Fernando Belmontes, Jr. v. Jill L. Brown, 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 conviction 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 on two separate occasions, 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.

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 *1141 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…

Opinion by Judge REINHARDT. Opinion concurring in part and dissenting in part by Judge O’SCANNLAIN.

I. PREAMBLE

On July 15, 20.03, we filed an opinion in this case holding that there is a reasonable probability that as a result of instructional error the jury did not consider constitutionally mitigating evidence at the penalty phase. We remanded to the district court for the issuance of a writ of habeas corpus vacating the death sentence. Belmontes v. Woodford, 350 F.3d 861 (9th Cir.2003). The warden timely petitioned the Supreme Court for a writ of certiorari. On March 28, 2005, the Supreme Court granted the writ, vacated our judgment, and remanded the case “for further consideration in light of Brown v. Payton, 544 U.S. -, 125 S.Ct. 1432 , 161 L.Ed.2d 334 (2005).” Brown v. Belmontes, — U.S. -, 125 S.Ct. 1697 , 161 L.Ed.2d 518 (2005) (mem.).

Upon careful consideration, we conclude that Payton does not affect our holding in the present case. Notwithstanding ’the similarity of the factual and legal issues, Payton was a post-AEDPA case and was decided under the highly deferential AED-PA standard, while the case before us is pre-AEDPA and is determined by the application of the…

414 F.3d 1094 Fernando BELMONTES, Jr., Petitioner-Appellant, v. Jill L. BROWN, Warden, for the California State Prison at San Quentin, * Respondent-Appellee. No. 01-99018. United States Court of Appeals, Ninth Circuit. July 15, 2005. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Eric S. Multhaup, Mill Valley, CA; Christopher H. Wing, Sacramento, CA, for the petitioner-appellant. Mark A. Johnson, Deputy Attorney General, Sacramento, CA, for the respondent-appellee. On Remand from the United States Supreme Court. D.C. No. CV-89-00736-DFL. Before REINHARDT, O'SCANNLAIN, and PAEZ, Circuit Judges. REINHARDT, Circuit Judge. I. PREAMBLE 1 On July 15, 2003, we filed an opinion in this case holding that there is a reasonable probability that as a result of instructional error the jury did not consider constitutionally mitigating evidence at the penalty phase. We remanded to the district court for the issuance of a writ of habeas corpus vacating the death sentence. Belmontes v. Woodford, 350 F.3d 861 (9th Cir.2003). The warden timely petitioned the Supreme Court for a writ of…