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Deck v. Jenkins

United States Court of Appeals, Ninth Circuit

September 29, 2014

STEPHEN ROBERT DECK, Petitioner-Appellant,
v.
MACK JENKINS, Chief Probation Officer, Respondent-Appellee

Argued and Submitted, Pasadena, California April 8, 2014.

Amended February 9, 2016.

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Appeal from the United States District Court for the Central District of California. D.C. No. 8:11-cv-01767-MWF-FFM. Michael W. Fitzgerald, District Judge, Presiding.

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 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.

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, ...


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