Adrian Fernando Gurrola v. MIKE McDONALD

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN FERNANDO GURROLA,
Petitioner - Appellant,
v.
MIKE McDONALD,
Respondent - Appellee.
No. 12-57242
D.C. No. 2:11-cv-06221-SJO
MEMORANDUM*
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.
FILED
MAY 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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.
12-57242 2

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