                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ANTHONY GARCIA,                            No. 02-56895
              Petitioner-Appellee,
               v.                            D.C. No.
                                           CV-01-03455-R
TOM L. CAREY, Warden,
                                             OPINION
           Respondent-Appellant.
                                     
       Appeal from the United States District Court
          for the Central District of California
        Manuel L. Real, District Judge, Presiding

                  Argued and Submitted
          February 4, 2004—Pasadena, California

                  Filed January 20, 2005

   Before: J. Clifford Wallace, William C. Canby, Jr., and
              Sidney R. Thomas, Circuit Judges.

                 Opinion by Judge Canby;
                 Dissent by Judge Wallace




                            875
                      GARCIA v. CAREY                    877


                        COUNSEL

Lawrence M. Daniels, Deputy Attorney General, Los Ange-
les, California, for the respondent-appellant.

Isaac E. Guillen, Robert P. Ramirez, Covina, California, for
the petitioner-appellee.


                         OPINION

CANBY, Circuit Judge:

   Petitioner Anthony Garcia was convicted of robbery in Cal-
ifornia state court. The jury found that the robbery was gang
related, and that a gun had been used. Garcia’s sentence was
increased because of those two findings. After exhausting
state remedies, Garcia filed a petition for habeas corpus in
federal court, pursuant to 28 U.S.C. § 2254, challenging his
878                          GARCIA v. CAREY
sentence. The district court granted the petition on the ground
that there was constitutionally insufficient evidence to support
the imposition of the gang and gun sentencing enhancements.
The State, in the person of prison warden Tom Carey,
appeals. We affirm the district court’s grant of habeas relief.1

                            I.   Background

   The jury found to be true the allegation that Garcia had
committed the robbery “for the benefit of, at the direction of,
or in association with [a] criminal street gang, with the spe-
cific intent to promote, further, or assist in any criminal con-
duct by gang members.” CAL. PENAL CODE § 186.22(b)(1)
(emphasis added).2 The disputed issue on this appeal is
whether the evidence was sufficient, under applicable federal
habeas corpus standards, to support the jury’s finding of the
required specific intent: that is, the intent to “promote, further,
or assist in” other criminal activity of the gang apart from the
robbery of conviction.
  1
   We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
  2
   CAL. PENAL CODE § 186.22(b)(1) provides:
      Except as provided in paragraphs (4) and (5), any person who is
      convicted of a felony committed for the benefit of, at the direc-
      tion of, or in association with any criminal street gang, with the
      specific intent to promote, further, or assist in any criminal con-
      duct by gang members, shall, upon conviction of that felony, in
      addition and consecutive to the punishment prescribed for the fel-
      ony or attempted felony of which he or she has been convicted,
      be punished as follows:
      (A) Except as provided in subparagraphs (B) and (C), the per-
      son shall be punished by an additional term of two, three, or four
      years at the court’s discretion.
      (B) if the felony is a serious felony, as defined in subdivision
      (c) of Section 1192.7, the person shall be punished by an addi-
      tional term of five years.
      (C) if the felony is a violent felony, as defined in subdivision
      (c) of Section 667.5, the person shall be punished by an addi-
      tional term of 10 years.
                             GARCIA v. CAREY                               879
   The jury also found to be true that a principal in the offense
had used a gun in connection with the robbery. See CAL.
PENAL CODE §§ 12022.53(b) and (e)(1).3 Because it was Gar-
cia’s accomplice, and not Garcia himself, who allegedly used
a gun during the robbery, Garcia can be subject to the gun
enhancement only if the crime was gang-related within the
meaning of § 186.22(b)(1). See CAL. PENAL CODE
§ 12022.53(e)(1)(A). This entire appeal therefore turns on the
validity of the gang enhancement. With that point in mind, we
turn to the facts.

   The evidence relating to the robbery was not complicated.
Garcia was a member of a gang known as El Monte Flores,
or E.M.F. Its “turf” or territory extended to much of the City
of El Monte, California. In the early morning hours of January
18, 1998, the victim, Ricardo Bojorquez, entered a liquor
store in El Monte. Two or three other persons, including Gar-
cia, were in the store. As he walked to the counter, Bojorquez
nodded toward Garcia and said “How do you do?” Garcia
responded, “You know me?” Bojorquez answered, “No, I’m
  3
   CAL. PENAL CODE § 12022.53 provides, in relevant part:
      ...
      (b) Notwithstanding any other provision of law, any person
      who, in the commission of a felony specified in subdivision (a),
      personally uses a firearm, shall be punished by an additional and
      consecutive term of imprisonment in the state prison for 10 years.
      The firearm need not be operable or loaded for this enhancement
      to apply.
      ...
      (e)(1) The enhancements provided in this section shall apply to
      any person who is a principal in the commission of an offense if
      both of the following are pled and proved:
      (A)   That the person violated subdivision (b) of Section 186.22.
      (B) Any principal in the offense committed any act specified in
      subdivision (b), (c), or (d).
      ...
880                    GARCIA v. CAREY
just saying how are you.” Garcia then said, “If you don’t
know me, don’t be talking to me.” Bojorquez continued walk-
ing toward the counter and said “Whatever.” Garcia then
asked Bojorquez if he had any change, and Bojorquez
answered that he did not. Garcia then said, “Let’s see when
you come out the door.” One of Garcia’s companions asked
Bojorquez where he was from, but Bojorquez did not answer.

   When Bojorquez tried to leave the store, Garcia stood in
front of him and said, “I’m Little Risky from E.M.F.” He also
said, “you want to get jacked [robbed]?” Garcia told his com-
panions to watch for the police. He then took $14.85 from
Bojorquez’s shirt pocket. One of Garcia’s companions lifted
his own shirt and grabbed the handle of what Bojorquez
thought was a pistol. Garcia told one of his companions to
take Bojorquez’s bicycle. Bojorquez objected that the bicycle
was not his. The companion handed the bicycle to Garcia and
he and his companions left with it.

  The crime was reported to the police and Bojorquez gave
police a statement relating the above facts. He also identified
Garcia. At trial, however, he testified that he did not remem-
ber what was stated by the gang members at the time of the
robbery, and he further testified that Garcia was not one of the
persons who accosted him. The liquor store owner, who knew
Garcia prior to the incident, testified that Garcia was the one
who took the money from Bojorquez.

   Santos Hernandez, an El Monte Police Detective, testified
as an expert on gangs. Detective Hernandez testified that El
Monte Flores, known as “E.M.F.” was the largest street gang
in El Monte and that E.M.F.’s “turf” included the area known
as Little Five Points, where the liquor store in question was
located. Detective Hernandez testified that the gang was “turf
oriented.” Detective Hernandez also testified about three other
robberies that had been committed by E.M.F. members, and
he stated that robberies, often involving small amounts of
money, were one of the primary activities of E.M.F. Detective
                           GARCIA v. CAREY                          881
Hernandez knew that Garcia was an E.M.F. member. Finally,
he testified that it was common for victims of gang-related
crimes to backtrack on statements they initially made about
the crimes because of the “fear intimidation process.”4

   The jury returned a guilty verdict on the robbery charge and
a finding of “true” on both the gang and gun enhancements.
Garcia was sentenced consecutively to six years for the rob-
bery, ten years for the gun enhancement, and five years for a
previous conviction under CPC § 677(a)(1), for a total of 21
years in state prison. The judge also sentenced Garcia to two
years for the gang enhancement, but stayed judgment on that
enhancement until Garcia completed his prison term and
parole.

   The California Court of Appeal affirmed Garcia’s convic-
tion and sentence, and the Supreme Court of California denied
Garcia’s petition for review. Garcia filed a petition for writ of
habeas corpus in the United States District Court for the Cen-
tral District of California. The magistrate judge’s report and
recommendation concluded that there was insufficient evi-
dence to support the gang and gun sentencing enhancements.
The district court adopted the findings of the magistrate judge
and granted Garcia’s habeas petition. The district court deter-
mined that habeas relief was proper because “the prosecution
failed to present any direct or circumstantial evidence that
[Garcia] robbed Bojorquez with the specific intent to pro-
mote, further, or assist in other criminal conduct by the
E.M.F. street gang.”
  4
    In explanation, Detective Hernandez stated: “Sometimes the victim
will be contacted and told not to come and testify, something will happen
to them or to their family or if they work in the city, when they come to
work, something will happen to them.” There is no evidence in the record,
however, that such threats were made in this case.
882                         GARCIA v. CAREY
                            II.   Discussion

   We review de novo the district court’s order granting Gar-
cia’s petition for a writ of habeas corpus. Clark v. Murphy,
331 F.3d 1062, 1067 (9th Cir. 2003). A defendant alleging
that the evidence was insufficient to support his conviction
can obtain relief only if, “upon the record evidence adduced
at the trial[,] no rational trier of fact could have found proof
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 324 (1979) (emphasis added). It appears to be an
open question in this circuit whether the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), adds a second level of deference to this standard,
so that a federal habeas petitioner may obtain relief only by
demonstrating that the state court’s adjudication on the merits
of the claim involved an unreasonable application of Jack-
son’s “no rational trier of fact” standard. See Chein v. Shum-
sky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc). Like our en
banc court in Chein, we do not decide the affect of AEDPA
on Jackson because we reach the same result whether we
review directly under Jackson or whether we review more
deferentially the state court’s application of Jackson under
AEDPA’s standard. See id.

   [1] The gang sentencing enhancement required the prosecu-
tion to prove that Garcia committed the robbery for the bene-
fit of, at the direction of, or in association with a gang, and
that he committed the crime with the specific intent to pro-
mote, further, or assist in criminal conduct by gang members.5
CAL. PENAL CODE § 186.22(b)(1). There is nothing in this
  5
    It is important to keep these two requirements of the gang enhancement
separate. For example, People v. Olguin, 31 Cal. App.4th 1355 (1994),
cited by the California Court of Appeal in affirming Garcia’s sentence,
dealt with a challenge to the sufficiency of the evidence to meet the first
requirement — that the crime of conviction be “for the benefit of, at the
direction of, or in association with” a criminal street gang — not the sec-
ond requirement of specific intent to further other criminal activity of the
gang. See id. at 1382.
                            GARCIA v. CAREY                            883
record, however, that would support an inference that Garcia
robbed Bojorquez with the specific intent to facilitate other
criminal conduct by the E.M.F. The evidence indicates that
Garcia was a gang member and that he robbed Bojorquez in
an area known to be in the heart of the gang’s “turf.” Detec-
tive Hernandez, the gang expert, testified that the gang was
“turf oriented,” and he described three other robberies com-
mitted by E.M.F. members in El Monte during the few
months prior to Garcia’s offense.6 But there is no evidence
indicating that this robbery was committed with the specific
purpose of furthering other gang criminal activity, and there
is nothing inherent in the robbery that would indicate that it
furthers some other crime. There is nothing on the record that
connects the “turf-oriented” nature of the gang with the com-
mission of robberies generally, or, more importantly, with the
commission of this robbery in particular. There is no testi-
mony that protection of turf enables any other kind of crimi-
nal activity of the gang. The expert’s testimony is singularly
silent on what criminal activity of the gang was furthered or
intended to be furthered by the robbery of Bojorquez.

  [2] The California Court of Appeal,7 with one justice dis-
senting, held that the jury could properly conclude that the
robbery of Bojorquez

      was one in a series of street robberies committed by
      E.M.F. gang members in the southern part of El
      Monte, including the Five Points Area, not only to
      obtain the property of the victims, but also as a
      means of instilling fear of the gang in the residents
  6
     These robberies helped to qualify El Monte Flores as a “criminal street
gang,” see CAL. PENAL CODE § 186.22(f), that was engaged in a “pattern
of criminal activity,” see id. § 186.22(e).
   7
     The decision of the California Court of Appeal was the last “ex-
plained” decision of Garcia’s appeal, because the California Supreme
Court denied review without comment. We therefore look to the opinion
of the Court of Appeal as embodying California’s decisional rationale. See
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
884                        GARCIA v. CAREY
      of the neighborhood, and thereby facilitating the
      gang’s criminal operations in the area.

For reasons we have just set forth, however, we agree with the
federal magistrate judge that “there is absolutely nothing in
this record which would support an inference that [Garcia]
robbed Bojorquez in order to facilitate other gang related
criminal operations within El Monte.” The magistrate judge
also noted that this theory of specific intent had never been
argued to the jury by the prosecution and the jury had not
been asked to make such an inference. Any assumption by the
jury that the gang was involved in types of criminal activity
not mentioned in any of the testimony would be the purest of
speculation. There was testimony that the gang committed
robberies, but nothing to indicate why those robberies were
aided or intended to be aided by this robbery. Because there
was no testimony or other evidence to support a rational infer-
ence that the robbery of Bojorquez was committed with the
intent to further other criminal activity of E.M.F., the ruling
of the California Court of Appeal meets the deferential
AEDPA standard for federal habeas corpus relief: the ruling
is “an unreasonable application of [ ] clearly established Fed-
eral law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). The clearly established law,
as we have already stated, is Jackson v. Virginia, 443 U.S. at
324.8 To uphold the jury’s finding in the circumstances of this
case and in the absence of any evidence at all of specific
intent is not only an inaccurate, but an unreasonable, applica-
tion of Jackson.

  A decision of the California Supreme Court upholding a
gang enhancement provides an example of the kind of evi-
  8
   Although the California Court of Appeal did not expressly refer to
Jackson, that fact does not affect the application of the AEDPA standard.
Cf. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding that State
may comply with AEDPA standard without even being aware of govern-
ing Supreme Court decisions, so long as ruling does not contradict them).
                        GARCIA v. CAREY                      885
dence that can support a finding of the requisite specific
intent. In People v. Gardeley, 927 P.2d 713 (Cal. 1996), an
expert testified that an assault of the type involved there “was
a ‘classic’ example of gang-related activity”; the expert
explained “that criminal street gangs rely on such violent
assaults to frighten the residents of an area where the gang
members sell drugs, thereby securing the gang’s drug-dealing
stronghold.” Id. at 722. The California Supreme Court held
that such testimony permitted the jury reasonably to conclude
that the attack was committed with the necessary specific
intent to further other criminal activity of the gang. Id. No
comparable testimony was presented in Garcia’s case.

   [3] Other California cases also present examples of the kind
of evidence permitting an inference of specific intent to fur-
ther other criminal gang activity. See, e.g., People v. Aug-
borne, 104 Cal. App.4th 362, 372-73 (2002) (expert testified
to belief that crimes were committed for promotion and assis-
tance of criminal conduct by gang members); In re Ramon T.,
57 Cal. App.4th 201, 207-08 (1997) (finding gang enhance-
ment supported by expert evidence and unequivocal act where
the attack against a police officer who had another gang mem-
ber in custody was committed in order to assist the gang
member’s escape); California v. Ortiz, 57 Cal. App.4th 480,
484-85 (1997) (finding sufficient evidence to support a gang
enhancement where expert evidence was that a robbery and
murder were committed with the specific intent of framing a
rival gang for the crimes). Here, Detective Hernandez testified
that Garcia was a member of the E.M.F. gang, that the rob-
bery was committed on gang territory, and that the E.M.F.
gang was “turf-oriented.” Detective Hernandez did not offer
any testimony, however, on what was meant by being “turf-
oriented,” what implications arose from a gang being “turf-
oriented,” or how the gang’s “turf-oriented” nature could sup-
port the conclusion that this robbery was committed with the
specific intent to promote, further, or assist other gang related
criminal activity. Without this evidentiary link, it is unreason-
able to conclude that a rational jury could find that Garcia
886                    GARCIA v. CAREY
committed this robbery with the specific intent to facilitate
other gang crimes. There was simply a total failure of proof
of the requisite specific intent. The district court correctly
granted habeas relief on the gang enhancement, and on the
firearm enhancement that depended on it.

  AFFIRMED.



WALLACE, Senior Circuit Judge, dissenting:

   The majority concludes that habeas relief is warranted
because there is “no evidence” that Garcia committed the rob-
bery with the “specific intent to promote, further, or assist in
any criminal conduct by gang members.” CAL. PENAL CODE
§ 186.22(b)(1). I believe that the majority misinterprets the
requirements of section 186.22(b)(1), fails to credit the ratio-
nal inferences that could be made from the record, and misap-
plies the provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Thus, I respectfully dissent.

   My first disagreement with the majority’s analysis concerns
its interpretation of section 186.22(b)(1). See Chein v. Shum-
sky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) (“The Jack-
son standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by
state law” (internal quotations omitted)). The majority con-
tends that there was no evidence indicating what particular
criminal gang activity Garcia intended to further in commit-
ting the robbery. See Ante at 883 (“The expert’s testimony is
singularly silent on what criminal activity of the gang was fur-
thered or intended to be furthered by the robbery of Bojor-
quez”). But section 186.22(b)(1) does not require proof that
the crime of conviction was committed with the intent to fur-
ther some other specifically identified crime or category of
crimes, and California courts have rejected sufficiency of the
evidence claims even where such evidence was entirely lack-
                        GARCIA v. CAREY                      887
ing. See People v. Ortiz, 57 Cal. App. 4th 480, 484-85 (1997)
(sufficient evidence for gang enhancement where murder was
committed in such a manner as to incriminate a rival gang in
retaliation for an earlier incident); People v. Gamez, 235 Cal.
App. 3d 957, 978 (1991) (sufficient evidence where shooting
was a “retaliatory strike” for shooting of member of defen-
dant’s gang), overruled on other grounds, People v. Gardeley,
927 P.2d 713, 725 n.10 (Cal. 1996).

   Indeed, the California Court of Appeal rejected Garcia’s
challenge to the enhancement not because it thought the evi-
dence in the record linked the robbery to some other specifi-
cally identified criminal gang activity, but because the
evidence supported a rational inference that the robbery was
committed with the intent to “facilitat[e]” the “nefarious con-
trol of the Little Five Points area and its residents.” This “fa-
cilitation” theory is entirely consistent with the California
Supreme Court’s interpretation of section 186.22(b)(1). See
Gardeley, 927 P.2d at 722 (sufficient evidence where assault
was committed in public, and expert testified that gangs often
commit violent assaults in public “to frighten the residents of
an area where the gang members sell drugs, thereby securing
the gang’s drug-dealing stronghold”).

   This brings me to my second objection to the majority’s
analysis, which involves its assessment of the record evidence
in this case. Federal habeas relief is not warranted unless, at
the very least, a court can conclude that “after viewing the
evidence in the light most favorable to the prosecution, [no]
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). Thus, even assuming that AEDPA
does not require us to review state-court applications of Jack-
son deferentially (a point to which I shall soon return), we
may grant habeas relief in this case only if the record cannot
support beyond a reasonable doubt a rational inference that
the robbery was committed with the intent to facilitate
E.M.F.’s “nefarious control” of the gang’s “turf.” See United
888                      GARCIA v. CAREY
States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996) (“[W]e
must respect the exclusive province of the jury to determine
the credibility of witnesses, resolve evidentiary conflicts, and
draw reasonable inferences from proven facts, by assuming
that the jury resolved all such matters in a manner which sup-
ports the verdict” (internal quotations and alteration omitted)).

   The majority attempts to distinguish Gardeley on the
ground that the state’s expert in this case, Detective Her-
nandez, did not present testimony “comparable” to that
offered by the expert in Gardeley. Ante at 885. But, Gardeley
merely held that such expert testimony was sufficient to sup-
port a section 186.22(b)(1) enhancement, not that it was nec-
essary. The California Court of Appeal thought the evidence
in this case sufficient notwithstanding the absence of such
expert testimony, and its discussion of this issue is worth
quoting at length:

         The People contend the evidence permitted a
      rational jury to conclude the robbery had been com-
      mitted with the specific intent to control and main-
      tain gang turf. (People v. Olguin (1994) 31 Cal. App.
      4th 1355, 1382-83; People v. Ortiz (1997) 57 Cal.
      App. 4th 480, 484-85.) Specifically, the People point
      out the robbery took place at Little Five Points in the
      “ ‘heart’ of E.M.F. turf,” Bojorquez was unknown to
      Garcia, Garcia identified himself by a gang moniker,
      indicated he was a member of E.M.F., and asked
      where Bojorquez was from, robbery was one of the
      gang’s principal activities, and the gang was “turf
      oriented.”

         We agree the evidence was sufficient to support
      the enhancement. Based on the testimony of Detec-
      tive Hernandez regarding the nature of gangs in gen-
      eral, and E.M.F. in particular, the jury could
      conclude the robbery of Bojorquez was not a random
      street robbery. Rather, it was one in a series of street
                       GARCIA v. CAREY                        889
    robberies committed by E.M.F. gang members in the
    southern part of El Monte, including the Five Points
    Area, not only to obtain the property of the victims,
    but also as a means of instilling fear of the gang in
    the residents of the neighborhood, and thereby facili-
    tating the gang’s criminal operations in the area.
    Residents intimidated in this fashion are less likely
    to report crime, among other things. Indeed, it rea-
    sonably can be inferred from the evidence that Gar-
    cia took umbrage when Bojorquez spoke to him and
    robbed Bojorquez not only to obtain his property,
    but also to intimidate Bojorquez, who apparently
    was not a local resident, and to put Bojorquez on
    notice that E.M.F. controlled the turf in the area. The
    nefarious control of the Little Five Points area and
    its residents qualifies, in our view, as criminal con-
    duct by gang members within the meaning of the
    statute.

   One judge dissented from the California Court of Appeal’s
rejection of Garcia’s claim, arguing that “if the evidence in
this case is sufficient to support the ‘gang’ enhancement, . . .
every crime committed by a gang member, without more,
would qualify for the enhancement.” But, as the Court of
Appeal’s majority opinion makes clear, the evidence support-
ing the gang enhancement was not limited to Garcia’s mere
gang member status. Importantly, the evidence showed that
Garcia asked Bojorquez, who Garcia did not know, where
Bojorquez was from and identified himself as “Little Risky
from E.M.F.” A rational juror could infer from this evidence
that Garcia intended to intimidate Bojorquez and the store
owner by letting them know that they were dealing with an
E.M.F. member on E.M.F. turf, so that Bojorquez, a perceived
challenger to the gang’s authority, would know not to intrude
on E.M.F. turf in the future and so that the store owner would
submit to the gang’s dominance. The California Court of
Appeal could properly conclude that there was sufficient evi-
dence that this form of intimidation would “facilitate” the
890                    GARCIA v. CAREY
gang’s “nefarious control” of the area and make it easier to
commit crimes there in the future, such as robbery, which was
one of E.M.F.’s “principal activities.” See Gardeley, 927 P.2d
at 722. I therefore cannot agree that “there was no testimony
or other evidence to support a rational inference that the rob-
bery of Bojorquez was committed with the intent to further
other criminal activity of E.M.F.” Ante at 884.

   Lastly, I disagree with the majority’s analysis of AEDPA.
On at least two occasions, we have avoided deciding whether
AEDPA requires a federal court reviewing a sufficiency of
the evidence claim to accord a state court decision rejecting
that claim an additional layer of deference beyond that built
into the Jackson standard. See Chein, 373 F.3d at 982-83;
Bruce v. Terhune, 376 F.3d 950, 956-57 (9th Cir. 2004) (per
curiam). The majority considers it unnecessary to decide how
AEDPA interacts with Jackson in this case as well, because
habeas relief supposedly is warranted even if AEDPA
requires us to review state court applications of Jackson def-
erentially.

   But if I assume that the California Court of Appeal incor-
rectly applied Jackson, as argued by the majority, I cannot
agree that AEDPA makes no difference in this case. Rather,
if AEDPA requires an additional level of deference, that def-
erence would preclude relief here. I would therefore reach the
question avoided in Chein and Bruce. As to that question,
another member of this court has persuasively explained why
AEDPA “clearly mandates not a direct application of Jack-
son, but a deferential review of a state court’s application of
Jackson.” Bruce, 376 F.3d at 960 (O’Scannlain, J., concur-
ring). Judge O’Scannlain pointed out that five circuits have
concluded “that a sufficiency of the evidence claim presents
a legal determination that must be evaluated through the
AEDPA standard of review embodied in § 2254(d)(1).” Id. at
958-59 (collecting cases). Although the case could be made
that state court decisions rejecting sufficiency of the evidence
claims are properly reviewed pursuant to section 2254(d)(2)
                       GARCIA v. CAREY                      891
(which asks whether a state court decision “was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding”) rather than
section 2254(d)(1), the important point is that AEDPA does
require some degree of additional deference. Indeed, “[n]o
circuit has explicitly held that a state court’s Jackson inquiry
is exempt from AEDPA’s standard of review.” Id. at 959.
Thus, regardless of which subsection of section 2254(d) gov-
erns the inquiry, the deference required by that statute would
preclude relief in this case.

   Had I been a member of the jury in Garcia’s state court
trial, I might well have rejected the gang enhancement.
Indeed, had I been a judge on the California Court of Appeal,
I might have found the evidence supporting that enhancement
insufficient. But that is not the inquiry commanded by
AEDPA. Pursuant to section 2254(d), we may grant habeas
relief only if the California Court of Appeal’s decision
involved an “unreasonable application” of Jackson or an “un-
reasonable determination” of the facts. I conclude that the
majority fails to accord the state court decision the deference
it is due.

  For these three reasons, I respectfully dissent.
