Ford v. Peery, 18-15498

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
PartiesKeith Undray Ford, Petitioner-Appellant, v. Suzanne M. Peery, Warden, Respondent-Appellee.
Docket Number18-15498
Decision Date18 August 2021

Keith Undray Ford, Petitioner-Appellant,

Suzanne M. Peery, Warden, Respondent-Appellee.

No. 18-15498

United States Court of Appeals, Ninth Circuit

August 18, 2021

D.C. No. 2:15-cv-02463-MCE-GGH

Before: William A. Fletcher and Ryan D. Nelson, Circuit Judges, and Donald W. Molloy, District Judge. [*]


Habeas Corpus

In a case in which a judge of this court sua sponte requested en banc rehearing, and in which appellant filed a petition for rehearing en banc, the panel on behalf of the court denied appellant's petition for rehearing en banc and denied rehearing en banc.

Judge VanDyke dissented from the denial of rehearing en banc.

He wrote that this circuit's cases misapplying AEDPA deference are legion, but the panel majority took this court's habeas dysfunction to a new level by issuing, when first confronted with an en banc petition, an amended opinion that opined about how the majority would refuse to defer to a purely hypothetical state court ruling as to whether the prosecutor's comments at the end of closing rebuttal argument constituted misstatements of law.

As in its now-vacated opinion, the majority began its analysis in its amended opinion by correctly describing the issue as whether the prosecutor's presumption-of-innocence comments constituted misconduct in violation of due process under Darden v. Wainright, 477 U.S. 168 (1986). Judge VanDyke wrote that after laying the appropriate prejudice-focused foundation for a proper Darden analysis, the majority then diverted to an odd and lengthy dicta discussion. Despite the California Court of Appeal's explicit assumption that the prosecutor did misstate the law, and despite Darden's primary focus on the prejudicial effect from any alleged misconduct (and not the misconduct itself), the majority concluded that "even if there were a state-court decision holding that the prosecutor did not misstate the law, we would conclude that such a holding would have been unreasonable."

Judge VanDyke wrote that the majority misconstrued the Darden analysis and misapplied AEDPA-again-in its hypothetical dicta. He explained that when appropriately evaluated in context, the prosecutor's presumption-of-innocence remarks did not rise to the level of misconduct; and that given the lack of clearly established law as to the propriety of a prosecutor's remarks in this context, even the majority's hypothetical state court decision would not actually "unreasonably" apply any clearly established law.

Judge VanDyke wrote that the majority's dicta illuminates the potential for abuse of this court's "binding dicta" rule, under which this court views "well-reasoned" dicta as binding. He emphasized that all of this could have easily been avoided if the majority had voluntarily removed its dicta during the first en banc proceedings. He concluded that instead of starting down a path of issuing advisory AEDPA fumbles, the court should have taken the panel's amended opinion en banc to nip this new practice in the bud, and to clarify the badly amorphous binding dicta rule.


A judge of this court sua sponte requested a vote on whether to rehear this case en banc. The parties were directed to file simultaneous briefs setting forth their respective positions as to whether this case should be reheard en banc. Appellant filed a petition for rehearing en banc following the panel's order.

Judges W. Fletcher and R. Nelson have voted to deny the petition for rehearing en banc, and Judge Molloy has so recommended. The full court was advised of Appellant's petition for rehearing en banc.

A vote was taken on the sua sponte call and the matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. See Fed. R. App. P. 35(f). Appellant's petition for rehearing en banc (Dkt. No. 82) is DENIED. Rehearing en banc is DENIED.

Judge VanDyke's dissent from the denial of rehearing en banc is attached and filed concurrently with this order.

VANDYKE, Circuit Judge, dissenting from denial of rehearing en banc:

Our circuit's cases misapplying AEDPA deference are legion, and the resultant game of whack-a-mole the Supreme Court has been forced to play with our habeas decisions is so well known at this point as to need no supporting citation.[1] But this case takes our habeas dysfunction to a new level. Initially, the panel majority here refused to provide AEDPA deference, granting habeas relief to Petitioner Keith Ford in a split opinion. Confronted with an en banc petition, the panel was forced to reverse itself, issuing an amended opinion that, this time, begrudgingly deferred to the state court's conclusions on the part of Ford's case that mattered, and so appropriately denied habeas relief. As Judge Nelson observed in his partial dissent from the panel's amended opinion, this was a commendable move that likely saved the panel majority from being reversed either by our own court en banc or by the Supreme Court. Ford v. Peery, 999 F.3d 1214, 1227 (9th Cir. 2021) (R. Nelson, J., dissenting in part and concurring in the judgment).

If that had been all that the panel majority did, there would be cause for celebration in the West and hope that perhaps our court was really turning over a new leaf. But alas, like a sullen kid who spits in the cookie jar after being caught red-handed, the panel majority decided that if they couldn't get away with directly defying AEDPA in this case, they could at least opine in their revised opinion about how they would refuse to defer to a purely hypothetical state court ruling not presented in this case at all.

This appears to be an entirely new phenomenon. Our court has a well-documented habit of not properly deferring to actual state court rulings in AEDPA cases, including a long list of summary reversals from the Supreme Court. But I'm not sure I've ever seen our court make up a pretend state court ruling just so it could refuse to apply AEDPA deference to it while pummeling a strawman of its own making. Weird.

Have things gotten so bad for my AEDPA-disdaining colleagues that they are forced to invent stuff that they can then hypothetically refuse to defer to, secure in the knowledge that at least those advisory rulings won't get reversed? It's possible. But I tend to think they're likely trying to do something more nefarious. Instead of starting down a new path of issuing advisory AEDPA fumbles, our court should have taken the panel's amended opinion en banc to nip this new practice in the bud. And in doing so, we could have taken this opportunity to clarify our badly amorphous "binding dicta" rule, [2] making clear that attempts like the panel majority's here won't work. Because we didn't, I respectfully dissent from the denial of rehearing en banc.


The majority's amended opinion is a product of what preceded it, so some background is necessary. A jury convicted Ford of first-degree murder for shooting Ruben Martinez point-blank in the head. People v. Ford, No. A137496, 2014 WL 4446166, at *1 (Cal.Ct.App. Sept. 10, 2014). Throughout Ford's trial, the court repeatedly admonished the jurors to refrain from deciding any issue in the case until after the entire case was presented and the jury was released for deliberations. And immediately prior to closing arguments, the trial court instructed the jury that "[a] defendant in a criminal case is presumed to be innocent," which "requires that the People prove a defendant guilty beyond a reasonable doubt." The trial court also reminded the jury that "[i]n their . . . closing arguments, the attorneys discuss the case, but their remarks are not evidence." It warned the jury that "[i]f you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." Later, the trial court again reminded the jury that "[y]ou may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt," that "[i]t is up to you to decide whether an assumed fact has been proved," and that no juror should "make up your mind about the verdict or any issue until after you have discussed the case with the other jurors during deliberations."

In his closing arguments, the prosecutor reiterated the trial court's instruction that "[e]vidence is not anything that I say up here. This is just argument . . . . What I am saying here is not evidence." He also informed the jury that "[t]he real work is going to be starting in a little bit, and that's where we're not involved. It's when you guys are all back there together talking about this case." But for the purposes of his closing, the prosecutor stated, "I'm going to go back over the facts of this case and show you why I have proven beyond a reasonable doubt that the defendant committed murder in this case, beyond a reasonable doubt that he killed Ruben Martinez . . . ." The prosecutor proceeded to discuss at length the evidence of Ford's guilt, all the while referencing the government's beyond-a-reasonable-doubt burden to show that he had met that high burden. "In combination with all the other information," he explained, a statement by Ford during a phone call was "proof beyond a reasonable doubt." He concluded that "when you . . . follow all the evidence and you follow all the law, you're going to reach the same conclusion that I asked you to reach at the beginning of this case that the defendant is guilty of murder . . . ." Ford's counsel then delivered her closing arguments, where she repeatedly emphasized Ford's presumption of innocence.

Lastly, the prosecutor began his lengthy closing argument rebuttal by noting that "[t]his is now my opportunity just to respond to what [Ford's counsel] said." He acknowledged that "it's true [the defendant's counsel] doesn't have to present any evidence. It is my burden of proof," but that "[w]e're way past that point. It's been proven to you every which way ....

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