CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 03-1039.Argued November 10, 2004--Decided March 22, 2005

In the penalty phase of respondent Payton's trial following his conviction on capital murder and related charges, his counsel presented witnesses who testified that, during the one year and nine months Payton had been incarcerated since his arrest, he had made a sincere commitment to God, participated in prison Bible study and a prison ministry, and had a calming effect on other prisoners. The trial judge gave jury instructions that followed verbatim the text of a California statute, setting forth 11 different factors, labeled (a) through (k), to guide the jury in determining whether to impose a death sentence or life imprisonment. The last such instruction, the so-called factor (k) instruction, directed jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." In his closing, the prosecutor offered jurors his incorrect opinion that factor (k) did not allow them to consider anything that happened after the crime. Although he also told them several times that, in his view, they had not heard any evidence of mitigation, he discussed Payton's evidence in considerable detail and argued that the circumstances and facts of the case, coupled with Payton's prior violent acts, outweighed the mitigating effect of Payton's religious conversion. When the defense objected to the argument, the court admonished the jury that the prosecutor's comments were merely argument, but it did not explicitly instruct that the prosecutor's interpretation was incorrect. Finding the special circumstance of murder in the course of rape, the jury recommended that Payton be sentenced to death, and the judge complied. The California Supreme Court affirmed. Applying Boyde v. California, 494 U. S. 370, which had considered the constitutionality of the identical factor (k) instruction, the state court held that, considering the context of the proceedings, there was no reasonable likelihood that the jury believed it was required to disregard Payton's mitigating evidence. The Federal District Court disagreed and granted Payton habeas relief, ruling also that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) did not apply. The en banc Ninth Circuit affirmed and, like the District Court, held that AEDPA did not apply. On remand from this Court in light of Woodford v. Garceau, 538 U. S. 202, the Ninth Circuit purported to decide the case under the deferential standard AEDPA mandates. It again affirmed, concluding that the California Supreme Court had unreasonably applied Boyde in holding the factor (k) instruction was not unconstitutionally ambiguous in Payton's case. The error, the court determined, was that the factor (k) instruction did not make it clear to the jury that it could consider the evidence concerning Payton's postcrime religious conversion and the prosecutor was allowed to urge this erroneous interpretation.

Held: The Ninth Circuit's decision was contrary to the limits on federal habeas review imposed by AEDPA. Pp. 7-13.

Full Text of Opinion