Brown v. Farwell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TROY DON BROWN, 
Petitioner-Appellee, No. 07-15592
v. D.C. No.
CRAIG FARWELL, Warden, and THE  CV-03-00712-PMP/
ATTORNEY GENERAL OF THE VPC
STATE OF NEVADA, OPINION
Respondents-Appellants.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding

Argued and Submitted
August 16, 2007—San Francisco, California

Filed May 5, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw;
Dissent by Judge O’Scannlain

4871
4874 BROWN v. FARWELL

COUNSEL

Catherine Cortez Masto, Attorney General, Erik A. Levin,
Deputy Attorney General, Criminal Justice Division, Carson
City, Nevada, for the respondent-appellant.

Franny Forsman, Federal Public Defender, Paul G. Turner,
Assistant Federal Public Defender, Las Vegas, Nevada, for
the petitioner-appellee.
 BROWN v. FARWELL 4875
OPINION

WARDLAW, Circuit Judge:

At Petitioner Troy Brown’s trial for sexual assault, the
Warden and State’s (“Respondents”) deoxyribonucleic acid
(“DNA”) expert provided critical testimony that was later
proved to be inaccurate and misleading. Respondents have
conceded at least twice that, absent this faulty DNA testi-
mony, there was not sufficient evidence to sustain Troy’s con-
viction.1 In light of these extraordinary circumstances, we
agree with District Judge Philip M. Pro’s conclusions that
Troy was denied due process, and we affirm the district
court’s grant of Troy’s petition for writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND2

A. The Crime

In the early morning of January 29, 1994, Jane Doe,3 a
nine-year-old girl, was sexually assaulted in the bedroom of
her trailer home in Carlin, Nevada. At the time, Jane was
home alone with her four-year-old sister while their mother,
Pam, was drinking at a bar and their step-father, Wayne
1
Respondents conceded this point at least twice in the state post-
conviction proceedings, both in their written papers and during oral argu-
ment. Though counsel for Respondents sought to distance himself from
this concession at oral argument before us, Respondents are judicially
estopped from disavowing their prior representations to the courts. See
Helfand v. Gerson, 105 F.3d 530, 534-36 (9th Cir. 1997); Russell v. Rolfs,
893 F.2d 1033, 1037-39 (9th Cir. 1990).
2
The Nevada Supreme Court ably set forth the facts underlying this
appeal. We repeat them here only as necessary. See Brown v. State, 934
P.2d 235, 237-40 (Nev. 1997); see also Sumner v. Mata, 449 U.S. 539,
547 (1981) (stating that federal courts on habeas must presume correct
state court finding of facts).
3
“Jane Doe” has been substituted for the victim’s real name to protect
her identity.
4876 BROWN v. FARWELL
Henle, was working the night shift. Troy was arrested, tried,
and convicted for this crime.

Earlier that night, Pam received a phone call from Raquel
Brown, who is married to Troy’s brother, Trent, inviting Pam
to join her and Trent for a drink at the local bar, CG’s, and
asking if Jane could babysit Raquel’s children while they
were at the bar. At 6:30 p.m., Pam took Jane and her sister to
Raquel’s house, which is located across the street; Pam and
Raquel left to meet Trent at CG’s. Raquel and Trent left CG’s
at 7:30 p.m., and Pam remained at the bar. Raquel and Trent
returned home and found Jane and her sister watching a
movie. When the movie concluded at 9:30 p.m., Raquel took
the children home. Jane, wanting to let Pam know they
arrived home safely, first called CG’s, where the line was
busy. Jane then called Peacock Bar, where Troy answered the
phone and stated that Pam was at CG’s but that he would
deliver the message. By the time Troy arrived at CG’s, Pam
was on the phone with Jane.

When the conversation ended, Pam accompanied Troy to
Peacock Bar where they had a drink. Troy was clearly drunk,
but “he behaved like a gentleman and made no sexual
advances toward” Pam. Pam stated that the last time she saw
Troy was between 11 p.m. and midnight. However, one bar-
tender stated that Troy left the bar no later than 12:20 a.m.,
and another bartender stated that she believed she saw Troy
at the bar at 1:30 a.m. Between midnight and 12:30 a.m.,4
Jane called Pam at the bar and explained that some man was
at the trailer looking for Pam and had hurt her. When Pam
arrived home, she found Jane covered in blood from the waist
down and called 911. A police officer and the paramedics
responded. Jane stated to the paramedic that she felt pain in
her vaginal area, and Pam responded that her ex-husband had
done this because he threatened to “f--- [Pam’s] daughter in
order to get back at [Pam].”
4
The bartender on duty indicated that the call came just before 1 a.m.
 BROWN v. FARWELL 4877
Later at the hospital, vaginal and anal penetration were con-
firmed. Jane had bruises on her neck and scratches on her
face. A vaginal smear was taken because sperm was present.
Debris was collected from her teeth because she stated she
had bitten the assailant’s hands.

Jane described the assailant to the police that night as fol-
lows:

[H]e did not wear a hat and had blonde or sandy-
colored hair which was curly at the bottom and thin-
ning on top; she thought he had a small moustache;
he was wearing dark jeans, a black jacket with “a
zipper for sure,” a western type shirt, boots, and a
watch which scraped her face. . . . [She] stated that
the assailant smelled like cologne but that it was an
“awful smell” . . . [like] “beer or puke or some-
thing.”

That night, Troy was wearing a cowboy hat, dark jeans, a
black satin jacket with an orange and yellow CG’s logo on the
back, and boots. Two witnesses testified that, at 1:05 a.m. that
morning, they saw near Jane’s trailer a man wearing a cow-
boy hat, dark jeans, and a black satin jacket with a bright
green emblem on the back that looked like a skull or bandit.

Troy stated that he had been drinking steadily that night
and, while walking home to his trailer located ten trailers
away from Jane’s, had vomited several times, soiling his
pants and shirt. When he arrived home, Troy’s brother,
Travis, awoke from sleeping on the couch. Travis stated that
it was 1:32 a.m. when he awoke and that he did not see any
traces of blood in the house. Troy washed his clothes as soon
as he returned home because he was leaving that day to go to
Utah for a week and all of his clothes were already packed.
When a police officer arrived at 5 a.m. to question Troy, he
saw no blood on Troy or his boots; he also checked Troy’s
hands, which did not have any evidence of bite marks.
4878 BROWN v. FARWELL
Jane also stated that she fell asleep with a night light on,
but that the man who assaulted her must have turned it off
because it was off when the man left. Troy’s fingerprints were
not found anywhere in Jane’s trailer, and the one fingerprint
found on the night light did not match Troy’s.

When the police pressed Jane to tell them who the assailant
reminded her of, Jane stated “Troy,” and when the police
responded “Who?,” Jane stated “Trent. Yes, Trent.” Jane
explained that Trent was Raquel’s husband. Jane also stated
that the assailant’s hair looked like Troy’s but then changed
her mind and said it looked like Trent’s hair. A number of
days after the assault, Jane witnessed a television report of
Troy’s arrest and stated that “she knew that the man on televi-
sion was her assailant.” Jane also told the police officers that
the man she had seen on television had sent her flowers. The
card that came with the flowers was signed by Raquel and
Trent, not Troy. When the police showed Jane pictures that
included Troy’s picture and other people that she did not
know, Jane was unable to identify Troy as her attacker.

After Troy left for Utah, he contacted the Carlin police to
inquire whether he was wanted for arrest, but he was told that
he was not. Knowing that he was under suspicion, Troy
requested a full-body examination to be conducted by a nurse
in order to record his physical condition. On or about Febru-
ary 7, 1994, Troy voluntarily surrendered to the police and
was arrested. During the interrogation and throughout all pro-
ceedings, Troy has repeatedly denied involvement in the
crime.

B. State Court Proceedings

At trial, Respondents presented the testimony of DNA
expert Renee Romero of the Washoe County Sheriff’s Office
Crime Lab. Romero testified that, among other things, there
was a 99.99967 percent chance that Troy was the assailant.
 BROWN v. FARWELL 4879
The jury found Troy guilty of two counts of sexual assault
on a child under the age of fourteen, in violation of Nevada
Revised Statutes 200.366, and one count of abuse or neglect
of a child resulting in substantial bodily harm, in violation of
Nevada Revised Statutes sections 200.508, 432B.020, and
432B.070. Troy appealed to the Nevada Supreme Court,
claiming, inter alia, the district court abused its discretion
when sentencing him, the bar against double jeopardy was
violated by the duplicative convictions for sexual assault and
abuse or neglect of a child, the DNA evidence was improperly
admitted, and the evidence was insufficient to sustain his con-
viction. The Nevada Supreme Court vacated the third charge
and remanded for resentencing on the second sexual assault
count. The trial court resentenced Troy to life with the possi-
bility of parole after ten years on both sexual assault counts,
to run consecutively. Troy again appealed to the Nevada
Supreme Court, which rejected his appeal. Troy next filed a
state petition for post-conviction relief, and, after holding an
evidentiary hearing, the state courts denied relief.

C. Federal Court Proceedings

On February 6, 2004, Troy filed his federal petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254, arguing, inter
alia, violations of due process and ineffective assistance of
counsel. Judge Pro permitted Troy to expand the record,
admitting, among other things, an uncontested report discred-
iting Romero’s testimony by Dr. Laurence Mueller (the
“Mueller Report”), a professor of Ecology and Evolutionary
Biology at the University of California, Irvine.

The district court granted Troy’s petition. First, the district
court concluded that, in light of the Mueller Report, Romero’s
testimony was unreliable. Absent that testimony, no rational
trier of fact could conclude beyond a reasonable doubt that
Troy was guilty of each and every element of the offenses
with which he was charged. The district court also concluded
that Troy’s attorney’s failure to diligently defend against
4880 BROWN v. FARWELL
Respondents’ DNA testimony, as well as his failure to investi-
gate the alibi of Henle, a potential suspect, amounted to inef-
fective assistance of counsel. Respondents timely appealed.

II. STANDARD OF REVIEW

Because Troy filed his petition after April 24, 1996, it is
governed by the Antiterrorism and Effective Death Penalty
Act, 28 U.S.C. § 2254(d). Section (d)(1) of that provision pro-
vides:

An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judg-
ment of a State court shall not be granted with
respect to any claim that was adjudicated on the mer-
its 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.

A decision is “contrary to . . . clearly established” Supreme
Court precedent “if the state court applies a rule that contra-
dicts the governing law set forth in [the Supreme Court’s]
cases or if the state court confronts a set of facts that are mate-
rially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from [the
Supreme Court’s] precedent.” Lockyer v. Andrade, 538 U.S.
63, 73 (2003) (internal quotation marks omitted). A decision
is an “unreasonable application of . . . clearly established”
Supreme Court precedent “if the state court identifies the cor-
rect governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id. at 75 (internal quotation marks
omitted). Under the latter inquiry, “[t]he state court’s applica-
 BROWN v. FARWELL 4881
tion of clearly established law must be objectively unreason-
able.” Id.

We review a district court’s decision to grant or deny a
habeas petition under 28 U.S.C. § 2254 de novo. Bean v. Cal-
deron, 163 F.3d 1073, 1077 (9th Cir. 1998).

III. DISCUSSION

Troy asserts that there was insufficient evidence to convict
him. His argument rests on the admission of Romero’s later
discredited testimony regarding the DNA evidence, which
was introduced without rebuttal at trial. Respondents have
conceded that absent introduction of Romero’s DNA evi-
dence, the remaining evidence is insufficient to sustain Troy’s
conviction. Having reviewed the record ourselves, we affirm
the district court’s conclusion that, had Romero’s inaccurate
and unreliable testimony on the DNA evidence been
excluded, there would have been insufficient evidence to con-
vict Troy on each essential element of the offenses beyond a
reasonable doubt. We further agree with the district court’s
conclusion that the Nevada Supreme Court’s decision was
both “contrary to” and an “unreasonable application of” estab-
lished United States Supreme Court precedent.

A. Exhaustion

[1] Respondents erroneously contend that Troy failed to
exhaust his insufficiency claim in the Nevada courts. Troy in
fact raised this claim on direct appeal, and the Nevada
Supreme Court concluded that the totality of the evidence—
considering both the DNA and non-DNA evidence together—
was sufficient to uphold the conviction. Brown v. State, 934
P.2d 235, 240-42 (Nev. 1997); see also O’Sullivan v. Boer-
ckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give
the state courts one full opportunity to resolve any constitu-
tional issues by invoking one complete round of the State’s
established appellate review process.”).
4882 BROWN v. FARWELL
B. Motion to Supplement the Record

Respondents argue that the district court erred by granting
Troy’s request to supplement the record with the Mueller
Report. Whether we apply the de novo or abuse of discretion
standard of review to a district court’s expansion of the record
in support of a claim of insufficient evidence is an open ques-
tion. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241
n.12 (9th Cir. 2005). However, applying either standard of
review, the district court’s decision to expand the record here
was legally proper.

[2] Under 28 U.S.C. § 2254(e)(2), a claimant who “failed
to develop the factual basis of a claim in State court proceed-
ings” will not be permitted to supplement the record in federal
court unless the claim relies on (1) “a new rule of constitu-
tional law,” made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or “a fac-
tual predicate that could not have been previously discovered
through the exercise of due diligence”; and (2) “the facts
underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of
the underlying offense.” Although none of these conditions is
met here, “[a]n exception to this general rule exists if a Peti-
tioner exercised diligence in his efforts to develop the factual
basis of his claims in state court proceedings.” Cooper-Smith,
397 F.3d at 1241.

[3] The district court correctly found that Troy “presented
a comprehensive discussion of the DNA evidence” before the
Nevada Supreme Court. This finding is supported by numer-
ous challenges to the DNA evidence raised in Troy’s state
court briefs. Troy’s attempts were “reasonable” and therefore
“diligent.” See Williams v. Taylor, 529 U.S. 420, 435 (2000)
(“Diligence for purposes of [§ 2254(e)(2)] depends upon
whether the prisoner made a reasonable attempt, in light of
the information available at the time, to investigate and pursue
 BROWN v. FARWELL 4883
claims in state court.”). Moreover, as the district court found,
the Mueller Report merely clarifies, rather than fundamentally
alters, the DNA evidence and expert testimony that was
already before the Nevada courts. See Vazquez v. Hillery, 474
U.S. 254, 260 (1986) (“We hold merely that the supplemental
evidence presented by respondent did not fundamentally alter
the legal claim already considered by the state courts, and,
therefore, did not require that respondent be remitted to state
court for consideration of that evidence.”). Therefore, the dis-
trict court did not err by admitting the Mueller Report.

C. Merits

[4] We agree with the district court that the Nevada
Supreme Court’s decision was both “contrary to” and “an
unreasonable application of” Jackson v. Virginia, 443 U.S.
307 (1979). In Jackson, the Supreme Court held that a convic-
tion must be upheld if, “after 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.” Id. at 319. “[T]he standard must be
applied with explicit reference to the substantive elements of
the criminal offense as defined by state law.” Id. at 324 n.16;
see also Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004)
(en banc).

1. “Contrary to”

When addressing Troy’s insufficiency claim, the Nevada
Supreme Court stated that “[t]he standard of review for suffi-
ciency of the evidence upon appeal is whether the jury, acting
reasonably, could have been convinced of the defendant’s
guilt beyond a reasonable doubt.” Brown, 934 P.2d at 241
(citing Kazalyn v. State, 825 P.2d 578 (Nev. 1992)). It then
compiled—in one paragraph—the facts that supported its con-
clusion. Id. at 241-42.

[5] We agree with the district court that the Nevada
Supreme Court’s decision was “contrary to” Jackson, as the
4884 BROWN v. FARWELL
Nevada Supreme Court did not apply the Jackson standard.
Though the Nevada Supreme Court in previous cases had
applied the Jackson standard, see, e.g., Wilson v. State, 664
P.2d 328, 336 (Nev. 1983), here, the state court applied the
standard set forth in Kazalyn v. State. Brown, 934 P.2d at 241.
As the district court pointed out, “[t]he Kazalyn standard only
requires a reasonable jury—not a rational one.” Moreover,
under Kazalyn, a reviewing court assesses whether the jury
could have been “convinced of the defendant’s guilt”; the
Jackson standard is different, requiring the reviewing court to
assess “the essential elements of the crime.” The Nevada
Supreme Court failed to analyze each of the essential ele-
ments of the substantive state crime. Instead, it merely recited
all of the facts cumulatively without analyzing whether each
or any of those facts established an essential element of the
counts of conviction beyond a reasonable doubt, and that a
rational juror could have so found. See Chein, 373 F.3d at
983-93 (analyzing materiality and falsity of statements made
in three separate perjury counts to hold that no rational juror
could have found the defendant guilty of each element of per-
jury beyond a reasonable doubt). Therefore, the Nevada
Supreme Court’s decision was contrary to Jackson. In fact, as
demonstrated, infra, once the unreliable DNA testimony is
excluded, a proper application of the Jackson standard leads
to the conclusion that not all of the essential elements of the
crime were in fact proven beyond a reasonable doubt.

2. “Unreasonable application of”

[6] The district court also correctly concluded that the
Nevada Supreme Court’s decision was “an unreasonable
application of” Jackson because, in light of the Mueller
Report, no rational trier of fact could have found Troy guilty
beyond a reasonable doubt on the evidence presented at trial.
The validity and accuracy of the Mueller Report went unchal-
lenged by Respondents, and the district court found it to be
credible. We review this finding for clear error, and conclude
 BROWN v. FARWELL 4885
the district court did not clearly err. See Buckley v. Terhune,
441 F.3d 688, 694 (9th Cir. 2006) (en banc).

The Mueller Report indicates that Romero’s testimony was
unreliable for two main reasons. First, Romero testified that
there was a 99.99967 percent chance that Troy’s DNA was
the same as the DNA discovered in Jane’s underwear—or, in
other words, that the science demonstrated a near 100 percent
chance of Troy’s guilt. This assertion was incorrect, as it falls
directly into what has become known as the “prosecutor’s fal-
lacy.” The prosecutor’s fallacy occurs when the prosecutor
elicits testimony that confuses source probability with random
match probability. Put another way, a prosecutor errs when he
“presents statistical evidence to suggest that the [DNA] evi-
dence indicates the likelihood of the defendant’s guilt rather
than the odds of the evidence having been found in a ran-
domly selected sample.” United States v. Shonubi, 895 F.
Supp. 460, 516 (E.D.N.Y. 1995) (internal quotation marks
and citation omitted), vacated on other grounds, 103 F.3d
1085 (2d Cir. 1997); see also United States v. Chischilly, 30
F.3d 1144, 1157 (9th Cir. 1994) (“To illustrate, suppose the
. . . evidence establishes that there is a one in 10,000 chance
of a random match. The jury might equate this likelihood with
source probability by believing that there is a one in 10,000
chance that the evidentiary sample did not come from the
defendant. This equation of random match probability with
source probability is known as the prosecutor’s fallacy.”);
Richard Lempert, Some Caveats Concerning DNA as Crimi-
nal Identification Evidence, 13 CARDOZO L. REV. 303, 305-06
(1991). Such a fallacy is dangerous, as the probability of find-
ing a random match can be much higher than the probability
of matching one individual, given the weight of the non-DNA
evidence. See William C. Thompson and Edward L. Schu-
mann, Interpretation of Statistical Evidence in Criminal Tri-
als, 11 L. AND HUM. BEHAV. 167, 170-71 (1987) (noting that
the prosecutor’s fallacy “could lead to serious error, particu-
larly where the other evidence in the case is weak and there-
fore the prior probability of guilt is low”).
4886 BROWN v. FARWELL
[7] Here, Romero initially testified that Troy’s DNA
matched the DNA found in Jane’s underwear, and that 1 in
3,000,000 people randomly selected from the population
would also match the DNA found in Jane’s underwear (ran-
dom match probability). After the prosecutor pressed her to
put this another way, Romero testified that there was a
99.99967 percent chance that the DNA found in Jane’s under-
wear was from Troy’s blood (source probability). This testi-
mony was misleading, as it improperly conflated random
match probability with source probability. In fact, the former
testimony (1 in 3,000,000) is the probability of a match
between an innocent person selected randomly from the popu-
lation; this is not the same as the probability that Troy’s DNA
was the same as the DNA found in Jane’s underwear, which
would prove his guilt. Statistically, the probability of guilt
given a DNA match is based on a complicated formula known
as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in
3,000,000 probability described by Romero is but one of the
factors in this formula. Significantly, another factor is the
strength of the non-DNA evidence. Here, Romero improperly
conflated random match and source probability, an error that
is especially profound given the weakness of the remaining
evidence against Troy. In sum, Romero’s testimony that Troy
was 99.99967 percent likely to be guilty was based on her sci-
entifically flawed DNA analysis, which means that Troy was
most probably convicted based on the jury’s consideration of
false, but highly persuasive, evidence.

[8] Second, Romero inaccurately minimized the likelihood
that Troy’s DNA would match one of his four brothers’ DNA,
thus underestimating the likelihood that one of Troy’s broth-
ers could have been the perpetrator. She testified that there
was a 25 percent chance of two brothers sharing both alleles
at one locus, and, using that figure, a 1/6500 chance that one
of Troy’s brothers would match Troy’s DNA at all five loci.5
5
As the district court pointed out, “The science of human DNA is highly
complex and difficult to understand, even for the well educated and patient
 BROWN v. FARWELL 4887
The Mueller Report indicated that Romero’s calculation was
incorrect, as the correct figure is 1/1024. More importantly,
Romero’s testimony is misleading because it presented the
narrowest interpretation of the DNA evidence. Had Romero
accounted for Troy’s four brothers, two of whom lived in Car-
lin and two of whom lived in neighboring Utah, the chance
that Troy’s DNA would match at least one of his four broth-
ers’ DNA can increase to 1/66—almost one hundred times the
probability asserted by Romero. This omission was especially
egregious given that the victim, Jane, had twice identified
Troy’s brother, Trent, as the assailant. Again, Respondents
introduced nothing to contradict the findings of the Mueller
Report.

[9] A federal court on habeas may exclude evidence admit-
ted in the state court if the evidence “rendered [the] trial so
fundamentally unfair as to violate federal due process.”
Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985). We
agree with the district court that Romero’s testimony was
unreliable, as it was inaccurate and ignored logical implica-

student. It involves the matching of human genome materials or alleles
and a statistical calculation of how often that match might occur in a cho-
sen population.” We have previously described the science of DNA testing
as follows:
An allele is any alternative form of a gene that can occupy a
particular chromosomal locus. In humans and other diploid
organisms there are two alleles, one on each chromosome of a
homologous pair. Forensic DNA tests compare allele combina-
tions at loci where the alleles tend to be highly variable across
individuals and ethnic groups. If there is no match between the
alleles from the evidence DNA and the potential suspect’s DNA,
the suspect is generally ruled out as the source of the evidence,
unless the failure is attributable to inadequate test conditions or
contaminated samples. If there is a match, analysts use the fre-
quency of the alleles’ appearance in the relevant population to
calculate the probability that another person could have the same
pattern of allele pairs.
Chischilly, 30 F.3d at 1153 n.7 (internal quotation marks and citations
omitted).
4888 BROWN v. FARWELL
tions about Troy’s four brothers, each of whom lived in the
general vicinity. Admission of this unreliable testimony most
certainly rendered the trial fundamentally unfair, as even
Respondents concede that “[t]here was insufficient evidence
to convict the Defendant unless the DNA evidence established
his guilt.” Thus, the admission of Romero’s unreliable and
misleading testimony violated Troy’s due process rights, and
the district court did not err in excluding it. See United States
v. Scheffer, 523 U.S. 303, 309 (1998) (“State and Federal
Governments unquestionably have a legitimate interest in
ensuring that reliable evidence is presented to the trier of fact
in a criminal trial. Indeed, the exclusion of unreliable evi-
dence is a principal objective of many evidentiary rules.”).

After excluding Romero’s testimony, the district court
weighed the sufficiency of the remaining evidence in the light
most favorable to the prosecution, Jackson, 443 U.S. at 319,
and concluded that “there [is] sufficient conflicting testimony
to raise a reasonable doubt in the mind of any rational trier of
fact.” On appeal, Respondents argue that there is much evi-
dence to support the conviction. However, it is Respondents’
burden to establish guilt beyond a reasonable doubt for each
and every element of the offense, a burden that Respondents
have not carried here.

The district court thoroughly catalogued the numerous
inconsistencies that would raise a reasonable doubt as to
Troy’s guilt in the mind of any rational juror. Three witnesses
disagreed about the time at which Troy left CG’s to return
home. Notably, one witness testified that Troy remained at the
bar at 1:30 a.m., thirty to ninety minutes after the assault
occurred. Moreover, although Jane at times identified Troy as
her attacker, twice she identified Trent as the assailant. There
is also considerable conflict between Jane’s description of her
attacker and Troy’s clothing and appearance that night. For
example, Troy’s jacket was zipperless, but Jane testified that
her assailant’s jacket had “a zipper for sure.”
 BROWN v. FARWELL 4889
The prosecution’s theory is also undermined by the testi-
mony of Troy’s brother and roommate, Travis, who testified
that he did not see blood on Troy’s boots or notice anything
unusual about Troy when he arrived home at 1:32 a.m. Fur-
thermore, early the next morning, when an officer examined
Troy, he found no evidence of marks on Troy’s hands or
blood on Troy’s clothing, which would have been consistent
with Troy being the attacker. That Troy laundered his cloth-
ing, though plausibly consistent with him being the assailant,
is also consistent with his testimony that he vomited on him-
self on the walk home, and that he wanted to clean his clothes
before his trip to Utah the following day.

The manner in which the forensic evidence at the scene was
collected and examined raises doubt as well. Troy’s finger-
prints did not match the fingerprint on the night light in Jane’s
room, which Jane testified her attacker turned off before wak-
ing her up. Moreover, neither Jane’s bedding nor the pubic
hairs discovered in a jacket in Jane’s bedroom were tested for
DNA samples.

At all times, Troy has denied involvement in the crime. He
also took actions inconsistent with having something to hide.
While in Utah, he called the Carlin police to inquire whether
he was wanted for arrest. Knowing that he was under suspi-
cion, he voluntarily submitted to a full-body examination to
record that he had no markings consistent with Jane’s descrip-
tion of the attack.

[10] The conflicts in the evidence are simply too stark for
any rational trier of fact to believe that Troy was the assailant
beyond a reasonable doubt, an essential element of any sexual
assault charge. This conclusion is confirmed by Respondents’
own concessions. Therefore, the Nevada Supreme Court’s
decision was “an unreasonable application of” Jackson.

IV. CONCLUSION

[11] Because we affirm the district court’s grant of Troy
Brown’s habeas petition on due process grounds, we need not
4890 BROWN v. FARWELL
reach his arguments regarding ineffective assistance of coun-
sel. The district court’s grant of Troy’s petition for writ of
habeas corpus and reversal of his conviction is AFFIRMED.
Respondents shall retry Troy within 180 days or shall release
him from custody.

AFFIRMED.

O’SCANNLAIN, Circuit Judge, dissenting:

Because I am persuaded that the Nevada Supreme Court
did not misapply federal law with respect to sufficiency of the
evidence review, I must respectfully dissent.

I

A habeas petitioner “is entitled to habeas corpus relief if it
is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324
(emphasis added).1

After Winship the critical inquiry on review of the
sufficiency of the evidence to support a criminal
conviction must be not simply to determine whether
the jury was properly instructed, but to determine
whether the record evidence could reasonably sup-
port a finding of guilt beyond a reasonable doubt.
But this inquiry does not require a court to “ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.”
1
The district court acknowledged this standard. See District Court Order
on Merits, pg. 5. (hereinafter “Order”) (“It is the evidence actually pre-
sented at trial, not evidence that should have or might have been pre-
sented, which is reviewed by the court.”).
 BROWN v. FARWELL 4891
Id. at 318-19. In conducting the sufficiency of the evidence
inquiry, a reviewing court must “view[ ] the evidence in the
light most favorable to the prosecution.” Id. at 719.

AEDPA adds deference to such inquiry. In Sarausad v.
Porter, 479 F.3d 671, 677 (9th Cir. 2007), we wrote:

[28 U.S.C.] § 2254(d)(1) plainly applies to Jackson
cases. A state court must decide under Jackson
whether the evidence viewed in the light most favor-
able to the prosecution, would allow any rational
trier of fact to find the defendant guilty beyond a rea-
sonable doubt.

Id. Thus, AEDPA permits habeas relief only if “a state court
determination that the evidence was sufficient to support a
conviction was an “objectively unreasonable” application of
Jackson.” Id.

With respect, I am persuaded that the Nevada Supreme
Court complied with this standard. Although the state court
did not cite Jackson, it noted that “[t]he standard of review for
sufficiency of the evidence upon appeal is whether the jury,
acting reasonably, could have been convinced of the defen-
dant’s guilt beyond a reasonable doubt.” Brown, 934 P. 2d at
241. That standard mirrors the Jackson approach, and
AEDPA does not require express citation to federal law. See
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). The
Nevada Supreme Court then reviewed the record and con-
cluded that “a jury, acting reasonably, could have been con-
vinced of Troy’s guilt beyond a reasonable doubt”:

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 tele-
phone call to her mother at approximately 1:00 a.m.
4892 BROWN v. FARWELL
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, the Dokes testified that they saw some-
one 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 indi-
cated that semen collected from Jane Doe’s under-
wear 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).

Brown, 934 P. 2d at 241-42.

In reviewing the Nevada Supreme Court’s decision, the dis-
trict court failed to view the evidence in the light most favor-
able to the prosecution. Unlike in Sarausad, the district court
parsed the conflicts in the trial testimony and found several
inconsistencies that it considered to be of “grave concern.”
Order, pg. 9. For example, the court cited to evidence first
added to the record on federal habeas, that the prosecution’s
DNA expert “incorrectly calculated” the DNA matching prob-
ability and misleadingly stated “the lowest probability possi-
ble among siblings.” Order, pg. 8. It also stated that “there
was conflicting testimony about the time that Petitioner actu-
ally left the bar and headed home” and “[t]here is also conflict
between the victim’s description of her assailant and Petition-
er’s apparel and appearance.” Order, pg. 9. But under Jack-
son, these disputed facts simply should have been viewed in
the light most favorable to the government.
 BROWN v. FARWELL 4893
In contrast, the Nevada Supreme Court viewed the facts in
a manner that accorded with the Jackson standard. For exam-
ple, it stated that Jane Doe had called her mother around 1:00
a.m., although the evidence conflicted as to whether Jane Doe
placed the call at about midnight or around 1:00 a.m. Because
the latter testimony gave Troy more time to assault Jane Doe,
the Nevada Supreme Court correctly assumed that the jury
had accepted that version of the facts. Furthermore, the Court
did not mention conflicting points in the testimony, such as
statements that the emblem on Troy’s jacket was yellow and
orange and other statements that it was bright green. See
Sarausad, 479 F.3d at 683 (“We have considered the evidence
in the light most favorable to the prosecution. We have not
considered (or described here) the evidence that contradicted
or minimized the importance of the evidence favoring the
prosecution.”).

Again, with respect, I am not persuaded by the district
court’s view that the Nevada Supreme Court’s description of
the facts was a series of “factual determinations,” Order, pg.
9 (emphasis added); rather, it was not making factual findings
but simply reading the evidence in the light that most sup-
ported a finding of guilt.

But even more problematic than the district court’s focus
on the testimonial conflicts is its, and the majority’s, failure
to give any weight to the DNA evidence. See id. at 4886-88.
The district court stated: “[A]bsent the DNA testimony and
even after weighing the evidence in favor of the prosecution,
there are [sic] sufficient conflicting testimony to raise a rea-
sonable doubt in the mind of any rational trier of fact.” Id. at
9. Jackson does not permit a federal court to resolve a
sufficiency-of-the-evidence claim by imagining a different
state trial in which evidence actually presented would have
been excluded—especially not on the basis of reports added
to the record during federal habeas review.
4894 BROWN v. FARWELL
Even if one accepts Dr. Mueller’s estimate that “the chance
of a single sibling matching Troy Brown’s DNA profile is 1
in 263,”2 “the chance that among two brothers, one or more
would match is 1/132,” and the chance of “four brothers
[matching would be] 1 in 66,” no rational trier of fact would
have changed its mind. First, the DNA still would have sug-
gested that the rape was committed by Brown or one of his
brothers. And the likelihood that one of his brothers would
have such DNA was very slim: if not 1/6500, then at most
1/132. Thus, it was extremely unlikely that a random person
committed the crime, and of the brothers, it was extremely
unlikely that the specimen DNA would match not only Troy
—as it did—but another brother.3 These probabilities put
together still constitute overwhelming DNA evidence against
Troy which the jury was entitled to consider.

Moreover, there was considerable circumstantial evidence
to focus the jury’s attention on Troy and to remove any rea-
sonable doubt as to whether one of his brothers committed the
crime. As noted above, two of Troy’s brothers were not even
in the state at the time, and one of those was only 13. Another
brother (Travis) was present in the area but had an uncon-
tested alibi that he had been sleeping at or shortly after the
time of the crime. The fifth brother (Trent) was present at the
time and warranted greater suspicion because Jane Doe had
stated at one point that she thought he was her attacker.

The likelihood that the jury would have had a reasonable
doubt based on Trent’s being in the picture was negligible.
Trent already played a visible and non-incriminating role in
2
The numbers, as estimated by the district court and various experts,
differ. I cannot say which are right, but they all suggest that a proper cal-
culation would have taken into greater account the probability of sibling
allele identity.
3
Such reasoning does not commit the “prosecutor’s fallacy” because the
set of persons in my data pool is specified (whether it contains the three
brothers in the area or all five brothers).
 BROWN v. FARWELL 4895
the events. He and his wife Raquel had met Pam at the bar
that night and had been at their house thereafter; no evidence
suggested that he went over to Jane Doe’s trailer. Moreover,
the jury had overwhelming grounds to conclude that between
the two brothers, the rapist was Troy. The attacker smelled
like vomit, and Troy had gotten drunk by having twenty
drinks over the course of the night and had vomited. In con-
trast, the evidence was that Trent had spent 30 minutes at the
bar and was home with his wife and children thereafter. Fur-
thermore, the Dokes saw someone staggering along the road
by Jane Doe’s trailer around the time of the crime, wearing
clothes they described as closely resembling those that Troy
was wearing the night of the crime. In contrast, no evidence
suggested that Trent was wearing similar clothes (and Brown
does not contend so now). The timing and the circumstantial
evidence all pointed toward Troy, not Trent.

The Nevada Supreme Court properly considered the evi-
dence, including the DNA evidence, as it was presented by
the prosecution at trial. The compelling force of the DNA evi-
dence, coupled with the strong circumstantial evidence and
inferences supported by the totality of the evidence, firmly
grounded the Nevada Supreme Court’s decision. See Sarau-
sad, 479 F.3d at 678 (“In performing a Jackson analysis,
‘[c]ircumstantial evidence and inferences drawn from [the
record] may be sufficient to sustain a conviction.’ ”)(citation
omitted).

II

In sum, in light of the standard of review prescribed by
AEDPA, I would reverse the district court’s order granting the
petition for habeas relief. Therefore, I must respectfully dis-
sent from the majority’s decision to affirm.