Stephen Deck v. Mack Jenkins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEPHEN ROBERT DECK, No. 13-55130
Petitioner-Appellant,
D.C. No.
v. 8:11-cv-01767-
MWF-FFM
MACK JENKINS, Chief Probation
Officer,
Respondent-Appellee. 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

Before: Sidney R. Thomas, Milan D. Smith, Jr.,
and Morgan Christen, Circuit Judges.

Opinion by Judge Christen;
Dissent by Judge M. Smith
2 DECK V. JENKINS

SUMMARY*

Habeas Corpus

The panel reversed the district court’s dismissal of a 28
U.S.C. § 2254 habeas corpus petition challenging a
conviction of an attempted lewd act upon a child under the
age of 14, and remanded for further proceedings.

The panel took as established that prosecutorial error
occurred, where the California Court of Appeal decided that
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 to ‘just
some point in the future.’” The California Court of Appeal
concluded that the misstatements were not prejudicial.

The panel found itself in virtual equipoise as to the
harmlessness of the error, where the comments were not
inadvertent or isolated and went to the heart of the defense,
the lawyers’ diametrically opposed statements of the law in
closing arguments confused the jury, a corrective instruction
was not given, the jury’s request for clarification was not
answered, and the written jury instructions did not address the
subject of the jury’s confusion; and where the panel could not
say that there was overwhelming evidence that the defendant
intended to commit a lewd act on the specific night in
question.

*
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

The panel concluded that the prosecutor’s misstatements
amounted to constitutional trial error under clearly
established federal law as determined by the Supreme Court,
and had grave doubt as to whether the error had a substantial
and injurious effect or influence on the jury’s verdict.

Dissenting, Judge M. Smith wrote that the majority flouts
clear Supreme Court AEDPA precedent in order to justify its
holding that a state court’s decision is incorrect.

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.

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.
4 DECK V. JENKINS

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).

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

1
We use “Amy” to refer to the Perverted Justice volunteer who played
this role.
 DECK V. JENKINS 5

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. (internal quotation marks omitted). “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. He said he
would be bringing her a piece of pie. 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
6 DECK V. JENKINS

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.

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
 DECK V. JENKINS 7

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 and internal
quotation marks omitted). Deck was convicted after a jury
trial and sentenced to 365 days in county jail and five years
formal probation.

One of Deck’s arguments to the CCA was that the
prosecutor’s 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
8 DECK V. JENKINS

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
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 and some internal
quotation marks 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,
 DECK V. JENKINS 9

“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”;
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:

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,
10 DECK V. JENKINS

“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
frustrated by extraneous circumstances or
absent an intervening force.

Id. at *12 (alterations in original) (citations and some internal
quotation marks 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
 DECK V. JENKINS 11

“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:

[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
12 DECK V. JENKINS

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
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 (some internal quotation marks omitted).

Finally, the CCA reasoned that the jury’s failure to
resubmit its question (or a similar one) after restarting
deliberations demonstrated that 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
 DECK V. JENKINS 13

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 two additional points are helpful.
First, Deck’s trial defense was that he 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.”

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 review a district court’s denial of a § 2254 habeas
corpus petition de novo. Gonzalez v. Duncan, 551 F.3d 875,
14 DECK V. JENKINS

879 (9th Cir. 2008). Looking through the district court’s
decision, this court reviews 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).

AEDPA allows for habeas relief only if the state court’s
decision “was 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)(1). An error that occurs during the presentation of
a case to the jury, including prosecutorial misconduct, is a
trial error. See Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir.
2012); Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997).
Whether 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 will not warrant habeas relief
unless the violation “had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted). Because it is more stringent, the Brecht
standard “obviously subsumes” the AEDPA standard for
review of a state court determination of the harmlessness of
a constitutional violation. Fry v. Pliler, 551 U.S. 112, 120
(2007). The Court in Fry held that because it “makes no
sense to require formal application of both tests,” Brecht
alone should be applied. Id.

Here, the state appellate court 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.
 DECK V. JENKINS 15

In other words, the CCA established that a trial error occurred
through the prosecutor’s misstatement of California law. 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.”).

Our first task is to determine whether the established trial
error amounts to a constitutional violation under clearly
established federal law as determined by the Supreme Court.
Because the state court has already established that a trial
error occurred and the constitutional dimension of the error
turns entirely on the issue of prejudice, we apply Brecht
“without regard for the state court’s harmlessness
determination.” See Pulido v. Chrones, 629 F.3d 1007, 1012
(9th Cir. 2010); see also Stouffer v. Trammell, 738 F.3d 1205,
1227–28 (10th Cir. 2013) (reviewing state court holding that
trial error occurred but was not prejudicial under the Brecht
standard). The relevant inquiry under Brecht is whether the
error substantially and injuriously influenced the jury’s
decision. See O’Neal v. McAninch, 513 U.S. 432, 436 (1995).
“While there is no burden of proof per se, ‘we look to the
State to instill in us a ‘fair assurance’ that there was no effect
on the verdict.’” Shaw v. Terhune, 380 F.3d 473, 478 (9th
Cir. 2004) (alteration and citation omitted). If the record is so
evenly balanced that a “conscientious judge is in grave doubt
as to the harmlessness of an error,” the petitioner must
prevail. O’Neal, 513 U.S. at 437; see also id. at 435 (defining
“grave doubt” as being in “virtual equipoise as to the
harmlessness of the error”).
16 DECK V. JENKINS

DISCUSSION

I. Clearly Established Federal Law on Prosecutorial
Misstatements

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) (internal quotation marks omitted).2 “[A]
prosecutor’s improper comments will be held to violate the
Constitution only if they ‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’”
Id. (quoting Darden, 477 U.S. at 181); see also Caldwell v.
Mississippi, 472 U.S. 320, 340 (1985). The “clearly
established Federal law” from Darden is that prosecutorial
misconduct amounts to a 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
(internal quotation marks omitted). The Court has

2
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’”).
 DECK V. JENKINS 17

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) (internal
quotation marks omitted). 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
that 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.
18 DECK V. JENKINS

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
court’s instructions. Weeks v. Angelone, 528 U.S. 225, 234
(2000).

In the dissent’s view, the CCA decided that no federal
constitutional error occurred in this case, and the CCA’s
decision is entitled to AEDPA deference independent from
the deference already encompassed in the Brecht
 DECK V. JENKINS 19

harmlessness standard. Controlling authority requires that we
follow a different approach.

The heading of the relevant section of the CCA’s decision
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.”3 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,
122 P.3d 765, 771 (Cal. 2005); People v. Espinoza, 838 P.2d
204, 212 (Cal. 1992). We therefore conclude that although

3
As explained below, the prosecutor’s error was more than a single
“lone misstatement,” but this point is not relevant here.
20 DECK V. JENKINS

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.

The dissent implies that we should apply AEDPA
deference to decide whether the type of prosecutorial
misconduct in Deck’s case rose to the level of a federal due
process violation, in addition to the deference due to the
CCA’s evaluation of prejudice. The dissent’s concern is
misplaced: the CCA did not hold that the type of misconduct
here—misstatements of the law in closing argument—may
not rise to the level of a due process violation. Instead, the
CCA impliedly held that no due process violation occurred
because the error was harmless. Under both California and
federal law, prosecutorial misconduct renders a trial
“fundamentally unfair” (i.e., a violation of due process) only
when it was not harmless because there was a reasonable
probability of a different result absent the error. The dissent’s
approach is inconsistent with Supreme Court directives.
Beyond harmlessness, there is no additional state court
determination regarding the federal due process claim to
which we could defer here. AEDPA deference to the CCA’s
harmlessness determination is already subsumed within the
Brecht standard.4 See Fry, 551 U.S. at 120.

The dissent interprets our opinion as “rest[ing] on [the]
conclusion that a defendant’s right to due process of law is

4
For this reason, if we were to hold that the error in Deck’s trial was not
harmless under the Brecht standard, this would necessarily entail the
conclusion that the CCA’s ruling with regard to harmlessness was
unreasonable under the deferential AEDPA standard. See 28 U.S.C.
§ 2254(d)(1); Fry, 551 U.S. at 120.
 DECK V. JENKINS 21

violated when the prosecutor misstates the law in his closing
argument, even when the judge correctly instructs the jury on
the relevant legal principles.” But nowhere do we suggest
that every misstatement of the law in closing argument rises
to the level of a due process violation. This fact-intensive
determination must be made on a case-by-case basis. Where
the state court has determined that prosecutorial misconduct
occurred, and where the constitutional dimension of the error
completely overlaps with the harmlessness determination,
there is nothing left to do but apply the Brecht standard.

AEDPA review and the Brecht standard are both highly
deferential, but this does not mean that we are to superimpose
new layers of deference when applying a general rule like the
one from Darden. To do so would needlessly complicate our
doctrine and contravene controlling authority. Where, as
here, our review is limited to assessing a state court’s
conclusion regarding prejudice, Supreme Court and circuit
precedents require us to apply Brecht “without regard for the
state court’s harmlessness determination.” Pulido, 629 F.3d
at 1012; see also Fry, 551 U.S. at 119–20.

II. Application of Federal Law to Deck’s Case

A. 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
departure in a few stray words and not the focus of the
prosecutor’s argument.” Deck, 2011 WL 2001825, at *12;
see also 28 U.S.C. § 2254(e)(1). But it is clear the erroneous
assertions of law in the prosecutor’s closing rebuttal
22 DECK V. JENKINS

argument were not mere “stray words;” they were a direct
response to the central theory of Deck’s case.

The contention that Deck lacked the intent to commit a
lewd act on the night of the meeting was absolutely central to
his defense. In his 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.” The temporal
requirement for Deck’s intent 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.

There is no doubt the trial court recognized that the
defense and prosecution made directly conflicting statements
to the jury regarding the temporal component of intent as
relevant to attempt. In fact, the prosecutor’s own statements
about the purpose of his rebuttal closing argument contradict
the CCA’s suggestion that his misstatements were stray
words or inadvertent misstatements. In a discussion with trial
counsel after the jury sent its note requesting clarification on
the temporal requirement for attempt, the trial court
acknowledged that the lawyers gave irreconcilable statements
of the law to the jury, and the prosecutor claimed that his
 DECK V. JENKINS 23

rebuttal was 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 he 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 of what the law
required him to prove is precisely the one the CCA later
rejected. Recognizing that the temporal component of
attempt 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,” and 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
“like it or not” closing argument. The prosecutor told the jury
that although the evidence showed that Deck intended to
engage in lewd conduct that day, they could convict Deck
even if they agreed with the defense that the evidence raised
reasonable doubt about whether Deck had this intent:
24 DECK V. JENKINS

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 that
he was arguing, incorrectly, that the jury could still convict
Deck even if it found doubt about whether Deck intended to
engage in a lewd act on the night of the meeting.

The 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.
 DECK V. JENKINS 25

at 384. We need not engage in speculative Monday morning
quarterbacking to know that 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.” The significance of this
request is discussed further below.

B. The trial court did not correct the prosecutor’s
misstatements.

“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.
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 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 that 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) (internal
quotation marks omitted).
26 DECK V. JENKINS

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 that
Deck: (1) “took a direct but ineffective step toward
committing” the crime, and (2) “intended to commit” the
crime. The CCA held that this instruction correctly stated the
law, and we do not review this holding.5 See Bradshaw,
546 U.S. at 76.

But the CCA went on to conclude that, based on the
written instructions alone, “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. This
conclusion does not comport with the record. The
instructions entirely failed to address the specific
misstatements made by the prosecutor; they gave the jury no
direction at all regarding whether the law required the
prosecutor to show that Deck intended to commit a lewd act
on the night of the meeting. The jury could have concluded

5
The instructions elaborated:

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
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.
 DECK V. JENKINS 27

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 with Amy in the near future. The jury was
told that, under the State’s alternative theory, the purpose of
the initial meeting would have been 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 that the instructions
permitted his view of the law, but the CCA later held that the
prosecutor was incorrect. 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, 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[?]
28 DECK V. JENKINS

(emphases added). The italicized sentences in this statement
encapsulate a separate problem with the CCA’s analysis: it is
difficult to imagine that “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 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 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
 DECK V. JENKINS 29

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
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.6

C. 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

6
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). In such cases, the reviewing court applies
the Brecht analysis without presuming that the jury followed the correct
theory. See id. at 61–62. 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).
30 DECK V. JENKINS

evidence against Deck is an important consideration, but it
does not change the outcome on the facts presented here.

On one hand, the jury could have found that Deck
intended to engage in lewd touching with Amy on the day 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. “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. Furthermore, Deck’s background in law
enforcement—he was a lieutenant with the California
Highway Patrol at the time—makes 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 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 (internal quotation marks omitted).

On the other hand, the jury could have believed that the
prosecutor only proved his alternative theory that Deck
 DECK V. JENKINS 31

intended to commit lewd acts with Amy at a later meeting.
The jury could have believed Deck wanted to avoid contact
with Amy on the day 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. The jury might even have believed that
Deck did not intend contact or touching on that particular day
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 could have influenced the jury to find
“attempt” based on an anticipated future rendezvous with
Amy. If the jury had not been on the fence on this question,
it is unlikely it would have sent its note to the court.

D. There is “grave doubt” about the harmlessness of
the error.

The jury’s request for clarification, above all, leaves us
with “grave doubt” about whether the prosecutor’s comments
had a substantial and injurious effect or influence on the
verdict. 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.”7 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

7
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.”
32 DECK V. JENKINS

that the prosecutor’s closing rebuttal argument perplexed the
jury, the State contends that 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.” But the judge’s oral direction in response to the
jury’s note was also confusing. 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
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. The CCA accepted that the jury satisfied itself
about the temporal requirement for attempt by looking at the
trial court’s written instructions. Id. But as explained, the
written instructions provided no specific guidance on this
point. Worse, the jury may have understood the judge’s oral
direction to mean that the court was not going to provide an
answer to the jury’s earlier question, and that only if the jury
had any other (“further”) questions, could it submit them to
the court.

Without the benefit of a corrective instruction, 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 day he met Amy. After all, that is precisely what
 DECK V. JENKINS 33

the prosecutor told the jury in rebuttal. Unquestionably, this
scenario would constitute prejudice under the Brecht
standard.

Brecht requires that we determine whether the
prosecutor’s comments “had substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht,
507 U.S. at 637 (internal quotation marks omitted). If the
evidence is at least in “virtual equipoise” on this question,
such that we have grave doubt as to the harmlessness of the
constitutional trial error, the petition must be granted. See
O’Neal, 513 U.S. at 437–38. The state appellate court’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 confused the jury, but a corrective
instruction was not given. Nor was the jury’s request for
clarification answered, and the written jury instructions did
not address the subject of the jury’s confusion. Despite the
significant evidence presented by the State, we cannot say
there was overwhelming evidence that Deck intended to
commit a lewd act on the specific night in question.
Therefore, considering the entire record and viewing it in
context, we find ourselves at least in “virtual equipoise as to
the harmlessness of the error” of federal law. See O’Neal,
513 U.S. at 435.

CONCLUSION

The prosecutor’s misstatements regarding an element of
the crime amounted to constitutional trial error under clearly
34 DECK V. JENKINS

established federal law as determined by the Supreme Court.
See Darden, 477 U.S. at 181. We have grave doubt as to
whether the error had a substantial and injurious effect or
influence on the jury’s verdict. See O’Neal, 513 U.S. at
437–38. 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).

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 thirteen times in cases
involving our application of AEDPA, 28 U.S.C. § 2254, ten
of which reversals have been unanimous. 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
application of federal law’ and what [the majority] believes
to be ‘an incorrect or erroneous application of federal law.’”
Nevada v. Jackson, — U.S. —, 133 S. Ct. 1990, 1994 (2013)
 DECK V. JENKINS 35

(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, — U.S. —, 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, — U.S. —, 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, — U.S. —,
131 S. Ct. 859, 862–63 (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, — U.S. —, 131 S. Ct. 770, 786 (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, —
U.S. —, 131 S. Ct. 733, 743–46 (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)).
36 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 37

“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
38 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 39

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, — U.S. —, 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
v. Richter, — U.S. —, 131 S. Ct. 770, 785 (2011) (quoting
Williams, 529 U.S. at 410). “The critical point is that relief is
available under § 2254(d)(1)’s unreasonable-application
40 DECK V. JENKINS

clause if, and only if, it is so 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, — U.S. —, 134 S. Ct. 1697, 1706–07 (2014)
(quoting Harrington, 131 S. Ct. at 787).

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,
131 S. Ct. at 786. 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. (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 v.
Mathews, 132 S. Ct. at 2154–55 (holding that § 2254 relief
was not proper because the alleged prosecutorial error was
 DECK V. JENKINS 41

not a clearly established constitutional violation),2 Darden v.
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

2
I note that the majority improperly relies on Parker, as it was issued
after the Court of Appeal denied Deck’s appeal, and it could not therefore
have been clearly established federal law at the time of the Court of
Appeal’s decision.
42 DECK V. JENKINS

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
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
 DECK V. JENKINS 43

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
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,
131 S. Ct. at 787). “‘[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, 131 S. Ct. at 787). 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].” Parker, 132 S. Ct. at
2155 (internal quotation marks omitted); see also Harrington,
131 S. Ct. at 786 (“The more general the rule, the more
44 DECK V. JENKINS

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,
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
 DECK V. JENKINS 45

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
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
46 DECK V. JENKINS

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
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.

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]
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
 DECK V. JENKINS 47

Appeal’s decision is incorrect.3 For these reasons, I
respectfully dissent.

3
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
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, — U.S. —, 132 S. Ct. 611, 616–17 (2012) (Scalia, J.,
dissenting from the denial of certiorari).