                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 23 2014

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



                            FOR THE NINTH CIRCUIT


ADRIAN FERNANDO GURROLA,                         No. 12-57242

               Petitioner - Appellant,           D.C. No. 2:11-cv-06221-SJO

  v.
                                                 MEMORANDUM*
MIKE McDONALD,

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                             Submitted May 13, 2014**

Before:        CLIFTON, BEA, and WATFORD, Circuit Judges.

       California state prisoner Adrian Fernando Gurrola appeals pro se from the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253, and we remand.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Gurrola contends that the trial court violated his due process rights by

admitting an audiotape recording of a conversation that included allegedly

involuntary statements procured by coercion. The district court concluded that the

state court’s determination that the statements were not coerced was objectively

reasonable. In making this determination, the district court reviewed only a

transcript of the recording because the state had not lodged the audiotape, and

therefore the audiotape is not part of the record on appeal. See Kirshner v. Uniden

Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (“Papers not filed with the

district court or admitted into evidence by that court are not part of the clerk’s

record and cannot be part of the record on appeal.”).

      Without the actual recording, we cannot fully determine whether the state

court’s adjudication of Gurrola’s due process claim was contrary to, or an

unreasonable application of, clearly established law, or whether it was an

unreasonable determination of the facts based on the evidence presented.

Accordingly, we remand to the district court for the limited purpose of

reconsidering Gurrola’s due process claim after listening to the audiotape

recording.

      REMANDED for proceedings consistent with this disposition.




                                           2                                     12-57242
