PER CURIAM
MCDANIEL V. BROWN
558 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-559
E. K. McDANIEL, WARDEN, et al., PETITIONERS
v. TROY BROWN
on writ of certiorari to the united states court of
appeals for the ninth circuit
[January 11, 2010]
Per Curiam.
In
Jackson v.
Virginia,
443 U. S. 307 (1979), we
held that a state prisoner is entitled to habeas corpus relief if a
federal judge finds that “upon the record evidence adduced at the
trial no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.”
Id., at 324. A Nevada jury
convicted respondent of rape; the evidence presented included DNA
evidence matching respondent’s DNA profile. Nevertheless, relying
upon a report prepared by a DNA expert over 11 years after the
trial, the Federal District Court applied the
Jackson
standard and granted the writ. A divided Court of Appeals affirmed.
Brown v.
Farwell, 525 F. 3d 787 (CA9 2008).
We granted certiorari to consider whether those courts misapplied
Jackson. Because the trial record includes both the DNA
evidence and other convincing evidence of guilt, we conclude that
they clearly did.
I
Around 1 a.m. on January 29,
1994, 9-year-old Jane Doe was brutally raped in the bedroom of her
trailer. Respondent Troy Brown was convicted of the crime. During
and since his trial, respondent has steadfastly maintained his
innocence.[
Footnote 1] He was,
however, admittedly intoxicated when the crime occurred, and after
he awoke on the following morning he told a friend “ ‘he
wished that he could remember what did go on or what went
on.’ ” App. 309.
Troy and his brother Travis
resided near Jane Doe in the same trailer park. Their brother Trent
and his wife Raquel lived in the park as well, in a trailer across
the street from Jane Doe’s. Both Troy and Trent were acquainted
with Jane Doe’s family; Troy had visited Jane Doe’s trailer several
times. Jane did not know Travis. The evening of the attack, Jane’s
mother, Pam, took Jane to Raquel and Trent’s trailer to babysit
while the three adults went out for about an hour. Raquel and Trent
returned at about 7:30 p.m. and took Jane home at about 9:30 p.m.
Pam stayed out and ended up drinking and playing pool with Troy at
a nearby bar called the Peacock Lounge. Troy knew that Jane and her
4-year-old sister were home alone because he answered the phone at
the bar when Jane called for her mother earlier that evening.
Troy consumed at least 10 shots of vodka
followed by beer chasers, and was so drunk that he vomited on
himself while he was walking home after leaving the Peacock at
about 12:15 a.m. Jane called her mother to report the rape at
approximately 1 a.m. Although it would have taken a sober man less
than 15 minutes to walk home, Troy did not arrive at his trailer
until about 1:30 a.m. He was wearing dark jeans, a cowboy hat, a
black satin jacket, and boots. Two witnesses saw a man dressed in
dark jeans, a cowboy hat, and a black satin jacket stumbling in the
road between the two trailers shortly after 1 a.m.
The bedroom where the rape occurred was dark,
and Jane was unable to conclusively identify her assailant. When
asked whom he reminded her of, she mentioned both Troy and his
brother Trent. Several days after the rape, she identified a man
she saw on television (Troy) as her assailant but then stated that
the man who had sent flowers attacked her. It was Trent and Raquel
who had sent her flowers, not Troy. She was unable to identify Troy
as her assailant out of a photo lineup, and she could not identify
her assailant at trial. The night of the rape, however, she said
her attacker was wearing dark jeans, a black jacket with a zipper,
boots, and a watch. She also vividly remembered that the man “stunk
real, real bad” of “cologne, or some beer or puke or something.”
Id., at 172–173.
Some evidence besides Jane’s inconsistent
identification did not inculpate Troy. Jane testified that she
thought she had bitten her assailant, but Troy did not have any
bite marks on his hands when examined by a police officer
approximately four hours after the attack. Jane stated that her
assailant’s jacket had a zipper (Troy’s did not) and that he wore a
watch (Troy claimed he did not). Additionally, there was
conflicting testimony as to when Troy left the Peacock and when Pam
received Jane’s call reporting the rape. The witnesses who saw a
man stumbling between the two trailers reported a bright green logo
on the back of the jacket, but Troy’s jacket had a yellow and
orange logo. Finally, because Jane thought she had left a night
light on when she went to bed, the police suspected the assailant
had turned off the light. The only usable fingerprint taken from
the light did not match Troy’s and the police did not find Troy’s
fingerprints in the trailer.
Other physical evidence, however, pointed to
Troy. The police recovered semen from Jane’s underwear and from the
rape kit. The State’s expert, Renee Romero, tested the former and
determined that the DNA matched Troy’s and that the probability
another person from the general population would share the same DNA
(the “random match probability”) was only 1 in 3,000,000. Troy’s
counsel did not call his own DNA expert at trial, although he
consulted with an expert in advance who found no problems with
Romero’s test procedures. At some time before sentencing, Troy’s
family had additional DNA testing done. That testing showed semen
taken from the rape kit matched Troy’s DNA, with a random match
probability of 1 in 10,000.
The jury found Troy guilty of sexual assault
and sentenced him to life with the possibility of parole after 10
years.[
Footnote 2] On direct
appeal, the Nevada Supreme Court considered Troy’s claim that his
conviction was not supported by sufficient evidence, analyzing
“whether the jury, acting reasonably, could have been convinced of
[Troy’s] guilt beyond a reasonable doubt.”
Brown v.
Nevada, 113 Nev. 275, 285, 934 P. 2d 235, 241 (1997)
(per curiam). The court rejected the claim, summarizing
the evidence of guilt as follows:
“Testimony indicated that Troy left the bar around
12:15 a.m., that Troy lived relatively close to the bar, and that
Troy lived very close to Jane Doe. Troy had enough time to get from
the bar to Jane Doe’s house and to assault Jane Doe before she made
the telephone call to her mother at approximately 1:00 a.m. While
Jane Doe could not identify her assailant, her description of his
clothing was similar to what Troy was wearing; she also said that
her assailant smelled like beer or vomit and testimony indicated
that Troy had been drinking beer and had vomited several times that
night. Furthermore, testimony indicated that Troy got home at
approximately 1:30 a.m., which gave him enough time to assault Jane
Doe. Additionally, [witnesses] testified that they saw someone
resembling Troy in a black jacket and black hat stumbling in the
road near Jane Doe’s house at 1:05 a.m. Troy also washed his pants
and shirt when he got home, arguably to remove the blood evidence
from his clothes. Finally, the DNA evidence indicated that semen
collected from Jane Doe’s underwear matched Troy’s and that only 1
in 3,000,000 other people had matching DNA (the second DNA test
indicated that 1 in 10,000 people had matching DNA).”
Ibid., 934 P. 2d, at 241–242.
Respondent also argued on appeal that the trial
court erred in failing to conduct a pretrial hearing to determine
whether the DNA evidence was reliable. The court found respondent
had not raised this issue in the trial court and concluded there
was no plain error in the trial court’s failure to conduct a
hearing.
Id., at 284, 934 P. 2d, at 241.
In 2001, respondent sought state
postconviction relief, claiming,
inter alia, that his
trial counsel was constitutionally ineffective for failing to
object to the admission of the DNA evidence. He argued that there
were a number of foundational problems with the DNA evidence, and
that if trial counsel had objected, the evidence would have been
excluded or at least its importance diminished. He noted that
because trial counsel “totally failed to challenge the DNA evidence
in the case,” counsel “failed to preserve valid issues for appeal.”
App. 1101. The state postconviction court denied relief,
id., at 1489–1499, and the Nevada Supreme Court affirmed,
id., at 1500–1506.
Respondent thereafter filed this federal
habeas petition, claiming there was insufficient evidence to
convict him on the sexual assault charges and that the Nevada
Supreme Court’s rejection of his claim was both contrary to, and an
unreasonable application of,
Jackson. He did not bring a
typical
Jackson claim, however. Rather than argue that the
totality of the evidence admitted against him at trial was
constitutionally insufficient, he argued that some of the evidence
should be excluded from the
Jackson analysis. In
particular, he argued that Romero’s testimony related to the DNA
evidence was inaccurate and unreliable in two primary respects:
Romero mischaracterized the random match probability and misstated
the probability of a DNA match among his brothers. Absent that
testimony, he contended, there was insufficient evidence to convict
him.
In support of his claim regarding the accuracy
of Romero’s testimony, respondent submitted a report prepared by
Laurence Mueller, a professor in ecology and evolutionary biology
(Mueller Report). The District Court supplemented the record with
the Mueller Report, even though it was not presented to any state
court, because “the thesis of the report was argued during
post-conviction.”
Brown v.
Farwell, No.
3:03–cv–00712–PMP–VPC, 2006 WL 6181129, *5, n. 2 (Nev., Dec.
14, 2006).
Relying upon the Mueller Report, the District
Court set aside the “unreliable DNA testimony” and held that
without the DNA evidence “a reasonable doubt would exist in the
mind of any rational trier of fact.”
Id., at *7. The court
granted respondent habeas relief on his
Jackson
claim.[
Footnote 3]
The Ninth Circuit affirmed. 525 F. 3d
787. The court held the Nevada Supreme Court had unreasonably
applied
Jackson. 525 F. 3d, at 798; see 28 U.
S. C. §2254(d)(1). The Court of Appeals first reasoned “the
admission of Romero’s unreliable and misleading testimony violated
Troy’s due process rights,” so the District Court was correct to
exclude it. 525 F. 3d, at 797. It then “weighed the
sufficiency of the remaining evidence,” including the District
Court’s “catalogu[e] [of] the numerous inconsistencies that would
raise a reasonable doubt as to Troy’s guilt in the mind of any
rational juror.”
Ibid. In light of the “stark” conflicts
in the evidence and the State’s concession that there was
insufficient evidence absent the DNA evidence, the court held it
was objectively unreasonable for the Nevada Supreme Court to reject
respondent’s insufficiency-of-the-evidence claim.
Id., at
798.
We granted certiorari, 555 U. S. ___ (2009),
to consider two questions: the proper standard of review for a
Jackson claim on federal habeas, and whether such a claim
may rely upon evidence outside the trial record that goes to the
reliability of trial evidence.
II
Respondent’s claim has now
crystallized into a claim about the import of two specific
inaccuracies in the testimony related to the DNA evidence, as
indicated by the Mueller Report. The Mueller Report does not
challenge Romero’s qualifications as an expert or the validity of
any of the tests that she performed. Mueller instead contends that
Romero committed the so-called “prosecutor’s fallacy” and that she
underestimated the probability of a DNA match between respondent
and one of his brothers.
The prosecutor’s fallacy is the
assumption that the random match probability is the same as the
probability that the defendant was not the source of the DNA
sample. See Nat. Research Council, Comm. on DNA Forensic Science,
The Evaluation of Forensic DNA Evidence 133 (1996) (“Let P equal
the probability of a match, given the evidence genotype. The
fallacy is to say that P is also the probability that the DNA at
the crime scene came from someone other than the defendant”). In
other words, if a juror is told the probability a member of the
general population would share the same DNA is 1 in 10,000 (random
match probability), and he takes that to mean there is only a 1 in
10,000 chance that someone other than the defendant is the source
of the DNA found at the crime scene (source probability), then he
has succumbed to the prosecutor’s fallacy. It is further error to
equate source probability with probability of guilt, unless there
is no explanation other than guilt for a person to be the source of
crime-scene DNA. This faulty reasoning may result in an erroneous
statement that, based on a random match probability of 1 in 10,000,
there is a .01% chance the defendant is innocent or a 99.99% chance
the defendant is guilty.
The Mueller Report does not dispute Romero’s
opinion that only 1 in 3,000,000 people would have the same DNA
profile as the rapist. Mueller correctly points out, however, that
some of Romero’s testimony—as well as the prosecutor’s
argument—suggested that the evidence also established that there
was only a .000033% chance that respondent was innocent. The State
concedes as much. Brief for Petitioners 54. For example, the
prosecutor argued at closing the jury could be “99.999967 percent
sure” in this case. App. 730. And when the prosecutor asked Romero,
in a classic example of erroneously equating source probability
with random match probability, whether “it [would] be fair to say …
that the chances that the DNA found in the panties—the semen in the
panties—and the blood sample, the likelihood that it is not Troy
Brown would be .000033,”
id., at 460, Romero ultimately
agreed that it was “not inaccurate” to state it that way,
id., at 461–462.
Looking at Romero’s testimony as a whole,
though, she also indicated that she was merely accepting the
mathematical equivalence between 1 in 3,000,000 and the percentage
figure. At the end of the colloquy about percentages, she answered
affirmatively the court’s question whether the percentage was “the
same math just expressed differently.”
Id., at 462. She
pointed out that the probability a brother would match was greater
than the random match probability, which also indicated to the jury
that the random match probability is not the same as the likelihood
that someone other than Troy was the source of the DNA.
The Mueller Report identifies a second error
in Romero’s testimony: her estimate of the probability that one or
more of Troy’s brothers’ DNA would match. Romero testified there
was a 1 in 6,500 (or .02%) probability that one brother would share
the same DNA with another.
Id., at 469, 472. When asked
whether “that change[s] at all with two brothers,” she answered no.
Id., at 472. According to Mueller, Romero’s analysis was
misleading in two respects. First, she used an assumption regarding
the parents under which siblings have the lowest chance of matching
that is biologically possible, but even under this stingy
assumption she reported the chance of two brothers matching (1 in
6,500) as much lower than it is (1 in 1,024 under her assumption).
Second, using the assumptions Mueller finds more appropriate, the
probability of a single sibling matching respondent is 1 in 263,
the probability that among two brothers one or more would match is
1 in 132, and among four brothers it is 1 in 66.
Id., at
1583.
In sum, the two inaccuracies upon which this
case turns are testimony equating random match probability with
source probability, and an underestimate of the likelihood that one
of Troy’s brothers would also match the DNA left at the scene.
III
Although we granted certiorari to
review respondent’s
Jackson claim, the parties now agree
that the Court of Appeals’ resolution of his claim under
Jackson was in error. See Brief for Respondent 2–3; Reply
Brief for Petitioners 1. Indeed, respondent argues the Court of
Appeals did not decide his case under
Jackson at all, but
instead resolved the question whether admission of Romero’s
inaccurate testimony rendered his trial fundamentally unfair and
then applied
Jackson to determine whether that error was
harmless.
Although both petitioners and
respondent are now aligned on the same side of the questions
presented for our review, the case is not moot because “the parties
continue to seek different relief” from this Court.
Pacific
Bell Telephone Co. v.
linkLine Communications, Inc.,
555 U. S. ___, ___ (2009) (slip op., at 6). Respondent primarily
argues that we affirm on his proposed alternative ground or remand
to the Ninth Circuit for analysis of his due process claim under
the standard for harmless error of
Brecht v.
Abrahamson,
507 U. S. 619 (1993).
The State, on the other hand, asks us to reverse. Respondent and
one
amicus have also suggested that we dismiss the case as
improvidently granted, Brief for National Association of Criminal
Defense Lawyers as
Amicus Curiae 27–28, but we think
prudential concerns favor our review of the Court of Appeals’
application of
Jackson. Cf.
Pacific Bell,
supra, at ___ (slip op., at 7).
Respondent no longer argues it was proper for
the District Court to admit the Mueller Report for the purpose of
evaluating his
Jackson claim, Brief for Respondent 35, and
concedes the “purpose of a
Jackson analysis is to
determine whether the jury acted in a rational manner in returning
a guilty verdict based on the evidence before it, not whether
improper evidence violated due process,”
id., at 2. There
has been no suggestion that the evidence adduced at trial was
insufficient to convict unless some of it was excluded.
Respondent’s concession thus disposes of his
Jackson
claim. The concession is also clearly correct. An “appellate
court’s reversal for insufficiency of the evidence is in effect a
determination that the government’s case against the defendant was
so lacking that the trial court should have entered a judgment of
acquittal.”
Lockhart v.
Nelson,
488 U. S. 33, 39 (1988).
Because reversal for insufficiency of the evidence is equivalent to
a judgment of acquittal, such a reversal bars a retrial. See
Burks v.
United States,
437 U. S. 1, 18 (1978). To
“make the analogy complete” between a reversal for insufficiency of
the evidence and the trial court’s granting a judgment of
acquittal,
Lockhart, 488 U. S., at 42, “a reviewing court
must consider all of the evidence admitted by the trial court,”
regardless whether that evidence was admitted erroneously,
id., at 41.
Respondent therefore correctly concedes that a
reviewing court must consider all of the evidence admitted at trial
when considering a
Jackson claim. Even if we set that
concession aside, however, and assume that the Court of Appeals
could have considered the Mueller Report in the context of a
Jackson claim, the court made an egregious error in
concluding the Nevada Supreme Court’s rejection of respondent’s
insufficiency-of-the-evidence claim “involved an unreasonable
application of … clearly established Federal law,” 28 U. S. C.
§2254(d)(1).[
Footnote 4]
Even if the Court of Appeals could have
considered it, the Mueller Report provided no warrant for entirely
excluding the DNA evidence or Romero’s testimony from that court’s
consideration. The Report did not contest that the DNA evidence
matched Troy. That DNA evidence remains powerful inculpatory
evidence even though the State concedes Romero overstated its
probative value by failing to dispel the prosecutor’s fallacy. And
Mueller’s claim that Romero used faulty assumptions and
underestimated the probability of a DNA match between brothers
indicates that two experts do not agree with one another, not that
Romero’s estimates were unreliable.[
Footnote 5]
Mueller’s opinion that “the chance that among
four brothers one or more would match is 1 in 66,” App. 1583, is
substantially different from Romero’s estimate of a 1 in 6,500
chance that one brother would match. But even if Romero’s estimate
is wrong, our confidence in the jury verdict is not undermined.
First, the estimate that is more pertinent to this case is 1 in
132—the probability of a match among two brothers—because two of
Troy’s four brothers lived in Utah. Second, although Jane Doe
mentioned Trent as her assailant, and Travis lived in a nearby
trailer, the evidence indicates that both (unlike Troy) were sober
and went to bed early on the night of the crime. Even under
Mueller’s odds, a rational jury could consider the DNA evidence to
be powerful evidence of guilt.
Furthermore, the Court of Appeals’ discussion
of the non-DNA evidence departed from the deferential review that
Jackson and §2254(d)(1) demand. A federal habeas court can
only set aside a state-court decision as “an unreasonable
application of … clearly established Federal law,” §2254(d)(1), if
the state court’s application of that law is “objectively
unreasonable,”
Williams v.
Taylor,
529 U. S. 362, 409
(2000). And
Jackson requires a reviewing court to review
the evidence “in the light most favorable to the prosecution.” 443
U. S., at 319. Expressed more fully, this means a reviewing court
“faced with a record of historical facts that supports conflicting
inferences must presume—even if it does not affirmatively appear in
the record—that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.”
Id., at 326; see also
Schlup v.
Delo,
513 U. S. 298,
330 (1995) (“The
Jackson standard … looks to whether there
is sufficient evidence which, if credited, could support the
conviction”). The Court of Appeals acknowledged that it must review
the evidence in the light most favorable to the prosecution, but
the court’s recitation of inconsistencies in the testimony shows it
failed to do that.
For example, the court highlights conflicting
testimony regarding when Troy left the Peacock. 525 F. 3d, at
797. It is true that if a juror were to accept the testimony of one
bartender that Troy left the bar at 1:30 a.m., then Troy would have
left the bar after the attack occurred. Yet the jury could have
credited a different bartender’s testimony that Troy left the
Peacock at around 12:15 a.m. Resolving the conflict in favor of the
prosecution, the jury must have found that Troy left the bar in
time to be the assailant. It is undisputed that Troy washed his
clothes immediately upon returning home. The court notes this is
“plausibly consistent with him being the assailant” but also that
he provided an alternative reason for washing his clothes.
Ibid. Viewed in the light most favorable to the
prosecution, the evidence supports an inference that Troy washed
the clothes immediately to clean blood from them.
To be sure, the court’s
Jackson
analysis relied substantially upon a concession made by the State
in state postconviction proceedings that “absent the DNA findings,
there was insufficient evidence to convict [Troy] of the crime.”
App. 1180. But that concession posited a situation in which there
was no DNA evidence at all,[
Footnote 6] not a situation in which some pieces of
testimony regarding the DNA evidence were called into question. In
sum, the Court of Appeals’ analysis failed to preserve “the
factfinder’s role as weigher of the evidence” by reviewing “
all
of the evidence … in the light most favorable to the
prosecution,”
Jackson,
supra, at 319, and it
further erred in finding that the Nevada Supreme Court’s resolution
of the
Jackson claim was objectively unreasonable.
IV
Resolution of the
Jackson claim does not end our consideration of this case
because respondent asks us to affirm on an alternative ground. He
contends the two errors “in describing the statistical meaning” of
the DNA evidence rendered his trial fundamentally unfair and denied
him due process of law. Brief for Respondent 4. Because the Ninth
Circuit held that “the admission of Romero’s unreliable and
misleading testimony violated [respondent’s] due process rights,”
525 F. 3d, at 797, and in respondent’s view merely applied
Jackson (erroneously) to determine whether that error was
harmless, he asks us to affirm the judgment below on the basis of
what he calls his “DNA due process” claim, Brief for Respondent
35.
As respondent acknowledges, in
order to prevail on this claim, he would have to show that the
state court’s adjudication of the claim was “contrary to, or
involved an unreasonable application of, clearly established
Federal law.” 28 U. S. C. §2254(d)(1). The clearly established
law he points us to is
Manson v.
Brathwaite,
432 U. S. 98, 114 (1977), in which we
held that when the police have used a suggestive eyewitness
identification procedure, “reliability is the linchpin in
determining” whether an eyewitness identification may be
admissible, with reliability determined according to factors set
out in
Neil v.
Biggers,
409 U. S. 188 (1972).
Respondent argues that the admission of the inaccurate DNA
testimony violated
Brathwaite because the testimony was
“identification testimony,” 432 U. S., at 114, was “unnecessarily
suggestive,”
id., at 113, and was unreliable.
Respondent has forfeited this claim, which he
makes for the very first time in his brief on the merits in this
Court. Respondent did not present his new “DNA due process” claim
in his federal habeas petition, but instead consistently argued
that Romero’s testimony should be excluded from the
Jackson analysis simply because it was “unreliable” and
that the due process violation occurred because the remaining
evidence was insufficient to convict. See App. to Pet. for Cert.
157a (“[Respondent] asserts … that the DNA evidence was unreliable
and should not have been admitted at his trial. If so, then, … the
state presented insufficient evidence at trial to prove
[respondent] guilty”). In the Ninth Circuit, too, respondent
presented only his
Jackson claim,[
Footnote 7] and it is, at the least, unclear whether
respondent presented his newly minted due process claim in the
state courts.[
Footnote 8]
Recognizing that his
Jackson claim cannot prevail,
respondent tries to rewrite his federal habeas petition. His
attempt comes too late, however, and he cannot now start over.
* * *
We have stated before that “DNA
testing can provide powerful new evidence unlike anything known
before.”
District Attorney’s Office for Third Judicial
Dist. v.
Osborne, 557 U. S. ___, ___ (2009) (slip
op., at 8). Given the persuasiveness of such evidence in the eyes
of the jury, it is important that it be presented in a fair and
reliable manner. The State acknowledges that Romero committed the
prosecutor’s fallacy, Brief for Petitioners 54, and the Mueller
Report suggests that Romero’s testimony may have been inaccurate
regarding the likelihood of a match with one of respondent’s
brothers. Regardless, ample DNA and non-DNA evidence in the record
adduced at trial supported the jury’s guilty verdict under
Jackson, and we reject respondent’s last minute attempt to
recast his claim under
Brathwaite. The Court of Appeals
did not consider, however, the ineffective-assistance claims on
which the District Court also granted respondent habeas relief.
Accordingly, the judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Footnote 1
He denied involvement when a police
officer claimed (wrongly) that the police had found his
fingerprints in Jane’s bedroom, and he even denied involvement when
the sentencing judge told him that acceptance of responsibility
would garner him leniency.
Footnote 2
Under Nevada law at the time of the
trial, the jury, rather than the judge, imposed the sentence for a
sexual assault crime if it found the assault resulted in
substantial bodily harm. Nev. Rev. Stat. Ann. §200.366(3) (Michie
1992). For an assault resulting in substantial bodily harm, the
jury had the option of sentencing Troy to life without the
possibility of parole or to life with eligibility for parole after
10 years. §200.366(2)(a). The jury elected the more lenient
sentence. The judge sentenced Troy to life with the possibility of
parole after 10 years on a second count of sexual assault, to run
consecutively. The Nevada Supreme Court reversed Troy’s conviction
for one count of child abuse on double jeopardy grounds, and
ordered resentencing on the second sexual assault count. Brown
v.
Nevada, 113 Nev. 275, 934 P. 2d 235 (1997)
(per
curiam). On resentencing, the judge imposed the same sentence
as before.
Footnote 3
The District Court also granted habeas relief
on respondent’s claim that he was denied effective assistance of
counsel with respect to his attorney’s handling of the DNA evidence
and failure to adequately investigate the victim’s stepfather as an
alternative suspect.
Brown v.
Farwell, No.
3:03–cv–00712–PMP–VPC, 2006 WL 6181129, *9–*10 (Nev., Dec. 14,
2006). The Court of Appeals did not consider those claims on appeal
and they are not now before us.
Footnote 4
The Court of Appeals also clearly erred in
concluding the Nevada Supreme Court’s decision was “contrary to”
Jackson. The Court of Appeals held the Nevada Supreme
Court’s decision was “contrary to”
Jackson because the
Nevada court stated a standard that turns on a “reasonable” jury,
not a “rational” one, and that assesses whether the jury could have
been convinced of a defendant’s guilt, rather than whether it could
have been convinced of each element of the crime.
Brown v.
Farwell, 525 F. 3d 787, 794–795 (CA9 2008). It is of
little moment that the Nevada Supreme Court analyzed whether a
“reasonable” jury could be convinced of guilt beyond a reasonable
doubt, rather than asking whether a “rational” one could be
convinced of each element of guilt; a
reasonable jury
could hardly be convinced of guilt unless it found each element
satisfied beyond a reasonable doubt.
Footnote 5
The State has called our attention to cases
in which courts have criticized opinions rendered by Professor
Mueller in the past. See Brief for Petitioners 53–54. We need not
pass on the relative credibility of the two experts because even
assuming that Mueller’s estimate is correct, respondent’s claim
fails.
Footnote 6
The concession was made in the context of
proceedings in which respondent argued that competent counsel would
have objected to the admissibility of the DNA evidence on a number
of grounds—including Romero’s qualifications, chain-of-custody
problems, and failure to follow the proper testing protocol—and
might have successfully excluded the DNA evidence altogether. See
App. 1099–1100.
Footnote 7
The Court of Appeals did reason that Romero’s
testimony must be excluded from the
Jackson analysis on
due process grounds. 525 F. 3d, at 797. But that decision was
inextricably intertwined with the claim respondent did make in his
federal habeas petition under
Jackson. It is clear the
Ninth Circuit was never asked to consider—and did not pass upon—the
question whether the Nevada Supreme Court entered a decision on
direct appeal that was contrary to or an unreasonable application
of
Manson v.
Brathwaite, 432 U. S. 98 (1977), or any other
clearly established law regarding due process other than
Jackson.
Footnote 8
The State contends the claim is either not
exhausted or procedurally defaulted. The State has objected from
the beginning that respondent did not raise a due process claim
regarding the reliability of the DNA evidence in state court. See
App. to Pet. for Cert. 182a–183a. Respondent consistently answered
the State’s exhaustion objection by arguing he presented his
Jackson claim in the Nevada Supreme Court. See App.
1521–1526. The Ninth Circuit held respondent exhausted his
insufficiency claim. 525 F. 3d, at 793. The court had
no occasion to consider whether respondent exhausted any due
process claim other than his
Jackson claim.
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