                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 12 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ESAUL CARDENAS,                                  No. 08-15945

             Petitioner - Appellant,             D.C. No. 3:04-CV-00720-PMP-
                                                 RAM
  v.

JACK PALMER, Warden; NEVADA                      MEMORANDUM *
ATTORNEY GENERAL,

             Respondents - Appellees,




                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                        Argued and Submitted May 11, 2011
                             San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and GERTNER, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
      Nevada prisoner Esaul Cardenas appeals the district court’s dismissal of his

28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253,

and we vacate and remand.

      This case has a complicated procedural history. In 2002, Cardenas pleaded

guilty in Nevada to two counts of lewdness with a child under the age of fourteen.

Cardenas filed several motions to withdraw his plea (both pro se and with the

assistance of counsel), claiming that he was innocent of the charges and that his

prior attorney misled him by telling him that he would receive probation. The trial

court denied the motions and sentenced Cardenas to concurrent life sentences with

the possibility of parole after ten years. The trial court appointed an attorney for

the direct appeal. Acting pro se, Cardenas made efforts in the Nevada Supreme

Court and the trial court, to represent himself on appeal or to gain new appellate

counsel.1 Eventually the Nevada Supreme Court indicated that Cardenas had direct

appeal counsel of record, and counsel belatedly filed a five-page appellate brief.

      While the direct appeal was pending, Cardenas filed a pro se petition for a

writ of habeas corpus (state post-conviction relief) in the Nevada trial court,

arguing among other things that his Sixth Amendment right to counsel was



      1
        The trial court granted one such motion to proceed pro se, but apparently
had no jurisdiction to do so because an appeal had been filed.

                                           2
violated, asserting that the trial court did not appoint counsel for his appeal.2 The

Warden responded, arguing that Cardenas was proceeding pro se on appeal and

could not complain about ineffective assistance of counsel. The state trial court

denied the habeas petition on this ground premised on apparent factual error. The

Nevada Supreme Court affirmed, but noted that, contrary to the Warden’s response

and the lower court’s findings, Cardenas was appointed appellate counsel, and

further that the habeas petition was denied without prejudice to the filing of

another post-conviction habeas petition at the conclusion of the direct appeal.

      Cardenas then filed a pro se petition for habeas corpus in federal district

court on three grounds, the second of which stated the following:

      The petitioner is in state custody in violation of his 1, 5, 6, 8, 14th
      amended [sic] rights to the constitution and his plea is unknowing,
      unintelligent and involuntary when The state court failed to assign or
      provide counsel for his direct appeal thus he was denied his 6th
      amendment right to counsel.

After Cardenas filed his federal petition, the Nevada Supreme Court issued an

opinion affirming his convictions on direct appeal, and “remittitur” issued on

February 24, 2005.




      2
       The record does not explain why Cardenas was asserting lack of counsel
while appointed counsel was prosecuting an appeal on his behalf.

                                           3
      The Warden filed an answer to the petition in federal court, stating that the

grounds raised in the petition were exhausted, but without merit. The Warden also

incorrectly asserted that “it appears Cardenas did not file a direct appeal,” though

the Warden submitted as exhibits the opening appellate brief and the Nevada

Supreme Court decision on direct appeal. Cardenas asked the district court to

dismiss his petition without prejudice so that he could exhaust state court remedies.

The district court construed the request as a motion for a stay and abeyance and

denied the request because it had not found that any of his claims were

unexhausted. Cardenas filed a “Traverse” explaining that he was “not asserting

that he was not represented by counsel on direct appeal, but that counsel’s

unwillingness to perfect an appeal denied him his right to appeal and the effective

assistance of counsel.”

      The district court denied the petition, stating that Cardenas did not file a

direct appeal to the Nevada Supreme Court and could not complain about a lack of

representation on appeal where he had elected to proceed pro se. This court issued

a certificate of appealability on the sole issue of whether appellate counsel was

ineffective. The briefs on appeal to us address the certified issue on the merits. On

the eve of oral argument, the Warden filed an emergency motion under Ninth

Circuit Rule 27-3 to vacate the certificate of appealability, urging that the


                                           4
certificate of appealability was improvidently granted because it certified an issue

that was not properly raised in Cardenas’s § 2254 petition. After oral argument,

we ordered supplemental briefing on whether Cardenas procedurally defaulted the

certified claim, whether the Warden had waived the affirmative defense of

procedural default, and whether we should raise procedural default sua sponte.

      We conclude that important aspects of the foregoing procedural history and

the district court record and decision frustrate meaningful appellate review of the

certified issue. Cardenas, representing himself, inartfully pleaded his ineffective

assistance of counsel claims, at first making it sound as if he didn’t have appointed

counsel, but in his “Traverse” challenging instead that counsel was unwilling to

“perfect” an appeal. We don’t know what Cardenas meant by this because his

lawyer had made an appeal, though perhaps not on issues Cardenas favored. The

Warden, apparently reading Cardenas’s pro se petition narrowly, did not assert any

procedural defenses in its answer. Perhaps in reliance on some mistaken assertions

made in the Warden’s pleadings, the district court overlooked that Cardenas’s

attorney on direct appeal had filed a direct appeal on Cardenas’s behalf and that the

Nevada Supreme Court issued a reasoned decision in the matter. Had it understood

these facts, the district court may not have narrowly interpreted and then

summarily rejected Cardenas’s ineffective assistance of counsel claim.


                                          5
      Given the ambiguities in Cardenas’s pro se pleadings, the misstatements in

the Warden’s filings, and the status of the record before it, we conclude that it

would have been a more appropriate course for the district court to have granted

Cardenas leave to amend and clarify his claims. See Jarvis v. Nelson, 440 F.2d 13,

14 (9th Cir. 1971) (per curiam) (“[A] petition for habeas corpus should not be

dismissed without leave to amend unless it appears that no tenable claim for relief

can be pleaded were such leave granted.”). We vacate and remand with

instructions to allow Cardenas to amend his petition.3 See Miranda v. Bennett, 322

F.3d 171, 175 (2d Cir. 2003) (noting that appellate courts may remand to the

district court for further proceedings when the record is insufficiently clear to

permit a determination on the basis of the decision and cautioning against the

adoption of a party’s position or proffers in making findings of fact); Fryer v.

MacDougall, 462 F.2d 1093, 1093 (5th Cir. 1972) (construing a pro se habeas

petition liberally and remanding to the district court with instructions to allow

leave to amend petition in the interests of justice).


      3
         This will permit the Warden to file an amended responsive pleading, and
the district court will then be in a position to examine, as it deems necessary,
matters including: (1) the exhaustion of state remedies and whether any state
remedies remain available, (2) procedural default, (3) the need for an evidentiary
hearing or further development of the record, (4) the proper standard of review,
and (5) the merits of Cardenas’s claim. We would then be in a position to review
any issues on appeal with the record thus clarified.

                                            6
      The Warden’s motion to vacate the certificate of appealability is denied.

Cardenas’s motion for judicial notice of state trial court hearing transcripts is

granted. Fed. R. Evid. 201(b); see Smith v. Duncan, 297 F.3d 809, 815 (9th Cir.

2001) (stating that this court may take judicial notice of relevant state court

documents), abrogated on other grounds by Pace v. DiGuglielmo, 544 U.S. 408

(2005) .

      VACATED and REMANDED.




                                           7
