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NOT FOR PUBLICATION MAY 24 2012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
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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
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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.
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