                                                                              FILED
                            NOT FOR PUBLICATION                                FEB 26 2010

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




                             FOR THE NINTH CIRCUIT



KEITH WILLIAMS,                                    No. 08-56880

              Petitioner - Appellant,              D.C. No. 3:05-cv-02150-J-CAB

  v.
                                                   MEMORANDUM *
C. M. HARRISON,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Napoleon A. Jones, District Judge, Presiding

                       Argued and Submitted February 5, 2010
                                Pasadena, California

Before: SCHROEDER, FISHER, and N.R. SMITH, Circuit Judges.

       1. Williams claims that he was deprived his constitutional right to due

process when, despite giving oral instructions regarding the defense of duress,

the district court failed to provide the jury with written jury instructions on the

defense of duress while emphasizing the importance of the written instructions.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We disagree. “An omission, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145,

155 (1977). The court’s failure to provide a written instruction on the defense of

duress did not “‘so infect[] the entire trial that the resulting conviction violate[d]

due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v.

Naughten, 414 U.S. 141, 147 (1973)).

      2. Williams claims that his amended habeas claims should have been heard

by the district court, because the motions to recall the remittitur that he filed in the

California Court of Appeal and California Supreme Court had tolled the statute of

limitations, pursuant to 28 U.S.C. § 2244(d)(2). “An application to recall the

remittitur is a unique California post-conviction remedy whereby the petitioner

asks the Court of Appeal or Supreme Court to reassert its jurisdiction over a case

after it has relinquished that jurisdiction by issuing a remittitur following the final

determination of the appeal.” Hayward v. Stone, 496 F.2d 844, 845 (9th Cir.

1974); see also Gallenkamp v. Superior Court, 270 Cal. Rptr. 346, 349-50 (Cal. Ct.

App. 1990).

      A motion to recall the remittitur can reinstate a direct appeal. People v.

Mutch, 482 P.2d 633, 637 (Cal. 1971). However, a motion to recall the remittitur

can also act as a habeas petition. Id. Thus, depending on the claims raised, a


                                            2
motion to recall the remittitur may serve as a habeas petition, thus tolling the

statute of limitations for filing federal habeas claims. 28 U.S.C. § 2244(d)(2).

       We therefore AFFIRM IN PART, REVERSE IN PART, and REMAND for

a determination as to whether the claims in the motions to recall the remittitur are

such that the motions should be treated as state habeas petitions. The California

courts have permitted recall of the remittitur to function equivalently to a writ—or

in its place—when a petitioner has alleged ineffective assistance of appellate

counsel, see In re Smith, 474 P.2d 969, 976 (Cal. 1970); In re Grunau, 86 Cal.

Rptr.3d 908, 910-11 (Cal. Ct. App. 2008), and where “there is no material dispute

as to the facts relating to his conviction and . . . it appears that the statute under

which [the petitioner] was convicted did not prohibit his conduct.” Mutch, 482

P.2d at 637; see also People v. Hunter, 482 P.2d 658, 659 (Cal. 1971). If petitioner

asserted these habeas claims, the district court shall make determinations as to the

tolling of the statute of limitations and the merits of the amended claims.

       The parties are to bear their own costs.




                                             3
