Lara

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANASTACIO LARA,  No. 05-16055 Petitioner-Appellant, v.  D.C. No.

CV-04-01957-CRB

S. RYAN, Warden,

OPINION

Respondent-Appellee.  Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted May 19, 2006—San Francisco, California

Filed August 1, 2006

Before: Betty B. Fletcher, Alex Kozinski, and Raymond C. Fisher, Circuit Judges.

Opinion by Judge B. Fletcher COUNSEL

Maitreya Badami, San Francisco, California, for the petitioner-appellant.

Bill Lockyer, Robert R. Anderson, Gerald A. Engler, Peggy S. Ruffra, and David M. Baskind (argued), San Francisco, California, for the respondent-appellee. 8556 LARA v. RYAN

OPINION

B. FLETCHER, Circuit Judge:

Appellant Anastacio Lara (“Lara”) was convicted by a jury of two counts of attempted murder and two counts of non- aggravated mayhem. The jury was instructed that it could convict him of attempted murder under either a proper theory of express malice or an improper…