                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              AUG 17 2011

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

DEVIN C. MURPHY,                                 No. 08-56701

              Petitioner - Appellant,            D.C. No. 2:08-cv-01313-GPS-
                                                 FMO
  v.

GARY SANDOR, Warden,                             MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   George P. Schiavelli, District Judge, Presiding

                       Argued and Submitted August 1, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and PANNER, Senior
District Judge.**



       California state inmate Devin Murphy appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. He challenges his sentence on the ground

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Owen M. Panner, Senior District Judge for the U.S.
District Court for Oregon, Portland, sitting by designation.
that the trial court lacked sufficient evidence to find that his prior burglary

conviction qualified as a “serious prior felony” warranting a five-year sentence

enhancement under California’s Three Strikes law. See Cal. Penal Code §§

667(a)(1), (b)-(i); 1170.12(a)-(d). That law includes first-degree but not second-

degree burglary within the definition of a serious prior felony. Id. at § 1192.7 (18).

      The prosecution submitted two exhibits in support of its contention that

Murphy’s prior conviction was for first rather than second-degree burglary. The

first exhibit included Murphy’s booking card, which, as the California Court of

Appeal observed, could not and does not indicate the charge to which he ultimately

pled guilty. The second exhibit is a minute order contained in the record of the

underlying offense. The minute order offers the judge’s explanation regarding the

unusual circumstance that justified probation in this case. The state appellate court

concluded that the minute order alone was sufficient for the trial court to have

found that Murphy had been convicted of first-degree burglary because applicable

state law required that a grant of probation for a first-degree but not second-degree

burglary conviction be expressly justified by the presence of unusual

circumstances. See Cal. Penal Code §§ 460(a), 462(a)-(b).

      An inference as to the nature of Murphy’s underlying offense based on the

court’s explanation of its decision to grant him probation constitutes speculation


                                          -2-
insufficient to support the conclusion that he had been convicted of first-degree

burglary. The judge could well have decided to offer an explanation for his

decision to grant probation following a conviction for second-degree burglary,

even though state law did not require him to do so. Neither the state appellate

court nor the prosecution contends that any additional evidence as to Murphy’s

prior conviction was contained in the record before the trial court. We hold that

the absence of evidence concerning Murphy’s underlying offense makes it

objectively unreasonable for the state appellate court to have concluded that any

rational trier of fact could have found that he was convicted of a serious prior

offense qualifying him for the recidivist sentence enhancement under California’s

Three Strikes law. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       Accordingly, we reverse the denial of habeas relief and remand to the district

court with instructions to grant the writ of habeas corpus unless the state court

undertakes resentencing proceedings within a reasonable time to be determined by

the district court.



                                               REVERSED AND REMANDED.




                                         -3-
                                                                                            FILED
                                    Murphy v. Sandor, 08-56701                               AUG 17 2011

PANNER, Senior District Judge, dissenting.                                              MOLLY C. DWYER, CLERK
                                                                                          U.S. COURT OF APPEALS


        The Ninth Circuit is the busiest regional court system in the United States. The court had

more than 16,000 pending appeals in 2007. That same year, the Central District of California,

from which this appeal arises, had more than 14,000 filings, which are handled by a mere 28

active Article III judges. While the interests of justice cannot be ignored to promote judicial

efficiency, the decision of the majority in this case sacrifices efficiency without advancing the

interests of justice.

        Here, the state requested that this court take judicial notice of the transcript of Murphy’s

1997 guilty plea. The transcript conclusively demonstrates that Murphy’s 1997 conviction was

for first degree burglary and that Murphy acknowledged the conviction qualified as a strike.

        This court may take judicial notice of documents that were not before the district court

when doing so serves the interest of judicial efficiency. See, e.g., United States v. Esquivel, 88

F.3d 722, 727 (9th Cir. 1996). When a remand would be a “waste of time,” the Ninth Circuit has

held that “judicial ping-ponging between the state and federal courts serves no useful purpose,”

and the court should act in the interest of judicial efficiency. Valerio v. Crawford, 306 F.3d 742,

770 (9th Cir. 2002) (en banc)(quotation marks and citations omitted). Here, this court should

take judicial notice of the transcript.

        When this case is remanded to the district court it will be returned to the California

Superior Court for re-sentencing. At resentencing the transcript will be before the state court

and, under the Three Strike Law, it will impose the same sentence enhancement that is at issue in

this appeal.

        The court should affirm the ruling of the district court. I respectfully DISSENT.
