concurring and dissenting.

“On May 31, 1979, about 1 p.m., the body of Eleanore Frances Buchanan was discovered in the grass near a cul-de-sac off Pine Valley Road, near San Diego. Harry Piper noticed it while walking back to his car from target shooting. The body had no head or hands and was clothed only in a bra, underpants, and socks. ... Terry Buchanan, the victim’s husband, testified that his wife had given birth to a baby boy three weeks before her death and that she was still nursing him on May 30, 1979.” People v. Hamilton, 45 Cal.3d 351, 357-58 , 247 Cal.Rptr. 31 , 753 P.2d 1109 (1988).

For this kidnapping and killing during which Bernard Lee Hamilton brutally took Eleanore Buchanan’s life, Terry Buchanan’s wife, and their son’s mother, Hamilton has been convicted of murder and sentenced to death. I am unable to identify any Constitutional infirmity either in his conviction or his sentence.

I

The Supreme Court has validated the practice of inviting jurors in the penalty phase of a state death penalty case to consider in their deliberations that a sentence of life without possibility of parole is really a sentence of life with possibility of commutation. California v. Ramas, 463 U.S. 992 n. 19 , 103 S.Ct. 3446 n. 19 , 77 L.Ed.2d 1171 (1993). In approving this practice, the Court specifically determined that a jury instruction containing such information is compatible with the Eighth and Fourteenth Amendments. Notwithstanding the Court’s definitive holding on this issue, the majority conclude that providing a jury with such information in this case violates the Constitution, even though the jury was told to disregard that information in arriving at its verdict, and even though the California Supreme Court has analyzed the effect of the admonition to disregard and concluded that it was effective. In so holding the majority rely on arguments made and rejected in Ramos. I do concur in the majority opinion to the extent that it affirms (1) the district court’s denial of the Rule 60(b) motion, and (2) the district court’s denial of relief on the merits of Hamilton’s claims concerning the validity of the underlying convictions. I respectfully dissent, however, from the majority’s decision to reverse the district court’s denial of habeas relief as to Hamilton’s sentence and to remand with instructions to order a new penalty phase for the petitioner. I do so because I am convinced that the majority opinion exceeds our authority under habeas corpus.

*1167 II

A.

My disagreement with the majority’s analysis as to the validity of Hamilton’s death sentence is essentially twofold. First, I believe generally that the majority’s analysis of the disputed commutation instructions is so entangled with concerns about purely state law matters that it trespasses on the Supreme Court’s admonition that “ ‘federal ha-beas corpus relief does not lie for errors of state law.’” Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 480 , 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 , 110 S.Ct. 3092, 3102 , 111 L.Ed.2d 606 (1990)). The question as I see it is only whether the disputed instruction violated Hamilton’s federal Constitutional rights, particularly his Fourteenth Amendment right to due process of law and his rights under the Eighth Amendment, not whether the Briggs Instruction violated the California Constitution, or whether the instruction was completely accurate as to California’s commutation requirements, or what a twice-convicted felon must do to have his sentence commute ed.

Second, I do not believe the disputed jury instruction did violate any of Hamilton’s federal Constitutional rights. The majority opinion is correct that the disputed instruction in this case is different from the Briggs Instruction approved in Ramos. After studying Ramos, however, I do not believe the differences are Constitutionally significant. This is a classic case of differences being insufficient to create a viable legal distinction. However, even if I start from the majority’s position that there is something possibly distracting about part of the disputed instruction, I am unable to conclude that it infringed on Hamilton’s Constitutional rights.

In summary, I respectfully believe the majority opinion inappropriately magnifies state law technicalities into a federal Constitutional infirmity. Compare Fetterly v. Paskett, 997 F.2d 1295 (9th Cir.1993) (allegation of misapplication of state sentencing law held to raise a federal Constitutional issue).

B.

In Boyde v. California, 494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990) the Supreme Court set out the standard by which we evaluate disputed instructions in this context. When an instruction is assailed as ambiguous and subject to an erroneous interpretation, the proper inquiry 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.” Id. at 380 , 110 S.Ct. at 1198 (emphasis added). In so mandating, the Court rejected lesser formulations such as what a reasonable juror “could have” or “would have” done in the shadow of the disputed instruction, as well as whether there was a “ ‘substantial possibility that the jury may have rested its verdict on the “improper ground.” ’ ” Id. at 379, 110 S.Ct. at 1197. Instead, the Court chose a test which Justice Marshall acknowledged in dissent to be “stringent,” albeit unduly so in his judgment. Id. at 387, 110 S.Ct. at 1201 (Marshall, J., dissenting); see also Cupp v. Naughten, 414 U.S. 141, 146 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973) (“ ‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [Constitutional right].’” (quoted in Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 482 , 116 L.Ed.2d 385 (1991); Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974))). In explaining the application of the new test, the Court explicitly repudiated conjecture about the behavior of the jury as a basis for overturning a verdict, evoking the “strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation.” Boyde, 494 U.S. at 380 , 110 S.Ct. at 1198 .

The Court likened its new test to exacting tests applicable to other inquiries:

Id. at 380 n. 4, 110 S.Ct. at 1198 n. 4 (citations omitted). These analogies inform our judgment as we perform our task in this case, as does the Court’s statement that “we ‘have defined the category of infractions that violate “fundamental fairness” very narrowly.’ ” Estelle , — U.S. at -, 112 S.Ct. at 482 (quoting Dowling v. United States, 493 U.S. 342, 352 , 110 S.Ct. 668, 674 , 107 L.Ed.2d 708 (1990)).

C.

In assessing the effect of a challenged jury instruction, the rule is that it “ ‘may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” Boyde, 494 U.S. at 378 , 110 S.Ct. at 1196 (emphasis added) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973)). The majority opinion looks only at part of the charge. Reading the charge as a whole in light of the record convinces me there is no reasonable likelihood the jury applied the challenged instruction in a way that prevented the consideration of Constitutionally relevant evidence. I set forth in an appendix to this opinion the complete charge to the jury. The following excerpts from the jury instructions, many of which are completely ignored in the majority opinion, convince me that the jury focused on the evidence, the mitigating factors, and the aggravating factors, not some extraneous matter:

The Supreme Court has already told us that the first two sentences of the disputed instruction do not offend the Constitution. See California v. Ramos, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983). The Court could find no Constitutional infirmity in telling jurors that a sentence of life without possibility of parole is really a sentence of “life imprisonment with possibility of commutation.” See id. at 1005 n. 19, 103 S.Ct. at 3455 n. 19. The Court concluded: “[T]he Briggs Instruction does not violate any of the substantive limitations this Court’s precedents have imposed on the capital sentencing process. It does not preclude individualized sentencing determinations or consideration of mitigating factors, nor does it impermissibly inject an element too speculative for the jury’s deliberation.” Id. at 1013 , 103 S.Ct. at 3459-60 . If telling a jury about a governor’s power to commute or modify a sentence of life without possibility of parole does not violate the Constitution, I do not understand how adding marginal information about what happens under state law to twice-convicted felons and about minimum incarceration time changes the diagnosis. If anything, the added language the majority opinion finds offensive works in Hamilton’s favor when compared to the basic Briggs Instruction because it adds significant legal impediments to any possibility that Hamilton might ever be freed of a life sentence. In this respect, I agree with our respected colleague on the district court. Judge Brewster said in his impressive 93-page opinion: “Most importantly, the modifications agreed to by the parties improved the unmodified Briggs Instruction from the defense perspective. In this regard, it should be noted that the impetus behind the modification came from petitioner’s trial counsel, who was seeking to mitigate the impact of the unmodified Briggs Instruction.” Hamilton v. Vasquez, Nos. 86-2101-B & 90-0291-B, at 79 (S.D.Cal. Aug. 23, 1991) (order denying petitions for writ of habeas corpus) (emphasis added).

There is an interesting twist to this issue. On remand from the United States Supreme Court in the Ramos case, the California Supreme Court held that the Briggs Instruction violated California’s constitution. People v. Ramos, 37 Cal.3d 136, 153 , 207 Cal.Rptr. 800 , 689 P.2d 430 (1984), cert. denied, 471 U.S. 1119 , 105 S.Ct. 2367 , 86 L.Ed.2d 266 (1985). In his second appearance before the California Supreme Court, Hamilton then argued on the basis of the new Ramos decision that the use of the now-defunct Briggs Instruction in his case should entitled him.to a new penalty phase trial. Not so, responded Justice Mosk for the same court that had recently rejected the Briggs Instruction. Why? Because language in the disputed instruction in Hamilton’s case, unlike the Briggs Instruction in Ramos, told the jurors not to consider commutation or modification of any life without possibility of parole sentence. In answer to Hamilton’s argument that the admonitory supplemental language did not cure the state law problem created by the now-defunct Briggs Instruction, but rather led the jurors to indulge in irrelevant and improper speculation, the California Supreme Court tendered a good and sufficient answer which the majority opinion rebuffs in its analysis: “The clear meaning of the plain words of the admonition ... refutes this argument.” People v. Hamilton, 45 Cal.3d 351, 375 , 247 Cal.Rptr. 31 , 753 P.2d 1109 (1988), cert. denied, 488 U.S. 1047 , 109 S.Ct. 879 , 102 L.Ed.2d 1002 (1989). Not only does this answer make sense on its face, but it is consistent with the longstanding principle neglected in the majority opinion that jurors are presumed to follow admonitory instructions given by the court unless the information they are ordered to disregard posed a “substantial threat” to a defendant’s Constitutional rights. See Bruton v. United States, 391 U.S. 123, 137 , 88 S.Ct. 1620, 1628 , 20 L.Ed.2d 476 (1968). See also Estelle, — U.S. at - -, 112 S.Ct. at 483-84 (relying on limiting language to “guard[ ] against possible misuse of [an] instruction”). Informed by the Supreme Court’s decision and analysis in California v. Ramos, I do not find such a sub *1170 stantial threat in this case. The prosecutor’s isolated remark during argument does not change this analysis. I agree with Judge Brewster that the remark was of no moment. See Boyde, 494 U.S. at 384 , 110 S.Ct. at 1200 (arguments of counsel do not generally decrease impact of jury instructions).

The opinion of the California Supreme Court notwithstanding, the majority opinion claims the prosecutor requested the jury be told “to consider the Governor’s power of commutation” and Hamilton’s “eligibility] for parole” (emphasis added). This claim is misleading. State law controlling at the time of trial required the judge to give the Briggs Instruction to the jury. The prosecution expressly asked the trial judge to tell the jurors not to consider this subject when determining Hamilton’s punishment. More importantly, however, there is simply no Constitutional infirmity in “inviting capital sentencing juries to consider the commutation power in its sentencing decisions.” Ramos, 463 U.S. at 998 n. 8, 103 S.Ct. at 3451 n. 8. This is not my claim; it is the precise holding of the Supreme Court in Ramos. Footnote 8 of Justice O’Connor’s opinion makes this point irrefutable. Even if the prosecutor had asked the jury to consider the Governor’s commutation power, no federal Constitutional right would have been implicated.

Nevertheless, it is not true, as the majority opinion claims, that “the jury was invited to speculate that the only way it could avoid Hamilton’s likely release was to sentence him to death.” On this point, I respectfully believe the majority opinion simply refuses to acknowledge the full language of the charge.

D.

There is an aspect of this case that may escape my colleagues’ understanding. As Justice Richardson observed in his dissent in People v. Ramos, 30 Cal.3d 553 , 180 Cal.Rptr. 266 , 639 P.2d 908 (1982), rev’d, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983), “jurors already know of the commutation power.” Id., 30 Cal.3d at 604 , 180 Cal.Rptr. 266 , 639 P.2d 908 (Richardson, J., dissenting). This observation was reiterated by Justice O’Connor in California v. Ramos, 463 U.S. 992 , 996 n. 6, 1004 n. 19, 103 S.Ct. 3446 , 3451 n. 6, 3455 n. 19, 77 L.Ed.2d 1171 (1983). This perception of public awareness about commutation is both accurate and important in understanding the pivotal issue in this case, and it distinguishes this case from Bru-ton, where the concern was related to confessions and admissions, not matters of common knowledge.

The commutation power was the subject of great public debate in California during the late 1970s, a debate that culminated in a 1978 voter death penalty initiative popularly known as the Briggs Initiative. What happened in this case is simple: the jurors were appropriately told not to consider something they probably all knew about, the Governor’s power to alter a murderer’s sentence. The trial judge, in an apparent attempt to eliminate possible trouble on appeal, wisely tried to eliminate the commutation factor from consideration. This admonition is akin to telling jurors not to use information they may have read in the newspapers in arriving at a verdict, an admonition that occurs daily in our courts. Contrary to the approach taken by the majority here, no one could seriously argue that such an admonition about media publicity invites the jurors to do what they are told not to do. Yet in this context such an argument carries the day.

To reiterate, I agree with the California Supreme Court’s bottom-line conclusion: Any problems with the substance of this instruction were erased by its admonitory component.

E.

There is a strong indicator that my analysis is correct: Hamilton’s counsel consented to the instruction and suggested much of its language. Judge Brewster entered a finding of fact that “the parties reached an agreement on a modified Briggs Instruction.” Hamilton , at 77 (order denying petitions for writ of habeas corpus). The majority opinion admits this fact but ignores its implications. It is difficult to conclude from this record that Hamilton’s counsel, who was on the scene and familiar with the case and the evidence, could have believed this instruction would prevent the jury from giving a rea *1171 soned moral response to petitioner’s mitigating evidence, see Perry v. Lynaugh, 492 U.S. 302, 319 , 109 S.Ct. 2934, 2947 , 106 L.Ed.2d 256 (1989), oí that the instruction would create the risk the death penalty would be imposed despite evidence which would call for a life sentence, see Lockett v. Ohio, 438 U.S. 586, 605 , 98 S.Ct. 2954, 2965 , 57 L.Ed.2d 973 (1978). Why is it so clear to the majority that this instruction spelled doom for Hamilton when it was acceptable to his attorney? This question almost answers itself. The instruction was not threatening to those present at the trial because, and I repeat, the jury was told not to consider the information which is now causing all the trouble. Hamilton’s counsel’s performance in this case was extraordinary. In his findings of facts, Judge Brewster adopted the trial judge’s observation: “Mr. Ryan did an excellent job in a most difficult case with a very, very difficult client.” Hamilton , at 41 (order denying petitions for writ of habeas corpus). The trial judge and the trial lawyers were comfortable with the idea that the jurors would do as told. This should tell us something.

F.

The majority opinion persistently does what Boyde tells us not to do: it speculates at every turn. Moreover, the conclusions the majority draws from its speculation are patently inconsistent with the evidentiary dimensions of the case. The opinion says, “[t]he jury spent three days deliberating in the penalty phase, suggesting that the California jury saw this as a close case.” Why so? Why doesn’t the length of deliberations suggest the jurors were conscientious and careful and that they followed the instructions as a whole rather than jumping to a rash conclusion? Why doesn’t it suggest the jurors did consider the seven mitigating witnesses called by Hamilton?

A close ease? Each juror was convinced beyond a reasonable doubt that death was the proper penalty. This hardly sounds like a close case. Any time twelve jurors each agree on an issue, and do so beyond a reasonable doubt, it “suggests” the prosecutor’s case was overwhelming. This is surely so in the light of all the evidence in the record, especially the atrocities Hamilton committed upon Mrs. Eleanore Buchanan, who was still nursing the baby boy to whom she had given birth just three weeks before Hamilton slaughtered her. Mrs. Buchanan’s severed head and hands — removed with both a saw and a knife — have never been found. The terror she must have suffered after being kidnapped and falling prey to Hamilton is unspeakable. Even to the most hard-bitten observer, Hamilton’s atrocities as demonstrated in the record are monstrous. Against this backdrop, the weak mitigating evidence cited by the majority fades into utter insignificance. In actuality, however, it is impossible for us to know what three days of deliberations signifies, if anything. Thus, I would prefer to ignore altogether the length of the deliberations, rather than use it as the basis for what appears to be a makeweight argument.

Conclusion

Applying Ramos, Boyde and Bruton to this case and to the charge to the jury as a whole convinces me that Hamilton’s federal Constitutional rights were not trammelled by the disputed instruction. The majority’s opinion fails to heed the Supreme Court’s lead in Ramos. In particular, I point to the Supreme Court’s statement that “we find unpersuasive the suggestion that the possible commutation of a life sentence must be held constitutionally irrelevant to the sentencing decision and that it is too speculative an element for the jury’s consideration.” Ramos, 463 U.S. at 1001-02 , 103 S.Ct. at 3453-54 . All the majority opinion has succeeded in doing is to show what could have done with the disputed instruction, not that the “jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380 , 110 S.Ct. at 1198 (emphasis added). As I pointed out earlier in this opinion, the “could have” test has been soundly rejected by the Supreme Court.

It is both unnecessary and wrong to use the power of federal habeas corpus to require this case again to go to trial fourteen years after Eleanore Buchanan was butchered. *1172 Trg.miH-.nn was entitled to a fair trial, not a perfect one: he got that to which he was entitled. The record convinces me there is no reasonable likelihood the jury applied the challenged instruction in a way that interfered with a Constitutionally proper determination of his penalty. The conclusion of the California Supreme Court on this point is unassailable. Put another way, even assuming actionable error, I do not believe it “‘“had substantial and injurious effect or influence in determining the jury’s verdict.’”” Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1716 , 123 L.Ed.2d 353 (1993) (citations omitted). Hamilton earned this penalty based on (1) his barbaric conduct, (2) the extreme weight of the aggravating factors, and (3) the insignificance of the mitigating factors in his favor. Thus, I respectfully dissent from that part of the majority’s opinion overturning his sentence.

Appendix

The complete charge to the jury in the penalty phase: