Amicus Curiae Brief — Ayers v. Belmontes

pore

JUN 19 2006 |

No. 05-493 | vd

} OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

ROBERT AYERS, Acting Warden,

Petitioner,

vs.

FERNANDO BELMONTES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

Counsel of Record

CRYSTAL L. WAITKUS

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Attorneys for Amicus Curiae

-— Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. Does the instruction approved in Boyde v. California

place within the reach of the sentencing jury mitigating evi-

dence of past good behavior in prison?

2. Would a negative answer to Question | be a new rule

subject to the limitation of Teague v. Lane?

3. Should the second exception to Teague be declared per

se inapplicable to new rules which go only to the discretionary

choice of sentence within an authorized range and have no

bearing whatever on guilt or eligibility for the punishment?

(i)

TABLE OF CONTENTS

Questions presented ............... rere Aootiay Sewies i

MIND SS a.Wodn ockee -VbeeKiSde aus reks iv

PCTS heen cack csoavnnncebaauacba l

UGLY OF THOUS GING GOOR sg. cw cece ceececes 2

AI soa be Vad bp oen ee heehee eeu ys 5

EE sok Gicin add een & ened 4S PERN IO TA b eRe’ 7

I

Lockett v. Ohio is a failed and groundless decision; it should

be narrowly interpreted and not expanced ............ 7

is SB I hago oa eked ow ted bisa eeceyal 7

es ROE . 5. w sph wouiucleanedesss 12

Cy RS acd ob catdbdu b cae eeeheas chews 15

iI

The Court of Appeals seriously misinterpreted Boyde v.

EE Gh lsuit snes addeecaveeduvensbaseeries 16

Ill

So long as all mitigating evidence can be given effect,

existing law does not require that it be considered in every

EN 54.5% 5 5-bd Gk Meas haa eeeese tienes 18

IV

Rules affecting only the discretionary sentencing decision

should be categorically excluded from the

I PR IE oo ccc esc ecesicdistecenss 21

SIE F SOT ONC SL we tee rere nee LE 26

iV

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey, 530 U. S. 466, 147 L. Ed. 2d 435,

Sa es Gs EEE s bw elles osc cacekesneba veces 12

Atkins v. Virginia, 536 U. S. 304, 153 L. Ed. 2d 335,

Eas Ge Oo EE os acc dvs bis 64-0 chan ee nea 25

Barefoot v. Estelle, 463 U. S. 880, 77 L. Ed. 2d 1090,

Se i, ED oe” 2 wc bias erie ain eee 20

Beard v. Banks, 542 U. S. 406, 124 S.Ct. 2504,

fe re Pree 11, 22, 23

Belmontes v. Brown, 414 F. 3d 1094

SRE oc aték-< wacaww ne eeis 4, 5, 16, 17, 18, 20

Belmontes v. California, 488 U. S. 1034, 109 S. Ct. 848,

fe Sf, errr ere ee 4

Belmontes v. California, 492 U.S. 938, 110 S. Ct. 28,

. FS Ft, Fee er eo pe eee 4

Belmontes v. Stokes, 427 F. 3d 663 (CA9 2005) ..... 5, 16

Belmontes v. Woodford, 350 F. 3d 861 (CA9 2003)...... 5

Belmontes v. Woodford, 359 F. 3d 1079 (CA9 2004)..... 5

Benton v. Maryland, 395 U. S. 784, 23 L. Ed. 2d 707,

eis eles EN, ¢ bob .k o's done be bae bee eee 21

Bockting v. Bayer, 399 F. 3d 1010 (CA9 2005) ........ 22

Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316,

> 2 Ree: | 6 eee 3, 16, 17, 18, 20

Brown v. Belmontes, 544 U.S. 945, 125 S. Ct. 1697,

OS Ses Cs ae ED bbs bw Sad céd beveoeewes 5, 16

Brown v. Payton, 544 U.S. 133, 125 S. Ct. 1432,

Se a ET EEE ose ccsecceccesvcce 3, 16, 18

California v. Brown, 479 U. S. 538, 107 S. Ct. 837,

93 L. Ed. 2d 934 (1987) ....... eRedertehescceovene 3

Callins v. Collins, 510 U. S. 1141, 1148. Ct. 1127,

so. on trees theses baee 14, 15

Coker v. Georgia, 433 U. S. 584, 53 L. Ed. 2d 982, 7

es to. bh eue be bs eeeb eeece cee’ 25

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

ERIE Prey Se Per eer 25

Dred Scott v. Sandford, 60 U.S. (19 How.) 393,

i dare os Li eating ep wet 7

Eddings v. Oklahoma, 455 U. S. 104, 71 L. Ed. 2d 1,

UA aE e uv egheendcessees 14

Enmund v. Florida, 458 U. S. 782, 73 L. Ed. 2d 1140,

r,s oc ahwedeade beueee wre 8,25

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

a he ond Sipe Oe 14

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

re es wee ebaapes 21

Graham v. Collins, 506 U. S. 461, 113 S. Ct. 892, .

CT PD ep sdeiccctvecceees 15, 20, 2ike

Gray v. Netherland, 518 U. S. 152, 116 S. Ct. 2074,

econ eveeds devséeesvec 26

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

Eo cid cagiedeceovcoecon 7, 14, 25

Hitchcock v. Dugger, 481 U.S. 393, 95 L. Ed. 2d 347,

TY ee ee ee 10

vi

Johnson v. Texas, 509 U. §. 350, 125 L. Ed. 2d 290,

Pees ey ED + ou srewens oc eseuehetacs 18, 19

Jurek v. Texas, 428 U. S. 262, 49 L. Ed. 2d 929,

ks es Fe er eee 7, 10, 19

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

98 S. Ct. 2954 (1978) ............ 7, 8, 9, 10, 12, 13, 20

Mackey v. United States, 401 U. S. 667, 28 L. Ed. 2d 404,

SEE, IED oo cis ec cans hee as 21

McGautha v. California, 402 U.S. 183, 28 L. Ed. 2d 711,

ey OE 6G dels duu b> dad boek bon 13, 14, 15

Middleton v. McNeil, 541 U. S. 433, 158 L. Ed. 2d 701,

SE TG, I a og og ee eee 18

Mills v. Maryland, 486 U. S. 367, 100 L. Ed. 2d 384,

a Es cin bess so Wanws aa ee’ 11, 23

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

Se ae, SEN i wivecesceawebovaud newest 24

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

FOP BD. GE, BODO CESS cs iccccccvessteevnees 10,11, 19

People v. Belmontes, 45 Cal. 3d 744, 248 Cal. Rptr. 126,

FET PEED. cc edd necked bceeucnseevas 2,3,4

People v. Boyde, 40 “al. 3d 212, 758 P. 2d 25,

250 Cal. Rptr. 83, 758 P. 2d 25 (1988) .............. 4

People v. Brown, 45 Cal. 3d 1247, 248 Cal. Rptr. 817,

Se, nD dace geabudaserekwinacenks 4

People v. Payton, 3 Cal. 4th 1050, 13 Cal. Rptr. 2d 526,

as ae EY co nec'ccknas cunetas ba beeches 4

Proffitt v. Florida, 428 U. S. 242, 49 L. Ed. 2d 913,

Se es UTED 00s cccupesceevsccdnuends 7, 8,9

Vii

Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,

ee es ee ED bin co aU rehab bhSebsnstaedes 25

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

RS A ee ae hil 22

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

Sea Gab PED ncdedl'occkae koowsh chukes oi 22

Sawyer v. Smith, 497 U. S. 227, 110S. Ct. 2822,

See i OED 6 8c hdcp ba banvedebéuesecs 26

Sawyer v. Whitley, 505 U.S. 333, 120 L. Ed. 2d 269,

et Rs nd rs nb kd wees ae die wae 24

Schlup v. Delo, 513 U. S. 298, 130 L. Ed. 2d 808,

Serene tn a a tial 24

Schriro v. Summerlin, 542 U. S. 348, 124 S. Ct. 2519,

tie Me we cd oe pti che wen ets 23

Silverman v. United States, 365 U. S. 505, 81 S. Ct. 679,

a ee EE 3 os nds wha ied excee baetensws 15

Stogner v. California, 539 U. S. 607, 123 S. Ct. 2446,

156 L. Ed. 2d 544 (2003) .......... ited sueaaeans 13

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

2 © & —s ree 21, 22, 23, 24

Tichnell v. State, 287 Md. 695, 415 A. 2d 830 (1980) ... II

Tuilaepa v. California, 512 U. S. 967, 129 L. Ed. 2d 750,

Se Se: SE coh ocskesbenepevevenconee’s 25

Tyler v. Cain, 533 U. S. 656, 150 L. Ed. 2d 632,

Fae ep ED 4 6 0A b'0-64 cad tewnd oe den tude 23

United States v. Booker, 543 U. S. 220, 125 S. Ct. 738,

SP NEED 66 cen ckecsccensiedsenges 12

Vili

United States v. Morrison, 529 U. S. 598, 120 S. Ct. 1740,

EP ib Ch AED o'n.5 0 dR eb bnew se eicclans ce 13

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

Fee Gt SO GUE Sh cc decdccndceeeetesndeeee 14

Withrow v. Williams, 507 U. S. 680, 123 L. Ed. 2d 407,

Pee as Gb POE e's ko kn dedcnned ss cpésaensis 24

Woodson v. North Carolina, 428 U. S. 280,

49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) ............. 7

United States Constitution

ic ee a MRE on rcase weldah kha euee Cacetes ae

United States Statutes

Es Stn Sen ERIE 6 00S Sa ot Ge Ce Neh ee kee 22

as i en ID 5b 9 46 ddeA den ss cageeas 24

Act of Apr. 30, 1790, ch. 9, 1 Stat. 112 ............ 12, 13

State Statute

Sa EDEL =n ccctduce shies edosenuens 3

Miscellaneous

1 California Jury Instructions, Criminal

Gh CEE co as Gabon CKeC4 ade Raee bees eoukne 11

Antiterrorism and Effective Death Penalty Act of 1996,

SO DENOTE 0b Sn cbeuddkdvaweakdidecesees 16

California Dept. of Justice, Current Update of

Death Penalty Judgments (May 23, 2006) .......... 4,5

ix

J. Liebman, J. Fagan, & V. West, Broken System=Error

Rates in Capital Cases 1973-1995 (2000) ........... 1]

Sixty-Third Report of the Standing Committee on Rules of

Practice and Procedure, 5 Md. Reg. 1490 (1978)...... ll

IN THE

Supreme Court of the United States

ROBERT AYERS, Acting Warden,

Petitioner,

VS.

FERNANDO BELMONTES,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tion of the accused-into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

The Court of Appeals for the Ninth Circuit has once again

exceeded the scope of its limited role on habeas corpus to strike

down a death sentence by inventing a new restriction not

contained in this Court’s precedents. This overturning of a

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

t

validly imposed and affirmed sentence for a brutal and sense-

less murder is contrary to the interests CJLF was formed to

protect.

SUMMARY OF FACTS AND CASE

Twenty-five years ago, Steacy McConnell was 19 years old

and living in Victor, a small community in California’s Central

Valley. Defendant Fernando Belmontes and two other men,

Bobby Bolanos and Domingo Vasquez, decided to burglarize

Steacy’s residence and steal her stereo and other items. As the

group left Vasquez’s residence, Belmontes armed himself with

a steel dumbbell bar. See People v. Belmontes, 45 Cal. 3d 744,

760-761, 755 P. 2d 310, 315-316 (1988) (“Belmontes I>).

Steacy’s parents found her later that day, badly beaten but still

alive. She died shortly afterward. See id., at 760, 755 P. 2d, at

315.

Bolanos testified that defendant admitted killing Steacy;

“he had to ‘take out a witness’ because she was home.” /d., at

762, 755 P. 2d, at 316. Belmontes admitted participating in the

burglary and striking the initial blow knocking Steacy uncon-

scious, but he tried to blame the actual killing on Vasquez. :lis

story was inconsistent with the blood on his shoes and with the

‘victim’s defensive wounds. See id., at 762-765, 755 P. 2d, at

316-318. The jury rejected this story and expressly found that

Belmontes had personally killed Steacy and specifically

intended to kill her, in addition to finding the burglary-murder

special circumstance. See id., at 760, 791, 794, 755 P. 2d, at

315, 336, 338.

In addition to the horrific circumstances of the crime, the

case in aggravation included a prior conviction for accessory to

voluntary manslaughter and Belmontes’ aggravated assault on

his pregnant girlfriend. The latter incident included Belmontes’

acts of cutting the phone cord when she tried to call the police

and dragging her back into the apaitment when she tried to

escape. See id., at 796-797, 755 P. 2d, at 339.

The case in mitigation included bad childhood evidence and

Belmontes’ religious conversion and work while confined in

the California Youth Authority two years before the murder.

See id., at 797-798, 755 P. 2d, at 339-340.

The penalty phase instructions and argument, taken as a

whole, were more favorable to the defense than those in any of

this Court’s prior California penalty phase instruction cases.

Unlike California v. Brown, 479 U. S. 538, 539 (1987), the

jury was instructed not to be swayed by “ ‘mere sentiment,

conjecture, |] . . . , prejudice, public opinion, or public feel-

ing,’ ” with the word “sympathy” deleted. See Belmontes I, 45

Cal. 3d, at 800-801, 755 P. 2d, at 342. The jury was instructed

on the statutory circumstances, including the catch-all mitigat-

ing circumstance of California Penal Code § 190.3(k), “[a]ny

other evidence which extenuates the gravity of the crime.”

However, unlike Boyde v. California, 494 U. S. 370, 373-374

(1990), this instruction was supplemented with an instruction

that “ ‘the mitigating circumstances which I have read for your

consideration are given to you merely as examples of some of

the factors that you may take into account as reasons for

deciding not to impose a death sentence upon Mr. Belmon-

tes.’ Belmontes I, supra, at 801, 755 P. 2d, at 342 (emphasis

added by the court).? Unlike Brown v. Payton, 544 U. S. 133,

144 (2005), the prosecutor’s argument expressly confirmed that

the evidence at issue before this Court could be considered as

mitigating, although he properly argued it was not strong. See

Belmontes I, supra, at 801-802, 755 P. 2d, at 342-343. The

jury returned a verdict of death. See id., at 760, 755 P. 2d, at

315.

The California Supreme Court unanimously affirmed.

“Viewing the instructions and arguments as a whole, we

conclude there is ‘no legitimate basis’ for believing the jury

was misled regarding its sentencing responsibilities.” /d., at

«. Incontrast to Boyde, one might say that this case involves an “adorned”

factor (k) instruction. Cf. Boyde, 494 U. S., at 377.

802, 755 P. 2d, at 343 This unanimity further indicates that the

instructions and arguments in this case were more clearly

proper than those in the similar California cases this Court has

reviewed to date. Cf. People v. Brown, 45 Cal. 3d 1247, 756

P. 2d 204 (1988) (on remand) (5-2); People v. Payton, 3

Cal. 4th 1050, 839 P. 2d 1035 (1992) (5-2); People v. Boyde,

46 Cal. 3d 212, 758 P. 2d 25 (1988) (4-3).

The state court also rejected Belmontes’ claim that the

penalty was disproportionate:

“Defendant was convicted on extremely strong evidence

that he committed an intentional murder of extraordinary

brutality. He bludgeoned McConnell to death with an iron

dumbbell bar; the force of the 15 to 20 some-odd blows

leaving her with gaping wounds and a cracked skull. Her

defensive wounds plainly evidenced a desperate struggle

for life at defendant’s hands. The murder occurred in the

course of a calculated plan to burglarize the victim’s home,

to which defendant had gained entry on false pretenses.

After the murder, defendant and his accomplices callously

fenced the victim’s stereo components for $100—purchas-

ing beer with a portion of the proceeds.” Belmontes 1, 45

Cal. 3d, at 819, 755 P. 2d, at 354.

This Court denied certiorari on January 17, 1989. See

Belmontes v. California, 488 U. S. 1034. Defendant petitioned

for rehearing, which the Court denied on August 30, 1989. See

Belmontes v. California, 492 U.S. 938.

On March 30, 1989, Belmontes filed a petition for writ of

habeas corpus in the San Joaquin County Superior Court, the

trial court. The petition was denied on April 7, 1989. See

California Dept. of Justice, Current Update of Death Penalty

Judgments (May 23, 2006) (periodic report filed with U. S.

District Court, Northern Dist. of Cal.) (“Death Penalty Judg-

ments”). On May 25, 1989, Belmontes filed a federal habeas

petition, which the District Court held in abeyance for further

exhaustion of state remedies. See ibid.; Belmontes v. Brown,

414 F. 3d 1094, 1111 (CA9 2005) (“Belmontes V’). Belmontes

filed a habeas petition with the California Supreme Court on

September 18, 1989, which the court denied on November 18,

1992. See Death Penalty Judgments. State remedies were thus

exhausted in this case 14 years ago.

~The District Court then took eight and a half years to decide

the case, denying relief on May 15, 2001. Belmontes appealed,

and a divided panel of the Court of Appeals granted relief. See

Belmontes v. Woodford, 350 F. 3d 861 (CA9 2003) (“Belmon-

tes IT’). The full court denied rehearing en banc over the

dissent of eight judges. See Belmontes v. Woodford, 359 F.3d

1079 (CA9 2004) (“Belmontes IIT’). The warden petitioned for

certiorari, and this Court vacated the decision and remanded for

consideration in light of Brown v. Payton, supra. Brown v.

Belmontes, 544 U. S. 945 (2005) (“Belmontes IV’). On

remand, the Court of Appeals was again divided, and the

majority “conclude[{d] that Payton does not affect our holding

in the present case.” Belmontes V, 414 F. 3d, at 1101.

The full Ninth Circuit denied rehearing en banc, again over

a vigorous dissent by seven judges. See Belmontes v. Stokes,

427 F. 3d 663 (2005) (Belmontes VI). This Court granted

certiorari on May 1, 2006.

SUMMARY OF ARGUMENT

The Court of Appeals’ decision in this case is an attempt to

further expand the already bloated rule of Lockett v. Ohio.

Lockett is a failed and groundless decision. It failed catastroph-

ically in its central purpose to provide clear guidance and end

the uncertainty regarding federal constitutional limitations on

state capital sentencing procedure. It was groundless because_

the limitation it invented had no basis in the text or history of

the Constitution or in the collective judgments of state legisla-

tures. Lockett need not be overruled, but it should be frozen at

its present boundaries, narrowly construed.

The Court of Appeals majority in the present case seriously

misinterpreted Boyde v. California. It limited Boyde’s ap-

proval of the then-standard California catch-all instruction to

evidence having a psychologically causal connection with the

commission of the crime. Boyde contains no such limitation.

It held that the instruction was sufficient to place all character

and background evidence within the sentencer’s reach.

Under Johnson v. Texas, capital sentencers are not required

to consider mitigating evidence in every possible way. Johnson

held that if mitigating evidence was within the sentencer’s

reach in answering a question on future dangerousness, it need

not be considered for other mitigating implications the evi-

dence might have. The present case is the mirror image of

Johnson. Evidence of good behavior in a prior incarceration

could be considered extenuating in itself under the instruction,

and there is no constitutional requirement that it also be

considered for its implications on future dangerousness in

prison.

The Court of Appeals erroneously created a new rule on

habeas corpus. Graham v. Collins establishes that rules of this

type would not qualify for the second exception to the

nonretroactivity rule of Teague v. Lane. More fundamentally,

rules which govern the procedure for a discretionary sentencing

choice within the legal range for the offense of conviction

should be held categorically to never qualify for that exception.

By definition, they do not go to questions of actual innocence

or even to “innocence of the penalty” within the meaning of

Sawyer v. Whitley. A great amount of pointless litigation and

delay could be avoided by declaring a bright-line rule on this

issue.

ARGUMENT

I. Lockett v. Ohio is a failed and groundless decision; it

should be narrowly interpreted and not expanded.

The essence of the Court of Appeals’ decision in this case

is yet another attempt to expand the boundaries of the rule of

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion).

It is useful at the threshold to examine the Lockett decision, its

intended effect, and its actual effect.

A. A Failed Decision.

The Lockett plurality recognized what was needed in capital

sentencing law at that point. “The signals from this Court have

not... always been easy to decipher. The States now deserve

the clearest guidance that the Court can provide; we have an

obligation to reconcile previously differing views in order to

provide that guidance.” /d., at 602. Not since Dred Scott v.

Sandford, 60 U.S. (19 How.) 393 (1857) has any decision of

this Court failed so completely in its central purpose. Instead

of reconciling conflict, Lockett created new inconsistencies in

previously settled law. As a result, instead of heralding an era

of clarity and stability, Lockett opened the door to decades of

confusion and chaos.

The case actually before the Court in Lockett was not

difficult. The Ohio statute was essentially a mandatory death

sentence law. Once an aggravating circumstance was found,

death was the required sentence unless one of three unusual

mitigating facts was also found: participation of the victim,

duress, or mental illness. See Lockett, 438 U.S., at 607. This

was not a “guided discretion” statute of the type upheld in

Gregg v. Georgia, 428 U. S. 153 (1976), Proffitt v. Florida,

428 U.S. 242 (1976), or Jurek v. Texas, 428 U.S. 262 (1976).

It was a mandatory statute tempered only by exclusion of a

handful of cases. As such, only a very minor extension of

Woodson v. North Carolina, 428 U. S. 280 (1976) would have

been necessary to strike it down. Alternatively, Lockett’s

sentence might have been set aside on the ground that she was

a minor accomplice in a felony-murder case with no intent to

kill, see 438 U. S., at 589-591 (plurality opinion); id., at 628

(White, J., concurring in part and dissenting in part), a rule

subsequently adopted in Enmund v. Florida, 458 U. S. 782,

801 (1982). Instead of these limited and sensible approaches,

the Lockett plurality handed down an edict of breathtaking

sweep. “(T]he Eighth and Fourteenth Amendments require that

the sentencer . . . not be precluded from considering, as a

mitigating factor, any aspect of the defendant’s character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.”

Lockett, supra, at 604 (emphasis added and deleted, footnote

omitted).

Given an extreme interpretation (as it subsequently was),

this pronouncement was contrary to both Proffitt and Jurek.

Lockett created confusion because it failed to specify just how

far it was going in disapproving sentencing systems that the

Court had previously approved.

Proffitt reyected the main attack on Florida’s system, that it

was unconstitutional “because it allows discretion to be

exercised at each stage of a criminal proceeding... .” 428

U. S., at 254 (lead opinion) (emphasis added). Proffitt then

went on to review the essential features of the Florida system

and approve the system so described. The Florida statute

specified the mitigating factors. /d., at 249, n. 6. There was no

catch-all factor.

“On their face these procedures . . . appear to meet the

constitutional deficiencies identified in Furman. The

sentencing authority in Florida, the trial judge, is directed

to weigh eight aggravating factors against seven mitigating

factors to determine whether the death penalty shall be

imposed.” /d., at 251 (emphasis added).

If that were not clear enough, the Proffitt Court modified its

quotation of the Florida statute to insert “statutory” before

“mitigating.” /d., at 250. Thus, the Proffitt Court understood

the Florida system to weigh on the mitigating side a specified

list of enumerated factors. If the lack of a “catch-all” factor

was a constitutional defect, it was apparent on the face of the

statute. Yet Proffitt did not see it as a defect. The Lockett

plurality notes that the Proffitt lead opinion made a tangential

reference to the absence of explicitly limiting language in the

state statute on mitigating factors. See Lockett, 438 U. S., at

606, and n. 15. However, that reference was made in connec-

tion with discussion of another point, whether a death sentence

could rest entirely on nonstatutory aggravating factors. See

Proffitt, 428 U. S., at 250, n. 8; Lockett, supra, at 629-630

(Rehnquist, J., dissenting in part). It certainly cannot support

the proposition that Proffitt based its approval of the Florida

system on any assumption that the sentencer was directed to

consider nonstatutory mitigating factors.

Jurek’s approval of the Texas system is even more strongly

contrary to any such requirement. The Texas system called for

the jury to answer specific questions, one of which was on

future dangerousness. See Lockett, 438 U. S., at 607. Al-

though the Texas Court of Criminal Appeals had said it would

“permit the sentencer to consider ‘whatever mitigating circum-

stances’ the defendant might be able to show,” ibid. (quoting

Jurek, 428 U. S., at 272-273), the state court certainly had not

said the jury would be instructed to base its answer on anything

other than the statutory questions, nor could the statute be

reasonably construed to allow it to do so.

The Lockett plurality attempted to reconcile its edict with

Proffitt and Jurek, saying, “None of the statutes we sustained

in Gregg and the companion cases clearly operated at that time

to prevent the sentencer from considering any aspect of the

defendant’s character and record or any circumstances of his

offense as an independently mitigating factor.” /hid. (emphasis

added). There is a world of difference between not clearly

preventing something and clearly requiring the same thing. It

was crystal clear that neither the Florida statute nor the Texas

10

statute previously approved by the Court affirmatively required

the sentencer to consider any mitigating factors other than those

listed in the statute, and Lockett did not expressly resolve

whether such affirmative action was required.

The looming conflict between the Lockett plurality’s rule

and the precedents was not lost on the dissenters. Justice

White called it an “about-face.” /d., at 622. Justice Rehnquist

said it was “indisputably clear” that the opinion was “scarcely

faithful to what has been written before.” /d., at 630-631.

Even so, it would be many years before the full extent of the

damage was known. Some states that had written their statutes

and standard instructions in reliance on this Court’s approval

in Proffitt and Jurek continued to rely on those precedents in

the absence of an honest overruling, misled by Lockett’s

pretense of consistency.

Less than a month after Proffitt, James Hitchcock strangled

and murdered 13-year-old Cynthia Driggers. Hitchcock had

molested her, and he killed her when she said she would tell.

See Hitchcock v. Dugger, 481 U.S. 393, 394 (1987). He was

tried for that crime under the eminently reasonable belief that

Florida law limited mitigating circumstances to the statutory

list and that Proffitt had upheld that system. Hitchcock's

sentence was overturned because his trial judge had committed

the “error” of taking Proffitt at its word. This was contrary to

Lockett, this Court held, see id., at 399, in an opinion that

curiously omits any mention of Proffitt.

The situation in Texas was even worse. Although Florida

changed its statute and instructions on mitigating circumstances

after Lockett, see id., at 396-397, Texas continued to rely on

Jurek. That case clearly held that the Texas system passed

constitutional muster by allowing the defendant to “bring to the

jury’s attention whatever mitigating circumstances he may be

able to show,” 428 U. S., at 272, even though the jury instruc-

tions only asked about future dangerousness. See id., at 272-

274. In 1989, Penry v. Lynaugh, 492 U. S. 302, 328 decided

that the instructions Jurek had found sufficient were not

sufficient under Lockett. The dissent noted that the majority’s

holding “flatly contradicts [Jurek’s] analysis.” /d., at 355

(opinion of Scalia, J.).

The rapacious growth of the Lockett rule has repeatedly

frustrated the best efforts of state legislatures and judiciaries to

craft capital sentencing instructions. Maryland enacted a post-

Gregg statute in 1978. See Tichnell v. State, 287 Md. 695,

720, 415 A. 2d 830, 843 (1980). A committee of the state bar

then crafted an instruction to meet the requirements of the

statute and of this Court’s precedents, including Lockett, as

they were then understood. Sixty-Third Report of the Standing

Committee on Rules of Practice and Procedure, 5 Md. Reg.

1490-1493 (1978). The state’s highest court reviewed and

approved the instruction and wrote it into the rules of court.

See Tichnell, supra, at 727; 415 A. 2d, at 847; Mills v. Mary-

land, 486 U. S. 367, 384-389 (1988). It was used for a decade

in every capital case until a narrow majority of this Court

decided it was contrary to Lockett. See Mills, supra, at 384.

The Mills rule was not dictated by Lockett, however. It was an

expansion of Lockett. See Beard v. Banks, 542 U.S. 406, 416

(2004).

Similarly, the instruction at issue in the present case was

also a standard state jury instruction, believed by experts in the

field to conform to all applicable requirements at the time it

was drafted. See | California Jury Instructions, Criminal,

No. 8.84.1, pp. 335-336 (4th ed. 1979) (“CALJIC 4th”). The

Court of Appeals is mistaken when it says CALJIC is a product

of the legislature. See Be/montes V, 414 F. 3d, at 1134, n. 18.

These instructions were the product of a committee of judges,

prosecutors, and defense lawyers. See CALJIC 4th, at v.

A controversial study by opponents of the death penalty

claimed that 68% of death penalty cases from 1973 to 1995

were infected with “serious error,” defined as any defect that

resulted in the sentence being reversed. See J. Liebman,

J. Fagan, & V. West, Broken System: Error Rates in Capital

Cases 1973-1995, text accompanying notes 40 and 130 (2000).

12

Yet it is painfully evident from cases such as Hitchcock, Penry,

and Mills that a great many of these supposedly serious errors

were not errors at all under the law in effect at the time of the

trial. They were standard instructions genuinely and reasonably

believed to conform to this Court’s precedents, and they only

became “error” long after trial as the Lockett cancer continued

to metastasize. The serious error here is that well-deserved

sentences of brutal murderers are repeatedly overturned despite

their compliance with then-existing precedent.

The bitter irony is that all this chaos, confusion, and

injustice has flowed from a decision that acknowledged “an

obligation to reconcile previously differing views in order to

provide [the clearest} guidance.” Lockett, 438 U. S., at 602.

The present case illustrates that this obligation is unpaid and

long past due. Lockett has been a total failure.

B. A Groundless Decision.

Turmoil, confusion, and the unsettling of settled expecta-

tions are sometimes a price that must be paid when a constitu-

tional principle has fallen into neglect and must be restored to

its original understanding. That judgment appears to be

implicit in Apprendi v. New Jersey, 530 U.S. 466 (2000) and

its progeny. That is not remotely the case with Lockett v. Ohio.

The sweeping mandate of that case was completely rootless.

Lockett found its rule to be required by the Eighth Amend-

ment. See 438 U. S., at 604. The starting point for determin-

ing what any provision of the Constitution requires is to ask

what it was understood to require when it was adopted. One of

the best indications of what sentencing practices were consid-

ered constitutional by the Framers is the brief criminal code

enacted by the First Congress, Act of Apr. 30, 1790, ch. 9, |

Stat. 112 (°1790 Act”). See, e.g, United States v. Booker, 543

U. S. 220, 329 (2005) (Breyer, J., dissenting in part). The

drafters of this act were clearly aware of constitutional limits.

The treason section closely follows the constitutional limit.

Compare 1790 Act, §1, with U. S. Const., Art. Ill, §3.

13

Common law crimes are only made federal within federal

enclaves and on the high seas. Compare 1790 Act, § 3 (mur-

der) and id., § 9 (robbery on the high seas), with United States

v. Morrison, 529 U.S. 598, 601-602 (2000) (gender-motivated

violence as a federal offense).

In regard to the discretion of the sentencer, it is evident that

the First Congress believed the matter was entirely within

legislative control. Traitors and murderers “shall suffer death,”

1790 Act, §§ 1, 3, and benefit of clergy was prohibited. See id.,

§31. This might be considered the first federal “truth in

sentencing” act. Death means death. Conversely, the First

Congress felt authorized to grant unlimited discretion where it

thought that advisable. Persons convicted of bribery “shall be

fined and imprisoned at the discretion of the court... .” /d.,

§ 21.

Lockett also found its command to be based on the Four-

teenth Amendment, see 438 U. S., at 604, presumably on the

theory that it incorporated the Eighth. Whatever the theory,

Lockett’s requirement of unlimited mitigation could not

reasonably be considered to have been constitutionally required

during Reconstruction. The transition from mandatory to

discretionary capital sentencing was under way at that time, but

it was by no means complete. Congress did not follow the

trend until three decades after it proposed the Fourteenth

Amendment. See McGautha v. California, 402 U.S. 183, 199-

200 (1971).

Original understanding can be the end point as well as the

starting point for some constitutional provisions, see, e.g.,

Stogner v. California, 539 U.S. 607, 61 1-612 (2003) (contem-

porary understanding of Ex Post Facto Clause), but this

position would be hard to defend for the Cruel and Unusual

Punishments Clause. A modern reenactment of the original

penalty of “thirty-nine stripes” for falsifying court records, see

1790 Act, § 15, would doubtless be swiftly struck down. A

punishment which was not considered cruel and was not at all

unusual in 1789 may become both in later years, and hence

14

unconstitutional, if it is rejected universally or nearly so by

society. See Walton v. Arizona, 497 U. S. 639, 670 (1990)

(Scalia, J., concurring in part and concurring in the judgment)

(noting conjunctive “unusual” requirement).

One might argue that the Lockett rule was made a constitu-

tional requirement by the universal shift to complete discretion

in the late nineteenth through mid-twentieth century, see

McGautha, 402 U.S., at 199-201, but this argument runs into

a brick wall in Furman v. Georgia, 408 U.S. 238 (1972) (per

curiam). Furman held that the unlimited discretion statutes

then in effect throughout the country were forbidden by the

Eighth Amendment. The same provision of the Constitution

cannot simultaneously forbid a practice and require the same

practice, unless the goal is to intentionally set up an unresolv-

able paradox. See Callins v. Collins, 510 U. S. 1141, 1151-

1152, 1159 (1994) (Blackmun, J., dissenting from denial of

certiorari) (proposing judicial abolition of capital punishment

due to conflicting court-created rules); cf. id., at 1142 (Scalia,

J., concurring) (concluding instead that if two rules conflict,

one must be wrong).

The post-Furman statutes which were in effect at the time

Lockett was decided provide no support for any contention that

limitations on mitigation were “unusual” in the constitutional

sense. Four of the five statutes examined in the Gregg cases

limited mitigation in varying degrees. Georgia stood alone in

a clear statutory endorsement of “anything goes” mitigation.

See Gregg, 428 U. S., at 197; cf. supra, at 8-9 (Florida and

Texas systems).

With no basis in original understanding, with an argument

based on pre-Furman practice blocked by Furman itself, and

with no basis in post-Furman statutes, Lockett stands as a

naked judicial fiat. The rule proposed by the Lockett plurality

and accepted by a majority in Eddings v. Oklahoma, 455 U.S.

104 (1982) was a legislative act of policy preference, not a

principled exercise of the judicial power.

15

C. Tinkering.

“I no longer shall tinker with the machinery of death,”

Justice Blackmun declared in Callins, 510 U. S., at 1145

(opinion dissenting from denial of certiorari). Cessation of

tinkering is an excellent idea, particularly when the tinkerer

never had a license to tinker in the first place.

“But the Federal Constitution, which marks the limits of

our authority in these cases, does not guarantee trial

procedures that are the best of all worlds, or that ac ord

with the most enlightened ideas of students of the infant

science of criminology, or even those that measure up to

the individual predilections of members of this Court.”

McGautha, 402 U. S., at 221 (emphasis added).

Amicus CJLF does not suggest that Lockett be overruled.

Considerations of stare decisis weigh heavily in such a

decision, and in any event that step should not be taken in a

case which does not require it. We suggest that the Court

“enforce a permanent truce between Eddings and Furman.”

Graham v. Collins, 506 U. S. 461, 498 (1993) (Thomas, J..

concurring). A practice clearly prohibited by the Lockett-

Eddings \ine can continue to be prohibited. The maintenance

of these rules in their clearly established scope will cause little

additional damage, because the states have already incorporated

them into their statutes and standard jury instructions. How-

ever, Lockett should be strictly confined to its existing bound-

aries and not extended any further, with any doubts about its

scope resolved in favor of the states’ traditional constitutional

authority to decide sentencing policy. There is no need in this

case to overrule Lockett, but the Court should decline to extend

it, “by even a fraction of an inch.” Cf. Silverman v. United

States, 365 U.S. 505, 512 (1961).

16

II. The Court of Appeals seriously misinterpreted

Boyde v. California.

Six days after this Court decided Brown v. Payton, 544

U. S. 133 (2005), it vacated the Court of Appeals’ prior

decision in the present case and remanded for further consider-

ation in light of Payton. See Brown v. Belmontes, 544 U. S.

945 (2005). While the holding of Payton is not on point

because Payton is an AEDPA’ case, see 544 U. S., at 147; id.,

at 148-149 (Breyer, J., concurring), the obvious implication

was that Payton’s discussion of Boyde v. California, 494 U. S.

370 (1990) clarified the meaning of Boyde, requiring a reexam-

ination of the premises of the Court of Appeals’ opinion in this

case.

The panel majority was oblivious to the hint. See Be/mon-

tes v. Brown, 414 F. 3d 1094, 1101 (CA9 2005) (“Belmontes

V”’). The dissenters were not. See id., at 1140-1141 (O’Scann-

lin, J., dissenting); Belmontes v. Stokes, 427 F. 3d 663, 665

(CA9 2005) (Callahan, J., dissenting from denial of rehearing

en banc). No hint should have been needed. The error was

apparent from Boyde on its face, even before Payton.

The Court of Appeals majority read Boyde as limiting its

approval of California’s prior catch-all instruction to evidence

with a psychologically causal connection to the commission of

the crime.

“The Court held that, because the trial judge instructed the

jury that it ‘shall consider all of the evidence which has

been received during any part of the trial of this case,’ there

was no reasonable likelihood that the jury believed that

factor (k) prevented it from considering the background and

character evidence introduced by Boyde and its bearing on

Boyde’s commission of the crime. /d., at 383 (emphasis in

original). In other words, the Supreme Court held that the

3. Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214

(1996).

17

unadorned factor (k), at least when accompanied by an

appropriate clarifying instruction, was constitutional as

applied to mitigating evidence relating to the defendant’s

psychological make-up and history, which practically, if not

legally, bore upon his commission of the crime and was

offered for the purpose of reducing his culpability for the

offense.” Belmontes V, 414 F. 3d, at 1132 (footnote

omitted).

This is an indefensible reading of the Boyde opinion. The

phrase “and its bearing on Boyde’s commission of the crime”

is neither a quote nor a paraphrase of anything in Boyde.

Instead, the cited page says that, when considered with other

factors “not associated with the crime itself,” it is “improbable

that jurors would arrive at an interpretation [of factor (k)] that

precludes consideration of all non-crime-related evidence.”

Boyde, 494 U. S., at 383 (emphasis added). In addition, Boyde

notes the jury would also have understood that it could consider

Boyde’s artistic ability, “because it showed that Boyde’s

criminal conduct was an aberration from otherwise good

character.” /d., at 383, n. 5. This item of evidence has no

connection with any conceivable theory of psychological

causation for the crime, yet Boyde holds it was within the scope

of this so-called “unadorned factor (k)” instruction.

If there were any doubt that Boyde includes all background

and character evidence, not just evidence with a connection to

the crime, the doubt was eliminated in Payton.

“As to the text of factor (k), Boyde established that it does

not limit the jury’s consideration of extenuating circum-

stances solely to circumstances of the crime. See 494

U. S., at 382. In so holding, we expressly rejected the

Suggestion that factor (k) precluded the jury from consider-

ing evidence pertaining to a defendant’s background and

character because those circumstances did not concern the

crime itself. Boyde instead found that factor (k), by its

terms, directed the jury to consider any other circumstance

that might excuse the crime, including factors related to a

18

defendant's background and character.” Payton, 544 U. S..,

at 141-142.

Justice Breyer found two plausible distinctions in Payton

from Boyde that might have prevailed in a non-AEDPA case:

the pre-crime/post-crime distinction and the prosecutor's

misleading argument. See id., at 148-149 (concurring opinion).

Neither of these distinctions is present in this case. See supra,

at 3. Factually, this case is much more like Boyde than Payton.

The “unadorned” instruction in Boyde was sufficient to inform

the jury of the relevance of “precrime background and charac-

ter,” id., at 148, and the “adorned” instruction and clarifying

argument in this case did so even more clearly. See also

Middleton v. McNeil, 541 U.S. 433, 438 (2004) (per curiam)

(Boyde, ambiguous instructions, and clarifying arguments).

III. So long as all mitigating evidence can be given effect,

existing law does not require that it be considered in

every possible way.

After discussing the evidence in Boyde v. California, 494

U. S. 370 (1990), the Court of Appeals majority opinion says,

“The same type of evidence, however, can serve an alternative

forward-looking purpose, mitigating in a manner wholly

unrelated to a petitioner’s culpability for the crime he commit-

ted.” Belmontes V, 414 F. 3d, at 1132. The implication that

the defendant has a constitutional right to have his evidence

considered for every purpose he wishes is flatly contrary to

Johnson v. Texas, 509 U.S. 350 (1993).

In a sense, this case is a mirror image of Johnson, and the

Court of Appeals majority opinion is a reflection of the dissent.

Under the Texas system then in effect, the jury could consider

mitigating circumstances only in the context of answering

specific questions, one of which concerned future dangerous-

ness. See id., at 362-363.

19

The Texas Court of Criminal Appeals held that the jury

could give mitigating effect to Johnson’s youth through the

dangerousness special issue. See id., at 359. In this Court, the

dissenters did not challenge that conclusion, but they contended

that it was not enough. Future dangerousness and culpability

are not the same thing, although they may be supported or

refuted by the same evidence. See id., at 376 (O’Connor, J.,

dissenting). Further, the dissent read Eddings v. Oklahoma,

455 U.S. 104 (1982) as addressing a “constitutional require-

ment that a sentencer be allowed to give full consideration and

full effect to mitigating circumstances... .” Johnson, supra,

at 381 (emphasis in original). If this statement were found in

an opinion of the Court issued prior to the day Belmontes’

judgment became final, he would have a stronger case. The

dissent, however, is not the law. It was not the day it was

written, it is not today, and it was not in 1989.

The Court in Johnson held that accepting this argument

would overrule Jurek v. Texas, 428 U. S. 262 (1976) and alter

(i.e., extend) the rule of Lockett and Eddings. See 509 U. S., at

372. “Instead of requiring that a jury be able to consider in

some manner all of a defendant’s relevant mitigating evidence,

the rule would require that a jury be able to give effect to

mitigating evidence in every conceivable manner in which the

evidence might be relevant.” /bid. “As long as the mitigating

evidence is within ‘the effective reach of the sentencer,’ the

requirements of the Eighth Amendment are satisfied.” /d., at

368 (quoting Graham vy. Collins, 506 U. S. 467, 475 (1993)).

Assuming for the sake of argument that California’s catch-

all factor does not include future nondangerousness as such,

that would only be a constitutional defect if constitutionally

relevant mitigating evidence were thereby placed beyond the

reach of the sentencer. See Penry v. Lynaugh, 492 U. S. 302.

323 (1989) (evidence of retardation relevant only as aggravat-

ing, not mitigating, under Texas special issues); Johnson, 509

U. S., at 364-365 (discussing Penry).

20

The best predictor of future violence is past violence, see

Barefoot v. Estelle, 463 U. S. 880, 922-923, n. 5 (1983)

(Blackmun, J., dissenting), and the best evidence defendants

can produce to show nondangerousness is a lack of a record of

other serious crimes. They can also show past good behavior.

Yet this evidence is precisely the “character or record” evi-

dence that Lockett, 438 U. S., at 604, held the sentencer must

consider and that Boyde held the California instruction does

include. Whether the Constitution requires a sentencer to

consider evidence of nondangerousness when it relates to

neither character nor record can be decided in a case that

presents that question.* No such evidence is involved in this

case.

According to the Court of Appeals majority opinion, the

most important part of Belmontes’ case in mitigation was his

conduct while incarcerated in the California Youth Authority.

See Belmontes V, 414 F. 3d, at 1134. This included his work

on a fire crew, his leadership and responsibility on that crew,

and his participation in a religious program. See id., at 1108.

This is background and character evidence. This is the kind of

evidence that Boyde determined was within the reach of the

sentencer as a “ ‘circumstance which extenuates the gravity of

the crime... .’ ” See 494 U. S., at 381 (quoting instruction).

When mitigating evidence supports more than one argu-

ment against a death sentence, Johnson held that allowing the

sentencer to give effect to that evidence through one vehicle is

sufficient. It also held that a contrary rule would require

overruling Jurek. Graham v. Collins had previously held that

such a rule would be a new rule as of 1993. See 506 U. S., at

4. It would be exceedingly odd to hold that the Constitution requires

“expert” prediction evidence in this area, a form of evidence so

notoriously unreliable that three Justices of this Court concluded the

Constitution forbids it. See Barefoot, 463 U.S., at 923 (Blackmun, J.,

dissenting).

21

477. A fortiori, such a rule would have been new when

Belmontes’ sentence became final four years earlier.

IV. Rules affecting only the discretionary sentencing

decision should be categorically excluded from the

second Teague exception.

Any claim that the extension of existing law made by the

Court of Appeals in this case qualifies for the “watershed rule”

exception to Teague v. Lane, 489 U. S. 288 (1989) could be

dismissed with little more than a citation to Graham v. Collins,

506 U. S. 461, 477-478 (1993). However, an enormous

amount of pointless litigation could be precluded by drawing a

brighter line.

In his concurring and dissenting opinion in Mackey v.

United States, 401 U.S. 667 (1971), Justice Harlan suggested

an exception “for claims of nonobservance of those procedures

that... are ‘implicit in the concept of ordered liberty.’ ” /d.,

at 693 (quoting Palko v. Connecticut, 302 U. S. 319, 325

(1937)). These are the very basic rules of fundamental fairness

that were considered part of the Fourteenth Amendment’s Due

Process Clause even before the incorporation doctrine.’ The

purpose of this exception appears to be to explain Justice

Harlan’s continued concurrence in granting habeas relief to

prisoners with claims under Gideon v. Wainwright, 372 U. S.

335 (1963), which was then only eight years old. See Mackey,

supra, at 694.

While Teague adopted Justice Harlan’s proposal in most

other respects, it raised the bar for this exception even higher.

To qualify for the second exception, a new rule would have to

meet both the Palko test of fundamentalness and Justice

5. The holding of Pa/ko was that the Fifth Amendment’s Double Jeopardy

Clause was not such a rule. By the time of Mackey, the Double

Jeopardy Clause was considered “incorporated,” and Palko had been

overruled. See Benton v. Maryland, 395 U.S. 784, 796 (1969).

22

Harlan’s original proposal of “ ‘rules which significantly

improve the pre-existing fact-finding procedures.’ ” Teague,

489 U. S., at 312 (quoting Desist v. United States, 394 U. S.

244, 262 (1969) (dissenting opinion)). Such a high standard

raised the obvious question of whether any such rules remained

to be made over a quarter century after Gideon. The Teague

plurality answered cautiously, “we believe it unlikely that many

such components of basic due process have yet to emerge.” /d.,

at 313 (emphasis added).

In the 17 years since Teague, this Court has not found a

single new rule to qualify for this exception. See Beard v.

Banks, 542 U.S. 406, 417 (2004). It has found a great many

rules and proposed rules that do not. A handful of circuit cases

have found rules to qualify, see, e.g., Bockting v. Bayer, 399

F. 3d 1010, 1012-1013 (CA9 2005), cert. granted sub nom.

Whorton v. Bockting, No. 05-595, May 15, 2006, but Congress

had so little confidence in the Court of Appeals’ decisions on

retroactivity that it limited the retroactive rule exception for

successive petitions to rules “made retroactive . . . by the

Supreme Court.” See 28 U.S. C. §2244(b)(2)(A).

In the post-7eague cases, this Court has only marginally

clarified the definition of the second exception. There are

repeated statements along the lines that a qualifying rule would

have to be of the “primacy and centrality” of Gideon. See, e.g.,

Saffle v. Parks, 494 U. S. 484, 495 (1990).

The farther we go down the path of the evolution of

criminal procedure, the less likely it becomes that any “absolute

prerequisite to fundamental fairness,” Teague, 489 U. S., at

314, remains unrecognized. Justice Stevens recognized the

connection between the fundamental nature of a rule and the

time of its recognition in his dissent in Rose v. Lundy, 455

U. S. 509, 544, and nn. 9-11 (1982), where he illustrated

“fundamental” by reference to the “classic grounds” for habeas

corpus— all rules which predate Gideon.

23

Tyler v. Cain, 533 U.S. 656 (2001) contains an important

shift in language which recognizes this further diminution in

the probability of the existence of any new, fundamental rule.

There the Court said, “it is unlikely that any of these watershed

rules ‘ha[s] yet to emerge.’ ” /d., at 667, n. 7 (emphasis

added); see also Schriro v. Summerlin, 542 U. S. 348, 352

(2004) (quoting 7yler). The shift from “many” in 1989 to

“any” in 2001 recognizes that the probability is asymptotically

approaching zero.

Because the second exception exists in theory, it must be

litigated for every new rule in every circuit, except for the rules

where this Court decides the question. Yet this Court cannot

decide the question on every rule. The fact that the retroactiv-

ity of Mills v. Maryland, 486 U. S. 367 (1988) remained

undecided for 16 years until Beard v. Banks, supra, despite

long-standing circuit splits and numerous petitions for certio-

rari, vividly illustrates the problem. See, e.g., Petition for Writ

of Certiorari in Dixon v. Williams, No. 92-111 (requesting

resolution of the circuit split 12 years before Banks). The

Teague opinion denounced the “unfortunate disparity in the

treatment of similarly situated defendants on collateral review”

that resulted from varying decisions in the lower courts on

retroactivity under the prior doctrine. Teague, 489 U. S., at

305. Yet the same result has followed under Teague from

confusion over the second exception.

In the near future, amicus CJLF believes it will be appropri-

ate for the Court to accept that there are no rules of the

“primacy and centrality of ... Gideon” remaining to be made.

The second exception can then be formally retired as unneces-

sary and the litigation it creates ended. For the present case, we

propose a more limited curtailment. We propose a bright-line

rule that new rules which govern the process of choosing a

sentence within the range for which the defendant is eligible

are per se outside the second exception.

Both this Court and the Congress have altered the law of

habeas corpus over the course of the last 30 years with two

goals in mind: to keep the writ available to correct fundamen-

tal miscarriages of justice and to curtail its misuse for endless

relitigation of questions already reasonably resolved once. To

reconcile these competing goals, new limitations on the writ

have typically come with “actual innocence” exceptions. See

Murray v. Carrier, 477 U.S. 478, 495-496 (1986); 28 U.S.C.

§ 2244(b)(2)(B)(ii). The unifying theme is to tighten restric-

tions in the interest of finality and federalism but relax them to

avoid a fundamental miscarriage of justice. The Teague rule is

an important part of the tightening, and the second exception is

based on the actual innocence consideration. See Withrow v.

Williams, 507 U. S. 680, 699-700 (1993) (O’Connor, J.,

concurring in part and dissenting in part).

The second exception to Teague is closely related to the

actual innocence exception of Carrier, as Teague itself makes

clear. See 489 U. S., at 313. Application of this exception to

capital cases is therefore illuminated by two cases defining the

Carrier exception: Sawyer v. Whitley, 505 U. S. 333 (1992)

and Schlup v. Delo, 513 U.S. 298 (1995).

Sawyer noted that in an ordinary criminal case, the

“fundamental miscarriage of justice” exception meant that the

person was “actually innocent,” which in turn simply meant

that “the State has convicted the wrong person of the crime.”

See 505 U. S., at 340. In the context of capital sentencing,

Sawyer rejected the argument that the concept extended beyond

eligibility for the death penalty (i.e., truth of at least one

aggravating factor) to “the ultimate discretionary decision

between the death penalty and life imprisonment.” /d., at 343.

A “fundamental miscarriage of justice,” for this purpose, means

only a death sentence imposed on a person legally ineligible for

it, not a sentence within the discretionary range. See id., at

347. Schlup further distinguished actual innocence of the crime

from ineligibility for the penalty. The greater importance of

real innocence warranted a more relaxed standard for the

exception to finality. See 513 U.S., at 324.

25

If we take the Sawyer/Schlup implementation of Carrier

along with Jeague’s reliance on Carrier for the second

exception, a simple, clear, bright line becomes visible. Just as

issues relating only to the discretionary sentencing decision

never qualify for the “fundamental miscarriage of justice”

exception of Carrier, so new rules relating only to the opera-

tion of that discretionary step mever qualify for the second

exception to Teague.

The bar for death-eligibility is very high. First, the defen-

dant must be guilty of murder, not some lesser offense. See

Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opin-

ion). The class of murderers must be further narrowed by

objective factors in the form of aggravating circumstances or a

higher degree of murder. See Tuilaepa v. California, 512 U.S.

967, 971-972 (1994). The defendant must not qualify for a

growing list of exclusion criteria. See Enmund v. Florida, 458

U.S. 782, 797 (1982) (minor accomplice without intent to kill);

Atkins vy. Virginia, 536 U. S. 304, 318 (2002) (mentally

retarded); Roper v. Simmons, 543 U.S. 551, 574-575 (2005)

(age). Once the case has cleared all those hurdles, it is difficult

to imagine a case where the justice of the death penalty is not

a matter of opinion on which reasonable people can and will

differ.

A bright-line rule “is designed to avoid the costs of

excessive inquiry where [it] will achieve the correct result in

almost all cases.” Coleman v. Thompson, 501 U.S. 722, 737

(1991). Categorically excluding the regulation of discretionary

sentencing from the second Teague exception satisfies that

criterion. The only rules in this area that are even arguably of

the “primacy and centrality of . . . Gideon” are those of Gregg

v. Georgia, 428 U. S. 153 (1976) and its companion cases.

Since then, every defendant sentenced to death has been

entitled to a narrowed definition of eligibility and an individu-

alized consideration of mitigating circumstances. By compari-

son, all the rules created since then have amounted to fine

tuning within these broad outlines.

26

The continued existence in theory of an exception which

never applies in fact serves only to delay justice in cases where

it is already long overdue and to squander resources better

spent elsewhere. We have devoted far too large a share of our

case review resources on the claims of unquestionably guilty

murderers, claims which have nothing to do with guilt or

innocence.

The only consequence of a Teague bar is that the habeas

petitioner's sentence is judged by the standards in effect at the

time of his direct appeal. See Sawyer v. Smith, 497 U. S. 227,

243 (1990). That includes all the requirements of Gregg and

its companion cases. For issues having no relation whatever to

actual innocence of the murder, that is sufficient to avoid a

fundamental miscarriage of justice.

The issue in the present case has nothing to do with guilt of

the offense and nothing to do with eligibility for the death

penalty. The second-exception argument could be summarily

dismissed, as this Court has done in many cases. See, e.g.,

Gray v. Netherland, 518 U. S. 152, 170 (1996). However, a

substantial step toward achieving the goals set out in Teague

could be achieved by simply declaring the second exception to

be per se inapplicable to rules governing the discretionary

sentencing decision.

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit

should be reversed.

June, 2006

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation