Brown v. Craig Farwell ( 2008 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TROY DON BROWN,                           No. 07-15592
    Petitioner-Appellee,           D.C. No.
    v.                        CV-03-00712-PMP/
    VPC
    CRAIG FARWELL, Warden; and THE
    ATTORNEY GENERAL OF THE                     ORDER
    STATE OF NEVADA,                           AMENDING
    Respondents-Appellants.         OPINION AND
    AMENDED
           OPINION
    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
    Amended July 21, 2008
    Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
    and Kim McLane Wardlaw, Circuit Judges.
    Opinion by Judge Wardlaw;
    Dissent by Judge O’Scannlain
    8943
    8946                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.
    ORDER
    The Opinion filed May 5, 2008 and published at 
    525 F.3d 787
     (9th Cir. 2008) is hereby AMENDED as follows: Page
    BROWN v. FARWELL                          8947
    789, Footnote 1: Remove “Though counsel for Respondents
    sought to distance himself from this concession at oral argu-
    ment before us, Respondents are judicially estopped from dis-
    avowing 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).”
    The petition for rehearing and suggestion for rehearing en
    banc are still pending.
    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
    1
    Respondents conceded this point at least twice in the state post-
    conviction proceedings, both in their written papers and during oral argu-
    ment.
    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).
    8948                     BROWN v. FARWELL
    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
    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
    3
    “Jane Doe” has been substituted for the victim’s real name to protect
    her identity.
    BROWN v. FARWELL                         8949
    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].”
    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.
    4
    The bartender on duty indicated that the call came just before 1 a.m.
    8950                  BROWN v. FARWELL
    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.
    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
    BROWN v. FARWELL                     8951
    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.
    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
    8952                   BROWN v. FARWELL
    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
    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-
    BROWN v. FARWELL                       8953
    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-
    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.
    8954                  BROWN v. FARWELL
    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.”).
    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
    BROWN v. FARWELL                     8955
    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
    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;
    8956                   BROWN v. FARWELL
    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
    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
    BROWN v. FARWELL                     8957
    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
    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
    8958                  BROWN v. FARWELL
    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”).
    [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
    BROWN v. FARWELL                           8959
    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
    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-
    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
    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).
    8960                   BROWN v. FARWELL
    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-
    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
    BROWN v. FARWELL                     8961
    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.”
    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.
    8962                   BROWN v. FARWELL
    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
    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
    BROWN v. FARWELL                          8963
    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.”
    
    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
    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.”).
    8964                   BROWN v. FARWELL
    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.
    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 v. FARWELL                     8965
    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.
    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
    8966                       BROWN v. FARWELL
    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 17-20. 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 reasonable
    doubt in the mind of any rational trier of fact.” Id. at 9. Jack-
    son 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.
    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
    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                    8967
    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
    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
    8968                  BROWN v. FARWELL
    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.