           United States Court of Appeals
                      For the First Circuit

No. 08-1010

                        MICHAEL O'LAUGHLIN,

                      Petitioner, Appellant,

                                v.

                          STEVEN O'BRIEN,
          Superintendent, Old Colony Correctional Center,

                       Respondent, Appellee.


                              Before

                        Lynch, Chief Judge,
           Torruella, Baldock,* Boudin, Lipez and Howard,
                          Circuit Judges.

                           ORDER OF COURT
                      Entered: August 7, 2009

          The petition for rehearing having been denied by the
panel of judges who decided the case, and the petition for
rehearing en banc having been submitted to the active judges of
this court and a majority of the judges not having voted that the
case be heard en banc, it is ordered that the petition for
rehearing and the petition for rehearing en banc be denied.


                                     By the Court:

                                     /s/ Richard     Cushing   Donovan,
                                     Clerk



cc: Hon. William G. Young, Ms. Sarah Thornton, Clerk, United States
District Court for the District of Massachusetts, Mr. Katz, Mr.
Seiger, Ms. Barnett & Mr. Arguin.




     *
         Of the Tenth Circuit, sitting by designation.
           LYNCH, Chief Judge, dissenting from the denial of en banc

review. Through AEDPA, Congress has narrowly limited federal court

review of state criminal convictions. Specifically, federal habeas

relief is now unavailable to state prisoners unless the state court

adjudication of the prisoner's claim "resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States."         28 U.S.C. § 2254(d)(1).

           Here, a Massachusetts jury convicted petitioner Michael

O'Laughlin of several charges relating to the gruesome nighttime

beating of his neighbor, Annmarie Kotowski, which left her near

death.    The    Supreme      Judicial    Court    of    Massachusetts     ("SJC")

unanimously upheld that conviction, see Commonwealth v. O'Laughlin

(O'Laughlin     II),    843    N.E.2d    617    (Mass.   2006),    reversing   the

intermediate state appellate court's holding that the evidence was

insufficient, see Commonwealth v. O'Laughlin (O'Laughlin I), 830

N.E.2d 222 (Mass. App. Ct. 2005).                 The federal district court

denied O'Laughlin's habeas petition.

           Nonetheless, a panel of this court on federal habeas

review found that the evidence against O'Laughlin was insufficient

to   support    the    conviction   and    held    that    the    SJC's   contrary

determination     was     an     unreasonable       application      of   clearly

established federal law.          See O'Laughlin v. O'Brien (O'Laughlin

III), 568 F.3d 287 (1st Cir. 2009).


                                        - 2 -
          To   reach   this   result,   the   panel   opinion   applied    a

sufficiency standard that is materially different from the Supreme

Court's clearly established law under Jackson v. Virginia, 443 U.S.

307 (1979), and exceeded its narrowly defined power to review state

court criminal convictions under AEDPA.         Because the sufficiency

standard applied by the panel has consequences well beyond this

case and the panel's application of that standard to this case

upsets the congressionally defined role of federal habeas review in

our federal system, I respectfully dissent from the denial of en

banc review.

                                   I.

          Around 2:00 a.m. on November 17, 2000, Kotowski was

severely beaten in her apartment by an assailant whom she could not

later identify because of the memory loss she suffered as a result

of the attack.    The assailant nearly killed Kotowski, breaking

almost every bone in her skull, as well as several in her hands.

The evidence supported the prosecution's theory that Kotowski had

awakened to find her assailant in the apartment and had been beaten

to prevent her from identifying her assailant.             Kotowski knew

O'Laughlin; indeed, she had been cool to his interest in her.

          O'Laughlin had the means to perpetrate this attack.             He

lived only two doors down from Kotowski and, as a maintenance

worker in the apartment complex, had a key to Kotowski's apartment,

had been there, and knew the apartment's layout.           That level of


                                 - 3 -
access was necessary to commit the crime because the police found

no signs of forced entry into Kotowski's apartment.        Additionally,

the police found a weapon that could have been used in the attack

-- a baseball bat with O'Laughlin's name inscribed on the barrel --

hidden under some leaves in the woods behind the apartment complex.

Moreover, the police encountered O'Laughlin near the scene of the

crime just minutes after the attack and noticed the next day that

he had a cut on his face and a bruise below his left ear, which

were consistent with being involved in a struggle.

           O'Laughlin also had a motive.          He had smoked crack

cocaine in the hours before the attack and had called several drug

dealers from the telephone in his apartment only minutes before the

attack, desperately seeking more drugs. O'Laughlin had no money to

buy more drugs that night, and he thought that Kotowski was well

off from seeing her apartment.     Although Kotowski's attacker took

nothing from the apartment, police found her purse on the floor

near the bathroom.    Kotowski testified that she typically kept her

purse on the inside handle of her bedroom door.          The prosecution

argued   that   Kotowski's   attacker   left   without   taking   anything

because, during the attack, he had heard Kotowski's upstairs

neighbor get to the phone and speak, and feared that the police

were on the way.      The police reenacted the upstairs neighbor's

telephone call and determined that a person in Kotowski's apartment

could hear that the upstairs neighbor was speaking on the phone.


                                 - 4 -
            O'Laughlin also demonstrated a consciousness of guilt.

He appeared "uneasy and distant" when the police encountered him

outside shortly after 2:00 a.m. in near-freezing temperatures

wearing nothing but his boxer shorts.          O'Laughlin told the police

a series of lies and repeatedly shifted his story as to what he was

doing on the night of the attack.          When O'Laughlin encountered the

police shortly after the attack, they told him they had been unable

to locate unit 202, the apartment of the upstairs neighbor who had

called the police.         O'Laughlin, who knew that the units had

recently been renumbered and that unit 202 was now unit 16, did not

disclose that information to the officers.           Rather, he misdirected

them by changing their focus to purported animal noises he had

heard    coming   from   the   dumpster,    where   the   police     then   went.

Finding nothing of interest in the dumpster, the police decided to

leave.    When the police returned to the apartment complex the next

day, O'Laughlin refused to let the police swab what appeared to be

a blood stain in his apartment and cleaned up the stain before

allowing    the   police   to   return.       And   he    gave   a   number    of

inconsistent, and sometimes inherently incredible, statements about

the events of that night.

            A primary defense theory was that Kotowski's estranged

husband, not the defendant, had committed the assault. The husband

testified, and the jury rejected that theory.




                                    - 5 -
                                        II.

             The state's petition for rehearing en banc presents what

is essentially a three part argument: (1) that the panel has

articulated and applied a new sufficiency of evidence test, which

is not clearly established law from the Supreme Court and is, in

fact, inconsistent with Jackson; (2) that the panel decision

otherwise violates AEDPA's strictures that relief may be granted

only where the state court engages in an "unreasonable application"

of clearly established federal law; and (3) that the panel has,

contrary to Jackson, failed to look to the totality of the evidence

and has failed to draw all inferences in favor of the verdict as

required.      All    three    aspects      of   the   state's   petition      raise

significant issues of law, which in my view warrant rehearing en

banc.

             Before addressing the merits of the state's arguments, it

is important to set forth the basic framework for our review.                    We

owe deference to the state court proceedings on two levels. First,

because O'Laughlin's core argument is to the sufficiency of the

evidence, we must uphold the jury's verdict unless "it can be said

that no rational trier of fact could find guilt beyond a reasonable

doubt."     Jackson, 443 U.S. at 317.            In making this determination,

we   view    the    evidence     in   the    light     most   favorable   to    the

prosecution.       Id. at 319.




                                       - 6 -
            Second, we review O'Laughlin's sufficiency challenge

through the lens of federal habeas review.                   Under the federal

habeas statute, we must presume the correctness of all factual

determinations made by the state court, see 28 U.S.C. § 2254(e)(1),

and may grant the writ only if the state court's decision was

"contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States," id. § 2254(d)(1).            Under this standard, we must

uphold even state court decisions that are incorrect so long as

they are reasonable.        See Williams v. Taylor, 529 U.S. 362, 410

(2000) ("For purposes of today's opinion, the most important point

is that an unreasonable application of federal law is different

from   an   incorrect     application   of    federal    law."   (emphasis    in

original)); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007)

("The question under AEDPA is not whether a federal court believes

the state court's determination was incorrect but whether that

determination       was   unreasonable       --   a    substantially      higher

threshold.").

            Thus,    to   prevail,   O'Laughlin       must    make   a   two-fold

showing: (1) that no reasonable juror could have voted to convict;

and (2) that the contrary view of the state court was not only

wrong but unreasonable.




                                     - 7 -
A.          The Proper Test for Assessing a Sufficiency Challenge

            The panel's opinion applied the Sixth Circuit's test for

sufficiency, which holds that if the jury's verdict rested on

"circumstantial evidence . . . [that] amounts to only a reasonable

speculation," it must be vacated.           See O'Laughlin III, 568 F.3d at

302 (quoting Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008),

petition for cert. filed, 77 U.S.L.W. 3645 (U.S. May 12, 2009) (No.

08-1401)).        The panel opinion opened its evaluation of the SJC's

opinion by quoting from and implicitly adopting the Newman test.

It then said that test was met in this case, repeated the term

"reasonable speculation," and drew heavily on Newman, giving it

four pages of discussion.

            "Reasonable speculation" is not the standard the Supreme

Court has articulated to assess evidentiary sufficiency under

Jackson.      Instead, the Jackson standard asks "whether, after

viewing     the    evidence     in    the   light   most    favorable   to   the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."                  443

U.S.   at   319     (emphasis    in    original).     The    term   "reasonable

speculation" appears nowhere in Jackson or in any of the Supreme

Court's sufficiency jurisprudence.              Indeed, until the panel's

opinion in this case, the Sixth Circuit was the only circuit to use

that standard.




                                       - 8 -
             The   "reasonable    speculation"    standard    is   materially

different     from   the   Jackson     standard   in   that   it    prohibits

convictions from resting on reasonable inferences drawn from the

evidence.1     This new standard strongly disfavors circumstantial

evidence,2    contrary     to   our   long-standing    recognition    that   a

criminal conviction may rest on circumstantial evidence alone. See

United States v. Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir. 2007)

("[C]ircumstantial evidence alone may be sufficient to provide a

basis for conviction."); see also United States v. Downs-Moses, 329

F.3d 253, 261 (1st Cir. 2003) ("[W]e do not favor direct evidence

over circumstantial evidence, as either type of evidence may

satisfactorily support a conviction.").

             This devaluation of circumstantial evidence by a federal

habeas court has sweeping implications.            The government relies

heavily on circumstantial evidence to prove cases where direct

witness testimony about the commission of a crime is unavailable.

This is particularly true in domestic and acquaintance violence

prosecutions, where the victims, who often have the only direct

evidence of their abusers' guilt, are left unable to testify or


     1
        The term "reasonable speculation" contains an inherent
conflict.   Recognizing that a conclusion rests on speculation
suggests that the inferences upon which it is based are
unreasonable.
     2
       The dichotomy drawn by the panel between circumstantial and
direct evidence is questionable.      Convictions often rest on
inferences which are drawn from direct testimony, as well as
circumstantial evidence.

                                      - 9 -
they recant or refuse to cooperate.     See T. Linger, Prosecuting

Batterers After Crawford, 91 Va. L. Rev. 747, 768 (2005) ("Recent

evidence suggests that 80 to 85 percent of battered women will

recant at some point.").    The panel's "reasonable speculation"

rule, which substantially discounts the power of circumstantial

evidence, jeopardizes these and other prosecutions where the only

evidence of the defendant's guilt is circumstantial.

          In addition to the infirmities in the substance of the

"reasonable speculation" rule, the panel's use of another circuit

court's precedent to grant habeas relief is troubling given AEDPA's

requirement that the state court's error be measured against

"clearly established Federal law, as determined by the Supreme

Court of the United States."     28 U.S.C. § 2254(d)(1) (emphasis

added). Indeed, the Supreme Court has repeatedly cautioned that if

it has not recognized a particular circuit court legal standard, a

state court's failure to follow that standard cannot compel the

grant of habeas relief.   See, e.g., Knowles v. Mirzayance, 129 S.

Ct. 1411, 1419 (2009) (holding that federal habeas relief is

unavailable based upon the application of "a specific legal rule

that has not been squarely established by this Court."); Carey v.

Musladin, 549 U.S. 70, 76-77 (2006) (same).

B.        Limitations Under AEDPA

          The panel opinion's analysis of the reasonableness of the

SJC's opinion substantially departed from the level of deference


                               - 10 -
for the determinations of the state courts that Congress and the

Supreme Court have provided the federal courts under AEDPA.3                 The

panel opinion states that the SJC's sufficiency determination was

unreasonable because: (1) O'Laughlin's prior contacts with Kotowski

were minimal; (2) the facts here "do[] not align" with a robbery

motive; (3) the prosecution's weapon was "merely 'consistent'" with

Kotowski's   injuries;    (4)   the   motive   evidence   here    was    "mere

conjecture"; (5) O'Laughlin was not caught in a lie and did not

flee the scene; and (6) the evidence of consciousness of guilt was

"bare conjecture."    O'Laughlin III, 568 F.3d at 306-08.             At most,

these examples amount to a disagreement as to the weight particular

pieces of evidence should receive and the inferences to be drawn

from them.   But a state prisoner is not entitled to habeas relief

under AEDPA merely because a federal court disagrees with the state

court's assessment of the evidence.        See Williams, 529 U.S. at 410

(recognizing   that   a   state   court's      determination     is    not    an

unreasonable application of law merely because it is erroneous).

The state court's determination must be so incorrect as to be an


     3
         The result of this case -- a federal appeals court
reversing the state's highest court on the question of evidentiary
sufficiency in a criminal prosecution -- is also surprising given
the SJC's historically favorable treatment of criminal defendants.
Indeed, the SJC often extends criminal defendants greater
protections than those required under the federal Constitution.
See, e.g., Commonwealth v. Gomes, 903 N.E.2d 567 (Mass. 2009)
(limiting the police's power to pat frisk suspected drug dealers
for weapons); Commonwealth v. Mavredakis, 725 N.E.2d 169 (Mass.
2000) (holding that the police have a duty to inform a criminal
defendant of his lawyer's efforts to contact him).

                                  - 11 -
unreasonable application of law, which is "a substantially higher

threshold."     Schriro, 550 U.S. at 473.

              The state's petition for rehearing argues that en banc

review should be granted in this case because it is part of an

emerging pattern of non-compliance with AEDPA where the federal

courts   of     appeals    have     been     granting   habeas     relief      in

circumstantial evidence cases.            See Newman, 543 F.3d at 796; see

also Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008), cert. granted

sub nom, McDaniel v. Brown, 129 S. Ct. 1038 (2009).

              Having read the record before the federal court, I am

convinced that the SJC's holding on the sufficiency issue was not

only a reasonable application of Jackson but also entirely correct

under the Jackson standard. The SJC's seventeen-page opinion shows

there was a detailed review of the trial record by the justices and

articulates and applies the correct constitutional standard for

sufficiency of the evidence.

              I start with the SJC's finding that O'Laughlin had a

financial motive for breaking into the unit, which led to the

attack   on    Kotowski.    The     SJC    explained:   "The    defendant     had

purchased crack cocaine on two different occasions on the evening

of November 16 and had been ingesting drugs and beer all night.                He

had run out of both drugs and money later in the evening and was

desperately seeking to obtain more drugs."              O'Laughlin II, 843

N.E.2d   at    627.   In   short,    O'Laughlin    needed      money,   and   the


                                    - 12 -
prosecution put on evidence that O'Laughlin suspected Kotowski was

well off and a potential source of funding.

          The panel opinion, however, dismissed robbery as a motive

because Kotowski's assailant took nothing from the apartment.   See

O'Laughlin III, 568 F.3d at 306.   But as the SJC explained, this

motive was not negated by the fact that the assailant ultimately

took nothing.    It held that the attacker could well have been

frightened off before he took anything by the sounds of the

upstairs neighbor speaking with the police on the phone as the

attack took place.    See O'Laughlin II, 843 N.E.2d at 627 n.11.

This explanation is quite reasonable and has evidentiary support.

Indeed, a reenactment of the police phone call demonstrated that a

person in Kotowski's apartment could hear the neighbor walking

around upstairs and speaking on the phone.    And the location where

the police found Kotowski's purse also supports this theory.

          The panel opinion also attempts to dismiss the SJC's

finding that O'Laughlin had the means to commit the crime because

he had a master key and there were no signs of forced entry by

saying that others had a master key and that the victim could have

let her assailant into the apartment. See O'Laughlin III, 568 F.3d

at 302.   These alternative explanations are, of course, possible.

But to credit them requires that the court draw inferences against

the jury's verdict, which it may not do under Jackson.    And in any




                              - 13 -
event, these alternative theories in no way diminish the SJC's

finding that O'Laughlin had the means to commit the crime.

            There is no need to catalog the entire array of the panel

opinion's    disagreements   with   the   SJC's    rational     inferences.

Instead, I will focus on the panel opinion's primary disagreement

with the SJC, which relates to the appropriate weight to give the

evidence    of   O'Laughlin's   consciousness     of   guilt.     The   SJC

characterized this as the strongest evidence of O'Laughlin's guilt.

See O'Laughlin II, 843 N.E.2d at 627-28.               The panel opinion,

however, found this evidence "minimally probative."             O'Laughlin

III, 568 F.3d at 303.

            The SJC's conclusion that there was strong evidence of

consciousness of guilt is both correct and entirely supported by a

reasonable application of Jackson.        O'Laughlin gave the police a

series of differing accounts as to his activities that night, which

a jury could easily conclude were untrue and implausible. The jury

could reasonably infer the following.             When the police first

encountered O'Laughlin after 2:00 a.m. outside in his boxer shorts

in near-freezing weather,4 O'Laughlin appeared "uneasy and distant"

and lied to the police by saying that he was asleep and had been



     4
       The prosecution argued that O'Laughlin came outside wearing
only boxer shorts on such a cold night because he had stripped off
his bloody clothes just before the police arrived.       After the
police left that night, O'Laughlin had several hours during which
he could have disposed of any bloody clothing and any weapon before
the police returned the next morning.

                                 - 14 -
awakened by the sound of screaming.              When O'Laughlin was asked

where the screaming was coming from after the police were unable to

locate unit 202, O'Laughlin altered his position and said he

thought the screaming might have been a racoon that had gotten

stuck in the dumpster and explained that he had placed a stick in

the dumpster to allow the animal to escape.               This misdirection,

along   with     O'Laughlin's   failure     to   inform   the    police      of   the

apartment complex's new unit numbering, distracted the police away

from the victim's apartment.

            The next day, O'Laughlin gave the police a different

account, saying that he had been asleep but was awakened by the

sound of the police cruisers arriving (not screaming) and so went

out   in   the   freezing   cold   nearly    unclothed.         He   later    again

recharacterized his actions, claiming again to have been sleeping

until he was awakened by screaming from animals (foxes or racoons)

fighting.

            In fact, O'Laughlin's telephone records indicated that he

had been on the phone frequently just minutes before the police

arrived.       His accounts that he had been sleeping were a lie.

O'Laughlin later also lied in order to explain away those phone

calls in a letter he sent to the building manager, saying that an

intruder into his unit had placed those calls from his apartment

while he slept. A jury could reasonable conclude that O'Laughlin's




                                    - 15 -
shifting stories and overt lies demonstrated a strong consciousness

of guilt.

            Also damning are O'Laughlin's efforts to remove what he

described as a blood stain from the door of his closet.         When

police noticed the stain and requested to take a sample, O'Laughlin

withdrew his consent to have his apartment searched.       After the

police left, O'Laughlin wiped up the stain with his finger and

saliva.

            It was only when the police returned to his apartment and

threatened to get a search warrant that he consented to allow the

police to search his apartment again.     By then, he had wiped away

the stain.

            O'Laughlin's explanation that his behavior was motivated

by a concern that the police would discover his drug paraphernalia

could be rationally rejected as entirely inconsistent with the fact

of both consents.   Moreover, the police assured O'Laughlin that he

would not be prosecuted for any drug crimes if he voluntarily

surrendered any contraband to the police, further reducing the

credibility of O'Laughlin's explanation for his reluctance.

            Whether a state court decision represents an unreasonable

application of clearly established federal law is a difficult

judgment for a federal court to make.          The need for better

articulation of the legal standards for making that judgment,

particularly where the record is largely circumstantial, in my


                                - 16 -
view, constitutes an appropriate basis on which to grant en banc

review.

C.          The Panel Opinion's Method of Analysis

            More    fundamentally,      the    panel    opinion's      method      of

analysis sets a dangerous precedent because it draws inferences

against the jury's verdict and it takes a piecemeal approach to

analyzing the evidence.      That is, the panel opinion's approach to

the   sufficiency    question    in    operation    amounts       to   a   de    novo

assessment of the record through which the court substitutes its

own independent assessment of the record for the jury's evaluation.

This sort of analysis should be foreign to an appellate court,

which has access only to a cold record.            And it is a particularly

dangerous   exercise    in   a   case    like   this,     where    much     of    the

prosecution's case depended on the testimony of witnesses and an

assessment of the credibility of those witnesses.

            Under    Jackson,    an     appellate       court     considering       a

sufficiency challenge is not on an equal footing with the jury.

Instead, "the factfinder's role as weigher of the evidence is

preserved through a legal conclusion that upon judicial review all

of the evidence is to be considered in the light most favorable to

the prosecution." Jackson, 443 U.S. at 319 (emphasis in original).

            The panel opinion, however, fails to respect the role of

the jury in deciding which evidence to credit and what reasonable

inferences to draw from that evidence.                 For example, the panel


                                      - 17 -
opinion rejected the reasonable inference that Kotowski's assailant

fled before taking anything of value from the apartment because he

heard her upstairs neighbor on the telephone with the police.

Instead, the panel held that "no rational juror could conclude that

the placement of this phone call frightened him off given the

volume and duration of Mrs. Kotowski's screams."        O'Laughlin III,

568 F.3d at 302.   Although it would be entirely permissible for a

jury to resist drawing this inference, an appellate court applying

the Jackson standard does not have the freedom to pick between

competing reasonable inferences in this manner.       See, e.g., United

States v. Ortiz, 447 F.3d 28, 34 (1st Cir. 2006) (recognizing that

"competing   inferences   are   not   enough   to   disturb   the   jury's

verdict," even in a case where the evidence of the defendant's

guilt was "entirely circumstantial").

          The panel opinion's method of analysis suffers from a

related defect to the extent that it dismisses pieces of evidence

by treating them in isolation, instead of considering the totality

of the evidence together.   For example, the panel opinion resisted

concluding that a reasonable jury could consider that the aluminum

baseball bat that the police found in the woods twenty-five yards

from Kotowski's apartment was evidence of O'Laughlin's guilt.         The

panel dismissed this because "any bat likely would have been

consistent with her injuries" and because the upstairs neighbor had

described sounds like wood hitting on wood.         O'Laughlin III, 568


                                - 18 -
F.3d at 302. But the fact that Kotowski's injuries were consistent

with being beaten with a baseball bat is only one of the facts that

would have permitted a rational juror to conclude that the bat

which the police found was the assailant's weapon.           The panel's

analysis ignores several other key facts relating to the bat, which

had been found in close proximity to the scene of the crime.

O'Laughlin's name was inscribed on it, and O'Laughlin was closely

tied to the crime by the prosecution's other evidence of his

motive, means, and consciousness of guilt.         The bat was hidden

under some leaves and debris as though someone had tried to

carefully conceal it.     And the bat was otherwise clean, suggesting

that it had not been in the woods for long and had been cleaned

off.

           This model of effectively performing de novo review

rather than drawing inferences in favor of the verdict, if widely

adopted,   would   have   unfortunate   consequences.   It    calls   for

appellate courts to make determinations that are well beyond the

institutional capacity of a court to do working from a cold record.

And it conflicts with the usual rules of finality, effectively

giving criminal defendants multiple opportunities to make their

case in the first instance. Indeed, the government is particularly

prejudiced when we overreach to decide these cases on sufficiency

grounds because principles of double jeopardy prevent the habeas

petitioner from being retried.     See Evans v. Thompson, 518 F.3d 1,


                                 - 19 -
7 (1st Cir. 2008) ("Sometimes double jeopardy principles mean the

habeas petitioner is simply released, as is done when the evidence

of guilt is insufficient.").

                                     III.

           Sufficiency questions are inherently fact-bound, and so

my disagreement with the panel opinion may appear, at first glance,

to be a dispute over these facts with few implications beyond this

case.   But my concerns with the panel opinion run far deeper than

that. In my view, the panel's implicit adoption of the "reasonable

speculation" standard impermissibly alters our circuit's approach

to   sufficiency    questions,      substantially   disadvantaging      whole

categories of cases -- like domestic and acquaintance violence

prosecutions   --    where    the    government's   evidence      is   largely

circumstantial.      And     the    panel's   approach   sets    a   dangerous

precedent to the extent that it deviates from the narrow role

Congress envisioned for federal habeas review under AEDPA by

substituting the federal court's own independent assessment of the

facts for the state court's.

           We have previously granted en banc review to address

similarly important questions relating to the contours of federal

habeas review, see, e.g., McCambridge v. Hall, 303 F.3d 24 (1st

Cir. 2002) (en banc), and I would do so again here.             Thus, with the

greatest respect for my colleagues, I dissent from the denial of en

banc review.   See United States v. Rivera, No. 95-2186, 1996 WL


                                    - 20 -
338379 (1st Cir. June 18, 1996) (Lynch, J., dissenting from the

denial of en banc review).



                  "Concurring Opinion Follows"




                             - 21 -
           TORRUELLA, Circuit Judge, with LIPEZ, Circuit Judge,

Concurring in the denial of en banc review.      I am forced to comment

on the dissent from the denial of en banc review because it

mischaracterizes the reasoning of the unanimous panel opinion, an

opinion which neither articulates nor applies a sufficiency of the

evidence   test   inconsistent   with   the   Supreme   Court's   clearly

established law under Jackson v. Virginia, 443 U.S. 307 (1979). To

suggest that the panel opinion adopts "reasonable speculation" as

some sort of binding "legal rule" is incorrect.          We do not even

mention the term in the section where we discuss the constitutional

right asserted -- a section entitled "The Jackson Standard,"

O'Laughlin v. O'Brien, 568 F.3d 287, 300-02 (1st Cir. 2009) -- and

we consistently apply the Jackson standard to the facts of this

case.   When read in context, our use of the term "reasonable

speculation"      merely   frowns   upon      speculative   evidentiary

interpretations and in no way suggests that we disfavor the use of

circumstantial evidence.      In fact, with respect to this latter

point, we explicitly state that "direct evidence of identification

is not necessary," id. at 301 n.17, and quote our prior precedent

affirming the use of circumstantial evidence, id.

           In addition, the dissent mistakenly contends that the

panel opinion engages in a piecemeal examination of the evidence.

Our approach to deciding whether a jury could conclude that the

evidence was sufficient to identify O'Laughlin as the assailant


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under Jackson is based on looking at the evidence as a whole.     We

begin and end our discussion of this evidence by stating that we

consider the evidence in its totality.       See id. at 302 ("Taken

together, the circumstantial evidence in this case, even when

drawing all reasonable inferences in favor of the prosecution, does

not permit any rational jury to conclude that O'Laughlin was the

assailant beyond a reasonable doubt."); id. at 304 ("Given the

insufficiency of the evidence, circumstantial or otherwise, tying

O'Laughlin to the attack, we conclude that a rational jury could

not find O'Laughlin's guilt beyond a reasonable doubt."). In order

to arrive at our conclusion that the evidence in its totality is

not sufficient to permit a rational jury to find O'Laughlin's guilt

beyond a reasonable doubt, we necessarily had to consider the

factors the SJC weighed, namely evidence supporting O'Laughlin's

motive, opportunity, means, and consciousness of guilt.      This is

consistent with how we have dealt with sufficiency issues in the

past.    See, e.g., Leftwich v. Maloney, 532 F.3d 20, 25-27 (1st Cir.

2008).

            Finally, the dissent's contention that the panel opinion

engages in a de novo review of the record is plainly wrong.      The

opinion recounts the facts as presented by the SJC and holds,

drawing all reasonable inferences in favor of the prosecution, that

the SJC was objectively unreasonable in concluding that O'Laughlin

was the assailant beyond a reasonable doubt. This approach was not


                                - 23 -
legal    error.   The   bottom   line   is   that   we   read   the   record

differently than the dissent, not that we apply the wrong legal

standard.

            As we state in the panel opinion, we fully appreciate

"the great degree of deference state court judgments are due,

especially those that uphold jury verdicts," O'Laughlin, 568 F.3d

at 300, and "the extremely high bar that must be overcome on habeas

review," id. at 304.       Despite this hurdle, however, in rare

instances there are fact-intensive cases where a state court's

determination as to guilt beyond a reasonable doubt is so incorrect

as to be objectively unreasonable.        A unanimous panel agreed that

this is such a case.1     With the utmost respect to our dissenting

colleague, the en banc court is correct in its decision to deny the

petition for rehearing.




     1
        We also note that the Massachusetts Appeals Court, while
admittedly applying a different standard on direct review,
overturned O'Laughlin's conviction, concluding that there was
insufficient evidence to support the jury's verdict.

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