Unpublished Disposition, 927 F.2d 610 (9th Cir. 1990)

MEMORANDUM^** 

Albert O'Neal Scott appeals from the district court's denial of his petition for a writ of habeas corpus. Scott's petition alleged due process violations during his state proceedings. This court has jurisdiction under 28 U.S.C. § 2254. We review the district court's denial of the habeas petition de novo. See Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). We reverse and remand to the district court for an evidentiary hearing.

On October 14, 1974, Scott was arrested for the murder of Lynette Blake and for the attempted murder of Janice Crisp. During custodial interrogation, Scott made incriminating statements. The state trial court denied Scott's pretrial motion to suppress these statements, and they were admitted into evidence at trial.

On direct appeal, Scott claimed, among other things, that his fifth and sixth amendment rights were violated when he was coerced into making incriminating statements after he had requested assistance of counsel. The Nevada Supreme Court affirmed Scott's conviction, addressing the coercion claim, but ignoring his claim that he was denied assistance of counsel during custodial investigation. See Scott v. State, 92 Nev. 552, 554, 554 P.2d 735, 736 (1976). Scott then petitioned for a writ of habeas corpus, (Habeas I), which was summarily dismissed for failure to exhaust state remedies. In an attempt to exhaust his state remedies, Scott returned to state district court where he petitioned for post-conviction relief, (PCR I).

In PCR I, Scott raised an ineffective assistance of counsel claim, complaining that his appellate counsel failed to call a witness who would have verified that he had invoked his right to counsel. PCR I was dismissed without an evidentiary hearing and the Nevada Supreme Court affirmed. Scott v. Warden, 94 Nev. 726, 587 P.2d 36 (1978).

In May 1980, Scott again petitioned for a writ of habeas corpus (Habeas II). In it he raised nine issues, including a sixth amendment claim asserting denial of assistance of counsel during custodial investigation. The court ruled summarily on six of the issues, and subsequently dismissed the other three without an evidentiary hearing after considering answers submitted by the state. Scott appealed from the district court's dismissal of Habeas II. This court vacated the district court's ruling on the grounds that Scott's state remedies, with respect to his sixth amendment denial of counsel claim, had not been exhausted.

Scott then returned to state district court (PCR II), where he was chastised by the judge for bringing a repetitive appeal. Thinking that he must have exhausted his state remedies, Scott brought this, his third habeas petition (Habeas III) in federal district court. Because he had by-passed an appeal of PCR II to the Nevada Supreme Court, the federal district court assumed that Scott's state remedies remained unexhausted. The district court dismissed Habeas III on the ground that the petition contained an unexhausted claim.

Scott asserts, as a threshold matter, that an adequate review of the record will indicate that his state remedies have been exhausted.¹  On September 25, 1990, the record before this court was supplemented with a copy of the brief Scott filed on his direct appeal to the Supreme Court of Nevada. The text of the brief clearly supports Scott's assertion that he raised fifth, sixth, and fourteenth amendment claims on direct appeal to the Supreme Court of Nevada. Despite the Supreme Court's failure to address these claims in its opinion, Scott has exhausted his state remedies with respect to his fifth and sixth amendment claims, and is properly in federal court. Thus, the district court erred in failing to address the merits of this claim.

Scott asks this court to rule on the merits of his claims despite the district court's failure to reach the merits. This would be inappropriate. The resolution of Scott's claim, that he requested, and was denied, assistance of counsel during custodial investigation, turns on findings of fact. Because the district court is the appropriate forum for making factual determinations, we remand this proceeding, Habeas III, to the district court for an evidentiary hearing.

Under Townsend v. Sain, 372 U.S. 293 (1963), a petitioner must receive an evidentiary hearing if the state court did not resolve the merits of the factual dispute, or if for any reason it appears that the state court did not afford the habeas petitioner a full and fair fact hearing. Id. at 312. In this case, it appears from the record that the Nevada Supreme Court did not address Scott's sixth amendment claim. Instead that court characterized the issue surrounding Scott's custodial interrogation as a question of coercion. Scott v. State, 92 Nev. at 554, 554 P.2d at 736. A review of the federal district court's dismissal of Scott's habeas petition is likewise devoid of a clear resolution of the underlying factual dispute regarding Scott's request for assistance of counsel. Therefore, on remand, the district court should conduct an evidentiary hearing to establish whether Scott requested and was denied access to counsel during custodial interrogation. See Norris, 878 F.2d at 1183.² 

The other issues raised by Scott in Habeas III are issues of law. The district court adequately resolved these issues in Habeas II. Pursuant to section 2244(a) the district court need not consider these issues again on remand as there is nothing new about them, and "the ends of justice will not be served by such inquiry." 28 U.S.C. § 2244(a) (1988).

REVERSED AND REMANDED.