Cite as: 525 U. S. 141 (1998)
Stevens, J., dissenting
soning at length, it merely cited an earlier en banc decision of the Ninth Circuit that came to a similar conclusion. See McDowell v. Calderon, 130 F. 3d 833, 838 (1997), cert. denied, 523 U. S. 1103 (1998).4
Perhaps there may be cases in which a more detailed and written analysis of the harmless-error issue should precede an appellate court's decision to affirm a trial court's conclusion that an unconstitutional jury instruction in a capital sentencing proceeding was not harmless. But even if that be true, there are three good reasons for not requiring the Court of Appeals to take a second look at the issue in this case.
4 Although this Court's per curiam opinion quotes the relevant paragraph from the opinion below, see ante, at 145, the Court inadvertently omits the citation to McDowell that explained the Court of Appeals' reasoning. In McDowell, the en banc court stated:
"The question, then, is whether this fundamental error had any 'substantial and injurious effect or influence' on the jury's sentence of death, Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946)). To answer this question, we look for specific guidance to Boyde v. California, 494 U. S. 370 (1990). In Boyde, the Supreme Court confronted a claim that an arguably ambiguous jury instruction 'restrict[ed] impermissibly a jury's consideration of relevant [penalty phase] evidence. . . .' To evaluate such a claim, the Court fashioned a reviewing yardstick which we find appropriate here: 'The proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence.' Id. at 380. If the answer is 'yes,' the error necessarily satisfies the Brecht test for substantial and injurious error. . . . We conclude on these facts, in these circumstances, and in the light of controlling authority that the error did substantially injure and influence the jury's verdict." McDowell v. Calderon, 130 F. 3d, at 838 (footnote omitted).
Four judges dissented from McDowell's conclusion that it was reasonably likely that the jury erred in their application of an instruction used in that case, see id., at 841, but no judge took issue with the logic of the harmless-error analysis quoted above, see id., at 842-843 (Thompson, J., dissenting); see also id., at 843-845 (Kozinski, J., dissenting).
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