Subject: SAWYER v. SMITH, 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



SAWYER v. SMITH, INTERIM WARDEN


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

No. 89-5809.  Argued April 25, 1990--Decided June 21, 1990

Petitioner Sawyer's conviction and death sentence for a brutal murder
became final in 1984.  The Federal District Court denied his habeas corpus
petition, which was based in relevant part on the argument that the
prosecutor's closing argument during the penalty phase of his trial
diminished the jury's sense of responsibility for the capital sentencing
decision, in violation of this Court's 1985 decision in Caldwell v.
Mississippi, 472 U. S. 320.  While his appeal of the denial of habeas
relief was pending, this Court decided Teague v. Lane, 489 U. S. 288, under
which a new rule of constitutional law established after a petitioner's
convic- tion has become final may not be used to attack the conviction on
federal habeas corpus unless the rule (1) places an entire category of
primary conduct beyond the reach of criminal law, id., at ----, or
prohibits imposition of a certain type of punishment for a class of
defendants because of their status or offense, see Penry v. Lynaugh, 492 U.
S. ----, ----, or (2) applies a new watershed rule of criminal procedure
that enhances accuracy and is necessary to the fundamental fairness of the
criminal proceeding, 489 U. S., at ----.  The Court of Appeals affirmed the
denial of relief, holding that Caldwell announced a new rule within the
meaning of Teague and did not fall within Teague's second exception.

Held: Petitioner is not entitled to federal habeas relief, because Caldwell
announced a new rule, as defined by Teague, that does not come within
either of the Teague exceptions.  Pp. 5-16.

    (a) Caldwell's result was not dictated by Eighth Amendment prece dent
existing at the time petitioner's conviction became final.  No case prior
to Caldwell invalidated a prosecutorial argument as impermissible under the
Eighth Amendment.  The discussion of improper prosecutorial comment in
Donnelly v. DeChristoforo, 416 U. S. 637, a noncapital murder case, was
based on the Due Process Clause's guarantees of fundamental fairness, not
the Eighth Amendment's more particular guarantees of sentencing
reliability.  Eddings v. Oklahoma, 455 U. S. 104; Lockett v. Ohio, 438 U.
S. 586; Gardner v. Florida, 430 U. S. 349; and Woodson v. North Carolina,
428 U. S. 280, earlier Eighth Amendment cases, spoke to the general issue
of sentencing reliability but not to the issue decided in Caldwell, and
Teague would be meaningless if applied at such a level of generality.  In
1984, from a state court's point of view, there were indications that
Caldwell was not an Eighth Amendment requirement, see California v. Ramos,
463 U. S. 992; Maggio v. Williams, 464 U. S. 46, and there was some doubt
as to this Court's view concerning a major premise of Caldwell, that
misleading prosecutorial comment might cause a bias in favor of death
sentences, see Dobbert v. Florida, 432 U. S. 282, 294, and n. 7.  It cannot
be said that state cases were anticipating the Caldwell rule when they
prohibited similar prosecutorial statements, because their decisions were
based on state law and did not purport to construe the Eighth Amendment.
Reliance on these cases misapprehends the function of federal habeas
relief, which serves to ensure that state convictions comport with
established fed- eral law at the time a petitioner's conviction becomes
final.  To the extent that post-Caldwell Louisiana cases reflect state
court recognition that general Eighth Amendment principles pointed toward
adoption of a Caldwell rule, or that Caldwell is congruent with preexisting
state law, they cannot serve to show that Caldwell was dictated by this
Court's Eighth Amendment precedents, since courts can be expected to apply
principles announced in prior Eighth Amendment decisions that are
susceptible to debate among reasonable minds.  Petitioner's argument that
state courts would not have provided protection against misleading
prosecutorial comment unless they had been compelled to do so by federal
precedent and the threat of federal habeas review is premised on a
skepticism of state courts that this Court declines to endorse.  Pp. 5-13.

    (b) Caldwell does not come within either of the Teague exceptions.  The
first exception has no applicability here.  Petitioner's argument that the
second exception should be read to include new rules of capital sentencing
that preserve the accuracy and fairness of judgments looks only to the
first half of the exception's definition.  To qualify under Teague, a rule
must not only improve the accuracy of trial; it must also be essential to
the fairness of the proceeding.  There would be no limit to the second
exception if it were to be recast as suggested by petitioner, since almost
all Eighth Amendment jurisprudence concerning capital sentencing is
directed toward the enhancement of reliability or accuracy in some sense.
Caldwell is a systemic rule designed as an enhancement of the accuracy of
capital sentencing.  However, this measure of protection against error in
the context of capital sentencing was added to the already existing due
process guarantee of fundamental fairness afforded by Donnelly, supra.
"[T]he only defendants who need to rely on Caldwell rather than Donnelly
are those who must concede that the prose cutorial argument in their case
was not so harmful as to render their sentencing trial `fundamentally
unfair.' "  881 F. 2d, at 1293.  Thus, it cannot be said that Caldwell is
the type of absolute prerequisite to fundamental fairness that may come
within Teague's second exception.  Cf., e. g., Dugger v. Adams, 489 U. S.
401.  Pp. 13-16.

881 F. 2d 1273, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J.,
and White, O'Connor, and Scalia, JJ., joined.  Marshall, J., filed a
dissenting opinion, in which Brennan, J., joined; in which Blackmun, J.,
joined as to Parts I, II, III, and IV; and in which Stevens, J., joined as
to Parts I, II, and III.

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




Subject: 89-5809--OPINION, SAWYER v. SMITH

 


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. 89-5809



ROBERT SAWYER, PETITIONER v. LARRY SMITH, INTERIM WARDEN

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

[June 21, 1990]



    Justice Kennedy delivered the opinion of the Court.
    We must decide in this case whether a prisoner whose murder conviction
became final before our decision in Caldwell v. Mississippi, 472 U. S. 320
(1985), is entitled to use that de cision to challenge his capital sentence
in a federal habeas corpus action.  We hold that he cannot, for Caldwell
announced a new rule as defined by Teague v. Lane, 489 U. S. 288 (1989),
and the new rule does not come within Teague's exception for watershed
rules fundamental to the integrity of the criminal proceeding.

I
    Over 10 years ago, petitioner Robert Sawyer murdered Frances Arwood, a
visitor in the New Orleans, Louisiana, residence petitioner shared with his
girlfriend, Cynthia Shano.  On September 29, 1979, petitioner and his
accomplice Charles Lane arrived at the residence after a night of drinking.
They argued with Arwood, and accused her of giving drugs to Shano's
children.  For reasons that are not clear, petitioner and Lane struck
Arwood repeatedly with their fists and dragged her by the hair into the
bathroom.  There they stripped the victim naked, literally kicked her into
the bathtub, and subjected her to scalding, dunkings, and additional
beatings.  Petitioner left Lane to guard the victim, and apparently to rape
her, while petitioner went to the kitchen to boil water to scald her.
Petitioner kicked Arwood in the chest, causing her head to strike the tub
or a windowsill and rendering her unconscious.  The pair then dragged
Arwood into the living room, where they continued to beat and kick her.
Petitioner poured lighter fluid on the unconscious victim, particularly her
torso and genital area, and set the lighter fluid afire.  He told Lane that
he had done this to show "just how cruel he could be."  There were further
brutalities we do not recount.  Arwood later died of her injuries.
    Petitioner was convicted and sentenced to death for the crime by a
Louisiana jury in September 1980.  At issue in this case are remarks made
by the prosecutor in his closing argument during the sentencing phase of
the trial.  The prosecutor first stated, after discussing the proof of
aggravating circumstances under Louisiana law:

"The law provides that if you find one of those circumstances then what you
are doing as a juror, you yourself will not be sentencing Robert Sawyer to
the electric chair.  What you are saying to this Court, to the people of
this Parish, to any appellate court, the Supreme Court of this State, the
Supreme Court possibly of the United States, that you the people as a fact
finding body from all the facts and evidence you have heard in relationship
to this man's conduct are of the opinion that there are aggravating
circumstances as defined by the statute, by the State Legislature that this
is a type of crime that deserves that penalty.  It is merely a
recommendation so try as he may, if Mr. Weidner tells you that each and
every one of you I hope can live with your conscience and try and play upon
your emotions, you cannot deny, it is a difficult decision.  No one likes
to make those type of decisions but you have to realize if but for this
man's actions, but for the type of life that he has decided to live, if of
his own free choosing, I wouldn't be here presenting evidence and making
argument to you.  You wouldn't have to make the decision."  Tr. 982.


    After emphasizing the brutal nature of the crime for which they had
convicted petitioner, the prosecutor told the jury,

"There is really not a whole lot that can be said at this point in time
that hasn't already been said and done.  The decision is in your hands.
You are the people that are going to take the initial step and only the
initial step and all you are saying to this court, to the people of this
Parish, to this man, to all the Judges that are going to review this case
after this day, is that you the people do not agree and will not tolerate
an individual to commit such a heinous and atrocious crime to degrade such
a fellow human being without the authority and the impact, the full
authority and impact of the law of Louisiana.  All you are saying is that
this man from his actions could be prosecuted to the fullest extent of the
law.  No more and no less."  Id., at 984.


    Finally, the prosecutor emphasized again that the jury's decision would
be reviewed by later decisionmakers,

"It's all [you're] doing.  Don't feel otherwise.  Don't feel like you are
the one, because it is very easy for defense lawyers to try and make each
and every one of you feel like you are pulling the switch.  That is not so.
It is not so and if you are wrong in your decision believe me, believe me
there will be others who will be behind you to either agree with you or to
say you are wrong so I ask that you do have the courage of your
convictions."  Id., at 985.


    The Louisiana Supreme Court affirmed petitioner's conviction and
sentence.  Sawyer v. State, 422 So. 2d 95 (1982).  This Court granted
certiorari and remanded the case with instructions to the Louisiana Supreme
Court to reconsider its decision in light of Zant v. Stephens, 462 U. S.
862 (1983).  Sawyer v. Louisiana, 463 U. S. 1223 (1983).  The Louisiana
Supreme Court reaffirmed the capital sentence on remand, Sawyer v.
Louisiana, 442 So. 2d 1136 (1983).  His conviction and sentence became
final on April 2, 1984, when we denied certiorari, 466 U. S. 931.
Petitioner sought state collateral relief, which was denied.  Sawyer v.
Maggio; 479 So. 2d 360 (La. 1985); Sawyer v. Maggio, 480 So. 2d 313 (La.
1985).
    Petitioner then filed the federal habeas corpus petition now before us,
raising a host of constitutional claims.  Relevant here is petitioner's
claim that the prosecutor's closing argument violated the Eighth Amendment
of the United States Constitution by diminishing the jury's sense of
responsibility for the capital sentencing decision, in violation of our
decision in Caldwell v. Mississippi, 472 U. S. 320 (1985).  Caldwell was
decided over one year after petitioner's conviction became final.
    The District Court denied relief, concluding that the prosecutor's
remarks were of a different character from those in Caldwell, and that
there was no reasonable probability that the sentence would have been
different in the absence of the comments.  A divided panel of the Court of
Appeals for the Fifth Circuit affirmed.  848 F. 2d 582 (1988).  The panel
held that the facts in this case were "a far cry from those in Caldwell,"
in large part due to the absence of any judicial approval of the
prosecutor's comments.  Id., at 596.  Following the panel decision, the
Fifth Circuit granted rehearing en banc.  Id., at 606.
    After the en banc court heard oral argument, but while the case was
pending, we held in Teague v. Lane, 489 U. S. 288 (1989), that a rule of
constitutional law established after a petitioner's conviction has become
final may not be used to attack the conviction on federal habeas corpus
unless the rule falls within one of two narrow exceptions.  The Fifth
Circuit requested supplemental briefing from the parties on the question
whether Teague barred petitioner's claim for relief under Caldwell.  The en
banc court held that Caldwell announced a new rule within the meaning of
Teague, a rule not within Teague's second exception for watershed rules of
criminal procedure that guarantee the accuracy of a criminal proceeding.
Accordingly, the Court of Appeals affirmed the denial of habeas corpus
relief.  881 F. 2d 1273 (1989).
    We granted certiorari, 493 U. S. ---- (1990), to resolve a conflict
among the Courts of Appeals, see Hopkinson v. Shillinger, 888 F. 2d 1286
(CA10 1989), and now affirm.

II
    We must address first whether, in relying on Caldwell, petitioner
claims the benefit of a new rule, as defined by our decision in Teague.  In
Caldwell, we held that the Eighth Amendment prohibits the imposition of a
death sentence by a sentencer that has been led to the false belief that
the re sponsibility for determining the appropriateness of the defendant's
capital sentence rests elsewhere.  See 472 U. S., at 328-329; id., at 342
(opinion of O'Connor, J.).  We de termined that false information of this
type might produce "substantial unreliability as well as bias in favor of
death sentences."  Id., at 330.
    At the outset we note that the parties dispute whether Caldwell, even
if its rule applies, could support any claim for relief in petitioner's
case.  The State emphasizes that the judge in this case, unlike Caldwell,
see id., at 339, did not approve the prosecutor's argument, and that the
remarks in this case were less likely to mislead.  Petitioner, on the other
hand, contends that the prosecutor's remarks were similar to those in
Caldwell, and were not cured by the judge's instructions to the jury.  We
need not address the significant questions concerning the merits of
petitioner's Caldwell claim on these facts, or the question whether
application of Caldwell to the facts presented here would itself involve a
new rule of law.  Rather, we address only whether Caldwell is available to
petitioner as a ground upon which he may seek relief.  Cf. Dugger v. Adams,
489 U. S. 401, 408, n. 4 (1989) (merit of Caldwell claim immaterial to
disposition of case on procedural bar grounds).
    Our review of the relevant precedents that preceded Caldwell convinces
us that it is a new rule for purposes of Teague.  On this point we are in
accord with the Court of Appeals, as well as the other two courts of
appeals that have addressed the question.  See Clark v. Dugger, ---- F. 2d
---- (CA11 May 3, 1990); Hopkinson v. Shillinger, supra.  The rule of
Teague serves to "validat[e] reasonable, good-faith interpretations of
existing precedents made by state courts even though they are shown to be
contrary to later decisions."  Butler v. McKellar, 494 U. S. ----, ----
(1990).  Thus, we have defined new rules as those that were not "dictated
by precedent existing at the time the defendant's conviction became final."
Teague, supra, at 301.  The principle announced in Teague serves to ensure
that gradual developments in the law over which reasonable jurists may
disagree are not later used to upset the finality of state convictions
valid when entered.  This is but a recognition that the purpose of federal
habeas corpus is to ensure that state convictions comply with the federal
law in existence at the time the conviction became final, and not to
provide a mechanism for the continuing reexamination of final judgments
based upon later emerging legal doctrine.
    Caldwell, of course, was not decided upon a clean slate.  As the Court
in Caldwell recognized, we had earlier addressed the question of improper
prosecutorial comment in Donnelly v. DeChristoforo, 416 U. S. 637 (1974).
We stated in Donnelly that improper remarks by a prosecutor could at some
point "so infec[t] the trial with unfairness as to make the resulting
conviction a denial of due process."  Id., at 643.  No such pervasive error
was established in that case, and we took the occasion to warn against
"holding every improper and unfair argument of a state prosecutor to be a
federal due process violation."  Caldwell, supra, at 338.  Caldwell, unlike
Donnelly, was a capital case; and while noting the principle set forth in
Donnelly, the Court in Caldwell determined to rely not on the Due Process
Clause but on more particular guarantees of sentencing reliability based on
the Eighth Amendment.  In Donnelly we had reversed a court of appeals
opinion vacating a conviction because prosecutorial comments were
"potentially" misleading, 416 U. S., at 641, but in Caldwell we found that
the need for reliable sentencing in capital cases required a new sentencing
proceeding because false prosecutorial comment created an "unacceptable
risk that `the death penalty [may have been] meted out arbitrarily or
capriciously,' " 472 U. S., at 343 (opinion of O'Connor, J.).
    Examination of our Eighth Amendment authorities that preceded Caldwell
shows that it was not dictated by prior precedent existing at the time the
defendant's conviction became final.  In Caldwell itself we relied on
Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586
(1978) (plurality opinion); Gardner v. Florida, 430 U. S. 349 (1977)
(plurality opinion); and Woodson v. North Carolina, 428 U. S. 280 (1976),
in support of the result.  We cited these decisions for the general
proposition that capital sentencing must have guarantees of reliability,
and must be carried out by jurors who would view all of the relevant
characteristics of the crime and the criminal, and take their task as a
serious one.  Petitioner, too, cites these and other cases in support of
the argument that Caldwell was "rooted" in the Eighth Amendment command of
reliable sentencing, and that application of these cases to misleading
prosecutorial comment "by analogy" would lead to the predictable Caldwell
result.  Brief for Petitioner 16.
    We do not doubt that our earlier Eighth Amendment cases lent general
support to the conclusion reached in Caldwell.  But neither this fact, nor
petitioner's contention that state courts "would have found Caldwell to be
a predictable development in Eighth Amendment law," Brief for Petitioner 8,
suffices to show that Caldwell was not a new rule.  In petitioner's view,
Caldwell was dictated by the principle of reliability in capital
sentencing.  But the test would be meaningless if applied at this level of
generality.  Cf. Anderson v. Creighton, 483 U. S. 635, 639 (1987) ("[I]f
the test of `clearly established law' were to be applied at this level of
generality, . . . [p]laintiffs would be able to convert the rule of
qualified immunity that our cases plainly establish into a rule of
virtually unqualified liability simply by alleging violation of extremely
abstract rights").
    It is beyond question that no case prior to Caldwell invalidated a
prosecutorial argument as impermissible under the Eighth Amendment.
Eddings and Lockett invalidated statutory schemes that imposed an absolute
prohibition against consideration of certain mitigating evidence by the sen
tencer.  Woodson invalidated a capital sentencing statute providing for
mandatory capital sentencing.  Gardner invalidated a capital sentence based
on information of which the defendant had no notice or opportunity to
respond.  These cases do not speak to the issue we decided in Caldwell.
What we said in Saffle v. Parks, 494 U. S. ----, ----, (1990), applies
here: "Even were we to agree with [petitioner's] assertion that our
decisions in Lockett and Eddings inform, or even control or govern, the
analysis of his claim, it does not follow that they compel the rule that
[petitioner] seeks."  Id., at ----.  Certainly Caldwell was not seen as
compelled by the three Justices of this Court who found a "lack of
authority" in our Eighth Amendment precedents for the approach taken there.
See 472 U. S., at 350 (Rehnquist, J., dissenting).
    From the point of view of a state court considering petitioner's claim
at the time his conviction became final, Saffle, supra, at ----, there were
in fact indications in our decisions that the Caldwell rule was not a
requirement of the Eighth Amendment.  In a previous case raising an Eighth
Amendment challenge to prosecutorial comment, we had rejected the
petitioner's claim.  California v. Ramos, 463 U. S. 992 (1983).  Indeed,
the Mississippi Supreme Court had held without dissent in Caldwell that
Ramos stood for the proposition that "states may decide whether it is error
to mention to jurors the matter of appellate review."  See Caldwell v.
State, 443 So. 2d 806, 813 (1983).  The Mississippi Court's
characterization of Ramos, of course, later proved to be incorrect.  But
this nonetheless suggests that prior to Caldwell our cases did not put
other courts on notice that the Eighth Amendment compelled the Caldwell
result.
    Our opinion in Maggio v. Williams, 464 U. S. 46 (1983), provides more
direct evidence that the rule of Caldwell cannot be described as dictated
by existing law at the time petitioner's claim became final.  In Williams
we vacated a stay of execution in a case presenting a claim very similar to
that in Caldwell.  Justice Stevens' opinion concurring in the judgment
described at length the prosecutor's argument in that case, 464 U. S., at
53-54, one similar to the argument made in Caldwell.  The Court, however,
found that the prisoner's challenge to the prosecutor's statements
"warrant[ed] little discussion."  464 U. S., at 49.  Although we stated
that the failure to raise the claim of improper prosecutorial argument in
an earlier habeas petition was "inexcusable," we noted that the district
court in the second petition had given the claim "full consideration" under
the "standard established in Donnelly v. DeChristoforo, 416 U. S. 637
(1974)," and had found that the prosecutor's closing argument "did not
render Williams' trial fundamentally unfair."  Id., at 49-50.  Our opinion
concluded by describing this and other claims raised by Williams as
"insubstantial."  Id., at 52.  Williams, of course, did not represent a
rejection on the merits of the rule announced in Caldwell.  But given our
statements concerning so similar a claim in Williams, we do not think a
state court viewing petitioner's case at the time his conviction became
final could have concluded that our Eighth Amendment precedents compelled
such a rule.
    We note also that, when petitioner's conviction became final, there was
some reason for doubt as to this Court's view concerning what became a
major premise of Caldwell, that misleading prosecutorial comment might
cause a "bias in favor of death sentences."  472 U. S., at 330.  At the
time of petitioner's trial and appeal there was at least "some suggestion,"
see Dugger v. Adams, 489 U. S., at 409, that comments tending to diminish
the jury's sense of sentencing responsibility would skew the result toward
leniency rather than a death sentence.  See Dobbert v. Florida, 432 U. S.
282, 294, and n. 7 (1977) (Florida's change to a system in which jury's
verdict was advisory might benefit defendants, as the jury "may have chosen
leniency when they knew [the sentencing] decision rested ultimately on the
shoulders of the trial judge, but might not have followed the same course
if their vote were final").
    Petitioner places primary reliance on numerous state cases, decided
prior to the finality of his conviction, that prohibited prosecutorial
statements of the type later held to violate the Eighth Amendment in
Caldwell.  See, e. g., Ward v. Commonwealth, 695 S. W. 2d 404, 408 (Ky.
1985); Ice v. Commonwealth, 667 S. W. 2d 671, 676 (Ky.), cert. denied, 469
U. S. 860 (1984); Wiley v. State, 449 So. 2d 756, 762 (Miss. 1984), cert.
denied, 479 U. S. 906 (1986); Williams v. State, 445 So. 2d 798, 811-812
(Miss. 1984), cert. denied, 469 U. S. 1117 (1985); State v. Robinson, 421
So. 2d 299, 233-234 (La. 1982); State v. Willie, 410 So. 2d 1019, 1033-1035
(La. 1982), cert. denied, 465 U. S. 1051 (1984); State v. Jones, 296 N. C.
495, 501-502, 251 S. E. 2d 425, 427-429 (1979); State v. Gilbert, 273 S. C.
690, 696-698, 258 S. E. 2d 890, 894 (1979); State v. Tyner, 273 S. C. 646,
659-660, 258 S. E. 2d 559, 566 (1979); Hawes v. State, 240 Ga. 327,
334-335, 240 S. E. 2d 833, 839 (1977); Fleming v. State, 240 Ga. 142,
145-146, 240 S. E. 2d 37, 40 (1977), cert. denied, 444 U. S. 885 (1979);
State v. White, 286 N. C. 395, 403-404, 211 S. E. 2d 445, 450 (1975);
Prevatte v. State, 233 Ga. 929, 932-933, 214 S. E. 2d 365, 367-368 (1975);
State v. Hines, 286 N. C. 377, 381-386, 211 S. E. 2d 201, 204-207 (1975).
Petitioner argues that these authorities show that state courts anticipated
the rule of Caldwell, and that no state reliance interest could be upset by
retroactive application of the federal rule to overturn a state conviction
that became final before Caldwell was decided.
    The flaw in this argument is that "the availability of a claim under
state law does not of itself establish that a claim was available under the
United States Constitution."  Dugger v. Adams, supra, at 409.  All of the
cases cited by respondent, with one arguable exception, are decisions of
state law, and do not purport to construe the Eighth Amendment.  These
cases, moreover, apply state common law rules prohibiting any mention of
appellate review; they do not condemn false prosecutorial statements under
the Eighth Amendment analysis employed in Caldwell.  Reliance on state law
cases for the proposition that the rule adopted in Caldwell was an old one
misapprehends the function of federal habeas corpus.  As we have said, the
" `relevant frame of reference' " for the new rule inquiry " `is not the
purpose of the new rule whose benefit the [defendant] seeks, but instead
the purposes for which the writ of habeas corpus is made available.' "
Teague, 489 U. S., at 306 (quoting Mackey v. United States, 401 U. S. 667,
682 (1971)).  Federal habeas corpus serves to ensure that state convictions
comport with the federal law that was established at the time the
petitioner's conviction became final.
    Petitioner points out, to support his argument that Caldwell applied an
old rule, that our opinion there was based in part on the adoption by many
state courts of rules that prohibited prosecutorial comments that could
diminish the jury's sense of sentencing responsibility.  Brief for
Petitioner 11; see 472 U. S., at 333-334, and n. 4.  It is true that our
cases have looked to the decisions of state courts and legislatures to
inform Eighth Amendment analysis.  But petitioner's attempt to use this
fact to show that Caldwell is an old rule is untenable.  Under this view,
state court decisions would both inform this Court's decisions on the
substantive content of the Eighth Amendment, and, by simultaneous effect,
impose those standards back upon the states themselves with retroactive
effect.  This view is also inconsistent with our citation in Penry v.
Lynaugh, 492 U. S. ----, ---- (1989), of Ford v. Wainwright, 477 U. S. 399
(1986), which relied for its Eighth Amendment analysis on the statutory or
common law of a majority of the States, see id., at 408-409, as an example
of a new rule.
    One Louisiana case cited by petitioner disapproving prosecutorial
comment on appellate review does discuss Eighth Amendment principles rather
than relying solely on state law.  Even in this case, however, the court
cited Eighth Amendment cases only in its discussion of prosecutorial
reference to the possibility of pardon.  Its discussion of prosecutorial
comment on appellate review, the issue before us here, referred to state
law rules.  See State v. Willie, supra, at 1033 (La. 1982), cert. denied,
465 U. S. 1051.  Petitioner also cites post-Caldwell Louisiana cases, which
cite Caldwell and state cases interchangeably, and state that Caldwell did
not change prior law in the state.  See State v. Smith, 554 So. 2d 676, 685
(1989); State v. Clark, 492 So. 2d 862, 870- 871 (1986); State ex rel.
Busby v. Butler, 538 So. 2d 164, 173 (1988).  To the extent these cases
reflect state court recognition that general Eighth Amendment principles
pointed toward adoption of a Caldwell rule, or that Caldwell is congruent
with preexisting state law, they cannot serve to show that Caldwell was
dictated by our Eighth Amendment prece dent.  State courts as well as
federal can be expected to engage in application of the principles
announced in prior Eighth Amendment decisions that are "susceptible to
debate among reasonable minds."  Butler, 494 U. S., at ----.
    Petitioner appears to contend that state courts will recognize federal
constitutional protections only if they are compelled to do so by federal
precedent and the threat of federal habeas review.  Since some state courts
had recognized a principle similar to Caldwell, this argument goes, the
result in Caldwell must have been compelled by Eighth Amendment precedent.
This argument is premised on a skepticism of state courts that we decline
to endorse.  State courts are coequal parts of our national judicial system
and give serious attention to their responsibilities for enforcing the
commands of the Constitution.  It is not surprising that state courts,
whether applying federal constitutional protections or seeking fair
administration of their own state capital punishment law, would have taken
care to exclude misleading prosecutorial comment.  But this conscientious
exercise of their powers of supervision and review could not dictate
Caldwell as a principle of federal law under the Eighth Amendment.

III
    Under Teague, new rules may be applied in habeas corpus proceedings
only if they come within "one of two narrow exceptions."  Saffle, 494 U.
S., at ----.  The first of these applies to new rules that place an entire
category of primary conduct beyond the reach of the criminal law, Teague,
supra, at ----, or new rules that prohibit imposition of a certain type of
punishment for a class of defendants because of their status or offense,
Penry, supra, at ----.  This exception has no application here.  The second
Teague exception applies to new "watershed rules of criminal procedure"
that are necessary to the fundamental fairness of the criminal proceeding.
Saffle, supra, at ----; Teague, supra, at ----.  Petitioner here challenges
the Court of Appeals' conclusion that Caldwell does not come within this
exception.
    Petitioner contends that the second Teague exception should be read to
include new rules of capital sentencing that "preserve the accuracy and
fairness of capital sentencing judgments."  Brief for Petitioner 30.  But
this test looks only to half of our definition of the second exception.
Acceptance of petitioner's argument would return the second exception to
the broad definition that Justice Harlan first proposed in Desist, but
later abandoned in Mackey, under which new rules that "significantly
improve the pre-existing fact-finding procedures are to be retroactively
applied on habeas."  Desist v. United States, 394 U. S. 244, 262 (1969).
In Teague, we modified Justice Harlan's test to combine the accuracy
element of the Desist test with the Mackey limitation of the exception to
watershed rules of fundamental fairness.  It is thus not enough under
Teague to say that a new rule is aimed at improving the accuracy of trial.
More is required.  A rule that qualifies under this exception must not only
improve accuracy, but also "alter our understanding of the bedrock
procedural elements" essential to the fairness of a proceeding.  Teague,
489 U. S., at 311 (quoting Mackey, 401 U. S., at 693).
    The scope of the Teague exceptions must be consistent with the
recognition that "[a]pplication of constitutional rules not in existence at
the time a conviction became final seriously undermines the principle of
finality which is essential to the operation of our criminal justice
system."  Teague, 489 U. S., at 309 (citing Friendly, Is Innocence
Irrelevant?  Collateral Attacks on Criminal Judgments, 38 U. Chi. L. Rev.
142, 150 (1970)).  The "costs imposed upon the State[s] by retroactive
application of new rules of constitutional law on habeas corpus thus
generally far outweigh the benefits of this application."  Solem v. Stumes,
465 U. S. 638, 654 (1984) (opinion of Powell, J.).  As we stated in Teague,
because the second exception is directed only at new rules essential to the
accuracy and fairness of the criminal process, it is "unlikely that many
such components of basic due process have yet to emerge."  489 U. S., at
313.
    It is difficult to see any limit to the definition of the sec- ond
exception if cast as proposed by petitioner.  All of our Eighth Amendment
jurisprudence concerning capital sentencing is directed toward the
enhancement of reliability and accuracy in some sense.  Indeed, petitioner
has not suggested any Eighth Amendment rule that would not be sufficiently
"fundamental" to qualify for the proposed definition of the exception, and
at oral argument in this case counsel was unable to provide a single
example.  Tr. of Oral Arg. 17.  In practical effect, petitioner asks us to
overrule our decision in Penry that Teague applies to new rules of capital
sentencing.  This we decline to do.
    At the time of petitioner's trial and appeal, the rule of Donnelly was
in place to protect any defendant who could show that a prosecutor's
remarks had in fact made a proceeding fundamentally unfair.  It was always
open to this petitioner to challenge the prosecutor's remarks at his
sentencing proceeding, by making the showing required by Donnelly.  See
Dugger v. Adams, 489 U. S., at 410, (defendant whose trial and appeal
occurred prior to Caldwell "could have challenged the improper remarks by
the trial judge at the time of his trial as a violation of due process.
See Donnelly v. De Christoforo, 416 U. S. 637 (1974)"); Maggio v. Williams,
464 U. S., at 49-50 (discussing application of Donnelly to improper remarks
at sentencing).  Petitioner has not contested the Court of Appeals' finding
that he has no claim for relief under the Donnelly standard.  And as the
Court of Appeals stated: "[T]he only defendants who need to rely on
Caldwell rather than Donnelly are those who must concede that the
prosecutorial argument in their case was not so harmful as to render their
sentencing trial `fundamentally unfair.' "  881 F. 2d, at 1293.
    Rather than focusing on the prejudice to the defendant that must be
shown to establish a Donnelly violation, our concern in Caldwell was with
the "unacceptable risk" that misleading remarks could affect the
reliability of the sentence.  See 472 U. S., at 343 (opinion of O'Connor,
J.).  Caldwell must therefore be read as providing an additional measure of
protection against error, beyond that afforded by Donnelly, in the special
context of capital sentencing.  See Darden v. Wainwright, 477 U. S. 168,
183-184, n. 14 (1986).  The Caldwell rule was designed as an enhancement of
the accuracy of capital sentencing, a protection of systemic value for
state and federal courts charged with reviewing capital proceedings.  But
given that it was added to an existing guarantee of due process protection
against fundamental unfairness, we cannot say this systemic rule enhancing
reliability is an "absolute prerequisite to fundamental fairness," 489 U.
S., at 314, of the type that may come within Teague's second exception.
    Discussions of the nature of Caldwell error from other contexts also
support our conclusion.  In Dugger v. Adams, supra, we held that failure to
consider a Caldwell claim would not come within a "fundamental miscarriage
of justice" exception to the doctrine of procedural default.  Id., at 412,
n. 6; see Murray v. Carrier, 477 U. S. 478 (1986).  We rejected the
dissent's contention that a fundamental miscarriage of justice had been
shown in that "the very essence of a Caldwell claim is that the accuracy of
the sentencing determination has been unconstitutionally undermined."
Dugger, supra, at 412, n. 6.  Similarly, in Williams, supra, Justice
Stevens concluded his discussion of a Caldwell-type claim by stating, "I
question whether it can be said that this trial was fundamentally unfair.
See Rose v. Lundy, supra, at 543, and n. 8 (Stevens, J., dissenting)."  464
U. S., at 56.  These cases, of course, involved different rules and
contexts.  Yet we think their rationale reflects a rejection of the ar
gument that Caldwell represents a rule fundamental to the criminal
proceeding.
    Because petitioner seeks the benefit of a new rule that does not come
within either of the Teague exceptions, his claim for habeas corpus relief
is without merit.  The judgment of the Court of Appeals is therefore

Affirmed.


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




Subject: 89-5809--DISSENT, SAWYER v. SMITH

 


    SUPREME COURT OF THE UNITED STATES


No. 89-5809



ROBERT SAWYER, PETITIONER v. LARRY SMITH, INTERIM WARDEN

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

[June 21, 1990]



    Justice Marshall, with whom Justice Brennan joins, Justice Blackmun
joins as to Parts I-IV, and Justice Stevens joins as to Parts I-III,
dissenting.
    In his closing argument in the sentencing phase of Robert Sawyer's
trial, the prosecutor emphatically argued to the jury that a sentence of
death would be "merely a recommendation" and that "others" would be able to
correct the de cision if it turned out to be "wrong."  This argument
misrepresented the scope of appellate review of capital sentences under
Louisiana law.  La. Code Crim. Proc. Ann., Art. 905.9 (West 1984) (review
by state supreme court is limited to question whether sentence of death is
"excessive").  The prosecutor's effort to minimize the jury's sense of
responsibility is precisely the type of misleading argument that we
condemned in Caldwell v. Mississippi, 472 U. S. 320 (1985), and is
therefore "fundamentally incompatible with the Eighth Amendment's
heightened `need for reliability in the determination that death is the
appropriate punishment.' "  Id., at 340 (quoting Woodson v. North Carolina,
428 U. S. 280, 305 (1976) (plurality opinion)).
    The Court refuses to address Sawyer's Caldwell claim on the merits.
Instead, it holds that Caldwell created a "new" rule within the meaning of
Teague v. Lane, 489 U. S. 288 (1989), ante, at 7, and that Caldwell's
protection against misleading prosecutorial argument is not a " `watershed
rul[e] of criminal procedure' " essential to the fundamental fairness of a
capital proceeding, ante, at 13 (quoting Saffle v. Parks, 494 U. S. ----,
----, (1990)).  To reach this result, the majority misrepresents the source
and function of Caldwell's prohibitions, thereby applying its newly-crafted
retroactivity bar to a case in which the State has no legitimate interest
in the finality of the death sentence it obtained through intentional
misconduct.  I dissent.

I
    In Teague, the plurality declared that a case announces a new rule "if
the result was not dictated by precedent existing at the time the
defendant's conviction became final."  489 U. S., at 301.  This Term, the
Court held that the " `new rule' principle . . . validates reasonable,
good-faith inter pretations of existing precedents made by state courts
even though they are shown to be contrary to later decisions."  Butler v.
McKellar, 494 U. S. ----, ---- (1990).  Accord, Parks, supra, at ----
(quoting Butler, supra, at ----).  I continue to regard the Court's effort
to curtail the scope of federal habeas as inconsistent with Congress's
intent to provide state prisoners with an opportunity to redress "unlawful
state deprivations of their liberty interests through a fresh and full
review of their claims by an Article III court."  Butler, supra, at ----
(Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting).
Even under the majority's standard, though, if the answer to a legal
question is not "susceptible to debate among reasonable minds," Butler,
supra, at ----, or if existing precedent would have "compelled" state
courts to provide relief at the time the defendant's conviction became
final, Parks, supra, at ----, then the decision does not announce a "new"
legal rule within the meaning of Teague.  In such circumstances, a
defendant is entitled to the retroactive benefit of the decision he seeks
to invoke.

A
    The "new rule" inquiry spelled out in Teague, Butler, and Parks
confirms that Caldwell did not create a new rule.  The roots of the
Caldwell rule can be traced directly to this Court's Eighth Amendment
decisions demanding heightened reliability in capital sentencing.  Woodson
v. North Carolina, supra, (plurality opinion); Lockett v. Ohio, 438 U. S.
586 (1978) (plurality opinion);  Eddings v. Oklahoma, 455 U. S. 104,
118-119 (1982) (O'Connor, J., concurring).  In Woodson, Lockett, and
Eddings, the Court considered and rejected States' efforts after Furman v.
Georgia, 408 U. S. 238 (1972), to eliminate arbitrariness in the
administration of the death penalty by limiting or withdrawing the
sentencer's discretion.  These decisions, as well as the post-Furman
decisions in which the Court upheld capital sentencing schemes, see, e. g.,
Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242
(1976); Jurek v. Texas, 428 U. S. 262 (1976), emphasized that sentencers
must confront their "truly awesome responsibility of decreeing death for a
fellow human . . . with due regard for the consequences of their decision."
Lockett, supra, at 598 (plurality opinion) (internal quotation marks and
citation omitted).  By the time of Caldwell, "this Court's Eighth Amendment
jurisprudence ha[d] taken as a given that capital sentencers would view
their task as the serious one of determining whether a specific human being
should die at the hands of the State."  428 U. S., at 329.
    The majority nonetheless insists that the "principle of reliability in
capital sentencing" is framed at such a high "level of generality" that
treating it as the relevant principle for de termining whether Caldwell is
new law would render Teague "meaningless."  Ante, at 7-8.  This argument
ignores the centrality of the Caldwell rule to reliability in capital
sentencing.  Caldwell error affects not just the consideration of some
relevant sentencing factors but the entire decision making process itself.
When a prosecutor misleadingly tells the jury that its verdict may be
corrected on appeal, the prosecutor invites the jury to shirk its
sentencing responsibility.  The prosecutor essentially informs the jury
that its verdict is less important because no execution will occur without
the independent approval of higher authorities.  To the extent the
prosecutor's comments are "focused, unambiguous, and strong," Caldwell,
supra, at 340, such misconduct casts irredeemable doubt on the resulting
verdict.
    Some rules in capital proceedings do not contribute fundamentally to
reliability; as to such rules, the majority's rejection of the reliability
principle as too general may be apt.  For example, the rule of Batson v.
Kentucky, 476 U. S. 79 (1986), prohibiting the State from exercising
peremptory challenges in a racially discriminatory manner does not have a
fundamental impact on the accuracy--as opposed to the integrity--of the
criminal process.  See Allen v. Hardy, 478 U. S. 255, 259 (1986).  The
Caldwell rule, though, is a prerequisite to reliability in capital
sentencing.  Not unlike the right to counsel, the right to a jury that
understands the gravity of its task is essential to the vindication of the
other sentencing guarantees.  Meticulous presentation of evidence and
careful instruction on the law are of minimal value to a defendant whose
jury has been led to believe that its verdict is of little or no
consequence.  The majority's observation that Caldwell's prohibition
against misleading prosecutorial argument is specific thus does not
undermine Sawyer's assertion that it was dictated by the Eighth Amendment's
general insistence on reliability in capital sentencing.

B
    The majority's assertion that "there were in fact indi cations in our
decisions that the Caldwell rule was not a requirement of the Eighth
Amendment," ante, at 8, is un supported by the cases on which the majority
relies.  In California v. Ramos, 463 U. S. 992 (1983), the defendant had
challenged California's requirement that trial courts instruct capital
juries about the Governor's power to commute life sentences.  In rejecting
the Eighth Amendment challenge, the Court emphasized that the challenged
instruction was accurate.  The Court distinguished Gardner v. Florida, 430
U. S. 349 (1977), in which the Court had struck down a death sentence based
in part on information contained in a pre sentence report that had not been
disclosed to defense counsel.  Unlike Gardner, where there was a "risk that
some of the information [relied on in sentencing] . . . may [have] be[en]
erroneous," id., at 359 (plurality opinion), the sentencing decision in
Ramos did not rest "in part on erroneous or inaccurate information."  463
U. S., at 1004.  See also ibid. (the "need for reliability in capital
sentencing" did not require reversal because the challenged instruction
gave the jury "accurate information").  Cf. Caldwell, 472 U. S., at 342
(O'Connor, J., concurring in part and concurring in judgment) ("In my view,
the prosecutor's remarks were impermissible because they were inaccurate
and misleading in a manner that diminished the jury's sense of
responsibility.  I agree that there can be no `valid state penological
interest' in imparting inaccurate or misleading information that minimizes
the importance of the jury's deliberations in a capital sentencing case")
(quoting id., at 336 (majority opinion)).  The Ramos Court's approval of
California's decision to provide capital juries with accurate information
respecting commutation cannot reasonably be read as an approval of
misleading or inaccurate prosecutorial argument concerning the scope of
appellate review.
    That the Mississippi Supreme Court in Caldwell erroneously read Ramos
so broadly does not, as the majority argues, "sugges[t] that prior to
Caldwell our cases did not put other courts on notice that the Eighth
Amendment compelled the Caldwell result."  Ante, at 9.  Some courts will
misconstrue our precedents notwithstanding their clarity, see, e. g., McKoy
v. North Carolina, 494 U. S. ----, ---- (1990) (state court failed to
adhere to clear direction of Mills v. Maryland, 486 U. S. 367 (1988)), and
the mere fact that a single court adopts a position contrary to the one
dictated by our precedents does not confirm that the case law was unclear.
Indeed, if that were the standard, almost every Supreme Court decision
would announce a new rule, as we seldom take cases to resolve issues as to
which the lower courts are in universal agreement.  Moreover, under the
majority's view, state court decisions, by misconstruing the scope of this
Court's Eighth Amendment decisions, would simultaneously limit the reach of
those decisions as a matter of federal law.  Cf. ante, at 11-12.
    Ironically, the majority regards one errant decision by the Mississippi
Supreme Court as evidence of uncertainty and yet dismisses as irrelevant to
its "new rule" inquiry the States' near-unanimous rejection of
Caldwell-type prosecutorial argument prior to Caldwell, supra, at 333-334,
and n. 4 (collecting cases).  Even the Mississippi Supreme Court declared
that "[a]ny argument by the state which distorts or minimizes the solemn
obligation and responsibility of the jury is serious error."  Hill v.
State, 432 So. 2d 427, 439 (Miss. 1983) (refusing to rule on defendant's
Caldwell-type claim, however, because of the absence of a contemporaneous
objection).  State decisions, even if they are not premised on federal law,
play a part in determining the status of constitutional protections under
the Eighth Amendment.  That Amendment "draw[s] its meaning from the
evolving standards of decency that mark the progress of a maturing
society," Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), and
this Court has often looked to the laws of the States as a barometer of
contemporary values, see, e. g., Penry v. Lynaugh, 492 U. S. ----, ----
(1989); Ford v. Wainwright, 477 U. S. 399, 408-409 (1986).  Of course, the
recognition of a right under state law does not translate automatically
into the existence of federal constitutional protection.  But a consensus
among States regarding an essential ingredient to "a fair trial in the
sentencing phase," State v. Berry, 391 So. 2d 418 (La. 1980) (opinion on
rehearing), is evidence that the right is cognizable under the federal
Constitution.  The States' strong pre-Caldwell condemnation of misleading
prosecutorial argument regarding the scope of appellate review is thus
additional evidence that our Eighth Amendment decisions compelled the
result in Caldwell.
    Moreover, the majority's contention that the state courts based their
decisions solely on "state common law," ante, at 11, assumes that States'
capital punishment jurisprudence has evolved independently of our Eighth
Amendment decisions.  But state decisions regarding capital sentencing
procedures--even those that do not explicitly mention federal law--are
surely informed by federal principles and should thus be accorded some
weight in discerning the scope of federal protections.  Only an especially
condescending federalism would protect States from retroactive application
of federal law by dismissing state decisions concerning capital sentencing
as irrelevant to the lineage of the federal law. {1}

C
    This Court's approach to improper prosecutorial comments in Donnelly v.
DeChristoforo, 416 U. S. 637 (1974), also supports a finding that Caldwell
did not establish a new rule.  In Donnelly, the prosecutor hinted that the
defendant might have been willing to accept a lesser penalty for his crime,
implicitly suggesting that the defendant had acknowledged his guilt.  The
Court held that this comment did not violate the Due Process Clause because
it was ambiguous, corrected by the trial court, and too fleeting to have
influenced the jury.  Id., at 643-645.  The Donnelly Court specifically
confined its decision to prosecutorial comments that did not implicate
"specific guarantees of the Bill of Rights."  Id., at 643.  Had the claim
implicated such rights, the Court acknowledged that "special care" would be
required "to assure that prosecutorial conduct in no way impermissibly
infringe[d] them."  Ibid.
    Donnelly was decided prior to the Court's explicit recognition in the
cases following Gregg that the Eighth Amendment affords special protections
to defendants facing the death penalty.  The Court's decisions in the
decade after Donnelly but before Caldwell made unmistakably clear that the
death penalty's qualitatively different character from all other
punishments necessitates "a corresponding difference in the need for
reliability in the determination that death is the appropriate punishment
in a specific case."  Woodson, 428 U. S., at 305 (plurality opinion).  See
also Beck v. Alabama, 447 U. S. 625, 637-638 (1980) (quoting Gardner, 430
U. S., at 357-358 (plurality opinion)).  Moreover, our jurisprudence by the
time of Caldwell indicated unambiguously that the Eighth Amendment protects
against the risk that the death penalty would be imposed in an arbitrary or
capricious manner.  Gregg, 428 U. S., at 188 (joint opinion of Stewart,
Powell, and Stevens, JJ.); see also Lockett, 438 U. S., at 605 (plurality
opinion).  In light of the Court's repeated emphasis on indispensible
safeguards guaranteed in capital sentencing by a provision of the Bill of
Rights, a court faced with mislead- ing prosecutorial comments about the
jury's sentencing role just prior to Caldwell could not reasonably have
concluded on the basis of Donnelly that such comments would survive this
Court's scrutiny.
    The majority's contrary conclusion rests on a misunderstanding of the
relationship between Caldwell and Donnelly.  The majority endorses the
Fifth Circuit's view that "[t]he only defendants who need to rely on
Caldwell rather than Donnelly are those who must concede that the
prosecutorial argument in their case was not so harmful as to render their
sentencing trial `fundamentally unfair.' "  Ante, at 15 (quoting 881 F. 2d
1273, 1293 (1989)).  But Caldwell is not, as the majority argues, "an
additional measure of protection against error, beyond that afforded by
Donnelly, in the special context of capital sentencing."  Ante, at 15.
This analysis erroneously presumes precisely what Caldwell denies, that
"focused, unambiguous, and strong," prosecutorial arguments that mislead a
jury about its sentencing role in the capital context can ever be deemed
harmless.  Caldwell rests on the view that any strong, uncorrected, and
unequivocal prosecutorial argument minimizing the jury's sense of
responsibility for its capital sentencing decision "presents an intolerable
danger that the jury will in fact choose to minimize the importance of its
role."  472 U.S., at 333.  Caldwell thus tells us that a capital trial in
which the jury has been misled about its sentencing role is fundamentally
unfair and therefore violates Donnelly as well.
    The majority's claim that Maggio v. Williams, 464 U. S. 46 (1983),
provides more "direct evidence" that the rule of Caldwell was not clear at
the time petitioner's conviction became final, ante, at 9, is likewise
unconvincing.  In Williams, the Court vacated the Fifth Circuit's entry of
a stay in a capital case because Williams' contentions were
"insubstantial."  464 U. S., at 52.  Williams alleged, inter alia, that the
prosecutor's closing argument had "elicited a decision based on passion
rather than reason."  Id., at 49.  Some, but not all, of the prosecutor's
argument referred to the scope of appellate review.  See id., at 53-54
(Stevens, J., concurring in judgment).  When the motion to vacate the stay
came to this Court, the sole issue was whether there was "a reasonable
probability" that four members of the Court would vote to grant certiorari.
Id., at 48 (internal quotation marks omitted). In view of Williams' prior
unsuccessful efforts to secure relief on similar claims, the Court applied
"a strict standard of review" to Williams' application.  Id., at 55
(Stevens, J., concurring in judgment).  The Court did not discuss the
merits of Williams' claim regarding the prosecutorial argument other than
to note that the District Court had given it "full consideration," id., at
49, and had found "that it did not render Williams' trial fundamentally
unfair," id., at 50.  The Court's vacation of the stay in these
circumstances thus reflects only the Court's view that Williams' claims, in
such a posture, did not "warrant certiorari and plenary consideration."
Id., at 48. {2}  In sum, because the cases that dictated the result in
Caldwell were decided before Sawyer's conviction became final in 1984, he
is entitled to careful review of the merits of his Caldwell claim.

II
    Even if Caldwell established a "new rule," that rule nonetheless is
available on federal habeas because it is a rule "without which the
likelihood of an accurate [verdict] is seriously diminished," Teague, 489
U. S., at 313.  The devastating impact of prosecutorial argument that
diminishes jurors' sense of responsibility is revealed in the state court
decisions condemning such argument.  See, e. g., Fleming v. State, 240 Ga.
142, 146, 240 S. E. 2d 37, 40 (1977) (holding that "this type of remark has
an unusual potential for corrupting the death sentencing process"); State
v. Berry, 391 So. 2d, at 418 ("If the reference conveys the message that
the jurors' awesome responsibility is lessened by the fact that their
decision is not the final one, or if the reference contains inaccurate or
misleading information, then the defendant has not had a fair trial in the
sentencing phase, and the penalty should be vacated"); Ward v.
Commonwealth, 695 S. W. 2d 404, 408 (Ky. 1985) (holding that "the
prosecutor clearly sought to divert from the minds of the jurors their true
responsibility in this case by implying that the ultimate responsibility
would fall to the trial judge, this court, [or] other appellate courts . .
. .  This is clearly an error of reversible magnitude"); Hill v. State, 432
So. 2d, at 439 ("Any argument by the state which distorts or minimizes this
solemn obligation and responsibility of the jury is serious error. . . .
[I]n a death penalty case a jury should never be given false comfort that
any decision they make will, or can be, corrected"); Wiley v. State, 449
So. 2d 756, 762 (Miss. 1984) ("While a jury is not literally `the hangman,'
only they [sic] may supply the hangman's victims.  All notions of justice
require that the jurors as individuals, and as a body, recognize and
appreciate the gravity of their role").
    The majority's underestimation of Caldwell's importance rests on the
defect discussed above, supra, at ----, namely, the view that a Caldwell
error will not render a trial fundamentally unfair. {3}  The majority's
vague suggestion that Caldwell serves as "a protection of systemic value
for state and federal courts charged with reviewing capital proceedings,"
ante, at 15-16, does not disguise its inability to identify, in concrete
terms, a situation in which Caldwell error occurs and yet the capital
proceeding can be described as fundamentally fair.  See Caldwell, 472 U.
S., at 341 (holding that if improper prosecutorial comment occurs the
sentencing decision "does not meet the standard of reliability that the
Eighth Amendment requires").
    Nor does Dugger v. Adams, 489 U. S. 401 (1989), undermine Caldwell's
status as a fundamental rule.  The issue there was whether a particular
defendant who had failed to object to misleading prosecutorial argument at
sentencing had suffered sufficient prejudice to justify overlooking a state
procedural bar.  Id., at ----.  The Court's denial of relief rested largely
on the importance of the State's "interest in having the defendant
challenge a faulty instruction in a timely manner so that it can correct
the misstatement."  Id., at 409; see also Wainwright v. Sykes, 433 U. S.
72, 87 (1977).  The stringent standard for excusing procedural defaults
against a particular defendant is premised on "the dual notion that, absent
exceptional circumstances, a defendant is bound by the tactical decisions
of competent counsel, and that defense counsel may not flout state
procedures and then turn around and seek refuge in federal court from the
consequences of such conduct."  Reed v. Ross, 468 U. S. 1, 13 (1984)
(citations omitted).
    No such concern with enforcing state procedural rules against a
particular defendant is at stake when we decide whether to apply new
constitutional principles retroactively to all federal habeas cases.  Our
inquiry instead focuses on the importance of the new principle generally to
the fairness and accuracy of the proceedings in which that principle went
unobserved.  Whereas the Teague inquiry focuses on the general necessity of
a rule to ensure an accurate verdict in all cases, the Court will overlook
a clear procedural default only if the error has "probably resulted in the
conviction of one who is actually innocent," 489 U. S., at 412, n. 6
(internal quotation marks omitted).  The strict procedural default rule is
designed in part to protect the State's interest--unique in the context of
procedural default--in correcting error in the first instance.  Sykes,
supra, at 88-90.
    Finally, the fundamental importance of Caldwell cannot be denied on the
ground that "it is `unlikely that many [new rules] of basic due process
[essential to accuracy and fairness] have yet to emerge.' "  Ante, at 14
(quoting Teague, 489 U. S., at 313).  The majority cannot bind the future
to present constitutional understandings of what is essential for due
process.  See, e. g., Hurtado v. California, 110 U. S. 516, 530-531 (1884).
We would rightly regard such a statement as an expression of hubris were we
to discover it in a volume of the United States Reports from 100, 50, or
even 20 years ago, at which time, incidentally, this Court, "[i]n light of
history, experience, and the present limitations of human knowledge,"
rejected the argument "that committing to the untrammeled discretion of the
jury the power to pronounce life or death in capital cases is offensive to
anything in the Constitution."  McGautha v. California, 402 U. S. 183, 207
(1971) (footnote omitted); cf. Gregg, 428 U. S., at 189 (joint opinion of
Stewart, Powell, and Stevens, JJ.) ("Furman mandates that 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").  Moreover, the notion that we have
already discovered all those procedures central to fundamental fairness is
squarely inconsistent with our Eighth Amendment methodology, under which
"bedrock" Eighth Amendment principles emerge in light of new societal
understandings and experience.  See, e. g., Coker v. Georgia, 433 U. S.
584, 593-597 (1977) (plurality opinion).

III
    The Court's refusal to allow Sawyer the benefit of Caldwell reveals the
extent to which Teague and its progeny unjustifiably limit the retroactive
application of accuracy-enhancing criminal rules.  Prior to Teague, our
retroactivity jurisprudence always recognized a difference between rules
aimed primarily at deterring police conduct and those designed to promote
the accuracy of criminal proceedings.  Although the former generally were
not applied retroactively, see, e. g., Linkletter v. Walker, 381 U. S. 618,
636-637 (1965), the Court routinely afforded defendants the benefit of "new
constitutional doctrine [whose purpose] is to overcome an aspect of the
criminal trial that substantially impairs its truth-finding function and so
raises serious questions about the accuracy of guilty verdicts in past
trials."  Williams v. United States, 401 U. S. 646, 653 (1971) (plurality
opinion).  We departed from the general rule favoring retroactive
application of accuracy-enhancing rules only in special cases in which
retroactivity would have undermined substantial reliance interests of law
enforcement officials and prosecutors who acted in good faith prior to the
change in the law.  See, e. g., Stovall v. Denno, 388 U. S. 293 (1967).
    The state prosecutor in this case surely could not claim a good-faith
belief in the legitimacy of the conduct proscribed in Caldwell--misleading
and inaccurate argument designed to minimize the jury's sentencing
responsibility.  Indeed, the State seems to concede as much, framing its
reliance interest, beyond its general interest in the finality of its
convictions, as the right to have "misleading prosecutorial remarks . . .
reviewed under the fundamental fairness standard of due process" rather
than the Eighth Amendment.  Brief for Respondent 16.  This purported
reliance interest depends on the erroneous view that Caldwell error could
survive review under the Due Process Clause.  See, supra, at ----.  But
even granting a distinction in the degree of scrutiny applied by Donnelly
and Caldwell, the State's claimed interest in having its intentional
misconduct reviewed under a less demanding standard is hardly worth
crediting.
    The State is thus left to rely solely on its general interest in the
finality in its criminal proceedings.  Before today, such an interest was
never alone sufficient to preclude vindication of constitutional rights on
federal habeas.  See Reed v. Ross, 468 U. S., at 15.  Teague itself, of
course, stated that it was departing from our traditional approach.  But
that case, as well as Butler and Parks, involved rules that the Court did
not recognize as contributing meaningfully to the accuracy of criminal
proceedings.  See Teague, 489 U. S., at 315 (failure to apply rule does not
"seriously diminish the likelihood of obtaining an accurate conviction");
Butler, 494 at ---- (failure to apply rule "would not seriously diminish
the likelihood of obtaining an accurate determination--indeed, it may
increase that likelihood"); Parks, 494 at ---- ("[t]he objectives of
fairness and accuracy are more likely to be threatened than promoted" by
the rule); cf. ante, at 15 (acknowledging that Caldwell's central purpose
is to enhance "the accuracy of capital sentencing").  Those cases thus
could have been decided in the same way under our prior retroactivity
doctrine, which weighed the State's finality and reliance interests against
the defendant's interests protected by the new rule.
    No such balancing of the competing concerns occurs today.  The Court
instead simply elevates its preference for finality in state proceedings
over Congress's commitment "to provide a federal forum for state prisoners
. . . by extending the habeas corpus powers of the federal courts to their
constitutional maximum," Fay v. Noia, 372 U. S. 391, 426 (1963).  This raw
preference for finality is unjustified.  Although a State undoubtedly
possesses a legitimate interest in the finality of its convictions, when
the State itself undermines the accuracy of a capital proceeding, that
general interest must give way to the demands of justice.

IV
    The jury that sentenced Sawyer to death was deliberately misled about
the significance of its verdict.  That Sawyer was thus denied a
fundamentally fair trial was as apparent when Sawyer's conviction became
final as it is today.  The Court's refusal to allow a federal habeas court
to correct this error is yet another indication that the Court is less
concerned with safeguarding constitutional rights than with speeding
defendants, deserving or not, to the executioner. I dissent.

V
    Even if I did not believe that Sawyer was entitled to federal habeas
review of his Caldwell claim, I would nonetheless vacate his death
sentence.  I adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment.  Gregg v. Georgia, 428 U. S.,
at 231 (Marshall, J., dissenting).

 
 
 
 
 

------------------------------------------------------------------------------
1
    That Penry v. Lynaugh, 492 U. S. ----, ---- (1989), and Teague v. Lane,
489 U. S. 288, 301 (1989), cite Ford v. Wainwright, 477 U. S. 399 (1986),
as crafting a "new" rule does not establish that state decisions are
irrelevant in assessing the status of a right under the federal
Constitution.  Cf. ante, at 12.  Neither of these opinions discussed the
citation to Ford, and the force of their conclusions is undermined by this
Court's subsequent reliance on state decisions in Saffle v. Parks, 494 U.
S. ---- (1990), to determine whether the rule invoked in that case was
compelled by our Eighth Amendment decisions, see id., at ---- (citing state
decisions).  State decisions cannot be deemed relevant to the Teague
inquiry only to the extent that they disprove the rootedness of a
constitutional right.

2
    The majority nonetheless views Williams as casting some doubt on the
ultimate disposition of Caldwell v. Mississippi, 472 U. S. 320 (1975)
because the prosecutor's argument in Williams was "very similar to [the
argument] in Caldwell."  Ante, at 9.  That position, though, is overbroad.
The district court's finding that Williams' trial was not fundamentally
unfair under Donnelly v. DeChristoforo, 416 U. S. 637 (1974) was tantamount
to a finding that Williams' jury was not misled about its sentencing role.
See Williams v. King, 573 F. Supp. 525, 530-531 (MD La. 1983).

3
    The majority's rejection of the States' view that Caldwell's
prohibitions are vital to the fairness of a capital proceeding reveals a
tension in the Court's retroactivity docrine.  At the same time that the
majority insists that Caldwell was not dictated by our Eighth Amendment
decisions, the majority also argues that Caldwell is not a fundamental rule
because it affected only an incremental change in capital sentencing.  See
ante, at 15 (stating that Caldwell provides merely an "additional measure
of protection against error, beyond that afforded by Donnelly").  A rule
may be "new" even if it is designed to serve interests substantially
similar to an "old" rule.  The majority's extensive effort in its "new
rule" analysis to demonstrate that Caldwell's "additional" protections
marked a departure in our Eighth Amendment jurisprudence, however, seems
disingenuous in light of its conclusion that the departure did not amount
to much.
