Cite as: 574 U. S. ____ (2014) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

RAUL LOPEZ, WARDEN v. MARVIN VERNIS SMITH 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 

No. 13–946 Decided October 6, 2014

 PER CURIAM. 

When a state prisoner seeks federal habeas relief on the

ground that a state court, in adjudicating a claim on the 

merits, misapplied federal law, a federal court may grant

relief 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.” 28 U. S. C. §2254(d)(1). We have 

emphasized, time and again, that the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.

1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular 

constitutional principle is “clearly established.” See, e.g., 

Marshall v. Rodgers, 569 U. S. __, __ (2013) (per curiam)

(slip op. at 6). Because the Ninth Circuit failed to comply

with this rule, we reverse its decision granting habeas

relief to respondent Marvin Smith. 

I 

Respondent was arrested for the murder of his wife,

Minnie Smith. On December 15, 2005, Mrs. Smith was 

found dead in the home she shared with respondent, and 

it was determined that she was killed by a massive blow to 

the head from a fireplace log roller. The home appeared to

have been ransacked, and valuable jewelry was missing.

The State charged respondent with first-degree murder

and offered substantial incriminating evidence at trial.

The prosecution presented evidence that respondent “was

unfaithful to his wife for many years, that his wife was 
 

 

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threatening to divorce him, and that he told one of his

former employees . . . that the ‘only way’ he or his wife 

would get out of their marriage was ‘to die,’ because he 

was ‘not going to give [Mrs. Smith] half of what [he] got so

some other man can live off of it.’” 731 F. 3d 859, 862–863 

(CA9 2013) (second alteration in original). Respondent’s

DNA was also found on the murder weapon, pieces of duct 

tape found near the body, and a burned matchstick that 

was found in the bedroom and that may have been used to 

inflict burns on the body. See id., at 863; see also People v. 

Smith, 2010 WL 4975500, *1–*2 (Cal. App., Dec. 8, 2010).

The missing jewelry was discovered in the trunk of respondent’s car, wrapped in duct tape from the same roll 

that had provided the pieces found near the body. See 731 

F. 3d, at 863. Respondent’s DNA was found on the duct 

tape in his trunk. See Smith, 2010 WL 4975500, at *2. In 

addition, a criminologist testified that the ransacking of 

the Smiths’ home appeared to have been staged. See 731 

F. 3d, at 863. 

Respondent defended in part on the basis that he could 

not have delivered the fatal blow due to rotator cuff surgery several weeks before the murder. See ibid. (He

mounted this defense despite the fact that police had

observed him wielding a 6-foot-long 2 by 4 to pry something out of a concrete slab at a construction site the week 

after the murder. See Smith, 2010 WL 4975500, at *1.) 

The defense also suggested that one of respondent’s former 

employees had committed the crime to obtain money to

pay a debt he owed respondent. See 731 F. 3d, at 863. 

At the close of evidence, the prosecution requested an 

aiding-and-abetting instruction, and the trial court agreed 

to give such an instruction. During closing argument, the 

prosecutor contended that respondent was physically able

to wield the log roller that had killed Mrs. Smith, but he

also informed the jury that, even if respondent had not 

delivered the fatal blow, he could still be convicted on an 
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aiding-and-abetting theory. See id., at 864. The jury

convicted respondent of first-degree murder without specifying which theory of guilt it adopted.

After a series of state-court proceedings not relevant

here, the California Court of Appeal affirmed respondent’s 

conviction. The state court rejected respondent’s assertion

that he had inadequate notice of the possibility of conviction on an aiding-and-abetting theory. The court explained that “‘an accusatory pleading charging a defendant with murder need not specify the theory of murder on

which the prosecution intends to rely,’” and noted that the

“information charged defendant with murder in compliance with the governing statutes.” Smith, 2010 WL 

4975500, at *6–*7. Furthermore, the court held that “even 

if this case required greater specificity concerning the

basis of defendant’s liability, the evidence presented at his 

preliminary examination provided it.” Id., at *7. The 

upshot was that “the information and preliminary examination testimony adequately notified defendant he could

be prosecuted for murder as an aider and abettor.” Id., at 

*8. The California Supreme Court denied respondent’s 

petition for review.

Respondent filed a petition for habeas relief with the

United States District Court for the Central District of 

California. The Magistrate Judge recommended granting

relief, and the District Court summarily adopted the

Magistrate Judge’s recommendation. 

The Ninth Circuit affirmed. The court acknowledged

that the “information charging [respondent] with firstdegree murder was initially sufficient to put him on notice

that he could be convicted either as a principal or as an

aider-and-abettor,” because under California law “aiding 

and abetting a crime is the same substantive offense as

perpetrating the crime.” 731 F. 3d, at 868. But the Ninth 

Circuit nevertheless concluded that respondent’s Sixth

Amendment and due process right to notice had been 
 

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violated because it believed the prosecution (until it requested the aiding-and-abetting jury instruction) had tried 

the case only on the theory that respondent himself had 

delivered the fatal blow. See id., at 869. 

The Ninth Circuit did not purport to identify any case in

which we have found notice constitutionally inadequate 

because, although the defendant was initially adequately 

apprised of the offense against him, the prosecutor focused 

at trial on one potential theory of liability at the expense

of another. Rather, it found the instant case to be “indistinguishable from” the Ninth Circuit’s own decision in 

Sheppard v. Rees, 909 F. 2d 1234 (1989), which the court 

thought “faithfully applied the principles enunciated by

the Supreme Court.” 731 F. 3d, at 868. The court also 

rejected, as an “unreasonable determination of the facts,” 

28 U. S. C. §2254(d)(2), the California Court of Appeal’s

conclusion that preliminary examination testimony and 

the jury instructions conference put respondent on notice 

of the possibility of conviction on an aiding-and-abetting 

theory. See id., at 871–872. 

II
 

A 

The Ninth Circuit held, and respondent does not dispute, that respondent initially received adequate notice of 

the possibility of conviction on an aiding-and-abetting 

theory. The question is therefore whether habeas relief is

warranted because the State principally relied at trial on

the theory that respondent himself delivered the fatal

blow. 

Assuming, arguendo, that a defendant is entitled to 

notice of the possibility of conviction on an aiding-andabetting theory, the Ninth Circuit’s grant of habeas relief 

may be affirmed only if this Court’s cases clearly establish 

that a defendant, once adequately apprised of such a 

possibility, can nevertheless be deprived of adequate 
Cite as: 574 U. S. ____ (2014) 5 

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notice by a prosecutorial decision to focus on another 

theory of liability at trial. The Ninth Circuit pointed to no

case of ours holding as much. Instead, the Court of Appeals cited three older cases that stand for nothing more 

than the general proposition that a defendant must have

adequate notice of the charges against him. See 731 F. 3d, 

at 866–867 (citing Russell v. United States, 369 U. S. 749, 

763–764 (1962); In re Oliver, 333 U. S. 257, 273–274 

(1948); Cole v. Arkansas, 333 U. S. 196, 201 (1948)). 

This proposition is far too abstract to establish clearly

the specific rule respondent needs. We have before cautioned the lower courts—and the Ninth Circuit in particular—against “framing our precedents at such a high level 

of generality.” Nevada v. Jackson, 569 U. S. ___, ___ 

(2013) (per curiam) (slip op., at 7). None of our decisions 

that the Ninth Circuit cited addresses, even remotely, the

specific question presented by this case. See Russell, 

supra, at 752 (indictment for “refus[ing] to answer any

question pertinent to [a] question under [congressional] 

inquiry,” 2 U. S. C. §192, failed to “identify the subject 

under congressional subcommittee inquiry”); In re Oliver, 

supra, at 259 (instantaneous indictment, conviction, and 

sentence by judge acting as grand jury with no prior notice 

of charge to defendant); Cole, supra, at 197 (affirmance of

criminal convictions “under a . . . statute for violation of 

which [defendants] had not been charged”).1 

Because our case law does not clearly establish the legal 

—————— 

1Respondent claims that our decision in Lankford v. Idaho, 500 U. S. 

110 (1991), although not cited by the Ninth Circuit, clearly establishes

the legal principle he needs. But Lankford is of no help to respondent. 

That case addressed whether a defendant had adequate notice of the 

possibility of imposition of the death penalty—a far different question

from whether respondent had adequate notice of the particular theory 

of liability. See id., at 111. In Lankford, moreover, the trial court itself 

made specific statements that encouraged the defendant to believe that

the death penalty was off the table. See id., at 116–117. 
 

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proposition needed to grant respondent habeas relief, the 

Ninth Circuit was forced to rely heavily on its own decision in Sheppard, supra. Of course, AEDPA permits

habeas relief only if a state court’s decision is “contrary to, 

or involved an unreasonable application of, clearly established Federal law” as determined by this Court, not by

the courts of appeals. 28 U. S. C. §2254(d)(1). The Ninth 

Circuit attempted to evade this barrier by holding that 

Sheppard “faithfully applied the principles enunciated by

the Supreme Court in Cole, Oliver, and Russell.” 731 

F. 3d, at 868. But Circuit precedent cannot “refine or 

sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not 

announced.” Marshall, 569 U. S., at __ (slip op., at 6). 

Sheppard is irrelevant to the question presented by this

case: whether our case law clearly establishes that a prosecutor’s focus on one theory of liability at trial can render 

earlier notice of another theory of liability inadequate. 

B 

The Ninth Circuit also disagreed with what it termed 

the state court’s “determination of the facts”—principally,

the state court’s holding that preliminary examination 

testimony and the prosecutors’ request for an aiding-andabetting jury instruction shortly before closing arguments 

adequately put respondent on notice of the prosecution’s

aiding-and-abetting theory. 731 F. 3d, at 871 (internal 

quotation marks omitted). The Ninth Circuit therefore 

granted relief under §2254(d)(2), which permits habeas

relief where the state-court “decision . . . was based on an 

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” That 

holding cannot be sustained.

In purporting to reject the state court’s “determination

of the facts,” the Ninth Circuit focused on preliminary 

examination testimony by an investigator about conversa-
 

 

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tions between respondent and his cellmate. According to

the investigator, the cellmate stated that respondent told 

him that respondent “had to get rid of his wife because she

was standing in the way of his future plans; that she was

threatening to divorce him and he wasn’t going to give up

half of his property”; that respondent made his house look 

like the site of a home invasion robbery; and that, when he

left for work the morning of the murder, he left the window open and did not set the alarm. Smith, 2010 WL 

4975500, at *7. The investigator also testified that the 

cellmate did not “‘know any of the details of the homicide

itself and how it was carried out,’” and that respondent 

“‘never told [the cellmate] specifically who’” committed the 

homicide. Ibid. The California Court of Appeal held that 

these statements, taken together, suggested that respondent was involved in planning and facilitating the crime but

that the fatal blow might have been delivered by an accomplice. Ibid. Thus, the California court believed that 

even assuming that the information by itself was not 

sufficient, this testimony naturally lent itself to conviction 

on an aiding-and-abetting theory and so gave respondent 

even greater notice of such a possibility. Ibid. 

The Ninth Circuit also focused on the jury instructions

conference, which occurred after the defense rested but 

before the parties’ closing arguments. During that conference, prosecutors requested an aiding-and-abetting instruction, which further provided notice to respondent.

The California Court of Appeal concluded that this case is 

distinguishable from Sheppard v. Rees, 909 F. 2d 1234, 

because, unlike that case, the conference here did not 

occur immediately before closing arguments. The Ninth 

Circuit disagreed, holding that because “defense counsel 

had only the lunch recess to formulate a response” to the

aiding-and-abetting instruction, this case “is indistinguishable from Sheppard,” where the prosecution also

“requested the new instruction the same day as closing.” 
 

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731 F. 3d, at 868, 870. 

Although the Ninth Circuit claimed its disagreement 

with the state court was factual in nature, in reality its

grant of relief was based on a legal conclusion about the 

adequacy of the notice provided. The Ninth Circuit believed that the events detailed above, even when taken 

together with the information filed against respondent,

failed to measure up to the standard of notice applicable in 

cases like this. That ranked as a legal determination 

governed by §2254(d)(1), not one of fact governed by

§2254(d)(2). But, as we have explained, the Ninth Circuit 

cited only its own precedent for establishing the appropriate standard. Absent a decision of ours clearly establishing the relevant standard, the Ninth Circuit had nothing 

against which it could assess, and deem lacking, the notice 

afforded respondent by the information and proceedings.

It therefore had no basis to reject the state court’s assessment that respondent was adequately apprised of the possibility of conviction on an aiding-and-abetting theory.2 

The petition for a writ of certiorari is granted. The 

judgment of the United States Court of Appeals for the 

Ninth Circuit is reversed, and the case is remanded for 

further proceedings consistent with this opinion. 

It is so ordered. 

—————— 

2Because we reverse the Ninth Circuit’s decision on the foregoing 

grounds, we need not opine on the correctness of that court’s discussion

of Griffin v. United States, 502 U. S. 46 (1991), or Brecht v. Abrahamson, 507 U. S. 619 (1993).