                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SHIRLEY REE SMITH,                            No. 04-55831
             Petitioner-Appellant,
               v.                               D.C. No.
                                             CV-01-04484-ABC
DEBORAH L. PATRICK,* Warden,
                                                OPINION
             Respondent-Appellee.
                                         
                    On Remand from the
                 United States Supreme Court

                    Filed December 4, 2007

    Before: Harry Pregerson and William C. Canby, Jr.,
 Circuit Judges, and Edward C. Reed, Jr.,** District Judge.

                      Per Curiam Opinion




  *Deborah L. Patrick is substituted for her predecessor, Gwendolyn
Mitchell, as Warden. Fed. R. App. P. 43(c)(2).
  **The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.

                              15895
                    SMITH v. PATRICK              15897


                      COUNSEL

Michael J. Brennan, Manhattan Beach, California, for the
petitioner-appellant.

Kristofer Jorstad, Deputy Attorney General, Los Angeles,
California, for the respondent-appellee.
15898                  SMITH v. PATRICK
                          OPINION

PER CURIAM:

   Shirley Ree Smith was convicted in California state court
of assault on a child resulting in death. The state court of
appeal affirmed her conviction, and the California Supreme
Court denied review. Smith then filed a federal habeas peti-
tion claiming that her conviction violated due process because
the evidence was constitutionally insufficient. The district
court denied the petition and Smith appealed. We reversed
and directed issuance of the writ. Smith v. Mitchell, 437 F.3d
884 (9th Cir. 2006). We held that no rational trier of fact
could have found beyond a reasonable doubt that Smith
caused the child’s death, and that the state court’s affirmance
of Smith’s conviction was an unreasonable application of
Jackson v. Virginia, 443 U.S. 307 (1979). Smith, 437 F.3d at
890.

   The State’s petition for panel and en banc rehearing was
denied, 453 F.3d 1203 (9th Cir. 2006), and the State filed a
petition for certiorari in the Supreme Court. While that peti-
tion was pending, the Supreme Court decided Carey v. Mus-
ladin, 127 S. Ct. 649 (2006). It then granted certiorari in this
case, vacated our judgment, and remanded “for further con-
sideration in light of Carey v. Musladin . . . .” Patrick v.
Smith, 127 S.Ct. 2126 (2007).

  We ordered supplemental briefing by the parties, and have
now reconsidered our decision as directed. We conclude that
our earlier decision is unaffected by Musladin, and we accord-
ingly reinstate our judgment and opinion.

                               I

  [1] The crucial issue in Musladin, as here on remand, is
whether a state court’s affirmance of a conviction “resulted in
a decision that was contrary to, or involved an unreasonable
                          SMITH v. PATRICK                       15899
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).1 In Musladin, the defendant was convicted of
murder in a trial during which members of the victim’s family
sat in the front row of the spectators’ gallery wearing buttons
displaying a photograph of the victim. On federal habeas
review, this court ordered the writ to issue, holding that the
state court had applied a test of inherent prejudice that was
contrary to or an unreasonable application of Supreme Court
precedent, Estelle v. Williams, 425 U.S. 501 (1976), and Hol-
brook v. Flynn, 475 U.S. 560 (1986). Musladin v. Lamarque,
427 F.3d 653, 656-58 (2005).

   [2] The Supreme Court vacated, holding that the precedent
on which the petitioner relied had been confined to
government-sponsored conduct. The Supreme Court had
never addressed a claim that private-actor courtroom conduct
(short of mob domination of a trial) was inherently prejudicial
to a fair trial. The effect of spectator conduct therefore was
“an open question” in Supreme Court jurisprudence. Mus-
ladin, 127 S.Ct. at 653. Accordingly, the state court decision
had not been contrary to or an unreasonable application of
clearly established federal law as determined by the Supreme
Court. Id. at 654.

                                   II

   [3] We find no comparable problem in this case. We held
that the opinion of the prosecution experts that shaking of the
infant had caused death was wholly unsupported by the physi-
cal evidence. The prosecution witnesses themselves testified
that the deceased infant’s brain disclosed no evidence to sup-
port their view that violent shaking had sheared the brain stem
in a manner that caused instantaneous death. The physician
who performed the autopsy also testified that further dissec-
  1
   Section 2254 was amended to its present form by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132 (1996).
15900                   SMITH v. PATRICK
tion of the brain would have disclosed no such evidence.
There was no dispute that the small amount of bleeding, and
the small abrasion on the scalp, could not have caused death.
There was, accordingly, a failure of evidence to support the
opinion of the expert witnesses that shaking had caused the
death. On the whole record, we concluded that the evidence
did not meet the standard of Jackson v. Virginia: no rational
juror considering all of the evidence in the light most favor-
able to the prosecution could find guilt beyond a reasonable
doubt. See Jackson, 443 U.S. at 319. The evidence was so
lacking that we further concluded that affirmance of Smith’s
conviction was an unreasonable application of Jackson.

   [4] Nothing in the State’s failure of evidence takes this case
out of the class of cases subject to the test of Jackson. Unlike
Musladin, where the private-actor conduct at issue had never
been the subject of Supreme Court consideration, this case
presents merely one more instance where the evidence pre-
sented by a state is wholly insufficient to permit a constitu-
tional conviction. Jackson makes clear that such cases cannot
constitutionally stand if the evidence was insufficient “to con-
vince a trier of fact beyond a reasonable doubt of the exis-
tence of every element of the offense.” Jackson, 443 U.S. at
316. This standard is not as severe for defendants as that
applied in Thompson v. Louisville, 362 U.S. 199 (1960),
which held it to be a violation of due process to convict on no
evidence. Jackson makes clear that a conviction is unconstitu-
tional even if there is some evidence of guilt when all of the
evidence, viewed in the light most favorable to the prosecu-
tion, does not permit any rational fact-finder to find guilt
beyond a reasonable doubt. Jackson, 443 U.S. at 314-18.
Smith’s case accordingly falls squarely within Jackson. More-
over, the prosecution’s evidence falls so far short that it was
unreasonable for the state appellate court to conclude that it
met the Jackson standard.

                               III

  [5] It is true, of course, that the Supreme Court has never
had a case where the issue was whether the evidence, expert
                           SMITH v. PATRICK                        15901
and otherwise, was constitutionally sufficient to establish
beyond a reasonable doubt that a defendant had shaken an
infant to death. But there are an infinite number of potential
factual scenarios in which the evidence may be insufficient to
meet constitutional standards. Each scenario theoretically
could be construed artfully to constitute a class of one. If there
is to be any federal habeas review of constitutional suffi-
ciency of the evidence as required by Jackson, however, sec-
tion 2254(d)(1) cannot be interpreted to require a Supreme
Court decision to be factually identical to the case in issue
before habeas can be granted on the ground of unreasonable
application of Supreme Court precedent. The Supreme Court
does not interpret AEDPA in such a constrained manner.

      AEDPA does not require state and federal courts to
      wait for some nearly identical factual pattern before
      a legal rule must be applied. Nor does AEDPA pro-
      hibit a federal court from finding an application of a
      principle unreasonable when it involves a set of facts
      different from those of the case in which the princi-
      ple was announced.

Panetti v. Quartermain, 127 S. Ct. 2842, 2858 (2007) (inter-
nal quotation marks and citations omitted); see also Van Pat-
ten v. Endicott, 489 F.3d 827, 828 (7th Cir. 2007) (“Neither
§ 2254 nor Musladin limits relief to the precise factual situa-
tions addressed in the Supreme Court’s previous cases.”).2
Habeas relief is appropriate under the “unreasonable applica-
tion” prong of section 2254(d)(1) when a state court violates
  2
    The requirement is different under one scenario of the “contrary to”
prong of section 2254(d)(1). A state-court decision is “contrary to” a
Supreme Court decision when the state court “confronts a set of facts that
are materially indistinguishable from a decision of [the Supreme Court]
and nevertheless arrives at a result different from [the Supreme Court’s]
precedent.” Williams v. Taylor, 529 U.S. 362, 406 (2000). The facts need
not be materially indistinguishable, however, for a grant of habeas relief
under the “unreasonable application” prong of section 2254(d)(1). See id.
at 407-08.
15902                  SMITH v. PATRICK
the principle of clearly-established federal law that has been
determined by the Supreme Court:

    A state-court decision that correctly identifies the
    governing legal rule but applies it unreasonably to
    the facts of a particular prisoner’s case certainly
    would qualify as a decision “involv[ing] an unrea-
    sonable application of . . . clearly established Federal
    law.”

Williams v. Taylor, 529 U.S. 362, 407-08 (2000) (brackets in
original); see also Abdul-Kabir v. Quarterman, 127 S. Ct.
1654, 1671 (2007) (holding that “ignoring the fundamental
principles established by our most relevant precedents” is a
factor leading to a result “contrary to” and “an unreasonable
application of” Supreme Court precedent). We conclude,
therefore, that Smith’s case easily falls within the principle
established by Jackson, and that the affirmance of Smith’s
conviction was an unreasonable application of Jackson.

   [6] We also reject the State’s contention that the Supreme
Court’s recent decision in Schriro v. Landrigan, 127 S. Ct.
1933 (2007), requires a more exact congruence between the
facts of Smith’s case and those of Jackson. In Landrigan, the
Supreme Court held that none of its precedents precluded a
state court from denying a claim of ineffective assistance of
counsel asserted by a defendant who told the court that he had
instructed his attorney not to present mitigation evidence. Id.
at 1942. The Supreme Court rejected this court’s ruling that
the state court had unreasonably applied Wiggins v. Smith,
539 U.S. 510 (2003), and Strickland v. Washington, 466 U.S.
668 (1984), stating that “[n]either Wiggins nor Strickland
addresses a situation in which a client interferes with coun-
sel’s efforts to present mitigating evidence to a sentencing
court.” Landrigan, 127 S. Ct. at 1942.

  [7] Here again, we fail to see a parallel between Landrigan
and Smith’s case. There was a structural difference between
                        SMITH v. PATRICK                   15903
the ineffective assistance cases on which Landrigan relied and
his case, in which he had prevented counsel from presenting
mitigation evidence in court. The existing Supreme Court
standards of ineffective assistance required tailoring or modi-
fication to apply to this new situation. No such adaptation of
the Jackson standard is required in order to apply it to Smith’s
case, one of many that simply involves a failure of proof. For
the same reasons that we find Smith’s case to be unaffected
by Musladin, we conclude that it also is unaffected by Landri-
gan.

                               IV

   Musladin also pointed out that, to be “determined by the
Supreme Court” within the meaning of section 2254(d), the
federal law in issue must be established by the holding, as
opposed to dicta, of the Supreme Court’s decision. Musladin,
127 S. Ct. at 653. “The Court’s ‘holding,’ ” however, neces-
sarily refers not only to the result reached, but also the ratio-
nale necessary to the reaching of that result. “When an
opinion issues for the Court, it is not only the result but also
those portions of the opinion necessary to that result by which
we are bound.” Seminole Tribe of Florida v. Florida, 517
U.S. 44, 67 (1996).

   [8] Although in Jackson the Supreme Court ultimately
denied relief because the evidence had been sufficient, it
reached that result only after settling on the constitutional
standard to govern the decision of that question. That standard
was that the evidence was sufficient if “any trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.” Jackson, 443 U.S. at 319. That standard,
adopted after much discussion, see id. at 313-319, was the
sole means by which the result was reached. It was not dic-
tum, and to our knowledge has never been treated as dictum.
Indeed, the State does not claim it to be dictum in its briefing.
Similarly, in Musladin, the Supreme Court did not treat the
rules of Williams and Flynn as dicta, even though in both
15904                  SMITH v. PATRICK
those cases habeas relief had been denied. We have no diffi-
culty, therefore, in concluding that the constitutional standard
announced in Jackson qualifies as holding, and not dictum,
for purposes of section 2254(d)(1).

                               V

  [9] We conclude, therefore, that our earlier opinion and
decision, which held the state court’s affirmance of Smith’s
conviction to be an unreasonable application of Jackson, is
unaffected by Musladin. We therefore reinstate our earlier
judgment and opinion, as reported at 437 F.3d 884.

  OPINION AND JUDGMENT REINSTATED.
