author: Per Curiam. Justice Stevens, Justice White,

text:
    MONTANA v. IMLAY
    No. 91-687.
    Argued October 7, 1992
    Decided November 3, 1992

      Marc Racicot, Attorney General of Montana, argued the cause for petitioner. With him on the briefs was Elizabeth L. Griffing, Assistant Attorney General.

      Billy B. Miller argued the cause and filed briefs for respondent.

      Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson; and for the State of Vermont et al. by Jeffrey L. Amestoy, Attorney General of Vermont, and Donald F. Hartman, Jr., Assistant Attorney General, and by the Attorneys General for their respective States as follows: Charles E. Cole of Alaska, Paul J. McMurdie of Arizona, Charles M. Oberly III of Delaware, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Robert J. Del Tufo of New Jersey, Lacy H. Thornburg of North Carolina, Lee Fisher of Ohio, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Paul Van Dam of Utah, and Mary Sue Terry of Virginia.

        John E. B. Myers filed a brief for the American Professional Society on the Abuse of Children as amicus curiae.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Justice Stevens,

concurring.

When the trial judge revoked respondent’s parole, he reinstated a 5-year sentence of imprisonment. On appeal, the Montana Supreme Court, in the decision before us, vacated the revocation order and remanded the case for resentencing. 249 Mont. 82, 813 P. 2d 979 (1991). The trial court subsequently resentenced respondent, again to a 5-year term of imprisonment, and the Montana Supreme Court upheld that sentence in a judgment not now before us for review.

Thus, no matter which party might prevail in this Court, the respondent’s term of imprisonment will be the same. At oral argument, neither counsel identified any way in which the interests of his client would be advanced by a favorable decision on the merits — except, of course, for the potential benefit that might flow from an advisory opinion. Because it is not the business of this Court to render such opinions, it wisely decides to dismiss a petition that should not have been granted in the first place.

Justice White,

We granted certiorari to consider whether the Fifth Amendment bars a State from conditioning probation upon' the probationer’s successful completion of a therapy program in which he would be required to admit responsibility for his criminal acts. In the decision below, the Montana Supreme Court held that, “absent any grant of immunity” from prosecution for incriminating statements made during therapy, the Fifth Amendment “prohibit^] augmenting a defendant’s sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination.” 249 Mont. 82, 91, 813 P. 2d 979, 985 (1991). The constitutional question is an important one and the decision below places the Montana Supreme Court in conflict with other courts. See State v. Gleason, 154 Vt. 205, 576 A. 2d 1246 (1990); Henderson v. State, 543 So. 2d 344 (Fla. App. 1989); Russell v. Eaves, 722 F. Supp. 558 (ED Mo. 1989), appeal dism’d, 902 F. 2d 1574 (CA8 1990). I believe we should decide the question and resolve the conflict.

As an initial matter, there can be no doubt that the decision below is a “final judgment” for purposes of 28 U. S. C. §1257. Although the Montana Supreme Court remanded the case for resentencing, this is clearly a case in which “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.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975); see also Brady v. Maryland, 373 U. S. 83, 85, n. 1 (1963).

At oral argument, however, two further questions were raised concerning whether any live controversy persists in this case. First, counsel for respondent stated that his client had been assured by state corrections officials that he would be paroled in the very near future. If this were true, the outcome of this case could have no practical effect upon respondent’s sentence. Second, counsel for petitioner stated his belief that a probationer would enjoy immunity from prosecution for incriminating statements made during court-ordered therapy. This statement calls into doubt a critical assumption underpinning the Montana Supreme Court’s judgment and might suggest that there really is no disagreement about the Fifth Amendment’s application to this case.

In my view, however, neither party’s representation is sufficient to deprive this case of its status as a case or controversy. First, as counsel for both parties readily acknowledged, there is nothing in the record to support the expectation of respondent’s counsel that respondent will be paroled shortly without regard to his completion of the State’s, therapy program. As far as the record is concerned, a decision in this case would affect respondent’s eligibility for parole and thus have real consequences for the litigants.

Nor does the State’s “concession” that a defendant would have immunity from prosecution based upon incriminating statements made to a therapist moot this case or otherwise render it unsuitable for review. This “concession” appeared to rest solely on the State’s assumption that this Court’s decision in Minnesota v. Murphy, 465 U. S. 420 (1984), mandated such a result. That reading of Murphy, however, is at least debatable. Because the State’s concession appears to reflect a possible misunderstanding of its obligations under the law rather than any unequivocal and unconditional declaration of its own future prosecutorial policy, this statement does not moot this case or obviate the controversy. If its reading of Murphy were shown to be erroneous, the State might well revert to the view that a defendant could be prosecuted on the basis of statements made during postconviction therapy. Such a qualified concession is too uncertain a basis to find that no live controversy is presented. Cf. United States v. Generix Drug Corp., 460 U. S. 453, 456, n. 6 (1983); United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968). In any event, the Montana Supreme Court evidently was of the view that no grant of immunity protected respondent or others in his position and the State continues to suffer the consequences of its constitutional holding.

Because I believe that a genuine and important controversy is presented in this case, I respectfully dissent from the dismissal of the writ of certiorari.

      Indeed, counsel for the State went so far as to explain that a victory for Montana on the merits would actually work to the advantage of respondent, by subjecting him to treatment leading to parole eligibility:
      “Question: So you’re really trying to advance his [respondent’s] interests?
      “[Answer]: Yes, sir, we are.
      “Question: He is better off if you win than if you lose.
      “[Answer]: In our judgment that is certainly the case.” Tr. of Oral Arg. 5.


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    CHURCH OF SCIENTOLOGY OF CALIFORNIA v. UNITED STATES et al.
    No. 91-946.
    Argued October 6, 1992
    Decided November 16, 1992

      Stevens, J., delivered the opinion for a unanimous Court.

      Eric M. Lieberman argued the cause for petitioner. With him on the briefs were David B. Goldstein, Hillary Richard, and Michael Lee Hertzberg.

      Deputy Solicitor General Wallace argued the cause for the respondents. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Griffin, Kent L. Jones, Charles E. Brookhart, and John A. Dudeck, Jr.

   Justice Stevens

delivered the opinion of the Court.

Two tapes recording conversations between officials of the Church of Scientology (Church) and their attorneys in July 1980 have been the principal bone of contention in this, and two earlier, legal proceedings.

In an action filed in the Los Angeles County Superior Court, the Church contended that the defendant had unlawfully acquired possession of the tapes. Pending resolution of that action, the state court ordered its Clerk to take custody of the tapes and certain other documents.

In 1984, in connection with an investigation of the tax returns of L. Ron Hubbard, founder of the Church of Scientology, the Internal Revenue Service (IRS) sought access to the Church documents in the state-court Clerk’s possession. After the Clerk was served with an IRS summons, he permitted IRS agents to examine and make copies of the tapes. Thereafter, in a federal action initiated by the Church in the Central District of California, the District Court entered a temporary restraining order directing the IRS to file its copies of the tapes, and all related notes, with the federal court. Those copies were subsequently returned to the Clerk of the state court.

On January 18, 1985, the IRS commenced this proceeding by filing a petition to enforce the summons that had previously been served on the state-court Clerk. The Church intervened and opposed production of the tapes on the ground that they were protected by the attorney-client privilege. After protracted proceedings, including review in this Court, see United States v. Zolin, 491 U. S. 554 (1989), on April 15,1991, the District Court entered an order enforcing compliance with the summons. The Church filed a timely notice of appeal and unsuccessfully sought a stay of that order. While the appeal was pending, copies of the tapes were delivered to the IRS. Thereafter, the Court of Appeals ordered the Church to show cause why its appeal should not be dismissed as moot. After briefing on the mootness issue, the court dismissed the appeal. It explained:

“Because it is undisputed that the tapes have been turned over to the IRS in compliance with the summons enforcement order, no controversy exists presently and this appeal is moot.” United States v. Zolin, No. 91-55506 (CA9, Sept. 10, 1991).

We granted the Church’s petition for certiorari to consider the narrow question whether the appeal was properly dismissed as moot. 503 U. S. 905 (1992).

h-i

It has long been settled that a federal court has no authority “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Mills v. Green, 159 U. S. 651, 653 (1895). See also Preiser v. Newkirk, 422 U. S. 395, 401 (1975); North Carolina v. Rice, 404 U. S. 244, 246 (1971). For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant “any effectual relief whatever” to a prevailing party, the appeal must be dismissed. Mills, 159 U. S., at 653. In this case, after the Church took its appeal from the April 15 order, in compliance with that order copies of the tapes were delivered to the IRS. The Government contends that it was thereafter impossible for the Court of Appeals to grant the Church any effectual relief. We disagree.

While a court may not be able to return the parties to the status quo ante — there is nothing a court can do to withdraw all knowledge or information that IRS agents may have acquired by examination of the tapes — a court can fashion some form of meaningful relief in circumstances such as these. Taxpayers have an obvious possessory interest in their records. When the Government has obtained such materials as a result of an unlawful summons, that interest is violated and a court can effectuate relief by ordering the Government to return the records. Moreover, even if the Government retains only copies of the disputed materials, a taxpayer still suffers injury by the Government’s continued possession of those materials, namely, the affront to the taxpayer’s privacy. A person’s interest in maintaining the privacy of his “papers and effects” is of sufficient importance to merit constitutional protection. Indeed, that the Church considers the information contained on the disputed tapes important is demonstrated by the long, contentious history of this litigation. Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, a court does have power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession. The availability of this possible remedy is sufficient to prevent this case from being moot.

The Government argues, however, that these basic principles are inapplicable in IRS summons enforcement proceedings because of the particular nature of the statute governing such proceedings. Reasoning from the premise that federal courts are empowered to consider only those matters within their jurisdiction, the Government argues that in IRS summons enforcement proceedings the subject-matter jurisdiction of the district court is limited to determining only whether the court should “compel . . . production of” the information requested by the summons. 26 U. S. C. §§ 7402(b), 7604(a). See n. 4, supra. Once the court has answered that question and compliance has occurred, there is nothing more for the district court to decide and the jurisdiction of the district court evaporates.

We think the Government misconceives the inquiry in this case. The Government may or may not be right that under §§ 7402(b) and 7604(a) the jurisdiction of the district court is limited to those matters directly related to whether or not the summons should be enforced. Indeed, the scope of the district court’s jurisdiction under those provisions was the issue over which this Court deadlocked in United States v. Zolin, 491 U. S. 554 (1989). The question presented in the current incarnation of this case is whether there was jurisdiction in the appellate court to review the allegedly unlawful summons enforcement order. On that question, the Government’s elaborate statutory argument is largely irrelevant. There is nothing in the statute to suggest that Congress sought to preclude appellate review of district court enforcement orders. To the contrary, we have expressly held that IRS summons enforcement orders are subject to appellate review. See Reisman v. Caplin, 375 U. S. 440, 449 (1964). Thus, whether or not there is jurisdiction in the appellate court to review the District Court’s order turns not on the subject matter of Congress’ jurisdictional grant to the district courts, but on traditional principles of justiciability, namely, whether an intervening event has rendered the controversy moot. And, as we have already explained, this case is not moot because if the summons were improperly issued or enforced a court could order that the IRS’ copies of the tapes be either returned or destroyed.

I — Í

We recognize that several Courts of Appeals have accepted the Government’s argument in IRS enforcement proceedings, but the force of that line of authority is matched by a similar array of decisions reaching a contrary conclusion in proceedings enforcing Federal Trade Commission (FTC) discovery requests. There is no significant difference between the governing statutes that can explain the divergent interpretations. Nor is there any reason to conclude that production of records relevant to a tax investigation should have mootness consequences that production of other business records does not have. Moreover, in construing these provisions of the Internal Revenue Code, the Court has considered it appropriate to rely on its earlier cases involving other statutes, including the Federal Trade Commission Act. See United States v. Powell, 379 U. S. 48, 57 (1964) (citing United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950)).

We therefore conclude that the appeal was improperly dismissed as moot. In so concluding we express no opinion on the merits of the Church’s argument that the Government did not establish an adequate evidentiary basis to support the District Court’s determination that the tapes fell within the crime-fraud exception to the attorney-client privilege. Nor do we express any opinion about the res judicata contention advanced in the Government’s brief in opposition to the petition for certiorari. Brief for United States in Opposition 13-14. We simply hold that compliance with the summons enforcement order did not moot the Church’s appeal.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

        Church of Scientology of California v. Armstrong, No. C420 153.

       The Commissioner of Internal Revenue, as the delegate of the Secretary of the Treasury, has broad authority to examine the accuracy of federal tax returns. See generally Donaldson v. United States, 400 U. S. 517, 523-525 (1971). Section 7602(a) of the Internal Revenue Code authorizes the Secretary to summon any person to provide documents relevant to such an examination:
      “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary is authorized—
      “(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry.” 26 U. S. C. § 7602(a).

        Church of Scientology v. Armstrong, No. CV 84-9003-HLH (CD Cal., Nov. 27, 1984).

       Sections 7402(b) and 7604(a) confer jurisdiction on the federal district courts to enforce a summons issued by the IRS. Title 26 U. S. C. § 7402(b) provides:
      “If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.”
      Section 7604(a) is virtually identical to § 7402(b) except that the word “records” appears in § 7604(a).

       The Fourth Amendment provides:
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Petitioner also argues that a court can effectuate further relief by ordering the IRS to refrain from any future use of the information that it has derived from the tapes. Such an order would obviously go further towards returning the parties to the status quo ante than merely requiring the IRS to return the tapes and all copies thereof. However, as there is no guarantee that the IRS will in fact use the information gleaned from the tapes, it could be argued that such an order would be an impermissible advisory opinion. Cf. G. M. Leasing Corp. v. United States, 429 U. S. 338, 369 (1977) (suppression of fruits of illegal IRS search “premature” as issue can be considered “if and when proceedings arise in which the Government seeks to use the documents or information obtained from them”). But see FTC v. Gibson Products of San Antonio, Inc., 569 F. 2d 900, 903 (CA6 1978) (court can effectuate relief, despite compliance with FTC subpoena, by requiring FTC to return subpoenaed documents and forbidding FTC to use materials in adjudicatory hearing). Because we are concerned only with the question whether any relief can be ordered, we leave the “future use” question for another day. For now, we need only hold' that this case is not moot because a court has power to order the IRS to return or destroy any copies of the tapes that it may have in its possession.

       In Zolin, the District Court enforced the IRS summons, but placed restrictions on the IRS’ ability to disclose the summoned materials to any other government agency. The Ninth Circuit affirmed, United States v. Zolin, 809 F. 2d 1411, 1416-1417 (1987), and we granted certiorari in part to consider whether the District Court, in conditioning its enforcement of the IRS summons, exceeded its jurisdiction under §§ 7402(b) and 7604(a). Zolin, 491 U. S., at 556. We were evenly divided on that question and therefore affirmed the Ninth Circuit. Id., at 561. The issue still divides the lower courts. Compare United States v. Zolin, 809 F. 2d, at 1416-1417, and United States v. Author Services, Inc., 804 F. 2d 1520, 1525-1526 (CA9 1986) (district court has “considerable” discretion to set terms of enforcement order), opinion amended, 811 F. 2d 1264 (1987), with United States v. Barrett, 837 F. 2d 1341 (CA5 1988) (en banc) (district court lacks authority to “conditionally enforce” IRS summons; inquiry limited to single question of whether summons should be enforced), cert. denied, 492 U. S. 926 (1989).

        United States v. Kersting, 891 F. 2d 1407, 1410, n. 8 (CA9 1989), cert. denied, 498 U. S. 812 (1990); Hintze v. IRS, 879 F. 2d 121, 124-125 (CA4 1989); United States v. Church of World Peace, 878 F. 2d 1281 (CA10 1989); United States v. Sherlock, 756 F. 2d 1145, 1146-1147 (CA5 1985); United States v. First Family Mortgage Corp., 739 F. 2d 1275, 1278-1279 (CA7 1984); United States v. Kis, 658 F. 2d 526, 533 (CA7 1981), cert. denied, 455 U. S. 1018 (1982); United States v. Equity Farmers Elevator, 652 F. 2d 752 (CA8 1981); United States v. Silva & Silva Accountancy Corp., 641 F. 2d 710, 711 (CA9 1981); United States v. Deak-Perera Int’l Banking Corp., 610 F. 2d 89 (CA2 1979); Kurshan v. Riley, 484 F. 2d 952 (CA4 1973); United States v. Lyons, 442 F. 2d 1144, 1145 (CA1 1971). But see Gluck v. United States, 771 F. 2d 750 (CA3 1985).

       See FTC v. Gibson Products of San Antonio, Inc., 569 F. 2d, at 903 (compliance with district court order enforcing FTC subpoena does not moot appeal; court can effectuate relief by requiring FTC to return subpoenaed documents and forbidding FTC from using materials in adjudicatory hearing); FTC v. Ernstthal, 197 U. S. App. D. C. 174, 175, 607 F. 2d 488, 489 (1979) (compliance with FTC subpoena does not moot appeal where court can order FTC to return subpoenaed documents); Atlantic Richfield Co. v. FTC, 546 F. 2d 646, 650 (CA5 1977) (same); FTC v. Browning, 140 U. S. App. D. C. 292, 293-294, n. 1, 435 F. 2d 96, 97-98, n. 1 (1970) (same). Cf. FTC v. Invention Submission Corp., 296 U. S. App. D. C. 124, 127, n. 1, 965 F. 2d 1086, 1089, n. 1 (1992) (compliance with district court order enforcing FTC civil investigative demand pursuant to 15 U. S. C. § 57b-l(e) does not moot appeal as court could order FTC “to return responsive materials and to destroy any records derived from them”); Casey v. FTC, 578 F. 2d 793 (CA9 1978) (action seeking to enjoin FTC investigation presents live controversy despite parties’ compliance with FTC subpoena as appellate court can order FTC to return wrongfully subpoenaed records). See also Government of Territory of Guam v. Sea-Land Service, Inc., 294 U. S. App. D. C. 292, 295, 958 F. 2d 1150, 1153 (1992) (compliance with district court order enforcing Federal Maritime Commission discovery order does not moot appeal where party seeks return of discovered materials).
      There is no merit to the Government’s contention that the FTC cases are distinguishable in that they involve adjudicative, as opposed to investigative, subpoenas. While Gibson Products involved an adjudicative subpoena, Invention Submission, Casey, and Atlantic Richfield all involved investigative subpoenas.

       In fact, the summons enforcement provisions of the Internal Revenue Code “closely paralle[lj” the corresponding provisions of the Federal Trade Commission Act. See Handler, Recent Antitrust Developments— 1964, 63 Mich. L. Rev. 69, 90 (1964). Section 9 of the FTC Act provides, in pertinent part:
      “Any of the district courts of the United States . . . may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation ... to produce documentary evidence if so ordered ....” 38 Stat. 722, as amended, 15 U. S. C. §49.
      In the words of Professor Handler:
      “Section 7602 of the Internal Revenue Code authorizes the Secretary of the Treasury or his delegate to summon taxpayers or other witnesses to testify and to produce relevant and material documents. Section 9 of the FTC Act grants the same power to the Commission. Should a recipient of a summons or subpoena refuse to comply, both statutes afford the same enforcement procedures. In neither case is the administrative subpoena self-executing: obedience can be obtained only by court order. In addition, both statutes, which are in pari materia, make it a criminal offense to ‘neglect’ to appear or to produce subpoenaed documents.” 63 Mich. L. Rev., at 91 (footnotes omitted).

       In reaching this conclusion, we reject petitioner’s “fall back” argument that even if compliance with a summons enforcement order by the subject of the IRS investigation moots an appeal, compliance by a disinterested third party — here, the Clerk of the Los Angeles Superior Court — does not. Brief for Petitioner 25-34; Reply Brief for Petitioner 16-18. We agree with the Government that a “difference in the method of compliance does not create a distinction for the purpose of the constitutional case or controversy requirement.” Brief for United States 30. This case presents a justiciable controversy not because a third party complied with the summons enforcement order, but because petitioner has a stake in the outcome of the proceeding and a federal court can effectuate relief should petitioner prevail on the merits.
      There is a distinction in the law between the enforcement of discovery orders directed at parties and the enforcement of discovery orders directed at disinterested third parties, but that distinction derives from concerns regarding finality, not mootness. As a general rule, a district court’s order enforcing a discovery request is riot a “final order” subject to appellate review. A party that seeks to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in contempt, and then appeal the contempt order. See United States v. Ryan, 402 U. S. 530 (1971). However, under the so-called Perlman doctrine, see Perlman v. United States, 247 U. S. 7 (1918), a discovery order directed at a disinterested third party is treated as an immediately appeal-able final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance. Ibid. See generally 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3914.23, pp. 156-167 (2d ed. 1992). This distinction has no bearing on this case because a district court order enforcing an IRS summons is an appealable final order. See Reisman v. Caplin, 375 U. S. 440 (1964). There is no “third-party exception” because there is no general rule barring immediate appeal of IRS summons enforcement orders.


author: Per Curiam.

text:
    HADLEY v. UNITED STATES
    No. 91-6646.
    Argued November 4, 1992
    Decided November 16, 1992

      John Trébon, by appointment of the Court, 503 U. S. 958, argued the cause and filed briefs for petitioner.

      Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Jeffrey P. Minear, and Thomas E. Booth.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.


author: Justice O’Connor Justice Blackmun,

text:
    PARKE, WARDEN v. RALEY
    No. 91-719.
    Argued October 5, 1992
    Decided December 1, 1992

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 37.

      Ian G. Sonego, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the briefs were Chris Gorman, Attorney General, and David A. Sexton, Assistant Attorney General.

      John F. Manning argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Sean Connelly.

      J. Gregory Clare, by appointment of the Court, 503 U. S. 957, argued the cause for respondent. With him on the brief was Mark R. Brown.

         Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

Kentucky’s “Persistent felony offender sentencing” statute, Ky. Rev. Stat. Ann. §532.080 (Michie 1990), provides mandatory minimum sentences for repeat felons. Under Kentucky law, a defendant charged as a persistent felony offender may challenge prior convictions that form the basis of the charge on the ground that they are invalid. Respondent, who was indicted under the statute, claimed that two convictions offered against him were invalid under Boykin v. Alabama, 395 U. S. 238 (1969). The trial court, after a hearing, rejected this claim, and respondent was convicted ánd sentenced as a persistent felony offender. After exhausting his state remedies, respondent petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. The District Court denied relief, but the Court of Appeals for the Sixth Circuit ordered that the writ conditionally issue, concluding that the trial court proceedings were constitutionally infirm. As it comes to this Court, the question presented is whether Kentucky’s procedure for determining a prior conviction’s validity under Boykin violates the Due Process Clause of the Fourteenth Amendment because It does not require the government to carry the entire burden of proof by clear and convincing evidence when a transcript of the prior plea proceeding is unavailable.

In May 1986, the Commonwealth charged respondent Ricky Harold Raley with robbery and with being a persistent felony offender in the first degree. The latter charge was based on two burglaries to which respondent had pleaded guilty in November 1979 and October 1981. Respondent never appealed his convictions for those crimes. He nevertheless moved to suppress them in the persistent felony offender proceeding, arguing that they were invalid under Boykin because the records did not contain transcripts of the plea proceedings and hence did not affirmatively show that respondent’s guilty pleas were knowing and voluntary.

The trial court held a hearing according to procedures set forth in Commonwealth v. Gadd, 665 S. W. 2d 915 (Ky. 1984), and Dunn v. Commonwealth, 703 S. W. 2d 874 (Ky. 1985), cert. denied, 479 U. S. 832 (1986). In Gadd, the Supreme Court of Kentucky observed that the persistent felony offender statute requires that the prosecution prove only the fact of a previous conviction beyond a reasonable doubt; the Commonwealth need not also show that the conviction was validly obtained. 665 S. W. 2d, at 917. But, citing Burgett v. Texas, 389 U. S. 109 (1967), the court also held that defendants must be able to attack a prior conviction’s invalidity. 665 S. W. 2d, at 917. Dunn v. Commonwealth clarified the procedures to be followed. When a defendant challenges a previous conviction through a suppression motion, the Commonwealth must prove the existence of the judgment on which it intends to rely. Once this is done, a presumption of regularity attaches, and the burden shifts to the defendant to produce evidence that his rights were infringed or some procedural irregularity occurred in the earlier proceeding. If the defendant refutes the presumption of regularity, the burden shifts back to the government affirmatively to show that the underlying judgment was entered in a manner that did, in fact, protect the defendant’s rights. 703 S. W. 2d, at 876.

After the prosecution filed certified copies of the prior judgments of conviction for burglary, both sides presented evidence about the earlier plea proceedings. Respondent testified that he had an 11th grade education, that he read adequately, that he was not intoxicated or otherwise mentally impaired when he entered the challenged pleas, and that he was represented by counsel on both occasions. He remembered the trial judge in each case asking him whether his plea was voluntary, but he said he could not remember whether he was specifically told about the rights he waived by pleading guilty. The government’s evidence showed that in the 1979 proceeding, respondent signed (though he later claimed not to have read) a “Plea of Guilty” form, which stated that he understood the charges against him, the maximum punishment he faced, his constitutional rights, and that a guilty plea waived those rights. The attorney who represented respondent in the first case verified his own signature on another part of the form indicating that he had fully explained respondent’s rights to him. As to the 1981 plea, respondent acknowledged signing a form that specified the charges to which he agreed to plead guilty. He also admitted that the judge had at least advised him of his right to a jury trial.

Based on this evidence, the trial court denied respondent’s suppression motion. Respondent then entered a conditional guilty plea on the robbery and the persistent felony offender counts, reserving the right to appeal the suppression determination. The trial court sentenced him to 5 years for robbery, enhanced to 10 because of the persistent felony offender conviction.

The Kentucky Court of Appeals affirmed. It found the totality of circumstances surrounding the 1979 plea sufficient to support a finding that the plea was knowing and voluntary. It also upheld use of the 1981 conviction. The court explained that respondent’s knowledge of his rights in November 1979 permitted an inference that he remained aware of them 23 months later. Respondent’s testimony, moreover, indicated that his sophistication regarding his legal rights had increased substantially after his first conviction. The Supreme Court of Kentucky denied discretionary review.

Respondent then filed a federal habeas petition, arguing that the Kentucky courts had erred in requiring him to adduce evidence, rather than requiring the Commonwealth affirmatively to prove the prior convictions’ validity. The District Court denied the petition for essentially the same reasons given by the Kentucky Court of Appeals. Raley v. Parke, Civ. Action No. C89-0756-L(A) (WD Ky., Mar. 15, 1990). The Court of Appeals for the Sixth Circuit, however, agreed with respondent, relying on its recent decision in Dunn v. Simmons, 877 F. 2d 1275 (1989), cert. denied, 494 U. S. 1061 (1990). 945 F. 2d 137 (1991). Simmons held that when no transcript of the prior guilty plea proceeding exists, the prosecution has the entire burden of establishing the plea’s validity, and no presumption of regularity attaches to the final judgment. 877 F. 2d, at 1277. It also held that when the prosecution seeks to demonstrate the regularity of the prior proceeding with extrarecord evidence, that evidence must be “clear and convincing.” Ibid. Although Simmons was decided after respondent’s persistent felony offender conviction became final, the Commonwealth did not argue that Teague v. Lane, 489 U. S. 288 (1989), barred its application to this case. Cf. Collins v. Youngblood, 497 U. S. 37, 40-41 (1990) (Teague not jurisdictional).

The Court of Appeals affirmed the District Court’s determination with respect to the 1979 plea but reversed with respect to the 1981 plea. It declined to infer that respondent remembered his rights from 1979, reasoning that such an inference would give rise to line-drawing problems and would discriminate improperly between accused recidivists and first offenders on the basis of prior court experience. The Court of Appeals observed that because the trial court hearing took place before Simmons was decided, the Commonwealth had not yet had an opportunity to try to meet the higher standard of proof that decision imposed. Thus, rather than issue the writ of habeas corpus outright, the Court of Appeals directed the District Court to grant the writ if Kentucky did not hold a new hearing on the validity of the 1981 conviction in compliance with Simmons within 90 days. We granted certiorari. 503 U. S. 905 (1992).

K

>

Statutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times. See, e..g., I The Acts and Resolves, Public and Private, of the Province of Massachusetts Bay 52 (Boston 1869) (1692 statute providing progressive punishments for robbery and burglary); 3 Laws of Virginia 276-278 (W. Henning ed. 1823) (1705 recidivism statute dealing with hog stealing); see also Graham v. West Virginia, 224 U. S. 616, 623 (1912). Such laws currently are in effect in all 50 States, see Department of Justice, Statutes Requiring the Use of Criminal History Record Information 17-41 (June 1991) (NJC-129846), and several have been enacted by the Federal Government, as well, see, e. g., 18 U. S. C. § 924(e) (Armed Career Criminal Act); 21 U. S. C. §§ 842(c)(2)(b), 843(c), 844(a) (provisions of the Controlled Substances Act); see also United States Sentencing Commission, Guidelines Manual §4A1.1 (Nov. 1992) (prior criminal conduct enhances criminal history for purpose of determining sentencing range).

States have a valid interest in deterring and segregating habitual criminals. See Rummel v. Estelle, 445 U. S. 263, 284 (1980). We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only. See Oyler v. Boles, 368 U. S. 448, 452 (1962); Graham, supra, at 623-624; McDonald v. Massachusetts, 180 U. S. 311, 313 (1901). And we have repeatedly upheld recidivism statutes “against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.” Spencer v. Texas, 385 U. S. 554, 560 (1967) (citing Oyler, supra; Gryger v. Burke, 334 U. S. 728 (1948); Graham, supra; McDonald, supra; Moore v. Missouri, 159 U. S. 673 (1895)). But see Solem v. Helm, 463 U. S. 277 (1983) (life sentence without parole imposed under recidivism statute violated Eighth Amendment when current conviction was for passing a bad check and prior offenses were similarly minor).

The States’ freedom to define the types of convictions that may be used for sentence enhancement is not unlimited. In Burgett v. Texas, 389 U. S. 109 (1967), we held that uncoun-seled convictions cannot be used “against a person either to support guilt or enhance punishment for another offense.” Id., at 115. This Court has nevertheless also expressed a willingness to uphold, under the Due Process Clause, a variety of state procedures for implementing otherwise valid recidivism statutes. See Spencer, supra (due process allows government to introduce proof of past convictions before jury has rendered guilt determination for current offense); Oyler, supra (due process does not require advance notice that trial for substantive offense will be followed by habitual-criminal accusation). As Justice Harlan observed 25 years ago in Spencer, the Court is not “a rule-making organ for the promulgation of state rules of criminal procedure.” 385 U. S., at 564. “Tolerance for a spectrum of state procedures dealing with [recidivism] is especially appropriate” given the high rate of recidivism and the diversity of approaches that States have developed for addressing it. Id., at 566. We think this reasoning remains persuasive today; studies suggest that as many as two-thirds of those arrested have prior criminal records, often from other jurisdictions. See Department of Justice, supra, at 1; see also Spencer, supra, at 566, n. 9. The narrow question we face is whether due process permits Kentucky to employ its particular burden-of-proof scheme when allowing recidivism defendants to attack previous convictions as invalid under Boykin. In our view, Kentucky’s burden-shifting rule easily passes constitutional muster.

B

As an initial matter, we decline to reach the broad argument advanced by petitioner and the Solicitor General that Kentucky’s procedure is a fortiori constitutional because, with narrow exceptions not applicable here, due process does not require state courts to permit challenges to guilty pleas used for enhancement purposes at all. Petitioner did not make this argument below or in his petition for certiorari. We ordinarily do not reach issues not raised in the petition for certiorari, see Yee v. Escondido, 503 U. S. 519, 535 (1992), and it is unnecessary for us to determine whether States must allow recidivism defendants to challenge prior guilty pleas because Kentucky does allow such challenges. We turn, then, to the question before us.

It is beyond dispute that a guilty plea must be both knowing and voluntary. See, e. g., Boykin, 395 U. S., at 242; Mc Carthy v. United States, 394 U. S. 459, 466 (1969). “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U. S. 25, 31 (1970). That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the privilege against self-incrimination. Boykin, 395 U. S., at 243.

In Boykin the Court found reversible error when a trial judge accepted a defendant’s guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary. Id., at 242. The Sixth Circuit thought rejection of Kentucky’s burden-shifting scheme compelled by Boykin’s statement that the waiver of rights resulting from a guilty plea cannot be “presume[d] . . . from a silent record.” Id., at 243. Kentucky favors the prosecution with only an initial presumption upon proof of the existence of a prior judgment; but because a defendant may be unable to offer rebuttal evidence, the Sixth Circuit reasoned that Kentucky’s procedure improperly permits the Commonwealth to carry its burden of persuasion upon a “bare record of a conviction.” Simmons, 877 F. 2d, at 1278.

We see no tension between the Kentucky scheme and Boy-kin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. Johnson v. Zerbst, 304 U. S. 458, 464, 468 (1938). Although we are perhaps most familiar with this principle in habeas corpus actions, see, e. g., Barefoot v. Estelle, 463 U. S. 880, 887 (1983); Johnson, supra, it has long been applied equally to other forms of collateral attack, see, e. g., Voorhees v. Jackson, 10 Pet. 449, 472 (1836) (observing, in a collateral challenge to a court-ordered sale of property in an ejectment action, that “[tjhere is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears”). Respondent, by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgments. See Black’s Law Dictionary 261 (6th ed. 1990); see also Lewis v. United States, 445 U. S. 55, 58, 65 (1980) (challenge to un-counseled prior conviction used as predicate for subsequent conviction characterized as “collateral”).

There is no good reason to suspend the presumption of regularity here. This is not a case in which an extant transcript is suspiciously “silent” on the question whether the defendant waived constitutional rights. Evidently, no transcripts or other records of the earlier plea colloquies exist at all. Transcripts of guilty plea proceedings are normally made in Kentucky only if a direct appeal is taken or upon the trial judge’s specific direction, Tr. of Oral Arg. 13-14, and the stenographer’s notes and any tapes made of the proceedings normally are not preserved more than five years, id., at 16-17. The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old. But Boykin colloquies have been required for nearly a quarter century. On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.

Burgett v. Texas, 389 U. S. 109 (1967), does not necessitate a different result. There the Court held that a prior conviction could not be used for sentence enhancement because the record of the earlier proceeding did not show that the defendant had waived his right to counsel. Id., at 114-115. Respondent suggests that because Burgett involved a state recidivism proceeding, it stands for the proposition that every previous conviction used to enhance punishment is “presumptively void” if waiver of a claimed constitutional right does not appear from the face of the record. Brief for Respondent 14-15. We do not read the decision so broadly. At the time the prior conviction at issue in Burgett was entered, state criminal defendants’ federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant had not waived a right he did not possess. As we have already explained, the same cannot be said about a record that, by virtue of its unavailability on collateral review, fails to show compliance with the well-established Boykin requirements.

Respondent argues that imposing even a burden of production on him is fundamentally unfair because “a constitutionally protected right is in question.” Brief for Respondent 15. By this he apparently refers to the Fifth and Sixth Amendment rights that a defendant waives by pleading guilty. Our precedents make clear, however, that even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant. See, e. g., Johnson, supra, at 468-469.

Respondent also contends that Kentucky’s rule is unfair because it may be difficult to prove the invalidity of a conviction entered many years ago, perhaps in another jurisdiction, when records are unavailable and witnesses inaccessible. We have little doubt that serious practical difficulties will confront any party assigned an evidentiary burden in such circumstances. See Loper v. Beto, 405 U. S. 473, 500-501 (1972) (Rehnquist, J., dissenting). “The Due Process Clause does not, however, require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused.” Medina v. California, 505 U. S. 437, 451 (1992). When a defendant challenges the validity of a previous guilty plea, the government will not invariably, or perhaps even usually, have superior access to evidence. Indeed, when the plea was entered in another jurisdiction, the defendant may be the only witness who was actually present at the earlier proceeding. If raising a Boy-kin claim and pointing to a missing record suffices to place the entire burden of proof on the government, the prosecution will not infrequently be forced to expend considerable effort and expense attempting to reconstruct records from farflung States where procedures are unfamiliar and memories unreliable. To the extent that the government fails to carry its burden due to the staleness or unavailability of evidence, of course, its legitimate interest in differentially punishing repeat offenders is compromised. In light of the relative positions of the defendant and the prosecution in recidivism proceedings, we cannot say that it is fundamentally unfair to place at least a burden of production on the defendant.

Respondent cites no historical tradition or contemporary practice indicating that Kentucky’s scheme violates due process. See Medina, supra, at 446, 447. For much of our history, it appears that state courts altogether prohibited defendants in recidivism proceedings from challenging prior convictions as erroneous, as opposed to void for lack of jurisdiction. See, e. g., Kelly v. People, 115 Ill. 583, 588, 4 N. E. 644, 645-646 (1886); accord, State v. Webb, 36 N. D. 235, 243, 162 N. W. 358, 361 (1917). In recent years state courts have permitted various challenges to prior convictions and have allocated proof burdens differently. Some, like the Sixth Circuit, evidently place the full burden on the prosecution. See, e. g., State v. Elling, 11 Ohio Misc. 2d 13, 15, 463 N. E. 2d 668, 670 (Com. Pl. 1983) (challenge to allegedly uncounseled conviction); State v. Hennings, 100 Wash. 2d 379, 382, 670 P. 2d 256, 257 (1983) (challenge to guilty plea). Others assign the entire burden to the defendant once the government has established the fact of conviction. See, e. g., People v. Harris, 61 N. Y. 2d 9, 15, 459 N. E. 2d 170, 172 (1983) (guilty plea); see also D. C. Code Ann. §23-111(c)(2) (1989); N. C. Gen. Stat. § 15A-980(c) (1988). Several, like Kentucky, take a middle position that requires the defendant to produce evidence of invalidity once the fact of conviction is proved but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. See, e. g., Watkins v. People, 655 P. 2d 834, 837 (Colo. 1982) (guilty plea); State v. O’Neil, 91 N. M. 727, 729, 580 P. 2d 495, 497 (Ct. App. 1978) (uncounseled conviction); State v. Triptow, 770 P. 2d 146, 149 (Utah 1989) (same). This range of contemporary state practice certainly does not suggest that allocating some burden to the defendant is fundamentally unfair.

Interpretations of analogous federal laws by the Courts of Appeals point even more strongly away from respondent’s position. Under the Armed Career Criminal Act, 18 U. S. C. § 924(e), Courts of Appeals have placed on the defendant the entire burden of proving the invalidity of a prior conviction based on a guilty plea. See, e. g., United States v. Gallman, 907 F. 2d 639, 643-645 (CA7 1990), cert. denied, 499 U. S. 908 (1991); accord, United States v. Paleo, 967 F. 2d 7, 13 (CA1 1992); United States v. Day, 949 F. 2d 973, 982-983 (CA8 1991); United States v. Ruo, 943 F. 2d 1274, 1276 (CA11 1991). Courts of Appeals have also allocated the full burden of proof to . defendants claiming that an invalid guilty plea renders a prior conviction unavailable for purposes of calculating criminal history under the Sentencing Guidelines. See, e. g., United States v. Boyer, 931 F. 2d 1201, 1204-1205 (CA7), cert. denied, 502 U. S. 873 (1991). And the text of the Comprehensive Drug Abuse Prevention and Control Act of 1970 itself clearly provides that a defendant raising a constitutional challenge to a prior conviction used for sentence enhancement bears the burden of proof. See 21 U. S. C. § 851(c)(2).

In sum, neither our precedents nor historical or contemporary practice compel the conclusion that Kentucky’s burden-shifting rule violates due process, and we cannot say that the rule is fundamentally unfair in its operation. Accordingly, we hold that the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin.

C

Petitioner also challenges the Sixth Circuit’s holding that the prosecution’s extrarecord evidence must be clear and convincing. In petitioner’s view, the preponderance of the evidence standard applicable to constitutional claims raised on federal habeas, see, e. g., Johnson, 304 U. S., at 468-469, is appropriate. The Sixth Circuit based its conclusion to the contrary on Boykin, observing that an “extraordinary standard of persuasion” is justified “in view of misgivings inherent in ‘collateral proceedings that seek to probe murky memories.’” Simmons, 877 F. 2d, at 1277 (quoting Boykin, 395 U. S., at 244); see also Roddy v. Black, 516 F. 2d 1380, 1384 (CA6), cert. denied, 423 U. S. 917 (1975). Respondent, in support of the Sixth Circuit’s heightened standard, reiterates his arguments regarding the importance of the constitutional rights at stake and the government’s position relative to the defendant’s.

Our analysis of this question parallels our discussion of the proper allocation of proof burdens. Boykin did not address the question of measure of proof, and even if it had, it would not necessarily follow that the same standard should apply in recidivism proceedings. We find respondent’s arguments no more persuasive here than they were in the allocation context. Given the difficulties of proof for both sides, it is not obvious to us that, once a State assigns the government the burden of persuasion, requiring anything less than clear and convincing extrinsic evidence is fundamentally unfair. Again, we are pointed to no historical tradition setting the standard of proof at this particular level. And contemporary practice is far from uniform; state courts that impose the ultimate burden on the government appear to demand proof ranging from preponderance, see Triptow, supra, at 149; Watkins, supra, at 837, to beyond a reasonable doubt, see Hennings, supra, at 382, 670 P. 2d, at 257. We are therefore unprepared to say that when the government carries the ultimate burden of persuasion and no transcript of the prior proceeding exists, the Due Process Clause requires the Commonwealth to prove the validity of the conviction by clear and convincing extrarecord evidence.

III

Respondent no longer challenges the validity of his 1979 plea. Thus, the final issue before us is whether the Kentucky courts properly concluded that respondent’s 1981 guilty plea was valid. For the proper standard of review, petitioner cites Marshall v. Lonberger, 459 U. S. 422 (1983), a case quite similar to this one. In Lonberger, the state defendant challenged a prior conviction used to obtain a death sentence on the ground that the conviction was based on a guilty plea invalid under Boykin. We held that although “the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law,” 459 U. S., at 431, questions of historical fact, including inferences properly drawn from such facts, are in this context entitled to the presumption of correctness accorded state court factual findings under 28 U. S. C. § 2254(d), Lonberger, supra, at 431-432; cf. Miller v. Fenton, 474 U. S. 104, 113, 115, 117 (1985) (holding that the question whether a confession is voluntary is subject to independent federal determination, expressly distinguishing Lonberger). We said that the federal habeas courts in Lonberger were bound to respect the contents of the record of the prior plea proceeding, the state trial court’s findings that the defendant was “an intelligent individual, well experienced in the criminal processes and well represented at all stages of the proceedings by competent and capable counsel,” the similar conclusions of the state appellate court, and “inferences fairly deducible from these facts.” Lonberger, supra, at 435 (internal quotation marks omitted); see also Sumner v. Mata, 449 U. S. 539, 545-547 (1981) (deference owed to findings of both state trial and appellate courts).

We note that petitioner’s theory of the case, which we have declined to consider, suggests a different standard. If Kentucky’s procedure is indeed not constitutionally mandated, the Kentucky courts’ determination that respondent understood his rights when he entered his plea would seem to be reviewable at most for sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (1979). There is no need to choose between the two standards of review in this case, however, because we are convinced that the Kentucky courts’ factual determinations are “fairly supported by the record” within the meaning of 28 U. S. C. § 2254(d)(8).

The Kentucky Court of Appeals, reviewing the trial court’s decision not to suppress the 1981 conviction, observed that respondent had an 11th grade education, could read adequately, was represented by counsel in the 1981 proceedings, and was in no way mentally impaired when he entered his plea. The court noted that respondent had signed a form specifying the charges to which he agreed to plead guilty. And it found that he had been fully advised of his rights in 1979. Respondent does not now dispute those determinations. The Kentucky Court of Appeals inferred that respondent remained aware in 1981 of the rights of which he was advised in 1979. Supporting that inference was the court’s determination, based on respondent’s testimony at the trial court hearing, that his “knowledge and sophistication regarding his rights under our judicial system increased substantially after his first conviction.”1 App. to Pet. for Cert. A32. Respondent knew, for example, the difference between first- and second-degree persistent felony offender charges, and he knew the sentencing and' parole requirements for both offenses. “[H]e indicated that the evidence against him and his lack of a strong defense had persuaded him to accept the Commonwealth’s offered plea bargain in return for a recommendation that he be given a minimum sentence. In fact, he voluntarily and knowingly chose not to risk the uncertainties of a jury trial.” Id., at 32-33.

We have previously treated evidence of a defendant’s prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights, see, e. g., Lonberger, supra, at 437; Gryger v. Burke, 334 U. S., at 730, and we think the Kentucky Court of Appeals fairly inferred that respondent understood the full consequences of his 1981 plea. That, combined with respondent’s admission that he understood the charges against him and his self-serving testimony that he simply could not remember whether the trial judge advised him of other rights, satisfied every court that has considered the issue that the government carried its burden of persuasion under the Kentucky framework. We cannot say that this was error.

The judgment of the Court of Appeals for the Sixth Circuit is accordingly

Reversed.

Justice Blackmun,

concurring in the judgment.

I agree that Kentucky’s burden-shifting procedures established in Dunn v. Commonwealth, 703 S. W. 2d 874, 876 (Ky. 1985), cert. denied, 479 U. S. 832, (1986), are constitutional under the Due Process Clause and that the Court of Appeals erred in concluding that the Commonwealth had the burden of establishing by clear and convincing evidence that the prior guilty pleas complied with Boykin v. Alabama, 395 U. S. 238 (1969). I write separately, however, to emphasize that I agree with this conclusion only because Kentucky’s persistent-felony-offender statute, Ky. Rev. Stat. Ann. § 532.080 (Michie 1990), is a sentencing provision rather than a statute creating a separate criminal offense.

The persistent-felony-offender provision is located not in the substantive criminal offense chapters of the Kentucky Revised Statutes but as part of chapter 532, where the offense classifications and the respective penalties are located. Section 532.080 is entitled "Persistent felony offender sentencing,” and it is specifically concerned with enhancing the penalty that would otherwise follow from a conviction on the underlying criminal offense. In respondent’s case, for example, his persistent-felony-offender status enhanced the punishment normally associated with a second-degree robbery conviction — at least 5 but not more than 10 years imprisonment — to a minimum of 10 and a maximum of 20 years. §532.080(6)(b).

The Supreme Court of Kentucky has described the persistent-felony-offender statute:

“There is no additional punishment imposed by a persistent felony offender conviction, merely a more severe punishment. KRS 532.080 does not create or define a criminal offense. It recognizes a status and, in a proceeding separate and apart from the initial trial, fixes a penalty which is to be imposed rather than the one fixed by the jury on the initial trial.” Hardin v. Commonwealth, 573 S. W. 2d 657, 661 (Ky. 1978).

See also Malicoat v. Commonwealth, 637 S. W. 2d 640, 641 (Ky. 1982). Under Kentucky law, the Commonwealth has the burden of proving beyond a reasonable doubt each “element” of the offense of being a first-degree persistent-felony offender. Hon v. Commonwealth, 670 S. W. 2d 851, 853 (Ky. 1984). However,

“[i]t is the fact of conviction which the Commonwealth seeks to prove in introducing the judgment against a defendant charged as a persistent felon. KRS 532.080 does not specify that the Commonwealth must affirmatively prove both the fact of conviction and that the previous conviction was not obtained by constitutionally impermissible means.” Commonwealth v. Gadd, 665 S. W. 2d 915, 917 (Ky. 1984).

I believe that had Kentucky chosen to make being a persistent-felony offender a separate crime, as respondent mistakenly believes that it has, Brief for Respondent 12-13, the Commonwealth would have had the burden affirmatively to prove that the underlying felony convictions were obtained by constitutional means. Under those circumstances, Boykin would not permit the Commonwealth to rely on a silent record. But, because the persistent-felony-offender statute is properly understood to be a sentencing provision, I see no reason why the Commonwealth may not place the burden on the defendant to rebut the presumption of regularity that attaches to the prior convictions. For this reason, I agree that the Court of Appeals has demanded more of the Commonwealth of Kentucky than is constitutionally required.

       “A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies.” Ky. Rev. Stat. Ann. § 532.080(3) (Michie 1990). The applicable penalty depends upon the nature of the offense for which the defendant presently stands convicted. A defendant convicted both of second-degree robbery (the crime to which respondent ultimately pleaded guilty) and of being a first-degree persistent felony offender faces a mandatory sentence of 10 to 20 years. §§ 515.030, 532.080(6)(b). A first-degree persistent felony offender is also ineligible for probation or parole until he has served at least 10 years. §532.080(7).


author: Justice O’Connor Justice Thomas, Justice Scalia,

text:
    RICHMOND v. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, et al.
    No. 91-7094.
    Argued October 13, 1992
    Decided December 1, 1992

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Kennedy, Souter, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 52. Scalia, J., filed a dissenting opinion, post, p. 53.

      Timothy K. Ford argued the cause for petitioner. With him on the briefs were Judith H. Ramseyer and Carla Ryan.

      Paul J. McMurdie argued the cause for respondents. With him on the brief were Grant Woods, Attorney General of Arizona, and Jack Roberts, Assistant Attorney General.
   Justice O’Connor

delivered the opinion of the Court.

The question in this case is whether the Supreme Court of Arizona has cured petitioner’s death sentence of vagueness error.

I

On August 25, 1973, Bernard Crummett had the misfortune to meet Rebecca Corella in a Tucson, Arizona, bar. Crummett left the bar with Corella and, in the parking lot, met petitioner, who had been waiting for Corella with his girlfriend, Faith Erwin. Corella agreed to perform an act of prostitution with Crummett, and petitioner drove the group to Corella’s hotel. There, Corella communicated to petitioner that Crummett was “loaded,” and petitioner in turn whispered to Erwin that he intended to rob Crummett.

After Corella and Crummett concluded their encounter at the hotel, the group again went for a drive, this time to a deserted area outside Tucson, where, Crummett believed, Corella would perform another act of prostitution. Petitioner stopped the car and got out. He first struck Crum-mett to the ground and next threw several large rocks at Crummett’s head. Crummétt’s watch and wallet were taken by Corella, petitioner, or both, and these two then drove away with Erwin. Either petitioner or Corella was driving, and whoever it was drove the car over Crummett twice. Crummett suffered injuries to his head and trunk, and died.

The State of Arizona charged petitioner with robbery and first degree murder. Erwin testified at the jury trial that petitioner drove the car over Crummett, but admitted that she had been intoxicated by heroin at the time. A defense witness stated that Erwin previously had identified Corella as the driver. Neither Corella nor petitioner took the stand, although the prosecution did introduce a postarrest statement by petitioner in which he acknowledged robbing Crum-mett but claimed that Corella was the driver. There was medical testimony that a car had crushed Crummett’s head, killing him, and that the injuries to his trunk, also vehicular, took place at least 30 seconds later.

Petitioner was convicted of both robbery and first degree murder. The jury was instructed as to the elements of felony murder as well as premeditated murder; the murder conviction was returned by a general verdict. Judge Roylston held the penalty hearing required by Ariz. Rev. Stat. Ann. § 13-703 (1989), then codified as § 13-454, and sentenced petitioner to death for the murder and 15-20 years’ imprisonment for the robbery. The judge found two statutory aggravating factors: that petitioner had a prior felony conviction involving the use or threat of violence on another person, § 13 — 703(F)(2) (an armed kidnaping), and that petitioner “committed the offense in an especially heinous, cruel or depraved manner,” § 13-703(F)(6) ((F)(6) factor). Specifically, Judge Roylston’s written order stated that “the Defendant did commit the offense in an especially heinous and cruel manner.” App. 44. There was no explicit finding about the identity of the driver of the vehicle.

Petitioner unsuccessfully sought postconviction relief in the trial court, attaching two affidavits by persons who claimed to have been told by Corella that she, not petitioner, drove the car over Crummett. The Supreme Court of Arizona affirmed the sentence, conviction, and denial of postcon-viction relief. State v. Richmond, 114 Ariz. 186, 560 P. 2d 41 (1976). Although the opinion is ambiguous on this point, it appears that the court did not reach petitioner’s vagueness challenge to the “especially heinous, cruel or depraved” factor because his death sentence was supported by another valid aggravating factor and no statutory mitigating factors applied. Id., at 196-197, 560 P. 2d, at 51-52. We denied certiorari. 433 U. S. 915 (1977). Federal habeas corpus proceedings ensued, as a result of which petitioner’s conviction was found valid but his sentence invalid because the sentencing judge had been constrained to consider a limited set of mitigating factors. Richmond v. Cardwell, 450 F. Supp. 519 (Ariz. 1978). Soon thereafter, the Supreme Court of Arizona held the Arizona death penalty statute unconstitutional insofar as it limited defendants to statutory mitigating factors, State v. Watson, 120 Ariz. 441, 444-445, 586 P. 2d 1253, 1256-1257 (1978), and vacated every pending Arizona death sentence, see Brief for Respondents 5.

Petitioner’s resentencing took place in March 1980. At the hearing, one defense witness testified that Erwin had identified Corella as the driver, while another stated that Corella had admitted the same. The defense also produced evidence of petitioner’s rehabilitation in prison and of the effect his execution would have on his family. Judge Royls-ton again sentenced petitioner to death, this time finding three statutory aggravating circumstances: under Ariz. Rev. Stat. Ann. § 13-703(F)(2) (prior violent felony) and § 13— 703(F)(6) (“especially heinous, cruel or depraved” offense), as before, and also under § 13-703(F)(1) (prior felony meriting life imprisonment), for a murder charge of which petitioner had been convicted after the first sentencing even though the murder predated Crummett’s. Once again, the judge found that “the Defendant did commit the offense in this case in an especially heinous and cruel manner,” App. 74, but did not explicitly find that petitioner was the driver. The findings as to mitigation were, among others, that “Rebecca Cor-ella was involved in the offense but was never charged with any crime”; that “Faith [E]rwin was involved in the offense but was never charged with any crime”; that “the jury was instructed both on the matters relating to the felony murder rule, as well as matters relating to premeditated murder”; and that “the Defendant’s family ... will suffer considerable grief as a result of any death penalty that might be imposed.” Id., at 75. The judge was unable to make a definitive finding as to rehabilitation and concluded that “there are no mitigating circumstances sufficiently substantial to call for le-. niency.” Id., at 76.

A divided Supreme Court of Arizona affirmed, with each of the five justices joining one of three opinions. State v. Richmond, 136 Ariz. 312, 666 P. 2d 57 (1983) (Richmond II). Chief Justice Holohan wrote the principal opinion for himself and for Justice Hays, rejecting various challenges to petitioner’s sentence, including a challenge to the (F)(6) factor. He reasoned that petitioner’s offense was “heinous” and “depraved” (but not “cruel”) and that this factor was not unconstitutionally vague:

“In [State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert. denied, 461 U. S. 971 (1983)], we discussed factors which lead to a finding of heinousness or depravity. One factor is the infliction of gratuitous violence on the victim; another related factor is the needless mutilation of the victim. Here the victim was already unconscious and bleeding when he was run over not once, but twice, each time from a different direction. The evidence indicates that the first run by the vehicle was over the victim’s head crushing his skull and killing him. The second run of the vehicle was over the body of the victim.... Again the fact that the victim in the instant case was run over twice and his skull was crushed, we find to be a ghastly mutilation of the victim.” Id., at 319, 666 P. 2d, at 64.

The principal opinion then conducted an independent review of the sentence, concluding that “the mitigation offered by [petitioner] is not sufficiently substantial to outweigh the [three] aggravating circumstances.” Id., at 321, 666 P. 2d, at 66.

Justice Cameron, joined by Vice Chief Justice Gordon, wrote a special concurrence. “I concur in the [principal opinion] except its finding that this crime was heinous and depraved, and I concur in the result.” Id., at 324, 666 P. 2d, at 69. The concurring justices contended that petitioner committed neither “gratuitous violence” nor “needless mutilation” within the meaning of State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert. denied, 461 U. S. 971 (1983). Gratuitous violence would have obtained only if petitioner “knew or should have known that the victim was dead after the first pass of the car” — if he “inflicted any violence on the victim which he must have known was ‘beyond the point necessary to kill.’ ” Richmond II, 136 Ariz., at 323, 666 P. 2d, at 68. Similarly, needless mutilation was interpreted to mean “distinct acts, apart from the killing, specifically performed to mutilate the victim’s body.” Ibid. But the concurrence agreed that a death sentence was appropriate for petitioner, even absent the (F)(6) factor.

Justice Feldman dissented. He argued that the murder was not “especially heinous, cruel or depraved” and that the mitigating evidence of petitioner’s rehabilitation precluded a death sentence. Id., at 324-325, 666 P. 2d, at 69-70.

We denied certiorari. 464 U. S. 986 (1983). Petitioner filed a habeas corpus action in the United States District Court for the District of Arizona, challenging his sentence and conviction. The District Court denied relief, Richmond v. Ricketts, 640 F. Supp. 767 (1986), and the Ninth Circuit affirmed, 921 F. 2d 933 (1990). As to the (F)(6) factor, the panel held that a valid narrowing construction of that factor had been imposed in Richmond II and, in the alternative, that petitioner’s sentence could stand without that factor despite our decision in Clemons v. Mississippi, 494 U. S. 738 (1990). “Elimination of the challenged factor would still leave enough support for [petitioner’s] sentence because the statute at issue here is not a ‘weighing’ statute.” 921 F. 2d, at 947. The opinion later was amended to omit that sentence, but the amended opinion still reasoned: “Under the statute at issue in Clemons, the invalidation of an aggravating circumstance necessarily renders any evidence of mitigation ‘weightier’ or more substantial in a relative sense; the same, however, cannot be said under the terms of the Arizona statute at issue here.” 948 F. 2d 1473, 1488-1489 (1992).

The Ninth Circuit denied rehearing en banc, with four judges dissenting. Id., at 1476. We granted certiorari, 503 U. S. 958 (1992), and now reverse.

f — i 1 — (

Petitioner challenges his death sentence imposed at resen-tencing in 1980. He argues that the “especially heinous, cruel or depraved” aggravating factor specified by Ariz. Rev. Stat. Ann. § 13 — 703(F)(6) (1989), upon which the sentencing judge relied, was unconstitutionally vague, and that the Supreme Court of Arizona failed to cure this invalidity in Richmond II.

The relevant Eighth Amendment law is well defined. First, a statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty. See, e. g., Maynard v. Cartwright, 486 U. S. 356, 361-364 (1988); Godfrey v. Georgia, 446 U. S. 420, 427-433 (1980). Second, in a “weighing” State, where the aggravating and mitigating factors are balanced against each other, it is constitutional error for the sentencer to give weight to an unconstitutionally vague aggravating factor, even if other, valid aggravating factors obtain. See, e. g., Stringer v. Black, 503. U. S. 222, 229-232 (1992); Clemons v. Mississippi, supra, at 748-752. Third, a state appellate court may rely upon an adequate narrowing construction of the factor in curing this error. See Lewis v. Jeffers, 497 U. S. 764 (1990); Walton v. Arizona, 497 U. S. 639 (1990). Finally, in federal habeas corpus proceedings, the state court’s application of the narrowing construction should be reviewed under the “rational factfinder” standard of Jackson v. Virginia, 443 U. S. 307 (1979). See Lewis v. Jeffers, supra, at 781.

Arizona’s “especially heinous, cruel or depraved” factor was at issue in Walton v. Arizona, supra. As we explained, “there is no serious argument that [this factor] is not facially vague.” 497 U. S., at 654. Respondents do not argue that the factor had been narrowed adequately prior to petitioner’s resentencing. Thus it would have been error for Judge Roylston to give weight to the (F)(6) factor, if he indeed balanced the aggravating and mitigating factors in resentencing petitioner, and respondents now agree that the judge did engage in this weighing process. See Brief for Respondents 44 (“Arizona Is a Weighing State”). The Arizona sentencing statute provides:

“In determining whether to impose a sentence of death ... the court shall take into account the aggravating and mitigating circumstances included in . . . this section and shall impose a sentence of death if the court finds one or more of the aggravating circumstances . . . and that there are no mitigating circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. § 13-703(E) (1989).

This provision governed petitioner’s resentencing and remains unamended in relevant part. ■ Read most naturally, it requires the sentencer to weigh aggravating and mitigating circumstances — to determine the relative “substan[ce]” of the two kinds of factors. And the provision has been construed thus by the Supreme Court of Arizona. See, e. g., State v. Brewer, 170 Ariz. 486, 504, 826 P. 2d 783, 801, cert. denied, post, p. 872; State v. Gretzler, 135 Ariz., at 54-55, 659 P. 2d, at 13-14; State v. Valencia, 132 Ariz. 248, 250, 645 P. 2d 239, 241 (1982); State v. Brookover, 124 Ariz. 38, 42, 601 P. 2d 1322, 1326 (1979). Nor do respondents contend that the (F)(6) factor had no effect on the sentencing judge’s calculus and therefore was harmless.

Rather, they point to State v. Gretzler, supra, which issued subsequent to the resentencing but prior to Richmond II, and which provided an adequate narrowing construction of the “especially heinous, cruel or depraved” factor. See Lewis v. Jeffers, supra, at 777-778 (holding that Gretzler definitions adequately narrowed (F)(6) factor); Walton v. Arizona, supra, at 652-655 (same). Respondents assert that the principal opinion in Richmond II properly applied the Gretzler construction of the (F)(6) factor, while the concurrence ignored the factor, and that both opinions reweighed. Petitioner argues that the principal opinion improperly applied Gretzler, and that the concurrence did not reweigh.

We agree with petitioner that the concurrence in Richmond II did not reweigh. Our prior cases do not specify the degree of clarity with which a state appellate court must reweigh in order to cure an otherwise invalid death sentence, see Clemons v. Mississippi, supra, at 750-752; cf. Sochor v. Florida, 504 U. S. 527, 540 (1992) (discussing clarity of state appellate court’s harmless-error analysis); Stringer v. Black, 503 U. S., at 229-232 (same), and we need not do so here. At a minimum, we must determine that the state court actually reweighed. “[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale,” id., at 232, nor can a court “cure” the error without deciding, itself, that the valid aggravating factors are weightier than the mitigating factors. “[0]nly constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.” Ibid. Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus, if the sentence is to stand.

The concurring justices in Richmond II did not purport to perform such a calculus, or even mention the evidence in mitigation. Respondents suggest that we presume reweighing, both because the justices of the Supreme Court of Arizona have an obligation to reweigh as part of their “independent review” of death sentences, and because Justices Cameron and Gordon concurred in the portion of the principal opinion that articulated this obligation. Although there is some force to this suggestion, any presumption of reweighing is overcome by the language of the concurrence itself. After arguing that petitioner’s offense did not satisfy the (F)(6) factor, the concurrence offered this brief explanation why a death sentence was justified nonetheless.

“The criminal record of this defendant, however, clearly places him above the norm of first degree murderers. He has been convicted of another first degree murder and a kidnapping, each arising in separate incidents. This history of serious violent crime justifies the imposition of the death penalty.” Richmond II, 136 Ariz., at 323-324, 666 R 2d, at 68-69.

The plain meaning of this passage is that petitioner’s aggravated background provided a conclusive justification for the death penalty. The passage plainly evinces the sort of automatic affirmance rule proscribed in a “weighing” State — “a rule authorizing or requiring affirmance of a death sentence so long as there remains at least one valid aggravating circumstance.” Clemons v. Mississippi, 494 U. S., at 751.

As to the two justices who joined the principal opinion in Richmond II, Chief Justice Holohan and Justice Hays, petitioner argues that these justices erred by relying upon the (F)(6) “especially heinous, cruel or depraved” factor. Specifically, petitioner contends that the justices refrained from determining that he drove the car over Crummett; that in any case the record before the Supreme Court of Arizona did not suffice to support such a determination; and that the (F)(6) factor would not apply even if he were the driver, unless he knew when he drove the car over Crummett the second time that Crummett was already dead. Respondents dispute each of these points, arguing that Chief Justice Holohan and Justice Hays did determine petitioner to be the driver; that the sentencing judge had made an implicit finding on this score; and that the (F)(6) factor was applicable to the driver, whether or not he knew Crummett to be dead. The parties do agree that a state appellate court can cure a death sentence of constitutional error even where only a minority of the court relies upon a particular aggravating factor, as in Richmond II, if such reliance is otherwise legitimate. See Brief for Respondents 8-33; Reply Brief for Petitioner 3. We assume without deciding that the parties are correct on this point. Instead, the dispute here is simply whether the justices who relied upon the (F)(6) factor in Richmond II ought to have done so.

Of course, the question to be decided by a federal court on petition for habeas corpus is not whether the state sentencer committed state-law error in relying upon an adequately narrowed aggravating factor. See Lewis v. Jeffers, 497 U. S., at 780. Rather, the federal, constitutional question is whether such reliance is “so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Ibid. Gretzler, the narrowing construction of Arizona’s (F)(6) factor, reads as follows:

“[T]he statutory concepts of heinous and depraved involve a killer’s vile state of mind at the time of the murder, as evidenced by the killer’s actions. Our cases have suggested specific factors which lead to a finding of heinousness or depravity.
“[One such factor] is the infliction of gratuitous violence on the victim. . . .
“[Another] is the needless mutilation of the victim.” 135 Ariz., at 51-52, 659 P. 2d, at 10-11.

A murderer who intentionally drives a car over his victim twice arguably commits “gratuitous violence” within the meaning of Gretzler, whether or not he knows that the victim is dead after the first pass. An Arizona sentencer would not commit constitutional error by relying on the (F)(6) factor in sentencing that murderer. Although it may be true that knowledge of the victim’s condition is required as a matter of Arizona law, indeed Richmond II itself may now stand for that state-law proposition, “federal habeas corpus relief does not lié for errors of state law.” Lewis v. Jeffers, supra, at 780. On the other hand, respondents do agree that, on the facts of this case, the Eighth Amendment would preclude the application of the (F)(6) factor to petitioner if he did not intentionally drive the car over Crummett. Tr. of Oral Arg. 38-39. Cf. Tison v. Arizona, 481 U. S. 137, 156-158 (1987) (conduct short of intentional killing may show culpable mental state that justifies death penalty).

But we need not decide whether the principal opinion in Richmond II remained within the constitutional boundaries of the (F)(6) factor. Respondents assume that at least a majority of the Supreme Court of Arizona needed to perform a proper reweighing and vote to affirm petitioner’s death sentence if that court was to cure the sentence of the initial vagueness error. See Brief for Respondents 27, 49, n. 16. Thus, even assuming that the two justices who joined the principal opinion properly reweighed, their votes did not suffice to validate the death sentence. One more proper vote was needed, but there was none. As we have already explained, the concurring justices who also voted to affirm petitioner’s sentence did not perform a curative reweighing, while the dissenter voted to reverse. Therefore petitioner’s sentence is invalid, whether or not the principal opinion properly relied upon the “especially heinous, cruel or depraved” factor.

Ill

Petitioner’s death sentence was tainted by Eighth Amendment error when the sentencing judge gave weight to an unconstitutionally vague aggravating factor. The Supreme Court of Arizona did not cure this error, because the two justices who concurred in affirming the sentence did not actually perform a new sentencing calculus. Thus the sentence, as it stands, violates the Eighth Amendment.

We reverse the judgment of the Court of Appeals and remand with instructions to return the case to the District Court to enter an order granting the petition for a writ of habeas corpus unless the State of Arizona within a reasonable period of time either corrects the constitutional error in petitioner’s death sentence or vacates the sentence and imposes a lesser sentence consistent with law.

It is so ordered.

Justice Thomas,

concurring.

The Court holds that the concurring Arizona Supreme Court justices violated the rule of Clemons v. Mississippi, 494 U. S. 738 (1990), by failing to reweigh aggravating and mitigating circumstances after concluding that only two of the three aggravating circumstances found by the trial court were present in this case. Respondents do not claim that this rule is a new one for purposes of Teague v. Lane, 489 U. S. 288 (1989), and that it is consequently unavailable to a habeas petitioner. The reason, presumably, is that a Teague defense is foreclosed by Stringer v. Black, 503 U. S. 222 (1992), which held that “there was no arguable basis” in February 1985 to support the view that an appellate court in a weighing State “was permitted to apply a rule of automatic affirmance to any death sentence supported by multiple aggravating factors, when one is invalid.” Id., at 231. Under Stringer, the concurring Arizona Supreme Court justices cannot be excused for their failure to reweigh; any reasonable jurist should have known that “automatic affirmance” in a weighing State violates the Eighth Amendment.

I joined the dissent in Stringer, and I continue to think that case was wrongly decided. In particular, I remain convinced that Stringer transformed Teague’s retroactivity principle from a rule that validates “reasonableness” into a rule that mandates “prescience.” 503 U. S., at 244 (Souter, J., dissenting). Had Stringer been decided differently, petitioner could not now complain that two Arizona Supreme Court justices violated the Constitution in 1983 by neglecting to reweigh. Nevertheless, because Stringer is good law, and because I agree that the concurring justices in this case did not reweigh, I join the Court’s opinion.

Justice Scalia,

dissenting.

The Court today holds that Justice Cameron’s special concurrence erred in that, after having found that this murder was not committed in an “especially heinous, cruel or depraved manner,” Ariz. Rev. Stat. Ann. § 13-703(F)(6) (1989), it failed thereupon to reweigh the remaining aggravating and mitigating circumstances before affirming petitioner’s death sentence. The Court does not reach petitioner’s claim that Chief Justice Holohan’s opinion erred in applying the Arizona limiting construction of this aggravating circumstance, see State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert. denied, 461 U. S. 971 (1983), and in thus finding this murder to have been “heinous.”

Under Arizona law, a murderer is eligible for the death penalty if the trial court finds at least one. statutory aggravating circumstance. Ariz. Rev. Stat. Ann. §13-703(E) (1989). Even accepting both of petitioner’s arguments with regard to the “especially heinous, cruel or depraved” factor, it is beyond dispute that two constitutionally valid aggravating circumstances were found— namely, that petitioner had “been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable” (specifically, first-degree murder), § 13-703(F)(1), and that petitioner had been “previously convicted of a felony in the United States involving the use or threat of violence on another person” (specifically, armed kid-naping), § 13-703(F)(2). App. 73-74. Thus, the death sentence unquestionably complied with the narrowing requirement imposed by the line of cases commencing with Furman v. Georgia, 408 U. S. 238 (1972). In my view this Court has no colorable basis, either in constitutional text or in national tradition, for imposing upon the States a further constitutional requirement that the sentencer consider mitigating evidence, see Walton v. Arizona, 497 U. S. 639, 671-673 (1990) (Scalia, J., opinion concurring in part and concurring in judgment). As this and other cases upon our docket amply show, that recently invented requirement has introduced not only a mandated arbitrariness quite inconsistent with Fur-man, but also an impenetrable complexity and hence a propensity to error that make a scandal and a mockery of the capital sentencing process.

Since in my view compliance with Furman is all that was required, any error committed by Chief Justice Holohan’s opinion in finding “heinousness” was harmless, and any failure by Justice Cameron’s special concurrence to reweigh raises no federal question. Accordingly, I would affirm.

       Richmond’s conviction became final on November 14,1983 — 15 months before Stringer’s conviction became final. I cannot imagine, however, that this distinction renders Stringer inapplicable to this case. The decision in Stringer rested on the premise that the rule against automatic affirmance “emerges not from any single case,” but from a “long line of authority,” Stringer v. Black, 603 U. S., at 232, and that “line of authority” consists entirely of cases decided before Richmond’s conviction became final, see id., at 227-232.