                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CLIFFORD LAMERE,                          
               Plaintiff-Appellant,
               v.                                No. 05-35588
WILLIAM SLAUGHTER, Director,                      D.C. No.
                                               CV-04-00032-CSO
Department of Corrections; MIKE
MAHONEY, Warden, Montana State                    OPINION
Prison,
            Defendants-Appellees.
                                          
        Appeal from the United States District Court
                 for the District of Montana
        Carolyn S. Ostby, Magistrate Judge, Presiding

                    Argued and Submitted
                May 4, 2006—Portland, Oregon

                      Filed August 8, 2006

   Before: A. Wallace Tashima and William A. Fletcher,
Circuit Judges, and Louis H. Pollak,* Senior District Judge.

            Opinion by Judge William A. Fletcher




   *The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                9091
                     LAMERE v. SLAUGHTER                  9093


                         COUNSEL

Chad Wright, Helena, Montana, for the appellant.

Ilka Becker, Office of the Montana Attorney General, Helena,
Montana, for the appellees.


                         OPINION

W. FLETCHER, Circuit Judge:

   Petitioner Clifford LaMere seeks a writ of habeas corpus
under 28 U.S.C. § 2254. In his state court trial, LaMere
unsuccessfully moved for a directed verdict of acquittal at the
close of the State’s case-in-chief, as he was permitted to do
under Montana law. He contends that he is entitled to habeas
relief under In re Winship, 397 U.S. 358 (1970), and Jackson
v. Virginia, 443 U.S. 307 (1979), because the State failed to
introduce sufficient evidence of his guilt during its case-in-
chief. We conclude that Winship and Jackson do not apply to
a motion for directed verdict of acquittal at the close of the
State’s case-in-chief. We therefore affirm the district court’s
denial of the writ.

              I.   Facts and Proceedings Below

  On March 13, 1997, petitioner LaMere killed Steven
Brownlee in an alley behind Brownlee’s apartment in Great
9094                LAMERE v. SLAUGHTER
Falls, Montana. LaMere admitted that he killed Brownlee but
disputed the circumstances of the killing.

   LaMere had two jury trials in Montana state court. During
the first trial, LaMere, a Native American, argued that he had
acted in self defense. The jury acquitted LaMere of deliberate
homicide, but convicted him of mitigated deliberate homicide.
The Montana Supreme Court reversed this conviction, hold-
ing that the court clerk had violated Mont. Code Ann. § 3-15-
505 (1997) by summoning jurors by telephone, with the result
that Native Americans were under-represented in the venire.
State v. LaMere, 2 P.3d 204 (Mont. 2000).

   Because LaMere had been acquitted of deliberate homicide
in his first trial, the State charged only mitigated deliberate
homicide on retrial. At the time of the second trial, mitigated
deliberate homicide was defined under Montana law as delib-
erate homicide committed “under the influence of extreme
mental or emotional stress for which there is a reasonable
explanation or excuse.” Mont. Code Ann. § 45-5-103(1)
(1997).

   At the second trial, several witnesses provided testimony
relevant to “extreme mental or emotional stress for which
there is reasonable explanation or excuse” during the State’s
case-in-chief. Julie Jorgensen, a neighbor, testified that she
had driven her car past LaMere and Brownlee before the
physical altercation began. She testified that the two men
“looked like they were angry,” and that “they started to like
walk around each other like men sometimes do before they
get into a fight.”

   Another neighbor, Lawrence Colwell, testified that he saw
LaMere repeatedly strike Brownlee with his fists and that
Brownlee “never struck a blow.” Colwell testified that
Brownlee fell to the ground twice, and that LaMere hit and
kicked Brownlee while he was on the ground. Colwell testi-
fied that he never saw a weapon. On cross-examination, Col-
                     LAMERE v. SLAUGHTER                   9095
well admitted that he had “probably” told Great Falls police
detective Dan Ingersoll in a statement tape-recorded a month
after the killing that both men were striking blows — “that
they were just kind of halfheartedly thumping each other.”

   Detective Ingersoll testified that Colwell had said in his
tape-recorded statement that “he had observed two individuals
in the alley fighting.” According to Ingersoll, Colwell “de-
scribed it as a couple of drunks having a disagreement,” and
“said they were kind of fighting each other, wrestling
around.” A toxicologist testified that Brownlee had a signifi-
cant level of alcohol in his blood at the time of his death.

   Great Falls police detective Steve Lohse testified that
LaMere had made a voluntary statement immediately after his
arrest. Lohse testified that LaMere had told him that “the guy
pulled a gun and that they fought and wrestled. He got the gun
away and then he did something, they put the gun in a truck
and then the guy pulled a knife. And then he said he got the
knife away from the guy and stabbed the guy.”

   At the close of the State’s case-in-chief, LaMere moved for
a directed verdict of acquittal. He contended that the State had
the burden under state law of proving beyond a reasonable
doubt that he had been acting under “extreme mental or emo-
tional stress,” and that the State had not carried its burden.
The state trial court denied the motion. After the denial of his
motion, LaMere put on his evidence, consisting primarily of
LaMere’s own testimony, as well as testimony by local bar-
tenders describing Brownlee’s aggressive behavior when he
became intoxicated.

   The second jury convicted LaMere of mitigated deliberate
homicide. LaMere appealed to the Montana Supreme Court,
contending, inter alia, that the trial court should have granted
his motion for a directed verdict under In re Winship. The
Montana Supreme Court held under state law that when the
State charged mitigated deliberate homicide rather than delib-
9096                 LAMERE v. SLAUGHTER
erate homicide, the State rather than the defendant had the
burden of proving “extreme mental or emotional stress”
beyond a reasonable doubt. State v. LaMere, 67 P.3d 192,
195-96 (Mont. 2003). Applying state law and relying on the
testimony described above, the Montana Supreme Court held
that the trial court did not abuse its discretion in denying
LaMere’s motion for a directed verdict of acquittal. Id. at 197.
The Montana Supreme Court did not mention Winship or
Jackson.

   LaMere then sought a writ of habeas corpus under 28
U.S.C. § 2254. He contended in the district court that because
Montana allows a criminal defendant to move for a directed
verdict of acquittal at the close of the State’s case-in-chief, he
was entitled to habeas relief under Winship and Jackson based
on an analysis of the sufficiency of the State’s evidence of
“extreme mental or emotional stress” presented during its
case-in-chief. Alternatively, he contended that he was entitled
to relief under Winship and Jackson based on an analysis of
the sufficiency of all of the evidence presented at trial. The
district court rejected both contentions and denied the writ.

  The district court granted a certificate of appealability
(“COA”) on the following question: “whether the federal
court’s review [of the sufficiency of the evidence] must be
confined to the State’s case-in-chief or, alternatively stated,
whether the federal court may also consider evidence pre-
sented by LaMere in his case-in-chief.”

                   II.   Standard of Review

   We review de novo a district court’s decision denying a 28
U.S.C. § 2254 petition. See Luna v. Cambra, 306 F.3d 954,
959 (9th Cir. 2002), as amended 311 F.3d 928 (9th Cir. 2002).
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a district court may only grant habeas
relief if the state court’s decision was contrary to, or involved
an unreasonable application of, clearly established federal law
                     LAMERE v. SLAUGHTER                    9097
as determined by the United States Supreme Court. 28 U.S.C.
§2254(d)(1); Williams v. Taylor, 529 U.S. 362, 407-09
(2000).

                        III.   Analysis

   LaMere contends that when reviewing the sufficiency of
the evidence under Winship and Jackson, the district court
should have looked only to the evidence in the record at the
time he made his motion for a directed verdict of acquittal.
LaMere does not argue that there is a free-standing federal
due process right to a directed verdict of acquittal at the close
of the State’s case-in-chief, or that there is a free-standing
right to federal habeas review of the sufficiency of the evi-
dence at that point in the trial. Rather, LaMere argues that
because Montana has authorized a motion for a directed ver-
dict of acquittal at the conclusion of the State’s case-in-chief,
he is entitled under Winship and Jackson to federal habeas
corpus review of the sufficiency of the evidence at the time
he makes that motion.

   [1] If LaMere is correct, in all cases where defendants have
made mid-trial motions for directed verdicts of acquittal, a
federal habeas court would be required under Winship and
Jackson to evaluate the sufficiency of the evidence not only
based on all of the evidence presented at trial, but also based
on the evidence presented by the State in its case-in-chief. We
are unable to find any United States Supreme Court decision
supporting LaMere’s contention. Motions for directed verdict
of acquittal have long been available in criminal cases, in both
federal and state court. See , e.g., United States v. Calderon,
348 U.S. 160, 164 & n.1 (1954) (discussing federal proce-
dure); Smith v. Massachusetts, 543 U.S. 462, 472 (2005) (dis-
cussing state procedures). But the United States Supreme
Court has never suggested, let alone held, that in a case in
which both sides have presented evidence a federal habeas
court should confine its analysis to the evidence presented by
the State during its case-in-chief. For example, in Jackson, the
9098                 LAMERE v. SLAUGHTER
case upon which LaMere principally relies, the Court evalu-
ated all of the evidence presented in the case, not merely the
evidence presented by the State. 443 U.S. at 324-26.

  [2] So far as we are aware, the Seventh Circuit is the only
court of appeals to have addressed a contention similar to
LaMere’s. See Hernandez v. Cowan, 200 F.3d 995 (7th Cir.
2000). In rejecting that contention, the court wrote:

    No doubt the denial [of the motion for a directed ver-
    dict] was erroneous under state law, for no reason-
    able jury could have convicted Hernandez on Cruz’s
    evidence alone; but we cannot find any basis in fed-
    eral constitutional law as laid down by the U.S.
    Supreme Court . . . for the proposition that due pro-
    cess is violated by the denial of a motion to acquit
    in the middle of the case.

Id. at 998. We agree with the Seventh Circuit, and we hold
that the district court correctly concluded that it should evalu-
ate the sufficiency of the evidence against LaMere under Win-
ship and Jackson based on all of the evidence presented in the
case.

   We will assume arguendo that the COA includes the ques-
tion of whether the district court properly concluded, based on
all of the evidence presented in the case, that Winship and
Jackson were satisfied. We hold that the district court prop-
erly concluded that “a rational trier of fact could have found
proof of guilt beyond a reasonable doubt,” Jackson, 443 U.S.
at 324, that LaMere did kill Brownlee while “under the influ-
ence of extreme mental or emotional stress for which there
[wa]s a reasonable explanation or excuse.” Mont. Code Ann.
§ 45-5-103(1) (1997).

                          Conclusion

  [3] We hold that in deciding whether to grant a writ of
habeas corpus under 28 U.S.C. § 2254, a federal court evalu-
                    LAMERE v. SLAUGHTER                 9099
ating the evidence under In re Winship and Jackson v. Vir-
ginia should take into consideration all of the evidence
presented at trial. Based on all of the evidence presented in
this case, the district court properly denied the writ.

  AFFIRMED.
