                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0032n.06
                            Filed: January 9, 2008

                                           No. 05-6803

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


STEVEN D. KING,                                          )
                                                         )        ON APPEAL FROM THE
       Petitioner-Appellant,                             )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE WESTERN
v.                                                       )        DISTRICT OF TENNESSEE
                                                         )
WAYNE BRANDON,                                           )                             ORDER
                                                         )
       Respondent-Appellee.                              )
                                                         )




BEFORE:        BATCHELDER, COLE, and GRIFFIN, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Steven D. King, a Tennessee state prisoner, appeals

the denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. In 1995,

a jury convicted King of felony murder, especially aggravated kidnapping, and especially aggravated

robbery, and sentenced him to life in prison. His conviction was upheld on direct appeal, and his

post-conviction proceeding was also unsuccessful. In this petition for federal habeas corpus relief,

he raised claims of insufficient evidence, erroneous admission of his confession, and ineffective

assistance of counsel. The district court sua sponte dismissed all but two of King’s thirteen claims

of ineffective assistance of counsel, as well as the claims of insufficient evidence and erroneous

admission of the confession. After response from the state, the district court found his remaining

two claims of ineffective assistance to be procedurally defaulted and entered a final judgment. We
No. 056803
King v. Brandon

granted a certificate of appealability on the issue of whether a remand was required because the

district court did not have the state court records when it sua sponte dismissed most of King’s claims,

citing Adams v. Holland, 330 F.3d 398, 406 (6th Cir. 2003); counsel was also appointed.

       In his brief, King’s appointed counsel argues that a remand is required, particularly with

respect to King’s claims of ineffective assistance of counsel regarding trial counsel’s opening and

closing arguments and allegedly inflammatory statements to the jury, because the district court did

not review the transcript of the trial in dismissing these claims. The warden argues that King’s

failure to challenge the state courts’ factual determinations obviated any need for the district court

to review the state court records. The warden also raises for the first time, on the last page of his

brief, a meritless argument that the petition was barred by the statute of limitations. This argument

relies on an erroneous recitation of the date on which the Tennessee Supreme Court declined review

in the post-conviction proceeding, which occurred on May 19, 2003, as documented on page 235 of

the Joint Appendix, and not March 19, 2003, as respondent argues.

       Whether a district court erred in summarily dismissing a habeas corpus petition is a question

of law we review de novo. Clark v. Waller, 490 F.3d 551, 554 (6th Cir. 2007). De novo review in

this case indicates that a remand is required to allow for review of the state court records. Where

a state court opinion summarizes the relevant facts before analyzing a claim, a petitioner in a habeas

corpus proceeding is required to dispute the evidence as summarized by the state court. Id. at 555-

56. Otherwise, the state court’s determination of the facts is presumed correct. Armstrong v.

Morgan, 372 F.3d 778, 781 (6th Cir. 2004). In this case, the state court in the post-conviction

proceeding did not summarize the facts relevant to several claims raised which would require review

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No. 056803
King v. Brandon
of the trial transcript, including King’s claims that counsel’s opening and closing arguments were

ineffective, that counsel failed to properly cross-examine or impeach witnesses, that counsel made

inflammatory statements to the jury, or that counsel allowed false evidence to be presented.

       Because the state court made no factual findings with regard to these claims, there were no

specific findings for King to dispute. The facts on which these claims relied were contained in the

trial transcript, which was not before the district court. In Adams, 330 F.3d at 405-06, the

petitioner’s claims similarly relied on facts from a transcript which was not before the district court

for review, and it was determined that remand was required for the district court to examine the

transcript. Also, in Nash v. Eberlin, 437 F.3d 519, 525-26 (6th Cir. 2006), the state contended that

there was evidence in the transcript which would support its position, requiring a remand because

the district court did not have access to the transcript in making its ruling.

       Accordingly, we VACATE the district court’s sua sponte dismissal of King’s claims of

ineffective assistance of counsel and REMAND King’s claims in their entirety to the district court

to be addressed after review of the state court records.




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