Gary Dwayne Bruce v. Cal Terhune California Attorney General

In this appeal from the denial of a petition for a writ of habeas corpus arising out of a prosecution for lewd and lascivious conduct with a child, we must decide whether the state court unreasonably ap *952 plied clearly established Federal law on burden of proof and whether sufficient evidence exists to support the conviction.

I

A California Superior Court jury convicted Gary D. Bruce of six counts of lewd and lascivious conduct with a child under the age of fourteen in violation of Cal.Penal Code § 288.

Bruce’s prosecution stemmed from two alleged instances of molestation. The first was in September 1996, when Bruce’s ten-year-old cousin, Catina B., spent the night at Bruce’s home as the guest of Bruce’s daughters Angela, age 13, and Amanda, age 12. Also present were Bruce’s son Jamie, age 7, and a friend of Angela’s, Dawn Gilbert, around 13 years of age.

Catina testified that the children fell asleep in Bruce’s bed after watching television. She recounted that she was awakened when Bruce got into bed next to her and began touching her over her clothing. She went on to describe how he kissed her, rubbed her under her clothing on her chest, touched her genitalia, and forced…

concurring specially:

Because I agree that his claim fails whether we apply Jackson as a freestanding test on habeas review or filter Jackson through AEDPA, I concur in the rejection of Bruce’s insufficient evidence claim on the former ground. I write separately, however, to express the preferable view that AEDPA requires us to evaluate state courts’ applications of Jackson for objective unreasonableness.

As the court’s opinion correctly notes, this question remains open in our circuit, see Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir.2004) (en banc), but five of our sister circuits have concluded that a sufficiency of the evidence claim presents a legal determination that must be evaluated through the AEDPA standard of review embodied in § 2254(d)(1). See Torres v. Mullin, 317 F.3d 1145, 1151-52 (10th Cir. 2003); Ponnapula v. Spitzer, 297 F.3d 172, 180 (2d Cir.2002); Sanford v. Yukins, 288 F.3d 855, 863 (6th Cir.2002); Piaskowski v. Bett, 256 F.3d 687, 691 (7th Cir.2001); Hurtado v. Tucker, 245 F.3d 7, 16 (1st *959 Cir.2001). 1 These circuits have reasoned, in the words of the Tenth Circuit, that “[t]he amendments to the habeas corpus statutes set forth in AEDPA have added an…

376 F.3d 950 Gary Dwayne BRUCE, Petitioner-Appellant, v. Cal TERHUNE; California Attorney General, Respondents-Appellees. No. 02-16992. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 4, 2003. Filed July 19, 2004. Quin Denvir, Federal Defender, and Ann C. McClintock (argued), Assistant Federal Defender, Sacramento, CA, for the petitioner-appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Erik R. Brunkal, Supervising Deputy Attorney General, Michael A. Canzoneri, Supervising Deputy Attorney General, and David A. Lowe (argued), Deputy Attorney General, Sacramento, CA, for the respondents-appellees. Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding, D.C. No. CV-00-02610-FCD. Before BROWNING, O'SCANNLAIN, and FISHER, Circuit Judges. PER CURIAM. 1 In this appeal from the denial of a petition for a writ of habeas corpus arising out of a prosecution for lewd and lascivious conduct with a child, we must decide whether the state court unreasonably applied clearly…