smithVmitchell - FOR PUBLICATION UNITED STATES COURT OF...

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT S HIRLEY R EE S MITH , No. 04-55831 Petitioner-Appellant, D.C. No. v. CV-01-04484-ABC G WENDOLYN M ITCHELL , OPINION Respondent-Appellee. On Remand from the Supreme Court of the United States Filed October 29, 2010 Before: Harry Pregerson and William C. Canby, Jr., Circuit Judges, and Edward C. Reed, Jr., Senior District Judge.* Per Curiam Opinion *The Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation. 17939
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COUNSEL Michael J. Brennan, Manhattan Beach, California, for the petitioner-appellant. Lawrence Daniels, Deputy Attorney General, Los Angeles, California, for the respondent-appellee. OPINION PER CURIAM: This case is before us on remand from the Supreme Court for the second time. We reiterate the facts and course of litiga- tion very briefly; a fuller exposition may be found in our ear- lier 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 17942 S MITH v. M ITCHELL
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Court denied review. Smith then filed a federal habeas peti- tion claiming that her conviction violated due process because the evidence was constitutionally insufficient. The district court denied the petition and Smith appealed. We reversed and directed issuance of the writ. Smith v. Mitchell , 437 F.3d 884 (9th Cir. 2006). We held that no rational trier of fact could have found beyond a reasonable doubt that Smith caused the child’s death, and that the state court’s affirmance of Smith’s conviction was an unreasonable application of Jackson v. Virginia , 443 U.S. 307 (1979). Smith , 437 F.3d at 890. The State’s petition for panel and en banc rehearing was denied, 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 interven- ing decision in Carey v. Musladin , 127 S. Ct. 649 (2006). Pat- rick 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
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This note was uploaded on 12/18/2010 for the course MGMT MGMT 201 taught by Professor Claper during the Winter '10 term at Embry-Riddle FL/AZ.

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smithVmitchell - FOR PUBLICATION UNITED STATES COURT OF...

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