and Submitted November 14, 2016 San Francisco, California
from the United States District Court for the District of
Nevada, No. 3:07-cv-00304-LRH-WGC Larry R. Hicks, District
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
Before: Stephen Reinhardt and John B. Owens, Circuit Judges,
and Salvador Mendoza, Jr., [*] District Judge.
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.
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
REINHARDT, Circuit Judge:
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.
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.
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.
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 ...