Ford v. Peery, No. 18-15498 (9-28-20)(Fletcher w/Molloy; dissent by R. Nelson). The 9th grants a writ. In a first-degree murder case, the state prosecutor, in rebuttal closing, argued that the presumption of evidence no longer applies: the defendant had a fair trial, got to cross examine, and could present evidence. Defense counsel objected but was overruled by the court. In Darden v. Wainwright, 477 US 168 (1986), the Court held that such “over” statements amounted to prosecutorial misconduct in violation of due process. Applying the test of various factors established in Hein v. Sullivan, 601 F.3d 897 (9th Cir. 2010), the panel here concluded that the misstatement was prominent; the court failed to correct; and defense counsel did not invite such error nor could respond; the evidence itself was not overwhelming: it was circumstantial and problematic. Further, the jury had deadlocked.  So, the 9th found a due process violation. As for AEDPA, the panel held that it was an unreasonable application of Chapman and harmlessness. The state court had failed to even consider Darden.

Dissenting, R. Nelson accuses the panel of adopting broad supervisory power over the state court rather than the narrow legal standard of deference under AEDPA.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/28/18-15498.pdf