Sawyer v. Smith/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, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), is entitled to use that decision 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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and the new rule does not come within Teague's exception for watershed rules fundamental to the integrity of the criminal proceeding.

* 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. State v. Sawyer, 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, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Sawyer v. Louisiana, 463 U.S. 1223, 103 S.Ct. 3567, 77 L.Ed.2d 1407 (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, Sawyer v. Louisiana, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 191. 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, 105 S.Ct. 2633, 86 L.Ed.2d 231 (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, a plurality held in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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. 1042, 110 S.Ct. 835, 107 L.Ed.2d 830 (1990), to resolve a conflict among the Courts of Appeals, see Hopkinson v. Shillinger, 888 F.2d 1286 (CA10 1989), and now affirm.

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 responsibility for determining the appropriateness of the defendant's capital sentence rests elsewhere. See 472 U.S., at 328-329, 105 S.Ct., at 2639-2640; id., at 342, 105 S.Ct., at 2646 (opinion of O'CONNOR, J.). We determined that false information of this type might produce "substantial unreliability as well as bias in favor of death sentences." Id., at 330, 105 S.Ct., at 2640.

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, 105 S.Ct., at 2644-2645, 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, 109 S.Ct. 1211, 1216, n. 4, 103 L.Ed.2d 435 (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, 901 F.2d 908 (CA11 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. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (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, 489 U.S., at 301, 109 S.Ct., at 1070 (plurality opinion). 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, 94 S.Ct. 1868, 40 L.Ed.2d 431 (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, 94 S.Ct., at l871. 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, 472 U.S., at 338, 105 S.Ct., at 2644. 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, 94 S.Ct., at 1870, 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, 105 S.Ct., at 2647 (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, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion); and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion), 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 "[b]y 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, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (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 sentencer. 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. 484, 491, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (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." 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, 105 S.Ct., at 2650 (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, 494 U.S., at 488, 110 S.Ct., at 1260, 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, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (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, 104 S.Ct. 311, 78 L.Ed.2d 43 (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, 104 S.Ct., at 315-316, 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, 104 S.Ct., at 313. 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 [94 S.Ct. 1868, 40 L.Ed.2d 431] (1974)," and had found that the prosecutor's closing argument "did not render Williams' trial fundamentally unfair." Id., 464 U.S., at 49-50, 104 S.Ct., at 313. Our opinion concluded by describing this and other claims raised by Williams as "insubstantial." Id., at 52, 104 S.Ct., at 315. 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, 105 S.Ct., at 2640. At the time of petitioner's trial and appeal there was at least "some suggestion," see Dugger v. Adams, 489 U.S., at 409, 109 S.Ct., at 1216, 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, 97 S.Ct. 2290, 2299, and n. 7, 53 L.Ed.2d 344 (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, 105 S.Ct. 192, 83 L.Ed.2d 125 (1984); Wiley v. State, 449 So.2d 756, 762 (Miss.1984), cert. denied, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986); Williams v. State, 445 So.2d 798, 811-812 (Miss.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985); State v. Robinson, 421 So.2d 229, 233-234 (La.1982);  State v. Willie, 410 So.2d 1019, 1033-1035 (La.1982), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 723 (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, 100 S.Ct. 177, 62 L.Ed.2d 115 (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, 489 U.S., at 409, 109 S.Ct., at 1216-1217. All of the cases cited by petitioner, 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, 109 S.Ct., at 1073 (plurality opinion) (quoting Mackey v. United States, 401 U.S. 667, 682, 91 S.Ct. 1160, 1174-1175, 28 L.Ed.2d 404 (1971)). Federal habeas corpus serves to ensure that state convictions comport with the federal law that was established at the time 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, 105 S.Ct., at 2641-2642, 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. 302, 329-330, 109 S.Ct. 2934, 2952-2953, 106 L.Ed.2d 256 (1989), of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (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, 106 S.Ct., at 2601-2602, 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, 104 S.Ct. 1327, 79 L.Ed.2d 723. 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 (La.1989); State v. Clark, 492 So.2d 862, 870-871 (La.1986); ''State ex rel. Busby v. Butler,'' 538 So.2d 164, 173 (La.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 pre-existing state law, they cannot serve to show that Caldwell was dictated by our Eighth Amendment precedent. 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 415, 110 S.Ct., at 1217.

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's, 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.

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 486, 110 S.Ct., at 1257. 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, 489 U.S., at 311, 109 S.Ct., at 1075 (plurality opinion), 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, 492 U.S., at 330, 109 S.Ct., at 1086. 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, 494 U.S., at 495, 110 S.Ct., at 1263; Teague, 489 U.S., at 311-313, 109 S.Ct., at 1075-1077 (plurality opinion). 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, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (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, supra, 489 U.S., at 311, 109 S.Ct., at 1076 (plurality opinion) (quoting Mackey, 401 U.S., at 693, 91 S.Ct., at 1180).

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, supra, 489 U.S., at 309, 109 S.Ct., at 1074 (plurality opinion) (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, 104 ,S.Ct. 1338, 1347, 79 L.Ed.2d 579 (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, 109 S.Ct., at 1077 (plurality opinion).

It is difficult to see any limit to the definition of the second 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, 109 S.Ct., at 1217 (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. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) ");  Maggio v. Williams, 464 U.S., at 49-50, 104 S.Ct., at 313-314 (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, 105 S.Ct., at 2647 (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, 106 S.Ct. 2464, 2472-2473, n. 14, 91 L.Ed.2d 144 (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, 109 S.Ct., at 1077, 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, 109 S.Ct., at 1217 n. 6; see Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (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, 489 U.S., at 412, n. 6, 109 S.Ct., at 1217 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, [455 U.S. 509], 543, and n. 8 [102 S.Ct. 1198, 1216 and n. 8, 71 L.Ed.2d 379 (1982) ] (STEVENS, J., dissenting)." 464 U.S., at 56, 104 S.Ct., at 317. These cases, of course, involved different rules and contexts. Yet we think their rationale reflects a rejection of the argument 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.

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.