Full opinion text
Dissent to Order by Judge BEA; Opinion by Judge CHRISTEN; Dissent by Judge MILAN D. SMITH, Jr. ORDER The opinion filed on September 29, 2014, is amended and the amended majority and dissenting opinions are filed concurrently with this order. With these amendments, a majority of the panel has voted to deny the petition for panel rehearing. The full court has been advised of the petition for rehearing and rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. A majority of the nonrecused active judges did not vote in favor of rehearing en banc. Fed. R.App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are DENIED. A dissent from denial of rehearing en banc is filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed. BEA, Circuit Judge, with whom O’SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA, and N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc: The ink is hardly dry on the Supreme Court’s latest reversal of another of our judgments where we disregarded the deference the Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires we give state court.decisions that any trial court errors were harmless, thus precluding any entitlement to habeas relief. Yet here we have gone and done it again. The panel majority (the “Majority”) today rejects a California appellate court’s reasoned and supported conclusion that pros-ecutorial misstatements made during Defendant Deck’s trial constituted harmless errors, in favor of its own determination that such statements were actually prejudicial. As explained below, I find four major missteps in the Majority’s opinion. First, the Majority reads Davis v. Ayala to hold that a federal habeas court’s finding that a state trial court error was prejudicial under Brecht dispenses with AED-PA’s requirement that the federal habeas court must also find that the state court applied “well-established” Supreme Court precedent in an “unreasonable” manner when it found the same error harmless (a “Cteproim/AEDPA” analysis). See Op. at 985-86. This conclusion is illogical because Brecht requires only a finding by a federal court that (in its view) an error was not harmless — without any deference to, or evaluation of, the reasonableness of a prior state court determination. Under Chapman /AEDPA, conversely, we must accept a state court’s prior harmless error determination unless it involved such an “unreasonable” application of Supreme Court precedent that “no fairminded jurist” could agree with it. See Davis v. Ayala, — U.S. —, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015). Thus, though a Chapman/AEDPA finding would necessarily mean that a trial error was harmful (and thus also satisfy Brecht) the contrary is not necessarily true. Indeed, the panel Majority’s test got it precisely backwards. The Majority did so by committing its second error: It read Justice Alito’s statement that “the Brecht test subsumes the limitations imposed by AEDPA,” id. at 2199, to mean that Brecht eliminated, rather than incorporated, AEDPA deference. But it is hard to see how that can be correct when the Brecht standard was developed in 1993 — three years before AED-PA was enacted. And of course, were the Majority’s understanding the correct reading of the phrase, Ayala would necessarily have come out the other way. As a result of its misreading, the panel Majority’s decision is directly contradictory to the Court’s opinion in Ayala. In fact, it is consistent with Justice Sotomayor’s dissent in Ayala. Third, applying its faulty test, the panel Majority’s analysis fails to afford proper AEDPA deference to the state court’s harmless error determination. In the portions of the Majority’s opinion dedicated to finding the state court’s determination of harmless error unreasonable, the Majority considers only the evidence and arguments pointing to a prejudicial effect of the prosecutor’s misconduct, rather than (as AED-PA requires) whether any of the evidence and arguments put forth by the state court provided a reasonable basis for that court’s determination that any error was harmless. Fourth, the legal basis for the Majority’s conclusion that “no fairminded jurist” could agree with the state court’s finding of harmless error under Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), in fact supports the opposite conclusion. That is, every Supreme Court precedent regarding prosecu-torial misconduct cited by the Majority found not prejudicial error, but harmless error. As highlighted in Judge M. Smith’s dissent in Deck v. Jenkins, 768 F.3d 1015, 1031 & n. 1 (9th Cir.2014), the Majority’s approach to federal habeas review has been rejected by the Supreme Court not once, not twice, but upwards of a dozen times. See, e.g., Ayala, supra, 135 S.Ct. at 2196-99, 2208; see also Richter v. Hickman, 578 F.3d 944 (9th Cir.2009) (en banc), rev’d and remanded by Harrington v. Richter, 562 U.S. 86, 101-02, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (rejecting our conclusion that because we found a prejudicial Strickland violation under Brecht, the “state court’s decision to the contrary constituted an unreasonable application of Strickland,” and explaining that “AEDPA demands more” than the traditional Brecht test); Smith v. Mitchell, 624 F.3d 1235 (9th Cir.2010), rev’d and remanded sub nom. Cavazos v. Smith, — U.S. —, 132 S.Ct. 2, 6-8, 181 L.Ed.2d 311 (2011) (per curiam) (reversing our grant of habeas relief and stating: “This Court vacated and remanded this judgment twice before, calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts in § 2254-(d) habeas cases. Each time the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention.... Its refusal to do so necessitates this Court’s action today.” (emphasis added)). In sum, the Deck Majority’s application of Brecht without § 2254(d)(1) deference flouts the Supreme Court’s recent mintage in Davis v. Ayala by immediately reinstating the framework the Court had just rejected. Moreover, because the Ayala Court reversed and remanded that case back to the Ninth Circuit for proceedings consistent with its opinion, see Ayala, 135 S.Ct. at 2208, the Deck Majority’s issuance of a directly contradictory opinion will immediately create not only an intra-Circuit split, but also divergence between our own precedent and that of our sister Circuits. See Fed. R.App. P. 35(a)(1). This is why I called this case en banc. Unfortunately, the call failed. I. In Davis v. Ayala, the Supreme Court squarely addressed the proper interaction between Brecht’s “actual prejudice” standard, see n. 3, supra, and AEDPA’s mandated deference (which post-dates Brecht ), where the state court has previously decided a federal constitutional issue on its merits. Ayala, 135 S.Ct. at 2187-98 (2015). In Ayala, the petitioner sought federal habeas relief after the California Supreme Court affirmed his murder conviction and death sentence. See id. at 2194-95. During jury selection, Ayala (who is Hispanic) had objected to seven of the prosecutor’s eighteen preemptory challenges, which seven challenges had eliminated all potential black and Hispanic jurors on the panel. Ayala’s objection was that the challenges were impermissibly race-based under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Ayala, 135 S.Ct. at 2193-94. The trial judge had permitted the prosecutor to offer race-neutral reasons for each strike, but only in an ex parte hearing, because the prosecutor had claimed he did not want to reveal his trial strategy. Id. at 2193. On direct appeal, the California Supreme Court held that the exclusion of Ayala’s counsel from the hearing on preemptory strikes was federal constitutional error, but that such error was “harmless beyond a reasonable doubt” under the Chapman test because nothing defense counsel could have said, had he been present when the trial judge required the prosecution to state reasons for his preemptory challenges, would have changed the trial court’s rulings. Id. at 2195. The Ninth Circuit reversed, granting ha-beas relief. Id. at 2193. It identified Brecht as the governing standard on collateral review, but added: “We apply the Brecht test without regard for the state court’s harmlessness determination.” Id. at 2196 (emphasis added). The court then concluded that the exclusion of defense counsel from ex parte communications by the prosecutor to the trial court judge was not harmless, but constituted prejudicial error under Brecht. Id. at 2197. The Supreme Court reversed us yet again, specifically rejecting our exclusive application of Brecht, without AEDPA deference to the state court’s harmless error determination. See id. at 2198. The Court explained that a prior state court harmless error adjudication triggered AEDPA deference within the traditional Brecht analysis. See id. at 2199 (“[A] prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA.”). If AEDPA deference has been triggered by a state court merits determination as to the claimed federal constitutional violation, Chap-tocto/AEDPA — that is, a finding that the state court’s harmlessness determination was an “unreasonable” application of “clearly established” Supreme Court precedent — becomes an additional “precondition to the grant of habeas relief.” Id. at 2198-99 (A petitioner “must show that the state court’s decision to reject his claim ‘was so lacking in justification that there was an error well understood ... in existing law beyond any possibility for fair-minded disagreement.’ ” (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011))). In fact, Chapman/AEDPA requires the federal court to consider not only the arguments that the state court actually made, but also those arguments that “could have supported[ ] the state court’s decision.” Harrington, 562 U.S. at 102, 131 S.Ct. 770. Consistent with this framework, the Supreme Court’s analysis in Ayala “beg[a]n with the prosecution’s explanation^]” for striking each juror and concluded with findings that the petitioner could show neither “actual prejudice” (Brecht) nor that “no fairminded jurist could agree with the state court’s application of Chapman.” See, e.g., Ayala, 135 S.Ct. at 2203; see also 28 U.S.C. § 2254(d)(1). The Court again chastised our court for failing to consider — without “substituting] its own opinions” — whether “any fairminded jurist” could agree with the state court’s proffered reasons for finding any error was harmless. See, e.g., Ayala, 135 S.Ct. at 2202 (“The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems ... not to apply de novo review of factual findings and to substitute its own opinion for the [state court’s] determination.... ” (internal quotation marks and citations omitted)); see also id. at 2205 (rejecting the Ninth Circuit’s “speculation” and “flight of fancy” about “extrarecord information defense counsel might have mentioned”). In her Ayala dissent, Justice Sotomayor argued that “[i]f a trial error is prejudicial under Brecht’s standard, a state court’s determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable.” Ayala, 135 S.Ct. at 2211 (2015) (Sotomayor, J., dissenting). But that proposition is exactly what the Davis v. Ayala majority had just rejected. See id. at 2197, 2208 (holding that the Ninth Circuit’s finding of actual prejudice under Brecht did not “necessarily” render the state court’s contrary finding “unreasonable”; a separate Chapman/AEDVA. analysis was required to make that determination). As discussed below, however, the Deck panel Majority adopted Justice Soto-mayor’s erroneous statement of law. In my view, this outright disregard for binding Supreme Court precedent, particularly in light of the Supreme Court’s recent reversal of the Ninth Circuit on this very question, warranted en banc review. See Fed. R.App. P. 35(a)(1). II. With these principles in mind, I turn to the present federal habeas claim by 46-year-old Stephen Deck (“Deck”) arising from his California state court conviction of attempt to commit a lewd or lascivious act on a child under the age of 14. See Cal.Penal Code §§ 288(a); 664. Defendant Deck began chatting online with a fictitious 13-year-old girl named “Amy.” “Amy” was actually a volunteer working on a police sting operation targeted to identify and arrest adults using the internet to meet minors for sex. Deck identified himself in his online profile as a 46-year-old male who was “single and looking.” Deck initiated contact with Amy by sending her a message stating, “Older for younger here.” Amy responded positively, and the two began exchanging sexually suggestive messages nearly every day for a week. Throughout these chats, Deck called Amy “hot,” a “hottie,” “sexy,” and “a little slutty.” Deck said he wanted to “date” Amy, to take pictures of her, to “hold” her, and to “kiss” her. When Amy replied “that is what [boyfriends] and [girlfriends] do,” Deck interjected, “[m]mm, yessss ... [a]ll that and more.... ” Deck said he wanted to perform oral sex on Amy, promising that it would feel “so good.” Deck used the imagery of “eating pie” as an allusion to oral sex. Deck asked Amy about her own sexual experiences and how she “like[d] sucking cock?” In arranging their first date, Deck — a lieutenant in the California Highway Patrol — expressed trepidation about meeting at Amy’s apartment, indicating that he would “hate to walk into an apartment where I don’t know — really who’s there” and told Amy that he needed to “make sure if it’s real....” Ultimately, Amy and Deck decided to meet in a park next to Amy’s apartment. But in discussing what the pair would do on their first date, Deck agreed they would “eat pie and stuff and talk,” and repeatedly suggested they “see what’s on TV” (presumably at Amy’s house, not at the park). On the day of the planned rendezvous, Deck claimed to have a “sore throat.” When Amy told Deck they would have to wait two more weeks before Amy’s mom would be “working” on a weekend again (so that Amy would be home alone), Deck decided to come over despite his illness to “say hi and meet [Amy].” Just before signing off, Deck reminded Amy, “Remember I am sick so no kissing or nothing. Just bringing you your pie.” But Deck also announced, “I probably won’t be able to keep my hands off of you.” Deck drove 45 minutes to Amy’s house and arrived at 8:35 p.m. He parked in Amy’s apartment complex and walked to the park. Spotting a young female, Deck approached and asked whether she was “Amy.” The female responded by asking whether he was “Steve.” When Deck acknowledged his identity, police arrested him. Investigators searched Deck’s person and found a digital camera and a piece of pie. A search of Deck’s vehicle revealed a Mapquest printout with directions to Amy’s apartment and six expired condoms. Deck’s home computer contained sexually charged chat logs between Deck and two other young girls with whom Deck had attempted to arrange meetings. A. Deck was charged in California state court with attempt to commit a lewd or lascivious act upon a child. See CaLPenal Code §§ 288(a); 664. As applied to these facts, California law required that Deck intended to “touch” Amy on the night of the “date,” though the touching need not appear sexual and could occur anywhere on Amy’s body or through clothing. Deck’s theory of defense at trial was that “like it or not the law [of attempt] is on Mr. Deck’s side,” because the prosecutor cannot show beyond a reasonable doubt that Deck intended to touch Amy that night. The prosecutor called the defense’s theory “baloney,” arguing that in the “defendant’s own words,” “he wouldn’t be able to keep his hand off of [Amy],” and thus he “definitely” intended to touch Amy that night. The prosecutor emphasized that something as apparently benign as giving Amy a goodbye “hug,” holding her hand, or posing her for photos would have qualified as “lewd” under § 288(a), given Deck’s sexual intent. But, at one point, the prosecutor also argued (improperly): “I don’t have to prove to yoii that [Deck] was going to commit a lewd act on ... February 18th, 2006.... [E]ven if his intent was just to meet [Amy], get to know her, break the ice and follow up the next day, the next week, maybe [in] two weekends when Mom’s gone ... that is all I need.” Defense counsel neither objected, nor moved to strike, nor asked for a curative instruction. At the end of the parties’ arguments, the judge properly instructed the jury that attempt in California requires an “immediate step” that “goes beyond planning or preparation” and “puts the [defendant’s] plan into motion so that the plan would have been completed [absent some ‘outside’ circumstance].” On the first day of deliberations, a Thursday, the jury sent the judge a note, asking him to “clarify [the] law as it relates to whether defendant did not have to do anything that day only attempt to put it into play.” This question prompted debate between counsel regarding the immediacy element of attempt. The judge requested supplemental briefing and dismissed the jury pending resolution of the issue. The jury reconvened the following Tuesday, December 21, 2009, by which time one juror had fallen ill and been replaced by an alternate. The judge never answered the jury’s original question — instead instructing the “new” jury to begin deliberating anew and inviting it to submit any “questions” it “want[ed] answered.” After 22 minutes of deliberation and without submitting any questions, the jury rendered a guilty verdict. B. Deck appealed his conviction to the California Court of Appeal (“CCA”), arguing that the prosecutor’s misstatement of law negated an essential element of attempt: that the attempted act was to occur that night. Moreover, Deck argued, his arrangement to meet Amy in a public park, combined with his statements that he was “sick” and just wanted to “say hi,” made Deck’s intent to commit a lewd act on the night of the sting too ambiguous to render the prosecutor’s misstatement “harmless.” The CCA agreed that this small excerpt of the prosecutor’s closing statement was legally incorrect, but found the error harmless for three reasons. First, the CCA emphasized that § 288(a)’s “touching” requirement could be satisfied by a range of apparently nonsexual touching, like a seemingly “innocent hug” or “other ... public” touching. People v. Deck, No. G043434, 2011 WL 2001825, at *10 (Cal.Ct.App. May 24, 2011) (“The ‘controlling factor’ is the defendant’s intent when touching the minor, not the type of touching.’ ”). There was no reason why the requisite touching could not occur in a public park. Id. Nor did the fact that Deck planned to meet Amy in public mean that Deck intended to remain in public. Id. Deck had explained that he wanted to “make sure if it’s real and you’re there.” Deck had told Amy earlier that day that the pair would watch TV on their date (presumably, not in the park) and eat “pie,” a double entendre for oral sex. Deck arrived after dark with a camera. The standard for attempt is also not particularly onerous: California courts have found attempt where the defendant showed up at a public bus station to meet a minor before going to a hotel. Id. at *8 (citing People v. Crabtree, 169 Cal.App.4th 1293, 1322-23, 88 Cal.Rptr.3d 41 (2009)). With these principles in mind, the CCA found “sufficient evidence” to prove that Deck intended to commit a lewd act on Amy on the night of the sting: Deck specifically sought out Amy because of her age (“Older for younger here”); Deck engaged in repeated, sexually explicit communications with Amy in which he indicated a clear desire to kiss, photograph, and perform oral sex on Amy (thus establishing that Deck possessed the requisite mental state to render any touching unlawful under § 288(a)); Deck used “eating pie” as a euphemism for oral sex, and told Amy on the day of the date that he would “bring her pie” and would probably not be able to keep his hands off her; Deck drove 45 minutes to Amy’s house, while Amy was home alone, and while “ill,” because he could not wait two more weeks to see her; Deck arrived at the park by Amy’s house with a camera and condoms. Id. at *9. Given the “jury’s role in assessing the credibility of Deck’s statements,” a “rational juror” could conclude that Deck’s claims of illness and his insistence on meeting Amy outside were merely a “ploy” to verify Amy’s age and identity. Id. Assuming “Amy” was real, Deck had every intention of “touching” her within the broad meaning of § 288(a). Id. Second, the CCA noted, the prosecutor’s closing argument properly focused “on Deck’s clear intent ... to commit a lewd act with the victim on the weekend he actually met with her.” Id. at *12. The prosecutor’s “errant gloss on the law of attempt” was an “isolated departure in a few stray words” from that theme. Id. Third, the trial court properly instructed the jury, and California law presumes that the jury followed these instructions over any contrary statements by counsel. Id. at *12-13. Indeed, the judge specifically instructed the jury: ‘You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must-follow my instructions.” The jury’s question did not justify abandoning this presumption, the CCA' explainéd, because the court could presume that “having taken a fresh look [after the weekend] — or a first look in the case of the new juror — at the trial court’s instructions, [the jury] had no further questions for the trial court and reached a verdict.” Id. at *13 (“Consequently, there is no basis to conclude the jury disregarded the trial court’s instructions and instead fixated on an isolated comment by the prosecutor.”). A fairminded jurist could also conclude that, given the strong evidence against Deck, any error was harmless. For all these reasons, the CCA concluded, any misstatement by the prosecutor was harmless. C. On habeas appeal, a federal magistrate judge reviewed the CCA’s analysis at length and recommended that it was “neither an unreasonable application of, nor contrary to, clearly established federal law.” Deck v. Jenkins, No. SACV 11-1767 MWF FFM, 2012 WL 6853245, at *11 (C.D.Cal. Nov. 7, 2012), report and recommendation adopted, No. SACV 11-1767 MWF FFM, 2013 WL 146351 (C.D.Cal. Jan. 14, 2013). The district court agreed and denied Deck’s petition for relief, but granted a Certificate of Appealability (“COA”) regarding the harmlessness of the prosecutor’s misstatement of law. Deck, 2013 WL 146351, at *1. A divided Ninth Circuit panel has reversed. Deck v. Jenkins, 768 F.3d 1015, 1017 (9th Cir.2014). The Majority opined, as a threshold matter, that an error of constitutional magnitude had occurred (the prosecutor’s misstatement violated Deck’s right to due process under Darden). Id. at 1031. The Majority also concluded that it had “grave doubt” as to whether the prosecutor’s misstatements were harmless under Brecht, and granted habeas relief on this basis. Id. Issuance of the court’s mandate was thereafter stayed pending the outcome of Davis v. Ayala — which fundamentally contradicted the Majority’s analysis. Nonetheless, the Majority stayed its course, reading Justice Alito’s reversal of our grant of habeas relief in Ayala based on a bare application of Brecht as somehow affirming precisely the opposite: that the panel may grant habeas relief as long as it found “actual prejudice” under Brecht; no separate AEDPA analysis was required. See Op. at 985-86. For the reasons set forth below, neither the Majority’s statement of the applicable legal standard, nor its analysis, can be squared with binding Supreme Court precedent. III. A. The Majority’s first error lies in its adoption of an approach to federal habeas review plainly reminiscent of the Ayala dissent. The Deck Majority holds: “A determination that [a constitutional] error resulted in ‘actual prejudice’ [under Brecht ], necessarily means that the state court’s harmlessness determination was not merely incorrect, but objectively unreasonable .... A separate AEDPAJChap-man determination is not required.” Op. at 985-86 (emphases added); cf. Ayala, 135 S.Ct. at 2211 (Sotomayor, J., dissenting) (“Fry expressly held that federal ha-beas courts neéd not first assess whether a state court unreasonably applied Chapman before deciding whether that error was prejudicial under Brecht----If a trial error is prejudicial under Brecht’s standard, a state court’s determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable.”). The legal standard Justice Sotomayor advanced in dissent is fundamentally inconsistent with that applied by the Ayala majority, and thus the Deck Majority erred in relying upon it. To start, Justice Sotomayor stated that the Ayala majority did nothing more than “simply restate[] the holding of Fry v. Pliler.” Id. at 2211. That is simply not accurate — Fry did not involve an application of AEDPA. The issue in Fry was whether a federal habeas court should apply Chapman de novo (instead of Brecht de novo ) where the state court had “failed to recognize [any constitutional] error” and thus had not engaged in any harmless error analysis on direct review. Fry v. Pliler, 551 U.S. 112, 114, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). The Fry Court held that for reasons of “finality, comity, and federalism,” a federal habeas court must apply Brecht on habeas review, even where the state court never applied Chapman. Id. at 116, 121-22, 127 S.Ct. 2321. But the Fry Court had no occasion to consider the effect of AEDPA on Brecht where — as here — there has been a prior state-court finding of harmless error. Thus, Justice Sotomayor erroneously interpreted Fry when she suggested that the Court there held a finding of “prejudic[e] under Brecht ... [renders] a state court’s determination that the error was harmless beyond a reasonable doubt ... necessarily unreasonable.” Ayala, 135 S.Ct. at 2211. In fact, the Supreme Court squarely confronted and rejected this very contention in Davis v. Ayala, supra, and Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). In both cases, the Court emphasized that the Chapman/AEUPA standard requires something more than a traditional application of Brecht. See, e.g., Harrington, 562 U.S. at 101-02, 131 S.Ct. 770 (rejecting this Circuit’s conclusion that a finding of actual prejudice under Brecht satisfied AEDPAJChapman and explaining that such a proposition must be incorrect-to hold otherwise would render AEDPA a nullity). The Majority’s adoption of Justice Sotomayor’s statement that Chapman/AEDPA is wholly redundant of Brecht is directly contrary to the central rule of Davis v. Ayala that Chapman/AEDPA sets forth a mandatory “precondition” to habeas relief. Ayala, 135 S.Ct. at 2198-99. It also contravenes the Supreme Court’s instruction that “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported or ... could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.... [That is] the only question that matters under § 2254(d)(1).” Harrington, 562 U.S. at 101-02, 131 S.Ct. 770 (emphases added) (internal quotation marks omitted) (reversing the Ninth Circuit’s grant of habeas where the Ninth Circuit had applied Brecht de novo, found a Strickland violation, and “declared, without further expía--nation, that the ‘state court’s decision to the contrary constituted an unreasonable application of Strickland ’ ”). True, as Justice Sotomayor and the Deck Majority have pointed out, the Fry Court did suggest that Chapman/AE/DBA was “more liberal” (ie. more petitioner-friendly) than Brecht. See Fry, 551 U.S. at 119-20, 127 S.Ct. 2321; see also Op. at 985-86. But not only was this dicta, it has since been discredited by Harrington and again by Ayala. Indeed, the Ayala majority stated point-blank: “The Fry Court did not hold — and would have had no possible basis for holding — that Brecht somehow abrogates the limitation on federal habeas relief that § 2254(d) plainly sets out. While a federal habeas court need not ‘formally]’ apply both Brecht and ‘AEDVA/Chapman,’ AEDPA nevertheless ‘sets forth a precondition to the grant of habeas relief.’ ” Ayala, 135 S.Ct. at 2198. That Fry’s dicta has not survived subsequent precedents is borne out by the fact that it would have mandated the opposite outcome in Davis v. Ayala. If — as Justice Sotomayor and the Deck Majority insist— a finding of “actual prejudice” under Brecht “necessarily means” that the state’s court’s finding of harmlessness was unreasonable, then our Circuit’s finding of actual prejudice under Brecht would have entitled Ayala to habeas relief. Yet that is exactly what was rejected in Ayala. The Deck Majority’s reliance on Justice Sotomayor’s dissent is therefore fundamentally unsound. B. The Majority’s erroneous conclusion that we apply the same Brecht test irrespective of whether a state court has previously found a claimed constitutional error harmless beyond a reasonable doubt also appears to stem from a misinterpretation of the word “subsumes.” In delivering the opinion of the Ayala Court, Justice Alito explained that “a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA.” Ayala, 135 S.Ct. at 2199 (emphasis added). From the word “subsumes,” the Deck Majority concludes that Brecht somehow already incorporates AEDPA deference thereby eliminating the need to conduct an independent Chapman/AEEP A analysis. See Op. at 985-86. But read in light of the Ayala Court’s reversal of our holding that a Brecht analysis alone could support a grant of habeas relief, the word “subsumes” cannot possibly have the meaning ascribed to it by the Deck Majority. Indeed, Brecht pre-dates AEDPA. It is thus historically and logically impossible that Brecht already incorporates AEDPA deference. And the very fact that Justice Alito distinguished between the traditional Brecht analysis and the analysis we must undertake “if the state court [has previously] adjudicated [the prisoner’s] claim on the merits” only confirms that the Majority’s interpretation of the word “subsumes” to mean “eliminates,” rather than “incorporates,” is incorrect. More fundamentally, the Majority ignores the common-sense meaning of the word, which Merriam Webster defines as “to include or place within something larger or more comprehensive, [e.p.,] ... red, green, and yellow are subsumed under the term ‘color.’ ” See Subsume, Merriam-Webster Online Dictionary, http:// www.merriam-webster.com/dictionary/ subsume (last visited Nov. 6, 2015). Red, green, and yellow do not stop being individual and different colors simply because they are “subsumed” in the broader term “color.” Neither do AEDPA limitations cease to exist when “subsumed” under Brecht. True, as the Deck Majority also pointed out, the Court’s opinion in Ayala suggested that a habeas court need not “formally” apply both Brecht and Chapman!AEDPA. But as the Court’s analysis demonstrates, the lack of a procedural process does not make the Chapman/AEDPA standard any less of a requirement. See, e.g., Ayala, 135 S.Ct. at 2202-05. C. As the Ayala Court made plain, Chapman/AEDPA provides a “precondition” to relief, see id. at 2198, and it is Brecht’s standard that “necessarily” cannot be met “if a fairminded jurist could agree with the [CCA’s] decision that [the prosecutor’s error] met the Chapman standard of harmlessness,” id. at 2199. And unlike Brecht’s standard, which permits a grant of habeas relief as long as the appellate court would find harmful error, AEDPA deference requires a finding that the prosecutor’s misstatement was not harmless under “any reasonable application” of “clearly established” Supreme Court precedent before habeas relief may be afforded. See Panetti v. Quarterman, 551 U.S. 930, 948, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (emphasis added). In other words, it is not enough that the state’s harmlessness determination was incorrect; Chapman/AEDPA requires that the application of Supreme Court precedent to the particular facts before the court be so clearly established that the state court’s determination was objectively “unreasonable.” Id. And before a court of appeals may find unreasonableness, it must consider not only the many “arguments or theories” that the state court actually offered, but also any that “could have supported” its determination. See Harrington, 562 U.S. at 102, 131 S.Ct. 770. Here, the Majority did not do this. To be sure, it cursorily cited to parts of the CCA’s opinion, but only to lay a foundation for its own analysis and counterarguments — namely, that (1) the prosecutor’s misstatement went to the core of Deck’s defense, and (2) the jury’s question reflected confusion on that very issue. See Op. at 979-84. For example, the Majority recognized that the CCA “emphasized that only minimal physical contact was required to support a conviction for a lewd act.” Id. at 984. It also acknowledged that “Deck conceded that although he wanted to meet in public for their first date and not engage in sexual activity, [he said,] ‘I probably won’t be able to keep my hands off of you.’ ” Id. at 984. But rather than asking whether any fairminded jurist could find the CCA’s arguments based on such evidence persuasive, the Majority stated, “[o]n the other hand, the same evidence suggests the jury could have based its verdict on the prosecutor’s alternative theory that Deck intended to commit lewd acts on Amy not on the night of the meeting, but on some unspecified future date.” Id. at 984 (emphases added). The Majority therefore asked the wrong question: Whether the evidence “could be” susceptible to another determination is irrelevant where there has been a prior state court determination. See Harrington, 562 U.S. at 101, 131 S.Ct. 770. Rather, the only proper question on collateral review of a merits determination is whether any fair-minded jurist could agree with the state court. Id. at 102, 131 S.Ct. 770. When the state court’s reasons for finding harmlessness constitute a reasonable basis for the state court’s determination, a federal court’s review is accomplished: It must deny habeas relief. Here, the Deck Majority concluded that, because it thought that Deck’s trial was “fundamentally unfair,” no fairminded jurist could disagree. Op. at 985, 985-86. This cursory citation to Chapman/AEDPA’s “fairminded jurist” test does not redeem the Majority’s analysis, which is bereft of any AEDPA deference, nor its adoption of a plainly erroneous legal standard. In sum, the Deck Majority’s analysis is, unfortunately, precisely backwards. That does not satisfy AEDPA. D. The Majority’s disregard for AEDPA is further belied by its failure to cite a single Supreme Court case that actually found constitutional error based on prosecutorial misconduct, particularly where the jury was properly instructed. See Op. at 977-79. Indeed, every Supreme Court case involving prosecutorial misconduct cited by the Majority found such error harmless and denied habeas relief. See Boyde v. California, 494 U.S. 370, 386, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (denying ha-beas relief based on prosecutorial commentary that might mislead jury to adopt an improperly narrow interpretation of jury instructions), Darden v. Wainwright, 477 U.S. 168, 181-82, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (denying habeas relief and holding that numerous “undoubtedly” “improper” comments by the prosecutor were not enough to deprive the petitioner of a fair trial); Weeks v. Angelone, 528 U.S. 225, 227, 237, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (denying habeas relief where, instead of answering the jury’s question, the judge directed the jury to a constitutionally sufficient instruction, thus arguably failing to resolve the jury’s confusion). It is a weak reed indeed to rely on precedents that found harmless error in analogous circumstances to urge they can render the same finding by the CCA “objectively unreasonable” — such that “no fairminded jurist could agree” with it. Ultimately, the Deck Majority appears to rely solely on the general principle that a prosecutor’s misstatement could amount to a prejudicial constitutional violation if it “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (nonetheless finding that the prosecutor’s numerous “improper” statements did not meet this standard). And while the Majority is correct that Darden provides the relevant law for purposes of AEDPA, see Op. at 977-78, the question under AEDPA is whether the prosecutor’s misstatement violated Deck’s due process rights under “any reasonable application of [Darden].” See Panetti v. Quarterman, 551 U.S. 930, 948, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). In other words, even assuming arguendo that the broad standard to be, applied here is “clearly established,” its application to the present facts certainly is not. See supra, n. 21. If anything, clearly established Supreme Court precedent supports the CCA’s application. For example, in denying habeas relief, Boyde explained that “arguments of counsel generally carry less weight with a jury than do instructions from the court.... [and] must be judged in the context in which they are made.” Boyde, 494 U.S. at 384-85, 110 S.Ct. 1190 (selection quoted by Deck Majority, Op. at 978-79). Here, the CCA noted the overwhelming focus of the prosecutor’s lengthy closing argument: that Deck did intend to “touch” Amy on the night of their date. See Deck, 2011 WL 2001825, at *12. The CCA reasoned that the prosecutor’s misstatement was an “isolated departure [from that theme] in a few stray words.” Id. Its finding that, in context, the prosecutor’s misstatement was harmless is consistent with Boyde’s holding and analysis. Id. Likewise, it is clearly established that “[a] jury is presumed to follow its instructions.” Weeks, 528 U.S. at 234, 120 S.Ct. 727 (selection also quoted by the Deck Majority). Here, it is undisputed that Deck’s jury was “properly instructed” on the relevant principles of attempt after the prosecutor’s misstatement regarding the law of attempt. The judge also instructed the jury to follow these instructions over “conflietfing] statements of counsel.” True, the instructions did not expressly state that the jury must find an intent to touch Amy on the first night. But both Boyde and Weeks, held that a jury is presumed to have understood and correctly applied jury instructions that are “not con-cededly erroneous” — even if the instructions are not “pin point.” See, e.g., Boyde, 494 U.S. at 380, 384-86, 110 S.Ct. 1190 (in a capital proceeding, the Eighth Amendment is not violated absent a “reasonable likelihood” that the jury incorrectly interpreted its jury instructions as precluding consideration of mitigating evidence). In Weeks, for example, the jury submitted a question about whether it had a “duty,” or merely discretion, to impose the death penalty. Weeks, 528 U.S. at 229, 120 S.Ct. 727. Instead of answering the jury’s question directly, the judge pointed the jury to “instruction # 2.” Id. The Supreme Court found that, because the jury instructions were accurate and “constitutionally adequate,” the jury’s failure to seek additional clarification — even on an issue as important as whether or not to apply the death penalty — must be presumed to indicate that the jury understood and properly applied its instructions. Id. at 234, 120 S.Ct. 727 (“To presume otherwise would require reversal every time a jury inquires about a matter of constitutional significance, regardless of the judge’s answer.”). The state court’s finding of no constitutional error was therefore not an unreasonable application of clearly established law under section 2254(d). Id. at 237, 120 S.Ct. 727. Similarly in Deck’s case, the jury received accurate jury instructions. It is a reasonable reading of Weeks to hold that the failure of Deck’s newly constituted jury to re-submit its question regarding the immediacy element of attempt compels, or at least supports, a presumption that the jury understood its instructions and no longer needed clarification. See id. at 234, 120 S.Ct. 727 (reasoning that it is enough that “[h]ad the jury desired further information,” it “probably” would have submitted another question). In fact, the application of Weeks’ presumption is even more clear here, because the trial court actually invited Deck’s jury to resubmit its question, see supra, n. 10, yet the jury still failed to do so. In any event, the CCA could reasonably have concluded that the evidence against Deck was so strong that the jury would have found him guilty irrespective of the judge’s answer to its question. Darden itself emphasized that strong evidence against a petitioner “reduce[s] the likelihood that [a] jury’s decision was influenced by [a prosecutor’s improper] argument.” Darden, 477 U.S. at 182, 106 S.Ct. 2464. Here, the CCA found “ample evidence ... to support the jury’s finding [that] Deck attempted to commit a lewd act with Amy’ ” on the night in question. Deck referred to Amy as “hot,” a “hottie,” “sexy,” and “slutty”; he told Amy he wanted to date her, to kiss her, to perform oral sex' on her, and to do other sex acts that “boyfriends and girlfriends” do. Deck’s stated intention to “see what’s on TV” on the first date, coupled with his arrival after dark with a camera, strongly supports an inference that Deck intended to go to Amy’s apartment after he had confirmed that she was “real.” Deck’s supposedly exculpatory statements that he was “sick” and that he was “just bringing [Amy] pie” do not compel a contrary conclusion. Deck had previously used “pie” as an allusion to oral sex. A fairminded juror could readily conclude that Deck — being a law enforcement officer — used the euphemism in setting up his first meeting with Amy to “create a defense” for himself (as the prosecutor argued) until he had confirmed that Amy was real. Likewise, a fairminded juror could be highly skeptical of Deck’s claim that he was “ill,” given Deck’s ensuing decision to drive 45 minutes to Amy’s house ostensibly just to “say hi.” In sum, the CCA’s analysis was a patently reasonable application of clearly established Supreme Court precedent. Had the Majority applied Ayala and AEDPA properly, it could not have reached its result. Of course, were it reviewing these facts de novo, the panel might disagree with the CCA. In fact, the Deck Majority makes a good argument in that regard. But that is not the question on collateral, habeas review. As Judge M. Smith argues persuasively in his dissent, “an unreasonable application of federal law is different from an incorrect application of federal law” and that “the majority commits the same error the Supreme Court has criticized our court for making time after time by ‘collapsing th[is] distinction....’” Deck, 768 F.3d at 1031 (quoting Nevada v. Jackson, — U.S. —, 133 S.Ct. 1990, 1994, 186 L.Ed.2d 62 (2013)). It is this kind of disregard for binding Supreme Court precedent, Judge M. Smith explained in dissent, that has led the Supreme Court “in its four most recent terms ... [to] reverse[ ] us fourteen times in cases involving our application of AEDPA ... ten of which reversals have been unanimous.” Id. As shown above, none of the precedents cited by the Deck Majority compel a finding that the prosecutor’s misstatement was prejudicial under “any reasonable application” of Darden’s very general standard, see Panetti, 551 U.S. at 948, 953, 127 S.Ct. 2842, and all in fact support the CCA’s analysis. To reach a contrary conclusion, the Deck Majority adopts an analytical approach that the Supreme Court this year expressly rejected — adopting Justice Sotomayor’s dissent to hold that a federal court’s de novo finding of “actual prejudice” “necessarily” renders the state’s court’s contrary determination “unreasonable.” IV. The Deck Majority’s analysis cannot be squared with Davis v. Ayala, — U.S. —, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015). Because this Court’s failure to correct the Majority’s error through rehearing en banc perpetuates both an intra-circuit and intercircuit split, I respectfully dissent from denial of re-hearing en banc. CHRISTEN, Circuit Judge: 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 organization called Perverted Justice “on a sting operation to identify and arrest adults using the Internet to meet minors for sex.” Id. at *1. “After online conversations confirmed the adult’s intent, ... decoys arranged a meeting between the adult and fictitious minor at an apartment,” where the adult would be arrested. Id. Deck, who was then a lieutenant with the California Highway Patrol, began chatting online with a fictitious girl named “Amy.” Id. Amy represented to Deck that she was 13 years old, and her online profile included a photograph of an actual 13-year-old girl. Id. The two exchanged sexually suggestive messages, and Deck expressed an interest in taking photographs of Amy. Id. at *1-2. They arranged a meeting for an upcoming Saturday. Id. at *2. Amy asked Deck to come to her apartment, but Deck said he was “not comfortable meeting at your house” and proposed meeting in public. Id. “Deck also suggested that after their first date, if their chemistry remained as good as it seemed during their chats, they would arrange another date and engage in some of the sexual activity they discussed online.” Id. But he said: “ T probably won’t be able to keep my hands off of you.’ ” Id. On the day of their planned meeting, Deck claimed not to be feeling well but “promised to stop by [Amy’s] apartment for their first meeting,” at a time when Amy’s mother was not around. Id. at *3. In a subsequent online chat, he asked Amy to meet him “in a public place close to her apartment.” Id. He said he would be bringing her a piece of pie. Id. “Before signing off his computer, Deck added, ‘Remember I am sick so no kissing or nothing. Just bringing you your pie.’ ” Id. The CCA opinion described what happened next: Deck made the 45. mile drive from his residence to “Amy’s” apartment, arriving around 8:35 p.m. He parked in the apartment complex’s parking lot and walked' to the park for his rendezvous with “Amy.” Spotting a young female sitting at a picnic table in the park, Deck approached and asked whether she was “Amy.” The female responded by asking whether he was “Steve.” When Deck acknowledged his identity, the. police arrested him. Investigators searched Deck and found a digital camera and the piece of pie he promised to bring “Amy.” They also searched Deck’s car, where they found a MapQuest printout with directions to'“Amy’s” apartment and six packaged condoms past the listed expiration date. Id. Procedural History Deck was charged with attempt to commit a lewd or lascivious act (“lewd act”) upon a child. The CCA explained that, under California law: An attempt to commit a lewd act upon a child requires both an intent to arouse, appeal to, or gratify “the lust, passions, or sexual desires of [the defendant] or the child” “and ... a direct if possibly ineffectual step toward that goal.... ” For an attempt, the overt act must go beyond mere preparation and show that the [defendant] is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes, nor need it satisfy any element of the crime. However, as we have explained, “[b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.” “[I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made.” Id. at *7 (alterations in original) (citations omitted). Deck was convicted after a jury trial and sentenced to 365 days in county jail and five years formal probation. i One of Deck’s arguments to the CCA was that the prosecutor’s rebuttal closing argument misstated the law of attempt. Id. at *11. The CCA agreed, but held that the prosecutor’s “lone misstatement” of the law was rendered harmless by the trial court’s correct jury instructions. Id. Because the issue in this appeal is highly fact-specific, it is worth providing the CCA’s description and analysis of the prosecutor’s error in (close to) its entirety. The CCA first summarized the prosecutor’s statements as follows: On rebuttal, the prosecutor agreed with defense counsel that “I need to prove to you that [Deck] took a direct, but ineffectual step on or about February 18, 2006.” Deck focuses on a handful of ensuing comments as the basis for his misconduct claim that the prosecutor misstated the law of attempt. Specifically, Deck zeroes in on four sentences, italicizing a few of the prosecutor’s words in just two sentences of his closing argument, as follows: “I don’t have to prove to you that he was going to commit a lewd act on or about February 18th, 2006.... [¶] But even if his intent was just to meet her, get to know her, break the ice and follow the next day, the next week, maybe [in] two weekends when mom’s gone, again, as long as he took a direct, but ineffectual step towards that goal, that is all I need. [¶] I don’t need to prove to you that he was going to commit a lewd act on that day, just some point in the future direct and ineffectual step that day [sic: garbled diction].... He was on that day going to commit a lewd act with Amy.” (Italics added.) Id. at *11 (alterations in original) (citations omitted). The CCA next discussed whether the prosecutor’s statements were erroneous: In this excerpt isolated by defendant, the prosecutor’s first and final sentences present no problem. First, the prosecutor did not have to prove Deck “was going to commit” a lewd act with “Amy” in the sense that he would be successful; after all, lack of success defines an attempt. As the prosecutor explained just a few sentences later: “I don’t have to prove to you that he was going to actually succeed in committing the lewd act on that day.” And, in defendant’s excerpt, the prosecutor’s final sentence properly focused the jury’s attention on the day he met with “Amy,” emphasizing, “He was on that day going to commit a lewd act with Amy.” (Italics added.) This was the prosecutor’s repeated emphasis, arguing several times, for example, that defendant was “[d]efinitely going down there to engage in a lewd act, lewd contact with Amy”; “If Amy was a real 13-year-old girl, [in] the defendant’s own[] words, he wouldn’t be able to keep his hands off of her”; “He was on that day going to commit a lewd act with Amy”; and characterizing the idea that Deck would “just see her that day” as “baloney.” . Id.'(alterations in original). The CCA concluded that the prosecutor misstated the law: “Deck argues the prosecutor in his closing argument misstated the law of attempt. He did.... ” Id. The CCA explained: The prosecutor erred ... by suggesting an intent to engage in a lewd act at “just some point in the future” or “the next week, maybe [in] two weekends” sufficed. As our Supreme Court has explained, to establish an attempt the defendant’s overt act “must go beyond mere preparation and show that the [defendant] is putting his or her plan into action.” Indeed, the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. Here, pushing defendant’s intent to commit a lewd act on “Amy” to, potentially, “next week” or in “two weekends” or to “just some point in the future” negates the essential element necessary to constitute an attempt.... The merely speculative possibility of a potential future rendezvous is inconsistent with the inevitable nature of an attempt, where the offense will be accomplished “ ‘unless frustrated by extraneous circumstances’ ” or “ ‘absent an intervening force.’ ” Id. at *12 (alterations in original) (citations omitted).' Having decided that the prosecutor’s misstatements of California law negated an essential element of attempt, the CCA concluded that the misstatements were not prejudicial to Deck: [T]he prosecutor’s errant gloss on the law of attempt does not require reversal. First, it was an isolated departure in a few stray words and not the focus of the prosecutor’s argument, which properly remained on Deck’s clear intent, coupled with the steps he took, to commit a lewd act with the victim on the weekend he actually met with her. More importantly, the trial court properly instructed the jury on the relevant principles. The court instructed the jury the necessary “direct step” to constitute an attempt “requires more than merely planning or preparing to commit” the target offense, but instead “goes beyond planning or preparation” with a “direct movement towards the commission of the crime after preparations are made.” Id. (citation omitted). The CCA reasoned that, based solely on these jury instructions: [T]he jury knew it was not enough to plan or prepare to commit a lewd act at a potential later rendezvous. Rather, the attempt must consist of “an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.” We presume the jury followed these instructions. Id. The CCA recognized that Deck’s argument relied heavily on the jury’s request for clarification of the law relating to the prosecutor’s closing rebuttal argument: [A]bout an hour into deliberations, the jury sent the trial court a note asking it to “ ‘[c]larify [the] law as it relates to whether defendant did not have to do anything that day, only attempted [sic] to put it into play.’ ” The trial court excused the jury an hour early for the weekend recess to discuss the matter with counsel, and then excused the jury after only an hour of deliberation on Monday because defense counsel became ill. At the outset of deliberations on Tuesday, the trial court seated an alternate juror to replace a juror who had called in sick. The trial court had discussed with counsel how to respond to Friday’s jury note but, given deliberations had to begin anew with the substitute juror, the trial court instructed the jury as follows: “I know that there was a previous question sent out by the foreperson, Juror # 9. In light of the fact I have just given you this instruction that you have to start all over again, disregard past deliberations, you need to follow that instruction. If you have any further questions that you want answered once you start deliberating with the jury, send that out in the question format and we will answer it for you.” Id. at *13. Finally, the CCA reasoned that the jury’s failure to resubmit its question (or a similar one) after restarting deliberations demonstrated the jury was not misled by the prosecutor’s misstatements: The jury, presumably having taken a fresh look — or a first look in the case of the new juror — at the trial court’s instructions, had no further questions for the trial court and reached a verdict. Deck does not dispute the trial court’s instructions concerning attempt correctly stated the law. We must presume the jury understood and followed those instructions. Consequently, there is no basis to conclude the jury disregarded the trial court’s instructions and instead fixated on an isolated comment by the prosecutor. Id. The CCA’s version of events contains most of the details relevant to this appeal, but three additional points are helpful. First, Deck’s trial defense was that Deck, a California Highway Patrol Officer, approached his initial meeting with Amy cautiously and lacked the mental intent to engage in a lewd act “on that date.” Defense counsel emphasized this point heavily during his closing argument. The prosecutor recognized the importance of this defense argument and told the judge that the purpose of his rebuttal was to dispute it. Second, though the CCA described the prosecutor’s misstatements as an “isolated departure in a few stray words,” there was another important misstatement by the prosecutor during rebuttal: “Even if you buy this baloney just see her that day, not touching her, stay five feet away from her, follow up the next day if they got along, then commit the lewd act, that is sufficient under the law for the defendant to be guilty.” Third, the trial court never instructed the jury that, in order to convict, it was required to find beyond a reasonable doubt that Deck had moved beyond preparation on the night he was arrested and would have committed a lewd act that night, but for his arrest. Deck filed a petition for review to the California Supreme Court, which denied review. Deck then filed a petition in federal court for writ of habeas corpus pursuant to 28 U.S.C. § 2254. A federal magistrate judge recommended dismissal of the petition with prejudice, and the district court adopted the magistrate’s findings and recommendations. Deck appeals. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 2253. We review the district court’s denial of Deck’s § 2254 habeas corpus petition de novo. Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir.2008). Looking through the district court’s decision, we examine the last reasoned state-court decision, which in this case is the opinion of the CCA. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). The CCA decided that “pushing defendant’s intent to commit a lewd act on ‘Amy’ to, potentially, ‘next week’ or in ‘two weekends’ or ‘just some point in the future’ negate[d] the essential element necessary to constitute an attempt.” Deck, 2011 WL 2001825, at *12. In other words, the CCA established that a trial error occurred through the prosecutor’s misstatement of California law. See Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir.2012) (p