The opinion filed on September 29, 2014, is amended and the amended majority and dissenting opinions are filed concurrently with this order. With these amendments, a majority of the panel has voted to deny the petition for panel rehearing. The full court has been advised of the petition for rehearing and rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. A majority
BEA, Circuit Judge, with whom O'SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA, and N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:
The ink is hardly dry on the Supreme Court's latest reversal of another of our judgments where we disregarded the deference the Antiterrorism and Effective Death Penalty Act ("AEDPA")
First, the Majority reads Davis v. Ayala to hold that a federal habeas court's finding that a state trial court error was prejudicial under Brecht
The Majority did so by committing its second error: It read Justice Alito's statement that "the Brecht test subsumes the limitations imposed by AEDPA," id. at 2199, to mean that Brecht eliminated, rather than incorporated, AEDPA deference. But it is hard to see how that can be correct when the Brecht standard was developed in 1993—three years before AEDPA was enacted. And of course, were the Majority's understanding the correct reading of the phrase, Ayala would necessarily have come out the other way.
Third, applying its faulty test, the panel Majority's analysis fails to afford proper AEDPA deference to the state court's harmless error determination. In the portions of the Majority's opinion dedicated to finding the state court's determination of harmless error unreasonable, the Majority considers only the evidence and arguments pointing to a prejudicial effect of the prosecutor's misconduct, rather than (as AEDPA requires) whether any of the evidence and arguments put forth by the state court provided a reasonable basis for that court's determination that any error was harmless.
Fourth, the legal basis for the Majority's conclusion that "no fairminded jurist" could agree with the state court's finding of harmless error under Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), in fact supports the opposite conclusion. That is, every Supreme Court precedent regarding prosecutorial misconduct cited by the Majority found not prejudicial error, but harmless error.
As highlighted in Judge M. Smith's dissent in Deck v. Jenkins, 768 F.3d 1015, 1031 & n. 1 (9th Cir.2014), the Majority's approach to federal habeas review has been rejected by the Supreme Court not once, not twice, but upwards of a dozen times. See, e.g., Ayala, supra, 135 S.Ct. at 2196-99, 2208; see also Richter v. Hickman, 578 F.3d 944 (9th Cir.2009) (en banc), rev'd and remanded by Harrington v. Richter, 562 U.S. 86, 101-02, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (rejecting our conclusion that because" we found a prejudicial Strickland violation under Brecht, the "state court's decision to the contrary constituted an unreasonable application of Strickland," and explaining that "AEDPA demands more" than the traditional Brecht test); Smith v. Mitchell, 624 F.3d 1235 (9th Cir.2010), rev'd and remanded sub nom. Cavazos v. Smith, ___ U.S. ___, 132 S.Ct. 2, 6-8, 181 L.Ed.2d 311 (2011) (per
In sum, the Deck Majority's application of Brecht without § 2254(d)(1) deference flouts the Supreme Court's recent mintage in Davis v. Ayala by immediately reinstating the framework the Court had just rejected. Moreover, because the Ayala Court reversed and remanded that case back to the Ninth Circuit for proceedings consistent with its opinion, see Ayala, 135 S.Ct. at 2208, the Deck Majority's issuance of a directly contradictory opinion will immediately create not only an intra-Circuit split, but also divergence between our own precedent and that of our sister Circuits. See Fed. R.App. P. 35(a)(1).
In Davis v. Ayala, the Supreme Court squarely addressed the proper interaction between Brecht's' "actual prejudice" standard, see n. 3, supra, and AEDPA's mandated deference (which post-dates Brecht),
The Supreme Court reversed us yet again,
Consistent with this framework, the Supreme Court's analysis in Ayala "beg[a]n with the prosecution's explanation[s]" for striking each juror and concluded with findings that the petitioner could show neither "actual prejudice" (Brecht) nor that "no fairminded jurist could agree with the state court's application of Chapman." See, e.g., Ayala, 135 S.Ct. at 2203; see also 28 U.S.C. § 2254(d)(1). The Court again chastised our court for failing to consider—without "substitut[ing] its own opinions"—whether "any fairminded jurist" could agree with the state court's proffered reasons for finding any error was harmless. See, e.g., Ayala, 135 S.Ct. at 2202 ("The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems . . . not to apply de novo review of factual findings and to substitute its own opinion for the [state court's] determination. . . ." (internal quotation marks and citations omitted)); see also id. at 2205 (rejecting the Ninth Circuit's "speculation" and "flight of fancy" about "extrarecord information defense counsel might have mentioned").
In her Ayala dissent, Justice Sotomayor argued that "[i]f a trial error is prejudicial under Brecht's standard, a state court's determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable." Ayala, 135 S.Ct. at 2211 (2015) (Sotomayor, J., dissenting). But that proposition is exactly what the Davis v. Ayala majority had just rejected. See id. at 2197, 2208 (holding that the Ninth Circuit's finding of actual prejudice under Brecht did not "necessarily" render the state court's contrary finding "unreasonable";
With these principles in mind, I turn to the present federal habeas claim by 46-year-old Stephen Deck ("Deck") arising from his California state court conviction of attempt to commit a lewd or lascivious act on a child under the age of 14. See Cal.Penal Code §§ 288(a); 664. Defendant Deck began chatting online with a fictitious 13-year-old girl named "Amy." "Amy" was actually a volunteer working on a police sting operation targeted to identify and arrest adults using the internet to meet minors for sex. Deck identified himself in his online profile as a 46-year-old male who was "single and looking." Deck initiated contact with Amy by sending her a message stating, "Older for younger here." Amy responded positively, and the two began exchanging sexually suggestive messages nearly every day for a week. Throughout these chats, Deck called Amy "hot," a "hottie," "sexy," and "a little slutty." Deck said he wanted to "date" Amy, to take pictures of her, to "hold" her, and to "kiss" her. When Amy replied "that is what [boyfriends] and [girlfriends] do," Deck interjected, "[m]mm, yessss . . . [a]ll that and more. . . ." Deck said he wanted to perform oral sex on Amy, promising that it would feel "so good." Deck used the imagery of "eating pie" as an allusion to oral sex. Deck asked Amy about her own sexual experiences and how she "like[d] sucking cock?"
In arranging their first date, Deck—a lieutenant in the California Highway Patrol—expressed trepidation about meeting at Amy's apartment, indicating that he would "hate to walk into an apartment where I don't know—really who's there" and told Amy that he needed to "make sure if it's real. . . ." Ultimately, Amy and Deck decided to meet in a park next to Amy's apartment. But in discussing what the pair would do on their first date, Deck agreed they would "eat pie and stuff and talk," and repeatedly suggested they "see what's on TV" (presumably at Amy's house, not at the park). On the day of the planned rendezvous, Deck claimed to have a "sore throat." When Amy told Deck they would have to wait two more weeks before Amy's mom would be "working" on a weekend again (so that Amy would be home alone), Deck decided to come over despite his illness to "say hi and meet [Amy]." Just before signing off, Deck reminded Amy, "Remember I am sick so no kissing or nothing. Just bringing you your pie." But Deck also announced, "I probably won't be able to keep my hands off of you." Deck drove 45 minutes to Amy's house and arrived at 8:35 p.m. He parked in Amy's apartment complex and walked to the park. Spotting a young female, Deck approached and asked whether she was "Amy." The female responded by asking whether he was "Steve." When Deck acknowledged his identity, police arrested him. Investigators searched Deck's person and found a digital camera and a piece of pie. A search of Deck's vehicle revealed a Mapquest printout with directions to Amy's apartment and six expired condoms. Deck's home computer contained sexually charged chat logs between Deck and two other young girls with whom Deck had attempted to arrange meetings.
Deck was charged in California state court with attempt to commit a lewd or lascivious act upon a child. See Cal.Penal Code §§ 288(a); 664. As applied to these, facts, California law required that Deck intended to "touch" Amy on the night of the "date," though the touching need not appear sexual and could occur anywhere on Amy's body or through clothing. Deck's theory of defense at trial was that "like it or not the law [of attempt] is on Mr. Deck's side," because the prosecutor cannot show beyond a reasonable doubt that Deck intended to touch Amy that night. The prosecutor called the defense's theory "baloney," arguing that in the "defendant's own words," "he wouldn't be able to keep his hand off of [Amy]," and thus he "definitely" intended to touch Amy that night. The prosecutor emphasized that something as apparently benign as giving Amy a goodbye "hug," holding her hand, or posing her for photos would have qualified as "lewd" under § 288(a), given Deck's sexual intent. But, at one point, the prosecutor also argued (improperly): "I don't have to prove to you that [Deck] was going to commit a lewd act on . . . February 18th, 2006. . . . [E]ven if his intent was just to meet [Amy], get to know her, break the ice and follow up the next day, the next week, maybe [in] two weekends when Mom's gone . . . that is all I need." Defense counsel neither objected, nor moved to strike, nor asked for a curative instruction.
At the end of the parties' arguments, the judge properly instructed the jury that attempt in California requires an "immediate step" that "goes beyond planning or preparation" and "puts the [defendant's] plan into motion so that the plan would have been completed [absent some `out-side' circumstance]." On the first day of deliberations, a Thursday, the jury sent the judge a note, asking him to "clarify [the] law as it relates to whether defendant did not have to do anything that day only attempt to put it into play." This question prompted debate between counsel regarding the immediacy element of attempt. The judge requested supplemental briefing and dismissed the jury pending resolution of the issue. The jury reconvened the following Tuesday, December 21, 2009, by which time one juror had fallen ill and been replaced by an alternate. The judge never answered the jury's original question—instead instructing the "new" jury to begin deliberating anew and inviting it to submit any "questions" it "want[ed] answered."
Deck appealed his conviction to the California Court of Appeal ("CCA"), arguing that the prosecutor's misstatement of law negated an essential element of attempt: that the attempted act was to occur that night. Moreover, Deck argued, his arrangement to meet Amy in a public park, combined with his statements that he was "sick" and just wanted to "say hi," made Deck's intent to commit a lewd act on the night of the sting too ambiguous to render the prosecutor's misstatement "harmless."
First, the CCA emphasized that § 288(a)'s "touching" requirement could be satisfied by a range of apparently nonsexual touching, like a seemingly "innocent hug" or "other . . . public" touching. People v. Deck, No. G043434, 2011 WL 2001825, at *10 (Cal.Ct.App. May 24, 2011) ("The `controlling factor' is the defendant's intent when touching the minor, not the type of touching.'"). There was no reason why the requisite touching could not occur in a public park. Id. Nor did the fact that Deck planned to meet Amy in public mean that Deck intended to remain in public. Id. Deck had explained that he wanted to "make sure if it's real and you're there." Deck had told Amy earlier that day that the pair would watch TV on their date (presumably, not in the park) and eat "pie," a double entendre for oral sex. Deck arrived after dark with a camera. The standard for attempt is also not particularly onerous: California courts have found attempt where the defendant showed up at a public bus station to meet a minor before going to a hotel. Id. at *8 (citing People v. Crabtree, 169 Cal.App.4th 1293, 1322-23, 88 Cal.Rptr.3d 41 (2009)).
With these principles in mind, the CCA found "sufficient evidence" to prove that Deck intended to commit a lewd act on Amy on the night of the sting: Deck specifically sought out Amy because of her age ("Older for younger here"); Deck engaged in repeated, sexually explicit communications with Amy in which he indicated a clear desire to kiss, photograph, and perform oral sex on Amy (thus establishing that Deck possessed the requisite mental state to render any touching unlawful under § 288(a)); Deck used "eating pie" as a euphemism for oral sex, and told Amy on the day of the date that he would "bring her pie" and would probably not be able to keep his hands off her; Deck drove 45 minutes to Amy's house, while Amy was home alone, and while "ill," because he could not wait two more weeks to see her; Deck arrived at the park by Amy's house with a camera and condoms. Id. at *9. Given the "jury's role in assessing the credibility of Deck's statements," a "rational juror" could conclude that Deck's claims of illness and his insistence on meeting Amy outside were merely a "ploy" to verify Amy's age and identity. Id. Assuming "Amy" was real, Deck had every intention of "touching" her within the broad meaning of § 288(a). Id.
Second, the CCA noted, the prosecutor's closing argument properly focused "on Deck's clear intent . . . to commit a lewd act with the victim on the weekend he actually met with her." Id. at *12. The prosecutor's "errant gloss on the law of attempt" was an "isolated departure in a few stray words" from that theme. Id.
Third, the trial court properly instructed the jury, and California law presumes that the jury followed these instructions over any contrary statements by counsel. Id. at *12-13.
For all these reasons, the CCA concluded, any misstatement by the prosecutor was harmless.
On habeas appeal, a federal magistrate judge reviewed the CCA's analysis at length and recommended that it was "neither an unreasonable application of, nor contrary to, clearly established federal law." Deck v. Jenkins, No. SACV 11-1767 MWF FFM, 2012 WL 6853245, at *11 (C.D.Cal. Nov. 7, 2012), report and recommendation adopted, No. SACV 11-1767 MWF FFM, 2013 WL 146351 (C.D.Cal. Jan. 14, 2013). The district court agreed and denied Deck's petition for relief, but granted a Certificate of Appealability ("COA") regarding the harmlessness of the prosecutor's misstatement of law. Deck, 2013 WL 146351, at *1.
A divided Ninth Circuit panel has reversed. Deck v. Jenkins, 768 F.3d 1015, 1017 (9th Cir.2014). The Majority opined, as a threshold matter, that an error of constitutional magnitude had occurred (the prosecutor's misstatement violated Deck's right to due process under Darden). Id. at 1031. The Majority also concluded that it had "grave doubt" as to whether the prosecutor's misstatements were harmless under Brecht, and granted habeas relief on this basis. Id. Issuance of the court's mandate was thereafter stayed pending the outcome of Davis v. Ayala—which fundamentally contradicted the Majority's analysis. Nonetheless, the Majority stayed its course, reading Justice Alito's reversal of our grant of habeas relief in Ayala based on a bare application of Brecht as somehow affirming precisely the opposite: that the panel may grant habeas relief as long as it found "actual prejudice" under Brecht; no separate AEDPA analysis was required. See Op. at 985-86. For the reasons set forth below, neither the Majority's statement of the applicable legal standard, nor its analysis, can be squared with binding Supreme Court precedent.
The Majority's first error lies in its adoption of an approach to federal habeas
The legal standard Justice Sotomayor advanced in dissent is fundamentally inconsistent with that applied by the Ayala majority, and thus the Deck Majority erred in relying upon it. To start, Justice Sotomayor stated that the Ayala majority did nothing more than "simply restate[ ] the holding of Fry v. Pliler." Id. at 2211. That is simply not accurate—Fry did not involve an application of AEDPA. The issue in Fry was whether a federal habeas court should apply Chapman de novo (instead of Brecht de novo) where the state court had "failed to recognize [any constitutional] error" and thus had not engaged in any harmless error analysis on direct review. Fry v. Pliler, 551 U.S. 112, 114, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). The Fry Court held that for reasons of "finality, comity, and federalism," a federal habeas court must apply Brecht on habeas review, even where the state court never applied Chapman. Id. at 116, 121-22, 127 S.Ct. 2321. But the Fry Court had no occasion to consider the effect of AEDPA on Brecht where—as here—there has been a prior state-court finding of harmless error. Thus, Justice Sotomayor erroneously interpreted Fry when she suggested that the Court there held a finding of "prejudic[e] under Brecht . . . [renders] a state court's determination that the error was harmless beyond a reasonable doubt . . . necessarily unreasonable." Ayala, 135 S.Ct. at 2211.
In fact, the Supreme Court squarely confronted and rejected this very contention in Davis v. Ayala, supra, and Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). In both cases, the Court emphasized that the Chapman/AEDPA standard requires something more than a traditional application of Brecht. See, e.g., Harrington, 562 U.S. at 101-02, 131 S.Ct. 770 (rejecting this Circuit's conclusion that a finding of actual prejudice under Brecht satisfied AEDPA/Chapman and explaining that such a proposition must be incorrect-to hold otherwise would render AEDPA a nullity). The Majority's adoption of Justice Sotomayor's statement that Chapman/AEDPA is wholly redundant of Brecht is directly contrary to the central rule of Darns v. Ayala that Chapman/AEDPA sets forth a mandatory "precondition" to habeas relief. Ayala, 135 S.Ct. at 2198-99. It also contravenes the Supreme Court's instruction that "[u]nder § 2254(d), a habeas court must determine what arguments or theories supported or. . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. . . . [That is] the only question that matters under § 2254(d)(1)." Harrington, 562 U.S. at 101-02, 131 S.Ct. 770 (emphases added) (internal quotation marks omitted) (reversing the Ninth Circuit's grant of habeas where the Ninth Circuit had applied Brecht de novo, found a Strickland violation, and "declared, without further explanation,
True, as Justice Sotomayor and the Deck Majority have pointed out, the Fry Court did suggest that Chapman/AEDPA was "more liberal" (i.e. more petitioner-friendly) than Brecht. See Fry, 551 U.S. at 119-20, 127 S.Ct. 2321; see also Op. at 985-86.
The Majority's erroneous conclusion that we apply the same Brecht test irrespective of whether a state court has previously found a claimed constitutional error harmless beyond a reasonable doubt also appears to stem from a misinterpretation of the word "subsumes." In delivering the opinion of the Ayala Court, Justice Alito explained that "a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA." Ayala, 135 S.Ct. at 2199 (emphasis added). From the word "subsumes," the Deck Majority concludes that Brecht somehow already incorporates AEDPA deference thereby eliminating the need to conduct an independent Chapman/AEDPA analysis. See Op. at 985-86. But read in light of the Ayala Court's reversal of our holding that a Brecht analysis alone could support a grant of habeas relief, the word "subsumes" cannot possibly have the meaning ascribed to it by the Deck Majority. Indeed, Brecht pre-dates AEDPA. It is thus historically and logically impossible that Brecht already incorporates AEDPA deference. And the very fact that Justice Alito distinguished between
True, as the Deck Majority also pointed out, the Court's opinion in Ayala suggested that a habeas court need not "formally" apply both Brecht and Chapman/AEDPA. But as the Court's analysis demonstrates, the lack of a procedural process does not make the Chapman/AEDPA standard any less of a requirement. See, e.g., Ayala, 135 S.Ct. at 2202-05.
As the Ayala Court made plain, Chapman/AEDPA provides a "precondition" to relief, see id. at 2198, and it is Brecht's standard that "necessarily" cannot be met "if a fairminded jurist could agree with the [CCA's] decision that [the prosecutor's error] met the Chapman standard of harmlessness," id. at 2199.
The Majority's disregard for AEDPA is further belied by its failure to cite a single Supreme Court case that actually found constitutional error based on prosecutorial misconduct, particularly where the jury was properly instructed. See Op. at 977-79. Indeed, every Supreme Court
Ultimately, the Deck Majority appears to rely solely on the general principle that a prosecutor's misstatement could amount to a prejudicial constitutional violation if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181, 106 S.Ct. 2464 (nonetheless finding that the prosecutor's numerous "improper" statements did not meet this standard). And while the Majority is correct that Darden provides the relevant
If anything, clearly established Supreme Court precedent supports the CCA's application. For example, in denying habeas relief, Boyde explained that "arguments of counsel generally carry less weight with a jury than do instructions from the court. . . . [and] must be judged in the
Likewise, it is clearly established that "[a] jury is presumed to follow its instructions." Weeks, 528 U.S. at 234, 120 S.Ct. 727 (selection also quoted by the Deck Majority). Here, it is undisputed that Deck's jury was "properly instructed" on the relevant principles of attempt after the prosecutor's misstatement regarding the law of attempt. The judge also instructed the jury to follow these instructions over "conflict[ing] statements of counsel." True, the instructions did not expressly state that the jury must find an intent to touch Amy on the first night. But both Boyde and Weeks, held that a jury is presumed to have understood and correctly applied jury instructions that are "not concededly erroneous"—even if the instructions are not "pin point." See, e.g., Boyde, 494 U.S. at 380, 384-86, 110 S.Ct. 1190 (in a capital proceeding, the Eighth Amendment is not violated absent a "reasonable likelihood" that the jury incorrectly interpreted its jury instructions as precluding consideration of mitigating evidence). In Weeks, for example, the jury submitted a question about whether it had a "duty," or merely discretion, to impose the death penalty. Weeks, 528 U.S. at 229, 120 S.Ct. 727. Instead of answering the jury's question directly, the judge pointed the jury to "Instruction # 2." Id. The Supreme Court found that, because the jury instructions were accurate and "constitutionally adequate," the jury's failure to seek additional clarification—even on an issue as important as whether or not to apply the death penalty—must be presumed to indicate that the jury understood and properly applied its instructions. Id. at 234, 120 S.Ct. 727 ("To presume otherwise would require reversal every time a jury inquires about a matter of constitutional significance, regardless of the judge's answer."). The state court's finding of no constitutional error was therefore not an unreasonable application of clearly established law under section 2254(d). Id. at 237, 120 S.Ct. 727.
Similarly in Deck's case, the jury received accurate jury instructions.
In any event, the CCA could reasonably have concluded that the evidence against Deck was so strong that the jury would have found him guilty irrespective of the judge's answer to its question. Darden itself emphasized that strong evidence against a petitioner "reducers] the likelihood that [a] jury's decision was influenced by [a prosecutor's improper] argument." Darden, 477 U.S. at 182, 106 S.Ct. 2464. Here, the CCA found "ample evidence . . . to support the jury's finding [that] Deck attempted to commit a lewd act with `Amy'" on the night in question. Deck referred to Amy as "hot," a "hottie," "sexy," and "slutty"; he told Amy he wanted to date her, to kiss her, to perform oral sex on her, and to do other sex acts that "boyfriends and girlfriends" do. Deck's stated intention to "see what's on TV" on the first date, coupled with his arrival after dark with a camera, strongly supports an inference that Deck intended to go to Amy's apartment after he had confirmed that she was "real." Deck's supposedly exculpatory statements that he was "sick" and that he was "just bringing [Amy] pie" do not compel a contrary conclusion. Deck had previously used "pie" as an allusion to oral sex. A fairminded juror could readily conclude that Deck—being a law enforcement officer—used the euphemism in setting up his first meeting with Amy to "create a defense" for himself (as the prosecutor argued) until he had confirmed that Amy was real. Likewise, a fairminded juror could be highly skeptical of Deck's claim that he was "ill," given Deck's ensuing decision to drive 45 minutes to Amy's house ostensibly just to "say hi."
In sum, the CCA's analysis was a patently reasonable application of clearly established Supreme Court precedent. Had the Majority applied Ayala and AEDPA properly, it could not have reached its result. Of course, were it reviewing these facts de novo, the panel might disagree with the CCA. In fact, the Deck Majority makes a good argument in that regard. But that is not the question on collateral, habeas review. As Judge M. Smith argues persuasively in his dissent, "an unreasonable application of federal law is different from an incorrect application of federal law" and that "the majority commits the same error the Supreme Court has criticized our court for making time after time by `collapsing th[is] distinction. . . .'" Deck, 768 F.3d at 1031 (quoting Nevada v. Jackson, ___ U.S. ___, 133 S.Ct. 1990, 1994, 186 L.Ed.2d 62 (2013)). It is this kind of disregard for binding Supreme Court precedent, Judge M. Smith explained in dissent, that has led the Supreme Court "in its four most recent terms . . . [to] reverse[ ] us fourteen times in cases involving our application of AEDPA . . . ten of which reversals have been unanimous." Id.
As shown above, none of the precedents cited by the Deck Majority compel a finding that the prosecutor's misstatement was prejudicial under "any reasonable application" of Darden's very general standard, see Panetti, 551 U.S. at 948, 953, 127 S.Ct. 2842, and all in fact support the CCA's analysis. To reach a contrary conclusion, the Deck Majority adopts an analytical approach that the Supreme Court this year expressly rejected—adopting Justice Sotomayor's dissent to hold that a federal court's de novo finding of "actual prejudice" "necessarily" renders the state's
The Deck Majority's analysis cannot be squared with Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015). Because this Court's failure to correct the Majority's error through rehearing en banc perpetuates both an intra-circuit and intercircuit split, I respectfully dissent from denial of re-hearing en banc.
CHRISTEN, Circuit Judge:
Stephen Deck was convicted in California of one count of an attempted lewd act upon a child under the age of 14. After exhausting review of his conviction in state court, he petitioned the federal district court for habeas relief under 28 U.S.C. § 2254, arguing that prosecutorial misstatements made during rebuttal closing argument deprived him of a fair trial. The district court dismissed Deck's petition. We reverse the district court's judgment and remand for further proceedings.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), "state court findings of fact are presumed correct unless rebutted by clear and convincing evidence." Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.2003) (citing 28 U.S.C. § 2254(e)(1)). Both Deck and the State agree that the California Court of Appeal (C CA) correctly framed the underlying facts of the case. Our opinion relies on, and quotes at length from, the CCA's opinion in People v. Deck, No. G043434, 2011 WL 2001825 (Cal.Ct.App. May 24, 2011).
In February 2006, the Laguna Beach Police Department collaborated with volunteers from an organization called Perverted Justice "on a sting operation to identify and arrest adults using the Internet to meet minors for sex." Id. at *1. "After online conversations confirmed the adult's intent, . . . decoys arranged a meeting between the adult and fictitious minor at an apartment," where the adult would be arrested. Id.
Deck, who was then a lieutenant with the California Highway Patrol, began chatting online with a fictitious girl named "Amy."
The CCA opinion described what happened next:
Id.
Deck was charged with attempt to commit a lewd or lascivious act ("lewd act") upon a child. The CCA explained that, under California law:
Id. at *7 (alterations in original) (citations omitted). Deck was convicted after a jury trial and sentenced to 365 days in county jail and five years formal probation.
One of Deck's arguments to the CCA was that the prosecutor's rebuttal closing argument misstated the law of attempt. Id. at *11. The CCA agreed, but held that the prosecutor's "lone misstatement" of the law was rendered harmless by the trial court's correct jury instructions. Id. Because the issue in this appeal is highly fact-specific, it is worth providing the CCA's description and analysis of the prosecutor's error in (close to) its entirety.
The CCA first summarized the prosecutor's statements as follows:
Id. at *11 (alterations in original) (citations omitted).
The CCA next discussed whether the prosecutor's statements were erroneous:
Id. (alterations in original).
The CCA concluded that the prosecutor misstated the law: "Deck argues the prosecutor in his closing argument misstated the law of attempt. He did. . . ." Id. The CCA explained:
Id. at *12 (alterations in original) (citations omitted).
Having decided that the prosecutor's misstatements of California law negated an essential element of attempt, the CCA concluded that the misstatements were not prejudicial to Deck:
Id. (citation omitted).
The CCA reasoned that, based solely on these jury instructions:
Id.
The CCA recognized that Deck's argument relied heavily on the jury's request for clarification of the law relating to the prosecutor's closing rebuttal argument:
Id. at *13.
Finally, the CCA reasoned that the jury's failure to resubmit its question (or a similar one) after restarting deliberations demonstrated the jury was not misled by the prosecutor's misstatements:
Id.
The CCA's version of events contains most of the details relevant to this appeal, but three additional points are helpful. First, Deck's trial defense was that Deck, a California Highway Patrol Officer, approached his initial meeting with Amy cautiously and lacked the mental intent to engage in a lewd act "on that date." Defense counsel emphasized this point heavily during his closing argument. The prosecutor recognized the importance of this defense argument and told the judge that
Deck filed a petition for review to the California Supreme Court, which denied review. Deck then filed a petition in federal court for writ of habeas corpus pursuant to 28 U.S.C. § 2254. A federal magistrate judge recommended dismissal of the petition with prejudice, and the district court adopted the magistrate's findings and recommendations. Deck appeals.
We have jurisdiction under 28 U.S.C. § 2253. We review the district court's denial of Deck's § 2254 habeas corpus petition de novo. Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir.2008). Looking through the district court's decision, we examine the last reasoned state-court decision, which in this case is the opinion of the CCA. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003).
The CCA decided that "pushing defendant's intent to commit a lewd act on `Amy' to, potentially, `next week' or in two weekends' or `just some point in the future' negate[d] the essential element necessary to constitute an attempt." Deck, 2011 WL 2001825, at *12. In other words, the CCA established that a trial error occurred through the prosecutor's misstatement of California law. See Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir.2012) (prosecutorial misconduct is a trial error). We do not review this ruling, nor do we review the state court's interpretation of the California law of attempt as applied to Deck's case. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) ("[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.").
Whether a trial error amounts to a constitutional violation depends on the extent to which it renders the proceedings unfair. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A constitutional trial error does not warrant reversal if "it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). On habeas review, we must evaluate whether the CCA's decision "was contrary to, or involved an unreasonable application of, [this] clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
It is clearly established under Supreme Court precedent that a prosecutor's
We recognize that "clearly established federal law" for purposes of AEDPA review includes only "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions." White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (quoting Howes v. Fields, ___ U.S. ___, 132 S.Ct. 1181, 1187, 182 L.Ed.2d 17 (2012)). Therefore, we do not construe the reasoning used in prior Supreme Court decisions as an "elaborate, multistep test." Parker, 132 S.Ct. at 2155. No single consideration should be treated as either necessary or sufficient to reach a decision. See id. at 2155-56 (holding appellate court's use of multistep test for unconstitutionality of prosecutorial misconduct improperly departed from the "highly generalized standard" in Darden).
Holding that a condemnatory closing argument did not deprive the petitioner in Darden of a fair trial, the Supreme Court reasoned that the prosecutor "did not manipulate or misstate the evidence" and that the trial court properly instructed the jury "that the arguments of counsel were not evidence." 477 U.S. at 181-82, 106 S.Ct. 2464. The Court also considered the "heavy" weight of the evidence against the petitioner, which "reduced the likelihood that the jury's decision was influenced by argument." Id. at 182, 106 S.Ct. 2464.
The Supreme Court elsewhere observed that:
Boyde v. California, 494 U.S. 370, 384-85, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (emphasis added) (citations omitted). We recognize that "[a] slight misstatement of law by a prosecutor can be rendered harmless by the court's proper instruction to the jury." United States v. Mendoza, 244 F.3d 1037, 1045 (9th Cir.2001). And under Supreme Court precedent, a jury is presumed to follow the trial court's instructions. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
The heading of the relevant section of the CCA's decision analyzing the prosecutor's rebuttal closing argument was: "The Prosecutor's Misstatement Concerning Attempt Was Harmless." The CCA agreed with Deck that the prosecutor misstated the law of attempt but held that "this lone misstatement—counteracted by the trial court's correct instructions—was harmless."
The Supreme Court has defined a "fair trial" as "a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In Hein v. Sullivan, 601 F.3d 897 (9th Cir.2010), our court summarized the factors the Supreme Court evaluated in Darden to determine whether the petitioner's trial was "fair," and then observed that consideration of the Darden factors "appears to be equivalent to evaluating whether there was a `reasonable probability' of a different result." Id. at 914-15. California courts use the "reasonable probability" standard to evaluate whether prosecutorial misconduct renders a trial fundamentally unfair under state law. See People v. Partida, 37 Cal.4th 428, 35 Cal.Rptr.3d 644, 122 P.3d 765, 771 (2005); People v. Espinoza, 3 Cal.4th 806, 12 Cal.Rptr.2d 682, 838 P.2d 204, 212 (1992). We therefore conclude that, although the CCA did not independently evaluate the federal constitutional question, its harmlessness analysis can be seen as an implied ruling that no federal constitutional violation occurred because the prosecutor's error was harmless.
To be entitled to habeas relief, it is not enough for Deck to show that the CCA's determination that no constitutional violation occurred was "incorrect or erroneous." He must show the CCA's determination was "objectively unreasonable." Lockyer, 538 U.S. at 75, 123 S.Ct. 1166.
In its analysis of prejudice, the CCA reasoned that "the prosecutor's errant gloss on the law. . . . was an isolated departure in a few stray words and not the focus of the prosecutor's argument." Deck, 2011 WL 2001825, at *12. But it is clear the erroneous assertions of law in the prosecutor's closing rebuttal argument were not mere "stray words," they were a direct response to the central theory of Deck's case. See 28 U.S.C. § 2254(e)(1).
The contention that Deck did not intend to commit a lewd act on the night of the meeting was absolutely central to his defense. In closing argument, defense counsel told the jury that, while Deck's conduct may have been reprehensible, it did not constitute attempt. He stressed that Deck's defense was a technical one, telling the jury that this was a case where law and justice might not be "on the same side" and "don't necessarily meet." Defense counsel expressly argued to the jury that "Mr. Deck never had the intent in the first place to engage in a lewd act" on the date of the meeting, and that "Mr. Deck had a definite and unambiguous intent not to engage in a lewd act on that date" (emphasis added). Leaving no doubt that the jury would be required to examine the precise elements of the law of attempt in California, defense `counsel argued: "Like it or not[,] the law is on Mr. Deck's side in this case. Like it or not." Whether Deck had advanced beyond mere preparation and intended to commit a lewd act on the night of the meeting was not a side issue in his trial; it went to the heart of Deck's defense, and his counsel made this abundantly clear to the jury.
The prosecutor's statements about the purpose of his rebuttal closing argument contradict the CCA's description of his misstatements as stray words. After the jury sent its note requesting clarification on the temporal requirement of Deck's intent, the prosecutor claimed that his rebuttal was necessary to convey the State's position on what the law required the State to prove:
(emphasis added). The prosecutor's view that the law did not require him to prove Deck intended to engage in a lewd act on the night of the meeting is precisely the one the CCA later rejected.
There is no doubt the trial court recognized that the defense and prosecution made directly conflicting statements to the jury regarding what the jury had to find to convict Deck, and that the court's written instructions did not address the issue. Because this question was pivotal to Deck's defense, the trial judge stated that he would "even entertain additional closing argument on [the] issue based on the fact
The CCA's characterization of the prosecutor's misstatements as brief and errant departures from an otherwise sound argument is contradicted by the record. The State's rebuttal unambiguously repeated several erroneous statements regarding what California law required to convict Deck. The misstatements were the counterpunch to Deck's "like it or not" closing argument. The prosecutor told the jurors that although the evidence showed Deck intended to engage in lewd conduct that night, they could convict Deck even if they agreed with the defense that the evidence raised reasonable doubt about when Deck would have followed through:
The prosecutor's repetition of the phrase "even if" unquestionably shows that he presented alternative theories of the case on which the jury could rely to convict Deck, rather than making a passing incorrect statement of his primary argument. The prosecutor's unequivocal assertions—"that is all I need" and "that is sufficient under the law for the defendant to be guilty"—leave no doubt he was arguing, incorrectly, that the jury could still convict Deck even if it had doubt about whether Deck intended to engage in a lewd act on the night of the meeting.
The unequivocal manner in which the prosecutor presented his alternative theory, using statements like "sufficient under the law," created a significant likelihood that the comments would be "viewed as definitive and binding statements of the law," rather than merely as argument. See Boyde, 494 U.S. at 384, 110 S.Ct. 1190. We need not engage in speculative Monday morning quarterbacking to know the rebuttal argument may have seriously misled the jury; the jury's note to the trial court after the start of deliberations went straight to this contested point of law. It asked the court to "[c]larify law as it relates to whether defendant did not have to do anything that day only attempt to put it into play." In other words, the jury asked whether it needed to find that Deck would have committed a lewd act on the night of the meeting. But as explained in the next section, the trial court never clarified this point of California law.
"Arguments of counsel which misstate the law are subject to objection and to correction by the court," id., but here the trial court did not correct the prosecutor's misstatements; the written instructions said nothing about the temporal component of the State's burden. Nor did the court answer the question posed in the jury's note, because the jury was subsequently told to start deliberations over after a juror became sick and had to be
The CCA emphasized that "the trial court properly instructed the jury on the relevant principles" of the law of attempt. Deck, 2011 WL 2001825, at *12. The written instructions made it clear that the State needed to prove Deck: (1) "took a direct but ineffective step toward committing" the crime; and (2) "intended to commit" the crime. The instructions explained that a direct step "is a direct movement towards the commission of the crime after preparations are made" (emphasis added). The CCA held that this instruction correctly stated the law, and we do not review this holding.
But the CCA went on to conclude, based on the written instructions alone, that "the jury knew it was not enough to plan or prepare to commit a lewd act at a potential later rendezvous." Deck, 2011 WL 2001825, at *12. Reasonable jurists could not disagree that this conclusion does not comport with the record. The instructions entirely failed to address the specific misstatements made by the prosecutor. Counsel made diametrically opposing statements to the jury about whether the law required the State to show that Deck intended to commit a lewd act on the night of the meeting, and the instructions were silent on this point. The jury could have concluded that the instructions were perfectly compatible with the prosecutor's repeated assertions that Deck could be found guilty even if the meeting was merely a step in a plan to commit a lewd act "the next day, the next week, maybe [in] two weekends" because the prosecutor told the jury that, under the State's alternative theory, it was sufficient if the jury found the purpose of the initial meeting was to confirm Amy's identity before arranging a future sexual encounter.
The CCA's conclusion that the jury correctly understood the law of attempt is further undermined by the differing interpretations of the law adhered to by the trial court and counsel. The prosecutor believed the instructions permitted his view of the law, but the CCA later held that the prosecutor was wrong. Defense counsel insisted the law required more. Tellingly, the trial judge sided with the prosecutor and not the defense. After going round and round on the issue with counsel outside the presence of the jury, the judge stated:
(emphases added). The italicized sentences in this statement encapsulate a separate problem with the CCA's analysis. The CCA decided "the jury knew it was not enough to plan or prepare to commit a lewd act at a potential later rendezvous," id., but it is difficult to imagine "the jury knew" something from the jury instructions that even the trial judge who gave the instructions did not know.
The trial judge and counsel plainly agreed that the jury's question was not addressed by the court's written instructions, and they expected the jury to come back with another version of its initial question after it restarted deliberations with the new juror. Working to craft an answer to the question when the bailiff announced there was a verdict, the court seemed surprised that the jury could have reached a verdict without having its earlier question answered:
The dissent relies on the presumption that a jury understands and follows the court's instructions. We recognize the existence of this well-established presumption, but it is not dispositive here for a simple reason the dissent fails to acknowledge: the jury instructions on attempt did not address the temporal issue that was the gravamen of the prosecutor's misstatements. The instructions did say that to be convicted of attempt, the defendant must put his "plan in motion so that the plan would have been completed if some circumstances outside the plan had not interrupted the attempt." But this provided no guidance as to whether, in order to convict Deck, his plan would have to be completed that night, or, as the prosecutor incorrectly told the jury, Deck merely had to put in motion a plan to complete the act "the next day, the next week, maybe two weekends [later]." The trial judge's interpretation of the instructions in a manner inconsistent with the CCA's determination of California law vividly illustrates that, even if the jury read the instructions carefully and made their best effort to follow them, they could no more than guess at the correct rule of California law. To be clear, we do not believe the jury failed to follow the trial court's directions in the sense that it disregarded the court's instructions. Rather, the record shows that the most diligent of juries would have had no way of divining whether the prosecutor's interpretation of the law of attempt was incorrect from the instructions given to them.
In Darden, the Supreme Court reasoned that overwhelming evidence "reduced the likelihood that the jury's decision was influenced by" the prosecutor's improper argument in that case. 477 U.S. at 196, 106 S.Ct. 2464. The weight of the evidence against Deck is an important consideration, but it does not change the outcome on the facts presented here. Because fairminded jurists could not disagree that the prosecutor's misstatements went to the heart of Deck's defense, and the trial court never correctly instructed the jury that-contrary to the prosecutor's misstatements-in order to convict it had to find beyond a reasonable doubt that Deck had moved beyond preparation and intended to engage in a lewd act with Amy on the night of the meeting, fairminded jurists could reach no conclusion other than that the CCA's finding of no constitutional violation was unreasonable. See Harrington, 562 U.S. at 102, 131 S.Ct. 770.
The jury could have found Deck intended to engage in lewd touching with Amy on the night of the meeting: he had previously discussed performing sexual acts with her in graphic detail, he knew that her mother was not at home, and he had condoms in his car. As the CCA observed, "A rational juror reasonably could conclude Deck's comments [about feeling sick, wanting to meet in public, and cautioning `no kissing or nothing' at the meeting] served merely as a ploy to convince `Amy' to meet him or as a prudent precaution Deck took to verify `Amy's' age and identity." Deck, 2011 WL 2001825, at *9. By bringing a piece of pie with him, Deck could argue that his earlier message was not intended to convey a sexual overtone. Deck's background as a lieutenant with the California Highway Patrol made it more likely that he was playing it safe in his communications with Amy to avoid exactly this type of sting. The prosecutor argued along these lines in closing rebuttal that Deck "knew what the defense was" to the charge and "tried to create his own defense."
The CCA also emphasized that only minimal physical contact was required to support a conviction for committing a lewd act. The intended touching need not have been overtly sexualized to an outside observer. Id. at *10 ("[T]he jury need only have found Deck intended to touch `Amy' with the intent to arouse himself or her."). In an earlier chat discussion, Deck conceded that although he wanted to meet in public for their first date and not engage in sexual activity, "I probably won't be able to keep my hands off of you." Id. at *2.
On the other hand, the same evidence suggests the jury could have based its verdict on the prosecutor's alternative theory that Deck intended to commit lewd acts with Amy not on the night of the meeting, but on some unspecified future date. The jury may have believed Deck wanted to avoid contact with Amy on the night he was arrested because he was grooming Amy for future contacts and wanted to exercise caution by having a more limited first meeting, in public, to assess the situation and avoid a sting. The jury might even have believed that Deck did not intend contact or touching on that particular night because he was ill, as he claimed. That Deck was carrying a camera and had condoms in his car shows preparation, but these facts do not establish when he planned to follow through. The prosecutor's assurance that the jury could convict "even if' it believed the prosecution's alternative theory of the case may have influenced the jury to find "attempt" based on an anticipated future rendezvous with Amy. The jury's note suggests
Based on the foregoing, we hold that fairminded jurists could reach only one conclusion: the prosecutor's uncorrected misstatements of the law rendered Deck's trial fundamentally unfair, in violation of his clearly established constitutional rights.
Our inquiry does not end with the conclusion that the CCA's finding of no constitutional error was unreasonable. As explained, even on direct review a constitutional trial error will not warrant reversal if it was harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24, 87 S.Ct. 824. In a collateral proceeding, the test is more forgiving to the prosecution. Habeas petitioners are not entitled to relief based on trial error unless the error resulted in "actual prejudice." Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2197, 192 L.Ed.2d 323 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). "Under th[e] [Brecht] test, relief is proper only if the federal court has `grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 2197-98 (quoting O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)); see also O'Neal, 513 U.S. at 437, 115 S.Ct. 992 (defining "grave doubt" as being in "virtual equipoise as to the harmlessness of the error").
Because it is more stringent, the Brecht test "subsumes" the AEDPA/Chapman standard for review of a state court determination of the harmlessness of a constitutional violation. Fry v. Pliler, 551 U.S. 112, 120, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). A federal habeas court therefore need not formally apply both the Brecht test and the AEDPA standard; it is sufficient to apply Brecht alone. Id. A determination that the error resulted in "actual prejudice," Brecht, 507 U.S. at 637, 113 S.Ct. 1710, necessarily means that the state court's harmlessness determination was not merely incorrect, but objectively unreasonable, Davis, 135 S.Ct. at 2198-99. A separate AEDPA/Chapman determination is not required.
As explained, under clearly established Supreme Court law, the constitutional dimension of the prosecutor's misstatements turns entirely on the issue of prejudice: the error rises to the level of Darden error only if there is a reasonable probability that it rendered the trial fundamentally unfair. Our analysis of prejudice therefore overlaps completely with our analysis of the CCA's constitutional determination. We conclude no fairminded jurist could agree with the CCA's harmlessness determination, and that the prosecutor's misstatements resulted in "actual prejudice." See id. at 2203.
The CCA's decision established that the prosecutor gave incorrect direction to the jury about an element of California law under which Deck was convicted. The record establishes that the comments were not inadvertent or isolated, and it cannot be questioned they went to the heart of Deck's defense. The lawyers' diametrically opposed statements of the law in closing arguments clearly confused the jury, as evidenced by the jury's request for clarification. The jury's note asked the trial court to "clarify [the] law as it relates to whether defendant did not have to do anything that day[,] only attempt to put it into play."
Rather than disputing that the prosecutor's closing rebuttal argument perplexed the jury, the State contends the jury's failure to resubmit its question to the trial court after restarting its deliberations suggests "the jury was satisfied with the original, correct instructions on the crime of attempt when it rendered its verdict." The judge orally directed the jury:
Deck, 2011 WL 2001825, at *13. The CCA accepted that the jury satisfied itself about what Deck needed to have intended to do the night he met Amy by looking at the trial court's written instructions. Id. But when the jury resumed its deliberations, it worked from the same written instructions the original jury had, and they provided no guidance on the pivotal question.
Without the benefit of a correct statement of the law, the jury may have arrived at the same erroneous legal conclusion that the trial judge reached: that Deck could be convicted even if the jury was not sure whether he intended to commit a lewd act on the night he met Amy. After all, that is precisely what the prosecutor told the jury in rebuttal. Under these circumstances, a fairminded jurist could not conclude that the jury found beyond a reasonable doubt that Deck moved beyond preparation to commit a lewd act with Amy on the night of the meeting. Further, we are left with "grave doubt" as to the harmlessness of the constitutional trial error that occurred in Deck's case. See O'Neal, 513 U.S. at 437-38, 115 S.Ct. 992.
The prosecutor's misstatements regarding an element of the crime amounted to constitutional trial error under clearly established federal law as determined by the Supreme Court. See Darden, 477 U.S. at 181, 106 S.Ct. 2464. The misstatements lowered the prosecution's burden of proof, and therefore resulted in "actual prejudice." See Davis, 135 S.Ct. at 2197. In view of these conclusions, we
M. SMITH, Circuit Judge, dissenting:
I respectfully dissent.
The Supreme Court has repeatedly—and often unanimously—reversed our circuit's decisions granting § 2254 relief. For example, in its four most recent terms, the Supreme Court has reversed us fourteen times in cases involving our application of AEDPA, 28 U.S.C. § 2254, ten of which reversals have been unanimous. Most recently, the Supreme Court reversed us in Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015), reminding us of the difficult hurdle that petitioners must surmount in order for a federal court to reverse a state court's determination that a trial error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353
As the majority explains, Deck engaged in online conversations with a fictitious thirteen-year-old named Amy. The trial record shows that Deck and Amy exchanged sexually suggestive messages and that they planned to meet in person to "date" and to engage in sexual acts. Deck indicated that he would not feel safe meeting for the first time at Amy's home, so they arranged to meet initially at a nearby park.
The day of their planned meeting, Deck told Amy that he was sick, and said: "so no kissing or nothing. [I'm] [j]ust bringing you . . . pie." During their prior online conversations, Deck had repeatedly used the term "pie" as a euphemism for performing oral sex on Amy. Moreover, although Deck stated that he and Amy would not engage in sexual conduct at their first meeting, he also told Amy "I probably won't be able to keep my hands off of you."
On February 18, 2006, Deck drove forty-five minutes to meet Amy at the park near
During his closing argument, the prosecutor argued that Deck was guilty of an attempted lewd act on a child because: (1) if Amy had been a real thirteen-year-old, Deck would have touched her on February 18, 2006, and (2) in light of Deck's express intent to engage in sexual conduct with Amy, "any touching" would have constituted a lewd act under California law.
Throughout his closing argument, the prosecutor discussed his understanding of attempt under California law. The prosecutor's explanation was not a model of clarity, nor was it entirely accurate. The prosecutor first stated,
The prosecutor also stated: "But even if [Deck's] intent was to just meet her, get to know her, break the ice and follow up the next day, the next week, maybe two weekends when mom's gone, again, as long as he took a direct, but ineffectual step towards that goal, that is all I need."
Defense counsel did not object to the prosecutor's closing argument, but instead offered his own explanation of attempt during his closing remarks. Before the jury started its deliberations, the presiding judge correctly instructed the jury concerning the law of attempt, as follows:
(emphasis added).
On direct appeal, Deck argued, among other things, that his conviction should be reversed because the prosecutor misstated the law of attempt in his closing argument. The California Court of Appeal for the Fourth District (Court of Appeal) agreed that the prosecutor was incorrect when he stated: "[E]ven if [Deck's] intent was to just meet [Amy], get to know her, break the ice and follow up the next day, the next week, maybe two weekends when mom's gone, again, as long as he took a direct, but ineffectual step towards that goal, that is all I need." The Court of Appeal further explained that to be guilty of attempt under California law, "the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances."
While the Court of Appeal held that the prosecutor misstated the law of attempt, the Court nevertheless affirmed Deck's conviction. In so doing, the Court of Appeal held that the prosecutor's legal error did not require reversal because the judge correctly instructed the jury. The Court explained: "[W]e presume the jury followed
The majority contends that Deck is entitled to habeas relief, because (1) the prosecutor inadvertently misstated California law in his closing argument, and (2) the majority has "grave doubt" as to whether this misstatement affected the outcome of Deck's trial. But whether the majority has "grave doubt" about whether a trial error was harmless is only relevant if that error amounts to a constitutional violation. See O'Neal v. McAninch, 513 U.S. 432, 435-36, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). When a state court has previously determined that no such constitutional error occurred, a federal court "ha[s] no authority" to disrupt the state court's holding unless the state court's holding is "`contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2151, 183 L.Ed.2d 32 (2012) (per curiam) (quoting 28 U.S.C. § 2254(d)).
The Supreme Court has also emphasized that "an unreasonable application of federal law is different from an incorrect application of federal law." See, e.g., Harrington, 562 U.S. at 101, 131 S.Ct. 770 (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495). "The critical point is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1706-07, 188 L.Ed.2d 698 (2014) (quoting Harrington, 562 U.S. at 102, 131 S.Ct. 770).
Importantly, even if a federal court would grant relief to a § 2254 petitioner under a de novo review, a state court's denial of relief is not necessarily unreasonable. Harrington, 562 U.S. at 101-02, 131 S.Ct. 770. This is so, because "[u]nder § 2254(d), a habeas court must [first] determine what arguments or theories supported or . . . could have supported, the state court's decision," and then "`[t]he only question that matters' . . . [is] whether it is possible [that] fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102, 131 S.Ct. 770 (quoting Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)) (emphasis added).
The majority's opinion rests on its conclusion that a defendant's right to due process of law is violated when the prosecutor misstates the law in his closing argument, even when the judge correctly instructs the jury on the relevant legal principles. While the majority may believe that federal law should protect a criminal defendant from prosecutorial errors of this nature, the Supreme Court has never announced such a rule.
The majority correctly observes that the Supreme Court has stated that prosecutorial misconduct may deny a criminal defendant due process of law. But the only Supreme Court decisions the majority cites for this proposition are Parker, 132 S.Ct. at 2154-55 (holding that § 2254 relief was not proper because the alleged prosecutorial error was not a clearly established
While Parker, Darden, and Caldwell all state that prosecutorial misconduct could render a trial so unfair as to deny a defendant due process of law, in none of these cases did the Supreme Court actually hold that a prosecutor's error denied a criminal defendant due process, nor did the Court establish what type of misconduct would cause a trial error of constitutional magnitude.
Critically, the Supreme Court has never held, nor even suggested, that a defendant's constitutional rights are violated where a prosecutor misstates the law in closing argument, but the trial judge correctly instructs the jury. In fact, the Supreme Court has indicated just the opposite.
The Supreme Court has long held that "[a] jury is presumed to follow" a judge's instructions. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). This is true even when a party provides contrary instructions. For example, in Brown v. Payton, 544 U.S. 133, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005), the prosecutor repeatedly and incorrectly argued to the jury that it could not consider certain mitigating evidence in the penalty phase of the defendant's trial for capital murder. The court failed to provide a corrective instruction, but correctly instructed the jury on the applicable law before deliberations began. Id. at 146-47, 125 S.Ct. 1432. In so doing, the trial court did not instruct the jury that the prosecutor's statements were incorrect. Id. It merely provided a correct explanation of the law, which was inconsistent with the prosecutor's erroneous statements. Id.
The Brown Court (reversing our court, sitting en banc) held that the petitioner was not entitled to relief under § 2254. Although the Supreme Court acknowledged that the trial court "should have [explicitly] advised the jury that it could consider [the mitigating] evidence," it was not unreasonable for the state court to conclude that the jury relied on the judge's correct instructions, rather than on the prosecutor's misstatements. Id. at 146-47, 125 S.Ct. 1432. As in Brown, the state trial court here did not explicitly instruct the jury that the prosecutor was incorrect when he stated that the jury could convict Deck even if it concluded that Deck did not intend to touch Amy for several days or weeks after their initial meeting. Nonetheless, the court offered an instruction that directly contradicted the prosecutor's erroneous explanation, when it explained that a defendant is only guilty of attempt if he "[makes a] direct movement towards the commission of the crime after preparations are made[, by] putt[ing his] plan in motion so that the plan would have been completed if some circumstances outside the plan had not interrupted the attempt."
Despite Brown, the majority concludes that the Supreme Court's broad statements that a prosecutor's comments can render a trial constitutionally infirm grant this court authority to set aside the Court of Appeal's holding that no such error occurred in this case. This conclusion flouts AEDPA's deferential standard.
The majority is correct that under § 2254 even a general rule can be applied in an unreasonable manner. This is so, because "[c]ertain principles are fundamental enough that when new factual permutations
Under the Supreme Court's case law, it will rarely be "so obvious" that a prosecutorial error violated a defendant's due process rights that there could be no "`fairminded disagreement' on the question." White, 134 S.Ct. at 1706-07 (quoting Harrington, 562 U.S. at 102, 131 S.Ct. 770). In Parker, the Supreme Court specifically addressed this issue and warned that because the standard for determining whether prosecutorial error amounts to a constitutional error "is a very general one . . . [we must give state] courts more leeway. . . in reaching outcomes in case-by-case determinations [concerning prosecutorial conduct]." 132 S.Ct. at 2155 (internal quotation marks omitted); see also Harrington, 562 U.S. at 101, 131 S.Ct. 770 ("The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.").
Here, there is simply no Supreme Court precedent establishing "beyond fairminded disagreement" that Deck's due process rights were violated. The Supreme Court has generally acknowledged that prosecutorial misconduct may, under some circumstances, amount to a due process violation. But the Court has never suggested that a prosecutor's inadvertent misstatement of state law creates such a circumstance, particularly where the judge later provides the jury with a correct explanation of the law. For this reason, the Court of Appeal's holding that the prosecutor's erroneous statements of law did not violate Deck's constitutional rights is not "an unreasonable application of . . . clearly established law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d).
Not only does the majority grant habeas relief based on a new constitutional rule that it announces today, but it compounds its error by rejecting the Court of Appeal's reasonable conclusion that any prosecutorial error was not prejudicial. This holding relies on an interpretation of the facts that is tenuous at best.
It is well-settled law that "[a] jury is presumed to follow . . . [and] is [also] presumed to understand" a judge's instructions. Weeks, 528 U.S. at 234, 120 S.Ct. 727. Here, it is undisputed that the presiding judge correctly instructed the jury that a defendant is only guilty of attempt if he "[makes a] direct movement towards the commission of the crime after preparations are made[, by] putt[ing his] plan in motion so that the plan would have been completed if some circumstances outside the plan had not interrupted the attempt." In order to overcome the presumption that the jury understood and followed this instruction, and to show that the prosecutor's statements were prejudicial, the majority adopts a strained interpretation of the record. With respect, the majority's interpretation is neither persuasive nor consistent with the scope of AEDPA review.
According to the majority, the jury's unanswered question proves that (1) despite the judge's correct instruction, the jury believed the prosecutor's conflicting statement that it could convict Deck even if it found that Deck did not intend to touch Amy for several days or weeks after their initial meeting, and (2) the jury convicted Deck on these grounds. In my view, the majority's reading is unfounded and does nothing to overcome the presumption that a jury understands and follows a judge's instructions. Id.
Inchoate offenses are undoubtedly confusing to a lay jury. Recognizing this potential for confusion, the fairest interpretation of the jury's question is a simple request for confirmation that a defendant may be guilty under the law of attempt even if he does not complete a substantive offensive—"only attempt[s] to put it in play." Contrary to the majority's reading, nothing about the jury's note indicates that the jury believed that Deck could be guilty of attempt even if he did not intend to touch Amy for several days or weeks following their initial meeting. Rather, the note focuses on what actions one must take (i.e., what he must "do") to be guilty of attempt.
The majority points to no other record evidence indicating that the jury relied on the prosecutor's erroneous statements, rather than on the judge's correct explanation of the law. Thus, I find no reason to believe that these statements were prejudicial. Moreover, the record certainly does not show that in reaching this same conclusion, the Court of Appeal acted unreasonably or even erroneously. As the Supreme Court's recent decision in Davis reminds us, and as the majority acknowledges, "a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable." 135 S.Ct. at 2199 (2015) (quoting Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (emphasis in original)). Deck "must show that the state court's decision to reject his claim `was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.'" Id. (quoting Harrington, 562 U.S. at 103, 131 S.Ct. 770). The majority's conclusion that "the [prosecutor's] rebuttal argument may have seriously misled the jury" does not support a determination that the state court's decision to reject Deck's claim was so lacking in justification that no fairminded jurist could have adopted the state court's assessment that it did not.
Relief under § 2254(d) is appropriate only where the state court's holding is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). The Supreme Court has specifically warned our court that, "[b]y framing [Supreme Court] precedents at [too] high [a] level of generality, [we] could transform even the most imaginative extension of existing case law into `clearly established Federal law, as determined by the Supreme Court' . . . [, which] would defeat the substantial deference that AEDPA requires
Cash v. Maxwell, ___ U.S. ___, 132 S.Ct. 611, 616-17, 181 L.Ed.2d 785 (2012) (Scalia, J., dissenting from the denial of certiorari).
