                   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
GWENDOLYN MITCHELL, Warden,
                                                ORDER
             Respondent-Appellee.
                                        
                      Filed July 14, 2006

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

                            Order;
                     Dissent by Judge Bea


                            ORDER

  The panel voted to deny the petition for panel rehearing.
Judge Pregerson has voted to deny the petition for rehearing
en banc, and Judges Canby and Reed have so recommended.

  The petition for en banc rehearing has been circulated to
the full court. A judge requested a vote on whether to rehear
the matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed R. App. P. 35.

  The petition for panel rehearing and the petition for rehear-
ing en banc are denied.

  *The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.

                               7815
7816                     SMITH v. MITCHELL
BEA, Circuit Judge, with whom KLEINFELD, GRABER,
TALLMAN, and CALLAHAN, Circuit Judges, join, dissent-
ing from denial of rehearing en banc:

  I write to make clear our court has, by its decision in this
case, made a substantial departure from settled principles of
review of jury determinations of fact in criminal cases.

   In this case, our court decides the opinions of three Board-
certified physicians called by the prosecution that Smith’s
shaking of baby Etzel caused his death must be substituted
with the contrary opinions of non-Board-certified physicians
called by the defense. Why? Because the defense’s doctors
testified that a finding was absent on autopsy, and that finding
was crucial and undermined the prosecution experts’ testi-
mony. The three physicians called by the prosecution dis-
agreed with the defense doctors, and explained why such a
finding was not crucial. Our court simply accepts the defense
theory and rejects the prosecution’s evidence. The jury was
perfectly able to do just that. But when our court does it, it
steps over the line dividing the province of the jury from that
of the court.

   This decision would be bad enough were we reviewing a
district court’s judgment. But here, it is doubly bad for we are
reviewing a state court decision under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”)1 which severely
restricts the scope of our review, and mandates that “we apply
the standards of Jackson with an additional layer of defer-
ence.” Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005),
cert. den., 126 S. Ct. 1142 (2006).
  1
   Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 U.S.C.
§ 2241 et seq.
                       SMITH v. MITCHELL                    7817
                                I

   In 1997, Shirley Ree Smith was convicted by a California
jury of the unlawful killing of her seven-week-old grandson,
Etzel Glass (“Etzel”). On the night of Etzel’s death, Smith
was staying with her daughter Tomeka, the infant’s mother,
along with her two other young grandchildren and two of
Tomeka’s sister’s children. Around midnight, Tomeka fed,
changed, and washed baby Etzel before placing him to sleep
on the living room sofa. Baby Etzel shared this sofa with his
18-month-old brother, Yondale, and four-year-old sister,
Yolanda. Smith was also in the living room, sleeping on the
floor. When Tomeka put Etzel to sleep at 11:30 p.m., he
appeared healthy.

   In her two interviews, Smith recounted different versions of
the events that followed. First, Smith told a social worker,
Linda Reusser, that she awoke after 3 a.m. when Etzel’s
brother Yondale had a nightmare. After comforting Yondale,
Smith went over to check Etzel. Etzel didn’t respond to her
touch; she picked Etzel up and his head “flopped back.” She
then gave Etzel “a little shake, a jostle to awaken him,” to
which Etzel did not respond. Reusser described the shaking to
the jury as “a quick jostle,” a “smooth motion.”

   At this point, Smith stopped speaking. When Reusser
prompted Smith to continue, she said “something like ‘Oh,
my God. Did I do it? Did I do it? Oh, my God.’ ” Smith’s
daughter Tomeka turned to Smith and said: “If it wasn’t for
you, this wouldn’t have happened.” Smith didn’t say any-
thing.

   Smith told a slightly different story to the police who inter-
viewed her as part of the criminal investigation. Smith stated
that Yondale awoke from his nightmare sometime before 3
a.m.; Smith rose and checked Etzel; Etzel was fine. Then, past
3 a.m., Etzel’s sister Yolanda rolled off the couch and fell
onto Smith. On waking, Smith noticed that Etzel’s diaper
7818                      SMITH v. MITCHELL
needed changing. After going to the bathroom to take her
medicine, Smith picked up Etzel and saw he had “spit up”
around his mouth, and his head was “flopped back.” Smith
said something to Etzel and he didn’t respond; he was not
breathing or moving. At first, Smith told the police she
“shook” Etzel, but then corrected herself, and said she “twist-
ed” him back and forth to get a response. When asked about
her statement to Reusser, Smith denied saying that she had
“shaken” Etzel.

   Smith then carried Etzel, who was not responsive, into
Tomeka’s room. Smith and Tomeka called 9-1-1. After
unsuccessful attempts at cardio-pulmonary resuscitation
(“CPR”) by the family and the paramedics, Etzel was taken
to the hospital. Soon after his arrival, he was declared dead.
The physician attending at the hospital suspected Etzel had
died of Sudden Infant Death Syndrome (“S.I.D.S.”), which, as
one defense expert put it, is “a medical[ly] sophisticated way
of saying the child died and we really don’t have any idea
what it died from.” The only injury the paramedics noticed
was fresh blood in one of Etzel’s nostrils. In such cases, the
doctor lists “suspected S.I.D.S.” as the cause of death, pend-
ing an autopsy.

   But here, the autopsy revealed signs of recent trauma to
Etzel’s brain. When the autopsy surgeon lifted Etzel’s brain
out of the skull, she saw fresh blood on top of the brain
(“subdural”2 blood). The subdural blood measured one or two
tablespoons. The surgeon also saw a fresh blood clot between
the hemispheres of Etzel’s brain, and recent hemorrhaging
around the optic nerves. Further, she found a small quantity
of fresh “subarachnoid” blood. Finally, the surgeon and her
supervisor noticed a small bruise at the left lower-back part of
Etzel’s head, and a recent abrasion at the same site.
  2
   As an expert testified below, the brain is protected by three sheaths or
membranes: the dura, the arachnoid, and the pia. Blood found between the
dura and the arachnoid is referred to as “subdural.” Blood between the
arachnoid and the pia is referred to as “subarachnoid.”
                           SMITH v. MITCHELL                           7819
   Dr. Carpenter, the autopsy supervisor, opined Etzel had
died by being violently shaken (“shaken baby syndrome”).3
According to Carpenter, death from violent shaking can occur
in three ways: (1) massive swelling of the brain; (2) massive
bleeding sufficient to crush the brain stem; or (3) a sudden
shaking “so violent that it destroys the vital centers in the
brain and is a quick death.” Here, Carpenter opined that death
occurred through the last process, as Etzel’s head had under-
gone whiplash from chin to chest. The death occurred too
quickly for visible trauma to develop on the brain stem itself.

   Dr. Carpenter explained the basis of his opinion as the
recent trauma to Etzel’s brain and the absence of other causes.
The subdural blood, the subarachnoid blood, and the blood
around the optic nerves showed “violent trauma to the head
sufficient to cause the death of the infant.” The bruise and
abrasion had, in Carpenter’s opinion, “very probably”
occurred during the shaking episode, as the head collided with
a hard, rough surface.4

   The alternate causes of death that Carpenter considered
didn’t make sense to him. First, Carpenter ruled out S.I.D.S.
because “[a case] is never called a S.I.D.S. if there is any sus-
picion of trauma to the infant.” Second, Carpenter ruled out
that a fall from the sofa onto a carpeted floor could have
caused Etzel’s injuries or death. Third, Carpenter considered
the evidence of an old injury to Etzel’s brain, such as birth
  3
     Dr. Carpenter was Board-certified in forensic, anatomic, and clinical
pathology. Tr. 534-36. “Board-certified” means the physician has first
practiced a certain number of years in the field of specialty which the
Board regulates. To gain certification as a specialist by the Board, the phy-
sician must then take certain written tests. Last, upon successful comple-
tion of those tests, the physician must sit successfully for oral examination
by a group of Board-certified specialists. Only then can the physician
become “Board-certified.”
   4
     While Dr. Carpenter could not rule out that Etzel’s head received a
blow from a weapon, the bruise and abrasion were too small to indicate
a blow that could have caused all of the trauma in Etzel’s brain.
7820                   SMITH v. MITCHELL
trauma, as the cause of death. While he could not exclude the
old injury as contributing to Etzel’s death, the old injury was
“not sufficient to cause death in that the infant had apparently
sufficiently recovered from this injury and was appearing to
look normal to others.”

   Under Jackson, Dr. Carpenter’s opinion alone suffices to
support the jury’s finding on causation. But then the prosecu-
tion called two other Board-certified doctors, who testified
that violent shaking was the cause of death. Notably, the pros-
ecution’s witness on rebuttal, Dr. Chadwick, had published
articles on how to distinguish between falls and abusive inju-
ries in children. Based in part on his own research, Chadwick
opined that a fall from the sofa was “extremely unlikely” to
cause death. Chadwick also explained that the old trauma was
not the cause of death because old injuries do not cause sud-
den death without a specific pathology that was absent in this
case. In short, Chadwick saw “no other natural or unnatural
cause except the injury that would explain [Etzel’s] death,”
and, therefore, opined that Etzel died from shaken baby syn-
drome.

   The defense’s two expert witnesses, by contrast, opined
that the necessary physical evidence of shaken baby syndrome
was lacking. Dr. William Goldie opined the cause of death
was S.I.D.S. Dr. Richard Siegler opined that the death was
traumatic, but that it was impossible to isolate the cause of
death between the recent and the old trauma. Significantly,
both Goldie and Sielger would only diagnose Etzel’s death as
shaken baby syndrome on a finding of visible injury to the
shorn region of the brain stem. Even if death were instanta-
neous, Goldie opined that hemorrhages in the neck or brain
stem would be present. Thus, the experts for the prosecution
and the defense disagreed on a fundamental point: to be valid,
does a doctor’s opinion that a baby died from violent shaking
require evidence, visible on autopsy, of brain stem shearing?

  The jury resolved this conflict among the experts’ opinions
against Smith. The California Court of Appeal, after review-
                       SMITH v. MITCHELL                     7821
ing the medical evidence, affirmed the conviction because
“[i]t was for the jury to resolve the conflicts” in that evidence.
The California Supreme Court denied review. On federal
habeas review, the Magistrate Judge recommended denying
Smith’s petition for the same reason as the California Court
of Appeal. Notwithstanding the tragedy of Smith’s case, it
was the jury’s province to choose between the conflicting
expert opinions. The district court accepted the recommenda-
tion and denied Smith’s habeas petition.

                                II

   Our court, however, granted habeas relief on the ground of
insufficient evidence of causation. See Smith v. Mitchell, 437
F.3d 884 (9th Cir. 2006). Claims of insufficient evidence are
judged according to a familiar standard: we ask whether,
“after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319. AEDPA requires the federal courts
to review Jackson claims with additional deference, and only
grant habeas relief where the state court’s adjudication of a
Jackson claim is objectively unreasonable. See Smith, 437
F.3d at 889 (citing Juan H., 408 F.3d at 1274-75 & nn.12-13).

   To grant habeas relief, the opinion set aside the qualified
opinions of the prosecution’s experts by misconstruing the
basis for their opinions. “[T]heir testimony was that death was
caused by the shearing or tearing of the brain stem and”—
according to the opinion—“they reached this conclusion
because there was no evidence in the brain itself of the cause
of death.” Smith, 437 F.3d at 890.

  Not so; the opinion is inaccurate.

   The physicians called by the prosecution reached their con-
clusion despite the lack of visible shearing, not because of it,
and explained why. Indeed, what provided the basis for the
7822                   SMITH v. MITCHELL
doctors’ opinions was the evidence of recent trauma to Etzel’s
brain: (1) the subdural hemorrhaging; (2) the subarachnoid
hemorrhaging; (3) the hemorrhaging around the optic nerves;
(4) the blood clot between the hemispheres of Etzel’s brain;
and (5) the bruise and abrasion at the lower back of Etzel’s
head. The prosecution’s experts considered and rejected other
causes of Etzel’s death, such as a fall from the sofa, or the
aggravation of Etzel’s older injury. Since none of these alter-
nate theories explained Etzel’s death, the prosecution’s doc-
tors opined that Etzel died from violent shaking, as evidenced
by the trauma.

   Not once did the prosecution’s doctors voice the supposed
basis the opinion attributes to them. Rather their opinions
were based on the evidence of the child’s injuries, notwith-
standing that they did not see the brain stem shearing on
autopsy.

   In effect, the opinion adopts the defense experts’ view of
what physical evidence is necessary to support a valid diagno-
sis of shaken baby syndrome. Specifically, the opinion relies
on Dr. Siegler’s aspersion of the prosecution’s theory as “total
fantasy,” when there is “no way to confirm it or deny it” with
direct physical evidence. The opinion similarly concludes
“there simply was no evidence to permit an expert conclusion
one way or the other,” absent the physical evidence Siegler
demanded. See Smith, 437 F.3d at 890.

   But the prosecution’s experts explained why they would
not expect to see physical evidence of tearing in Etzel’s brain
stem: Etzel’s death happened so quickly that the effects of the
trauma did not have time to develop. That is, there was no
swelling in the torn brain stem tissue because the child’s
instant death closed down its circulation.

   The opinion buttresses its conclusion by pointing to the
absence of various factors that are “typically,” “usually,” or
“frequently” present in cases of shaken baby death. See Smith,
                           SMITH v. MITCHELL                           7823
437 F.3d at 887. For instance, the opinion points to the
absence of retinal bleeding, which is present in 80-85% of
shaken baby cases, and almost never present otherwise. Yet
Dr. Carpenter testified that the absence of retinal bleeding did
not change his opinion on the cause of death. Even the
defense doctor, Dr. Siegler, did not think retinal hemorrhages
were necessary to diagnose shaken baby syndrome. Thus, the
absence of these “usual” symptoms simply constitutes cir-
cumstantial evidence favorable to the defense, not a failure of
proof as to an essential element of the prosecution’s case.

   Although Smith did not challenge the admissibility of the
prosecution’s experts’ testimony, the opinion’s analysis effec-
tively makes the qualification of experts an issue on appeal.5
Up to now, the ceaselessly litigated question of whether
expert testimony is “junk science” has been channeled
  5
    The overlap between the sufficiency of the evidence and qualification
of experts is illustrated by the opinion’s reliance on United States v. Bois-
soneault, 926 F.2d 230, 234 (2d Cir. 1991). There, the Second Circuit
reversed a conviction for possession of cocaine with the intent to distrib-
ute. The defendant was found carrying 5.31 grams of cocaine; $1,460 in
ten and twenty dollar bills; and many slips of paper bearing names,
addresses, and telephone numbers. Id. at 231. The question was whether
this evidence permitted the inference of intent to distribute the 5.31 grams.
Over defense objection, the government called an expert who opined that
the evidence was consistent with “classic street level distribution of small
quantities of cocaine.” Id. at 232. On appeal, the defendant challenged
both the admission of this testimony and the sufficiency of the evidence.
Id. at 231. The Second Circuit reversed for insufficient evidence. Without
deciding the evidentiary issue, the court held that conclusory opinions that
“ambiguous conduct constitutes criminal activity” do not count toward
establishing the sufficiency of the evidence. Id. at 234.
   Boissoneault is directly contrary to California Evidence Code § 805,
which allows opinion testimony as to ultimate facts. Moreover, the subject
of the opinion in Boissoneault was whether ambiguous conduct is crimi-
nal, an area where expert opinion is of little help to the trier of fact. See
United States v. Young, 745 F.2d 733, 765-66 (2d Cir. 1984) (Newman,
J., concurring). By contrast, whether autopsy results establish the cause of
death is a question on which expert opinion is indispensable to the jury.
7824                     SMITH v. MITCHELL
through the Daubert6 and Kelly/Frye7 tests governing the
qualification and admissibility of expert testimony. Under our
court’s approach, a federal court of appeals may, effectively,
set aside an expert opinion where it conflicts with the views
of the other side’s experts.

   Here, the prosecution’s experts based their opinions on the
evidence of recent trauma to Etzel’s brain, and explained how
a rapid death would result in brain-stem tearing that could not
be seen. When the defense’s experts disputed the validity of
this hypothesis, it was for the jury to resolve the conflicting
opinions. Accordingly, the California Court of Appeal cor-
rectly applied Jackson in affirming Smith’s conviction.

   Because our court’s rejection of qualified expert opinions
distorts Jackson analysis and contravenes AEDPA’s required
deference, I respectfully dissent from the denial of rehearing
en banc.




  6
    Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593
(1993).
  7
    People v. Kelly, 549 P.2d 1240, 1244 (1976) (citing Frye v. United
States, 239 F. 1013, 1014 (D.C. Cir. 1923)).
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