348
O'Connor, J., concurring in judgment
tana, 442 U. S. 510, 523 (1979) (constitutional error occurs when jurors "could reasonably have concluded" that the instructions created a presumption of guilt on an element of the crime). In Boyde, we clarified that when the claim is that a single jury "instruction is ambiguous and therefore subject to an erroneous interpretation," the proper inquiry is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." 494 U. S., at 380. As the Court notes, we chose the more restrictive standard in that case, and, as a result, Boyde itself did not state a new rule. The Court, however, finds Boyde inapplicable because it was a capital case. Ante, at 342.
It is true that we clarified the standard for reviewing jury instructions in a capital case, but Boyde did not purport to limit application of that standard to capital cases, nor have we so limited it. In Estelle v. McGuire, 502 U. S. 62 (1991), for example, the Court reviewed an ambiguous state-law instruction in a noncapital case. Although I disagreed with the Court's conclusion regarding the effect of that ambiguous instruction, see id., at 76-80 (O'Connor, J., concurring in part and dissenting in part), I agreed with the standard it used in reaching its conclusion: " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Id., at 72 (quoting Boyde v. California, supra). It is clear that the "reasonable likelihood" standard of Boyde applies to noncapital cases.
Although the Court's opinion today might be read as implying that erroneous jury instructions may never give rise to constitutional error outside of capital cases, ante, at 342, such an implication would misconstrue our precedent. When the Court states that "instructions that contain errors of state law may not form the basis for federal habeas relief," ibid. (citing Estelle v. McGuire, supra), it must mean that a mere error of state law, one that does not rise to the level of
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