                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

TIMOTHY LEE BYRD,                         
              Petitioner-Appellant,
                v.                              No. 06-15977
GAIL LEWIS, WARDEN, PLEASANT
VALLEY STATE PRISON; EDMUND G.                   D.C. No.
                                              CV-02-02013-MCE
BROWN, ATTORNEY
                                                  OPINION
GENERAL FOR THE STATE OF
CALIFORNIA,
            Respondents-Appellees.
                                          
       Appeal from the United States District Court
           for the Eastern District of California
       Morrison C. England, District Judge, Presiding

                   Argued and Submitted
         October 15, 2007—San Francisco, California

                    Filed December 11, 2007

   Before: J. Clifford Wallace and Johnnie B. Rawlinson,
       Circuit Judges, and Jane A. Restani,* Judge.

               Opinion by Judge Rawlinson;
 Partial Concurrence and Partial Dissent by Judge Wallace




   *The Honorable Jane A. Restani, Chief Judge, United States Court of
International Trade, sitting by designation.

                               16277
16280                   BYRD v. LEWIS


                         COUNSEL

Krista Hart (briefed and argued), Sacramento, California, for
the petitioner-appellant.

Edmund G. Brown Jr. (briefed), Dane R. Gillette (briefed),
Michael P. Farrell (briefed), Carlos A. Martinez (briefed), and
Wanda Hill Rouzan (briefed and argued), Sacramento, Cali-
fornia, for the respondents-appellees.


                         OPINION

RAWLINSON, Circuit Judge:

   Timothy Byrd (Byrd) appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his
jury conviction for unlawfully taking a vehicle under Cal.
Vehicle Code § 10851(a). We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We conclude that the state court’s
application of harmless error review to the trial court’s jury
instruction lowering the prosecution’s burden of proof was
contrary to or an unreasonable application of clearly estab-
lished Supreme Court precedent. We reverse the district
court’s denial of Byrd’s habeas petition as to that issue. We
otherwise affirm the district court’s decision.
                             BYRD v. LEWIS                           16281
       I.   FACTS AND PROCEDURAL HISTORY1

                           A.    The Crime

   At noon on June 26, 1999, Lorena Coen (Coen) began
drinking at her home. Later that afternoon she drove her 1984
Ford Mustang to Lewey G’s bar, where she continued to drink
until she became intoxicated. Coen attempted to leave Lewey
G’s but realized that she was too intoxicated to drive. Instead,
Coen decided to park her car one-half block away, across the
street from the house of two acquaintances.

  Eugean Allen (Allen), a man Coen had known for years,
who is also Byrd’s cousin, saw Coen and invited her to a
party. Coen continued to drink at the party. During the course
of the party, Coen drove between the party and Lewey G’s
with other people in the car, possibly including Byrd. Coen
subsequently called her boyfriend to take her home, but she
could not find her keys. She locked her car manually, intend-
ing to return for it the following day. However, when Coen’s
boyfriend returned for the car, he discovered that it was not
where Coen had parked it. Coen then reported her car stolen.

   A few days later, two California Highway Patrol Officers
stopped Byrd. Initially, Byrd falsely identified himself. Upon
investigation, the officers discovered that the car Byrd was
driving belonged to Coen. A search of the car revealed that
the radio had been removed and that the headliner was torn.
After being given his Miranda2 warnings, Byrd explained that
a girl named “Lorie” loaned him the car.
  1
     The facts are taken from the opinion of the California Court of Appeal.
See People v. Byrd, No. C034582, 2001 WL 1480516, at *1-3 (Cal. Ct.
App. Nov. 21, 2001), as modified on denial of reh’g (Dec. 20, 2001). The
California Court of Appeal’s findings of fact are presumed correct “unless
[Byrd] can prove otherwise by clear and convincing evidence.” Sanders
v. Lamarque, 357 F.3d 943, 948 (9th Cir. 2004) (citations omitted).
   2
     Miranda v. Arizona, 384 U.S. 436 (1966).
16282                      BYRD v. LEWIS
   After retrieving her car, Coen confirmed that the radio had
been ripped out and the headliner was gone. She also noted
that things she had kept in her car—some clothes, her purse
and her son’s toys—were missing. Additionally, the car
would no longer move in reverse. By the time Coen got home,
the car would not move forward either.

                          B.   The Trial

    Byrd was charged with, among other things, unlawfully
driving or taking a vehicle in violation of Cal. Veh. Code
§ 10851(a). At trial, Coen testified that she did not recall
whether she gave her keys to Byrd. However, she explained
that she did not believe that she lent Byrd her car for several
days because she had never done so before, and needed her
car to drive to work.3 Sandra Coen, Coen’s sister-in-law, testi-
fied that Coen usually did not lend her car to anyone. Allen
testified for the defense, recounting that Coen told Byrd that
Byrd could have the keys to her car as she no longer wanted
it.

   The jury convicted Byrd, and he was sentenced to a prison
term of twenty-five years to life.

                  C.   Post-Trial Proceedings

   The California Court of Appeal affirmed Byrd’s conviction.
The California Supreme Court summarily denied Byrd’s peti-
tion for review, after which Byrd filed a federal petition for
a writ of habeas corpus. Byrd’s case was referred to a Magis-
trate Judge who recommended denying Byrd’s habeas peti-
tion. The Magistrate Judge’s Findings and Recommendations
were fully adopted by the district court. The district court sub-
sequently granted a certificate of appealability on the follow-
ing issues raised by Byrd on appeal: (1) “[the trial court’s]
  3
   “While her car was missing, [Coen] temporarily lost her job.” Byrd,
2001 WL 1480516, at * 2.
                               BYRD v. LEWIS                         16283
failure to sua sponte instruct the jury on mistake of fact,” and
(2) “the trial court’s jury instruction that the jury could find
specific intent for vehicle theft based on [Byrd’s] retention of
the car beyond the scope of consent[.]”

                II.    STANDARD OF REVIEW

   We review de novo the district court’s decision to deny
Byrd’s habeas petition. Nguyen v. Garcia, 477 F.3d 716, 721
(9th Cir. 2007). Because Byrd filed his habeas petition after
April 24, 1996, his appeal is governed by the Antiterrorism
and Effective Death Penalty Act (AEDPA). See Gill v. Ayers,
342 F.3d 911, 917 (9th Cir. 2003). Under AEDPA, Byrd’s
petition can be granted only if the state court determination
resolving his claims “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law . . .” or
“was based on an unreasonable determination of the facts . . .”
28 U.S.C. § 2254(d). “A state court’s decision is contrary to
clearly established federal law if it (1) applies a rule that con-
tradicts the governing law set forth in Supreme Court cases,
or (2) confronts a set of facts materially indistinguishable
from a Supreme Court decision and nevertheless arrives at a
different result.” Gibson v. Ortiz, 387 F.3d 812, 814 (9th Cir.
2004) (citations omitted). “A state court’s decision is an
unreasonable application of clearly established federal law if
the state court identifies the correct governing legal principles
from Supreme Court decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. (citation,
alteration and internal quotation marks omitted).

                        III.    DISCUSSION4
  4
   In considering potential state court error, we look to the “last reasoned
decision of the state court as the basis of the state court’s judgment.”
Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) (citation
omitted). The California Court of Appeal’s decision affirming Byrd’s con-
viction represents the last reasoned state court decision.
16284                      BYRD v. LEWIS
               A.    Mistake-of-Fact Instruction

   Byrd contends that because there was evidence demonstrat-
ing that Coen gave him permission to drive her car, his due
process rights were violated by the trial court’s failure to sua
sponte instruct the jury regarding mistake-of-fact. Accord-
ingly, Byrd argues, the California Court of Appeal’s ruling
that “substantial evidence supported the [mistake-of-fact]
instruction, but . . . the trial court’s error in failing to give it
was not prejudicial[,]” Byrd, 2001 WL 1480516, at * 3, was
contrary to clearly established Supreme Court precedent. We
disagree.

   [1] “Failure to instruct on the defense theory of the case is
reversible error if the theory is legally sound and evidence in
the case makes it applicable.” Beardslee v. Woodford, 358
F.3d 560, 577 (9th Cir. 2004) (citation omitted).5 However, to
obtain relief, “[Byrd] must show that the alleged instructional
error had substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Clark v. Brown, 450 F.3d 898, 905
(9th Cir. 2006), as amended (citations and internal quotation
marks omitted); see also Beardslee, 358 F.3d at 578. A “sub-
stantial and injurious effect” means a “reasonable probability”
that the jury would have arrived at a different verdict had the
instruction been given. Clark, 450 F.3d at 916. To decide
whether Byrd was prejudiced, we consider: (1) the weight of
evidence that contradicts the defense; and (2) whether the
defense could have completely absolved the defendant of the
charge. See Beardslee, 358 F.3d at 578. “The burden on
[Byrd] is especially heavy where . . . the alleged error
involves the failure to give an instruction.” Clark, 450 F.3d at
904 (citation and internal quotation marks omitted).
  5
    Although circuit caselaw is not governing law under AEDPA, this
Court may look to circuit precedent in determining what law is clearly
established. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.
2000), as amended.
                         BYRD v. LEWIS                     16285
   [2] Notwithstanding Byrd’s innocuous explanations for the
facts that he: (1) kept Coen’s car for five days; (2) did not
attempt to return Coen’s car; and (3) removed personal effects
from Coen’s car, the other evidence overwhelmingly demon-
strates that no reasonable juror would have concluded that
Byrd actually believed that Coen loaned Byrd her car tempo-
rarily or gave it to him. As the California Court of Appeal
reasoned:

    [Byrd’s] claim that Coen lent him the car is convinc-
    ingly belied by the following facts: . . . [T]he car
    radio [was removed from the car] and . . . the interior
    of the car had been damaged . . . . It is even less like-
    ly[ ] that the jury would have thought [Byrd]
    believed Coen gave him the car permanently. This
    would have required the jury to conclude that [peti-
    tioner] believed a thoroughly intoxicated woman,
    whom he barely knew, would intentionally give him
    the gift of a 1984 Ford Mustang containing her per-
    sonal items including her purse.

Byrd, 2001 WL 1480516, at * 6; see also Beardslee, 358 F.3d
at 578 (concluding that failure to provide a correct mistake-
of-fact jury instruction was not prejudicial where “a signifi-
cant amount of evidence countered the mistake-of-fact theo-
ry.”). Accordingly, the California Court of Appeal’s ruling
regarding failure of the trial court to sua sponte instruct the
jury on mistake-of-fact was not contrary to or an unreasonable
application of clearly established Federal law. We affirm the
district court’s denial of habeas relief as to this claim.

             B.   Scope-of-Consent Instruction

   Byrd also challenges the trial court’s scope-of-consent
instruction, which provided:

    The failure to return a vehicle that was obtained by
    consent in a timely manner does not by itself estab-
16286                        BYRD v. LEWIS
      lish a violation of section 10851 . . . . You should
      determine from the circumstances whether the con-
      tinued use of a vehicle both as to the length of time
      and the manner clearly and substantially exceeded
      the scope of the consent given. If it does not clearly
      and substantially exceed the scope of the consent
      given, then the required criminal intent would not be
      clearly established.

Byrd, 2001 WL 1480516, at * 7 (emphasis added).6 According
to Byrd, this instruction diluted the prosecution’s burden of
proof, thereby violating his right to due process. The Califor-
nia Court of Appeal agreed, reasoning that because a “clearly
established” standard was applied to define the requisite crim-
inal intent, “it is reasonably likely the jury did not find that
[Byrd] exceeded Coen’s scope of consent beyond a reason-
able doubt . . .” Byrd, 2001 WL 1480516, at * 10. However,
the California Court of Appeal concluded that harmless error
analysis was applicable because the instruction was “an error
that acknowledges the element, but subjects the element to a
lesser burden of proof.” Id. at * 11.

   [3] “Any jury instruction that reduces the level of proof
necessary for the Government to carry its burden is plainly
inconsistent with the constitutionally rooted presumption of
innocence.” Gibson, 387 F.3d at 820 (citation, alterations, and
internal quotation marks omitted). In this case, the scope-of-
consent instruction was defective because it impermissibly
lowered the state’s burden of proof on whether Byrd took
Coen’s car without her consent. Indeed, as in Gibson and as
expressly noted by the California Court of Appeal, the scope-
  6
    The scope-of-consent instruction was given both orally and in writing.
The oral scope-of-consent instruction differed from the written instruction,
adding the word “clearly” to modify the criminal intent requirement. How-
ever, because Byrd’s contention is that the instruction diluted the beyond-
a-reasonable doubt standard, the difference in the oral and written instruc-
tions is immaterial.
                          BYRD v. LEWIS                       16287
of-consent instruction permitted the jury to “conclude[ ] [that
Byrd’s] ‘criminal intent’ to keep the car beyond [Coen’s] per-
mission need only be ‘clearly established’ . . . if the jury
decided [Byrd] ‘clearly and substantially exceeded’ the scope
of Coen’s consent.” Byrd, 2001 WL 1480516, at * 10; cf. Gib-
son, 387 F.3d at 822 (concluding that jury instructions allow-
ing the jury to conclude based on a preponderance of the
evidence that petitioner committed uncharged offenses, and
infer based on the uncharged offenses that he had committed
the charged offense impermissibly lowered the government’s
burden of proof). Ultimately, the California Court of Appeal
held that “it is reasonably likely the jury did not find that
[Byrd] exceeded Coen’s scope of consent beyond a reason-
able doubt, thus, violating [Byrd’s] right to due process of
law.” Byrd, 2001 WL 1480516, at * 10.

   [4] When considering a claim of instructional error, “the
proper inquiry is not whether the instruction ‘could have’
been applied in an unconstitutional matter, but whether there
is a reasonable likelihood that the jury did so apply it.” Victor
v. Nebraska, 511 U.S. 1, 6 (1994) (emphasis in the original).7
Indeed, “[the] challenged instruction must be considered in
light of the full set of jury instructions and the trial record as
a whole.” Gibson, 387 F.3d at 821 (citation omitted); see also
Victor, 511 U.S. at 5.

   [5] Several general jury instructions were read that
described the beyond-a-reasonable doubt burden of proof.
However, as the California Court of Appeal reported, during
deliberations, “[t]he jury asked, ‘On second element permis-
sion, if the permission was initially given, when does permis-
sion run out[?]’ ” (internal quotation marks and alteration
omitted). Byrd, 2001 WL 1480516, at * 7. “In response, the
court instructed the jury in writing to see ‘instruction No. 23,’
which was the scope of consent instruction.” Id. As discussed,
  7
   A “reasonable likelihood” is lower than the “more likely than not”
standard. See Boyde v. California, 494 U.S. 370, 380 (1990).
16288                    BYRD v. LEWIS
this instruction does not reference the correct beyond-a-
reasonable-doubt burden of proof as to scope-of-consent.
Moreover, the fact that during deliberations the trial judge
directed the jury to this instruction, without referencing any
of the beyond-a-reasonable doubt instructions, increased the
likelihood that the jury applied the lowered burden of proof
reflected in the instruction. See United States v. Miller, 546
F.2d 320, 324 n.3 (9th Cir. 1976) (explaining that rereading
particular instructions may “over-emphasize” them to the
jury). Thus, the state court’s determination that the scope-of-
consent instruction impermissibly lowered the prosecution’s
burden of proof on an element of the offense was not contrary
to or an unreasonable application of Supreme Court law
regarding proof of guilt beyond a reasonable doubt.

   [6] We reach a different conclusion regarding the Califor-
nia Court of Appeal’s reasoning that “an error that acknowl-
edges [an] element, but subjects the element to a lesser burden
of proof” constitutes trial error. Byrd, 2001 WL 1480516, at
* 11; cf. Gibson, 387 F.3d at 824 (holding that an instruction
permitting the jury to find the defendant guilty by a prepon-
derance of the evidence “constituted structural error within
the meaning of Sullivan [v. Louisiana, 508 U.S. 275 (1993)]”)
(citation omitted). In Sullivan, the Supreme Court held that
where a jury instruction “consists of a misdescription of the
burden of proof, [it] vitiates all the jury’s findings.” Sullivan,
508 U.S. at 281 (emphasis in the original). Indeed, according
to Sullivan, “[d]enial of the right to a jury verdict of guilt
beyond a reasonable doubt is certainly [structural error].” Id.
Once the California Court of Appeal determined that the
scope-of-consent instruction impermissibly lowered the gov-
ernment’s burden of proof as to the consent element of the
crime, application of harmless error review was no longer an
option. See id. Accordingly, the California Court of Appeal’s
court’s holding that the erroneous scope-of-consent instruc-
tion was harmless was contrary to or an unreasonable applica-
tion of clearly established federal law. See id. We reverse the
district court’s denial of habeas relief on this claim.
                         BYRD v. LEWIS                   16289
                   IV.    CONCLUSION

   Because the trial court’s failure to sua sponte give a
mistake-of-fact instruction did not prejudice Byrd, the state
court’s denial of this claim was not contrary to or an unrea-
sonable application of Supreme Court precedent. However,
the state court’s harmless error review of the jury instruction
lowering the prosecution’s burden of proof was contrary to or
an unreasonable application of Supreme Court precedent.
Accordingly we AFFIRM the district court’s denial of relief
on Byrd’s mistake-of-fact instruction claim and REVERSE
the district court’s denial of relief on Byrd’s burden-of-proof
instruction claim. We REMAND with instructions that the
district court grant the writ of habeas corpus unless the State
grants Byrd a new trial within a reasonable period of time.

 AFFIRMED in part, REVERSED in part and
REMANDED. Each party is to bear its costs on appeal.



WALLACE, Circuit Judge, concurring and dissenting:

   Although I agree with the majority on the mistake of fact
issue, I respectfully dissent from the remainder of the majori-
ty’s decision on two grounds. First, I do not believe it was
reasonably likely that the jury applied the scope-of-consent
instruction in an unconstitutional manner, and I would hold
that the California Court of Appeal unreasonably applied
Supreme Court precedent when it reached the opposite con-
clusion. Second, even if the court were correct on the first
issue, I do not believe the California Court of Appeal unrea-
sonably applied Supreme Court law when it reviewed the dis-
puted instruction for harmless error.

                              I.

  The Supreme Court has established that “in reviewing an
ambiguous instruction . . . we inquire whether there is a rea-
16290                    BYRD v. LEWIS
sonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.” Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks
omitted). Indeed, “the proper inquiry is not whether the
instruction ‘could have’ been applied in an unconstitutional
manner, but whether there is a reasonable likelihood that the
jury did so apply.” Victor v. Nebraska, 511 U.S. 1, 6 (1994).

   The jury instruction at issue here was ambiguous. The Cali-
fornia Court of Appeal was therefore required, under Estelle,
to determine whether it was reasonably likely that the jury
applied the instruction in an unconstitutional manner. The
court held that it was, based on a question posed by the jury
during deliberations. The jury asked: “On second element per-
mission, if the permission was initially given, when does per-
mission run out[?]” The trial court responded by directing the
jury to the disputed scope-of-consent instruction.

   Prior to deliberations, the court provided the jury with three
clearly-enumerated elements of the charged crime: (1) taking
or driving of a vehicle, (2) without consent, and (3) with spe-
cific intent to deprive the owner of title or possession. Thus,
when the jury inquired about the “second element” they were
referring specifically to the element of consent.

   To understand why it was unreasonable for the California
Court of Appeal to conclude that the jury unconstitutionally
applied the instruction, it is important to review the Court of
Appeal’s somewhat convoluted textual interpretation of the
instruction. The court analyzed the last two sentences of the
instruction independently. With respect to the first, the court
held that it imposed a higher burden of proof on the consent
element, and therefore the “instructional shortcoming was to
defendant’s benefit and it is not error as to him.” People v.
Byrd, No. C034582, 2001 WL 1480516, at *9 (Cal. Ct. App.
Nov. 21, 2001), as modified on denial of reh’g (Dec. 20,
2001). Therefore, because the jury asked specifically about
the “second element” of consent, under the Court of Appeal’s
                           BYRD v. LEWIS                       16291
own analysis, the instruction the jury received was free from
constitutional error.

   It was only with respect to the final sentence of the instruc-
tion that the California Court of Appeal found constitutional
error. That sentence involved the interplay between the ele-
ments of consent and intent: “If [the use of the vehicle] does
not clearly and substantially exceed the scope of the consent
given, then the required criminal intent would not be clearly
established.” The court held that, once the word “not” was
removed from the sentence, the instruction impermissibly
allowed the jury to find intent based solely on a finding of
consent. Furthermore, the court held that the jury might make
such a finding at a burden lower than beyond a reasonable
doubt. All of these concerns, however, dealt with the element
of intent. Had the jury requested clarification on the “third
element,” and been directed to the disputed instruction, it
would have been reasonable for the California Court of
Appeal to conclude the jury had applied it in an unconstitu-
tional manner. However, because the jury only inquired about
consent, then under the logic of the court’s own interpretation,
no constitutional concerns were directly implicated.

  The California Court of Appeal offers only one hypotheti-
cal situation that could potentially explain how the jury, con-
cerned only with the “second element,” would have
nonetheless applied an unconstitutionally lowered burden of
proof. The court reasoned:

      Upon consideration of [the consent element] the jury
      may have decided that Coen initially gave defendant
      permission to take her car for the evening, at which
      point it would have turned to the court’s instruction
      on the effect of Coen’s consent . . . on the second
      element of the offense.1 So doing, it may have con-
  1
    Although the court uses the term “second element” it appears to be
referring to the third element of intent.
16292                    BYRD v. LEWIS
    cluded defendant’s “criminal intent” to keep the car
    beyond the owner’s permission need only be “clearly
    established” and that it could be “clearly estab-
    lished,” if the jury decided defendant “clearly and
    substantially exceeded” the scope of Coen’s consent.
    Thus, we conclude it is reasonably likely the jury did
    not find that defendant exceeded Coen’s scope of
    consent beyond a reasonable doubt, thus, violating
    defendant’s right to due process of law.

Byrd, 2001 WL 1480516, at * 10. Under this reasoning, to the
extent I can understand it, the jury would have been required,
initially, to read out the word “not” from the instructions. It
would have then needed to consider how the element of con-
sent affected the element of intent. Finally, the jury would
have been required to import a lower standard of proof from
the intent element when making its consent determination. I
do not believe it was reasonably likely that any jury would
engage in such tortured analysis. That should have ended this
case.

                               II.

   But, the majority holds that the California Court of Appeal
unreasonably applied established Supreme Court law when it
reviewed the disputed jury instruction for harmless error. As
argued above, I do not believe it is reasonably likely that the
jury actually applied the instructions in an unconstitutional
manner, so I would affirm without reaching the issue of struc-
tural error. However, even assuming the jury actually applied
the instruction unconstitutionally, under the facts of this case,
I do not believe Supreme Court precedent compelled the Cali-
fornia Court of Appeal to conclude there was structural error.
Therefore, I depart from the majority’s analysis.

  The majority points to Sullivan v. Louisiana, 508 U.S. 275
(1993), for the proposition that any time a jury instruction
“consists of a misdescription of the burden of proof, [it] viti-
                         BYRD v. LEWIS                     16293
ates all the jury’s findings.” Id. at 281. I do not believe Sulli-
van can be stretched to such a broad proposition. In Sullivan,
the trial court gave the jury a single definition of “reasonable
doubt.” Id. at 277. That definition was unconstitutional, and
it infected all of the jury’s findings. The Court only found that
the instruction “vitiates all the jury’s findings,” because the
instruction applied to all of the jury’s findings. Id. at 281. Not
surprisingly, the Supreme Court held that there was nothing
“upon which harmless-error scrutiny can operate.” Id. at 280.

   The facts of this case are far different. On several occa-
sions, the trial court instructed the jury that each factual find-
ing and element of the crime had to be supported by proof
beyond a reasonable doubt. Under the California Court of
Appeal’s analysis, it was only with respect to the single issue
of consent that the jury could — through its tortured reading
of the instruction — potentially have determined that a lower
burden was appropriate. Unlike Sullivan, in which all of the
jury’s findings were infected, the error in this case was dis-
crete. It was limited to a single hypothetical interpretation of
a single sentence with respect to a single element of the crime.
Therefore, I do not believe it was an unreasonable application
of Supreme Court precedent for the court to analogize this
case more closely to Pope v. Illinois, 481 U.S. 497 (1987), in
which the Court applied harmless error review to jury instruc-
tions that misstated a single element of the offense.

   Finally, although the facts of our decision in Gibson v.
Ortiz, 387 F.3d 812 (9th Cir. 2004) are more analogous than
those of Sullivan, “the only definitive source of clearly estab-
lished federal law under AEDPA is the holdings . . . of the
Supreme Court as of the time of the state court decision.”
Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While
circuit law, like Gibson, may provide “persuasive authority”
for purposes of determining whether a state court decision is
an unreasonable application of Supreme Court precedent,
“only the Supreme Court’s holdings are binding on the state
courts and only those holdings need be reasonably applied.”
16294                   BYRD v. LEWIS
Id. Because the facts of this case are materially distinguish-
able from those in Sullivan, I conclude it was not an unreason-
able application of clearly established federal law for the
court to apply harmless error review.
