FILED
NOT FOR PUBLICATION FEB 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH CASEY, No. 10-56763
Petitioner - Appellant, D.C. No. 8:09-cv-00370-ODW-
PLA
v.
MICHAEL MARTEL, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted February 6, 2012**
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Kenneth Michael Casey, a state prisoner, appeals the district court’s denial
of his petition for writ of habeas corpus. The district court issued a certificate of
appealability with respect to Casey’s claims that insufficient evidence supported
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his conviction for conspiracy to create child pornography under California Penal
Code § 311.4(c) and/or to commit a lewd and lascivious act upon a child under
California Penal Code § 288(a), and that there was insufficient evidence to support
his conspiracy conviction because there was no evidence that he or his
coconspirator committed an overt act in furtherance of the conspiracy after they
agreed to commit a crime. We have jurisdiction under 28 U.S.C. § 2253(a), and
we affirm.
Casey’s habeas petition is subject to the provisions of the Anti-Terrorism
and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2241-2255. To
prevail, Casey must show an “an unreasonable application of[ ] clearly established
Federal law” or an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington
v. Richter, -- U.S. --, 131 S. Ct. 770, 786 (2011).
The “clearly established Federal law” at issue here is Jackson v. Virginia,
443 U.S. 307 (1979), under which “the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
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could have found the essential elements of the crime beyond a reasonable doubt.”
Id. at 319 (emphasis in original).1
The California Court of Appeal did not unreasonably apply clearly
established federal law in holding that substantial evidence showed that Casey
conspired to both create child pornography and commit a lewd and lascivious act
upon a child. See 28 U.S.C. § 2254(d)(1); People v. Casey, No. G037067, 2007
WL 2770855 (Cal. Ct. App. Sept. 24, 2007). Under the Jackson standard,
sufficient evidence existed that Casey and his coconspirator Dale Allen Rumsey
had agreed to pose or model the victim to create images exhibiting the victim’s
genitals or pubic or rectal area for the purpose of the viewer’s sexual stimulation.
See Cal. Penal Code § 311.4(c), (d)(1). Therefore, the state appellate court’s
decision was not an unreasonable application of Jackson. We reach the same
conclusion regarding the state appellate court’s decision finding substantial
1
It makes no difference that the state court did not expressly refer to
Jackson. State law provides an identical standard of review. Compare People v.
Johnson, 26 Cal. 3d 557, 576 (1980) (“The appellate court must determine whether
a reasonable trier of fact could have found the prosecution sustained its burden of
proving the defendant guilty beyond a reasonable doubt.”) (internal quotation
marks and citation omitted) with Jackson, 443 U.S. at 319. In addition, a state
court’s failure to cite governing Supreme Court decisions “does not affect the
application of the AEDPA standard” so long as the court’s ruling does not
contradict those decisions. Garcia v. Carey, 395 F.3d 1099, 1104 n.8 (9th Cir.
2005) (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
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evidence that Casey and Rumsey agreed to have Casey cause or instigate the victim
to remove his clothes for Casey’s sexual gratification. See Cal. Penal Code § 288;
People v. Austin, 111 Cal. App. 3d 110, 115 (1980) (under § 288, defendant “was
responsible for the touching and removal of the child’s pants as surely as if he had
done it himself”).
In a summary denial, the California Supreme Court rejected Casey’s claim
that insufficient evidence existed of the conspiracy because there was no evidence
of overt acts in furtherance of the conspiracy after the agreement had been created.
We conclude that a reasonable basis existed for the California Supreme Court’s
decision. See Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (“Where a state
court’s decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state
court to deny relief.”). Sufficient evidence existed that at least one of the overt acts
alleged in the government’s information occurred after Casey and Rumsey’s
agreement to create child pornography and/or commit a lewd act upon a minor
came into being. See Cal. Penal Code § 182(b) (requiring proof of the commission
of an overt act by one or more parties in furtherance of the conspiracy); People v.
Herrera, 83 Cal. App. 4th 46, 64 (2000) (facts proving a conspiracy may be
“inferred from the conduct, relationship, interests, and activities of the alleged
4
conspirators before and during the alleged conspiracy”); People v. Von Villas, 11
Cal. App. 4th 175, 245 (1992) (“arrangements, discussions, and preparation” for a
crime among conspirators can constitute overt acts).
AFFIRMED.
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