Brown v. Farwell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TROY DON BROWN, 

Petitioner-Appellee, No. 07-15592

v. D.C. No.

CRAIG FARWELL, Warden, and THE  CV-03-00712-PMP/

ATTORNEY GENERAL OF THE VPC

STATE OF NEVADA, OPINION

Respondents-Appellants.



Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

August 16, 2007—San Francisco, California

Filed May 5, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,

and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw;

Dissent by Judge O’Scannlain

4871

4874 BROWN v. FARWELL

COUNSEL

Catherine Cortez Masto, Attorney General, Erik A. Levin,

Deputy Attorney General, Criminal Justice Division, Carson

City, Nevada, for the respondent-appellant.

Franny Forsman, Federal Public Defender, Paul G. Turner,

Assistant Federal Public Defender, Las Vegas, Nevada, for

the petitioner-appellee.

BROWN v. FARWELL 4875

OPINION

WARDLAW, Circuit Judge:

At Petitioner Troy Brown’s trial for sexual assault, the

Warden and State’s (“Respondents”) deoxyribonucleic acid

(“DNA”) expert provided critical testimony that was later

proved to be inaccurate and misleading. Respondents have

conceded at least twice that, absent this faulty DNA testi-

mony, there was not sufficient evidence to sustain Troy’s con-

viction.1 In light of these extraordinary circumstances, we

agree with District Judge Philip M. Pro’s conclusions that

Troy was denied due process, and we affirm the district

court’s grant of Troy’s petition for writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND2

A. The Crime

In the early morning of January 29, 1994, Jane Doe,3 a

nine-year-old girl, was sexually assaulted in the bedroom of

her trailer home in Carlin, Nevada. At the time, Jane was

home alone with her four-year-old sister while their mother,

Pam, was drinking at a bar and their step-father, Wayne

1

Respondents conceded this point at least twice in the state post-

conviction proceedings, both in their written papers and during oral argu-

ment. Though counsel for Respondents sought to distance himself from

this concession at oral argument before us, Respondents are judicially

estopped from disavowing their prior representations to the courts. See

Helfand v. Gerson, 105 F.3d 530, 534-36 (9th Cir. 1997); Russell v. Rolfs,

893 F.2d 1033, 1037-39 (9th Cir. 1990).

2

The Nevada Supreme Court ably set forth the facts underlying this

appeal. We repeat them here only as necessary. See Brown v. State, 934

P.2d 235, 237-40 (Nev. 1997); see also Sumner v. Mata, 449 U.S. 539,

547 (1981) (stating that federal courts on habeas must presume correct

state court finding of facts).

3

“Jane Doe” has been substituted for the victim’s real name to protect

her identity.

4876 BROWN v. FARWELL

Henle, was working the night shift. Troy was arrested, tried,

and convicted for this crime.

Earlier that night, Pam received a phone call from Raquel

Brown, who is married to Troy’s brother, Trent, inviting Pam

to join her and Trent for a drink at the local bar, CG’s, and

asking if Jane could babysit Raquel’s children while they

were at the bar. At 6:30 p.m., Pam took Jane and her sister to

Raquel’s house, which is located across the street; Pam and

Raquel left to meet Trent at CG’s. Raquel and Trent left CG’s

at 7:30 p.m., and Pam remained at the bar. Raquel and Trent

returned home and found Jane and her sister watching a

movie. When the movie concluded at 9:30 p.m., Raquel took

the children home. Jane, wanting to let Pam know they

arrived home safely, first called CG’s, where the line was

busy. Jane then called Peacock Bar, where Troy answered the

phone and stated that Pam was at CG’s but that he would

deliver the message. By the time Troy arrived at CG’s, Pam

was on the phone with Jane.

When the conversation ended, Pam accompanied Troy to

Peacock Bar where they had a drink. Troy was clearly drunk,

but “he behaved like a gentleman and made no sexual

advances toward” Pam. Pam stated that the last time she saw

Troy was between 11 p.m. and midnight. However, one bar-

tender stated that Troy left the bar no later than 12:20 a.m.,

and another bartender stated that she believed she saw Troy

at the bar at 1:30 a.m. Between midnight and 12:30 a.m.,4

Jane called Pam at the bar and explained that some man was

at the trailer looking for Pam and had hurt her. When Pam

arrived home, she found Jane covered in blood from the waist

down and called 911. A police officer and the paramedics

responded. Jane stated to the paramedic that she felt pain in

her vaginal area, and Pam responded that her ex-husband had

done this because he threatened to “f--- [Pam’s] daughter in

order to get back at [Pam].”

4

The bartender on duty indicated that the call came just before 1 a.m.

BROWN v. FARWELL 4877

Later at the hospital, vaginal and anal penetration were con-

firmed. Jane had bruises on her neck and scratches on her

face. A vaginal smear was taken because sperm was present.

Debris was collected from her teeth because she stated she

had bitten the assailant’s hands.

Jane described the assailant to the police that night as fol-

lows:

[H]e did not wear a hat and had blonde or sandy-

colored hair which was curly at the bottom and thin-

ning on top; she thought he had a small moustache;

he was wearing dark jeans, a black jacket with “a

zipper for sure,” a western type shirt, boots, and a

watch which scraped her face. . . . [She] stated that

the assailant smelled like cologne but that it was an

“awful smell” . . . [like] “beer or puke or some-

thing.”

That night, Troy was wearing a cowboy hat, dark jeans, a

black satin jacket with an orange and yellow CG’s logo on the

back, and boots. Two witnesses testified that, at 1:05 a.m. that

morning, they saw near Jane’s trailer a man wearing a cow-

boy hat, dark jeans, and a black satin jacket with a bright

green emblem on the back that looked like a skull or bandit.

Troy stated that he had been drinking steadily that night

and, while walking home to his trailer located ten trailers

away from Jane’s, had vomited several times, soiling his

pants and shirt. When he arrived home, Troy’s brother,

Travis, awoke from sleeping on the couch. Travis stated that

it was 1:32 a.m. when he awoke and that he did not see any

traces of blood in the house. Troy washed his clothes as soon

as he returned home because he was leaving that day to go to

Utah for a week and all of his clothes were already packed.

When a police officer arrived at 5 a.m. to question Troy, he

saw no blood on Troy or his boots; he also checked Troy’s

hands, which did not have any evidence of bite marks.

4878 BROWN v. FARWELL

Jane also stated that she fell asleep with a night light on,

but that the man who assaulted her must have turned it off

because it was off when the man left. Troy’s fingerprints were

not found anywhere in Jane’s trailer, and the one fingerprint

found on the night light did not match Troy’s.

When the police pressed Jane to tell them who the assailant

reminded her of, Jane stated “Troy,” and when the police

responded “Who?,” Jane stated “Trent. Yes, Trent.” Jane

explained that Trent was Raquel’s husband. Jane also stated

that the assailant’s hair looked like Troy’s but then changed

her mind and said it looked like Trent’s hair. A number of

days after the assault, Jane witnessed a television report of

Troy’s arrest and stated that “she knew that the man on televi-

sion was her assailant.” Jane also told the police officers that

the man she had seen on television had sent her flowers. The

card that came with the flowers was signed by Raquel and

Trent, not Troy. When the police showed Jane pictures that

included Troy’s picture and other people that she did not

know, Jane was unable to identify Troy as her attacker.

After Troy left for Utah, he contacted the Carlin police to

inquire whether he was wanted for arrest, but he was told that

he was not. Knowing that he was under suspicion, Troy

requested a full-body examination to be conducted by a nurse

in order to record his physical condition. On or about Febru-

ary 7, 1994, Troy voluntarily surrendered to the police and

was arrested. During the interrogation and throughout all pro-

ceedings, Troy has repeatedly denied involvement in the

crime.

B. State Court Proceedings

At trial, Respondents presented the testimony of DNA

expert Renee Romero of the Washoe County Sheriff’s Office

Crime Lab. Romero testified that, among other things, there

was a 99.99967 percent chance that Troy was the assailant.

BROWN v. FARWELL 4879

The jury found Troy guilty of two counts of sexual assault

on a child under the age of fourteen, in violation of Nevada

Revised Statutes 200.366, and one count of abuse or neglect

of a child resulting in substantial bodily harm, in violation of

Nevada Revised Statutes sections 200.508, 432B.020, and

432B.070. Troy appealed to the Nevada Supreme Court,

claiming, inter alia, the district court abused its discretion

when sentencing him, the bar against double jeopardy was

violated by the duplicative convictions for sexual assault and

abuse or neglect of a child, the DNA evidence was improperly

admitted, and the evidence was insufficient to sustain his con-

viction. The Nevada Supreme Court vacated the third charge

and remanded for resentencing on the second sexual assault

count. The trial court resentenced Troy to life with the possi-

bility of parole after ten years on both sexual assault counts,

to run consecutively. Troy again appealed to the Nevada

Supreme Court, which rejected his appeal. Troy next filed a

state petition for post-conviction relief, and, after holding an

evidentiary hearing, the state courts denied relief.

C. Federal Court Proceedings

On February 6, 2004, Troy filed his federal petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254, arguing, inter

alia, violations of due process and ineffective assistance of

counsel. Judge Pro permitted Troy to expand the record,

admitting, among other things, an uncontested report discred-

iting Romero’s testimony by Dr. Laurence Mueller (the

“Mueller Report”), a professor of Ecology and Evolutionary

Biology at the University of California, Irvine.

The district court granted Troy’s petition. First, the district

court concluded that, in light of the Mueller Report, Romero’s

testimony was unreliable. Absent that testimony, no rational

trier of fact could conclude beyond a reasonable doubt that

Troy was guilty of each and every element of the offenses

with which he was charged. The district court also concluded

that Troy’s attorney’s failure to diligently defend against

4880 BROWN v. FARWELL

Respondents’ DNA testimony, as well as his failure to investi-

gate the alibi of Henle, a potential suspect, amounted to inef-

fective assistance of counsel. Respondents timely appealed.

II. STANDARD OF REVIEW

Because Troy filed his petition after April 24, 1996, it is

governed by the Antiterrorism and Effective Death Penalty

Act, 28 U.S.C. § 2254(d). Section (d)(1) of that provision pro-

vides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judg-

ment of a State court shall not be granted with

respect to any claim that was adjudicated on the mer-

its in State court proceedings unless the adjudication

of the claim—

(1) 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.

A decision is “contrary to . . . clearly established” Supreme

Court precedent “if the state court applies a rule that contra-

dicts the governing law set forth in [the Supreme Court’s]

cases or if the state court confronts a set of facts that are mate-

rially indistinguishable from a decision of [the Supreme

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

Supreme Court’s] precedent.” Lockyer v. Andrade, 538 U.S.

63, 73 (2003) (internal quotation marks omitted). A decision

is an “unreasonable application of . . . clearly established”

Supreme Court precedent “if the state court identifies the cor-

rect governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Id. at 75 (internal quotation marks

omitted). Under the latter inquiry, “[t]he state court’s applica-

BROWN v. FARWELL 4881

tion of clearly established law must be objectively unreason-

able.” Id.

We review a district court’s decision to grant or deny a

habeas petition under 28 U.S.C. § 2254 de novo. Bean v. Cal-

deron, 163 F.3d 1073, 1077 (9th Cir. 1998).

III. DISCUSSION

Troy asserts that there was insufficient evidence to convict

him. His argument rests on the admission of Romero’s later

discredited testimony regarding the DNA evidence, which

was introduced without rebuttal at trial. Respondents have

conceded that absent introduction of Romero’s DNA evi-

dence, the remaining evidence is insufficient to sustain Troy’s

conviction. Having reviewed the record ourselves, we affirm

the district court’s conclusion that, had Romero’s inaccurate

and unreliable testimony on the DNA evidence been

excluded, there would have been insufficient evidence to con-

vict Troy on each essential element of the offenses beyond a

reasonable doubt. We further agree with the district court’s

conclusion that the Nevada Supreme Court’s decision was

both “contrary to” and an “unreasonable application of” estab-

lished United States Supreme Court precedent.

A. Exhaustion

[1] Respondents erroneously contend that Troy failed to

exhaust his insufficiency claim in the Nevada courts. Troy in

fact raised this claim on direct appeal, and the Nevada

Supreme Court concluded that the totality of the evidence—

considering both the DNA and non-DNA evidence together—

was sufficient to uphold the conviction. Brown v. State, 934

P.2d 235, 240-42 (Nev. 1997); see also O’Sullivan v. Boer-

ckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give

the state courts one full opportunity to resolve any constitu-

tional issues by invoking one complete round of the State’s

established appellate review process.”).

4882 BROWN v. FARWELL

B. Motion to Supplement the Record

Respondents argue that the district court erred by granting

Troy’s request to supplement the record with the Mueller

Report. Whether we apply the de novo or abuse of discretion

standard of review to a district court’s expansion of the record

in support of a claim of insufficient evidence is an open ques-

tion. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241

n.12 (9th Cir. 2005). However, applying either standard of

review, the district court’s decision to expand the record here

was legally proper.

[2] Under 28 U.S.C. § 2254(e)(2), a claimant who “failed

to develop the factual basis of a claim in State court proceed-

ings” will not be permitted to supplement the record in federal

court unless the claim relies on (1) “a new rule of constitu-

tional law,” made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable; or “a fac-

tual predicate that could not have been previously discovered

through the exercise of due diligence”; and (2) “the facts

underlying the claim would be sufficient to establish by clear

and convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of

the underlying offense.” Although none of these conditions is

met here, “[a]n exception to this general rule exists if a Peti-

tioner exercised diligence in his efforts to develop the factual

basis of his claims in state court proceedings.” Cooper-Smith,

397 F.3d at 1241.

[3] The district court correctly found that Troy “presented

a comprehensive discussion of the DNA evidence” before the

Nevada Supreme Court. This finding is supported by numer-

ous challenges to the DNA evidence raised in Troy’s state

court briefs. Troy’s attempts were “reasonable” and therefore

“diligent.” See Williams v. Taylor, 529 U.S. 420, 435 (2000)

(“Diligence for purposes of [§ 2254(e)(2)] depends upon

whether the prisoner made a reasonable attempt, in light of

the information available at the time, to investigate and pursue

BROWN v. FARWELL 4883

claims in state court.”). Moreover, as the district court found,

the Mueller Report merely clarifies, rather than fundamentally

alters, the DNA evidence and expert testimony that was

already before the Nevada courts. See Vazquez v. Hillery, 474

U.S. 254, 260 (1986) (“We hold merely that the supplemental

evidence presented by respondent did not fundamentally alter

the legal claim already considered by the state courts, and,

therefore, did not require that respondent be remitted to state

court for consideration of that evidence.”). Therefore, the dis-

trict court did not err by admitting the Mueller Report.

C. Merits

[4] We agree with the district court that the Nevada

Supreme Court’s decision was both “contrary to” and “an

unreasonable application of” Jackson v. Virginia, 443 U.S.

307 (1979). In Jackson, the Supreme Court held that a convic-

tion must be upheld if, “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Id. at 319. “[T]he standard must be

applied with explicit reference to the substantive elements of

the criminal offense as defined by state law.” Id. at 324 n.16;

see also Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004)

(en banc).

1. “Contrary to”

When addressing Troy’s insufficiency claim, the Nevada

Supreme Court stated that “[t]he standard of review for suffi-

ciency of the evidence upon appeal is whether the jury, acting

reasonably, could have been convinced of the defendant’s

guilt beyond a reasonable doubt.” Brown, 934 P.2d at 241

(citing Kazalyn v. State, 825 P.2d 578 (Nev. 1992)). It then

compiled—in one paragraph—the facts that supported its con-

clusion. Id. at 241-42.

[5] We agree with the district court that the Nevada

Supreme Court’s decision was “contrary to” Jackson, as the

4884 BROWN v. FARWELL

Nevada Supreme Court did not apply the Jackson standard.

Though the Nevada Supreme Court in previous cases had

applied the Jackson standard, see, e.g., Wilson v. State, 664

P.2d 328, 336 (Nev. 1983), here, the state court applied the

standard set forth in Kazalyn v. State. Brown, 934 P.2d at 241.

As the district court pointed out, “[t]he Kazalyn standard only

requires a reasonable jury—not a rational one.” Moreover,

under Kazalyn, a reviewing court assesses whether the jury

could have been “convinced of the defendant’s guilt”; the

Jackson standard is different, requiring the reviewing court to

assess “the essential elements of the crime.” The Nevada

Supreme Court failed to analyze each of the essential ele-

ments of the substantive state crime. Instead, it merely recited

all of the facts cumulatively without analyzing whether each

or any of those facts established an essential element of the

counts of conviction beyond a reasonable doubt, and that a

rational juror could have so found. See Chein, 373 F.3d at

983-93 (analyzing materiality and falsity of statements made

in three separate perjury counts to hold that no rational juror

could have found the defendant guilty of each element of per-

jury beyond a reasonable doubt). Therefore, the Nevada

Supreme Court’s decision was contrary to Jackson. In fact, as

demonstrated, infra, once the unreliable DNA testimony is

excluded, a proper application of the Jackson standard leads

to the conclusion that not all of the essential elements of the

crime were in fact proven beyond a reasonable doubt.

2. “Unreasonable application of”

[6] The district court also correctly concluded that the

Nevada Supreme Court’s decision was “an unreasonable

application of” Jackson because, in light of the Mueller

Report, no rational trier of fact could have found Troy guilty

beyond a reasonable doubt on the evidence presented at trial.

The validity and accuracy of the Mueller Report went unchal-

lenged by Respondents, and the district court found it to be

credible. We review this finding for clear error, and conclude

BROWN v. FARWELL 4885

the district court did not clearly err. See Buckley v. Terhune,

441 F.3d 688, 694 (9th Cir. 2006) (en banc).

The Mueller Report indicates that Romero’s testimony was

unreliable for two main reasons. First, Romero testified that

there was a 99.99967 percent chance that Troy’s DNA was

the same as the DNA discovered in Jane’s underwear—or, in

other words, that the science demonstrated a near 100 percent

chance of Troy’s guilt. This assertion was incorrect, as it falls

directly into what has become known as the “prosecutor’s fal-

lacy.” The prosecutor’s fallacy occurs when the prosecutor

elicits testimony that confuses source probability with random

match probability. Put another way, a prosecutor errs when he

“presents statistical evidence to suggest that the [DNA] evi-

dence indicates the likelihood of the defendant’s guilt rather

than the odds of the evidence having been found in a ran-

domly selected sample.” United States v. Shonubi, 895 F.

Supp. 460, 516 (E.D.N.Y. 1995) (internal quotation marks

and citation omitted), vacated on other grounds, 103 F.3d

1085 (2d Cir. 1997); see also United States v. Chischilly, 30

F.3d 1144, 1157 (9th Cir. 1994) (“To illustrate, suppose the

. . . evidence establishes that there is a one in 10,000 chance

of a random match. The jury might equate this likelihood with

source probability by believing that there is a one in 10,000

chance that the evidentiary sample did not come from the

defendant. This equation of random match probability with

source probability is known as the prosecutor’s fallacy.”);

Richard Lempert, Some Caveats Concerning DNA as Crimi-

nal Identification Evidence, 13 CARDOZO L. REV. 303, 305-06

(1991). Such a fallacy is dangerous, as the probability of find-

ing a random match can be much higher than the probability

of matching one individual, given the weight of the non-DNA

evidence. See William C. Thompson and Edward L. Schu-

mann, Interpretation of Statistical Evidence in Criminal Tri-

als, 11 L. AND HUM. BEHAV. 167, 170-71 (1987) (noting that

the prosecutor’s fallacy “could lead to serious error, particu-

larly where the other evidence in the case is weak and there-

fore the prior probability of guilt is low”).

4886 BROWN v. FARWELL

[7] Here, Romero initially testified that Troy’s DNA

matched the DNA found in Jane’s underwear, and that 1 in

3,000,000 people randomly selected from the population

would also match the DNA found in Jane’s underwear (ran-

dom match probability). After the prosecutor pressed her to

put this another way, Romero testified that there was a

99.99967 percent chance that the DNA found in Jane’s under-

wear was from Troy’s blood (source probability). This testi-

mony was misleading, as it improperly conflated random

match probability with source probability. In fact, the former

testimony (1 in 3,000,000) is the probability of a match

between an innocent person selected randomly from the popu-

lation; this is not the same as the probability that Troy’s DNA

was the same as the DNA found in Jane’s underwear, which

would prove his guilt. Statistically, the probability of guilt

given a DNA match is based on a complicated formula known

as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in

3,000,000 probability described by Romero is but one of the

factors in this formula. Significantly, another factor is the

strength of the non-DNA evidence. Here, Romero improperly

conflated random match and source probability, an error that

is especially profound given the weakness of the remaining

evidence against Troy. In sum, Romero’s testimony that Troy

was 99.99967 percent likely to be guilty was based on her sci-

entifically flawed DNA analysis, which means that Troy was

most probably convicted based on the jury’s consideration of

false, but highly persuasive, evidence.

[8] Second, Romero inaccurately minimized the likelihood

that Troy’s DNA would match one of his four brothers’ DNA,

thus underestimating the likelihood that one of Troy’s broth-

ers could have been the perpetrator. She testified that there

was a 25 percent chance of two brothers sharing both alleles

at one locus, and, using that figure, a 1/6500 chance that one

of Troy’s brothers would match Troy’s DNA at all five loci.5

5

As the district court pointed out, “The science of human DNA is highly

complex and difficult to understand, even for the well educated and patient

BROWN v. FARWELL 4887

The Mueller Report indicated that Romero’s calculation was

incorrect, as the correct figure is 1/1024. More importantly,

Romero’s testimony is misleading because it presented the

narrowest interpretation of the DNA evidence. Had Romero

accounted for Troy’s four brothers, two of whom lived in Car-

lin and two of whom lived in neighboring Utah, the chance

that Troy’s DNA would match at least one of his four broth-

ers’ DNA can increase to 1/66—almost one hundred times the

probability asserted by Romero. This omission was especially

egregious given that the victim, Jane, had twice identified

Troy’s brother, Trent, as the assailant. Again, Respondents

introduced nothing to contradict the findings of the Mueller

Report.

[9] A federal court on habeas may exclude evidence admit-

ted in the state court if the evidence “rendered [the] trial so

fundamentally unfair as to violate federal due process.”

Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985). We

agree with the district court that Romero’s testimony was

unreliable, as it was inaccurate and ignored logical implica-

student. It involves the matching of human genome materials or alleles

and a statistical calculation of how often that match might occur in a cho-

sen population.” We have previously described the science of DNA testing

as follows:

An allele is any alternative form of a gene that can occupy a

particular chromosomal locus. In humans and other diploid

organisms there are two alleles, one on each chromosome of a

homologous pair. Forensic DNA tests compare allele combina-

tions at loci where the alleles tend to be highly variable across

individuals and ethnic groups. If there is no match between the

alleles from the evidence DNA and the potential suspect’s DNA,

the suspect is generally ruled out as the source of the evidence,

unless the failure is attributable to inadequate test conditions or

contaminated samples. If there is a match, analysts use the fre-

quency of the alleles’ appearance in the relevant population to

calculate the probability that another person could have the same

pattern of allele pairs.

Chischilly, 30 F.3d at 1153 n.7 (internal quotation marks and citations

omitted).

4888 BROWN v. FARWELL

tions about Troy’s four brothers, each of whom lived in the

general vicinity. Admission of this unreliable testimony most

certainly rendered the trial fundamentally unfair, as even

Respondents concede that “[t]here was insufficient evidence

to convict the Defendant unless the DNA evidence established

his guilt.” Thus, the admission of Romero’s unreliable and

misleading testimony violated Troy’s due process rights, and

the district court did not err in excluding it. See United States

v. Scheffer, 523 U.S. 303, 309 (1998) (“State and Federal

Governments unquestionably have a legitimate interest in

ensuring that reliable evidence is presented to the trier of fact

in a criminal trial. Indeed, the exclusion of unreliable evi-

dence is a principal objective of many evidentiary rules.”).

After excluding Romero’s testimony, the district court

weighed the sufficiency of the remaining evidence in the light

most favorable to the prosecution, Jackson, 443 U.S. at 319,

and concluded that “there [is] sufficient conflicting testimony

to raise a reasonable doubt in the mind of any rational trier of

fact.” On appeal, Respondents argue that there is much evi-

dence to support the conviction. However, it is Respondents’

burden to establish guilt beyond a reasonable doubt for each

and every element of the offense, a burden that Respondents

have not carried here.

The district court thoroughly catalogued the numerous

inconsistencies that would raise a reasonable doubt as to

Troy’s guilt in the mind of any rational juror. Three witnesses

disagreed about the time at which Troy left CG’s to return

home. Notably, one witness testified that Troy remained at the

bar at 1:30 a.m., thirty to ninety minutes after the assault

occurred. Moreover, although Jane at times identified Troy as

her attacker, twice she identified Trent as the assailant. There

is also considerable conflict between Jane’s description of her

attacker and Troy’s clothing and appearance that night. For

example, Troy’s jacket was zipperless, but Jane testified that

her assailant’s jacket had “a zipper for sure.”

BROWN v. FARWELL 4889

The prosecution’s theory is also undermined by the testi-

mony of Troy’s brother and roommate, Travis, who testified

that he did not see blood on Troy’s boots or notice anything

unusual about Troy when he arrived home at 1:32 a.m. Fur-

thermore, early the next morning, when an officer examined

Troy, he found no evidence of marks on Troy’s hands or

blood on Troy’s clothing, which would have been consistent

with Troy being the attacker. That Troy laundered his cloth-

ing, though plausibly consistent with him being the assailant,

is also consistent with his testimony that he vomited on him-

self on the walk home, and that he wanted to clean his clothes

before his trip to Utah the following day.

The manner in which the forensic evidence at the scene was

collected and examined raises doubt as well. Troy’s finger-

prints did not match the fingerprint on the night light in Jane’s

room, which Jane testified her attacker turned off before wak-

ing her up. Moreover, neither Jane’s bedding nor the pubic

hairs discovered in a jacket in Jane’s bedroom were tested for

DNA samples.

At all times, Troy has denied involvement in the crime. He

also took actions inconsistent with having something to hide.

While in Utah, he called the Carlin police to inquire whether

he was wanted for arrest. Knowing that he was under suspi-

cion, he voluntarily submitted to a full-body examination to

record that he had no markings consistent with Jane’s descrip-

tion of the attack.

[10] The conflicts in the evidence are simply too stark for

any rational trier of fact to believe that Troy was the assailant

beyond a reasonable doubt, an essential element of any sexual

assault charge. This conclusion is confirmed by Respondents’

own concessions. Therefore, the Nevada Supreme Court’s

decision was “an unreasonable application of” Jackson.

IV. CONCLUSION

[11] Because we affirm the district court’s grant of Troy

Brown’s habeas petition on due process grounds, we need not

4890 BROWN v. FARWELL

reach his arguments regarding ineffective assistance of coun-

sel. The district court’s grant of Troy’s petition for writ of

habeas corpus and reversal of his conviction is AFFIRMED.

Respondents shall retry Troy within 180 days or shall release

him from custody.

AFFIRMED.

O’SCANNLAIN, Circuit Judge, dissenting:

Because I am persuaded that the Nevada Supreme Court

did not misapply federal law with respect to sufficiency of the

evidence review, I must respectfully dissent.

I

A habeas petitioner “is entitled to habeas corpus relief if it

is found that upon the record evidence adduced at the trial no

rational trier of fact could have found proof of guilt beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324

(emphasis added).1

After Winship the critical inquiry on review of the

sufficiency of the evidence to support a criminal

conviction must be not simply to determine whether

the jury was properly instructed, but to determine

whether the record evidence could reasonably sup-

port a finding of guilt beyond a reasonable doubt.

But this inquiry does not require a court to “ask itself

whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.”

1

The district court acknowledged this standard. See District Court Order

on Merits, pg. 5. (hereinafter “Order”) (“It is the evidence actually pre-

sented at trial, not evidence that should have or might have been pre-

sented, which is reviewed by the court.”).

BROWN v. FARWELL 4891

Id. at 318-19. In conducting the sufficiency of the evidence

inquiry, a reviewing court must “view[ ] the evidence in the

light most favorable to the prosecution.” Id. at 719.

AEDPA adds deference to such inquiry. In Sarausad v.

Porter, 479 F.3d 671, 677 (9th Cir. 2007), we wrote:

[28 U.S.C.] § 2254(d)(1) plainly applies to Jackson

cases. A state court must decide under Jackson

whether the evidence viewed in the light most favor-

able to the prosecution, would allow any rational

trier of fact to find the defendant guilty beyond a rea-

sonable doubt.

Id. Thus, AEDPA permits habeas relief only if “a state court

determination that the evidence was sufficient to support a

conviction was an “objectively unreasonable” application of

Jackson.” Id.

With respect, I am persuaded that the Nevada Supreme

Court complied with this standard. Although the state court

did not cite Jackson, it noted that “[t]he standard of review for

sufficiency of the evidence upon appeal is whether the jury,

acting reasonably, could have been convinced of the defen-

dant’s guilt beyond a reasonable doubt.” Brown, 934 P. 2d at

241. That standard mirrors the Jackson approach, and

AEDPA does not require express citation to federal law. See

Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). The

Nevada Supreme Court then reviewed the record and con-

cluded that “a jury, acting reasonably, could have been con-

vinced of Troy’s guilt beyond a reasonable doubt”:

Testimony indicated that Troy left the bar around

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.

4892 BROWN v. FARWELL

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, the Dokes testified that they saw some-

one resembling 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 indi-

cated that semen collected from Jane Doe’s under-

wear 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).

Brown, 934 P. 2d at 241-42.

In reviewing the Nevada Supreme Court’s decision, the dis-

trict court failed to view the evidence in the light most favor-

able to the prosecution. Unlike in Sarausad, the district court

parsed the conflicts in the trial testimony and found several

inconsistencies that it considered to be of “grave concern.”

Order, pg. 9. For example, the court cited to evidence first

added to the record on federal habeas, that the prosecution’s

DNA expert “incorrectly calculated” the DNA matching prob-

ability and misleadingly stated “the lowest probability possi-

ble among siblings.” Order, pg. 8. It also stated that “there

was conflicting testimony about the time that Petitioner actu-

ally left the bar and headed home” and “[t]here is also conflict

between the victim’s description of her assailant and Petition-

er’s apparel and appearance.” Order, pg. 9. But under Jack-

son, these disputed facts simply should have been viewed in

the light most favorable to the government.

BROWN v. FARWELL 4893

In contrast, the Nevada Supreme Court viewed the facts in

a manner that accorded with the Jackson standard. For exam-

ple, it stated that Jane Doe had called her mother around 1:00

a.m., although the evidence conflicted as to whether Jane Doe

placed the call at about midnight or around 1:00 a.m. Because

the latter testimony gave Troy more time to assault Jane Doe,

the Nevada Supreme Court correctly assumed that the jury

had accepted that version of the facts. Furthermore, the Court

did not mention conflicting points in the testimony, such as

statements that the emblem on Troy’s jacket was yellow and

orange and other statements that it was bright green. See

Sarausad, 479 F.3d at 683 (“We have considered the evidence

in the light most favorable to the prosecution. We have not

considered (or described here) the evidence that contradicted

or minimized the importance of the evidence favoring the

prosecution.”).

Again, with respect, I am not persuaded by the district

court’s view that the Nevada Supreme Court’s description of

the facts was a series of “factual determinations,” Order, pg.

9 (emphasis added); rather, it was not making factual findings

but simply reading the evidence in the light that most sup-

ported a finding of guilt.

But even more problematic than the district court’s focus

on the testimonial conflicts is its, and the majority’s, failure

to give any weight to the DNA evidence. See id. at 4886-88.

The district court stated: “[A]bsent the DNA testimony and

even after weighing the evidence in favor of the prosecution,

there are [sic] sufficient conflicting testimony to raise a rea-

sonable doubt in the mind of any rational trier of fact.” Id. at

9. Jackson does not permit a federal court to resolve a

sufficiency-of-the-evidence claim by imagining a different

state trial in which evidence actually presented would have

been excluded—especially not on the basis of reports added

to the record during federal habeas review.

4894 BROWN v. FARWELL

Even if one accepts Dr. Mueller’s estimate that “the chance

of a single sibling matching Troy Brown’s DNA profile is 1

in 263,”2 “the chance that among two brothers, one or more

would match is 1/132,” and the chance of “four brothers

[matching would be] 1 in 66,” no rational trier of fact would

have changed its mind. First, the DNA still would have sug-

gested that the rape was committed by Brown or one of his

brothers. And the likelihood that one of his brothers would

have such DNA was very slim: if not 1/6500, then at most

1/132. Thus, it was extremely unlikely that a random person

committed the crime, and of the brothers, it was extremely

unlikely that the specimen DNA would match not only Troy

—as it did—but another brother.3 These probabilities put

together still constitute overwhelming DNA evidence against

Troy which the jury was entitled to consider.

Moreover, there was considerable circumstantial evidence

to focus the jury’s attention on Troy and to remove any rea-

sonable doubt as to whether one of his brothers committed the

crime. As noted above, two of Troy’s brothers were not even

in the state at the time, and one of those was only 13. Another

brother (Travis) was present in the area but had an uncon-

tested alibi that he had been sleeping at or shortly after the

time of the crime. The fifth brother (Trent) was present at the

time and warranted greater suspicion because Jane Doe had

stated at one point that she thought he was her attacker.

The likelihood that the jury would have had a reasonable

doubt based on Trent’s being in the picture was negligible.

Trent already played a visible and non-incriminating role in

2

The numbers, as estimated by the district court and various experts,

differ. I cannot say which are right, but they all suggest that a proper cal-

culation would have taken into greater account the probability of sibling

allele identity.

3

Such reasoning does not commit the “prosecutor’s fallacy” because the

set of persons in my data pool is specified (whether it contains the three

brothers in the area or all five brothers).

BROWN v. FARWELL 4895

the events. He and his wife Raquel had met Pam at the bar

that night and had been at their house thereafter; no evidence

suggested that he went over to Jane Doe’s trailer. Moreover,

the jury had overwhelming grounds to conclude that between

the two brothers, the rapist was Troy. The attacker smelled

like vomit, and Troy had gotten drunk by having twenty

drinks over the course of the night and had vomited. In con-

trast, the evidence was that Trent had spent 30 minutes at the

bar and was home with his wife and children thereafter. Fur-

thermore, the Dokes saw someone staggering along the road

by Jane Doe’s trailer around the time of the crime, wearing

clothes they described as closely resembling those that Troy

was wearing the night of the crime. In contrast, no evidence

suggested that Trent was wearing similar clothes (and Brown

does not contend so now). The timing and the circumstantial

evidence all pointed toward Troy, not Trent.

The Nevada Supreme Court properly considered the evi-

dence, including the DNA evidence, as it was presented by

the prosecution at trial. The compelling force of the DNA evi-

dence, coupled with the strong circumstantial evidence and

inferences supported by the totality of the evidence, firmly

grounded the Nevada Supreme Court’s decision. See Sarau-

sad, 479 F.3d at 678 (“In performing a Jackson analysis,

‘[c]ircumstantial evidence and inferences drawn from [the

record] may be sufficient to sustain a conviction.’ ”)(citation

omitted).

II

In sum, in light of the standard of review prescribed by

AEDPA, I would reverse the district court’s order granting the

petition for habeas relief. Therefore, I must respectfully dis-

sent from the majority’s decision to affirm.