A convicted killer serving two life sentences for the 1998 murder of a Las Vegas gang member may get a new lease on life.
The 9th Circuit Court of Appeals on Monday vacated and sent back a lower court's decision to deny Brendan James Nasby's habeas corpus petition. Nasby has routinely maintained his innocence and, as the federal appeals court noted in its opinion, "was hardly well-represented at trial."
"[Nasby's] state-appointed counsel opened with a joke about the likely length of Nasby's sentence," the 9th Circuit wrote in its opinion. "Although counsel submitted a list of alibi witnesses, he did not call a single one of them at trial. He failed to investigate other witnesses to support Nasby's position, and failed to introduce important evidence on Nasby's behalf. After a seven-day trial, the jury found Nasby guilty of murder with the use of a deadly weapon and of conspiracy to commit murder. The judge sentenced Nasby to two life sentences to run consecutively, along with 120 months for the conspiracy conviction.
"After sentencing, Nasby's counsel, Joseph S. Sciscento, informed the court of a conflict of interest. He explained that he had accepted and begun employment with the Special Public Defender's Office prior to trial — an office that concurrently represented one of Nasby's co-defendants, who had testified against him at trial."
Nasby argued that his rights were violated and cited prosecutorial misconduct, the use of coerced testimony, ineffective assistance of trial and appellate counsel, and errors in instructions to the jury. The 9th Circuit ruled on Monday that the district court "failed to examine important parts of the record of the state court proceedings in its adjudication of Nasby's claims."
"Specifically, the district court never obtained or reviewed the transcript of Nasby's trial or the transcript of the evidentiary hearing that the state court conducted on collateral review," the 9th Circuit noted. "Nor did the district court conduct an evidentiary hearing on Nasby's claims. Instead, it simply relied on the facts as described in the Nevada Supreme Court's opinion denying Nasby relief.
"On remand, the district court should order the state to submit the relevant portions of the state court record and, after examining them, newly adjudicate Nasby's petition. Regardless of what documents the parties originally submit, it is the district court's independent obligation to obtain the relevant portions of the record."
News reports from the time of Nasby's conviction nearly 20 years ago appear to paint a different picture of the convicted killer. The Las Vegas Sun reported, "Nasby had persuaded a female friend to attack one of the witnesses in the case with a hammer," and that at his sentencing, "Nasby didn't plead for leniency so much as complain about what he said were squalid conditions in the isolation cells that included urine-soaked mattresses requiring him to wash himself with bleach to quell the smell."