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BELMONTES v. BROWN

No. 01-99018.

414 F.3d 1094 (2005)

Fernando BELMONTES, Jr., Petitioner-Appellant, v. Jill L. BROWN, Warden, for the California State Prison at San Quentin, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

July 15, 2005.

Attorney(s) appearing for the Case

Eric S. Multhaup, Mill Valley, CA; Christopher H. Wing, Sacramento, CA, for the petitioner-appellant.

Mark A. Johnson, Deputy Attorney General, Sacramento, CA, for the respondent-appellee.

Before REINHARDT, O'SCANNLAIN, and PAEZ, Circuit Judges.

Opinion by Judge REINHARDT. Opinion concurring in part and dissenting in part by Judge O'SCANNLAIN.

REINHARDT, Circuit Judge.

I. PREAMBLE

On July 15, 2003, we filed an opinion in this case holding that there is a reasonable probability that as a result of instructional error the jury did not consider constitutionally mitigating evidence at the penalty phase. We remanded to the district court for the issuance of a writ of habeas corpus vacating the...

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