Smith v. Mitchell

This case is before us on remand from the Supreme Court for the second time. We reiterate the facts and course of litigation very briefly; a fuller exposition may be found in our earlier opinions and orders that we cite here.

I

Shirley Ree Smith was convicted in California state court of assault on a child resulting in death. The state court of appeal affirmed her conviction, and the California Supreme Court denied review. Smith then filed a federal habeas petition claiming that her conviction violated due process because the evidence was constitutionally insufficient. The district court denied the petition and Smith appealed. We reversed and directed issuance of the writ. Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006). We held that no rational trier of fact could have found beyond a reasonable doubt that Smith caused the child’s death, and that the state court’s affirmance of Smith’s conviction was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Smith, 437 F.3d at 890 .

The State’s petition for panel and en banc rehearing was denied, Smith v. Mitchell, 453 F.3d 1203 (9th Cir.2006), and the State filed a…