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PHELPS v. ALAMEDA

No. 02-15821.

366 F.3d 722 (2004)

Kevin PHELPS, Petitioner-Appellant, v. Edward ALAMEDA, Warden, Duel Vocational Institution, Tracy, California; People of the State of California ex rel. Bill Lockyer, Respondents-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed April 20, 2004.

Attorney(s) appearing for the Case

Robert J. Beles, Oakland, California, for the appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, and Juliet B. Haley, Deputy Attorney General, for the appellee.

Before: HALL, O'SCANNLAIN, and LEAVY, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether we should vacate, as improvidently granted, a Certificate of Appealability issued by a motions panel pursuant to the Antiterrorism and Effective Death Penalty Act.

I

Kevin Phelps was convicted of first degree murder in a California state court in 1995 and has exhausted all relevant state remedies. On May 15, 1998, he filed a habeas corpus petition in the Northern District of California one year and...

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