                                                                         FILED
                               FOR PUBLICATION                            APR 11 2006

                                                                    CATHY A. CATTERSON, CLERK
                   UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JONI GOLDYN,                                   No. 04-17338

           Petitioner - Appellant,             D.C. No. CV-97-01769-RLH

  v.
                                               AMENDED OPINION
LOY HAYES,

           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
                              Amended April 11, 2006

Before:      BEEZER and KOZINSKI, Circuit Judges, and CARNEY,* District
             Judge.

KOZINSKI, Circuit Judge:


       Petitioner spent 12 years in prison for a crime she didn’t commit. We


       *
         The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
                                                                               page 2
vacate her conviction pursuant to Jackson v. Virginia, 443 U.S. 307 (1979).


                                       Facts

      In November 1987, Joni Goldyn opened checking and savings 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. The back of the latter

card read as follows:

      This credit union guarantees payment of cardholder’s checks drawn
      prior to the expiration date by the person whose name appears on the
      face of this card subject to the following conditions: 1) Check amount
      shall not exceed $100 cash or $500 for merchandise; 2) Card number
      and expiration date must appear on the check . . . .

The inscription on the back of the card also imposed certain obligations on the

cardholder, triggered “[b]y signing and using the card”:

      3) Pay the credit union for checks guaranteed with this card if the
      cardholder’s account is insufficient; 4) To surrender this card upon
      the credit union’s request.

The expiration date on the front of the card was November 1989.

      By January 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
                                                                                page 3
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 previously been convicted of three felonies and one

gross misdemeanor—all fraud related—she was sentenced as a habitual criminal

to five life sentences. Goldyn asserted her innocence seven times before three

courts, but to no avail.1 After taking twelve years of Goldyn’s life, the state finally

released her on lifetime parole.2 On federal habeas, Goldyn presents the same


      1
        The Nevada trial court entered its amended judgment of conviction in
April 1991. The Nevada Supreme Court rejected Goldyn’s direct appeal 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 affirmed both in November
1997. Finally, Goldyn filed a timely federal habeas petition in July 1998, which
the United States District Court for the District of Nevada didn’t deny until July
2004.
      2
         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”
                                                                       (continued...)
                                                                                    page 4
simple argument she had presented to the state courts: If the bank was obligated

to cover her checks, then she can’t be convicted of having written bad checks.


                                       Analysis

      1. Goldyn was convicted of violating Nev. Rev. Stat. 205.130(1), which

makes it a criminal offense for “a person [to] . . . willfully, with an intent to

defraud, draw[] or pass[] 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 presentation.” The elements of this offense are

no mystery: To convict Goldyn, the state had to prove beyond a reasonable doubt

that she (1) acted willfully and with an intent to defraud; (2) passed a check in

exchange for cash, goods or services; and (3) was unable to cover the check with

any of the following: (a) money, (b) property or (c) credit with NFCU.3


      2
       (...continued)
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”).
      3
         The Nevada Supreme Court has occasionally referred to the third element
of the statute simply as a lack of “funds.” See, e.g., Garnick v. First Judicial Dist.
                                                                         (continued...)
                                                                               page 5
      It is uncontested that Goldyn passed five checks to various merchants in

exchange for items of value, and that she had insufficient money or property in her

NFCU accounts to cover the checks. We can further assume for the sake of

argument that Goldyn intended to defraud someone when she passed those checks,

whether it have been the merchants or the bank: She knew she had insufficient

money in her account to pay the merchants and, should the bank pay the merchants

for her, she presumably4 had no intention of repaying the bank. Thus, we take it as


      3
        (...continued)
Court, 407 P.2d 163, 165 (Nev. 1965) (a case where sufficiency of credit was not
an issue). A superficial review of cases such as Garnick might lead to the facile
conclusion that the Nevada Supreme Court eliminated the terms “property or
credit” from Nev. Rev. Stat. 205.130(1), and that the statute is violated whenever
an account holder writes a check not covered by funds in his account. This, of
course, would make criminals out of the many law-abiding people who
occasionally write checks backed by credit rather than cash. Had the state pressed
this strained interpretation of Nev. Rev. Stat. 205.130(1), we would have hesitated
in attributing to the Nevada Supreme Court such a radical rewriting of the statute
based only on casual phrases clipped from cases where the issue is not even
presented. But the state made no such argument, and Nevada caselaw subsequent
to Garnick discloses that the statute still means what it says. See Nguyen v. State,
14 P.3d 515, 517 (Nev. 2000) (listing the elements of the offense just as the statute
defines them, including insufficient credit). Indeed, in this very case, the Nevada
Supreme Court considered whether Goldyn had sufficient credit with NFCU under
her $500 credit line to be absolved of the offense, see pp. 6–7 infra, an analysis
that would have been superfluous had the court taken the view that credit was no
longer a sufficient basis for covering checks in Nevada.
      4
        We say presumably because we are aware of no evidence in the record as
to Goldyn’s intent to repay the bank. This is not at all surprising, given that
                                                                        (continued...)
                                                                              page 6
given that the state met its burden on elements 1, 2, 3(a) and 3(b).

      Finally, with respect to element 3(c), it is undisputed that at the time Goldyn

wrote the checks at issue, she had already nearly exceeded her $500 line of credit.

Thus, the only remaining question is whether Goldyn’s check guarantee card was

an additional form of credit extended to her by NFCU, as that term is defined by

Nev. Rev. Stat. 205.130(4) (defining “credit” as “an arrangement or understanding

with a person, firm, corporation, bank or depositary for the payment of a check or

other instrument”). If it was, then the checks were covered by Goldyn’s credit and

the state did not prove element 3(c) of the crime she was charged with. See

Jackson, 443 U.S. at 318–19, 323–24.


      2. We start our analysis with the state court’s findings, to which we owe

great deference. See 28 U.S.C. § 2254(e)(1). This is everything the Nevada

Supreme Court had to say in upholding Goldyn’s conviction:

      Appellant opened her checking account under an assumed name.
      Appellant received cash or merchandise in return for each of the

      4
      (...continued)
Goldyn was charged with writing bad checks and intent to repay the bank is not an
element of that offense.

      We note that Goldyn herself bears some of the blame for these errors
because she chose to represent herself at trial, perhaps tempting the prosecution
into overreaching.
                                                                              page 7
      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 overdrafts 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 reasonably
      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.)

This passage seems to presuppose that Goldyn’s check guarantee card and her

$500 line of credit were one and the same, and therefore that the check guarantee

protection was capped at an aggregate of $500. Checks written after that limit was

exceeded were, under this view, not covered by Goldyn’s credit. We construe the

Nevada Supreme Court’s ruling as containing an implicit finding to that effect.5

However, the state court’s terse analysis also contains an explicit finding: “The

credit union paid the checks [that exceeded Goldyn’s $500 line of credit] because



      5
         We are not convinced that we are bound by a state court’s implicit
findings under AEDPA. Indeed, deference to state court implicit factfinding
would likely vitiate the function of federal courts on habeas, because the state
could always point to some “implicit” finding by the state court to fill in a whole
variety of constitutional defects. Nevertheless, we will presume—while explicitly
not deciding—that a federal court reviewing a state court’s judgment on habeas
may, at least in certain circumstances, be required to give deference to state court
factual findings not explicitly made, but nonetheless implicit in the state court’s
judgment. We will assume the state court’s implicit finding is correct unless clear
and convincing evidence proves otherwise. See 28 U.S.C. § 2254(e)(1).
                                                                                page 8
appellant’s use of a check guarantee card to draw the checks obligated it to do so.”

If the credit union’s obligation to cover the checks grew out of a separate credit

arrangement with Goldyn, then this explicit finding would be inconsistent with the

implicit finding that Goldyn had no credit to cover the checks. We thus turn to the

record to determine which of the findings find support there.

      As discussed above, everyone agrees that Goldyn had insufficient money in

her account, and insufficient credit left on her $500 line of credit, to cover the

checks. Everyone further agrees that Goldyn was in possession of a check

guarantee card from NFCU at the time she wrote the checks at issue.6 The

      6
         NFCU allegedly sent Goldyn a letter at about the time Goldyn wrote the
five checks at issue, informing her that her check guarantee account was being
closed due to excessive overdrafts. The letter was sent “return receipt requested,”
which ensures a sender “proof of delivery.” See
http://www.usps.com/send/waystosendmail/extraservices/returnreceiptservice.htm
(“A mailer purchasing return receipt service . . . receive[s] a green postcard with
the recipient’s actual signature.”). But no such proof was ever returned, and
Goldyn claims she never received the letter because NFCU had the wrong address.
In fact, when NFCU sent Goldyn another return receipt letter a month later—to a
different address in a different state—telling her to make payments on her account,
NFCU did receive proof of service. All of the checks at issue in this case were
written before this second letter was mailed.

      In any event, Goldyn’s account obviously had not yet been closed at the
time she wrote the five checks at issue: Two of the checks were written before
even the first letter threatened to close Goldyn’s account, and NFCU continued to
cover all five checks even after it had sent the letter. Nowhere in its opinion does
the Nevada Supreme Court find that Goldyn’s account had been closed at the time
                                                                         (continued...)
                                                                                page 9
question then is whether the check guarantee card merely reflected the $500 line

of credit (which Goldyn had exhausted), or whether it represented an entirely

separate credit arrangement, whereby the bank obligated itself to cover Goldyn’s

checks, regardless of her primary $500 credit line.7 In answering this question, we

begin with the terms of the check guarantee card itself, quoted above. See p. 2

supra. Among Goldyn’s obligations as written on the card is the following: “Pay

the credit union for checks guaranteed with this card if the cardholder’s account is

insufficient.” This promise to repay would, of course, be unnecessary if Goldyn

were merely drawing down her credit line. The credit line, after all, already

involved a promise to repay; the inclusion of a separate promise to repay clearly

suggests a separate contract between Goldyn and the bank.

      Furthermore, the check guarantee card is not, by its terms, limited to $500



      6
       (...continued)
she wrote the checks; to the contrary, the court found that the check guarantee card
was still in operation. See pp. 6–7 supra.
      7
         It is not at all unusual for a financial institution to have more than one
credit arrangement with the same customer. In Goldyn’s case, for example, she
had at least three such arrangements, putting aside the check guarantee card: her
$1000 loan, the $500 line of credit and a credit card, each of which represented a
separate obligation on her part. Other customers might also have a mortgage, a
commercial loan, a letter of credit and a variety of other such arrangements. Each
would, of course, be governed by its own terms and conditions and exhausting one
would not necessarily exhaust any of the others.
                                                                             page 10
of aggregate credit, as it would have to be if it were covered only by Goldyn’s line

of credit. Rather, the $500 limit described on the back of the card applies, as

stated, to the “[c]heck amount.” And the card speaks of covering “the

cardholder’s checks” (emphasis added), each of which could be for up to $100 in

cash or $500 in merchandise. The agreement does not limit the number of checks

the account holder may write, nor does it reference Goldyn’s line of credit. And

multiple checks of $500 each would, of necessity, exceed Goldyn’s $500 line of

credit.8

       The Nevada Supreme Court in Goldyn’s case, in fact, recognized that the

bank was obligated to pay the checks, even though Goldyn’s line of credit had

been exhausted: “The credit union paid the checks because [Goldyn’s] use of a

check guarantee card to draw the checks obligated it to do so.” P. 7 supra. And



       8
          Indeed, a check guarantee card that is subject to an aggregate credit limit
would be worthless because merchants accepting the card would have no way of
knowing how much credit the cardholder has, and how many other checks he has
written against that line of credit. The whole point of a check guarantee card is to
reassure merchants that the checks will be covered, regardless of the state of the
cardholder’s account. The card tells merchants that they can accept checks (up to
the amounts stated on the card) and those checks will be paid, whether or not the
check-writer has funds to cover them. A check guarantee card that is subject to a
preset aggregate credit limit would provide no such assurance, because merchants
would have no way of knowing whether the check-writer had exhausted his line of
credit, just as they have no way of knowing whether he has cash in his account to
cover the checks.
                                                                            page 11
the court had a solid basis for this factual finding—the NFCU collection officer

that the prosecutor called to the stand gave very clear, uncontested testimony on

the point:

      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?

      A: They could.

      Q: How?

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

Thus, NFCU conceded that by giving Goldyn a check guarantee card, it had

obligated itself to dole out money to cover Goldyn’s checks, regardless of the state

of her account. As the NFCU collection officer also testified, “If a member uses a

check guarantee card with the check, the bank is liable, and we do have to honor

those checks.” Nor was this simply a unilateral accommodation on that part of the

bank designed to maintain the bank’s goodwill with the merchants. The check
                                                                               page 12
guarantee card is a contract between the bank and Goldyn, with the merchants who

accept checks in reliance on the card as intended third party beneficiaries. By

signing and using the card, Goldyn obligated herself to repay the bank for

covering checks that were not covered by funds in her account.

      Recall Nevada’s definition of “credit”: “an arrangement or understanding

with a person, firm, corporation, bank or depositary for the payment of a check or

other instrument.” Nev. Rev. Stat. 205.130(4). Looking at the plain language of

this definition, Goldyn’s check guarantee card must qualify as credit: By signing

and using the card, Goldyn entered into an “understanding” with NFCU that it

would pay her checks even though she had insufficient funds in her account to

cover them herself. Or, to look at it another way, by giving Goldyn the card,

NFCU had entered into an “arrangement” to pay her checks, and Goldyn had

promised to repay the amounts so advanced. The Nevada Supreme Court’s

explicit factual finding and the uncontested evidence in the record seem to lead

inexorably to this conclusion. Its implicit factual finding, see p. 7 supra, that

Goldyn’s check guarantee card was subject to an aggregate cap equal to the $500

limit on her credit line finds no support in the record.


      3. We turn now to the Nevada Supreme Court’s reasons for upholding
                                                                              page 13
Goldyn’s conviction. The court offered four explanations for its surprising

holding: (1) “Appellant opened her checking account under an assumed name.”

(2) “Appellant received cash or merchandise in return for each of the checks at

issue, and did not have sufficient funds in her account to cover the checks.” (3)

“Appellant’s check guarantee card carried a $500 line of credit, but appellant’s

overdrafts far exceeded that amount.” (4) “Although the payee of the checks was

not injured, the credit union was injured by having to cover appellant’s bad

checks.” See pp. 6–7 supra. None of these reasons is sufficient to uphold

Goldyn’s conviction.

      That Goldyn opened her checking account under an assumed name is

entirely beside the point, given the crime Goldyn was charged with. 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 mattered.

But Goldyn was charged with writing bad checks, a completely different crime.

Goldyn’s dishonesty when opening her account does not alter the “arrangement or

understanding” she had with NFCU as a result of her check guarantee card, and is

thus irrelevant to that element of the offense. The fact that Goldyn may have

engaged in fraud in obtaining credit does not vitiate the fact that she had credit at

the time she wrote her checks. The Nevada Supreme Court recognized as much
                                                                              page 14
when it noted that Goldyn’s line of credit had been exhausted. Had Goldyn’s

fraud in obtaining the credit rendered her credit line a nullity, then it would hardly

have mattered that the credit line was exhausted.

      Of course, deceiving the bank may be evidence of an intent to defraud, but

that is a wholly distinct element of the statute under which Goldyn was convicted.

See p. 4 supra (element 1). We are assuming that Goldyn did have an intent to

defraud, see p. 5 supra, but the state also had to prove that she did not have credit

to cover the checks when she wrote them. For Goldyn to have been convicted, the

state needed to present evidence that she committed each and every statutory

element of the crime with which she was charged. See Jackson, 443 U.S. at 316;

In re Winship, 397 U.S. 358, 364 (1970).

      Next, the state court noted 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 if she wrote the checks without sufficient funds “or credit.” Nev.

Rev. Stat. 205.130(1).9 Indeed, the check guarantee card contemplates that the

      9
         The information under which Goldyn was charged also lacked the critical
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
                                                                         (continued...)
                                                                                  page 15
check-writer may not have sufficient funds in her account, as it obligates the

account holder to “[p]ay the credit union for checks guaranteed with this card if

the cardholder’s account is insufficient.” Writing checks with insufficient funds in

the checking account thus is a contemplated circumstance of the agreement

between Goldyn and the bank, and can hardly be proof of any illegality on

Goldyn’s part. Goldyn’s undisputed lack of funds is of no consequence if she had

sufficient credit to cover the checks, the very question at issue in this case.

      Similarly, the court’s next statement regarding the insufficiency of Goldyn’s

$500 line of credit is merely background information; it says nothing about

whether the check guarantee card constitutes a separate and distinct form of credit.

For the reasons explained above, the record is perfectly clear that the $500 limit on

Goldyn’s line of credit in no way limited the bank’s obligations under the check

guarantee card, which entitled Goldyn to write multiple checks, each of which

could be for up to $500. Nor was Goldyn’s obligation to repay the bank limited to

amounts drawn against her line of credit. She had a separate contractual

obligation to repay all funds advanced by the bank to cover her checks, which



      9
       (...continued)
prepared to meet . . . .” (internal quotation marks omitted)). But Goldyn has never
challenged the sufficiency of the information on this ground, so we need not
address it.
                                                                              page 16
could well exceed $500. As noted above, to the extent that the Nevada Supreme

Court found there to be an aggregate $500 limit attached to the check guarantee

card, such a finding is contradicted by the record. See 28 U.S.C. § 2254(e)(1).

      Finally, the Nevada Supreme Court stated that the credit union had been

injured by having to cover Goldyn’s checks. As an initial matter, it is not at all

clear that a financial institution that has given its account holder a check guarantee

card can be injured when it is forced to cover overdrawn checks—that’s one of the

circumstances contemplated by the check guarantee card, which provides that the

cardholder will reimburse the credit union for checks passed when “the

cardholder’s account is insufficient.” The financial institution is only injured

when the money it lends by covering an account holder’s checks—the credit it has

extended—is not repaid. But that injury is part of the credit risk a financial

institution assumes as its everyday business; when it chooses to guarantee its

account holder’s overdrawn checks, it becomes an unsecured creditor.10 NFCU

      10
          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 Goldyn 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 remunerated for this service, and the risk associated
with it, by charging interest and/or collecting fees. NFCU could have conducted a
background check on Goldyn, or required collateral from her, before entering into
                                                                        (continued...)
                                                                              page 17
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. Failure to

repay a loan, however, 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).

      In any event, even if the Nevada Supreme Court were correct that the credit

union was injured by Goldyn’s actions, injury—whether to the payee or the

financial institution—is not an element of the crime as established by the statute.

See Nev. Rev. Stat. 205.130(1); p. 4 supra. And, if the Nevada Supreme Court

intended to interpret the statute as requiring some injury as an element of the

crime, this would not satisfy the separate statutory element requiring that

defendant lack credit.11 Thus, we are right back where we started—in need of an


      10
        (...continued)
such a risky arrangement. The wisdom of its decision to enter into the agreement
with Goldyn should be of no concern to the state prosecutor’s office or the
criminal courts.
      11
          In fact, the Nevada Supreme Court in Hoyt v. Hoffman, 416 P.2d 232
(Nev. 1966), held that injury is an element of the crime with which Goldyn was
charged. But the injury that the court required was injury to the payee, not to the
financial institution. See id. at 233. Indeed, the court held that without injury to
the payee, a defendant charged with writing bad checks must be acquitted. See id.
(“The legislature did not intend to make it a crime to issue a worthless check
absent damage or injury to the payee thereof.”). This is yet another reason to grant
                                                                        (continued...)
                                                                               page 18
explanation for the court’s holding that Goldyn lacked the credit to cover her

checks.


      4. The Nevada Supreme Court is, of course, the final arbiter on questions of

state law. It has wide latitude in defining and interpreting the elements of Nevada

state crimes, and we are precluded on habeas review from reexamining its

determinations of state law questions. See Estelle v. McGuire, 502 U.S. 62, 67–68

(1991). But a state court is not free to define an element out of existence, or to

ignore the element entirely when upholding a criminal conviction. Such a ruling is

contrary to clearly established federal law, namely Jackson v. Virginia. See 28




      11
         (...continued)
Goldyn’s habeas petition: It is undisputed that, as the Nevada Supreme Court
itself found, the payees of Goldyn’s checks were uninjured. See p. 7 supra.
Having previously narrowed the scope of the statute to exclude situations in which
the payees are unharmed, the Nevada Supreme Court was not free to expand the
scope of the statute during Goldyn’s appeal to cover Goldyn’s otherwise innocent
conduct. Such a retroactive expansion of the scope of a criminal statute violated
Goldyn’s due process rights. See Marks v. United States, 430 U.S. 188, 191–92,
195 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353–54 (1964) (“Indeed, an
unforeseeable judicial enlargement of a criminal statute, applied retroactively,
operates precisely like an ex post facto law, such as Art. I, § 10, of the
Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause
from passing such a law, it must follow that a State Supreme Court is barred by the
Due Process Clause from achieving precisely the same result by judicial
construction.”).
                                                                            page 19
U.S.C. § 2254(d)(1).12 Indeed, the quintessence of a Jackson claim—the very

meaning of In re Winship—is that every element of a crime must be proven

beyond a reasonable doubt.

      The simple fact is that the checks Goldyn wrote were not bad; they were

paid in full pursuant to a contract under which she had bound herself to repay the

bank for the monies so advanced. Goldyn thus had an “an arrangement or

understanding with [NFCU] for the payment of [her] check[s].” Nev. Rev. Stat.

205.130(4). The Nevada Supreme Court’s own finding that NFCU was obligated

to pay Goldyn’s checks establishes as a matter of law that Goldyn had sufficient

“credit”—as defined by the Nevada statute—to cover her checks.13 No “rational


      12
          For a simple example, consider a state court that is trying a murder case,
where the state’s definition of murder includes the requirement that the victim be
dead. If there is uncontroverted evidence and a factual finding by the state court
that the victim is only badly injured—say, comatose—then the state court cannot
uphold the defendant’s conviction. On federal habeas review, we would be
compelled to conclude that the evidence was insufficient to support the conviction.
See Jackson, 443 U.S. at 318–19, 323–24. We would not be forced to accept the
state court’s decision to interpret “dead” as meaning “badly injured,” because such
an expansion of the criminal statute would violate the defendant’s clearly
established federal due process rights. See 28 U.S.C. § 2254(d)(1).
      13
         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 evidence to that effect. In any
event, NFCU’s decision to cover Goldyn’s checks cannot be described as anything
                                                                      (continued...)
                                                                             page 20
trier of fact could have found” otherwise. See Jackson, 443 U.S. at 319.

      Of course, Goldyn might have been prosecuted for defrauding the bank.

But the state charged her with writing bad checks, not fraud on the bank. And

Goldyn cannot be sent to prison for a crime she didn’t commit because she may be

guilty of a different crime altogether. “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 promise to pay Goldyn’s checks in full regardless of

the funds in her account, and Goldyn’s counter-promise to repay the bank—could

possibly have been a bad check. Because “there is no factual basis for [Goldyn’s]

conviction . . . it follows inexorably that [she] has been denied due process of law.



      13
        (...continued)
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).
                                                                             page 21
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 Winship, 397 U.S. at 364).

      We are saddened and dismayed that Goldyn spent twelve years behind bars

for conduct that is not a crime—or, at least, is not the crime with which she was

charged. We remand to the district court for the immediate entry of a judgment

granting the petition and issuing an unconditional writ of habeas corpus vacating

Goldyn’s conviction.14


      REVERSED.




      14
         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.
                                                                        page 22
                                   Counsel

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

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