FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KE I T H U

ND R A Y F O R D , Petitioner-Appellant
,

v

.

S U ZA N NE M. P E E R

Y , W arden, 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 Subm itted January 22, 2020 San Francisco, California

F iled September 28, 2020

Before: W illiamA. Fletcher and Ryan D. Nelson, Circuit Judges, and Donald W . Molloy, * District Judge.

Opinion by Judge W . Fletcher; Dissent by Judge R. Nelson

* The H onorable Donald W

. Molloy, United States District Judge f o r the District of Montana, sitting by designation.F O R D V

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SUMMARY * *

Habeas Corpus

The panel reversed the d i s tr i ct court’s denial of Keith Ford’s habeas corpus petition challenging his first-degree

m ur d e r conviction, and rem anded with instructions to conditionally grant the writ, in a case in which the p rosecutor, at the end of his closing-argum ent rebuttal, told the jury that the presumption of innocence no longer applied.

Because there was no sta t e- court decision to which the panel could d efer in determ ining whether the prosecutor

m isstated fe d e r a l law and, if so, whether that statem ent violated due process under Darden v. Wainwright
, 477 U.S. 168 (1986), the panel reviewed Ford’s Darden claim de novo. The panel h eld that the prosecu t o r ’s repeated statem ents, endorsed by the trial judge, that the presum ption of innocence

no longer applied violated due proc es s under Darden

. The panel explained that a holding of a du e p r o cess violation under Darden necessarily entails a conclus i o n that the prosecutor’s m isstatem ents of the law were prejudicial. The panel further he l d that the California Court of Appeal unreasonably concluded under Chapman v. Californ i a , 386 U.S. 18 (1967), that the prosecutor’s m isstatem ents of the law were harm less beyond a reasonable doubt.

Dissenting, Ju d g e R. Nelson wrote that the m ajority ignores the h ighly deferential standard o wed to the California Court of Appeal’s harm lessness conclusion under A E D PA

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.F O R D V

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and instead adopts a broa d exercise of supervisory power

over a state court’s trial proceedings, inconsistent with the narrow legal standard for habeas review.

C OUNSEL

Barry Morris (argued), W alnut Creek, California, for Petitioner-Appellant.

Kristin Liska (argued), Asso c iate Deputy Solicitor G eneral; Jill M. T hayer, Dep uty Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Lance E. W inters, Chief As sistant Attorney G eneral; Xavier Becerra, Attorney General; Attorney General’s O ffice, San Francisco, California; for Respondent-Appellee.

OPINION

W . FLETCHER, Circuit Judge:

In August 2010, Rub e n Martinez w as shot and killed in Vallejo, California. Keith Ford was charged with first degree

m urder with three f

irearm enhancem e n t s

. Ford w as tried in the Cal ifo rnia Superior Court for Solano County in August 2012.

Durin g c losing argum ent, at the end of his rebuttal, the prosecutor told the jury that the p resum ption of innocence no longer applied. He said:F O R D V

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This i dea of this presumption of innocence is

over. Mr. Ford had a fair trial. W e were here for three weeks where

. . . he gets to crossexam ine witnesses; also an opportunity to present evidence inform ation through his lawyer. He had a fair trial. This system is not perfect, but h e had a fair o pportunity and a fair trial. He’s not presumed innocent anymore.
(Emp h a ses added.) The defense attorney o bjected, “That

m isstates the law.” The court overruled the o bjection. The prosecutor resum ed, “And so we’re past that point. ”

The jury began deliberating later that day, on Tuesday, August 2 1, 20 1 2

. On Friday, August 24, the fourth day o f deliberations, the jury reported that it w as “hopelessly deadlocked,” with one juror ho l d ing out for acquittal. The court sent the jury back to d eliberate further. T h e following Tuesday, August 28, th e jury returned a unanim ous verdict that d efendan t Ford was guilty of first-degree m urder. The jury was still “hopelessly deadlocked” on three f irearm enhancem ents, including an enhancem ent for “personal use of a firearm d

uring the comm ission of the crim e.” The final vote on the “personal use” enh an c e me nt was seven to five. The court declared a mi strial as to all three f irearm enhancem ents.

Martinez had been killed wi th a single shot to h is head. The prosecutor had contended that Ford h ad s h o t Martinez. The prosecutor had never contended, or even suggested, that anyone other than Ford h a d fired the shot that killed Martinez.F O R D V

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Aft er exhausting his state-court rem edies, Ford sought federal habeas relief under 28 U .S.C. § 2 254. W e answer two principal questions. F irst, in overruling the objection t o the prosecutor’s statem ents that the p resum ption of innocence no longer applied did the California Superior Court violate due p rocess under Darden v. Wainwright
, 477 U.S. 168 (1986) ? Second, w as the California Court of Appeal objectively unreasonable in holding that any error was harm less b eyond

a reasonable doubt under Chapman v. California
, 386 U.S. 18 (1967)? W e answer “yes” to both questions.

I. The Trial

A. Summ ary of Evidence Presented

On August 7, 2010, a Saturday evening, Ruben Martinez

was k illed in h i s SUV in front o f his girlfriend’s house on a

s ho rt b lock of Beach Street between Benicia R oad an d Central Avenue in Vallejo, California. At about 10:00 p.m ., Martinez had driven his girlfriend Jessica Blanco hom e so she could use the b athroom , check m ovie tim es, and g et her jacket. Just before Martinez turned left onto Beach Street from Benicia Road, a white car ahead of them m ade a U-turn

an d we n t 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 m ake o r

m odel of the car.

When they arrived at her house, Blanco went inside while Martinez stayed in his SUV with the m otor still running. Martinez had washed the SUV earlier in the day. Blanco testified at trial that a f

ew m inutes after walking into the house, she heard a loud popping noise and the revving of an engine. S he “heard a screeching noise, tires peeling, gravel.”F O R D V

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Blanco went outside and saw that Mart i n ez ’ s SUV h ad crashed into a neighbor’s garage down the street.

A few m inutes before Martinez was shot, Bethel Johnson (“Johnson”) and two of her children arrived at the ir h ouse

across the street from Blanco’s house. When Johnson got out of he r c ar, s h e saw Martinez sitting in his SUV with the

m otor running and headlights on , an d with the driver’s side window rolled u

p. Johnson testified th a t she could see through the tinted w indow that Martinez was looking at his lighted cell p hone. She testified that there was a p arty on Beach Street at a black m otorcycl e c l ub about half a block away on the other side o f Benicia R oad. There was a p arty at the club “alm ost every Saturday that m onth.” Johnson testified that three young black m en were walking up Beach Street toward the party. Two of them were “m aybe 16, 17, 18 years old,” and the other was “m uch older,” “19, 21. Between there.” Johnson testi fied that the older m an was “som ewhere” between 5 '6 " and 5 ' 9", that he was w earing a dark hooded sweatshirt, and that he had dreads.

Johnson’s daughter, Tenley Johnson (“Tenley”), got out of the back seat o n the passenger side wi th the fam ily Rottweiler on a leash. Johnson testified that the dog charged the m an s he h ad described as older. She called to Tenley, “Control your dog.” Johnson tes ti fi ed that the m an “said

som ething like, ‘Hi girly,’ and then k ind o f like turned around away fro m the dog” and walked in the opposite direction
t o war d Central Avenue, away from the party. She testifie d that she saw no weapons, and th at th e m an said nothing threatening to Tenley. Between two and three m inutes after getting into her house, Johnson heard what s o un d e d like a shot and broken glass. Johnson went outside to check on herF O R D V

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car. She found her own c ar intact and saw no one o n the street.

Tenley testified that she, too, h ad seen Martinez’s cell phone light through the window of the SUV. She t e s tified that when she got out o f the car, she saw thr e e y oung black

m en walking from Central Avenue toward the party on Benicia Road. She d escribed them to a police officer that night as “teenagers.” Te n l e y s aid her dog “started barking and . . . pulling m e.” The dog pulled her toward a m an with “short hair.” She said, “I couldn’t really see the face. It was dark.” She testified that the m an w as “skinny.” Tenley is 5' 3". S he described the m an as taller than she was and shorter than a 6' 0" police officer who in terviewed her. Tenley testified tha t the m an was wearing a blue jacket with one o r

m ore white stripes “on the s l e ev e s .” She said it w as “like a track jacket” an d th at it did not cover h is head. One of the other m en had drea d s

. She did not see any of the m en’s faces. When later shown six photographs, including a photograph of For d
, T enley did not identify Ford as o ne o f the three “teenagers” she had seen that night.

Another neighbor, Moises Cervantes, was walking out o f his house on Beach Street. His house was between Blanco’s house and Central Avenue. Cervantes heard a “pop” and saw Martinez’s SUV com ing toward h im

. After the SUV crashed, Cervantes looked up and down the street and saw no one.

Martinez w as killed wi th a s i n gle shot. H is foot was pressed on the gas pedal, causing the SUV to accelerate down the street until it crashed into th e n e i g h bor’s garage. The engine continued to run, and the rear wheels to spi n , even

a ft er the SUV cam e to a stop. Martinez’s cell ph o n e wa s found on the floorboard o f the front passenger s eat. TheF O R D V

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driver’s side window was intact and about “a q uarter o f the way down.” The other wi n d ows on the driver’s side were closed and intact. A photograph introduced i n t o evidence shows two rear side windows o n the passenger side that were shattered. At least one of the windows had bee n b r o k e n by first responders.

Five days later
, on August 12, two Vallejo detectives lawfully stopped K eith Ford. Ford was twenty-three years old. He is black, is 5' 8" tall, and weighs 165 p o unds. At the
t i m e of the stop, he h ad short hair. He was driving a wh i te Oldsm obile sedan. The detectives f ound 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 Bottom ley, testified that Ford s a i d that he had “bought [the cell phones] stolen off the street.” La t er i n the sam e interview, however, Ford tol d Bo tt om ley he did not know whether they had b een stolen. Ford told Bottom ley that he

was right-handed. Bottom ley asked F ord where he had been on the night of August 7. Ford answered that he “was at his

m other’s hom e an d at that tim e would have been in bed.” Bottom ley testified that F ord’s m other’s house is about three and h alf m iles from Blanco’s neighborhood. Bottom ley did not ask Ford about Martinez’s murder.

When Ford was stopped, he had a jacket in h is car. Detective Bottom ley testified that h e later showed the jacket
to T enley. Tenley told him that it was n o t the jacket she h ad seen on the young m an with the short hair on August 7.

Ford w as arrested on Septem b er 26 and charg e d with having a concealed firearm in his vehicle on that d ate. It wasF O R D V

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stipulated to the jury th at the firearm was unrelated to Martinez’s m

urder. Ford was h eld on the charge in the Solano County Jail until D ecem b er 14. On Decem

ber 13, Detective B o ttom ley interviewed Ford again. He asked Ford if he knew Martinez. Bottom ley testified that Ford s a id “he did not think he did.” Ford repeated that he ha d b ee n at his

m other’s house on the n ight of August 7 and had spe nt the night there. Bottom ley told F ord that his palm print had been found on Martinez ’s SUV. Ford replied, “That don’t m ean nothing. T hat just m ean I cam e in contact with the v ehicle at one tim e 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 thinki ng ab o ut

. . . o h well I wish it didn’t have to h appen

. . . I just [wish] I was at hom e

. . . I know I gotta deal wi th my (unintelligible) it’s too late for all th a t

. . . to b e wishing I was at hom e

. . . S ee I’ m disappointed in myself. But [ expletive] that’s what happens when you carry a gun. Ain’t nothin good gonna com e of it. And I know this and [expletive] still happen, cause I tell other people the only thing you gonna get out

o f a gun is you gonna throw down with it o r you gonna shoot som ebody w ith it. And I tell everybody that and look at my [expletive].

A recording of the call was played for the jury.F O R D V

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Sev eral m o nths after the m urder, the following m essage appeared on Ford’s Facebook page, d irected at som eone who had accused Ford of shooting him :

I heard through the grape vine you was looking for the guy. Let m e know som ething. 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
t o h it a [expletive] that m any tim es and no t knock they [expletive] d own. Last, when you getting shot, I was on Fifth buying som e syrup off Jigs. Plus, I d on’t even [exp l etive] with [expletive], so ain’t nobody talked to m e since I got out of jail last. Real killers m ove in silence. And would I brag on a jo b I didn’t

e v e n c o m p l e t e ? [ E x p l e t i v e ] k n o c k i n g [expletive] down. I d on’t need cred i t for an attem p t, so take that how you want to.

The m essage was read to the jury.

T h e p ro secu

tio n p resen

ted t e s t i mo ny f

ro m f o ur f in g erp rint analysts about the partial latent p alm p r i nt found on Martinez’s SUV. Niki Zam ora of the San Mateo C ounty Forensics Laboratory testified that she exam ined 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 wa s “ rather dirty,” with d irt and a sticky white substance on the door where she found the print. Fire extinguishers had been used on the SUV after the crash. Zam ora testified that s h e c leaned off only som e of the “dirt and debris” before “dusting” and taking her “first lift” of the print. She did not indicate on the “fingerprint card” that theF O R D V

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area from which the print was lifted “had debris o n it.” Zam ora was no t “certified as a crim e scene processor” because she “hadn’t had enough experience yet.”

Frankie Franck, a certified latent print exam iner, m atched Zam ora’s “first lift” to Ford’s palmprint. Franck compared the latent print to “several” electronically taken prints (“Live Scan prints”) that h e had been given, including one fr om Ford taken in October 2009 in Butte County, California. Franck testified that the latent print obtained by Zam o ra “was not o f the best quality,” and that it covered “probably 30 percent” of the total palm

. Despite the quality of the latent print, and despite the f

act that it was o nly a partial print, Franck testified that h e was cert ai n of the m atch—“[a]s certain as I amsitting here.”

Zam ora then confirm ed Franck’s m atch. She c on c e d ed that she had n ot foll owed the lab’s norm al protocol, which required that a confirm ing p rint analyst “not, in any way, [be] associated with the work that

. . . had [been] done.” Zam ora was, of course, directly associated with that work, for she h ad lifted the latent print from the SUV. Z am ora was not certified

as a latent p rint exam iner. She had taken the certification test and was awaiting the result.

Darrell Klasey, a certified latent print exam iner at the Sol an o County Sheriff’s Office, took a rolled ink print o f Ford’s hands in May 2011. Klasey com pared the ink print o f Ford’s left palmto the Live Scan print that Franck had been given. Klasey concluded that the ink print and the Live Scan p ri n t were from the sam e person. Cross-exam ination revealed Klasey’s questionable p erform ance a t a p revious agency.F O R D V

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Lynne L azzari, a latent fingerprint analyst at the Solano County Sheriff’s Office, confirm ed Klasey’s conclusion. Her analysis was based only o n the two prints th a t Klasey h ad given her (Ford’s ink print and the L ive Scan print analyzed by Franck), and she knew that Klasey had already concluded that they m atched. Lazzari testified, “I did my o wn independent study and cam e up w ith wh y i t was the sam e person.” She testified that she “m o re or l es s ” followed a standar d m ethod for com p aring prints. When q

uestioned about the standard m ethod, which requires exam in i n g the unknown print before the known print, she responded that she

com pared the prints side by side: “W ell, that’s why I said ‘m ore o r l e s s.’ I do it my way.” When asked whether her

m ethod had “ever been tested or validated for accuracy,” she

r e s p onded, “No.” Lazzari had never taken the test to b e certified as a latent print exam iner.

There was also testim o ny about the condition of Martinez’s SUV afte r it crashed into the garage. As noted

ab o ve, Z am ora had exam ined the SUV on August 11, 2010

. She testified that the driver’s side w indow was intact and was “partially d own.” Detective Bottom ley, who h ad been at the crim e scene on the night of the m urder, had earlier t e s t i fied that the driver’s side windo w w as intact and was “about a quarter of the way down.” A cc o r ding to the prosecution’s crim e scene reconstructionist, the driver ’ s side window was 1.2 f eet open, and a 5' 8" individua l c o u l d stand by the S UV and reach through the window without contortion. The prosecutor asked whether there was a “[l]arge enough space to put a h and in.” B ottom ley had answer e d, “Absolutely.” Zam ora testified that the other driver’s side windows we r e intact but that the “two rear p assenger side windows ” we r e “shattered,” with “[n]o glass there.” Photographs of the S UV, supporting Zam ora’s testim ony, we r e shown to the jury.F O R D V

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Zam ora testified that there were no bullet holes “either inside . . . or outside” the SUV.

Finally, Sus an Hogan, M.D., a forensic p athologist, testified about the bullet wound and the m anner of shooting. She testified that Martinez was killed by a single shot to the back left side o f his head. T he b u l l et entered about an inch and a half from the top of his h ead and two inches left from the posterior (back) m idline. It traveled downward, forward, and to the right, com in g t o r e s t i n the soft tissue of the right side of the neck

. Dr. Hogan testified that death was “[v]irtually instantan eo us

. ” She testified that there was no soot or “stippling” at or near the entry point, which m eant that the shot was fired from“at least three feet away.”

Defense counsel presented ev id en ce th at other than a brief conversation on the n ight o f the m urder, law enforcem ent did not identify or contact anyone at the m otorcycle party down the street. L aw enforcem ent collected license plate num bers of all of the vehicles on the street, but did n o t follow up on any of them

. Law enforcem ent never showed Blan co a picture of Fo r d ’ s white Oldsm obile to determ ine whether it

was the car she had seen on the night of the m urder. No o ne reviewed the contents of the stolen cell phones recovered fro m Fo r d’s car. Though one witness reported hearing

m ultiple s h o ts, the only bullet found was the one that killed Mart inez. No gun or shell casings w ere ever found. T here

was g un s h ot residue on the inside of the driver’s side door, but there was no residue o n the window seal of the door or on Mart i n ez’s clothes. The only DNA found at the scene belonged to Martinez.F O R D V

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B. Attorneys’ Argum ents

In his closing argum ent, the pr o secutor contended that Martinez’s m

urder was “a robbery gone bad.” His theory was that Fo rd had put his left hand o n the o utside o f the d river’s side door, had reached through the partiall y opened d river’s windo w with his right hand, and had shot Martinez in the head:

There is com

pelling 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 fir e arm in their right h and, would h ave shot and killed the victim

. . . . No unusual contortion w ould have to t ake place for a person o f 5 ' 8" to stick their hand in there and fire.

The prosecutor further argued that Ford’s recorded telephone conversation wi th his g irlfriend 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 Martine z a s he sat in the driver’s seat with Dr. Hogan’s testim ony, which required the gun t o h av e b een “at least” three feet away. The prosecutor also did not try to reconcile his contention with Johnson’s testim ony that she h ad heard the sound of a shot and broken glass and with the photograph of the SUV showing that two rear side p a s s e nger windows had been shattered.F O R D V

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In her responsive closing argum ent, Ford’s attorney contended that the fingerprint identification was unreliable. She em phasized the poor quality of the latent palm print lifted from the SUV by Zam o ra and contended that the unqualified fingerprint analysts were not to be trusted. She c ontended that in h is telephone conversation with his g irlfriend, Ford

was “talking about the fact that he’s in custody for a gun and thank God, thank G od he d idn ’t kill anyone.” She characterized Ford’s F acebook post as “talking sm ack to

som eone behind a computer screen.”

At the end of his rebuttal closing argum ent, the prosecutor told the jury:

This idea of this presumptio n o f innocence is

over. Mr. Ford had a fair trial. W e were here for three weeks where

. . . he gets to crossexam ine witnes ses; also an opportunity to present inform ation through h is lawy er. He had a fair trial. This system is not perfect, but he had a f air opportunity and a fair trial. He’s not presumed innocent anymore.

(Em phases added.) Ford’s attorney objected, “That m isstates the law.” The court held a sideb ar. The court then said in front of the jury, “All right. The objection is o verruled.” The prosecutor resum ed, “

And so w e’re past that point .” The jury began its deliberations shortly thereafter, on the sam e day.

C. Jury Deliberations

On the second day of deliberations, the jury sen t o ut a written question: “If som eone believes that the defendant was presen t a t the tim e of the shooting and was an activeF O R D V

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participant in the attem

p ted robb ery, but was not the actual shooter, does that im

ply guilt o f either th e first or seconddegree m urder charge? ” The court comm ented to the attorneys, “It’s certainly an unusual q uestion, given there was really no one [ who] argued that there was som eone else while the defendant was present.” The prosecutor sugge sted the question m ight have reflected the fa ct that two other people had been d escribed in the testim o ny, “although I didn’t even

m ake any argum ents about them at all in my closing o r that they h ad any involvement.” W ith the agreem ent of both counsel, the court sim

ply referred the jury to the instructions already given. The jury also requ e s t ed a readback o f Johnson’s testim ony.

On the fourth day of d eliberations, Friday, August 24, the jury reported that they we re “hopelessly deadlocked,” with

one juror holding out for acquittal. After taking testim ony from jury m em

bers individually, the court sent them back to deliberate further.

The following Tuesday, August 28, the jury returned a unanim ous verdict that Ford wa s guilty of first-degree

m urder. The jury re p o rt ed that they were “hopelessly deadlocked” o n the three fir e arm enhancem ents. The court inquired as to the fire arm enhancem ents. It learned that the final vote on the first enhan ce me n t —“personal use of a firearm during the comm ission of the crime ”

—h a d been

seven to five. It did not learn whether the guilty or not-guilty votes predom inated. The court declared a m istrial as to all three firearm enhancem ents.F O R D V

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II. Post-Trial Procedural History

Ford appealed his conviction to a California Court o f Appeal. The court wrote, “According t o Ford, the prosecutor’s comm ents about the presum ption of inn o cence

m isstated the law and deprived him of a fair trial.”

The Court of Ap p eal identified a conflict am ong the California Courts o f Appeal with respect to the presum ption of innocence. Seve r a l Co urts of Appeal had held that there

was no prosecutorial m isconduct when the prosecutor told the jury that the presum

ption of innocence n o longer applied once sufficient evidence of guilt had been presented. F or exam ple, in People v. Goldberg
, 161 C al. App. 3d 170, 189 (1984), the

c o urt affirm ed the conviction and found no prosecutor i al

m is c o n duct in a case in which the prosecutor had said in closing argum ent, “[O]nce you’ve heard this case, once the

case has been pr o v en to you —and that’s the stage we’re at

now —the case has been proved to you beyond any reasonable doubt. I m ean, it’s overwhelm ing. There is n o more presumption of innocence. ” (First em phasis added.) B ut a different Court of Appeal later reached a contrary conclusion. In People v. Dowdell
, 2 27 Cal. App. 4th 1388, 1407 (2014), the prosecutor twice told the jury during closing argum ent, in light o f the strength of the State’s evidence, that “[t]he presum p t io n of innocence is over.” The court in Dowdell distinguished G o ld

berg and ruled that defense counsel should have objected because the pro s ec ut or m isstated the law, but it held, on the record before it, that the error was harm less.

In the case before us, the Court of Appeal de c l i ned to reach the question whether the prosecutor had m isstated the law. Assum ing without deciding that the prosecutor had done
so, the court held that any error was harm less: “W e need notF O R D V

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r e s olve any conflict b etween Goldberg [and other cases] o n the one hand, and Dowdell on the other because we conclude any assum ed error is harm less under either the state ([People

v. ] Watson
, [(1956)] 46 Cal.2d 818[, 836]) or fed e ral constitutional standard (see Chapman v. California (1967) 386 U.S. 18, 24).”

The California Suprem e Court denied Ford’s p etition for review in a one-line order. Ford then sought state habeas in Ca l ifornia Superior Court, claim ing, inter alia, that the prosecutor h ad comm itted m isconduct by telling the jury that “the presum

ption of innocence is over.” The Superior Court did no t r e ach the m erits of the claim because it had been raised and rejected on direct appeal.

Fo rd then sought f

ederal habeas relief under 28 U .S. C. § 2254. He m ade s ev e r a l claim s: (1) the prosecutor’s statem ents during closing argum ent that the “presum ption o f innocence is over” and “petitioner is not presum ed innocent anym ore” v iolated due process and were not harm less; (2) the trial court’s response to a question asked by the jury violated du e process; (3) defense counsel provided ineffective assis t an ce in failing to o bject to the trial court’s response to the jury’s q

uestion; (4) it cannot be determi n ed whether the jury convicted Ford on a legally incorrect theory; (5) im p roper adm ission o f th e Facebook post; and (6) cum ulative error. A m agistrate jud g e recomm ended deny ing Ford’s petition and granting a Certificate o f Appealability o n Claim s (2), (3), and (4). The district judge adopted the m agistrate judge’s Report and Recomm endation in full.

Ford appealed the denial of Claim s (1) and (4). W e asked the St a t e to brief Claim (1) and now grant a Certificate o fF O R D V

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Appealability a s to that claim

. W e reverse the district court on Claim (1). W e do not reach Claim(4).

III. Standard of Review

In order to obtain habeas relief i n fe d eral court, petitioners m

ust show that the st ate court proceedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,

as determ ined by the Suprem e Court of the United States; o r

. . . resulted in a decision that was based on an unreasonable determ ination of the fa ct s i n light of the evidence presented in the S tate court proceeding.” 28 U.S.C. § 2254(d); Williams

v. Taylor
, 529 U.S. 362, 4 02 ( 20 0 0). W e defer to the last reasoned decision of the st ate court. Ylst v. Nunnemaker
, 5 01 U .S. 797, 803 (1991); Mann v. Ryan
, 828 F.3d 11 4 3
, 1151 (9th C ir. 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 statem e nts d

uring closing argum ent that the presum ption o f innocence was now “over” am o unted to prosecutorial

m isconduct in violation of due process unde r Darden v. Wainwright
, 4 77 U.S. 168 (1986). Th e Ca l i f ornia Court o f Appeal declined to reach the substantive question of whether the prosecutor m isstated the law. It did not m ention Darden

. I t h eld only that any presum ed error was harm less bey o nd a reasonable doubt under Chapman

. T h ere is n o s tate-court decision to which we can d efer in d eterm ining wh ether the prosecutor m isstated federal law and, if so, whe th er thatF O R D V

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m isstatem ent violated due process un d e r Darden

. W e therefore review the Darden claimde novo.

For the reasons that follow, we hold that the prosecutor’s statem ents violated due process under Darden

. Prosecutorial

m isconduct under Darden includes m isstatem e nts o f l a w

. S ee Deck v. Jenkins
, 814 F .3d 954, 985 (9 th Ci r

. 2 016) (finding Darden error where “the prosecutor g ave incorrect direction to the jury about an elem ent of Californi a l aw under which Deck was convicted”). I m proper prosecutorial statem ents vio late d ue process if they “so infect[] the trial with unfairness as to m ake the resulting conviction a denial of d ue process.” Da rd

en , 477 U.S. at 1 81 (citation om itted). Prosecutorial m isconduct within the m eaning of Darden does not require improper m otive on the part of the prosecutor; it requires onl y an im

proper statem ent. But such m isconduct “rises to the level of Darden error o nly if there is a reasonable p robability that it rendered the trial fundam entally unfair. ” Deck, 814 F.3d at 985.

In stating th at the presum ption of innocence was n ow “over,” the p rosecutor m isstated federal law. The presum ption of innocence i s “the undoubted law, axiom atic and elem entary”; the p resum ption of innocence is “vital and fundam e n t a l

. ” Coffin v. United States
, 156 U.S. 4 3 2, 453, 460 (1895). The presum

ption is “a basic com

ponent o f a fair trial under our system o f crim inal justice.” Estelle v. Williams
, 4 25 U.S. 501, 5 03 (1976). Its “enforcem ent lies at the foundation of the adm inistration of our crim inal law.” Coffin
, 156 U.S. at 453; see also Reed v. Ross
, 468 U.S. 1, 4 (1984).

The Suprem e Court has repeatedly m ade clear that crim inal defendants lose the presum ption of innocence onlyF O R D V

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after they have been convicted. See
, e.g. , Herrera v. Collins
, 506 U.S. 39 0, 3 99 (1993) (“Once a defendant h as been afforded a fair trial and convicted of the offense for which he

was charged, the presum p tion of innocence d i sappears.”) (em phasis added); Delo v. Lashley
, 507 U.S. 272, 278 (1993) (“Once the defendant has been convicted fai r l y in the guilt phase of [a capital] trial, the presum ption of innocence disappears.”) (em

phasis added); B etterman v. Montana
, 136 S. Ct. 1609, 1618 (2016) (a convict i o n “ term inates the presum ption of innocence”).

Under Darden
, we ask whether “there is a reasonable probabili ty ” that the prosecutor’s m isstatem ent of law “rendered the trial fundam entally unfair” and thus vio lated due p rocess. Deck
, 814 F.3 d at 985. In Hein v. Sullivan
, 601 F. 3d 8 97 (9th C ir. 2010), we listed the m u ltiple factors considere d b y the Suprem e C ourt in Darden in determ ining whether im

proper prosecutorial statem ents rise to the level o f a due process violation. W e wrote:

The D arden f

actors— i

. e

. , the weight of the evidence, th e prom inence of the comm ent in the context of the entire trial, whether th e prosecution m isstated th e evidence, whether
the judge instructed the jury to disregard th e

comm ent, whether the co mment was invited by d efense counsel in its summ ation and whether defense counsel had an adequate opportunity to rebut the comm ent—r equire courts to place im

proper argum ent in the context of the entire trial to evaluate whether its d am agin g effect was m itigated o r aggravated.F O R D V

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Id. at 914. “In essence, what Darden requires reviewing courts to consider appears to be equivale n t to evaluating wh e ther there was a ‘reasonable probability’ of a different result.” Id

. at 914–15; see also Deck
, 814 F.3d at 9 7 9. The reasonable p robability test is not whether Ford “would m ore likely than not have received a different verdict” absent the prosecutor’s m isconduct. 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.

W e h o l d that the prosecutor’s repeated statem ent during closing argum ent that the presum ption o f inn o cen ce n o longer applied constituted D arden error. W e take in turn the

“Darden factors” listed in Hein

.
“The weight of the evidence ” ag ainst Ford, H ein , 601 F .3d at 9 14, was not great. As recounted above, the evidence was circum stantial, incom plete, and in conflict. While there w as som e inculpatory evidence (the partial p alm print, the stolen ce ll phones, Ford’s conversation w ith his girlfriend, and Ford’s Facebook post)
, no one saw the shooting. Neither of the two w itnesses who had seen three young black m en on the str eet shortly before the shooting could identify Ford. The m anner of shooting hy pothesized by the prosecutor conflicted with h is expert’s testim ony the gun had been at least three feet away from Martinez when it was fired. The hypothesized m anner of shooti ng was also inconsistent with J ohnson’s testim ony 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 wereF O R D V

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“hopelessly d eadlocked.” The court sent them ba c k to deliberate further. When the jury returned, their answer was internally inconsistent. It was uncontested that Martinez h ad been killed with a single shot to the head. Ford ha d been charged with shooting and killing Martinez. The jury f ound Ford guilty of the m

urder charge. But the jury was split with

a vote of seven to f

ive on whether Ford had used a firearm in killing Martinez.

Th e “prom inence” o f the prosecutor’s statem ents, id

. , co ul d hardly have been greater. During the course o f his closing argum ent, the p rosecutor h ad repeatedly said that the

s tate had the burden o f p roof to show guilt b e y o n d a reasonable doubt. But then, at th e e n d of his rebuttal in his closing argume n t , the prosecutor stated three tim es that the presum ption of innocence no l o nger applied. The prosecutor’s rebuttal was the last thing the jury heard from either of the attorneys. T h e jury retired to begin deliberations later that sam e day.

A lth o ugh the pro secu

to r d id n o t “misstate[ ] t

h e e v id en ce, ” id.
, h e m isstated the law. He did so three tim es, in the space of a few m om ents.

The judge did n ot “instruct[] the jury to disregard the

comm ent.” Id. Quite the opposi t e

. When Ford’s attorney objected to th e p r osecutor’s m isstatem ents, the judge held a sidebar and then o verruled the o bjection. A written instruction told the jury about th e e x i stence of the presum ption of innocence: “A defendant in a crim inal c ase is presum ed t o b e innocent. This p resum ption requires that the People prove a defendant guilty beyond a rea sonable doubt.” However, the written instruction did not tell the jury when the presum

ption applied and when it was “over.” TheF O R D V

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judge supplie d th at instruction. When he overruled the defense’s objection to the prosecutor’s m isstatem ents , the judge told the jury, in effect, th at th e presum ption o f innocence w as “over” before they retired to begin deliberations.

Ford’s attorn e y neither “invited” the prosecutor’s

m isstatem ents, nor was she g iven “an adequate opportun ity to rebut” them

. Id. The prosecutor did not state in his initial closing argum ent that the presum ption of innocence was “over.” Had he done so, Ford’s attorney c o uld have

em phatically—and c orrectly—stated in her responsive closing argum ent that the presum ption of i nn ocence lasts unless and until a defendant is convicted. Instead, the prosecutor m ade his m isstatem ents in rebuttal. At that point, Fo rd’s attorney could only m ake an objection, which th e judge im properly overruled.

W e conclude that there was a reasonable probability of a different outcom e in this thin, circum stantial case had the prosecutor n o t mi sstated the law. Therefore, we hold under Darden that the prosecutor’s error violated due process.

B. No Need for a Separate Prejudice Determ ination

Federal habeas relief is available only if there w as “actual prejudice” resulting from an error. Davis v. Ayala
, 576 U.S. 2 57, 267 (2015) (citation om itted); Deck
, 814 F .3d at 985. On collateral review, we determ ine prejudice by applying the h arm lessness standard articulated in Brecht v. Abrahams o n , 507 U.S. 61 9 (1993), whether a constitutional violation h ad

a “substantial and injurious effect or influence in determ ining the jury’s verdict.” Id. at 623 ( qu o ting Kotteakos v. United States , 328 U.S. 750, 776 (1946)).F O R D V

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In Darden cases, prejudice is incorp orated into the analysis of the due process violation it s e l f. There is a d ue process violation under Darden when there was a “reasonable probability of a different result” absent the prosecutor’s

m isconduct. Hein
, 601 F.3d at 914–15 (internal quotation

m arks om itted). The Suprem e Court explained in K yles that

a determ ination that there is a “reasonable probability” of the different outcom e “necessarily entails the conclusion that the suppression m

ust have had a ‘substantial and injurious effect

o r influence in determ ining the jury’s verdict.’” Kyles
, 514 U.S

. at 435 (quoting B rec ht
, 5 07 U.S. at 623). Once there has been a determ ination that absent the error there was

a “reasonable probability” o f a d iffe r e nt outcom e, the error “cannot subsequently be found h arm less under Brecht .” Id. at 436.

C. AEDPA Deference

On direct appeal, the California Court of Appeal declined to decide whether the prosecutor had mi s stated the law. Assum ing without deciding that he h ad done so, the C ourt o f Appeal held under Chapman that any error was “harm less beyond a reasonable doubt.” Chapman
, 386 U.S. at 24. The Court of Appeal did not m ention D arden and m ade no holding with respect to whether th e re was a “reasonable probability” that the prosecutor’s m isstatem ents affected the outcom e of the proceeding.

A determ ination of prejudice constitutes an “adjudication

on the m erits” for purposes of triggering AEDPA deference. See Davis
, 576 U.S. at 269 (holding that the state co urt ’s determ ination of harm lessness “undoubtedly c o n s titutes an

a d judication of [petitioner’s] constitutional claim ‘on th e

m erits’”). W e recognize, of course, that the Chapman test isF O R D V

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m ore favorable to Ford than Darde n ’ s “reasonable probability” test. A determ ination that an error was harm less under Chapman w ould therefore necessarily entail a determ ination that the error did not have a “ reasonable probability” of changing the result under Darden

. But under AEDPA, if a state court articulates its reaso n i n g , i t is only that reasoning that receives deference. See Wilson v. S ellers
, 1 38 S. Ct. 1188, 1192 (2018) (instructing courts to “ l o o k through” a summ ary a ffirm ance for the relevant rationale provided b y the lower court); Ylst
, 501 U.S. at 803; cf. Harrington v. Richter
, 562 U.S. 86, 98 (2011). The Court o f Appeal’s reasoning w as based on Chapman

. W e ther efore ask whether the state court was unreasonable in holding that the prosecutor’s m issta t eme nt o f the law was “harm less beyond a reasonable doubt” under Chap ma n

. W e conclude that it was.

As we outlined in detail above, this was a very close case. The evidence against Ford was circum stantial, incom p lete, and in conflict. The jury was un able, despite extensive deliberations
, t o reach an internally consistent decision on Ford’s guilt. The jury deliberated for four d ays and reported to the court that it was “hopelessly deadlocked.” After further deliberation, the jury returned a verdict that Ford was guilty of m

urdering Martinez by shooting him in the head, but hung o n the question o f whether Ford had used a firearm

. In these circum stances, we conclude that it was “objectively

unreason able” for the Court of Appeal to conclude under Chapman that the prosecutor’s m isstatem ents of the law were harm less beyond a reasonable doubt.F O R D V

. P E ER

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Conclusion

W e hold that the prosecutor’s repeated stat em ents, endorsed by the trial judge, that the presum ption of innocence

n o l o n ger applied v iolated due process under Darden

. A holding of a due process violation under Darden necessarily entails a conclusion that the p ro s ecutor’s m isstatem ents of the law were pr e

j u d ic i a l. W e further hold that the Court o f Appeal unreasonably concluded under Chapman that the prosecutor’s m isstatem ents of the law w ere harm less b eyond

a reasonable doubt. W e reverse the decision of the d istrict court and rem and with instructions to conditionally g rant the writ, subject to the State’s retrying Ford within a reasonable tim e not to exceed 180 days.

REVERSED and REMANDED.

R. NELSON, Circuit Judge, dissenting:

The m ajority vacates Keith Ford’ s first degree felony

m urder conviction on habeas review only by i g n or i ng the highly deferential standard we owe to the California Court o f Appeal’s harm lessness conclusio n under the Antiterrorism and E ffective Death P enalty Act (“AEDPA” )

. Instead, the

m ajority adopts a “broad exercise o f supervisory power” over

a state court’s trial proceedings, inconsistent with the narrow l e g al 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 d enial o f the habeas petition.F O R D V

. P E ER

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Misstatem ents of the law by a prosecutor only am ount to a due process v iolation under Darden if they render the trial fundam entally unfair. In their p rope r c ontext, the prosecutor’s closing argum ent statem ents regar ding the p resu m p tio n o f inn o cen ce m erely em p h asized th e g o v e r

n m ent had carr i ed its burden of proving Ford’s guilt beyond a reasonable d oubt. There is no reasonable probability that the jury was confu s e d about this presum ption, given the prosecutor’s repeated reaffirm ation of th e presum ption and the trial court’s repeated, explicit instructions to the jury reg ar di n g both the governm ent’s burden of proof and the presum ption o f i nn ocence. These instructions were m ore th an s ufficient to rem edy any potential unfairness that m ay have resulted from the isolated comm ents. And even if there

was Darden error, the m ajority m isapplies AEDPA deference in finding that the California Court of Appeal’s harm lessness conclusion wa s objectively unreasonable. Therefore, I respectfully dissent. 1

I

A b r i e f review of the relevant background is warranted. Ruben Martinez was shot at point blank range i n h i s car, while he waited to take his girlfriend on a date, after quickly

1 The m ajority grants a Certificate of Appealability as to Ford’s claim that the prosecutor’s statem ents regarding the p resum ption of innocence violated due process. Majority at 1 8–19. I would deny the Certificate o f Appealability because Ford has not m ade a “substan tial showing o f the d e n ial of a constitutional right,” 28 U.S.C. § 2253(c)(2). See Sla c k v

. McDaniel
, 529 U.S. 473, 484 (2000) (“Where a district court has rejected the constitution a l c laim s on the m erits, the showing required to satisfy § 2253(c) is stra ightforward: The p etitioner m ust dem o nstrate t

hat reasonable jurists would find the district court ’s assessm ent of the constitutional claim s debatable or wrong.”).F O R D V

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dropping her off at her house. After a thr e e-week trial, petitioner Keith Ford was convicted of first degree felony

m urder.

During trial, the jury heard that Martinez had washed his

car just hours before h e picked his girlfriend up for the date and h is car was “c l e an and shiny.” People v. Ford
, No. A137496, 20 14 WL 4 4 46166, at *1 (Cal. Ct. App. Sept. 10, 2014). A fingerprint exam iner testified that after the m urder, “a latent palm print on th e d river’s side of the door o f Martinez’s SUV, just b eneath th e window[,]

. . . m atched Ford’s left palm print.” Id. at *2. The exam iner “was certain ‘both im pressions were m ade by the sam e palm .’” Id. Ford

never exp l a i n ed how his left palm p rint was on Martinez’s
car, in the exact location consistent with a right-handed m an leaning into the d

river w indow, p articularly where the car h ad just been washed.

The jury also heard that a white car was seen driving in the sam e d irection a s Martinez and “m ade an abrupt U-turn directly in front of Martinez’s car” m om ents before Martinez stopped at his girlfriend’s house and just before Martinez was

m urdered. Id. at *1. Ford drove a white car.

The jury also heard that three y oung African Am erican

m en w ere w alking toward Martinez as he waited in his car for his girlfriend. One h ad short hair cut close to his scalp. Ford is African Am erican and at the tim e was 23 years old, h ad short hair and was the approxim ate height described.

Th e jury also heard that as Martinez waited f or his girlfriend, he was o n his cell phone, which was v i s ible through his car window. A f ew d ays after the m

ur de r, Ford

was stopped by a detective and six stolen cell p h o n es wereF O R D V

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found in the center console of Ford’s car. Ford indic a t e d to the detective that on the night Martinez was m urdered, Ford

was at his m other’s house in Vallejo, about three m iles from where Martinez was shot.

The jury a l s o heard that four m onths after Martinez was

m urdered, Ford was in jail f

or a n unrelated firearm possession charge. Ford called h is girlfriend f rom jail and said, “‘luckily I aint in here for m

urder’” and noted that he knew he should not carry guns because “‘the only thing you gonna get o ut o f

a gun is you gonna throw down wi th i t o r you gonna shoot

som e b o dy with it.’” Id. Several m onths after Martinez’s

m urder, Ford posted on Facebook comm ents about being suspected of a m

urder and described in detail how he would conduct a murder.

Before closing arg ume n t, the state trial court orally instructed the jury r e garding the presum ption of innocence and the governm ent’s burden to p rove it s case b eyond a reasonable doubt. The jury was instructed to form no opinion about the case unt i l after jury deliberations began. And the jury w as instructed to follow the law as detailed in the written jury instructions and to disregard any of counsel’s comm ents that m ay conflict with the jury instructions.

In closing, the prosecutor repeatedly rem inded the jury that the governm ent bore the burden to prove its case b eyond

a reasonable doubt. The prosecutor then walked through the evidence detailed above. In r e b uttal, the prosecutor stated, “This idea of this presum

ption of innocence is over.

. . . He’s not presum ed innocent anym ore.” This dr e w an o bjection from defense counsel, overruled by the trial court b ecause the jurors have “been rem inded continuously that they’re not to form or express any opinions until after they deliberate withF O R D V

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their fellow jurors, so I don’t th i nk th ere’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 presum pti o n o f innocence, which we r e taken back into the jury room for deliberations. Defense coun s el m ade no request for any additional jury instruction on the presum ption of innocence.

The jury h eard evidence m ore than sufficient to support, beyond a reasonable doubt, Ford’s first d egree felony m urder conviction. The California Court o f Appeal affirm ed Ford’s conviction on dir e ct appeal, finding that any alleged prosecutorial m isconduct w as harm less. The California Suprem e Court denied review. The federal m agistrate judge

recomm ended denial of F ord’s h abeas p etition and the district court adopted the m agistr ate’s recomm endation in full. While the district court certified three questions for appeal, the d istrict court d i d not certify the question regarding potential prosecutorial m isconduct which the m ajority relies

on to reverse and vacate F ord’s first degree felony m urder conviction.

II

The m ajority h olds that the prosecutor’s comm ents “during closing argum ent that the presum ption of innocence

no longer applied constituted Darden error.” Majority at 22. In my view, however, the prosec utor’s isolated comm ents, taken in full context of the closing st atem ents and jury instructions, w ere not m isconduct that “so infe cted the trial with unfairness as to m ake [Ford’s] conviction a denial of d ue process” under Darden
, 477 U.S. at 181 (internal quotationF O R D V

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m arks and citation o m itted). By che rry -picking and

exam ining the p rosecutor’s comm ents in isolation, the

m ajority disreg ard s th e S u p rem e Court’s adm onition that “the argum ents of counsel

. . . m ust be judged in the contex t in which they are m ade.” Boyde v. California
, 494 U .S. 370, 385 (199 0 ). The m ajority m isconstrues the prosecutor’s

comm ents rather than interpreting them in context of his full closing and rebuttal argum ents. In context, the comm ents do not rise to the level of prosecutorial m isconduct. But even

assum ing a risk of juro r co n fusion from the prosecutor’s

comm ents, no reasonable probability exists that F ord was deprive d of a fair trial in light of the trial court’s oral instruction to the jury before the p rosecutor’s closing, and its written instruction—after the prosecutor’s closing and taken into the j ury d eliberation room —regarding the presum

ption of innocence.

First, “a court shoul d n o t lightly infer that a prosecutor intend[ed] an am

biguo u s r e m ark to have its m ost dam aging

m eaning or that a jury, s i tting through lengthy exhortation, will draw that m eaning fr o m the p lethora of less dam aging interpretations.” Donnelly v. DeChristoforo
, 416 U.S. 637, 647 (1974). T h e m ajority reaches its conclus ion only by skewing the evidence and inferences in the light m ost favorable to Ford

. I t thus infers that the jury d rew the m ost dam ag ing interpretation of the challenged comm ents, rather than the m ore likely, less dam aging interpretation. I n context, the p rosecutor argued in closing that the governm ent h ad me t its b urden o f p roving its case beyond a reasonabl e doubt, thereby overcom ing th e presum ption of innocence. His challenged comm ents were not (as the m ajority concludes) inviting the jurors to d isregard the presum ption o f innocence when they retired to the deliberation room

.F O R D V

. P E ER

Y 33

The p r o secutor m ade num erous statem ents supporting the

m ore reasonable i nt erpretation (largely ignored by the

m ajority). For instance, the prosecutor introduced his closing argum ent, noting, “I’m going to go back over the facts of this

c a se and show you why I h ave proven beyond a reasonab le doubt that the d efendant comm itted m urder in this case

. . . . ” He hewed closely to this them e, repeating, “I want to tell you why it is that I have proven to y ou beyond a reasonable doubt that the defe ndant in this case comm itted an act that caused the death of Ruben Martinez

. . . .” The prosecutor returned to this refra i n r epeatedly throughout his closing argum ent, stating the following:

• “Let m e tell you

. . . why it is that I have proven to you beyond a reasonable d oubt that the defendant is guilty”;

• “My burden of proof in the case to prove the charg e that Mr. Ford is charged with is proof beyond a reasonable doubt”;

• “In com

b ination with the other inform ation, that’s proof b eyond a reasonable doubt

. . . . I have never shied away f

rom what my standard o f proof is in this
case, but it’s not an im

possible standard. It’s proof beyond a reasonable doubt”;

• “[W ]hen you

. . . follow all the evidence an d you follow all the law, you ’r e going to reach the sam e conclusion that I asked y o u to reach at the beginning of this case that the defendant is guilty of m urder”;

• “[Y]ou did all m ake that prom ise at the beginning and I will h old you to that prom ise, if I prove my caseF O R D V

. P E ER

Y 34

beyond a reasonabl e doubt, that you would not hesitate for a second to convict the defendant.”

On rebuttal, the prosecutor reiterated that defense counsel “doesn’t h ave to present any evidence. It is my bu rden of proof

. ” (em phasis a d de d ). He even called the jurors’ attention to the written instructions they would take with them into the deliberat i o n ro o m , inviting them to “just read the [reasonable doubt] instruction itself and

. . . l oo k at the instruction and what it says in particular.”

Finally, just before m aking the challenged statem ents, the prosecutor walked through the evidence and reiterated, “I’ve p rovided you with all the inform ation that you need to fe el the abiding conviction in the truth of these charges.” Each o f his points (including the challenged state me n t s) com bine to form an unrem arkable overarching argum ent: the evidence o f defendant’s guilt wa s so strong that the prosecutor h ad successfully proved his case beyond a reasonable doubt and thus overcom e the presum ption of innocence. 2 The m ajority fails to show any reasonable likelihood that these statem ents, taken together, m isled the jurors or caused them to believe the p resu m p tio n of innocence term inated before they h ad 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 Suprem e Court held the Due

2 By repeatedly em

phasizing the governm ent’s burden of proving guilt “beyond a reasonable doubt,” the prosecutor sim ultan eo u s ly

em phasized i t was his burden t o overcom e the presum ption of innocence
to which Ford was entitled. T his is because the governm ent’s burden to prove a defendant’s guilt beyond a reasonable doubt is closely l inked with the presum

ption of innocence. See Cool v. United States
, 409 U.S. 100, 104 (1972); S

chultz v. Tilton , 659 F.3d 941, 943 (9th Cir. 2011).F O R D V

. P E ER

Y 35

Process Clause does not require a jury i ns tru c tion on the presum ption of innocence at all. Id. at 789–90. In Whorton
, the jury was i n s tru c ted that they “could return a verdict o f guilty only if they found beyond a reasonable doubt” that the defendant was guilty of the acts charged. Id. at 787

. This instru ction alone—even without the presum ption o f i n n o c e n c e i n s t ru c t i o n

—w a s d e e m e d c o n s t i t u t i o n a l l y sufficient. See id. at 789–90. Here, the trial court exceeded the standard in Whorton

. Not onl y did the prosecutor repeatedly em

phasize that his burden was to dem o n s trate Ford’s guilt b eyond a reasonable doubt, see supra at 33–34, the jury was also f

orma l ly i nstructed by the trial court that Ford was entitled to a presum ption of innocence and that this presum ption requires proof of gui lt beyond a reasonable doubt. Thus, as in Whorton
, weighing th e prosecutor’s challenged statem ents against “all the instructions [provided] to the jury” an d “ th e argum ents of counsel,” Ford was not “deprived

. . . of due process of law in light of the totality o f the circum stances.” 441 U.S. at 789–90. 3

The surrounding context of the prosecutor’s statem ents als o e xplains the trial court’s d ecision to overrule defense counsel’s objection to the contested statem ents. The court undoubtedly knew the p r e s umption of innocence continued until jury deli b e r ations, and also understood what the prosecutor m eant and reasonably determ ined the comm ents in context presented no risk of jur o r c o n fusion. The court stated (outside the presence of the j ury), in response to

3 Although not c o ntrolling, the California S uprem e Court has twice

re j e c ted the specific argum ent that a prosecutor’s mi sstatem ent of the presum ption of innocence in closing was constitutional D arden error. See People v. Booker
, 245 P.3d 366, 401–02 (Cal. 2011); People v. Panah
, 107 P.3d 790, 834–35 (Cal. 2005).F O R D V

. P E ER

Y 36

counsel’s objection: “[The jurors have] been remi nd ed continuously that they’re not to form or express any o p inions 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 b een explicitly instructed orally on the presum

ption of innocence and the written instructions would be taken with them into jury deliberations. In short, no reasonable juror would interpret the prosecutor’s statem ents, when considered in context, consistent with the m ajority’s isolated gloss. Despite indications the jurors were confused

o n other issues, there is no suggestion any single jur or wa s confused on the presumption o f innocence. Indeed, the jury acquitted Ford on separate firearm enhancem ent allegations, which underm ines the m ajority ’s conclusion that the jurors believed th e p r e sum

ption o f innocence was over during the prosecutor’s closing.

Second, even assum ing tha t the prosecutor’s statem ents viewed in context ros e t o the level o f a m isstatem ent o f federal law, they did not “so infect[] the trial with unfairness

as to m ake the resultant conviction a d enial of due p rocess.” Da rden
, 4 7 7 U.S. at 181 (internal quotation m arks and citation om itted). “[E]ven if the [prosecutor’s] comm ent[s are] understood as directing the jury’s attention to inappropriate con siderations,” that does not b y itself establish

a due process violation under Darden absent som ething m ore to show that the comm ents prejudiced the defendant. See Parker v. Matthews
, 5 67 U.S. 37, 47 (2012) (per curiam ). Courts m ust consider “whe th e r the jury was instructed to decide solely on the basis of the e v i d ence rather than counsel’s argum ents, and whether the state’s case was strong.” Furman v. Wood
, 190 F.3d 1 002, 1006 (9th Cir. 1999); see also Allen v. Woodford
, 395 F.3d 979, 998 (9th Cir

. 2 0 0 5). Here, the state trial court did not violate d ueF O R D V

. P E ER

Y 37

process under Darden because the court’s instruc t i o ns elim inated any “reasonable probability that [the prosecutor’s statem ents] rendered the trial f undam entally unfair

. ” See Deck v. Jenkins , 814 F.3d 954, 985 (9th Cir. 2016).

Before closing argum ents, the trial court properl y orally instructed the jury that the defendant was presum ed innocent

a nd that the prosecution h ad to prove each elem ent of th e charged offenses beyond a reasonable doubt. T he court i n s tructed, “You m ay not convict the defendant unless the People have proved his guilt b e y ond a reasonable doubt.” The court also inform ed jurors that they m ust apply the law

as explained by the court’s instru c tions, and that they m ust disregard any comme n t s or argum ents by counsel that conflicted with the court’s instructions. Further, the court admo n i sh e d the jurors that “[n]othing that the attorneys say is evidence. I n th eir

. . . closing argum ents, the attorneys discuss the case, but their rem arks are not evidence.” The written jury instru ctions were subsequently taken into the deliberation room

. In light of the written instructions o n the presum ption o f innocence being taken into the jury room , the

m aj o r i ty’s conclusion that the instructions did not indicate when the p resum

ption ceases falls flat. No court has ever required a tem

poral statem ent regarding the presum ption o f innocence, as suggested by the m ajority. See Majority at 23. And the trial court p r oceedings clarify why none was necessary.

T h e m ajo rity contends that when the trial court “overruled the defense’s objection to the prosecutor’s m isstatem ents, the [court] told the jury, in effect, that the p r e s umption o f innocenc e was ‘over’ before they retired to begin deliberations

. ” M a

jority at 24. But there is no reasonable support for the m ajority’s interpretation. And certainly noneF O R D V

. P E ER

Y 38

th a t would com

pel this interpretation o r preclude far mo r e reasonable and less dam aging in t erpretations. As noted,
supra at 30–31, 35–36, the district court reasonably explained that it overruled the objection because the prosecutor’s statem ents h ad caused no harm as the jurors h ad been repeatedly rem inded not to form any o pinion until after they deliberated. Moreover, if the majority’s interpretation were correct, then the tr i a l court would not have sent the written instruction regarding the p resum ption of innocence into the jury room

.
Ultim ately, by dism issing these instructions—both oral and written, and tem

porally bookending the challenge d

comm ents—as inadequate, the m ajority disregards that we “presum e jurors follow the court’s in s tructions absent

e x traordinary situations.” See Tak Sun Tan v. Runnel s , 413 F.3d 1101, 1115 (9th Cir. 2005); see also Allen
, 395 F.3d
at 998 (although prosecutor’s statem ent was m isconduct, “given the trial court’s instruction that statem ents by counsel

were not evidence, and given the weigh t of th e evidence against him
, the prosecutor’s comm ents did not deprive Allen of a fa i r trial”); United States v. Necoechea
, 986 F.2d 1273, 1280 (9th Cir

. 1 9 93) (holding the prosecutor’s im proper

rem arks in closing argum ent did not constitute a m iscarriage of just ice where the court g ave a general instruction that attorneys’ argum ents w ere n ot evidence in the case). “[P]rosecutorial m isrepresentations

. . . are not to be judged

as having the sam e force as an i n struction from the court.” Boyde
, 494 U.S. at 384–85. B y disregarding the presum ption that jurors follo w the court’s instructions, and g iving the prosecutor’s isolated statem ents sign i f icantly m ore force than those instructions, the m ajority errs.F O R D V

. P E ER

Y 39

For these reasons, there i s n o reasonable likelihood the jury m isunderstood the prosecutor’s comm ents and conv icted Ford without finding guilt beyond a reasonable doub t

. Th e state trial court did not violate due process under D arden

.

III

In concluding th at the California Court of Appeal’s finding of harm lessness was “objectively unreasonable,” the

m ajority m isapplies AEDPA deference. Under AEDPA, we cannot o rder h abeas 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 determ ined by the Suprem e Court of the United States; o r

. . . resulted in a decision that was based on an unreasonable determ ination of the facts i n l i g ht of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

“[A] state court deci s i o n is contrary to our clearly established precedent i f the state court applies a rule that contradicts the governing law set forth in [the Suprem e Court’s] cases or if the state court confronts a set of facts that

are materially indistinguishable from a decis ion of [the Suprem e] Court and nevertheless arrives at a result different from our precedent.” Lockyer v. A n drade
, 538 U.S. 63, 73 (2003) (em

phases adde d ) (internal quotation m arks and citation om itted). Furtherm ore, “an unreasonable application of fe d e r a l law is different from an incorrect application o f federal law.” Williams v. Taylor
, 529 U.S. 362, 410 (2000). This m eans that “a federal habeas court m ay not issue the writ sim ply because that court concludes in its in d e p e ndent judgm ent that the relevant state-court decision ap p lied clearly established federal law erroneously or incorre c t l y.” Id.
at 411. Rather, the state court decision m ust be “objectivelyF O R D V

. P E ER

Y 40

unreasonable.” Id. at 409. “This d ist i n c t ion creates ‘a substantially higher th re shold’ for obtaining relief than de

novo review.” Renico v. Lett
, 55 9 U.S. 766, 7 73 (2010) (quoting Schriro v. Landrigan , 550 U.S. 465, 473 (2007)).

Thus, AEDPA “im

poses a highly d eferential standard for evaluating state-court rulings” and “dem ands th at [they] be given the benefit of the doubt.” Id. (inte rn al quo ta tion m arks and citation om itted). 4 “There m ust b e

4 Our c o urt has struggled to correctly apply AEDPA’s highly deferential stan d ard

. See, e.g. , Sexton v. Beaudreaux
, 138 S. Ct. 2555, 2558 (2018) (per curiam) (“[t]he Ninth Circuit failed to

. . . ap p l y ” the proper standard and instead “spent m o st of i ts opin i o n conducting a de

novo analysis”); Kernan v. Cuero
, 138 S

. Ct. 4, 9 (2 017) (per curiam) (finding “several problem s w ith the N inth Circuit’s reasoning,” including that it fail ed t o r ecognize that “fairmi nded jurists could disagree” about h o w to construe Suprem e Court precedent ( citation om itted)); Davis v

. Ayala
, 576 U.S. 257, 260 (2015) (“The Ninth Circuit’s decision was based

on t he misapplication of basic rules regarding harm less error.”); Lopez v. Smith
, 574 U.S. 1, 6 (2014) (per curiam) (criticizing “the N inth Circuit in particular” for applying a l egal standard n owhe re found in AEDPA); Johnson v. Williams
, 568 U.S. 289, 297 (2013) (holding that “the Ninth Circuit declined to apply t he deferential standard of review” m andated b y AEDPA); Cavazos v. Smith
, 5 65 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 om i tted)); Felkner v. Jackson
, 5 62 U .S. 594, 598 (2011) (per curiam) (“[t]here was sim ply no basis for the Ninth Ci r c uit” to grant habeas relief under AEDPA’s h ighly d ef er ent i a l s t an d ard
, “particularly in such a dism i ssive m anner”); Premo v. Moore
, 562 U

. S. 115, 123 (2 0 11 ) (“The [Ninth Circuit] was wrong to accord scant deference t o counsel’s judgm ent, and doubly wrong to conclude it would have been unreaso n ab l e to f ind that t he defense attorney qualified as counsel for Si xth Am endm ent purposes.”); Harrington v. Richter
, 5 6 2 U.S. 86, 92 ( 2011) ( “[J]udicial disregard [for the sound and es t ab li shed principles of when to issue a writ of habeas corpus] is inherent i n the opinion o f the Court of Appeals for the Ninth Circuit here under review.”);F O R D V

. P E ER

Y 41

m ore than a ‘ r easonable possibility’ that the error was harm ful.” Davis v. Ayala
, 576 U.S. 257, 268 (2015) (quoting Brecht v. Abrahamson
, 507 U.S. 6 1 9
, 637 (1993)). The Brecht standard for determ ining harm lessness r e flects the view that a “[s ]t ate is not to b e put to th[e] arduous task [of

r e trying a defendant] based on m ere speculation that th e defendant was prejudiced by trial e rror; the court m ust find that the defendant was actually p rejudiced by the err o r

. ” 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 harm less error under Brecht is m ore forgiving to state court errors than the harm less error standard the Suprem e C ourt applies on its direct review of state court

co nvictio n s. ” (intern al q

u o tatio n m ark s an d citation o m itted)).

Here, the m ajority does not correctly apply this standard of review—or cite any of these principles—in reviewing the California Court of Appeal’s harm lessness conclusion. F irst, the m ajority f

ram es the question erroneously b y suggesting that our reasonableness rev i e w i s inform ed by Chapman v. California
, 386 U.S. 18, 2 4 (1976), which requires finding a constitutional error to be “harm less be yond a reasonable

Knowles v. Mi r

z ayance , 5 56 U .S. 111, 121 (2009) ( holding the Ninth Circuit’s erroneous issuance of a writ was “based, in large m easure, on its

ap p lication of an im

proper standard of review”); Uttecht v. Brow n , 551 U.S. 1, 2 2 (2007) (“[t]he Court o f Appeals ne g lected to accord” the proper deference to th e s ta t e t rial court); S

chriro
, 550 U.S. at 473 (“The question under AEDPA is not whether a federal court believe s the state court’s determ i n ation was incorrect but wh ether that determ ination was unreasonable—a substantially h igher threshold.”); Woodford v. Visciotti
, 53 7 U.S. 19, 25 (2002) (per curiam) (criticizing the Ninth Circuit f o r “substitut[ing] its own judgm ent for t hat of the state c o urt, in contravention of 28 U.S.C. § 2254(d)”). Despi t e th e Suprem e Court’s repeated adm onitions, the m ajority repeats our court’s sadly regular error.F O R D V

. P E ER

Y 42

doubt.” Majority at 5, 2 6. But C hapman has no relevance to this Court’s habeas review, either directly or through a backdoor gloss on o ur review. In Brecht
, the Suprem e C ourt held the Chapman s t andard too “onerous” for “determ ining whether habeas relief m

ust b e granted.” 507 U.S. at 623. “When a Chapman decision is reviewed under AEDPA, ‘a federal court m ay 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. 2 016). AEDPA’s language is clear. W e review o nly whether the state court decision “was based on an unreasonable determ inat io n of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Moreover, the m ajo r i ty fails to cite a single Suprem e Court case showing the California Court of Appeal’s decision

was “contrary to

. . . cl e arly established Federal law.” 28 U.S.C. § 2254(d). It does no t establish that the Court o f Appeal applied a rule contradicting the governing law, or that the Court of Appeal deviated from Suprem e Court precedent with m aterially indistinguishable facts. S ee Lockyer
, 538 U.S. at 73.

The m ajority also elided aspects o f the trial that cured any prejudicial e ffe c t of the supposed error. This oversight is particularly egregious b ecause it disregards alm ost the entire rationale p rovided by the California Court of Appeal. Th e Court of Appeal wrote four sentences explaining its rationale for finding any error h arm less. Three of those sentences have to do with instructions given to the jury, whic h the m ajority ignores in its harm lessness analysis. The C ourt o f Ap p eal noted:F O R D V

. P E ER

Y 43

The court instructed the jury Ford was presum ed innocent until the contrary was p r o v e n b e y o n d a r e a s o n a b l e d o u b t ( CALCRIM No. 220) and to disregard any conflicting statem ents m ade by the attorneys

co nc erning the law (CALCRIM No. 200). Additi o n a l l y , th e prosecutor repeatedly

rem inded the jury of hi s b urden to establish g u il t b eyond a reasonable doubt. The jury

w a s p r o p e r l y i n f

o r m e d a b o u t t h e prosecution’s burden.

These conclusions are reasonable. “Juror s do not sit in

s o l i t a r y i s o l a t i o n b o o t h s p a r s i n g i n s t ru c t i o n s ”

— o r prosecutors’ comm ents—“for su b t le sh ad es of m eaning in the

sam e way tha t l awy e rs m ight.” Boyde
, 494 U.S. at 380–81. And based on the i n s tru c tions given—which the jury is p re sum ed to have followed, see Tak Sun Tan
, 413 F.3 d
at 1115—the jury understood everything it needed to render

a c onstitutional verdict. The jury knew, based on th e instructions, that i t should not take whatever was said in closing argum ents as th e law. More im portantly, it

und er s tood the concept that the presum ption exists to drive hom e “that the S tate has the burden of establishing every elem ent of the offense beyond a reasonable doubt.” Delo v. Lashley , 507 U.S. 272, 2 7 8 (1993). Put differently, the jury

was n o t mi s led into thinking that it could decide the case based on suspicion or extra-record evidence. It knew that the burden of p roof was beyond a reasonable doubt. See Taylor

v. Kentucky
, 436 U.S. 478, 484– 85 (1978) (explaining the dual p urpose of the presum ption of inn o c e n c e ); see also Estelle v. Williams
, 425 U.S. 501, 503 (1976) (noting that the presum ption of innocence em

bodies “the principle that guilt is to be estab lished by probative evidence and b eyond aF O R D V

. P E ER

Y 44

r e asonable doubt”). The Court of Appeal’s reliance on th e jury instructions as sup p o rt for its harm lessness conclusion was therefore reasonable.

The Suprem e C ourt’s decision in Brown v. Payton
, 544 U.S. 133 (2005), reversing our court’s decision, supports this c o n c lusion. There, a prosecutor erroneously stated during clos i ng argum ent that the jury was not allowed to consider m itigation evidence. Id. at 138. Defense counsel’s objection was o v e rruled without an instant curative instruction. I

d

. But “[t]he jury w as n ot left without any judicial direction.” Id. at 146. The jury was instructed before deliberations began tha t it could consider all evidence presented at trial unless tol d o th e rwise. Id. Because it was

never instructed that it co u l d n o t consider the m itigation evidence, it was not unreasonable for the Court of Appeal to conclude that any error caused by the prosecutor’s

m isstatem ent of the law was harm less. Id. at 147.

The m ajority largel y overlooks the effect of the jury instructions an d instead focuses on the evidence of guilt. Here, too, it errs. According to the m ajority, this was “a very close case” b a sed in large part on “circum stantial” and “incom plete” evidence, so any error m ust have been harm ful. Majority at 2 6. But the m ajority ’ s v i e w of the closeness o f the case is n ot d eterm inative under A EDPA’s analysis. T here

was nothing “objectively unreasonab l e ” about the Court o f Ap p e a l ’s conclusion that “the evidence of Ford’s guilt was strong.” So under AEDPA, we m ust defer to that finding.

To b e s ure, the evidence of guilt m ay not h ave been “overwhelm ing.” B recht
, 507 U.S. at 639. But it was “certainly we ighty.” Id. O ne need look no further than the

m ai n pi e c e o f direct evidence in this case: the partial p almF O R D V

. P E ER

Y 45

print. That p r i n t was found o n the victim ’s car, just four hours aft e r it w as 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 p rint m ight b e on tha t e xact location within proxim ate tim ing of the m urder other than that he
t o u ched the car som e other tim e. As Ford put it, “[T]h at don’t m ean nothing. T hat just m eans I cam e in contact with the vehicle at one tim e or another.” This evidence, paired with the m

ultiple pieces of circum stantia l e vidence suggestin g F o rd ’s gu ilt—including Ford’s Facebook post; his phone call with his girlfriend; the m u ltiple stolen cell phones; his height, general appearanc e , and general age consistent with w itness descriptions; and the white vehicle he was driving—provide a reasonab le basis for concluding that the evidence of guilt wa s s trong enough that som e passing statem ents during a closing argum ent did not create a “reasonable probabili ty o f a d ifferent result.” Hein v. Sullivan
, 601 F.3d 8 9 7
, 906 (9th Cir. 2010) (internal quotation m arks and citation om itted).

The m ajority’s conclusion t o the contrary relies in large part on the purported inconsistency between the jury’s guilty

c o nv i c ti o n for m

urder and its divided vote on one of the firearm enhancem ents. But assessing the reason for any potential inconsistency is “pure speculation” b ecause there is

no way of kn o wi n g whether the inconsistency was “the p ro duc t of lenity” for Ford. See United States v. Powell
, 469 U.S. 57, 66 (1984). Nor is th e result necessarily inconsistent, as the jury could h ave determ ined that Ford was involved in a felony in which Martinez was m urdered, but did not actually pull the trigger. Regardless, even a potentially inconsistent jury verdict provides n o support for any e rr o rF O R D V

. P E ER

Y 46

being harm ful here. And it fails to justify disregard i ng the Court o f Ap pe al’s finding of harm lessness which is entitled to substantial deference under AEDPA.

The m ajority also focuses on the length of deliberations and the jury being “hopelessly deadlocked.” Majority at 22–23, 26. But the m ajority’s si mp l i s tic discussion of this issue gross l y o v e rstates the deadlock. The d eadlock was caused b y o ne juror. The other 11 were not deadlocked at all; the y w ere ready to convict. One holdout juror—who eventually voted to convict—cannot b ear the weight the

m ajority gives it. And it certainly does not provide a basis for d ee m ing the Court o f Appeal’s harm lessness conclusio n “unreasonable.”

* * *

Under AEDPA, “[o]ur aim is not to punish society f or the

m isdeeds of the p rosecutor; rather, our goal is to ensure that the petitioner received a fair trial.” T ri l lo v

. B iter , 769 F.3d 995, 1001 (9th Cir. 2014). Ford received a fair trial, and we

m ust defer to the Court of Appeal’s em i n e n t l y reasonable finding of harm lessness in any event. I would deny relief, and thus respectfully dissent.