               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BRYANT KEITH WILLIAMS,                   No. 11-57255
             Petitioner-Appellant,
                                            D.C. No.
                v.                       2:10-cv-04053-
                                             AG-OP
GARY SWARTHOUT, Warden,
           Respondent-Appellee.            OPINION


     Appeal from the United States District Court
        for the Central District of California
     Andrew J. Guilford, District Judge, Presiding

                Argued and Submitted
          June 4, 2014—Pasadena, California

                Filed October 23, 2014

      Before: Stephen Reinhardt, John T. Noonan,
         and Mary H. Murguia, Circuit Judges.

              Opinion by Judge Noonan;
              Dissent by Judge Murguia
2                   WILLIAMS V. SWARTHOUT

                           SUMMARY*


                          Habeas Corpus

    Reversing the district court’s denial of Bryant Keith
Williams’s habeas corpus petition and remanding, the panel
held that the state trial court’s misstatement that Williams had
pled guilty – a misstatement made immediately before trial
commenced and not corrected until the jury began
deliberating – violated his due process rights by depriving
him of the presumption of innocence, and violated his Sixth
Amendment right to an impartial jury.

    The panel concluded that the California Court of Appeal
decided both Williams’s state and federal claims the same
way: it found error under both state and federal constitutional
law, but concluded that both were harmless. The panel held
that the constitutional error was not rendered harmless by
flawed curative instructions.

    Dissenting, Judge Murguia disagreed with the majority’s
conclusion that the California Court of Appeal found state
and federal constitutional error. She would hold that the
California Court of Appeal determined that Williams’s state
and federal constitutional rights were not violated, and that
this was not an unreasonable application of clearly
established federal law.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  WILLIAMS V. SWARTHOUT                         3

                          COUNSEL

William J. Capriola (argued), Sebastopol, California, and
John P. Ward, San Francisco, California, for Petitioner-
Appellant.

Yun K. Lee, Deputy Attorney General, Los Angeles,
California, for Respondent-Appellee.


                          OPINION

NOONAN, Circuit Judge:

    Petitioner Bryant Keith Williams seeks federal habeas
relief on the basis that the state trial court’s misstatement that
Williams had pled guilty—a misstatement made immediately
before trial commenced and not corrected until the jury began
deliberating—violated his due process rights by depriving
him of the presumption of innocence, and violated his Sixth
Amendment right to an impartial jury. We agree and reverse
the district court’s denial of habeas relief.

           FACTS AND PRIOR PROCEEDINGS

    At voir dire, on December 7, 2006, the trial judge stated:
“the defendant has entered a not guilty plea denying that he
is guilty of the[] three charges”—i.e., one count of false
imprisonment and two counts of sexual penetration by a
foreign object. On December 12, 2006, after the jury had
been sworn, the judge stated:

           I will now explain the presumption of
        innocence and the people’s burden of proof.
4                WILLIAMS V. SWARTHOUT

       The defendant has pleaded guilty to the
       charges. The fact that a criminal charge has
       been filed against the defendant is not
       evidence that the charge is true. You must not
       be biased against the defendant just because
       he has been arrested, charged with a crime, or
       brought to trial. A defendant in a criminal
       case is presumed to be innocent. This
       presumption requires that the people prove
       each element of a crime and special
       allegations beyond a reasonable doubt.

(Emphasis added.) Trial began that same day. On December
13, after closing arguments, the jury retired to deliberate.

    Less than an hour into deliberation, the jury sent the judge
the following note: “As a group we the jury feel we heard the
judge state the defendant pleaded guilty before the trial. Is
this true?”

    On the record, before counsel and Williams, the
judge—having reviewed the transcript—admitted his mistake.
Both the court reporter and the district attorney had noticed
the error, but neither said anything. Williams’s counsel
moved for a mistrial.

    The judge reserved decision on Williams’s motion. He
summoned the jury and explained his mistake. He stated that
“[t]he defendant has pleaded not guilty. That is why we are
having a trial. If he had pleaded guilty, we wouldn’t be
having a trial. Okay. So I’m sorry. It’s error on my part that
I omitted the word ‘not.’”
                  WILLIAMS V. SWARTHOUT                         5

    The judge admonished the jury that he had no knowledge
beyond their own as to Williams’s guilt or innocence. He
asked whether any juror would be unable to accept this as
true. The jurors were silent. He raised another concern:
whether “throughout the trial [jurors] didn’t pay attention
because [they] were thinking somehow that he must be guilt
[sic], so in that way it’s tainting the process of [their] ability
to be fair and impartial.” He asked the jury if that was so. The
jurors were silent. He reasserted that Williams had pled not
guilty; asked whether any juror would “not [be] able to set
aside [his misstatement] and be fair to the defendant”; and
invited the jury’s response. The jurors were silent. He ended
with this:

        Then is there anyone here who believes that
        based on the court’s mistake that they will not
        be able to give the defendant his rights in this
        case, the rights that I explained to you which
        is the right to remain silent, the presumption
        of innocence, the burden of proof, and the
        standard of proof beyond a reasonable doubt?
        Is there anyone here who believes that based
        on the court’s mistake they will not be able to
        uphold those rights for the defendant if [sic]
        question, please, raise your hand.

No hands were raised. The judge denied Williams’s motion
for a mistrial and the court adjourned for the day.

    Two days later, on December 15, 2006, juror number 1
(“Juror 1”) sent the judge the following letter:

        I wanted to let you know that I feel a bit
        uncomfortable with the happenings that took
6            WILLIAMS V. SWARTHOUT

    place on Wednesday regarding the court’s
    error in reading that the defendant had
    pleaded guilty to the charges. I know common
    sense says that if the defendant pleaded guilty,
    then there would not be a trial; and that idea
    definitely crossed my mind. However, I
    decided to override that thought due to the
    fact that the court read that he pleaded guilty,
    so I thought he was guilty throughout the
    entire trial. I did not just say to myself, “The
    judge must have made a mistake, I’ll just
    assume he pleaded not guilty.” I did not do
    this for several reasons:

    1. The defense (or prosecution) did not
       correct you in your error. Since that is a
       crucial part of the instructions, I would
       think that someone would have corrected
       the court’s error immediately.

    2. You originally said that the case would
       take 8 days, but then said it would only
       take a day and a half. I thought that might
       have to do with the defendant pleading
       guilty somewhere in between.

    3. In my opinion, the defense did not put up
       that great an effort to offer alternatives to
       the prosecution’s case. To me, another
       sign that the defendant had pleaded guilty.

    What I am saying in telling you these things is
    this: I went through the entire trial thinking
    that the defendant had pleaded, and was,
                 WILLIAMS V. SWARTHOUT                        7

       guilty. I saw everything through that lens. I
       think it may be possible to ignore that during
       deliberation, but I can not be sure of that. I
       also can’t be sure if I subconsciously have
       biases, given the false plea; and if I do have
       biases, those might play a role in deliberation.

       I am sorry I did not bring this to your
       attention on Wednesday, but I hadn’t fully
       recognized it. I leave it to your discretion as to
       whether I am fit to serve on this jury, or if an
       alternate is needed in my stead.

The judge read the letter into the record outside the jury’s
presence. Based on this letter, the judge stated, “I do not
believe that [Juror 1] is able to serve on this case.”

    Williams’s counsel again moved for a mistrial. She noted
that the judge had thoroughly explained his mistake, had
polled the jury, and yet “we know that at least one person had
grave reservations. And it’s not simply a matter of unringing
the bell . . . because this isn’t something that occurred at the
end of the case. This is something that occurred at the
beginning.” She added: “I don’t think it would be fruitful to
poll [the jury] now because the polling of the jury wasn’t
fruitful Wednesday evening, so I move for a mistrial.”

    The court summoned Juror 1. Asked to explain the letter,
Juror 1 told the judge:

       [B]ecause you had said that [Williams pled
       guilty] and no one objected to that or no one
       corrected you, that throughout the trial I had
       that in my mind and –
8                WILLIAMS V. SWARTHOUT

       [. . .]

       That he had pleaded guilty and so throughout
       the trial . . . if I heard evidence or heard
       testimony to support that fact, that I might
       have just said to myself, “Okay. That just
       supports his plea,” as opposed to really paying
       attention to everything . . . . I had that in my
       mind throughout the trial and I kind of looked
       at things to support the plea or what I thought
       was the plea.

Before being summoned, Juror 1 had told the rest of the
jurors about the note and its content. Juror 1 was dismissed.

    The judge convened the remaining jurors, including
alternates, and told them what had happened. The judge
stated:

       [Juror 1] was under the assumption that the
       defendant had pleaded guilty and so he looked
       at the evidence to support the plea. That is
       what he said to me.

       Now, it cannot be that a juror looks at the trial
       from that perspective because then he is not
       fair. Right? He is not a fair juror if he is
       looking at it to support the plea. So he was
       honest about how he looked at the evidence. I
       excused him. Now, this is very important,
       very, very important obviously that we ensure
       that the defendant gets a fair trial. And I fell
       on the sword on Wednesday and I am falling
       on the sword again. It was my mistake. My
                  WILLIAMS V. SWARTHOUT                        9

        error. Defendant has never pleaded guilty.
        Never. So in listening to the evidence, it could
        not be that you were listening to the evidence
        to support the plea. That would have been
        wrong. That is a point of view that you could
        not have in listening to the evidence because
        you are supposed to be fair and impartial
        throughout the entire trial including the time
        in which you are listening to the evidence.

    The judge then asked the jurors whether any of them felt
that they had listened to evidence through the lens of the
guilty plea. No juror spoke. Repeating the various
presumptions—silence, innocence, etc.—the judge polled
each juror individually, asking whether they could disregard
the court’s mistake. Every juror answered affirmatively.
Williams’s motion for a mistrial was denied and deliberations
proceeded.

   Williams was convicted of one count of false
imprisonment and one of two counts of forcible sexual
penetration by a foreign object. He was sentenced to a
minimum of fifty years.

    Williams appealed. The California Court of Appeal
agreed with Williams that “error occurred.” But the court
concluded that the error “was cured and was therefore
harmless under the circumstances.” The California Supreme
Court denied review without comment. On collateral review,
the federal district court agreed that the trial court had “fully
cured [its] error,” and that Williams had failed to negate the
10               WILLIAMS V. SWARTHOUT

presumption that the jury had followed the trial court’s
instructions.

     This appeal followed.

                         ANALYSIS

    We review de novo the district court’s denial of a petition
for habeas corpus. Cavitt v. Cullen, 728 F.3d 1000, 1004 (9th
Cir. 2013). Williams’s habeas petition is subject to the
requirements of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Under AEDPA, a federal
court may grant a habeas petition with respect to a “claim that
was adjudicated on the merits in State court” only if the state
court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
“was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d).

    AEDPA “leav[es] ‘primary responsibility’ for
adjudicating federal claims to the States.” Johnson v.
Williams, 133 S. Ct. 1088, 1097 (2013) (citing Woodford v.
Visciotti, 537 U.S. 19, 27 (2002)). It follows that absent
“evidence lead[ing] very clearly to the conclusion that a
federal claim was inadvertently overlooked in state court,” a
federal habeas court presumes that the state court reached a
petitioner’s fairly presented federal claim. Id.

   No such evidence exists here. Williams’s federal claims
were fully and squarely presented to the California Court of
Appeal: on direct appeal, Williams argued that the trial
court’s misstatement deprived him of his Sixth Amendment
                 WILLIAMS V. SWARTHOUT                      11

right to an impartial jury and his Fifth and Fourteenth
Amendment due process rights to the presumption of
innocence. Indeed, at oral argument, the State’s counsel
conceded that the state court had considered and ruled on the
federal constitutional question.

    The California Court of Appeal addressed both error and
prejudice in its decision: “According to Williams, the court’s
misstatement was error insofar as it undercut his rights to a
fair and impartial jury that was correctly instructed on the
burden of proof. . . . We agree that error occurred, but
conclude it was cured and was therefore harmless under the
circumstances.”

    We are required to defer to the California Court of
Appeal’s determination as to whether federal constitutional
error occurred. In this case, that deference favors Williams.
The state argues, correctly, that California does not require
state courts to “engage in a ‘separate constitutional
discussion’ where a defendant’s federal constitutional claim
merely provides a ‘gloss’” on the state law claim he raises
simultaneously. See also Johnson, 133 S. Ct. at 1094–95
(explaining that a state court will often feel no need to rule
expressly on a federal claim because “a line of state precedent
is viewed as fully incorporating a related federal
constitutional right . . . [and the] state appellate court may
regard its discussion of the state precedent as sufficient to
cover a claim based on the related federal right”). We
agree—but this leads to a conclusion opposite to that urged
by the state. Since one claim was “merely . . . a ‘gloss’” on
the other, it is only logical to conclude that the state court
decided both Williams’s state and federal claims in the same
way: it found error under both state and federal constitutional
law, but concluded that both were harmless. See Ayala v.
12                WILLIAMS V. SWARTHOUT

Wong Ayala v. Wong, — F.3d —, No. 09-99005, 2014 U.S.
App. LEXIS 3699, at *4–9 (9th Cir. amended Feb. 25, 2014),
reh’g en banc denied, — F.3d —, 2014 U.S. App. LEXIS
3698 (9th Cir. Feb. 25, 2014). Even if we were to read the
state court’s decision as finding error under state law
expressly, we can be sure it would not have reached the
opposite conclusion with respect to federal constitutional
error without even noting that determination. Given the
state’s concession that the state court did decide the federal
constitutional question, we see no possibility that it did not do
so in Williams’ favor.

    The determination that federal constitutional error
occurred was not only not contrary to clearly established law,
it was correct.

    Statements by the trial court are “viewed as definitive and
binding statements of the law” and carry great weight with
the jury. Boyde v. California, 494 U.S. 370, 384 (1990)
(citations omitted). While it is true that a single statement
must not be judged in artificial isolation, see Boyd v. United
States, 271 U.S. 104, 107 (1926), the trial judge’s
misstatement—not caught or corrected until deliberation—
demonstrably infected the entire trial. Wrote the jury after
testimony, argument of counsel, and receipt of exhibits in
evidence: “As a group, we the jury feel we heard the judge
state the defendant pleaded guilty before the trial.” (Emphasis
added.)

    Had the trial court’s misstatement gone uncorrected, it
would have violated Williams’s due process rights. In Dixon
v. Williams, — F.3d —, No. 10-17145, 2014 U.S. App.
LEXIS 11025 (9th Cir. amended June 11, 2014) (per curiam),
the trial court misstated the instruction for self-defense.
                    WILLIAMS V. SWARTHOUT                             13

Rather than stating, correctly, that an “honest but
unreasonable belief in the necessity for self-defense does not
negate malice,” the state trial court said “honest but
reasonable belief.” Id. at *4–5 (emphasis in original). That
error, this court held, was constitutionally infirm for reducing
the state’s burden. Id. at *15 (citing Cool v. United States,
409 U.S. 100, 104 (1972)). Here, had the trial court’s
misstatement gone uncorrected, it would have eliminated the
state’s burden entirely.1

     One juror, moreover, admitted that the judge’s
misstatement had impaired his ability to remain impartial—a
clear Sixth Amendment violation. See Duncan v. Louisiana,
391 U.S. 145, 153 (1968) (Sixth Amendment guarantees right
to trial by impartial jury); Irvin v. Dowd, 366 U.S. 717, 722
(1961) (same). Had the misstatement gone uncorrected, the
error would have been structural for “vitiat[ing] all the jury’s
findings.” Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)
(emphasis in original).

   But the trial judge attempted to correct the misstatement.
Did he succeed?

   1
       “The state court ‘d[id] not believe that a reasonable juror would
conclude that a trial was underway for a defendant who had pleaded guilty
after [also] being told the defendant’s guilt had to be proven beyond a
reasonable doubt.’ However, ‘general instructions on the State’s burden
of persuasion and the defendant’s presumption of innocence are not
‘rhetorically inconsistent with a conclusive . . . presumption [such as a
guilty plea],’ because ‘[t]he jury could have interpreted the two sets of
instructions as indicating that the [plea] was a means by which proof
beyond a reasonable doubt . . . could be satisfied.’’ Francis v. Franklin,
471 U.S. 307, 319 (1985) (citing Sandstrom v. Montana, 442 U.S. 510,
518–19 n.7 (1979)); see also id. at 322 (‘A reviewing court has no way of
knowing which of the two irreconcilable instructions the jurors applied
. . . .’).”
14                WILLIAMS V. SWARTHOUT

    Juries are presumed to follow the court’s instructions,
Richardson v. Marsh, 481 U.S. 200, 210 (1987), but that
presumption may be overcome when “there is an
‘overwhelming probability’ that the jury will be unable to [do
so], and a strong likelihood that the effect of the evidence
would be ‘devastating’ to the defendant.” Greer v. Miller,
483 U.S. 756, 766 n.8 (1987) (citing Richardson, 481 U.S. at
208; Bruton v. United States, 391 U.S. 123, 136 (1968)).

    Under Richardson, this court presumes that Williams’s
jury credited the judge’s misstatement that Williams had pled
guilty—at least until the error was revealed. This presumption
is corroborated by the jury’s letter to the court asking whether
it was true that the judge had stated that the defendant had
pled guilty before trial.

    There can be no dispute that during trial the jury’s view
of the evidence was seriously compromised by the judge’s
misstatement. But was the misstatement cured? Not by the
judge’s first instruction. The jury was polled, as a group, to
assess compliance and no juror demurred. Yet two days later
Juror 1 indicated that the judge’s misstatement had affected
how he had listened to, heard, and processed the evidence. It
had affected his ability to remain impartial.

    The judge’s second curative instruction fared better: no
juror voiced his or her inability to remain impartial; and this,
argues the State, is proof that it worked. But the jury’s silence
proves only that it was silent—not why. And record evidence
supports Williams’s contention that the judge’s extraneous
monologue, which preceded polling, silenced the jury.

   Rather than explain Juror 1’s statements, poll the jury,
and leave it at that, the judge rebuked Juror 1 for his
                 WILLIAMS V. SWARTHOUT                       15

“reservations about his ability” to ignore the judge’s
misstatement. Juror 1, declared the judge, was “not a fair
juror.” The implication was clear: any juror who questioned
her ability to disregard the judge’s misstatement was “not
fair.” The judge continued:

       So in listening to the evidence, it could not be
       that you were listening to the evidence to
       support the plea. That would have been
       wrong. That is a point of view that you could
       not have in listening to the evidence because
       you are supposed to be fair and impartial
       throughout the entire trial including the time
       which you are listening to the evidence.

(Emphases added.)

     Told that “it could not be” that the judge’s misstatement
had affected her judgment—told that “[t]hat would have been
wrong”—what juror would admit that her judgment had been
affected? Told that she “could not have” a point of view that
naturally flowed from the judge’s misstatement, what juror
would admit to having that point of view? What juror would
concede in open court that she was not “fair and impartial”?
It is all well and good to rely on the “naive assumption that
prejudicial effects can be overcome” by a curative instruction,
Krulewich v. United States, 336 U.S. 440, 453 (1949)
(Jackson, J., concurring) (citation omitted); but it is a
different matter entirely to fault, in open court, jurors unable
to engage in the requisite “mental gymnastic,” Nash v. United
States, 54 F.2d 1006, 1007 (2d Cir. 1932) (Hand, J.); cf.
Toolate v. Borg, 828 F.2d 571, 574 n.3 (9th Cir. 1987) (noting
that the Supreme Court has recognized, in Bruton v. United
States, 391 U.S. 123, 135–36 (1968), and Jackson v. Denno,
16               WILLIAMS V. SWARTHOUT

378 U.S. 368, 388–89 (1964), that confessions—and by
extension, those reported by the court as guilty pleas—have
a “powerfully incriminating effect” and are therefore
particularly difficult for a jury to disregard). The judge’s
digression silenced the jury, raising serious doubts as to the
efficacy of the second curative instruction.

    As the California Court of Appeal concluded, the trial
judge’s misstatement was constitutional error. Where
constitutional error is found, we assess its prejudicial impact
under Brecht v. Abrahamson, 507 U.S. 619 (1993). See
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011). We do
so, moreover, “without regard for the state court’s
harmlessness determination”—without, in other words,
analyzing under AEDPA whether the state court’s
harmlessness determination was contrary to, or an
unreasonable application of, clearly established federal law.
Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). Only
Brecht, and not the “clearly established Federal law”
standard, applies here.

    Under Brecht, habeas petitioners are entitled to relief if
the error “‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” Brecht, 507 U.S. at 637
(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). The Kotteakos Court explained:

        [I]f one cannot say, with fair assurance, after
        pondering all that happened without stripping
        the erroneous action from the whole, that the
        judgment was not substantially swayed by the
        error, it is impossible to conclude that
        substantial rights were not affected. The
        inquiry cannot be merely whether there was
                 WILLIAMS V. SWARTHOUT                       17

       enough to support the result, apart from the
       phase affected by the error. It is rather, even
       so, whether the error itself had substantial
       influence. If so, or if one is left in grave
       doubt, the conviction cannot stand.

Kotteakos, 328 U.S. at 764–65 (internal citations omitted).

     Viewed in the context of the trial as a whole, the judge’s
initial misstatement and his ineffective attempts to cure it
were devastating to Williams. The State’s case was hardly
overwhelming; it relied almost entirely on Christyn’s
testimony. The only other evidence presented by the State
was the recording of a phone call from Williams to Christyn
several weeks after the incident—a recording that, at most,
demonstrated that Williams and Christyn had had some sort
of falling out. No physical evidence and no other eyewitness
testimony tied Williams to the crime. It was therefore of the
utmost importance that jurors presumed him innocent when
they heard and evaluated Christyn’s testimony. Because we
conclude that it is highly unlikely that the attempted curative
instructions rendered the constitutional error harmless, the
error was prejudicial under Brecht.

     Williams was convicted on the basis of the victim’s
testimony, which the jury heard while under the impression
that Williams had pled guilty—in other words, while under
the impression that he was guilty. It is, we find, impossible to
say that the “judgment was not substantially swayed by the
[trial judge’s] error.” Williams’s conviction must be reversed.

                             ***
18               WILLIAMS V. SWARTHOUT

    “[T]rial by jury has been understood to require that ‘the
truth of every accusation . . . be confirmed by the unanimous
suffrage of twelve of [the defendant’s] equals and
neighbors.’” Apprendi v. New Jersey, 530 U.S. 466, 477
(2000) (emphasis and second brackets in original) (quoting
4 W. Blackstone, Commentaries on the Laws of England 343
(1769)). Where the judge assigns guilt, even inadvertently, he
strips the jury of its fundamental role and subverts the
requirement that the jury must confirm the truth of every
accusation. “The principle that there is a presumption of
innocence in favor of the accused is the undoubted law,
axiomatic and elementary, and its enforcement lies at the
foundation of the administration of our criminal law.” Coffin
v. United States, 156 US. 432, 453 (1895).” The
constitutional error is manifest. It was not rendered harmless
by the flawed curative instructions.

    We reverse the district court’s denial of Williams’s
petition for writ of habeas corpus, and remand with
instructions to grant a writ requiring the state to release him
from custody unless it initiates new trial proceedings within
a reasonable period of time to be determined by the district
court. REVERSED and REMANDED.



MURGUIA, Circuit Judge, dissenting:

   I disagree with the majority’s conclusion that the
California Court of Appeal found state and federal
constitutional error. I would hold that the California Court of
Appeal determined that Williams’s state and federal
constitutional rights were not violated. I would further hold
                 WILLIAMS V. SWARTHOUT                      19

that this was not an unreasonable application of clearly
established federal law.

                              I.

    Under California law, a defendant’s right to a fair and
impartial jury can be violated when there is an objective,
substantial likelihood of juror bias. See People v. Ramos,
101 P.3d 478, 497 (Cal. 2004). The court of appeal’s decision
reads as follows:

       According to Williams, the court’s
       misstatement was error insofar as it undercut
       his rights to a fair and impartial jury that was
       correctly instructed on the burden of proof. He
       contends that despite these steps, the court’s
       error could not be cured because, viewed
       objectively, it was so prejudicial that it was
       inherently and substantially likely to have
       influenced a juror. (See People v. Ramos
       (2004) 34 Cal.4th 494, 519.) We agree that
       error occurred, but conclude it was cured and
       was therefore harmless under the
       circumstances.

           The one juror who was biased due to the
       court’s error was removed. Even though the
       error obviously affected that juror, we do not
       believe, when the record is viewed as a whole,
       that the error was inherently and substantially
       prejudicial on an objective basis.

The court of appeal finally concluded that “[u]nder well-
established principles of harmless error concerning trial court
20                WILLIAMS V. SWARTHOUT

instructional misstatements, we hold that the error was
cured,” citing three jury instruction misstatement cases
where, despite the trial court making a misstatement while
instructing the jury, the court of appeal ultimately concluded
that the misstatement was harmless and did not rise to the
level of a constitutional violation. See People v. Robinson,
124 P.3d 363, 396 n.24 (Cal. 2005) (harmless error where
trial court mistakenly told the prospective jurors that “race is
not to be considered until reaching the penalty” but later
properly and repeatedly told the jury that race had no place in
its decision-making process) (emphasis in original); People
v. Box, 5 P.3d 130, 169 (Cal. 2000) (harmless error where
trial court misspoke while instructing jury but gave jury
correct written instructions).

     It is clear from the court of appeal’s decision that it did
not find constitutional error because, as in each of the cases
it cited, the trial court’s error was harmless and did not rise to
the level of a constitutional violation. We then presume that
the court of appeal also held that the trial court’s
misstatement was not a federal constitutional violation. See
Johnson v. Williams, 133 S. Ct. 1088, 1094–96 (2013)
(holding that even where a state court does not separately
discuss a federal claim there is a presumption that the state
court adjudicated the federal claim on the merits). We review
this adjudication of the merits of Williams’s claim—that the
trial court’s misstatement that Williams had pled guilty did
not violate Williams’s Sixth and Fourteenth Amendment
rights—under AEDPA. See 28 U.S.C. § 2254(d).

                               II.

    In my view, the California Court of Appeal’s conclusion
that Williams’s federal constitutional right to an impartial
                  WILLIAMS V. SWARTHOUT                       21

jury was not violated was not unreasonable. See 28 U.S.C.
§ 2254(d)(1) (“An application for a writ of habeas corpus . . .
shall not be granted . . . unless the adjudication of the claim
. . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law).
There is no per se rule that it is a constitutional violation
when a trial court makes a statement like the regrettable
statement made in this case. A trial court that realizes that it
has made a misstatement of this nature has two options: first,
declare a mistrial, or second, try to cure the error rather than
begin the trial anew. The trial court here decided to take the
latter approach and went to great lengths to cure its
misstatement. After the jury brought the trial court’s
misstatement to its attention, the trial court repeatedly and
emphatically acknowledged its error before the jury, twice
instructed the jury correctly on the presumption of innocence
and the state’s burden of proof, repeatedly questioned the
jurors about whether they remained confused about the
presumption of innocence and the state’s burden, and polled
the jurors on whether they harbored any doubts as to their
ability to fairly deliberate. I disagree with the majority that
the trial court’s second curative instruction operated as a
rebuke that silenced the jurors.

    In my view, because no other jurors came forward, a
fairminded jurist could conclude that the trial court’s
measures were sufficient to cure its misstatement. Therefore,
the California Court of Appeal’s decision that Williams’s
Sixth and Fourteenth Amendment rights were not violated
was not unreasonable, and we do not reach prejudice under
Brecht v. Abrahamson, 507 U.S. 619 (1993). Accordingly, I
respectfully dissent.
