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.

IT IS SO ORDERED.