Brendan Nasby v. E. McDaniel, et al

Filing

FILED OPINION (STEPHEN REINHARDT, JOHN B. OWENS and SALVADOR MENDOZA, JR.) VACATED; REMANDED. Judge: SR Authoring. FILED AND ENTERED JUDGMENT. [10389277] [14-17313, 15-16264]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRENDAN NASBY,
Petitioner-Appellant,

Nos. 14-17313
15-16264

v.

D.C. No.
3:07-cv-00304-LRH-WGC

E. K. MCDANIEL; NEVADA
ATTORNEY GENERAL,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted November 14, 2016
San Francisco, California
Filed April 10, 2017
Before: Stephen Reinhardt and John B. Owens, Circuit
Judges, and Salvador Mendoza, Jr.,* District Judge.
Opinion by Judge Reinhardt

*

The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.

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NASBY V. MCDANIEL
SUMMARY**

Habeas Corpus
The panel vacated the district court’s dismissal of Nevada
state prisoner Brendan Nasby’s habeas corpus petition,
vacated the district court’s order denying Nasby’s motion to
alter or amend the judgment under Fed. R. Civ. P. 59(e), and
remanded for review of the pertinent state record.
The panel held that the principle articulated in the line of
cases beginning with Jones v. Wood, 114 F.3d 1002 (9th Cir.
1997), requires a remand because the district court, which
failed to obtain and review the relevant portions of the state
court record and did not hold an evidentiary hearing on
Nasby’s claims, did not perform the “independent review” of
the basis of the state court’s decision that Jones requires. The
panel wrote that the State’s assertion that AEDPA prevents a
federal habeas court from reviewing the record and obliges it
to accept the state court’s description of facts on faith, is
clearly wrong. The panel wrote that AEDPA demands the
opposite.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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NASBY V. MCDANIEL

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COUNSEL
Thomas L. Qualls (argued), Law Office of Thomas L. Qualls
Ltd., Reno, Nevada, for Petitioner-Appellant.
Victor-Hugo Schulze, II (argued), Senior Deputy Attorney
General; Adam Paul Laxalt, Attorney General; Office of the
Attorney General, Las Vegas, Nevada; for RespondentsAppellees.

OPINION
REINHARDT, Circuit Judge:
Petitioner Brendan Nasby was convicted of murder in
Nevada in 1999. His case has made its way through the state
courts, and he now appeals the federal district court’s denial
of his petition for habeas corpus under 28 U.S.C. § 2254(d).
In his petition, Nasby asserts serious constitutional violations
based on prosecutorial misconduct, the use of coerced
testimony, ineffective assistance of trial and appellate
counsel, and errors in the jury instructions. The district court
rejected Nasby’s claims and dismissed his petition. Because
it did so without obtaining or reviewing the record of the
relevant proceedings in state court, we vacate and remand for
its review of the pertinent state court record.
BACKGROUND
1.
In August 1998, Brendan Nasby was arrested and charged
with the gang-related murder of Michael Beasley. Nasby was

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NASBY V. MCDANIEL

hardly well-represented at trial. His state-appointed counsel
opened with a joke about the likely length of Nasby’s
sentence. Although counsel submitted a list of alibi
witnesses, he did not call a single one of them at trial. He
failed to investigate other witnesses to support Nasby’s
position, and failed to introduce important evidence on
Nasby’s behalf. After a seven day trial, the jury found Nasby
guilty of murder with the use of a deadly weapon and of
conspiracy to commit murder. The judge sentenced Nasby to
two life sentences to run consecutively, along with 120
months for the conspiracy conviction. Nasby has always
maintained that he was not involved in the murder.
After sentencing, Nasby’s counsel, Joseph S. Sciscento,
informed the court of a conflict of interest. He explained that
he had accepted and begun employment with the Special
Public Defender’s Office prior to trial – an office that
concurrently represented one of Nasby’s co-defendants, who
had testified against him at trial. The court granted counsel’s
request to withdraw and appointed a new lawyer, Frederick
A. Santacroce, to represent Nasby on appeal.
Nasby then challenged his convictions on a number of
grounds before the Nevada Supreme Court. Prosecutors,
Nasby claimed, offered other gang members significantly
reduced sentences in exchange for testifying against him and
threatened them with contempt if they did not do so. In
addition to his claim that the State relied on coerced
testimony, Nasby argued that the trial court wrongly denied
a motion for mistrial, and failed to give necessary jury
instructions. The Nevada Supreme Court affirmed the
convictions.

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2.
Nasby fared no better on state collateral review. He filed
a petition for habeas corpus in state court seeking relief on
five grounds. He challenged his conviction under Batson v.
Kentucky, 476 U.S. 79 (1986); argued that multiple instances
of prosecutorial misconduct cumulatively violated his right to
due process; made two claims that the trial court failed to
give the legally required jury instructions; and asserted that
his trial and appellate counsel were unconstitutionally
ineffective. The petition was not successful.
Nasby later filed a second state habeas petition. This
petition asserted that the cumulative effect of prosecutorial
misconduct violated Nasby’s Fourth, Fifth, Sixth and
Fourteenth Amendment rights. Specifically, Nasby alleged
seven instances of prosecutorial misconduct, including that
the prosecutor prevented a defense witness from testifying,
improperly vouched for the credibility of a state witness, told
the jury of facts not in evidence, misstated the law in closing
argument, presented false testimony, withheld vital
information from the defense, and improperly used a
jailhouse informant to obtain incriminating information
against Nasby. Nasby also argued that the trial court erred by
allowing the introduction of evidence of prior bad acts and by
failing to instruct the jury properly. Finally, Nasby again
claimed ineffective assistance of trial and appellate counsel.
He pointed to trial counsel’s failure to call witnesses,
counsel’s application of improper and extreme pressure to
plead guilty, his conflict of interest in having accepted
employment in the Public Defender’s office, his failure

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sufficiently to investigate and present evidence,1 his failure to
object to erroneous jury instructions, and his refusal to allow
Nasby to testify.
The state trial court held an evidentiary hearing pertaining
to Nasby’s ineffective assistance of counsel claims.2 His
lawyers, Sciscento and Santacroce, both testified as
witnesses. Nevertheless, the court denied Nasby’s petition.
It found that Nasby’s claims of prosecutorial misconduct and
trial court error were procedurally barred due to his failure to
raise the claims on direct appeal. The court also found that
the evidence did not support the ineffective assistance of trial
and appellate counsel claims because “the decisions of
counsel were reasonable and within the discretion of decision
making.” The Nevada Supreme Court affirmed.
3.
Nasby filed a federal habeas petition in the district court
under 28 U.S.C. § 2254. He asserted constitutional violations
based on: (1) the cumulative effect of prosecutorial
misconduct; (2) the trial court’s errors in allowing the
introduction of prior bad acts evidence and its failure to
properly instruct the jury; (3) ineffective assistance of trial
and appellate counsel; (4) the State’s use of coerced
testimony; (5) the lack of corroborating evidence to support
1

Nasby states that his lawyer “called no witnesses to testify on
Petitioner’s behalf, presented no defense at all, and . . . failed to introduce
any evidence on Petitioner’s behalf.”
2

Oddly, the State included the transcript of the hearing in the excerpts
of record on this appeal, although it submitted neither the trial transcript
nor the transcript of the hearing to the district court, which decided the
case without the benefit of either of those documents.

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his conviction for conspiracy to commit murder; (6) the trial
court’s failure to provide a cautionary instruction to the jury
regarding accomplice testimony; and (7) the trial court’s
failure to instruct the jury on willfulness, deliberation, and
premeditation.
The district court found some of Nasby’s claims
unexhausted and the rest procedurally defaulted. It initially
rejected Nasby’s attempt to return to state court to litigate the
unexhausted claims, but after Nasby cited the ineffectiveness
of post-conviction counsel and inadequate law library
facilities in prison as causes for his failure to exhaust, the
court reversed itself and put the federal petition aside while
Nasby exhausted his claims in state court. Nasby then failed
to obtain relief in state court and, in due course, returned to
federal court.
Addressing the merits of a number of Nasby’s ineffective
assistance of counsel claims, the district court held that Nasby
failed to meet his high burden under 28 U.S.C. § 2254(d) of
proving that the Nevada Supreme Court’s rulings were
contrary to, or involved an unreasonable application of,
clearly established federal law as determined by the United
States Supreme Court, or that the rulings were based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. It reached
the same conclusion with regard to one of Nasby’s jury
instruction claims. Nasby’s remaining claims, the court
found, were procedurally defaulted.3 The court nevertheless

3

Specifically, the court found that the defaulted claims were rejected
in state court because they were “untimely pursuant to NRS § 34.726(1),
successive pursuant to NRS § 34.810(1)(b)(2), an abuse of the writ

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addressed the defaulted claims on the merits and concluded
that those claims, too, would not merit relief under § 2254(d).
Accordingly, the district court dismissed Nasby’s petition and
denied a Certificate of Appealability (“COA”).
Nasby filed a timely notice of appeal to this court. He
also filed a motion in district court to alter or amend its
judgment pursuant to Fed. R. Civ. P. 59(e). The district court
denied that motion. Nasby also filed an unsuccessful Rule
60(b) motion, requesting that the district court vacate its
orders denying his habeas petition and his Rule 59(e) motion,
and either review and grant his habeas petition and/or Rule
59(e) motion, or grant a COA on all grounds of his petition
and the Rule 59(e) motion. Finally, we granted Nasby a COA
as to five issues.4
ANALYSIS
We face a threshold obstacle to reviewing Nasby’s
petition. The district court failed to examine important parts

pursuant to NRS § 34.810(2), and barred by laches pursuant to NRS
§ 34.800(2).”
4

The certified issues were: “(1) Whether trial counsel was ineffective
due to a conflict of interest; (2) whether the district court erred in failing
to address the claim that appellate counsel was ineffective for failing to
raise Grounds 1 and 2, and for failing to federalize the claims that counsel
did raise; (3) whether the district court properly concluded that the
prosecutorial misconduct and violation of Massiah v. United States,
377 U.S. 201 (1964) claims were procedurally defaulted; and (4) whether
the district court erred in ruling on the merits of appellant’s claims without
first requiring the State to submit all relevant portions of the state record,
including trial and evidentiary hearing transcripts.” We also certified for
appeal the question “whether the district court properly denied appellant’s
motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e).”

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of the record of the state court proceedings in its adjudication
of Nasby’s claims. Specifically, the district court never
obtained or reviewed the transcript of Nasby’s trial or the
transcript of the evidentiary hearing that the state court
conducted on collateral review. Nor did the district court
conduct an evidentiary hearing on Nasby’s claims. Instead,
it simply relied on the facts as described in the Nevada
Supreme Court’s opinion denying Nasby relief.
Among the several issues we certified for appeal was
“whether the district court erred in ruling on the merits of
Nasby’s claims without first requiring the State to submit all
relevant portions of the state record, including trial and
evidentiary hearing transcripts.” Because we conclude that
the district court did err in this regard and that the case must
therefore be remanded for further proceedings, including a
further review of the other certified issues, we do not consider
the merits of those issues here.5
1.
Nasby contends that if the role of a federal habeas court
were simply to accept on faith the state court’s description of
the facts, free from any obligation to review the record on
which the state court based its judgment, “there would hardly
be a reason to have a federal habeas statute at all.” We agree.
In Jones v. Wood, we held that a habeas court must either
obtain and review the relevant portions of the record on
which the state court based its judgment, or conduct an
evidentiary hearing of its own. 114 F.3d 1002 (9th Cir.
1997). In Jones, a habeas petitioner contended that his state
5

See, however, fn. 8, infra.

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conviction was unconstitutional because it was supported by
insufficient evidence. The district court dismissed the
petition without obtaining the record of proceedings in state
court. We reasoned that meaningful collateral review of the
state court’s adjudication of petitioner’s claims requires an
“independent” assessment of the basis for the state court’s
decision. Id. at 1108. Without such an independent
assessment, the district court would be unable to “determine
whether the state court adjudication rested on an unreasonable
application of clearly established federal law or an
unreasonable determination of fact.” Id. at 1013. Because
the district court in Jones did not independently review the
record before the state court or develop its own factual record
on which to assess the state court’s adjudication, we
explained that we had “no alternative” but to remand. Id. at
1008.
Jones built on a long line of our cases requiring federal
habeas courts to examine independently the basis for the state
court’s decision, rather than to accept the state court’s
determination of the facts on faith. See, e.g., Lincoln v. Sunn,
807 F.2d 805, 808 (9th Cir. 1987) (“We may not affirm a
district court’s denial of a writ of habeas corpus unless the
court either held a hearing, or the record shows that the
district court independently reviewed the relevant portions of
the state court record.”); Johnson v. Lumpkin, 769 F.2d 630,
636 (9th Cir. 1985) (same); Turner v. Chavez, 586 F.2d 111,
112 (9th Cir. 1978) (“In considering a petition for a writ of
habeas corpus, the district court must make its determination
as to the sufficiency of the state court findings from an
independent review of the record, or otherwise grant a
hearing and make its own findings on the merits. A reading
of the well-reasoned opinion of the state court would indicate
that appellant's allegations may be without merit. However,

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this cannot be said with certainty without a review of the
record. The very nature of the habeas corpus action demands
an independent review.” (internal citations omitted)).
The principle we articulated in the Jones line of cases
requires us to remand Nasby’s petition to the district court.
The district court failed to obtain and review the relevant
portions of the state court record and did not hold an
evidentiary hearing on Nasby’s claims. As a result, it did not
perform the “independent review” of the basis for the state
court’s decision that Jones requires. Nasby’s petition makes
serious claims of ineffective assistance of counsel,
prosecutorial misconduct, and improper jury instructions,
among others. There can be no doubt that the trial transcript
and the transcript of the evidentiary hearing held by the state
court are relevant to the adjudication of Nasby’s claims.
Although Jones involved a petition claiming insufficient
evidence, not ineffective assistance of counsel or
prosecutorial misconduct, nothing in Jones’s reasoning limits
its holding to such petitions. We therefore have “no
alternative” but to remand. Jones, 114 F. 3d at 1008.
Five other Circuits have reached the same conclusion and
held that remand is necessary in similar circumstances. See
Magouirk v. Phillips, 144 F.3d 348, 363 (5th Cir. 1998)
(“This case must be remanded so that the record can be
supplemented with those portions of the state court record
necessary to conduct a meaningful review.”); Beck v.
Bowersox, 257 F.3d 900, 901 (8th Cir. 2001) (explaining that
the habeas statutes “require meaningful federal court review
of the evidentiary record considered by the state courts” and
that it was error to “reach the merits of [petitioner’s] Fifth and
Sixth Amendment claims without reviewing the transcript
and including it in the record of this federal habeas

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proceeding”); Jeffries v. Morgan, 522 F.3d 640, 644 (6th Cir.
2008) (“[A] District Court must make a review of the entire
state court trial transcript in habeas cases, and where
substantial portions of that transcript were omitted before the
District Court, a habeas case should be remanded to the
District Court for consideration in light of the full record.”);
Aliwoli v. Gilmore, 127 F.3d 632, 633–34 (7th Cir. 1997)
(explaining that because key parts of the state record are
missing, “we are unable to examine Aliwoli’s claims in light
of the whole record of this case, and we must vacate in part
the district court's denial of Aliwoli’s petition” and “remand
this case to the district court, which should ensure that any
necessary state materials are submitted by the parties”);
Thames v. Dugger, 848 F.2d 149, 151 (11th Cir. 1988)
(“Absent careful review of the record, a district court has no
measure to determine whether a petitioner’s constitutional
claim received a full and fair hearing.”).
On remand, the district court should order the State to
submit the relevant portions of the state court record and,
after examining them, newly adjudicate Nasby’s petition.
Regardless of what documents the parties originally submit,
it is the district court’s independent obligation to obtain the
relevant portions of the record. Jones, 114 F.3d at 1008
(“That Jones did not include the state court record as part of
his habeas petition is of no import. . . . [T]he district court has
the duty to obtain that record itself.”). Only if the court is
satisfied that obtaining the record itself is not feasible, for
some legitimate reason, should the district court pursue the
alternative that Jones provides, an evidentiary hearing. Here,
the State has given us no indication that it will not be able to
produce the relevant portions of the record. We therefore

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expect the district court to obtain and examine the record on
remand.6
2.
The State rather remarkably asserts that AEDPA prevents
a federal habeas court from reviewing the record and obliges
it, instead, to accept the state court’s description of facts on
faith. At oral argument, the State’s counsel even stated that
a district court should be reversed if it examined the record in
granting relief.7 This is clearly wrong. Far from requiring
that a federal court accept the state court’s description of the
facts without conducting an independent examination of the
record, AEDPA demands the opposite.
Under 28 U.S.C. § 2254(d), a federal habeas court is
charged with determining whether a state court’s disposition
of a claim for relief “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court,” § 2254(d)(1), or “resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
§ 2254(d)(2).

6

It is, as a result, unnecessary for us to discuss further the nature of
the hearing that the district court would be obliged to hold should the
original record, or any material part of it, be unavailable.
7

When asked if, had the district court ordered the transcripts and
granted relief, “we would have to reverse that,” counsel for the State
responded, “Yes, absolutely.”

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The text of the statute provides that a petitioner who seeks
relief under Section (d)(2) – unreasonable determination of
the facts – must show that the state court unreasonably
determined the facts “in light of the evidence presented” to
the state court. The Supreme Court has held that review
under Section (d)(1) – unreasonable application of law – is
similarly “limited to the record that was before the state
court,” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), even
though AEDPA’s text imposes no such limitation. The
Supreme Court reasoned that the statute’s “backward-looking
language requires an examination of the state-court decision
at the time it was made. It follows that the record under
review is limited to the record in existence at that same time,
i.e., the record before the state court.” Id. at 181–82.
It is not clear how a federal court could evaluate whether
a state court unreasonably determined the facts “in light of
the evidence” before it without first ascertaining what
evidence was before it. It is equally difficult to imagine how
a federal habeas court could determine whether a state court
unreasonably applied clearly established law to the
petitioner’s case without itself reviewing independently the
nature and extent of that case. To accept the state court’s
description of the facts or to uphold its application of law
without independently evaluating what supports (or does not
support) the court’s determination of the facts and what
factual basis justifies (or does not justify) the court’s
application of the law is inconsistent with the responsibilities
of a federal habeas court under Section 2254(d).
Nowhere in the habeas statute is there any suggestion that
the district court could not or should not examine the state
court record. In fact, the statute expressly provides that “the
official records of the State court . . . shall be admissible in

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the Federal court proceeding.” 28 U.S.C. § 2254(g). Nor are
we aware of any case that holds or even hints that the district
court could not or should not examine the record. To the
contrary: two circuits have expressly held that AEDPA
requires federal courts to do so. See Beck, 257 F.3d at 901
(the provisions of AEDPA “require meaningful federal court
review of the evidentiary record considered by the state
courts”); Jeffries, 522 F.3d at 644–45 (holding, under
AEDPA, that review of the record is necessary “in order to
properly assess [a] habeas petition”). For its bizarre
suggestion, the State only quotes § 2254(e)(1), a provision
that we have held does not apply to habeas petitions, like
Nasby’s, that seek relief solely on the basis of the record
before the state court. Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004).
In sum, it is clear that in order to provide adequate habeas
review as contemplated by AEDPA, the court is required to
review the state court record. The petition must be remanded.
CONCLUSION
For the foregoing reasons, we VACATE the district
court’s dismissal of Nasby’s petition8 and REMAND with
instructions to consider his claims after obtaining and
reviewing all relevant portions of the state court record.

8
For the same reasons, we VACATE the district court’s order
denying Nasby’s motion to alter or amend the judgment under Rule 59(e).
The district court will likely find it necessary to also vacate its order
denying Nasby’s motion for relief from judgment under Rule 60(b), which
judgment was entered after the grant of the Certificate of Appealability.