Conway v. Lewis , 83 F. App'x 917 ( 2003 )

MEMORANDUM^**

Petitioner-Appellant Conway seeks a writ of habeas corpus under 28 U.S.C. § 2254. He claimed in the district court, and urges to us on appeal, that his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated by peremptory strikes of black jurors during voir dire in California Superior Court.

During proceedings in the district court, the state had a copy of the transcript of the voir dire hearing that it submitted to the district court. However, according to the state in oral argument before us, that transcript was not provided to Conway, who was incarcerated and not represented by Counsel. There was no evidentiary hearing in the district court. Counsel was appointed for Conway on appeal to this Court.

Because of lacunae in the record, we are unable to ascertain with clarity what happened in the Superior Court. In part, the difficulty appears to stem from the fact that Conway was not represented in the district court. We remand to the district court for appointment of counsel, and for such further development of the record as the district court deems appropriate. Proceedings on remand may include, if appropriate, an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). We also alert the district court to our recent decision in Collins v. Rice, 348 F.3d 1082, 2003 WL 22519423 (9th Cir.2003), which was decided after the district court reached its decision in this case.

We accordingly VACATE the decision of the district court and REMAND for further proceedings.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.