BROWN, WARDEN v. PAYTON

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BROWN, WARDEN v. PAYTON
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 instruc-
tions 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 grav-
ity 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 fac-
tor (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 com-
ments were merely argument, but it did not explicitly instruct that the
prosecutor’s interpretation was incorrect. Finding the special circum-
stance of murder in the course of rape, the jury recommended that Pay-
ton be sentenced to death, and the judge complied. The California Su-
preme 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

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134 BROWN v. PAYTON
Syllabus
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 concern-
ing Payton’s postcrime religious conversion and the prosecutor was al-
lowed to urge this erroneous interpretation.
Held: The Ninth Circuit’s decision was contrary to the limits on federal
habeas review imposed by AEDPA. Pp. 141–147.
(a) AEDPA provides that, when a habeas petitioner’s claim has been
adjudicated on the merits in state court, a federal court may not grant
relief unless the state court’s adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly es-
tablished Federal law, as determined by the Supreme Court of the
United States.” 28 U. S. C. § 2254(d)(1). A state-court decision is con-
trary to this Court’s clearly established precedents if it applies a rule
that contradicts the governing law set forth in this Court’s cases, or if
it confronts a set of facts that is materially indistinguishable from a
decision of this Court but reaches a different result. E. g., Williams v.
Taylor, 529 U. S. 362, 405. A state-court decision involves an unreason-
able application of this Court’s clearly established precedents if the state
court applies such precedents to the facts in an objectively unreasona-
ble manner. E. g., ibid. These conditions have not been established.
P. 141.
(b) In light of Boyde, the California Supreme Court cannot be said to
have acted unreasonably in declining to distinguish between precrime
and postcrime mitigating evidence. The California Supreme Court
read Boyde as establishing that factor (k)’s text was broad enough to
accommodate Payton’s postcrime mitigating evidence, but the Ninth
Circuit held that Boyde’s reasoning did not control in this case because
Boyde concerned precrime, not postcrime, mitigation evidence. How-
ever, Boyde held that factor (k) directed consideration of any circum-
stance that might excuse the crime, see 494 U. S., at 382, and it is not
unreasonable to believe that a postcrime character transformation could
do so. Pp. 141–143.
(c) Even were the Court to assume that the California Supreme Court
was incorrect in concluding that the prosecutor’s argument and remarks
did not mislead the jury into believing it could not consider Payton’s
mitigation evidence, the state court’s conclusion was not unreasonable,
and is therefore just the type of decision that AEDPA shields on habeas
review. The state court’s conclusion was an application of Boyde to
similar but not identical facts. Considering the whole context of the
proceedings, it was not unreasonable for the state court to determine

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Opinion of the Court
that the jury most likely believed that the mitigation evidence, while
within the factor (k) instruction’s reach, was simply too insubstantial
to overcome the arguments for imposing the death penalty; nor was
it unreasonable for the state court to rely upon Boyde to support its
analysis. Pp. 143–147.
346 F. 3d 1204, reversed.
Kennedy, J., delivered the opinion of the Court, in which O’Connor,
Scalia, Thomas, and Breyer, JJ., joined. Scalia, J., filed a concurring
opinion, in which Thomas, J., joined, post, p. 147. Breyer, J., filed a con-
curring opinion, post, p. 148. Souter, J., filed a dissenting opinion, in
which Stevens and Ginsburg, JJ., joined, post, p. 149. Rehnquist, C. J.,
took no part in the decision of the case.
A. Natalia Cortina, Deputy Attorney General of Califor-
nia, argued the cause for petitioner. With her on the briefs
were Bill Lockyer, Attorney General, Manuel M. Medeiros,
State Solicitor General, Robert R. Anderson, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant At-
torney General, Steven T. Oetting, Supervising Deputy At-
torney General, and Melissa A. Mandel, Deputy Attorney
General.
Dean R. Gits argued the cause for respondent. With him
on the brief were Maria E. Stratton, Mark R. Drozdowski,
and Rosalie L. Rakoff.*
Justice Kennedy delivered the opinion of the Court.
The United States Court of Appeals for the Ninth Circuit,
convening en banc, granted habeas relief to respondent
William Payton. It held that the jury instructions in the
penalty phase of his trial for capital murder did not permit
consideration of all the mitigation evidence Payton pre-
sented. The error, the court determined, was that the gen-
eral mitigation instruction did not make it clear to the jury
that it could consider evidence concerning Payton’s post-
crime religious conversion and the prosecutor was allowed
*Kent S. Scheidegger and Charles L. Hobson filed a brief for the Crimi-
nal Justice Legal Foundation as amicus curiae urging reversal.

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to urge this erroneous interpretation. We granted the peti-
tion for certiorari, 541 U. S. 1062 (2004), to decide whether
the Ninth Circuit’s decision was contrary to the limits on
federal habeas review imposed by 28 U. S. C. § 2254(d). We
now reverse.
I
In 1980, while spending the night at a boarding house, Pay-
ton raped another boarder, Pamela Montgomery, and then
used a butcher knife to stab her to death. Payton proceeded
to enter the bedroom of the house’s patron, Patricia Pen-
singer, and to stab her as she slept aside her 10-year-old son,
Blaine. When Blaine resisted, Payton started to stab him
as well. Payton’s knife blade bent, and he went to the
kitchen to retrieve another. Upon the intervention of other
boarders, Payton dropped the second knife and fled.
Payton was arrested and tried for the first-degree murder
and rape of Pamela Montgomery and for the attempted mur-
ders of Patricia and Blaine Pensinger. Payton presented no
evidence in the guilt phase of the trial and was convicted on
all counts. The trial proceeded to the penalty phase, where
the prosecutor introduced evidence of a prior incident when
Payton stabbed a girlfriend; a prior conviction for rape; a
prior drug-related felony conviction; and evidence of jail-
house conversations in which Payton admitted he had an
“urge to kill” and a “severe problem with sex and women”
that caused him to view all women as potential victims
to “stab . . . and rape.” People v. Payton, 3 Cal. 4th 1050,
1058, 839 P. 2d 1035, 1040 (1992) (internal quotation marks
omitted).
Defense counsel concentrated on Payton’s postcrime be-
havior and presented evidence from eight witnesses. They
testified that in the year and nine months Payton spent in
prison since his arrest, he had made a sincere commitment to
God, participated in prison Bible study classes and a prison
ministry, and had a calming effect on other prisoners.

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Before the penalty phase closing arguments, the judge
held an in-chambers conference with counsel to discuss jury
instructions. He proposed to give—and later did give—an
instruction which followed verbatim the text of a California
statute. Cal. Penal Code Ann. § 190.3 (West 1988). The in-
struction set forth 11 different factors, labeled (a) through
(k), for the jury to “consider, take into account and be guided
by” in determining whether to impose a sentence of life im-
prisonment or death. 1 Cal. Jury Instr., Crim., No. 8.84.1
(4th rev. ed. 1979).
The in-chambers conference considered in particular the
last instruction in the series, the so-called factor (k) instruc-
tion. Factor (k) was a catchall instruction, in contrast to
the greater specificity of the instructions that preceded it.
As set forth in the statute, and as explained to the jury, it
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.” Cal. Penal Code Ann. § 190.3
(West 1988). (The statute has since been amended.)
Defense counsel objected to the instruction and asked that
it be modified to direct the jury, in more specific terms, to
consider evidence of the defendant’s character and back-
ground. The prosecution, on the other hand, indicated that
in its view factor (k) was not intended to encompass evidence
concerning a defendant’s background or character. The
court agreed with defense counsel that factor (k) was a gen-
eral instruction covering all mitigating evidence. It de-
clined, however, to modify the wording, in part because the
instruction repeated the text of the statute. In addition, the
court stated: “I assume you gentlemen, as I said, in your
argument can certainly relate—relate back to those factors
and certainly can argue the defendant’s character, back-
ground, history, mental condition, physical condition; cer-
tainly fall into category ‘k’ and certainly make a clear argu-
ment to the jury.” App. 59.

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The judge prefaced closing arguments by instructing the
jury that what it would hear from counsel was “not evidence
but argument” and “[you] should rely on your own recollec-
tion of the evidence.” Id., at 62. In his closing, the prose-
cutor offered jurors his opinion that factor (k) did not allow
them to consider anything that happened “after the [crime]
or later.” Id., at 68. The parties do not now dispute that
this was a misstatement of law. The defense objected to the
comment and moved for a mistrial, which the trial court de-
nied. The court admonished the jury that the prosecutor’s
comments were merely argument, but it did not explicitly
instruct the jury that the prosecutor’s interpretation was in-
correct. Id., at 69–70.
Although the prosecutor again told the jury several times
that, in his view, the jury had not heard any evidence of
mitigation, he proceeded to argue that the circumstances and
facts of the case, coupled with Payton’s prior violent acts,
outweighed the mitigating effect of Payton’s newfound
Christianity. Id., at 70. He discussed the mitigation evi-
dence in considerable detail and concluded by urging that
the circumstances of the case and Payton’s prior violent acts
outweighed his religious conversion. Id., at 75–76. In his
closing, defense counsel argued to the jury that, although it
might be awkwardly worded, factor (k) was a catchall in-
struction designed to cover precisely the kind of evidence
Payton had presented.
The trial court’s final instructions to the jury included the
factor (k) instruction, as well as an instruction directing the
jury to consider all evidence presented during the trial. Id.,
at 94. The jury found the special circumstance of murder in
the course of committing rape and returned a verdict recom-
mending a death sentence. The judge sentenced Payton to
death for murder and to 21 years and 8 months for rape and
attempted murder.
On direct appeal to the California Supreme Court, Payton
argued that his penalty phase jury incorrectly was led to

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believe it could not consider the mitigating evidence of his
postconviction conduct in determining whether he should re-
ceive a sentence of life imprisonment or death, in violation
of the Eighth Amendment of the U. S. Constitution. Lockett
v. Ohio, 438 U. S. 586, 602–609 (1978) (plurality opinion).
The text of the factor (k) instruction, he maintained, was
misleading, and rendered more so in light of the prosecu-
tor’s argument.
In a 5-to-2 decision, the California Supreme Court rejected
Payton’s claims and affirmed his convictions and sentence.
3 Cal. 4th 1050, 839 P. 2d 1035 (1992). Applying Boyde v.
California, 494 U. S. 370 (1990), which had considered the
constitutionality of the same factor (k) instruction, the state
court held that in the context of the proceedings there was
no reasonable likelihood that Payton’s jury believed it was
required to disregard his mitigating evidence. 3 Cal. 4th, at
1070–1071, 839 P. 2d, at 1048. Payton sought review of the
California Supreme Court’s decision here. We declined to
grant certiorari. Payton v. California, 510 U. S. 1040 (1994).
Payton filed a petition for a writ of habeas corpus in the
United States District Court for the Central District of Cali-
fornia, reiterating that the jury was prevented from consid-
ering his mitigation evidence. The District Court held that
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, did not apply to Payton’s petition
because he had filed a motion for appointment of counsel be-
fore AEDPA’s effective date, even though he did not file the
petition until after that date. The District Court considered
his claims de novo and granted the petition.
On appeal to the Court of Appeals for the Ninth Circuit, a
divided panel reversed. Payton v. Woodford, 258 F. 3d 905
(2001). The Court of Appeals granted Payton’s petition for
rehearing en banc and, by a 6-to-5 vote, affirmed the District
Court’s order granting habeas relief. Payton v. Woodford,
299 F. 3d 815 (2002). The en banc panel, like the District
Court, held that AEDPA did not govern Payton’s petition.

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It, too, conducted a de novo review of his claims, and con-
cluded that postcrime mitigation evidence was not encom-
passed by the factor (k) instruction, a view it found to have
been reinforced by the prosecutor’s arguments.
The State petitioned for certiorari. Pursuant to Wood-
ford v. Garceau, 538 U. S. 202 (2003), which held that a re-
quest for appointment of counsel did not suffice to make
“pending” a habeas petition filed after AEDPA’s effective
date, we granted the State’s petition, Woodford v. Payton,
538 U. S. 975 (2003), and remanded to the Court of Appeals
for reconsideration of its decision under AEDPA’s deferential
standards. See Williams v. Taylor, 529 U. S. 362 (2000).
On remand, the en banc panel affirmed the District Court’s
previous grant of habeas relief by the same 6-to-5 vote.
Payton v. Woodford, 346 F. 3d 1204 (CA9 2003). In light of
Garceau, the Court of Appeals purported to decide the case
under the deferential standard AEDPA mandates. It con-
cluded, however, that the California Supreme Court had un-
reasonably applied this Court’s precedents in holding the fac-
tor (k) instruction was not unconstitutionally ambiguous in
Payton’s case.
The Court of Appeals relied, as it had in its initial decision,
on the proposition that Boyde concerned precrime, not post-
crime, mitigation evidence. Boyde, in its view, reasoned
that a jury would be unlikely to disregard mitigating evi-
dence as to character because of the long-held social belief
that defendants who commit criminal acts attributable to a
disadvantaged background may be less culpable than defend-
ants who have no such excuse. As to postcrime mitigating
evidence, however, the Court of Appeals concluded that
“there is reason to doubt that a jury would similarly consider
post-crime evidence of a defendant’s religious conversion and
good behavior in prison.” 346 F. 3d, at 1212. It cited no
precedent of this Court to support that supposition.
In addition, it reasoned that unlike in Boyde the prosecu-
tor in Payton’s case misstated the law and the trial court did

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not give a specific instruction rejecting that misstatement,
relying instead on a general admonition that counsel’s argu-
ments were not evidence. These two differences, the Court
of Appeals concluded, made Payton’s case unlike Boyde. 346
F. 3d, at 1216. In its view, the factor (k) instruction was
likely to have misled the jury and it was an unreasonable
application of this Court’s cases for the California Supreme
Court to have concluded otherwise.
II
AEDPA provides that, when a habeas petitioner’s claim
has been adjudicated on the merits in state-court proceed-
ings, a federal court may not grant relief unless the state
court’s adjudication of the claim “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su-
preme Court of the United States.” 28 U. S. C. § 2254(d)(1).
A state-court decision is contrary to this Court’s 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 is materially indistinguishable from a decision
of this Court but reaches a different result. Williams v.
Taylor, supra, at 405; Early v. Packer, 537 U. S. 3, 8 (2002)
(per curiam). A state-court decision involves an unreason-
able application of this Court’s clearly established precedents
if the state court applies this Court’s precedents to the facts
in an objectively unreasonable manner. Williams v. Taylor,
supra, at 405; Woodford v. Visciotti, 537 U. S. 19, 24–25
(2002) (per curiam). These conditions for the grant of fed-
eral habeas relief have not been established.
A
The California Supreme Court was correct to identify
Boyde as the starting point for its analysis. Boyde involved
a challenge to the same instruction at issue here, factor (k).
As to the text of factor (k), Boyde established that it does

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not limit the jury’s consideration of extenuating circum-
stances solely to circumstances of the crime. See 494 U. S.,
at 382. In so holding, we expressly rejected the suggestion
that factor (k) precluded the jury from considering evidence
pertaining to a defendant’s background and character be-
cause those circumstances did not concern the crime itself.
Boyde instead found that factor (k), by its terms, directed
the jury to consider any other circumstance that might ex-
cuse the crime, including factors related to a defendant’s
background and character. We held:
“The [factor (k)] 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 charac-
ter.” Ibid. (emphasis in original).
The California Supreme Court read Boyde as establishing
that the text of factor (k) was broad enough to accommodate
the postcrime mitigating evidence Payton presented. Peo-
ple v. Payton, 3 Cal. 4th, at 1070, 839 P. 2d, at 1048. The
Court of Appeals held Boyde’s reasoning did not control Pay-
ton’s case because Boyde concerned precrime, not postcrime,
mitigation evidence. 346 F. 3d, at 1211–1212.
We do not think that, in light of Boyde, the California
Supreme Court acted unreasonably in declining to distin-
guish between precrime and postcrime mitigating evidence.
After all, Boyde held that factor (k) directed consideration
of any circumstance that might excuse the crime, and it is
not unreasonable to believe that a postcrime character trans-
formation could do so. Indeed, to accept the view that such
evidence could not because it occurred after the crime, one
would have to reach the surprising conclusion that remorse
could never serve to lessen or excuse a crime. But remorse,
which by definition can only be experienced after a crime’s

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commission, is something commonly thought to lessen or ex-
cuse a defendant’s culpability.
B
That leaves respondent to defend the decision of the Court
of Appeals on grounds that, even if it was at least reasonable
for the California Supreme Court to conclude that the text
of factor (k) allowed the jury to consider the postcrime evi-
dence, it was unreasonable to conclude that the prosecutor’s
argument and remarks did not mislead the jury into believ-
ing it could not consider Payton’s mitigation evidence. As
we shall explain, however, the California Supreme Court’s
conclusion that the jury was not reasonably likely to have
accepted the prosecutor’s narrow view of factor (k) was an
application of Boyde to similar but not identical facts. Even
on the assumption that its conclusion was incorrect, it was
not unreasonable, and is therefore just the type of decision
that AEDPA shields on habeas review.
The following language from Boyde should be noted at
the outset:
“We think the proper inquiry in such a case is whether
there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence. . . .
Jurors do not sit in solitary isolation booths parsing in-
structions for subtle shades of meaning in the same way
that lawyers might. Differences among them in inter-
pretation of instructions may be thrashed out in the de-
liberative 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 380–381 (footnote omitted).
Unlike in Boyde the prosecutor here argued to jurors
during his closing that they should not consider Payton’s mit-
igation evidence, evidence which concerned postcrime as op-

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posed to precrime conduct. Because Boyde sets forth a gen-
eral framework for determining whether a challenged in-
struction precluded jurors from considering a defendant’s
mitigation evidence, however, the California Supreme Court
was correct to structure its own analysis on the premises
that controlled Boyde. The Boyde analysis applies here,
and, even if it did not dictate a particular outcome in Payton’s
case, it refutes the conclusion of the Court of Appeals that
the California Supreme Court was unreasonable.
The prosecutor’s mistaken approach appears most promi-
nently at three different points in the penalty phase. First,
in chambers and outside the presence of the jury he argued
to the judge that background and character (whether of pre-
crime or postcrime) was simply beyond the ambit of the in-
struction. Second, he told the jurors in his closing state-
ment that factor (k) did not allow them to consider what
happened “after the [crime] or later.” App. 68. Third,
after defense counsel objected to his narrow view, he argued
to the jury that it had not heard any evidence of mitigation.
Id., at 70. Boyde, however, mandates that the whole context
of the trial be considered. And considering the whole con-
text of the trial, it was not unreasonable for the state court
to have concluded that this line of prosecutorial argument
did not put Payton’s mitigating evidence beyond the jury’s
reach.
The prosecutor’s argument came after the defense pre-
sented eight witnesses, spanning two days of testimony
without a single objection from the prosecution as to its rele-
vance. As the California Supreme Court recognized, like in
Boyde, for the jury to have believed it could not consider
Payton’s mitigating evidence, it would have had to believe
that the penalty phase served virtually no purpose at all.
Payton’s counsel recognized as much, arguing to the jury
that “[t]he whole purpose for the second phase [of the] trial
is to decide the proper punishment to be imposed. Every-
thing that was presented by the defense relates directly to

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that.” App. 88. He told the jury that if the evidence Pay-
ton presented was not entitled to consideration, and there-
fore “all the evidence we presented [would not be] applicable,
why didn’t we hear any objections to its relevance?” Ibid.
The prosecutor was not given an opportunity to rebut de-
fense counsel’s argument that factor (k) required the jury to
consider Payton’s mitigating evidence.
For his part, the prosecutor devoted specific attention to
disputing the sincerity of Payton’s evidence, stating that “ev-
erybody seems to get religion in jail when facing the death
penalty” and that “[s]tate prison is full of people who get
religion when they are in jail.” Id., at 74. Later, he inti-
mated the timing of Payton’s religious conversion was sus-
pect, stating “he becomes a newborn Christian, after he’s in
custody” after “he gets caught.” Ibid. As the California
Supreme Court reasonably surmised, this exercise would
have been pointless if the jury believed it could not consider
the evidence.
Along similar lines, although the prosecutor characterized
Payton’s evidence as not being evidence of mitigation, he de-
voted substantial attention to discounting its importance as
compared to the aggravating factors. He said:
“The law in its simplicity is that the aggravating—if the
aggravating factors outweigh the mitigating, the sen-
tence the jury should vote for should be the death pen-
alty. How do the factors line up? The circumstances
and facts of the case, the defendant’s other acts showing
violence . . . , the defendant’s two prior convictions line
up against really nothing except [the] defendant’s new-
born Christianity and the fact that he’s 28 years old.
This is not close. You haven’t heard anything to miti-
gate what he’s done. If you wanted to distribute a
thousand points over the factors, 900 would have to go to
what he did to [the victim], and I really doubt if [defense
counsel] would dispute that breakdown of the facts.”
Id., at 76.

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Indeed, the prosecutor characterized testimony concerning
Payton’s religious conversion as “evidence” on at least four
separate occasions. Id., at 68, 70, 73. In context, it was not
unreasonable for the state court to conclude that the jury
believed Payton’s evidence was neither credible nor sufficient
to outweigh the aggravating factors, not that it was not evi-
dence at all.
To be sure, the prosecutor advocated a narrow interpreta-
tion of factor (k), an interpretation that neither party accepts
as correct. There is, however, no indication that the prose-
cutor’s argument was made in bad faith, nor does Payton
suggest otherwise. In addition, the first time the jury was
exposed to the prosecutor’s narrow and incorrect view of fac-
tor (k), it had already heard the entirety of Payton’s mitigat-
ing evidence. Defense counsel immediately objected to the
prosecutor’s narrow characterization, and the trial court,
noting at a side bar that one could “argue it either way,”
admonished the jury that “the comments by both the prose-
cution and the defense are not evidence. You’ve heard the
evidence and, as I said, this is argument. And it’s to be
placed in its proper perspective.” Id., at 69–70.
The trial judge, of course, should have advised the jury
that it could consider Payton’s evidence under factor (k), and
allowed counsel simply to argue the evidence’s persuasive
force instead of the meaning of the instruction itself. The
judge is, after all, the one responsible for instructing the
jury on the law, a responsibility that may not be abdicated
to counsel. Even in the face of the trial court’s failure to
give an instant curative instruction, however, it was not
unreasonable to find that the jurors did not likely believe
Payton’s mitigation evidence beyond their reach. The jury
was not left without any judicial direction. Before it began
deliberations as to what penalty was appropriate, the court
instructed it to consider all evidence received “during any
part of the trial in this case, except as you may be hereafter
instructed,” id., at 94, and it was not thereafter instructed

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147 Cite as: 544 U. S. 133 (2005)
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to disregard anything. It was also instructed as to factor
(k) which, as we held in Boyde, by its terms directs jurors
to consider any other circumstance that might lessen a de-
fendant’s culpability.
Testimony about a religious conversion spanning one year
and nine months may well have been considered altogether
insignificant in light of the brutality of the crimes, the prior
offenses, and a proclivity for committing violent acts against
women. It was not unreasonable for the state court to de-
termine that the jury most likely believed that the evidence
in mitigation, while within the reach of the factor (k)
instruction, was simply too insubstantial to overcome the
arguments for imposing the death penalty; nor was it unrea-
sonable for the state court to rely upon Boyde to support its
analysis. Even were we to assume the “ ‘relevant state-
court decision applied clearly established federal law errone-
ously or incorrectly,’ ” Lockyer v. Andrade, 538 U. S. 63, 76
(2003) (quoting Williams v. Taylor, 529 U. S., at 411), there
is no basis for further concluding that the application of our
precedents was “objectively unreasonable,” Lockyer, supra,
at 76. The Court of Appeals made this last mentioned as-
sumption, and it was in error to do so. The judgment of the
Ninth Circuit is reversed.
It is so ordered.
The Chief Justice took no part in the decision of this
case.
Justice Scalia, with whom Justice Thomas joins,
concurring.
I join the Court’s opinion, which correctly holds that the
California Supreme Court’s decision was not “contrary to”
or “an unreasonable application of ” our cases. 28 U. S. C.
§ 2254(d)(1). Even if our review were not circumscribed by
statute, I would adhere to my view that limiting a jury’s
discretion to consider all mitigating evidence does not violate

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148 BROWN v. PAYTON
Breyer, J., concurring
the Eighth Amendment. See Walton v. Arizona, 497 U. S.
639, 673 (1990) (Scalia, J., concurring in part and concurring
in judgment).
Justice Breyer, concurring.
In my view, this is a case in which Congress’ instruction
to defer to the reasonable conclusions of state-court judges
makes a critical difference. See 28 U. S. C. § 2254(d)(1).
Were I a California state judge, I would likely hold that Pay-
ton’s penalty-phase proceedings violated the Eighth Amend-
ment. In a death case, the Constitution requires sentencing
juries to consider all mitigating evidence. See, e. g., Penry
v. Lynaugh, 492 U. S. 302, 319 (1989). And here, there
might well have been a “reasonable likelihood” that Payton’s
jury interpreted factor (k), 1 Cal. Jury Instr., Crim.,
No. 8.84.1(k) (4th rev. ed. 1979), “in a way that prevent[ed]”
it from considering “constitutionally relevant” mitigating ev-
idence—namely, evidence of his postcrime religious conver-
sion. Boyde v. California, 494 U. S. 370, 380 (1990).
Unlike Boyde, the prosecutor here told the jury repeat-
edly—and incorrectly—that factor (k) did not permit it to
take account of Payton’s postcrime religious conversion.
See post, at 154–155, 159–160 (Souter, J., dissenting).
Moreover, the trial judge—also incorrectly—did nothing to
correct the record, likely leaving the jury with the impres-
sion that it could not do that which the Constitution says it
must. See ante, at 146 (majority opinion); post, at 159–160.
Finally, factor (k) is ambiguous as to whether it encompassed
Payton’s mitigation case. Factor (k)’s text focuses on evi-
dence that reduces a defendant’s moral culpability for com-
mitting the offense. And evidence of postcrime conversion
is less obviously related to moral culpability than is evidence
of precrime background and character. See Boyde, supra,
at 382, n. 5 (suggesting a distinction between precrime and
postcrime evidence). For all these reasons, one could con-
clude that the jury here might have thought factor (k) barred

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its consideration of mitigating evidence, even if the jury in
Boyde would not there have reached a similar conclusion.
Nonetheless, in circumstances like the present, a federal
judge must leave in place a state-court decision unless the
federal judge believes that it is “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
§ 2254(d)(1). For the reasons that the Court discusses, I
cannot say that the California Supreme Court decision fails
this deferential test. I therefore join the Court’s opinion.
Justice Souter, with whom Justice Stevens and
Justice Ginsburg join, dissenting.
From a time long before William Payton’s trial, it has been
clear law under the Eighth and Fourteenth Amendments
that a sentencing jury in a capital case must be able to con-
sider and give effect to all relevant mitigating evidence a
defendant offers for a sentence less than death. The prose-
cutor in Payton’s case effectively negated this principle in
arguing repeatedly to the jury that the law required it to
disregard Payton’s mitigating evidence of postcrime reli-
gious conversion and rehabilitation. The trial judge utterly
failed to correct these repeated misstatements or in any
other way to honor his duty to give the jury an accurate
definition of legitimate mitigation. It was reasonably likely
in these circumstances that the jury failed to consider Pay-
ton’s mitigating evidence, and in concluding otherwise, the
Supreme Court of California unreasonably applied settled
law, with substantially injurious effect. The Court of Ap-
peals was correct, and I respectfully dissent.
I
At the time the Supreme Court of California took up Pay-
ton’s direct appeal of his death sentence for homicide, it was
settled law that a capital defendant has a plenary right to
present evidence going to any aspect of his character, back-

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150 BROWN v. PAYTON
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ground, or record, as well as to any circumstance particular
to the offense, that might justify a sentence less than death,
Penry v. Lynaugh, 492 U. S. 302 (1989); Eddings v. Okla-
homa, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586
(1978), including evidence of the defendant’s behavior after
the offense, Skipper v. South Carolina, 476 U. S. 1, 4–5
(1986). The law was equally explicit that the sentencer may
not refuse to consider any evidence in mitigation, or be pre-
cluded from giving it whatever effect it may merit. Penry
v. Lynaugh, supra, at 318–320; Eddings v. Oklahoma, supra,
at 113–114.
When Payton was tried, California’s sentencing law was
not well designed to satisfy the State’s obligation to provide
the sentencer with a way to give effect to all mitigating evi-
dence including developments after commission of the crime.
Trial courts were generally bound to charge a sentencing
jury to take into account and be guided by a set of legisla-
tively adopted pattern instructions that described relevant
subjects of aggravation and mitigation in terms of 11 “fac-
tors.” These factors ran the gamut from a defendant’s age
and state of mind at the time of the crime to a qualified
catchall at the end: “ ‘(k) [a]ny other circumstance which ex-
tenuates the gravity of the crime even though it is not a legal
excuse for the crime.’ ” Boyde v. California, 494 U. S. 370,
373–374, and n. 1 (1990); 1 Cal. Jury Instr., Crim., No. 8.84.1
(4th rev. ed. 1979).
This catchall provision, known as factor (k), was the sub-
ject of Boyde, in which the capital defendant had presented
extensive testimony of favorable character in struggling
against great childhood disadvantages. 494 U. S., at 381–
383. It was understood that the evidence was not open to
the jury’s consideration under any factor except possibly (k),
and the question was whether the instruction to consider
“[a]ny other circumstance which extenuates the gravity of
the crime” adequately conveyed the idea that character was

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151 Cite as: 544 U. S. 133 (2005)
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such a circumstance, even though it was not a fact limited to
the setting of the crime itself.
The Court first laid down the general standard: “whether
there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consider-
ation of constitutionally relevant evidence.” Id., at 380. A
“reasonable likelihood” is more than a mere possibility that
the jury mistook the law, but a defendant “need not establish
that the jury was more likely than not to have been imper-
missibly inhibited by the instruction.” Ibid. A majority of
the Court then concluded on the facts of Boyde’s trial that
there had been no showing that any ambiguity in the instruc-
tion had kept the jury from considering the character evi-
dence. Id., at 383–385.
In support of its application of the general standard in
Boyde’s case, the Court noted that not all of the other factors
in the instruction were tied to the specifics of the crime; the
defendant’s youth at the time of commission could be consid-
ered, for example, along with prior criminal activity and
prior felony record. Id., at 383. It was, moreover, only
natural for the jury to consider evidence of character in the
face of hardships, since society generally holds people less
culpable for bad acts related to disadvantages in life. Id., at
382, and n. 5. The Court found it highly implausible that
the jury would have thought it had to ignore testimony of
such evidence, spanning four days and generating over 400
pages of transcript. Id., at 383–384. The pattern instruc-
tions as read by the judge included the admonition to make
the penalty decision after considering “ ‘all of the evidence
which has been received during any part of the trial,’ ” id.,
at 383 (emphasis deleted), and the prosecutor never claimed
that the testimony was not relevant, id., at 385. Rather,
“the prosecutor explicitly assumed that petitioner’s charac-
ter evidence was a proper factor in the weighing process, but
argued that it was minimal in relation to the aggravating
circumstances.” Ibid.

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152 BROWN v. PAYTON
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II
Payton, too, was sentenced to death by a jury that had
been given a version of the same pattern instructions, includ-
ing factor (k). Both the nature of Payton’s evidence, how-
ever, and the behavior of Payton’s prosecutor contrasted
sharply with their counterparts in Boyde, and in a significant
respect the version of the pattern instructions read to Pay-
ton’s jury differed from the version the Boyde jury heard.
Although the penalty phase of Payton’s trial stretched
over three days, mitigation evidence offered through testi-
mony on Payton’s behalf came in during parts of two half
days. App. 15–54. In the first such session, two witnesses,
one a minister and the other her congregation’s missions di-
rector, said that since the commission of his crimes Payton
had made a “commitment to the Lord” that they believed to
be sincere, id., at 18, 23; that he had demonstrated remorse,
id., at 18; and that he manifested his new faith in Bible study,
writing, and spiritual help to fellow inmates, id., at 22–29.
Because Payton’s remaining witnesses were not available,
the trial judge excused the jury after just “a short day.”
Id., at 31.
Following a weekend break, six witnesses appeared for
Payton, including four former fellow inmates who testified
that he frequently led religious discussions among prisoners,
that he exerted “a very good influence” on others, id., at 34,
and that he “always tr[ied] to help people out,” id., at 39.
See generally id., at 32–44. A fifth witness, a deputy sheriff
at Payton’s jail, corroborated this testimony, id., at 45–48,
and said that he was glad to have Payton at the jail because
he had a calming influence on other inmates, and because he
occasionally informed the authorities of developing problems,
id., at 49. Finally, Payton’s mother testified that she had
seen a change in him during incarceration and believed his
religious conversion was sincere. Id., at 52–54. Thus, Pay-
ton’s evidence went entirely to his postcrime conversion and

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Souter, J., dissenting
his potential for rehabilitation and usefulness; the presenta-
tion of this evidence produced a transcript of only 50 pages.
The trial court sent the case to the jury the next day, after
meeting with the prosecutor and defense counsel to discuss
the charge, including the factor (k) instruction to consider
any other circumstance extenuating the gravity of the crime.
Boyde had not been decided at that point, and defense coun-
sel expressed concern that factor (k) could be understood to
exclude consideration of Payton’s mitigating evidence be-
cause the facts shown “have something to do with his poten-
tial for rehabilitation or his character or his background, but
they don’t have anything to do with the crime itself . . . .”
App. 55. The prosecutor readily agreed with that reading.
He responded that the language of factor (k) was intended
to reach only circumstances extenuating the gravity of the
crime, to the exclusion of character and background. Ibid.
Indeed, the prosecutor maintained that he did not see “any
ambiguity” in factor (k), id., at 57, and that if the legislature
had meant background or character to be considered under
factor (k), it would have said so explicitly, id., at 58.
The trial court agreed with defense counsel that back-
ground and character (including the claimed conversion)
should be subject to consideration under factor (k), but
declined to alter the instruction because it was hesitant to
depart from the statutory text. Id., at 58, 61. Instead, the
judge advised the lawyers that they were free to “argue
[that] the defendant’s character, background, history, mental
condition, physical condition . . . certainly fall into category
‘k’ and certainly make a clear argument to the jury.” Id.,
at 59. After the judge said explicitly that he thought “ ‘k’
is the all encompassing one that includes . . . what you want
added,” id., at 60, defense counsel lobbied one last time for a
more accurate instruction, but was rebuffed:
“[Defense counsel]: My only problem is I think we all
agree that that’s the law, but the jury’s not going to
know.

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154 BROWN v. PAYTON
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“The Court: I agree with you. . . . But I’m going to
deny [your request], and for the reasons stated.” Id.,
at 61.
The trial court then brought in the jury for argument and
charge. When the prosecutor’s closing argument got to the
subject of factor (k), this is what he said to the jury:
“ ‘K’ says any other circumstance which extenuates or
lessens the gravity of the crime. What does that mean?
That to me means some fact—okay?—some factor[s] at
the time of the offense that somehow operates to reduce
the gravity for what the defendant did. It doesn’t refer
to anything after the fact or later. That’s particularly
important here because the only defense evidence you
have heard has been about this new born Christianity.”
Id., at 68.
Payton’s lawyer interrupted, both counsel approached the
bench, and, out of the jury’s hearing, defense counsel moved
for mistrial on the ground that the prosecutor’s statement
was “completely contrary” to the previously agreed interpre-
tation of factor (k). Ibid. When the prosecutor replied
that defense counsel was wrong and that Payton’s mitigating
evidence did not fall within factor (k), id., at 69, the trial
court failed to resolve the matter, saying that “you can argue
it either way,” ibid. Upon return to open court, the judge
instructed the jury that “the comments by both the prosecu-
tion and the defense are not evidence. You’ve heard the evi-
dence and, as I said, this is argument. And it’s to be placed
in its proper perspective.” Id., at 69–70.
The prosecutor then took up exactly where he had left off,
arguing that Payton’s proffered mitigating evidence could
not be considered in the jury’s deliberations:
“Referring back to ‘k’ which I was talking about, any
other circumstance which extenuates or lessens the
gravity of the crime, the only defense evidence you’ve
heard had to do with defendant’s new Christianity and

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155 Cite as: 544 U. S. 133 (2005)
Souter, J., dissenting
that he helped the module deputies in the jail while he
was in custody.
“The problem with that is that evidence is well after
the fact of the crime and cannot seem to me in any way
to logically lessen the gravity of the offense that the
defendant has committed.
“[Defense counsel] will tell you that somehow that be-
coming a newborn Christian, if in fact he really believed
that took place, makes it a less severe crime, but there
is no way that can happen when—under any other cir-
cumstance which extenuates or lessens the gravity of
the crime, refers—seems to refer to a fact in operation
at the time of the offense.
“What I am getting at, you have not heard during
the past few days any legal evidence mitigation. What
you’ve heard is just some jailhouse evidence to win your
sympathy, and that’s all. You have not heard any evi-
dence of mitigation in this trial.” Id., at 70.
After the prosecutor recounted the aggravating circum-
stances and argued for the death penalty, he turned to the
evidence of Payton’s religious conversion, questioned its sin-
cerity, and argued that it did not warrant a sentence less
than death when weighed against the aggravating factors.
Throughout this discussion, he returned to his point that fac-
tor (k) authorizes consideration only of facts as of the time
of the crime. He reminded the jurors again that they had
“heard no evidence of any mitigating factors.” Id., at 73.
And again: “I don’t really want to spend too much time on
[religion] because I don’t think it’s really applicable and I
don’t think it comes under any of the eleven factors.” Ibid.
And again: “You haven’t heard anything to mitigate what
he’s done.” Id., at 76.
With the prosecutor arguing that Payton’s mitigation evi-
dence was not open to consideration under (k) or any other
factor, and with the trial judge sitting on the fence, defense
counsel was left to argue the law himself, stating that “sec-

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156 BROWN v. PAYTON
Souter, J., dissenting
tion (k) may be awkwardly worded, but it does not preclude
or exclude the kind of evidence that was presented. It’s a
catch-all ph[r]ase. It was designed to include, not exclude,
that kind of evidence.” Id., at 88. Defense counsel dis-
cussed the mitigating evidence at some length before con-
cluding that “I think there are a lot of good reasons to keep
Bill Payton alive, an awful lot of good reasons. And that’s
exactly what I think ‘k’ is talking about.” Id., at 92.
The trial court then gave the jury its final instructions:
“In determining the penalty to be imposed on the de-
fendant, you shall consider all of the evidence which has
been received during any part of the trial in this case,
except as you may be hereafter instructed. You shall
consider, take into account and be guided by the follow-
ing factors, [including] . . . (k), [which says] [a]ny other
circumstance which extenuates the gravity of the crime
even though not a legal excuse for the crime. . . .
“After having heard all of the evidence and after hav-
ing heard and considered the argument of counsel, you
shall consider, take into account and be guided by the
applicable factors of aggravating and mitigating circum-
stances upon which you have been instructed.
“If you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you shall impose
a sentence of death.
“However, if you determine that the mitigating cir-
cumstances outweigh the aggravating circumstances,
you shall impose a sentence of confinement in the state
prison for life without the possibility of parole.” Id.,
at 94–96.
The jury returned a death verdict.
III
The failure of the State to provide Payton with a process
for sentencing that respected his clearly established right to

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157 Cite as: 544 U. S. 133 (2005)
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consideration of all mitigating evidence is plain at every step
of the jury’s instruction, starting with the trial court’s reli-
ance on the pattern jury charge adopted by the legislature.
A
It is undisputed that factor (k) was the instruction that
comes closest to addressing the jury’s obligation to consider
Payton’s evidence of postoffense conversion, and the prosecu-
tor’s remarks in the chambers colloquy both demonstrate the
inadequacy of factor (k) to explain that responsibility and
point to the seriousness of the trial court’s failure to give a
group of laypersons an intelligible statement of the control-
ling law. Factor (k) calls on the jury to consider evidence
going to the “gravity of the crime,” a notion commonly un-
derstood as the joint product of intent, act, and consequence:
intentionally shooting a police officer through the heart is
worse than knocking down a pedestrian by careless skate-
boarding. It is coherent with this understanding to say, as
the Court did in Boyde, that evaluating a defendant’s state
of mind at the time of the offense can include consideration
of his general character and the experiences that affected its
development, 494 U. S., at 381–382; as the Court explained,
when society sits in judgment, it does not ignore the early
hardships of those who turn out bad, id., at 382. But it
would be more than a stretch to say that the seriousness
of the crime itself is affected by a defendant’s subsequent
experience. A criminal’s subsequent religious conversion is
not a fact commonly accepted as affecting the gravity of the
crime, and even jurors who could overcome their skepticism
about the sincerity of the conversion claim would see it as
addressed not to the nature of the crime but to other issues
bearing on sentence: the moral argument for executing a de-
fendant who claims to have realized the awfulness of what he
had done, and the practical argument for protecting others in
the future by taking a life of one who claims to have been
transformed. See, e. g., Skipper v. South Carolina, 476

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158 BROWN v. PAYTON
Souter, J., dissenting
U. S., at 4–5. I will assume that a jury instructed by a judge
to consider evidence of postoffense experience that extenu-
ates the gravity of the crime could have given effect to the
instruction, but without such an explanation it would have
been unnatural to think of evidence of later events as affect-
ing the seriousness of an earlier crime.
Indications of the way factor (k) was understood in Cali-
fornia at the time of Payton’s trial, in fact, point this way.
The prosecutor who spoke for the State at the trial repeat-
edly argued to judge and jury that a “circumstance which
extenuates or lessens the gravity of the crime, refers—seems
to refer to a fact in operation at the time of the offense.”
App. 70. The prosecutor held this view in good faith, ante,
at 146 (majority opinion), and, indeed, his view was shared
by the state judiciary; even before Boyde, the Supreme
Court of California had found factor (k) inadequate to re-
quire consideration of all types of mitigating evidence. In
1983, following our discussion in Eddings, that court directed
that factor (k) be adorned in future cases so as to inform the
jury that it may consider “any other ‘aspect of [the] defend-
ant’s character or record . . . that the defendant proffers as
a basis for a sentence less than death.’ ” People v. Easley,
34 Cal. 3d 858, 878, n. 10, 671 P. 2d 813, 826, n. 10 (alterations
in original). And, again before Boyde came down, the Leg-
islature of California amended factor (k) to instruct the jury
to consider “ ‘[a]ny other circumstance which extenuates the
gravity of the crime even though it is not a legal excuse
for the crime [and any sympathetic or other aspect of the
defendant’s character or record [that the defendant offers] as
a basis for a sentence less than death, whether or not related
to the offense for which he is on trial . . . ].’ ” 494 U. S., at
374, n. 2 (quoting 1 Cal. Jury Instr., Crim., No. 8.85(k) (5th
ed. 1988); alterations in original). Without that amend-
ment, any claim that factor (k) called for consideration of a
defendant’s personal development in the wake of his crime

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was simply at odds with common attitudes and the English
language.
B
The next step in the process that failed to give the jury
an intelligible instruction to consider all mitigating evidence
consisted of the prosecutor’s repeated statements telling the
jury to ignore Payton’s conversion evidence because it was
not legally relevant:
“[Defense counsel] will tell you that somehow that be-
coming a newborn Christian, if in fact he really believed
that took place, makes it a less severe crime, but there
is no way that can happen when—under any other cir-
cumstance which extenuates or lessens the gravity of
the crime, refers—seems to refer to a fact in operation
at the time of the offense.
“What I am getting at, you have not heard during
the past few days any legal evidence mitigation. What
you’ve heard is just some jailhouse evidence to win your
sympathy, and that’s all. You have not heard any evi-
dence of mitigation in this trial.” App. 70.
Although the prosecutor’s argument rested on a perfectly
fair reading of the text of the pattern instruction, its effect,
in the absence of any further instruction, was to tell the jury
that it could not consider the conversion evidence as mitigat-
ing. Payton’s lawyer immediately objected. He expressed
his understanding that the trial judge had agreed that con-
sideration of the mitigating evidence was constitutionally re-
quired and meant to let respective counsel argue only about
its probative value, even though the judge himself had re-
fused to address this essential constitutional issue specifi-
cally in any particular instruction. One would reasonably
suppose that the trial judge would have realized that the
prosecutor’s argument put him on the spot, forcing him to
correct the misleading statement of law with an explicit in-
struction that the jury was free to treat the conversion evi-

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160 BROWN v. PAYTON
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dence as mitigating, evaluating its weight as the jury saw fit.
It is, after all, elementary law, federal and state, that the
judge bears ultimate responsibility for instructing a lay jury
in the law. Carter v. Kentucky, 450 U. S. 288, 302–303
(1981); Bollenbach v. United States, 326 U. S. 607, 612–614
(1946); Quercia v. United States, 289 U. S. 466, 469 (1933);
Sparf v. United States, 156 U. S. 51, 102 (1895); People v.
Roberge, 29 Cal. 4th 979, 988, 62 P. 3d 97, 102 (2003); People
v. Beardslee, 53 Cal. 3d 68, 97, 806 P. 2d 1311, 1326 (1991).
But the trial judge did no such thing. Instead, he merely
told the jury that the prosecutor’s argument was not evi-
dence. This instruction cured nothing. The prosecutor’s
objectionable comment was not a statement about evidence
but a statement of law. Telling the jury that a statement of
law was not evidence did nothing to correct its functional
error in misstating the law.
It is true that the prosecutor argued that Payton’s post-
crime evidence was not only beyond the jury’s consideration
legally, but also insufficient to outweigh the aggravating cir-
cumstances. The prosecutor, however, minimized the sig-
nificance even of these brief observations by saying, “I don’t
really want to spend too much time on it because I don’t
think it’s really applicable and I don’t think it comes under
any of the eleven factors.” App. 73. Far from “explicitly
assum[ing]” that the jury’s consideration of the evidence was
proper, Boyde, 494 U. S., at 385, the prosecutor’s comments,
interwoven with his clear statements on the scope of factor
(k), could not have left the listener with any doubt about the
prosecutor’s view of the legal relevance of the evidence.
Nothing could be further from the circumstances in Boyde.
There the prosecutor agreed that the character evidence was
properly subject to the jury’s consideration as mitigating,
even under the ambiguous terms of factor (k). Ibid. The
Boyde jury heard argument about the weight of the evi-
dence, but not a word denying its relevance. Ibid. Indeed,
the Boyde majority specifically distinguished the facts before

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Souter, J., dissenting
it from the facts confronting us here, in disclaiming any sug-
gestion “that prosecutorial misrepresentations may never
have a decisive effect on the jury,” id., at 384; “arguments of
counsel, like the instructions of the court, must be judged in
the context in which they are made,” id., at 385. If the
Boyde majority thus anticipated a case like this one, with a
possibility of substantial prejudice arising from misrepresen-
tation of the law, the Court’s prescience is attributable to
the State’s position in the Boyde argument: the Supervising
Deputy Attorney General of California appearing for the
State in Boyde urged the Court to see that case in a light
favorable to the State, in contrast to Payton’s case, to which
counsel referred by name, as a case in which the prosecutor
had “misled the jurors.” Tr. of Oral Arg. in O. T. 1989,
No. 88–6613, p. 29. Boyde is thus no authority for giving the
State a pass here. The Court is faced with the prosecutor’s
conceded misstatement, ante, at 138 (majority opinion), mis-
leading to the jury, which obliged the trial court, however
“reluctant to strike out on its own” beyond the pattern in-
structions, to “do more than figuratively throw up its hands.”
People v. Beardslee, supra, at 97, 806 P. 2d, at 1326.
C
The final misstep that distinguishes this case from the au-
thority of Boyde is the judge’s charge, which must be under-
stood against the background of the mitigating testimonial
evidence that the jury did, after all, hear. At each stage of
Payton’s appeal and collateral challenge, the State has ar-
gued that it makes no sense to suggest the jury would have
disregarded substantive evidence with no other purpose than
mitigation, when ignoring it would have meant that Payton’s
mitigation witnesses were just putting on a pointless cha-
rade. An argument like this was one of the reasons for af-
firming the conviction in Boyde, supra, at 383, and both the
Supreme Court of California and the majority today rely on
a reprise of it to affirm here, People v. Payton, 3 Cal. 4th

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162 BROWN v. PAYTON
Souter, J., dissenting
1050, 1072, 839 P. 2d 1035, 1049 (1992); ante, at 144 (majority
opinion). This is, however, an argument to be entertained
only with great caution in the best of circumstances, and
while Boyde’s circumstances were good, this is a very differ-
ent case from Boyde.
The need for caution is plain: the constitutional concern
with mitigating evidence is not satisfied by the mere ability
of a defendant to present it. The sentencing body must
have a genuine opportunity to consider it and give effect to
it. Penry v. Lynaugh, 492 U. S., at 320. As the Court said
in Boyde, “[p]resentation of mitigating evidence alone . . .
does not guarantee that a jury will feel entitled to consider
that evidence.” 494 U. S., at 384. For this reason, the
Court has found Eighth Amendment violations in circum-
stances precluding the sentencing body from considering the
defendant’s mitigating evidence, even where the evidence
was extensive and where it accordingly might have been
thought unnatural for the sentencer to disregard it. See,
e. g., Penry v. Johnson, 532 U. S. 782, 788, 803–804 (2001);
Eddings v. Oklahoma, 455 U. S., at 107, 113–114.
What is equally plain is that Boyde is no authority for
thinking the combination of evidence, argument, and charge
passes muster here. Boyde’s mitigation evidence was ex-
tensive enough to take four days and produce over 400 pages
of transcript. It addressed character and hardship, subjects
recognized by the Court as commonly thought relevant to
sentencing, and ignoring it would thus have ignored a large
chunk of intuitively acceptable evidence. Payton’s evidence,
in contrast, required parts of two half days and gener-
ated only 50 pages, addressing a claim of dramatic self-
reformation that most people would treat with considerable
caution. While it would have been unnatural for the jury in
Boyde to feel barred from considering the character evidence
when no lawyer or judge had ever called it irrelevant, Pay-
ton’s jury had plenty of reason to feel itself precluded: the
prosecutor emphatically and repeatedly said that the evi-

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163 Cite as: 544 U. S. 133 (2005)
Souter, J., dissenting
dence did not count as the kind of evidence that could exten-
uate the crime, and the trial judge allowed the prosecutor’s
statements to go uncorrected.
More significant even than those contrasts between Boyde
and the facts here is the difference between the two sets of
instructions from the trial judges. In Boyde, this Court
found it significant that “[t]he jury was instructed that it
‘shall consider all the evidence which has been received dur-
ing any part of the trial of this case.’ ” 494 U. S., at 383
(emphasis added by Boyde majority). Reasonable jurors
could therefore hardly “have felt constrained by the factor
(k) instruction to ignore all of the evidence presented by
[the] petitioner during the sentencing phase.” Id., at 383–
384 (emphasis again supplied by Boyde majority).
Here, however, the instruction was different, a variant
permitted by the legislature’s pattern charge. Here the in-
struction was not simply to consider all the evidence, but
rather, “you shall consider all of the evidence which has been
received during any part of the trial in this case, except as
you may be hereafter instructed.” App. 94. “Hereafter,”
of course, came the instruction to determine the penalty by
applying the 11 enumerated factors, including factor (k). As
to the factor (k) focus on the “gravity of the crime,” the
prosecutor repeatedly had said that evidence of postcrime
conversion was irrelevant, and his mistaken and misleading
statements of law had never been corrected by the trial
judge.
The upshot was this. The jury was told by the judge that
some evidence could be excluded from its consideration.
The judge presumably had some reason to say this. The
only evidence that could reasonably have fallen within the
exception was the evidence the prosecutor had just said was
legally irrelevant, in a statement that was eminently plausi-
ble owing to the language of factor (k) and the subject matter
of the evidence. The jurors could naturally have made sense
of all they had heard by concluding they were required not

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164 BROWN v. PAYTON
Souter, J., dissenting
to scrutinize and discount the conversion evidence if they
found it unpersuasive, but to skip the scrutiny altogether
and ignore the evidence as legally beside the point. This
case is nothing like Boyde.
But even if the case were closer to Boyde than it is, and
even if the course of Payton’s penalty trial were best viewed
the way the majority suggests, that would not satisfy
Boyde’s test. Boyde asks only whether there is a “reason-
able likelihood” that the jury understood an instruction as
foreclosing consideration of the defendant’s mitigating evi-
dence. 494 U. S., at 380. A defendant has no need to show
it is “more likely than not” that the jury misunderstood.
Ibid. Accordingly, even if the best explanation for the jury’s
verdict were the one the majority offers, that would not
resolve Payton’s claim. Identifying the “most likely” inter-
pretation of events at Payton’s trial, ante, at 147 (majority
opinion), falls short of negating the reasonably likely alterna-
tive that the jury believed it could not consider the story of
Payton’s postcrime conversion.
The Court’s oft-repeated conclusion that the state court
did not unreasonably apply Boyde seems to rest on two as-
sumptions. The first is a loose understanding of Boyde as
holding that factor (k) “directs jurors to consider any other
circumstance that might lessen a defendant’s culpability,”
ante, at 147 (majority opinion). The second is that factor
(k) as so understood directs jurors to consider circumstances
that do not excuse a crime or lessen a defendant’s culpability
but nevertheless supply some different (even postcrime) rea-
son to forgo a sentence of death. But Boyde held only that
the factor (k) instruction tells jurors “to consider any other
circumstance that might excuse the crime, which certainly
includes a defendant’s background and character,” 494 U. S.,
at 382 (emphasis deleted). Boyde did not purport to hold
that factor (k) naturally called for consideration of postcrime
changes of fundamental views. It is thus only by broaden-
ing Boyde to sanction a misreading of factor (k), a misreading

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165 Cite as: 544 U. S. 133 (2005)
Souter, J., dissenting
that the prosecutor himself rejected in good faith, that the
Court can find a reasonable application of law in the state
court’s decision. The mistake will unfortunately reverber-
ate even beyond this case, for the majority further obscures
the necessarily inexact distinction between cases that are
merely wrong and cases with objectively unreasonable error.
Cf. Penry v. Johnson, 532 U. S. 782 (finding that a confusing
jury instruction created a reasonable likelihood the jury
would not feel free to consider mitigating evidence, and that
the state court’s contrary conclusion was “objectively unrea-
sonable,” even though the jury heard extensive mitigating
evidence submitted without objection as to relevance, even
though the judge took care to instruct the jury to consider
“ ‘any aspect of the defendant’s character and record or cir-
cumstances of the crime which you believe could make a
death sentence inappropriate,’ ” id., at 790, even though the
prosecutor never questioned the relevance of the evidence
when addressing the jury, and even though both counsel ar-
gued at length to the jury about the weight of the evidence).
IV
By the State’s admission in this case, the prosecutor’s ar-
gument was a “misstatement” of constitutional law. By the
State’s admission in Boyde, the prosecutor here “misled” the
jury. Despite objection by defense counsel, the trial judge
refused to correct the misstatement, which the prosecutor
proceeded to repeat. The judge’s subsequent charge to con-
sider all evidence was subject to a qualification that the jury
could reasonably have understood only as referring to the
mitigation evidence the prosecutor had branded as irrelevant
under a straightforward reading of the pattern instructions.
If a prosecutor had stood before a jury and denied that a
defendant was entitled to a presumption of innocence; if the
judge refused to correct him and failed to give any instruc-
tion on the presumption of innocence; if the judge’s instruc-
tions affirmatively suggested there might not be a presump-

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166 BROWN v. PAYTON
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tion of innocence; would anyone doubt that there was a
reasonable possibility that the jury had been misled? There
is no more room here to doubt the reasonable possibility that
Payton’s jurors failed to consider the postoffense mitigation
evidence that the Constitution required them to consider.
In a case that contrasts with Boyde at every significant step,
the State Supreme Court’s affirmance of Payton’s conviction
can only be seen as an unreasonable misapplication of the
governing federal standard, not mere error. And since Pay-
ton’s death sentence is subject to this reasonable possibility
of constitutional error, since he may die as a consequence,
the effect of the instruction failure is surely substantial and
injurious, Brecht v. Abrahamson, 507 U. S. 619, 638 (1993),
beyond any possible excuse as harmless error.