McNeil

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SALLY MARIE MCNEIL, 

Petitioner-Appellant, No. 01-56565 v.  D.C. No.

CV-99-01490-JM

RAYMOND L. MIDDLETON; BILL

LOCKYER, OPINION

Respondents-Appellees.  On Remand from the United States Supreme Court

Filed March 29, 2005

Before: Robert R. Beezer, Ferdinand F. Fernandez, and Richard A. Paez, Circuit Judges.

Opinion by Judge Fernandez; Dissent by Judge Paez COUNSEL

Charles R. Khoury, Jr., Wilton, New Hampshire, for the petitioner-appellant.

Warren P. Robinson, Deputy Attorney General, San Diego, California, for the respondent-appellee.

OPINION

FERNANDEZ, Circuit Judge:

We fully outlined the background of this case in our first opinion,1 and will not repeat all of its shocking details here. Suffice it to say that McNeil took a shotgun and fired it into the midsection of her husband while he was cooking. Not feeling that she had done enough damage, she then reloaded the weapon and shot him in the face. The first shot caused so much damage that his liver was protruding out of his skin; the second blew away…