McCullough

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED MCCULLOUGH,  No. 07-16049 Petitioner-Appellee, v.  D.C. No.

CV-05-02207-MHP

ANTHONY KANE,

OPINION

Respondent-Appellant.  Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, Senior District Judge, Presiding

Argued and Submitted December 3, 2007 Withdrawn December 4, 2007 Resubmitted December 27, 2010 San Francisco, California

Filed December 27, 2010

Before: Betty B. Fletcher, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge B. Fletcher; Dissent by Judge Rawlinson

20611 20614 MCCULLOUGH v. KANE

COUNSEL

Daniel Henry Bookin, O’Melveny & Myers LLP, San Fran- cisco, California, Attorney for the petitioner-appellee.

Amber N. Wipfler, Office of the California Attorney General, San Francisco, California, Attorney for the respondent- appellant.

OPINION

B. FLETCHER, Circuit Judge:

In 1983, at the age of 21, Fred McCullough was convicted of murder and sentenced to 15 years to life in prison. While in prison, McCullough earned his GED, his associate’s degree,…