Brown

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…