Ford v. Peery, No. 18-15498 (9th Cir. 2021)
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The Ninth Circuit filed (1) an order granting respondent's petition for panel rehearing and denying as moot her petition for rehearing en banc, (2) a superseding opinion affirming the district court's denial of petitioner's habeas corpus petition challenging his California conviction for first-degree murder, and (3) a partial dissent/concurrence.
The panel concluded that the prosecutor's repeated statements to the jury during final argument that the presumption of innocence no longer applied were misstatements of clearly established law as articulated by the Supreme Court. However, the panel deferred to the state court's finding, applying the Darden standard, that there was not a reasonable probability of a different outcome had the prosecutor not misstated the law. The panel also concluded that the state court did not err under Dunn v. United States, 442 U.S. 100 (1979), in upholding the jury's arguably inconsistent verdict. Accordingly, the panel affirmed the district court's denial of relief.
Court Description: Habeas Corpus. The panel filed (1) an order granting Warden Suzanne Peery’s petition for panel rehearing and denying as moot Peery’s petition for rehearing en banc, (2) a superseding opinion affirming the district court’s denial of Keith Undray Ford’s habeas corpus petition challenging his California conviction for first-degree murder, and (3) a partial dissent/concurrence. In the superseding opinion, the panel granted Ford’s motion to expand the Certificate of Appealability as to his claim that the prosecutor’s statements during closing argument that the “presumption of innocence is over” and Ford “was not presumed innocent anymore” violated due process under Darden v. Wainwright, 477 U.S. 168 (1986). Because the California Court of Appeal assumed without deciding that the prosecutor misstated the law, there was no state-court decision to which the panel could defer on this point. The panel wrote that even if there were a state-court decision holding that prosecutor did not misstate the law, the panel would conclude that such a holding would have been unreasonable because the prosecutor misstated clear and long-standing federal law as articulated in a number of Supreme Court decisions. As to prejudice, the panel observed that the Court of Appeal applied the functional equivalent of the Darden FORD V. PEERY 3 harmlessness test in holding that the prosecutor’s statement was harmless. The panel was required to give deference to that decision because a determination of prejudice constitutes an “adjudication on the merits” for AEDPA purposes. Even with AEDPA deference, the panel viewed this as a close case. The panel held, however, that because there was substantial evidence of guilt, a reasonable jurist could have concluded that there was no reasonable probability that, in the absence of the prosecutor’s statements that the presumption of innocence was “over,” the jury would have reached a different conclusion. In a claim certified for appeal by the district court, Ford asserted that the jury found him guilty under an aiding-and- abetting theory that was neither charged nor argued to the jury, in violation of due process under Dunn v. United States, 442 U.S. 100 (1979). The panel wrote that the apparent inconsistency between the jury’s guilty verdict on the murder charge and its inability to decide on three firearm enhancements is not a reason to set aside the guilty verdict. The panel concluded that the Court of Appeal did not err, much less unreasonably apply clearly established federal law, by denying Ford’s claim under Dunn. Judge R. Nelson dissented in part and concurred in the judgment. He would deny the Certificate of Appealability because Ford has not made a substantial showing that the prosecutor’s statements, when viewed in context, caused the denial of a constitutional right. He wrote that the majority identifies no Supreme Court precedent clearly establishing that the prosecutor’s statements in context were a constitutional violation. 4 FORD V. PEERY
This opinion or order relates to an opinion or order originally issued on September 28, 2020.
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