Kimberly Long v. Deborah K. Johnson ( 2013 )

FILED
NOT FOR PUBLICATION JUL 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY LOUISE LONG, No. 12-55820
Petitioner - Appellant, D.C. No. 5:10-cv-00277-PSG-SP
v.
MEMORANDUM**
DEBORAH K. JOHNSON; Warden,*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted July 8, 2013
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Appellant Kimberly Louise Long (Long) appeals the district court’s denial
of her petition for a writ of habeas corpus.
* Deborah K. Johnson is substituted for Mary Lattimore as Warden of
the Central California Women’s Facility. Fed R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. When a state prisoner challenges a conviction for insufficient
evidence under Jackson v. Virginia, 443 U.S. 307 (1979), we view the evidence in
the light most favorable to the prosecution. See Boyer v. Belleque, 659 F.3d 957,
960 (9th Cir. 2011), cert. denied, 132 S.Ct. 2723 (2012). To grant habeas relief,
“we must conclude that the state court’s determination that a rational jury could
have found that there was sufficient evidence of guilt . . . was objectively
unreasonable.” Id. at 965.
2. Given the “double dose of deference” that we owe to state courts
under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), id. at
964, we cannot conclude that the California Court of Appeal unreasonably applied
Jackson in affirming Long’s conviction for second degree murder. Viewing the
evidence in the light most favorable to the prosecution, the state court reasonably
determined that it was not irrational for the jury to conclude beyond a reasonable
doubt that between 1:20 a.m. and 2:09 a.m., Long: (1) killed the victim; (2)
washed herself and changed out of her bloodied clothes; (3) disposed of the murder
weapon and bloodied clothes beyond the perimeter of the police search; and (4)
called 9-1-1.
Page 2 of 3
Although the evidence presented at trial could also yield an alternative
inference, we “must respect the exclusive province of the [jury] to determine the
credibility of witnesses, resolve evidentiary conflicts, and draw reasonable
inferences from proven facts.” United States v. Archdale, 229 F.3d 861, 867 (9th
Cir. 2000) (citation omitted). And while the evidence was circumstantial, a murder
conviction may rest solely upon such evidence. See People v. Snow, 65 P.3d 749,
761 (Cal. 2003) (holding that circumstantial evidence alone supported the
defendant’s murder conviction); see also United States v. Preston, 706 F.3d 1106,
1120 (9th Cir. 2013), as amended (“Circumstantial evidence alone can be
sufficient to demonstrate a defendant’s guilt. . . .”) (citation and alteration omitted).
Ultimately, we might have entertained reasonable doubt if we were the jury,
or we might have found the evidence to be insufficient if we were sitting as the
reviewing court on direct appeal. But under AEDPA, we are limited to
determining whether the California Court of Appeal unreasonably applied Jackson.
See Boyer, 659 F.3d at 965. Applying this doubly deferential standard, we must
affirm.
AFFIRMED.
Page 3 of 3
FILED
Long v. Johnson, No. 12-55820
JUL 24 2013
WATFORD, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I have grave doubts about whether the State has convicted the right person in
this case. Those doubts stem from the fact that it would have been virtually
impossible for the defendant to commit the crime and eliminate all traces of her
involvement even if she had arrived home at 1:20 a.m., as the State contends,
rather than around 2:00 a.m., as the defendant testified at trial. I am also troubled
by the fact that the only witness who placed the defendant at home as early as 1:20
a.m. never actually testified at trial. This witness’s testimony was so critical—and
the State’s case so thin—that the trial judge said he would not even have allowed
the case to go to the jury without it. Yet the jury was left to assess the credibility
of this witness based on a cold preliminary hearing transcript, rather than all the
subtle and intangible factors juries take into account when they evaluate live
testimony, because the witness died before trial commenced.
Despite these misgivings, I join the court’s disposition. As the court notes,
one of the inevitable consequences of the doubly deferential standard of review we
must apply under AEDPA “is that judges will sometimes encounter convictions
that they believe to be mistaken, but that they must nonetheless uphold.” Cavazos
v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam).