Taylor

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDY BERNARD TAYLOR,  No. 04-17517 Petitioner-Appellant, v.  D.C. No.

CV-02-05655-REC

GAIL LEWIS, Warden,

OPINION

Respondent-Appellee.  Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, Senior Judge, Presiding

Argued and Submitted June 13, 2006—San Francisco, California

Filed August 15, 2006

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and Sidney R. Thomas, Circuit Judges.

Opinion by Judge O’Scannlain; Concurrence by Judge Thomas

9665 9668 TAYLOR v. LEWIS

COUNSEL

Kevin G. Little, Fresno, California, argued the cause for the petitioner-appellant. Samya Burney, Fresno, California, was on the brief.

Justain P. Riley, Deputy Attorney General, Sacramento, Cali- fornia, argued the cause for the respondent-appellee, which filed no brief. Respondent-appellee provided the notification required by Circuit Rule 31-2.3. The court granted permission to argue pursuant to Fed. R. App. P. 31(c).

OPINION

O’SCANNLAIN, Circuit Judge:

In this habeas case we review whether it was an unreason-…