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HO v. NEWLAND

No. 01-16823.

322 F.3d 625 (2003)

Stephen HO, Petitioner-Appellant, v. Anthony NEWLAND, Warden of Solano State Prison; Attorney General of the State of California, Respondents-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed February 26, 2003.

Attorney(s) appearing for the Case

Dennis P. Riordan and Donald M. Horgan, Riordan & Rosenthal, San Francisco, CA; Marc Zilversmit, San Francisco, CA, for the petitioner-appellant.

Mark S. Howell, Deputy Attorney General of the State of California, San Francisco, CA, for the respondents-appellees.

Before: HUG, ALARCÓN, and GRABER, Circuit Judges.

Opinion by Judge ALARCÓN; Dissent by Judge HUG.

ALARCÓN, Senior Circuit Judge:

Petitioner Stephen Ho, a California state prisoner, appeals from the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Ho asserts that he was deprived of his constitutional right to have a jury decide every element of the offense of second-degree murder based on implied malice because the trial court erroneously instructed the...

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