                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 06a0057p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                           X
                                    Petitioner-Appellee, -
 DARELL NASH, SR.,
                                                            -
                                                            -
                                                            -
                                                                No. 05-3499
             v.
                                                            ,
                                                             >
 MICHELLE EBERLIN,                                          -
                                  Respondent-Appellant. -
                                                           N
                            Appeal from the United States District Court
                             for the Northern District of Ohio at Akron.
                            No. 04-00435—James Gwin, District Judge.
                                     Argued: December 8, 2005
                              Decided and Filed: February 10, 2006
                  Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.
                                         _________________
                                             COUNSEL
ARGUED: Jerri L. Fosnaught, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellee. ON BRIEF: Jerri
L. Fosnaught, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Kevin
M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellee.
                                         _________________
                                             OPINION
                                         _________________
        KAREN NELSON MOORE, Circuit Judge. This is an appeal from the district court’s grant
of habeas relief to Petitioner-Appellee Darell Nash, Sr. (“Nash”). Nash was convicted in Ohio state
court of felonious assault, and he sought habeas relief on the basis that the manifest weight of the
evidence did not support his conviction. The State argues that the district court erred in construing
Nash’s manifest-weight-of-the-evidence claim as a claim for insufficiency of the evidence and that
Nash is not entitled to habeas relief on the basis of insufficiency. Nash asserts that the district court
correctly concluded that there was insufficient evidence that he intended to harm his wife when he
fired a gun in the course of a struggle with his son. Nash also filed a renewed motion for release
with this court, arguing that there is no basis for the continued stay of the district court’s order. We
VACATE the district court’s grant of Nash’s petition for a writ of habeas corpus and REMAND
the case to the district court for review of the state-court trial transcript. We also DENY Nash’s
renewed motion for release.



                                                   1
No. 05-3499                Nash v. Eberlin                                                                         Page 2


                                                I. BACKGROUND
         On December 11, 2001, Connie Nash (“Connie”) received a call at the nursing home where
she worked from her husband’s girlfriend. After finishing her shift at work, Connie came home and
found Nash and a friend in the Nashes’ kitchen playing cards. Connie told Nash’s friend to leave
so that she could speak with Nash. As he was standing up, Nash bumped Connie with his chair, and
she “started swinging on him.” Joint Appendix (“J.A.”) at 148 (Tr. at 94). Nash got out of his chair
and grabbed Connie, and they began to fight. She tripped over a highchair and fell down. The
Nashes’ adult son, Darell Nash, Jr. (“Darell Jr.”), and their nephew, William Jeter, heard the noise
and came up from the basement; they found Connie and Nash screaming at each other.
       Nash ran upstairs and then returned with a .9-millimeter handgun.1 The handgun was loaded.
Upon seeing the gun, Darell Jr. grabbed Nash, which caused the gun to fire into the ground. Connie
went into the Nashes’ daughter’s  room, and Nash followed her. Darell Jr. again grabbed Nash, and
the gun fired into the wall.2 Nash then put the gun away upstairs and left the house in his car.
        Connie called the police, who came to the Nashes’ house. Nash called the house while the
police were there, and a detective listened in while Darell Jr. spoke with Nash on the phone.
According to the detective, Nash stated, “[S]he did it this time. You can tell her she doesn’t have
a job any longer because I’m going to F’ing kill her.” State v. Nash, No. 2002CA00106, 2003 WL
139783, at *1 (Ohio Ct. App. Jan. 13, 2003). Nash also asked Darell Jr. “whether Connie had
‘cool[ed] down yet so that he could come home and talk things over.’” Id.
        Nash gave a statement to the police in which he said “that he went upstairs and got the gun
in order to scare his wife.” Id. At trial, however, he testified that “his ‘intention was to take the gun
out of the house.’” Id. “[Nash], during his testimony, also testified that the handgun went off
accidentally and denied making the threats that the Detective overheard him making during the
telephone call.” Id.
         Nash was indicted by the Stark County Grand Jury for improperly discharging a firearm at
or into a habitation or school safety zone and for knowingly causing or attempting to cause physical
harm to Connie Nash by means of a deadly weapon or dangerous ordnance. Both charges had a
firearm specification. On March 5, 2002, a jury found Nash guilty on both counts, and he was
subsequently sentenced to a total of five years of incarceration. Nash appealed to the Fifth District
Court of Appeals of Ohio, which      overturned his conviction for discharging a firearm at or into a
habitation or school safety zone3 and upheld his conviction for felonious assault. Nash, 2003 WL

         1
           At this point in the narrative, Connie’s testimony at trial directly contradicted the original statement she gave
to the police on December 11, 2001. Her trial testimony was based on a letter she sent to the police on January 25, 2002,
which she claimed to have written to “tell the truth about what really happened.” J.A. at 164 (Tr. at 110). She testified
that Nash walked away from her after they were fighting, and she then left the house with the intention of breaking the
window of his car. Connie stated that she could not find a brick or rock in the back, so she proceeded to the front of the
house to retrieve a tire iron from her truck. At that point, she said that she heard Nash’s car start and that he then left.
When confronted at trial with her original statement to the police, Connie explained that she was upset with Nash and
she wanted to hurt him at the time of the incident, but that she was telling the truth in her January 2002 letter.
         2
           The State asserts that at this point, “the gun discharged in the direction of Nash’s wife.” Br. Appellant at 49.
At oral argument, the State’s attorney explained that evidence of this fact was presented to the jury. As will be discussed
below, the district court did not have a copy of the full state-court trial transcript before it, and this evidence was not
considered as a part of the habeas determination. (Nash attached the portion of the state-court trial transcript covering
Connie’s testimony to his traverse filed with the district court on July 27, 2004.)
         3
          Nash’s conviction was based upon the following statute:
         (A) No person, without privilege to do so, shall knowingly do any of the following:
               (1) Discharge a firearm at or into an occupied structure that is a permanent or temporary
No. 05-3499              Nash v. Eberlin                                                                   Page 3


139783, at *3. With regard to the felonious assault charge, the state appellate court held that Nash’s
conviction was not against the manifest weight of the evidence:
        Upon our review of the record, we find that appellant acted knowingly when, after
        arguing with his wife, he went upstairs to retrieve the gun. As is stated above,
        appellant told the police that he had retrieved the same in order to scare his wife. We
        concur with appellee that “[r]eturning to the argument in this situation gives rise to
        a probable result that the gun may go off.”
Id. One judge dissented in part, stating that “the facts herein do not support a conviction of
felonious assault.” Id. at *4 (Hoffman, P.J., dissenting in part). Nash filed an appeal with the Ohio
Supreme Court, which denied leave to appeal because the case did not involve a “substantial
constitutional question.” J.A. at 124 (Entry).
        On February 3, 2004, Nash filed a petition for habeas relief in federal district court pursuant
to 28 U.S.C. § 2254. The habeas petition — which Nash filed pro se — listed one ground for relief:
“Felonious assault conviction was against the manifest weight of the evidence.” J.A. at 8 (Habeas
Pet.). The State filed a return of writ on June 21, 2004, arguing that Nash did not state a cognizable
claim for federal habeas review because a manifest-weight-of-the-evidence claim is a matter of state
law. The State further asserted that even if construed as a claim based on sufficiency of the
evidence, Nash should still not prevail. On July 27, 2004, Nash filed a traverse to the State’s return
of writ in which he raised the issue of sufficiency of the evidence; he argued that his rights under
the Fourteenth Amendment were violated when he was convicted of felonious assault without proof
of intent.
         A magistrate judge filed a report on November 5, 2004, recommending that habeas relief be
denied. On April 1, 2005, the district court granted Nash’s § 2254 petition. The district court
ordered the State to release Nash from custody “within 30 days of this order.” J.A. at 199 (J.).
Although Nash’s manifest-weight-of-the-evidence claim did not raise an issue of federal law, the
district court liberally construed his petition to raise a claim based on sufficiency of the evidence.
The district court concluded that “[e]ven viewing the facts in the light most favorable to the
prosecution, a rational trier of fact could not conclude beyond a reasonable doubt that the petitioner
knowingly caused or attempted to cause physical harm to his wife or to anyone else.” J.A. at 195
(Op.).
        On April 12, 2005, the State filed a motion requesting a stay of the district court’s judgment
in favor of Nash. On the same day, the State filed a notice of appeal with this court. The district
court denied the State’s motion for a stay on April 28, 2005. The State then filed in this court an
emergency motion for a stay of judgment pending appeal. A judge of this court entered an order on
April 29, 2005, temporarily staying the district court’s judgment. A three-judge panel reviewed the
case, and on June 9, 2005, granted the State’s motion for a stay, ordered that counsel be appointed
to represent Nash in his appeal, and ordered an expedited submission of the case to a merits panel.
On August 18, 2005, Nash filed a renewed motion for release, and the State filed an opposition to
Nash’s motion.




                     habitation of any individual . . . .
OHIO REV. CODE § 2923.161. The state appellate court concluded that conviction pursuant to § 2923.161 was against
the manifest weight of the evidence because “there is no evidence that appellant discharged his firearm at or into a
habitation.” Nash, 2003 WL 139783, at *3 (emphasis added).
No. 05-3499               Nash v. Eberlin                                                                     Page 4


                                                 II. ANALYSIS
A. Standard of Review
        “This court reviews a district court’s grant of a writ of habeas corpus de novo.” Sanford v.
Yukins, 288 F.3d 855, 859 (6th Cir.), cert. denied, 537 U.S. 980 (2002). Thus, we affirm the district
court’s grant of the writ if the requirements of 28 U.S.C. § 2254(d) are satisfied:
         An application for a writ of habeas corpus on behalf of a person in custody pursuant
         to the judgment of a State court shall not be granted with respect to any claim that
         was adjudicated on the merits in State court proceedings unless the adjudication of
         the claim —
         (1) resulted in a decision that was contrary to, or involved an unreasonable
              application of, clearly established Federal law, as determined by the Supreme
              Court of the United States; or
         (2) resulted in a decision that was based on an unreasonable determination of the
              facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
B. District Court Review of the State-Court Trial Transcript
        The state-court trial transcript was not included in the record on appeal to this court, nor was
it included or referenced in the district court docket.4 The district court relied on the state appellate
court’s statements of fact in its determination of Nash’s claims;5 the state appellate court concluded
that Nash’s conviction was not against the manifest weight of the evidence, and the district court
concluded that there was insufficient evidence to support Nash’s conviction. Nash, 2003 WL
139783, at *3; J.A. at 195-96 (Op.). The State asserted before this court (in its brief and at oral
argument) that Nash fired the gun in Connie’s direction when they were in their daughter’s bedroom,
whereas the statement of the state appellate court that was relied upon by the district court merely
observed without further detail that the gun fired into a wall. Br. Appellant at 49; Nash, 2003 WL
139783, at *1; J.A. at 187 (Op.). The State’s attorney explained at oral argument that this
information regarding the direction of the firing of the gun was presented to the jury but was not
included in the record before the district court. Whether the gun was fired in Connie’s direction is
a fact that may be important for our determination of the merits of Nash’s claim because of its
relevance to the question of whether Nash knowingly attempted to harm his wife. We thus consider
whether it is appropriate to remand this case to the district court to review the state-court trial
transcript.
        Rule 5(c) of the Rules Governing Section 2254 Cases states that “[t]he respondent must
attach to the answer parts of the transcript that the respondent considers relevant.”6 In addition,
“[t]he judge may order that the respondent furnish other parts of existing transcripts or that parts of
untranscribed recordings be transcribed and furnished.” Rule 5(c), Rules Governing Section 2254
Cases. Regardless of any burden on the respondent to provide transcripts along with the answer,

         4
          The State’s attorney acknowledged at oral argument that the full state-court trial transcript had not been
presented to the district court.
         5
          The district court explained that “factual determinations by state courts receive a rebuttable presumption of
correctness” on habeas review. J.A. at 187 (Op.); 28 U.S.C. § 2254(e)(1).
         6
         The respondent is not required to file an answer to a habeas petition “unless a judge so orders.” Rule 5(a),
Rules Governing Section 2254 Cases.
No. 05-3499                 Nash v. Eberlin                                                                       Page 5


there are cases that emphasize the importance of federal court review of such transcripts. In Adams
v. Holland, 330 F.3d 398, 405-06 (6th Cir. 2003), cert. denied, 541 U.S. 956 (2004), the petitioner
sought to amend the record before this court   to include portions of the state-court trial transcript that
were not presented to the district court.7 The transcript excerpts at issue were relevant to the
petitioner’s Confrontation Clause claim. Id. at 405. We held that it was improper to expand the
record in this manner, and, further, that the district court judge should have reviewed the transcript.
Id. at 406. The Adams opinion cites a number of cases for the “proposition that the District Court
must have the trial transcript before it when making habeas determinations.” Id. Adams concluded
that in cases in which the district court does not review the state-court trial transcript, the case must
be remanded for further findings. Id. at 406; see also Hall v. Arbogast, No. 88-5529, 1989 WL
119371, at *1 (6th Cir. Oct. 12, 1989) (stating that “[a] review of the state court transcript is usually
necessary in habeas cases” and granting the petitioner’s motion to remand) (citing Townsend v. Sain,8
372 U.S. 293, 319 (1963), partially overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992)).
        Review of the state-court trial transcript may be particularly appropriate in cases involving
sufficiency-of-the-evidence claims, because the test to be applied requires a review of all of the
evidence: “the relevant  question is whether, after viewing the evidence in the light most favorable
to the prosecution,9 any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States
v. Rabinowitz, 327 F.2d 62, 65 (6th Cir. 1964) (noting that a court must conduct a “meticulous
review of the record” in order to determine properly whether sufficient evidence was presented in
a case before it). In fact, there is a statutory requirement that pertinent portions of the trial
transcripts be provided in cases involving sufficiency-of-the-evidence claims:
         If the applicant challenges the sufficiency of the evidence adduced in such State
         court proceeding to support the State court's determination of a factual issue made
         therein, the applicant, if able, shall produce that part of the record pertinent to a
         determination of the sufficiency of the evidence to support such determination. If
         the applicant, because of indigency or other reason is unable to produce such part of
         the record, then the State shall produce such part of the record and the Federal court
         shall direct the State to do so by order directed to an appropriate State official. If the
         State cannot provide such pertinent part of the record, then the court shall determine
         under the existing facts and circumstances what weight shall be given to the State
         court's factual determination.
28 U.S.C. § 2254(f). This language underscores the importance of an independent review of the
state-court record on the part of the federal courts with respect to sufficiency-of-the-evidence claims.


         7
             Federal Rule of Appellate Procedure 10 sets forth the requirements regarding the record on appeal.
         8
           Townsend established a test for determining when evidentiary hearings were required in habeas proceedings.
Townsend, 372 U.S. at 312. The Townsend opinion states as follows:
          A District Court sitting in habeas corpus clearly has the power to compel production of the complete
          state-court record. Ordinarily such a record — including the transcript of testimony (or if unavailable
          some adequate substitute, such as a narrative record), the pleadings, court opinions, and other pertinent
          documents — is indispensable to determining whether the habeas applicant received a full and fair
          state-court evidentiary hearing resulting in reliable findings.
Id. at 319. Neither the current version of § 2254 nor the Rules Governing Section 2254 Cases appear to negate the above
statement from Townsend.
         9
         Jackson states that “[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as
weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319.
No. 05-3499           Nash v. Eberlin                                                            Page 6


        A 1986 unpublished opinion of this court explained that “while perhaps not invariably
required, an examination of the trial transcript should usually be carefully undertaken before a
habeas corpus court endeavors to pass upon the constitutional sufficiency of the evidence, especially
where it would strike down what has been upheld in all of the state court proceedings.” Crum v.
Scroggy, No. 85-5481, 1986 WL 17202, at *1 (6th Cir. June 17, 1986). The Crum court accordingly
vacated the district court’s grant of the petition for a writ of habeas corpus and remanded the case
for further proceedings. Id. at *2. Two other cases from this court emphasize the importance of
reviewing the transcript in the course of conducting a sufficiency-of-the-evidence analysis. In
Bronston v. Rees, 773 F.2d 742, 743 (6th Cir. 1985), we explained that we had first remanded the
case to the district court “with instructions that the actual transcripts of defendant’s trial be filed”
after concluding that the case presented a sufficiency issue, and in Delk v. Atkinson, 665 F.2d 90,
94 (6th Cir. 1981), we explained that “[t]he evidence has been summarized and discussed in three
opinions. Nevertheless, we are required to make an independent determination of its sufficiency
under the Jackson v. Virginia standard and have read the transcript of the trial for this purpose.”
Other circuits have also concluded that a review of the state-court trial transcript is necessary for
sufficiency-of-the-evidence review. See, e.g., Magouirk v. Phillips, 144 F.3d 348, 363 (5th Cir.
1998) (“We are at a loss to understand how a federal habeas court can conduct a meaningful
sufficiency review without a transcript of trial.”); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.
1997) (holding that the lack of evidence that the magistrate judge examined the trial transcript in its
sufficiency-of-the-evidence analysis left the court “no alternative but to reverse” the denial of habeas
relief and remand for review of the transcript).
         We note that Loveday v. Davis, 697 F.2d 135 (6th Cir. 1983), rejected a strict rule requiring
a district court to read the state-court trial transcript in every habeas proceeding. The petitioner in
Loveday appealed from the district court’s denial of his petition for habeas relief on the basis of
insufficiency of the evidence, and he argued that the district court should not have denied his
petition without reviewing the state-court trial transcript. Id. at 136. We analyzed this case under
the previous version of § 2254(d), which set forth exceptions to the presumption of correctness given
to state-court factual findings. Id. at 136-37. The petition did not specifically challenge the state-
court factual findings, and it did not “seek to establish the existence of an exception to the
presumption [of correctness].” Id. at 139. We concluded that the “district court was not required,
given the allegations of the petition, to examine the trial transcript.” Id. Loveday prohibits the
imposition of a general rule requiring district courts to review the transcript in all cases, but it also
does not prevent us from remanding for such a review if we believe that extra information is
required. Neither Nash nor the State appear to challenge the state appellate court’s factual
statements; rather, the State cites evidence that may be in the trial transcript but simply was not
discussed in the state court’s opinion.
         In light of the precedent discussed above and the unique circumstances of this case, we
conclude that it is appropriate to vacate the district court’s judgment granting Nash’s petition for a
writ of habeas corpus and to remand the case to the district court for review of the full state-court
trial transcript.
C. Nash’s Motion for Release
        We have not yet ruled on Nash’s renewed motion for release requesting reconsideration of
this issue by the panel. Federal Rule of Appellate Procedure 23 states as follows:
        (c) Release Pending Review of Decision Ordering Release. While a decision
            ordering the release of a prisoner is under review, the prisoner must — unless
            the court or judge rendering the decision, or the court of appeals, or the Supreme
            Court, or a judge or justice of either court orders otherwise — be released on
            personal cognizance, with or without surety.
No. 05-3499                 Nash v. Eberlin                                                                             Page 7


         (d) Modification of the Initial Order on Custody. An initial order governing the
             prisoner’s custody or release, including any recognizance or surety, continues
             in effect pending review unless for special reasons shown to the court of appeals
             or the Supreme Court, or to a judge or justice of either court, the order is
             modified or an independent order regarding custody, release, or surety is issued.
Rule 23(c) “‘creates a presumption of release from custody’” which “may be overcome in the
appellate court ‘for special reasons shown.’” Workman v. Tate, 958 F.2d 164, 166 (6th Cir. 1992)
(quoting Hilton v. Braunskill, 481 U.S. 770, 774 (1987)).
       Rule 23(c) creates a presumption of release while a “decision ordering the release of a
prisoner is under review.” Because we are vacating the district court’s judgment granting Nash’s
request for habeas relief, this case is no longer “under review”  here. Rule 23(c) is thus now
inapplicable, and Nash’s renewed motion for release is denied.10
                                                  III. CONCLUSION
        For the reasons discussed above, we VACATE the district court’s judgment granting Nash’s
petition for a writ of habeas corpus and REMAND the case to the district court for review of the
state-court trial transcript. We also DENY Nash’s renewed motion for release.




         10
             Although Nash’s motion before this court cannot be granted because this case is no longer “under review,”
the district court has inherent authority to grant Nash bail while it reconsiders his petition with the benefit of the full trial
record. See Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (citing In re Shuttlesworth, 369 U.S. 35, 35 (1962)
(per curiam) (for the proposition “that after petitioner seeks bail from state court, district court should ‘proceed to hear
and determine the cause, including any application for bail pending that court’s final disposition of the matter’”) In re
Wainwright, 518 F.2d 173, 174 (5th Cir. 1975) (per curiam) (“In spite of the lack of specific statutory authorization, it
is within the inherent power of a District Court of the United States to enlarge a state prisoner on bond pending . . .
decision on his application for a writ of habeas corpus.”)); see also Lee v. Jabe, 989 F.2d 869 (6th Cir. 1993) (reviewing
a district court’s denial of bail pending the district court’s consideration of a habeas petition). The district court may
release petitioners on bail if there is a “substantial claim of law” and “the existence of ‘some circumstance making [the
motion for bail] exceptional and deserving of special treatment in the interests of justice.’” Lee, 989 F.2d at 871 (quoting
Aronson v. May, 85 S. Ct. 3, 5 (1964) (Douglas, J., in chambers)). We leave it to the district court to exercise its
discretion in the first instance with regard to this issue.
