Brendan Nasby v. E. McDaniel
2017 U.S. App. LEXIS 6127
| 9th Cir. | 2017

Background

  • Brendan Nasby was convicted in Nevada (1999) of murder, use of a deadly weapon, and conspiracy; sentenced to consecutive life terms plus 120 months. He maintained innocence.
  • Trial counsel performed poorly (e.g., joked at opening, called no alibi witnesses, failed to investigate or introduce key evidence); counsel later disclosed a conflict arising from employment with a Public Defender office that represented a co-defendant who testified against Nasby.
  • Nasby raised multiple claims on direct appeal and in two state habeas petitions, including prosecutorial misconduct, coerced testimony, improper jury instructions, admission of prior-bad-acts evidence, and ineffective assistance of trial and appellate counsel; state courts denied relief after an evidentiary hearing on some IAC claims.
  • Nasby filed a federal habeas petition under 28 U.S.C. § 2254 asserting cumulative prosecutorial misconduct, coerced testimony, insufficient corroboration for conspiracy conviction, failure to give cautionary accomplice instruction, errors in instructions on premeditation, and IAC among other claims; the district court denied relief and declined a COA.
  • The Ninth Circuit granted a COA on several issues and held that the district court erred by adjudicating the merits without obtaining or independently reviewing the trial transcript and the state evidentiary-hearing transcript; the case was vacated and remanded for the district court to obtain and review the relevant state-court record (or hold an evidentiary hearing if the record cannot be obtained).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether district court could decide §2254 claims without reviewing state trial and evidentiary transcripts Nasby: federal court must obtain/review the state record (or hold its own hearing) to independently assess state-court adjudication State: AEDPA limits review and district court may accept state court's factual description without independently reviewing transcripts Court: District court erred; must obtain and review relevant state record or hold evidentiary hearing; remand required
Whether AEDPA bars independent review of the state record Nasby: AEDPA requires examination of what evidence was before the state court to assess unreasonable application/determination State: AEDPA prevents reexamination; district court should not reweigh facts if state court ruled Court: AEDPA does not excuse failure to review record; independent review of the state record is required under §2254(d) analysis
Whether district court properly denied habeas on merits without transcripts Nasby: merits cannot be meaningfully evaluated absent trial/evidentiary transcripts State: merits can be assessed from state-court opinion alone Court: Improper to resolve merits without the record; remand to reassess claims after reviewing records
Whether procedural defaults/exhaustion rulings were correctly applied Nasby: some claims were unexhausted/ineffective post-conviction counsel excuses; merits should be reviewed State: many claims were procedurally defaulted/untimely/successive Court: Declined to decide on merits of these certified issues pending review of full record on remand

Key Cases Cited

  • Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) (federal habeas court must obtain/review relevant state-court record or hold evidentiary hearing)
  • Lincoln v. Sunn, 807 F.2d 805 (9th Cir. 1987) (district court must independently review state record or hold hearing before denying habeas)
  • Johnson v. Lumpkin, 769 F.2d 630 (9th Cir. 1985) (same duty to review record or conduct hearing)
  • Turner v. Chavez, 586 F.2d 111 (9th Cir. 1978) (habeas review requires independent assessment of state record)
  • Magouirk v. Phillips, 144 F.3d 348 (5th Cir. 1998) (remand required to supplement record for meaningful review)
  • Beck v. Bowersox, 257 F.3d 900 (8th Cir. 2001) (AEDPA requires meaningful federal review of evidentiary record considered by state court)
  • Jeffries v. Morgan, 522 F.3d 640 (6th Cir. 2008) (district court must review entire trial transcript; remand if substantial portions omitted)
  • Aliwoli v. Gilmore, 127 F.3d 632 (7th Cir. 1997) (remand when key parts of state record are missing)
  • Thames v. Dugger, 848 F.2d 149 (11th Cir. 1988) (careful review of state record necessary for full and fair hearing)
  • Cullen v. Pinholster, 563 U.S. 170 (2011) (review under §2254(d)(1) is limited to the record before the state court)
  • Batson v. Kentucky, 476 U.S. 79 (1986) (equal protection challenge to race-based peremptory strikes)
  • Massiah v. United States, 377 U.S. 201 (1964) (prohibition on obtaining statements from accused after indictment through government informants without counsel)
  • Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) (§2254(e)(1) may not apply where petitioner seeks relief based on the state-court record)
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