Keith Ford v. Suzanne Peery ( 2020 )

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. 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 September 28, 2020
Before: William A. Fletcher and Ryan D. Nelson, Circuit
Judges, and Donald W. Molloy,* District Judge.
Opinion by Judge W. Fletcher;
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 reversed the district court’s denial of Keith
Ford’s habeas corpus petition challenging his first-degree
murder conviction, and remanded with instructions to
conditionally grant the writ, in a case in which the prosecutor,
at the end of his closing-argument rebuttal, told the jury that
the presumption of innocence no longer applied.
Because there was no state-court decision to which the
panel could defer in determining whether the prosecutor
misstated federal law and, if so, whether that statement
violated due process under Darden v. Wainwright, 477 U.S.
168 (1986), the panel reviewed Ford’s Darden claim de novo.
The panel held that the prosecutor’s repeated statements,
endorsed by the trial judge, that the presumption of innocence
no longer applied violated due process under Darden. The
panel explained that a holding of a due process violation
under Darden necessarily entails a conclusion that the
prosecutor’s misstatements of the law were prejudicial. The
panel further held that the California Court of Appeal
unreasonably concluded under Chapman v. California, 386
U.S. 18 (1967), that the prosecutor’s misstatements of the law
were harmless beyond a reasonable doubt.
Dissenting, Judge R. Nelson wrote that the majority
ignores the highly deferential standard owed to the California
Court of Appeal’s harmlessness conclusion under AEDPA
**
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
and instead adopts a broad exercise of supervisory power
over a state court’s trial proceedings, inconsistent with the
narrow legal standard for habeas review.
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.
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:
4 FORD V. PEERY
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.”
The jury began deliberating later that day, on Tuesday,
August 21, 2012. On Friday, August 24, the fourth day of
deliberations, the jury reported that it was “hopelessly
deadlocked,” with one juror holding out for acquittal. The
court sent the jury back to deliberate further. The following
Tuesday, August 28, the jury returned a unanimous verdict
that defendant Ford was guilty of first-degree murder. The
jury was still “hopelessly deadlocked” on three firearm
enhancements, including an enhancement for “personal use
of a firearm during the commission of the crime.” The final
vote on the “personal use” enhancement was seven to five.
The court declared a mistrial as to all three firearm
enhancements.
Martinez had been killed with a single shot to his head.
The prosecutor had contended that Ford had shot Martinez.
The prosecutor had never contended, or even suggested, that
anyone other than Ford had fired the shot that killed
Martinez.
FORD V. PEERY 5
After exhausting his state-court remedies, Ford sought
federal habeas relief under 28 U.S.C. § 2254. We answer two
principal questions. First, in overruling the objection to the
prosecutor’s statements that the presumption of innocence no
longer applied did the California Superior Court violate due
process under Darden v. Wainwright, 477 U.S. 168 (1986)?
Second, was the California Court of Appeal objectively
unreasonable in holding that any error was harmless beyond
a reasonable doubt under Chapman v. California, 386 U.S. 18(1967)? We answer “yes” to both questions.
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.”
6 FORD V. PEERY
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
FORD V. PEERY 7
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
8 FORD V. PEERY
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
FORD V. PEERY 9
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.
10 FORD V. PEERY
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 the partial latent 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 a latent partial left palm 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
FORD V. PEERY 11
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.
12 FORD V. PEERY
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.
FORD V. PEERY 13
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.
14 FORD V. PEERY
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 and with the photograph
of the SUV showing that two rear side passenger windows
had been shattered.
FORD V. PEERY 15
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
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
16 FORD V. PEERY
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 as to the firearm enhancements. It 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. It did not learn whether the guilty or not-guilty
votes predominated. The court declared a mistrial as to all
three firearm enhancements.
FORD V. PEERY 17
II. Post-Trial Procedural History
Ford appealed his conviction to a California Court of
Appeal. The court wrote, “According to Ford, the
prosecutor’s comments about the presumption of innocence
misstated the law and deprived him of a fair trial.”
The Court of Appeal identified a conflict among the
California Courts of Appeal with respect to the presumption
of innocence. 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.
In the case before us, the Court of Appeal declined to
reach the question whether the prosecutor had misstated the
law. Assuming without deciding that the prosecutor had done
so, the court held that any error was harmless: “We need not
18 FORD V. PEERY
resolve any conflict between Goldberg [and other cases] on
the one hand, and Dowdell on the other because we conclude
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).”
The California Supreme Court denied Ford’s petition for
review in a one-line order. Ford then sought state habeas in
California Superior Court, claiming, inter alia, that the
prosecutor had committed misconduct by telling the jury that
“the presumption of innocence is over.” The Superior Court
did not reach the merits of the claim because it had been
raised and rejected on direct appeal.
Ford then sought federal habeas relief under 28 U.S.C.
§ 2254. He made several claims: (1) the prosecutor’s
statements during closing argument that the “presumption of
innocence is over” and “petitioner is not presumed innocent
anymore” violated due process and were not harmless; (2) the
trial court’s response to a question asked by the jury violated
due process; (3) defense counsel provided ineffective
assistance in failing to object to the trial court’s response to
the jury’s question; (4) it cannot be determined whether the
jury convicted Ford on a legally incorrect theory;
(5) improper admission of the Facebook post; and
(6) cumulative error. A magistrate judge recommended
denying Ford’s petition and granting a Certificate of
Appealability on Claims (2), (3), and (4). The district judge
adopted the magistrate judge’s Report and Recommendation
in full.
Ford appealed the denial of Claims (1) and (4). We asked
the State to brief Claim (1) and now grant a Certificate of
FORD V. PEERY 19
Appealability as to that claim. We reverse the district court
on Claim (1). We do not reach Claim (4).
III. Standard of Review
In order to obtain habeas relief in federal court,
petitioners 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 (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 question before us is whether the prosecutor’s
statements during closing argument that the presumption of
innocence was now “over” amounted to prosecutorial
misconduct in violation of due process under Darden v.
Wainwright, 477 U.S. 168 (1986). The California Court of
Appeal declined to reach the substantive question of whether
the prosecutor misstated the law. It did not mention Darden.
It held only that any presumed error was harmless beyond a
reasonable doubt under Chapman. There is no state-court
decision to which we can defer in determining whether the
prosecutor misstated federal law and, if so, whether that
20 FORD V. PEERY
misstatement violated due process under Darden. We
therefore review the Darden claim de novo.
For the reasons that follow, we hold that the prosecutor’s
statements violated due process under Darden. Prosecutorial
misconduct under Darden 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 (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.
In stating that the presumption of innocence was now
“over,” the prosecutor misstated federal law. The
presumption of innocence is “the undoubted law, axiomatic
and elementary”; the presumption of innocence is “vital and
fundamental.” Coffin v. United States, 156 U.S. 432, 453,
460 (1895). The presumption is “a basic component of a fair
trial under our system of criminal justice.” Estelle v.
Williams, 425 U.S. 501, 503 (1976). Its “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
(1984).
The Supreme Court has repeatedly made clear that
criminal defendants lose the presumption of innocence only
FORD V. PEERY 21
after 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”).
Under Darden, we ask whether “there is a reasonable
probability” that the prosecutor’s misstatement of law
“rendered the trial fundamentally unfair” and thus violated
due process. Deck, 814 F.3d at 985. In Hein v. Sullivan,
601 F.3d 897 (9th Cir. 2010), we listed the multiple factors
considered by the Supreme Court in Darden in determining
whether improper prosecutorial statements rise to the level of
a due process violation. We wrote:
The Darden factors—i.e., the weight of the
evidence, the prominence of the comment in
the context of the entire trial, whether the
prosecution misstated the evidence, whether
the judge instructed the jury to disregard the
comment, whether the comment was invited
by defense counsel in its summation and
whether defense counsel had an adequate
opportunity to rebut the comment—require
courts to place improper argument in the
context of the entire trial to evaluate whether
its damaging effect was mitigated or
aggravated.
22 FORD V. PEERY
Id. at 914. “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.” Id. at 914–15; see also Deck, 814 F.3d at 979. The
reasonable probability test is not whether Ford “would more
likely than not have received a different verdict” absent the
prosecutor’s misconduct. Kyles v. Whitley, 514 U.S. 419, 434
(1995). Rather, the test is whether Ford received “a trial
resulting in a verdict worthy of confidence.” Id.We hold that the prosecutor’s repeated statement during
closing argument that the presumption of innocence no longer
applied constituted Darden error. We take in turn the
“Darden factors” listed in Hein.
“The weight of the evidence” against Ford, Hein,
601 F.3d at 914, was not great. As recounted above, the
evidence was circumstantial, incomplete, and in conflict.
While there was some inculpatory evidence (the partial palm
print, the stolen cell phones, Ford’s conversation with his
girlfriend, and Ford’s Facebook post), no one saw the
shooting. Neither of the two witnesses who had seen three
young black men on the street shortly before the shooting
could identify Ford. The manner of shooting hypothesized by
the prosecutor conflicted with his expert’s testimony the gun
had been at least three feet away from Martinez when it was
fired. The hypothesized manner of shooting was also
inconsistent with Johnson’s testimony that she heard the
sound of a shot and broken glass, and with the fact that
passenger side, rather than driver side, windows were
shattered.
The jury clearly had trouble with the evidence. After four
days of deliberations, they reported to the court that they were
FORD V. PEERY 23
“hopelessly deadlocked.” The court sent them back to
deliberate further. When the jury returned, their answer was
internally inconsistent. It was uncontested that Martinez had
been killed with a single shot to the head. Ford had been
charged with shooting and killing Martinez. The jury found
Ford guilty of the murder charge. But the jury was split with
a vote of seven to five on whether Ford had used a firearm in
killing Martinez.
The “prominence” of the prosecutor’s statements, id.,could hardly have been greater. During the course of his
closing argument, the prosecutor had repeatedly said that the
state had the burden of proof to show guilt beyond a
reasonable doubt. But then, at the end of his rebuttal in his
closing argument, the prosecutor stated three times that the
presumption of innocence no longer applied. The
prosecutor’s rebuttal was the last thing the jury heard from
either of the attorneys. The jury retired to begin deliberations
later that same day.
Although the prosecutor did not “misstate[] the evidence,”
id., he misstated the law. He did so three times, in the space
of a few moments.
The judge did not “instruct[] the jury to disregard the
comment.” Id. Quite the opposite. When Ford’s attorney
objected to the prosecutor’s misstatements, the judge held a
sidebar and then overruled the objection. A written
instruction told the jury about the existence of the
presumption of innocence: “A defendant in a criminal case
is presumed to be innocent. This presumption requires that
the People prove a defendant guilty beyond a reasonable
doubt.” However, the written instruction did not tell the jury
when the presumption applied and when it was “over.” The
24 FORD V. PEERY
judge supplied that instruction. When he overruled the
defense’s objection to the prosecutor’s misstatements, the
judge told the jury, in effect, that the presumption of
innocence was “over” before they retired to begin
deliberations.
Ford’s attorney neither “invited” the prosecutor’s
misstatements, nor was she given “an adequate opportunity
to rebut” them. Id. The prosecutor did not state in his initial
closing argument that the presumption of innocence was
“over.” Had he done so, Ford’s attorney could have
emphatically—and correctly—stated in her responsive
closing argument that the presumption of innocence lasts
unless and until a defendant is convicted. Instead, the
prosecutor made his misstatements in rebuttal. At that point,
Ford’s attorney could only make an objection, which the
judge improperly overruled.
We conclude that there was a reasonable probability of a
different outcome in this thin, circumstantial case had the
prosecutor not misstated the law. Therefore, we hold under
Darden that the prosecutor’s error violated due process.
B. No Need for a Separate Prejudice Determination
Federal habeas relief is available only if there was “actual
prejudice” resulting from an error. Davis v. Ayala, 576 U.S.
257, 267 (2015) (citation omitted); Deck, 814 F.3d at 985.
On collateral review, we determine prejudice by applying the
harmlessness standard articulated in Brecht v. Abrahamson,
507 U.S. 619 (1993), whether a constitutional violation had
a “substantial and injurious effect or influence in determining
the jury’s verdict.” Id. at 623 (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
FORD V. PEERY 25
In Darden cases, prejudice is incorporated into the
analysis of the due process violation itself. There is a due
process violation under Darden when there was a “reasonable
probability of a different result” absent the prosecutor’s
misconduct. Hein, 601 F.3d at 914–15 (internal quotation
marks omitted). The Supreme Court explained in Kyles that
a determination that there is a “reasonable probability” of the
different outcome “necessarily entails the conclusion that the
suppression must have had a ‘substantial and injurious effect
or influence in determining the jury’s verdict.’” Kyles,
514 U.S. at 435 (quoting Brecht, 507 U.S. at 623). Once
there has been a determination that absent the error there was
a “reasonable probability” of a different outcome, the error
“cannot subsequently be found harmless under Brecht.” Id.
at 436.
C. AEDPA Deference
On direct appeal, the California Court of Appeal declined
to decide whether the prosecutor had misstated the law.
Assuming without deciding that he had done so, the Court of
Appeal held under Chapman that any error was “harmless
beyond a reasonable doubt.” Chapman, 386 U.S. at 24. The
Court of Appeal did not mention Darden and made no
holding with respect to whether there was a “reasonable
probability” that the prosecutor’s misstatements affected the
outcome of the proceeding.
A determination of prejudice constitutes an “adjudication
on the merits” for purposes of triggering AEDPA deference.
See Davis, 576 U.S. at 269 (holding that the state court’s
determination of harmlessness “undoubtedly constitutes an
adjudication of [petitioner’s] constitutional claim ‘on the
merits’”). We recognize, of course, that the Chapman test is
26 FORD V. PEERY
more favorable to Ford than Darden’s “reasonable
probability” test. A determination that an error was harmless
under Chapman would therefore necessarily entail a
determination that the error did not have a “reasonable
probability” of changing the result under Darden. But under
AEDPA, if a state court articulates its reasoning, it is only
that reasoning that receives deference. See Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018) (instructing courts to “look
through” a summary affirmance for the relevant rationale
provided by the lower court); Ylst, 501 U.S. at 803; cf.
Harrington v. Richter, 562 U.S. 86, 98 (2011). The Court of
Appeal’s reasoning was based on Chapman. We therefore
ask whether the state court was unreasonable in holding that
the prosecutor’s misstatement of the law was “harmless
beyond a reasonable doubt” under Chapman. We conclude
that it was.
As we outlined in detail above, this was a very close case.
The evidence against Ford was circumstantial, incomplete,
and in conflict. The jury was unable, despite extensive
deliberations, to reach an internally consistent decision on
Ford’s guilt. The jury deliberated for four days and reported
to the court that it was “hopelessly deadlocked.” After
further deliberation, the jury returned a verdict that Ford was
guilty of murdering Martinez by shooting him in the head, but
hung on the question of whether Ford had used a firearm. In
these circumstances, we conclude that it was “objectively
unreasonable” for the Court of Appeal to conclude under
Chapman that the prosecutor’s misstatements of the law were
harmless beyond a reasonable doubt.
FORD V. PEERY 27
Conclusion
We hold that the prosecutor’s repeated statements,
endorsed by the trial judge, that the presumption of innocence
no longer applied violated due process under Darden. A
holding of a due process violation under Darden necessarily
entails a conclusion that the prosecutor’s misstatements of the
law were prejudicial. We further hold that the Court of
Appeal unreasonably concluded under Chapman that the
prosecutor’s misstatements of the law were harmless beyond
a reasonable doubt. We reverse the decision of the district
court and remand with instructions to conditionally grant the
writ, subject to the State’s retrying Ford within a reasonable
time not to exceed 180 days.
REVERSED and REMANDED.
R. NELSON, Circuit Judge, dissenting:
The majority vacates Keith Ford’s first degree felony
murder conviction on habeas review only by ignoring the
highly deferential standard we owe to the California Court of
Appeal’s harmlessness conclusion under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). Instead, the
majority adopts a “broad exercise of supervisory power” over
a state court’s trial proceedings, inconsistent with the narrow
legal standard for habeas review. Darden v. Wainwright,
477 U.S. 168, 181 (1986). Applying the correct legal
standard, I would affirm the district court’s denial of the
habeas petition.
28 FORD V. PEERY
Misstatements of the law by a prosecutor only amount to
a due process violation under Darden if they render the trial
fundamentally unfair. In their proper context, the
prosecutor’s closing argument statements regarding the
presumption of innocence merely emphasized the government
had carried its burden of proving Ford’s guilt beyond a
reasonable doubt. There is no reasonable probability that the
jury was confused about this presumption, given the
prosecutor’s repeated reaffirmation of the presumption and
the trial court’s repeated, explicit instructions to the jury
regarding both the government’s burden of proof and the
presumption of innocence. These instructions were more
than sufficient to remedy any potential unfairness that may
have resulted from the isolated comments. And even if there
was Darden error, the majority misapplies AEDPA deference
in finding that the California Court of Appeal’s harmlessness
conclusion was objectively unreasonable. Therefore, I
respectfully dissent.1
I
A brief review of the relevant background is warranted.
Ruben Martinez was shot at point blank range in his car,
while he waited to take his girlfriend on a date, after quickly
1
The majority grants a Certificate of Appealability as to Ford’s claim
that the prosecutor’s statements regarding the presumption of innocence
violated due process. Majority at 18–19. I would deny the Certificate of
Appealability because Ford has not made a “substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). See Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (“Where a district court has rejected
the constitutional claims on the merits, the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.”).
FORD V. PEERY 29
dropping her off at her house. After a three-week trial,
petitioner Keith Ford was convicted of first degree felony
murder.
During trial, the jury heard that Martinez had washed his
car just hours before he picked his girlfriend up for the date
and his car was “clean and shiny.” People v. Ford, No.
A137496, 2014 WL 4446166, at *1 (Cal. Ct. App. Sept. 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. Ford
never explained how his left palm print was 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.
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 for
his girlfriend. 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.
The jury also heard that as Martinez waited for his
girlfriend, he was on his cell phone, which was visible
through his car window. A few days after the murder, Ford
was stopped by a detective and six stolen cell phones were
30 FORD V. PEERY
found in the center console of Ford’s car. Ford indicated to
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. Several months after Martinez’s
murder, Ford posted on Facebook comments about being
suspected of a murder and described in detail how he would
conduct a murder.
Before closing argument, the state trial court orally
instructed the jury regarding 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 began. And the
jury was instructed to follow the law as detailed in the written
jury instructions and to disregard any of counsel’s 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.” This drew an 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
FORD V. PEERY 31
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.”
After closing, the district court provided the jury written
instructions, including regarding 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 sufficient 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
prosecutorial misconduct was harmless. The California
Supreme Court denied review. The federal magistrate judge
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,
the district court did not certify the question regarding
potential prosecutorial misconduct which the majority relies
on to reverse and vacate Ford’s first degree felony murder
conviction.
II
The majority holds that the prosecutor’s comments
“during closing argument that the presumption of innocence
no longer applied constituted Darden error.” Majority at 22.
In my view, however, 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 (internal quotation
32 FORD V. PEERY
marks and 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. But even
assuming a risk of juror confusion from the prosecutor’s
comments, no reasonable probability exists that Ford was
deprived of a fair trial in light of the trial court’s oral
instruction to the jury before the prosecutor’s closing, and its
written instruction—after the prosecutor’s closing and taken
into the jury deliberation room—regarding the presumption
of innocence.
First, “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
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.
FORD V. PEERY 33
The prosecutor made numerous statements supporting the
more reasonable interpretation (largely ignored by the
majority). For instance, the prosecutor introduced his closing
argument, 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 argument,
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”;
• “[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”;
• “[Y]ou did all make that promise at the beginning and
I will hold you to that promise, if I prove my case
34 FORD V. PEERY
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.” (emphasis added). He even 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) combine 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 overcome the presumption of innocence.2 The majority
fails to show any 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
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
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
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 demonstrate
Ford’s guilt beyond a reasonable doubt, see supra at 33–34,
the jury was also formally instructed by the trial court that
Ford was entitled to a presumption of innocence and that this
presumption requires 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 789–90.3
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
until jury deliberations, and also understood what the
prosecutor meant and reasonably determined the comments
in context presented no risk of juror confusion. The court
stated (outside the presence of the jury), in response to
3
Although not controlling, the California Supreme Court has twice
rejected the specific argument that a prosecutor’s misstatement of the
presumption of innocence in closing was constitutional Darden error. See
People v. Booker, 245 P.3d 366, 401–02 (Cal. 2011); People v. Panah,
107 P.3d 790, 834–35 (Cal. 2005).
36 FORD V. PEERY
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,
when considered in context, consistent with the majority’s
isolated gloss. Despite indications the jurors were confused
on other issues, there is no suggestion any single 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.
Second, even assuming that the prosecutor’s statements
viewed in context rose to the level of a misstatement of
federal law, they did not “so infect[] the trial with unfairness
as to make the resultant conviction a denial of due process.”
Darden, 477 U.S. at 181 (internal quotation marks and
citation omitted). “[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. See
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
FORD V. PEERY 37
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 properly orally
instructed the jury that the defendant was presumed innocent
and that 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 informed jurors that they must apply the law
as explained by the court’s instructions, and that they must
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 . . . closing arguments, the attorneys
discuss the case, but their remarks are not evidence.” The
written jury instructions were subsequently taken into the
deliberation room. In light of the written instructions on the
presumption of innocence being taken into the jury room, the
majority’s conclusion that the instructions did not indicate
when the presumption ceases falls flat. No court has ever
required a temporal statement regarding the presumption of
innocence, as suggested by the majority. See Majority at 23.
And the trial court proceedings clarify why none was
necessary.
The majority contends that when the trial court “overruled
the defense’s objection to the prosecutor’s misstatements, the
[court] told the jury, in effect, that the presumption of
innocence was ‘over’ before they retired to begin
deliberations.” Majority at 24. But there is no reasonable
support for the majority’s interpretation. And certainly none
38 FORD V. PEERY
that would compel this interpretation or preclude far more
reasonable and less damaging interpretations. As noted,
supra at 30–31, 35–36, the district court reasonably explained
that it overruled the objection because the prosecutor’s
statements had caused no harm as the jurors had been
repeatedly reminded not to form any opinion until after they
deliberated. Moreover, if the majority’s interpretation were
correct, then the trial court would not have sent the written
instruction regarding the presumption of innocence into the
jury room.
Ultimately, by dismissing these instructions—both oral
and written, and temporally bookending the challenged
comments—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 (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 argument did not constitute a miscarriage
of justice where 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. By disregarding the presumption
that jurors follow the court’s instructions, and giving the
prosecutor’s isolated statements significantly more force than
those instructions, the majority errs.
FORD V. PEERY 39
For these reasons, there is no reasonable likelihood the
jury misunderstood the prosecutor’s comments and convicted
Ford without finding guilt beyond a reasonable doubt. The
state trial court did not violate due process under Darden.
III
In concluding that the California Court of Appeal’s
finding of harmlessness was “objectively unreasonable,” the
majority misapplies AEDPA deference. Under AEDPA, we
cannot order habeas relief unless 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).
“[A] state court decision is contrary to our clearly
established precedent if the state court applies a rule that
contradicts the governing law set forth in [the Supreme
Court’s] cases or if the state court confronts a set of facts that
are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from our precedent.” Lockyer v. Andrade, 538 U.S. 63, 73
(2003) (emphases added) (internal quotation marks and
citation omitted). Furthermore, “an unreasonable application
of federal law is different from an incorrect application of
federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000).
This means that “a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id.
at 411. Rather, the state court decision must be “objectively
40 FORD V. PEERY
unreasonable.” Id. at 409. “This distinction creates ‘a
substantially higher threshold’ for obtaining relief than de
novo review.” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
Thus, AEDPA “imposes a highly deferential standard
for evaluating state-court rulings” and “demands that
[they] be given the benefit of the doubt.” Id. (internal
quotation marks and citation omitted).4 “There must be
4
Our court has struggled to correctly apply AEDPA’s highly
deferential standard. See, e.g., Sexton v. Beaudreaux, 138 S. Ct. 2555,
2558 (2018) (per curiam) (“[t]he Ninth Circuit failed to . . . apply” the
proper standard and instead “spent most of its opinion conducting a de
novo analysis”); Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per curiam)
(finding “several problems with the Ninth Circuit’s reasoning,” including
that it failed to recognize that “fairminded jurists could disagree” about
how to construe Supreme Court precedent (citation omitted)); Davis v.
Ayala, 576 U.S. 257, 260 (2015) (“The Ninth Circuit’s decision was based
on the misapplication of basic rules regarding harmless error.”); Lopez v.
Smith, 574 U.S. 1, 6 (2014) (per curiam) (criticizing “the Ninth Circuit in
particular” for applying a legal standard nowhere found in AEDPA);
Johnson v. Williams, 568 U.S. 289, 297 (2013) (holding that “the Ninth
Circuit declined to apply the deferential standard of review” mandated by
AEDPA); Cavazos v. Smith, 565 U.S. 1, 7 (2011) (per curiam) (“When the
deference to state court decisions required by § 2254(d) is applied to the
state court’s already deferential review, there can be no doubt of the Ninth
Circuit’s error below.” (citation omitted)); Felkner v. Jackson, 562 U.S.
594, 598 (2011) (per curiam) (“[t]here was simply no basis for the Ninth
Circuit” to grant habeas relief under AEDPA’s highly deferential standard,
“particularly in such a dismissive manner”); Premo v. Moore, 562 U.S.
115, 123 (2011) (“The [Ninth Circuit] was wrong to accord scant
deference to counsel’s judgment, and doubly wrong to conclude it would
have been unreasonable to find that the defense attorney qualified as
counsel for Sixth Amendment purposes.”); Harrington v. Richter, 562
U.S. 86, 92 (2011) (“[J]udicial disregard [for the sound and established
principles of when to issue a writ of habeas corpus] is inherent in the
opinion of the Court of Appeals for the Ninth Circuit here under review.”);
FORD V. PEERY 41
more than a ‘reasonable possibility’ that the error was
harmful.” Davis v. Ayala, 576 U.S. 257, 268 (2015) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The
Brecht standard for determining harmlessness reflects the
view that a “[s]tate is not to be put to th[e] arduous task [of
retrying a defendant] based on mere speculation that the
defendant was prejudiced by trial error; the court must find
that the defendant was actually prejudiced by the error.”
Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per curiam);
see also Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir.
2008) (“Review for harmless error under Brecht is more
forgiving to state court errors than the harmless error standard
the Supreme Court applies on its direct review of state court
convictions.” (internal quotation marks and citation omitted)).
Here, the majority does not correctly apply this standard
of review—or cite any of these principles—in reviewing the
California Court of Appeal’s harmlessness conclusion. First,
the majority frames the question erroneously by suggesting
that our reasonableness review is informed by Chapman v.
California, 386 U.S. 18, 24 (1976), which requires finding a
constitutional error to be “harmless beyond a reasonable
Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (holding the Ninth
Circuit’s erroneous issuance of a writ was “based, in large measure, on its
application of an improper standard of review”); Uttecht v. Brown,
551 U.S. 1, 22 (2007) (“[t]he Court of Appeals neglected to accord” the
proper deference to the state trial court); Schriro, 550 U.S. at 473 (“The
question under AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.”); Woodford v. Visciotti,
537 U.S. 19, 25 (2002) (per curiam) (criticizing the Ninth Circuit for
“substitut[ing] its own judgment for that of the state court, in
contravention of 28 U.S.C. § 2254(d)”). Despite the Supreme Court’s
repeated admonitions, the majority repeats our court’s sadly regular error.
42 FORD V. PEERY
doubt.” Majority at 5, 26. But Chapman has no relevance to
this Court’s habeas review, either directly or through a back-
door gloss on our review. In Brecht, the Supreme Court held
the Chapman standard too “onerous” for “determining
whether habeas relief must be granted.” 507 U.S. at 623.
“When a Chapman decision is reviewed under AEDPA, ‘a
federal court may not award habeas relief under § 2254 unless
the harmlessness determination itself was unreasonable.’”
Ayala, 576 U.S. at 269 (quoting Fry v. Pliler, 551 U.S. 112,
119 (2007)); see also Rademaker v. Paramo, 835 F.3d 1018,
1023 (9th Cir. 2016). AEDPA’s language is clear. We
review only whether the state court decision “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).
Moreover, the majority fails to cite a single Supreme
Court case showing the California Court of Appeal’s decision
was “contrary to . . . clearly established Federal law.”
28 U.S.C. § 2254(d). It does not establish that the Court of
Appeal applied a rule contradicting the governing law, or that
the Court of Appeal deviated from Supreme Court precedent
with materially indistinguishable facts. See Lockyer,
538 U.S. at 73.
The majority also elided aspects of the trial that cured any
prejudicial effect of the supposed error. This oversight is
particularly egregious because it disregards almost the entire
rationale provided by the California Court of Appeal. The
Court of Appeal wrote four sentences explaining its rationale
for finding any error harmless. Three of those sentences have
to do with instructions given to the jury, which the majority
ignores in its harmlessness analysis. The Court of Appeal
noted:
FORD V. PEERY 43
The court instructed the jury Ford was
presumed innocent until the contrary was
proven beyond a reasonable doubt
(CALCRIM No. 220) and to disregard any
conflicting statements made by the attorneys
concerning the law (CALCRIM No. 200).
Additionally, the prosecutor repeatedly
reminded the jury of his burden to establish
guilt beyond a reasonable doubt. The jury
was properly informed about the
prosecution’s burden.
These conclusions are reasonable. “Jurors do not sit in
solitary isolation booths parsing instructions”—or
prosecutors’ comments—“for subtle shades of meaning in the
same way that lawyers might.” Boyde, 494 U.S. at 380–81.
And based on the instructions given—which the jury is
presumed to have followed, see Tak Sun Tan, 413 F.3d
at 1115—the jury understood everything it needed to render
a constitutional verdict. The jury knew, based on the
instructions, that it should not take whatever was said in
closing arguments as the law. More importantly, it
understood the concept that the presumption exists to drive
home “that the State has the burden of establishing every
element of the offense beyond a reasonable doubt.” Delo v.
Lashley, 507 U.S. 272, 278 (1993). Put differently, the jury
was not misled into thinking that it could decide the case
based on suspicion or extra-record evidence. It knew that the
burden of proof was beyond a reasonable doubt. See Taylor
v. Kentucky, 436 U.S. 478, 484–85 (1978) (explaining the
dual purpose of the presumption of innocence); see also
Estelle v. Williams, 425 U.S. 501, 503 (1976) (noting that the
presumption of innocence embodies “the principle that guilt
is to be established by probative evidence and beyond a
44 FORD V. PEERY
reasonable doubt”). The Court of Appeal’s reliance on the
jury instructions as support for its harmlessness conclusion
was therefore reasonable.
The Supreme Court’s decision in Brown v. Payton,
544 U.S. 133 (2005), reversing our court’s decision, supports
this conclusion. There, a prosecutor erroneously stated
during closing argument that the jury was not allowed to
consider mitigation evidence. Id. at 138. Defense counsel’s
objection was overruled without an instant curative
instruction. Id. But “[t]he jury was not left without any
judicial direction.” Id. at 146. The jury was instructed before
deliberations began that it could consider all evidence
presented at trial unless told otherwise. Id. Because it was
never instructed that it could not consider the mitigation
evidence, it was not unreasonable for the Court of Appeal to
conclude that any error caused by the prosecutor’s
misstatement of the law was harmless. Id. at 147.
The majority largely overlooks the effect of the jury
instructions and instead focuses on the evidence of guilt.
Here, too, it errs. According to the majority, this was “a very
close case” based in large part on “circumstantial” and
“incomplete” evidence, so any error must have been harmful.
Majority at 26. But the majority’s view of the closeness of
the case is not determinative under AEDPA’s analysis. There
was nothing “objectively unreasonable” about the Court of
Appeal’s conclusion that “the evidence of Ford’s guilt was
strong.” So under AEDPA, we must defer to that finding.
To be sure, the evidence of guilt may not have been
“overwhelming.” Brecht, 507 U.S. at 639. But it was
“certainly weighty.” Id. One need look no further than the
main piece of direct evidence in this case: the partial palm
FORD V. PEERY 45
print. That print was found on the victim’s car, just four
hours after it was washed. As the prosecutor observed, the
print was also a left palm print, in the exact location where a
right-handed shooter would be expected to place his left hand
when leaning into the window. And Ford had no explanation
for why his left palm print might be on that exact location
within proximate timing of the murder other than that he
touched the car some other time. As Ford put it, “[T]hat
don’t mean nothing. That just means I came in contact with
the vehicle at one time or another.” This evidence, paired
with the multiple pieces of circumstantial evidence
suggesting Ford’s guilt—including Ford’s Facebook post; his
phone call with his girlfriend; the multiple stolen cell phones;
his height, general appearance, and general age consistent
with witness descriptions; and the white vehicle he was
driving—provide a reasonable basis for concluding that the
evidence of guilt was strong enough that some passing
statements during a closing argument did not create a
“reasonable probability of a different result.” Hein v.
Sullivan, 601 F.3d 897, 906 (9th Cir. 2010) (internal
quotation marks and citation omitted).
The majority’s conclusion to the contrary 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. 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 felony in which Martinez was murdered, but did
not actually pull the trigger. Regardless, even a potentially
inconsistent jury verdict provides no support for any error
46 FORD V. PEERY
being harmful here. And it fails to justify disregarding the
Court of Appeal’s finding of harmlessness which is entitled
to substantial deference under AEDPA.
The majority also focuses on the length of deliberations
and the jury being “hopelessly deadlocked.” Majority at
22–23, 26. 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 gives it. And it certainly does not provide a basis for
deeming the Court of Appeal’s harmlessness conclusion
“unreasonable.”
* * *
Under AEDPA, “[o]ur aim is not to punish society for the
misdeeds of the prosecutor; rather, our goal is to ensure that
the petitioner received a fair trial.” Trillo v. Biter, 769 F.3d
995, 1001 (9th Cir. 2014). Ford received a fair trial, and we
must defer to the Court of Appeal’s eminently reasonable
finding of harmlessness in any event. I would deny relief,
and thus respectfully dissent.