dissenting:
This case represents a triumph of law-yering from the bench. While I share some of the court’s evident sympathy for the defendant — whose third strike resulted from the sale of less than one-tenth of one gram of a legal substance to an undercover officer1 — I respectfully dissent from its decision to step into counsel’s shoes and tango its way around the deference we owe to state courts as coordinate expositors of federal law.
I
There is no dispute that Kennedy was entitled to some portion of the transcript from his first trial on these charges. See generally Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). The only issue before the court is whether clearly established Supreme Court precedent requires the State to have provided him with a complete transcript, including opening and closing arguments and a recounting of any preliminary trial motions. The majority cites no Supreme Court case that extends Britt beyond a requirement that a transcript of all testimonial evidence adduced in prior proceedings be made available to indigent defendants; it finds its clearly established Supreme Court precedent not in the U.S. Reports, but in Black’s Law Dictionary. Opinion at 1046-47, 1048.
If this were a direct criminal appeal, I might not necessarily disagree with the court’s interpretation of Britt. But on collateral review, our job is not to divine the best interpretation of an admittedly vague Supreme Court precedent, see United States v. Kirk, 844 F.2d 660, 662 (9th Cir.1988) (“[T]he right to free transcripts is not absolute. The Court in Britt recognized that the ‘outer limits of that principle are not clear.’ ”) (quoting Britt, 404 U.S. at 227, 92 S.Ct. 431),2 but to determine whether the state court’s result in this *1060case reflected an objectively reasonable interpretation of an unmistakably clear Supreme Court decision. At least one court has held that the relevant Supreme Court case law does not extend so far as the majority would take it, and given our acknowledgment of Britt’s fuzzy contours, I have difficulty concluding that the state court’s decision unreasonably interpreted clearly established federal law within the meaning of AEDPA. See Williams v. Leeke, 444 F.Supp. 229, 232 (D.S.C.1976), aff'd per unpublished memorandum 571 F.2d 579 (4th Cir.1978) (“[T]he authorities cited by petitioners to support their contention that the Constitution requires them to obtain a transcript of closing arguments do not recognize such a requirement. A transcript of arguments to a jury is omitted from the requirements set out in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), and Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), and Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), make no reference to the reduction of argument to the jury into transcript form.”) (citations edited); see also Price v. Vincent, 538 U.S. 634, 643, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (“This was not an objectively unreasonable application of clearly established law as defined by this Court. Indeed, numerous other courts have refused to find [constitutional] violations under similar circumstances.”) (emphasis in original).
The court’s castigation of the state tribunal for its creation of a “doctrine of ‘substantial compliance’ ” presents a red herring. See Opinion at 1050. Britt itself fails to set forth a rigid requirement that defendants be provided with a transcript in every case, but rather establishes its own rule of substantial compliance — demanding delivery of a free transcript only when doing so “is necessary for an effective defense,” Britt, 404 U.S. at 227, 92 S.Ct. 431, and failing to find a constitutional violation where a “substantially equivalent” device is available. Id. at 230, 92 S.Ct. 431. Read in the charitable light demanded by AEDPA, see Himes v. Thompson, 336 F.3d 848, 854 (9th Cir.2003) (noting AEDPA’s demand that courts must “presume ... that state courts know and follow the law and give state court decisions the benefit of the doubt.”) (citation and quotations omitted), the state court’s reference to “substantial compli[ance]” hardly “created a new and additional ... exception” to established Supreme Court doctrine. Contra Opinion at 1052. It simply represents the Court of Appeal’s eminently reasonable conclusion that the partial transcript delivered to Kennedy satisfied Britt’s requirement that indigent defendants be given free access to only those portions of a transcript which are necessary to ground a constitutionally competent defense.
Indeed, the following two sentences of the Court of Appeal’s opinion confirm that is precisely what was meant by its allusion to substantial compliance: “Kennedy was afforded a free transcript of all the testi*1061mony. He thus had available those crucial portions which might be necessary ... for the purposes of impeaching witnesses and rebutting evidence.” Kennedy v. Terhune, No. D027718 at 6 (Cal. Ct.App. filed Sep. 8, 1998). Nonetheless, the majority once again faults the state appellate court’s reaching the same conclusion that at least one of our sister circuits has suggested. See Phegley v. Greer, 691 F.2d 306, 309 (7th Cir.1982) (“Due process does not always require the state to provide a full transcript to an indigent defendant if a partial transcript or appropriate substitute is made available.”) (emphasis added), cert. denied 459 U.S. 946, 103 S.Ct. 262, 74 L.Ed.2d 204 (1982); see also Lindsey v. Smith, 820 F.2d 1137, 1148 (11th Cir.1987), cert. denied 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989) (“Moreover, in contrast to Britt, appellant’s attorneys had access to portions of the actual transcripts of the first trial.”).
The majority’s only cogent critique of the Court of Appeal’s conclusion that Kennedy had all he needed to prepare a constitutionally effective defense is its vague assertion that “motions to suppress or exclude often reveal, as here, information regarding damaging and prejudicial evidence that the state plans to introduce, and the rulings thereon may sometimes be case-dispositive.” Opinion at 1048. But there are two serious problems with this conclusory reasoning. First, the majority utterly fails to explain why such evidence cannot be adequately and effectively dealt with by contemporaneous objection when it is encountered in the courtroom.3 For a complete transcript truly to be “necessary to an effective defense,” Britt, 404 U.S. at 227, 92 S.Ct. 431 (emphasis added), it must be more than merely helpful. See Webster’s Third New Int’l Dictionary 1510-11 (1986) (defining necessary as “of, relating to, or having the character of something that is logically required ... that cannot be done without; that must be done or had; absolutely required; essential, indispensable.”); cf. Opinion at 1047 (“In asking this court to limit the meaning of ‘prior proceedings’ to a transcript of witness testimony, the state would have us construe the term so as to violate its ordinary and plain meaning. We are not free to do so.”). At bottom, the majority offers only a thinly-reasoned justification to support its extension of precedent beyond that clearly established by the Supreme Court.4
*1062Second, the majority entirely overlooks the fact that — as a constitutional matter— the admission of prejudicial evidence generates reversible error only when it “renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (citing Darden v. Wainwright, 477 U.S. 168, 179-183, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). Thus, whatever value there may be in securing the exclusion of potentially prejudicial evidence from the courtroom prior to the commencement of trial, the fact that the courts subject the ultimate admission of prejudicial evidence to such a stringent standard of review evinces a con-stitutionalized conclusion that excluding such evidence by pre-trial motion is hardly necessary to securing a fair trial or guaranteeing a constitutionally effective defense. Otherwise, the courts long ago would have established a per se rule of ineffectiveness for failure to object to the admission of prejudicial statements at trial. Yet we have soundly rejected that proposition. See, e.g., Phyle v. Leapley, 66 F.3d 154 (8th Cir.1995) (“[Due to] the kinds of broad, highly subjective factors that trial lawyers must take into account as they make repeated, instantaneous decisions whether to object to a question, whether to move to strike a damaging unresponsive answer, or whether to move for a mistrial when a witness has delivered an unexpected low blow[,][w]hen we review such trial decisions, the ineffective assistance standard is high — they are ‘virtually unchallengeable’ — in part because appellate judges cannot recreate from a cold transcript the courtroom dynamics that are an essential part of evaluating the effectiveness of counsel’s performance.”) (quoting 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.10, at 95 (1984)).
Viewed in this light, the state court’s decision rejecting Kennedy’s assertion of Britt error was neither contrary to, nor an unreasonable application of, clearly established federal law as set forth by the Supreme Court.
II
Even if it were objectively unreasonable for the state Court of Appeal to have concluded that a transcript of prior pretrial motions was not “needed for an effective defense” — which is was not — it was not objectively unreasonable for the Court of Appeal to have concluded that any resulting constitutional error was harmless.
A
Notwithstanding more than twenty years of Ninth Circuit jurisprudence making clear that Britt errors are subject to harmless error review, see, e.g., United States v. Rosales-Lopez, 617 F.2d 1349, 1355-56 (9th Cir.1980), and despite the fact that the Certificate of Appealability issued by the district court directed Kennedy to address “whether denial of a transcript of pretrial proceedings and motions in limine was a denial of Petitioner’s rights and whether it was harmless error,” petitioner’s opening brief failed to allege that any prejudice stemmed from the trial court’s refusal to provide him a complete tan-*1063script, asserting instead that no such showing was necessary. See Alaska Ctr. for the Env’t v. United States Forest Serv., 189 F.3d 851, 858 n. 4 (9th Cir.1999) (“Arguments not raised in opening brief are waived.”).
Even after the state’s responsive brief conclusively demonstrated that his claim was subject to harmlessness review, Kennedy did not suggest that he was in any way prejudiced until the final sentence of his reply brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (“Issues raised for the first time in the reply brief are waived.”); see also Sophanthavong v. Palmateer, 365 F.3d 726, 737 (9th Cir.2004) (noting the “obvious” prejudice wrought by allowing litigants to raise arguments for the first time in reply: doing so deprives opposing counsel of “the opportunity to point to the record to show that the new theory lacks legal or factual support”).5 Yet even then he was unable to identify any specific reason why counsel’s lack of access to a complete transcript affected the outcome of his second trial. Cf. United States v. Anzalone, 886 F.2d 229, 232 (9th Cir.1989) (“The second reason that appellant’s claim fails is that [he] has not pointed to any specific prejudice he has suffered from the alleged errors in the transcripts.... [E]ven assuming there were omissions in the transcripts, appellant cannot prevail without a showing of specific prejudice.”).
It is particularly curious that the majority seeks to escape Kennedy’s waiver by pointing to the state’s alleged factual concessions at oral argument. See Opinion at 1055. Let’s have a look at what actually happened at the oral argument. Recognizing that we long have held Britt error subject to harmlessness review, the court had repeatedly prodded petitioner’s counsel to identify some plausible instance of actual prejudice stemming from the trial court’s failure to furnish his client a transcript of the pre-mistrial motions. The majority’s final exchange with Kennedy’s counsel during his opening argument is most illuminating:
[Counsel for Kennedy]: ... If the new counsel had had [a complete transcript], he would be much-better equipped. [Court]: Well, that's- true. I mean, I think one can assume that the — more information is better than no information, or some information. So let’s accept that premise. Is there anything you can point to that occurred in the second trial — there was a mistrial on the first one, right?
[Counsel for Kennedy]: Yes.
[Court]: Okay. So in the second trial, was there something that you can point to where it’s clear that, had [petitioner] had the full trial transcript, he would have avoided some prejudicial episode? [Counsel for Kennedy]: Not as I stand here. But I will say—
[Court]: Well then maybe you should sit down for a while, and on rebuttal maybe you can figure out your case.
That highlighted admission — following a ten second silence during which counsel searched in vain for some answer to the court’s question — should have ended this matter. Aware that, beyond having waived it in the briefs, Kennedy’s counsel had thus conceded the critical argument in this litigation, counsel for the State rose with the intention of only briefly addressing the court. In remarks lasting just 30 *1064seconds, counsel noted that we long have held that Britt error is subject to harmless error review, and that petitioner had failed to identify any prejudice. The following exchange with the majority ensued:
[Counsel for the State]: Unless the court has any questions, I — I believe that there’s ...
[Court]: Yes. I have a question.
[Counsel for the State]: Yes, your hon- or.
[Court]: Umm ... There was gang testimony at the second trial and not at the first. Right?
[Counsel for the State]: I believe that’s correct, your honor.
[Court]: And at the first trial, the district court excluded references to his membership in a gang. Right?
[Counsel for the State]: I believe that is correct, your honor, yes.
[Court]: And that was done at a pretrial hearing with a motion. And that part of the transcript was not furnished for the second trial. Right?
[Counsel for the State]: I believe that’s correct, your honor.
[Court]: And, as a result, the lawyer was not aware of the issue, and didn’t object. And the evidence was admitted. Right?
[Counsel for the State]: Yes, your hon- or.
[Court]: And we have a number of cases that establish how prejudicial the introduction of gang testimony is. Right? [Counsel for the State]: Yes, your hon- or, depending on the nature and the circumstances of gang testimony that is introduced.
[Court]: Well, in this case, it was introduced gratuitously, by the deputy district attorney asking for an elaboration on what “cuz” meant. Right?
[Counsel for the State]: Yes, your hon- or, but I believe it was limited to the definition of what “cuz” meant, or could have meant.
[Court]: Well, what was it relevant to?
[Counsel for the State]: Umm ... I — I believe it was, it may have been relevant to the area and the, the drug deal, the drug transaction.
[Court]: The fact that he was part of a gang. Right?
[Counsel for the State]: That’s right.
[Court]: There’s a minute order which was entered in the first case that said there will be no mention of gangs or gang affiliation unless clearly — unless cleared by the court out of the presence of the jury. That one came after the hearing on which it was made clear of the prejudicial nature of gang testimony. Did the same district attorney, deputy D.A. Clabby, try the second trial? [Counsel for the State]: I am not sure.
[Court]: Well if the first judge thought it was prejudicial, why shouldn’t we just assume, therefore, that prejudice is established in the second trial. Counsel (a) didn’t know about the issue, didn’t know about the prior ruling, and presumably the state did. And yet in the face of that prior minute order, the state went ahead and let its witness — in fact, invited its witness — -to go ahead and inject the issue of gangs. Why isn’t that sufficient to establish error? ...
By the time the State’s argument time had expired, Kennedy’s counsel had been so embarrassed by the court’s relentless interrogation of counsel for the State — and by its viseerally derisive display of frustration at the close of his opening argument— that he began his rebuttal with an offer of atonement:
[Counsel for Kennedy]: I apologize to the court for missing that clear argument about the gang testimony.
*1065Now, I have nothing but the greatest respect for my panel colleagues’ lawyerly acumen. But I do not find its exercise compatible with the basic obligations of the office we share. As judges, the essence of our role is restrained service as impartial arbiters of disputes framed by litigants. It is not, I respectfully suggest, to act as backup counsel when litigants make poor arguments, or when they come into court without first having “figure[d] out” their cases6 — even when doing so is motivated by a well-intentioned, but unavoidably standardless “philosophy of law ... infused by concepts like ... social justice.”7
Indeed, it was just a few months ago that today’s majority offered almost precisely that admonition. In proceedings arising out of a case we resolved following an oral argument held the very same morning we heard this appeal, an order signed by Judges Reinhardt and Fisher instructed: “Given the overwhelming volume of work which today confronts our courts, we do not generally favor requiring judges ... to search out and research arguments that the other side does not make .... ” Gwaduri v. INS, 362 F.3d 1144, 1146 (9th Cir.2004). But what’s sauce for the goose is supposed to be sauce for the gander. “Right?”
Events transpiring after initial publication of the majority’s opinion granting Kennedy relief make clear the dangers inherent in my colleagues’ eagerness to overreach from the bench. In their prior opinion — helping prove the wisdom of the age-old adage that “bad facts make bad law” — the majority repeatedly emphasized the bad “fact” that a single prosecutor was responsible for both of Kennedy’s trials. For instance, the court noted in now-deleted language developing the factual basis for its decision that “[t]he prosecutor remained the same for both trials; he, thus, had personal knowledge of all that transpired during the prior proceedings,” Kennedy, 372 F.3d 1013, 1016-17 (9th Cir.2004), and it emphasized that “[djuring the second trial, the prosecutor, who was aware that the prior trial judge had excluded any mention of Kennedy’s alleged gang involvement, proceeded, deliberately, to elicit testimony from Detective McDowell on the subject of gangs.” Id. at 1017. Ultimately, the court concluded,
In hindsight, it is difficult to conclude that the omitted portions of the tran*1066script would not have been important to Kennedy in preparing an effective defense, particularly where, as here, the prosecutor had a distinct advantage in presenting the government’s case, having been present when the defense delivered its opening and closing arguments and throughout all of the proceedings both before and during the first trial.
Id. at 1029-30.
From such factual characterizations, one would have thought this case is, at bottom, about an overzealous prosecutor’s nefarious plot to railroad a hapless defendant. How ... socially unjust! There is only one problem: The State’s petition for rehearing en banc — which, by the way, is the first opportunity the State has had to respond to the majority’s lawyering at the oral argument — reveals that different prosecutors handled Kennedy’s two trials. The majority’s factual predicate was utterly baseless.
In the end, one would be hard-pressed to find a better illustration of what Sophanthavong had in mind when it identified how clearly prejudicial it can be for a court to overlook a party’s clear waiver (not to mention a party’s outright concession, as in this case): “The unfairness of such a tactic is obvious. Opposing counsel is denied the opportunity to point to the record to show that the new theory lacks legal or factual support.” Sophanthavong, 365 F.3d at 737 (emphasis added).
B
Kennedy’s personal failure to present any cogent basis for thinking he was prejudiced by the state trial court’s alleged Britt error aside, the thin reed relied upon by the majority hardly suffices to demonstrate that the Court of Appeal’s finding of harmlessness was objectively unreasonable. In its decision on direct appeal, the Court of Appeal noted that beyond Detective McDowell’s statement that “a lot of people use [‘cuz’],” the prosecution elicited an acknowledgment from McDowell that the term often is used simply to refer to people from one’s own neighborhood. See Kennedy v. Terhune, No. D027718 at 7. It is perhaps for that reason that the defense never objected to McDowell’s testimony regarding gang affiliation: Considered in context, McDowell’s “allusion to gang membership was not significant.” Id. & id. at 17. Indeed, it was laughable — as the Court of Appeal quite reasonably concluded.
Defense counsel’s failure to object to the testimony has an additional significance: It undermines the chain of causation the majority uses to connect the trial court’s failure to provide Kennedy a complete transcript to some meaningful error on retrial. The court speculates that, on notice of the need to object to McDowell’s potentially prejudicial testimony concerning Kennedy’s possible gang affiliation, there is “little doubt that Kennedy’s counsel in the second trial would have presented a similar motion with a substantial likelihood of success.” Opinion at 1054. Indeed, the majority tells us that counsel “would undoubtedly have based a motion to exclude on the arguments already presented.” Id. at 1055 n. 16. Yet, confronted in court with McDowell’s etymological testimony, counsel did not even seek to exclude it from the record as irrelevant or prejudicial. The majority’s confidence that counsel would have acted differently prior to trial thus defies sound reason.
At the same time it undermines the majority’s speculative chain of causation, counsel’s failure to object to McDowell’s testimony breaks it. For, in a variety of contexts, we have repeatedly recognized that contemporaneous objections can prevent reversible error stemming from the improper admission of prejudicial remarks by providing an opportunity for the court *1067to purge the record or offer a curative instruction. See, e.g., Davis v. Woodford, 333 F.3d 982, 997(9th Cir.2003) (prosecutorial misconduct/documentary vouching); Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148(9th Cir.2001) (“Doubtless, contemporaneous objections at trial are to be encouraged. Where objections are made, there may be an opportunity for the trial judge to foreclose further error or to provide a curative instruction.”) (civil litigation/appeal to racial prejudice); Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir.2000) (improper admission of pre-trial law enforcement officer statements); Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir.1988) (“Although the prosecutor’s behavior at trial might have approached misconduct, any error could have been cured by contemporaneous objections.”) (prosecutorial misconduct/argumentative vouching); Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir.1993) (prosecutorial miseonduct/com-menting on defendant’s refusal to testify); U.S. v. Schuler, 813 F.2d 978, 982 (9th Cir.1987) (prosecutorial misconduct/referencing a non-testifying defendant’s out-of-court behavior); U.S. v. Stephens, 486 F.2d 915, 918 (judicial misconduct/instructing jury on how to weigh evidence); see also supra at 6, n. 3. Thus, whatever impact McDowell’s gang testimony may have had on Kennedy’s trial — and again it was not unreasonable to conclude that it had none — it cannot be attributed to the trial court’s refusal to deliver Kennedy a complete transcript of his initial trial.
Were this not enough, the State’s petition for rehearing en banc drives yet another nail through the heart of the court’s opinion. Perhaps the most important step in the majority’s logic was its assertion that the court on retrial would have been bound by the previous decision to exclude any gang testimony from Kennedy’s mistrial, such that any motion by Kennedy to exclude such testimony would have had “a substantial likelihood of success,” Kennedy, 372 F.3d at 1027:
Although we have found no California cases addressing the exact issue presented here, generally “under the law of the case doctrine and general principles of comity, a successor judge has the same discretion to reconsider an order as would the first judge, but should not overrule the earlier judge’s order or judgment merely because the later judge might have decided matters differently.” United States v. O’Keefe, 128 F.3d 885, 891 (5th Cir.1997). A second judge will generally follow a ruling made by an earlier judge unless the prior decision was erroneous, is no longer sound, or would create an injustice. Id. None of the exceptions to the application of this basic doctrine exists here.
Id. at 1027 n. 16.
Not so fast. Like its unsupported (and, until the State’s petition for rehearing en banc, unrebutted) assertion that a single prosecutor was responsible for both Kennedy’s mistrial and retrial, the majority’s resort to generic law of the case principles turns out, again, to have been utterly baseless. For as the State points out in its petition for rehearing en banc — again taking advantage of its first real opportunity to respond to arguments developed and deployed by the majority at oral argument — law of the case doctrine actually does not apply to trial court decisions in California. See 9 Bernard E. Witkin, California Procedure § 896 at 930-31 (4th ed.1997) (collecting cases). Poof! Gone is the premise for the majority’s speculative prediction that a motion to exclude gang testimony would almost certainly have been granted at retrial; in reality, the majority has absolutely no idea whether a motion to exclude would have been successful or not. At bottom, given the (new) prosecutor’s efforts to minimize the impact *1068of the already laughable gang testimony, and in light of the severe gaps in the majority’s speculative chain of causation between any alleged Britt error and the introduction of gang testimony on retrial, no fair-minded jurist could conclude that it was objectively unreasonable for the Court of Appeal to have determined that any constitutional error was harmless.
Finally, I observe that there were ample additional reasons to believe that McDowell’s allegedly prejudicial statements did not impact the jury’s determination that Kennedy had committed the offense charged. In addition to the detective’s persuasive testimony concerning the circumstances of petitioner’s sale of a non-controlled substance in lieu of a controlled substance, Kennedy’s “cousin,” Randall Tucker, testified to delivering McDowell the paper bag containing the non-controlled substance (though he denied his own intent and any misrepresentation of its contents). As a result of that denial, the prosecution then lawfully impeached Tucker with evidence that he had pled guilty to the very offense at issue in Kennedy’s trial. Given such powerful trial testimony to the jury suggesting petitioner’s guilt, it seems something of a stretch to think that the jury’s verdict would have been different had McDowell not been allowed to intimate that, among other completely innocuous meanings, the lingo “cuz” had gang significance.8
III
Apparently in search of a result, the majority yet again runs roughshod over the principles of comity and federalism underlying the Antiterrorism and Effective Death Penalty Act. “[P]remised on the fact that the state courts, as part of a coequal judiciary, are competent interpreters of federal law deserving of our full respect,” Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003), AEDPA mandates a “highly deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and adamantly “demands that state court decisions be given the benefit of the *1069doubt.” Brodit v. Cambra, 350 F.3d 985, 987 (9th Cir.2003) (quotation and citation omitted). Notwithstanding the eminent reasonableness of their colleagues’ analysis, two judges today inform seven others' — -a state trial judge, three state appellate judges, a federal magistrate judge, a federal district court judge, and a federal appellate judge (and that’s not to mention the seven Justices of the California Supreme Court who summarily denied Kennedy’s state petition for review) — that their understanding of the law is contrary to clearly established Supreme Court precedent. Again, one is tempted to ask: “Objectively, who is being unreasonable?” Payton v. Woodford, 346 F.3d 1204, 1225 (9th Cir.2003) (en banc) (Tallman, J., joined by Kozinski, Trott, Fernandez, and T.G. Nelson, JJ., dissenting), cert. granted sub nom. Goughnour v. Payton, 541 U.S. -, 124 S.Ct. 2388, 158 L.Ed.2d 962, 2004 WL 102831 (May 24, 2004).
Our apparent inability to internalize AEDPA’s strict standard of review has become a source of repeated public embarrassment. During the past two terms alone, we have been summarily reversed by a unanimous Supreme Court no fewer than four times for disregarding AEDPA’s strict limitations on the scope of our collateral review of state court constitutional adjudications. Middleton v. McNeil, 541 U.S. -, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam), rev’g 344 F.3d 988 (9th Cir.2003); Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam), rev’g Gentry v. Roe, 320 F.3d 891 (9th Cir.2002); Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam), rev’g 288 F.3d 1097 (9th Cir.2002); Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam), rev’g Packer v. Hill, 291 F.3d 569 (9th Cir.2002). Because we are once again “nowhere close to the mark,” Yarborough v. Alvarado, 541 U.S. -, 124 S.Ct. 2140, 158 L.Ed.2d 938, 2004 WL 1190042 (June 1, 2004), rev’g Alvarado v. Hickman, 316 F.3d 841 (9th Cir.2002), I lamentably, yet respectfully, dissent.
. Pursuant to California Health and Safety Code § 11355, "Every person who ... offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any ... liquid, substance, or material in lieu of a[ ] controlled substance shall be punished by imprisonment in the county jail for not more than one year, or in the state prison.” As a "wobbler” — an offense that can be punished as either a felony or misdemeanor, see Lockyer v. Andrade, 538 U.S. 63, 67, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)—sale of a substance in lieu of a controlled substance can (as in this case) lead a recidivist to be sentenced to twenty-five years to life under California’s Three Strikes Law, Cal.Penal Code §§ 667(e) & 1170.12(c)(2).
Kennedy's prior offenses included disorderly conduct, theft, burglary, battery, and forcible rape; numerous parole violations followed his nine-year incarceration in state prison for the latter offense. Cf. Ramirez v. Castro, 365 F.3d 755, 767-69 (9th Cir.2004) (declaring unconstitutional the imposition of a three-strikes twenty-five-to-life sentence on a recidivist whose prior history consisted only of three non-violent shoplifting offenses and who previously had served just six months and 20 days in county jail).
. The majority suggests that Kirk's reference to Britt’s own recognition of its ambiguity is limited to the facts of Kirk. Opinion at 1048 n.8. Aside from the weakness of such a proposition, I note that while Kirk surely addressed a distinguishable factual scenario, no fair reading of the quoted passage — which opened the court’s analysis of Britt and its progeny— supports such a limited interpretation. For *1060the sake of ease, I here quote the Kirk passage in full:
The Supreme Court has held that a state 'must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners.’ Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) (emphasis added). However, the right to free transcripts is not absolute. The Court in Britt recognized that the 'outer limits of that principle are not clear.’ Id.
The Court, quite simply, has never clearly held that a transcript of premistrial motions are "basic tools of an adequate defense”— that is, that they fall within the admittedly "not clear ... outer limits” of its doctrine.
. The majority’s suggestion that an objection would have been ineffectual because it may not have removed the prejudicial testimony from the jurors’ minds, Opinion at 1056-57 n.19, not only contradicts case law establishing that jurors are generally presumed to follow the instructions of the court, see, e.g., United States v. Griffith, 301 F.3d 880, 884 n. 3 (8th Cir.2002) (”[T]he district court instructed the jury that the statements and comments of the prosecutor are not evidence. Because jurors are presumed to follow their instructions, this provides further evidence that Griffith suffered no prejudice as a result of the prosecutor's allegedly improper remarks.”) (citation omitted); United States v. Magana, 127 F.3d 1, 6 (1st Cir.1997) ("Within wide margins, the potential for prejudice stemming from improper testimony can be satisfactorily dispelled by appropriate curative instructions. Jurors are presumed to follow such instructions, except in extreme cases.”) (citations, quotations, and alterations omitted); United States v. Bullock, 71 F.3d 171, 175 (5th Cir.1995) (“|T]he court admonished the jury that it could consider Bullock's prior felony conviction only in connection with the firearm count. Any possible prejudice could be cured with proper instructions and juries are presumed to follow their instructions. Therefore, the jury instructions were sufficient to cure any possible prejudice.”), but also case law demonstrating precisely how effective objections and instructions can be. See infra at 7890 (collecting cases).
. Contrary to the majority’s assertion, I do not "put the burden on the defendant to prove that there is a ‘need’ for the transcript” tailored to the particular facts of his case. Opinion at 1051. That might indeed create tension with Britt’s holding that a trial court *1062may not base its denial of a petitioner's request for a transcript on his failure to show "particularized need.” Britt, 404 U.S. at 228, 92 S.Ct. 431 (emphasis added). Instead, I place the burden on the majority to justify its novel articulation of a thin rationale supporting the extension of prior precedent in order to impose a general requirement that indigents must be given a transcript of all non-testimonial preliminary proceedings; and to demonstrate that the state court objectively unreasonably concluded that, as a general matter, delivery of a partial transcript recording all testimony enables a constitutionally-effective defense.
. The majority’s suggestion that no one could "have been prejudiced in any way by defense counsel’s failure to address the prejudice question more directly,” Opinion at 1054-55 n. 15, thus flatly contradicts our court's well-established — and just recently restated — understanding of how a party's failure adequately to brief an issue prejudices the opposing party.
. The majority's novel assertion that the habe-as petitioner himself need neither argue nor identify prejudice because we must gauge the existence of prejudice in light of the record as a whole merely begs the question. Opinion at 1054-55 n.15. For who could deny that when we assess prejudice we must do so based on the complete record, as opposed to a fragmentary image of proceedings below? The real question, which the majority fails to answer, is what triggers such an assessment in the first instance. I submit that — as with any other claim courts are called upon to address — we only assess prejudice once the petitioner argues that he has been harmed in some specific way by an alleged constitutional error. The majority simply confuses a statement of how we must analyze well-preserved claims of prejudice with the untenable conclusion that such arguments can never be waived.
. Stephen Reinhardt and Howard Bashman, 20 Questions for Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit, available at http://legalaf-fairs.org/howappealing/20q/ 2004_02_01_20q-appellateblog — archive.html (quotation marks omitted); see also Stephen Reinhardt, The Role of Social Justice in Judging Cases, Keynote Speech at the University of St. Thomas Law Journal Symposium Honoring Judge John T. Noonan, Jr. (Oct. 18, 2003) ("[SJocial justice is a substantive legal principle that pervades all aspects of the law from torts to Social Security claims. The purpose of our legal system is not to provide an abstract code of rigid rules; rather it is to promote values that are compatible with the vision of a just existence for all individuals.”).
. Though, superficially plausible, we have previously declined to adopt the majority’s theory that lengthy deliberations necessarily support a finding of prejudicial error. See Opinion at 1056 & n.18. Indeed, in United States v. Galindo, 913 F.2d 777, 779 (9th Cir.1990), we drew precisely the opposite inference. There, we addressed two criminal defendants’ claims that they were incurably prejudiced by the judge's reference to ongoing plea negotiations. Rejecting the assertion, “we note[d] that the jury deliberated approximately three full days after a trial that lasted about that same length of time. Although this is a circumstance which in a given case can indicate a confused jury, here it negates any suggestion that the jury was stampeded to a verdict against the [defendants] out of prejudice resulting from the district court's statement at trial about plea negotiations.” Id. at 779.
I do not mean to suggest that Galindo rules out the majority’s argument. Indeed, we have reached such a conclusion in other cases. See, e.g., Dyas v. Poole, 317 F.3d 934, 937 (9th Cir.2003) (per curiam); Jennings v. Woodford, 290 F.3d 1006, 1019 (9th Cir.2002). But the majority's opinion in this case hinges on the introduction of prejudicial testimony — precisely the kind of occurrence that, like a judge's indication to the jury that a defendant is considering pleading guilty, could lead a jury to "stampede[] to a verdict.” As in Galindo, that did not happen here. And the fact that we have refused to draw the majority's inference on direct appeal in closely analogous circumstances in turn supports the reasonableness of the state court's decision not to draw the inference below. For if a “difference of opinion among the courts of appeal [means] we cannot say that the state court unreasonably applied clearly established Federal law,” Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir.2001), then a difference of opinion within this court of appeals would seem to suggest that we may not conclude that the state court's harmlessness determination was objectively unreasonable.