                                                                               FILED
                            NOT FOR PUBLICATION                                 FEB 19 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


 EUGENE J. COFSKY,                                     No. 09-16189

               Petitioner - Appellant,                 D.C. No. 3:07-cv-08126-FJM
                                                       District of Arizona,
   v.                                                  Prescott

 CHARLES L. RYAN, et. al.,
                                                       MEMORANDUM*
               Respondents - Appellees.

                    Appeal from the United States District Court
                              for the District of Arizona
                Frederick J. Martone, Senior District Judge, Presiding

                             Submitted February 11, 2013**
                              San Francisco, California

Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.

        Arizona state prisoner Eugene J. Cofsky appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas petition challenging his conviction for conspiracy to

commit first-degree murder. We affirm.



        *
           This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
           The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The Arizona state courts’ finding – that sufficient evidence supported

Cofsky’s conviction for conspiracy to commit first-degree murder – was not

contrary to, or an unreasonable application of, clearly established federal law.1

Neither the postconviction review court nor the Arizona Court of Appeals on direct

review provided reasoning for their respective conclusions that sufficient evidence

was presented to convict Cofsky of conspiracy to commit first-degree murder.

Where a state court rules on the issue at hand, but does not supply reasoning for its

decision, we “perform an independent review of the record to ascertain whether the

state court decision was objectively unreasonable.” Himes v. Thompson, 336 F.3d

848, 853 (9th Cir. 2003) (internal quotation marks omitted). “Independent review

of the record is not de novo review of the constitutional issue, but rather, the only

method by which we can determine whether a silent state court decision is

objectively unreasonable.” Id.

      Under clearly established federal law, when considering a sufficiency of the

evidence challenge, we ask “whether the record evidence could reasonably support

a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

318 (1979). In other words, “whether, after viewing the evidence in the light most


      1
       Cofsky no longer challenges whether conditional intent is sufficient to
show the specific intent needed to prove a conspiracy to commit first-degree
murder. Accordingly, this argument is abandoned.
                                           2
favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 319. Where

conflicting inferences may be supported by the record, we presume “that the trier

of fact resolved any such conflicts in favor of the prosecution, and [we] must defer

to that resolution.” Id. at 326. Moreover, “[a]fter AEDPA, we apply the standards

of Jackson with an additional layer of deference.” Juan H. v. Allen, 408 F.3d

1262, 1274 (9th Cir. 2005) (citing 28 U.S.C. § 2254(d)).

      An independent view of the record demonstrates that neither state court

decision finding sufficient evidence was objectively unreasonable. Considering

the evidence presented against Cofsky in the context of the elements of the crime,

Juan H., 408 F.3d at 1275, and viewing that evidence in the light most favorable to

the prosecution, Cofsky has not demonstrated that “any rational trier of fact could

[not] have found the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319. To the contrary, the record reflects sufficient evidence

to allow any reasonable factfinder to find (1) intent to promote the murder of the

corrections officer, and (2) an agreement between Cofsky and the other

conspirators to kill the corrections officer if he resisted. See Evanchyk v. Stewart,

47 P.3d 1114, 1117 (Ariz. 2002) (en banc). Although evidence of Cofsky’s

involvement is circumstantial, considering the evidence of (1) Cofsky’s known


                                          3
involvement in the jailbreak planning, including his role of keeping track of the

conspirator tasked with killing the guard if necessary, (2) the close proximity of

events and physical evidence on Cofsky’s property, and (3) Cofsky’s appearance in

the designated courtroom at the planned time, a reasonable factfinder could have

concluded that Cofsky agreed to the jailbreak with the other conspirators and

agreed that a corrections officer would be shot if necessary. Accordingly, we must

uphold the jury’s verdict.

      AFFIRMED.




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