# Petition for Writ of Certiorari — O'Brien v. O'Laughlin (No. 09-484) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1150%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text Supreme Court, U.S. P FILED ’ 09-484 OCT 21 2009 S6FICE OF THE CLERK Hn the Supreme Court of the Gnited States STEVEN O’BRIEN, Superintendent, Old Colony Correctional Center; Petitioner. VU. MICHAEL O’ LAUGHLIN, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT PETITION FOR AWRIT OF CERTIORARI MARTHA COAKLEY Massachusetts Attorney General JESSICA V. BARNETT* JAMES J. ARGUIN Assistant Attorneys General One Ashburton Place Boston, MA 02108-1598 (617) 727-2200 *Counsel of Record QUESTION PRESENTED This petition presents the same question for review as the petition for certiorari in Metrish v. Newman, No. 08-1401, 2009 WL 1370163 (U.S. May 12, 2009), namely, whether a federal habeas court in reviewing the reasonableness of a state court’s application of the sufficiency-of-the-evidence standard established in Jackson v. Virginia, 443 U.S. 307 (1979), may rely on a “reasonable speculation” standard to set aside the state court’s evaluation oof the circumstantial evidence supporting the jury’s verdict. oe TABLE OF CONTENTS MRP Meee OE RGPEN BRCROEGIN 1 IGD)................cccsccoscsevccesecsees 1 8 yg 00. 9 ie Lr lV NEE MEER E WY 0055000.50000essesessenssccesscnsecsscssesoeces l scsi sssdsessasesnveses ssseseencoessores ] RED BOD V SE OING ......0.sccrcccecssoscscescooees | Nee liicccasecassossyessesenssessseseneesseees 2 ae meeaeies OF Trill CASE ...........0......scccccseeeess 3 REASONS FOR GRANTING THE PETITION .. 10 A. This Court Should Grant Certiorari to Prevent Federal Habeas Retrials of State Criminal Cases in violation of AEDPA. ....... 13 B. This Court Should Grant Certiorari Because the “Reasonable Speculation” Standard Finds No Basis in this Court’s Cases and Threatens to Erode Jackson v. Virginia....... 16 1. The “reasonable speculation” standard is not clearly-established law under SOPH Oe ee EEE EEE HEE EEEHEHEHEEEEH OEE EHH EEE HHH OEE ad The term “reasonable speculation” is inherently contradictory and permits appellate courts to usurp the jury’s role IN oo. cunccvacceccescncsccscsvecsesecsese 17 3. The “reasonable speculation” standard devalues circumstantial evidence, unduly disadvantaging the prosecution in domestic and acquaintance violence DOIG icassiccseenssiccescrecneetes eceateeeee 20 C. This Court Should Grant Certiorari Because the Instant Case is a Good Vehicle for Clarifying Jackson’s Application to Circumstantial Cases and for Re-Affirming APPENDIX A: First Circuit Opinion, dated June Pl I bvnsisdasctictsn into ee la APPENDIX B: District Court Order of Dismissal, dated December 12, 2007.......... 52a APPENDIX C: Massachusetts Supreme Judicial Court Opinion, dated March 10, 2006........ 53a APPENDIX D: First Circuit Order Denying Panel Rehearing and Rehearing en Banc... 90a APPENDIX E: Statutory Provisions .............. 1l3a 1V TABLE OF AUTHORITIES Cases Anderson v. Fuller, MN AF a IE ID incase vnedsvnxanconsecbsccaceresdseneve 19 Bell v. Cone, 535 U.S. GBS C00Z)...........0cccccccccesesee 10, 13, 15, 16 Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008), cert. granted sub nom, McDaniel v. Brown, 129 S. Ct. 1038 (2009)................02.... 12, 30 Brown v. Palmer, Be Fe ee Cn Gh, BOD hosts nvcnccscchecccnsevassess 21 Brown v. Payton, SOME Fe MD oo ide sacxcaveccecedetchacdedsoucacads 15, 23 Carey v. Musladin, ee coc aca veesanccvddunconsvconccdcevasaves 17 Commonwealth v. O'Laughlin, 63 Mass. App. Ct. 805, 830 N.E.2d 222 (2005).... 8 Commonwealth v. O’Laughlin, 446 Mass. 188, 843 N.E.2d 617 (2006)........ passim Desert Palace, Inc. v. Costa, ee er oon spi vakecucnveucaccesancrsoeion 20, 28 Duckworth v. Fagan, — BOSE | Duncan v. Walker, EE A UE RI Bie pnciccsssccnccosewncnsaves Early v. Packer, LE | ne Engle v. Isaac, 456 U.S. 107 (1982)....... cuinseent aaiagetiia Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981), cert. denied sub nom, Anderson v. Fuller, 455 U.S. 1028 (1982) ............. Herrera v. Collins, BOG UTS. BI CIOS) ov cccrcccecccosesvaceesscess Holland v. United States, Be ae, BE CR iiss ccsssconssenersscsones Jackson v. Virginia, Ee RE. EE GE ce niriskcccnnhconesszactoes Knowles v. Mirzayanee, ERD SS. CE. FEE CD occ ncn sssccevevecocess Lockyer v. Andrade, Pee ees Ne I ois vk vevcscsvecsreerscvecawans McDaneel v. Brown, 129 S. Ce. FOSS COGS)... ssc cecssceecesee een re 30 20, 25, 28 Eis passim Miller-El v. Cockrell, Be re CE IE os ocaccedcasdvcccunccessacvscccdosecsveacs 13 Miranda v. Arizona, sn. ss cconpnanevasenaeceeees 14, 22 Mitchell v. Esparza, 540 U.S. 12 (2003) Newman v. Metrish, 543 F.3d 793 (6th Cir. 2008)... 2, 11, 16, 17, 21, 30 O’Brien v. O’Laughlin, No. 09A194, 2009 WL 2831420 (U.S. August 26, 2009) (Breyer, J., 1M) CRAMDETLS) ...........0...ccccsccccsccccscees 10n O’Laughlin v. O’Brien, ee ee OE CEG CAT, BOD) onccccesscsecseessccass passim O’Laughlin v. O’Brien, 577 F.Sa i (ist Cir. 2009) ............. 1, 10, 18, 19, 20 Parke v. kaley, so cy sa vngideuu de vuduenandoueesuens 11 Parker v. Rentco, Soe We cee Oe CEE GAP, DIED vcescccscccceccsssensseseeseass 21 Schlup v. Delo, 513 U.S. 298 (1996)................ ipistumadotesuatere 18, 28n Schriro v. Landrigan, Be Sy MUU SION E Dano sconscvdvcccvvcdscctccsonacccecast 10, 14 vll Smith v. Romanowski, No. 07-1578, 2009 WL 1884451 CE Be I vice ca nov cnacvinsvcssesensesveccsecensens 21 Strickland v. Washington, ee I I oor ox nese cnesinssssensecersconsccesyens 14,15 Tucker v. Palmer, 641 F.3d 652 (6th Cir. 2006)..........ccccescoccssscevenees 21 Uttecht v. Brown, Ee FP noo coscecccecsscactecncccocccenseovens 14 Wainwright v. Witt, 469 U.S. 412 (1985)......... adi cin ca kpbangussica cacao aes 14 Williams v. Taylor, 529 U.S. 362 (2000)............00.. 2, 10, 11, 13, 14, 19 Witherspoon v. fllinois, ne es ns css sunenaiannsukancmamaiiiae 14 Woodford v. Garceau, Re Ue. Be CS cnc csceccscseseses apaIa anaes 10, 13 Woodford v. Visciotti, ee eI 5. csc seve usvsabachentsacressvanaciens 14, 15 Wright v. West, ee es seks gin bnaaewkieandiinses 18, 30 Yarborough v. Alvarado, OE EF. SOF CGD ons vivcsicccccseccess 14, 18, 22, 23, 29 Vill Statutory Provisions ee Sie I wr sistas viscseiaeesevdesn ene 1 Fe re ie IE axicacedaksvinissasereematannens covnisekeduaneadaas 1,8 Oe Rs as te i iadkseh canicceontsenmieaeeean 1, 2n, 15 26 U.S.C. S SABGGIMD) 2. ccavsvsccccess 1,11, 13, 14, 15, 17 DE U2 & Se iivckdscssstcctencctauees 1, 3n, 11 Mass. Gen. Laws ch. 265, § 15A(b)............0...000.-0..0. 8 Mass. Gen. Laws ch. 265, § 18A ...... 2c cece ec ec ecco ees 8 Mass. Gen. Laws ch. 265, § 18(b)...................... ecco eee 8 Mans. Gen. LOWS Gh. TOG, © 36 vcsicdvsevssccticcinaae 8 Rules Be, SE, hn i oan oven de nviecsencadeneccaasveacse eee ee 15 OG. Fe. PA. Fc Be oisncnvecinervccssszsvrs saisinteeetan nia 5 Fed. . AO. F. GIG visissessasmaniose eee 10 Other Nancy J. King, et al., Final Technical Report: Habeas Litigation in U.S. District Courts, Vanderbilt University Law School and National Center for State Courts (2007), available at www.law.vanderbilt.edu......................... Ft OOO 12 Petition for Certiorari, Metrish v. Newman, No. 08-1401, 2009 WL 1370163 (U.S. May 12, 2009) .......c.cccccccceeeceseeees i, 13, 17, 30 T. Lininger, Prosecuting Batterers After Crawford, NS Se . 20 ] OPINIONS BELOW The opinion of the United States Court of Appeals for the First Circuit is published at 568 I 3d 287 (1st Cir. 2009). Appendix A. The order of the United States District Court for the District of Massachusetts is unpublished. Appendix B. The Massachusetts Supreme Judicial Court’s opinion is published at 446 Mass. 188, 843 N.E.2d 617 (2006). Appendix C. The order of the Court of Appeals for the First Circuit denying panel rehearing and rehearing en banc is published at 577 F.3d 1 (1st Cir. 2009). Appendix D. JURISDICTION The jurisdiction of the federal district court was invoked by the timely filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The federal district court denied the petition, and the Court of Appeals for the First Circuit reversed. The judgment of the court of appeals was entered on June 10, 2009. The First Circuit denied a timely petition for panel rehearing and rehearing en banc on August 7, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254()). STATUTORY PROVISIONS The statutory provisions involved = are 28 U.S.C. § 1254(1); 28 U.S.C. § 2254(d); 28 U.S.C. § 2254(d)(1); and 28 US.C. § 2254(e)(1). Appendix E. 2 INTRODUCTION This case presents a= pressing. issue impacting the core principles of comity and federalism that underlie statutory restrictions on | federal habeas review. It also involves the dilution of the Jackson standard of review for sufficiency-of- the-evidence claims, particularly where, as here, the jury’s verdict rests on circumstantial evidence. In evaluating — sufficiency-of-the-evidence claims on habeas review, deference is due both (1) to the state court’s reasonable application of the Jackson standard under AEDPA,' see Williams uv. Taylor, 529 U.S. 362, 409-11 (2000), and (2) to the reasonable inferences that the jury could have drawn in reaching its verdict, see Jackson, 445 U.S. at 326. Recently, however, the Sixth Circuit, and now the First Circuit, have departed from this settled precedent by holding that a state-court determination that there was sufficient evidence to support a jury’s verdict can be set aside when a federal court determines that the conviction is based on “reasonable speculation” as opposed to reasonable inferences. See O’Laughlin v. O’Brien, 568 F.3d 287, 302 (1st Cir. 2009) (““O’Laughilin IIT’), Appendix A; Newman v. Metrish, 543 F.3d 793, 796 (Gth Cir. 2008), petition for cert. filed, Metrish v. Newman, No. 08-1401, 2009 WL 1370163 (U.S. May 12, 2009). ' The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA’). 28 U.S.C. § 2254(d). The “reasonable speculation” standard has no basis in this Court's precedents and is contrary to the fundamental principles of comity and federalism underlying AEDPA's stringent restrictions on federal habeas review. It invites federal habeas courts to second guess the reasoned judgment of state appellate courts, and, equally troubling, to override the reasonable inferences that the jury could have drawn from the evidence presented at trial. The need for adherence to AEDPA’s restrictions is especially strong in sufficiency-of-the-evidence cases, where double jeopardy bars the state from retrying a successful habeas petitioner. STATEMENT OF THE CASE 1. On the morning of November 17, 2000, the victim, Annmarie Kotowski, was found in her apartment severely beaten, having suffered fifteen to twenty blows that broke nearly every bone in her face and skull. Commonwealth v. O’Laughlin, 446 Mass. 188, 190, 198, 843 N.E.2d 617, 621, 626 (2006) (““O’Laughlin IT’). Appendix C.2. The victim survived, but she had no memory of the attack. /d. at 190, 843 N.E.2d at 621. 2 The opinion of the Massachusetts Supreme ducicial Court (“SJC) contains a detailed recitation of the evidence. On habeas review. these factual «(leterminations are presumed correct. unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Highlighted here are those facts from which a rational jury could infer guilt. Further facts are introduced as necessary in the statement of reasons for granting the petition 4 Respondent Michael O’Laughlin lived two doors away from the victim in the same apartment complex. /d. at 191, 199, 843 N.E.2d at 621, 627. As a maintenance worker at the complex, O’Laughlin had a master key to the victim’s apartment. /d. at 191, 199, 843 N.E.2d at 621-22, 627. The police did not detect any signs of forced entry into the victim’s apartment. Jd. at 194, 843 N.E.2d at 624. In fact, the doors were locked when Mrs. Kotowski was discovered that morning. /d. at 193-94, 843 N.E.2d at 623. Shortly before 2 a.m. on the night of the attack, the victim’s upstairs neighbor was awakened by banging and screaming noises and called 911. Jd. at 192, 843 N.E.2d at 622. The neighbor testified that he did not hear any vehicles enter or leave the area from the time he first heard screaming until the time the police arrived. Jd. at 192-93, 843 N.E.2d at 622-23. A test conducted by the State Police determined that a person in the victim’s apartment would have been able to hear that someone was speaking in the apartment above, but would have been unable to hear what was said. Jd. at 192 n.3, 843 N.E.2d at 622 n.3. When the police arrived following the 911 call, they encountered O’Laughlin outside, in 35- degree weather, wearing only boxer shorts. Jd. at 193, 200, 202, 843 N.E.2d at 623, 627, 629. According to the officers, O’Laughlin was “uneasy and distant,” and he avoided eye contact with them. Id. at 193, 200, 843 N.E.2d at 623, 627. O’Laughlin told the police that he had been awakened by screaming, but he thought it was an animal trapped in the dumpster, so he had lodged a 5 stick in the dumpster to allow the animal to climb out. Id. at 193, 200, 843 N.F.2d at 623, 627.5 But the next morning, O’Laughlin claimed that he had been awakened by noise from the arriving police cruisers. Jd. at 195, 200, 843 N.E.2d at 624, 627. Later, he gave yet another version. Jd. at 195, 200, 843 N.E.2d at 623, 627. In fact, all three accounts were lies; O’Laughlin’s telephone records indicated that he was awake in his apartment at the time he claimed to be sleeping. Jd. at 192, 200, 843 N.E.2d at 622, 627. O’Laughlin’s last telephone call was just twelve minutes before the neighbor made his 911 call, id. at 192, 843 N.E.2d at 622, and there were no other calls until later that morning, after the police had arrived at the scene and an ambulance had transported Mrs. Kotowski to the hospital. See Trial Exhibit # 57, filed with the court of appeals as supplemental authority pursuant to Fed. R. App. P. 284) on September 18, 2008. O’Laughlin had spent the evening of the attack drinking and smoking crack cocaine, but eventually ran out of drugs. O’Laughlin II, 446 Mass. at 191-92, 199, 843 N.E.2d at 622, 627. He 3 O’Laughlin successfully steered the officers away from the building, just two doors away, where the 911 caller and the victim lived. The officers left shortly after their encounter with O’'Laughlin, without speaking with the neighbor who had made the 911 call. OZLaughtlin Il, 446 Mass. at 193. 843 N.E.2d at 623. The victim remained, injured and bleeding, in her apartment, until she was discovered by her boyfriend at about 5:45 a.m. Id. The victim’s boyfriend then notified the police, who were dispatched back to the apartment. /d. at 194, 843 N.E.2d at 623. G was eager to obtain more drugs, but he had also run out of money. Jd. at 192, 199, 843 N.E.2d at 622, 627. O’Laughlin called several drug dealers during the two hours immediately preceding the attack. Jd. at 192, 199, 843 N.E.2d at 622, 627. Between midnight and two a.m., O’Laughlin made fifteen telephone calls. Tr. 8/54.4 O’Laughlin, who had previously been inside the victim’s apartment, believed that the victim “had money.” O’Laughlin IT, 446 Mass. at 192, 199, 843 N.E.2d at 622, 627. The morning after the attack, when O’Laughlin was told that someone had been “murdered,” he replied, “What do you want me to do about it?” Jd. at 194, 843 N.E.2d at 624. Later that morning, O’Laughlin went to the police station to be interviewed, but left shortly after without telling anyone that he was leaving. Jd. at 195, 843 N.E.2d at 624. When he returned, he seemed agitated and hed to the police, as described above. Id. at 195, 200, 843 N.E.2d at 624, 627-28. Following the attack, police discovered an aluminum baseball bat on the ground a _ short distance from the victim’s apartment. Jd. at 196, 199, 843 N.E.2d at 625, 627. The bat was covered with leaves and debris, but was otherwise “clean.” Id. at 196, 200, 843 N.E.2d at 625, 627. 4“Tr. [vol./[page|’ refers to the ten-volume tnal transcript. which was filed with the district court. 5 The Commonwealth performed forensic testing on the bat. As summarized by the SJC: Three small reddish brown stains on the bat tested positive for the presumptive presence of blood. One tested positive for human blood. 7 O’Laughlin’s last name was inscribed on the bat, and O’Laughlin later admitted that the bat belonged to him. Jd. at 196-97, 200, 843 N.E.2d at 625, 627. The surgeon who operated on the victim opined that her injuries “were caused by a long, sturdy, hard, round object, consistent with an aluminum bat like the one that was recovered near the apartment building.” Jd. at 198, 843 N.E.2d at 626. O’Laughlin consented to a search of his apartment the day after the attack. Jd. at 195, 200, 843 N.E.2d at 625, 628. During the search, the police alerted O’Laughlin to a red stain on his closet door and asked whether they could take swabbings. /d. at 195-96, 843 N.E.2d at 625. O’Laughlin refused and told the police to leave. Id. at 195-96, 843 N.E.2d at 625. He then removed the stain with his finger and told the police they could The three stains were swabbed and sent to the deoxyribonucleic acicl (DNA) unit for further lesting. Because of contamination in the DNA lab, tests consumed all the testable material without yielding results. An additional cutting from tape on the bat’s handle from an area where the presumptive presence of blood could still be detected was submitted to the laboratory. A State police DNA analyst obtained human genetic material from the sample indicating two or more donors, with both a male and female possible in the mixture. She concluded that the victim could not be excluded as a contributor and that one in two of any randomly selected individuals “could have been the contributor.” O’Laughilin IT. 446 Mass. at 197. 843 N.E.2d at 626. 8 return, explaining that he believed the stain was his own blood, but he was not sure. Jd. at 196, 200, 843 N.E.2d at 625, 628. That morning, police officers had noticed a “scratch or a dig mark” on O’Laughlin’s cheek, a cut on his chin, and a “round, circular bruise” below his left ear. Jd. at 194-95, 843 N.E.2d at 624. 2. Following a nine-day jury trial in May 2002, O’Laughlin was convicted of four offenses in connection with the attack on Annmarie Kotowski: (1) Burglary and Armed Assault in a Dwelling, see Mass. Gen. Laws ch. 266, § 14; (2) Armed Assault in a Dwelling, see Mass. Gen. Laws ch. 265, § 18A; (3) Armed Assault with Intent to Murder, see Mass. Gen. Laws ch. 265, § 18(b); and (4) Assault and Battery by Means of a Dangerous Weapon, see Mass. Gen. Laws ch. 265, § 15A(b). 3. On appeal, a three-judge panel of the Massachusetts Appeals Court concluded that there was insufficient evidence to support the jury’s verdicts and reversed O’Laughlin’s convictions. Commonwealth v. O’Laughlin, 63 Mass. App. Ct. 805, 817-23, 830 N.E.2d 222, 230-35 (2005). The Massachusetts SJC granted further appellate review and—in a unanimous 7-0 decision— concluded that the evidence against O’Laughlin was sufficient to support the verdicts. O’Laughlin II, 446 Mass. at 198-205, 843 N_E.2d at 626-31. After rejecting O’Laughlin’s other arguments, the SJC affirmed his convictions. Jd. at 205-11, 843 N.E.2d at 631-35. 4. O’Laughlin’s habeas petition pursuant to 28 U.S.C. § 2254 followed. In his habeas petition, 9 O’Laughlin alleged that: (1) the evidence at trial was constitutionally insufficient to prove his identity as the perpetrator; and (2) the trial court violated his right to present a defense by excluding a handwritten note from evidence that, according to O’Laughlin, supported his third-party culprit defense. After briefing by the parties and a non- evidentiary hearing, the district court denied O’Laughlin’s petition. Appendix B. O’Laughlin filed a timely notice of appeal and requested a certificate of appealability (“COA”) from the district court as to his sufficiency and right-to-present-a- defense claims. The district court granted a COA with respect to both issues. 5. In an opinion issued June 10, 2009, a panel of the First Circuit concluded that the evidence was constitutionally insufficient to convict O’Laughlin and that the SJC’s decision affirming O’Laughlin’s convictions was objectively unreasonable. O’Laughlin Ill, 568 F.3d at 308. The First Circuit thus reversed the order of the district court and remanded the case with instructions that the district court order O’Laughlin’s unconditional release with prejudice to reprosecution. Jd. at 309. In light of its holding on the sufficiency issue, the panel did not reach O’Laughlin’s remaining claim regarding his right to present a defense. Jd. at 309 n.27. G. On June 24, 2009, the Commonwealth filed a petition for panel rehearing and rehearing 6 O’Laughlins petition also included a third claim not relevant to this appeal 10 en banc in the First Circuit, which automatically stayed the First Cuircuit’s mandate pending disposition of the petition. See Fed. R. App. P. 41(d)(1). On August 7, 2009, the First Circuit denied the Commonwealth’s petition for rehearing, over the dissent of Chief Judge Sandra L. Lynch. O’Laughlin v. O’Brien, 577 F.3d 1 (1st Cir. 2009) (“O’Laughlin IV’). Appendix D. 7. On August 27, 2009, following the filing and disposition of a series of motions for release and counter-motions for a stay, including an application for stay addressed to a single justice of this Court, see Docket No. 09A194, the First Circuit issued its mandate. On September 1, 2009, in accordance with an in-chambers opinion of Justice Breyer,’ the federal district court released O’Laughlin on bail, subject to a number of conditions, including house arrest, electronic monitoring, and periodic reporting to the court’s Pretrial Services office, pending a decision from this Court on certiorari. REASONS FOR GRANTING THE PETITION This Court has repeatedly held that habeas review is not intended to result in a federal retrial of state criminal cases. Schriro v. Landrigan, 550 U.S. 465, 475 (2007); Woodford v. Garceau, 538 U.S. 202, 206 (2003); Bell v. Cone, 535 U.S. 685, 693 (2002); Williams v. Taylor, 529 U.S. 362, 386 (2000) (Opinion of Stevens, J.). Instead, AEDPA * OBrien v. O'Laughlin, No. 094194, 2009 WL 2831420 (U.S August 26. 2009) (Brever. J.. in chambers). 1] requires federal courts to defer to a state court’s application of clearly-established federal law, so long as the state court’s decision is objectively reasonable. 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 409-10. Federal habeas courts also must presume the correctness of state-court factual findings, including the reasonable inferences drawn from those facts. 28 U.S.C. § 2254(e)(1); Parke v. Raley, 506 U.S. 20, 35 (1992). This deference is warranted “to further the principles of comity, finality, and federalism.” Duncan v. Walker, 533 U.S. 167, 178 (2001) (quoting Williams, 529 U.S. at 436). Here, the First Circuit overturned a well- reasoned decision of the Massachusetts SJC and substituted its own evaluation of the evidence for the SJC’s evaluation of the same evidence. In so doing, the First Circuit exceeded its statutory authority under AEDPA. In addition, the legal standard applied by the First Circuit to the underlying sufficiency-of-the- evidence question conflicts with the standard established by this Court in Jackson v. Virginia, 443 U.S. 307 (1979). In its June 10, 2009 opinion, the First Circuit held that the evidence against O’Laughlin was constitutionally insufficient, stating that “‘[a]lthough circumstantial evidence alone can support a conviction, there are times that it amounts to only a reasonable speculation and not to sufficient evidence. ... This is such a case.” O’Laughlin ITI, 568 F.3d at 302 (quoting Newman v. Metrish, 543 F.3d 793, 796 (Gth Cir. 2008), petition for cert. filed, Metrish v. Newman, No. 08- 1401, 2009 WL 1370163 (U.S. May 12, 2009)). This 12 formulation of the legal standard for sufficiency— which is the subject of another petition for certiorari currently pending before this Court—is inherently contradictory and undermines the established rule that criminal convictions may be based on reasonable inferences drawn from circumstantial evidence. Moreover, the “reasonable speculation” standard is in direct conflict with Jackson’s directive that federal habeas courts preserve the jury’s role as factfinder by viewing all of the evidence in the light most favorable to the jury’s verdict. As a matter of practical consequence, the standard disfavors the use of circumstantial evidence and places an undue burden on the prosecution to produce direct evidence of a defendant’s guilt or face a heightened standard of evidentiary sufficiency. This erosion of the Jackson standard is of no small concern to the administration of justice. A recent study of habeas petitions filed by state prisoners pursuant to AEDPA established that 25 percent of federal habeas petitions in capital cases raised challenges to the sufficiency of the evidence, and 20 percent of federal habeas petitions in noncapital cases included sufficiency’ claims. Nancy J. King, et al., Final Technical Report: Habeas Litigation in U.S. District Courts, Vanderbilt University Law School and National Center for State Courts (2007), available at www.law.vanderbilt.edu. This Court has already granted certioran in Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008), 13 cert. granted sub nom, McDaniel v. Brown, 129 8. Ct. 1038 (2009), in which the petitioner seeks clarification of the _— sufficiency-of-the-evidence standard applicable on federal habeas review. This Court should likewise grant certiorari in this case, and in Metrish v. Newman, to resolve uncertainty about the application of the Jackson standard and to prevent federal habeas courts from retrying state criminal cases on collateral review. A. This Court Should Grant Certiorari to Prevent Federal Habeas Retrials of State Criminal Cases in violation of AEDPA. By enacting AEDPA, Congress placed “more, rather than fewer, limits on the power of federal courts to grant writs of habeas corpus to state prisoners.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003); Garceau, 538 U.S. at 206-07. These added constraints were intended “to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law,” Bell, 535 U.S. at 693 (citing Williams, 529 U.S. at 403-04). AEDPA prohibits federal courts on habeas review from overturning a state court’s reasonable application of clearly-established federal law. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 409- 10. Under AEDPA, “an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Williams, 529 U.S. at 412 (emphasis in original). Thus, a federal court “may not issue the writ simply because that court concludes in its independent 14 judgment that the state-court decision applied [the law] erroneously or incorrectly.” J/d. at 411; Woodford v. V'sciotti, 537 U.S. 19, 24-25 (2002) (per curiam). Rather, the appropriate inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409. This is a “substantially higher threshold” than de novo review. Schriro, 550 U.S. at 473 (citing Williams, 529 U.S. at 410). This Court has repeatedly re-affirmed that § 2254(d)(1) is binding on federal habeas courts and that it forecloses habeas relief where a state court has reasonably applied Supreme Court precedent. See Uttecht v. Brown, 551 U.S. 1 (2007) (reversing Ninth Circuit’s grant of habeas relief where state court reasonably applied Witherspoon-Witt rule to excusal of juror for cause in death penalty case); Yarborough v. Alvarado, 541 U.S. 652, 665 (2004) (reversing Ninth Circuit’s grant of habeas relief where state court reasonably determined that defendant was not “in custody” for Miranda purposes); Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam) (reversing Sixth Circuit’s grant of habeas relief where state court reasonably applied clearly-established federal law in affirming death sentence); Lockyer v. Andrade, 538 U.S. 63 (2003) (reversing Ninth Circuit’s grant of habeas relief where state court reasonably applied “gross disproportionality” principle to Zighth Amendment claim); Visciotti, 537 U.S. at 19 (reversing Ninth Circuit’s grant of habeas relief where state court reasonably applied Strickland to _ ineffective- assistance-of-counsel claim); Karly uv. Packer, 537 US. 3 (2002) (per curiam) (reversing Ninth 15 Circuit’s grant of habeas relief where “it [was] at least reasonable [for state court] to conclude” that there was no jury coercion); Bell, 535 U.S. at 685 (reversing Sixth Circuit’s grant of habeas relief where state court reasonably applied Strickland to ineffective-assistance-of-counsel claim). The fact that the First Circuit “purported to decide the case under the deferential standard AEDPA mandates” does not shield its opinion from review by this Court where the result reached clearly violates AEDPA’s provisions. Brown uv. Payton, 544 U.S. 133, 140 (2004). Instead, this Court looks beyond a circuit court’s mere invocation of AEDPA’s words and evaluates the substance of its decision. See, e.g., id. at 147 (reversing grant of habeas relief where “there [was] no basis for [the Ninth Circuit's] conclu[sion] that the [state court’s] application of our precedents was ‘objectively unreasonable’’); Viscrotti, 537 U.S. at 25 (reversing prant of habeas relief where Ninth Circuit recognized that § 2254(d) was applicable but “did not observe th{e] distinction [between an incorrect and an unreasonable application of federal law], [and] ultimately substituted its own judgment for that of the state court”). Here, as discussed below, the Massachusetts SJC’s application of Jackson was_ objectively reasonable, and the First Circuit “was nowhere close to the mark when it concluded otherwise.” Yarborough, 541 U.S. at 665. Certiorari is thus appropriate because the First Circuit’s decision was contrary to AEDPA, 28 U.S.C. § 2254(d)(1), and this Court’s precedents. See Sup. Ct. R. 10(c). intervention by this Court 1s necessary to prevent 16 “federal habeas ‘retrials” in sufficiency-of-the- evidence cases and to ensure that O’Laughlin’s “state-court convictions are given effect to the extent possible under law.” Bell, 535 U.S. at 693. B. This Court Should Grant Certiorari Because the “Reasonable Speculation” Standard Finds No Basis in this Court’s Cases and Threatens to Erode Jackson v. Virginia. In its June 10, 2009 opinion, the First Circuit held that “lajlthough circumstantial evidence alone can support a conviction, there are times that it amounts to only a_ reasonable speculation and not to. sufficient evidence.” O'Laughlin III, 568 F.3d at 302 (quoting Newman, 543 F.3d at 796) (emphasis added). This Court should grant certiorari because the “reasonable speculation” standard, first adopted by the Sixth Circuit and relied on by the First Circuit in this case, finds no basis in this Court’s established law. Further, the term “reasonable speculation” is inherently contradictory, it permits reviewing courts to usurp the jury’s role as factfinder, and, ultimately, it devalues circumstantial evidence, all in direct conflict with Jackson v. Virginia. 1. The “reasonable speculation” standard is not clearly-established law under AEDPA. As this Court recently reaffirmed, under AEDPA, a federal court may not grant habeas relief based on a state’s failure to apply “a specific legal rule that has not been squarely established by this 17 Court.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009); see also Carey v. Musladin, 549 U.S. 70, 76-77 (2006) (same). The term “reasonable speculation” is not found in Jackson v. Virginia or any subsequent Supreme Court opinion. The term first appeared in a 1981 opinion of the Sixth Circuit Court of Appeals, Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981), cert. denied sub nom, Anderson uv. Fuller, 455 U.S. 1028 (1982), and has come and gone in the Sixth Circuit’s jurisprudence, appearing most recently in Newman v. Metrish, 543 F.3d at 796, upon which the First Circuit relied heavily in this case. The Sixth Circuit’s formulation of the Jackson standard in Newman is itself subject to a petition for a writ of certiorari that is pending before this Court. See Metrish v. Newman, No. 08- 1401, 2009 WL 1370163 (U.S. May 12,. 2009). Before the First Circuit’s June 10, 2009 opinion, no other circuit had adopted this language. The “reasonable speculation” test, to the extent it departs from the Jackson rule (discussed below), has not been clearly established by this Court and cannot form the basis for a grant. of habeas relief. 28 U.S.C. § 2254(d)(1); Knowles, 129 S. Ct. at 1419. 2. The term “reasonable speculation” is inherently contradictory and permits appellate courts to usurp the jury’s role as factfinder. The “reasonable speculation” standard applied in the instant case not only finds no basis in the Supreme Court’s cases, but, as Chief Judge Lynch observed in her dissent from the denial of rehearing en banc, “[t]he ‘reasonable speculation’ 18 standard is materially different from the Jackson standard in that it prohibits convictions from resting on reasonable inferences drawn from the evidence.” O’Laughlin IV, 577 F.3d at 4 (Lynch, C.J., dissenting from the denial of en banc review). Under Jackson, “the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the lght most favorable to the prosecution.” 443 U.S. at 319 (emphasis in original). Jackson thus permits jurors “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jd. (emphasis added); see also Schlup v. Delo, 513 U.S. 298, 330 (1995) (the Jackson standard “focuses the inquiry on the power of the tner of fact to reach its conclusion’); Herrera v. Collins, 506 U.S. 390, 402 (1993) C[T]he standard announced [in Jackson] . . . does not permit a court to make its own _ subjective determination of guilt or innocence.”) (quoting Jackson, 443 U.S. at 318-19); Wright v. West, 505 U.S. 277, 296 (1992) (Opinion of Thomas, J.) (“In Jackson, [this Court] emphasized repeatedly the deference owed to the trier of fact, and, correspondingly, the sharply limited nature of constitutional sufficiency review.”). Here, the standard applhed by _ the First Circuit inappropriately strips jurors of the ability to make a reasonable determination—beyond a reasonable doubt—that circumstantial evidence in a case points to a defendant's guilt. Moreover, “{t]he term ‘reasonable speculation’ contains an_ inherent _— conflict. 19 Recognizing that a conclusion rests on speculation suggests that the inferences upon which it is based are unreasonable.” O’Laughlin IV, 577 F.3d at 4 n.1 (Lynch, C.J., dissenting from the denial of en banc review). Thus, the First Circuit’s statement that a jury’s “reasonable speculation” cannot amount to sufficient evidence is at best confusing and at worst encourages appellate courts to substitute their independent assessment of the evidence for that of the jury. A circuit court’s gloss on this Court’s jurisprudence can stray so far from the underlying standard as to constitute an error of law. See Lockyer, 538 U.S. at 75 (holding that the Ninth Circuit erred by defining “objectively unreasonable,” as used in Williams vu. Taylor, to mean “clear error’). In Lockyer, this Court observed that the Ninth Circuit’s “gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”. 538 U.S. at 75. In lke manner, the term “reasonable speculation” fails to give proper deference to the factfinder in sufficiency-of-the-evidence cases by conflating reasonable inferences with speculation. This gloss on the Jackson standard cannot be permitted to stand, as it “threatens to lead to reversals of state- court criminal convictions whenever a federal court chooses to sit as a jury and set aside the lawful jury’s findings of fact.” Anderson v. Fuller, 455 U.S. 1028 (1982) (Burger, C.J., dissenting from denial of certiorari). “Jackson did not authorize such gross interference with the functioning of state criminal justice systems.” /d. 20 $. The “reasonable speculation” standard devalues circumstantial evidence, unduly disadvantaging the prosecution in domestic and acquaintance violence cases. In addition to intruding on the jury’s role as factfinder, the “reasonable speculation” standard “strongly disfavors circumstantial evidence, contrary to [this Court’s] long-standing recognition that a criminal conviction may rest— on circumstantial evidence alone.” O’Laughlin IV, 577 F.3d at 4 (Lynch, C.J., dissenting from the denial of en banc review); see Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“[Wle have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a _ reasonable doubt is required.”); Holland v. United States, 348 U.S. 121, 140 (1954) (noting that, in criminal cases, circumstantial evidence is “intrinsically no different from testimonial evidence”). As Chief Judge Lynch noted in her dissent, this “devaluation of circumstantial evidence .. . has sweeping implications,” particularly in domestic’ or acquaintance violence cases, “where the victims, who often have the only direct evidence of their abusers’ guilt, are left unable to testify or they recant or refuse to cooperate.” O’Laughlin IV, 577 F.3d at 4 (Lynch, C.J., dissenting from the denial of en banc review) (citing T. Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 768 (2005) (“Recent evidence suggests that 80 to 85 percent of battered women will recant. at some point.”)). 21 Notably, in the majority of cases in which the Sixth Circuit—the only other circuit court to adopt the “reasonable speculation” standard—has applied the standard, it has reversed a_estate-court determination of a sufficiency claim. See Newman, 543 F.3d at 796 (divided panel affirmed grant of habeas relief), petition for cert. filed, Metrish v. Newman, No. 08-1401, 2009 WL 1370163 (U.S. May 12, 2009); Parker v. Renico, 506 F.3d 444 (6th Cir. 2007) (unanimous panel affirmed grant of habeas rehef); Brown v. Palmer, 441 F.3d 347 (6th Cir. 2006) (same); Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981) (divided panel affirmed grant of habeas relief), cert. denied sub nom, Anderson uv. Fuller, 455 U.S. 1028 (1982). But see Smith v. Romanowski, No. 07-1578, 2009 WL 1884451 (6th Cir. July 1, 2009) (unpublished) (divided panel affirmed denial of habeas relief, with dissent calling for reversal under “reasonable speculation” standard); Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008) (divided panel reversed district court’s grant of habeas relief, with dissent calling for affirmance under “reasonable speculation” standard). The Sixth Circuit’s, and now the First Circuit’s, dilution of the Jackson standard invites federal courts to retry state cases on habeas review, contrary to the deference that Jackson and AEDPA demand. 22 ci. This Court Should Grant Certiorari Because the Instant Case is a Good Vehicle for Clarifying Jackson’s Application to Circumstantial Cases and for Re-Affirming AEDPA’s Restrictions on Federal Habeas Review. This case well ulustrates the concerns outlined above. It presents an extremely close case on the merits of the underlying sufficiency-of-the- evidence question, as evidenced by the varied court decisions in this matter. However, the very fact that reasonable minds could differ regarding the merits of the underlying constitutional issue makes it clear that AEDPA constrained the First Circuit to deny O’Laughlin’s petition for habeas relief. See Yarborough, 541 U.S. at 664-65 (holding that AEDPA precluded Ninth Circuit from granting habeas relief where “fair-minded jurists could disagree” over whether the defendant was in custody for Miranda purposes). This Court has observed that “evaluating whether a rule application was unreasonable [under AEDPA] requires considering the Rule’s specificity. The more general the rule, the more leeway courts have im reaching outcomes in case- by-case determinations.” Id. at 664. Here, O’Laughlin’s underlying challenge to the sufficiency of the evidence is governed by the standard set forth in Jackson v. Virginia, namely, “whether, after viewing the evidence in the lght most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319 (emphasis in original). The standard is a general 23 one, and, accordingly, its application to a specific case “can demand a_ substantial element of judgment.” Yarborough, 541 U.S. at 664. Here, even a cursory review of the First Circuit’s analysis reveals that it failed to defer to the SJC’s reasoned judgments. Simply put, “there [was] no basis for {the First Circuit’s] conclu[sion] that the [SJC’s] application of [Jackson] was ‘objectively unreasonable.” Payton, 544 U.S. at 147. The First Circuit panel first assailed “the evidence that O’Laughlin acted upon a financial motive,” calling it “weak at best.” O’Laughlin IT/, 568 F.3d at 302. The court emphasized that no items of value were disturbed in the victim’s apartment. Jd. However, the court overlooked the fact that “nothing [was] displaced, but the victim’s purse was on the floor.” O’Laughlin IJ, 446 Mass. at 194, 843 N.E.2d at 624 (emphasis added). The First Circuit then dismissed the SJC’s conclusion that the jury could draw “a reasonable inference that the defendant was frightened off before he could steal anything when he heard the neighbor [speaking on the telephone],” stating that “no rational juror could conclude that the placement of this phone call fmghtened [the assailant] off given the volume and duration of Mrs. Kotowski’s screams.” O’Laughlin III, 568 F.3d at 302. The court offered no explanation as to why the volume and duration of the victim’s screams— which lasted only about thirty seconds before the neighbor called the police, O’Laughlin IT, 446 Mass. at 192, 843 N.E.2d at 622—renders the SJC’s inference unreasonable. Rather, it is a reasonable inference—and thus a required inference under 24 Jackson—that the assailant, upon realzing that the victim’s screams had roused a neighbor, would fear that the police could not be far behind. ‘his inference was further supported by a police reenactment of the 911 call, which determined that a person standing in the victim’s bedroom could hear footsteps and speaking noises from the apartment above. /d. at 192 n.3, 843 N.E.2d at 622 n.3. The First Circuit further asserted that the savage nature of the beating was “inconsistent” with the purported financial motive for the crime. O’Laughlin Ill, 568 F.3d at 302. The weight of this motive evidence was for the jury to assess. Jackson does not permit the panel to substitute its judgment for that of the jury on this issue. It was not irrational for the jury to conclude that O’Laughlin had a financial motive for entering the apartment, to wit, that he needed money to buy more drugs, and that he abandoned that purpose when the attack on Mrs. Kotowski spiraled out of control. Similarly, the First Circuit attempted to minimize evidence of O’Laughlin’s possession of a master key to the victim’s apartment, stating that although “one possible inference” is_ that ©’Laughlin used his key to enter the apartment, “several others... possessed a master key,” and “Mrs. Kotowski could have let someone familiar into her apartment.” Jd. The implication that these other possibilities detract from the sufficiency of the prosecution’s evidence is inconsistent with this Court’s observation in Jackson that the prosecution is not “under an affirmative duty to 25 rule out every hypothesis except that of guilt beyond a reasonable doubt.” 443 U.S. at 326 (citing Holland, 348 U.S. at 140). Moreover, individual pieces of evidence cannot be considered in isolation. The fact that O’Laughlin possessed a key to the victim’s apartment becomes much more powerful when considered alongside the fact that O’Laughlin had entered the victim’s apartment on a previous occasion and remarked on the value of her possessions. In addition, telephone records showed that O’Laughlin was awake in his apartment—only two doors away from the victim’s apartment—just minutes before the victim’s upstairs neighbor heard screaming, and the neighbor testified that he did not hear any vehicles enter or leave the area from the time he first heard screaming until the time the police arrived. O’Laughlin II, 446 Mass. at 192-93, 199, 843 N.E.2d at 622-23, 627. The First Circuit also attempted _ to circumscribe the inferences that could be drawn from the fact that an aluminum bat, consistent with the victim’s injunes and bearing O’Laughlin’s surname, was found outside, a short distance from the victim’s apartment. Although the panel correctly pointed out that “any bat likely would have been consistent with her injuries,” O’Laughlin II, 568 F.3d at 302, this bat was located only twenty-five yards from the crime scene, and apart from some leaves and debris covering the bat, it was “clean,” permitting the jury to infer that the bat had recently been cleaned and had not been outside for a long time. O’Laughlin IT, 446 Mass. at 196, 200, 843 N.E.2d at 625, 627. 26 With respect to the consciousness-of-guilt evidence, the court dismissed the importance of this evidence, even while admitting that “the conflicting versions O’Laughlin gave the police as to how he was awoken and his reaction to the police’s request to swab his closet door when they were searching his home could be probative evidence linking O’Laughlin to the crime.” O’Laughlin IIT, 568 F.3d at 304. According to the First Circuit, “in light of O’Laughlin’s concerns that the police would discover his drug use, this evidence was insufficient to serve as the primary basis upon which the jury could rely.”. Id. However, as the SJC correctly noted, O’Laughlin’s reaction to the request to swab the stain on his closet door “reflected not merely a general consciousness of guilt, but indicated that [O’Laughlin] feared that the blood stain could be that of the victim, a fear he would have only if he were in fact the perpetrator.” O’Laughlin ILI, 446 Mass. at 196, 200, 843 N.E.2d at 625, 628. O’Laughlin also made a statement to a friend, several days after the attack, that “with [my] bad luck whoever the assailant was... came in with a Nixon mask and a bat,” Tr. 6/186, indicating a knowledge of the crime that only the assailant would have. The First Circuit also faulted the SJC for citing the bruises and marks on O’Laughlin’s face “as evidence from which the jury could infer that an altercation occurred between O’Laughlin and Mrs. Kotowski,” stating that “these bruises and marks have minimal, if any, probative force given the fact that they were not even noted by Officers ‘Tierney and Skowron when they were responding to an assault just minutes after the attack.”. O’Laughlin 27 ll, 568 F.3d at 304. Yet, in weighing this evidence, a jury could reasonably discount the fact that the two officers observing O’Laughlin under nighttime conditions had overlooked or not understood the significance of the marks, whereas they were immediately apparent, and remarkable, to officers in the light of day when more information was available. Moreover, a jury could infer from the bruises and marks that the victim fought back during the attack, which could have enraged O’Laughlin into added physical violence. Finally, the First Circuit placed emphasis on the fact that “the prosecution had to rely on circumstantial evidence because no physical or DNA evidence linked O’Laughlin to the attack despite the copious amounts of blood at the crime scene.” Jd. The panel remarked that “[c]onsidering the large amount of blood, it is difficult to fathom how O’Laughlin was able to avoid having any blood or other DiNA evidence connect him to Mrs. Kotowski.” Id. The First Circuit’s characterization of the blood evidence is flawed. A state chemist who processed evidence at the scene testified that all the visible blood at the crime scene was contained in the bedroom. ‘Tr. 6/281-282. According to officers who responded to the crime scene, the blood inside the bedroom was mostly confined “to the carpet and the wall,” Tr. 2/199-200, and the bloodstains on the walls were “smears,” Tr. 2/243, which were “mostly in the area of the floor or just lower up on the door jams [sic].” Tr. 2/246. Based on this evidence and on photographs from the scene, the prosecution was able to argue in closing 28 that, despite copious amounts of blood on the floor, there was “hardly any” spatter on the walls. Tr. 9/76-77. Thus, it was reasonable for the jury to infer that most of the blood that the police observed at the scene accumulated while the victim lay bleeding in the hours following the attack, long after the assailant had left. More importantly, since no blood was found on any of the wall-to-wall carpeting in any of the halls or rooms beside the bedroom, nor on either of the doors leading out of the apartment, Tr. 6/281-282, the reasonable inference was that the assailant had little or no blood on him after the attack. Moreover, to the extent the First Circuit imposed a requirement that the prosecution present physical or DNA evidence to convict O’Laughlin, such a requirement is contrary to the law of this Court and the panel’s own recognition that a conviction may rest solely on circumstantial evidence. O’Laughlin III, 568 F.3d at 302; see Desert Palace, Inc., 539 U.S. at 100; Holland, 348 U.S. at 140.8 5 In addition, to the extent the panel imphed that the prosecution was required to disprove O Laughlins theory that the victim's estranged husband committed the = attack. O'Laughtlin U7, 568 F.3d at 308 (noting the “compelling third- party evidence”), this is also contrary to Jackson, 443 US. at 326 Viewing the evidence in the light most favorable to the prosecution means recognizing that the jury could reject O'Laughlin’s third-party culprit evidence. See Sehlup. 513 US at 330 ((Ujnder Jackson. the assessment of the credibility of witnesses is generally beyond the scope of review. ). Here. the third-party evidence only estabhshed a motive on the husband's part. The other evidence tended to 29 Perhaps the best indicator that this was a close case, requiring deference to the SJC, is that the First Circuit panel itself was divided as to what aspects of the SJC opinion were unreasonable under AE DPA: This is not to say that each of us is convinced that the state court’s decision is unreasonable in every respect. But this case comes to us on arguments as presented by the parties. This panel may not be in complete unanimity in all particulars, but we do agree that [O’Laughlin] has the better of the argument with respect to the means_ evidence introduced by the prosecution at trial. O’Laughlin IIT, 568 F.3d at 302 n.19. In sum, because “fair-minded jurists” could (and did) differ about whether the SJC’s opinion was in error, under AEDPA, the First Circuit was required to defer to the SJC’s reasoned judgment and to affirm the district court’s denial of habeas relief. Yarborough, 541 U.S. at 664-65. The costs of permitting the First Circuit to bypass AEDPA’s restrictions in this case would be extremely high. Habeas review, by its very nature, “entails significant costs.” Engle v. Isaac, 456 U.S. 107 (1982). “Among other things, ‘fiJt disturbs the State’s significant interest in repose for concluded negate his opportunity to commit the cmme See Commonwealth's Brief to the SJC, Supp. Ans., Ex. L at 15-17 (summarizing third-party evidence) 30 litigation, denies society the right to punish some admitted offenders, and intrudes’ on _s state sovereignty to a degree matched by few exercises of federal judicial authority.” Wright, 505 U.S. at 293 (Opinion of Thomas, J.) (quoting Duckworth ov. Eagan, 492 U.S. 195, 210 (1989) (O’Connor, J., concurring)). In sufficiency cases such as this, the friction engendered between the state and federal justice systems is intensified by the fact that double jeopardy principles bar retrial of a _ petitioner granted habeas relief. This exacts a significant toll on the interests of federalism and comity, and it upsets expectations—particularly of victims—in relation to the finality of state-court criminal proceedings. Moreover, this is not an isolated problem. This Court is currently presented with at least two other cases in which it is claimed that a federal appellate court exceeded its authority on habeas review by overturning a state-court determination of evidentiary sufficiency. See Newman, 543 F.3d at 796, petition for cert. filed, Metrish v. Newman, No. 08-1401, 2009 WL 1370163 (U.S. May 12, 2009); Brown v. Farwell, 525 F.3d at 787, cert. granted sub nom, McDaniel v. Brown, 129 S. Ct. 1038 (2009). Certiorari is warranted in this case, as in Metrish v. Newman and McDaniel v. Brown, to resolve uncertainty about the application of the Jackson standard and to prevent federal retrials of state criminal cases in the guise of habeas review. 31 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, MARTHA COAKLEY Attorney General for the Commonwealth of Massachusetts JESSICA V. BARNETT* JAMES J. ARGUIN Assistant Attorneys General One Ashburton Place Boston, MA 02108-1598 (617) 727-2200 *Counsel of Record Counsel for Petitioner October 21, 2009 APPENDIX la APPENDIX A [Published at: 568 F.3d *287] United States Court of Appeals, First Circuit. Michael O’7LAUGHLIN, Petitioner, Appellant, Vv. Steven O’BRIEN, Superintendent, Old Colony Correctional Center, Respondent, Appellee. No. 08-1010. Heard Sept. 12, 2008. Decided June 10, 2009. a FP *289 Kenneth I. Seiger, for appellant. Scott A. Katz, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief for appellee. Before TORRUELLA, BALDOCK,F* and HOWARD, Circuit Judges. FN* Of the Tenth Circuit, sitting by designation. TORRUELLA, Circuit Judge. 2a On the morning of November 17, 2000, Annmarie Kotowski (“Mrs. Kotowski’) was found in her apartment severely beaten and covered in blood. She survived, but could not remember the details surrounding the attack or the person who attacked her. After an _ investigation, police identified Petitioner-Appellant Michael O’Laughlin as the perpetrator. A Massachusetts Superior Court jury subsequently convicted O’Laughlin of the following counts: (1) burglary and armed assault in a dwelling; (2) armed assault in a dwelling; (3) armed assault with intent to murder; and (4) assault and battery by means of a dangerous weapon. The Superior Court then sentenced O’Laughlin to 35-50 years on Counts One and Two; 19-20 years on Count 3; and 9-10 years on Count 4, ruling that the sentences were to be served concurrently. The intermediate Massachusetts Appeals Court reversed the judgments holding that there was insufficient evidence to support the verdicts. Commonwealth v. O’Laughlin, 63 Mass. App. Ct. 805, 830 N.E.2d 222 £(2005) = (hereinafter “O’Laughlin TI’). The Massachusetts Supreme Judicial Court (“SJC”) reinstated the judgment reasoning that there was sufficient evidence to support the verdicts. Commonwealth v. O’Laughlin, 446 Mass. 188, 843 N.E..2d 617 (2006) (hereinafter “ O’Laughlin Ll “). *290 O’Laughlin filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts on grounds that (1) the SJC’s ruling was objectively unreasonable because there was insufficient evidence to support 3a a guilty verdict and (2) that the SJC violated his constitutional right to present a defense. The district court denied O’Laughlin’s petition for habeas relief. After careful consideration, we reverse the judgment of the district court and order the district court to grant the petition. I. Background A. Factual Summary “We must ‘accept the state court findings of fact unless [O’Laughlin] convinces us, by clear and convincing evidence, that they are in error.’ “ Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006) (quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc)); see also 28 U.S.C. § 2254(e)(1). We note that the SJC’s findings of fact may be “supplemented with other facts from the record that are consistent with the SJC’s findings.” Lynch, 438 F.3d at 39; see also Healy v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006). Thus, we recount the facts largely as they were presented in the SJC’s opinion. In May 2000, Mrs. Kotowski revealed to David Kotowski (““Mr. Kotowski’), her husband of over twenty-five years, that she was romantically involved with James Finn. In September 2000, Mrs. Kotowski moved out of her home into the Fox Hollow condominium complex in a neighboring town.FN! She resided alone. O’Laughlin, a member of Fox Hollow’s maintenance staff, lived two doors down from Mrs. Kotowski. Like other members of the maintenance staff, he possessed a master key to 4a all the buildings on the property, including a key to Mrs. Kotowski’s apartment.FN2 FN1. The SJC indicated a “difficult” marital situation: “Both the victim and her husband characterized their relationship as friendly but strained. (Other witnesses described _ the husband’s attitude as alternating between loving and angry.)” Approximately a week before the attack, she conversed for the first time with her husband about the possibility of getting a divorce. Mrs. Kotowski testified that Mr. Kotowski was “crushed” by the move. FN2. O’Laughlin had been inside Mrs. Kotowski’s apartment at least once previously in September to fix a window, among other tasks. The SJC noted that O’Laughlin “took some interest” in Mrs. Kotowski prior to the attack. For example, when Mrs. Kotowski’s sister was visiting, O’Laughlin stood outside her apartment and asked Mrs. Kotowski if there were “any more good looking women in there[.]” Also, he referred to Mrs. Kotowski five or six times in conversations with acquaintances, citing her “beautiful antique furniture” in her apartment as evidence of her wealth and remarking that he was attracted to her “body type.” FN3 FN3. In addition, the SJC states that just days before the attack, one 5a acquaintance testified that O’Laughlin had “really scared” Mrs. Kotowski by inquiring “about the window in her apartment.” However, once Mrs. Kotowski realized he was on the maintenance staff, she simply walked away. The day before the attack, O’Laughlin cashed a $457.16 paycheck and made $200 child support payment to his ex-wife. Also, the SJC stated that O’Laughlin was agitated when he was unable to sell his trailer to his neighbor because the neighbor could not come up with $500. The neighbor paid him the next day. On the night of the attack, the SJC described O’Laughlin as “[nJervous, jittery, [and] paranoid....” This was “typical behavior when he smoked crack cocaine,” which O’Laughlin had done earlier *291 that evening at the home of a frend, Mark Puleri. As the mght wore on, O’Laughlin was “depleted of drugs and most of his cash.” At 9:00 or 9:30 p.m. that evening, O’Laughlin, now at home alone, telephoned another friend, Grover Finkle, asking him for a ride to purchase drugs. Finkle, who was at Richard O’Leary’s house, had previously smoked crack cocaine with O’Laughlin and knew a drug dealer. Finkle and O'Leary, a taxicab driver, arrived at O’Laughlin’s apartment an hour later. However, they soon left without giving O’Laughlin a ride because O’Laughlin was unable to secure money for cab fare.FN4 Ga FN4. O’Leary refused to drive unless O’Laughlin provided him with an advance payment. In the early morning hours of November 17, between 12:10 and 1:43 a.m., fourteen telephone calls were placed to or from O’Laughlin’s apartment. The majority of these calls were placed to known drug dealers. Shortly before 2:00 a.m. George Whittemore, a neighbor living directly above Mrs. Kotowski, awakened to a woman screaming directly below and the sound of “wood hitting wood.” According to Whittemore, a carpenter by profession, these sounds lasted for about thirty seconds. Whittemore dialed 911 at 1:55 a.m. He stayed awake until the police arrived and flashed his apartment lights to indicate his apartment to the police. Between the time he called 911 and when the police arrived, Whittemore did not hear any vehicles arrive or depart from the area. The police later conducted a reenactment of the 911 call. Based on this reenactment, they concluded that a person standing in Mrs. Kotowski’s bedroom could have heard Whittemore’s footsteps as he walked to the telephone as well as Whittemore’s voice, but would have been unable to make out what was being said. Officers William Tierney and_ Phillip Skowron arrived six or seven minutes after Whittemore’s 911 call. They were unable to find apartment number 202, the apartment reported in the dispatch, because the apartment numbers at 7a the complex had been recently renumbered. They did not note anything unusual, but observed O’Laughlin walking from the building on a walkway leading from apartment number 19. O’Laughlin was wearing only boxer shorts and Officer Tierney testified that O’Laughlin appeared ‘Impervious’ to the near-freezing temperature. O’Laughlin questioned the officers regarding what had happened and the officers answered that they were responding to a report of a woman screaming. When they asked him if he had heard any screaming, O’Laughlin replied that he had been awakened by screaming, but believed it to be a raccoon trapped in a dumpster.FN5 O’Laughlin explained that he had placed a stick in the dumpster so that it could escape. Officer Tierney then looked inside the dumpster and saw a stick, but no animal. The SJC noted that during his conversation with the officers, O’Laughlin seemed “uneasy and distant,” not making eye contact with them. The police further searched the area, but left after finding nothing suspicious. FN5. O’Laughlin’s supervisor testified that the complex had been having problems with raccoons getting caught in the dumpster. Whittemore testified that throughout the night he heard a woman moaning and crying directly below him.’N® He also testified that later in the morning, he heard the *292 sound of glass breaking, banging, and a man outside Mrs. Kotowski’s apartment calling her name. The man subsequently yelled “Oh, my God.” 8a FN6. Although he heard these sounds, Whittemore did not contact the police again that night. The man Whittemore was referring to was Mrs. Kotowski’s boyfriend, Finn, who had arrived at 5:45 a.m. at Mrs. Kotowski’s apartment. On weekdays, Finn routinely joined Mrs. Kotowski for a morning coffee prior to starting his workday. On this particular morning, when Finn knocked on the door, he only heard her say, “Who is it?” in a strange voice. After failing to reach her from a nearby public telephone, Finn testified that he forced open a locked sliding glass rear door. Although the living room appeared to be in order, he found Mrs. Kotowski lying on the floor next to the bed. He testified that “there was just blood everywhere.” Finn dialed 911 just before 6:30 a.m. Mrs. Kotowski, who had severe wounds on her head, was taken to Berkshire Medical Center. The police ruled out Finn as a suspect because of his alibi (which they confirmed), his reaction of shock upon discovering Mrs. Kotowski, and _ his cooperation with the police. Officers who arrived after Finn’s 911 call observed blood in the victim’s bedroom on the bed, the pillow, the floors, the walls, and on the door jambs of the bathroom and bedroom. The SJC noted that the crime scene contained “ ‘quite a bit of blood’ that appeared to be ‘splatters’ on the comforter.” Further, the bed rail was dented, with wood splinters on the ground beneath the dent. Officer Skowron testified that everything else was intact as the apartment was neat and nothing was displaced. Mrs. Kotowski’s purse was on the floor, 9a however. Officer Skowron also testified that there ~ were no signs that the front door or the rear sliding door had been forced open (which contradicted a report by an earlier officer on the scene stating that the rear door was broken); that the drawers were closed; and that the light and figurines on the dresser were upright. Mrs. Kotowski testified that no items of value were missing from the apartment. ‘hese items, which were in plain view on top of the dresser, included diamonds, pearls, and an expensive watch in the bedroom. Also, Mrs. Kotowski’s purse contained her credit cards, about $28 in cash, and a checkbook. There was $522 in cash in a dresser drawer. Constance Cappel, a neighbor who lived in the apartment between O’Laughlin and Mrs. Kotowski, testified that she heard voices outside Mrs. Kotowski’s apartment at about 6:45 a.m. Cappel went outside and saw Mrs. Kotowski being loaded into an ambulance. She _ knocked on O’Laughlin’s door and told him that she thought someone had been murdered. O’Laughlin, who answered the door in his boxer shorts and looked like he had just awoken, responded “What do you want me to do about it?” At 8:45 a.m. O’Laughlin came out of his apartment dressed for work, approached one of his co-workers and Cappel, and inquired about what was happening. After his co-worker explained the situation, O’Laughlin described his encounter with the police the previous night and how he had been awakened by the police cruisers. O’Laughlin also informed his co-worker that he told the police that 10a he thought raccoons had been in the dumpster making a “kind of squealing sound.” At about 9:40 a.m., Officers Tierney and Todd Briggs talked with O’Laughlin outside the apartment building and Officer Tierney noticed a “scratch or a dig mark in [O’Laughlin’s] left cheek, [a] small cut on his chin and a round, circular bruise ... just below his left car.” Officer Tierney was unsure about how fresh these marks were. The SJC remarked that although O’Laughlin was initially “reluctant,” he *293 agreed to give a statement at the police station when informed that Officer Tierney would conduct the interview. O’Laughlin arrived at the station at 10:40 a.m., but was told by Chief Ronald Glidden to wait for Officer Tierney, who had yet to arrive. Officer Tierney arrived twenty minutes later and told O’Laughlin that he would be “right with him.” However, when he returned five minutes later, O’Laughlin had left.?N7 FN7. O’Laughlin’s co-worker testified that O’Laughlin went back to the apartment complex and told him the person O’Laughlin was supposed to meet was not there. After discussing the matter further, O’Laughlin decided to go back to the police station accompanied by his co-worker. O’Laughlin returned to the police station twenty minutes later and was interviewed by Chief Glidden for about ten minutes. Chief Glidden testified that O’Laughlin “seemed agitated” during lla the interview. In his statement to Chief Glidden, O’Laughlin stated that he had been “drinking before he went to bed and he just didn’t think he was awake until he heard the cruisers at approximately two o'clock.” He thought he may have heard foxes or raccoons before that, but was uncertain. O’Laughlin said that he had “seen [the victim] around,”; that he and a friend had joked about her boyfriend; and that he had been in that apartment to repair a window. After the interview concluded, he went home. State Troopers David Buell and Brian Berkel arnived at the complex around noon. ‘l'rooper Buell spoke to O’Laughlin, who stated that he had been out with his friend, Puleri, the previous night, returned at 10:30 p.m., went to sleep around 11:30 p.m., and was awakened by screaming, which he thought was a fox fighting with a _ raccoon. O’Laughlin said that a short time later the police arrived and he went out to speak with them. After the officers left, he slept until 7:30 a.m., when he was awakened by his neighbor, who had informed him that there had been a murder. Trooper Buell asked O’Laughlin for consent to search his apartment in order to eliminate him as a suspect and because his apartment was in close proximity to Mrs. Kotowski’s apartment. O’.aughhin consented, and allowed ‘Trooper Berkel to take photographs and two police chemists to search for blood stains. Trooper Berkel photographed a red stain on a closet door near the kitchen area. A chemist who saw the stain asked O’Laughlin if his consent’ included taking swabbings. O’Laughlin responded that it did not. 12a Soon thereafter, O’Laughlin asked the officers to leave his apartment. Outside the apartment, the police decided to apply for a search warrant. They returned to O’Laughlin’s apartment and informed him of their intent to secure the apartment and obtain a warrant. O’Laughlin replied that they did not need to pursue a warrant because he would allow them back into the apartment. He also told the officers that he had wiped the red stain off the closet door with his finger, and thought it was his own blood, but was not certain. O’Laughlin told the police that he was concerned about a search because he was afraid police would find his drug paraphernalia and because he possessed money that he did not want taken. Trooper Buell asked O’Laughlin to give him the drug paraphernalia, telling him that he would not be charged with drug possession. When the chemists’ returned to the apartment, the red stain on the closet door was gone. However, the area, where the stain had been, tested positive for the presumptive *294 presence of blood. The chemists collected a sample by swabbing.'N8 FN8. Chemists also collected swabs from two small, red-brown stains in the apartment that tested positive for the presumptive presence of blood, and cuttings of what appeared to be blood from O’Laughlin’s bed comforter. O’Laughlin handed over to the police the clothes he said he wore the l3a previous night and permitted the chemist to examine his boots. A state trooper searched the area surrounding the apartment complex with a dog trained to search by scent. The dog found an aluminum bat about twenty-five yards away from a building’s dumpster in the woods. It appeared to be covered in leaves and debris, but was otherwise clean. O’Laughlin’s name was inscribed on the bat. On November 20, O’Laughlin called a friend and informed him that he was a suspect in the assault. The SJC noted that O’Laughlin was “upset” while he told his friend that he was “very happy that {[Mrs. Kotowski] had survived ... [s]o that she could identify her assailant,” but with his bad luck the assailant could have been wearing a “Nixon mask” and entered with a baseball bat. Later that day O’Laughlin was arrested. While in custody, O’Laughlin told an inmate that although he owned the bat, he last saw it when he moved into his apartment.FN® IN9. At booking, O’Laughlin remarked during his photograph that the mark on his face was a pimple. Trooper Michael Hill thought it was a blemish or an injury. The police recovered fourteen fingerprints and one palm print from Mrs. Kotowski’s apartment, none of which matched those of O’Laughlin.FN!° In addition, footprint impressions taken at the apartment did not match O’Laughlin's l4a boots. State Police Lieutenant Brian O’Hara, trained in fingerprint analysis and _ bloodstain patterns, opined that a blood stain on Mrs. Kotowski’s pillow was caused by the transfer of blood from a person’s right hand, but the handprint was unidentifiable. He testified that the hand had to have had a significant amount of blood on it, not all of which would have been transferred. FN10. Twelve of these prints were identifiable and excluded O’Laughlin; two were unidentifiable; and one was identifiable, but police could not match it to any known prints. A state police chemist examined _ the aluminum bat found in the woods. Three small reddish brown stains on the bat tested positive for the presumptive presence of blood, only one of which tested positive for human blood. The three stains were swabbed and sent to the DNA unit for further testing. There was contamination in the DNA lab, and thus the tests consumed all the testable material without yielding results. An additional cutting from tape on the bat’s handle, an area where the presumptive presence of blood could still be detected, was submitted to the laboratory. A state police DNA analyst concluded that while Mrs. Kotowski could not be excluded as a contributor, one in two of any randomly selected individuals could have been the contributor. FN!! FN11. Because of the contamination, only the following samples’ were deemed adequate for further testing: blood on Mrs. Kotowski’s bathroom 15a floor; a stain on the wall behind O’Laughlin’s dresser; and two cuttings from O’Laughlin’s comforter. Of these samples, it was concluded that all of the blood found in O’Laughlin’s apartment belonged to him, and O’Laughlin was excluded as a possible contributor to the sample of blood taken from Mrs. Kotowski’s bathroom. A surgeon who performed reconstructive surgeries on Mrs. Kotowski after the attack testified that she had sustained between fifteen to twenty blows that broke *295 nearly every bone in her face and skull. The only exception was her jaw. She also had defensive wounds on her hands caused by five to ten blows. The surgeon gave an opinion that Mrs. Kotowski’s injuries were cased by a long, sturdy, hard, round object, consistent with an aluminum bat that was recovered in the woods on the day of the attack. B. Procedural History In December 2000, A Berkshire County grand jury charged O’Laughlin with four offenses: (1) burglary and armed assault in a dwelling, see Mass. Gen. Laws ch. 266, § 14; (2) armed assault in a dwelling, see Mass. Gen. Laws ch. 265, § 18A; (3) armed assault with intent to murder, see Mass. Gen. Laws ch. 265, § 18(b); and (4) assault and battery by means of a dangerous weapon, see Mass. Gen. Laws ch. 265, § 15A(b). 16a Following a nine-day jury trial in May 2002, O’Laughlin was convicted of all four charges. O’Laughlin appealed. 1. The Massachusetts Appeals Court Opinion On appeal, the Massachusetts Appeals Court concluded that there was insufficient evidence to support the jury’s verdicts. The Appeals Court stated that while the government’s’ evidence demonstrated that O’Laughlin had a motive of robbery, an opportunity to commit the crime, a means to commit the crime, and a consciousness of guilt, the evidence was not enough to establish guilt. The Appeals Court concluded that “[nJothing in the record sufficiently links the defendant to the crime to permit the conclusion beyond a reasonable doubt that he was the perpetrator” and that “[philing inference upon inference does not amount to proof beyond a reasonable doubt.” O’Laughlin J, 830 N.E.2d at 231-32. In reaching its conclusion, the Appeals Court noted that the bat was only “consistent” with the weapon used in the attack; that O’Laughlin’s les to the police concerning his whereabouts and his removal of the stain from his closet door, “while certainly permissible to show a guilty conscience, cannot fill the gap in the proof of identity’; that O’Laughlin did not show physical strain in his appearance and demeanor when confronted by the police just about twelve minutes after the attack, which would have been consistent with someone who had just committed such a “brutal” attack; and that the third-party culprit evidence in this case detracted from _ the government's case. /d. at 232-34. Thus, the Appeals 17a Court reversed O’Laughlin’s convictions and directed that judgments be entered in his favor. 2. The SJC Opinion The Commonwealth then sought and received further appellate review from the SJC. The SJC concluded that the evidence against O’Laughlin had been sufficient and affirmed his convictions, stating that circumstantial evidence of motive, opportunity, means, and consciousness of guilt “permissibly convinced the jury of the defendant’s guut.”. O’Laughlin IT, 843 N.E.2d at 627. The SJC stated that the jury could permissibly find that O’Laughlin’s motive to break into Mrs. Kotowski’s apartment was robbery. /d. It pointed to the fact that O’Laughlin had taken drugs twice previously on the night of November 16, had “run out” of drugs and money, and was calling around as late as 1:43 a.m. to purchase drugs, which the SJC noted was “only twelve minutes before the victims’ upstairs neighbor telephoned the police department to report screams and banging sounds from downstairs.” /d. The SJC further noted that O’Laughlin had previously entered the victim’s apartment *296 and “had reason to believe that she was wealthy and might have cash or valuables.” /d. The SJC commented that O’Laughlin “needed money immediately and the victim was a nearby and likely source.” /d. Accounting for the fact that nothing was taken from the apartment, the SJC pointed to a_- reenactment during trial 18a demonstrating that the neighbor could be heard in the apartment below when he called the police. The SJC concluded that “[i]t is a reasonable inference that the defendant was frightened off before he could steal anything when he heard the neighbor speaking.” Jd. at 627 n. 11. The SJC also concluded that O’Laughlin had the opportunity to commit the crime because he resided only two apartment doors away from Mrs. Kotowski and that he had a master key which gave him access to her apartment. /d. at 627. In addition, the SJC_ pointed to Whittemore’s testimony that he did not hear any cars going to or from the apartment complex in the interval between when he first heard the screaming and when the police arrived. Jd. The SJC also reasoned that O’Laughlin had the means to commit the crime by stating that the aluminum bat was found a short distance from Mrs. Kotowski’s apartment complex. Jd. The SJC stated that “(t]he jury would certainly be warranted in concluding that the bat was the defendant's.” /d. The SJC explained that “[h]is surname, not a common one, was visible on the bat handle and he mentioned to someone in jail that he was the owner of the bat the police had found.” Jd. The SJC further noted, however, that although the bat was covered by some leaves and debris, it was otherwise “clean” when discovered. 7d. It also acknowledged O’Laughlin’s statement that he had not seen the bat since the day he had moved into his apartment. /d. at 627 n. 12. 19a Most notably, the SJC indicated the significant evidence pointing to O’Laughlin’s consciousness of guilt. /d. at 627. First, the SJC referenced O’Laughlin’s demeanor when the police first arrived on the scene and_ discovered O’Laughlin outside in his “boxer shorts in near freezing temperature.” Jd. The SJC noted that when he talked with the police, he was “uneasy and distant” and did not make eye contact with the police officers. Jd. Also, the SJC remarked that the differing versions O’Laughlin gave to police as to the reason he woke up was indicative of his untruthfulness.FN!2 Jd. at 627-28. The SJC further noted that O’Laughlin reluctantly participated in an interview with the police ar.d seemed “agitated” when he spoke with them. /d. at 628. FN12. The SJC stated that O’Laughlin lied to the police when he told them that he was awakened by _ the screaming, but his telephone records show that he was making phone calls until twenty minutes before the police arrived on the scene. He later told the police that the police cruisers woke him up. Also, he told the police in an another interview that he went to bed at 11:30 p.m., awoke to screaming that he believed were animals fighting, went back to sleep and awoke to his neighbor’s knock on his door who was there to inform O’Laughlin that Mrs. Kotowski was severely beaten. /d. at 627-28. 20a Moreover, the SJC pointed to O’Laughlin’s reaction to the police’s request when they asked for a swabbing of the red stain in the closet door of his apartment. Jd. Although O’Laughlin later allowed the police to return, the stain was gone and O’Laughlin admitted to having removed it with his finger, saying that he believed that it was his own blood. The SJC conciuded that “[t]his evidence reflected not merely a general consciousness of guilt, but indicated that the defendant feared that the blood stain could be that of the *297 victim, a fear he would have only if he were in fact the perpetrator.” Jd. Finally, the SJC pointed to the fact that O’Laughlin had “a ‘scratch or dig mark’ on his cheek, a small cut on his chin and a bruise on his neck.” Jd. While acknowledging that the police officer could not discern whether the marks were “fresh,” the SJC concluded that “it could be inferred that the injuries were sustained during a physical encounter with the victim.” Jd. In sum, the SJC stated that the evidence taken together “was sufficient to permit the jury to determine beyond a reasonable doubt that the defendant was the perpetrator of the vicious attack on the victim.” Jd. In reversing the lower appellate court decision, the SJC distinguished its case law in Commonwealth v. Mazza, 399 Mass. 395, 504 N.E.2d 630 (1987), stating that in the instant case the prosecution “presented more evidence linking [O’Laughlin] to the assault.” O’Laughlin II, 843 N.E.2d at 629. Furthermore, the instant case 2la contained evidence of means as represented by the aluminum bat, “significantly stronger evidence of consciousness of guilt,” bruises on O’Laughlin’s face, and the fact that OLaughlin was wearing only boxers when the police found him, which “would be consistent with his having disposed of bloody outer garments.” Jd. With respect to O’Laughlhin’s attire, the SJC added that “[t]he jury could find that, had the defendant gone outside to check for animals in the dumpster (as he claimed), it was implausible that he would have done so without putting on at least minimal clothing, not only for purposes of protection against the cold but also for purposes of decency.” Id. The SJC disagreed with the weight placed by the Appeals Court on the fact that O’Laughlin “did not manifest any signs of recent physical exertion (sweat, shortness of breath, wet hair or disarray)” twelve minutes after the attack. Jd. at 629 n. 13. The SJC stated that this did not detract from the government’s case because twelve minutes after the attack there would be no reason for O’Laughlin to show signs of this physical exertion. /d. Also, the SJC disagreed with the Appeals Court that the third-party culprit evidence presented in this case detracted from. the government's argument or affected the sufficiency of the evidence because it was not “so overwhelming that no rational jury could conclude that the defendant was guilty.” Jd. at 630. The SJC stated that the third-party culprit evidence “simply tended to contradict the Commonwealth’s evidence; it did not show it to be incredible or conclusively 22a incorrect.” FNS Jd. (internal quotation marks omitted). FN13. The SJC noted O’Laughlin’s third-party culprit evidence in a footnote: The defense sought to portray the victim’s husband, from whom she had recently separated, as_ the third-party culprit. The husband was aware of the wife’s new address and that she was involved with another man. The victim described the husband as being “upset” but not angry about this relationship. Others said the husband alternated between being “nice” and verbally abusive. The husband testified that he was at home at the time of the assault and that he received two telephone calls just before 6 a.m. Each time his “caller ID” indicated the source of the call as the victim’s apartment, but no one was on the line. He dialed the number, and a man answered. One witness thought he saw the husband's car in his workplace parking lot at approximately 6 am. on _ the morning of the attack, but a neighbor saw the husband’s car parked at home at 6:20 a.m. The husband was generally cooperative with the police, but did not permit the police access to “personal” 23a letters to his wife. Tests indicated the presumptive presence of blood on one of the husband’s forearms on the day of the attack. On the evening of November 17, the police observed garbage bags on the floor of the husband’s garage and dark clothing in a clothes dryer. Two wet towels strongly smelling of bleach were found in a plastic bag in the trunk of the husband's car. One of the towels was the same as towels found in the victim’s linen closet. The husband explained that the towels smelled because he did not know how to do laundry and had used too much bleach on them. He said he brought them on a hunting trip the previous weekend and had forgotten them in the trunk. Finally, the husband kept wooden baseball bats and other athletic equipment in his garage. Id. at G30 n. 14. *298 3. O’Laughlin’s Habeas Petition In his habeas petition before the district court, O’Laughlin alleged that (1) the evidence at trial was insufficient to prove that he was a perpetrator of the offenses for which he was convicted; and (2) the trial court violated his mght to present a defense by excluding a handwritten note that, according to O’Laughlin, supported his third-party culprit defense. After briefing by the 24a parties and a non-evidentiary hearing, the district court denied O’Laughlin’s petition reasoning that “like the courts that have looked at this cold record before me, this is a close question. But the petition must be under federal law denied.” O’Laughlin then filed a timely notice of appeal and requested a Certificate of Appealability (“COA”) as to his sufficiency and right-to-present a defense claims. The district court granted a COA with respect to both issues. Il. Discussion A. Standard of Review We review de novo the district court’s decision to grant or deny a habeas petition under 28 U.S.C. § 2254. Healy, 453 F.3d at 25. Under the Antiterrorism and Effective Death Penalty Act of 1996 (““AEDPA”), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), a federal court shall not grant a petition for habeas relief “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the state court decision: 1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or 2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “A state court’s findings on factual issues ‘shall be presumed to be correct’ and the petitioner bears the burden of disproving factual findings by ‘clear and convincing 25a evidence. “ McCambridge, 303 F.3d at 34-35 (quoting 28 U.S.C. § 2254(e)(1)). Sufficiency claims are generally FN!4 evaluated under § 2254(d){1) and we look to “whether the state court decision constitutes an unreasonable application of clearly established Supreme Court case law.” Hurtado v. Tucker, 245 F.3d 7, 15 (Ist Cir. 2001) (quoting Williams uv. Matesanz, 230 F.3d 421, 426 (1st Cir. 2000)). FN14. Although an analysis under § 2254(d)(1) is appropriate in the present case, we say “generally” because we need not conclude that we must “evaluate a_ state court's resolution of a Jackson sufficiency-of- the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d)(2).” Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir. 2007) (emphasis added), rev'd on other grounds sub nom. ‘addington v. Sarausad, --- U.S. ----, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009); cf. id. at 695 (Reinhardt, J., concurring in part and dissenting in part) (“I see nothing in law or logic preventing us from evaluating Jackson claims under § 2254(d)(2), which authorizes us to grant habeas relief when the state court decision we are reviewing is ‘based on = an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’’) (quoting § 2254(d)(2)). 26a *299 “[T]he ‘unreasonable application of prong of § 2254(d)(1) ‘reduces to a question of whether the state court’s derivation of a case- specific rule from the [Supreme] Court’s generally relevant jurisprudence appears objectively reasonable.” “ Jd. at 16 (quoting Matesanz, 230 F.3d at 425). “Habeas review involves the layering of two standards. The habeas question of whether the state court decision is objectively unreasonable is layered on top of the underlying standard governing the constitutional right asserted.” /d. The constitutional right asserted in sufficiency of the evidence claims is set forth by the Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under Jackson, due process requires that “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof- defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” /d. at 316, 99 S. Ct. 2781. More succinctly, the relevant test we take from Jackson is “whether, 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.” /d. at 319, 99 S. Ct. 2781 (emphasis in original). Thus, for our purposes, we must decide whether the SJC’s application of Jackson to O’Laughlin’s case was “objectively unreasonable.” Although “[t]he term ‘:nreasonable’ is no doubt 27a difficult to define,” Hurtado, 245 F.3d at 17 (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)), we have explained that “some increment of incorrectness beyond error is required.” McCambridge, 303 F.3d at 36 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). “The increment need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court.” Jd.FN!5 To be sure, “the gap between erroneous state court decisions and unreasonable ones is narrow,” Evans v. Thompson, 518 F.3d 1, 6 (ist Cir. 2008), and “it will be the rare case that will fall into this gap,” id. (citing Williams, 529 U.S. at 388, 120 S. Ct. 1495). However, for an _ erroneous decision to be unreasonable, judicial incompetence is_ not necessary and “a case will fall into this narrow gap precluding relhef only when ‘it is a close question whether the state decision is in error.’ “ /d. at 7 (quoting McCambridge, 303 F.3d at 36) (emphasis in original). “ ‘It is enough if the Supreme Court’s general principles can be discerned and if, respectfully but with confidence,’ *300 the federal court concludes that the state court unreasonably applied federal law.” Jd. (quoting White, 399 F.3d at 25). FN15. We also note “that a state-court adjudication of an issue framed in terms of state law may receive section 2254(d)(1) deference so long as the state standard is at least as protective of the defendant’s rights as its federal counterpart.” Leftwich v. Maloney, 532 F.3d 20, 23-24 (1st Cir. 2008); see also 28a White v. Coplan, 399 F.3d 18, 23 (st Cir. 2005) (explaining that a iederal habeas court may “infer that the federal claim was considered if the state court rejects a counterpart state claim and then cites to a case holding that the federal constitution provides no greater protection’). Even though the SJC did not cite Jackson, we have no qualms with its analysis in this respect. The SJC rehed on Massachusetts case law that has expressly adopted the federal constitutional standard in Jackson. See Commonwealth v. Latimore, 378 Mass. 671, 393 N.E.2d 370, 375 (1979); see also Leftwich, 532 F.3d at 24 (“Because the Latimore court adopted the governing federal constitutional standard as the Massachusetts standard for sufficiency of the evidence challenges, ... we can securely reason that in scouring the record for Latimore error and finding none the SJC effectively answered the federal constitutional question.”) (citations omitted). Further, in our inquiry” of objective unreasonableness the question “is not how well reasoned the state court decision is, but whether the outcome is reasonable.” Hurtado, 245 F.3d at 20. We note that just because an opinion is poorly reasoned does not “mean that the outcome represents an unreasonable application, although... it is certainly ground for further 29a inquiry if the state court ignores material facts.” Jd. (internal citation omitted). “It is not necessary that the federal court agree with every last detail of the state court’s analysis. By like token, state courts are not required to supply the specific reasons that a federal court thinks are most persuasive for upholding the judgment.” Healy, 453 F.3d at 28-29 (Ist Cir. 2006) (quoting Bui v. DiPaolo, 170 F.3d 232, 243 (1st Cir. 1999)). As a final note, we emphasize the great degree of deference state court judgments are due, especially those that uphold jury verdicts.FN1¢ FN16. For example, in Hurtado, we explained: [Als a general rule, federal courts should be particularly cautious about issuing habeas, on grounds of the objective unreasonableness of a state court’s conclusion that the evidence is sufficient, where there has been a verdict of guilt by a jury of a defendant’s peers, where the defendant’s credibility was evaluated by the jury hearing his testimony, where that verdict has been affirmed on appeal in the state system, and where there is no claim of constitutional error in_ the conduct of the tnal. Even on direct appeal, claims that the evidence was insufficient to support the verdict are “often made, but rarely successful.” 30a 245 F.3d at 19-20 (quoting United States v. Moran, 984 F.2d 1299, 1300 (1st Cir. 1993)). B. Applicable Law 1. The Jackson Standard Turning to the underlying constitutional right asserted here, O’Laughlin maintains that his due process nghts were violated because after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have identified him as the assailant beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. 2781 (“whether, after viewing the evidence in the hght most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”) (emphasis in original); United States v. Ayala, 289 F.3d 16, 25 (Ist Cir. 2002) (“Identification of the defendant as the person who committed the charged crime is always an essential element which the government must establish beyond a _ reasonable doubt.”) (quotation marks and citations omitted). “The Jucksoi standard 1s as easy to articulate as it is difficult to apply.” Newman ov. Metrish, 543 F.3d 793, 796 (6th Cir. 2008); see generally Hon. Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979 (1993) (discussing difficulty of defining term); Note, Reasonable Doubt: Az Argument Against Definition, 108 Harv. L. Rev. 1955 (1995) (same). 3la This is particularly the case where we have no eyewitness to identify the perpetrator. In cases based on circumstantial evidence such as the instant case,FN17 “we face head-on the disturbing truth that guilty verdicts rest on judgments about probabilities and those judgments are usually intuitive rather *301 than scientific.” Stewart v. Coalter, 48 F.3d 610, 614 (1st Cir. 1995). FN17. Like the SJC, we acknowledge that to pass constitutional muster, direct evidence of identification is not necessary. “Identification can _ be inferred from all the facts and circumstances that are in evidence.” Ayala, 289 F.3d at 25 (quotation marks and citations omitted). Despite the lack of precision in determining what constitutes reasonable doubt and the inherent difficulty in defining the term, this court and others have attempted to explicate the standard. For example, we have stated that “[g]uilt beyond a reasonable doubt cannot be premised on pure conjecture. But a conjecture consistent with the evidence becomes less and less a conjecture, and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely.” /d. at 615-16. As we have stated on multiple occasions, ‘{bleyond a reasonable doubt’ does not require the exclusion of every other hypothesis; it is enough that all ‘reasonable’ doubts be excluded.” /d. at 616 (quoting United States v. Oreto, 37 F.3d 739, 753 (lst Cir. 1994)); see also United States v. Dwinells, 32a 508 F.3d 63, 74 (Ist Cir. 2007); United States uv. Olbres, 61 F.3d 967, 976 (Ist Cir. 1995); United States v. Brown, 603 F.2d 1022, 1025 (1st Cir. 1979) (‘The prosecution may prove its case by circumstantial evidence, and it need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.”). We note that although the circumstantial evidence is permissible to discern the identity of the perpetrator, there are some limits to its probative value. “[A] reviewing court should not give credence to ‘evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative.” Leftwich, 532 F.3d at 23 (quoting United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)); see also United States v. Valerio, 48 F.3d 58, 64 (1st Cir. 1995) (“we are loath to stack inference upon inference in order to uphold the jury's verdict”). Further, fijf the evidence viewed in the lght most favorable to the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, this court must reverse the conviction. This is so because ... where an equal or nearly equal theory of guilt and a theory of imnocence is supported by the evidence viewed in the light most favorable to the prosecution, a reasonable jury must necessarily entertain a reasonable doubt. 33a United States v. Flores-Rivera, 56 F.3d 319, 323 (Ist Cir. 1995) (alterations, ellipses, and emphasis in original) (internal quotation marks omitted). Although we give great deference to jury verdicts, we have held that evidence may sometimes be insufficient to sustain a jury verdict of guilt beyond a reasonable doubt. See, e.g., United States v. Garcia-Torres, 280 F.3d 1, 6 (Ast Cir. 2002) (holding evidence insufficient to show proof beyond reasonable doubt that defendant knew he was aiding in drug conspiracy when participating in kidnapping and murder); United States v. Blasini-Lluberas, 169 F.3d 57, 62-64 (1st Cir. 1999) (holding evidence insufficient to support convictions of bank officer on four of five counts of misapplication of bank funds); United States uv. Morillo, 158 F.3d 18, 24 (Ist Cir. 1998) (holding evidence insufficient to support inference of knowledge of conspiracy’s purpose); United States v. Czubinshi, 106 F.3d 1069, 1073-74 (1st Cir. 1997) (holding evidence insufficient to show defendant intended to carry out a scheme to defraud the IRS under wire fraud statute); United States v. de la Cruz-Paulino, 61 F.3d 986, 1001 (1st Cir. 1995) (holding evidence insufficient to support conviction for aiding and abetting where prosecution failed to show defendant shared the specific intent of the principal); Valerio, 48 F.3d at 65 (holding evidence insufficient to support *302 a finding of intent to distribute cocaine). C. Analysis of the SJC Opinion As our sister court has noted, “{aJlthough circumstantial evidence alone can support a 34a conviction, there are times that it amounts to only a reasonable speculation and not to suffic.ent evidence.” Newman, 543 F.3d at 796. This is such a case. The instant facts may support a reasonable speculation that O’Laughlin was the assailant, but not sufficient evidence to establish his guilt. Taken together, the circumstantial evidence in this case, even when drawing all reasonable inferences in favor of the prosecution, does not permit any rational jury to conclude that O’Laughlin was the assailant beyond a reasonable doubt. Specificaliy, the evidence that O’Laughlin acted upon a financial motive to commit the attack is weak at best. A jury could permissibly conclude that he needed money to acquire crack cocaine, giving him reason to break into Mrs. Kotowski’s apartment, a person whom he knew had money. However, Mrs. Kotowski testified that nothing of value was taken and no items, not even expensive jewelry in plain view, were disturbed. The SJC accounted for this fact by stating that the jury could draw “a reasonable inference that the defendant was frightened off before he could steal anything when he heard the neighbor [Whittemore] speaking.” O’Laughlin IT, 843 N.E.2d at 627 n. 11. Even if the assailant deduced that the neighbor was calling the police in response to the attack,FN!8 no rational juror could conclude that the placement of this phone call frightened him off given the volume and duration of Mrs. Kotowski’s screams. Moreover, the assailant’s actions are inconsistent with O’Laughlin’s purported financial motive in view of the savage beating Mrs. Kotowski suffered 35a at the hands of the assailant, an attack involving at least fifteen to twenty blows that nearly broke every bone in her face and skull. If the assailant were motivated by money, a few blows to incapacitate her would have been sufficient. FN18. A reenactment demonstrated that the assailant would not have been able to make out that Whittemore was calling the police. With respect to the opportunity to commit the crime, O’Laughlin had a master key and there were no signs of forced entry; thus, one possible inference is that O’Laughlin used his master key to enter Mrs. Kotowski’s apartment. It is notable, however, that several others on the maintenance staff possessed a master key. Also, Mrs. Kotowski could have let someone familiar to her into the apartment. With respect to the means for the attack, a jury could permissibly find that the aluminum bat found in the woods was O’Laughlin’s bat given that his name was on the bat and that he admitted to owning the bat at one time. Yet, there was little evidence connecting the aluminum bat, a non- unique item in a residential complex, to the crime scene apart from the fact that it was found twenty- five yards from the _ residential complex the following day and the use of such an object was “consistent” with Mrs. Kotowski’s injuries.FN!9 Of course, any bat likely would have been consistent with her injuries. Also, Whittemore, a carpenter, testified that he heard “wood hitting wood,” as opposed to hearing the *303 sound of a hollow 36a aluminum bat, when he was’7 awakened. Furthermore, wooden bats were found in Mrs. Kotowski’s estranged husband’s garage. FN19. This is not to say that each of us is convinced that the state court’s decision is umnreasonable in every respect. But this case comes to us on arguments as presented by the parties. This panel may not be in complete unanimity in all particulars, but we do agree that the petitioner has the better of the argument with respect to the means_ evidence introduced by the prosecution at trial. We next turn to O’Laughlin’s consciousness of guilt, which the SJC considered the strongest evidence in favor of reinstating the conviction.N20 When viewed in context, this evidence is minimally probative on the question of whether O’Laughlin was the assailant. FN20. We compare itnfra_ the consciousness of guilt evidence in our case to that of Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005). In Juan H., the Ninth Circuit granted habeas rehef io a petitioner in part. because it viewed that any conclusion regarding the petitioner’s guilt based on the prosecution’s consciousness of guilt evidence amounted tv no more than “bare conjecture.” Jd. at 1277. 37a Notwithstanding the fact that it was just after 2:00 a.m., the SJC cited to O’Laughlin’s “uneasy and distant” demeanor and _ his unwillingness to look Officers Tierney and Skowron in the eye when they corfronted him just minutes after the attack. However, both officers, even though they were responding to reports of a possible assault, did not consider O’Laughlin’s behavior suspicious at the time. Indeed, they initially believed he was the reporting party and after asking him a few brief questions they left the area. Even the fact that O’Laughlin was only clad in boxers in near-freezing temperature did not give them pause after he explained to them that he was awakened by animal screams and had gone outside to place a stick in the dumpster, a fact Officer Tierney promptly verified. Also, the SJC explained that a jury could find it “implausik'e” that O’Laughlin would have gone outside without “putting on at least minimal clothing” if his true reason for going outside was to check for animals. Yet, Officer Tierney stated that O’Laughlin appeared unfazed by the cold and O’Laughlin’s alibi shows that he did not intend to stay outside for a very long time. The other consciousness of guilt evidence cited by the SJC-O’Laughlin’s reluctance to be interviewed by the police, the inconsistent versions of how he was awoken, his reaction to the neighbor’s report of an assault, the fact that he was agitated dunmng the interview, and his reaction when the police wanted to swab his closet door- while not helpful to his case, are not enough, even when considered in combination with other circumstantial evidence, to allow a jury to 38a permissibly conclude O’Laughlin’s guilt beyond a reasonable doubt. With respect to this evidence, the fact that O’Laughlin was reluctant to come down to the police station and displayed some agitation during the interview has minimal probative value in determining whether O’Laughlin was the assailant. Although this behavior could indicate consciousness of guilt for some crime, such as possessing crack cocaine (which the evidence shows he admitted to being concerned about), it is an impermissible inferential leap for a jury to find this behavior significantly probative of whether O’Laughlin committed such a brutal attack.’N2! Likewise, his indifferent reaction to his neighbor informing him of the attack the following morning may bear on whether he was a compassionate person, but has little probative value in assessing O’Laughlin’s guilt. FN21. This is not a case where the defendant stonewalled the police. He approached the police just minutes after the attack, he submitted to a ten- minute interview with the Chief of Police, and ultimately allowed the police to search his apartment. *304 Admittedly, the conflicting versions O’Laughlin gave the police as to how he was awoken and his reaction to the police’s request to swab his closet door when they were searching his home could be probative evidence’ linking O’Laughlin to the crime. However, in light of O’Laughlin’s concerns that the police would 39a discover his drug use, this evidence wes insufficient to serve as the primary basis upon which the jury could rely to conclude O’Laughlin’s guilt beyond a reasonable doubt. Lastly, the SJC cited bruises and marks on O’Laughlin’s face as evidence from which the jury could infer that an altercation occurred between O’Laughlin and Mrs. Kotowski. However, these bruises and marks have minimal, if any, probative force given the fact that they were not even noted by Officers Tierney and Skowron when they were responding to an assault just minutes after the attack. It bears repeating that the prosecution had to rely on circumstantial evidence because no physical or DNA evidence linked O’Laughlin to the attack despite the copious amount of blood at the crime scene. Considering the large amount of blood, it is difficult to fathom how O’Laughlin was able to avoid having any blood or other DNA evidence connect him to Mrs. Kotowski. Given the insufficiency of the evidence, circumstantial or otherwise, tying O’Laughlin to the attack, we conclude that a rational jury could not find O’Laughlin’s guilt beyond a reasonable doubt. D. Objectively Unreasonable Standard for Purposes of Habeas Review Although we have identified several gaps in the SJC’s analysis, we are mindful that on habeas review under AEDPA we are not permitted to grant a writ if we merely disagree with the jury verdict or if we identify an error in the SJC’s reasoning. The A0a relevant inquiry is whether the SJC was objectively unreasonable in upholding the conviction. We once again acknowledge the extremely high bar that must be overcome on habeas review to overturn a state court decision; however, that bar is not insurmountable and on rare occasions we have held a state court decision to be objectively unreasonable. See, e.g., White, 399 F.3d at 25 (holding on habeas review that state court unreasonably applied Supreme Court’s Confrontation Clause jurisprudence where state court barred petitioner from cross examining complainants regarding prior accusations). This court has identified certain guidelines that it finds useful in analyzing sufficiency claims on habeas review.*N22 In addition, we note that although we evaluate the state court decision in light of Supreme Court precedent, we are not precluded from looking at other federal court decisions that may help guide us in applying *305 the Jackson standard. Indeed, “ ‘[djecisions from the lower federal courts may help inform the AEDPA analysis to the extent that they state the clearly established federal law determined by the Supreme Court.’ “ Evans, 518 F.3d at 10 (alteration in original) (quoting Aspen v. Bissonnette, 480 F.3d 571, 574 n. 1 (Ast Cir. 2007)). This is especially true when “ ‘factually similar cases from the lower federal courts’ can ‘provid[e] a valuable reference point’ when considering the reasonableness of a state court’s application of Supreme Court precedent to a particular set of facts.” Id. (alteration in original) (quoting Rashad v. Walsh, 300 F.3d 27, 35 (ist Cir. 2002)). Under § 2254(d)()), 4la we are not constrained in our “ability to draw from any legal source in determining whether the state court’s decision rests on constitutional error or is an unreasonable application of Supreme Court precedent. [Section 2254(d)(1)] only limits the grounds on which habeas relief may be granted.” Id. F N22. These include: (1) The focus of the inquiry is on the state court decision: (2) Even with the deference due by statute to the state court's determinations, the federal habeas court must itself look to “the totality of the evidence” in evaluating the state court’s decision; (3) The failure of the state court to consider at all a key argument of the defendant may indicate that its conclusion is objectively unreasonable; however, the paucity of reasoning employed by the state court does not itself establish that its result is objectively unreasonable; (4) The failure of a state court to give appropriate weight to all of the evidence may mean _ that its conclusion is objectively unreasonable; and 42a (5) The absence of cases of conviction precisely parallel on their facts does not, by itself, establish objective unreasonableness. Hurtado, 245 F.3d at 18. With this in mind, we look to a recent case, Newman v. Metrish, where the Sixth Circuit held a state court ruling to be objectively unreasonable on grounds that the prosecution did not present sufficient evidence to support a prosecution for murder of a known drug dealer. 543 F.3d at 797. In Newman, the prosecution presented evidence at trial that the petitioner planned to rob drug dealers for drugs or money; that the victim was a known drug dealer who kept drugs in his freezer; that the petitioner and the victim were known to engage in drug transactions in the past; that the victim’s freezer was “open and empty” after he was killed; and that the petitioner had a motive for the killing because he had seen the victim “make a pass” at the petitioner’s girlfriend. Jd. at 794. Furthermore, the prosecution presented evidence supporting an inference that Newman had possessed and once purchased the murder weapon. /d. This evidence included forensic evidence and the fact that the petitioner's friend saw a gun similar to the murder weapon in the petitioner's home a few weeks prior to the murder. FN23 Jd. FN23. With respect to the murder weapon, the Newman court acknowledged that “the prosecution offered ample evidence to support an 43a inference that [the petitioner] had previously possessed at least one of the murder weapons.” Jd. at 795. However, it noted that “the prosecution did not offer any evidence that [the petitioner] had used or possessed the weapons on the day of the murder,” any “eyewitness testimony,” any “latent fingerprints from the crime scene or the items in the gym bag” in which the alleged murder weapon was found. /d. In analyzing the evidence under Jackson, the Newman court stated that even when “considerling] all of the evidence in the light most favorable to the prosecution, there remains reasonable doubt because we are hmited by what inferences reason will allow us to draw.” Id. at 797. It remarked that these hmitations included its ability to “infer only that [the petitioner] intended to rob a drug dealer and knew that [the victim] was a drug dealer, that a gun previously owned by [the petitioner] was used to kill [the victim], and that a similar looking gun was seen in ([fthe petitioner’s] home approximately two weeks before the murder.” Jd. The Newman court added that “even assuming that [the petitioner’s] gun was indeed the one used in the homicide, there was no evidence of what happened to it between that date and the date of the homicide, and we need not speculate as to what might have happened.” /d. The Newman court reasoned that while there was “a wealth of information showing that {the petitioner] owned the gun,” *306 “evidence placing 44a {the petitioner] at the scene” was “conspicuously absent.” Id. at 797. It pointed to the fact that there was no eyewitness testimony and the pclice did not recover any fingerprints from the crime scene. /d. The Newman court stated that “[w]ithout additional evidence placing [him] at the scene of the crime, there is only a reasonable speculation that [the petitioner} himself was present.” Jd. It concluded that “where the evidence taken in the light most favorable to the prosecution creates only a reasonable speculation that a defendant was present at the crime, there is insufficient evidence to satisfy the Jackson standard.” Id. Accordingly, the Newman court declared the state court rubng an unreasonable application of clearly established federal law. Jd. While Newman’s reasoning certainly does not control our analysis, it is significant that our sister court ruled a state court decision to be objectively unreasonable under Jackson on facts more probative of a petitioner’s guilt than what we have here. For example, O’Laughlin, lke the petitioner in Newman, was not connected to the crime scene by forensic evidence or eyewitness testimony; however, unlike the petitioner in Newman who had prior business dealings with the victim in that case, O’Laughlin had minimal contact with the victim apart from a few casual conversations and a maintenance call. Moreover, the petitioner’s robbery motive in Newman was consistent with the evidence-as the victim’s freezer, which was his storage place for drugs, was open and empty.FN24 In the instant case, however, O’Laughlin’s alleged motive of robbery to satisfy his need for crack cocaine docs not align with the fact 45a that nothing of value was taken from Mrs. Kotowski’s apartment or with how savagely she was beaten at the hands of her assailant. Lastly, in Newman, the petitioner owned a gun whose spent cartridges and bullets matched those found in the victim’s body. Here, the aluminum baseball bat that O’Laughlin owned was merely “consistent” with Mrs. Kotowski’s injuries, in the same way a metal pipe or some other long, sturdy object would be consistent with her injuries. FN24. Even if, in Newman, the petitioner's motive was anger because the victim had made a pass at the petitioner's girlfriend, the _ victim’s gunshot wound is not inconsistent with this motive. Another decision from a sister court also informs our analysis as to whether the SJC unreasonably applied the Jackson standard. In Juan H. v. Allen, the Ninth Circuit held that the state court decision was objectively unreasonable because there was insufficient evidence to conclude that a juvenile petitioner aided and abetted a principal in committing first-degree murder and first-degree attempted murder. 408 F.3d at 1278- 79. In Juan H., the state court had concluded that the petitioner had “manifested consciousness of guilt” because he fled from the crime scene; he attempted to leave his home with his family after the shooting; and he gave a false alibi to the police that he was in a trailer and not present during the shooting. Jd. at 1277. Also, as motive evidence, the 46a state court cited petitioner’s gang gestures towards the victim and the fact that the petitioner had punched the victim on a prior occasion. Id. With respect to the evidence of flight, the Juan H. court reasoned that “[nJo reasonable tner of fact could find evidence of criminal culpability in the decision of a teenager to run home from the scene of a shooting, regardless of whether the home was in the same general direction as the car of a fleeing suspect.” Jd. The Juan H. *307 court added that “[ljikewise, any rational factfinder would find little or no evidence of guilt in the fact that [the petitioner] attempted, along with the rest of his family, to leave his home as it was being surrounded by an angry mob of neighbors.” Jd. Regarding the false alibi, the Juan H. court remarked that it was “bare conjecture” to regard the petitioner’s untrue statements to the police as reflective of consciousness of guilt. Jd. The court explained that the petitioner “might have made a false statement to law enforcement for any number of reasons, especially given that any statements he made as a witness would likely be used to prosecute his older brother, a member of his immediate family.” Id. The Juan H. court stressed: “Although we must draw all reasonable inferences in favor of the prosecution, a ‘reasonable’ inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence.” Id. Finally, the Juan H. court stated that the prosecution’s motive evidence was mere conjecture, reasoning that the “interpersonal tensions” 47a between the petitioner and the victim “do not create a sufficiently strong inference of motive to allow a reasonable trier of fact to conclude beyond a reasonable doubt that [the petitioner} had reason to aid and abet first-degree murder.” /d. at 1278. The Juan AH. court maintained that “[s]peculation and conjecture cannot take the place of reasonable inferences and evidence-whether direct or circumstantial-that [the petitioner]- through both guilty mind and guilty act-acted in consort with [the principal].” /d. at 1279. Applying the Jackson standard to the state court decision, the Juan A. court ruled that “only speculation .. supports a conclusion” that the petitioner was guilty o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1150%3A1. Public record. Not legal advice.