                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS
                                                                           FILED
                              FOR THE NINTH CIRCUIT
                                                                           AUG 12 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JACK NORMAN RUKES,                               No. 14-35492

            Defendant - Appellee,                D.C. No. 9:13-cv-116-M-JCL

  v.
                                                 MEMORANDUM *
MARTIN FRINK; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,

            Plaintiff - Appellant.


                      Appeal from the United States District Court
                              for the District of Montana
                    Jeremiah C. Lynch, Magistrate Judge, Presiding

                          Argued and Submitted July 6, 2015
                                  Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

       Montana appeals the district court’s May 23 and September 29, 2014 orders

granting Rukes’s petition for habeas relief. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253. We reverse and remand.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Montana agrees that the comment made by the bailiff in the presence of the

jury as they were about to commence deliberations constituted error and that the

state court’s decision concerning the issue was unreasonable. See 28 U.S.C. §

2254(d). Therefore, we must solely determine whether the district court erred by

concluding that the error was not harmless. On habeas review, when considering

whether an improper comment made to the jury was harmless, the court applies the

standard from Brecht v. Abrahamson, 507 U.S. 619 (1993).

      Rukes argues that the mere presence of a plain-clothed guard sitting behind

Rukes in the courtroom was prejudicial and that the surprise that the jurors must

have experienced when they discovered (right before entering the jury room to

deliberate) that Rukes was in fact being guarded, prejudiced the jury. However, to

support a finding that the error was harmful, actual prejudice must be shown.

Davis v. Ayala, 135 S. Ct. 2187, 2197-98 (2015). We note that the Supreme Court

handed down Davis nine months after the district court’s final order in this case.

      Rukes offers no evidence that he was actually prejudiced by the bailiff’s

improper comment. As evidenced by its acquittal of Rukes on two of the four

charges, the jury engaged in meaningful deliberations. The jury was presented

with substantial evidence that Rukes had committed the charged offenses and made

a reasonable decision based on that evidence. Therefore, as there is a lack


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evidence of actual prejudice, we must conclude that the district court erred by

granting Rukes’s petition for habeas relief.

      REVERSED and REMANDED.




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