Pearson

dissenting from the denial of rehearing en banc,

In one of our oddest habeas decisions to date, the Ninth Circuit has not just misinterpreted the language of AEDPA, 28 U.S.C. § 2254 (d), but has actually rewritten it. Contrary to the plain language of AEDPA, Pearson holds that a California prisoner is entitled to habeas relief because the state court’s decision was inconsistent with California law as determined by the California Supreme Court, or was based on an unreasonable factual determination of a state law issue. Pearson v. Muntz, 606 F.3d 606, 611-12 (9th Cir.2010) (per curiam). Not only does this holding rewrite AEDPA, it also contradicts the entire body of Supreme Court AEDPA jurisprudence. In failing to rehear this case en banc, we bind this circuit to an analytic approach that will consistently generate wrong decisions in the hundreds of challenges to California parole decisions adjudicated by federal courts in this circuit each year. Therefore, I respectfully dissent from the denial of rehearing en banc.

I

After pleading guilty to second degree murder in 1987, California state prisoner Kenneth Pearson became eligible for parole in 1995. After denying his application…

Order; Dissent to Order by Judge IKUTA; PER CURIAM Opinion.

*541 ORDER

The majority opinion filed May 24, 2010, slip op. 7791, and appearing at 606 F.3d 606 (9th Cir.2010), is hereby amended as follows:

With these amendments, the panel has voted to deny the petition for panel rehearing and the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R.APP. P. 35.

No further petitions for rehearing or rehearing en banc will be entertained.