A Nevada man, convicted of a gang-related murder in 1999 that he says he did not commit, has won the right to an evidentiary hearing into his claim of prosecutor misconduct and ineffective assistance of his trial lawyer.
The 9th U.S. Circuit Court of Appeals Monday ordered a full evidentiary hearing for Brendan Nasby, who was convicted of murder and conspiracy in the 1998 murder of Michael Beasley.
The panel agreed Nasby us entitled to a review of his assertion that the prosecutor used coerced testimony and that his lawyer was so incompetent he opened trial with a joked to jurors about how long Nasby would be in jail and failed to call a single on of Nasby’s alibi witnesses.
Nasby also alleged seven instances of prosecutor misconduct, saying to government offered other gang members significantly reduced sentences in exchange for testimony against Nasby and threatened them with contempt if they did not do so.
His previous state appeals were rejected. But the 9th Circuit held that failure to give Nasby a hearing on his claims constituted a constitutional violation.
The appeals court noted that the state of Nevada failed to submit a trial transcript to the district court, which decided the case without benefit of the that record. It must review the state court record in order to provide an adequate habeas review, wrote Judge Stephen Reinhardt, for the panel.
Nasby maintained his innocence and his trial lawyer submitted a list of alibi witnesses but failed to call any to testify at trial and failed to investigate other witnesses to support Nasby’s position, according to the court.
Nasby was sentenced to two life sentences to run consecutively and 10 years for the conspiracy conviction.
Case: Nasby v. McDaniel, No. 14-17313