Torres v. Lytle

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 12, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

LA YBE TO RR ES,

Petitioner - A ppellant,
v. No. 05-2103
RON LYTLE, W arden, Central New
M exico Correctional Facility;
A TTO RN EY G EN ER AL FO R THE
STA TE OF N EW M EX IC O,

Respondents - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. NO . CIV-02-1397 JH/LC S)

Susan Dunleavy, Federal Public Defender, Albuquerque, New M exico, for
Petitioner - A ppellant.

Steven S. Suttle, Assistant Attorney General (Patricia A. M adrid, Attorney
General, and Arthur W . Pepin, Assistant Attorney General, on the brief), Santa
Fe, New M exico, for Respondents - Appellees.

Before L UC ER O, HA RTZ, and M cCO NNELL, Circuit Judges.

HA RTZ, Circuit Judge.
 Laybe Torres was convicted in New M exico state court on February 4,

2002, on a charge of retaliating against a witness. He unsuccessfully appealed his

conviction in state court and has been denied habeas relief by the federal district

court. In our view, however, his conviction must be set aside. Although

M r. Torres indisputably committed a reprehensible act, the State failed to

introduce at trial sufficient evidence to establish an essential element of the

offense. W e therefore hold that he is entitled to a writ of habeas corpus.

In September 1997 Ralph M edina told law-enforcement authorities that he

suspected that Laybe Torres had burned down one of his houses on September 1

and that he had observed M r. Torres attempt to set fire to another of his houses on

September 15. M r. M edina received no response to the report of his suspicions

regarding the arson; but with respect to the attempted arson, M r. Torres was tried

and convicted on July 27, 1999, on a misdemeanor charge of criminal damage to

property. M r. M edina testified at the trial. A few weeks later M r M edina

received an unsigned threatening letter postmarked August 19, 1999. Based on

this letter M r. Torres was convicted of retaliating against M r. M edina for

reporting the arson, and was sentenced to seven years’ imprisonment. The statute

under which M r. Torres was convicted provides:

Retaliation against a witness consists of any person knowingly
engaging in conduct that causes bodily injury to another person or
damage to the tangible property of another person, or threatening to
do so, with the intent to retaliate against any person for any

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 information relating to the commission or possible commission of a
felony offense . . . .

N.M . Stat. Ann. § 30-24-3(B) (emphasis added). The issue before us is whether

the State produced sufficient evidence at trial to prove that M r. Torres’s letter (it

is now undisputed that M r. Torres was the author) was retaliation for

M r. M edina’s providing information relating to a felony. M r. Torres contends

that the evidence showed only retaliation for M r. M edina’s report and testimony

concerning the misdemeanor offense for which M r. Torres was convicted. W e

agree. Even applying the deferential standard of review mandated by the

Antiterrorism and Effective Death Penalty Act (AEDPA), see 28 U.S.C.

§ 2254(d), w e conclude that the evidence was not sufficient.

I. T RIA L

Only three witnesses were called at M r. Torres’s retaliation trial, all by the

State. M r. M edina testified that he had known M r. Torres his entire life, but “got

to know him a lot better from 1994 to 1997.” Tr. at 7. In 1997 their relationship

“started to change” after M r. M edina’s w ife Ruby asked M r. Torres and his

brother not to come by their home (w here they had a baby girl) late at night. Id.

at 7-8. In July 1997 M r. Torres had a confrontation with M rs. M edina “and he

left very angry.” Id. at 8. Then, on September 1, 1997, one of two houses

M r. M edina owned on a parcel of property in Cordova, New M exico, was

destroyed by fire. He reported to the fire marshal and the police that he suspected

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that M r. Torres had started the fire, but he did not receive any help from them.

On September 15, 1997, M r. M edina “decided to stake out the houses.” Id. at 11.

W hile doing so, he witnessed an attempted arson on the other house, id. at 10,

which he also reported to the police, again naming M r. Torres as a suspect.

M r. M edina further testified that he w as called as a witness at M r. Torres’s

trial for criminal damage to property and that M r. Torres was found guilty.

Shortly thereafter he received a threatening letter in the mail, postmarked

August 19, 1999, from Tierra Amarilla, New M exico. The two-page letter stated

(w ith asteriks to replace particularly offensive language):

Q-VO, ** RALPH! **, No Good **. Lying ** RAT!
You better get the ** out of Cordova! or else you know
what is going to happen to you! No Good **, **, **,
**, **, **, **.
SN M er

And leave my Ruby Alone! She doesn’t even like you!
She said that your **. Leave my Ruby Alone, Because
I”m going to ** if you don’t. I Am going to kill You!

Lieutenant
SN M er

R. Vol. I Doc. 10 Ex. E.

M r. M edina testified that he “knew that it had to be Laybe Torres” who had

sent the letter. Tr. at 14.

Q How did you reach that conclusion?

A W ell, this is how Laybe talks when he used to hang around my
house. This is the type of verbiage that he uses. The other

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 thing is that in 1997, he also called me a “rat”. He passed by
my house and he yelled out, “This is for you, Ralph, you
fucking rata. You’d better stop smearing my name.” So I
remember him calling me a rata. I don’t know anyone else in
Tierra A marilla w ho would have anything else against me. He
mentioned my name, my wife’s name, Ruby, and he is also
asking me to leave Cordova, so I felt in my heart that
whomever was burning my houses was trying to get me out of
Cordova.

Id. at 14-15. He also testified that during that year he had not been a witness “in

any other proceeding except in the Laybe Torres criminal damage and trespass

case,” id. at 15, and “had not had any confrontations with anyone else,” id. at 16.

On cross-examination M r. M edina was questioned again about why he

thought M r. Torres had written the letter:

Q The letter contains no signature from Laybe, does it?

A It does not contain a signature.

Q There is no mention of his name.

A There is no mention of his name.

Q No where in this letter does it mention any testimony from a
previous proceeding.

A No.

Q There is no mention of any events happening in 1997.

A That is correct.

Q There is no mention of a court proceeding happening in 1999
specifically.

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 A It doesn’t directly, but indirectly, as the victim in this case, I
can read between the lines.

Q But there is no—

A — everything that you have asked me is in there.

Q But nothing specific.

A Not specifically, but reading between the lines and in my heart
and what happened to me, it is clearly there.

Id. at 18.

M r. M edina was also cross-examined about the circumstances under which

he received the letter:

Q Now, lets talk about specifically what happened at the
M agistrate Court in August of 1999. You received this letter
shortly [sic] you testified in a criminal proceeding at
M agistrate C ourt in Rio Arriba County; is that correct?

A Yes.

Q And that court proceeding involved a misdemeanor charge of
criminal damage to property; is that correct?

A Yes.

Q A misdemeanor charge for which you testified and for which
M r. Torres w as convicted; is that correct?

A Yes.

Q That was a misdemeanor criminal damage to property charge;
is that correct?

A I am not very sure because I am not an attorney, but I believe
that is what it was?

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Id. at 19.

On redirect examination M r. M edina was asked:

Q Can you describe to this jury what you meant by saying,
reading between the lines?

A W ell, I had just been in court with [M r. Torres] a few weeks
before and this says that the return address is to Ralph M edina
and Ralph M edina is the person it was sent to and it came from
Tierra Amarilla. The guy calls me a “rata”. He had called me
that before. He had a confrontation with my wife because I
heard it and then my wife told him that she w as going to---

[Defense Counsel]: Objection.

[Prosecutor]: Don’t tell us what your wife said.

Q ([Prosecutor]) Please continue

A (The W itness) Okay. This person here in this letter wants me
to get out of town, and then when I think about the fact that
my house was burned down more than once, and because I
believe that that criminal damage to property was not the
whole story, I believe that that house was intended to be
burned because I testified that Laybe had a container of some
kind in his hands. He wants me to get out of town and he is
going to kill me; I felt very intimidated all through this. So,
that is what I meant. I just know in my heart that it was him.

Id. at 20-21.

The State’s second witness was former state police officer Chris Sanchez,

who testified about the investigation conducted after he received the letter from

M r. M edina. M r. M edina had brought him the letter and told him that he thought

that M r. Torres had written it.

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 Q Did he indicate to you why he believed that Laybe Torres was
a suspect?

A He had an altercation with M r. Torres in the past where he was
a suspect in an arson to his house.

Id. at 23. M r. Sanchez also testified that M r. Torres had been incarcerated at the

Tierra Amarilla jail on the date the letter was sent, and that the meter stamp on

the letter was “from the County Clerk’s office.” Id. at 24. He explained: “If an

inmate at the jail does not have the money to purchase postage, the County

provides postage for them, that is why they send all of the mail down through the

County Clerk’s office, and it is run through their meter.” Id. He obtained a

sample of M r. Torres’s handwriting and sent the sample and the threatening letter

for analysis. He also testified that he did not have any contact with M r. Torres,

but “knew that M r. Torres was a suspect in the arson.” Id. at 26.

The State’s final witness was a handwriting expert who testified that

M r. Torres had written the threatening letter. His testimony is not relevant to this

appeal. Although M r. Torres’s authorship was heavily contested at trial, he no

longer disputes writing the letter. N o other w itnesses testified.

The jury was instructed that to find M r. Torres guilty the State had to prove

beyond a reasonable doubt that he acted “with the intent to retaliate against Ralph

M edina for providing any information to a law enforcement officer to the

commission or possible commission of Arson.” R. Vol. I Doc. 13 Ex. A

(Instruction 3). The third element in the jury instruction on arson stated, “This

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happened in New M exico on or about the 1 st of September, 1997.” Id.

(Instruction 4). The jury returned a guilty verdict, and M r. Torres was sentenced

to seven years’ imprisonment. (W e note that this was the second jury to find

M r. Torres guilty. The first conviction was overturned on appeal because

evidence was improperly admitted. See State v. Torres, Case No. 21,920 (N .M .

Ct. App. July 23, 2001). Testimony from the first trial referred to in the State’s

brief is irrelevant to this case.)

II. PO STC ON VIC TIO N PR OC EED IN GS

M r. Torres appealed the conviction to the New M exico Court of Appeals

(N M CA). The appeal was handled on that court’s summary calendar, which is

described in Docketing and Calendaring, available at http://coa.nmcourts.com/

courtinfo/sumryart.pdf. To summarize the calendar process, shortly after filing

the notice of appeal the appellant submits to the court a docketing statement,

which should set forth the procedural background of the case, the issues being

raised on appeal, a list of pertinent legal authority (w ithout argument), and a fair

presentation of the pertinent evidence and proceedings below. A judge of the

court, with assistance from staff attorneys, then review s the docketing statement,

together with the pleadings filed in the trial court, and decides whether (1) to set

the case on the “general calendar” for submission of the record, full briefing, and

oral argument, or (2) to attempt to dispose of the appeal on the summary calendar.

If the second choice is selected, the judge, again with staff assistance, will send

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the parties a “calendar notice” that sets forth a proposed disposition of each of the

issues raised on appeal. Both parties are given an opportunity to respond, by

providing legal argument and presenting factual information omitted or

incorrectly stated in the calendar notice. The party prevailing on an issue,

however, ordinarily does not submit a response on the issue. (One virtue of this

system is that a prevailing appellee may not need to file anything with the court.)

After reviewing the response, if any, the court may set the case on the general

calendar (as, for example, when the parties dispute what the evidence was

concerning a material issue); send out a further calendar notice refining or

modifying the reasoning and conclusions in the previous notice; or, if it is

convinced that the prior calendar notice was correct, file an opinion conforming

to the prior notice. The process may go through several iterations, although it is

rare for the court to issue more than three calendar notices. The court will not

issue an opinion on the summary calendar that resolves an issue contrary to the

most recent calendar notice.

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 M r. Torres’s docketing statement raised two issues, one of which was

whether the evidence was sufficient to support the verdict. 1 The docketing

1
The other issue raised, which is not raised on this appeal, was whether the
district court erred in denying Mr. Torres’s posttrial motion for a directed verdict
“based upon the fact that the statute requires that the alleged retaliation be based on the
commission or possible commission of a felony offense.” R. Doc. 10 Ex. C at 6. The
docketing statement states that Mr. Torres argued to the trial court that

it was necessary for the State to prove that the Defendant had retaliated
against Ralph Medina for the commission or possible commission of a
felony. The Defendant argued that by Mr. Medina’s own testimony, the
Defendant was retaliating against him for his testimony in Rio Arriba
Magistrate Court, concerning the misdemeanor charge of Criminal
Damage to Property . . . . The Defendant argued that there existed no
felony upon which the charges could be based. More specifically, the
Defendant argued that the State had failed to establish sufficient proof of
a nexus between the uncharged crimes which Medina suspected the
Defendant to have committed on September 1, 1997 and the letter written
in July 1999. . . . There was no testimony at trial by law enforcement as
to any possible felony for which the Defendant was being investigated or
charged. . . . Accordingly, the Defense argued that there was no evidence
that the letter was sent for any other reason than Medina’s testimony at
[the misdemeanor] trial.

Id. at 5. The calendar notice proposing summary affirmance agreed with Mr. Torres
“that an essential element of the crime of retaliation against a witness is that the
retaliation must be threatened for ‘information relating to the commission or possible
commission of a felony offense,’” id. Ex. D at 2, but noted that the jury had been
required to make such a finding. To the extent that Mr. Torres argued that “he could
not be convicted of retaliating against a witness as a matter of law because he was
never charged with a felony offense” the calendar notice disagreed. Id. at 2 (citing
State v. Perea, 992 P.2d 276 (N.M. Ct. App. 1999). In its opinion resolving the appeal,
the court stated, “Defendant argues there was no evidence that he was ever investigated,
tried, or convicted of a felony offense. There is no such requirement. The requirement
is that the witness informed authorities about the possible commission of a felony
offense.” Id. Ex. F at 1 (internal citations omitted).

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statement sets forth the evidence at trial in four paragraphs:

Essentially, the facts of this case, as set forth at trial, are as
follow s: Ralph M edina testified that on September 1, 1997, a house
belonging to him was destroyed by fire. Although M edina testified
that he suspected that the Defendant had started the fire, the
Defendant Laybe Torres was never charged with any crime, nor was
evidence presented that he was a suspect, concerning this September
1, 1997 incident. M edina further testified that on September 15,
1997 someone attempted to burn a second house which belonged to
him. As a result of the September 15, 1997 incident, and the
resulting damage, the Defendant was charged in Rio Arriba County
M agistrate C ourt with one (1) count of Criminal Damage to Property
under $1,000, a misdemeanor. No felony charges were ever filed
against the Defendant concerning either of these incidents, nor was it
ever established at this trial that the Defendant was a suspect in any
felony investigation as a result of either incident. On July 27, 1999,
the Defendant was convicted in Rio Arriba M agistrate Court for the
misdemeanor crime of Criminal Damage to Property, under
$1000.00, for damages he caused to M edina’s property on September
15, 1997.

On or about August 19, 1999, following the M agistrate Court
trial and conviction, Ralph M edina received a letter which contained,
among other insults and derogatory language, a death threat. The
letter was unsigned. The envelope in which this letter was sent was
post-marked July 29, 1999 from Tierra Amarilla, New M exico. Upon
receipt of this letter, Ralph M edina reported to the State Police he
was being threatened by the Defendant Laybe Torres. M edina
reported to the police that the letter was threatening him for “stuff”
in the past. M edina went on to report that he felt that the letter was
sent to him in retaliation for his testimony against the Defendant in a
previous case, for w hich M r. Torres was convicted and incarcerated.
No evidence was presented at trial that M edina had testified against
the Defendant in any other judicial proceeding except the M agistrate
Court trial.

It should be noted that at trial there was no testimony as to any
threatening behavior by the Defendant towards M edina from the date
of the second incident on September 15, 1997 until after the Rio
Arriba M agistrate Court trial on July 27, 1999, a period of time of

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 almost two (2) years. Furthermore, M edina was unaware of any
other proceedings against the D efendant and did not testify against
the Defendant in any other proceeding prior to the Rio Arriba
M agistrate Court trial on July 27, 1999.

...

At trial the State called two (2) witnesses in their case against
the Defendant Laybe Torres. M ost important to this appeal was
Ralph M edina, the recipient of the letter which is alleged to have
been written by M r. Torres, as well as the victim of the single count
of Criminal Damage to Property under $1000.00, for which the
Defendant was convicted in M agistrate Court. M edina confirmed
that he had indeed received the letter following the M agistrate Court
trial and felt the letter was in retaliation for his testimony at this
trial. M edina made no other mention of threatening or retaliatory
behavior prior to the receipt of the letter following the M agistrate
Court trial. The State did not call any law enforcement officers as
witnesses at trial. The only other witness for the State was a hand
writing expert.

R. Doc. 10 Ex. C at 2-4. 2

The calendar notice proposed affirmance on the insufficient-evidence

claim, explaining:

It appears M edina testified that he told law enforcement
officers that he believed Defendant was responsible for burning one
house that belonged to M edina on September 1, 1997, and for
attempting to set fire to a second dwelling, also belonging to M edina,
on September 15, 1997. It further appears there was evidence that
Defendant sent M edina a letter threatening M edina with death. W e
propose to hold that this evidence was sufficient to convict
Defendant. W e propose to infer that the jury could have determined

2
Mr. Torres’s docketing statement is inaccurate in several respects. For example,
it states that “the State called two (2) witnesses in their case against the Defendant
Laybe Torres,” R. Doc. 10 Ex. C at 4, and that “[t]he State did not call any law
enforcement officers as witnesses at trial,” id. But, as noted above, three witnesses
were called, one of whom was a former law-enforcement officer.

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 from reading the letter that Defendant intended to retaliate against
M edina for giving information relating to the burning of the first
house. . . .

It appears M edina testified that he thought the letter was in
retaliation for his testimony in Defendant’s misdemeanor trial. W e
propose to hold the jury could decide for itself what Defendant
intended by the letter and was not limited to M edina’s interpretation.

Id. Ex. D at 4-5 (internal citations omitted).

M r. Torres submitted a response to the proposed disposition, again

contending that all the evidence at trial indicated that the letter was motivated by

M r. M edina’s testimony at the misdemeanor property-damage trial, which resulted

from the September 15 attempted arson, and that “the State had failed to establish

any relationship between the arson that M edina suspected M r. Torres to have

comm itted on September 1, 1997, and the retaliatory letter that M edina received

on August 19, 1999.” Id. Ex. E at 3. The threatening letter was attached to this

response. The court rejected the argument and affirmed the conviction. The New

M exico Supreme Court denied M r. Torres’s petition for a writ of certiorari.

On November 5, 2002, M r. Torres filed in the U nited States D istrict Court

for the District of New M exico an application for habeas corpus relief under 28

U.S.C. § 2254, again contending that there was insufficient evidence to sustain

his conviction. In a recommended disposition, a magistrate judge determined that

the N ew M exico Court of A ppeals had addressed this issue on the merits,

mandating that the deferential standard of review set forth in AEDPA be applied,

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see 28 U.S.C. § 2254(d), and concluded that the NM CA’s “determination of the

sufficiency of the evidence was not objectively unreasonable.” R. Doc. 14 at 7.

The district court issued an order adopting the magistrate judge’s

recommendation. M r. Torres filed a notice of appeal and we granted a certificate

of appealability (COA). See 28 U.S.C. § 2253(c) (requiring § 2254 applicant to

obtain COA to pursue appeal).

On appeal we noted that because the case was decided on the N M CA’s

summary calendar, no review of the trial record had taken place and the only facts

in the record before us were those in M r. Torres’s docketing statement and

subsequent pleadings. As the record then stood, we were not convinced that the

conviction was supported by sufficient evidence. W e stated:

[N]one of the evidence presented at trial . . . points toward retaliation
for the 1997 arson report (as opposed to the 1999 property damage
testimony). Indeed, according to M r. Torres, there was no evidence
that he even knew about that report. The threatening letter itself
seems at least partially motivated by a quarrel over a woman named
Ruby, and even to the extent it does seem to be in retaliation for
giving information, it makes no reference to the September 1 arson
report. It was sent two days after M r. M edina’s testimony in the
misdemeanor trial involving the September 15 incident, and about
two years after M r. M edina’s report to the police regarding the
September 1 alleged arson. Furthermore, M r. M edina admitted that
in the two years between his arson report and his testimony in the
misdemeanor trial, M r. Torres took no retaliatory action against him.
Indeed, M r. M edina testified that he believed the letter w as sent in
retaliation for his testimony at the misdemeanor trial. The timing of
the letter tends to confirm that theory.

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Id. at 290-91. W e concluded that “[t]he only way to tell whether there was

evidence before the jury suggesting that M r. Torres knew about the 1997 arson

report is to do what no reviewing court to date has done: review the actual record

from the retaliation trial.” Id. at 291-92. W e therefore vacated the district court’s

order and remanded for further consideration.

On remand the magistrate judge reviewed the transcript of M r. Torres’s

trial and again recommended, under AEDPA ’s deferential standard, that the

habeas application be denied. The district court adopted the magistrate’s

recommendation, and also denied a CO A. M r. Torres again requests a COA from

this court. W e grant it, 3 and hold that, even under AEDPA ’s deferential standard,

the habeas application should be granted.

III. D ISC USSIO N

A. Standard of Review

AEDPA provides:

3
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id. As we conclude that M r. Torres is correct on the
merits of this appeal, it is obvious that he has met the lesser showing necessary to
obtain a COA.

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 An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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).

Under the “contrary to” clause, we grant relief only “if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the Court has on a set of materially indistinguishable facts.”
Under the “unreasonable application” clause, relief is provided only
“if the state court identifies the correct governing legal principle
from the Supreme Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.”

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal brackets

omitted) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). W hen the claim

was not decided on the merits by the state court, and it is not procedurally barred,

we address it de novo. Id. at 1196.

In our prior order remanding this case to the district court, we held that

AEDPA required deference to the NM CA decision. And because the issue of

sufficient evidence “was primarily a legal one[,] . . . the appropriate standard of

deference forbids us from granting relief unless the NM CA’s adjudication

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‘resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.’” Torres v. Lytle, 90 F. App’x 288, 290 n.1 (10th Cir.

2004) (quoting 28 U.S.C. § 2254(d)(1)). M r. Torres contends that we should not

apply that deferential standard on this appeal “because the NM CA addressed a

different question [from] the one now before this Court. The NM CA determined

whether the docketing statement contained sufficient evidence; this Court must

decide whether the trial transcript, which the NM CA never reviewed, . . . contains

sufficient evidence.” Aplt. Br. at 21-22. The State counters that the law-of-the-

case doctrine should apply, because a panel of this court has already determined

that the insufficient-evidence claim was addressed on the merits by the NM CA

and that our standard of review must therefore be deferential.

There is some truth in both positions. To the extent that we limit our

review to the facts as presented to the NM CA, we must grant AEDPA deference

to that court’s decision. But when we consider any additional material facts from

the trial transcript that were not placed before the NM CA, we should not defer.

W e have held that after a federal-court evidentiary hearing, we no longer defer to

the state court’s decision. See Bryan v. M ullin, 335 F.3d 1207, 1215-16 (10th Cir.

2003) (en banc) (declining to apply AEDPA deference after federal district court

evidentiary hearing when state court had denied evidentiary hearing). After all,

when new evidence is produced during federal habeas proceedings, what the state

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court decided (the merits of a legal issue based on the factual record before it) is

different from what the federal court must decide (the merits of the same legal

issue but based on a materially different factual record). In this case, the factual

record before the state appellate court consisted of the representations made by

M r. Torres in his docketing statement and subsequent appellate pleadings.

Although ordinarily we would review M r. Torres’s habeas claim on that same

record and give the state court’s ruling the usual AEDPA deference, we are now

considering the trial transcript, which was not presented to the NM CA.

A ccordingly, w e may not be deciding the same legal issue decided by the NM C A,

at least if the trial transcript provides substantial evidence not in M r. Torres’s

pleadings with the NM CA; and in that circumstance AEDPA deference would be

inappropriate. In sum, by remanding to the district court for consideration of the

trial transcript, we created the possibility that new evidence would be presented

that was not before the NM CA. This new evidence could change the legal issue

presented to us in this second appeal; and, although we applied AEDPA deference

on the first appeal, it is not clear that w e should continue to apply it now.

W e emphasize that our manner of proceeding has neither prejudiced the

State nor failed to show the respect we owe to a state court. As our opinion in

M r. Torres’s first appeal strongly suggested, we could have decided that the

NM CA’s decision was not reasonable based on the record before that court and

granted M r. Torres habeas relief. By remanding to the district court for

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consideration of the trial transcript, we gave the State an additional opportunity to

show that M r. Torres had been properly convicted, if it could point to previously

unconsidered trial evidence of guilt. Such “new” evidence, however, would not

have been considered by the NM CA, so we could not know how that court would

have evaluated it. W e would be deciding a different sufficiency-of-the-evidence

issue from what the NM CA decided, so AEDPA deference would be

inappropriate.

Nor was the remand unfair to M r. Torres. It was an appropriate step

because under New M exico’s unique calendaring system, the State could not have

been expected to supplement the state appellate record with trial evidence

supporting the verdict that may have been omitted from M r. Torres’s docketing

statement. So long as the NM CA’s calendar notices w ere indicating that it would

affirm the conviction, there was no reason for the State’s attorneys to pay

significant attention to the appeal, much less file pleadings suggesting that its

position was even stronger than the court thought. There would be plenty of time

and opportunity to present its best case if the court set the appeal on the general

calendar for full briefing and oral argument or issued a calendar notice proposing

reversal. Our remand thus gave the State its first true opportunity to point to trial

evidence of M r. Torres’s guilt not presented to the NM CA.

In any event, after reviewing the trial transcript we conclude that it adds

nothing of significance to M r. Torres’s docketing statement. W e are therefore

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deciding the same issue as that decided by the NM CA and give AEDPA deference

to the state court’s decision.

The Supreme Court has stated that evidence of guilt is sufficient if

“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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under

AEDPA , when we review a state-court adjudication of a legal issue, we decide

whether the state court unreasonably applied “clearly established Federal law, as

determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The issue before us,

then, is whether the NM CA reasonably decided that a “rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319. On M r. Torres’s first appeal we described this

evaluation of what a reasonable jurist could have decided about a reasonable juror

as “deference squared,” Torres, 90 F. App’x. at 290.

B. M erits

Even under AEDPA ’s exponential deference, we conclude that the evidence

was not sufficient to convict M r. Torres of retaliating against M r. M edina for

reporting the September 1, 1997, arson. First, as we stated on the first appeal,

“there was no evidence that [M r. Torres] even knew about that report.” Id.

M r. M edina testified that he reported the September 1 incident, but that he did not

receive any help from the authorities. No evidence was presented to the jury that

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M r. Torres was ever questioned by the police about the incident, or that

M r. M edina told M r. Torres that he had reported the incident to the police.

To be sure, M r. Torres may have learned during the misdemeanor property-

damage trial about such a report. In the prior appeal the State asserted the

“‘critical fact’” that the letter was sent “‘just two days after Torres heard M edina

testify under oath that he told police he believed M edina was responsible for the

September 1, 1997, arson.’” Id. at 291. At that time w e stated: “If the jury heard

evidence that M r. Torres discovered the arson report at the misdemeanor trial or

in preparation for it, there would be sufficient evidence to sustain the jury’s

verdict. But we see no evidence in this record for the [State’s] ‘critical fact.’”

Id. The trial transcript confirms that this “critical fact” w as not made known to

the jury at the second retaliation trial.

Apparently conceding its error, the State does not repeat that argument on

this appeal. Instead, it argues that “[i]t is reasonable to infer from [M r. M edina’s]

testimony to the felony jury that he also testified similarly before the

misdemeanor jury, to explain why he was watching his second house on the night

he w itnessed Torres commit the criminal damage.” Aplee. Br. at 29. But there

was no evidentiary basis for such an inference. As we said in United States v.

Jones, 44 F.3d 860, 865 (10th Cir. 1995):

W hile the jury may draw reasonable inferences from direct or
circumstantial evidence, an inference must be more than speculation
and conjecture to be reasonable . . . . A jury will not be allowed to

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 engage in a degree of speculation and conjecture that renders its
finding a guess or mere possibility. Such an inference is infirm
because it is not based on the evidence.

(internal quotation marks, citations, and brackets omitted)).

The State also notes that M r. M edina testified that in 1997 M r. Torres

“passed by my house and he yelled out, ‘This is for you, Ralph, you fucking rata.

You’d better stop smearing my name.’” Tr. at 15. But we fail to see how this

outburst could show that M r. Torres knew that M r. M edina had accused him of

the September 1 arson, particularly when the outburst can be fully explained by

the report of the September 15 incident; and the record does not even show that

the outburst occurred after September 1.

Nor does the letter itself suggest that the threat was based on M r. M edina’s

report of the September 1 arson. As we noted in our prior decision, the “letter

itself seems at least partially motivated by a quarrel over a woman named Ruby,

and even to the extent it does seem to be in retaliation for giving information, it

makes no reference to the September 1 arson report.” Torres, 90 F. App’x at 290.

The timing of the letter— shortly after M r. M edina testified at the misdemeanor

trial, and two years after M r. M edina had reported the arson (without there having

been any suggestion of retaliation for almost two years)— further undermines any

claim that a juror could reasonably infer, in the absence of any supporting

evidence, that the letter was retaliation for the arson report. In rejecting

M r. Torres’s appeal, the NM CA stated: “W e asked for a copy of the letter to

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determine if the wording of the letter made it clear that retaliation was threatened

only for M edina’s testimony at Defendant’s misdemeanor hearing. The letter

contains no such restriction.” R. Doc. 10 Ex. F at 2-3. This statement is, to say

the least, puzzling. The prosecution cannot establish the existence of an element

of an offense by merely pointing to the defendant’s failure to produce evidence of

its nonexistence.

Finally, not even M r. M edina stated that the letter was sent in retaliation

for his report of the September 1 arson. To the extent that he imputed any motive

to M r. Torres in sending the letter, it was that it was sent in retaliation for his

testim ony at the misdemeanor trial. M r. Torres pointed this out to the NM CA,

which responded that “[t]he jury did not have to accept M edina’s evaluation of

the situation . . . . It was the jury’s job to consider all of the evidence, including

evidence that M edina had told police he thought Defendant burned down

M edina’s house, and the threatening letter itself . . . , and decide what the facts

were.” Id. Ex. F at 2 (internal citation omitted). But M r. M edina’s report to the

police is irrelevant in the absence of evidence that M r. Torres was aware of it.

And, as already noted, the letter itself contains no information that could lead a

jury to infer that it was sent in retaliation for the arson report of nearly two years

before. As stated in our prior order, “W e do not dispute that the jury could

disagree with M r. M edina’s explanation, but it could do so only on the basis of

evidence.” Torres, 90 F. App’x at 291. M r. M edina’s vague testimony that “I

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believe the criminal damage to property was not the whole story,” Tr. at 21,

hardly suffices for proof beyond a reasonable doubt that the letter was motivated

by the arson report.

IV . C ON CLU SIO N

W e G RANT a COA and conclude that the N M CA’s denial of M r. Torres’s

appeal “involved an unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1)). W e therefore REVERSE and REM AND to the district court with

instructions to grant M r. Torres’s application for habeas relief under 28 U.S.C.

§ 2254.

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