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Long v. Johnson

United States Court of Appeals, Ninth Circuit

December 2, 2013

Kimberly Louise LONG, Petitioner-Appellant,
v.
Deborah K. JOHNSON, Warden, Respondent-Appellee.

Argued and Submitted July 8, 2013.

Alexander Simpson (argued) and Alissa Bjerkhoel, California Innocence Project, San Diego, CA, for Petitioner-Appellant.

Arlene A. Sevidal, Deputy Attorney General (argued), Kamala D. Harris, Attorney General of California,

Page 892

Julie L. Garland, Senior Assistant Attorney General, and Kevin Vienna, Supervising Deputy Attorney General, for Respondent-Appellee.

Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding.

Before: SUSAN P. GRABER, JOHNNIE B. RAWLINSON, and PAUL J. WATFORD, Circuit Judges.

ORDER

GRABER, Circuit Judge:

The Memorandum disposition filed July 24, 2013, is redesignated as an authored opinion by Judge Graber, with modifications. The opinion is to be filed concurrently with this order.

Appellant's petition for panel rehearing and petition for rehearing en banc filed August 7, 2013, are DENIED as moot. The time for filing a petition for rehearing and petition for rehearing en banc shall start anew as of the filed date of the opinion.

OPINION

A jury convicted Petitioner Kimberly Louise Long of second-degree murder for the bludgeoning death of her boyfriend, Oswald " Ozzy" Conde, in the home that they shared. The California state courts affirmed her conviction on appeal, and the federal district court then denied her petition for a writ of habeas corpus. In this court, Petitioner argues that the district court erred because the evidence adduced at trial was insufficient to permit a rational jury to find her guilty beyond a reasonable doubt. Reviewing de novo the district court's decision to deny the petition for a writ of habeas corpus, Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004), we affirm.

STATEMENT OF FACTS

Petitioner and her boyfriend Conde lived together. On October 5, 2003, Petitioner, Conde, and their friend Jeffrey Dills [1] spent the day riding motorcycles and drinking heavily. While at a bar, Petitioner and Conde argued about her flirtatiousness toward other men. Petitioner became upset and rode to her house with a friend of Dills'. Dills and Conde followed separately on their motorcycles. When Conde arrived home, he continued the argument with Petitioner in their driveway. Petitioner was still very angry because Conde had embarrassed her in front of other people. She pushed and yelled at Conde and told him that he was a " loser" who had no job and did not pay his fair share and that she wanted him out of her house. Petitioner hit Conde with her hand, her purse, her motorcycle helmet, and a novelty hat that ...


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