Nasby v. McDaniel
| Decision Date | 10 April 2017 |
| Docket Number | 15-16264,Nos. 14-17313,s. 14-17313 |
| Citation | 853 F.3d 1049 |
| Parties | Brendan NASBY, Petitioner-Appellant, v. E. K. MCDANIEL; Nevada Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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.
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 for mistrial, and failed to give necessary jury instructions. The Nevada Supreme Court affirmed the convictions.
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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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'soffice, his failure 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.
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 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 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
We face a threshold obstacle to reviewing Nasby's petition. The district court failed to examine important parts 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
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...
To continue reading
Request your trial
-
Davis v. Johnson
...reviewed the record as required by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Nasby v. McDaniel , 853 F.3d 1049, 1052–54 (9th Cir. 2017). Based on the Court's independent review, the Court finds that it can reasonably conclude that the state court's summary of fact......
-
Beadle v. Allison
... ... the following summary of the evidence in People v ... Beadle , 2019 WL 6206371 (Cal.App. Nov. 21, 2019) ... See Nasby v. McDaniel , 853 F.3d 1049, 1052-53 (9th ... Cir. 2017); see also Slovik v. Yates , 556 F.3d 747, ... 749 n.l (9th Cir. 2009) (taking ... ...
-
Antoine v. Asuncion
...reviewed the record as required by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Nasby v. Daniel, 853 F.3d 1049, 1052-54 (9th Cir. 2017). Based on the Court's independent review, the Court finds that it can reasonably conclude that the state court's summary of facts i......
-
Daniel v. Neuschmid
...the opinion as of that date. Ans., Ex. 8. 4. The Court has independently reviewed the record as required by AEDPA. Nasby v. McDaniel, 853 F.3d 1049, 1055 (9th Cir. 2017). Based on the Court's independent review, the Court finds that it can reasonably conclude that the state court's summary ......