Fernando Belmontes, Jr. v. Jeanne S. Woodford, Warden, for the California State Prison at San Quentin

concurring in part and dissenting in part:

The court properly affirms Judge Levi’s determination that there was no constitutional error in Belmontes’s convictions for first degree murder with special circumstances in state court. I am pleased to concur in its conclusions as to the guilt phase. Regrettably, as to the penalty phase, the majority strains mightily — and unpersuasively — to perceive constitutional error in the comprehensive and perfectly proper jury instructions given by the state trial judge. Because there simply is no such error, and the Supreme Court has expressly told us so, I must respectfully dissent from the court’s reversal of the district court’s denial of the petition for the writ with respect to the penalty phase.

Just over a decade ago, the Supreme Court in Boyde v. California, 494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990), interpreted the same jury instruction at issue today, “factor (k),” and concluded that it was constitutionally sound. The Court held that there was no “reasonable likelihood that the jury ... applied [factor (k) ] in a way that prevented] the consideration of constitutionally relevant evidence.” Id. at 380 , 110 S.Ct. 1190 .…

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

ORDER

The opinion and dissent filed on July 15, 2003 is hereby amended. The clerk shall file the amended opinion and dissent.

OPINION

In this pre-AEDPA death penalty case, Petitioner Fernando Belmontes, Jr., appeals the district court’s denial of his petition for writ of habeas corpus. Because the jury was not instructed that it must consider Belmontes’ principal mitigation evidence, which tended to show that he would adapt well to prison and would likely become a constructive member of society if incarcerated for life without possibility of parole, and because there is a *817 reasonable probability that the instructional error affected the jury’s decision to impose the death penalty on Belmontes, we grant the petition with respect to the penalty phase. We reject, however, those claims that seek relief from the judgment of conviction and the finding of special circumstances. Accordingly, we affirm the district court’s decision in part, reverse in part, and remand with instructions to issue a writ vacating the death sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime, Its…

350 F.3d 861 Fernando BELMONTES, Jr., Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, for the California State Prison at San Quentin, Respondent-Appellee. No. 01-99018. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 5, 2002. Filed July 15, 2003. Amended November 20, 2003. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Eric S. Multhaup, Mill Valley, California; Christopher H. Wing, Sacramento, California, for the petitioner-appellant. Mark A. Johnson, Deputy Attorney General, Sacramento, California, for the respondent-appellee. Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CV-89-00736-DFL. Before Stephen REINHARDT, DIARMUID F. O'SCANNLAIN and Richard A. PAEZ, Circuit Judges. ORDER AND AMENDED OPINION ORDER 1 Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN 2 The opinion and dissent filed on July 15, 2003 is hereby amended. The clerk shall file the amended opinion and dissent. OPINION 3 REINHARDT, Circuit…