Arreguin

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 686 (b)(1)(B), the Court has reviewed the petition, all of the records and files herein, and the attached Report and Recommendation of Magistrate Judge, and the objections to the Report and Recommendation that were filed on October 9, 1997. After having made a de novo determination of the portions to which objections were directed, the Court concurs with and adopts the findings and conclusions of the magistrate judge that the trial court’s failure to instruct the jury on the “major participant” language required by CaLPenal Code § 190.2(d) violated petitioner’s due process rights under the Fourteenth Amendment of the United States Constitution.

The government makes the following objections: (1) that under Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), the Court is barred from granting habeas relief because there is no clear federal precedent extending “structural defect” analysis to state instructional error relating to sentencing, (2) petitioner’s liberty interest in a trial free from structural defects does not extend to instructions relating to sentencing; and (3)…