Ford v. Peery

Decision Date18 August 2021
Docket NumberNo. 18-15498,18-15498
Parties Keith Undray FORD, Petitioner-Appellant, v. Suzanne M. PEERY, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

9 F.4th 1086 (Mem)

Keith Undray FORD, Petitioner-Appellant,
Suzanne M. PEERY, Warden, Respondent-Appellee.

No. 18-15498

United States Court of Appeals, Ninth Circuit.

Filed August 18, 2021

Dissent by Judge VanDyke


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

9 F.4th 1087

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

9 F.4th 1088

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 ... that [palm]print was the defendant's ...." He continued, "there's always two sides to every story .... but if that other side is a clearly unreasonable version of the events, then it's your job as jurors to reject that .... [T]hat's part of the beyond-a-reasonable-doubt analysis that you do in this case." "Context is everything. You consider all of the evidence, not just some of it ...." "Bottom line, ... I've provided you with all the information that you need to feel the abiding conviction of the truth of these charges. I have provided the information for you to make that decision" and "to follow through with your promise to not hesitate to convict once the case has been proven to you beyond a reasonable doubt. This idea of this presumption of innocence is over. Mr. Ford had a fair trial. ... He's not presumed innocent anymore."

At this point, Ford's counsel objected that the prosecutor "misstate[d] the law." After a sidebar, the judge overruled the objection, reasoning that the prosecutors’ comments were "the final comment in the context of argument. [The jury has] been reminded continuously that they're not to form or express any opinions until after they deliberate with their fellow jurors, so I don't think there's any particular harm in that and that this was the final argument, closing argument." So the prosecutor continued with his closing rebuttal argument before the jury: "And so we're past that point. We're at the point now where you go back, look at the information that you have before you .... and you should feel comfortable with your decision. ... And the evidence before you, when you take all of that information together, is that the defendant is guilty of murder."

Following the closing arguments and before releasing the jury to deliberate, the trial court provided the jury with instructions that again reiterated Ford's presumptive innocence. By the time the jury went into deliberations, it had repeatedly received instructions from the trial court, the prosecutor, and Ford's counsel reiterating Ford's presumption of innocence.

After deliberating, the jury returned with a verdict of first-degree murder. Ford , 999 F.3d at 1217. The jury could not reach a verdict on some charged enhancements, which, as Judge...

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