Smith v. Mitchell

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

DEBORAH L. PATRICK,* Warden,

OPINION

Respondent-Appellee.



On Remand from the

United States Supreme Court

Filed December 4, 2007

Before: Harry Pregerson and William C. Canby, Jr.,

Circuit Judges, and Edward C. Reed, Jr.,** District Judge.

Per Curiam Opinion

*Deborah L. Patrick is substituted for her predecessor, Gwendolyn

Mitchell, as Warden. Fed. R. App. P. 43(c)(2).

**The Honorable Edward C. Reed, Jr., Senior United States District

Judge for the District of Nevada, sitting by designation.

15895

SMITH v. PATRICK 15897

COUNSEL

Michael J. Brennan, Manhattan Beach, California, for the

petitioner-appellant.

Kristofer Jorstad, Deputy Attorney General, Los Angeles,

California, for the respondent-appellee.

15898 SMITH v. PATRICK

OPINION

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 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, 453 F.3d 1203 (9th Cir. 2006), and the State filed a

petition for certiorari in the Supreme Court. While that peti-

tion was pending, the Supreme Court decided Carey v. Mus-

ladin, 127 S. Ct. 649 (2006). It then granted certiorari in this

case, vacated our judgment, and remanded “for further con-

sideration in light of Carey v. Musladin . . . .” Patrick v.

Smith, 127 S.Ct. 2126 (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 accord-

ingly reinstate our judgment and opinion.

I

[1] 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

SMITH v. PATRICK 15899

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 (1976), and Hol-

brook v. Flynn, 475 U.S. 560 (1986). Musladin v. Lamarque,

427 F.3d 653, 656-58 (2005).

[2] 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. Mus-

ladin, 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

[3] 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 physi-

cal evidence. The prosecution witnesses themselves testified

that the deceased infant’s brain disclosed no evidence to sup-

port 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 dissec-

1

Section 2254 was amended to its present form by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132 (1996).

15900 SMITH v. PATRICK

tion 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 favor-

able to the prosecution could find guilt beyond a reasonable

doubt. See Jackson, 443 U.S. at 319. The evidence was so

lacking that we further concluded that affirmance of Smith’s

conviction was an unreasonable application of Jackson.

[4] 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 pre-

sented by a state is wholly insufficient to permit a constitu-

tional conviction. Jackson makes clear that such cases cannot

constitutionally stand if the evidence was insufficient “to con-

vince a trier of fact beyond a reasonable doubt of the exis-

tence of every element of the offense.” Jackson, 443 U.S. at

316. This standard is not as severe for defendants as that

applied in Thompson v. Louisville, 362 U.S. 199 (1960),

which held it to be a violation of due process to convict on no

evidence. Jackson makes clear that a conviction is unconstitu-

tional even if there is some evidence of guilt when all of the

evidence, viewed in the light most favorable to the prosecu-

tion, does not permit any rational fact-finder to find guilt

beyond a reasonable doubt. Jackson, 443 U.S. at 314-18.

Smith’s case accordingly falls squarely within Jackson. More-

over, 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

[5] It is true, of course, that the Supreme Court has never

had a case where the issue was whether the evidence, expert

SMITH v. PATRICK 15901

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 suffi-

ciency of the evidence as required by Jackson, however, sec-

tion 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 pro-

hibit 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 princi-

ple was announced.

Panetti v. Quartermain, 127 S. Ct. 2842, 2858 (2007) (inter-

nal quotation marks and citations omitted); see also Van Pat-

ten v. Endicott, 489 F.3d 827, 828 (7th Cir. 2007) (“Neither

§ 2254 nor Musladin limits relief to the precise factual situa-

tions addressed in the Supreme Court’s previous cases.”).2

Habeas relief is appropriate under the “unreasonable applica-

tion” prong of section 2254(d)(1) when a state court violates

2

The requirement is different under one scenario of the “contrary to”

prong of section 2254(d)(1). A state-court decision is “contrary to” a

Supreme Court decision when the state court “confronts a set of facts that

are materially indistinguishable from a decision of [the Supreme Court]

and nevertheless arrives at a result different from [the Supreme Court’s]

precedent.” Williams v. Taylor, 529 U.S. 362, 406 (2000). The facts need

not be materially indistinguishable, however, for a grant of habeas relief

under the “unreasonable application” prong of section 2254(d)(1). See id.

at 407-08.

15902 SMITH v. PATRICK

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 unrea-

sonable application of . . . clearly established Federal

law.”

Williams v. Taylor, 529 U.S. 362, 407-08 (2000) (brackets in

original); see also Abdul-Kabir v. Quarterman, 127 S. Ct.

1654, 1671 (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.

[6] We also reject the State’s contention that the Supreme

Court’s recent decision in Schriro v. Landrigan, 127 S. Ct.

1933 (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 (2003), and Strickland v. Washington, 466 U.S.

668 (1984), stating that “[n]either Wiggins nor Strickland

addresses a situation in which a client interferes with coun-

sel’s efforts to present mitigating evidence to a sentencing

court.” Landrigan, 127 S. Ct. at 1942.

[7] Here again, we fail to see a parallel between Landrigan

and Smith’s case. There was a structural difference between

SMITH v. PATRICK 15903

the ineffective assistance cases on which Landrigan relied and

his case, in which he had prevented counsel from presenting

mitigation evidence in court. The existing Supreme Court

standards of ineffective assistance required tailoring or modi-

fication to apply to this new situation. No such adaptation of

the Jackson standard is required in order to apply it to Smith’s

case, one of many that simply involves a failure of proof. For

the same reasons that we find Smith’s case to be unaffected

by Musladin, we conclude that it also is unaffected by Landri-

gan.

IV

Musladin also pointed out that, to be “determined by the

Supreme Court” within the meaning of section 2254(d), the

federal law in issue must be established by the holding, as

opposed to dicta, of the Supreme Court’s decision. Musladin,

127 S. Ct. at 653. “The Court’s ‘holding,’ ” however, neces-

sarily refers not only to the result reached, but also the ratio-

nale necessary to the reaching of that result. “When an

opinion issues for the Court, it is not only the result but also

those portions of the opinion necessary to that result by which

we are bound.” Seminole Tribe of Florida v. Florida, 517

U.S. 44, 67 (1996).

[8] Although in Jackson the Supreme Court ultimately

denied relief because the evidence had been sufficient, it

reached that result only after settling on the constitutional

standard to govern the decision of that question. That standard

was that the evidence was sufficient if “any trier of fact could

have found the essential elements of the crime beyond a rea-

sonable doubt.” Jackson, 443 U.S. at 319. That standard,

adopted after much discussion, see id. at 313-319, was the

sole means by which the result was reached. It was not dic-

tum, and to our knowledge has never been treated as dictum.

Indeed, the State does not claim it to be dictum in its briefing.

Similarly, in Musladin, the Supreme Court did not treat the

rules of Williams and Flynn as dicta, even though in both

15904 SMITH v. PATRICK

those cases habeas relief had been denied. We have no diffi-

culty, therefore, in concluding that the constitutional standard

announced in Jackson qualifies as holding, and not dictum,

for purposes of section 2254(d)(1).

V

[9] We conclude, therefore, that our earlier opinion and

decision, which held the state court’s affirmance of Smith’s

conviction to be an unreasonable application of Jackson, is

unaffected by Musladin. We therefore reinstate our earlier

judgment and opinion, as reported at 437 F.3d 884.

OPINION AND JUDGMENT REINSTATED.