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Smith v. Mitchell

October 29, 2010

SHIRLEY REE SMITH, PETITIONER-APPELLANT,
v.
GWENDOLYN MITCHELL, RESPONDENT-APPELLEE.



On Remand from the Supreme Court of the United States D.C. No. CV-01-04484-ABC.

Per curiam.

FOR PUBLICATION

Before: Harry Pregerson and William C. Canby, Jr., Circuit Judges, and Edward C. Reed, Jr., Senior District Judge.*fn1

OPINION

This case is before us on remand from the Supreme Court for the second time. We reiterate the facts and course of litigation very briefly; a fuller exposition may be found in our earlier opinions and orders that we cite here.

I.

Shirley Ree Smith was convicted in California state court of assault on a child resulting in death. The state court of appeal affirmed her conviction, and the California Supreme Court denied review. Smith then filed a federal habeas petition claiming that her conviction violated due process because the evidence was constitutionally insufficient. The district court denied the petition and Smith appealed. We reversed and directed issuance of the writ. Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006). We held that no rational trier of fact could have found beyond a reasonable doubt that Smith caused the child's death, and that the state court's affirmance of Smith's conviction was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979). Smith, 437 F.3d at 890.

The State's petition for panel and en banc rehearing was denied, Smith v. Mitchell, 453 F.3d 1203 (9th Cir. 2006), and the State filed a petition for certiorari in the Supreme Court. The Supreme Court granted certiorari, vacated our decision, and remanded for further consideration in light of its intervening decision in Carey v. Musladin, 127 S.Ct. 649 (2006). Patrick v. Smith, 127 S.Ct. 2126 (2007).

On remand, we held that Carey v. Musladin did not cast any doubt on our earlier conclusion that Smith's case fell squarely within Jackson, and that the state court's denial of her claim of constitutionally insufficient evidence was an unreasonable application of Jackson. 508 F.3d 1256, 1261. We also held that a later intervening Supreme Court decision in Schriro v. Landrigan, 127 S.Ct. 1933 (2007), did not affect our earlier result. Id. at 1260. We accordingly reinstated our previous opinion and judgment that a writ of habeas corpus must issue. Id. at 1261.

We subsequently denied the State's petition for panel and en banc rehearing, rejecting the State's contention that the Supreme Court's recent decision in Wright v. Van Patten, 128 S.Ct. 743 (2008), required us to reverse course.

The State once again petitioned for certiorari. The Supreme Court granted the writ, vacated our judgment, and remanded for further consideration in light of McDaniel v. Brown, 130 S.Ct. 665 (2010) ("Brown").

We have now examined Brown along with supplemental briefs from the parties addressing its potential effect on Smith's case. We conclude that nothing in Brown is inconsistent with our prior decision or our method of reaching it. We accordingly reinstate our former decision, reported at 437 F.3d 884.

II.

Brown involved a decision of this court that, like our decision in Smith, held that a state conviction failed to pass constitutional muster under the standard of Jackson v. ...


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