FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH UNDRAY FORD,

Petitioner-Appellant,

v.

SUZANNE M. PEERY, Warden,

Respondent-Appellee.

No. 18-15498

D.C. No.

2:15-cv-02463-

MCE-GGH

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 claimde 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 crossexamine 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 fromfour 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 palmprint 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 crossexamine 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 seconddegree 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 oflaw. 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 himin 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 ofinnocence merely emphasizedthe 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 firearmpossession

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 themto 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 deferentialstandard,

“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 quotationmarks 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 backdoor 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.