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

TALLMAN, Circuit Judge,

dissenting in part, joined by Circuit Judges KOZINSKI, TROTT, FERNANDEZ, and T.G. NELSON:

Today, six judges of this court announce that the legal conclusion reached by seven of their colleagues 1 (plus five justices of the California Supreme Court) is not only wrong, but objectively unreasonable in light of clearly established federal law. According to the six judges in the majority, those twelve judges were so off-the-mark in their analyses of United States Supreme Court precedent that their shared legal conclusion — -that Payton’s constitutional rights were not violated by the “unadorned” factor (k) instruction— must be deemed objectively unreasonable. I respectfully dissent. 2

I

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1218, (AEDPA) significantly limited the power of the federal bench to grant a state prisoner’s petition for habeas corpus. Post AEDPA, the successful ha-beas applicant must convince the federal judge or appellate panel that the state court decision upholding his conviction or sentence is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).

The majority holds that the California Supreme Court unreasonably applied Supreme Court precedent in upholding Pay-ton’s sentence of death. Maj. Op. at 1215. In order for the majority to reach this conclusion, it must have decided that the California Supreme Court’s holding was “more than incorrect or erroneous,” for the “unreasonable application” clause of § 2254(d)(1) means “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166, 1174 , 155 L.Ed.2d 144 (2003). “It is not enough that a federal habeas court, in its independent review of the legal question is left with a firm conviction that the state court was erroneous.” Id. at 1175 (citation and quotation marks omitted); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 , 123 S.Ct. 357 , 154 L.Ed.2d 279 (2002) (“Under § 2254(d)’s ‘unreasonable application’ clause, a federal *1220 habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [United States Supreme Court precedent] incorrectly.”).

Did the California Supreme Court unreasonably apply United States Supreme Court precedent? Certainly not.

The California Supreme Court explicitly acknowledged the Eighth Amendment requirement that a sentencing jury in a capital case consider mitigating character and background evidence. People v. Payton, 3 Cal.4th 1050 , 13 Cal.Rptr.2d 526 , 839 P.2d 1035, 1047-48 (1992). Then, applying the United States Supreme Court’s decision in Boyde v. California, 494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990), the California Supreme Court concluded that it was not “reasonably likely that the jurors believed the law required them to disregard [Payton’s] mitigating evidence.” Id. at 1048. In other.-words, the California Supreme Court determined that Payton’s jury heard and considered Payton’s mitigating evidence before deciding that death was warranted.

The California Supreme Court’s application of the Boyde decision was not only reasonable but correct. In Boyde , the United States Supreme Court upheld against an Eighth Amendment challenge the same CALJIC jury instruction employed in Payton’s penalty trial. The central issue in Boyde , as in Payton’s case, was whether factor (k)’s language limits the jury to consideration of evidence only directly related to the crime. The United States Supreme Court emphatically rejected such a reading. See Boyde, 494 U.S. at 382 , 110 S.Ct. 1190 (“The instruction did not, as petitioner seems to suggest, limit the jury’s consideration to ‘any other circumstance of the crime which extenuates the gravity of the crime.’ The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant’s background and character.”) (emphases in original); see also id. at 383 , 110 S.Ct. 1190 (finding it “improbable that jurors would arrive at an interpretation that [factor (k)] precludes consideration of all non-crime-related evidence”).

Though perhaps it could have, the California Supreme Court did not cite to Boyde and end its analysis. Recognizing that “Boyde does not prevent a defendant from asserting a claim to the effect that prosecutorial argument, or other factors, led the jury to misinterpret factor (k),” Payton, 13 Cal.Rptr.2d 526 , 839 P.2d at 1048 , the court took pains to explain that no misinterpretation occurred here.

First of all, the court stated that the impact of the prosecutor’s erroneous argument (that post-crime mitigating evidence should not be considered by the jury) was “blunted” by defense counsel’s objection and the trial court’s admonition to the jury that counsels’ arguments were not evidence. 3 Payton, 13 Cal.Rptr.2d 526 , 839 *1221 P.2d at 1048 . Second, the court noted that the prosecutor’s own statements lessened the impact of the erroneous argument. “[T]he prosecutor implicitly conceded the relevance of [Payton’s] mitigating evidence by devoting substantial attention to it.” 4 Id. at 1049. Third, and perhaps most significant, the court explained that the jury was unlikely to ignore Payton’s mitigating evidence — regardless of the ambiguous factor (k) instruction or the prosecutor’s arguments — since doing so would have turned the penalty phase “into a virtual charade.” The court stated:

For the jury to have accepted a narrow view of factor (k) in this case would have meant disregarding all of defendant’s mitigating evidence, since the testimony of his eight penalty phase witnesses was all directed to his religious conversion and consequent behavior in prison. Indeed, it would have meant disregarding virtually the entire penalty phase, since the testimony of the prosecution’s two witnesses occupies only eleven pages of the transcript. We think it unlikely, however, as did the high court in Boyde , “that reasonable jurors would believe the court’s instructions transformed all of [Payton’s] ‘favorable testimony into a virtual charade.’ ”

Id. (quoting Boyde, 494 U.S. at 383 , 110 S.Ct. 1190 ). Moreover, the court noted that the trial court “instructed the jury to consider ‘all of the evidence which has been received during any part of the trial’ in determining the penalty.” Id. (quoting Boyde, 494 U.S. at 383 , 110 S.Ct. 1190 ) (emphasis added). The trial court’s admonition to consider all the evidence buoyed the conclusion that the jury considered Payton’s mitigating evidence. Finally, the court noted that Payton’s attorney, “in his own closing argument, strongly reinforced the correct view that [Payton’s] religious conversion was proper mitigating evidence.” Id. Defense counsel argued: “[S]eetion (k) may be awkwardly worded, but it does not preclude or exclude the kind of evidence that was presented. It’s a catch-all phrase. It was designed to include, not exclude, that kind of evidence.” Id.

After this thorough analysis, the California Supreme Court concluded that “it is not reasonably likely that the jury understood the court’s instructions as precluding consideration of defendant’s mitigating evidence.” Id.

How that decision constitutes an unreasonable application of United States Supreme Court precedent is a mystery to *1222 me. The California Supreme Court identified the correct governing rule — that mitigating background and character evidence may not be precluded from the sentencing jury’s consideration — and then decided that the rule was not violated. To reach this decision the California court faithfully followed the dictates of Boyde , the most analogous Supreme Court case.

Apparently Boyde was the wrong case to apply, for the majority tells us that “Boyde does not control this case....” Maj. Op. at 1211. According to the majority, the California Supreme Court was unreasonable because it “did not give proper effect to clearly established Supreme Court cases such as Skipper [v. South Carolina, 476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986),] and Penry [v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989),] that are controlling here.” Id.

Neither Skipper nor Penry supports the proposition that the California Supreme Court erred, let alone unreasonably applied clearly established federal law. Both cases are plainly distinguishable from the ease at bar. In Skipper, the trial court excluded as irrelevant defense witnesses who would have testified that the defendant had “made a good adjustment” while in prison. 476 U.S. 1, 3 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986). Payton, in contrast, was not precluded from calling such character witnesses. In fact, Payton called eight witnesses who all testified that Payton had discovered God while in jail.

Penry, at least, has somewhat similar facts to this case. There the defendant produced mitigating evidence of his mental retardation and abused childhood but was still sentenced to death. Like Payton, Penry argued that his constitutional rights were violated by inadequate jury instructions, which effectively precluded the jury from considering his mitigating evidence. The instructions posed three questions for the jury to consider: (1) “Did Penry act deliberately when he murdered [the victim]?” (2) “Is there a probability that he will be dangerous in the future?” (3) “Did he act unreasonably in response to provocation?” 492 U.S. at 320 , 109 S.Ct. 2934 . If the jury answered all three questions in the affirmative, state law required the trial court to impose a sentence of death. Id. at 310 , 109 S.Ct. 2934 .

According to the Supreme Court, none of these instructions provided the jury “with a vehicle for expressing its ‘reasoned moral response’ to [Penry’s mitigating] evidence in rendering its sentencing decision.” Id. at 328 , 109 S.Ct. 2934 . None of the questions allowed the jury to take into account Penry’s mental retardation or past child abuse. The first instruction asked the jurors to decide whether Penry acted “deliberately.” Id. at 322 , 109 S.Ct. 2934 . However, as the Court noted:

Personal culpability is not solely a function of a defendant’s capacity to act “deliberately.” A rational juror ... could have concluded ... that [Penry] deliberately killed [the victim] to escape detection. Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and because of his history of childhood abuse, that same juror could also conclude that Penry was less “morally culpable than defendants who have no such excuse,” but who acted “deliberately” as that term is commonly understood.

Id. at 322-23 , 109 S.Ct. 2934 (internal quotation marks and citation omitted).

The second question, asking whether Penry would be dangerous in the future, also precluded the jury from considering Penry’s mitigating evidence. In fact, Pen-ry’s mental retardation and childhood abuse suggested that he would pose a continuing threat to society. Id. at 324 , 109 *1223 S.Ct. 2934 (“Penry’s mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.”). The final question asked whether Penry’s response to the provocation of the victim was unreasonable. The Court held that this instruction similarly did not allow the jury to consider Penry’s mitigating evidence because “Pen-ry’s mental retardation and arrested emotional development ... would not necessarily diminish the ‘unreasonableness’ of his conduct....” Id.

Unlike the instructions in Penry, which on their face precluded the jury from considering the defendant’s mitigating evidence, the instructions here allowed Pay-ton’s jury to consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Cal.Penal Code § 190.3(k) (1978) (emphasis added). In Boyde — the case the majority desperately wants to ignore — the United States Supreme Court held that “there is not a reasonable likelihood that Boyde’s jurors interpreted the [unadorned factor (k) instruction] to prevent consideration of mitigating evidence of background and character.” 494 U.S. at 381 , 110 S.Ct. 1190 . Post-Boyde, one cannot argue that the unadorned factor (k) instruction is constitutionally deficient on its face as were the instructions given in Penry. Penry does not control this case. And it certainly does not suggest that the California Supreme Court unreasonably applied United States Supreme Court precedent when it extended Boyde to post-crime mitigation evidence. 5

Why does the majority rely on cases such as Penry and Skipper while discounting Boyde , a' case almost directly on point? 6 The reason must be that Boyde suggests a different result than the one the majority wants to reach. True, Boyde concerned “pre-crime” mitigation evidence whereas this case concerns “post-crime” mitigation evidence. But once one acknowledges, as the Supreme Court did in Boyde , that factor (k)’s text allows for consideration of evidence beyond the crime itself, there is no logical reason to believe that post-crime character strengths are any less capable of extenuating the gravity of the crime than pre-crime character strengths.

Moreover, as both the Boyde Court and the majority’s opinion here recognize, factor (k) allows jurors to consider a defendant’s character. And that is basically what Payton’s attorney tried to show during the penalty phase — that Payton had undergone a character transformation after being jailed. Witnesses for Payton stated that he turned away from his former evil ways and toward God; he no longer sought to harm and abuse, stab and rape women; instead, he sought to help his *1224 fellow male inmates. Payton presented a significant amount of evidence to that effect, and the jury listened to it. We must presume the jury considered it. As the Boyde Court noted:

Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.

494 U.S. at 380-81 , 110 S.Ct. 1190 . Unfortunately for Payton, the jury either did not believe this miracle on the cellbloek or did not value it much in comparison to the horrific crimes he committed.

Perhaps I am wrong and the majority is correct that Boyde is distinguishable from this case because it concerned pre-crime mitigation evidence. But even so, I am at a loss to understand how the California Supreme Court unreasonably applied any United States Supreme Court precedent. The pre-crime/post-crime mitigating evidence dichotomy offered by the majority is the majority’s own untenable invention— not that of the United States Supreme Court. AEDPA commands that we show more respect for our counterparts in the California judiciary. We do not have the right to ignore AEDPA, however much our personal sense of justice urges us to overturn Payton’s sentence. We are not Congress. We are not the United States Supreme Court.

Reasonable minds might disagree as to whether Payton’s sentence was based on constitutionally adequate jury instructions, especially considering the prosecutor’s erroneous arguments to the jury. But that is not the question before us. For us to grant Payton’s petition, the California Supreme Court’s decision must have been objectively unreasonable, which means “more than incorrect or erroneous.” Andrade, 538. U.S. 63, 123 S.Ct. at 1174. Under this standard it was not. Boyde— as well as Penry and Skipper — gave the California Supreme Court plenty of latitude to reach the decision that it reasonably made. The California Supreme Court is just as qualified as we are to distinguish and apply United States Supreme Court precedent. The majority’s “readiness to attribute error is inconsistent with the presumption that state courts know and follow the law.” Visciotti, 537 U.S. at 24 , 123 S.Ct. 357 .

II

We turn to the question of harmless error, which the majority hastily jettisons. The prosecutor may have been wrong in urging the jury to disregard the defendant’s post-arrest claim of religious conversion, but we must not forget the factual context in which the jury rendered its decision. In the wee hours of the morning of May 26, 1980, William Charles Payton arrived at the Garden Grove, California, home of Patricia Pensinger. Payton, who had once been a boarder in Pensinger’s home, found Pensinger awake and working on a cross-word puzzle in the kitchen. He informed her that he was experiencing car trouble. Pensinger graciously welcomed Payton into her home and offered him some beer, which he drank while talking with Pensinger until about 4:50 a.m. During their conversation, Pamela Montgomery, a boarder temporarily residing at Pensinger’s home, entered the kitchen. Pensinger introduced her to Payton. Montgomery, who was staying with Pen-singer while her husband was on duty with the National Guard, filled a glass with water, then left the kitchen and returned to her bedroom. Payton asked Pensinger if he could sleep on the living room couch and Pensinger said he could.

*1225 While everyone else in the house was fast asleep, Payton repaid Pensinger for her hospitality by waking her with two blows to her back, stabbing her forty times on her face, neck, back and chest, and stabbing her ten-year-old son, Blaine, twenty-three times in the face, neck and back. Miraculously, both Pensinger and her son survived. Pamela Montgomery was not so lucky. Her body was found after Payton fled the Pensinger residence. He returned to his own home where his wife saw him covered in blood. Forensic evidence suggested either that Payton stabbed Montgomery twelve times during sexual intercourse, or that he raped her while she lay comatose and bleeding to death from her wounds.

William Charles Payton did not suffer from a mental illness; he was not “made bad” by his upbringing; he was not a generally good person who did one heinous act out of character; and he was ably defended by competent counsel. On this record, the jury could easily find that William Charles Payton was a vile human being who chose a despicable path in life that culminated in a series of heinous crimes on the morning of May 26, 1980.

Had Payton changed by the time of his trial and sentencing? Who knows? We do know that the jury heard evidence of his post-crime religious conversion. The conversion may have counted for something, but it was up to a jury two decades ago to decide how to value his fortuitous epiphany. Certainly, there might have been substantial doubt concerning Pay-ton’s sincerity given the timing of his religious conversion, but even if his commitment were sincere, the jury may very well have concluded that such matters concerned Payton’s soul, not his life.

Our job today is to ask: “Do [we, as judges], think that the error substantially influenced the jury’s decision?” O’Neal v. McAninch, 513 U.S. 432, 436 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995). Common sense tells us the answer is no. Abstract legal discussions are important in the development of the law, but so is the ability to look at the impact of those abstract decisions in the context of the real world. Any legal errors in this ease were harmless in relation to the acts committed by the- man who stood before the jury and asked it to mitigate his sentence based solely on his change of heart after he was caught.

Ill

Twelve jurors listened to Payton’s evidence in mitigation and determined it was not sufficient to avoid a sentence of death. Twelve judges carefully examined the penalty phase instructions and found them to be constitutionally adequate. Six judges disagree. Objectively, who is being unreasonable?

. See 299 F.3d 815, 830 (9th Cir.2002) (en banc) (Tallman, J., dissenting in part, joined by Judges Kozinski, Trott, Fernandez, and T.G. Nelson); 258 F.3d 905 , 910 (9th Cir.2001) (Rymer, J., joined by Gould, J.)

. I concur in the court's decision not to disturb the underlying conviction and to reject most of Payton’s challenges to both his conviction and sentence. Maj. Op. at n. 1. No one supports Payton's argument that he received ineffective assistance of counsel at either the guilt or penalty stages of trial. Even though defense counsel did not present any witnesses, not a single member of this en banc panel believes that Payton was prejudiced during the guilt phase in light of the overwhelming evidence against him. Nor does a single judge believe “there is a reasonable probability that, absent [any errors of defense counsel], the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland v. Washington, 466 U.S. 668, 695 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

. In closing argument the prosecutor incorrectly stated that factor (k) "doesn’t refer to anything after the fact or later,” whereupon the trial court immediately admonished the jury that comments made by counsel were argument, not evidence. I do not understand why we should not accord this standard admonishment the respect we normally afford it in non-capital cases. Jurors are presumed to follow such admonitions absent specific proof that they did not. See Weeks v. Angelone, 528 U.S. 225, 234 , 120 S.Ct. 727 , 145 L.Ed.2d 111 (2000).

The prosecutor’s arguments were also of concern in Boyde , and the Supreme Court stated:

[Arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the *1221 law. Arguments of counsel which misstate the law are subject to objection and to correction by the court. This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made.

Boyde, 494 U.S. at 384-85 , 110 S.Ct. 1190 (citations omitted).

. The prosecutor certainly erred by arguing that the jury had not heard "any legal evidence in mitigation.” But for the majority of his closing, the prosecutor did what he should have done and argued not that jurors could not consider Payton’s religious conversion but that they should not value it much. The prosecutor argued that the religious conversion would not seem to "lessen the gravity of the offense”; that the defense evidence was offered "to win [the jury’s] sympathy”; that Payton's new-found religion could not undo his bad acts from the past; and that while Payton appealed to the jurors’ mercy, he had shown none to his victims. The prosecutor also implicitly acknowledged that the evidence presented by the defense counted for something when he stated “[i]f you want to distribute a thousand points over the factors, 900 would have to go to what he did to Mrs. Montgomery.”

. Other cases cited by the majority, such as Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), are also distinguishable. In Eddings , the trial court heard mitigating evidence of the defendant’s violent upbringing and emotional disturbance but improperly decided that such evidence could not be considered as a matter of law. 455 U.S. at 109 , 102 S.Ct. 869 . In Lockett , the Court held that the Ohio death penalty statute was unconstitutional because of "[t]he limited range of mitigating circumstances [provided in the statute] which may be considered by the sentencer . 438 U.S. at 608 , 98 S.Ct. 2954 .

. Though when Boyde is helpful to the majority’s argument, it is cited and applied. See Maj. Op. at 1213-1214 (explaining that the California Supreme Court’s conclusion regarding the impact of the prosecutor’s argument that factor (k) precluded post-crime mitigation evidence "was an unreasonable application of Boyde ”).