                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              AUG 13 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SAMUEL W. SWOOPES,                               No. 11-16918

              Petitioner - Appellant,            D.C. No. 4:93-cv-00471-DCB

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN; et al.,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                           Submitted August 11, 2014**
                             San Francisco, California

Before: SILVERMAN and CLIFTON, Circuit Judges, and WATSON, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Derrick Kahala Watson, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
                                         -2-
      Arizona state prisoner Samuel Swoopes appeals the district court’s July 21,

2011 order denying his petition for writ of habeas corpus. We review de novo, see,

e.g., Carrera v. Ayers, 699 F.3d 1104, 1106 (9th Cir. 2012) (en banc), and we

reverse and remand.

      Swoopes filed his original federal petition in 1993, before the enactment of

the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Review of

Swoopes’ petition is accordingly governed by the pre-AEDPA standard of review.

See, e.g., Sivak v. Hardison, 658 F.3d 898, 905 (9th Cir. 2011). The district court,

however, applied the AEPDA standard, and denied relief, finding that the state

court did not unreasonably apply federal law. Compare 28 U.S.C. § 2254(d)(1)

(1996) with 28 U.S.C. § 2254(d) (1966). Under the pre-AEDPA standard, while a

federal habeas court does not defer to state courts’ ultimate determination of mixed

questions of law and fact, such as questions of harmlessness, it usually does defer

to the factual findings underlying such determinations. See, e.g., Mayfield v.

Calderon, 229 F.3d 895, 901 (9th Cir. 2000). Because the district court applied the

incorrect standard to its analysis of the petition, we reverse and remand for
                                          -3-
consideration by the district court, in the first instance, of petitioner’s claims under

the appropriate standard.1

      REVERSED and REMANDED.




      1
         We decline to expand the certificate of appealability. The uncertified
issues are not before us and are not subject to this remand.
