                               FOR PUBLICATION                              FILED
                     UNITED STATES COURT OF APPEALS                           JUL 08 2005

                                                                       CATHY A. CATTERSON, CLERK
                            FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS




JUAN H.,                                         No. 04-15562

          Petitioner - Appellant,                D.C. No. CV-02-02018-CW
                                                 Northern District of California,
  v.                                             Oakland

WALTER ALLEN, III,
                                                 ORDER
          Respondent - Appellee.


Before: D.W. NELSON, KLEINFELD, and GOULD, Circuit Judges.

       The opinion filed on June 2, 2005, and published at 408 F.3d 1262, is

AMENDED as follows:

       The content of footnote 8 states:

       Aside from determining whether a state court has unreasonably applied a

       provision of federal law or the Constitution, under § 2254(d)(2), a federal

       court may also grant a writ of habeas corpus if a material factual finding of

       the state court reflects “an unreasonable determination of the facts in light

       of the evidence presented in the State court proceeding.” 28 U.S.C. §

       2254(d)(2). In making this inquiry, we must presume that any state court

       factual finding is correct, and the petitioner has the burden of proving
      otherwise by clear and convincing evidence. Id. at § 2254(e)(1); Wiggins v.

      Smith, 539 U.S. 510, 528 (2003).



      The content of footnote 8 is deleted in its entirety and replaced with the

following language:

      Aside from determining whether a state court has unreasonably applied a

      provision of federal law or the Constitution, under § 2254(d)(2), a federal

      court may also grant a writ of habeas corpus if a material factual finding of

      the state court reflects “an unreasonable determination of the facts in light

      of the evidence presented in the State court proceeding.” 28 U.S.C. §

      2254(d)(2); Wiggins v. Smith, 539 U.S. 510, 528 (2003).



      The second citation following the third sentence in section V.A. states:

      Torres v. Mullin, 317 F.3d 1145, 1163 (10th Cir. 2003) (Henry, J.,

      concurring in part and dissenting in part);



      This citation to Torres v. Mullin, 317 F.3d 1145, 1163 (10th Cir. 2003)

(Henry, J., concurring in part and dissenting in part) is deleted in its entirety.




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IT IS SO ORDERED.




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