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ALITO , J., dis s e nting 

## SUPREME CO URT O FTHE UNI TED STATES ROB ERT K. WONG, WARDEN v. ANT H ONY BER NAR D SMITH, J R

. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATE S COU R T OF APPEALS FOR THE NINTH CIR C UIT No. 09–1 03 1. Dec i ded November1, 2010 The petition for a writ of certiorari is denied. J USTICE ALITO , with whom T HE C HIEF J USTICE an d J USTICE S CALIA join, dissenting from denial of certiorari. The Court of Appeals granted habeas relief in this case after conclu ding that a state trial judge uncon stitutionally coerced the jury by com m enting and offering an opinion on the evidence. Because that decisi on cannot be reconciled with the Antiterrorism and Effe ctive Death Penalty Act of 1996 (AEDPA), see 28 U. S. C. §2254(d)(1), and gives short shrift to a venerable common -law practice, I would gran t the petition for writ of certiorari. I After they l e arned that Eugene and Deanna S. had won some money at a casi no, respondent Anthony Smith an d codefendant James Hinex drove to the couple’s Sacra

mento hom e , burglarized it, and robbed both victims a t gunpoint. During the robbery, one of the defendants put a gun to the head of Mr s. S. and forced her to perform oral copulation. Both Sm ith and Hi nex were arrested and charged un der California law with one countof residential burglary an d two counts of residen t ial robbery. Cal. Penal Code Ann. §§459 (Wes t 2010), 21 1 (West 2008). Smith was also c harged with forcibl e oral copulation. §288a(c) (West 2008). At trial, the jury deliberated for a little over two days before convicting both defendants on the bu r glary and robbery counts. The j u ry had a more diffic u lt2 WONG v. SM ITH

ALITO , J., dis s e nting time reaching agreement on the oral-copulation count. Tests showed that semen reco vered from th e crime scene matched Smith’s DNA, but Mrs. S. had originally identi

fied Hinex as her attacker. On the fourth day of deliberations, one juror sent the judge a note stating that he was unable to vot eto convict Smith on th e oral-copulation count because he thought the DNA evide n ce was unreliable. T h e trial judge then gave the jury a modified version of an Allencharge. See Allen
v. Uni t ed Sta t es , 164 U. S. 492 (1896). When further deliberation s proved fruitless, the judge deci ded to exer

cise the judicial authority, as recognized by the Sta t e Constitution, to “comment on th e evidenc e .” See C a l. Const., Art. VI, §10. At the outset, the judg e reminded the jurors that the y were the “ ‘exclusive judges of the facts.’ ” Smi t h v. Cur r y , 580 F. 3d 1071, 1077 (CA9 2009). He explained that his comments were not intended “ ‘to impose [his ] will’ ” on the jury, but only to review “certain evidence” that they “ ‘ma y not have considered.’ ” Ibid. The j u dge thought it “ ‘impo r tant’ ” for t h e jury to consider the statements Smith a n d Hine x “ ‘ma d e to law enforcement following their arrests,’ ” particularlythe “ ‘co n sistencies and inconsistencies ’ ” between those statem ents. Ibid. The judge pointed o u t that Smith told police that both he and Hinex entered the house. Smith stated th at he found Mrs. S. in a back bed

room, that Smith was armed at th e time, and that Mrs. S. gave Smi t h a $100 bill. Id. , at 1077–1078. The ju dge noted that Hinex also “ ‘said Smith went to the back of the house .

. . a n d closed the door.’ ” Id. , at 1077

. But Hinex denied goin g inside the house hi mself. Thejudge played the tapes of both defendants’ sta t ements for t h e jury. He told them t oconsider and discuss the statem ents during deliberation s
. Final ly, the ju dge reiterated that his “ ‘com

ments [were] advisory only’ ” andt hat the ju rors remained

“ ‘the exclusive judges’ ” of the facts and the “ ‘credibility of3 Cite as: 56 2 U

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ALITO , J., dis s e nting witnesses. ’ ” Id. , at 1078. The jury continued their delib

erations; a short time later, they r e turned a gu ilty verdic t against Smith on the oral-copulation count. Smith argued on appeal that the judge’s comments coerced the jury’s ve rdict. A California intermediate appellate court rejecte d that claim. The C a lifornia Su

preme Court denied review. Smith then filed a federal petition for writ of habe as corpus, 2 8U. S. C. § 2254, which the DistrictCourt gr a n ted. A sp lit Ninth C i rcuit panel affirmed. II Smith’s cla i m on federal habeas is that the California appellate court unreasonably a pplied this Court’s clearly established law forbidding coer cive jury instructions. §2254(d)(1); see Brief in Opposition 12. “[C]l e arly estab

lished” law under §2254(d)(1) cons ists of “the holdings, as opposed to the dicta, of this Court’s” cases. William sv. Taylor , 529 U. S. 362, 412 (2000). An “unreasonable a p plication” of that law involves not just an e rroneous or incorrect decision, but an objecti vely unrea sonable on e. Renicov. Lett , 559 U. S. ___ (2010). The clearly established law relevant to th is case is sparse. Just one of this Court’s decisions, Lowenfieldv. Phelps , 484U. S. 231 (1988), has addressed the constitu

tional rule against coercive jury i n structions. And Lowen

fieldheld only that, o nthe totality of the ci rcumstance s present the r e, no unconstitutional coercion re sulted. Id. , at 241. Th e Court has also decided several cases on th e specific practice of judicial comment on the evidence. E.g., Quer ciav. UnitedS t ates , 289 U. S. 466 (1933). But all of those casesarose und er this Co urt’s supervisory power over federal courts; they set no clearly established consti

tutional limits under AE DPA. See Earlyv. Pa cker , 537 U. S. 3, 10 (2002) (pe r curi am)

. As a result, the clear l y establishedlaw in thi s area provides very little specif ic4 WONG v. SM ITH

ALITO , J., dis s e nting guidance. About all that can be said isthat coercive in

structions are unconstitutional, coerciveness must be judged on the totality of the circumstances, and the fact s of Lowenfield(polling a deadlocked jury and reading a slightly modified Allencharge) we re not unconstitutionally coercive. See 484 U. S., at 237–241. A general standard su ch as this gives state courts wide latitude for reasonable decision making un der AEDPA. Yarboroughv. Alvarad o , 541 U. S. 652, 664 (2004) (“The more general the rule, the more leeway cou rts have in reaching outcomes in case-by-ca se determinations”). That latitude is wider still in this case, as no constitutional decision of this Court has ever explained ho w the general rule against “coercion” applies to t h e traditional practi ce of judicial comment on the evidence

. Cf. Car e yv. Musladin , 549 U. S. 70, 76 (2006). For centuri e s, trial ju dges have enjoyed authority to comment on the evidence. At common law, the judge was empowered to “weig[h] the evidence” and share an “opin

ion” with the jury, even “in matter of fact.” 2 M. Hale, History of the Common Law of En gland 147 (5th ed. 179 4) (hereinafter Hale).* The practi ce is well established in this Court’s cases as well. The Court has rec o gnized tha t a trial judge has “discretion” to “comment upon the evi

dence,” to c a ll the jury ’s “attentionto par t s of it which h e thinks imp o rtant,” an d to “exp ress his opinion upon the facts.” Vi ck sburg & Me ridian R. Co
. v. Putna m , 118 U. S. 545, 553 (1886); Querc ia , supra, a t469.

——————

* SeeJ. Thayer, Prelim inary Treatise on Evidence at Co mmon Law 188, n

. 2 (189 8) (tr i al byju r y“ina for mwh ic h wou l d wi th h o ld fr om the ju r yth e assi st an c eof th e c o ur t in dealingwith the fac t s” is not “tr ia l b y ju r yinanyh i stor icsen s e of th e wor d”); 9 J. Wig m or e, Eviden c e§2551 , p. 664(J. Ch a dbou r nr e v. 19 81) (h er einafter Wigmore) (comment on th e evidence “existed at commo n law sinc e the beginning of jury trial, and
mu st be r e g a r d ed h i stor ic all yas anessen t ial an d in sep a r able par tof jury trial”).5 Cite as: 56 2 U

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ALITO , J., dis s e nting To be sure, the practice has for many years been on the
wane. Comment on the evidence has always been mo re popular in Britain than it ever was in this country. Se e 9 Wigmore §2551, at 6 66. That said, feder a l courts and several States continue to re cognize judicial authority to comment o nthe evide n ce, and California expressly pro

tects the p r actice in i t s Sta t e Co nstitution. Cal. Const., Art. VI, §10. This long tr adition, combined wit hthe compl e te absence of constitutional precedent on how to apply Lowenfield ’s anticoercion principle in this context, shows that federal courts should tread lightly when f a ced withaclaim that judicial comment on the evidence runs afoul of clearly established federal law. Ou tside of extreme cases, most decisions a p proving traditional u s es of this common-la w practice sh ould fall within the bounds of rea s onable dec i

sionmaking under AEDPA. III Here, the C a lifornia appellate court didnot u n reasona bly apply t h is Court’s clearly established la w. The tri al judge, before commenting on the evidence, made clear tha t the jurors remained the exclusive judges of the facts and that the judge’s comments were a dvisory only. 580 F. 3 d , at 1077. The judge th en directed the jurors to particula r evidence—the defendants’ in itial statements to police— and highlighted for th em certain “ ‘consistencies and in

consistencies’ ” between those statements. Ibid. This practice of drawing th e jury’s “a t t ention to parts” of th e evidence that the judge think s “ ‘important’ ” lies at the recognized core of the commo n-law power to comment on the evidence. See Vick sburg , supra, at 553; Hale 147 (The judge “is able, . . . in matters of fact, to give [the jury] great light and assistance, by . . . observing where the question a n d knot of the business lies; andby showing them his opinion even in matter of fact” (some capitaliza

-6 WONG v. SM ITH

ALITO , J., dis s e nting tion omitted)). Neither the trial j u dge’s decis i on to employ the practice here nor th e state appellate court’s approval of the instruction ran afoul of clearly established federal law. The Ninth Circuit’s c o ntrary dec i sion rested in larg e measure onits concer n that the comments “pointed the jury to evi d ence leading to a particular ver d ict,” while omitting to mention other evidence favorable to Smith. 580 F. 3d, a t1081, 108 3. But the common-la w pri vilege to comment on the evidence has nev e r required a compendi

ous summary. Rather, the judge has traditionally enjoyed the power to focus on the par t ic ular evidence thejudge thinks impo rtant, an d to share with the jury a nopinion on that evidence. Vicksb urg , su pra, at 553; Quercia , 289 U. S., at 46 9. It was n o t unreasonable under this Court’s clearly established law for the California appellate court t o approve tha tprac tice here. The Ninth Circuit’s opinion a l so s u ggests tha t , when a jury is “de a dlock e d,” the judge may pro vide only “appro

priate encouragement .

. . to delib e rate,” and must refrain from providing the “judge’s sele ctive view of the evidence.” 580 F. 3d, at 1080. None of th is Court’s constitutional cases establish such a rule. And this Court’s supervisory

power cases (which, if anything, set a more demanding standard than the constitutional minimum) have specifi

cally upheld judicial c o mments that provide a particul a r “view of th e evidence” to an ap p a rently dea d locked ju r y
. SeeSimmonsv. United States , 1 42 U. S. 148, 155 (189 1) (no error where judge denied dea d lock ed jury’s request to be discharg e d and told them “thathe regarded the testi

mony as c o nvincing”). Nothin gin this C o urt’s clear l y establishedlaw prohibits the trial judge from offering an opinion to a jury tha tis struggling to reach a v e rdict. The Ninth Circuit was also troubled that the trial judge’s comments appeared to be designed to address the concerns of the holdoutjuror. 580 F. 3d, at 1082. And the7 Cite as: 56 2 U

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ALITO , J., dis s e nting panel majority disapp roved of the t r ial judge’s “mandator y language” d i recting the jury to “ ‘consider and discuss’ ” th e evidence highlighted by the court. Id. , at 1082–108 3. Whatever potential for coercion these comm ents caused, the California appellate court’s d e cision upholding them “was clearly not unreasonable” un der the general Lowen

field standard. See Renico , 559 U. S., at ___ (slip op., at 12). I wou l d grant certiorari in this case and correct th e Ninth Circu it’s error.