OCTOBER TERM, 1991
Syllabus
STRINGER
v. BLACK, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 90-6616. Argued December 9, 1991-Decided March 9,1992
After finding petitioner Stringer guilty of capital murder, a
Mississippi jury, in the sentencing phase of the case, found that
there were three statutory aggravating factors. These included the
factor the murder was "especially heinous, atrocious or cruel,"
which had not been otherwise defined in the trial court's
instructions. Stringer was sentenced to death, the sentence was
affirmed by the State Supreme Court on direct review, and
postconviction relief was denied in the state courts. The Federal
District Court then denied Stringer habeas corpus relief, rejecting
his contention that the "heinous, atrocious or cruel" aggravating
factor was so vague as to render the sentence arbitrary, in
violation of the Eighth Amendment's proscription of cruel and
unusual punishment. The Court of Appeals ultimately affirmed,
holding that Stringer was not entitled to rely on
Clemons v.
Mississippi, 494 U. S. 738, or
Maynard v.
Cartwright, 486 U. S. 356, in his
habeas corpus proceedings because those decisions, which were
issued after his sentence became final, announced a "new rule" as
defined in
Teague v.
Lane, 489 U. S. 288.
Held: In a federal habeas corpus proceeding, a petitioner
whose death sentence became final before
Maynard and
Clemons were decided is not foreclosed by
Teague from
relying on those cases. Pp. 227-237.
(a) When a petitioner seeks federal habeas relief based on a
principle announced after a final judgment,
Teague requires
a federal court to determine, first, whether the decision in
question announced a new rule, i.
e., was not dictated by
precedent existing when the judgment became final. If the answer is
yes and neither of two exceptions apply, the decision is not
available to the petitioner. Second, if the decision did not
announce a new rule, it is necessary to inquire whether granting
the relief sought would create a new rule because the prior
decision is applied in a novel setting, thereby extending the
precedent. See
Butler
(b) For purposes of
Teague, Maynard did not announce a
new rule.
Its invalidation of Oklahoma's "especially heinous, atrocious,
or cruel" aggravating circumstance was controlled by
Godfrey
v.
Georgia, 446 U. S. 420, in which the Court held that
Georgia's aggravating circumstance that the killing was
"outrageously or wantonly vile, horrible and
223
inhuman" was vague and imprecise, inviting arbitrary and
capricious application of the death penalty in violation of the
Eighth Amendment. Pp.228-229.
(c) This Court rejects the State's contention that, at the time
Stringer's conviction became final and before
Clemons, it
would have been a new rule to apply the
Godfrey and
Maynard holdings to the Mississippi sentencing system
because of differences between the use of aggravating factors in
that system and their use in the Georgia system in
Godfrey.
The principal-and critical-difference between the two schemes is
that Mississippi, unlike Georgia, is a "weighing" State, in which a
jury that has found a defendant guilty of capital murder and found
at least one statutory aggravating factor must weigh such factors
against the mitigating evidence.
Zant v.
Stephens,
462 U. S. 862,
890, expressly left open the possibility that in a weighing State
infection of the process with an invalid aggravating factor might
require invalidation of the death sentence. Although
Clemons
later held that the appellate court in such a case could reweigh
the aggravating and mitigating circumstances or undertake
harmless-error analysis, this Court has not suggested that the
Eighth Amendment permits a weighing-state appellate court to affirm
a death sentence without a thorough analysis of the role an invalid
aggravating factor played in the sentencing process, but has
required such courts to implement the well-established requirement
of individualized sentencing determinations in death penalty cases,
see,
e. g., Zant, supra, at 879. In a nonweighing State, so
long as the sentencing body finds at least one valid aggravating
factor, the fact that it also finds an invalid factor does not
infect the formal process of deciding whether death is appropriate.
But when the sentencing body is told to weigh an invalid factor in
its decision, the weighing process itself has been skewed. Thus,
the fact that Mississippi is a weighing State only gives emphasis
to the requirement that aggravating factors be defined with some
degree of precision and underscores the applicability of
Godfrey and
Maynard to the Mississippi system. Pp.
229-232.
(d) Moreover, precedent existing at the time Stringer's sentence
became final defeats the State's contention that before
Clemons it was reasonable to believe that there was no
constitutional requirement to define aggravating factors with
precision in the Mississippi system.
Lowenfield v.
Phelps, 484 U.
S. 231, distinguished. It is important that the Mississippi
Supreme Court, the final authority on the meaning of Mississippi
law, has at all times viewed the State's capital sentencing scheme
as subject to
Godfrey's dictates. See,
e. g.,
Gilliard v.
State, 428 So. 2d 576. The correctness of
that view as a matter of federal law is so evident that the issue
was not even mentioned in
Clemons, in which the Court,
unchallenged by the State, took for granted the propo-
224
sition that if a State uses aggravating factors in deciding who
shall be eligible for, or receive, the death penalty, it cannot use
factors which as a practical matter fail to guide the sentencer's
discretion. See 494 U. S., at 756, n. 1 (BLACKMUN, J., concurring
in part and dissenting in part). The fact that two
pre-Clemons Fifth Circuit cases ruled
Godfrey
inapplicable to Mississippi is not dispositive, since those cases
ignored the State Supreme Court's own characterization of its law
and accorded no significance to the centrality of aggravating
factors in the weighing phase of a Mississippi capital sentencing
proceeding, and were therefore seriously mistaken under precedents
existing even before
Maynard and
Clemons. Pp.
232-237.
909 F.2d
111, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, and O'CONNOR, JJ.,
joined. SouTER, J., filed a dissenting opinion, in which SCALIA and
THOMAS, JJ., joined,
post, p. 238.
Kenneth J. Rose, by appointment of the
Court, 502 U. s. 1011, argued the cause for petitioner. With him on
the brief were
James W Craig and
Louis D.
Bilionis.
Marvin L. White, Jr., Assistant Attorney General of
Mississippi, argued the cause for respondents. With him on the
brief was
Mike Moore, Attorney General.*
JUSTICE KENNEDY delivered the opinion of the Court. The death
sentence of the petitioner in this case was decreed by a judgment
that became final before we decided
*Briefs of
amici curiae urging affirmance were filed for
the State of Texas et al. by
Dan Morales, Attorney General
of Texas,
Will Pryor, First Assistant Attorney General,
Mary F.
Keller, Deputy Attorney General, and
Michael P. Hodge, Dana E. Parker, and
Margaret Portman
Griffey, Assistant Attorneys General, and by the Attorneys
General for their respective States as follows:
James H.
Evans of Alabama,
Grant Woods of Arizona,
Daniel
Lungren of California,
Linley E. Pearson of Indiana,
Frederic J. Cowan of Kentucky,
William B.
Webster of Missouri,
Marc Racicot of Montana,
Frankie
Sue Del Papa of Nevada,
Lacy H. Thornburg of North
Carolina,
Susan B. Loving of Oklahoma,
Ernest D. Preate,
Jr., of Pennsylvania,
Mary Sue Terry of Virginia, and
Joseph B. Meyer of Wyoming; and for the Criminal Justice
Legal Foundation by
Kent S.
Scheidegger.
225
either
Maynard v.
Cartwright, 486 U. S. 356 (1988), or
Clemons v.
Mississippi, 494 U. S. 738 (1990). The
petitioner argues that the State of Mississippi committed the same
error in his case as it did in
Clemons, and that under both
Maynard and
Clemons his sentence is unconstitutional.
The question presented is whether in a federal habeas corpus
proceeding a petitioner is foreclosed from relying on
Maynard and
Clemons because either or both announced
a new rule as defined in
Teague v.
Lane, 489 U. S. 288 (1989).
I
In June 1982, Ray McWilliams and his wife, Nell, were shot to
death in their Jackson, Mississippi, home as part of an armed
robbery. The petitioner James R. Stringer did not fire the fatal
shots, but he did plan the robbery and take part in it. The killing
was part of his plan from the outset. The crimes, and their
gruesome aspects, are described in the opinion of the Mississippi
Supreme Court on direct review of the conviction and sentence.
Stringer v.
State, 454 So. 2d 468, 471-473
(1984).
Under Mississippi law the death sentence may be imposed for
murders designated by statute as "capital murder." Miss. Code Ann.
§97-3-19(2) (Supp. 1991). A killing in the course of a burglary or
robbery is included within that category. Following a capital
murder conviction, the jury in the Mississippi system proceeds to
the sentencing phase of the case. For a defendant who has been
convicted of capital murder to receive the death sentence, the jury
must find at least one of eight statutory aggravating factors, and
then it must determine that the aggravating factor or factors are
not outweighed by the mitigating circumstances, if any. §
99-19-10l.
The jury found petitioner guilty of capital murder in the course
of a robbery. In the sentencing phase the jury found that there
were three statutory aggravating factors. The
226
aggravating factors as defined in the jury instructions, and for
the most part following the statutory wording, were:
"1. The Defendant contemplated that life would be taken and/or
the capital murder was intentionally committed and that the
Defendant was engaged in an attempt to commit a robbery; and was
committed for pecuniary gain.
"2. The capital murder was committed for the purpose of avoiding
or preventing the detection and lawful arrest of James R. Stringer,
the Defendant.
"3. The capital murder was especially heinous, atrocious or
cruel." Brief for Respondents 4.
The trial court in its instructions did not further define the
meaning of the third factor.
On direct review the Mississippi Supreme Court affirmed.
Stringer v.
State, supra. With respect to the
sentence, the court found it was not "imposed under the influence
of passion, prejudice or any other arbitrary factor,"
id.,
at 478; "the evidence fully support[ed] the jury's finding of
statutorily required aggravating circumstances,"
id., at
479; and the death sentence was not disproportionate to sentences
imposed in other cases,
ibid. Petitioner's conviction became
final when we denied certiorari on February 19, 1985.
Stringer v.
Mississippi, 469 U. S. 1230.
Postconviction relief was denied in the state courts.
Stringer v.
State, 485 So. 2d 274 (1986).
This case comes to us from proceedings begun when petitioner
filed his first federal habeas petition in the United States
District Court for the Southern District of Mississippi. The
relevant claim is petitioner's contention that the third
aggravating factor found by the jury and considered in the
sentencing proceeding, the "heinous, atrocious or cruel"
aggravating factor, was so vague as to render the sentence
arbitrary, in violation of the Eighth Amendment's proscription of
cruel and unusual punishment. The District Court found the claim
subject to a procedural bar and, in the alter-
227
native, ruled it had no merit.
Stringer v.
Scroggy,
675
Without consideration of the procedural bar question, the Court
of Appeals affirmed on the merits, finding no constitutional
infirmity in the jury's consideration of the third aggravating
factor because two other aggravating factors were unchallenged.
Stringer v.
Jackson, 862 F.2d
1108 (CA5 1988). When the Court of Appeals affirmed, we had not
decided
Clemons v.
Mississippi, and we later vacated
its opinion for further consideration. 494 U. S. 1074 (1990). On
remand the Court of Appeals held that petitioner was not entitled
to rely on
Clemons or the related case of
Maynard v.
Cartwright in his habeas corpus proceeding because those
decisions announced a new rule after his sentence was final.
909 F.2d
111 (1990). The court relied upon its earlier analysis in
Smith v.
Black, 904 F.2d
950 (1990), cert. pending, No. 90-1164, a case that had also
presented the question whether
Clemons and
Maynard
announced a new rule. We granted certiorari, 500 U. S. 915 (1991),
and now reverse.
II
Subject to two exceptions, a case decided after a petitioner's
conviction and sentence became final may not be the predicate for
federal habeas corpus relief unless the decision was dictated by
precedent existing when the judgment in question became final.
Butler v.
McKellar, 494 U. S. 407 (1990);
Penry v.
Lynaugh, 492 U. S. 302 (1989);
Teague v.
Lane, 489 U. S. 288 (1989). As
we explained in
Butler, "[t]he 'new rule' principle ...
validates reasonable, good-faith interpretations of existing
precedents made by state courts even though they are shown to be
contrary to later decisions." 494 U. S., at 414. Neither one of the
exceptions is at issue here, so our inquiry is confined to the
question whether
Clemons, Maynard, or both announced a new
rule.
When a petitioner seeks federal habeas relief based upon a
principle announced after a final judgment,
Teague and
our
228
subsequent decisions interpreting it require a federal court to
answer an initial question, and in some cases a second. First, it
must be determined whether the decision relied upon announced a new
rule. If the answer is yes and neither exception applies, the
decision is not available to the petitioner. If, however, the
decision did not announce a new rule, it is necessary to inquire
whether granting the relief sought would create a new rule because
the prior decision is applied in a novel setting, thereby extending
the precedent. See
Butler v.
McKellar, supra, at
414-415. The interests in finality, predictability, and comity
underlying our new rule jurisprudence may be undermined to an equal
degree by the invocation of a rule that was not dictated by
precedent as by the application of an old rule in a manner that was
not dictated by precedent.
A
A determination whether
Maynard and
Clemons
announced a new rule must begin with
Godfrey v.
Georgia,
446 U. S. 420 (1980). In
Godfrey we invalidated a death
sentence based upon the aggravating circumstance that the killing
was "outrageously or wantonly vile, horrible and inhuman."
Id., at 428-429. The formulation was deemed vague and
imprecise, inviting arbitrary and capricious application of the
death penalty in violation of the Eighth Amendment. We later
applied the same analysis and reasoning in
Maynard. In
Maynard the aggravating circumstance under an Oklahoma
statute applied to a killing that was "especially heinous,
atrocious, or cruel." 486 U. S., at 359. We found the language gave
no more guidance than did the statute in
Godfrey, and we
invalidated the Oklahoma formulation. 486 U. S., at 363-364.
In the case now before us Mississippi does not argue that
Maynard itself announced a new rule. To us this appears a
wise concession.
Godfrey and
Maynard did indeed
involve somewhat different language. But it would be a mistake to
conclude that the vagueness ruling of
Godfrey was
limited
229
to the precise language before us in that case. In applying
Godfrey to the language before us in
Maynard, we did
not "brea[k] new ground."
Butler v.
McKellar, supra,
at 412.
Maynard was, therefore, for purposes of
Teague, controlled by
Godfrey, and it did not
announce a new rule.
B
Of more substance is the State's contention that it was a new
rule to apply the
Godfrey and
Maynard holdings to the
Mississippi sentencing process. The State argues this must have
been an open question when petitioner's sentence became final, with
Clemons yet undecided. We acknowledge there are differences
in the use of aggravating factors under the Mississippi capital
sentencing system and their use in the Georgia system in
Godfrey. In our view, however, those differences could not
have been considered a basis for denying relief in light of
precedent existing at the time petitioner's sentence became final.
Indeed, to the extent that the differences are significant, they
suggest that application of the
Godfrey principle to the
Mississippi sentencing process follows,
a fortiori, from its
application to the Georgia system.
1
The principal difference between the sentencing schemes in
Georgia and Mississippi is that Mississippi is what we have termed
a "weighing" State, while Georgia is not. See
Clemons v.
Mississippi, 494 U. S., at 745;
Parker v.
Dugger,
498 U. S. 308, 318 (1991). Under Mississippi law, after a jury
has found a defendant guilty of capital murder and found the
existence of at least one statutory aggravating factor, it must
weigh the aggravating factor or factors against the mitigating
evidence. By contrast, in Georgia the jury must find the existence
of one aggravating factor before imposing the death penalty, but
aggravating factors as such have no specific function in the jury's
decision whether a defendant who has been found to be eligible for
the death penalty should
230
receive it under all the circumstances of the case. Instead,
under the Georgia scheme, "'[i]n making the decision as to the
penalty, the factfinder takes into consideration all circumstances
before it from both the guilt-innocence and the sentence phases of
the trial. These circumstances relate both to the offense and the
defendant.'"
Zant v.
Stephens, 462 U. S. 862, 872 (1983)
(quoting the response of the Georgia Supreme Court to our certified
question).
That Mississippi is a weighing State only gives emphasis to the
requirement that aggravating factors be defined with some degree of
precision. By express language in
Zant we left open the
possibility that in a weighing State infection of the process with
an invalid aggravating factor might require invalidation of the
death sentence.
Id., at 890. Although we later held in
Clemons v.
Mississippi that under such circumstances
a state appellate court could reweigh the aggravating and
mitigating circumstances or undertake harmless-error analysis, we
have not suggested that the Eighth Amendment permits the state
appellate court in a weighing State to affirm a death sentence
without a thorough analysis of the role an invalid aggravating
factor played in the sentencing process.
We require close appellate scrutiny of the import and effect of
invalid aggravating factors to implement the wellestablished Eighth
Amendment requirement of individualized sentencing determinations
in death penalty cases. See
Zant, supra, at 879;
Eddings v.
Oklahoma, 455 U. S. 104, 110-112
(1982);
Lockett v.
Ohio, 438 U. S. 586, 601-605
(1978) (plurality opinion);
Roberts v.
Louisiana,
431 U. S. 633,
636637 (1977);
Gregg v.
Georgia, 428 U. S. 153, 197 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.);
Woodson v.
North Carolina, 428 U. S. 280, 303-304
(1976) (pluralityopinion). In order for a state appellate court to
affirm a death sentence after the sentencer was instructed to
consider an invalid factor, the court must determine what the
sentencer would have done absent the factor. Otherwise, the
defend-
231
ant is deprived of the precision that individualized
consideration demands under the
Godfrey and
Maynard
line of cases.
These principles of appellate review were illustrated by our
decision in
Barclay v.
Florida, 463 U. S. 939 (1983).
Florida, like Mississippi, is a weighing State,
Parker v.
Dugger, supra, at 318, and the trial judge imposes the
sentence based upon a recommendation from the jury. In
Barclay the sentencing judge relied on an aggravating factor
that was not a legitimate one under state law. We affirmed the
sentence, but only because it was clear that the Florida Supreme
Court had determined that the sentence would have been the same had
the sentencing judge given no weight to the invalid factor. See 463
U. S., at 958 (plurality opinion);
id., at 973-974 (STEVENS,
J., concurring in judgment). Therefore, contrary to the dissent's
suggestion,
post, at 245-247, the fact that both principal
opinions in
Barclay focused on the weight the sentencer gave
to an invalid aggravating factor demonstrates that a reviewing
court in a weighing State may not make the automatic assumption
that such a factor has not infected the weighing process. In short,
it may not make the automatic assumption that Stringer claims the
Mississippi Supreme Court made in this case.
In view of the well-established general requirement of
individualized sentencing and the more specific requirement that a
sentence based on an improper factor be reassessed with care to
assure that proper consideration was given, there was no arguable
basis to support the view of the Court of Appeals that at the time
petitioner's sentence became final the Mississippi Supreme Court
was permitted to apply a rule of automatic affirmance to any death
sentence supported by multiple aggravating factors, when one is
invalid.
With respect to the function of a state reviewing court in
determining whether the sentence can be upheld despite the use of
an improper aggravating factor, the difference between a weighing
State and a nonweighing State is not one of "semantics," as the
Court of Appeals thought,
Stringer v.
232
Jackson, 862 F. 2d, at 1115, but of critical importance.
In a nonweighing State, so long as the sentencing body finds at
least one valid aggravating factor, the fact that it also finds an
invalid aggravating factor does not infect the formal process of
deciding whether death is an appropriate penalty. Assuming a
determination by the state appellate court that the invalid factor
would not have made a difference to the jury's determination, there
is no constitutional violation resulting from the introduction of
the invalid factor in an earlier stage of the proceedings. But when
the sentencing body is told to weigh an invalid factor in its
decision, a reviewing court may not assume it would have made no
difference if the thumb had been removed from death's side of the
scale. When the weighing process itself has been skewed, only
constitutional harmless-error analysis or reweighing at the trial
or appellate level suffices to guarantee that the defendant
received an individualized sentence. This clear principle emerges
not from any single case, as the dissent would require,
post, at 243-247, but from our long line of authority
setting forth the dual constitutional criteria of precise and
individualized sentencing. Thus, the principal difference between
the sentencing systems of Mississippi and Georgia, the different
role played by aggravating factors in the two States, underscores
the applicability of
Godfrey and
Maynard to the
Mississippi system.
2
Although it made no similar argument in
Clemons itself,
the State contends now that before
Clemons it was reasonable
to believe there was no constitutional requirement to define
aggravating factors with precision in the Mississippi system. It
points to the fact that in order for a jury to find a defendant
guilty of capital murder it must find that the crime fits within
the narrow and precise statutory definition of that offense. Any
additional consideration of aggravating factors during the
sentencing phase, under this view, is of no constitutional
significance because the requisite differentia-
233
tion among defendants for death penalty purposes has taken place
during the jury's deliberation with respect to guilt. The State
cites our decision in
Lowenfield v.
Phelps, 484 U. S.
231 (1988), in support of its analysis. But
Lowenfield,
arising under Louisiana law, is not applicable here and does not
indicate that
Clemons imposed a new rule.
In Louisiana, a person is not eligible for the death penalty
unless found guilty of first-degree homicide, a category more
narrow than the general category of homicide. 484 U. S., at 241. A
defendant is guilty of first-degree homicide if the Louisiana jury
finds that the killing fits one of five statutory criteria. See
id., at 242 (quoting La. Rev. Stat. Ann. § 14:30A (West
1986)). After determining that a defendant is guilty of
first-degree murder, a Louisiana jury next must decide whether
there is at least one statutory aggravating circumstance and, after
considering any mitigating circumstances, determine whether the
death penalty is appropriate. 484 U. S., at 242. Unlike the
Mississippi process, in Louisiana the jury is not required to weigh
aggravating against mitigating factors.
In
Lowenfield, the petitioner argued that his death
sentence was invalid because the aggravating factor found by the
jury duplicated the elements it already had found in determining
there was a first-degree homicide. We rejected the argument that,
as a consequence, the Louisiana sentencing procedures had failed to
narrow the class of deatheligible defendants in a predictable
manner. We observed that "[t]he use of 'aggravating circumstances'
is not an end in itself, but a means of genuinely narrowing the
class of death-eligible persons and thereby channeling the jury's
discretion. We see no reason why this narrowing function may not be
performed by jury findings at either the sentencing phase of the
trial or the guilt phase."
Id., at 244-245. We went on to
compare the Louisiana scheme with the Texas scheme, under which the
required narrowing occurs at the guilt phase.
Id., at 245
(discussing
Jurek v.
Texas, 428 U. S.
234
262 (1976)). We also contrasted the Louisiana scheme with the
Georgia and Florida schemes. 484 U. S., at 245.
The State's premise that the Mississippi sentencing scheme is
comparable to Louisiana's is in error. The Mississippi Supreme
Court itself has stated in no uncertain terms that, with the
exception of one distinction not relevant here, its sentencing
system operates in the same manner as the Florida system; and
Florida, of course, is subject to the rule forbidding automatic
affirmance by the state appellate court if an invalid aggravating
factor is relied upon. In considering a
Godfrey claim based
on the same factor at issue here, the Mississippi Supreme Court
considered decisions of the Florida Supreme Court to be the most
appropriate source of guidance. In
Gilliard v.
State,
428 So. 2d 576, 586 (1983), the Mississippi Supreme Court compared
the claim before it to the claim in
Dobbert v.
State,
375 So. 2d 1069 (Fla. 1979), cert. denied,
447 U. S. 912 (1980). The
court stated:
"In Dobbert ... the Florida Supreme Court held that even
though the lower court considered two circumstances which would not
pass constitutional muster and did not amount to aggravating
circumstances, there was one aggravating circumstance which existed
and that it was sufficient to uphold the death penalty. The only
distinction between Dobbert and the present case is that in
Dobbert, under Florida law, the judge determined the
sentence without a jury." Gilliard, supra, at 586.
Whether the Mississippi Supreme Court in
Gilliard was
adopting the kind of harmless-error rule we approved in
Barclay, 463 U. S., at 958, and if so, whether it applied
that same rule in Stringer's case, are questions relating to the
merits of Stringer's claim which we need not consider here. What is
dispositive is the fact that the Mississippi Supreme Court, which
is the final authority on the meaning of Mississippi law, has at
all times viewed the State's sentencing scheme as one in which
aggravating factors are critical in
235
the jury's determination whether to impose the death penalty.
See also
Evans v.
State, 422 So. 2d 737, 743 (Miss.
1982) (applying
Godfrey). It would be a strange rule of
federalism that ignores the view of the highest court of a State as
to the meaning of its own law. See
Teague v.
Lane,
489 U. S., at 310 (discussing federalism as one of the concerns
underlying the nonretroactivity principle).
As a matter of federal law, moreover, the view of the
Mississippi Supreme Court that
Godfrey's dictates apply to
its capital sentencing procedure is correct. Indeed, it is so
evident that the issue was not even mentioned in
Clemons.
There we took for granted, and the State did not challenge, the
proposition that if a State uses aggravating factors in deciding
who shall be eligible for the death penalty or who shall receive
the death penalty, it cannot use factors which as a practical
matter fail to guide the sentencer's discretion. See
Clemons, 494 U. S., at 756, n. 1 (opinion of BLACKMUN, J.,
joined by Brennan, Marshall, and STEVENS, JJ., concurring in part
and dissenting in part) (noting that the unconstitutionality of the
vague aggravating factor is implicit in the Court's opinion).
Even were we free to ignore the Mississippi Supreme Court's
understanding of the way its own law works, we would reject the
suggestion that
Lowenfield could form the basis for an
argument that
Godfrey does not apply to Mississippi.
Although our precedents do not require the use of aggravating
factors, they have not permitted a State in which aggravating
factors are decisive to use factors of vague or imprecise content.
A vague aggravating factor employed for the purpose of determining
whether a defendant is eligible for the death penalty fails to
channel the sentencer's discretion. A vague aggravating factor used
in the weighing process is in a sense worse, for it creates the
risk that the jury will treat the defendant as more deserving of
the death penalty than he might otherwise be by relying upon the
existence of an illusory circumstance. Because the
236
use of a vague aggravating factor in the weighing process
creates the possibility not only of randomness but also of bias in
favor of the death penalty, we cautioned in
Zant that there
might be a requirement that when the weighing process has been
infected with a vague factor the death sentence must be
invalidated.
Nothing in
Lowenfield suggests that the proscription of
vague aggravating factors does not apply to a capital sentencing
system like Mississippi's.
Lowenfield did not involve a
claim that a statutory aggravating factor was ambiguous, and its
relevance to
Godfrey, which it did not find it necessary to
cite, or the line of cases following from
Godfrey, is slight
at best.
We also note that the State's reliance on
Lowenfield to
show that it could not have anticipated
Godfrey's
application to Mississippi is somewhat odd. For
Lowenfield,
after all, was decided when the petitioner's conviction and
sentence already were final. It is a fiction for the State to
contend that in 1984 its courts relied on a 1988 decision. This is
not to say that a State could not rely on a decision announced
after a petitioner's conviction and sentence became final to defeat
his claim on the merits. It could. Insofar as our new rule
jurisprudence "validates reasonable, good-faith interpretations of
existing precedents,"
Butler v.
McKellar, 494 U. S.,
at 414, however, the State may have little cause to complain if in
deciding to allow a petitioner to rely upon a decision the federal
courts look only to those precedents which the state courts knew at
the relevant time. In any event, we need not dwell on the
anachronism inherent in the State's
Lowenfield argument
because, as we have concluded, that case does not provide a basis
for concluding that it was a new rule to apply
Godfrey to
the Mississippi system.
The State next argues that
Clemons' application of
Godfrey to Mississippi could not have been dictated by
precedent because prior to
Clemons the Fifth Circuit
concluded that
Godfrey did not apply to Mississippi. See
Evans v.
Thigpen,
237
809 F.2d
239, cert. denied, 483 U. S. 1033 (1987);
Johnson v.
Thigpen, 806 F.2d
1243 (1986), cert. denied, 480 U. S. 951 (1987). Before
addressing the merits of this argument we reiterate that the
rationale of the Fifth Circuit has not been adopted by the
Mississippi Supreme Court, which, as a state court, is the primary
beneficiary of the
Teague doctrine. The Mississippi Supreme
Court has recognized that it is bound by
Godfrey. See,
e.
g., Mhoon v.
State, 464 So. 2d 77, 85 (1985) (requiring,
based on
Godfrey, that a capital sentencing jury be given a
narrowing construction of the "heinous, atrocious or cruel"
factor).
The Fifth Circuit's
pre-Clemons views are relevant to our
inquiry, see
Butler, supra, at 415, but not dispositive. The
purpose of the new rule doctrine is to validate reasonable
interpretations of existing precedents. Reasonableness, in this as
in many other contexts, is an objective standard, and the ultimate
decision whether
Clemons was dictated by precedent is based
on an objective reading of the relevant cases. The short answer to
the State's argument is that the Fifth Circuit made a serious
mistake in
Evans v.
Thigpen and
Johnson v.
Thigpen. The Fifth Circuit ignored the Mississippi Supreme
Court's own characterization of its law and accorded no
significance to the fact that in Mississippi aggravating factors
are central in the weighing phase of a capital sentencing
proceeding. As we have explained, when these facts are accorded
their proper significance, the precedents even before
Maynard and
Clemons yield a well-settled principle:
Use of a vague or imprecise aggravating factor in the weighing
process invalidates the sentence and at the very least requires
constitutional harmless-error analysis or reweighing in the state
judicial system.
We reverse the decision of the Court of Appeals and remand the
case for further proceedings consistent with this opinion.
It is so ordered.
238
JUSTICE SOUTER, with whom JUSTICE SCALIA and J usTICE THOMAS
join, dissenting.
Today the Court holds that no reasonable jurist could have
believed in 1985, two years after
Zant v.
Stephens,
462 U. S. 862
(1983), that the holding of that case would apply to a socalled
"weighing" State. The Court maintains, on the contrary, that in
1985 it was obvious that a sentencer's weighing of a vague
aggravating circumstance deprives a defendant of individualized
sentencing. While that may be obvious after
Maynard v.
Cartwright, 486 U. S. 356 (1988), I
submit that was not so before this Court decided that case. I
respectfully dissent.
I
Under the principle first announced in
Teague v.
Lane,
489 U. S. 288 (1989), a prisoner seeking habeas corpus relief
in federal court generally cannot benefit from a new rule announced
after the prisoner's conviction became final,
id., at 301
(plurality opinion), that is, after exhausting all direct appeals,
see
Penry v.
Lynaugh, 492 U. S. 302, 314
(1989). A decision announces a new rule "if the result was not
dictated by precedent existing at the time the defendant's
conviction became final."
Teague, supra, at 301 (plurality
opinion) (emphasis omitted). The result in a given case is not
dictated by precedent if it is "susceptible to debate among
reasonable minds,"
Butler v.
McKellar, 494 U. S. 407, 415
(1990), or, put differently, if "reasonable jurists may disagree,"
Sawyer v.
Smith, 497 U. S. 227, 234
(1990).
Petitioner's conviction became final for
Teague purposes
on February 19, 1985. He now claims the benefit of the rule that an
Eighth Amendment violation occurs when a sentencer in a weighing
State considers a vague aggravating circumstance, even if the
sentencer has also found the existence of at least one other
aggravating circumstance that is neither vague nor otherwise
infirm. Because this Court never endorsed that position before
February 19, 1985, I will discuss the relevant pre-1985 decisions,
infra, Part I -A, and
239
the post-1985 decisions that, implicitly at least, announced the
rule petitioner invokes,
infra, Part I -B. Finally, I will
enquire whether this rule was dictated by the pre-1985 decisions,
infra, Part II.
A
The cases determining the apposite law before 1985 start with
Godfrey v.
Georgia, 446 U. S. 420 (1980).
Under the Georgia sentencing scheme, a defendant is given a life
sentence unless the jury finds one or more aggravating
circumstances. Once the jury does that, aggravating circumstances
no longer play a role: the jury is instructed to determine whether
the defendant should receive a death sentence by considering all
the evidence in aggravation and in mitigation. The jury is not
instructed to weigh any aggravating circumstances against
mitigating circumstances. In
Godfrey, a Georgia jury had
returned a death verdict on the strength of just one aggravating
circumstance, that the murder was "outrageously or wantonly vile,
horrible and inhuman."
Id., at 426 (plurality opinion).
Saying that "[a] person of ordinary sensibility could fairly
categorize almost every murder as 'outrageously or wantonly vile,
horrible and inhuman,'"
id., at 428-429, this Court held
that this circumstance failed to impose any "restraint on the
arbitrary and capricious infliction of the death sentence,"
id., at 428. Accordingly, Georgia's sentencing scheme, as
applied, violated the Eighth Amendment in the same way as the
scheme struck down in
Furman v.
Georgia, 408 U. S. 238 (1972): it
failed to "provide a meaningful basis for distinguishing the few
cases in which [the penalty] is imposed from the many cases in
which it is not." 446 U. S., at 427 (internal quotation marks
omitted).
After
Godfrey came
Zant v.
Stephens,
462 U. S. 862
(1983), arising from a Georgia jury's death verdict based on a
showing of several aggravating circumstances, one of which was that
respondent had "a substantial history of serious assaultive
criminal convictions,"
id., at 866. Shortly after
respond-
240
ent's sentencing, the Supreme Court of Georgia, in a different
case, held that the "substantial history" circumstance left "a wide
latitude of discretion in a jury as to whether or not to impose the
death penalty," rendering a death sentence imposed upon the
strength of the "substantial history" circumstance alone
unconstitutional under
Furman. Arnold v.
State, 236
Ga. 534, 541, 224 S. E. 2d 386, 392 (1976). The Supreme Court of
Georgia nevertheless refused to vacate Stephens' sentence, holding
it adequately supported by the other, unchallenged, aggravating
circumstances.
Stephens v.
State, 237 Ga. 259,
261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U. S. 986 (1976).
This Court agreed, holding
Godfrey to be distinguishable
because, in that case, the single aggravating circumstance failed
to narrow the class of persons eligible for the death penalty, as
required by the Eighth Amendment, 462 U. S., at 878, while in
Stephens, the remaining aggravating circumstances properly
discharged the narrowing obligation,
id., at 879. The
vagueness of one among several aggravating circumstances was
therefore held to be irrelevant, and the scheme itself adequate
under
Furman, 462 U. S., at 888-889, so long as it included
mandatory appellate review for any arbitrariness or
disproportionality stemming from some other source,
id., at
890.
The last relevant pre-1985 decision is
Barclay v.
Florida, 463
U. S. 939 (1983). The Florida scheme, like the one in Georgia,
requires the sentencer to impose a life sentence if it finds no
aggravating circumstances present. But, unlike Georgia, Florida is
a weighing State, in which the sentencer who finds that one or more
aggravating circumstances exist must determine the sentence by
weighing aggravating and mitigating circumstances. In
Barclay, a judge had imposed a death sentence after finding
several aggravating circumstances, one of which was that the
petitioner had a criminal record,
id., at 944-945, which
Florida law did not recognize as an aggravating circumstance,
id., at 946. This Court held that the resulting death
sentence did not violate the Eighth
241
Amendment, for the same reason the sentence in
Stephens
did not: the remaining aggravating circumstances satisfied the
Eighth Amendment's narrowing requirement. See
id., at 957
(plurality opinion);
id., at 966-967 (STEVENS, J.,
concurring in judgment); see also
id., at 947-948, n. 5
(plurality opinion) (distinguishing
Godfrey as involving
only one aggravating circumstance).
B
The first case in which this Court applied the rule from which
petitioner seeks to benefit was
Maynard v.
Cartwright, 486 U. S. 356 (1988).
There, an Oklahoma jury had found the presence of two aggravating
circumstances, one of which was that the murder was "especially
heinous, atrocious, or cruel." Because Oklahoma is a weighing
State, the trial court had instructed the jury that, in determining
the penalty, it should weigh these aggravating circumstances
against any mitigating circumstances, and the jury had eventually
returned a verdict of death. On collateral review, the Court of
Appeals for the Tenth Circuit held that the "heinous, atrocious, or
cruel" circumstance without further instruction was vague in the
Godfrey sense. See
Cartwright v.
Maynard,
822 F.2d
1477, 1485-1491 (1987) (en bane). Distinguishing
Stephens, the Court of Appeals held that this vagueness
amounted to an Eighth Amendment violation because Oklahoma was a
weighing State, 822 F. 2d, at 1480.1 It vacated Cartwright's
sentence, noting that Oklahoma's highest court had failed to cure
the constitutional defect by either reweighing or performing
harmless-error review,
id., at 1482.
This Court affirmed, holding that
Godfrey controlled
because the "especially heinous, atrocious, or cruel" circumstance
gave no more guidance than the "outrageously or
1 There are only hints in its opinion of the reason this
distinction made a difference. See 822 F. 2d, at 1480-1481
(individualized sentencing);
id., at 1485 (narrowing).
242
wantonly vile, horrible and inhuman" circumstance in
Godfrey, 486 U. S., at 363-364. The Court rejected
Oklahoma's argument that Cartwright's sentence was adequately
supported by the unchallenged aggravating circumstance, observing
that Oklahoma's highest court had a practice of not attempting to
"save the death penalty when one of several aggravating
circumstances ... was found invalid,"
id., at 365. (Instead,
that court would simply commute any death sentence imposed after
finding an "invalid" aggravating circumstance into a sentence of
life imprisonment, see
id., at 359.) The Court said that
"the Court of Appeals cannot be faulted for not itself undertaking
what the state courts themselves refused to do,"
id., at
365.
Cartwright was followed by
Clemons v.
Mississippi, 494 U. S. 738 (1990).
Like Oklahoma, Mississippi is a weighing State, and a jury had
returned a death verdict finding that two aggravating circumstances
were present (one of which had been that the crime was "especially
heinous, atrocious, or cruel"), and finding that these two
aggravating circumstances outweighed any mitigating circumstances.
The Supreme Court of Mississippi had affirmed, distinguishing
Cartwright on the ground,
inter alia, that, while
Oklahoma had no procedure for salvaging a death sentence resting in
part on a vague aggravating circumstance, there was an established
procedure in Mississippi. "[W]hen one aggravating circumstance is
found to be invalid ... , a remaining valid aggravating
circumstance will nonetheless support the death penalty verdict."
494 U. S., at 743-744 (internal quotation marks omitted). In this
Court, Clemons argued that where a jury had originally imposed a
death sentence, the Constitution demanded resentencing by a jury
whenever a state appellate court found that the jury had considered
an unconstitutionally vague aggravating circumstance.
Id.,
at 744. This Court rejected the argument, saying that nothing in
the Constitution forbade a state appellate court to salvage an
unconstitutional sentence,
id., at 745-750, although, at
a
243
minimum, the state appellate court would have to reweigh or
perform harmless-error review,
id., at 751-752.
In rejecting a more relaxed rule "authorizing or requiring
affirmance of a death sentence so long as there remains at least
one valid aggravating circumstance," the Court explained:
"An automatic rule of affirmance in a weighing State would be
invalid under Lockett v. Ohio, 438 U. S. 586 (1978), and
Eddings v. Oklahoma, 455 U. S. 104 (1982), for
it would not give defendants the individualized treatment that
would result from actual reweighing of the mix of mitigating
factors and aggravating circumstances. Cf. Barclay v.
Florida, [supra, at 958]." Id., at 752.
See also
Parker v.
Dugger, 498 U. S. 308, 321-322
(1991).
Today the Court adds to
Clemons' explanation by reasoning
that a sentencer's weighing of a vague aggravating circumstance
deprives the defendant of individualized sentencing because it
"creates the possibility ... of randomness."
Ante, at 236.
The Court says that a sentencer's weighing of a vague aggravating
circumstance may "ske[w]" the weighing process,
ante, at
232, by placing a "thumb [on] death's side of the scale,"
ibid., by "creat[ing] the risk [of] treat[ing] the defendant
as more deserving of the death penalty,"
ante, at 235-236,
or by "creat[ing] the possibility ... of bias in favor of the death
penalty,"
ibid.2
II
Like Godfrey and Stephens, the petitioner in the instant case
was sentenced to death after a finding of a vague aggra-
2 The mere fact that an aggravating circumstance inclines a
sentencer more towards imposing the death penalty cannot, of
course, violate the Eighth Amendment. I therefore read the majority
opinion to object to the weighing of vague aggravating
circumstances only because they skew the operation of the scheme by
their random application from case to case.
244
vating circumstance. Like Stephens, but unlike Godfrey, he was
sentenced on the basis of more than one aggravating circumstance,
only one of which he challenged. The issue in this case, then, is
whether it would have been reasonable to believe in 1985 that a
sentencer's weighing of a vague 3 aggravating circumstance does not
offend the Eighth Amendment so long as the sentencer has found at
least one other valid aggravating circumstance.4 Put differently,
the question is whether it would have been reasonable to believe in
1985 that the holding in
Stephens could apply to a weighing
State. The majority answers these questions in the negative, saying
that in 1985, no reasonable jurist could have failed to discover a
concern with randomness in this Court's individualized-sentencing
cases, or have failed to realize that a sentencer's weighing of a
vague aggravating circumstance deprives a defendant of
individualized sentencing. I think this answer endues the jurist
with prescience, not reasonableness.
It is true that the Court in
Stephens reserved judgment
on the question whether its holding would apply to a weighing
State:
3 I say vague and not, as the majority does, invalid, see
ante, at 230, 231.
There might indeed have been invalid aggravating circumstances
whose consideration, even with one or more valid ones, would have
tainted an ensuing death sentence in any reasonable view in 1985.
Thus, it would have been unreasonable to believe in 1985 that a
capital sentence could stand, without more, if the sentencer had
been instructed, say, to consider constitutionally protected
behavior in aggravation. See
Barclay v.
Florida,
463 U. S. 939,
956 (1983) (plurality opinion);
Zant v.
Stephens, 462
U. S. 862, 885 (1983). But I would apply that proposition to
weighing and nonweighing States alike.
4 Because, in this case, valid aggravating circumstances
remained, I need not discuss respondents' argument that it was
reasonable to believe in 1985 that the Mississippi murder statute
performed all constitutionally required narrowing in the guilt
phase of petitioner's trial. Cf.
Lowenfield v.
Phelps, 484 U.
S. 231 (1988).
245
"[I]n deciding this case we do not express any opinion
concerning the possible significance of a holding that a particular
aggravating circumstance is 'invalid' under a statutory scheme in
which the judge or jury is specifically instructed to weigh
statutory aggravating and mitigating circumstances in exercising
its discretion whether to impose the death penalty." 462 U. S., at
890.
I agree that this statement would have put a reasonable jurist
on notice that
Stephens' rule might not apply to a weighing
State, but the answer to the question reserved was no foregone
conclusion. It is worth remembering that the Georgia jury in
Stephens was instructed simply to "conside[r]" all
aggravating and mitigating evidence, see
id., at 871,
leaving it with what the respondent described as "unbridled
discretion" at the final stage of sentencing,
id., at 875,
which this Court found to be no violation of the Eighth Amendment,
id., at 875-880. If unguided discretion created no risk of
randomness, it was hardly obvious that this risk arose when a vague
aggravating circumstance was weighed. To conclude after
Stephens that the outcome in
Cartwright and
Clemons was dictated is a leap of reason.
The leap lengthens when one considers
Barclay, for I
think a reasonable jurist, in 1985, could have concluded that this
Court resolved the question reserved in
Stephens when it
decided
Barclay, which strongly implied that the
Stephens principle applied to weighing States like Florida.
See 463 U. S., at 957 (plurality opinion);
id., at 966-967
(STEVENS, J., concurring in judgment). The majority attempts to
minimize
Barclay by saying that the
Barclay Court
upheld the sentence "only because it was clear that the Florida
Supreme Court had determined that the sentence would have been the
same had the sentencing judge given no weight to the invalid
factor."
Ante, at 231 (citing 463 U. S., at 958
(pluralityopinion)). But I do not think
Barclay can be
explained away so easily.
246
It is true that the plurality opinion noted that the Supreme
Court of Florida performed harmless-error review.
Ibid. But
the opinion's discussion of this point merely responded to
Barclay's argument that the Supreme Court of Florida had failed to
apply state-law precedent properly, which, Barclay maintained,
required harmless-error review. See
id., at 957. The
plurality rejected that argument, saying that failure to apply
those cases would be "mere errors of state law [that] are not the
concern of this Court," and that, in any event, the Supreme Court
of Florida had, contrary to petitioner's assertions, performed
harmless-error review.
Id., at 957-958. Nothing in the
plurality's opinion suggests that harmless-error review would be
constitutionally required where the sentencer had weighed an
"invalid" aggravating circumstance.
It is also true that the concurrence of JUSTICE STEVENS and
Justice Powell, who cast the deciding votes in
Barclay,
stated that Florida law required the Supreme Court of Florida to
reweigh aggravating and mitigating circumstances. See
id.,
at 974 (opinion concurring in judgment). But that simply responded
to Barclay's argument that the Supreme Court of Florida failed to
perform the quantum of appellate review that the Constitution
requires in every capital case (regardless of whether the trial
court commits state-law error). See
id., at 972-973. JUSTICE
STEVENS' opinion merely noted that the principal opinion in
Proffitt v.
Florida, 428 U. S. 242, 253 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.), had held that
reweighing satisfied the appellate-review obligation imposed by the
Constitution. 463 U. S., at 974. JUSTICE STEVENS never said that
reweighing would be the constitutionally required minimum where the
sentencer had weighed an "invalid" aggravating circumstance.
Although
Barclay may be read as assuming that some
appellate test must be passed if a death verdict is to stand in a
weighing State despite the finding of an invalid aggravating
247
circumstance, nowhere do the opinions state that the State
Supreme Court's mandated proportionality review would not satisfy
the required constitutional minimum. See
Proffitt, supra, at
258 (joint opinion of Stewart, Powell, and STEVENS, JJ.) ("The
Supreme Court of Florida reviews each death sentence to ensure that
similar results are reached in similar cases"). Mississippi law
requires just such review. See
ante, at 226.
In sum, after
Barclay, a jurist mindful of the
Stephens caveat could reasonably have assumed that weighing
one invalid aggravating circumstance along with one or more valid
ones need not be treated as significant enough to amount to
constitutional error in a State that at least provided appellate
review for proportionality. That is dispositive under
Teague: a reasonable reading of
Barclay bars the
conclusion that the result in
Cartwright and
Clemons
was dictated by the cases on our books in 1985.
The Fifth Circuit, indeed, held as recently as 1988 that the
rule in
Stephens applied to a weighing State. See
Stringer v.
Jackson, 862 F.2d
1108, 1115 (1988);
Edwards v.
Scroggy, 849 F.2d
204,211 (1988).5 The conflict between its view and that of the
Tenth Circuit, see
Cartwright v.
Maynard, 822 F. 2d
1477, 1480 (1987) (en bane), is itself evidence that it was not
unreasonable to believe in 1985 that
Stephens would govern
the result in this case. See
Butler v.
McKellar, 494
U. S., at 415. Nor, in light of my analysis, can the Fifth
Circuit's opinion be dismissed as having "no arguable basis to
support" the view expressed,
ante, at 231.
III
In sum, I do not think that precedent in 1985 dictated the rule
that weighing a vague aggravating circumstance neces-
5 This was after we announced
Cartwright. The Fifth
Circuit distinguished that case in the same way the Supreme Court
of Mississippi distinguished
Cartwright in
Clemons.
See
Stringer, 862 F. 2d, at 1113;
Edwards, 849 F. 2d,
at 211, n. 7.
248
sarily violates the Eighth Amendment as long as there is a
finding of at least one other, unobjectionable, aggravating
circumstance. It follows that I think it was reasonable to believe
that neither reweighing nor harmless-error review would be required
in that situation.
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