                                                                               FILED
                               NOT FOR PUBLICATION                              MAY 24 2012

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




                                FOR THE NINTH CIRCUIT



 PATRICK KEVEN MCKEEVER,                                  No. 09-55643

                  Petitioner-Appellant,                   D.C. No. 5:02-cv-01054-CJC-
                                                          MAN
      v.

 KATHY ALLISON, Warden,

                  Respondent-Appellee.                    MEMORANDUM *




                        Appeal from the United States District Court
                           for the Central District of California
                        Cormac J. Carney, District Judge, Presiding

                           Argued and Submitted March 9, 2012
                                  Pasadena, California

Before:          WARDLAW, Circuit Judge, BERZON, Circuit Judge, and WHYTE,**
                 District Judge.

           Petitioner Patrick Keven McKeever appeals the district court’s denial of his

petition under 28 U.S.C. § 2254 after refusing to reinstate Ground Three. The


  *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
  **
      The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
issues presented are (1) whether the district court abused its discretion in denying

petitioner’s request to reinstate Ground Three and (2) whether, on the merits,

Ground Three presents a basis for habeas relief.

      A district court abuses its discretion when it makes an error of law. United

States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (citing Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 405 (1990). Here, the district court first found that

Montana v. Egelhoff, 518 U.S. 37, 56 (1996), foreclosed a claim based on the

exclusion of a voluntary intoxication defense. We do not question that conclusion;

however, we find that petitioner’s original claim was broad enough to cover a

challenge to the general intent instruction itself. See Maleng v. Cook, 490 U.S.

488, 493 (1989) (pro se pleadings must be construed with deference). By its own

terms, Ground Three complained of the trial court’s instruction that second degree

murder with implied malice is a general intent crime, not of the specific instruction

that voluntary intoxication does not reduce culpability. In the supporting facts,

petitioner cited both CALJIC 3.30, the general intent instruction, and CALJIC

4.21.1, the voluntary intoxication instruction. Thus, simply applying Egelhoff did

not resolve petitioner’s request for reinstatement.

      The district court also considered petitioner’s citation to Ho v. Carey, 332

F.3d 587 (9th Cir. 2003), and essentially rendered a substantive decision that the



                                           2
case does not govern petitioner’s claim. Thus, to evaluate whether the district

court abused its discretion by incorrectly applying the law, we must resolve the

merits of Ground Three under Ho. In this respect, the two issues before us merge

into a single inquiry.

      We conclude that Ho governs this case, as that decision concerned a second

degree murder charge with substantially the same instructions as were given here.

Specifically, the court in Ho confronted the situation in which a jury was first

instructed that second degree implied malice murder requires general criminal

intent and then instructed, correctly, that:

      In each of the crimes charged . . . there must exist a certain mental
      state in the mind of the perpetrator. Unless such mental state exists,
      the crime to which it relates is not committed.

      ....

      In the crime of murder in the second degree, the necessary mental
      state is malice.

See Appellant’s RJN dated Mar. 14, 2012, Ex. A (Dkt. # 41-2) at 15-16;

Appellant’s RJN dated March 21, 2012, Ex. A (Dkt. # 42-2) at 44. The elements

of implied malice were also correctly listed for the jury. Yet Ho held that the later,

correct instructions did not cure what it considered to be a facially incorrect

instruction on general intent. Ho, 332 F.3d at 594-96. Thus, we must similarly

conclude that the general intent instruction given at petitioner’s trial was

                                               3
constitutional error. Id. at 592. Furthermore, we must find that the error was not

harmless, as there was sufficient evidence to support petitioner’s defense that he

did not act with the requisite mental state, and Ho instructs that there is no way of

determining whether the jury relied on the erroneous general intent instruction or

on the correct definition of malice in convicting petitioner of second degree

murder. See id. at 595-96.

       Because Ho is controlling precedent, the district court abused its discretion

in denying petitioner’s request to reinstate Ground Three. In addition, under Ho,

petitioner is entitled to habeas relief.

       REVERSED.




                                           4
