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Nasby v. McDaniel

United States Court of Appeals, Ninth Circuit

April 10, 2017

Brendan Nasby, Petitioner-Appellant,
v.
E. K. McDaniel; Nevada Attorney General, Respondents-Appellees.

          Argued and Submitted November 14, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Nevada, No. 3:07-cv-00304-LRH-WGC Larry R. Hicks, District Judge, Presiding

          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 Respondents-Appellees.

          Before: Stephen Reinhardt and John B. Owens, Circuit Judges, and Salvador Mendoza, Jr., [*] District Judge.

         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.

          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 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 ...


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