text:
    BECKER v. MONTGOMERY, ATTORNEY GENERAL OF OHIO, et al.
    No. 00-6374.
    Argued April 16, 2001
    Decided May 29, 2001

      Jeffrey S. Sutton, by appointment of the Court, 531 U. S. 1123, argued the cause for petitioner. With him on the briefs were Ronald E. Laymon and Chad A. Readier.

      Stewart A. Baker, by invitation of the Court, 531 U. S. 1110, argued the cause and filed a brief as amicus curiae in support of the judgment below. Betty D. Montgomery, Attorney General of Ohio, pro se, and David M. Gormley, State Solicitor, filed a brief for respondents.
   Justice Ginsburg

delivered the opinion of the Court.

Petitioner Dale G. Becker, an Ohio prisoner, instituted a pro se civil rights action in a Federal District Court, contesting conditions of his confinement. Upon dismissal of his complaint for failure to state a claim for relief, Becker sought to appeal. Using a Government-printed form, Becker timely filed a notice of appeal that contained all of the requested information. On the line tagged “(Counsel for Appellant),” Becker typed, but did not hand sign, his own name. For want of a handwritten signature on the notice as originally filed, the Court of Appeals dismissed Becker’s appeal. The appellate court deemed the defect “jurisdictional,” and therefore not curable outside the time allowed to file the notice.

We granted review to address this question: “When a party files a timely notice of appeal in district court, does the failure to sign the notice of appeal require the court of appeals to dismiss the appeal?” 531 U.S. 1110 (2001). Our answer is no. For want of a signature on a timely notice, the appeal is not automatically lost. The governing Federal Rules direct that the notice of appeal, like other papers filed in district court, shall be signed by counsel or, if the party is unrepresented, by the party himself. But if the notice is timely filed and adequate in other respects, jurisdiction will vest in the court of appeals, where the ease may proceed so long as the appellant promptly supplies the signature once the omission is called to his attention.

I

This ease originated from a civil rights complaint under 42 U. S. G. § 1983 filed pro se by Ohio prison inmate Dale G. Becker in the United States District Court for the Southern District of Ohio. Becker challenged the conditions of his incarceration at the Chillicothe Correctional Institution, specifically, his exposure to second-hand cigarette smoke. The District Court dismissed Becker’s complaint for failure to exhaust prison administrative remedies and failure to state a claim upon which relief could be granted. App. 5-8.

Within the 30 days allowed for appeal from a district court’s judgment, see 28 U. S. C. § 2107(a); Fed. Rule App. Proc. 4(a)(1), Becker, still pro se, filed a notice of appeal. Using a notice of appeal form printed by the Government Printing Office, Becker filled in the blanks, specifying himself as sole appellant, designating the judgment from which he appealed, and naming the court to which he appealed. See Fed. Rule App. Proe. 3(c)(1). He typed his own name in the space above “(Counsel for Appellant),” and also typed, in the spaces provided on the form, his address and the date of the notice. The form Becker completed contained no statement or other indication of a signature requirement and Becker did not hand sign the notice.

The District Court docketed the notice, sent a copy to the Court of Appeals, and subsequently granted Becker leave to proceed in forma pauperis on appeal. Becker received a letter from the Sixth Circuit Clerk’s Office telling him that his appeal had been docketed and setting a briefing schedule. The letter stated: “The court is aware that you are not an attorney and it will not hold you to the same standards it requires of them in stating your case.” App. 14.

Becker filed his brief more than two weeks in advance of the scheduled deadline. He signed it both on the cover and on the last page. Some six months later, on its own motion, the Sixth Circuit dismissed the appeal in a spare order relying on that court’s prior, published decision in Mattingly v. Farmers State Bank, 153 F. 3d 336 (1998) (per curiam). In Becker’s case, the Court of Appeals said, summarily:

“This court lacks jurisdiction over this appeal. The notice of appeal is defective because it was not signed by the pro se appellant or by a qualified attorney.” App. 16-17.

No court officer had earlier called Becker’s attention to the need for a signature, and the dismissal order, issued long after the 30-day time to appeal expired, accorded Becker no opportunity to cure the defect.

Becker filed a timely but unsuccessful motion for reconsideration, to which he appended a new, signed notice of appeal. Thereafter, he petitioned for this Court’s review. The Attorney General of Ohio, in response, urged us “to summarily reverse the judgment below,” Brief in Response to Pet. for Cert. 1, stating:

“We cannot honestly claim any uncertain[t]y about petitioner Becker’s intention to pursue an appeal once he filed his timely, though unsigned, notice of appeal in the district court. We never objected to the lack of a signature on his notice of appeal, and fully expected the court of appeals to address his appellate arguments on the merits.” Id., at 5.

We granted certiorari, 531 U. S. 1069; 531 U.S. 1110 (2001), to assure the uniform interpretation of the governing Federal Rules, and now address the question whether Becker’s failure to sign his timely filed notice of appeal requires the Court of Appeals to dismiss his appeal.

II

In Mattingly v. Farmers State Bank, 153 F. 3d 336 (1998) (per curiam), the Sixth Circuit determined that a notice of appeal must be signed, and that a signature’s omission cannot be cured by giving the appellant an opportunity to sign after the time to appeal has expired. For this determination, that court relied on the complementary operation of two Federal Rules: Federal Rule of Appellate Procedure (Appellate Rule) 4(a)(1), which provides that “the notice of appeal required by Rule 3 [to commence an appeal] must be filed with the district clerk within 30 days after the judgment or order appealed from is entered”; and Federal Rule of Civil Procedure (Civil Rule) 11(a), which provides that “[ejvery... paper [filed in a district court] shall be signed.” We agree with the Sixth Circuit that the governing Federal Rules call for a signature on notices of appeal. We disagree, however, with that court’s dispositive ruling that the signature requirement cannot be met after the appeal period expires.

Civil Rule 11(a), the source of the signature requirement, comes into play on appeal this way. An appeal can be initiated, Appellate Rule 3(a)(1) instructs, “only by filing a notice of appeal with the district clerk within the time allowed by [Appellate] Rule 4.” Whenever the Appellate Rules provide for a filing in the district court, Appellate Rule 1(a)(2) directs, “the procedure must comply with the practice of the district court.” The district court practice relevant here is Civil Rule 11(a).

Rule ll(a)’s first sentence states the signature requirement:

“Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.”

Notices of appeal unquestionably qualify as “other paper[s],” so they “shall be signed.”

Becker maintains that typing one’s name satisfies the signature requirement and that his original notice of appeal, containing his name typed above “(Counsel of Record),” met Civil Rule ll(a)’s instruction. We do not doubt that the signature requirement can be adjusted to keep pace with technological advances. A 1996 amendment to Civil Rule 5 provides in this regard:

“A court may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules.” Fed. Rule Civ. Proc. 5(e).

See, e. g., Rule 5.1 (ND Ohio 2000) (permitting “papers filed, signed, or verified by electronic means”). The local rules on electronic filing provide some assurance, as does a handwritten signature, that the submission is authentic. See, e. g., United States District Court for the Northern District of Ohio, Electronic Filing Policies and Procedures Manual 4 (Apr. 2, 2001) (available at http://www.ohnd.uscourts.gov/ Electronic_Filing/user.pdf) (allowing only registered attorneys assigned identification names and passwords to file papers electronically). Without any rule change so ordering, however, we are not disposed to extend the meaning of the word “signed,” as that word appears in Civil Rule 11(a), to permit typed names. As Rule 11(a) is now framed, we read the requirement of a signature to indicate, as a signature requirement commonly does, and as it did in John Hancock’s day, a name handwritten (or a mark handplaced).

As plainly as Civil Rule 11(a) requires a signature on filed papers, however, so the rule goes on to provide in its final sentence that “omission of the signature” may be “corrected promptly after being called to the attention of the attorney or party.” “Correction can be made,” the Rules Advisory Committee noted, “by signing the paper on file or by submitting a duplicate that contains the signature.” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 11, 28 U. S. C. App., p. 666.

Amicus urges that only the first sentence of Civil Rule 11(a), containing the signature requirement — not Rule ll(a)’s final sentence, providing for correction of a signature omission — applies to appeal notices. Appellate Rule l(a)(2)’s direction to “comply with the practice of the district court” ceases to hold sway, amicus maintains, once the notice of appeal is transmitted from the district court, in which it is filed, to the court of appeals, in which the case will proceed. Brief for Amicus Curiae in Support of the Judgment Below 15-18, and nn. 18-20.

Civil Rule 11(a), in our view, cannot be sliced as amicus proposes. The rule was formulated and should be applied as a cohesive whole. So understood, the signature requirement and the cure for an initial failure to meet the requirement go hand in hand. The remedy for a signature omission, in other words, is part and parcel of the requirement itself. Becker proffered a correction of the defect in his notice in the manner Rule 11(a) permits — he attempted to submit a duplicate containing his signature, see swpra, at 761 — and therefore should not have suffered dismissal of his appeal for nonobservance of that rule.

The Sixth Circuit in Mattingly correctly observed that we have described Appellate Rules 3 and 4 as “jurisdictional in nature.” 153 F. 3d, at 337 (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 (1988), and Smith v. Barry, 502 U.S. 244, 248 (1992)). We do not today hold otherwise. We rule simply and only that Becker’s lapse was curable as Civil Rule 11(a) prescribes; his initial omission was not a “jurisdictional” impediment to pursuit of his appeal.

Appellate Rules 3 and 4, we clarify, are indeed linked jurisdictional provisions. Rule 3(a)(1) directs that a notice of appeal be filed “within the time allowed by Rule 4,” i. e., ordinarily, within 30 days after the judgment appealed from is entered, see supra, at 762-763, and n. 2. Rule 3(c)(1) details what the notice of appeal must contain: The notice, within Rule 4’s timeframe, must (1) specify the party or parties taking the appeal; (2) designate the judgment from which the appeal is taken; and (3) name the court to which the appeal is taken. Notably, a signature requirement is not among Rule 3(e)(l)’s specifications, for Civil Rule 11(a) alone calls for and controls that requirement and renders it nonjurisdictional.

Amicus ultimately urges that even if there is no jurisdictional notice of appeal signature requirement for parties represented by attorneys, pro se parties, like Becker, must sign within Rule 4’s time line to avoid automatic dismissal. See Tr. of Oral Arg. 34-86. Appellate Rule 3(c)(2) is the foundation for this argument. That provision reads: “A pro se notice of appeal is considered filed on behalf of the signer and the signer’s spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.”

We do not agree that Rule 3(c)(2)’s prescription, added in 1993 to a then unsubdivided Rule 3(e), see Advisory Committee’s Notes on Fed. Rule App. Proe. 3,28 U. S. C. App., p. 590, places pro se litigants in a singularly exacting time bind. The provision, as we read it, does not dislodge the signature requirement from its Civil Rule 11(a) moorings and make of it an Appellate Rule 3 jurisdictional specification. The current Rule 3(e)(2), like other changes made in 1993, the Advisory Committee Notes explain, was designed "to prevent the loss of a right to appeal through inadvertent omission of a party’s name” when "it is objectively clear that [the] party intended to appeal.” Advisory Committee’s Notes on Fed. Rule App. Proc. 3,28 U. S. C. App., p. 590. Seen in this light, the Rule is entirely ameliorative; it assumes and assures that the pro se litigant’s spouse and minor children, if they were parties below, will remain parties on appeal, “unless the notice clearly indicates a contrary intent.” Ibid.

If we had any doubt that Appellate Rule 3(c)(2) was meant only to facilitate, not to impede, access to an appeal, we would find corroboration in a related ameliorative rule, Appellate Rule 3(c)(4), which provides: “An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.” Cf. this Court’s Rule 14.5 (“If the Clerk determines that a petition submitted timely and in good faith is in a form that does not comply with this Rule' [governing the content of ipetitions for certiorari] or with Rule 33 or Rule 34 [governing document preparation], the Clerk will return it with a letter indicating the deficiency. A corrected petition received no more than 60 days after the date of the Clerk’s letter will be deemed timely.”).

In Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), it is true, we held, that a notice of appeal that omitted the name of a particular appellant, through a clerical error, was ineffective to take an appeal for that party. Id., at 318 (construing Rule 3(c) prior to the ameliorative changes made in 1993). Becker’s notice, however, did not suffer from any failure to “specify the party or parties taking the appeal.” Fed. Rule App. Proe. 3(c)(1)(A). Other opinions of this Court are in full harmony with the view that imperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court. See Smith v. Barry, 502 U.S., at 245, 248-249 (holding that “a document intended to serve as an appellate brief [filed within the time specified by Appellate Rule 4 and containing the information required by Appellate Rule 3] may qualify as the notice of appeal”); Foman v. Davis, 371 U.S. 178, 181 (1962) (holding that an appeal was improperly dismissed when the record as a whole — including a timely hut incomplete notice of appeal and a premature but complete notice — revealed the orders petitioner sought to appeal).

* * *

In sum, the Federal Rules require a notice of appeal to be signed. That requirement derives from Civil Rule 11(a), and so does the remedy for a signature’s omission on the notice originally filed. On the facts here presented, the Sixth Circuit should have accepted Becker’s corrected notice as perfecting his appeal. We therefore reverse the judgment dismissing Becker’s appeal and remand the case for further proceedings consistent with this opinion.

It is so ordered.

       "Without any party to defend the Sixth Circuit's position, we invited Stewart A. Baker to brief and argue this case, as amicus curiae, in support of the judgment below. 531 U.S. 1110 (2001). Has able representation, and that of Jeffrey S. Sutton, whom we appointed to represent Becker, 531 U.S. 1123 (2001), permit us to decide this case satisfied that the relevant issues have been felly aired.

       On motion filed no later than 30 days after expiration of the original appeal time, the appeal period may be extended upon a showing of “excusable neglect or good cause,” but the extension “may [not] exceed 30 days after the [originally] prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.” Fed. Rule App. Proc. 4(a)(5).

       Appellate Rule 3(c)(1), as currently framed, provides in full:
      “(1) The notice of appeal must:
      “(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all defendants except X’;
      "(B) designate the judgment, order, or part thereof being appealed; and
      "(G) name the court to which the appeal is taken.”

       The Advisory Committee intended the elaborate 1993 amendment of Appellate Rule 3(e) “to reduce the amount of satellite litigation spawned by [Torres].” Advisory Committee’s Notes on Fed. Rule App. Rroe. 3,28 U. S. C. App., p. 590.


source: Caselaw Access Project

author: Per Curiam. Justice Ginsburg,

license: Public Domain

text:
    ARKANSAS v. SULLIVAN
    No. 00-262.
    Decided May 29, 2001
   Per Curiam.

In November 1998, Officer Joe Taylor of the Conway, Arkansas, Police Department stopped respondent Sullivan for speeding and for having an improperly tinted windshield. Taylor approached Sullivan’s vehicle, explained the reason for the stop, and requested Sullivan’s license, registration, and insurance documentation. Upon seeing Sullivan’s license, Taylor realized that he was aware of “ ‘intelligence on [Sullivan] regarding narcotics.’ ” 840 Ark. 318-A, 318-B, 16 S.W. 3d 551, 552 (2000). When Sullivan opened his ear door in an (unsuccessful) attempt to locate his registration and insurance papers, Taylor noticed a rusted roofing hatchet on the ear’s floorboard. Taylor then arrested Sullivan for speeding, driving without his registration and insurance documentation, carrying a weapon (the roofing hatchet), and improper window tinting.

After another officer arrived and placed Sullivan in his squad car, Officer Taylor conducted an inventory search of Sullivan’s vehicle pursuant to the Conway Police Department’s Vehicle Inventory Policy. Under the vehicle’s armrest, Taylor discovered a bag containing a substance that appeared to him to be methamphetamine as well as numerous items of suspected drug paraphernalia. As a result of the detention and search, Sullivan was charged with various state-law drug offenses, unlawful possession of a weapon, and speeding.

Sullivan moved to suppress the evidence seized from his vehicle on the basis that his arrest was merely a “pretext and sham to search” him and, therefore, violated the Fourth and Fourteenth Amendments to the United States Constitution. Pet. for Cert. 3. The trial court granted the suppression motion and, on the State’s interlocutory appeal, the Arkansas Supreme Court affirmed. 340 Ark. 315, 11 S.W. 3d 526 (2000). The State petitioned for rehearing, contending that the court had erred by taking into account Officer Taylor’s subjective motivation, in disregard of this Court’s opinion in Whren v. United States, 517 U.S. 806 (1996). Over the dissent of three justices, the court rejected the State’s argument that Whren makes “the ulterior motives of police officers . . . irrelevant so long as there is probable cause for the traffic stop” and denied the State’s rehearing petition. 340 Ark., at 318-B, 16 S. W. 3d, at 552.

The Arkansas Supreme Court declined to follow Whren on the ground that “much of it is dicta.” 340 Ark., at 318-B, 16 S. W. 3d, at 552. The court reiterated the trial judge’s conclusion that “the arrest was pretextual and made for the purpose of searching Sullivan’s vehicle for evidence of a crime,” and observed that “we do not believe that Whren disallows” suppression on such a basis. Id., at 318-C, 16 S. W. 3d, at 552. Finally, the court asserted that, even if it were to conclude that Whren precludes inquiry into an arresting officer’s subjective motivation, “there is nothing that prevents this court from interpreting the U. S. Constitution more broadly than the United States Supreme Court, which has the effect of providing more rights.” 340 Ark., at 318-C, 16 S. W. 3d, at 552.

Because the Arkansas Supreme Court’s decision on rehearing is flatly contrary to this Court’s controlling precedent, we grant the State’s petition for a writ of certiorari and reverse. As an initial matter, we note that the Arkansas Supreme Court never questioned Officer Taylor’s authority to arrest Sullivan for a fine-only traffic violation (speeding), and rightly so. See Atwater v. Lago Vista, ante, p. 318. Rather, the court affirmed the trial judge’s suppression of the drug-related evidence on the theory that Officer Taylor’s arrest of Sullivan, although supported by probable cause, nonetheless violated the Fourth Amendment because Taylor had an improper subjective motivation for making the stop. The Arkansas Supreme Court’s holding to that effect cannot be squared with our decision in Whren, in which we noted our “vmwilling[ness] to entertain Fourth Amendment challenges based on the actual motivations of individual officers,” and held unanimously that “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 517 U.S., at 813. That Whren involved a traffic stop, rather than a custodial arrest, is of no particular moment; indeed, Whren itself relied on United States v. Robinson, 414 U.S. 218 (1973), for the proposition that “a traffic-violation arrest . . . [will] not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.’ ” 517 U. S., at 812-813.

The Arkansas Supreme Court’s alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court’s own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714 (1975). There, we observed that the Oregon Supreme Court’s statement that it could “‘interpret the Fourth Amendment more restrietively than interpreted by the United States Supreme Court’” was “not the law and surely must be an inadvertent error.” Id., at 719, n. 4. We reiterated in Hass that while “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards,” it “may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” Id., at 719.

The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Ginsburg,

with whom Justice Stevens, Justice O’Connor, and Justice Breyer join,

concurring.

The Arkansas Supreme Court was moved by a concern rooted in the Fourth Amendment. Validating Kenneth Sullivan’s arrest, the Arkansas court feared, would accord police officers disturbing discretion to intrude on individuals’ liberty and privacy. See 340 Ark. 318-A, 318-B, 16 S. W. 3d 551, 552 (2000) (expressing unwillingness “to sanction conduct where a police officer can trail a targeted vehicle with a driver merely suspected of criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver for speeding, and conduct a full-blown inventory search of the vehicle with impunity”). But this Court has held that such exercises of official discretion are unlimited by the Fourth Amendment. See Atwater v. Logo Vista, ante, p. 318; Whren v. United States, 517 U.S. 806 (1996). Given the Court’s current ease law, I join the Court’s opinion.

In Atwater, which recognized no constitutional limitation on arrest for a fine-only misdemeanor offense, this Court relied in part on a perceived “dearth of horribles demanding redress.” Ante, at 353. Although I joined a dissenting opinion questioning the relevance of the Court’s conclusion on that score, see ante, at 372 (opinion of O’Connor, J.), I hope the Court’s perception proves correct. But if it does not, if experience demonstrates “anything like an epidemic of unnecessary minor-offense arrests,” ante, at 353 (opinion of the Court), I hope the Court will reconsider its recent precedent. See Vasquez v. Hillery, 474 U.S. 254, 266 (1986) (observing that Court has departed from stare decisis when necessary “to bring its opinions into agreement with experience and with facts newly ascertained”) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412 (1932) (Brandeis, J., dissenting)).

       Sullivan’s motion for leave to proceed informa pauperis is granted. We have jurisdiction under 28 U. S. C. § 1257 notwithstanding the absence of final judgment in the underlying prosecution. See New York v. Quarles, 467 U.S. 649, 651, n. 1 (1984) (“[S]hould the State convict respondent at trial, its claim that certain evidence was wrongfully suppressed will be moot. Should respondent be acquitted at trial, the State will be precluded from pressing its federal claim again on appeal”).


author: CHIEF Justice Rehnquist

text:
    FLORIDA v. THOMAS
    No. 00-391.
    Argued April 25, 2001
    Decided June 4, 2001

      Robert J. Krauss, Senior Assistant Attorney General of Florida, argued the cause for petitioner. With him on the briefs were Robert A. Butterworth, Attorney General, Carolyn M. SnurkowsM, Assistant Deputy Attorney General, and John M. Klawikofsky, Assistant Attorney General.

      Gregory G. Garre argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Underwood, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.

      Cynthia J. Dodge argued the cause for respondent. With her on the brief was James Marion Moorman.

        Tracey Maclin and Lisa B. Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   CHIEF Justice Rehnquist

delivered the opinion of the Court.

In New York v. Belton, 453 U.S. 454 (1981), we established a “bright-line” rule permitting a law enforcement officer who has made a lawful custodial arrest of the occupant of a car to search the passenger compartment of that car as a contemporaneous incident of the arrest. We granted certiorari to consider whether that rule is limited to situations in which the officer initiates contact with the occupant of a vehicle while that person remains inside the vehicle. 531 U. S. 1069 (2001). We find, however, that we lack jurisdiction to decide the question.

On the evening at issue, officers were present at a home in Polk County, Florida, investigating the sale of marijuana and making arrests. Respondent Robert Thomas drove up to the residence, parked in the driveway, and walked toward the back of his vehicle. Officer J. D. Maney met Thomas at the rear of Thomas’ vehicle, and asked him his name and whether he had a driver’s license. After a cheek of Thomas’ license revealed an outstanding warrant for his arrest, Officer Maney arrested him, handcuffed him, and took him inside the residence. The officer then went back outside, alone, and searched Thomas’ ear. The search revealed several small bags containing a white substance that tested positive for methamphetamine.

Respondent was charged with possession of methamphetamine and related narcotics offenses. The trial court granted his motion to suppress the evidence of narcotics and narcotic paraphernalia. The Second District Court of Appeal reversed, 711 So. 2d 1241 (1998), finding the search valid under New York v. Belton, supra. The Supreme Court of Florida in turn reversed, holding that Belton did not apply.

The court held that “Belton’s bright-line rule is limited to situations where the law enforcement officer initiates contact with the defendant” while the defendant remains in the car. 761 So. 2d 1010, 1014 (2000). The court concluded that Belton was inapplicable, and directed that the trial court determine “whether the factors in Chimel [v. California, 395 U.S. 752 (1969),] justify the search of Thomas’ vehicle.” 761 So. 2d, at 1014. The court explained that “[b]ased on the record... we are unable to ascertain whether [the officer’s] safety was endangered or whether the preservation of the evidence was in jeopardy,” as necessary to justify the search under Chimel v. California, 395 U.S. 752 (1969), and remanded for further proceedings.

Although the parties did not raise the issue in their briefs on the merits, we must first consider whether we have jurisdiction to decide this ease. See Duquesne Light Co. v. Barasch, 488 U. S. 299, 306 (1989). Title 28 U. S. C. § 1257(a) authorizes this Court to review “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had ... where any title, right, privilege, or immunity is specially set up or claimed under the Constitution.” In a criminal prosecution, finality generally “is defined by a judgment of conviction and the imposition of a sentence.” Fort Wayne Books, Inc. v. Indiana, 489 U. S. 46, 54 (1989). But we have not, in practice, interpreted the finality rule so strictly. In certain circumstances, we have “treated state-court judgments as final for jurisdictional purposes although there were further proceedings to take place in the state court.” Flynt v. Ohio, 451 U.S. 619, 620-621 (1981) (per curiam). In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), we divided eases of this kind into four categories. None fits the judgment of the Florida Supreme Court, however, and we therefore conclude that its judgment is not final.

The first Cose category includes those cases in which “there are further proceedings — even entire trials — yet to occur in the state courts but where for one reason or another the federal issue is conclusive or the outcome of further proceedings preordained.” Id., at 479. The prototypical example of this category is Mills v. Alabama, 384 U.S. 214 (1966). There the Supreme Court of Alabama held that a statute which prohibited the publication of an editorial endorsement on election day did not violate the First Amendment, and remanded the case for trial. Id., at 216-217. Mills conceded that his only defense to the state charge was his constitutional claim; he admitted that he did publish the editorial. We held that this was a “final judgment” and took jurisdiction, saying that a trial “would be no more than a few formal gestures leading inexorably towards a conviction, and then another appeal to the Alabama Supreme Court for it formally to repeat its rejection of Mills’ constitutional contentions whereupon the ease could then once more wind its weary way back to us as a judgment unquestionably final and appealable. Such a roundabout process would not only be an inexcusable delay of the benefits Congress intended to grant by providing for appeal to this Court, but it would also result in a completely unnecessary waste of time and energy in judicial systems already troubled by delays due to congested dockets.” Id., at 217-218.

The decision of the Supreme Court of Florida here differs considerably from that of the state court in Mills. The Florida Supreme Court remanded the case not only for application of Chimel, but for further factfinding, and the State has not conceded that the search is invalid under Chimel.

In Goafs second category are those cases in whieh “the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.” 420 U. S., at 480. In Cox we used our decision in Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 (1946), to illustrate the second category. We said:

“In Radio Station WOW, the Nebraska Supreme Court directed the transfer of the properties of a federally licensed radio station and ordered an accounting, rejecting the claim that the transfer order would interfere with the federal license.... Nothing that could happen in the course of the accounting, short of settlement of the ease, would foreclose or make unnecessary decision on the federal question.” Cox, supra, at 480.

In this case, howeyer, were the Florida courts to find that Chimel allows the search, a decision on the Belton issue would no longer be necessary. We have also noted that we treat state-court judgments in this category as final on the assumption that “ ‘the federal questions that could come here have been adjudicated by the State court,’” and the state proceedings to take place on remand “‘could not remotely give rise to a federal question... that may later come here.’ ” Cox, 420 U.S., at 480. We cannot make that assumption in this ease.

Cases where “the federal claim has been finally decided, with farther proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case,” fall into Cox’s third category. Id., at 481. New York v. Quarles, 467 U.S. 649 (1984), is such a ease. Respondent was charged in state court with criminal possession of a weapon, and certain evidence was suppressed on federal constitutional grounds. We granted the petition for certiorari and reversed, explaining that the suppression ruling was a “final judgment” although respondent had yet to be tried. * Id., at 651. We said that this case fell within Cox’s third category because “should the State convict respondent at trial, its claim that certain evidence was wrongfully suppressed will be moot. Should respondent be acquitted at trial, the State will be precluded from pressing its federal claim again on appeal.” 467 U.S., at 651, and n. 1.

To deny review here would not necessarily cause Florida to go to trial without the suppressed evidence, with further appeal barred in the event of an acquittal or the federal claim mooted in the event of a conviction. The state court has yet to decide whether the evidence should be suppressed; that will be resolved on remand. If the State prevails on remand and the evidence is admitted under Chimel, then the Belton issue will be moot, and the State cannot seek review of it. But if the State loses, and the evidence is suppressed, Florida law allows the State to appeal, as long as it does so prior to trial. Fla. Stat. §924.071(1) (1996) (“The state may appeal from a pretrial order... suppressing evidence”); Fla. Rule App. Proe. 9.140(c)(1)(B) (2001) (“The state may appeal an order . . . suppressing before trial. . . evidence obtained by search and seizure”). Should the Supreme Court of Florida rule against the State on the Chimel issue, the question of suppression would be finally decided by the Florida courts, and the State could then seek cer-tiorari in this Court. At that time it could obtain review of both the Belton issue and the Chimel issue. See Jefferson v. City of Tarrant, 522 U. S. 75, 83 (1997).

The fourth Cox category includes those cases where “the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.” 420 U. S., at 482-483.

Here the State can make no claim of serious erosion of federal policy that is not common to all run-of-the-mine decisions suppressing evidence in criminal trials. The fourth Cox exception does not apply here.

For the foregoing reasons, we dismiss the writ of certiorari for want of jurisdiction.

It is so ordered.


author: Justice O’Connor Justice Thomas,

text:
    PENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
    No. 00-6677.
    Argued March 27, 2001
    Decided June 4, 2001

      Robert S. Smith argued the cause for petitioner. With him on the briefs were Julia Tarver and John E. Wright.

      Andy Taylor, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were John Cornyn, Attorney General, Gregory S. Coleman, Solicitor General, Michael T McCaul, Deputy Attorney General, Edward L. Marshall, Senior Assistant Attorney General, and Gena Blount Bunn and Tommy L. Skaggs, Assistant Attorneys General.

      Gene C. Schmrr argued the cause for the State of Alabama as amicus curiae urging affirmance. With him on the brief were Bill Pryor, Attorney General, J. Clayton Crenshaw, Assistant Attorney General, Carter G. Phillips, and Rebecca K. Smith

      Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W. Ellis, Michael B. Browde, Jeffrey J. Pokorak, and Stanley S. Herr; and for the National Association of Criminal Defense Lawyers by Edward M. Chikofsky, Lisa B. Kemler, John H. Pickering, and Christopher J Herrling.

      Briefs of amici curiae urging affirmance were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for Justice for All by Patrick F. Philbin.

        Richard Wilson and William J. Edwards filed a brief for the International Association for the Scientific Study of Intellectual Disabilities et al. as amici curiae.

   Justice O’Connor

delivered the opinion of the Court.

In 1989, we held that Johnny Paul Penry had been sentenced to death in violation of the Eighth Amendment because his jury had not been adequately instructed with respect to mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I). The State of Texas retried Penry in 1990, and that jury also found him guilty of capital murder and sentenced him to death. We now consider whether the jury instructions at Penry’s resentencing complied with our mandate in Penry I. We also consider whether the admission into evidence of statements from a psychiatric report based on an uncounseled interview with Penry ran afoul of the Fifth Amendment.

I

Johnny Paul Penry brutally raped and murdered Pamela Carpenter on October 25,1979. In 1980, a Texas jury found him guilty of capital murder. At the close of the penalty hearing, the jury was instructed to answer three statutorily mandated “special issues”:

“ ‘(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“*(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and “‘(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.’ ” Id., at 310 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989)).

The jury answered “yes” to each issue and, as required by statute, the trial court sentenced Penry to death. 492 U. S., at 310-311.

Although Penry had offered extensive evidence that he was mentally retarded and had been severely abused as a child, the jury was never instructed that it could consider and give mitigating effect to that evidence in imposing sentence. Id., at 320. Nor was any of the three special issues broad enough in scope that the jury could consider and give effect to the mitigating evidence in. answering the special issue. Id., at 322-325. While Penry’s mental retardation was potentially relevant to the first special issue — whether he had acted deliberately — we found no way to be sure that the jurors fully considered the mitigating evidence as it bore on the broader question of Penry’s moral culpability. Id., at 322-323. As to the second issue — whether Penry would be a future danger — the evidence of his mental retardation and history of abuse was “relevant only as an aggravating factor.” Id., at 323 (emphasis in original). And the evidence was simply not relevant in a mitigating way to the third issue — whether Penry had unreasonably responded to any provocation. Id., at 324-325.

The comments of counsel also failed to clarify the jury’s role. Defense counsel had urged the jurors to vote “no” on one of the special issues if they believed that Penry, because of the mitigating evidence, did not deserve to be put to death. The prosecutor, however, had reminded them of their “oath to follow the law and ... answe[r] these questions based on the evidence and following the law.” Id., at 325 (internal quotation marks omitted).

“In light of the prosecutor’s argument, and ... in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty,” we concluded that “a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” Id., at 326, 328. We thus vacated Penry’s sentence, confirming that in a capital case, “[t]he sentencer must... be able to consider and give effect to [mitigating] evidence in imposing sentence,” so that "‘the sentence imposed . . . reflee[ts] a reasoned moral response to the defendant’s background, character, and crime.’” Id., at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connoe, J., concurring) (emphasis in original)).

Penry was retried in 1990 and again found guilty of capital murder. During the penalty phase, the defense again put on extensive evidence regarding Penry’s mental impairments and childhood abuse. One defense witness on the subject of Penry’s mental impairments was Dr. Randall Price, a clinical neuropsychologist. On direct examination, Dr. Price testified that he believed Penry suffered from organic brain impairment and mental retardation. App. 276-279; 878. In the course of cross-examining Dr. Price, the prosecutor asked what records Price had reviewed in preparing his testimony. Price cited 14 reports, including a psychiatric evaluation of Penry prepared by Dr. Felix Peebles on May 19,1977. Id., at 327. The Peebles report had been prepared at the request of Penry’s then-counsel to determine Penry’s competency to stand trial on a 1977 rape charge — unrelated to the rape and murder of Pamela Carpenter. Id., at 55-60, 125. The prosecutor asked Dr. Price to read a specific portion of the Peebles report for the jury. Over the objection of defense counsel, Dr. Price recited that it was Dr. Peebles’ "professional opinion that if Johnny Paul Penry were released from custody, that he would be dangerous to other persons.” Id., at 413. The prosecutor again recited this portion of the Peebles report during his closing argument. Id., at 668.

When it came time to submit the case to the jury, the court instructed the jury to determine Penry’s sentence by answering three special issues — the same three issues that had been put before the jury in Penry I. Specifically, the jury had to determine whether Penry acted deliberately when he killed Pamela Carpenter; whether there was a probability that Penry would be dangerous in the future; and whether Penry acted unreasonably in response to provocation. App. 676-678. Cf. Penry I, 492 U.S., at 320.

The court told the jury how to determine its answers to those issues:

“[Bjefore any issue may be answered ‘Yes/ all jurors must be convinced by the evidence beyond a reasonable doubt that the answer to such issue should be Tes.’... [I]f any juror, after considering the evidence and these instructions, has a reasonable doubt as to whether the answer to a Special Issue should be answered ‘Yes,' then such juror should vote ‘No' to that Special Issue." App. 672-673.

The court explained the consequences of the jury’s decision:

“[I]f you return an affirmative finding on each of the special issues submitted to you, the court shall sentence the defendant to death. You are further instructed that if you return a negative finding on any special issue submitted to you, the court shall sentence the defendant to the Texas Department of Corrections for life. You are therefore instructed that your answers to the special issues, which determine the punishment to be assessed the defendant by the court, should be reflective of your finding as to the personal culpability of the defendant, JOHNNY PAUL PENRY, in this case." Id., at 674-675.

The court then gave the following ‘‘supplemental instruction":

“You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.” Id., at 675.

A complete copy of the instructions was attached to the verdict form, and the jury took the entire packet into the deliberation room. Tr. of Oral Arg. 31. The verdict form itself, however, contained only the text of the three special issues, and gave the jury two choices with respect to each special issue: “We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue is Tes,’” or “We, the jury, because at least ten (10) jurors have a reasonable doubt as to the matter inquired about in this Special Issue, find and determine that the answer to this Special Issue is ‘No.’ ” App. 676-678.

After deliberating for approximately 2Yz hours, the jury returned its punishment verdiet. See 51 Record 1948,1950. The signed verdict form confirmed that the jury had unanimously agreed that the answer to each special issue was “yes.” App. 676-678. In accordance with state law, the court sentenced Penry to death.

The Texas Court of Criminal Appeals affirmed Penry’s conviction and sentence. The court rejected Penry’s claim that the admission of language from the 1977 Peebles report violated Penry’s Fifth Amendment‘ privilege against self-incrimination. The court reasoned that because Dr. Peebles had examined Penry two years prior to the murder of Pamela Carpenter, Penry had not at that time been “confronted with someone who was essentially an agent for the State whose function was to gather evidence that might be used against him in connection with the crime for which he was incarcerated.” Penry v. State, 903 S.W. 2d 715, 759-760 (1995) (internal quotation marks and citation omitted).

The court also rejected Penry’s claim that the jury instructions given at his second sentencing hearing were constitutionally inadequate because they did not permit the jury to consider and give effect to his mitigating evidence of mental retardation and childhood abuse. The court cited Penry I for the proposition that when a defendant proffers “mitigating evidence that is not relevant to the special issues or that has relevance to the defendant’s moral culpability beyond the scope of the special issues ... the jury must be given a special instruction in order to allow it to consider and give effect to such evidence.” 903 S.W. 2d, at 765. Quoting the supplemental jury instruction given at Penry’s second trial, see supra, at 789-790, the court overruled Pen-ry’s claim of error. The court stated that “a nullification instruction such as this one is sufficient to meet the constitutional requirements of [Penry I]” 903 S. W. 2d, at 765.

In 1998, after his petition for state habeas corpus relief was denied, see App. 841 (trial court order); id., at 863 (Court of Criminal Appeals order), Penry filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. §2254 (1994 ed. and Supp. V) in the United States District Court for the Southern District of Texas. The District Court rejected both of Penry’s claims, finding that the Texas Court of Criminal Appeals’ conclusions on both points were neither contrary to, nor an unreasonable application of, clearly established federal law. App. 893, 920. After fidl briefing and argument, the United States Court of Appeals for the Fifth Circuit denied a certificate of appealability. 215 F. 3d 504 (2000).

We stayed Penry’s execution and granted certiorari to consider Penry’s constitutional arguments regarding the admission of the Peebles report and the adequacy of the jury instructions. 531 U.S. 1010 (2000).

II

Because Peary filed his federal habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that law govern the scope of our review. Specifically, 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V) prohibits a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

Last Term in Williams v. Taylor, 529 U.S. 362 (2000), we explained that the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have independent meaning. Id., at 404. A state court decision will be “contrary to” our clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in our eases,” or “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id., at 405-406. A state court decision will be an “unreasonable application of” our clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id., at 407-408.

“[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id., at 409. Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable. Id., at 410-411.

Although the District Court evaluated the Texas Court of Criminal Appeals’ disposition of Penry’s claims under a standard we later rejected in Williams, see App. 882 (stating that an application of law to facts is “unreasonable ‘only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect’” (citation omitted)), the Fifth Circuit articulated the proper standard of review, as set forth in § 2254(d)(1) and clarified in Williams, and denied Penry relief. Guided by this same standard, we now turn to the substance of Penry’s claims.

Ill

A

Penry contends that the admission into evidence of the portion of the 1977 Peebles report that referred to Penry’s future dangerousness violated his Fifth Amendment privilege against self-incrimination because he was never warned that the statements he made to Dr. Peebles might later be used against him. The Texas Court of Criminal Appeals disagreed, concluding that when Dr. Peebles interviewed Penry, Peebles was not acting as an agent for the State in order to gather evidence that might be used against Penry. 903 S.W. 2d, at 759.

Penry argues that this case is indistinguishable from Estelle v. Smith, 451 U.S. 454 (1981). In Estelle, we considered a situation in which a psychiatrist conducted an ostensibly neutral competency examination of a capital defendant, but drew conclusions from the defendant’s un-counseled statements regarding his future dangerousness, and later testified for the prosecution on that crucial issue. We likened the psychiatrist to “an agent of the State recounting unwarned statements made in a postarrest custodial setting,” and held that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id., at 467-468. The admission of the psychiatrist’s testimony under those “distinct circumstances” violated the Fifth Amendment. Id., at 466.

This case differs from Estelle in several respects. First, the defendant in Estelle had not placed his mental condition at issue, id., at 457, n. 1, whereas Penry himself made his mental status a central issue in both the 1977 rape case and his trials for Pamela Carpenter’s rape and murder. Second, in Estelle, the trial court had called for the competency evaluation and the State had chosen the examining psychiatrist. Id., at 456-457. Here, however, it was Penr/s own counsel in the 1977 case who requested the psychiatric exam performed by Dr. Peebles. Third, in Estelle, the State had called the psychiatrist to testify as a part of its affirmative case. Id., at 459. Here, it was during the cross-examination of Penr/s own psychological witness that the prosecutor elicited the quotation from the Peebles report. And fourth, in Estelle, the defendant was charged with a capital crime at the time of his competency exam, and it was thus clear that his future dangerousness would be a specific issue at sentencing. Penry, however, had not yet murdered Pamela Carpenter at the time of his interview with Dr. Peebles.

We need not and do not decide whether these differences affeet the merits of Penry’s Fifth Amendment claim. Rather, the question is whether the Texas court’s decision was contrary to or an unreasonable application of our precedent. 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V). We think it was not. The differences between this case and Estelle are substantial, and our opinion in Estelle suggested that our holding was limited to the "distinct circumstances” presented there. It also indicated that the Fifth Amendment analysis might be different where a defendant “intends to introduce psychiatric evidence at the penalty phase.” 451 U.S., at 472. Indeed, we have never extended Estelle's Fifth Amendment holding beyond its particular facts. Cf., e.g., Buchanan v. Kentucky, 483 U.S. 402 (1987) (Estelle does not apply, and it does not violate the Fifth Amendment, where a prosecutor uses portions of a psychiatric evaluation requested by a defendant to rebut psychiatric evidence presented by the defendant at trial). We therefore cannot say that it was objectively unreasonable for the Texas court to conclude that Penry is not entitled to relief on his Fifth Amendment claim.

Even if our precedent were to establish squarely that the prosecution’s use of the Peebles report violated Penr/s Fifth Amendment privilege against self-incrimination, that error would justify overturning Penr/s sentence only if Penry could establish that the error “‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We think it unlikely that Penry could make such a showing.

The excerpt from the Peebles report bolstered the State’s argument that Penry posed a future danger, but it was neither the first nor the last opinion the jury heard on that point. Four prison officials testified that they were of the opinion that Penry “would commit criminal acts of violence that would constitute a continuing threat to society.” App. 94, 104, 138; 47 Record 970. Three psychiatrists testified that Penry was a dangerous individual and likely to remain so. Two were the State’s own witnesses. See App. 487, 557. The third was Dr. Price — the same defense witness whom the prosecutor had asked to read from the Peebles report. Before that recitation, Dr. Price had stated his own opinion that “[i]f [Penry] was in the free world, I would consider him dangerous.” Id, at 892.

While the Peebles report was an effective rhetorical tool, it was by no means the key to the State’s case on the question whether Penry was likely to commit Mure acts of violence. We therefore have considerable doubt that the admission of the Peebles report, even if erroneous, had a “substantial and injurious effect” on the verdict. Brecht v. Abmhamson, supra, at 637. Accordingly, we will not disturb the Texas Court of Criminal Appeals’ rejection of Penr/s Fifth Amendment claim.

B

Penry also contends that the jury instructions given at his second sentencing hearing did not comport with our holding in Penry I because they did not provide the jury with a vehicle for expressing its reasoned moral response to the mitigating evidence of Peltry’s mental retardation and childhood abuse. The Texas Court of Criminal Appeals disagreed. The court summarized Penry I as holding that when a defendant proffers “mitigating evidence that is not relevant to the special issues or that has relevance to the defendant’s moral culpability beyond the scope of the special issues . . . the jury must be given a special instruction in order to allow it to consider and give effect to such evidence.” 908 S. W. 2d, at 765. The court then stated that the supplemental jury instruction given at Penry’s second sentencing hearing satisfied that mandate. Ibid.

The Texas court did not make the rationale of its holding entirely clear. On one hand, it might have believed that Penry I was satisfied merely by virtue of the fact that a supplemental instruction had been given. On the other hand, it might have believed that it was the substance of that instruction which satisfied Penry I.

While the latter seems to be more likely, to the extent it was the former, the Texas court clearly misapprehended our prior decision. Penry I did not hold that the mere mention of “mitigating circumstances” to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.” 492 U.S., at 319 (emphasis added). See also Johnson v. Texas, 509 U. S. 350, 381 (1993) (O’CONNOR, J., dissenting) (“[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances” (emphasis in original)). For it is only when the jury is given a “vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision,” Penry I, 492 U.S., at 328, that we can be sure that the jury “has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence,” id., at 319 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 305 (1976)).

The State contends that the substance of the supplemental instruction satisfied Penry I because it provided the jury with the requisite vehicle for expressing its reasoned moral response to Penry’s particular mitigating evidence. Specifically, the State points to the admittedly “less than artful” portion of the supplemental instruction which says:

“If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.” App. 675 (emphasis added). See also Brief for Respondent 16.

We see two possible ways to interpret this confusing instruction. First, as the portions italicized above indicate, it can be understood as telling the jurors to take Penry’s mitigating evidence into account in determining their truthful answers to each special issue. Viewed in this light, however, the supplemental instruction placed the jury in no better position than was the jury in Penry I. As we made clear in Penry I, none of the special issues is broad enough to provide a vehicle for the jury to give mitigating effect to the evidence of Penry’s mental retardation and childhood abuse. Cf. 492 U. S., at 322-325. In the words of Judge Dennis below, the jury’s ability to consider and give effect to Penry’s mitigating evidence was still “shackled and confined within the scope of the three special issues.” 215 F. 3d, at 514 (dissenting opinion). Thus, because the supplemental instruction had no practical effect, the jury instructions at Penry’s second sentencing were not meaningfully different from the ones we found constitutionally inadequate in Penry I.

Alternatively, the State urges, it is possible to understand the supplemental instruction as informing the jury that it could “simply answer one of the special issues 'no’ if it believed that mitigating circumstances made a life sentence . . . appropriate . . . regardless of its initial answers to the questions.” Brief for Respondent 16. The Texas Court of Criminal Appeals appeared to understand the instruction in this sense, when it termed the supplemental instruction a “nullification instruction.” 903 S. W. 2d, at 765. Even assuming the jurors could have understood the instruetion to operate in this way, the instruction was not as simple to implement as the State contends. Rather, it made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation.

The jury was clearly instructed that a “yes” answer to a special issue was appropriate only when supported “by the evidence beyond a reasonable doubt.” App. 672. A “no” answer was appropriate only when there was “a reasonable doubt as to whether the answer to a Special Issue should be . . . Tes.’ ” Id., at 673. The verdict form listed the three special issues and, with no mention of mitigating circumstances, confirmed and clarified the jury’s two choices with respect to each special issue. The jury could swear that it had unanimously determined “beyond a reasonable doubt that the answer to this Special Issue is Tes.’ ” Id., at 676-678. Or it could swear that at least 10 jurors had “a reasonable doubt as to the matter inquired about in this Special Issue” and that the jury thus had “determin[ed] that the answer to this Special Issue is ‘No.’” Ibid, (emphasis added).

In the State’s view, however, the jury was also told that it could ignore these clear guidelines and — even if there was in fact no reasonable doubt as to the matter inquired about— answer any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or more truthful “yes” answers to an untruthful “no” answer in order to avoid a death sentence for Penry.

We generally presume that jurors follow their instructions. See, e. g., Richardson v. Marsh, 481 U.S. 200, 211 (1987). Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry’s mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a “ ‘true verdict.’ ” Tex. Code Crim. Proe. Ann., Art. 35.22 (Vernon 1989).

The mechanism created by the supplemental instruction thus inserted “an element of capriciousness” into the sentencing decision, “making the jurors’ power to avoid the death penalty dependent on their willingness” to elevate the supplemental instruction over the verdict form instructions. Roberts v. Louisiana, 428 U.S. 325, 335 (1976) (plurality opinion). There is, at the very least, “a reasonable likelihood that the jury ... applied the challenged instruction in a way that prevented] the consideration” of Penr/s mental retardation and childhood abuse. Boyde v. California, 494 U.S. 370, 380 (1990). The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Perry’s mitigating evidence.

Even though the Texas Court of Criminal Appeals focused solely on the supplemental instruction in affirming Perry’s sentence, the State urges us to evaluate the instruction contextually, with reference to the comments of the prosecutor and defense counsel, as well as the comments of the court during voir dire. Indeed, we have said that we will approach jury instructions in the same way a jury would — with a “commonsense understanding of the instructions in the light of all that has taken place at the trial.” Id., at 381. Penry I itself illustrates this methodology, as there we evaluated the likely effect on the jury of the comments of the defense counsel and prosecutor. 492 U.S., at 325-326. As we did there, however, we conclude that these comments were insufficient to clarify the confusion caused by the instructions themselves.

Voir dire was a month-long process, during which approximately 90 prospective jurors were interviewed. See 3 Record (index of transcripts). Many of the venire members— including each of the 12 jurors who was eventually empaneled — received a copy of an instruction largely similar to the supplemental instruction ultimately given to the jury. After each juror read the instruction, the judge attempted to explain how it worked. See, e. g., 18 Record 966-967 (“[I]f you thought the mitigating evidence was sufficient . . . you might, even though you really felt those answers [to the three special issues] should be yes, you might answer one or more of them no ... so [Penry] could get the life sentence rather than the death penalty”). The prosecutor then attempted to explain the instruction. See, e. g., id., at 980 (“[E]ven though [you] believe all three of these answers are yes, [you] don’t think the death penalty is appropriate for this particular person because of what has happened to him in the past.... [The] instruction is to give effect to that belief and answer one or all of these issues no”). And with most of the jurors, defense counsel also gave a similar explanation. See, e. g., id., at 1018 (“[I]f you believe[d] [there] was a mitigating circumstance... you [could] apply that mitigation to answer — going back and changing an answer from yes to a no”).

While these comments reinforce the State’s construction of the supplemental instruction, they do not bolster our confidence in the jurors’ ability to give effect to Penry’s mitigating evidence in deciding his sentence. Rather, they highlight the arbitrary way in which the supplemental instruction operated, and the fact that the jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence.

Moreover, we are skeptical that, by the time their penalty phase deliberations began, the jurors would have remembered the explanations given during voir dire, much less taken them as a binding statement of the law. Voir dire began almost two fall months before the penalty phase deliberations. In the interim, the jurors had observed the rest of voir dire, listened to a 5-day guilt-phase trial and extensive instructions, participated in 2Vz hours of deliberations with respect to Penry’s guilt, and listened to another 5-day trial on punishment. The comments of the court and counsel during voir dire were surely a distant and convoluted memory by the time the jurors began their deliberations on Penry’s sentence.

The State also contends that the closing arguments in the penalty phase clarified matters. Penry’s counsel attempted to describe the jury’s task:

“If, when you thought about mental retardation and the child abuse, you think that this guy deserves a life sentence, and not a death sentence, . . . then, you get to answer one of. . . those questions no. The Judge has not told you which question, and you have to give that answer, even if you decide the literally correct answer is yes. Not the easiest instruction to follow and the law does funny things sometimes.” App. 640.

Again, however, this explanation only reminded the jurors that they had to answer the special issues dishonestly in order to give effect to Penry’s mitigating evidence. For the reasons discussed above, such a “clarification” provided no real help. Moreover, even if we thought that the arguments of defense counsel could be an adequate substitute for statements of the law by the court, but see Boyde v. California, supra, at 384, the prosecutor effectively neutralized defense counsel’s argument, as did the prosecutor in Penry I, by stressing the jury’s duty “[t]o follow your oath, the evidence and the law.” App. 616. At best, the jury received mixed signals.

Our opinion in Penry I provided sufficient guidance as to how the trial court might have drafted the jury charge for Penry’s second sentencing hearing to comply with our mandate. We specifically indicated that our concerns would have been alleviated by a jury instruction defining the term “deliberately” in the first special issue “in a way that would clearly direct the jury to consider fully Penr/s mitigating evidence as it bears on his personal culpability.” 492 U. S., at 328. The trial’court surely could have drafted an instruction to this effect. Indeed, Penry offered two definitions of “deliberately” that the trial court refused to give. See Tr. of Oral Arg. 12,14-15.

A clearly drafted catchall instruction on mitigating evidence also might have complied with Penry I. Texas’ current capital sentencing scheme (revised after Perry’s second trial and sentencing) provides a helpful frame of reference. Texas now requires the jury to decide “[wjhether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” Tex. Code Grim. Proc. Ann., Art. 37.071(2)(e)(l) (Vernon Supp. 2001). Perry’s counsel, while not conceding the issue, admitted that he “would have a tough time saying that [Penry I] was not complied with under the new Texas procedure.” Tr. of Oral Arg. 16. At the very least, the brevity and clarity of this instruction highlight the confusing nature of the supplemental instruction actually given, and indicate that the trial court had adequate alternatives available to it as it drafted the instructions for Perry’s trial.

Thus, to the extent the Texas Court of Criminal Appeals concluded that the substance of the jury instructions given at Penry’s second sentencing hearing satisfied our mandate in Penry I, that determination was objectively unreasonable. Cf. Shafer v. South Carolina, ante, at 40, 50 (holding on direct review that the South Carolina Supreme Court "incorrectly limited” our holding in Simmons v. South Carolina, 512 U.S. 154 (1994), because the court had miseharaeterized “how the State’s new [capital sentencing] scheme works”). The three special issues submitted to the jury were identical to the ones we found constitutionally inadequate as applied in Penry I. Although the supplemental instruction made mention of mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical. The comments of the court and counsel accomplished little by way of clarification. Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion we reached in Penry I: "[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence,” 492 U.S., at 326.

The judgment of the United States Court of Appeals for the Fifth Circuit is therefore affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

with whom The Chief Justice and Justice Scalia join,

concurring in Parts I, II, and III-A, and dissenting in Part III-B.

Two Texas juries have now deliberated and reasoned that Penry’s brutal rape and murder of Pamela Carpenter warrants the death penalty under Texas law. And two opinions of this Court have now overruled those decisions on the ground that the sentencing courts should have said more about Penry’s alleged mitigating evidence. Because I believe the most recent sentencing court gave the jurors an opportunity to consider the evidence Penry presented, I respectfully dissent.

As a habeas reviewing court, we are not called upon to propose what we believe to be the ideal instruction on how a jury should take into account evidence related to Penry’s childhood and mental status. Our job is much simpler, and it is significantly removed from writing the instruction in the first instance. We must decide merely whether the conclusion of the Texas Court of Criminal Appeals — -that the sentencing court’s supplemental instruction explaining how the jury could give effect to any mitigating value it found in Penry’s evidence satisfied the requirements of Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I) — was “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000). See also 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V).

At Penry’s first sentencing, the court read to the jury Texas’ three special issues for capital sentencing. The court did not instruct the jury that “it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence.” 492 U.S., at 320. The prosecutor also did not' offer any way for the jury to give mitigating effect to the evidence, but instead simply reiterated that the jury was to answer the three questions and follow the law. In Penry I, this Court concluded that, “[i]n light of the prosecutor’s argument, and in the absence of appropriate jury instructions, a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” Id., at 326.

At Penry’s second sentencing, the court read to the jury the same three special issues. In contrast to the first sentencing, however, the court instructed the jury at length that it could consider Penry’s proffered evidence as mitigating evidence and that it could give mitigating effect to that evidence. See ante, at 789-790. The Texas Court of Criminal Appeals concluded that this supplemental instruction “allow[ed] [the jury] to consider and give effect to” Penry’s proffered mitigating evidence and therefore was “sufficient to meet the constitutional requirements of [Penry I]” Penry v. State, 903 S. W. 2d 715, 765 (1995). In my view, this decision is not only objectively reasonable but also compelled by this Court’s precedents and by common sense.

“In evaluating the instructions, [a court should] not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would- — with a ‘eommonsense understanding of the instructions in the light of all that has taken place at the trial.’” Johnson v. Texas, 509 U.S. 350, 368 (1993) (quoting Boyde v. California, 494 U.S. 370, 381 (1990)). The Texas court’s instruction, read for common sense, or, even after a technical parsing, tells jurors that they may consider the evidence Penry presented as mitigating evidence and that, if they believe the mitigating evidence makes a death sentence inappropriate, they should answer “no” to one of the special issues. Given this straightforward reading of the instructions, it is objectively reasonable, if not eminently logical, to conclude that a reasonable juror would have believed he had a “vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” 492 U. S., at 326.

It is true that Penr/s proffered evidence did not fit neatly into any of the three special issues for imposing the death penalty under Texas law. But the sentencing court told the jury in no uncertain terms precisely how to follow this Court’s directive in Penry I. First, the sentencing court instructed the jury that it could consider such evidence to be mitigating evidence. See App. 675 (“[W]hen you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case”). Next, the court explained to the jury how it must give effect to the evidence. Ibid. (“If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue”). And finally, the court unambiguously instructed: “If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues” Ibid, (emphasis added). Without performing legal acrobatics, I cannot make the instruction confusing. And I certainly cannot do the contortions necessary to find the Texas appellate court's decision "objectively unreasonable." I simply do not share the Court’s confusion as to how a juror could consider mitigating evidence, decide whether it makes a death sentence inappropriate, and respond with a “yes” or “no” depending on the answer.

Curiously, this Court concludes that the supplemental instruction “inserted 'an element of capriciousness’ into the sentencing decision, ‘making the jurors’ power to avoid the death penalty dependent on their willingness’ to elevate the supplemental instruction over the verdict form, instructions.” Ante, at 800 (quoting Roberts v. Louisiana, 428 U.S. 325, 335 (1976) (plurality opinion)). Any reference to Roberts, however, is wholly misplaced. Roberts involved a situation in which the jury was told to find the defendant guilty of a lesser included offense, unsupported by any evidence, if the jury did not want him to be sentenced to death. Id., at 334-335. In Penr/s case there was no suggestion, express or implied, made to the jury that it could disregard the evidence. On the contrary, it was instructed on how to give effect to Peltry’s proffered evidence, as required by this Court in Penry I. Tellingly, the Roberts plurality stated in full that “[tjhere is an element of capriciousness in making the jurors’ power to avoid the death penalty dependent on their willingness to aecept this invitation to disregard the trial judge's instructions.” 428 U.S., at 335 (emphasis added). In Penry’s ease, the judge’s instructions included an explanation of how to answer the three special issues and how to give effect to the mitigating evidence.

Finally, contrary to the Court’s claim that the jury received “mixed signals,” ante, at 802, it appears that it is the Texas courts that have received the mixed signals. In Jurek v. Texas, 428 U.S. 262 (1976), this Court upheld the Texas sentencing statute at issue here against attack under the Eighth and Fourteenth Amendments. The joint opinion in Jurek concluded that the statute permits the jury “to consider whatever evidence of mitigating circumstances the defense can bring before it” and “guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” Id., at 273-274 (opinion of Stewart, Powell, and Stevens, JJ.). Then, while purporting to distinguish, rather than to overrule, Jurek, this Court in Pemry I determined that the same Texas statute was constitutionally insufficient by not permitting jurors to give effect to mitigating evidence. 492 U. S., at 328. See also id., at 355-856 (Scalia, J., dissenting) (explaining how Penry I contradicts Jurek’s conclusions). According to the Court, an instruction informing the jury that it could give effect to the mitigating evidence was necessary. 492 U. S., at 328. And in today’s decision, this Court yet again has second-guessed itself and decided that even this supplemental instruction is not constitutionally sufficient.

       Another recent development in Texas is the passage of a bill banning the execution of mentally retarded persons. See Babineck, Perry: Death-penalty measure needs analyzing, Dallas Morning News, May 31, 2001, p. 27A. As this opinion'goes to press, Texas Governor Rick Perry is still in the process of deciding whether to sign the bill. Ibid.

       The special issues are:
      ‘“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
      ‘“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
      '“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.’ ” Penry 1,492 U. S. 302,310 (1989) (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989)).

       This Court’s suggestion that the Texas court may have believed that any supplemental instruction, regardless of its substance, would satisfy Penry Ps requirement, see ante, at 796-797, is specious. The Texas court explained that a “jury must be given a special instruction in order to allow it to consider and give effect to such evidence”

        , it quoted the full text of the supplemental instruction; and it concluded that “a nullification instruction such as this one is sufficient to meet the constitutional requirements of [Penry I].” Penry v. State, 903 S. W. 2d 715, 765 (1995) (emphasis added). It is quite obvious that the court based its legal conclusion on the content of the supplemental instruction.

       I am still bewildered as to why this Court finds it unconstitutional for Texas to limit consideration of mitigating evidence to those factors relevant to the three special issues. See Graham v. Collins, 506 U.S. 461, 478 (1993) (Thomas, J., concurring). But we need not address this broader issue to uphold Ferny’s sentence.

       I think we need not look beyond the court’s instructions in evaluating the Texas appellate court’s decision. But even if there were any doubt as to whether the instruction led the jurors to believe there was a vehicle for giving mitigating effect to Penr/s evidence, the instruction was made dear “ ‘in the light of all that ha[d] taken place at the trial.’ ” Johnson v. Texas, 509 U. S. 350,368 (1993). The judge and prosecutor fully explained how to give effect to mitigating evidence during the voir dire process, and defense counsel made the instruction dear in dosing: “[i]f, when you thought about mental retardation and the child abuse, you think that this guy deserves a life sentence, and not a death sentence,... then, you get to answer one of.. . those questions no,” App. 640. Even if the jurors had forgotten what they had been told at voir dire, see ante, at 801-802, an assumption that I find questionable given our presumptions about jurors’ ability to remember and follow instructions, see, e. g., Weeks v. Ange-lone, 528 U. S. 225,234 (2000), the defense counsel’s explanation from closing arguments would have been fresh on their minds.
      Despite the Court’s assertion that defense counsel told the jurors to answer the questions dishonestly, ante, at 802, it seems to me that the jurors reasonably could have believed that they could honestly answer any question “no” if they found that the death sentence would be inappropriate given the mitigating evidence. They could follow their “ ‘oath, the evidence and the law,’” ibid, (quoting the prosecutor’s statement, App. 616), by truthfully concluding that the evidence of Penny's childhood and mental status did not warrant the death penalty and by writing “no” next to one of the special issues.