Branch

MEMORANDUM *

Clifton Branch appeals the district court’s denial of his habeas corpus petition. Branch claims that the court erred by relying on the state court minute order, which stated that Branch had withdrawn his motion for substitution of counsel. We reverse the district court and remand to allow the court to order the appropriate relief under Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts.

Branch disputes that he withdrew his Marsden motion at the January 6th pretrial proceeding. In his habeas traverse to the district court, he stated that “[t]here is an error of the minute order and with sufficient transcripts before this court, this court would determine that Petitioner never ... withdrew any Marsden motion in open court or any other court.” Neither party, however, produced the transcript of the January 6th proceeding and the district court did not order its production. It was only after we ordered the Attorney General to produce the transcript that the Attorney General revealed that no transcript of the proceeding existed.

Under Rule 5 of the Rules Governing Section 2254 Cases, the answer to a habeas petition must indicate what…