Subject:  LEWIS v. JEFFERS, 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 Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS, et al. v. JEFFERS


certiorari to the united states court of appeals for the ninth circuit

No. 89-189.  Argued February 21, 1990--Decided June 27, 1990

In affirming respondent Jeffers' first-degree murder conviction and death
sentence, the Arizona Supreme Court, inter alia, independently reviewed the
evidence supporting the trial court's finding of the statutory aggravating
circumstance that the crime was committed "in an especially heinous, cruel
or depraved manner."  The court noted its recent ruling that the infliction
of gratuitous violence on the victim is among the factors to be considered
in determining whether the murder was "especially heinous . . . and
depraved," and found the presence of this factor in light of evidence that
Jeffers had climbed on top of the dead victim and hit her in the face
several times, causing additional wounds and bleeding.  Noting further that
the apparent relish with which the defendant commits the murder is another
relevant factor under its decisions, the court concluded that Jeffers'
relish for his crime was evidenced by testimony that, while he was beating
the dead victim, he called her a "bitch" and a "dirty snitch" and stated,
as each blow landed, that "[t]his one is for" someone on whom he felt she
had informed.  The Federal District Court denied Jeffers' habeas corpus
petition.  The Court of Appeals agreed with the District Court that the
"especially heinous . . . or depraved" aggravating circumstance, as
interpreted and narrowed by the State Supreme Court, was not void on its
face, but vacated Jeffers' death sentence on the ground that the
circumstance was unconstitutionally vague as applied to him.

Held:

    1. The Court of Appeals erred in holding that Arizona's construction of
the "especially heinous . . . or depraved" aggravating circumstance in this
case contravened Godfrey v. Georgia, 446 U. S. 420, 428, and Maynard v.
Cartwright, 486 U. S. 356, 364.  There is no dispute here that the Arizona
Supreme Court applied its narrowing construction to the facts of Jeffers'
case.  More important, the Court of Appeals noted that the circumstance, as
construed by the state courts, was not unconstitutionally vague on its
face.  Even if it had not so held, Jeffers' claim that Arizona has not
construed the circumstance in a constitutionally narrow manner is disposed
of by Walton v. Arizona, ---- U. S. ----, ----, which upheld, against a
vagueness challenge, the precise aggravating circumstance at issue here.
Moreover, a claim identical to Jeffers' assertion that the aggravating
circumstance may nevertheless be vague "as applied" to him was rejected in
Walton, supra, at ----, which makes clear that if a State has adopted a
constitutionally narrow construction of a facially vague aggravating
circumstance and has applied that construction to the facts of the
particular case, the fundamental constitutional requirement of channeling
and limiting the capital sentencer's discretion has been satisfied.  Pp.
9-13.

    2. The Court of Appeals erred in conducting a de novo, case-by-case
comparison of the facts of those cases with the facts of this case to
decide Jeffers' as-applied challenge.  That challenge reduces, in essence,
to a claim that the state court simply misapplied its own aggravating
circumstance to the facts of Jeffers' case.  Because federal habeas corpus
relief does not lie for errors of state law, federal habeas review of a
state court's application of a constitutionally narrowed aggravating
circumstance is limited, at most, to determining whether the state court's
finding was so arbitrary or capricious as to constitute an independent due
process or Eighth Amendment violation.  In making that determination, the
appropriate standard of review is the "rational factfinder" standard of
Jackson v. Virginia, 443 U. S. 307, 319, under which the federal court must
view the evidence in the light most favorable to the prosecution to
determine whether "any rational trier of fact could have found the elements
of the crime beyond a reasonable doubt."  Under the standard, a rational
factfinder could have found that Jeffers both relished his crime and
inflicted gratuitous violence, given the evidence of his conduct toward the
victim's body.  Pp. 13-19.

832 F. 2d 476, reversed and remanded.

O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and White, Scalia, and Kennedy, JJ., joined.  Brennan, J., filed a
dissenting opinion, in which Marshall, J., joined (see No. 88- 7351).
Blackmun, J., filed a dissenting opinion, in which Brennan, Marshall, and
Stevens, JJ., joined.

------------------------------------------------------------------------------




Subject: 89-189--OPINION, LEWIS v. JEFFERS

 


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,
Washington, 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. 89-189



SAMUEL A. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, et al.,
PETITIONERS v. JIMMIE WAYNE JEFFERS

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 27, 1990]



    Justice O'Connor delivered the opinion of the Court.
    This case presents issues pertaining to federal court review of a state
court's determination that an offense was committed "in an especially
heinous, cruel or depraved manner," Ariz. Rev. Stat. MDRV 13-703(F)(6)
(1989).

I
    The relevant facts are undisputed.  The evidence at trial showed that
in May 1976, police arrested respondent Jimmie Wayne Jeffers and his
girlfriend, Penelope Cheney, on state- law charges of possession of
narcotics and receipt of stolen property.  Respondent posted bond for
Cheney, but was unable to post bond for himself and remained in custody at
the Pima County Jail.  While in jail, respondent received reports that
Cheney had been cooperating with police by providing the police with
information about respondent and certain heroin transactions.  Respondent
wrote a note to another jail inmate offering him money if he would kill
Cheney.  The detention officer who was supposed to deliver the note read it
and seized it.
    In October 1976, respondent was released from jail on bond pending
appeal of his convictions.  About a week later, he met Doris Van Der Veer
and began living with her at a motel in Tucson.  Respondent subsequently
invited Cheney to the motel in order to provide her with some heroin.
    On the day of the murder, respondent told Van Der Veer that Cheney was
coming over and that they wished to be alone.  When Cheney arrived,
respondent introduced her to Van Der Veer, who then excused herself.  After
about two and a half hours, Van Der Veer returned to the motel room and
knocked on the door.  Respondent admitted her, pointed a gun at her, and
ordered her to sit in a chair and be quiet.
    Upon entering the motel room, Van Der Veer saw Cheney lying unconscious
on the bed.  Cheney appeared cyanotic.  Respondent injected a fluid into
Cheney's hand and told Van Der Veer that he had "given her enough shit to
kill a horse and this bitch won't die."  Van Der Veer noticed foam coming
from Cheney's mouth, which she recognized from her training as a nurse to
be a sign of heroin overdose.  Van Der Veer checked Cheney's condition and
determined that she was still alive.  Van Der Veer asked respondent if he
was going to help Cheney, to which he responded, "No, I'm going to kill
her."
    Respondent then removed the belt from around Cheney's waist and began
to choke her with it.  He soon discarded the belt and choked her with his
bare hands.  Van Der Veer urged him to stop, saying Cheney would probably
die anyway, but respondent replied, "No, I've seen her this way before and
she's come out of it."
    After strangling Cheney, respondent instructed Van Der Veer to check
Cheney's pulse.  Van Der Veer found no pulse and reported that Cheney was
dead.  Respondent then ordered Van Der Veer to inject more heroin into
Cheney and to choke her while he took pictures.  Van Der Veer complied.
Respondent told Van Der Veer that he did this to have proof that she was an
accomplice.  Respondent then beat Cheney with his hands several times,
calling her a "bitch" and a "dirty snitch" and stating, as each blow
landed, that "[t]his one is for [naming several names]."  Respondent then
dragged the body off the bed and placed it in the shower stall.  After
three days, when the body began to smell, respondent and Van Der Veer
wrapped the body in newspaper and plastic garbage bags, placed it in a
sleeping bag, and transported it to a secluded area, where they buried it
in a shallow grave.
    A jury convicted respondent of the first-degree murder of Cheney.
After a sentencing hearing, the trial court found two aggravating
circumstances and no mitigating factors.  In accordance with the Arizona
death penalty statute, Ariz. Rev. Stat. MDRV 13-454 (Supp. 1973) (currently
Ariz. Rev. Stat. MDRV 13-703 (1989)), respondent was sentenced to death.
App. 5-10.
    On direct review of his conviction and sentence, the Arizona Supreme
Court, following this Court's decision in Lockett v. Ohio, 438 U. S. 586
(1978), vacated respondent's death sentence and remanded for resentencing.
See State v. Watson, 120 Ariz. 441, 586 P. 2d 1253 (1978) (requiring the
trial court to consider nonstatutory mitigating factors), cert. denied, 440
U. S. 924 (1979).  At the second sentencing hearing, the trial court again
found two aggravating circumstances beyond a reasonable doubt: that
respondent had created a grave risk of death to another person (Van Der
Veer) in the commission of the murder and that respondent committed the
murder in an especially heinous, cruel, and depraved manner.  See Ariz.
Rev. Stat. MDRV 13-703(F)(3) and (6) (1989). {1}  The court found no
mitigating factors and thereupon resentenced respondent to death. {2}  App.
11-16.
    On direct appeal, the Arizona Supreme Court affirmed the convictions
and sentences.  State v. Jeffers, 135 Ariz. 404, 661 P. 2d 1105, cert.
denied, 464 U. S. 865 (1983).  With regard to respondent's death sentence,
the court stated that, under Arizona law, "this court independently reviews
the facts that the trial court found established the presence or absence of
aggravating and mitigating circumstances, and we determine for ourselves if
the latter outweigh the former when we find both to be present."  135
Ariz., at 428, 661 P. 2d, at 1129 (citations omitted).  Applying this
standard, the court reversed the trial court's finding that respond- ent
"knowingly created a grave risk of death to another person . . . in
addition to the victim of the offense," Ariz. Rev. Stat. MDRV 13-703(F)(3)
(1989).
    The court then reviewed the trial court's finding that respondent
"committed the offense in an especially heinous, cruel or depraved manner,"
MDRV 13-703(F)(6).  The court noted that it had interpreted and applied
this provision in light of the dictionary definitions of the words used:

"The element of cruelty involves the pain and the men- tal and physical
distress visited upon the victims.  Heinous and depraved involve the mental
state and attitude of the perpetrator as reflected in his words and
actions.  `Heinous' means `hatefully or shockingly evil; grossly bad';
`cruel' means `disposed to inflict pain esp. in a wanton, insensate or
vindictive manner; sadistic'; and `depraved' means `marked by debasement,
corruption, perversion or deterioration.' "  135 Ariz., at 429, 661 P. 2d,
at 1130 (citations omitted).


    Independently reviewing the evidence, the court concluded that the
State had failed to prove the element of cruelty beyond a reasonable
doubt:

"There was no evidence that the victim suffered any pain.  It appears from
the record that after the injection of heroin, the victim lost
consciousness and never regained it before she died.  Therefore, the victim
experienced no pain or mental suffering and the murder was not `cruel' for
purposes of A. R. S. MDRV 13-703(F)(6)."  Id., at 429, 661 P. 2d, at 1130.


    The court found, however, that "the events surrounding the murder
itself support the trial court's finding that the murder was `especially
heinous . . . and depraved.' "  Id., at 430, 661 P. 2d, at 1131.  The court
noted that it had recently delineated factors to be considered in
determining whether the offense was committed in a heinous or depraved
manner and that the infliction of gratuitous violence on the victim was one
factor.  See ibid. (citing State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1,
cert. denied, 461 U. S. 971 (1983), and State v. Ceja, 126 Ariz. 35, 612 P.
2d 491 (1980)).  The court then observed that, in the instant case, "the
defendant climbed on top of the dead victim and hit her in the face several
times which eventually resulted in additional wounds and bleeding."  135
Ariz., at 430, 661 P. 2d, at 1131.  The court further noted that the
apparent relish with which the defendant commits the murder was another
factor.  Ibid. (citing State v. Bishop, 127 Ariz. 531, 622 P. 2d 478
(1980)).  Finding that "while Jeffers was beating the victim he called her
`a bitch and a dirty snitch' and with each striking blow said, `This one is
for so and so. [naming several names],' " the court concluded: "This
evidences the relish with which [respondent] committed the murder.  In
light of these prior decisions and the Gretzler considerations, we find
that the remarks made by [respondent], while at the same time beating his
victim, establish that the offense was committed in an especially heinous
and depraved manner."  135 Ariz., at 430, 661 P. 2d, at 1131.
    The court then rejected respondent's contention that the "especially
heinous, cruel or depraved" aggravating circumstance, as construed and
applied by the court, was unconsti tutionally broad.  Relying on its
decision in State v. Gretzler, supra, the court held that "[e]ach
element--cruel, heinous, and depraved--has been narrowly defined and
construed . . . to meet constitutional standards."  135 Ariz., at 430, 661
P. 2d, at 1131.  The court explained:

"We have been insistent that the murder be especially cruel or especially
depraved before [MDRV 13-703(F)(6)] would apply.  We have clearly defined
the terms and have delineated factors to guide us in determining if the
crime was indeed committed in such a manner. . . . Further the case law
reveals that MDRV (F)(6) is not applicable to any and all murders, this
court has narrowly limited its applicability to cases which stand apart
from the norm."  Ibid. (citations omitted).


    Finally, based on its own review of the evidence, the court affirmed
the trial court's determinations that no mitigating factors existed that
were sufficiently substantial to call for leniency and that the factors in
mitigation did not outweigh the aggravating circumstances.  Id., at
431-432, 661 P. 2d, at 1132-1133.  The court concluded that respondent's
death sentence was not disproportionate to the sentence imposed in similar
cases and that "[w]e have reviewed the entire record pursuant to A. R. S.
MDRV 13-4035 and found no fundamental error.  In our independent
determination we found one aggravating factor--that the offense was
committed in an especially heinous and depraved manner--and no mitigating
factors sufficiently substantial to call for leniency."  Id., at 432, 661
P. 2d, at 1133.
    Respondent then petitioned for a writ of habeas corpus in the United
States District Court for the District of Arizona, alleging, among other
claims, that Arizona's interpretation of its "especially heinous . . . or
depraved" aggravating circumstance was unconstitutionally overbroad and
vague.  The District Court reiterated that, under Arizona law, "[a] murder
that is especially heinous and depraved includes the infliction of
gratuitous violence upon the victim and the indication that the defendant
committed the crime with relish."  627 F. Supp. 1334, 1360 (Ariz. 1986)
(citations omitted).  The District Court then noted:

"The evidence in this case indicates that the victim, Penny, had either
taken or was injected by Jeffers with such a sufficiently large dose of
heroin that she lost consciousness.  Even after she lost consciousness,
Jeffers injected her with more heroin.  When this did not kill her, he
attempted to strangle her with a belt and finally accomplished his intended
purpose by strangulation with his hands.  He then required the eyewitness,
at gun point, to perform the same acts on the corpse while he took
pictures.  He then climbed on top of the corpse and inflicted blows to the
face.  While striking the corpse, he stated that each blow was for one of
the persons that Jeffers believed Penny to have been responsible for their
arrest due to narcotic trafficking activities with Jeffers.  He then pulled
the corpse across the floor to the shower where it remained for three
days."  Ibid.

Based on these facts, the court rejected respondent's vagueness and
overbreadth challenge to the "especially heinous . . . or depraved"
aggravating circumstance.  Ibid.
    A divided panel of the Court of Appeals for the Ninth Circuit vacated
respondent's death sentence on the ground that the "especially heinous . .
. or depraved" circumstance was unconstitutionally vague as applied to him.
Jeffers v. Ricketts, 832 F. 2d 476, 482-486 (1987).  As an initial matter,
the Court of Appeals agreed with the District Court that the MDRV (F)(6)
aggravating circumstance was not unconstitutionally vague on its face.
Id., at 482 (citing Chaney v. Lewis, 801 F. 2d 1191, 1194-1196 (CA9 1986),
cert. denied, 481 U. S. 1023 (1987)).
    The Court of Appeals then held, however, that "[w]hile Chaney
establishes that the Arizona statute is not void on its face and is capable
of constitutional application, it naturally does not answer the question
whether the Arizona statute was constitutionally applied to Jeffers in this
case."  832 F. 2d, at 482.  Reviewing a number of Arizona Supreme Court
cases defining and applying the "especially heinous . . . or depraved"
circumstance, the Court of Appeals compared the facts of those cases to the
facts of this case and concluded that "the standard of heinousness and
depravity delineated in prior Arizona cases cannot be applied in a
principled manner to Jeffers."  Id., at 485.  The Court of Appeals
therefore struck down respondent's death sentence as arbitrary: "To apply
the standard of especial heinousness and depravity to Jeffers' case when
the facts do not permit it is arbitrary or capricious, and is therefore an
unconstitutional application of the standard. . . . Arizona's existing
standard . . . cannot be extended to Jeffers' case without losing its
ability to distinguish in a principled manner between those it condemns to
death and those it does not."  Id., at 486 (citing Godfrey v. Georgia, 446
U. S. 420, 428 (1980)).  The dissenting member of the panel maintained that
"the majority [was] doing little more than second-guessing the Arizona
Supreme Court's interpretation of facts that quite reasonably fit within
the statutory definition of aggravating circumstances."  832 F. 2d, at
487.
    We granted certiorari, 493 U. S. ---- (1989), and now reverse.

II
    Petitioners contend that this case presents the question whether a
federal court may make a de novo review of the evidence supporting a state
court's finding of a facially constitutional aggravating circumstance.
Respondent maintains that this case presents only the question whether the
Court of Appeals correctly held that Arizona's construction of the MDRV
(F)(6) aggravating circumstance in this case contravened this Court's
decisions in Godfrey v. Georgia, supra, and Maynard v. Cartwright, 486 U.
S. 356 (1988).  We begin our analysis with respondent's contention.

A
    Our capital punishment doctrine is rooted in the principle that "
`[t]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique penalty to be
. . . wantonly and . . . freakishly imposed.' "  Gregg v. Georgia, 428 U.
S. 153, 188 (1976) (joint opinion) (quoting Furman v. Georgia, 408 U. S.
238, 310 (1972) (Stewart, J., concurring)); see also Furman, supra, at 313
(White, J., concurring) (invalidating capital punishment statute where
"there is no meaningful basis for distinguishing the few cases in which
[the death penalty] is imposed from the many cases in which it is not").
Accordingly, "where discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life should be taken or
spared, that discretion must be suitably directed and limited so as to
minimize the risk of wholly arbitrary and capricious action."  Gregg, 428
U. S., at 189.
    This principle requires a State to "channel the sentencer's discretion
by `clear and objective standards' that provide `specific and detailed
guidance,' and that `make rationally reviewable the process for imposing a
sentence of death.' "  Godfrey, supra, at 428 (footnotes omitted).  A
State's definitions of its aggravating circumstances--those circumstances
that make a criminal defendant "eligible" for the death penalty--therefore
play a significant role in channeling the sentencer's discretion.  The
Court in Gregg, for example, held that Georgia's "outrageously or wantonly
vile" aggravating circumstance, Ga. Code Ann. MDRV 27-2534.1(b)(7) (Supp.
1975) ("outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to the
victim"), was not unconstitutionally vague because the Georgia courts could
give it a narrowing construction.  See 428 U. S., at 201 (joint opinion)
(Although "arguabl[y] . . . any murder involves depravity of mind or an
aggravating battery," there was "no reason to assume that the Supreme Court
of Georgia will adopt such an open-ended construction"); see also Proffitt
v. Florida, 428 U. S. 242, 255 (1976) (joint opinion) (upholding Florida's
"especially heinous, atrocious or cruel" aggravating circumstance, Fla.
Stat. Ann. MDRV 921.141(5)(h) (Supp. 1976-1977), on the ground that the
Supreme Court of Florida had restricted the circumstance to include only "
`the conscienceless or pitiless crime which is unnecessarily torturous to
the victim' ").
    In Godfrey v. Georgia, supra, however, a plurality of the Court held
that although the Georgia Supreme Court had adopted a narrowing
construction of Georgia's MDRV (b)(7) aggra vating circumstance, the death
sentence at issue could not stand because no evidence existed that the
state courts had applied the narrowing construction to the facts of that
case.  446 U. S., at 432 ("The circumstances of this case . . . do not
satisfy the criteria laid out by the Georgia Supreme Court itself" in the
cases adopting the narrowing construction).  Because the Georgia courts had
not applied the narrowing construction, the plurality considered whether
the Georgia Supreme Court, in affirming the death sentence, had
nevertheless applied a constitutional construction of the MDRV (b)(7)
aggravating circumstance.  Id., at 432-433.  The plurality concluded that
the state court had not, because "[t]here is no principled way to
distinguish this case, in which the death penalty was imposed, from the
many cases in which it was not."  Id., at 433.
    We have reiterated the general principle that aggravating circumstances
must be construed to permit the sentencer to make a principled distinction
between those who deserve the death penalty and those who do not.  See
Spaziano v. Florida, 468 U. S. 447, 460 (1984) ("If a State has determined
that death should be an available penalty for certain crimes, then it must
administer that penalty in a way that can rationally distinguish between
those individuals for whom death is an appropriate sanction and those for
whom it is not"); Zant v. Stephens, 462 U. S. 862, 877 (1983) ("[A]n
aggravating circumstance must genuinely narrow the class of persons
eligible for the death penalty and must reasonably justify the imposition
of a more severe sentence on the defendant compared to others found guilty
of murder") (footnote omitted); see also Barclay v. Florida, 463 U. S. 939,
960 (1983) (Stevens, J., concurring in judgment) ("A constant theme of our
cases--from Gregg and Proffitt through Godfrey, Eddings, and most recently
Zant--has been emphasis on procedural protections that are intended to
ensure that the death penalty will be imposed in a consistent, rational
manner"); Lowenfield v. Phelps, 484 U. S. 231, 244-246 (1988).
    Indeed, in Maynard v. Cartwright, 486 U. S. 356 (1988), we applied the
teachings of Godfrey to hold that the Oklahoma courts had not construed
Oklahoma's "especially heinous, atrocious, or cruel" aggravating
circumstance in a manner sufficient "to cure the unfettered discretion of
the jury and to satisfy the commands of the Eighth Amendment."  486 U. S.,
at 364.  We concluded that the Oklahoma court's "conclusion that on th[e]
facts [of the case] the jury's verdict that the murder was especially
heinous, atrocious, or cruel was supportable did not cure the
constitutional infirmity of the aggravating circumstance."  Ibid.
    Respondent's reliance on Godfrey and Cartwright, however, does not
yield the result he seeks.  Unlike in Godfrey, there is no dispute in this
case that the Arizona Supreme Court applied its narrowing construction of
Arizona's MDRV (F)(6) aggravating circumstance to the facts of respondent's
case.  See State v. Jeffers, 135 Ariz., at 429-430, 661 P. 2d, at 1130-
1131.  More important, the Court of Appeals noted that the MDRV (F)(6)
aggravating circumstance, as interpreted by the Arizona courts, was not
unconstitutionally vague on its face.  See 832 F. 2d, at 482 (citing Chaney
v. Lewis, 801 F. 2d, at 1194-1196).  "The Arizona Supreme Court appears to
have sufficiently channeled sentencing discretion to prevent arbitrary and
capricious capital sentencing decisions.  The court has defined each of the
factors set forth in section 13-703 (F)(6).  These definitions have been
applied consistently."  Chaney, supra, at 1195 (citations and quotations
omitted).
    Even had the Court of Appeals not so held, we resolved any doubt about
the matter in Walton v. Arizona, ante, p. ----, where we upheld, against a
vagueness challenge, the precise aggravating circumstance at issue in this
case.  See ante, at ----.  Our holding in Walton, which disposes of
respondent's claim that Arizona has not construed its MDRV (F)(6)
aggravating circumstance in a constitutionally narrow manner, bears
repeating here:

"Recognizing that the proper degree of definition of an aggravating factor
of this nature is not susceptible of mathematical precision, we conclude
that the definition given to the `especially cruel' provision by the
Arizona Supreme Court is constitutionally sufficient because it gives
meaningful guidance to the sentencer.  Nor can we fault the state court's
statement that a crime is committed in an especially `depraved' manner when
the perpetrator `relishes the murder, evidencing debasement or perversion,'
or `shows an indifference to the suffering of the victim and evidences a
sense of pleasure' in the killing."  Ante, at ---- (citation omitted).


Walton therefore squarely forecloses any argument that Arizona's MDRV
(F)(6) aggravating circumstance, as construed by the Arizona Supreme Court,
fails to "channel the sentencer's discretion by `clear and objective
standards' that provide `specific and detailed guidance,' and that `make
rationally reviewable the process for imposing a sentence of death.' "
Godfrey, 446 U. S., at 428 (footnotes omitted).
    The dissent's suggestion that our reliance on Walton is misplaced is
without merit.  We granted certiorari in Walton to decide "[w]hether
Arizona's `especially heinous, cruel or depraved' aggravating circumstance,
as interpreted by the Arizona courts, fails to channel the sentencer's
discretion as required by the Eighth Amendment," Brief for Petitioner in
Walton v. Arizona, O. T. 1989, No. 7351, p. i, and our judgment in that
case plainly rested on a negative answer to that question.  See ante, at
---- - ----; ante, at ---- (Scalia, J., concurring in part and concurring
in judgment); see also ante, at ---- - ---- (Blackmun, J., dissenting)
(discussing vagueness of the state courts' construction of the "especially
heinous . . . or depraved" aggravating circumstance).  We decline the
dissent's apparent invitation to reconsider arguments addressed and
rejected in a decision announced only today.

B
    In light of the Court of Appeals' rejection of respondent's facial
challenge, respondent defends the decision below on the ground that, even
if Arizona has adopted a constitutionally narrow construction of its MDRV
(F)(6) aggravating circumstance, and even if the Arizona Supreme Court
applied that narrowing construction to the facts of his case, the aggra
vating circumstance may nevertheless be vague "as applied" to him.  We
rejected an identical claim in Walton, however, and the conclusion we
reached in Walton applies with equal force in this case:

    "Walton nevertheless contends that the heinous, cruel, or depraved
factor has been applied in an arbitrary manner and that as applied does not
distinguish his case from cases in which the death sentence has not been
imposed.  In effect Walton challenges the proportionality review of the
Arizona Supreme Court as erroneous and asks us to overturn it.  This we
decline to do, for we have just concluded that the challenged factor has
been construed by the Arizona courts in a manner that furnishes sufficient
guidance to the sentencer.  This being so, proportionality review is not
constitutionally required, and we `lawfully may presume that [Walton's]
death sentence was not "wantonly and freakishly" imposed--and thus that the
sentence is not disproportionate within any recognized meaning of the
Eighth Amendment.'  McCleskey v. Kemp, 481 U. S. 279, 306, 308 (1987);
Pulley v. Harris, 465 U. S. 37, 43 (1984).  Furthermore, the Arizona
Supreme Court plainly undertook its proportionality review in good faith
and found that Walton's sentence was proportional to the sentences imposed
in cases similar to his.  The Constitution does not require us to look
behind that conclusion."  Ante, at ----.


    Our decision in Walton thus makes clear that if a State has adopted a
constitutionally narrow construction of a facially vague aggravating
circumstance, and if the State has applied that construction to the facts
of the particular case, then the "fundamental constitutional requirement"
of "channeling and limiting . . . the sentencer's discretion in imposing
the death penalty," Cartwright, 486 U. S., at 362, has been satisfied.
Apart from its analysis of Arizona's MDRV (F)(6) cases to de termine
whether the aggravating circumstance was facially valid--i. e., whether the
Arizona courts had given a sufficiently narrow limiting construction to the
circumstance--the Court of Appeals in this case therefore erred in
conducting a de novo, case-by-case comparison of the facts of those cases
with the facts of the instant case.  See McCleskey v. Kemp, 481 U. S. 279,
306-307 (1987) ("[A]bsent a showing that the Georgia capital punishment
system operates in an arbitrary and capricious manner, McCleskey cannot
prove a constitutional violation by demonstrating that other defendants who
may be similarly situated did not receive the death penalty").

C
    In light of our rejection of respondent's constitutional challenge to
Arizona's "especially heinous . . . or depraved" aggravating circumstance,
see Walton, respondent's contention--that the Arizona Supreme Court's
application of its narrowing construction to the facts of his case
nevertheless failed to distinguish his case from cases in which the court
did not find the aggravating circumstance--reduces, in essence, to a claim
that the state court simply misapplied its own aggravating circumstance to
the facts of his case.  Because federal habeas corpus relief does not lie
for errors of state law, see, e. g., Pulley v. Harris, 465 U. S. 37, 41
(1984); Rose v. Hodges, 423 U. S. 19, 21-22 (1975) (per curiam), federal
habeas review of a state court's application of a constitutionally narrowed
aggravating circumstance is limited, at most, to de termining whether the
state court's finding was so arbitrary or capricious as to constitute an
independent due process or Eighth Amendment violation.  Cf. Donnelly v.
DeChristo foro, 416 U. S. 637, 642, 643 (1974) (absent a specific
constitutional violation, federal habeas review of trial error is limited
to whether the error "so infected the trial with unfairness as to make the
resulting conviction a denial of due process").
    In making such a determination, respect for a state court's findings of
fact and application of its own law counsels against the sort of de novo
review undertaken by the Court of Appeals in this case.  Cf. 832 F. 2d, at
484 ("Illumined . . . by the case examples furnished by the Arizona Supreme
Court, [the "especially heinous . . . or depraved" standard] seems to call
for conduct or attitudes more shocking than those exhibited by Jeffers").
Where the issue is solely whether a state court has properly found the
existence of a constitutionally narrowed aggravating circumstance, we have
never required federal courts "to peer majestically over the [state]
court's shoulder so that [they] might second-guess its interpretation of
facts that quite reasonably--perhaps even quite plainly--fit within the
statutory language."  Godfrey, 446 U. S., at 450 (White, J., dissenting)
(footnote omitted).  See Barclay, 463 U. S., at 947 (plurality opinion)
(review of state court findings of aggravating circumstances is "limited to
the question whether they are so unprincipled or arbitrary as to somehow
violate the United States Constitution"); id., at 968 (Stevens, J.,
concurring in judgment) ("It is not our role to reexamine the trial court's
findings of fact, which have been affirmed by the Florida Supreme Court.
Assuming those facts to be true, there is no federal constitutional
infirmity in these two findings of statutory aggravating circumstances").
    Rather, in determining whether a state court's application of its
constitutionally adequate aggravating circumstance was so erroneous as to
raise an independent due process or Eighth Amendment violation, we think
the more appropriate standard of review is the "rational factfinder"
standard established in Jackson v. Virginia, 443 U. S. 307 (1979).  We held
in Jackson that where a federal habeas corpus claimant alleges that his
state conviction is unsupported by the evidence, federal courts must
determine whether the conviction was obtained in violation of In re
Winship, 397 U. S. 358 (1970), by asking "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt."  443 U. S., at 319 (citation omitted); see also id., at
324 ("We hold that in a challenge to a state criminal conviction brought
under 28 U. S. C. MDRV 2254-- if the settled procedural prerequisites for
such a claim have otherwise been satisfied--the applicant is entitled to
habeas corpus relief if it is found that upon the record evidence adduced
at trial no rational trier of fact could have found proof of guilt beyond a
reasonable doubt") (footnote omitted).  The Court reasoned:

"This familiar standard gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate
facts.  Once a defendant has been found guilty of the crime charged, the
factfinder's role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution."  443 U. S., at
319 (footnote omitted).


    These considerations apply with equal force to federal habeas review of
a state court's finding of aggravating cir cumstances.  Although
aggravating circumstances are not "elements" of any offense, see Walton,
ante, at ----, the standard of federal review for determining whether a
state court has violated the Fourteenth Amendment's guarantee against
wholly arbitrary deprivations of liberty is equally applicable in
safeguarding the Eighth Amendment's bedrock guarantee against the arbitrary
or capricious imposition of the death penalty.  Like findings of fact,
state court findings of aggravating circumstances often require a sentencer
to "resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts."  Jackson, 443 U.
S., at 319.  See Ariz. Rev. Stat. MDRV 13-703(F) (1989) (listing
aggravating circumstances); cf. 28 U. S. C. MDRV 2254(d) (1982 ed.)
(federal courts in habeas corpus proceedings must generally accord a
presumption of correctness to a state court's factual findings).  The
Arizona Supreme Court's narrowing construction of the MDRV (F)(6)
aggravating circumstance, for example, requires Arizona courts to determine
whether the victim suffered physical pain or mental distress and to assess
the mental state and attitude of the perpetrator as reflected by his words
and actions.  See, e. g., State v. Carriger, 143 Ariz. 142, 160, 692 P. 2d
991, 1009 (1984) (discussing narrowing construction of "cruelty" and
"heinous and depraved"), cert. denied, 471 U. S. 1111 (1985).  Even if a
determination under Arizona's narrowing construction could be characterized
as a "mixed" question of law and fact, cf. Sumner v. Mata, 455 U. S. 591,
597 (1982) (per curiam) (declining to apply MDRV 2254(d)'s presumption of
correctness to mixed questions of law and fact), any such determination
would nevertheless remain a question of state law, errors of which are not
cognizable in federal habeas proceedings.
    Moreover, a federal court should adhere to the Jackson standard even
when reviewing the decision of a state ap pellate court that has
independently reviewed the evidence, for the underlying question remains
the same: If a State's aggravating circumstances adequately perform their
consti tutional function, then a state court's application of those
circumstances raises, apart from due process and Eighth Amendment concerns,
only a question of the proper application of state law.  A state court's
finding of an aggravating circumstance in a particular case--including a de
novo finding by an appellate court that a particular offense is "especially
heinous . . . or depraved"--is arbitrary or capricious if and only if no
reasonable sentencer could have so concluded.  Indeed, respondent agrees
that "a state court's `especially heinous . . . or depraved' finding,
insofar as it is a matter of state law, is reviewable by the federal courts
only under the `rational factfinder' rule of Jackson v. Virginia."  Brief
for Respondent 95-96 (emphasis added; footnote omitted).
    Applying the Jackson standard in this case, we hold that a rational
factfinder could have found that respondent both relished the crime and
inflicted gratuitous violence on the victim.  Given the evidence that
"while Jeffers was beating the [dead] victim he called her `a bitch and a
dirty snitch' and with each striking blow said, `This one is for so and so.
[naming several names],' " State v. Jeffers, 135 Ariz., at 430, 661 P. 2d,
at 1131, we think that the Arizona Supreme Court's finding that respondent
had relished the killing is one that a rational factfinder could have made.
Moreover, the Arizona Supreme Court's finding that respondent had inflicted
gratuitous violence is rationally supported by the evidence that respondent
"climbed on top of the dead victim and hit her in the face several times
which eventually resulted in additional wounds and bleeding," ibid.  In
light of the Arizona Supreme Court's narrowing construction of the
"especially heinous . . . or depraved" aggravating circumstance, see State
v. Gretzler, 135 Ariz., at 52-53, 659 P. 2d, at 11-12 (listing factors),
the Arizona Supreme Court could reasonably have concluded that respondent
committed the murder in an "especially heinous . . . or depraved manner."
    For the foregoing reasons, we reverse the judgment of the Court of
Appeals and remand for proceedings consistent with this opinion.

It is so ordered.



------------------------------------------------------------------------------
1
    Arizona Rev. Stat. MDRV 13-703(F) provides:
    "F. Aggravating circumstances to be considered shall be the following:
    "1. The defendant has been convicted of another offense in the United
States for which under Arizona law a sentence of life imprisonment or death
was imposable.
    "2. The defendant was previously convicted of a felony in the United
States involving the use or threat of violence on another person.
    "3. In the commission of the offense the defendant knowingly created a
grave risk of death to another person or persons in addition to the victim
of the offense.
    "4. The defendant procured the commission of the offense by payment, or
promise of payment, of anything of pecuniary value.
    "5. The defendant committed the offense as consideration for the
receipt, or in expectation of the receipt, of anything of pecuniary value.
    "6. The defendant committed the offense in an especially heinous, cruel
or depraved manner.
    "7. The defendant committed the offense while in the custody of the
state department of corrections, a law enforcement agency or county or city
jail.
    "8. The defendant has been convicted of one or more homicides, as
defined in MDRV 13-1101, which were committed during the commission of the
offense.
    "9. The defendant was an adult at the time the offense was committed or
was tried as an adult and the victim was under fifteen years of age.
    "10. The murdered individual was an on duty peace officer who was
killed in the course of performing his official duties and the defendant
knew, or should have known, that the victim was a peace officer."

2
    Arizona Rev. Stat. MDRV 13-703(E) provides:
    "E. In determining whether to impose a sentence of death or life
imprisonment without possibility of release on any basis . . . the court
shall take into account the aggravating and mitigating circumstances
included in subsections F and G of this section and shall impose a sentence
of death if the court finds one or more of the aggravating circumstances
enumerated in subsection F of this section and that there are no mitigating
circumstances sufficiently substantial to call for leniency."





Subject: 89-189--DISSENT, LEWIS v. JEFFERS

 


    SUPREME COURT OF THE UNITED STATES


No. 89-189



SAMUEL A. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, et al.,
PETITIONERS v. JIMMIE WAYNE JEFFERS

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 27, 1990]



    Justice Blackmun, with whom Justice Brennan, Justice Marshall, and
Justice Stevens join, dissenting.

    Seeking habeas corpus relief in the United States Court of Appeals for
the Ninth Circuit, respondent Jimmie Wayne Jeffers raised two challenges to
Arizona's "especially hei- nous . . . or depraved" aggravating
circumstance.  Ariz. Rev. Stat. Ann. MDRV 13-703F.6 (1989) (the F6
circumstance). {1}  First, Jeffers contended that the Arizona Supreme Court
has failed to articulate a constitutionally sufficient limiting
construction of the F6 circumstance.  In the alternative, Jeffers argued
that, even if a suitable limiting construction had been developed, its
application to his case failed to satisfy constitutional requirements.  The
Court of Appeals, deeming itself bound by Circuit precedent, rejected
respondent's first contention.  Jeffers v. Ricketts, 832 F. 2d 476, 482
(1987), citing Chaney v. Lewis, 801 F. 2d 1191, 1194-1196 (CA9 1986), cert.
denied, 481 U. S. 1023 (1987).  With respect to the second contention,
however, the court concluded that the standard enunciated by the Arizona
Supreme Court "seems to call for conduct or attitudes more shocking than
those exhibited by Jeffers," 832 F. 2d, at 484, and that "[b]ecause we
conclude that the standard of heinousness and depravity delineated in prior
Arizona cases cannot be applied in a principled manner to Jeffers, his
death sentence must be struck down as arbitrary."  Id., at 485.
    The State then filed a petition for rehearing and rehear- ing en banc.
The panel indicated that its ruling on the rehearing petition would be
deferred "pending a further decision of this court, sitting en banc, in
Adamson v. Ricketts."  Order of March 30, 1988.  Several months later the
en banc court issued its decision in Adamson v. Ricketts, 865 F. 2d 1011
(CA9 1988), cert. pending, No. 88-1553.  After exhaustive analysis of the
relevant Arizona precedents, the en banc court concluded that

"the (F)(6) circumstance has not been given a sufficiently narrow
construction by the Arizona Supreme Court such that its application will be
kept within identifiable boundaries.  Among the more than fifty cases in
which an (F)(6) finding was appealed, we are unable to distinguish
rationally those cases in which the Arizona Supreme Court upheld the
finding from the few in which it did not.  Because neither the legislative
standard nor the case law has properly channeled decisionmaking on the
imposition of the `especially heinous, cruel or depraved' aggravat- ing
circumstance, we find that this circumstance has been arbitrarily and
capriciously applied by the Arizona courts."  Id., at 1038. {2}


The Court of Appeals subsequently denied the State's request for rehearing
in Jeffers' case.
    As respondent in this Court, Jeffers defends the judgment of the Court
of Appeals on the grounds that no satisfactory limiting construction of the
F6 circumstance can be derived from the Arizona precedents, and,
alternatively, that if such a construction does exist, it was improperly
applied in his case. {3}  Jeffers' first claim is logically antecedent to
the second; it raises an issue of greater general importance, and, given
the decision of the en banc Court of Appeals in Adam son, it can hardly be
regarded as insubstantial.  The Court today, however, simply refuses to
discuss the merits of respondent's broad challenge to the F6 circumstance;
in lieu of analysis, it relies on a single sentence of dictum in an opinion
in another case issued today.  Because I believe that Arizona's application
of the F6 factor cannot be squared with this Court's governing
precedents--and because I regard the majority's approach as a parody of
constitutional adjudication-- I dissent.

I
    This Court consistently has recognized that "an aggravating
circumstance must genuinely narrow the class of persons eligible for the
death penalty and must reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of murder."  Zant
v. Stephens, 462 U. S. 862, 877 (1983).  The application to respondent of
Arizona's F6 circumstance can be sustained only if that aggravating factor
provides a "principled way to distinguish this case, in which the death
penalty was imposed, from the many cases in which it was not."  Godfrey v.
Georgia, 446 U. S. 420, 433 (1980) (plurality opinion).  The majority does
not contend that the statutory language, which requires only that the
murder be "especially heinous . . . or depraved," is itself sufficiently
precise to meet constitutional stand- ards. {4}  Rather, the Court refers
repeatedly to a "narrowing construction" of the F6 circumstance announced
by the Arizona Supreme Court.  See, e. g., ante, at 12, 15, 18, and 19.
The Court nowhere states precisely what that narrow- ing construction is,
nor does it examine other Arizona cases to see whether that construction
has been consistently applied.  The majority suggests, however, that the
"narrow- ing construction" was announced by the Arizona Supreme Court in
State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert. denied, 461 U. S. 971
(1983).  See ante, at 19.  Analysis of the Arizona Supreme Court's opinion
in Gretzler, and of its relationship to prior Arizona capital cases, belies
that characterization.
    Prior to Gretzler, the Arizona Supreme Court's applica- tion of the F6
circumstance was based principally on its decision in State v. Knapp, 114
Ariz. 531, 562 P. 2d 704 (1977), cert. denied, 435 U. S. 908 (1978), in
which the court recited dictionary definitions of each of the statutory
terms.  "Heinous" was defined as "hatefully or shockingly evil; grossly
bad"; "cruel" was defined as "disposed to inflict pain esp. in a wanton,
insensate or vindictive manner: sadistic"; and "depraved" was defined as
"marked by debasement, corruption, perversion or deterioration."  Id., at
543, 562 P. 2d, at 716.  The court concluded: "[W]hat our legislature
intended to include as an aggravating circumstance was a killing wherein
additional circumstances of the nature enumerated above set the crime apart
from the usual or the norm."  Ibid.
    The Gretzler court did not suggest that the Knapp definitions were
insufficient to guide the sentencer's discretion or that further narrowing
was required.  To the contrary, the court quoted these definitions with
approval and stated: "We believe that the statutory phrase `especially
heinous, cruel, or depraved' has been construed in a constitutionally
narrow fashion, and has been properly applied in individual cases.  A
summary of the law which has been developing in the area supports this
conclusion."  135 Ariz., at 50, 659 P. 2d, at 9.  In explaining what kinds
of murders properly would be regarded as "especially heinous . . . or
depraved," the court stated that "[i]n contrast to the emphasis upon the
victim's suffering and feelings in the case of cruelty, the statutory
concepts of heinous and depraved involve a killer's vile state of mind at
the time of the murder, as evidenced by the killer's actions.  Our cases
have suggested specific factors which lead to a finding of heinousness or
depravity."  Id., at 51, 659 P. 2d, at 10.  Next, drawing on examples from
prior Arizona cases, the court identified five factors the presence of
which would indicate that a particular killing was "especially heinous . .
. or depraved."  These factors were (1) "the apparent relishing of the
murder by the killer," (2) "the infliction of gratuitous violence on the
victim," (3) "the needless mutilation of the victim," (4) "the
senselessness of the crime," and (5) "the helplessness of the victim."
Id., at 52, 659 P. 2d, at 11.  Finally, the court noted: "[W]here no
circumstances, such as the specific factors discussed above, separate the
crime from the `norm' of first degree murders, we will reverse a finding
that the crime was committed in an `especially heinous, cruel, or depraved
manner.' "  Id., at 53, 659 P. 2d, at 12 (emphasis added).
    The Arizona Supreme Court's opinion in Gretzler obviously did not
announce a "narrowing construction" of the F6 circumstance.  The court did
not suggest that the standards previously applied were inadequate, or that
further constraints on the sentencer's discretion were essential.  Instead,
the Arizona Supreme Court cited the Knapp defi nitions with approval and
then gave examples of their application.  No matter how vaguely defined an
aggravating circumstance is, there will be a finite number of cases in
which that circumstance has been applied.  It hardly limits the application
of that aggravating factor to list those prior decisions, or to provide
illustrative examples from among them.  I do not see how the Arizona
Supreme Court's description of the manner in which a vague aggravating
factor has been applied can be regarded as the establishment of a
constitutionally sufficient narrowing construction.
    Nor did the Gretzler court narrow the discretion of future sentencers
simply by grouping its prior decisions into categories.  The use of
categories could serve to guide the sen tencer if (a) the categories
themselves are narrow enough that a significant number of homicides will
not fall within any of them, and (b) the court indicates that a murder is
covered by the aggravating circumstance only if it falls within one of the
enumerated categories.  The Arizona Supreme Court's decision in Gretzler
satisfies neither of these criteria.  Most first degree murders will fall
within at least one of the five categories listed in Gretzler--hardly a
surprising result, since the Gretzler categories were simply descriptive of
the prior period during which the Knapp definitions had governed the
application of this aggravating factor.  Since Gretzler, moreover, the
Arizona Supreme Court has continued to identify additional circumstances
that will support the conclusion that a particular murder is "especially
heinous . . . or depraved."  That fact is also unsurprising.  The court in
Gretzler did not purport to lay down rules for the future; it simply
summarized prior case law, and indicated that an F6 finding would be proper
when "circumstances, such as the specific factors discussed above, separate
the crime from the `norm' of first degree murders."  Id., at 53, 659 P. 2d,
at 12 (emphasis added).
    The majority does not contend that the Knapp definitions furnished
constitutionally sufficient guidance to capital sen tencers in Arizona
prior to Gretzler.  Just as a reasonable sentencer might conclude that
every first degree murder is "especially heinous, cruel or depraved," see
n. 4, supra, a reasonable judge could surely believe that all such killings
are "hatefully or shockingly evil" or "marked by debasement, corruption,
perversion or deterioration."  {5}  Yet the majority apparently concludes
that the Arizona Supreme Court cured the constitutional infirmity by
summarizing its prior decisions, reiterating with approval the
constitutionally deficient construction relied on previously, and pledging
to follow the same approach in the future. {6}
    The majority undertakes no close examination of Gretzler or of other
Arizona cases, prior or subsequent.  It makes no attempt to explain how the
Arizona Supreme Court's construction of the terms "especially heinous . . .
or depraved" can be said to satisfy the constitutional requirements
announced in this Court's prior decisions.  Indeed, the ma jority's
conclusion that the Arizona court has satisfactorily limited the reach of
the statutory language is supported by no analysis at all.  The Court
instead relies on the asser- tion that "we resolved any doubt about the
matter in Walton v. Arizona, ante, p. ----, where we upheld, against a
vagueness challenge, the precise aggravating circumstance at issue in this
case."  Ante, at 12. {7}  The majority's claim that Walton involves "the
precise aggravating circumstance at issue in this case," however,
fundamentally misrepresents the operation of the Arizona statute.
    The Arizona Supreme Court consistently has asserted that the terms
"heinous," "cruel," and "depraved" "are considered disjunctive; the
presence of any one of three factors is an aggravating circumstance."
State v. Beaty, 158 Ariz. 232, 242, 762 P. 2d 519, 529 (1988), cert.
denied, ---- U. S. ---- (1989).  It is therefore more accurate to
characterize the F6 circumstance as three aggravating factors than as one.
{8}  In Walton, the Arizona Supreme Court, in determining that the F6
factor had been established, relied primarily on the conclusion that the
murder was especially cruel.  Although the court also indicated that the
murder was especially depraved, it stated clearly that this conclusion was
not necessary to its finding of the F6 circumstance.  See 159 Ariz., at
587-588, 769 P. 2d, at 1033-1034 ("The clear evidence of cruelty is
sufficient to sustain the trial judge's finding of that aggra vating
factor, but we believe that the evidence also supports the finding of
depravity").  In affirming Jeffrey Walton's death sentence today, this
Court also focuses its attention on the constitutional sufficiency of the
Arizona Supreme Court's construction of "cruelty."  The Court concludes:

"Recognizing that the proper degree of definition of an aggravating factor
of this nature is not susceptible of mathematical precision, we conclude
that the definition given to the `especially cruel' provision by the
Arizona Supreme Court is constitutionally sufficient because it gives
meaningful guidance to the sentencer.  Nor can we fault the state court's
statement that a crime is committed in an especially `depraved' manner when
the perpetrator `relishes the murder, evidencing debasement or perversion,'
or `shows an indifference to the suffering of the victim and evidences a
sense of pleasure' in the killing."  Ante, at ---- (emphasis added).


    In the present case, however, the adequacy of the Arizona Supreme
Court's construction of "cruelty" is not at issue.  That court expressly
found that Jeffers' crime was not "es pecially cruel"; its affirmance of
the death sentence was based entirely on the conclusion that this murder
was especially "heinous" and "depraved."  In stating that Arizona has
placed constitutionally sufficient limits on the State's "especially
heinous . . . or depraved" aggravating factor, today's majority therefore
is not in a position to rely, and cannot rely, on either the holding or the
analysis of Walton.  Rather, the majority relies entirely on the italicized
sentence quoted above--the only sentence in the Walton opinion that
discusses the Arizona Supreme Court's construction of the word "depraved."
That sentence is wholly gratuitous: the Arizona Supreme Court's holding in
Walton, and this Court's affirmance, do not depend upon a determination
that Walton's crime was "especially . . . depraved."  The opinion in
Walton, moreover, makes no effort whatsoever to justify its suggestion that
the state court's construction of "depravity" is sufficient to meet
constitutional standards.
    I think it is important that we be frank about what is happening here.
The death penalty laws of many States establish aggravating circumstances
similar to the one at issue in this case. {9}  Since the statutory language
defining these factors does not provide constitutionally adequate guidance,
the constitutionality of the aggravating circumstances necessarily depends
on the construction given by the State's highest court.  We have expressed
apparent approval of a limiting construction requiring "torture or serious
physical abuse."  Maynard v. Cartwright, 486 U. S. 356, 365 (1988).  This
Court has not held that this is the only permissible construction of an
aggravating circumstance of this kind, but prior to today we have never
suggested that the aggravating factor can permissibly be construed in a
manner that does not make reference to the suffering of the victim.  The
decision today will likely result in the execution of numerous inmates, in
Arizona  {10} and elsewhere, who would not otherwise be put to death.  Yet
neither in this case nor in Walton has the Court articulated any argument
in support of its decision.  Nor has the majority undertaken any
examination of the way in which this aggravating circumstance has been
applied by the Arizona Supreme Court.  Instead, the Court relies on a
conspicuous bootstrap.  Five Members have joined the majority opinion in
Walton, which in a single sentence asserts without explanation that the
majority cannot "fault" the Arizona Supreme Court's construction of the
statutory term "depraved."  In the present case the same five Members
proclaim themselves to be bound by this scrap of dictum.  In any context
this would be a poor excuse for constitutional adjudication.  In a capital
case it is deeply disturbing.
    It is to some degree understandable that the majority chooses to rely
exclusively on the brief and passing dictum in Walton.  Had the Court
examined the range of homicides which the Arizona Supreme Court has held to
be "especially heinous . . . or depraved," it could not plausibly have
argued that the state court has placed meaningful limits on the ap
plication of this aggravating circumstance.  The dissent in Walton explains
in some detail the reasons for its conclu- sion that this aggravating
factor, as defined by the Arizona Supreme Court, fails to satisfy
constitutional requirements.  Ante, at ----.  The United States Court of
Appeals for the Ninth Circuit, sitting en banc, after exhaustive analysis
of the relevant state precedents, also concluded that the "es pecially
heinous . . . or depraved" circumstance is uncon stitutionally vague.  See
Adamson v. Ricketts, 865 F. 2d, at 1031-1039.  There is no need to
reiterate these arguments here.  It is sufficient to note that neither this
Court nor the Arizona Supreme Court has attempted to refute that analysis.
    Indeed, the constitutional defects in the Arizona Supreme Court's
application of the F6 circumstance are illustrated by the state court's
conclusion that respondent "relished" the murder, and that this factor
supports a finding that the killing was "especially heinous . . . or
depraved."  The court based its conclusion on testimony indicating that
respondent struck the victim several times after she appeared to be dead,
that while striking her he called her a "bitch" and a "dirty snitch," and
that with each striking blow he said, "This one is for ----," naming
several of his friends on whom the victim had informed to the police.  135
Ariz., at 430, 661 P. 2d, at 1131.  The Arizona Supreme Court did not
explain precisely what it meant by saying that the respondent "relished"
his crime.  But the evidence does not suggest that Jeffers killed for the
sake of killing or found some intrinsic pleasure in the act of murder.
Rather, the evidence indicates that respondent killed out of hatred for a
particular individual and a desire for revenge.  There is a difference.
    It may be that a State could rationally conclude that a murder
committed out of personal hatred is more reprehensible than is a killing
committed for other reasons. {11}  But the State of Arizona cannot be said
to have arrived at any such conclusion.  The Arizona Supreme Court has also
held that a murder is "especially heinous . . . or depraved" if it is
committed to eliminate a witness, see State v. Correll, 148 Ariz. 468, 481,
715 P. 2d 721, 734 (1986); State v. Gillies, 142 Ariz. 564, 570, 691 P. 2d
655, 661 (1984), cert. denied, 470 U. S. 1059 (1985); State v. Smith, 141
Ariz. 510, 511-512, 687 P. 2d 1265, 1266-1267 (1984), or if it is
"senseless," see Gretz- ler, 135 Ariz., at 52, 659 P. 2d, at 11-12; and the
statute it- self provides that it shall be an aggravating circumstance if
the murder is committed for pecuniary gain.  See Ariz. Rev. Stat. Ann. MDRV
13-703F.5 (1989). {12}  The Arizona Supreme Court has also identified other
blameworthy motives which, in the court's view, suggest that a murder is
"especially heinous . . . or depraved."  {13}  Taken together, the
decisions of the Arizona Supreme Court hold that a murder will be deemed
especially blameworthy if it is committed for virtually any reason, or for
no reason at all.
    The Arizona Supreme Court's decisions dealing with es pecially improper
motives are symptomatic of a larger pattern in that court's construction of
the F6 circumstance.  At least since Gretzler, the court has generally
avoided the error of simply recounting the events surrounding a particular
crime and then announcing, in conclusory fashion, that the murder was
"especially heinous . . . or depraved."  Rather, the court typically
identifies specific factors to support its conclusion that the aggravating
circumstance has been es tablished.  And if any one decision is examined in
isolation, it may appear that the state court has narrowly construed the F6
circumstance in a manner that satisfies constitutional requirements.  The
problem is that the Arizona Supreme Court has identified so many such
factors, and has shown itself so willing to add new factors when a
perceived need arises, that the body of its precedents places no meaningful
limitations on the application of this aggravating circumstance. {14}  The
constitutional infirmity of the court's approach cannot be recognized
through examination of any one opinion.  It becomes very apparent upon
examination of the relevant decisions taken as a whole.  Unfortunately, the
inquiry required for an informed assessment of the Arizona Supreme Court's
application of this aggravating factor is one that this Court simply
refuses to undertake.

II
    The majority devotes most of its energy arguing that a federal habeas
court, having concluded that a State has adopted a constitutionally
sufficient limiting construction of an aggra vating circumstance, largely
should refrain from engaging in case-specific comparisons between the
homicide under review and prior decisions in which the aggravating factor
has been found.  The Court concludes that since a rational fact finder
could have determined that respondent "relished" the murder and engaged in
"gratuitous violence," the death sentence must be allowed to stand.  I
concede that respondent's crime was not plainly distinguishable from the
other murders that the Arizona Supreme Court has found to be "especially
heinous . . . or depraved."  Indeed, my conclusion could hardly be
otherwise: having argued that the F6 circumstance has been construed so
broadly as to cover virtually every first degree murder, I could scarcely
contend that the court's finding in this case was bizarre or aberrational.
I, however, do have some brief observations concerning the role of federal
habeas courts in reviewing state-court findings of aggravating
circumstances.
    (1) I think that the majority is wrong in arguing that a state court's
application of a valid aggravating circumstance involves a question of
state law only.  See ante, at 15.  The statutory aggravating circumstances
do perform the state- law function of determining who will be sentenced to
death.  But the aggravating factors also perform the distinct function of
determining which murderers are eligible for the death penalty as a matter
of federal law.  See Zant v. Stephens, 462 U. S. 862, 878 (1983)
("statutory aggravating circumstances play a constitutionally necessary
function at the stage of legislative definition: they circumscribe the
class of persons eligible for the death penalty"); Lowenfield v. Phelps,
484 U. S. 231, 244 (1988).  That point is particularly clear in cases like
the present one, where the F6 circumstance is the only aggravating factor
that the Arizona Supreme Court found to exist.  If the state court erred in
its determination that this aggravating circumstance had been proved, that
error is of federal constitutional significance: the defendant who claims
that no aggravating factor has been established is contending that the
Eighth Amendment (and not simply state law) prohibits his execution. {15}
    (2) As the majority points out, under 28 U. S. C. MDRV 2254(d) "federal
courts in habeas corpus proceedings must generally accord a presumption of
correctness to a state court's factual findings."  Ante, at 17 (emphasis
added).  The presumption of correctness does not apply, however, if the
habeas petitioner demonstrates "that the factfinding procedure employed by
the State court was not adequate to afford a full and fair hearing."  28 U.
S. C. MDRV 2254(d)(2). {16}  In the pres- ent case the trial-level
sentencing procedure was conducted under a clearly unconstitutional scheme.
See n. 5, supra.  The relevant factfinder is therefore the Arizona Supreme
Court, as the majority appears to acknowledge.  See ante, at 18 (arguing
that "a federal court should adhere to the Jackson standard even when
reviewing the decision of a state appellate court that has independently
reviewed the evidence").  This Court has held that the general presumption
of correctness mandated by 28 U. S. C. MDRV 2254(d) is applicable to the
factual findings of state appellate courts.  Sumner v. Mata, 449 U. S. 539,
545-547 (1981).  The Court has also recognized, however: "[T]here might be
instances . . . in which the presumption would not apply to appellate
factfinding . . . because appellate factfinding procedures were not
`adequate,' see 28 U. S. C. MDRV 2254(d)(2).  For example, the question . .
. might in a given case turn on credibility determinations that could not
be accurately made by an appellate court on the basis of a paper record."
Cabana v. Bullock, 474 U. S. 376, 388, n. 5 (1986).
    Indeed, in the present case the inadequacy of the Arizona Supreme
Court's procedure goes beyond the fact that the court did not see the
witnesses and was forced to rely upon a paper record.  At the times of
respondent's trial and sentencing hearing, and even when his appellate
briefs were submitted and oral argument conducted, respondent had no reason
to believe that the sentencer would attach particular importance to its
conclusion that the defendant had "relished" the killing and inflicted
"gratuitous violence" on the victim after her death. {17}  The Arizona
Supreme Court's opinion in Gretzler was issued 18 days prior to its
decision in Jeffers' case--far too late for Jeffers to submit evidence or
argument regarding the presence of the Gretzler factors.
    In the present case there appears to be no dispute re garding the
primary facts underlying the Arizona Supreme Court's finding of the F6
circumstance.  That is, respondent apparently does not deny that he struck
the victim after she was dead or that he cursed her while doing so.  But if
there were a conflict in the testimony regarding this point, I would not
regard the Arizona Supreme Court's factfinding procedures as "adequate" to
resolve that conflict.
    (3) In determining that Jeffers "relished" his crime and inflicted
"gratuitous violence" on the victim, the Arizona Su preme Court did not
simply apply determinate standards to a new set of facts.  Rather, the
assertion that the respondent "relished" the killing of Penelope Cheney
said as much about the court's understanding of the word "relish" as it did
about Jeffers' state of mind at the time of the murder.  Thus, despite the
prior Ninth Circuit decision holding that the F6 circumstance had been
adequately narrowed, the federal court could not properly limit itself to
the question whether a rational factfinder might conclude that Jeffers
"relished" the killing or employed "gratuitous violence."  Rather, the
habeas court had both the right and the duty to ask whether the Arizona
Supreme Court's construction of the F6 circumstance remained adequate to
satisfy the Constitution in light of its application to the case at hand.
Thus, the habeas court's review in cases of this kind necessarily involves
a comparison between the case under review and prior state- court decisions
applying the aggravating factor--not as a means of determining whether the
state court "incorrectly" applied its construction of the statutory terms,
but as a means of determining whether the state court's application of its
construction to the instant case expands the scope of the aggravating
factor in such a way as to make a previously valid limiting construction
unconstitutionally broad.
    (4) Indeed, I think that a comparative approach is necessary no matter
what standard of review the habeas court employs.  Even if the state
court's finding is reviewed under a "rational factfinder" standard, the
majority is wrong to say that the Court of Appeals erred in comparing
Jeffers' crime to other cases in which the F6 factor was established.
Words like "relish" may be somewhat more precise than are "heinous" and
"depraved," but they still are of less than crystalline clarity.  A court
attempting to apply the Jackson standard must ask whether a rational
factfinder could believe that Jeffers "relished" the crime as that term has
been construed by the Arizona Supreme Court.  If the Arizona Su preme Court
had used the word "relish" to mean one thing in each of its other
decisions, and something very different in Jeffers' case, its application
to Jeffers would be arbitrary-- even if both meanings could be found in a
given dictionary.  If the Court of Appeals departed from the "rational fact
finder" standard here, it was by requiring too close a correlation between
this case and others, not simply by employing a comparative approach.
    Suppose, for example, that the Arizona Supreme Court had consistently
construed the F6 circumstance as requir- ing "physical abuse," but had
found that standard satis- fied only in cases where the killer subjected
the victim to prolonged, severe physical suffering.  Presumably that
construction would be valid.  See Maynard v. Cartwright, 486 U. S., at 365.
Suppose that the court in a subsequent case found that the F6 factor had
been proved when the defendant slapped the victim once and then shot him
dead.  The defendant, on federal habeas, could raise two related but
distinct challenges.  First, the defendant might argue that no reasonable
factfinder could conclude that a single slap constituted "physical abuse"
as that term had previously been construed by the Arizona Supreme Court.
(This would amount to a contention that the state court had misapplied its
own rule.)  Alternatively, the defendant might argue that "physical abuse"
could no longer be deemed an adequate limiting construction if that phrase
was construed as including a single slap.  However the challenge was
framed, though, the habeas court could not limit itself to the question
whether a rational factfinder could conclude that the slap fell within some
plausible definition of "physical abuse."

III
    The majority's discussion of the way in which a federal habeas court
should review the application of a valid aggra vating circumstance to the
facts of a particular case seems to me to be flawed in significant
respects.  My principal disagreement, however, is with the Court's
insistence on addressing the issue.  The majority makes no effort to
justify its holding that the Arizona Supreme Court has placed
constitutionally sufficient limitations on its "especially hei- nous . . .
or depraved" aggravating circumstance.  Instead the Court relies entirely
on a sentence of dictum from today's opinion in Walton--an opinion which
itself offers no rationale in support of the Court's conclusion.  The
dissenting opinion in Walton notes the Court's increasing tendency to
review the constitutional claims of capital defendants in a perfunctory
manner, but the Court's action in this case goes far beyond anything that
is there observed.
    I dissent.

 
 
 
 
 


------------------------------------------------------------------------------
1
    The F6 circumstance applies when the sentencer finds that "[t]he
defendant committed the offense in an especially heinous, cruel or depraved
manner."  In the present case, the Arizona Supreme Court found that cruelty
had not been proved because "[t]here was no evidence that the victim
suffered any pain."  State v. Jeffers, 135 Ariz. 404, 429, 661 P. 2d 1105,
1130 (1983).  The court did find that the murder was "heinous" and
"depraved," and the adequacy of that finding is the issue in this case.
The Arizona Supreme Court disagreed with the trial court's determination
that Jeffers had "knowingly created a grave risk of death to another person
or persons in addition to the victim of the offense," Ariz. Rev. Stat. Ann.
MDRV 13-703F.3 (1989).  See 135 Ariz., at 428-429, 661 P. 2d, at 1129-1130.
Consequently, Jeffers' sentence of death rests entirely on the F6 factor.
2
    Eleven judges sat on the en banc panel in Adamson.  Seven judges
concluded that none of the three terms ("heinous," "cruel," or "depraved")
in the F6 circumstance had been construed by the Arizona Supreme Court in a
manner that satisfied constitutional requirements.  865 F. 2d, at 1036.
The other four judges argued that the state court had announced a satis
factory construction of the word "cruel"; these four declined to express a
view as to the adequacy of the Arizona Supreme Court's application of the
terms "heinous" and "depraved."  Id., at 1058 (opinion concurring and
dissenting).

3
    Petitioner contends that Jeffers is not entitled to argue in this Court
that the Arizona Supreme Court has failed to articulate a constitutionally
sufficient limiting construction of the F6 circumstance.  Petitioner argues
that the point has been waived, since the Ninth Circuit panel ruled against
respondent on this claim and Jeffers did not seek rehearing or cross
petition for certiorari.  Reply Brief for Petitioner 4.  The majority
correctly (though silently) rejects this proposition.  There is no basis
for the suggestion that respondent should have sought rehearing at the
Court of Appeals, or filed a cross petition here, after he prevailed below.
It is well established that respondent may defend the judgment of the Court
of Appeals on any ground supported by the record.  See, e. g., Smith v.
Phillips, 455 U. S. 209, 215, n. 6 (1982).

4
    No such contention would be plausible.  In Godfrey the plurality,
considering Georgia's "outrageously or wantonly vile, horrible or inhuman"
aggravating circumstance, concluded that "[t]here is nothing in these few
words, standing alone, that implies any inherent restraint on the arbitrary
and capricious infliction of the death sentence.  A person of ordinary sen
sibility could fairly characterize almost every murder as `outrageously or
wantonly vile, horrible and inhuman.' "  446 U. S., at 428-429.  In Maynard
v. Cartwright, 486 U. S. 356 (1988), the Court considered Oklahoma's
"especially heinous, atrocious, or cruel" aggravating factor.  It
unanimously concluded: "[T]he language of the Oklahoma aggravating
circumstance at issue . . . gave no more guidance than the `outrageously or
wantonly vile, horrible or inhuman' language that the jury returned in its
verdict in Godfrey."  Id., at 363-364.  The statutory language here is no
more precise.

5
    In 1980, when respondent was sentenced to death by the trial judge, the
Arizona Supreme Court had provided no guidance in the application of the F6
circumstance beyond the definitions quoted in Knapp.  Respondent's
trial-level sentencing procedure was therefore conducted under an invalid
scheme, and I would affirm the judgment below on that ground even if I
believed that the Arizona Supreme Court had subsequently announced a valid
limiting construction of this aggravating factor.  See Clemons v.
Mississippi, ---- U. S. ---- - ---- (1990) (dissenting opinion) (slip op.
7-19).

6
    In describing the kinds of murders that will qualify as "especially
heinous . . . or depraved," the Arizona Supreme Court has continued to
employ the formulations relied upon in Knapp.  See, e. g., State v. Fulmi
nante, 161 Ariz. 237, 254-255, 778 P. 2d 602, 619-620 (1988) (quoting Knapp
definitions), cert. granted, ---- U. S. ---- (1990); State v. Beaty, 158
Ariz. 232, 242, 762 P. 2d 519, 529 (1988) (same), cert. denied, ---- U. S.
---- (1989); State v. Poland, 144 Ariz. 388, 405, 698 P. 2d 183, 200 (1985)
(same); State v. Johnson, 147 Ariz. 395, 401, 710 P. 2d 1050, 1056 (1985)
(F6 finding is appropriate in cases where the killer "acted in such a
fashion that his acts set him apart from the `norm' of first degree
murderers").

7
    The majority also places peculiar emphasis on the Court of Appeals'
conclusion that the F6 aggravating factor, as construed by the Arizona
Supreme Court, is not unconstitutionally vague.  See ante, at 12.  It is
most unusual for this Court to show deference to the legal conclusion of a
Court of Appeals, particularly a conclusion made in the decision under
review.  And it is simply perverse for this Court to rely upon a Court of
Appeals decision for a proposition that is no longer good law within the
Circuit.  The majority inexplicably neglects to mention that the panel's
conclusion on this point has been superseded by the decision of the en banc
court in Adamson v. Ricketts, in which all seven judges who expressed a
view on the question concluded that the Arizona Supreme Court had failed to
articulate a constitutionally sufficient narrowing construction of the
terms "heinous" and "depraved."

8
    It might be even more accurate to say that the F6 aggravating
circumstance includes two distinct concepts: (1) cruelty and (2)
heinousness/de pravity.  The Arizona Supreme Court has made only the most
superficial effort to explain the difference between a murder that is
"heinous" and a murder that is "depraved."  See Adamson v. Ricketts, 865 F.
2d, at 1034-1035, n. 38.

9
    One commentator has stated: "Twenty-four states permit imposition of
the death penalty based on a finding that the murder was, in some ill-
defined way, worse than other murders.  The states use a variety of terms
to denote this aggravating circumstance, with most statutes containing,
either alone or in some combination, the terms `especially heinous,
atrocious, or cruel,' `depravity of mind,' or `outrageously vile wanton or
in human.'  These aggravating circumstances . . . have generated more
controversy than any other aggravating circumstance.  Commentators have
universally criticized them as vague, overbroad, and meaningless."  Rosen,
The "Especially Heinous" Aggravating Circumstance in Capital Cases--The
Standardless Standard, 64 N. C. L. Rev. 941, 943-944 (1986) (footnotes
omitted).

10
    In addition to the present case, on at least 12 occasions the Arizona
Supreme Court has found that a particular murder was especially heinous
and/or depraved but not especially cruel.  See State v. Ceja, 126 Ariz. 35,
39-40, 612 P. 2d 491, 495-496 (1980); State v. Clark, 126 Ariz. 428,
436-437, 616 P. 2d 888, 896-897, cert. denied, 449 U. S. 1067 (1980); State
v. Bishop, 127 Ariz. 531, 534, 622 P. 2d 478, 481 (1980); State v. Tison,
129 Ariz. 546, 555, 633 P. 2d 355, 364 (1981), cert. denied, 459 U. S. 882
(1982); State v. Ortiz, 131 Ariz. 195, 210, 639 P. 2d 1020, 1035 (1981),
cert. denied, 456 U. S. 984 (1982); State v. Woratzeck, 134 Ariz. 452, 457,
657 P. 2d 865, 870 (1982); State v. Zaragoza, 135 Ariz. 63, 69, 659 P. 2d
22, 28, cert. denied, 462 U. S. 1124 (1983); State v. Harding, 137 Ariz.
278, 294, 670 P. 2d 383, 399 (1983), cert. denied, 465 U. S. 1013 (1984);
State v. Fisher, 141 Ariz. 227, 252, 686 P. 2d 750, 775, cert. denied, 469
U. S. 1066 (1984); State v. Villafuerte, 142 Ariz. 323, 331, 690 P. 2d 42,
50 (1984), cert. denied, 469 U. S. 1230 (1985); State v.
Martinez-Villareal, 145 Ariz. 441, 450-451, 702 P. 2d 670, 679-680, cert.
denied, 474 U. S. 975 (1985); State v. Wallace, 151 Ariz. 362, 367-368, 728
P. 2d 232, 237-238 (1986), cert. denied, 483 U. S. 1011 (1987).  In four
cases besides the present one, that has been the only aggravating
circumstance.  See State v. Ceja, supra; State v. Bishop, supra; State v.
Villafuerte, supra; State v. Wallace, supra.

11
    The identification of particularly blameworthy motives for murder would
seem, however, to be more appropriately a task for the legislature than for
the State's judiciary.  See Rosen, 64 N. C. L. Rev., at 990-991.  The
codification of an aggravating factor as vaguely defined as the F6
circumstance is in essence an act of legislative abdication, since it
requires the state courts to make fundamental policy choices under the
guise of "interpreting" the statute.

12
    The Arizona Supreme Court has construed this aggravating factor as
applying whenever "the expectation of financial gain was a cause of the
murders."  State v. Clark, 126 Ariz., at 436, 616 P. 2d, at 896.  The court
in Clark rejected the specially concurring Justice's position, id., at 437,
616 P. 2d, at 897, that this aggravating circumstance applied only to
murders committed by hired killers.

13
    See State v. Martinez-Villareal, 145 Ariz., at 451, 702 P. 2d, at 680
(murder to demonstrate "manliness" reflects "a manifest disregard for the
fundamental principles upon which our society is based"); State v. McCall,
139 Ariz. 147, 162, 677 P. 2d 920, 935 (1983) (F6 finding supported in part
by the fact that the mutilation of the victims' bodies "was designed to be
a `message' to warn other people"), cert. denied, 467 U. S. 1220 (1984).

14
    A State might reasonably conclude that a murder is especially
reprehensible if the victim is 10 years old (because a child is physically
vulnerable and has most of his life ahead of him); or 75 years old (because
of the respect traditionally accorded to the elderly); or 40 years old
(because a person of that age is likely to have others dependent upon him
for support).  A cogent argument could also be made that the killing of a
21- or 55-year- old victim is especially blameworthy.  But while none of
these choices would be unreasonable, the State, with a statute of this
kind, must choose.  If the state court invoked first one argument and then
the other, and ultimately found in virtually every case that the age of the
victim made the murder "especially heinous . . . or depraved," the
aggravating circumstance would be too broad.
    Under the approach developed by the majority here and in Walton,
however, the Arizona Supreme Court with impunity could apply its
aggravating circumstance in just such a fashion.  If the state court held
that the youth of the victim made a particular murder "especially heinous .
. . or depraved," this Court presumably would assert that such a
construction narrowed the application of the aggravating factor in a manner
that satisfied constitutional standards.  And if the defendant cited
decisions in which the same state court had held that other murders were
"especially heinous . . . or depraved" because the victim was 21, 40, 55,
or 75 years old, this Court apparently would refuse to read the cases on
the ground that the defendant was not entitled to "challeng[e] the
proportionality review of the Arizona Supreme Court."  See ante, at 14
(quoting Walton, ante, at ----).

15
    Similarly, the Eighth Amendment prohibits the imposition of a capital
sentence unless the defendant is found to have killed, attempted to kill,
or intended that a killing take place.  Enmund v. Florida, 458 U. S. 782
(1982).  It may be that the laws of many States require a similar finding.
But the adequacy of the procedure by which that finding is made is a
question of federal as well as state law.

16
    The presumption of correctness is also inapplicable if "the mate- rial
facts were not adequately developed at the State court hearing," MDRV
2254(d)(3), or if "the applicant did not receive a full, fair, and adequate
hearing in the State court proceeding."  MDRV 2254(d)(6).

17
    The Arizona Supreme Court in Gretzler summarized prior Arizona
decisions in support of its conclusion that the F6 circumstance would be
established if the murderer "relished" the killing or employed "gratuitous
violence."  But those prior decisions did not use the terms "relish" or
"gratuitous violence"; for the most part, they simply recounted the facts
of the case and then concluded that the murder was "especially cruel . . .
or depraved."  Prior to the decision in Gretzler, Jeffers had no notice
that the Gretzler factors would be accorded any particular significance in
determining whether the F6 factor had been established.
