Douglas McShane v. Matthew Cate

FILED
NOT FOR PUBLICATION AUG 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS BRIAN MCSHANE, No. 12-55575
Petitioner - Appellee, D.C. No. 5:09-cv-01243-CAS-
VBK
v.
MATTHEW CATE, Secretary, California MEMORANDUM*
Department of Corrections and
Rehabilitation,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted July 10, 2013
Pasadena, California
Before: WARDLAW, BYBEE, and NGUYEN, Circuit Judges.
Respondent Matthew Cate appeals the district court’s conditional grant of
Petitioner Douglas Brian McShane’s petition for a writ of habeas corpus. The facts
are known to the parties. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2253. We review de novo the district court’s grant of a petition for a writ of
habeas corpus. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc).
We VACATE the district court’s judgment and REMAND for further proceedings.
In Cullen v. Pinholster, the Supreme Court held that “evidence introduced in
federal court has no bearing on § 2254(d)(1) review.” 131 S. Ct. 1388, 1400
(2011). “If a claim has been adjudicated on the merits by a state court, a federal
habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that
was before that state court.” Id.; see also id. at 1400 n.7 (noting that an
unreasonable determination of fact under § 2254(d)(2) must be unreasonable “in
light of the evidence presented in the State court proceeding,” and stating that
“[t]he additional clarity of § 2254(d)(2) on this point . . . does not detract from our
view that § 2254(d)(1) also is plainly limited to the state-court record” (emphasis
added)). The Supreme Court further stated:
Section 2254(e)(2) continues to have force where
§ 2254(d)(1) does not bar federal habeas relief. For
example, not all federal habeas claims by state prisoners
fall within the scope of § 2254(d), which applies only to
claims “adjudicated on the merits in State court
proceedings.” At a minimum, therefore, § 2254(e)(2) still
restricts the discretion of federal habeas courts to consider
new evidence when deciding claims that were not
adjudicated on the merits in state court.
2
Id. at 1401. After Pinholster, we have held that a federal habeas court may
consider new evidence only on de novo review, subject to the limitations of
§ 2254(e)(2). See Stokley v. Ryan, 659 F.3d 802, 808 (9th Cir. 2011).
In December 2010, prior to the Supreme Court’s decision in Pinholster, the
federal magistrate judge conducted an evidentiary hearing. Following
supplemental briefing regarding the potential effect of Pinholster, the magistrate
judge issued a Report and Recommendation in which he discussed Pinholster’s
limitations on evidence which can be properly considered on federal habeas
review. In light of Pinholster, the magistrate judge stated: “As will be shown
below, based solely on the state court record, assuming the truth of the allegations
and evidence that Petitioner presented, the Court finds that the San Bernardino
County Superior Court’s finding that Petitioner failed to set forth a prima facie
showing that he is entitled to relief was objectively unreasonable.” The magistrate
judge continued, however, to summarize in detail the evidence that was presented
at the federal evidentiary hearing in December 2010. Further, in numerous
instances, the magistrate judge’s analysis of McShane’s ineffective assistance of
counsel claim referred to testimony presented at the federal evidentiary hearing.
The district court accepted the magistrate’s Report and Recommendation, without
exception and with no discussion or explanation.
3
It is apparent that the § 2254(d) review in this case was affected, perhaps
unwittingly, by evidence adduced at the December 2010 evidentiary hearing.
However, because the California courts considered McShane’s claims on the
merits, proper AEDPA review in this case requires consideration of only the
evidence that was before the state court in determining whether § 2254(d) is
satisfied. Pinholster, 133 S. Ct. at 1400–01 & n.7. It is clear from the face of the
Report and Recommendation—as accepted by the district court—that the
magistrate judge considered materials outside of the record that was before the
state court in making its § 2254(d) determination. This was error under Pinholster.
We VACATE the district court’s judgment and REMAND this case for the
district court for further proceedings to properly consider both of McShane’s
claims pursuant to Pinholster.1
VACATED AND REMANDED.
1
In light of the fact that the magistrate judge has extensively reviewed
evidence that was outside the record before the state court and already has come to
a decision based partially on that evidence, and in order to preserve the appearance
of justice, we recommend that a different magistrate judge review this case on
remand. We leave to the district court the question whether it should consider
transferring this case to a district court judge who has not reviewed the evidence in
the context of making the § 2254(d) determinations.
4