Henry
Henry v. Marshall
Opinion
Lead Opinion
MEMORANDUM *
Robert Henry appeals the district court’s denial of his petition for habeas corpus. We affirm as to the issue of his Doyle rights 1 but remand to the district court for an evidentiary hearing on the uncertified issue of actual innocence. Because the parties are familiar with the facts and the procedural history, we will not recount it here.
I
The substantive provisions of AEDPA do not apply to this case. Phillips v. Woodford, 2161 F.3d 966, 973 (9th Cir.2001). Under pre-AEDPA habeas review, we presume the correctness of state court factual findings unless the record does not support the findings, or unless other defects, not at issue here, are present. 28 U.S.C. § 2254 (d); Kuhlmann v. Wilson, 477 U.S. 436, 459-60 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986); McKenzie v. Risley, 842 F.2d 1525 ,. 1531 (9th Cir.1988) (en banc). Under preAEDPA law, we review questions of law and mixed questions of law and fact de novo, owing no deference to a state court’s legal conclusions. Williams v. Taylor, 529 U.S. 362, 400 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring) (explaining pre-AEDPA standard of review).