F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

K I M B E R L Y L O U I S E L O

N G , Petitioner-Appellant

,

v.

D E B O R A H K. J O H

N S O N , W arden, Respondent-Appellee

. No. 12-55820

D.C. No. 5:10-cv-00277-PSG-SP

ORDER AND OPI NI ON

A ppeal from the United States District Court for the Central District of California Philip S. Gutierrez , District J udg e, Presiding

Arg ued and Submitted J uly 8, 2013—Pasadena, California

F iled December 2, 2013

B e fore: Susan P. Graber, J ohnnie B . Rawlinson, and Paul J . W atford, Circuit J udg es.

Order; Opinion by

J udg e Graber; Concurrence by J udg e W atfordL O N G V

. J O H

N S O N 2

SUMMARY *

Habeas Corpus

T h e panel redesig nated its Memorandum Disposition

, filed J uly 24, 2013, as an authored opinio n w ith modifications, and denied a p etition f or panel re h e a ri ng a

nd for rehearing en banc as moot.

The p anel affirmed the district c ourt’s denial of a 28 U.S.C. § 2254 habeas corpus petition challeng ing a murder conviction. T he panel held that, viewing the evidence in the lig ht most favorable to the prosecution, the California Court of Appeal reasonably held that a rational jury could find bey ond a reasonable doubt that petitioner murdered her livein boy friend.

J udg e W a t f

ord concurred, but had “g rave doubts” about whether the state has convicted the r ig ht person, based on the timing of events and the fact that the only witness who placed petitioner at her home e a

rly enoug h to commit the crime a nd eliminate all traces of her involvement never testified at trial.

COUNSEL

Alex a nder Simpson (arg

ued) and A l i s s a B

j e rkhoel, California I nnoce n c e Project, San Dieg o, California, for PetitionerAppellant.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L O N G V

. J O H

N S O N 3

Arlene A. Sevidal, De p u t y Attorney General (arg ued), Kamala D. Harris, Attorney G eneral of California, J ulie L

. Garland, Senior A s s istant Attorney General, a nd Kevin Vienna, Supervising D eputy A t t o r n e y General, for Respondent-Appellee.

ORDER

The Memor andum disposition filed J uly 24, 2013, is redesig nated as an authored opinion by J udg e Graber, with modifications. The opinion i s to be filed concurrently with this order.

Appellant’s petition for panel rehearing a nd petition for rehearing en banc filed Aug ust 7, 2013, are DENIED a s moot. T he time for filing a petition f or rehearing and petition for rehearing en banc shall start anew a s of the filed date o f the opinion.

OP INION

GRAB ER, Circuit J udg e:

A jury convicted Petitioner Kimberly L ouise L on g o f

s e c ond-deg ree murder f or the b ludg eoning death of h e r boy frie nd, Oswald “Oz z y ” Conde, in the home that they shared. The C a l i fornia state c ourts affirmed her conviction

on appeal, and t he federal district c ourt then denied her petition f or a writ of habeas corpus. I n this court, Petitioner
arg ues that the d i s t r i c t court erred because the evidence adduced at t rial was insufficient to permit a rational jury toL O N G V

. J O H

N S O N 4

find her g u ilty bey ond a reasonable doubt. Reviewing de

novo the district court’s decision to deny the peti t i on for a writ of habeas corpus, Lambert v. Blodgett

, 393 F .3d 943, 964 (9th Cir. 2004), we affirm.

STATEMENT OF F ACTS

Petitioner and her boy fr i e n d C onde lived tog ether. On October 5, 2003, Petitioner, Conde, and their friend J effrey Dills 1 spent the day r iding motorcy cles a nd drinking heavily

. W h ile a t a b ar, Petitioner and Cond e a r gued about her flirtatiousness toward other men. Petitioner b e c ame upset and rode to her house with a f riend of Dills’. Dills and Conde followed separately on their motorcy cles. W hen Conde arrived home, he continued the arg ument with Petitioner in their driveway

. Petitioner was still very ang ry because Conde had embarrassed her in front of other people. She p ushed a nd
y elled at Conde and told him that he was a “ loser” who h ad

no job and did not pay his f air share a

n d that she wanted him
out of her house. Petitioner h it Cond e with her hand, her
purse, her motorcy cle helmet, and a novelty h at that she was carry ing

, and then threw thing s at him. 2 Dill s became

1 Dills d i e d in a m o to rcy cle accid en t af ter th e p relim i n ary h earin g b u t b ef o re th e trial. H is p relim in a r y h earin g testim on y w as read to th e j u ry

. T h e p ro priety

o f th at p ro ced u

re is n ot ch allen g ed h ere.

2 T h ere also w as ev id en ce th at P etitio n er h ad b een p h y sically v io len t

w ith C o n d e i n th e p ast. F o r ex am p l e, o n e o f Co n d e’ s ch ild ren to ld th e p o lice th at P etitio n er on ce pu n ch ed C o n de in th e f ace, leav in g h im w i th

a b lo o d y n o se. In ad d itio n , P etitio n er’ s ex

- h u sb an d

, J o e B u g arsk i, testif ied th at, du rin g o n e arg u m en t, P etitio n er tack led B u g arsk i o f f h is b icy cle, af

ter w h ich h e slap p ed h er, an d sh e h it h im in th e h ead w ith a

co rd less p h o n e an d retriev ed a b u tter k n if e w ith w h ich s h e t h reaten ed h i m

. On an o th er o ccasi o n , P etitio n er th rew a p late o f f o o d at h er ex

- h u sb an d

an d th reaten ed h im

w ith a b aseb all b at.L O N G V

. J O H

N S O N 5

concerned that Conde mig ht h it Petitioner back, so he stepped between them. Petitioner decided t o d e part with Dills, a nd they left for his house.

At Dills’ house, Petitio n er a nd Dills had a drink and g ot into his spa. She continued to complain about Conde ’ s not pay ing his share. Then she and Dills had a sex ual encounter, which she ended abruptly by t elling D ills that she had to return home because she had fo r gotten that her ex -husband

was supposed t o d

rop off their children, even thoug h she knew th a t t his was not true. W hile Petitioner dressed, she said that she was so mad at Conde she could “kick his ass.”

Dills estimated that he d

ropped Petitioner off at her h ouse between 1:20 and 1 : 3 0 a

. m

. on October 6, 2003. A s he approached the h ouse, Dills turned off his motorcy cle a nd coasted, so as not to awaken Conde or the n e i ghbors. Petitioner could not find her cell phone. Di l l s turned his headlig ht u

p into the bushes, where Pe t i t i o n er had thrown thing s at Conde e arlier, to h elp her find the phone. Dills then watched her enter the house throug h t h e f r o n t door and saw he r silhouetted inside the house. Dills drove away a nd returned to h is own home, where he noticed, while setting an alarm, that it was 1:36 a.m. The trip from Petitioner’s h ouse to D ills’ house was two a nd a half to three miles and took 10
to 15 minutes. A neigh b o r o f Petitioner’s heard a loud motorcy c le g o ing down the road at some time between 1:20

an d 1 : 3 0 a.m. and saw the motorcy cle driving away from Petitioner’s house. 3

3 No o n e, in clu d in g P etitio n er’ s n eig h b o rs, h eard h er d o g Otto b ark o n th e n ig h t o f th e m

u rd er. H e b ark ed w

h en so m eo n e h e d i d n o t k n o w w en t

o n to h er p ro p erty

. A f

ter th e m u rd er, Otto b ark ed an d h o w led at th e p olice in v estig ato r.L O N G V

. J O H

N S O N 6

At 2:09 a.m., Petitioner called 911 to report that she h ad “just” returned home, that something had happened to Conde, that he had blood all over his f a c e , and that something h ad ha p pened to h er house. She hung u p and called back. Officers arrived at the house at 2 :14 a.m. and found Petitioner in the middle of the street, frantic. The officers did not notice
any injury to Pet i t i o n e r or any blood on her person o r clothing

.

W h en the officers went into the house they found Conde si t t i n g o n the couch, with an injury to his head. They searched the house to ensure that no one else w as present. Paramedics entered a t 2:20 a.m. and ascertain e d t h at Conde

was dead. F rom the blood c oag ula t i on and temperature a nd rig idity of his body

, they determined that he h ad not d ied within the minutes prior to th e i r a r rival. I t was later determined that Conde died from blun t f o r c e trauma to the head, caused by three to eig ht blows. The implement used

was a long

, slender object like a stick, bat, or g olf club. Any healthy adult could have inflicted the inj ury , which the

coroner determined would h ave r e n dered him u n conscious al m ost immediately and resulted in death within 2 to 20 minutes

. C o n d e was attacked where he was found, on the couch. He bore no defensive wounds.

The officers’ search revealed that the slidin g g lass door from the kitchen to the back y ard was o pen, but they found no sig ns o f f

o rc e d entry

. The spa in the back y ard was uncovered, running

, and w arm. B roken g lass, coins, a nd a cordless telephone were scattered on the kitchen floor. A hair clip, p u r s e , and c ell phone w ere on the kitchen counter. A pair of s a n d al s , a h elmet, a n d a h at sat on the floor near the couch where Conde died. A jacket and a nother hat were found o n a throw r

ug on the floor nearby

. No b lood wasL O N G V

. J O H

N S O N 7

found on any of those items. Two baseball bats near the door appeared, because of blood spatter patterns on them, to have been there at the time o f t h e murder. B lood evidence was found on the c ouch, all f o u r w a lls a

round Conde’s b ody

, a table near h im, the television, the c urtains, and a door behind
t h e c o u ch. B u t no blood was f ound in the kitchen, where Petitioner had made the p hone call after discovering Conde’s body , or in the hall leading to the bedrooms.

The search of th e h o u se and g arag e, Petitioner’s a nd Conde’s cars, the y a

rd, the immediate neig hborhood, and the nearby storm drains y ielded nothing more of evidentiary value. 4 The murder weapon was never found. Bu t Conde’s
g olf clubs and one baseball bat were not fou n d

, either; an acquaintance p reviously had seen o n e c l ub resting nex t to three baseball bats near the door, and there had been a bag o f
g olf clubs in the g arag e.

Officers took Petitioner to a police stati o n d u ring the investig ation at her home. The officer w h o s a t with her did
not notice any blood on Petitioner’s p e r s o n or clothing

. 5

4 T h e p o lice d id n o t search a strip m all, a sch o o l, o r a YMCA (in clu d in g th eir t rash d u m psters), w h ich w ere lo cated w ith in a v ery sh o rt distan ce of P etitio n er’ s h o u se.

5 T h e ab sen ce o f b lo o d o n P etitio n er w as sig n if ican t b ecau se o n e o f th e fi r st o f f icers on th e scen e testif

ied th at t h ere w as b lo o d o n th e g ro u n d b eh in d th e c o u ch

, w

h i ch w as d if

f icu l t t o av o id step p in g in

. P etitio n er testif ied th at sh e w en t in an d o u t o f th e h o u s e at least tw ice, ran f ran tically th ro u g h ou t th e h o u se, an d p u t h er h an d s o n Co n d e. A t trial, s h e testif ied th at sh e p u lled Co n d e’ s b o d y b y th e h an d so h ard th at h e “ lif ted u p.” Bu t th ere w ere n o b lo o d y track s in th e h o u se. Al t h o u g h P etitio n er testif ied
t h a t sh e rem o v ed h er sh o es an d called 9 1 1 baref o o t f ro m th e k itc h e n , w h ere b ro k en g l as s w as f

o u n d, th ere also w as n o ev i d en ce th at h er f eet

w ere cu t.L O N G V

. J O H

N S O N 8

Among other thing s, Petitioner mentioned that her house h ad b e e n ransacked and w as a mess, althoug h the police did n o t find that to be so. Petitioner also said that she checked the house and w as worried when she could not find her children, althoug h she subsequently s a id that she was not worried because she knew that they were with her ex -husband.

Police i n terviewed Petitioner on October 6, 2003, a nd
ag ain o n October 9, 2003. During the second in t e rview, officers confronted her about inconsistencies in her story a nd contradictions between what she said and the reports of others who were with her that day

. Petitioner said that she sometimes forg ot thing s that happened when she was d runk

a nd admitted that she was “fuz zy ” on some o f the d etails o f the day

. During both interviews, she told them that Conde’s

ex

- g irlfriend would have d one something like this because she had vandaliz ed their property and had made threats
ag ainst Petitioner and Conde in the past. 6

Petitioner’s account of the nig ht of th e murder was that, when she returned f

rom D ills’ house, she walked in and saw Conde ly ing on t h e couch. She knew that something was wrong , so she turned on the lig ht and saw that he was injured. She carried two party hats inside with her and k icked off her

6 A t trial, P etitio n er su g g ested th at eith er h er ex

- h u sb an d o r Co n d e’ s ex

g irlf rien d m ay h av e co m

m itted th e m

u rd er. P etitio n er’ s ex

- h u sb an d in tro d u ced ev id en ce th at h e w as asleep w ith h is g irlf rien d an d so n at h is
g irlf rien d ’ s p aren ts’ h o u se. His g irlf rien d t estif

ied th at sh e slep t on th e

o u tsid e ed g e o f th e b ed an d th at n o o n e in th e h o u se w as d istu rb ed d u rin g th e n ig h t. C o n d e’ s ex

- g irlf rien d in tro d u c e d e v id en ce th at sh e w as on a d ate th a t en d ed b etw een 1 2 : 4 5 a.m

. an d 1 :1 5 a.m

. o n th e m o rn in g of Octo b er 6
, 2 0 03
, af

ter w h i c h s h e d ro pp ed h er d ate o f f at h is h o m e in W h ittier, ab o u t 3 0 m iles f ro m P etitio n er’ s h o m e.L O N G V

. J O H

N S O N 9

shoes as she ente r e d

. 7 According to Petitioner, Conde was g urg ling

, so she thoug ht that he was breathing and called 911

on her home phone. Althoug h Petitioner was an emerg ency

room nurse ex perienced in treating head trauma, she did not render aid to Conde because she was drunk and u pset. She

ran around the house screaming

, hung up on 911, ran outside, then called 911 ag ain. Sh e t h e n r an outside a g ain, where
p olice found her. Petitioner later told the polic e t h a t a number of items were missing

, including the shotg un she k ept inside h er b edroom closet (which o nly the immediate family knew about), her car key s, 8 and the center console of what Petitioner acknowl e d ge d was a cheap stereo. None of the jewelry in the house, w h i c h was worth more than $10,000,

was taken, nor were the bass gu i t a r or flat-screen television that were sitting in plain view.

Petitioner’s story was self-contradictory in several respects. F or ex ample, a lthoug h she had told Dills t h at she

was still so ang ry that she could “kick [ C o n d e ’ s] ass,” she initially told police that she was happy to be home and happy that Conde was there. She lied about t h e s ex ual encounter with Dills. She testified that she h a d f o und her cell p h one in the bushes when Dills d

ropped her off, but told the police that she could not f

ind t he cell phone. She also admitted at trial that, during h e r i nterviews with police, she was not truthful about the level of violence that she h ad disp l a y e d toward Conde during their arg

ument on the nig ht of the murder.

7 B u t th e sh o es w ere f

o u n d f acin g th e f

ro n t d o o r, n o t aw ay

f ro m it.

8 A lth o u g h Petitio n er testif ied th at sh e n ev er f

o u n d h er car k ey s, th e j u ry

reaso n ab l y c o u l d f

in d th at th e k ey s w ith a sh am ro ck o n th em , f

o u n d h an g in g i n th e k itch en , w e re h ers, as sh e h ad sh am ro ck tatto os an d a sh am ro ck o n h er m o to rcy cle h elm et.L O N G V

. J O H

N S O N 10

PROCEDURALHI STORY

A California jury convicted Petitioner of second-degr ee murder, a violation of California Penal Code § 187. A fter deny ing h er motion for a n ew t r ial, the state trial court sentenced Petitioner to a prison term of 15 y ears to life.

Petitioner appealed her conviction and arg ued, a mong ot h e r t hing s, that the evidence was insufficient to establish that she had k illed Conde. T h e California Court of Appeal affirmed the conviction. People v. Long
, No. E039986, 2008 W L 4958 5 7 5 ( C al. Ct. App. Nov. 2 1, 2 008) (unpublished). I n response to the sufficiency challeng e, the c ourt considered “‘whether, after v i ewing the evidence in the lig ht most favorable to the prosecution, any rat i o nal trier of fact could have found the essential el e m e nts of the crime bey o nd a reasonable d oubt,’” id. at *4 (q u o ting People v. Y oung , 1 0 5 P.3d 4 87, 501–02 (Cal. 2 005)); accord J ackson v

. Virginia
, 443 U .S. 307, 319 (1979), a nd ex plained at leng th why the circumstantial evidence sufficed to permit a rational jury to find Petitioner g uilty bey ond a r easonable doubt, Long
, 2008 W L 4958575, a t *4–12. The court d e nied a petition for rehearing

. The California Supreme Court denied review.

Having ex hau s ted her claim before the state courts, Petitio n er filed a petition for writ o f habeas corpus in the federal district court. She ag ain arg ued that she w a s d e n ied due process because the evide n c e was insufficient to prove her g uilt bey ond a reasonable d oubt. T h e d istrict court h eld that the state courts’ denial of that claim was not contrary to,

nor did it involve an unre a s o n a b le a p p lication of, clearly established federal law a s determined by the United States Supreme Court, nor was it an unreasonable determination o fL O N G V

. J O H

N S O N 11

facts. A ccording ly

, under 28 U.S.C. § 2254(d), habeas relief could n ot b e g ranted, and the court dismissed the a ction with prejudice.

The district court issued a certificate of appealability on the sufficiency issue. Petitioner f iled a timely n otice o f appeal.

D I SCUSSI ON

W h en considering P etitioner’s claim premised on insufficiency of the evidence—an inqui r y g overned b y Jackson —we must view the evidence in the lig ht m o s t favorable to the prosecution. Boyer v

. Bell e q u e , 659 F .3d 957, 960 (9th Cir. 2011), cert. denied

, 132 S. Ct. 2 723 (2012). B e c a u s e this case arises in the contex t of a habeas petition filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we owe a “double d o se o f deference” to state c ourts. I d. at 964

. T h a t is, we must resolve doubts about the e v idence in favor of the prosecution and, in addition, must ex a mine the state courts’ decisions th r o u gh the lens of A EDPA. To g r ant habeas relief, “we
must conclude that the state court’s d eter m i n ation that a

r a t ional jury could have found that there was sufficie n t evidence o f g uilt

. . . was objectively unreasonable.” Id. at 965.

Th e state courts applied the c orrect law, because they

ex a mined t h e evidence under the Jackson standard. The pivotal question, then, is w h et h e r the California Court o f Appeal, which issued the last r easoned state-co u rt decision, unreasonably applied J ackson i n affirming Petitioner’s conviction for second-degr ee m urder. Boyer
, 659 F .3d at 965.L O N G V

. J O H

N S O N 12

Viewing t h e e vidence in the lig ht most favorable to the prosecution, the California Court of Appeal reasonably h eld that a rational jury could f

ind, bey ond a reasonable d o ubt, that Petitioner murdered Conde. There w as evidence from which
t h e j ury r ationally could f ind: (1) that Petitioner h a d opportunity

, because between 1:20 or 1 :30 a.m. and 2:09 a .m. (a period of 39 to 49 minutes), Petitioner coul d h a v e s truck Conde in the head, washed herself in the spa and chang ed out of her bloodied clothes, and disposed of the murd er weapon and clothes b ey ond the perimeter of the police search, before calling 9 11; (2) that Petitioner had access to a weapon, such

as the missing g olf club and th i r d b aseball bat; (3) that Petitioner’s sustained a

ng er at Conde c reated motive; 9 (4) that Petitioner’s lies to investi ga tors evidenced consciousness o f
g uilt; (5) that Petitioner attempted to make it appear, falsely

, that a robbery had o ccurred in connection w i t h the murder; (6) that Petitioner w as willing t o settle a rg u ments with violence, such as her violent confrontation with Conde earlier that d ay and her history of domestic viole n c e a g ainst Conde

a n d h e r e x -husband; ( 7) that the intruder was known to Conde, due to his lack of defensive w o u n d s , the absence o f sig ns of forced entry , a

nd the f a ct that Petitioner’s dog was not heard b arking o n the nig h t of the murder; and (8) that the
two people who

, a ccording to the d e fense, mig ht have committed the murder had solid alibis.

Althoug h the e vidence p rese n t e d at trial could y ield an alternative inference, we “must respect the e xc l u s i ve province of the [jury ] to determine the credibility of witnesses, resolve

9 In v estig ato rs f

o u n d an em

pty ch am p ag n e b o ttle an d a cu

p in th e trash
at P etitio n er’ s h o u se. T h e ch am pag n e w as bein g sav ed f

o r P eti t i o n e r ’ s b irth d ay , an d t

h e p ro secu to r t

h eo rized th at P etitio n er b ecam e an g rier w h en sh e f o u n d th at Co n d e h ad co n su m ed th e b irth d ay

ch am p ag n e.L O N G V

. J O H

N S O N 13

e v identiary conflicts, and draw reasonable inferences f r o m proven facts.” United States v

. Archdale

, 229 F .3d 861, 867 (9th Cir. 2000) (inter n a l q uotation marks omitted). And, althoug h the evidence was ci r c u m s t a n t i a l

, a conviction—even for murder—may rest solely o n such evidence. See People v

. Snow
, 65 P.3d 749, 761 (Cal. 2003) (per curiam) (holding that circumstantial evidence a lone support e d the defendant’s murder co n v i c tion); see also United States v. Cordova Barajas
, 360 F .3d 1037, 1041 (9th Cir. 2004) (hol d i n g t hat “circums t a n t ial evidence alone can be sufficient to demonstrate a defendant’s g u ilt”).

W e re we the jury

, we mig ht have entertained a reasonable doubt. Were we sitting as the reviewing court o n direct appeal, we mig ht have found the evidence to be insufficient. B ut under AEDPA, which demands double deference, we a re limited to deciding w hether the California courts unreasonably applied Jackson

. They did not.

AF F IRMED.

W A TF ORD, Circuit J udg e, concurring :

I have g r ave doubts about w hether the State has convicted the r ig ht person in this case. Those doubts stem from the fact that it would have been virtually impossible for the defendant
to commit the c r i m e and eliminate all traces of her involvement even if she had arrived h ome 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 t h a t t he only witness who placed the d e fendant at home as early a s 1:20 a.m. never actually testified at trial. T h i s w i t ness’sL O N G V

. J O H

N S O N 14

testimony w as so critical—and the State’s case so thin—that the trial judg e said he would not even have allowed the case
to g o to the jury without it. Yet the jury w as left to assess the credibility of this witness based o n a cold preliminary h earing transcript, r ather than all th e s u b t le a n d intang ible f

actors juries take into a ccou n t w h en they evaluate live testimony

, because the witness died before trial commenced.

Despite these misg iving s, I j oin 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 judg e s will sometimes encounter convictions
t h a t they b elieve to be mistaken, but that they m u s t nonetheless uphold.” Cavazos v. Smith

, 132 S. Ct. 2, 4 (2011) (per curiam).