McDaniel v. Brown

Cite as: 558 U. S. ____ (2010) 1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

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 pro
file. 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. Respon
dent Troy Brown was convicted of the crime. During and
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since his trial, respondent has steadfastly maintained his
innocence.1 He was, however, admittedly intoxicated
when the crime occurred, and after he awoke on the fol
lowing 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 ac
quainted 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 stum

——————
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 accep
tance of responsibility would garner him leniency.
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Per Curiam

bling 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). Addi
tionally, there was conflicting testimony as to when Troy
left the Peacock and when Pam received Jane’s call report
ing 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
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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 coun
sel did not call his own DNA expert at trial, although he
consulted with an expert in advance who found no prob
lems 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 sen
tenced him to life with the possibility of parole after 10
years.2 On direct appeal, the Nevada Supreme Court
considered Troy’s claim that his conviction was not sup
ported 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
——————
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.
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Per Curiam

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 tele
phone 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 resem
bling 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 se
men 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 constitu
tionally 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
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Per Curiam

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 postconvic
tion 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 analy
sis. In particular, he argued that Romero’s testimony
related to the DNA evidence was inaccurate and unreli
able in two primary respects: Romero mischaracterized
the random match probability and misstated the probabil
ity 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 Ro
mero’s testimony, respondent submitted a report prepared
by Laurence Mueller, a professor in ecology and evolution
ary biology (Mueller Report). The District Court supple
mented 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 with
out the DNA evidence “a reasonable doubt would exist in
the mind of any rational trier of fact.” Id., at *7. The
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Per Curiam

court granted respondent habeas relief on his Jackson
claim.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 cor
rect to exclude it. 525 F. 3d, at 797. It then “weighed the
sufficiency of the remaining evidence,” including the Dis
trict 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 testi
mony related to the DNA evidence, as indicated by the
Mueller Report. The Mueller Report does not challenge

——————
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.
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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 popu
lation 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 de
fendant 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, how
ever, 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
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Per Curiam

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 equat
ing 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 mathe
matical equivalence between 1 in 3,000,000 and the per
centage figure. At the end of the colloquy about percent
ages, she answered affirmatively the court’s question
whether the percentage was “the same math just ex
pressed 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 re
spects. First, she used an assumption regarding the par
ents 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
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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 Peti
tioners 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 Tele
phone 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
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Per Curiam

of Appeals’ application of Jackson. Cf. Pacific Bell, supra,
at ___ (slip op., at 7).
Respondent no longer argues it was proper for the Dis
trict 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 evi
dence 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.” Lock
hart v. Nelson, 488 U. S. 33, 39 (1988). Because reversal
for insufficiency of the evidence is equivalent to a judg
ment 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 review
ing 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 egre
gious error in concluding the Nevada Supreme Court’s
rejection of respondent’s insufficiency-of-the-evidence
claim “involved an unreasonable application of . . . clearly
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established Federal law,” 28 U. S. C. §2254(d)(1).4
Even if the Court of Appeals could have considered it,
the Mueller Report provided no warrant for entirely ex
cluding 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 underes
timated 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.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
——————
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 “reason
able” jury could be convinced of guilt beyond a reasonable doubt, rather
than asking whether a “rational” one could be convinced of each ele
ment of guilt; a reasonable jury could hardly be convinced of guilt
unless it found each element satisfied beyond a reasonable doubt.
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.
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match among two brothers—because two of Troy’s four
brothers lived in Utah. Second, although Jane Doe men
tioned 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 un
reasonable 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 his
torical 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 resolu
tion.” 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 sup
port the conviction”). The Court of Appeals acknowledged
that it must review the evidence in the light most favor
able to the prosecution, but the court’s recitation of incon
sistencies 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
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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 prosecu
tion, 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 substan
tially upon a concession made by the State in state post
conviction 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,6 not a situa
tion 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,” Jack
son, 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 consid
eration 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
——————
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.
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due process of law. Brief for Respondent 4. Because the
Ninth Circuit held that “the admission of Romero’s unreli
able 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 adjudi
cation of the claim was “contrary to, or involved an unrea
sonable 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 deter
mined 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 be
cause 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 consis
tently argued that Romero’s testimony should be excluded
from the Jackson analysis simply because it was “unreli
able” 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 pre
sented insufficient evidence at trial to prove [respondent]
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guilty”). In the Ninth Circuit, too, respondent presented
only his Jackson claim,7 and it is, at the least, unclear
whether respondent presented his newly minted due
process claim in the state courts.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. Os
borne, 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
——————
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.
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. Respon
dent 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.
 Cite as: 558 U. S. ____ (2010) 17

Per Curiam

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 re
versed, and the case is remanded for further proceedings
consistent with this opinion.

It is so ordered.
 Cite as: 558 U. S. ____ (2010) 1

THOMAS, J., concurring

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]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
concurring.
I join the per curiam because it correctly holds that the
Ninth Circuit erred in departing from Jackson’s mandate
that a federal habeas court confine its sufficiency-of-the
evidence analysis to “the evidence adduced at trial” and,
specifically, to “ ‘all of the evidence admitted by the trial
court.’ ” Ante, at 11 (quoting Lockhart v. Nelson, 488 U. S.
33, 41 (1988)); see Jackson v. Virginia, 443 U. S. 307
(1979). I write separately because I disagree with the
Court’s decision to complicate its analysis with an exten
sive discussion of the Mueller Report. See ante, at 7–13.
Defense counsel commissioned that report 11 years after
respondent’s trial. See ante, at 1. Accordingly, the re
port’s attacks on the State’s DNA testimony were not part
of the trial evidence and have no place in the Jackson
inquiry. See Jackson, supra, at 318; Lockhart, supra, at
40–42. That is all we need or should say about the report
in deciding this case.
The Court’s opinion demonstrates as much. The Court’s
lengthy discussion of the Mueller Report, see ante, at 7–
10, is merely a predicate to asserting that “even if” the
Court of Appeals could have considered the report in its
Jackson analysis, the report “provided no warrant for
entirely excluding the DNA evidence or Romero’s testi
2 MCDANIEL v. BROWN

THOMAS, J., concurring

mony from that court’s consideration” because the report
“did not contest that the DNA evidence matched Troy” or
otherwise show that the State’s DNA estimates were
“unreliable,” ante, at 12. Based on these observations, the
Court concludes that the Mueller Report did not under
mine the State’s DNA tests as “powerful inculpatory evi
dence.” Ibid. That is true, but even if the report had
completely undermined the DNA evidence—which the
Ninth Circuit may have mistakenly believed it did, see
Brown v. Farwell, 525 F. 3d 787, 795–796 (2008)—the
panel still would have erred in considering the report to
resolve respondent’s Jackson claim. The reason, as the
Court reaffirms, is that Jackson claims must be decided
solely on the evidence adduced at trial. See ante, at 11.
Accordingly, the Court need not correct any erroneous
impressions the Ninth Circuit may have had concerning
the report’s impact on the State’s DNA evidence to resolve
respondent’s Jackson claim.* Because that is the only
claim properly before us, I do not join the Court’s dicta
about how the Mueller Report’s findings could affect a
constitutional analysis to which we have long held such
post-trial evidence does not apply. See Jackson, supra, at
318.

——————
* Correcting the Ninth Circuit’s apparent misconception of the effects
of the Mueller Report is the only plausible reason for the Court’s
decision to explain that the report would not have undermined the
State’s DNA results “even if” the Court of Appeals could have consid
ered it in resolving respondent’s Jackson claim. Ante, at 11–12. That
discussion cannot properly be read to suggest either that there are
circumstances in which post-trial evidence would “warrant” excluding
DNA trial evidence from a Jackson analysis, ante, at 12, or that courts
applying Jackson may consider post-trial evidence for any other pur
pose. Both points are squarely foreclosed by the precedents on which
the Court relies in reversing the Ninth Circuit’s judgment. See ante, at
1 (citing Jackson, v. Virginia, 443 U. S. 307, 324 (1979)); ante, at 11
(citing Lockhart, v. Nelson, 488 U. S. 33, 39 (1988)), respectively.