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Smith v. Mitchell ( 2008 )


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  •                    FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIRLEY REE SMITH,                           No. 04-55831
Petitioner-Appellant,
v.                              D.C. No.
CV-01-04484-ABC
DEBORAH L. PATRICK, Warden,
ORDER
Respondent-Appellee.

Filed February 27, 2008
Before: Harry Pregerson and William C. Canby, Jr.,
Circuit Judges, and Edward C. Reed, Jr.,* District Judge.
ORDER
The State has filed a petition for panel and en banc rehear-
ing of our order reinstating our decision granting habeas cor-
pus relief to appellant Smith. See Smith v. Patrick,
    508 F.3d 1256 
    (9th Cir. 2007). By supplemental letter, see Fed. R. App.
P. 28(j), the State has called our attention to the Supreme
Court’s recent decision in Wright v. Van Patten,
    128 S. Ct. 743 
    (2008) (per curiam). In Van Patten, the Seventh Circuit
had held that an attorney’s appearance by speaker phone at a
plea hearing constituted ineffective assistance of counsel that
was inherently prejudicial under United States v. Cronic,
    466 U.S. 648 
    (1984). See Van Patten v. Deppisch,
    434 F.3d 1038 
    (7th Cir. 2006). The Supreme Court vacated the decision and
remanded for reconsideration in light of Carey v. Musladin,
    127 S. Ct. 649 
    (2006). See Schmidt v. Van Patten,
    127 S. Ct. 1120 
    (2007) (mem.). On remand, the Seventh Circuit adhered
*The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
1703
1704                   SMITH v. PATRICK
to its earlier decision. Van Patten v. Endicott,
    489 F.3d 827 
    (7th Cir. 2007). The Supreme Court then reversed, holding
that it had never addressed the question whether counsel’s
“participation by speaker phone should be treated as a ‘com-
plete denial of counsel,’ on par with total
    absence.” 128 S. Ct. at 746
    . Because the Supreme Court had not addressed that
question, the state court could not have unreasonably applied
clearly established federal law as determined by the Supreme
Court.
    Id. at 747; 
    see 28 U.S.C. § 2254(d)(1).
For the same reason that we determined that Musladin did
not affect our decision in Smith, we conclude that Van Patten
does not, either. Van Patten addresses an entire class of cases
under the Supreme Court’s jurisprudence applying the stan-
dards set by Strickland v. Washington,
    466 U.S. 668 
    (1984),
for ineffective assistance of counsel. Whether appearance of
counsel by telephone is structural error is an issue “for
another day” that the Supreme Court may address to establish
a rule for innumerable cases in the future.
    See 128 S. Ct. at 747
    .
Smith is quite a different matter. The standard for constitu-
tional insufficiency of evidence is established by Jackson v.
Virginia,
    443 U.S. 307
    , 319 (1979). There are infinite poten-
tial scenarios in which the evidence may be insufficient to
convict; the standard is simply whether “any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.”
    Id. A decision 
    by the Supreme
Court that, under a particular set of facts, the constitutional
Jackson standard was or was not met, provides no guide for
future decisions addressing different facts. Thus the governing
standard is Jackson itself, if Jackson is to be given any effect
in the habeas context in which it arose. Jackson is law clearly
established by the Supreme Court, and an unreasonable appli-
cation of Jackson by the state appellate court in Smith’s case
therefore permits federal habeas relief under 28 U.S.C.
§ 2254(d)(1).
SMITH v. PATRICK                   1705
Accordingly, the panel, as constituted above, has unani-
mously voted to deny the petition for panel rehearing. Judge
Pregerson has voted to deny the petition for rehearing en
banc, and Judges Canby and Reed have so recommended.
The petition for en banc rehearing has been circulated to
the full court along with this order, and no judge has
requested a vote on whether to rehear the matter en banc. See
Fed. R. App. P. 35(b).
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
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