
    Andy Larance SMITH, Petitioner-Appellant, v. Ernie ROE, Warden, Respondent-Appellee.
    No. 04-17465.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Oct. 18, 2005.
    Decided Dec. 21, 2005.
    Mary Katherine McComb, Davis, CA, for Petitioner-Appellant.
    J. Robert Jibson, Office of the California Attorney General, Department of Justice, Sacramento, CA, for Respondent-Appellee.
    
      Before: KOZINSKI and FERNANDEZ, Circuit Judges, and HATTER, Senior District Judge.
    
    
      
       The Honorable Terry J. Hatter, Jr., Senior United States District Judge for the Central District of California, sitting by designation.
    
   MEMORANDUM

Unlike subsequent versions of California Penal Code § 290, which describe the registration obligations of transients, see, e.g., CaLPenal Code § 290(a)(C)(i) (2005), at the time of Smith’s alleged offense in 1996, a homeless person’s registration obligations were unclear. See CaLPenal Code §§ 290(a), (f) (1996). The state failed to introduce sufficient evidence to support a finding that Smith knowingly faded to register under the statute. “[A]ctual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.” Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 243, 2 L.Ed.2d 228, 232 (1957). Therefore, Smith’s conviction cannot stand.

“Because a defendant may not be retried under the Double Jeopardy Clause if the evidence against him is insufficient to support a conviction,” (United States v. Messer, 197 F.3d 330, 341 (9th Cir.1999); see also Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 566-67 (1979)), the district court must issue the writ of habeas corpus. Although Smith has requested a new trial, because his conviction is insufficient as a matter of law under Jackson, he may not be retried.

REVERSED and REMANDED for issuance of the writ in accordance with this memorandum disposition. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
     