Mahoney

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD A. SMITH, 

Plaintiff-Appellant, No. 94-99003 v.  D.C. No.

CV-86-198-M-CCL

MICHAEL MAHONEY, Montana State Prison, OPINION Respondent-Appellee.  Appeal from the United States District Court for the District of Montana Charles C. Lovell, District Judge, Presiding

Argued April 6, 2009 Submitted March 5, 2010 Seattle, Washington

Filed March 5, 2010

Before: Betty B. Fletcher, Sidney R. Thomas and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Thomas; Dissent by Judge B. Fletcher

3449 3454 SMITH v. MAHONEY

COUNSEL

Cliff Gardner and Lazuli Whitt, Oakland, California, for the petitioner-appellant.

Mike McGrath, Montana Attorney General, and C. Mark Fowler, Assistant Attorney General, Helena, Montana, for the respondent-appellee.

OPINION

THOMAS, Circuit Judge:

Ronald Smith murdered two men, pled guilty to the crimes, requested capital punishment, and was sentenced to death. SMITH v. MAHONEY 3455 Shortly thereafter, Smith changed his mind and requested resentencing. He was resentenced…