FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN ROBERT DECK,

Petitioner-Appellant,

v.

MACK JENKINS, Chief Probation

Officer,

Respondent-Appellee.

No. 13-55130

D.C. No.

8:11-cv-01767-

MWF-FFM

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted

April 8, 2014—Pasadena, California

Filed September 29, 2014

Amended February 9, 2016

Before: Sidney R. Thomas, Milan D. Smith, Jr.,

and Morgan Christen, Circuit Judges.

Order;

Dissent to Order by Judge Bea;

Opinion by Judge Christen;

Dissent by Judge Milan D. Smith, Jr.
2 DECK V. JENKINS

SUMMARY*

Habeas Corpus

The panel filed amended majority and dissenting

opinions, denied a petition for panel rehearing, and denied on

behalf of the court a petition for rehearing en banc, in a case

in which the panel reversed the district court’s dismissal of a

28 U.S.C. § 2254 habeas corpus petition challenging a

conviction for an attempted lewd act upon a child under the

age of 14.

The California Court of Appeal (CCA) established that a

trial error occurred when the prosecutor, in closing argument,

negated an essential element of intent under California law by

“pushing defendant’s intent to commit a lewd act on ‘Amy’

to, potentially, ‘next week’ or in ‘two weekends’ or ‘just

some point in the future.’” The panel concluded that although

the CCA did not independently evaluate the federal

constitutional question, its harmlessness determination

amounted to an implied ruling that the prosecutor’s error did

not amount to a federal constitutional violation.

The panel held that the CCA’s conclusion that no

constitutional violation occurred was unreasonable because

the prosecutor’s misstatements were not inadvertent or

isolated; because the jury was never correctly instructed that,

in order to convict, it had to find the petitioner had moved

beyond preparation and would engage in a lewd act with Amy

the night he was arrested; and because the evidence

 

*

 This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DECK V. JENKINS 3

concerning the temporal aspect of the petitioner’s intent was

not overwhelming. The panel concluded that no fairminded

jurist could agree with the CCA’s harmlessness

determination, and that the prosecutor’s misstatements

resulted in actual prejudice.

The panel remanded with instructions to grant the petition

unless the State agrees to grant the petitioner a new trial

within a reasonable period of time.

Dissenting, Judge M. Smith wrote that the majority flouts

clear AEDPA precedent, committing the same error the

Supreme Court has criticized this court for making by

collapsing the distinction between an unreasonable

application of federal law and what the majority believes to

be an incorrect or erroneous application of federal law.

Judge Bea, joined by Judges O’Scannlain, Tallman,

Bybee, Callahan, M. Smith, Ikuta, and N.R. Smith, dissented

from the denial of rehearing en banc. He wrote that the

majority disregarded the deference that AEDPA requires,

rejecting a California appellate court’s reasoned and

supported conclusion that prosecutorial misstatements made

during the petitioner’s trial constituted harmless errors, in

favor of its own determination that such statements were

actually prejudicial.
4 DECK V. JENKINS

COUNSEL

Charles M. Sevilla (argued), Law Office of Charles Sevilla,

San Diego, California, for Petitioner-Appellant.

Kamala D. Harris, Julie L. Garland, Kevin Vienna (argued),

and David Delgado-Rucci, Office of the Attorney General of

California, San Diego, California, for Respondent-Appellee.

ORDER

The opinion filed on September 29, 2014, is amended and

the amended majority and dissenting opinions are filed

concurrently with this order. With these amendments, a

majority of the panel has voted to deny the petition for panel

rehearing. The full court has been advised of the petition for

rehearing and rehearing en banc. A judge of the court

requested a vote on whether to rehear the matter en banc. A

majority of the nonrecused active judges did not vote in favor

of rehearing en banc. Fed. R. App. P. 35(f). The petition for

panel rehearing and the petition for rehearing en banc are

DENIED. A dissent from denial of rehearing en banc is filed

concurrrently with this order. No further petitions for

rehearing or rehearing en banc may be filed.
DECK V. JENKINS 5

BEA, Circuit Judge, with whom O’SCANNLAIN,

TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA,

and N.R. SMITH, Circuit Judges, join, dissenting from the

denial of rehearing en banc:

The ink is hardly dry on the Supreme Court’s latest

reversal of another of our judgments where we disregarded

the deference the Antiterrorism and Effective Death Penalty

Act (“AEDPA”)1

 requires we give state court decisions that

any trial court errors were harmless, thus precluding any

entitlement to habeas relief.2

 Yet here we have gone and

done it again. The panel majority (the “Majority”) today

rejects a California appellate court’s reasoned and supported

conclusion that prosecutorial misstatements made during

Defendant Deck’s trial constituted harmless errors, in favor

of its own determination that such statements were actually

prejudicial. As explained below, I find four major missteps

in the Majority’s opinion.

 

1

 Under AEDPA, a federal court may grant habeas relief based on trial

error that a state court has previously determined to be harmless only if the

state court’s determination involved an “unreasonable” application of

“clearly established . . . law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court recently

emphasized in Davis v. Ayala that “a state-court decision is not

unreasonable if fairminded jurists could disagree on [its] correctness.” 

Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015) (internal quotation marks

omitted) (alteration in original).

 

2

See Ayala v. Wong, 756 F.3d 656 (9th Cir. 2013), rev’d and remanded

sub nom. Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015). Ayala held that

a petitioner cannot show “actual prejudice” under Brecht, nor a right to

federal habeas relief, unless he first demonstrates that the

Chapman/AEDPA standard is met, i.e., that no “fairminded jurist could

agree” with the state court’s application of well-established Supreme

Court precedent.
6 DECK V. JENKINS

First, the Majority reads Davis v. Ayala to hold that a

federal habeas court’s finding that a state trial court error was

prejudicial under Brecht3 dispenses with AEDPA’s

requirement that the federal habeas court must also find that

the state court applied “well-established” Supreme Court

precedent in an “unreasonable” manner when it found the

same error harmless (a “Chapman/AEDPA” analysis).4

 See

Slip Op. at 63–64. This conclusion is illogical because

Brecht requires only a finding by a federal court that (in its

view) an error was not harmless—without any deference to,

or evaluation of, the reasonableness of a prior state court

determination. Under Chapman/AEDPA, conversely, we

must accept a state court’s prior harmless error determination

unless it involved such an “unreasonable” application of

Supreme Court precedent that “no fairminded jurist” could

agree with it. See Davis v. Ayala, 135 S. Ct. 2187, 2199

(2015). Thus, though a Chapman/AEDPA finding would

 

3

 In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court

held that a prisoner is not entitled to habeas relief unless he can show that

he was “actual[ly] prejudice[d],” by a trial court error of constitutional

magnitude, meaning that the trial court error had a “substantial and

injurious effect or influence . . . [on] the jury’s verdict” (the “Brecht

standard”). Id. at 627, 637. The Court found that principles of “finality,”

“comity,” and “federalism” justified such a deferential standard of review

in federal habeas (i.e. collateral) proceedings. Id. at 635.

 

4

 On direct appeal, a state court applies the “Chapman test,” under

which a petitioner is entitled relief unless the court finds that any federal

constitutional error at trial was “harmless beyond a reasonable doubt.” 

Chapman v. California, 386 U.S. 18, 24 (1967). On collateral review by

a federal habeas court, however, the Chapman test is combined with

AEDPA deference, resulting in the “Chapman/AEDPA” test, under which

a federal habeas court cannot disturb a state court’s finding of

harmlessness unless the state court “rendered a decision with which no

fairminded jurist could agree.” Ayala, 135 S. Ct. at 2208.
DECK V. JENKINS 7

necessarily mean that a trial error was harmful (and thus also

satisfy Brecht) the contrary is not necessarily true. Indeed,

the panel Majority’s test got it precisely backwards.

The Majority did so by committing its second error: It

read Justice Alito’s statement that “the Brecht test subsumes

the limitations imposed by AEDPA,” id. at 2199, to mean that

Brecht eliminated, rather than incorporated, AEDPA

deference. But it is hard to see how that can be correct when

the Brecht standard was developed in 1993—three years

before AEDPA was enacted. And of course, were the

Majority’s understanding the correct reading of the phrase,

Ayala would necessarily have come out the other way.5

 As a

result of its misreading, the panel Majority’s decision is

directly contradictory to the Court’s opinion in Ayala. In fact,

it is consistent with Justice Sotomayor’s dissent in Ayala.

Third, applying its faulty test, the panel Majority’s

analysis fails to afford proper AEDPA deference to the state

court’s harmless error determination. In the portions of the

Majority’s opinion dedicated to finding the state court’s

determination of harmless error unreasonable, the Majority

considers only the evidence and arguments pointing to a

prejudicial effect of the prosecutor’s misconduct, rather than

(as AEDPA requires) whether any of the evidence and

arguments put forth by the state court provided a reasonable

basis for that court’s determination that any error was

harmless.

 

5 Ayala specifically reversed our grant of habeas relief to Ayala based

only on our finding of “actual prejudice” under Brecht, explaining that we

had erred in failing to recognize that Chapman/AEDPA sets forth a

“precondition” to habeas relief. Ayala, 135 S. Ct. at 2196, 2198.
8 DECK V. JENKINS

Fourth, the legal basis for the Majority’s conclusion that

“no fairminded jurist” could agree with the state court’s

finding of harmless error under Darden v. Wainwright,

477 U.S. 168 (1986), in fact supports the opposite conclusion. 

That is, every Supreme Court precedent regarding

prosecutorial misconduct cited by the Majority found not

prejudicial error, but harmless error.

As highlighted in Judge M. Smith’s dissent in Deck v.

Jenkins, 768 F.3d 1015, 1031 & n.1 (9th Cir. 2014), the

Majority’s approach to federal habeas review has been

rejected by the Supreme Court not once, not twice, but

upwards of a dozen times. See, e.g., Ayala, supra, 135 S. Ct.

at 2196–99, 2208; see also Richter v. Hickman, 578 F.3d 944

(9th Cir. 2009) (en banc), rev’d and remanded by Harrington

v. Richter, 562 U.S. 86, 101–02 (2011) (rejecting our

conclusion that because we found a prejudicial Strickland

violation under Brecht, the “state court’s decision to the

contrary constituted an unreasonable application of

Strickland,” and explaining that “AEDPA demands more”

than the traditional Brecht test); Smith v. Mitchell, 624 F.3d

1235 (9th Cir. 2010), rev’d and remanded sub nom. Cavazos

v. Smith, 132 S. Ct. 2, 6–8 (2011) (per curiam) (reversing our

grant of habeas relief and stating: “This Court vacated and

remanded this judgment twice before, calling the panel’s

attention to this Court’s opinions highlighting the necessity of

deference to state courts in § 2254(d) habeas cases. Each

time the panel persisted in its course, reinstating its judgment

without seriously confronting the significance of the cases

called to its attention . . . . Its refusal to do so necessitates this

Court’s action today.” (emphasis added)).

In sum, the Deck Majority’s application of Brecht without

§2254(d)(1) deference flouts the Supreme Court’s recent
DECK V. JENKINS 9

mintage in Davis v. Ayala by immediately reinstating the

framework the Court had just rejected. Moreover, because

the Ayala Court reversed and remanded that case back to the

Ninth Circuit for proceedings consistent with its opinion, see

Ayala, 135 S. Ct. at 2208, the Deck Majority’s issuance of a

directly contradictory opinion will immediately create not

only an intra-Circuit split, but also divergence between our

own precedent and that of our sister Circuits. See Fed. R.

App. P. 35(a)(1).6

 This is why I called this case en banc. 

Unfortunately, the call failed.

I.

In Davis v. Ayala, the Supreme Court squarely addressed

the proper interaction between Brecht’s “actual prejudice”

standard, see n.3, supra, and AEDPA’s mandated deference

(which post-dates Brecht),7 where the state court has

previously decided a federal constitutional issue on its merits. 

Ayala, 135 S. Ct. at 2187–98 (2015). In Ayala, the petitioner

sought federal habeas relief after the California Supreme

Court affirmed his murder conviction and death sentence. 

See id. at 2194–95. During jury selection, Ayala (who is

Hispanic) had objected to seven of the prosecutor’s eighteen

preemptory challenges, which seven challenges had

eliminated all potential black and Hispanic jurors on the

panel. Ayala’s objection was that the challenges were

 

6

 Re-hearing en banc is justified when “the panel decision conflicts with

a decision of the United States Supreme Court,” Fed. R. App. P.

35(b)(1)(A), and resolution of the conflict through “en banc consideration

is necessary to secure or maintain uniformity of the court’s decisions,” id.

35(a)(1).

 

7

 AEDPA was enacted in 1996, see 28 U.S.C. § 2254(d)(1), three years

after the Supreme Court’s 1993 decision in Brecht. See supra, n.3.
10 DECK V. JENKINS

impermissibly race-based under Batson v. Kentucky, 476 U.S.

79 (1986). See Ayala, 135 S. Ct. at 2193–94. The trial judge

had permitted the prosecutor to offer race-neutral reasons for

each strike, but only in an ex parte hearing, because the

prosecutor had claimed he did not want to reveal his trial

strategy. Id. at 2193. On direct appeal, the California

Supreme Court held that the exclusion of Ayala’s counsel

from the hearing on preemptory strikes was federal

constitutional error,8

 but that such error was “harmless

beyond a reasonable doubt” under the Chapman test because

nothing defense counsel could have said, had he been present

when the trial judge required the prosecution to state reasons

for his preemptory challenges, would have changed the trial

court’s rulings. Id. at 2195.

The Ninth Circuit reversed, granting habeas relief. Id. at

2193. It identified Brecht as the governing standard on

collateral review, but added: “We apply the Brecht test

without regard for the state court’s harmlessness

determination.” Id. at 2196 (emphasis added). The court

then concluded that the exclusion of defense counsel from ex

parte communications by the prosecutor to the trial court

judge was not harmless, but constituted prejudicial error

under Brecht. Id. at 2197.

 

8

 The California Supreme Court suggested that the exclusion of defense

counsel from hearings regarding a prosecutor’s use of preemptory strikes

“may amount to a denial of due process.” People v. Ayala, 6 P.3d 193,

204 (Cal. 2000) (explaining, that “[t]he right of a criminal defendant to an

adversary proceeding is fundamental to our system of justice. . . . This

includes the right to be personally present and to be represented by

counsel at critical stages during the course of the prosecution”).
DECK V. JENKINS 11

The Supreme Court reversed us yet again,9 specifically

rejecting our exclusive application of Brecht, without

AEDPA deference to the state court’s harmless error

determination. See id. at 2198. The Court explained that a

prior state court harmless error adjudication triggered

AEDPA deference within the traditional Brecht analysis. See

id. at 2199 (“[A] prisoner who seeks federal habeas corpus

relief must satisfy Brecht, and if the state court adjudicated

his claim on the merits, the Brecht test subsumes the

limitations imposed by AEDPA.”). If AEDPA deference has

been triggered by a state court merits determination as to the

c l a i m e d f e d e r a l c o n s t i t u t i o n a l v i o l a t i o n ,

Chapman/AEDPA—that is, a finding that the state court’s

harmlessness determination was an “unreasonable”

application of “clearly established” Supreme Court

precedent—becomes an additional “precondition to the grant

of habeas relief.” Id. at 2198–99 (A petitioner “must show

that the state court’s decision to reject his claim ‘was so

lacking in justification that there was an error well understood

. . . in existing law beyond any possibility for fairminded

disagreement.’” (quoting Harrington v. Richter, 562 U.S. 86,

103 (2011))). In fact, Chapman/AEDPA requires the federal

court to consider not only the arguments that the state court

actually made, but also those arguments that “could have

supported[] the state court’s decision.” Harrington, 562 U.S.

at 102.

Consistent with this framework, the Supreme Court’s

analysis in Ayala “beg[a]n with the prosecution’s

explanation[s]” for striking each juror and concluded with

 

9

 For a relation of our circuit’s history of reversals in AEDPA cases, see

Judge M. Smith’s dissent, Deck v. Jenkins, 768 F.3d 1015, 1031 & n.1

(9th Cir. 2014).
12 DECK V. JENKINS

findings that the petitioner could show neither “actual

prejudice” (Brecht) nor that “no fairminded jurist could agree

with the state court’s application of Chapman.” See, e.g.,

Ayala, 135 S. Ct. at 2203; see also 28 U.S.C. § 2254(d)(1). 

The Court again chastised our court for failing to

consider—without “substitut[ing] its own opinions”—

whether “any fairminded jurist” could agree with the state

court’s proffered reasons for finding any error was harmless. 

See, e.g., Ayala, 135 S. Ct. at 2202 (“The role of a federal

habeas court is to guard against extreme malfunctions in the

state criminal justice systems . . . not to apply de novo review

of factual findings and to substitute its own opinion for the

[state court’s] determination . . . .” (internal quotation marks

and citations omitted)); see also id. at 2205 (rejecting the

Ninth Circuit’s “speculation” and “flight of fancy” about

“extrarecord information defense counsel might have

mentioned”).

In her Ayala dissent, Justice Sotomayor argued that “[i]f

a trial error is prejudicial under Brecht’s standard, a state

court’s determination that the error was harmless beyond a

reasonable doubt is necessarily unreasonable.” Ayala, 135 S.

Ct. at 2211 (2015) (Sotomayor, J., dissenting). But that

proposition is exactly what the Davis v. Ayala majority had

just rejected. See id. at 2197, 2208 (holding that the Ninth

Circuit’s finding of actual prejudice under Brecht did not

“necessarily” render the state court’s contrary finding

“unreasonable”; a separate Chapman/AEDPA analysis was

required to make that determination). As discussed below,

however, the Deck panel Majority adopted Justice

Sotomayor’s erroneous statement of law. In my view, this

outright disregard for binding Supreme Court precedent,

particularly in light of the Supreme Court’s recent reversal of
DECK V. JENKINS 13

the Ninth Circuit on this very question, warranted en banc

review. See Fed. R. App. P. 35(a)(1).

II.

With these principles in mind, I turn to the present federal

habeas claim by 46-year-old Stephen Deck (“Deck”) arising

from his California state court conviction of attempt to

commit a lewd or lascivious act on a child under the age of

14. See Cal. Penal Code §§ 288(a); 664. Defendant Deck

began chatting online with a fictitious 13-year-old girl named

“Amy.” “Amy” was actually a volunteer working on a police

sting operation targeted to identify and arrest adults using the

internet to meet minors for sex. Deck identified himself in

his online profile as a 46-year-old male who was “single and

looking.” Deck initiated contact with Amy by sending her a

message stating, “Older for younger here.” Amy responded

positively, and the two began exchanging sexually suggestive

messages nearly every day for a week. Throughout these

chats, Deck called Amy “hot,” a “hottie,” “sexy,” and “a little

slutty.” Deck said he wanted to “date” Amy, to take pictures

of her, to “hold” her, and to “kiss” her. When Amy replied

“that is what [boyfriends] and [girlfriends] do,” Deck

interjected, “[m]mm, yessss . . . [a]ll that and more . . . .” 

Deck said he wanted to perform oral sex on Amy, promising

that it would feel “so good.” Deck used the imagery of

“eating pie” as an allusion to oral sex. Deck asked Amy

about her own sexual experiences and how she “like[d]

sucking cock?”

In arranging their first date, Deck—a lieutenant in the

California Highway Patrol—expressed trepidation about

meeting at Amy’s apartment, indicating that he would “hate

to walk into an apartment where I don’t know – really who’s
14 DECK V. JENKINS

there” and told Amy that he needed to “make sure if it’s real

. . . .” Ultimately, Amy and Deck decided to meet in a park

next to Amy’s apartment. But in discussing what the pair

would do on their first date, Deck agreed they would “eat pie

and stuff and talk,” and repeatedly suggested they “see what’s

on TV” (presumably at Amy’s house, not at the park). On the

day of the planned rendezvous, Deck claimed to have a “sore

throat.” When Amy told Deck they would have to wait two

more weeks before Amy’s mom would be “working” on a

weekend again (so that Amy would be home alone), Deck

decided to come over despite his illness to “say hi and meet

[Amy].” Just before signing off, Deck reminded Amy,

“Remember I am sick so no kissing or nothing. Just bringing

you your pie.” But Deck also announced, “I probably won’t

be able to keep my hands off of you.” Deck drove 45 minutes

to Amy’s house and arrived at 8:35 p.m. He parked in Amy’s

apartment complex and walked to the park. Spotting a young

female, Deck approached and asked whether she was “Amy.” 

The female responded by asking whether he was “Steve.” 

When Deck acknowledged his identity, police arrested him. 

Investigators searched Deck’s person and found a digital

camera and a piece of pie. A search of Deck’s vehicle

revealed a Mapquest printout with directions to Amy’s

apartment and six expired condoms. Deck’s home computer

contained sexually charged chat logs between Deck and two

other young girls with whom Deck had attempted to arrange

meetings.

A.

Deck was charged in California state court with attempt

to commit a lewd or lascivious act upon a child. See Cal.

Penal Code §§ 288(a); 664. As applied to these facts,

California law required that Deck intended to “touch” Amy
DECK V. JENKINS 15

on the night of the “date,” though the touching need not

appear sexual and could occur anywhere on Amy’s body or

through clothing. Deck’s theory of defense at trial was that

“like it or not the law [of attempt] is on Mr. Deck’s side,”

because the prosecutor cannot show beyond a reasonable

doubt that Deck intended to touch Amy that night. The

prosecutor called the defense’s theory “baloney,” arguing that

in the “defendant’s own words,” “he wouldn’t be able to keep

his hand off of [Amy],” and thus he “definitely” intended to

touch Amy that night. The prosecutor emphasized that

something as apparently benign as giving Amy a goodbye

“hug,” holding her hand, or posing her for photos would have

qualified as “lewd” under § 288(a), given Deck’s sexual

intent. But, at one point, the prosecutor also argued

(improperly): “I don’t have to prove to you that [Deck] was

going to commit a lewd act on . . . February 18th, 2006. . . .

[E]ven if his intent was just to meet [Amy], get to know her,

break the ice and follow up the next day, the next week,

maybe [in] two weekends when Mom’s gone . . . that is all I

need.” Defense counsel neither objected, nor moved to strike,

nor asked for a curative instruction.

At the end of the parties’ arguments, the judge properly

instructed the jury that attempt in California requires an

“immediate step” that “goes beyond planning or preparation”

and “puts the [defendant’s] plan into motion so that the plan

would have been completed [absent some ‘outside’

circumstance].” On the first day of deliberations, a Thursday,

the jury sent the judge a note, asking him to “clarify [the] law

as it relates to whether defendant did not have to do anything

that day only attempt to put it into play.” This question

prompted debate between counsel regarding the immediacy

element of attempt. The judge requested supplemental

briefing and dismissed the jury pending resolution of the
16 DECK V. JENKINS

issue. The jury reconvened the following Tuesday, December

21, 2009, by which time one juror had fallen ill and been

replaced by an alternate. The judge never answered the jury’s

original question—instead instructing the “new” jury to begin

deliberating anew and inviting it to submit any “questions” it

“want[ed] answered.”10 After 22 minutes of deliberation and

without submitting any questions, the jury rendered a guilty

verdict.

B.

Deck appealed his conviction to the California Court of

Appeal (“CCA”), arguing that the prosecutor’s misstatement

of law negated an essential element of attempt: that the

attempted act was to occur that night. Moreover, Deck

argued, his arrangement to meet Amy in a public park,

combined with his statements that he was “sick” and just

wanted to “say hi,” made Deck’s intent to commit a lewd act

on the night of the sting too ambiguous to render the

prosecutor’s misstatement “harmless.”11 The CCA agreed

that this small excerpt of the prosecutor’s closing statement

 

10 The judge said, “I know that there was a previous question sent out by

the foreperson, Juror # 9. In light of the fact I have just given you this

instruction that you have to start all over again, disregard past

deliberations, you need to follow that instruction. If you have any further

questions that you want answered once you start deliberating with the

jury, send that out in the question format and we will answer it for you.”

 

11 He also asserted ineffective assistance of counsel based on defense

counsel’s failure to object.
DECK V. JENKINS 17

was legally incorrect,12 but found the error harmless for three

reasons.

First, the CCA emphasized that § 288(a)’s “touching”

requirement could be satisfied by a range of apparently nonsexual touching, like a seemingly “innocent hug” or “other

. . . public” touching. People v. Deck, No. G043434, 2011

WL 2001825, at *10 (Cal. Ct. App. May 24, 2011) (“The

‘controlling factor’ is the defendant’s intent when touching

the minor, not the type of touching.’”). There was no reason

why the requisite touching could not occur in a public park. 

Id. Nor did the fact that Deck planned to meet Amy in public

mean that Deck intended to remain in public. Id. Deck had

explained that he wanted to “make sure if it’s real and you’re

there.” Deck had told Amy earlier that day that the pair

would watch TV on their date (presumably, not in the park)

and eat “pie,” a double entendre for oral sex. Deck arrived

after dark with a camera. The standard for attempt is also not

particularly onerous: California courts have found attempt

where the defendant showed up at a public bus station to meet

a minor before going to a hotel. Id. at *8 (citing People v.

Crabtree, 169 Cal. App. 4th 1293, 1322–23 (2009)).

 

12 The CCA specifically held that only the italicized excerpts were

improper: “But even if his intent was just to meet her, get to know her,

break the ice and follow the next day, the next week, maybe [in] two

weekends when mom’s gone . . . that is all I need. I don’t need to prove

to you that [Deck] was going to commit a lewd act on that day, just some

point in the future.” (alteration and italics in original)). The CCA held that

the statement, “I do not have to prove to you that [Deck] was going to

commit a lewd act on or about February 18th, 2006,” “present[s] no

problem” under California law; “after all, lack of success defines attempt.” 

People v. Deck, No. G043434, 2011 WL 2001825, at *11 (Cal. Ct. App.

May 24, 2011).
18 DECK V. JENKINS

With these principles in mind, the CCA found “sufficient

evidence” to prove that Deck intended to commit a lewd act

on Amy on the night of the sting: Deck specifically sought

out Amy because of her age (“Older for younger here”); Deck

engaged in repeated, sexually explicit communications with

Amy in which he indicated a clear desire to kiss, photograph,

and perform oral sex on Amy (thus establishing that Deck

possessed the requisite mental state to render any touching

unlawful under § 288(a)); Deck used “eating pie” as a

euphemism for oral sex, and told Amy on the day of the date

that he would “bring her pie” and would probably not be able

to keep his hands off her; Deck drove 45 minutes to Amy’s

house, while Amy was home alone, and while “ill,” because

he could not wait two more weeks to see her; Deck arrived at

the park by Amy’s house with a camera and condoms. Id. at

*9. Given the “jury’s role in assessing the credibility of

Deck’s statements,” a “rational juror” could conclude that

Deck’s claims of illness and his insistence on meeting Amy

outside were merely a “ploy” to verify Amy’s age and

identity. Id. Assuming “Amy” was real, Deck had every

intention of “touching” her within the broad meaning of

§ 288(a). Id.

Second, the CCA noted, the prosecutor’s closing

argument properly focused “on Deck’s clear intent . . . to

commit a lewd act with the victim on the weekend he actually

met with her.” Id. at *12. The prosecutor’s “errant gloss on

the law of attempt” was an “isolated departure in a few stray

words” from that theme. Id.

Third, the trial court properly instructed the jury, and

California law presumes that the jury followed these

instructions over any contrary statements by counsel. Id. at
DECK V. JENKINS 19

*12–13.13 Indeed, the judge specifically instructed the jury:

“You must follow the law as I explain it to you, even if you

disagree with it. If you believe that the attorneys’ comments

on the law conflict with my instructions, you must follow my

instructions.” The jury’s question did not justify abandoning

this presumption, the CCA explained, because the court could

presume that “having taken a fresh look [after the

weekend]—or a first look in the case of the new juror—at the

trial court’s instructions, [the jury] had no further questions

for the trial court and reached a verdict.” Id. at *13

(“Consequently, there is no basis to conclude the jury

disregarded the trial court’s instructions and instead fixated

on an isolated comment by the prosecutor.”). A fairminded

jurist could also conclude that, given the strong evidence

against Deck, any error was harmless.

 

13 In full, the jury instructions regarding attempt provided:

To prove that the defendant is guilty of [attempt to

commit 288(a)], the People must prove that: (1) The

defendant took a direct but ineffective step toward

committing 288(a)[,] AND (2) [t]he defendant intended

to commit 288(a). A direct step requires more than

merely planning or preparing to commit 288(a) or

obtaining or arranging for something needed to commit

288(a). A direct step is one that goes beyond mere

planning or preparation and shows that a person is

putting his plan into action. A direct step indicates a

definite and unambiguous intent to commit 288(a). It

is a direct movement towards the commission of the

crime after preparations are made. It is an immediate

step that puts the plan in motion so that the plan would

have been completed if some circumstance outside the

plan had not interrupted the attempt.
20 DECK V. JENKINS

For all these reasons, the CCA concluded, any

misstatement by the prosecutor was harmless.

C.

On habeas appeal, a federal magistrate judge reviewed the

CCA’s analysis at length and recommended that it was

“neither an unreasonable application of, nor contrary to,

clearly established federal law.” Deck v. Jenkins, No. SACV

11-1767 MWF FFM, 2012 WL 6853245, at *11 (C.D. Cal.

Nov. 7, 2012), report and recommendation adopted, No.

SACV 11-1767 MWF FFM, 2013 WL 146351 (C.D. Cal. Jan.

14, 2013). The district court agreed and denied Deck’s

petition for relief, but granted a Certificate of Appealability

(“COA”) regarding the harmlessness of the prosecutor’s

misstatement of law. Deck, 2013 WL 146351, at *1.

A divided Ninth Circuit panel has reversed. Deck v.

Jenkins, 768 F.3d 1015, 1017 (9th Cir. 2014). The Majority

opined, as a threshold matter, that an error of constitutional

magnitude had occurred (the prosecutor’s misstatement

violated Deck’s right to due process under Darden). Id. at

1031. The Majority also concluded that it had “grave doubt”

as to whether the prosecutor’s misstatements were harmless

under Brecht, and granted habeas relief on this basis. Id. 

Issuance of the court’s mandate was thereafter stayed pending

the outcome of Davis v. Ayala—which fundamentally

contradicted the Majority’s analysis. Nonetheless, the

Majority stayed its course, reading Justice Alito’s reversal of

our grant of habeas relief in Ayala based on a bare application

of Brecht as somehow affirming precisely the opposite: that

the panel may grant habeas relief as long as it found “actual

prejudice” under Brecht; no separate AEDPA analysis was

required. See Slip Op. at 63–64. For the reasons set forth
DECK V. JENKINS 21

below, neither the Majority’s statement of the applicable legal

standard, nor its analysis, can be squared with binding

Supreme Court precedent.

III.

A.

The Majority’s first error lies in its adoption of an

approach to federal habeas review plainly reminiscent of the

Ayala dissent. The Deck Majority holds: “A determination

that [a constitutional] error resulted in ‘actual prejudice’

[under Brecht], necessarily means that the state court’s

harmlessness determination was not merely incorrect, but

objectively unreasonable. . . . A separate AEDPA/Chapman

determination is not required.” Slip Op. at 63–64 (emphases

added); cf. Ayala, 135 S. Ct. at 2211 (Sotomayor, J.,

dissenting) (“Fry expressly held that federal habeas courts

need not first assess whether a state court unreasonably

applied Chapman before deciding whether that error was

prejudicial under Brecht. . . . If a trial error is prejudicial

under Brecht’s standard, a state court’s determination that the

error was harmless beyond a reasonable doubt is necessarily

unreasonable.”).

The legal standard Justice Sotomayor advanced in dissent

is fundamentally inconsistent with that applied by the Ayala

majority, and thus the Deck Majority erred in relying upon it. 

To start, Justice Sotomayor stated that the Ayala majority did

nothing more than “simply restate[] the holding of Fry v.

Pliler.” Id. at 2211. That is simply not accurate—Fry did not

involve an application of AEDPA. The issue in Fry was

whether a federal habeas court should apply Chapman de

novo (instead of Brecht de novo) where the state court had
22 DECK V. JENKINS

“failed to recognize [any constitutional] error” and thus had

not engaged in any harmless error analysis on direct review. 

Fry v. Pliler, 551 U.S. 112, 114 (2007). The Fry Court held

that for reasons of “finality, comity, and federalism,” a

federal habeas court must apply Brecht on habeas review,

even where the state court never applied Chapman. Id. at

116, 121–22. But the Fry Court had no occasion to consider

the effect of AEDPA on Brecht where—as here—there has

been a prior state-court finding of harmless error. Thus,

Justice Sotomayor erroneously interpreted Fry when she

suggested that the Court there held a finding of “prejudic[e]

under Brecht . . . [renders] a state court’s determination that

the error was harmless beyond a reasonable doubt . . .

necessarily unreasonable.” Ayala, 135 S. Ct. at 2211.

In fact, the Supreme Court squarely confronted and

rejected this very contention in Davis v. Ayala, supra, and

Harrington v. Richter, 562 U.S. 86 (2011). In both cases, the

Court emphasized that the Chapman/AEDPA standard

requires something more than a traditional application of

Brecht. See, e.g., Harrington, 562 U.S. at 101–02 (rejecting

this Circuit’s conclusion that a finding of actual prejudice

under Brecht satisfied AEDPA/Chapman and explaining that

such a proposition must be incorrect—to hold otherwise

would render AEDPA a nullity). The Majority’s adoption of

Justice Sotomayor’s statement that Chapman/AEDPA is

wholly redundant of Brecht is directly contrary to the central

rule of Davis v. Ayala that Chapman/AEDPA sets forth a

mandatory “precondition” to habeas relief. Ayala, 135 S. Ct.

at 2198–99. It also contravenes the Supreme Court’s

instruction that “[u]nder § 2254(d), a habeas court must

determine what arguments or theories supported or . . . could

have supported, the state court’s decision; and then it must

ask whether it is possible fairminded jurists could disagree
DECK V. JENKINS 23

that those arguments or theories are inconsistent with the

holding in a prior decision of this Court. . . . [That is] the only

question that matters under § 2254(d)(1).” Harrington,

562 U.S. at 101–02 (emphases added) (internal quotation

marks omitted) (reversing the Ninth Circuit’s grant of habeas

where the Ninth Circuit had applied Brecht de novo, found a

Strickland violation, and “declared, without further

explanation, that the ‘state court’s decision to the contrary

constituted an unreasonable application of Strickland’”).

True, as Justice Sotomayor and the Deck Majority have

pointed out, the Fry Court did suggest that Chapman/AEDPA

was “more liberal” (i.e. more petitioner-friendly) than Brecht.

 See Fry, 551 U.S. at 119–20; see also Slip Op. at 63–64.14

But not only was this dicta, it has since been discredited by

Harrington and again by Ayala. Indeed, the Ayala majority

stated point-blank: “The Fry Court did not hold—and would

have had no possible basis for holding—that Brecht somehow

abrogates the limitation on federal habeas relief that

§ 2254(d) plainly sets out. While a federal habeas court need

not ‘formal[ly]’ apply both Brecht and ‘AEDPA/Chapman,’

AEDPA nevertheless ‘sets forth a precondition to the grant of

habeas relief.’” Ayala, 135 S. Ct. at 2198. That Fry’s dicta

has not survived subsequent precedents is borne out by the

fact that it would have mandated the opposite outcome in

Davis v. Ayala. If—as Justice Sotomayor and the Deck

 

14 That is, in rejecting Ayala’s argument that AEDPA demonstrated a

Congressional desire that federal courts apply Chapman de novo in the

absence of a prior state court harmlessness analysis, the Fry Court

suggested: “[I]t is implausible that, without saying so, AEDPA replaced

the Brecht standard of ‘actual prejudice,’ . . . with the more liberal

AEDPA/Chapman standard which requires only that the state court’s

harmless-beyond-a-reasonable-doubt determination be unreasonable.” Fry

v. Pliler, 551 U.S. 112, 119–20 (2007) (internal quotation marks omitted).
24 DECK V. JENKINS

Majority insist—a finding of “actual prejudice” under Brecht

“necessarily means” that the state’s court’s finding of

harmlessness was unreasonable, then our Circuit’s finding of

actual prejudice under Brecht would have entitled Ayala to

habeas relief. Yet that is exactly what was rejected in

Ayala.

15 The Deck Majority’s reliance on Justice

Sotomayor’s dissent is therefore fundamentally unsound.

B.

The Majority’s erroneous conclusion that we apply the

same Brecht test irrespective of whether a state court has

previously found a claimed constitutional error harmless

beyond a reasonable doubt also appears to stem from a

misinterpretation of the word “subsumes.” In delivering the

opinion of the Ayala Court, Justice Alito explained that “a

prisoner who seeks federal habeas corpus relief must satisfy

Brecht, and if the state court adjudicated his claim on the

merits, the Brecht test subsumes the limitations imposed by

AEDPA.” Ayala, 135 S. Ct. at 2199 (emphasis added). From

the word “subsumes,” the Deck Majority concludes that

Brecht somehow already incorporates AEDPA deference

thereby eliminating the need to conduct an independent

Chapman/AEDPA analysis. See Slip Op. at 63–64. But read

in light of the Ayala Court’s reversal of our holding that a

Brecht analysis alone could support a grant of habeas relief,

the word “subsumes” cannot possibly have the meaning

 

15 I concede that there is tension between the dicta in Fry (though not its

holding) and the holdings of Harrington and Ayala. As such, we are

required to follow binding, on-point precedents (Ayala and Harrington)

over stray, discredited dicta in an off-point case (Fry). Justice

Sotomayor’s advancement of a standard based on a rejected statement in

Fry—a non-AEDPA case—simply cannot be squared with the standard

articulated and applied by the Ayala majority.
DECK V. JENKINS 25

ascribed to it by the Deck Majority. Indeed, Brecht pre-dates

AEDPA. It is thus historically and logically impossible that

Brecht already incorporates AEDPA deference. And the very

fact that Justice Alito distinguished between the traditional

Brecht analysis and the analysis we must undertake “if the

state court [has previously] adjudicated [the prisoner’s] claim

on the merits” only confirms that the Majority’s interpretation

of the word “subsumes” to mean “eliminates,” rather than

“incorporates,” is incorrect. More fundamentally, the

Majority ignores the common-sense meaning of the word,

which Merriam Webster defines as “to include or place

within something larger or more comprehensive, [e.g.,] . . .

red, green, and yellow are subsumed under the term ‘color.’” 

See Subsume, Merriam-Webster Online Dictionary,

http://www.merriam-webster.com/dictionary/subsume (last

visited Nov. 6, 2015). Red, green, and yellow do not stop

being individual and different colors simply because they are

“subsumed” in the broader term “color.” Neither do AEDPA

limitations cease to exist when “subsumed” under Brecht.

True, as the Deck Majority also pointed out, the Court’s

opinion in Ayala suggested that a habeas court need not

“formally” apply both Brecht and Chapman/AEDPA. But as

the Court’s analysis demonstrates, the lack of a procedural

process does not make the Chapman/AEDPA standard any

less of a requirement. See, e.g., Ayala, 135 S. Ct. at 2202–05.

C.

As the Ayala Court made plain, Chapman/AEDPA

provides a “precondition” to relief, see id. at 2198, and it is

Brecht’s standard that “necessarily” cannot be met “if a

fairminded jurist could agree with the [CCA’s] decision that

[the prosecutor’s error] met the Chapman standard of
26 DECK V. JENKINS

harmlessness,” id. at 2199.16 And unlike Brecht’s standard,

which permits a grant of habeas relief as long as the appellate

court would find harmful error, AEDPA deference requires

a finding that the prosecutor’s misstatement was not harmless

under “any reasonable application” of “clearly established”

Supreme Court precedent before habeas relief may be

afforded. See Panetti v. Quarterman, 551 U.S. 930, 948, 953

(2007) (emphasis added). In other words, it is not enough

that the state’s harmlessness determination was incorrect;

Chapman/AEDPA requires that the application of Supreme

Court precedent to the particular facts before the court be so

clearly established that the state court’s determination was

objectively “unreasonable.” Id. And before a court of

appeals may find unreasonableness, it must consider not only

the many “arguments or theories” that the state court actually

offered, but also any that “could have supported” its

determination. See Harrington, 562 U.S. at 102. Here, the

Majority did not do this. To be sure, it cursorily cited to parts

of the CCA’s opinion, but only to lay a foundation for its own

analysis and counterarguments—namely, that (1) the

prosecutor’s misstatement went to the core of Deck’s defense,

 

16 Dissenting in Ayala, Justice Sotomayor argued that the Supreme Court

in Fry had previously “expressly held that federal habeas courts need not

first assess whether a state court unreasonably applied Chapman before

deciding whether that error was prejudicial under Brecht.” Ayala, 135 S.

Ct. at 2211 (Sotomayor, J., dissenting). That is a distortion of Fry, where

the only question presented was whether a federal habeas court should

apply Brecht or Chapman where the state court “failed to recognize the

error and did not review it for harmlessness under . . . Chapman.” Fry,

551 U.S. at 114, 117–120 (emphases added). Because there had been no

state court determination of harmless error, the Fry court had no occasion

to consider the interaction between Brecht and AEDPA where a state court

had made a Chapman harmlessness determination. That was the question

put in Davis v. Ayala.
DECK V. JENKINS 27

and (2) the jury’s question reflected confusion on that very

issue. See Slip Op. at 51–60.

For example, the Majority recognized that the CCA

“emphasized that only minimal physical contact was required

to support a conviction for a lewd act.” Id. at 61. It also

acknowledged that “Deck conceded that although he wanted

to meet in public for their first date and not engage in sexual

activity, [he said,] ‘I probably won’t be able to keep my

hands off of you.’” Id. at 61. But rather than asking whether

any fairminded jurist could find the CCA’s arguments based

on such evidence persuasive, the Majority stated, “[o]n the

other hand, the same evidence suggests the jury could have

based its verdict on the prosecutor’s alternative theory that

Deck intended to commit lewd acts on Amy not on the night

of the meeting, but on some unspecified future date.” Id. at

61–62 (emphases added). The Majority therefore asked the

wrong question: Whether the evidence “could be” susceptible

to another determination is irrelevant where there has been a

prior state court determination. See Harrington, 562 U.S. at

101. Rather, the only proper question on collateral review of

a merits determination is whether any fairminded jurist could

agree with the state court. Id. at 102. When the state court’s

reasons for finding harmlessness constitute a reasonable basis

for the state court’s determination, a federal court’s review is

accomplished: It must deny habeas relief. Here, the Deck

Majority concluded that, because it thought that Deck’s trial

was “fundamentally unfair,” no fairminded jurist could

disagree. Slip Op. at 62, 63–64. This cursory citation to

Chapman/AEDPA’s “fairminded jurist” test does not redeem

the Majority’s analysis, which is bereft of any AEDPA

deference, nor its adoption of a plainly erroneous legal

standard. In sum, the Deck Majority’s analysis is,
28 DECK V. JENKINS

unfortunately, precisely backwards. That does not satisfy AEDPA.

D.

The Majority’s disregard for AEDPA is further belied by

its failure to cite a single Supreme Court case that actually

found constitutional error based on prosecutorial misconduct,

particularly where the jury was properly instructed. See Slip

Op. at 47–49. Indeed, every Supreme Court17 case involving

prosecutorial misconduct cited by the Majority found such

error harmless and denied habeas relief. See Boyde v.

California, 494 U.S. 370, 386 (1990) (denying habeas relief

based on prosecutorial commentary that might mislead jury

to adopt an improperly narrow interpretation of jury

instructions),18 Darden v. Wainwright, 477 U.S. 168, 181–82

 

17 The Majority also flouts AEDPA to the extent it purports to rely on

Ninth Circuit precedent—which is inapposite under AEDPA. See Parker

v. Matthews, 132 S. Ct. 2148, 2155 (2012) (For purposes of AEDPA,

“circuit precedent does not constitute ‘clearly established Federal law, as

determined by the Supreme Court.’”); see also 28 U.S.C. § 2254(d)(1)

(expressly requiring that the state court’s determination involve an

unreasonable application of “clearly established Federal law, as

determined by the Supreme Court of the United States” (emphasis added)).

 

18 In Boyde, the jury instructions stated, in relevant part, that the jury

could consider “[a]ny other circumstance which extenuates the gravity of

the crime even though it is not a legal excuse for the crime.” Boyde v.

California, 494 U.S. 370, 373–74 (1990). The petitioner argued that these

instructions were ambiguous as to whether the jury could consider

evidence of the defendant’s “background and character” (as opposed to

only “crime-related” mitigation evidence) in sentencing proceedings. Id.

at 378, 384. The petitioner also urged that the prosecutor’s statements

immediately before deliberations that “[n]othing I have heard lessens the

seriousness of this crime” encouraged the narrower (and incorrect)

understanding of the instruction. Id. at 385, 404. In finding no

constitutional violation and denying habeas relief, the Court noted that
DECK V. JENKINS 29

(1986) (denying habeas relief and holding that numerous

“undoubtedly” “improper” comments by the prosecutor were

not enough to deprive the petitioner of a fair trial);19 Weeks v.

Angelone, 528 U.S. 225, 227, 237 (2000) (denying habeas

relief where, instead of answering the jury’s question, the

judge directed the jury to a constitutionally sufficient

instruction, thus arguably failing to resolve the jury’s

confusion). It is a weak reed indeed to rely on precedents that

found harmless error in analogous circumstances to urge they

can render the same finding by the CCA “objectively

unreasonable”—such that “no fairminded jurist could agree”

with it.

Ultimately, the Deck Majority appears to rely solely on

the general principle that a prosecutor’s misstatement could

amount to a prejudicial constitutional violation if it “so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Darden, 477 U.S. at 181

(nonetheless finding that the prosecutor’s numerous

“improper” statements did not meet this standard). And while

“arguments of counsel generally carry less weight with a jury than do

instructions from the court . . . . [and] must be judged in the context in

which they were made.” Id. at 384–86 (passage cited by the Deck

majority). Nothing about Boyde renders the CCA’s analysis “objectively

unreasonable.”

 

19 In Darden, the prosecutor suggested that the death penalty would be

the only guarantee that the defendant would not commit another heinous

crime in the future, that the defendant was an “animal,” that the defendant

should not be let out of his prison cell without a “leash,” and that the

prosecutor wished the defendant’s face had been “blown off” by a

shotgun. See Darden v. Wainwright, 477 U.S. 168, 179–80, nn.9–12

(1986). These inflammatory statements, although clearly constituting

prosecutorial misconduct, did not so irretrievably “infect” the trial with

unfairness so as to violate due process.
30 DECK V. JENKINS

the Majority is correct that Darden provides the relevant20

law for purposes of AEDPA, see Slip Op. at 46–47, the

question under AEDPA is whether the prosecutor’s

misstatement violated Deck’s due process rights under “any

reasonable application of [Darden].” See Panetti v.

Quarterman, 551 U.S. 930, 948, 953 (2007).21 In other

words, even assuming arguendo that the broad standard to be

applied here is “clearly established,” its application to the

present facts certainly is not. See supra, n.21.

If anything, clearly established Supreme Court precedent

supports the CCA’s application. For example, in denying

habeas relief, Boyde explained that “arguments of counsel

generally carry less weight with a jury than do instructions

from the court. . . . [and] must be judged in the context in

which they are made.” Boyde, 494 U.S. at 384–85 (selection

quoted by Deck Majority, Slip Op. at 49). Here, the CCA

noted the overwhelming focus of the prosecutor’s lengthy

closing argument: that Deck did intend to “touch” Amy on

 

20 The majority’s cherry-picked citation to Parker v. Matthews, 132 S.

Ct. 2148 (2012), to support its position that Darden’s “highly generalized”

standard is “clearly established” for the purposes of AEDPA, is

misleading. Parker merely affirmed that AEDPA’s reference to “clearly

established law” refers only to Supreme Court precedent—not to any

individual Circuit’s precedent. See Parker, 132 S. Ct. at 2153 (“The

‘clearly established Federal law’ relevant here is our decision in Darden

v. Wainwright . . . .”). Nothing about Parker suggests that Darden’s

application to new fact patterns will always—or even often—be so

“clearly established” as to render a state court’s opinion “unreasonable.”

 

21 Panetti provides an example of “clearly established” law where a state

court’s application of law was “unreasonable” since the petitioner was

indisputably incompetent and had been denied the process mandated by

controlling Supreme Court precedent for incompetent defendants. Panetti,

551 U.S. at 952–53.
DECK V. JENKINS 31

the night of their date. See Deck, 2011 WL 2001825, at *12. 

The CCA reasoned that the prosecutor’s misstatement was an

“isolated departure [from that theme] in a few stray words.” 

Id. Its finding that, in context, the prosecutor’s misstatement

was harmless is consistent with Boyde’s holding and analysis. 

Id.

Likewise, it is clearly established that “[a] jury is

presumed to follow its instructions.” Weeks, 528 U.S. at 234

(selection also quoted by the Deck Majority). Here, it is

undisputed that Deck’s jury was “properly instructed” on the

relevant principles of attempt after the prosecutor’s

misstatement regarding the law of attempt. The judge also

instructed the jury to follow these instructions over

“conflict[ing] statements of counsel.” True, the instructions

did not expressly state that the jury must find an intent to

touch Amy on the first night. But both Boyde and Weeks,

held that a jury is presumed to have understood and correctly

applied jury instructions that are “not concededly

erroneous”—even if the instructions are not “pin point.” See,

e.g., Boyde, 494 U.S. at 380, 384–86 (in a capital proceeding,

the Eighth Amendment is not violated absent a “reasonable

likelihood” that the jury incorrectly interpreted its jury

instructions as precluding consideration of mitigating

evidence). In Weeks, for example, the jury submitted a

question about whether it had a “duty,” or merely discretion,

to impose the death penalty. Weeks, 528 U.S. at 229. Instead

of answering the jury’s question directly, the judge pointed

the jury to “Instruction #2.” Id. The Supreme Court found

that, because the jury instructions were accurate and

“constitutionally adequate,” the jury’s failure to seek

additional clarification—even on an issue as important as

whether or not to apply the death penalty—must be presumed

to indicate that the jury understood and properly applied its
32 DECK V. JENKINS

instructions. Id. at 234 (“To presume otherwise would

require reversal every time a jury inquires about a matter of

constitutional significance, regardless of the judge’s

answer.”). The state court’s finding of no constitutional error

was therefore not an unreasonable application of clearly

established law under section 2254(d). Id. at 237.

Similarly in Deck’s case, the jury received accurate jury

instructions.22 It is a reasonable reading of Weeks to hold that

the failure of Deck’s newly constituted jury to re-submit its

question regarding the immediacy element of attempt

compels, or at least supports, a presumption that the jury

understood its instructions and no longer needed clarification. 

See id. at 234 (reasoning that it is enough that “[h]ad the jury

desired further information,” it “probably” would have

submitted another question). In fact, the application of

Weeks’ presumption is even more clear here, because the trial

court actually invited Deck’s jury to re-submit its question,

see supra, n.10, yet the jury still failed to do so.

 

22 It is worth noting that—notwithstanding the supposed centrality of the

prosecutor’s misstatement to Deck’s defense—Deck’s counsel did not

object to the misstatement, move to strike it, or request a pin-point

instruction that the jury was required to find Deck had made an attempt to

touch “Amy” that night. The defense’s failure to seek any corrective

action corroborates the CCA’s view that the prosecutor’s misstatement of

law was merely an “isolated departure . . . in a few stray words.” Deck,

2011 WL 2001825, at *12. In fact, it was only after the jury’s question

that the parties began debating this finer point of California law. Even

then, the question was so close that, after briefing and significant

argument, the trial judge was prepared to resolve it in the prosecutor’s

favor. On appeal, the CCA disagreed, but held that only two short clauses

of the prosecutor’s argument misstated California law. See id. (“The

prosecutor erred, however, by suggesting an intent to engage in a lewd act

at ‘just some point in the future’ or ‘the next week, maybe [in] two

weekends’ sufficed.” (alteration in original)).
DECK V. JENKINS 33

In any event, the CCA could reasonably have concluded

that the evidence against Deck was so strong that the jury

would have found him guilty irrespective of the judge’s

answer to its question. Darden itself emphasized that strong

evidence against a petitioner “reduce[s] the likelihood that [a]

jury’s decision was influenced by [a prosecutor’s improper]

argument.” Darden, 477 U.S. at 182. Here, the CCA found

“ample evidence . . . to support the jury’s finding [that] Deck

attempted to commit a lewd act with ‘Amy’” on the night in

question. Deck referred to Amy as “hot,” a “hottie,” “sexy,”

and “slutty”; he told Amy he wanted to date her, to kiss her,

to perform oral sex on her, and to do other sex acts that

“boyfriends and girlfriends” do. Deck’s stated intention to

“see what’s on TV” on the first date, coupled with his arrival

after dark with a camera, strongly supports an inference that

Deck intended to go to Amy’s apartment after he had

confirmed that she was “real.” Deck’s supposedly

exculpatory statements that he was “sick” and that he was

“just bringing [Amy] pie” do not compel a contrary

conclusion. Deck had previously used “pie” as an allusion to

oral sex. A fairminded juror could readily conclude that

Deck—being a law enforcement officer—used the

euphemism in setting up his first meeting with Amy to

“create a defense” for himself (as the prosecutor argued) until

he had confirmed that Amy was real. Likewise, a fairminded

juror could be highly skeptical of Deck’s claim that he was

“ill,” given Deck’s ensuing decision to drive 45 minutes to

Amy’s house ostensibly just to “say hi.”

In sum, the CCA’s analysis was a patently reasonable

application of clearly established Supreme Court precedent. 

Had the Majority applied Ayala and AEDPA properly, it

could not have reached its result. Of course, were it

reviewing these facts de novo, the panel might disagree with
34 DECK V. JENKINS

the CCA. In fact, the Deck Majority makes a good argument

in that regard. But that is not the question on collateral,

habeas review. As Judge M. Smith argues persuasively in his

dissent, “an unreasonable application of federal law is

different from an incorrect application of federal law” and

that “the majority commits the same error the Supreme Court

has criticized our court for making time after time by

‘collapsing th[is] distinction . . . .” Deck, 768 F.3d at 1031

(quoting Nevada v. Jackson, 1133 S. Ct. 1990, 1994 (2013)). 

It is this kind of disregard for binding Supreme Court

precedent, Judge M. Smith explained in dissent, that has led

the Supreme Court “in its four most recent terms . . . [to]

reverse[] us fourteen times in cases involving our application

of AEDPA . . . ten of which reversals have been unanimous.” 

Id.

As shown above, none of the precedents cited by the Deck

Majority compel a finding that the prosecutor’s misstatement

was prejudicial under “any reasonable application” of

Darden’s very general standard, see Panetti, 551 U.S. at 948,

953, and all in fact support the CCA’s analysis. To reach a

contrary conclusion, the Deck Majority adopts an analytical

approach that the Supreme Court this year expressly

rejected—adopting Justice Sotomayor’s dissent to hold that

a federal court’s de novo finding of “actual prejudice”

“necessarily” renders the state’s court’s contrary

determination “unreasonable.”

IV.

The Deck Majority’s analysis cannot be squared with

Davis v. Ayala, 135 S. Ct. 2187 (2015). Because this Court’s

failure to correct the Majority’s error through re-hearing en
DECK V. JENKINS 35

banc perpetuates both an intracircuit and intercircuit split, I

respectfully dissent from denial of re-hearing en banc.

OPINION

CHRISTEN, Circuit Judge:

Stephen Deck was convicted in California of one count of

an attempted lewd act upon a child under the age of 14. After

exhausting review of his conviction in state court, he

petitioned the federal district court for habeas relief under

28 U.S.C. § 2254, arguing that prosecutorial misstatements

made during rebuttal closing argument deprived him of a fair

trial. The district court dismissed Deck’s petition. We

reverse the district court’s judgment and remand for further

proceedings.

BACKGROUND

Under the Antiterrorism and Effective Death Penalty Act

(AEDPA), “state court findings of fact are presumed correct

unless rebutted by clear and convincing evidence.” Gonzales

v. Pliler, 341 F.3d 897, 903 (9th Cir. 2003) (citing 28 U.S.C.

§ 2254(e)(1)). Both Deck and the State agree that the

California Court of Appeal (CCA) correctly framed the

underlying facts of the case. Our opinion relies on, and

quotes at length from, the CCA’s opinion in People v. Deck,

No. G043434, 2011 WL 2001825 (Cal. Ct. App. May 24,

2011).
36 DECK V. JENKINS

The Alleged Crime

In February 2006, the Laguna Beach Police Department

collaborated with volunteers from an organization called

Perverted Justice “on a sting operation to identify and arrest

adults using the Internet to meet minors for sex.” Id. at *1. 

“After online conversations confirmed the adult’s intent, . . .

decoys arranged a meeting between the adult and fictitious

minor at an apartment,” where the adult would be arrested. 

Id.

Deck, who was then a lieutenant with the California

Highway Patrol, began chatting online with a fictitious girl

named “Amy.”1 Id. Amy represented to Deck that she was

13 years old, and her online profile included a photograph of

an actual 13-year-old girl. Id. The two exchanged sexually

suggestive messages, and Deck expressed an interest in

taking photographs of Amy. Id. at *1–2. They arranged a

meeting for an upcoming Saturday. Id. at *2. Amy asked

Deck to come to her apartment, but Deck said he was “not

comfortable meeting at your house” and proposed meeting in

public. Id. “Deck also suggested that after their first date, if

their chemistry remained as good as it seemed during their

chats, they would arrange another date and engage in some of

the sexual activity they discussed online.” Id. But he said:

“‘I probably won’t be able to keep my hands off of you.’” Id.

On the day of their planned meeting, Deck claimed not to be

feeling well but “promised to stop by [Amy’s] apartment for

their first meeting,” at a time when Amy’s mother was not

around. Id. at *3. In a subsequent online chat, he asked Amy

to meet him “in a public place close to her apartment.” Id. 

 

1

 We use “Amy” to refer to the Perverted Justice volunteer who played

this role.
DECK V. JENKINS 37

He said he would be bringing her a piece of pie.2 Id. “Before

signing off his computer, Deck added, ‘Remember I am sick

so no kissing or nothing. Just bringing you your pie.’” Id.

The CCA opinion described what happened next:

Deck made the 45 mile drive from his

residence to “Amy’s” apartment, arriving

around 8:35 p.m. He parked in the apartment

complex’s parking lot and walked to the park

for his rendezvous with “Amy.” Spotting a

young female sitting at a picnic table in the

park, Deck approached and asked whether she

was “Amy.” The female responded by asking

whether he was “Steve.” When Deck

acknowledged his identity, the police arrested

him.

Investigators searched Deck and found a

digital camera and the piece of pie he

promised to bring “Amy.” They also searched

Deck’s car, where they found a MapQuest

printout with directions to “Amy’s” apartment

and six packaged condoms past the listed

expiration date.

Id.

 

2

 In online messages, Deck had repeatedly used the term “pie” as a

euphemism for performing a sex act.
38 DECK V. JENKINS

Procedural History

Deck was charged with attempt to commit a lewd or

lascivious act (“lewd act”) upon a child. The CCA explained

that, under California law:

An attempt to commit a lewd act upon a

child requires both an intent to arouse, appeal

to, or gratify “the lust, passions, or sexual

desires of [the defendant] or the child” “and

. . . a direct if possibly ineffectual step toward

that goal . . . .”

For an attempt, the overt act must go

beyond mere preparation and show that the

[defendant] is putting his or her plan into

action; it need not be the last proximate or

ultimate step toward commission of the crime

or crimes, nor need it satisfy any element of

the crime. However, as we have explained,

“[b]etween preparation for the attempt and the

attempt itself, there is a wide difference. The

preparation consists in devising or arranging

the means or measures necessary for the

commission of the offense; the attempt is the

direct movement toward the commission after

the preparations are made.” “[I]t is sufficient

if it is the first or some subsequent act

directed towards that end after the

preparations are made.”

Id. at *7 (alterations in original) (citations omitted). Deck

was convicted after a jury trial and sentenced to 365 days in

county jail and five years formal probation.
DECK V. JENKINS 39

One of Deck’s arguments to the CCA was that the

prosecutor’s rebuttal closing argument misstated the law of

attempt. Id. at *11. The CCA agreed, but held that the

prosecutor’s “lone misstatement” of the law was rendered

harmless by the trial court’s correct jury instructions. Id.

Because the issue in this appeal is highly fact-specific, it is

worth providing the CCA’s description and analysis of the

prosecutor’s error in (close to) its entirety.

The CCA first summarized the prosecutor’s statements as

follows:

On rebuttal, the prosecutor agreed with

defense counsel that “I need to prove to you

that [Deck] took a direct, but ineffectual step

on or about February 18, 2006.” Deck

focuses on a handful of ensuing comments as

the basis for his misconduct claim that the

prosecutor misstated the law of attempt.

Specifically, Deck zeroes in on four

sentences, italicizing a few of the prosecutor’s

words in just two sentences of his closing

argument, as follows: “I don’t have to prove

to you that he was going to commit a lewd act

on or about February 18th, 2006 . . . . [¶] But

even if his intent was just to meet her, get to

know her, break the ice and follow the next

day, the next week, maybe [in] two weekends

when mom’s gone, again, as long as he took a

direct, but ineffectual step towards that goal,

that is all I need. [¶] I don’t need to prove to

you that he was going to commit a lewd act on

that day, just some point in the future direct
40 DECK V. JENKINS

and ineffectual step that day [sic: garbled

diction] . . . . He was on that day going to

commit a lewd act with Amy.” (Italics

added.)

Id. at *11 (alterations in original) (citations omitted).

The CCA next discussed whether the prosecutor’s

statements were erroneous:

In this excerpt isolated by defendant, the

prosecutor’s first and final sentences present

no problem. First, the prosecutor did not have

to prove Deck “was going to commit” a lewd

act with “Amy” in the sense that he would be

successful; after all, lack of success defines an

attempt. As the prosecutor explained just a

few sentences later: “I don’t have to prove to

you that he was going to actually succeed in

committing the lewd act on that day.” And, in

defendant’s excerpt, the prosecutor’s final

sentence properly focused the jury’s attention

on the day he met with “Amy,” emphasizing,

“He was on that day going to commit a lewd

act with Amy.” (Italics added.) This was the

prosecutor’s repeated emphasis, arguing

several times, for example, that defendant was

“[d]efinitely going down there to engage in a

lewd act, lewd contact with Amy”; “If Amy

was a real 13–year–old girl, [in] the

defendant’s own[] words, he wouldn’t be able

to keep his hands off of her”; “He was on that

day going to commit a lewd act with Amy”;
DECK V. JENKINS 41

and characterizing the idea that Deck would

“just see her that day” as “baloney.”

Id. (alterations in original).

The CCA concluded that the prosecutor misstated the law:

“Deck argues the prosecutor in his closing argument

misstated the law of attempt. He did . . . .” Id. The CCA

explained:

The prosecutor erred . . . by suggesting an

intent to engage in a lewd act at “just some

point in the future” or “the next week, maybe

[in] two weekends” sufficed. As our Supreme

Court has explained, to establish an attempt

the defendant’s overt act “must go beyond

mere preparation and show that the

[defendant] is putting his or her plan into

action.” Indeed, the acts of the defendant

must go so far that they would result in the

accomplishment of the crime unless frustrated

by extraneous circumstances.

. . . .

Here, pushing defendant’s intent to

commit a lewd act on “Amy” to, potentially,

“next week” or in “two weekends” or to “just

some point in the future” negates the essential

element necessary to constitute an attempt

. . . . The merely speculative possibility of a

potential future rendezvous is inconsistent

with the inevitable nature of an attempt, where

the offense will be accomplished “‘unless
42 DECK V. JENKINS

frustrated by extraneous circumstances’” or

“‘absent an intervening force.’”

Id. at *12 (alterations in original) (citations omitted).

Having decided that the prosecutor’s misstatements of

California law negated an essential element of attempt, the

CCA concluded that the misstatements were not prejudicial

to Deck:

[T]he prosecutor’s errant gloss on the law of

attempt does not require reversal. First, it was

an isolated departure in a few stray words and

not the focus of the prosecutor’s argument,

which properly remained on Deck’s clear

intent, coupled with the steps he took, to

commit a lewd act with the victim on the

weekend he actually met with her.

More importantly, the trial court properly

instructed the jury on the relevant principles. 

The court instructed the jury the necessary

“direct step” to constitute an attempt “requires

more than merely planning or preparing to

commit” the target offense, but instead “goes

beyond planning or preparation” with a

“direct movement towards the commission of

the crime after preparations are made.”

Id. (citation omitted).

The CCA reasoned that, based solely on these jury

instructions:
DECK V. JENKINS 43

[T]he jury knew it was not enough to plan or

prepare to commit a lewd act at a potential

later rendezvous. Rather, the attempt must

consist of “an immediate step that puts the

plan in motion so that the plan would have

been completed if some circumstance outside

the plan had not interrupted the attempt.” We

presume the jury followed these instructions.

Id.

The CCA recognized that Deck’s argument relied heavily

on the jury’s request for clarification of the law relating to the

prosecutor’s closing rebuttal argument:

[A]bout an hour into deliberations, the jury

sent the trial court a note asking it to

“‘[c]larify [the] law as it relates to whether

defendant did not have to do anything that

day, only attempted [sic] to put it into play.’” 

The trial court excused the jury an hour early

for the weekend recess to discuss the matter

with counsel, and then excused the jury after

only an hour of deliberation on Monday

because defense counsel became ill. At the

outset of deliberations on Tuesday, the trial

court seated an alternate juror to replace a

juror who had called in sick.

The trial court had discussed with counsel

how to respond to Friday’s jury note but,

given deliberations had to begin anew with

the substitute juror, the trial court instructed

the jury as follows: “I know that there was a
44 DECK V. JENKINS

previous question sent out by the foreperson,

Juror # 9. In light of the fact I have just given

you this instruction that you have to start all

over again, disregard past deliberations, you

need to follow that instruction. If you have

any further questions that you want answered

once you start deliberating with the jury, send

that out in the question format and we will

answer it for you.”

Id. at *13.

Finally, the CCA reasoned that the jury’s failure to

resubmit its question (or a similar one) after restarting

deliberations demonstrated the jury was not misled by the

prosecutor’s misstatements:

The jury, presumably having taken a fresh

look—or a first look in the case of the new

juror—at the trial court’s instructions, had no

further questions for the trial court and

reached a verdict. Deck does not dispute the

trial court’s instructions concerning attempt

correctly stated the law. We must presume

the jury understood and followed those

instructions. Consequently, there is no basis

to conclude the jury disregarded the trial

court’s instructions and instead fixated on an

isolated comment by the prosecutor.

Id.

The CCA’s version of events contains most of the details

relevant to this appeal, but three additional points are helpful. 
DECK V. JENKINS 45

First, Deck’s trial defense was that Deck, a California

Highway Patrol Officer, approached his initial meeting with

Amy cautiously and lacked the mental intent to engage in a

lewd act “on that date.” Defense counsel emphasized this

point heavily during his closing argument. The prosecutor

recognized the importance of this defense argument and told

the judge that the purpose of his rebuttal was to dispute it. 

Second, though the CCA described the prosecutor’s

misstatements as an “isolated departure in a few stray words,”

there was another important misstatement by the prosecutor

during rebuttal: “Even if you buy this baloney just see her

that day, not touching her, stay five feet away from her,

follow up the next day if they got along, then commit the

lewd act, that is sufficient under the law for the defendant to

be guilty.” Third, the trial court never instructed the jury that,

in order to convict, it was required to find beyond a

reasonable doubt that Deck had moved beyond preparation on

the night he was arrested and would have committed a lewd

act that night, but for his arrest.

Deck filed a petition for review to the California Supreme

Court, which denied review. Deck then filed a petition in

federal court for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. A federal magistrate judge recommended dismissal

of the petition with prejudice, and the district court adopted

the magistrate’s findings and recommendations. Deck

appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 2253. We review

the district court’s denial of Deck’s § 2254 habeas corpus

petition de novo. Gonzalez v. Duncan, 551 F.3d 875, 879

(9th Cir. 2008). Looking through the district court’s decision,
46 DECK V. JENKINS

we examine the last reasoned state-court decision, which in

this case is the opinion of the CCA. See Van Lynn v. Farmon,

347 F.3d 735, 738 (9th Cir. 2003).

The CCA decided that “pushing defendant’s intent to

commit a lewd act on ‘Amy’ to, potentially, ‘next week’ or in

‘two weekends’ or ‘just some point in the future’ negate[d]

the essential element necessary to constitute an attempt.” 

Deck, 2011 WL 2001825, at *12. In other words, the CCA

established that a trial error occurred through the prosecutor’s

misstatement of California law. See Wood v. Ryan, 693 F.3d

1104, 1113 (9th Cir. 2012) (prosecutorial misconduct is a trial

error). We do not review this ruling, nor do we review the

state court’s interpretation of the California law of attempt as

applied to Deck’s case. See Bradshaw v. Richey, 546 U.S. 74,

76 (2005) (“[A] state court’s interpretation of state law,

including one announced on direct appeal of the challenged

conviction, binds a federal court sitting in habeas corpus.”).

Whether a trial error amounts to a constitutional violation

depends on the extent to which it renders the proceedings

unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986). A

constitutional trial error does not warrant reversal if “it was

harmless beyond a reasonable doubt.” Chapman v.

California, 386 U.S. 18, 24 (1967). On habeas review, we

must evaluate whether the CCA’s decision “was contrary to,

or involved an unreasonable application of, [this] clearly

established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1).
DECK V. JENKINS 47

DISCUSSION

I. The CCA’s determination that no constitutional

violation occurred was an unreasonable application of

clearly established federal law.

A. Clearly established federal law provides that a

prosecutor’s improper comments amount to a

constitutional violation if they rendered the trial

fundamentally unfair.

It is clearly established under Supreme Court precedent

that a prosecutor’s “misleading . . . arguments” to the jury

may rise to the level of a federal constitutional violation. 

Sechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir. 2008) (citing

Darden, 477 U.S. at 181–82); see also Allen v. Woodford,

395 F.3d 979, 997 (9th Cir. 2005) (citing Darden for

conclusion that improper prosecutorial argument may violate

federal constitutional rights). The Supreme Court recently

reaffirmed that Darden is the “clearly established Federal

law” relating to a “prosecutor’s improper comments” for

purposes of AEDPA review. Parker v. Matthews, 132 S. Ct.

2148, 2153 (2012).3 The “clearly established Federal law”

from Darden is that a prosecutor’s improper comments

amount to a constitutional violation if they “so infected the

trial with unfairness as to make the resulting conviction a

denial of due process.” Darden, 477 U.S. at 181 (quoting

 

3

 The dissent suggests that we treat Parker itself as “clearly established

Federal law.” In fact, we cite Parker to illustrate that the rule from

Darden is clearly established—and was at the time of the state court’s

decision. See Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000)

(recognizing that persuasive authority “may help us determine what

[Supreme Court] law is ‘clearly established’”).
48 DECK V. JENKINS

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see

also Caldwell v. Mississippi, 472 U.S. 320, 340 (1985). The

Court has acknowledged that “the Darden standard is a very

general one,” Parker, 132 S. Ct. at 2155, but AEDPA

“recognizes . . . that even a general standard may be applied

in an unreasonable manner,” Panetti v. Quarterman, 551 U.S.

930, 953 (2007). A federal court may find “an application of

a principle unreasonable when it involves a set of facts

‘different from those of the case in which the principle was

announced.’” Id. (quoting Lockyer v. Andrade, 538 U.S. 63,

76 (2003)).

We recognize that “clearly established federal law” for

purposes of AEDPA review includes only “the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions.” 

White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting

Howes v. Fields, 132 S. Ct. 1181, 1187 (2012)). Therefore,

we do not construe the reasoning used in prior Supreme Court

decisions as an “elaborate, multistep test.” Parker, 132 S. Ct.

at 2155. No single consideration should be treated as either

necessary or sufficient to reach a decision. See id. at 2155–56

(holding appellate court’s use of multistep test for

unconstitutionality of prosecutorial misconduct improperly

departed from the “highly generalized standard” in Darden).

Holding that a condemnatory closing argument did not

deprive the petitioner in Darden of a fair trial, the Supreme

Court reasoned that the prosecutor “did not manipulate or

misstate the evidence” and that the trial court properly

instructed the jury “that the arguments of counsel were not

evidence.” 477 U.S. at 181–82. The Court also considered

the “heavy” weight of the evidence against the petitioner,

which “reduced the likelihood that the jury’s decision was

influenced by argument.” Id. at 182.
DECK V. JENKINS 49

The Supreme Court elsewhere observed that:

arguments of counsel generally carry less

weight with a jury than do instructions from

the court. The former are usually billed in

advance to the jury as matters of argument,

not evidence, and are likely viewed as the

statements of advocates; the latter, we have

often recognized, are viewed as definitive and

binding statements of the law. Arguments of

counsel which misstate the law are subject to

objection and to correction by the court. This

is not to say that prosecutorial

misrepresentations may never have a decisive

effect on the jury, but only that they are not to

be judged as having the same force as an

instruction from the court. And the arguments

of counsel, like the instructions of the court,

must be judged in the context in which they

are made.

Boyde v. California, 494 U.S. 370, 384–85 (1990) (emphasis

added) (citations omitted). We recognize that “[a] slight

misstatement of law by a prosecutor can be rendered harmless

by the court’s proper instruction to the jury.” United States

v. Mendoza, 244 F.3d 1037, 1045 (9th Cir. 2001). And under

Supreme Court precedent, a jury is presumed to follow the

trial court’s instructions. Weeks v. Angelone, 528 U.S. 225,

234 (2000).
50 DECK V. JENKINS

B. The CCA implicitly ruled that the prosecutor’s

misstatements did not amount to a constitutional

violation.

The heading of the relevant section of the CCA’s decision

analyzing the prosecutor’s rebuttal closing argument was:

“The Prosecutor’s Misstatement Concerning Attempt Was

Harmless.” The CCA agreed with Deck that the prosecutor

misstated the law of attempt but held that “this lone

misstatement—counteracted by the trial court’s correct

instructions—was harmless.”4

 Deck, 2011 WL 2001825, at

*11. We accept the CCA’s interpretation of California law

and take as established that prosecutorial error occurred. The

CCA did not expressly reach the question whether this error

amounted to a violation of federal due process, so we must

consider whether the CCA’s harmlessness determination

amounted to an implied ruling that no federal constitutional

violation took place.

The Supreme Court has defined a “fair trial” as “a trial

resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995). In Hein v. Sullivan,

601 F.3d 897 (9th Cir. 2010), our court summarized the

factors the Supreme Court evaluated in Darden to determine

whether the petitioner’s trial was “fair,” and then observed

that consideration of the Darden factors “appears to be

equivalent to evaluating whether there was a ‘reasonable

probability’ of a different result.” Id. at 914–15. California

courts use the “reasonable probability” standard to evaluate

whether prosecutorial misconduct renders a trial

fundamentally unfair under state law. See People v. Partida,

 

4

 As explained below, the prosecutor’s error was more than a single

“lone misstatement,” but this point is not relevant here.
DECK V. JENKINS 51

122 P.3d 765, 771 (Cal. 2005); People v. Espinoza, 838 P.2d

204, 212 (Cal. 1992). We therefore conclude that, although

the CCA did not independently evaluate the federal

constitutional question, its harmlessness analysis can be seen

as an implied ruling that no federal constitutional violation

occurred because the prosecutor’s error was harmless.5

C. The CCA’s conclusion was unreasonable.

To be entitled to habeas relief, it is not enough for Deck

to show that the CCA’s determination that no constitutional

violation occurred was “incorrect or erroneous.” He must

show the CCA’s determination was “objectively

unreasonable.” Lockyer, 538 U.S. at 75. A state court

determination is objectively unreasonable only when “there

is no possibility fairminded jurists could disagree that the

state court’s decision conflicts with th[e] [Supreme] Court’s

precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). 

Because the prosecutor’s misstatements were not inadvertent

or isolated; because the jury was never correctly instructed

that, in order to convict, it had to find Deck had moved

beyond preparation and would have engaged in a lewd act

with Amy the night he was arrested; and because the evidence

concerning the temporal aspect of Deck’s intent was not

overwhelming, we conclude this stringent standard has been

met.

1. The prosecutor’s misstatements were not

inadvertent or isolated.

In its analysis of prejudice, the CCA reasoned that “the

prosecutor’s errant gloss on the law . . . . was an isolated

 

5

 The dissent reaches the same conclusion.
52 DECK V. JENKINS

departure in a few stray words and not the focus of the

prosecutor’s argument.” Deck, 2011 WL 2001825, at *12. 

But it is clear the erroneous assertions of law in the

prosecutor’s closing rebuttal argument were not mere “stray

words,” they were a direct response to the central theory of

Deck’s case. See 28 U.S.C. § 2254(e)(1).

The contention that Deck did not intend to commit a lewd

act on the night of the meeting was absolutely central to his

defense. In closing argument, defense counsel told the jury

that, while Deck’s conduct may have been reprehensible, it

did not constitute attempt. He stressed that Deck’s defense

was a technical one, telling the jury that this was a case where

law and justice might not be “on the same side” and “don’t

necessarily meet.” Defense counsel expressly argued to the

jury that “Mr. Deck never had the intent in the first place to

engage in a lewd act” on the date of the meeting, and that

“Mr. Deck had a definite and unambiguous intent not to

engage in a lewd act on that date” (emphasis added). 

Leaving no doubt that the jury would be required to examine

the precise elements of the law of attempt in California,

defense counsel argued: “Like it or not[,] the law is on Mr.

Deck’s side in this case. Like it or not.” Whether Deck had

advanced beyond mere preparation and intended to commit

a lewd act on the night of the meeting was not a side issue in

his trial; it went to the heart of Deck’s defense, and his

counsel made this abundantly clear to the jury.

The prosecutor’s statements about the purpose of his

rebuttal closing argument contradict the CCA’s description of

his misstatements as stray words. After the jury sent its note

requesting clarification on the temporal requirement of

Deck’s intent, the prosecutor claimed that his rebuttal was
DECK V. JENKINS 53

necessary to convey the State’s position on what the law

required the State to prove:

The Court: You did not object at all to

[defense counsel’s] argument. He clearly

argued to the jury that [Deck] had to commit

a lewd act that day, that he had the intent to do

that.

[Prosecutor]: That is what my rebuttal was

for. I am arguing what the law is.

(emphasis added). The prosecutor’s view that the law did not

require him to prove Deck intended to engage in a lewd act

on the night of the meeting is precisely the one the CCA later

rejected.

There is no doubt the trial court recognized that the

defense and prosecution made directly conflicting statements

to the jury regarding what the jury had to find to convict

Deck, and that the court’s written instructions did not address

the issue. Because this question was pivotal to Deck’s

defense, the trial judge stated that he would “even entertain

additional closing argument on [the] issue based on the fact

that there were two different things argued to the jury.” The

judge observed that it was “not surprising” that the jury asked

for clarification in light of this difference.

The CCA’s characterization of the prosecutor’s

misstatements as brief and errant departures from an

otherwise sound argument is contradicted by the record. The

State’s rebuttal unambiguously repeated several erroneous

statements regarding what California law required to convict

Deck. The misstatements were the counterpunch to Deck’s
54 DECK V. JENKINS

“like it or not” closing argument. The prosecutor told the

jurors that although the evidence showed Deck intended to

engage in lewd conduct that night, they could convict Deck

even if they agreed with the defense that the evidence raised

reasonable doubt about when Deck would have followed

through:

But even if his intent was just to meet her, get

to know her, break the ice and follow up the

next day, the next week, maybe two weekends

when mom’s gone, again, as long as he took a

direct, but ineffectual step towards that goal,

that is all I need.

I don’t need to prove to you that he was

going to commit a lewd act on that day, just

some point in the future [sic] direct and

ineffectual step that day. So the best case

scenario for the defense is baloney. . . . Even

if you buy this baloney[,] just see her that day,

not touching her, stay five feet away from her,

follow up the next day if they got along, then

commit the lewd act, that is sufficient under

the law for the defendant to be guilty.

The prosecutor’s repetition of the phrase “even if”

unquestionably shows that he presented alternative theories

of the case on which the jury could rely to convict Deck,

rather than making a passing incorrect statement of his

primary argument. The prosecutor’s unequivocal

assertions—“that is all I need” and “that is sufficient under

the law for the defendant to be guilty”—leave no doubt he

was arguing, incorrectly, that the jury could still convict Deck
DECK V. JENKINS 55

even if it had doubt about whether Deck intended to engage

in a lewd act on the night of the meeting.

The unequivocal manner in which the prosecutor

presented his alternative theory, using statements like

“sufficient under the law,” created a significant likelihood

that the comments would be “viewed as definitive and

binding statements of the law,” rather than merely as

argument. See Boyde, 494 U.S. at 384. We need not engage

in speculative Monday morning quarterbacking to know the

rebuttal argument may have seriously misled the jury; the

jury’s note to the trial court after the start of deliberations

went straight to this contested point of law. It asked the court

to “[c]larify law as it relates to whether defendant did not

have to do anything that day only attempt to put it into play.” 

In other words, the jury asked whether it needed to find that

Deck would have committed a lewd act on the night of the

meeting. But as explained in the next section, the trial court

never clarified this point of California law.

2. The trial court never correctly instructed the

jury that, in order to convict, it had to find

Deck had moved beyond preparation and

intended to engage in a lewd act on the night of

the meeting.

“Arguments of counsel which misstate the law are subject

to objection and to correction by the court,” id., but here the

trial court did not correct the prosecutor’s misstatements; the

written instructions said nothing about the temporal

component of the State’s burden. Nor did the court answer

the question posed in the jury’s note, because the jury was

subsequently told to start deliberations over after a juror

became sick and had to be excused. Notably, even the trial
56 DECK V. JENKINS

court did not expect the jury to find the answer to its question

in the written set of jury instructions. The record shows the

judge anticipated the jury would ask the same question, and

the court was diligently reviewing the applicable California

case law and working with counsel to draft a response when

the jury reached a verdict. That the trial court did not issue a

correction before the verdict was returned weighs in favor of

finding a constitutional violation, because, as we have

recognized, improper prosecutorial statements cannot be

neutralized by instructions that do not in any way address

“the specific statements of the prosecutor.” United States v.

Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005) (quoting

United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992)).

The CCA emphasized that “the trial court properly

instructed the jury on the relevant principles” of the law of

attempt. Deck, 2011 WL 2001825, at *12. The written

instructions made it clear that the State needed to prove Deck:

(1) “took a direct but ineffective step toward committing” the

crime; and (2) “intended to commit” the crime. The

instructions explained that a direct step “is a direct movement

towards the commission of the crime after preparations are

made” (emphasis added). The CCA held that this instruction

correctly stated the law, and we do not review this holding.6

 

6

 The instructions elaborated in full:

A direct step requires more than merely planning or

preparing to commit [the offense] or obtaining or

arranging for something needed to commit [the

offense]. A direct step is one that goes beyond

planning or preparation and shows that a person is

putting his plan into action. A direct step indicates a

definite and unambiguous intent to commit [the

offense]. It is a direct movement towards the
DECK V. JENKINS 57

See Bradshaw, 546 U.S. at 76.

But the CCA went on to conclude, based on the written

instructions alone, that “the jury knew it was not enough to

plan or prepare to commit a lewd act at a potential later

rendezvous.” Deck, 2011 WL 2001825, at *12. Reasonable

jurists could not disagree that this conclusion does not

comport with the record. The instructions entirely failed to

address the specific misstatements made by the prosecutor. 

Counsel made diametrically opposing statements to the jury

about whether the law required the State to show that Deck

intended to commit a lewd act on the night of the meeting,

and the instructions were silent on this point. The jury could

have concluded that the instructions were perfectly

compatible with the prosecutor’s repeated assertions that

Deck could be found guilty even if the meeting was merely

a step in a plan to commit a lewd act “the next day, the next

week, maybe [in] two weekends” because the prosecutor told

the jury that, under the State’s alternative theory, it was

sufficient if the jury found the purpose of the initial meeting

was to confirm Amy’s identity before arranging a future

sexual encounter.

The CCA’s conclusion that the jury correctly understood

the law of attempt is further undermined by the differing

interpretations of the law adhered to by the trial court and

counsel. The prosecutor believed the instructions permitted

his view of the law, but the CCA later held that the prosecutor

commission of the crime after preparations are made. 

It is an immediate step that puts the plan in motion so

that the plan would have been completed if some

circumstances outside the plan had not interrupted the

attempt.
58 DECK V. JENKINS

was wrong. Defense counsel insisted the law required more. 

Tellingly, the trial judge sided with the prosecutor and not the

defense. After going round and round on the issue with

counsel outside the presence of the jury, the judge stated:

[M]y analysis of it after reading [California]

cases is that the People are correct in their

analysis of the law. I do not think it has to be,

the ultimate step, intend to commit it that day. 

He had to have the specific intent to commit

the lewd act at or about the time he took the

direct step. That doesn’t mean he had to have

the intent to commit child abuse that day, on

that particular day. I think that is accurate. 

But it’s very, very difficult to phrase that in an

instruction format that it’s clean and that’s

understandable. I mean if the lawyers can’t

even agree, how do we expect jurors or

layperson to grasp it[?]

(emphases added). The italicized sentences in this statement

encapsulate a separate problem with the CCA’s analysis. The

CCA decided “the jury knew it was not enough to plan or

prepare to commit a lewd act at a potential later rendezvous,”

id., but it is difficult to imagine “the jury knew” something

from the jury instructions that even the trial judge who gave

the instructions did not know.

The trial judge and counsel plainly agreed that the jury’s

question was not addressed by the court’s written

instructions, and they expected the jury to come back with

another version of its initial question after it restarted

deliberations with the new juror. Working to craft an answer

to the question when the bailiff announced there was a
DECK V. JENKINS 59

verdict, the court seemed surprised that the jury could have

reached a verdict without having its earlier question

answered:

The Bailiff: There’s a verdict, your Honor.

The Court: There is a verdict?

The Bailiff: Yes.

The Court: Well, that solves that issue.

The dissent relies on the presumption that a jury

understands and follows the court’s instructions. We

recognize the existence of this well-established presumption,

but it is not dispositive here for a simple reason the dissent

fails to acknowledge: the jury instructions on attempt did not

address the temporal issue that was the gravamen of the

prosecutor’s misstatements. The instructions did say that to

be convicted of attempt, the defendant must put his “plan in

motion so that the plan would have been completed if some

circumstances outside the plan had not interrupted the

attempt.” But this provided no guidance as to whether, in

order to convict Deck, his plan would have to be completed

that night, or, as the prosecutor incorrectly told the jury, Deck

merely had to put in motion a plan to complete the act “the

next day, the next week, maybe two weekends [later].” The

trial judge’s interpretation of the instructions in a manner

inconsistent with the CCA’s determination of California law

vividly illustrates that, even if the jury read the instructions

carefully and made their best effort to follow them, they

could no more than guess at the correct rule of California law. 

To be clear, we do not believe the jury failed to follow the

trial court’s directions in the sense that it disregarded the
60 DECK V. JENKINS

court’s instructions. Rather, the record shows that the most

diligent of juries would have had no way of divining whether

the prosecutor’s interpretation of the law of attempt was

incorrect from the instructions given to them.7

3. The evidence concerning the temporal aspect

of Deck’s intent was not overwhelming.

In Darden, the Supreme Court reasoned that

overwhelming evidence “reduced the likelihood that the

jury’s decision was influenced by” the prosecutor’s improper

argument in that case. 477 U.S. at 196. The weight of the

evidence against Deck is an important consideration, but it

does not change the outcome on the facts presented here. 

Because fairminded jurists could not disagree that the

prosecutor’s misstatements went to the heart of Deck’s

defense, and the trial court never correctly instructed the jury

that—contrary to the prosecutor’s misstatements—in order to

convict it had to find beyond a reasonable doubt that Deck

had moved beyond preparation and intended to engage in a

lewd act with Amy on the night of the meeting, fairminded

jurists could reach no conclusion other than that the CCA’s

finding of no constitutional violation was unreasonable. See

Harrington, 562 U.S. at 102.

 

7

 Deck’s case is analogous to cases where the jury has been “instructed

on multiple theories of guilt, one of which is improper.” Hedgpeth v.

Pulido, 555 U.S. 57, 61 (2008). Here, the prosecutor and defense counsel

gave contradictory interpretations of the law of attempt, and the

instructions themselves did not resolve the contradiction. Under these

circumstances, we agree with what our dissenting colleague wrote in a

previous decision: “While we presume jurors follow the instructions they

are given, we cannot equally assume they can sort out legal

contradictions.” Doe v. Busby, 661 F.3d 1001, 1023 (9th Cir. 2011) (M.

Smith, authoring judge).
DECK V. JENKINS 61

The jury could have found Deck intended to engage in

lewd touching with Amy on the night of the meeting: he had

previously discussed performing sexual acts with her in

graphic detail, he knew that her mother was not at home, and

he had condoms in his car. As the CCA observed, “A rational

juror reasonably could conclude Deck’s comments [about

feeling sick, wanting to meet in public, and cautioning ‘no

kissing or nothing’ at the meeting] served merely as a ploy to

convince ‘Amy’ to meet him or as a prudent precaution Deck

took to verify ‘Amy’s’ age and identity.” Deck, 2011 WL

2001825, at *9. By bringing a piece of pie with him, Deck

could argue that his earlier message was not intended to

convey a sexual overtone. Deck’s background as a lieutenant

with the California Highway Patrol made it more likely that

he was playing it safe in his communications with Amy to

avoid exactly this type of sting. The prosecutor argued along

these lines in closing rebuttal that Deck “knew what the

defense was” to the charge and “tried to create his own

defense.”

The CCA also emphasized that only minimal physical

contact was required to support a conviction for committing

a lewd act. The intended touching need not have been overtly

sexualized to an outside observer. Id. at *10 (“[T]he jury

need only have found Deck intended to touch ‘Amy’ with the

intent to arouse himself or her.”). In an earlier chat

discussion, Deck conceded that although he wanted to meet

in public for their first date and not engage in sexual activity,

“I probably won’t be able to keep my hands off of you.” Id.

at *2.

On the other hand, the same evidence suggests the jury

could have based its verdict on the prosecutor’s alternative

theory that Deck intended to commit lewd acts with Amy not
62 DECK V. JENKINS

on the night of the meeting, but on some unspecified future

date. The jury may have believed Deck wanted to avoid

contact with Amy on the night he was arrested because he

was grooming Amy for future contacts and wanted to

exercise caution by having a more limited first meeting, in

public, to assess the situation and avoid a sting. The jury

might even have believed that Deck did not intend contact or

touching on that particular night because he was ill, as he

claimed. That Deck was carrying a camera and had condoms

in his car shows preparation, but these facts do not establish

when he planned to follow through. The prosecutor’s

assurance that the jury could convict “even if” it believed the

prosecution’s alternative theory of the case may have

influenced the jury to find “attempt” based on an anticipated

future rendezvous with Amy. The jury’s note suggests at

least some jurors were on the fence about this question. And

as explained, the trial court never instructed the jury with

respect to this issue.

Based on the foregoing, we hold that fairminded jurists

could reach only one conclusion: the prosecutor’s uncorrected

misstatements of the law rendered Deck’s trial fundamentally

unfair, in violation of his clearly established constitutional

rights.

II. The constitutional violation was prejudicial.

Our inquiry does not end with the conclusion that the

CCA’s finding of no constitutional error was unreasonable. 

As explained, even on direct review a constitutional trial error

will not warrant reversal if it was harmless beyond a

reasonable doubt. See Chapman, 386 U.S. at 24. In a

collateral proceeding, the test is more forgiving to the

prosecution. Habeas petitioners are not entitled to relief
DECK V. JENKINS 63

based on trial error unless the error resulted in “actual

prejudice.” Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015)

(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). 

“Under th[e] [Brecht] test, relief is proper only if the federal

court has ‘grave doubt about whether a trial error of federal

law had substantial and injurious effect or influence in

determining the jury’s verdict.’” Id. at 2197–98 (quoting

O’Neal v. McAninch, 513 U.S. 432, 436 (1995)); see also

O’Neal, 513 U.S. at 437 (defining “grave doubt” as being in

“virtual equipoise as to the harmlessness of the error”).

Because it is more stringent, the Brecht test “subsumes”

the AEDPA/Chapman standard for review of a state court

determination of the harmlessness of a constitutional

violation. Fry v. Pliler, 551 U.S. 112, 120 (2007). A federal

habeas court therefore need not formally apply both the

Brecht test and the AEDPA standard; it is sufficient to apply

Brecht alone. Id. A determination that the error resulted in

“actual prejudice,” Brecht, 507 U.S. at 637, necessarily

means that the state court’s harmlessness determination was

not merely incorrect, but objectively unreasonable, Davis,

135 S. Ct. at 2198–99. A separate AEDPA/Chapman

determination is not required.

As explained, under clearly established Supreme Court

law, the constitutional dimension of the prosecutor’s

misstatements turns entirely on the issue of prejudice: the

error rises to the level of Darden error only if there is a

reasonable probability that it rendered the trial fundamentally

unfair. Our analysis of prejudice therefore overlaps

completely with our analysis of the CCA’s constitutional

determination. We conclude no fairminded jurist could agree

with the CCA’s harmlessness determination, and that the
64 DECK V. JENKINS

prosecutor’s misstatements resulted in “actual prejudice.” 

See id. at 2203.

The CCA’s decision established that the prosecutor gave

incorrect direction to the jury about an element of California

law under which Deck was convicted. The record establishes

that the comments were not inadvertent or isolated, and it

cannot be questioned they went to the heart of Deck’s

defense. The lawyers’ diametrically opposed statements of

the law in closing arguments clearly confused the jury, as

evidenced by the jury’s request for clarification. The jury’s

note asked the trial court to “clarify [the] law as it relates to

whether defendant did not have to do anything that day[,]

only attempt to put it into play.”8 Even the State concedes on

appeal that “on some level, [the prosecutor’s] statements

resonated with the jury in that they provoked a question from

the jury.”

Rather than disputing that the prosecutor’s closing

rebuttal argument perplexed the jury, the State contends the

jury’s failure to resubmit its question to the trial court after

restarting its deliberations suggests “the jury was satisfied

with the original, correct instructions on the crime of attempt

when it rendered its verdict.” The judge orally directed the

jury:

I know that there was a previous question sent

out by the foreperson, Juror # 9. In light of

the fact I have just given you this instruction

 

8

 The jury’s request for clarification on the law of attempt also included

the following language, which was crossed out near the top of the blank

space: “In closing arguments, Prosecutor . . . [illegible] . . . we need it read

back.”
DECK V. JENKINS 65

that you have to start all over again, disregard

past deliberations, you need to follow that

instruction. If you have any further questions

that you want answered once you start

deliberating with the jury, send that out in the

question format and we will answer it for you.

Deck, 2011 WL 2001825, at *13. The CCA accepted that the

jury satisfied itself about what Deck needed to have intended

to do the night he met Amy by looking at the trial court’s

written instructions. Id. But when the jury resumed its

deliberations, it worked from the same written instructions

the original jury had, and they provided no guidance on the

pivotal question.

Without the benefit of a correct statement of the law, the

jury may have arrived at the same erroneous legal conclusion

that the trial judge reached: that Deck could be convicted

even if the jury was not sure whether he intended to commit

a lewd act on the night he met Amy. After all, that is

precisely what the prosecutor told the jury in rebuttal. Under

these circumstances, a fairminded jurist could not conclude

that the jury found beyond a reasonable doubt that Deck

moved beyond preparation to commit a lewd act with Amy on

the night of the meeting. Further, we are left with “grave

doubt” as to the harmlessness of the constitutional trial error

that occurred in Deck’s case. See O’Neal, 513 U.S. at

437–38.

CONCLUSION

The prosecutor’s misstatements regarding an element of

the crime amounted to constitutional trial error under clearly

established federal law as determined by the Supreme Court. 
66 DECK V. JENKINS

See Darden, 477 U.S. at 181. The misstatements lowered the

prosecution’s burden of proof, and therefore resulted in

“actual prejudice.” See Davis, 135 S. Ct. at 2197. In view of

these conclusions, we REVERSE the judgment of the district

court and REMAND with instructions to grant the petition

unless the State agrees to grant Deck a new trial within a

reasonable period of time. See Stark v. Hickman, 455 F.3d

1070, 1080 (9th Cir. 2006).

REVERSE AND REMAND.

M. SMITH, Circuit Judge, dissenting:

I respectfully dissent.

The Supreme Court has repeatedly—and often

unanimously—reversed our circuit’s decisions granting

§ 2254 relief. For example, in its four most recent terms, the

Supreme Court has reversed us fourteen times in cases

involving our application of AEDPA, 28 U.S.C. § 2254, ten

of which reversals have been unanimous. Most recently, the

Supreme Court reversed us in Davis v. Ayala, 135 S. Ct. 2187

(2015), reminding us of the difficult hurdle that petitioners

must surmount in order for a federal court to reverse a state

court’s determination that a trial error was harmless under

Brecht v. Abrahamson, 507 U.S. 619 (1993). In my view, this

case is yet another candidate for reversal because the majority

flouts clear Supreme Court AEDPA precedent in order to

justify its holding that a state court’s decision is incorrect. In

so doing, the majority commits the same error the Supreme

Court has criticized our court for making time after time by

“collapsing the distinction between ‘an unreasonable
DECK V. JENKINS 67

application of federal law’ and what [the majority] believes

to be ‘an incorrect or erroneous application of federal law.’”

Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam)

(quoting Williams v. Taylor, 529 U.S. 362, 412 (2000))

(unanimously reversing our grant of habeas relief).1

 

1

See also Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (per

curiam) (unanimously reversing our grant of habeas relief and criticizing

our court for “[our] mistaken belief that circuit precedent may be used to

refine or sharpen a general principle of Supreme Court jurisprudence into

a specific legal rule that [the Supreme] Court has not announced”);

Cavazos v. Smith, 132 S. Ct. 2, 6–8 (2011) (per curiam) (reversing our

grant of habeas relief and stating: “This Court vacated and remanded this

judgment twice before, calling the panel’s attention to this Court’s

opinions highlighting the necessity of deference to state courts in

§ 2254(d) habeas cases. Each time the panel persisted in its course,

reinstating its judgment without seriously confronting the significance of

the cases called to its attention . . . . Its refusal to do so necessitates this

Court’s action today.”); Swarthout v. Cooke, 562 U.S. 216, 222 (2011)

(per curiam) (unanimously reversing our grant of habeas relief and stating:

“The short of the matter is that the responsibility for assuring that the

constitutionally adequate procedures governing California’s parole system

are properly applied rests with California courts, and is no part of the

Ninth Circuit’s business.”); Harrington v. Richter, 562 U.S. 86, 102

(2011) (unanimously reversing our grant of habeas relief and criticizing

us for “treat[ing] the unreasonableness question as a test of [our]

confidence in the result [we] would reach under de novo review”); Premo

v. Moore, 562 U.S. 115, 127 (2011) (unanimously reversing our grant of

habeas relief and criticizing us for “transpos[ing]” Supreme Court

precedent “into a novel context”); Knowles v. Mirzayance, 556 U.S. 111,

121–23 (2009) (unanimously reversing our grant of habeas relief and

reminding us that “it is not an unreasonable application of clearly

established Federal law for a state court to decline to apply a specific legal

rule that has not been squarely established by [the Supreme] Court”

(internal quotation marks omitted)); Brown v. Payton, 544 U.S. 133, 147

(2005) (reversing our grant of habeas relief and commenting that we had

“no basis for . . . concluding that the [state court’s] application of [the

Supreme Court’s] precedents was objectively unreasonable” (internal

quotation marks omitted)).
68 DECK V. JENKINS

I. Background

As the majority explains, Deck engaged in online

conversations with a fictitious thirteen-year-old named Amy.

The trial record shows that Deck and Amy exchanged

sexually suggestive messages and that they planned to meet

in person to “date” and to engage in sexual acts. Deck

indicated that he would not feel safe meeting for the first time

at Amy’s home, so they arranged to meet initially at a nearby

park.

The day of their planned meeting, Deck told Amy that he

was sick, and said: “so no kissing or nothing. [I’m] [j]ust

bringing you . . . pie.” During their prior online

conversations, Deck had repeatedly used the term “pie” as a

euphemism for performing oral sex on Amy. Moreover,

although Deck stated that he and Amy would not engage in

sexual conduct at their first meeting, he also told Amy “I

probably won’t be able to keep my hands off of you.”

On February 18, 2006, Deck drove forty-five minutes to

meet Amy at the park near her home. Deck arrived around

8:35 p.m., and when he identified himself to a teenage girl,

the police arrested him. A subsequent search of Deck’s car

revealed, among other things, MapQuest directions to Amy’s

apartment, six packaged condoms, and a digital camera. Deck

was charged with one count of an attempted lewd act on a

child under the age of fourteen and tried before a jury.

During his closing argument, the prosecutor argued that

Deck was guilty of an attempted lewd act on a child because:

(1) if Amy had been a real thirteen-year-old, Deck would

have touched her on February 18, 2006, and (2) in light of

Deck’s express intent to engage in sexual conduct with Amy,
DECK V. JENKINS 69

“any touching” would have constituted a lewd act under

California law.

Throughout his closing argument, the prosecutor

discussed his understanding of attempt under California law.

The prosecutor’s explanation was not a model of clarity, nor

was it entirely accurate. The prosecutor first stated,

I need to prove to you that [Deck] took a

direct, but ineffectual step . . . . First of all, his

intent was to commit a lewd act. Definitely

going down there to engage in a lewd act,

lewd contact with Amy. But for that sting

operation and Amy being fictitious . . . he

would have [engaged in a lewd act].

The prosecutor also stated: “But even if [Deck’s] intent was

to just meet her, get to know her, break the ice and follow up

the next day, the next week, maybe two weekends when

mom’s gone, again, as long as he took a direct, but ineffectual

step towards that goal, that is all I need.”

Defense counsel did not object to the prosecutor’s closing

argument, but instead offered his own explanation of attempt

during his closing remarks. Before the jury started its

deliberations, the presiding judge correctly instructed the jury

concerning the law of attempt, as follows:

A direct step requires more than merely

planning or preparing to commit [the offense]

or obtaining or arranging for something

needed to commit [the offense]. A direct step

is one that goes beyond planning and

preparation and shows that a person is putting
70 DECK V. JENKINS

his plan into action. A direct step indicates a

definite and unambiguous intent to commit

[the offense]. It is a direct movement towards

the commission of the crime after

preparations are made. It is an immediate step

that puts the plan in motion so that the plan

would have been completed if some

circumstances outside the plan had not

interrupted the attempt.

(emphasis added).

On direct appeal, Deck argued, among other things, that

his conviction should be reversed because the prosecutor

misstated the law of attempt in his closing argument. The

California Court of Appeal for the Fourth District (Court of

Appeal) agreed that the prosecutor was incorrect when he

stated: “[E]ven if [Deck’s] intent was to just meet [Amy], get

to know her, break the ice and follow up the next day, the

next week, maybe two weekends when mom’s gone, again,

as long as he took a direct, but ineffectual step towards that

goal, that is all I need.” The Court of Appeal further

explained that to be guilty of attempt under California law,

“the acts of the defendant must go so far that they would

result in the accomplishment of the crime unless frustrated by

extraneous circumstances.”

While the Court of Appeal held that the prosecutor

misstated the law of attempt, the Court nevertheless affirmed

Deck’s conviction. In so doing, the Court of Appeal held that

the prosecutor’s legal error did not require reversal because

the judge correctly instructed the jury. The Court explained:

“[W]e presume the jury followed [the trial judge’s]

instructions . . . . [Thus], the jury knew it was not enough to
DECK V. JENKINS 71

plan or prepare to commit a lewd act at a potential later

rendezvous[, and that] the attempt must consist of ‘an

immediate step that puts the plan in motion so that the plan

would have been completed if some circumstances outside

the plan had not interrupted the attempt.’” According to the

majority, the Court of Appeal’s holding is an unreasonable

application of clearly established federal law. I respectfully

disagree.

II. Clearly Established Law

The majority contends that Deck is entitled to habeas

relief, because (1) the prosecutor inadvertently misstated

California law in his closing argument, and (2) the majority

has “grave doubt” as to whether this misstatement affected

the outcome of Deck’s trial. But whether the majority has

“grave doubt” about whether a trial error was harmless is only

relevant if that error amounts to a constitutional violation. See

O’Neal v. McAninch, 513 U.S. 432, 435–36 (1995). When a

state court has previously determined that no such

constitutional error occurred, a federal court “ha[s] no

authority” to disrupt the state court’s holding unless the state

court’s holding is “‘contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States.’” Parker v.

Mathews, 132 S. Ct. 2148, 2151 (2012) (per curiam) (quoting

28 U.S.C. § 2254(d)).

The Supreme Court has also emphasized that “an

unreasonable application of federal law is different from an

incorrect application of federal law.” See, e.g., Harrington,

562 U.S. at 101 (quoting Williams, 529 U.S. at 410). “The

critical point is that relief is available under § 2254(d)(1)’s

unreasonable-application clause if, and only if, it is so
72 DECK V. JENKINS

obvious that a clearly established rule applies to a given set

of facts that there could be no ‘fairminded disagreement’ on

the question.” White v. Woodall, 134 S. Ct. 1697, 1706–07

(2014) (quoting Harrington, 562 U.S. at 102).

Importantly, even if a federal court would grant relief to

a § 2254 petitioner under a de novo review, a state court’s

denial of relief is not necessarily unreasonable. Harrington,

562 U.S. at 101–02. This is so, because “[u]nder § 2254(d),

a habeas court must [first] determine what arguments or

theories supported or . . . could have supported, the state

court’s decision,” and then “‘[t]he only question that matters’

. . . [is] whether it is possible [that] fairminded jurists could

disagree that those arguments or theories are inconsistent

with the holding in a prior decision of [the Supreme] Court.”

Id. at 102 (quoting Lockyer v. Andrade, 538 U.S. 63, 71

(2003)) (emphasis added).

The majority’s opinion rests on its conclusion that a

defendant’s right to due process of law is violated when the

prosecutor misstates the law in his closing argument, even

when the judge correctly instructs the jury on the relevant

legal principles. While the majority may believe that federal

law should protect a criminal defendant from prosecutorial

errors of this nature, the Supreme Court has never announced

such a rule.

The majority correctly observes that the Supreme Court

has stated that prosecutorial misconduct may deny a criminal

defendant due process of law. But the only Supreme Court

decisions the majority cites for this proposition are Parker,

132 S. Ct. at 2154–55 (holding that § 2254 relief was not

proper because the alleged prosecutorial error was not a

clearly established constitutional violation), Darden v.
DECK V. JENKINS 73

Wainwright, 477 U.S. 168, 179–83 (1986) (same), and

Caldwell v. Mississippi, 472 U.S. 320, 339–40 (1985)

(holding that the Eighth Amendment is violated when the

prosecutor and the court erroneously instruct the jury that the

responsibility for determining whether a death sentence is

appropriate lies with the court of appeals and not with the

jury).

While Parker, Darden, and Caldwell all state that

prosecutorial misconduct could render a trial so unfair as to

deny a defendant due process of law, in none of these cases

did the Supreme Court actually hold that a prosecutor’s error

denied a criminal defendant due process, nor did the Court

establish what type of misconduct would cause a trial error of

constitutional magnitude.

Critically, the Supreme Court has never held, nor even

suggested, that a defendant’s constitutional rights are

violated where a prosecutor misstates the law in closing

argument, but the trial judge correctly instructs the jury. In

fact, the Supreme Court has indicated just the opposite.

The Supreme Court has long held that “[a] jury is

presumed to follow” a judge’s instructions. Weeks v.

Angelone, 528 U.S. 225, 234 (2000). This is true even when

a party provides contrary instructions. For example, in Brown

v. Payton, 544 U.S. 133 (2005), the prosecutor repeatedly and

incorrectly argued to the jury that it could not consider certain

mitigating evidence in the penalty phase of the defendant’s

trial for capital murder. The court failed to provide a

corrective instruction, but correctly instructed the jury on the

applicable law before deliberations began. Id. at 146–47. In

so doing, the trial court did not instruct the jury that the

prosecutor’s statements were incorrect. Id. It merely provided
74 DECK V. JENKINS

a correct explanation of the law, which was inconsistent with

the prosecutor’s erroneous statements. Id.

The Brown Court (reversing our court, sitting en banc)

held that the petitioner was not entitled to relief under § 2254.

Although the Supreme Court acknowledged that the trial

court “should have [explicitly] advised the jury that it could

consider [the mitigating] evidence,” it was not unreasonable

for the state court to conclude that the jury relied on the

judge’s correct instructions, rather than on the prosecutor’s

misstatements. Id. at 146–47. As in Brown, the state trial

court here did not explicitly instruct the jury that the

prosecutor was incorrect when he stated that the jury could

convict Deck even if it concluded that Deck did not intend to

touch Amy for several days or weeks after their initial

meeting. Nonetheless, the court offered an instruction that

directly contradicted the prosecutor’s erroneous explanation,

when it explained that a defendant is only guilty of attempt if

he “[makes a] direct movement towards the commission of

the crime after preparations are made[, by] putt[ing his] plan

in motion so that the plan would have been completed if some

circumstances outside the plan had not interrupted the

attempt.”

Despite Brown, the majority concludes that the Supreme

Court’s broad statements that a prosecutor’s comments can

render a trial constitutionally infirm grant this court authority

to set aside the Court of Appeal’s holding that no such error

occurred in this case. This conclusion flouts AEDPA’s

deferential standard.

The majority is correct that under § 2254 even a general

rule can be applied in an unreasonable manner. This is so,

because “[c]ertain principles are fundamental enough that
DECK V. JENKINS 75

when new factual permutations arise, the necessity to apply

the earlier rule will be beyond doubt.” White, 134 S. Ct. at

1706 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666

(2004)). But, even where a general rule is at issue, “relief is

available under § 2254(d)[] . . . if, and only if, it is so obvious

that [the] clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement’ on the

question.” White, 134 S. Ct. at 1706–07 (quoting Harrington,

562 U.S. at 102). “‘[I]f a habeas court must extend a rationale

before it can apply to the facts at hand,’ then by definition the

rationale was not ‘clearly established at the time of the state

court decision.’” White, 134 S. Ct. at 1706 (quoting

Yarborough, 541 U.S. at 666).

Under the Supreme Court’s case law, it will rarely be “so

obvious” that a prosecutorial error violated a defendant’s due

process rights that there could be no “‘fairminded

disagreement’ on the question.” White, 134 S. Ct. at 1706–07

(quoting Harrington, 562 U.S. at 102). In Parker, the

Supreme Court specifically addressed this issue and warned

that because the standard for determining whether

prosecutorial error amounts to a constitutional error “is a very

general one . . . [we must give state] courts more leeway . . .

in reaching outcomes in case-by-case determinations

[concerning prosecutorial conduct].” 132 S. Ct. at 2155

(internal quotation marks omitted); see also Harrington,

562 U.S. at 101 (“The more general the rule, the more leeway

courts have in reaching outcomes in case-by-case

determinations.”).

Here, there is simply no Supreme Court precedent

establishing “beyond fairminded disagreement” that Deck’s

due process rights were violated. The Supreme Court has

generally acknowledged that prosecutorial misconduct may,
76 DECK V. JENKINS

under some circumstances, amount to a due process violation.

But the Court has never suggested that a prosecutor’s

inadvertent misstatement of state law creates such a

circumstance, particularly where the judge later provides the

jury with a correct explanation of the law. For this reason, the

Court of Appeal’s holding that the prosecutor’s erroneous

statements of law did not violate Deck’s constitutional rights

is not “an unreasonable application of . . . clearly established

law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d).

III. Prejudice

Not only does the majority grant habeas relief based on a

new constitutional rule that it announces today, but it

compounds its error by rejecting the Court of Appeal’s

reasonable conclusion that any prosecutorial error was not

prejudicial. This holding relies on an interpretation of the

facts that is tenuous at best.

It is well-settled law that “[a] jury is presumed to follow

. . . [and] is [also] presumed to understand” a judge’s

instructions. Weeks, 528 U.S. at 234. Here, it is undisputed

that the presiding judge correctly instructed the jury that a

defendant is only guilty of attempt if he “[makes a] direct

movement towards the commission of the crime after

preparations are made[, by] putt[ing his] plan in motion so

that the plan would have been completed if some

circumstances outside the plan had not interrupted the

attempt.” In order to overcome the presumption that the jury

understood and followed this instruction, and to show that the

prosecutor’s statements were prejudicial, the majority adopts

a strained interpretation of the record. With respect, the
DECK V. JENKINS 77

majority’s interpretation is neither persuasive nor consistent

with the scope of AEDPA review.

The majority notes that during its deliberations, the jury

asked the court to “clarify [the] law as it relates to whether

defendant did not have to do anything that day only attempt

to put it in play.” After the jury submitted this question, the

jury adjourned for the day. When the jury reconvened, an

alternate juror was substituted for a sick juror. The judge

properly instructed the jury to begin its deliberations anew,

and to submit any outstanding questions to the court. The new

jury did not resubmit the original jury’s question, and it was

never answered.

According to the majority, the jury’s unanswered question

proves that (1) despite the judge’s correct instruction, the jury

believed the prosecutor’s conflicting statement that it could

convict Deck even if it found that Deck did not intend to

touch Amy for several days or weeks after their initial

meeting, and (2) the jury convicted Deck on these grounds. In

my view, the majority’s reading is unfounded and does

nothing to overcome the presumption that a jury understands

and follows a judge’s instructions. Id.

Inchoate offenses are undoubtedly confusing to a lay jury.

Recognizing this potential for confusion, the fairest

interpretation of the jury’s question is a simple request for

confirmation that a defendant may be guilty under the law of

attempt even if he does not complete a substantive

offensive—“only attempt[s] to put it in play.” Contrary to the

majority’s reading, nothing about the jury’s note indicates

that the jury believed that Deck could be guilty of attempt

even if he did not intend to touch Amy for several days or

weeks following their initial meeting. Rather, the note focuses
78 DECK V. JENKINS

on what actions one must take (i.e., what he must “do”) to be

guilty of attempt.

The majority points to no other record evidence indicating

that the jury relied on the prosecutor’s erroneous statements,

rather than on the judge’s correct explanation of the law.

Thus, I find no reason to believe that these statements were

prejudicial. Moreover, the record certainly does not show that

in reaching this same conclusion, the Court of Appeal acted

unreasonably or even erroneously. As the Supreme Court’s

recent decision in Davis reminds us, and as the majority

acknowledges, “a federal court may not award habeas relief

under § 2254 unless the harmlessness determination itself

was unreasonable.” 135 S. Ct. at 2199 (2015) (quoting Fry

v. Pliler, 551 U.S. 112, 119 (2007) (emphasis in original)). 

Deck “must show that the state court’s decision to reject his

claim ‘was so lacking in justification that there was an error

well understood and comprehended in existing law beyond

any possibility for fair-minded disagreement.’” Id. (quoting

Harrington, 562 U.S. at 103). The majority’s conclusion that

“the [prosecutor’s] rebuttal argument may have seriously

misled the jury” does not support a determination that the

state court’s decision to reject Deck’s claim was so lacking in

justification that no fair-minded jurist could have adopted the

state court’s assessment that it did not.

IV. Conclusion

Relief under § 2254(d) is appropriate only where the state

court’s holding is “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d). The Supreme Court has specifically warned our

court that, “[b]y framing [Supreme Court] precedents at [too]
DECK V. JENKINS 79

high [a] level of generality, [we] could transform even the

most imaginative extension of existing case law into ‘clearly

established Federal law, as determined by the Supreme Court’

. . .[, which] would defeat the substantial deference that

AEDPA requires [to state courts].” Jackson, 133 S. Ct. at

1994. The majority flouts the Supreme Court’s clear

directive, and in the absence of clearly applicable Supreme

Court precedent, concludes that Deck is entitled to § 2254

relief, merely because the majority believes that the Court of

Appeal’s decision is incorrect.2 For these reasons, I

 

2

 With regard to our treatment of petitions under § 2254, Justice Scalia

recently observed:

It is a regrettable reality that some federal judges like to

second-guess state courts. The only way this Court can

ensure observance of Congress’s abridgement of their

habeas power is to perform the unaccustomed task of

reviewing utterly fact-bound decisions that present no

disputed issues of law. We have often not shrunk from

that task, which we have found particularly needful

with regard to decisions of the Ninth Circuit. See, e.g.,

Cavazos v. Smith, 565 U.S. 1, 132 S. Ct. 2, — L.Ed.2d

— (2011) (per curiam) (reinstating California

conviction for assault on a child resulting in death);

Felkner v. Jackson, 562 U.S. —, 131 S. Ct. 1305, 179

L.Ed.2d 374 (2011) (per curiam) (reinstating California

conviction for sexual attack on a 72–year–old woman);

Premo v. Moore, 562 U.S. —, 131 S. Ct. 733, 178

L.Ed.2d 649 (2011) (reinstating Oregon conviction for

murder of a kidnapped victim); Knowles v. Mirzayance,

556 U.S. 111, 129 S. Ct. 1411, 173 L.Ed.2d 251 (2009)

(reinstating California first-degree murder conviction);

Rice v. Collins, 546 U.S. 333, 126 S. Ct. 969, 163

L.Ed.2d 824 (2006) (reinstating California conviction

for cocaine possession); Kane v. Garcia Espitia,

546 U.S. 9, 126 S. Ct. 407, 163 L.Ed.2d 10 (2005) (per

curiam) (reinstating California conviction for
80 DECK V. JENKINS

respectfully dissent.

carjacking and other offenses); Yarborough v. Gentry,

540 U.S. 1, 124 S. Ct. 1, 157 L.Ed.2d 1 (2003) (per

curiam) (reinstating California conviction for assault

with a deadly weapon); Woodford v. Visciotti, 537 U.S.

19, 123 S. Ct. 357, 154 L.Ed.2d 279 (2002) (per

curiam) (reinstating capital sentence for California

prisoner convicted of first-degree murder, attempted

murder, and armed robbery).

Cash v. Maxwell, 132 S. Ct. 611, 616–17 (2012) (Scalia, J., dissenting

from the denial of certiorari).