Jack Norman Rukes v. Martin Frink; Attorney General of the State of Montana

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK NORMAN RUKES,
Defendant - Appellee,
v.
MARTIN FRINK; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Plaintiff - Appellant.
No. 14-35492
D.C. No. 9:13-cv-116-M-JCL
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Argued and Submitted July 6, 2015
Portland, Oregon
Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.
Montana appeals the district court’s May 23 and September 29, 2014 orders
granting Rukes’s petition for habeas relief. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253. We reverse and remand.
FILED
AUG 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Montana agrees that the comment made by the bailiff in the presence of the
jury as they were about to commence deliberations constituted error and that the
state court’s decision concerning the issue was unreasonable. See 28 U.S.C. §
2254(d). Therefore, we must solely determine whether the district court erred by
concluding that the error was not harmless. On habeas review, when considering
whether an improper comment made to the jury was harmless, the court applies the
standard from Brecht v. Abrahamson, 507 U.S. 619 (1993).
Rukes argues that the mere presence of a plain-clothed guard sitting behind
Rukes in the courtroom was prejudicial and that the surprise that the jurors must
have experienced when they discovered (right before entering the jury room to
deliberate) that Rukes was in fact being guarded, prejudiced the jury. However, to
support a finding that the error was harmful, actual prejudice must be shown.
Davis v. Ayala, 135 S. Ct. 2187, 2197-98 (2015). We note that the Supreme Court
handed down Davis nine months after the district court’s final order in this case.
Rukes offers no evidence that he was actually prejudiced by the bailiff’s
improper comment. As evidenced by its acquittal of Rukes on two of the four
charges, the jury engaged in meaningful deliberations. The jury was presented
with substantial evidence that Rukes had committed the charged offenses and made
a reasonable decision based on that evidence. Therefore, as there is a lack
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evidence of actual prejudice, we must conclude that the district court erred by
granting Rukes’s petition for habeas relief.
REVERSED and REMANDED.
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