Cesar Sarausad v. Carol Porter, Cesar Sarausad v. Carol Porter

BYBEE, Circuit Judge,

dissenting.

This case comes to us through an unusual set of proceedings. After Washington courts denied direct review of Sarausad’s appeal from his conviction, the Washington Supreme Court issued a “clarifying instruction” in State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000), which was relevant to Sarausad’s appeal. Sarausad v. State, 109 Wash.App. 824, 829, 39 P.3d 308, 311 (2001). In Sarausad’s second appeal, brought through a personal restraint petition, the Washington Court of Appeals “reexamine[d] the record in light of Roberts,” and confessed that in its prior opinion it “erred.” Id. at 830, 837, 39 P.3d at 312, 315. On reconsideration, in a lengthy opinion, the Washington Court of Appeals held that the jury instructions given in *704Sarausad’s case “complied with Roberts and the Washington accomplice liability statute.” Id. at 838, 39 P.3d at 316. The Washington Supreme Court, adopting a Commissioner’s ruling citing Roberts, found that “the trial court correctly instructed the jury” on accomplice liability.

Notwithstanding the care with which the Washington courts reconsidered Sarau-sad’s claims in light of this clarification in Washington law, the majority finds that Washington courts should not have been trusted with their own jury instructions. Relying on hornbook platitudes from Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the majority holds that the jury instruction at issue here was not only “ambiguous,” Maj. Op. at 692, and thus “ ‘relieved] the State of the burden of proof enunciated in Winship,’ id. at 683 (quoting Sandstrom v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)), but that there was a “reasonable likelihood” that the jury applied the instructions in an unconstitutional manner, id. at 694. In so concluding, the majority implicitly finds that the jury instruction at issue “by itself so infected the entire trial that the resulting conviction violates due process,” Estelle, 502 U.S. at 72, 112 S.Ct. 475, that we must override the findings of Washington courts to the contrary.

With all due respect to my colleagues in the majority, the judgment of the Washington courts bears no resemblance to the majority’s description. The jury instructions at issue here were in all material respects identical to the Washington statute on accomplice liability and to a jury instruction specifically approved by the Washington Supreme Court in Roberts. Neither the statute nor the instruction is ambiguous. Moreover, the law the majority finds “clearly established” in Estelle and Winship could not have put the Washington courts on notice that their jury instructions were “ambiguous.” They could not have known that the instructions were an “objectively unreasonable” violation of the Due Process Clause. Williams v. Taylor, 529 U.S. 362, 409-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also 28 U.S.C. § 2254(d)(1). Lastly, there was not a “reasonable likelihood” of misapplication by the jury. I respectfully dissent in the majority’s conclusion to the contrary.1

I

The instructions given at Sarausad’s trial and at issue here are identical in all material respects to the Washington accomplice liability statute. Instructions 45 and 46, as given in this case, provided that:

[No. 45] You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.
A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.
[No. 46] A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either (1) solicits, commands, encourages, or requests another person to commit the crime or (2) aids or agrees to aid *705another person in planning or committing the crime.
The word “aid” means all assistance whether given by words, acts, encouragement, support or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime.
However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

Sarausad, 109 Wash.App. at 838 n. 8, 39 P.3d at 316 n. 8. Instruction 45 is, word for word, taken from subsections (1) and (2) of the Washington accomplice liability statute under which Sarausad was charged. Wash. Rev. Code § 9A.08.020.2 Instruction 46 is, with a modification that is not relevant here, identical to subsection (3) of the Washington statute:

(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it;
3

Moreover, these instructions were not written for Sarausad’s trial, but have been used in Washington for many years.4 Instruction 46, for example, is nearly identical to instruction 8 given in State v. Davis, 101 Wash.2d 654, 656, 682 P.2d 883, 884-85 (1984). This instruction was expressly approved in State v. Roberts: “the jury instruction in Davis, unlike the jury instruction here, copied exactly the language from the accomplice liability statute: it allowed for a conviction as an accomplice if the accomplice acted ‘with knowledge that it will promote or facilitate the commission of the crime Roberts, 142 Wash.2d at 511-12, 14 P.3d at 736 (quoting Davis, 101 Wash.2d at 656, 682 P.2d at 884).5

*706As a statement of Washington law, instructions 45 and 46 could not have been clearer. As we recently wrote in United States v. Lyons:

The difficulty with [defendants’] challenge is that the court’s instruction was a nearly verbatim quotation from Madigan [v. Telemarketing Assocs., Inc., 538 U.S. 600, 624, 123 S.Ct. 1829, 155 L.Ed.2d 793 (2003) ]. It is difficult to understand the claim that the jury instruction was “flatly prohibited by the Supreme Court in Madigan ” when the instruction quite appropriately quoted the controlling law.

453 F.3d 1222, 1233 (9th Cir.2006) (citation omitted), amended by 472 F.3d 1055 (9th Cir.2007). As in Lyons, the only thing “difficult to understand” in this case is how the majority finds that an instruction that “quite appropriately quoted the controlling law” is ambiguous.

II

Tracing the history of Washington state courts on the issue reveals that the instructions in this ease avoid past infirmities and reflect the endorsed approach. The instructions here completely satisfy the Washington Supreme Court’s concerns in Roberts. Roberts argued that the instruction on accomplice liability given at his trial permitted the jury to convict him if he had general knowledge that his accomplice might commit any crime and not just the crime charged. See Roberts, 142 Wash.2d at 509, 14 P.3d at 734-35. The instruction given in Roberts’s case was materially different from the instructions given here and in Davis. The faulty instruction in Roberts, with key words italicized by the Washington Supreme Court, provided:

You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of a crime.
A person is an accomplice in the commission of a crime, whether present at the time of its commission or not, if, with knowledge that it will promote or facilitate its commission, he either: (a) solicits, commands, encourages or requests another person to commit the crime; or (b) aids another person in planning or committing the crime....

Id. at 510, 14 P.3d at 735. The material distinction between the Roberts instruction and the Washington accomplice liability statute was the use of “a crime,” as opposed to “the crime” in the first paragraph of the jury instruction. Id. (pointing to “the phrase ‘a crime’ in the first paragraph of instruction 7” and contrasting it with “the phrase ‘the crime’ in the parallel portion of the statute, RCW 9A.08.020(2)(c)”). According to the court, “ ‘the crime’ means the charged offense.” Id. Through that language, the legislature “intended the culpability of an accomplice not extend beyond the crimes of which the accomplice actually has ‘knowledge.’” Id. at 511, 14 P.3d at 735 (referring to Wash. Rev. Code § 9A.08.020). By contrast, the instruction given in Roberts’s case “essentially allowed the jury to impose strict liability on Roberts” and “improperly departed from the language of the statute.” Id. at 511, 14 P.3d at 735-36.

The Washington Supreme Court approved the jury instruction in Davis because it was “copied exactly” from the statute itself. Id. at 511-12, 14 P.3d at 736. The Court emphasized that Davis did “not impose strict liability on accomplices for any and all crimes but merely reaffirm[ed] our longstanding rule that an *707accomplice need not have specific knowledge of every element of the crime committed by the principal, provided he has general knowledge of that specific crime.” Id. at 512, 14 P.3d at 736.

Roberts was followed by State v. Cronin, 142 Wash.2d 568, 14 P.3d 752 (2000). In Cronin’s case, the jury was issued the following instruction on accomplice liability:

A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he either: (1) solicits, commands, encourages or requests another person to commit the crime; or (2) aids or agrees to aid another person in committing a crime.

Id. at 576-77, 14 P.3d at 756-57. Again, the court invalidated the jury instruction based on the use of the term “a crime.” Citing Roberts, the court concluded that “the fact that a purported accomplice knows that the principal intends to commit ‘a crime’ does not necessarily mean that accomplice liability attaches for any and all offenses ultimately committed by the principal.” Id. at 579, 14 P.3d at 758. Instead, “in order for one to be deemed an accomplice, that individual must have acted with knowledge that he or she was promoting or facilitating the crime for which that individual was eventually charged.” Id. Consequently, the instructions in Cronin’s case were found “legally deficient.” Id. It is not clear which reference to “a crime” was most crucial to the court, however one can surmise that it was likely the third instance, which allows conviction based only on “knowledge that it will promote or facilitate the commission of a crime.” Id. at 576-77, 14 P.3d at 756 (emphasis added). This aspect of the instruction would not require knowledge of the specific crime to be committed, and would fail the rigid standard expressed in Roberts.

There is no question that the jury in Sarausad’s case was properly instructed. The instruction mimicked the statute itself. The instruction suffered from none of the deficiencies identified in Roberts and Cronin because the jury was first instructed that it could not convict Sarausad unless it found that Sarausad was “an accomplice of such other person in the commission of the crime.” Sarausad, 109 Wash.App. at 838 n. 8, 39 P.3d at 316 n. 8 (emphasis added). For that reason, it does not suffer from the infirmity within the Roberts instruction. The jury was further instructed that Sarausad was an accomplice if he acted “with knowledge that it will promote or facilitate the commission of the crime.” Id. (emphasis added). Because of the specificity here, the instruction was not invalid like that in Cronin. Thus, the judgment of the Washington Court of Appeals that “the [trial] court properly instructed the jury as to the law of accomplice liability” is plainly correct, Id. at 843, 39 P.3d at 318-19, as is the conclusion of the Washington Supreme Court that “the trial court correctly instructed the jury that it could convict Mr. Sarausad of murder or attempted murder as an accomplice only if it found he knowingly aided in the commission [of] ‘the’ crime charged.”

Ill

Notwithstanding the clarity of the Washington courts’ rulings in Roberts, Cronin, and Sarausad, the majority sows confusion where none exists. The majority notes that the first issue under Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), is “whether the jury instructions were ambiguous” and con-*708eludes that “the jury instructions were, at the very least, ambiguous.” Maj. Op. at 689-90, 692. With all due respect, the majority has read neither the instructions nor Roberts closely enough.

The majority observes that the instruction found deficient by the Washington Supreme Court in Roberts was “almost identical” to instruction 45 given at Sarau-sad’s trial. Maj. Op. at 690 (emphasis added); see also id. at 690, 14 P.3d 713 (“The only difference ... is that the words ‘the crime’ ... in Sarausad’s case are replaced by the words ‘a crime’ ... in Roberts.”). The trick is the word “almost.” The fact is, that in the ways in which it counts in Washington, Sarausad’s instructions were not identical to the instructions given in Roberts. In Roberts, the instruction began “A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of a crime.” (Emphasis added). By contrast, instruction 45 in Sa-rausad’s trial read “A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.” (Emphasis added). Unlike Sarausad’s instruction, the Roberts instruction did not require knowledge of the commission of the specific crime; rather, it merely (and erroneously) required knowledge of “a crime.” The critical difference between the two instructions is that the Sarausad instruction clearly attaches knowledge to the specific crime, whereas the Roberts instruction seems to attach knowledge to any crime. Then, the words “its commission” in the Roberts instruction compound the problem. In Roberts, the instruction provides “A person is an accomplice in the commission of a crime ... if, with knowledge that it will promote or facilitate its commission.... ” (Emphasis added). “Its” refers back to “a crime.” Had “its” referred back to “the crime,” and not “a crime,” then the Roberts instruction would have correctly stated Washington law. But Sarausad’s instruction avoids this problem altogether because it explicitly requires knowledge of the commission of “the crime.” The majority minimizes the difference between the terms “a crime” in the Roberts instruction and “the crime” in Sarausad’s instruction, commenting that “th[is] simple change ... does not ... make the jury instructions ... unambiguous.” Maj. Op. 690-91. However, the distinction is critical in Washington law, and it is widely understood, across Roberts, Cronin, and Davis, that it makes the difference in the accomplice liability instruction. Therefore, in no way does the same “basic problem” remain here as in Roberts. See Maj. Op. 690-91. That’s what Roberts was all about, and it fully explains the Washington courts’ rulings in this case as well.

The contrast between the two instructions becomes even more evident when they are read in context with the preceding instruction in each case. In Roberts, the jury was instructed that “a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of a crime.” Roberts, 142 Wash.2d at 510, 14 P.3d at 735 (first emphasis added). This instruction incorrectly states Washington law because the second reference to “a crime” suggests that any crime committed by the principal makes the accomplice strictly liable. In Sarausad’s case, however, the jury was instructed that “a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in *709the commission of the crime.” Sarausad, 109 Wash.App. at 838 n. 8, 39 P.3d at 316 n. 8 (emphasis added).

When the instructions given in Sarau-sad’s case are compared with the full instruction 7 in Roberts, the majority’s claim that the instructions are “almost identical” evaporates entirely. It is this comparison that reveals the crucial ambiguity in the Roberts instruction. Because there was no similar ambiguity here, the controlling Supreme Court authority is not Estelle, but Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). In that case, the Supreme Court stated clearly that there is no constitutional violation when a “jury was adequately instructed, and ... the trial judge responded to the jury’s question by directing its attention to the precise paragraph of the constitutionally adequate instruction.” Id. at 234, 120 S.Ct. 727.

The majority attempts to classify Sarau-sad’s instruction as less offensive than the Roberts instruction but still impermissibly ambiguous under Estelle. The majority admits that the correction from “a crime” to “the crime” means that “Sarausad’s case does not invite an erroneous construction to the same degree as the flawed instruction in Roberts,” but finds that the lack of “an explicit statement that an accomplice must have knowledge of the actual crime the principal intends to commit” makes the instruction nonetheless defective. Maj. Op. at 690-91. Of course, the majority has no case law to support its proposition that an additional explicit statement is, or has ever been, required by Washington courts. In fact, the Washington Supreme Court’s express approval of the Davis instruction belies the existence of such a requirement. See Roberts, 142 Wash.2d at 511-12, 14 P.3d at 736. Contrary to the majority’s argument, the corrected instruction alone in Davis, as here, sufficiently cured the defective language without any further explanation.

Lastly, the majority rests its finding of ambiguity on evidence it deems “most revealing” — that the Washington Court of Appeals initially determined Sarausad’s instructions permitted his conviction as an accomplice “even if he did not know that Ronquillo intended to commit murder.” Maj. Op. at 691 (emphasis omitted). However, this early conclusion was later repudiated by the same court. The majority may claim that it is “hard pressed to read the very same statute and instructions as unambiguously instructing the jury to do precisely the opposite” now, Maj. Op. at 691, but that is exactly what the Washington Court of Appeals’ retraction forces us to do. Moreover, ambiguity should not be read into the court’s correction, which unambiguously admits “we erred.” Sarausad, 109 Wash.App. at 837, 844, 39 P.3d at 315, 319. The earlier Court of Appeals’ erroneous understanding of accomplice liability, see State v. Ronquillo, 89 Wash.App. 1037, 1998 WL 87641, at *9 (1998), did not affect the underlying jury instructions, which the later Court of Appeals deemed valid under a corrected view of the law, see Sarausad, 109 Wash.App. at 844, 39 P.3d at 319 (finding that “the accomplice liability instructions were sufficient, and nothing that the prosecutor argued to the jury required a remedial or supplemental instruction from the trial court”). Although the court’s view of the applicable law changed, neither the existence nor the content of the second decision reveals ambiguity as to Sarausad’s jury instructions.

Moreover, there is no inconsistency in the Washington Court of Appeals acknowledging its own error but reaching the same judgment. See Maj. Op. at 691. Under the Court of Appeals’ initial reading of the statute, the instructions were cor-*710reet. On reconsideration, the court had to determine whether those same instructions would satisfy a stricter reading of the statute, which they plainly did. In effect, the instructions would have satisfied either reading of the statute, although the prosecutor would have had grounds for objecting to the instructions at trial on the grounds that the instructions were too restrictive under the court’s original (and erroneous) reading of the statute. The Washington Court of Appeals did exactly what it was supposed to do in this case.

IV

Even if the instructions given here were ambiguous, it was not objectively unreasonable under clearly established Supreme Court law for Washington courts to conclude that the instructions were correct and fair. See 28 U.S.C. § 2254(d)(1). We can only applaud the Washington courts for admitting their prior error and reconsidering their judgment in Sarausad’s case. There is nothing in the decisions of the U.S. Supreme Court that should have alerted those conscientious courts that they were violating the Constitution when they did so. Yet, effectively, the majority is prepared to tell the Washington courts that it was fine to admit error, and that it was fine to reconsider the judgment based on a revised understanding of Washington law, but that Washington courts should not have been trusted with Washington law because their judgment on reconsideration is “objectively unreasonable.”

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may grant habeas relief only if “the 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 Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Court has explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis omitted). Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495. Rather, “[a] state-court decision involves an unreasonable application of [the] Court’s clearly established precedents if the state court applies [the] Court’s precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005); see Sims v. Rowland, 414 F.3d 1148, 1151-52 (9th Cir.2005).

Specifically, “[a] state court decision is ‘contrary to’ clearly established Supreme Court precedent if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases or if the state court confronts a set of facts materially indistinguishable from those at issue in a decision of the Supreme Court and, nevertheless, arrives at a result different from its precedent.” Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir.2004) (citing Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)) (other citations omitted). The “objectively unreasonable” standard of § 2254(d)(1) imposes a “highly deferential standard for evaluating state-court rulings” and “demands that state court decisions be given the benefit of the doubt.” Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). Our inquiry begins and ends with the state court’s determination, and affords it great deference in the process. Synthesizing these principles, to grant habeas relief under AEDPA, we must, first, identify a clearly *711established holding of the U.S. Supreme Court and, second, demonstrate that the state court’s application of that holding is objectively unreasonable. See Penry v. Johnson, 532 U.S. 782, 792-93, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

The majority musters two cases, Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), for the proposition that an ambiguous jury instruction violates due process because it may “relieve[ ] the State of its burden to prove every element of the crime beyond a reasonable doubt.” Maj. Op. at 688. As a statement of general law, the proposition cited by the majority is not to be doubted. In this case, however, the proposition is not particularly useful because it is so general, and neither Estelle nor In re Winship provides any guidance for determining what is an ambiguous instruction and at what point the ambiguity is of constitutional magnitude. See Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (“Although [Win-ship states] an ancient and honored aspect of our criminal justice system, it defies easy explication.”).6 The majority quotes from Estelle, 502 U.S. at 72, 112 S.Ct. 475 (“[I]n reviewing an ambiguous instruction such as the one at issue here, we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”) (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)), see Maj. Op. at 683, but omits the sentence that followed it: “we also bear in mind our previous admonition that we ‘have defined the category of infractions that violate “fundamental fairness” very narrowly,’ ” id. at 683 (quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)).

The majority now claims that the statute itself is ambiguous and “that an instruction quote[d] from a statute does nothing to make either the statute, or the instruction, more understandable.” Maj. Op. at 691. The majority follows this statement with citations to cases in which specific intent in federal statutes was relevant. See id. at 691-92. However, these cases are not helpful here because they tell us nothing about the Washington instructions at issue. More revealing is the step the majority does not take. While claiming that the Washington statute is ambiguous, the majority stops well short of claiming that the statute is unconstitutionally vague. Effectively, the majority suggests that the instructions could be improved and that this infirmity alone is sufficient to bring this case within Estelle or In re Winship.

Contrary to the majority’s point is the Supreme Court’s recent decision in Brown v. Payton, 544 U.S. 133, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). In Brown, a California death penalty case, the trial court gave a “catchall instruction” (“factor (k)”) in the penalty phase that “repeated the text of the statute.” Id. at 137, 125 S.Ct. 1432. Payton asserted the instruction was ambiguous because it did not advise the jury that they, could consider his postcon-viction conduct and because the prosecutor had misstated the law in his argument to the jury. See id. at 138-39, 125 S.Ct. 1432. *712The California courts denied Payton relief, but we granted his petition for habeas relief under AEDPA because the trial court failed to correct the prosecutor’s misstatement and because the “instruction was likely to have misled the jury and it was an unreasonable application of th[e] Court’s cases for the California Supreme Court to have concluded otherwise.” Id. at 138-39, 141, 125 S.Ct. 1432. The Supreme Court reversed our judgment. Relying largely on Boyde v. California, just as the majority does here, see Maj. Op. at 683-84, the Court observed that even if the California court’s “conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review.” Id. at 143, 125 S.Ct. 1432.

Even accepting the broad statement from Estelle as “clearly established” law, the majority cannot, by any metric, demonstrate that the Washington courts’ judgment in this case was an “objectively unreasonable” application of the Court’s precedents in Estelle and In re Winship. As I have demonstrated, supra, there is not even a genuine ambiguity in the Washington instructions, much less one that is so obvious that it is “objectively unreasonable” of the Washington courts to neglect to correct it and requires our intervention. The majority has no cases to support its proposition, and no basis for its conclusion other than its own ipse dixit. In the end, the majority does not offer anything other than its own opinion to support its conclusion that the instruction is ambiguous. See Maj. Op. at 692. Improving Washington’s jury instructions is a noble enterprise, but it is not authorized by AEDPA.

V

Even if I thought there was some ambiguity in the instructions and that the Supreme Court’s jurisprudence was sufficiently clear, I could not find that “there is a ‘reasonable likelihood’ that the jury misapplied the ambiguous jury instructions.” Maj. Op. at 694 (quoting Estelle, 502 U.S. at 72, 112 S.Ct. 475). The majority makes much of the fact that the jury asked the court three questions about the jury instructions during its deliberation. See Maj. Op. at 693. But each time the jury asked a question, the court directed the jury’s attention to the precise paragraph of a constitutionally adequate instruction. It is hornbook law that “[a] jury is presumed to follow its instructions ... and is presumed to understand a judge’s answer to its question.” Weeks, 528 U.S. at 234, 120 S.Ct. 727. As the Supreme Court noted, “[t]o presume otherwise would require reversal every time a jury inquires about a matter of constitutional significance, regardless of the judge’s answer.” Id. The majority takes us one step closer to this reality.

The majority points to several concerns to rebut this presumption, but none comes close to kind of evidence needed to nullify the jury’s verdict. First, the majority concludes that the “reasonable likelihood” standard is met because “the evidence against Sarausad was thin.” Maj. Op. at 692-93. This is a remarkable leap of logic to posit that there is a causal relationship between the strength of the government’s case and the probability of jury confusion. The majority’s assertion finds no support in the record, and there is simply no precedent in any court, let alone clearly established law of the Supreme Court, to suggest that a jury is more likely to misunderstand its instructions because the government’s case is purportedly weak. We have previously concluded that an instructional problem is compounded by the thinness of the evidence, see Lankford v. Arave, 468 F.3d 578, 586-89 (9th Cir.2006), but we have *713not, as the majority does here, used the thinness of the evidence to prove the existence of the instructional problem.

Second, the majority highlights that the prosecutor “clearly and forcefully” argued an “ ‘in for a dime, in for a dollar’ theory of accomplice liability.” Maj. Op. at 693. But the majority cannot know the impact of this argument on the jury, other than the fact that the jury returned a guilty verdict and the majority doubts that conclusion. Even if the prosecutor’s statements were incorrect as a matter of Washington law, the majority cannot avoid the fact that the jury was properly instructed and that we presume that the jury understood and followed those instructions. See Weeks, 528 U.S. at 234, 120 S.Ct. 727; Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).7 While prosecutorial misconduct may be independent grounds for overturning a conviction, mere misstatements have no place in an inquiry into whether the jury was properly instructed (Weeks) or whether the instructions were ambiguous (Estelle). The majority cites no cases to support its theory, much less clearly established precedent from the Supreme Court.

Third, the majority asserts that “in its notes sent to the judge during deliberations, the jury demonstrated substantial confusion about what the State was required to prove.” Maj. Op. at 693. But juror questions in and of themselves are not evidence of constitutional error. See Weeks, 528 U.S. at 234-36, 120 S.Ct. 727. Rather, the relevant inquiry is whether the trial court properly responded to the jury’s questions, which it did.

On the third day of its deliberations, the jury requested “clarification on instruction No. 11 & 12 Element (3); does the ‘intent’ apply to (the defendant only) or to (the defendant or his accomplice)?” Instructions 11 and 12 were the first-degree murder instructions, and not the accomplice liability instructions, which were 46 and 47. The judge then pointed the jury to the latter: “Refer to instructions 46 and 47 and consider your instructions as a whole.” There was nothing erroneous about the judge’s response, as he directed the jury to the specific instructions (35 instructions later) regarding accomplice liability as related to first-degree murder.

Three days later, on the sixth day of its deliberations, the jury sent the court the following note:

Reference: Instruction 17 in “the crime of murder in the second degree (intentional).” Question: Does intentional apply to only the defendant or only his accomplice?”

The judge responded that the jury should “[rjefer to instructions 45 & 46 and consider the instructions as a whole.” Instructions 45 and 46 were the accomplice liability instructions for the second-degree murder charge. There was nothing erroneous about the judge’s response this time either, as he directed the jury to the specific instructions (28 instructions later) regarding accomplice liability as related to second-degree murder.

Finally, on the seventh day of deliberations, the jury sent the following note:

We are having difficulty agreeing on the legal definition and concept of “accomplice.” Question: When a person will*714ing[ly] participates in a group activity, is that person an accomplice to any crime committed by anyone in the group?

The judge again instructed the jury to “[rjeread instructions # 45, 46, 47 and 48, and consider your instructions as a whole.” There was nothing erroneous about the judge’s response, as he directed the jury to the specific and unambiguous instructions regarding accomplice liability.

The jury’s questions are certainly understandable given the facts, the complexity of the issue, and the length of the jury instructions. The questions were discerning ones and demonstrate that the jury was proceeding deliberately and methodically. The questions were not the same inquiry repeated three times. The first question related exclusively to accomplice liability and first-degree murder, while the second question — raised three days later— related exclusively to accomplice liability and second-degree murder. The fact that the jurors deliberated for two full days before asking the second question indicates that the jury considered accomplice liability for the first-degree murder charge, and then moved on to the second-degree murder charge. These questions do not demonstrate a complete misunderstanding of accomplice liability.

To my mind, the third question is the only one that even potentially illustrates that the jury experienced some confusion on this issue. And we know that the jury had a difficult time agreeing on a definition of accomplice liability because it said so. There is nothing wrong with that; we permit juries to ask questions precisely so that a judge can direct them to the answer. The trial court performed by the book, directing the jury’s attention to the relevant accomplice liability instructions, which were unambiguous and correct statements of Washington law. The following day the jury returned a verdict. Under Weeks, our inquiry ends there.

Moreover, there is other evidence that shows that the jury was satisfied with the judge’s directions and reached a reliable verdict. The jurors deliberated for some time after the judge’s responses. See Weeks, 528 U.S. at 235, 120 S.Ct. 727 (“It is also significant ... that the jurors deliberated for more than two hours after receiving the judge’s answer to their question.”). Further, “[tjhis particular jury demonstrated that it was not too shy to ask questions, suggesting that it would have asked another if it felt the judge’s response unsatisfactory.” Id. at 235-36, 120 S.Ct. 727.

Fourth and finally, the majority points again to the prosecutor’s “in for a dime, in for a dollar” argument, and suggests that “the Washington courts were able to deny Sarausad’s PRP only after misstating the record and ignoring th[at] argument.” Maj. Op. at 693. However, the majority gives too much weight to its asserted chronology. Although accomplice liability was clarified in Roberts and Cronin, these cases did not rewrite Washington law. Rather, cases such as Davis established the requirement that an accomplice must have knowledge of the intended crime, and the jury instructions at Sarausad’s trial reflect that long-standing principle. See supra at 705 n. 5. Therefore, the Washington courts were not in the position, as hinted by the majority, of needing to misstate the record to deny Sarausad’s petition under changed law. Moreover, it is the province of these various Washington authorities to decipher the arguments made at Sarausad’s trial. Although the majority may opine that “the prosecutor repeatedly made precisely the argument that the Court of Appeals and the Court Commissioner stated she did not make,” Maj. Op. at 693, this conclusion is not for *715us to draw. Accepting the ultimate characterization by Washington authorities, I would find that the jury was properly instructed and, therefore, there is not a “reasonable likelihood” that the jury applied the instructions in an unconstitutional manner.8

* * ❖ *

In sum, the Washington courts’ rulings are not “contrary to ... clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Sarausad’s jury was properly instructed, and we are required to find that they followed their instructions, even when the case is close. I would reverse the judgment of the district court.

I respectfully dissent.

. I concur in the majority’s characterization of our task under AEDPA in reviewing a state court’s decision applying Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). I agree with the majority that our review of a state court's Jackson review occurs under 28 U.S.C. § 2254(d)(1), and not 28 U.S.C. § 2254(d)(2), see Maj. Op. at 678, although I take issue with the majority's particular application of § 2254(d)(1).

. Wash. Rev.Code § 9A.08.020 (l)-(2) provides, in pertinent part:

(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.
(2) A person is legally accountable for the conduct of another person when:
(c) He is an accomplice of such other person in the commission of the crime.

. For convenience, I have italicized the words in instruction 46 that were added to § 9A.08.020(3), and I have [bracketed] the words that appear in § 9A.08.020(3) but were omitted in the instruction:

A person is an accomplice [of another person] in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either (1) solicits, commands, encourages, or requests [such other] another person to commit [it] the crime [;] or (2) aids or agrees to aid [such other] another person in planning or committing [it] the crime.

. Section 9A.08.020 was taken from the Model Penal Code 2.06 (1985). See Roberts, 142 Wash.2d at 510, 14 P.3d at 735.

. The majority incorrectly states that "[a]t the time of the trial, it was widely thought that Washington law did not require the accomplice to know what particular crime the principal intended to commit.” Maj. Op. at 684. In In re Domingo, the Washington Supreme Court expressly clarified that State v. Cronin, 142 Wash.2d 568, 14 P.3d 752 (2000), and Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000), did not effect a substantial change in accomplice liability law, because Davis, 101 Wash.2d 654, 682 P.2d 883 (1984), and State v. Rice, 102 Wash.2d 120, 683 P.2d 199 (1984), established that an accomplice must have general knowledge of the specific crime committed by the principal. See 155 Wash.2d 356, 362-66, 119 P.3d 816, 819-21 (2005).

. If In re Winship has clearly established anything, it is that the state must prove every element of the offense beyond a reasonable doubt, including juvenile proceedings. See 397 U.S. at 363-64, 368, 90 S.Ct. 1068. Sa-rausad does not contend, nor do I understand the majority to challenge, that the jury was not properly instructed with respect to proof beyond a reasonable doubt. See Victor, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (considering the constitutionality of variations on that standard). I am not sure that citation to In re Winship contributes anything to Sarau-sad’s particular challenge under AEDPA.

. The presumption "is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant." Richardson, 481 U.S. at 211, 107 S.Ct. 1702. As such, the presumption favors the state when the instructions are correct and favors the defendant when the instructions are in error. See, e.g., Martinez v. Garcia, 379 F.3d 1034 (9th Cir.2004).

. I object to the majority’s sub-silentio reliance on post-deliberation affidavits from repentant jurors. See Maj. Op. at 686. Although the majority ultimately disclaims reliance on the affidavits, see id. at 694, the majority protests too much. Even mentioning the affidavits is objectionable for all the reasons the Federal Rules of Evidence have emphatically rejected a juror’s ”testi[mony] as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror’s mind or emotions.” Fed. R. Evid. 606(b). We have held, for example, that Rule 606(b) "bars consideration of jurors’ statements that they ignored the court’s instructions and discussed a defendant’s failure to testify during deliberations.” United States v. Rutherford, 371 F.3d 634, 640 (9th Cir.2004); see also United States v. Falsia, 724 F.2d 1339, 1343 (9th Cir.1983). This "buyer’s remorse” has the potential to turn justice on its head, as individual jurors, pursued by counsel and pressured to explain the verdict, are turned into witnesses and advocates.