                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RODGER EINSTEIN HAYWARD,                         No. 09-15807

              Petitioner-Appellant,              D.C. No. 3:91-CV-147-LRH-VPC

  v.
                                                 MEMORANDUM *
SALVADOR GODINEZ, et al.,

              Respondents-Appellees.



                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                       Argued and Submitted May 11, 2010
                            San Francisco, California




Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.**

       Rodger Einstein Hayward appeals the denial of his habeas petition under 28

U.S.C. § 2254. Because Hayward filed his original federal habeas petition in 1991,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Patricia C. Fawsett, Senior United States District Judge
for the Middle District of Florida, sitting by designation.
the Anti-Terrorism and Effective Death Penalty Act of 1996 does not apply. E.g.,

Sechrest v. Ignacio, 549 F.3d 789, 802 (9th Cir. 2008).        Accordingly, “[l]egal

questions and mixed questions of law and fact are reviewed de novo.” Hovey v. Ayers,

458 F.3d 892, 900 (9th Cir. 2006). Factual findings made by the district court are

reviewed for clear error, and factual findings of state courts are “entitled to a

presumption of correctness unless they are not fairly supported by the record.” Id.

      First we must determine whether the respondents complied with this Court’s

June 10, 1994 mandate for a “delayed appeal” by affording Hayward a modified state

habeas proceeding instead of a direct appeal from his conviction and sentence. The

Nevada courts applied the direct appeal standards of review in the modified state

habeas proceeding, and Hayward was afforded counsel. To the extent Hayward

complains about the lack of process for challenging the effectiveness of his counsel

during the modified state habeas proceeding, it is premature. Hayward received the

functional equivalent of a direct appeal through the modified state habeas proceeding,

and we find that the respondents complied with this Court’s June 10, 1994 mandate.

      Hayward’s remaining challenges to his underlying conviction are without merit.

We adopt the reasoning of the district court.

      AFFIRMED.




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