                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 23 2004
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 LAYBE TORRES,

                  Petitioner-Appellant,

           v.                                             No. 03-2098
                                                    District of New Mexico
 RON LYTLE,                                      (D.C. No. 02-1397 MCA/LCS)

                  Respondent-Appellee.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, McKAY and McCONNELL, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Laybe Torres was convicted in early 2002 of one count of retaliating

against a witness, Ralph Medina, in violation of N.M. Stat. Ann. § 30-24-3(B),

and was sentenced to seven years in prison for his offense. Mr. Torres appealed


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
his conviction to the New Mexico Court of Appeals (the NMCA), and after the

conviction was affirmed, petitioned for habeas corpus in federal district court.

Without reviewing the record of Mr. Torres’s state trial, the district court denied

the petition, but we granted a certificate of appealability with respect to one issue:

whether the NMCA was reasonable in concluding that the jury had sufficient

evidence to convict. After considering the government’s brief on this issue, we

conclude that we cannot answer this question without a review of the state

proceedings. We therefore vacate the district court’s denial of Mr. Torres’s

petition and remand for further examination.

                              FACTUAL BACKGROUND

       Mr. Torres’s habeas petition was dismissed without an evidentiary hearing,

examination of the state trial record, or findings of fact by the district court.

Moreover, his direct appeal from the retaliation conviction was placed on New

Mexico’s summary calendar. This meant that instead of reviewing the

audiocassette recordings of the trial, the NMCA based its decision on the facts of

trial as reported in Mr. Torres’s docketing statement and in subsequent filings by

counsel (including an exhibit containing the threat letter).   See State v. Ibarra ,

864 P.2d 302, 305 (N.M. App. 1993). Thus, at the current stage of the

proceedings, there is no record of the retaliation trial other than what appears in

Mr. Torres’s pleadings here and in state court. The government does not appear


                                             -2-
to challenge his statement of the facts. We must therefore accept Mr. Torres’s

account of the facts at trial for purposes of this appeal.   Miller v. Champion , 161

F.3d 1249, 1258 (10th Cir. 1998) (accepting as true the habeas petitioner’s

uncontroverted account of the facts);      see Williams v. Kaiser , 323 U.S. 471, 473-

74 (1945).

       Underlying Mr. Torres’s offense are two incidents that occurred in

September 1997, both relating to Mr. Torres and Mr. Medina. On the first of that

month, a house belonging to Mr. Medina burned down, and Mr. Medina told the

police that he suspected Mr. Torres had started the fire. Mr. Torres was never

indicted for this offense, nor was he ever investigated or treated as a suspect.

Two weeks later, another incident occurred, which Mr. Medina claimed was a

second attempted arson. In the course of the second incident, Mr. Torres broke a

window on Mr. Medina’s property. The State ultimately prosecuted Mr. Torres

for misdemeanor property destruction because of the broken window. That charge

came to trial in July of 1999, and Mr. Medina testified against Mr. Torres at that

trial. Two days after Mr. Medina’s testimony, Mr. Torres sent Mr. Medina an

anonymous but threatening letter, which was ultimately the basis of his conviction

for retaliating against a witness. The two-page letter called Mr. Medina a “rat”

and threatened to kill him; a significant portion of it was also dedicated to a




                                              -3-
demand that Mr. Medina stay away from a woman Mr. Torres referred to as “my

Ruby.”

      At the retaliation trial, the government called only two witnesses. The first

was a handwriting expert, who presumably testified that Mr. Torres could have

authored the letter. The second was Mr. Medina. He testified that he had

reported Mr. Torres to the police in connection with both of the September 1997

incidents, and that he had received the threatening letter shortly after Mr. Torres

was convicted in connection with the second incident.

                                     DISCUSSION

      Mr. Torres argues that there was insufficient evidence to support his

conviction for witness retaliation, and thus that he was denied due process of law.

Jackson v. Virginia , 443 U.S. 307, 318-19 (1979). To keep reviewing courts from

usurping the jury’s constitutional role as factfinder, the standard for determining

whether the jury had sufficient evidence is extremely deferential; a court can

disturb a jury determination only if, “viewing the evidence in the record in the

light most favorable to the prosecution,” no rational jury could have reached that

conclusion. Id. ; Hale v. Gibson , 227 F.3d 1298, 1334 (10th Cir. 2000).

Furthermore, because the Antiterrorism and Effective Death Penalty Act

(AEDPA) requires a habeas court to defer to state court determinations,    see 28

U.S.C. § 2254(d), Mr. Torres is not entitled to relief unless the NMCA’s


                                           -4-
determination that there    was sufficient evidence was unreasonable.         See Torres v.

Mullin , 317 F.3d 1145, 1151 (10th Cir. 2003)      1
                                                       ; Williams v. Taylor , 529 U.S. 362,

405 (2000). That amounts to deference squared.

       The statute under which Mr. Torres was convicted provides as follows:

                Retaliation against a witness consists of any person
                knowingly engaging in conduct that causes bodily injury
                to another person or damage to the tangible property of
                another person, or threatening to do so, with the intent to
                retaliate against any person for any information relating
                to the commission or possible commission of a felony
                offense or a violation of conditions of probation, parole
                or release pending judicial proceedings given by a
                person to a law enforcement officer.

N.M. Stat. Ann. § 30-24-3(B) (emphasis added). The jury instructions stated that

the jury could convict Mr. Torres only if it found beyond a reasonable doubt that

the letter was in retaliation for reporting the September 1 suspected arson (a

possible felony offense), not the September 15 property damage. We assume that

this jury instruction reflected the terms of the indictment,       2
                                                                       which was not made

       1
        As in Torres v. Mullin, Mr. Torres does not dispute the factual findings of
the NMCA (indeed, he could not, as the NMCA relied on his own docketing
statement for the facts). Thus, we follow Torres in determining that the NMCA’s
sufficiency-of-the-evidence determination was primarily a legal one. See 317
F.3d at 1151-52. Accordingly, the appropriate standard of deference forbids us
from granting relief unless the NMCA’s adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. 2254(d)(1).
       2
           The jury instructions set forth what the jury had to find in order to convict
                                                                           (continued...)

                                             -5-
part of the record on appeal, and thus that Mr. Torres could be convicted only if

there were sufficient evidence that the threatening letter he sent to Mr. Medina

was in retaliation for Mr. Medina’s report to the police regarding the September 1

arson incident.

      But none of the evidence presented at trial, as recounted in the NMCA

docketing statement and in Mr. Torres’s federal court pleadings, points toward

retaliation for the 1997 arson report (as opposed to the 1999 property damage

testimony). Indeed, according to Mr. Torres, there was no evidence that he even

knew about that report. The threatening letter itself seems at least partially

motivated by a quarrel over a woman named Ruby, and even to the extent it does

seem to be in retaliation for giving information, it makes no reference to the

September 1 arson report. It was sent two days after Mr. Medina’s testimony in

the misdemeanor trial involving the September 15 incident, and about two years

after Mr. Medina’s report to the police regarding the September 1 alleged arson.

Furthermore, Mr. Medina admitted that in the two years between his arson report

and his testimony in the misdemeanor trial, Mr. Torres took no retaliatory action

against him. Indeed, Mr. Medina testified that he believed the letter was sent in




      2
       (...continued)
Mr. Torres of the crime “as charged in Count I of the Indictment.” Instruction 3,
R. doc. 13, Ex. A.

                                          -6-
retaliation for his testimony at the misdemeanor trial. The timing of the letter

tends to confirm that theory.

       The New Mexico Court of Appeals decided that the jury could disagree

with Mr. Medina’s explanation of the letter’s motives, and decide on the basis of

circumstantial evidence that the letter was meant, at least in part, as retaliation for

the earlier arson report. However, its opinion provides no indication as to what

circumstantial evidence could support such a conclusion; it notes only that there

is nothing in the threatening letter that would preclude the jury from deciding that

it was in retaliation for the arson report as well as the misdemeanor testimony.

We do not dispute that the jury could disagree with Mr. Medina’s explanation, but

it could do so only on the basis of evidence. And given Mr. Medina’s intervening

misdemeanor trial testimony, general evidence that Mr. Torres was angry at Mr.

Medina for being a “rat” does not show that he was retaliating for the 1997 arson

report. The NMCA’s only stated reason for sustaining the jury’s implicit finding

on that point is that the content of the letter did not specifically rule it out. But

absence of evidence to the contrary cannot suffice as a basis for a defendant’s

conviction; it has been established at least since   Jackson that given the

presumption of innocence, a guilty verdict cannot be allowed to stand where there

is no evidence one way or another with respect to an element of the crime.       See

Jackson , 443 U.S. at 315, 320 (reaffirming and strengthening the Court’s previous


                                             -7-
holding in Thompson v. Louisville , 362 U.S. 199 (1960), that a conviction cannot

stand when there was no evidence that the defendant satisfied a particular element

of a crime). Thus, while there was ample evidence that Mr. Torres threatened

retaliation for Mr. Medina’s testimony against him in the 1999 misdemeanor

property damage trial, we have not been pointed to any evidence connecting the

threatening letter to Mr. Medina’s 1997 arson report, which was the only basis on

which the jury instructions permitted a conviction.

      The Government argues in its brief that there was sufficient evidence to

sustain the conviction because there was evidence that Mr. Torres found out about

the 1997 suspected arson report at the 1999 property damage trial. According to

the Government, “[t]he critical fact is that the letter was posted July 29, 1999, just

two days after Torres heard Medina testify under oath that he told police he

believed Medina was responsible for the September 1, 1997 arson.” Appellee’s

Br. 10. We have no quibble with the Government’s theory as a legal matter.

Nothing requires that Mr. Torres’s retaliation be based   solely on the 1997 arson

report, so long as it was one of the things Mr. Torres was angry about. If the jury

heard evidence that Mr. Torres discovered the arson report at the misdemeanor

trial or in preparation for it, there would be sufficient evidence to sustain the

jury’s verdict. But we see no evidence in this record for the Government’s

“critical fact.” The government’s only citation for the claim that Mr. Medina


                                            -8-
testified at the misdemeanor trial about the earlier arson report comes from Mr.

Torres’s own docketing statement, which states that “Medina testified that he

suspected that the Defendant had started the fire.” Docketing Statement at 2, R.

doc. 10, Ex. C. In context, however, this clearly refers to Mr. Medina’s testimony

at the retaliation trial , not at the 1999 misdemeanor trial. Obviously, Mr.

Medina’s testimony in 2002 cannot provide a basis for Mr. Torres’s retaliation in

1999.

        The only way to tell whether there was evidence before the jury suggesting

that Mr. Torres knew about the 1997 arson report is to do what no reviewing court

to date has done: review the actual record from the retaliation trial. The

Government contends that we should presume that there was such evidence,

because “Torres failed to present to the district court the record of his trial at

which Medina testified.” Appellee’s Br. 8. We are not convinced that the burden

of providing the record fell on Mr. Torres in this case. That question is governed

by 28 U.S.C. § 2254(f) (emphasis added):

              If the applicant challenges the sufficiency of the
              evidence adduced in such State court proceeding to
              support the State court’s determination of a factual issue
              made therein, the applicant, if able , shall produce that
              part of the record pertinent to a determination of the
              sufficiency of the evidence to support such
              determination. If the applicant, because of indigency or
              other reason is unable to produce such part of the
              record, then the State shall produce such part of the


                                           -9-
              record and the Federal court shall direct the State to do
              so by order directed to an appropriate State official.

Because the district court granted Mr. Torres’s motion to proceed         in forma

pauperis , it appears not unlikely that the burden was on the Government to

provide the record. Nevertheless, we leave this issue for the district court to

consider on remand.

       Because the record below does not provide sufficient evidence on which a

jury could have convicted Mr. Torres, we        VACATE the district court’s order

denying his petition for habeas relief, and      REMAND to the district court for

further consideration consistent with this opinion.

                                                     Entered for the Court,



                                                     Michael W. McConnell
                                                     Circuit Judge




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