                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 06 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DOUGLAS BRIAN MCSHANE,                           No. 12-55575

              Petitioner - Appellee,             D.C. No. 5:09-cv-01243-CAS-
                                                 VBK
  v.

MATTHEW CATE, Secretary, California              MEMORANDUM*
Department of Corrections and
Rehabilitation,

              Respondent - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                        Argued and Submitted July 10, 2013
                               Pasadena, California

Before: WARDLAW, BYBEE, and NGUYEN, Circuit Judges.

       Respondent Matthew Cate appeals the district court’s conditional grant of

Petitioner Douglas Brian McShane’s petition for a writ of habeas corpus. The facts

are known to the parties. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2253. We review de novo the district court’s grant of a petition for a writ of

habeas corpus. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc).

We VACATE the district court’s judgment and REMAND for further proceedings.

      In Cullen v. Pinholster, the Supreme Court held that “evidence introduced in

federal court has no bearing on § 2254(d)(1) review.” 131 S. Ct. 1388, 1400

(2011). “If a claim has been adjudicated on the merits by a state court, a federal

habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that

was before that state court.” Id.; see also id. at 1400 n.7 (noting that an

unreasonable determination of fact under § 2254(d)(2) must be unreasonable “in

light of the evidence presented in the State court proceeding,” and stating that

“[t]he additional clarity of § 2254(d)(2) on this point . . . does not detract from our

view that § 2254(d)(1) also is plainly limited to the state-court record” (emphasis

added)). The Supreme Court further stated:

             Section 2254(e)(2) continues to have force where
             § 2254(d)(1) does not bar federal habeas relief. For
             example, not all federal habeas claims by state prisoners
             fall within the scope of § 2254(d), which applies only to
             claims “adjudicated on the merits in State court
             proceedings.” At a minimum, therefore, § 2254(e)(2) still
             restricts the discretion of federal habeas courts to consider
             new evidence when deciding claims that were not
             adjudicated on the merits in state court.




                                           2
Id. at 1401. After Pinholster, we have held that a federal habeas court may

consider new evidence only on de novo review, subject to the limitations of

§ 2254(e)(2). See Stokley v. Ryan, 659 F.3d 802, 808 (9th Cir. 2011).

      In December 2010, prior to the Supreme Court’s decision in Pinholster, the

federal magistrate judge conducted an evidentiary hearing. Following

supplemental briefing regarding the potential effect of Pinholster, the magistrate

judge issued a Report and Recommendation in which he discussed Pinholster’s

limitations on evidence which can be properly considered on federal habeas

review. In light of Pinholster, the magistrate judge stated: “As will be shown

below, based solely on the state court record, assuming the truth of the allegations

and evidence that Petitioner presented, the Court finds that the San Bernardino

County Superior Court’s finding that Petitioner failed to set forth a prima facie

showing that he is entitled to relief was objectively unreasonable.” The magistrate

judge continued, however, to summarize in detail the evidence that was presented

at the federal evidentiary hearing in December 2010. Further, in numerous

instances, the magistrate judge’s analysis of McShane’s ineffective assistance of

counsel claim referred to testimony presented at the federal evidentiary hearing.

The district court accepted the magistrate’s Report and Recommendation, without

exception and with no discussion or explanation.


                                          3
      It is apparent that the § 2254(d) review in this case was affected, perhaps

unwittingly, by evidence adduced at the December 2010 evidentiary hearing.

However, because the California courts considered McShane’s claims on the

merits, proper AEDPA review in this case requires consideration of only the

evidence that was before the state court in determining whether § 2254(d) is

satisfied. Pinholster, 133 S. Ct. at 1400–01 & n.7. It is clear from the face of the

Report and Recommendation—as accepted by the district court—that the

magistrate judge considered materials outside of the record that was before the

state court in making its § 2254(d) determination. This was error under Pinholster.

      We VACATE the district court’s judgment and REMAND this case for the

district court for further proceedings to properly consider both of McShane’s

claims pursuant to Pinholster.1

      VACATED AND REMANDED.




      1
         In light of the fact that the magistrate judge has extensively reviewed
evidence that was outside the record before the state court and already has come to
a decision based partially on that evidence, and in order to preserve the appearance
of justice, we recommend that a different magistrate judge review this case on
remand. We leave to the district court the question whether it should consider
transferring this case to a district court judge who has not reviewed the evidence in
the context of making the § 2254(d) determinations.

                                          4
