Orrin W. Payne, Cross-Appellant v. Robert Borg, Warden, Cross-Appellee

ORDER AND OPINION

ORDER

The memorandum disposition filed October 2, 1992, is redesignated a published and authored opinion and amended in its entirety-

OPINION

Petitioner Orrin W. Payne was found guilty in state court of first degree murder and of a special circumstance that the murder was committed during the course of a burglary. Payne filed this petition for a writ of habeas corpus, contesting only the validity of the special circumstance finding, which resulted in a sentence of life imprisonment without the possibility of parole. The district court granted habeas relief. The state appeals its finding that there was insufficient evidence to prove, beyond a reasonable doubt, that Payne had the necessary intent to support his special circumstance conviction. Payne cross-appeals the district court’s denial of his two other due process claims: (a) that the state trial judge failed to make a sufficient finding on the intent issue; and (b) that the state *337 appellate court acted improperly in presuming the trial judge found the requisite intent. We affirm in part and reverse in part, with the effect that the state judgment stands.

BACKGROUND

I. Facts

The parties…

dissenting.

The panel correctly states that “the determination of factual issues by the state court, with a few specific exceptions, is ‘presumed to be correct.’ ” Opinion at 339 (quoting 28 U.S.C. § 2254 (d)). One of those specific exceptions, however, is when a federal court concludes that the record does not fairly support a factual determination made by the state court. 28 U.S.C. § 2254 (d)(8) (1988). Such is the case here: Judge Ware expressly found, pursuant to section 2254(d)(8), that the state court record did not support a factual determination that Payne intended to aid in the killing that occurred. Payne v. Borg, No. C 89-20395, at 8-12 (N.D.Cal. April 3, 1991) (order granting habeas corpus). Thus, undue deference to the state determination is inappropriate and inadequate to enforce the mandate of Jackson v. Virginia.

I agree with the majority that the evidence is sufficient to support a finding, beyond a reasonable doubt, that Payne restrained Mr. Hynan. I cannot agree, however, that the evidence establishes beyond a reasonable doubt that Payne restrained Mr. Hynan knowing Williams was going to kill Mrs. Hynan and intending to help him accomplish that purpose. See…

982 F.2d 335 Orrin W. PAYNE, Petitioner-Appellee, Cross-Appellant, v. Robert BORG, Warden, Respondent-Appellant, Cross-Appellee. Nos. 91-15678, 91-15867. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 12, 1992. Memorandum Filed Oct. 2, 1992. Order and Opinion Filed Dec. 10, 1992. As Amended on Denial of Rehearing and Rehearing En Banc March 3, 1993. Thomas A. Brady, Deputy Atty. Gen., San Francisco, CA, for respondent-appellant. Quin Denvir, Sacramento, CA, for petitioner-appellee. Appeal from the United States District Court for the Northern District of California. Before ALARCON, CYNTHIA HOLCOMB HALL and KLEINFELD, Circuit Judges. ORDER AND OPINION ORDER 1 The memorandum disposition filed October 2, 1992, is redesignated a published and authored opinion and amended in its entirety. OPINION KLEINFELD, Circuit Judge: 2 Petitioner Orrin W. Payne was found guilty in state court of first degree murder and of a special circumstance that the murder was committed during the course of a burglary. Payne filed this petition for a writ of habeas corpus, contesting only the validity of the special circumstance finding, which resulted in a sentence of life…