Smith v. Patrick

508 F.3d 1256

Shirley Ree SMITH, Petitioner-Appellant, v. Deborah L. PATRICK,^* Warden, Respondent-Appellee.

No. 04-55831.

United States Court of Appeals, Ninth Circuit.

Filed December 4, 2007.

Michael J. Brennan, Manhattan Beach, CA, for the petitioner-appellant.

Kristofer Jorstad, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

On Remand from the United States Supreme Court. D.C. No. CV-01-04484-ABC.

Before: HARRY PREGERSON and WILLIAM C. CANBY, JR., Circuit Judges, and EDWARD C. REED, JR.,^** District Judge.

PER CURIAM:

Shirley Ree Smith was convicted in California state court of assault on a child resulting in death. The state court of appeal affirmed her conviction, and the California Supreme Court denied review. Smith then filed a federal habeas petition claiming that her conviction violated due process because the evidence was constitutionally insufficient. The district court denied the petition and Smith appealed. We reversed and directed issuance of the writ. Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006). We held that no rational trier of fact could have found beyond a reasonable doubt that Smith caused the child's death, and that the state court's affirmance of Smith's conviction was an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Smith, 437 F.3d at 890.

The State's petition for panel and en banc rehearing was denied, 453 F.3d 1203 (9th Cir.2006), and the State filed a petition for certiorari in the Supreme Court. While that petition was pending, the Supreme Court decided Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). It then granted certiorari in this case, vacated our judgment, and remanded "for further consideration in light of Carey v. Musladin ...." Patrick v. Smith, ___ U.S. ___, 127 S.Ct. 2126, 167 L.Ed.2d 861 (2007).

We ordered supplemental briefing by the parties, and have now reconsidered our decision as directed. We conclude that our earlier decision is unaffected by Musladin, and we accordingly reinstate our judgment and opinion.

I

The crucial issue in Musladin, as here on remand, is whether a state court's affirmance of a conviction "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).¹ In Musladin, the defendant was convicted of murder in a trial during which members of the victim's family sat in the front row of the spectators' gallery wearing buttons displaying a photograph of the victim. On federal habeas review, this court ordered the writ to issue, holding that the state court had applied a test of inherent prejudice that was contrary to or an unreasonable application of Supreme Court precedent, Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). Musladin v. Lamarque, 427 F.3d 653, 656-58 (2005).

The Supreme Court vacated, holding that the precedent on which the petitioner relied had been confined to government-sponsored conduct. The Supreme Court had never addressed a claim that private-actor courtroom conduct (short of mob domination of a trial) was inherently prejudicial to a fair trial. The effect of spectator conduct therefore was "an open question" in Supreme Court jurisprudence. Musladin, 127 S.Ct. at 653. Accordingly, the state court decision had not been contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. Id. at 654.

II

We find no comparable problem in this case. We held that the opinion of the prosecution experts that shaking of the infant had caused death was wholly unsupported by the physical evidence. The prosecution witnesses themselves testified that the deceased infant's brain disclosed no evidence to support their view that violent shaking had sheared the brain stem in a manner that caused instantaneous death. The physician who performed the autopsy also testified that further dissection of the brain would have disclosed no such evidence. There was no dispute that the small amount of bleeding, and the small abrasion on the scalp, could not have caused death. There was, accordingly, a failure of evidence to support the opinion of the expert witnesses that shaking had caused the death. On the whole record, we concluded that the evidence did not meet the standard of Jackson v. Virginia: no rational juror considering all of the evidence in the light most favorable to the prosecution could find guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The evidence was so lacking that we further concluded that affirmance of Smith's conviction was an unreasonable application of Jackson.

Nothing in the State's failure of evidence takes this case out of the class of cases subject to the test of Jackson. Unlike Musladin, where the private-actor conduct at issue had never been the subject of Supreme Court consideration, this case presents merely one more instance where the evidence presented by a state is wholly insufficient to permit a constitutional conviction. Jackson makes clear that such cases cannot constitutionally stand if the evidence was insufficient "to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson, 443 U.S. at 316, 99 S.Ct. 2781. This standard is not as severe for defendants as that applied in Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), which held it to be a violation of due process to convict on no evidence. Jackson makes clear that a conviction is unconstitutional even if there is some evidence of guilt when all of the evidence, viewed in the light most favorable to the prosecution, does not permit any rational fact-finder to find guilt beyond a reasonable doubt. Jackson, 443 U.S. at 314-18, 99 S.Ct. 2781. Smith's case accordingly falls squarely within Jackson. Moreover, the prosecution's evidence falls so far short that it was unreasonable for the state appellate court to conclude that it met the Jackson standard.

III

It is true, of course, that the Supreme Court has never had a case where the issue was whether the evidence, expert and otherwise, was constitutionally sufficient to establish beyond a reasonable doubt that a defendant had shaken an infant to death. But there are an infinite number of potential factual scenarios in which the evidence may be insufficient to meet constitutional standards. Each scenario theoretically could be construed artfully to constitute a class of one. If there is to be any federal habeas review of constitutional sufficiency of the evidence as required by Jackson, however, section 2254(d)(1) cannot be interpreted to require a Supreme Court decision to be factually identical to the case in issue before habeas can be granted on the ground of unreasonable application of Supreme Court precedent. The Supreme Court does not interpret AEDPA in such a constrained manner.

AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced.

Panetti v. Quarterman, ___ U.S. ___, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007) (internal quotation marks and citations omitted); see also Van Patten v. Endicott, 489 F.3d 827, 828 (7th Cir.2007) ("Neither § 2254 nor Musladin limits relief to the precise factual situations addressed in the Supreme Court's previous cases.").² Habeas relief is appropriate under the "unreasonable application" prong of section 2254(d)(1) when a state court violates the principle of clearly-established federal law that has been determined by the Supreme Court:

A state-court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case certainly would qualify as a decision "involv[ing] an unreasonable application of ... clearly established Federal law."

Williams v. Taylor, 529 U.S. 362, 407-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (brackets in original); see also Abdul-Kabir v. Quarterman, ___ U.S. ___, 127 S.Ct. 1654, 1671, 167 L.Ed.2d 585 (2007) (holding that "ignoring the fundamental principles established by our most relevant precedents" is a factor leading to a result "contrary to" and "an unreasonable application of" Supreme Court precedent). We conclude, therefore, that Smith's case easily falls within the principle established by Jackson, and that the affirmance of Smith's conviction was an unreasonable application of Jackson.

We also reject the State's contention that the Supreme Court's recent decision in Schriro v. Landrigan, ___ U.S. ___, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), requires a more exact congruence between the facts of Smith's case and those of Jackson. In Landrigan, the Supreme Court held that none of its precedents precluded a state court from denying a claim of ineffective assistance of counsel asserted by a defendant who told the court that he had instructed his attorney not to present mitigation evidence. Id. at 1942. The Supreme Court rejected this court's ruling that the state court had unreasonably applied Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), stating that "[n]either Wiggins nor Strickland addresses a situation in which a client interferes with counsel's efforts to present mitigating evidence to a sentencing court." Landrigan, 127 S.Ct. at 1942.

Here again, we fail to see a parallel between Landrigan and Smith's case. There was a structural difference between the ineffective assistance cases on which...