Keith Ford v. Suzanne Peery ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH UNDRAY FORD, No. 18-15498
Petitioner-Appellant,
D.C. No.
v. 2:15-cv-02463-
MCE-GGH
SUZANNE M. PEERY, Warden,
Respondent-Appellee. ORDER AND
OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted January 22, 2020
San Francisco, California
Filed June 8, 2021
Before: William A. Fletcher and Ryan D. Nelson, Circuit
Judges, and Donald W. Molloy,* District Judge.
Order;
Opinion by Judge W. Fletcher;
Partial Concurrence and Partial Dissent by Judge R. Nelson
*
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
2 FORD V. PEERY
SUMMARY**
Habeas Corpus
The panel filed (1) an order granting Warden Suzanne
Peery’s petition for panel rehearing and denying as moot
Peery’s petition for rehearing en banc, (2) a superseding
opinion affirming the district court’s denial of Keith Undray
Ford’s habeas corpus petition challenging his California
conviction for first-degree murder, and (3) a partial
dissent/concurrence.
In the superseding opinion, the panel granted Ford’s
motion to expand the Certificate of Appealability as to his
claim that the prosecutor’s statements during closing
argument that the “presumption of innocence is over” and
Ford “was not presumed innocent anymore” violated due
process under Darden v. Wainwright, 477 U.S. 168 (1986).
Because the California Court of Appeal assumed without
deciding that the prosecutor misstated the law, there was no
state-court decision to which the panel could defer on this
point. The panel wrote that even if there were a state-court
decision holding that prosecutor did not misstate the law, the
panel would conclude that such a holding would have been
unreasonable because the prosecutor misstated clear and
long-standing federal law as articulated in a number of
Supreme Court decisions.
As to prejudice, the panel observed that the Court of
Appeal applied the functional equivalent of the Darden
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FORD V. PEERY 3
harmlessness test in holding that the prosecutor’s statement
was harmless. The panel was required to give deference to
that decision because a determination of prejudice constitutes
an “adjudication on the merits” for AEDPA purposes. Even
with AEDPA deference, the panel viewed this as a close case.
The panel held, however, that because there was substantial
evidence of guilt, a reasonable jurist could have concluded
that there was no reasonable probability that, in the absence
of the prosecutor’s statements that the presumption of
innocence was “over,” the jury would have reached a
different conclusion.
In a claim certified for appeal by the district court, Ford
asserted that the jury found him guilty under an aiding-and-
abetting theory that was neither charged nor argued to the
jury, in violation of due process under Dunn v. United States,
442 U.S. 100 (1979). The panel wrote that the apparent
inconsistency between the jury’s guilty verdict on the murder
charge and its inability to decide on three firearm
enhancements is not a reason to set aside the guilty verdict.
The panel concluded that the Court of Appeal did not err,
much less unreasonably apply clearly established federal law,
by denying Ford’s claim under Dunn.
Judge R. Nelson dissented in part and concurred in the
judgment. He would deny the Certificate of Appealability
because Ford has not made a substantial showing that the
prosecutor’s statements, when viewed in context, caused the
denial of a constitutional right. He wrote that the majority
identifies no Supreme Court precedent clearly establishing
that the prosecutor’s statements in context were a
constitutional violation.
4 FORD V. PEERY
COUNSEL
Barry Morris (argued), Walnut Creek, California, for
Petitioner-Appellant.
Kristin Liska (argued), Associate Deputy Solicitor General;
Jill M. Thayer, Deputy Attorney General; Peggy S. Ruffra,
Supervising Deputy Attorney General; Jeffrey M. Laurence,
Senior Assistant Attorney General; Lance E. Winters, Chief
Assistant Attorney General; Xavier Becerra, Attorney
General; Attorney General’s Office, San Francisco,
California; for Respondent-Appellee.
ORDER
Respondent-Appellee filed a petition for panel rehearing
or rehearing en banc on December 11, 2020 (Dkt. Entry 74).
We GRANT Respondent-Appellee’s petition for panel
rehearing. The opinion and dissent filed on September 28,
2020, and reported at Ford v. Peery, 976 F.3d 1031 (9th Cir.
2020), are withdrawn. Because we grant the petition for
panel rehearing and withdraw our prior disposition,
Respondent-Appellee’s petition for rehearing en banc is
moot. A superseding opinion and partial dissent/concurrence
are filed concurrently with this order. Further petitions for
rehearing or rehearing en banc may be filed.
FORD V. PEERY 5
OPINION
W. FLETCHER, Circuit Judge:
In August 2010, Ruben Martinez was shot and killed in
Vallejo, California. Keith Ford was charged with first degree
murder with three firearm enhancements. Ford was tried in
the California Superior Court for Solano County in August
2012.
During closing argument, at the end of his rebuttal, the
prosecutor told the jury that the presumption of innocence no
longer applied. He said:
This idea of this presumption of innocence is
over. Mr. Ford had a fair trial. We were here
for three weeks where . . . he gets to cross-
examine witnesses; also an opportunity to
present evidence information through his
lawyer. He had a fair trial. This system is not
perfect, but he had a fair opportunity and a
fair trial. He’s not presumed innocent
anymore.
(Emphases added.) The defense attorney objected, “That
misstates the law.” The court overruled the objection. The
prosecutor resumed, “And so we’re past that point.” After
four days of deliberations, the jury returned a verdict finding
Ford guilty of first-degree murder.
After exhausting his state-court remedies, Ford sought
federal habeas relief under 28 U.S.C. § 2254. The district
court denied relief. On appeal to us, Ford claims: (1) that the
prosecutor’s statements during closing argument misled the
6 FORD V. PEERY
jury, in violation of due process under Darden v. Wainwright,
477 U.S. 168 (1986); and (2) that the jury convicted on a
theory that was not presented, in violation of due process
under Dunn v. United States, 442 U.S. 100 (1979).
We previously issued an opinion reversing the district
court and directing that court to grant habeas corpus relief to
Ford. Ford v. Peery, 976 F.3d 1032 (9th Cir. 2020). We now
grant Peery’s petition for panel rehearing. In this amended
opinion, we affirm the district court.
I. The Trial
A. Summary of Evidence Presented
On August 7, 2010, a Saturday evening, Ruben Martinez
was killed in his SUV in front of his girlfriend’s house on a
short block of Beach Street between Benicia Road and
Central Avenue in Vallejo, California. At about 10:00 p.m.,
Martinez had driven his girlfriend Jessica Blanco home so she
could use the bathroom, check movie times, and get her
jacket. Just before Martinez turned left onto Beach Street
from Benicia Road, a white car ahead of them made a U-turn
and went back past them the other way on Benicia Road.
Blanco later testified at trial that she had not been able to see
anyone in the car and that she could not identify the make or
model of the car.
When they arrived at her house, Blanco went inside while
Martinez stayed in his SUV with the motor still running.
Martinez had washed the SUV earlier in the day. Blanco
testified at trial that a few minutes after walking into the
house, she heard a loud popping noise and the revving of an
engine. She “heard a screeching noise, tires peeling, gravel.”
FORD V. PEERY 7
Blanco went outside and saw that Martinez’s SUV had
crashed into a neighbor’s garage down the street.
A few minutes before Martinez was shot, Bethel Johnson
(“Johnson”) and two of her children arrived at their house
across the street from Blanco’s house. When Johnson got out
of her car, she saw Martinez sitting in his SUV with the
motor running and headlights on, and with the driver’s side
window rolled up. Johnson testified that she could see
through the tinted window that Martinez was looking at his
lighted cell phone. She testified that there was a party on
Beach Street at a black motorcycle club about half a block
away on the other side of Benicia Road. There was a party at
the club “almost every Saturday that month.” Johnson
testified that three young black men were walking up Beach
Street toward the party. Two of them were “maybe 16, 17, 18
years old,” and the other was “much older,” “19, 21. Between
there.” Johnson testified that the older man was
“somewhere” between 5'6" and 5'9", that he was wearing a
dark hooded sweatshirt, and that he had dreads.
Johnson’s daughter, Tenley Johnson (“Tenley”), got out
of the back seat on the passenger side with the family
Rottweiler on a leash. Johnson testified that the dog charged
the man she had described as older. She called to Tenley,
“Control your dog.” Johnson testified that the man “said
something like, ‘Hi girly,’ and then kind of like turned around
away from the dog” and walked in the opposite direction
toward Central Avenue, away from the party. She testified
that she saw no weapons, and that the man said nothing
threatening to Tenley. Between two and three minutes after
getting into her house, Johnson heard what sounded like a
shot and broken glass. Johnson went outside to check on her
8 FORD V. PEERY
car. She found her own car intact and saw no one on the
street.
Tenley testified that she, too, had seen Martinez’s cell
phone light through the window of the SUV. She testified
that when she got out of the car, she saw three young black
men walking from Central Avenue toward the party on
Benicia Road. She described them to a police officer that
night as “teenagers.” Tenley said her dog “started barking
and . . . pulling me.” The dog pulled her toward a man with
“short hair.” She said, “I couldn’t really see the face. It was
dark.” She testified that the man was “skinny.” Tenley is
5'3". She described the man as taller than she was and shorter
than a 6'0" police officer who interviewed her. Tenley
testified that the man was wearing a blue jacket with one or
more white stripes “on the sleeves.” She said it was “like a
track jacket” and that it did not cover his head. One of the
other men had dreads. She did not see any of the men’s
faces. When later shown six photographs, including a
photograph of Ford, Tenley did not identify Ford as one of
the three “teenagers” she had seen that night.
Another neighbor, Moises Cervantes, was walking out of
his house on Beach Street. His house was between Blanco’s
house and Central Avenue. Cervantes heard a “pop” and saw
Martinez’s SUV coming toward him. After the SUV crashed,
Cervantes looked up and down the street and saw no one.
Martinez was killed with a single shot. His foot was
pressed on the gas pedal, causing the SUV to accelerate down
the street until it crashed into the neighbor’s garage. The
engine continued to run, and the rear wheels to spin, even
after the SUV came to a stop. Martinez’s cell phone was
found on the floorboard of the front passenger seat. The
FORD V. PEERY 9
driver’s side window was intact and about “a quarter of the
way down.” The other windows on the driver’s side were
closed and intact. A photograph introduced into evidence
shows two rear side windows on the passenger side that were
shattered. At least one of the windows had been broken by
first responders.
Five days later, on August 12, two Vallejo detectives
lawfully stopped Keith Ford. Ford was twenty-three years
old. He is black, is 5'8" tall, and weighs 165 pounds. At the
time of the stop, he had short hair. He was driving a white
Oldsmobile sedan. The detectives found Ford’s cell phone
inside his car and discovered six additional cell phones in the
center console.
Ford was read his Miranda rights. One of the detectives,
Les Bottomley, testified that Ford said that he had “bought
[the cell phones] stolen off the street.” Later in the same
interview, however, Ford told Bottomley he did not know
whether they had been stolen. Ford told Bottomley that he
was right-handed. Bottomley asked Ford where he had been
on the night of August 7. Ford answered that he “was at his
mother’s home and at that time would have been in bed.”
Bottomley testified that Ford’s mother’s house is about three
and half miles from Blanco’s neighborhood. Bottomley did
not ask Ford about Martinez’s murder.
When Ford was stopped, he had a jacket in his car.
Detective Bottomley testified that he later showed the jacket
to Tenley. Tenley told him that it was not the jacket she had
seen on the young man with the short hair on August 7.
Ford was arrested on September 26 and charged with
having a concealed firearm in his vehicle on that date. It was
10 FORD V. PEERY
stipulated to the jury that the firearm was unrelated to
Martinez’s murder. Ford was held on the charge in the
Solano County Jail until December 14. On December 13,
Detective Bottomley interviewed Ford again. He asked Ford
if he knew Martinez. Bottomley testified that Ford said “he
did not think he did.” Ford repeated that he had been at his
mother’s house on the night of August 7 and had spent the
night there. Bottomley told Ford that his palm print had been
found on Martinez’s SUV. Ford replied, “That don’t mean
nothing. That just mean I came in contact with the vehicle at
one time or another.”
While Ford was in jail on the firearm charge, he spoke to
his girlfriend on the telephone. The call was recorded. Ford
said:
[L]uckily I ain’t in here for murder, that’s all
I keep thinking about . . . oh well I wish it
didn’t have to happen . . . I just [wish] I was at
home . . . I know I gotta deal with my
(unintelligible) it’s too late for all that . . . to
be wishing I was at home . . . See I’m
disappointed in myself. But [expletive] that’s
what happens when you carry a gun. Ain’t
nothin good gonna come of it. And I know
this and [expletive] still happen, cause I tell
other people the only thing you gonna get out
of a gun is you gonna throw down with it or
you gonna shoot somebody with it. And I tell
everybody that and look at my [expletive].
A recording of the call was played for the jury.
FORD V. PEERY 11
Several months after the murder, the following message
appeared on Ford’s Facebook page, directed at someone who
had accused Ford of shooting him:
I heard through the grapevine you was
looking for the guy. Let me know something.
And since you think I popped you, check this
out. First off, I don’t [expletive] with the
Vistas. Second off, I am too good of a shooter
to hit a [expletive] that many times and not
knock they [expletive] down. Last, when you
getting shot, I was on Fifth buying some syrup
off Jigs. Plus, I don’t even [expletive] with
[expletive], so ain’t nobody talked to me since
I got out of jail last. Real killers move in
silence. And would I brag on a job I didn’t
even complete? [Expletive] knocking
[expletive] down. I don’t need credit for an
attempt, so take that how you want to.
The message was read to the jury.
The prosecution presented testimony from four fingerprint
analysts about a partial latent left palm print found on
Martinez’s SUV. Niki Zamora of the San Mateo County
Forensics Laboratory testified that she examined the SUV on
August 11. She discovered the latent print on the outside of
the driver’s door, just below the window. The exterior of the
vehicle was “rather dirty,” with dirt and a sticky white
substance on the door where she found the print. Fire
extinguishers had been used on the SUV after the crash.
Zamora testified that she cleaned off only some of the “dirt
and debris” before “dusting” and taking her “first lift” of the
print. She did not indicate on the “fingerprint card” that the
12 FORD V. PEERY
area from which the print was lifted “had debris on it.”
Zamora was not “certified as a crime scene processor”
because she “hadn’t had enough experience yet.”
Frankie Franck, a certified latent print examiner, matched
Zamora’s “first lift” to Ford’s palm print. Franck compared
the latent print to “several” electronically taken prints (“Live
Scan prints”) that he had been given, including one from Ford
taken in October 2009 in Butte County, California. Franck
testified that the latent print obtained by Zamora “was not of
the best quality,” and that it covered “probably 30 percent” of
the total palm. Despite the quality of the latent print, and
despite the fact that it was only a partial print, Franck testified
that he was certain of the match—“[a]s certain as I am sitting
here.”
Zamora then confirmed Franck’s match. She conceded
that she had not followed the lab’s normal protocol, which
required that a confirming print analyst “not, in any way, [be]
associated with the work that . . . had [been] done.” Zamora
was, of course, directly associated with that work, for she had
lifted the latent print from the SUV. Zamora was not certified
as a latent print examiner. She had taken the certification test
and was awaiting the result.
Darrell Klasey, a certified latent print examiner at the
Solano County Sheriff’s Office, took a rolled ink print of
Ford’s hands in May 2011. Klasey compared the ink print of
Ford’s left palm to the Live Scan print that Franck had been
given. Klasey concluded that the ink print and the Live Scan
print were from the same person. Cross-examination
revealed Klasey’s questionable performance at a previous
agency.
FORD V. PEERY 13
Lynne Lazzari, a latent fingerprint analyst at the Solano
County Sheriff’s Office, confirmed Klasey’s conclusion. Her
analysis was based only on the two prints that Klasey had
given her (Ford’s ink print and the Live Scan print analyzed
by Franck), and she knew that Klasey had already concluded
that they matched. Lazzari testified, “I did my own
independent study and came up with why it was the same
person.” She testified that she “more or less” followed a
standard method for comparing prints. When questioned
about the standard method, which requires examining the
unknown print before the known print, she responded that she
compared the prints side by side: “Well, that’s why I said
‘more or less.’ I do it my way.” When asked whether her
method had “ever been tested or validated for accuracy,” she
responded, “No.” Lazzari had never taken the test to be
certified as a latent print examiner.
There was also testimony about the condition of
Martinez’s SUV after it crashed into the garage. As noted
above, Zamora had examined the SUV on August 11, 2010.
She testified that the driver’s side window was intact and was
“partially down.” Detective Bottomley, who had been at the
crime scene on the night of the murder, had earlier testified
that the driver’s side window was intact and was “about a
quarter of the way down.” According to the prosecution’s
crime scene reconstructionist, the driver’s side window was
1.2 feet open, and a 5'8" individual could stand by the SUV
and reach through the window without contortion. The
prosecutor asked whether there was a “[l]arge enough space
to put a hand in.” Bottomley had answered, “Absolutely.”
Zamora testified that the other driver’s side windows were
intact but that the “two rear passenger side windows” were
“shattered,” with “[n]o glass there.” Photographs of the SUV,
supporting Zamora’s testimony, were shown to the jury.
14 FORD V. PEERY
Zamora testified that there were no bullet holes “either inside
. . . or outside” the SUV.
Finally, Susan Hogan, M.D., a forensic pathologist,
testified about the bullet wound and the manner of shooting.
She testified that Martinez was killed by a single shot to the
back left side of his head. The bullet entered about an inch
and a half from the top of his head and two inches left from
the posterior (back) midline. It traveled downward, forward,
and to the right, coming to rest in the soft tissue of the right
side of the neck. Dr. Hogan testified that death was
“[v]irtually instantaneous.” She testified that there was no
soot or “stippling” at or near the entry point, which meant that
the shot was fired from “at least three feet away.”
Defense counsel presented evidence that other than a brief
conversation on the night of the murder, law enforcement did
not identify or contact anyone at the motorcycle party down
the street. Law enforcement collected license plate numbers
of all of the vehicles on the street, but did not follow up on
any of them. Law enforcement never showed Blanco a
picture of Ford’s white Oldsmobile to determine whether it
was the car she had seen on the night of the murder. No one
reviewed the contents of the stolen cell phones recovered
from Ford’s car. Though one witness reported hearing
multiple shots, the only bullet found was the one that killed
Martinez. No gun or shell casings were ever found. There
was gunshot residue on the inside of the driver’s side door,
but there was no residue on the window seal of the door or on
Martinez’s clothes. The only DNA found at the scene
belonged to Martinez.
FORD V. PEERY 15
B. Attorneys’ Arguments
In his closing argument, the prosecutor contended that
Martinez’s murder was “a robbery gone bad.” His theory was
that Ford had put his left hand on the outside of the driver’s
side door, had reached through the partially opened driver’s
window with his right hand, and had shot Martinez in the
head:
There is compelling evidence in this case, . . .
and that would be the defendant’s palm print
on the victim’s car on his driver’s door, right
in the position where a person, a right-handed
person with a firearm in their right hand,
would have shot and killed the victim. . . . No
unusual contortion would have to take place
for a person of 5'8" to stick their hand in there
and fire.
The prosecutor further argued that Ford’s recorded telephone
conversation with his girlfriend and his Facebook post
supported his contention that Ford shot Martinez.
The prosecutor did not try to reconcile his contention that
Ford had reached through the driver’s side window and shot
Martinez as he sat in the driver’s seat with Dr. Hogan’s
testimony, which required the gun to have been “at least”
three feet away. The prosecutor also did not try to reconcile
his contention with Johnson’s testimony that she had heard
the sound of a shot and broken glass with the photograph of
the SUV showing that two rear side passenger windows had
been shattered.
16 FORD V. PEERY
In her responsive closing argument, Ford’s attorney
contended that the fingerprint identification was unreliable.
She emphasized the poor quality of the latent palm print lifted
from the SUV by Zamora and contended that the unqualified
fingerprint analysts were not to be trusted. She contended
that in his telephone conversation with his girlfriend, Ford
was “talking about the fact that he’s in custody for a gun and
thank God, thank God he didn’t kill anyone.” She
characterized Ford’s Facebook post as “talking smack to
someone behind a computer screen.”
At the end of his rebuttal closing argument, the prosecutor
told the jury:
This idea of this presumption of innocence is
over. Mr. Ford had a fair trial. We were here
for three weeks where . . . he gets to cross-
examine witnesses; also an opportunity to
present information through his lawyer. He
had a fair trial. This system is not perfect, but
he had a fair opportunity and a fair trial. He’s
not presumed innocent anymore.
(Emphases added.) Ford’s attorney objected, “That misstates
the law.” The court held a sidebar. The court then said in
front of the jury, “All right. The objection is overruled.” The
prosecutor resumed, “And so we’re past that point.” The jury
began its deliberations shortly thereafter, on the same day.
C. Jury Deliberations
The jury was instructed on the elements of the charged
crimes of murder and felony murder. The jury was further
FORD V. PEERY 17
instructed on charged enhancements based on the use of a
firearm.
On the second day of deliberations, the jury sent out a
written question: “If someone believes that the defendant was
present at the time of the shooting and was an active
participant in the attempted robbery, but was not the actual
shooter, does that imply guilt of either the first or second-
degree murder charge?” The court commented to the
attorneys, “It’s certainly an unusual question, given there was
really no one [who] argued that there was someone else while
the defendant was present.” The prosecutor suggested the
question might have reflected the fact that two other people
had been described in the testimony, “although I didn’t even
make any arguments about them at all in my closing or that
they had any involvement.” With the agreement of both
counsel, the court simply referred the jury to the instructions
already given. The jury also requested a readback of
Johnson’s testimony. On the fourth day of deliberations,
Friday, August 24, the jury reported that they were
“hopelessly deadlocked,” with one juror holding out for
acquittal. After taking testimony from jury members
individually, the court sent them back to deliberate further.
The following Tuesday, August 28, the jury returned a
unanimous verdict that Ford was guilty of first-degree
murder. The jury reported that they were “hopelessly
deadlocked” on the three firearm enhancements. The court
inquired and learned that the final vote on the first
enhancement—“personal use of a firearm during the
commission of the crime”—had been seven to five. The
court declared a mistrial as to all three firearm enhancements.
18 FORD V. PEERY
II. Post-Trial Procedural History
On direct appeal, the California Court of Appeal affirmed
Ford’s conviction.
On the presumption-of-innocence issue, the Court of
Appeal identified a conflict among the Courts of Appeal.
Several Courts of Appeal had held that there was no
prosecutorial misconduct when the prosecutor told the jury
that the presumption of innocence no longer applied once
sufficient evidence of guilt had been presented. For example,
in People v. Goldberg, 161 Cal. App. 3d 170, 189 (1984), the
court affirmed the conviction and found no prosecutorial
misconduct in a case in which the prosecutor had said in
closing argument, “[O]nce you’ve heard this case, once the
case has been proven to you—and that’s the stage we’re at
now—the case has been proved to you beyond any reasonable
doubt. I mean, it’s overwhelming. There is no more
presumption of innocence.” (First emphasis added.) But a
different Court of Appeal later reached a contrary conclusion.
In People v. Dowdell, 227 Cal. App. 4th 1388, 1407 (2014),
the prosecutor twice told the jury during closing argument, in
light of the strength of the State’s evidence, that “[t]he
presumption of innocence is over.” The court in Dowdell
distinguished Goldberg and ruled that defense counsel should
have objected because the prosecutor misstated the law, but
it held, on the record before it, that the error was harmless.
The Court of Appeal declined to reach the question
whether the prosecutor had misstated the law in Ford’s case.
Assuming without deciding that the prosecutor had done so,
the court held that any error was harmless: “We need not
resolve any conflict between Goldberg [and other cases] on
the one hand, and Dowdell on the other because we conclude
FORD V. PEERY 19
any assumed error is harmless under either the state ([People
v.] Watson, [(1956)] 46 Cal.2d 818[, 836]) or federal
constitutional standard (see Chapman v. California (1967)
386 U.S. 18, 24).”
On the jury-instruction issue, the Court of Appeal held
that the jury’s verdict did not show that it relied on a legal
theory that had not been presented. It recognized the
apparent conflict between the jury’s verdict that Ford was
guilty of first-degree murder and its inability to decide
whether he had used a firearm. But it concluded that
“disposition of one count [has] no bearing upon the verdict
with respect to other counts, regardless of what the evidence
may have been. Each count must stand on its own merit.”
The California Supreme Court denied Ford’s petition for
review in a one-line order. Ford then sought state habeas in
California Superior Court. The Superior Court did not reach
the merits of the claims at issue here because they had been
raised and rejected on direct appeal.
Ford sought federal habeas relief under 28 U.S.C. § 2254.
He raised several claims, all of which were rejected by the
district court. He appeals the denial of two claims: (1) That
the prosecutor’s statements during closing argument that the
“presumption of innocence is over” and Ford was “not
presumed innocent anymore” violated due process under
Darden1; and (2) That the jury found Ford guilty under a
theory not presented, in violation of due process under Dunn.
We discuss the claims in turn.
1
This claim was uncertified on appeal. We now GRANT Ford’s
motion to expand the Certificate of Appealability as to that claim.
20 FORD V. PEERY
III. Standard of Review
We review de novo a district court’s denial of a petition
for a writ of habeas corpus. Moses v. Payne, 555 F.3d 742,
750 (9th Cir. 2009). In order to obtain federal habeas relief
from a state court conviction, a petitioner must show that the
state court proceedings “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States; or . . . resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529
U.S. 362, 402–03 (2000). We defer to the last reasoned
decision of the state court. Ylst v. Nunnemaker, 501 U.S. 797,
803 (1991); Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir.
2016). Here, that is the decision of the California Court of
Appeal on direct appeal.
IV. Discussion
A. Due Process Violation under Darden
The first question is whether the prosecutor’s repeated
statement during closing argument that the presumption of
innocence was “over” was misconduct in violation of due
process under Darden. Prosecutorial misconduct includes
misstatements of law. See Deck v. Jenkins, 814 F.3d 954, 985
(9th Cir. 2016) (finding Darden error where “the prosecutor
gave incorrect direction to the jury about an element of
California law under which Deck was convicted”). Improper
prosecutorial statements violate due process if they “so
infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden, 477 U.S. at 181
FORD V. PEERY 21
(citation omitted). Prosecutorial misconduct within the
meaning of Darden does not require improper motive on the
part of the prosecutor; it requires only an improper statement.
But such misconduct “rises to the level of Darden error only
if there is a reasonable probability that it rendered the trial
fundamentally unfair.” Deck, 814 F.3d at 985.
1. Misstatement of the Law
Because the California Court of Appeal assumed without
deciding that the prosecutor misstated the law, there is no
state-court decision to which we can defer on this point.
However, even if there were a state-court decision holding
that the prosecutor did not misstate the law, we would
conclude that such a holding would have been unreasonable.
In stating that the presumption of innocence was “over,” the
prosecutor misstated clear and long-standing federal law as
articulated in a number of Supreme Court decisions. A jury
must evaluate the evidence based on the presumption that the
defendant is innocent. If the jury concludes beyond a
reasonable doubt that the defendant is guilty, then—and only
then—does the presumption disappear.
The presumption of innocence is “the undoubted law,
axiomatic and elementary.” Coffin v. United States, 156 U.S.
432, 453 (1895). The presumption of innocence is “vital and
fundamental.” Id. at 460. It is “a basic component of a fair
trial under our system of criminal justice.” Estelle v.
Williams, 425 U.S. 501, 503 (1976). “[I]ts enforcement lies
at the foundation of the administration of our criminal law.”
Coffin, 156 U.S. at 453; see also Reed v. Ross, 468 U.S. 1,
4–5 (1984).
22 FORD V. PEERY
Criminal defendants lose the presumption of innocence
only once they have been convicted. See, e.g., Herrera v.
Collins, 506 U.S. 390, 399 (1993) (“Once a defendant has
been afforded a fair trial and convicted of the offense for
which he was charged, the presumption of innocence
disappears.”) (emphasis added); Delo v. Lashley, 507 U.S.
272, 278 (1993) (“Once the defendant has been convicted
fairly in the guilt phase of [a capital] trial, the presumption of
innocence disappears.”) (emphasis added); Betterman v.
Montana, 136 S. Ct. 1609, 1618 (2016) (a conviction
“terminates the presumption of innocence”).
2. Prejudice
A violation of due process under Darden requires more
than a prosecutorial misstatement. There must be “a
reasonable probability” that the misstatement “rendered the
trial fundamentally unfair.” Deck, 814 F.3d at 985. “In
essence, what Darden requires reviewing courts to consider
appears to be equivalent to evaluating whether there was a
‘reasonable probability’ of a different result.” Hein v.
Sullivan, 601 F.3d 897, 914–15 (9th Cir. 2010); see also
Deck, 814 F.3d at 979.
On the assumption that the prosecutor misstated the law,
the Court of Appeal held that the prosecutor’s misstatement
was harmless under either of two standards. It wrote: “[A]ny
assumed error is harmless under either the state ([People v.]
Watson, [(1956)] 46 Cal.2d 818[, 836]) or federal
constitutional standard (see Chapman v. California (1967)
386 U.S. 18, 24).” The Chapman standard for determining
harmlessness is different from the Darden standard, so we put
it to one side. But the Watson standard is indistinguishable
from the Darden “reasonable probability” standard. The
FORD V. PEERY 23
California Supreme Court wrote in Watson: “[A] miscarriage
of justice should be declared only when the court, after an
examination of the entire cause, including the evidence, is of
the opinion that it is reasonably probable that a result more
favorable to the appealing party would have been reached in
the absence of the error.” People v. Watson, 46 Cal. 2d 818,
836 (1956) (quotation marks omitted) (emphasis added). We
recognize, of course, that in applying Watson the Court of
Appeal was applying a state-law rather than a federal-law
standard of harmlessness, but the Watson test is in haec verba
the same as the Darden test. We therefore conclude that the
Court of Appeal applied the functional equivalent of the
Darden harmlessness test in holding that the prosecutor’s
statement was harmless.
If we were to decide harmlessness de novo under Darden,
we would conclude that there was a reasonable probability of
a different outcome absent the prosecutor’s misstatement of
the law. The evidence against Ford was circumstantial,
incomplete, and to some degree in conflict. The jury took
four days to reach a verdict and did so only after having
reported to the judge that it was “hopelessly deadlocked.”
Finally, the jury’s verdict was logically inconsistent—an
almost sure sign of a compromise verdict—finding Ford
guilty of murder but failing to find that he used a firearm in
the commission of the murder. A determination of prejudice
constitutes an “adjudication on the merits” for purposes of
AEDPA deference. See Davis v. Ayala, 576 U.S. 257, 269
(2015) (holding that the state court’s determination of
harmlessness “undoubtedly constitutes an adjudication of
[petitioner’s] constitutional claim ‘on the merits’”). We are
therefore required to give deference to the decision of the
Court of Appeal that the prosecutor’s misstatements were
harmless under the Darden standard. Even with AEDPA
24 FORD V. PEERY
deference, we view this as a close case. But we hold that a
reasonable jurist could have concluded that there was no
reasonable probability that, in the absence of the prosecutor’s
statements that the presumption of innocence was “over,” the
jury would have reached a different conclusion, for there was
substantial evidence of guilt: Ford’s unexplained left palm
print just below the window on the outside of the driver’s side
door; a man matching Ford’s (albeit general) description on
the street next to Martinez’s SUV just before the shooting; the
stolen cell phones in Ford’s car; Ford’s recorded telephone
conversation to his girlfriend while he was in jail (“[L]uckily
I ain’t in here for murder, that’s all I keep thinking about
. . . oh well I wish it didn’t have to happen”); and Ford’s
Facebook post bragging about his shooting prowess.
B. Due Process Violation under Dunn
“To uphold a conviction on a charge that was neither
alleged in an indictment nor presented to a jury at trial
offends the most basic notions of due process.” Dunn, 442
U.S. at 106. Ford contends that he was found guilty on a
charge of aiding and abetting even though no such charge was
made in the indictment, and no such argument was made to
the jury. In support of his contention, Ford points to the
apparent inconsistency in the jury’s decision: On the one
hand, the jury convicted Ford of first degree murder in the
shooting of Martinez. On the other hand, the jury hung on the
three firearm enhancements, unable to decide whether Ford
had used a firearm in committing the murder.
We are willing to assume that on the evidence presented
Ford could have been convicted of an aiding and abetting
crime. But that is not enough to show a violation of due
process, for Ford could equally have been (and was)
FORD V. PEERY 25
convicted of first-degree murder. The apparent inconsistency
between the jury’s guilty verdict on the murder charge and its
inability to decide on the firearm enhancements is not a
reason to set aside its guilty verdict. There is no “rule that
would allow criminal defendants to challenge inconsistent
verdicts on the ground that in their case the verdict was not
the product of lenity, but of some error that worked against
them.” United States v. Powell, 469 U.S. 57, 66, 67 (1984)
(noting also that “a criminal defendant already is afforded
protection against jury irrationality or error by the
independent review of the sufficiency of the evidence
undertaken by the trial and appellate courts.”); see also
Harris v. Rivera, 454 U.S. 339, 345 (1981) (“Inconsistency
in a [jury’s] verdict is not a sufficient reason for setting it
aside.”). Under Powell, the Court of Appeal did not err,
much less unreasonably apply clearly established federal law,
by denying his claim under Dunn.
Conclusion
We conclude that the prosecutor’s repeated statements to
the jury during final argument that the presumption of
innocence no longer applied were misstatements of clearly
established law as articulated by the Supreme Court. We
defer, however, to the state court’s finding, applying the
Darden standard, that there was not a reasonable probability
of a different outcome had the prosecutor not misstated the
law. We also conclude that the state court did not err under
Dunn in upholding the jury’s arguably inconsistent verdict.
We therefore affirm the district court’s denial of relief.
AFFIRMED.
26 FORD V. PEERY
R. NELSON, Circuit Judge, dissenting in part and concurring
in the judgment:
Today is a somber day of justice for Ruben Martinez, an
innocent young man with a full life ahead of him who was
ruthlessly murdered. Petitioner Keith Ford was convicted of
first degree felony murder of Martinez by a jury of his peers.
The majority first held that Ford’s petition for habeas relief
should be granted. On rehearing, the majority reverses
course. As a result, Ford remains legally accountable for
Martinez’s murder.
It is unusual, but not unheard of, for a panel majority to
concede error on rehearing. See Mendez v. Mukasey, 525
F.3d 216 (2d Cir. 2008) (Sotomayor, J.), on reh’g sub nom.
Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) (per curiam).
For a panel majority to publicly recognize and correct its
error requires a healthy dose of judicial humility. Ultimately,
the art of good judging is tethering so closely to the rule of
law and the Constitution that personal beliefs do not dictate
the outcome of any issue or case. That ideal of judging,
simple in theory, can test even veteran judges. But this ideal
reflects the noblest role of an Article III judge. And, by
reversing itself, the majority may avoid yet another reversal
in our misapplication of deference under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). See Shinn v.
Kayer, 141 S. Ct. 517, 522 (2020) (per curiam) (noting the
Supreme Court “has reversed the Ninth Circuit’s application
of AEDPA” in 14 cases in 18 years). I thus concur in the
majority’s judgment to deny Ford’s habeas petition.
But the majority, even in its reversal on rehearing, is only
half noble. I continue to dissent because I would deny the
Certificate of Appealability (“COA”). Ford has not made a
FORD V. PEERY 27
“substantial showing” that the prosecutor’s statements, when
viewed in context, caused “the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The majority identifies no
Supreme Court precedent “clearly establish[ing]” that the
prosecutor’s statements in context were a constitutional
violation. 28 U.S.C. § 2254(d)(1).
No prosecutor should ever state or imply that the
presumption of innocence is over before the jury returns a
guilty verdict. The majority correctly notes the “vital and
fundamental” role the presumption of innocence plays in our
criminal justice system. See Majority at 21 (quoting Coffin
v. United States, 156 U.S. 432, 460 (1895)). But due process
violations under Darden v. Wainwright require more than
such generalities. 477 U.S. 168, 181 (1986). And the
majority still errs on rehearing in failing to grapple with the
context of the prosecutor’s statements and in finding legal
error sufficient to support a due process violation. We should
not have granted the COA merely to affirm the state court’s
harmlessness finding.
Moreover, the majority remains equivocal on the
harmlessness of the prosecutor’s statements, which is
surprising, given the strong evidence tying Ford to the murder
and the context surrounding the prosecutor’s statements.
Under appropriate AEDPA deference—but even under the
majority’s make-believe, hypothetical de novo review—the
state court’s harmlessness finding warrants denial of habeas
relief.
28 FORD V. PEERY
I
Martinez was shot at point blank range in his car in front
of his girlfriend’s house before their date. After a three-week
trial, Ford was convicted of first degree felony murder.
During trial, the jury heard that Martinez had washed his
car just hours before his date and his car was “clean and
shiny.” People v. Ford, No. A137496, 2014 WL 4446166, at
*1 (Cal. Ct. App. Sep. 10, 2014). A fingerprint examiner
testified that after the murder, “a latent palm print on the
driver’s side of the door of Martinez’s SUV, just beneath the
window[,] . . . matched Ford’s left palm print.” Id. at *2.
The examiner “was certain ‘both impressions were made by
the same palm.’” Id. The jury heard Ford’s explanation to
police that his palm print meant that “I came into contact with
the vehicle at one time or another.” Id. The prosecutor’s
theory was that Ford’s left palm print on Martinez’s car, in
the exact location consistent with a right-handed man leaning
into the driver window, particularly where the car had just
been washed, placed Ford at the murder scene.
The jury also heard that a white car was seen driving in
the same direction as Martinez and “made an abrupt U-turn
directly in front of Martinez’s car” moments before Martinez
stopped at his girlfriend’s house and just before Martinez was
murdered. Id. at *1. Ford drove a white car.
The jury also heard that three young African American
men were walking toward Martinez as he waited in his car.
One had short hair cut close to his scalp. Ford is African
American and at the time was 23 years old, had short hair,
and was the approximate height described.
FORD V. PEERY 29
The jury also heard that as Martinez waited, he was on his
cell phone, visible through his car window. A few days after
the murder, Ford was stopped by a detective and six stolen
cell phones were found in the center console of Ford’s car.
Ford told the detective that on the night Martinez was
murdered, Ford was at his mother’s house in Vallejo, about
three miles from where Martinez was shot.
The jury also heard that four months after Martinez was
murdered, Ford was in jail for an unrelated firearm possession
charge. Ford called his girlfriend from jail and said, “‘luckily
I aint in here for murder’” and noted that he knew he should
not carry guns because “‘the only thing you gonna get out of
a gun is you gonna throw down with it or you gonna shoot
somebody with it.’” Id. at *2. Several months after
Martinez’s murder, Ford posted comments on Facebook
about being suspected of a murder and described in detail
how he would conduct a murder.
Before closing arguments, the state trial court orally
instructed the jury about the presumption of innocence and
the government’s burden to prove its case beyond a
reasonable doubt. The jury was instructed to form no opinion
about the case until after jury deliberations begin. And the
jury was instructed to follow the law as detailed in the written
jury instructions and to disregard any of counsels’ comments
that may conflict with the jury instructions.
In closing, the prosecutor repeatedly reminded the jury
that the government bore the burden to prove its case beyond
a reasonable doubt. The prosecutor then walked through the
evidence detailed above. In rebuttal, the prosecutor stated,
“This idea of this presumption of innocence is over. . . . He’s
not presumed innocent anymore.” Id. at *6. This drew an
30 FORD V. PEERY
objection from defense counsel, overruled by the trial court
because the jurors have “been reminded continuously that
they’re not to form or express any opinions until after they
deliberate with their fellow jurors, so I don’t think there’s any
particular harm in that . . . .” The prosecutor then stated,
“And so we’re past that point.” Id.
After closing, the district court provided the jury written
instructions, including properly detailing the presumption of
innocence, which were taken back into the jury room for
deliberations. Defense counsel made no request for any
additional jury instruction on the presumption of innocence.
The jury heard evidence more than enough to support,
beyond a reasonable doubt, Ford’s first degree felony murder
conviction. The California Court of Appeal affirmed Ford’s
conviction on direct appeal, finding that any alleged
prosecutor misconduct was harmless. The California
Supreme Court denied review. The federal magistrate
recommended denial of Ford’s habeas petition and the district
court adopted the magistrate’s recommendation in full.
While the district court certified three questions for appeal, it
did not certify the question on potential prosecutorial
misconduct.
II
The majority holds that the prosecutor’s comments about
the presumption of innocence misstate the law on de novo
review—because the issue was not addressed by the Court of
FORD V. PEERY 31
Appeal.1 Majority at 21. But the prosecutor’s isolated
comments, taken in full context of the closing statements and
jury instructions, were not misconduct that “so infected the
trial with unfairness as to make [Ford’s] conviction a denial
of due process” under Darden, 477 U.S. at 181 (citation
omitted). By cherry-picking and examining the prosecutor’s
comments in isolation, the majority disregards the Supreme
Court’s admonition that “the arguments of counsel . . . must
be judged in the context in which they are made.” Boyde v.
California, 494 U.S. 370, 385 (1990). The majority
misconstrues the prosecutor’s comments rather than
interpreting them in context of his full closing and rebuttal
arguments. In context, the comments do not rise to the level
of prosecutorial misconduct.
“[A] court should not lightly infer that a prosecutor
intend[ed] an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation,
will draw that meaning from the plethora of less damaging
interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637,
647 (1974). The majority reaches its conclusion only by
skewing the evidence and inferences in the light most
favorable to Ford. It thus infers that the jury drew the most
damaging interpretation of the challenged comments, rather
than the more likely, less damaging interpretation. In
context, the prosecutor argued in closing that the government
1
In dictum, the majority posits that “even if there were a state-court
decision holding that the prosecutor did not misstate the law, we would
conclude that such a holding would have been unreasonable.” Majority
at 21. This hypothetical conclusion is dictum, not “germane to the
eventual resolution of the case,” United States v. Johnson, 256 F.3d 895,
914 (9th Cir. 2001) (en banc) (Kozinski, J., concurring), not “well-
reasoned,” Enying Li v. Holder, 738 F.3d 1160, 1164 n.2 (9th Cir. 2013),
and therefore not binding on any future panel.
32 FORD V. PEERY
had met its burden of proving its case beyond a reasonable
doubt, thereby overcoming the presumption of innocence.
His challenged comments were not (as the majority
concludes) inviting the jurors to disregard the presumption of
innocence when they retired to the deliberation room.
The prosecutor made numerous statements supporting the
more reasonable interpretation (still largely ignored by the
majority on rehearing). For instance, the prosecutor
introduced his closing, noting, “I’m going to go back over the
facts of this case and show you why I have proven beyond a
reasonable doubt that the defendant committed murder in this
case . . . .” He hewed closely to this theme, repeating, “I want
to tell you why it is that I have proven to you beyond a
reasonable doubt that the defendant in this case committed an
act that caused the death of Ruben Martinez . . . .” The
prosecutor returned to this refrain repeatedly throughout his
closing, stating the following:
• “Let me tell you . . . why it is that I have proven to
you beyond a reasonable doubt that the defendant is
guilty”;
• “My burden of proof in the case to prove the charge
that Mr. Ford is charged with is proof beyond a
reasonable doubt”;
• “In combination with the other information, that’s
proof beyond a reasonable doubt. . . . I have never
shied away from what my standard of proof is in this
case, but it’s not an impossible standard. It’s proof
beyond a reasonable doubt”;
FORD V. PEERY 33
• “[W]hen you . . . follow all the evidence and you
follow all the law, you’re going to reach the same
conclusion that I asked you to reach at the beginning
of this case that the defendant is guilty of murder”;
and
• “[Y]ou did all make that promise at the beginning and
I will hold you to that promise, if I prove my case
beyond a reasonable doubt, that you would not
hesitate for a second to convict the defendant.”
On rebuttal, the prosecutor reiterated that defense counsel
“doesn’t have to present any evidence. It is my burden of
proof.” He also called the jurors’ attention to the written
instructions they would take with them into the deliberation
room, inviting them to “just read the [reasonable doubt]
instruction itself and . . . look at the instruction and what it
says in particular.”
Finally, just before making the challenged statements, the
prosecutor walked through the evidence and reiterated, “I’ve
provided you with all the information that you need to feel
the abiding conviction in the truth of these charges.” Each of
his points (including the challenged statements) combined to
form an unremarkable overarching argument: the evidence of
defendant’s guilt was so strong that the prosecutor had
successfully proved his case beyond a reasonable doubt and
thus overcame the presumption of innocence.2 The majority
2
By repeatedly emphasizing the government’s burden of proving
guilt “beyond a reasonable doubt,” the prosecutor simultaneously
emphasized it was his burden to overcome the presumption of innocence
to which Ford was entitled. This is because the government’s burden to
prove a defendant’s guilt beyond a reasonable doubt is closely linked with
34 FORD V. PEERY
shows no reasonable likelihood that these statements, taken
together, misled the jurors or caused them to believe the
presumption of innocence terminated before they had reached
a verdict of guilty beyond a reasonable doubt.
Contrast this with the facts in Kentucky v. Whorton, 441
U.S. 786 (1979), where the Supreme Court held the Due
Process Clause does not require a jury instruction on the
presumption of innocence at all. Id. at 789–90. In Whorton,
the jury was instructed that they “could return a verdict of
guilty only if they found beyond a reasonable doubt” that the
defendant was guilty of the acts charged. Id. at 787. This
instruction alone—even without the presumption of
innocence instruction—was deemed constitutionally
sufficient. See id. at 789–90. Here, the trial court exceeded
the standard in Whorton. Not only did the prosecutor
repeatedly emphasize that his burden was to prove Ford’s
guilt beyond a reasonable doubt, see supra at 32–33, the jury
was formally instructed that Ford was entitled to a
presumption of innocence and that this presumption required
proof of guilt beyond a reasonable doubt. Thus, as in
Whorton, weighing the prosecutor’s challenged statements
against “all the instructions [provided] to the jury” and “the
arguments of counsel,” Ford was not “deprived . . . of due
process of law in light of the totality of the circumstances.”
441 U.S. at 789–90.
The surrounding context of the prosecutor’s statements
also explains the trial court’s decision to overrule defense
counsel’s objection to the contested statements. The court
undoubtedly knew the presumption of innocence continued
the presumption of innocence. See Cool v. United States, 409 U.S. 100,
104 (1972); Schultz v. Tilton, 659 F.3d 941, 943 (9th Cir. 2011).
FORD V. PEERY 35
until jury deliberations, understood what the prosecutor
meant, and reasonably determined the comments in context
presented no risk of juror confusion. The court stated
(outside the jury’s presence), in response to counsel’s
objection: “[The jurors have] been reminded continuously
that they’re not to form or express any opinions until after
they deliberate with their fellow jurors, so I don’t think
there’s any particular harm in that . . . .” The court was also
aware the jurors had been explicitly instructed orally on the
presumption of innocence and the written instructions would
be taken with them into jury deliberations.
In short, no reasonable juror would interpret the
prosecutor’s statements, in context, consistent with the
majority’s isolated gloss. Despite indications the jurors were
confused on other issues, there is no suggestion any juror was
confused on the presumption of innocence. Indeed, the jury
acquitted Ford on separate firearm enhancement allegations,
which undermines the majority’s conclusion that the jurors
believed the presumption of innocence was over during the
prosecutor’s closing.
III
The majority also needlessly opines that if it were
“decid[ing] harmlessness de novo under Darden, [it] would
conclude that there was a reasonable probability of a different
outcome absent the prosecutor’s misstatement of the law.”
Majority at 23. Even assuming the prosecutor’s statements
viewed in context rose to the level of a misstatement of
clearly established Supreme Court precedent, the statements
are harmless under any standard. More fundamentally, the
majority has no basis to analyze a hypothetical de novo
review which is contrary to the law. Like the majority’s
36 FORD V. PEERY
separate dictum, see supra at 31 n.1, this dictum is not
germane, not well-reasoned, and thus not binding on any
future panel. In reversing course on harmlessness, the
majority ultimately backs into the correct result. But the
majority’s analysis remains riddled with unnecessary errors.
“[E]ven if the [prosecutor’s] comment[s are] understood
as directing the jury’s attention to inappropriate
considerations,” that does not by itself establish a due process
violation under Darden absent something more to show that
the comments prejudiced the defendant. Parker v. Matthews,
567 U.S. 37, 47 (2012) (per curiam). Courts must consider
“whether the jury was instructed to decide solely on the basis
of the evidence rather than counsel’s arguments, and whether
the state’s case was strong.” Furman v. Wood, 190 F.3d
1002, 1006 (9th Cir. 1999); see also Allen v. Woodford, 395
F.3d 979, 998 (9th Cir. 2005). Here, the state trial court did
not violate due process under Darden because the court’s
instructions eliminated any “reasonable probability that [the
prosecutor’s statements] rendered the trial fundamentally
unfair.” See Deck v. Jenkins, 814 F.3d 954, 985 (9th Cir.
2016).
Before closing arguments, the trial court orally instructed
the jury that the defendant was presumed innocent and the
prosecution had to prove each element of the charged
offenses beyond a reasonable doubt. The court instructed,
“You may not convict the defendant unless the People have
proved his guilt beyond a reasonable doubt.” The court also
instructed the jury to apply the law as explained by the
court’s instructions and disregard any comments or
arguments by counsel that conflicted with the court’s
instructions. Further, the court admonished the jurors that
“[n]othing that the attorneys say is evidence. In their . . .
FORD V. PEERY 37
23closing arguments, the attorneys discuss the case, but their
remarks are not evidence.” The written jury instructions were
taken into the deliberation room.
Ultimately, by dismissing these instructions—both oral
and written—as inadequate, the majority disregards that “we
presume jurors follow the court’s instructions absent
extraordinary situations.” See Tak Sun Tan v. Runnels, 413
F.3d 1101, 1115 (9th Cir. 2005); see also Allen, 395 F.3d at
998 (explaining that although prosecutor’s statement was
misconduct, “given the trial court’s instruction that
statements by counsel were not evidence, and given the
weight of the evidence against him, the prosecutor’s
comments did not deprive Allen of a fair trial”); United States
v. Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993) (holding
the prosecutor’s improper remarks in closing did not
constitute a miscarriage of justice when the court gave a
general instruction that attorneys’ arguments were not
evidence in the case). “[P]rosecutorial misrepresentations . . .
are not to be judged as having the same force as an instruction
from the court.” Boyde, 494 U.S. at 384–85.
In concluding the prosecutor’s statements were not
harmless under a de novo standard of review, the majority
relies in large part on the purported inconsistency between the
jury’s guilty conviction for murder and its divided vote on
one of the firearm enhancements. See Majority at 23. But
assessing the reason for any potential inconsistency is “pure
speculation” because there is no way of knowing whether the
inconsistency was “the product of lenity” for Ford. See
United States v. Powell, 469 U.S. 57, 66 (1984). Nor is the
result necessarily inconsistent, as the jury could have
determined that Ford was involved in a predicate felony in
which Martinez was murdered (as the state charged), but that
38 FORD V. PEERY
Ford may not have pulled the trigger. Ford v. Peery, No.
2:15-cv-2463-MCE-GGH, 2017 WL 527898, at *7 (E.D. Cal.
Feb. 9, 2017), adopted by 2017 WL 11490100 (E.D. Cal. Apr.
20, 2017). Regardless, a potentially inconsistent verdict
provides no support for any error being harmful here, even
under the majority’s hypothetical de novo review.
The majority also focuses on the length of deliberations
and the jury being “hopelessly deadlocked.” Majority at 23.
But the majority’s simplistic discussion of this issue grossly
overstates the deadlock. The deadlock was caused by one
juror. The other 11 were not deadlocked at all; they were
ready to convict. One holdout juror—who eventually voted
to convict—cannot bear the weight the majority would
otherwise give it.
There is no reasonable likelihood the jury misunderstood
the prosecutor’s comments and convicted Ford without
finding guilt beyond a reasonable doubt. Therefore, even if
the de novo standard hypothetically applied (and no judge
contends it does), the prosecutor’s comments would still be
harmless. I disagree that this was “a close case” under
AEDPA deference. Majority at 24.
* * *
On rehearing, I concur in the judgment to affirm the
district court’s denial of habeas relief. Likewise, I agree that
there was no separate due process violation under Dunn v.
United States, 442 U.S. 100 (1979). However, I disagree with
the decision to grant the COA and much of the majority’s
convoluted reasoning.