Buckley

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN A. BUCKLEY, 

Petitioner-Appellee, No. 03-55045 v.  D.C. No.

CV-00-02435-JSL

C. A. TERHUNE, Director of the

CDC, OPINION

Respondent-Appellant.  Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding

Argued and Submitted January 9, 2004—Pasadena, California

Filed January 25, 2005

Before: Stephen S. Trott, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Trott; Dissent by Judge Bea Noah P. Hill, Deputy Attorney General, Los Angeles, Califor- nia, for the respondent-appellant.

Allen Bloom, San Diego, California, for the petitioner- appellee.

OPINION

TROTT, Circuit Judge:

C.A. Terhune, Director of the California Department of Corrections, (“State”) appeals the district court’s grant of Brian Buckley’s petition for a writ of habeas corpus. The State’s appeal is timely, and we have jurisdiction under 28 U.S.C. § 2253. The district court did not afford the state court’s determination of facts the appropriate level of defer- ence.…