Unpublished Disposition, 907 F.2d 155 (9th Cir. 1982)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1982)

James Franklin MESSAMORE, Petitioner-Appellant,v.Harold FALK, Director of Corrections, State of Hawaii,Respondent-Appellee.

No. 89-16532.

United States Court of Appeals, Ninth Circuit.

Submitted June 4, 1990.* Decided July 11, 1990.

Before GOODWIN, CANBY and RYMER, Circuit Judges.


ORDER

The record received from the district court in this case includes only Volume III of the state court trial transcript, dated October 27, 1982, along with Exhibits A and 4. This court is advised that no other transcripts are in the possession of the district court.

Volume III does not contain the testimony of petitioner, nor does it include any reference to evidence of petitioner's vasectomy or sperm counts. Review of those portions of the state trial record by the district court is essential to determine the validity of petitioner's claim that the evidence was insufficient to support his conviction. Findings by the district court on petitioner's vasectomy evidence, and the effect thereof in light of the evidence of seminal fluid containing sperm found in the victim's room, are essential to this court's review on appeal.

Accordingly, the judgment of the district court is vacated, and the case is remanded to the district court. The district court is instructed to review, if it has not already done so, all portions of the state trial record relevant to petitioner's claim of insufficiency of evidence, particularly including the record relating to petitioner's vasectomy, sperm counts, and the effects thereof. See Reiger v. Christiansen, 789 F.2d 1425, 1428 (9th Cir. 1986). After such review, and any other proceedings that the district court deems appropriate, the district court shall enter new findings, including findings relating to petitioner's vasectomy and the effect thereof, and shall enter a new judgment based thereon.

Any new appeal will be assigned to this panel.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4