Stephen Deck v. Mack Jenkins

Opinion by Judge CHRISTEN; Dissent by Judge M. SMITH

OPINION

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.” Gonzalez 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).

The Alleged Crime

In February 2006, the Laguna Beach Police Department collaborated with volunteers from an…

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 thirteen times in cases involving our application of AEDPA, 28 U.S.C. § 2254 , ten of which reversals have been unanimous. 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 application of federal law’ and what [the majority] believes to be ‘an incorrect or erroneous application of federal law.’ ” Nevada v. Jackson, — U.S.—, 133 S.Ct. 1990, 1994 , 186 L.Ed.2d 62 (2013) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 412 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)) (unanimously reversing our grant of habeas relief).

I. Background

As the majority explains, Deck engaged in online conversations with a…

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, Respondent-Appellee. 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

Before: Sidney R. Thomas, Milan D. Smith, Jr., and Morgan Christen, Circuit Judges.

Opinion by Judge Christen; Dissent by Judge M. Smith SUMMARY*

Habeas Corpus

The panel reversed the district court’s dismissal of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction of an attempted lewd act upon a child under the age of 14, and remanded for further proceedings.

The panel took as established that prosecutorial error occurred, where the California Court of Appeal decided that 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,…