United States District Court, D. Oregon
Kristina Hellman, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Nick M. Kallstrom, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
AMENDED FINDINGS AND RECOMMENDATION 
JOHN JELDERKS, Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court conviction for Murder. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#6) should be denied.
Petitioner is currently housed within the Oregon Department of Corrections serving a life sentence for murder. During his post - conviction review, the Oregon Court of Appeals set out the backgr ound of this case as follows:
At the time of the crime, petitioner was 32 years old and the victim was 52. Their relationship was consistently described as turbulent. According to petitioner's mother and other witnesses, petitioner had a history of depression that worsened after he became involved with the victim. The victim was emotionally volatile and had frequent angry outbursts; one witness, a neighbor, testified that the victim would be nice and happy one moment and then flip the switch, she's yelling and screaming.' The victim also had a history of alcohol and drug abuse, as well as dental and other physical problems that caused her significant pain.
Petitioner and the victim lived together for several years before the murder, but, on several occasions, petitioner either left or asked the victim to move out as a result of the conflicts between them. Those separations lasted anywhere from a few days to one and one-half months. Petitioner testified that the victim often became full of rage and would storm around the house, slamming doors and screaming at petitioner. Petitioner and his mother both testified to one incident in July 2003 when they came back from a weekend trip to the coast to find that the victim had splattered blood all over the walls and surfaces of the home where petitioner and the victim then lived. The victim claimed that she had cut her finger and was looking for a Band-Aid. Petitioner also testified that the victim had threatened suicide on several occasions, although he also indicated that she had never actually made a suicide attempt while she was with him.
There was evidence of prior physical violence between the couple; twice petitioner came to work with a black eye; another time, he had scratch marks on his neck, where, he said, the victim had tried to choke him. Although petitioner was described as a shy, quiet person who was not generally aggressive, there was also evidence that, in previous altercations with the victim, petitioner became anxious to the point where he was physically violent toward her. Petitioner himself testified as to two incidents in which the victim would come at me physically and just push me and push me and push me until I would have to push her back.' In one of those incidents, petitioner testified that he pushed the victim and she fell onto the bed frame, injuring her ankle; another time, he pushed her and she fell onto a coffee table, badly cutting her calf.
The wife of one of petitioner's coworkers testified that petitioner sometimes stayed at their house because [h]e wanted to get away from [the victim] because she was being physically abusive to him and he didn't want to hurt her and so he stayed away.' Petitioner also testified that he slept in his truck to avoid confrontations with the victim; several months before the murder, petitioner moved into the spare room in their house because he was so upset by the victim's chaotic behavior. Friends and family members testified that petitioner stayed with the victim because he felt responsible for her and because he worried that she did not have a job or financial resources and would not be able to sustain herself without him.
A few days before the murder, petitioner and the victim spent a nice evening together in celebration of petitioner's birthday. Later that night, however, the victim became upset and angry, slamming doors and screaming. Petitioner testified that
[the victim] was saying she wanted people * * * to run into the house and kill her. She wanted-she screamed out to God to take her out. She screamed things like, I'm going to rob a bank, I m going to go down and kill my mom, just all those kind of -I mean, just she was sick of the pain she said.'
According to petitioner, he was unable to console her. The following day, petitioner went to work and, when he came home, the house was a mess- there were dishes all over the place, broken dishes, glasses, things strewn around the house, her clothes. The next day, petitioner again went to work. When he came home that evening, he avoided the victim, staying in the master bedroom for the most part. However, he could hear the victim in other parts of the house slamming doors and saying the same things over and over about having'someone come in and take her out. At some point, petitioner decided to leave and began packing some clothes. When the victim came into the bedroom and realized what petitioner was doing, she ran out of the room and came back, flicking blood on him and pushing him, telling him that she would not let him leave. Petitioner testified that he pushed her off of him and onto the bed. He then grabbed her and pushed her to the ground so that she was in a kneeling position and he was holding her hair. He asked her if she really want [ed] to die, reached into his closet, pulled out a gun, and asked her again, are you sure this is what you want? When she said yes, ' he shot her twice in the head.
The trial court rejected petitioner's defense of extreme emotional disturbance and found him guilty of murder. The trial court concluded that petitioner established the first component of the defense-that the homicide was committed under an extreme emotional disturbance, [footnote omitted] but failed to prove the second-that 11such disturbance is not the result of the person's own intentional, knowing, ...