Bradshaw v. Stumpf

(Slip Opinion) OCTOBER TERM, 2004 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BRADSHAW, WARDEN v. STUMPF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 04–637. Argued April 19, 2005—Decided June 13, 2005

Respondent Stumpf and his accomplice Wesley committed an armed

robbery that left Mr. Stout wounded and Mrs. Stout dead. Stumpf

admitted shooting Mr. Stout but has always denied killing Mrs.

Stout. In Ohio state court proceedings, Stumpf pleaded guilty to,

among other things, aggravated murder and one of three capital

murder specifications charged in his indictment. This left Stumpf

eligible for the death penalty. In a contested penalty hearing before a

three-judge panel, Stumpf ’s principal mitigation arguments were

that he had participated in the robbery at Wesley’s urging, that

Wesley had killed Mrs. Stout, and that Stumpf ’s minor role in the

murder counseled against the death sentence. The State, however,

claimed that Stumpf had shot Mrs. Stout, and that he therefore was

the principal offender in her murder. In the alternative, the State

noted that even an accomplice can be sentenced to death under Ohio

law if he acted with the specific intent to cause death, and the State

argued that such intent could be inferred from the circumstances of

the robbery regardless of who actually shot Mrs. Stout. The panel

concluded that Stumpf was the principal offender and sentenced him

to death. At Wesley’s subsequent jury trial, however, the State pre-

sented evidence that Wesley had admitted to shooting Mrs. Stout.

But Wesley argued that the prosecutor had taken a contrary position

in Stumpf ’s trial, and Wesley was sentenced to life in prison with the

possibility of parole. After Wesley’s trial, Stumpf moved to withdraw

his own plea or vacate his death sentence, arguing that the evidence

endorsed by the State in Wesley’s trial cast doubt on Stumpf ’s convic-

tion and sentence. This time, however, the prosecutor emphasized

other evidence confirming Stumpf as the shooter and again raised, in

the alternative, the aider-and-abettor theory. The court denied

2 BRADSHAW v. STUMPF

Syllabus

Stumpf ’s motion, and Ohio’s appellate courts affirmed. Subse-

quently, the Federal District Court denied Stumpf habeas relief, but

the Sixth Circuit reversed on two grounds. First, the Sixth Circuit

found that Stumpf had not understood that specific intent to cause

death was a necessary element of the aggravated murder charge, and

that his guilty plea therefore had not been knowing, voluntary, and

intelligent. Second, the court found that the conviction and sentence

could not stand because the State had secured convictions of both

Stumpf and Wesley for the same crime, using inconsistent theories.

Held:

1. The Sixth Circuit erred in concluding that Stumpf was unin-

formed of the aggravated murder charge’s specific intent element.

While a guilty plea is invalid if the defendant has not been informed

of the crime’s elements, Stumpf ’s attorneys represented at his plea

hearing that they had explained the elements to their client, and

Stumpf confirmed that the representation was true. This Court has

never held that the judge must himself explain a crime’s elements to

the defendant. Rather, constitutional requirements may be satisfied

where the record accurately reflects that the charge’s nature and the

crime’s elements were explained to the defendant by his own, compe-

tent counsel. Stumpf argues that his plea was so inconsistent with

his denial of having shot Mrs. Stout that he could only have pleaded

guilty out of ignorance of the aggravated murder charge’s specific in-

tent element. But that argument fails because Stumpf ’s conviction

did not require a showing that Stumpf had shot Mrs. Stout. Ohio law

also considers aiders and abettors who act with specific intent to

cause death liable for aggravated murder. Stumpf and Wesley en-

tered the Stout home with guns, intending to commit armed robbery,

and Stumpf admitted shooting Mr. Stout. Taken together, these facts

could show that the two men had agreed to kill both Stouts, which in

turn could make both men guilty of aggravated murder regardless of

who shot Mrs. Stout. Stumpf ’s claim that he and his attorneys were

confused about the relevance and timing of defenses that they

planned to make is not supported by the record. Finally, the plea’s

validity may not be collaterally attacked on the ground that Stumpf

made what he now claims was a bad deal. Pp. 6–10.

2. The Sixth Circuit was also wrong to hold that prosecutorial in-

consistencies between the Stumpf and Wesley cases required voiding

Stumpf ’s guilty plea. The precise identity of the triggerman was im-

material to Stumpf ’s aggravated murder conviction, and Stumpf has

never explained how the prosecution’s postplea use of inconsistent

arguments could have affected the knowing, voluntary, and intelli-

gent nature of his plea. P. 11.

3. The prosecutor’s use of allegedly inconsistent theories may have

Cite as: 545 U. S. ____ (2005) 3

Syllabus

a more direct effect on Stumpf ’s sentence, however, for it is arguable

that the sentencing panel’s conclusion about his role was material to

its sentencing determination. The opinion below leaves some ambi-

guity as to the overlap between how the lower court resolved

Stumpf ’s due process challenge to his conviction and how it resolved

his challenge to his sentence. It is not clear whether the Court of Ap-

peals would have found Stumpf entitled to resentencing had it not

also considered the conviction invalid. Likewise, the parties’ briefing

here, and the question on which this Court granted certiorari, largely

focused on the conviction. In these circumstances, it would be prema-

ture for this Court to resolve the merits of Stumpf ’s sentencing claim

before giving the Sixth Circuit the opportunity to consider in the first

instance the question of how the prosecutor’s conduct in the Stumpf

and Wesley cases related to Stumpf ’s death sentence in particular.

Pp. 11–12.

367 F. 3d 594, reversed in part, vacated in part, and remanded.

O’CONNOR, J., delivered the opinion for a unanimous Court. SOUTER,

J., filed a concurring opinion in which GINSBURG, J., joined. THOMAS, J.,

filed a concurring opinion, in which SCALIA, J., joined.

Cite as: 545 U. S. ____ (2005) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–637

_________________

MARGARET BRADSHAW, WARDEN, PETITIONER v.

JOHN DAVID STUMPF

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 13, 2005]

JUSTICE O’CONNOR delivered the opinion of the Court.

This case concerns respondent John David Stumpf ’s

conviction and death sentence for the murder of Mary

Jane Stout. In adjudicating Stumpf ’s petition for a writ of

habeas corpus, the United States Court of Appeals for the

Sixth Circuit granted him relief on two grounds: that his

guilty plea was not knowing, voluntary, and intelligent,

and that his conviction and sentence could not stand

because the State, in a later trial of Stumpf ’s accomplice,

pursued a theory of the case inconsistent with the theory

it had advanced in Stumpf ’s case. We granted certiorari

to review both holdings. 543 U. S. ___ (2005).

I

On May 14, 1984, Stumpf and two other men, Clyde

Daniel Wesley and Norman Leroy Edmonds, were travel-

ing in Edmonds’ car along Interstate 70 through Guernsey

County, Ohio. Needing money for gas, the men stopped

the car along the highway. While Edmonds waited in the

car, Stumpf and Wesley walked to the home of Norman

and Mary Jane Stout, about 100 yards away. Stumpf and

Wesley, each concealing a gun, talked their way into the

2 BRADSHAW v. STUMPF

Opinion of the Court

home by telling the Stouts they needed to use the phone.

Their real object, however, was robbery: Once inside,

Stumpf held the Stouts at gunpoint, while Wesley ran-

sacked the house. When Mr. Stout moved toward Stumpf,

Stumpf shot him twice in the head, causing Mr. Stout to

black out. After he regained consciousness, Mr. Stout

heard two male voices coming from another room, and

then four gunshots—the shots that killed his wife. Ed-

monds was arrested shortly afterward, and his statements

led the police to issue arrest warrants for Stumpf and

Wesley. Stumpf, who surrendered to the police, at first

denied any knowledge of the crimes. After he was told

that Mr. Stout had survived, however, Stumpf admitted to

participating in the robbery and to shooting Mr. Stumpf.

But he claimed not to have shot Mrs. Stout, and he has

maintained that position ever since.

The proceedings against Stumpf occurred while Wesley,

who had been arrested in Texas, was still resisting extra-

dition to Ohio. Stumpf was indicted for aggravated mur-

der, attempted aggravated murder, aggravated robbery,

and two counts of grand theft. With respect to the aggra-

vated murder charge, the indictment listed four statutory

“specifications”—three of them aggravating circumstances

making Stumpf eligible for the death penalty. See App.

117–118; Ohio Rev. Code Ann. §2929.03 (Anderson 1982).*

The case was assigned to a three-judge panel in the Court

of Common Pleas.

Rather than proceed to trial, however, Stumpf and the

State worked out a plea agreement: Stumpf would plead

guilty to aggravated murder and attempted aggravated

murder, and the State would drop most of the other

charges; with respect to the aggravated murder charge,

——————

* Unless otherwise noted, all citations to Ohio statutes refer to the

versions of those statutes in effect in 1984, at the time of the crime and

trial.

Cite as: 545 U. S. ____ (2005) 3

Opinion of the Court

Stumpf would plead guilty to one of the three capital

specifications, with the State dropping the other two. The

plea was accepted after a colloquy with the presiding

judge, and after a hearing in which the panel satisfied

itself as to the factual basis for the plea.

Because the capital specification to which Stumpf

pleaded guilty left him eligible for the death penalty, a

contested penalty hearing was held before the same three-

judge panel. Stumpf ’s mitigation case was based in part

on his difficult childhood, limited education, dependable

work history, youth, and lack of prior serious offenses.

Stumpf ’s principal argument, however, was that he had

participated in the plot only at the urging and under the

influence of Wesley, that it was Wesley who had fired the

fatal shots at Mrs. Stout, and that Stumpf ’s assertedly

minor role in the murder counseled against the death

sentence. See §2929.04(B)(6) (directing the sentencer to

consider as a potential mitigating circumstance, “[i]f the

offender was a participant in the offense but not the prin-

cipal offender, the degree of the offender’s participation in

the offense”). The State, on the other hand, argued that

Stumpf had indeed shot Mrs. Stout. Still, while the prose-

cutor claimed Stumpf ’s allegedly primary role in the

shooting as a special reason to reject Stumpf ’s mitigation

argument, the prosecutor also noted that Ohio law did not

restrict the death penalty to those who commit murder by

their own hands—an accomplice to murder could also

receive the death penalty, so long as he acted with the

specific intent to cause death. As a result, the State ar-

gued, Stumpf deserved death even if he had not personally

shot Mrs. Stout, because the circumstances of the robbery

provided a basis from which to infer Stumpf’s intent to

cause death. The three-judge panel, agreeing with the

State’s first contention, specifically found that Stumpf

“was the principal offender” in the aggravated murder of

Mrs. Stout. App. 196. Determining that the aggravating

4 BRADSHAW v. STUMPF

Opinion of the Court

factors in Stumpf ’s case outweighed any mitigating fac-

tors, the panel sentenced Stumpf to death.

Afterward, Wesley was successfully extradited to Ohio

to stand trial. His case was tried to a jury, before the

same judge who had presided over the panel overseeing

Stumpf ’s proceedings, and with the same prosecutor. This

time, however, the prosecutor had new evidence: James

Eastman, Wesley’s cellmate after his extradition, testified

that Wesley had admitted to firing the shots that killed

Mrs. Stout. The prosecutor introduced Eastman’s testi-

mony in Wesley’s trial, and in his closing argument he

argued for Wesley’s credibility and lack of motive to lie.

The prosecutor claimed that Eastman’s testimony, com-

bined with certain circumstantial evidence and with the

implausibility of Wesley’s own account of events, proved

that Wesley was the principal offender in Mrs. Stout’s

murder—and that Wesley therefore deserved to be put to

death. One way Wesley countered this argument was by

noting that the prosecutor had taken a contrary position

in Stumpf ’s trial, and that Stumpf had already been sen-

tenced to death for the crime. Wesley also took the stand

in his own defense, and testified that Stumpf had shot

Mrs. Stout. In the end, the jury sentenced Wesley to life

imprisonment with the possibility of parole after 20 years.

After the Wesley trial, Stumpf, whose direct appeal was

still pending in the Ohio Court of Appeals, returned to the

Court of Common Pleas with a motion to withdraw his

guilty plea or vacate his death sentence. Stumpf argued

that Eastman’s testimony, and the prosecution’s endorse-

ment of that testimony in Wesley’s trial, cast doubt upon

Stumpf ’s conviction and sentence. The State (represented

again by the same prosecutor who had tried both Wesley’s

case and Stumpf ’s original case) disagreed. According to

the prosecutor, the court’s first task was to decide whether

the Eastman testimony was sufficient to alter the court’s

prior determination that Stumpf had been the shooter.

Cite as: 545 U. S. ____ (2005) 5

Opinion of the Court

Id., at 210. Contrary to the argument he had presented in

the Wesley trial, however, the prosecutor now noted that

Eastman’s testimony was belied by certain other evidence

(ballistics evidence and Wesley’s testimony in his own

defense) confirming Stumpf to have been the primary

shooter. In the alternative, the State noted as it had

before that an aider-and-abettor theory might allow the

death sentence to be imposed against Stumpf even if he

had not shot Mrs. Stout.

Although one judge speculated during oral argument

that the court’s earlier conclusion about Stumpf ’s princi-

pal role in the killing “may very well have had an effect

upon” the prior sentencing determination, ibid., the Court

of Common Pleas denied Stumpf ’s motion in a brief sum-

mary order without explanation. That order was appealed

together with the original judgment in Stumpf ’s case, and

the Ohio Court of Appeals affirmed, as did the Ohio Su-

preme Court. State v. Stumpf, 32 Ohio St. 3d 95, 512

N. E. 2d 598 (1987), cert. denied, 484 U. S. 1079 (1988).

After a subsequent request for state postconviction relief

was denied by the state courts, Stumpf filed this federal

habeas petition in the United States District Court for the

Southern District of Ohio in November 1995. The District

Court denied Stumpf relief, but granted permission to

appeal on four claims, including the two at issue here.

The United States Court of Appeals for the Sixth Circuit

reversed, concluding that habeas relief was warranted on

“either or both” of “two alternative grounds.” Stumpf v.

Mitchell, 367 F. 3d 594, 596 (2004). First, the court de-

termined that Stumpf ’s guilty plea was invalid because it

had not been entered knowingly and intelligently. More

precisely, the court concluded that Stumpf had pleaded

guilty to aggravated murder without understanding that

specific intent to cause death was a necessary element of

the charge under Ohio law. See Ohio Rev. Code Ann.

§§2903.01(B) and (D). Noting that Stumpf had all along

6 BRADSHAW v. STUMPF

Opinion of the Court

denied shooting Mrs. Stout, and considering those denials

inconsistent with an informed choice to plead guilty to

aggravated murder, the Court of Appeals concluded that

Stumpf must have entered his plea out of ignorance.

Second, the court concluded that “Stumpf ’s due process

rights were violated by the state’s deliberate action in

securing convictions of both Stumpf and Wesley for the

same crime, using inconsistent theories.” 367 F. 3d, at

596. This violation, the court held, required setting aside

“both Stumpf ’s plea and his sentence.” Id., at 616. One

member of the panel dissented.

II

Because Stumpf filed his habeas petition before enact-

ment of the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), we review his claims under the stan-

dards of the pre-AEDPA habeas statute. See Lindh v.

Murphy, 521 U. S. 320 (1997). Moreover, because petitioner

has not argued that Stumpf ’s habeas claims were barred as

requiring announcement of a new rule, we do not apply the

rule of Teague v. Lane, 489 U. S. 288 (1989), to this case.

See Schiro v. Farley, 510 U. S. 222, 229 (1994); Godinez v.

Moran, 509 U. S. 389, 397, n. 8 (1993).

A

The Court of Appeals concluded that Stumpf ’s plea of

guilty to aggravated murder was invalid because he was

not aware of the specific intent element of the charge—a

determination we find unsupportable.

Stumpf ’s guilty plea would indeed be invalid if he had

not been aware of the nature of the charges against him,

including the elements of the aggravated murder charge to

which he pleaded guilty. A guilty plea operates as a

waiver of important rights, and is valid only if done volun-

tarily, knowingly, and intelligently, “with sufficient aware-

ness of the relevant circumstances and likely consequences.”

Cite as: 545 U. S. ____ (2005) 7

Opinion of the Court

Brady v. United States, 397 U. S. 742, 748 (1970). Where a

defendant pleads guilty to a crime without having been

informed of the crime’s elements, this standard is not met

and the plea is invalid. Henderson v. Morgan, 426 U. S. 637

(1976).

But the Court of Appeals erred in finding that Stumpf had

not been properly informed before pleading guilty. In

Stumpf ’s plea hearing, his attorneys represented on the

record that they had explained to their client the elements

of the aggravated murder charge; Stumpf himself then

confirmed that this representation was true. See App.

135, 137–138. While the court taking a defendant’s plea is

responsible for ensuring “a record adequate for any review

that may be later sought,” Boykin v. Alabama, 395 U. S.

238, 244 (1969), we have never held that the judge must

himself explain the elements of each charge to the defen-

dant on the record. Rather, the constitutional prerequi-

sites of a valid plea may be satisfied where the record

accurately reflects that the nature of the charge and the

elements of the crime were explained to the defendant by

his own, competent counsel. Cf. Henderson, supra, at 647

(granting relief to a defendant unaware of the elements of

his crime, but distinguishing that case from others where

“the record contains either an explanation of the charge by

the trial judge, or at least a representation by defense coun-

sel that the nature of the offense has been explained to the

accused”). Where a defendant is represented by competent

counsel, the court usually may rely on that counsel’s assur-

ance that the defendant has been properly informed of the

nature and elements of the charge to which he is pleading

guilty.

Seeking to counter this natural inference, Stumpf argues,

in essence, that his choice to plead guilty to the aggra-

vated murder charge was so inconsistent with his denial of

having shot the victim that he could only have pleaded

guilty out of ignorance of the charge’s specific intent re-

8 BRADSHAW v. STUMPF

Opinion of the Court

quirement. But Stumpf ’s asserted inconsistency is illu-

sory. The aggravated murder charge’s intent element did

not require any showing that Stumpf had himself shot

Mrs. Stout. Rather, Ohio law considers aiders and abet-

tors equally in violation of the aggravated murder statute,

so long as the aiding and abetting is done with the specific

intent to cause death. See In re Washington, 81 Ohio St.

3d 337, 691 N. E. 2d 285 (1998); State v. Scott, 61 Ohio St.

2d 155, 165, 400 N. E. 2d 375, 382 (1980). As a result,

Stumpf ’s steadfast assertion that he had not shot Mrs.

Stout would not necessarily have precluded him from

admitting his specific intent under the statute.

That is particularly so given the other evidence in this

case. Stumpf and Wesley had gone to the Stouts’ home

together, carrying guns and intending to commit armed

robbery. Stumpf, by his own admission, shot Mr. Stout in

the head at close range. Taken together, these facts could

show that Wesley and Stumpf had together agreed to kill

both of the Stouts in order to leave no witnesses to the

crime. And that, in turn, could make both men guilty of

aggravated murder regardless of who actually killed Mrs.

Stout. See ibid., at 165, 400 N. E. 2d, at 382.

Stumpf also points to aspects of the plea hearing tran-

script which he says show that both he and his attorneys

were confused about the relevance and timing of defenses

Stumpf and his attorneys had planned to make. First, at

one point during the hearing, the presiding judge stated

that by pleading guilty Stumpf would waive his trial

rights and his right to testify in his own behalf. Stumpf ’s

attorney answered that Stumpf “was going to respond but

we have informed him that there is, after the plea, a hear-

ing or trial relative to the underlying facts so that he is of

the belief that there will be a presentation of evidence.”

App. 140. The presiding judge responded that “[o]f course

in the sentencing portion of this trial you do have those

rights to speak in your own behalf [and] to present evi-

Cite as: 545 U. S. ____ (2005) 9

Opinion of the Court

dence and testimony on your own behalf.” Ibid. A few

moments later, there was another exchange along similar

lines, after the judge asked Stumpf whether he was “in

fact guilty of” the aggravated murder charge and its capi-

tal specification:

“[DEFENSE COUNSEL]: . . . Your Honor, the defen-

dant has asked me to explain his answer. His answer

is yes. He will recite that with obviously his under-

standing of his right to present evidence at a later

time relative to his conduct, but he’ll respond to that.

“JUDGE HENDERSON: At no time am I implying

that the defendant will not have the right to present

evidence in [the] mitigation hearing . . . . And I’m go-

ing to ask that the defendant, himself, respond to the

question that I asked with that understanding that he

has the right to present evidence in mitigation. I’m

going to ask the defendant if he is in fact guilty of the

charge set forth in Count one, including specification

one . . . ?

“THE DEFENDANT: Yes, sir.” Id., at 142.

Reviewing this exchange, the Court of Appeals concluded

that Stumpf “obviously . . . was reiterating his desire to

challenge the [S]tate’s account of his actions”—that is, to

show that he did not intend to kill Mrs. Stout. 367 F. 3d,

at 607. But the desire to contest the State’s version of

events would not necessarily entail the desire to contest

the aggravated murder charge or any of its elements.

Rather, Stumpf ’s desire to put on evidence “relative to the

underlying facts” and “relative to his conduct” could

equally have meant that Stumpf was eager to make his

mitigation case—an interpretation bolstered by the attor-

ney’s and Stumpf ’s approving answers after the presiding

judge confirmed that the defense could put on evidence “in

mitigation” and in “the sentencing” phase. While

Stumpf ’s mitigation case was premised on the argument

10 BRADSHAW v. STUMPF

Opinion of the Court

that Stumpf had not shot Mrs. Stout, that was fully con-

sistent with his plea of guilty to aggravated murder. See

supra, at 7–8.

Finally, Stumpf, like the Court of Appeals, relies on the

perception that he obtained a bad bargain by his plea—

that the State’s dropping several non-murder charges and

two of the three capital murder specifications was a bad

tradeoff for Stumpf ’s guilty plea. But a plea’s validity may

not be collaterally attacked merely because the defendant

made what turned out, in retrospect, to be a poor deal.

See Brady, 397 U. S., at 757; Mabry v. Johnson, 467 U. S.

504, 508 (1984). Rather, the shortcomings of the deal

Stumpf obtained cast doubt on the validity of his plea only

if they show either that he made the unfavorable plea on

the constitutionally defective advice of counsel, see Tollett

v. Henderson, 411 U. S. 258, 267 (1973), or that he could not

have understood the terms of the bargain he and Ohio

agreed to. Though Stumpf did bring an independent claim

asserting ineffective assistance of counsel, that claim is

not before us in this case. And in evaluating the validity

of Stumpf ’s plea, we are reluctant to accord much weight

to his post hoc reevaluation of the wisdom of the bargain.

Stumpf pleaded guilty knowing that the State had copious

evidence against him, including the testimony of Mr.

Stout; the plea eliminated two of the three capital specifi-

cations the State could rely on in seeking the death pen-

alty; and the plea allowed Stumpf to assert his acceptance

of responsibility as an argument in mitigation. Under

these circumstances, the plea may well have been a know-

ing, voluntary, and intelligent reaction to a litigation

situation that was difficult, to say the least. The Court of

Appeals erred in concluding that Stumpf was uninformed

about the nature of the charge he pleaded guilty to, and

we reverse that portion of the judgment below.

Cite as: 545 U. S. ____ (2005) 11

Opinion of the Court

B

The Court of Appeals was also wrong to hold that prose-

cutorial inconsistencies between the Stumpf and Wesley

cases required voiding Stumpf ’s guilty plea. Stumpf ’s

assertions of inconsistency relate entirely to the prosecu-

tor’s arguments about which of the two men, Wesley or

Stumpf, shot Mrs. Stout. For the reasons given above, see

supra, at 7–8, the precise identity of the triggerman was

immaterial to Stumpf ’s conviction for aggravated murder.

Moreover, Stumpf has never provided an explanation of

how the prosecution’s postplea use of inconsistent argu-

ments could have affected the knowing, voluntary, and

intelligent nature of his plea.

The prosecutor’s use of allegedly inconsistent theories

may have a more direct effect on Stumpf ’s sentence, how-

ever, for it is at least arguable that the sentencing panel’s

conclusion about Stumpf ’s principal role in the offense was

material to its sentencing determination. The opinion

below leaves some ambiguity as to the overlap between

how the lower court resolved Stumpf ’s due process chal-

lenge to his conviction, and how it resolved Stumpf ’s

challenge to his sentence. It is not clear whether the

Court of Appeals would have concluded that Stumpf was

entitled to resentencing had the court not also considered

the conviction invalid. Likewise, the parties’ briefing to

this Court, and the question on which we granted certio-

rari, largely focused on the lower court’s determination

about Stumpf ’s conviction. See, e.g., Pet. for Cert. ii (re-

questing review of Stumpf ’s conviction, not sentence);

Reply Brief for Petitioner 3 (challenge to Court of Appeals’

decision is focused on issue of conviction); Brief for Re-

spondent 15, n. 3 (“arguments regarding Stumpf ’s death

sentence are not before this Court”). In these circum-

stances, it would be premature for this Court to resolve

the merits of Stumpf ’s sentencing claim, and we therefore

express no opinion on whether the prosecutor’s actions

12 BRADSHAW v. STUMPF

Opinion of the Court

amounted to a due process violation, or whether any such

violation would have been prejudicial. The Court of Ap-

peals should have the opportunity to consider, in the first

instance, the question of how Eastman’s testimony and

the prosecutor’s conduct in the Stumpf and Wesley cases

relate to Stumpf ’s death sentence in particular. Accord-

ingly, we vacate the portion of the judgment below relat-

ing to Stumpf ’s prosecutorial inconsistency claim, and we

remand the case for further proceedings consistent with

this opinion.

It is so ordered.

Cite as: 545 U. S. ____ (2005) 1

SOUTER, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–637

_________________

MARGARET BRADSHAW, WARDEN, PETITIONER v.

JOHN DAVID STUMPF

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 13, 2005]

JUSTICE SOUTER, joined by JUSTICE GINSBURG, concur-

ring.

I join the opinion of the Court and add this word to

explain the issue that I understand we are remanding for

further consideration. As the Court notes in its opinion,

although respondent John Stumpf challenged both his

conviction and his death sentence, his attack on the sen-

tence was not always distinct from the issue raised about

the conviction.

I understand Stumpf to claim that it violates the basic

due process standard, barring fundamentally unfair pro-

cedure, to allow his death sentence to stand in the after-

math of three positions taken by the State: (1) at Stumpf’s

sentencing hearing; (2) at the trial of Stumpf ’s codefen-

dant, Clyde Wesley; and (3) in response to Stumpf ’s mo-

tion to withdraw his guilty plea in light of the State’s

position at the Wesley trial. At the hearing on Stumpf ’s

sentence, the State argued that he was the triggerman,

and it urged consideration of that fact as a reason to im-

pose a death sentence. App. 186, 188–189. The trial court

found that Stumpf had pulled the trigger and did sentence

him to death, though it did not state that finding Stumpf

to be the shooter was dispositive in determining the sen-

tence. App. to Pet. for Cert. 219a. After the sentencing

proceeding was over, the State tried the codefendant,

2 BRADSHAW v. STUMPF

SOUTER, J., concurring

Wesley, and on the basis of testimony from a new witness

argued that Wesley was in fact the triggerman, App. 282,

and should be sentenced to death. The new witness was

apparently unconvincing to the jury, which in any event

was informed that Stumpf had already been sentenced to

death for the crime; the jury rejected the specification that

named Wesley as the triggerman, and it recommended a

sentence of life, not death. Stumpf then challenged his

death sentence (along with his conviction) on the basis of

the prosecution’s position in the Wesley case. In response,

the State did not repudiate the position it had taken in the

codefendant’s case, or explain that it had made a mistake

there. Instead, it merely dismissed the testimony of the

witness it had vouched for at Wesley’s trial, id., at 125,

and maintained that Stumpf ’s death sentence should

stand for some or all of the reasons it originally argued for

its imposition. At the end of the day, the State was on

record as maintaining that Stumpf and Wesley should

both be executed on the ground that each was the trigger-

man, when it was undisputed that only one of them could

have been.

Stumpf ’s claim as I understand it is not a challenge to

the evidentiary basis for arguing for the death penalty in

either case; nor is it a claim that the prosecution deliber-

ately deceived or attempted to deceive either trial court, as

in Mooney v. Holohan, 294 U. S. 103 (1935) (per curiam);

nor does it implicate the rule that inconsistent jury ver-

dicts may be enforced, United States v. Powell, 469 U. S.

57 (1984); Dunn v. United States, 284 U. S. 390 (1932). As

I see it, Stumpf ’s argument is simply that a death sen-

tence may not be allowed to stand when it was imposed in

response to a factual claim that the State necessarily

contradicted in subsequently arguing for a death sentence

in the case of a codefendant. Stumpf’s position was antici-

pated by JUSTICE STEVENS’s observation 10 years ago that

“serious questions are raised when the sovereign itself

Cite as: 545 U. S. ____ (2005) 3

SOUTER, J., concurring

takes inconsistent positions in two separate criminal

proceedings against two of its citizens,” and that “the

heightened need for reliability in capital cases only under-

scores the gravity of those questions . . . .” Jacobs v. Scott,

513 U. S. 1067, 1070 (1995) (citation and internal quota-

tion marks omitted). JUSTICE STEVENS’s statement in

turn echoed the more general one expressed by Justice

Sutherland in Berger v. United States, 295 U. S. 78, 88

(1935), that the State’s interest in winning some point in a

given case is transcended by its interest “that justice shall

be done.” Ultimately, Stumpf ’s argument appears to be

that sustaining a death sentence in circumstances like

those here results in a sentencing system that invites the

death penalty “to be . . . wantonly and . . . freakishly im-

posed.” Lewis v. Jeffers, 497 U. S. 764, 774 (1990) (quoting

Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion

of Stewart, Powell, and STEVENS, JJ.) (internal quotation

marks omitted)).

If a due process violation is found in the State’s mainte-

nance of such inconsistent positions, there will be reme-

dial questions. May the death sentence stand if the State

declines to repudiate its inconsistent position in the code-

fendant’s case? Would it be sufficient simply to reexamine

the original sentence and if so, which party should have

the burden of persuasion? If more would be required,

would a de novo sentencing hearing suffice?

Cite as: 545 U. S. ____ (2005) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–637

_________________

MARGARET BRADSHAW, WARDEN, PETITIONER v.

JOHN DAVID STUMPF

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 13, 2005]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

concurring.

I join the Court’s opinion. As the Court notes, the State

has not argued that Teague v. Lane, 489 U. S. 288 (1989),

forecloses Stumpf ’s claim that the prosecution’s presenta-

tion of inconsistent theories violated his right to due proc-

ess. Ante, at 6. With certain narrow exceptions, Teague

precludes federal courts from granting habeas petitioners

relief on the basis of “new” rules of constitutional law

established after their convictions become final. 489 U. S.,

at 310 (plurality opinion). This Court has never hinted,

much less held, that the Due Process Clause prevents a

State from prosecuting defendants based on inconsistent

theories. Moreover, it is “[a] threshold question in every

habeas case . . . whether the court is obligated to apply the

Teague rule to the defendant’s claim,” and “if the State

does argue that the defendant seeks the benefit of a new

rule of constitutional law, the court must apply Teague

before considering the merits of the claim.” Horn v.

Banks, 536 U. S. 266, 271 (2002) (per curiam) (internal

quotation marks omitted). The State also has not argued

that Stumpf procedurally defaulted his due process claim,

even though it appears that Stumpf never presented this

argument to the Ohio courts. Stumpf did not even raise

2 BRADSHAW v. STUMPF

THOMAS, J., concurring

the inconsistent-theories claim in his first federal habeas

filings. See App. to Pet. for Cert. 134a–140a. Instead, the

District Court raised the issue for Stumpf sua sponte, and

ordered supplemental briefing on the point. See App. 97–

98. The Court’s opinion does not preclude the State from

advancing either of these procedural defenses on remand

in support of Stumpf’s death sentence.

Moreover, I agree with the Court that “Stumpf has never

provided an explanation of how the prosecution’s postplea

use of inconsistent arguments could have affected the

knowing, voluntary, and intelligent nature of his plea.”

Ante, at 11. Similar reasoning applies to Stumpf ’s sen-

tence. Stumpf equally has never explained how the prose-

cution’s use of postsentence inconsistent arguments—

which were based on evidence unavailable until after

Stumpf was sentenced—could have affected the reliability

or procedural fairness of his death sentence. At most, the

evidence and purportedly inconsistent theory presented at

Wesley’s trial would constitute newly discovered evidence

casting doubt on the reliability of Stumpf ’s death sentence,

a sort of claim that our precedents and this Nation’s tradi-

tions have long foreclosed, see Herrera v. Collins, 506 U. S.

390, 408–417 (1993); id., at 427–428 (SCALIA, J., concur-

ring). The Bill of Rights guarantees vigorous adversarial

testing of guilt and innocence and conviction only by proof

beyond a reasonable doubt. These guarantees are more

than sufficient to deter the State from taking inconsistent

positions; a prosecutor who argues inconsistently risks

undermining his case, for opposing counsel will bring the

conflict to the factfinder’s attention. See ante, at 2

(SOUTER, J., concurring) (noting that Wesley’s jury was

informed that Stumpf had already been sentenced to

death for the crime).