O'Neal Underwood v. Robert G. Borg, Warden

5 F.3d 540 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. O'Neal UNDERWOOD, Plaintiff-Appellee, v. Robert G. BORG, Warden, Defendant-Appellant. No. 92-16725. United States Court of Appeals, Ninth Circuit. Submitted July 14, 1993. * Decided Aug. 27, 1993. Appeal from the United States District Court for the Northern District of California; No. CV-90-03353-MHP, Marilyn H. Patel, District Judge, Presiding. N.D.Cal. AFFIRMED. Before WALLACE, Chief Judge, and D.W. NELSON and O'SCANNLAIN, Circuit Judges. ORDER 1 Borg appeals from the district court's issuance of a writ of habeas corpus based upon acknowledged Beeman error. The district court exercised jurisdiction under 28 U.S.C. Sec. 2254 . We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. Sec. 2253 . For the reasons stated in the district court's September 23 and October 28, 1992, orders, we conclude that the erroneous jury instruction "had substantial and injurious effect or influence in determining…