Rainwater Law Group

Effective Criminal Defense

Deck v. Jenkins, No. 13-55130 [February 9, 2016]

Deck v. Jenkins

Amended opinion after denial of rehearing en banc, with a dissent from the denial of rehearing en banc finding the opinion inconsistent with the Supreme Court’s holding in Davis v. Ayala, 135 S. Ct. 2187 (2015). Deck who was convicted of attempted lewd act on a child claimed that the prosecutor committed misconduct during final argument by misstating the law of attempt thereby depriving Deck of a fair trial. The California Court of Appeal agreed the prosecutor’s argument was improper but found it harmless. The Ninth Circuit found the state court’s determination of harmless error was “an unreasonable application of clearly established federal law.” Here, “[b]ecause 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” the state court decision, that there was no constitution error, was objectively unreasonable. The court applied the Brecht test, finding that it “‘subsumes’ the AEDPA/Chapman standard for review of a state court determination of the harmless of a constitutional violation” and, therefore, a federal court need only apply the Brecht test. “A separate AEDPA/Chapman determination is not required.” The Court concluded that “no fairminded jurist could agree with the CCA’s harmlessness determination, and that the prosecutor’s misstatements resulted in ‘actual prejudice.’”


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