In the per curiam decision of the US Supreme Court in the recent case of E. K. McDANIEL, WARDEN, et al., PETITIONERS v. TROY BROWN, dated January 11, 2010, acting on writ of certiorari to the US Court of Appeals for the 9th Circuit (see: http://laws.findlaw.com/us/000/08-559.html), the following doctrinal pronouncements in re: a prisoner-initiated habeas corpus petition were made, thus:
1. In Jackson v. Virginia, 443 U. S. 307 (1979), we held that a state prisoner is entitled to habeas corpus relief if a federal judge finds that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent's DNA profile. Nevertheless, relying upon a report prepared by a DNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and granted the writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorari to consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude that they clearly did.
2. The “prosecutor's fallacy” is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. See Nat. Research Council, Comm. on DNA Forensic Science, The Evaluation of Forensic DNA Evidence 133 (1996) ("Let P equal the probability of a match, given the evidence genotype. The fallacy is to say that P is also the probability that the DNA at the crime scene came from someone other than the defendant"). In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor's fallacy. It is further error to equate source probability with probability of guilt, unless there is no explanation other than guilt for a person to be the source of crime-scene DNA. This faulty reasoning may result in an erroneous statement that, based on a random match probability of 1 in 10,000, there is a .01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.
The Mueller Report does not dispute Romero's opinion that only 1 in 3,000,000 people would have the same DNA profile as the rapist. Mueller correctly points out, however, that some of Romero's testimony--as well as the prosecutor's argument--suggested that the evidence also established that there was only a .000033% chance that respondent was innocent. The State concedes as much. Brief for Petitioners 54. For example, the prosecutor argued at closing the jury could be "99.999967 percent sure" in this case. App. 730. And when the prosecutor asked Romero, in a classic example of erroneously equating source probability with random match probability, whether "it [would] be fair to say ... that the chances that the DNA found in the panties--the semen in the panties--and the blood sample, the likelihood that it is not Troy Brown would be .000033," id., at 460, Romero ultimately agreed that it was "not inaccurate" to state it that way, id., at 461-462.
Looking at Romero's testimony as a whole, though, she also indicated that she was merely accepting the mathematical equivalence between 1 in 3,000,000 and the percentage figure. At the end of the colloquy about percentages, she answered affirmatively the court's question whether the percentage was "the same math just expressed differently." Id., at 462. She pointed out that the probability a brother would match was greater than the random match probability, which also indicated to the jury that the random match probability is not the same as the likelihood that someone other than Troy was the source of the DNA.
The Mueller Report identifies a second error in Romero's testimony: her estimate of the probability that one or more of Troy's brothers' DNA would match. Romero testified there was a 1 in 6,500 (or .02%) probability that one brother would share the same DNA with another. Id., at 469, 472. When asked whether "that change[s] at all with two brothers," she answered no. Id., at 472. According to Mueller, Romero's analysis was misleading in two respects. First, she used an assumption regarding the parents under which siblings have the lowest chance of matching that is biologically possible, but even under this stingy assumption she reported the chance of two brothers matching (1 in 6,500) as much lower than it is (1 in 1,024 under her assumption). Second, using the assumptions Mueller finds more appropriate, the probability of a single sibling matching respondent is 1 in 263, the probability that among two brothers one or more would match is 1 in 132, and among four brothers it is 1 in 66. Id., at 1583.
In sum, the two inaccuracies upon which this case turns are testimony equating random match probability with source probability, and an underestimate of the likelihood that one of Troy's brothers would also match the DNA left at the scene.
III
Although we granted certiorari to review respondent's Jackson claim, the parties now agree that the Court of Appeals' resolution of his claim under Jackson was in error. See Brief for Respondent 2-3; Reply Brief for Petitioners 1. Indeed, respondent argues the Court of Appeals did not decide his case under Jackson at all, but instead resolved the question whether admission of Romero's inaccurate testimony rendered his trial fundamentally unfair and then applied Jackson to determine whether that error was harmless.
Although both petitioners and respondent are now aligned on the same side of the questions presented for our review, the case is not moot because "the parties continue to seek different relief" from this Court. Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. ___, ___ (2009) (slip op., at 6). Respondent primarily argues that we affirm on his proposed alternative ground or remand to the Ninth Circuit for analysis of his due process claim under the standard for harmless error of Brecht v. Abrahamson, 507 U. S. 619 (1993). The State, on the other hand, asks us to reverse. Respondent and one amicus have also suggested that we dismiss the case as improvidently granted, Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 27-28, but we think prudential concerns favor our review of the Court of Appeals' application of Jackson. Cf. Pacific Bell, supra, at ___ (slip op., at 7).
Respondent no longer argues it was proper for the District Court to admit the Mueller Report for the purpose of evaluating his Jackson claim, Brief for Respondent 35, and concedes the "purpose of a Jackson analysis is to determine whether the jury acted in a rational manner in returning a guilty verdict based on the evidence before it, not whether improper evidence violated due process," id., at 2. There has been no suggestion that the evidence adduced at trial was insufficient to convict unless some of it was excluded. Respondent's concession thus disposes of his Jackson claim. The concession is also clearly correct. An "appellate court's reversal for insufficiency of the evidence is in effect a determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal." Lockhart v. Nelson, 488 U. S. 33, 39 (1988). Because reversal for insufficiency of the evidence is equivalent to a judgment of acquittal, such a reversal bars a retrial. See Burks v. United States, 437 U. S. 1, 18 (1978). To "make the analogy complete" between a reversal for insufficiency of the evidence and the trial court's granting a judgment of acquittal, Lockhart, 488 U. S., at 42, "a reviewing court must consider all of the evidence admitted by the trial court," regardless whether that evidence was admitted erroneously, id., at 41.
Respondent therefore correctly concedes that a reviewing court must consider all of the evidence admitted at trial when considering a Jackson claim. Even if we set that concession aside, however, and assume that the Court of Appeals could have considered the Mueller Report in the context of a Jackson claim, the court made an egregious error in concluding the Nevada Supreme Court's rejection of respondent's insufficiency-of-the-evidence claim "involved an unreasonable application of ... clearly established Federal law," 28 U. S. C. §2254(d)(1).4
Even if the Court of Appeals could have considered it, the Mueller Report provided no warrant for entirely excluding the DNA evidence or Romero's testimony from that court's consideration. The Report did not contest that the DNA evidence matched Troy. That DNA evidence remains powerful inculpatory evidence even though the State concedes Romero overstated its probative value by failing to dispel the prosecutor's fallacy. And Mueller's claim that Romero used faulty assumptions and underestimated the probability of a DNA match between brothers indicates that two experts do not agree with one another, not that Romero's estimates were unreliable.5
Mueller's opinion that "the chance that among four brothers one or more would match is 1 in 66," App. 1583, is substantially different 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 jury verdict is not undermined. First, the estimate that is more pertinent to this case is 1 in 132--the probability of a match among two brothers--because two of Troy's four brothers lived in Utah. Second, although Jane Doe mentioned Trent as her assailant, and Travis lived in a nearby trailer, the evidence indicates that both (unlike Troy) were sober and went to bed early on the night of the crime. Even under Mueller's odds, a rational jury could consider the DNA evidence to be powerful evidence of guilt.
Furthermore, the Court of Appeals' discussion of the non-DNA evidence departed from the deferential review that Jackson and §2254(d)(1) demand. A federal habeas court can only set aside a state-court decision as "an unreasonable application of ... clearly established Federal law," §2254(d)(1), if the state court's application of that law is "objectively unreasonable," Williams v. Taylor, 529 U. S. 362, 409 (2000). And Jackson requires a reviewing court to review the evidence "in the light most favorable to the prosecution." 443 U. S., at 319. Expressed more fully, this means a reviewing court "faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id., at 326; see also Schlup v. Delo, 513 U. S. 298, 330 (1995) ("The Jackson standard ... looks to whether there is sufficient evidence which, if credited, could support the conviction"). The Court of Appeals acknowledged that it must review the evidence in the light most favorable to the prosecution, but the court's recitation of inconsistencies in the testimony shows it failed to do that.
For example, the court highlights conflicting testimony regarding when Troy left the Peacock. 525 F. 3d, at 797. It is true that if a juror were to accept the testimony of one bartender that Troy left the bar at 1:30 a.m., then Troy would have left the bar after the attack occurred. Yet the jury could have credited a different bartender's testimony that Troy left the Peacock at around 12:15 a.m. Resolving the conflict in favor of the prosecution, the jury must have found that Troy left the bar in time to be the assailant. It is undisputed that Troy washed his clothes immediately upon returning home. The court notes this is "plausibly consistent with him being the assailant" but also that he provided an alternative reason for washing his clothes. Ibid. Viewed in the light most favorable to the prosecution, the evidence supports an inference that Troy washed the clothes immediately to clean blood from them.
To be sure, the court's Jackson analysis relied substantially upon a concession made by the State in state postconviction proceedings that "absent the DNA findings, there was insufficient evidence to convict [Troy] of the crime." App. 1180. But that concession posited a situation in which there was no DNA evidence at all,6 not a situation in which some pieces of testimony regarding the DNA evidence were called into question. In sum, the Court of Appeals' analysis failed to preserve "the factfinder's role as weigher of the evidence" by reviewing "all of the evidence ... in the light most favorable to the prosecution," Jackson, supra, at 319, and it further erred in finding that the Nevada Supreme Court's resolution of the Jackson claim was objectively unreasonable.
IV
Resolution of the Jackson claim does not end our consideration of this case because respondent asks us to affirm on an alternative ground. He contends the two errors "in describing the statistical meaning" of the DNA evidence rendered his trial fundamentally unfair and denied him due process of law. Brief for Respondent 4. Because the Ninth Circuit held that "the admission of Romero's unreliable and misleading testimony violated [respondent's] due process rights," 525 F. 3d, at 797, and in respondent's view merely applied Jackson (erroneously) to determine whether that error was harmless, he asks us to affirm the judgment below on the basis of what he calls his "DNA due process" claim, Brief for Respondent 35.
As respondent acknowledges, in order to prevail on this claim, he would have to show that the state court's adjudication of the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U. S. C. §2254(d)(1). The clearly established law he points us to is Manson v. Brathwaite, 432 U. S. 98, 114 (1977), in which we held that when the police have used a suggestive eyewitness identification procedure, "reliability is the linchpin in determining" whether an eyewitness identification may be admissible, with reliability determined according to factors set out in Neil v. Biggers, 409 U. S. 188 (1972). Respondent argues that the admission of the inaccurate DNA testimony violated Brathwaite because the testimony was "identification testimony," 432 U. S., at 114, was "unnecessarily suggestive," id., at 113, and was unreliable.
Respondent has forfeited this claim, which he makes for the very first time in his brief on the merits in this Court. Respondent did not present his new "DNA due process" claim in his federal habeas petition, but instead consistently argued that Romero's testimony should be excluded from the Jackson analysis simply because it was "unreliable" and that the due process violation occurred because the remaining evidence was insufficient to convict. See App. to Pet. for Cert. 157a ("[Respondent] asserts ... that the DNA evidence was unreliable and should not have been admitted at his trial. If so, then, ... the state presented insufficient evidence at trial to prove [respondent] guilty"). In the Ninth Circuit, too, respondent presented only his Jackson claim,7 and it is, at the least, unclear whether respondent presented his newly minted due process claim in the state courts.8 Recognizing that his Jackson claim cannot prevail, respondent tries to rewrite his federal habeas petition. His attempt comes too late, however, and he cannot now start over.
* * *
We have stated before that "DNA testing can provide powerful new evidence unlike anything known before." District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U. S. ___, ___ (2009) (slip op., at 8). Given the persuasiveness of such evidence in the eyes of the jury, it is important that it be presented in a fair and reliable manner. The State acknowledges that Romero committed the prosecutor's fallacy, Brief for Petitioners 54, and the Mueller Report suggests that Romero's testimony may have been inaccurate regarding the likelihood of a match with one of respondent's brothers. Regardless, ample DNA and non-DNA evidence in the record adduced at trial supported the jury's guilty verdict under Jackson, and we reject respondent's last minute attempt to recast his claim under Brathwaite. The Court of Appeals did not consider, however, the ineffective-assistance claims on which the District Court also granted respondent habeas relief. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
