Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1989)

MEMORANDUM^** 

In 1981, an Arizona jury found Johnny Barnwell guilty of attempted second degree murder and attempted armed robbery. Barnwell was sentenced to serve ten years for each offense, to be served consecutively. Following his conviction and sentence, Barnwell petitioned the Arizona trial court for post-conviction relief on the basis of newly discovered evidence. This evidence indicated that another man had confessed to the crime for which Barnwell had been convicted and strongly suggested Barnwell's innocence. The trial court conducted an evidentiary hearing regarding Barnwell's claim, but then denied him relief without making any findings. A state appellate court, after noting the absence of findings, affirmed the denial, stating that it could not say that the trial court's decision constituted an abuse of discretion.

After the Arizona Supreme Court denied his petition for review, Barnwell petitioned the District Court of Arizona for habeas corpus relief. Barnwell claimed that he was entitled to an evidentiary hearing and habeas relief because the newly discovered evidence demonstrated his innocence and because he had not been given a full and fair hearing with respect to this new evidence in the state court. Respondent Samuel Lewis moved for summary judgment on the grounds that newly discovered evidence relevant only to guilt is not a basis for federal habeas corpus relief. The district court granted the motion for summary judgment and dismissed the petition. Petitioner appeals.

The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 2254. This court has appellate jurisdiction pursuant to 28 U.S.C. § 2253. We review the district court's dismissal of a Petition for Writ of Habeas Corpus de novo. Reiger v. Christensen, 789 F.2d 1425 (9th Cir. 1986).

In dismissing Barnwell's petition, the district court stated simply that newly discovered evidence as to guilt or innocence is not a basis for federal habeas relief. The court, however, never considered Barnwell's assertion that he did not receive a full and fair hearing. Accordingly, we remand to the district court to consider the adequacy of the state proceedings concerning petitioner's newly discovered evidence. We also direct the district court to appoint counsel to represent petitioner in further proceedings in this matter.

REVERSED AND REMANDED.