concurring in part and dissenting in part, joined by KOZINSKI, TROTT, FERNANDEZ & T.G. NELSON, Circuit Judges:
I respectfully dissent from most of the court’s opinion. In Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), the Supreme Court upheld against an Eighth Amendment challenge the same CALJIC jury instruction employed in Payton’s penalty trial. I do not believe the result should be any different in this case because it is not reasonably likely that the prosecutor’s incorrect remarks led jurors to understand the instructions as precluding consideration of all of the defendant’s mitigating evidence, i.e., virtually the entire penalty phase case. Moreover, if there was an error, it was surely harmless.
I base my conclusion on the following factors: (1) The jury was properly admonished by the trial judge on the point that “counsel’s arguments are not evidence and must be judged in the context in which they are made” when the defense objected to the prosecutor’s error and moved for a mistrial; (2) the prosecutor later implicitly conceded in his closing argument that the jury could consider the defendant’s claimed religious conversion although he argued it was entitled to very little weight; (3) defense counsel’s closing argument cured any misimpression the prosecutor might have left; (4) no rebuttal argument was permitted by the trial court; and (5) if the narrow view of Cal.Penal Code § 190.3(k) urged by the prosecutor had been accepted by .the jury it would have necessarily had to ignore all of the penalty phase evidence except for 11 pages of testimony by prosecution witnesses.
In addition, we must remember that Payton’s jailhouse conversion was heard by the jury in its proper context — after Payton was apprehended for raping and murdering one individual and attempting to murder two others. The court’s opinion makes much of one jury instruction and a few erroneous comments by the prosecutor. But it was Payton’s crime — barely described by the majority — for which the jury sentenced him to death.
In the wee hours of the morning of May 26, 1980, William Charles Payton arrived at the Garden Grove, California, home of Patricia Pensinger. Payton, who had once *831been a boarder in Pensinger’s home, found Pensinger awake and working on a crossword puzzle in the kitchen. He informed her he was experiencing car- trouble. Pen-singer graciously welcomed Payton into her home and offered him some beer, which he drank while talking with Pen-singer until about 4:50 a.m. During their conversation, Pamela Montgomery, a boarder temporarily residing at Pensinger’s home, entered the kitchen. Pensinger introduced her to Payton. Montgomery, who was staying with Pensinger while her husband was on duty with the National Guard, filled a glass with water, then left the kitchen and returned to her bedroom. Payton asked Pensinger if he could sleep on the living room couch and Pensinger said he could.
While everyone else in the house was fast asleep, Payton repaid Pensinger for her hospitality by waking her with two blows to her back, stabbing her 40 times on her face, neck, back and chest, and stabbing her ten-year-old son, Blaine, 23 times in the face, neck and back. Miraculously, both Pensinger and her son survived. Pamela Montgomery was not so lucky. Her body was found after Payton fled the Pensinger residence. He returned to his own home where his wife saw him covered in blood. Forensic evidence suggested that Payton stabbed Mrs. Montgomery 12 times either during sexual intercourse, or that he raped her while she lay comatose from her wounds bleeding to death.
Payton’s trial counsel conducted an investigation into Payton’s background and the events of the night of the murder. He consulted with mental health experts. Defense counsel elected not to call any witnesses during the guilt phase of trial, and the jury convicted Payton on all counts. The jury found the special circumstance that Payton had committed aggravated murder while engaged in the commission of rape or attempted commission of rape.
During the penalty phase, the prosecution presented evidence concerning Pay-ton’s jailhouse admission that he had a “severe problem with sex and women,” and that he would “stab them and rape them.” He also admitted that he had previously stabbed a former girlfriend (who survived to testify against him). Defense counsel responded by trotting out eight witnesses to testify that Payton had made a genuine commitment to God after being jailed for the commission of the crimes and while awaiting trial. “Their testimony, taken as at whole, tended to show that Payton had been ‘born again,’ made a sincere commitment to God, and was performing good works in jail.” Op. at 820.
During closing argument, the prosecutor stated that he did not believe Payton’s post-crime religious conversion was “really applicable” or “comes in under any of the eleven [mitigating] factors.” Although the last factor, factor (k), was designed to be a catchall and covered “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,” Cal.Penal Code § 190.3(k) (1978), the prosecutor contended that factor (k) “doesn’t refer to anything after the fact or later.”
The judge admonished the jurors that the arguments of counsel did not constitute evidence and that the jury must consider all of the evidence when determining Payton’s penalty. The jury decided that Payton should be put to death.
The California Supreme Court affirmed the sentence five to two. See People v. Payton, 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (1992), cert. denied, 510 U.S. 1040, 114 S.Ct. 682, 126 L.Ed.2d 649 (1994). Our three-judge panel held that the federal writ of habeas should not issue in this case. But our court en banc today, *832by a slim majority, refuses to recognize the jury verdict, a verdict that was upheld by the California Supreme Court, in Pay-ton’s penalty phase trial, reasoning that (1) the Supreme Court’s decision in Boyde does not dictate the outcome where the defendant sought to admit solely post-crime evidence; (2) the process that the Supreme Court adopted in Boyde for evaluating instructional error leads to the conclusion that there was constitutional error in this case; and (3) the error was not harmless.
Because I disagree with these conclusions and the court’s ultimate holding, I respectfully dissent.
I
I concur in the court’s decision not to disturb the underlying conviction and to reject most of Payton’s challenges to both his conviction and sentence. Slip op. at 10761-62 n. 1. None of our eleven judges supports Payton’s argument that he received ineffective assistance of counsel at either the guilt or penalty stages of trial. Even though defense counsel did not present any witnesses, not a single member of this en banc panel believes that Payton was prejudiced with respect to the guilt phase in light of the overwhelming evidence against him. Nor does a single judge believe “there is a reasonable probability that, absent [any errors of defense counsel], the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
II
The court nonetheless affirms the district court’s grant of a writ of habeas corpus based on instructional error, holding that there is a reasonable likelihood that the jury applied the challenged instruction in a way that prevented the “consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380, 110 S.Ct. 1190; op. at 822. The court’s opinion correctly notes that a year after the jury announced Payton’s death sentence, the California Supreme Court acknowledged that factor (k) might cause juror confusion. See People v. Easley, 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813, 825-26 & n. 10 (1983); op. at 824.1 Our opinion also acknowledges that the United States Supreme Court examined this exact same instruction in a capital case in Boyde and held that the language of the instruction did not violate the Eighth Amendment, see 494 U.S. at 386, 110 S.Ct. 1190, and that there was not a “reasonable likelihood that the jury ... applied the challenged instruction in a way that prevented] the consideration of constitutionally relevant evidence.” Id. at 380, 110 S.Ct. 1190.
Our court first tries to distinguish Pay-ton’s case by limiting the holding in Boyde to the conclusion that “the factor (k) instruction was not ambiguous as applied to pre-crime background and character evidence as long as the trial court provided clarification of its meaning.” Op. at 824 *833(emphasis added). Boyde should not be read so narrowly. The central issue in Boyde, as in Payton’s case, as in any challenge to factor (k), is whether factor (k)’s language limits the jury to consideration of evidence only directly related to the crime. The Supreme Court emphatically rejected such a reading. See Boyde, 494 U.S. at 382, 110 S.Ct. 1190 (“The instruction did not, as petitioner seems to suggest, limit the jury’s consideration to ‘any other circumstance of the crime which extenuates the gravity of the crime.’ The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant’s background and character.”) (emphasis in original); see also id. at 383, 110 S.Ct. 1190 (finding it “improbable that jurors would arrive at an interpretation that [factor (k) ] precludes consideration of all non-crime-related evidence”).2
Just because Boyde’s “disadvantaged background and his character strengths in the face of those difficulties,” 494 U.S. at 382 n. 5, 110 S.Ct. 1190, was the evidence in question in that case does not mean post-crime evidence should be viewed differently. Once one acknowledges, as the Supreme Court did in Boyde, that factor (k)’s text allows for consideration of evidence beyond the crime itself, there is no logical reason to believe that post-crime character strengths are any less capable of extenuating the gravity of the crime than pre-crime character strengths or are any more excluded from a reading of factor (k).
Moreover, as both the Supreme Court in Boyde and our court’s opinion here recognize, factor (k) allows jurors to consider a defendant’s character. And that is basically what defense counsel tried to show during the penalty phase — that Payton had undergone a character transformation after being jailed. He had turned away from his former evil ways and toward God; he no longer sought to harm and abuse, stab and rape women; instead, he sought to help his fellow male inmates. He presented a significant amount of evidence to that effect, and the jury listened to it. We must presume the jury considered it. Unfortunately for Payton, the jury either did not believe this miracle on the cellblock or did not value it much in comparison to the horrific crimes he committed. The court seems unwilling to believe that jurors could easily apply their own common sense in considering what weight to give this defense evidence.
Ill
Assuming arguendo that Boyde’s holding must be limited to pre-crime evidence *834so that the case left open “the question whether, on its face, the unadorned factor (k) instruction is unconstitutionally ambiguous as applied to post-crime evidence!,]” slip op. at 10770, I still would not find constitutional error in this case.
Boyde tells us that when evaluating “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” we must examine the instruction in “the context of the proceedings.” 494 U.S. at 380, 383, 110 S.Ct. 1190. The defense presented no witnesses during the guilt phase of trial, but eight witnesses — Pay-ton’s mother, his pastor, the director of a religious organization that ministered to prisoners, a deputy sheriff, and four inmates — testified during the penalty phase. These individuals testified that after his arrest Payton had genuinely committed himself to God, and, as a result, he had a calming effect on other prisoners.3
In closing argument the prosecutor incorrectly stated that factor (k) “doesn’t refer to anything after the fact or later,” whereupon the trial court immediately admonished the jury that comments made by counsel were argument, not evidence. I do not understand why we should not accord this standard admonishment the respect we normally afford it in non-capital cases. Juries are presumed to follow such admonitions absent specific proof that jurors did not. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
The prosecutor’s arguments were also of concern in Boyde, and the Supreme Court stated:
[Arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. Arguments of counsel which misstate the law are subject to objection and to correction by the court. This is not to say that prose-cutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made.
Boyde, 494 U.S. at 384-85, 110 S.Ct. 1190 (internal citations omitted).
The prosecutor erred again by arguing that the jury had not heard “any legal evidence in mitigation,” but for the majority of his closing, the prosecutor did what he should have done and argued not that jurors could not consider Payton’s religious conversion but that they should not value it much. The prosecutor argued that the religious conversion would not seem to “lessen the gravity of the offense”; that the defense evidence was offered “to win [the jury’s] sympathy”; that Payton’s new-found religion could not undo his bad acts from the past; and that while Payton appealed to the jurors’ mercy, he had not shown any to his victims. The prosecutor also implicitly acknowledged that the evidence presented by the defense counted for something when he stated “[i]f you want to distribute a thousand points over *835the factors, 900 would have to go to what he did to Mrs. Montgomery.”
In its closing, the defense stressed that the jury certainly could consider Payton’s post-crime religion under factor (k) and argued “[i]f that’s not applicable and that therefore all the evidence we presented is not applicable, why didn’t we hear any objections to its relevance?”4 When the prosecutor objected at this point, the court said it would not repeat its admonition. Nor did it allow the prosecution opportunity for closing rebuttal argument.
When delivering the jury instructions, the trial court stated:
In determining the penalty to be imposed on the defendant, 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 following factors, if applicable:
(k), Any other circumstance which extenuates the gravity of the crime even though not a legal excuse for the crime.
(emphasis added).
The court apparently believes the key language in that instruction is not “all of the evidence” but rather “as you may be hereafter instructed” and holds that the combination of this instruction with the prosecutor’s error left the jury on its own to determine whether or not to consider Payton’s post-crime religious conversion. Op. at 825. This hardly seems likely. The jurors heard eight witnesses testify as to Payton’s religious conversion; they were told arguments by counsel were not evidence; they were told to consider all of the evidence; and they were not told to ignore post-crime evidence, or all of the defendant’s evidence. Thus, the instruction effectively told jurors they could consider post-crime evidence under factor (k).5
We presume the jury followed the court’s instructions and considered all of the evidence presented at both phases of trial. See Weeks, 528 U.S. at 234, 120 S.Ct. 727. One may disagree with the jury’s decision, but it is not reasonable to contend that the jury was not in the proper position to render a fully informed ver-*836diet. The effect, if any, of a jailhouse religious conversion on a defendant’s character is a question readily discernible by jurors, who are probably better suited to weigh its value in mitigation than are judges.
IV
Even if we were to assume that an instructional error rising to the level of a constitutional violation occurred in Pay-ton’s case, his is not the case to overturn a jury’s sentence, one that has been affirmed by the California Supreme Court.
Before conducting harmless error analysis, however, I must fault our court’s approach for determining whether an error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). While the court initially states that “the harmless error analysis is a purely legal question that lies outside the realm of fact-finding [so that] we dispense with burdens of proof and presumptions!,]” op. at 827, it quickly forgets this and places the burden on the state. Slip op. at 828 (“Placing the ‘risk of doubt’ on the state is also consistent with the body of jurisprudence that has placed the burden of showing lack of prejudice on the party who would benefit from the constitutional error.”).
While noting that our prior decisions have not been a model of clarity or consistency, we recently clarified that “the reviewing court must determine independently whether a trial error had a substantial and injurious effect, without consideration of burdens of proof.” Mancuso v. Olivarez, 292 F.3d 939, 950 n. 4 (9th Cir.2002) (as amended). It is true that “[w]hen a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury’s verdict,’ that error is not harmless. And, the petitioner must win.” O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (emphasis added). But “grave doubt[ ] is unusual,” id. at 435, 115 S.Ct. 992; normally, there are no burdens. See id. In most cases, the judge simply asks, “Do I, the judge, think that the error substantially influenced the jury’s decision?” Id. at 436, 115 S.Ct. 992.
Whatever problems previously existed with our case law, the court today makes them worse by overruling only those that placed a burden on the petitioner, op. at 828-29 n. 11, without also overruling those that placed a burden on the state absent grave doubt. See, e.g., Keating v. Hood, 191 F.3d 1053, 1062 (9th Cir.1999) (as amended); Fisher v. Roe, 263 F.3d 906, 917 (9th Cir.2001). Only where there is grave doubt do we get to burdens. And there is no need for that in this case.
As previously noted, no judge finds merit in the ineffective assistance of counsel claims even though defense counsel presented no witnesses during the guilt phase and the eight witnesses who testified during the penalty phase focused on Payton’s post-crime conversion. While the court uses this to distinguish Boyde in Payton’s favor by concluding that there is a reasonable likelihood jurors did not consider the evidence offered on Payton’s behalf, what it really indicates is that the defense had hardly anything to offer that could have persuaded a jury to spare Payton’s life. William Charles Payton did not suffer from mental illness; he was not “made bad” by his upbringing; he was not a generally good person who did one heinous act out of character; and he was ably defended by competent counsel. On this record, the jury could easily find that William Charles Payton was a vile human *837being who chose a despicable path in life that culminated in a series of heinous crimes on the morning of May 26, 1980.
Had Payton changed by the time of his trial and sentencing? Who knows? We do know that the jury heard evidence of his post-crime religious conversion. The conversion may have counted for something, but it was up to a jury two decades ago to decide how to value his fortuitous epiphany. Certainly, there might have been substantial doubt concerning Pay-ton’s sincerity given the timing of his religious conversion, but even if the commitment were sincere, the jury may very well have concluded that such matters concerned Payton’s soul, not his life.
The jury heard all of the evidence and determined that Payton should forfeit his life for the life he took and the injuries he inflicted on the surviving victims, who must live with the horrible memories of what he did to them. I believe Payton’s jury, unlike a majority of the court today, had the ability to make a fully informed and incredibly difficult decision as to whether an individual who has been found guilty of a capital offense deserves to die for the awful crimes he committed.6
It is true that in death penalty cases we ask for a higher standard to affirm the sentence, see Coleman v. Calderon, 210 F.3d 1047, 1050 (9th Cir.2000), but that does not mean that a trial must be error-free. No trial is or can ever be perfect; and we can never know for certain that a jury considered all the evidence in reaching a verdict. We try to assure they do and the trial court did so here.
Our job today is to ask: “Do' [we, as judges], think that the error substantially influenced the jury’s decision?” O’Neal, 513 U.S. at 436, 115 S.Ct. 992. Common sense tells us the answer is no. Abstract legal discussions are important in the development of the law, but so is the ability to look at the impact of those abstract decisions in the context of the real world. Any legal errors in this case were harmless in relation to the acts committed by the man who stood before the jury and asked it to mitigate his sentence based solely on his change of heart after he was caught.
V
I fear that as we wrestle with the fate of a defendant facing the ultimate penalty of death, we have elevated form over substance and cloaked our habeas decision in the mantle of a federal constitutional requirement when the Supreme Court told us in Boyde the Constitution contemplates no such thing. In the process, one wonders whether our court has lost its conscience and no longer listens to the silent screams of the victims, who are also entitled to justice; nor considers the impact of its decisions on the safety of our communities, which are equally entitled to protec*838tion from recidivists like William Charles Payton.
I would reverse the district court’s decision to issue the writ of habeas corpus and reinstate the holding as set forth in the opinion of the California Supreme Court and the decision of our three-judge panel.
. Though noting the potential for confusion in the instruction itself, the California Supreme Court reversed the death sentence in EasLey because “the trial court not only failed affirmatively to advise the jury that it could consider as a mitigating factor any aspect of the defendant’s character or background, but it expressly — and inaccurately — informed the juiy that it must not be influenced by sympathy or pity for the defendant.” 196 Cal.Rptr. 309, 671 P.2d at 826 (emphasis in original). The trial court did not commit those errors at Payton's penalty phase trial, and, in fact, specifically told the jury to consider all of the evidence.
. "Extenuate” is defined "[t]o make less severe; to mitigate.” BLACK'S LAW DICTIONARY 604 (7th ed.1999). "Mitigate” is defined as "[t]o make less severe or intense.” Id. at 1018, 196 Cal.Rptr. 309, 671 P.2d 813. It is difficult to argue that a murder is less severe because of either pre-crime or post-crime circumstances pertaining to the murderer. The victim is dead in either case. But under Cal.Penal Code § 190.3, the defense is allowed to present whatever constitutionally relevant evidence it wants to persuade the jury to spare the defendant's life, and the jury may choose to spare the defendant's life based on any evidence it concludes "extenuates the gravity of the crime” even though it is "not a legal excuse for the crime” and even though it does not literally make the crime any less "severe.” As the Supreme Court stated in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), "[a]lthough it is true that [favorable] inferences [drawn from the defendant’s good behavior while in prison] would not relate specifically to petitioner's culpability for the crime he committed, there is no question but that such inferences would be 'mitigating' in the sense that they might serve as a basis for a sentence less than death.” Id. at 4-5, 106 S.Ct. 1669 (citation and quotation omitted). The problem here is that the evidence offered by Payton was unlikely to persuade a jury that it mitigated the awful things that he had done.
. No defense witnesses were excluded from testifying on Payton's behalf, thus distinguishing this case from Skipper v. South Carolina, where the trial court excluded as irrelevant witnesses who would have testified that the defendant had "made a good adjustment” while in prison. 476 U.S. at 3, 106 S.Ct. 1669.
. Defense counsel's rhetorical question speaks for itself. Why, indeed, would the prosecutor not object to the post-crime evidence if it was entirely irrelevant? Even more to the point, why would the trial judge compel the jurors to sit through a parade of eight witnesses if jurors were not allowed to consider their testimony?
. The court in this case accepts what the Supreme Court rejected in Weeks v. Angelone, another capital case in which the jury instructions might not have been as clear as they could have been. In that case, the jury asked the judge whether it had to choose the death penalty if it found that the defendant met one of the criteria that made the death penalty an option. The trial court referred the jury to an instruction that stated that "[i]f the Commonwealth has failed to prove beyond a reasonable doubt at least one of the alternatives [that made the death penalty an option], then you shall fix the punishment of the defendant at life imprisonment.” 528 U.S. at 229-30, 120 S.Ct. 727. The Supreme Court rejected the argument that the trial court had a duty to inform the jury (in part because defense counsel did so in closing argument) that even if it found the defendant eligible for the death penalty it could impose a penalty of life imprisonment. It affirmed the denial of the writ of habeas corpus, stating, "[a]t best, petitioner has demonstrated only that there exists a slight possibility that the jury considered itself precluded from considering mitigating evidence. Such a demonstration is insufficient to prove a constitutional violation under Boyde, which requires the showing of a reasonable likelihood that the jury felt so restrained.” Id. at 236, 120 S.Ct. 727.
. Rather amazingly, the court apparently be- . lieves that it is upholding the right of jurors to determine whether the sentence of death is to be imposed and that the dissent is just second-guessing the genuineness of Payton's religious conversion. Op. at 829-30 n. 12. Nothing could be further from the truth. I fully support the jury verdict in this case and would reinstate it as our three-judge panel did. It is the majority that is recasting Pay-ton's religious commitment — sifting through the record to discover that in high schopl Payton was involved with a church group, thus apparently indicating a lifelong commitment to a religious way of life. Perhaps he was an otherwise pious man who occasionally lapsed to the dark side. The jury applied its common sense in judging the merits of Pay-ton's defense. It is the court’s opinion that is bent on disregarding the penalty that the jury by its verdict believed was appropriate because my colleagues disagree with the jury’s decision.'