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DOUGLAS v. JACQUEZ

No. 08-17478.

626 F.3d 501 (2010)

Gordon Andrew DOUGLAS, Petitioner-Appellant, v. Francisco JACQUEZ and Attorney General of the State of California, Respondents-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed November 24, 2010.

Attorney(s) appearing for the Case

Barry L. Morris , Attorney at Law, Walnut Creek, CA, for petitioner-appellant.

Edmund G. Brown , Attorney General of California, for respondents-appellees.

Opinion by Judge BEA; Dissent by Judge GRABER.

OPINION

BEA, Circuit Judge:

We are asked to decide whether a federal habeas court can order a state court to re-sentence a defendant under a lesserincluded offense that was not considered by the jury.

Gordon Andrew Douglas was convicted by a California jury of one count of first-degree murder in violation of California Penal Code § 187, and a separate count of arson of an inhabited structure in violation of California Penal Code § 451(b...

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