                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JONI GOLDYN,                                    No. 04-17338
                 Petitioner-Appellant,
                   v.                             D.C. No.
                                               CV-97-01769-RLH
LOY HAYES,
                                                  OPINION
                Respondent-Appellee.
                                          
         Appeal from the United States District Court
                  for the District of Nevada
          Roger L. Hunt, District Judge, Presiding

                   Argued and Submitted
         October 21, 2005—San Francisco, California

                      Filed February 1, 2006

Before: Robert R. Beezer and Alex Kozinski, Circuit Judges,
          and Cormac J. Carney,* District Judge.

                   Opinion by Judge Kozinski




  *The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.

                                1245
                      GOLDYN v. HAYES                    1247


                         COUNSEL

Franny A. Forsman, Federal Public Defender, and Paul G.
Turner, Assistant Federal Public Defender, Las Vegas,
Nevada, for the petitioner-appellant.

Brian Sandoval, Attorney General; Rene L. Hulse, Senior
Deputy Attorney General; and Victor Hugo Schulze II, Dep-
uty Attorney General, Las Vegas, Nevada, for the respondent-
appellee.


                         OPINION

KOZINSKI, Circuit Judge:

   Petitioner spent 12 years in prison for conduct that is not
a crime. We vacate her conviction pursuant to Jackson v. Vir-
ginia, 443 U.S. 307 (1979).
1248                      GOLDYN v. HAYES
                                 Facts

   In November 1987, Joni Goldyn opened checking and sav-
ings accounts with the Nevada Federal Credit Union (NFCU).
Generous to a fault, NFCU also showered Goldyn with a
$1,000 loan, a $500 line of credit attached to her checking
account, a credit card and a “check guarantee card.” By Janu-
ary 1988, Goldyn had depleted the funds in her accounts, used
up most of her $500 line of credit, and accumulated various
bank fees, resulting in a net negative balance. But Goldyn
continued writing checks, and merchants continued accepting
them, presumably relying on her check guarantee card. More
importantly, NFCU continued covering her checks, as the
check guarantee card obligated it to do. As NFCU’s collection
officer testified at trial: “If a member uses a check guarantee
card with the check, the bank is liable, and we do have to
honor those checks.”

   Goldyn was convicted by a jury of five counts of Drawing
and Passing Checks with Insufficient Funds on Deposit, in
violation of Nev. Rev. Stat. 205.130. Because she had previ-
ously been convicted of three felonies and one gross
misdemeanor—all fraud related—she was sentenced as a
habitual criminal to five life sentences. After twelve years in
prison, she was released and placed on lifetime parole.1 On
federal habeas, Goldyn presents a simple argument: If the
bank was obligated to cover them, then she can’t have written
bad checks.
  1
    Although Goldyn was released, we retain jurisdiction over her habeas
petition because the petition was filed while she was imprisoned. See
United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th
Cir. 1988). In any event, she remains in “custody” for purposes of habeas
jurisdiction while she is on parole. See Jones v. Cunningham, 371 U.S.
236, 243 (1963). Further, Goldyn’s case is not moot because “the adverse
consequences of [her] criminal conviction remain.” Spawr Optical
Research, 864 F.2d at 1470; see Chaker v. Crogan, 428 F.3d 1215, 1219
(9th Cir. 2005) (citing Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir.
1994), for the proposition that there is an “irrefutable presumption that
collateral consequences result from any criminal conviction”).
                           GOLDYN v. HAYES                          1249
                               Analysis

   [1] Our analysis begins and ends with the statutory text.
The statute under which Goldyn was convicted is violated
when “a person . . . willfully, with an intent to defraud, draws
or passes a check or draft to obtain [money or property] . . .
when the person has insufficient money, property or credit
with the drawee of the instrument to pay it in full upon its pre-
sentation.” Nev. Rev. Stat. 205.130(1) (emphasis added).
“Credit” is further defined as “an arrangement or understand-
ing with a person, firm, corporation, bank or depositary for
the payment of a check or other instrument.” Id. at
205.130(4).

   It is undisputed that Goldyn had insufficient funds in her
account to cover the five checks she wrote. But it is also
undisputed that, at the time Goldyn wrote the checks, she was
in possession of a check guarantee card from NFCU.2 This
card represented NFCU’s commitment to merchants accepting
Goldyn’s checks that it would cover the checks even if Gol-
dyn had insufficient funds in her account to cover the checks
herself. As the Nevada Supreme Court recognized, “[t]he
credit union paid the checks because [Goldyn’s] use of a
check guarantee card to draw the checks obligated it to do
so.” In fact, even though Goldyn’s purchases totaled more
than her $500 line of credit, and even though Goldyn already
had a negative balance in her account, NFCU covered all five
checks, and the merchants lost no money.

  [2] Over the twelve years she spent in prison, Goldyn
asserted her innocence seven times before three courts.3 Yet
  2
     NFCU allegedly sent Goldyn a letter a few days before Goldyn wrote
the five checks at issue, informing her that her check guarantee account
was being closed due to excessive overdrafts. But the letter was sent “re-
turn receipt requested,” and no receipt was ever returned. Goldyn claims
she never received the letter. In any event, Goldyn’s account obviously
had not yet been closed, as NFCU continued to cover her checks.
   3
     The Nevada trial court entered its amended judgment of conviction in
April 1991. The Nevada Supreme Court dismissed Goldyn’s direct appeal
1250                       GOLDYN v. HAYES
no court appears to have taken her argument seriously. The
Nevada Supreme Court rejected Goldyn’s argument with the
following incomplete analysis:

     The elements of the crime of issuing a check against
     insufficient funds are: 1) with the intent to defraud;
     2) making or passing a check for the payment of
     money; 3) without sufficient funds in the drawee
     institution to cover the check in full upon presenta-
     tion. Appellant opened her checking account under
     an assumed name. Appellant received cash or mer-
     chandise in return for each of the checks at issue,
     and did not have sufficient funds in her account to
     cover the checks. Appellant’s check guarantee card
     carried a $500 line of credit, but appellant’s over-
     drafts far exceeded that amount. The credit union
     paid the checks because appellant’s use of a check
     guarantee card to draw the checks obligated it to do
     so. Although the payee of the checks was not
     injured, the credit union was injured by having to
     cover appellant’s bad checks. The jury could reason-
     ably infer from the evidence presented that appellant,
     with an intent to defraud, drew and passed each of
     the checks at issue without having sufficient funds in
     the drawee institution to cover the checks. (Citations
     omitted.)

The state court correctly identified that Goldyn “did not have
sufficient funds in her account to cover the checks.” But
standing alone, this is not a crime; the statute is only violated

in March 1992. The state trial court denied her petition for post-conviction
relief in September 1994, and her state habeas petition in August 1995.
Goldyn appealed both denials to the Nevada Supreme Court, which denied
both in November 1997. Finally, Goldyn filed a federal habeas petition,
which the United States District Court for the District of Nevada denied
in July 2004.
                            GOLDYN v. HAYES                             1251
if she wrote the checks without sufficient funds “or credit.”4
Nev. Rev. Stat. 205.130(1). Thus, Goldyn’s undisputed lack
of funds is of no consequence if she had sufficient credit to
cover the checks.

   [3] Although the state court recognized that Goldyn’s check
guarantee card “obligated” NFCU to pay Goldyn’s checks, it
apparently failed to recognize that obligation as a form of
credit. Instead, the state court focused on Goldyn’s $500
credit limit, even though undisputed evidence in the record
demonstrates that the $500 “limit” did not cap the bank’s obli-
gations under the check guarantee card. At trial, NFCU’s col-
lection officer explained this very clearly:

     Q: The five hundred dollar line of credit was, you
     previously testified, attached to [Goldyn’s] checking
     account. Is that right?

     A:    That’s correct.

     Q:    And is that a type of overdraft protection?

     A:    Yes, it is.

     Q: And could a member extend the credit line
     beyond five hundred dollars without approval from
     the bank?
   4
     The information under which Goldyn was charged also lacked the criti-
cal words “or credit.” This raises another serious constitutional issue. See
United States v. Debrow, 346 U.S. 374, 376 (1953) (“An indictment is
required to set forth the elements of the offense sought to be charged. The
true test of the sufficiency of an indictment is . . . whether it contains the
elements of the offense intended to be charged, and sufficiently apprises
the defendant of what he must be prepared to meet . . . .” (internal quota-
tion marks omitted)). But Goldyn has never challenged the sufficiency of
the information on this ground, so we need not address it. We mention it
merely as another example of inexcusable sloppiness in the handling of
this case.
1252                       GOLDYN v. HAYES
      A:   They could.

      Q:   How?

      A: By exceeding the amount of five hundred dol-
      lars and continue [sic] to write checks.

The state court overlooked the fact that, by giving Goldyn a
check guarantee card, NFCU had obligated itself to continue
doling out money to cover her checks, even after that so-
called limit was surpassed.5

   The state court also mentioned the irrelevant fact that Gol-
dyn opened her checking account under an assumed name.
Had Goldyn been charged with defrauding NFCU into giving
her the check guarantee card, her representations when she
opened the account would, of course, have been relevant. But
Goldyn was charged with writing bad checks, a completely
different crime with different potential victims—the mer-
chants who accepted the checks, not the bank. The bottom
line is that the checks Goldyn wrote were not bad, and the
merchants who accepted her checks were not injured; they
were paid in full.

  Finally, the state court’s observation that “the credit union
was injured by having to cover appellant’s bad checks”
reveals a misunderstanding of both the crime of conviction
and the concept of a check guarantee card. The crime of writ-
  5
    It is possible, of course, that NFCU covered Goldyn’s purchases with
no intention of being repaid. In common parlance, this would be known
as a “gift.” Although such a gift would certainly have been generous, we
will not presume the credit union intended such generosity absent any evi-
dence to that effect. In any event, NFCU’s decision to cover Goldyn’s
checks cannot be described as anything other than a “gift” or “credit”—
either it intended for Goldyn to repay the money (in which case it was
extending her credit), or it didn’t (in which case it was giving her a gift
of money). In either case, Goldyn’s checks were covered by “money,
property or credit” as specified in Nev. Rev. Stat. 205.130(1).
                       GOLDYN v. HAYES                      1253
ing bad checks protects merchants from trading their wares
for worthless paper; it does not protect a financial institution
from making unwise loans. A financial institution that has
given its account holder a check guarantee card is not “in-
jured” when it is forced to cover her overdrawn checks—
that’s the entire purpose of a check guarantee card. The finan-
cial institution is only injured when the money it lends by
covering an account holder’s checks—the credit it has
extended her—is not repaid. But that “injury” is part of the
credit risk a financial institution assumes as its everyday busi-
ness; when it chooses to guarantee its account holder’s over-
drawn checks, it becomes her unsecured creditor. NFCU can
try to collect its money from Goldyn using the debt collection
procedures it would employ for any other defaulted loan,
including a civil lawsuit. But failure to repay a loan is not a
crime; the days of imprisoning insolvent debtors are long
gone. See, e.g., U.S. Const. amend. XIII (1865); Nev. Const.
art. I, § 14 (1864).

   The check guarantee card was a private agreement between
the Nevada Federal Credit Union and Goldyn: NFCU agreed
to put its own balance sheet behind Goldyn’s checks so that
merchants would feel comfortable accepting them, and Gol-
dyn agreed to repay NFCU with interest. This is a service that
financial institutions offer their customers to make it easier
for them to negotiate their checks; presumably they are remu-
nerated for this service, and the risk associated with it, by
charging interest. NFCU could have conducted a background
check on Goldyn, or required collateral from her, before
entering into such a risky arrangement. The wisdom of its
decision not to do so should be of no concern to the state
prosecutor’s office or the criminal courts. Of course, if Gol-
dyn fraudulently represented herself to NFCU in order to
qualify for the check guarantee card, she might have been
prosecuted for defrauding the bank. But the state has the
responsibility of charging her with the right crime—fraud
against the bank, not writing bad checks. And Goldyn cannot
1254                   GOLDYN v. HAYES
be sent to prison for a crime she didn’t commit because she
might be guilty of a different crime altogether.

   [4] “Perhaps some would say that [Goldyn’s] innocence is
a mere technicality, but that would miss the point. In a society
devoted to the rule of law, the difference between violating or
not violating a criminal statute cannot be shrugged aside as a
minor detail.” Dretke v. Haley, 541 U.S. 386, 399-400 (2004)
(Kennedy, J., dissenting). No check Goldyn wrote that was
backed by her check guarantee card—representing the bank’s
commitment to pay Goldyn’s checks in full, regardless of the
funds in her account—could possibly have been a bad check.
And, because “there is no factual basis for [Goldyn’s] convic-
tion . . . it follows inexorably that [she] has been denied due
process of law. Thompson v. Louisville, 362 U.S. 199 (1960);
Jackson v. Virginia, 443 U.S. 307 (1979).” Haley, 541 U.S.
at 397 (Stevens, J., dissenting); see also id. at 395 (majority
opinion) (citing In re Winship, 397 U.S. 358, 364 (1970), for
the proposition that due process requires proof of each ele-
ment of a crime beyond a reasonable doubt).

   [5] No rational trier of fact could have found that Goldyn
committed the crime of writing bad checks as defined by
Nevada law. See Jackson, 443 U.S. at 319. And no rational
judicial system would have upheld her conviction. See 28
U.S.C. § 2254(d)(1). We are saddened and disappointed that
the state supreme court unanimously affirmed a conviction
carrying multiple life sentences based on such cursory and
inadequate review of the record in light of the applicable stat-
ute.

                        *      *     *

   The Nevada Federal Credit Union probably made a fool-
hardy decision when it gave Goldyn a check guarantee card
and lent her money. And Goldyn breached her private agree-
ment with NFCU when she failed to repay the money it
loaned her. But the state cannot remedy NFCU’s error in
                          GOLDYN v. HAYES                        1255
judgment, or avenge Goldyn’s breach of contract, by convict-
ing her of a crime she didn’t commit. Had the Nevada courts
and prosecutor’s office taken more seriously their “obligation
to serve the cause of justice,” United States v. Agurs, 427 U.S.
97, 111 (1976), Goldyn would not have spent twelve years
behind bars for conduct that is not a crime.6

   [6] We remand to the district court for the entry of a judg-
ment granting the petition for writ of habeas corpus and
directing the clerk to immediately issue an unconditional writ
of habeas corpus vacating Goldyn’s conviction and ordering
expungement of all state and federal records thereof.

  We direct the clerk of this court to issue the mandate forth-
with.

  REVERSED.




  6
    Because we are granting Goldyn’s habeas petition for the reasons
expressed above, we do not consider her numerous other claims, some of
which raise similarly significant issues that cast further doubt on the
state’s commitment to the pursuit of justice in this case.
