                                                                                FILED
                            NOT FOR PUBLICATION                                  FEB 08 2012

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



                            FOR THE NINTH CIRCUIT


KENNETH CASEY,                                    No. 10-56763

              Petitioner - Appellant,             D.C. No. 8:09-cv-00370-ODW-
                                                  PLA
  v.

MICHAEL MARTEL, Warden,                           MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                            Submitted February 6, 2012**
                               Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       Kenneth Michael Casey, a state prisoner, appeals the district court’s denial

of his petition for writ of habeas corpus. The district court issued a certificate of

appealability with respect to Casey’s claims that insufficient evidence supported


        *
             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).
his conviction for conspiracy to create child pornography under California Penal

Code § 311.4(c) and/or to commit a lewd and lascivious act upon a child under

California Penal Code § 288(a), and that there was insufficient evidence to support

his conspiracy conviction because there was no evidence that he or his

coconspirator committed an overt act in furtherance of the conspiracy after they

agreed to commit a crime. We have jurisdiction under 28 U.S.C. § 2253(a), and

we affirm.

      Casey’s habeas petition is subject to the provisions of the Anti-Terrorism

and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2241-2255. To

prevail, Casey must show an “an unreasonable application of[ ] clearly established

Federal law” or an “unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington

v. Richter, -- U.S. --, 131 S. Ct. 770, 786 (2011).

      The “clearly established Federal law” at issue here is Jackson v. Virginia,

443 U.S. 307 (1979), under which “the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact




                                           2
could have found the essential elements of the crime beyond a reasonable doubt.”

Id. at 319 (emphasis in original).1

      The California Court of Appeal did not unreasonably apply clearly

established federal law in holding that substantial evidence showed that Casey

conspired to both create child pornography and commit a lewd and lascivious act

upon a child. See 28 U.S.C. § 2254(d)(1); People v. Casey, No. G037067, 2007

WL 2770855 (Cal. Ct. App. Sept. 24, 2007). Under the Jackson standard,

sufficient evidence existed that Casey and his coconspirator Dale Allen Rumsey

had agreed to pose or model the victim to create images exhibiting the victim’s

genitals or pubic or rectal area for the purpose of the viewer’s sexual stimulation.

See Cal. Penal Code § 311.4(c), (d)(1). Therefore, the state appellate court’s

decision was not an unreasonable application of Jackson. We reach the same

conclusion regarding the state appellate court’s decision finding substantial



      1
        It makes no difference that the state court did not expressly refer to
Jackson. State law provides an identical standard of review. Compare People v.
Johnson, 26 Cal. 3d 557, 576 (1980) (“The appellate court must determine whether
a reasonable trier of fact could have found the prosecution sustained its burden of
proving the defendant guilty beyond a reasonable doubt.”) (internal quotation
marks and citation omitted) with Jackson, 443 U.S. at 319. In addition, a state
court’s failure to cite governing Supreme Court decisions “does not affect the
application of the AEDPA standard” so long as the court’s ruling does not
contradict those decisions. Garcia v. Carey, 395 F.3d 1099, 1104 n.8 (9th Cir.
2005) (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).

                                          3
evidence that Casey and Rumsey agreed to have Casey cause or instigate the victim

to remove his clothes for Casey’s sexual gratification. See Cal. Penal Code § 288;

People v. Austin, 111 Cal. App. 3d 110, 115 (1980) (under § 288, defendant “was

responsible for the touching and removal of the child’s pants as surely as if he had

done it himself”).

      In a summary denial, the California Supreme Court rejected Casey’s claim

that insufficient evidence existed of the conspiracy because there was no evidence

of overt acts in furtherance of the conspiracy after the agreement had been created.

We conclude that a reasonable basis existed for the California Supreme Court’s

decision. See Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (“Where a state

court’s decision is unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable basis for the state

court to deny relief.”). Sufficient evidence existed that at least one of the overt acts

alleged in the government’s information occurred after Casey and Rumsey’s

agreement to create child pornography and/or commit a lewd act upon a minor

came into being. See Cal. Penal Code § 182(b) (requiring proof of the commission

of an overt act by one or more parties in furtherance of the conspiracy); People v.

Herrera, 83 Cal. App. 4th 46, 64 (2000) (facts proving a conspiracy may be

“inferred from the conduct, relationship, interests, and activities of the alleged


                                           4
conspirators before and during the alleged conspiracy”); People v. Von Villas, 11

Cal. App. 4th 175, 245 (1992) (“arrangements, discussions, and preparation” for a

crime among conspirators can constitute overt acts).

AFFIRMED.




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