Brookey Lee West v. Sheryl Foster;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable William H. Albritton, III, Senior District Judge for the**
U.S. District Court for Middle Alabama, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BROOKEY LEE WEST,
Petitioner -Appellant,
v.
SHERYL FOSTER; et al.,
Respondents - Appellee.
No. 10-17244
D. C. No. 2:07-cv-00021-KJD-
GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted October 12, 2011
San Francisco, California
Before: THOMAS and MURGUIA, Circuit Judges, and ALBRITTON, Senior
District Judge.**
Brookey Lee West (“West”) appeals the district court’s denial of her 28
U.S.C. § 2254 petition for a writ of habeas corpus.
FILED
OCT 24 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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West argues that the Nevada Supreme Court violated the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) by acting contrary to clearly established
federal law as determined by the Supreme Court when it determined that the State
produced sufficient evidence to establish that the victim died by the criminal
agency of another (the “corpus delicti” element). See 28 U.S.C. § 2244(d).
Moreover, West seeks to expand the scope of the Certificate of Appealability
granted by the district court. Because the history and facts of the case are familiar
to the parties, we need not recount them here.
This court reviews the denial of a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 de novo. Dows v. Wood, 211 F.3d 480, 484 (9th Cir.
2000).
The standard of review by federal courts of state court decisions governed
by AEDPA is a “highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt."
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal
quotation marks omitted). As per the AEDPA, the Nevada Supreme Court’s
decision must have been an unreasonable application of Supreme Court precedent
to warrant a writ of habeas corpus. See Sims v. Rowland, 414 F.3d 1148, 1151 (9th
Cir. 2005).

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We affirm the district court’s denial of West’s petition for habeas corpus.
In Jackson v. Virginia, the Supreme Court provided the standard for determining
the sufficiency of the evidence at a criminal trial. 443 U.S. 307 (1979). The Court
explained that “the relevant question is 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.” Id. at 319 (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).
West’s primary argument focuses on the indeterminancy of the medical
evidence. That argument, however, overlooks other circumstantial evidence relied
on by the Nevada Supreme Court including: the manner in which the victim’s body
was found, the plastic bag tied over her face, evidence of the unhealthy relationship
between West and the victim, and evidence indicating that West fabricated a story
of moving the victim to California even before she disappeared. Viewing the facts
in this case in the light most favorable to the prosecution, this Court cannot say that
the Nevada Supreme Court’s decision to uphold West’s conviction was
unreasonable.
Because the Nevada Supreme Court’s decision comports with the
requirements of 28 U.S.C. § 2254(d), West’s petition was appropriately denied.

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As to West’s request to expand the Certificate of Appealability to include
two other issues, the Court finds that no reasonable jurist could debate the
correctness of the district court’s ruling on these issues. Accordingly, the Court
declines to expand the certificate of appealability.
The district court’s denial of West’s petition for habeas corpus is
AFFIRMED.

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