                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,                                ORDER AND
           Respondent-Appellee.          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
claimed federal constitutional violation,
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 non-
sexual 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).
