
    Glynn Edward SCOTT, Petitioner— Appellant, v. George A. GRIGAS, Respondent— Appellee.
    No. 00-15392.
    D.C. No. CV-97-00213-ECR.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 14, 2002.
    Decided Nov. 19, 2002.
    Rehearing Denied Dec. 5, 2002.
    Before SCHROEDER, Chief Judge, D. W. NELSON and REINHARDT, Circuit Judges.
   MEMORANDUM

Glynn Scott appeals the district court’s denial of his petition for writ of habeas corpus. We reverse and remand for an evidentiary hearing.

The standard of review set forth in the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) is satisfied from the outset because the Nevada state courts’ determination of whether a serious conflict existed between Scott and Blaskey was based entirely on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). The Nevada courts concluded that no “irreconcilable conflict” existed between Scott and Blaskey because Scott was allegedly ready to withdraw his motion for substitution of counsel at the time the trial judge ruled on it. The district court correctly recognized that this interpretation of the facts was simply unreasonable because Scott had no intention of withdrawing his motion at that time.

With the state courts’ conclusion and AEDPA’s mandated deference thus placed properly aside, the principal issue before us is whether the conflict between Scott and Blaskey had become so great that it resulted in a constructive denial of Scott’s Sixth Amendment rights. Our analysis is controlled by our recent decision in Schell v. Witek, 218 F.3d 1017 (9th Cir.2000) (en banc). We explained in Schell that:

[T]he ultimate constitutional question the federal courts must answer ... is not whether the state trial court ‘abused its discretion’ in not deciding Schell’s motion, but whether this error actually violated Schell’s constitutional rights in that the conflict between Schell and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment.

Id. at 1026. We also noted that a habeas petitioner who satisfies his or her burden and shows a serious conflict that resulted in a constructive denial of counsel need not make any further showing of prejudice. Id.

Under Schell, Scott must establish that an actual conflict existed between him and Blaskey, and that this conflict was sufficiently disruptive to amount to a constructive denial of his constitutional rights under the Sixth Amendment. If the relationship between an attorney and client deteriorates so badly that it results either in a total lack of communication or a state of irreconcilable conflict, this may amount to a constructive denial of the defendant’s constitutional rights under the Sixth Amendment depending upon the seriousness of the conflict. See Schell, 218 F.8d at 1025.

After a careful review of the record in this case, however, we conclude that there are insufficient facts before us to weigh this issue properly. Scott’s allegations, if true, may entitle him to relief. No state court or federal district court has ever held an evidentiary hearing in order to determine (1) the nature and extent of the conflict between Scott and Blaskey and (2) whether that conflict deprived Scott of the representation to which he is entitled under the Sixth Amendment. See Schell, 218 F.3d at 1027. Accordingly, we remand this issue to the district court for an evidentiary hearing and further proceedings consistent with this order.

REVERSED and REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     
      
      The state court did hold a postconviction evidentiary hearing in this case. Despite Scott's diligent efforts, however, it limited him to exploring three ineffectiveness claims, none of which related, to whether there was a constructive denial of counsel and, if so, whether the constructive denial caused Scott to decide not to testify.
     