During jury deliberations on appellant’s second trial for grand theft and making terrorist threats, the jury was having trouble with deliberations, and had sent the court a note which indicated that one juror was considering penalty in his decision. The court instructed the jury with CALJIC 17.41.1, and after another day of deliberations, the jury returned a guilty verdict. During deliberations on appellant’s prior convictions, one juror sent the trial court a note stating that he was opposed to the three strikes law. The court again instructed with CALJIC 17.41.1, and the jury unanimously found the prior convictions true. Appellant’s convictions were affirmed by the state court, and he filed a federal habeas petition. The appellate court here affirmed the denial of the habeas petition. There is no clearly established federal law determined by the Supreme Court which indicates that the use of CALJIC 17.41.1 was constitutionally improper in this case. The California Supreme Court’s decision to eliminate CALJIC 17.41.1 from the courts’ repertoire does not make it a clearly established unconstitutional instruction.