                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

BRIAN JOSEPH STOLTIE,                      
               Petitioner-Appellee,               No. 07-56079
                v.
                                                   D.C. No.
                                                CV-06-00289-DDP
JAMES E. TILTON, Secretary of the
Department of Corrections,                         OPINION
            Respondent-Appellant.
                                           
         Appeal from the United States District Court
            for the Central District of California
         Dean D. Pregerson, District Judge, Presiding

                    Argued and Submitted
             August 6, 2008—Pasadena, California

                      Filed August 19, 2008

 Before: Stephen Reinhardt, Circuit Judge, Roger J. Miner,*
 Senior Circuit Judge and Marsha S. Berzon, Circuit Judge.

                        Per Curiam Opinion




   *The Honorable Roger J. Miner, Senior United States Circuit Judge for
the Second Circuit, sitting by designation.

                                11025
11026                  STOLTIE v. TILTON
                         COUNSEL

Jonathan Libby, Deputy Federal Public Defender, Los Ange-
les, California, for the petitioner-appellee.

Heather F. Crawford, Deputy Attorney General for the State
of California, San Diego, California, for the respondent-
appellant.


                          OPINION

PER CURIAM:

   We AFFIRM the district court’s decision, and adopt its
opinion in Stoltie v. California, reported at 501 F. Supp.2d
1252 (C.D. Cal. 2007), except for Section III.C., as to which
we express no view. As the state acknowledged at oral argu-
ment, even the state appellate court misunderstood the con-
fused and confusing explanation of reasonable doubt provided
to the jury by the trial judge. This error led it to apply in an
unreasonable manner clearly established Supreme Court law
regarding reasonable doubt. Sullivan v. Louisiana, 508 U.S.
275 (1993); Cage v. Louisiana, 498 U.S. 39 (1990), overruled
on other grounds by Estelle v. McGuire, 502 U.S. 62 (1991);
In re Winship, 397 U.S. 358 (1970).

  AFFIRMED.
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