McDaniel v. Brown

Cite as: 558 U. S. ____ (2010) 1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–559

_________________

E. K. MCDANIEL, WARDEN, ET AL., PETITIONERS v.

TROY BROWN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[January 11, 2010]

PER CURIAM.

In Jackson v. Virginia, 443 U. S. 307 (1979), we held

that a state prisoner is entitled to habeas corpus relief if a

federal judge finds that “upon the record evidence adduced

at the trial no rational trier of fact could have found proof

of guilt beyond a reasonable doubt.” Id., at 324. A Nevada

jury convicted respondent of rape; the evidence presented

included DNA evidence matching respondent’s DNA pro

file. Nevertheless, relying upon a report prepared by a

DNA expert over 11 years after the trial, the Federal

District Court applied the Jackson standard and granted

the writ. A divided Court of Appeals affirmed. Brown v.

Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorari

to consider whether those courts misapplied Jackson.

Because the trial record includes both the DNA evidence

and other convincing evidence of guilt, we conclude that

they clearly did.

I

Around 1 a.m. on January 29, 1994, 9-year-old Jane Doe

was brutally raped in the bedroom of her trailer. Respon

dent Troy Brown was convicted of the crime. During and

2 MCDANIEL v. BROWN

Per Curiam

since his trial, respondent has steadfastly maintained his

innocence.1 He was, however, admittedly intoxicated

when the crime occurred, and after he awoke on the fol

lowing morning he told a friend “ ‘he wished that he could

remember what did go on or what went on.’ ” App. 309.

Troy and his brother Travis resided near Jane Doe in

the same trailer park. Their brother Trent and his wife

Raquel lived in the park as well, in a trailer across the

street from Jane Doe’s. Both Troy and Trent were ac

quainted with Jane Doe’s family; Troy had visited Jane

Doe’s trailer several times. Jane did not know Travis.

The evening of the attack, Jane’s mother, Pam, took Jane

to Raquel and Trent’s trailer to babysit while the three

adults went out for about an hour. Raquel and Trent

returned at about 7:30 p.m. and took Jane home at about

9:30 p.m. Pam stayed out and ended up drinking and

playing pool with Troy at a nearby bar called the Peacock

Lounge. Troy knew that Jane and her 4-year-old sister

were home alone because he answered the phone at

the bar when Jane called for her mother earlier that

evening.

Troy consumed at least 10 shots of vodka followed by

beer chasers, and was so drunk that he vomited on himself

while he was walking home after leaving the Peacock at

about 12:15 a.m. Jane called her mother to report the

rape at approximately 1 a.m. Although it would have

taken a sober man less than 15 minutes to walk home,

Troy did not arrive at his trailer until about 1:30 a.m. He

was wearing dark jeans, a cowboy hat, a black satin

jacket, and boots. Two witnesses saw a man dressed in

dark jeans, a cowboy hat, and a black satin jacket stum

——————

1 He

denied involvement when a police officer claimed (wrongly) that

the police had found his fingerprints in Jane’s bedroom, and he even

denied involvement when the sentencing judge told him that accep

tance of responsibility would garner him leniency.

Cite as: 558 U. S. ____ (2010) 3

Per Curiam

bling in the road between the two trailers shortly after

1 a.m.

The bedroom where the rape occurred was dark, and

Jane was unable to conclusively identify her assailant.

When asked whom he reminded her of, she mentioned

both Troy and his brother Trent. Several days after the

rape, she identified a man she saw on television (Troy) as

her assailant but then stated that the man who had sent

flowers attacked her. It was Trent and Raquel who had

sent her flowers, not Troy. She was unable to identify

Troy as her assailant out of a photo lineup, and she could

not identify her assailant at trial. The night of the rape,

however, she said her attacker was wearing dark jeans, a

black jacket with a zipper, boots, and a watch. She also

vividly remembered that the man “stunk real, real bad” of

“cologne, or some beer or puke or something.” Id., at 172–

173.

Some evidence besides Jane’s inconsistent identification

did not inculpate Troy. Jane testified that she thought she

had bitten her assailant, but Troy did not have any bite

marks on his hands when examined by a police officer

approximately four hours after the attack. Jane stated

that her assailant’s jacket had a zipper (Troy’s did not)

and that he wore a watch (Troy claimed he did not). Addi

tionally, there was conflicting testimony as to when Troy

left the Peacock and when Pam received Jane’s call report

ing the rape. The witnesses who saw a man stumbling

between the two trailers reported a bright green logo on

the back of the jacket, but Troy’s jacket had a yellow and

orange logo. Finally, because Jane thought she had left a

night light on when she went to bed, the police suspected

the assailant had turned off the light. The only usable

fingerprint taken from the light did not match Troy’s and

the police did not find Troy’s fingerprints in the trailer.

Other physical evidence, however, pointed to Troy. The

police recovered semen from Jane’s underwear and from

4 MCDANIEL v. BROWN

Per Curiam

the rape kit. The State’s expert, Renee Romero, tested the

former and determined that the DNA matched Troy’s and

that the probability another person from the general

population would share the same DNA (the “random

match probability”) was only 1 in 3,000,000. Troy’s coun

sel did not call his own DNA expert at trial, although he

consulted with an expert in advance who found no prob

lems with Romero’s test procedures. At some time before

sentencing, Troy’s family had additional DNA testing

done. That testing showed semen taken from the rape kit

matched Troy’s DNA, with a random match probability of

1 in 10,000.

The jury found Troy guilty of sexual assault and sen

tenced him to life with the possibility of parole after 10

years.2 On direct appeal, the Nevada Supreme Court

considered Troy’s claim that his conviction was not sup

ported by sufficient evidence, analyzing “whether the jury,

acting reasonably, could have been convinced of [Troy’s]

guilt beyond a reasonable doubt.” Brown v. Nevada, 113

Nev. 275, 285, 934 P. 2d 235, 241 (1997) (per curiam). The

court rejected the claim, summarizing the evidence of guilt

as follows:

“Testimony indicated that Troy left the bar around

——————

2 Under

Nevada law at the time of the trial, the jury, rather than the

judge, imposed the sentence for a sexual assault crime if it found the

assault resulted in substantial bodily harm. Nev. Rev. Stat. Ann.

§200.366(3) (Michie 1992). For an assault resulting in substantial

bodily harm, the jury had the option of sentencing Troy to life without

the possibility of parole or to life with eligibility for parole after 10

years. §200.366(2)(a). The jury elected the more lenient sentence. The

judge sentenced Troy to life with the possibility of parole after 10 years

on a second count of sexual assault, to run consecutively. The Nevada

Supreme Court reversed Troy’s conviction for one count of child abuse

on double jeopardy grounds, and ordered resentencing on the second

sexual assault count. Brown v. Nevada, 113 Nev. 275, 934 P. 2d 235

(1997) (per curiam). On resentencing, the judge imposed the same

sentence as before.

Cite as: 558 U. S. ____ (2010) 5

Per Curiam

12:15 a.m., that Troy lived relatively close to the bar,

and that Troy lived very close to Jane Doe. Troy had

enough time to get from the bar to Jane Doe’s house

and to assault Jane Doe before she made the tele

phone call to her mother at approximately 1:00 a.m.

While Jane Doe could not identify her assailant, her

description of his clothing was similar to what Troy

was wearing; she also said that her assailant smelled

like beer or vomit and testimony indicated that Troy

had been drinking beer and had vomited several times

that night. Furthermore, testimony indicated that

Troy got home at approximately 1:30 a.m., which gave

him enough time to assault Jane Doe. Additionally,

[witnesses] testified that they saw someone resem

bling Troy in a black jacket and black hat stumbling

in the road near Jane Doe’s house at 1:05 a.m. Troy

also washed his pants and shirt when he got home,

arguably to remove the blood evidence from his

clothes. Finally, the DNA evidence indicated that se

men collected from Jane Doe’s underwear matched

Troy’s and that only 1 in 3,000,000 other people had

matching DNA (the second DNA test indicated that 1

in 10,000 people had matching DNA).” Ibid., 934

P. 2d, at 241–242.

Respondent also argued on appeal that the trial court

erred in failing to conduct a pretrial hearing to determine

whether the DNA evidence was reliable. The court found

respondent had not raised this issue in the trial court and

concluded there was no plain error in the trial court’s

failure to conduct a hearing. Id., at 284, 934 P. 2d, at 241.

In 2001, respondent sought state postconviction relief,

claiming, inter alia, that his trial counsel was constitu

tionally ineffective for failing to object to the admission of

the DNA evidence. He argued that there were a number

of foundational problems with the DNA evidence, and that

6 MCDANIEL v. BROWN

Per Curiam

if trial counsel had objected, the evidence would have been

excluded or at least its importance diminished. He noted

that because trial counsel “totally failed to challenge the

DNA evidence in the case,” counsel “failed to preserve

valid issues for appeal.” App. 1101. The state postconvic

tion court denied relief, id., at 1489–1499, and the Nevada

Supreme Court affirmed, id., at 1500–1506.

Respondent thereafter filed this federal habeas petition,

claiming there was insufficient evidence to convict him on

the sexual assault charges and that the Nevada Supreme

Court’s rejection of his claim was both contrary to, and an

unreasonable application of, Jackson. He did not bring a

typical Jackson claim, however. Rather than argue that

the totality of the evidence admitted against him at trial

was constitutionally insufficient, he argued that some of

the evidence should be excluded from the Jackson analy

sis. In particular, he argued that Romero’s testimony

related to the DNA evidence was inaccurate and unreli

able in two primary respects: Romero mischaracterized

the random match probability and misstated the probabil

ity of a DNA match among his brothers. Absent that

testimony, he contended, there was insufficient evidence

to convict him.

In support of his claim regarding the accuracy of Ro

mero’s testimony, respondent submitted a report prepared

by Laurence Mueller, a professor in ecology and evolution

ary biology (Mueller Report). The District Court supple

mented the record with the Mueller Report, even though it

was not presented to any state court, because “the thesis

of the report was argued during post-conviction.” Brown

v. Farwell, No. 3:03–cv–00712–PMP–VPC, 2006 WL

6181129, *5, n. 2 (Nev., Dec. 14, 2006).

Relying upon the Mueller Report, the District Court set

aside the “unreliable DNA testimony” and held that with

out the DNA evidence “a reasonable doubt would exist in

the mind of any rational trier of fact.” Id., at *7. The

Cite as: 558 U. S. ____ (2010) 7

Per Curiam

court granted respondent habeas relief on his Jackson

claim.3

The Ninth Circuit affirmed. 525 F. 3d 787. The court

held the Nevada Supreme Court had unreasonably applied

Jackson. 525 F. 3d, at 798; see 28 U. S. C. §2254(d)(1).

The Court of Appeals first reasoned “the admission of

Romero’s unreliable and misleading testimony violated

Troy’s due process rights,” so the District Court was cor

rect to exclude it. 525 F. 3d, at 797. It then “weighed the

sufficiency of the remaining evidence,” including the Dis

trict Court’s “catalogu[e] [of] the numerous inconsistencies

that would raise a reasonable doubt as to Troy’s guilt in

the mind of any rational juror.” Ibid. In light of the

“stark” conflicts in the evidence and the State’s concession

that there was insufficient evidence absent the DNA

evidence, the court held it was objectively unreasonable

for the Nevada Supreme Court to reject respondent’s

insufficiency-of-the-evidence claim. Id., at 798.

We granted certiorari, 555 U. S. ___ (2009), to consider

two questions: the proper standard of review for a Jackson

claim on federal habeas, and whether such a claim may

rely upon evidence outside the trial record that goes to the

reliability of trial evidence.

II

Respondent’s claim has now crystallized into a claim

about the import of two specific inaccuracies in the testi

mony related to the DNA evidence, as indicated by the

Mueller Report. The Mueller Report does not challenge

——————

3 The District Court also granted habeas relief on respondent’s claim

that he was denied effective assistance of counsel with respect to his

attorney’s handling of the DNA evidence and failure to adequately

investigate the victim’s stepfather as an alternative suspect. Brown v.

Farwell, No. 3:03–cv–00712–PMP–VPC, 2006 WL 6181129, *9–*10

(Nev., Dec. 14, 2006). The Court of Appeals did not consider those

claims on appeal and they are not now before us.

8 MCDANIEL v. BROWN

Per Curiam

Romero’s qualifications as an expert or the validity of any

of the tests that she performed. Mueller instead contends

that Romero committed the so-called “prosecutor’s fallacy”

and that she underestimated the probability of a DNA

match between respondent and one of his brothers.

The prosecutor’s fallacy is the assumption that the

random match probability is the same as the probability

that the defendant was not the source of the DNA sample.

See Nat. Research Council, Comm. on DNA Forensic

Science, The Evaluation of Forensic DNA Evidence 133

(1996) (“Let P equal the probability of a match, given the

evidence genotype. The fallacy is to say that P is also the

probability that the DNA at the crime scene came from

someone other than the defendant”). In other words, if a

juror is told the probability a member of the general popu

lation would share the same DNA is 1 in 10,000 (random

match probability), and he takes that to mean there is

only a 1 in 10,000 chance that someone other than the

defendant is the source of the DNA found at the crime

scene (source probability), then he has succumbed to the

prosecutor’s fallacy. It is further error to equate source

probability with probability of guilt, unless there is no

explanation other than guilt for a person to be the source

of crime-scene DNA. This faulty reasoning may result in

an erroneous statement that, based on a random match

probability of 1 in 10,000, there is a .01% chance the de

fendant is innocent or a 99.99% chance the defendant is

guilty.

The Mueller Report does not dispute Romero’s opinion

that only 1 in 3,000,000 people would have the same DNA

profile as the rapist. Mueller correctly points out, how

ever, that some of Romero’s testimony—as well as the

prosecutor’s argument—suggested that the evidence also

established that there was only a .000033% chance that

respondent was innocent. The State concedes as much.

Brief for Petitioners 54. For example, the prosecutor

Cite as: 558 U. S. ____ (2010) 9

Per Curiam

argued at closing the jury could be “99.999967 percent

sure” in this case. App. 730. And when the prosecutor

asked Romero, in a classic example of erroneously equat

ing source probability with random match probability,

whether “it [would] be fair to say . . . that the chances that

the DNA found in the panties—the semen in the panties—

and the blood sample, the likelihood that it is not Troy

Brown would be .000033,” id., at 460, Romero ultimately

agreed that it was “not inaccurate” to state it that way,

id., at 461–462.

Looking at Romero’s testimony as a whole, though, she

also indicated that she was merely accepting the mathe

matical equivalence between 1 in 3,000,000 and the per

centage figure. At the end of the colloquy about percent

ages, she answered affirmatively the court’s question

whether the percentage was “the same math just ex

pressed differently.” Id., at 462. She pointed out that the

probability a brother would match was greater than the

random match probability, which also indicated to the jury

that the random match probability is not the same as the

likelihood that someone other than Troy was the source of

the DNA.

The Mueller Report identifies a second error in Romero’s

testimony: her estimate of the probability that one or more

of Troy’s brothers’ DNA would match. Romero testified

there was a 1 in 6,500 (or .02%) probability that one

brother would share the same DNA with another. Id., at

469, 472. When asked whether “that change[s] at all with

two brothers,” she answered no. Id., at 472. According to

Mueller, Romero’s analysis was misleading in two re

spects. First, she used an assumption regarding the par

ents under which siblings have the lowest chance of

matching that is biologically possible, but even under this

stingy assumption she reported the chance of two brothers

matching (1 in 6,500) as much lower than it is (1 in 1,024

under her assumption). Second, using the assumptions

10 MCDANIEL v. BROWN

Per Curiam

Mueller finds more appropriate, the probability of a single

sibling matching respondent is 1 in 263, the probability

that among two brothers one or more would match is 1 in

132, and among four brothers it is 1 in 66. Id., at 1583.

In sum, the two inaccuracies upon which this case turns

are testimony equating random match probability with

source probability, and an underestimate of the likelihood

that one of Troy’s brothers would also match the DNA left

at the scene.

III

Although we granted certiorari to review respondent’s

Jackson claim, the parties now agree that the Court of

Appeals’ resolution of his claim under Jackson was in

error. See Brief for Respondent 2–3; Reply Brief for Peti

tioners 1. Indeed, respondent argues the Court of Appeals

did not decide his case under Jackson at all, but instead

resolved the question whether admission of Romero’s

inaccurate testimony rendered his trial fundamentally

unfair and then applied Jackson to determine whether

that error was harmless.

Although both petitioners and respondent are now

aligned on the same side of the questions presented for our

review, the case is not moot because “the parties continue

to seek different relief” from this Court. Pacific Bell Tele

phone Co. v. linkLine Communications, Inc., 555 U. S. ___,

___ (2009) (slip op., at 6). Respondent primarily argues

that we affirm on his proposed alternative ground or

remand to the Ninth Circuit for analysis of his due process

claim under the standard for harmless error of Brecht v.

Abrahamson, 507 U. S. 619 (1993). The State, on the

other hand, asks us to reverse. Respondent and one

amicus have also suggested that we dismiss the case as

improvidently granted, Brief for National Association of

Criminal Defense Lawyers as Amicus Curiae 27–28, but

we think prudential concerns favor our review of the Court

Cite as: 558 U. S. ____ (2010) 11

Per Curiam

of Appeals’ application of Jackson. Cf. Pacific Bell, supra,

at ___ (slip op., at 7).

Respondent no longer argues it was proper for the Dis

trict Court to admit the Mueller Report for the purpose of

evaluating his Jackson claim, Brief for Respondent 35,

and concedes the “purpose of a Jackson analysis is to

determine whether the jury acted in a rational manner in

returning a guilty verdict based on the evidence before it,

not whether improper evidence violated due process,” id.,

at 2. There has been no suggestion that the evidence

adduced at trial was insufficient to convict unless some of

it was excluded. Respondent’s concession thus disposes of

his Jackson claim. The concession is also clearly correct.

An “appellate court’s reversal for insufficiency of the evi

dence is in effect a determination that the government’s

case against the defendant was so lacking that the trial

court should have entered a judgment of acquittal.” Lock

hart v. Nelson, 488 U. S. 33, 39 (1988). Because reversal

for insufficiency of the evidence is equivalent to a judg

ment of acquittal, such a reversal bars a retrial. See

Burks v. United States, 437 U. S. 1, 18 (1978). To “make

the analogy complete” between a reversal for insufficiency

of the evidence and the trial court’s granting a judgment of

acquittal, Lockhart, 488 U. S., at 42, “a reviewing court

must consider all of the evidence admitted by the trial

court,” regardless whether that evidence was admitted

erroneously, id., at 41.

Respondent therefore correctly concedes that a review

ing court must consider all of the evidence admitted at

trial when considering a Jackson claim. Even if we set

that concession aside, however, and assume that the Court

of Appeals could have considered the Mueller Report in

the context of a Jackson claim, the court made an egre

gious error in concluding the Nevada Supreme Court’s

rejection of respondent’s insufficiency-of-the-evidence

claim “involved an unreasonable application of . . . clearly

12 MCDANIEL v. BROWN

Per Curiam

established Federal law,” 28 U. S. C. §2254(d)(1).4

Even if the Court of Appeals could have considered it,

the Mueller Report provided no warrant for entirely ex

cluding the DNA evidence or Romero’s testimony from

that court’s consideration. The Report did not contest that

the DNA evidence matched Troy. That DNA evidence

remains powerful inculpatory evidence even though the

State concedes Romero overstated its probative value by

failing to dispel the prosecutor’s fallacy. And Mueller’s

claim that Romero used faulty assumptions and underes

timated the probability of a DNA match between brothers

indicates that two experts do not agree with one another,

not that Romero’s estimates were unreliable.5

Mueller’s opinion that “the chance that among four

brothers one or more would match is 1 in 66,” App. 1583,

is substantially different from Romero’s estimate of a 1 in

6,500 chance that one brother would match. But even if

Romero’s estimate is wrong, our confidence in the jury

verdict is not undermined. First, the estimate that is

more pertinent to this case is 1 in 132—the probability of a

——————

4 The Court of Appeals also clearly erred in concluding the Nevada

Supreme Court’s decision was “contrary to” Jackson. The Court of

Appeals held the Nevada Supreme Court’s decision was “contrary to”

Jackson because the Nevada court stated a standard that turns on a

“reasonable” jury, not a “rational” one, and that assesses whether the

jury could have been convinced of a defendant’s guilt, rather than

whether it could have been convinced of each element of the crime.

Brown v. Farwell, 525 F. 3d 787, 794–795 (CA9 2008). It is of little

moment that the Nevada Supreme Court analyzed whether a “reason

able” jury could be convinced of guilt beyond a reasonable doubt, rather

than asking whether a “rational” one could be convinced of each ele

ment of guilt; a reasonable jury could hardly be convinced of guilt

unless it found each element satisfied beyond a reasonable doubt.

5 The State has called our attention to cases in which courts have

criticized opinions rendered by Professor Mueller in the past. See Brief

for Petitioners 53–54. We need not pass on the relative credibility of

the two experts because even assuming that Mueller’s estimate is

correct, respondent’s claim fails.

Cite as: 558 U. S. ____ (2010) 13

Per Curiam

match among two brothers—because two of Troy’s four

brothers lived in Utah. Second, although Jane Doe men

tioned Trent as her assailant, and Travis lived in a nearby

trailer, the evidence indicates that both (unlike Troy) were

sober and went to bed early on the night of the crime.

Even under Mueller’s odds, a rational jury could consider

the DNA evidence to be powerful evidence of guilt.

Furthermore, the Court of Appeals’ discussion of the

non-DNA evidence departed from the deferential review

that Jackson and §2254(d)(1) demand. A federal habeas

court can only set aside a state-court decision as “an un

reasonable application of . . . clearly established Federal

law,” §2254(d)(1), if the state court’s application of that

law is “objectively unreasonable,” Williams v. Taylor, 529

U. S. 362, 409 (2000). And Jackson requires a reviewing

court to review the evidence “in the light most favorable to

the prosecution.” 443 U. S., at 319. Expressed more fully,

this means a reviewing court “faced with a record of his

torical facts that supports conflicting inferences must

presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolu

tion.” Id., at 326; see also Schlup v. Delo, 513 U. S. 298,

330 (1995) (“The Jackson standard . . . looks to whether

there is sufficient evidence which, if credited, could sup

port the conviction”). The Court of Appeals acknowledged

that it must review the evidence in the light most favor

able to the prosecution, but the court’s recitation of incon

sistencies in the testimony shows it failed to do that.

For example, the court highlights conflicting testimony

regarding when Troy left the Peacock. 525 F. 3d, at 797.

It is true that if a juror were to accept the testimony of one

bartender that Troy left the bar at 1:30 a.m., then Troy

would have left the bar after the attack occurred. Yet the

jury could have credited a different bartender’s testimony

that Troy left the Peacock at around 12:15 a.m. Resolving

14 MCDANIEL v. BROWN

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the conflict in favor of the prosecution, the jury must have

found that Troy left the bar in time to be the assailant. It

is undisputed that Troy washed his clothes immediately

upon returning home. The court notes this is “plausibly

consistent with him being the assailant” but also that he

provided an alternative reason for washing his clothes.

Ibid. Viewed in the light most favorable to the prosecu

tion, the evidence supports an inference that Troy washed

the clothes immediately to clean blood from them.

To be sure, the court’s Jackson analysis relied substan

tially upon a concession made by the State in state post

conviction proceedings that “absent the DNA findings,

there was insufficient evidence to convict [Troy] of the

crime.” App. 1180. But that concession posited a situation

in which there was no DNA evidence at all,6 not a situa

tion in which some pieces of testimony regarding the DNA

evidence were called into question. In sum, the Court of

Appeals’ analysis failed to preserve “the factfinder’s role as

weigher of the evidence” by reviewing “all of the evidence

. . . in the light most favorable to the prosecution,” Jack

son, supra, at 319, and it further erred in finding that the

Nevada Supreme Court’s resolution of the Jackson claim

was objectively unreasonable.

IV

Resolution of the Jackson claim does not end our consid

eration of this case because respondent asks us to affirm

on an alternative ground. He contends the two errors “in

describing the statistical meaning” of the DNA evidence

rendered his trial fundamentally unfair and denied him

——————

6 The concession was made in the context of proceedings in which

respondent argued that competent counsel would have objected to the

admissibility of the DNA evidence on a number of grounds—including

Romero’s qualifications, chain-of-custody problems, and failure to follow

the proper testing protocol—and might have successfully excluded the

DNA evidence altogether. See App. 1099–1100.

Cite as: 558 U. S. ____ (2010) 15

Per Curiam

due process of law. Brief for Respondent 4. Because the

Ninth Circuit held that “the admission of Romero’s unreli

able and misleading testimony violated [respondent’s] due

process rights,” 525 F. 3d, at 797, and in respondent’s view

merely applied Jackson (erroneously) to determine

whether that error was harmless, he asks us to affirm the

judgment below on the basis of what he calls his “DNA due

process” claim, Brief for Respondent 35.

As respondent acknowledges, in order to prevail on this

claim, he would have to show that the state court’s adjudi

cation of the claim was “contrary to, or involved an unrea

sonable application of, clearly established Federal law.”

28 U. S. C. §2254(d)(1). The clearly established law he

points us to is Manson v. Brathwaite, 432 U. S. 98, 114

(1977), in which we held that when the police have used a

suggestive eyewitness identification procedure, “reliability

is the linchpin in determining” whether an eyewitness

identification may be admissible, with reliability deter

mined according to factors set out in Neil v. Biggers, 409

U. S. 188 (1972). Respondent argues that the admission of

the inaccurate DNA testimony violated Brathwaite be

cause the testimony was “identification testimony,” 432

U. S., at 114, was “unnecessarily suggestive,” id., at 113,

and was unreliable.

Respondent has forfeited this claim, which he makes for

the very first time in his brief on the merits in this Court.

Respondent did not present his new “DNA due process”

claim in his federal habeas petition, but instead consis

tently argued that Romero’s testimony should be excluded

from the Jackson analysis simply because it was “unreli

able” and that the due process violation occurred because

the remaining evidence was insufficient to convict. See

App. to Pet. for Cert. 157a (“[Respondent] asserts . . . that

the DNA evidence was unreliable and should not have

been admitted at his trial. If so, then, . . . the state pre

sented insufficient evidence at trial to prove [respondent]

16 MCDANIEL v. BROWN

Per Curiam

guilty”). In the Ninth Circuit, too, respondent presented

only his Jackson claim,7 and it is, at the least, unclear

whether respondent presented his newly minted due

process claim in the state courts.8 Recognizing that his

Jackson claim cannot prevail, respondent tries to rewrite

his federal habeas petition. His attempt comes too late,

however, and he cannot now start over.

* * *

We have stated before that “DNA testing can provide

powerful new evidence unlike anything known before.”

District Attorney’s Office for Third Judicial Dist. v. Os

borne, 557 U. S. ___, ___ (2009) (slip op., at 8). Given the

persuasiveness of such evidence in the eyes of the jury, it

is important that it be presented in a fair and reliable

manner. The State acknowledges that Romero committed

the prosecutor’s fallacy, Brief for Petitioners 54, and the

Mueller Report suggests that Romero’s testimony may

have been inaccurate regarding the likelihood of a match

with one of respondent’s brothers. Regardless, ample

——————

7 The Court of Appeals did reason that Romero’s testimony must be

excluded from the Jackson analysis on due process grounds. 525 F. 3d,

at 797. But that decision was inextricably intertwined with the claim

respondent did make in his federal habeas petition under Jackson. It is

clear the Ninth Circuit was never asked to consider—and did not pass

upon—the question whether the Nevada Supreme Court entered a

decision on direct appeal that was contrary to or an unreasonable

application of Manson v. Brathwaite, 432 U. S. 98 (1977), or any other

clearly established law regarding due process other than Jackson.

8 The State contends the claim is either not exhausted or procedurally

defaulted. The State has objected from the beginning that respondent

did not raise a due process claim regarding the reliability of the DNA

evidence in state court. See App. to Pet. for Cert. 182a–183a. Respon

dent consistently answered the State’s exhaustion objection by arguing

he presented his Jackson claim in the Nevada Supreme Court. See

App. 1521–1526. The Ninth Circuit held respondent exhausted his

insufficiency claim. 525 F. 3d, at 793. The court had no occasion to

consider whether respondent exhausted any due process claim other

than his Jackson claim.

Cite as: 558 U. S. ____ (2010) 17

Per Curiam

DNA and non-DNA evidence in the record adduced at trial

supported the jury’s guilty verdict under Jackson, and we

reject respondent’s last minute attempt to recast his claim

under Brathwaite. The Court of Appeals did not consider,

however, the ineffective-assistance claims on which the

District Court also granted respondent habeas relief.

Accordingly, the judgment of the Court of Appeals is re

versed, and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

Cite as: 558 U. S. ____ (2010) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–559

_________________

E. K. MCDANIEL, WARDEN, ET AL., PETITIONERS v.

TROY BROWN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[January 11, 2010]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

concurring.

I join the per curiam because it correctly holds that the

Ninth Circuit erred in departing from Jackson’s mandate

that a federal habeas court confine its sufficiency-of-the

evidence analysis to “the evidence adduced at trial” and,

specifically, to “ ‘all of the evidence admitted by the trial

court.’ ” Ante, at 11 (quoting Lockhart v. Nelson, 488 U. S.

33, 41 (1988)); see Jackson v. Virginia, 443 U. S. 307

(1979). I write separately because I disagree with the

Court’s decision to complicate its analysis with an exten

sive discussion of the Mueller Report. See ante, at 7–13.

Defense counsel commissioned that report 11 years after

respondent’s trial. See ante, at 1. Accordingly, the re

port’s attacks on the State’s DNA testimony were not part

of the trial evidence and have no place in the Jackson

inquiry. See Jackson, supra, at 318; Lockhart, supra, at

40–42. That is all we need or should say about the report

in deciding this case.

The Court’s opinion demonstrates as much. The Court’s

lengthy discussion of the Mueller Report, see ante, at 7–

10, is merely a predicate to asserting that “even if” the

Court of Appeals could have considered the report in its

Jackson analysis, the report “provided no warrant for

entirely excluding the DNA evidence or Romero’s testi

2 MCDANIEL v. BROWN

THOMAS, J., concurring

mony from that court’s consideration” because the report

“did not contest that the DNA evidence matched Troy” or

otherwise show that the State’s DNA estimates were

“unreliable,” ante, at 12. Based on these observations, the

Court concludes that the Mueller Report did not under

mine the State’s DNA tests as “powerful inculpatory evi

dence.” Ibid. That is true, but even if the report had

completely undermined the DNA evidence—which the

Ninth Circuit may have mistakenly believed it did, see

Brown v. Farwell, 525 F. 3d 787, 795–796 (2008)—the

panel still would have erred in considering the report to

resolve respondent’s Jackson claim. The reason, as the

Court reaffirms, is that Jackson claims must be decided

solely on the evidence adduced at trial. See ante, at 11.

Accordingly, the Court need not correct any erroneous

impressions the Ninth Circuit may have had concerning

the report’s impact on the State’s DNA evidence to resolve

respondent’s Jackson claim.* Because that is the only

claim properly before us, I do not join the Court’s dicta

about how the Mueller Report’s findings could affect a

constitutional analysis to which we have long held such

post-trial evidence does not apply. See Jackson, supra, at

318.

——————

* Correcting the Ninth Circuit’s apparent misconception of the effects

of the Mueller Report is the only plausible reason for the Court’s

decision to explain that the report would not have undermined the

State’s DNA results “even if” the Court of Appeals could have consid

ered it in resolving respondent’s Jackson claim. Ante, at 11–12. That

discussion cannot properly be read to suggest either that there are

circumstances in which post-trial evidence would “warrant” excluding

DNA trial evidence from a Jackson analysis, ante, at 12, or that courts

applying Jackson may consider post-trial evidence for any other pur

pose. Both points are squarely foreclosed by the precedents on which

the Court relies in reversing the Ninth Circuit’s judgment. See ante, at

1 (citing Jackson, v. Virginia, 443 U. S. 307, 324 (1979)); ante, at 11

(citing Lockhart, v. Nelson, 488 U. S. 33, 39 (1988)), respectively.