [the shooting] wasn’t his fault — that it was an accident.
       [Horton] further told Detective George that Joiner struck him in the face with a clear
       colored beer bottle. When that happened, he pulled a gun out of the waistband of his
       pants with his left hand and drew his arms across his chest to fire it out the window

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Horton v. Warden, Trumbull Corr. Inst.

       to scare off the person. Detective George asked [Horton] about the gun. [Horton]
       responded that it was in a safe place.

       ¶13 Detective George was unable to locate the beer bottle where [Horton] said he
       threw it. The gun was not found.

       ¶14 The Chief Deputy Coroner, P. S. Murthy, performed an autopsy on Joiner’s
       body. Doctor Murthy noted that Joiner was an 18-year-old “very healthy young
       man.” Doctor Murthy first observed a lot of blood and a gunshot wound in the region
       of the left face. He saw a grazing wound on the left side of the nostril. Doctor
       Murthy also observed a prominent area of stippling on the face. Doctor Murthy
       described stippling as “when a firearm is discharged, burnt powder and then unburnt
       power is discharged from the firearm; and this unburnt gunpowder particles make
       small punctate reddish brown marks on the body and the skin surface.” There were
       also areas of stippling on Joiner’s right forearm. The presence of stippling can
       indicate how far the muzzle of the gun was from the skin surface. From the presence
       of the stippling, Doctor Murthy was able to opine that the gun was fired 1-1/2 to 3
       feet from Joiner’s face and cheek. Doctor Murthy also opined that the stippling on
       Joiner’s right forearm was caused when Joiner attempted to deflect the gun.

       ¶15 Based on his examination of the brain, Doctor Murthy was able to determine that
       the bullet traveled through Joiner’s skull essentially pulverizing it — pulpefaction.
       The brain was torn into small pieces and became a soupy type of material. Joiner
       died from hemorrhaging of the brain caused by a gunshot wound to the face.

       ¶16 Doctor Murthy was able to collect some bullet fragments from the brain; the lead
       core of the bullet, two large fragments and the copper jacket. Those fragments were
       turned over to the Stark County Crime Laboratory for analysis.

       ¶17 Dennis Florea, firearms expert, examined the bullet fragments and copper jacket.
       From that examination, Florea was able to determine that the bullet was fired from
       a firearm having six lands and grooves with a right twist. Glock Firearms, Heckler
       & Koch Firearms, Israeli Military Industries or IMI, and Kahr Firearms produce such
       a firearm. Florea examined the coroner’s pictures of Joiner’s body and noted the
       stippling on his face. Florea opined that the muzzle of the firearm was held 12 to 18
       inches from Joiner's cheek when it was fired.

State v. Horton, No. 2007-CA-00085, 

, at *1–3 (Ohio Ct. App. Dec. 3, 2007)

(unpublished opinion).


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Horton v. Warden, Trumbull Corr. Inst.

       In October 2006, the prosecuting attorney for Stark County, Ohio, charged Horton with

murder, Ohio Rev. Code § 2903.02(A), discharging a firearm while in a motor vehicle, 

and having a weapon while under a disability, 

Before trial,

Horton pleaded guilty to having a weapon while under a disability. In February 2007, the two

remaining charges proceeded to a jury trial.      Following the presentation of evidence, Horton

requested a jury instruction on self-defense, but the court found that there was insufficient evidence

to support a self-defense instruction. Horton also requested instructions on negligent homicide,

reckless homicide, voluntary manslaughter, involuntary manslaughter, and aggravated assault, all

of which the court denied. The trial court instructed the jury, in relevant part:

       Before you can find the Defendant guilty, you must find that beyond a reasonable
       doubt that on or about the eleventh day of August, 2006, in Stark County, Ohio,
       Michael Anthony Horton, Jr., purposefully caused the death of [Joiner].
       ....
       Purposely. Purpose to cause death is an essential element of the crime of murder.
       A person acts purposely when it is his specific intention to cause a certain result.

       It must be established in this case that at the time in question there was present in
       the mind of the Defendant a specific intention to cause the death of [Joiner].

       Purpose is a decision of the mind to do an act with a conscious objective of
       producing a specific result or engaging in a specific conduct. To do an act purposely
       is it [sic] do it intentionally and not accidentally. Purpose and intent mean the same
       thing.

       The purpose with which a person does an act is known only to himself unless he
       expresses it to others or indicates it by his conduct.

       The purpose with which a person does an act or brings about a result is determined
       from the manner in which it is done, the means or weapons used, and all the other
       factors and circumstances in evidence.



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Horton v. Warden, Trumbull Corr. Inst.

        If a wound is inflicted upon a person with a deadly weapon in a manner calculated
        to destroy life, the purpose to cause the death may be inferred from the use of the
        weapon.

        Proof of motive is not required. The presence or absence of motive is one of the
        circumstances bearing upon purpose.

(Tr., R. 11-3, at 880–83.)

        The jury convicted Horton of both counts, and on February 26, 2007, the court sentenced

Horton to an aggregate term of 25 years to life in prison.

        On direct appeal, Horton claimed, inter alia, that the trial court erred by refusing to instruct

the jury on self-defense. The Ohio Court of Appeals affirmed Horton’s conviction and found that

the trial court did not abuse its discretion by refusing the instruction. See Horton, 

, at *14–15. The court concluded:

        ¶111 In the case at bar, [Horton] simply did not present sufficient evidence in this
        case that would enable a juror to reasonably believe that [Horton] had a bona fide
        belief that he was in imminent danger of death or great bodily harm from either the
        decedent or anyone else, or that any of the individuals at the party were involved in
        any common scheme or plan to rob and assault [Horton], that warranted [Horton’s]
        use of deadly force to defend himself against the decedent. In fact, such an argument
        runs counter to [Horton’s] statement to the police that the shooting was accidental.
        Finally, [Horton] was seated inside a motor vehicle parked on the street with the
        motor running. There is no evidence to suggest that [Horton] was impeded from
        simply driving away from the party.

        On appeal to the Supreme Court of Ohio, Horton claimed, inter alia, that the trial court’s

refusal to instruct the jury on self-defense deprived him of due process. The Supreme Court of Ohio

dismissed Horton’s appeal as not involving a substantial constitutional issue.



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Horton v. Warden, Trumbull Corr. Inst.

        Horton then timely filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United

States District Court for the Northern District of Ohio. The Warden responded that Horton’s habeas

claims were all procedurally barred except for the claims that he was deprived of due process

because the trial court refused to give instructions on self-defense and on negligent homicide.

Horton filed a traverse in which he abandoned all but one ground for relief—namely, that “the state

appeals court unreasonably applied California v. Trombetta, 

(1984)[,] when it held

that Mr. Horton failed to present sufficient evidence to support a self-defense instruction.”

(Traverse, R. 9, at 5.)

        A magistrate judge issued a Report and Recommendation (“R&R”) concluding that Horton’s

petition should be granted unless the state of Ohio afforded him a new trial. The district court

incorporated in full the magistrate’s R&R and conditionally granted Horton’s petition for a writ of

habeas corpus. (Op. & Order, R. 13, at 10.) The Warden timely appealed.

                                                 II.

        The Warden first contends that in granting Horton’s habeas petition, the district court

“erroneously transformed what should have been a non-cognizable State law challenge in habeas

to a reviewable question of the denial of the federal due process right to present a defense.”

(Warden Br. at 18.) We disagree.

        “In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 

,

68 (1991) (citations omitted). “[I]t is not the province of a federal habeas court to reexamine state-

court determinations on state-law questions.” 

Here, Horton’s habeas petition raises

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Horton v. Warden, Trumbull Corr. Inst.

a federal constitutional question arising from a state-court determination. The magistrate judge

correctly stated that Horton’s habeas issue is whether “an error of state law has resulted in a denial

of a federal constitutional right”—specifically, the due process right to present a complete defense.

(R&R, R. 10, at 11.) Horton thus raised a cognizable habeas issue. See Bey v. Bagley, 

, 520 (6th Cir. 2007) (finding cognizable on habeas review a claim that the admission of “other

acts” evidence as a matter of state evidentiary law was so prejudicial that it violated due process);

Taylor v. Withrow, 

, 851 (6th Cir. 2002) (holding that “failure to instruct a jury on

self-defense when the instruction has been requested and there is sufficient evidence to support such

a charge violates a criminal defendant’s rights under the due process clause”).

                                                 III.

       The second question before this Court is whether the Ohio Court of Appeals’ decision

involved an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1).1

The Warden argues that Horton cannot succeed on his habeas claim because he has failed to

demonstrate either that a criminal defendant has a clearly established due process right to a jury



       1
         Horton first alleged a violation of due process and Trombetta on direct appeal to the Ohio
Supreme Court, and not to the Ohio Court of Appeals, where he merely claimed plain error.
However, the Ohio Supreme Court dismissed Horton’s appeal as “not involving a substantial
constitutional question” in a one-sentence order. Accordingly, although for § 2254(d) purposes the
relevant state-court adjudication on the merits of the claim is the Ohio Supreme Court order, we will
treat that order as incorporating the reasoning used by the Ohio Court of Appeals in finding no abuse
of discretion by the trial court, and determine whether that reasoning, or any other arguments or
theories, could have supported the Supreme Court’s dismissal of his constitutional claim. See
Harrington v. Richter, --- U.S.---, 

, 784, 786 (2011) (holding that where a state court
decision is unaccompanied by an explanation, the habeas petitioner must nevertheless show there
was no reasonable basis on which the state court could have denied relief).

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Horton v. Warden, Trumbull Corr. Inst.

instruction on self-defense, or that, even assuming such a right exists under clearly established law,

the Ohio Court of Appeals’ adjudication of that claim involved an unreasonable application of such

law.

       This Court reviews de novo the district court’s decision to grant or deny a habeas corpus

petition. Mitzel v. Tate, 

, 530 (6th Cir. 2001). “When the district court relies on a

transcript from the petitioner’s state trial and makes no independent determinations of fact, we

review the district court’s factual findings de novo, as well.” Bugh v. Mitchell, 

, 500

(6th Cir. 2003) (citation omitted).

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “this

Court reviews deferentially state court decisions affirming the conviction of a habeas petitioner.”

Maldonado v. Wilson, 

, 474 (6th Cir. 2005). We presume state-court factual findings,

including those “made by a state court of appeals based on the state trial record,” to be correct,

unless the habeas petitioner is able to rebut that presumption by clear and convincing evidence.

(citation omitted). Habeas corpus relief is unavailable with respect to any

claim adjudicated on the merits in state court unless the state-court adjudication:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or

       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Clearly established federal law refers only to the decisions of the Supreme

Court, not those of lower federal courts. Williams v. Taylor, 

, 412 (2000). However,


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Horton v. Warden, Trumbull Corr. Inst.

AEDPA does not require the Supreme Court to have decided the precise case for clearly established

law to exist. 

. Clearly established federal law “includes legal principles and

standards enunciated in the [Supreme] Court’s decisions[,]” rather than just “bright-line rules laid

down by the Court.” 

decision unreasonably applies clearly established federal law “if the state court

either unreasonably extends a legal principle from [Supreme Court] precedent to a new context

where it should not apply or unreasonably refuses to extend that principle to a new context where

it should apply.” 

. In addition, “a state-court decision involves an

unreasonable application of [Supreme Court] precedent if the state court identifies the correct

governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case.” 

application clause requires the state court decision to be more than

incorrect or erroneous.” Lockyer v. Andrade, 

, 75 (2003) (citation and internal quotations

omitted).   “The state court’s application of clearly established law must be objectively

unreasonable.” 

Although AEDPA does not completely bar “federal court

relitigation of claims already rejected in state proceedings[,]” habeas relief is only a “guard against

extreme malfunctions in the state criminal justice system, not a substitute for ordinary error

correction through appeal.” 

(citations and internal quotation marks

omitted). “Under § 2254(d), a habeas court must determine what arguments or theories supported

or, as here, could have supported, the state court’s decision; and then it must ask whether it is

possible fairminded jurists could disagree that those arguments or theories are inconsistent with the

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No. 11-3191
Horton v. Warden, Trumbull Corr. Inst.

holding in a prior decision of th[e Supreme] Court.” Wogenstahl v. Mitchell, 

, 327 (6th

Cir. 2012) (quoting 

).

        A. Clearly Established Federal Law

        The due process clause of the Fourteenth Amendment affords criminal defendants “a

meaningful opportunity to present a complete defense.” 

. Further, “a

defendant is entitled to an instruction as to any recognized defense for which there exists evidence

sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 

, 63

(1988) (citing Stevenson v. United States, 

(1896)). In Taylor v. 

–52, this Court reasoned that a “necessary corollary” of the principle set forth in Trombetta is

the rule that a criminal defendant has a due process right to a jury instruction on self-defense. See

that ... failure to instruct a jury on self-defense when the instruction has been requested

and there is sufficient evidence to support such a charge violates a criminal defendant’s rights under

the due process clause.”).2




        2
          In Taylor, we ultimately reversed the district court’s grant of habeas upon finding that the
state-court’s determination that insufficient evidence existed to warrant a jury instruction on self-
defense did not involve an unreasonable application of clearly established federal 

. Based on that reversal, this Court later described as dicta the purported holding in Taylor that
failure to instruct a jury on self-defense when the instruction is requested and supported by sufficient
evidence violates the due process clause. Newton v. Million, 

, 878–79 (6th Cir. 2003).
Newton ultimately distinguished Taylor on the basis that “Newton’s claim does not rest on the
court’s denial of a self-defense instruction. Rather, he challenges the specific content of the
instruction,” namely that the trial court did not instruct the jury concerning multiple aggressors. 

Without disturbing the holding in Taylor, we concluded that the Supreme Court had not
clearly established a right to a specific jury instruction. 

11-3191
Horton v. Warden, Trumbull Corr. Inst.

       Although there is “no Supreme Court decision unmistakably setting down this precise rule,”

we noted in Taylor that “relevant [Supreme Court] precedents include not only bright-line rules but

also the legal principles and standards flowing from precedent.” 

(citing 

). If a trial court could refuse to instruct the jury on a criminal defendant’s theory of defense

sufficiently supported by the evidence, the right to present a defense would be meaningless. 

of Evidence Under Ohio Law

       We now turn to whether the Ohio Court of Appeals unreasonably applied clearly established

federal law when it determined that Horton’s due process rights were not violated by the trial court’s

refusal to instruct the jury on self-defense. “When assessing whether a state court’s application of

federal law is unreasonable, ‘the range of reasonable judgment can depend in part on the nature of

the relevant rule’ that the state court must apply.” Renico v. Lett, 

, 1864 (2010)

(quoting Yarborough v. Alvarado, 

, 664 (2004)). A federal habeas court must consider

the specificity of the rule that the state court applied. 

. “The more

general the rule, the more leeway courts have in reaching outcomes in case-by case determinations.”

trial court’s determination whether Horton presented sufficient evidence to warrant

a jury instruction on self-defense involved a “substantial element of judgment.” 

raise self-defense under Ohio law, a defendant has the burden of producing sufficient evidence for

each of the following: “(1) the slayer was not at fault in creating the situation giving rise to the

affray; (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily


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Horton v. Warden, Trumbull Corr. Inst.

harm and that his only means of escape from such danger was in the use of such force; and (3) the

slayer must not have violated any duty to retreat or avoid the danger.” State v. Melchior, 

, 199 (Ohio 1978) (citations omitted). Evidence is sufficient when, viewed in a light most

favorable to the defendant, and without considering the question of credibility, it raises the question

of self-defense in the mind of a reasonable juror. State v. Belanger, 

, 1269 (Ohio

Ct.App.2010). “If the evidence generates only a mere speculation or possible doubt [rather than

reasonable doubt of guilt], such evidence is insufficient to raise the affirmative defense, and

submission of the issue to the jury will be unwarranted.” 

.

       Here, there is evidence that, just before the gun was fired, Joiner ran up to the passenger side

window and reached inside the vehicle to hit Horton with a beer bottle. There is no evidence,

however, that Horton knew Joiner was swinging a beer bottle, or even holding a beer bottle, at the

moment when Horton fired his gun.

       Fairminded jurists could thus disagree as to whether the evidence is sufficient to raise the

question in the mind of a reasonable juror whether Horton had a bona fide belief that he was in

imminent danger of death or great bodily injury at the time he fired the gun, and that his only means

of escape from that danger was the use of deadly force. Accordingly, the district court erred in

finding that the state court adjudication of Horton’s due process claim involved an unreasonable

application of clearly established federal law. See 

(“A state court’s

determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s decision.” (internal quotation marks omitted)).


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                                            IV.

       For the foregoing reasons, we REVERSE the judgment of the district court.




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