The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIRLEY REE SMITH, No. 04-55831
Petitioner-Appellant,
v. D.C. No.
CV-01-04484-ABC
GWENDOLYN MITCHELL,
OPINION
Respondent-Appellee.
On Remand from the Supreme Court of the United States
Filed October 29, 2010
Before: Harry Pregerson and William C. Canby, Jr.,
Circuit Judges, and Edward C. Reed, Jr.,
Senior District Judge.*
Per Curiam Opinion
*The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
17939
17942 SMITH v. MITCHELL
COUNSEL
Michael J. Brennan, Manhattan Beach, California, for the
petitioner-appellant.
Lawrence Daniels, Deputy Attorney General, Los Angeles,
California, for the respondent-appellee.
OPINION
PER CURIAM:
This case is before us on remand from the Supreme Court
for the second time. We reiterate the facts and course of litiga-
tion very briefly; a fuller exposition may be found in our ear-
lier opinions and orders that we cite here.
I
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
SMITH v. MITCHELL 17943
Court denied review. Smith then filed a federal habeas peti-
tion 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 (1979). Smith, 437 F.3d at
890.
The State’s petition for panel and en banc rehearing was
denied, Smith v. Mitchell, 453 F.3d 1203 (9th Cir. 2006), and
the State filed a petition for certiorari in the Supreme Court.
The Supreme Court granted certiorari, vacated our decision,
and remanded for further consideration in light of its interven-
ing decision in Carey v. Musladin, 127 S. Ct. 649 (2006). Pat-
rick v. Smith, 127 S.Ct. 2126 (2007).
On remand, we held that Carey v. Musladin did not cast
any doubt on our earlier conclusion that Smith’s case fell
squarely within Jackson, and that the state court’s denial of
her claim of constitutionally insufficient evidence was an
unreasonable application of Jackson. 508 F.3d 1256, 1261.
We also held that a later intervening Supreme Court decision
in Schriro v. Landrigan, 127 S. Ct. 1933 (2007), did not affect
our earlier result. Id. at 1260. We accordingly reinstated our
previous opinion and judgment that a writ of habeas corpus
must issue. Id. at 1261.
We subsequently denied the State’s petition for panel and
en banc rehearing, rejecting the State’s contention that the
Supreme Court’s recent decision in Wright v. Van Patten, 128
S. Ct. 743 (2008), required us to reverse course.
The State once again petitioned for certiorari. The Supreme
Court granted the writ, vacated our judgment, and remanded
17944 SMITH v. MITCHELL
for further consideration in light of McDaniel v. Brown, 130
S. Ct. 665 (2010) (“Brown”).
We have now examined Brown along with supplemental
briefs from the parties addressing its potential effect on
Smith’s case. We conclude that nothing in Brown is inconsis-
tent with our prior decision or our method of reaching it. We
accordingly reinstate our former decision, reported at 437
F.3d 884.
II
Brown involved a decision of this court that, like our deci-
sion in Smith, held that a state conviction failed to pass consti-
tutional muster under the standard of Jackson v. Virginia.
There the similarity of the two cases ends.
Brown’s conviction rested partly, but not entirely, on DNA
evidence. In presenting that evidence, the prosecution’s expert
introduced inaccuracies by testimony “equating random
match probability with source probability, and [by] an under-
estimate of the likelihood that one of [the defendant’s] broth-
ers would also match the DNA left at the [crime] scene.” 130
S. Ct. at 671. In applying the Jackson standard, this court took
into account an expert report (“the Mueller Report”) commis-
sioned by the defense for its collateral attack some 11 years
after the trial. By the time the case reached the Supreme
Court, Brown had conceded that this consideration of post-
trial evidence was improper because the Jackson standard
addresses whether any rational jury could convict on the evi-
dence presented at trial. The Supreme Court stated that the
concession was clearly correct. Id. at 672.
The Supreme Court went on, however, to rule that, even if
the Mueller Report could have been considered, it did not ren-
der the evidence insufficient because it did not dispute that the
DNA evidence matched the defendant. “That DNA evidence
remains powerful inculpatory evidence even though the State
SMITH v. MITCHELL 17945
concedes [its expert] overstated its probative value. . . . Even
under Mueller’s odds, a rational jury could consider the DNA
evidence to be powerful evidence of guilt.” Id. at 673.
The Supreme Court also faulted this court for treating
inconsistencies in factual testimony (such as the time the
defendant left a bar on the night of the crime, or the reason
that he washed his clothes when he later arrived home) in a
manner indicating that it had failed to review the evidence in
the light most favorable to the prosecution. See id. The
Supreme Court stated that this court “further erred in finding
that the Nevada Supreme Court’s resolution of the Jackson
claim was objectively unreasonable.” Id. at 674.
III
[1] Our decision in Smith did not share the deficiencies
that the Supreme Court pointed out in our opinion in Brown.
First, and perhaps most important, the record in Smith’s case
did not contain “powerful evidence of guilt,” Brown, 130 S.
Ct. at 673, that a rational jury could accept as proof of guilt
beyond a reasonable doubt. Smith was convicted on the the-
ory, presented by the prosecution experts, that she had shaken
her seven-week-old grandchild to death while the child’s
mother slept some twenty feet away. There was no dispute in
the evidence that Smith theretofore had been a caring grand-
mother for the three children commonly left in her care. No
one saw her shake the baby with the violence that the prose-
cution witnesses said must have caused the death. Indeed, the
emergency personnel and emergency room physicians
responding to the 911 call of Smith and her daughter consid-
ered the death to be an instance of Sudden Infant Death Syn-
drome, and that diagnosis changed only when the autopsy
revealed some blood, both old and new, in the victim’s brain.
We described the evidence in our decision:
All of the expert testimony offered by both sides
agreed that the amount of recent bleeding (approxi-
17946 SMITH v. MITCHELL
mately one or two tablespoons) was not sufficient to
have caused death, nor was the small abrasion suffi-
cient for that purpose. To the prosecution experts,
however, the presence of blood supported the diag-
nosis of Shaken Baby Syndrome. There was no dis-
pute, however, that the usual Shaken Baby
Syndrome death occurs from massive bleeding or
swelling of brain tissue that creates such crushing
pressure against the brain stem that vital processes
are interrupted and the baby dies. It was also agreed
that in 80% or more of the cases of Shaken Baby
Syndrome, there is bleeding in the retinas of the
eyes. There are also frequently fractures in the arms
or similar evidences of violence.
There was no swelling, and only a small, non-fatal
amount of bleeding, in Etzel’s case. Etzel had no ret-
inal bleeding, and no fractures or large bodily
bruises common in cases of shaking. The scalp abra-
sion was minimal, and was not even discovered until
well into the autopsy.
The prosecution experts testified, however, that
shaking caused the death even though the physical
examination of the brain during and after autopsy
could not demonstrate that fact. The experts testified
that the shaking must have been so violent and
severe that it directly tore or sheared parts of the
brain stem, causing immediate cessation of vital
activity such as breathing. This tear in the brain stem
would not have been apparent in autopsy, according
to the prosecution experts, because instantaneous
death would have prevented any bleeding or swell-
ing. No microscopic examination of the brainstem
was performed following the autopsy because, as Dr.
Erlich testified, “[W]e wouldn’t have seen anything
anyway.” The fatal tear or shearing would not have
been detectable. Dr. Ehrlich could not identify any
SMITH v. MITCHELL 17947
source in the literature for her hypothesis of undetec-
table brain stem shearing, but said she had learned it
from lectures and consultations.
437 F.3d at 887 (footnote omitted). Thus the theory that Smith
had shaken the baby so violently that the brain stem sheared
in a way that caused immediate death with no bruising or
bleeding could not be verified by examination of the brain.
Nothing in the physical evidence supported the prosecution
experts’ testimony as to the cause of death. We concluded that
this evidence was “simply not the stuff from which guilt
beyond a reasonable doubt can be established, especially in
the face of all the other circumstances, many of which were
recited by the magistrate judge, making the crime unlikely.”
Id. at 890.
[2] The state of the trial record in this case, therefore, is
entirely different in degree and kind from that in Brown. And
there is no question that, in Brown, the Supreme Court relied
heavily on the evidence of guilt that remained for the jury
even if the expert’s inaccuracies were combed out. Indeed, in
introducing its holding in Brown, the Court stated:
We granted certiorari to consider whether [the dis-
trict and appeals] courts misapplied Jackson.
Because the trial record includes both the DNA evi-
dence and other convincing evidence of guilt, we
conclude that they did.
130 S. Ct. at 667 (emphasis added). We are satisfied that no
comparable statement can be made about the state of the
record in Smith.
[3] Next, it almost goes without saying that our decision
was not subject to the error that was conceded by the defense
in Brown: consideration of evidence that was not before the
jury. Our decision in Smith that no rational jury could find
Smith guilty beyond a reasonable doubt was based entirely on
17948 SMITH v. MITCHELL
the evidence presented to the jury at trial. That aspect of
Brown is inapplicable here.
[4] Finally, we conclude that our decision in Smith did not
fail to accept the prosecution’s view of any evidence of histor-
ical fact, thus failing to accord deference to the state court’s
application of Jackson. See Brown, 130 S. Ct. at 673. In truth,
there was virtually no conflict in the evidence of the historical
facts in Smith. The testimony regarding Smith’s loving care
of her grandchildren was uncontroverted. The testimony
regarding events on the night of the victim’s death was also
not in conflict. There was not even any dispute over the con-
dition of the victim’s body immediately after death and later
during the autopsy. There was no dispute over the usual indi-
cations of Shaken Baby Syndrome, such as extensive bruising
or broken limbs, detached retinas, and massive bleeding and
swelling of the brainstem, all of which were absent in this
case. The only dispute rose from the prosecution’s expert tes-
timony that Smith must have shaken the baby so violently that
it sheared the brainstem in a way that was undetectible
because death was instantaneous. In sum, there was no verifi-
able evidence to support the prosecution experts’ testimony as
to the cause of death. In concluding that no rational jury could
find beyond a reasonable doubt, in light of all the evidence,
that Smith had shaken the baby to death, we did not resolve
any disputes of historical fact against the prosecution. We
simply assessed the prosecution’s evidence on its own terms
and concluded that it did not meet the Jackson standard, and
that it was so lacking that the state court’s rejection of Smith’s
argument over the insufficiency of the evidence was an unrea-
sonable application of Jackson to the facts of this case.1 We
do not find anything in Brown to cast doubt on these rulings.
1
We recognize that, to permit relief by habeas corpus, the state court’s
application of Jackson to the facts of this case must be “ ‘objectively
unreasonable.’ ” Brown, 130 S. Ct. at 673 (quoting Williams v. Taylor, 529
U.S. 362, 409 (2000). We are satisfied by the state of the evidence that this
requirement was met.
SMITH v. MITCHELL 17949
[5] As we indicated in our original opinion, we are acutely
aware of the double layer of deference required by the Jack-
son standard when it is combined with the standard of the
Antiterrorism and Effective Death Penalty Act, 28 U.S.C.
§ 2254(d). See Smith, 437 F.3d at 888-89; cf. Renico v. Lett,
130 S. Ct. 1855, 1862 & n.1 (2010). We acknowledged the
double layer of deference in holding that, even with it, the
California Court of Appeal had unreasonably applied Jackson
in finding the evidence constitutionally sufficient. See id. at
890. We did not lightly conclude that, “[i]n this most unusual
case,” id. at 889, the writ must be granted even after the requi-
site deference is accorded to the decisions of the jury and the
reviewing state court. Cases of constitutional insufficiency of
evidence where the writ must issue even after consideration
of the double level of deference will necessarily be rare, con-
fined to extraordinary cases. We are satisfied that this is such
an extraordinary case, and that “[a]s a result of the unreason-
able application of Jackson, there has very likely been a mis-
carriage of justice.” Smith, 437 F.3d at 890.
IV
[6] Pursuant to the Supreme Court’s mandate, we have fur-
ther considered our decision in light of the Supreme Court’s
decision in McDaniel v. Brown. For the reasons set forth
above, and in light of our prior opinions and orders cited in
Section I of this opinion, we conclude that Brown does not
cast doubt on the correctness of our decision, of which we
remain convinced. We accordingly reinstate our earlier judg-
ment and opinion, as reported at 437 F.3d 884.
OPINION AND JUDGMENT REINSTATED.