Patrick McKeever v. Kathy Allison

MEMORANDUM

Petitioner Patrick Keven McKeever appeals the district court’s denial of his petition under 28 U.S.C. § 2254 after refusing to reinstate Ground Three. The issues presented are (1) whether the district court abused its discretion in denying peti tioner’s request to reinstate Ground Three and (2) whether, on the merits, Ground Three presents a basis for habeas relief.

A district court abuses its discretion when it makes an error of law. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir.2009) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 , 110 S.Ct. 2447 , 110 L.Ed.2d 359 (1990)). Here, the district court first found that Montana v. Egelhoff, 518 U.S. 37, 56 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (1996), foreclosed a claim based on the exclusion of a voluntary intoxication defense. We do not question that conclusion; however, we find that petitioner’s original claim was broad enough to cover a challenge to the general intent instruction itself. See Maleng v. Cook, 490 U.S. 488, 493 , 109 S.Ct. 1923 , 104 L.Ed.2d 540 (1989) (pro se pleadings must be construed with deference). By its own terms, Ground Three complained of the trial court’s instruction that…