EARLY, WARDEN, et al. v. PACKER

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Syllabus
EARLY, WARDEN, et al. v. PACKER
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 01–1765. Decided November 4, 2002
A California jury convicted respondent of, inter alia, murder and at-
tempted murder. On direct appeal, the State Court of Appeal rejected
his claim that the trial judge coerced his deadlocked jury into continuing
deliberations. The Federal District Court dismissed respondent’s sub-
sequent federal habeas petition but granted a certificate of appealability
on the question whether the state trial judge violated his Fourteenth
Amendment rights by coercing the jury into rendering a verdict. The
Ninth Circuit reversed on that ground and instructed the District Court
to grant the writ.
Held: The Ninth Circuit’s decision exceeds the limits imposed on federal
habeas review by 28 U. S. C. § 2254(d), which forecloses habeas relief on
any claim adjudicated on the merits in state-court proceedings unless
the adjudication of the claim resulted in a decision that (1) was contrary
to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States, or
(2) was based on an unreasonable determination of the facts in light of
the evidence presented in the state-court proceedings. The Ninth Cir-
cuit erred in believing that a state court’s “failure to cite” controlling
Supreme Court precedent renders its decision “contrary to” clearly es-
tablished federal law. Awareness of this Court’s cases is not even re-
quired, so long as neither the reasoning nor the result of the state-court
decision contradicts them. The Ninth Circuit also erred in charging
that the Court of Appeal did not apply the totality-of-the-circumstances
test required by Lowenfield v. Phelps, 484 U. S. 231. Finally, the Ninth
Circuit erred in finding our holdings in Jenkins v. United States, 380
U. S. 445 (per curiam), and United States v. United States Gypsum Co.,
438 U. S. 422, which were based on the Court’s supervisory power over
the federal courts and not on constitutional grounds, applicable to state-
court proceedings. Because the Ninth Circuit erroneously found that
the State Court of Appeal’s decision was contrary to clearly established
Supreme Court law, and because it is at least reasonable to conclude
that there was no jury coercion here, the State Court of Appeal’s deter-
mination to that effect must stand.
Certiorari granted; 291 F. 3d 569, reversed.

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Per Curiam
Per Curiam.
The United States Court of Appeals for the Ninth Circuit
granted habeas relief to respondent William Packer after
concluding that the state trial judge coerced the jury’s ver-
dict. Packer v. Hill, 291 F. 3d 569 (2002). Because this de-
cision exceeds the limits imposed on federal habeas review
by 28 U. S. C. § 2254(d), we grant the petition for certiorari
and reverse.
I
A California jury convicted respondent of one count of
second-degree murder, one count of attempted murder, two
counts of attempted robbery, two counts of assault with a
deadly weapon, and one count of assault with a firearm. It
acquitted him on 10 other counts.
The path to the jury’s guilty verdicts on the murder and
attempted-murder charges was not an easy one. After 28
hours of deliberation, and after the jury had returned sealed
verdict forms on all the other charges, juror Eve Radcliff
sent a note to the judge requesting to be dismissed from the
jury due to “ ‘health problems.’ ” 291 F. 3d, at 573. The
judge then met alone with Radcliff, who explained that “ ‘be-
cause of the seriousness of the charges, I can’t make snap
decisions. . . . I was beginning to feel a little burned out.’ ”
Ibid. The judge asked Radcliff if she could “ ‘hold out just
a little bit longer,’ ” and when Radcliff agreed the judge re-
plied: “ ‘I really appreciate it. Otherwise, they have to start
deliberations all over again with another person.’ ” Ibid.
(emphasis deleted).
The next day, the foreman sent the judge a note stating
that “ ‘we can no longer deliberate,’ ” that “ ‘Eve Radcliff,
does not appear to be able to understand the rules as given
by you,’ ” that “ ‘nearly all my fellow jurors questio[n] her
ability to understand the rules and her ability to reason,’ ”
and that continuing will result in a “ ‘hung jury . . . based
on . . . one person’s inability to reason or desire to be unrea-
sonable.’ ” Ibid. The judge called the jury into the court-

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room, and, in the presence of the attorneys and the defend-
ant, read the note aloud. The judge asked the foreman
whether the jury was deliberating. The foreman replied
that the jurors were “ ‘just having the same conversation
over the same issue time and time again.’ ” Id., at 574.
The judge made the following statement to the jury:
“ ‘The juror has a right to do that, as you all know.
They have a right to disagree with everybody else. But
they do not have a right to not deliberate. They must
deliberate and follow the rules and laws as I state it to
them.’ ” Ibid.
The judge then asked the foreman what the latest vote count
was, but told him not to reveal which side had which number
of votes. The foreman indicated that the last vote count had
been 11 to 1. After the foreman indicated that further de-
liberations would be helpful, the judge gave the following
instruction to the jury:
“ ‘What you do is—like I think what the instructions
were—you apply the facts to the law and you arrive at
a decision. The law is right there, and I think elements
of the law was [sic] given to you in those instructions.
They do this or not do this? Was it proven beyond a
reasonable doubt? This element, this element, this ele-
ment? If they did and you find unanimously they did
that, you must follow the law and find them either guilty
or not guilty of that charge.’ ” Ibid. (emphasis deleted).
At this point, defense counsel objected on the ground that
the judge was improperly “ ‘instructing the jury . . . as to
their manner of deliberation.’ ” Id., at 574–575. The judge
overruled the objection and continued his instruction as
follows:
“ ‘Ladies and Gentlemen, the only thing I’m going to
tell you right now is; once again, I told you, you’ll look
up in the instructions paraphrasing it, I think I’m using

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the correct words: you’re the sole judges of the facts.
You determine the facts. You then apply the law to
those facts as I state it to you, and you must accept and
follow the law. You can’t make up your own law. You
must accept and follow the law as I state it to you.’ ”
Id., at 575.
The judge then excused the jury for the day.
After a day off, deliberations resumed on a Friday. Once
again, Radcliff sent the judge a note asking to be dismissed
from the jury. This time she complained about “ ‘feeling[s]
of distrust and disrespect from the other jurors,’ ” and said
that “ ‘I have reached a point of anger, and I don’t believe I
can be objective.’ ” Ibid. The judge again met with Rad-
cliff in his chambers, outside the presence of attorneys, and
asked her if she was continuing to deliberate. Radcliff re-
sponded that she was “trying,” but not to the satisfaction of
the others. Id., at 576. The judge thanked her and re-
turned her to the jury room. Then the judge met briefly
with the foreman, who assured him that Radcliff was indeed
continuing to deliberate. The jury then resumed its deliber-
ations. The following Tuesday, the jury returned a guilty
verdict on the attempted-murder count, and the next morn-
ing a guilty verdict on the second-degree murder charge.
Respondent appealed his conviction to the Court of Appeal
for the State of California, Second Appellate District, ar-
guing that the comments to Radcliff and to the jury were
coercive and denied him his due process right to a fair and
impartial jury. California law, unlike federal law, prohibits
the giving of a so-called Allen v. United States, 164 U. S. 492
(1896), charge to a deadlocked jury—that is, a charge that
specifically urges the minority jurors to give weight to the
majority’s views. People v. Gainer, 19 Cal. 3d 835, 852, 566
P. 2d 997, 1006 (1977), held that no instruction may be given
which either “(1) encourages jurors to consider the numerical
division or preponderance of opinion of the jury in forming

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or reexamining their views on the issues before them; or
(2) states or implies that if the jury fails to agree the case
will necessarily be retried.”
The state appellate court, applying Gainer, rejected re-
spondent’s claim. “[T]here is nothing improper,” it said, “in
urging the jury to consider the matter further with the view
to reaching an agreement[,] as long as the language used
does not coerce a particular type of verdict. Accordingly,
the comments made and not made by the court to the jury
did not coerce a particular verdict or deny Packer any consti-
tutional rights.” App. to Pet. for Cert. H–15 to H–16 (cita-
tions omitted). The court rejected respondent’s remaining
challenges to his conviction, and the State Supreme Court
declined review.
Respondent sought a writ of habeas corpus from the
United States District Court for the Central District of Cali-
fornia. That court dismissed the petition, but granted a cer-
tificate of appealability on the question whether the state
trial judge violated respondent’s Fourteenth Amendment
rights by coercing the jury into rendering a verdict on the
attempted-murder and second-degree murder counts. The
Court of Appeals for the Ninth Circuit reversed on that
ground, and instructed the District Court to grant the writ
on the murder convictions. California’s Attorney General
has petitioned for certiorari.
II
When a habeas petitioner’s claim has been adjudicated on
the merits in state-court proceedings, 28 U. S. C. § 2254(d)
forecloses relief unless the state court’s adjudication of the
claim:
“(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States; or

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“(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.”
The jury-coercion claim in respondent’s habeas petition is the
same claim rejected on the merits in his direct appeal to the
state appellate court, and the Ninth Circuit correctly recog-
nized that § 2254(d) was therefore applicable. It held that
respondent had established that the decision of the Court of
Appeal was contrary to established federal law for two, and
possibly three, reasons. We think none of them correct.
First, the Ninth Circuit observed that the state court
“failed to cite . . . any federal law, much less the controlling
Supreme Court precedents.” 291 F. 3d, at 578. If this
meant to suggest that such citation was required, it was in
error. A state-court decision is “contrary to” our clearly es-
tablished precedents if it “applies a rule that contradicts the
governing law set forth in our cases” or if it “confronts a set
of facts that are materially indistinguishable from a decision
of this Court and nevertheless arrives at a result different
from our precedent.” Williams v. Taylor, 529 U. S. 362,
405–406 (2000). Avoiding these pitfalls does not require ci-
tation of our cases—indeed, it does not even require aware-
ness of our cases, so long as neither the reasoning nor the
result of the state-court decision contradicts them. The
Ninth Circuit’s disapproval of the Court of Appeal’s failure
to cite this Court’s cases is especially puzzling since the state
court cited instead decisions from the California Supreme
Court that impose even greater restrictions for the avoidance
of potentially coercive jury instructions. Compare People v.
Gainer, supra, at 852, 566 P. 2d, at 1006, with Allen v. United
States, supra, at 501.
Second, the Ninth Circuit charged that the Court of Ap-
peal “failed to apply the totality of the circumstances test as
required by Lowenfield [v. Phelps, 484 U. S. 231 (1988)].”
That was so, the Ninth Circuit concluded, because it “simply
mentioned three particular incidents in its analysis,” “failed

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to consider” other “critical facts,” and “failed to consider the
cumulative impact” of all the significant facts, one of which
it “[did] not even mention in its analysis.” 291 F. 3d, at 578–
579, and n. 10. With regard to the last point: The significant
fact the Ninth Circuit said was not mentioned—that the
judge sent the jury back to its deliberations after learning
that it was split 11 to 1—was in fact succinctly described.
See id., at 579, n. 10. The Court of Appeal focused its analy-
sis upon “three particular incidents” for the entirely accept-
able reason that (as the court said) those incidents consti-
tuted “[t]he essence of Packer’s complaints” regarding juror
coercion. App. to Pet. for Cert. H–15. The opinion set
forth many facts and circumstances beyond those three inci-
dents, including the two “critical facts” that the Ninth Cir-
cuit said it “failed to consider,” 291 F. 3d, at 579, n. 10—the
judge’s knowledge that Radcliff was the sole dissenting juror
prior to his instructing the jury to keep deliberating, App.
to Pet. for Cert. H–14, and the fact that the foreman’s note,
which mentioned Radcliff by name, was read in court, ibid.
The contention that the California court “failed to consider”
facts and circumstances that it had taken the trouble to re-
cite strains credulity. The Ninth Circuit may be of the view
that the Court of Appeal did not give certain facts and cir-
cumstances adequate weight (and hence adequate discus-
sion); but to say that it did not consider them is an exaggera-
tion. There is, moreover, nothing to support the Ninth
Circuit’s claim that the Court of Appeal did not consider the
“cumulative impact” of all the recorded events. Compliance
with Lowenfield v. Phelps, 484 U. S. 231 (1988), does not de-
mand a formulary statement that the trial court’s actions and
inactions were noncoercive “individually and cumulatively.”
It suffices that that was the fair import of the Court of Ap-
peal’s opinion.
Third and last, the Ninth Circuit faulted the state appel-
late court for stating that “ ‘there is nothing improper in urg-
ing the jury to consider [the matter] further with the view

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to reaching an agreement as long as the language used does
not coerce a particular type of verdict.’ ” 291 F. 3d, at 579.
The Ninth Circuit found this statement to be “contrary to”
both Jenkins v. United States, 380 U. S. 445 (1965) (per cu-
riam), and United States v. United States Gypsum Co., 438
U. S. 422 (1978), which it construed to prohibit pressing the
jurors to arrive at some verdict, not just “ ‘a particular type
of verdict.’ ” 291 F. 3d, at 579. Neither Jenkins nor Gyp-
sum Co. is relevant to the § 2254(d)(1) determination, since
neither case sets forth a rule applicable to state-court pro-
ceedings. Jenkins and Gypsum Co. reversed convictions
based on jury instructions given in federal prosecutions, and
neither opinion purported to interpret any provision of the
Constitution. That alone would be enough to defeat a claim
that their application to state-court proceedings is “clearly
established.” Lowenfield v. Phelps, supra, at 239, n. 2 (cita-
tion omitted), however, removed any lingering doubt regard-
ing these cases’ application to state convictions when it
stated: “[O]ur ruling in Jenkins v. United States was based
on our supervisory power over the federal courts, and not on
constitutional grounds. The Jenkins Court cited no provi-
sion of the Constitution, but rather relied upon other cases
involving the exercise of supervisory powers.” (The same
was true of Gypsum Co.) Jenkins and Gypsum Co. are off
the table as far as § 2254(d) is concerned, and the Ninth Cir-
cuit erred by relying on those nonconstitutional decisions.
Having determined that the Court of Appeal “failed to
apply” clearly established Supreme Court law, 291 F. 3d,
at 579 (a phrase which the opinion repeatedly and errone-
ously substitutes for the more demanding requirement of
§ 2254(d)(1): that the decision be “contrary to” clearly estab-
lished Supreme Court law), the Ninth Circuit then proceeded
to address the question “whether [the Court of Appeal’s] de-
cision constituted error and if so whether the error had a
substantial or injurious effect on the verdict.” Ibid. But
that inquiry would have been proper only if the Ninth Circuit

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had first found (pursuant to the correct standard) that the
California court’s decision was “contrary to” clearly estab-
lished Supreme Court law—which it did not and could not.
By mistakenly making the “contrary to” determination and
then proceeding to a simple “error” inquiry, the Ninth Cir-
cuit evaded § 2254(d)’s requirement that decisions which are
not “contrary to” clearly established Supreme Court law can
be subjected to habeas relief only if they are not merely erro-
neous, but “an unreasonable application” of clearly estab-
lished federal law, or based on “an unreasonable determina-
tion of the facts” (emphasis added). Even if we agreed with
the Ninth Circuit majority (Judge Silverman dissented) that
there was jury coercion here, it is at least reasonable to con-
clude that there was not, which means that the state court’s
determination to that effect must stand.
* * *
The judgment of the Ninth Circuit is reversed.
It is so ordered.