Stephen Ho v. Thomas L. Carey, Warden Attorney General of the State of California

Opinion by Judge ALARCÓN; Dissent by Judge HUG.

ORDER AND OPINION

ORDER

The Opinion filed February 26, 2003, slip op. 2575, and appearing at 322 F.3d 625 (9th Cir.2003), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. The Clerk is directed to file the attached opinion and the attached dissent.

The petition for rehearing and petition for rehearing en banc are DENIED as moot. Subsequent petitions for rehearing and rehearing en banc may be filed.

OPINION

Petitioner Stephen Ho, a California state prisoner, appeals from the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . Ho asserts that he was deprived of his constitutional right to have a jury decide every element of the offense of second-degree murder based on implied malice because the trial *590 court erroneously instructed the jury that the offense was a general-intent crime. We agree and reverse the district court’s denial of the petition.

I

Ho was convicted of second-degree murder based on implied malice, with an enhancement for the use of a gun. The trial court denied Ho’s motion for a new trial and sentenced him to a…

dissenting:

I respectfully dissent.

The Supreme Court recently emphasized and refined the standard under which we review a petition for habeas corpus from a state court conviction. Lockyer v. Andrade, — U.S. -, 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003). The Court noted that the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (d)(1) (AEDPA) circumscribes a federal habeas court’s review of a state-court decision. Section 2254(d) provides:

The Court stated, “[W]e first decide what constitutes ‘clearly established federal law as determined by the Supreme Court of the United States.’ ” Andrade, 123 S.Ct. at 1172 . The Court further stated that “under the unreasonable application clause the federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this court’s decisions, but unreasonably applies that principle to the fact of the prisoner’s case.” Id. at 1174 . (quoting from Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. 1495 ). The Court noted that it is not enough that the federal court is left with a firm conviction that the state court was incorrect or erroneous. Rather, that application must be…

332 F.3d 587 Stephen HO, Petitioner-Appellant, v. Thomas L. CAREY, * Warden; Attorney General of the State of California, Respondents-Appellees. No. 01-16823. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 14, 2003. Filed June 5, 2003. COPYRIGHT MATERIAL OMITTED Dennis P. Riordan and Donald M. Horgan, Riordan & Rosenthal, San Francisco, CA; Marc Zilversmit, San Francisco, CA, for the petitioner-appellant. Mark S. Howell, Deputy Attorney General of the State of California, San Francisco, CA, for the respondents-appellees. Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-99-04580-SI. Before HUG, ALARCÓN, and GRABER, Circuit Judges. 1 Opinion by Judge ALARCÓN; Dissent by Judge HUG. ORDER AND OPINION ORDER 2 The Opinion filed February 26, 2003, slip op. 2575, and appearing at 322 F.3d 625 (9th Cir.2003), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. The Clerk is directed to file the attached opinion and the attached dissent. 3 The petition for rehearing and petition for rehearing en…