Lead Opinion
delivered the opinion of the Court.
In this case we decide whether our decision in Caldwell v. Mississippi,
Respondent Aubrey Dennis Adams, Jr., was charged with the first-degree murder of 8-year-old Trisa Gail Thornley, and the State sought to impose the death penalty. At the start of jury selection for respondent’s trial, the trial judge
“The Court is not bound by your recommendation. The ultimate responsibility for what this man gets is not on your shoulders. It’s on my shoulders. You are merely an advisory group to me in Phase Two. You can come back and say, Judge, we think you ought to give the man life. I can say, I disregard the recommendation of the Jury and I give him death. You can come back and say, Judge, we think he ought to be put to death. I can say, I disregard your recommendation and give him life. So that this conscience part of it as to whether or not you’re going to put the man to death or not, that is not your decision to make. That’s only my decision to make and it has to be on my conscience. It cannot be on yours.” App. 19-20.
On October 20, 1978, the jury found respondent guilty of first-degree murder. After a separate sentencing hearing, the jury recommended that he be sentenced to death, and the trial judge imposed a death sentence.
In September 1984, the Florida Supreme Court affirmed the denial of respondent’s first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Adams v. State,
On June 11, 1985, Caldwell v. Mississippi,
The Caldwell claim was then raised in respondent’s second federal habeas petition. The District Court held that the claim was procedurally barred, and that, alternatively, respondent’s Caldwell claim was meritless. Adams v. Wainwright, No. 86-64—Civ-Oc-16 (MD Fla., Mar. 7, 1986), p. 9,
We granted certiorari to review the Eleventh Circuit’s holding that Caldwell provides cause for respondent’s procedural default,
In Wainwright v. Sykes,
Reed v. Ross held that one way a petitioner can establish cause is by showing that “a constitutional claim is so novel that its legal basis is not reasonably available to counsel.” Id., at 16. The Eleventh Circuit, relying on Reed, held in this case that “Eighth Amendment jurisprudence at the time of [respondent’s] procedural default did not provide a reasonable basis” on which to raise a Caldwell claim.
We believe that the Eleventh Circuit failed to give sufficient weight to a critical fact that leads us to conclude, without passing on the Court of Appeals’ historical analysis, that Caldwell does not provide cause for respondent’s procedural default. As we have noted, the decision in “Caldwell is relevant only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright,
If respondent and the Court of Appeals are correct in this regard, respondent plainly had the basis for an objection and an argument on appeal that the instructions violated state law. See Pait v. State,
Respondent offers no excuse for his failure to challenge the remarks on state-law grounds, and we discern none that would amount to good cause in a federal habeas corpus proceeding. Had respondent objected at the time and asserted error under state law, and had the trial or appellate court sustained his objection, the error would have been corrected in the state system. Had his objection been overruled and that ruling sustained on appeal, we would very likely know that the instruction was an accurate reflection of state law. In either event, it is doubtful that the later decision in Caldwell would have provoked the filing of a second habeas corpus petition. In these circumstances, the fact that it turns out that the trial court’s remarks were objectionable on federal as well as state grounds is not good cause for his failure to follow Florida procedural rules.
We agree with respondent and the Court of Appeals that the availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution. See
Neither do we hold that whenever a defendant has any basis for challenging particular conduct as improper, a failure to preserve that claim under state procedural law bars any subsequently available claim arising out of the same conduct. Indeed, respondent here 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,
It is so ordered.
Notes
Florida Stat. §921.141 (1985) provides in relevant part as follows:
“(2) ADVISORY SENTENCE BY THE JURY.-After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:
“(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (5);
“(b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and
“(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.
“(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.-Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:
“(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and
“(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”
As aggravating circumstances, the trial judge found that the murder was committed while respondent was engaged in or attempting kidnaping and rape, was committed to avoid arrest, and was especially heinous, atrocious, or cruel. As mitigating circumstances, the trial judge found that respondent had no significant history of prior criminal activity, was under the influence of extreme emotional or mental disturbance at the time of the murder because he and his wife were getting a divorce, and was only 20 years of age.
Shortly after the Eleventh Circuit’s decision in this case, the Tenth Circuit also held that Caldivell was sufficiently novel to provide cause for a procedural default. Dutton v. Brown,
Although petitioners allege in their brief that respondent’s failure to raise a Caldwell claim in his first federal habeas petition constitutes an abuse of the writ, we need not address this contention given our resolution of the ease on procedural bar grounds.
We do not decide whether in fact the jury as instructed in this case was misinformed of its role under Florida law. The petition for certiorari did not raise this issue, and the merit of respondent’s Caldwell claim is irrelevant to our disposition of the case.
Both of these cases were cited in Caldwell v. Mississippi,
Respondent asserts, as an alternative basis for upholding the judgment of the Court of Appeals, that the procedural bar on which the Florida Supreme Court relied is not “adequate” — that is, it has not been “consistently or regularly applied." Johnson v. Mississippi,
First, respondent argues that under Florida law, claims based on major changes in constitutional law that occur after a defendant’s direct appeal are cognizable in a Rule 3.850 proceeding. Respondent contends that, in the words of the Eleventh Circuit, his “Caldwell claim is the very type of claim for which Florida created the Rule 3.850 procedure.” Ibid. But, given our conclusion that Caldwell does not excuse respondent’s proce
Second, respondent asserts, and the dissent agrees, that the Florida Supreme Court has failed to apply its procedural rule consistently and regularly because it has addressed the merits in several cases raising Caldwell claims on postconviction review. In the vast majority of cases, however, the Florida Supreme Court has faithfully applied its rule that claims not raised on direct appeal cannot be raised on postconviction review. See Bertolotti v. State,
Moreover, the few cases that respondent and the dissent cite as ignoring procedural defaults do not convince us that the Florida Supreme Court fails to apply its procedural rule regularly and consistently. In Darden v. State,
Respondent also argues that we should overlook his procedural default because failing to do so would result in a “fundamental miscarriage of justice.” We disagree. In Murray v. Carrier,
The dissent “assume[s], arguendo," that a fundamental miscarriage of justice results whenever “there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing decision.” Post, at 415, n. 4. According to the dissent, since “the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined," post, at 423, the standard for showing a fundamental miscarriage of justice necessarily is satisfied. We reject this overbroad view. Demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is “actually innocent” of the sentence he or she received. The approach taken by the dissent would turn the case in which an error results in a fundamental miscarriage of justice, the “extraordinary case,” Carrier, supra, at 496, into an all too ordinary one.
Dissenting Opinion
with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.
Although this Court repeatedly has ruled that the Eighth Amendment prohibits the arbitrary or capricious imposition of the death penalty,
In this case, the Eleventh Circuit determined that respondent Aubrey Dennis Adams was sentenced to death in violation of the Eighth Amendment, as interpreted in Caldwell v. Mississippi,
I would understand, and accept, the Court’s decision if the federal courts lacked authority to remedy the unconstitutional death sentence. But, manifestly, that is not the case. In reversing the judgment of the Court of Appeals, the majority relegates to a footnote its discussion of established doctrines that, upon full consideration, might entitle respondent to an affirmance, not a reversal, of that judgment. Thus, the majority not only capriciously casts aside precedent to reinstate an unconstitutionally “unreliable”
h — t
There is no need to dwell upon the history of the Court’s decisions on whether a criminal defendant’s failure to comply with a rule of state procedure precludes review of his conviction or sentence in a subsequent federal habeas corpus proceeding. By now it is settled that an adequate and independent state procedural ground, which would have precluded direct review in this Court, bars habeas review unless the habeas petitioner can demonstrate “cause” for the procedural default and “prejudice” resulting from the alleged constitutional violation. Wainwright v. Sykes,
Since Sykes, the Court has refined the “cause” and “prejudice” standard, see, e. g., Reed v. Ross,
Thus, under our precedents, the Court of Appeals was correct to review respondent’s procedurally defaulted Caldwell claim if any one of three conditions is met: (1) the Florida Supreme Court’s finding of procedural default was not an adequate and independent ground for its decision; (2) respondent can show cause for and prejudice from his default; or (3) the failure to review respondent’s claim would result in a fundamental miscarriage of justice. Yet the Court devotes but a single footnote at the end of its opinion to the first and third of these principles. Ante, at 410-412, n. 6.
The Court acknowledges, as it must, that it granted certio-rari to consider whether respondent had established “cause” for his procedural default. Ante, at 406. But this interest in the “cause” inquiry does not permit the Court to consign to second-class status the rest of the analysis necessary for determining whether the Court of Appeals properly considered the merits of respondent’s Caldwell claim. Indeed, once the other two principles receive the attention they deserve, it becomes evident that each provides an alternative basis for affirming the Court of Appeals’ judgment.
The majority recognizes that a state court s reliance on a procedural bar rule is inadequate if that rule “has not been ‘consistently or regularly applied.’” Ante, at 410, n. 6, quoting Johnson v. Mississippi,
When respondent raised his Caldtvell claim for the first time in his second postconviction motion under Rule 3.850 of the Florida Rules of Criminal Procedure, the Florida Supreme Court held this claim, among others, procedurally barred because respondent did not raise the claim in his direct appeal. See Adams v. State,
Prior to that date, however, the Florida Supreme Court, in two Rule 3.850 cases, did not foreclose review of Caldtvell claims, notwithstanding the existence of similar procedural defaults. First, in Darden v. State,
Second, in Mann v. State,
Furthermore, in no case prior to Adams did the Florida Supreme Court plainly hold a Caldwell claim procedurally barred. Petitioners cite Middleton v. State,
The majority’s reasons for discounting Darden and Mann are not persuasive. As to Darden, the majority observes that the Florida Supreme Court did not discuss the prisoner’s failure to raise his Caldwell claim on direct appeal, but rather mentioned only the failure to raise the Caldwell claim in a prior Rule 3.850 proceeding. But this observation misses the point. The fact remains that Darden on direct appeal did not raise his claim that the jury was misled about its role in sentencing him. See
As to Mann, the majority notes that the court did not specifically mention the prisoner’s Caldwell claim. But again, the majority misses the point. In respondent’s case, too, the Flordia Supreme Court did not expressly mention the Caldwell claim. See
In my view, then, the majority’s attempts to distinguish Darden and Mann are clearly unavailing, and these two cases suffice to show that respondent’s procedural default does not constitute an adequate state ground barring review of his Caldwell claim. Moreover, decisions of the Florida Supreme Court handed down after Adams reinforce the conclusion that that court has been inconsistent in applying its procedural bar rules to Caldwell claims. In Combs v. State,
The Florida Supreme Court also did not rely on procedural bar grounds in Daugherty v. State,
Most recently, in Glock v. Dugger,
III
Even if, somehow, I could be convinced that the Florida Supreme Court’s reliance on respondent’s procedural default was “adequate,” within the meaning of this Court’s precedents, I would still conclude that the Court of Appeals properly reached the merits of respondent’s Caldwell claim. I have no quarrel with the majority’s determination that respondent cannot show “cause” for his procedural default.
Rather, as the majority apparently recognizes, we must consider whether the failure to examine the merits of the Caldwell claim in this habeas action would result in a fundamental miscarriage of justice. The majority believes that no such injustice would occur. Again, I disagree.
Respondent’s Caldwell claim, see generally Brief for Respondent 25-49, rests on the following premises: Under Florida law, the judge at his trial was permitted to overturn the jury’s judgment on whether he should receive a life or a death sentence only upon a clear and convincing showing that the jury’s choice was erroneous.
If (as the Court of Appeals held and we must assume) these repeated and insistent comments mischaracterized the jury’s role under state law, then the sentencing process in respondent’s case was so distorted as to render the sentence inherently suspect. The alleged error in this case was severe: the incorrect instructions may well have caused the jury to vote for a death sentence that it would not have returned had it been accurately instructed. See Caldwell v. Mississippi,
In this respect, the alleged sentencing error here is entirely unlike the one at issue in Smith itself. There, admission of particular testimony allegedly violated the Fifth and Eighth Amendments,
In other words, respondent’s Caldwell claim is precisely the kind of claim that remains reviewable in a federal habeas action even though respondent cannot establish cause for his procedural default. See Smith,
Contrary to the result reached by the majority today, our precedents amply support the- Court of Appeals’ decision to consider whether respondent’s death sentence was unconstitutionally unreliable despite respondent’s failure to raise this constitutional issue in accordance with state procedures. It is not surprising, I suppose; that the Court misses the force of these precedents, since it confines two-thirds of the relevant inquiry to a single footnote at the end of its opinion.
If the Court can reach the question of “cause,” on which certiorari was granted, only by making a mockery of the requirement that state procedural bar rules be “applied] evenhandedly to all similar claims,” Hathorn v. Lovorn,
I dissent.
E. g., Johnson v. Mississippi,
In Caldwell, this Court ruled that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere."
See Adams v. Wainwright,
One may well be uncertain as to what meaning Smith gave to the term “fundamental miscarriage of justice.” The opinion cites Murray v. Carrier, which states that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”
The Court of Appeals found,
5 Having carefully reviewed [respondent’s remaining claims], we find that each one either was or should have been raised on direct appeal. We therefore find that the review sought by [respondent] is barred both by Rule 3.850 as ‘an abuse of the procedure governed by these rules,’ and by the caselaw which has firmly established the necessity of raising all available issues upon direct appeal.”
On direct appeal, Darden challenged certain statements of the prosecutor as unconstitutionally prejudicial. These statements, however, did not concern the jury’s role in the sentencing process and Darden did not suggest that the jury was misled about its role. See
The majority attempts to dismiss Combs by saying that the court there noted the defendant’s failure to raise the Caldivell claim at trial. But it is clear that the Combs decision did not rely on any procedural default as a basis for rejecting the Caldwell claim in that case. Rather, the Combs opinion is emphatic in expressing its desire to address the Caldivell claim on the merits. See
The majority’s efforts to discount Daugherty and Glock reveal a fundamental misunderstanding of the consistency inquiry under Johnson v. Mississippi,
That Daugherty relied on Combs does not negate this fact. On the contrary, Daugherty’s, exclusive reliance on Combs as the basis for deciding the Caldwell issue proves conclusively that Daugherty was not an application of a procedural bar rule. Similarly, regarding Glock, it is irrelevant “whether the trial court held that the Caldwell claim was or was not procedurally barred.” Ante, at 411-412, n. 6. Either way, it remains true that the Florida Supreme Court did not hold the Caldwell claim procedurally barred, which is the relevant point for the consistency issue.
To be sure, in 1987 and 1988, the Florida Supreme Court most of the time held Caldivell claims to be procedurally barred, but this fact does not undermine the conclusion that, at the very least, when the Florida Supreme Court decided Adams, it did not “consistently or regularly” apply its procedural bar rule to a Caldwell claim. Johnson v. Mississippi,
In addition, this Court historically has expressed particular reluctance to give force to a state court’s discretionary refusal to consider a capital defendant’s meritorious federal constitutional claim for reasons of procedural default. See Williams v. Georgia,
I nonetheless digress to note one disturbing aspect of the majority’s analysis of the “cause” issue.
The majority broadly asserts: “To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Ante, at 407. More pointedly, the majority continues: “Respondent therefore must be asserting in this case that the trial court’s remarks violated state law.” Ante, at 407-408. But contrary to the majority’s description of Caldwell's holding, it may be possible to establish a Caldwell violation by showing that jury instructions, although accurate under state law, nonetheless minimize the jury’s sense of responsibility in the sentencing process. See Steffen v. Ohio,
See Harich v. Dugger,
The testimony at issue in Smith was that of the defendant’s court-appointed psychiatrist: during the psychiatric evaluation, the defendant discussed a prior incident of deviant sexual conduct on his part. At the sentencing phase of the trial, the prosecution called the psychiatrist to the stand and elicited a description of what the defendant had said.
As even the majority appears to recognize, ante, at 410-412, n. 6, the trial judge’s finding of an equal number of aggravating and mitigating circumstances lends further support to respondent’s contention that review of his Caldwell claim is necessary to avoid a fundamental miscarriage of justice. The equal number of aggravating and mitigating circumstances suggests that the sentencing decision was a close call — as does the fact that two justices of the Florida Supreme Court dissented on respondent’s direct appeal. See Adams v. State,
The majority “do[es] not undertake here to define what it means to be ‘actually innocent’ of a death sentence,” ante, at 412, n. 6, yet apparently concludes that respondent cannot show that he “probably is ‘actually innocent’ of the sentence he . . . received.” Ibid. This incoherence in the Court’s decisionmaking would be disturbing in any case, but is especially shocking in a capital case. Moreover, the majority “recognizefs] the difficulty” of applying the concept of “ ‘actual’ innocence” to sentencing determinations, ibid., yet persists in using that problematic term without any clarification of its meaning in the sentencing context. Ibid.
What is worse, the Court in Smith v. Murray did articulate a standard, and yet the Court today ignores it. I was not in the majority in Smith, but here I have attempted faithfully to apply the standard articulated by the Smith majority, as best as I can discern it: whether the prisoner has demonstrated a “substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination.”
By refusing to apply this standard, the Court today effectively discards its own opinion in Smith. Yet, in also refusing to define “actual innocence”