                             NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 12a0447n.06
                                                                                                          FILED
                                                   No. 08-3142                                      Apr 30, 2012
                                UNITED STATES COURT OF APPEALS                               LEONARD GREEN, Clerk
                                     FOR THE SIXTH CIRCUIT


JOY LOVELL,                                           )
                                                      )
         Petitioner-Appellee,                         )
                                                      )    ON APPEAL FROM THE UNITED
v.                                                    )    STATES DISTRICT COURT FOR THE
                                                      )    SOUTHERN DISTRICT OF OHIO
SHERI DUFFEY, Warden                                  )
                                                      )    OPINION
         Respondent-Appellant.                        )
                                                      )


         Before: GILMAN and WHITE, Circuit Judges; and THAPAR, District Judge.*

         RONALD LEE GILMAN, Circuit Judge. This court’s judgment entered on January 6,

2011 was vacated by the Supreme Court on March 26, 2012 and the case remanded for further

consideration in light of Cullen v. Pinholster, 131 S. Ct. 1388 (2011). The Court in Pinholster held

that federal habeas review under 28 U.S.C. § 2254(d)(1) “is limited to the record that was before the

state court that adjudicated the claim on the merits.” 131 S. Ct. at 1398.

         In the case before us, Lovell petitioned the United States District Court for the Southern

District of Ohio for habeas relief from her state-court drug conviction, asserting that she had received

ineffective assistance of counsel when she declined the prosecution’s guilty-plea offer. Lovell had

properly exhausted her ineffective-assistance-of-counsel claim in state court, where the court held

an evidentiary hearing and denied the claim on its merits. The district court nevertheless conducted


        *
          The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
its own evidentiary hearing on Lovell’s ineffective-assistance claim, allowing both parties to present

evidence that was not in the state-court record. Relying at least in part on the newly presented

evidence, the district court conditionally granted habeas relief under § 2254(d)(1).

       We reversed the judgment of the district court on appeal and reinstated Lovell’s conviction.

But in doing so, we also relied on evidence that was not in the state-court record, which Pinholster

now prohibits. We therefore REMAND this case to the district court for reconsideration in light of

Pinholster.
