NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RACARDO JACKSON, No. 21-15676
Petitioner-Appellee, D.C. No. 2:14-cv-02268-MCE-DB v.
KEN CLARK, Warden, MEMORANDUM*
Respondent-Appellant.
Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted November 16, 2022 San Francisco, California
Before: McKEOWN and SUNG, Circuit Judges, and SESSIONS,** District Judge. Dissent by Judge SUNG.
The government appeals from the district court’s order granting Racardo
Jackson’s 28 U.S.C. § 2254 petition for writ of habeas corpus. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we reverse.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. The district court erred by granting Jackson’s petition as to his prosecutorial
misconduct claim because, even assuming the prosecutor violated Jackson’s Fifth
Amendment right to silence under Doyle v. Ohio, 426 U.S. 610 (1976), any error
was harmless. “Doyle error does not entitle a petitioner to habeas relief unless the
error ‘had substantial and injurious effect or influence in determining the jury's
verdict.’” Hurd v. Terhune, 619 F.3d 1080, 1089–90 (9th Cir. 2010) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 622, 637–38 (1993)).
Here, “the judgment was not substantially swayed” by the prosecutor’s
comments because, at trial, there was significant other evidence that Jackson did
not shoot Troy Thompson in self-defense. See Kotteakos v. United States, 328
U.S. 750, 765 (1946). For example, trial testimony revealed that Jackson sought a
confrontation with Thompson twice, including leaving a female acquaintance’s
apartment over her protests to meet Thompson face-to-face right before the fatal
shooting. The same acquaintance—who was in her apartment while Jackson shot
Thompson outside and interacted with Jackson after the shooting—testified that
Jackson did not tell her he shot Thompson in self-defense or that Thompson
threatened him. Forensic evidence corroborated eye-witness testimony that
Jackson fired about five shots at Thompson then fired a final shot while “standing
over” him. The prosecutor also argued at trial that Jackson “acted like a guilty
man” by failing to call the police or an ambulance after the shooting and by
2 burying the gun he used. Finally, the full transcripts of Jackson’s police interviews
that the prosecutor used to comment on Jackson’s silence were admitted into
evidence at trial. The transcripts revealed that Jackson never referenced self-
defense in his interviews. Accordingly, the last reasoned decision of a state court,
in this case the California Court of Appeal, did not reach a conclusion that was
contrary to or that involved an unreasonable application of clearly established law
by holding that any Doyle error was harmless. See Godoy v. Spearman, 861 F.3d
956, 962 (9th Cir. 2017) (en banc).
The district court also erred by granting Jackson’s petition as to his
ineffective assistance of counsel claim. Because there is no state court ruling on
the merits of the ineffective assistance of counsel claim, we review “the district
court’s decision de novo without the deference usually accorded state courts under
28 U.S.C. § 2254(d)(1).” Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).
Although Jackson’s trial counsel did not object to the prosecutor’s use of his
selective silence at trial, Jackson has not shown that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984). “Strickland specifically commands that a court ‘must indulge [the]
strong presumption’ that counsel ‘made all significant decisions in the exercise of
reasonable professional judgment,’” Cullen v. Pinholster, 563 U.S. 170, 196
3 (2011) (alteration in original) (quoting Strickland, 466 U.S. at 689–90), and it is
unclear that the trial court would have sustained an objection about the use of
Jackson’s silence such that the judgment would have been different. Jackson has
not overcome “Strickland’s high bar.” Lee v. United States, 137 S. Ct. 1958, 1967
(2017).
REVERSED.
4 Racardo Jackson v. Ken Clark, No. 21-15676 FILED JUL 21 2023 SUNG, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Petitioner Racardo Jackson challenges his conviction for second-degree murder of
Troy Thompson. In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court held that
when a prosecutor uses a defendant’s post-Miranda silence to impeach the defendant’s
statements at trial, the prosecutor violates due process. Id. at 611, 618-19. That is exactly
what the prosecutor did here. When the police arrested Jackson, they gave him a Miranda
warning, explaining, “You have the right to remain silent; Anything you say may be used
against you in court.” When the police asked Jackson to tell his “side of” the story,
Jackson refused to answer. Instead, he explained that he was afraid the police would twist
his words and use them against him. Jackson told his side of the story for the first time at
trial, testifying that he shot Thompson in self-defense. In violation of Jackson’s due
process rights, the prosecutor repeatedly used Jackson’s post-Miranda silence to impeach
his credibility, arguing that if Jackson truly shot Thompson in self-defense, he would
have told the police when they interrogated him.
The district court granted relief, concluding after careful analysis that the
prosecutor’s use of Jackson’s silence for impeachment purposes violated his due process
rights under Doyle and that the error was not harmless. The majority reverses because in
their view, “any Doyle error was harmless.” The majority’s harmless error analysis
ignores that Jackson’s defense turned on his credibility, which was substantially
diminished by the prosecutor’s repeated use of Jackson’s silence to impeach him. The
majority’s harmlessness analysis also relies on other evidence of Jackson’s guilt but
1 Racardo Jackson v. Ken Clark, No. 21-15676
ignores the evidence in the record that rebuts the prosecution’s case and corroborates
Jackson’s account of self-defense.
Under these circumstances, I, like the District Court, have “grave doubts about
whether the error affected the jury in a substantial way.” When a judge is “left in grave
doubt, the conviction cannot stand.” Kotteakos v. United States, 328 U.S. 750, 765
(1946); Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011). Consequently, I would
affirm the grant of habeas relief.
I. Doyle Violation
The prosecutor may not “impeach a defendant’s exculpatory story, told for the
first time at trial, by cross-examining the defendant about his failure to have told the story
after receiving Miranda warnings at the time of his arrest.” Doyle, 426 U.S. at 611
(emphasis added). As noted above, that’s exactly what the prosecutor did here.
The police interrogated Jackson twice after arresting him and issuing Miranda
warnings. Detective Cohen, Jackson’s primary interrogator, repeatedly tried to persuade
Jackson to tell his “side” of the story. Although Jackson did not stand mute, he never told
the police his side of the story or any details about what occurred. Instead, Jackson
explained why he did not want to tell his side of the story to the police. For example,
when Detective Cohen told Jackson, “So if you want to set the record straight go ahead,”
Jackson responded, “But that’s going to be like . . . I mean can we get – I don’t know
about – I know you the police.” And when Detective Cohen asked, “And you keep it to
yourself how does that help me to a full investigation? How does that help you ’cause
2 Racardo Jackson v. Ken Clark, No. 21-15676
you – it seems to me your feeling your voice hasn’t been heard in this?” Jackson
responded, “Yeah, but now I’m not, I mean exactly what you’re saying. . . . Now if I do
it’s like y’all can just use that against me at the same time without nobody like standing
up for me.” And, when Detective Cohen persisted, telling Jackson. “but if you have
information that you think I need to know like I said I can’t get it from looking at you,”
Jackson again explained why he did not want to answer: “I’m saying like I don’t want to
you know I don’t have a lawyer right now” and “I don’t know how much to go about
saying. . . . it may help me, it may hurt me, you know what I'm saying but I don't know. .
.”
At trial, Jackson told his side of the story, testifying that Troy Thompson tried to
shoot him and he shot Thompson in self-defense. The prosecutor repeatedly cross-
examined Jackson about the fact that he had not told that exculpatory story to the police
during his post-Miranda interrogations. For example, the prosecutor asked Jackson, “At
no time did you ever say: Troy Thompson tried to kill me, and I shot him in self-defense,
right?” And then, during closing argument and rebuttal, the prosecutor repeatedly argued
that the jury should not believe Jackson because he never told the police that he had acted
in self-defense. For example, the prosecutor argued: “if he lawfully killed Mr. Thompson,
don’t you think that would have been the first thing out of his mouth when he starts
talking to Detective Cohen, all right[?] But he never says that. And you know why he
doesn’t say that, it’s as simple as this: Because it didn't happen that way.”
3 Racardo Jackson v. Ken Clark, No. 21-15676
The constitutional rule at issue—that the prosecutor violates due process by using
the defendant’s post-Miranda silence for impeachment purposes—is clearly established.
Doyle, 426 U.S. at 611. As the Court explained, when a defendant is informed that he
may “remain silent” and “that anything he says may be used against him,” “it does not
comport with due process to permit the prosecution during the trial to call attention to
[the defendant’s] silence at the time of arrest and to insist that because he did not speak
about the facts of the case at that time, as he was told he need not do, an unfavorable
inference may be drawn as to the truth of his trial testimony.” Id. at 619 (quoting United
States v. Hale, 422 U.S. 171, 182-183 (1975) (White, J., concurring). “In such
circumstances, it would be fundamentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to impeach an explanation subsequently
offered at trial.” Id.
Yet, the California Court of Appeal, in the last reasoned state court decision,
concluded there was no Doyle violation because Jackson “did not remain silent.” People
v. Jackson, No. A132659, 2013 WL 3039798, at *23 (Cal. Ct. App. June 19, 2013).
Specifically, the Court of Appeal explained that, in its view, “[t]he prosecution was not
commending [sic] on defendant's silence” but instead merely “not[ing] that in all of
defendant’s comments to the detective and others he never claimed that he acted in self-
defense.” Id. That is, the state court concluded that the prosecutor could comment on
Jackson’s failure to have told his exculpatory story to the police, just because Jackson
4 Racardo Jackson v. Ken Clark, No. 21-15676
was not literally silent during the interrogation. That conclusion involved an
unreasonable application of clearly established federal law.
Doyle and subsequent cases make clear that a defendant does not need to remain
literally silent to exercise his right to remain silent and bar the prosecutor from
commenting on his “failure to have told the exculpatory story after receiving Miranda
warnings at the time of his arrest.” Doyle, 426 U.S. at 611. To begin, Doyle, like Jackson,
was not literally silent when the police interrogated him. Id. at 614 n.5. In response to a
police question, Doyle said, “I don’t know what you are talking about” or “What’s this all
about?” Id. 1 Yet, the Court still characterized Doyle’s “failure to have told the police” his
exculpatory story as “post-arrest silence.” Id. at 611. See also Anderson v. Charles, 447
U.S. 404, 407 n.2 (1980) (per curiam) (explaining that, in Doyle, one defendant did speak
to police but the Court still analyzed the due process question “as if both defendants had
remained silent”). 2 Thus, even in Doyle, the Court used the term “silence” figuratively to
refer to the defendant’s failure to tell an exculpatory story, not literally to refer to
1 The dissent in Doyle also pointed out that the defendants did not “st[and] mute,” and that “Doyle did not even remain silent.” Doyle, 426 U.S. at 628-29 (Stevens, J., dissenting). 2 In Anderson, the Court explained that the prosecution does not violate Doyle by impeaching a defendant based on a prior inconsistent statement, as opposed to an omission or “silence.” 447 U.S. at 407 n.2 (finding no Doyle violation because the defendant had told the police that he stole a car from the street but testified that he stole a car from a parking lot). That is not an issue in this case, because Jackson did not make a prior inconsistent statement. 5 Racardo Jackson v. Ken Clark, No. 21-15676
muteness. Under Doyle, the fact that Jackson “never claimed that he acted in self-
defense” during the police interrogation means that he was “silent” about his exculpatory
story, and the prosecutor could not comment on that silence to impeach him. The fact that
Jackson did not remain literally silent makes no difference.
This circuit’s cases confirm that “post-Miranda silence” under Doyle does not
mean literal silence. For example, in United States v. Bushyhead, 270 F.3d 905, 913 (9th
Cir. 2001) we explained, “[w]ith respect to post-Miranda warnings ‘silence,’ . . . silence
does not mean only muteness; it includes the statement of a desire to remain silent, as
well as of a desire to remain silent until an attorney has been consulted. Id. (quoting
Wainwright v. Greenfield, 474 U.S. 284, 294 n.13 (1985)). 3
A defendant may invoke their right to remain silent by providing “explanatory
refusals” to answer the police’s questions, as Jackson did here. Hurd v. Terhune, 619
F.3d 1080, 1089 (9th Cir. 2010). In Hurd, we held that the defendant invoked his right to
silence even though he “offered explanations instead of simply saying ‘no.’” Id. at 1088-
89 (noting that Hurd responded to the interrogating officers’ requests that he perform a
3 In United States v. Bushyhead, we found that the admission of defendant’s statement “I have nothing to say, I'm going to get the death penalty anyway” impermissibly infringed on his constitutional right to remain silent, rejecting the government’s argument that Bushyhead “was not silent, but rather voluntarily chose to talk to the agent.” Bushyhead, 270 F.3d at 912, 913. We distinguished Bushyhead’s case from Rhode Island v. Innis, 446 U.S. 291 (1980) by noting that, unlike in Innis where the defendant interrupted officers while being transported to the police station post-arrest to tell them about the location of a missing weapon, “Bushyhead’s statement was not an unsolicited confession but the invocation of silence itself.” Id. 6 Racardo Jackson v. Ken Clark, No. 21-15676
demonstration “by saying, among other things, ‘I don't want to do that,’ ‘No,’ ‘I can't,’
and ‘I don't want to act it out because that—it's not that clear’”). Indeed, we held that
Hurd was “silent” when he refused to perform a demonstration—and that the prosecutor
violated Doyle by commenting on that silence—even though Hurd had consented to the
police interrogation without an attorney present and recounted his version of the facts. Id.
at 1084, 1086-87. We emphasized that “the right to silence is not an all or nothing
proposition” and “[a] suspect may remain selectively silent by answering some questions
and then refusing to answer others without taking the risk that his silence may be used
against him at trial.” Id. at 1087.
Jackson sufficiently invoked his right to silence to preclude the prosecutor from
commenting on his silence under Doyle, even if his invocation “f[ell] short of the
unambiguous declaration required to invoke the right to counsel . . . or the right to cut off
questioning.” United States v. Garcia-Morales, 942 F.3d 474, 476 (9th Cir. 2019). “Even
in non-invocation cases . . . mere omissions are not enough to justify cross-examination
or argument regarding what was not said at the time of arrest.” United States v. Caruto,
532 F.3d 822, 831 (9th Cir. 2008) (distinguishing omissions (which are protected under
Doyle) from inconsistencies (which are not protected)). 4
4 Although these cases make clear that Jackson did not need to invoke his right to silence unambiguously to preclude the prosecutor from commenting on his silence, I note that Jackson’s refusals to tell his exculpatory story were objectively unambiguous, and
7 Racardo Jackson v. Ken Clark, No. 21-15676
Thus, under Doyle, Jackson sufficiently invoked his right to remain silent by
refusing to tell the police his exculpatory story, and the prosecutor violated Jackson’s
Due Process rights by impeaching him based on his post-Miranda silence. Further, here,
as in Hurd, “the California Court of Appeal incorrectly and unreasonably applied clearly
established law” by concluding that the prosecutor’s comments on Jackson’s refusal to
tell police his exculpatory story was not Doyle error just because Jackson was not literally
silent. 619 F.3d at 1088-89.
A. Prejudice
“Doyle error does not entitle a petitioner to habeas relief unless the error ‘had
substantial and injurious effect or influence in determining the jury's verdict.’” Hurd, 619
F.3d at 1089–90 (quoting Brecht v. Abrahamson, 507 U.S. 619, 622, 637–38 (1993),
quoting Kotteakos, 328 U.S. at 776). “When the prosecutor’s impermissible argument
comments on a defendant’s post-Miranda silence, the court attempts to determine not
‘whether the jury would have decided the same way even in the absence of the error,’ but
‘whether the error influenced the jury.’” Hurd, 619 F.3d at 1090. “In making this
determination, the court considers (1) the extent of [the] comments ..., (2) whether an
inference of guilt from silence was stressed to the jury, and (3) the extent of other
the interrogating officer’s repeated attempts to convince Jackson to tell his side of the story show that the officer “subjectively understood [Jackson’s] responses as unambiguous refusals” to answer. Cf. Hurd, 619 F.3d at 1089. 8 Racardo Jackson v. Ken Clark, No. 21-15676
evidence suggesting [the] defendant's guilt.” Id. (quoting United States v. Velarde Gomez,
269 F.3d 1023, 1034–35 (9th Cir.2001) (en banc)).
In this case, the district court conducted a detailed analysis of the record and found
that Jackson’s “credibility was extremely important to his defense,” and that “[t]he
prosecution did far more than mention [Jackson’s] refusal to tell Cohen he acted in self-
defense. Rather, the prosecutor focused on that fact and stressed that it showed [Jackson]
was not credible.”
I agree. Jackson’s “testimony was the key to his claim of self-defense” and the
prosecution used Jackson’s post-Miranda silence to impeach him. “[T]he record shows
that a primary focus of the prosecutor’s comments and questioning on the issue of
petitioner’s silence focused on petitioner’s failure to tell [police] that he acted in self-
defense.” Indeed, “[t]he prosecutor asked petitioner numerous questions on cross-
examination about the fact he never told [police] the victim had threatened him, never
told [police] he shot Thompson in self-defense, and never told [police] his side of the
story.”
Unlike in other cases where courts have found that Doyle error was harmless, the
prosecutor in this case did not simply make “infrequent” references to Jackson’s post-
Miranda silence or comments that were “merely cumulative” extensions of other
“permissible references.” Brecht, 507 U.S. at 622, 637–38. Rather, in this case, as in
Hurd, the prosecutor’s comments on Jackson’s silence “were extensive and stressed an
inference of guilt to the jury.” 619 F.3d at 1090.
9 Racardo Jackson v. Ken Clark, No. 21-15676
The prosecutor repeatedly cross-examined Jackson on his refusal to tell police his
exculpatory story, asking at least nine times various iterations of the same question: “You
did not say to Detective Cohen that . . . Thompson tried to kill you, right?” (Her many
iterations included: “At no point did you ever tell [the detective] that Troy Thompson
tried to shoot you or tried to kill you and that you had to kill him in self-defense, right?”;
“You didn’t tell [the detective] your side of the story, right?”; “At no time during the
course of this conversation, did you ever mention self-defense to Detective Cohen,
right?”; “You’ve never mentioned self-defense during these interviews, correct?”; “[Y]ou
never once mentioned the words self-defense in that interview, right?”)
The prosecutor also specifically emphasized Jackson’s silence during closing
argument and rebuttal, repeatedly asserting that his silence during interrogation must
mean he made up his exculpatory story for trial. For example, the prosecutor asked the
jury: “if he lawfully killed Mr. Thompson, don’t you think that would have been the first
thing out of his mouth when he starts talking to Detective Cohen, all right [?] But he
never says that. And you know why he doesn’t say that, it’s as simple as this: Because it
didn’t happen that way.”
The prosecutor told the jury that they could consider what Jackson told Detective
Cohen, and then painted the following picture:
“Detective Cohen is about as likable a guy as you can get. This is a guy who’s talking with the defendant and wants to get his side of the story, right. Asks him twelve ways to Sunday what his side of the story is. And at any given time, this defendant could have told him, ‘This guy tried to kill me, so I shot him in self- defense.’ And you’ve got to think about it like this: If it was you and you had been wrongly accused of something and you knew you had acted lawful, wouldn’t the 10 Racardo Jackson v. Ken Clark, No. 21-15676
first thing out of your mouth be, ‘I did this in self-defense. This dude tried to kill me.’ *** ‘I did this in self-defense because this dude tried to kill me.; That would be the first thing out of your mouth, right. For whatever reason, maybe because he didn’t realize the cops were on to him or whatever, but in those ten days [between the shooting and the interrogation], he definitely hadn’t come up with a good enough story yet, because, well, you never heard it, right.” 5
On rebuttal, she drove the point home further: “I mean, for God’s sake, he didn’t
tell Detective Cohen. I mean, I heard his little story for the first time just like you.”
In sum, the prosecutor argued to the jury at least eight times that Jackson’s silence
during the interrogation must mean he was lying at trial. She repeatedly asserted that “the
first thing out of a reasonable person’s mouth” during interrogation would be “I did this
in self-defense,” and that Jackson's failure to say so meant that his account was
fabricated.
The government argues that the prosecutor’s commentary on Jackson’s silence
was harmless because recordings of Jackson’s interrogations were played for the jury and
5 The prosecutor’s closing argument was riddled with such statements: “The first thing out of his mouth [during the post-Miranda interview] wasn’t, ‘Oh my God, you know, this person tried to kill me, and I had to save myself.’ No.”; “At any given time, this defendant could have told [the detective], ‘this guy tried to kill me, so I shot him in self-defense.’”; “Wouldn't the first thing out of your mouth be, ‘I did this in self-defense. This dude tried to kill me.’”; “I did this in self-defense because this dude tried to kill me.’ That would have been the first thing out of your mouth, right.”; “A reasonable person, the first thing out of a reasonable person’s mouth is, ‘This dude tried to kill me, and I shot him in self-defense.’”; “if he shot Mr. Thompson in self-defense, I guarantee you . . . what he would be saying is, ‘[y]ou know what, he tried to kill me.”; [“if it was self- defense] don't you think that would have been the first thing out of his mouth when he starts talking to Detective Cohen . . .”) 11 Racardo Jackson v. Ken Clark, No. 21-15676
enabled them “to reach the same inferences the prosecutor urged.” But Jackson's
interrogation responses were entirely consistent with his self-defense claim—so if the
prosecutor had not repeatedly urged the jury to infer from Jackson’s silence that he was
lying and guilty, the jury may not have done so. Indeed, without the prosecutor’s spin,
the jury may well have found that Jackson’s interrogation responses corroborated his
testimony that he acted in self-defense. Jackson repeatedly told Detective Cohen that
things did not happen as the police believed and that he had a side of the story to tell.
And, without the prosecutor’s comments, the jury may also have accepted Jackson’s
explanatory refusals as the truth: that Jackson believed he had an exculpatory defense but
was afraid to tell it to Detective Cohen for fear that the police would somehow use
something he said against him (as Detective Cohen had just warned could happen) and
because he did not have a lawyer with him.
The majority concludes that the Doyle error was harmless because “there was
significant other evidence” that Jackson did not act in self-defense. But that evidence is
much weaker than the majority acknowledges. The majority states that “[f]orensic
evidence and eyewitness testimony corroborated” that Jackson fired a final shot while
“standing over” Thompson. But the forensic pathologist who performed Thompson’s
autopsy testified that he could not determine the position of Thompson’s body while he
was being shot, and that the evidence was also consistent with Jackson’s account of what
occurred: that Thompson was standing when he was shot, and that Jackson was backing
away while firing. The record also shows that the main eyewitness, a man in a
12 Racardo Jackson v. Ken Clark, No. 21-15676
neighboring apartment, may have been distracted during the shooting, and that his view
of the shooting was limited by the fact that it was night out and his apartment was dimly
lit. The eyewitness also gave different accounts on direct and cross-examination about
when exactly he turned to see the shooting. And a defense expert testified that the
location of the bullet casings was not inconsistent with any of the witnesses’ testimony—
including Jackson’s.
The majority also points to the testimony of Jackson’s acquaintance, who said that
Jackson did not mention being threatened or acting in self-defense when he left the scene.
But any inference of guilt that can be drawn from his mere failure to explain what
happened while fleeing the scene is weak. Further, other parts of the acquaintance’s
testimony supported Jackson’s account. For example, she testified that Thompson pointed
a gun at her a few months before the shooting. On the night of the shooting, Thompson
sent her multiple texts and called her multiple times, pounded on her door, and yelled at
her from the parking lot. She may have told Jackson that Thompson had a gun on the
night of the shooting, and though she did not recall seeing Thompson with one, both she
and Jackson testified that Thompson had his hand in his jacket pocket, and both were
apparently concerned he may have one. There also was other evidence that Thompson
had been violent with people in the past, and DNA evidence corroborated Jackson’s
testimony that he took Thompson’s gun.
The majority also notes that the prosecutor argued that Jackson “acted like a guilty
man” immediately after the shooting because Jackson fled and hid his gun and
13 Racardo Jackson v. Ken Clark, No. 21-15676
Thompson’s gun instead of calling the police. 6 But Jackson’s post-shooting conduct—
like his post-Miranda silence—was not inherently inconsistent with having shot someone
in self-defense. The prosecutor argued that the jury should infer guilt from that conduct,
but that is not the only inference that could be drawn. Because the forensic evidence was
inconclusive, and the eyewitness testimony was not unassailable, the prosecutor’s
repeated commentary on Jackson’s post-Miranda silence was not “immaterial in the face
of otherwise ‘overwhelming’ evidence of guilt.” Hurd, 619 F.3d at 1090 (quoting Brecht,
507 U.S. at 639) (emphasis added).
Ultimately, Jackson’s self-defense claim turned on his credibility. And “a
constitutional error that goes directly to the defendant’s credibility usually is not harmless
where the defendant’s theory of the case is plausible, even if it is not particularly
compelling.” Caruto, 532 F.3d at 832 (citing Velarde–Gomez, 269 F.3d at 1035)
(internal quotations omitted). Even considering the forensic evidence and eyewitness
testimony against Jackson, his exculpatory story of self-defense remains plausible.
Given that Jackson’s credibility was extremely important to his defense, it makes
sense that the prosecutor attacked his credibility as she did. The prosecutor clearly
believed that using Jackson’s post-Miranda silence to impeach him could substantially
influence the jury. Thus, even when I assume that the forensic evidence and eyewitness
6 The prosecutor’s argument—that Jackson would have called the police if he truly had acted in self-defense—ignores that Jackson may have had reasons to fear that the police would not believe him, or to fear the police in general. 14 Racardo Jackson v. Ken Clark, No. 21-15676
testimony are as strong as the majority suggests, I “cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the” prosecutor’s Doyle error. Kotteakos,
328 U.S. at 765. “[T]he uncertain judge should treat the error, not as if it were harmless,
but as if it affected the verdict (i.e., as if it had a ‘substantial and injurious effect or
influence in determining the jury's verdict’).” O'Neal v. McAninch, 513 U.S. 432, 435
(1995). Because, like the district court, I have grave doubt that the prosecutor’s Doyle
error was harmless, “the conviction cannot stand.” Kotteakos, 328 U.S. at 765.
II. Ineffective Assistance of Counsel
I also agree with the district court that Jackson established a Sixth Amendment
ineffective assistance of counsel claim because his trial attorney acted unreasonably by
failing to object when the prosecutor questioned him about his post-Miranda silence and
failing to renew her pretrial motion to bar the prosecutor from commenting on his silence
during closing arguments. Trial counsel knew the prosecutor’s use of post-Miranda
silence was unconstitutional under Doyle and the trial court had not rendered a final
ruling on the issue. Further, there is a “reasonable probability” that had counsel objected
and the prosecutor had been barred from repeatedly arguing to the jury that Jackson’s
failure to tell the police his exculpatory story meant he was making it up, “the factfinder
would have had a reasonable doubt respecting guilt.” Strickland v. Washington, 466 U.S.
668, 695 (1984).
I would affirm the grant of Jackson’s habeas petition.