Juan H. v. Allen ( 2005 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 08 2005
CATHY A. CATTERSON, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JUAN H., No. 04-15562
Petitioner - Appellant, D.C. No. CV-02-02018-CW
Northern District of California,
v. Oakland
WALTER ALLEN, III,
ORDER
Respondent - Appellee.
Before: D.W. NELSON, KLEINFELD, and GOULD, Circuit Judges.
The opinion filed on June 2, 2005, and published at 408 F.3d 1262, is
AMENDED as follows:
The content of footnote 8 states:
Aside from determining whether a state court has unreasonably applied a
provision of federal law or the Constitution, under § 2254(d)(2), a federal
court may also grant a writ of habeas corpus if a material factual finding of
the state court reflects “an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). In making this inquiry, we must presume that any state court
factual finding is correct, and the petitioner has the burden of proving
otherwise by clear and convincing evidence. Id. at § 2254(e)(1); Wiggins v.
Smith, 539 U.S. 510, 528 (2003).
The content of footnote 8 is deleted in its entirety and replaced with the
following language:
Aside from determining whether a state court has unreasonably applied a
provision of federal law or the Constitution, under § 2254(d)(2), a federal
court may also grant a writ of habeas corpus if a material factual finding of
the state court reflects “an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2); Wiggins v. Smith, 539 U.S. 510, 528 (2003).
The second citation following the third sentence in section V.A. states:
Torres v. Mullin, 317 F.3d 1145, 1163 (10th Cir. 2003) (Henry, J.,
concurring in part and dissenting in part);
This citation to Torres v. Mullin, 317 F.3d 1145, 1163 (10th Cir. 2003)
(Henry, J., concurring in part and dissenting in part) is deleted in its entirety.
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IT IS SO ORDERED.
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