Juan H. v. Allen

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2005
• Docket: 04-15562
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 08 2005

CATHY A. CATTERSON, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

JUAN H., No. 04-15562

Petitioner - Appellant, D.C. No. CV-02-02018-CW Northern District of California, v. Oakland

WALTER ALLEN, III, ORDER Respondent - Appellee.

Before: D.W. NELSON, KLEINFELD, and GOULD, Circuit Judges.

The opinion filed on June 2, 2005, and published at 408 F.3d 1262, is

AMENDED as follows:

The content of footnote 8 states:

Aside from determining whether a state court has unreasonably applied a

provision of federal law or the Constitution, under § 2254(d)(2), a federal

court may also grant a writ of habeas corpus if a material factual finding of

the state court reflects “an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). In making this inquiry, we must presume that any state court

factual finding is correct, and the petitioner has the burden of proving otherwise by clear and convincing evidence. Id. at § 2254(e)(1); Wiggins v.

Smith, 539 U.S. 510, 528 (2003).

The content of footnote 8 is deleted in its entirety and replaced with the

following language:

Aside from determining whether a state court has unreasonably applied a

provision of federal law or the Constitution, under § 2254(d)(2), a federal

court may also grant a writ of habeas corpus if a material factual finding of

the state court reflects “an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2); Wiggins v. Smith, 539 U.S. 510, 528 (2003).

The second citation following the third sentence in section V.A. states:

Torres v. Mullin, 317 F.3d 1145, 1163 (10th Cir. 2003) (Henry, J.,

concurring in part and dissenting in part);

This citation to Torres v. Mullin, 317 F.3d 1145, 1163 (10th Cir. 2003)

(Henry, J., concurring in part and dissenting in part) is deleted in its entirety.

2 IT IS SO ORDERED.