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VALERIO v. CRAWFORD

No. 98-99033.

306 F.3d 742 (2002)

John Espiredion VALERIO, Petitioner-Appellant, v. Jackie CRAWFORD, Director of the Department of Prisons; E.K. McDaniel, Warden, Respondents-Appellees.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 24, 2001.

Filed September 17, 2002.

Attorney(s) appearing for the Case

Lawrence D. Wishart, Mary Beth Gardner, Reno, Nevada, for petitioner-appellant.

Frankie Sue Del Papa, David F. Sarnowski, Robert E. Wieland, Dorothy Nash Holmes, Office of the Attorney General, Las Vegas, NV, for respondent-appellee.

Franny A. Forsman, Michael Pescetta, Office of the Federal Public Defender, Las Vegas, NV, for Amicus Curiae.

Before SCHROEDER, Chief Judge, REINHARDT, O'SCANNLAIN, RYMER, T.G. NELSON, THOMAS, GRABER, W. FLETCHER, FISHER, PAEZ, and BERZON, Circuit Judges.

Rehearing En Banc Granted June 12, 2001.

Argued and Submitted En Banc September 24, 2001.

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge FISHER; Dissent by Judge RYMER.

OPINION

WILLIAM A. FLETCHER, Circuit Judge.

In this capital case, petitioner John Espiredion Valerio appeals the district court's dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We decide as follows:

First, we reverse...

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