William Charles Payton v. Jeanne Woodford, Warden, William Charles Payton v. Jeanne Woodford, Warden

PAYTON, William Charles

Petitioner-Appellee,

v. WOODFORD, Warden,

Jeanne

Respondent-Appellant.

William Charles Petitioner-

Appellant, Woodford, Warden,

Jeanne

Respondent-Appellee.

Nos. 00-99003.

United States Court of Appeals,

Ninth Circuit.

Filed Oct. SCHROEDER, Judge, Chief

Before KOZINSKI, PREGERSON, TROTT, FERNANDEZ, NELSON, T.G. FLETCHER, PAEZ, TASHIMA, W. TALLMAN, Circuit BERZON and Judges. PAEZ; Judge Dissent

Opinion by TALLMAN Judge OPINION PAEZ, Judge: Circuit jury A convicted William Payton (“Payton”) of the first Charles of Pamela degree rape murder Montgomery attempted and the murder son, Pensinger and her Blaine of Patricia sentenced to Pensinger. Payton was Payton appealed death. both his under- and death sentence. lying conviction appeal, direct the California Su- On affirmed both his conviction preme Court Payton, 3 People sentence. v. and his P.2d Cal.Rptr.2d Cal.4th for a petition filed corpus subsequent and a writ of habeas in federal district petition amended habeas Attorney General of Lockyer, Bill court, § after pursuant to 28 U.S.C. Anderson, California, R. Robert State remedies. exhausting his state court General, Gary W. Attorney Assistant Chief Sehons, Attorney Gener- Assistant Senior arguments Payton raised several Millar, Jr., al, Attor- Deputy R. Frederick relating guilt petition habeas Cortina, General, Deputy Natasha here ney A. of his trial. At issue penalty phases Palmieri, General, L. did not Attorney Nancy contention that the Payton’s General, consider, penalty, Her- the death Attorney imposing Esteban Deputy General, post- Di- evidence of his nandez, Attorney potentially mitigating San Deputy good behav- religious conversion California, crime respondent-appellant ego, penal- death prison. ior in The California Woodford. Jeanne S. test contains an eleven-factor ty statute Stratton, Federal Public De- Maria E. and bal- weigh requires Gits, fender, Federal Pub- Deputy Dean R. aggravating and specific ance Defender, Public the Federal lic Office of im- whether to deciding circumstances California, Defender, and Ro- Angeles, Los fac- The first ten pose penalty. the death Rakoff, Corpora- A Professional salie L. or to evaluate judge tors instruct California, tion, Monica, for petition- Santa to the crime specific various circumstances Payton. er-appellee William Charles age and the defendant’s and to account for factor— The eleventh prior convictions. States Su- Remand from United On factor, as a catchall preme Court. —functions enabling judge to consider any with the district court that there was error other circumstance that during Payton’s defendant penalty phase, and we af- presents mitigation of a death sentence. firmed the grant peti- habeas Payton’s penalty During phase, the tion. Payton I”), trial (“Payton Woodford (9th Cir.2002) (en banc). then-existing court used the model F.3d 815 instruction that incorporated this multi- In our initial en opinion, banc we held Jury factor 1 test. See California Instruc that the Antiterrorism and Death Effective (“CALJIC”) tions, (4th Criminal 8.84.1 Penalty 1996, 104-132, Act of Pub.L. No. ed.1979). simply quotes This instruction 1996) 24, (April (“AEDPA”), Stat. 1218 as it exists the death penalty did apply analysis not to our Payton’s of statute, directing to consider habeas claims because Payton pe- filed his circumstance “which gravi extenuates the tition for the appointment of habeas coun- ty of the though legal crime even it is not a sel prior April the effective Id.; for excuse the crime.” Cal.Penal date of AEDPA. Payton, See 299 F.3d at (1978). § Payton Code 190.3 contended 822. In conclusion, this reaching we relied that, although instruction enabled on our prior decision Calderon v. United the jury to consider pre-crime character States (“Kelly”), District Court 163 F.3d evidence, background see Boyde v. 530, (9th Cir.1998) (en banc), in which California, 110 S.Ct. we held that a petition appointment for (1990), L.Ed.2d it limited per habeas counsel coupled with a motion for scope missible of factor in such a way stay of execution was sufficient for fixing as to jury’s remove from the consideration the date for determining when AEDPA only mitigating evidence he presented applies. I, Payton After the Supreme during penalty phase of his trial— Court issued its decision in v. Woodford post-crime of his religious conver Garceau, U.S. good sion and in prison. behavior 1402-03, 155 (2003), L.Ed.2d 363 in which it held that “pending” cases are before the rejected The district Payton’s court guilt effective date of only AEDPA if a habeas phase arguments agreed but pen with his petitioner has filed an “actual application phase alty arguments. The court there corpus habeas court; relief’ in district granted Payton’s fore petition habeas a petition for the appointment of habeas vacated his death sentence. A three-judge counsel is enough. In light of its court, panel however, of this disagreed Garceau, decision in v. the Su- that Payton’s penalty phase was funda Woodford preme granted a writ of certiorari in mentally unfair, reversed the district I, Payton vacated judgment, and re- court, and ordered the writ Pay vacated. manded the case to us for further consid- (9th ton v. Woodford, 258 F.3d 905 Cir. — eration. See 2001). banc, We then Woodford took this case en —, 155 L.Ed.2d 662 adopted the panel’s three-judge decision guilt errors, there were no phase but affirmed the district court’s II”) decision with opinion This (“Payton our reflects respect penalty to the phase. agreed We Here, decision on remand.1 we apply the opinion, In prior this as in our en appeal banc No. Payton challenges the opinion, we address Payton's habeas rulings rejecting district court's his claims of relating penalty phase claims to the of his counsel, ineffective prosecutorial assistance Payton trial. challenges raised several during trial, guilt phase misconduct guilt phase of his trial and contested his un- and the cumulative alleged effects of the con- derlying conviction. The district court found stitutional panel errors. The affirmed the dis- no constitutional error in his conviction. In victim, analysis potential the street he [saw] to our AEDPA standard strict conclude, regardless age Payton’s or looks.” for- habeas claims Payton’s I, court that the district girlfriend we did mer related that she had once petition. habeas properly granted Payton holding awakened find kitchen neck, knife to her and that he had stabbed INFORMATION2 BACKGROUND her chest After him pushed and arms. she night at spending while off, stayed he with held a her and towel home, Payton raped Pensinger’s Patricia bleeding police around her arm until the Montgomery and stabbed her to Pamela arrived. He then entered the bedroom death. witnesses, presented eight The defense Blaine, Pensinger and her son stabbed sheriff, including Payton’s pastor, deputy a Payton and repeatedly, of them fled. each mother, inmates, four his and the director degree murder charged with the first religious organization ministering of a to attempt- and the rape Montgomery prisoners. testimony, Their taken as a Pensinger and her son. ed murders of whole, Payton that tended show had trial, Payton’s jury guilt phase At the again,” “born made a sincere commit- been testimony from presented prosecution the God, performing good ment and was officers who observed the law enforcement jail. works in scene, who experts the crime forensics opin- testified Payton’s pastor that his samples semen confirmed saliva and ion, Payton’s conversion was credible and body were con- Montgomery’s taken from that he was “sincere in his statement and Patricia and Blaine Payton’s, sistent with the The director of commitment to Lord.” victims’ Pensinger gave who accounts religious organization outreach minister- attacks, wife, Payton’s who stated that the prisoners testified to her numerous saw on after the attacks she blood soon Payton spiri- conversations with about his face, clothes, Payton’s penis hands and as tual commitment and its manifestation digs fingernail well scratches and on his with study groups bible he established the back, inmate, Alejan- legs and and a fellow his other inmates. She described conver- Garcia, Payton recounted that dro who inmates, other his admission to a sion of and stabbed Mont- raped admitted that he writ- correspondence college, bible Pensingers and stabbed the be- gomery ings. to kill.” The urge

cause he “had this witnesses, jury and the defense called no they believed Four inmates testified convicted on all counts. Payton’s religious conversion was sin- calming had a influence cere and that he prosecu-

During penalty phase, Pay- inmates. testified on other One inmate presented tion as a witness fellow him from prevented ton’s intervention jailhouse testified to his conversations who committing deputy A sheriff as- suicide. Payton in which admitted that Payton with jail facility related that signed with problems had “severe sex he and had a prayer meetings led women,” that he wanted to “stab them Pay- inmates. them,” every positive influence on other rape and that “wom[a]n issues, pertinent We facts rulings on as do we. summarize trict court’s these surrounding Payton's con- briefly. The facts panel’s reasoning guilt adopt We on the opinions in the set forth in detail viction are Payton, phase own. See issues as our panel the California F.3d at 919-25. 910-14; Payton, F.3d at Court. Cal.Rptr.2d 839 P.2d 1039-40. praying together ton’s mother described the instruction that expressly would have discussing religion with her son and on a jury directed the to consider “evidence of weekly character, if basis. Asked she had noticed a background, defendant’s son, “Oh, change responded: in her she history, mental condition and physical con- yes.... totally He’s immersed in Although dition.” the trial judge agreed Lord.... He’s an instrument of the Lord with the defense interpretation counsel’s (k), as far as he’s concerned.” factor request he declined the because he was reluctant to alter the instruction closing arguments Prior to penal- insofar as it reflected verbatim the text of ty phase, judge held an in-chambers § California Penal Code 190.3. He stated conference attorneys with the about that he would argue allow counsel to They ap- instructions. discussed the point. judge also denied defense plication of the multi-factor in- CALJIC separate counsel’s proposal to amend the (No. 8.84.1) struction that guides permit instruction to to consider in determining whether impose sen- Payton’s “potential for rehabilitation.” imprisonment tence of life or death.3 Fac- (k), factor, tor the eleventh and final During di- closing argument, rected that consider “[a]ny argued other applied gravity circumstance which extenuates the to “some factor at the time of the offense of though the crime even it legal is not a operates that somehow to reduce the grav- excuse for the ity crime.” CALJIC 8.84.1. for what the defendant did” but that it sought counsel an amendment did not “refer to anything after the fact or provided 3. The instruction in (g) full: Whether or not the defendant acted un- der extreme duress or under the substantial determining In penalty which is to be im- person. domination of another defendant, posed you on[each] shall consid- (h) Whether or not at the time of the of- er all of the evidence which has been re- capacity fense the ap- of the defendant to during any part ceived of the trial of this preciate criminality the of his conduct or to case,[except you may as be hereafter in- requirements conform his conduct to the of structed], consider, You shall take into ac- impaired law was as a result of mental guided by count and be following the fac- disease or tors, defect or the affects [sic] of intox- applicable: if ication. (a) The circumstances of the crime of (he (i) age The of the defendant at time which the of defendant was convicted in the the present crime. proceeding any and the existence of (j) special Whether or not the found to defendant was an circumstance[s] be true. (b) accomplice presence partic- The or absence to the offense of criminal and his activity by ipation the defendant which involved the commission of the offense attempted use or relatively use of force or violence or was minor. (k) expressed implied Any or threat to use force other circumstance which extenu- or violence. gravity ates the though of the crime even it (c) presence any prior The legal absence of is not a excuse for the crime. felony conviction. CALJIC 8.84.1. In his instructions to the (d) Whether or offense jury, was commit- judge the trial omitted the bracketed ted while the defendant was under the in- word "each” and retained the bracketed fluence of extreme mental or emotional dis- phrase "except you may as be hereafter in- turbance. (e) structed.” partici- Whether or not the victim was a pant proposed in the defendant's "Any homicidal conduct amendment read: other or consented to the homicidal act. circumstance gravity which extenuates the (f) Whether or not the offense though was commit- crime even it legal is not a excuse crime, ted under including circumstances which the for the defen- evidence of the defen- character, reasonably dant jus- believed to be a background, moral dant’s history, mental tification or extenuation for his conduct. physical condition and condition.” ac- (k) closing argument Defense counsel’s did not factor He asserted later.” be awk- “may factor knowledged that to Chris- Payton’s conversion encompass argued that the fac- wardly worded.” He jail because conduct tianity good catch-all to include designed as a tor was the fact “well after they occurred he had mitigation of evidence the kind to a to refer crime,” the factor “seems that, it presented, and the of- time of at the operation fact critical of most the factors. said: prosecutor point, At one fense.” judge at, closing arguments, have not After the you getting I am What Upon noted above. days any legal instructed few during past heard that it must reach a receiving instructions you’ve What mitigation. evidence result, retired to delib- unanimous evidence to jailhouse just some heard a verdict of jury returned erate. The all. You and that’s your sympathy, win death. mitiga- not heard have trial. this tion DISCUSSION told

Concluding, I. too much spend he did not “want to conversion] be- religious [Payton’s on time May petition habeas Payton filed his really applicable think I don’t it’s cause AEDPA. date of after the effective any of the it under I think comes Garceau, don’t In light Woodford factors.” eleven AEDPA therefore Payton’s habeas analysis to our applies response prosecutor’s claims. for a moved defense argument, mistrial, ar- objecting Court, in a The California what contrary to “completely was gument merits of addressed the published opinion, ‘k’ on the record in chambers agreed we all (k) concluded factor claims5 and re- The court apply to.” designed was error there was no instructional “fair comment it was a sponded 526, 839 Cal.Rptr.2d 13 Payton, trial. See it you argue can and “I think AEDPA, side” either we According to P.2d at 1049. jury that told the The court way.” either Su whether must determine prosecution by both claims adjudication comments of these “the Court’s preme (1) You’ve was evidence. decision that defense are not in a either “resulted and, said, unreasonable to, I this is an contrary or involved the evidence heard of, Federal clearly in its established placed application And it’s argument. law,6 Supreme Court as determined perspective.” proper (k) prior as it existed instruction Supreme to the factor Court the California 5. After 858, as "unadorned.” to this amendment Easley, Cal.3d 196 People v. 34 decided 813, (1983), 309, 10 Cal.Rptr. 671 P.2d 826 n. law refers "Clearly federal established” courts should in- that trial which it held in principles legal principle or governing "the (k) includes that factor form time the Supreme Court at the by the set forth background character Lockyer v. renders its decision.” state court presents his or that the defendant dence 1172, 1166, 63, Andrade, S.Ct. U.S. 123 538 Easley, light of defense. In her (2003). Supreme "While 144 155 L.Ed.2d to ensure was amended instruction authority that precedent is is Court "any or other as- sympathetic jury consider AEDPA, we look to Ninth controlling under or record character pect the defendant’s authority for 'persuasive case law as a Circuit as a basis for offers] defendant [that particular determining death, whether purposes of relat- whether or not than less sentence ap- an "unreasonable court decision is state he is on trial.” to the offense which ed " Davis ed.1996). Supreme Court law.’ v. 8.85(k) (6th plication” of We refer CALJIC See 1210 (2) States,” (em- 2954, (1978) “resulted in a United 98 S.Ct. 57 L.Ed.2d 973 phasis original); Eddings

decision that was based on unreason see also v. Oklahoma, 104, 110, in light able determination of the facts 455 U.S. 102 S.Ct. 869, (1982); 71 L.Ed.2d 1 presented Skipper the evidence the State court v. South 2254(d)(1) (2). Carolina, 1, 4, 1669, § 476 106 proceeding.” 28 U.S.C. & U.S. S.Ct. 90 is, 1 Eighth L.Ed.2d That application” prong, The “unreasonable here, require Fourteenth Amendments analysis “individ- guides “permits which our ualized consideration of factors” ‘grant federal if habeas court to the writ Lockett, capital 606, cases. 438 U.S. court the correct gov state identifies 2954; Penry Lynaugh, S.Ct. see also erning principle from legal this Court’s 302, 317, 2934, 492 U.S. 109 S.Ct. unreasonably applies decisions but (1989), L.Ed.2d 256 overruled on other principle petitioner’s facts’ of case.” — grounds by Virginia, Atkins v. 536 U.S. Smith, —, Wiggins v. 304, 122 S.Ct. 153 L.Ed.2d 335 —-—, 2527, 2534-35, 156 L.Ed.2d (2002); Eddings, 455 U.S. at (2003) (quoting Taylor, Williams v. 869. “Relevant mitigating evidence” in- cludes evidence about a defendant’s likely (2000)). words, L.Ed.2d 389 “In other future in prison. behavior Skipper, See may grant federal court relief when a state (“A 476 U.S. at 106 S.Ct. 1669 defen- misapplied court a ‘governing legal has disposition dant’s to make a well-behaved principle’ to ‘a set facts different from peaceful adjustment prison to life in principle those of the case which the aspect itself an of his character that is Id. at (quoting announced.’” its nature relevant to the sentencing deter- 1175). Lockyer, 538 U.S. 123 S.Ct. at mination.”). application” “Unreasonable means that the application clearly state court’s estab Supreme precedent Court in force at the Supreme precedent lished was “ob time the California Court decided Id.; jectively unreasonable.” see also Payton’s factor arguments required Lockyer, 538 U.S. 123 S.Ct. at 1175. that all potentially relevant mitigating evi pre-crime post-crime We hold that the California dence — — be available to the capital sentencer in a case. Court unreasonably applied “clearly estab- “Moreover, Eddings makes clear that it is Supreme precedent lished” Court not enough simply to allow the defendant facts of this case. present mitigating evidence to the sen- Controlling Supreme A. Court Prece- tencer. The sentencer must also be able to

dent give consider and to that evidence in effect imposing Penry, sentence.” 492 U.S. at Eighth and “[T]he Fourteenth 319, 109 added). (emphasis S.Ct. 2934 sentencer, that require Amendments in case, all but kind capital the rarest Supreme The Court had occasion ana- precluded from considering, as a (k) miti lyze the factor instruction at issue here gating factor, any aspect of a defendant’s Boyde in California, 370, 494 U.S. 110 character or record and of the circum 1190, S.Ct. 108 L.Ed.2d 316 Spe- stances of the offense that the defendant cifically, the Court addressed pe- “whether proffers as a basis for sentence less than capital titioner’s sentencing proceedings vi- Ohio, 586, 604, death.” Lockett v. Eighth olated the Amendment because the 982, (9th Woodford, (9th Cir.), (9th 333 F.3d 990-91 Cir. amended 311 F.3d 928 2003) Cambra, Cir.2002)) (quoting (internal omitted). Luna v. quotation F.3d marks acknowledged teachings in accor- court of Ed- instructed trial court 8.84.1, Lockett, includ- dings, Skipper with former CALJIC that dance (k).” 494 factor Eighth requires the ‘unadorned’ Amendment the sentencer contended Boyde 1190. at S.Ct. capital case to consider evidence of factor did not allow that background, including “good character and to non-erime-relat- give effect consider prison.” behavior in Id. at 1070. ana- evidence, impov- such as his ed claims, however, lyzing Payton’s it focused and diffi- deprived childhood erished entirely Supreme on the Court’s decision school, because instruction culties Boyde, id. at which only evi- considering limited the application “clearly unreasonable estab- dence related to the crime. Id. at precedent lished” because Court Supreme 381, 110 S.Ct. 1190. The Court estab- and, Boyde does not this case control jury in- reviewing lished a standard for focusing exclusively Boyde, almost “ambiguous that are allegedly structions not give proper clearly court did effect to in- subject therefore to an erroneous Supreme established Court cases such as there is a reason- terpretation” —“whether Skipper Penry controlling that are applied has able likelihood here. way instruction in a challenged Boyde does not control this case for of constitution- prevents the consideration First, several reasons. this case concerns ally relevant evidence.” Id. post-crime mitigating evidence such as the to fac- Applying this standard Supreme evidence the considered in Court alone,” (k), “standing tor the Court con- however, Boyde, Skipper.8 addressed “there not a reasonable like- cluded that whether was a likelihood there reasonable Boyde’s jurors interpreted lihood way in a jury applied prevent trial instructions to consid- court’s prevented considering pre- it from evidence of back- eration crime The background evidence. Court Id. at ground and character.”7 belief, long relied on “the held this society, who crimi that defendants commit The B. California Court’s nal acts that are attributable to disad Controlling Su- Application vantaged background, or to emotional and preme Court Precedent problems, may culpable mental he less have no such ex than who ad defendants (quoting cuse.” Id. at S.Ct. 1190 that “the trial Payton’s argument dressed 2934) Penry, 492 U.S. court’s instructions and the quotation internal (emphasis original; believe, jurors to argument led the incor omitted). It “no reason to marks saw rectly, they permitted were not jurors believe that reasonable would resist mitigating consider evidence.” 13 [his] view, in an ‘long by society,’ at 1047. The held Cal.Rptr.2d 839 P.2d Boyde explic- provide such an "excuse.” Id. at 382 n. 7. We note that in the trial court "any itly jury consider other instructed 110 S.Ct. 1190. gravity circumstance which extenuates the and defined "extenuate” as "to the crime” Payton's religious not conversion was mere- by giving of a crime as lessen seriousness Indeed, year ly overnight occurrence. an excuse.” 494 U.S. at 382 n. elapsed from the date of the and nine months added). (emphasis The Court con- S.Ct. 1190 sentence, Payton’s death crime to the date of jury “naturally that the would consid- cluded and during conversion which time background er” character and evi- religious good place. works took "any might dence as other circumstance” that case such evidence would comments at an im- appropriate sentencing “reinforced (k)” of a sentence than imposition permissible counsel less interpretation of factor may be jury death.” Id. Whereas there no it suggesting to the could not doubt, “long light society’s reason to Boyde’s mitigating consider character and views, jury held” that a would consider background evidence. Id. at pre-crime background defendant’s in sen- S.Ct. 1190. The reasoned Court him, tencing there is reason to doubt that prosecutor’s arguments usually “are billed similarly post-crime would consider advance to the as matters of argu- religious evidence of a defendant’s ment, conver- evidence, likely ... and are good in prison.9 sion behavior viewed as the statements of advocates.” addition, Id. at S.Ct. 1190. Boyde did question pre not address the “[arguments of counsel which misstate the whether, face, sented its the una here — subject are objection law and correction (k) dorned factor instruction is unconstitu Key the court.” Id. to the Court’s tionally ambiguous applied to post- reasoning was the fact that there was “no Indeed, evidence.10 crime the Court ex objectionable prosecutorial argument.” plicitly distinguished the character and Indeed, prosecutor never suggested to background evidence at issue there from that it could not consider mitigat- “pertain[s] prison behav Boyde’s evidence of character and ior after the petition crime for which [the background. Id. at 110 S.Ct. 1190. death, er] was sentenced to as was the prosecutor “explicitly assumed that in Skipper” Boyde, case petitioner’s character 5, 110 prop- evidence was a Any n. S.Ct. 1190. reading natural er factor in the weighing process.” (k) Id. the words of the unadorned factor does added). (emphasis not support the inclusion post-crime evi mitigation dence because evidence occur prosecutor Whereas the in Boyde con- ring after a possibly crime cannot “extenu ceded that the Boyde’s must consider ate the gravity Boyde’s of the crime.” mitigating character background conclusions plain wording about the of fac dence, repeatedly here stat- (k) tor instruction’s obvious inclu (k) ed to that factor did not pre-crime sion of background evidence encompass Payton’s mitigating evidence of apply therefore do not in this case. religious good conversion and behavior Second, Boyde, rejected in prison.11 example, For listing after Boyde’s argument 8.84.1, eleven factors pros- CALJIC Indeed, character, as Justice background, Kennard noted in her dence of Babbitt’s People Payton: dissent in history. holding Boyde We noted the disadvantaged Unlike evidence of a back- unadorned factor instruction did not ground, [post-crime] evidence preclude does not fit Boyde’s consideration of character all, neatly, (k), if it fits at into factor Babbitt, because background. Boyde, like howev- it is not an "excuse” for the commission of er, did not applicability address the Thus, jurors the crime. in this case post-crime instruction to likely were more they misled when Payton's. evidence such as attempted apply former CALJIC No. jurors 8.84.1 than were the who evaluated 11.The California Court evaluated "disadvantaged the background” evidence impact the of the on comments presented by Boyde. the defendant in only the on the basis of one of his com- 839 P.2d at 1057. ments. The court failed to consider the cu- Calderon, impact prose- mulative on the Babbitt 151 F.3d of all the (9th Cir.1998), (k) ap- regarding 1178-79 we addressed the cutor’s comments plication of the factor post-crime mitigating instruction to evi- evidence. just jailhouse heard is some you’ve of factor What interpretation gave ecutor your sympathy, to evidence win jury: the to any have not that’s all. You heard circumstance which says any ‘K’ other trial, (em- mitigation dence in this of the gravity lessens the or of extenuates added) phasis that mean? That to crime. What does specifically ... factor at He then told the that it fact some me means some anything had not “heard to mitigate what the that somehow the time of offense [Payton’s] Payton’s only done” and that what gravity to reduce the operates fit mitigating evidence did not into factor the did. It doesn’t defendant refer (k): That’s anything the or later. after fact because the I want to make a few comments about important here particularly religion, only put the evidence the you have heard only evidence defense really spend defendant. I don’t want to this new bom Christian- has been about I added) too much time on it because don’t ity. (emphasis really applicable think it’s and I don’t at- court overruled the defense After the any think it comes under the eleven of objection legal misstate- torney’s added)12 ... (emphasis factors. the prosecutor’s argument, ments in the Indeed, prosecutor jury’s the focused the jury: arguing continued prosecutor factors, attention on the eleven CALJIC I talk- Referring back to ‘K’which was argued encompass Pay- which he did not about, circumstance which ing any other mitigating ton’s evidence: gravity extenuates or lessens the consider, You shall take into account and crime, you’ve defense evidence guided by applicable of factors new heard had to do with Defendant’s aggravating circum- that he the mo- Christianity helped in- upon you stances which have been jail in the while he was deputies dule words, I structed. In other the factors with that is that custody. problem The just you. have read to is well evidence fact after * * * * crime and cannot seem to me in logically gravity way expected supposed go lessen The or weighing process of the through has commit- fac- offense defendant described, (emphasis you just tell tors I have ted. will [The defense] added) a newborn becoming somehow that Christian, really if in fact he believed recog- California place, makes it a less severe took “suggested a prosecutor nized that crime, way there is no that can but fac- interpretation narrow and incorrect any other circum-

happen when—under (k),” “[a]ny impact tor but it reasoned that stance which extenuates lessens ... im- argument may this have had crime, gravity of the refers —-seems counsel’s ob- mediately blunted defense operation at the time refer to a fact jection, led the court to remind which at, you getting I am What were ‘not evi- lawyers’ comments offense. past days during ‘argument,’ placed have not heard and ‘to be dence’ but few ” 13 13 Cal. perspective.’ any legal mitigation. proper evidence [their] [of] 13 Cal. prosecutor's attention to it.” statement substantial 12. We note that Rptr.2d 839 P.2d at 1049. directly appears to contradict determination "the Court’s Boyde the implicitly Supreme Court reiterated in conceded the relevance 13. The principle that the statements by devot- well-established defendant’s (k) ambiguous with an factor instruction P.2d at 1048. This was Rptr.2d post-crime mitigating and with application Boyde.14 of an unreasonable that, character and pre-crime unlike the arguments “the of According Boyde, to not fit background Boyde, evidence in did court, counsel, like the instructions of clearly plain wording within the the in which in the context judged must be this, top of the court ex- instruction. On 385, 110 they are made.” 494 U.S. plicitly prosecutor argue authorized the to (k) Boyde, In the factor instruction Payton’s post-crime mitigating prose but the ambiguous potentially factor dence could not be considered under argument in his correctly cutor stated (k), objection overruled defense counsel’s Boyde’s mitigating jury the must consider misstatements, legal to the evidence, thus background character and jury the that it must and failed to instruct clarifying scope the of the instruction. give post- consider and effect to Here, however, mitigating evidence.15 This is not a jury the was confronted crime counsel, attorneys usually arguments into the "are billed in advance to the of calls doubt of argument apparent certainty jury of ... and as the that the did the as matters court’s ignore Payton’s mitigating statements of advocates.” 494 U.S. not evidence. Moreover, "arguments 110 S.Ct. 1190. the generally carry weight with a less counsel “My only problem stated: 15. Defense counsel the jury than do instructions from court.” Id. agree is I we that that's the [that think all law application Boyde It was an unreasonable (k) Payton’s post-crime factor includes miti- assume for the California Court to evidence], gating jury’s going but the to jury, that the which received instructions replied, judge agree "I with know.” The attorneys’ merely argu- statements were both you.” judge your The then stated: "I see evidence, accord more ment and not would position the edification and clarification of weight argument, to defense counsel’s con- refuse, said, jury. going the But I’m as I taining with correct statements of the law (k)] modify [factor instruction ... I as- (k), respect to such as to "blunt” the factor you gentlemen your argument sume ... can prosecutor’s legal misstatements effect of certainly relate—relate back to factors those (k). Cal.Rptr.2d See about factor certainly argue can the defendant's char- According at 1048-49. 839 P.2d acter, condition, background, history, mental Boyde, by only instructions the court have the condition; physical certainly catego- fall into Here, attorneys’ force to "blunt” comments. ry certainly argument 'k' and make clear however, provided clarify- court no trial added) jury.” (emphasis also court scope proper instructions as jury weigh instructed the the CALJIC fac- (k) prosecutor’s legally factor to "blunt” tors, explicitly never but clarified erroneous statements. Payton's post-crime mitigating could consider (k) though evidence under factor even unlikely it was The court reasoned agreed court with counsel that factor defense jurors that "reasonable would believe the (k) encompassed this evidence: transformed all of[defen- court’s instructions testimony determining penalty imposed favorable into a virtual cha- In to be dant’s] defendant, Cal.Rptr.2d you 839 P.2d at rade.” 13 shall consider all of Boyde, (quoting 494 U.S. at the evidence been received dur- which has omitted; case, 1190) (internal quotation ing any part except al- marks of the trial in this however, Boyde, you may original). teration in instructed. You hereafter consider, only ambiguous received an factor shall take into account and be Here, contrast, guided factors, following applica- instruction. re- if (a) (k)]. ambiguous through ceived not in- ble[lists struction, explicit, repeated argu- but also having ments that the defense had After heard all of the evidence and presented having argu- no evidence and that after heard and considered the counsel, consider, post-crime you mitigating evidence does ment take not fit shall This, (k). coupled guided by applica- into factor with the court's into account and be instruction, infra, aggravating see consider ble factors

1215 off- in prosecutor imposed spite in which the made an be of factors which may case during penalty] the of trial. call for a less severe unaccepta- hand remark course is argument incompatible was ble and with the prosecutor’s The erroneous commands of Eighth and explicit, from It was deliber- Fourteenth Amend- far subtle. ” Lockett, Indeed, ments.’ ate, consistent, (quoting 438 U.S. at repeated. and 2954)). prosecutor’s with the jury presented was attorney’s conflicting ar- defense context, In this there was a reasonable it could guments legally about whether that, likelihood as a prosecu- result of the un- Payton’s mitigating evidence consider legally tor’s arguments erroneous and the (k),16 up and the court left it to der factor court’s failure to correct the arguments law jury to choose which version of the instructions, proper jury with the jury did per- court apply. expressly When the give not consider and post- effect to the argue legal meaning of mits counsel crime mitigating evidence of reli- instruction, instructing without ever gious good conversion and behavior correct, jury interpretation which is prison. This was constitutional error. See arguments obviously of counsel take on Penry, 492 109 S.Ct. 2934 lay jury A ill- significant importance. (reversing a death sentence and remand- equipped to determine which view of the because, ing resentencing on the basis law is correct.17 See v. United prosecutor’s of the argument the ab- Griffin States, instructions, jury sence of appropriate “a (1991) (“When jurors L.Ed.2d ... juror reasonable could well have believed option relying upon have been left the a that there was no vehicle for expressing theory, rea- legally inadequate there is no Penry the view that did not deserve to be intelligence son to think their own based upon mitigat- sentenced death error.”); expertise evidence”); will save them from Skipper, 476 U.S. at Penry, 492 U.S. at 109 S.Ct. 2934 (holding post-crime S.Ct. 1669 (“ When the choice is between life and dence that a pose defendant would not death, will penalty danger prison po- [that that risk the death “must be considered upon you prosecutor’s interpretation, which been circumstances have defense coun- prodigious trying instructed. sel faced hurdle added) jury proper interpretation. (emphasis convince the pointed in her As Justice Kennard out dissent People Payton: 17. As the dissent noted in v. People Payton: The court’s statement to the its ruling wrong. The trial court's (k) considerations of “all of the evidence” proper scope question of factor is a law, guided arguments duty should "the not of fact. It is the trial court’s applicable ag- place and “the factors explain jury, counsel” the law to the not to circumstances,” gravating upon impossible de- burden of ciding was tantamount to an instruction to the which of two inconsistent views of jurors power the law is correct. The in this case that its to consider laypersons; presumably they were un- unlimited. were was not This instruction could legislative history familiar with the of factor strengthen the erroneous interpreting Eighth or with cases repeated argument it Thus, they totally Amendment. were une- legally could not consider miti- defendant’s evidence, quipped whether to decide gating may and the well have correctly explained or defense counsel had accordingly. acted they which evidence were entitled to them 839 P.2d at 1058. deciding defendant to consider whether reading una- live die. Because natural should already dorned factor instruction favored P.2d (9th Marshall, 739, “may v. mitigating” guez and not ex- 125 F.3d 744

tentially Cir.1997) consider- (stating from the sentencer’s that petitioner cluded bears the n ation”); Eddings, harm); 455 U.S. at 102 showing burden of Frankli v. (holding (9th Cir.1997) that the sentencer in a 1270, S.Ct. 869 122 Henry, F.3d 1273 consider, capital may case not “refuse (same); Hood, with v. Keating 191 F.3d law, any mitigating relevant (9th (as as a matter Cir.1999) amended) 1053, 1062 of may give and such evidence evidence” (noting that the state bears the of burden Lockett, 608, weight”); “no 438 U.S. at 98 harmlessness); Roe, showing Fisher v. (striking down death S.Ct. 2954 Ohio’s (9th Cir.2001) (same); F.3d penalty violating Eighth statute as Olivarez, with v. Mancuso 292 F.3d Fourteenth Amendments due to its “limit- (9th Cir.2002) (as amended) (at 949 n. 4 range ed circumstances clarify tempting inconsistency our by the may which be considered sentenc- regarding proof caselaw burdens of preclusion er” and its from consideration concluding reviewing that “the court must factors). The of other relevant independently determine whether a trial conclusion to Supreme Court’s injurious error had a substantial and ef contrary, Boyde, the basis of which fect, without consideration of burdens of improper legal argument did not address proof’); Thompson Borg, 74 F.3d or a court’s failure to (9th Cir.1996) (rejecting burdens provide jury instructions to correct proof in favor of independent an determi attorney’s legally erroneous argument, was nation of whether a trial .error had a sub “clearly an es- application unreasonable effect). injurious stantial and precedent. tablished” It is clear from O’Neal that instruction, a mitigation When the effect of petitioner does not bear the burden of trial, viewed in the full context of the tois showing harm. 513 U.S. 115 S.Ct. duty confuse or mislead the its (“[W]e note that deliberately we evidence, all mitigation consider relevant phrase the issue in this case terms of a there has been constitutional error. doubt, judge’s grave instead of terms of

II. ”) added). proof.’ ‘burden of (emphasis Because the harmless error analysis is a light In of our conclusion that there purely legal question that lies outside the error, was constitutional we must now de realm fact-finding, we dispense with cide whether this error was harmless. We burdens of proof presumptions. See hold that the error was not harmless be id. at (explaining 115 S.Ct. 992 injurious cause it had a “substantial and the court must determine whether the er verdict, jury’s effect or influence” on the judgment ror affected the “without benefit Abrahamson, 619, 623, Brecht v. 507 U.S. of such aids presumptions or allocated 1710, 123 (1993), L.Ed.2d 353 proof burdens of that expedite fact-finding we are “grave left with doubt” as at the trial” (quoting Traynor, R. The Rid error, harmlessness of O’Neal v. (1970))). dle of Harmless Error McAninch, O’Neal 992, 130 directs us to “conceptually ask a clearer” L.Ed.2d 947 question in reviewing the record in a habe matter, As an initial note that we our “ I, judge, as case: ‘Do the think caselaw is not clear as to whether substantially error jury’s influenced the state, neither, petitioner, the bears re- ” 436, 115 decision?’ Id. at sponsibility demonstrating the signifi- asking cance of the question, step error under the this we back to Brecht/O’Neal Compare harmlessness standard. Rodri- determine spectrum where we are on the certainty about the harmlessness of the ible harm caused an execution resulting If we are convinced from unconstitutional error. In weigh- constitutional error. case, non-capital these concerns jury, “the error did not influence the effect, Court stated: very slight or had but the verdict should stand.” Id. at judgment and the acquittals [T]he number of "wrongly (quoting by grant 115 S.Ct. 992 Kotteakos v. caused delayed writ and (the States, 750, 764-65, retrial most affecting 328 U.S. 66 serious harm United interests) (1946)). 1239, If, legitimate the State’s L.Ed. 1557 on will be S.Ct. 90 hand, compared small when with number fairly the other we are not assured (de- persons whom verdict, opposite this rule that there was no effect on the we writ) nying wrongly would imprison Id. In the circum- must reverse. “narrow balance, or execute. On we must doubt “grave stance” in which we are in doubt” that corpus the law habeas would hold error, as to the effect of the constitutional many people prison “in violation of we must assume that there was such an Constitution,” for fear that other- O’Neal, effect, grant petition. 513 number, held, wise a smaller may not so 436, 438, 992; at 115 S.Ct. see also U.S. eventually go free. 74 at Thompson, F.3d O’Neal, 443, 513 at U.S. 115 S.Ct. 992. inquiry, In the course of this it is Placing the “risk of doubt” on the state is that bears the “risk of doubt.” State also consistent with body jurispru- O’Neal, 438, 992; 513 U.S. at 115 S.Ct. placed dence that has the burden of show- (9th 742, v. Crawford, Valerio 306 F.3d 762 prejudice party lack of on the who — (en Cir.2002) banc), denied, cert. U.S. would benefit from the constitutional er- -, 1788, 155 L.Ed.2d 123 S.Ct. 695 437-44, 992; ror. Id. at 115 S.Ct. United (2003). We look to the to instill in us State Olano, 725, 741, States v. 507 U.S. 113 a “fair assurance” that there was no effect (1993) 1770, 123 (stating S.Ct. L.Ed.2d 508 Woodford, on the verdict. See Morales v. government bears the “burden of (9th Cir.2003) (“[T]he 1136, 336 F.3d 1148 showing prejudice”); the absence of Chap- provide must with a ‘fair state us assur v. California, man 386 87 U.S. ance’ that the error was harmless under (1967) 824, (noting 17 705 L.Ed.2d Brecht.”); Valerio, 762; 306 F.3d at see original that “the common-law harmless- O’Neal, also 513 at 115 S.Ct. 992 put error rule the burden on the beneficia- (“[T]he normally responsibility State bears ry ... prove of the error to that there was for the error that infected initial tri Kotteakos, injury”). no which articulated al.”). if the Only persuaded State has us the harmlessness la- standard Brecht injurious that there no was substantial adopted “places ter and that we now apply, effect the verdict do we find the error prosecutors explain why the burden on harmless. Brecht, those errors were harmless.” 507 (Stevens, J., U.S. at 118 S.Ct. 1710 framework

This is faithful to the balance concurring).18 Court has struck between comity us, concerns of federal-state and finali- Considering the before record trials, ty in criminal provided state and the irrevers- State has not us with a “fair they appear place peti- 18. To the extent that are inconsistent the burden on the opinion, with this we overrule the statements tioner to establish that there was harm under 744; Franklin, Brecht, Fisher, Rodriguez, F.3d at 122 and the F.3d statements 263 1273; Hubbard, Keating, at at F.3d Thomas 191 F.3d at (9th Cir.2002) (as amended) appear place F.3d the same burden on the State. have felt law from prejudice did not would constrained that the error assurance” Pay- considering that evidence. Without Payton’s trial. penalty phase evidence, 437-38, 992; O’Neal, was ton’s 513 U.S. § Valerio, one side of bound California Penal Code 190.3 F.3d at On Easley, a death sentence. See impose is the State’s evidence of sheet balance 309, 671 P.2d at 827. Cal.Rptr. There is no circumstances. aggravating a brutal crime. The that this was question “all Having pondered happened eyewitnesses prosecution introduced action stripping without the erroneous actions, testimony as to his mo- whole,” O’Neal, from the 513 U.S. at character, and forensic other tives and Kotteakos, (quoting 115 S.Ct. 992 evidence to demonstrate 1239), we do not arrive the crime. devastating effects of the error at a fair assurance stated, the balance sheet It is the other side of previously harmless. As we have that the that undermines assurance qualitatively a death sentence is “[b]ecause was not affected. As re- jury’s verdict punishment, from of different other forms 190.3, § Penal quired by California Code greater reliability there is a need for in jury instructed the the trial court further it in a determining appropriate whether is you aggravating “If that the that conclude Calderon, particular case.” Coleman v. cir- outweigh circumstances the (9th Cir.2000); 210 F.3d see cumstances, impose a sentence you shall Maryland, Mills v. 486 U.S. also have determined that there of death.” We (1988) (“In 1860, 100L.Ed.2d that jury likelihood the is reasonable sentences, reviewing death the Court has accepted the erroneous state- certainty greater demanded even that the rather than the defense ment of the law jury’s proper conclusions rested that it therefore failed to counsel’s and grounds.”). Far a fair that from assurance only the evidence offered in miti- consider harmless, jury “possible the error was the gation That left the penalty. of the death arising confusion” from the trial court in any countervailing of evidence bereft “grave struction doubt leaves us about against prosecution’s evidence weigh likely jury’s of effect error on the [the] aggravating of circumstances. O’Neal, verdict.” 992; Fisher, see also F.3d know would We cannot whether 917-18. We therefore conclude of life or of have returned verdict death instructional error had a “substantial properly Payton’s it instructed. had been injurious jury’s effect or influence on the extensive evidence of his conversion to a new penalty influence on other in- verdict” necessitates Christianity, positive mates, jail phase penalty trial. is entitled to a good and other works were potential properly trial before a is in offered to evoke to If post-crime for rehabilitation.19 had been structed that it must take his weigh favorably determining inclined to evidence of re- into evidence account deeming impose features of his character or his whether to a sentence of life or trial, custody pending it conduct while death. Skipper,

19. We note that realm. See 476 U.S. at suggested religious (remanding strongly Payton's penalty phase con- new trial merely post-crime mitigating version was more than a "miracle on when exclusion of however, Ultimately, "impeded sentencing jury's ability the cellblock.” resolv- dence depth question carry considering be- out its task of all relevant sifting weighing liefs demands the kind of facets of the character and record of the indi- offender”). jury’s evidence that is the exclusive vidual (AEDPA) 110 Stat. lim- significantly CONCLUSION power ited the of the federal bench to Accordingly, judgment we AFFIRM the grant prisoner’s petition state for habeas granting Respondent’s of the district court AEDPA, corpus. Post the successful ha- summary judgment motion for as all applicant beas must convince the federal IVB, except item 3 of the claims Claim judge appellate panel the state corpus, granting for habeas petition upholding court decision his conviction or as to corpus penalty the writ of habeas to, sentence “contrary or involved an phase of the trial. of, application unreasonable clearly estab- AFFIRMED. law, lished Federal determined Supreme Court the United States.” 28 TALLMAN, Judge, dissenting Circuit 2254(d)(1). § U.S.C. KOZINSKI, part, joined by Judges Circuit FERNANDEZ, TROTT, and T.G. The majority holds that the California NELSON: unreasonably Court applied Su Today, judges preme precedent six of this court announce in upholding Pay- legal conclusion reached seven Maj. Op. ton’s sentence of death. at 1215. colleagues1 justices five (plus of their In order majority for the to reach this Court) is not conclusion, it must have decided that the in wrong, objectively but unreasonable Supreme California holding Court’s was light clearly established federal law. erroneous,” “more than incorrect or in According judges majori- to the six application” “unreasonable clause of ty, judges those twelve were so off-the- 2254(d)(1) § “objectively means unreason analyses mark in their of United States Andrade, 63, Lockyer able.” v. 538 U.S. that Supreme precedent Court their 1174, 1166, 123 S.Ct. 144 155 L.Ed.2d legal Payton’s shared conclusion—-that (2003). enough “It is not that a federal rights constitutional were not violated court, in independent habeas its review of the “unadorned” factor instruction— legal question is left with a firm convic objectively must be deemed unreasonable. tion that the state court was erroneous.” respectfully I dissent.2 (citation quotation Id. at 1175 marks omitted); Visciotti, see also v. Woodford

I 19, 24-25, 357, 537 U.S. 154 (2002) (“Under 2254(d)’s § L.Ed.2d 279 The Antiterrorism and Effective Death 1996, clause, Penalty application’ Act of Pub.L. No. ‘unreasonable a federal 815, (9th Cir.2002) (en witnesses, single 1. See 299 F.3d 830 of this en not member banc) (Tallman, J., dissenting part, joined panel preju- banc believes that was Kozinski, Trott, Fernandez, by Judges during guilt phase light diced 905, Nelson); (9th T.G. 258 F.3d 910 Cir. overwhelming against him. Nor J., Gould, 2001) J.) (Rymer, joined by single judge does a believe “there is a reason- that, probability [any able absent errors of I concur the court's decision not to dis- counsel], including defense an sentencer — underlying reject turb the conviction and to court, appellate independently to the extent it Payton’s challenges most of to both his con- reweighs the evidence—would have conclud- Maj. Op. viction and sentence. at 1. No n. aggravating ed that the balance of and miti- argument supports Payton's one that he re- gating circumstances did not warrant death.” ceived ineffective counsel at ei- assistance of Washington, v. guilt penalty stages Strickland ther the of trial. Even 2052, though present any defense counsel did not 80 L.Ed.2d 674 1220 of evidence jury to consideration simply the not issue the writ may

habeas court crime. The United directly related to the in its inde- concludes that court because reject- emphatically Supreme state-court de- States Court judgment pendent 494 at reading. Boyde, See U.S. Supreme ed such [United States applied cision (“The instruction did incorrectly.”). 110 1190 S.Ct. precedent] Court not, suggest, limit seems petitioner un- Court Supreme Did the California ‘any other cir- jury’s consideration reasonably apply United States the crime which extenuates cumstance of not. Certainly precedent? Court gravity of the crime.’ explicitly Supreme Court The California other circum- to consider directed Eighth Amendment re- acknowledged the crime, which that excuse the might stance jury in sentencing capi- that a quirement back- certainly a defendant’s includes mitigating character tal case consider character.”) (emphases orig- ground and People v. 3 background evidence. inal); see also id. S.Ct. 839 P.2d Cal.Rptr.2d Cal.4th jurors would it that (finding “improbable (1992). Then, applying the 1035, 1047-48 (k)] interpretation [factor arrive at decision Supreme Court’s United States all non-crime- precludes consideration of Boyde California, evidence”). related (1990), L.Ed.2d 316 have, it could the Cali- Though perhaps Supreme Court concluded did not cite to fornia ju- “reasonably likely that the it was not analysis. Recognizing and end Boyde its required the law them rors believed prevent a defendant “Boyde does mitigating evidence.” [Payton’s] disregard asserting from a claim to the effect other.-words, the California Id. factors, other prosecutorial argument, or Supreme Court determined (k),” misinterpret led the Payton’s miti- jury heard and considered Payton, 13 839 P.2d Cal.Rptr.2d deciding that death before gating evidence explain to pains the court took warranted. was misinterpretation occurred here. no applica- Supreme Court’s The California all, court stated that First of Boyde was not tion of the decision prosecutor’s argu- erroneous impact of Boyde, In but correct. reasonable (that post-crime mitigating ment evidence upheld Supreme Court United States by jury) was should not be considered challenge against Eighth Amendment objection counsel’s “blunted” defense instruction em- jury CALJIC the same jury and the trial court’s admonition to the cen- trial. The ployed Payton’s penalty case, were not evi- Payton’s arguments that counsels’ Boyde, tral issue (k)’s Cal.Rptr.2d 13 839 language limits dence.3 was whether factor 145 L.Ed.2d closing argument the incor- (k) rectly to stated that "doesn’t refer factor prosecutor’s arguments later,” were also con- whereupon anything after the fact or Boyde, cern in and the Court stated: immediately admonished the court the trial generally carry [Arguments counsel less jury made counsel were that comments weight jury do with than instructions argument, I do not understand not evidence. usually the court. The former are from why this standard ad- we should not accord jury to billed in advance as matters of normally respect we afford it monishment the evidence, likely argument, not and are presumed non-capital are to cases. Jurors advocates; as the viewed statements proof specific follow such admonitions absent latter, recognized, we are viewed have often they Angelone, did not. See Weeks binding statements of the as definitive and Second, P.2d at 1048. the court noted that Id. (quoting Boyde, 494 U.S. at 1190). the prosecutor’s Moreover, own statements lessened S.Ct. the court noted impact argument. of the erroneous that the trial court “instructed prosecutor implicitly “[T]he conceded the consider ‘all of the evidence which has [Payton’s] relevance of mitigating during evidence been received any part of the trial’ by devoting determining the penalty.” substantial attention to it.”4 (quoting Id. Third, Boyde, 1190) Id. at perhaps sig- most U.S. at added). nificant, (emphasis explained the court The trial court’s admo nition to unlikely was consider all the ignore Payton’s buoyed mitigating the conclusion that regardless ambiguous of the considered evidence— Payton’s mitigating Finally, evidence. instruction or the court noted that attorney, “in arguments his doing so would have —since own closing argument, strongly turned the reinforced penalty phase “into a virtual the correct [Payton’s] view that religious charade.” The court stated: conversion was proper mitigating evi For the accepted have a narrow dence.” Id. Defense argued: counsel view of factor in this case would have (k) may worded, “[S]eetion be awkwardly disregarding meant all of defendant’s but it preclude does not or exclude the evidence, testimony since the kind of evidence that presented. was It’s eight penalty phase witnesses was a catch-all phrase. It designed all religious directed to his conversion include, exclude, that kind of evi and consequent prison. behavior in In- dence.” Id. deed, it would have meant disregarding thorough After this analysis, the Califor- virtually penalty phase, the entire since nia Supreme Court concluded that “it is testimony prosecution’s two not reasonably likely that under- occupies only witnesses eleven pages of stood the court’s precluding instructions as the transcript. unlikely, We think it consideration of defendant’s however, high as did the court in Boyde, dence.” Id. jurors “that reasonable would believe the court’s instructions transformed all How that decision constitutes an unrea- [Payton’s] testimony ‘favorable into a application sonable of United States Su- ” virtual charade.’ preme precedent mystery is a Arguments law. of counsel which misstate argued jurors have done and not that could subject objection law are and to Payton’s religious not consider conversion but correction say court. This is not to they that should not pros- value it much. The prosecutorial misrepresentations that may argued religious ecutor that the conversion never have a jury, decisive effect on the but would not gravity seem to "lessen the they judged that are not to be as hav- offense”; that the defense evidence was of- ing the same force as an instruction from jury’s] sympathy”; fered "to win [the that counsel, arguments the court. And the Payton's religion new-found could not undo court, like the instructions of the must be past; his bad acts from the and that while judged they in the context in which are Payton appealed jurors’ mercy, to the he had made. prosecutor shown none to his victims. The Boyde, 494 U.S. at 110 S.Ct. 1190 implicitly acknowledged also the evi- (citations omitted). presented by dence the defense counted for something you prosecutor certainly when he stated arguing “[i]f erred want to factors, "any legal points distribute a thousand had not heard over the mitigation.” go dence in majority But for the 900 would have to to what he did Mrs. closing, Montgomery.” did what he should deliberately [the when he murdered vic Supreme identi- Court me. The California (2) miti- probability rule —that that he governing “Is there a tim]?” fied the correct (3) and character evidence background in “Did gating dangerous the future?” will sentencing from the precluded not be may unreasonably response provo act he then decided jury’s consideration —and 320, 109 S.Ct. 2934. cation?” 492 U.S. To reach was not violated. that the rule questions all three If the answered faithfully court decision the California this affirmative, the trial required state law Boyde, the most the dictates followed a sentence death. Id. at impose court to Court case. analogous Supreme 310, 109 S.Ct. 2934. Boyde wrong was the case to Apparently Court, none According Supreme to the “Boyde majority tells us apply, for the provided instructions these Maj. Op. at this case....” does not control expressing a vehicle for its ‘reasoned “with According majority, Cali- [Penry’s response’ mitigating] ev- moral was unreasonable fornia Court deci- rendering sentencing idence in its give proper not effect to it “did because 328, 2934. None of sion.” Id. S.Ct. cases Supreme Court clearly established to take into questions allowed Carolina, South Skipper [v. such as Penry’s past account mental retardation or 90 L.Ed.2d child abuse. The first instruction asked (1986),] Penry Lynaugh, 492 U.S. [v. jurors Penry acted to decide whether 106 L.Ed.2d 256 “deliberately.” Id. at 109 S.Ct. 2934. (1989),] Id. controlling that are here.” However, the Court noted: Skipper Penry supports nor Neither culpability solely a func- Personal is not proposition capacity of a to act “de- tion defendant’s erred, unreasonably ap- let alone liberately.” juror A ... could rational clearly federal law. Both plied established [Penry] have concluded ... deliber- distinguishable from the plainly cases are escape ately [the victim] killed detec- In the trial court Skipper, ease at bar. re- Penry mentally tion. Because was irrelevant defense witnesses excluded as however, tarded, and thus less able than would have testified that the defen- who impulses a normal adult to control his adjustment” good dant had “made a while consequences to evaluate the of his con- prison. 476 U.S. duct, history and because of his of child- contrast, L.Ed.2d 1 abuse, juror hood same could also calling such precluded from character Penry “morally conclude that was less fact, Payton eight called witnesses. culpable than defendants who have no all testified that had witnesses who excuse,” such but who acted “deliberate- jail. while discovered God commonly ly” as that term is under- least, Penry, at has somewhat similar stood. facts to this case. There the defendant (internal quo- Id. at 109 S.Ct. 2934 produced evidence of his mental mitigating omitted). tation marks and citation childhood retardation and abused but was asking question, The second whether to death. Like still sentenced future, Penry dangerous would be the that Penry argued rights his constitutional precluded considering also the from by inadequate jury were instruc- violated fact, In Pen- Penry’s mitigating evidence. tions, effectively precluded which the ry’s mental retardation and childhood considering mitigating from his evidence. pose he would suggested abuse con- posed questions The instructions three (1) 324, society. Id. at Penry tinuing the to consider: “Did act threat (“Penry’s mental retardation control this case. certainly And it history two-edged of abuse is thus suggest does not the California Su- may sword: it diminish his blameworthi- preme unreasonably Court applied United for his crime even as it indicates that ness Supreme States Court precedent when it probability that he will be dan- there is extended Boyde post-crime mitigation future.”). final gerous question the The evidence.5 Penry’s response asked whether to the does Why majority rely the on cases provocation of the victim unreason- such as Penry Skipper while discount- able. Court held this instruction ing Boyde, directly a' case almost similarly did not allow the to consider point?6 The reason Boyde must be that Penry’s mitigating evidence because “Pen- suggests a different result than the one ry’s mental retardation arrested emo- True, majority Boyde wants reach. development tional ... would not neces- “pre-crime” concerned mitigation evidence sarily diminish the ‘unreasonableness’ whereas this case “post-crime” concerns Id. his conduct....” mitigation evidence. But once one ac- in Penry, Unlike the instructions which knowledges, as the Court did in precluded on their face from (k)’s Boyde, that factor text allows for considering defendant’s mitigating ev beyond consideration of evidence the crime idence, Pay- the instructions here allowed itself, logical there is no reason to believe jury to “any ton’s consider other circum that post-crime character strengths are which gravity stance extenuates the capable extenuating less gravity it though legal the crime even is not a pre-crime of the crime than character excuse for crime.” Cal.Penal Code strengths. 190.3(k) (1978) added). § (emphasis In Moreover, Boyde as both the Boyde majority desperately case the —the majority’s opinion here recognize, fac- ignore

wants to United States Su —the jurors tor allows to consider a defen- preme Court held that “there is not a dant’s character. And that basically is Boyde’s jurors reasonable likelihood that what attorney tried to show dur- (k) in interpreted [unadorned penalty phase Payton had mit prevent struction] to consideration of —that undergone a character transformation af- igating background evidence of and char being jailed. ter Witnesses for acter.” 494 U.S. at 110 S.Ct. 1190. Post-Boyde, away that he stated turned from his for- argue one cannot God; ways unadorned factor is consti mer evil and toward no instruction he tutionally abuse, longer sought deficient on its face as were the to harm and stab and women; instead, given Penry. Penry instructions rape sought help does he majority, range Other cases cited such as cause of limited "[t]he Oklahoma, [provided circumstances in the which Eddings statute] may be considered .438 sentencer Ohio, (1982), 71 L.Ed.2d 1 and Lockett v. U.S. at 98 S.Ct. 2954. 57 L.Ed.2d 973 (1978), distinguishable. Eddings, are also Though Boyde helpful major- when is the trial court heard evidence of ity’s argument, applied. it cited See upbringing defendant’s violent and emo- Maj. Op. (explaining 1213-1214 improperly tional disturbance but decided Court’s re- conclusion that such could not be considered as garding impact prosecutor’s argu- a matter of law. 455 U.S. at (k) precluded post-crime that factor ment Lockett, 869. the Court held that the Ohio mitigation evidence "was an unreasonable ”). penalty Boyde application death statute was unconstitutional be- unreasonable, means objectively which Payton presented inmates. male fellow An than incorrect or erroneous.” to that ef- “more of evidence amount significant drade, 1174. 123 S.Ct. at to it. must U.S. fect, jury listened We and the Boyde— the not. considered it. As this standard it was Under presume Penry Skipper gave noted: as well as Boyde Court — of lati Supreme plenty Court California solitary isolation do not sit Jurors that it reason tude to reach decision for subtle instructions parsing booths ably The California made. way that in the same meaning shades distinguish just qualified as we are to is among might. Differences lawyers Supreme Court apply United States of instructions interpretation them majority’s “readiness to precedent. The in the deliberative may thrashed out pre error is inconsistent with the understand- attribute with commonsense process, and follow light sumption instructions in the of all that state courts know ing of the Visciotti, likely at the trial place taken the law.” that has hairsplitting. technical prevail over 380-81, 110 S.Ct. 1190. Unfor II either did not tunately for question turn to the of harmless We on the or did this miracle cellbloek

believe error, jettisons. majority hastily which to the comparison it much not value wrong in prosecutor may The have been crimes he committed. horrific urging disregard defen- majority is wrong I am Perhaps religious claim of con- post-arrest dant’s from Boyde distinguishable is correct version, forget but we must not the factual pre-crime it concerned case because this rendered its context which so, I am at But even mitigation evidence. morning In the wee hours of the decision. how the California a loss to understand Payton May William Charles unreasonably applied Supreme Court Grove, California, arrived at the Garden precedent. Supreme Court United States Pensinger. Payton, home of Patricia who mitigating evi- pre-crime/post-crime in Pensinger’s had once been a boarder majority dichotomy offered dence home, Pensinger working found awake and untenable invention— majority’s own puzzle on a in the kitchen. He not that of the United States cross-word commands that we show car experiencing Court. AEDPA informed her that he was counterparts for our respect more welcomed Pensinger graciously trouble. judiciary. We do not have the into her home and offered him Payton AEDPA, right ignore however much our beer, talking some which he drank while personal justice urges us to over- sense Dur- Pensinger with until about 4:50 a.m. turn sentence. We are not Con- conversation, Montgom- their Pamela gress. not the United States Su- We are ery, temporarily residing at a boarder preme Court. home, Pensinger’s entered the kitchen. Payton. her Pensinger introduced might disagree as to

Reasonable minds Montgomery, staying who was with Pen- Payton’s sentence was based on whether singer duty while her husband was on with instructions, constitutionally adequate jury Guard, glass filled with the National considering er- especially water, then left the kitchen and returned jury. But that arguments roneous Pensinger bedroom. asked before us. For us to her question is not the petition, sleep living if he could on the room couch grant Payton’s California Su- preme Pensinger decision must have been said he could. Court’s everyone While else the house was 130 L.Ed.2d 947 Common Payton asleep, repaid Pensinger fast sense tells us the answer is no. Abstract hospitality by waking her her with two legal discussions are important in the de- back, to her her stabbing forty blows times law, velopment of the but so is the ability face, neck, chest, back on her and to look at impact of those abstract son, Blaine, stabbing ten-year-old her decisions the context of the real world. face, twenty-three times neck Any legal errors in this ease were harm- Miraculously, Pensinger back. both less relation to the acts by committed Montgomery her son survived. Pamela the- man who stood before the jury and lucky. body was not so Her was found mitigate asked it to his sentence based Payton after the Pensinger fled residence. solely on change his of heart after he was He returned to his own home his where caught. wife saw him covered in blood. Forensic suggested Payton either Ill Montgomery stabbed during twelve times jurors Twelve listened Payton’s intercourse, sexual or that he raped her dence in mitigation and determined it lay was while she comatose and bleeding to not sufficient avoid a death from sentence of her wounds. death. judges Twelve carefully examined pen- William Charles did not suffer alty phase instructions and found them to illness; from a mental he not “made constitutionally adequate. judges Six bad” his upbringing; he was not a disagree. Objectively, being who is unrea- generally good person who did one heinous sonable? character; act out of ably and he was

defended competent counsel. On this

record, easily could find that Wil-

liam Charles Payton was a vile human

being who a despicable path chose in life

that culminated in a series of heinous

crimes on morning May EATERIES, INC., Payton changed by Had corpo time of his an Oklahoma trial sentencing? ration; Restaurants, Who knows? Inc., We Fiesta do know that the heard evidence of corporation, Plaintiffs-Ap Oklahoma post-crime religious his conversion. The pellees Appellants, and Cross may conversion have counted for some- it thing, up but was to a two decades COMPANY, J.R. SIMPLOT A Nevada

ago to decide how to value his fortuitous Corporation, Defendant-Appellant epiphany. Certainly, might there have Cross-Appellee. concerning Pay- been substantial doubt sincerity given ton’s timing of his reli- Nos. 02-6063. conversion, gious even if but his commit- sincere, Appeals, United States Court of ment were jury may well very have concluded that Tenth Circuit. such con- matters soul, cerned life. Oct. job [we, today Our tois ask: “Do judges], think that the substantially error jury’s

influenced the decision?” O’Neal v.

McAninch,

Case Details

Case Name: William Charles Payton v. Jeanne Woodford, Warden, William Charles Payton v. Jeanne Woodford, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 20, 2003

Citation: 346 F.3d 1204

Docket Number: 00-99000, 00-99003

Court Abbreviation: 9th Cir.