*1 fair Hol to a trial.” right to [the] threat brook, 572, 106 S.Ct. 475 U.S. at BELMONTES, Jr., Fernando sum, I do decision not believe Petitioner-Appellant, “con Appeal Court of was v. ap to, an unreasonable
trary or involved of, Federal plication clearly established Warden, STOKES, for the Cali John law, Court as determined Quent at San fornia State Prison See 28 U.S.C. of the United States.” in,* Respondent-Appellee. 2254(d)(1). § court’s decision The state law, “contrary any such federal to” No. 01-99018. was “ ‘appl[y] the state court did because Appeals, United States Court law set governing contradicts the rule that ” Ninth Circuit. cases,’ did [Supreme nor Court] forth “ facts court set of ‘confront[ ] the state 24, 2005. Oct. from indistinguishable materially that are Supreme] [the decision Sacramento, Esq., Christopher Wing, H. at a result different arrive[] nevertheless CA, Esq., Valley, Multhaup, Eric Mill S. ” precedent.’ Lock [Supreme Court] CA, Petitioner-Appellant. for Andrade, 63, 73, 123 S.Ct. yer v. 538 U.S. Johnson, Anthony Esq., AGCA— Mark (2003) (quoting 155 L.Ed.2d General, Attorney of the Office California 405-06, Taylor, v. 529 U.S. Williams Justice, Sacramento, CA, Department (2000)). L.Ed.2d Respondent-Appellee. for decision does the state court’s Nor application” the “unreasonable abridge REINHARDT, O’SCANNLAIN, Before 2254(d)(1). § “The of 28 clause U.S.C. PAEZ, Judges. Circuit requires application’ clause ‘unreasonable be than court decision to more the state ORDER state court’s incorrect erroneous. clearly law must application of established CALLAHAN, Judge, whom with Circuit Lockyer, objectively
be
unreasonable.”
GOULD,
KLEINFELD,
O’SCANNLAIN,
(internal
al of en banc * Quentin. R.App. P. See Fed. at San predecessor, for his Prison Stokes is substituted John Brown, 43(c)(2). State Jill L. as Warden California
664 my is not My
case. dissent based on nore the Supreme guidance Court’s on in- my terpreting jury set adherence to the reasons forth in the instructions. year dissent from our decision last not to banc, v. take this case en Belmontes Wood (9th Cir.2004), trial, perceived 1079 chink in
ford, 359 F.3d
but on
majority
the
which the
panel
attempts
our
to follow
failure
Court’s
violation,
broaden into a constitutional
directions.
(k).2
language
jury
instruction factor
case,
opinion in
Following
prior
our
majority reluctantly
concedes
summarily granted
the Supreme
California,
v.
494
petition
of
for a writ
State
California’s
of
370, 383,
1190,
U.S.
108 L.Ed.2d
certiorari,
judgment,
our
vacated
and re-
(1990),
316
(k),
held
“at least
further
manded the case for
consideration
by
when
an
accompanied
appropriate clari-
— U.S.-,
in light of Brown v.
fying instruction,
was constitutional as
(2005).
1432,
125
the defendant II offense,” but “does culpability for *3 that encompass events considerations the question as to Any remaining Su- culpabili- to the defendant’s are unrelated antipathy to the preme Court’s Id. at 1134. ty.” mitigating majority’s distinction between culpability that addresses evidence to fails panel majority’s construction that has a mitigating evidence Supreme Court has held recognize that the is “forward-looking purpose” answered (k) is not an of factor language that arguments made and by a review of the chink, jury a sound but unconstitutional rejected in Indeed, majority’s inter- instruction. contrary is to the Su- Boyde pretation majority’s logic, As understand in reading Boyde Payton. circumstance, language—“[a]ny Payton, the Court wrote: In of the crime gravity which extenuates the a though legal it is not excuse of even Supreme Court was cor- The California read, crime,”—must following Boyde be identify Boyde starting as the rect to to authorize consideration a analysis. Boyde for involved point its background and character evidence that at is- challenge the same instruction to itself,” Pay not concern crime “does (k). here, to the factor As text sue ton, which “ex- 125 S.Ct. at but (k), that it does factor established plaints] why defendant committed the jury’s of ex- not limit the consideration Belmontes, at 414 F.3d crime.” solely to cir- tenuating circumstances claims that fac nonetheless the crime. See 494 U.S. cumstances of jury considering prohibits the from tor L.Ed.2d 316. 110 S.Ct. character evidence that background and rejected we holding, expressly so “proba a addresses defendant’s arguably suggestion precluded Id. ble future conduct.” pertain- considering from evidence background
ing of this disapproved circumstances character because those Payton by in hairsplitting type technical itself. did not concern crime following passage Boyde: quoting the (k), its that factor instead found such proper inquiry think the We terms, any directed consider there is reasonable case whether might other circumstance that excuse applied the has likelihood crime, including factors related to way pre- in a challenged instruction background and character. defendant’s of constitutional- vents consideration [Jjurors added). do ly It relevant evidence.... (emphasis at 1439 125 S.Ct. parsing booths solitary an affirmance isolation be that this is sit should noted to, subtle mean- of, Su- instructions for shades deferral way lawyers might. in the interpretation scope ing same preme Court’s (k). Thus, among interpreta- majority’s attempt Differences them out may of instructions be thrashed distinguish mitigating evidence tion between process, with com- in the deliberative that addresses understanding of instruc- to a defen- monsense allegedly goes that has taken contrary of all future tions probable dant’s behavior likely prevail at the trial over place postconvietion conduct.” Id. The Califor- Court, however, hairsplitting. technical nia Boyde, (quoting 125 S.Ct. at applying Boyde, ... consid- 1190). More- constitutionality ered the of the same over, very should be noted that it (k) instruction, ... held that panel majority sees as proceedings context of the there was pose suggesting that Belmontes would no Payton’s reasonable likelihood life, danger if sentenced to also future believed was required disre- juror culpability. bears on his gard mitigating evidence. just reasonably conclude that the evi- as The Supreme Court then denied certio- *4 Belmontes, following prior dence that his Thereafter, rari. Id. a district court convictions, and to found God rose granted Payton’s petition, habeas we first position two on a firefighting number crew grant affirmed the en banc a six to five savagely beating before an unarmed 19- vote, and on then remand the Su- year-old woman bar with dumbbell en- Court, again grant affirmed en his culpability, sug- hances rather than banc six to five vote. 1437-38. gests in might that the future he make a It is Supreme true that in Court positive society. contribution to finally reversing court, directing and penalty trial, phase Payton’s At the Payton’s petition, the denial of habeas on post-crime the defense concentrated his plied deferential standard the AED- behavior, in presenting that Nonetheless, PA. its comments concern- in prison, “he spent months (k) both ing interpretation of factor God, partic- made a to sincere commitment proceedings and the jury, before the reveal ipated prison study Bible classes and a that its remand this case is a directive prison ministry, calming had a and effect to this court approach to reconsider its to prisoners.” on S.Ct. at 1436. instructions at issue. however, prosecutor, closing in his argument jurors opinion “offered his that Court, address- (k) factor did not allow them to consider ing reasoning Boyde’s court’s that ra- anything that ‘after happened the [crime] tionale was not controlling because ” later.’ Id. at 1436. The pre-crime, concerned post-crime, miti- explained: Court evidence, gating wrote: The parties dispute do not now that this that, We do not think of Boyde, was a misstatement law. The defense Court acted un- objected to the comment and moved for reasonably declining distinguish be- mistrial, trial which the court denied. precrime tween postcrime and mitigat- court that admonished ing all, Boyde After evidence. held that prosecutor’s merely comments were ar- directed any consideration of gument. But explicitly it did not in- might circumstance that excuse the struct the the prosecutor’s that crime, is and it not unreasonable to be- terpretation was incorrect. lieve that postcrime character trans- Id. at 1437. Indeed, formation do could so. to ac- appeal, Payton
On direct argued cept that that such view evidence could misleading was and that the crime, because it occurred after incorrectly was led “to believe it could not one would have to reach the surprising consider the mitigating evidence conclusion that could remorse never But unless directed otherwise.” Id. or excuse a crime. serve to lessen (O’Scannlain, J., dissenting). only be remorse, by definition can that commission, the dissent is correct is Surely, experienced after crime’s jurors— unreasonable conclude less- commonly thought to something evidence, having heard the culpability. en or excuse they contrary to the instructions that re- perspective—holding This Id. at 1439. prosecutor, defense coun- ceived from could California they and the court—decided sel between reasonably distinguish decline mitigating evi- not consider Belmontes’ mitigating evi- post-crime pre-crime dence. majority’s contrary dence—is case in this between back- distinction III goes character evidence ground contrary position Finally, majority’s (but does concern premise squarely in a that was rooted crime) and such evidence rejected by dangerousness. In other goes to future majority argues words, Supreme Court’s determination ’’mitigation evidence was sim- *5 (k) miti- may post-crime cover by any reading natural ply not covered inherently rejects pan- gation evidence unadorned factor words (k) pre- majority’s position el Belmontes, 414 at F.3d 1134. struction.” pre- considering vented the reject- and argument was made The same crime evidence that pertain- Boyde concerning ed dangerousness. future addressed background char- ing to Furthermore, prosecutor acter, not related to the crime. 494 but that it should argued Similarly, at 1190. Payton’s mitigation evidence. consider reading” of would “natural Court, nonetheless, held evidence at post-crime mitigation cover the could rea- Thus, majority’s issue sonably prosecu- that “this line of conclude truism proach based on a semantical miti- put Payton’s did not argument torial repeatedly has beyond jury’s reach.” gating legal significance. to have no held Again impossible it majori- perspective with the reconcile IV ty’s insistence an post-AEDPA is not irrelevant Payton “might” by the trial have been misled Rather, Court’s refer- case. affirmatively court’s failure to state remanding in its Payton ence to order mitigat- portion of his “consider direction polite us was clear and case to that he that tended to show ing evidence to the jury our approach to reconsider be- prison and would adapt would well Su- issue instructions society if member of come a constructive opinions in Belmontes, 414 granted a life sentence.” I dissent from the denial re- Boyde. F.3d at 1133. we failed abide hearing en banc because Court’s directive. here,
Unlike the situation at- defense prosecutor “both the
torney jury to the miti- urged the consider evidence, like-
gating trial court all
wise instructed consider