MEMORANDUM**

Trent Davis was convicted of attempted murder, assault with intent to commit forcible oral copulation, attempted forcible oral copulation, and additional related counts. The trial court instructed the jury that if it found by a preponderance of the evidence that Davis committed a prior sexual offense, it could infer that Davis committed the charged sexual offenses. Davis filed a habeas petition, contending, among other things, that these jury instructions lessened the burden of proof and violated his due process rights.

Davis’s due process challenge is controlled by our decision in Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004). In Gibson, we held that the same instructions resulted in the application of an unconstitutional burden of proof by allowing the jury to find the defendant guilty based on facts found only by a preponderance of the evidence. Id. at 822. Accordingly, Davis has established a due process violation warranting habeas relief. We therefore remand to the district court for the court to grant a conditional writ of habeas corpus instructing the State that it may either retry Davis within an appropriate period to be determined by the district court, or release him from custody.

REVERSED AND REMANDED.