Adrian Gurrola v. Mike McDonald

MEMORANDUM

California state prisoner Adrian Fernando Gurrola appeals pro se from the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We have jurisdiction under 28 U.S.C. § 2253 , and we remand.

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…