*1 v. BROWN McDANIEL, WARDEN, et al. January 11, 2010 08-559. Decided No.
Per Curiam. 307 (1979), 443 we held that Jackson Virginia,
In v. U. S. relief if a federal a state entitled to habeas corpus prisoner evidence adduced finds that the record judge “upon trial no of fact have found guilt rational trier could proof Id., 324. A a Nevada reasonable doubt.” beyond the evidence in- convicted presented respondent rape; profile. cluded DNA evidence matching a DNA ex- Nevertheless, prepared by upon report relying the Federal District Court trial, after the years over pert writ. A the Jackson standard and di- granted applied Farwell, Brown affirmed. vided Court 2008). consider (CA9 certiorari granted F. 3d 787 We the trial Jackson. Because misapplied whether those courts and other convincing both the DNA evidence record includes did. they conclude that clearly we guilt, I 9-year-old January Around a.m. 29, 1994, Jane Doe brutally raped Respond- the bedroom of her trailer. During ent Brown convicted of crime. steadfastly his trial, since has in- maintained his admittedly was, nocence.1 He however, when intoxicated following occurred, the crime and after he awoke on the “ morning he told friend ‘he wished that he could remember ” go what did on or what on.’ went 309. Troy and his brother Travis resided near Jane Doe in the park. Raquel trailer same Their brother Trent and his wife park in the lived as well, a trailer across the street from acquainted Doe’s. Jane Both and Trent were family; Troy Jane Doe’s had visited Jane Doe’strailer several evening times. Jane did not know Travis. of the at- *3 Raquel tack, Jane’s mother, took Pam, Jane to and Trent’s babysit trailer to while the three adults went out for about Raquel p.m. an hour. and Trent returned at about 7:30 and p.m. stayed took Jane home at about 9:30 Pam out and up drinking playing pool Troy nearby ended and with at a Lounge. Troy bar called Peacock knew that Jane and 4-year-old her sister were home alone because he answered phone at the bar when Jane called for her mother earlier evening. Troy by consumed at least 10 shots of vodka followed beer chasers, and so was drunk that he vomited on himself while walking leaving he was home after at Peacock about report rape 12:15a.m. Jane called ap- her to mother proximately Although a.m. it would have taken a sober man Troy less than 15 minutes to walk home, did not arrive at his wearing trailer until about 1:30 a.m. He was dark jeans, cowboy jacket, a a hat, black satin and boots. Two 1He police denied involvement a when officer (wrongly) claimed that the police had fingerprints bedroom, found his in Jane’s and he even denied involvement the sentencing judge when acceptance told him that of re sponsibility garner leniency. him would jeans, cowboy a hat, man dressed in dark saw a witnesses jacket stumbling the road between the a satin and black shortly trailers after a.m. two rape dark, and occurred was Jane bedroom where the
The identify conclusively her assailant. When unable to was Troy she mentioned both of, whom reminded her asked he days rape, after the she Trent. and his brother Several (Troy) as her assailant a man she saw on television identified flowers man had sent attacked then stated who but Raquel had her flowers, It Trent who sent her. identify Troy Troy. out her assailant unable as She was identify photo lineup, and she could not her assailant of a night rape, said her attacker however, of the she trial. jeans, jacket zipper, wearing a boots, dark a black vividly remembered that the man and watch. She “cologne, puke or or or real some beer real, “stunk bad” something.” Id., at 172-173. inconsistent identification evidence besides Jane’s
Some Troy. thought inculpate that she did not testified she Jane not have her but did bite assailant, had bitten police ap- officer marks on his hands when examined proximately four after attack. Jane stated that hours not) (Troy’s jacket zipper did and that had a her assailant’s not). Additionally, (Troy he a watch claimed did he wore conflicting left the Pea- as to when there was reporting rape. call Pam cock and when received Jane’s stumbling between the two saw a man The witnesses who *4 bright green logo reported on the back of the trailers yellow orange logo. jacket, Troy’s jacket Fi- and had a but light nally, thought night on she had left a when because Jane suspected police the assailant had went to the bed, she fingerprint only light. taken from turned off the The usable Troy’s, police light did not find the match and the did not Troy’s fingerprints in the trailer. Troy. pointed The physical to however, evidence,
Other and from the police underwear semen from Jane’s recovered 124 expert,
rape for- kit. The State’s Renee tested the Romero, Troy’s the and that mer and determined that DNA matched general probability person population another from the the (the probabil- share the same “random match would Troy’s ity”) 3 his 1 in million. counsel call did not although expert at he consulted an ex- trial, own DNA with pert problems in advance who no with found Romero’s test family procedures. sentencing, Troy’s At some time before testing testing That had additional DNA done. showed rape Troy’s DNA, semen taken from the kit matched with a probability 10,000. random match of 1 jury Troy guilty The assault found of sexual and sentenced possibility parole years.2 him life the to of after 10 On appeal, Supreme Troy’s the direct Nevada Court considered supported by claim that his conviction was sufficient evi- jury, analyzing acting reasonably, dence, the “whether could [Troy’s] guilt beyond been have convinced of a reasonable Nevada, 275, doubt.” Brown v. 113 Nev. P. 2d 235, (1997) curiam). (per rejected The court the claim, sum- marizing guilt the of as follows:
“Testimony Troy indicated that left bar around 12:15 Troy relatively a.m., lived to bar, close and that Troy very enough lived to close Jane Doe. had 2Under trial, Nevada law the time of the jury, rather than the judge, imposed for sexual sentence assault if found the crime it bodily assault resulted in substantial harm. Rev. Ann. Nev. Stat. §200.366(3) (Michie 1992). resulting bodily For an assault in substantial harm, jury option sentencing Troy had the to life pos without sibility parole or to with eligibility parole life years. for after 10 200.366(2)(a). § elected the judge more lenient sentence. The possibility parole sentenced with the years life after 10 aon assault, consecutively. second count of sexual to run The Nevada Su preme Troy’s Court reversed conviction for one count child abuse grounds, jeopardy double resentencing ordered on the second sexual Nevada, assault count. Brown (1997) 113 Nev. 2dP. (per curiam). resentencing, judge imposed On the same sentence as before. *5 house and to from the bar to Doe’s
time to Jane get call to Doe before she made telephone assault Jane a.m. While Jane Doe her mother at 1:00 approximately her of his assailant, her description could not identify she wearing; what also was similar to Troy clothing like beer or vomit and her smelled said that assailant been beer drinking indicated that had Troy testimony Further- times that night. and had vomited several home at more, that Troy approx- indicated got him time to assault a.m., which enough 1:30 imately gave that testified they Jane Doe. Additionally, [witnesses] in a black saw jacket someone resembling Doe’s house in the road near Jane black hat stumbling when washed his and shirt 1:05 a.m. also pants evidence home, he to remove the blood got arguably from clothes. evidence indicated Finally, his DNA Doe’s underwear that collected from Jane semen 1 in other 3,000,000 matched and that Troy’s people (the that DNA test indicated had DNA second matching DNA).” Ibid., 1 in had 10,000 people matching P. at 241-242. 2d, the trial court erred
Respondent argued appeal a to determine whether to conduct failing hearing pretrial found The court evidence was reliable. respond- the DNA trial court and not raised this issue concluded ent had failure to conduct there error in the trial court’s was no plain Id., at 241. 2d, 934 P. hearing. relief, In state postconviction sought alia, inter his trial counsel was constitution- claiming, admission of the object for to the failing ineffective ally there were number He DNA evidence. argued if evidence, and that with the foundational problems ex- evidence would been trial counsel had have objected, He diminished. noted at least its cluded or importance the DNA failed to challenge counsel “totally because trial issues “failed to valid counsel case,” preserve in the appeal.” postconviction for 1101. The state court de- *6 Supreme id., at relief, 1489-1499, nied and the Nevada Court judgt. reported 3d affirmed, order at 119 Nev. 130 P. (2003). Respondent petition, thereafter filed this federal habeas claiming there was insufficient evidence to convict him on the charges Supreme and sexual assault Nevada Court’s rejection contrary to, of his claim was both and an unreason- bring application typical He of, able Jackson. did. not a argue than claim, however. Rather that the total- ity against of the evidence admitted him at trial consti- was tutionally argued he insufficient, some of the evidence analysis. particu- be excluded from the should In argued testimony lar, he Romero’s related to the DNA primary evidence was inaccurate and unreliable in two spects: re- proba- Romero mischaracterized the random match bility probability among and misstated the of a DNA match testimony, contended, his brothers. Absent that he there was insufficient evidence to convict him. support accuracy regarding
In of his claim of Romero’s testimony, respondent report prepared by submitted Lau professor ecology evolutionary Mueller, a rence and biol (Mueller ogy Report). supplemented The District Court Report, though with the Mueller record even it was not any presented state “the thesis of court, because the re port argued during post-conviction.” Brown v. Far well, 3:03-cv-00712-PMP-VPC, No. 6181129, *5, WL (D 2006). n. 2 Dec. Nev.,
Relying upon Report, the Mueller the District Court set testimony” aside the “unreliable DNA and held that without “a DNA evidence reasonable doubt would exist in the any trier Id., mind of rational of fact.” at *7. The court granted respondent habeas relief his Jackson claim.3 granted The District Court habeas relief on claim he respect was denied effective assistance of counsel with to his attor ney’s handling adequately investigate the DNA evidence and failure to 3d 787. The court The Ninth Circuit affirmed. 525 F. unreasonably Court had applied held the Nevada Supreme 2254(d)(1). § C. 3d, 798; 525 F. see 28 U. S. Jackson. first reasoned “the admission Romero’s Court violated due Troy’s unreliable misleading was correct to exclude so the District Court rights,” process It 3d, sufficiency 525 F. at 797. then “weighed it. District Court’s “cat- evidence,” the remaining including that would raise the numerous inconsistencies alogue] [of] in the mind of ra- doubt as to Troy’s guilt reasonable Ibid. conflicts in the In of the “stark” tional juror.” light concession that there was insuffi- evidence and the State’s court held it evidence, cient absent the DNA for the unreasonable Nevada objectively Supreme *7 to claim. reject insuffieieney-of-the-evidence Id., at 798. (2009), to consider certiorari,
We U. S. granted standard of review for a the two questions: proper and whether such a claim habeas, claim on federal may rely the record that to the relia- outside trial goes upon of trial evidence. bility
II into a claim claim has now about crystallized Respondent’s in the re- inaccuracies specific testimony the two import indicated the Mueller Re- evidence, to the as lated DNA The Mueller does not Romero’s challenge port. Report of the tests as an or the validity qualifications expert contends that Romero she instead Mueller performed. and that she committed the fallacy” so-called “prosecutor’s match of a DNA between re- underestimated probability and of his brothers. one spondent Farwell, suspect. Brown v. alternative stepfather
the victim’s as an (D Nev., 6181129, *9-*10 Dec. 3:03-cv-00712-PMP-VPC, 2006 WL No. appeal, on 2006). those claims Court of did not consider The are now us. they before prosecutor’s fallacy assumption
The is the that the random probability probability match is the de- same as the that the sample. fendant was not the DNA source of the See Nat. Comm, Council, Research Forensic The Science, DNA (1996) (“Let Evaluation of Forensic DNA Evidence P equal probability given geno- of a match, the evidence type. fallacy say probability The is to that P also the is at the the DNA crime came from than scene someone other defendant”). juror proba- words, In if a other told bility general population member of would share the (random probability), is 1 in match 10,000 same DNA and he only takes that to mean there is a 1 in chance that 10,000 other someone than defendant is the source of the DNA (source probability), found crime at the scene then he has prosecutor’s fallacy. succumbed to the It is further error equate probability probability guilt, source unless explanation guilt person there is no other than for a to be faulty may reasoning the source of crime-scene DNA. This result in an erroneous statement that, based on a random probability 1 in match there is a 10,000, 0.01%chance the defendant is innocent or a 99.99% chance the defendant is guilty. Report dispute opinion does not Mueller Romero’s people 1 in 3 million have the would same correctly
profile rapist. points out, as however, prosecutor’s well as the some of Romero’s *8 —as argument suggested that the evidence also established that — there chance that was 0.000033% was inno- cent. concedes as much. Brief for Petitioners The State example, prosecutor argued closing jury 54. For the at the percent sure” in this could be “99.999967 case. 730. prosecutor example in a Romero, And when the asked classic erroneously probability equating source with random say [would] probability, match “it be fair whether ... panties found in the chances that the DNA the semen —the sample, panties the likelihood that it the blood in the —and id., 460, at Romero .000033,” would be is not Brown ultimately agreed inaccurate” to it that that it was “not state way, id., at 461-462. though,
Looking as a whole, at she Romero’s merely accepting the mathemati- also indicated that she equivalence percentage 1 in 3 million and the cal between percentages, colloquy figure. she At the the about end of per- affirmatively question the court’s whether the answered just expressed differently.” centage same math was “the pointed probability a brother at 462. out that the Id., She greater probability, random match would match was than the prob- to the that the random match which indicated ability as the other is not the same likelihood someone than was the source the DNA. Report identifies a error in second Romero’s Mueller
testimony: probability her of the that one or estimate more Troy’s brothers’ match. DNA would Romero testified (or 0.02%)probability there was a 1 in that one brother 6,500 would at Id., share same DNA with another. 472. change[s] When asked whether “that at all two with broth- According ers,” Id., she answered no. 472. to Mueller, analysis misleading respects. in Romero’s two First, assumption regarding parents she an used under which matching siblings biologi- have the lowest chance of that is cally stingy assumption possible, but even this under she re- (1 ported 6,500) matching of two chance brothers as (1 assumption). much lower than is her 1,024 it under using assumptions appro- Second, finds more priate, probability single sibling matching respond- of a probability among is 1 in ent 263, two brothers one among or more would is 1 in match four brothers it 1 in 66. Id., 1583. upon In inaccuracies sum, two which this case turns testimony equating probability are random match probability, source and an underestimate the likelihood *9 Troy’s left match the DNA that one of brothers would also at the scene.
III Although granted review we certiorari to Ap parties agree of claim, the now that the Court Jackson peals’ resolution of his claim under Jackson was in error. Reply Respondent 1. 2-3; for Brief for Petitioners See Brief respondent argues of the Court not de Indeed, did but all, cide case under Jackson instead resolved his question testi whether admission Romero’s inaccurate fundamentally ap mony trial rendered his unfair and then plied to whether that error was harmless. determine
Although petitioners aligned both and are now presented questions on for our review, the same side of parties “the the ease is not moot because continue to seek Telephone from this different relief” Court. Bell Co. Pacific (2009). Communications, linkLine Inc., v. 555 U. S. Respondent primarily argues proposed that we affirm on his ground analy- alternative or remand to the Ninth Circuit for process of his due sis claim under the standard for harmless (1993). Abrahamson, error of Brecht 507 U. S. Respondent State, the other asks us to hand, reverse. suggested one amicus have also that we dismiss the case improvidently granted, as Brief for National Association Lawyers Defense as Amicus 27-28, Criminal Curiae but prudential we think concerns favor our review of the Court Appeals’ application supra, Bell, Jackson. Cf. Pacific at 447.
Respondent longer argues proper no it for the District Report purpose admit the for the of evalu- Respondent ating Brief for claim, his Jackson and con- “purpose analysis of a cedes the is to determine returning acted in a whether the rational manner guilty on the based evidence before it, verdict whether process,” improper id., evidence violated due at 2. There suggestion no that the evidence adduced at trial has been *10 of it excluded. to convict was was insufficient unless some of his Jackson claim. concession thus Respondent’s disposes An is also correct. court’s clearly “appellate The concession is in effect a of the evidence deter- insufficiency for reversal the defendant that ease government’s against mination entered a the trial court should have so lacking Nelson, 33, 39 of Lockhart v. 488 U. S. acquittal.” judgment (1988). for of the evidence is insufficiency Because reversal such a reversal to a of bars a acquittal, equivalent judgment (1978). States, 181, Burks 437 U. S. retrial. See v. United in- “make the between a reversal for To analogy complete” and of the evidence the trial court’s sufficiency granting Lockhart, 488 S., a U. “a of judgment acquittal, court must all of the evidence admitted consider reviewing court,” the trial of whether that evidence was regardless id., at 41. admitted erroneously, therefore that a concedes correctly
Respondent reviewing court all of the must consider evidence admitted trial when claim. Even if we set that con considering of aside, however, cession and assume the Court Ap could have considered the Mueller in the con peals Report text of a Jackson the court made an claim, error egregious of Nevada Court’s re concluding Supreme rejection claim “involved an spondent’s insuffieieney-of-the-evidence unreasonable of . . . established Federal application clearly § 2254(d)(1).4 28 U. S. C. law,” Appeals clearly concluding The Court the Nevada Su erred
preme Jackson. “contrary Appeals Court’s decision to” The Court to” Supreme “contrary held the Nevada Court’s decision was be cause the turns on a Nevada court stated standard “reasonable” jury, jury one, not a “rational” and that could assesses whether have guilt, been convinced of a rather than whether it could defendant’s have Farwell, Brown been convinced of each 525 F. 3d element of the crime. (CA9 2008). Supreme It is of little moment that the 794-795 Nevada analyzed jury guilt whether a “reasonable” could be convinced of beyond doubt, asking one a reasonable rather than whether a “rational” a reasonable guilt; hardly element of could could be convinced each Even if the Court could have considered it, no warrant for Report provided entirely excluding evidence DNA or Romero’s from that court’s consideration. The did not contest the DNA Report evidence matched That evidence Troy. DNA remains pow- erful even inculpatory though concedes State Romero overstated its value probative by failing dispel And Mueller’s prosecutor’s claim that fallacy. Romero used faulty assumptions underestimated the probability of a match between brothers indicates that two experts do not with one agree another, that Romero’s estimates were unreliable.5
Mueller’s that “the chance that opinion four broth- among ers one or more would match is 1 in 66,” 1583, is sub- different stantially from Romero’s estimate of a 1 in 6,500 chance that one brother would match. But even if Romero’s estimate is wrong, our confidence in the verdict jury is not undermined. First, the estimate that is more pertinent this case 1is in 132—the of a match probability two among brothers —because two of four Troy’s brothers lived Utah. Second, Doe Jane although mentioned Trent as her assailant, and Travis lived in a the nearby trailer, evidence indicates (unlike that both Troy) were sober and went to bed on early the of the crime. Even night under Mueller’s a ra- odds, tional could consider DNA evidence to be powerful evidence of guilt. the Court of
Furthermore, discussion of Appeals’ the non- from the deferential review that departed 2254(d)(1) § Jackson and demand. A federal habeas court guilt be it beyond convinced of unless found each element satisfied a rea- sonable doubt. 5The State has called our attention to cases in which courts have criti opinions cized past. rendered Professor Mueller in the See Brief for pass 53-54. need not Petitioners We credibility the relative of the experts assuming two correct, because even Mueller’s estimate is respondent’s claim fails. as “an unreason set aside state-court decision
can law,” . . Federal clearly . established able application if court’s of that law is “ob 2254(d)(1), the state application § Taylor, Williams v. unreasonable,” U. S. jectively to re (2000). court reviewing And requires to the “in the most favorable light prose view the evidence this more S., fully, cution.” at 319. Expressed U. a record of historical means a court “faced with reviewing inferences must conflicting presume— facts supports in the if it does not record —that affirmatively appear even of the trier of fact resolved such conflicts favor Id., 326; and must defer to that resolution.” prosecution, Schlup Delo, Jack (1995) (“The 298, 330 see 513 U. S. son looks to whether there is sufficient evidence standard... conviction”). if which, credited, could support that it must review the evi of Appeals acknowledged dence in the most favorable to the but the light prosecution, in the shows it court’s recitation of inconsistencies testimony failed to do that. re-
For the court example, conflicting testimony highlights It 3d, when left the Peacock. 525 F. 797. garding true were to if a one juror accept a.m., 1:30 then Troy left bar at bartender occurred. Yet would have left the bar after attack *12 have credited different bartender’s could jury a.m. Resolving left the Peacock around 12:15 Troy the have the conflict in favor of the must prosecution, It bar in to be the assailant. found that left the time Troy clothes immediately upon is washed his undisputed consist- The court this “plausibly
135
an
or involved
unreason-
“contrary to,
the claim was
tion of
Federal
law.” 28
of,
established
clearly
able application
2254(d)(1).
law he
§
established
clearly
points
C.
U. S.
Brathwaite,
114
in
to is Manson
98,
(1977),
v.
432
S.
U.
us
have used
suggestive
which we held
when the police
“reliability
the linch-
identification
eyewitness
procedure,
an
identification
in
whether
determining”
eyewitness
pin
to
admissible,
be
determined
may
reliability
according
(1972).
factors set out Neil v. Biggers,
in
409 U. S.
Re-
of the inaccurate DNA
the admission
spondent argues
violated Brathwaite
because the
was
testimony
testimony
S.,
at
“unnecessar-
“identification
U.
testimony,”
id., at
and was unreliable.
suggestive,”
ily
has forfeited this
which he makes for
Respondent
claim,
on
in
first time
his brief
the merits
this
very
Court.
his
did not
new “DNA due
Respondent
present
process”
but instead
claim his federal habeas petition,
consistently
that Romero's
should be excluded
argued
from
it
Jackson analysis simply
because was “unreliable” and
the due
violation occurred because the
ev-
process
remaining
idence
convict.
to Pet. for
was insufficient
to
See
Cert.
...
that the DNA evidence was
157a
asserts
(“[Respondent]
If
unreliable
should not have been admitted
his trial.
evidence at trial
so,
insufficient
then,...
presented
state
too,
In the
re-
Circuit,
to
Ninth
prove
guilty”).
[respondent]
his claim,7 and it
is,
spondent presented
least,
newly
unclear whether
his
respondent presented
testimony must
The Court of
did reason that Romero’s
be
3d,
the analysis
process grounds.
from
due
525 F.
excluded
on
inextricably
with the claim
at 797. But that decision was
intertwined
Jackson.
under
habeas
It is
petition
did make in his federal
pass
did not
never asked to consider —and
dear
Ninth Circuit was
Supreme
Nevada
entered
deci
upon
question whether
—the
contrary
application
appeal
or an unreasonable
sion
direct
Brathwaite,
(1977),
clearly estab
or
other
Manson
[*] [*] [*] testing provide We have stated before “DNA can powerful anything unlike new evidence known before.” Attorney’s District Third Judicial Dist. v. Os Office for (2009). persuasiveness borne, 52, 62 557 U. S. Given the eyes important jury, it of such evidence of the is presented in it a fair and reliable The State ac be manner. knowledges prosecutor’s fallacy, that Romero committed the Report suggests 54, Brief for and the Petitioners testimony may regard that Romero’s have been inaccurate ing the likelihood of a match with one of broth Regardless, ample ers. DNA and non-DNA evidence in the supported jury’s guilty record adduced at trial verdict reject respondent’s Jackson, under and we last minute at tempt to recast his claim under Brathwaite. The Court of consider, did not however, the ineffective-assistance granted respondent claims on which the District Accordingly, judgment habeas relief. of the Court of Appeals is reversed, the case remanded for further proceedings opinion. consistent with this
It is so ordered. 8The State contends the claim procedurally is either exhausted or objected defaulted. The State has beginning respondent from the claim process regarding reliability did not raise due of the DNA App. evidence state See to Respond court. Pet. for Cert. 182a-183a. consistently objection by ent State’s arguing answered exhaustion he presented his Jackson claim in Supreme the Nevada Court. See respondent 1521-1526. The Circuit Ninth held exhausted his insuffi ciency 3d, claim. 525 F. at 793. The court had no occasion to consider process whether exhausted due claim his other than Jack claim. son joins, with whom Scalia Thomas, Justice
Justice concurring. curiam because it correctly holds that per
I
join
Jackson’s
from
mandate
erred in
Ninth
departing
Circuit
its sufficiency-of-the-
habeas
confine
federal
court
at trial” and,
to “the
adduced
spe-
evidence
analysis
evidence
”
“
the trial court.’
to ‘all of the
admitted
cifically,
Nelson,
Ante,
Lockhart
488 U. S.
(quoting
(1979).
explain that report would have undermined the State’s DNA re sults “even if” the Court of could have in resolving considered it Ante, Jackson claim. 131-132. That discussion cannot properly be either that suggest read are there circumstances in which post-trial excluding evidence would “warrant” DNA trial evidence from ante, analysis, or applying Jackson that courts may con post-trial sider evidence for other purpose. points squarely Both are precedents foreclosed on which the Court in reversing relies ante, judgment. Ninth Circuit’s See (citing Virginia, at 121 307, 324 ante, (1979)); Nelson, 443 U. S. at 131 (citing Lockhart v. 488 U. S. (1988)),respectively. home. notes returning also that he pro- ent him the assailant” but being Ibid. his clothes. an reason for washing vided alternative to the the the favorable prosecution, in most light Viewed washed the clothes an inference evidence supports them. blood from clean immediately analysis sure, To be the court’s Jackson relied substan- tially upon postcon- made in state concession State proceedings findings, viction that “absent the DNA there [Troy] was insufficient evidence to convict of the crime.” App. posited 1180. But that concession a situation in which there was no DNA all,6 evidence at not a in situation which pieces testimony regarding some the DNA evidence were question. analysis Appeals’ called into In sum, the Court of preserve weigher failed to “the factfinder’s role as of the by reviewing light evidence” “all evidence ... prosecution,” supra, most Jackson, favorable to the at 319, finding Supreme and it further erred that the Nevada objectively Court’s resolution of claim was unreasonable. IV Resolution of the Jackson claim does not end our consider ation of this case because asks us to affirm on an ground. alternative He contends the two “in errors describ ing meaning” the statistical of the DNA evidence rendered fundamentally process his trial unfair and denied him due Respondent law. Brief for 4. Because Ninth Circuit held that “the admission of Romero’s unreliable and mislead ing testimony [respondent’s] process rights,” violated due merely applied 525 F. and in 3d, view (erroneously) to determine whether that error judgment harmless, he to affirm asks us below on the process” his claim, basis of what he calls due “DNA Brief Respondent for 35. respondent acknowledges, prevail As in order to on this adjudica- claim, he would have to show that the state court’s 6The in the context of proceedings concession made in which re spondent argued competent objected counsel would have to the admissibility of the DNA evidence on a grounds including number of — qualifications, chain-of-custody problems, and failure to Romero’s follow proper testing protocol might successfully have excluded the —and altogether. See 1099-1100.